[Federal Register Volume 87, Number 60 (Tuesday, March 29, 2022)]
[Rules and Regulations]
[Pages 18078-18226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06148]



[[Page 18077]]

Vol. 87

Tuesday,

No. 60

March 29, 2022

Part II





Department of Homeland Security





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Department of Justice





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Executive Office for Immigration Review





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8 CFR Parts 208, 212, 235, et al.





Procedures for Credible Fear Screening and Consideration of Asylum, 
Withholding of Removal, and CAT Protection Claims by Asylum Officers; 
Interim Final Rule

Federal Register / Vol. 87 , No. 60 / Tuesday, March 29, 2022 / Rules 
and Regulations

[[Page 18078]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208, 212, and 235

[CIS No. 2692-21; DHS Docket No. USCIS-2021-0012]
RIN 1615-AC67

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003, 1208, 1235, and 1240

[A.G. Order No. 5369-2022]
RIN 1125-AB20


Procedures for Credible Fear Screening and Consideration of 
Asylum, Withholding of Removal, and CAT Protection Claims by Asylum 
Officers

AGENCY: Executive Office for Immigration Review, Department of Justice; 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security.

ACTION: Interim final rule with request for comments.

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SUMMARY: On August 20, 2021, the Department of Homeland Security 
(``DHS'') and the Department of Justice (``DOJ'') (collectively ``the 
Departments'') published a notice of proposed rulemaking (``NPRM'' or 
``proposed rule'') that proposed amending regulations governing the 
procedures for determining certain protection claims and available 
parole procedures for individuals subject to expedited removal and 
found to have a credible fear of persecution or torture. After a 
careful review of the comments received, the Departments are now 
issuing an interim final rule (``rule'' or ``IFR'') that responds to 
comments received in response to the NPRM and adopts the proposed rule 
with changes. Most significantly, the IFR provides that DHS's United 
States Citizenship and Immigration Services (``USCIS'') will refer 
noncitizens whose applications are not granted to DOJ's Executive 
Office for Immigration Review (``EOIR'') for streamlined removal 
proceedings. The IFR also establishes timelines for the consideration 
of applications for asylum and related protection by USCIS and, as 
needed, EOIR. This IFR responds to comments received in response to the 
NPRM and adopts the NPRM with changes as described in this rule. The 
Departments solicit further public comment on the IFR's revisions, 
which will be considered and addressed in a future rule.

DATES: Effective Date: This interim final rule is effective May 31, 
2022.
    Submission of public comments: Comments must be submitted on or 
before May 31, 2022. The electronic Federal Docket Management System 
will accept comments prior to midnight eastern time at the end of that 
day.

ADDRESSES: You may submit comments on the entirety of this interim 
final rule package, identified by DHS Docket No. USCIS-2021-0012, 
through the Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the website instructions for submitting comments.
    Comments submitted in a manner other than the one listed above, 
including emails or letters sent to the Departments' officials, will 
not be considered comments on the interim final rule and may not 
receive a response from the Departments. Please note that the 
Departments cannot accept any comments that are hand-delivered or 
couriered. In addition, the Departments cannot accept comments 
contained on any form of digital media storage devices, such as CDs/
DVDs and USB drives. The Departments also are not accepting mailed 
comments at this time. If you cannot submit your comment by using 
https://www.regulations.gov, please contact Samantha Deshommes, Chief, 
Regulatory Coordination Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
by telephone at (240) 721-3000 (not a toll-free call) for alternate 
instructions.

FOR FURTHER INFORMATION CONTACT: 
    For USCIS: Ren[aacute] Cutlip-Mason, Chief, Division of 
Humanitarian Affairs, Office of Policy and Strategy, U.S. Citizenship 
and Immigration Services, Department of Homeland Security, 5900 Capital 
Gateway Drive, Camp Springs, MD 20588-0009; telephone (240) 721-3000 
(not a toll-free call).
    For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy, 
Executive Office for Immigration Review, Department of Justice, 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
    B. Legal Authority
    C. Changes in the IFR
    1. Revisions to the Proposed DHS Regulations
    2. Revisions to the Proposed DOJ Regulations
    D. Provisions of the IFR
    1. Credible Fear Screening Process
    2. Applications for Asylum
    3. Proceedings for Further Consideration of the Application for 
Asylum by USCIS Through Asylum Merits Interview for Noncitizens With 
Credible Fear
    4. Streamlined Section 240 Removal Proceedings Before the 
Immigration Judge
    5. Parole
    E. Summary of Costs and Benefits
    F. Effective Date
III. Discussion of the IFR
    A. Credible Fear Screening Process
    B. Applications for Asylum
    C. Proceedings for Further Consideration of the Application for 
Asylum by USCIS Through Asylum Merits Interview for Noncitizens With 
Credible Fear
    D. Streamlined Section 240 Removal Proceedings Before the 
Immigration Judge
    1. Schedule of Proceedings
    a. Pre-Hearing Procedures
    b. Merits Hearing(s)
    2. Evidentiary Standard
    3. Timeline for Proceedings
    4. Continuances and Filing Extensions
    5. Consideration of Statutory Withholding of Removal and CAT 
Protection
    6. Exceptions to Streamlined Procedures
    E. Other Amendments Related to Credible Fear
    F. Parole
    G. Putative Reliance Interests
IV. Response to Public Comments on the Proposed Rule
    A. Summary of Public Comments
    B. General Feedback on the Proposed Rule
    1. General Support for the Proposed Rule
    a. Immigration Policy Benefits
    b. Positive Impacts on Applicants, Their Support Systems, and 
the Economy
    2. General Opposition to the Proposed Rule
    a. Immigration Policy Concerns
    b. Negative Impacts on Applicants and Their Support Systems
    c. Negative Impacts on U.S. Citizens and the Economy
    d. Other General Opposition to the Proposed Rule
    C. Basis for the Proposed Rule
    1. DOJ and DHS Statutory/Legal Authority
    2. Need for the Proposed Rule/DOJ and DHS Rationale
    3. Prior Immigration Rulemakings
    D. Proposed Changes
    1. Applicability
    2. Parole
    a. General Comments on Parole
    b. Change in Circumstances Under Which Parole May Be Considered
    c. Availability of Employment Authorization for Those in 
Expedited Removal Who Have Been Paroled From Custody
    d. Other Comments on Proposed Approach to Parole
    3. Credible Fear Screening Process
    a. General Comments on Credible Fear Screening Process
    b. ``Significant Possibility'' Standard for Protection Claims
    c. Due Process in Credible Fear Screening
    d. Removal of Mandatory Bars From Consideration

[[Page 18079]]

    e. Other Comments on the Proposed Credible Fear Screening 
Process
    4. Applications for Asylum
    a. Written Record of the Credible Fear Determination Created by 
USCIS, Together With the Service of the Credible Fear Determination, 
Treated as an Application for Asylum
    b. Date Positive Credible Fear Determination Served as Date of 
Filing and Receipt
    c. Inclusion of Applicant's Spouse and Children
    d. Due Process in Asylum Applications
    e. Other Comments on Proposed Provisions on Applications for 
Asylum
    5. Adjudication of Applications for Asylum for Noncitizens With 
Credible Fear
    a. DHS Interpretation of Statute in Creating a New Adjudication 
Process
    b. Review of Asylum Claim by an Asylum Officer, Rather Than by 
an Immigration Judge, in Section 240 Removal Proceedings
    c. Requirements for USCIS Asylum Merits Adjudication
    d. Failure To Appear
    e. Process for USCIS To Deny an Application for Asylum or Other 
Protection and Issue a Removal Order
    f. Other Comments on Proposed Adjudication of Applications for 
Asylum
    6. Application Review Proceedings Before an Immigration Judge
    a. Creation of New Limited Proceedings in Lieu of Section 240 
Removal Proceedings and Limitation on Relief to Asylum, Statutory 
Withholding of Removal, and Convention Against Torture Review Only
    b. De Novo Review of Full Asylum Hearing Record and 
Consideration of Additional Testimony and Evidence
    c. Immigration Judge's Discretion To Vacate Asylum Officer's 
Removal Order
    d. Immigration Judge's Authority To Review All Asylum Officer 
Decisions
    e. Appeal of Immigration Judge's Decision to the Board of 
Immigration Appeals
    f. Other Comments on Proposed Application Review Proceedings 
before Immigration Judges
    E. Other Issues Related to the Proposed Rulemaking
    1. Public and Stakeholder Input
    2. Severability
    3. Discretion and Phased Implementation
    a. Discretion
    b. Phased Implementation
    4. Comments on Immigration Court Inefficiencies and Bottlenecks
    F. Statutory and Regulatory Requirements
    1. Impacts and Benefits (E.O. 12866 and E.O. 13563)
    a. Methodology
    b. Population
    c. Costs or Transfers
    i. Impacts on the Credible Fear Asylum Population and Support 
Networks
    ii. Impacts on U.S. Workers, Companies, Economy
    iii. Impacts on Federal Government
    iv. Other Comments on Costs or Transfers
    d. Other Comments on Impacts and Benefits of the Proposed 
Rulemaking
    2. Paperwork Reduction Act
    3. Other Comments on Statutory and Regulatory Requirements
    G. Comments Outside of the Scope of This Rulemaking
V. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    B. Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)
    1. Summary of the Rule and Its Potential Impacts
    2. Background and Purpose of the Rule
    3. Population
    4. Impacts of the Rule
    a. Impacts to the Credible Fear Asylum Population
    b. Impacts to USCIS
    i. Total Quantified Estimated Costs of Regulatory Changes
    ii. Intra-Federal Government Sector Impacts
    c. Familiarization Costs, Benefits, and Transfers of Possible 
Early Labor Market Entry
    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

I. Public Participation

    The Departments invite all interested parties to participate in 
this rulemaking by submitting written data, views, comments, and 
arguments on all aspects of this interim final rule by the deadline 
stated above. The Departments also invite comments that relate to the 
economic, environmental, or federalism effects that might result from 
this interim final rule. Comments must be submitted in English, or an 
English translation must be provided. Comments that will provide the 
most assistance to the Departments in implementing these changes will 
reference a specific portion of the interim final rule, explain the 
reason for any recommended change, and include data, information, or 
authority that support such recommended change. Comments submitted in a 
manner other than those listed above, including emails or letters sent 
to the Departments' officials, will not be considered comments on the 
interim final rule and may not receive a response from the Departments.
    Instructions: If you submit a comment, you must include the agency 
name and the DHS Docket No. USCIS-2021-0012 for this rulemaking. All 
submissions will 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 that 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 
DHS Docket No. USCIS-2021-0012. 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

    On August 20, 2021, the Departments published an NPRM in the 
Federal Register proposing to amend the regulations governing the 
process for further consideration of asylum and related protection 
claims raised by individuals subject to expedited removal and found to 
have a credible fear of persecution or torture. See Procedures for 
Credible Fear Screening and Consideration of Asylum, Withholding of 
Removal, and CAT Protection Claims by Asylum Officers, 86 FR 46906 
(Aug. 20, 2021).
    The preamble discussion in the NPRM, including the detailed 
presentation of the need for reforming the system for processing asylum 
and related protection claims at the Southwest border, is generally 
adopted by reference in this IFR, except to the extent specifically 
noted in this IFR, or in the context of proposed regulatory text that 
is not contained in this IFR.
    To reform and improve the process, the NPRM proposed revisions to 8 
CFR parts 208, 235, 1003, 1208, and 1235. Those proposed revisions fell 
into five main categories. First, individuals subject to expedited 
removal and found to have a credible fear of persecution or torture 
would have their claims for asylum, withholding of removal under 
section 241(b)(3) of the Immigration and Nationality Act (``INA'' or 
``the Act'') (``statutory withholding of removal''), or

[[Page 18080]]

Convention Against Torture (``CAT'') \1\ protection initially 
adjudicated by USCIS following a nonadversarial interview before an 
asylum officer. Second, individuals granted protection by USCIS would 
be entitled to asylum, statutory withholding of removal, or protection 
under the CAT, as appropriate, without further adjudication. Third, 
individuals not granted protection would be ordered removed by the 
asylum officer but would have the ability to seek prompt, de novo 
review with an immigration judge (``IJ'') in EOIR through a newly 
established procedure, with appeal available to the Board of 
Immigration Appeals (``BIA'') and the Federal courts. Fourth, 
individuals placed in expedited removal proceedings would be eligible 
for consideration for parole from custody in accordance with section 
212(d)(5) of the Act, if DHS determined, in the exercise of its 
discretion and on a case-by-case basis, that parole is warranted 
because, inter alia, detention is unavailable or impracticable 
(including situations in which continued detention would unduly impact 
the health or safety of individuals with special vulnerabilities). 
Finally, the NPRM proposed to restore the expedited removal framework 
and credible fear screening processes that were in place before various 
regulatory changes made from late 2018 through late 2020. Specifically, 
the longstanding ``significant possibility'' screening standard would 
apply once more to all such protection claims arising from expedited 
removal proceedings initiated pursuant to section 235(b)(1) of the Act, 
and the mandatory bars to asylum and withholding of removal (with 
limited exception) would not apply at this initial screening stage.
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    \1\ Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 
100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 
20, 1994).
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    The comment period for the NPRM opened on August 20, 2021, and 
closed on October 19, 2021, with 5,235 public comments received. The 
Departments summarize and respond to the public comments below in 
Section IV of this preamble.

B. Legal Authority

    The Departments are publishing this IFR pursuant to their 
respective and joint authorities concerning asylum, statutory 
withholding of removal, and protection under the CAT. Section 235 of 
the INA provides that if an asylum officer determines that a noncitizen 
subject to expedited removal has a credible fear of persecution, the 
noncitizen shall receive ``further consideration of the application for 
asylum.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). This IFR 
addresses how that further consideration, including of the noncitizen's 
related claims to statutory withholding of removal and CAT protection, 
will occur.
    Section 208 of the INA authorizes the ``Secretary of Homeland 
Security or the Attorney General'' to ``grant asylum'' to a 
noncitizen--including a noncitizen subject to expedited removal under 
section 235(b) of the INA--``who has applied for asylum in accordance 
with the requirements and procedures established by the Secretary of 
Homeland Security or the Attorney General under this section.'' INA 
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); see INA 208(a)(1), 8 U.S.C. 
1158(a)(1) (referencing asylum applications by noncitizens subject to 
expedited removal under section 235(b) of the INA, 8 U.S.C. 1225(b)); 
see also INA 208(d)(1), (d)(5)(B), 8 U.S.C. 1158(d)(1), (d)(5)(B) 
(further authorizing rulemaking concerning asylum applications).
    These provisions of the INA reflect that the Homeland Security Act 
of 2002 (``HSA''), Public Law 107-296, 116 Stat. 2135, as amended, 
created DHS and transferred to it many functions related to the 
execution of Federal immigration law. See, e.g., HSA 101, 441, 451(b), 
471, 1511(d)(2), 6 U.S.C. 111, 251, 271(b), 551(d)(2). By operation of 
the HSA, certain references to the ``Attorney General'' in the INA are 
understood to refer to the Secretary. HSA 1517, 6 U.S.C. 557. As 
amended by the HSA, the INA thus ``charge[s]'' the Secretary ``with the 
administration and enforcement of this chapter and all other laws 
relating to the immigration and naturalization of aliens,'' INA 
103(a)(1), 8 U.S.C. 1103(a)(1), and grants the Secretary the power to 
``establish such regulations; . . . issue such instructions; and 
perform such other acts as he deems necessary for carrying out his 
authority'' under the immigration laws, INA 103(a)(3), 8 U.S.C. 
1103(a)(3). The Secretary's authority thus includes the authority to 
publish regulations governing the apprehension, inspection and 
admission, detention and removal, withholding of removal, and release 
of noncitizens \2\ encountered in the interior of the United States or 
at or between the U.S. ports of entry. See INA 235, 236, 241, 8 U.S.C. 
1225, 1226, 1231. Certain of the Secretary's authorities have been 
delegated within DHS to the Director of USCIS.\3\ USCIS asylum officers 
conduct credible fear interviews, make credible fear determinations, 
and determine whether a noncitizen's affirmative asylum application 
should be granted. See 8 CFR 208.2(a), 208.9(a), 208.30.
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    \2\ This rule uses the term ``noncitizen'' as equivalent to the 
statutory term ``alien.'' See INA 101(a)(3), 8 U.S.C. 1101(a)(3); 
Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020).
    \3\ See DHS, Delegation to the Bureau of Citizenship and 
Immigration Services, No. 0150.1 (June 5, 2003); see also 8 CFR 2.1, 
208.2(a), 208.30.
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    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'' his authorities under the 
INA. HSA 1102, INA 103(g)(2), 8 U.S.C. 1103(g)(2). The Attorney General 
also retains authority over certain individual immigration 
adjudications, including removal proceedings pursuant to section 240 of 
the INA, 8 U.S.C. 1229a (``section 240 removal proceedings,'' ``section 
240 proceedings,'' or ``240 proceedings''), and certain adjudications 
related to asylum applications, conducted by IJs within DOJ's EOIR. See 
HSA 1101(a), 6 U.S.C. 521(a); INA 103(g), 8 U.S.C. 1103(g). With 
limited exceptions, IJs within EOIR adjudicate asylum and withholding 
of removal applications filed by noncitizens during the pendency of 
section 240 removal proceedings, and IJs also adjudicate asylum 
applications referred by USCIS to the immigration court. 8 CFR 
1208.2(b), 1240.1(a); see INA 101(b)(4), 240(a)(1), 8 U.S.C. 
1101(b)(4), 1229a(a)(1); INA 241(b)(3), 8 U.S.C. 1231(b)(3).
    The United States is a party to the 1967 United Nations Protocol 
Relating to the Status of Refugees, January 31, 1967, 19 U.S.T. 6223, 
606 U.N.T.S. 268 (``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 of the Refugee Convention contains a 
qualified non-refoulement obligation to refrain from expelling or 
returning ``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.'' 19 U.S.T. at 6276. The United States 
implements its obligations under Article 33 of the Refugee Convention 
(via the Refugee Protocol) through the statutory withholding of removal

[[Page 18081]]

provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), which 
provides that a noncitizen may not be removed to a country where his or 
her life or freedom would be threatened on account of one of the 
protected grounds listed in Article 33 of the Refugee Convention.
    The Foreign Affairs Reform and Restructuring Act of 1998 
(``FARRA'') provides the Departments with 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. In addition, FARRA includes the 
following policy statement: ``It shall be the policy of the United 
States not to expel, extradite, or otherwise effect the involuntary 
return of any person to a country in which there are substantial 
grounds for believing the person would be in danger of being subjected 
to torture . . . . '' Id., sec. 2242(a). DHS and DOJ have promulgated 
various regulations implementing U.S. obligations under Article 3 of 
the CAT, consistent with FARRA. See, e.g., 8 CFR 208.16(c) through (f), 
208.17, and 208.18; Regulations Concerning the Convention Against 
Torture, 64 FR 8478 (Feb. 19, 1999), as corrected by 64 FR 13881 (Mar. 
23, 1999).
    Section 212 of the INA vests in the Secretary the discretionary 
authority to grant parole to applicants for admission on a case-by-case 
basis for urgent humanitarian reasons or significant public benefit. 
INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). Section 103 of the INA 
authorizes the Secretary to establish rules and regulations governing 
parole. INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3).

C. Changes in the IFR

    After carefully reviewing the public comments received in response 
to the NPRM, this IFR makes 23 changes to the regulatory provisions 
proposed in the NPRM, many of which were recommended or prompted by 
commenters. The regulatory changes pertain to both the DHS and DOJ 
regulations. As also described below, procedurally, the Departments 
could issue a final rule. However, the Departments are publishing this 
IFR rather than proceeding to a final rule in order to provide the 
public with an additional opportunity to comment. Although not legally 
required, the additional opportunity to comment on the IFR's changes to 
the NPRM is desirable given the new procedures and scheduling deadlines 
applicable to the IFR's streamlined EOIR process, the limited time 
between issuance of this IFR and when the first cases will be 
calendared for hearings, and the changes made to facilitate a shift 
from the proceedings proposed in the NPRM to the IFR's streamlined 240 
proceedings. The Departments therefore solicit further public comment 
on the IFR's revisions, which will be considered and addressed in a 
final rule.
1. Revisions to the Proposed DHS Regulations
    First, in new 8 CFR 208.30(g)(1)(i), this rule provides that USCIS 
may, in its discretion, reconsider a negative credible fear finding 
with which an IJ has concurred, provided such reconsideration is 
requested by the applicant or initiated by USCIS no more than 7 days 
after the concurrence by the IJ, or prior to the noncitizen's removal, 
whichever date comes first. USCIS, however, will not accept more than 
one such request for reconsideration of a negative credible fear 
finding.
    Second, this rule adds a new 8 CFR 208.4(b)(2) to clarify that 
noncitizens whose asylum applications are retained by USCIS for further 
consideration following a positive credible fear determination may 
subsequently amend or correct the biographic or credible fear 
information in the Form I-870, Record of Determination/Credible Fear 
Worksheet, or supplement the information collected during the process 
that concluded with a positive credible fear determination, provided 
the information is submitted directly to the asylum office no later 
than 7 days prior to the scheduled asylum interview, or for documents 
submitted by mail, postmarked no later than 10 days prior to the 
interview. This rule further provides that, upon the asylum officer 
finding good cause in an exercise of USCIS discretion, the asylum 
officer may consider amendments or supplements submitted after the 7- 
or 10-day submission deadline or may grant the applicant an extension 
of time during which the applicant may submit additional evidence, 
subject to the limitation on extensions described in new 8 CFR 
208.9(e)(2) and provided in new 8 CFR 208.4(b)(2). In new 8 CFR 
208.9(e)(2), this rule further provides that, in the absence of exigent 
circumstances, an asylum officer shall not grant any extensions for 
submission of additional evidence that would prevent a decision from 
being issued to the applicant within 60 days of service of the positive 
credible fear determination.
    Third, this rule provides in new 8 CFR 208.2(a)(1)(ii), 208.30(f), 
1208.2, and 1208.30(g) that USCIS may further consider the asylum 
application of a noncitizen found to have a credible fear of 
persecution or torture through a nonadversarial merits interview 
conducted by an asylum officer when such application is retained by 
USCIS or referred to USCIS by an IJ after an IJ has vacated a negative 
credible fear determination. Such nonadversarial merits interviews are 
known as ``Asylum Merits interviews'' and are governed by the 
procedures in 8 CFR 208.9.
    Fourth, this rule provides in new 8 CFR 208.9(b) that, in the case 
of a noncitizen whose case is retained by USCIS for an Asylum Merits 
interview, an asylum officer will also elicit all relevant and useful 
information bearing on the applicant's eligibility for statutory 
withholding of removal and CAT protection. This rule provides that if 
the asylum application is not granted, the asylum officer will 
determine whether the noncitizen is eligible for statutory withholding 
of removal in accordance with 8 CFR 208.16(b) or CAT protection 
pursuant to 8 CFR 208.16(c). See 8 CFR 208.16(a), (c). Even if the 
asylum officer determines that the applicant has established 
eligibility for statutory withholding of removal or protection under 
the CAT, the asylum officer shall proceed with referring the asylum 
application to the IJ for a hearing pursuant to 8 CFR 208.14(c)(1). See 
8 CFR 208.16(a). If the asylum application includes a dependent (that 
is, a spouse or child who is in the United States and is included on 
the principal applicant's application as a dependent, cf. 8 CFR 
208.30(a), 208.14(f)) who has not filed a separate application and the 
principal applicant is determined to not to be eligible for asylum, the 
asylum officer will elicit sufficient information to determine whether 
there is a significant possibility that the dependent has experienced 
or fears harm that would be an independent basis for protection prior 
to referring the family to the IJ for a hearing. See 8 CFR 208.9(b). If 
the asylum officer determines that there is a significant possibility 
that the dependent has experienced or fears harm that would be an 
independent basis for asylum, statutory withholding of removal, or 
protection under the CAT, the asylum officer shall inform the dependent 
of that determination. See id. USCIS also intends to inform dependents 
that they may request their own credible fear determination and

[[Page 18082]]

may separately file an asylum application if they choose to do so. If a 
spouse or child who was included in the principal's request for asylum 
does not separately file an asylum application that is adjudicated by 
USCIS, the principal's asylum application will be deemed by EOIR to 
satisfy EOIR's application filing requirements for the spouse or child 
as principal applicants. See 8 CFR 208.3(a)(2), 1208.3(a)(2).
    Fifth, this rule provides in 8 CFR 208.9(a)(1) that USCIS shall not 
schedule an Asylum Merits interview for further consideration of an 
asylum application following a positive credible fear determination 
fewer than 21 days after the noncitizen has been served a record of the 
positive credible fear determination. The asylum officer shall conduct 
the interview within 45 days of the date that the positive credible 
fear determination is served on the noncitizen, subject to the need to 
reschedule an interview due to exigent circumstances. See 8 CFR 
208.9(a)(1).
    Sixth, this rule includes language from existing regulations, 
currently in effect, in 8 CFR 208.9(d), that was inadvertently not 
included in the NPRM's proposed regulatory text related to USCIS's 
discretion to limit the length of a statement or comment and require 
its submission in writing. See 8 CFR 208.9(d)(1).
    Seventh, this rule removes language proposed in the NPRM in 8 CFR 
208.9(f)(2) related to having the Asylum Merits record include verbatim 
audio or video recordings, and provides that the interview will be 
recorded and a verbatim transcript of the interview shall be included 
in the record. See 8 CFR 208.9(f)(2).
    Eighth, this rule clarifies in 8 CFR 208.9(g)(2) that if a USCIS 
interpreter is unavailable, USCIS will attribute any resulting delay to 
USCIS for the purposes of employment authorization pursuant to 8 CFR 
208.7. The rule continues to provide that, for asylum applications 
retained by USCIS for further consideration, if the applicant is unable 
to proceed effectively in English, the asylum officer shall arrange for 
the assistance of an interpreter in conducting the Asylum Merits 
interview. See 8 CFR 208.9(g)(2).
    Ninth, although the NPRM proposed to amend 8 CFR 208.10(a) to 
provide that, for noncitizens whose cases are retained by USCIS for 
further consideration of their asylum application after a positive 
credible fear determination, failure of a noncitizen to appear for an 
Asylum Merits interview might result in the issuance of an order of 
removal, no changes to 8 CFR 208.10(a) are being made in this IFR. 
Failure to appear may result in referral of the noncitizen to section 
240 removal proceedings before an IJ as well as dismissal of the asylum 
application. See 8 CFR 208.10(a).
    Tenth, in 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii), this rule 
establishes the regulatory authority for consideration for parole of 
noncitizens in expedited removal or in expedited removal with pending 
credible fear determinations consistent with the current regulation at 
8 CFR 212.5(b).
    Eleventh, the rule includes a technical amendment to 8 CFR 212.5(b) 
to incorporate a reference to 8 CFR 235.3(b).
    Twelfth, in 8 CFR 235.3(c)(2), this rule includes a technical 
amendment to establish the regulatory authority for consideration for 
parole of noncitizens whose asylum applications are retained by USCIS 
for further consideration following a positive credible fear 
determination consistent with the current regulation at 8 CFR 212.5(b).
    Thirteenth, the IFR includes edits to 8 CFR 208.14 and 8 CFR 
1208.14 to emphasize that asylum officers' decisions on approval, 
denial, referral, or dismissal of an asylum application remain subject 
to review within USCIS, and an edit to 8 CFR 208.14(c)(1) to make clear 
that an asylum applicant described in 8 CFR 208.14(c)(4)(ii)(A), if not 
granted asylum, may first be placed into expedited removal and receive 
a positive credible fear screening before being referred to an IJ.
2. Revisions to the Proposed DOJ Regulations
    In the fourteenth change from the NPRM, this rule neither adopts 
the NPRM's proposal to create a new IJ review process when USCIS does 
not grant asylum nor requires the applicant to affirmatively request 
such review. Instead, this rule requires DHS to refer noncitizens whose 
applications for asylum are not granted to section 240 removal 
proceedings by issuing a Notice to Appear (``NTA''). However, this rule 
adds 8 CFR 1240.17 to DOJ's regulations, which will impose streamlining 
measures to enable such proceedings to be completed more expeditiously 
than ordinary section 240 proceedings involving cases that originate 
from the credible fear process. The rules and procedures that apply 
during all section 240 proceedings will generally apply to cases 
governed by the new 8 CFR 1240.17, but the rule's additional procedural 
requirements will further ensure efficient adjudication while 
preserving fairness.
    Fifteenth, this rule does not adopt the NPRM's proposed evidentiary 
limitations, which would have required the noncitizen to demonstrate 
that any additional evidence or testimony to be considered by the IJ 
was not duplicative of that considered by the asylum officer and was 
necessary to fully develop the record. Instead, with the exception of 
time limits, the long-standing evidentiary standards for section 240 
removal proceedings will apply as provided in new 8 CFR 1240.17(g)(1). 
To ensure expeditious adjudication, this rule imposes deadlines for the 
submission of evidence as specified in new 8 CFR 1240.17(f). In 
general, new 8 CFR 1240.17(f)(2) requires the respondent to submit any 
additional documentary evidence by the time of the status conference 
which, under new 8 CFR 1240.17(f)(1), is held 30 days, or the next 
available date no later than 35 days, after the master calendar hearing 
unless a continuance or a filing extension is granted. Under new 8 CFR 
1240.17(f)(3)(i), DHS must file any documents 15 days prior to the 
merits hearing or, if the IJ determines a merits hearing is not 
warranted, 15 days following the status conference. New 8 CFR 
1240.17(f)(3)(ii) allows the respondent to submit a supplemental filing 
replying to DHS and identifying any additional witnesses or 
documentation 5 days prior to the merits hearing or, if the IJ 
determines a merits hearing is not warranted, 25 days following the 
status conference. These deadlines may be extended in accordance with 
the continuances and extension provisions in new 8 CFR 1240.17(h), and 
an IJ may otherwise accept late-filed evidence pursuant to new 8 CFR 
1240.17(g)(2) under certain circumstances, including if required to do 
so under statute or the Constitution.
    Sixteenth, the rule provides that streamlined section 240 removal 
proceedings for cases covered by the new 8 CFR 1240.17, where the USCIS 
Asylum Merits interview record is transmitted to EOIR for review, will 
generally be adjudicated under an expedited timeline. The master 
calendar hearing will occur 30 to 35 days after DHS commences 
proceedings as provided in new 8 CFR 1240.17(b) and (f)(1). Any merits 
hearing will be held 60 days after the master calendar hearing, or on 
the next available date no later than 65 days after the master calendar 
hearing, see 8 CFR 1240.17(f)(2), subject to continuance and filing 
extension requests as outlined in new 8 CFR 1240.17(h). This rule also 
imposes time limits for an IJ to issue a decision as provided in new 8 
CFR

[[Page 18083]]

1240.17(f)(5). To ensure expeditious adjudication, this rule adopts the 
NPRM's requirement that USCIS must file the complete record of 
proceedings for the Asylum Merits interview, including the transcript 
and decision, with the immigration court and serve it on the respondent 
pursuant to new 8 CFR 1240.17(c). Additionally, as in the NPRM, this 
rule does not require the respondent to complete and file a new asylum 
application, but instead provides that the record of the positive 
credible determination shall be treated as satisfying the application 
filing requirements subject to any supplementation or amendment, and 
shall further be deemed to satisfy EOIR's application filing 
requirements for any spouse or child included in the cases referred by 
USCIS and who has not separately filed an asylum application that was 
adjudicated by USCIS, as provided in new 8 CFR 1208.3(a)(2). See 8 CFR 
1240.17(e).
    Seventeenth, to prepare cases for expeditious adjudication, this 
rule requires IJs to hold status conferences to take place 30 days 
after the master calendar hearing, or if a hearing cannot be held on 
that date, on the next available date no later than 35 days after the 
master calendar hearing, as outlined in new 8 CFR 1240.17(f)(2). This 
rule requires both parties to participate at the status conference, 
although the level of participation required by the respondent depends 
on whether the respondent has legal representation. At a minimum, as 
required by new 8 CFR 1240.17(f)(2)(i)(A), if the respondent will 
contest removal or seek any protection(s) for which the asylum officer 
did not determine the respondent eligible, the respondent shall 
indicate whether the respondent intends to testify, present any 
witnesses, or offer additional documentation. If a respondent 
thereafter obtains legal representation, nothing in the IFR prohibits 
respondent's counsel from supplementing statements or submissions made 
by the respondent during the status conference so long as there is no 
delay to the merits hearing or a filing deadline or, if the case will 
be delayed, the respondent satisfies the IFR's provisions governing 
continuances and filing extensions. Under new 8 CFR 1240.17(f)(2)(ii) 
and (f)(3), if DHS will participate in the case, DHS shall, at the 
status conference or in a written statement filed no later than 15 days 
prior to the scheduled merits hearing (or if the IJ determines that no 
such hearing is warranted, no later than 15 days following the status 
conference), set forth its position on the respondent's application and 
identify contested issues of law or fact, among other things. Where DHS 
has elected to participate in the case but does not timely provide its 
position as required under paragraph (f)(2)(ii), the IJ has authority 
pursuant to new 8 CFR 1240.17(f)(3)(i) to deem claims or arguments 
previously advanced by the respondent unopposed, subject to certain 
exceptions. The purpose of the status conference and these procedural 
requirements is to identify and narrow the issues and ready the case 
for a merits hearing.
    Eighteenth, under new 8 CFR 1240.17(f)(2)(i)(B), a respondent may 
choose to concede removability and not seek asylum, in which case the 
IJ will issue an order of removal and deny asylum, but the IJ shall, 
with a limited exception, give effect to a determination by an asylum 
officer that the respondent is eligible for statutory withholding of 
removal or protection under the CAT. DHS may not appeal a grant of 
statutory withholding of removal or protection under the CAT in this 
context to the BIA except to argue that the IJ should have denied the 
application(s) based on certain evidence, as provided in new 8 CFR 
1240.17(i)(2).
    Nineteenth, new 8 CFR 1240.17(h) establishes standards for 
continuances during these streamlined section 240 removal proceedings. 
The rule adopts a ``good cause'' standard for respondent-requested 
continuances or filing extensions that would delay any merits hearing 
up to certain limits as detailed in new 8 CFR 1240.17(h)(2)(i). Any 
such continuance or extension generally shall not exceed 10 days. When 
the respondent has received continuances or filing extensions that 
cause a merits hearing to occur more than 90 days after the master 
calendar hearing, the rule requires the respondent to meet a heightened 
standard for further continuances or extensions as provided in new 8 
CFR 1240.17(h)(2)(ii). Pursuant to new 8 CFR 1240.17(h)(2)(iii), any 
further continuances or extensions requested by the respondent that 
would cause a merits hearing to occur more than 135 days after the 
master calendar hearing may be granted only if the respondent 
demonstrates that failure to grant the continuance or extension would 
be contrary to statute or the Constitution. DHS may receive 
continuances or extensions based on significant Government need, as 
outlined in new 8 CFR 1240.17(h)(3), which will not count against the 
limits on respondent-requested continuances. Further, as provided in 
new 8 CFR 1240.17(h)(2)(iv) and (h)(4), any delay due to exigent 
circumstances shall not count toward the limits on continuances or 
extensions.
    Twentieth, new 8 CFR 1240.17(f)(4)(i) and (ii) provide that in 
certain circumstances the IJ may decide the respondent's application 
without holding a merits hearing, including where neither party has 
elected to provide testimony and DHS has declined to cross-examine the 
respondent or where the IJ intends to grant the application and DHS has 
not elected to examine the respondent or present evidence or witnesses. 
Under these provisions, the IJ shall still hold a hearing if the IJ 
decides that a hearing is necessary to fulfill the IJ's duty to fully 
develop the record.
    Twenty-first, new 8 CFR 1240.17(i)(2) provides that, where the 
asylum officer does not grant asylum but determines the respondent is 
eligible for statutory withholding of removal or CAT relief, and where 
the IJ subsequently denies asylum and issues a removal order, the IJ 
shall generally give effect to the asylum officer's determination(s). 
In such circumstances, the IJ shall issue a removal order, but the IJ 
shall give effect to the asylum officer's determination by granting 
statutory withholding of removal or protection under the CAT unless DHS 
presents evidence or testimony that specifically pertains to the 
respondent, that was not in the record of proceedings for the USCIS 
Asylum Merits interview, and that demonstrates that the respondent is 
not eligible for the protection in question.
    Twenty-second, this rule sets forth certain exceptions from the 
procedures and timelines summarized above. Under new 8 CFR 1240.17(k), 
such exceptions include the following circumstances: The respondent was 
under the age of 18 on the date that the NTA was issued and is not in 
consolidated removal proceedings with an adult family member; the 
respondent has produced evidence demonstrating prima facie eligibility 
for relief or protection other than asylum, statutory withholding of 
removal, voluntary departure, or CAT relief and the respondent is 
seeking to apply for, or has applied for, such relief or protection; 
the respondent has produced evidence supporting a prima facie showing 
that the respondent is not subject to removal, and the question of 
removability cannot be resolved simultaneously with the adjudication of 
the applications for asylum and related protection; the IJ finds the 
respondent subject to removal to a country other than the country or 
countries in which the respondent claimed a fear of persecution, 
torture, or both before the asylum officer and the respondent claims a 
fear of persecution, torture, or

[[Page 18084]]

both in that alternative country or countries; the case is on remand or 
has been reopened following the IJ's order; or the respondent exhibits 
indicia of mental incompetency.
    Finally, DOJ is making technical edits in 8 CFR 1003.42 to conform 
with changes to DHS regulations proposed in the NPRM and adopted in 
this rule related to the credible fear screening process in new 8 CFR 
208.30(e).

D. Provisions of the IFR

    The Departments carefully considered the 5,235 public comments 
received, and this IFR generally adopts the framework proposed in the 
NPRM with certain modifications as explained in this rule. This rule 
also relies on the justifications articulated in the NPRM, except as 
reflected in this preamble.
1. Credible Fear Screening Process
    The Departments are generally returning to the regulatory framework 
governing the credible fear screening process in place before various 
regulatory changes were made from the end of 2018 through the end of 
2020, which currently are not in effect.\4\ As provided in this IFR, 
DHS is amending 8 CFR 208.30(b) to return to providing that noncitizens 
subject to expedited removal who indicate an intention to apply for 
asylum, or who express a fear of persecution or torture, or a fear of 
return to the noncitizen's country, shall be screened by a USCIS asylum 
officer for a credible fear of persecution or torture (rather than a 
credible fear of persecution, reasonable possibility of persecution, or 
reasonable possibility of torture). All references in 8 CFR 208.30 and 
8 CFR 235.6 to a ``credible fear of persecution, reasonable possibility 
of persecution, or a reasonable possibility of torture'' are replaced 
with ``credible fear of persecution or torture'' or ``credible fear.''
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    \4\ On November 9, 2018, the Departments issued an IFR that 
barred noncitizens who entered the United States in contravention of 
a covered presidential proclamation or order from eligibility for 
asylum, required that they receive a negative credible fear finding 
on their asylum claims, and required that their statutory 
withholding and CAT claims be considered under the higher reasonable 
fear screening standard. See Aliens Subject to a Bar on Entry Under 
Certain Presidential Proclamations; Procedures for Protection 
Claims, 83 FR 55934, 55939, 55943 (Nov. 9, 2018) (``Presidential 
Proclamation Bar IFR''). A month later, the U.S. District Court for 
the Northern District of California preliminarily enjoined the 
Departments from implementing the IFR, E. Bay Sanctuary Covenant v. 
Trump, 354 F. Supp. 3d 1094, 1121 (N.D. Cal. 2018), and the Ninth 
Circuit affirmed, E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 
680 (9th Cir. 2021).
    On July 16, 2019, the Departments published another IFR, 
entitled ``Asylum Eligibility and Procedural Modifications,'' 84 FR 
33829 (July 16, 2019) (``Third Country Transit (TCT) Bar IFR''), 
which generally barred noncitizens from asylum eligibility if they 
entered or attempted to enter the United States across the Southwest 
border after failing to apply for protection from persecution or 
torture while in any one of the third countries through which they 
transited, required a negative credible fear finding for such 
noncitizens' asylum claims, and required their withholding and CAT 
claims be considered under the higher reasonable fear screening 
standard. Id. at 33837-38. The U.S. District Court for the District 
of Columbia vacated the TCT Bar IFR. Capital Area Immigrants' Rights 
Coal. v. Trump, 471 F. Supp. 3d 25, 45-57 (D.D.C. 2020). The 
Departments issued a final rule on December 17, 2020, entitled 
``Asylum Eligibility and Procedural Modifications,'' 85 FR 82260 
(Dec. 17, 2020) (``TCT Bar rule''), which again attempted to bar 
from asylum eligibility those noncitizens who transited through a 
third country before arriving at the border. The U.S. District Court 
for the Northern District of California subsequently issued a 
preliminary injunction against implementation of the TCT Bar rule, 
which remains in place as of this writing. E. Bay Sanctuary Covenant 
v. Barr, 519 F. Supp. 3d 663, 668 (N.D. Cal. Feb. 2021).
    Around the same time that the Departments issued the final TCT 
Bar rule, they also issued the final rule entitled ``Procedures for 
Asylum and Withholding of Removal; Credible Fear and Reasonable Fear 
Review,'' 85 FR 80274 (Dec. 11, 2020) (``Global Asylum rule''). That 
rule revised the credible fear screening process to require that all 
the mandatory bars to asylum and withholding be considered during 
the credible fear screening process and established a new screening 
standard for withholding of removal and CAT protection. On January 
8, 2021, the U.S. District Court for the Northern District of 
California preliminarily enjoined the Departments from implementing 
the Global Asylum rule. Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 
966, 977 (N.D. Cal. 2021) (``Pangea II''). That preliminary 
injunction remains in place as of this writing.
    Finally, the Departments also published a final rule entitled 
``Security Bars and Processing,'' 85 FR 84160 (Dec. 23, 2020) 
(``Security Bars rule''), which added an additional bar to asylum 
and withholding that would be applied to the credible fear screening 
process. The Departments have delayed the Security Bars rule's 
effective date to December 31, 2022, as the Departments consider 
possible action to rescind or revise the rule. See Security Bars and 
Processing; Delay of Effective Date, 86 FR 73615 (Dec. 28, 2021).
---------------------------------------------------------------------------

    DHS is further amending 8 CFR 208.30(b) to provide that the asylum 
officer to whom such a noncitizen is referred for a credible fear 
screening may, in USCIS's discretion and with supervisory concurrence, 
refer the noncitizen for proceedings under section 240 of the Act 
without making a credible fear determination.
    DHS is amending 8 CFR 208.30(c) to provide for the inclusion of a 
noncitizen's concurrently arriving spouse or child in the noncitizen's 
positive credible fear evaluation and determination, unless the 
noncitizen declines such inclusion. Additionally, DHS is amending 8 CFR 
208.30(c) to provide asylum officers with the discretion to include a 
noncitizen's other concurrently arriving family members in the 
noncitizen's positive credible fear evaluation and determination for 
purposes of family unity.
    DHS is amending 8 CFR 208.30(e) to return to defining ``credible 
fear of persecution'' as ``a significant possibility, taking into 
account the credibility of the statements made by the [noncitizen] in 
support of the [noncitizen's] claim and such other facts as are known 
to the [asylum] officer, that the [noncitizen] can establish 
eligibility for asylum under section 208 of the Act or for withholding 
of removal under section 241(b)(3) of the Act.'' DHS is further 
amending 8 CFR 208.30(e) to return to defining ``credible fear of 
torture'' as ``a significant possibility that the [noncitizen] is 
eligible for withholding of removal or deferral of removal under the 
Convention Against Torture, pursuant to [8 CFR] 208.16 or [ ] 208.17.''
    Additionally, as provided in the NPRM, DHS is amending 8 CFR 
208.30(e)(5) to return to the existing and two-decade-long practice of 
not applying at the credible fear screening the mandatory bars to 
applying for, or being granted, asylum that are contained in sections 
208(a)(2)(B)-(D) and (b)(2) of the Act, including any bars established 
by regulation under section 208(b)(2)(C) of the Act, or bars to 
eligibility for statutory withholding of removal, with limited 
exceptions. DHS is maintaining the regulations related to the threshold 
screening under the safe third country agreement with Canada in 8 CFR 
208.30(e)(6), but making technical edits to change ``credible fear of 
persecution, reasonable possibility of persecution, or reasonable 
possibility of torture'' to ``credible fear of persecution or torture'' 
to align the terminology with the rest of this IFR. DHS will continue 
to require supervisory review of all credible fear determinations 
before they can become final. See 8 CFR 208.30(e)(8).
    Consistent with the NPRM, this IFR amends 8 CFR 208.30(g) to return 
to providing that once an asylum officer has made a negative credible 
fear determination, if a noncitizen refuses or fails to either request 
or decline IJ review, such refusal or failure to make an indication 
will be considered a request for IJ review. In those instances, the 
noncitizen will be served with a Form I-863, Notice of Referral to 
Immigration Judge. If, upon review of an asylum officer's negative 
credible fear determination, the IJ finds the noncitizen possesses a 
credible fear of persecution or torture, the IJ shall vacate the Form 
I-860, Notice and Order of Expedited Removal, and remand the case to 
DHS for further consideration of the application for asylum. 
Alternatively, DHS may commence section 240 removal proceedings, during 
which the noncitizen may file an

[[Page 18085]]

application for asylum and withholding of removal. If the IJ concurs 
with the negative credible fear determination, DHS can execute the 
individual's expedited removal order, promptly removing the individual 
from the United States.
    In comparison to the NPRM, in this IFR, DHS is amending 8 CFR 
208.30(g) to provide that USCIS may, in its discretion, reconsider a 
negative credible fear determination with which an IJ has concurred, 
provided such reconsideration is requested by the noncitizen or 
initiated by USCIS no more than 7 days after the concurrence by the IJ, 
or prior to the noncitizen's removal, whichever date comes first, and 
further provided that no previous request for consideration has already 
been made.\5\ There is no change for noncitizens who do not elect to 
have their determination reviewed by an IJ. Any reconsideration request 
made prior to review by an IJ will be treated as an election for review 
by an IJ. See 8 CFR 208.30(g)(1).
---------------------------------------------------------------------------

    \5\ Reconsideration requests made by noncitizens of negative 
credible fear determinations already affirmed by an IJ are 
colloquially known as requests for reconsideration (``RFRs'').
---------------------------------------------------------------------------

2. Applications for Asylum
    Under section 235(b)(1)(B)(ii) of the Act, noncitizens who receive 
a positive credible fear determination from a USCIS asylum officer are 
referred for ``further consideration of the application for asylum.'' 
As provided in the NPRM, this rule establishes a new process by which 
such ``further consideration'' may occur, wherein a noncitizen will 
have their asylum claim adjudicated following an Asylum Merits 
interview before a USCIS asylum officer in the first instance, rather 
than by an IJ in section 240 removal proceedings. See 8 CFR 208.30(f).
    In issuing both the NPRM and this IFR, the Departments concluded 
that the expedited removal process presented an opportunity for 
establishing a more efficient process for making protection 
determinations for those coming to our borders. The credible fear 
interview process creates a unique opportunity for the protection claim 
to be presented to a trained asylum officer and documented; that 
documentation can then initiate and facilitate a merits adjudication. 
Unlike those noncitizens who are placed directly into section 240 
removal proceedings after apprehension at the border, noncitizens 
placed instead into expedited removal and who subsequently make a fear 
claim are referred to USCIS for an interview under oath. Rather than 
move noncitizens who receive positive credible fear determinations 
directly into section 240 proceedings--which is what happens to 
noncitizens apprehended at the border who are not placed into expedited 
removal--the Departments have determined that it is appropriate to 
establish a more efficient process that includes the involvement of 
USCIS and the creation of a documented record of the noncitizen's 
protection claim during the credible fear screening process. By 
treating the record of the credible fear determination as an asylum 
application and by issuing a follow-up interview notice when the 
credible fear determination is served, USCIS will be able to promptly 
schedule and conduct an interview on the merits of the noncitizen's 
protection claims and issue a final decision. For those noncitizens not 
granted asylum by USCIS, the IFR's process will also create a more 
complete record of the principal applicant's protection claims, as well 
as those of their spouse or child included on the application and 
interviewed during the Asylum Merits interview. EOIR can then use the 
rationale of the USCIS determination in a streamlined section 240 
removal proceeding. Consistent with the NPRM, DHS is amending 8 CFR 
208.3 to address application and filing requirements for noncitizens 
over whom USCIS retains jurisdiction for further consideration of 
asylum applications pursuant to the Asylum Merits process established 
by this rule. DHS is amending 8 CFR 208.3(a) to provide, in new 8 CFR 
208.3(a)(2), that the written record of a positive credible fear 
finding satisfies the asylum application filing requirements in 8 CFR 
208.3(a)(1). DHS is further amending 8 CFR 208.3(a) to provide, in new 
8 CFR 208.3(a)(1) and (2), that noncitizens placed in the Asylum Merits 
process are subject neither to the general requirement in 8 CFR 
208.3(a)(1) that asylum applicants file a Form I-589, Application for 
Asylum and for Withholding of Removal, nor to the benefit request 
submission requirements of 8 CFR 103.2.
    Consistent with the NPRM, DHS is also amending 8 CFR 208.3(a) to 
provide that the written record of the positive credible fear 
determination shall be considered a complete asylum application for 
purposes of the one-year filing deadline at 8 CFR 208.4(a), requests 
for employment authorization based on a pending application for asylum 
under 8 CFR 208.7, and the completeness requirement at 8 CFR 208.9(a); 
shall not be subject to the requirements of 8 CFR 103.2; and shall be 
subject to the conditions and consequences in 8 CFR 208.3(c) upon 
signature at the Asylum Merits interview, as described in new 8 CFR 
208.3(a)(2). DHS is amending 8 CFR 208.3(c)(3) to provide that receipt 
of a properly filed asylum application under 8 CFR 208.3(a) commences 
the period after which a noncitizen may file an application for 
employment authorization based on a pending asylum application. DHS is 
further amending 8 CFR 208.3(a) to provide, in new 8 CFR 208.3(a)(2), 
that the date that the positive credible fear determination is served 
on the noncitizen shall be considered the date of filing and receipt. 
DHS is further amending 8 CFR 208.3(a) to provide, in new 8 CFR 
208.3(a)(2), that biometrics captured during expedited removal for the 
principal applicant and any dependents may be used to verify identity 
and for criminal and other background checks for purposes of an asylum 
application under the jurisdiction of USCIS and any subsequent 
immigration benefit.
    DHS is amending current 8 CFR 208.4(c), rather than 8 CFR 
208.3(a)(2) as provided in the NPRM, and redesignating it as 8 CFR 
208.4(b), with certain modifications as compared to the NPRM, to 
provide the noncitizen the opportunity to subsequently amend or correct 
the biographic or credible fear information in the Form I-870, Record 
of Determination/Credible Fear Worksheet, or supplement the information 
collected during the process that concluded with a positive credible 
fear determination, within a specified time frame (7 or 10 days, 
depending on the method of submission) prior to the scheduled Asylum 
Merits interview. DHS is further amending current 8 CFR 208.4(c) to 
provide, in new 8 CFR 208.4(b)(2), that, finding good cause in an 
exercise of USCIS's discretion, the asylum officer may consider 
amendments or supplements submitted after the 7- or 10-day submission 
deadline or may grant the applicant an extension of time during which 
the applicant may submit additional evidence, subject to the limitation 
on extensions described in 8 CFR 208.9(e)(2). In the absence of exigent 
circumstances, an asylum officer shall not grant any extensions for 
submission of additional evidence that would prevent an Asylum Merits 
decision from being issued to the applicant within 60 days of service 
of the positive credible fear determination, as described in new 8 CFR 
208.9(e)(2).

[[Page 18086]]

3. Proceedings for Further Consideration of the Application for Asylum 
by USCIS Through Asylum Merits Interview for Noncitizens With Credible 
Fear
    Under the framework in place prior to this rulemaking, if an asylum 
officer determined that a noncitizen subject to expedited removal had a 
credible fear of persecution or torture, DHS placed the noncitizen 
before an immigration court for adjudication of the noncitizen's claims 
by initiating section 240 removal proceedings. Section 235(b)(1)(B)(ii) 
of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), however, authorizes a procedure 
for ``further consideration of [an] application for asylum'' that may 
commence outside of section 240 removal proceedings.
    Consistent with the NPRM, DHS is amending 8 CFR 208.2(a) to provide 
that USCIS may take initial jurisdiction to further consider the 
application for asylum, in an Asylum Merits interview, of a noncitizen, 
other than a stowaway and a noncitizen physically present in or 
arriving in the Commonwealth of the Northern Mariana Islands 
(``CNMI''), found to have a credible fear of persecution or torture. 
DHS is amending 8 CFR 208.9(b) to provide that the purpose of the 
Asylum Merits interview shall be to elicit all relevant and useful 
information bearing on the applicant's eligibility for asylum. In 
comparison to the NPRM, DHS is further amending 8 CFR 208.9(b) to 
provide that, in the case of a noncitizen whose case is retained by 
USCIS for an Asylum Merits interview, an asylum officer will also 
elicit all relevant and useful information bearing on the applicant's 
eligibility for statutory withholding of removal and CAT protection. 
This rule further provides in 8 CFR 208.16(a) that, in the case of a 
noncitizen whose case is retained by or referred to USCIS for an Asylum 
Merits interview and whose asylum application is not approved, the 
asylum officer will determine whether the noncitizen is eligible for 
statutory withholding of removal under 8 CFR 208.16(b) or withholding 
or deferral of removal pursuant to the CAT under 8 CFR 208.16(c).
    In comparison to the NPRM, DHS is amending 8 CFR 208.9(a) to 
provide that USCIS shall not schedule an Asylum Merits interview for 
further consideration of an asylum application following a positive 
credible fear determination fewer than 21 days after the noncitizen has 
been served a record of the positive credible fear determination. The 
asylum officer shall conduct the interview within 45 days of the date 
that the positive credible fear determination is served on the 
noncitizen subject to the need to reschedule an interview due to 
exigent circumstances, as provided in new 8 CFR 208.9(a)(1). Consistent 
with the NPRM, DHS is amending 8 CFR 208.9 to specify the procedures 
for such interviews before an asylum officer. With limited exception, 
these amendments generally provide that the same procedures applicable 
to affirmative asylum interviews will also apply to interviews under 
this rule, such as the right to have counsel present, 8 CFR 208.9(b), 
at no expense to the Government.
    In this IFR, DHS also includes language from existing regulations 
in 8 CFR 208.9(d) that was inadvertently not included in the NPRM's 
proposed regulatory text related to the USCIS's discretion to limit the 
length of a statement or comment and require its submission in writing. 
As was stated in the NPRM, DHS is amending 8 CFR 208.9(f) to provide, 
in new 8 CFR 208.9(f)(2), that for Asylum Merits interviews, a verbatim 
transcript of the interview will be included in the referral package to 
the immigration judge. However, DHS is removing the language proposed 
in the NPRM regarding the record also including a verbatim audio or 
video recording in new 8 CFR 208.9(f)(2). DHS believes that recording 
the interview in order to produce a verbatim transcript that will be 
included in the record is sufficient to meet the aims of the rule.\6\
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    \6\ The Departments may consider making available a process by 
which parties to EOIR proceedings under 8 CFR 1240.17 will be able 
to timely review, upon request, the recording of the USCIS Asylum 
Merits interview.
---------------------------------------------------------------------------

    DHS is amending 8 CFR 208.9(g) to provide, in new 8 CFR 
208.9(g)(2), that if a noncitizen is unable to proceed effectively in 
English at an Asylum Merits interview, the asylum officer shall arrange 
for the assistance of an interpreter in conducting the interview. In 
comparison to the NPRM, this rule provides in new 8 CFR 208.9(g)(2) 
that if a USCIS interpreter is unavailable, USCIS will attribute any 
resulting delay to USCIS for purposes eligibility for employment 
authorization.
    In comparison to the revisions proposed in the NPRM, this IFR 
leaves existing 8 CFR 208.10 unchanged--thus providing that a 
noncitizen's failure to appear for an Asylum Merits interview may 
result in the referral of the application for consideration in section 
240 removal proceedings before an IJ (as opposed to the issuance of an 
order of removal). See 8 CFR 208.10(a)(1).
    In 8 CFR 208.14(b), USCIS continues to implement its authority to 
grant asylum in any case within its jurisdiction. In comparison to the 
NPRM, DHS is amending 8 CFR 208.14(c) and 208.16(a) and (c) to provide 
that if an asylum officer conducting an Asylum Merits interview for 
further consideration of an asylum application after a positive 
credible fear determination does not grant asylum to an applicant, the 
asylum officer will determine whether the applicant is eligible for 
statutory withholding of removal or CAT protection. The asylum officer 
will not issue an order of removal as proposed in the NPRM, nor issue a 
final decision on an applicant's request for statutory withholding of 
removal or CAT protection. Instead, the asylum officer will refer the 
application--together with the appropriate charging document and 
written findings of, and the determination on, eligibility for 
statutory withholding of removal or CAT protection--to an IJ for 
adjudication in streamlined section 240 removal proceedings. See 8 CFR 
208.14(c); 8 CFR 208.16(a), (b), (c)(4); 8 CFR 1208.14(c). The referral 
of the asylum application of a principal applicant to the IJ will also 
include any dependent of that principal applicant, as appropriate. See 
8 CFR 208.3(a)(2), 208.14(c)(1). If the asylum application includes a 
dependent who has not filed a separate application and the principal 
applicant is determined to not to be eligible for asylum, the asylum 
officer will elicit sufficient information to determine whether there 
is a significant possibility that the dependent has experienced or 
fears harm that would be an independent basis for protection prior to 
referring the family to the IJ for a hearing. See 8 CFR 208.9(b), (i). 
If a spouse or child who was included in the principal's request for 
asylum does not separately file an asylum application that is 
adjudicated by USCIS, the principal's asylum application will be deemed 
by EOIR to satisfy EOIR's application filing requirements for the 
spouse or child as principal applicants. See 8 CFR 1208.3(a)(2).
4. Streamlined Section 240 Removal Proceedings Before the Immigration 
Judge
    DOJ is adding 8 CFR 1240.17, which shall govern section 240 removal 
proceedings for respondents whose cases originate from the credible 
fear process and who have not been granted asylum after an initial 
adjudication by an asylum officer, pursuant to 8 CFR 208.14(c)(1). The 
general rules and procedures that govern all other removal proceedings 
under section 240 apply to removal proceedings covered by this

[[Page 18087]]

rule with certain exceptions designed to streamline the proceedings and 
account for the unique procedural posture of these cases.
    Under new 8 CFR 1240.17(b), USCIS will issue an NTA to any 
noncitizen not granted asylum by USCIS after an Asylum Merits interview 
held pursuant to 8 CFR 208.2(a), with the master calendar hearing in 
these streamlined section 240 proceedings scheduled for 30 to 35 days 
after service of the NTA. Under new 8 CFR 1240.17(e), the record of the 
proceedings for the interview before the asylum officer and the asylum 
officer's decision shall be admitted as evidence and considered by the 
IJ. Moreover, this rule provides that a respondent is not required to 
separately prepare and file a Form I-589, Application for Asylum and 
for Withholding of Removal, and that the record of the positive 
credible fear determination satisfies the application filing 
requirements for the principal applicant as well as for any dependent 
included in the referral and who did not separately file an asylum 
application that was adjudicated by USCIS. See 8 CFR 208.3(a), 
1208.3(a), 1240.17(e). That is, any spouse or child included in the 
referral will be deemed to have satisfied EOIR's application filing 
requirements as a principal applicant.
    The Departments have determined that it is appropriate for cases 
under this rule to proceed on a streamlined time frame before the IJ as 
claims will have been significantly developed and analyzed by USCIS 
before the IJ proceedings start, the record will be available for 
review by the IJ, and respondents will not be required to prepare and 
file an asylum application. Accordingly, the rule establishes timelines 
for certain hearings to occur as provided in new 8 CFR 1240.17(f)(1)-
(4). As set forth in new 8 CFR 1240.17(h), the rule imposes limitations 
on the length of continuances and filing extensions that can be granted 
before a respondent must satisfy a heightened standard to receive 
additional continuances or filing extensions that have the effect of 
further delaying a hearing required under the rule. The rule also 
imposes certain procedural requirements and gives IJs additional tools 
designed to narrow the issues and ready the case for a merits hearing, 
if necessary. Under new 8 CFR 1240.17(f)(1) and (2), the rule requires 
the IJ to hold a status conference 30 days after the master calendar 
hearing or, if a status conference cannot be held on that date, on the 
next available date no later than 35 days after the master calendar 
hearing, and imposes obligations on both parties to participate at the 
conference, although the level of participation required by the 
respondent depends on whether the respondent has legal representation. 
If DHS indicates that it will participate in the case, DHS has an 
obligation under new 8 CFR 1240.17(f)(2)(ii) and (f)(3) to set forth 
its position on the respondent's application and identify contested 
issues of law or fact (including which elements, if any, of the 
respondent's claim(s) it is challenging), among other things. In 
certain circumstances, where DHS does not respond in a timely manner to 
the respondent's claims, the IJ has authority to deem those claims 
unopposed, as provided in new 8 CFR 1240.17(f)(3)(i). However, DHS may 
respond at the merits hearing to any arguments or claimed bases for 
asylum first advanced by the respondent after the status conference. 
See 8 CFR 1240.17(f)(3)(i). Where DHS has indicated that it will not 
participate in a merits hearing, the rule allows DHS, in certain, 
limited instances, to retract this position prior to the merits 
hearing, as provided in new 8 CFR 1240.17(f)(2)(ii). The rule allows 
IJs to hold additional status conferences if the case is not ready for 
a merits hearing, as provided in new 8 CFR 1240.17(f)(2).
    Under new 8 CFR 1240.17(f)(4), the IJ may forgo a merits hearing 
and decide the respondent's application on the documentary record (1) 
if neither party has requested to present testimony and DHS has 
indicated that it waives cross-examination, or (2) if the noncitizen 
has timely requested to present testimony, DHS has indicated that it 
waives cross-examination and does not intend to present testimony or 
produce evidence, and the IJ concludes that the application can be 
granted without further testimony. The rule preserves the IJ's ability 
to hold a merits hearing if the IJ decides that it is necessary to 
fulfill the IJ's duty to fully develop the record.
    If the case cannot be decided on the documentary record, the new 8 
CFR 1240.17(f)(2) requires the IJ to hold a merits hearing 60 days 
after the master calendar hearing or, if a hearing cannot be held on 
that date, on the next available date no later than 65 days after the 
master calendar hearing. At the merits hearing, the respondent may 
testify fully and offer any additional evidence that has been submitted 
in compliance with the time limits on evidentiary filings under the 
normal evidentiary standards that apply to 240 removal proceedings as 
provided in new 8 CFR 1240.17(f)(4)(iii)(A) and (g)(1). If the 
proceedings cannot be completed at the scheduled merits hearing, the IJ 
shall schedule any continued merits hearing as soon as possible but no 
later than 30 days after the initial merits hearing except in case of a 
continuance or extension as provided in 8 CFR 1240.17(f)(4)(iii)(B). 
Under new 8 CFR 1240.17(f)(5), the IJ is required, wherever 
practicable, to issue an oral decision on the date of the final merits 
hearing or, if the IJ concludes that no hearing is necessary, no later 
than 30 days after the status conference. Where issuance of an oral 
decision on such date is not practicable, the IJ must issue an oral or 
written decision as soon as practicable, and in no case more than 45 
days after the applicable date described in the preceding sentence. See 
8 CFR 1240.17(f)(5).
    Under new 8 CFR 1240.17(i)(2), if the IJ denies asylum but an 
asylum officer has determined that the respondent is eligible for 
statutory withholding of removal or protection under the CAT with 
respect to the proposed country of removal, then the IJ shall enter an 
order of removal but give effect to the asylum officer's eligibility 
determination by granting the applicable form of protection, unless DHS 
demonstrates that evidence or testimony that specifically pertains to 
the respondent and that was not in the record of proceedings for the 
USCIS Asylum Merits interview establishes that the respondent is not 
eligible for such protection. Under new 8 CFR 1240.17(f)(2)(i)(B), the 
rule similarly provides that where an asylum officer has declined to 
grant asylum but has determined that the respondent is eligible for 
statutory withholding of removal or protection under the CAT with 
respect to the proposed country of removal, the respondent may elect 
not to contest removal and not pursue a claim for asylum before the IJ 
but still receive statutory withholding of removal or CAT protection. 
In such a case, the rule provides that the IJ shall enter an order of 
removal but give effect to the asylum officer's eligibility 
determination by granting the applicable form of protection, unless DHS 
makes a prima facie showing through evidence that specifically pertains 
to the respondent and that was not in the record of proceedings for the 
USCIS Asylum Merits interview that the respondent is not eligible for 
such protection. Similarly, new 8 CFR 1240.17(d) further provides that 
an IJ must give effect to an asylum officer's determination that a 
noncitizen is eligible for statutory withholding of removal or 
protection under the CAT, even if the noncitizen is ordered removed in 
absentia, unless DHS makes a prima facie showing through evidence that 
specifically pertains to the

[[Page 18088]]

respondent and that was not in the record of proceedings for the USCIS 
Asylum Merits interview that the respondent is not eligible for such 
protection. In addition, new 8 CFR 1240.17(l) makes clear that DHS may, 
in keeping with existing regulations, seek to terminate such 
protection.\7\
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    \7\ Nothing in this rule alters the existing regulatory 
provisions governing termination of withholding or deferral; these 
provisions apply to any noncitizen whose removal has been withheld 
or deferred, whether through the procedure established in this rule 
or otherwise. See 8 CFR 208.17(d), 208.24(f), 1208.17(d), 
1208.24(f).
---------------------------------------------------------------------------

    Finally, the rule specifically exempts certain cases that cannot be 
expedited under the circumstances from the timelines and other 
expedited aspects of the streamlined 240 proceedings. See 8 CFR 
1240.17(k). Such exceptions include the following circumstances: The 
respondent was under the age of 18 on the date that the NTA was issued 
and is not in consolidated removal proceedings with an adult family 
member, 8 CFR 1240.17(k)(1); the respondent has produced evidence of 
prima facie eligibility for relief or protection other than asylum, 
statutory withholding of removal, protection under the CAT, and 
voluntary departure, and the respondent is seeking to apply for, or has 
applied for, such relief or protection, 8 CFR 1240.17(k)(2); \8\ the 
respondent has produced evidence that supports a prima facie showing 
that the respondent is not removable and the IJ determines that the 
issue of whether the respondent is removable cannot be resolved 
simultaneously with the adjudication of the applications for asylum and 
related protection, 8 CFR 1240.17(k)(3); the IJ finds the respondent 
subject to removal to a country other than the country or countries in 
which the respondent claimed a fear of persecution, torture, or both 
before the asylum officer and the respondent claims a fear of 
persecution, torture, or both in that alternative country or countries, 
8 CFR 1240.17(k)(4); the case is on remand or has been reopened 
following the IJ's order, 8 CFR 1240.17(k)(5); or the respondent 
exhibits indicia of mental incompetency, 8 CFR 1240.17(k)(6). The 
provisions at 8 CFR 1240.17(f), (g), and (h), which pertain to the 
schedule of proceedings, to the consideration of evidence and 
testimony, and to continuances, adjournments, and filing extensions, 
will not apply in such cases. The other provisions in 8 CFR 1240.17, 
however, will apply.
---------------------------------------------------------------------------

    \8\ The rule does not specify the particular type of evidence 
that must be produced in order to demonstrate prima facie 
eligibility for relief. Such evidence could include testimonial 
evidence as well as documentary evidence. The rule further does not 
require that a completed application for the relief at issue be 
filed with the immigration court.
---------------------------------------------------------------------------

5. Parole
    DHS is amending 8 CFR 235.3(b)(2)(iii) to permit parole of detained 
individuals whose inadmissibility is being considered in the expedited 
removal process, or who have been ordered removed under the expedited 
removal process, only on a case-by-case basis for urgent humanitarian 
reasons or significant public benefit, which includes, as interpreted 
in longstanding regulations, see 8 CFR 212.5(b), circumstances in which 
continued detention is not in the public interest, provided that the 
noncitizen presents neither a security risk nor a risk of absconding. 
Similarly, DHS is amending 8 CFR 235.3(b)(4)(ii) to permit parole of 
detained individuals pending a credible fear interview and any review 
of an asylum officer's credible fear determination by an IJ only on a 
case-by-case basis for urgent humanitarian reasons or significant 
public benefit, including if continued detention is not in the public 
interest, provided that the noncitizen presents neither a security risk 
nor a risk of absconding. This rule further finalizes, as proposed, 
that such a grant of parole would be for the limited purpose of parole 
out of custody and cannot serve as an independent basis for employment 
authorization under 8 CFR 274a.12(c)(11). See 8 CFR 235.3(b)(2)(iii), 
(b)(4)(ii). The IFR also includes a technical amendment to 8 CFR 
212.5(b) to incorporate a reference to 8 CFR 235.3(b). Parole is not 
guaranteed but instead considered on a case-by-case basis to determine 
whether it is warranted as a matter of discretion; DHS also may impose 
reasonable conditions on parole such as periodic reporting to U.S. 
Immigration and Customs Enforcement (``ICE''). See INA 212(d)(5)(A), 8 
U.S.C. 1182(d)(5)(A); 8 CFR 212.5(d).\9\
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    \9\ Noncitizens who are paroled are not considered to be 
``admitted'' to the United States. See INA 101(a)(13)(B), 
212(d)(5)(A); 8 U.S.C. 1101(a)(13)(B), 1182(d)(5)(A).
---------------------------------------------------------------------------

    Additionally, DHS is including in this rule a technical amendment 
to 8 CFR 235.3(c)(2) to provide that parole of noncitizens with 
positive credible fear determinations whose asylum applications are 
retained by USCIS for further consideration through the Asylum Merits 
process is permissible only on a case-by-case basis for urgent 
humanitarian reasons or significant public benefit, including if 
continued detention is not in the public interest, provided that the 
noncitizen presents neither a security risk nor a risk of absconding. 
This technical amendment is necessary to clarify that the parole 
authority pertaining to noncitizens awaiting an Asylum Merits interview 
with USCIS under this rule will be consistent with 8 CFR 212.5, just as 
the parole authority pertaining to detained noncitizens subject to 
expedited removal who are placed in section 240 removal proceedings is 
consistent with 8 CFR 212.5. As noted above, parole is not guaranteed 
but instead considered on a case-by-case basis to determine whether it 
is warranted as a matter of discretion.

E. Summary of Costs and Benefits

    The primary individuals and entities that this rule is expected to 
affect are: (1) Noncitizens who are placed into expedited removal and 
who receive a credible fear screening; (2) the support networks of 
asylum applicants who receive a positive credible fear determination; 
(3) USCIS; and (4) EOIR. The expected impacts to these individuals and 
entities and to others are detailed in Section V.B of this preamble. In 
brief, by reducing undue delays in the asylum adjudication system, and 
by providing a variety of procedural safeguards, the rule protects 
equity, human dignity, and fairness given that individuals who are 
eligible for asylum or other protection may receive that protection 
more promptly, while individuals who are ineligible may more promptly 
be ordered removed. In the Departments' judgment, these benefits--which 
are difficult or impossible to quantify--along with the benefits of the 
rule that are more amenable to quantification, amply justify the 
aggregate costs of the rule.
    The rule's impact on affected noncitizens (and, in turn, on their 
support networks) may vary substantially from person to person 
depending on, among other things, whether the individual receives a 
positive credible fear determination and whether the individual's 
asylum claim is granted or not granted by USCIS. For example, some 
individuals may benefit more from an earlier grant of asylum because 
they may be able to enter the labor force sooner. And individuals who 
establish credible fear may benefit from cost savings associated with 
no longer having to file a Form I-589, Application for Asylum and for 
Withholding of Removal.
    The Departments have estimated the human resource- and information-
related expenditures required for USCIS to implement this rule. These 
estimates are developed along three population

[[Page 18089]]

bounds to account for possible variations in the number of credible 
fear screenings in future years. Implementation of the rule also is 
expected to reduce EOIR's workload, allowing EOIR to focus efforts on 
other priority work and to reduce the growth of its substantial current 
backlog. That expected reduction in workload would result from (1) 
cases in which USCIS grants asylum never reaching EOIR, resulting in a 
potential 15 percent reduction in EOIR's caseload originating from 
credible fear screening (assuming historic grant rates), and (2) many 
of the cases reaching EOIR being resolved with less investment of 
immigration court time and resources than they would have required if 
referred directly to EOIR in the first instance.
    An important caveat to the Departments' estimates of the potential 
costs and benefits associated with this rule is that it will take time 
to fully implement the rule, as the Departments intend to take a phased 
approach to implementing the rule.

F. Effective Date

    This IFR will be effective 60 days from the date of publication in 
the Federal Register.
    This rule applies prospectively and only to adults and families who 
are placed in expedited removal proceedings and indicate an intention 
to apply for asylum, a fear of persecution or torture, or a fear of 
return to their home country, after the rule's effective date. The rule 
does not apply to unaccompanied children, as they are statutorily 
exempt from expedited removal proceedings. See 8 U.S.C. 
1232(a)(5)(D)(i) (providing that ``any unaccompanied alien child'' whom 
DHS seeks to remove ``shall be . . . placed in removal proceedings 
under section 240'' of the INA); see also 6 U.S.C. 279(g)(2) (defining 
``unaccompanied alien child'').\10\ The rule also does not apply to 
individuals in the United States who are not apprehended at or near the 
border and subject to expedited removal.\11\ Such individuals will 
continue to have their asylum claims heard in section 240 removal 
proceedings in the first instance, or through an affirmative asylum 
application under section 208 of the INA, 8 U.S.C. 1158, if they have 
not yet been placed in immigration proceedings. The rule also does not 
apply to (1) stowaways or (2) noncitizens who are physically present in 
or arriving in the CNMI who are determined to have a credible fear. 
Such individuals will continue to be referred to asylum-and-
withholding-only proceedings before an IJ under 8 CFR 208.2(c).
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    \10\ In lieu of being placed in section 240 removal proceedings, 
unaccompanied children from contiguous countries who meet special 
criteria may be permitted to withdraw their applications for 
admission and be voluntarily returned to their country of 
nationality or country of last habitual residence. See 8 U.S.C. 
1232(a)(2).
    \11\ The former Immigration and Naturalization Service (``INS'') 
initially implemented expedited removal processes only for certain 
noncitizens arriving at ports of entry. In 2002, DHS, by 
designation, expanded the application of expedited removal to 
certain noncitizens who (1) entered the United States by sea, either 
by boat or other means, (2) were not admitted or paroled into the 
United States, and (3) had not been continuously present in the 
United States for at least 2 years. Notice Designating Aliens 
Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the 
Immigration and Nationality Act, 67 FR 68924 (Nov. 13, 2002). In 
2004, DHS published an immediately effective notice in the Federal 
Register to expand the application of expedited removal to certain 
noncitizens encountered within 100 miles of the border and to 
noncitizens who entered the United States without inspection fewer 
than 14 days before they were encountered. Designating Aliens for 
Expedited Removal, 69 FR 48877 (Aug. 11, 2004). In 2019, DHS 
expanded the process to the full extent authorized by statute to 
reach certain noncitizens, not covered by prior designations, who 
entered the country without inspection less than two years before 
being apprehended and who were encountered anywhere in the United 
States. Designating Aliens for Expedited Removal, 84 FR 35409 (July 
23, 2019). President Biden has directed DHS to consider whether to 
modify, revoke, or rescind that 2019 expansion. Executive Order 
14010, Creating a Comprehensive Regional Framework To Address the 
Causes of Migration, To Manage Migration Throughout North and 
Central America, and To Provide Safe and Orderly Processing of 
Asylum Seekers at the United States Border, 86 FR 8267, 8270-71 
(Feb. 2, 2021). On March 21, 2022, DHS published a Federal Register 
Notice rescinding the 2019 designation. See Rescission of the Notice 
of July 23, 2019, Designating Aliens for Expedited Removal, 87 FR 
16022 (Mar. 21, 2022).
---------------------------------------------------------------------------

III. Discussion of the IFR

    The principal purpose of this IFR is to simultaneously increase the 
promptness, efficiency, and fairness of the process by which 
noncitizens who cross the border without appropriate documentation are 
either removed or, if eligible, granted protection. The IFR 
accomplishes this purpose both by instituting a new process for 
resolving the cases of noncitizens who have been found to have a 
credible fear of persecution or torture and by facilitating the use of 
expedited removal for more of those who are eligible, and especially 
for populations whose detention presents particular challenges. When 
individuals placed into the expedited removal process make a fear 
claim, they are referred to a USCIS asylum officer, who interviews them 
to determine whether they have a credible fear of persecution or 
torture. See INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii); 8 CFR 
208.30. Under procedures in place immediately prior to the effective 
date of this IFR, individuals who receive a positive credible fear 
determination are referred to an immigration court for section 240 
removal proceedings, during which they have the opportunity to apply 
for asylum and other forms of relief or protection from removal. See 8 
CFR 208.30(f) (2018) (providing that if a noncitizen, other than a 
stowaway, ``is found to have a credible fear of persecution or torture, 
the asylum officer will so inform the [noncitizen] and issue an NTA, 
for full consideration of the asylum and withholding of removal claim 
in proceedings under section 240 of the Act''). As explained in the 
NPRM, it may take years before the individual's protection claim is 
first adjudicated by an IJ. This delay creates additional stress and 
uncertainty for those ultimately determined to merit asylum and other 
forms of humanitarian protection, as they are left in limbo as to 
whether they might still be removed, are unable to lawfully work until 
their asylum application has been granted or has remained pending for 
several months, and are unable to petition for qualified family 
members, some of whom may still be at risk of harm. Moreover, the 
ability to stay in the United States for years waiting for an initial 
decision may motivate unauthorized border crossings by individuals who 
otherwise would not have sought to enter the United States and who lack 
a meritorious protection claim. Such additional entrants only further 
increase the backlog and lengthen the delays.
    To respond to this problem, this rule at 8 CFR 208.2(a)(1)(ii) and 
208.9 provides USCIS the authority to adjudicate in the first instance 
the asylum claims of individuals who receive a positive credible fear 
determination, and further provides that USCIS does so following a 
nonadversarial interview by an asylum officer. The rule also provides 
at 8 CFR 208.3(a)(2) that the record of a credible fear interview will 
serve as an asylum application for noncitizens whose cases are retained 
by or referred back to USCIS for adjudication after a positive credible 
fear determination, thereby allowing cases originating with a credible 
fear screening to be adjudicated substantially sooner. Both the 
Departments and the noncitizen can avoid the burden caused by delays 
associated with otherwise requiring the noncitizen to file a Form I-
589, Application for Asylum and for Withholding of Removal. See Section 
IV.D.4.a of this preamble. By

[[Page 18090]]

authorizing USCIS to adjudicate in the first instance the asylum claims 
of individuals who receive a positive credible fear determination and 
by making it possible for this adjudication to be made promptly and 
independently of EOIR, the Departments predict that the rule will also 
help to stem the rapid growth of the EOIR caseload, described in 
greater detail in the NPRM. See 86 FR 46937. As for the noncitizen, 
this change reduces potential barriers to protection for eligible 
applicants by enabling asylum seekers to meet the statutory requirement 
to apply for asylum within one year of arrival, avoiding the risk of 
filing delays, and immediately beginning the waiting period of work 
authorization eligibility. See id. at 46916. Any spouse or child who 
arrived with the principal asylum applicant and is included as a 
dependent on the principal applicant's positive credible fear 
determination may make a separate claim for protection and submit their 
own principal asylum application to USCIS for consideration.
    As noted in the NPRM, the current system for processing protection 
claims made by individuals encountered at or near the border and who 
establish credible fear was originally adopted in 1997. From 2018 
through 2020, however, several attempts were made to change the 
credible fear screening process. Many of these attempts have been 
initially vacated or enjoined, and the implementation of others has 
been delayed pending consideration of whether they should be revised or 
rescinded.\12\ The Global Asylum rule, which is enjoined, revised 
regulations to provide that noncitizens with positive credible fear 
determinations would be placed in asylum-and-withholding-only 
proceedings before an IJ. See 85 FR 80276. In the Global Asylum rule, 
the Departments explained their view that placing such noncitizens in 
asylum-and-withholding-only proceedings before an IJ would ``bring the 
proceedings in line with the statutory objective that the expedited 
removal process be streamlined and efficient,'' id., and later noted 
that it would ``lessen the strain on the immigration courts by limiting 
the focus of such proceedings and thereby streamlining the process,'' 
id. at 80286. The Departments provided that these asylum-and-
withholding-only proceedings would follow the same rules of procedure 
that apply in section 240 proceedings and that a noncitizen could 
appeal their case to the BIA and Federal circuit courts, as necessary. 
See id. at 80289. The Departments acknowledged that IJs often 
adjudicate multiple forms of relief in a single removal proceeding, in 
addition to asylum, statutory withholding of removal, or CAT protection 
claims, and stated that those additional issues ``generally only serve 
to increase the length of the proceedings'' and that ``there may be 
rare scenarios in which [noncitizens] subject to expedited removal are 
eligible for a form of relief other than asylum.'' Id. In the Global 
Asylum rule, the Departments concluded that placing noncitizens with 
positive credible fear determinations into more limited asylum-and-
withholding-only proceedings properly balanced the need to prevent 
noncitizens from being removed to countries where they may face 
persecution or torture with ensuring efficiency in the overall 
adjudication process. See id.
---------------------------------------------------------------------------

    \12\ See supra note 4 (discussing recent regulations and their 
current status).
---------------------------------------------------------------------------

    This rule offers another approach. It establishes a streamlined and 
simplified adjudication process for individuals encountered at or near 
the border, placed into expedited removal, and determined to have a 
credible fear of persecution or torture, with the aim of deciding 
protection claims in a more timely fashion while ensuring appropriate 
safeguards against error.\13\ The rule authorizes USCIS to adjudicate 
in the first instance the asylum claims of individuals who receive 
positive credible fear determinations under the expedited removal 
framework in section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1). The 
procedures that USCIS asylum officers will use to adjudicate these 
claims will be nonadversarial, and the decisions will be made within 
time frames consistent with those established by Congress in section 
208(d)(5)(A) of the INA, 8 U.S.C. 1158(d)(5)(A).\14\
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    \13\ Section 4(b)(i) of Executive Order 14010, Creating a 
Comprehensive Regional Framework to Address the Causes of Migration, 
To Manage Migration Throughout North and Central America, and To 
Provide Safe and Orderly Processing of Asylum Seekers at the United 
States Border, instructed the Secretary to review the procedures for 
individuals placed into expedited removal at or near the border and 
issue a report with recommendations ``for creating a more efficient 
and orderly process that facilitates timely adjudications [of asylum 
and protection claims] and adherence to standards of fairness and 
due process.'' 86 FR 8267, 8270 (Feb. 2, 2021).
    \14\ See INA 208(d)(5)(A)(ii)-(iii), 8 U.S.C. 1158(d)(5)(A)(ii)-
(iii) (specifying that an initial interview or hearing on an asylum 
application should generally commence within 45 days after the 
filing of the application and that final administrative adjudication 
should generally be completed within 180 days after the filing of 
the application).
---------------------------------------------------------------------------

    The Departments believe that the approach in this rule, in contrast 
to the approach outlined in the Global Asylum rule, will allow for 
noncitizens' claims to be heard more efficiently and fairly. As further 
explained in this rule, allowing noncitizens with positive credible 
fear determinations to have their asylum, statutory withholding, and 
CAT protection claims heard in a nonadversarial setting before an 
asylum officer capitalizes on the investment of time and expertise that 
USCIS has already made and, for the subset of cases in which asylum is 
granted by USCIS, saves investment of time and resources by EOIR and 
ICE. See Sections II.C. and IV.D.5 of this preamble. The extensive and 
well-rounded training that asylum officers receive is designed to 
enable them to conduct nonadversarial interviews in a fair and 
sensitive manner. This rule will also enable meritorious cases to be 
resolved more quickly, reducing the overall asylum system backlogs and 
using limited asylum officer and IJ resources more efficiently. If the 
asylum officer does not grant asylum following an Asylum Merits 
interview, the noncitizen will be referred to an IJ for streamlined 
section 240 removal proceedings, with a structure that provides for the 
prompt resolution of their claims and that allows the noncitizen to 
seek other forms of relief. If the asylum application includes a 
dependent who has not filed a separate application and the principal 
applicant is determined not to be eligible for asylum, the asylum 
officer will elicit sufficient information to determine whether there 
is a significant possibility that the applicant's dependent has 
experienced or fears harm that would be an independent basis for 
protection prior to referring the family to the IJ for a hearing. This 
will allow EOIR to consider all family members to have separately filed 
an asylum application once the family is placed into the streamlined 
section 240 removal proceedings.
    This IFR will help more effectively achieve many of the goals 
outlined in the Global Asylum rule--including improving efficiency, 
streamlining the adjudication of asylum, statutory withholding of 
removal, and CAT protection claims, and lessening the strain on the 
immigration courts--albeit with a different approach. This rule helps 
meet the goal of lessening the strain on the immigration courts by 
having USCIS asylum officers adjudicate asylum claims in the first 
instance, rather than IJs. As explained further in this rule, the 
Departments anticipate that the number of cases USCIS refers to EOIR 
for adjudication will decrease. See Sections IV.F.1.a and V.B.4.b.ii of 
this preamble. In contrast to the Global Asylum rule, in this rule, the

[[Page 18091]]

Departments are amending regulations to include several time frames for 
the adjudication process and particular procedural requirements 
designed to streamline the overall process and take advantage of the 
record created by the asylum officer, while still providing noncitizens 
with a full and fair opportunity to present testimony and evidence in 
support of their claims before an IJ. See Sections II.A.4 and III.D of 
this preamble. Accordingly, these changes better meet the Departments' 
goals of improving efficiency and streamlining the process. In 
addition, upon reconsideration, the Departments recognize that giving 
noncitizens the opportunity to seek other forms of relief within the 
context of streamlined section 240 removal proceedings helps reduce 
barriers to accessing other immigration benefits that may be available, 
and that the potential benefits to noncitizens of having such an 
opportunity outweigh efficiency concerns.
    The Departments clarify that nothing in this rule is intended to 
displace DHS's (and, in particular, USCIS's) prosecutorial discretion 
to place a covered noncitizen in, or to withdraw a covered noncitizen 
from, expedited removal proceedings and issue an NTA to place the 
noncitizen in ordinary section 240 removal proceedings at any time 
after they are referred to USCIS for a credible fear determination. See 
8 CFR 208.30(b), (f); Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 171 
(BIA 2017); Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011). 
Moreover, should any provision of the rule governing the USCIS process 
for cases covered by 8 CFR 208.2(a)(1)(ii) be enjoined or vacated, EOIR 
has the discretion to place into ordinary section 240 proceedings any 
case referred to EOIR under this section.

A. Credible Fear Screening Process

    The credible fear screening regulations under this rulemaking 
generally recodify the current screening process, returning the 
regulatory language, in large part, to what was in place prior to the 
various regulatory changes made from the end of 2018 through the end of 
2020. Noncitizens encountered at or near the border or ports of entry 
and determined to be inadmissible pursuant to INA 212(a)(6)(C) or 
(a)(7), 8 U.S.C. 1182(a)(6)(C) or (a)(7), can be placed in expedited 
removal and provided a credible fear screening if they indicate an 
intention to apply for asylum, a fear of persecution or torture, or a 
fear of return to their home countries. See INA 235(b)(1)(A)(ii), (B), 
8 U.S.C. 1225(b)(1)(A)(ii), (B); 8 CFR 235.3(b)(4), 1235.3(b)(4). 
Individuals claiming a fear or an intention to apply for protection are 
referred to USCIS asylum officers for an interview and consideration of 
their fear claims under the ``significant possibility'' standard, which 
presently applies to all relevant protection claims because the 
regulatory changes referenced above have been vacated or enjoined.\15\
---------------------------------------------------------------------------

    \15\ See supra note 4 (discussing recent regulations and their 
current status).
---------------------------------------------------------------------------

    The Departments are returning to codifying the historical practice 
of applying the ``significant possibility'' standard across all forms 
of protection screened in the credible fear process. This rule adopts 
the ``significant possibility'' standard for credible fear screening 
for purposes of asylum, statutory withholding of removal, and CAT 
protection. While the statutory text at INA 235(b)(1)(B)(v), 8 U.S.C. 
1225(b)(1)(B)(v), only defines ``credible fear'' for purposes of 
screening asylum claims, the Departments believe that the efficiency 
gained in screening the same or a closely related set of facts using 
the same legal standard at the same time is substantial and should not 
be overlooked. Moreover, the credible fear screening process is 
preliminary in nature; its objective is to sort out, without undue 
decision costs, which cases merit further consideration. See generally 
INA 235(b)(1)(B); 8 U.S.C. 1225(b)(1)(B). Efficiently using one 
standard of law at the preliminary step is consistent with that 
objective, even though the ultimate adjudication of a noncitizen's 
claim for each form of protection may require a distinct analysis.
    The standard for establishing a credible fear of persecution under 
the INA requires ``a significant possibility, taking into account the 
credibility of the statements made by the [noncitizen] in support of 
the [noncitizen's] claim and such other facts as are known to the 
officer, that the [noncitizen] could establish eligibility for asylum 
under section 208'' of the INA. INA 235(b)(1)(B)(v), 8 U.S.C. 
1225(b)(1)(B)(v). While the ``significant possibility'' standard for 
the purpose of screening for asylum is established by statute, the 
statute does not specify a standard to be used in screening for 
statutory withholding of removal or CAT protection. In June 2020, the 
Departments proposed alternative standards for statutory withholding of 
removal and CAT protection. See Procedures for Asylum and Withholding 
of Removal; Credible Fear and Reasonable Fear Review, 85 FR 36264, 
36268 (June 15, 2020) (``Global Asylum NPRM''). Under that proposed 
rule, ``asylum officers would consider whether [noncitizens] could 
establish a credible fear of persecution, a reasonable possibility of 
persecution, or a reasonable possibility of torture.'' Id. at 36269. In 
finalizing that rule, the Departments noted that in changing the 
standard of law for withholding of removal and deferral of removal, an 
individual's ``screening burdens would become adequately analogous to 
the merits burdens, where the [individual's] burdens for statutory 
withholding of removal and protections under the CAT regulations are 
higher than the burden for asylum.'' Global Asylum rule, 85 FR 80277. 
However, pursuant to an Executive order and with the additional context 
of the court's injunction against the implementation of the Global 
Asylum rule in Pangea II,\16\ the Departments have reviewed and 
reconsidered that rule. See Executive Order 14012, Restoring Faith in 
Our Legal Immigration Systems and Strengthening Integration and 
Inclusion Efforts for New Americans, 86 FR 8277 (Feb. 2, 2021) (``E.O. 
on Legal Immigration'') (ordering review of existing regulations for 
consistency with the E.O. on Legal Immigration). In line with this 
review, the Departments have revisited the approach of having divergent 
standards applied during the credible fear screening and determined 
that keeping one standard in screening for asylum, statutory 
withholding, and CAT protection better promotes an efficient credible 
fear screening process.
---------------------------------------------------------------------------

    \16\ See supra note 4 (discussing recent regulations and their 
current status).
---------------------------------------------------------------------------

    In multiple rulemaking efforts, the Departments promulgated 
divergent standards for asylum and withholding of removal, along with 
variable standards for individuals barred from certain types of 
protection.\17\ However, in working to create efficiencies within this 
process, as well as recognizing that the Departments have signaled 
their intention to either modify or rescind these rules,\18\ adhering 
to the legal standard that was set by Congress in section 
235(b)(1)(B)(v) of the Act, 8 U.S.C. 1225(b)(1)(B)(v), is the logical

[[Page 18092]]

choice. See 86 FR 46914. Upon reconsideration, the Departments believe 
that the varied legal standards created by different rulemakings, and 
enjoined or vacated by legal challenges, defeat their intended purpose, 
and complicate and extend the initial screening process provided for in 
INA section 235. Having asylum officers apply varied legal standards 
would generally lead to the need to elicit additional testimony from 
noncitizens at the time of the credible fear screening interview, which 
lengthens credible fear interviews and increases adjudication times. In 
the Departments' view, the delays associated with complicating and 
extending every credible fear interview likely outweigh any 
efficiencies gained by potential earlier detection of individuals who 
may be barred from or ineligible for certain types of protection. For 
example, when the TCT Bar IFR was in effect,\19\ asylum officers were 
required to spend additional time during any interview where the bar 
potentially applied developing the record related to whether the bar 
applied, whether an exception to the bar might have applied, and, if 
the noncitizen appeared to be barred and did not qualify for an 
exception to the bar, developing the record sufficiently such that a 
determination could be made according to the higher reasonable fear 
standard. This additional time spent developing the record when the 
higher reasonable fear standard applied decreased the efficiency of the 
screening interviews themselves and complicated the analysis asylum 
officers were required to perform, thus contributing to the overall 
lengthening of the entire process.
---------------------------------------------------------------------------

    \17\ See supra note 4 (describing the TCT Bar IFR, Presidential 
Proclamation Bar IFR, and Security Bars rule).
    \18\ See Executive Office of the President, Office of Management 
and Budget (``OMB''), Office of Information and Regulatory Affairs 
(``OIRA''), Spring 2021 Unified Agenda of Regulatory and 
Deregulatory Actions, https://www.reginfo.gov/public/do/eAgendaHistory (last visited Mar. 5, 2022) (select DHS or DOJ); 
Executive Office of the President, OMB, OIRA, Fall 2021 Unified 
Agenda of Regulatory and Deregulatory Actions, https://www.reginfo.gov/public/do/eAgendaMain (last visited Mar. 5, 2022) 
(select DHS or DOJ).
    \19\ The TCT Bar IFR went into effect on July 16, 2019, see 84 
FR 33829, and was vacated on June 30, 2020, see Capital Area 
Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d at 45-57. The TCT 
Bar rule went into effect on January 19, 2021. See 85 FR 82260. 
However, it did not have an impact on credible fear processing. The 
TCT Bar rule did not directly make any amendments to the credible 
fear regulations at 8 CFR 208.30 and instead relied on changes to 
the credible fear regulations made by the Global Asylum rule in 
order to apply the TCT bar in credible fear. On January 8, 2021, the 
Global Asylum rule was preliminarily enjoined. See Pangea II, 512 F. 
Supp. 3d 966. As a result of the preliminary injunction in Pangea 
II, the amendments to 8 CFR 208.30 made by the Global Asylum rule 
were enjoined. Thus, the bar to asylum eligibility at 8 CFR 
208.13(c)(4) established in the TCT Bar rule did not apply in 
credible fear while the Global Asylum rule remained enjoined. The 
TCT Bar rule itself was enjoined on February 16, 2021. See E. Bay 
Sanctuary Covenant, 519 F. Supp. 3d at 668. Therefore, only the TCT 
Bar IFR ever went into effect.
---------------------------------------------------------------------------

    In the Global Asylum NPRM, the Departments stated that ``[r]aising 
the standards of proof to a `reasonable possibility' for the screening 
of [noncitizens] seeking statutory withholding of removal and CAT 
protection would allow the Departments to better screen out non-
meritorious claims and focus limited resources on claims much more 
likely to be determined to be meritorious by an immigration judge.'' 85 
FR 36271. However, based on the Departments' experience implementing 
divergent screening standards for asylum, statutory withholding of 
removal, and CAT protection while the TCT Bar IFR was in effect, no 
evidence has been identified that this approach resulted in more 
successful screening out of non-meritorious claims while ensuring the 
United States complied with its non-refoulement obligations.
    The Departments also reasoned in the Global Asylum NPRM: ``Adopting 
a higher standard for statutory withholding and CAT screenings would 
not hinder the streamlined process envisioned for expedited removal. 
Asylum officers already receive extensive training and guidance on 
applying the `reasonable possibility' standard in other contexts 
because they are determining whether a reasonable possibility of 
persecution or torture exists in reasonable fear determinations 
pursuant to 8 CFR 208.31. In some cases, asylum officers would need to 
spend additional time eliciting more detailed testimony from 
[noncitizens] to account for the higher standard of proof; however, the 
overall impact on the time asylum officers spend making screening 
determinations would be minimal.'' 85 FR 36271. However, the 
Departments have reconsidered these predictions, again based on the 
experience implementing divergent screening standards while the TCT Bar 
IFR was in effect. Beyond the additional time asylum officers 
themselves spent conducting these screening interviews, making 
determinations, and recording their assessments, supervisory asylum 
officers reviewing these cases spent additional time assessing whether 
the varying standards of proof were properly applied to the forms of 
relief for which asylum officers screened. This effort also required 
the additional investment of time and resources from Asylum Division 
headquarters, including training and quality assurance staff who had to 
develop and deliver guidance and trainings on the new process, monitor 
the work being conducted in the field to ensure compliance with 
regulations and administrative processes, and provide guidance to 
asylum officers and supervisory asylum officers on individual cases. 
Attorneys from the USCIS Office of Chief Counsel had to spend time and 
resources reviewing and advising on training materials and guidance 
issued by the Asylum Division, as well as on individual cases on which 
legal advice was sought to ensure proper application of the divergent 
screening standards on various forms of relief. IJs reviewing negative 
determinations by asylum officers were also compelled to spend 
additional time ensuring the proper application of these screening 
standards, compared to the time spent reviewing determinations under a 
single standard in the status quo ante. The Departments failed to 
account in the relevant rulemakings for the necessity of expending 
these additional resources beyond time spent by asylum officers 
themselves making screening determinations.
    The Departments also stated in the Global Asylum NPRM: ``The 
procedural aspects of making screening determinations regarding fear of 
persecution and of torture would remain largely the same. Moreover, 
using a higher standard of proof in the screening context for those 
seeking statutory withholding of removal or protection under the CAT 
regulations in the immigration courts allows the Departments to more 
efficiently and promptly distinguish between aliens whose claims are 
more likely or less likely to ultimately be meritorious.'' 85 FR 36271. 
However, for the reasons detailed above, the Departments' experience 
implementing divergent screening standards while the TCT Bar IFR was in 
effect demonstrated that these predictions of increased efficiency and 
promptness did not materialize, undermining congressional intent that 
the screening process in the expedited removal context operate nimbly 
and in a truly expedited manner.
    In clarifying that the ``significant possibility'' standard applies 
not only to credible fear screening for asylum, but also to credible 
fear screening for statutory withholding and CAT protection, the 
Departments will help ensure that the expedited removal process remains 
truly expedited, and will allow for asylum officers to adhere to a 
single legal standard in screening claims for protection from 
persecution and torture in the expedited removal process.
    Similarly, through this rulemaking, the Departments are generally 
returning the regulatory text to codify the pre-2018, and current, 
practice of screening for eligibility for asylum and statutory 
withholding of removal while not applying most bars to asylum or 
withholding of removal in the credible

[[Page 18093]]

fear screening process. The Global Asylum rule, which has been 
enjoined, attempted to require the application of a significantly 
expanded list of mandatory bars during credible fear screenings and 
mandated a negative credible fear finding should any of the bars apply 
to the noncitizen at that initial stage. See 85 FR 80278; supra note 4. 
In the Global Asylum NPRM, the Departments justified this change by 
stating: ``From an administrative standpoint, it is pointless and 
inefficient to adjudicate claims for relief in section 240 proceedings 
when it is determined that an alien is subject to one or more of the 
mandatory bars to asylum or statutory withholding at the screening 
stage. Accordingly, applying those mandatory bars to aliens at the 
`credible fear' screening stage would eliminate removal delays inherent 
in section 240 proceedings that serve no purpose and eliminate the 
waste of adjudicatory resources currently expended in vain.'' 85 FR 
36272. However, upon reconsideration, the Departments have determined 
that, in most cases, the stated goal of promoting administrative 
efficiency can be better accomplished through the mechanisms 
established in this rulemaking rather than through applying mandatory 
bars at the credible fear screening stage. The Departments now believe 
that it is speculative whether, had the Global Asylum rule been 
implemented, a meaningful portion of the EOIR caseload might have been 
eliminated because some individuals who were found at the credible fear 
screening stage to be subject to a mandatory bar would not have been 
placed into section 240 proceedings. This is particularly true in light 
of the Global Asylum rule's preservation of a noncitizen's ability to 
request review of a negative credible fear determination (including the 
application of mandatory bars at the credible fear stage) by an IJ, as 
well as that rule's allowance for individuals found subject to a 
mandatory bar to asylum at the credible fear screen stage to 
nonetheless have their asylum claims considered by an IJ in asylum-and-
withholding-only proceedings if they demonstrate a reasonable 
possibility of persecution or torture and are not subject to a bar to 
withholding of removal. Requiring asylum officers to broadly apply 
mandatory bars during credible fear screenings would have made these 
screenings less efficient, undermining congressional intent that the 
expedited removal process be truly expeditious, and would further limit 
DHS's ability to use expedited removal to an extent that is 
operationally advantageous.
    Requiring asylum officers to broadly apply the mandatory bars at 
credible fear screening would increase credible fear interview and 
decision times because asylum officers would be expected to devote time 
to eliciting testimony, conducting analysis, and making decisions about 
all applicable bars. For example, when the TCT Bar IFR was in 
effect,\20\ asylum officers were required to spend additional time 
during any interview where the bar potentially applied developing the 
record related to whether the bar applied, whether an exception to the 
bar might have applied, and, if the noncitizen appeared to be barred 
and did not qualify for an exception to the bar, developing the record 
sufficiently such that a determination could be made according to the 
higher reasonable fear standard. As another example, a ``particularly 
serious crime'' is not statutorily defined in detail, beyond an 
aggravated felony,\21\ and offenses typically are designated as 
particularly serious crimes through case-by-case adjudication--the kind 
of fact-intensive inquiry requiring complex legal analysis that would 
be more appropriate in a full adjudication before an asylum officer or 
in section 240 proceedings with the availability of judicial review 
than in credible fear screenings.\22\ Presently, asylum officers ask 
questions related to all mandatory bars to develop the record 
sufficiently and identify potential bars but, since mandatory bars are 
not currently being applied in the credible fear determination, the 
record does not need to be developed to the level of detail that would 
be necessary if the issue of a mandatory bar was outcome-determinative 
for the credible fear determination. If a mandatory bar were to become 
outcome determinative, it would be necessary to develop the record 
sufficiently to make a decision about the mandatory bar such that, 
depending on the facts, the interview would go beyond its 
congressionally intended purpose as a screening for potential 
eligibility for asylum or related protection--and a fail-safe to 
minimize the risk of refoulement--and would instead become a decision 
on the relief or protection itself. The level of detailed testimony 
necessary in some cases to make such a decision would require asylum 
officers to spend significantly more time developing the record during 
the interview and conducting additional research following the 
interview.
---------------------------------------------------------------------------

    \20\ See supra note 19.
    \21\ See INA 208(b)(2)(A)(ii), (B)(i), 8 U.S.C. 
1158(b)(2)(A)(ii), (B)(i).
    \22\ See Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982) 
(setting out multi-factor test to determine whether a noncitizen has 
committed a particularly serious crime, including ``the nature of 
the conviction, the circumstances and underlying facts of the 
conviction, the type of sentence imposed, and, most importantly, 
whether the type and circumstances of the crime indicate that the 
alien will be a danger to the community''); see also Matter of L-S-, 
22 I&N Dec. 645, 649 (BIA 1999) (en banc); Matter of G-G-S-, 26 I&N 
Dec. 339, 343-43 (BIA 2014) (``We have held that for an alien who 
has not been convicted of an aggravated felony or whose aggravated 
felony conviction did not result in an aggregate term of 
imprisonment of 5 years or more, it is necessary to examine the 
nature of the conviction, the type of sentence imposed, and the 
circumstances and underlying facts of the conviction to determine 
whether the crime was particularly serious.'').
---------------------------------------------------------------------------

    IJs reviewing negative credible fear determinations where a 
mandatory bar was applied would, depending on the facts, similarly face 
a more complicated task, undermining the efficiency of that process as 
well. Applying a mandatory bar often involves a complex legal and 
factual inquiry. While asylum officers are trained to gather and 
analyze such information to determine the applicability of mandatory 
bars in affirmative asylum adjudications, they are currently instructed 
to assess whether certain bars may apply in the credible fear screening 
context. See USCIS, Credible Fear of Persecution and Torture 
Determinations Lesson Plan 42-43 (Feb. 13, 2017). The latter assessment 
is designed to identify any mandatory bar issues requiring further 
exploration for IJs and the ICE attorneys representing DHS in section 
240 removal proceedings, see 6 U.S.C. 252(c), rather than to serve as a 
comprehensive analysis upon which a determination on the applicability 
of a bar may be based.\23\ Because of the complexity of the inquiry 
required to develop a sufficient record upon which to base a decision 
to apply certain mandatory bars, such a decision is, in general and 
depending on the facts, most appropriately made in the context of a 
full merits interview or hearing, whether before an asylum officer or 
an IJ, and not in a screening context.
---------------------------------------------------------------------------

    \23\ See USCIS, Credible Fear of Persecution and Torture 
Determinations Lesson Plan 44 (Feb. 13, 2017) (``The officer must 
keep in mind that the applicability of these bars requires further 
evaluation that will take place in the full hearing before an 
immigration judge if the applicant otherwise has a credible fear of 
persecution or torture. In such cases, the officer should consult a 
supervisory officer follow procedures on `flagging' such information 
for the hearing, and prepare the appropriate paperwork for a 
positive credible fear finding.'').
---------------------------------------------------------------------------

    Furthermore, the Departments recognize that considerations of 
procedural fairness counsel against applying mandatory bars that entail 
extensive fact-finding during the credible fear screening process. In

[[Page 18094]]

response to the Global Asylum NPRM, a commenter emphasized that each of 
the mandatory bars involves intensive legal analysis and asserted that 
requiring asylum officers to conduct this analysis during a screening 
interview would result in ``the return of many asylum seekers to harm's 
way.'' Global Asylum rule, 85 FR 80294. Another commenter expressed the 
concern that ``countless asylum-seekers could be erroneously knocked 
out of the process based on hasty decisions, misunderstandings, and 
limited information.'' Id. at 80295. Upon review and reconsideration, 
due to the intricacies of the fact-finding and legal analysis often 
required to apply mandatory bars, the Departments now believe that 
individuals found to have a credible fear of persecution generally 
should be afforded the additional time, procedural protections, and 
opportunity to further consult with counsel that the Asylum Merits 
process or section 240 removal proceedings provide.
    In light of these concerns, the Departments have reconsidered their 
position stated in the preamble to the Global Asylum NPRM that any 
removal delays resulting from the need to fully consider the mandatory 
bars in section 240 proceedings ``serve no purpose'' and amount to 
``adjudicatory resources currently expended in vain.'' 85 FR 36272. As 
stated above, the Departments now believe that, in many cases, 
especially when intensive fact-finding is required, the notion that 
consideration of mandatory bars at the credible fear screening stage 
would result in elimination of removal delays for individuals subject 
to the bars is speculative. Moreover, to the extent consideration of 
mandatory bars in section 240 proceedings does result in delays to 
removal, the Departments believe in light of the public comments cited 
above that such delays do serve important purposes--particularly in 
cases with complicated facts--namely, ensuring that the procedures and 
forum for determining the applicability of mandatory bars appropriately 
account for the complexity of the inquiry and afford noncitizens 
potentially subject to the mandatory bars a reasonable and fair 
opportunity to contest their applicability. Adjudicatory resources 
designed to ensure that noncitizens are not refouled to persecution due 
to the erroneous application of a mandatory bar are not expended in 
vain. Rather, the expenditure of such resources helps keep the 
Departments in compliance with Federal law and international treaty 
obligations.
    Given the need to preserve the efficiencies Congress intended in 
making credible fear screening part of the expedited removal process 
and to ensure procedural fairness for those individuals found to have a 
significant possibility of establishing eligibility for asylum or 
statutory withholding of removal but for the potential applicability of 
a mandatory bar, the Departments have decided that the Global Asylum 
rule's broad-based application of mandatory bars at the credible fear 
screening stage should be rescinded.\24\
---------------------------------------------------------------------------

    \24\ In addition to the proposed changes to the DOJ portions of 
the regulations in the NPRM related to the application of mandatory 
bars in the credible fear process, the IFR also includes a similar 
edit to 8 CFR 1003.42(d)(1). Both 8 CFR 1003.42 and 8 CFR 1208.30 
relate to IJs' review of asylum officers' credible fear 
determinations, and the Departments intend for the regulations to be 
consistent with regard to the treatment of mandatory bars in the 
credible fear review process.
---------------------------------------------------------------------------

    If an asylum officer determines that an individual does not have a 
credible fear of persecution or torture, the individual can request 
that an IJ review the asylum officer's negative credible fear 
determination. 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). The Departments 
also are re-codifying the treatment of a failure or refusal on the part 
of a noncitizen to request IJ review of a negative credible fear 
determination as a request for IJ review. See 8 CFR 208.30(g)(1), 
1208.30(g)(2)(i). In the Global Asylum rule, the Departments amended 
regulations to treat a noncitizen's refusal to indicate whether they 
would like IJ review as declining IJ review. See 85 FR 80296. The 
Departments explained that treating refusals as requests for review 
serves to create unnecessary and undue burdens and that it is 
reasonable to require an individual to answer affirmatively when asked 
by an asylum officer if they would like IJ review. See id. In this 
rule, the Departments are reverting to the pre-existing regulations. 
Upon reconsideration, the Departments recognize that there may be 
numerous explanations for a noncitizen's refusal or failure to indicate 
whether they would like to seek IJ review--and indeed there will be 
cases in which a noncitizen wants review but fails to explicitly 
indicate it. The Departments now conclude that treating any refusal or 
failure to elect review as a request for IJ review, rather than as a 
declination of such review, is fairer and better accounts for the range 
of explanations for a noncitizen's failure to seek review. Treating 
such refusals or failures to elect review as requests for IJ review 
appropriately ensures that any noncitizen who may wish to pursue IJ 
review (that is, any noncitizen who has not, in fact, declined IJ 
review) has the opportunity to do so. A noncitizen who genuinely wishes 
to decline review may of course withdraw the request for review before 
the IJ; in such a case, the IJ will return the noncitizen's case to DHS 
for execution of the expedited removal order. See 8 CFR 1208.30(g)(2).
    In comparison to the NPRM, in this rule, the Departments are 
amending 8 CFR 208.30(g) to provide, in new 8 CFR 208.30(g)(1)(i), that 
USCIS may, in its discretion, reconsider a negative credible fear 
determination with which an IJ has concurred, provided the request for 
reconsideration is received from the noncitizen or their attorney or 
initiated by USCIS no more than 7 days after the concurrence by the IJ, 
or prior to the noncitizen's removal, whichever date comes first. 
USCIS's reconsideration of any such request is discretionary. After an 
IJ has concurred with a negative credible fear determination, DHS can 
execute the individual's expedited removal order, promptly removing the 
individual from the United States. Under no circumstances, however, 
will USCIS accept more than one request for reconsideration.
    The Departments carefully considered the public comments received 
in response to the NPRM related to the proposal to foreclose any DHS 
reconsideration of negative credible fear determinations. Based on 
those comments, the Departments decided to retain the existing 
regulatory language related to DHS reconsideration, see 8 CFR 
208.30(g), but to place reasonable procedural limits on the practice. 
Accordingly, the Departments are amending the regulation to include 
numerical and time limitations and clarify that DHS may, in its 
discretion, reconsider a negative credible fear determination with 
which an IJ has concurred. These procedural limitations and 
clarifications are necessary to ensure that reconsideration requests to 
USCIS do not obstruct the streamlined process that Congress intended in 
creating expedited removal. These changes also are consistent with the 
statutory scheme of INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B), under 
which it is the IJ review of the negative credible fear determination 
that serves as the check to ensure that noncitizens who have a credible 
fear of persecution or torture are not returned based on an erroneous 
screening determination by USCIS. The expedited removal statute and its 
implementing regulations generally prohibit any further administrative 
review or appeal of an IJ's decision made after review of a

[[Page 18095]]

negative credible fear determination. See INA 235(b)(1)(B)(iii)(III), 
(C), 8 U.S.C. 1225(b)(1)(B)(iii)(III), (C); 8 CFR 1003.42(f)(2), 
1208.30(g)(2)(iv)(A). Congress similarly has made clear its intent that 
expedited removal should remain a streamlined, efficient process by 
limiting judicial review of many determinations in expedited removal. 
See INA 242(a)(2)(A), (e), 8 U.S.C. 1252(a)(2)(A), (e). These statutory 
provisions limiting administrative and judicial review and directing 
expeditious determinations reflect clear congressional intent that 
expedited removal be a truly expedited process.
    The numerical and time limitations promulgated in this rule are 
consistent with congressional intent and with the purpose of the 
current regulation allowing for such requests. The Departments believe 
that, over time, the general allowance for reconsideration by USCIS 
asylum offices came to be used beyond its original intended scope. Such 
requests have not used a formalized process, since there is currently 
no formal mechanism for noncitizens to request reconsideration of a 
negative credible fear determination before USCIS; instead, they are 
entertained on an informal, ad hoc basis whereby individuals contact 
USCIS asylum offices with their reconsideration requests after an IJ 
has affirmed the negative credible fear determination. This informal, 
ad hoc allowance for such requests, including multiple requests, has 
proven difficult to manage. To deal with these many requests, USCIS has 
had to devote time and resources that could more efficiently be used on 
initial credible fear and reasonable fear determinations, affirmative 
asylum cases, and now, Asylum Merits interviews with the present rule.

B. Applications for Asylum

    If the noncitizen is found to have a credible fear, this IFR 
changes the procedure as described above. Under this rule, rather than 
referring the individual to an IJ for an adversarial section 240 
removal proceeding in the first instance, or, as provided for in a 
presently enjoined regulation, asylum-and-withholding-only proceedings 
before an IJ,\25\ the individual's asylum application instead may be 
retained for further consideration by USCIS through a nonadversarial 
interview before an asylum officer. See 8 CFR 208.30(f). Similarly, if, 
upon review of an asylum officer's negative credible fear 
determination, an IJ finds that an individual does have a credible fear 
of persecution or torture, the individual also can be referred back to 
USCIS for further consideration of the individual's asylum claim. See 8 
CFR 1003.42, 1208.30(g). To eliminate delays between a positive 
credible fear determination and the filing of an application for 
asylum, the Departments are amending regulations to provide, in new 8 
CFR 208.3(a)(2), that the written record of the credible fear 
determination created by USCIS during the credible fear process, and 
subsequently served on the individual together with the service of the 
credible fear decision itself, will be treated as an ``application for 
asylum,'' with the date of service on the individual considered the 
date of filing. Every individual who receives a positive credible fear 
determination and whose case is retained by USCIS will be considered to 
have filed an application for asylum at the time the determination is 
served on them. The application will be considered filed or received as 
of the service date for purposes of the one-year filing deadline for 
asylum, see INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B), and for starting 
the waiting period for eligibility to file for employment authorization 
based upon a pending asylum application, see 8 CFR 208.3(c)(3). The 
Departments are amending regulations to provide that this application 
for asylum will be considered a complete application for purposes of 8 
CFR 208.4(a), 208.7, and 208.9(a) in order to qualify for an interview 
and adjudication, and will be subject to the other conditions and 
consequences provided for in 8 CFR 208.3(c) once the noncitizen signs 
the documentation under penalty of perjury and with notice of the 
consequences of filing a frivolous asylum application at the time of 
the Asylum Merits interview, as provided in new 8 CFR 208.3(a)(2).\26\
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    \25\ See Global Asylum rule, 85 FR 80276; supra note 4 
(discussing recent regulations and their current status).
    \26\ In addition, the Departments are amending 8 CFR 1208.3 and 
1208.4 to account for changes made by this rule, including the 
provisions that will treat the record of the credible fear 
determination as an application for asylum in the circumstances 
addressed by the rule. The amendment at 8 CFR 1208.3(c)(3) affects 
language that was enacted in the rule entitled ``Procedures for 
Asylum and Withholding of Removal,'' 85 FR 81698 (Dec. 16, 2020). 
The December 16, 2020, rulemaking made various changes to DOJ 
regulations, including 8 CFR 1208.3(c)(3). Id. at 81750-51. The 
December 16, 2020, rulemaking is preliminarily enjoined. See Order 
at 1, Nat'l Immigrant Justice Ctr. v. Exec. Office for Immigration 
Review, No. 21-cv-56 (D.D.C. Jan. 14, 2021). This rule makes changes 
to the regulations only as necessary to effectuate its goals. The 
Departments anticipate that additional changes to the relevant 
regulations, including rescission of or revision to the language 
added by the preliminarily enjoined regulation, will be made through 
later rulemakings. See Executive Office of the President, OMB, OIRA, 
Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, 
https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1125-AB15 (last visited Feb. 28, 
2022).
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    The Departments will implement these changes to the credible fear 
process by having the USCIS asylum officer conducting the credible fear 
interview advise the noncitizen of the consequences of filing a 
frivolous asylum application and capture the noncitizen's relevant 
information through testimony provided under oath. During the credible 
fear interview, as 8 CFR 208.30(d) already provides and will continue 
to provide under the IFR, the asylum officer will ``elicit all relevant 
and useful information'' for the credible fear determination, create a 
summary of the material facts presented by the noncitizen during the 
interview, review the summary with the noncitizen, and allow the 
noncitizen to correct any errors. The record created will contain the 
necessary biographical information and sufficient information related 
to the noncitizen's fear claim to be considered an application. As a 
matter of longstanding practice in processing families through credible 
fear screenings, the information captured by the asylum officer during 
the credible fear interview will contain information about the 
noncitizen's spouse and children, if any, including those who were not 
part of the credible fear determination--but under this rule only a 
spouse or child who was included in the credible fear determination 
issued pursuant to 8 CFR 208.30(c) or who has a pending asylum 
application with USCIS pursuant to 8 CFR 208.2(a)(1)(ii) can be 
included as a dependent on the request for asylum.\27\ See 8 CFR 
208.3(a)(2). Any spouse or child included as a dependent on the 
credible fear determination may request to file a separate asylum 
application as a

[[Page 18096]]

principal applicant with USCIS at any time while the principal's asylum 
application is pending with USCIS. See 8 CFR 208.3(a)(2). A copy of the 
principal applicant's application for asylum--the record of the 
credible fear determination, including the asylum officer's notes from 
the interview, the summary of material facts, and other materials upon 
which the determination was based--will be provided to the noncitizen 
at the time that the positive credible fear determination is served. 
See 8 CFR 208.30(f). As provided in new 8 CFR 208.4(b)(2), the 
noncitizen may subsequently amend or correct the biographic or credible 
fear information in the Form I-870, Record of Determination/Credible 
Fear Worksheet, or supplement the information collected during the 
process that concluded with a positive credible fear determination, up 
until 7 days prior to the scheduled Asylum Merits interview before a 
USCIS asylum officer, or for documents submitted by mail, postmarked no 
later than 10 days before the scheduled Asylum Merits interview. The 
asylum officer, finding good cause in an exercise of USCIS discretion, 
may consider amendments or supplements submitted after the 7- or 10-day 
submission deadline or may grant the applicant an extension of time 
during which the applicant may submit additional evidence, subject to 
the limitation on extensions described in 8 CFR 208.9(e)(2). In new 8 
CFR 208.9(e)(2), this rule further provides that, in the absence of 
exigent circumstances, an asylum officer shall not grant any extensions 
for submission of additional evidence that would prevent the Asylum 
Merits decision from being issued to the applicant within 60 days of 
service of the positive credible fear determination. The Departments 
believe that such limitations are necessary to ensure that the process 
remains expeditious while maintaining fairness.
---------------------------------------------------------------------------

    \27\ While only a spouse or child included on the credible fear 
determination or who presently has an asylum application pending 
with USCIS after a positive credible fear determination can be 
included as a dependent on the subsequent asylum application under 
this process, the noncitizen granted asylum remains eligible to 
apply for accompanying or follow-to-join benefits for any qualified 
spouse or child not included on the asylum application, as provided 
for in 8 CFR 208.21. The Departments believe that it is procedurally 
impractical to attempt to include a spouse or child on the 
application when the spouse or child has not previously been placed 
into expedited removal and subsequently referred to USCIS after a 
positive credible fear determination. This is similar to the 
inability to include a spouse or child not in section 240 removal 
proceedings on the asylum application of a principal asylum 
applicant who is in such section 240 removal proceedings. Under such 
circumstances, there is no clear basis for issuing a final order of 
removal against such an individual spouse or child should the asylum 
application not be approved.
---------------------------------------------------------------------------

    The information required to be gathered during the credible fear 
screening process is based on the noncitizen's own testimony under oath 
in response to questions from a trained USCIS asylum officer. Thus, the 
Departments believe that the screening would provide sufficient 
information upon which to ascertain the basis of the noncitizen's 
request for protection. Under this rule, noncitizens who receive a 
positive credible fear determination would have an asylum application 
on file with the Government within days of their credible fear 
screenings, thereby meeting the one-year asylum filing deadline, 
avoiding the risk of filing delays, and expeditiously beginning the 
waiting period for employment authorization eligibility.

C. Proceedings for Further Consideration of the Application for Asylum 
by USCIS Through Asylum Merits Interview for Noncitizens With Credible 
Fear

    In this IFR, consistent with the NPRM, the Departments are amending 
regulations to authorize USCIS asylum officers to conduct Asylum Merits 
interviews for individuals whose cases are retained for further 
consideration by USCIS following a positive credible fear determination 
or returned to USCIS if an IJ vacates an asylum officer's negative 
credible fear finding.\28\ The Departments carefully considered the 
comments received in response to the NPRM focused on timelines related 
to Asylum Merits interviews, and, in this IFR, are including regulatory 
language clarifying timelines for scheduling hearings and providing 
asylum decisions.
---------------------------------------------------------------------------

    \28\ In addition to the proposed changes to the DHS portion of 
the regulations in the NPRM, the IFR also includes a similar edit to 
8 CFR 1003.42(d)(1). This edit is intended to ensure consistency 
with 8 CFR 1003.42 and the proposed edits to 8 CFR 1208.30(g)(2) so 
that both provisions properly direct that a case where an IJ vacates 
a negative credible fear finding will be referred back to USCIS as 
intended by both the NPRM and the IFR.
---------------------------------------------------------------------------

    As provided in 8 CFR 208.9(a)(1), USCIS will not schedule an Asylum 
Merits interview for further consideration of an asylum application 
following a positive credible fear determination fewer than 21 days 
after the noncitizen has been served a record of the positive credible 
fear determination, unless the applicant requests in writing that an 
interview be scheduled sooner. The asylum officer shall conduct the 
interview within 45 days of the date that the positive credible fear 
determination is served on the noncitizen--i.e., the date the asylum 
application is considered filed, see 8 CFR 208.3(a)(2)--subject to the 
need to reschedule an interview due to exigent circumstances. See 8 CFR 
208.9(a)(1). These timelines are consistent with the INA, which 
provides that, ``in the absence of exceptional circumstances, the 
initial interview or hearing on the asylum application shall commence 
not later than 45 days after the date an application is filed.'' INA 
208(d)(5)(A)(ii), 8 U.S.C. 1158(d)(5)(A)(ii).
    The nonadversarial Asylum Merits interview process will provide 
several procedural safeguards, such as the following: (1) The applicant 
may have counsel or a representative present, may present witnesses, 
and may submit affidavits of witnesses and other evidence, 8 CFR 
208.9(b); (2) the applicant or applicant's representative will have an 
opportunity to make a statement or comment on the evidence presented 
and the representative will also have the opportunity to ask follow-up 
questions of the applicant and any witness, 8 CFR 208.9(d)(1); (3) a 
verbatim transcript of the interview will be included in the referral 
package to the IJ, with a copy also provided to the noncitizen, 8 CFR 
208.9(f)(2), 1240.17(c); (4) an asylum officer will arrange for the 
assistance of an interpreter if the applicant is unable to proceed 
effectively in English, and if a USCIS interpreter is unavailable, 
USCIS will attribute any resulting delay to USCIS for purposes of 
eligibility for employment authorization, 8 CFR 208.9(g); and (5) the 
failure of a noncitizen to appear for an interview may result in the 
referral of the noncitizen to section 240 removal proceedings before an 
IJ, 8 CFR 208.10(a)(1)(iii), unless USCIS, in its own discretion, 
excuses the failure to appear, 8 CFR 208.10(b)(1). The Departments 
believe that these procedural safeguards will enhance efficiency and 
further the expeditious adjudication of noncitizens' asylum claims, 
while at the same time balancing due process and fairness concerns. The 
protection claims considered in Asylum Merits interviews will be 
adjudicated in a separate queue, apart from adjudications of 
affirmative asylum applications filed directly with USCIS.
    Allowing the cases of individuals who receive a positive credible 
fear determination to remain with USCIS for the Asylum Merits 
interview, rather than initially referring the case to an IJ for an 
adversarial section 240 removal proceeding or, as provided for in a 
presently enjoined regulation, for an asylum-and-withholding-only 
proceeding,\29\ will capitalize on the investment of time and expertise 
that USCIS has already made and, for the subset of cases in which 
asylum is granted by USCIS, save investment of time and resources by 
EOIR and ICE. It will also enable meritorious cases to be resolved more 
quickly, reducing the overall asylum system backlogs and using limited 
asylum officer and IJ resources more efficiently. The Asylum Merits 
interview process affords noncitizens a fair opportunity to present 
their claims. In addition, noncitizens

[[Page 18097]]

who are not granted asylum will be referred to an immigration court for 
a streamlined section 240 removal proceeding, which means that an IJ 
will consider their asylum and, as necessary, statutory withholding and 
CAT protection claims. Overall, these ample procedural safeguards will 
ensure due process, respect human dignity, and promote equity.
---------------------------------------------------------------------------

    \29\ See Global Asylum rule, 85 FR 80276; supra note 4 
(discussing recent regulations and their current status).
---------------------------------------------------------------------------

    Section 235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), 
authorizes a procedure for ``further consideration'' of asylum 
applications that is separate from section 240 removal proceedings. As 
the Department of Justice recognized over two decades ago, ``the 
statute is silent as to the procedures for those who . . . demonstrate 
a credible fear of persecution.'' Inspection and Expedited Removal of 
Aliens; Detention and Removal of Aliens; Conduct of Removal 
Proceedings; Asylum Procedures, 62 FR 10312, 10320 (Mar. 6, 1997) 
(interim rule). It ``does not specify how or by whom this further 
consideration should be conducted.'' Inspection and Expedited Removal 
of Aliens; Detention and Removal of Aliens; Conduct of Removal 
Proceedings; Asylum Procedures, 62 FR 444, 447 (Jan. 3, 1997) (proposed 
rule).
    By not specifying what ``further consideration'' entails, the 
statute leaves it to the Departments to determine. Under the familiar 
Chevron framework, it is well-settled that such ``ambiguity constitutes 
an implicit delegation from Congress to the agency to fill in the 
statutory gaps.'' FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 
120, 159 (2000) (citing Chevron, U.S.A., Inc. v. Natural Resources 
Defense Council, Inc., 467 U.S. 837, 844 (1984)); see also Epic Sys. 
Corp. v. Lewis, 138 S. Ct. 1612, 1629 (2018) (noting that Chevron rests 
on ``the premise that a statutory ambiguity represents an implicit 
delegation to an agency to interpret a statute which it administers'' 
(quotation marks and citation omitted)). An agency may exercise its 
delegated authority to plug the gap with any ``reasonable 
interpretation'' of the statute. Chevron, 467 U.S. at 844.
    By its terms, the phrase ``further consideration'' is open-ended. 
The fact that Congress did not specify the nature of the proceedings 
for those found to have a credible fear, see INA 235(b)(1)(B)(ii), 8 
U.S.C. 1225(b)(1)(B)(ii), contrasts starkly with two other provisions 
in the same section that expressly require or deny section 240 removal 
proceedings for certain other classes of noncitizens. In one provision, 
INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A), Congress provided that an 
applicant for admission who ``is not clearly and beyond a doubt 
entitled to be admitted'' must be ``detained for a proceeding under 
[INA 240].'' And in another, INA 235(a)(2), 8 U.S.C. 1225(a)(2), 
Congress provided that ``[i]n no case may a stowaway be considered . . 
. eligible for a hearing under [INA 240].'' This shows that Congress 
knew how to specifically require or prohibit referral to a section 240 
removal proceeding when it wanted to do so. ``Where Congress includes 
particular language in one section of a statute but omits it in another 
section of the same Act, it is generally presumed that Congress acts 
intentionally and purposely in the disparate inclusion or exclusion.'' 
Salinas v. United States R.R. Ret. Bd., 141 S. Ct. 691, 698 (2021) 
(quotation marks and citation omitted).
    The D.C. Circuit has ``consistently recognized that a congressional 
mandate in one section and silence in another often suggests not a 
prohibition but simply a decision not to mandate any solution in the 
second context, i.e., to leave the question to agency discretion.'' 
Catawba Cnty., N.C. v. EPA, 571 F.3d 20, 36 (D.C. Cir. 2009) (quotation 
marks and citation omitted). That Congress's silence in section 
235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), permits the 
Departments discretion to establish procedures for ``further 
consideration'' is reinforced by the fact that the noncitizens whom DHS 
has elected to process using the expedited removal procedure are 
expressly excluded from the class of noncitizens who are statutorily 
guaranteed section 240 removal proceedings under section 235(b)(2)(A) 
of the INA, 8 U.S.C. 1225(b)(2)(A).
    If, following an Asylum Merits interview described in this IFR, 
USCIS grants asylum, the individual may be allowed to remain in the 
United States indefinitely with the status of asylee and eventually may 
apply for lawful permanent residence. See INA 208(c)(1), 209(b), 8 
U.S.C. 1158(c)(1), 1159(b). If asylum is not granted, the asylum 
officer will refer the application, together with the appropriate 
charging document and the record of the Asylum Merits interview, for 
adjudication in streamlined section 240 removal proceedings before an 
IJ. See 8 CFR 208.14(c)(1), 1240.17(a).
    The Departments carefully considered the public comments received 
in response to the NPRM and reconsidered the proposals outlined in the 
NPRM related to having USCIS asylum officers make final decisions 
regarding statutory withholding of removal and CAT protection claims 
and issue removal orders. See 86 FR 46917-19. In this IFR, DHS is 
amending 8 CFR 208.9(b) to provide that, in the case of a noncitizen 
whose case is retained by or referred to USCIS for further 
consideration through an Asylum Merits interview, an asylum officer 
will also elicit all relevant and useful information bearing on the 
applicant's eligibility for statutory withholding of removal or CAT 
protection. This IFR further provides in 8 CFR 208.16(a) and (c) that 
if the asylum application is not granted, the asylum officer will 
determine whether the noncitizen is eligible for statutory withholding 
of removal under 8 CFR 208.16(b) or CAT protection under 8 CFR 
208.16(c). Asylum officers will not issue orders of removal to 
applicants who are not granted asylum as proposed in the NPRM, but 
rather will refer applicants who are not granted asylum to the 
immigration court for consideration of their protection claims in 
streamlined section 240 removal proceedings before an IJ. See 8 CFR 
208.14(c)(1), 208.16(a). USCIS will not issue a final decision on an 
applicant's request for statutory withholding of removal or CAT 
protection. Rather, pursuant to new 8 CFR 1240.17(d), (f)(2)(i)(B), and 
(i)(2), if an asylum officer does not grant asylum but determines the 
noncitizen is eligible for statutory withholding of removal or CAT 
protection and the IJ does not grant asylum, the IJ will issue a 
removal order and, subject to certain exceptions, give effect to 
USCIS's determination.
    If the asylum application includes a dependent who has not filed a 
separate application, the asylum officer will, as appropriate and prior 
to referring the family to streamlined section 240 proceedings before 
an IJ, elicit information sufficient to determine whether there is a 
significant possibility that the applicant's dependent has experienced 
or fears harm that would be an independent basis for protection in the 
event that the principal applicant is not granted asylum. See 8 CFR 
208.9(b), (i). If a spouse or child who was included in the principal 
applicant's request for asylum does not separately file an asylum 
application that is adjudicated by USCIS, the principal's asylum 
application will be deemed by EOIR to satisfy EOIR's application filing 
requirements for the spouse or child as principal applicants. See 8 CFR 
208.3(a)(2), 1208.3(a)(2). This provision will allow any spouse or 
child in the streamlined procedure to exercise their right to seek 
protection on an independent basis without the need for delaying the 
proceedings to allow for the preparation and filing of an I-589, 
Application for Asylum and for Withholding of Removal. The

[[Page 18098]]

Departments have determined that these changes meet the goals of this 
rule, such as improving efficiency while allowing noncitizens to 
receive a full and fair opportunity to be heard, and are also 
responsive to commenters' concerns raised in response to the NPRM, as 
detailed in Sections IV.D.5 and 6 of this preamble. While USCIS will 
not make final decisions regarding statutory withholding of removal and 
CAT protection claims and issue removal orders, it is appropriate for 
USCIS to make eligibility determinations regarding statutory 
withholding of removal and protection under the CAT. As a threshold 
issue, applications for asylum, statutory withholding of removal, and 
protection under the CAT are all factually linked. While the legal 
standards and requirements differ among the forms of relief and 
protection, the relevant applications will substantially share the same 
set of operative facts that an asylum officer would have already 
elicited, including through evidence and testimony, in the 
nonadversarial Asylum Merits interview. Moreover, asylum officers 
receive extensive training, and develop extensive expertise, in 
assessing claims and country conditions, and are qualified to determine 
whether an applicant will face harm in the proposed country. See INA 
235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E); 8 CFR 208.1(b). Asylum officers 
also receive training on the standards and eligibility issues related 
to determinations for statutory withholding of removal and CAT 
protection in order to conduct credible fear screening interviews and 
make appropriate credible fear determinations under 8 CFR 208.30(e). 
See 8 CFR 208.1(b).
    While asylum officers will also not make final decisions regarding 
a dependent's eligibility for asylum, statutory withholding of removal, 
and CAT protection claims if the dependent has not received a prior 
separate positive credible fear determination or filed a separate 
principal asylum application with USCIS, it is appropriate for asylum 
officers to elicit sufficient information regarding each dependent's 
eligibility for protection in order to allow for those claims to be on 
the record and appropriately considered should the family be placed 
into streamlined section 240 removal proceedings. In many cases, the 
family members will likely substantially share the same set of 
operative facts that an asylum officer would have already elicited from 
the principal applicant, including through evidence and testimony, 
during the same nonadversarial Asylum Merits interview. Accordingly, 
the additional questioning that will ordinarily be needed to develop 
the record enough to facilitate an IJ's adjudication of any claims 
through streamlined section 240 proceedings is expected to be modest. 
Moreover, any dependent who wishes to be adjudicated as a principal 
applicant by USCIS may file a separate application with USCIS prior to 
referral to removal proceedings.
    Where a noncitizen's asylum application is not granted by USCIS, 
automatic referral to streamlined section 240 proceedings--as further 
discussed in Section III.D of this preamble--ensures that the 
application of the principal applicant and any family members may be 
reviewed by the IJ. In the streamlined section 240 proceedings, the IJ 
will adjudicate de novo the noncitizen's and any family members' 
applications for asylum and, if USCIS determined them ineligible for 
statutory withholding of removal or protection under the CAT, such 
claims as well. Statutory withholding of removal and CAT protection are 
nondiscretionary forms of protection, the granting of which is 
mandatory upon a showing of eligibility. See, e.g., Myrie v. Att'y Gen. 
United States, 855 F.3d 509, 515-16 (3d Cir. 2017); Benitez Ramos v. 
Holder, 589 F.3d 426, 431 (7th Cir. 2009). Because an asylum officer 
does not issue an order of removal under the IFR, it is appropriate to 
wait until the IJ enters the order of removal before generally giving 
effect to USCIS's statutory withholding of removal and CAT protection 
eligibility determinations. See Matter of I-S- & C-S-, 24 I&N Dec. 432, 
433 (BIA 2008).

D. Streamlined Section 240 Removal Proceedings Before the Immigration 
Judge

    Upon careful consideration of the comments received in response to 
the NPRM, as discussed in Section IV of this preamble, this IFR does 
not adopt the IJ review proceedings proposed in the NPRM. See 86 FR 
46946-47 (8 CFR 1003.48, 1208.2(c) (proposed)). Instead, the 
Departments will place noncitizens whose applications for asylum are 
not granted by USCIS, as well as any spouse or children included on the 
noncitizen's application, in section 240 proceedings that will be 
streamlined as provided in new 8 CFR 1240.17. See 8 CFR 1240.17(a), 
(b). As provided in new 8 CFR 1240.17(a), IJs must conduct these 
proceedings in accordance with the procedures and requirements set 
forth in section 208 of the Act, 8 U.S.C. 1158.
    Currently, further consideration of an asylum application by an 
individual in expedited removal is done through section 240 
proceedings. See, e.g., 8 CFR 208.30(f) (2020); \30\ 8 CFR part 1240, 
subpart A (2020). Such proceedings follow issuance of an NTA, which 
informs the noncitizen of DHS's charges of inadmissibility or 
removability, INA 239(a)(1), 8 U.S.C. 1229(a)(1), and these proceedings 
provide an opportunity for the noncitizen to make his or her case to an 
IJ, INA 240(a)(1), 8 U.S.C. 1229a(a)(1). Parties in section 240 removal 
proceedings have a wide range of well-established 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 in the appropriate U.S. Court of Appeals, INA 242, 8 U.S.C. 
1252.
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    \30\ The Global Asylum rule would have revised the process, 
placing such noncitizens into asylum-and-withholding-only 
proceedings instead of section 240 proceedings, see 85 FR 80276, but 
it was enjoined, see supra note 4.
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    Under the IFR, USCIS will have authority to adjudicate asylum 
claims brought by noncitizens subject to expedited removal and found to 
have a credible fear of persecution or torture rather than immediately 
referring such cases for adjudication by IJs in section 240 removal 
proceedings. The Departments have determined that noncitizens who 
subsequently are not granted asylum by USCIS should be referred to 
section 240 removal proceedings that will be streamlined as described 
in new 8 CFR 1240.17. The well-established rights that apply in section 
240 proceedings will continue to apply during the 240 proceedings 
described in new 8 CFR 1240.17, but the latter will include new 
procedures designed to streamline the process while continuing to 
ensure fairness.
    The Departments believe that these cases can be adjudicated more 
expeditiously than other cases in section 240 removal proceedings. 
Unlike other cases, noncitizens subject to this IFR will have had a 
full opportunity to present their protection claims to an asylum 
officer. Moreover, as established in new 8 CFR 1240.17(c) and (e), IJs 
and parties in any subsequent streamlined section 240 removal 
proceedings will have the benefit of a fully developed record and

[[Page 18099]]

decision prepared by USCIS.\31\ Because the USCIS Asylum Merits 
interview will create a record that includes testimony and documentary 
evidence, the Departments believe that less time will be needed in 
immigration court proceedings to build the evidentiary record. Thus, 
cases will be resolved more expeditiously before the IJ. The 
Departments recognize that, in some instances, IJs may need to take 
additional testimony and evidence--beyond what is contained in the 
USCIS record--to fully develop the record. See, e.g., 8 CFR 
1240.17(f)(4)(iii). By providing IJs with the ability to rely upon the 
previously developed record in most cases, while preserving the 
flexibility for IJs to take new evidence and testimony when warranted, 
without the additional motions practice contemplated by the NPRM's 
provisions, the IFR creates more streamlined, efficient adjudications 
overall. Accordingly, the Departments believe that it is possible to 
achieve the purposes of the NPRM--to increase efficiency and maintain 
procedural fairness--by making procedural changes to streamline 
existing 240 proceedings instead of establishing the IJ review 
proceedings proposed under the NPRM.
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    \31\ New 8 CFR 1240.17(c) provides that DHS will serve the 
record of proceedings for the Asylum Merits interview and the asylum 
officer's written decision on the respondent and on the immigration 
court no later than the date of the master calendar hearing; it 
further provides that, in the exceptional case in which service is 
not effectuated by that date, the schedule of proceedings pursuant 
to new 8 CFR 1240.17(f) will be delayed until service is 
effectuated.
---------------------------------------------------------------------------

    In keeping with this goal, the IFR provides that these section 240 
proceedings will be subject to particular procedural requirements 
designed to streamline the overall process and take advantage of the 
record created by the asylum officer while still providing noncitizens 
with a full and fair opportunity to present testimony and evidence in 
support of their claims. Where the IJ would not be able to take 
advantage of that record, the streamlining measures do not apply. Thus, 
new 8 CFR 1240.17(k) exempts certain cases from the streamlined 
process, including, for example, where the respondent has produced 
evidence of prima facie eligibility for relief or protection other than 
asylum, statutory withholding of removal, CAT protection, or voluntary 
departure, 8 CFR 1240.17(k)(2); where the respondent has raised a 
substantial defense to the removal charge,\32\ 8 CFR 1240.17(k)(3); or 
where the designated country of removal is different from the one that 
the asylum officer considered in adjudicating the noncitizen's 
application for asylum or protection, 8 CFR 1240.17(k)(4).\33\ New 8 
CFR 1240.17(k) makes other exceptions for certain vulnerable 
noncitizens and it exempts cases that have been reopened or remanded. 
See 8 CFR 1240.17(k)(1), (5), (6). Accordingly, with these exceptions, 
the Departments believe that these proceedings can be expedited given 
the limited forms of relief and protection that will need to be 
adjudicated by the IJ and given that the IJ and the parties will 
benefit from the record developed before USCIS.
---------------------------------------------------------------------------

    \32\ As stated in note 8, supra, the rule does not specify that 
a particular type of evidence is required in order to show prima 
facie eligibility for relief, and such evidence could include 
testimonial evidence as well as documentary evidence.
    \33\ Under this IFR, a noncitizen's accompanying spouse and 
children may be included in the request for asylum if they were 
included in the credible fear determination. See 8 CFR 208.3(a)(2), 
208.30(c). Where a noncitizen is accompanied by a spouse or 
children, and the noncitizen is found to have a credible fear of 
persecution or torture, the family has the choice to have the spouse 
and children be included as dependents on the asylum application or 
to separately seek asylum as principal applicants. See 8 CFR 
208.3(a)(2), 208.30(c). Should the family choose to have the spouse 
and children proceed solely as dependents, the asylum officer will, 
as appropriate, elicit sufficient information to determine whether 
there is a significant possibility that the applicant's spouse or 
child has experienced or fears harm that would be an independent 
basis for protection in the event that the principal applicant is 
not granted asylum prior to referring the family to the IJ for a 
hearing. See 8 CFR 208.9(b), (i). If a spouse or child who was 
included in the principal applicant's request for asylum does not 
separately file an asylum application that is adjudicated by USCIS, 
the principal's asylum application will be deemed by EOIR to satisfy 
EOIR's application filing requirements for the spouse or child as 
principal applicants. See 8 CFR 1208.3(a)(2).
---------------------------------------------------------------------------

    The IFR provides additional procedures that will contribute to 
efficient adjudication. As provided in revised 8 CFR 208.3(a)(2) and 8 
CFR 1208.3(a)(2) and new 8 CFR 1240.17(e), the IFR treats the record 
underlying the positive credible fear determination as the noncitizen's 
asylum application, as well as an asylum application for any spouse or 
child included as a dependent on the application for purposes of EOIR's 
filing requirements if USCIS does not grant the principal applicant's 
application and if the spouse or child does not separately file an 
asylum application that is adjudicated by USCIS. This procedure 
obviates the need for the noncitizen and any dependent to prepare and 
file a new application before the IJ. IJs are also required to hold 
status conferences to identify and narrow issues under new 8 CFR 
1240.17(f)(1), (2). The USCIS Asylum Merits interview record and 
decision will permit the parties and the IJ to identify any errors or 
omissions in the record, narrow issues, and provide any additional 
bases for asylum or related protection. Specifically, the rule, as 
provided in new 8 CFR 1240.17(f)(2) and (3), imposes obligations on the 
parties to identify and narrow the issues prior to the merits hearing, 
although the obligations on the noncitizen depend on whether the 
noncitizen has representation. As provided by new 8 CFR 
1240.17(f)(2)(ii)(A), DHS must state whether it intends to rest on the 
existing record, waive cross-examination of the respondent, otherwise 
participate in the proceedings before the IJ, or waive appeal in the 
event the IJ grants protection. This position may be retracted by DHS, 
orally or in writing, prior to the issuance of the IJ's decision, if 
DHS seeks consideration of evidence pursuant to the standard laid out 
in 8 CFR 1240.17(g)(2). See 8 CFR 1240.17(f)(2)(ii)(C). Moreover, if 
DHS indicates that it will participate in the case, at the status 
conference or via a subsequent written statement it shall state its 
position on the respondent's claim(s); state which elements of the 
respondent's claim(s) it is contesting and which facts it is disputing, 
if any, and provide an explanation of its position; identify any 
witnesses it intends to call; provide any additional non-rebuttal or 
non-impeachment evidence; and state the status of the identity, law 
enforcement, or security investigations or examinations required by 
section 208(d)(5)(A)(i) of the Act, 8 U.S.C. 1158(d)(5)(A)(i), and 8 
CFR 1003.47. See 8 CFR 1240.17(f)(2)(ii), (f)(3). If DHS does not 
timely respond, either at the status conference or in its written 
statement, to one or more of the respondent's arguments or claimed 
bases for asylum, including which arguments raised by the respondent 
DHS is disputing and which facts it is contesting, the IJ has authority 
to deem those arguments or claims unopposed, provided, however, that 
DHS may respond at the merits hearing to any arguments or claimed bases 
for asylum first advanced by the respondent after the status 
conference. See 8 CFR 1240.17(f)(3)(i). The IFR creates additional 
efficiencies by permitting IJs to decide applications on the 
documentary record in certain circumstances, including where neither 
party has elected to present testimony and DHS has not elected to 
cross-examine the noncitizen or where the IJ determines that the 
application can be granted without further testimony and DHS declines 
to cross-examine the noncitizen. See 8 CFR 1240.17(f)(4)(i), (ii). 
Notwithstanding these provisions,

[[Page 18100]]

however, the IJ shall hold a hearing if the IJ decides that a hearing 
is necessary to fulfill the IJ's duty to fully develop the record. See 
id.
    The IFR also gives appropriate effect to the asylum officer's 
determination of a noncitizen's eligibility for statutory withholding 
of removal or protection under the CAT. This serves to increase 
efficiency and provides a safeguard where an asylum officer has already 
found that the noncitizen could be subject to persecution or torture if 
removed. In general, in cases where the IJ denies asylum and issues a 
removal order, the IJ will give effect to the asylum officer's 
determination of eligibility for statutory withholding of removal or 
protection under the CAT; the IJ may not sua sponte review the asylum 
officer's determination. See 8 CFR 1240.17(d), (f)(2)(i)(B), (i)(2). 
However, these provisions account for the possibility that DHS may 
submit evidence or testimony that specifically pertains to the 
respondent and that was not included in the record of proceedings for 
the USCIS Asylum Merits interview in order to demonstrate that the 
respondent is not eligible for the protection(s) the asylum officer 
determined. See id. In such a case, the IJ will, based on the review of 
this new evidence or testimony, make a separate determination regarding 
the noncitizen's eligibility for statutory withholding of removal or 
protection under the CAT, as relevant.
1. Schedule of Proceedings
    The Departments are imposing procedural adjudication time frames 
and limitations on continuances and filing extensions during 
streamlined section 240 removal proceedings under this IFR. The 
Departments believe that these time frames and limitations are 
justified given both the streamlining procedures discussed above and 
the fact that such cases will come to the IJ with a complete asylum 
application and following a nonadversarial interview before an asylum 
officer at which a comprehensive record, including a verbatim 
transcript and decision, has been assembled.
    Under new 8 CFR 1240.17, the Departments will impose procedural 
time frames on IJs with respect to their hearing schedules. 
Specifically, an IJ will hold a master calendar hearing 30 days after 
service of the NTA or, if a hearing cannot be held on that date, on the 
next available date no later than 35 days after service. As provided by 
new 8 CFR 1240.17(f)(1) and (2), the IJ will hold a status conference 
30 days after the master calendar hearing or, if a status conference 
cannot be held on that date, on the next available date no later than 
35 days after the master calendar hearing, followed by a merits 
hearing, if necessary, 60 days after the master calendar hearing or, if 
a hearing cannot be held on that date, on the next available date no 
later than 65 days after the master calendar hearing.\34\ If needed, 
under new 8 CFR 1240.17(f)(4)(iii), the IJ may hold a subsequent merits 
hearing to resolve any lingering issues or complete testimony no later 
than 30 days after the initial merits hearing. As further discussed 
below, the IJ may grant continuances and filing extensions under 
specified standards. See 8 CFR 1240.17(h). Finally, under 8 CFR 
1240.17(f)(5), whenever practical, the IJ shall issue an oral decision 
on the date of the final merits hearing or, if the IJ determines that 
no such hearing is warranted, no more than 30 days after the status 
conference; and where issuance of an oral decision on such date is not 
practicable, the IJ shall issue an oral or written decision as soon as 
practicable, no later than 45 days after the final merits hearing or, 
if the IJ concludes that no hearing is necessary, no later than 75 days 
after the status conference.\35\
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    \34\ Because the timing of the merits hearing is tied to the 
date that the status conference occurs, the Departments note that 
any delay of the status conference will necessarily result in a 
corresponding delay of the merits hearing. In other words, if the 
status conference occurs 45 days after the master calendar hearing 
rather than 30-35 days after it because, for example, the respondent 
requested a continuance to seek counsel or the immigration court had 
to close on the original date of the status conference, see 8 CFR 
1240.17(h), the merits hearing would still occur 30-35 days after 
the status conference--on days 75-80.
    \35\ In other words, where it is not practicable to issue an 
oral decision on the date of the final merits hearing, the 
immigration judge has up to 45 days to issue a decision. Where an IJ 
has determined that a merits hearing is not necessary, and it is not 
practicable to issue a decision within 30 days after the status 
conference, the IJ has up to an additional 45 days within which to 
issue a decision.
---------------------------------------------------------------------------

    The combined effect of these provisions should fully achieve the 
NPRM's efficiency goals while allowing noncitizens to receive a full 
and fair hearing in streamlined section 240 removal proceedings rather 
than through the IJ review process contemplated by the NPRM. The well-
established rights that apply in ordinary section 240 proceedings will 
continue to apply during the streamlined section 240 proceedings 
described in new 8 CFR 1240.17, but certain new procedures will 
streamline the process by taking advantage of the record created by the 
asylum officer and ensure a prompt, efficient, and fair hearing on the 
respondent's claim.
a. Pre-Hearing Procedures
    In order to best prepare the case for adjudication, new 8 CFR 
1240.17(f) establishes initial procedures to ensure that the IJ has a 
complete picture of the case and the relevant issues prior to 
conducting any merits hearing that may be needed. As provided in new 8 
CFR 1240.17(f)(1), at the master calendar hearing, the IJ will perform 
the functions required by 8 CFR 1240.10(a), including advising the 
respondent of the right to be represented, at no expense to the 
Government, by counsel of the respondent's own choosing. See 8 CFR 
1240.17(f)(1). Additionally, the IJ will advise as to the nature of the 
streamlined section 240 removal proceedings, including that the 
respondent has pending applications for asylum, statutory withholding 
of removal, and withholding or deferral of removal under the CAT, as 
appropriate; that the respondent has the right to testify, call 
witnesses, and present evidence in support of these applications; and 
of the deadlines that govern the submission of evidence. See id. 
Finally, except where the noncitizen is ordered removed in absentia, at 
the conclusion of the master calendar hearing the IJ will schedule a 
status conference to take place 30 days after the master calendar 
hearing or, if necessary, on the next available hearing date no later 
than 35 days after the master calendar hearing. See id. The IJ will 
also advise as to the requirements for the status conference. See id. 
The adjournment of the case until the status conference will not be 
considered a noncitizen-requested continuance under new 8 CFR 
1240.17(h)(2). See id.
    The purpose of the status conference is to take pleadings, identify 
and narrow any issues, and determine whether the case can be decided on 
the documentary record alone or, if a merits hearing before the IJ is 
needed, to ready the case for such a hearing. See 8 CFR 1240.17(f)(2). 
In general, the Departments expect that the parties will use the record 
of the Asylum Merits interview as a tool to prepare the proceeding for 
the IJ's adjudication. See id.
    At the status conference, the noncitizen must indicate, orally or 
in writing, whether the noncitizen intends to contest removal or seek 
any protection(s) for which the asylum officer did not determine the 
noncitizen eligible. See 8 CFR 1240.17(f)(2)(i). The IJ will also 
advise the noncitizen that the respondent has the right to testify, 
call witnesses, and present evidence in support of the noncitizen's 
application; and of the deadlines that govern the

[[Page 18101]]

submission of evidence. If a noncitizen expresses an intent to contest 
removal or seek protection for which the asylum officer did not 
determine the noncitizen eligible, the noncitizen must, orally or in 
writing: (1) Indicate whether the noncitizen plans to testify before 
the IJ; (2) identify any witnesses the noncitizen plans to call at the 
merits hearing; and (3) provide any additional documentation in support 
of the applications. See 8 CFR 1240.17(f)(2)(i)(A). A represented 
noncitizen is further required to: (4) Describe any alleged errors or 
omissions in the asylum officer's decision or the record of proceedings 
before the asylum officer; (5) articulate or confirm any additional 
bases for asylum and related protection, whether or not they were 
presented or developed before the asylum officer; and (6) state any 
additional requested forms of relief or protection. If a noncitizen is 
unrepresented, the IJ will ask questions and guide the proceedings in 
order to elicit relevant information from the noncitizen and otherwise 
fully develop the record. See Quintero v. Garland, 998 F.3d 612, 623-30 
(4th Cir. 2021) (describing the general duty of the IJ to develop the 
record, which is ``especially crucial in cases involving unrepresented 
noncitizens''); see also Matter of S-M-J-, 21 I&N Dec. 722, 723-24, 729 
(BIA 1997) (en banc) (also describing the general duty of the IJ to 
develop the record). If a noncitizen does not express an intent to 
contest removal or seek protection for which the asylum officer did not 
determine the noncitizen eligible, the IJ will order the noncitizen 
removed and will not conduct further proceedings. See 8 CFR 
1240.17(f)(2)(i)(B). In such cases, where the asylum officer determined 
the noncitizen eligible for statutory withholding of removal or 
protection under the CAT, the IJ will issue a removal order and will 
give effect to that protection, unless DHS makes a prima facie 
showing--through evidence that specifically pertains to the noncitizen 
and that was not included in the record of proceedings for the USCIS 
Asylum Merits interview--that the noncitizen is not eligible for such 
protection. See id.
    For its part, DHS must indicate at the status conference, orally or 
in writing, whether it intends to: (1) Rest on the record; (2) waive 
cross-examination of the noncitizen; (3) otherwise participate in the 
case; or (4) waive appeal if the IJ decides to grant the noncitizen's 
application. See 8 CFR 1240.17(f)(2)(ii). If DHS indicates that it will 
participate in the case, it then must, orally or in writing: (1) State 
its position on each of the noncitizen's claimed grounds for asylum or 
related protection; (2) state which elements of the noncitizen's claim 
for asylum or related protection it is contesting and which facts it is 
disputing, if any, and provide an explanation of its position; (3) 
identify any witnesses it intends to call at any merits hearing; (4) 
provide any additional non-rebuttal or non-impeachment evidence; and 
(5) state whether the appropriate identity, law enforcement, or 
security investigations or examinations have been completed. See id. 
DHS can provide this information at the status conference or by 
submitting a written statement under 8 CFR 1240.17(f)(3)(i) as outlined 
below. See id.
    At the status conference, as further detailed below, the IJ will 
determine whether further proceedings are warranted; if they are, the 
IJ will schedule the merits hearing to take place 60 days after the 
master calendar hearing or, if the merits hearing cannot be held on 
that date, on the next available date no later than 65 days after the 
master calendar hearing. See 8 CFR 1240.17(f)(2). The IJ may also 
schedule additional status conferences prior to any merits hearing if 
the IJ determines such conferences will contribute to efficient 
resolution of the case. See id.
    After the adjournment of the status conference, where DHS intends 
to participate in a case, DHS is required to file a written statement 
providing information required under 8 CFR 1240.17(f)(2)(ii) but that 
DHS did not provide at the status conference, as well as any other 
relevant information or argument in response to the noncitizen's 
submissions. See 8 CFR 1240.17(f)(3)(i). DHS's written statement is due 
no later than 15 days prior to the scheduled merits hearing or, if the 
IJ determines that no such hearing is warranted, no later than 15 days 
following the status conference. See id. The noncitizen may also submit 
a supplemental filing after the status conference to reply to any 
statement submitted by DHS, identify any additional witnesses, and 
provide any additional documentation in support of the respondent's 
application. See 8 CFR 1240.17(f)(3)(ii). Any such filing is due no 
later than 5 days prior to the scheduled merits hearing or, if the IJ 
determines that no such hearing is warranted, no later than 25 days 
following the status conference. See id.
    The IFR's efficiencies and timeline are predicated on the parties' 
participation in the status conference and other procedural steps 
needed to narrow the issues and prepare the case for adjudication in 
advance of any merits hearing before an IJ. This rule helps ``ensure 
efficient adjudication by focusing the immigration courts' limited 
resources on the issues that the parties actually contest.'' Matter of 
A-C-A-A-, 28 I&N Dec. 351, 352 (A.G. 2021). In this regard, as 
described above, DHS ICE Office of the Principal Legal Advisor 
attorneys representing DHS in immigration court (``DHS attorneys'') 
play a critical role in narrowing the issues during section 240 removal 
proceedings. The Departments believe that the rule's requirements will 
increase the overall efficiency of case adjudications and help parties 
better prepare their respective positions before the IJ.
b. Merits Hearing(s)
    Based on the parties' statements and submissions at the status 
conference, the IJ will determine whether the noncitizen's application 
may be decided on the documentary record without a merits hearing or 
whether a merits hearing is required. See 8 CFR 1240.17(f)(4)(i)-(iii). 
Specifically, an IJ may decline to hold a merits hearing and decide the 
application on the documentary record if: (1) DHS has indicated that it 
waives cross-examination and neither the noncitizen nor DHS has 
requested to present testimony under the pre-hearing procedures 
described above, see 8 CFR 1240.17(f)(4)(i); or (2) the noncitizen has 
timely requested to present testimony and DHS has indicated that it 
waives cross-examination and does not intend to present testimony or 
produce evidence, and the IJ concludes that the asylum application can 
be granted without further testimony, see 8 CFR 1240.17(f)(4)(ii). 
Notwithstanding these provisions, the IJ shall hold a hearing if the IJ 
decides that a hearing is necessary to fulfill the IJ's duty to fully 
develop the record. See 8 CFR 1240.17(f)(4)(i), (ii).\36\
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    \36\ The Departments emphasize that permitting the IJ to issue 
decisions in some cases without holding a hearing does not undermine 
the fairness or integrity of asylum proceedings because the 
respondent will already have testified, under oath, before the 
asylum officer. The IFR's framework only allows for the IJ to render 
a decision without scheduling a hearing in a manner that would not 
prejudice the noncitizen or undermine the integrity of asylum 
proceedings.
    In Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), the BIA held that 
``[a]t a minimum . . . the regulations require that an applicant for 
asylum and withholding take the stand, be placed under oath, and be 
questioned as to whether the information in the written application 
is complete and correct.'' Id. at 118. The BIA determined that the 
regulations required these procedures for fairness reasons and to 
maintain ``the integrity of the asylum process itself.'' Id. The 
provisions in this IFR that permit IJs to decide applications 
without a hearing in certain circumstances do not raise the same 
concerns that animated the BIA's decision in Matter of Fefe, 
including because the cases covered by the IFR involve noncitizens 
who have already received a hearing on their asylum and protection 
claims before an asylum officer.

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[[Page 18102]]

    If the IJ determines to hold a merits hearing, the IJ will conduct 
that hearing as in section 240 removal proceedings generally. The IJ 
will swear the noncitizen to the truth and accuracy of any information 
or statements, hear all live testimony requested by the parties, and 
consider the parties' submissions. See 8 CFR 1240.17(f)(4)(iii)(A).
    The Departments' goal is for the IJ to issue an oral decision at 
the conclusion of a single merits hearing (when a merits hearing is 
required) whenever practicable, see 8 CFR 1240.17(f)(4)(iii)(A), 
(f)(5), but the Departments recognize that not every case may be 
resolved in that fashion. The rule therefore allows the IJ flexibility 
in such circumstances to hold another status conference and take any 
other steps the IJ considers necessary and efficient for the resolution 
of the case. See 8 CFR 1240.17(f)(4)(iii)(B). In all circumstances, the 
IJ will be required to schedule any subsequent merits hearing no later 
than 30 days after the initial merits hearing. Id.
2. Evidentiary Standard
    This IFR provides that, in the streamlined section 240 proceedings, 
noncitizens and DHS will have the opportunity to address alleged errors 
in the USCIS Asylum Merits record, present testimony, and submit 
additional evidence. The longstanding evidentiary standard for section 
240 proceedings applies--evidence must be relevant and probative, and 
its use must be fundamentally fair. 8 CFR 1240.17(g)(1); see 8 CFR 
1240.7(a) (``The immigration judge may receive in evidence any oral or 
written statement that is material and relevant to any issue in the 
case . . . .''); Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir. 2004) 
(``The traditional rules of evidence do not apply to immigration 
proceedings . . . . `The sole test for admission of evidence is whether 
the evidence is probative and its admission is fundamentally fair.' '' 
(citations omitted) (citing Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996); 
quoting Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995))); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 505 (BIA 1980) (holding that evidence 
must be ``relevant and probative and its use not fundamentally 
unfair''). In addition, any evidence submitted must be timely (after 
taking into account a timely request for a continuance or filing 
extension that is granted), see 8 CFR 1240.17(g)(1), subject to certain 
exceptions, see 8 CFR 1240.17(g)(2). Evidence submitted after the 
deadline set by the IJ but before the IJ issues a decision in the case 
may be considered only if it could not reasonably have been obtained 
and presented before the applicable deadline through the exercise of 
due diligence, or it its exclusion would violate a statute or the 
Constitution.\37\ See id. As in all section 240 proceedings, the IJ 
will exclude evidence that does not meet the requirements described 
above. See 8 CFR 1240.17(g)(1).
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    \37\ In addition, as described below, under new 8 CFR 
1240.17(h), a party may seek to have an extension of a filing 
deadline. For example, a party may seek to have a filing deadline 
extended if there is an unexpected delay in receipt of the evidence 
from a medical practitioner or other party.
---------------------------------------------------------------------------

    The Departments are not adopting the NPRM's proposal that 
noncitizens seeking to submit additional evidence for IJ review would 
have to demonstrate that it was not duplicative and was necessary to 
develop the record. Instead, the Departments believe the IFR's 
provisions will promote efficiency and fairness by allowing the parties 
and adjudicators to apply longstanding, workable evidentiary standards. 
The Departments believe that the NPRM's efficiency goals can be 
achieved in the context of streamlined section 240 removal proceedings 
without the NPRM's evidentiary restrictions because, unlike individuals 
in ordinary section 240 removal proceedings, noncitizens whose cases 
are subject to this rule will already have received an initial 
adjudication by USCIS, and their case will come to the immigration 
court with a fully developed record.
3. Timeline for Proceedings
    As noted in the NPRM, the Departments' purpose for conducting 
rulemaking on this topic is to develop a ``better and more efficient'' 
system for processing applications for asylum and related relief 
brought by individuals subject to expedited removal under section 235 
of the Act, 8 U.S.C. 1225. 86 FR 46907. Under the current procedures, 
individuals who are first placed in the expedited removal process but 
who are subsequently found to have a credible fear of persecution or 
torture are placed in section 240 removal proceedings before the 
immigration court. 8 CFR 208.30(f) (2020). Under existing procedures, 
these proceedings often take several years to complete and can be 
highly protracted and inefficient. Further, as stated in the NPRM, the 
current system was created at a time when most noncitizens encountered 
at the border were single adults from Mexico, relatively few of whom 
made asylum claims. See 86 FR 46908. In contrast, at present, a large 
share of noncitizens encountered at the border are families and 
unaccompanied children, a significant portion of whom express the 
intention to seek asylum. See id.
    Given the above, the IFR establishes the timeline and procedures 
detailed below to apply in all cases subject to the streamlined section 
240 removal proceedings. The Departments believe that these procedures 
serve important efficiency interests while still permitting noncitizens 
an appropriate amount of time to prepare for proceedings.
    Immigration court proceedings commence when DHS files the NTA, and 
the master calendar hearing will take place 30 days after the date the 
NTA is served or, if a hearing cannot be held on that date, on the next 
available date no later than 35 days after service. See 8 CFR 
1240.17(b). Except where the noncitizen is ordered removed in absentia, 
the IJ will then schedule a status conference 30 days after the initial 
master calendar hearing or, if a status conference cannot be held on 
that date, on the next available date no later than 35 days after the 
master calendar hearing. See 8 CFR 1240.17(f)(1). From there, if 
warranted, the merits hearing will be scheduled 60 days after the 
master calendar hearing or, if a hearing cannot be scheduled on that 
date, on the next available date no later than 65 days after the master 
calendar hearing. See 8 CFR 1240.17(f)(2). If any subsequent merits 
hearing is necessary, the IJ will schedule it no later than 30 days 
after the initial merits hearing. See 8 CFR 1240.17(f)(4)(iii)(B). 
Finally, whenever practicable, the IJ shall issue an oral decision on 
the date of the final merits hearing or, if no such hearing is held, 30 
days after the status conference. See 8 CFR 1240.17(f)(4)(iii)(A), 
(f)(5). If the IJ cannot issue a decision on that date, the IJ must 
issue an oral or written decision as soon as practicable and no later 
than 45 days after the applicable date described in the previous 
sentence. See 8 CFR 1240.17(f)(5).
    Under the default timeline set forth in the IFR, at least 90 days 
is provided from the service of the NTA before the merits hearing for 
the noncitizen to secure counsel, obtain evidence, and otherwise 
prepare--in addition to the time the noncitizen had to secure counsel 
and obtain evidence leading up to the Asylum Merits interview. See 
Matter of C-B-, 25 I&N Dec. 888, 889 (BIA 2012) (holding that ``the 
[IJ] must grant a reasonable and realistic period of time to provide a 
fair opportunity for a

[[Page 18103]]

noncitizen to seek, speak with, and retain counsel''). Moreover, as 
discussed below, 8 CFR 1240.17(h) contemplates continuances and filing 
extensions by request of the parties. The Departments believe these 
time frames, including the standards for continuances and extensions, 
ensure adequate time and protect procedural fairness while also meeting 
the Department's goal of creating efficient and streamlined 
proceedings. Unlike in ordinary section 240 removal proceedings, 
noncitizens in these streamlined section 240 proceedings will already 
have had an incentive and time to obtain representation prior to the 
commencement of immigration court proceedings. Similarly, noncitizens 
will not be appearing in immigration court on a totally blank slate; 
they will have had notice regarding what sort of evidence is needed and 
a prior opportunity to obtain any available evidence ahead of the 
Asylum Merits interview. In addition, where a noncitizen is placed in 
removal proceedings under the procedures in the IFR, the noncitizen 
will have already applied before USCIS for asylum, withholding of 
removal, and protection under the CAT, as relevant. The noncitizen will 
have had the opportunity to testify before, and submit evidence to, the 
asylum officer, and the asylum officer will have fully evaluated the 
noncitizen's eligibility for asylum, withholding of removal, and 
protection under the CAT. Moreover, any dependent would have also had 
the opportunity to testify before the asylum officer, and the asylum 
officer would have elicited testimony from the dependent for any 
independent basis for eligibility for asylum, withholding of removal, 
and protection under the CAT. The IJ will be provided with the record 
before USCIS, including the asylum officer's decision, the verbatim 
transcript of the Asylum Merits interview, and the evidence on which 
the asylum officer relied in reaching the decision. In the Departments' 
view, it is appropriate for cases under this IFR to proceed on an 
expedited time frame before the immigration courts as claims will have 
been significantly developed and analyzed before the proceedings start.
4. Continuances and Filing Extensions
    The IFR establishes modified standards for continuances and filing 
extensions in streamlined 240 proceedings. Generally, in immigration 
proceedings, a noncitizen may file a motion for continuance for good 
cause shown. See 8 CFR 1003.29. The regulations have incorporated this 
``good cause'' standard since 1987, see 8 CFR 3.27 (1987),\38\ and 
substantial case law and agency guidance have elaborated on its 
meaning, see, e.g., Matter of L-A-B-R-, 27 I&N Dec. 405, 413-19 (A.G. 
2018) (clarifying the framework for applying the ``good cause'' 
standard when a noncitizen requests a continuance to pursue collateral 
relief); Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009) (setting 
forth factors for consideration when determining whether there is good 
cause for a continuance so that a noncitizen may pursue adjustment of 
status before USCIS); Matter of Garcia, 16 I&N Dec. 653, 657 (BIA 1978) 
(holding that, in general, IJs should favorably exercise discretion to 
continue proceedings when a prima facie approvable visa petition and 
adjustment application are submitted); Usubakunov v. Garland, 16 F.4th 
1299, 1305 (9th Cir. 2021) (holding that the denial of a noncitizen's 
motion for a continuance to permit his attorney to be present at his 
merits hearing amounted to a violation of his statutory right to 
counsel). The Departments believe that good cause remains an 
appropriate standard for most continuances because it provides IJs with 
sufficient guidance and discretion to manage their cases both fairly 
and efficiently, and the IFR adopts this standard as the default for 
continuance requests by noncitizens in streamlined section 240 
proceedings, subject to certain restrictions described below.
---------------------------------------------------------------------------

    \38\ See also Aliens and Nationality; Rules of Procedure for 
Proceedings Before Immigration Judges, 52 FR 2931, 2934, 2938 (Jan. 
29, 1987) (final rule). The regulation at 8 CFR 3.27 has been 
redesignated twice--first to 8 CFR 3.29, second to its current 
location at 8 CFR 1003.29--without amending the regulatory text. See 
Executive Office for Immigration Review; Rules of Procedures, 57 FR 
11568, 11569 (Apr. 6, 1992) (interim rule); Aliens and Nationality; 
Homeland Security; Reorganization of Regulations, 68 FR 9824, 9830 
(Feb. 28, 2003) (final rule). The regulatory text was recently 
amended by ``Procedures for Asylum and Withholding of Removal,'' 85 
FR 81698, 81699, 81750 (Dec. 16, 2020) (final rule), but that rule 
has been preliminarily enjoined, see Order at 1, Nat'l Immigrant 
Justice Ctr. v. EOIR, No. 21-cv-56 (D.D.C. Jan. 14, 2021).
---------------------------------------------------------------------------

    Specifically, the IFR imposes limits on the length of continuances 
that may be granted for good cause. First, no individual continuance 
for good cause may exceed 10 days unless the IJ determines that a 
longer continuance would be more efficient. See 8 CFR 1240.17(h)(2)(i). 
This will ensure that continuances do not delay proceedings 
unnecessarily, either by being too long or too short. The Departments 
recognize that, on occasion, it may be appropriate and more efficient 
to grant one lengthier continuance to achieve its intended purpose--for 
example, to gather evidence that will take time to obtain or to secure 
the availability of a witness--such that it would not be necessary to 
grant further continuances at the time that the proceedings are 
scheduled to reconvene. Cf. Meza Morales v. Barr, 973 F.3d 656, 665 
(7th Cir. 2020) (Barrett, J.) (`` `[T]imeliness' is not a hard and fast 
deadline; some cases are more complex and simply take longer to 
resolve. Thus, not all mechanisms that lengthen the proceedings of a 
case prevent `timely' resolution. That is presumably why nobody appears 
to think that continuances conflict with the regulation's timeliness 
requirement.''). Thus, this IFR provides IJs with sufficient 
flexibility to grant continuances for good cause to ensure fairness of 
proceedings while appropriately balancing efficiency considerations.
    Second, the IFR also establishes two modified continuance 
procedures that govern in specific factual circumstances unique to 
streamlined section 240 removal proceedings. The Departments believe 
that the IFR's streamlined section 240 proceedings warrant modified 
standards for continuances under certain conditions because the IFR's 
streamlined 240 proceedings occur after noncitizens have had a 
nonadversarial hearing before an asylum officer and have had a chance 
to present their claims for asylum and protection from removal. 
Additionally, the Departments have a considerable interest in 
developing an efficient process to fully and fairly adjudicate the 
claims of those noncitizens who were initially screened for expedited 
removal but have demonstrated a credible fear of persecution or 
torture. As noted in the NPRM, section 235 of the Act, 8 U.S.C. 1225, 
developed a system that ``was initially designed for protection claims 
to be the exception, not the rule, among those encountered at or near 
the border.'' 86 FR 46909. Accordingly, the IFR's imposition of 
modified requirements for continuances in streamlined section 240 
removal proceedings is in keeping with the NPRM's purpose to develop 
more fair and efficient processes to adjudicate the claims of 
individuals encountered at or near the border and found to have a 
credible fear of persecution or torture.
    Specifically, the IFR provides that IJs should apply the ``good 
cause'' standard only where the aggregate length of all continuances 
and extensions requested by the noncitizen does not cause a merits 
hearing to take place more than 90 days after the master calendar 
hearing. 8 CFR 1240.17(h)(2)(i). The IFR then implements different 
criteria based

[[Page 18104]]

on the length of the resulting delay for deciding requests for 
continuances and extensions by the noncitizen that would cause a merits 
hearing to occur more than 90 days after the master calendar hearing. 
See 8 CFR 1240.17(h)(2)(ii)-(iii).
    Where a noncitizen-requested continuance or filing extension would 
cause a merits hearing to take place between 91 and 135 days after the 
master calendar hearing, an IJ should grant a continuance or filing 
extension if the noncitizen demonstrates that it is necessary to ensure 
a fair proceeding and the need for it exists despite the noncitizen's 
exercise of due diligence. See 8 CFR 1240.17(h)(2)(ii). The length of 
continuances and extensions under this provision are, as a matter of 
procedure, limited to the time necessary to ensure a fair proceeding. 
See id.
    Next, should the noncitizen request any continuances or filing 
extensions that would cause a merits hearing to take place more than 
135 days after the master calendar hearing, the noncitizen must 
demonstrate that failure to grant the continuance or extension would be 
contrary to statute or the Constitution. 8 CFR 1240.17(h)(2)(iii).
    Noncitizens in removal proceedings have the ``right to a full and 
fair hearing,'' Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) 
(collecting cases), which ``derives from the Due Process Clause of the 
Fifth Amendment,'' Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 
2009); see also Matter of Sibrun, 18 I&N Dec. 354, 356 (BIA 1983) (``It 
should be emphasized that the full panoply of procedural protections . 
. . are not mandated for [noncitizens] in these civil, administrative 
proceedings . . . . All that is required here is that the hearing be 
fundamentally fair.'' (citations omitted)). A full and fair hearing, 
``at a minimum, includes a reasonable opportunity to present and rebut 
evidence and to cross-examine witnesses.'' Grigoryan v. Barr, 959 F.3d 
1233, 1240 (9th Cir. 2020) (citing Cinapian, 567 F.3d at 1074 (citing, 
in turn, section 240(b)(4)(B) of the Act, 8 U.S.C. 1229a(b)(4)(B))). 
When adjudicating continuance and extension requests pursuant to the 
IFR's heightened standards, IJs should consider whether the request is 
related to the noncitizen's ability to reasonably present his or her 
case or implicates any of the rights found at section 240(b)(4)(B) of 
the Act, 8 U.S.C. 1229a(b)(4)(B). Thus, continuance requests to present 
testimony and evidence, to rebut evidence, or to cross-examine 
witnesses may meet the standards set forth in new 8 CFR 
1240.17(h)(2)(ii) and (iii).\39\
---------------------------------------------------------------------------

    \39\ The Departments note, however, that the decision to grant 
or deny a continuance or extension will depend on the individual 
facts and circumstances present in each case. See, e.g., De Ren 
Zhang v. Barr, 767 F. App'x 101, 104-05 (2d Cir. 2019) (collecting 
cases in which the Second Circuit upheld an IJ's denial of a 
continuance where a noncitizen ``had already received multiple 
continuances, or had a significant amount of time in which to gather 
and submit evidence'' but, under the particular circumstances of 
that case, concluding that the IJ's denial of a continuance was an 
abuse of the IJ's discretion); Bondarenko v. Holder, 733 F.3d 899, 
906-08 (9th Cir. 2013) (holding that the denial of the noncitizen's 
request for a continuance to investigate the Government's forensic 
report was a violation of the noncitizen's right to due process); 
Cruz Rendon v. Holder, 603 F.3d 1104, 1111 (9th Cir, 2010) 
(determining that ``the denial of the requested continuance'' to 
obtain evidence that bore directly on the noncitizen's eligibility 
for relief, ``in conjunction with the limitations placed upon her 
testimony, prevented [the noncitizen] from fully and fairly 
presenting her case'').
---------------------------------------------------------------------------

    In addition to the foregoing, the Departments emphasize that the 
Act provides noncitizens in section 240 removal proceedings with the 
right to representation at no Government expense, INA 240(b)(4)(A), 8 
U.S.C. 1229a(b)(4)(A), and that the noncitizen must be provided a 
reasonable opportunity to obtain counsel. See Matter of C-B-, 25 I&N 
Dec. 888, 889 (BIA 2012) (``In order to meaningfully effectuate the 
statutory and regulatory privilege of legal representation where it has 
not been expressly waived by a noncitizen, the Immigration Judge must 
grant a reasonable and realistic period of time to provide a fair 
opportunity for the noncitizen to seek, speak with, and retain 
counsel.''). Federal courts have strictly reviewed IJ decisions to deny 
continuances for seeking counsel or take other actions that may impinge 
that right in proceedings. See, e.g., Usubakunov, 16 F.4th at 1305 
(holding that the denial of a noncitizen's motion for a continuance to 
permit his attorney to be present at his merits hearing amounted to 
violation of his statutory right to counsel); see also Leslie v. Att'y 
Gen. of U.S., 611 F.3d 171, 180-81 (3d Cir. 2010) (The ``statutory and 
regulatory right to counsel is also derivative of the due process right 
to a fundamentally fair hearing.''); Hernandez Lara v. Barr, 962 F. 3d 
45, 54 (1st Cir. 2021) (``The statutory right to counsel is a 
fundamental procedural protection worthy of particular vigilance.''). 
Accordingly, a continuance to seek representation would be sufficient 
to qualify for the heightened continuance standards in these 
streamlined 240 proceedings if denial would violate a noncitizen's 
right to representation or another statutory or constitutional 
right.\40\
---------------------------------------------------------------------------

    \40\ This does not mean that a request for a continuance to seek 
counsel can never be denied. See Usubakunov, 16 F.4th at 1304 (``We 
recognize that immigration courts bear a crushing caseload and an 
applicant cannot unreasonably delay the administrative process, 
which has various component parts and must be managed efficiently by 
the IJ.''); see also Arrey, 916 F.3d at 1158 (explaining that a 
noncitizen ``is not denied the right to counsel where continuing the 
hearing would have been futile or where the IJ had done everything 
he reasonably could to permit [the noncitizen] to obtain counsel'' 
(quotation marks and citation omitted)). Such determinations are 
made on a case-by-case basis. See Biwot v. Gonzales, 403 F.3d 1094, 
1099 (9th Cir. 2005) (``The inquiry is fact-specific and thus varies 
from case to case. We pay particular attention to the realistic time 
necessary to obtain counsel; the time frame of the requests for 
counsel; the number of continuances; any barriers that frustrated a 
[noncitizen's] efforts to obtain counsel, such as being incarcerated 
or an inability to speak English; and whether the [noncitizen] 
appears to be delaying in bad faith.''); see also Gonzalez-Veliz v. 
Garland, 996 F.3d 942, 949 (9th Cir. 2021) (comparing cases granting 
and denying requests for continuances to seek counsel).
---------------------------------------------------------------------------

    The Departments emphasize that the time periods that determine the 
relevant continuance standard do not begin to run until the day after 
the master calendar hearing, at which the IJ will advise noncitizens of 
their rights in the streamlined section 240 proceedings, including 
their right to representation, at no expense to the Government, and of 
the availability of pro bono legal services, and will ascertain that 
noncitizens have received a list of such pro bono legal service 
providers. 8 CFR 1240.17(f)(1) (citing 8 CFR 1240.10(a)); see INA 
240(b)(4), 8 U.S.C. 1229a(b)(4). Furthermore, these calculations only 
pertain to delay of hearings and deadlines specifically included in 
this regulation, namely, the status conference hearing or a merits 
hearing and any filing deadline that, if extended, would have the 
effect of delaying a hearing. Any continuances with respect to interim 
hearings or deadlines that may be set by the IJ do not impact 
determination of the continuance standard that applies in this 
section.\41\ Continuances or filing extensions granted due to exigent 
circumstances, such as court closures or

[[Page 18105]]

illness of a party, will not count against the aggregate limits on 
continuances, as further explained below and as set forth at new 8 CFR 
1240.17(h)(4).
---------------------------------------------------------------------------

    \41\ In other words, the IJ would determine the appropriate 
standard to consider when reviewing a noncitizen's request for a 
continuance by considering how much the continuance would shift the 
merits hearing. For example, the IJ would apply the ``good cause'' 
standard under 8 CFR 1240.17(h)(2)(i) if a noncitizen requests an 
initial continuance of the status conference for 10 days, which 
would in turn cause the merits hearing to be delayed by 10 days 
(because the merits hearing will occur 30-35 days after the status 
conference). However, if the noncitizen later requests further 
continuances that would cause the status conference to occur later 
than day 60, and in turn would cause the merits hearing to occur 
later than day 90, the IJ would apply the heightened continuance 
standard under 8 CFR 1240.17(h)(2)(ii).
---------------------------------------------------------------------------

    The Departments have also contemplated DHS's need for continuances 
and provided for them in appropriate situations. The IJ may grant DHS a 
continuance and extend filing deadlines based on significant Government 
need, as set forth at new 8 CFR 1240.17(h)(3). The Departments 
anticipate that significant Government need will only arise in 
exceptional cases. The IFR provides a nonexclusive list of examples of 
significant Government needs, including ``confirming domestic or 
foreign law enforcement interest in the respondent'' and ``conducting 
forensic analysis of documents submitted in support of a relief 
application or other fraud-related investigations.'' 8 CFR 
1240.17(h)(3). The Departments believe that requiring DHS to 
demonstrate a significant Government need for a continuance serves 
efficiency interests without undermining DHS's opportunity to present 
its case. First, DHS inherently possesses the subject-matter expertise 
to navigate section 240 proceedings in general and does not face the 
same obstacles as do noncitizens in exploring and securing competent 
representation. Second, noncitizens, not DHS, bear the burden of proof 
throughout the majority of streamlined section 240 proceedings. Of 
particular relevance, noncitizens generally bear the burden of 
demonstrating eligibility for protection-based relief. See, e.g., INA 
208(b)(1)(B), 8 U.S.C. 1158(b)(1)(B). Third, DHS does not face the same 
issues with respect to access to counsel, especially when taking into 
consideration the likelihood that some noncitizens will be detained 
during the course of proceedings. IJs must be able to take such factors 
under consideration when considering continuance requests made by 
noncitizens, but they are not relevant to such requests made by DHS.
    In addition, these timelines and standards do not apply to an IJ's 
ability to continue a case, extend a filing deadline, or adjourn a 
hearing due to exigent circumstances, such as the unavailability of the 
IJ, the parties, or counsel due to illness, or the closure of the 
immigration court. See 8 CFR 1240.17(h)(4). Such continuances must be 
limited to the shortest time necessary and each must be justified. See 
id. The Departments recognize the magnitude and weight of asylum 
claims, and the importance of ensuring that asylum procedures do not 
undermine the fairness of proceedings. See Quintero, 998 F.3d at 632 
(``[N]eedless to say, these cases per se implicate extremely weighty 
interests in life and liberty, as they involve individuals seeking 
protection from persecution, torture, or even death.''); Xue v. BIA, 
439 F.3d 111, 113-14 (2d Cir. 2006) (``We should not forget, after all, 
what is at stake. For each time we wrongly deny a meritorious asylum 
[or withholding] application, . . . we risk condemning an individual to 
persecution. Whether the danger is of religious discrimination, 
extrajudicial punishment, forced abortion or involuntary sterilization, 
physical torture or banishment, we must always remember the toll that 
is paid if and when we err.''); Matter of O-M-O-, 28 I&N Dec. 191, 197 
(BIA 2021) (``The immigration court system has no more solemn duty than 
to provide refuge to those facing persecution or torture in their home 
countries, consistent with the immigration laws.''). The Departments 
believe that this rule strikes the appropriate balance by providing 
noncitizens with a full and fair opportunity to present their claims--
first before USCIS and then, if necessary, in streamlined section 240 
removal proceedings--while ensuring that such claims are adjudicated in 
a timely and efficient manner.
5. Consideration of Statutory Withholding of Removal and CAT Protection
    The NPRM proposed that, where USCIS denied asylum, IJs would 
reconsider the entire USCIS Asylum Merits record de novo, including 
grants of statutory withholding of removal and protection under the 
CAT. See, e.g., 86 FR 46946 (8 CFR 1003.48(a) (proposed)). Upon further 
review, including the review of comments as discussed further below, 
the Departments have determined that IJs should generally give effect 
to an asylum officer's determination that a noncitizen is eligible for 
statutory withholding of removal or protection under the CAT subject to 
certain exceptions.
    Specifically, under new 8 CFR 1240.17(i)(1), if an asylum officer 
finds that the noncitizen is not eligible for asylum or other 
protection sought, IJs will adjudicate de novo all aspects of a 
noncitizen's application, including the noncitizen's eligibility for 
asylum and, if necessary, statutory withholding of removal or 
protection under the CAT. However, if an asylum officer does not grant 
asylum but finds that a noncitizen is eligible for statutory 
withholding of removal or protection under the CAT, the noncitizen has 
two options.
    First, the noncitizen may indicate that the noncitizen does not 
intend to contest removal or seek protection(s) for which the asylum 
officer did not find the noncitizen eligible, as described at new 8 CFR 
1240.17(f)(2)(i)(B). In that case, unless DHS makes a prima facie 
showing, through evidence that specifically pertains to the noncitizen 
and was not in the record of proceedings for the USCIS Asylum Merits 
interview, that the noncitizen is not eligible for such protection(s), 
the IJ will issue the removal order and give effect to any protection 
for which the asylum officer found the noncitizen eligible, and no 
further proceedings will be held.\42\
---------------------------------------------------------------------------

    \42\ In addition, at 8 CFR 1240.17(d), the IFR provides that a 
noncitizen who fails to appear and who is ordered removed in 
absentia under section 240(b)(5)(A) of the INA, 8 U.S.C. 
1229a(b)(5)(A), will still receive the benefit of any protections 
from removal for which the asylum officer found that the noncitizen 
was eligible unless DHS makes a prima facie showing through evidence 
that specifically pertains to the noncitizen and that was not 
included in the record of proceedings for the USCIS Asylum Merits 
interview that the noncitizen is not eligible for such protection. 
Where USCIS has determined that an applicant is eligible for 
statutory withholding of removal or protection under the CAT, the 
United States would risk violating its nonrefoulement obligations by 
nonetheless removing the noncitizen to the country in which they 
more likely than not would be subject to persecution or torture due 
to the failure to appear. That would particularly be so if the 
noncitizen's failure to attend the hearing were due to 
misunderstanding, confusion, or a belief that no further steps were 
necessary to preserve the noncitizen's eligibility for statutory 
withholding of removal or protection under the CAT.
---------------------------------------------------------------------------

    Second, and alternatively, the noncitizen may contest the asylum 
officer's decision to not grant asylum, in which case the IJ will 
adjudicate de novo the noncitizen's application for asylum. See 8 CFR 
1240.17(i)(2). If the IJ subsequently denies asylum, then the IJ will 
enter an order of removal and give effect to the protections for which 
the asylum officer deemed the noncitizen eligible, unless DHS 
demonstrates through evidence or testimony that specifically pertains 
to the respondent and that was not included in the record of 
proceedings for the USCIS Asylum Merits interview that the noncitizen 
is not eligible for such protection. See id.\43\
---------------------------------------------------------------------------

    \43\ The Departments emphasize that the evidence or testimony 
relied upon by DHS to demonstrate that the noncitizen is not 
eligible for withholding of removal or protection under the CAT must 
be evidence or testimony not considered by the asylum officer that 
pertains specifically to the noncitizen and establishes that the 
noncitizen is not eligible. For example, DHS could submit 
information that arose from background checks conducted after the 
asylum officer interview, but DHS cannot point to a statement by the 
noncitizen in the Form I-213, Record of Deportable/Inadmissible 
Alien. The evidence or testimony must demonstrate the noncitizen's 
ineligibility for the protection that the asylum officer determined 
the noncitizen was eligible for. The IJ's decision must be based on 
such new evidence or testimony; the IJ may not reconsider the asylum 
officer's determination or deny eligibility based merely on 
disagreement with the asylum officer's conclusions or evaluation of 
the record before the asylum officer.

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[[Page 18106]]

    The Departments have determined that these changes are advisable 
for several reasons. First, after reviewing comments, the Departments 
have declined to adopt certain provisions proposed in the NPRM and 
instead have set forth that after an asylum officer does not grant 
asylum, an individual will be automatically referred to streamlined 
section 240 removal proceedings. Automatic referral to streamlined 
section 240 proceedings means that every noncitizen whose application 
is not approved by the asylum officer will have the opportunity to have 
their case reviewed by the IJ, without first affirmatively requesting 
review. During streamlined 240 proceedings, the noncitizen may elect to 
have the IJ adjudicate de novo the noncitizen's asylum application, and 
any protection claim for which the asylum officer found the noncitizen 
ineligible. At the same time, the rule recognizes that an asylum 
officer's determination that a noncitizen is eligible for protection 
should generally be given effect in the interest of efficiency and to 
ensure that the noncitizen is not returned to a country where an 
immigration official has already determined that the noncitizen may be 
persecuted or tortured.
    It is appropriate for USCIS to make eligibility determinations for 
statutory withholding of removal and protection under the CAT. As a 
threshold issue, applications for asylum, statutory withholding of 
removal, and protection under the CAT are all factually linked. While 
the legal standards and requirements differ among the forms of relief 
and protection, the relevant applications will substantially share the 
same set of operative facts that an asylum officer would have already 
elicited, including through evidence and testimony, in the 
nonadversarial proceeding. Moreover, asylum officers receive extensive 
training, and develop extensive expertise, in assessing claims and 
country conditions and are qualified to determine whether an applicant 
will face harm in the proposed country. See INA 235(b)(1)(E), 8 U.S.C. 
1225(b)(1)(E); 8 CFR 208.1(b). Asylum officers also receive training on 
standards and eligibility issues related to determinations for 
statutory withholding of removal and CAT protection in order to conduct 
credible fear screening interviews and make appropriate credible fear 
determinations under 8 CFR 208.30(e). See 8 CFR 208.1(b). Finally, 
statutory withholding of removal and protection under the CAT are 
nondiscretionary forms of protection, the granting of which is 
mandatory upon a showing of eligibility. See, e.g., Myrie, 855 F.3d at 
515-16; Benitez Ramos, 589 F.3d at 431. Because the asylum officer does 
not issue an order of removal under the IFR, it is appropriate to wait 
until the IJ enters the order of removal before giving effect to 
USCIS's statutory withholding of removal and CAT protection eligibility 
determinations. See Matter of I-S- & C-S-, 24 I&N Dec. at 433.
    Thus, this IFR recognizes that applications for discretionary and 
mandatory forms of protection will be reviewed by IJs. However, 
determinations that a noncitizen is eligible for a mandatory form of 
protection will be given effect by the IJs, unless DHS demonstrates, 
through new evidence specifically pertaining to the noncitizen, that 
the noncitizen is not eligible for such protection.
    Considering the comments received on the NPRM, the Departments 
recognize that this procedure is an intermediate approach between the 
NPRM and the commenters' suggestions described below in Section IV.D.6 
of this preamble. Whereas the NPRM would have allowed the IJ to sua 
sponte review the asylum officer's statutory withholding and CAT 
determinations, the IFR instead places the burden on DHS to 
demonstrate, with new evidence specific to the noncitizen, that the 
noncitizen is not eligible for such protections. The Departments have 
determined that this process is most efficient, given that there may be 
particular instances, such as evidence of fraud or criminal activity, 
where overturning the asylum officer's eligibility determination is 
justified. If the Departments provided no mechanism in these 
streamlined section 240 removal proceedings through which the asylum 
officer's eligibility determinations could be overturned, DHS would 
have to follow the procedures set forth in 8 CFR 208.17(d) and 
208.24(f) in instances where overturning the asylum officer's 
eligibility determinations is justified. Providing an exception where 
DHS demonstrates that evidence or testimony specifically pertaining to 
the noncitizen and not in the record of proceedings for the USCIS 
Asylum Merits interview establishes that the noncitizen is not eligible 
is substantially more efficient, consistent with the overall aims of 
this IFR.
6. Exceptions to Streamlined Procedures
    The IFR provides specific exceptions that will allow certain 
noncitizens or situations to be exempted from these streamlined 
procedures and timelines despite originating in the expedited removal 
process and being referred to immigration court following an asylum 
officer's initial adjudication. See 8 CFR 1240.17(k). These exceptions 
ensure procedural fairness because not all cases that might otherwise 
be placed in streamlined section 240 removal proceedings would in fact 
be suitable for the expedited timeline.
    At new 8 CFR 1240.17(k)(3), the IFR provides an exception to the 
expedited timeline if the noncitizen has raised a substantial challenge 
to the charge that the noncitizen is subject to removal--e.g., if the 
noncitizen has a claim to U.S. citizenship or the charge that the 
noncitizen is subject to removal is not supported by the record--and 
that challenge cannot be resolved simultaneously with the noncitizen's 
applications for asylum, statutory withholding of removal, or 
withholding or deferral of removal under the CAT.
    Because the IFR places noncitizens into section 240 proceedings, 
the noncitizen can affirmatively elect to apply for a wide range of 
relief in addition to asylum, statutory withholding of removal, and 
protection under the CAT. See, e.g., 8 CFR 1240.1(a)(1)(ii) (providing 
IJs with the authority to adjudicate a wide range of applications for 
relief); 8 CFR 1240.11(a)(2) (``The immigration judge shall inform the 
[noncitizen] of his or her apparent eligibility to apply for any of the 
benefits enumerated in this chapter and shall afford the [noncitizen] 
an opportunity to make application during the hearing . . . .''). The 
IFR therefore provides an exception to the timeline if the noncitizen 
produces evidence of prima facie eligibility for relief or protection 
other than asylum, statutory withholding of removal, withholding or 
deferral of removal under the CAT, or voluntary departure, and is 
seeking to apply for, or has applied for, such relief or protection. 
See 8 CFR 1240.17(k)(2). For example, a noncitizen who also is eligible 
to seek adjustment of status under section 245 of the Act, 8 U.S.C. 
1255, could provide the IJ with proof of prima facie eligibility and a 
copy of the submitted Form I-130, Petition for Alien Relative, and upon 
receipt of such evidence, the timeline in 8 CFR 1240.17(f)-(h) would 
not apply.\44\ Testimonial evidence, and

[[Page 18107]]

out-of-court written statements, could also be considered by 
immigration judges as evidence of prima facie eligibility for relief. 
The Departments believe this exception from the timeline is appropriate 
to allow effective adjudication of the new relief being sought because 
the IJ will not have the benefit of an already developed record 
regarding those forms of relief, which the IJ will have for the 
noncitizen's application for asylum or other protection.\45\
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    \44\ Although a submitted visa petition demonstrating prima 
facie eligibility for relief would be an optimal way to demonstrate 
qualification for this exception, there may exist circumstances in 
which a filed petition would not be possible to present on an 
expedited timeline due to factors outside of a noncitizen's control. 
For example, a complaint for custody and motion for Special 
Immigrant Juvenile classification (``SIJ'') findings, as filed with 
a State court, along with a statement and evidence as to other 
eligibility factors listed on the Form I-360, Petition for 
Amerasian, Widow(er), or Special Immigrant, could be sufficient to 
permit the IJ to assess a respondent's prima facie eligibility for 
SIJ classification.
    \45\ The Departments also note that this shift from the NPRM to 
streamlined section 240 removal proceedings addresses comments that 
the NPRM would have improperly burdened noncitizens by requiring 
them to file motions to vacate their removal orders and by limiting 
noncitizens to only one such motion. Further, by placing noncitizens 
into streamlined 240 proceedings--thereby allowing them to seek 
various forms of relief or protection for which they may be 
eligible--the IFR also addresses comments that the NPRM would have 
authorized the IJs to exercise discretion over whether to allow the 
respondent to apply for additional forms of relief or protection.
---------------------------------------------------------------------------

    Similarly, the IFR provides an exception where the IJ finds the 
noncitizen subject to removal to a different country from the country 
or countries in which the noncitizen claimed a fear of persecution and 
torture before the asylum officer, and the noncitizen claims a fear of 
persecution or torture with respect to that alternative country. See 8 
CFR 1240.17(k)(4). The Departments similarly believe the IFR's timeline 
should not apply in these circumstances because the record would need 
to be developed without the benefit of previous adjudication.
    The Departments have also considered the effect of the streamlined 
240 proceedings on vulnerable populations. To ensure procedural 
fairness, the Departments will exempt the following categories of 
noncitizens from these procedures: Noncitizens under the age of 18 on 
the date the NTA was issued, except noncitizens in section 240 
proceedings with an adult family member, 8 CFR 1240.17(k)(1); and 
noncitizens who have exhibited indicia of mental incompetency, 8 CFR 
1240.17(k)(6).
    Finally, the expedited timeline does not apply to cases that have 
been reopened or remanded following the IJ's order. 8 CFR 
1240.17(k)(5). Reopened and remanded cases may present unique issues 
that are outside of the scope of these streamlined 240 proceedings.

E. Other Amendments Related to Credible Fear

    In addition to the new procedures at 8 CFR 1240.17, this IFR amends 
8 CFR 1003.42, 1208.2, 1208.3, 1208.4, 1208.5, 1208.14, 1208.16, 
1208.18, 1208.19, 1208.22, 1208.30, and 1235.6. Except for the 
amendments at 8 CFR 1003.42, the Departments proposed amendments to all 
of these sections in the NPRM in order to: (1) Effectuate the 
reestablishment of the ``significant possibility'' standard in credible 
fear review proceedings before EOIR; (2) ensure that IJs, like asylum 
officers, do not apply the mandatory bars at the credible fear 
screening process; and (3) ensure that the provisions providing for the 
USCIS Asylum Merits process are accurately reflected in EOIR's 
regulations where relevant, including confirmation that the written 
record of the positive credible fear determination will count as an 
asylum application. The IFR adopts these same changes with limited 
technical amendments where necessary to accord with the streamlined 
section 240 proceedings under new 8 CFR 1240.17.
    The Departments also include amendments to 8 CFR 1003.42(d)(1) in 
this IFR. Although these amendments were not included in the NPRM, they 
are direct corollaries of the NPRM's proposed amendments and are 
necessary to ensure consistency, both internally within DOJ's 
regulatory provisions and more broadly between DHS's and DOJ's 
regulations. Specifically, the IFR amends 8 CFR 1003.42(d)(1) to ensure 
consistency with the revisions to 8 CFR 208.30(e) related to credible 
fear screening standards and treatment of mandatory bars in the 
credible fear screening process and with the revisions to 8 CFR 
1208.30(g)(2) so that both provisions properly direct that when an IJ 
vacates a negative credible fear finding, the IJ will refer the case 
back to USCIS as intended by the NPRM and the IFR.

F. Parole

    This rule amends the DHS regulations governing the circumstances in 
which parole may be considered for individuals who are being processed 
under the expedited removal provisions of INA 235(b)(1), 8 U.S.C. 
1225(b)(1). Expedited removal is a procedure that applies when an 
immigration officer ``determines'' that a noncitizen ``arriving in the 
United States,'' or a noncitizen covered by a designation who has not 
been admitted or paroled into the United States, is inadmissible under 
either INA 212(a)(6)(C), 8 U.S.C. 1182(a)(6)(C) (fraud or 
misrepresentation), or INA 212(a)(7), 8 U.S.C. 1182(a)(7) (lack of 
proper documents), and further determines that the noncitizen should be 
placed in expedited removal. INA 235(b)(1)(A)(i), (iii), 8 U.S.C. 
1225(b)(1)(A)(i), (iii). Other noncitizens who are applicants for 
admission--and whom an immigration officer determines are not clearly 
and beyond a doubt entitled to be admitted--generally are referred for 
ordinary removal proceedings under INA 240, 8 U.S.C. 1229a. See INA 
235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A).
    The statute generally provides for the detention of noncitizens 
subject to expedited removal pending a final credible fear 
determination and, if no such fear is found, until removed. See INA 
235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (noncitizens in 
the expedited removal process ``shall be detained pending a final 
determination of credible fear of persecution and, if found not to have 
such a fear, until removed''). The statute, likewise, provides that 
noncitizens determined to have a credible fear ``shall be detained for 
further consideration of the application for asylum.'' INA 
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). Congress has, however, 
expressly granted DHS the authority to release any applicant for 
admission from detention via parole ``on a case-by-case basis for 
urgent humanitarian reasons or significant public benefit.'' INA 
212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). This includes DHS's authority to 
parole noncitizens detained under section 235 of the Act, 8 U.S.C. 
1225. See Jennings v. Rodriguez, 138 S. Ct. 830, 837, 844 (2018).
    The NPRM proposed to replace the current narrow parole standard 
with a standard that would permit parole ``only when DHS determines, in 
the exercise of discretion, that parole is required to meet a medical 
emergency, for a legitimate law enforcement objective, or because 
detention is unavailable or impracticable (including situations in 
which continued detention would unduly impact the health or safety of 
individuals with special vulnerabilities).'' 86 FR 46946 (8 CFR 
235.3(b)(2)(iii) (proposed)); see id. at 46913-14. Having considered 
all comments received on this issue, DHS has determined that the 
current narrow standard should be replaced not with the standard 
proposed in the NPRM but with the longstanding parole standard 
applicable in other circumstances and described in 8 CFR 212.5(b), with 
which DHS officers and agents have substantial experience. That 
provision describes

[[Page 18108]]

five categories of certain noncitizens detained under 8 U.S.C. 1225(b) 
who may meet the parole standard of INA 212(d)(5), 8 U.S.C. 1182(d)(5), 
provided they present neither a security risk nor a risk of absconding: 
(1) Noncitizens who have serious medical conditions such that continued 
detention would not be appropriate; (2) women who have been medically 
certified as pregnant; (3) certain juveniles; (4) noncitizens who will 
be witnesses in proceedings conducted by judicial, administrative, or 
legislative bodies in the United States; and (5) noncitizens whose 
continued detention is not in the public interest. See 8 CFR 
212.5(b)(1)-(5). Consistent with the statute and the regulation, DHS 
will consider noncitizens covered by this rule for parole under this 
standard pending their credible fear interview ``only on a case-by-case 
basis,'' 8 CFR 212.5(b), and may impose reasonable conditions on parole 
(including, for example, periodic reporting to ICE) to ensure that the 
noncitizen will appear at all hearings and for removal from the United 
States if required to do so, 8 CFR 212.5(c)-(d); see INA 212(d)(5)(A), 
8 U.S.C. 1182(d)(5)(A).
    For purposes of making these case-by-case determinations concerning 
parole of noncitizens pending a credible fear interview, the Secretary 
recognizes that, in circumstances where DHS has determined that the 
continued detention of a noncitizen who has been found not to be a 
flight risk or a danger to the community is not in the public interest, 
the release of that noncitizen on parole may serve ``urgent 
humanitarian reasons'' or achieve ``significant public benefit.'' INA 
212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); see 8 CFR 212.5(b)(5).
    The INA does not define these ambiguous terms, leaving them to the 
agency's reasonable construction.\46\ In implementing the statutory 
parole authority, DHS and the former INS have long interpreted the 
statute to permit parole of noncitizens whose continued detention is 
not in the public interest as determined by specific agency officials. 
Specifically, prior to the 1996 amendment to the INA that provided for 
parole ``on a case-by-case basis for urgent humanitarian reasons or 
significant public benefit,'' Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (``IIRIRA''), Pub. L. 104-208, div. C, tit. 
VI, subtit. A, sec. 602, 110 Stat. 3009, 3009-689, the former INS had 
paroled individuals ``whose continued detention'' was ``not in the 
public interest,'' 8 CFR 212.5(b)(5) (1995); see Detention and Parole 
of Inadmissible Aliens; Interim Rule With Request for Comments, 47 FR 
30044, 30045 (July 9, 1982) (interim rule). After the 1996 amendment, 
the agency incorporated the new ``case-by-case'' requirement into its 
regulation, while also providing, similar to prior regulatory 
authority, that parole of certain noncitizens, including those who pose 
neither a security risk nor a risk of absconding and whose ``continued 
detention is not in the public interest'' would generally be justified 
for ``significant public benefit'' or ``urgent humanitarian reasons,'' 
consistent with the 1996 statutory amendment. 62 FR 10348; see id. at 
10313.
---------------------------------------------------------------------------

    \46\ See INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3); see also 
Nat'l Cable & Telecomms. Ass'n v. Brand X internet Servs., 545 U.S. 
967, 980 (2005) (``If a statute is ambiguous, and if the 
implementing agency's construction is reasonable, Chevron requires a 
federal court to accept the agency's construction of the statute, 
even if agency's reading differs from what the court believes is the 
best statutory interpretation.'' (citing Chevron, 467 U.S. at 843-
44)); Garfias-Rodriguez v. Holder, 702 F.3d 504, 515 (9th Cir. 2012) 
(en banc) (``We defer to an agency not because it is better situated 
to interpret statutes, but because we have determined that Congress 
created gaps in the statutory scheme that cannot be filled through 
interpretation alone, but require the exercise of policymaking 
judgment.'' (citing Chevron, 467 U.S. at 865)); cf., e.g., Ibragimov 
v. Gonzales, 476 F.3d 125, 137 n.17 (2d Cir. 2007) (deferring to 
another aspect of 8 CFR 212.5).
---------------------------------------------------------------------------

    Nothing in INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), prohibits DHS 
from considering its resources and detention capacity when it 
determines, on a case-by-case basis, whether the parole of a noncitizen 
otherwise subject to detention under INA 235(b), 8 U.S.C. 1225(b), 
would have a significant public benefit or would advance urgent 
humanitarian reasons.\47\ Rather, consistent with the statute, 8 CFR 
212.5, and longstanding practice, DHS may take into account the 
important prerogative for it to use its detention resources for other 
individuals whose detention is in the public interest, including 
because of public safety or national security reasons. As has been the 
case for decades, DHS views detention as not being in the public 
interest where, in light of available detention resources, and 
considered on a case-by-case basis, detention of any particular 
noncitizen would limit the agency's ability to detain other noncitizens 
whose release may pose a greater risk of flight or danger to the 
community.\48\ With regard to noncitizens detained pending a credible 
fear interview, whose inadmissibility was still being considered, or 
who had been ordered removed in expedited removal proceedings, the 
former INS, in a 1997 rule, restricted the regulatory authority for 
release on parole to where parole is required for a ``medical 
emergency'' or ``a legitimate law enforcement objective.'' 8 CFR 
235.3(b)(2)(iii), (b)(4)(ii) (current); see 62 FR 10356. As the NPRM 
explained, this current narrow standard effectively prevents DHS from 
placing into expedited removal many noncitizens who would otherwise be 
eligible for this process, especially families, given the practical 
constraints and the legal limits of the Flores Settlement Agreement 
(``FSA'').\49\ See 86 FR 46910. These restrictions on DHS's ability to 
detain families in significant numbers and for an appreciable length of 
time, coupled with capacity constraints imposed by the COVID-19 
pandemic, have effectively prevented the Government from processing 
more than a very limited number of families under expedited removal. 
Amending the regulation by which the former INS previously constrained 
itself (and now DHS) to considering parole for noncitizens in the 
expedited removal process far more narrowly than what the statute 
authorizes will advance the significant public benefit of allowing DHS 
to place more eligible noncitizens, particularly noncitizen families, 
in

[[Page 18109]]

expedited removal proceedings, rather than processing them through 
lengthy and backlogged ordinary section 240 removal proceedings.
---------------------------------------------------------------------------

    \47\ See, e.g., New Mexico v. McAleenan, 450 F. Supp. 3d 1130, 
1174 n.5 (D. N.M. 2020) (``This vague [`significant public benefit'] 
standard [in INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A)] conceivably 
encompasses a wide range of public benefits, such as conserving 
resources otherwise spent on housing asylum seekers . . . .'').
    \48\ See, e.g., ICE, Interim Guidance for Implementation of 
Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) During the Stay of the 
Modified Nationwide Preliminary Injunction in Padilla v. ICE, No. 
18-298, 2019 WL 2766720 (W.D. Wash. July 2, 2019): Parole of Aliens 
Who Entered Without Inspection, Were Subject to Expedited Removal, 
and Were Found to Have a Credible Fear of Persecution or Torture 
(July 15, 2019); Memorandum from DHS Secretary John Kelly, 
Implementing the President's Border Security and Immigration 
Enforcement Improvement Policies 3 (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-Presidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf; Memorandum from Gene McNary, 
INS Commissioner, Parole Project for Asylum Seekers at Ports of 
Entry and INS Detention 1 (Apr. 20, 1992).
    \49\ Stipulated Settlement Agreement, Flores v. Reno, No. 85-cv-
4544 (C.D. Cal. Jan. 17, 1997); see also 86 FR 46910 & n.27 
(describing the FSA). The FSA provides for a general policy favoring 
release of minors and requires the expeditious transfer of minors 
who are not released from custody, including minors accompanied by 
their parents or legal guardians, to a non-secure, state-licensed 
program. See FSA ]] 6, 12, 14, 19. When the former ICE family 
residential centers were operational, the court determined that such 
facilities were secure, unlicensed facilities; therefore, DHS 
generally released noncitizen children detained during their 
immigration proceedings within 20 days. See Flores v. Sessions, 394 
F. Supp. 3d 1041, 1070-71 (C.D. Cal. 2017).
---------------------------------------------------------------------------

    This approach will allow DHS to more efficiently obtain orders of 
removal for families who do not raise a fear claim or who are found not 
to possess a credible fear, thereby facilitating their expeditious 
removal without the need for lengthy immigration court proceedings, and 
will allow other families to have their fear claims adjudicated in a 
more timely manner. Accordingly, the flexibility of the 8 CFR 212.5(b) 
standard--subject, of course, to the limitations on the parole 
authority contained in INA 212(d)(5), 8 U.S.C. 1182(d)(5)--will allow 
DHS to achieve the significant public benefits of more effectively 
utilizing the expedited removal authority in response to changing 
circumstances and promoting border security. DHS expects that expedited 
removal of families who do not make a fear claim, or who are determined 
not to have a credible fear of persecution or torture, will reduce the 
incentives for abuse by those who will not qualify for protection and 
smugglers who exploit the processing delays that result from ordinary 
removal backlogs.
    Finally, the contours of the category of noncitizens ``whose 
continued detention is not in the public interest,'' 8 CFR 212.5(b)(5), 
have been developed through directives and guidance. For example, in 
2009 ICE issued guidance stating that ``when an arriving alien found to 
have a credible fear establishes to the satisfaction of [ICE Detention 
and Removal Operations (DRO)] his or her identity and that he or she 
presents neither a flight risk nor danger to the community, DRO should, 
absent additional factors (as described [later in the directive]), 
parole the alien on the basis that his or her continued detention is 
not in the public interest.'' ICE Policy No. 11002.1 ] 6.2, Parole of 
Arriving Aliens Found to Have a Credible Fear of Persecution or Torture 
(Dec. 8, 2009), https://www.ice.gov/doclib/dro/pdf/11002.1-hd-parole_of_arriving_aliens_found_credible_fear.pdf. DHS intends to use 
further directives and guidance to apply the parole standard to 
noncitizens in expedited removal pending a credible fear interview. DHS 
emphasizes that any such directives or guidance will account for the 
fact that there are important and relevant differences between the 
population of noncitizens who have received a positive credible fear 
determination and the population of noncitizens in expedited removal 
who have not received a credible fear determination, including the 
expected length of time before such an individual may be ordered 
removed and considerations relevant to assessing flight risk.

G. Putative Reliance Interests

    In responses to comments below, the Departments have addressed the 
reliance interests in the status quo asserted by commenters. See FCC v. 
Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (requiring 
agencies to consider ``serious reliance interests'' when changing 
policies); see also Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222 
(2016) (referring to ``significant'' and ``serious'' reliance interests 
(quotation marks omitted)). The governmental commenters do not appear 
to have identified any reliance interests. Although some commenters 
identified what they believed would be burdens on or injuries to State, 
county, and local governments as a result of the proposed rule--claims 
that are addressed in the Departments' responses to comments--none 
clearly identified any significant reliance interests in the current 
state of affairs.
    The Departments perceive no serious reliance interests on the part 
of any State, county, or local governmental entity in the currently 
existing provisions the NPRM implicated or that are affected by this 
IFR. Even if such reliance interests exist, the Departments would 
nevertheless promulgate this regulation for the reasons stated in this 
rule.

IV. Response to Public Comments on the Proposed Rule

A. Summary of Public Comments

    In response to the proposed rule, the Departments received 5,235 
comments during the 60-day public comment period. Approximately 1,347 
of the comments were letters submitted through mass mailing campaigns, 
and 3,790 comments were unique submissions. Primarily, individuals and 
anonymous entities submitted comments, as did multiple State Attorneys 
General, legal service providers, advocacy groups, attorneys, religious 
and community organizations, elected officials, and research and 
educational institutions, among others.
    Comments received during the 60-day comment period are organized by 
topic below. The Departments reviewed the public comments received in 
response to the proposed rule and address relevant comments in this 
IFR, grouped by subject area. The Departments do not address comments 
seeking changes in U.S. laws, regulations, or agency policies that are 
unrelated to the changes to made by this rule. This IFR does not 
resolve issues outside the scope of this rulemaking. A brief summary of 
comments the Departments deemed to be out of scope or unrelated to this 
rulemaking, making a substantive response unnecessary, is provided at 
the end of the section. Comments may be reviewed at https://www.regulations.gov, docket number USCIS-2021-0012.
    Following careful consideration of public comments received, the 
Departments in this IFR have made modifications to the regulatory text 
proposed in the NPRM. The rationale for the proposed rule and the 
reasoning provided in the background section of that rule remain valid 
with respect to those regulatory amendments, except where a new or 
supplemental rationale is reflected in this IFR. As a general matter, 
the Departments believe that the IFR addresses concerns expressed by a 
majority of those who commented on the NPRM's proposed IJ review 
procedure by establishing that where the asylum officer denies a 
noncitizen's application for asylum, that noncitizen will be placed 
into streamlined section 240 proceedings, rather than the alternative 
procedure proposed in the NPRM. While the Departments found a number of 
the concerns raised by commenters to be persuasive in making this 
change, general statements that the IFR addresses commenters' concerns 
should not be read to mean that the Departments have adopted or agree 
with commenters' reasoning in whole or in part.
    The Departments welcome comments on the IFR's revisions that are 
submitted in accordance with the instructions for public participation 
in Section I of this preamble. Among other topics, the Departments 
invite comment on the procedures for streamlined section 240 
proceedings and whether any further changes to those procedures would 
be appropriate.

B. General Feedback on the Proposed Rule

1. General Support for the Proposed Rule
a. Immigration Policy Benefits
    Comments: Several commenters supported the proposed rule on the 
basis of immigration policy benefits, including: Reducing duplication 
of effort between USCIS asylum officers and IJs by allowing asylum 
officers to adjudicate claims that originated through the USCIS-
administered credible fear screening process with less or no 
expenditure of immigration court time or resources; improving the 
process to better serve traumatized populations;

[[Page 18110]]

expediting the asylum application process and allowing covered asylum 
seekers to receive protection sooner; making the asylum application 
process more efficient and fair; helping to better manage migrant flows 
and increase security at the Southwest border; and providing due 
process, dignity, and equity within the system.
    Response: The Departments acknowledge the commenters' support for 
the rule.
b. Positive Impacts on Applicants, Their Support Systems, and the 
Economy
    Comments: A few commenters supported the proposed rule, without 
substantive rationale, on the basis of positive impacts on applicants, 
their support systems, and the U.S. economy. Some commenters supported 
the proposed rule and expressed gratitude for helping people who are in 
fear for their lives and encouraged facilitating a smoother pathway for 
noncitizens once they get through the initial process successfully. 
Another commenter stated that the rule represents a fundamental shift 
that will help eligible asylum applicants receive humanitarian 
protection and not keep asylum seekers in limbo for years while 
awaiting a final status determination. An individual commenter 
supporting the rule wrote that asylum seekers who have received a 
positive credible fear determination may be able to enter the labor 
force sooner. According to this commenter, enabling earlier access to 
employment for asylum-eligible individuals could reduce the public 
burden, reduce the burden on the asylum support network, and benefit 
those asylum seekers in terms of equity, human dignity, and fairness.
    Response: The Departments acknowledge these commenters' support for 
the rule and agree the rule will benefit asylum seekers and their 
support systems, including public entities.
2. General Opposition to the Proposed Rule
a. Immigration Policy Concerns
    Comments: Many commenters expressed general opposition to the rule 
out of a belief that this Administration is not committed to enforcing 
U.S. immigration law or deterring unauthorized migration into the 
United States, or out of a belief that the Administration intends to 
drive more irregular migration for political reasons. Several of these 
commenters pointed to the high numbers of Southwest border encounters 
that have occurred in 2021 as support for their beliefs.
    Response: The Departments acknowledge the commenters' frustration 
with the high rates of unauthorized entry into the United States 
between ports of entry on the Southwest border in 2021, a continuation 
of an increase that has been observed since April 2020.\50\ However, 
the Departments disagree with the commenters' suggestion that the high 
numbers of border encounters imply either that the Administration 
supports or is indifferent to such unauthorized entries. To the 
contrary, maintaining an orderly, secure, and well-managed border and 
reducing irregular migration are priorities for the Departments and for 
the Administration. The Fiscal Year (``FY'') 2022 President's Budget 
directs resources toward robust investments in border security and 
safety measures, including border technology and modernization of land 
ports of entry. See DHS, FY 2022 Budget in Brief 1-2, https://www.dhs.gov/sites/default/files/publications/dhs_bib_-_web_version_-_final_508.pdf. Under this Administration, the United States has also 
bolstered public messaging discouraging irregular migration and 
strengthened anti-smuggling and anti-trafficking operations, while at 
the same time investing in Central America to address the lack of 
economic opportunity, weak governance and corruption, and violence and 
insecurity that lead people to leave their homes in the first place and 
attempt the dangerous journey to our Southwest border. See Press 
Release, The White House, FACT SHEET: The Biden Administration 
Blueprint for a Fair, Orderly and Humane Immigration System (July 27, 
2021) https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/27/fact-sheet-the-biden-administration-blueprint-for-a-fair-orderly-and-humane-immigration-system/ (last visited Mar. 14, 2022). 
The Departments emphasize that the COVID-19 pandemic and associated 
economic downturn, along with two severe hurricanes that together 
impacted Nicaragua, Honduras, Guatemala, and El Salvador in November 
2020, have added to those longstanding problems. See DHS, Statement by 
Homeland Security Secretary Alejandro N. Mayorkas Regarding the 
Situation at the Southwest Border (Mar. 16, 2021), https://www.dhs.gov/news/2021/03/16/statement-homeland-security-secretary-alejandro-n-mayorkas-regarding-situation; USAID, Latin American Storms--Fact Sheet 
#1, (FY) 2021 (Nov. 19, 2020), https://www.usaid.gov/crisis/hurricanes-iota-eta/fy21/fs1 (last visited Mar. 14, 2022). Finally, 
misinformation--including the false message that our borders are 
``open''--has also driven irregular migration. See DHS, Secretary 
Mayorkas Delivers Remarks in Del Rio, TX (Sep. 20, 2021), https://www.dhs.gov/news/2021/09/20/secretary-mayorkas-delivers-remarks-del-
rio-tx. The Departments reiterate that the borders of the United States 
are not open and that individuals should not put their own lives or the 
lives of their family members in the hands of smugglers or other 
criminals who represent otherwise.
---------------------------------------------------------------------------

    \50\ See U.S. Customs and Border Protection (``CBP''), Southwest 
Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters.
---------------------------------------------------------------------------

    Comments: Many commenters generally opposed the rule due to 
concerns that USCIS asylum officers would be more likely than IJs to 
grant asylum or other protection to individuals who should not be 
eligible for it or to otherwise ``loosen'' the requirements for asylum 
eligibility. Some commenters expressed, without providing details, that 
IJs are better trained, better qualified, or better equipped to ``vet'' 
applicants or detect fraudulent claims. Other commenters explained that 
they were concerned USCIS asylum officers would not apply the law or 
would not serve as impartial adjudicators. Commenters based this 
concern on at least two different rationales. Some commenters reasoned 
that asylum officers were subject to greater political control than 
IJs; other commenters reasoned that asylum officers are too 
``unaccountable'' to the public. Finally, a few commenters expressed 
concern about USCIS being ``fee-driven'' and that having a ``fee-
driven'' agency control the credible fear process removes it from 
congressional oversight.
    While most comments that disapproved of authorizing asylum officers 
to adjudicate defensive asylum applications urged the Departments to 
continue to require that IJs within EOIR adjudicate all such 
applications, some comments urged that ``Federal judges'' or 
immigration judges ``appointed by the judicial branch'' should be hired 
to quickly and impartially adjudicate asylum claims.
    Response: The Departments disagree with the assertion that USCIS 
asylum officers cannot appropriately vet or determine eligibility for 
protection. Asylum officers are career Government employees selected 
based on merit, they receive extensive training, and they possess 
expertise in determining eligibility for protection. See INA 
235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E); 8 CFR 208.1(b); see, e.g., 
USAJOBS,

[[Page 18111]]

Asylum Officer, https://www.usajobs.gov/job/632962200 (last visited 
Mar. 14, 2022) (specifying that asylum officers are members of the 
competitive service); see also 22 U.S.C. 6473(b) (requisite training on 
religious persecution claims). USCIS asylum officers must undergo 
``special training in international human rights law, nonadversarial 
interview techniques, and other relevant national and international 
refugee laws and principles.'' 8 CFR 208.1(b); see also INA 
235(b)(1)(E)(i), 8 U.S.C. 1225(b)(1)(E)(i) (requiring that asylum 
officers have ``professional training in country conditions, asylum 
law, and interview techniques''). While IJs handle a broad swath of 
immigration-related matters, USCIS asylum officers are uniquely trained 
to adjudicate protection claims. Additionally, USCIS asylum officers 
have dedicated resources available to them to address fraud concerns, 
including Fraud Detection and National Security (``FDNS'') officers 
embedded within the USCIS Asylum Division.\51\ FDNS employs numerous 
measures to detect and deter immigration benefit fraud and aggressively 
pursues benefit fraud cases in collaboration with USCIS adjudication 
officers and Federal law enforcement agencies. Since 2004, FDNS and ICE 
have collaborated in a strategic partnership to combat immigration 
fraud. FDNS officers work closely with law enforcement and intelligence 
community partners to resolve potential fraud, national security, and 
public safety concerns and to ensure the mutual exchange of current and 
comprehensive information. They conduct administrative investigations 
into suspected benefit fraud and aid in the resolution of national 
security or criminal concerns. Administrative investigations may 
include compliance reviews, interviews, site visits, and requests for 
evidence, and they may also result in a referral to ICE for 
consideration of a criminal investigation. Determining asylum 
eligibility and vetting is already a necessary part of the day-to-day 
work of a USCIS asylum officer and will continue to be so after this 
rule takes effect. Regardless of whether it is an IJ or an asylum 
officer who adjudicates an application, no individual may be granted 
asylum or withholding of removal until certain vetting and identity 
checks have been made. INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i); 
8 CFR 208.14(b), 1003.47. The Departments believe that commenters' 
concerns about USCIS having a financial incentive to ``rubber-stamp'' 
grant applications for asylum or lacking congressional oversight 
because it is primarily fee-funded are likewise misplaced. USCIS 
adjudicates asylum applications without charge, see 86 FR 46922, and is 
subject to congressional oversight.
---------------------------------------------------------------------------

    \51\ See USCIS, Fraud Detection and National Security 
Directorate, https://www.uscis.gov/about-us/directorates-and-program-offices/fraud-detection-and-national-security-directorate.
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    Moreover, EOIR is currently burdened with a heavy case backlog, as 
described in the NPRM. Notably, EOIR's caseload includes a wide range 
of immigration and removal cases. See EOIR Policy Manual, Part 
II.1.4(a) (updated Dec. 30, 2020), https://www.justice.gov/eoir/eoir-policy-manual (``EOIR Policy Manual''). Allowing USCIS to take on cases 
originating in the credible fear process therefore is expected to 
reduce delays across all of EOIR's dockets, as well as reducing the 
time it takes to adjudicate these protection claims. The Departments 
believe that alleviating immigration court caseloads through the fair, 
efficient process articulated in this rule is a positive step forward. 
Suggestions asking for additional Federal judges within the judicial 
branch to handle the influx of asylum and protection-related cases 
should be directed to Congress.
    Comments: Many commenters generally opposed the rule on the ground 
that a higher-priority or better way to address the overwhelmed U.S. 
asylum system would be to ``regain control'' over who enters the 
country by ``tak[ing] steps to significantly reduce the number of 
people flowing across the border'' and by not releasing individuals who 
have entered the United States without inspection or parole.
    Response: The Departments acknowledge concerns raised by the 
commenters and note that this rulemaking is one part of a multifaceted 
whole-of-government approach to addressing irregular migration and 
ensuring that the U.S. asylum system is fair, orderly, and humane. This 
whole-of-government approach seeks to make better use of existing 
enforcement resources by investing in border security measures that 
will facilitate greater effectiveness in combatting human smuggling and 
trafficking and addressing the entry of undocumented migrants. The 
United States also is working with governments of nearby countries to 
facilitate secure management of borders in the region and to 
investigate and prosecute organizations involved in criminal 
smuggling.\52\ These and other efforts to address irregular migration 
are beyond the scope of this rule, which specifically concerns the 
procedures by which individuals who are encountered near the border and 
placed into expedited removal will receive consideration of their 
claims for asylum or other protection, as is required by law. INA 
235(b)(1), 8 U.S.C. 1225(b)(1). However, to the extent that the 
significant delays in the adjudication of asylum claims today 
contribute to rates of irregular migration, the Departments believe 
that the efficiencies introduced by the rule will help to reduce any 
incentive to exploit the system and enhance the Government's efforts to 
address irregular migration. By limiting the amount of time a 
noncitizen may remain in the United States while a claim for relief or 
protection is pending, the rule stands to dramatically reduce potential 
incentives for noncitizens to make false claims for relief and 
protection.
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    \52\ See Press Release, The White House, FACT SHEET: The Biden 
Administration Blueprint for a Fair, Orderly and Humane Immigration 
System (July 27, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/27/fact-sheet-the-biden-administration-blueprint-for-a-fair-orderly-and-humane-immigration-system/ (last 
visited Mar. 14, 2022).
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    Finally, the Departments emphasize that individuals who have 
entered the United States without inspection or parole and who are 
subsequently encountered and placed into expedited removal are 
presumptively detained, as the statute provides that such individuals 
are subject to mandatory detention. See INA 235(b)(1)(B)(ii), 
(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(ii), (iii)(IV). Such individuals may 
be released on parole only in accordance with the statutory and 
regulatory standards. See INA 212(d)(5), 8 U.S.C. 1182(d)(5); 8 CFR 
212.5, 235.3(b)(2)(iii), (b)(4)(ii).
    Comments: Many commenters generally opposed the rule on the ground 
that allowing USCIS to adjudicate the merits of asylum claims through a 
nonadversarial process would ``take away the rights of the American 
people to be represented in court when migrants seek benefits that 
would place them on the path to citizenship'' or ``remov[e] . . . 
safeguards that are meant to protect the American population.'' 
Commenters asserted that allowing asylum claims to be adjudicated 
without a DHS attorney cross-examining the applicant and having the 
opportunity to offer impeachment evidence would give fewer rights to 
the American people, while the noncitizen applicant would

[[Page 18112]]

still have the opportunity to be represented by counsel.
    Response: The Departments do not agree with the premise of 
commenters' assertions. A nonadversarial process does not take away the 
rights of the American people, but rather it allows for the 
presentation and consideration of asylum and other protection claims in 
a manner that is fair and efficient. Asylum officers are Government 
officials who are well-trained in making credibility determinations and 
assessing evidence. The asylum officer position is a specialized 
position focusing on asylum and related relief and protection from 
removal; as explained in Section III.B of this preamble, asylum 
officers already adjudicate affirmative asylum claims through a 
nonadversarial process. An asylum officer can consider evidence 
relevant to an applicant's claim, including evidence that might be 
introduced as impeachment evidence in immigration court, and an asylum 
officer, where appropriate, can ask the applicant questions similar to 
those that a DHS attorney might ask in immigration court during a 
cross-examination. The Departments believe that the American public is 
better served if claims for asylum or related protection that originate 
through the credible fear screening process may be adjudicated--fairly 
and efficiently--not only within section 240 proceedings before IJs but 
also by asylum officers who specialize in such claims.
    Comment: Several commenters generally opposed the rule out of a 
belief that it is being promulgated solely for the purpose of providing 
asylum or other immigration benefits faster or through an easier 
procedure and is thereby putting the interests of migrants ahead of the 
interests of U.S. persons or of the public interest.
    Response: The Departments disagree with the view that the rule is 
not in the public interest. Rather, providing a process through which 
vulnerable populations may seek protection is the means by which the 
United States meets its obligations under both U.S. and international 
law. See Refugee Protocol, 19 U.S.T. 6223; INA 208, 241(b)(3), 8 U.S.C. 
1158, 1231(b)(3); FARRA sec. 2242. Amending the existing process to 
allow adjudications--both those that end in grants and those that end 
in denials--to be made more promptly, while maintaining fundamental 
fairness, is a change that is in the public interest. For decades, U.S. 
law has protected vulnerable populations from return to a country where 
they would be persecuted or tortured. See, e.g., INS v. Cardoza-
Fonseca, 480 U.S. 421, 424 (1987) (observing that the Refugee Act of 
1980 established ``a broad class of refugees who are eligible for a 
discretionary grant of asylum, and a narrower class of aliens who are 
given a statutory right not to be deported to the country where they 
are in danger''); FARRA sec. 2242 (legislation implementing U.S. 
obligations under Article 3 of the CAT not to remove noncitizens to any 
country where there are substantial grounds for believing the person 
would be in danger of being subjected to torture). Ensuring that the 
Departments uphold these American values as enshrined in U.S. law is in 
the national interest. It is also in the public interest that the 
procedures by which the Departments administer the law and uphold these 
values not regularly result in years-long delays, which may be 
detrimental to both the U.S. public and those seeking protection. 
Efficient processing of cases is in the public interest, as cases that 
span years can consume substantially greater Government resources, 
including by contributing to delays in immigration court proceedings 
that hinder DHS's ability to swiftly secure the removal of noncitizens 
who are high priorities for removal. The process created by this rule 
therefore advances the public interest by authorizing the Departments 
to employ a fair and efficient procedure for individuals to seek 
protection as an appropriate alternative to the exclusive use of 
section 240 proceedings and by reducing immigration court backlogs that 
are detrimental to the public interest.
    Comments: Some commenters generally opposed the rule on the ground 
that it allows noncitizens to seek review of any denial of asylum or 
other protection but does not allow an opportunity for correcting or 
reviewing erroneous grants of asylum or other protection.
    Response: The Departments acknowledge the concern regarding error 
correction when asylum or other protection is granted, but the 
Departments believe this concern is addressed by existing statutory and 
regulatory provisions, as well as by DHS's longstanding practices 
regarding the supervision of asylum officers. To reiterate those 
longstanding supervision practices, the Departments have revised 8 CFR 
208.14(b) and (c) and, correspondingly, 8 CFR 1208.14(b) and (c), to 
emphasize that asylum officers' decisions on approval, denial, 
dismissal, or referral of an asylum application remain subject to 
review within USCIS.
    As noted above, the Secretary of Homeland Security is charged with 
the administration and enforcement of the immigration laws and has the 
control, direction, and supervision of all employees and of all the 
files and records of USCIS. See INA 103(a)(1), (2), 8 U.S.C. 
1103(a)(1), (2). Further, the asylum statute vests the Secretary of 
Homeland Security with the authority to grant asylum. See INA 
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). The Secretary's broad authority 
includes the authority to review and modify immigration benefit 
decisions, including grants of asylum. Such authority has been 
delegated to the Director of USCIS. See DHS, Delegation to the Bureau 
of Citizenship and Immigration Services, No. 0150.1 (June 5, 2003); see 
also 8 CFR 2.1. Further, USCIS retains authority under this delegation 
to reopen or reconsider decisions (including asylum decisions) at any 
time on the agency's own motion, based upon any new facts or legal 
determinations. See 8 CFR 103.5(a)(5). Nothing in this IFR in any way 
detracts from or diminishes the authority and responsibility of the 
Secretary of Homeland Security and the Director of USCIS over any grant 
of asylum that is issued by USCIS.
    Beyond these statutory and regulatory provisions, 100 percent of 
USCIS asylum officers' approvals, denials, referrals, or dismissals of 
an asylum application are currently subject to supervisory review 
before a final decision is made and served on the applicant. See 
Memorandum from Andrew Davidson, Chief, Asylum Div., USCIS, 
Modifications to Supervisory Review of Affirmative Asylum Cases (Mar. 
31, 2021). The decision of the asylum officer on whether or not to 
grant asylum undergoes review by a supervisor, and may be further 
reviewed as USCIS deems appropriate, before finalization and service on 
the applicant. Id. The Departments have revised 8 CFR 208.14(b) and 
(c), and made corresponding revisions to 8 CFR 1208.14(b) and (c), to 
emphasize these longstanding review practices. The Asylum Division also 
as a matter of policy determines which cases should receive further 
review at the headquarters level before being finalized. See, e.g., 
USCIS Asylum Division, Affirmative Asylum Procedures Manual, III.Q. 
Quality Assurance Review (May 2016), https://www.uscis.gov/sites/default/files/document/guides/AAPM-2016.pdf. Further, the Director of 
USCIS, or the Director's delegate, ``may direct that any case or class 
of cases be certified'' to another USCIS official, including the USCIS 
Director herself, for decision. See 8 CFR 103.4(a)(1). Accordingly, 
USCIS

[[Page 18113]]

adjudicates each asylum claim, and the individual asylum officer is 
only empowered to grant asylum, as an exercise of the Secretary's 
authority. See 8 CFR 208.9(a).
    If a grant of asylum or withholding of removal is not warranted, 
the grant may be terminated by USCIS or an immigration judge, as 
appropriate. See INA 208(c)(2), 8 U.S.C. 1158(c)(2); 8 CFR 208.24, 
1208.24. A grant of CAT deferral of removal may also be terminated. See 
8 CFR 208.17(d)-(f), 1208.17(d)-(f). The procedures for termination of 
a grant of asylum, withholding of removal, or deferral of removal is 
not changed by the rule. Any further judicial review may occur after 
the termination of asylum or other protection commences.
    Moreover, with regard to individuals who are found eligible for 
withholding of removal but not granted asylum, the rule generally 
provides an opportunity for correcting an erroneous finding of 
eligibility through the streamlined section 240 proceeding. For 
example, if the DHS attorney becomes aware of new derogatory 
information indicating that the noncitizen is ineligible for that other 
protection, such information can be submitted and accounted for in the 
IJ's removal order. Finally, to the extent this IFR sets up a process 
under which, where an asylum officer declines to grant a noncitizen's 
asylum claim, that noncitizen can continue to pursue that claim before 
an IJ, the IFR does not break new ground. Rather, in these respects, 
the IFR mirrors the longstanding affirmative asylum process.
    Comments: Several commenters generally opposed the rule on the 
ground that it would delay or otherwise make it harder for DHS to 
remove noncitizens by giving them more opportunities to appeal. 
Commenters expressed concern that delays in removal, coupled with more 
expeditious grants of asylum, would encourage more irregular migration 
and incentivize individuals to make fraudulent claims for asylum to 
obtain parole from detention.
    Response: The Departments acknowledge the commenters' concern but 
disagree with their conclusions. The rule intends to streamline 
adjudication of protection claims, whether granted or not. As noted in 
the NPRM, for claims involving non-detained individuals in section 240 
removal proceedings, including asylum seekers encountered at the border 
and initially screened into expedited removal who establish a credible 
fear of persecution, the current average case completion time for EOIR 
is 3.75 years, and individuals who arrive at the border and seek 
protection therefore often must wait several years for an initial 
adjudication by an IJ. See 86 FR 46909, 46928 tbl. 6. Any appeal after 
that adjudication adds even more time that an individual may expect to 
remain in the United States. Given the length of the process under the 
status quo and the streamlining procedures incorporated into the new 
process to promote prompt resolution of removal proceedings, it is 
unlikely that the new process allowed by the rule will result in 
further ``delays in removal'' that commenters fear may encourage 
further irregular migration or incentivize the filing of non-
meritorious claims by individuals who do not need protection. The new 
process replaces a single section 240 removal proceeding in immigration 
court with a merits interview before an asylum officer, followed by a 
streamlined section 240 removal proceeding if USCIS does not grant 
asylum. Comments that assume this new two-step process will result in 
greater delays overlook that the new process is tailored specifically 
to adjudicate asylum and related protection claims, and individuals in 
the process will have been determined by an immigration officer to be 
inadmissible under section 235(b)(1)(A)(i) of the INA, 8 U.S.C. 
1225(b)(1)(A)(i).\53\ Additionally, as detailed in Section III.D of 
this preamble, the streamlined 240 removal proceeding will be governed 
by special procedural rules, including time frames and limits on 
continuances, that assure prompt completion. This streamlined process, 
as provided by the rule, thus addresses the commenters' underlying 
concern regarding delays. As explained in the NPRM, the Departments 
believe that this rule will substantially reduce the average time to 
adjudicate asylum claims--whether the final decision is a grant or a 
denial--thereby reducing any incentive for exploitation of the asylum 
system.
---------------------------------------------------------------------------

    \53\ To be sure, the IFR includes exceptions to these 
streamlined section 240 proceedings. One of those exceptions is for 
noncitizens who raise a substantial challenge to the charges of 
inadmissibility or removability. See 8 CFR 1240.17(k)(3). Certain 
streamlining provisions under 8 CFR 1240.17, including the 
deadlines, and the limits on continuances and extensions of 
deadlines, will not apply in cases involving such noncitizens.
---------------------------------------------------------------------------

    Comments: Several commenters generally opposed the rule based on 
the view that nearly all the migrants encountered at or near the 
Southwest border are economic migrants, not legitimate asylum seekers, 
and that all such individuals should therefore be removed without 
wasting resources on adjudications and appeals.
    Response: The Departments acknowledge commenters' concern that 
legitimate asylum seekers be identified and distinguished from 
individuals seeking to enter the United States for other purposes, and 
the rule is indeed designed to more expeditiously and fairly 
distinguish the one group from the other. The Departments disagree with 
commenters' characterization that nearly all migrants encountered at 
the Southwest border are only seeking economic opportunity. Recent 
surveys of individuals seeking to migrate to the United States have 
found that individuals cite a variety of factors, often in combination, 
for leaving their country of origin. While economic concerns and a 
belief in American prosperity and opportunity are common reasons 
stated, violence and insecurity have been cited as reasons for 
migrating by majorities or near majorities of those surveyed.\54\ And, 
regardless, Congress has instructed that individuals in expedited 
removal who claim a fear of persecution or indicate an intent to apply 
for asylum be given an individualized credible fear screening. INA 
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii); see also 8 CFR 208.30. 
The purpose of these individualized screenings is to prevent the 
removal of individuals in need of protection to a country where they 
face persecution or torture. Under this IFR, as under current 
regulations, individuals who receive a positive credible fear 
determination are given a fair opportunity to pursue their claim for 
asylum or other protection. Individuals who receive a negative credible 
fear determination and individuals who are determined to not warrant a 
discretionary grant of asylum or to be otherwise ineligible for 
protection will be subject to removal. Moreover, by making changes to 
facilitate the more frequent use of expedited removal for broader 
classes of individuals and families, the IFR will enable the 
Departments to more quickly secure removal orders in cases in which no 
fear claim is asserted or no credible fear is established than if such 
individuals and families were instead placed directly in removal 
proceedings, as frequently occurs.
---------------------------------------------------------------------------

    \54\ See, e.g., Randy Capps et al., Migration Policy Institute, 
From Control to Crisis: Changing Trends and Policies Reshaping U.S.-
Mexico Border Enforcement 18-19 (Aug. 2019), https://www.migrationpolicy.org/sites/default/files/publications/BorderSecurity-ControltoCrisis-Report-Final.pdf (last visited Mar. 
15, 2022); Medicins Sans Frontieres, Forced to Flee Central 
America's Northern Triangle: A Neglected Humanitarian Crisis 10-11 
(May 2017), https://www.msf.org/sites/msf.org/files/msf_forced-to-flee-central-americas-northern-triangle_e.pdf (last visited Mar. 15, 
2022).

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[[Page 18114]]

    Comments: Multiple individual commenters generally opposing the 
proposed rule asserted that the rule, contrary to its stated purpose, 
would most likely increase the backlog of asylum cases, either because 
of the multiple levels of appeal available whenever an individual's 
claim is not granted or because the rule would likely encourage more 
people to enter the United States and make a fear claim.
    Response: The Departments agree that high rates of asylum 
applications relative to historic data are of concern for both USCIS 
asylum offices and the immigration courts. However, commenters 
misapprehend the nature of the review and appeal structure proposed in 
the NPRM and finalized, in modified form, in this IFR. The new process 
replaces a single section 240 removal proceeding in immigration court 
with an interview before an asylum officer, which is followed by a 
streamlined section 240 removal proceeding if the asylum officer does 
not grant asylum. Commenters assume that any new two-step process will 
increase the backlog of asylum cases, but the process this IFR 
establishes is tailored specifically to adjudicate asylum claims. 
Additionally, as detailed above in Section III.D of this preamble, 
unlike an ordinary section 240 removal proceeding, streamlined section 
240 removal proceedings will be governed by special procedural rules, 
including limits on continuances, that assure prompt completion. As a 
result, the process established by this rule is expected to take less 
time and assist in stemming case backlogs relative to the current 
process of initially adjudicating all claims through an ordinary 
section 240 proceeding, followed by the possibility of appeal to the 
BIA and review by the U.S. Courts of Appeals. The Departments also 
disagree with commenters' predictions that the rule would increase the 
backlog of asylum cases by encouraging more individuals to seek asylum 
or related protection, as commenters have not identified any evident 
causal mechanism by which the rule as a whole, in context, would 
systematically and substantially incentivize more individuals to seek 
to enter the United States and pursue asylum. On the contrary, the 
Departments believe that, by enabling prompt adjudication of asylum 
claims--including the prompt rejection of claims that lack merit--the 
rule would discourage individuals who lack a basis for asylum or 
related protection to seek to enter the United States or claim 
protection.
    Comments: A few commenters expressed opposition for each of the 
following reasons: The proposed rule would change the substantive 
standard for asylum eligibility; the proposed rule would allow 
noncitizens who entered the United States without authorization to 
``cut the line'' ahead of those who have been awaiting legal 
immigration and therefore will be unfair and harmful to those whose 
cases are delayed and will remove incentives for individuals to pursue 
legal immigration; and the proposed rule would automatically provide 
for ``immediate'' U.S. citizenship. A few commenters also expressed 
opposition on the ground that only elected officials should make asylum 
decisions or, alternatively, only voters should make asylum 
determinations. In addition, one commenter opposing the rule described 
it as ``giving two chances at asylum'' and another commenter described 
it as a proposal to ``cut funding for the detention of asylum 
seekers.''
    Response: The concerns expressed by these commenters are based on 
apparent factual misunderstandings of the asylum standards, the asylum 
adjudications system, and the effect of an asylum grant. In that 
regard, the NPRM would not have changed, and the IFR does not change, 
the standards for qualifying for asylum. Further, the NPRM would not 
have provided, and the IFR does not provide, ``immediate'' U.S. 
citizenship to anyone. Rather, this rulemaking is concerned with the 
system for adjudicating asylum claims by noncitizens found to have 
credible fears of persecution or torture. While a noncitizen granted 
asylum may eventually apply for and receive citizenship if certain 
conditions are met, a grant of asylum on its own does not entitle the 
recipient to citizenship. The Departments believe that the changes 
suggested by these comments either are not within the scope of the 
rulemaking or would be impermissible under current U.S. law.
    Comments: A commenter stated that the proposed rule would 
negatively affect individuals seeking asylum through the affirmative 
application process. The commenter noted that USCIS has more than 
400,000 pending affirmative asylum cases, and most cases take more than 
180 days to adjudicate. The commenter stated that the proposed rule 
would exacerbate this backlog by adding to the queue the asylum claims 
of individuals in expedited removal proceedings. While the commenter 
acknowledged that the Departments proposed in the NPRM to increase 
staffing levels in order to implement the new rule, the commenter 
stated that these additional resources should be used to adjudicate 
existing cases in order within the 180-day period mandated by Congress. 
Other commenters stated that the Departments have not addressed whether 
the proposed rule will increase backlogs and wait times for affirmative 
cases.
    Response: The Departments acknowledge the commenter's concern for 
individuals with affirmative asylum cases pending before USCIS but 
disagree that this rule will negatively affect them. As discussed in 
the NPRM, the Departments have planned for the new process described in 
this rule to be implemented in phases, as the necessary staffing and 
resources are put into place. A phased implementation will allow the 
Departments to begin employing the proposed process in a controlled 
manner for a limited number of cases, giving USCIS the opportunity to 
work through operational challenges and ensure that each noncitizen 
placed into the process is given a full and fair opportunity to have 
any protection claim presented, heard, and properly adjudicated in full 
conformance with the law. As the commenter acknowledged, USCIS plans to 
hire new employees and secure additional funding to implement this rule 
so that it will not be necessary to divert resources from existing 
caseloads, including affirmative asylum, to do so. USCIS has estimated 
that it will need to hire approximately 800 new employees and spend 
approximately $180 million to fully implement the proposed Asylum 
Merits interview and adjudication process to handle approximately 
75,000 cases annually. While addressing the affirmative asylum backlog 
is outside the scope of the rulemaking, the Departments acknowledge the 
importance of doing so and note that USCIS has taken other actions to 
address this priority. These include expanding facilities; hiring and 
training new asylum officers; implementing operational changes to 
increase interviews and case completions and reduce backlog growth; 
establishing a centralized vetting center; and working closely with 
technology partners to develop several tools that streamline case 
processing and strengthen the integrity of the asylum process.\55\ In 
addition, on September 30, 2021, Congress passed the Extending 
Government Funding and Delivering Emergency Assistance Act, which 
provides dedicated backlog elimination funding to USCIS for 
``application

[[Page 18115]]

processing, the reduction of backlogs within asylum, field, and service 
center offices, and support of the refugee program.'' Public Law 117-
43, sec. 132, 135 Stat. 344, 351.
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    \55\ See USCIS, Backlog Reduction of Pending Affirmative Asylum 
Cases: Fiscal Year 2021 Report to Congress (Oct. 20, 2021), https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf.
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    Comments: Some commenters generally proposed alternative ways to 
reduce delays and strain on the U.S. system for asylum adjudication and 
urged the Departments to implement these alternatives rather than the 
proposed rule. Proposed alternatives included the following actions:
    <bullet> Taking unspecified actions to significantly reduce the 
number of people crossing the border;
    <bullet> devoting more resources to the current asylum process, 
including hiring more IJs;
    <bullet> adopting stricter substantive standards for demonstrating 
asylum eligibility;
    <bullet> implementing the Migrant Protection Protocols (``MPP'');
    <bullet> criminally prosecuting anyone who makes a fraudulent 
asylum claim;
    <bullet> denying all asylum requests; and
    <bullet> denying asylum to noncitizens who cross the border between 
ports of entry.
    Response: The Departments acknowledge the commenters' suggestions 
and recognize that building an immigration system that works and 
maintaining an orderly, secure, and well-managed border requires 
multiple coordinated lines of effort. High numbers of unauthorized 
border crossings, transnational criminal organizations seeking to 
profit from a range of illicit activities, and the ongoing impact of 
COVID-19 on the processing of migrants present significant challenges 
along the Southwest border. DHS has deployed unprecedented levels of 
personnel, technology, and resources and has made critical security 
improvements to secure and manage our borders. The Departments 
emphasize that this rule addresses specifically the way in which asylum 
and related protection claims of certain individuals encountered near 
the border are considered, with the aim of adjudicating those claims in 
a timelier manner while ensuring fundamental fairness. Comments 
advocating for other immigration policy changes that in theory could 
lead to fewer individuals making fear claims are outside the scope of 
this rulemaking.
    The Departments agree that increasing the number of IJs is part of 
the solution to alleviating the current strain on the U.S. asylum 
system. The Fiscal Year 2022 President's Budget requests an additional 
100 IJs and associated support staff to ensure the efficient and fair 
processing of cases, and EOIR will continue to request funding to add 
additional IJs. See DOJ, FY 2022 Budget Request, https://www.justice.gov/jmd/page/file/1398846/download. Given the increase in 
the number of immigration judges requested of and authorized by 
Congress during recent budget cycles, the Fiscal Year 2022 President's 
Budget also requests 100 additional ICE litigators to prosecute the 
removal proceedings initiated by DHS, consistent with 6 U.S.C. 252(c). 
See DHS, ICE Budget Overview Fiscal Year 2022 Congressional 
Justification ICE-O&S-22, https://www.dhs.gov/sites/default/files/publications/u.s._immigration_and_customs_enforcement.pdf (explaining 
that the ICE Office of the Principal Legal Advisor currently faces a 
staffing budgetary shortfall of several hundred positions).
b. Negative Impacts on Applicants and Their Support Systems
    Comments: A few commenters opposed the proposed rule based on 
generally stated concerns about negative consequences for asylum 
seekers. Commenters stated that the existing process for adjudicating 
asylum claims originating in credible fear screening is effective and 
provides strong legal protections for asylum seekers, including the 
opportunity for judicial review. Other commenters expressed concern 
that any streamlining of the existing process would result in asylum 
seekers being ordered removed without receiving full and fair 
consideration of their protection claims.
    Response: The Departments disagree with the commenters' premise 
that any change from the existing procedure that seeks to determine 
relief or protection claims in a timelier manner will be detrimental to 
individuals who are seeking asylum. The procedure established by this 
rule gives individuals appropriate procedural protections, as well as 
an opportunity for those whose relief or protection claims are denied 
to seek judicial review after exhausting their administrative remedies. 
Moreover, as described above, the Departments are finalizing the rule 
with certain changes from the NPRM that are responsive to concerns 
about fairness, such as retaining USCIS's authority to entertain 
reconsideration of a negative credible fear determination that has been 
upheld by an IJ, specifying a minimum number of days between a positive 
credible fear determination and the Asylum Merits interview, and 
eliminating the restrictions on the evidence applicants may submit 
before IJs.
c. Negative Impacts on U.S. Citizens and the Economy
    Comments: Many commenters generally opposed the rule due to 
concerns that it will lead to increases in unauthorized immigration, 
immigration benefits illegally obtained by fraud, or lawful immigration 
that the commenters perceived as illegitimate. Commenters expressed 
concern that such immigration would have negative effects on U.S. 
citizens and the U.S. economy, including with respect to availability 
of housing and other resources, wages and jobs, public health, costs of 
schools and healthcare, crime and safety, the deficit, and the 
environment, among other things. For the most part, commenters did not 
provide details about why they believed that the rule would result in 
increased immigration or increased rates of fraud or misrepresentation. 
Some commenters, however, explained that they believed the rule would 
drive increased unauthorized or fraudulent immigration ``by promising 
aliens who have made bogus asylum claims freedom from detention.'' 
Other commenters explained that they believed the rule would drive 
increased unauthorized or fraudulent immigration by allowing for 
nonadversarial merits adjudications, without an ICE attorney assigned 
to cross-examine the applicant or present impeachment evidence.
    Response: The Departments acknowledge the comments on the potential 
negative impacts of lawful immigration, including the impacts on wages, 
jobs, and the labor force. However, because the rule does not change 
the substantive standard for asylum or related protection, the 
Departments do not expect that the rule will lead to increases in legal 
immigration, although it may lead to some eligible noncitizens 
receiving asylum or related protection sooner than they otherwise 
would. Section V.B of this preamble estimates the effects, on a per-
individual, per-day basis, of individuals receiving employment 
authorization earlier as a result of efficiencies introduced by the 
rule. Contrary to commenters' claims, as detailed in Section V.B of 
this preamble, the increased efficiencies of this IFR could also result 
in fewer individuals who are ineligible for protection receiving 
employment authorization, if their applications are not granted before 
the waiting period for employment authorization under 8 CFR 
274a.12(c)(8) has run. Furthermore, even if there were reason to 
believe that the rule may lead to increases in legal immigration, the 
Departments note that commenters did not provide any data or studies

[[Page 18116]]

supporting negative net impacts of asylees on U.S. citizens or the U.S. 
economy.\56\
---------------------------------------------------------------------------

    \56\ Isolating immigration's effect on labor markets has been an 
ongoing task in the research. A 2017 National Academies of Sciences, 
Engineering, and Medicine (``NAS'') publication synthesizes the 
current peer-reviewed literature on the effects of immigration and 
empirical findings from various publications. NAS, The Economic and 
Fiscal Consequences of Immigration (2017), https://www.nap.edu/catalog/23550/the-economic-and-fiscal-consequences-of-immigration 
(last visited Mar. 5, 2022) (``2017 NAS Report''). Although this 
report is not specific to asylees, its analysis may be instructive. 
The report cautions that economic theory alone is not capable of 
producing definitive answers about the net impacts of immigration on 
labor markets over specific periods or episodes. Empirical 
investigation is needed. But wage and employment impacts created by 
flows of foreign-born workers into labor markets are difficult to 
measure. The effects of immigration have to be isolated from many 
other influences that shape local and national economies and the 
relative wages of different groups of workers. Id. at 4.
---------------------------------------------------------------------------

    While the Departments acknowledge the commenters' concerns about 
the negative impacts of unauthorized immigration and unauthorized 
entrance into the United States without inspection or parole, the 
Departments disagree with the commenters that there is reason to 
believe that the rule will result in an increase in the number of 
individuals who enter the United States without inspection or parole, 
or in an increase in those who stay beyond their authorized period of 
admission. If anything, by more expeditiously ordering removed those 
who are ineligible for protection, this rule may send a stronger 
deterrent signal relative to the status quo. Moreover, as outlined 
above, the United States is undertaking a range of efforts to address 
irregular migration and promote security at the border. Without 
additional information about the mechanism by which commenters 
anticipate that this rule will lead to more unauthorized migration, the 
Departments cannot further evaluate these comments. The Departments 
note that the rule does not ``promis[e] . . . freedom from detention,'' 
and the Departments disagree with the commenters' concern about the 
nonadversarial nature of the Asylum Merits interview, as previously 
explained.
    Similarly, while the Departments appreciate commenters' concerns 
about individuals seeking to obtain asylum or related protection by 
fraud or misrepresentation, the Departments disagree that there is any 
reason to believe that the rule will result in an increase in either 
the incidence or success of such fraud or misrepresentation. As 
explained earlier in Section IV.B.2.a of this preamble, the Departments 
are confident that asylum officers have the training, skills, and 
experience needed to assess credibility and appropriately determine 
asylum eligibility through a nonadversarial interview.\57\ With respect 
to comments noting a negative impact of immigration (whether lawful or 
unauthorized) on availability of housing, public health, costs of 
schools and healthcare, the deficit, and the environment, the comments 
lacked specific information expanding on these statements and 
explaining how this rule would impact these areas. Environmental issues 
are addressed in Section V.J of this preamble.
---------------------------------------------------------------------------

    \57\ The approval rate [total cases granted/total cases granted 
+ total case denied + total cases referred (USCIS affirmative asylum 
processing only)] of asylum officers and IJs on the merits of asylum 
claims from Fiscal Years 2017 through 2021 show approval rates for 
asylum claims adjudicated by asylum officers to be in the 26-37 
percent range, while IJ approval rates on asylum claims that started 
as credible fear screenings ranged from 31-39 percent and on all 
asylum claims (regardless of whether they began in the expedited 
removal or credible fear process) ranged from 26-37 percent. This 
information suggests that asylum officers are just as equipped to 
identify individuals not meeting asylum eligibility requirements as 
IJs who use the adversarial process with the participation of ICE's 
Office of the Principal Legal Advisor to reach a decision on asylum 
eligibility. USCIS, Refugee, Asylum and Int'l Operations 
Directorate, Asylum Division Workload Statistics for Affirmative 
Asylum 2009 to 2021 (2022); EOIR Adjudications Statistics: Asylum 
Decision and Filing Rates in Cases Originating with a Credible Fear 
Claim (Jan. 19, 2022), https://www.justice.gov/eoir/page/file/1062976/download; EOIR Adjudications Statistics: Asylum Decision 
Rates (Jan. 19, 2022), https://www.justice.gov/eoir/page/file/1248491/download.
---------------------------------------------------------------------------

    Comments: Numerous commenters stated that the needs, interests, and 
protection of the American people should come first, and they asserted 
that the proposed rule would ``elevate'' asylum seekers and others who 
enter the United States without authorization above U.S. citizens. Many 
individual commenters stated that the asylum program should be halted, 
or should not be changed, until the United States can support and help 
its own citizens who are in need.
    Response: The Departments acknowledge the commenters' concern for 
U.S. citizens, and in particular for U.S. citizens in need. The 
Departments disagree, however, with the commenters' assumption that the 
rule either prioritizes the interests of asylum seekers over the 
interests of U.S. citizens or will be to the detriment of the needs, 
interests, or protection of U.S. citizens. An asylum system that more 
expeditiously determines whether individuals are or are not eligible 
for asylum or other protection in the United States, while providing 
due process, is in the public interest. It complies with Congress's 
instruction in INA 235, 8 U.S.C. 1225, that individuals in expedited 
removal be screened for credible fear of persecution and receive 
individualized consideration of their claims; it allows individuals who 
are not eligible for protection to be removed more promptly, thereby 
reducing any incentives to exploit the process; and it allows 
individuals who are eligible for asylum or other protection to sooner 
receive that assurance and integrate into their new community. Some 
commenters invoked particular categories of U.S. citizens in need, 
including persons experiencing unemployment or homelessness, veterans, 
persons with disabilities, and children in foster care, but the 
commenters did not provide any explanation or information to support 
the idea that this rule will operate to the detriment of these groups, 
or to support the idea that halting the asylum program--as some 
commenters proposed--would benefit these groups. The Departments note 
that the rule's potential and uncertain impacts on the U.S. labor force 
are analyzed in Section V.B of the preamble.
    Comments: Multiple commenters stated generally that asylees' 
dependence on Government programs for support would lead to an undue 
burden on American taxpayers, exacerbation of the U.S. deficit, or 
increased costs of education and healthcare in the communities where 
asylees live.
    Response: The Departments appreciate commenters' concern that 
public costs at the Federal, State, or local level might accompany 
increases in the number of individuals granted asylum in the United 
States. However, these general comments did not provide information or 
explanation to support either (1) the premise that this rule will lead 
to more individuals being granted asylum in the United States, or (2) 
the premise that increases in the number of individuals granted asylum 
in the United States would, on net, lead to increased public costs or 
costs of education or healthcare. The Departments believe that the IFR 
is unlikely to lead to significant increases in the number of 
individuals granted asylum in the United States, much less to increased 
public costs or costs of education or healthcare that outpace asylees' 
contributions in taxes and economic activity. A more detailed 
explanation of the possible impacts of this rule is provided in Section 
V.B of this preamble. Additionally, the Departments emphasize that 
estimating the fiscal impacts of immigration is a complex calculation. 
The first-order net fiscal impact of immigration is the

[[Page 18117]]

difference between the various tax contributions the immigrants in 
question make to public finances and the Government expenditures on 
public benefits and services they receive. These first-order impacts 
are sensitive to immigrants' demographic and skill characteristics, 
their role in labor and other markets, and the rules regulating 
accessibility and use of Government programs.\58\ In addition, second-
order effects may also occur, and analysis of such effects presents 
methodological and empirical challenges. For example, as with the 
native-born population, the age structure of an immigrant population 
plays a major role in assessing any fiscal impacts. Children and young 
adults contribute less to society in terms of taxes and draw more in 
benefits by using public education, for example. On average, as people 
age and start participating in the labor market, they become net 
contributors to public finances, paying more in taxes than they draw 
from public benefit programs. Moreover, older adults could again become 
net users of public benefit programs. Compared to the native-born 
population, immigrants can also differ in their characteristics in 
terms of skills, education levels, income levels, number of dependents 
in the family, the places they choose to live, etc., and any 
combination of these factors could have varying fiscal impacts. Local 
and State economic conditions and laws that govern public finances or 
the availability of public benefits also vary and can influence the 
fiscal impacts of immigration.
---------------------------------------------------------------------------

    \58\ See generally 2017 NAS Report at 323-27.
---------------------------------------------------------------------------

d. Other General Opposition to the Proposed Rule
    Comments: Many commenters stated that asylum seekers should remain 
in Mexico during the pendency of their immigration hearings or 
otherwise generally referred to the Migrant Protection Protocols 
(``MPP''). Similarly, other commenters asked the Department to clarify 
how the rule may comply or conflict with MPP. Specifically, commenters 
raised concerns regarding implementation of the program, litigation 
surrounding MPP, as well as alternative proposals for MPP.
    Response: Because MPP is decidedly separate from the expedited 
removal and credible fear process, comments concerning MPP are outside 
the scope of the changes made in this rule.\59\ The Departments 
appreciate engagement and concerns related to MPP, but discussion of 
the program, ongoing litigation, and DHS's efforts to terminate the 
program are outside the scope of this rulemaking. Moreover, the 
Secretary of DHS has already explained in detail his reasons for 
terminating MPP and his decision not to use the contiguous-territory-
return authority on a programmatic basis.\60\
---------------------------------------------------------------------------

    \59\ Individuals processed for expedited removal are excluded 
from MPP, as that program is being implemented in compliance with 
the court order in Texas v. Biden, No. 2:21-cv-67, --F. Supp. 3d. --
, 2021 WL 3603341 (N.D. Tex. Aug. 13, 2021). By its terms, MPP 
applies only to noncitizens initially placed into section 240 
proceedings, not the noncitizens at issue here, who are initially 
placed into expedited removal proceedings. See Memorandum from 
Robert Silvers, Under Secretary, Office of Strategy, Policy, and 
Plans, Guidance Regarding the Court-Ordered Reimplementation of the 
Migrant Protection Protocols 4 (Dec. 2, 2021), https://www.dhs.gov/sites/default/files/2022-01/21_1202_plcy_mpp-policy-guidance_508.pdf. Nor does MPP eliminate expedited removal as an 
option for processing certain inadmissible noncitizens arriving in 
the United States. Some individuals--e.g., Mexican nationals or 
nationals of countries outside the Western Hemisphere--may be 
eligible for processing through expedited removal but could not be 
considered for processing under MPP, which explicitly excludes 
certain categories of noncitizens. Additionally, the permanent 
injunction in Texas v. Biden specifically preserves the Secretary of 
DHS's discretion to make individual determinations about how to 
process a particular individual. See Texas v. Biden, 2021 WL 
3603341, at *27. That discretion encompasses whether to process a 
specific noncitizen for 240 proceedings or expedited removal. See 
Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011).
    \60\ See Memorandum from Alejandro N. Mayorkas, Secretary of 
Homeland Security, Termination of Migrant Protection Protocols (Oct. 
29, 2021), https://www.dhs.gov/sites/default/files/publications/21_1029_mpp-termination-memo.pdf; DHS, Explanation of the Decision 
to Terminate the Migrant Protection Protocols (Oct. 29, 2021), 
https://www.dhs.gov/sites/default/files/publications/21_1029_mpp-termination-justification-memo.pdf.
---------------------------------------------------------------------------

C. Basis for the Proposed Rule

1. DOJ and DHS Statutory/Legal Authority
    Comments: Many individual commenters generally argued that the 
Departments do not have the statutory or legal authority to issue the 
rule, but the commenters did not provide a basis for their belief. Some 
individual commenters stated that the rule is unlawful, bypasses 
Congress, or cannot be issued as an executive decision.
    Response: The Departments believe that these general comments 
misapprehend or misstate the legal authorities involved in this 
rulemaking. As noted above in Section II.B of this preamble, asylum, 
statutory withholding of removal, and protection under the CAT are 
established or required by statute. See INA 208, 8 U.S.C. 1158; INA 
241(b)(3), 8 U.S.C. 1231(b)(3); FARRA sec. 2242. This rule does not 
seek to bypass Congress or otherwise act where Congress has not given 
the Departments authority. This rule is consistent with statutory 
authority provided by Congress, and it is intended to create 
efficiencies in implementing a framework allowing for fair, consistent 
adjudications.
    Comments: Commenters argued that the Homeland Security Act of 2002 
expressed congressional intent that defensive asylum claims be 
adjudicated by IJs rather than asylum officers by granting EOIR the 
authority to adjudicate these claims but making no such provision for 
USCIS. Moreover, commenters noted that because the HSA specified the 
date on which powers would be vested in USCIS, Congress did not intend 
that the Departments be able to reallocate the authorities of IJs and 
asylum officers through regulations and that Congress has decided not 
to reallocate authorities relevant to the proposed rule since 2003. 
Another comment argued that the Illegal Immigration Reform and 
Immigrant Responsibility Act expressed congressional intent that asylum 
seekers found to have a credible fear of persecution have their cases 
adjudicated by IJs. One comment cited IIRIRA legislative history in 
arguing that the credible fear interview's purpose is to ``weed out 
non-meritorious cases'' and that asylum proceedings should be overseen 
by an IJ. One commenter asserted that legislative proposals under 
consideration in both the House and the Senate demonstrate Congress's 
interest in asylum policy and in immigration policy generally. The 
commenter argued that gridlock in Congress does not give executive 
agencies a ``free pass'' to overstep the legislative directives given 
to them by Congress.
    Response: The Departments believe that these comments misapprehend 
or misstate the legal authorities involved in this rulemaking. This 
rule does not seek to bypass Congress or otherwise act where Congress 
has not given the Departments authority. If an asylum officer 
determines that a noncitizen has a credible fear of persecution, the 
noncitizen ``shall be detained for further consideration of the 
application for asylum.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 
1225(b)(1)(B)(ii). The statute, however, ``does not specify how or by 
whom this further consideration should be conducted.'' Inspection and 
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct 
of Removal Proceedings; Asylum Procedures, 62 FR 444, 447 (Jan. 3, 
1997).
    By not specifying what ``further consideration'' entails, the 
statute leaves it to the agency to determine. Under Chevron, it is 
well-settled that such ``ambiguity constitutes an implicit delegation 
from Congress to the agency

[[Page 18118]]

to fill in the statutory gaps.'' FDA v. Brown & Williamson Tobacco 
Corp., 529 U.S. 120, 159 (2000) (citing Chevron, 467 U.S. at 844); see 
also Epic Sys. Corp., 138 S. Ct. at 1629 (noting that Chevron rests on 
``the premise that a statutory ambiguity represents an implicit 
delegation to an agency to interpret a statute which it administers'' 
(quotation marks omitted)). An agency may exercise its delegated 
authority to plug the gap with any ``reasonable interpretation'' of the 
statute. Chevron, 467 U.S. at 844.
    By its terms, the phrase ``further consideration'' is open-ended. 
The fact that Congress did not specify the nature of the proceedings 
for those found to have a credible fear contrasts starkly with two 
other provisions in the same section that expressly require or deny 
section 240 removal proceedings for certain other classes of 
noncitizens. In one provision, INA 235(b)(2)(A), 8 U.S.C. 
1225(b)(2)(a), Congress provided that an applicant for admission who 
``is not clearly and beyond a doubt entitled to be admitted'' must be 
``detained for a proceeding under section [INA 240].'' And in another, 
INA 235(a)(2), 8 U.S.C. 1225(a)(2), Congress provided that ``[i]n no 
case may a stowaway be considered . . . eligible for a hearing under 
section [INA 240].'' These examples show that Congress knew how to 
specifically require immediate referral to a section 240 removal 
proceeding when it wanted to do so. ``Where Congress includes 
particular language in one section of a statute but omits it in another 
section of the same Act, it is generally presumed that Congress acts 
intentionally and purposely in the disparate inclusion or exclusion.'' 
Salinas, 141 S. Ct. at 698 (quotation marks omitted).
    The D.C. Circuit has ``consistently recognized that a congressional 
mandate in one section and silence in another often suggests not a 
prohibition but simply a decision not to mandate any solution in the 
second context, i.e., to leave the question to agency discretion.'' 
Catawba Cnty., 571 F.3d at 36 (quotation marks omitted). The suggestion 
that Congress's silence in section 235(b)(1) of the INA, 8 U.S.C. 
1225(b)(1), permits the Departments discretion to establish procedures 
for ``further consideration'' is reinforced by the fact that the 
noncitizens whom DHS has elected to process using the expedited removal 
procedure are expressly excluded from the class of noncitizens who are 
statutorily guaranteed section 240 removal proceedings under section 
235(b)(2)(A) of the INA, 8 U.S.C. 1225(b)(2)(A). See INA 
235(b)(2)(B)(ii), 8 U.S.C. 1225(b)(2)(B)(ii).
    The Departments disagree with the comments arguing that any statute 
requires asylum cases to be adjudicated through an adversarial process. 
The rule is designed to implement the statute, which does not specify 
what ``further consideration of [an] application for asylum'' entails 
and which thereby leaves it to the agency to determine what will occur 
when an individual placed in expedited removal is found to have 
demonstrated a credible fear of persecution. INA 235(b)(1)(B)(ii), 8 
U.S.C. 1225(b)(1)(B)(ii). Nothing in the asylum statute requires the 
Secretary of Homeland Security to establish an adversarial procedure to 
determine whether a noncitizen may be granted asylum.
    The Departments also disagree with the comments that defensive 
asylum applications are statutorily required to be adjudicated by DOJ 
instead of by DHS. The asylum statute provides that specified 
noncitizens ``may apply for asylum,'' including ``in accordance with . 
. . [INA 235(b), 8 U.S.C. 1225(b)],'' INA 208(a)(1), 8 U.S.C. 
1158(a)(1), and that ``[t]he Secretary of Homeland Security or the 
Attorney General may grant asylum to [a noncitizen] who has applied for 
asylum in accordance with the requirements and procedures established 
by the Secretary of Homeland Security or the Attorney General under 
[the asylum statute] if the Secretary of Homeland Security or the 
Attorney General determines that such [noncitizen] is a refugee,'' INA 
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). Section 208(b)(1)(A) of the INA 
does not distinguish between affirmative and defensive asylum 
applications, and its text--``may grant asylum,'' indicating that the 
Secretary of Homeland Security, on considering an asylum application, 
may determine not to grant it--confers adjudicatory authority.
    Cross-references between the asylum statute and the expedited 
removal statute provide further support for the conclusion that the 
asylum statute authorizes DHS to adjudicate defensive asylum 
applications. See, e.g., INA 208(a)(1), 8 U.S.C. 1158(a)(1) (citing INA 
235(b), 8 U.S.C. 1225(b)); INA 235(b)(1)(A)(i), (ii), 8 U.S.C. 
1225(b)(1)(A)(i), (ii) (citing INA 208, 8 U.S.C. 1158). The legislative 
history of the asylum statute supports this reading as well. Prior to 
2005, section 208(b)(1)(A) referred only to the Attorney General. See 
INA 208(b)(1) (2000), 8 U.S.C. 1158(b)(1) (2000). Congress specifically 
added in certain references to the Secretary of Homeland Security in 
the REAL ID Act of 2005 and backdated the references' effectiveness to 
the HSA's effective date. Public Law 109-13, div. B, 101(a)(1), (2), 
(h)(1), 119 Stat. 231.\61\ In addition, the REAL ID Act's conference 
report explains that the Act amended INA 208(b)(1) ``to clarify that 
the Secretary of Homeland Security and the Attorney General both have 
authority to grant asylum,'' ``[b]ecause both the Secretary of Homeland 
Security and the Attorney General may now exercise authority over 
asylum depending on the context in which asylum issues arise.'' H.R. 
Rep. No. 109-72, at 162 (2005).
---------------------------------------------------------------------------

    \61\ That is not to say that the Secretary lacks other 
authorities in INA 208, 8 U.S.C. 1158, where Congress did not 
expressly add the Secretary in the REAL ID Act of 2005. Since 
enactment of the HSA, Congress has inserted piecemeal references to 
the Secretary in various provisions of the INA without doing so 
comprehensively.
---------------------------------------------------------------------------

    Last, although the Departments acknowledge that some statements in 
IIRIRA's legislative history could be read to suggest an expectation 
that noncitizens detained for ``further consideration'' would be placed 
in ``normal non-expedited removal proceedings,'' see, e.g., H.R. Rep. 
No. 104-828, at 209 (1996), the legislative history is inconsistent 
and, in any event, ``legislative history is not the law,'' Epic Sys., 
138 S. Ct. at 1631. The Departments decline to read a limitation from 
the inconsistent legislative history into otherwise open-ended 
statutory text.
    Comments: Several commenters remarked that the proposed rule would 
create a rushed adjudication process in violation of U.S. obligations 
under both domestic and international law and contrary to United 
Nations High Commissioner for Refugees (``UNHCR'') guidance. Pursuant 
to such guidance, commenters recommended that the Departments make 
efforts to maximize asylum seekers' access to counsel and argued that 
the detention of asylum seekers poses obstacles in this regard. Another 
commenter requested that no part of the asylum process, including the 
credible fear interview, should occur in a U.S. Customs and Border 
Protection facility. Similarly, another commenter cited UNHCR guidance 
and argued that accelerated procedures must, under international law, 
minimize risks of non-refoulement by giving asylum seekers guidance on 
the procedure itself and access to necessary facilities, including a 
competent interpreter, for submitting a protection claim, as well as 
the right to appeal a negative fear determination.
    Response: The Departments disagree with the commenters that the 
procedures for considering protection claims promulgated in this rule 
violate U.S. or international law. As an initial

[[Page 18119]]

note, while the Departments do consider and value UNHCR guidance in 
interpreting the United States' obligations under the 1967 Refugee 
Protocol, such guidance is not binding. The Departments agree with the 
commenters on the need to provide access to counsel to individuals 
making fear claims and have done so in this rule. For example, 8 CFR 
235.3(b)(4)(ii) provides that prior to a credible fear interview, a 
noncitizen shall be given time to contact and consult with any person 
or persons of their choosing. In 8 CFR 208.30(d)(4), DHS provides that 
such person or persons may be present at the credible fear interview. 
In 8 CFR 208.9(b), DHS provides that individuals may have counsel or a 
representative present at affirmative asylum interviews or Asylum 
Merits interviews. In 8 CFR 1240.3 and 1240.10(a)(1), DOJ provides that 
noncitizens may have representation in section 240 proceedings before 
the IJ. The provisions at 8 CFR 1240.3 and 1240.10(a)(1) will apply in 
removal proceedings under this rule; though these proceedings are 
streamlined, noncitizens in them will have the right to representation 
at no expense to the Government. Furthermore, the Departments plan to 
ensure as part of the service of the positive credible fear 
determination, where an individual is placed in the Asylum Merits 
process, that they are provided with a fact sheet explaining the 
process and a contact list of free or low-cost legal service providers 
similar to what the individual would be provided if they were issued an 
NTA and placed into section 240 removal proceedings before EOIR.
    The Departments agree with the commenters that individuals subject 
to an accelerated procedure, such as a credible fear screening within 
expedited removal, should be provided guidance about the procedure, 
including information about the right to review of a negative credible 
fear determination. In 8 CFR 235.3(b)(4)(i), DHS continues to provide 
that individuals referred for credible fear interviews receive a 
written disclosure on Form M-444, Information About Credible Fear 
Interview, describing ``[t]he purpose of the referral and description 
of the credible fear interview process''; ``[t]he right to consult with 
other persons prior to the interview and any review thereof at no 
expense to the United States Government''; ``[t]he right to request a 
review by an [IJ] of the asylum officer's credible fear 
determination''; and ``[t]he consequences of failure to establish a 
credible fear of persecution or torture.'' Additionally, for every 
credible fear interview, asylum officers are trained to explain the 
purpose of the interview and ensure the individual understands. In 
addition, 8 CFR 208.30(d)(2) requires asylum officers conducting 
credible fear interviews to verify that the noncitizen has received 
Form M-444, Information About Credible Fear Interview, and to determine 
that they understand the credible fear determination process. Under 
this rule, if an asylum officer determines an individual does not have 
a credible fear of persecution or torture, the asylum officer must 
refer the individual to an IJ if the individual requests review or 
refuses or fails to indicate whether he or she requests review of the 
asylum officer's credible fear determination. 8 CFR 208.30(g)(1), 
1208.30(g)(2)(i). The process for IJ review of negative credible fear 
determinations involves the creation of a record of proceeding, the 
receiving of evidence, the provision of interpreters, and the right to 
consult with a person or persons of the individual's choosing prior to 
the review. See INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv); 8 CFR 
1003.42.
    The Departments further agree with commenters on the need to 
provide competent interpretation. In 8 CFR 208.30(d)(5), DHS continues 
to provide that asylum officers conducting credible fear interviews 
will arrange for the assistance of an interpreter for noncitizens 
unable to proceed effectively in English where the asylum officer is 
unable to proceed competently in a language the alien speaks and 
understands. The rule provides in 8 CFR 208.9(g)(2) that asylum 
officers conducting Asylum Merits interviews will arrange for 
interpreter services for applicants unable to proceed effectively in 
English. Similarly, EOIR will provide interpretation services in 
credible fear determinations and hearings before an IJ. 8 CFR 
1003.42(c), 1240.5. The Departments have mechanisms in place to ensure 
the quality of interpretation, including the absence of improper bias. 
These include training adjudicators to recognize signs of potential 
problems with interpretation and taking appropriate remedial measures; 
channels to report interpretation issues to the contracting entities 
providing interpretation services; and the periodic review of the terms 
and conditions of interpretation services contracts.
    Regarding the commenters' opposition to the detention of asylum 
seekers, the Departments note that INA 235(b)(1)(B)(iii)(IV), 8 U.S.C. 
1225(b)(1)(B)(iii)(IV), provides that individuals receiving credible 
fear interviews ``shall be detained pending a final determination of 
credible fear of persecution and, if found not to have such a fear, 
until removed.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), 
further provides that noncitizens who receive a positive credible fear 
determination ``shall be detained for further consideration of the 
application for asylum.'' However, the INA additionally authorizes the 
Secretary to parole into the United States temporarily, on a case-by-
case basis, such individuals ``for urgent humanitarian reasons or 
significant public benefit.'' INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). 
And as explained in more detail above, the Departments have provided in 
this rule for the reform of certain regulatory provisions implementing 
this statutory authority for individuals detained in the expedited 
removal process and for those pending a credible fear determination or 
any review thereof.
    Similarly, the Departments disagree with commenters' proposal of 
disallowing credible fear interviews by USCIS asylum officers in CBP 
facilities during the credible fear process and note that this proposal 
is outside the scope of this rulemaking. Given the expedited nature of 
credible fear interviews and their role in initial processing of a 
covered noncitizen, CBP plays an important role in referral of claims 
of fear to a USCIS asylum officer. While the Departments have 
implemented safeguards to decouple law enforcement aims from the 
sensitive nature of protection screening, DHS and DOJ will remain 
flexible in how they use DHS facilities.
2. Need for the Proposed Rule/DOJ and DHS Rationale
    Comments: A commenter stated that the rule would create stronger 
``pull factors'' encouraging foreign nationals to take advantage of 
quick release on parole and with the expectation that they would be 
able to live and work in the United States indefinitely while seeking 
asylum through an even more extended process than now exists. Other 
commenters argued that the proposed rule would lead to granting more 
asylum applications and that such an outcome is inappropriate because 
most asylum applications are not meritorious. Another commenter 
similarly argued that requiring noncitizens to prove their worthiness 
for a ``discretionary form of relief'' is required under existing laws 
and consistent with congressional intent; the commenter faulted the 
proposal for, in the commenter's view, disregarding the requirements of 
the expedited removal statute.
    Conversely, a commenter stated that the proposed rule wrongly 
assumes that

[[Page 18120]]

asylum seekers at the border are more likely to have fraudulent claims 
and suggested imposing section 240 proceedings as the mechanism for 
review of asylum officer adjudication. The commenter cited a statistic 
that found that ``83 percent of [affirmative asylum] cases that asylum 
officers did not grant after interview were subsequently granted asylum 
by the immigration courts in 2016.'' Another commenter noted that the 
increase in credible fear referrals in the past decade more likely 
resulted from the deterioration of human rights conditions in nearby 
countries rather than an increase in fraudulent claims.
    Response: The Departments disagree with the generalized belief that 
the availability of parole in accordance with INA 212(d)(5), 8 U.S.C. 
1182(d)(5), serves as a pull factor for individuals who would be 
covered by this process. As stated above in Section IV.B.2.a of this 
preamble, recent surveys of individuals seeking to migrate to the 
United States have found that individuals cite a variety of factors, 
often in combination, for leaving their country of origin. While 
economic concerns and a belief in American prosperity and opportunity 
are common reasons stated, violence and insecurity have been cited as 
reasons for migrating by majorities or near majorities of those 
surveyed.\62\ To the extent that individuals are motivated by economic 
concerns, the mere possibility of parole out of custody marginally 
earlier--based on an individualized determination--is not expected to 
significantly increase or alter the incentives that lead an individual 
to journey to the United States or remain in their country of origin. 
Importantly, noncitizens in expedited removal who are paroled prior to 
a credible fear determination (that is, the noncitizens affected by 
this IFR's amendment to the regulations concerning parole) will not be 
eligible for employment authorization based on having been paroled.
---------------------------------------------------------------------------

    \62\ See supra note 54.
---------------------------------------------------------------------------

    As to the claim that the majority of asylum applications are 
fraudulent, the Departments disagree. This assertion is not supported 
by fact. Moreover, denied asylum claims are not necessarily fraudulent. 
If an individual is not granted asylum or related protection by a USCIS 
asylum officer, it may be because they are ineligible for protection or 
have not shown that they merit a discretionary grant of asylum. In 
addressing commenters' concern about the percentage of affirmative 
asylum applications that were not granted by USCIS but subsequently 
granted asylum by EOIR, the Departments note that numerous factors may 
explain this difference in outcomes, including that the IJ may be 
presented with additional evidence and testimony beyond what was heard 
by the asylum officer, and that the IJ may consider the asylum claim in 
light of changed circumstances underlying the application since the 
asylum officer's decision. INA 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D).
    Comment: Many commenters expressed concern for ensuring balance 
between fairness and efficiency. Commenters noted that addressing 
immigration backlogs should be the Departments' priority, but the 
commenters also stated that procedural safeguards must be retained. 
Other commenters supported the implementation of a nonadversarial 
hearing process but asserted that due process concerns related to the 
expedited removal process could undermine the Departments' goals of 
improving fairness or efficiency. Another commenter stated that 
compressed timelines may harm applicants who need time to develop trust 
in their attorneys and the asylum system.
    Response: The Departments agree that addressing the backlog of 
cases should be a priority, and applicants for asylum and related 
protection must be given due process. The Departments anticipate this 
rule will divert certain cases from immigration court and will enhance 
efficient processing of noncitizens subject to the expedited removal 
process, thereby stemming the growth of EOIR's current backlog. The 
Departments also agree that ensuring fairness while being efficient may 
take time to execute on a national scale. It is for that reason that 
the Departments adopt a phased approach such that efficiencies can be 
developed while fairness is not lost due to administrative exigencies. 
While asylum applications are governed by a statutory timeline and this 
rule also uses a timeline to ensure applications stay on track, the 
Departments have incorporated safeguards to ensure that integrity is 
not compromised for the sake of administrative efficiency. 
Specifically, as noted in the regulatory text, the IFR provides for 
appropriate exceptions to the timelines at various stages of the asylum 
case, including submission of late-filed evidence and the timing of 
scheduled hearings.
    Comments: Comments attributed the immigration court backlog to 
``confusing and rapid fluctuations in the agencies' interpretation of 
the particular social group definition,'' changes in DHS prosecutorial 
discretion policies, policies divesting IJs of authority to control 
their dockets, BIA and Attorney General opinions that preclude IJs from 
relying on parties' stipulations, and office and court closures 
resulting from the COVID-19 pandemic.
    Response: The Departments recognize commenters' concerns that 
numerous factors may impact the pending caseload. Accordingly, there 
may be numerous individual and combined approaches for addressing this 
issue. The Departments will not discuss at length the potential factors 
identified by commenters, as they are largely outside of the scope of 
this rulemaking.
    However, the Departments note that the goal of this IFR is to 
implement more efficient procedures for adjudicating certain 
protection-based claims. This will, in turn, help address the pending 
caseload while also ensuring that such cases are given appropriate full 
and fair consideration. To the extent that the IFR limits IJs' 
authority to fully control their dockets, for example by establishing a 
regulatory timeline for scheduling and adjudicating these claims, the 
Departments believe that this regulatory schedule will ensure efficient 
processing of such claims while also permitting sufficient flexibility 
for IJs to deviate from the schedule by granting continuances where 
appropriate.
    Comments: One commenter stated that expediting the processing of 
asylum claims will not solve the current border crisis if the 
Administration also expands the categories of eligibility for asylum 
and stated that an improvement to asylum efficiency requires a 
combination of tightening the screening standards of eligibility for 
asylum and faster processing, including swift removal of those with 
meritless claims.
    Another commenter asserted that the Departments must not only 
consider immigration through a national security perspective, but must 
also pay attention to ``humanitarian protection, legal immigration and 
naturalization, foreign student education and cultural exchange, and 
economic competitiveness.'' The commenter expressed approval of the 
proposal in light of the challenges posed by backlogs. Conversely, at 
least one other commenter stated that the Departments should focus more 
on national security.
    Response: The Departments agree that fair and efficient processing 
of asylum claims is in the interest of the American people. Such a 
program of humanitarian protection not only speaks to American values 
of altruism, inclusiveness, and charity but is necessarily tied to our 
national security and economic interests. See, e.g., Deborah E. Anker &

[[Page 18121]]

Michael H. Posner, The Forty Year Crisis: A Legislative History of the 
Refugee Act of 1980, 19 San Diego L. Rev. 9 (1981) (noting that 
humanitarian protection speaks to American values). National security 
is a critical aspect of the asylum and refugee protection programs, not 
only because the Departments vet applicants to ensure they are not 
ineligible for asylum on national security grounds, but also because 
ensuring a safe haven for forcibly displaced persons around the world 
can promote national security. See, e.g., Elizabeth Neumann, Robust 
Refugee Programs Aid National Security (Dec. 17, 2020), https://immigrationforum.org/wp-content/uploads/2020/12/Robust-Refugee-Programs-Aid-National-Security12_16_20.pdf (last visited Mar. 14, 
2022). In this rule, the Departments are not expanding asylum 
eligibility, but putting forward procedures that will use their 
respective resources to more effectively and efficiently issue 
decisions on protection claims. The Departments believe that such 
efficiencies will allow meritorious claims to be granted more promptly 
and will facilitate removal of those individuals who do not warrant 
protection from removal.
3. Prior Immigration Rulemakings
    Comments: Two commenters expressed support for the immigration 
rulemakings finalized during the prior Administration, stating that 
they kept borders safe and reduced the flow of unauthorized migrants. 
However, one commenter stated that the prior Administration destroyed 
the immigration system by overturning previously accepted legal 
interpretations and implementing procedures to deny people asylum. 
Another commenter expressed support for abandoning regulatory changes 
implemented under the prior Administration that obstructed access to 
asylum relief. One commenter stated that the proposed changes to the 
screening process for people in expedited removal proceedings are an 
important improvement over the previous regulatory changes implemented 
under the prior Administration.
    A commenter asserted that neither the Global Asylum rule nor the 
Security Bars rule should be implemented, as their provisions are 
incompatible with international legal standards and could have risks 
for individuals seeking protection in the United States. Another 
commenter suggested that, to ensure cases move quickly through asylum 
offices and court systems without delay, DHS and DOJ should reverse the 
prior rules and policies such as the TCT Bar rule, Presidential 
Proclamation Bar IFR, Global Asylum rule, and Security Bars rule.
    A commenter stated that two asylum-related rules, the Global Asylum 
rule and Procedures for Asylum and Bars to Asylum Eligibility, 85 FR 
67202 (Oct. 21, 2020) (``Criminal Bars to Asylum rule''), issued by the 
prior Administration were issued in violation of the HSA and the 
Federal Vacancies Reform Act (``FVRA'') and did not provide sufficient 
time for public comment on their ``complicated provisions.'' Therefore, 
the commenter said, both rules are null and void. The commenter also 
asserted that the provision of the Global Asylum rule that forced 
people into asylum-and-withholding-only proceedings was inconsistent 
with the INA, as Congress created a default rule that arriving 
individuals seeking asylum are to be placed in section 240 removal 
proceedings. The commenter also wrote that DHS and DOJ acted 
arbitrarily and capriciously by requiring individuals with credible 
fear findings to be placed in asylum-and-withholding-only proceedings.
    Another commenter stated that DHS should continue to rescind 
employment authorization rules issued by the prior Administration 
because they were issued by agency officials in violation of the 
Administrative Procedure Act (``APA''). With respect to employment 
authorization based on a pending asylum application, the commenter said 
this Administration should immediately restore the 150-day waiting 
period and 30-day processing time requirement for asylum seekers.
    Response: The Departments are revisiting and reconsidering numerous 
asylum-related rulemakings and policies in accordance with Executive 
Order 14010, Creating a Comprehensive Regional Framework to Address the 
Causes of Migration, To Manage Migration Throughout North and Central 
America, and To Provide Safe and Orderly Processing of Asylum Seekers 
at the United States Border (``E.O. on Migration''), and the E.O. on 
Legal Immigration. The E.O. on Migration provides that the ``United 
States will . . . restore and strengthen our own asylum system, which 
has been badly damaged by policies enacted over the last 4 years that 
contravened our values and caused needless human suffering.'' 86 FR 
8267. The E.O. on Migration directs the Departments to determine 
whether to rescind various rules, such as the Presidential Proclamation 
Bar IFR, the TCT Bar rule, and other policies, which the Departments 
have been reviewing and reconsidering. See 86 FR 8269-70. In addition, 
the E.O. on Legal Immigration instructed the Secretary of State, 
Attorney General, and Secretary of Homeland Security to ``identify 
barriers that impede access to immigration benefits and fair, efficient 
adjudications of these benefits and make recommendations on how to 
remove these barriers.'' 86 FR 8277. The Departments have outlined 
several rulemaking efforts in the Spring and Fall 2021 Unified Agenda 
of Regulatory and Deregulatory Actions, consistent with the E.O. on 
Migration and the E.O. on Legal Immigration.\63\ The Departments plan 
to address the Presidential Proclamation Bar IFR, TCT Bar rule, 
Criminal Bars to Asylum rule, and other provisions of the Global Asylum 
rule in separate rulemakings.
---------------------------------------------------------------------------

    \63\ See Executive Office of the President, OMB, OIRA, Spring 
2021 Unified Agenda of Regulatory and Deregulatory Actions, https://www.reginfo.gov/public/do/eAgendaHistory (last visited Mar. 14, 
2022) (select ``Spring 2021 Unified Agenda of Regulatory and 
Deregulatory Actions,'' then select DHS or DOJ); Executive Office of 
the President, OMB, OIRA, Fall 2021 Unified Agenda of Regulatory and 
Deregulatory Actions, https://www.reginfo.gov/public/do/eAgendaMain 
(last visited Mar. 14, 2022) (select DHS or DOJ).
---------------------------------------------------------------------------

    The Departments acknowledge the commenter's concerns about the 
regulatory changes made in the Global Asylum rule, which are enjoined, 
related to placing noncitizens with positive credible fear 
determinations in asylum-and-withholding-only proceedings. As explained 
earlier in this IFR, the Departments are amending regulations to allow 
for USCIS to retain such noncitizens' asylum applications for a 
nonadversarial Asylum Merits interview before an asylum officer, rather 
than initially refer them to an IJ for asylum-and-withholding-only 
proceedings, as provided in the presently enjoined regulation. See 8 
CFR 208.30(f). Meanwhile, DHS maintains the discretion to place a 
covered noncitizen in, or to withdraw a covered noncitizen from, 
expedited removal proceedings and issue an NTA to place the noncitizen 
in section 240 removal proceedings at any time after they are referred 
to USCIS for a credible fear determination. See 8 CFR 208.30(b), (f); 
Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. at 171; Matter of E-R-M- & L-
R-M-, 25 I&N Dec. 520, 523-24 (BIA 2011).
    On December 23, 2020, the Departments published the Security Bars 
rule, which was scheduled to become effective on January 22, 2021. The 
effective date of the Security Bars rule has been delayed several 
times,

[[Page 18122]]

most recently until December 31, 2022.\64\ Thus, the Security Bars rule 
is not currently in effect. The Departments are reviewing and 
reconsidering the Security Bars rule and plan to publish a separate 
NPRM to solicit public comments on whether to modify or rescind the 
Security Bars rule.\65\ The commenters' claims related to these rules, 
the rules related to employment authorization for noncitizens with 
pending asylum applications,\66\ and the HSA, APA, and FVRA fall 
outside of the scope of this rulemaking, and thus are not being 
addressed.
---------------------------------------------------------------------------

    \64\ The Security Bars rule's effective date was first delayed 
by the rule, Security Bars and Processing; Delay of Effective Date, 
86 FR 6847 (Jan. 25, 2021), until March 22, 2021. The effective date 
of the Security Bars rule was again delayed until December 31, 2021, 
Security Bars and Processing; Delay of Effective Date, 86 FR 15069 
(Mar. 22, 2021), and further delayed until December 31, 2022, 
Security Bars and Processing; Delay of Effective Date, 86 FR 73615 
(Dec. 28, 2021).
    \65\ See Executive Office of the President, OMB, OIRA, Spring 
2021 Unified Agenda of Regulatory and Deregulatory Actions, Bars to 
Asylum Eligibility and Procedures, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=1615-AC69 (last visited Mar. 14, 
2022); Executive Office of the President, OMB, OIRA, Fall 2021 
Unified Agenda of Regulatory and Deregulatory Actions, Bars to 
Asylum Eligibility and Procedures, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1615-AC69 (last visited Mar. 14, 
2022).
    \66\ On February 7, 2022, in AsylumWorks v. Mayorkas, No. 20-cv-
3815, 2022 WL 355213, at *12 (D.D.C. Feb. 7, 2022), the United 
States District Court for the District of Columbia vacated two DHS 
employment authorization-related rules entitled ``Asylum 
Application, Interview, and Employment Authorization for 
Applicants,'' 85 FR 38532 (June 26, 2020) (``2020 Asylum EAD 
Rule''), and ``Removal of 30-Day Processing Provision for Asylum 
Applicant-Related Form I-765 Employment Authorization 
Applications,'' 85 FR 37502 (June 22, 2020).
---------------------------------------------------------------------------

    Comments: A commenter expressed support for this Administration's 
decision to vacate an Attorney General ruling issued under the prior 
Administration that prohibited IJs from managing their own dockets 
through administrative closure. The commenter suggested that the 
Administration should promulgate clear rules on administrative closure, 
which can improve inefficiencies and backlogs.
    Response: This comment is beyond the scope of this rule because the 
rule does not involve or impact administrative closure. DOJ plans, 
however, to initiate a rulemaking that provides general administrative 
closure authority to IJs and the BIA.\67\
---------------------------------------------------------------------------

    \67\ Executive Office of the President, OMB, OIRA, Fall 2021 
Unified Agenda of Regulatory and Deregulatory Actions, Appellate 
Procedures and Decisional Finality in Immigration Proceedings; 
Administrative Closure, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1125-AB18 (last visited Mar. 14, 
2022).
---------------------------------------------------------------------------

D. Proposed Changes

1. Applicability
    Comments: A commenter asserted that it would be unfair for asylum 
seekers who have been issued an NTA to be unable to have a 
nonadversarial interview before an asylum officer or a review before an 
IJ. The commenter stated that if the Administration has determined that 
the USCIS interview process is the most efficient and fair, then it 
should also be accessible to noncitizens ICE places in section 240 
proceedings, such as pregnant women and families.
    A commenter asserted that the rule does not remedy the unequal 
treatment of affirmative and defensive cases, remarking that it instead 
goes halfway, by saying that some noncitizens in expedited removal--
those referred for hearings before asylum officers--could seek a 
``partial review'' with an IJ instead of the ``full case review'' that 
those in the affirmative asylum process would have if they were not 
granted asylum by USCIS. Additionally, a commenter remarked that it is 
unclear why the rule differentiates between ``normal'' cases and those 
of stowaways and asylum seekers physically present in or arriving in 
the Commonwealth of the Northern Mariana Islands.
    Response: The Departments disagree that it is unfair for 
noncitizens who are placed in section 240 removal proceedings to 
continue to have their claims heard before IJs rather than in 
nonadversarial interviews before USCIS in the first instance. It is 
well established that DHS officials have broad discretion to decide who 
should be subject to arrest, detainers, removal proceedings, and the 
execution of removal orders. See Arizona v. United States, 567 U.S. 
387, 396 (2012) (``A principal feature of the removal system is the 
broad discretion exercised by immigration officials. Federal officials, 
as an initial matter, must decide whether it makes sense to pursue 
removal at all.'' (citation omitted)). USCIS, in particular, has the 
prosecutorial discretion, as appropriate, to place a covered noncitizen 
in, or to withdraw a covered noncitizen from, expedited removal 
proceedings and issue an NTA to place the noncitizen in section 240 
removal proceedings at any time after they are referred to USCIS for a 
credible fear determination. See, e.g., Matter of E-R-M-& L-R-M-, 25 
I&N Dec. at 523-24. Such discretion is needed because there may be 
circumstances in which it may be more appropriate for a noncitizen's 
protection claims to be heard and considered in the adversarial process 
before an IJ in the first instance (for example, in cases where a 
noncitizen may have committed significant criminal activity, have 
engaged in past acts of harm to others, or pose a public safety or 
national security threat). In addition, the Departments anticipate that 
DHS will also need to continue to place many noncitizens receiving a 
positive credible fear determination into ordinary section 240 removal 
proceedings while USCIS takes steps needed to allow for full 
implementation of the new process for all cases. This rule establishes 
an appropriate alternative to the exclusive use of ordinary section 240 
removal proceedings. Nevertheless, noncitizens who are placed into 
streamlined section 240 removal proceedings will continue to have 
access to the same procedural protections that have been in place for 
asylum adjudications for many years. This rule authorizes the 
Departments to employ a fair and efficient procedure for individuals to 
seek protection, which includes opportunities for applicants to present 
their claims fully and fairly before asylum officers in a 
nonadversarial setting and, if not granted asylum, before IJs in 
streamlined section 240 removal proceedings. The comment related to the 
processing of claims of stowaways and noncitizens arriving from the 
Commonwealth of the Northern Mariana Islands falls outside of the scope 
of this rulemaking and, therefore, is not being addressed. As noted in 
the NPRM, this IFR would not apply to (1) stowaways or (2) noncitizens 
who are physically present in or arriving in the Commonwealth of the 
Northern Mariana Islands who are determined to have a credible fear. 
Such individuals would continue to be referred to asylum-and-
withholding-only proceedings before an IJ under 8 CFR 208.2(c).
2. Parole
a. General Comments on Parole
    Comments: Several commenters provided general comments on parole or 
the rule's proposed change to the regulations governing the 
circumstances in which individuals in expedited removal proceedings may 
be paroled. Many of these commenters expressed opposition to DHS 
loosening the parole requirements or paroling noncitizens ``simply 
because they lack resources to detain them.'' Some of these commenters 
expressed doubt about the legality of paroling noncitizens simply 
because detention is unavailable or impractical.
    Response: The Departments acknowledge and take seriously the 
concerns expressed. The Departments

[[Page 18123]]

note, however, that the comments suggesting that the Departments had 
proposed for parole to be automatically granted upon a determination 
that detention is ``unavailable or impracticable'' are mistaken; as 
proposed, parole would be ``in accordance with section 212(d)(5) of the 
Act and Sec.  212.5 of this chapter,'' 86 FR 46946 (8 CFR 235.3 
(proposed)), which impose additional prerequisites to the exercise of 
parole authority. In this IFR, DHS is finalizing a change to the DHS 
regulations that will make even clearer that parole of noncitizens who 
are being processed under section 235(b)(1) of the Act, 8 U.S.C. 
1225(b)(1), may be granted ``only on a case-by-case basis for urgent 
humanitarian reasons or significant public benefit.'' INA 212(d)(5)(A), 
8 U.S.C. 1182(d)(5)(A). Because the regulatory text that DHS is 
finalizing no longer specifies that parole may be considered when 
detention is ``unavailable or impracticable,'' the Departments decline 
to address in detail commenters' arguments respecting that particular 
language. Nevertheless, the Departments have explained the longstanding 
regulatory and policy basis, consistent with the statutory authority, 
for taking detention resources into consideration when making parole 
determinations. See supra Section III.F of this preamble.
b. Change in Circumstances Under Which Parole May Be Considered
    Comments: Many commenters either supported the proposed expansion 
of the circumstances under which parole may be considered or urged the 
adoption of what they characterize as a broader standard, consistent 
with section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5). Some commenters 
urged DHS to adopt the long-standing parole standards applicable in 
other circumstances described in 8 CFR 212.5(b). Commenters stated that 
they welcomed a change that would allow families the possibility of 
parole--or that would allow for greater availability of parole in 
general--and help ensure the availability of detention space for those 
who pose the greatest threats to national security and public safety. 
One commenter stated that the proposed change would be an effective 
step toward a policy that, where possible, ensures noncitizens' 
compliance with appointments and court dates and timely departure from 
the United States, if ordered removed, through supervision and case 
management rather than through detention. Numerous commenters stated 
that, while they welcomed the proposed rule's expansion of the 
circumstances in which parole may be considered, the proposed 
provisions were too narrow and should be amended to allow consideration 
of parole in a broader range of circumstances, consistent with the 
breadth of DHS's statutory parole authority under section 212(d)(5) of 
the Act, 8 U.S.C. 1182(d)(5). Commenters stated that adopting the 
standard of 8 CFR 212.5(b), which would allow parole consideration, 
among other things, when continued detention is not in the public 
interest, would give the agency more flexibility, achieve a uniform 
regulatory standard across the removal process, and promote family 
stability.
    A few commenters requested that DHS establish a presumption of 
parole, with DHS bearing a burden of demonstrating by clear and 
convincing evidence that there is a need for detention based on the 
public interest. Commenters also suggested that this standard should 
apply to all asylum seekers who establish a credible fear during the 
credible fear interview, regardless of their manner of entry, and 
regardless of whether they are referred for section 240 proceedings or 
for an Asylum Merits interview. One commenter urged that the 
regulations should support a presumption that detention is not in the 
public interest in cases of survivors fleeing gender-based violence, as 
well as for others who have established a credible fear. Some 
commenters also asked the Departments to clarify that asylum seekers 
should only be detained as a last resort. Similarly, one commenter 
stated that detention should only be used when it is demonstrated that 
an individual is a danger to the community or a flight risk that cannot 
be mitigated by other conditions. Another commenter stated that 
``detailing clear and consistent provisions for parole and detention'' 
would be more efficient than case-by-case determinations. One commenter 
urged that the regulations at 8 CFR 235.3(b) should be amended to 
emphasize release from custody at the earliest possible stage of 
proceedings and asserted that parole eligibility should not be 
contingent on the outcome of credible fear screening.
    Other commenters opposed the proposed expansion of the 
circumstances under which parole may be considered. Some commenters 
opposed the NPRM on the ground that any policy that makes it more 
likely that noncitizens encountered at the border will be released from 
custody will, in the commenters' view, encourage illegal immigration 
and harm the integrity of the immigration system. In explanation, one 
commenter discussed past policy changes related to parole and stated 
that the lesson to be learned is that as soon as a policy is enacted 
that makes it more likely that asylum seekers will be released from DHS 
custody, the number of asylum seekers who enter to exploit that policy 
``balloons.'' Other commenters expressed concern that noncitizens who 
are aware they most likely will not be granted asylum will have a 
strong incentive to abscond. Citing the statistic that 38 percent of 
people who receive a positive credible fear determination and are 
released do not file an asylum application, a commenter expressed 
concern about a more permissive approach to parole, especially if 
individuals realize that their cases will no longer take years to 
resolve and thus their best chance for remaining in the United States 
would be to abscond.
    Response: The Departments acknowledge the range of views expressed, 
from support for the proposed regulatory amendment, to support for 
adopting instead the standard of 8 CFR 212.5(b), to support for more 
expansive use of parole for noncitizens subject to INA 235, 8 U.S.C. 
1225, to opposition to any change that would expand the circumstances 
under which parole may be considered for such individuals. As explained 
above, having considered all comments received, the Departments agree 
with those commenters who suggested that the standard of 8 CFR 
212.5(b)--the standard already applicable to, e.g., noncitizens who 
have received a positive credible fear determination and whose cases 
are pending--should replace the more constrained standard of 8 CFR 
235.3(b)(2)(iii) and (b)(4)(ii), which allow for parole only for 
medical emergency or legitimate law enforcement objective. The 
Departments agree that the standard of 8 CFR 212.5(b), allowing for 
parole for urgent humanitarian reasons or significant public benefit, 
will give DHS more flexibility to delineate the circumstances in which 
parole may be considered, on a case-by-case basis and consistent with 
section 212(d)(5)(A) of the Act, 8 U.S.C. 1182(d)(5)(A), for this 
population. That said, the Departments emphasize that individuals who 
have not yet received a positive credible fear determination may not be 
similarly situated to individuals who have, as those pending a credible 
fear interview may shortly be subject to a final removal order. As a 
result, subsequent directives or guidance will clarify how officers and 
agents may determine whether ``continued detention is not in the public 
interest,'' 8 CFR 212.5(b)(5), for noncitizens who are being processed

[[Page 18124]]

under INA 235(b)(1), 8 U.S.C. 1225(b)(1), and who have not yet received 
a positive credible fear determination for purposes of deciding whether 
parole for urgent humanitarian reasons or significant public benefit 
would be warranted. Thus, while the IFR establishes a uniform 
regulatory standard in the DHS regulations for consideration of parole 
for individuals described in 8 CFR 235.3(b) (i.e., those in the 
expedited removal process) and 8 CFR 235.3(c) (i.e., ``arriving 
aliens'' placed in section 240 removal proceedings), application of 
that standard on a case-by-case basis will appropriately account for 
individualized considerations particular to noncitizens who have not 
already been determined to have a credible fear of persecution or 
torture, as explained above in Section III.F of this preamble.
    The Departments disagree with the commenters who urged that the 
regulations at issue should be amended to establish a presumption of 
parole, or to provide that detention will be used only as a last 
resort. These commenters did not explain how the standards they 
proposed would be permitted under section 212(d)(5)(A) of the Act, 8 
U.S.C. 1182(d)(5)(A), and the Departments conclude that such options 
would be inconsistent with DHS's discretionary parole authority.
    The Departments also disagree with the commenters who opposed 
loosening current regulatory restrictions on the exercise of parole 
authority on the ground that doing so would encourage illegal 
immigration and harm the integrity of the immigration system. These 
comments do not account for the fact that the amended standard for 
parole applies only to individuals being processed under the 
Departments' expedited removal authority under section 235(b)(1) of the 
Act, 8 U.S.C. 1225(b)(1), and that the effect of the amendment will be 
to allow DHS to process more individuals through expedited removal 
rather than referring them to lengthier section 240 removal 
proceedings. As a result, individuals who express no fear of 
persecution or torture or who are determined not to have a credible 
fear can be ordered removed more promptly, which should discourage such 
individuals from seeking to enter the United States and thereby improve 
the integrity of the immigration system. The Departments acknowledge 
commenters' contention that increases in the number of noncitizens at 
the border have been observed after various past policy changes. 
However, considering the many complex factors that may affect the rates 
of individuals seeking to enter the United States and make a claim for 
asylum, the Departments disagree that this perceived correlation 
amounts to evidence of causation or to a compelling reason to depart 
from a policy change that is otherwise justified. The Departments 
acknowledge the concern expressed by some commenters about the risk 
that paroled individuals may abscond but emphasize that the regulations 
will continue to provide that parole is available only to those 
noncitizens who present ``neither a security risk nor a risk of 
absconding.'' With regard to the commenter who suggested that 
noncitizens who do not file an asylum application after receiving a 
positive credible fear determination mean to abscond rather than pursue 
an asylum claim, the Departments note that failure to timely submit an 
asylum application after receiving a positive credible fear 
determination may be due to a lack of understanding or inability to 
obtain the language or other assistance needed to complete and file a 
Form I-589, Application for Asylum and for Withholding of Removal, or 
for other reasons not indicative of an intent to abscond. The 
Departments are unaware of, and commenters did not provide, any 
information showing that a noncitizen's intention to abscond can 
reasonably be inferred from a failure to timely submit an asylum 
application. In addition, DHS officials, in their discretion, may 
impose reasonable conditions on the grant of parole (including, e.g., 
periodic reporting to ICE) to ensure that the individual will appear at 
all hearings and for removal from the United States when required to do 
so. See INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); 8 CFR 212.5(c)-(d).
    Comments: Some commenters stated that the NPRM would establish a 
subjective, ambiguous standard for when parole may be allowed. 
Specifically, commenters stated that the proposed rule did not address 
what condition or set of conditions would be sufficient for DHS to 
consider detention ``impracticable'' and recommended that the rule 
utilize more definite language. Commenters also remarked that 
``unavailable'' is not clearly defined and within DHS's control to an 
extent that the proposed standard is ``ripe for agency abuse.''
    Response: Although the Departments disagree that the standard 
proposed in the NPRM was ``ripe for agency abuse,'' the Departments 
acknowledge commenters' uncertainty about the contours of the proposed 
standard. The Departments are not finalizing the proposed amendment 
that would have allowed parole consideration if ``detention is 
unavailable or impracticable'' and, thus, need not further address that 
standard. Instead, DHS is finalizing an amendment that would allow for 
consideration of parole under the existing standards in 8 CFR 212.5(b), 
which, as explained in Section III.F above, includes parole on a case-
by-case basis when continued detention is not in the public interest. 
The longstanding authority for DHS to take its detention capacity into 
account when making parole determinations is explained above, and 
future directives and guidance will build upon existing directives and 
guidance documents that are well understood by DHS officers and agents 
even as they are applied to the populations affected by this rule.
    Comments: At least one commenter offered the following specific 
suggestions: That 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii) be amended to 
clarify that DHS should parole people if continued detention is not in 
the public interest; that 8 CFR 235.3(c) be amended to clarify that any 
asylum seeker who is placed in section 240 removal proceedings may be 
released on parole in the public interest, regardless of their manner 
of entry, by deleting the phrase ``arriving alien(s)'' and replacing it 
with ``noncitizen(s)''; and that regulatory language be revised to 
ensure that all asylum seekers who establish a credible fear of 
persecution or torture are eligible for parole under 8 CFR 212.5(b)(5), 
regardless of whether they are referred to ordinary section 240 removal 
proceedings or have their cases retained by USCIS for an Asylum Merits 
interview.
    Response: DHS is amending 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii) to 
permit parole consideration in accordance with the longstanding 
regulation at 8 CFR 212.5(b), which includes parole in circumstances 
where continued detention is not in the public interest. The 
Departments emphasize that--consistent with INA 212(d)(5)(A), 8 U.S.C. 
1182(d)(5)(A), and 8 CFR 212.5(b)--parole will be granted ``only on a 
case-by-case basis for urgent humanitarian reasons or significant 
public benefit.''
    The Departments decline the commenter's other suggestions. First, 
the commenter's suggestion to amend 8 CFR 235.3(c) in the manner 
suggested is outside the scope of this rule. This rule concerns only 
noncitizens processed under the expedited removal provisions of INA 
235(b)(1), 8 U.S.C. 1225(b)(1), whereas 8 CFR 235.3(c) generally 
pertains to ``arriving aliens'' who are placed in section 240 
proceedings. Second, 8 CFR 208.30(f) already provides that ``[i]f an 
alien, other than

[[Page 18125]]

an alien stowaway, is found to have a credible fear of persecution or 
torture,'' then ``[p]arole . . . may be considered only in accordance 
with section 212(d)(5) of the Act and 8 CFR 212.5'' to cover those who 
are placed directly into section 240 removal proceedings. DHS, 
moreover, is amending 8 CFR 212.5 to provide that the standard of 8 CFR 
212.5(b) applies to noncitizens detained pursuant to 8 CFR 235.3(b), as 
well as 8 CFR 235.3(c). Finally, the Departments are adding language to 
8 CFR 235.3(c) to allow for parole under the standard of 8 CFR 212.5(b) 
for noncitizens whose asylum cases are retained by or referred to USCIS 
for an Asylum Merits interview under this rule after a positive 
credible fear determination. Thus, regardless of whether the 
noncitizen's asylum case is retained by USCIS for adjudication on the 
merits or referred to immigration court, noncitizens who receive a 
positive credible fear determination are generally eligible for parole 
consideration under the standard of 8 CFR 212.5(b).
    Comments: Some commenters stated that the proposed rule did not 
clearly indicate whether parole would be available (and if so, under 
what standard) for individuals who receive a positive credible fear 
determination and are placed into the new Asylum Merits process. These 
commenters suggested specific revisions to the text of current 8 CFR 
235.3(c). A few other commenters also expressed doubt that individuals 
who receive a positive credible fear determination and are placed into 
the new Asylum Merits process would have access to parole.
    Response: In the IFR, DHS is clarifying that parole will be 
available for individuals who receive a positive credible fear 
determination and are placed into the new Asylum Merits process under 
the standard of 8 CFR 212.5(b)--that is, under the same standard as for 
individuals who receive a positive credible fear hearing and are 
referred to immigration court. See 8 CFR 208.30(f), 8 CFR 235.3(c).
    Comments: Some commenters asserted that the proposed rule's 
expansion of parole would be unlawful and unauthorized by Congress. One 
commenter stated that the proposed rule is ultra vires, contending that 
INA 235(b)(1), 8 U.S.C. 1225(b)(1), provides for the detention of 
noncitizens in expedited removal proceedings throughout the entire 
process, from apprehension to a determination on any subsequent asylum 
claim. This commenter also discussed the statutory history of the 
parole provision and claimed that it shows a congressional intent that 
parole be used in a restrictive manner. Other commenters urged that 
authorizing DHS to parole asylum seekers into the United States 
whenever DHS determines that detention is ``unavailable or 
impracticable'' would directly conflict with the INA and congressional 
intent to delegate only limited parole authority to DHS. One of these 
commenters stated that the rationale behind the proposed rule is 
``pretextual at best'' and remarked that it simply provides a 
convenient, albeit ultra vires, reason to release asylum seekers from 
custody. Another commenter stated that, because current rates of 
migrant encounters mean that DHS will never have enough space to detain 
every person, detention would always be unavailable or impracticable, 
and more and more noncitizens would be released. Several commenters 
further stated that detention capacity is within DHS's control and that 
it can make space unavailable to effectively make the detention of any 
noncitizen unavailable or impractical, which would violate the INA.
    Response: The Departments disagree that the expansion of the 
circumstances in which parole may be considered for a noncitizen in 
expedited removal proceedings proposed in the NPRM would be unlawful or 
ultra vires and also disagree with the unsupported assertion that the 
Departments' rationale is in any way ``pretextual.'' As explained 
above, Congress has given DHS discretion to ``parole'' a noncitizen who 
is an applicant for admission ``only on a case-by-case basis for urgent 
humanitarian reasons or significant public benefit.'' INA 212(d)(5)(A), 
8 U.S.C. 1182(d)(5)(A). The Departments have always understood this 
parole authority to apply to individuals detained pursuant to the 
detention provisions of INA 235, 8 U.S.C. 1225, and the Supreme Court 
has endorsed this interpretation in Jennings v. Rodriguez, 138 S. Ct. 
830, 837, 844 (2018).
    This rule amends DHS regulations to replace the exceptionally 
narrow standard governing the circumstances in which parole may be 
allowed for noncitizens being processed under expedited removal, and 
who have not yet received a credible fear determination, see 8 CFR 
235.3(b)(2)(iii), (b)(4)(ii), with the broader regulatory standard that 
already governs the circumstances in which parole may be allowed after 
a noncitizen has received a positive credible fear determination, see 8 
CFR 208.30(f)(2), 212.5(b). This broader regulatory standard is fully 
consistent with DHS's statutory parole authority. While the agency 
previously drew a distinction between the parole standard for those 
pending a credible fear determination (or whose inadmissibility is 
still being considered or subject to an expedited removal order) and 
those found to have a credible fear--perhaps as a matter of policy--
there is no legal requirement for this distinction. The parole statute 
does not distinguish between the various procedural postures of 
noncitizens covered by INA 235(b), 8 U.S.C. 1225(b), or specifically 
reference any of the detention provisions at INA 235(b), 8 U.S.C. 
1225(b). See INA 212(d)(5), 8 U.S.C. 1182(d)(5). There is, therefore, 
no reason on the face of the statute to read the detention provision at 
INA 235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV), any 
differently from the identically worded detention provisions in INA 
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), and INA 235(b)(2)(A), 8 
U.S.C. 1225(b)(2)(A), which the Supreme Court has endorsed as subject 
to the Secretary's full statutory release-on-parole authority. See 
Jennings, 138 S. Ct. at 844; see also Clark v. Martinez, 543 U.S. 371, 
378 (2005) (``To give these same words a different meaning for each 
category [of person it applied to] would be to invent a statute rather 
than interpret one.'').
    This amendment would also allow DHS, in making parole 
determinations for individual noncitizens on a case-by-case basis, to 
utilize its limited detention bed space for noncitizens found to be a 
flight risk or danger to the community, as well as permit the DHS 
officers to devote more time to their handling of assigned detained 
cases--allowing for more efficient processing of issues, including 
responding to inquiries, requests for release, and securing travel 
documents for noncitizens subject to orders of removal. DHS would also 
be able to reallocate detention resources to other areas, such as 
alternatives to detention, which are not as cost prohibitive.
    The Departments reject the contention that DHS's control over its 
detention capacity is so complete that it is capable of increasing the 
use of parole by artificially reducing available bedspace. The 
Department's capacity to detain an individual on any given day is 
determined by many different factors, including the availability of 
appropriated funds, the number and demographic characteristics of 
individuals in custody as well as those encountered at or near the 
border or within the interior of the United States, and the types of 
facilities with available bedspace. Capacity restrictions at individual 
facilities imposed for a variety of reasons ranging from public

[[Page 18126]]

health requirements to court-ordered limitations also constrain the 
availability of detention space.
    Because the regulatory text that DHS is finalizing no longer 
specifies that parole may be considered when detention is ``unavailable 
or impracticable,'' the Departments decline to address in detail 
commenters' arguments respecting that particular language.
    Comments: A few commenters that encouraged DHS to amend the 
regulations to provide for parole when continued detention is not in 
the public interest stated that this term should be interpreted to 
encompass, among other things, the impact of continued detention on an 
individual's or their family's physical or mental health, safety, well-
being, family unity, and other considerations.
    Response: As explained above, DHS intends to use further directives 
or guidance to promote fair and consistent determinations as to when 
``continued detention is not in the public interest'' for noncitizens 
in expedited removal who have not yet received a credible fear 
determination. The Departments recognize that the term ``public 
interest'' is open to interpretation but note that the noncitizen's 
personal interests, while potentially relevant, are not determinative 
of whether continued detention is not in the public interest.
    Comments: A few commenters stated that, although any change that 
increases DHS's ability to grant parole seems positive on its face, the 
proposed rule still leaves the decision of whether to parole an 
individual up to the discretion of a DHS officer. Commenters expressed 
concern about this discretion based on their experience with parole 
decisions they described as arbitrary or biased. Commenters recommended 
that the rule create accountability mechanisms and clear decision-
making procedures to ensure parole requests are decided consistently, 
without bias or undue political influence, or in pro forma fashion 
without regard to the substance of the requests. For example, one 
commenter suggested there be a mandate that ICE provide a timely 
response in a language the applicant can understand that includes 
individualized analysis of the reasons why parole was denied. Another 
commenter recommended that DHS amend its regulations to include a 
specific time frame within which ICE officers must review parole 
requests and issue parole decisions, a mandate that parole interviews 
must take place before the issuance of a denial of a parole request, a 
requirement of detailed recordkeeping to help provide transparency and 
oversight of parole decisions, and an independent department charged 
with routinely reviewing each ICE field office's parole grant and 
denial rates. A commenter asked that the rule specify to whom at the 
agency asylum seekers should submit their parole requests, which 
officers make these decisions, and what documentation should be 
included or can be provided as satisfactory alternatives.
    Response: The NPRM proposed to amend, and this IFR will amend, the 
DHS regulations specifying the circumstances in which parole may be 
considered for noncitizens in expedited removal proceedings. 
Additionally, consistent with the INA, DHS's exercise of discretion 
will be conducted on a case-by-case basis, given the unique factual 
circumstances of each case and to ensure the requirements for parole 
have been thoroughly considered and addressed. Comments that suggest 
new regulatory provisions to establish accountability mechanisms and 
decision-making procedures are therefore beyond the scope of the 
current rulemaking.
    Comments: One commenter urged that the rule should not include 
detention availability as a factor for parole, since the determination 
of whether to deprive an individual of their liberty ``should never be 
contingent on or determined by the budget or physical infrastructure of 
a Federal agency.'' Another commenter expressed concern that the 
proposed rule's allowance for parole consideration when detention is 
unavailable or impracticable would lead to increased calls for 
detention beds, an outcome the commenter opposed. A commenter asserted 
that, under the expanded grounds for parole, detention should only be 
considered ``practical'' if asylum seekers are provided with the 
ability to access medical care, legal counsel, and language assistance.
    Response: Because the regulatory text that DHS is finalizing no 
longer specifies that parole may be considered when detention is 
``unavailable or impracticable,'' the Departments decline to address in 
detail commenters' arguments respecting that particular language. With 
regard to the comment premised on the idea that detention ``should 
never be contingent on or determined by the budget or physical 
infrastructure of a Federal agency,'' the Departments disagree. By 
statute, a noncitizen who is being processed under the expedited 
removal provisions of section 235(b)(1) of the Act, 8 U.S.C. 
1225(b)(1), is subject to detention unless DHS exercises its discretion 
to ``parole'' the noncitizen ``only on a case-by-case basis for urgent 
humanitarian reasons or significant public benefit.'' INA 212(d)(5)(A), 
8 U.S.C. 1182(d)(5)(A). DHS's resources may appropriately be considered 
in determining whether to exercise parole authority pursuant to section 
212(d)(5)(A) of the Act, 8 U.S.C. 1182(d)(5)(A). Indeed, the 
availability of DHS detention resources is integral from an operational 
standpoint. For example, there may be a limited number of available 
detention beds in a particular facility or an insufficient number of 
DHS officers available to handle the volume of detainees, thereby 
hampering DHS's ability to promptly and efficiently process cases. DHS 
can focus its detention resources on those noncitizens found to be a 
flight risk or danger to the community, particularly when there are a 
limited number of detention beds.
    Comment: A few commenters stated that the proposed rule's expansion 
of the circumstances in which parole may be allowed is a welcome 
development but requested clarification regarding how the changed 
parole standard will be integrated into the proposed adjudicative 
process. Specifically, a commenter inquired whether a paroled person 
would be subject to the new procedure established by the rule and, if 
so, when and where the credible fear interview and Asylum Merits 
interview would take place. The commenter also asked whether a paroled 
person would be forced to remain near where they were detained and what 
the process would be for changing the venue of the asylum interview.
    Response: The procedure established by the rule is available to 
parolees. If the person or family unit is paroled prior to their 
credible fear interview, the Departments anticipate that their credible 
fear interview and Asylum Merits interview, if applicable, will take 
place at a USCIS Asylum Office near their destination within the United 
States and that such persons would not be required to remain in the 
vicinity of where they were detained. DHS anticipates that the credible 
fear interview will normally take place within 30 days of referral of 
the noncitizen to USCIS. DHS officials, in their discretion, may impose 
reasonable conditions on the grant of parole (including, e.g., periodic 
reporting to ICE) to ensure that the individual will appear at all 
hearings and for removal from the United States when required to do so. 
See INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); 8 CFR 212.5(c)-(d).

[[Page 18127]]

c. Availability of Employment Authorization for Those in Expedited 
Removal Who Have Been Paroled From Custody
    Comments: Several commenters urged that the proposed regulations 
should be amended to provide for parole-based employment authorization 
eligibility for all people whom DHS paroles from detention, to respect 
the dignity of asylum seekers and ensure that they can support 
themselves and their families. Several commenters asserted that 
ensuring parole-based eligibility for an employment authorization 
document (``EAD'') for asylum seekers released from detention would 
help them secure housing, food, health care, and other necessities. 
Commenters discussed how authorizing asylum seekers to work at the 
earliest practicable stage would offer a variety of benefits to both 
asylum seekers and host communities, including helping to reduce their 
social and economic exclusion; reduce the risk that they experience 
extreme poverty, food insecurity, or homelessness; and alleviate the 
loss of skills, low self-esteem, and mental health problems that often 
accompany prolonged periods of idleness. One commenter also stated that 
barriers to employment authorization often impede asylum seekers' 
access to counsel or other services, such as food assistance, and 
remarked that asylum seekers' inability to work may have long-term 
negative impacts on their economic prospects and mental health. A 
commenter asserted that forcing parolees to wait for months or years 
for an adjudication of their claim without any means to find legal 
employment lends itself to abusive and harmful employment arrangements 
that are marked by unscrupulous employers taking advantage of asylum 
seekers' desperation. A commenter stated that the denial of EADs to 
parolees would have a particularly negative impact on LGBT migrants, as 
they often travel alone with no support system.
    A commenter noted that the EAD is often the only government-issued 
identification an asylum seeker may have in their possession, and 
individuals forced to wait to apply for employment authorization would 
thus likely be without a valid identification, leading to challenges 
when securing housing, opening bank and utility accounts, or 
encountering law enforcement. The commenter concluded that limiting 
employment authorization for individuals released under 8 CFR 
235.3(b)(4)(ii) would endanger the lives of asylum seekers and their 
families.
    On the other hand, another commenter noted that it supports the 
decision to restrict EAD eligibility ``solely on the basis of receiving 
parole'' and recommended that this decision be maintained. The 
commenter asserted that DHS does not have the authority to grant EADs 
to asylum seekers for whom the INA does not provide such eligibility or 
for whom the INA expressly grants the Secretary discretionary 
authority. The commenter argued that it would be unreasonable to 
conclude that Congress authorized DHS to use parole to permit an 
indefinite number of asylum seekers to enter the United States, in its 
discretion, and to allow them to engage in employment. The commenter 
also said providing EAD eligibility ``solely on the basis of being 
paroled'' would serve as a powerful pull factor for illegal 
immigration.
    Several commenters addressed the waiting period for EAD eligibility 
for asylum seekers. Some commenters argued that the one-year waiting 
period for EAD eligibility based on a pending asylum application, 
pursuant to the current DHS regulations at 8 CFR 208.7, is excessive 
and inhumane. One commenter stated that individuals forced to wait a 
year to apply for employment authorization would likely be unable to 
secure necessities such as food, shelter, and medical care. However, 
another commenter maintained that, per section 208(d)(2) of the Act, 8 
U.S.C. 1158(d)(2), the Secretary cannot grant employment authorization 
to an asylum applicant until at least 180 days after the filing of the 
application for asylum. The commenter encouraged DHS to abide by the 
INA's 180-day restriction, arguing that failing to do so would 
encourage illegal immigration and fraud in the asylum system.
    A commenter suggested that DHS require by regulation that parole-
based EADs be adjudicated within 30 days of receipt, claiming that 
delays in USCIS adjudication force individuals to wait for months for 
parole-based employment authorization. A commenter, in asserting that 
the proposed rule's parole provision is an ultra vires application, 
stated that the proposed rule does not actually limit employment 
authorization. The commenter stated that, even though the proposed rule 
provides that parole would not serve as an independent basis for 
employment authorization, nothing in 8 CFR 274a.12(c)(8) prohibits 
applications filed after the asylum seeker files a completed asylum 
application.
    Response: The Departments acknowledge the multiple comments both in 
support of and in opposition to the NPRM's provision restricting EAD-
eligibility based on parole for this subset of parolees. The 
Departments have considered comments highlighting potential benefits 
that would accrue to asylum applicants and their support networks if 
they were to receive employment authorization earlier as well as the 
potential drawbacks of providing earlier employment authorization and 
balanced those benefits and drawbacks in light of the broader interests 
served in the rulemaking. On balance, the Departments believe that this 
rulemaking's overall framework promoting efficiency in the adjudication 
of protection-related claims and the overall statutory scheme with 
respect to obtaining employment authorization based on pending asylum 
applications is best served by finalizing the DHS regulatory language 
in the NPRM for several reasons.
    First, the Departments note that the overall goal of the rulemaking 
is to ensure that noncitizens receive final decisions on their claims 
for protection as quickly and efficiently as possible, consistent with 
fundamental fairness, and ensuring that noncitizens appear for any 
interviews and hearings is key to this process. Providing parole-based 
employment authorization to noncitizens who are in expedited removal or 
in expedited removal with a pending credible fear determination (that 
is, employment authorization with no prerequisite waiting period) risks 
incentivizing more individuals to enter the United States and seek out 
this process in the hopes of obtaining parole under this framework 
while disincentivizing appearance. Moreover, individuals for whom 
employment authorization is the most salient benefit of securing 
asylum, if eligible, would have less of an incentive to appear for 
subsequent interviews and hearings. See 8 CFR 235.3(b)(2)(iii), 
(b)(4)(ii). Second, the Departments believe that their approach is 
consistent with the provisions in section 208(d)(2) of the Act, 8 
U.S.C. 1158(d)(2), regarding a waiting period for employment 
authorization for asylum applicants, which states that ``[a]n applicant 
who is not otherwise eligible for employment authorization shall not be 
granted such authorization prior to 180 days after the date of filing 
of the application for asylum.'' INA 208(d)(2), 8 U.S.C. 1158(d)(2). 
The Departments recognize that the ``otherwise eligible'' language in 
section 208(d)(2) of the Act, 8 U.S.C. 1158(d)(2), could be read to 
encompass employment authorization based on

[[Page 18128]]

parole. However, noncitizens paroled with a pending credible fear 
determination are all seeking asylum (or related protection) and are 
being paroled on a case-by-case basis for urgent humanitarian reasons 
or significant public benefit while they await a screening interview on 
their protection claims. The Departments note that potential benefits 
associated with more expeditious employment authorization are expected 
under the new process in that the waiting period will begin running 
sooner here as an application will be considered filed at the time of a 
positive credible fear determination. Additionally, eligible 
noncitizens will likely receive a final determination granting relief 
or protection, and employment authorization incident to status, prior 
to being eligible for an employment authorization under 8 CFR 
274a.12(c)(8) based on a pending asylum application.
    With respect to waiting periods for asylum-based EADs generally, 
the Departments note that on February 7, 2022, in AsylumWorks v. 
Mayorkas, No. 20-cv-3815, 2022 WL 355213, at *12 (D.D.C. Feb. 7, 2022), 
the United States District Court for the District of Columbia vacated 
two DHS employment authorization-related rules entitled ``Asylum 
Application, Interview, and Employment Authorization for Applicants,'' 
85 FR 38532 (June 26, 2020), and ``Removal of 30-Day Processing 
Provision for Asylum Applicant-Related Form I-765 Employment 
Authorization Applications,'' 85 FR 37502 (June 22, 2020). Finally, the 
Departments disagree with the commenter that states that the Secretary 
of Homeland Security lacks the discretionary authority to grant 
employment authorization to those paroled. The Departments note that 
the Secretary of Homeland Security, as a matter of policy for the 
reasons outlined above, is exercising his discretionary authority 
narrowly as to noncitizens who are in expedited removal or in expedited 
removal with a pending credible fear determination and who are paroled 
from custody.
d. Other Comments on Proposed Approach to Parole
    Comments: A few commenters urged that detained asylum seekers 
should have access to bond determination hearings, as well as regular 
opportunities to challenge continued detention. Another commenter 
stated that regulations should ensure meaningful access to counsel for 
those in immigration detention, readily accessible confidential 
attorney-client meeting spaces, confidential free telephone and 
televideo communication options, as well as minimum restrictions on 
visitation.
    Response: These comments are beyond the scope of the current 
rulemaking, given that the rule neither addresses bond determinations 
nor conditions for those held in immigration detention.
    Comments: One commenter stated that the proposed rule would 
essentially deny all individuals the right to have their custody 
reviewed by a neutral arbiter and urged that the regulations should 
require a neutral decisionmaker. The commenter suggested that IJs 
should be given the power to review and revise parole decisions made 
under the proposed regulations.
    Response: These comments are beyond the scope of the current 
rulemaking, which amends only the regulatory provisions specifying the 
circumstances in which parole may be considered for noncitizens subject 
to expedited removal.
    Comments: A commenter stated that the unprecedented surge in family 
unit migration, which the commenter attributed to the Flores Settlement 
Agreement, is endangering children at the border and that such 
migration will continue to soar unless the dynamics causing this trend 
are changed. The commenter asserted that the Departments should 
``address'' the Flores Settlement Agreement before taking any steps to 
expand the availability of parole for asylum seekers and suggested that 
the agencies promulgate regulations that would enable DHS to detain 
adults and children entering illegally in family units, to comply with 
the detention provisions in the INA.
    Response: The Flores Settlement Agreement requires the promulgation 
of the relevant and substantive terms of the FSA as regulations, FSA ] 
9, and based on a 2001 Stipulation, the Agreement terminates ``45 days 
following defendants' publication of final regulations implementing 
[the] Agreement,'' Stipulation Extending Settlement Agreement ] 40, 
Flores v. Reno, No. 85-cv-4544 (C.D. Cal. Dec. 7, 2001). In August 
2019, DHS and the Department of Health and Human Services published a 
Flores final rule, Apprehension, Processing, Care, and Custody of Alien 
Minors and Unaccompanied Alien Children, 84 FR 44392 (Aug. 23, 2019); 
however, that rule was partially enjoined, see Flores v. Rosen, 984 
F.3d 720 (9th Cir. 2020). While the FSA does impose restrictions on 
DHS's ability to detain family units, addressing the FSA by 
promulgating regulations to implement such Agreement is outside the 
scope of this rule.
    Comments: Several commenters supported expanding the circumstances 
in which parole may be granted to allow release of families from 
detention but opposed any expansion of the expedited removal system 
upon which the proposed asylum process is premised. A couple of 
commenters asserted that the expedited removal process is harmful and 
emphasized that DHS is not required to use expedited removal. These 
commenters recommended that the proposed rule be amended to avoid the 
use of expedited removal. Commenters argued that the expedited removal 
process does not provide due process, fails to comply with domestic 
refugee law and international commitments, and has led to mistreatment 
and the return of refugees to persecution.
    Commenters also argued that the proposed changes to 8 CFR 235.3 to 
expand the possibility of parole would eliminate the barrier to placing 
families into expedited removal and would risk further cementing 
expedited removal as a primary tool to remove noncitizens, creating 
possibilities for use of the expedited removal structure to be expanded 
by future administrations.
    Response: The Departments disagree that the expedited removal 
process does not comport with due process or U.S. refugee law. See, 
e.g., DHS v. Thuraissigiam, 140 S. Ct. 1959, 1963-64 (2020) (addressing 
the Due Process Clause of the Fifth Amendment). Comments expressing 
opposition to the Departments' use of expedited removal generally are 
also beyond the scope of this rulemaking, which amends certain 
procedures and standards applicable to noncitizens once they have 
already been placed into expedited removal.
    Comments: Several commenters stated that detention is a harmful and 
punitive practice that should be reduced or eliminated completely and 
expressed disappointment that the proposed rule did not include 
systematic efforts to limit or eliminate the detention of asylum 
seekers. A couple of commenters added that detention is not necessary 
to achieve the goal of ensuring that people seeking asylum appear for 
their appointments. A few commenters remarked that detention makes it 
nearly impossible for asylum seekers to assert their protection claims 
effectively, as their ability to access legal resources and legal 
representation is often non-existent. One commenter stated that only 30 
percent of detained immigrants receive legal representation and argued 
that the remote location of detention facilities, the inadequate

[[Page 18129]]

access to counsel and interpreters, and the frequent transfer of 
detainees present nearly insurmountable barriers to detainees seeking 
to obtain legal assistance. A few commenters asserted that detention of 
asylum seekers flouts U.S. legal obligations under the Refugee 
Convention and Protocol or that presumptive detention of asylum seekers 
violates international refugee and human rights law. Some commenters 
suggested that DHS invest its resources in housing, medical treatment, 
and travel expenses for asylum seekers, rather than expediting asylum 
interviews and moving people through detention faster. They stated that 
this would help ensure that those entering the United States are 
welcomed by a supportive community.
    Response: Although the Departments acknowledge the commenters' 
concerns about access to legal services, the Departments disagree with 
the commenters who urged that the regulations at issue should be 
amended to systematically limit or eliminate the detention of anyone 
indicating an intention to seek asylum. The Departments believe that 
the standards proposed by these commenters would not be consistent with 
the detention provisions of section 235(b)(1)(B)(ii) of the Act, 8 
U.S.C. 1225(b)(1)(B)(ii), or DHS's parole authority under section 
212(d)(5)(A) of the Act, 8 U.S.C. 1182(d)(5)(A). Proposals to change 
those detention provisions are properly directed to Congress, not to 
the Departments. The Departments also do not believe that commenters' 
requests are feasible. Commenters did not explain what budget authority 
DHS would have to invest resources in non-detention housing, medical 
treatment, and travel expenses for noncitizens arriving at the border 
and indicating an intention to apply for asylum in the United States.
3. Credible Fear Screening Process
a. General Comments on Credible Fear Screening Process
    Comments: Some commenters indicated that the changes to the 
credible fear screening process in the NPRM are valuable and necessary 
and expressed general support for the changes. Other commenters 
expressed opposition to the procedural changes based on the belief that 
individuals in the expedited removal process are coached to lie and 
express fear. Several commenters described the credible fear process as 
a ``loophole'' to be exploited by dangerous people to get into the 
United States. Other commenters stated that the majority of asylum 
seekers are not properly vetted, while another stated that individuals 
claim credible fear without any proof. Similarly, several commenters 
stated that documented proof should be submitted, and that testimony 
alone or a simple statement of credible fear is unacceptable.
    Another commenter stated that credible fear should be established 
immediately after the individual is detained to avoid having U.S. 
persons suffer at the hands of criminals. Similarly, another commenter 
suggested that individuals who are national security threats or have 
``egregious criminal histories'' should not be permitted to make 
credible fear claims. Some commenters stated that asylum officers 
should not be conducting credible fear interviews, asserting that the 
existing process lacks transparency and oversight, and another 
commenter recommended that IJs handle credible fear claims.
    Several commenters expressed concern with conditions and due 
process in expedited removal and credible fear interviews in general, 
arguing that those factors would affect the case outcome in various 
stages of the asylum process.
    Response: The Departments acknowledge the commenters' support for 
the changes to the credible fear screening process in this rule and 
acknowledge the other commenters' concerns about the credible fear 
screening process. The Departments disagree that the credible fear 
screening process is a loophole to be exploited by dangerous 
individuals and that the rule will only encourage more individuals to 
come to the border and request asylum. Expedited removal and the 
credible fear screening process were established by Congress. The 
credible fear process ensures that the U.S. Government adheres to its 
international obligations, as implemented through U.S. law, to refrain 
from removing a noncitizen to a country where the noncitizen would be 
persecuted or tortured. See Section II.B and II.C of this preamble. To 
the extent that commenters assert that noncitizens seeking protection 
generally are liars or criminals seeking to exploit a ``loophole,'' the 
Departments reject that characterization as unfounded. This rulemaking 
is one part of a multifaceted whole-of-government approach to 
addressing irregular migration and ensuring that the U.S. asylum system 
is fair, orderly, and humane, and this rulemaking is consistent with 
the E.O. on Migration, which states that ``[s]ecuring our borders does 
not require us to ignore the humanity of those who seek to cross them. 
The opposite is true.'' 86 FR 8267. This whole-of-government approach 
seeks to make better use of existing enforcement resources by investing 
in border security measures that are proven to work and that will 
facilitate greater effectiveness in combatting human smuggling and 
trafficking and the entry of undocumented individuals. This rule seeks 
to ensure that the Departments process the protection claims of 
individuals in the credible fear screening process promptly and 
efficiently, meaning that it allows individuals who are not eligible 
for protection to be removed more promptly.
    The Departments recognize that the credible fear screening and 
review process involves eliciting testimony from individuals seeking 
protection and does not require noncitizens to provide written 
statements or documentation. Both asylum officers and IJs receive 
training and have experience with assessing evidence and the 
credibility of noncitizens who appear before them for interviews or 
hearings. Asylum officers and IJs have experience identifying and 
raising concerns surrounding inconsistencies and lack of detail, and 
thus are equipped to make well-reasoned decisions regarding 
credibility, even in the absence of written statements or other 
documentation. Moreover, requiring written statements or other 
documentation would likely limit the ability of certain asylum seekers 
to obtain protection, given that some may have fled their home 
countries without the ability to secure documentation, and obtaining 
documentation once they are in the United States may not be feasible. 
Indeed, the INA explicitly provides that ``testimony of the applicant 
may be sufficient to sustain the applicant's burden without 
corroboration, but only if the applicant satisfies the trier of fact 
that the applicant's testimony is credible, is persuasive, and refers 
to specific facts sufficient to demonstrate that the applicant is a 
refugee.'' INA 208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii).
    Moreover, the Departments respectfully disagree with commenters' 
assertions that credible fear interviews are plagued with due process 
concerns. While some issues may arise due to the nature of credible 
fear interviews--which may be the first time or one of the first times 
an individual has provided testimony related to sensitive topics and 
which often occur remotely with an interpreter and with the individual 
in a detained setting--USCIS asylum officers are trained to conduct 
those interviews in a fair and sensitive manner, and

[[Page 18130]]

every credible fear determination is reviewed by a supervisory asylum 
officer and subject to additional IJ review if the applicant so chooses 
or, under this IFR, fails or refuses to decline such review. The 
Departments do not agree that potential issues with the credible fear 
determination, to the extent that any may exist, would necessarily 
affect case outcomes in the new process. Applicants will have ample 
opportunity to correct any biographic or informational errors in the 
Form I-870. Asylum officers will not be limited to considering only the 
testimony provided during the credible fear interview but will conduct 
a full nonadversarial interview to determine asylum eligibility for the 
principal applicant. Moreover, if the applicant fails to establish 
asylum eligibility before the asylum officer at the Asylum Merits 
interview under the IFR, they will have the opportunity to present 
their claims for asylum and withholding or deferral of removal before 
an IJ when they are placed in streamlined section 240 proceedings and 
the IJ will review their claims.
b. ``Significant Possibility'' Standard for Protection Claims
    Comments: Several commenters expressed general support for 
restoring the ``significant possibility'' standard. One commenter 
stated that clarifications at proposed 8 CFR 208.30(e)(2) provide 
important protections to individuals in expedited removal and comport 
with section 235(b)(1)(B) of the Act, 8 U.S.C. 1225(b)(1)(B).
    Other commenters expressed general disapproval with the use of the 
``significant possibility'' standard, either advocating for a higher 
standard or stating that the use of a less stringent standard may 
encourage frivolous claims or claims from individuals solely seeking 
employment authorization.
    Response: The Departments acknowledge the support of commenters. 
The rule adopts the ``significant possibility'' standard for credible 
fear screenings for purposes of asylum, withholding of removal, and CAT 
protection. As explained above in Section III.A of this preamble, while 
the statutory text only defines ``credible fear'' for purposes of 
screening asylum claims, see INA 235(b)(1)(B)(v), 8 U.S.C. 
1225(b)(1)(B)(v); see also 86 FR 46914, the Departments believe that 
the efficiency gained in screening the same set of facts using the same 
standard of law for all three forms of protection is substantial and 
should not be overlooked. Moreover, the credible fear screening process 
is preliminary in nature; its objective is to sort out, without undue 
decision costs, which cases merit further consideration and to act as a 
fail-safe to minimize the risk of refoulement. Using one standard of 
law is consistent with those objectives, even though the ultimate 
adjudication of a noncitizen's claim for each form of protection may 
require a distinct analysis.
    Comments: One commenter requested that the Departments elaborate 
upon the ``significant possibility'' test to make clear that the 
showing that must be made is not a ``significant possibility'' of 
persecution, but a ``significant possibility'' that the ``claimant 
could make out a well-founded fear of such persecution where there 
exists as little as a one in ten chance of such serious harm 
occurring.'' The commenter argued that the ``preponderance of the 
evidence'' threshold is not applicable during this process. The 
commenter also stressed that nothing in the proposed rule requires the 
asylum officer to investigate all the possible avenues by which an 
applicant for protection may be able to access asylum. Similarly, some 
commenters said that more training and oversight is needed to ensure 
that asylum officers correctly apply the low bar standard and do not 
misinterpret it.
    Alternatively, a commenter suggested that the standard ``manifestly 
unfounded'' be applied during the credible fear screening. That is, the 
commenter believes that unless an individual's claim is assessed to be 
manifestly unfounded, or unrelated to the criteria for granting asylum, 
they should have access to full proceedings. The commenter believes 
this would guard against the risk that an individual would be returned 
to a country where they face persecution. The commenter further stated 
that the ``significant possibility'' standard is a step in the right 
direction but still does not match international standards. Another 
commenter expressed the concern that the ``significant possibility'' 
standard proposed in the rule is largely impossible to meet in practice 
because ``it virtually forces the non-citizen to produce at once all of 
the evidence necessary to gain success at trial.''
    Response: The Departments appreciate comments regarding further 
elaboration on the ``significant possibility'' standard, alternative 
standards, and the ``significant possibility'' standard's use in 
credible fear interviews. The ``significant possibility'' standard is a 
statutory standard found at INA 235(b)(1)(B)(v), 8 U.S.C. 
1225(b)(1)(B)(v), and suggested use of the ``manifestly unfounded'' or 
other international standards concerning refugee claims in screening 
for credible fear would require legislative change. As commenters have 
recognized, appropriate application of the ``significant possibility'' 
standard is nuanced and fact-intensive. The Departments therefore 
believe that further elaboration on the appropriate application of the 
standard is best accomplished through case law, training, and 
oversight, rather than through abstract discussion or further 
codification. Such training is an integral part of ensuring the 
appropriate application of this standard, but the Departments do not 
believe it is appropriate to codify such training or oversight in the 
regulatory text.
    Comments: Some commenters stated that the return to the 
``significant possibility'' standard is appropriate but observed that 
the proposed rule does not specify a choice of law rule, which is 
important for respecting the rights of asylum seekers, and commenters 
suggest that this language be added at 8 CFR 208.30. One commenter 
asked that DHS apply the law most favorable to the individual seeking 
protection when determining whether he or she meets the credible fear 
standard.
    Response: The Departments agree that USCIS should apply the law 
most favorable to the individual seeking protection at the credible 
fear screening stage. DHS remains subject to the injunction in Grace v. 
Whitaker, 344 F. Supp. 3d 96, 135-40, 146 (D.D.C. 2018), which found 
that a DHS policy memo applying only the law of the circuit where the 
credible fear interview occurs rather than the circuit law most 
favorable to the applicant's claim was unlawful. Therefore, USCIS 
continues to apply the choice of law most favorable to the applicant 
when screening for credible fear.
    Comment: A few commenters generally opposed the rule on the ground 
that changing the standard for credible fear screening will delay 
removal of noncitizens with meritless claims for protection.
    Response: The Departments disagree that the rule's changes to the 
credible fear screening process will, in the aggregate, contribute to 
delays in removal. Divergent standards for asylum and withholding of 
removal along with variable standards for individuals barred from 
certain types of relief were promulgated in multiple rulemaking efforts 
over the last few years.\68\ However, in working to create efficiencies 
within this process, adopting the standard of law that was

[[Page 18131]]

set by Congress for credible fear claims is the logical choice. The 
varied legal standards created by asynchronous rulemaking, and often 
enjoined or vacated by legal challenges, defeated their intended 
purpose by complicating and extending the initial screening process 
provided for in section 235 of the Act, 8 U.S.C. 1225. Use of different 
legal standards for asylum, statutory withholding of removal, and CAT 
protection required additional time for adjudicators to evaluate 
whether a mandatory bar to asylum or to statutory withholding of 
removal was present. Additionally, adjudicators were required to 
evaluate the same evidence twice for the same factual scenario. 
Notably, use of the different standards would require asylum officers 
to apply the mandatory bars to asylum in order to consider screening 
for statutory withholding of removal. In turn, this would inevitably 
increase credible fear interview and decision times, requiring analysis 
of the bars and then applying the higher evidentiary standard. For 
example, when the TCT Bar IFR was in effect, asylum officers were 
required to spend additional time during any interview where the bar 
potentially applied developing the record related to whether the bar 
applied and, if so, whether an exception to the bar might have applied. 
Then, if the noncitizen appeared to be barred and did not qualify for 
an exception to the bar, asylum officers had to develop the record 
sufficiently such that a determination could be made according to the 
higher reasonable possibility standard. IJs reviewing negative credible 
fear determinations where a mandatory bar was applied would similarly 
be required to review the credible fear determination under two 
different standards, undermining the efficiency of that process as 
well.
---------------------------------------------------------------------------

    \68\ See supra note 4 (discussing recent regulations and their 
current status).
---------------------------------------------------------------------------

    In the Departments' view, the delays associated with complicating 
and extending each and every credible fear interview to use two 
different standards outweigh any efficiency that could be gained by 
potential earlier detection of individuals who may be barred from or 
ineligible for certain types of protection. Commenters have not 
provided any data or information suggesting that the asylum caseload 
would be meaningfully reduced by evaluating the existence of bars to 
eligibility during the credible fear screening or by applying a 
``reasonable possibility'' standard (rather than the ``significant 
possibility'' standard) in screening claims for statutory withholding 
of removal or CAT protection. In clarifying that the ``significant 
possibility'' standard applies not only to credible fear screening for 
asylum, but also to credible fear screening for statutory withholding 
and CAT protection, the Departments will continue to ensure that the 
expedited removal process remains expedited and will allow for asylum 
officers and, upon credible fear review, IJs, to adhere to a single 
standard of law in fulfilling the United States' nonrefoulement 
obligations.
c. Due Process in Credible Fear Screening
    Comments: Multiple commenters recommended that the Departments 
retain the language at 8 CFR 208.30(g)(2)(i) acknowledging USCIS's 
ability to reconsider a negative credible fear finding after it has 
been upheld by an IJ. Commenters expressed their belief that an 
additional option for review, even after a Supervisory Asylum Officer 
(``SAO'') has reviewed the asylum officer's credible fear determination 
and an IJ has concurred with the determination, is still necessary to 
preserve the rights of noncitizens.
    Commenters described a range of issues that they allege render the 
credible fear process systematically ``unreliable,'' making the need 
for additional safeguards against refoulement--including USCIS 
reconsideration--more acute. Describing the negative effects of trauma 
and procedural limitations on credible fear outcomes, commenters 
suggested that the ability to file a request for reconsideration with 
USCIS has saved ``countless'' asylum seekers from refoulement. One 
commenter noted that reconsideration provides ``an important safety 
net'' and can address instances in which the credible fear process may 
not have provided a fair process, including where appropriate 
interpretation for indigenous language speakers and adequate 
accommodations for disabilities were not provided. Another commenter 
suggested that the reconsideration processes in place are ``central to 
the American value of due process'' and a second commenter, for similar 
reasons, expressed strong opposition to eliminating them through this 
rule.
    Multiple commenters argued that revising this provision would 
eliminate a key procedural safeguard for asylum seekers, citing a 
September 2021 study by Human Rights First.\69\ Several commenters 
provided examples of individuals who successfully sought 
reconsideration and, as a result, won protection. These commenters 
concluded that reconsideration by USCIS is a means to avoid unlawful 
refoulement due to mishandled credible fear interviews, errors in the 
initial credible fear record, and barriers to adequate review by an IJ.
---------------------------------------------------------------------------

    \69\ See Human Rights First, Biden Administration Move to 
Eliminate Requests for Reconsideration Would Endanger Asylum 
Seekers, Deport Them to Persecution and Torture (Sept. 2021), 
https://www.humanrightsfirst.org/sites/default/files/RequestsforReconsideration.pdf (last visited Mar. 14, 2022).
---------------------------------------------------------------------------

    Adding to the above arguments, a commenter asserted that the 
factors distinguishing USCIS reconsideration from IJ review favor due 
process and administrative efficiency. The commenter said 
reconsideration allows for more time to access counsel, since asylum 
seekers can request reconsideration at any time following the credible 
fear determination and prior to removal. On the other hand, EOIR is 
required to schedule hearings within 7 business days of the credible 
fear determination. The commenter added that USCIS asylum officers will 
often provide asylum seekers time to explain errors with their initial 
interview, while IJ reviews move quickly and do not consider procedural 
errors in the credible fear interview. Furthermore, the commenter 
suggested that USCIS benefits from requests for reconsideration, as 
they serve as checks and balances for the agency while informing future 
asylum officer training. Given the differences between IJ review and 
USCIS reconsideration, an individual commenter argued that ``[requests 
for reconsideration] are often our only recourse after a negative 
[credible fear interview] finding.''
    Response: The Departments acknowledge the comments related to 
whether an IJ should have sole jurisdiction to review negative credible 
fear determinations made by USCIS, or whether USCIS should retain the 
practice of entertaining requests for reconsideration even after a 
negative credible fear determination is served on the applicant and 
reviewed and affirmed by an IJ. Some context for the regulatory 
language at play and the way this practice has developed is helpful to 
frame this discussion. Prior to publication of the Global Asylum rule 
on December 11, 2020, the language related to reconsideration was 
located at 8 CFR 1208.30(g)(2)(iv)(A). With the Global Asylum rule, the 
Departments moved it from that section to 8 CFR 208.30(g)(2)(i).\70\ 
The regulatory language recognizes USCIS's inherent discretionary 
authority to reconsider its own determination, but it was never meant 
to provide for a general process

[[Page 18132]]

by which individuals could submit requests for reconsideration of 
negative credible determinations to USCIS that had already been 
reviewed and upheld by an IJ as a matter of course. In practice, 
however, this regulatory language has served as a basis for 
entertaining such requests and, over the years, they have become an ad 
hoc yet increasingly significant portion of the work of USCIS asylum 
offices. Because this was never meant to be a formalized process, there 
is no formal mechanism for individuals to request reconsideration of a 
negative credible fear determination before USCIS; instead, such 
requests are entertained on an informal ad hoc basis whereby 
individuals contact USCIS asylum offices with their requests for 
reconsideration after an IJ has affirmed the negative credible fear 
determination, and asylum offices have to quickly assign officers and 
supervisors to review those requests. This informal, ad hoc allowance 
for such requests has proven difficult to manage and led to the 
expenditure of significant USCIS resources to entertain such requests. 
Yet USCIS has continued to entertain these requests because, in line 
with what some commenters argued, IJ review has sometimes failed to 
address allegations of error or newly available evidence that may 
compel a positive credible fear determination, and individuals would 
otherwise have no other recourse.
---------------------------------------------------------------------------

    \70\ See 85 FR 80275; supra note 4 (discussing recent 
regulations and their current status).
---------------------------------------------------------------------------

    The informal ad hoc approach of USCIS entertaining requests for 
review of negative credible fear determinations that has developed over 
time requires USCIS to devote resources to these requests that could 
more efficiently be used on initial credible fear and reasonable fear 
determinations, affirmative asylum adjudications, and now Asylum Merits 
interviews under the present rule. Because there is no formal mechanism 
by which to accept and review such requests, there can be no uniform 
procedure guiding their review. Likewise, because they are not 
applications, petitions, motions, or some other type of formal request, 
USCIS does not maintain comprehensive, official data in the Asylum 
Division's case management system on requests for reconsideration in a 
standardized manner that can be readily queried. In any event, the 
Departments agree with commenters that some type of data related to 
these requests, including how many are received, how often the negative 
credible fear determinations are reconsidered, and how often a positive 
decision is issued, would be helpful to inform this discussion. The 
Departments accordingly have attempted to gather the best data 
available related to these requests, based on informal tracking by some 
offices, which is not comprehensive or standardized.
    The available data related to requests for reconsideration 
(``RFRs'') of negative credible fear determinations already affirmed by 
an IJ is as follows:
Fiscal Year 2019 (``FY19'')
    During FY19, the following USCIS asylum offices informally tracked 
credible fear RFRs received at their offices: Houston, TX (ZHN); Los 
Angeles, CA (ZLA); New York, NY (ZNY); Newark, NJ (ZNK); New Orleans, 
LA (ZOL); and San Francisco, CA (ZSF). The remaining offices 
(Arlington, VA (ZAR/ZAC); Chicago, IL (ZCH); and Miami, FL (ZMI)) did 
not track RFRs received.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
FY19: Total negative CF determinations   12,071.
 by the offices that tracked RFRs.
FY19: Total RFRs submitted to offices    2,086 (17 percent of negatives
 that tracked RFRs.                       from the offices that tracked
                                          RFRs).
FY19: Total negative determinations      231 (11 percent of RFR
 changed to positive post-RFR by          submissions and 2 percent of
 offices that tracked RFRs.               all negatives from the offices
                                          that tracked RFRs).
------------------------------------------------------------------------

Fiscal Year 2020 (``FY20'')
    During FY20, the following USCIS asylum offices informally tracked 
credible fear RFRs received at their offices: Boston, MA (ZBO); 
Houston, TX (ZHN); Los Angeles, CA (ZLA); New York, NY (ZNY); Newark, 
NJ (ZNK); New Orleans, LA (ZOL); and San Francisco, CA (ZSF). The 
remaining offices (Arlington, VA (ZAR/ZAC); Chicago, IL (ZCH); and 
Miami, FL (ZMI)) did not track RFRs received.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
FY20: Total negative CF determinations   7,698.
 by the offices that tracked RFRs.
FY20: Total RFRs submitted to offices    2,109 (27 percent of negatives
 that tracked RFRs.                       from the offices that tracked
                                          RFRs).
FY20: Total negative determinations      150 (7 percent of RFR
 changed to positive post-RFR by          submissions and 2 percent of
 offices that tracked RFRs.               all negatives from the offices
                                          that tracked RFRs).
------------------------------------------------------------------------

Fiscal Year 2021 (``FY21'')
    During FY21, the following USCIS asylum offices informally tracked 
credible fear RFRs received at their offices: Arlington, VA (ZAR/ZAC); 
Boston, MA (ZBO); Houston, TX (ZHN); Los Angeles, CA (ZLA); New York, 
NY (ZNY); Newark, NJ (ZNK); and New Orleans, LA (ZOL). The remaining 
offices (Chicago, IL (ZCH); Miami, FL (ZMI); and San Francisco, CA 
(ZSF)) did not track RFRs received.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
FY21: Total negative CF determinations   11,232.
 by the offices that tracked RFRs.
FY21: Total RFRs submitted to offices    1,213 (10.7 percent of
 that tracked RFRs.                       negatives from the offices
                                          that tracked RFRs).
FY21: Total negative determinations      188 (15 percent of RFR
 changed to positive post-RFR by          submissions and 1.6 percent of
 offices that tracked RFRs.               all negatives from the offices
                                          that tracked RFRs).
------------------------------------------------------------------------

    Although the above data do not account for every case in which a 
request for reconsideration of a negative credible fear determination 
was made, they demonstrate the significant number of requests for 
reconsideration that USCIS asylum offices have entertained. 
Anecdotally, offices report that given the sizeable number of requests 
received, it is not uncommon to have four or five senior asylum 
officers working on RFRs full-time, along with two supervisors 
dedicating half of each day to RFRs on a regular basis, with additional 
oversight (approximately one

[[Page 18133]]

hour per day) by upper management (such as a Section Chief). The number 
of hours required to review an RFR may vary, as the task includes 
reviewing the credible fear record in light of any allegations of clear 
error or the presentation of any newly available evidence that may 
change the decision from a negative to a positive and determining if 
another interview is necessary to make a decision. In cases in which 
another interview is provided, a single request could take upwards of 
four hours to complete. Moreover, given the time-sensitive nature of 
the request, considering the individual is in the process of being 
expeditiously removed, where offices exercise their discretion to 
review such requests, they have to act quickly to ensure the review 
takes place prior to removal. Where RFRs are entertained, to ensure the 
review takes place prior to removal, if an office does not already have 
full-time staff dedicated to RFR review at a given moment, they must 
pull asylum officers off their regular caseload of credible fear, 
reasonable fear, or affirmative asylum cases and require them to 
quickly shift gears to review RFRs, in addition to requiring SAOs to do 
the same. Furthermore, while offices have not tracked cases where 
multiple RFRs are received, anecdotally, they report that it is not 
uncommon to receive multiple RFRs from the same applicant, in some 
instances as many as two to three or more per case.
    To channel USCIS's resources to where they can most efficiently be 
used, with the present rulemaking, the Departments first proposed 
revising 8 CFR 208.30(g)(1)(i) to eliminate USCIS reconsiderations and 
provide that an IJ has sole jurisdiction to review whether the 
individual has established a credible fear of persecution or torture 
once the asylum officer has made a negative credible fear determination 
and the individual is served with a Form I-863 (after the individual 
either requests IJ review or declines to request review and that 
declination is treated as a request for review). Once the Form I-863 
was served, jurisdiction to review the credible fear determination 
would then have rested solely with EOIR. The Departments based this 
revision on the notion that requests to reconsider negative credible 
fear determinations where applicants have new, previously unavailable 
evidence, or where a clear procedural or substantive error in the 
determination is alleged, should properly take the form of motions to 
reopen before EOIR and be decided by an IJ.
    Upon further consideration and after reflecting on the comments 
received on this topic, however, the Departments agree with many of the 
commenters that even after a negative credible fear determination has 
been reviewed by an SAO, the individual has been served with the 
decision, and an IJ has reviewed and concurred with the negative 
determination, in some rare instances USCIS may still want to 
reconsider the determination as a matter of discretion. For example, if 
there is an allegation of procedural or substantive error in the 
original determination and the IJ did not address this issue during IJ 
review, it may be an appropriate exercise of USCIS's discretion to 
reconsider the case. While the Departments disagree with the 
commenters' characterization of credible fear interviews as rife with 
procedural errors, the Departments also recognize that errors sometimes 
occur given all the unique circumstances at play. In some instances, 
errors that may or may not have been avoidable will occur and should be 
corrected. In those instances, the Departments believe there should be 
some recourse for the noncitizens who are affected. The Departments do 
not take lightly the notion that, as referred to by commenters and as 
demonstrated by the above data, there are some cases where the negative 
credible fear determination is overturned and, absent such individuals 
requesting reconsideration and USCIS exercising its discretion to 
reconsider, these individuals may have been removed to a country where 
they were in fact ultimately able to demonstrate a credible fear of 
persecution or torture. Considering the gravity of the consequences of 
failing to address a potential clear error in the negative credible 
fear determination, including potentially violating the United States' 
non-refoulement obligations and returning the individual to a country 
where there is a significant possibility that the individual could be 
persecuted or tortured, the Departments agree that it is appropriate to 
allow an option for reconsideration as a last resort. While the NPRM 
framed that option as being best exercised by EOIR before the IJ, 
considering the many comments showing how USCIS is specially positioned 
to reconsider a decision even after an IJ has concurred with it, the 
Departments agree that potential reconsideration by USCIS should 
continue to be allowed. As such, instead of adopting the revisions to 8 
CFR 208.30(g)(1)(i) that were proposed in the NPRM, in this IFR, DHS is 
retaining language at 8 CFR 208.30(g)(1)(i) recognizing that DHS may, 
in its discretion, reconsider a negative credible fear finding with 
which an IJ has concurred.
    At the same time, the Departments remain concerned that requests 
for reconsideration of negative credible fear determinations not be 
permitted to undermine the present rule's purpose to create a more 
efficient and streamlined process following a credible fear 
determination, while ensuring due process. As noted in the preamble to 
the NPRM, the original changes to 8 CFR 208.30(g) proposed in the NPRM 
were put forth to be consistent with the statutory scheme of INA 
235(b)(1)(B)(iii), 8 U.S.C. 1225(b)(1)(B)(iii), under which IJ review 
of the credible fear determination serves as the check to ensure 
individuals are not returned to a country where they have demonstrated 
a credible fear. The Departments stand by that assertion from the 
NPRM's preamble and want to emphasize that even though they are 
recognizing the possibility that USCIS may, in its discretion, 
reconsider a negative credible fear determination, such an exercise of 
discretion is not the appropriate primary mechanism for review of a 
credible fear determination--that credible fear review, per statute, 
rests with the IJ once jurisdiction is transferred to EOIR. The 
recognition of USCIS's inherent discretionary authority to potentially 
reconsider a credible fear determination must not be used to undercut 
the statutory scheme of expedited removal, including the proper role of 
the IJ to review USCIS's negative credible fear determination, nor will 
DHS permit it to obfuscate the purpose of the present rule. 
Accordingly, while DHS is maintaining the regulatory reference to its 
inherent discretionary authority to reconsider a negative credible fear 
determination in the present rule, it is also placing a temporal and 
numerical limitation on allowances for reconsideration to ensure the 
exercise of such authority is consistent with the statutory expedited 
removal and credible fear framework. The present rule provides at 8 CFR 
208.30(g)(1)(i) that any request for reconsideration must be received 
no more than 7 days after the IJ's concurrence with the negative 
credible fear determination, or prior to the individual's removal, 
whichever date comes first. This time limit is necessary to ensure the 
avenue of allowing USCIS reconsideration does not undercut the whole 
expedited removal process in cases where the applicant has already had 
an opportunity to present his or her claim before an asylum officer, 
the asylum officer has made a decision that was

[[Page 18134]]

concurred with by an SAO, and an IJ has reviewed the determination in 
accordance with the statutory scheme. Additionally, for the same 
reasons, it is necessary to limit any request for reconsideration of a 
negative credible fear determination before USCIS to one request only, 
which the Departments have also provided for at 8 CFR 208.30(g)(1)(i). 
Considering, as mentioned above, that asylum offices report receiving 
multiple RFRs for a single case and devoting significant resources that 
could more efficiently be spent adjudicating the cases of applicants 
who have not yet had any opportunity for their claims to be heard, this 
numerical limitation is also essential if USCIS is going to continue 
entertaining such requests. If unlimited requests were allowed, or if 
there were no limit on the time frame during which such requests may be 
lodged, the Departments would run the risk of endorsing an ad hoc 
process that would undermine the very purpose of the statutory scheme 
of expedited removal laid out by Congress, and indeed also the very 
purpose of the present rule. The Departments, after careful reflection, 
instead are providing the best balance to promote both due process and 
finality, consistent with the statutory scheme of expedited removal, 
including the statutory language that clearly directs that the IJ is 
the proper reviewer of any negative credible fear determination made by 
an asylum officer.
    Comments: One commenter expressed support for the Departments' 
proposal to eliminate the regulatory text that describes USCIS's 
authority to reconsider negative credible fear determinations that have 
already been reviewed by a supervisory asylum officer and upheld by an 
IJ. This commenter agreed with the Departments' assessment that the 
proposal would increase efficiency, that it more closely aligns with 
the statutory scheme of section 235 of the Act, 8 U.S.C. 1225, and that 
it would be necessary to ensure that requests for reconsideration do 
not frustrate the streamlined process that Congress intended for 
expedited removal. The commenter asserted that requests for 
reconsideration have become ``an overwhelmingly popular tactic'' to 
delay removal among individuals without meritorious fear claims, 
diverting resources from those with legitimate claims.
    Response: The Departments acknowledge the comment related to how 
the proposed changes align with the statutory scheme governing 
expedited removal and credible fear. The Departments also agree that 
resources should be used efficiently and generally should not be 
diverted from those who have not yet had any interview or determination 
to those who have already had an opportunity to present their claim and 
who received a negative credible fear determination made by an asylum 
officer, reviewed by a supervisory asylum officer, and concurred with 
by an IJ. For these reasons, while the Departments are not maintaining 
the exact revisions to 8 CFR 208.30(g) proposed in the NPRM, the 
Departments are taking this opportunity to clarify that the 
statutorily-mandated review of any negative credible fear determination 
must take place by an IJ pursuant to INA 235(b)(1)(B)(iii)(III), 8 
U.S.C. 1225(b)(1)(B)(iii)(III), and that IJ review is the appropriate 
method by which a negative credible fear determination made by USCIS is 
reviewed. Following IJ review, pursuant to USCIS's inherent 
discretionary authority to review its own decisions, USCIS may, as a 
matter of discretion, reconsider a negative credible fear determination 
that has already been concurred with by an IJ, 8 CFR 208.30(g), but the 
Departments agree with the comment that this exercise of discretion 
cannot be allowed to frustrate the underlying expedited removal process 
laid out by Congress. Accordingly, DHS is providing for revisions to 8 
CFR 208.30(g) that place reasonable limits on when USCIS may entertain 
a request for reconsideration as a matter of discretion, including that 
any reconsideration be requested by the noncitizen or their attorney or 
initiated by USCIS no more than 7 days after the IJ concurrence with 
the negative credible fear determination, or prior to the noncitizen's 
removal, whichever date comes first, and that only one such request may 
be entertained per case. These reasonable limitations are necessary to 
ensure that USCIS's exercise of discretion in allowing any potential 
reconsideration of a negative credible fear determination is not 
inconsistent with Congress's instructions in establishing the expedited 
removal process and to ensure requests for reconsideration cannot be 
used as a tactic to delay removal for individuals with non-meritorious 
claims, which, as the commenter expressed, is a serious issue that 
diverts resources from USCIS hearing potentially meritorious claims.
d. Removal of Mandatory Bars From Consideration
    Comments: A commenter stated that the NPRM did not provide a good 
enough rationale for rescinding the regulatory change that would 
require application of the ``mandatory bars'' against asylum claims 
during credible fear screening. The commenter expressed opposition to 
``ignoring'' mandatory bars, such as if the applicant is a criminal, is 
a danger to the United States, or participated in the persecution of 
others. A number of commenters supported the Departments' proposal to 
not apply the mandatory bars to asylum and withholding of removal 
during the credible fear screening process. One comment stated that 
application of U.S. law relating to bars to asylum is so complex and 
often fact-intensive that it is simply not possible to make fair and 
accurate legal determinations on these issues in the context of 
credible fear screenings, which do not allow sufficient time to 
identify the factual information and legal arguments that may need to 
be raised on these points. Another commenter stated that exclusion from 
refugee protection is a complex inquiry into factual and legal 
questions involving not only international refugee law, but in many 
cases, international human rights, humanitarian law, and international 
criminal law. The commenter stated that this inquiry cannot be 
adequately assessed in a screening interview, particularly given 
truncated timelines, lack of legal assistance, lack of understanding 
about the procedure, challenges with translation and interpretation, 
and the prevalence of trauma.
    Response: The Departments acknowledge the commenter's invitation to 
further explain their reasons for recodifying the historical practice 
of not applying mandatory bars to asylum or statutory withholding of 
removal at the credible fear screening stage. See 8 CFR 
208.30(e)(5)(i)(A). As described in Section III.A of this preamble, 
requiring asylum officers to apply mandatory bars during credible fear 
screenings would make these screenings less efficient, undermining 
congressional intent that the expedited removal process be truly 
expeditious. Because of the complexity of the inquiry required to 
develop a sufficient record upon which to base a decision to apply a 
mandatory bar, such a decision is most appropriately made in the 
context of a full merits hearing, whether before an asylum officer or 
an IJ, and not in a screening context. Furthermore, due process and 
fairness considerations counsel against applying mandatory bars during 
the credible fear screening process. Due to the intricacies of fact 
finding and legal analysis required to make a determination on the 
applicability of any mandatory bars,

[[Page 18135]]

individuals found to have a credible fear of persecution should be 
afforded the additional time, procedural protections, and opportunity 
to further consult with counsel that the Asylum Merits process or 
section 240 proceedings provide. In light of the need to preserve the 
efficiency Congress intended in making credible fear screening part of 
the expedited removal process and to ensure due process for those 
individuals found to have a significant possibility of establishing 
eligibility for asylum or statutory withholding of removal but for the 
potential applicability of a mandatory bar, the Departments have 
determined that these goals can be accomplished by returning to the 
historical practice of not applying mandatory bars at the credible fear 
screening stage.
    The commenter's suggestion that the Departments intend through this 
rulemaking to ignore any mandatory bar is mistaken. On the contrary, 
asylum officers are trained to gather and analyze information to 
determine the applicability of mandatory bars in affirmative asylum 
adjudications, and they are instructed to assess whether certain bars 
may apply in the credible fear screening context. The latter assessment 
is designed to flag any mandatory bar issues requiring further 
exploration in Asylum Merits interviews or section 240 removal 
proceedings. Asylum officers and IJs will continue to apply the 
mandatory bars in their adjudications, when justified by the facts and 
the law. Individuals subject to a mandatory bar will not be found 
eligible for any immigration benefit foreclosed by the bar.
    The Departments agree with these commenters that a complicated 
process requiring full evidence gathering and determinations to be made 
on possible bars to eligibility is incompatible with the function of 
the credible fear interview as a screening mechanism designed to 
quickly identify potentially meritorious claims deserving of further 
consideration in a full merits hearing and to facilitate the rapid 
removal of individuals determined to lack a significant possibility of 
establishing eligibility for asylum, statutory withholding of removal, 
or protection under the CAT. As detailed further above, not applying 
mandatory bars at the credible fear screening stage both preserves the 
efficiency Congress intended in making credible fear screening part of 
the expedited removal process and helps ensure a fair process for those 
individuals found to have a significant possibility of establishing 
eligibility for asylum or statutory withholding of removal but for the 
potential applicability of a mandatory bar. The Departments have 
determined that these goals can be accomplished by returning to the 
historical practice of not applying mandatory bars at the credible fear 
screening stage.
    Comment: One commenter praised the Departments' proposal to 
generally not apply the statutory mandatory bars to asylum and 
withholding of removal during the credible fear screening process but 
urged the Departments to remove some of the limited exceptions to 
ensure any additional bars are not applied. The commenter stated that 
this is a step in the right direction, but the regulatory language 
should be expanded to eliminate consideration of the bars to asylum 
resulting from the Presidential Proclamation Bar IFR and TCT Bar rule.
    Response: The Departments acknowledge the suggestion and note that 
they plan to propose to modify or rescind the regulatory changes 
promulgated in the Presidential Proclamation Bar IFR \71\ and the TCT 
Bar rule \72\ in separate rulemakings. These rulemakings contain the 
bars that the commenter has urged the Departments to remove from 
consideration within the credible fear process. The Departments note 
that these two rules are not currently in effect. Federal courts have 
either vacated or enjoined the Departments from implementing both the 
TCT Bar IFR and TCT Bar rule as well as the Presidential Proclamation 
Bar IFR.\73\
---------------------------------------------------------------------------

    \71\ Executive Office of the President, OMB, OIRA, Spring 2021 
Unified Agenda of Regulatory and Deregulatory Actions, Noncitizens 
Subject to a Bar on Entry Under Section 212(f); Procedures for 
Protection Claims, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=1615-AC34 (last visited Mar. 14, 
2022); Executive Office of the President, OMB, OIRA, Fall 2021 
Unified Agenda of Regulatory and Deregulatory Actions, Noncitizens 
Subject to a Bar on Entry Under Section 212(f); Procedures for 
Protection Claims, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1615-AC34 (last visited Mar. 14, 
2022).
    \72\ See Executive Office of the President, OMB, OIRA, Spring 
2021 Unified Agenda of Regulatory and Deregulatory Actions, Bars to 
Asylum Eligibility and Procedures, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=1615-AC69 (last visited Mar. 14, 
2022); Executive Office of the President, OMB, OIRA, Fall 2021 
Unified Agenda of Regulatory and Deregulatory Actions, Bars to 
Asylum Eligibility and Procedures, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1615-AC69 (last visited Mar. 14, 
2022).
    \73\ See supra note 4 (discussing recent regulations and their 
current status).
---------------------------------------------------------------------------

    Comment: One commenter urged the Departments to implement the 
Global Asylum rule, including its requirement that USCIS asylum 
officers apply the mandatory bars to asylum and statutory withholding 
of removal at the credible fear stage. The commenter cited the 
Departments' justification for this provision in the preamble to the 
Global Asylum rule, arguing that it is ``pointless, wasteful, and 
inefficient to adjudicate claims for relief in section 240 proceedings 
when it can be determined that an alien is subject to one or more of 
the mandatory bars to asylum or statutory withholding at the screening 
stage.''
    Response: The Departments note that the Global Asylum rule has been 
enjoined, so it cannot be implemented at this time.\74\ The Departments 
acknowledge that in the preamble to the Global Asylum rule, they 
justified the departure from the historic practice of not applying the 
mandatory bars at the credible fear screening stage by arguing that it 
would be an inefficient use of an immigration court's resources to 
conduct full merits hearings on claims of individuals determined at the 
credible fear stage to be barred from asylum or statutory withholding 
of removal. However, as detailed further above, the Departments have 
subsequently determined that the stated goal of promoting 
administrative efficiency can be better accomplished through the 
mechanisms established in this rulemaking, rather than through broadly 
applying mandatory bars at the credible fear stage. The Departments now 
believe that it is speculative whether, had the Global Asylum rule been 
implemented, a meaningful portion of the EOIR caseload might have been 
eliminated because some individuals who were found at the credible fear 
screening stage to be subject to a mandatory bar would not have been 
placed into section 240 proceedings. On the other hand, requiring 
asylum officers to broadly apply the mandatory bars would, in many 
cases, increase credible fear interview and decision times. While the 
TCT Bar IFR was in effect, asylum officers were required to spend 
additional time during interviews determining whether the bar 
potentially applied, eliciting testimony related to the application of 
the bar, exploring whether an exception to the bar might have applied, 
and, if the noncitizen appeared to be barred and did not qualify for an 
exception to the bar, developing the record to ensure a legally 
sufficient determination could be made according to the higher 
reasonable fear standard. As discussed above, these efforts also 
increased the workload of supervisory asylum officers, Asylum Division 
Headquarters staff, USCIS

[[Page 18136]]

Office of Chief Counsel attorneys, and IJs. Presently, asylum officers 
ask questions related to all mandatory bars to develop the record 
sufficiently to flag potential bars but, since mandatory bars are 
generally not applied in the credible fear determination, the record 
does not need to be developed to the level of detail that would be 
necessary if the issue was outcome determinative for the credible fear 
determination. If a mandatory bar were outcome determinative, it would 
be necessary to develop the record sufficiently to make a decision 
about the mandatory bar such that, in many cases, the interview would 
go beyond its intended purpose of being a screening for potential 
eligibility for protection and rather become a decision on the form of 
protection itself. The level of detailed testimony necessary to make 
such a decision, in many cases and depending on the facts, would 
require asylum officers to spend more time carefully developing the 
record during the interview and conducting additional research 
following the interview. IJs reviewing negative credible fear 
determinations where a mandatory bar was applied would similarly face 
additional factors to consider in their review, depending on the facts, 
often undermining the efficiency of that process as well.
---------------------------------------------------------------------------

    \74\ See supra note 4 (discussing recent regulations and their 
current status).
---------------------------------------------------------------------------

e. Other Comments on the Proposed Credible Fear Screening Process
    Comments: One commenter asserted that the NPRM does not improve 
efficiencies in adjudication or lead to cost savings when compared to 
having the asylum adjudication process take place outside of the 
context of expedited removal and detention. The commenter asserted 
that, rather than streamlining the process, the NPRM creates a new 
layer of USCIS adjudication with possibly two reviews by an immigration 
court. The commenter also asserted that the NPRM fails to adopt a long-
suggested solution of allowing for grants of asylum at the credible 
fear interview stage or eliminating the credible fear screening process 
so that cases may proceed directly to the merits before USCIS.
    Response: The Departments note that the goals of this rulemaking 
include ensuring that noncitizens placed into the Asylum Merits process 
receive final decisions on their claims for protection as quickly and 
efficiently as possible, while also providing ample procedural 
safeguards designed to ensure due process, respect human dignity, and 
promote equity. In this rule, the Departments have outlined a process 
that continues to allow noncitizens to seek IJ review of asylum 
officers' negative credible fear determinations, as required by 
statute. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III). In addition, following an Asylum Merits 
interview before an asylum officer, if the asylum officer does not 
grant asylum, the noncitizen will have the opportunity to have their 
protection claims considered before an IJ in streamlined section 240 
removal proceedings. The Departments expect that this new process will 
allow protection claims to be adjudicated more quickly--whether granted 
or not--than they are under the current process (in which all 
individuals who receive positive credible fear determinations are 
referred for ordinary section 240 removal proceedings) and will provide 
procedural safeguards to ensure that noncitizens receive full and fair 
adjudications of their protection claims.
    The Departments have considered the commenter's proposals to 
eliminate credible fear screenings and adjudicate protection claims 
outside the context of the expedited removal process, as well as to 
allow for grants of asylum at the credible fear screening stage. While 
the Departments acknowledge the proposals, at this time, the 
Departments decline to adopt these proposals in favor of the approach 
presented in this rule. The Departments believe that a credible fear 
screening provides a meaningful opportunity for a noncitizen to provide 
USCIS asylum officers with valuable information pertaining to their 
protection claims, and that a subsequent Asylum Merits interview will 
allow noncitizens to expand on the details and circumstances 
surrounding their need for protection. On the other hand, the credible 
fear screening process allows the Departments to assess who may not be 
eligible for protection and promptly execute removal orders. Overall, 
the credible fear screening process that the Departments implement, 
which is consistent with congressional intent, allows for the 
Departments to identify noncitizens who may or may not be eligible for 
protection. See INA 235(b)(1), 8 U.S.C. 1225(b)(1). As for allowing 
grants of asylum at the credible fear screening stage, the Departments 
acknowledge the recommendation but are not addressing the matter in 
this rulemaking as it falls outside of the scope of this rule.
    Comments: Multiple commenters expressed support for the 
``clarification'' in the NPRM that only USCIS asylum officers would 
conduct credible fear interviews. Some of these commenters asserted 
that CBP officers who had previously performed these screenings were 
hostile and confrontational and were more likely to make negative 
credible fear determinations. Another commenter asserted that this 
``specification'' is consistent with congressional intent because the 
INA expressly requires asylum officers, who have professional training 
in asylum law and interview techniques, to conduct credible fear 
interviews.
    Response: The Departments acknowledge the commenters' support and 
agree that the rule clarifies that USCIS asylum officers will conduct 
credible fear interviews, which is consistent with the INA. See INA 
235(b)(1)(B)(i), 8 U.S.C. 1225(b)(1)(B)(i); 8 CFR 208.30(d). USCIS 
asylum officers receive training and possess experience in handling 
asylum and related adjudications; receive regular trainings on asylum-
related country conditions and legal issues, as well as nonadversarial 
interviewing techniques; and have ready access to country conditions 
experts. The Departments acknowledge the concerns of the commenters 
regarding the conduct of CBP officers but note that these issues fall 
outside of the scope of this rulemaking.
    Comments: One commenter suggested that the Departments should 
codify the elimination of the Prompt Asylum Claim Review (``PACR'') and 
the Humanitarian Asylum Review Process (``HARP'') by regulation, 
including by imposing enhanced procedural protections for all credible 
fear interviews, including that they not be conducted while in CBP 
custody. The commenter believes that, as the Departments revisit their 
asylum screening procedures, they should take this opportunity to 
prevent reintroduction of the programs by a future administration.
    Response: Pursuant to the E.O. on Migration's directive to cease 
implementing PACR and HARP, and to consider rescinding any orders, 
rules, regulations, guidelines, or policies implementing those 
programs, the Departments have ceased implementing those programs. See 
86 FR 8270. The Departments acknowledge the recommendation that those 
changes be codified by regulation, but further consideration and 
discussion of these programs fall outside of the scope of this 
rulemaking.
4. Applications for Asylum
a. Written Record of the Credible Fear Determination Created by USCIS, 
Together With the Service of the Credible Fear Determination, Treated 
as an Application for Asylum
    Comments: A commenter expressed support for the provision requiring

[[Page 18137]]

asylum officers to provide a summary of material facts and interview 
notes to asylum seekers during the credible fear screening process. 
Various commenters expressed concern about time constraints for asylum 
seekers to amend or supplement the asylum application. One commenter 
argued that the 7-day timeline for submitting an amended or 
supplemented application--10 days if mailed--would be infeasible due to 
the remote location of many asylum offices and the brief timeline 
between the interview notice and the scheduled interview. The commenter 
recommended that the rule impose a requirement that USCIS provide a 
minimum time frame for applicants prior to the Asylum Merits interview. 
Another commenter urged that more time be allowed for applicants and 
attorneys to develop a case. Some commenters argued that the credible 
fear documentation is often unreliable and that applicants will need 
adequate time and assistance to make modifications or to supplement the 
record. Citing the procedural limitations at proposed 8 CFR 
208.9(d)(1), many commenters recommended the Departments develop a more 
robust procedure for the asylum seeker or counsel to make corrections 
or statements at any stage of the process or during the Asylum Merits 
interview, while providing additional time to review the hearing 
transcript following the hearing.
    Another commenter suggested that the proposed rule be framed with 
the expectation that the asylum application will be supplemented, 
modified, or corrected prior to the hearing. The commenter also 
recommended the rule include a provision that would require asylum 
officers to encourage asylum seekers to correct or supplement the 
record.
    Several commenters expressed concern that supplementations, 
modifications, or corrections to the record would undermine the 
applicant's credibility and negatively impact the applicant's case 
outcome. One commenter recommended that the Departments change the rule 
to explicitly protect applicant credibility with respect to 
modifications, corrections, or supplementations to the credible fear 
determination.
    Finally, citing proposed 8 CFR 208.3(a)(2) allowing an applicant to 
amend, correct, or supplement information collected during expedited 
removal, a commenter stated it was unclear whether this provision would 
also apply to the asylum officer's credible fear interview notes.
    Response: The Departments appreciate comments supporting the 
treatment of a credible fear determination as an asylum application. In 
creating this efficiency, the Departments aim as well to reduce 
potential barriers to protection for eligible applicants. The 
Departments acknowledge the support for the provision stating that a 
copy of the application for asylum, including the asylum officer's 
notes from the interview and basis for the determination, will be 
provided to the noncitizen at the time that the credible fear 
determination is served. See 8 CFR 208.30(f), (g)(1). The Departments 
recognize that the initial screening determination may not necessarily 
capture details that an asylum applicant wishes to include for further 
consideration of the applicant's eligibility for asylum, statutory 
withholding of removal, or CAT protection. Therefore, it is important 
that an applicant be able to modify or supplement the application for 
asylum. However, given commenters' concerns about credibility, ability 
to modify credible fear notes, and general concerns with the proposed 
process, the Departments want to clarify that modifications or 
supplements should not seek to modify or amend the credible fear 
determination made by the asylum officer. Under this rule, applicants 
may modify, amend, or correct the biographic or credible fear 
information in the Form I-870, Record of Determination/Credible Fear 
Worksheet, or alternatively, may supplement the information collected 
during their credible fear interview. The Departments are making this 
change to allow for applicants to make corrections or further develop 
their claim but are making clear that a line-by-line correction of the 
asylum officers' notes is not necessary or expected for purposes of the 
process or an assessment of credibility. The Departments do not believe 
that added protections are needed to protect against potential negative 
impacts on credibility assessments. Where there are discrepancies or 
inconsistencies, an applicant may explain such statements in their 
supplemental materials or at the Asylum Merits interview. As is always 
the case with any credibility determination made in the context of a 
nonadversarial asylum interview before USCIS, if a credibility concern 
arises, such as potential inconsistent testimony, the applicant will be 
given the opportunity to explain the inconsistency and the concern may 
be resolved if the applicant provides a reasonable explanation, which 
in some instances may relate to the nature of the credible fear 
interview itself if that constitutes such a reasonable explanation in 
the specific case. In creating a streamlined process, the Departments 
do not expect the applicant to do a wholesale edit of a credible fear 
interview record, but rather wish to ensure that biographic and basic 
information about the fear claim is correct, so that the applicant may 
further develop the claim at the Asylum Merits interview. The 
Departments address comments relating to constraints on timeline below 
in Section IV.D.4.d of this preamble.
    Comments: A few commenters warned that the proposal to treat the 
record of the credible fear determination as an asylum application 
would create a conflict of interest because the asylum office would 
create the same record that it would then adjudicate, and the asylum 
office would develop the record during the credible fear screening and 
could then not grant asylum based on that record. A commenter asserted 
that the person preparing the asylum application is not simply writing 
down what the applicant says and that such person must be a zealous 
advocate for the applicant, which may include arguing for a novel 
interpretation of the law. Another commenter said that the NPRM must be 
revised to promote neutral decision-making based on objective evidence 
in the record and correct application of U.S. and international law. 
Another commenter stated that if adjudicators face significant backlogs 
or certain types of claims are viewed unfavorably, it is possible that 
asylum officers responsible for preparing and lodging asylum 
applications may feel pressure or incentivized to file fewer claims 
(e.g., by issuing a greater number of negative fear determinations) and 
suggested that robust protections through checks-and-balances 
(referencing firewalls, where possible, as an example) within USCIS may 
help alleviate such concerns.
    Response: The Departments disagree with the commenters that the 
asylum officer's role in preparing the asylum application through the 
creation of the credible fear record represents a conflict of interest 
with their role in adjudicating the asylum application of an individual 
found to have a credible fear in the first instance. By deeming the 
record of the credible fear interview to constitute the asylum 
application, the Departments ensure that the statements made by the 
noncitizen, including any arguments for a novel interpretation of the 
law, become part of the asylum application. Similarly, 8 CFR

[[Page 18138]]

208.30(d)(4) provides that counsel for the noncitizen may be present at 
the credible fear interview and for the asylum officer to permit 
counsel to make a statement at the end of the interview, which 
statement may include an argument for a novel interpretation of the 
law, and which would become part of the record. Furthermore, the rule 
provides at 8 CFR 208.4(c)(2) that noncitizens who receive a positive 
credible fear determination that is treated as the asylum application 
may supplement the information collected during the process that 
concluded with a positive credible fear determination. It further 
provides at 8 CFR 208.9(b) that asylum applicants may have counsel or a 
representative present at an Asylum Merits interview. Such 
representative will have an opportunity to make a statement or comment 
on the evidence presented upon completion of the hearing. See 8 CFR 
208.9(d). Taken together, these provisions ensure that noncitizens and 
their representatives have ample opportunity to engage in zealous 
advocacy, including the presentation of arguments for novel 
interpretations of the law. As neutral fact finders conducting 
nonadversarial interviews in both the credible fear screening and 
asylum adjudication contexts, asylum officers are duty-bound to 
consider the totality of evidence in the record and issue decisions 
based on the facts and the law. Their role in creating the credible 
fear record that will be treated as an asylum application thus poses no 
inherent conflict of interest. Additionally, different asylum officers 
may be making the credible fear determination and conducting the Asylum 
Merits interview, thus obviating any perceived appearance of conflict. 
Furthermore, contrary to the commenter's assertion, nothing in this 
rule pressures or incentivizes asylum officers to issue negative 
credible fear determinations that are not warranted by the facts and 
law applicable to an individual's case. This rule aims to address the 
backlog of asylum claims before EOIR by providing a more efficient 
mechanism for processing asylum claims originating in the credible fear 
screening process while guaranteeing due process and an objective 
application of the law to the facts in each case, not by pressuring 
asylum officers toward particular outcomes.
    Comments: Some commenters opposed treating the written record of 
the credible fear interview as an asylum application on the ground that 
it ``demands that USCIS assume the burden in what should be the non-
citizen's role in the asylum application process.'' These commenters 
stated that this feature of the rule will require the Government to 
adjudicate more asylum applications.
    Response: The Departments disagree that the IFR requires USCIS to 
assume a burden by treating the written record of the credible fear 
determination as an asylum application, as USCIS is required to produce 
this record as part of the credible fear screening process. While this 
change will mean that a greater percentage of noncitizens receiving a 
credible fear determination will subsequently receive a decision on the 
merits of their claims for asylum, statutory withholding of removal, 
and CAT, it will also mean that a final decision will be made in a more 
timely fashion than accomplished under the present process. As 
explained above, ensuring that all noncitizens who receive a positive 
credible fear determination quickly have an asylum application on file 
allows cases originating with a credible fear screening to be 
adjudicated substantially sooner than they otherwise would be--
regardless of whether the noncitizen is granted asylum or ordered 
removed. Under the current process, noncitizens who receive a positive 
credible fear determination may wait months or years before attending a 
Master Calendar Hearing, and the IJ may be asked for multiple 
continuances to any deadline for the noncitizen to file an asylum 
application. By treating the credible fear documentation as the 
application for asylum, both the Departments and the noncitizen avoid 
the burden caused by delays, continuances, and rescheduled hearings 
sought in order for the noncitizen to file an asylum application. See 
supra Section III.B of this preamble.
b. Date Positive Credible Fear Determination Served as Date of Filing 
and Receipt
    Comments: Multiple commenters supported the general idea that a 
positive credible fear determination would serve as an asylum 
application filing for purposes of the one-year filing deadline and to 
start the clock on employment authorization based on a pending asylum 
application, thereby helping asylum seekers avoid missing the one-year 
filing deadline and making it possible for asylum seekers to access 
employment authorization as quickly as possible. One commenter noted 
that this provision comports with the underlying policy goals of the 
one-year filing deadline. Other commenters provided opinions about the 
one-year filing deadline generally, suggesting that the one-year filing 
deadline has become a barrier to applicants as many miss the filing 
deadline through lack of knowledge or notice of the deadline, confusion 
about the process, believing they already filed, or due to the lack of 
coordination between DHS and DOJ leading to court proceedings not being 
timely initiated. One commenter provided examples of personal stories 
showcasing how many asylum seekers fail to meet the deadline due to 
trauma, grief, or hope for the possibility of safe return to their home 
country.
    Several commenters further reasoned that the proposed change would 
save both asylum officers and IJs time in that they will not have to 
adjudicate whether an asylum application was filed within a year or 
whether an exception to the filing deadline was established (and, if 
so, whether the application was filed within a reasonable period of 
time given the exception). Instead, the commenter suggested that 
adjudicators will be able to concentrate on the substance of the claim. 
Some commenters went further, suggesting that Congress eliminate the 
one-year filing deadline entirely, as the deadline effectively acts as 
a bar to asylum and has arbitrarily blocked ``tens of thousands of 
refugees'' with meritorious claims for asylum.
    Various commenters supported expedited access to EADs for asylum 
seekers deemed to have a credible fear of persecution. Commenters 
expressed strong support for any procedural changes that would make it 
easier for asylum seekers to obtain EADs as quickly as possible. An 
individual commenter supported eliminating any delay between a positive 
credible fear determination and the filing of an application for asylum 
by treating the written record of the determination by USCIS as an 
application for asylum and starting the waiting period for employment 
authorization based on a pending asylum application. The commenter said 
enabling asylum seekers earlier access to employment could reduce the 
public burden, reduce the burden on the asylum support network, and 
benefit asylum seekers in terms of equity, human dignity, and fairness. 
A few commenters discussed the importance of the employment 
authorization to asylum seekers, including the ability to build 
financial security; gain housing and food; pay for competent legal 
counsel; ensure their home gets heating and electricity; escape 
situations of abuse; and obtain a form of identification that may allow 
the individual to get a driver's license, access social benefits, open 
a bank account, register their child for school,

[[Page 18139]]

and enroll in health insurance. Citing research and examples from 
clients, commenters asserted that employment authorization not only 
allows asylum seekers to meet their basic daily needs and secure their 
fundamental rights, but it serves the economic interests of the United 
States through entrepreneurship, professional expertise, and tax 
revenue. A commenter argued that asylum seekers who have access to 
employment authorization would be less reliant on community resources 
and non-profit services. As expressed by commenters, individuals who 
experience barriers to employment authorization as a result of 
erroneous calculations in the starting and stopping of the waiting 
period for an EAD based on a pending asylum application are forced to 
work in exploitative situations and cannot support themselves or their 
families.
    Response: The Departments agree that ensuring that asylum seekers 
promptly have an application for asylum on file and that claims are 
timely adjudicated can help promote equity and fairness for 
individuals, including by allowing for earlier employment authorization 
on the basis of the asylum application or incident to status as an 
asylee, which in turn may reduce burdens on asylum support networks or 
the public. These fairness considerations were important factors in the 
Departments' decision to treat the record underlying the positive 
credible fear determination as an application for asylum for purposes 
of meeting the one-year filing deadline and for purposes of beginning 
the time period applicants must wait before applying for or receiving 
employment authorization based on a pending asylum application. Instead 
of placing all individuals with a positive credible fear determination 
into removal proceedings before EOIR, where they then would have to 
defensively file a Form I-589, Application for Asylum and for 
Withholding of Removal (that would also require USCIS Service Center 
Operations to expend resources intaking the form and scheduling 
applicants for biometrics), and have them appear for multiple hearings 
before EOIR (where ICE resources would also be required to represent 
the Government in proceedings), applicants with a positive credible 
fear determination who are placed into the Asylum Merits process will 
have their credible fear record serve as the asylum application without 
having to expend additional agency resources to perform intake or 
additional applicant resources to file a new asylum application. This 
process will ensure applicants can apply for an EAD as soon as possible 
once either the requisite time period has passed based on the record 
underlying the positive credible fear determination that serves as the 
asylum application or their asylum application is granted (making the 
individual eligible for employment authorization incident to status). 
Additionally, the rule will promote equity and due process by ensuring 
that individuals who are allowed to remain in the United States for the 
express purpose of having their asylum claim adjudicated after 
receiving a positive credible fear determination do not inadvertently 
miss the one-year filing deadline.
    The Departments also agree that having the record underlying the 
positive credible fear determination serve as the asylum application 
will create significant efficiencies in immigration court for 
noncitizens referred to streamlined section 240 proceedings when USCIS 
declines to grant asylum. Generally, noncitizens seeking asylum and 
related protections defensively during removal proceedings must 
complete and file the Form I-589, Application for Asylum and for 
Withholding of Removal. IJs must often grant continuances and delay 
hearings to allow noncitizens to complete the application. When a 
noncitizen files an asylum application defensively beyond the one-year 
filing deadline, the IJ and the parties must devote resources and time 
to resolving the issue of whether any exception to the one-year bar has 
been established and whether the application was thereafter filed 
within a reasonable period of time. However, this rule will increase 
efficiency during immigration court proceedings for certain cases 
originating from the credible fear process by reducing or eliminating 
the need for IJs to delay hearings for noncitizens to prepare the 
asylum applications and by obviating the need for IJs and the parties 
to spend time addressing issues related to the one-year filing 
deadline.
    Additionally, while the Departments agree that the issue of the 
one-year filing deadline for asylum is an important one, the comments 
related generally to the one-year filing deadline go outside the scope 
of the present rulemaking. The one-year filing deadline (including 
exceptions to the deadline) is set by Congress, INA 208(a)(2)(B), 8 
U.S.C. 1158(a)(2)(B).
    Comments: Some commenters offered general opinions about EADs for 
asylum seekers and expressed concern that any waiting period for 
employment authorization is too long. A commenter stated that DHS 
should rescind employment authorization rules issued by the prior 
Administration because they were issued by agency officials in 
violation of the APA. The commenter said this Administration should 
immediately restore the 150-day waiting period and 30-day processing 
time requirement for asylum seekers. Another commenter concluded that 
the proposed rule ``sidesteps'' rescinding the timeline that leaves 
asylum seekers without the basic means to provide for themselves and 
urged DHS to enable applicants to seek employment authorization based 
on a grant of parole under 8 CFR 274a.12(c)(11). This commenter stated 
that paroling asylum seekers without employment authorization simply 
ensures their exploitation and destitution.
    Response: The Departments acknowledge the comments related 
generally to EADs based on a pending asylum application, often referred 
to as ``(c)(8)'' EADs because of the regulatory provision under which 
USCIS may grant such EADs, 8 CFR 274a.12(c)(8). The ``(c)(11)'' EADs 
referred to by the commenter relate to another subsection of that same 
provision, 8 CFR 274a.12(c)(11), which authorizes USCIS to grant an EAD 
to a noncitizen paroled into the United States temporarily for urgent 
humanitarian reasons or significant public benefit. The eligibility 
criteria for EADs based on a pending asylum application are beyond the 
scope of the present rule. The present rule contains no substantive 
changes to EAD eligibility based on a pending asylum application or the 
requisite waiting period for applying for an EAD based on a pending 
asylum application. In the 2020 Asylum EAD Rule,\75\ DHS clarified that 
noncitizens who have been paroled into the United States after being 
found to have a credible fear or reasonable fear of persecution or 
torture may not apply under 8 CFR 274a.12(c)(11) (parole-related EADs), 
but may apply for employment authorization under 8 CFR 274a.12(c)(8) if 
they apply for asylum in accordance with the rules for (c)(8) EADs and 
are otherwise eligible. See 85 FR 38536. Those eligibility criteria are 
beyond the scope of the present rule. DHS welcomes comments related to 
these topics in separate, future rulemaking projects, as provided in 
the Spring and Fall 2021 Unified Agenda of Regulatory and Deregulatory 
Actions.
---------------------------------------------------------------------------

    \75\ Asylum Application, Interview, and Employment Authorization 
for Applicants, 85 FR 38532 (June 26, 2020). On February 7, 2022, in 
AsylumWorks v. Mayorkas, No. 20-cv-3815, 2022 WL 355213, at *12 
(D.D.C. Feb. 7, 2022), the United States District Court for the 
District of Columbia vacated the 2020 Asylum EAD rule.

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

[[Page 18140]]

c. Inclusion of Applicant's Spouse and Children
    Comments: Several commenters asserted that the rule should permit 
asylum applicants to add a spouse and children or supplement family 
information at any point during the application process. A few 
commenters suggested that the proposed rule's inflexibility with regard 
to changes to family information makes it more restrictive than the 
current rule, undermines the Departments' goal of efficiency, and 
contradicts the Administration's promise to keep families together. 
Other commenters reasoned that applicants may fail to discuss relevant 
family members during the credible fear process due to stress, trauma, 
fear, confusion regarding the asylum process and law, or because the 
asylum officer fails to inquire about family members. One commenter 
added that individuals should not be forced to choose between their own 
safety and reuniting with family members.
    One commenter stated that the proposed rule fails to consider how 
the provision of a credible fear decision automatically constituting 
the filing of an asylum application would affect the many asylum 
seekers who do not cross the border with their family members (e.g., 
different times and places, in groups or alone) and are thereby unable 
to join their claims. The commenter stated that the rule may result in 
family separations when some family members' asylum cases are approved 
and others are not, where they could have otherwise been joined. One 
commenter concluded that requiring spouses and children to arrive 
concurrently with the principal applicant wrongly deprives asylum 
seekers of protection for their spouse or children and is furthermore 
inefficient as USCIS will have to adjudicate a Form I-730, Refugee/
Asylee Relative Petition, for family members who do not make it into 
the credible fear case. Another commenter described the Form I-730 
process and remarked that the adjudicatory burden on USCIS will 
continue for years as more forms come into play instead of USCIS 
adjudicating the whole family's adjustment applications all at once. A 
commenter also requested information about what will be the filing date 
in situations where multiple family members name each other as 
dependents and what will happen to dependents if the principal 
applicant is not granted asylum.
    Response: The Departments acknowledge comments related to 
dependents on an asylum application for individuals placed in the 
Asylum Merits process after receiving a positive credible fear 
determination. The spouse or child (unmarried, under 21 years old) of a 
principal asylee may derive asylum status from their spouse or parent. 
The derivative asylee may be included on the original application for 
asylum, or, if not included as a dependent on the application, the 
principal asylee may petition for their relatives by filing a Form I-
730, Refugee/Asylee Relative Petition, within two years of the grant of 
asylum. Like affirmative and defensive asylum applications, a grant of 
asylum to the principal asylum applicant following an Asylum Merits 
interview will confer asylum status on their spouse or children if they 
are included as dependents in the application and not subject to any 
mandatory bars to asylum applicable to dependents. Principal applicants 
will be allowed to include dependents on their application in the new 
process if the dependents also entered the United States concurrently 
with the principal applicant and are on the same credible fear case, 
or, in the alternative, if the spouse or child already has a pending 
application under this new Asylum Merits process before USCIS. 
Additionally, a principal asylee may file a Form I-730, Refugee/Asylee 
Relative Petition, on behalf of any of their qualifying derivative 
family members after they are granted asylum. The Departments are 
cognizant of the concerns expressed by commenters about the need for 
flexibility in allowing dependents to be added to an asylum case under 
the new Asylum Merits process and contend that the procedures for 
dependents outlined in the IFR are as flexible as possible, while still 
ensuring the process can run smoothly and efficiently. The Departments 
would like to highlight that, in the credible fear process, applicants 
are specifically asked about all of their family members, and this 
information is recorded in the Form I-870, Record of Determination/
Credible Fear Worksheet. If the applicant receives a positive credible 
fear determination and is placed in the new Asylum Merits process, they 
will be allowed another opportunity to review and correct the 
information in their Form I-870. Accordingly, applicants will have 
ample opportunity to ensure that the information related to their 
family members is accurately reflected in their application under the 
new process. And if there are any qualifying family members that 
entered with the applicant or are already in the United States and also 
have an asylum application pending with USCIS after a positive credible 
fear finding, the principal applicant is free to include them in his or 
her application. If for any reason a principal applicant fails to add a 
dependent to their initial asylum application, the principal applicant 
is not prevented from having that family member derive asylee status 
because the principal applicant is free to petition for that family 
member if and when the principal applicant is granted asylum, either by 
USCIS or by EOIR. With this IFR, the Departments are now establishing a 
procedure under which the principal applicant will receive a decision 
on the principal applicant's case before USCIS and, if the principal 
applicant is not granted asylum, the principal applicant and any 
dependents on the case who are not in lawful status will be served with 
an NTA in immigration court and placed into streamlined section 240 
removal proceedings before an IJ. In streamlined section 240 
proceedings, the principal applicant may still be granted asylum and, 
if so, may confer that asylum status upon all of the qualifying 
dependents on the case. If the principal applicant is not granted 
asylum, then the principal applicant will be considered for statutory 
withholding of removal or withholding or deferral of removal under the 
CAT, and the IJ will also consider claims of the dependents that were 
elicited by the asylum officer during the Asylum Merits interview to 
determine if they are eligible for asylum or any other form of relief 
or protection.
    In response to the questions presented by commenters, the filing 
date will reflect the filing of the principal applicant. If a spouse or 
child is a dependent on an application under the new Asylum Merits 
process and also files as a principal applicant themselves, then the 
filing date for the dependent spouse or child's application will be 
either (1) the date the dependent spouse or child's Form I-589 was 
filed or (2) the date of service of the positive credible fear 
determination on their spouse or parent, whichever date is earlier. 
Additionally, if the principal applicant is not granted asylum, then 
the principal applicant and any dependents who are not in lawful status 
will be issued an NTA and placed in streamlined section 240 
proceedings. See 8 CFR 208.14(c)(1). If there is a dependent under the 
new process who also has a pending affirmative asylum application 
before USCIS, then USCIS will adjudicate that asylum application on its 
own before placing that individual in section 240 proceedings and, if 
that individual is eligible for asylum as a principal applicant, the

[[Page 18141]]

individual would not be referred to immigration court.
    Additionally, under the revised 8 CFR 208.16, for cases under the 
jurisdiction of USCIS following a positive credible fear determination, 
if USCIS found the principal applicant ineligible for asylum, though 
USCIS cannot grant withholding or deferral of removal, the asylum 
officer is authorized to make a determination on the principal 
applicant's eligibility for statutory withholding of removal or 
withholding or deferral of removal under the CAT if the principal 
applicant shows eligibility for such relief based on the record before 
USCIS. If USCIS determines that the principal applicant has shown 
eligibility for withholding or deferral of removal based on the record 
before USCIS, that determination will be given effect by the IJ if the 
IJ finds the principal applicant ineligible for asylum and issues a 
final order of removal, unless DHS demonstrates that evidence or 
testimony specifically pertaining to the respondent and not included in 
the record of proceedings for the USCIS Asylum Merits interview 
establishes that the respondent is not eligible for such protection(s), 
pursuant to the new 8 CFR 1240.17(i)(2). As described in 8 CFR 
1240.17(i), once in section 240 proceedings, under the new process, the 
IJ will conduct a de novo review of the principal applicant's 
eligibility for asylum, and if the principal applicant is not granted 
asylum, will consider de novo the principal applicant's eligibility for 
statutory withholding of removal and withholding or deferral of removal 
under the CAT in cases where USCIS did not determine that the 
respondent was eligible for such relief. In cases where the principal 
applicant is not granted asylum by the IJ, the IJ will also review 
asylum eligibility for all other family members and if one family 
member is found eligible for asylum by EOIR and the others can receive 
asylum as derivative asylees, it will not be necessary for the IJ to 
evaluate the remaining family members' eligibility for asylum or 
withholding or deferral of removal. If a respondent is not granted 
asylum and cannot otherwise derive asylum from a family member, then 
the IJ will review each respondent's eligibility for statutory 
withholding of removal and withholding or deferral of removal under the 
CAT.
    Comments: One commenter requested the regulatory language be 
amended to define ``accompanying family members'' in 8 CFR 208.30, 
including by specifying what family members are included (e.g., 
siblings, cousins, etc.) and what including the family members on the 
form would accomplish.
    Response: The Departments acknowledge the comment related to who 
may be included as an accompanying family member in a credible fear 
determination, but fully specifying the details of that process is 
beyond the scope of this rulemaking. In most cases, however, the 
Departments understand an ``accompanying family member[ ]'' to include 
a parent or sibling.
    Comments: A commenter warned that the proposed inclusion of an 
applicant's spouse and children in the request for asylum conflicts 
with existing regulations. The commenter described what they called 
``riders,'' or those individuals who previously filed affirmative 
applications and are already in the country and remarked that existing 
regulations require riders not originating from a credible fear claim 
to receive NTAs and be referred to immigration court for section 240 
removal proceedings (8 CFR 208.14(c)(1)). The commenter argued that the 
proposed rule does not address this or how this circumstance would work 
procedurally and asserted that riders cannot be included in grants of 
statutory withholding of removal or protection under the CAT.
    Response: The Departments acknowledge the comments related to so-
called ``riders.'' The present rulemaking does not change the governing 
law with respect to who may derive asylum from a principal applicant 
granted asylum in the United States. INA 208(b)(3), 8 U.S.C. 
1158(b)(3). Further, the present rulemaking is not changing the status 
quo governing withholding of removal or deferral of removal with 
respect to an individual--both forms of relief or protection are 
individual in nature and a dependent cannot derive any status from a 
family member's grant of withholding or deferral of removal. The 
present rulemaking is not changing anything about the nature of 
withholding or deferral of removal in that neither confer any type of 
status to a dependent. If a principal applicant is not granted asylum 
by USCIS under the new Asylum Merits process, then the principal 
applicant and all dependents included in the request for asylum who are 
not in lawful status will be issued an NTA and placed in streamlined 
section 240 proceedings, as described above. If one of the dependents 
does have a pending affirmative asylum application before USCIS, then 
that application will be adjudicated as well, but if that individual is 
not found eligible for asylum on their own, then they will also be 
issued an NTA and placed in section 240 proceedings if they are not 
otherwise in lawful status. Accordingly, the concerns expressed by the 
commenter related to ``riders'' appear to be unfounded, as anyone 
without legal status who is found ineligible for asylum by USCIS, 
whether in the affirmative asylum process or under this new Asylum 
Merits process, will be issued an NTA and placed in section 240 
proceedings before an IJ.
d. Due Process in Asylum Applications
    Comments: Some commenters emphasized the importance of formal 
hearings and a presentation of all available evidence in a court 
setting to, in their opinion, ensure due process. A few commenters 
argued that it was important for asylum claims to be heard before an 
independent, impartial judiciary.
    Response: The Departments disagree that a court setting or 
independent judiciary is necessary or otherwise required to allow for 
due process. See, e.g., 16D C.J.S., Constitutional Law sec. 2010 (2022) 
(``Due process always stands as a constitutionally grounded procedural 
safety net in administrative proceedings[.]''). Moreover, transfer of 
authority to the Judiciary is outside the Departments' authority and 
beyond the scope of this rulemaking. The Departments only have the 
authority to promulgate rulemaking with respect to the authority 
already delegated to them by statute. Congress has expressly recognized 
the unique and specialized role of asylum officers in making credible 
fear determinations and in adjudicating the merits of asylum 
applications. Congress explicitly designated that ``asylum officers'' 
are responsible for conducting credible fear interviews and making 
credible fear determinations. INA 235(b)(1), 8 U.S.C. 1225(b)(1). 
Further, an ``asylum officer'' is defined by statute at INA 
235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E), as an immigration officer who: 
(1) ``has had professional training in country conditions, asylum law, 
and interview techniques comparable to that provided to full-time 
adjudicators of applications under'' INA 208, 8 U.S.C. 1158, and (2) 
``is supervised by an officer who meets the condition described in 
clause (i) and has had substantial experience adjudicating asylum 
applications.'' Thus, Congress specifically contemplated that asylum 
officers act as full-time adjudicators of asylum applications and have 
specialized training to conduct such adjudications. Moreover, in 
addition to laying out the required background and role of asylum 
officers who both conduct credible fear determinations and adjudicate 
applications for asylum under INA 208,

[[Page 18142]]

8 U.S.C. 1158, Congress emphasized the important role of asylum 
officers in adjudicating asylum applications filed by even the most 
vulnerable applicants. In the William Wilberforce Trafficking Victims 
Protection Reauthorization Act of 2008, Public Law 110-457, 122 Stat. 
5044, Congress provided that asylum officers have initial jurisdiction 
over any asylum application filed by an unaccompanied child, and 
therefore asylum officers are specifically empowered to take all 
necessary steps to render a decision on an affirmative asylum case 
filed by a UAC. INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C). Accordingly, 
Congress has repeatedly recognized the vital role of asylum officers in 
various contexts related to asylum applications.
    Under the INA, asylum officers are authorized to make initial 
credible fear determinations and are also the only adjudicators 
authorized to conduct the initial interview of the most vulnerable 
asylum applicants, unaccompanied children, even where those children 
may have already been placed into section 240 removal proceedings 
before EOIR. In addition to these very particular roles that Congress 
assigned to asylum officers, asylum officers are also recognized as 
full-time adjudicators of asylum claims under INA 208, 8 U.S.C. 1158. 
Asylum officers receive extensive training in substantive law and 
procedure, nonadversarial interview techniques and record development, 
decision writing, research skills, working with interpreters, and 
interviewing vulnerable individuals, including children; lesbian, gay, 
bisexual, transgender, queer, and intersex (``LGBTQI'') persons; 
survivors of gender-based violence; and survivors of torture and 
trauma. The extensive and well-rounded training asylum officers receive 
is designed to enable them to conduct nonadversarial interviews in a 
fair and sensitive manner. Indeed, Congress recognized the special role 
of asylum officers when it vested asylum officers, not IJs, with 
initial jurisdiction over asylum applications submitted by 
unaccompanied children even where they have already been placed in 
section 240 removal proceedings before EOIR. The present rulemaking 
builds on the already existing role of asylum officers in adjudicating 
affirmative asylum applications to have asylum officers also adjudicate 
asylum applications of individuals retained by or referred to USCIS for 
further consideration through an Asylum Merits interview following a 
positive credible fear determination. Additionally, after considering 
comments and adjusting the present rule such that asylum officers will 
no longer issue removal orders under the framework of this rule as 
described above and below, USCIS will not be issuing orders related to 
statutory withholding of removal or withholding or deferral of removal 
under the CAT. In those cases in which the asylum officer finds that an 
individual is not eligible for asylum, the asylum officer will 
determine whether the individual is nonetheless eligible for 
withholding of removal under 8 CFR 208.16(b) or (c) or deferral of 
removal under 8 CFR 208.17. As proposed in the NPRM, asylum officers 
will determine applicants' eligibility for withholding of removal, 
thereby maintaining the due process protections that already exist 
within affirmative asylum interviews conducted by USCIS asylum 
officers. See 8 CFR 208.9. While the Departments appreciate the 
concerns expressed by commenters concerned with protecting the due 
process rights of asylum applicants, the Departments are confident that 
those rights will be preserved through the nonadversarial interview 
process conducted by highly trained and specialized asylum officers, 
with a de novo review of the asylum claim by an IJ if USCIS finds the 
applicant ineligible for asylum. The IJ will also review any claim to 
statutory withholding of removal or withholding or deferral of removal 
under the CAT and any other potential form of relief or protection if 
the applicant is not granted asylum. Moreover, the rule does not 
contemplate any change to the noncitizen's ability to appeal an IJ's 
decision.
    Comments: Various commenters expressed concern that the proposed 
rule does not establish a minimum amount of time between the positive 
credible fear determination and the Asylum Merits interview for asylum 
seekers to obtain counsel and prepare before the hearing. One commenter 
asserted that the rule seeks to ``unreasonably shorten'' asylum 
seekers' timeline for finding representation and gathering evidence--
both time consuming processes that may require additional steps such as 
translation or mail services. Another commenter argued that the lack of 
``meaningful temporal space'' between the credible fear determination 
and the asylum hearing would wrongly favor an efficient administrative 
process over a reasoned and fair decision of law. Another commenter 
suggested that provisions to expedite and replace the existing 
application process would go against congressional intent to identify 
and protect the rights of genuine asylum seekers to due process. 
Similarly, another commenter expressed concern that the rule's silence 
on the timeline between the credible fear determination and the hearing 
before an asylum officer may frustrate the statutory right of access to 
counsel. While the rule would clarify the right to representation 
during the hearing, some commenters expressed the concern that asylum 
seekers would not be able to secure counsel in practice. They argued 
that the time between the credible fear determination and the hearing 
before an asylum officer is short and would not account for applicants 
with limited resources and language barriers.
    Several commenters expressed concern that applicants would 
encounter difficulties in meeting the evidentiary requirements for the 
asylum hearing due to trauma, time restraints, detention, and other 
compounding factors. Specifically, commenters argued that survivors of 
trauma are often most likely to have trouble gathering sufficient 
evidence to support their application due to time restraints, the 
unavailability of documentary evidence and services, intimidation, and 
unawareness of available resources. One commenter expressed concern 
that the new credible fear process would not provide enough time for 
survivors of trauma or torture to recover and adequately prepare for 
interviews. One commenter claimed that any proposal to amend the rule 
that overlooks the intersection of trauma and the outcome of an asylum 
application will ``result in systematic refoulement.'' Similarly, 
another commenter argued that some individuals--including those with 
low levels of literacy, those with language access issues, and those 
who have suffered from trauma--may require additional time and 
assistance to complete or amend their applications.
    Many commenters recommended that the rule ensure meaningful 
opportunities for asylum seekers to find counsel and gather evidence by 
establishing an adequate timeline between the credible fear 
determination and the Asylum Merits interview before an asylum officer. 
One commenter recommended that the rule should provide a minimum 90-day 
timeline to submit evidence to USCIS between the credible fear 
determination and the Asylum Merits interview.
    Response: The Departments acknowledge concerns raised related to 
the amount of time provided between service of the positive credible 
fear determination and the Asylum Merits interview before USCIS. The 
Departments understand that applicants

[[Page 18143]]

will need time to review their applications and supporting 
documentation, consult with representatives, and prepare for their 
Asylum Merits interview. At the same time, the underlying purpose of 
the present rule is to make the process more efficient by streamlining 
proceedings that heretofore have been drawn out for months or even 
years. To balance the efficiency goals of the present rule with the due 
process concerns raised by commenters and shared by the Departments, 
DHS is clarifying at 8 CFR 208.9(a)(1) that there will be a minimum of 
21 days between the service of the positive credible fear determination 
on the applicant and the date of the scheduled Asylum Merits interview. 
While recognizing that affirmative asylum applicants often spend a 
greater amount of time preparing their asylum application in advance of 
filing and have more time inside the United States to procure and 
consult with counsel, the Departments also must consider that delaying 
the Asylum Merits interview for any considerable length of time to 
allow applicants in the Asylum Merits process a similar amount of time 
would undermine the basic purpose of this rule: To more expeditiously 
determine whether an individual is eligible or ineligible for asylum. 
Accordingly, the Departments must weigh the benefits associated with 
more expeditiously hearing and deciding claims originating in the 
context of expedited removal and the credible fear screening process 
with the challenge applicants and representatives may face in preparing 
for the Asylum Merits interview during a limited time period, including 
where language barriers and other challenges raised in the comments are 
present. Thus, after careful consideration, the Departments have 
determined that a 21-day minimum time frame between service of the 
positive credible fear determination and the Asylum Merits interview is 
the most reasonable option. This 21-day minimum time frame will strike 
an appropriate balance between achieving operational efficiency and 
still ensuring fairness by providing applicants and their 
representatives time to prepare for the Asylum Merits interview.
    Comments: Citing research, commenters also suggested that the 
location of the asylum interview, in addition to the timeline, affects 
asylum seekers' ability to gather evidence and find counsel, including 
where such asylum seekers are survivors of trauma with scarce 
resources. A commenter suggested that the ability to access counsel and 
have a legal representative present at the Asylum Merits interview 
would only be meaningful if the hearing takes place in an accessible 
location and if the applicants have sufficient opportunity to gather 
evidence and prepare. Considering the importance of location in 
assessing due process concerns, one commenter urged the Departments to 
provide more clarity on the location of the nonadversarial Asylum 
Merits interviews to ensure meaningful access to legal representation 
and adequate opportunities to meet evidentiary requirements. A 
commenter also suggested the rule include a two-hour limit on the 
distance between the location of the scheduled interview and the 
applicant's location and provide an automatic mechanism for changing 
the location if a person moves within the United States. Another 
commenter recommended that this rulemaking provide a right to seek a 
change of venue to avoid the risk of an ``unfair burden'' on asylum 
seekers who move after being released from detention. A commenter 
suggested that the Asylum Merits interview occur with USCIS at the 
asylum seeker's initial destination outside of the expedited removal 
process.
    Response: The Departments acknowledge the comments related to 
location of the Asylum Merits interview and potential changes in the 
location of the interview. Under the present rule, following the 
positive credible fear determination where the applicant is placed into 
the Asylum Merits process, the applicant's interview will be scheduled 
with the asylum office with jurisdiction over their case. Just like 
affirmative asylum cases, sometimes the asylum office with jurisdiction 
over the case may be distant from the applicant's residence. 
Unfortunately, because USCIS has limited asylum offices and office 
space, it would be impossible to always ensure an applicant only has to 
travel two hours or less to appear at an interview, but USCIS makes 
every reasonable effort to schedule applicants in a convenient 
location, including by orchestrating asylum interviews at circuit ride 
locations (i.e., locations other than an asylum office, such as a USCIS 
field office, where USCIS conducts asylum interviews) throughout the 
United States when possible and practicable. As for the comments 
recommending that the hearing should take place at the asylum 
applicant's initial destination outside of the expedited removal 
process, USCIS agrees that this is the appropriate venue when the 
applicant has been paroled, and that is why the asylum office with 
jurisdiction over the applicant's place of residence following the 
positive credible fear determination will be the office with 
jurisdiction over the applicant's case. Additionally, if an applicant 
changes residence prior to an Asylum Merits interview and notifies 
USCIS of the change, just as with an affirmative asylum interview, 
USCIS will attempt to reschedule the applicant's interview to occur at 
the office with jurisdiction over the applicant's new residence 
location. USCIS also appreciates the comments related to applicants 
securing access to counsel for their Asylum Merits interview. Just as 
with affirmative asylum interviews, USCIS will make reasonable efforts 
to ensure applicants are scheduled for their Asylum Merits interview in 
a time and place that ensures their representatives of record can 
attend and meaningfully participate in the interview.
    Comments: Some commenters suggested that requests for adjournment 
or continuances should be assessed more liberally where the delay 
sought is to find an attorney or gather supporting evidence. One 
commenter recommended that the rule decouple the proposed definition of 
``filing'' a claim from the time periods specified in the INA, 
including the 45 days required for initial consideration and 180 days 
for completion.
    Response: The Departments acknowledge the comments related to the 
timeline for applications and potential continuances. The Departments 
cannot change the statutory procedures governing asylum under INA 208, 
8 U.S.C. 1158, including the procedures set out in INA 208(d)(5)(A), 8 
U.S.C. 1158(d)(5)(A), related to security checks and the general 
framework indicating that in the absence of exceptional circumstances, 
the initial interview or hearing on the asylum application shall 
commence no later than 45 days after the date an application is filed, 
and in the absence of exceptional circumstances, the administrative 
adjudication of the application, not including administrative appeal, 
shall be completed within 180 days of the filing date. Accordingly, it 
is not within the Departments' authority to decouple the filing date 
from the timeline for adjudicating the asylum application. Regarding 
requests to reschedule, applicants should follow the instructions on 
the USCIS website and their appointment notices, just as they do with 
affirmative asylum interviews.
    Comments: Various commenters expressed concern about time 
constraints for asylum seekers to amend

[[Page 18144]]

or supplement the asylum application. One commenter argued that the 7-
day timeline for submitting an amended or supplemented application--10 
days if mailed--would be infeasible due to the remote location of many 
asylum offices and the brief timeline between the interview notice and 
the scheduled interview. The commenter recommended that the rule impose 
a requirement that USCIS provide at least six weeks' notice to 
applicants prior to the asylum hearing.
    Response: As mentioned in the response to comments related to what 
form the application for asylum will take under the new rule and how it 
may be supplemented or modified, the Departments recognize that the 
initial credible fear screening determination may potentially include 
errors or misunderstandings and may not necessarily capture every 
detail an applicant would like to provide. The Departments agree with 
commenters that it is important for applicants to be able to modify or 
supplement their applications for asylum to account for such 
misunderstandings or errors or to add nuance. However, also as 
mentioned in the earlier response, the Departments note that 
modifications or supplements should only take the form of correcting 
the biographic or credible fear information in the Form I-870, Record 
of Determination/Credible Fear Worksheet, or providing additional 
evidence beyond that collected during the credible fear interview. The 
credible fear determination and the notes collected by the asylum 
officer are part of the record of determination and form the basis for 
establishing a credible fear of persecution or torture, but it would 
not be practical or possible to expect the applicant to review the 
entirety of the asylum officer's notes or the asylum officer's own work 
product in making the credible fear determination and make 
modifications to those items.
    As further explained in the response to previous comments on the 
topic of what form amendments may take, in creating a streamlined 
process, the Departments do not expect the applicant to do a wholesale 
edit of a credible fear interview, but rather wish to ensure that 
biographic and basic information about the fear claim is correct, so 
that the applicant may further develop the claim at the Asylum Merits 
interview. Accordingly, while the Departments appreciate commenters' 
concerns about the time frame under which applicants may be expected to 
make corrections or provide supplemental evidence, the Departments 
believe that the provided time frame achieves the best possible balance 
between allowing applicants sufficient time to present their evidence 
and achieving a streamlined process. The six-week notice time frame 
suggested by one commenter would be twice as long as the notice 
provided to affirmative asylum applicants for their interviews. While 
the commenter might consider six weeks an ideal time frame to prepare 
for an asylum interview, it would not be practical or achieve the goals 
of operational efficiency to wait six weeks for the interview to take 
place in every case. As mentioned above, however, there will be a 
minimum time frame between the positive credible fear determination and 
the Asylum Merits interview of 21 days. Also, as described above, USCIS 
believes this time frame best reaches the goals of providing applicants 
in this new process with adequate time to prepare for their Asylum 
Merits interviews and allowing expeditious adjudications. As for the 
time frame for submitting additional evidence, USCIS is providing 
applicants in the Asylum Merits process with evidentiary submission 
requirements that also reflect that careful balance. It would be 
impractical for USCIS to require all evidence to be submitted at the 
credible fear stage, and USCIS recognizes that applicants may need time 
to collect some additional evidence. Moreover, while the burden of 
proof is on the applicant to establish eligibility for asylum, as 
always with any asylum case, documentary evidence is not required to 
sustain the applicant's burden of proof in establishing asylum 
eligibility; testimony alone may be sufficient where it is credible, 
persuasive, and refers to specific facts sufficient to demonstrate that 
the applicant is a refugee. INA 208(b)(1)(B)(i), (ii), 8 U.S.C. 
1158(b)(1)(B)(i), (ii). When applicants seek to provide documentary 
evidence to sustain their burden of proof, USCIS welcomes that evidence 
but also must place some limit on the time for submission to allow 
asylum officers to meaningfully engage with the evidence. Asylum 
officers must review each case file, including the evidence the 
applicant has submitted in support of the applicant's claim, 
sufficiently in advance of the Asylum Merits interview to begin to 
assess its probative value, conduct additional research if needed, and 
prepare to elicit testimony from the applicant about such evidence. The 
Departments agree with commenters that applicants need time to locate 
and submit such evidence, but asylum officers also need time to review 
and examine such evidence in advance of the interview if the evidence 
is to be meaningfully explored. Accordingly, the Departments consider 
that requiring additional evidence be submitted at least 7 days in 
advance of the interview if submitted in person, or postmarked 10 days 
in advance if mailed, is a reasonable time given the various interests 
at play in setting up such a time frame. While DHS appreciates the 
specific comment related to the challenge of submitting evidence in 
person, that is precisely why DHS is allowing an additional 3 days for 
mailing if evidence is submitted via mail. This time frame allows for 
asylum offices to receive and properly file the evidence and for asylum 
officers to review submissions as they prepare for Asylum Merits 
interviews. This time frame also preserves the time available during 
the Asylum Merits interview to meaningfully elicit testimony from an 
applicant and allow representatives time to ask follow-up questions or 
provide additional statements if needed, instead of taking up that time 
with the asylum officer's review of just-submitted evidence. Notably, 
this time frame for the Asylum Merits interview is more generous to 
applicants than the time frame provided at current 8 CFR 208.9, which 
requires evidence to be submitted at least 14 days in advance of the 
interview. Given the realities of the COVID-19 pandemic, current 
operational practice is to require evidence to be submitted 7 days in 
advance of an affirmative asylum interview if submitted in person, and 
10 days if submitted via mail. Moreover, if there is evidence that the 
applicant was unable to procure during the required time frame and that 
the applicant believes is highly material or essential to the 
applicant's case, the asylum officer has discretion to allow the 
applicant a brief extension to provide such evidence. Likewise, if an 
asylum officer identifies a piece of evidence that is essential, such 
as evidence necessary to establish a derivative relationship for a 
member of the case, the asylum officer will issue a request for 
evidence to the applicant and provide a reasonable time to respond. And 
as mentioned above, documentary evidence is not required to sustain the 
applicant's burden of proof in establishing asylum eligibility--
testimony alone may be sufficient where it is credible, persuasive, and 
refers to specific facts sufficient to demonstrate that the applicant 
is a refugee. INA 208(b)(1)(B)(i), (ii), 8 U.S.C. 1158(b)(1)(B)(i), 
(ii). Furthermore, even in cases where the asylum officer determines 
that the applicant should provide evidence that corroborates otherwise 
credible testimony, if the applicant does not have the evidence

[[Page 18145]]

and cannot reasonably obtain the evidence, it is not required to be 
provided. Id. Thus, even where the applicant may wish to provide 
additional documentary evidence, but it is not reasonably available in 
the time frame provided, the applicant may still meet the burden of 
establishing asylum eligibility.
    Comments: Several commenters asserted that applicants must be 
allowed adequate representation when preparing an asylum application; 
one commenter explained that such representation is necessary to ``make 
an effective submission'' while ``meet[ing] the standards of modern 
corroboration requirements'' in adjudication. Commenters argued that 
asylum seekers may not understand what nuances in the record could 
affect their case due to the complex, politicized, and evolving nature 
of asylum standards. Therefore, as one commenter asserted, the 
opportunity to amend or correct the credible fear interview record 
would only be meaningful if applicants have access to adequate 
interpretation and legal services. Similarly, another commenter stated 
that correcting or supplementing a credible fear interview record could 
be ``difficult or impossible'' without legal counsel. A commenter added 
that a lack of resources, poor knowledge of systems, and obstacles 
associated with detention intensify the need for counsel in the asylum 
application process. Considering these challenges, the commenter 
recommended that agencies inform asylum seekers--in their own 
language--of their right to counsel, to present additional evidence, 
and to expand the grounds of the asylum claim. Additionally, the 
commenter recommended that agencies clarify the higher standards at the 
asylum interview compared with the credible fear interview and provide 
a contact list of local legal services providers.
    Response: The Departments acknowledge the comments related to the 
role of counsel for applicants who are placed in the Asylum Merits 
interview process. As mentioned above in response to comments about 
amending or supplementing the application, the Departments do not 
expect the applicant to conduct a word-by-word, line-by-line review of 
the asylum officer's credible fear interview and make corrections to 
the notes or the asylum officer's work product. Instead, the 
Departments would welcome any corrections to the applicant's biographic 
information, clarifications the applicant would like to make to the 
Form I-870, or any additional evidence the applicant would like to 
provide in support of the application. In any event, the Departments 
agree with commenters that information related to the process in which 
the applicant is placed and access to counsel are of utmost importance. 
That is why the Departments plan to ensure that when an individual is 
placed in the Asylum Merits process, the individual is provided with a 
fact sheet explaining the process, including the relevant standards, 
and a contact list of free or low-cost legal service providers similar 
to that which applicants would receive in section 240 removal 
proceedings before EOIR.
    Comments: Many commenters reiterated the challenges asylum seekers 
experience in obtaining access to adequate counsel and developing their 
asylum claims, particularly while in detention or during expedited 
processes. One commenter argued that noncitizens must be given an 
opportunity to amend their credible-fear interview record with 
representation because, in the context of detention, DHS is ``not 
currently capable of carrying out a proper fact-finding proceeding.'' 
Another commenter additionally claimed that adequate interpretation and 
legal services are ``nearly impossible'' to find when the applicant is 
detained. A commenter added that the proposed rule only allows for 
legal representation at no expense to the Government in the application 
process, compounding difficulties for asylum seekers who are ineligible 
to apply for employment authorization. Several commenters proposed that 
the Government fund legal representation programs for asylum seekers in 
the credible fear and Asylum Merits stages. Additionally, a commenter 
suggested the rule provide more information on access to counsel, legal 
orientation programs, and education for pro se applicants and 
applicants with cognitive, mental, or physical impairments.
    Response: The Departments acknowledge the comments related to 
access to counsel while in expedited removal; however, such comments 
are outside the scope of the present rulemaking, as they relate to the 
expedited removal process generally. This rulemaking is not altering 
the expedited removal process itself but rather introducing an 
alternative procedure for ``further consideration'' of the asylum 
claims of individuals who receive a positive credible fear 
determination. The rule preserves applicants' ability to retain and 
access counsel within the new Asylum Merits process before USCIS. 
Further, while the Departments appreciate comments suggesting the 
possibility of Government-funded attorneys in the credible fear process 
and for the asylum application, those comments are also outside the 
purview of this rulemaking. The Departments agree that it is important 
to, whenever feasible, provide applicants with information on access to 
counsel and provide education for pro se applicants. That is why such 
information, including an advisal of the right to be represented during 
the interview and of information related to the nature of the 
interview, is provided to applicants at various stages during the 
credible fear interview, including during the interview itself. 
Further, the Departments plan to provide information about the Asylum 
Merits process, as well as information related to free or low-cost 
legal service providers, along with service of the positive credible 
fear determination. The Departments take commenters' concerns about 
applicants with cognitive, mental, or physical impairments very 
seriously. DHS already has a practice of placing individuals in section 
240 removal proceedings when they are unable to testify on their own 
behalf due to possible cognitive or mental impairments, physical 
disability, or other factors that impede them from effectively 
testifying in the context of a credible fear interview. In section 240 
proceedings, IJs consider whether applicants demonstrate indicia of 
incompetency and, if so, which safeguards are appropriate. See, e.g., 
Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011). Accordingly, applicants 
with indicia of incompetency will continue to have their claims 
considered in ordinary section 240 proceedings.
    Comments: Commenters asserted that the NPRM's estimated 90-day case 
completion timeline would be ``unrealistic,'' ``troubling,'' and 
``could prejudice the rights of asylum seekers.'' One of these 
commenters argued that the expedited timeline would affect due process, 
in part because asylum seekers often have limited resources, physical 
and emotional needs, and barriers to preparing their cases, including 
difficulty finding counsel. Similarly, a commenter expressed concern 
that the proposed rule at 8 CFR 208.3(a)(2) would maintain the 45-day 
timeline for consideration and 180-day requirement for completion. 
Another commenter argued that the 45-day timeline for completing 
adjudications for new arrivals would ``require extraordinary 
resources,'' contribute to the USCIS

[[Page 18146]]

backlog, and exacerbate due process concerns.
    Response: The Departments acknowledge commenters' concerns 
regarding the timeline of case processing. As mentioned above with 
respect to the comments related to the processing timeline from 
positive credible fear determination to Asylum Merits interview, it is 
not within the Departments' authority to change the 45-day timeline for 
interviews and the 180-day timeline for adjudications set by Congress 
in INA 208(d)(5)(A), 8 U.S.C. 1158(d)(5)(A), absent exceptional 
circumstances. In this IFR, the Departments changed the rule language 
from that proposed in the NPRM to acknowledge that Asylum Merits 
decisions would generally be issued within 60 days of service of the 
positive credible fear determination absent exigent circumstances. See 
8 CFR 208.9(e)(2).
    Comments: A commenter argued that the proposal to remove the 
application requirement for noncitizens apprehended at the border gives 
such noncitizens procedural protections not afforded to asylum seekers 
who already reside in the United States. The commenter opposed the 
possibility that, under the proposed provisions, asylum seekers with 
strong ties to the United States would still be required to complete 
and submit Form I-589 in a timely fashion, while individuals seeking 
admission at the border would have rights beyond what existing statutes 
provide. The commenter added that the lack of an asylum application 
requirement would complicate the review of cases.
    Response: The Departments acknowledge the comments related to the 
form of application created by this rule, but the present rule is not 
eliminating the requirement that there be an application for asylum 
from the principal applicants in the new process. Instead of 
affirmatively filing a Form I-589, as is required for individuals in 
the United States who have not been placed into section 240 removal 
proceedings and seek to file for asylum affirmatively before USCIS, or 
defensively filing a Form I-589, as is required for individuals in the 
United States who have already been placed into section 240 removal 
proceedings (either following a positive credible fear determination or 
otherwise), applicants in the process established by this IFR will be 
considered to have filed their asylum application in the form of the 
documented testimony provided under oath to an asylum officer during 
the credible fear interview and included as part of their positive 
credible fear determination. 8 CFR 208.3(a). The Departments are 
streamlining the requirement for individuals who are already in the 
credible fear process such that the information collected in the 
credible fear determination itself becomes the basis of an application 
for asylum. To require such individuals to subsequently submit a paper 
I-589 asylum application in order to seek asylum would be unnecessarily 
repetitive. Treating the credible fear determination as the asylum 
application eliminates duplicative collection of information for 
individuals who have already been found to have a credible fear of 
persecution or torture. These individuals are still subject to the one-
year filing deadline and the other statutory bars to filing for asylum, 
the same requirements to appear for an interview, the same consequences 
for a failure to appear before USCIS, and the same requirements for EAD 
eligibility as other applicants. Moreover, the underlying procedures 
related to attorney participation remain the same as those for 
affirmative asylum applicants before USCIS. Most fundamentally, the 
eligibility standards governing adjudication of asylum applications are 
identical for applicants in the new process as they are for affirmative 
asylum applicants.
    In addition, the Departments will provide ample procedural 
safeguards to noncitizens throughout the new process established in 
this rule, including in the Asylum Merits interview itself, such as the 
following: (1) A verbatim transcript of the interview will be included 
in any referral package to the immigration judge, 8 CFR 208.9(f)(2); 
(2) an asylum officer will arrange for the assistance of an interpreter 
if the applicant is unable to proceed effectively in English, and if an 
interpreter is unavailable, USCIS will attribute any resulting delay to 
USCIS for the purpose of eligibility for employment authorization, 8 
CFR 208.9(g)(2); and (3) an asylum officer will, when not granting 
asylum, also consider an applicant's eligibility for statutory 
withholding of removal or CAT protection within the context of the 
Asylum Merits interview. Thus, if the asylum application is not 
approved, the asylum officer will determine whether the noncitizen is 
eligible for statutory withholding or CAT protection under 8 CFR 
208.16(b) or (c). See 8 CFR 208.16(a), 208.17(a). Even if the asylum 
officer determines that the applicant has established eligibility for 
statutory withholding of removal or CAT protection, the asylum officer 
shall proceed with referring the asylum application to the IJ for a 
hearing pursuant to 8 CFR 208.14(c)(1). See 8 CFR 208.16(a).
    The Departments acknowledge the commenter's concern about appellate 
review. As indicated above, this rulemaking does not eliminate the 
application requirement for principal asylum applicants. Rather, it 
changes the form of application for those individuals who receive a 
positive credible fear determination. As is the case for BIA review of 
asylum claims originating in the affirmative asylum process before 
USCIS, where an applicant has filed a Form I-589, the records created 
and evidence considered by asylum officers and IJs under the new 
process will go well beyond the application itself to include the 
testimony of the principal and derivative applicants, the results of 
background, identity, and security checks, and identity documents. They 
may also include affidavits and testimony from witnesses, country of 
origin information, civil documents, law enforcement records, medical 
records, court documents, and numerous other forms of evidence. By the 
time a case reaches the BIA, a robust record is available for the 
Board's consideration, only a small portion of which is the asylum 
application itself. Therefore, the Departments are confident that the 
records created before USCIS and IJs will enable the BIA to conduct a 
proper review under the appropriate legal standards of any cases on 
appeal arising out of the new processes created by this rulemaking.
e. Other Comments on Proposed Provisions on Applications for Asylum
    Comments: A commenter supported the proposed change to allow the 
Asylum Office to rely on biometric information collected during the 
expedited removal process rather than requiring covered noncitizens to 
report to an Application Support Center (``ASC'') for new 
fingerprinting. The commenter reasoned that elimination of duplicative 
biometric collection prevents asylum seekers from having to take time 
off from work or find childcare, and eliminates the risk for adverse 
consequences (e.g., stopping the asylum EAD clock or failure to appear 
at an ASC appointment). The commenter went on to state that the 
Government would also save time and money by not requiring the capture 
of biometric data that DHS has already collected previously.
    Response: The Departments acknowledge the commenter's support for 
using the biometrics already captured during the expedited removal 
process for the asylum application, for

[[Page 18147]]

the reasons outlined by the commenter. It is these very concerns 
expressed by the commenter that weighed in favor of allowing DHS to use 
the biometrics already captured in the expedited removal process for 
purposes of the asylum application as well. USCIS may still have to 
require applicants to attend an ASC appointment or otherwise obtain 
their biometrics in support of the asylum application following a 
positive credible fear determination but is working to obtain the 
ability to reuse the biometrics already captured by other DHS entities 
for the asylum application before USCIS.
    Comments: One commenter believed that, because the asylum applicant 
has the right to seek review of an asylum officer's decision not to 
grant asylum before an IJ, all denied claims will end up in our 
judicial system. Moreover, the commenter stated, because the rule seeks 
to reduce the immigration court backlog, adjudicators will be 
instructed to approve or grant asylum claims of individuals arriving at 
the border.
    Response: The Departments disagree that the rule's aim to reduce 
the immigration court backlog sends signals to adjudicators that they 
must grant non-meritorious cases. Each adjudication is based on 
specific, individualized facts, and, in the case of asylum, the grant 
of asylum status further requires not only a finding of substantive 
eligibility, but also a favorable exercise of discretion. If an asylum 
officer does not grant asylum, the noncitizen will be placed into 
streamlined section 240 removal proceedings. After being placed in 
streamlined removal proceedings and having the asylum claim reviewed de 
novo by the IJ, if the IJ denies asylum, the noncitizen may (as now in 
ordinary section 240 proceedings) appeal the IJ's decision to the BIA. 
And, as with BIA decisions in ordinary section 240 proceedings, the 
noncitizen may then seek judicial review before the appropriate U.S. 
Court of Appeals. See INA 242(a), 8 U.S.C. 1252(a). Judicial review 
serves as an important mechanism to ensure fairness and due process. 
Further, this rule leaves in place the statutory process by which the 
cases of noncitizens determined to have no credible fear of persecution 
or torture are resolved quickly, and creates a framework that also 
allows clearly grantable asylum cases to also be resolved quickly. 
Nevertheless, nothing in the rule suggests or requires that complex 
cases will be rushed or essential parts of the analysis or required 
vetting and security checks will be ignored, as there are no changes to 
substantive asylum eligibility. The Departments recognize that some 
cases may take longer to complete due to, for instance, particularly 
complex issues.
5. Adjudication of Applications for Asylum for Noncitizens With 
Credible Fear
a. DHS Interpretation of Statute in Creating a New Adjudication Process
    Comments: A commenter expressed concern with the NPRM's proposal to 
authorize asylum officers to issue removal orders, including in cases 
where an asylum-seeker fails to appear for a merits hearing before 
USCIS. The commenter contends that this new authority would put asylum 
officers in an enforcement-oriented or adversarial role, which could 
undermine the nonadversarial proceeding. The commenter asked that ICE 
or IJs instead be tasked with issuing removal orders. Furthermore, the 
commenter stated that an applicant who may have missed a hearing 
inadvertently should have an opportunity to remedy the situation before 
a removal order is issued. The commenter urged the Government to 
consider nonadversarial first-instance asylum hearings in a context 
that corresponds with international standards on detention and affords 
asylum-seekers sufficient time and opportunity to recover from trauma, 
gather information about their cases, and have access to legal advice, 
assistance, and representation.
    Response: The Departments have carefully considered the comments 
received in response to the NPRM regarding an asylum officer's 
authority to issue a removal order. As discussed elsewhere, the 
Departments have decided not to adopt that proposal. Instead, under the 
IFR, an asylum officer will issue an NTA when not granting an 
application for asylum and refer the case for streamlined section 240 
proceedings before an IJ. Given this choice of process in the IFR, the 
Departments find it is unnecessary to further respond to the comments 
regarding an asylum officer's authority to issue a removal order, as 
the Departments believe the concerns of those comments are now 
addressed.
b. Review of Asylum Claim by an Asylum Officer, Rather Than by an 
Immigration Judge, in Section 240 Removal Proceedings
    Comments: Several commenters expressed support for the proposal to 
have asylum officers adjudicate asylum applications in the first 
instance, noting that asylum officers are trained in assessing country 
conditions, conducting interviews, and handling sensitive information. 
One commenter stated that having USCIS adjudicate asylum applications 
would allow for a fast yet equitable process. One commenter noted that 
the proposed process would encourage asylum seekers to speak openly 
about their fears, and stated that asylum officers are better equipped 
than IJs to adjudicate protection-related claims. Another commenter 
asked DHS to clarify what types of trainings will be offered to asylum 
officers and suggested such training should emphasize cultural 
competence.
    Response: The Departments agree that a nonadversarial process is 
well-suited to adjudicating claims for asylum and related protection. 
The Departments concur with commenters who make specific reference to 
the trainings that all asylum officers undergo before they may work 
with vulnerable populations. The Departments note that asylum officers 
are trained in asylum and refugee law, interviewing techniques, country 
of origin information, decision-making, interviewing survivors of 
torture, fraud identification and evaluation techniques, and addressing 
national security concerns. See e.g., USCIS, Asylum Division Training 
Programs, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/asylum-division-training-programs. Cultural competence is an 
integral part of many of these trainings, and the Departments 
acknowledge the commenter's suggestion that trainings should emphasize 
this skill.
    Comments: Many commenters opposed the proposal to have asylum 
officers adjudicate asylum applications in the first instance, 
generally stating that only IJs should grant asylum. Other commenters 
argued that only IJs have the requisite training or that claims should 
not be adjudicated by ``bureaucrats.'' One commenter remarked that the 
proposal to have asylum officers adjudicate asylum claims would 
introduce the potential of ``political abuse,'' and some commenters 
argued that asylum claim adjudication must be conducted by IJs to 
prevent undue bias or corruption. A few form letter campaigns expressed 
concern that the proposal would make asylum officers ``the most 
powerful immigration officials in the country.'' One commenter 
expressed concern that the proposal would circumvent the careful 
analysis asylum applications demand and recommended increasing funding 
and hiring additional IJs to process the immigration backlog. Another 
commenter opposed allowing asylum officers to adjudicate asylum claims 
and suggested Federal judges should be

[[Page 18148]]

placed in courts near the border to handle asylum claims expediently. A 
commenter asked how DHS will ensure that only qualified asylum officers 
will adjudicate asylum claims and remarked that such qualifications are 
part of the legal definition of an IJ.
    Response: The Departments strongly disagree with statements 
asserting or suggesting that asylum officers, who are career Government 
employees selected based on merit as explained earlier in Section 
IV.B.2.a of this preamble, are biased or otherwise politically 
motivated. As noted above in Section III.C of this preamble, USCIS 
asylum officers already must undergo ``special training in 
international human rights law, nonadversarial interview techniques, 
and other relevant national and international refugee laws and 
principles.'' 8 CFR 208.1(b). USCIS asylum officers already adjudicate 
asylum applications as part of their duties, and this fact will not be 
affected by the rule. Also, as noted above in Section IV.B.2.a of this 
preamble, no individual may be granted asylum or withholding of removal 
until certain vetting and identity checks have been conducted. INA 
208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). Additionally, while the 
Departments believe that commenters' statements are grounded in 
misinformation, the Departments also note that Government officials are 
entitled to the presumption of official regularity in the manner in 
which they conduct their duties. United States v. Chem. Found., Inc., 
272 U.S. 1, 14-15 (1926). Commenters failed to provide any examples of 
what they incorrectly posit to be concerns with bureaucratic ``power[ 
]'' or bias on part of asylum officers. The Departments believe that 
such concerns stem from a fundamental misunderstanding of the United 
States' immigration system as well as the respective roles of IJs and 
asylum officers. Additionally, the comments lack any meaningful 
explanation or evidentiary basis; such baseless accusations against 
public officials are ``easy to allege and hard to disprove.'' Crawford-
El v. Britton, 523 U.S. 574, 585 (1998) (quotation marks omitted); see 
also Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 
(2004) (requiring the production of evidence rather than ``bare 
suspicion'' that ``responsible officials acted negligently or otherwise 
improperly in the performance of their duties'').
    Comments: Referencing the NPRM's preamble, several commenters 
stated that the prior Administration's border strategy has led to a 
significant increase in the number of backlogged asylum cases. These 
commenters stated that authorizing border cases to be handled not only 
by immigration courts but also by the USCIS Asylum Division will 
increase efficiency by eliminating redundancy. These commenters stated 
that permitting asylum officers to maintain jurisdiction throughout the 
life of a case capitalizes on the work and time already invested in 
each case during credible fear screenings, which will alleviate 
pressure on the immigration courts and eventually lead to a much more 
efficient immigration system. Other commenters likewise supported the 
proposed rule and stated that, while the number of IJs has doubled, the 
number of pending cases has tripled and outstripped the hiring of IJs. 
These commenters also stated that the immigration procedures 
contemplated in IIRIRA are inadequate for the number of applicants now 
seeking asylum in the United States. Two commenters stated that IJs can 
adjudicate asylum cases efficiently but that they must be provided more 
resources.
    A commenter indicated that there is no evidence that asylum officer 
interviews are more efficient than IJ adjudications. The commenter 
added that backlogs may in fact expand as a result of reallocating 
funding to cases under the proposed system, stating that the asylum 
offices do not have room for the proposed additional hires and that 
asylum officers may leave their jobs. The commenter stated that asylum 
officers typically conduct only two interviews a day while IJs conduct 
multiple hearings and that the latter are more efficient because IJs 
and counsel are more competent in immigration law. A commenter agreed 
that the proposed rule would extend the backlog by extending the 
appeals process for asylum seekers. Another commenter stated that the 
proposed rule could not seriously address backlogs because credible 
fear determinations and asylum applications only make up a small 
portion of immigration court dockets. A commenter also expressed doubt 
that the new process would alleviate backlogs because of startup costs 
for the new process.
    However, two commenters stated that, under the current system, 
outcomes of an asylum case can depend almost as much on luck as on the 
merits of an asylum application. The commenters cited a source 
indicating that approval rates by individual IJs can vary from 0.9 
percent of all cases to 96.7 percent. One of the commenters stated that 
such disparity causes unnecessary stress for individuals and also 
indicates the absence of clear, uniform standards used by IJs to 
adjudicate cases. The commenter stated that, conversely, the Asylum 
Division uses rigorous quality assurance processes and requires 
supervisory review of all cases and similar statutory definitions and 
policy guidance used by refugee officers in USCIS will also be applied 
to the work of asylum officers. The commenter concluded by stating 
that, under the new rule, the unpredictability and variance that 
characterize the current immigration court system will be replaced by 
greater consistency and clarity in the decision-making process across 
all asylum offices.
    Other commenters asserted that the rule would not create a more 
expeditious process and that limiting the rights of asylum seekers in 
expedited removal would better streamline immigration. Commenters also 
stated that it would be problematic for asylum seekers to have the 
right to an attorney but not to grant ``the American people'' the 
``right to be represented by an ICE attorney.''
    Response: The Departments agree that allowing USCIS to adjudicate 
these cases will alleviate pressure on the immigration courts and 
eventually lead to a much more efficient immigration system. Further, 
the Departments understand comments relating to reallocation of 
resources affecting the backlog of cases, the hiring, potential loss, 
and retention of asylum officers, and concerns for delay as the USCIS 
Asylum Division takes on this new caseload. It is on this basis that 
the Departments are phasing in implementation of this rule. The 
graduated steps involved will allow for the Departments to address 
concerns that arise and learn how implementation can be better 
operationalized. In comparing adjudications between USCIS and IJs, the 
specialized role of asylum officers coupled with ownership of a case 
from screening to adjudication allows for efficiency gains. Further, 
the USCIS Asylum Division has steps in place to ensure consistency in 
adjudications, and safeguards will continue as USCIS adjudicates 
applications pursuant to this rule. The Departments disagree that an 
adversarial process is required to adjudicate the merits of an asylum 
application. However, as noted above in Section III.D of this preamble, 
this IFR will provide for a streamlined section 240 removal proceeding 
in the event that an asylum officer does not grant asylum. The United 
States Government will be represented by ICE in those adversarial 
proceedings in accordance with 6 U.S.C. 252(c).

[[Page 18149]]

c. Requirements for USCIS Asylum Merits Adjudication
    Comments: A commenter expressed concern that the procedural 
safeguards for hearings before asylum officers will fall short of due 
process requirements. The commenter suggested that all procedural 
safeguards available in immigration court proceedings be included in 
hearings before an asylum officer to ensure fairness. Meanwhile, 
another commenter stated that the provisions of 8 CFR 208.9(d) alone 
would not violate the due process rights of noncitizens, citing the 
right to a de novo hearing in immigration courts under proposed Sec.  
1003.48(e)(1). The commenter cautioned, however, that the combination 
of 8 CFR 208.9(d) and 1003.48(e)(1) will deny noncitizens the chance to 
explain the circumstances of their persecution or well-founded fear of 
persecution in a complete and orderly way, and that the rule is 
inconsistent with 8 U.S.C. 1229(a)(4)(b) and due process guaranteed by 
the Fifth Amendment.
    Another commenter recommended asylum officers be required to 
introduce relevant country-conditions evidence--including evidence on 
gender-based violence, gang violence, and any recognized efforts to 
combat the aforementioned--when the applicant has not presented such 
evidence during the hearing before an asylum officer. Similarly, 
another commenter explained that having more complete knowledge of a 
country's conditions would allow asylum officers to properly elicit 
full testimony from asylum seekers. One commenter suggested additional 
procedural safeguards to promote ``a less traumatic procedure,'' such 
as trauma survivors being given an opportunity to request interviewers 
of a specific gender.
    Response: The Departments acknowledge the concerns of the 
commenters regarding the procedural safeguards in Asylum Merits 
interviews before USCIS asylum officers and disagree that such 
safeguards will fall short of due process requirements. As explained 
earlier in this IFR, the Departments are making several modifications 
to the process proposed in the NPRM in response to comments, including 
referring noncitizens who are not granted asylum by an asylum officer 
to an IJ for streamlined section 240 removal proceedings. DHS will 
provide ample procedural safeguards to noncitizens throughout the 
Asylum Merits process, including in the Asylum Merits interview itself, 
such as the following: (1) The applicant may have counsel or a 
representative present, may present witnesses, and may submit 
affidavits of witnesses and other evidence, 8 CFR 208.9(b); (2) the 
applicant or applicant's representative will have an opportunity to 
make a statement or comment on the evidence presented, and the 
representative will also have the opportunity to ask follow-up 
questions, 8 CFR 208.9(d)(1); (3) a verbatim transcript of the 
interview will be included in any referral package to the IJ, 8 CFR 
208.9(f)(2); (4) an asylum officer will arrange for the assistance of 
an interpreter if the applicant is unable to proceed effectively in 
English, and if an interpreter is unavailable, USCIS will attribute any 
resulting delay to USCIS for the purposes of eligibility for employment 
authorization, 8 CFR 208.9(g)(2); and (5) the failure of a noncitizen 
to appear for an interview may result in the referral of the noncitizen 
to ordinary section 240 removal proceedings before an IJ, unless USCIS, 
in its own discretion, excuses the failure to appear, see 8 CFR 
208.10(b)(1). Furthermore, as explained earlier, if an asylum officer 
does not grant asylum to an applicant, the asylum officer will 
determine whether the applicant is eligible for statutory withholding 
and CAT protection before referring the case to streamlined section 240 
removal proceedings before an IJ. The Departments believe that these 
procedures will give applicants a fair opportunity to present their 
claims, as well as have their claims heard and properly decided in an 
efficient manner.
    As for requiring asylum officers to introduce country conditions 
evidence, the Departments decline to impose such a requirement. Asylum 
officers receive extensive country conditions training, have ready 
access to country conditions experts, and regularly consider country 
conditions when making decisions as a matter of course. In addition, 
current affirmative asylum interview procedures allow for applicants to 
request interviewers of a specific gender. These same procedures will 
apply in the context of Asylum Merits interviews.
    Comments: Several commenters requested clarifications and 
modifications to procedures for merits hearings before asylum officers, 
including opportunities to present details and evidence pertaining to 
the case. A commenter explained that communication plays a crucial role 
in the interview process and asserted that the rule does not provide 
sufficient opportunity for legal advocates to call witnesses, present 
additional information, or prompt their clients to speak on their own 
behalf. Some commenters argued that the NPRM empowers asylum officers 
to present evidence, but does not allow applicants or their counsels to 
frame and present their cases, or to examine or challenge any evidence 
introduced. Likewise, one commenter remarked that the structure of the 
hearing before asylum officers reverses the ``normal order of 
adjudication,'' thus giving minimal opportunity to asylum seekers, who 
have the ``burden of proof,'' to make statements and be directly 
examined.
    Several commenters asserted that asylum officers provide limited to 
no opportunity for counsel to cross-examine applicants and present 
witness testimonies during interviews, which causes stress to 
applicants and limits the protections otherwise provided to them in 
section 240 removal proceedings. A few commenters asserted that 
limiting counsel's ability to make a statement or ask questions would 
jeopardize due process rights and reduce counsel's ability to properly 
advocate for the asylum seeker. Several commenters stated that more 
robust and meaningful participation by counsel during the hearing would 
help address the due process concerns arising from the revised 
provisions in 8 CFR 208.9, while reducing confusion or the need for 
appeals. Some commenters proposed that the rule include at least one 
continuance for the purpose of seeking counsel to advance equity within 
the adjudication process. Several commenters asserted that without 
access to counsel, asylum seekers would lack meaningful representation 
necessary for a successful hearing.
    Some commenters recommended that 8 CFR 208.9 be revised to allow 
representatives to make an opening statement, elicit testimony from the 
applicant during the hearing, and provide a closing statement. 
Similarly, from an efficiency and due process standpoint, a commenter 
recommended that the asylum seeker's counsel--rather than an asylum 
officer with limited time to review ``the often voluminous case 
file''--ask questions during the hearing. The commenter suggested that 
8 CFR 208.9(d) be further amended to provide that the representative 
will also have the opportunity to ask follow-up questions during the 
interview or hearing. One commenter urged USCIS to consider consulting 
with lawyers who appear in immigration courts to receive feedback on 
the effects of the rule.
    Response: The Departments acknowledge the concerns of the 
commenters regarding procedures for USCIS Asylum Merits adjudication, 
including the role of counsel in Asylum Merits interviews. As provided 
in 8 CFR 208.9(b), the purpose of the Asylum Merits interview will be 
to elicit all

[[Page 18150]]

relevant and useful information bearing on the applicant's eligibility 
for asylum. USCIS asylum officers have experience with (and receive 
extensive training on) eliciting testimony from applicants and 
witnesses, engaging with counsel, and providing applicants the 
opportunity to present, in their own words, information bearing on 
eligibility for asylum. Asylum officers also are trained to give 
applicants the opportunity to provide additional information that may 
not already be in the record so that the asylum officer has a complete 
understanding of the events that form the basis for the application. 
Noncitizens who are placed in the Asylum Merits process will have 
multiple opportunities to provide information relevant to their claims 
before USCIS asylum officers in nonadversarial settings, as well as the 
opportunity for an IJ to review or consider their claims. If an IJ 
ultimately denies protection to an applicant, BIA review will be 
available.
    Within the context of Asylum Merits interviews, noncitizens retain 
the ability to access and secure counsel. See 8 CFR 208.9(b). As in the 
affirmative asylum interview context, USCIS will make every reasonable 
effort to ensure applicants are scheduled for their hearing in a time 
and place that ensures their representatives of record can attend and 
meaningfully participate in their interview. Applicants may request 
rescheduling of Asylum Merits interviews by following the instructions 
set forth on the USCIS website and in appointment notices. At the 
Asylum Merits interview, the applicant may present witnesses and may 
submit affidavits and other evidence. See id. At the completion of the 
Asylum Merits interview, the applicant or the applicant's 
representative will have an opportunity to make a statement or comment 
on the evidence presented. The representative will also have the 
opportunity to ask follow-up questions. See 8 CFR 208.9(d)(1). The 
Departments recognize the importance of the role of counsel in advising 
and assisting noncitizens with presenting their claims and believe that 
this rule provides counsel the opportunity to do so within the context 
of Asylum Merits interviews. As a result, the Departments decline to 
make further changes in response to these comments. As for the 
suggestion to consult with legal practitioners appearing before the 
immigrant courts, the Departments note that the NPRM provided the 
opportunity for any and all members of the public, including legal 
practitioners, to offer feedback on the rule, and in this IFR the 
Departments are including another request for public comments.
    Comments: Citing the impact of legal representation on asylum case 
outcomes, a commenter indicated that the NPRM increases access to legal 
representation. The commenter noted that the NPRM allows 
representatives with DOJ EOIR accreditation, including individuals with 
partial accreditation, to represent clients seeking statutory 
withholding of removal and CAT protection before USCIS. The commenter 
noted that by allowing statutory withholding of removal and CAT 
protection claims to proceed before USCIS, applicants would have 
greater access to free or low-cost legal representation from DOJ-
accredited representatives. Another commenter recommended that the rule 
permit USCIS to appoint counsel in cases where counsel is needed, allow 
asylum seekers and their counsel to record objections and request the 
record reflect nonverbal activity, and create a procedure to report 
misconduct following hearings before asylum officers in the event that 
asylum officers mishandle such hearings.
    Response: The Departments acknowledge the feedback on the impact 
that the rule may have on access to legal representation. Given the 
Departments' decision to have asylum officers issue final decisions 
solely as to the asylum claims, rather than also issuing final 
decisions regarding statutory withholding and CAT protection claims as 
proposed in the NPRM or otherwise issuing removal orders, the 
commenter's note about individuals with partial accreditation is no 
longer relevant. While the Departments appreciate comments suggesting 
that USCIS appoint counsel to noncitizens in certain instances, those 
comments are outside the purview of this rulemaking. The Departments 
note that asylum seekers and counsel will have the opportunity to make 
a statement or comment on the evidence presented at Asylum Merits 
interviews, which may include raising objections and requesting that 
the record reflect nonverbal activity. As for reporting asylum officer 
misconduct, USCIS will follow existing agency-wide procedures on 
receiving and responding to complaints and misconduct, which are 
available on the USCIS website.
    Comments: Several commenters expressed support for the provision in 
the NPRM requiring asylum officers to record and transcribe hearings. A 
commenter noted that the provision allows noncitizens to receive a 
recording and transcript of their hearing before an asylum officer, 
which they believe would place the noncitizen on equal footing with the 
DHS attorney. Some commenters added that the recordings and 
transcriptions of hearings would allow for accurate documentation of 
the proceedings and align with transparency and accessibility 
priorities. One commenter requested that DHS also clarify how asylum 
seekers will be able to access their hearing transcripts because it 
would allow noncitizens to determine whether they require help from 
counsel. The commenter also asked that the Departments address the 
possibility of widening the scope of the provision so that asylum 
seekers may access transcripts from IJ proceedings. Another commenter 
expressed concern about the inability of records to capture non-verbal 
cues and reactions during the hearing. This commenter suggested that a 
human communications specialist be consulted to determine how to 
incorporate non-verbal cues into hearing records.
    One commenter noted that the requirement to record or transcribe 
the hearing may not be feasible and argued that this requirement would 
pose challenges for IJs conducting de novo reviews of hearings before 
asylum officers. Another commenter similarly urged USCIS to clarify how 
the review of hearing records would be conducted and the impact on the 
due process rights of asylum seekers. The commenter stated that full 
recordings of hearings would be hours long and claimed that generating 
transcripts would lengthen the time needed to issue decisions. 
Considering these issues, the commenter recommended that USCIS identify 
who would be reviewing the records and determine whether asylum 
officers would take notes in conjunction with the hearing recordings.
    Another commenter suggested that all interviews, regardless of 
their nature, be recorded. They specified that all questions and 
answers be documented in the language they were initially spoken in and 
later interpreted. The commenter also recommended that the Departments 
provide adjudication documents in the asylum seeker's language, and 
that, in the case of literacy limitations, an interpreter read the 
records to an asylum seeker. Finally, in cases where the asylum seeker 
is detained, the commenter recommended the agencies ensure privacy to 
review the records.
    Response: The Departments acknowledge the support for recording and 
transcribing Asylum Merits interviews. The Asylum Merits interview will 
be recorded so that a transcript of the interview can be

[[Page 18151]]

created. A verbatim transcript of the interview will be included in the 
referral package to the IJ. See 8 CFR 208.9(f)(2). A copy of that 
transcript will also be provided to the noncitizen. In addition, asylum 
officers will take notes during Asylum Merits interviews. As for 
nonverbal cues or reactions, asylum officers may make note of such 
matters as appropriate.\76\ The Departments do not anticipate that 
these procedures will lead to significant delays in the adjudication of 
the noncitizen's asylum claim before USCIS. The Departments recognize 
one commenter's concern that there may be logistical challenges 
associated with implementing recording or transcription of interviews 
before asylum officers. However, the Departments are taking a phased 
approach to implementation in part to address this concern. The rule 
does make changes to long-standing practices, and as implementation 
progresses, the Departments will work to ameliorate any challenges that 
arise as the process is put into practice. Also, allowing for robust 
independent review of asylum officers' decisions to not grant asylum is 
an important feature that ensures administrative fairness over and 
above due process minimums.
---------------------------------------------------------------------------

    \76\ Asylum officers conducting Asylum Merits interviews will 
continue to follow the guidance on note-taking they receive during 
their basic training. See USCIS, RAIO Combined Training Program: 
Note-Taking Training Module (Dec. 20, 2019), https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Note_Taking_LP_RAIO.pdf.
---------------------------------------------------------------------------

    In addition, USCIS will arrange for an interpreter when an 
applicant is unable to proceed with an Asylum Merits interview in 
English, and if an interpreter is unavailable, USCIS will attribute any 
resulting delay to USCIS for the purposes of eligibility for employment 
authorization. See 8 CFR 208.9(g)(2). At the Asylum Merits interview, 
the asylum officer will provide information about the hearing to the 
applicant, which will be interpreted for the applicant. While the 
Departments acknowledge the recommendation that questions and answers 
be documented in the language in which they were initially spoken and 
that adjudication documents be provided in the language spoken by the 
applicant, the Departments note that Asylum Merits interviews will be 
recorded and transcribed, and that notice of decisions will be provided 
to applicants in writing. The Departments believe that these various 
procedural safeguards sufficiently allow for applicants to access their 
Asylum Merits interview records and remain informed of the reasons for 
any decisions not to grant asylum. Thus, further documentation or 
explanation requirements are not warranted in this IFR.
    The comments recommending that DHS arrange a private setting for 
detained individuals to review their records fall outside of the scope 
of this rulemaking, and thus are not being addressed. The Departments 
believe that receipt of the transcript from the asylum officer's Asylum 
Merits interview will benefit the IJ and the noncitizen by providing a 
clear, precise, and accurate record of the basis for the adjudication. 
The Departments acknowledge the suggestion related to widening the 
scope of availability of transcripts from proceedings before IJs; 
however, this suggestion is beyond the scope of this IFR. Upon appeal 
of a decision by an IJ to the BIA, the hearing, where appropriate, is 
transcribed by the BIA and sent to both parties. See EOIR Policy 
Manual, Part II, Ch. 4.10(b), Part III, Ch. 4.2(f). Further, 
immigration hearings before the IJ are recorded. See 8 CFR 1240.9. If 
either party would like a recording of the proceedings before the IJ, 
an audio recording is available by making arrangements with the 
immigration court staff. See EOIR Policy Manual, Part II, Ch. 4.10(a).
    Comments: Several commenters expressed support for the provision in 
the NPRM at 8 CFR 208.9(g) that would require USCIS to provide an 
interpreter for the hearing before an asylum officer, reasoning that 
such a requirement would promote fairness and accuracy in adjudication. 
Conversely, one commenter expressed concern that the provision in the 
NPRM, paired with other provisions in the NPRM, would 
``disproportionately harm vulnerable, minority populations'' in the 
event that an Asylum Office cannot find an interpreter. Some commenters 
asserted that language barriers would result in mistakes in the record 
and complicate the appeal process. To address language access concerns, 
two commenters suggested this provision be extended to all asylum 
officer interviews, with some changes. The commenters suggested the 
agency provide specifications of the interpreter's qualifications and 
make Government-provided interpretation non-obligatory, asserting that 
these modifications would enhance asylum applicants' access to 
competent interpretation during the hearing.
    One commenter, in support of the use of interpreters during 
hearings before asylum officers, urged USCIS to implement additional 
safeguards to combat the systemic problems associated with language 
access. The commenter suggested that the safeguards include a mandate 
for interpretation throughout the full hearing in the asylum seeker's 
native language and incorporate specifications on the use of telephonic 
and video interpretations, and suggested that telephonic and video 
interpretation be used in cases where no qualified in-person 
interpreter is available. A commenter also suggested that the rule 
require everything said in any language during the interview process be 
part of the record to curtail the possibility of error and omission. 
Lastly, the commenter recommended a routine screening of interpreters 
to ensure consistency and accuracy in hearing records.
    Response: As explained earlier, USCIS will provide an interpreter 
for Asylum Merits interviews when an applicant is unable to proceed 
with the hearing in English, and if an interpreter is unavailable, 
USCIS will attribute any resulting delay to USCIS for the purposes of 
eligibility for employment authorization. See 8 CFR 208.9(g)(2). The 
Departments acknowledge the commenters' support for the provision and 
disagree with the commenters who assert that this requirement will 
disproportionately harm vulnerable, minority populations. USCIS has 
existing contracts with telephonic interpreters to provide 
interpretation for credible fear screening and affirmative asylum 
interviews, and thus has extensive experience providing contract 
interpreter services.
    Per contractual requirements, the USCIS contract interpreters are 
carefully vetted and tested. They must pass rigorous background checks 
as well as demonstrate fluency in reading and speaking English as well 
as the language of interpretation. The USCIS contractor must test and 
certify the proficiency of each interpreter as part of their quality 
control plan. The USCIS contractor also must provide interpreters 
capable of accurately interpreting the intended meaning of statements 
made by the asylum officer, applicant, representative, and witnesses 
during interviews or hearings. The USCIS contractor will provide 
interpreters who are fluent in reading and speaking English and one or 
more other languages. The one exception to the English fluency 
requirement involves the use of relay interpreters in limited 
circumstances at USCIS's discretion. A relay interpreter is used when 
an interpreter does not speak both English and the language the 
applicant speaks, such as a rare language or dialect.
    In addition, USCIS contractor-provided telephonic interpreters must 
be at least 18 years of age and pass a security and background 
investigation

[[Page 18152]]

by the USCIS Office of Security and Integrity. They cannot be the 
applicant's attorney or representative of record; a witness testifying 
on the applicant's behalf; a representative or employee of the 
applicant's country of nationality or, if stateless, the applicant's 
country of last habitual residence; a person who prepares an 
Application for Asylum and for Withholding of Removal or Refugee/Asylee 
Petition for a fee, or who works for such a preparer or attorney; or a 
person with a close relationship to the applicant, as deemed by the 
Asylum Office, such as a family member. All contract interpreters must 
be located within the United States and its territories (i.e., Puerto 
Rico, Guam, etc.). Additionally, under the International Religious 
Freedom Act of 1998, USCIS must ensure that ``persons with potential 
biases against individuals on the grounds of religion, race, 
nationality, membership in a particular social group, or political 
opinion . . . shall not in any manner be used to interpret 
conversations between aliens and inspection or asylum officers.'' 22 
U.S.C. 6473(a). In light of these requirements, the Departments are 
confident that USCIS will be able to ensure that communication among 
all parties is clear and accurate.
    The Departments acknowledge that current interpreter contracts 
cannot absorb the expected increase in the need for interpretation 
services. DHS anticipates that it will need to both increase funding on 
existing contracts and procure new contracts for interpretation 
services. As a result of this IFR, the need for interpretation services 
will increase as the number of Asylum Merits interviews USCIS performs 
rises, which is further discussed in Section VI of this preamble. DHS 
declines to make modifications in this rule related to the commenters' 
recommendation to extend the USCIS-provided interpreter provision to 
all asylum interviews before USCIS as changes to USCIS's affirmative 
asylum process are outside the scope of this rulemaking.\77\
---------------------------------------------------------------------------

    \77\ On September 17, 2021, DHS published a temporary final rule 
that extends and modifies the requirement for certain asylum 
applicants to use a USCIS-provided telephonic contract interpreter 
to keep the USCIS workforce and applicants safe during the COVID-19 
public health emergency. See Asylum Interview Interpreter 
Requirement Modification Due to COVID-19, 86 FR 51781 (Sept. 17, 
2021). The rule is effective until March 16, 2023. See 87 FR 14757 
(Mar. 16, 2022) (extending temporary final rule); see also 85 FR 
59655 (Sept. 23, 2020) (original temporary final rule); 86 FR 15072 
(Mar. 22, 2021) (first extension of temporary final rule).
---------------------------------------------------------------------------

d. Failure To Appear
    Comments: Various commenters opposed the proposed revisions that 
would allow an asylum officer to issue an order of removal when a 
noncitizen fails to appear for a scheduled hearing. Some of these 
commenters asserted that there are many reasons an asylum seeker might 
miss an interview that are not reasonably attributable to the 
applicant. Other commenters opposed this aspect of the proposal, 
arguing that the proposed rule offers fewer protections for asylum 
seekers than provided by the regulations governing in-absentia removal 
hearings before an IJ. Commenters argued that, unlike in section 240 
removal proceedings, the proposed regulation does not contemplate 
safeguards to ensure that the asylum officer has provided the required 
evidence of inadmissibility and correctly issued the removal order. 
Because DHS is required to establish ``by clear, unequivocal, and 
convincing evidence'' that the noncitizen is removable and received 
written notice of the time and place of proceedings before a judge will 
issue an in-absentia removal order, these commenters asserted that the 
proposed rule requires the asylum officer to act as both the 
adjudicator and the prosecutor when it comes to issuing the removal 
order. These commenters opposed this aspect of the proposal because the 
proposed regulations do not include a process through which the 
noncitizen would seek rescission and reopening after receiving an in-
absentia removal order from an asylum officer. Finally, other 
commenters opposed this part of the proposal because it does not 
include a provision that requires heightened notice of asylum hearings 
for children under 14, as exists in the regulations governing section 
240 removal proceedings. Some commenters expressed concern about this 
aspect of the proposal because it would permit an asylum officer to 
issue a removal order without previously issuing a notice of failure to 
appear, which one of these commenters stated would provide an important 
safeguard preventing the issuance of a removal order against an 
individual who did not attend their hearing through no fault of their 
own. Commenters asserted that the agencies did not provide any 
rationale for the decision not to provide notice to asylum seekers of 
their failure to appear and that this lack of notice of failure to 
appear offends due process.
    Also expressing due process concerns, a commenter suggested that 
the final rule must establish clear and fair notice procedures before 
any removal order is allowed. For example, the commenter expressed 
concern that the proposed rule does not have a requirement that the 
asylum officer issue a notice of further consideration hearing that 
would be comparable to the procedure under current 8 CFR 208.30(f), 
under which the officer issues an NTA for full consideration of the 
asylum and withholding of removal claims in section 240 removal 
proceedings.
    Asserting that due process requires notice and an opportunity to be 
heard, commenters argued that the proposed regulation would violate due 
process by not providing an effective remedy for lack of notice and 
providing only a discretionary opportunity to be heard. While 
acknowledging that the proposed rule would provide that USCIS may 
excuse the failure to appear if the applicant demonstrated 
``exceptional circumstances,'' the commenter argued that it is unclear 
whether this language would permit USCIS to rescind a removal order 
that had already been issued. Moreover, the commenter stated that this 
language keeps the decision to excuse the failure to appear entirely 
discretionary, unlike the statutory right to petition the immigration 
court to reopen in section 240 proceedings. Nor would this language, 
according to the commenter, provide applicants with a right to petition 
for reopening their cases due to lack of notice, a right they would 
have in section 240 removal proceedings.
    One commenter argued that granting asylum officers authority to 
issue in-absentia removal orders as proposed would violate asylum 
seekers' due process rights, citing uncertainties surrounding 
reasonable access to legal representation in the proposed rule and the 
extreme consequences of an inabsentia removal order. Citing due process 
concerns, another commenter objected to this aspect of the proposed 
rule because it would not provide a mechanism for requesting 
postponement, aside from the discretionary ``brief extension of time'' 
or for requesting a change of venue. A commenter expressed concern that 
the proposed rule provides authority to issue a removal order for 
failing to appear for biometrics appointments without incorporating the 
limited safeguards required for in-absentia orders of removal by IJs.
    Commenters recommended that the final rule include, either directly 
or by reference, the same or higher protections as an individual would 
receive in immigration court proceedings. A commenter suggested that, 
if the final rule adopts the NPRM's proposal, it should include 
provisions

[[Page 18153]]

that allow applicants to ask USCIS to rescind the removal order and 
reopen their cases where the applicant can show a due process violation 
or exceptional circumstances that excuse a failure to appear. Instead 
of allowing asylum officers to issue in-absentia removal orders, a 
commenter urged the Departments to require that cases be referred to 
immigration court when asylum seekers fail to appear for their 
interviews. Another commenter asserted that authorizing asylum officers 
to issue in-absentia removal orders would have a disproportionate and 
unfair impact on applicants with disabilities as well as asylum seekers 
who speak languages of lesser diffusion, who are less likely to receive 
notice of such appointments in a language they can understand.
    Response: The Departments have considered the comments related to 
the possibility of asylum officers issuing in-absentia removal orders 
as outlined in the NPRM and, after careful consideration, have opted 
not to include that proposal in this IFR. Under the present rule as 
revised, asylum officers will not be issuing removal orders following 
the Asylum Merits interview. Consistent with the Departments' 
determination that final orders of removal for individuals whose asylum 
claims are being adjudicated under the framework of this IFR will only 
be issued by IJs, asylum officers also will not issue removal orders if 
an applicant fails to comply with biometrics requirements or fails to 
appear for the hearing. Instead, failure to appear for hearings or to 
comply with biometrics requirements will result in applicants not 
having their asylum claims considered through the process established 
by this IFR. In those circumstances, noncitizens will be issued an NTA 
and placed in ordinary section 240 proceedings before EOIR. In those 
ordinary section 240 proceedings, noncitizens would not be considered 
to have asylum applications pending but would have the opportunity to 
file a Form I-589.
e. Process for USCIS To Deny an Application for Asylum or Other 
Protection and Issue a Removal Order
    Comments: A commenter provided a lengthy background analysis of the 
CAT, its implementation in the FARRA, and the authority of asylum 
officers to order the removal of asylum seekers. The commenter stated 
that the proposed rulemaking correctly does not amend the provision in 
8 CFR 1208.16(f) for statutory withholding and CAT protection. 
Furthermore, the commenter asserted that the only statutory authority 
asylum officers have to order that asylum seekers be removed is 
expedited removal under section 235(b)(1)(B)(iii)(I) of the INA. The 
commenter argued that asylum officers therefore lack authority to issue 
an order of removal after not granting a noncitizen's asylum claim and 
therefore also lack authority to adjudicate claims for statutory 
withholding of removal or CAT protection. Citing text from the NPRM's 
preamble, the commenter reasoned that the Departments incorrectly 
relied on a ``vestigial'' provision of INA regarding ``orders of 
deportation'' that were replaced by IIRIRA ``orders of removal.'' The 
commenter also argued that the Departments cannot rely on Mitondo v. 
Mukasey, 523 F.3d 784 (7th Cir. 2008), reasoning that that case cannot 
be applied in the context of expedited removals because it turned on 
vague statutory language related to the Visa Waiver Program whereas, 
the commenter argued, the statutory language on asylum officers' powers 
of removal in section 235(b)(1) is more explicit.
    Response: The Departments have carefully considered the comments 
received in response to the NPRM regarding an asylum officer's 
authority to issue a removal order. As discussed elsewhere, under this 
IFR, asylum officers will not issue removal orders. The Departments 
agree that an asylum officer should issue an NTA when not granting an 
application for asylum and refer the case for streamlined 240 
proceedings before an IJ. Given this process, the Departments find it 
is unnecessary to further respond to the comments regarding an asylum 
officer's authority to issue a removal order.
f. Other Comments on Proposed Adjudication of Applications for Asylum
    Comments: One commenter recommended several actions to address 
delays in the USCIS affirmative asylum adjudication process, including 
to reduce or eliminate the diversion of asylum office staff to conduct 
credible fear screenings and instead refer asylum seekers for full 
asylum interviews, create a new streamlined process to refer new 
requests for asylum originating at the U.S. border to USCIS asylum 
offices, ramp up hiring of asylum office staff, modernize the interview 
scheduling and filing systems, create an application route for 
cancellation of removal cases, and resolve more cases at the USCIS 
asylum offices in lieu of actions that typically occur in immigration 
courts, such as termination of immigration court proceedings for 
individuals who have filed an asylum application. The commenter also 
urged USCIS to address the occurrence of asylum granted by an 
immigration court but not initially granted by USCIS.
    Response: The Departments acknowledge the recommendations to 
address delays in the affirmative asylum adjudication process, but 
further consideration and discussion of the affirmative asylum 
adjudication process and different outcomes between affirmative asylum 
office adjudications and immigration court decisions fall outside of 
the scope of this rulemaking. The provisions of this rule respond to 
the problem of delay and backlogs for individuals encountered at the 
border who seek asylum or related protection by establishing a 
streamlined and simplified adjudication process. As discussed, the 
principal purpose of this IFR is to simultaneously increase the 
promptness, efficiency, and procedural fairness of the expedited 
removal process for individuals who have been found to have a credible 
fear of persecution or torture.
    Comments: A commenter requested that the Departments further 
clarify adjudicatory timelines and processes so that stakeholders can 
fully evaluate the fairness, feasibility, and potential efficiencies of 
the rule. For example, the commenter stated that the proposed rule does 
not establish a timeline for the submission of evidence and does not 
provide for continuances but, rather, only extensions of undefined 
length and purpose. This commenter also requested that the Departments 
address the anticipated timeline and process for the adjudication of 
asylum claims for individuals who are released from detention following 
a positive credible fear determination but prior to the adjudication of 
their claim by an asylum officer, stating the proposed rule seemed to 
focus on asylum claim adjudication for detained noncitizens.
    Response: The Departments acknowledge the request to clarify 
adjudicatory timelines and processes. DHS is clarifying at 8 CFR 
208.9(a)(1) that there will be a minimum of 21 days between the service 
of the positive credible fear determination on the applicant and the 
date of the scheduled Asylum Merits interview, unless the applicant 
requests in writing that an interview be scheduled sooner.
    DOJ is also clarifying the timeline for adjudications before the 
immigration court should the proceedings be referred to EOIR pursuant 
to new 8 CFR 1240.17(a) and (b). Notably, applicants will not appear 
for a master calendar hearing until at least 30 days after DHS serves 
the NTA, as set forth at new 8 CFR 1240.17(b). Applicants will then be

[[Page 18154]]

provided the opportunity to elect to testify and submit additional 
documentary evidence, as well as to identify errors in the record of 
proceedings before the asylum officer, including the asylum officer's 
decision. 8 CFR 1240.17(e). At this stage, parties may elect to proceed 
on the documentary record or may request a final merits hearing. 8 CFR 
1240.17(f)(1). Based on an independent evaluation of the record, the IJ 
will then determine whether to decide the application on the 
documentary record or to hold a merits hearing. 8 CFR 1240.17(f)(2). If 
deemed necessary, the merits hearing generally will be scheduled 60 to 
70 days after the initial master calendar hearing. Proceedings may be 
continued and filing deadlines may be extended, subject to certain 
requirements previously discussed in Section III.D of this preamble. In 
general, the Departments expect that the initial merits proceedings 
will be completed within 135 days from the first master calendar 
hearing before an IJ, and often substantially sooner. Having provided 
additional clarity regarding adjudicating timelines in the IFR, the 
Departments invite further comments.
    Comments: A commenter recommended that the Departments allow asylum 
seekers with a positive credible fear determination to proceed as 
affirmative asylum applicants before USCIS, with referral to an 
immigration court occurring after the asylum interview, as necessary. 
The commenter stated that this approach would reduce the burden on 
immigration courts and allow for efficient processing of meritorious 
claims in a nonadversarial system.
    Response: The Departments acknowledge the recommendation. The IFR 
provides for a nonadversarial asylum officer interview and adjudication 
with referral to an immigration court if the applicant is not granted 
asylum, through a streamlined section 240 proceeding with special 
procedures that will appropriately introduce efficiencies made possible 
by the asylum officer's record and determinations.
6. Application Review Proceedings Before an Immigration Judge
    Comments: A majority of commenters who discussed the proposed IJ 
review proceedings expressed due process, procedural, constitutional, 
and other concerns about the creation of new IJ review proceedings and 
argued that applicants not granted asylum by the asylum officer should 
instead be referred to section 240 removal proceedings.
    Commenters stated that many asylum seekers with strong and 
straightforward claims would benefit from the chance to be granted 
asylum after an interview with an asylum officer. Oner commenter stated 
that the initial interview with an asylum officer is ``theoretically a 
good idea'' but would ultimately depend on implementation. However, 
commenters were concerned that the NPRM's IJ review proceedings would 
disproportionately affect applicants with more complex cases. Thus, 
commenters supported referral to an IJ for a full evidentiary hearing 
if an applicant's case was initially not granted by an asylum officer. 
Commenters expressed significant concern about the possibility of a 
noncitizen being returned to a country where he or she fears 
persecution or torture without receiving a full adversarial hearing.
    Several commenters remarked that they would be more supportive of 
the NPRM's provisions regarding initial asylum officer adjudication if 
the NPRM retained all asylum seekers' rights to full merits hearings in 
immigration court.
    On the other hand, some commenters were supportive of the NPRM's 
provisions that would have allowed a noncitizen whose application was 
not granted to submit additional evidence for IJ review.
    Response: Upon careful consideration, the Departments have revised 
the process set forth in the NPRM so that individuals will be placed in 
streamlined section 240 proceedings rather than the NPRM's proposal for 
non-section 240 proceedings, as described in new 8 CFR 1240.17, if an 
asylum officer does not grant asylum after an initial adjudication. As 
a general matter, the Departments agree with commenters that section 
240 proceedings provide a better alternative than the proceedings 
proposed in the NPRM. IJs, DHS attorneys, and immigration counsel are 
familiar and experienced with the rules and procedures that apply to 
section 240 proceedings because those proceedings are the most common 
type conducted by IJs. The statute and regulations provide detailed 
standards and consistent rules for the conduct of section 240 hearings 
and noncitizens' rights during such proceedings, see 8 U.S.C. 1229a et 
seq., 8 CFR 1240.1 through 1240.19. Currently, asylum and protection 
applications filed by noncitizens whose cases originate from the 
credible fear process are adjudicated in section 240 proceedings. In 
contrast, the NPRM would have created a new process and would have 
imposed new evidentiary standards and limitations. See 86 FR 46946. The 
Departments believe that the NPRM process could have resulted in 
efficiencies while still ensuring a fair process, see, e.g., id. at 
46906; however, as commenters claim, the NPRM process may also have 
resulted in increased immigration court and appellate litigation 
surrounding the interpretation and application of the new standards and 
evidentiary limitations. To avoid those complications, the Departments 
have decided not to adopt the NPRM's approach at this time and have 
instead decided to place noncitizens in streamlined section 240 
proceedings if an asylum officer does not approve the noncitizen's 
application. This process will not employ the novel evidentiary 
restrictions proposed in the NPRM, but will instead apply largely the 
same long-standing rules and standards governing the submission of 
evidence that apply in ordinary section 240 proceedings. However, in 
keeping with the NPRM's purpose to increase efficiency and procedural 
fairness of the expedited removal process for individuals who have been 
found to have a credible fear of persecution or torture, 86 FR 46909, 
and in light of the efficiencies gained by initial adjudication before 
and creation of a record by the asylum officer, these streamlined 
section 240 proceedings will be subject to particular procedural 
requirements that ensure they are completed in an expeditious manner 
while still preserving fairness to noncitizens.\78\
---------------------------------------------------------------------------

    \78\ Streamlined section 240 proceedings are conducted in 
accordance with section 240 of the INA, 8 U.S.C. 1229a, but with 
particular procedural requirements laid out in new 8 CFR 1240.17, as 
described above in Section III of this preamble. EOIR has made other 
such procedural changes, including the recent procedural 
requirements imposed on cases subject to case flow processing under 
Policy Memorandum (``PM'') 21-18, Revised Case Flow Processing 
before the Immigration Courts (Apr. 2, 2021). Generally, that PM 
eliminates the master calendar hearing for represented non-detained 
cases, but those cases are still conducted pursuant to section 240 
of the INA, 8 U.S.C. 1229a.
---------------------------------------------------------------------------

    The Departments agree with the commenters' assertions that 
noncitizens and the overall immigration adjudication system will 
benefit from this rulemaking in part by authorizing asylum officers to 
grant asylum to noncitizens determined to have a credible fear of 
persecution or torture. 8 CFR 208.2(a)(1)(ii). Asylum officers receive 
extensive training and possess expertise, see supra Section III.C of 
this preamble; INA 235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E); 8 CFR 
208.1(b), and the Departments are confident in asylum officers' ability 
to carry out their duties in accordance with all applicable

[[Page 18155]]

statutes and regulations and in an efficient, fair manner.
    The Departments have amended their respective regulations in this 
IFR to provide certain procedural protections that address commenters' 
concerns about the process that applies if an asylum officer does not 
grant asylum after an initial adjudication. For example, all 
noncitizens not granted asylum by asylum officers after an initial 
adjudication will be issued an NTA and referred to streamlined section 
240 proceedings, as described in new 8 CFR 1240.17. Because, under this 
IFR, such noncitizens will be referred for streamlined section 240 
proceedings, 8 U.S.C. 1229a, the applicable evidentiary standard is 
consistent with the longstanding evidentiary standard for section 240 
proceedings--evidence is admissible unless the IJ determines it is 
untimely, not relevant or probative, or that its use is fundamentally 
unfair. 8 CFR 1240.17(g); 8 CFR 1240.7(a); Nyama, 357 F.3d at 816 
(``The traditional rules of evidence do not apply to immigration 
proceedings. . . . `The sole test for admission of evidence is whether 
the evidence is probative and its admission is fundamentally fair.' '' 
(quoting Espinoza, 45 F.3d at 310)); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503, 505 (1980) (holding that evidence must be ``relevant and 
probative and its use must not be fundamentally unfair'').
    As part of the streamlined section 240 proceedings adopted by DOJ 
in this IFR at new 8 CFR 1240.17, noncitizens may elect to testify or 
present additional evidence that meets this evidentiary standard. 8 CFR 
1240.17(g). If the noncitizen timely requests to testify, the IJ must 
schedule a hearing unless the IJ determines that the application can be 
granted without live testimony and DHS has not requested to present 
testimony or cross-examine the noncitizen, as described at new 8 CFR 
1240.17(f)(4)(ii). Given these protections, among others, the 
Departments are confident that the procedures are sufficient to ensure 
that noncitizens will not be removed to a country where they fear 
persecution or torture without the opportunity for a hearing before an 
IJ.
    The Departments acknowledge those commenters who expressed support 
for the NPRM's evidentiary procedures, but the new process established 
by this IFR at new 8 CFR 1240.17(g), and as described above in Section 
III of this preamble, maintains the noncitizen's ability to submit 
evidence to asylum officers and IJs, albeit in accordance with a 
broadened evidentiary standard consistent with section 240 proceedings. 
The new process further includes rules governing continuances, 
procedures for prehearing conferences, and the requirement of 
submissions by the parties. The Departments believe that the revisions, 
including (1) transmission of the asylum office record, (2) 
requirements that the IJ not hold a hearing unless requested by a party 
or if necessary, and (3) the deadlines imposed, will prevent time-
consuming evidentiary hearings and increase the overall efficiencies 
and effectiveness in all cases.
a. Creation of New Limited Proceedings in Lieu of Section 240 Removal 
Proceedings and Limitation on Relief to Asylum, Statutory Withholding 
of Removal, and Convention Against Torture Review Only
    Comments: Several commenters expressed opposition to the NPRM's 
procedures proposing that applicants who are not granted asylum or are 
found ineligible for statutory withholding of removal or CAT protection 
by an asylum officer must affirmatively request further review by an 
IJ. Overall, these commenters suggested that, if the Departments move 
forward with the NPRM's new hearing process, these applicants should be 
automatically referred to the IJ for a hearing, ideally in section 240 
proceedings.
    Multiple commenters compared this process to the procedures for 
credible fear review in which applicants who neither affirmatively 
request IJ review nor waive review are referred to the IJ. See 8 CFR 
208.30(g)(1).\79\ Commenters stated that it was unclear why the 
Departments would not apply the same presumption to the NPRM's process 
for people who are not granted asylum by asylum officers since, 
commenters explained, the new hearing process is essentially an 
extension of the credible fear interview process at issue in 8 CFR 
208.30(g)(1). In other words, commenters urged the Departments to 
automatically refer asylum officers' decisions to not grant asylum to 
the IJ for section 240 proceedings unless the asylum seeker 
affirmatively states or files a notice waiving IJ review (i.e., ``opts 
out'').
---------------------------------------------------------------------------

    \79\ This citation refers to 8 CFR 208.30(g)(1) prior to 
publication of the Global Asylum rule, which amended 8 CFR 
208.30(g), see 85 FR 80392, but which has since been enjoined, see 
supra note 4 (discussing recent regulations and their current 
status).
---------------------------------------------------------------------------

    Commenters expressed concern that requiring an applicant to 
affirmatively seek further review may result in some applicants not 
receiving further IJ review due to the applicant's confusion or the 
complexity of the process, and not due to a lack of desire for further 
review. For example, commenters noted that many asylum seekers who 
receive a negative credible fear finding may not know that they can 
seek a ``de novo review'' or may not understand the consequences of 
failing to seek review. In addition, there may be problems for 
applicants with the translation of documents informing them about the 
appeal process into a language they can read, or with applicants 
understanding the gravity of the process. Finally, commenters explained 
that automatic referral to an IJ is preferable to requiring an 
affirmative election because the applicant may receive an asylum 
officer's decision not to grant asylum through the mail, which triggers 
a short time to respond and other mail difficulties.
    Commenters expressed concern that the 30-day period to request 
review by the IJ is too short and recommended extending the time period 
in which a noncitizen must respond after receiving a denial in the mail 
from 30 to 60 days.
    Some commenters compared the IJ referral procedures in the NPRM to 
those for applicants who have affirmatively applied before USCIS. See 8 
CFR 208.14(c)(1) (instructing the asylum officer to refer the 
application of an applicant who is inadmissible or deportable for 
adjudication in section 240 proceedings). Commenters were concerned 
that the difference in the procedures would create confusion in 
immigrant communities and lead many asylum seekers in the NPRM process 
to mistakenly believe that their cases would be automatically referred 
to the immigration court. Similarly, commenters were concerned that 
having two different paths may also create confusion potentially for 
the asylum office itself.
    Some commenters said that substituting an ``appeal'' for a 
``referral'' for IJ review is confusing and potentially deceptive, 
especially for applicants who appear pro se at an asylum officer 
interview. Commenters said that such applicants will likely have 
difficulty understanding paperwork that explains the contours of these 
IJ review hearings, as well as the obligation to file a notice of 
appeal, thereby potentially foreclosing further administrative and 
judicial review. Commenters further expressed concern that additional 
categories of applicants would be particularly affected by the 
requirement to affirmatively request IJ review, including non-English 
speakers, individuals with mental health disabilities, trauma victims, 
and individuals in detention.
    Commenters noted that language barriers, effects of trauma, and the 
detrimental effects of detention all

[[Page 18156]]

negatively impact an asylum seeker's ability to affirmatively request 
review. In addition, commenters noted that the noncitizens who would be 
placed in proceedings before EOIR will have already had an asylum 
officer determine that the claim is credible and, therefore, not 
frivolous. Thus, commenters explained, such asylum seekers would be 
unlikely to request review, resulting in the waiver of meritorious 
claims.
    Response: This IFR does not implement the NPRM's proposal for IJ 
review proceedings, and instead adopts streamlined section 240 
proceedings, as described above in Section III of this preamble. 
Specifically, as described in new 8 CFR 1240.17, DHS will file an NTA 
and place the noncitizen in these streamlined section 240 proceedings 
in all cases where the noncitizen was found to have a credible fear of 
persecution or torture, but the asylum officer subsequently did not 
grant the asylum application.
    The Departments believe that providing streamlined section 240 
proceedings addresses nearly all of the commenters' concerns and 
requests on this topic. Applicants will not be required to 
affirmatively request review by an IJ, and applicants will not be 
referred to the limited IJ proceedings proposed in the NPRM. Instead, 
applicants will be referred to streamlined section 240 proceedings that 
incorporate various procedural measures to enhance efficiency, 
consistent with the streamlined nature of these proceedings, while 
still ensuring fairness to noncitizens. Proceedings under this IFR are 
conducted under section 240 of the Act, 8 U.S.C. 1229a, and the 
streamlined proceedings will advance more expeditiously than ordinary 
section 240 proceedings generally proceed because the IJ will have the 
benefit of the full asylum officer record and the IJ and the parties 
will be subject to timelines that ensure the proceedings are 
adjudicated promptly. The streamlined 240 proceedings will also ensure 
that the intent of the NPRM to streamline IJ review is preserved.
    Nevertheless, the Departments believe that these additional 
procedural measures will not create confusion for noncitizens, as 
section 240 proceedings are the most common type of immigration 
proceeding, and these new, straightforward procedural requirements will 
be directly communicated to noncitizens. Moreover, the new procedural 
timelines in the IFR are responsive to commenters' concerns that 
noncitizens need longer than 30 days to identify errors in the asylum 
officer's decision. Notably, under the IFR, as set forth at new 8 CFR 
1240.17(b), the master calendar hearing will be held 30 days after the 
NTA is served, or, if a hearing cannot be held on that date, on the 
next available date no later than 35 days after the date of service. At 
the conclusion of the initial master calendar hearing, the IJ will 
schedule a status conference 30 days after the master calendar hearing 
or, if a status conference cannot be held on that date, on the next 
available date no later than 35 days after the master calendar hearing, 
as described at new 8 CFR 1240.17(f)(1). At status conferences provided 
for at new 8 CFR 1240.17(f)(2), noncitizens will indicate orally or in 
writing whether they intend to contest removal or seek any protections 
for which an asylum officer did not determine a noncitizen eligible, 
and if seeking protections, noncitizens will indicate whether they 
intend to testify before the immigration court, identify any witnesses 
they intend to call, and provide any additional documentation. 8 CFR 
1240.17(f)(2)(i). Where a noncitizen is represented by counsel, the 
noncitizen shall further describe any alleged errors or omissions in 
the asylum officer's decision or the record of proceedings, articulate 
any additional bases for asylum and related protections, and state any 
additional requested forms of relief. Id. The IFR also provides 
specifically for continuances and filing extensions in streamlined 
section 240 proceedings, which allows appropriate flexibility with 
regard to the established timelines. See 8 CFR 1240.17(h). If a 
noncitizen needs additional time beyond these timelines, as commenters 
suggested, new 8 CFR 1240.17(h)(2) provides for respondent-requested 
continuances and filing extensions. Thus, these timelines are clear, 
streamlined, and reasonable, allowing noncitizens the opportunity to 
reasonably present their cases while maintaining the overall 
efficiencies of the NPRM.
    In addition to established evidentiary standards, section 240 
proceedings--including the streamlined section 240 proceedings 
addressed in this IFR--provide a number of procedural protections 
established by statute and regulation, such as the right to 
representation, ``a reasonable opportunity to examine the evidence 
against the [noncitizen], to present evidence on the [noncitizen's] own 
behalf, and to cross-examine witnesses,'' and the creation of a 
complete record of the proceedings. INA 240(b)(4), 8 U.S.C. 
1229a(b)(4). Additionally, the Act and the regulations establish that 
the IJ should play a robust role in proceedings. See INA 240(b)(1), 8 
U.S.C. 1229a(b)(1) (requiring IJs to ``administer oaths, receive 
evidence, and interrogate, examine, and cross-examine the alien and any 
witnesses''); 8 CFR 1003.10(b) (same and requiring IJs to take other 
actions that are ``appropriate and necessary for the disposition of'' 
each case); 8 CFR 1240.10(a) (requiring IJs to, inter alia, advise 
noncitizens of certain rights in section 240 proceedings and to explain 
factual allegations and legal charges in the NTA in non-technical 
language); 8 CFR 1240.11(a)(2) (requiring IJs to inform noncitizens of 
``apparent eligibility to apply for any of the benefits enumerated in 
this chapter''); 8 CFR 1240.1(a)(1)(iv) (authorizing IJs to ``take any 
other action consistent with applicable law and regulations as may be 
appropriate'' in a section 240 proceeding). Additionally, section 240 
proceedings provide for special consideration for noncitizens who may 
present with competency issues. See INA 240(b)(3), 8 U.S.C. 
1229a(b)(3); Matter of M-A-M-, 25 I&N Dec. at 479-84 (stating that 
where a noncitizen shows indicia of incompetency, the IJ must inquire 
further and establish safeguards where appropriate). In addition, the 
IFR carves out a specific exception to the general timeline and 
procedures in the streamlined 240 proceedings for a noncitizen who has 
exhibited indicia of incompetency at new 8 CFR 1240.17(k)(6).
    The Departments note that the IFR does not permit noncitizens to 
``opt-out'' of or decline further proceedings before an IJ because 
section 240 of the Act, 8 U.S.C. 1229a, requires an IJ, as opposed to 
the asylum officer, to issue the order of removal in cases where asylum 
is denied. The IFR does, however, allow a noncitizen to indicate that 
the noncitizen does not wish to contest removal or seek any protections 
for which the asylum officer did not find the noncitizen eligible, as 
set forth in new 8 CFR 1240.17(f)(2)(i)(B). In such a case, if the 
asylum officer determined the noncitizen eligible for withholding of 
removal or protection under the CAT, the IJ will give effect to that 
protection as determined by the asylum officer unless DHS makes a prima 
facie showing through new evidence or testimony that specifically 
pertains to the respondent and that was not included in the record of 
proceeding for the USCIS Asylum Merits interview that the respondent is 
not eligible for such protection. In addition, if a noncitizen fails to 
appear for the IJ proceedings, the IJ will generally be required to 
issue an in-absentia removal order pursuant to

[[Page 18157]]

existing regulations, but will similarly give effect to the asylum 
officer's determination, if any, that the noncitizen is eligible for 
withholding of removal or protection under the CAT, unless DHS 
demonstrates that the respondent is not eligible for such protection, 
as provided in new 8 CFR 1240.17(d).
    Comments: Commenters expressed concerns that the NPRM's proposed IJ 
review proceedings lacked procedural protections and due process 
safeguards. Commenters stated that placing applicants whose cases are 
not granted by the asylum officer in these limited, asylum-only-type 
proceedings limits critical and well-established due process 
protections for applicants. In other words, commenters generally 
supported placing applicants in section 240 proceedings, to include the 
broader evidentiary standard applied in 240 proceedings, rather than a 
new limited proceeding tethered to the asylum interview record, and 
imposing a narrow evidentiary standard.
    Commenters stated that the NPRM's proposed IJ review proceedings 
would erase the procedural guarantees and protections of full removal 
hearings and inappropriately limit immigration court consideration of 
asylum officer decisions. For instance, under the NPRM, an applicant 
would be unable to submit applications for other forms of relief 
without submitting additional motions, and would be unable to submit 
additional evidence unless an IJ deems it ``necessary'' and ``not 
duplicative.'' Commenters stated that IJs would be expected to rule in 
these ``reviews'' without holding evidentiary hearings. Similarly, 
commenters expressed concern that the proceedings would effectively be 
limited to review of only the asylum officer's notes, which would 
deprive the applicant of the right to present testimonial and 
documentary evidence, cross-examine adverse witnesses, and review and 
rebut all evidence considered by the adjudicator. Commenters expressed 
concern that the procedures in the NPRM's proposed IJ review, as 
compared to section 240 proceedings, could deprive applicants of a true 
opportunity to be heard. Commenters stated that the evidentiary 
provisions of the IJ review process could not cure the absence of these 
procedural protections. Commenters said the evidentiary procedures 
proposed by the NPRM during IJ review are vague and inadequate, and the 
NPRM's articulated rationales for a truncated hearing rather than full 
section 240 proceedings are arbitrary and capricious.
    Commenters expressed concern about the nature of the record before 
the IJ in the review proceedings proposed by the NPRM--more 
specifically, that the NPRM gives a disproportionate amount of 
deference to asylum officer decisions while simultaneously limiting IJ 
adjudication to a mere review of the asylum officer-created record, 
rather than providing for a full de novo merits hearing. Commenters 
believed the NPRM would allow credible fear interview notes to be the 
sole basis of the asylum application, and that proposed 8 CFR 208.14(c) 
would allow asylum applications to be the sole piece of evidence 
reviewed by the IJ. Commenters also believed that relying on the asylum 
officer to adequately develop the record falls far short of due process 
standards. Commenters expressed concern that the asylum officer's notes 
may not explain why certain types of evidence were not allowed to be 
presented. Given these concerns, commenters said that this would create 
a chain of reliance on limited and often incomplete credible fear 
interview notes, would limit the ability of counsel to effectively 
supplement the record where necessary, and would prejudice clients who 
were not able to fully present their claims during the credible fear 
interview because of incapacity, trauma, or an improper setting for the 
interview.
    Commenters stated that the NPRM does not explicitly guarantee the 
applicant a right to receive a decision from the IJ that lays out the 
reasons for their decision. Commenters reasoned that these decisions 
are critical for BIA and judicial review and thus, at a minimum, the 
NPRM should include the same standard of requiring an IJ to explain the 
reasoning underlying the court's decision as in section 240 
proceedings.
    Commenters expressed concern that the proposed IJ review procedure 
would provide insufficient review in light of the nature of the asylum 
officers' adjudications and decisions. Commenters stated that, in the 
context of asylum officers' adjudications of affirmative asylum 
applications or those filed by unaccompanied children, applicants 
receive a one-page notice explaining the decision with limited legal 
explanation. Assuming the decisions by asylum officers in the new 
procedures under the NPRM would be similar, commenters expressed 
concern that the NPRM does not provide the same safeguard of section 
240 proceedings that is provided to these other applicants. Commenters 
stated that asylum officers do not always adequately review the entire 
record and make referrals to the immigration court for complex cases. 
Commenters stated that the NPRM's proposed IJ review proceedings would 
not ensure that any errors or omissions by the asylum officer are 
uncovered, particularly where the IJ rejected additional evidence or 
testimony that might support the protection claim.
    Commenters stated that full section 240 proceedings are necessary 
because many applicants who currently are referred to removal hearings 
by asylum officers are granted asylum by an IJ. Commenters stated that 
reasons for the high number of cases granted after referral to EOIR, in 
the current section 240 referral process, include insufficiency or 
inaccuracy of credible fear interview notes as a sole measure of 
credibility, the structure of the asylum officer's interview, access to 
counsel, and access to evidentiary material and witness testimony. In 
contrast, commenters said the standard for considering admissible 
evidence in section 240 proceedings is relevance and fundamental 
fairness, and that immigration proceedings favor broad evidentiary 
admissibility. Commenters said the reason for the large disparity in 
outcomes was the right to a full de novo court hearing, where attorneys 
were free to offer documents, briefs, and testimony.
    Commenters also took issue with the NPRM's statement that a 
noncitizen would have a ``full opportunity to challenge'' an asylum 
officer's decision to not grant asylum through an IJ's review of the 
asylum interview record. Commenters stated that, statistically, a large 
number of asylum applicants are unsuccessful in making a strong case 
for themselves at their hearings before asylum officers, citing impacts 
of trauma on presenting claims and difficulties with providing 
documentary evidence on short notice. Thus, commenters asserted, it is 
not realistic or fair to expect that the record of the hearing before 
an asylum officer, on which the IJ would rely during their review, 
would be sufficient to ensure that applicants have the opportunity to 
adequately make their case.
    Commenters stated that the availability of section 240 proceedings 
for some applicants and only limited proceedings under the NPRM for 
other asylum applicants is not rationally connected to (1) whether a 
noncitizen has been or may be persecuted or tortured in the country the 
noncitizen left behind, and (2) the noncitizen's ability to articulate 
the claim or timely obtain evidence. Therefore, commenters urged that 
any final rule preserve the right to full adversarial proceedings 
before an IJ for those applicants who

[[Page 18158]]

have not had their applications granted by an asylum officer.
    Commenters stated that the NPRM is not clear as to what extent 
applicants who do not receive a grant of asylum by the asylum officer 
will be negatively impacted if placed in affirmative proceedings 
without a guarantee of full section 240 proceedings. Commenters stated 
that if the NPRM decreased due process protections of applicants by 
denying the benefit of full section 240 proceedings, it may reduce 
access to the asylum process. Commenters said the NPRM raises 
transparency concerns regarding how the Departments will handle cases 
after review by an asylum officer.
    Commenters said the Departments must not enact a faster process at 
the expense of due process protections and one commenter expressed 
concern that the NPRM's limited review proceedings would result in the 
creation of a de facto ``rocket docket'' that would place asylum 
seekers at risk of summary deportations. Absent clarification on the 
potential impact of these provisions, the commenters said they had been 
denied an opportunity to meaningfully comment on the NPRM.
    Response: As described above in Section III of this preamble, the 
Departments have determined that a noncitizen whose asylum claim is not 
granted by an asylum officer after an initial adjudication will be 
issued an NTA and referred to an IJ for streamlined section 240 removal 
proceedings, and the Departments have decided not to implement the IJ 
review proceedings originally proposed in the NPRM. Section 240 
proceedings follow issuance of a notice of charges of inadmissibility 
or removability against a noncitizen, INA 239(a)(1), 8 U.S.C. 
1229(a)(1); INA 240(a), 8 U.S.C. 1229a(a), and provide an opportunity 
for the noncitizen to make a case to an IJ, INA 240(a), (b), 8 U.S.C. 
1229a(a), (b). Accordingly, the use of section 240 proceedings provides 
notice and an opportunity to be heard, which satisfies due process. 
See, e.g., LaChance v. Erickson, 522 U.S. 262, 266 (1998) (``The core 
of due process is the right to notice and a meaningful opportunity to 
be heard.'').
    The Departments' decision not to implement the NPRM's proposal for 
limited review proceedings for applications not granted by the asylum 
officer and instead to refer noncitizens to streamlined section 240 
removal proceedings addresses commenters' concerns that the NPRM's 
proposed proceedings were overly restrictive. In response to 
commenters' concerns regarding the nature of the record created by the 
asylum officer, the Departments note that while the written record of 
the positive credible fear determination will be considered a complete 
asylum application, applicants may subsequently amend or correct the 
biographic or credible fear information in the Form I-870, Record of 
Determination/Credible Fear Worksheet, or supplement the information 
collected during the process that concluded with a positive credible 
fear determination. 8 CFR 208.4(b)(2). Also, because the IFR is 
consistent with the evidentiary standard for section 240 proceedings, 
noncitizens may review and present evidence that is relevant and 
probative, which eliminates the NPRM's limited evidentiary standard of 
``necessary'' and ``not duplicative'' and ensures noncitizens have the 
opportunity to supplement the record for IJ review. 8 CFR 1240.17(g). 
Upon conclusion of the streamlined section 240 proceedings, the DOJ 
regulations provide that an IJ will issue a decision considering the 
full record before the IJ, as set forth at new 8 CFR 1240.17(f)(5), and 
noncitizens will have an opportunity for appeal. 8 CFR 1240.13, 
1240.15. The IJ has a duty to provide a decision orally or in writing. 
See Matter of Kelly, 24 I&N Dec. 446, 447 (BIA 2008) (holding that the 
IJ has a responsibility ``to insure [sic] that the decision in the 
record is complete''); 8 CFR 1003.37. Specifically, the IJ ``shall 
decide whether an alien is removable from the United States. The 
determination of the [IJ] shall be based only on the evidence produced 
at the hearing.'' INA 240(c)(1)(A), 8 U.S.C. 1229a(c)(1)(A). These 
provisions ensure that noncitizens receive a meaningful opportunity to 
be heard and afford procedural protections and due process safeguards. 
Moreover, under the IFR, noncitizens will not need to engage in 
additional motions practice--as they would have under the NPRM--should 
they wish to seek other forms of relief beyond the applications 
previously considered by the asylum officer. Further, IJs will conduct 
hearings for noncitizens who request to present live testimony, unless 
the application can be granted without a hearing, as indicated at new 8 
CFR 1240.17(f)(4). The Departments find that the process set forth in 
this IFR addresses commenters' concerns that the NPRM provided undue 
deference to asylum officers while limiting the IJ's role in the 
proposed application review proceedings. While the Departments 
recognize that commenters stated they prefer ``full'' section 240 
proceedings over those proposed in the NPRM, the Departments believe 
that the streamlined procedures set forth in this rule are necessary 
and appropriate for furthering efficiency interests while still 
ensuring fair adjudication of claims. In addition, the transcription of 
the hearing before an asylum officer, along with the additional 
timelines for completing cases that are included in this IFR, address 
commenters' concerns about transparency as to how the Departments will 
handle cases.
    Comments: Commenters similarly stated that the NPRM does not permit 
procedures provided in section 240 proceedings, specifically in regard 
to continuances. Commenters explained that in section 240 proceedings, 
noncitizens are first scheduled for master calendar hearings where, 
among other things, IJs ask if they need a continuance to secure 
representation. Commenters stated that continuances are routine 
throughout the course of a case in immigration court. However, if 
proceedings are transferred to the asylum office, commenters were 
concerned that noncitizens will have less freedom to request their 
interview be rescheduled because DHS only allows for continuances of 
asylum officer proceedings in ``exceptional circumstances.''
    Commenters also pointed out that 8 CFR 1003.48(e) as proposed in 
the NPRM did not adequately contemplate the legitimate needs for which 
an extension may be necessary (e.g., to obtain representation by 
counsel). Commenters reasoned that applications for continuances should 
be fully documented, setting forth the steps already taken to secure an 
attorney or to obtain supporting evidence. Commenters believed that 
requests should be granted to allow for additional time, within 
reasonable limits, if applicants establish that they have been diligent 
and thorough with their search.
    Response: At new 8 CFR 1240.17(h), the IFR explicitly provides for 
continuances in the context of streamlined section 240 proceedings. As 
specifically relevant to commenters' concerns, the IJ may grant initial 
continuances, including continuances to allow the noncitizen time to 
secure representation. These initial continuance standards will be 
governed by the long-standing, traditional ``good cause'' standard, as 
described at new 8 CFR 1240.17(h)(2)(i). See 8 CFR 1003.29.
    As discussed above in Section III of this preamble, and as found at 
new 8 CFR 1240.17(h)(2)(ii) and (iii), the IFR also allows additional 
continuances beyond the initial 30-day ``good cause'' period, but the 
standards for additional

[[Page 18159]]

continuances beyond the initial 30-day ``good cause'' period will be 
increasingly restrictive as the noncitizen's requested continuances 
increase the aggregate delay of the proceedings. The IFR provides 
heightened standards for consideration when the merits hearing has been 
delayed for more than 90 days past the initial master calendar hearing 
due to continuances granted to the noncitizen. Nevertheless, the IFR 
preserves the opportunity for continuances as necessary to ensure a 
fair proceeding or to prevent a violation of statutory or 
constitutional rights, including the statutory right to counsel, as set 
forth at new 8 CFR 1240.17(h)(2)(ii)-(iii).
    Comments: Commenters explained that the NPRM's proposed 
``prohibition'' on immigration court consideration on the issue of 
removability may violate due process and result in wrongful removals. 
For example, commenters described a situation in which an IJ properly 
probed for facts and discovered that the noncitizen facing removal was 
in fact a U.S. citizen. However, commenters explained, if IJs are not 
permitted to make a ruling on admissibility or removability, there is 
no incentive for them to inquire to determine if the applicant before 
them has undiscovered legal status. To ensure that noncitizens are not 
removed by mistake and to avoid unnecessary hearings for those who are 
not removable, the commenters said that IJs should be permitted to 
inquire and make determinations regarding removability.
    Response: The IFR resolves commenters' concerns with issues of 
removability and admissibility. In the streamlined section 240 removal 
proceedings introduced by this IFR, as in all section 240 proceedings, 
the IJ must make a determination regarding whether the noncitizen is 
subject to removal as charged. 8 CFR 1240.17(f)(2)(i), (k)(3); 8 CFR 
1240.10(c), (d). The IFR includes an exception to the timelines in the 
streamlined proceedings for cases in which the noncitizen makes a prima 
facie showing that the noncitizen is not subject to removability and 
the IJ determines that the challenge cannot be resolved simultaneously 
with the adjudication of the noncitizen's applications for asylum, 
statutory withholding of removal, or withholding or deferral of removal 
under the CAT. Instead, these noncitizens will be subject to ordinary 
section 240 proceedings, as described at new 8 CFR 1240.17(k)(3).
    Comments: Commenters disagreed with the NPRM's statement that 
``requiring a full evidentiary hearing before an IJ after an asylum 
officer's denial would lead to inefficiencies without adding additional 
value or procedural protections.'' 86 FR 46918. Commenters argued that 
this ignores the reality of the asylum process by assuming that 
applicants will be able to develop a full evidentiary record before the 
asylum officer, demonstrates a misunderstanding of how difficult it is 
to be granted asylum, and could hinder due process. Commenters said 
that nonadversarial hearings with asylum officers are not faster and 
fairer than immigration court hearings with represented applicants, 
especially if attorneys on both sides agree to narrow issues in dispute 
before the IJ. At least one commenter believed that, under the NPRM, an 
IJ's decision regarding rejecting or admitting evidence would not be 
reviewable by the BIA or a U.S. Court of Appeals because the NPRM did 
not require the judge to provide a reasoned decision. Therefore, 
commenters explained, the NPRM's proposed IJ review could deny a 
noncitizen the opportunity to relate clearly and completely the 
circumstances of persecution or a well-founded fear of persecution to 
either an asylum officer or IJ. Commenters anticipated that the NPRM, 
if it had been promulgated in that form, would be vacated because it is 
inconsistent with due process guaranteed by the Fifth Amendment as well 
as INA 240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B), which provides that 
noncitizens shall have a reasonable opportunity to examine the evidence 
against them, to present evidence on their own behalf, and to cross-
examine witnesses presented by the Government.
    Response: The Departments disagree with commenters' concerns that 
the initial asylum officer adjudication of claims would not provide 
further efficiencies over the current expedited removal credible fear 
screening process. Although this IFR revises the process as proposed by 
the NPRM for reviewing applications that an asylum officer does not 
grant, the Departments maintain that having an Asylum Merits interview 
with an asylum officer for noncitizens with positive credible fear 
determinations, as both the IFR and NPRM provide, will be more 
expeditious than the current process of referring all noncitizens with 
positive credible fear determinations to section 240 proceedings before 
the immigration court. As described in the NPRM, immigration courts are 
experiencing large and growing backlogs and subsequent adjudication 
delays. 86 FR 46907. Asylum officers are well trained and experienced 
with asylum adjudications, and each case that is granted by USCIS is a 
direct reduction in cases that would have been before EOIR. See id. The 
threshold asylum officer hearing proposed in the NPRM also will ensure 
that cases referred to immigration court will include a well-developed 
record. Where cases are referred with such a record, IJs will not have 
to grant continuances for respondents to file applications for asylum 
and related protection. Even though parties will be able to file 
additional evidence, the asylum officer record will help IJs to narrow 
issues. For both these reasons, USCIS adjudication of claims will 
promote efficiency before EOIR.
    In addition, the IFR does not adopt the NPRM's proposal for broad 
limits on introducing new evidence. Instead, the IFR provides at new 8 
CFR 1240.17(g)(1) that IJs may exclude documentary evidence or witness 
testimony ``only if it is not relevant or probative; if its use is 
fundamentally unfair; or if the documentary evidence is not submitted 
or the testimony is not requested by the applicable deadline, absent a 
timely request for a continuance or filing extension that is granted.'' 
The Departments believe the IFR's evidentiary standard addresses the 
commenters' concerns regarding the need for a full evidentiary hearing. 
Further, the Departments believe that, overall, the IFR's streamlined 
section 240 proceedings will be equally effective, if not more so, than 
the NPRM's proposed proceedings in enhancing efficient adjudication and 
replacing time-consuming evidentiary hearings. For example, the IFR 
provides that the asylum officer's record will be automatically 
transmitted upon DHS's issuance of an NTA, which will enable the 
parties to narrow the issues and assist the IJ's review of the case. 
The IFR also provides that if neither party requests to present 
testimony, or if the IJ determines that the asylum application can be 
granted without hearing testimony and DHS does not request to present 
testimony or evidence, the IJ can decide the case without a hearing. 
The IFR also provides various deadlines for the scheduling of hearings 
and the issuance of the IJ decision. These measures enhance efficiency 
by precluding the need for a full evidentiary hearing in some cases and 
by facilitating a more efficient hearing when one is necessary.
    Finally, in response to commenters' concerns regarding 
administrative and judicial review of IJ decisions regarding the 
admission of evidence, the Departments emphasize that there is not a 
substantive difference regarding IJs'

[[Page 18160]]

decisions on the admission of evidence in these streamlined section 240 
proceedings and standard 240 proceedings. Either party may challenge 
the IJ's decision during a subsequent appeal to the BIA, which will be 
reviewed pursuant to the same standards of review as for appeals from 
ordinary section 240 proceedings. See 8 CFR 1003.1; INA 242, 8 U.S.C. 
1252. A noncitizen who receives an adverse decision from the BIA may 
file a petition for review subject to the requirements of section 242 
of the INA, 8 U.S.C. 1252, and nothing in this rule affects that 
statutory provision.
    Comments: Commenters expressed concerns that IJs would serve a 
``pseudo-appellate'' role by reviewing decisions by asylum officers. 
The commenters characterized the current IJ review process of negative 
credible fear interviews as ``deficient'' and explained that expanding 
this aspect of the IJ's duty will amplify due process concerns and 
result in erroneous removals. Therefore, commenters urged that, if the 
NPRM is not withdrawn, the Departments should at least automatically 
refer claims not granted by asylum officers for full section 240 
proceedings.
    Response: The Departments find that the decision to place 
individuals whose applications are not granted by the asylum officer 
into streamlined 240 proceedings, rather than the NPRM's proposed IJ 
review proceedings, addresses commenters' concerns that the new 
procedures would have been akin to a credible fear review rather than 
an adjudication in removal proceedings. As commenters point out, 
section 240 proceedings allow noncitizens a fuller opportunity to 
present evidence and testimony to develop the record, secure and work 
with counsel if they have not yet done so, and participate in 
additional hearings as needed. See generally 8 CFR part 1240. The IFR 
includes additional procedural requirements to ensure that proceedings 
will proceed more expeditiously, but will still give noncitizens a full 
opportunity to develop the record and obtain a de novo determination as 
to asylum eligibility from the IJ, thus obviating commenters' concerns. 
When conducting these streamlined 240 proceedings, IJs will exercise 
independent judgment and discretion in reviewing the claims before them 
for adjudication. See 8 CFR 1003.10(b); see generally EOIR, Ethics and 
Professionalism Guide for Immigration Judges (Jan. 2011), https://www.justice.gov/eoir/sibpages/IJConduct/EthicsandProfessionalismGuideforIJs.pdf (IJ Ethics and Professionalism 
Guide) (requiring IJs to, inter alia, be faithful to the law, maintain 
professional competence in the law, act impartially, and avoid actions 
that would create the appearance of violations of the law or applicable 
ethical standards). The Departments believe the protections provided in 
section 240 proceedings are appropriate to provide a sufficient record 
for appeal.
    Nevertheless, the Departments also clarify that, contrary to 
commenters' conclusory statements, IJs' current credible fear review 
process is not ``deficient'' and does not violate due process. The IFR 
maintains the NPRM's approach of restoring the credible fear screening 
standards that were in effect prior to the regulatory changes made 
between 2018 and 2020. See 86 FR 46911. None of those regulations has 
gone into effect, as all are delayed, vacated, or enjoined. See id. at 
46909 n.24. The Departments believe that returning the regulations to 
the framework in place prior to the changes made between 2018 and 2020 
will ensure the process is more efficient, effective, and consistent 
with congressional intent. Id. at 46914. The Supreme Court has 
emphasized that noncitizens who are encountered in close vicinity to 
and immediately after crossing the border and placed in expedited 
removal proceedings, which include the credible fear screening process, 
have ``only those rights regarding admission that Congress has provided 
by statute.'' Thuraissigiam, 140 S. Ct. at 1983. Congress provided the 
right to a determination whether the noncitizen has a ``significant 
possibility'' of establishing eligibility for asylum under INA 208, 8 
U.S.C. 1158. See also INA 235(b)(1)(B)(ii), (v), 8 U.S.C. 
1225(b)(1)(B)(ii), (v). Because the regulations reestablish the 
``significant possibility'' standard, consistent with the statute, it 
does not infringe on noncitizens' rights. See Thuraissigiam, 140 S. Ct. 
at 1983. In addition, despite the Departments' disagreement with the 
commenters' characterization of the credible fear review process, the 
Departments find that this IFR addresses commenters' concerns as IJs 
will continue to have the traditional adjudicator authorities in 240 
proceedings.
    Comments: Commenters stated that the reports by the U.S. Commission 
on International Religious Freedom (``USCIRF''), the Administrative 
Conference of the United States (``ACUS''), and the Migration Policy 
Institute (``MPI'') cited in the NPRM as support for asylum officers 
adjudicating defensive claims do not suggest eliminating full 
evidentiary IJ hearings of defensive asylum claims, which commenters 
believed the NPRM implied. 86 FR 46917-18. Commenters stated that 
requiring the applicant to petition the IJ for consideration of 
additional evidence would curtail due process beyond the procedure 
recommended by USCIRF whereby asylum officers would either grant asylum 
cases immediately after the credible fear interview or, in more 
complicated cases, refer the applicant to full proceedings before an 
IJ.
    Response: The NPRM's references to reports by the USCIRF, ACUS, and 
MPI were not meant to imply support for the NPRM's proposed process, as 
commenters alleged. Rather, the NPRM clearly stated that those reports 
``assumed that individuals denied asylum by a USCIS asylum officer 
would be issued an NTA and placed into section 240 removal proceedings 
before an IJ, where the noncitizen would have a second, full 
evidentiary hearing on the asylum application with a different 
decision-maker. This proposed rule would not adopt that approach . . . 
.'' 86 FR 46918 (emphasis added). Nevertheless, for the reasons 
discussed thus far and above in Section III of this preamble, this IFR 
replaces the NPRM's proposed IJ review procedure with streamlined 
section 240 removal proceedings.
    Comments: Commenters raised concerns that the NPRM's procedures 
distinct from section 240 IJ review could have a negative impact on 
those applicants who are unrepresented by counsel, non-English 
speakers, or trauma survivors. Accordingly, commenters recommended that 
asylum seekers instead be given an opportunity to obtain counsel and 
present all evidence in support of their claims in section 240 merits 
hearings before IJs. Commenters asserted that only such a hearing would 
ensure that pro se applicants are not wrongfully returned to danger in 
violation of the United States' nonrefoulement obligations.
    Commenters generally argued that issues related to lack of access 
to counsel stem from the fact that noncitizens appearing before the 
immigration courts have no right to Government-appointed counsel. 
Commenters urged the Departments to consider that, while many asylum 
seekers do not have access to legal representation at any stage of 
immigration proceedings, they are particularly unlikely to have legal 
representation at early stages of presenting their claims. Other 
commenters believed that the majority of asylum applicants do not have

[[Page 18161]]

representation. Commenters expressed concerns that, under the NPRM, 
unrepresented asylum seekers would not be able to adequately present 
their asylum claims before the asylum officer, and that these initial 
deficiencies would later pose significant challenges to legitimate 
claims, even with the assistance of counsel, once asylum seekers are 
before the immigration court. Commenters also raised concerns that 
unrepresented applicants, many of whom are unfamiliar with the 
complexities of immigration law and do not speak English, would be 
unable to adequately draft filings, fill out forms, and present their 
claims at all, particularly within the time constraints presented by 
the NPRM. Commenters noted that these concerns are further exacerbated 
by the fact that many applicants suffer from post-traumatic stress 
disorder or other mental health ailments.
    Commenters stated that the NPRM would negatively impact trauma 
survivors' ability to present their claims because they may not be able 
to immediately disclose all relevant facts pertaining to their claims 
to their asylum officers or even their own counsel. Commenters stated 
that it is common for asylum seekers to disclose only limited 
information about their past persecution in early statements and then 
to provide greater detail when later questioned by an IJ. Commenters 
stated that it may take several meetings with an advocate before asylum 
seekers are comfortable enough to share the details of their 
persecution. Commenters asserted that the NPRM would increase the 
likelihood that such applicants may face erroneous adverse credibility 
determinations, and that the expedited process would be generally 
detrimental to a full exploration of claims. Commenters particularly 
argued that more robust procedural safeguards are critically important 
to guaranteeing LGBTQ+ asylum seekers the opportunity to present their 
claims. Commenters cited Matter of M-A-M-, 25 I&N Dec. 474, as an 
example of a case that recognized the important procedural protections 
available in section 240 removal proceedings. In Matter of M-A-M-, the 
BIA recognized the right for applicants who may lack mental capacity to 
present expert testimony to demonstrate that their mental health 
conditions impacted their claims. Id. at 479.
    Moreover, commenters believed that asylum officers are not in the 
best position to probe an applicant on the reasons for inconsistencies 
in a claim, particularly when the asylum seeker acted pro se or 
received ineffective assistance of counsel before the Asylum Office. 
Commenters anecdotally stated that they have witnessed circumstances 
where asylum officers failed to thoroughly probe the reasons for 
inconsistencies, but where applicants later resolved inconsistencies 
during direct examination in immigration court. Without the ability to 
testify live on the same issues in a truly de novo proceeding, one 
commenter said, many traumatized asylum seekers would not have the 
opportunity to present critical evidence that would prove their claims.
    Response: The IFR addresses commenter concerns about the rule's 
impact on vulnerable populations, including individuals with post-
traumatic stress disorder, individuals who face language barriers, and 
individuals who are unrepresented, by providing that noncitizens whose 
applications are not granted by the asylum officer will be placed in 
streamlined section 240 proceedings rather than finalizing the IJ 
review procedure proposed in the NPRM. The Departments have included 
procedural rules to ensure the efficient disposition of these cases, 
and noncitizens in these streamlined 240 proceedings will receive all 
of the procedural protections required by section 240 of the Act, 8 
U.S.C. 1229a, which commenters were concerned were lacking in the NPRM. 
See INA 240(b)(4), 8 U.S.C. 1229a(b)(4) (setting forth noncitizen's 
rights in proceedings); see also Matter of M-A-M-, 25 I&N Dec. at 479-
83 (stating that where a noncitizen has indicia of incompetency, the IJ 
must inquire further and establish safeguards where appropriate). The 
Departments believe that these measures are sufficient to ensure that 
all noncitizens, including vulnerable noncitizens, have adequate time 
to prepare and present their claims. Moreover, the IFR explicitly 
exempts certain categories of noncitizens, including juveniles and 
mentally incompetent individuals, from the streamlined procedures 
created by this IFR, as described at new 8 CFR 1240.17(k).
    With respect to commenters' concerns about noncitizens not having 
adequate access to or time to obtain counsel, the Departments recognize 
the ``immense value of legal representation in immigration proceedings, 
both to the individuals that come before [EOIR] and to the efficiency 
of [its] hearings.'' Director's Memo (``DM'') 22-01: Encouraging and 
Facilitating Pro Bono Legal Services 1 (Nov. 5, 2021), https://www.justice.gov/eoir/book/file/1446651/download. As with all 
noncitizens in section 240 removal proceedings, the individuals subject 
to the IFR have a right to representation at no cost to the Government. 
INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A).\80\ Additionally, resources 
are available for pro se noncitizens in immigration court. See, e.g., 
EOIR, Pro Bono Legal Service Providers, https://probono.eoir.justice.gov; EOIR, Immigration Court Online Resource, 
https://icor.eoir.justice.gov/en/;cf. EOIR, Press Release, EOIR 
Announces ``Access EOIR'' Initiative (Sept. 28, 2021) (aiming to 
increase representation before EOIR), https://www.justice.gov/eoir/pr/eoir-announces-access-eoir-initiative; EOIR, Press Release, EOIR 
Launches Resources to Increase Information and Representation (Oct. 1, 
2020), https://www.justice.gov/eoir/pr/eoir-launches-resources-increase-information-and-representation.
---------------------------------------------------------------------------

    \80\ The Departments strive to improve access to counsel, as 
evidenced through other policies and rulemakings, and recognize that 
increasing access to counsel will, in turn, further the efficiency 
of all of the Departments' operations, including those set forth in 
this rulemaking. See DM 22-01: Encouraging and Facilitating Pro Bono 
Legal Services (Nov. 5, 2021) (``Competent legal representation 
provides the court with a clearer record and can save hearing time 
through more focused testimony and evidence, which in turn allows 
the judge to make better-informed and more expeditious rulings.''); 
see generally Executive Order 14012, 86 FR 8277, 8277 (Feb. 2, 2021) 
(directing Attorney General and Secretary to ``identify barriers 
that impede access to immigration benefits and fair, efficient 
adjudications of these benefits and make recommendations on how to 
remove these barriers, as appropriate and consistent with applicable 
law''). Nevertheless, recommendations from commenters calling for 
noncitizens to have access to appointed counsel in section 240 
removal proceedings are beyond the scope of this rulemaking.
---------------------------------------------------------------------------

    In addition, because noncitizens in section 240 removal 
proceedings, including the streamlined section 240 proceedings set 
forth in the IFR, have the right to provide testimony and evidence in 
support of their applications, the Departments find that placing 
noncitizens whose applications are not granted by the asylum officer in 
streamlined section 240 proceedings rather the NPRM's proposed distinct 
proceedings addresses commenters' concerns about the effect of a lack 
of representation early in the expedited removal or asylum application 
process. In other words, noncitizens who fail to provide evidence or 
testimony on relevant parts of their claims before asylum officers due 
to a lack of representation will have the ability to submit additional 
evidence or testimony to the IJ during subsequent streamlined section 
240 proceedings, as described above in Section III of this preamble. 
Further, noncitizens in these streamlined section 240 proceedings will 
have opportunities to obtain

[[Page 18162]]

representation even before removal proceedings are initiated as they 
may be represented during the initial adjudication conducted by the 
asylum officer. See 8 CFR 208.9.
    The Departments believe that commenters' concerns that the 
procedures proposed in the NPRM would negatively impact individuals 
whose claims develop over time or who need additional time and 
testimony to explain inconsistencies and aspects of their claim that 
they do not feel were adequately addressed during the interview are 
ameliorated by the IFR, which does not contain the NPRM's restrictions 
on the introduction of new testimony or documentary evidence. Instead, 
the IFR incorporates evidentiary standards consistent with those in 
section 240 proceedings--evidence must be relevant, probative, and 
fundamentally fair, as described at 8 CFR 1240.17(g)(1). See INA 
240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B) (noncitizens must have a 
``reasonable opportunity'' to present evidence on their behalf); 8 CFR 
1240.7(a); see also Nyama, 357 F.3d at 816 (``The traditional rules of 
evidence do not apply to immigration proceedings . . . . `The sole test 
for admission of evidence is whether the evidence is probative and its 
admission is fundamentally fair.' '' (quoting Espinoza, 45 F.3d at 
310)). Noncitizens may also request to provide additional testimony 
where they believe that it is necessary, as described above in Section 
III of this preamble.
    Comments: Commenters expressed concerns that, by relying solely on 
the record before the asylum officer, the NPRM would effectively result 
in IJs ``rubber-stamping'' asylum officer decisions without providing 
meaningful review and oversight. Commenters stated that full 
evidentiary hearings before an IJ provide an essential check on errors 
during the credible fear interview and affirmative interview processes.
    Commenters stated that the NPRM does not mandate that IJs have the 
same obligations regarding evidence and the record that are set forth 
in the INA for section 240 proceedings, such as an obligation to 
``administer oaths, receive evidence, and interrogate, examine, and 
cross-examine the [noncitizen] and any witnesses.'' INA 240(b)(1), 8 
U.S.C. 1229a(b)(1). Instead, commenters stated that the NPRM would 
create a presumption against holding immigration court hearings and 
against the presentation of additional evidence or testimony. 
Commenters were concerned that, as a result, IJs would pretermit claims 
and affirm decisions not granting asylum without first conducting a 
hearing in person.
    Commenters urged that a fuller review is necessary to prevent a 
negative use of the asylum officer's increased authority under the NPRM 
in the future. Similarly, commenters also expressed concern that future 
IJ performance metrics could exacerbate these issues by encouraging 
overly cursory reviews.
    Response: As an initial matter, the decision to place noncitizens 
whose applications are adjudicated but not granted by the asylum 
officer in streamlined section 240 proceedings, rather than the NPRM's 
proposed IJ review proceedings, addresses commenters' concerns that 
limited proceedings would not allow for meaningful review and oversight 
by the IJ. In particular, the switch to streamlined section 240 
proceedings will ensure that the IJ's review is meaningful and not a 
``rubber-stamp'' of the asylum officer's decision. The streamlined 
section 240 proceedings established by the IFR will allow noncitizens 
to submit additional testimony or evidence, if they deem it necessary, 
as described at new 8 CFR 1240.17(e), (f). Accordingly, commenters' 
concerns--that the IJ could deny an application based solely on the 
record before the asylum officer without allowing the noncitizen to 
testify or provide evidence--are no longer applicable.
    The Departments believe that the procedures in this IFR also 
ameliorate commenters' concerns over statements in the NPRM that IJs 
could decide whether to accept additional evidence or make a 
determination based solely on the asylum officer's record. In addition 
to applying the statutory procedures regarding evidence and maintenance 
of the record set forth in section 240 of the Act, 8 U.S.C. 1229a, the 
IFR permits noncitizens to request to provide additional testimony 
where necessary and only permits the IJ to deny such requests where the 
IJ concludes there is sufficient evidence in the record to grant the 
asylum application without hearing additional testimony. The 
Departments further believe that the detailed review procedures set 
forth in the IFR alleviate commenters' concerns about IJs adjudicating 
applications without adequately reviewing asylum officer decisions. 
Because the IFR ameliorates the commenters' concerns on these points, 
the IFR also addresses the commenters' related concern that future IJ 
performance metrics could exacerbate these issues.\81\
---------------------------------------------------------------------------

    \81\ EOIR no longer reviews IJ performance through individual IJ 
performance metrics. IJs are held to high ethical standards, in 
part, to avoid impropriety or the appearance of impropriety, which 
would include deciding cases consistent with performance metrics 
rather than applicable law and regulations. See IJ Ethics and 
Professionalism Guide (providing that IJs must be faithful to the 
law, maintain professional competence in the law, act impartially, 
and avoid actions that would create the appearance that the IJ is 
violating the law or applicable ethical standards); see also EOIR 
Policy Manual, Part II, ch. 1.3(c) (stating that IJs ``strive to act 
honorably, fairly, and in accordance with the highest ethical 
standards'').
---------------------------------------------------------------------------

    Comments: Commenters disputed the NPRM's justification that the 
limited review proceedings would increase efficiency in the asylum 
adjudication process. For example, commenters stated that IJs would 
have to divert resources from substantive adjudications to address a 
large number of motions or appeals resulting from confusion over the 
requirement that the applicant affirmatively request further IJ review 
within a short time period. Commenters suggested that this provision 
may also spark litigation and diversion of resources to correct 
injustices that would otherwise lead the United States to return 
refugees to persecution, in violation of nonrefoulement principles.
    Commenters also remarked that the NPRM did not adequately explain 
why establishing an entirely separate process through the Asylum Office 
and courts would serve efficiency interests when those same officials 
would continue to be tasked with their current functions and duties. 
Commenters said that the Departments did not provide a meaningful 
rationale for why a separate procedure apart from section 240 
proceedings was necessary to carry out efficient, just results for 
asylum seekers. Commenters suggested that it would be more efficient to 
place all applicants in section 240 proceedings, instead of the NPRM's 
IJ review procedure, because the novel proceedings would give rise to 
prolonged disputes about the introduction of new evidence to supplement 
the asylum officer's record or support prima facie eligibility for 
alternative relief. Commenters argued that motions that would increase 
under the NPRM would include motions to file additional evidence; 
motions to vacate the limited asylum-, withholding-, and CAT-only 
proceedings to pursue other relief or protection; and the inevitable 
cross-motions, motions to reconsider, interlocutory appeals to the BIA, 
motions to reopen, and petitions for review by U.S. Courts of Appeals. 
Commenters also asserted, generally, that challenges to expedited 
removal cases are already compounding the backlog of cases.

[[Page 18163]]

    Response: The IFR addresses nearly all of the commenters' concerns 
by providing that noncitizens whose applications are adjudicated but 
not granted by the asylum officer will now be placed in streamlined 
proceedings under section 240 of the Act, 8 U.S.C. 1229a.
    The Departments emphasize that section 240 proceedings are the 
default, most common type of removal proceeding. This familiar 
framework safeguards due process interests by ensuring that noncitizens 
have certain rights and protections in such proceedings. See INA 
240(b)(4), 8 U.S.C. 1229a(b)(4). The Departments believe that adhering 
to this statutory framework, but establishing procedural case-
processing measures specific to this category of cases, will further 
the Departments' efficiency interests without undermining fairness in 
proceedings. Further, noncitizens in streamlined section 240 
proceedings may apply for other forms of relief or protection without 
the need to first submit a motion to the IJ to vacate the asylum 
officer's order of removal, which would have been the case under the 
NPRM at 8 CFR 1003.48(d) (proposed). See 86 FR 46920. The IFR provides, 
at new 8 CFR 1240.17(k)(2), that a noncitizen will not be subject to 
the streamlined procedures if the noncitizen produces evidence of prima 
facie eligibility and the noncitizen is seeking to apply for, or has 
applied for, such relief or protection other than asylum, statutory 
withholding of removal, withholding or deferral of removal under the 
CAT, and voluntary departure.
    Comments: Commenters asserted that the NPRM's IJ review procedure 
would violate the Act or is otherwise contrary to congressional intent.
    First, commenters asserted that the Act requires that individuals 
in expedited removal who seek review of asylum officers' decisions not 
to grant asylum be placed in full section 240 removal proceedings. 
Commenters further stated that none of the statutory sections on which 
the NPRM relied displaces the statutory presumption of section 240 
removal proceedings. Commenters stated that nothing in the Act suggests 
that Congress exempted from section 240 removal proceedings noncitizens 
seeking asylum who are determined to have credible fear, or any subset 
of that population.
    Commenters argued that the Departments' statutory interpretation 
erroneously rests on the negative inference that section 235(b)(1) of 
the Act, 8 U.S.C. 1225(b)(1), permits proceedings other than section 
240 proceedings because that section does not explicitly require 
section 240 proceedings, as compared with section 235(b)(2) of the Act, 
8 U.S.C. 1225(b)(2), which explicitly requires section 240 proceedings. 
Commenters asserted that reading is erroneous because section 235(b)(1) 
of the Act, 8 U.S.C. 1225(b)(1), establishes a general rule that 
applicants for admission must be placed in section 240 removal 
proceedings. Commenters believe that section 235(b)(2)(B)(ii) of the 
Act, 8 U.S.C.1225(b)(2)(B)(ii), then creates an exception to that 
automatic entitlement for those defined as ``arriving'' in section 
235(b)(1) of the Act, 8 U.S.C. 1225(b)(1), because such individuals are 
placed in expedited removal. In sum, commenters generally assert that 
DHS screens 8 U.S.C. 1225(b)(1) applicants to determine which of the 
two statutorily established methods of removal will apply: Expedited 
removal for those without credible fear, or standard removal 
proceedings for those who establish credible fear. Commenters asserted 
that the statute has never been and cannot now reasonably be understood 
to exclude all (b)(1) applicants from a full removal hearing once they 
are no longer subject to the expedited removal process.
    Commenters also disputed the Departments' interpretation of section 
235(b)(2)(A) of the Act, 8 U.S.C. 1225(b)(2)(A), and statement that 
``noncitizens whom DHS has elected to process into the United States 
using the expedited removal procedure are expressly excluded from the 
class of noncitizens who are statutorily guaranteed section 240 removal 
proceedings.'' 86 FR 46917. Commenters argue that a credible fear 
screening creates an exit from expedited removal proceedings, and, by 
design, those who establish credible fear are no longer subject to 
expedited removal. Thus, commenters concluded, the Departments' view 
that people seeking asylum can be forced into lesser proceedings in 
immigration court is contrary to law.
    Commenters also believe that the legislative history of expedited 
removal demonstrates that Congress intended for all noncitizens found 
to possess a credible fear of persecution or torture to be afforded 
section 240 proceedings. Commenters stated that, in drafting the asylum 
statute and significantly amending the Act through IIRIRA, it is clear 
that Congress contemplated that asylum seekers would be afforded an 
opportunity to defend against deportation before an IJ in full section 
240 proceedings, which include various procedural and due process 
safeguards. Specifically, commenters cited the congressional record in 
support of their position. See, e.g., 142 Cong. Rec. S4461 (1996) 
(statement of Sen. Alan Simpson) (``[T]he bill provides very clearly an 
opportunity for every single person[, even those] without documents, or 
with fraudulent documents . . . to seek asylum.'').
    Commenters further argued that IIRIRA includes three levels of 
screening to ensure that asylum seekers are clearly identified so that 
genuine asylum seekers are not subject to the expedited procedures that 
apply to non-asylum seekers. In support, commenters referenced 
statements by the chief drafters of the law explaining that asylum 
seekers can be ordered removed only after full section 240 proceedings 
where they can submit evidence, call witnesses, and testify. See, e.g., 
142 Cong. Rec. S4492 (1996) (statement of Sen. Alan Simpson) (``If 
[asylum seekers] have credible fear, they get a full hearing without 
any question.''). Commenters also suggested that other provisions in 
the Act demonstrate congressional intent to place such applicants in 
section 240 removal proceedings. For example, commenters stated that at 
the same time Congress enacted expedited removal, Congress gave asylum 
seekers a full year to submit an initial application in recognition 
that asylum cases take time to prepare. Accordingly, commenters said 
that the NPRM contravened congressional intent by precluding access to 
section 240 removal proceedings for applicants not granted asylum 
following a positive credible fear interview.
    On the other hand, some commenters objected to the NPRM on the 
basis that it would extend the credible fear and review process further 
than Congress intended. Specifically, these commenters asserted that 
the additional review by the asylum officers and within USCIS 
undermined congressional intent for the expedited removal process to be 
truly expedited. In support, commenters cited Congress's statutory 
scheme to limit the administrative review of expedited removal orders 
and limit judicial review of determinations made during the expedited 
removal process. See INA 242, 8 U.S.C. 1252. Commenters concluded that 
creating additional levels of review would slow the credible fear 
process, waste administrative resources, and run counter to Congress's 
legislative aims.
    Commenters stated that the restrictions on IJs in the NPRM's 
limited proceedings would conflict with the IJ's role to develop the 
record before the

[[Page 18164]]

court. Commenters stated that the Act and its implementing regulations 
require IJs to take an active role in section 240 removal proceedings 
to develop the record and ensure that applicants are advised of the 
nature of the proceedings, as well as their rights and responsibilities 
therein. See, e.g., Abdurakhmanov v. Holder, 735 F.3d 341, 346 n.4 (6th 
Cir. 2012) (``An IJ has . . . an obligation[ ] to ask questions of the 
[noncitizen] during the hearing to establish a full record . . . . [The 
questioning] should be designed to elicit testimony relevant to the 
fair resolution of the [noncitizen's] applications.''); Toure v. Att'y 
Gen., 443 F.3d 310, 325 (3d Cir. 2006) (``[A]n IJ has a duty to develop 
an applicant's testimony, especially regarding an issue that she may 
find dispositive . . . .'' (citing Matter of S-M-J-, 21 I&N Dec. at 
723-26)). Commenters stated that this duty differentiates IJs from 
Article III judges but is consistent with other types of administrative 
proceedings. Commenters explained that in the immigration context, 
courts have recognized that unique features of immigration court 
proceedings require IJs to fill this role to ensure fair and accurate 
adjudications.
    In addition, commenters stated that the NPRM's IJ review procedure 
would conflict with the United States' international obligations, 
including nonrefoulement, because it would diminish the significance of 
immigration court review as a safeguard. On the other hand, commenters 
stated that the protections afforded to applicants in section 240 
proceedings comport with UNHCR guidance emphasizing that the asylum 
adjudicator's role is to ``ensure that the applicant presents his case 
as fully as possible and with all available evidence.'' See UNHCR, 
Handbook on Procedures and Criteria for Determining Refugee Status ] 
205(b)(1) (2019), https://www.unhcr.org/en-us/publications/legal/5ddfcdc47/handbook-procedures-criteria-determining-refugee-status-under-1951-convention.html (last visited Mar. 5, 2022). Commenters also 
expressed concerns that the NPRM would effectively penalize asylum 
seekers based on their manner of entry--in violation of Article 31 of 
the Refugee Convention--as the NPRM would apply only to persons who 
have sought asylum at or after recently crossing the border.
    Response: The Departments have considered commenters' concerns that 
the NPRM's proposal that noncitizens not granted asylum by the asylum 
officer would immediately be ordered removed, with the opportunity to 
seek IJ review through a newly created proceeding, would violate 
congressional intent, the Act, and international obligations. Through 
this IFR, noncitizens not granted asylum by the asylum officer instead 
will be referred to streamlined section 240 proceedings before an IJ. 
While the Departments are establishing procedural steps to ensure the 
efficient disposition of these cases, noncitizens in streamlined 
section 240 proceedings established by the IFR are entitled to the same 
general rights and protections as noncitizens in section 240 
proceedings. See, e.g., INA 240(b)(4), 8 U.S.C. 1229a(b)(4) (setting 
forth noncitizens' rights in proceedings). This shift generally 
resolves the commenters' concerns on these points by returning to the 
use of section 240 proceedings and affirming the role of the IJ as the 
adjudicator, while still ensuring that the proceedings are completed 
expeditiously.
    The Departments disagree, however, with commenters' argument that 
the NPRM violates congressional intent to create an efficient expedited 
removal process by proposing an additional layer of adjudication and 
review by the asylum officer. Specifically, the Departments believe 
that the commenters' concerns erroneously conflate expedited removal of 
noncitizens who have not demonstrated a credible fear of persecution or 
torture with the separate process that occurs for noncitizens who have 
established a credible fear of persecution or torture. The Act makes 
clear that most noncitizens who are arriving in the United States, if 
inadmissible under certain provisions of the Act, will be removed 
``without further hearing or review.'' INA 235(b)(1)(A)(i), 8 U.S.C. 
1225(b)(1)(A)(i). The Act carves out one exception to this general 
rule: If the noncitizen indicates a fear of persecution or torture or 
an intention to apply for asylum, rather than face immediate removal, 
the noncitizen will instead be interviewed by an asylum officer to 
determine whether the noncitizen has a credible fear of persecution. 
INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). If, during the 
interview, the noncitizen does not demonstrate a credible fear, the Act 
again calls for the noncitizen's immediate removal ``without further 
hearing or review.'' INA 235(b)(1)(B)(iii)(I), 8 U.S.C. 
1225(b)(1)(B)(iii)(I).\82\ This IFR does not make any significant 
changes to the implementing regulations for these statutory provisions.
---------------------------------------------------------------------------

    \82\ Although the Act states that, under these circumstances, 
the noncitizen will be removed without further hearing or review, 
the Act also provides for a very limited IJ review of the asylum 
officer's determination that the noncitizen does not have a credible 
fear of persecution or torture. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III). The IJ's decision reviewing the asylum 
officer's credible fear determination is final and not subject to 
reconsideration or appeal. 8 CFR 1208.30(g)(2)(iv)(A).
---------------------------------------------------------------------------

    Although the initial screening process is intended to be expedited, 
once a noncitizen is determined to have a credible fear of persecution 
or torture, the Act no longer calls for the noncitizen's removal 
without further hearing or review. Rather, it establishes that the 
noncitizen's application for asylum shall be given ``further 
consideration.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii).\83\ 
The Act does not specify the contours of or the appropriate speed at 
which such further consideration should occur before a noncitizen 
receives a final adjudication.
---------------------------------------------------------------------------

    \83\ For further discussion regarding the legal authority for 
the NPRM, see Section II.B of this preamble.
---------------------------------------------------------------------------

    The Departments believe that the ``further consideration'' directed 
by Congress reasonably encompasses establishing a procedure under which 
an asylum officer adjudicates the asylum application in the first 
instance and, if the application is not granted, refers the noncitizen 
to streamlined section 240 proceedings. The Departments believe that 
this procedure will be more efficient than the current lengthy process 
in which noncitizens are referred directly to section 240 proceedings, 
both because cases that can readily be granted by the asylum officer 
will be removed from the docket, and because cases referred to the 
immigration court will arrive in immigration court with the benefit of 
a record assembled by the asylum officer that enables these section 240 
proceedings to be substantially streamlined, as outlined above in 
Section III of this preamble.
    Commenters' references to provisions of the Act that limit judicial 
review of decisions made during the initial screening process--i.e., 
whether there is expressed or established credible fear of persecution 
or torture--are inapposite because those provisions only limit judicial 
review of decisions made during that initial screening process. The 
Departments' view is that Congress did not eliminate or limit judicial 
review in cases involving noncitizens determined to have credible fear 
just because they were initially screened as possible candidates for 
expedited removal. See Thuraissigiam, 140 S. Ct. at 1965 (``Applicants 
can avoid

[[Page 18165]]

expedited removal by claiming asylum . . . . If the asylum officer 
finds an applicant's asserted fear to be credible, the applicant will 
receive `full consideration' of his asylum claim in a standard removal 
hearing.'' (footnotes omitted)).
    Comments: Commenters emphasized the importance of judicial review 
for adjudicating applications for asylum or protection, particularly 
for marginalized groups, and expressed concern that the NPRM would not 
sufficiently protect the right to judicial review.
    Commenters suggested placing applicants whose claims are 
adjudicated but not granted by an asylum officer in section 240 
proceedings rather than a new proceeding to ensure judicial review and 
avoid potential future litigation about the Federal courts' 
jurisdiction over these cases. While commenters primarily advocated for 
section 240 proceedings, they also recommended additional ways to 
improve the NPRM's proceedings to ensure adequate judicial review, such 
as, for example, amending the rule so that the IJ, not the asylum 
officer, would issue a removal order. The noncitizen could then appeal 
the IJ's decision to the BIA and seek judicial review of the BIA's 
decision.
    In contrast, other commenters disagreed that further changes are 
needed to protect judicial review and emphasized that the NPRM does not 
alter any current safeguards for individuals seeking asylum or 
protection. The commenters reiterated that those who are not granted 
asylum, withholding of removal, or protection under the CAT by an 
asylum officer would still have the option to have their cases heard by 
the immigration court, which would be a second level of review.
    Response: The Departments agree with commenters that the 
Departments' procedures must ensure the right to judicial review of 
adjudications of applications for asylum or protection. Judicial review 
ensures fairness and accuracy in immigration proceedings, and Congress 
specifically sought to ensure review remained available for asylum 
applications while otherwise limiting review over other types of 
decisions. See INA 242(a)(2)(B)(ii), 8 U.S.C. 1252(a)(2)(B)(ii) 
(Congress limiting judicial review of agency decisions regarding 
discretionary forms of relief ``other than the granting of relief under 
[INA 208(a),] section 1158(a) of this title.'').
    Regarding commenters' concerns that the procedure proposed in the 
NPRM might not allow for further judicial review, the Departments 
disagree with that view and, in any case, emphasize that the process 
has been revised as described above in Section III of this preamble so 
that noncitizens whose applications are adjudicated but not granted by 
the asylum officer will be issued an NTA and placed in streamlined 
section 240 proceedings. As with all section 240 removal proceedings, a 
noncitizen may first appeal the IJ's decision to the BIA, 8 CFR 
1240.15, and then appeal the BIA's decision to a Federal circuit court, 
INA 242, 8 U.S.C. 1252. In addition, under the IFR, the IJ issues the 
removal order, if applicable, rather than the asylum officer, 
consistent with some commenters' suggestions. The changes under this 
IFR demonstrate the Departments' continued commitment to fair 
adjudications, and address commenters' concerns regarding the need to 
ensure the availability of judicial review.
    The Departments are committed to maintaining longstanding 
procedural protections inherent in section 240 proceedings for 
noncitizens subject to the expedited removal process and subsequently 
determined to have a credible fear of persecution or torture. The 
Departments acknowledge that some commenters supported the NPRM's 
approach, and the Departments believe that the IFR will maintain the 
efficiencies and benefits provided for in the NPRM through the 
implementation of the new streamlined 240 removal proceedings.
b. De Novo Review of Full Asylum Hearing Record and Consideration of 
Additional Testimony and Evidence
    Comments: Commenters disputed the NPRM's characterization of the 
proposed IJ review proceedings as ``de novo,'' stated that use of the 
term ``de novo'' is ``paradoxical'' and ``misleading,'' and said that 
the proposed IJ review process may violate asylum seekers' due process 
rights. Commenters said that any standard of review other than a true 
de novo review would be inconsistent with the challenges associated 
with the effects of trauma, gathering evidence, and the asylum 
officers' previous role in granting or referring cases, not denying 
applications for asylum.
    Commenters stated that, while 8 CFR 1003.48(e) as proposed in the 
NPRM referred to the review by the IJ as ``de novo,'' the use of the 
phrase ``de novo'' appears to be misplaced. Commenters further stated 
that the current review proceedings for affirmative asylum applicants 
referred to immigration court, in which the IJ holds a new hearing and 
issues a decision independent from the asylum officer, are considered 
de novo review. On the other hand, commenters noted that, while the 
NPRM calls the new proceedings de novo, the IJ would not be required to 
conduct a new hearing independent of the asylum officer's decision. The 
commenters said a ``de novo'' hearing would typically treat a case as 
if it were being heard for the first time, but the NPRM limits the 
scope of ``de novo'' hearings by imposing evidentiary restrictions and 
limiting the IJ review to the transcript of the interview. Similarly, 
commenters also opposed the NPRM's use of the term ``shall'' when 
directing the IJ to review the asylum officer's decision and use of the 
term ``may'' when directing the IJ to consider additional evidence. 
Commenters explained that such terms impute an improper deference to 
the asylum officer's decision and limit the applicant's ability to 
supplement the record.
    At least one commenter expressed concern that the IJ's review of 
the asylum officer's decision would become similar to IJ review of 
asylum officers' credible fear interview decisions, which commenters 
disputed was a de novo review.
    Response: First, the Departments clarify that de novo review is a 
``court's nondeferential review of an administrative decision, 
usu[ally] through a review of the administrative record plus any 
additional evidence the parties present.'' Review, de novo review, 
Black's Law Dictionary (11th ed. 2019). De novo review does not mean, 
as some commenters suggested, that proceedings must begin anew without 
reference to the underlying decision (indeed, this construction would 
undermine the entire concept of a review) or with unlimited 
opportunities to submit new record evidence. Id. (``[N]ondeferential 
review of an administrative decision'' usually involves review of the 
``administrative record'' and ``additional evidence'' presented by the 
parties.).
    For example, the BIA conducts de novo review of legal questions, 
even though it generally may not consider new record evidence. See 8 
CFR 1003.1(d)(3)(ii) (``The Board may review questions of law, 
discretion, and judgment and all other issues in appeals from decisions 
of immigration judges de novo.''). The de novo review standard permits 
the BIA to draw legal conclusions without deference to the IJ's 
decision, based upon the record before it. By contrast, the BIA may 
only overturn an IJ's finding of fact where, based upon the existing 
record, the IJ's

[[Page 18166]]

finding was ``clearly erroneous.'' See 8 CFR 1003.1(d)(3)(i).
    In sum, the distinction between de novo review and other standards 
of review, such as clear error, is not based upon whether parties may 
submit additional record evidence, but rather how much deference the 
adjudicator must give to the underlying determinations based upon the 
existing record evidence. Accordingly, commenters' implications that a 
credible fear review under 8 CFR 1208.30(g) is not a de novo review are 
inaccurate. De novo review is a widely used standard of review in 
immigration proceedings and, under the IFR, IJs will conduct de novo 
review of asylum officer decisions as described at new 8 CFR 
1240.17(i).
    Second, the Departments emphasize that commenters' concerns 
regarding the submission of evidence under the NPRM are ameliorated by 
the IFR's shift from the limited review proceedings to streamlined 240 
proceedings as discussed above in Section III of this preamble. 
Specifically, under the IFR, either party may submit record evidence 
and request to present testimony, pursuant to new 8 CFR 
1240.17(f)(2)(i) and (ii). The IFR directs IJs to review an asylum 
officer's decision de novo, see new 8 CFR 1240.17(i), and the admission 
of evidence is governed by an evidentiary standard consistent with that 
currently used in section 240 proceedings. Given the shift to that 
evidentiary standard, the IFR does not contain the language stating 
that the IJ ``may'' accept additional evidence.
    Comments: Multiple commenters expressed due process concerns 
associated with the NPRM's proposed de novo review proceedings before 
an IJ, in particular with the limitations that any additional testimony 
or documentation reviewed by the IJ must be ``necessary'' and ``not 
duplicative.'' Overall, commenters stated that the NPRM seemed to 
eliminate or dilute longstanding procedural rights that noncitizens 
have had in section 240 removal proceedings. Commenters stated that the 
NPRM would deprive many asylum seekers of a meaningful opportunity to 
present their full story because a full examination would not occur 
before asylum officers, and evidentiary hearings before an IJ would 
generally be foreclosed. Commenters explained that this outcome is 
particularly inappropriate in situations where an IJ denies an 
application on the basis of an adverse credibility finding.
    Some commenters stated that the Departments appeared to contemplate 
that the asylum seeker would not ever appear before the IJ in most 
cases because the IJ would simply issue a decision based on the IJ's 
review of the asylum officer's record. Commenters compared this alleged 
limitation to EOIR's Case Flow Processing policy, which commenters 
stated limits master calendar hearings. Commenters explained that this 
hearing limitation essentially gives the IJ an appellate review role 
but deprives the asylum seeker's counsel from providing briefing to the 
IJ. One commenter stated that depriving asylum seekers of an 
evidentiary hearing would be ``overkill'' because the new proceedings 
outside of section 240 proceedings already would save significant time 
for IJs by narrowing the legal issues to be decided and shrinking the 
scope of relief or protection.
    Commenters stated that the nature of the hearings before the IJ 
would exacerbate rather than correct issues that may arise in the 
proceedings before the asylum officer because the hearing before the IJ 
is one in which the IJ reviews the record already created by USCIS. For 
example, commenters claimed the record would be sparse and unlikely to 
reflect a full accounting of the harm, persecution, or torture the 
asylum seeker experienced. Commenters alleged that the cumulative 
effect of this limitation as well as the evidentiary limitation would 
be to extend summary removal from the stage of threshold contact 
through the period when the claim is disposed of on the merits. At a 
minimum, commenters urged that the NPRM be revised to permit the taking 
of fresh testimony and the submission of new evidence to the IJ upon a 
proper showing.
    Further, commenters disputed that the NPRM's proposed procedure 
would result in a ``complete'' record. One commenter alleged that the 
proposed nonadversarial procedures would relegate attorneys to 
``passive observer status'' and prevent them from developing ``critical 
elements'' of a record, usually developed through presenting testimony, 
calling witnesses, or submitting documentary evidence.
    Also, regarding the evidentiary rules in the application review 
proceedings before the IJ, commenters said it is unclear whether an IJ 
would be required to give notice and an opportunity to provide 
additional evidence before summarily affirming the asylum officer's 
decision. Commenters said the Ninth Circuit has long held that the IJ 
must give the asylum applicant notice of the evidence required and an 
opportunity to provide it if the IJ believes further corroborating 
evidence is required to support an otherwise credible application. 
However, the commenters continued, there is no similar process for 
asylum interviews, which generally occur in one day, with all evidence 
required to be submitted prior to the interview.
    Commenters said that IJs would need additional training in order to 
preserve fairness and due process, given the distinct nature of 
reviewing interview transcripts. Commenters expressed concern that the 
NPRM did not adequately consider what this training may involve, but 
commenters urged the Departments to develop this training before 
enacting a final rule.
    Commenters said it is reasonable to expect that many asylum seekers 
would want to provide supplemental evidence and recommended that the 
Departments provide further assurances that asylum seekers would be 
able to do so and are entitled to a comprehensive review of their case 
before an IJ.
    To comport with due process and minimize the risk of refoulement, 
commenters asserted that the NPRM should prohibit pretermission by IJs 
based solely on the asylum officer's record and should instead specify 
a presumption of admissibility of new evidence and eliminate the 
requirement that parties must file motions to supplement the record.
    Response: As described above, the Departments have decided to refer 
all noncitizens whose applications are adjudicated but not granted by 
the asylum officer to streamlined section 240 removal proceedings 
rather than implementing the IJ review procedure proposed in the NPRM. 
As part of the streamlined section 240 removal proceedings, the 
Departments are not proposing to apply a novel evidentiary standard, 
and, instead, will adopt an evidentiary standard consistent with that 
used in section 240 removal proceedings. Parties to proceedings are 
familiar with this standard, and IJs have experience in its 
application. Further, while streamlined section 240 removal proceedings 
under this IFR include certain procedural requirements to maintain the 
expedited nature of the overall process, noncitizens will be assured 
the longstanding due process rights inherent in section 240 removal 
proceedings.
    The Departments emphasize that this decision not to adopt the 
NPRM's proposed evidentiary restrictions will not reduce the 
efficiencies the Departments sought in the NPRM. In fact, as previously 
explained, the Departments believe that the IFR's streamlined section 
240 removal proceedings will be equally as effective as the NPRM's 
proposed IJ review proceedings in enhancing efficient

[[Page 18167]]

adjudication and replacing time-consuming evidentiary hearings. For 
example, the IFR provides that the asylum officer's record will be 
automatically transmitted upon DHS's issuance of an NTA, which will 
expedite the parties' ability to narrow the issues and assist the IJ's 
review of the case. The IFR also provides that if neither party 
requests to present testimony, or if the IJ determines that the asylum 
application can be granted without hearing testimony, and DHS does not 
request to present evidence or witnesses or to cross-examine the 
noncitizen, the IJ can decide the case without a hearing. The IFR also 
provides various deadlines and procedural measures to ensure efficient 
processing that preclude the need to conduct a full evidentiary hearing 
or otherwise facilitate a more efficient hearing.
    The Departments disagree with commenters that noncitizens will be 
deprived a meaningful opportunity to present their claims to asylum 
officers. Asylum officers conduct interviews with the purpose of 
``elicit[ing] all relevant and useful information bearing on the 
applicant's eligibility for asylum.'' 8 CFR 208.9(b). Asylum officers 
receive specialized training and information in order to carry out 
their duties with professionalism and competence. See 8 CFR 208.1(b). 
Asylum officers have experience with (and receive extensive training 
on) eliciting testimony from applicants and witnesses, engaging with 
counsel, and providing applicants the opportunity to present, in their 
own words, information bearing on eligibility for asylum. As described 
in the NPRM, asylum officers will ``develop[ ] and consider[ ] the 
noncitizen's claim fully, including by taking testimony and accepting 
evidence, during the nonadversarial proceeding.'' 86 FR 46918. Asylum 
officers also are trained to give applicants the opportunity to provide 
additional information that may not already be in the record so that 
the asylum officer has a complete understanding of the events that form 
the basis for the application. Thus, the hearing before the asylum 
officer functions as an evidentiary hearing, as the applicant is 
required to ``provide complete information regarding the applicant's 
identity, including name, date and place of birth, and nationality, and 
may be required to register this identity.'' 8 CFR 208.9(b). Further, 
the noncitizen may have counsel or a representative present, present 
witnesses, and submit affidavits of witnesses and other evidence. Id. 
Noncitizens who are placed in the new process established by this IFR 
will have multiple opportunities to provide information relevant to 
their claims before USCIS asylum officers in nonadversarial settings, 
and at different stages will have the opportunity for an IJ to review 
or consider their asylum claim de novo.
    Further, the Departments disagree with commenters that IJs need 
special training to review transcripts. IJs regularly review hearing 
notes and records from USCIS, transcripts of hearings that indicate a 
criminal conviction, and transcripts of oral decisions that are 
appealed to the BIA. See, e.g., 8 CFR 1003.5(a) (transcripts for the 
BIA); 8 CFR 1003.41(a)(4) (criminal hearing transcripts); see also EOIR 
Policy Manual, Part VIII, Ch. VIII.3.A: Uniform Docketing System Manual 
(providing process under which IJs must review oral decisions and 
transcripts through eTranscription); Operating Policies and Procedures 
Memorandum (``OPPM'') 84-9: Processing Hearing Transcriptions (Oct. 17, 
1984) (transcripts from USCIS). In light of established DOJ guidance, 
as well as the general presumption of administrative regularity, the 
Departments are confident that IJs will continue their work with 
professionalism and competency. See Chem. Found., 272 U.S. at 14-15; 
see also IJ Ethics and Professionalism Guide.
    Regarding comments on pretermission--that is, the practice of 
denying applications on the papers without hearing an applicant's 
testimony because the IJ concludes that the applicant has not made a 
prima facie case for the relief or protection sought--to the extent 
that commenters refer to pretermission of asylum applications under the 
separate Global Asylum rule, that rule is currently enjoined.\84\ The 
NPRM and this IFR do not rely on or involve that rule's discussion of 
pretermission of asylum applications. If commenters are alleging that 
the NPRM's IJ review proceedings would effectively result in 
pretermission, the Departments disagree but emphasize that, as 
described above in Section III of this preamble, this IFR revises the 
NPRM to provide streamlined section 240 proceedings with certain 
procedural requirements in new 8 CFR 1240.17 that include, in part, the 
submission of additional evidence. In addition, as provided in new 8 
CFR 1240.17(f)(4)(i)-(ii), an IJ may not determine the noncitizen's 
eligibility for relief in these proceedings without a hearing unless 
the noncitizen does not wish to testify or the IJ determines that the 
application can be granted. Accordingly, the Departments find that 
commenters' concerns with pretermission under the Global Asylum rule, 
which would have allowed an IJ to pretermit and deny an application, 
are addressed by the procedures set out in the IFR. The IFR does not 
disturb the evidentiary standard applicable in section 240 removal 
proceedings.
---------------------------------------------------------------------------

    \84\ See supra note 4 (discussing recent regulations and their 
current status).
---------------------------------------------------------------------------

    Comments: One commenter stated that the criteria for a noncitizen 
to supplement the record before the IJ--whether evidence is 
``duplicative'' or ``necessary''--is a ``fuzzy concept'' and others 
argued that the standard may implicate due process violations or cause 
delay. Commenters urged the Departments to describe clearly what 
evidence and testimony is ``necessary'' and ``not duplicative'' to 
develop the factual record and to specify that the threshold to meet 
these standards is low.
    For example, one commenter explained that ``duplicative'' can mean 
``effectively identical,'' and it can mean ``involving duplication'' to 
some lesser degree. In the latter sense, the commenter explained that 
it means ``unnecessarily doubled or repeated,'' which would likely be 
subjective. The commenter said the NPRM provides no basis for 
determining what is ``duplicative.''
    Likewise, commenters stated that the NPRM provides no guidance on 
what new testimony or documentation may be ``necessary.'' For example, 
one commenter stated that much evidence that is relevant or critical 
can be seen as not ``necessary'' to ``a reasoned decision.'' Moreover, 
commenters alleged that a strict reading of the ``necessity'' 
requirement could be mandated by future decisions of the Attorneys 
General and would turn IJs into reviewers of a record created by the 
asylum officer. Thus, commenters explained, the NPRM threatens to turn 
an immigration court proceeding in this context into one that is 
adversarial in name only, with a concomitant loss of faith in the 
integrity of the process.
    Commenters stated that, given that the rules of evidence do not 
apply in immigration court, the interpretation of the evidentiary 
standards would be left to each individual IJ. Commenters stated that, 
based on their experience, IJs would have widely different 
interpretations, leading to inconsistent application and confusion 
among applicants and counsel. Other commenters explained that the NPRM 
creates a new, unknown standard in immigration court proceedings rather

[[Page 18168]]

than relying on the longstanding discretionary authority of IJs to 
conduct and control the nature of the proceedings. One commenter found 
``enormous discrepancies'' among IJs' handling of discretionary 
motions.
    At least one commenter alleged that many courts along the Southwest 
border would be antagonistic to a discretionary motion like that 
contemplated by the NPRM. The commenter said the pressure, volume of 
cases, and speed required of IJs along the border make it far less 
likely that the IJs would look upon these motions favorably.
    Commenters stated that pro se individuals, in particular, may 
hesitate to submit additional evidence out of fear that it will be 
rejected as duplicative or unnecessary.
    Commenters stated that the NPRM lacked guidance for adjudicators on 
these terms and would lead to further delay because the parties would 
litigate the issue of admissibility of evidence. Commenters further 
stated that this litigation would also make judicial review of the 
determination to exclude evidence virtually impossible.
    Commenters stated that the NPRM does not specify what an asylum 
officer's decision must contain, such that an incomplete or undeveloped 
asylum application record might pass muster at the IJ level. One 
commenter stated that it is unclear how IJs ``will explain in court the 
standards for submitting additional testimony and documentation'' if 
IJs merely conduct a paper review ``solely on the basis of the record 
before the asylum officer.'' Thus, commenters urged the Departments to 
specify when and how IJs would provide this explanation to noncitizens 
and mandate that the IJ explain the standard in all cases, rather than 
on a discretionary basis.
    Response: As described above in Section III of this preamble, the 
Departments have decided to refer noncitizens whose applications for 
asylum are not granted by the asylum officer to streamlined section 240 
removal proceedings rather than implementing the IJ review proceedings 
proposed in the NPRM. As part of the streamlined section 240 
proceedings, the Departments are no longer proposing to apply the 
NPRM's evidentiary standard, but, instead, as provided in new 8 CFR 
1240.17(g)(1), will apply an evidentiary standard consistent with that 
applied in section 240 proceedings. See 8 CFR 1240.7(a); see also 
Matter of D-R-, 25 I&N Dec. 445, 458 (BIA 2011) (``In immigration 
proceedings, the sole test for admission of evidence is whether the 
evidence is probative and its admission is fundamentally fair.'' 
(quotation marks and citation omitted)); Matter of Interiano-Rosa, 25 
I&N Dec. 264, 265 (BIA 2010) (``[IJs] have broad discretion to conduct 
and control immigration proceedings and to admit and consider relevant 
and probative evidence.'').
    Parties to proceedings are familiar with this standard, and IJs 
have experience in its application. Accordingly, the Departments find 
that this change addresses commenters' concerns with the NPRM's 
evidentiary standard, including the potential for its inconsistent 
application, negative impacts on pro se individuals, the need for 
corresponding guidance for adjudicators, and the need for clarity 
regarding how noncitizens would be informed of the new standard. The 
IFR does not disturb the current evidentiary standard for section 240 
removal proceedings.
    Nevertheless, in response to commenters' concerns about IJs' 
inconsistent application of evidentiary standards and discretionary 
motions determinations, the Departments emphasize that IJs exercise 
independent judgment and discretion in adjudicating cases before them. 
See 8 CFR 1003.10(b); see generally IJ Ethics and Professionalism Guide 
(requiring IJs to, inter alia, be faithful to the law, maintain 
professional competence in the law, act impartially, and avoid actions 
that would create the appearance of violations of the law or applicable 
ethical standards). IJs will continue to interpret and apply applicable 
law and regulations, regardless of geographic location or caseload.
    In response to comments that the NPRM could result in the 
adjudication of allegedly incomplete or undeveloped asylum 
applications, the Departments first emphasize that asylum officers 
receive thorough training and regularly adjudicate affirmative 
applications for asylum. See 8 CFR 208.1(b), 208.14. Every case 
presents a unique set of facts, but asylum officers are trained to 
elicit ``all relevant and useful information bearing on whether the 
[noncitizen] can establish credible fear'' of persecution or a 
reasonable possibility of torture during the interview, which forms the 
basis of the decision. 8 CFR 208.30(d). Under the IFR in new 8 CFR 
1240.17(c), asylum officers also provide numerous documents to the IJ. 
Also, under the IFR, in credible fear determinations, the asylum 
officer must provide to the IJ a written record of the determination, 
including copies of the asylum officer's notes, a summary of the 
material facts as stated by the applicant, any additional facts relied 
on by the asylum officer, and the asylum officer's determination of 
whether, in light of such facts, the noncitizen established a credible 
fear of persecution or torture. 8 CFR 208.30(e)(1), (f), (g). Under new 
8 CFR 1240.17(c) and (e), and 8 CFR 208.9(f), from the Asylum Merits 
interviews, the asylum officer must provide to the IJ all supporting 
information provided by the noncitizen, any comments submitted by the 
Department of State or DHS, any other unclassified information 
considered by the asylum officer in the written decision, and a 
verbatim transcript of the interview. Notwithstanding these 
requirements, under the IFR in new 8 CFR 1240.17(f)(2)(i)(A), and (g), 
the noncitizen may submit additional evidence or testimony, consistent 
with the applicable evidentiary standard, to supplement the record 
during any subsequent IJ review. Considering all this information, the 
Departments disagree with the assertion that an IJ would make a 
decision based on an ``incomplete'' or ``undeveloped'' record, as 
commenters alleged.
    Comments: Multiple commenters said that the NPRM's process and 
evidentiary standards would allow IJs to review an interview transcript 
and concur with asylum officers' decisions to not grant asylum with 
little due process (so-called ``rubber-stamping'') and without 
meaningful participation by asylum seekers' counsel. Commenters alleged 
that the requirement that litigants make an initial showing that 
evidence is new and not duplicative would allow IJs to ``rubber-stamp'' 
the asylum officer's negative determination. One commenter was 
especially concerned that the IJ decisions would be based on ``severely 
truncated hearings,'' where asylum seekers do not have a right to 
counsel, are not allowed to present testimony or evidence, and where 
asylum officers take often incomplete and incorrect notes. Commenters 
stated that the NPRM contained no provision by which an applicant may 
challenge a negative decision by the IJ to exclude additional evidence, 
which could lead to a ``rubber-stamp'' of the underlying asylum 
officer's decision to not grant asylum. Similarly, one commenter said 
that the NPRM would essentially allow the alleged current ``disturbing 
practice'' of IJs ``rubber stamping'' credible fear reviews to ``bleed 
over'' into the merits process.
    Commenters stated that if the IJ listened to the recording of the 
interview before the asylum officer rather than waiting for a 
transcript of the interview, the entire process could be completed 
within a few days or

[[Page 18169]]

weeks of the asylum seeker's arrival in the United States, similar to 
other procedures under the prior Administration. Some commenters 
alleged that nothing in the NPRM would require an IJ who rejects 
testimony or other evidence to give a reasoned explanation for that 
decision, which could allow IJs who may have a propensity to deny 
claims the procedural opportunity to do so. Commenters said that IJs 
would have little incentive under the NPRM to permit inclusion of 
additional evidence and may opt to exclude evidence if there are any 
indicia that the facts were already in the administrative record. 
Commenters remarked that, as the NPRM acknowledges, IJs are 
overburdened with overflowing dockets. As a result, commenters argued, 
IJs would be inclined to deny requests for submission of additional 
evidence or testimony on even a vague finding that the submissions 
would be duplicative or unnecessary. One commenter said the NPRM would 
thus perpetuate what the commenter characterized as the deterioration 
of the immigration court system as a ``rubber-stamping tool'' for 
removal orders issued by DHS and upend the purpose of the courts.
    Commenters stated that applicants with additional evidence should 
not be hindered by evidentiary limitations, especially given that, as 
alleged by commenters, case completion quotas provide IJs with 
incentives to adjudicate claims as quickly as possible. Likewise, 
commenters said that IJ performance metrics compound concerns that IJs 
would have a disincentive to find a need for evidentiary hearings when 
asylum cases are not granted. Commenters said the performance metrics 
are deeply problematic because they create financial incentives for IJs 
to prize speed over fairness. Commenters stated that over 40 percent of 
IJs have been on the bench for fewer than five years, and many have 
backgrounds in criminal prosecution or the military and need to learn 
the increasingly complex procedural and substantive immigration rules 
on the job. The commenters said these relatively new IJs would be 
placed in a role of appellate review of decisions rendered by asylum 
officers who also will have been newly hired. This combination of fewer 
due process rights in eliciting testimony by new asylum officers with 
appellate-type review by relatively new IJs would not provide adequate 
protection to asylum seekers.
    Commenters stated that some IJs depart markedly from the average 
asylum grant rates in their own courts, rejecting more than 90 percent 
of asylum claims in non-detained cases. In addition, those commenters 
explained that IJs' asylum grant rates are significantly influenced by 
factors other than the merits of the cases, such as the gender and 
prior prosecutorial experience of the IJ. Commenters were therefore 
concerned that some IJs may likewise summarily or arbitrarily deny 
asylum applicants the opportunity to testify, thereby pretermitting 
their appeals.
    Commenters asserted that the evidentiary restrictions during IJ 
review are particularly problematic in light of alleged problems, based 
on political influence, with the country conditions information 
available to the asylum officers who would be tasked with making the 
record the IJ would review. In other words, at least one commenter 
stated, if applicants are denied a full and fair opportunity to present 
evidence that challenges the country conditions information underlying 
the asylum officer's decision to not grant asylum or protection, IJs 
may ``rubber-stamp'' decisions that are based on inaccurate information 
resulting from impermissible political considerations.
    Response: As described above, the IFR, in new 8 CFR 1240.17, 
revises the process so that noncitizens whose applications for asylum 
are not granted following the Asylum Merits interview are referred to 
streamlined section 240 removal proceedings, rather than implementing 
the novel IJ review procedure proposed by the NPRM. As part of this 
change, the Departments are no longer proposing evidentiary standards 
like those in the NPRM. See 8 CFR 1003.48(e)(1) (proposed); 86 FR 
46911, 46920. Rather, the IFR adopts an approach consistent with the 
current evidentiary standard for section 240 removal proceedings; 
subject to the applicable deadline in streamlined section 240 
proceedings, IJs may exclude additional evidence only if it is not 
relevant, probative, or timely or if its use is fundamentally unfair. 
In other words, unlike the NPRM, the IFR does not require the IJ to 
make a novel threshold determination regarding the need for the 
evidence. In addition, the noncitizen will have the privilege of being 
represented by counsel at no expense to the Government during 
proceedings before the IJ if the noncitizen chooses. INA 292, 8 U.S.C. 
1362.\85\ Further, unlike the NPRM, this IFR specifically contemplates 
that the IJ will, if necessary, conduct hearings to narrow the issues 
and take testimony or further evidence, as provided in new 8 CFR 
1240.17(f)(4). These features of streamlined section 240 removal 
proceedings preclude the possibility that an IJ would simply ``rubber-
stamp'' an asylum officer's asylum decision, as commenters alleged.
---------------------------------------------------------------------------

    \85\ To be sure, the NPRM proposed that noncitizens would have 
the same privilege. See 8 CFR 1003.12 (proposed), 1003.16; see also 
86 FR 46919.
---------------------------------------------------------------------------

    Regarding commenters' concerns with the process of IJs' credible 
fear reviews, the IFR returns the credible fear screening process to 
that which was in effect prior to the regulatory changes made between 
2018 and 2020. See generally 8 CFR 208.30. The DOJ regulations at 8 CFR 
1003.42 and 1208.30(g)(2) provide an extensive process through which an 
IJ reviews a negative credible fear determination. IJs exercise 
independent judgment and discretion and follow applicable laws and 
regulations in credible fear reviews, and they would continue to do so 
under this rule. See, e.g., IJ Ethics and Professionalism Guide 
(requiring IJs to, inter alia, be faithful to the law, maintain 
professional competence in the law, act impartially, and avoid actions 
that would create the appearance of violations of the law or applicable 
ethical standards).
    More specifically, the Departments reject commenters' contentions 
that IJs currently ``rubber-stamp'' asylum officer's negative credible 
fear determinations and that such practice would carry over into an 
IJ's review of an asylum officer's decisions under the NPRM or the IFR. 
Under 8 CFR 208.30(d)(4) of DHS's regulations, which the NPRM did not 
propose to amend, noncitizens may consult with a person or persons of 
their choosing before the interview, contrary to commenters' 
allegations that noncitizens have no right to counsel. Upon an exercise 
of USCIS's discretion, that person or persons may be present at the 
interview and may present a statement at the end of the interview. 8 
CFR 208.30(d)(4). Further, noncitizens may ``present other evidence, if 
available,'' see id., contrary to commenters' allegations that 
noncitizens may not present testimony or evidence. The Departments also 
disagree with commenters' allegations that asylum officers take ``often 
incomplete'' or ``incorrect'' notes. Asylum officers receive extensive 
training and possess expertise, see 8 CFR 208.1(b); INA 235(b)(1)(E), 8 
U.S.C. 1225(b)(1)(E), and the Departments are confident in the asylum 
officers' ability to carry out their duties in accordance with all 
applicable statutes and regulations. Further, this IFR provides that 
the record from the Asylum Merits interview will include a verbatim 
transcript of the interview before the asylum officer, obviating the 
need for IJs

[[Page 18170]]

to rely exclusively on asylum officers' notes.
    The Departments also disagree with commenters who recommended IJs 
review recordings of the Asylum Merits interviews instead of verbatim 
transcripts as a way to increase efficiency. The Departments prefer the 
review of transcripts considering their clarity, ease of use, and 
increased specificity in citations. Further, the Departments disagree 
that listening to a recording would save a significant amount of time 
compared to reviewing a transcript. For these reasons, the IFR includes 
the transcript alone in the record that is referred to the IJ for use 
in subsequent streamlined 240 removal proceedings.\86\
---------------------------------------------------------------------------

    \86\ While USCIS will have to record the USCIS interview in 
order to create a transcript of the interview, the Departments did 
not intend to imply in the NPRM that EOIR would receive a recording 
with the record in every case. The receipt of the recording would be 
redundant with the transcript and, as noted, more time consuming to 
review than a transcript.
---------------------------------------------------------------------------

    Although the Departments believe that this IFR addresses 
commenters' concerns about ``rubber-stamping'' because it provides for 
streamlined section 240 removal proceedings rather than the NPRM's IJ 
review procedure and associated standard for the submission of 
evidence, the Departments dispute commenters' allegations that IJs 
would reject evidence or refuse to hold an evidentiary hearing based on 
performance metrics or other bases unrelated to the specifics of an 
individual proceeding. IJs independently adjudicate each case by 
applying applicable law and regulations, not by considering performance 
metrics. 8 CFR 1003.10(b) (providing that IJs ``may take any action 
consistent with their authorities under the Act and regulations that is 
appropriate and necessary for the disposition of such cases''). In 
addition, EOIR no longer reviews IJ performance through individual 
judge performance metrics. IJs are held to high ethical standards in 
part to avoid impropriety or the appearance of impropriety, which would 
include deciding cases consistent with performance metrics rather than 
applicable law and regulations. See also IJ Ethics and Professionalism 
Guide (providing that IJs must be faithful to the law, maintain 
professional competence in the law, act impartially, and avoid actions 
that would create the appearance that the IJ is violating the law or 
applicable ethical standards); see also EOIR Policy Manual, Part II, 
ch. 1.3(c) (stating that IJs ``strive to act honorably, fairly, and in 
accordance with the highest ethical standards''). Likewise, the 
Departments do not share the commenters' concerns with IJs' 
professional experience or diverse backgrounds. IJs are selected on 
merit with baseline qualifications, including possession of a J.D., 
LL.M., or LL.B. degree; active membership in a State bar; and seven 
years of experience as a licensed attorney working in litigation or 
administrative law. IJs receive extensive training upon entry on duty, 
annual training, and periodic training on specialized topics as 
necessary. IJs are also expected to maintain professionalism and 
competence in the law.\87\ Likewise, the Departments reject commenters' 
implications that newly hired asylum officers are less competent or 
professional than IJs. As explained earlier in Section IV.B.2.a of this 
preamble, asylum officers are selected based on merit, receive 
extensive training, and possess expertise in determining eligibility 
for protection. The Departments are confident in asylum officers' 
ability to carry out their duties in accordance with all applicable 
statutes and regulations.
---------------------------------------------------------------------------

    \87\ See IJ Ethics and Professionalism Guide.
---------------------------------------------------------------------------

    The Departments disagree with commenters' use of asylum grant rates 
to imply that IJs with low grant rates make arbitrary decisions or are 
influenced by factors outside of the merits of the case. An individual 
IJ's grant rate may be affected by factors outside the IJ's control. 
For example, an IJ assigned to a detained docket will generally have a 
higher percentage of applicants who are ineligible for asylum due to 
criminal convictions compared with an IJ who is assigned to a 
nondetained docket. The Departments reiterate the ethical and 
professional standards to which IJs are held, discussed above, which 
would preclude arbitrarily or summarily denying noncitizens the 
opportunity to testify or considering improper factors in a case, as 
commenters alleged. IJs are required to adjudicate cases in an 
impartial manner based on their independent judgment and discretion, 
applying applicable law and regulations. 8 CFR 1003.10(b).
    Overall, commenters' accusations of bias or impropriety that would 
lead to due process violations are insufficient to ``overcome a 
presumption of honesty and integrity in those serving as 
adjudicators.'' Withrow v. Larkin, 421 U.S. 35, 47 (1975). The 
Departments are confident in the competency, integrity, and 
professionalism of IJs and asylum officers in providing due process of 
law to all noncitizens before them. Further, if a noncitizen believes 
that an IJ has acted improperly or otherwise prejudiced the proceeding, 
the noncitizen may appeal the IJ's decision to the BIA, 8 CFR 1240.15, 
and in turn appeal the BIA's decision to a Federal circuit court, INA 
242, 8 U.S.C. 1252. See also Avendano-Hernandez v. Lynch, 800 F.3d 
1072, 1075 (9th Cir. 2015) (remanding the case and stating that the IJ 
``exhibit[ed] some of the same misconceptions about the transgender 
community that [the noncitizen] faced in her home country'' by failing 
``to recognize the difference between gender identity and sexual 
orientation,'' and refusing to allow the use of female pronouns); see 
also Shahinaj v. Gonzales, 481 F.3d 1027, 1029 (8th Cir. 2007) 
(remanding the IJ's adverse credibility finding that was based in part 
on ``the IJ's personal and improper opinion [that the noncitizen] did 
not dress or speak like or exhibit the mannerisms of a homosexual''). 
In addition, individuals who believe that an IJ has engaged in judicial 
misconduct may submit a complaint to EOIR's Judicial Conduct and 
Professionalism Unit:

    Executive Office for Immigration Review, attn.: Judicial Conduct 
and Professionalism Unit, 5107 Leesburg Pike, Suite 2600, Falls 
Church, VA 22041, <a href="/cdn-cgi/l/email-protection#cda7b8a9a4aea4aca1e3aea2a3a9b8aeb98db8bea9a2a7e3aaa2bb"><span class="__cf_email__" data-cfemail="4a203f2e2329232b26642925242e3f293e0a3f392e2520642d253c">[email protected]</span></a>.

    The Departments disagree with commenters who broadly asserted that 
noncitizens should not be ``hindered'' by evidentiary limitations. 
Although the IFR does not adopt the NPRM's proposed evidentiary 
standard, the IFR includes an evidentiary standard consistent with that 
currently used in section 240 proceedings. See Nyama, 357 F.3d at 816 
(``The traditional rules of evidence do not apply to immigration 
proceedings . . . . `The sole test for admission of evidence is whether 
the evidence is probative and its admission is fundamentally fair.' '' 
(quoting Espinoza, 45 F.3d at 310)); Matter of Ramirez-Sanchez, 17 I&N 
Dec. at 505 (holding that evidence must be ``relevant and probative and 
its use must not be fundamentally unfair''). The IFR further provides, 
in new 8 CFR 1240.17(g)(2), that evidence filed after the applicable 
deadline may be considered if it could not reasonably have been 
obtained and presented before the deadline through the exercise of due 
diligence. While the bar for admitting evidence in immigration 
proceedings is relatively low, noncitizens have never had a wholly 
unrestricted right to present any and all evidence or testimony.
    Finally, the Departments also disagree with commenters' allegations 
that

[[Page 18171]]

country conditions information available to asylum officers is 
inaccurate, inappropriately politically influenced, or otherwise 
problematic. Federal Government country conditions reports, such as the 
U.S. Department of State country conditions reports, are longstanding, 
credible sources of information. See, e.g., Sowe v. Mukasey, 538 F.3d 
1281, 1285 (9th Cir. 2008) (``U.S. Department of State country reports 
are the most appropriate and perhaps the best resource for information 
on political situations in foreign nations.'' (quotation marks 
omitted)); Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 341 (2d 
Cir. 2006) (State Department country reports are ``usually the best 
available source of information on country conditions'' (quotation 
marks omitted)). Commenters have provided no reasoning beyond 
conclusory allegations that the country conditions information 
available to asylum officers is inaccurate or inappropriately 
politically influenced. Further, under the IFR, IJs will consider all 
relevant and probative evidence, consistent with the evidentiary 
standards in section 240 proceedings and subject to the applicable 
deadline. Thus, IJs may consider country conditions information in 
accordance with its probative value, which will vary by case, as well 
as evidence submitted by the noncitizen that challenges such country 
conditions information.
    Comments: Multiple commenters expressed concerns that limiting an 
asylum seeker's oral testimony to items that are not duplicative of the 
written application, on the belief that the written record would 
suffice for deciding the applicant's veracity, would violate the asylum 
seeker's due process rights.
    Commenters stated that it would be difficult for IJs to assess 
credibility issues through a transcript or videos, and commenters 
disagreed that IJs could review credibility issues de novo absent 
additional testimony. Instead, commenters asserted that live, in-person 
testimony is required to assess an applicant's demeanor, candor, and 
responsiveness to questions. Further, commenters cited Goldberg v. 
Kelly, 397 U.S. 254, 269 (1970), for the proposition that the right to 
present one's testimony is crucial ``where credibility and veracity are 
at issue.'' One commenter noted that, in such instances, Goldberg v. 
Kelly provides that a person ``must be allowed to state his position 
orally'' and ``written submissions are a wholly unsatisfactory basis 
for decision.'' Id. at 369. Accordingly, commenters stated that, to 
comport with due process, it is critical that IJs provide applicants 
with ample opportunity to present their case, including the chance to 
explain any perceived omissions or inconsistencies, before making 
credibility findings.
    Additionally, commenters emphasized that IJs have a duty to develop 
the record in immigration proceedings, for which the ability to 
personally examine the applicant is a crucial tool.
    Relatedly, commenters stated that, if represented, the applicant's 
counsel should be allowed to present and guide relevant, probative 
testimony because this form of examination most effectively elicits the 
noncitizen's factual basis for relief or protection. The commenters 
said that records from asylum interviews do not present all of the 
relevant facts as coherently as a direct examination by counsel who is 
familiar with the case. Moreover, commenters stated that during the 
course of testimony, a question from counsel or from the IJ could 
elicit an answer that unexpectedly gives rise to a new line of 
questioning or even a new legal theory of the case.
    Response: As discussed above in Section III of this preamble, the 
IFR provides that noncitizens whose applications are not granted by the 
asylum officer will be placed in streamlined section 240 removal 
proceedings instead of implementing the NPRM's IJ review procedure. In 
streamlined section 240 proceedings, the noncitizen is entitled to 
testify before the IJ if the noncitizen timely requests the opportunity 
to do so, unless the IJ determines that asylum may be granted without 
the need to hear additional testimony. However, under new 8 CFR 
1240.17(f)(2), and (f)(4)(i)-(ii), the IJ may forego a hearing and 
decide the case on the documentary record if (1) neither the noncitizen 
nor DHS has timely requested to present testimony under the pre-hearing 
procedures and DHS has not requested to cross-examine the noncitizen, 
or (2) the noncitizen elected to testify or provide evidence but the IJ 
determines that relief or protection may be granted without further 
proceedings and DHS has not requested to cross-examine the noncitizen. 
Additionally, noncitizens will have the privilege of representation at 
no expense to the Government, and, if the noncitizen is represented, 
the noncitizen's representative will be able to shape the course of 
direct examination. INA 240(b)(4), 8 U.S.C. 1229a(b)(4). Moreover, IJs 
will continue to have the authority to ``interrogate, examine, and 
cross-examine the [noncitizen] and any witnesses,'' thereby maintaining 
the IJ's ability to develop the record. INA 240(b)(1), 8 U.S.C. 
1229a(b)(1). Further, IJs will continue to assess a noncitizen's 
credibility, as set forth in section 240(c)(4)(C) of the Act, 8 U.S.C. 
1229a(c)(4)(C). Thus, the Departments believe that the changes made in 
this IFR, provided generally in new 8 CFR 1240.17, address commenters' 
concerns by preserving noncitizens' ability to testify before an IJ in 
support of their claims, while at the same time maintaining the 
efficiencies highlighted in the NPRM by establishing expedited 
procedural requirements for the timely resolution of noncitizens' 
proceedings.
    Comments: Commenters also stated that applicants must be given the 
opportunity to submit evidence, as needed, to develop their claims in 
the IJ review stage because the ability to present additional evidence 
before the IJ is crucial to ensuring due process for immigrants seeking 
protection.
    First, several commenters said that duplicative evidence is 
sometimes necessary to persuade an IJ. For example, commenters 
indicated that multiple reports of the same phenomena might persuade an 
IJ of the prevalence of an issue. Likewise, commenters said that some 
IJs may not be persuaded by a single piece of evidence, but duplicative 
evidence may satisfy the IJ or increase the evidentiary weight an IJ 
gives to an applicant's testimony.
    Similarly, several commenters said that the law accords greater 
deference to Government sources, such as State Department reports, and 
IJs may find other or contradictory evidence deserving of little 
evidentiary weight. Thus, commenters explained, while duplicative in a 
strict sense, filing several reports from different sources that 
similarly rebut the State Department's conclusions can be necessary to 
making a successful claim. However, under the NPRM, commenters asserted 
that IJs can exclude this evidence merely because it is facially 
duplicative without ever reaching the question as to whether it is 
necessary.
    Additionally, commenters pointed out that corroborating accounts of 
persecution, such as declarations from multiple witnesses about the 
same event, can often assist in showing the applicant's credibility and 
the severity of the persecution they suffered. Commenters also 
indicated that asylum adjudications may hinge on considering evidence 
in the aggregate, such as whether a series of incidents rises to the 
level of persecution, or whether evidence of similarly situated cases 
and country conditions cumulatively establish a likelihood of future 
harm to the applicant. Thus, commenters stated

[[Page 18172]]

that the NPRM creates the risk that IJs may erroneously reject evidence 
as ``duplicative'' when it is in fact critical to a cumulative 
analysis, noting that for the IJ, it is precisely the overwhelming 
nature of the evidence pointing toward one conclusion that makes it 
persuasive. Accordingly, commenters argued that the NPRM's restriction 
on duplicative evidence would make it impossible to prove, to the 
satisfaction of the adjudicator, many meritorious claims.
    Commenters also stated that, in some instances, an IJ may not be 
able to determine if new evidence or testimony is ``duplicative'' and 
``necessary'' until the hearing is concluded. According to commenters, 
questioning from counsel or from an IJ during seemingly duplicative 
testimony may elicit new information relevant to an asylum seeker's 
claim. Thus, commenters expressed concern that while the need for 
duplicative evidence might not become apparent until the hearing is 
concluded, the decision to exclude additional testimony and documentary 
evidence will have been made at the outset of the proceeding. As it is 
not always possible to predict what will be a central issue in a case, 
and as duplicative evidence can actually be necessary to meet the 
applicant's burden of proof, commenters believed that permitting 
duplicative evidence would not be ``inefficient.''
    Response: As discussed above in Section III of this preamble, the 
IFR provides that individuals whose applications are not granted by the 
asylum officer will be placed in streamlined section 240 removal 
proceedings rather than the NPRM's proposed IJ review procedure. As 
part of those streamlined section 240 proceedings, noncitizens may 
submit additional evidence before the IJ in support of their claims. 
Because these removal proceedings are governed by section 240 of the 
Act, 8 U.S.C. 1229a--subject to specific procedural requirements and 
timelines, as described above in Section III--noncitizens will be able 
to submit evidence in these proceedings, as provided in new 8 CFR 
1240.17(g)(1), and the IJ will only exclude such evidence if the IJ 
determines that the evidence is untimely, that it is not relevant or 
probative, or that its use is fundamentally unfair. See 8 CFR 
1240.7(a); see also Matter of D-R-, 25 I&N Dec. at 458 (``In 
immigration proceedings, the sole test for admission of evidence is 
whether the evidence is probative and its admission is fundamentally 
fair.'' (quotation marks omitted)); Matter of Interiano-Rosa, 25 I&N 
Dec. 264, 265 (BIA 2010) (``[IJs] have broad discretion to conduct and 
control immigration proceedings and to admit and consider relevant and 
probative evidence.''). In other words, the ability of noncitizens in 
these proceedings to introduce evidence or testimony will not hinge on 
the IJ's analysis of whether or not the evidence is duplicative of the 
record from the noncitizen's hearing before the asylum officer. 
Consistent with currently applicable evidentiary rules in section 240 
proceedings, noncitizens may instead submit evidence that commenters 
noted would otherwise be duplicative. Given the above, commenters' 
concerns about the evidentiary restrictions in the NPRM's proposed 
limited IJ proceedings are moot.
    Comments: Commenters expressed concerns that the NPRM would harm 
applicants who face unique hurdles during proceedings, including 
individuals who were unable to provide a complete record before the 
asylum officer due to trauma, lack an understanding of the process, are 
unrepresented, have language barriers, or are members of a vulnerable 
or marginalized population. Specifically, commenters were concerned 
with the NPRM's limitation that IJs only review the record created by 
the asylum officer and the NPRM's evidentiary standard that applicants 
can only submit ``non-duplicative'' evidence to the IJ. With so much at 
stake, commenters believed that these applicants should not be hindered 
by rules that limit their ability to fully present their claims.
    Commenters provided a wide range of reasons that the NPRM's 
evidentiary standards would particularly disadvantage pro se 
applicants. Commenters speculated that pro se individuals, particularly 
those without English language proficiency, may not be aware of the 
full scope of evidence they can provide before the asylum officer and 
that USCIS's traditional use of broad, open-ended questions may not be 
sufficient to elicit relevant information for the adjudication of an 
asylum claim. Similarly, commenters explained that those applicants who 
do not retain a lawyer prior to the Asylum Merits interview may lose 
their opportunity to develop the facts and law in their claim. 
Commenters also indicated that detained applicants frequently need time 
to contact family to support their legal claims; thus, commenters 
believed that the NPRM disproportionately disadvantages those without 
counsel in detention.
    Commenters also believed the NPRM would make it difficult for 
unrepresented, noncitizens without English language proficiency to 
examine the record and make their case to the IJ during the review 
process. According to one commenter, the record forwarded by the Asylum 
Office to the IJ for review will ``undoubtedly be in English,'' making 
it effectively impossible for applicants who are not represented and 
who do not read English to ascertain what is in the record, to make 
arguments about how the asylum officer erred, and to determine what 
additional information or evidence they possess and could provide to 
support their claim.
    Additionally, commenters stated that the NPRM did not account for 
language access issues, noting that when an applicant speaks a rare 
language or dialect, the Asylum Office frequently cannot find an 
interpreter, and this language gap frequently results in mistakes in 
the record. Given the heightened evidentiary standard for introducing 
new evidence into the record, commenters expressed concern that 
interpretation mistakes would be difficult to correct through the 
appeal process proposed by the NPRM.
    Commenters stated that the NPRM's evidentiary restrictions in IJ 
review proceedings would prejudice many unrepresented applicants 
because pro se individuals would be unable to comply with the pre-trial 
procedures requiring detailed justifications for the admission of 
proposed evidence. One commenter did not believe that having an IJ 
explain ``restrictive and vague standards'' to pro se applicants in 
court would be sufficient to apprise those applicants of the procedures 
they should follow to provide further relevant evidence to the court. 
Commenters argued that most applicants cannot be expected to meet these 
additional procedural burdens to submit evidence. Further, commenters 
stated that demanding that applicants meet additional evidentiary 
burdens before the IJ--especially if the applicant was not adequately 
represented when presenting the claim to the asylum officer--does not 
advance the fairness of the system. Moreover, commenters indicated that 
if the IJ needs to make a decision to admit new evidence or to allow 
further testimony based on a review of the evidence the applicant seeks 
to present, the NPRM added what is, in effect, a motion to reopen to 
every asylum claim, which may overly burden the finite legal services 
available to applicants.
    Additionally, commenters noted that some applicants suffer from 
cognitive or emotional issues that may prevent them from testifying 
effectively before the asylum officer or without a lengthy interview 
over the course of multiple

[[Page 18173]]

days or weeks. Commenters also noted that the ability to present new 
evidence is crucial in cases involving applicants who are members of 
the LGBTQ+ community because some applicants may not have ``come out'' 
yet to themselves or to their families when they arrive in the United 
States, or at the time of an asylum interview, given that the way an 
individual identifies may evolve over time. Similarly, commenters 
indicated that IJs may need more educational evidence about asylum 
claims for transgender and gender nonconforming applicants or 
applicants who are living with HIV, stating that the time to acquire 
evidence, to obtain legal representation, and to present testimony, 
including expert testimony, are particularly crucial in such cases.
    Response: As discussed above in Section III of this preamble, the 
IFR provides that noncitizens whose asylum applications are not granted 
by an asylum officer will be placed in streamlined section 240 removal 
proceedings rather than finalizing the NPRM's proposed IJ review 
procedure. Because section 240 proceedings provide noncitizens with 
procedural safeguards, including the right to counsel at no expense to 
the Government and the ability to reasonably present their case, the 
Departments believe that this shift largely addresses commenters' 
concerns with the NPRM's effect on underrepresented, non-English 
speaking, traumatized, and other marginalized noncitizens. In response 
to commenters' concerns related to unrepresented individuals appearing 
before an asylum officer for an Asylum Merits interview, the 
Departments note that, as explained earlier in this IFR, USCIS asylum 
officers have experience with (and receive extensive training on) 
eliciting testimony from applicants and witnesses and providing 
applicants the opportunity to present, in their own words, information 
bearing on eligibility for asylum. Asylum officers also are trained to 
give applicants the opportunity to provide additional information that 
may not already be in the record so that the asylum officer has a 
complete understanding of the events that form the basis for the 
application. See supra Section IV.D.5 of this preamble. With respect to 
commenters' concerns about interpreters for Asylum Merits interviews, 
the Departments note that USCIS has existing contracts with telephonic 
interpreters to provide interpretation for credible fear screening and 
affirmative asylum interviews, and thus has extensive experience 
providing contract interpreter services. USCIS contractors must provide 
interpreters capable of accurately interpreting the intended meaning of 
statements made by the asylum officer, applicant, representative, and 
witnesses during interviews or hearings. The USCIS contractor will 
provide interpreters who are fluent in reading and speaking English and 
one or more other languages. The one exception to the English fluency 
requirement involves the use of relay interpreters in limited 
circumstances at USCIS's discretion. A relay interpreter is used when 
an interpreter does not speak both English and the language the 
applicant speaks, such as a rare language or dialect. See supra Section 
IV.D.5 of this preamble. As explained earlier in this IFR, USCIS will 
arrange for the assistance of an interpreter in conducting the Asylum 
Merits interview, and if an interpreter is unavailable, will attribute 
any delays to USCIS for the purpose of employment authorization 
eligibility, as described in new 8 CFR 208.9(g)(2). Thus, USCIS will 
ensure that there is clear communication among the various individuals 
participating in any Asylum Merits interview.
    The Departments recognize that unrepresented noncitizens may have 
difficulties identifying errors in the asylum officer's decision as 
well as making legal arguments before the IJ regarding those errors. 
Accordingly, under the IFR, unrepresented noncitizens are not required 
to submit a written statement to the IJ identifying errors in the 
asylum officer's decision; instead, under new 8 CFR 1240.17(f)(2), the 
IJ will conduct a status conference to narrow the issues, determine the 
noncitizen's position, and ascertain whether a merits hearing will be 
needed. At this status conference, the noncitizen will state whether 
the noncitizen intends to testify, identify any witnesses the 
noncitizen intends to call in support of the noncitizen's application, 
and provide any additional documentation in support of the noncitizen's 
application. Id. In addition, individuals who speak a language other 
than English will be provided an interpreter.
    Further, should any noncitizen--including unrepresented or other 
vulnerable noncitizens--wish to provide additional testimony and 
evidence before the IJ, the respondent may do so under the IFR, as 
provided in new 8 CFR 1240.17(f)(2)(i), without needing to satisfy the 
kind of threshold requirements proposed in the NPRM. As previously 
stated, the only limitation on the admission of evidence in the IFR's 
streamlined section 240 proceedings is that the IJ must exclude 
evidence if it is untimely, not relevant or probative, or if its use is 
fundamentally unfair, which is consistent with the standard evidentiary 
rules in all other section 240 proceedings. Matter of D-R-, 25 I&N Dec. 
at 458 (``In immigration proceedings, the sole test for admission of 
evidence is whether the evidence is probative and its admission is 
fundamentally fair.'' (quotation marks omitted)).
    Finally, regarding commenters' concerns over the ability of 
noncitizens with competency concerns to testify effectively in a short 
time period, the Departments note that the IFR, in new 8 CFR 
1240.17(k)(6), excepts noncitizens who have exhibited indicia of 
incompetency. These noncitizens would instead be placed in ordinary 
section 240 removal proceedings.\88\
---------------------------------------------------------------------------

    \88\ In addition, EOIR will provide a qualified representative 
through the EOIR National Qualified Representative Program 
(``NQRP'') to a respondent who is found to be incompetent to 
represent themselves in immigration proceedings and who is both 
unrepresented and detained.
---------------------------------------------------------------------------

    Thus, the Departments believe that the IFR adequately responds to 
commenters' concerns by placing all applicants who are not granted 
asylum following an Asylum Merits interview into streamlined section 
240 removal proceedings, thereby providing additional procedural 
protections and safeguards, and ensuring due process. See Hussain v. 
Rosen, 985 F.3d 634, 644 (9th Cir. 2021) (``[D]ue process has been 
provided whenever a[ noncitizen] is given a full and fair opportunity 
to be represented by counsel, to prepare an application for . . . 
relief, and to present testimony and other evidence in support of the 
application.'' (quotation marks omitted)).
    Comments: Commenters stated that, contrary to the Departments' 
goals, the NPRM's proposed evidentiary requirements would result in a 
less efficient and more burdensome adjudicatory system. For example, 
commenters stated that, in addition to providing evidence, applicants 
and counsel would have to proffer each piece of evidence, which would 
increase the time and cost of proceedings. Commenters stated that, 
although the NPRM provides for the possibility of supplementing the 
record, the NPRM frames it as the exception for the sake of judicial 
efficiency and places a new burden on the applicant to prove that any 
new evidence is necessary for the case.
    Commenters said it would be impossible to gather the relevant 
evidence needed and to prepare clients for testimony in such a short 
time frame. Commenters said applicants often need

[[Page 18174]]

to gather evidence from their home countries, which could not be 
obtained in only a few weeks, especially for clients who are detained. 
Some commenters similarly said it is well established under U.S. law 
that asylum seekers often flee for their lives without the ability to 
first collect documentation to support their claims, and it can be 
difficult, if not impossible, for asylum seekers or their 
representatives to gather evidence from family and friends in their 
country of origin. It is thus unreasonable to expect that asylum 
seekers will present all their evidence at a streamlined hearing before 
an asylum officer, thus leading to an incomplete record for IJ review. 
Commenters stated that, to fulfill their ethical duties to their 
clients, legal advocates would have to immediately seek to fill the 
inevitable evidentiary gaps in the record, and then prepare written 
motions seeking to admit that evidence and seeking a full individual 
merits hearing.
    Commenters said the NPRM's evidentiary restrictions would add 
challenges for an IJ to conduct meaningful de novo review of an appeal. 
Commenters stated IJs could instead conduct their review directly in 
court, without relying on proceedings with the asylum officer, and with 
better results because the IJ would be able to make a credibility 
assessment of the applicant, as well as any witnesses. Some commenters 
remarked that the majority of claims not granted by an asylum officer 
would end up in immigration court, and, under the NPRM, IJs would be 
flooded with requests to present new evidence and to grant individual 
hearings.
    Commenters wrote that, if the IJ were to grant a motion to allow 
testimony and additional evidence, the proposed regulation would have 
failed to save any time or expense either to noncitizens or EOIR, 
because the case would then proceed in immigration court just as an 
affirmative case that is referred to court does now. On the other hand, 
if the IJ were to reject an applicant's additional testimony or other 
evidence, then the applicants would almost certainly file an appeal.
    Commenters expressed concern that judicial review of the NPRM's 
evidentiary restrictions could be limited and inefficient in practice. 
For example, if the IJ does not provide a reasoned explanation for the 
rejection (which the proposed NPRM does not require), a court of 
appeals would be highly likely to remand the case to the BIA, with a 
further remand to the IJ, because judicial review of the IJ's action 
would be nearly impossible without such an explanation. Commenters 
similarly stated that a decision by the IJ to reject additional 
testimony or documents would not require specific reasons, making 
judicial review of the determination that the evidence is not necessary 
or would be duplicative virtually impossible. Commenters stated that 
denials of requests to present additional evidence would lead to an 
increase in interlocutory appeals to the BIA and could lead to 
additional rounds of Federal circuit court appeals as asylum seekers 
challenge the sufficiency of the immigration court record. In addition, 
commenters stated, many Federal courts place onerous exhaustion 
requirements on petitions for review of BIA decisions, and some courts 
even suggest that noncitizens must seek reconsideration to point out 
ignored arguments or improper legal approaches before having those 
arguments considered on appeal. As a result, commenters stated that the 
NPRM's procedures, which were designed to be efficient, would cause 
significant inefficiencies on the back end by forcing applicants to 
file motions to reconsider before the immigration court and the BIA.
    Response: As described above in Section III of this preamble, the 
IFR revises the process in new 8 CFR 1240.17(a) and (b), so that 
noncitizens whose applications for asylum are adjudicated but not 
granted by an asylum officer are referred to streamlined 240 
proceedings through the issuance of an NTA, rather than seeking IJ 
review through the procedure proposed by the NPRM. As part of this 
change, the Departments are also removing the evidentiary standards 
proposed by the NPRM. See 8 CFR 1003.48(e)(1) (proposed); 86 FR 46911, 
46920. Instead, as provided in new 8 CFR 1240.17(g)(1), the IFR affirms 
that noncitizens in the streamlined 240 proceedings may submit 
additional evidence to the IJ consistent with the traditional 
evidentiary standard applied in 240 proceedings. With this change, the 
IFR does not include those procedural requirements that commenters were 
concerned would create inefficiencies.
    Specifically, unlike what was proposed in the NPRM, the IFR does 
not require the noncitizen to demonstrate that any desired new evidence 
or testimony is non-duplicative and necessary or require the IJ to make 
a threshold determination that the evidence satisfies that standard. 
Because the noncitizen may submit evidence during streamlined section 
240 proceedings, any delay in the availability of evidence during the 
asylum officer review, and any corresponding gap in the record, may be 
addressed before the IJ. The lack of an additional, novel evidentiary 
standard reduces the likelihood of appeals and subsequent litigation, 
identified by the commenters, surrounding the submission of evidence.
    In addition, given that the IFR is consistent with the longstanding 
evidence standard used in section 240 proceedings, the Departments do 
not believe that the IFR will have a chilling effect on the 
availability of judicial review regarding an IJ's evidentiary 
determinations. The IFR does not amend a noncitizen's right to appeal a 
decision, in accordance with the statutes and regulations. See 8 CFR 
1003.3, 1003.38.
    Comments: Commenters stated that while the NPRM's proposed ``non-
duplicative'' and ``necessary'' standard for the submission of new 
evidence may create more efficiency, it is inappropriate because it (1) 
reverses Congress's original intent to protect asylum seekers from 
expedited removal and give them sufficient time after their initial 
arrival in the United States to prepare an asylum application; (2) 
violates international obligations to prevent the refoulement of 
genuine refugees; and (3) undermines the United States' commitment to 
asylum protection and the preservation of human rights. Commenters 
stated that the proposed restriction on new evidence in the proposed IJ 
review proceedings would be fundamentally unfair and violate both U.S. 
asylum law and the Refugee Convention and Protocol. Similarly, 
commenters stated that the NPRM's evidentiary restrictions, if adopted, 
conflict with the statutory and regulatory affirmative duty of IJs to 
fully develop the record.
    Response: As described above in Section III of this preamble, the 
IFR revises the process in new 8 CFR 1240.17(a) and (b) to provide that 
noncitizens whose applications for asylum are not granted by an asylum 
officer are referred to streamlined section 240 removal proceedings 
through the issuance of an NTA, rather than seeking IJ review through 
the procedure proposed by the NPRM. As part of this change, the 
Departments are also removing the ``non-duplicative'' and ``necessary'' 
evidentiary standards proposed by the NPRM. See 8 CFR 1003.48(e)(1) 
(proposed); 86 FR 46911, 46920. Instead, the IFR affirms that 
noncitizens in streamlined section 240 removal proceedings may submit 
additional evidence to the IJ, as provided in new 8 CFR 1240.17(g)(1), 
consistent with the traditional evidentiary standard application in 240

[[Page 18175]]

proceedings. This change addresses commenters' concerns that the NPRM's 
evidentiary standard violates congressional intent and the United 
States' international obligations.
    Similarly, the IFR's changes address commenters' concerns regarding 
IJs' duty to develop the record. Unlike the proposal in the NPRM, the 
IFR specifically contemplates, in new 8 CFR 1240.17(f)(1) and (2), the 
IJ conducting a master calendar hearing in all cases, followed by a 
status conference to discuss the noncitizen's claim and narrow the 
issues. Overall, IJs will continue to exercise independent judgment and 
discretion in accordance with the case law, statutes, and regulations 
to decide each case before them. See 8 CFR 1003.10(b).
    Comments: Commenters suggested numerous alternative formulations 
regarding the NPRM's proposed evidentiary standard for IJ review 
proceedings. Some commenters proposed that the standard for 
introduction of new evidence before the IJ should be lower, stating 
that a low threshold will ensure that newly-developed evidence and any 
evidence the asylum officer erroneously failed to include in the record 
is considered in immigration court. Commenters stated that lowering the 
evidentiary threshold would still provide improved efficiency because 
IJs would still only hear new evidence, decreasing the amount of time 
spent reviewing each case and helping to stem the growth of EOIR's case 
backlog.
    Other commenters similarly argued that, if the proposed process 
cannot be amended to guarantee section 240 removal proceedings for 
asylum seekers, the Departments should allow applicants to freely 
present evidence and testimony during the IJ review proceedings.
    Commenters also suggested changes that they stated would better 
align the procedures for these review proceedings with international 
law and international procedures. First, commenters stated that the 
Departments could follow the example set by the United Nations 
Committee Against Torture and require an explanation for late 
submission, with a presumption in favor of accepting the explanation 
and admitting the evidence. Second, commenters stated that the UNHCR 
urges states to consider all available evidence to meet their 
obligations under international law. Commenters noted that a more 
lenient evidentiary standard would better align with the United States' 
obligations under the Refugee Protocol, including ensuring that 
adjudicators consider all evidence that could support a claim, even 
when only submitted on appeal, and that the unique realities implicated 
in adjudicating international protection claims require flexibility.
    Response: As explained above in Section III of this preamble, under 
the IFR in new 8 CFR 1240.17(a) and (b), if the application for asylum 
is adjudicated but not granted by the asylum officer, DHS will issue an 
NTA and refer the applicant to streamlined section 240 removal 
proceedings before an IJ. Because the Departments are not pursuing the 
proposed IJ review procedure, including the proposed limitations on new 
evidence, the Departments need not further respond directly to 
commenters' suggestions for how those proceedings could have been 
improved. Further, the Departments believe that the change in the IFR 
to streamlined 240 proceedings ultimately addresses commenters' 
concerns, as noncitizens will have the opportunity to address any 
perceived errors in the asylum officer's written decision, submit new 
evidence without regard to the evidentiary limitations proposed in the 
NPRM, and testify before the IJ.
    Comments: Commenters expressed concern that the NPRM would 
essentially give the IJ an appellate review role but would not provide 
rights for noncitizens or their counsel to address any errors in the 
asylum officer's decision. Specifically, commenters stated, the NPRM 
does not contain any information about whether the IJ would issue a 
briefing schedule, whether the parties would appear before the IJ for a 
hearing, or whether it would be incumbent on the noncitizen to convince 
the IJ that further legal argument is necessary in the case. Other 
commenters were concerned that the NPRM did not provide sufficient 
guidance as to the structure of the hearing before an IJ.
    Response: As part of the shift from the NPRM's proposed IJ review 
procedure to streamlined section 240 removal proceedings, this IFR 
contains detailed instructions regarding the mechanics of these 
proceedings before the IJ, including a requirement that IJs hold a 
status conference and afford the parties an opportunity to make 
additional legal argument. These provisions are designed to ensure that 
these proceedings are adjudicated efficiently while at the same time 
responding to commenters' interest in having more procedural details 
specified in the regulation. Specifically, under new 8 CFR 1240.17(b) 
and (f), the IJ will conduct at least an initial master calendar 
hearing in all cases and will also conduct a status conference and 
possibly receive written statements to narrow the issues. Under new 8 
CFR 1240.17(f)(2), the noncitizen shall describe any alleged errors or 
omissions in the asylum officer's decision or the record of proceedings 
before the asylum officer and provide any additional documentation in 
support of the applications. See 8 CFR 1240.17(f)(2)(i)(A)(1)(ii)-
(iii). If, under new 8 CFR 1240.17(f)(4), the IJ determines that the 
application cannot be granted on the documentary record and the 
noncitizen has elected to testify or DHS has elected to cross-examine 
the noncitizen or present testimony or evidence, the IJ will hold an 
evidentiary hearing.
    Comments: Commenters further indicated that the NPRM does not 
require the Departments to inform the noncitizen or their counsel that 
the case is being reviewed by an IJ.
    Response: The Departments disagree with commenters' concerns on 
this point because, under the NPRM, the case would only be reviewed by 
an IJ if the noncitizen or their counsel first requested such review. 
Nevertheless, the Departments emphasize that any concerns about the 
provision of notice regarding the IJ review are addressed by this IFR. 
Under new 8 CFR 1240.17(b), a noncitizen whose application for asylum 
is not granted following an Asylum Merits interview will receive notice 
about the IJ proceedings, because DHS will serve an NTA on all such 
individuals in order to initiate the section 240 removal proceedings. 
See also INA 239(a)(1), 8 U.S.C. 1229(a)(1).
    Comments: Commenters stated that, while a verbatim transcript of 
the Asylum Merits interview will be provided to the IJ, there is no 
indication that the noncitizen will have access to the audio recording 
of proceedings with the asylum officer to review for interpretation 
errors.
    Response: The Departments intend to make available a process by 
which parties to EOIR proceedings under 8 CFR 1240.17 will be able to 
timely review, upon request, the recording of the USCIS Asylum Merits 
interview. In addition, noncitizens should follow EOIR's procedures to 
obtain access and copies of their immigration records after cases have 
been docketed with the immigration courts.
    Comment: Another commenter stated that the NPRM is silent as to 
whether a noncitizen's motion to present further evidence to the IJ 
will be considered applicant-caused delay for purposes of the EAD clock 
and urged the Departments not to penalize noncitizens in this way for 
moving to include further evidence that would be

[[Page 18176]]

necessary to a fair adjudication of their claim.
    Response: The Departments understand asylum applicants' desire to 
obtain EADs, but neither the NPRM nor this IFR amends DHS's procedures 
pertaining to the issuance of EADs. Accordingly, any delay attributable 
to an applicant, including a continuance to obtain evidence sought in 
immigration court, will be considered an applicant-caused delay for 
purposes of EAD eligibility just as it would under the status quo.
    Comments: Commenters also expressed concerns that the NPRM ``ties 
the hands'' of the Government and that these asylum adjudications will 
be susceptible to fraudulent and frivolous claims. Commenters pointed 
out that the NPRM requires DHS to proffer evidence or testimony for an 
admissibility ruling but does not provide a clear opportunity for DHS 
to cross-examine noncitizens regarding evidence the noncitizens may 
have relied on during their interviews with asylum officers.
    Response: The Departments disagree with any allegation that this 
rule would increase fraudulent asylum applications. First, all asylum 
applications submitted to USCIS for initial adjudication by the asylum 
officer will be subject to the consequences of filing a frivolous 
application. 8 CFR 208.3(c); see also INA 208(d)(4), 8 U.S.C. 
1158(d)(4). Second, although the NPRM would have required both parties 
to make new threshold evidentiary showings in order to submit 
additional testimony or evidence before the IJ, the IFR, in new 8 CFR 
1240.17(f)(2)(ii) and (f)(3), provides DHS with an explicit opportunity 
in all cases to respond to any new argument or evidence by the 
noncitizen, call witnesses, and submit additional documentation, 
including documentation for rebuttal or impeachment purposes. In 
addition, both the NPRM and IFR in 8 CFR 208.9(c) provide DHS the 
opportunity to address credibility concerns with the applicant during 
the asylum officer hearing. Although the hearing before the asylum 
officer is nonadversarial, the asylum officer, a DHS employee, has the 
authority to ``present evidence, receive evidence, and question the 
applicant and any witnesses'' during the interview. Id. Accordingly, 
the IFR maintains certain procedures proposed in the NPRM and provides 
additional procedures that are responsive to commenters' concerns.
c. Immigration Judge's Discretion To Vacate Asylum Officer's Removal 
Order
    As discussed below, commenters opposed the limitation on 
noncitizens' ability to seek other forms of relief or protection beyond 
asylum, withholding of removal, or protection under the CAT in the 
proposed IJ review proceedings unless the noncitizen files a motion to 
vacate the removal order entered by the asylum officer and the IJ 
grants that motion as a matter of discretion. See 8 CFR 1003.48(d) 
(proposed).
    Comments: Commenters opposed the limitation on noncitizens' ability 
to seek other forms of relief or protection beyond asylum, withholding 
of removal, or protection under the CAT in the proposed IJ review 
proceedings unless the noncitizen files a motion to vacate the removal 
order entered by the asylum officer and the IJ grants that motion as a 
matter of discretion. See 8 CFR 1003.48(d) (proposed).
    Commenters pointed out that noncitizens frequently apply for other 
forms of immigration relief, such as Special Immigrant Juvenile 
classification, T nonimmigrant status, or U nonimmigrant status 
concurrently with their applications for asylum, withholding, and 
protection under the CAT, and expressed a range of concerns that the 
rule would limit the ability of noncitizens to pursue these types of 
statutorily-available statuses in the proposed limited IJ review 
proceedings, which commenters stated was contrary to congressional 
intent to provide other forms of relief or protection.
    First, commenters said that the NPRM's proposed procedure for a 
discretionary motion to vacate a removal order and transfer the 
noncitizen to section 240 proceedings is insufficient and that the NPRM 
would effectively cut off access to these remedies for vulnerable 
applicants. For example, commenters speculated that unrepresented or 
child applicants would be unable to meet the procedural requirements 
for filing the proposed motion, such as a showing of prima facie 
eligibility. Commenters also noted that some forms of relief are much 
harder to seek if the applicant is removed than they would be if the 
applicant could have sought them during the proceedings before the IJ. 
For example, it could be difficult to confer with an attorney with the 
relevant expertise while abroad.
    Second, commenters found the discretionary motion requirement 
inefficient. Commenters noted that applicants who seek collateral 
relief before USCIS, such as T or U nonimmigrant status, often seek 
administrative closure or termination of the immigration court 
proceedings while those applications are adjudicated. Because these 
cases are then off the IJ's docket, administrative closure or 
termination in these cases serves the stated goal of efficiency in 
immigration proceedings, but the NPRM would not allow for this 
efficiency.
    Third, commenters noted that the rule would effectively prevent 
individuals who become eligible for other relief during appeal from 
seeking it because they would not have sought to have the case 
transferred to section 240 proceedings in a timely manner. Commenters 
asserted that the NPRM provides no justification for this punitive and 
burdensome change in opportunity for an asylum applicant whose case 
originated in credible fear screening to seek other relief for which 
they may become eligible while the case is on appeal.
    Finally, commenters further stated that limiting or denying access 
to all forms of complementary protection conflicts with international 
standards.
    Response: As explained above in Section III of this preamble, the 
Departments are not adopting the IJ review procedure proposed in the 
NPRM; instead, this IFR provides that noncitizens whose applications 
for asylum are not granted by an asylum officer will be issued an NTA 
and referred to an IJ for further review of their applications in a 
streamlined section 240 removal proceeding. Under the new 8 CFR 
1240.17(k)(2), noncitizens who provide evidence of prima facie 
eligibility for forms of relief or protection other than asylum, 
withholding of removal, protection under the CAT, and voluntary 
departure and who either seek to apply or have applied for such relief 
or protection will be exempted from the timelines applicable in these 
streamlined proceedings. The IJ will then consider the noncitizen's 
eligibility for relief as in section 240 proceedings generally. See, 
e.g., 8 CFR 1240.1(a)(1)(ii) (providing the IJ with the authority to 
determine a wide range of applications for relief or protection). 
Further, there will no longer be an intervening requirement for the 
noncitizen to file a discretionary motion to vacate the asylum 
officer's removal order and for the IJ to grant such a motion before 
the noncitizen may seek additional forms of relief or protection. 
Instead, under new 8 CFR 1240.17(k)(2), noncitizens who produce 
evidence of prima facie eligibility and submit or intend to submit an 
application or petition for another form of relief or protection will 
be exempt from the streamlined

[[Page 18177]]

procedure set out in the IFR. Accordingly, the shift to streamlined 
section 240 proceedings addresses commenters' concerns about the motion 
process and limitation on the available forms of relief or protection 
for noncitizens in these proceedings.
    Comments: Commenters were concerned that the proposal to require a 
motion for the IJ to vacate the removal order is a new process that 
will waste Government resources by adding another motion for IJs to 
review and that it would likely generate additional rounds of appeals. 
Commenters stated that it would be more efficient to instead allow an 
IJ to decide the entire matter in front of them without being forced to 
ignore or exclude other information that would show removal is 
unwarranted.
    Similarly, rather than a process that requires the applicant to 
identify other grounds of immigration eligibility beyond the three 
enumerated in 8 CFR 1003.48(a), as set out in the NPRM, commenters 
argued that it would be fairer and more efficient if the asylum officer 
and the IJ could inquire about all possible grounds during their 
respective hearings. Commenters further suggested that the Departments 
revise the NPRM to have the asylum office refer all cases not granted 
asylum to section 240 removal proceedings.
    Response: The Departments believe that these commenter concerns 
will be addressed by this IFR, which establishes that noncitizens who 
are not granted asylum after an Asylum Merits interview will be placed 
into streamlined section 240 removal proceedings, rather than the IJ 
review proceedings proposed by the NPRM. Under the IFR, asylum officers 
will not issue removal orders that would need to be vacated by the IJ. 
Rather, a noncitizen will not be ordered removed until after the IJ has 
reviewed the asylum officer's decision and concluded that the 
noncitizen does not warrant asylum.\89\ Additionally, the noncitizen 
need not affirmatively request or seek review of the asylum officer's 
decision. Rather, under new 8 CFR 1240.17(a) and (b), if the asylum 
officer does not grant asylum, DHS will serve the applicant with an NTA 
and initiate a streamlined section 240 removal proceeding by filing the 
NTA with the immigration court. Further, just as in all proceedings 
governed by section 240 of the Act, 8 U.S.C. 1229a, noncitizens may 
seek other forms of relief or protection, and the IJ will consider 
additional possible grounds for relief or protection beyond asylum, 
withholding of removal, and protection under the CAT. See 8 CFR 
1240.11(a)(2) (``The immigration judge shall inform the [noncitizen] of 
his or her apparent eligibility to apply for any of the benefits 
enumerated in this chapter and shall afford the [noncitizen] an 
opportunity to make application during the hearing . . . .''). Further, 
under new 8 CFR 1240.17(k)(2), the proceedings for noncitizens who 
apply for other forms of relief or protection and produce evidence of 
prima facie eligibility will not be subject to the same expedited 
procedures detailed in this IFR for these proceedings generally.
---------------------------------------------------------------------------

    \89\ A respondent who fails to appear for their hearing, 
however, may be ordered removed in absentia for failure to appear. 
See INA 240(b)(5)(A), 8 U.S.C. 1229a(b)(5)(A). As discussed above in 
Section III of this preamble, under new 8 CFR 1240.17(d), if the 
asylum officer had determined that a respondent who fails to appear 
before the IJ was eligible for statutory withholding of removal or 
protection under the CAT, the IJ will issue an in-absentia removal 
order and generally will give effect to protection for which the 
asylum officer found the respondent eligible, unless DHS makes a 
prima facie showing, through evidence that specifically pertains to 
the respondent and was not in the record of proceedings for the 
USCIS Asylum Merits interview, that the respondent is not eligible 
for such protection.
---------------------------------------------------------------------------

    Comments: Commenters expressed concerns that the NPRM's requirement 
for applicants to file a motion before they may seek additional forms 
of relief or protection would prejudice noncitizens who are without 
counsel or do not speak English because these noncitizens would likely 
be unaware of their eligibility for additional forms of relief or 
protection, would be unaware of the option to file a motion for 
vacatur, or would not realistically be able to file such motions. 
Specifically, at least one commenter argued that the NPRM would lead to 
due process violations by denying noncitizens the right to seek relief 
or protection for which they might be eligible. Similarly, commenters 
argued that the NPRM's time and number limitations on motions for 
section 240 removal proceedings raise due process concerns for 
noncitizens with disabilities or PTSD, or those who speak rare 
languages.
    Commenters further expressed concern that pro se individuals would 
be particularly harmed by the NPRM's rules for the motion to vacate. 
For example, one commenter noted that a pro se noncitizen who 
previously moved unsuccessfully to vacate with insufficient evidence or 
argument would be precluded from filing any additional evidence or an 
additional motion, even if the noncitizen later obtained the help of an 
attorney or representative who is able to show prima facie eligibility 
for asylum or protection. Instead, commenters suggested that asylum 
applicants should be allowed to make more than one motion to show they 
are eligible for a different form of relief or protection. Commenters 
asserted that this change will not significantly impact the efficiency 
of IJ review because most asylum seekers requesting further review do 
not usually have a claim to a different form of relief from removal.
    Response: The IFR's changes from the NPRM address commenter 
concerns about the impact of the motion to vacate requirement on pro se 
and non-English speaking noncitizens. Specifically, as discussed 
elsewhere, the IFR establishes that USCIS will affirmatively refer all 
applicants whose applications are not granted by the asylum officer to 
streamlined section 240 removal proceedings for adjudication by an IJ. 
Adjudication by the IJ is automatic upon DHS's filing of the NTA with 
the immigration court. Additionally, as in all proceedings governed by 
section 240 of the Act, DOJ's regulations allow noncitizens to seek 
other forms of relief or protection, without first filing a motion, and 
the IJ will consider additional possible grounds for relief or 
protection beyond asylum, withholding of removal, and protection under 
the CAT. See 8 CFR 1240.11(a)(2) (``The immigration judge shall inform 
the [noncitizen] of his or her apparent eligibility to apply for any of 
the benefits enumerated in this chapter and shall afford the 
[noncitizen] an opportunity to make application during the hearing . . 
. .''); see also Quintero, 998 F.3d at 623-24 (collecting cases 
discussing an IJ's affirmative duty to develop the record). Further, 
pursuant to new 8 CFR 1240.17(k)(2), the proceedings for noncitizens 
who apply for other forms of relief or protection and produce evidence 
of prima facie eligibility will not be subject to the same expedited 
timeline procedures detailed in this IFR for these expedited 
proceedings generally. No motion is necessary to demonstrate prima 
facie eligibility because the IJ could make such determination based on 
oral representations or information otherwise provided to the IJ.
    In addition, as noted above, the IFR, as provided in new 8 CFR 
1240.17(k)(6), excepts respondents who have exhibited indicia of 
incompetency from these streamlined section 240 proceedings. These 
respondents would instead be placed in ordinary section 240 
proceedings.
    Comments: Commenters disagreed with the NPRM's approach that 
applicants who may be eligible to seek some other form of relief or 
protection beyond asylum, withholding of removal, and protection under 
the CAT would be able to do so only after the completion

[[Page 18178]]

of a full asylum application and interview. Commenters explained that 
this approach would force applicants to relive and testify in depth 
about traumatic events in their lives relevant to their asylum claims, 
even if they have alternative avenues to relief--such as T nonimmigrant 
status or SIJ classification--that do not require in-person hearings 
and would not lead to possible re-traumatization.
    At least one commenter disagreed with the NPRM's lack of a 
provision regarding continuances for a noncitizen to obtain evidence of 
the additional relief or protection for which they may be eligible. The 
commenter noted that it often takes months to obtain relevant evidence, 
but under the NPRM, noncitizens may be forced to go forward with IJ 
review before this process is complete. Additionally, commenters 
objected to the proposed limitations providing for only one motion for 
vacatur and requiring that the filing would have to precede a 
determination on the merits of the protection claim. Commenters argued 
that these limitations would effectively force applicants to choose 
which remedy they wish to seek before their appellate rights are 
exhausted with respect to the asylum, statutory withholding, and CAT 
claims. Commenters stated that requiring the motion to be filed prior 
to the IJ's decision on eligibility for asylum or related protection 
undermines the Departments' goal of balancing fairness and efficiency.
    Commenters suggested that there should be exceptions to the time 
and numerical limitations on the proposed motion for vacatur to account 
for scenarios such as those in which (1) the noncitizen receives 
ineffective assistance of counsel, (2) new facts exist that give rise 
to new fears and forms of relief or protection, (3) updates to 
immigration laws are made, or (4) other unusual circumstances arise.
    Response: The IFR's changes from the NPRM, as discussed above in 
Section III of this preamble, address commenters' concerns with the 
NPRM's proposals related to the timing and number limits for motions to 
vacate the asylum officer's removal order. Specifically, because asylum 
officers will not be issuing removal orders and applicants instead will 
be placed in streamlined section 240 removal proceedings, noncitizens 
may seek other forms of relief or protection beyond asylum, withholding 
of removal, and protection under the CAT, without an intervening motion 
or other threshold requirement like that set out by the NPRM. See 8 CFR 
1240.11(a)(2) (``The immigration judge shall inform the [noncitizen] of 
his or her apparent eligibility to apply for any of the benefits 
enumerated in this chapter and shall afford the [noncitizen] an 
opportunity to make application during the hearing[.]''). Should 
noncitizens request a continuance to obtain evidence of prima facie 
eligibility for other forms of relief or protection, the base standard 
for continuances in streamlined section 240 proceedings will continue 
to be good cause, as provided in new 8 CFR 1240.17(h)(2)(i). However, 
as discussed above in Section III of this preamble, the aggregate 
length of continuances for good cause is capped at 30 days, as provided 
in new 8 CFR 1240.17(h)(2)(i) and (h)(3). Additional continuances 
beyond 30 days will require a heightened showing, as provided in new 8 
CFR 1240.17(h)(2)(ii)-(iii).
    Further, under new 8 CFR 1240.17(k)(2), the proceedings for 
noncitizens who apply for other forms of relief or protection and 
produce evidence of prima facie eligibility will not be subject to the 
same streamlined procedures detailed in this IFR. In addition, for such 
cases, IJs may utilize the same common docket-management tools as those 
generally used in section 240 removal proceedings, such as continuances 
and administrative closure, in appropriate cases where a noncitizen may 
be eligible for alternative forms of relief, such as adjustment of 
status under section 245 of the Act, 8 U.S.C. 1255.
    With respect to commenters who expressed concern about the possible 
trauma that noncitizens might endure from testifying, the Departments 
note that the IFR does not require noncitizens to testify before the 
IJ. Rather, it gives noncitizens the opportunity to provide further 
testimony should they wish to do so. Thus, as provided in new 8 CFR 
1240.17(f)(2)(i), if noncitizens feel that they have had adequate 
opportunity to articulate the nature of their claims before the asylum 
officer, they need not elect to further testify and may rest on the 
record of proceedings before the asylum officer. Additionally, the IFR 
provides in new 8 CFR 1240.17(f)(2) that the parties will engage in a 
status conference prior to the merits hearing during which the parties 
will narrow the issues in dispute. In some instances, the IJ may 
determine that the application can be decided on the documentary record 
without additional testimony from the noncitizen. Id. Further, under 
new 8 CFR 1240.17(f)(2)(ii), DHS may decide not to contest certain 
issues, and noncitizens need not testify about sensitive issues that 
DHS does not contest. The Departments also note that both asylum 
officers and IJs undergo ongoing training and support to promote the 
quality of adjudications and to prepare them to address sensitive 
claims. Asylum officers who conduct interviews are required by 
regulation to undergo ``special training in international human rights 
law, nonadversarial interview techniques, and other relevant national 
and international refugee laws and principles.'' 8 CFR 208.1(b). Asylum 
officers are also required to determine that noncitizens are able to 
participate effectively in their interviews before proceeding. 8 CFR 
208.30(d)(1), (5). These DHS regulations are intended to recognize and 
accommodate the sensitive nature of fear-based claims and to foster an 
environment in which noncitizens may express their claims to an asylum 
officer. Similarly, IJs must undergo comprehensive, ongoing training, 
as provided in DOJ's existing regulations. 8 CFR 1003.0(b)(1)(vii). IJs 
are further directed to conduct hearings in a manner that would not 
discourage a noncitizen from presenting testimony on difficult subject 
matter. See OPPM 17-03: Guidelines for Immigration Court Cases 
Involving Juveniles, Including Unaccompanied Alien Children 3 (Dec. 20, 
2017) (``Every [IJ] should employ age-appropriate procedures whenever a 
juvenile noncitizen or witness is present in the courtroom.''); Matter 
of J-R-R-A-, 26 I&N Dec. 609, 612 (BIA 2015) (``[W]here a mental health 
concern may be affecting the reliability of the applicant's testimony, 
the [IJ] should, as a safeguard, generally accept that the applicant 
believes what he has presented, even though his account may not be 
believable to others or otherwise sufficient to support the claim.''); 
Matter of Y-S-L-C-, 26 I&N Dec. 688, 690-91 (BIA 2015) (``Conduct by an 
[IJ] that can be perceived as bullying or hostile can have a chilling 
effect on a [noncitizen's] testimony and thereby limit his or her 
ability to fully develop the facts of the claim . . . . [S]uch 
treatment of any [noncitizen] is never appropriate[.]''). DHS retains 
the option to issue an NTA to place the noncitizen in ordinary section 
240 removal proceedings prior to the Asylum Merits interview, and it 
could do so if the applicant appears to have a strong claim for a form 
of relief or protection that the asylum officer cannot grant. This 
procedure would be another means of preventing the applicant from 
having to testify twice.
    Comments: Several commenters expressed concern that the proposed 
motion to vacate removal orders would be left to the discretion of the 
IJ, even if the applicant had established prima

[[Page 18179]]

facie eligibility for a different form of relief from removal. In 
particular, commenters stated that the NPRM did not make clear how that 
discretion should be exercised. Commenters argued that the ability to 
appeal such denials to the BIA would not be a sufficient safeguard 
because of the complexity of filing an appeal for some applicants. 
Commenters asserted that the discretionary nature of the motion would 
result in the wrongful removal of noncitizens with available relief, 
which would run afoul of due-process obligations. Further, some 
commenters worried that DHS could exercise discretion not to refer an 
applicant to section 240 removal proceedings even if an IJ were to 
grant a motion to vacate.
    Response: The IFR's changes from the NPRM, as discussed above in 
Section III of this preamble, address commenters' concerns with the 
NPRM's proposed framework under which both the IJ and DHS would make 
discretionary determinations in the context of a motion to vacate. 
First, under the IFR, when an asylum officer does not grant asylum, DHS 
will serve an applicant with an NTA and initiate streamlined section 
240 removal proceedings by filing the NTA with the immigration court. 
See 8 CFR 208.14(c). Second, as recognized in new 8 CFR 1240.17(k)(2), 
because applicants will be referred to streamlined section 240 removal 
proceedings, they may seek other forms of relief or protection beyond 
asylum, withholding of removal, and protection under the CAT, without 
an intervening motion or other threshold requirement like that set out 
by the NPRM. See also 8 CFR 1240.11(a)(2) (``The [IJ] shall inform the 
[noncitizen] of his or her apparent eligibility to apply for any of the 
benefits enumerated in this chapter and shall afford the [noncitizen] 
an opportunity to make application during the hearing[.]''). Finally, 
as provided in new 8 CFR 1240.17(k)(2), noncitizens who produce 
evidence of prima facie eligibility for relief or protection other than 
asylum, withholding of removal, protection under the CAT, or voluntary 
departure and indicate an intent to apply for, or who have applied for, 
such form of relief or protection will be excepted from these 
streamlined section 240 proceedings and have their cases adjudicated 
under the standard processes. Accordingly, noncitizens who are eligible 
to seek forms of relief or protection other than asylum, withholding of 
removal, and protection under the CAT do not have to receive a 
favorable discretionary grant in order to do so.
    Comments: Commenters asserted that the NPRM's proposed differing 
treatment of various categories of asylum seekers is unfairly 
arbitrary. For example, commenters feared that the eligibility of 
asylum seekers to apply for any form of relief or protection--rather 
than just asylum, statutory withholding of removal, and protection 
under the CAT--would be based solely on how CBP and ICE have exercised 
discretion to process noncitizens on a given day.
    Commenters argued that the Departments should allow IJs to grant 
motions to vacate removal orders both where the noncitizen would be 
eligible to apply for relief or protection if in a section 240 
proceeding and where the noncitizen would be eligible to apply for 
collateral relief adjudicated by USCIS because it did not appear that 
an IJ would have the authority to terminate a case under the NPRM.
    Commenters also urged that a noncitizen should be allowed to file 
an interlocutory appeal to the BIA if an IJ denied a motion to vacate 
under the NPRM.
    Finally, commenters requested a clarification and rationale for the 
NPRM's prohibition on a motion to vacate premised on an application for 
voluntary departure. Commenters expressed concern that, if neither 
USCIS nor EOIR can grant voluntary departure, individuals could be 
separated from their families or otherwise negatively affected.
    Response: The IFR's changes from the NPRM, as discussed above in 
Section III.D of this preamble, address commenters' concerns with the 
NPRM's motion to vacate framework. First, under the IFR, any applicant 
not granted asylum by an asylum officer after an Asylum Merits 
interview will be served with an NTA and placed in streamlined section 
240 removal proceedings without the need to request an IJ's review.\90\ 
Accordingly, individuals in streamlined section 240 proceedings will be 
able to apply for all forms of relief or protection for which they may 
be eligible, including voluntary departure, thus addressing commenters' 
concerns on this issue.
---------------------------------------------------------------------------

    \90\ To the extent that commenters' concerns relate to the 
general discretion of DHS to determine whether to place an applicant 
for admission in expedited removal under section 235 of the Act, 8 
U.S.C. 1235, or to issue an NTA and refer the applicant to section 
240 proceedings, commenters' concerns are beyond the scope of this 
rule. See, e.g., Matter of M-S-, 27 I&N Dec. 509, 510 (A.G. 2019) 
(``[I]f the [noncitizen] is inadmissible on one of two specified 
grounds and meets certain additional criteria, DHS may place him in 
either expedited or full proceedings.'').
---------------------------------------------------------------------------

d. Immigration Judge's Authority To Review All Asylum Officer Decisions
    Comments: Commenters stated that asylum applicants who were not 
granted asylum but were granted withholding of removal or CAT 
protection may be deterred from seeking IJ review because of the 
possibility of being denied all relief or protection and removed. 
Commenters stated that such deterrence is particularly inappropriate 
for individuals granted withholding of removal or CAT protection 
because they are unable to travel abroad or petition for relatives to 
follow to the United States. Commenters also stated that the proposed 
rule would leave those granted withholding of removal or CAT protection 
by the asylum officer with a difficult choice of seeking review and 
potentially being removed to their country of feared harm or facing 
permanent separation from family members. Overall, commenters expressed 
concern that the proposal could have a chilling effect on the decision 
to seek review of an asylum officer's decision to not grant asylum 
where doing so would require risking the loss of already-issued 
protection, citing international treaty obligations to not return 
refugees to countries where they might suffer persecution or torture. 
Other commenters were concerned that an asylum applicant would not 
receive notice that seeking review of an asylum officer's decision to 
not grant asylum could also result in IJ review of granted protections.
    Some commenters asserted that requiring IJs to review grants of 
protection is contrary to the rule's stated goals of improving 
efficiency and addressing the immigration court backlog. Commenters 
argued that it is inefficient to require an IJ to revisit portions of 
the asylum officer's decision that neither party has requested the IJ 
review and observed that granted cases can and will be reviewed upon 
the asylee's application for permanent residence. Other commenters 
stated that an IJ's unilateral decision to reverse protections that 
were granted by an asylum officer would undercut the IJ's role as a 
neutral arbiter.
    Commenters asserted that allowing IJs to review grants of 
protection is inconsistent with the principles of adversarial 
adjudication. Commenters noted that the proposed rule would have DHS 
(as the adverse party to an asylum seeker in immigration court) argue 
that a benefit was wrongfully granted by another DHS component (USCIS) 
and asserted that it would be irrational for ICE to argue in this 
manner before EOIR that another component of

[[Page 18180]]

DHS erred in its decision-making. Similarly, commenters argued that the 
executive branch cannot contest a decision also issued by the executive 
branch, asserting that the same reasoning has long applied to the 
prohibition on DHS seeking judicial review of BIA decisions in Federal 
court. According to commenters, this aspect of the rule would 
discourage cooperation between the parties to narrow the issues or 
stipulate to relief, resulting in unnecessary court battles and delay.
    Commenters argued that it would be inequitable for DHS to obtain 
automatic review of a grant of withholding of removal or CAT protection 
when noncitizens do not obtain automatic review of denials. Some 
commenters also worried that authorizing, but not requiring, IJs to 
review withholding of removal and CAT decisions risks inconsistent 
revocation of these benefits if some IJs decide to conduct this review 
and others do not, arguing that the risk of arbitrarily and permanently 
separating families outweighs any efficiency concerns.
    Commenters also asserted that ``mixed cases'' could create 
confusion for noncitizens attempting to request review of their case 
before U.S. Courts of Appeals. For example, commenters stated that IJs 
could reverse the denial of withholding of removal but leave the asylum 
denial and order of removal on the basis of prior grounds of 
inadmissibility undisturbed. Commenters worried that, in such cases, 
noncitizens requesting review before courts of appeal would likely 
exceed the ``mandatory and jurisdictional'' 30-day limit to review 
their asylum denial and accompanying removal order. Finally, commenters 
asserted that these procedural hurdles would deter pro bono attorneys 
from taking cases.
    Response: As described above in Section III of this preamble, this 
IFR does not adopt the NPRM's proposed IJ review procedure and instead 
implements streamlined section 240 removal proceedings in new 8 CFR 
1240.17. One consequence of this change from the NPRM, which the 
Departments emphasize was requested by the majority of those who 
commented on this aspect of the NPRM, is that the asylum officer will 
not issue orders of removal or grant withholding of removal or 
protection under the CAT. Rather, because the IJ will issue orders of 
removal, the IJ will also grant or deny withholding of removal and 
protection under the CAT. See Matter of I-S- & C-S-, 24 I&N Dec. 432, 
434 (BIA 2008) (``[W]hen an [IJ] decides to grant withholding of 
removal, an explicit order of removal must be included in the 
decision.'').
    Nevertheless, asylum officers will continue to consider the 
applicant's eligibility for withholding of removal and protection under 
the CAT during the Asylum Merits interviews and, if they do not grant 
the application for asylum, will indicate whether the applicant has 
demonstrated eligibility for withholding of removal or protection under 
the CAT based on the record before USCIS. See 8 CFR 208.14(c)(1); 8 CFR 
208.16(a). Upon an asylum officer's decision to not grant asylum, the 
noncitizen is placed in streamlined section 240 removal proceedings. 
The IFR provides that the IJ will schedule a status conference where 
the noncitizen will indicate whether the noncitizen intends to contest 
removal or seek any protections for which the asylum officer did not 
determine that the noncitizen was eligible. If the noncitizen does not 
intend to contest removal or seek any protections for which the asylum 
officer did not determine that the noncitizen was eligible, the IJ will 
order the noncitizen removed. If the asylum officer determined that the 
noncitizen was eligible for withholding of removal or protection under 
the CAT, the IJ will give effect to the protection for which the asylum 
officer determined that the noncitizen was eligible, subject to the 
ability of DHS to present new evidence establishing that the applicant 
is not eligible for protection.
    However, the noncitizen can elect to contest removal or seek 
protections that were not granted by the asylum officer. Where the 
asylum officer did not grant the application for asylum and determined 
that the applicant is not eligible for statutory withholding of removal 
or withholding or deferral of removal under the CAT, the IJ will review 
each of the applications de novo as provided in new 8 CFR 
1240.17(i)(1). Where the asylum officer did not grant asylum but 
determined that the applicant was eligible for statutory withholding of 
removal or protection under the CAT, the IJ will adjudicate the 
application for asylum de novo, as provided in new 8 CFR 1240.17(i)(2). 
Further, under new 8 CFR 1240.17(i)(2), if the IJ denies asylum and 
enters an order of removal, the IJ will also issue an order giving 
effect to the protections for which the asylum officer determined that 
the noncitizen was eligible, unless DHS affirmatively demonstrates 
through evidence or testimony that specifically pertains to the 
respondent and that was not included in the record of proceedings for 
the USCIS Asylum Merits interview that the noncitizen is not eligible 
for such protection. The IJ will grant any protections for which the IJ 
finds the noncitizen eligible.
    The Departments believe that these procedures outlined in the IFR 
address many concerns of the commenters while also promoting efficiency 
in governmental processes. First, the IFR does not allow the IJ to 
reconsider sua sponte relief or protection for which the asylum officer 
determined the noncitizen was eligible. Instead, under new 8 CFR 
1240.17(i)(2), if the noncitizen elects to contest removability or the 
asylum officer's determination, the burden shifts to DHS to present 
evidence showing that evidence or testimony not included in the asylum 
officer record and specifically pertaining to the noncitizen 
establishes that the noncitizen is not eligible for the relief or 
protection. The Departments believe it is necessary for DHS to be able 
to revisit the issue of eligibility in special circumstances, such as 
when there may be evidence of fraud or new derogatory information 
affecting eligibility. As explained above, the Departments believe 
that, without a process for DHS to address such issues in the 
streamlined section 240 removal proceedings, DHS would otherwise have 
to follow the procedures in 8 CFR 208.17(d) and 208.24(f) in instances 
where overturning the asylum officer's eligibility determination is 
justified.
e. Appeal of Immigration Judge's Decision to the Board of Immigration 
Appeals
    Comments: Some commenters expressed support for the appeal 
procedures in the NPRM.
    Other commenters expressed concern that, without a traditional 
immigration court hearing transcript to review, BIA and Federal court 
review would be cursory. Similarly, commenters asserted that the BIA 
and Federal court review under the NPRM would be meaningless because 
they believed such review would be conducted on the basis of a partial, 
incomplete record and that, in many cases, there would be initial 
rounds of litigation regarding application of the NPRM's limitations on 
the introduction of evidence.
    Response: As discussed above in Section III of this preamble, under 
this IFR, applicants not granted asylum by the asylum officer after an 
Asylum Merits interview will be referred to streamlined section 240 
removal proceedings before the immigration court. This change from the 
NPRM addresses commenters' concerns about the effect of the nature of 
the IJ review proceedings set out in the NPRM on any subsequent BIA or 
appellate review. Under the IFR, in new 8 CFR 1240.17(a)

[[Page 18181]]

and (g)(1), noncitizens will be afforded longstanding procedural 
protections and due process safeguards inherent in section 240 
proceedings, including the right to representation at no cost to the 
Government and the rights to present evidence and testimony. See INA 
240(b)(4)(A)-(B), 8 U.S.C. 1229a(b)(4)(A)-(B). More specifically, under 
new 8 CFR 1240.17(a), noncitizens will have the opportunity to be heard 
at scheduled hearings and the ability to develop the record by 
presenting evidence that is timely submitted, relevant, probative, and 
not fundamentally unfair. Furthermore, under new 8 CFR 1240.17(g)(2), 
IJs may consider late-filed evidence that is filed before the IJ issues 
a decision in the case if it could not reasonably have been obtained 
and presented before the deadline through the exercise of due 
diligence. A complete record of all evidence and testimony will be kept 
in accordance with the standard procedures for section 240 proceedings. 
INA 240(b)(4)(C), 8 U.S.C. 1229a(b)(4)(C). This includes but is not 
limited to: (1) The record of proceedings before the asylum office, as 
outlined in 8 CFR 208.9(f); (2) a written statement, if any, from the 
noncitizen describing any alleged errors and omissions in the asylum 
officer's decision or the record of proceedings before the asylum 
office; and (3) documentation and testimony in support of the 
application for relief or protection. The Departments believe that this 
requirement will alleviate procedural concerns and ensure that the BIA 
will have a full record on appeal and that U.S. Courts of Appeals will 
have a full record in a petition for review.
f. Other Comments on Proposed Application Review Proceedings Before 
Immigration Judges
    Comments: Commenters urged the Departments to remove the regulatory 
language that would permit the immigration court to reject an asylum 
application if proof of payment of the fee, if required, is not 
submitted, citing proposed 8 CFR 1208.3(a)(2). Commenters asserted that 
asylum applications should never require a fee because seeking safety 
from persecution is a fundamental human right and refusing asylum 
applicants for the inability to pay would effectively cause the United 
States to abrogate its international obligations. Stating that the 
prior Administration's fee rule is enjoined, commenters suggested that 
the Departments should not leave open the possibility for future 
administrations by explicitly including the possibility of an asylum 
application fee in this proposed regulation.
    Response: As noted in the NPRM, the Departments published numerous 
rules in recent years that have been vacated, enjoined, or otherwise 
delayed. 86 FR 46909 n.24. Two such rules are final rules regarding 
application fees issued by DHS and DOJ, respectively. See U.S. 
Citizenship and Immigration Services Fee Schedule and Changes to 
Certain Other Immigration Benefit Request Requirements, 85 FR 46788 
(Aug. 3, 2020) (enjoined by Immigrant Legal Res. Ctr. v. Wolf, 491 F. 
Supp. 3d 520 (N.D. Cal. 2020), and Nw. Immigrant Rts. Project v. United 
States Citizenship & Immigr. Servs., 496 F. Supp. 3d 31 (D.D.C. 2020), 
appeal dismissed, No. 20-5369, 2021 WL 161666 (DC Cir. Jan. 12, 2021)); 
Executive Office for Immigration Review; Fee Review, 85 FR 82750 (Dec. 
18, 2020) (partially enjoined by Cath. Legal Immigr. Network, Inc. v. 
Exec. Off. for Immigr. Rev., 513 F. Supp. 3d 154 (D.D.C. 2021)).
    Language regarding the submission of an application fee, if any, 
for applications for asylum was included in the latter rule. 8 CFR 
1208.3(c)(3); see also 85 FR 82765-69 (discussing commenters' concerns 
regarding an application fee for asylum applications). The NPRM 
proposed to amend the regulations only as necessary to effectuate the 
changes related to the credible fear and asylum adjudication processes 
as explained in the NPRM and this IFR. See, e.g., 86 FR 46914 n.38. As 
a result, the NPRM did not include any proposed edits regarding the 
asylum application fee-related language in Sec.  1208.3(c)(3).\91\ The 
language related to the payment of an asylum application fee, if any, 
was included simply as surrounding regulatory text that was reprinted 
to ensure correct amendments to the language related to the credible 
fear and asylum adjudication processes.
---------------------------------------------------------------------------

    \91\ The commenter is incorrect that the Department included 
language regarding an application fee for applications for asylum at 
8 CFR 1208.3(a)(2).
---------------------------------------------------------------------------

    DOJ, however, will be considering additional changes to the 
regulations regarding the applicable fees for applications and motions 
during EOIR proceedings. See Executive Office of the President, OMB, 
OIRA, Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, 
https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1125-AB19 (last visited Mar. 9, 2022).
    Comments: Commenters urged the Departments to rescind the 
provisions of the Global Asylum rule that expressly permit 
pretermission of asylum claims and to enact a broad regulatory bar on 
the practice. At a minimum, commenters asked the Departments to 
expressly prohibit IJs from pretermitting asylum applications upon 
review from asylum officers' decisions to not grant asylum, arguing 
that allowing IJs to do so under the proposed system of minimal process 
would violate the Constitution.
    Response: As stated above, the NPRM only proposed to amend 
provisions of prior rulemakings to the extent necessary to implement 
the proposed changes related to the credible fear and asylum 
adjudication processes. See, e.g., 86 FR 46914 n.38. The provisions 
referenced by commenters at 8 CFR 1208.13(e) regarding pretermission of 
applications were added by the Departments as part of a separate 
rulemaking known as the Global Asylum rule. See 85 FR 80274. Because 
this provision is beyond the scope of the changes needed to effectuate 
the credible fear and application review processes included in the 
NPRM, the Departments are not including any changes to this provision 
at this point. However, the Departments will consider whether to modify 
or rescind 8 CFR 1208.13(e) and the other remaining portions of the 
regulations affected by enjoined regulations in future rulemakings. 
See, e.g., Executive Office of the President, OMB, OIRA, Fall 2021 
Unified Agenda: Department of Justice, https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&age
ncyCode=&showStage=active&agencyCd=1100&csrf_token=1F5E59171165D9C756F8D
13DB0280F16BF4E61995A08C2DA5251225495FD83335EE930292724E7EF24BEB50141CF0
AC59747 (last visited Mar. 1, 2022).
    Comments: Commenters urged the Departments to preserve Federal 
court review of asylum cases in any asylum process, stressing that 
judicial review protects refugees from politicized policies, rushed 
administrative decision-making, or discriminatory factual and legal 
interpretations and provides judicial oversight of administrative 
adjudications with life-or-death consequences. Some commenters argued 
that the proposed rule does not provide adequate appellate protections 
for asylum seekers, explaining that the provision of the NPRM 
subjecting asylum seekers to expedited removal under INA 235(b)(1), 8 
U.S.C. 1225(b)(1), unless and until they are granted asylum, could be 
found by courts to trigger the INA's jurisdiction-stripping provision 
relating

[[Page 18182]]

to expedited removal. See INA 242(a)(2)(A), 8 U.S.C. 1252(a)(2)(A).
    Specifically, commenters expressed concern that some courts might 
view a challenge to the denial of an asylum application that affirms an 
expedited order of removal and denies all relief or protection as 
asking the court ``to review . . . any individual determination or to 
entertain any other cause or claim arising from or relating to the 
implementation or operation of an order of removal pursuant to [INA 
235(b)(1), 8 U.S.C. 1225(b)(1)],'' claims for which the statute bars 
jurisdiction. See INA 242(a)(2)(A), 8 U.S.C. 1252(a)(2)(A). Commenters 
asserted that the statute authorizes only two processes for the 
issuance of a removal order: (1) An expedited removal order under INA 
235(b)(1), 8 U.S.C. 1225(b)(1), for which judicial review is barred; 
and (2) a removal order entered in proceedings under INA 240, 8 U.S.C. 
1229a, for which judicial review is available but which the NPRM 
expressly proposed not to use. As such, according to commenters, the 
Departments' simultaneous assertion that INA 235(b)(1), 8 U.S.C. 
1225(b)(1) provides the authority to create the proposed procedures 
while at the same time stating that an order of removal issued pursuant 
to those procedures is not ``an order of removal pursuant to [INA 
235(b)(1), 8 U.S.C. 1225(b)(1)]'' could raise questions about the 
availability of judicial review.
    Commenters also expressed concern that, even if this Administration 
is committed to interpreting the proposed rule as allowing for judicial 
review, a future administration could advise counsel at ICE and DOJ to 
interpret the rule more narrowly and argue that judicial review is not 
available. According to commenters, the possibility that the proposed 
rule could inadvertently deprive asylum seekers of judicial review is 
another reason to ensure that those not granted asylum by an asylum 
officer after passing a credible fear screen are referred to 
proceedings under INA 240, 8 U.S.C. 1229a.
    Finally, some commenters questioned what items the Federal courts 
would review, even if there is no jurisdictional hurdle to review by a 
U.S. Court of Appeals. Asserting that the circuit courts of appeals are 
used to reviewing records that include full immigration court hearing 
transcripts, commenters expressed concern that, under the proposed 
rule, courts of appeals would review a written decision of the BIA, 
which reviewed an IJ's review of an asylum officer's decision. Although 
the record likely would include a transcript of the asylum officer 
interview, commenters worried that the transcript would be two levels 
removed from the Federal court review and would not be in the formal 
format that Federal courts are accustomed to reviewing.
    Response: As explained above in Section III of this preamble, the 
Departments are not adopting the IJ review procedure proposed in the 
NPRM; instead, under this IFR, noncitizens whose applications for 
asylum are adjudicated but not granted by an asylum officer will be 
issued an NTA and referred to an IJ for further review of their 
applications in streamlined section 240 removal proceedings. If the IJ 
in turn denies the noncitizen's application for asylum, the IJ will 
issue an order of removal, and the noncitizen may appeal that decision 
under the generally applicable procedures, first to the BIA and then in 
a petition for review to the appropriate U.S. Court of Appeals. 8 CFR 
1003.24; INA 242, 8 U.S.C. 1252. Accordingly, this change addresses 
commenters' concerns regarding the availability of judicial review.
    Regarding commenters' concerns about the record for judicial 
review, the Departments do not agree that the nature of the record 
presents concerns. As stated in the NPRM, USCIS will transcribe the 
Asylum Merits interview before the asylum officer, and that verbatim 
transcript will be included in the referral package sent to the 
immigration court, as finalized in 8 CFR 208.9(f). Because the 
Departments will ensure that the transcripts of these hearings are in a 
format that is appropriate for the IJ's review of the record, 
commenters' concerns that the transcript will not be sufficiently 
formal or otherwise helpful for BIA or Federal court review is simply 
speculative. The noncitizen may then supplement the record from the 
hearing by the asylum officer during the noncitizen's proceedings 
before an IJ, including by providing statements or evidence regarding 
any alleged insufficiency during the Asylum Merits proceedings. 
Further, if the noncitizen appeals the IJ's decision, all hearings 
conducted by the IJ will be transcribed under standard EOIR procedures. 
See 8 CFR 1003.5(a) (2020).\92\
---------------------------------------------------------------------------

    \92\ DOJ amended 8 CFR 1003.5 in 2020 as part of a final rule 
that affected EOIR procedures related to the processing of BIA 
appeals. Appellate Procedures and Decisional Finality in Immigration 
Proceedings; Administrative Closure, 85 FR 81588 (Dec. 16, 2020). On 
March 10, 2021, the United States District Court for the Northern 
District of California granted a nationwide preliminary injunction 
barring the Department from implementing or enforcing the 2020 rule 
or any portion thereof and stayed the effectiveness of the rule. 
Centro Legal de La Raza v. Exec. Off. for Immigr. Rev., No. 21-CV-
00463-SI, 2021 WL 916804, at *1 (N.D. Cal. Mar. 10, 2021). 
Accordingly, the Departments cite to the regulations in effect prior 
to publication of the December 16, 2020 rule.
---------------------------------------------------------------------------

    Comments: Some commenters stated that, although they suggested 
changes to strengthen due process protections with respect to the 
proposed IJ review proceedings, the Departments are on track to usher 
in a modernized U.S. asylum system that is orderly, efficient, and 
fair.
    Another commenter called attention to what it said is ``the 
fundamental defect in our immigration adjudication system that gives 
rise to the technocratic changes proposed'' in the NPRM: The lack of an 
independent immigration court. The commenter suggested that the 
Departments adopt a ``new model'' in which an independent court, 
presided over by independent judges, would assertedly ``make rational 
decisions based on the facts and the law of the cases it hears.''
    Commenters also expressed concern that the proposed appeal process 
seems vague, among other flaws, leaving it unclear what will happen to 
someone where an IJ on appeal rules in contradiction of the lower 
authority.
    Response: Commenters' assertions regarding problems with the 
immigration court system as a whole are beyond the scope of this 
rulemaking. Nonetheless, the Departments emphasize that IJs exercise 
``independent judgment and discretion'' in deciding cases, 8 CFR 
1003.1(d)(1)(ii) and 1003.10(b), and are prohibited from considering 
political influences in their decision-making, IJ Ethics and 
Professionalism Guide (``An Immigration Judge should not be swayed by 
partisan interests or public clamor.'').
    Moreover, as noted above and in Section III of this preamble, the 
Departments have not adopted the IJ review procedure proposed in the 
NPRM and instead are providing that if an asylum officer adjudicates 
but does not grant asylum, the noncitizen will be issued an NTA in 
streamlined section 240 removal proceedings. Because new 8 CFR 
1240.17(a) provides that the same rules and procedures governing 
proceedings under 8 CFR, part 1240, subpart A, apply unless otherwise 
noted, if the IJ in turn denies relief or protection, a noncitizen may 
appeal the IJ's decision to the BIA under the DOJ regulations at 8 CFR 
1240.15 and may further petition for review of the BIA's decision by a 
Federal circuit court. The Departments believe that this revision 
addresses commenters' concerns about

[[Page 18183]]

the alleged vagueness and unfairness of the proposed appeal process in 
the NPRM by providing a clear process for appeal and incorporating 
longstanding protections that ensure fairness in immigration 
proceedings.
    Comments: Commenters urged the Departments to ensure that all 
noncitizens have access to motions to reopen protections, asserting 
that the NPRM is unclear about whether there would be an opportunity 
for the noncitizen to move to reopen if not physically removed 
following a removal order.
    Response: As noted above and in Section III of this preamble, the 
Departments have decided not to adopt the IJ review procedure proposed 
in the NPRM and instead are providing that if an asylum officer 
adjudicated but did not grant asylum, the noncitizen will be issued an 
NTA in streamlined section 240 removal proceedings. The standard rules 
governing motions to reopen will continue to apply in those section 240 
proceedings. See INA 240(b)(5)(C), (c)(7), 8 U.S.C. 1229a(b)(5)(C), 
(c)(7); 8 CFR 1003.2, 1003.23. The Departments believe this change 
addresses commenters' concerns about the clarity of rules governing 
access to motions to reopen in the NPRM.
    Comments: Commenters urged the Departments to generally end the 
practice of expedited removal, particularly in the case of asylum 
seekers, and grant applicants a full hearing before an IJ when 
requesting an appeal on a negative decision by an asylum officer.
    Response: Commenter recommendations to eliminate expedited removal 
are beyond the scope of this rulemaking. Nevertheless, the Departments 
note that expedited removal is a statutorily provided procedure. INA 
235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i) (``If an immigration officer 
determines that [a noncitizen] . . . who is arriving in the United 
States . . . is inadmissible . . . the officer shall order the 
[noncitizen] removed from the United States without further hearing or 
review unless the [noncitizen] indicates either an intention to apply 
for asylum . . . or a fear of persecution.''); INA 
235(b)(1)(B)(iii)(I), 8 U.S.C. 1225(b)(1)(B)(iii)(I) (``[I]f the 
officer determines that [a noncitizen] does not have a credible fear of 
persecution, the officer shall order the [noncitizen] removed from the 
United States without further hearing or review.'').
    Comments: Commenters suggested ways to ensure timely, effective, 
and fair immigration court decisions: (1) Formalize IJ authority to use 
administrative closure to manage their dockets; (2) establish formal 
pre-hearing conferences for DHS attorneys and noncitizens' counsel to 
confer and identify issues in dispute prior to trial, stipulate to 
issues where there is no dispute, or agree that asylum or protection is 
grantable based on the written submissions; (3) clarify the IJ's 
authority to terminate section 240 removal proceedings to allow a 
noncitizen to pursue applications for permanent status before USCIS if 
the noncitizen establishes prima facie eligibility for such status; and 
(4) create a formal mechanism for asylum seekers and other immigrants 
to advance immigration court hearing dates to ensure that their cases 
are timely heard and that hearing slots do not go unused.
    Response: Comments suggesting improvements for immigration court 
proceedings generally are outside the scope of this rulemaking. 
However, the Departments briefly explain the current legal scheme and 
how it may relate to this IFR.
    First, regarding commenters' request that IJs be able to utilize 
administrative closure to manage their dockets, the Attorney General 
recently issued Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021), 
finding that, while the process of rulemaking proceeds, the current 
standard for administrative closure is set out in Matter of Avetisyan, 
25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 
2017). Parties should refer to the current case law until further 
rulemaking is completed. See Director Memorandum's (DM) 22-03, 
Administrative Closure (Nov. 22, 2021).
    Second, regarding the commenters' request for a formal pre-hearing 
conference, the IFR, in new 8 CFR 1240.17(f), provides that the IJ will 
hold a prehearing status conference to narrow the issues and otherwise 
simplify the case.
    Third, commenters' request that the Departments clarify general IJ 
authority to terminate proceedings to allow a noncitizen to pursue 
other relief or protection before USCIS is beyond the scope of this 
rulemaking. This IFR specifically addresses procedures for noncitizens 
subject to the expedited removal process; it does not involve general 
IJ authority to terminate proceedings. Regarding IJs' general authority 
to terminate proceedings, relevant case law provides that an IJ may 
dismiss or terminate section 240 removal proceedings only under the 
circumstances identified in the regulations. See Matter of S-O-G- & F-
D-B-, 27 I&N Dec. 462 (BIA 2018). Further, parties may agree to dismiss 
proceedings for the noncitizen to pursue other relief or protection 
before USCIS. See Matter of Kagumbas, 28 I&N Dec. 400, 401 n.2 (BIA 
2021) (noting that parties are not prohibited ``from agreeing to 
dismiss proceedings so that a respondent may pursue adjustment of 
status before . . . USCIS''). Fourth, regarding commenters' request for 
EOIR to create a formal mechanism for noncitizens to file a motion to 
advance hearing dates, the Immigration Court Practice Manual provides 
formal instructions for requests to advance a hearing date. See EOIR 
Policy Manual, Part II.5.10(b). Moreover, EOIR maintains a formal 
policy to ensure that all available blocks of immigration court time 
are utilized to the maximum extent practicable. See EOIR, PM 19-11, No 
Dark Courtrooms (May 1, 2019), https://www.justice.gov/eoir/file/1149286/download.

E. Other Issues Related to the Proposed Rulemaking

1. Public and Stakeholder Input
    Comments: Several commenters requested a comment period extension 
for various reasons, such as unclear deadline instructions, 
insufficient time to comment, and impacts of the COVID-19 pandemic. One 
commenter stated that commenting on this rule is difficult without 
understanding its interaction with other proposed rulemakings relating 
to the asylum system.
    Additionally, two commenters requested that the proposed rule be 
rescinded, revised, and reposted for another comment period 
opportunity. One of these commenters said the agency should reissue a 
new NPRM after providing asylum seekers meaningful opportunities to 
present their own recommendations for reforming the asylum system.
    Response: Although the APA does not require a specific time period 
for public comments, Executive Orders 12866, 58 FR 51735 (Sept. 30, 
1993), and 13563, 76 FR 3821 (Jan. 18, 2011), recommend a comment 
period of at least 60 days. Here, the Departments have a provided a 60-
day comment period that allowed for adequate notice, evinced by the 
over 5200 comments received and addressed in this rule. In addition, 
the Departments are issuing this rulemaking as an IFR with a request 
for comment, thus allowing the public a further chance to provide 
input. The Departments consequently do not agree with the need for an 
extension. Additionally, suggestions to rescind, revise, and republish 
the rule upend the rulemaking process. The NPRM is designed to provided 
fair notice and

[[Page 18184]]

allow for public input. Engaging in continual reworking of such a 
notice because of public comment undermines the methodology of informal 
rulemaking under the APA.
    Comments: Several commenters urged USCIS to engage with 
stakeholders like immigration advocates, non-governmental 
organizations, and asylum seekers to improve existing processes prior 
to publishing the rule. One commenter provided specific feedback from 
its members about improving the efficiency and accessibility of the 
asylum system.
    Another commenter similarly requested that, before any further 
steps are taken to finalize the rule, additional consultations take 
place. The commenter ``remind[ed]'' the Departments that, in response 
to a rule proposed by the prior Administration, UNHCR emphasized that 
it was prepared to offer technical assistance, and the asylum officers' 
union observed that the current Administration ``must make sure that 
the individuals tasked with implementing policy have a voice in 
crafting new regulations.'' The commenter stated that, by Executive 
order, the President has mandated that Federal Departments ``shall 
promptly begin consultation and planning with international and non-
governmental organizations to develop policies and procedures for the 
safe and orderly processing of asylum claims at United States land 
borders.'' If the Departments choose not to engage in such consultation 
and planning with experts, the commenter requested an explanation of 
why not.
    Response: The Departments acknowledge commenters' requests for 
further engagement and their suggestions to improve the asylum program. 
Here, the Departments provided a 60-day comment period in the NPRM, 
which provided the opportunity for members of the public, including the 
commenters, public employee unions, and other stakeholders, to offer 
feedback on the rule. In addition, in this IFR, the Departments are 
including another request for public comments. Furthermore, the 
Departments regularly engage experts from non-governmental and 
intergovernmental organizations to supplement the extensive training 
provided to their personnel. The Departments also note that they 
regularly hold public engagement sessions with stakeholders, allowing 
further opportunity for the consultations the commenters have 
requested. The Departments are continually seeking ways to improve the 
manner in which they carry out their duties in service to the public 
and take into account stakeholder feedback when doing so.
    Comments: Some commenters requested a more specific definition of 
``particular social group'' to better understand the proposed rule and 
provide feedback. Similarly, several commenters requested a delay in 
implementation of the rule until the ``particular social group'' rule 
is issued so that Congress has the opportunity to comment and, if 
necessary, to legislate on who is eligible for asylum.
    Response: The Departments acknowledge the commenters' interest in 
the forthcoming rulemaking addressing, among other things, the 
definition of the term ``particular social group'' as used in the 
INA.\93\ However, the Departments disagree that the implementation of 
this IFR should be delayed until the ``particular social group'' rule 
is issued. The Departments do note, however, that in issuing this 
rulemaking as an IFR, they are soliciting further comment on its 
provisions. This rulemaking does not change any of the criteria for 
asylum eligibility, but rather addresses the procedures and mechanisms 
by which the asylum claims of individuals subject to expedited removal 
are considered and processed. By contrast, the ``particular social 
group'' rulemaking would codify the Departments' interpretations of 
certain Federal statutes they are charged with implementing. The 
Administrator of the Office of Information and Regulatory Affairs 
within the Office of Management of Budget has determined that this IFR 
is a ``major rule'' within the meaning of Subtitle E of the Small 
Business Regulatory Enforcement Fairness Act of 1996 (also known as the 
Congressional Review Act), 5 U.S.C. 804(2). Accordingly, this IFR is 
effective 60 days after publication, thus allowing additional time for 
congressional review. If Congress deems it necessary to legislate on 
asylum eligibility or any other topic within its authority under the 
United States Constitution, it may certainly do so without regard to 
any regulations promulgated by Executive departments. The Departments 
will faithfully execute any laws enacted by Congress and signed by the 
President.
---------------------------------------------------------------------------

    \93\ See Executive Office of the President, OMB, OIRA, Spring 
2021 Unified Agenda of Regulatory and Deregulatory Actions, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104& RIN=1615-
AC65 (last visited Feb. 27, 2022).
---------------------------------------------------------------------------

2. Severability
    Comments: A commenter expressed concern that, if certain protective 
provisions in the proposed rule are severed, then it ``would fall short 
of international standards for fair and efficient processing of asylum 
applications.''
    Response: The Departments acknowledge the commenter's concern. The 
Departments are committed to ensuring that the process afforded 
applicants meets the requirements of due process even if certain 
aspects of the IFR are enjoined by a court. With this consideration in 
mind, the Departments reiterate the statement on severability set forth 
in the NPRM. 86 FR 46921. That is, to the extent that any portion of 
the IFR is stayed, enjoined, not implemented, or otherwise held invalid 
by a court, the Departments intend for all other parts of the rule that 
are capable of operating in the absence of the specific portion that 
has been invalidated to remain in effect. Thus, even if a judicial 
decision invalidating a portion of the IFR results in a partial 
reversion to the current regulations or to the statutory language 
itself, the Departments intend that the rest of the IFR continue to 
operate in tandem with the reverted provisions, if at all possible, and 
subject to the discretion permitting USCIS to decide to issue 
individuals NTAs and refer noncitizens to ordinary section 240 removal 
proceedings.
3. Discretion and Phased Implementation
a. Discretion
    Comments: One commenter expressed concern about providing DHS with 
discretion to determine whether noncitizens who receive a positive 
credible fear determination are issued NTAs and referred directly to 
section 240 removal proceedings or instead have their cases retained by 
USCIS for Asylum Merits interviews. The commenter urged DHS to 
eliminate the discretion to place noncitizens in section 240 removal 
proceedings rather than in the new process. This commenter believes 
that such discretion is arbitrary, inconsistent, and will ``exacerbate 
negative bias'' in the decision-making process. Another commenter urged 
the Departments to reconsider the use of discretion because the 
commenter believes there is a high risk of inconsistent treatment among 
asylum seekers subject to the new process and asylum seekers who are 
placed in section 240 removal proceedings in the first instance.
    Response: The Departments acknowledge the commenters' concerns but 
disagree that permitting DHS to continue to exercise its discretion to 
place noncitizens who establish a credible fear of persecution or 
torture directly into ordinary section 240

[[Page 18185]]

removal proceedings before an IJ, as finalized in new 8 CFR 208.30(b), 
is arbitrary, inconsistent, or will exacerbate negative bias. Such 
discretion is needed because there may be circumstances in which it may 
be more appropriate for a noncitizen's protection claims to be heard 
and considered in the adversarial process before an IJ in the first 
instance (for example, in cases where a noncitizen may have committed 
significant criminal acts, engaged in past acts of harm to others, or 
created a public safety or national security threat). In addition, the 
Departments anticipate that DHS will also need to continue to place 
many noncitizens receiving a positive credible fear determination into 
ordinary section 240 removal proceedings while USCIS takes steps needed 
to allow for full implementation of the new process. Noncitizens who 
are placed into section 240 removal proceedings in the first instance 
will have access to the same procedural protections that have been in 
place for asylum adjudications for many years. Such exercise of 
discretion is similar to and in line with DHS's recognized 
prosecutorial discretion to issue an NTA to a covered noncitizen in 
expedited removal proceedings at any time after the covered noncitizen 
is referred to USCIS for a credible fear determination. See Matter of 
E-R-M- & L-R-M-, 25 I&N Dec. at 523. Moreover, USCIS asylum officers 
have experience with exercising discretion in various contexts, 
including in the adjudication of the asylum application itself, and, 
thus, will be well suited to exercise discretion in this context.
b. Phased Implementation
    Comments: Some commenters expressed opposition to the phased rule 
implementation approach. One commenter asserted that a Federal district 
court has found that the practice of expediting cases for a particular 
subset of individuals may violate their rights, citing Las Americas 
Immigrant Advocacy Center v. Trump, 475 F. Supp. 3d 1194 (D. Or. 2020). 
Another commenter asserted that there is no justification for what the 
commenter viewed as the rule's preferential treatment for non-detained 
families over detained individuals and single adult women and men. 
Another commenter suggested a detailed plan for USCIS to conduct a 
pilot project allowing asylum seekers to opt into the new process and 
then have USCIS collect evidence about the fairness and expeditiousness 
of the rule before it becomes final. Alternatively, the commenter 
suggested providing a preliminary period during which the rule would be 
in effect followed by a ``stay'' of the regulatory changes to ensure 
that the new process is producing fair and expeditious decisions.
    Response: As discussed in greater detail in the costs and benefits 
analysis of this rule and its impacts on USCIS, as required under 
Executive Orders 12866 and 13563, USCIS has estimated that it will need 
to hire new employees and spend additional funds to fully implement the 
new Asylum Merits process. If the number of noncitizens placed into 
expedited removal and making successful fear claims increases, the cost 
to implement the rule with staffing levels sufficient to handle the 
additional cases in a timely fashion would be substantially higher. 
Until USCIS can support full implementation, USCIS will need to 
continue to place a large percentage of individuals receiving a 
positive credible fear determination into ordinary section 240 removal 
proceedings in the first instance.
    Current resource constraints will prevent the Departments from 
immediately achieving their ultimate goal of having the protection 
claims of nearly all individuals who receive a positive credible fear 
determination adjudicated by an asylum officer in the first instance. 
The Departments are also accounting for existing and emerging 
priorities impacting the workload of the USCIS Asylum Division, such as 
the affirmative asylum caseload and the streamlined asylum application 
processing of certain Afghan parolees as described in section 2502(a) 
of the Extending Government Funding and Delivering Emergency Assistance 
Act.\94\ The Departments believe that, to fully implement the rule, 
additional resources will be required. The Departments therefore will 
expand use of the new Asylum Merits process in phases, as the necessary 
staffing and resources are put into place.
---------------------------------------------------------------------------

    \94\ See Public Law 117-43, sec. 2502, 135 Stat. 344, 377 
(2021); DHS, DHS Announces Fee Exemptions, Streamlined Processing 
for Afghan Nationals as They Resettle in the U.S. (Nov. 8, 2021), 
https://www.dhs.gov/news/2021/11/08/dhs-announces-fee-exemptions-streamlined-processing-afghan-nationals-they-resettle.
---------------------------------------------------------------------------

    While the Departments acknowledge the commenters' recommendations 
that the Departments proceed with a pilot project or have regulatory 
changes take effect for a limited time, the Departments believe that 
the phased implementation approach is better suited for this new 
process. A phased implementation will allow the Departments to begin 
employing the new process in an orderly and controlled manner and for a 
limited number of cases, giving USCIS the opportunity to work through 
operational challenges and ensure that each noncitizen placed into the 
process is given a full and fair opportunity to have protection claims 
presented, heard, and properly adjudicated in full conformance with the 
law. Phased implementation will also have an immediately positive 
impact in reducing the number of individuals arriving at the Southwest 
border who are placed into backlogged immigration court dockets, thus 
allowing the Departments to more quickly adjudicate some cases. Phased 
implementation will also ensure that EOIR is able to dedicate IJs to 
the streamlined section 240 removal proceedings, which will require 
available docket space to meet these proceedings' scheduling 
requirements.
    Given limited agency resources, the Departments anticipate first 
implementing this new process for only a limited number of noncitizens 
who receive a positive credible fear determination after the effective 
date of this rule. The Departments believe this is necessary because 
USCIS capacity is currently insufficient to handle all referrals under 
this new process. The Departments also anticipate limiting referrals 
under the initial implementation of this rule to noncitizens 
apprehended in certain Southwest border sectors or stations, as well as 
based on the noncitizen's final intended destination (e.g., if the 
noncitizen is within a predetermined distance from the potential 
interview location). As the USCIS Asylum Division gains resources and 
builds capacity, the Departments anticipate that additional cases could 
be considered for processing pursuant to this phased implementation.
    The Departments also disagree that the decision in Las Americas 
precludes a phased implementation of the IFR. The relevant part of that 
decision addressed only whether the adoption of a separate policy 
constituted ``final agency action'' that could be challenged under the 
APA. 475 F. Supp. 3d at 1216. The decision did not purport to prohibit 
agencies from implementing regulatory programs in phases.
    Overall, the Departments will work together to ensure that both 
agencies have capacity as this rule's implementation proceeds. For 
example, if EOIR does not have additional available docket space, USCIS 
will not expand the rule's application at that point.

[[Page 18186]]

4. Comments on Immigration Court Inefficiencies and Bottlenecks
    Comments: Some commenters suggested several ways to address 
inefficiencies and bottlenecks, such as quickly filling existing 
positions, surging staffing to the courts, and requesting funding from 
Congress to increase the number of immigration court interpreters, 
support staff, IJs, BIA legal and administrative staff, and BIA 
members. Additionally, these commenters suggested pre-hearing 
requirements to narrow issues for trial and to create a process to 
advance cases stuck in the court backlog.
    Response: The Departments acknowledge the commenters' suggestions 
and recommendations to help improve the immigration adjudication 
process as a whole. The commenters' suggestions regarding the hiring 
process, staff surges, and increased funding are beyond the scope of 
this rulemaking. However, DOJ has already implemented or is currently 
implementing a number of measures referenced by the commenters, as 
described below. For example, DOJ has reduced the average IJ hiring 
process from 742 days (over 2 years) in 2017 to 8 to 10 months at 
present. Upon receipt of qualified applicants from the Office of 
Personnel Management (``OPM''), DOJ immediately begins assessment of 
the applicants. DOJ also consistently meets its internal deadlines for 
this process. As a result of these efforts, as of October 2021, DOJ had 
hired 65 new IJs in FY 2021, bringing the total number of IJs to 559. 
See EOIR, Adjudication Statistics: Immigration Judge (IJ) Hiring (Jan. 
2022), https://www.justice.gov/eoir/page/file/1242156/download. DOJ 
continues to focus on filling all vacancies as expeditiously as 
possible.
    DOJ has consistently requested increased funding for additional 
authorized positions. In its FY 2022 budget request, DOJ requested an 
additional 600 authorized positions, to include 300 attorney positions. 
Of the 300 attorney positions, DOJ anticipates hiring 100 new IJs and 
support staff. See DOJ, FY 2022 Budget and Performance Summary: 
Executive Office for Immigration Review (Aug. 20, 2021), https://www.justice.gov/jmd/page/file/1399026/download. DHS also requested 
funding appropriations to meet the increased workload in the 
immigration courts and ameliorate staffing budgetary shortfalls. For FY 
2022, DHS requested 100 additional ICE litigator positions to prosecute 
the removal proceedings initiated by DHS, consistent with 6 U.S.C. 
252(c). See DHS, ICE Budget Overview: FY2022 Congressional 
Justification at ICE-O&S-22, https://www.dhs.gov/sites/default/files/publications/u.s._immigration_and_customs_enforcement.pdf.
    In new 8 CFR 1240.17(f)(1)-(3), the IFR establishes certain pre-
hearing requirements for individuals in streamlined section 240 
proceedings. Establishing pre-hearing requirements for all cases, 
however, is beyond the scope of this rulemaking. DOJ reiterates that 
IJs may issue orders for pre-hearing statements. 8 CFR 1003.21(b), (c). 
Further, EOIR's case flow processing model, which applies to certain 
non-detained cases with representation, incorporates short matter 
hearings or pre-trial conferences for cases that are not yet ready for 
trial, as appropriate. See EOIR, PM 21-18: Revised Case Flow Processing 
Before the Immigration Courts (Apr. 2, 2021), https://www.justice.gov/eoir/filing-deadlines-non-detained-cases; see also EOIR, DM 22-04: 
Filing Deadlines in Non-Detained Cases (Dec. 16, 2021), https://www.justice.gov/eoir/book/file/1456951/download (amending PM 21-18).

F. Statutory and Regulatory Requirements

1. Impacts and Benefits (E.O. 12866 and E.O. 13563)
a. Methodology
    Comments: A commenter referenced the NPRM statement that the 
agencies cannot accurately estimate the benefits to the agencies. 
Additionally, the commenter referenced several specific cost estimates 
and case numbers from the NPRM and reasoned that the numbers are now 
incorrect because more cases have been added since then, causing an 
increase in cost and resulting in less financial efficiency for the 
rule.
    Response: USCIS acknowledges the increasing backlog and agrees that 
it can have an impact on credible fear asylum applicants, their 
families, and support networks. As stated in the NPRM, this rule is 
expected to slow the growth of EOIR's backlog and allow EOIR to work 
through its current backlog more quickly. First, the rule will allow 
DHS to process more noncitizens encountered at or near the border 
through expedited removal--rather than placing them into section 240 
removal proceedings--thereby quickly and efficiently securing removal 
orders for those who do not make a fear claim or who receive a negative 
credible fear determination. Second, this rule is estimated to reduce 
EOIR's overall credible fear workload by at least 15 percent. This 
estimate is based on the average of EOIR asylum grant data over the 
past five years for cases originating with a credible fear claim.\95\ 
Under this IFR, grants of asylum for such cases would generally be made 
by USCIS without involvement by EOIR (setting aside those cases in 
which asylum is granted after referral to a streamlined section 240 
proceeding). Because the Departments expect that USCIS's asylum grant 
rate will be approximately the same as EOIR's, approximately 15 percent 
of cases originating in credible fear interviews will no longer 
contribute to EOIR's workload. Third, the above calculation sets a 
lower bound on EOIR's expected workload reduction, as it does not 
account for efficiencies that may be realized in cases that are 
referred to EOIR for streamlined section 240 proceedings. In these 
three ways, the rule will enable IJs to focus efforts on other high-
priority work, including backlog reduction. Moreover, for noncitizens 
who are placed into the process established by this IFR, the 
Departments expect that asylum decisions will be reached faster than if 
they were to go through the current process with EOIR.
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    \95\ See supra note 57 (discussing IJs' and asylum officers' 
similar approval rates on the merits of the asylum claim). Based on 
the five-year (FY 2017 through FY 2021) average, an estimated 15 
percent of the total number of EOIR asylum cases completed 
originating from credible fear screening were granted asylum. See 
EOIR, Adjudications Statistics: Asylum Decision and Filing Rates in 
Cases Originating with a Credible Fear Claim (Jan. 19, 2022), 
https://www.justice.gov/eoir/page/file/1062976/download. 
Calculation: FY 2017 to FY 2021 grant rates (14.02 percent) + (16.48 
percent) + (15.38 percent) + (16.60 percent) + 14.32 percent)/5 = 15 
percent average (rounded).
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    Unfortunately, not all benefits can be quantified at this time, as 
the Departments acknowledged in the NPRM and affirm in this IFR. 
Benefits driven by increased efficiency would enable some asylum-
seeking individuals to move through the asylum process more 
expeditiously than through the current process, with timelines 
potentially decreasing significantly, thus promoting both human dignity 
and equity. Adjudicative efficiency gains and changes to the regulatory 
standard for consideration for parole could lead to individuals 
spending less time in detention, which would benefit the Government, 
considering its limited resources and inability to detain all those 
apprehended, as well as the affected individuals, who would be able to 
continue to prepare for and pursue relief or protection outside the 
confines of a detention setting.
b. Population
    Comments: A commenter asserted that the 75,000 to 300,000 range of

[[Page 18187]]

people cited in the NPRM who would receive credible fear determination 
does not include the ``2019 DHS expansion of the expedited removal 
process to the full extent authorized by statute.''
    Response: The Departments disagree that the population cited in the 
NPRM underestimates the number of people who would receive credible 
fear determinations. Although there is no way to predict exact future 
filing volumes, USCIS determined the population expected to be affected 
by this rule to be the average number of credible fear completions 
processed annually by USCIS (71,363, see Table 3). However, as changes 
in credible fear cases and asylum in general can be driven by multiple 
factors that are difficult to predict, USCIS provided estimates for 
potential populations above and beyond the current number of annual 
credible fear completions. At present, the estimated lower bound of 
75,000 is greater than current annual average of completions, and USCIS 
has estimated a maximum population of 300,000 people who could be 
impacted to account for variations and uncertainty in the future 
population. Although the 2019 DHS expansion of the expedited removal 
process is currently in place, President Biden, in his E.O. on 
Migration, has directed DHS to consider whether to modify, revoke, or 
rescind the expansion. It is unknown when or if the expansion would be 
rescinded or what other factors outside of this rulemaking may impact 
the size of this population. Therefore, the Departments have done their 
best to provide estimates at varying potential population levels.
c. Costs or Transfers
i. Impacts on the Credible Fear Asylum Population and Support Networks
Fees
    Comments: Several commenters stated that the United States has a 
legal obligation to protect those seeking asylum, and some stated that 
asylum applications should never require a fee. Additionally, many 
commenters said fee increases disproportionately impact low-income 
immigrants and vulnerable populations, including gender-based violence 
survivors. Other commenters stated that increased fees would 
financially harm noncitizens seeking asylum and create a barrier for 
many applicants. An individual commenter suggested that the fee-based 
services of USCIS would endanger the freedoms of U.S. citizens.
    Response: USCIS currently does not charge a fee to apply for 
asylum. This rule is not requiring low-income noncitizens or other 
vulnerable populations to pay a fee for their asylum application to be 
adjudicated. Additionally, fee waivers are currently available for an 
applicant who cannot afford to pay to apply for an immigration benefit 
that requires a fee. The provisions of this IFR are not expected to 
impact any applicant who entered the United States legally and is 
seeking to obtain immigration benefits through the appropriate 
processes or any natural-born or naturalized U.S. citizen not part of 
an asylum applicant's support network.
    Comments: Several commenters referenced the rule's statement that a 
significant investment of resources will be necessary to build up the 
capacity of USCIS to make this new rule fully operational. Several 
commenters urged DHS to secure the necessary resources from Congress to 
the extent possible, rather than through increased fees for applicants.
    Response: The Departments acknowledge these comments and the 
concern they show for the funding of this rule. As the commenters 
state, fees are necessary for USCIS to collect to pay for the work 
USCIS performs in adjudicating applications and petitions for 
immigration benefits. USCIS acknowledged in the NPRM that, if this rule 
were to be funded through a future fee rule, it would increase fees by 
an estimated weighted average between 13 percent and 26 percent, 
depending on volume of applicants. 86 FR 46937. This estimated increase 
would be attributable to the implementation of the asylum officer 
portions of the proposed rule only. USCIS conducts notice-and-comment 
rulemaking to raise fees and increase revenue for such staffing 
actions. Although the substance of the future fee rule is outside of 
the scope of this rule, USCIS currently does not charge a fee to apply 
for asylum. USCIS is exploring all options to provide funding for this 
rule.
Other Impacts
    Comments: A commenter expressed concern that the potential for more 
expedited denials of applications risks making some asylum seekers less 
likely to receive employment authorization while their cases are 
pending.
    Response: This rule is intended to improve the Departments' ability 
to consider the asylum claims of individuals encountered at or near the 
border more promptly while ensuring fundamental fairness. Faster 
processing will lead to timelier case completions for asylum claims, 
including both approvals and denials. Employment authorization is a 
discretionary benefit that USCIS may grant to those who qualify. This 
rule does not change the requirements for employment authorization or 
for asylum, but it may change the amount of time some applicants' cases 
remain pending. Applicants whose asylum claims are approved can work 
immediately.
    Comments: Multiple commenters asserted that the proposed rule will 
do little to address the backlog of cases or improve efficiency. Other 
commenters argued that the rule would divert already scarce agency 
resources away from noncitizens who submit affirmative asylum 
applications in addition to unaccompanied noncitizen minors, over whose 
asylum claims USCIS has initial jurisdiction. Another commenter 
expressed concern that, if USCIS shifted experienced asylum officers 
into this new role, it would slow down existing caseloads due to less 
experienced new hires.
    Response: The Departments disagree with the criticisms from these 
commenters. This rule will allow EOIR to focus efforts on high-priority 
work and will likely contribute to EOIR's efforts to reduce its 
substantial current backlog over time. Ultimately, EOIR will not see 
the cases in which USCIS grants asylum, which the Departments estimate 
as at least a 15 percent reduction in EOIR's overall credible fear 
workload. Over time, this rule stands to reduce the backlog of cases 
pending in immigration courts and will enable faster processing of 
cases originating in credible fear screening--whether asylum is granted 
or denied--than if they were to go through the current process with 
EOIR. USCIS has estimated that it will need to hire approximately 800 
new employees to fully implement the proposed asylum officer interview 
and adjudication process to handle approximately 75,000 cases annually. 
USCIS will not shift asylum officer resources from their current 
workload to implement this program but has explained how it will hire, 
train, and deploy staff specifically dedicated to this program in 
Section IV.B.1.b of this preamble.
    Although addressing the affirmative asylum backlog is outside the 
scope of the rulemaking, the Departments acknowledge the importance of 
doing so and note that USCIS has taken other actions to address this 
priority. These include expanding facilities; hiring and training new 
asylum officers; implementing operational changes to increase 
interviews and case completions and reduce backlog growth; establishing 
a centralized vetting center; and working closely with technology 
partners to develop several tools that

[[Page 18188]]

streamline case processing and strengthen integrity of the asylum 
process.\96\ In addition, on September 30, 2021, Congress passed the 
Extending Government Funding and Delivering Emergency Assistance Act, 
which provides dedicated backlog elimination funding to USCIS for 
``application processing, the reduction of backlogs within asylum, 
field, and service center offices, and support of the refugee 
program.'' Public Law 117-43, sec. 132, 135 Stat. at 351.
---------------------------------------------------------------------------

    \96\ See USCIS, Backlog Reduction of Pending Affirmative Asylum 
Cases: Fiscal Year 2021 Report to Congress (Oct. 20, 2021), https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf.
---------------------------------------------------------------------------

    Comment: A commenter asserted that biometric information collection 
for both EAD submissions and asylum applications is duplicative, time-
consuming, and costly due to the relatively low number of asylum 
offices throughout the country.
    Response: Biometrics information is collected on every individual 
associated with a Form I-589 filing, and for the Form I-765(c)(8) 
category, USCIS started collecting biometrics, and the associated $85 
biometrics service fee, in October 2020. This rule does not change 
biometric collection requirements related to Form I-589 or Form I-765. 
USCIS may still have to require applicants to attend an ASC appointment 
or otherwise obtain their biometrics in support of the asylum 
application following a positive credible fear determination but is 
working to obtain the ability to reuse the biometrics already captured 
by other DHS entities for the asylum application before USCIS.
    Comments: One commenter said that DHS failed to consider the long-
term financial and procedural impact on fee-paying legal immigrants who 
pay USCIS petition fees and that this proposed rule unfairly shifts the 
financial burden from the U.S. taxpayer (DOJ) to lawful immigrants 
(USCIS). The commenter asserted that it is in the best interest of 
those who pay fees to have the money mostly spent on adjudicating their 
petitions, not on humanitarian interests. The commenter argued that the 
United States should have funded the operation, not lawful immigrants, 
and that funding could have been used on projects such as e-filing 
systems and process improvements instead. The commenter asserted that 
the proposal harms fee-paying immigrants, such as those with master's 
and doctoral degrees in the STEM (science, technology, engineering, and 
mathematics) fields who are needed for the United States' international 
competitiveness. The commenter suggested that DOJ hire more IJs or that 
funding should come from Congress or by charging asylum seekers in 
expedited removal a fee that fully covers the cost to adjudicate their 
case.
    Response: USCIS already performs humanitarian work through credible 
and reasonable fear screenings, asylum interviews, and refugee 
processing for which the costs are covered through fees paid by 
applicants and petitioners. Should this rule be funded through a future 
fee rule, the financing would be no different. This rule is not 
requiring fee-paying immigrants with master's and doctoral degrees in 
the STEM field to take on the full burden of this new program. Although 
some applicants who fall into these categories may face increased fees 
under a future fee rule, historically, changes to fees are spread 
across a variety of applicants and petitioners and are fully outlined 
in a notice-and-comment rulemaking.
    Comment: A commenter asserted that the NPRM would cause significant 
harm to its mission and programming and to the clients it serves. It 
stated that it will need to make significant changes in its programming 
to provide meaningful representation and pro bono services and may have 
to divert more resources to represent asylum seekers in appeals. 
Additionally, the commenter asserted, the fast-tracking of interviews 
and the limitations on attorney representation during the interviews 
would significantly hinder its ability to provide legal services in a 
timely and meaningful manner. As a result, it would have a smaller 
population it could represent in the United States. Without access to 
counsel, it asserted, asylum seekers would be less likely to prevail on 
the merits of their claims. The commenter alleged that the consequences 
of these proposed changes would be devastating for tens of thousands of 
refugees whom the United States has committed to protecting.
    Response: The Departments acknowledge the commenter's concern but 
disagree that this rule will negatively impact asylum seekers in the 
manner the commenter predicts. This rule is intended to improve the 
Departments' ability to consider the asylum claims of individuals 
encountered at or near the border more promptly while ensuring 
fundamental fairness. This rule does not change the requirements for 
asylum applicants or the evaluation criteria that are used during 
adjudication.
    Prompt adjudication of these claims will benefit asylum seekers, 
the Departments, and the public. The Departments understand that 
applicants will need time to review their applications and supporting 
documentation, consult with representatives, and prepare for their 
Asylum Merits interviews before USCIS asylum officers. At the same 
time, the underlying purpose of this rulemaking is to establish a 
process for promptly adjudicating cases that heretofore have been drawn 
out for months or even years before EOIR. To balance the efficiency 
goals of the present rule with the fairness and due process concerns 
raised by commenters and shared by the Departments, the Departments are 
clarifying at 8 CFR 208.9(a)(1) that there will be a minimum of 21 days 
between the service of the positive credible fear determination on the 
applicant and the date of the scheduled Asylum Merits interview. This 
time frame mirrors the time frame provided to applicants in the 
affirmative asylum process, where asylum interviews are generally 
scheduled, and interview notices are mailed to applicants, 21 days in 
advance of the asylum interview date. This rule does not limit access 
to counsel for asylum applicants. To the contrary, 8 CFR 208.9(b) 
provides that ``[t]he applicant may have counsel or a representative 
present'' at the asylum interview, and 8 CFR 208.9(d)(1) provides the 
applicant's representative an opportunity to make a statement, comment 
on the evidence presented, and ask follow-up questions.
    Moreover, the Departments are forgoing the IJ review procedure 
proposed by the NPRM. Rather, applicants who are not granted asylum 
after a hearing conducted by the asylum officer will be placed in 
streamlined section 240 removal proceedings. Although these proceedings 
will be substantially streamlined relative to ordinary section 240 
proceedings, the Departments have designed a process that is intended 
to facilitate and preserve access to counsel and ensure that 
noncitizens receive a full and fair hearing.
    First, noncitizens subject to these procedures who have not secured 
counsel by the time of their Asylum Merits interview will continue to 
have a meaningful opportunity to secure counsel during removal 
proceedings. The IFR provides for a 30-day gap between the asylum 
officer's decision not to grant asylum and the noncitizen's master 
calendar hearing in immigration court, during which time the noncitizen 
may seek counsel. At the master calendar hearing, IJs must advise 
unrepresented noncitizens of their rights in removal section 240 
removal proceedings, including their right to

[[Page 18189]]

representation and the availability of pro bono legal services, and 
provide a list of pro bono legal service providers. INA 240(b)(4), 8 
U.S.C. 1229a(b)(4); 8 CFR 1240.10. The noncitizen will have an 
additional 30 days before the status conference to seek counsel without 
needing to request a continuance. A noncitizen who remains 
unrepresented at the status conference may request a continuance for 
good cause shown to secure counsel and may receive such continuances 
for up to an additional 30 days. Matter of C-B-, 25 I&N Dec. at 889 
(``In order to meaningfully effectuate the statutory and regulatory 
privilege of legal representation . . . , the [IJ] must grant a 
reasonable and realistic period of time to provide a fair opportunity 
for a respondent to seek, speak with, and retain counsel.''). The IFR 
permits further continuances to secure counsel in appropriate 
circumstances even under the rule's heightened continuance 
requirements, which apply after 30 days of continuances have been 
granted. See, e.g., Usubakunov, 16 F.4th at 1305 (denial of a 
noncitizen's motion for a continuance to permit his attorney to be 
present at his merits hearing amounted to violation of his statutory 
right to counsel). Accordingly, the IFR provides a significant and 
reasonable amount of time for noncitizens to obtain counsel and allows 
for continuances to secure representation in appropriate circumstances.
    Second, the IFR recognizes that a noncitizen might not obtain 
counsel before the beginning of proceedings and therefore allows for 
continuances or extensions of filing deadlines where counsel needs 
additional time to prepare, so long as counsel demonstrates that the 
need for the continuance or extension satisfies the applicable 
standard. The rule also provides flexibility to counsel by allowing 
noncitizens to file additional documents and supporting evidence after 
the filing deadline when certain conditions are met.
    Third, the rule provides a meaningful opportunity for both 
represented and unrepresented noncitizens to present their claims 
during streamlined section 240 removal proceedings. The rule is 
consistent with IJs' duty to develop the record, and various provisions 
of the rule particularly enable IJs to do so in cases involving pro se 
respondents. In cases where the noncitizen is represented, the IFR is 
designed to streamline proceedings by narrowing the issues to be 
adjudicated, which the Departments anticipate will benefit all parties 
and their counsels as well as EOIR.
ii. Impacts on U.S. Workers, Companies, Economy
    Approximately five commenters provided specific feedback about the 
impacts on U.S. workers, companies, and the economy.
    Comments: A commenter expressed concern about the fiscal impact on 
American taxpayers and stated that the proposed rule is not clear about 
how USCIS will cover the costs related to the rule. Another commenter 
requested that DHS provide estimates of the proposal's impact on the 
number of immigrants and asylum seekers intending to enter the country 
and the costs associated with any increased immigration. The commenter 
also requested an estimate of how much the humanitarian effort of 
accepting asylees would cost the average U.S. citizen and expressed 
concern about immigration's impact on the country's limited financial 
resources.
    Response: The work performed by USCIS is primarily paid for through 
fees collected from applicants or petitioners requesting immigration or 
naturalization benefits.\97\ USCIS acknowledged in the NPRM that, if 
this rule were to be funded through a future fee rule, it would 
increase fees by an estimated weighted average of between 13 percent 
and 26 percent, depending on volumes of applicants. 86 FR 46937. USCIS 
conducts notice-and-comment rulemaking to raise fees and increase 
revenue for such staffing actions. Although speculating on future fees 
is outside of the scope of this rule, USCIS currently does not charge a 
fee to apply for asylum. USCIS is exploring all options to provide 
funding for this rule.
---------------------------------------------------------------------------

    \97\ See USCIS, Budget, Planning and Performance (May 28, 2021), 
https://www.uscis.gov/about-us/budget-planning-and-performance.
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    The population expected to be affected by this rule is the average 
number of credible fear completions processed annually by USCIS 
(71,363, see Table 3), split between an average of 59,280 positive-
screen cases and 12,083 negative-screen cases. This can be considered 
the maximum ``encompassing'' population that could be impacted. 
However, the Departments take into consideration larger populations to 
account for variations and uncertainty in the future population. 
Regarding the costs associated with increased immigration, this rule 
focuses on the direct costs to USCIS related to staffing needs to 
absorb the new workload it will take on from EOIR. Further, the 
Departments recognize the role of support networks, which could include 
public and private entities and family and personal friends, legal 
services providers and advisors, religious and charity organizations, 
State and local public institutions, educational providers, and non-
governmental organizations (``NGOs''), but it is not possible to place 
a monetary value on such support. The rule does not change the 
substantive eligibility standard for asylum or the evidentiary 
requirements. Therefore, USCIS has no reason to expect that the rule 
will have a significant effect on the number of individuals who may be 
granted asylum. Additionally, individuals whose asylum claims are 
pending are not provided any special humanitarian aid funded by U.S. 
taxpayers.
    Comments: Several commenters speculated that, in the current 
economic situation of high inflation and low job-growth, the influx of 
working-age immigrants may create wage decreases impacting low-wage 
American workers. Another commenter cited a study and the testimony of 
a former member of Congress indicating that immigrants with low 
education and skills may compete with the most vulnerable Americans, 
which would assertedly lower wages and benefit businesses.
    Response: The commenters suggesting that increased immigration, 
particularly of low-skilled immigrants, to the United States may 
adversely impact the wages of low-income Americans provide no evidence 
indicating such an impact would be the most likely outcome of this 
rulemaking. Furthermore, these comments blur the distinction between 
legal and illegal immigration and provide little evidence on the impact 
of asylum seekers in particular on wages.\98\
---------------------------------------------------------------------------

    \98\ Economic research indicates that immigration in general has 
had little effect on the distribution of wages in the United States 
in recent decades. See Jane G. Gravelle, Cong. Research Serv., 
R46212, Wage Inequality and the Stagnation of Earnings of Low-Wage 
Workers: Contributing Factors and Policy Options (Feb. 5, 2020), 
https://crsreports.congress.gov/product/pdf/R/R46212/3 (last visited 
Mar. 5, 2022).
---------------------------------------------------------------------------

    Faster adjudications for applicants who receive a positive credible 
fear determination mean they may enter the labor market sooner under 
this rule than they would currently. Conversely, some asylum seekers 
that currently enter the labor market with a pending asylum application 
will no longer enter the labor market under this rule if they receive a 
negative decision on their asylum claim at an earlier date. Therefore, 
at this time, it is unknown exactly how this rule will impact 
employment authorization for this population or what impacts such 
authorizations would have on the labor market. Because the ``(c)(8)'' 
EAD does not include or require, at the initial or

[[Page 18190]]

renewal stage, any data on employment, and since it does not involve an 
associated labor condition application, we have no information on 
wages, occupations, industries, or businesses that may employ such 
workers. Therefore, USCIS cannot confirm the type of work that asylum 
seekers obtain or the wages they earn.
    The Bureau of Labor Statistics (``BLS'') publishes statistics on 
employment that can provide insight into the current economic 
situation. Total nonfarm payroll employment rose by 210,000 in November 
2021, while the unemployment rate fell to 4.2 percent and the number of 
unemployed persons fell by 542,000 to 6.9 million.\99\ BLS also 
publishes job openings, a measure of the unmet demand for labor. In 
November 2021, there were 10.6 million job openings.\100\ Meanwhile, 
BLS' quarterly employment cost index shows that wages and salaries 
increased for civilian, private industry, and State and local 
government workers in September 2021.\101\ The arguments that low job 
growth or the influx of working-age immigrants may create wage 
decreases impacting low-wage American workers are speculative and not 
supported by the data.
---------------------------------------------------------------------------

    \99\ BLS, The Employment Situation--November 2021 (Dec. 3, 
2021), https://www.bls.gov/news.release/archives/empsit_12032021.pdf 
(last visited Feb. 27, 2022).
    \100\ BLS, Job Openings and Labor Turnover--November 2021 (Jan. 
4, 2022), https://www.bls.gov/news.release/archives/jolts_01042022.pdf (last visited Feb. 27, 2022).
    \101\ BLS, Employment Cost Index--September 2021 (Oct. 29, 
2021), https://www.bls.gov/news.release/archives/eci_10292021.pdf 
(last visited Feb. 27, 2022).
---------------------------------------------------------------------------

iii. Impacts on Federal Government
Impacts on U.S. Citizenship and Immigration Services
    Approximately 15 submissions provided feedback about the impacts to 
USCIS.
    Comments: Many commenters asserted that the proposed rule will do 
little to address case backlogs at either EOIR or USCIS and will 
require extensive resources from USCIS. Several commenters argued that 
the financial and administrative burden will shift from EOIR to USCIS. 
Multiple commenters expressed concern that resources will be drawn away 
from the current process in order to conduct training for and implement 
the new process, which will increase backlogs. Another commenter 
suggested that that newly hired asylum officers should be deployed to 
the existing asylum offices to reduce the already existing backlogs.
    Response: EOIR's caseload includes a wide range of immigration and 
removal cases. Allowing asylum officers to take on cases originating in 
the credible fear process is expected to reduce delays across all of 
EOIR's docket, as well as reduce the time it takes to adjudicate these 
protection claims. By shifting that caseload to USCIS, the rule will 
enable IJs to focus efforts on other high-priority work.
    USCIS acknowledges that it will take time and money to hire and 
train new asylum officers, but it does not anticipate shifting current 
resources to do so. Hiring and training asylum officers is already a 
part of regular USCIS operations. USCIS does not anticipate increased 
backlogs as a direct result of this rule. As stated in the NPRM and in 
this IFR, there is the potential for backlogs to be mitigated, though 
USCIS cannot predict the timing and scope of such potential changes 
with accuracy. Staffing levels and priorities across the agency are 
continuously monitored and actions are taken as needed.
    Comments: Several commenters asserted that training asylum officers 
would increase financial burden on USCIS. Additionally, multiple 
commenters reasoned that, since USCIS funds itself based on fees, and 
because fees will not be charged for this new process, USCIS will not 
have enough funding to cover training and implementation of the new 
rule. Several commenters expressed concern that the proposed rule's 
economic analysis did not state USCIS's ability to pay for the 
additional costs or address other impacts to USCIS, such as appeals or 
accessibility issues due to the limited number of asylum offices and 
the need for expanded teleconferencing technology for remote hearings.
    Response: As outlined in the NPRM and affirmed in this IFR, this 
rule does have associated costs, but it also has benefits (see Table 
1). As previously stated, if the medium- and high-volume bands of 
150,000 and 300,000 asylum applicants were to be funded through a 
future fee rule, it would increase fees by an estimated weighted 
average of 13 percent and 26 percent respectively. This estimated 
increase would be attributable to the implementation of the asylum 
officer portions of the proposed rule only. USCIS conducts notice-and-
comment rulemaking to raise fees and increase revenue for such staffing 
actions. USCIS is exploring all options to provide funding for this 
rule.
    The Departments do not expect this rule to result in an increase in 
appeals or the number of individuals requiring access to an asylum 
office, but they do recognize that the timing of appeals and asylum 
interviews may change because of this rule. As part of the estimated 
USCIS FY 2022 and FY 2023 funding requirements by volume of credible 
fear referrals (see Tables 7 and 8), USCIS included estimated costs 
associated with needs such as interpreter and transcription services, 
facilities, IT case management, and other contracts, supplies, and 
equipment. The Departments agree with the commenters that there will be 
expanded technology needs to implement this rule.
    Comments: A commenter stated that moving the funding type from an 
appropriations-funded model to a fee-based enterprise model would 
result in USCIS's dependency on high fees to generate revenue.
    Response: USCIS agrees generally that, if funding is sourced to 
fees, higher fees over time are necessary to generate revenue in line 
with costs, but disagrees that fee-based funding would generate a 
harmful dependency. USCIS relies on fees to fund almost all the work 
the agency performs. USCIS is exploring all options to provide funding 
for this rule. However, if the rule is to be funded through a future 
fee rule, it would increase fees by an estimated weighted average 
between 13 percent and 26 percent, depending on volumes of applicants.
    Comments: A commenter stated that the rule does not make an 
appropriate comparison for the proposed new procedures. Specifically, 
the NPRM stated that USCIS would have to hire approximately 800 new 
employees and spend approximately $180 million to handle approximately 
75,000 cases per year if the rule was implemented. The commenter said 
the rule improperly compares whether the proposed rule, backed with 
$180 million in new funding, would provide more fair and expeditious 
decisions than the existing system that receives no additional funding. 
The commenter said the appropriate comparison is whether the proposed 
rule, backed with $180 million in new funding, would provide more fair 
and expeditious decisions when compared with the existing system if the 
existing system were backed with $180 million in new funding.
    Response: The Departments have determined that important procedural 
changes are needed to improve the system of asylum adjudication for 
cases originating in credible fear screening, and that simply adding 
more money to the existing procedures would not yield the same benefits 
in fairness and reduced delays. Implementing these important procedural 
changes will involve costs for, among other things, personnel and 
training. It is not possible

[[Page 18191]]

to place a monetary value on fairness and expeditiousness in the 
process of adjudicating the protection claims of noncitizens arriving 
at the border. However, to the extent that the $180 million amount 
referenced above would facilitate the implementation of the rule, the 
Departments believe that it will enable greater benefits in terms of 
fair and expeditious decisions than the same amount applied to the 
existing system.
Impacts on the Executive Office for Immigration Review
    Approximately four submissions provided feedback about the impacts 
on EOIR.
    Comments: A commenter worried that the proposed rule will do little 
address case backlogs and will require extensive resources from EOIR. 
Another commenter asserted that the proposed rule will further burden 
the immigration courts and create delays. A commenter argued that, 
although the proposed rule may limit the growth of the IJ docket, it 
does not offer any relief to IJs, and it merely moves some cases to 
USCIS, which already has a backlog of cases. A commenter was concerned 
that there is no reason to believe that conducting interviews in 
detention centers would be quicker than the EOIR process because doing 
so does not eliminate duplicative hearings and eliminates access to the 
courts.
    Response: The rule will not directly change how cases that are 
already pending before EOIR are adjudicated. However, as stated in the 
NPRM, this rule is expected to slow the growth of EOIR's backlog and 
allow EOIR to work through its current backlog more quickly. First, the 
rule will allow DHS to process more noncitizens encountered at or near 
the border through expedited removal--rather than placing them into 
section 240 removal proceedings--thereby quickly and efficiently 
securing removal orders for those who do not make a fear claim or who 
receive a negative credible fear determination. Second, as explained 
above at Section IV.F.1.a of this preamble, this rule is estimated to 
reduce EOIR's overall credible fear workload by at least 15 percent. 
Third, the calculation described above sets a lower bound on EOIR's 
expected workload reduction, as it does not account for efficiencies 
that may be realized in cases that are referred to EOIR for streamlined 
section 240 proceedings. In these three ways, the rule will enable IJs 
to focus efforts on other high-priority work, including backlog 
reduction. The Departments agree that the interviews themselves may not 
take less time; however, the overall process for asylum applicants to 
apply, interview, and receive a decision will take less time. 
Adjudicative efficiency gains and revised parole guidelines for case-
by-case consideration could lead to individuals spending less time 
overall in detention, which would benefit the Government, considering 
its limited resources and inability to detain all those apprehended, 
and the affected individuals, who would be able to continue to prepare 
for and pursue relief or protection outside the confines of a detention 
setting. Thus, as stated in the NPRM and in this IFR, there is the 
potential for backlogs to be mitigated, though we cannot predict the 
timing and scope of such potential changes with accuracy.
    Comments: A commenter stated that, in the four months since the 
NPRM was drafted, the EOIR backlog grew by more than 100,000 cases, 
which is already larger than the number of cases (75,000) the proposed 
rule is intended to address. Further, the commenter argued that this 
expansion of duties would address only 5 percent of the overall 
immigration backlog and would require 27 percent of EOIR's overall 
budget.
    Response: The Departments recognize the need to address the growing 
EOIR backlog, which is one of the catalysts for this rule. The NPRM 
developed three population bounds for credible fear screenings, ranging 
from 75,000 as a lower bound to 300,000 as an upper bound to account 
for possible variations in future years. 86 FR 46923. As stated, EOIR 
would not see the cases in which USCIS grants asylum, which the 
Departments estimate will result in at least a 15 percent reduction in 
the number of cases that would normally arrive at EOIR after a positive 
credible fear determination. Such efficiency improvements, in 
conjunction with streamlined review, could benefit applicants and the 
Government, though we cannot make exact predictions germane to these 
changes.
Other Comments on Impacts on the Federal Government
    Approximately four submissions provided other comments on impacts 
on the Federal Government.
    Comments: A commenter asserted that the emphasis on expedited 
removal and accompanying detention is likely to maintain or increase 
extremely high levels of unnecessary spending on detention.
    Response: As stated in the NPRM and affirmed in this IFR, DHS will 
consider paroling detained individuals in the expedited removal 
process, on a case-by-case basis, consistent with the INA and relevant 
regulations and policies. Having considered all comments received on 
the issues of detention and parole, the Departments have determined 
that the current narrow standard should be replaced not with the 
standard proposed in the NPRM but with the standard of 8 CFR 212.5(b). 
That provision describes five categories of noncitizens who may meet 
the parole standard of INA 212(d)(5), 8 U.S.C. 1182(d)(5), based on a 
case-by-case determination, provided they present neither a security 
risk nor a risk of absconding: (1) Noncitizens who have serious medical 
conditions for which continued detention would not be appropriate; (2) 
women who have been medically certified as pregnant; (3) certain 
juveniles; (4) noncitizens who will be witnesses in proceedings being, 
or to be, conducted by judicial, administrative, or legislative bodies 
in the United States; and (5) noncitizens whose continued detention is 
not in the public interest. Expanding the potential for parole out of 
custody for this population is expected to improve the Departments' 
ability to utilize expedited removal for a greater number and more 
diverse category of noncitizens, mitigate associated detention costs, 
and promote the dignity of asylum applicants.
iv. Other Comments on Costs or Transfers
    Approximately three submissions provided other comments on costs or 
transfers.
    Comments: A commenter stated that the proposed rule will be costly 
to noncitizens; ICE attorneys; judges and staff of the immigration 
courts and the BIA; the Office of Immigration Litigation in the 
Department of Justice, which will have to defend the denials of asylum 
and protection appeals in Federal courts; and judges and staff of the 
U.S. Courts of Appeals. Further, the commenter asserted that the 
proposed rule's economic analysis did not reflect costs to the Federal 
judiciary.
    Response: The Departments do not expect this rule to be the cause 
of an increase in the number of appeals to the BIA or petitions for 
review before a U.S. Court of Appeals. Noncitizens who receive a 
negative credible fear determination may seek a de novo review of that 
determination by an IJ but otherwise have no opportunity for further 
appeal. See 8 U.S.C. 1225(b)(1)(B)(iii). The IFR does not change that. 
An applicant whose asylum claim is denied and who is ordered removed 
may appeal the decision to the BIA and further petition for review by a 
U.S. Court of Appeals. This rule does not change the current appeals 
process,

[[Page 18192]]

nor is it expected to result in a greater number of BIA appeals or U.S. 
Court of Appeals petitions for review than would occur otherwise.
    Comments: A commenter asserted that the rule would increase costs 
and time frames for various reasons: interview length will increase; 
asylum officers will be required to write a justification for the 
decision in cases where they do not grant asylum; transcripts of 
hearings will take longer to make; asylum officers will be required to 
read lengthy transcripts; applicants may unfairly be denied a chance to 
appeal if they have to understand and file a notice of appeal; IJs will 
have more paperwork; and counsel will routinely appeal cases in which 
the IJ denied a motion to allow for additional testimony and evidence.
    Response: The Departments estimated the costs of transcription 
services, which are included in Table 8 as their own line item. USCIS 
does not currently estimate asylum interview times because each case is 
unique, and there are a variety of factors outside of this rulemaking 
that may impact the length of an interview. Asylum officers are already 
required to review all documentation submitted by and pertinent to an 
asylum applicant prior to an interview. Likewise, regardless of the 
decision being made, an asylum officer provides a justification for the 
decision, which is then reviewed. This rule does not change the 
requirements for asylum applicants or the evaluation criteria that are 
used during adjudication.
    Comment: Several commenters said the proposed rule would create a 
``massive new USCIS infrastructure,'' the cost of which would be borne 
by other applicants for USCIS benefits.
    Response: USCIS has estimated the staffing resources it will need 
to implement this rule at somewhere between 794 and 4,647 total new 
positions. USCIS acknowledged in the NPRM that if this rule were to be 
funded through a future fee rule, it would increase fees by an 
estimated weighted average between 13 percent and 26 percent, depending 
on volumes of applicants. USCIS is exploring all options to provide 
funding for this rule and will consider the overall costs borne by 
applicants for USCIS benefits in doing so.
    Comments: A commenter requested that the proposed rule be funded by 
taxpayers.
    Response: USCIS is exploring all options to provide funding for 
this rule. USCIS acknowledged in the NPRM that, if this rule were to be 
funded through a future fee rule, it would increase fees by an 
estimated weighted average between 13 percent and 26 percent, depending 
on volumes of applicants. That estimate, however, does not preclude 
USCIS from considering other sources of funding, such as funding from 
taxpayers.
d. Other Comments on Impacts and Benefits of the Proposed Rulemaking
    Comments: Several commenters said the Departments did not analyze 
or discuss the likelihood that the proposed rule's revisions to the 
asylum process would encourage more noncitizens to seek asylum. For 
example, the Departments considered the administrative efficiencies 
expected to be gained from the rule and the expected benefits conferred 
upon non-citizens availing themselves of the asylum process through 
quicker adjudication timelines. But the Departments allegedly failed to 
analyze or discuss whether these changes to the asylum process would in 
fact encourage more noncitizens living abroad to make their way to the 
United States. The commenters asserted that an increase in noncitizens 
seeking to enter the United States will further drive up enforcement 
actions at the Southwest border and increase the statistical likelihood 
of non-meritorious asylum claims and illegal entry overall. The 
commenter argued that MPP, for example, achieved concrete results in 
managing asylum seekers attempting to cross the Southwest border, but 
claimed it was unclear whether the proposed rule would achieve even 
remotely the same results because the Departments failed to analyze 
this issue. At a minimum, the commenter said, the Departments should 
have addressed with specificity whether the proposed rule would be 
expected to decrease or increase the number of noncitizens attempting 
to travel to the United States to seek asylum and explain the basis for 
their conclusions.
    Response: The Departments do not expect this rule to encourage or 
cause an increase in the number of individuals seeking asylum in the 
United States. As explained above, this rule is not expected to create 
any significant new incentives that would drive increased irregular 
migration. To the contrary, by reducing the amount of time a noncitizen 
can expect to remain in the United States with a pending asylum claim 
that originated in credible fear screening, the rule dramatically 
reduces a critical incentive for noncitizens not in need of protection 
to exploit the system. Although eligible individuals may be granted 
asylum sooner, ineligible individuals may be identified and ordered 
removed more quickly. This rule does not change the substantive 
standard for asylum eligibility, and commenters have not identified any 
evident causal mechanism by which the rule as a whole, in context, 
would systematically and substantially incentivize more individuals to 
seek to enter the United States and pursue asylum.
2. Paperwork Reduction Act
    Comments: A commenter requested eliminating Form I-589 in order to 
prevent asylum applicants from facing rejection, delays, or missing the 
deadline because the form was not correctly completed. The commenter 
argued that Form I-589 is burdensome for applicants to complete because 
it is technical and is written in and must be completed in English 
(although most asylum seekers have limited English proficiency). The 
commenter also stated that many asylum seekers do not have legal 
representation while filling out the form, often causing applicants to 
make mistakes and leave required questions blank, which could result in 
rejection of the application.
    Response: The rule addresses the commenter's concern in that 
applicants with a positive credible fear determination who are placed 
into the Asylum Merits process will not have to file a Form I-589. 
Rather, such an applicant's credible fear record will serve as the 
asylum application. This process will also ensure applicants can apply 
for an EAD as soon as possible once the requisite time period has been 
met based on the date of service of a positive credible fear 
determination that serves as the date of filing of an asylum 
application. This streamlined process will not only promote efficiency 
but will also serve the interests of fairness and human dignity while 
simultaneously reducing the burden on asylum support networks and the 
public by ensuring asylum seekers have access to employment 
authorization as quickly as possible. Additionally, the rule will 
promote equity and due process by ensuring that individuals who are 
allowed to remain in the United States for the express purpose of 
having their asylum claims adjudicated after receiving a positive 
credible fear determination do not inadvertently miss the one-year 
filing deadline for asylum after being placed into section 240 removal 
proceedings and failing to defensively file their Form I-589 within the 
first 12 months. The requirement for affirmative asylum applicants and 
defensive asylum applicants in traditional section 240 removal

[[Page 18193]]

proceedings to submit a Form I-589 is outside the scope of this 
rulemaking.
3. Other Comments on Statutory and Regulatory Requirements
    Approximately four submissions provided other feedback on statutory 
and regulatory requirements.
National Environmental Policy Act (``NEPA'')
    Comments: Two commenters expressed concerns that the Departments 
have not adequately complied with NEPA, 42 U.S.C. 4321 et seq., by 
failing to specifically consider certain potential environmental 
impacts of this rule. The comments focused primarily on population 
growth impacts. Commenters also raised broader concerns about the 
adequacy of DHS's NEPA compliance procedures as set forth in the 
relevant DHS implementing directive and instruction manual.
    Response: Even assuming that such impacts are amenable to 
meaningful analysis in some contexts, any such analysis with respect to 
this rule would be fundamentally speculative in nature. This rule will 
not alter immigration eligibility criteria or result in an increase in 
the number of individuals who may be admitted or paroled into the 
United States. Rather, this rule changes specific procedures for 
adjudicating certain asylum claims pursuant to existing standards and 
shifts certain adjudicative responsibilities from DOJ to DHS. The 
commenters offered no basis to conclude that such changes would result 
in environmental impacts susceptible to meaningful analysis. This rule 
will not result in any major Federal action that will significantly 
affect the human environment and is not part of a larger action. As 
discussed in the NPRM and in the NEPA section below, the rule falls 
squarely within Categorical Exclusions A3(a) and A3(d) in DHS 
Instruction Manual 023-01-001-01. See DHS, Instruction Manual 023-01-
001-01, Revision 01, Implementation of the National Environmental 
Policy Act (NEPA) A-1, A-2 (Nov. 6, 2014), https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf (Instruction Manual 023-01). 
Commenters' broader concerns about the adequacy of DHS's NEPA 
compliance procedures are outside the scope of this rulemaking.
Federalism
    Comments: Commenters asserted that the proposed rule failed to 
properly consider and analyze federalism concerns. The commenters 
stated that, contrary to the Departments' conclusion that the proposed 
rule insubstantially impacts States and presents no substantial 
federalism concerns, the proposed rule would have wide-ranging effects 
on States' finances and resources. Finally, the commenters argued that 
the Departments should reassess federalism implications and republish 
the proposed rule.
    In contrast, another commenter asserted that the proposed rule does 
not have sufficient federalism implications to require a federalism 
summary impact statement. The commenter referenced section 6 of 
Executive Order 13132 and stated that the proposed rule would not have 
direct effect on the States, the relationship between the National 
Government and the States, or the distribution of power and 
responsibilities among the different levels of government.
    Response: The Departments did consider federalism concerns and 
determined that the rule would not have a substantial direct effect on 
the States, on the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. 86 FR 46939. The Departments also 
determined the rule is within the purview and authority of the 
Departments and does not directly affect States. Id. As detailed above, 
the rule's primary consequences are to authorize a new procedure by 
which asylum claims originating in credible fear screening may be 
adjudicated and to authorize a revision to the regulations governing 
parole of noncitizens in expedited removal. The latter change will 
enable DHS to place more noncitizens encountered at or near the border 
into expedited removal, allowing such noncitizens who do not make a 
fear claim or who are determined not to have a credible fear of 
persecution or torture to be ordered removed more swiftly.
    The Departments further note that immigration generally is an area 
of Federal regulation in which the Federal Government, rather than the 
States, has the preeminent role. See, e.g., Toll v. Moreno, 458 U.S. 1, 
10-12 (1982) (``Our cases have long recognized the preeminent role of 
the Federal Government with respect to the regulation of aliens within 
our borders.''); Truax v. Raich, 239 U.S. 33, 42 (1915) (``The 
authority to control immigration--to admit or exclude aliens--is vested 
solely in the Federal government.''); accord Sure-Tan, Inc. v. NLRB, 
467 U.S. 883, 897 (1984) (explaining that third parties lack a 
cognizable interest ``in procuring enforcement of the immigration 
laws'' against third parties in particular ways).
Unfunded Mandate Reform Act (``UMRA'')
    Comments: Several commenters asserted that the proposed rule failed 
to analyze whether an unfunded mandate was being imposed on the States. 
The commenters wrote that the Departments addressed the requirements of 
the UMRA by denying any impact. However, the commenters raised concerns 
and provided examples of how States may incur costs associated with 
undocumented noncitizens or noncitizens who have been granted asylum. 
Further, the commenters said that, contrary to the requirements of the 
UMRA, the Departments failed to allow elected leaders in State, local, 
and Tribal government to provide input on the proposed rule.
    Response: The Departments disagree with these comments. The UMRA is 
intended, among other things, to curb the practice of imposing unfunded 
Federal mandates on State, local, and Tribal governments. As stated in 
the NPRM, although this rule is expected to exceed the $100 million 
expenditure in any one year when adjusted for inflation ($169.8 million 
in 2020 dollars based on the Consumer Price Index for All Urban 
Consumers (``CPI-U'')),\102\ the Departments do not believe this rule 
would impose any unfunded Federal mandates on State, local, or Tribal 
governments, in the aggregate, or on the private sector. The term 
``Federal mandate'' means a Federal intergovernmental mandate or a 
Federal private sector mandate. See 2 U.S.C. 1502(1), 658(6). The term 
``Federal intergovernmental mandate'' means, in relevant part, 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 2

[[Page 18194]]

U.S.C. 658(5). The term ``Federal private sector mandate'' means, in 
relevant part, a provision that would impose an enforceable duty upon 
the private sector (except as a condition of Federal assistance or a 
duty arising from participation in a voluntary Federal program). See 2 
U.S.C. 658(7).
---------------------------------------------------------------------------

    \102\ See BLS, Historical Consumer Price Index for All Urban 
Consumers (CPI-U): U.S. City Average, All Items, By Month, https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202103.pdf (last visited Feb. 28, 2022). Calculation of inflation: 
(1) Calculate the average monthly CPI-U for the reference year 
(1995) and the most recent current year available (2020); (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 2020-Average monthly CPI-U for 1995)/(Average monthly CPI-
U for 1995)] * 100 = [(258.811-152.383)/152.383] * 100 = (106.428/
152.383) *100 = 0.6984 * 100 = 69.84 percent = 69.8 percent 
(rounded). Calculation of inflation-adjusted value: $100 million in 
1995 dollars * 1.698 = $169.8 million in 2020 dollars.
---------------------------------------------------------------------------

    This rule does not contain such a 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 their voluntary choices and would not be a 
consequence of an enforceable duty. Similarly, any costs or transfer 
effects on State and local governments would not result from a Federal 
mandate as that term is defined under the UMRA.\103\ The requirements 
of the UMRA, therefore, do not apply to this rule; accordingly, the 
Departments have not prepared an UMRA statement.
---------------------------------------------------------------------------

    \103\ See 2 U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

    Comments: Several States asserted that States and local communities 
``disproportionately bear the social and economic costs of illegal 
immigration'' because immigrants may arrive with ``little to no 
warning,'' a criminal record, and little to no resources, with States 
ultimately bearing the cost of providing assistance for such 
individuals. Additionally, two commenters stated that noncitizens 
granted the legal status of asylee are entitled to certain public 
benefits, such as Social Security Income, Medicaid, welfare, food 
stamps, employment authorization, a driver's license, education, and 
healthcare, which Americans rely on.
    Response: To the extent that States and local communities bear 
social or economic costs associated with what the commenters term 
``illegal immigration,'' or with noncitizens entering the United States 
without documentation and seeking asylum, those are not costs 
associated with this rule. As explained above, this rule is not 
expected to create any significant new incentives that would drive 
increased irregular migration. To the contrary, by reducing the amount 
of time a noncitizen can expect to remain in the United States with a 
pending asylum claim, the rule dramatically reduces a critical 
incentive for noncitizens not in need of protection to exploit the 
system.
    Moreover, with regard to the asserted ``social cost,'' commenters 
cited figures associated with noncitizens within the United States who 
are taken into ICE custody and thus improperly conflated the 
characteristics of such noncitizens with the characteristics of 
noncitizens encountered at or near the border seeking asylum.\104\ The 
commenters' assumptions and generalizations about the characteristics 
of noncitizens seeking asylum in the United States, including their 
assumptions about the extent to which this population relies on public 
services or support rather than private support networks, are not 
supported by evidence.
---------------------------------------------------------------------------

    \104\ For example, commenters cited ICE's FY 2020 Enforcement 
and Removal Operations Report for the proposition that 90 percent of 
the noncitizens administratively arrested by ICE in FY 2020 had 
either criminal convictions or criminal charges pending. But, as 
that report makes clear, in FY 2020, due to the COVID-19 pandemic, 
ICE ``narrowly focus[ed] enforcement efforts on public safety risks 
and individuals subject to mandatory detention based on criminal 
grounds.'' See ICE, U.S. Immigration and Customs Enforcement Fiscal 
Year 2020 Enforcement and Removal Operations Report 4 (2020), 
https://www.ice.gov/doclib/news/library/reports/annual-report/eroReportFY2020.pdf.
---------------------------------------------------------------------------

    With regard to the asserted economic or fiscal cost, commenters 
referenced public benefits and public services, as well as State 
expenditures on border security and policing. However, as explained in 
more detail above, estimating the net fiscal impact of immigration is a 
complex calculation that requires consideration of not only Government 
expenditures on public benefits and services but also the various tax 
contributions the noncitizens in question make to public finances. 
Commenters did not provide information or data that would allow for a 
reliable estimation of the net fiscal impact associated with relevant 
populations or associated with any marginal change in relevant 
populations.\105\
---------------------------------------------------------------------------

    \105\ Much of the information commenters did cite, moreover, was 
not specific to recently arrived noncitizens pursuing asylum claims 
but instead attempted to estimate--for example--total education 
costs associated with students with limited English proficiency, 
total education costs associated with all children living in a 
household with an undocumented person, or total costs certain States 
have incurred for law enforcement agencies conducting public safety 
and security activities near the Southwest border. See Marc Ferris 
and Spencer Raley, The Elephant in the Classroom: Mass Immigration's 
Impact on Education, Federation for American Immigration Reform 6 
(Sept. 2016), https://www.fairus.org/sites/default/files/2017-08/FAIR-Education-Report-2016.pdf (last visited Feb. 28, 2022); Matthew 
O'Brien, Spencer Raley, and Jack Martin, The Fiscal Burden of 
Immigration on United States Taxpayers, Federation for American 
Immigration Reform 1 (2017), https://www.fairus.org/sites/default/files/2017-09/Fiscal-Burden-of-Illegal-Immigration-2017.pdf (last 
visited Feb. 28, 2022).
---------------------------------------------------------------------------

    The Departments have acknowledged the role of support networks in 
supporting noncitizens affected by this rule. Notably, this rule's 
reduction in adjudication delays may allow some noncitizens to become 
eligible for employment authorization--and enter the labor market--
sooner under this rule than they currently would, which could lead to 
less reliance on those support networks. Individuals granted asylum may 
work immediately.
Executive Order 13990
    Comments: A commenter stated that the proposed rule does not 
mention Executive Order 13990, which requires agencies to use an 
interim estimate of the social costs of greenhouse gases when 
monetizing the value of changes regulations. The commenter said it is 
clear that the Departments did not refer to the Executive order during 
rulemaking, and that it is arbitrary and capricious for agencies to 
follow the Executive order only when the Biden Administration dislikes 
a policy.
    Response: Executive Order 13990 seeks to protect public health and 
the environment and restore science to tackle the climate crisis. The 
Departments agree with the commenter that they did not mention or refer 
to E.O. 13990 for this rulemaking. This rule establishes a new 
procedure by which individuals who receive a positive credible fear 
determination may have their claims for asylum adjudicated by USCIS in 
the first instance, rather than EOIR bearing the full responsibility 
for adjudicating such claims. The changes made through this rule are 
within the purview and authority of the Departments and do not have any 
direct or substantial link to greenhouse gas emissions. Moreover, the 
rule does not otherwise relate to the subject matter of E.O. 
13990.\106\
---------------------------------------------------------------------------

    \106\ In addition, a district court has enjoined certain 
agencies from implementing Section 5 of E.O. 13990. See Louisiana v. 
Biden, No. 2:21-cv-1074, 2022 WL 438313 (W.D. La. Feb. 11, 2022), 
appeal filed, No. 22-30087 (5th Cir. Feb. 19, 2022).
---------------------------------------------------------------------------

G. Comments Outside of the Scope of This Rulemaking

    The Departments received many comments outside of the scope of this 
rulemaking. Because these comments are outside of the relevant scope, 
the Departments are not providing responses to these comments or 
addressing the issues raised in these comments. Comments from the 
public outside of the scope of this rulemaking concerned the following 
issues: USCIS maintaining its ``Last In, First Out'' affirmative asylum 
scheduling process to reduce incentives for applicants to file only for 
the purpose of obtaining an EAD; termination of the Deferred Action for 
Childhood Arrivals (``DACA'') program; a recommendation that 
individuals seeking protection due to climate change should receive 
positive credible fear determinations and be granted asylum; policies 
relating to Afghan evacuees; the title 42 order

[[Page 18195]]

issued by the Centers for Disease Control and Prevention; policies 
relating to immigration vetting and background checks; and other 
immigration and border management policies.

V. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    The APA generally requires agencies to publish notice of a proposed 
rulemaking in the Federal Register and allow for a period of public 
comment. 5 U.S.C. 553(b). The Departments published an NPRM on August 
20, 2021, and allowed for a 60-day comment period. As detailed 
previously, in response to comments, the Departments have altered the 
rule in multiple ways. The Departments are in compliance with the APA's 
notice-and-comment requirements with respect to these changes because 
each change is a logical outgrowth of the proposals set forth in the 
NPRM, or a rule of agency procedure to which the notice-and-comment 
requirements do not apply, or both.
    To satisfy the APA's notice-and-comment requirements, generally, 
the final rule an agency adopts must either meet an exception to the 
notice-and-comment requirements or be a logical outgrowth of the NPRM. 
Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). The 
logical outgrowth test asks whether the purposes of notice and comment 
have been adequately served, such that there was ``fair notice.'' See 
id. ``In most cases, if the agency . . . alters its course in response 
to the comments it receives, little purpose would be served by a second 
round of comment.'' Am. Water Works Ass'n v. EPA, 40 F.3d 1266, 1274 
(D.C. Cir. 1994). Accordingly, the ``logical outgrowth'' test normally 
is applied to consider ``whether a new round of notice and comment 
would provide the first opportunity for interested parties to offer 
comments that could persuade the agency to modify its rule.'' Id. The 
changes made in this IFR were adopted in response to comments received 
and build logically on the NPRM. Thus, in these circumstances, 
``interested parties should have anticipated that the change was 
possible, and thus reasonably should have filed their comments on the 
subject during the notice-and-comment period.'' CSX Transp., Inc. v. 
Surface Transp. Bd., 584 F.3d 1076, 1079-80 (D.C. Cir. 2009) (quotation 
marks omitted).
    Moreover, the APA's notice-and-comment requirements do not apply to 
``rules of agency . . . procedure.'' 5 U.S.C. 553(b)(A). A `` `critical 
feature' of the procedural exception `is that it covers agency actions 
that do not themselves alter the rights or interests of parties, 
although it may alter the manner in which the parties present 
themselves or their viewpoints to the agency.' '' JEM Broad. Co., Inc. 
v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) (quoting Batterton v. 
Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980)); cf. Texas v. United 
States, 809 F.3d 134, 176 (5th Cir. 2015) (holding that a rule is not 
procedural when it ``modifies substantive rights and interests'' 
(quoting U.S. Dep't of Lab. v. Kast Metals Corp., 744 F.2d 1145, 1153 
(5th Cir. 1984)). ``In determining whether a rule is substantive, [a 
court] must look at [the rule's] effect on those interests ultimately 
at stake in the agency proceeding.'' Neighborhood TV Co., Inc. v. FCC, 
742 F.2d 629, 637 (D.C. Cir. 1984). ``Hence, agency rules that impose 
`derivative,' `incidental,' or `mechanical' burdens upon regulated 
individuals are considered procedural, rather than substantive.'' Nat'l 
Sec. Couns. v. CIA, 931 F. Supp. 2d 77, 107 (D.D.C. 2013); see Am. 
Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1051 (D.C. Cir. 1987). Moreover, 
``an otherwise-procedural rule does not become a substantive one, for 
notice-and-comment purposes, simply because it imposes a burden on 
regulated parties.'' James V. Hurson Assocs., Inc. v. Glickman, 229 
F.3d 277, 281 (D.C. Cir. 2000). Finally, although a procedural rule 
generally may not ``encode[ ] a substantive value judgment or put[ ] a 
stamp of approval or disapproval on a given type of behavior,'' Bowen, 
834 F.2d at 1047, ``the fact that the agency's decision was based on a 
value judgment about procedural efficiency does not convert the 
resulting rule into a substantive one,'' Glickman, 229 F.3d at 282.
    Notably, many of the revisions to the proposed rule do not alter 
individuals' rights or interests. See JEM Broad., 22 F.3d at 326. 
Instead, the revisions relate to the procedure by which such claims 
shall be presented before the agencies, see id., without encoding a 
substantive value judgment, see Bowen, 834 F.2d at 1047, other than the 
need for procedural efficiency, see Glickman, 229 F.3d at 282; see also 
Lamoille Valley R. Co. v. I.C.C., 711 F.2d 295, 328 (D.C. Cir. 1983) 
(holding that an order changing the schedule for an adjudication, 
including when parties were to submit briefing, was a procedural rule); 
Elec. Priv. Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 5 
(D.C. Cir. 2011) (even ``a rule with a `substantial impact' upon the 
persons subject to it is not necessarily a substantive rule'' (citing 
Pub. Citizen v. Dep't of State, 276 F.3d 634, 640-41 (D.C. Cir. 2002)); 
Ranger v. FCC, 294 F.2d 240, 244 (D.C. Cir. 1961) (while holding that a 
rule was procedural, noting that ``no substantive rights were actually 
involved by the regulation itself'' even if ``failure to observe it 
might cause the loss of substantive rights'').
    Although additional notice and comment are not required, the 
Departments acknowledge that they would benefit from the public's input 
on the provisions in this IFR as well as the IFR's implementation. 
However, the Departments also believe that the immigration system would 
benefit from rapid implementation of the rule, which is lawful given 
that the rule is a logical outgrowth of the NPRM and because the 
changes relate to procedural issues. The benefits of rapid 
implementation include the ability to begin allocating resources to 
implement the new process, including hiring asylum officers, which can 
take many months. Further, the benefit of additional public comment 
alongside practical experience with gradual implementation will aid the 
Departments in promulgating a future final rule. For these reasons, the 
Departments have decided to follow the NPRM with this IFR.

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

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, to the 
extent permitted by law, to proceed only if the benefits justify the 
costs. They also direct agencies to select regulatory approaches that 
maximize net benefits while giving consideration, to the extent 
appropriate and consistent with law, to values that are difficult or 
impossible to quantify, including equity, human dignity, fairness, and 
distributive impacts. In particular, E.O. 13563 emphasizes the 
importance of not only quantifying both costs and benefits, reducing 
costs, harmonizing rules, and promoting flexibility, but also 
considering equity, fairness, distributive impacts, and human dignity. 
All of these considerations are relevant here. OIRA within OMB has 
designated this IFR an economically significant regulatory action under 
sec. 3(f)(1) of E.O. 12866. Accordingly, OIRA has reviewed this 
regulation.
1. Summary of the Rule and Its Potential Impacts
    As detailed previously, in response to comments, the Departments 
have

[[Page 18196]]

altered the rule in multiple ways from the NPRM. None of the revisions 
outlined in Section II.C of this preamble has led to revisions in the 
overall cost benefit analysis, which remains unchanged from the NPRM. 
However, relative to the NPRM, the changes in this IFR, such as the use 
of streamlined section 240 removal proceedings in place of the NPRM's 
IJ review procedure, may result in smaller overall operational 
efficiencies, as discussed below.
    This rule changes and streamlines the overall adjudicatory process 
for asylum applications arising out of the expedited removal process. 
By reducing undue delays in the system, and by providing a variety of 
procedural safeguards, the rule protects equity, human dignity, and 
fairness.
    A central feature of the rule changes the respective roles of an IJ 
and an asylum officer during proceedings for further consideration of 
asylum applications after a positive credible fear determination. 
Notably, IJs will retain their existing authority to review de novo the 
negative determinations made by asylum officers in a credible fear 
proceeding. In making credible fear determinations, asylum officers 
will return to evaluating whether there is a significant possibility 
that the noncitizen could establish eligibility for asylum, withholding 
of removal, or CAT protection for possible referral to a full hearing 
of the claim, and the noncitizen will still be able to seek review of 
that negative credible fear determination before the IJ.
    Asylum officers will take on a new role of adjudicating the merits 
of protection claims made by some noncitizens who have received a 
positive credible fear determination, a role previously carried out 
only by IJs as part of a proceeding under section 240 of the INA. 
Noncitizens whose claims are not granted by an asylum officer will be 
referred to an IJ for a streamlined section 240 removal proceeding.
    The population of individuals likely to be affected by this rule's 
provisions are individuals for whom USCIS completes a credible fear 
screening. The average annual number of credible fear screenings for FY 
2016 through 2020 completed by USCIS is broken out as 59,280 positive 
credible fear determinations and 12,083 negative credible fear 
determinations, for a total of 71,363 individuals with credible fear 
determinations. DHS expects that this population will be affected by 
the rule in a number of ways, which may vary from person to person 
depending on (1) whether the individual receives a positive credible 
fear determination, and (2) whether the individual's asylum claim is 
granted by an asylum officer. In addition, because of data constraints 
and conceptual and empirical challenges, we can provide only a partial 
monetization of the impacts on individuals. For example, asylum seekers 
who establish credible fear may benefit from having their asylum claims 
adjudicated potentially sooner than they otherwise would. Those who are 
granted asylum sooner receive humanitarian protection from the 
persecution they faced in their country of origin on account of their 
race, religion, nationality, membership in a particular social group, 
or political opinion, and they have a possible path to citizenship in 
the United States. These outcomes obviously constitute a benefit in 
terms of human dignity and equity, but it is a benefit that is not 
readily monetized. Asylum seekers who establish credible fear may also 
benefit from cost savings associated with not having to incur filing 
expenses, as well as earlier labor force entry. The Departments have 
estimated this impact on a per-person workday basis.
    As it relates to the Government and USCIS costs, the planned human 
resource and information-related expenditures required to implement 
this rule are monetized as real resource costs. These estimates are 
developed along three population bounds, ranging from 75,000 to 300,000 
credible fear screenings to account for possible variations in future 
years. Furthermore, the possibility of parole for more individuals--
applied on a case-by-case basis--could lower the cost to the Government 
per person processed. The Departments have also estimated potential 
employment tax impacts germane to earlier labor force entry, likewise 
on a per-person workday basis. Such estimates made on a per-person 
basis reflect a range of wages that the impacted individuals could 
earn. The per-person per-workday estimates are not extended to broader 
monetized impacts due to data constraints.
    An important caveat for the possible benefits to asylum applicants 
who establish a credible fear introduced above and discussed more 
thoroughly in this analysis is that it is expected to take time to 
implement this rule. Foremost, the Departments expect the resourcing of 
this rule to be implemented in a phased approach. Further, although up-
front expenditures to support the changes from this rule based on 
planning models are high, the logistical and operational requirements 
of this rule may take time to fully implement. For instance, once USCIS 
meets its staffing requirements, time will be required for the new 
asylum staff to be trained for their positions, which may occur over 
several months. As a result, the benefits to applicants and the 
Government may not be realized immediately.
    To develop the monetized costs of the rule, the Departments relied 
on a low, midrange, and high population bound to reflect future 
uncertainty in the population. In addition, resources are partially 
phased in over FYs 2022 and 2023, as a full phasing in of resources, 
potentially up to FY 2026, is not possible at this time because of 
budget constraints and timing of hiring, and because the Departments do 
not have fully developed resource projections applicable to this rule 
stretching past FY 2023. The average annualized cost of this rule 
ranges from $180.4 million to $1.0 billion, at a 3 percent discount 
rate, and from $179.5 million to $995.8 million, at a 7 percent 
discount rate. At a 3 percent discount rate, the total 10-year costs 
could range from $1.5 billion to $8.6 billion, with a midpoint of $3.9 
billion. At a 7 percent discount rate, the total 10-year costs could 
range from $1.3 billion to $7.0 billion, with a midpoint of $3.2 
billion.
    A summary of the potential impacts of this IFR are presented in 
Table 1 and are discussed in more detail more in the following 
analysis. Where quantitative estimates are provided, they apply to the 
midpoint figure (applicable to the wage range or the population range).

[[Page 18197]]



                       Table 1--Summary of the Expected Impacts of the Interim Final Rule
----------------------------------------------------------------------------------------------------------------
            Entities impacted              Annual population estimate               Expected impacts
----------------------------------------------------------------------------------------------------------------
Individuals who receive a positive        USCIS provides a range from  <bullet> Maximum potential cost-savings
 credible fear determination.              75,000 to 300,000 total      to applicants of Form I-589 of $364.86
                                           individuals who receive      per person.
                                           credible fear               <bullet> Potential cost savings to
                                           determinations. In recent    applicants of Form I-765 of $370.28 per
                                           years (see Table 3),         person.
                                           approximately 83.1 percent
                                           of individuals screened
                                           have received a positive
                                           credible fear
                                           determination.
                                                                       <bullet> Potential early labor earnings
                                                                        for asylum applicants who obtain an EAD
                                                                        of $225.44 per person per workday. This
                                                                        impact could potentially constitute a
                                                                        transfer from workers in the U.S. labor
                                                                        force to certain asylum applicants. We
                                                                        identified two factors that could drive
                                                                        this impact of early entry to the labor
                                                                        force: (i) More expeditious grants of
                                                                        asylum, thereby authorizing work
                                                                        incident to status; and (ii) a change in
                                                                        timing apropos to the ``start'' time for
                                                                        filing for employment authorization--the
                                                                        ``EAD-clock'' duration is not impacted,
                                                                        but it ``shifts'' to an earlier starting
                                                                        point. On the other hand, some
                                                                        individuals who would have reached the
                                                                        ``EAD-clock'' duration for a pending
                                                                        asylum application and obtained
                                                                        employment authorization under the
                                                                        current regulations may not obtain
                                                                        employment authorization if their asylum
                                                                        claims are promptly denied.
                                                                       <bullet> The impacts involving
                                                                        compensation to individuals may be
                                                                        overstated because of potential value of
                                                                        non-paid work such as childcare or
                                                                        housework.
                                                                       <bullet> Individuals might not have to
                                                                        wait lengthy times for a decision on
                                                                        their protection claims. This is a
                                                                        benefit in terms of equity, human
                                                                        dignity, and fairness.
                                                                       <bullet> Some individuals could benefit
                                                                        from de novo review by an IJ of the
                                                                        asylum officer's decision not to grant
                                                                        their asylum claims.
Individuals who receive a negative        USCIS provides a range from  <bullet> Some individuals may benefit in
 credible fear determination.              75,000 to 300,000 total      terms of human dignity if paroled from
                                           individuals who receive      detention while awaiting their credible
                                           credible fear                fear interviews and determinations.
                                           determinations. In recent   <bullet> Parole may result in more
                                           years (see Table 3),         individuals failing to appear for
                                           approximately 16.9 percent   hearings.
                                           of individuals screened
                                           have received a negative
                                           credible fear
                                           determination.
DHS-USCIS...............................  N/A........................  <bullet> At a 7 percent discount rate,
                                                                        the resource costs could be $451.2
                                                                        million annually, based on up-front and
                                                                        continuing expenditures.
                                                                       <bullet> It is reasonable to assume that
                                                                        there could be a reduction in Form I-765
                                                                        filings due to more expeditious
                                                                        adjudication of asylum claims, but there
                                                                        could also be countervailing influences;
                                                                        hence, the volume of Form I-765 filings
                                                                        (writ large or for specific classes
                                                                        related to asylum) could decrease,
                                                                        remain the same, or increase--these
                                                                        reasons are elucidated in the analysis.
                                                                        A net change in Form I-765 volumes
                                                                        overall could impact the incumbent
                                                                        volume of biometrics and biometrics
                                                                        services fees collected; however, based
                                                                        on the structure of the USCIS ASC
                                                                        biometrics processing contract, it would
                                                                        take a significant change in such
                                                                        volumes for a particular service
                                                                        district to generate marginal cost
                                                                        increases or savings per biometrics
                                                                        submission.
EOIR....................................  555 current IJs as well as   <bullet> After implementation is fully
                                           support staff and other      phased in, EOIR no longer adjudicates
                                           personnel.                   asylum claims raised in expedited
                                                                        removal in the first instance. EOIR
                                                                        would conduct streamlined section 240
                                                                        removal proceedings for individuals not
                                                                        granted asylum.
                                                                       <bullet> Allows EOIR to focus efforts on
                                                                        other high-priority work and reduce its
                                                                        substantial current backlog.
                                                                       <bullet> There could be non-budget
                                                                        related cost savings if the actual time
                                                                        worked on a credible fear case decreases
                                                                        in the transfer of credible fear cases
                                                                        to USCIS.
Support networks for asylum applicants    Unknown....................  <bullet> To the extent that some
 who receive a positive credible fear                                   applicants may be able to earn income
 determination.                                                         earlier than they otherwise could
                                                                        currently, burdens on the support
                                                                        network of the applicant may be
                                                                        lessened. This network could include
                                                                        public and private entities and family
                                                                        and personal friends, legal services
                                                                        providers and advisors, religious and
                                                                        charitable organizations, State and
                                                                        local public institutions, educational
                                                                        providers, and NGOs.
Other...................................  Unknown....................  <bullet> There could be familiarization
                                                                        costs associated with this IFR; for
                                                                        example, if attorneys representing each
                                                                        asylum client reviewed the rule, based
                                                                        on average reading speed, the cost would
                                                                        be about $76.3 million, which would
                                                                        potentially be incurred during the first
                                                                        year the rule is effective.
                                                                       <bullet> There may be some labor market
                                                                        impacts as some asylum seekers who
                                                                        currently enter the labor market with a
                                                                        pending asylum application would no
                                                                        longer be entering the labor market
                                                                        under this IFR if they receive negative
                                                                        decisions on their asylum claims sooner.
                                                                        Applicants with a positive credible fear
                                                                        determination may enter the labor market
                                                                        sooner under this IFR than they would
                                                                        currently.
                                                                       <bullet> Tax impacts: Employees and
                                                                        employers would pay their respective
                                                                        portion of Medicare and Social Security
                                                                        taxes as a result of the earlier entry
                                                                        of some individuals into the labor
                                                                        market. We estimate employment tax
                                                                        impacts could be $34.49 per person on a
                                                                        workday basis.
----------------------------------------------------------------------------------------------------------------

    In addition to the impacts summarized above, and as required by OMB 
Circular A-4, Table 2 presents the prepared accounting statement 
showing the costs and benefits associated with this regulation.

[[Page 18198]]



                                      Table 2--OMB A-4 Accounting Statement
                                              [$ millions, FY 2020]
----------------------------------------------------------------------------------------------------------------
                                      Time period: FY 2022 through FY 2031
-----------------------------------------------------------------------------------------------------------------
             Category               Primary estimate   Minimum estimate   Maximum estimate     Source citation
----------------------------------------------------------------------------------------------------------------
                                                    Benefits
----------------------------------------------------------------------------------------------------------------
Monetized benefits...............     Not estimated      Not estimated      Not estimated
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but un-                  N/A                N/A                N/A
 monetized, benefits.
----------------------------------------------------------------------------------------------------------------
Unquantified benefits............  Some individuals may benefit from filing cost savings    Regulatory Impact
                                   related to Forms I-589 and I-765. Early labor market      Analysis (``RIA'').
                                   entry would be beneficial in terms of labor earnings to
                                   the applicant, but also because it could reduce burdens
                                   on the applicants' support networks.
                                   Benefits driven by increased efficiency would enable
                                   some asylum-seeking individuals to move through the
                                   asylum process more expeditiously than through the
                                   current process, with timelines potentially decreasing
                                   significantly, thus promoting both human dignity and
                                   equity. Adjudicative efficiency gains and expanded
                                   possibility of parole on a case-by-case basis could
                                   lead to individuals spending less time in detention,
                                   which would benefit the Government and the affected
                                   individuals.
                                   Another, potentially very significant, benefit is that
                                   EOIR would not see the cases in which USCIS grants
                                   asylum, which we estimate as at least a 15 percent
                                   reduction in its overall credible fear workload. This
                                   could help mitigate the backlog of cases pending in
                                   immigration courts. Additionally, this benefit would
                                   extend to individuals granted or not granted asylum
                                   faster than if they were to go through the current
                                   process with EOIR.
                                   Depending on the individual case circumstances, this
                                   IFR would mean that such noncitizens would likely not
                                   remain in the United States--for years, potentially--
                                   pending resolution of their claims, and those who
                                   qualify for asylum would be granted asylum several
                                   years earlier than under the present process.
                                   The anticipated operational efficiencies from this IFR
                                   may provide for prompt grant of relief or protection to
                                   qualifying noncitizens and ensure that those who do not
                                   qualify for relief or protection may be removed sooner
                                   than under current rules. Relative to the NPRM, the
                                   changes in this IFR may result in smaller operational
                                   efficiencies to DHS because the ICE Office of the
                                   Principal Legal Advisor will need to play a more
                                   significant role because noncitizens not approved for
                                   asylum will now be placed into streamlined section 240
                                   removal proceedings.
----------------------------------------------------------------------------------------------------------------
                                                      Costs
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs for 10-      (3 percent)             $180.4           $1,002.4   RIA.
 year period between 2021 and                $453.8
 2030 (discount rate in
 parentheses).
                                  ------------------------------------------------------------------------------
                                        (7 percent)             $179.5             $995.8   ....................
                                             $451.2
                                  ------------------------------------------------------------------------------
Annualized quantified, but un-     <bullet> Potential cost-savings applicable to Form I-    RIA.
 monetized, costs.                 589 of $338.86 per person.
----------------------------------------------------------------------------------------------------------------
                                   <bullet> Potential cost-savings applicable to Form I-    RIA.
                                   765 of $377.32 per person.
                                   <bullet> Familiarization costs of about $76.3 million
                                   (in 2022).
                                   <bullet> The transfer of cases from EOIR to USCIS would
                                   allow resources at EOIR to be directed to other work,
                                   and there is a potential for cost savings to be
                                   realized for credible fear processing specifically if
                                   the average cost of worktime spent on cases by USCIS
                                   asylum officers would be lower than at EOIR currently.
                                   These would not be budgetary cost savings, and USCIS
                                   has not made a one-to-one time- and cost-specific
                                   comparison between worktime actually spent on a case at
                                   EOIR and USCIS.
----------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) costs.                            N/A
----------------------------------------------------------------------------------------------------------------

[[Page 18199]]

 
                                                    Transfers
----------------------------------------------------------------------------------------------------------------
Annualized transfers:............  Potential transfers include labor earnings that would
                                   accrue to credible fear asylum applicants who enter the
                                   labor market earlier than they would currently. The
                                   impact accruing to labor earnings developed in this
                                   rule has the potential to include both distributional
                                   effects (which are transfers) and indirect benefits to
                                   employers. The distributional impacts would accrue to
                                   asylum applicants who enter the U.S. labor force
                                   earlier than under current regulations, in the form of
                                   increased compensation (wages and benefits) and to the
                                   Government in the form of tax impacts. A portion of
                                   this compensation gain and tax payment might be
                                   transferred to asylum applicants from others who are
                                   currently in the U.S. labor force or eligible to work
                                   lawfully.
----------------------------------------------------------------------------------------------------------------
From whom to whom?...............  Potential transfers include a distributional economic
                                   impact in the form of a transfer to asylum applicants
                                   who enter the labor force earlier than they would
                                   currently if they take on work performed by others
                                   already in the U.S. workforce.
----------------------------------------------------------------------------------------------------------------
Miscellaneous analyses/category..                            N/A                            RIA.
----------------------------------------------------------------------------------------------------------------
Effects on State, local, or                                  N/A
 Tribal governments.
----------------------------------------------------------------------------------------------------------------
Effects on small businesses......  This IFR does not directly regulate small entities, but  RFA.
                                   rather individuals.
----------------------------------------------------------------------------------------------------------------
Effects on wages.................                            None
----------------------------------------------------------------------------------------------------------------
Effects on growth................                            None
----------------------------------------------------------------------------------------------------------------

2. Background and Purpose of the Rule
    The purpose of this rule is to address the rising number of 
apprehensions at or near the Southwest border and the ability of the 
U.S. asylum system to fairly and efficiently handle protection claims 
made by those encountered. The rule streamlines and simplifies the 
adjudication process for certain individuals who are encountered at or 
near the border, placed into expedited removal, and determined to have 
a credible fear of persecution or torture, with the aim of adjudicating 
applications for asylum, statutory withholding of removal, and CAT 
protection in a timelier fashion and with appropriate procedural 
protections against error. A principal feature of the rule is to 
transfer the initial responsibility for adjudicating asylum, statutory 
withholding of removal, and CAT protection applications from IJs to 
USCIS asylum officers for individuals within expedited removal 
proceedings who receive a positive credible fear determination.
    The IFR may broaden the circumstances in which individuals making a 
fear claim during the expedited removal process could be considered for 
parole on a case-by-case basis prior to a positive credible fear 
determination being made. For such individuals, parole could be granted 
as an exercise of discretion consistent with INA section 212(d)(5)(A), 
8 U.S.C. 1182(d)(5)(A), when continued detention is not in the public 
interest.
    This rule applies only to recently-arrived individuals who are 
subject to expedited removal--i.e., adults and families. The rule does 
not apply to unaccompanied children, as they are statutorily exempt 
from being placed into expedited removal. It also does not apply to 
individuals already residing in the United States and whose presence in 
the United States is outside the coverage of noncitizens designated by 
the Secretary as subject to expedited removal. The rule also does not 
apply to (1) stowaways or (2) noncitizens who are physically present in 
or arriving in the CNMI. Those classes of noncitizens will continue to 
be referred to asylum/withholding-only hearings before an IJ under 8 
CFR 208.2(c). Finally, this rule does not require that a noncitizen 
amenable to expedited removal after the effective date of the rule be 
placed in the nonadversarial merits adjudication process described in 
this IFR. Rather, DHS generally, and USCIS in particular, retain 
discretion to issue an NTA to a covered noncitizen in expedited removal 
proceedings to instead place them in ordinary section 240 removal 
proceedings at any time after they are referred to USCIS for a credible 
fear determination. See Matter of E-R-M- & L-R-M-, 25 I&N Dec. at 523; 
see also 8 CFR 1208.2(c).
    In this section we provide some data and information relevant to 
the ensuing discussion and analysis of the potential impacts of the 
rule. We first present USCIS data followed by EOIR data. Table 3 shows 
USCIS data for the Form I-589 and credible fear cases for the five-year 
span from FY 2016 through FY 2020.

[[Page 18200]]



    Table 3--USCIS Form I-589, Application for Asylum and for Withholding of Removal, and Credible Fear Data
                                         [FY 2016 through FY 2020] \107\
----------------------------------------------------------------------------------------------------------------
                                  Form I-589 receipts           Credible fear completions
                              ------------------------------------------------------------------  Total credible
              FY                 Initial      Pending      Positive     Negative        All         fear cases
                                 receipts     receipts      screen       screen     completions       \108\
----------------------------------------------------------------------------------------------------------------
2016.........................      115,888      194,986       73,081        9,697        82,778           94,048
2017.........................      142,760      289,835       60,566        8,245        68,811           79,842
2018.........................      106,041      319,202       74,677        9,659        84,336           99,035
2019.........................       96,861      349,158       75,252       16,679        91,931          102,204
2020.........................       93,134      386,014       12,824       16,134        28,958           30,839
                              ----------------------------------------------------------------------------------
    5-year Total.............      554,684          N/A      296,400       60,414       356,814          405,968
                              ----------------------------------------------------------------------------------
        5-year Average.......      110,937      307,839       59,280       12,083        71,363           81,194
----------------------------------------------------------------------------------------------------------------
Source: USCIS Office of Performance and Quality (``OPQ''), and USCIS Refugee, Asylum, and International
  Operations (``RAIO'') Directorate, CLAIMS 3 database, global (received May 11, 2021).

    As can be seen from Table 3, the Form I-589 pending case number has 
grown steadily since 2016, and, as of the fourth quarter of FY 2021, 
was 412,796,\109\ which is well above the five-year average of 307,839. 
Over that same period, the majority, 83.1 percent, of completed 
credible fear screenings were positive, while 16.9 percent were 
negative.
---------------------------------------------------------------------------

    \107\ In FY 2020, the credible fear filings are captured in Form 
I-870, Record of Determination/Credible Fear Worksheet. As part of 
the credible fear screening adjudication, USCIS asylum officers 
prepare Form I-870, Record of Determination/Credible Fear Worksheet. 
This worksheet includes biographical information about the 
applicant, including the applicant's name, date of birth, gender, 
country of birth, nationality, ethnicity, religion, language, and 
information about the applicant's entry into the United States and 
place of detention. Additionally, Form I-870 collects sufficient 
information about the applicant's marital status, spouse, and 
children to determine whether they may be included in the 
determination. Form I-870 also documents the interpreter 
identification number of the interpreter used during the credible 
fear interview and collects information about relatives or sponsors 
in the United States, including their relationships to the applicant 
and contact information. In previous years credible fear filings 
included Form I-867, Credible Fear Referral. Prior to FY 2020, the 
USCIS Asylum Division electronically received information about 
credible fear determinations through referral documentation provided 
by CBP. The referral documentation includes a form containing 
information about the applicant: Form I-867, Credible Fear Referral.
    \108\ The credible fear total receipts are larger than the sum 
of positive and negative determinations because the latter apply to 
``completions,'' referring to cases forwarded to EOIR, and thus 
exclude cases that were administratively closed.
    \109\ USCIS, Immigration and Citizenship Data, https://www.uscis.gov/tools/reports-and-studies/immigration-and-citizenship-data (filter by Asylum Category to search for file ``All USCIS 
Application and Petition Form Types (Fiscal Year 2021, 4th Qtr, July 
1-September 30, 2021) (Dec. 15, 2021)'').
---------------------------------------------------------------------------

    In addition to the credible fear case data presented in Table 3, 
USCIS data and analysis can provide some insight concerning how long it 
has taken for the credible fear screening process to be completed. As 
detailed in this preamble, although this rule's primary concern is the 
length of time before incoming asylum claims are expected to be 
adjudicated by EOIR, changes to USCIS processes enabled by this rule 
(including, for example, improved systems for conducting credible fear 
interviews for individuals who are not in detention facilities) are 
also expected to reduce processing times for credible fear cases. Table 
4 provides credible fear processing durations at USCIS.

                    Table 4--Credible Fear Time Durations for Detained and Non-Detained Cases
                              [In average and median days, FY 2016 through FY 2021]
----------------------------------------------------------------------------------------------------------------
                                                             Detained                      Non-detained
              FY                     Screen      ---------------------------------------------------------------
                                                      Average         Median          Average         Median
----------------------------------------------------------------------------------------------------------------
2016..........................  Positive........            23.3              13           290.6           163.0
                                Negative........              34              26           197.1            80.5
2017..........................  Positive........            23.3              13           570.1           407.0
                                Negative........            34.2              25           496.1           354.0
2018..........................  Positive........            22.6              16           816.2           671.0
                                Negative........            32.3              25           811.7           668.0
2019..........................  Positive........            35.6              24         1,230.9         1,082.0
                                Negative........            44.7              33         1,067.3           959.0
2020..........................  Positive........            37.2              20         1,252.7         1,065.0
                                Negative........            30.3              16         1,311.2         1,247.0
2021..........................  Positive........            25.6              15           955.3           919.0
                                Negative........            29.8              17         1,174.0         1,109.0
----------------------------------------------------------------------------------------------------------------
Source: Data and analysis provided by USCIS, RAIO Directorate, SAS Predictive Modeling Environment and data-
  bricks databases, received May 11, 2021. FY 2021 includes partial fiscal year data as of May 2021.

    Table 4 reports the ``durations,'' defined as the elapsed days from 
date of apprehension to forwarding of the credible fear screening 
process at USCIS, in both averages and medians. USCIS has included data 
through May 11, 2021. The total time for cases from apprehension to 
adjudication by EOIR can be found by adding the times in

[[Page 18201]]

Table 4 with the times in Table 6, below.
    The data in Table 4 are not utilized to develop quantitative 
impacts, but rather are intended to build context and situational 
awareness. There are several key observations from the information 
presented. Foremost, there is a substantial difference between 
durations for the detained and the non-detained populations. The 
existence of a gap is expected because USCIS can interface with 
detained individuals rapidly. However, the gap has grown over time; in 
2016 the duration for positive-screened processing was 12.5 times 
greater, but by 2021 it had grown to a factor of nearly 40. Second, and 
relatedly, there was a substantial duration rise through 2019 for both 
detained and non-detained screenings, although there has been a recent 
pullback. Furthermore, the duration for negative screenings is lower 
across the board than for positive screenings--as of the most recent 
data point, the duration was about 19 percent lower for negative 
screened cases. It is also seen that the FY 2021 average durations for 
detained cases are relatively close to FY 2016 through FY 2018 levels, 
with this series witnessing a spike in 2019.
    Because some of the EOIR data are presented in medians, we note 
that the median durations are lower than the means for both screened 
types. This indicates that a small number of cases take an 
exceptionally long time to resolve, resulting in large outlier data 
points that skew the mean upwards. For non-detained cases, the gap 
between median and mean duration is relatively consistent up to FY 
2021, but the mean and median converge toward the end of the period; 
this feature of the data could indicate that fewer outlier durations 
were represented in the data.
    It is possible that the rule may impact the volume and timing of 
employment authorization applications and approvals. Although we cannot 
predict the net change in filings for the Form I-765 categories, we 
present data on initial filings and approvals for three asylum-related 
categories in Table 5. As a result of the rule, there could be 
substitutions in Form I-765 categories from the (c)(8), Applicant for 
Asylum/Pending Asylum, into the (a)(5), Granted Asylum Under Section 
208, and (a)(10) Granted Withholding of Removal/243 (H) categories, in 
Table 5.

  Table 5--USCIS Form I-765 Application for Employment Authorization Initial Receipts and Approvals Related to
                                                Asylee Categories
                                            [FY 2016 through FY 2020]
----------------------------------------------------------------------------------------------------------------
                                       EAD category (a)(5)       EAD category (c)(8)      EAD category (a)(10)
                                      Granted asylum under      applicant for asylum/    granted withholding of
                                           section 208             pending asylum            removal/243 (H)
                FY                 -----------------------------------------------------------------------------
                                      Initial                   Initial                   Initial
                                      receipts    Approvals     receipts    Approvals     receipts    Approvals
----------------------------------------------------------------------------------------------------------------
2016..............................       29,887       27,139      169,970      152,269        2,008        1,621
2017..............................       32,673       29,648      261,782      234,053        1,936        1,076
2018..............................       38,743       39,598      262,965      246,525        1,733        1,556
2019..............................       47,761       41,288      216,038      177,520        2,402        2,101
2020..............................       31,931       36,334      233,864      183,820        3,318        2,554
                                   -----------------------------------------------------------------------------
    5-year total..................      180,995      174,007    1,144,619      994,187       11,397        8,908
                                   -----------------------------------------------------------------------------
        5-year Average............       36,199       34,801      228,924      198,837        2,279        1,782
----------------------------------------------------------------------------------------------------------------
Source: OPQ, USCIS, Form I-765 Application for Employment Authorization: All Receipts, Approvals, Denials
  Grouped by Eligibility Category and Filing Type (May 11, 2021), https://www.uscis.gov/sites/default/files/document/reports/I-765_Application_for_Employment_FY03-20.pdf.

    Across the three relevant employment authorization categories, the 
total of the averages is 267,402 initial EADs, with a total of 235,420 
approved EADs.
    Having presented information and data applicable to USCIS 
specifically, we now turn to EOIR data and information. Table 6 
presents average and median processing times for EOIR to complete cases 
originating from the credible fear screening process, positive and 
negative, and detained and non-detained. The processing time represents 
that time between when a case is lodged in EOIR systems and a final 
decision. Note that the ``initial case completions'' are not directly 
comparable to USCIS completions (see Table 3) in terms of annual 
volumes for two primary reasons. First, there can be timing differences 
in terms of when a credible fear case is sent to EOIR and when it is 
lodged in its processing systems. Second, not all individuals 
determined to have a credible fear follow up with their cases with 
EOIR, and some filed cases are administratively closed. Therefore, as a 
rule, case completions by EOIR would be necessarily lower than 
``completions'' at USCIS.

        Table 6--EOIR Time Duration Metrics, Days, and Completions for Cases With a Credible Fear Origin
----------------------------------------------------------------------------------------------------------------
                                                                 Average           Median         Initial case
                            FY                               processing time   processing time     completions
----------------------------------------------------------------------------------------------------------------
 6A. Average and Median Processing Times (in Days) for Form I-862 Initial Case Completions with a Credible Fear
                                                     Origin
----------------------------------------------------------------------------------------------------------------
2016......................................................               413               214            16,794
2017......................................................               447               252            26,531
2018......................................................               648               512            33,634
2019......................................................               669               455            55,404
2020......................................................               712               502            33,517
2021-March 31, 2021 (years)...............................      1,078 (2.95)        857 (2.35)             6,646
----------------------------------------------------------------------------------------------------------------

[[Page 18202]]

 
 6B. Average and Median Processing Times (in Days) for Form I-862 Initial Case Completions with a Credible Fear
  Origin and Only an Application for Asylum, Statutory Withholding of Removal, and Withholding and Deferral of
                                              Removal Under the CAT
----------------------------------------------------------------------------------------------------------------
2016......................................................               514               300             7,519
2017......................................................               551               378            13,463
2018......................................................               787               690            19,293
2019......................................................               822               792            30,052
2020......................................................               828               678            21,058
2021-March 31, 2021 (years)...............................      1,283 (3.52)      1,316 (3.61)             3,730
----------------------------------------------------------------------------------------------------------------
Source: EOIR, Planning, Analysis, and Statistics Division (``PASD''), data obtained April 19, 2021. The row for
  FY 2021 reflects data through March 31, 2021.

    The FY 2021 data point reflects data through the start of FY 2021 
to March 31, 2021, and we have included the current processing times in 
years for situational awareness. As Table 6 shows, there was an across-
the-board jump in processing times in FY 2018, followed by a leveling 
off until FY 2021, when the processing times surged again.
3. Population
    The population expected to be affected by this rule is the total 
number of credible fear completions processed annually by USCIS 
(71,363, see Table 3), split between an average of 59,280 positive-
screen cases and 12,083 negative-screen cases. This can be considered 
the maximum, ``encompassing,'' population that could be impacted. 
However, we take into consideration larger populations to account for 
variations and uncertainty in the future population.
4. Impacts of the Rule
    This section is divided into three subsections. The first (a) 
focuses on impacts on asylum seekers, presented on a per-person basis. 
The second (b) discusses costs to the Federal Government, and the third 
(c) discusses other, possible impacts, including benefits.
a. Impacts on the Credible Fear Asylum Population
    Under the new procedure established by this rule, asylum applicants 
who have established a credible fear of persecution or torture would 
not be required to file Form I-589 with USCIS. Individuals in this 
population could accrue cost savings because of this change. There is 
no filing fee for Form I-589, and the time burden is currently 
estimated at 12.0 hours per response, including the time for reviewing 
instructions and completing and submitting the form.\110\ Regarding 
cost savings, DHS believes the minimum wage is appropriate to rely on 
as a lower bound, as the applicants would be new to the U.S. labor 
market. The Federal minimum wage is $7.25 per hour; however, in this 
rule, we rely on the ``effective'' minimum wage of $11.80. As The New 
York Times reported, ``[t]wenty-nine states and the District of 
Columbia have state-level minimum hourly wages higher than the federal 
[minimum wage],'' as do many city and county governments. This New York 
Times report estimates that ``the effective minimum wage in the United 
States [was] $11.80 an hour in 2019.'' \111\ Therefore, USCIS uses the 
``effective'' minimum hourly wage rate of $11.80 to estimate a lower 
bound. USCIS uses a national average wage rate across occupations of 
$27.07 \112\ to take into consideration the variance in average wages 
across States as an upper bound.
---------------------------------------------------------------------------

    \110\ See USCIS, Form I-589, Application for Asylum and for 
Withholding of Removal: Instructions, OMB No. 1615-0067, at 14 
(expires July 31, 2022), https://www.uscis.gov/sites/default/files/document/forms/i-589instr.pdf.
    \111\ Ernie Tedeschi, Americans Are Seeing Highest Minimum Wage 
in History (Without Federal Help), The New York Times (Apr. 24, 
2019), https://www.nytimes.com/2019/04/24/upshot/why-america-may-already-have-its-highest-minimum-wage.html (last visited Mar. 5, 
2022). We note that, with the wage level dated to 2019, we do not 
make an inflationary adjustment because the Federal minimum wage has 
not changed since then.
    \112\ For the average wage for all occupations, the Departments 
rely on BLS statistics. See BLS, May 2020 National Occupational 
Employment and Wage Estimates, https://www.bls.gov/oes/2020/may/oes_nat.htm#00-0000 (last visited Feb. 28, 2022).
---------------------------------------------------------------------------

    DHS accounts for worker benefits by calculating a benefits-to-wage 
multiplier using the most recent BLS report detailing the average 
employer costs for employee compensation for all civilian workers in 
major occupational groups and industries. DHS relies on a benefits-to-
wage multiplier of 1.45 and, therefore, is able to estimate the full 
opportunity cost per applicant, including employee wages and salaries 
and the full cost of benefits such as paid leave, insurance, 
retirement, and other benefits.\113\ The total rate of compensation for 
the effective minimum hourly wage is $17.11 ($11.80 x benefits burden 
of 1.45), which is 62.8 percent higher than the Federal minimum 
wage.\114\ The total rate of compensation for the average wage is 
$39.25 ($27.07 x benefits burden of 1.45).
---------------------------------------------------------------------------

    \113\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour)/(Wages and Salaries per hour) 
($38.60 Total Employee Compensation per hour)/($26.53 Wages and 
Salaries per hour) = 1.454957 = 1.45 (rounded). See BLS, Employer 
Cost for Employee Compensation--December 2020, Table 1. Employer 
Costs for Employee Compensation by Ownership (Dec. 2020), https://www.bls.gov/news.release/archives/ecec_03182021.pdf (last visited 
Feb. 28, 2022).
    \114\ The Federal minimum wage is $7.25 hourly, which burdened 
at 1.45 yields $10.51. It follows that: (($17.11 wage-$10.51 wage)/
$10.51)) wage = 0.628, which rounded and multiplied by 100 = 62.8 
percent.
---------------------------------------------------------------------------

    For applicants who have established a credible fear, the 
opportunity cost of 12 hours to file Form I-589 at the lower and upper 
bound wage rates is $205.32 (12 hours x $17.11) and $471.00 (12 hours x 
$39.25), respectively, with a midrange average of $338.16. In addition, 
form instructions require a passport-style photograph for each family 
member associated with the Form I-589 filing. The Departments obtained 
an estimate of the number of additional family members applicable via 
data on biometrics collections for the Form I-589. Biometrics 
information is collected on every individual associated with a Form I-
589 filing, and the tracking of collections is captured in the USCIS 
Customer Profile Management System (``CPMS'') database. A query of this 
system reveals that for the five-year period of FY 2016 through FY 
2020, an average of 296,072 biometrics collections accrued for the Form 
I-589 annually. Dividing this

[[Page 18203]]

figure by the same five-year period average of 110,937 initial filings 
(Table 3) yields a multiplier of 2.67 (rounded).\115\ Under the 
supposition that each photo causes applicants to incur a cost of 
$10,\116\ there could be $26.70 in additional cost-savings at either 
wage bound.\117\ The resulting cost savings per applicant from no 
longer having to file Form I-589 could range from $232.02 to $497.70, 
with a midrange of $364.86.\118\
---------------------------------------------------------------------------

    \115\ Calculation: Average Form I-589 biometrics collections 
296,072/110,937 average initial Form I-589 filings = 2.67 (rounded). 
Data were obtained from the USCIS Immigration Records and Identity 
Services (``IRIS'') Directorate, via the CPMS database (data 
obtained May 7, 2021).
    \116\ The U.S. Department of State estimates an average cost of 
$10 per passport photo in its supporting statement for its Paperwork 
Reduction Act submission for the Application for a U.S. Passport, 
OMB #1405-0004 (DS-11) (Feb. 8, 2011), https://www.reginfo.gov/
public/do/PRAViewDocument?ref_nbr=201102-1405-001 (last visited Feb. 
28, 2022) (see question #13 of the Supporting Statement).
    \117\ Calculation: $10 per photo cost x 2.67 photos per Form I-
589 = $26.70.
    \118\ Calculation: $205.32 + $26.70 = $232.02; $338.16 + $26.70 
= $364.86; $471.00 + $26.70 = $497.70.
---------------------------------------------------------------------------

    Though these applicants would no longer be required to file Form I-
589, DHS recognizes that applicants would likely expend some time and 
effort to prepare for their asylum interviews and provide documentation 
for their asylum claims under this rule as well. DHS does not know 
exactly how long, on average, individuals may spend preparing for their 
credible fear interviews under the rule, and how that amount of time 
and effort would compare to the time individuals currently spend 
preparing for the credible fear interviews. If the increased time were 
substantial--i.e., above and beyond that currently earmarked for the 
asylum application process--lower cost savings could result.
    Under the rule, asylum applicants who established a credible fear 
would be able to file for employment authorization via the Form I-765, 
Application for Employment Authorization (``EAD''), while their asylum 
applications are being adjudicated. We cannot say, however, whether the 
volume of Form I-765 EADs filed would increase or decrease in upcoming 
years due to this rule. Currently, asylum applicants can file for an 
EAD under the asylum (c)(8) category while their asylum applications 
are pending. Such applications are subject to a waiting period that 
commences when their completed Form I-589s are filed. Asylum applicants 
who establish a credible fear would still be subject to the waiting 
period.\119\ Applicants would still be able to file for their EADs 
under the (c)(8) category. We analyze the impacts regarding the EAD 
filing in two steps, explaining first why filing volumes might decline 
and the impacts related to that decline, and then why countervailing 
factors might mitigate such a decline.
---------------------------------------------------------------------------

    \119\ On February 7, 2022, in AsylumWorks v. Mayorkas, No. 20-
cv-3815 (BAH), 2022 WL 355213, at *12 (D.D.C. Feb. 7, 2022), the 
U.S. District Court for the District of Columbia vacated two DHS 
employment authorization-related rules entitled ``Asylum 
Application, Interview, and Employment Authorization for 
Applicants,'' 85 FR 38532 (June 26, 2020), and ``Removal of 30-Day 
Processing Provision for Asylum Applicant-Related Form I-765 
Employment Authorization Applications,'' 85 FR 37502, (June 22, 
2020), that addressed waiting periods. Separately, a partial 
preliminary injunction was issued on September 11, 2020, in Casa de 
Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928, 935 (D. Md. 2020), that 
exempts certain individuals from a 365-day waiting period and 
certain other eligibility criteria, but retains a 180-day waiting 
period. Although the duration of time required for the waiting 
period varies based on application of these rules and the related 
vacaturs and injunctions, a required waiting period remains in 
effect notwithstanding these rules, vacaturs, or injunctions.
---------------------------------------------------------------------------

    One result of this rule is that asylum applications for some 
individuals pursuant to this rule could be granted asylum earlier than 
they would be under current conditions. Because an asylum approval 
grants employment authorization incident to status, and because USCIS 
automatically provides an asylum granted EAD ((a)(5)) after a grant of 
asylum by USCIS, some applicants may choose not to file for an EAD 
based on the pending asylum application under the expectation that 
asylum would be granted earlier than the EAD approval. This could 
result in cost savings to some applicants.
    There is currently no filing fee for the initial (c)(8) EAD Form I-
765 application, and the time burden is currently estimated at 4.75 
hours, which includes the time associated with submitting two passport-
style photos along with the application.\120\ As stated earlier, the 
Department of State estimates that each passport photo costs about $10 
each. Submitting two passport photos results in an estimated cost of 
$20 per Form I-765 application. Because the (c)(8) EAD does not include 
or require, at the initial or renewal stage, any data on employment, 
and since it does not involve an associated labor condition 
application, we have no information on wages, occupations, industries, 
or businesses that may employ such workers. Hence, we continue to rely 
on the wage bounds (effective minimum and national average) developed 
earlier. At the wage bounds relied upon, the opportunity-cost savings 
are $81.27 (4.75 hours x $17.11 per hour), and $186.44 (4.75 hours x 
$39.25). When the $20 photo cost is included, the cost savings would be 
$101.27 and $206.44 per applicant, respectively. However, some might 
choose to file for an EAD even if they hope that asylum will be granted 
earlier than the EAD approval because they want to have documentation 
that reflects that they are employment authorized.
---------------------------------------------------------------------------

    \120\ See USCIS, Instructions for Application for Employment 
Authorization, OMB No. 1615-0040, at 31 (expires July 31, 2022), 
https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf.
---------------------------------------------------------------------------

    In the discussion of the possible file volume decline for the Form 
I-589, above, we noted that applicants and family members would 
continue to submit biometrics as part of their asylum claims, and that, 
as a result, there would not be changes in costs or cost savings 
germane to biometrics. For the Form I-765(c)(8) category, USCIS started 
collecting biometrics, and the associated $85 biometrics service fee, 
in October 2020.\121\
---------------------------------------------------------------------------

    \121\ USCIS collects biometrics for Form I-765 (c)(8) 
submissions, but a preliminary injunction in Casa de Maryland, 486 
F. Supp. at 935, currently exempts members of certain organizations 
from this biometrics collection.
---------------------------------------------------------------------------

    The submission of biometrics involves travel to an ASC for the 
biometric services appointment. In past rulemakings, DHS estimated that 
the average round-trip distance to an ASC is 50 miles, and that the 
average travel time for the trip is 2.5 hours.\122\ The cost of travel 
also includes a mileage charge based on the estimated 50-mile round 
trip at the 2021 General Services Administration (``GSA'') rate of 
$0.56 per mile.\123\ Because an individual would spend an average of 1 
hour and 10 minutes (1.17 hours) at an ASC to submit biometrics,\124\ 
adding the ASC time and travel time yields 3.67 hours. At the low- and 
high-wage bounds, the opportunity costs of time are $62.79 and 
$144.05.\125\ The travel cost is $28, which is the per mileage 
reimbursement rate of 0.56 multiplied by 50-mile travel distance. 
Adding the time-related and travel costs generates a per-person

[[Page 18204]]

biometrics submission cost of $90.79, at the low-wage bound and $172.05 
at the high-wage bound.\126\ Although the biometrics collection 
includes the $85 service fee, fee waivers and exemptions are granted on 
a case-by-case basis (across all forms) that are immaterial to this 
IFR. Accordingly, not all individuals pay the fee. When the opportunity 
costs of time for filing Form I-765 ($101.27 and $206.44, respectively) 
are added to the opportunity costs of time and travel for biometrics 
submissions ($90.79 and 172.05), the total opportunity costs of time to 
file Form I-765 and submitting biometrics are $192.07 and $378.49, 
respectively. For those who pay the biometrics service fee, the total 
costs are $277.07 and $463.49, respectively, with a midpoint of 
$370.28.\127\ These figures represent the maximum per-person cost 
savings for those who choose not to file for an EAD.\128\
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    \122\ See Provisional Unlawful Presence Waivers of 
Inadmissibility for Certain Immediate Relatives, 78 FR 536, 572 
(Jan. 3, 2013).
    \123\ See GSA, POV Mileage Rates (Archived), https://www.gsa.gov/travel/plan-book/transportation-airfare-pov-etc/privately-owned-vehicle-mileage-rates/pov-mileage-rates-archived 
(last visited Feb. 28, 2022).
    \124\ See USCIS, Instructions for Application for Employment 
Authorization, OMB No. 1615-0040, at 31 (expires July 31, 2022), 
https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf.
    \125\ Calculations: Total time burden of 3.67 hours x total rate 
of compensation for the effective wage $17.11 = $62.79; total time 
burden of 3.67 hours x total rate of compensation for the average 
wage $39.25 = $144.05.
    \126\ Calculations: Opportunity cost of time, effective wage 
$62.79 + travel cost of $28 = $90.79; Opportunity cost of time, 
average wage $144.05 + travel cost of $28 = $172.05.
    \127\ Calculations: $192.07 + biometrics services fee of $85 = 
$277.07; $378.49 + biometrics services fee of $85 = $463.49. 
Although we have the overall count for biometrics for the period 
from October 1, 2020, through May 1, 2021, we do not know how many 
biometrics service fees were collected with these biometrics' 
submissions; the fee data are retained by the USCIS Office of the 
Chief Financial Officer (``OCFO''), but the Form I-765 fee payments 
are not captured by eligibility class.
    \128\ There is a scenario that the Departments have considered, 
though it is not likely to occur often. Currently, an asylum 
applicant might file for an EAD and have the EAD approved prior to 
the grant of asylum. It is possible that, under this rule, asylum 
may be approved more expeditiously. At the time of the asylum grant, 
the individual will automatically receive a category (a)(5) EAD 
based on the grant of asylum; if the applicant did already file for 
an EAD, then the filing costs associated with the EAD would be sunk 
costs, since the (c)(8) EAD does not actually provide any benefit 
over the (a)(5) EAD. Because this scenario is likely to be rare, DHS 
has not attempted to quantify its impact.
---------------------------------------------------------------------------

    Having developed the cost savings for applicants who do not file 
for an EAD, we now turn to factors that could counteract a potential 
decline in Form I-765 volumes. First, applicants will benefit from a 
timing change relevant to the EAD waiting period as it relates to the 
``filing date'' of their asylum applications that will allow an EAD to 
be filed earlier than it could be currently. USCIS allows for an EAD to 
be filed under 8 CFR 208.7 and 274a.12(c)(8) when an asylum application 
is pending and certain other conditions are met. Here, an asylum 
application would be pending when the credible fear determination is 
served on the individual as opposed to current practice under which the 
asylum application is pending when lodged in immigration court. This 
change in timing could allow some EADs to be approved earlier for those 
who file for an EAD with a pending asylum application. In this sense, 
the EAD waiting period remains the same in duration, but the starting 
point shifts to an earlier position for asylum applicants who will file 
for an initial EAD under the (c)(8) category.
    DHS would begin to consider for parole on a case-by-case basis all 
noncitizens who have been referred to USCIS for a credible fear 
screening under the broader standard adopted by this IFR during the 
relatively short period between being referred to USCIS for a credible 
fear screening interview and the issuance of a credible fear 
determination. A parole grant does not constitute employment 
authorization, however, and the rule provides, in 8 CFR 
235.3(b)(2)(iii) and (b)(4)(ii), that noncitizens paroled pending 
credible fear screening will not be eligible for employment 
authorization based on that grant of parole from custody. Currently 
there are two Form I-765 classes, (a)(5), ``Granted Asylum Sec. 208,'' 
and (a)(10), ``Granted Withholding of Removal/243 (H),'' that could 
apply to noncitizens whose asylum applications are considered under the 
procedure established by this IFR. In the past, some parolees under 
these categories have been able to obtain EADs sooner than they would 
if they were explicitly subject to the filing clock that applies to a 
pending Form I-589.
    Given the two changes discussed above related to the EAD filings--
(1) the change in timing for when an EAD can be filed; and (2) the 
broadening of the standard under which certain noncitizens placed in 
expedited removal may be considered for parole before receiving a 
credible fear determination--some applicants may file for an EAD, even 
under the expectation that their asylum could be granted earlier, if 
they expect to receive an (a)(5) asylum granted EAD even sooner. In 
this sense, the potential for more rapid approvals of an EAD claim may 
be expected to provide a net pecuniary benefit, even considering a more 
expeditious asylum claim. Coupled with the expectation that some 
individuals may seek an EAD for the non-pecuniary benefit associated 
with its documentary value, we cannot determine if these countervailing 
influences might limit, or even completely absorb, any reductions in 
EAD filing for credible fear asylum applicants.
    Regardless of whether, under the rule, it is the more expeditious 
asylum grant or EAD approval that results in employment authorization, 
individuals who enter the labor force earlier are able to earn income 
earlier. The assessments of possible impacts rely on the implicit 
assumption that credible fear asylum seekers who receive employment 
authorization will enter and be embedded in the U.S. labor force. This 
assumption is justifiable for those whose labor force entry was 
effectuated by the EAD approval, as opposed to the grant of asylum. We 
believe this assumption is justifiable because applicants would 
generally not have expended the direct costs and opportunity costs of 
applying for an EAD if they did not expect to recoup an economic 
benefit. We also take the extra step of assuming these entrants to the 
labor force are employed. It is possible that some applicants who are 
eventually denied asylum are currently able to obtain employment 
authorizations--approved while their asylum application was pending. We 
do not know what the annual or current scale of this population is, but 
it is an expected consequence of this IFR that such individuals would 
not obtain employment authorizations in the future.
    The impact is attributable to the difference in days between when 
asylum would be granted under the rule and the current baseline. USCIS 
describes this distributional impact in more detail. Since a typical 
workweek is 5 days, the total day difference (``D'') can be scaled by 
0.714 (5 days/7 days) and then multiplied by the average wage (``W'') 
and the number of hours in a typical workday (8) to obtain the impact, 
as in the formula: D x 0.714 x W x 8. In terms of each actual workday, 
the daily distributional impacts at the wage bounds are $136.88 ($17.11 
x 8 hours) and $314.00 ($39.25 x 8 hours), respectively, on a per-
person basis, with a midrange average of $225.44.
    USCIS cannot expand the per-person per-day quantified impacts to a 
broader monetized estimate. Foremost, although Table 5 provides filing 
volumes for the asylum relevant EADs, we cannot determine how many 
individuals within this population would be affected. In addition, we 
cannot determine what the average day difference would be for any 
individual who could be impacted. To quantify the day difference, the 
Departments would need to simultaneously analyze the current and future 
interaction between the asylum grant and EAD approvals. Doing so for 
the current system is conceptually possible with a significant devotion 
of time and resources, but it is not possible to conduct a similar 
analysis for future cases without relying on several assumptions that 
may not be accurate.

[[Page 18205]]

As a result, we cannot extend the per-person cost (in terms of 
earnings) to an aggregate monetized cost, even if we knew either the 
population impacted or the day-difference average because an estimate 
of the costs would require both data points. The impact on labor 
earnings developed above has the potential to include both 
distributional effects (which are transfers) and indirect benefits to 
employers.\129\ The distributional impacts would be felt by asylum 
applicants who enter the U.S. labor force earlier than under current 
regulations in the form of increased compensation (wages and benefits). 
A portion of this compensation gain might be transferred to asylum 
applicants from others who are currently in the U.S. labor force or 
eligible to work lawfully. Alternatively, employers that need workers 
in the U.S. labor market may benefit from those asylum applicants who 
receive their employment authorizations earlier as a result of the IFR, 
gaining productivity and potential profits that the asylum applicants' 
earlier starts would provide. Companies may also benefit by not 
incurring opportunity costs associated with the next-best alternative 
to the immediate labor the asylum applicant would provide, such as 
having to pay existing workers to work overtime hours. To the extent 
that overtime pay could be reduced, some portion of this pay could be 
transferred from the workers to the companies.
---------------------------------------------------------------------------

    \129\ Transfer payments are monetary payments from one group to 
another that do not affect total resources available to society. See 
OMB, Circular A-4 at 14, 38 (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf (last visited Feb. 28, 2022) (providing further 
discussion of transfer payments and distributional effects).
---------------------------------------------------------------------------

    We do not know what the next-best alternative may be for those 
companies. As a result, the Departments do not know the portion of 
overall impacts of this IFR that are transfers or benefits, but the 
Departments estimate the maximum monetized impact of this IFR in terms 
of a daily, per-person basis compensation. The extent to which the 
portion of impacts would constitute benefits or transfers is difficult 
to discern and would depend on multiple labor market factors. However, 
we think it is reasonable to posit that the portion of impacts 
attributable to transfers would mainly be benefits, for the following 
reason: If there are both workers who obtain employment authorization 
under this rule and other workers who are available for a specific 
position, an employer would be expected to consider any two candidates 
to be substitutable to a high degree. There is an important caveat, 
however. There could be costs involved in hiring asylum seekers that 
are not captured in this discussion. As the U.S. economy recovers from 
the effects of the COVID-19 pandemic, there may be structural changes 
to the general labor market and to specific job positions that could 
impact the next-best alternatives that employers face. The Departments 
cannot speculate on how such changes in relation to the earlier labor 
market entry of some asylum applicants could mitigate the beneficial 
impacts for employers.
    The early possible entry into the labor force of some positive-
screened credible fear asylum applicants is not expected to change the 
composition of the labor market, as it would affect only the timing 
under which some individuals could enter the market. The Departments do 
not have reason to believe the overall U.S. labor market would be 
affected, given the relatively small population that is expected to be 
impacted. Moreover, some asylum seekers who currently enter the labor 
market with a pending asylum application may no longer be entering the 
labor market under this IFR if they receive a negative decision sooner 
on their asylum claim. Specifically, there could be individuals who 
receive positive credible fear determinations, but whose asylum 
applications are ultimately denied within 180 days of filing. Under 
this rule and the resultant shortened adjudication time frame, these 
individuals who otherwise would have been eligible to receive (c)(8) 
EADs no longer will be eligible because their asylum claims will have 
been adjudicated (and thus their asylum applications will no longer be 
pending) prior to the expiration of the waiting period required for 
(c)(8) filings. The lost compensation to these individuals could 
constitute a transfer to others in the U.S. workforce. Because we 
cannot predict how many people would be impacted in such a way, we are 
not able to quantify this impact.
    Furthermore, there may be tax impacts for the Government. It is 
difficult to quantify income tax impacts of earlier entry of some 
asylum seekers in the labor market because individual tax situations 
vary widely, but the Departments considered the effect of Social 
Security and Medicare taxes, which have a combined tax rate of 7.65 
percent (6.2 percent and 1.45 percent, respectively), with a portion 
paid by the employer and the same amount withheld from the employee's 
wages.\130\ With both the employee and employer paying their respective 
portions of Medicare and Social Security taxes, the total estimated 
accretion in tax transfer payments from employees and employers to 
Medicare and Social Security is 15.3 percent.\131\ The Departments will 
rely on this total tax rate where applicable. The Departments are 
unable to quantify other tax transfer payments, such as for Federal 
income taxes and State and local taxes. As noted above, the Departments 
do not know how many individuals with a positive credible fear 
determination will be affected, and what the average day-difference 
would be, and therefore the Departments cannot make an informed 
monetized estimate of the potential impact. It accordingly follows that 
the Departments cannot monetize the potential tax impacts of the IFR. 
However, the Departments can provide partial quantitative information 
by focusing on the workday earnings presented earlier. The workday 
earnings, at the wage bounds of $136.88 and $314.00, are multiplied by 
0.153 to obtain $20.94 and $48.04, respectively, with a midpoint of 
$34.49. These values represent the daily employment tax impacts per 
individual. The tax impacts per person would amount to the total day-
difference in earnings scaled by 0.714, to reflect a five-day workweek. 
Conversely, to the extent that this rule prevents a person from 
obtaining an EAD, there may be losses in tax revenue.
---------------------------------------------------------------------------

    \130\ See Internal Revenue Service, Publication 15 (Circular E), 
Employer's Tax Guide (Dec. 16, 2021), https://www.irs.gov/pub/irs-pdf/p15.pdf (last visited Feb. 28, 2022); see also Market Watch, 
More Than 44 Percent of Americans Pay No Federal Income Tax (Sept. 
16, 2018), https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16 
(last visited Mar. 5, 2022).
    \131\ Calculation: (6.2 percent Social Security + 1.45 percent 
Medicare) x 2 employee and employer losses = 15.3 percent total 
estimated tax loss to Government.
---------------------------------------------------------------------------

    Having developed partial (based on an individual basis) monetized 
impacts of this IFR, there are two important caveats applicable to the 
population of asylum applicants who have received a positive credible 
fear determination. First, as we detail extensively in the following 
subsection, there will be resource requirements and associated costs 
needed to make this IFR operational and effective. These changes will 
not occur instantaneously and may require months or even a year or more 
to fully implement. Although existing USCIS resources will be able to 
effectuate changes for some individuals rather quickly, others (and 
thus the entire population from an average perspective) will face delay 
in realizing the impacts. These individuals thus may face a delay in 
realizing benefits such as earlier

[[Page 18206]]

asylum determinations, income gains, and possible filing cost savings. 
Second, despite the possibility that some baseline EAD filers may 
choose not to file in the future, there could be mitigating effects 
that would reduce the volume decline for Form I-765(c)(8) submissions.
    In closing, we have noted that the impacts developed in this 
section apply to the population that receives a positive credible fear 
determination. Additionally, for the subset of this population that 
receives a negative asylum determination from USCIS, the possibility of 
de novo review of their claims by IJs may benefit some applicants by 
affording another opportunity for review and approval of their asylum 
claims.
    It is possible that the earnings impact described could overstate 
the quantified benefits directly attributable to receiving earlier 
employment authorization. For those who entered the labor market after 
receiving employment authorization and began to receive paid 
compensation from an employer, counting the entire amount received by 
the employer as a benefit may result in an overestimate. Even without 
working for wages, the time spent by an individual has value. For 
example, if someone performs childcare, housework, or other activities 
without paid compensation, that time still has value. Consequently, a 
more accurate estimate of the net benefits of receiving employment 
authorization under the proposed rule would attempt to account for the 
value of time of the individual before receiving employment 
authorization. For example, the individual and the economy would gain 
the benefit of the worker entering the workforce and receiving paid 
compensation but would lose the value of the worker's time spent 
performing non-paid activities. Due to the wide variety of non-paid 
activities an individual could pursue without employment authorization, 
it is difficult to estimate the value of that time. As an example, if 
50 percent of wages were a suitable proxy of the value for this non-
paid time, the day-impacts per person would be scaled by half 
accordingly.
b. Impacts to USCIS
i. Total Quantified Estimated Costs of Regulatory Changes
    In this subsection, the Departments discuss impacts on the Federal 
Government. Where possible, cost estimates have been quantified; 
otherwise they are discussed qualitatively. The total annual costs are 
provided only for those quantified costs that can be applied to a 
population.
Costs of Staffing to USCIS
    USCIS will need additional staffing to implement the provisions 
presented in this rule. The staffing requirement will largely depend on 
the volume of credible fear referrals. In addition to asylum officers, 
USCIS will require additional supervisory staff and operational 
personnel commensurate with the number of asylum officers needed. USCIS 
anticipates an increased need for higher-graded field adjudicators and 
supervisors to implement the provisions of this IFR. Approximately 92 
percent of the field asylum officers are currently employed at the GS-
12 pay level or lower.\132\ Under this model, USCIS will be assuming 
work normally performed by an IJ. EOIR data indicate that the weighted 
average salary was $155,089 in FY 2021 for IJs; $71,925 for Judicial 
Law Clerks (``JLCs''); $58,394 for Legal Assistants; $132,132 for DHS 
Attorneys; and $98.51 per hour for interpreters.\133\ Notably, entry-
level IJs are required to adjudicate a wider array of immigration 
applications than asylum officers, and their decisions, unlike those of 
current USCIS asylum officers, are not subject to 100 percent 
supervisory review. As such, under this IFR, USCIS asylum officers 
making determinations on statutory withholding of removal and CAT 
protection cases would be performing work at a GS-13 minimum level, 
considering they will be conducting adjudications traditionally 
performed only by IJs.\134\ In addition, first-line Supervisory Asylum 
Officers (``SAOs'') reviewing these decisions would be graded at a GS-
14.\135\ Currently, not all SAOs are at a grade GS-14. Aligning all 
first line SAOs to a GS-14 ensures operational flexibility and makes 
this position consistent with the similar work processes and functions 
performed by the first-line Supervisory Refugee Officer position.
---------------------------------------------------------------------------

    \132\ In 2021, the base salary for a GS-12 ranged from $66,829, 
at step 1, up to $86,881, at step 10. See OPM, Salary Table 2021-GS 
Incorporating the 1% General Schedule Increase Effective January 
2021, https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2021/GS.pdf (last visited Mar. 1, 2022) 
(``OPM Salary Table'').
    \133\ Weighted average base salaries across position, FY, and 
location are drawn from DOJ EOIR PASD analysis. Interpreter wages 
are presented hourly here because these positions are paid 
differently and not always on an annual basis. In 2021, the base 
salary for a GS-15 step 3 was $117,824 and step 4 was $121,506. See 
OPM Salary Table.
    \134\ In 2021, the base salary for a GS-13 step 1 was $79,468. 
See OPM Salary Table.
    \135\ In 2021, the base salary for a GS-14 step 1 was $93,907. 
See OPM Salary Table.
---------------------------------------------------------------------------

    Currently, USCIS refers all individuals who receive a positive 
credible fear determination to IJs at EOIR for consideration of the 
individuals' asylum claims. Based on historical EOIR data on the amount 
of time required to complete a typical hearing with a credible fear 
origin and only an application for asylum, the median duration for 
credible fear merit plus master hearings from FY 2016 through FY 2020 
was about 97 minutes, or 1.6 hours. Factoring in the EOIR weighted 
average salaries for the IJs, JLCs, DHS Attorneys, and interpreters 
required for EOIR to complete these hearings, we estimate the median 
cost to be $470.62 \136\ per hearing over the same time frame.
---------------------------------------------------------------------------

    \136\ Estimate were based on analysis provided by EOIR on May 
19, 2021, of median digital audio recording length data from all 
merits and master asylum hearings between FY 2016 and FY 2020. The 
five-year average estimated cost of hearings is based on 2,087 
assumed hours per year for the IJ, JLC, and DHS attorneys at the 
annual salaries shown, plus the hourly cost per interpreter. These 
annual values were multiplied by the respective sums of the annual 
median lengths of master and merits hearings for corresponding years 
to produce the five-year average cost per hearing of $470.62.
---------------------------------------------------------------------------

    USCIS analyzes a range of credible fear cases to estimate staffing 
requirement costs. At a lower bound volume of 75,000 credible fear 
cases, USCIS assumes it would receive fewer credible fear cases 
compared to prior years (apart from FY 2020, which had a lower number 
of credible fear cases due to the COVID-19 pandemic and resulting 
border closures). A volume of 300,000 credible fear cases is an upper 
bound, based on the assumption that nearly all individuals apprehended 
will be placed into expedited removal for USCIS to process. As shown in 
Table 3, the lowest number of credible fear cases received for FY 2016 
through FY 2019 was 79,842 in FY 2017, while the highest was 102,204 in 
FY 2019. DHS recognizes that the estimated volume of 300,000 is nearly 
three times the highest annual number of credible fear cases received, 
but DHS presents this as an upper bound estimate to reflect the 
uncertainty concerning an operational limit on how many credible fear 
cases could be handled by the agency in the future. Inclusion of this 
unlikely upper bound scenario is intended only to present information 
concerning the potential costs should the agency consider an 
intervention at the highest end of the range. USCIS expects volumes to 
fall within the lower and upper bounds and therefore we also provide a 
primary estimate of 150,000 credible fear cases.\137\
---------------------------------------------------------------------------

    \137\ The primary estimate of 150,000 is not equal to the 
average of the lower volume of 75,000 credible fear cases and the 
upper volume of 300,000 credible fear cases. Rather, this primary 
estimate, based on OCFO modeling, represents the number of cases 
that the agency may reasonably expect. The OCFO volume levels were 
developed as a guide for several possible ranges that could be 
realized in the future, taking into account variations in the 
populations. The actual volume levels could be above or below these 
levels.

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[[Page 18207]]

    USCIS has estimated the staffing resources it will need to 
implement this rule. At the three volume levels of credible fear cases, 
USCIS plans to hire between 794 and 4,647 total new positions, with a 
primary estimate of 2,035 total new positions.\138\ The estimated costs 
associated with payroll, non-payroll, and other general expenses--
including interpreter services, transcription services, facilities, 
physical security, information technology (``IT'') case management, and 
other contract, supplies, and equipment--are anticipated to begin in FY 
2022.
---------------------------------------------------------------------------

    \138\ The primary estimate of 2,035 total new positions is not 
equal to the average of the lower- 794 and upper-bound 4,647 
estimates. Rather, this primary estimate, based on a staffing 
allocation model, represents the number of staff in a mix of 
occupations at a mix of grade levels that the agency may need to 
hire to handle the volume of credible fear cases. The staffing is 
commensurate with OCFO model volume levels, which were developed as 
a guide for several possible ranges that could be realized in the 
future, taking into account variations in the populations. Actual 
volume levels and hence actual staffing levels could be above or 
below these levels.
---------------------------------------------------------------------------

    The costs of this rule are likely to include initial costs 
associated with the hiring and training of staff, and those costs would 
continue in future years. Additionally, as was explained in Section G 
of the NPRM, the Departments expect a phased approach to implementation 
due to budgetary and logistical factors. 86 FR 46922. The cost 
estimates developed below focus on three volume bands and are based on 
initial data and staffing models that captured initial implementation 
costs accruing to FY 2022 and FY 2023. These estimates therefore 
partially capture the likely phasing of resourcing and costs, but not 
the full phasing that could extend into further years. The Departments 
do not currently have the appropriate data to include an implementation 
of the IFR in their estimates of quantified resource costs. However, we 
do not believe a partial implementation significantly skews the 
expected costs of this rule. We offer some additional comments 
concerning this phased implementation as it relates to costs at the 
conclusion of this analysis.
    The Departments recognize that initial costs are likely to spill 
into future years depending on the pace of hiring; employee retention; 
obtaining and signing contracts (for interpreters, transcription, and 
facilities); and training. For the remainder of FY 2022, DHS will 
finalize job descriptions, post new positions, and begin the hiring 
process to onboard some new Federal employees, and DHS will work to 
procure new contracts for interpreters, transcription, facilities, and 
security staff as its current fiscal situation allows. In FY 2022, the 
implementation costs are expected to range between $179.8 million and 
$952.4 million with a primary cost estimate of $438.2 million, assuming 
all staff is hired and corresponding equipment needs are fulfilled in 
the fiscal year. DHS recognizes that, operationally, it may take more 
time to attain the necessary staffing and equipment. However, we are 
not able to reliably predict those timelines due to the uncertain 
nature of the recruitment and onboarding processes. Any delay in hiring 
would reduce the first-year costs of implementation, as explained 
further below. The itemized planned resources are presented in Table 7.

           Table 7--Estimated USCIS FY 2022 Funding Requirements by Volume of Credible Fear Referrals
                                                [$ in thousands]
----------------------------------------------------------------------------------------------------------------
                                                                     75k cases      150k cases      300k cases
----------------------------------------------------------------------------------------------------------------
(A) Staffing....................................................        $140,507        $355,175        $806,697
    Payroll *...................................................         113,602         285,983         648,257
    Non-Payroll.................................................          26,905          69,192         158,440
(B) General Expenses............................................          39,313          83,025         145,682
    Interpreter Services........................................           6,615          19,136          44,179
    Transcription Services......................................           9,366          26,697          37,362
    Facilities..................................................           6,635          17,606          40,865
    Physical Security...........................................             623           1,654           3,839
    IT Case Management..........................................          12,500          12,500          12,500
    Other Contract/Supplies/Equipment...........................           3,574           5,432           6,937
                                                                 -----------------------------------------------
    Total.......................................................         179,820         438,200         952,379
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis from RAIO and USCIS OCFO, May 19, 2021.

    In FY 2023, USCIS estimates costs between $164.7 million and $907.4 
million, with a primary estimate of $413.6 million, as shown in Table 
8. The reductions as compared to FY 2022 are mostly attributable to 
non-recurring, one-time costs for new staff and upgrades to IT case 
management systems, although a decline in costs pertaining to other 
contracts, supplies, and equipment is also expected. The largest 
expected cost decrease is for IT case management, which is estimated to 
decline from $12.5 million in FY 2022 down to $4.375 million in FY 
2023. Meanwhile, costs for interpreter and transcription services, 
facilities, and physical security are expected to rise in FY 2023 
because of resource cost increases. For FY 2024 through FY 2031 of 
implementation, DHS expects resource costs to stabilize.

           Table 8--Estimated USCIS FY 2023 Funding Requirements by Volume of Credible Fear Referrals
                                                [$ in thousands]
----------------------------------------------------------------------------------------------------------------
                                                                     75k cases      150k cases      300k cases
----------------------------------------------------------------------------------------------------------------
(A) Staffing....................................................        $133,427        $337,047        $766,159
    Payroll*....................................................         122,753         309,758         703,852

[[Page 18208]]

 
    Non-Payroll.................................................          10,674          27,289          62,307
(B) General Expenses............................................          31,267          76,554         141,249
    Interpreter Services........................................           6,813          19,710          45,504
    Transcription Services......................................           9,647          27,498          38,483
    Facilities..................................................           6,834          18,134          42,091
    Physical Security...........................................             642           1,704           3,954
    IT Case Management..........................................           4,375           4,375           4,375
    Other Contract/Supplies/Equipment...........................           2,956           5,133           6,842
                                                                 -----------------------------------------------
    Total.......................................................         164,694         413,601         907,408
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis from RAIO and OCFO, May 19, 2021.

    To estimate the costs for each category itemized in Tables 7 and 8, 
USCIS considered the inputs for each. USCIS expects to hire most new 
staff at the GS-13, step 1 level, on average, and most of those hired 
will serve as asylum officers. As stated, these officers will be making 
determinations on statutory withholding of removal and withholding and 
deferral of removal under the CAT, so their pay will be higher than the 
current asylum officer pay, which is at a GS-12 level. Additionally, 
USCIS assumes step 1 because these employees are expected to be new to 
the position. See 5 U.S.C. 5333 (providing that new appointments 
generally ``shall be made at the minimum rate of the appropriate 
grade''). Payroll costs also include Government contributions to non-
pay benefits, such as healthcare and retirement. Although payroll is 
the greatest estimated cost to hiring staff, non-payroll costs include 
training, equipping, and setting staff up with resources such as 
laptops, cell phones, and office supplies. For example, asylum officers 
have been required to attend and successfully complete a multi-week 
residential training at a Federal Law Enforcement Training Center 
(``FLETC'') as a condition of their continued employment. The estimated 
cost per student (including FLETC enrollment costs, travel, etc.) was 
approximately $7,000. However, USCIS is currently engaging a virtual 
training that is approximately $5,000 per student. Although the 
training is expected to shift back to in-person training in the future, 
we currently do not have a projected date for this shift. To fully 
furnish and equip new employees, USCIS estimates a cost of $3,319 per 
asylum employee. Costs for new equipment would be largely commensurate 
with the increase in staffing levels.
    In addition to costs associated with hiring new staff, DHS 
anticipates that it will need to both increase funding on existing 
contracts and procure new ones. As a result of this IFR, the need for 
interpretation services will increase as the number of asylum 
interviews USCIS performs rises. Current interpreter contracts cannot 
absorb this expected increase. Using current contracts, USCIS applied 
the current cost model to the estimated increase in case volumes in 
order to estimate costs. The facilities and physical security estimates 
were similarly based on current cost models that were expanded to 
account for additional employees. Additional contract support will also 
be needed for transcription services to create a written record of the 
asylum hearing because such staff are not currently employed by USCIS. 
To create transcription service estimates, USCIS applied EOIR's current 
cost model to USCIS's estimated increase in case volumes. DHS also 
anticipates costs associated with general expenses associated with 
miscellaneous contract, supplies, and equipment commensurate with the 
increase in staff. The timing of these costs will depend on the hiring 
timeline but are expected to commence in the first year. DHS recognizes 
that if it takes more than one year to hire and equip asylum employees, 
costs may instead be experienced in later years.
Costs of IT Upgrades for USCIS
    DHS is planning upgrades to internal management systems and 
databases as a requirement to implement this IFR. The estimated cost of 
these upgrades in FY 2022 is a one-time cost of $12.5 million that will 
impact virtually all processing and record-keeping systems at USCIS. 
This cost embodies funds for enhancements and refurbishment to the 
USCIS global case management system that would support features such as 
ensuring transition of positive credible fear screening cases to the 
hearing process currently provided for affirmative asylum cases; 
support for withholding of removal and CAT adjudication features; non-
detained scheduling enhancements; and capabilities to accept and 
provide review for electronic documents. The one-time cost also 
includes funds earmarked for teams that support integrations with other 
internal and external-facing systems, such as record-keeping; identity 
management and matching; reporting and analytics; applicant-facing 
interfaces; and other key USCIS systems, as well as external systems at 
ICE, CBP, and DOJ.\139\
---------------------------------------------------------------------------

    \139\ Although this plan tracks the FY 2022 time frame, 
variations in the pace of Federal and contractor hiring and 
retention during the performance period, unforeseen legal or other 
policy challenges to any electronic process, and the ability of 
relevant offices to truly operationalize minimal functionality given 
their own staffing constraints to handle manually any additional 
process automations, could delay some implementation into FY 2023.
---------------------------------------------------------------------------

    Included in these $12.5 million in costs are the costs to pay staff 
to make these upgrades. DHS estimates between 30 and 40 individuals, 
with a little over half being contract personnel and the rest being 
Federal employees, would be involved (either part- or full-time) in the 
implementation of these enhancements through FY 2022. The Federal 
personnel would mainly comprise GS-14 and GS-15 level personnel and 
supervisory and management staff.
    IT costs are expected to decline in FY 2023 and remain flat into 
the future at $4.375 million. This amount accounts for ongoing 
operations and maintenance costs. New features or upgrades are not 
expected at this time, but if they were to be needed in the future, 
those enhancements would result in additional costs not included here.
    At present, DHS does not envision its planned IT upgrades requiring 
new facilities or additional structures.

[[Page 18209]]

    Importantly, DHS's upgrades are expected to coincide with the first 
electronic processing of the Form I-589. Since this will be a 
significant change for processing asylum applications, unexpected 
errors or system changes could have impacts on this project as well. 
Completion of the upgrades is also dependent on the availability of 
ICE, CBP, and DOJ systems to integrate with USCIS systems to provide 
for streamlined implementation. However, because this plan was 
developed outside the scope of this rule, we do not attribute costs to 
it.
    As described earlier in this analysis, we expect no net change 
regarding biometrics collection germane to asylum applications for 
individuals with a positive credible fear determination. We also 
detailed how factors concomitant to more expeditious EAD approvals make 
it impossible to estimate the magnitude or even direction of the net 
change in Form I-765 filing volumes (related to asylum or withholding 
of removal), and, hence, commensurate biometrics collections (and fee 
payments).
    Given the parameters of this rule, however, any net change in 
biometrics would not impose new costs on the Federal Government. The 
maximum monthly volume of biometrics submissions allowed by the current 
ASC contract is 1,633,968 and the maximum annual volume is 
19,607,616.\140\ The average number of individuals that submitted 
biometrics annually across all USCIS forms for the period FY 2016 
through FY 2020 was 3,911,857.\141\ Given that the average positive-
screened credible fear population is 59,280 (Table 3), which is 1.52 
percent of the biometrics volume, a volume change would not encroach on 
the ASC contract bounds.
---------------------------------------------------------------------------

    \140\ Data and information were provided by the USCIS IRIS 
Directorate. The average annual biometrics volumes were obtained 
through the CPMS database. The cost of the contract reflects the 
most recent contract update, dated June 18, 2020.
    \141\ Data and information were provided by USCIS IRIS 
Directorate, utilizing the CPMS database.
---------------------------------------------------------------------------

    To better illustrate the limited impact of biometrics collection on 
USCIS, one scenario that we do account for relates to costs for a 
particular USCIS-ASC district. The DHS-ASC contract was designed to be 
flexible to reflect variations in benefit request volumes. The pricing 
mechanism within this contract embodies such flexibility. Specifically, 
the ASC contract is aggregated by USCIS district, and each district has 
five volume bands with its pricing mechanism. The incumbent pricing 
strategy takes advantage of economies of scale because larger 
biometrics processing volumes have smaller corresponding biometrics 
processing prices.\142\ For example, Table 9 provides an example of the 
pricing mechanism for a particular USCIS district. This district incurs 
a monthly fixed cost of $25,477.79, which will cover all biometrics 
submissions under a volume of 8,564. However, the price per biometrics 
submission decreases from an average cost of $6.66 for volumes between 
a range of 8,565 and 20,524 to an average of $5.19 once the total 
monthly volume exceeds 63,503. In other words, the average cost 
decreases when the biometrics submissions volume increases (jumps to a 
higher volume band).
---------------------------------------------------------------------------

    \142\ ``Economies of scale'' refers to a scenario where a 
greater quantity of output produced (in this case, more biometric 
service appointments) results in a lower per-unit fixed cost or per-
unit variable cost to produce that output.

     Table 9--Example of Pricing Mechanism for a USCIS District Processing Biometrics Appointments, FY 2021
----------------------------------------------------------------------------------------------------------------
              District X                      Volume band         Minimum volume  Maximum volume       Costs
----------------------------------------------------------------------------------------------------------------
Baseline: Fixed price per month......  AA.......................               0           8,564      $25,477.79
Fixed price per person processed.....  AB.......................           8,565          20,524            6.66
Fixed price per person processed.....  AC.......................          20,525          31,752            5.94
Fixed price per person processed.....  AD.......................          31,753          63,504            5.53
Fixed price per person processed.....  AE.......................          63,505          95,256            5.19
----------------------------------------------------------------------------------------------------------------
Source: USCIS, IRIS Directorate, received May 10, 2021.

    At the district level, since there are small marginal changes to 
costs in terms of volumes, it would take a substantial change in 
volumes for a particular district to experience a significant change in 
costs for that district. If biometrics volumes increase on net, there 
could be small marginal, and hence, average, cost declines; in 
contrast, if volumes decline, some of those marginal costs might not be 
realized.
    Having developed the costs for USCIS to implement the rule, this 
section brings the total costs together as annual inputs that are 
discounted over a 10-year horizon. At the three population bounds, the 
inputs are captured in Table 10. The FY 2022 and FY 2023 costs are from 
Tables 7 and 8. For FY 2024 through FY 2031, human resources cost 
increases. As stated earlier, USCIS expects positions to be filled at 
step 1 for each GS level, so in years where employees remain at the 
same step for more than one year, these estimates account only for 
human resource cost increases (FYs 2026, 2028 and 2030). The general 
non-IT cost increases account for expected contract pricing increases. 
Finally, IT costs are expected to remain flat at $4.375 million into 
the future, which accounts for ongoing operations and maintenance 
costs.

                          Table 10--Monetized Costs of the Interim Final Rule to USCIS
                                         [In undiscounted 2020 dollars]
----------------------------------------------------------------------------------------------------------------
                                       Time Period: FYs 2022 through 2031
-----------------------------------------------------------------------------------------------------------------
                                                       General (non-IT)
               FY                   Human resources          cost           IT expenditure       Annual total
----------------------------------------------------------------------------------------------------------------
                                  10A. Low Population Bound (75k Annual Cases)
----------------------------------------------------------------------------------------------------------------
2022............................        $140,507,000         $26,813,000         $12,500,000        $179,820,000

[[Page 18210]]

 
2023............................         133,427,000          26,892,000           4,375,000         164,694,000
2024............................         137,429,810          27,698,760           4,375,000         169,503,570
2025............................         141,552,704          28,529,723           4,375,000         174,457,427
2026............................         142,968,231          29,385,614           4,375,000         176,728,846
2027............................         147,257,278          30,267,183           4,375,000         181,899,461
2028............................         148,729,851          31,175,198           4,375,000         184,280,049
2029............................         153,191,747          32,110,454           4,375,000         189,677,201
2030............................         154,723,664          33,073,768           4,375,000         192,172,432
2031............................         159,365,374          34,065,981           4,375,000         197,806,355
                                 -------------------------------------------------------------------------------
    10-year total...............       1,459,152,660         300,011,682          51,875,000       1,811,039,342
----------------------------------------------------------------------------------------------------------------
                                10B. Primary Population Bound (150k Annual Cases)
----------------------------------------------------------------------------------------------------------------
2022............................         355,175,000          70,525,000          12,500,000         438,200,000
2023............................         337,047,000          72,179,000           4,375,000         413,601,000
2024............................         347,832,504          74,344,370           4,375,000         426,551,874
2025............................         358,963,144          76,574,701           4,375,000         439,912,845
2026............................         362,552,776          78,871,942           4,375,000         445,799,718
2027............................         374,154,464          81,238,100           4,375,000         459,767,565
2028............................         377,896,009          83,675,243           4,375,000         465,946,252
2029............................         389,988,681          86,185,501           4,375,000         480,549,182
2030............................         393,888,568          88,771,066           4,375,000         487,034,634
2031............................         406,493,002          91,434,198           4,375,000         502,302,200
                                 -------------------------------------------------------------------------------
    10-year total...............       3,703,991,149         803,799,121          51,875,000       4,559,665,270
----------------------------------------------------------------------------------------------------------------
                                 10C. High Population Bound (300k Annual Cases)
----------------------------------------------------------------------------------------------------------------
2022............................         806,697,000         133,182,000          12,500,000         952,379,000
2023............................         766,159,000         136,874,000           4,375,000         907,408,000
2024............................         793,740,724         140,980,220           4,375,000         939,095,944
2025............................         822,315,390         145,209,627           4,375,000         971,900,017
2026............................         830,538,544         149,565,915           4,375,000         984,479,459
2027............................         860,437,932         154,052,893           4,375,000       1,018,865,824
2028............................         869,042,311         158,674,480           4,375,000       1,032,091,791
2029............................         900,327,834         163,434,714           4,375,000       1,068,137,548
2030............................         909,331,112         168,337,755           4,375,000       1,082,043,868
2031............................         942,067,032         173,387,888           4,375,000       1,119,829,921
                                 -------------------------------------------------------------------------------
    10-year total...............       8,500,656,879       1,523,699,492          51,875,000      10,076,231,371
----------------------------------------------------------------------------------------------------------------

    The totals reported in Table 10 are collated in Table 11, with the 
10-year discounted present values, each at a 3 percent and 7 percent 
discount rate. Because the cost inputs differ for each year, the 
average annualized equivalence costs are not uniform across discount 
rates.

                                                   Table 11--Monetized Costs of the Interim Final Rule
                                                             [In millions, FY 2020 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Undiscounted               3-percent                          7-percent
                         Population level                          -------------------------------------------------------------------------------------
                                                                     10-year cost    10-year cost    Annualized cost    10-year cost    Annualized cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low...............................................................        $1,811.0        $1,538.8             $180.4        $1,260.8             $179.5
Primary...........................................................         4,559.7         3,871.3              453.8         3,168.9              451.2
High..............................................................        10,076.2         8,550.3            1,002.4         6,993.7              995.8
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As discussed in Section G of the NPRM, and mentioned earlier in 
this preamble, DHS expects this rule to be implemented in phases. Our 
quantitative cost estimates assume that the funding for the rule is 
essentially available when the rule takes effect, and that 
implementation costs are spread out over several years due to timing 
effects related to operational and hiring impacts. In reality, 
budgeting constraints and variations are expected to play a prominent 
role in the phasing in of the program. Our estimates thus account 
partially but not fully for such phasing. Incorporating additional 
phasing into resource allocation models is complex because of the 
interaction

[[Page 18211]]

between initial and recurring costs, and DHS is not prepared at this 
time to attempt to fully phase in the costs quantitatively. Despite 
this limitation, we do not believe that the true costs would be 
significantly different than those presented above. A phased 
implementation would not skew the actual costs, but rather allocate 
them to different timing sequences. In fact, from a discounting 
perspective, the present value of the costs would actually be lower if 
they were allocated to future years. DHS will continue to evaluate all 
pertinent data and information related to the phasing approach, and, if 
feasible, may include refined estimates of the resource-related costs 
in the final rule.
    As of the final drafting of this IFR, DHS believes that, through FY 
2022, new staff positions can be funded with existing resources, which 
would support a minimum processing level of 50,000 annual family-unit 
cases. For the medium and high-volume bands of 150,000 and 300,000 
annual cases, respectively, DHS does not believe it can meet the full 
staffing requirements with current funding. Based on preliminary 
modeling, it could take up to three years to fully staff the medium-
volume band and up to five years to staff the high-volume band.\143\
---------------------------------------------------------------------------

    \143\ These figures are based on preliminary results of staffing 
and resource allocation estimates provided by DHS's USCIS RAIO 
Directorate, Asylum Division; information was obtained on July 7, 
2021.
---------------------------------------------------------------------------

    If the medium- and high-volume bands of 150,000 and 300,000 were to 
be funded through a future fee rule, it would increase fees by an 
estimated weighted average of 13 percent and 26 percent respectively. 
This estimated increase would be attributable to the implementation of 
the asylum officer portions of the IFR only, and it is provided to show 
the magnitude of the impact that implementation of this IFR would have 
beyond whatever other increases might be included in a future fee rule. 
The 13 percent or 26 percent estimated weighted average increase would 
be in addition to any changes in the Immigration Examinations Fee 
Account non-premium budget.
ii. Intra-Federal Government Sector Impacts
    This rule is expected to shift the initial case processing of some 
asylum and protection claims from EOIR to USCIS. We present this shift 
in case processing as new resource costs for USCIS because USCIS would 
incur costs such as hiring new staff and funding new IT upgrades. The 
IJs at EOIR will continue to remain at DOJ and work on other high-
priority matters. The IJs are expected to continue to work on cases in 
which USCIS does not grant asylum because individuals whose asylum 
claims are not granted will be referred to EOIR for a streamlined 
section 240 removal proceeding. Cases in which USCIS grants asylum, 
however, would not receive further review within EOIR. Accordingly, 
every such case would constitute a direct reduction in new cases that 
EOIR would have to adjudicate. Given EOIR's significant pending 
caseload of approximately 1.3 million cases, reducing the number of 
cases referred to EOIR by 11,250 to 45,000 (assuming that approximately 
15 percent of cases are granted, based on historical data as described 
above) \144\ will enable EOIR to focus its resources on addressing 
existing pending cases and reducing the growth of the overall pending 
caseload. A reduction in the pending caseload may reduce the overall 
time required for adjudications because dockets would not have to be 
set as far into the future. This reduction in turn would better enable 
EOIR to meet its mission of fairly, expeditiously, and uniformly 
interpreting and administering the Nation's immigration laws, including 
granting relief or protection to noncitizens who qualify.
---------------------------------------------------------------------------

    \144\ Calculations: 75,000 cases x 15 percent = 11,250; 300,000 
cases x 15 percent = 45,000.
---------------------------------------------------------------------------

c. Familiarization Costs, Benefits, and Transfers of Possible Early 
Labor Market Entry
    It is possible that there will be familiarization costs associated 
with this IFR. It is expected that applicants and their support 
networks will incur costs to read and develop an understanding of this 
rule and the associated changes in the current asylum process. If, for 
example, attorneys are utilized, the cost could be $103.81 per hour, 
which is the average hourly wage for lawyers including the full cost of 
benefits.\145\ As of the time of this analysis, there are approximately 
155,000 words in this IFR. Although we could not identify formal 
studies on the subject, some reports suggest that, on average, a person 
reads about 250 words per minute, though there can be variation 
according to individual attributes and type of material being read. 
Based on the word count at the time of this analysis, it would thus 
take about 10.3 hours \146\ to read the rule. At the burdened wage for 
lawyers, this would be about $612.48 per review. If each individual in 
the population required such a reviewer, the total familiarization cost 
would be about $76.3 million, which would potentially be incurred 
during the first year the rule is effective.\147\ Since this estimate 
assumes each individual would hire an attorney unfamiliar with this 
rule, it is likely to be an overestimate of actual familiarization 
costs.
---------------------------------------------------------------------------

    \145\ For the average wage for lawyers, the Departments rely on 
BLS statistics. See BLS, May 2020 National Occupational Employment 
and Wage Estimates, https://www.bls.gov/oes/2020/may/oes_nat.htm#00-0000 (last visited Mar. 1, 2022).
    Calculation: $71.59 x 1.45 benefits burden = $103.81 (rounded).
    \146\ Calculation: 155,000 words/250 words per minute = 620 
minutes; 620 minutes/60 minutes per hour = 10.3 hours (rounded).
    \147\ The benchmark of 250 words per minute applies to most 
adults, according to several reports. See, e.g., HealthGuidance.org, 
What Is the Average Reading Speed and the Best Rate of Reading? 
(Jan. 3, 2020), https://www.healthguidance.org/entry/13263/1/what-is-the-average-reading-speed-and-the-best-rate-of-reading.html (last 
visited Feb. 28, 2022); ExecuRead, Speed Reading Facts, https://secure.execuread.com/facts/ (last visited Feb. 28, 2022). It is 
noted that the reading of technical material can be slower than 
other types of documents. Because this document is technical in some 
ways, the actual review time might be higher, thus resulting in 
higher familiarization costs than reported herein. Calculation: 10.3 
hours x $103.81 per hour = $1,069.24; $1,069.24 x 71,363 = $76.3 
million.
---------------------------------------------------------------------------

    The rule offers other benefits to asylum applicants and the 
Government. Although we cannot precisely parse the portion of the IFR's 
impact constituting transfers and the portion constituting costs, we 
believe that most of the distributional effects will comprise transfers 
that are beneficial to some asylum applicants (which we calculated on a 
per-person, workday basis), as opposed to costs. These transfers may 
impact the support network of the applicants. This network could 
include public and private entities, and it may comprise family and 
personal friends; legal services providers and advisors; religious and 
charity organizations; State and local public institutions; educational 
providers; and non-governmental organizations. To the extent that some 
individuals may be able to earn income earlier, burdens on this support 
network may be lessened and the tax impacts could be beneficial at the 
local or State level. In addition, as described above, it will take 
time for USCIS to make the requisite resourcing and staffing changes 
needed to fully effectuate the changes through which the impacts could 
be realized. In other words, there is likely to be a delay ranging from 
several months to more than a year for a sizeable portion of the 
impacts to begin to be realized. As a result, resources and efforts 
related to the applicants' support networks can be expected to be 
maintained in the short to medium term.

[[Page 18212]]

    In addition to the likely pecuniary benefits associated with early 
labor force entry, there could be other benefits. As a result of this 
rule, DHS will begin to consider parole on a case-by-case basis for 
noncitizens who have been referred to USCIS for a credible fear 
screening under an expanded set of factors. Allowing for parole to be 
considered for more individuals in Government custody could allow for 
resource redistribution within DHS, as DHS might be able to shift 
resources otherwise dedicated to the transportation and detention of 
these individuals and families. This redistribution would allow DHS to 
prioritize the use of its limited detention bed space to detain those 
noncitizens who pose the greatest threats to national security and 
public safety while facilitating the expanded use of the expedited 
removal process to order the removal of those who make no fear claim or 
who express a fear but subsequently fail to meet the credible fear 
screening standard after interview by an asylum officer (or, if 
applicable, by an IJ). DHS, however, does not know how many future 
referrals for a credible fear screening will be eligible for parole; 
therefore, DHS cannot make an informed monetized estimate of the impact 
of this potential resource redistribution.
    This rule presents substantial costs for USCIS, especially as costs 
are incurred to upgrade IT systems and begin hiring and training new 
staff. However, there are several expected qualitative benefits 
associated with the increased efficiency that would enable many 
individuals determined to have a credible fear of persecution or 
torture to move through the asylum adjudication or removal process more 
expeditiously than through the current process. Currently, it takes 
anywhere from eight months to five years for individuals claiming 
credible fear to have a final asylum determination made for their case. 
Under this rule, it is expected that USCIS will reach a decision on the 
merits of an asylum application within about 60 days of the 
application's filing date for most cases. As a result, individuals who 
are granted asylum by USCIS would likely experience a much-reduced wait 
time for their asylum determination. Those who are not granted asylum 
by USCIS are also expected to receive a final decision (either denial 
of asylum and issuance of a removal order or grant of asylum by an IJ) 
faster than under the current procedures for cases originating in 
credible fear screening. The timelines of 8 CFR 1240.17 provide for the 
streamlined removal proceedings to conclude within 90 days of service 
of an NTA (that is, within approximately 5 months of the application's 
filing date) in a typical case, in the absence of continuances or 
extensions. Greater efficiencies in the adjudicative process could lead 
to individuals spending less time in detention, which is a benefit to 
both the individuals and the Federal Government. Another benefit is 
that EOIR will not see the cases in which USCIS grants asylum, which we 
estimate as at least a 15 percent reduction in its overall credible 
fear workload.\148\ The Departments anticipate this reduction will help 
mitigate the number of cases pending in immigration court.
---------------------------------------------------------------------------

    \148\ Based on the five-year (FY 2017 through FY 2021) average, 
an estimated 15 percent of EOIR asylum applicants were granted 
asylum in cases originating with a credible fear claim. See EOIR, 
Adjudications Statistics: Asylum Decision and Filing Rates in Cases 
Originating with a Credible Fear Claim (Jan. 19, 2022), https://www.justice.gov/eoir/page/file/1062976/download. Calculation: FY 
2017 to FY 2021 grant rates (14.02 percent) + (16.48 percent) + 
(15.38 percent) + (16.60 percent) + 14.32 percent)/5 = 15 percent 
average (rounded).
---------------------------------------------------------------------------

    Additionally, this benefit will extend to individuals granted or 
not granted asylum faster than if they were to go through the current 
process with EOIR. For cases that are referred to EOIR, an asylum 
officer will have already prepared the equivalent of Form I-589, 
gathered evidence, and provided time for individuals to obtain counsel 
and request necessary documents from their home country, if desired. 
Having credible fear cases fully developed by an asylum officer will 
enable IJs to focus their efforts on the merits of a case instead of 
developing it anew, thus resulting in prompt IJ review. For those 
credible fear cases in which an individual receives a positive screen 
but a decision not granting the individual's asylum claim, USCIS 
recognizes that some streamlined section 240 removal proceedings will 
conclude with little expenditure of EOIR resources--if, for example, 
the applicant does not contest the asylum officer's decision. 
Therefore, the benefit to EOIR under the new procedures could be 
greater than the Departments are able to currently quantify.
    The reduction of credible fear cases that EOIR would need to 
process would enable EOIR to focus its resources on addressing existing 
pending cases and reducing the growth of the overall pending caseload. 
It would also allow EOIR to shift some resources to other work. We 
cannot currently make a one-to-one comparison between the work time 
actually spent on credible fear cases between EOIR judges and USCIS 
asylum officers, but if there is a reduction in average work time spent 
on cases, there could be cost savings for EOIR, though it is emphasized 
that these cost savings would not be budgetary. Further, this rule may 
slow the growth of the number of Form I-765s for pending asylum 
applicants. As explained above, if some individuals are granted asylum 
faster than under current conditions, some applicants in this process 
may choose not to file for an EAD. This could result in cost savings to 
applicants, as discussed, and it would also reduce USCIS's adjudication 
burden.
    The Departments assess that noncitizens placed into expedited 
removal proceedings and the new streamlined 240 procedures established 
by this rule will more likely receive a prompter adjudication of their 
claims for asylum, withholding of removal, or CAT protection than they 
would under the existing regulations. Depending on the individual 
circumstances of each case, this IFR could mean that such noncitizens 
would likely not remain in the United States--for years, potentially--
pending resolution of their claims, and those who qualify for asylum 
will be granted asylum several years earlier than they are under the 
present process.
    Overall, the anticipated operational efficiencies from this rule 
may provide for a prompter grant of protection to qualifying 
noncitizens and ensure that those who do not qualify for relief or 
protection are removed sooner than they would be in the absence of this 
rulemaking. Relative to the NPRM, the changes in this IFR may result in 
smaller overall operational efficiencies for DHS because attorneys from 
the ICE Office of the Principal Legal Advisor (``OPLA'') will need to 
participate in the streamlined section 240 removal process. With 
respect to DHS, the IFR's adoption of streamlined section 240 
proceedings in place of the NPRM's proposed IJ application review 
proceedings means that DHS attorneys will necessarily participate in 
immigration court when the asylum officer does not grant asylum.\149\ 
Likewise, with respect to EOIR, streamlined section 240 proceedings may 
require somewhat greater immigration court resources than would the 
optional IJ application review proceedings proposed in the NPRM. 
Considering both quantifiable and

[[Page 18213]]

unquantifiable benefits and costs, the Departments believe that the 
aggregate benefits of the rule would amply justify the aggregate costs.
---------------------------------------------------------------------------

    \149\ On the other hand, relative to the baseline, the reduced 
number of cases that reach immigration court as a result of this 
rule, as described above, will translate into a workload reduction 
for DHS's OPLA, just as for EOIR, enabling DHS attorneys to dedicate 
more time to other high-priority matters.
---------------------------------------------------------------------------

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (``RFA''), 
imposes certain requirements on Federal agency rules that are subject 
to the notice-and-comment requirements of the APA. See 5 U.S.C. 603(a), 
604(a). This IFR does not directly regulate small entities and is not 
expected to have a direct effect on small entities. Rather, this IFR 
regulates individuals, and individuals are not defined as ``small 
entities'' by the RFA. See 5 U.S.C. 601(6). Although some employers 
that qualify as small entities \150\ could experience costs or transfer 
effects, these impacts would be indirect. Based on the evidence 
presented in this analysis and throughout this preamble, DHS certifies 
that this IFR would not have a significant economic impact on a 
substantial number of small entities.
---------------------------------------------------------------------------

    \150\ The definition of ``small entity'' includes ``small 
business[es].'' See 5 U.S.C. 601(3).
---------------------------------------------------------------------------

    Nonetheless, in connection with the NPRM, USCIS examined the 
potential impact of this rule on small entities, 86 FR 46938, and 
several commenters provided feedback about the rule's impact.
    Comments: A commenter claimed that the prior analysis did not 
adequately analyze the impact on small entities and that the rule 
should therefore be withdrawn. The comment asserted that the rule's 
substantial changes would entail extensive legal preparation, 
interpretation, explanation, and evidentiary efforts by the 
representatives of the impacted asylum seekers. These changes would 
stand to affect the resources and revenue of both private attorneys and 
non-profit organizations, including small entities. Because the rule, 
according to the commenter, would increase the complexity of the asylum 
system, these entities could either lose money or respond by charging 
higher fees. The latter response, the commenter asserted, would push 
more clients to proceed on their own behalf.
    In addition, the commenter claimed that the potential 
familiarization costs of about $69.05 per hour, as presented in the 
NPRM, were unexplained and that the required time in hours was not 
accounted for. The commenter also claimed that the Departments' 
determination that the rule does not regulate small entities is 
erroneous because the added legal efforts will impact the resources and 
operations of legal providers, including small entities.
    Response: The Departments disagree with this assessment of the RFA. 
As the Government has previously recognized, ``[t]he courts have held 
that the RFA requires an agency to perform a regulatory flexibility 
analysis of small entity impacts only when a rule directly regulates 
small entities.'' \151\ This rule directly regulates individuals and 
does not regulate small entities. Changes in resources or business 
operations for legal providers may be indirect impacts, but the rule 
imposes no mandates or requirements on such entities. Furthermore, the 
Departments acknowledge that the rule could impact the support networks 
of individuals, which could include legal services and assistance 
providers that might qualify as small entities, but again, these 
effects are indirect consequences of the rule.
---------------------------------------------------------------------------

    \151\ See U.S. Small Business Administration Office of Advocacy, 
A Guide for Government Agencies: How to Comply with the Regulatory 
Flexibility Act 22 (Aug. 2017), https://cdn.advocacy.sba.gov/wp-content/uploads/2019/06/21110349/How-to-Comply-with-the-RFA.pdf 
(last visited Feb. 28, 2022).
---------------------------------------------------------------------------

    Regarding the commenters' claims about familiarization costs, we 
provided a reference noting that the wage used to calculate those costs 
represents the national average for lawyers applicable to the May 2020 
BLS National Occupational Employment and Wage Estimates. In this IFR, 
we take the additional step of providing an estimate for these costs, 
based on the maximum population, typical reading speed, and word count. 
Based on this information, familiarization costs could be around $76.3 
million the first year the rule is effective, and likely less in future 
years.
    Comments: Several commenters expressed concern that fee increases 
will negatively impact legal service providers because asylum seekers 
may no longer be able to afford to hire legal counsel and would demand 
pro bono services. Additionally, they expressed concern that regulatory 
changes that force cases to be processed on an expedited timeline will 
increase the amount of time legal service providers must spend on a 
case, which will limit the number of clients they can serve.
    Response: The Departments recognize the role of legal service 
providers in the application process for many asylum seekers. USCIS 
currently does not charge a fee to apply for asylum, nor does this rule 
require this population to pay a fee for their asylum applications to 
be adjudicated. This rule does not change an asylum applicant's ability 
to hire legal counsel or acquire pro bono services, nor does it prevent 
a legal service provider from offering its services. The purpose of the 
rule is to make the asylum process more efficient by streamlining 
proceedings that heretofore have been drawn out for months or even 
years before EOIR.

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 the UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed rule, or final rule 
for which the agency published a proposed rule that includes any 
Federal mandate that may result in $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.
    Although this rule is expected to exceed the $100 million 
expenditure in any one year when adjusted for inflation ($178 million 
in 2021 dollars based on the Consumer Price Index for All Urban 
Consumers (``CPI-U'')),\152\ the Departments do not believe this rule 
would impose any unfunded Federal mandates on State, local, or Tribal 
governments, or on the private sector. The impacts are likely to apply 
to individuals, potentially in the form of beneficial distributional 
effects and cost savings. There could be tax impacts related to the 
distributional effects. However, these effects do not constitute 
``mandates'' for purposes of the UMRA. See 2 U.S.C. 658 (defining 
mandates only as statutory or regulatory provisions that ``impose an 
enforceable duty'' on the private sector or on State, local, or Tribal 
governments). Further, the real resource costs quantified in this 
analysis apply to the Federal Government and also are not mandates.

[[Page 18214]]

Therefore, the Departments have not prepared a written UMRA statement.
---------------------------------------------------------------------------

    \152\ See BLS, Historical Consumer Price Index for All Urban 
Consumers (CPI-U): U.S. city average, all items, by month, https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202112.pdf (last visited Feb. 28, 2022).
    Calculation of inflation: (1) Calculate the average monthly CPI-
U for the reference year (1995) and the current year (2020); (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 2021-Average monthly CPI-U for 1995)/(Average monthly CPI-
U for 1995)] * 100 = [(270.970-152.383)/152.383] * 100 = (118.587/
152.383) * 100 = 0.77821673 * 100 = 77.82 percent = 78 percent 
(rounded).
    Calculation of inflation-adjusted value: $100 million in 1995 
dollars * 1.78 = $178 million in 2021 dollars.
---------------------------------------------------------------------------

E. Congressional Review Act

    The Administrator of the Office of Information and Regulatory 
Affairs has determined that this IFR is a ``major rule'' within the 
meaning of Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (also known as the Congressional Review Act), 5 
U.S.C. 804(2). Accordingly, this final rule is effective 60 days after 
publication.

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 IFR meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

H. Family Assessment

    The Departments have assessed this action in accordance with 
section 654 of the Treasury General Appropriations Act, 1999, Public 
Law 105-277, div. A, sec. 654(c), 112 Stat. 2681, 2681-529 (1998). With 
respect to the criteria specified in section 654(c), the Departments 
determined that the rule would not have any adverse impacts on family 
safety or stability. The rule would expand the circumstances in which 
asylum-seeking families who have been placed into expedited removal and 
who present neither a security risk nor a risk of absconding may be 
paroled from custody, thereby helping preserve family unity and safety, 
while also avoiding the overcrowding of detention facilities and better 
aligning detention resources, including the use of alternatives to 
detention. Additionally, this rule would result in greater efficiencies 
in the expedited removal and asylum processes, providing speedier 
resolution of meritorious cases and reducing the overall asylum system 
backlogs.

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

    The Departments analyze actions to determine whether the National 
Environmental Policy Act, Public Law 91-190, 83 Stat. 852 (1970) 
(codified at 42 U.S.C. 4321-4347), applies to them and, if so, what 
degree of analysis is required. See DHS, Implementation of the National 
Environmental Policy Act, Directive 023-01 (Oct. 31, 2014), https://www.dhs.gov/publication/directive-023-01-rev-01-and-instruction-manual-023-01-001-01-rev-01-and-catex (``Directive 023-01''); Instruction 
Manual 023-01. Directive 023-01 and Instruction Manual 023-01 establish 
the policies and procedures that DHS and its components use to comply 
with NEPA and the Council on Environmental Quality (``CEQ'') 
regulations for implementing NEPA, 40 CFR parts 1500 through 1508.
    The CEQ regulations allow Federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') that experience has shown do not have a significant 
effect on the human environment and, therefore, do not require an 
Environmental Assessment or Environmental Impact Statement. 40 CFR 
1501.4, 1507.3(e)(2)(ii). The DHS categorical exclusions are listed in 
Appendix A of Instruction Manual 023-01. 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.\153\
---------------------------------------------------------------------------

    \153\ Instruction Manual 023-01 at V.B(2)(a)-(c).
---------------------------------------------------------------------------

    As discussed in more detail throughout this rule, the Departments 
are modifying regulations applicable to noncitizens who have been 
placed into the expedited removal process, specifically for those who 
are found to have a positive credible fear. The rule could result in an 
increase in the number of noncitizens in expedited removal paroled out 
of custody, thereby promoting efficient processing and prioritization 
of DHS's limited detention bed space to detain those noncitizens who 
pose the greatest threats to national security and public safety.
    Generally, the Departments believe NEPA does not apply to a rule 
intended to change a discrete aspect of an immigration program because 
any attempt to analyze its potential impacts would be largely, if not 
completely, speculative. This rule would not alter any eligibility 
criteria, but rather would change certain procedures, specifically, 
which Federal agency adjudicates certain asylum claims. The rule also 
would not make any changes to detention facilities. Rather, the 
detention facilities are already in existence and to attempt to 
calculate how many noncitizens would be paroled--a highly discretionary 
benefit--and how many would proceed to the detention centers would be 
nearly impossible to determine. The Departments have no reason to 
believe that the IFR's amendments would change the environmental 
effect, if any, of the existing regulations.
    Therefore, the Departments have determined that, even if NEPA 
applied to this action, this rule clearly fits within categorical 
exclusion A3(d) in Instruction Manual 023-01, which provides an 
exclusion for ``promulgation of rules . . . that amend an existing 
regulation without changing its environmental effect.'' Instruction 
Manual 023-01 at A-2. Furthermore, the Departments have determined that 
this rule clearly fits within categorical exclusion A3(a) in 
Instruction Manual 023-01 because the proposed rule is of a strictly 
administrative or procedural nature. Id. at A-1. This rule is not a 
part of a larger action and presents no extraordinary circumstances 
creating the potential for significant environmental effects. 
Therefore, this rule is categorically excluded, and no further NEPA 
analysis is required.

K. Paperwork Reduction Act

USCIS Form I-765
    Under the Paperwork Reduction Act (``PRA''), Public Law 104-13, 109 
Stat. 163 (1995), all agencies are required to submit to OMB, for 
review and approval, any reporting requirements inherent in a rule. In 
compliance with the PRA, DHS published a notice of proposed rulemaking 
on August 20, 2021, in which it requested comments on the revision to 
the information

[[Page 18215]]

collection associated with this rulemaking.
    DHS and USCIS invite the general public and other Federal agencies 
to comment on the impact of the proposed collection of information for 
an additional 60 days. Comments are encouraged and must be submitted on 
or before May 31, 2022. All submissions received must include the OMB 
Control Number 1615-0040 in the body of the letter and the agency name. 
To avoid duplicate submissions, please use only one of the methods 
under the ADDRESSES and I. Public Participation sections of this rule 
to submit comments. Comments on this information collection should 
address one or more of the following four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of IT (e.g., permitting electronic submission of 
responses).
Overview of Information Collection
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Application for Employment 
Authorization.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: I-765; I-765WS; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households. USCIS 
uses Form I-765 to collect information needed to determine if a 
noncitizen is eligible for an initial EAD, a new replacement EAD, or a 
subsequent EAD upon the expiration of a previous EAD under the same 
eligibility category. Noncitizens in many immigration statuses are 
required to possess an EAD as evidence of employment authorization. 
USCIS is revising the form instructions to correspond with revisions 
related to information about the asylum application and parole.
    (5) An estimate of the total number of noncitizens and the amount 
of time estimated for an average noncitizen to respond: The estimated 
total number of noncitizens for the information collection I-765 paper 
filing is 2,178,820, and the estimated hour burden per response is 4.5 
hours; the estimated total number of noncitizens for the information 
collection I-765 online filing is 107,180, and the estimated hour 
burden per response is 4 hours; the estimated total number of 
noncitizens for the information collection I-765WS is 302,000, and the 
estimated hour burden per response is 0.5 hours; the estimated total 
number of noncitizens for the information collection biometrics 
submission is 302,535, and the estimated hour burden per response is 
1.17 hours; the estimated total number of noncitizens for the 
information collection passport photos is 2,286,000, and the estimated 
hour burden per response is 0.5 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection of information is 11,881,376 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $400,895,820.

List of Subjects

8 CFR Part 208

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

8 CFR Part 212

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

8 CFR Part 235

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

8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration, Legal 
Services, Organization and functions (Government agencies).

8 CFR Part 1208

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

8 CFR Part 1235

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

8 CFR Part 1240

    Administrative practice and procedure, Aliens.

Regulatory Amendments

DEPARTMENT OF HOMELAND SECURITY

    Accordingly, for the reasons set forth in the preamble, 8 CFR parts 
208, 212, and 235 are amended as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

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

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


0
2. Amend Sec.  208.2 by:
0
a. Revising paragraph (a);
0
b. Removing the word ``or'' at the end of paragraph (c)(1)(vii);
0
c. Removing the period at the end of paragraph (c)(1)(viii) and adding 
``; or'' in its place; and
0
d. Removing and reserving paragraph (c)(1)(ix).
    The revision reads as follows:


Sec.  208.2  Jurisdiction.

    (a) Jurisdiction of U.S. Citizenship and Immigration Services 
(USCIS). (1) Except as provided in paragraph (b) or (c) of this 
section, USCIS shall have initial jurisdiction over:
    (i) An asylum application filed by an alien physically present in 
the United States or seeking admission at a port-of-entry; and
    (ii) Interviews provided in accordance with section 
235(b)(1)(B)(ii) of the Act to further consider the application for 
asylum of an alien, other than a stowaway or alien physically present 
in or arriving in the Commonwealth of the Northern Mariana Islands, 
found to have a credible fear of persecution or torture in accordance 
with Sec.  208.30(f) and retained by USCIS, or referred to USCIS by an 
immigration judge pursuant to 8 CFR 1003.42 and 1208.30 after the 
immigration judge has vacated a negative credible fear determination. 
Interviews to further consider applications for asylum under this 
paragraph (a)(1)(ii) are governed by the procedures provided for under 
Sec.  208.9. Further consideration of an asylum application filed by a 
stowaway who has received a positive credible fear

[[Page 18216]]

determination will be under the jurisdiction of an immigration judge 
pursuant to paragraph (c) of this section.
    (2) USCIS shall also have initial jurisdiction over credible fear 
determinations under Sec.  208.30 and reasonable fear determinations 
under Sec.  208.31.
* * * * *

0
3. Amend Sec.  208.3 by revising paragraphs (a) and (c)(3) to read as 
follows:


Sec.  208.3  Form of application.

    (a)(1) Except for applicants described in paragraph (a)(2) of this 
section, an asylum applicant must file Form I-589, Application for 
Asylum and for Withholding of Removal, together with any additional 
supporting evidence in accordance with the instructions on the form. 
The applicant's spouse and children shall be listed on the application 
and may be included in the request for asylum if they are in the United 
States. One additional copy of the principal applicant's Form I-589 
must be submitted for each dependent included in the principal's 
application.
    (2) For asylum applicants, other than stowaways, who are awaiting 
further consideration of an asylum application pursuant to section 
235(b)(1)(B)(ii) of the Act following a positive credible fear 
determination, the written record of a positive credible fear finding 
issued in accordance with Sec.  208.30(f) or 8 CFR 1003.42 or 1208.30 
satisfies the application filing requirements in paragraph (a)(1) of 
this section for purposes of consideration by USCIS pursuant to the 
jurisdiction provided at Sec.  208.2(a)(1)(ii). The written record of 
the positive credible fear determination shall be considered a complete 
asylum application for purposes of Sec. Sec.  208.4(a), 208.7, and 
208.9(a); shall not be subject to the requirements of 8 CFR 103.2; and 
shall be subject to the conditions and consequences in paragraph (c) of 
this section upon signature at the asylum interview. The date that the 
positive credible fear determination is served on the alien shall be 
considered the date of filing and receipt. Application information 
collected electronically will be preserved in its native format. The 
applicant's spouse and children may be included in the request for 
asylum only if they were included in the credible fear determination 
pursuant to Sec.  208.30(c), or also presently have an application for 
asylum pending adjudication with USCIS pursuant to Sec.  
208.2(a)(1)(ii). If USCIS does not grant the applicant's asylum 
application after an interview conducted in accordance with Sec.  208.9 
and if a spouse or child who was included in the request for asylum 
does not separately file an asylum application that is adjudicated by 
USCIS, the application will also be deemed to satisfy the application 
filing requirements of 8 CFR 1208.4(b) for a spouse or child who was 
included in the request for asylum. The biometrics captured during 
expedited removal for the principal applicant and any dependents may be 
used to verify identity and for criminal and other background checks 
for purposes of an asylum application under the jurisdiction of USCIS 
pursuant to Sec.  208.2(a)(1) and any subsequent immigration benefit.
* * * * *
    (c) * * *
    (3) An asylum application under paragraph (a)(1) of this section 
must be properly filed in accordance with 8 CFR part 103 and the filing 
instructions. Receipt of a properly filed asylum application under 
paragraph (a) of this section will commence the period after which the 
applicant may file an application for employment authorization in 
accordance with Sec.  208.7 and 8 CFR 274a.12 and 274a.13.
* * * * *

0
4. Amend Sec.  208.4 by redesignating paragraph (c) as paragraph (b) 
and revising it to read as follows:


Sec.  208.4  Filing the application.

* * * * *
    (b) Amending an application after filing. (1) For applications 
being considered by USCIS pursuant to Sec.  208.2(a)(1)(i), upon the 
request of the alien, and as a matter of discretion, the asylum officer 
or immigration judge with jurisdiction may permit an asylum applicant 
to amend or supplement the application. Any delay in adjudication or in 
proceedings caused by a request to amend or supplement the application 
will be treated as a delay caused by the applicant for purposes of 
Sec.  208.7 and 8 CFR 274a.12(c)(8).
    (2) For applications being considered by USCIS pursuant to Sec.  
208.2(a)(1)(ii), the asylum applicant may subsequently amend or correct 
the biographic or credible fear information in the Form I-870, Record 
of Determination/Credible Fear Worksheet, or supplement the information 
collected during the process that concluded with a positive credible 
fear determination, provided the information is submitted directly to 
the asylum office no later than 7 calendar days prior to the scheduled 
asylum interview, or for documents submitted by mail, postmarked no 
later than 10 calendar days prior to the scheduled asylum interview. 
The asylum officer, finding good cause in an exercise of USCIS's 
discretion, may consider amendments or supplements submitted after the 
7- or 10-day (depending on the method of submission) deadline or may 
grant the applicant an extension of time during which the applicant may 
submit additional evidence, subject to the limitation on extensions 
described at Sec.  208.9(e)(2). Any amendment, correction, or 
supplement shall be included in the record.

0
5. Amend Sec.  208.9 by:
0
a. Revising paragraphs (a) through (g); and
0
b. Adding paragraph (i).
    The revisions and addition read as follows:


Sec.  208.9  Procedure for interview before an asylum officer.

    (a) Claims adjudicated. USCIS shall adjudicate the claim of each 
asylum applicant whose application is complete within the meaning of 
Sec.  208.3(a)(2) or (c)(3), when applicable, and is within the 
jurisdiction of USCIS pursuant to Sec.  208.2(a). In all cases, such 
proceedings shall be conducted in accordance with section 208 of the 
Act.
    (1) Timing of interview. For interviews on asylum applications 
within the jurisdiction of USCIS pursuant to Sec.  208.2(a)(1)(ii), 
USCIS shall not schedule the interview to take place fewer than 21 days 
after the applicant has been served with a record of the positive 
credible fear determination pursuant to Sec.  208.30(f), unless the 
applicant requests in writing that an interview be scheduled sooner. 
The asylum officer shall conduct the interview within 45 days of the 
applicant being served with a positive credible fear determination made 
by an asylum officer pursuant to Sec.  208.30(f) or made by an 
immigration judge pursuant to 8 CFR 1208.30, subject to the need to 
reschedule an interview due to exigent circumstances, such as the 
unavailability of an asylum officer to conduct the interview, the 
inability of the applicant to attend the interview due to illness, the 
inability to timely secure an appropriate interpreter pursuant to 
paragraph (g)(2) of this section, or the closure of the asylum office.
    (2) [Reserved]
    (b) Conduct and purpose of interview. The asylum officer shall 
conduct the interview in a nonadversarial manner and, except at the 
request of the applicant, separate and apart from the general public. 
The purpose of the interview shall be to elicit all relevant and useful 
information bearing on the applicant's eligibility for asylum. For 
interviews on applications within the

[[Page 18217]]

jurisdiction of USCIS pursuant to Sec.  208.2(a)(1)(ii), the asylum 
officer shall also elicit all relevant and useful information bearing 
on the applicant's eligibility for withholding of removal under the Act 
and protection under the Convention Against Torture, and, as 
appropriate, elicit sufficient information to make a determination 
whether there is a significant possibility that the applicant's spouse 
or child, if included in the request for asylum, has experienced or 
fears harm that would be an independent basis for asylum, withholding 
of removal under the Act, or protection under the Convention Against 
Torture in the event that the principal applicant is not granted 
asylum. If the asylum officer determines that there is a significant 
possibility that the applicant's spouse or child has experienced or 
fears harm that would be an independent basis for asylum, withholding 
of removal under the Act, or protection under the Convention Against 
Torture, the asylum officer shall inform the spouse or child of that 
determination. At the time of the interview, the applicant must provide 
complete information regarding the applicant's identity, including 
name, date and place of birth, and nationality, and may be required to 
register this identity. The applicant may have counsel or a 
representative present, may present witnesses, and may submit 
affidavits of witnesses and other evidence.
    (c) Authority of asylum officer. The asylum officer shall have 
authority to administer oaths, verify the identity of the applicant 
(including through the use of electronic means), verify the identity of 
any interpreter, present evidence, receive evidence, and question the 
applicant and any witnesses.
    (d) Completion of the interview. Upon completion of the interview 
before an asylum officer:
    (1) The applicant or the applicant's representative will have an 
opportunity to make a statement or comment on the evidence presented. 
The representative will also have the opportunity to ask follow-up 
questions of the applicant and any witness. The asylum officer may, in 
the asylum officer's discretion, limit the length of any statement or 
comment and may require its submission in writing.
    (2) USCIS shall inform the applicant that the applicant must appear 
in person to receive and to acknowledge receipt of the decision of the 
asylum officer and any other accompanying material at a time and place 
designated by the asylum officer, except as otherwise provided by the 
asylum officer. An applicant's failure to appear to receive and 
acknowledge receipt of the decision will be treated as delay caused by 
the applicant for purposes of Sec.  208.7.
    (e) Extensions. The asylum officer will consider evidence submitted 
by the applicant together with the applicant's asylum application.
    (1) For applications being considered under Sec.  208.2(a)(1)(i), 
the applicant must submit any documentary evidence at least 14 calendar 
days in advance of the interview date. As a matter of discretion, the 
asylum officer may consider evidence submitted within the 14-day period 
prior to the interview date or may grant the applicant a brief 
extension of time during which the applicant may submit additional 
evidence. Any such extension will be treated as a delay caused by the 
applicant for purposes of Sec.  208.7.
    (2) For applications being considered under Sec.  208.2(a)(1)(ii), 
the asylum officer may grant the applicant a brief extension of time 
during which the applicant may submit additional evidence, but the 
asylum officer shall not grant any extension to submit additional 
evidence that would prevent a decision from being issued on the 
application within 60 days of service of the positive credible fear 
determination made by an asylum officer pursuant to Sec.  208.30(f) or 
made by an immigration judge pursuant to 8 CFR 1208.30 except when the 
interview has been rescheduled due to exigent circumstances pursuant to 
paragraph (a)(1) of this section.
    (f) Record. (1) The asylum application, as defined in Sec.  
208.3(a), all supporting information provided by the applicant, any 
comments submitted by the Department of State or by DHS, and any other 
unclassified information considered by the asylum officer in the 
written decision shall comprise the record.
    (2) For interviews on asylum applications within the jurisdiction 
of USCIS pursuant to Sec.  208.2(a)(1)(ii), except for statements made 
off the record with the permission of the asylum officer, the interview 
shall be recorded. A verbatim transcript of the interview shall be 
prepared and included in the referral package to the immigration judge 
as described in Sec.  208.14(c)(1), with a copy also provided to the 
applicant.
    (g) Interpreters. (1) Except as provided in paragraph (g)(2) of 
this section, an applicant unable to proceed with the interview in 
English must provide, at no expense to USCIS, a competent interpreter 
fluent in both English and the applicant's native language or any other 
language in which the applicant is fluent. The interpreter must be at 
least 18 years of age. Neither the applicant's attorney or 
representative of record, a witness testifying on the applicant's 
behalf, nor a representative or employee of the applicant's country of 
nationality, or if stateless, country of last habitual residence, may 
serve as the applicant's interpreter. Failure without good cause to 
comply with this paragraph (g)(1) may be considered a failure to appear 
for the interview for purposes of Sec.  208.10.
    (2) Notwithstanding paragraph (h) of this section, for interviews 
on asylum applications within the jurisdiction of USCIS pursuant to 
Sec.  208.2(a)(1)(ii), if the applicant is unable to proceed 
effectively in English, the asylum officer shall arrange for the 
assistance of an interpreter in conducting the interview. The 
interpreter must be at least 18 years of age. Neither the applicant's 
attorney or representative of record, a witness testifying on the 
applicant's behalf, nor a representative or employee of the applicant's 
country of nationality, or if stateless, country of last habitual 
residence, may serve as the applicant's interpreter. If a USCIS 
interpreter is unavailable, USCIS will attribute any resulting delay to 
USCIS for the purposes of employment authorization pursuant to Sec.  
208.7.
* * * * *
    (i) Dependents of applicants being considered under Sec.  
208.2(a)(1)(ii). This paragraph (i) governs when an applicant whose 
application for asylum is being considered under Sec.  208.2(a)(1)(ii) 
is not granted asylum pursuant to Sec.  208.14(c) and has included a 
spouse or children within their request for asylum. The asylum officer 
will make a determination whether there is a significant possibility 
that the spouse or child has experienced or fears harm that would be an 
independent basis for asylum, withholding of removal under the Act, or 
protection under the Convention Against Torture, based on the 
information elicited pursuant to paragraph (b) of this section. This 
determination will be included in the record, as otherwise described in 
paragraph (f) of this section. Referral of the principal applicant's 
application to an immigration judge, along with the appropriate 
charging documents, will not be made until any pending application by 
the spouse or child as a principal applicant is adjudicated.
* * * * *

0
6. Amend Sec.  208.14 by revising paragraphs (b), (c) introductory 
text, and (c)(1) to read as follows:


Sec.  208.14  Approval, denial, referral, or dismissal of application.

* * * * *

[[Page 18218]]

    (b) Approval by an asylum officer. In any case within the 
jurisdiction of USCIS, unless otherwise prohibited in Sec.  208.13(c), 
an asylum officer, subject to review within USCIS, may grant, in the 
exercise of his or her discretion, asylum to an applicant who qualifies 
as a refugee under section 101(a)(42) of the Act, and whose identity 
has been checked pursuant to section 208(d)(5)(A)(i) of the Act.
    (c) Denial, referral, or dismissal by an asylum officer. If the 
asylum officer, subject to review within USCIS, does not grant asylum 
to an applicant after an interview conducted in accordance with Sec.  
208.9, or if, as provided in Sec.  208.10, the applicant is deemed to 
have waived the applicant's right to an interview or an adjudication by 
an asylum officer, the asylum officer shall deny, refer, or dismiss the 
application as follows:
    (1) Inadmissible or deportable aliens. Except for applicants 
described in paragraph (c)(4)(ii) of this section who have not already 
been subject to proceedings in accordance with Sec.  235.3(b) of this 
chapter, in the case of an applicant who appears to be inadmissible or 
deportable under section 212(a) or 237(a) of the Act, the asylum 
officer shall refer the application to an immigration judge, together 
with the appropriate charging document, for adjudication in removal 
proceedings (or, where charging documents may not be issued, shall 
dismiss the application).
* * * * *

0
7. Amend Sec.  208.16 by revising paragraphs (a) and (c)(4) to read as 
follows:


Sec.  208.16  Withholding of removal under section 241(b)(3)(B) of the 
Act and withholding of removal under the Convention Against Torture.

    (a) Consideration of application for withholding of removal. An 
asylum officer shall not determine whether an alien is eligible for 
withholding of the exclusion, deportation, or removal of the alien to a 
country where the alien's life or freedom would be threatened, except 
in the case of an alien who is determined to be an applicant for 
admission under section 235(b)(1) of the Act, who is found to have a 
credible fear of persecution or torture, whose case is subsequently 
retained by or referred to USCIS pursuant to the jurisdiction provided 
at Sec.  208.2(a)(1)(ii) to consider the application for asylum, and 
whose application for asylum is not granted; or in the case of the 
spouse or child of such an alien who is included in the alien's asylum 
application and who files a separate application for asylum with USCIS 
that is not granted. In such cases, the asylum officer will determine, 
based on the record before USCIS, whether the applicant is eligible for 
statutory withholding of removal under paragraph (b) of this section or 
withholding or deferral of removal pursuant to the Convention Against 
Torture under paragraph (c) of this section. Even if the asylum officer 
determines that the applicant has established eligibility for 
withholding of removal under paragraph (b) or (c) of this section, the 
asylum officer shall proceed with referring the application to the 
immigration judge for a hearing pursuant to Sec.  208.14(c)(1). In 
exclusion, deportation, or removal proceedings, an immigration judge 
may adjudicate both an asylum claim and a request for withholding of 
removal whether or not asylum is granted.
* * * * *
    (c) * * *
    (4) In considering an application for withholding of removal under 
the Convention Against Torture, the adjudicator shall first determine 
whether the alien is more likely than not to be tortured in the country 
of removal. If the adjudicator determines that the alien is more likely 
than not to be tortured in the country of removal, the alien is 
eligible for protection under the Convention Against Torture, and the 
adjudicator shall determine whether protection under the Convention 
Against Torture should be granted either in the form of withholding of 
removal or in the form of deferral of removal. The adjudicator shall 
state that an alien eligible for such protection is eligible for 
withholding of removal unless the alien is subject to mandatory denial 
of withholding of removal under paragraph (d)(2) or (3) of this 
section. If an alien eligible for such protection is subject to 
mandatory denial of withholding of removal under paragraph (d)(2) or 
(3) of this section, the adjudicator shall state that the alien is 
eligible for deferral of removal under Sec.  208.17(a). For cases under 
the jurisdiction of USCIS pursuant to Sec.  208.2(a)(1)(ii), the asylum 
officer may make such a determination based on the application and the 
record before USCIS; however, the asylum officer shall not issue an 
order granting either withholding of removal or deferral of removal 
because that is referred to the immigration judge pursuant to Sec.  
208.14(c)(1) and 8 CFR 1240.17.
* * * * *

0
8. Amend Sec.  208.30 by revising the section heading and paragraphs 
(b), (c), (d) introductory text, (e) heading, (e)(1) through (4), 
(e)(5)(i), (e)(6) introductory text, (e)(6)(ii), (f), and (g) to read 
as follows:


Sec.  208.30  Credible fear determinations involving stowaways and 
applicants for admission found inadmissible pursuant to section 
212(a)(6)(C) or 212(a)(7) of the Act.

* * * * *
    (b) Process and authority. If an alien subject to section 235(a)(2) 
or 235(b)(1) of the Act indicates an intention to apply for asylum, or 
expresses a fear of persecution or torture, or a fear of return to his 
or her country, the inspecting officer shall not proceed further with 
removal of the alien until the alien has been referred for an interview 
by a USCIS asylum officer in accordance with this section. A USCIS 
asylum officer shall then screen the alien for a credible fear of 
persecution or torture. An asylum officer, as defined in section 
235(b)(1)(E) of the Act, has the authorities described in Sec.  
208.9(c). If in exercising USCIS's discretion, it is determined that 
circumstances so warrant, the asylum officer, after supervisory 
concurrence, may refer the alien for proceedings under section 240 of 
the Act without making a credible fear determination.
    (c) Treatment of family units. (1) A spouse or child of a principal 
alien who arrived in the United States concurrently with the principal 
alien shall be included in that alien's positive credible fear 
evaluation and determination, unless the principal alien or the spouse 
or child declines such inclusion. Any alien may have his or her 
evaluation and determination made separately, if that alien expresses 
such a desire. The option for members of a family unit to have their 
evaluations and determinations made separately shall be communicated to 
all family members at the beginning of the interview process.
    (2) The asylum officer in the officer's discretion may also include 
other accompanying family members who arrived in the United States 
concurrently with a principal alien in that alien's positive fear 
evaluation and determination for purposes of family unity.
    (3) For purposes of family units in credible fear determinations, 
the category of ``child'' includes only unmarried persons under 21 
years of age.
    (d) Interview. A USCIS asylum officer will conduct the credible 
fear interview in a nonadversarial manner, separate and apart from the 
general public. The purpose of the interview shall be to elicit all 
relevant and useful information bearing on whether the alien can 
establish a credible fear of persecution or torture. The information 
provided during the interview may form the basis of an asylum 
application pursuant to

[[Page 18219]]

paragraph (f) of this section and Sec.  208.3(a)(2). The asylum officer 
shall conduct the interview as follows:
* * * * *
    (e) Determination. (1) The asylum officer shall create a written 
record of the officer's determination, including a summary of the 
material facts as stated by the applicant, any additional facts relied 
on by the officer, and the officer's determination of whether, in light 
of such facts, the alien has established a credible fear of persecution 
or torture.
    (2) An alien will be found to have 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 can establish eligibility for asylum under section 208 of the 
Act or for withholding of removal under section 241(b)(3) of the Act. 
However, prior to January 1, 2030, in the case of an alien physically 
present in or arriving in the Commonwealth of the Northern Mariana 
Islands, the officer may only find a credible fear of persecution if 
there is a significant possibility that the alien can establish 
eligibility for withholding of removal pursuant to section 241(b)(3) of 
the Act.
    (3) An alien will be found to have a credible fear of torture if 
the alien shows that there is a significant possibility that the alien 
is eligible for withholding of removal or deferral of removal under the 
Convention Against Torture, pursuant to Sec.  208.16 or Sec.  208.17.
    (4) In determining whether the alien has a credible fear of 
persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a 
credible fear of torture, the asylum officer shall consider whether the 
alien's case presents novel or unique issues that merit a positive 
credible fear finding pursuant to paragraph (f) of this section in 
order to receive further consideration of the application for asylum 
and withholding of removal.
    (5)(i) Except as provided in paragraphs (e)(5)(ii) through (iv), or 
paragraph (e)(6) or (7) of this section, if an alien is able to 
establish a credible fear of persecution or torture but appears to be 
subject to one or more of the mandatory bars to applying for, or being 
granted, asylum contained in section 208(a)(2) and (b)(2) of the Act, 
or to withholding of removal contained in section 241(b)(3)(B) of the 
Act, the Department of Homeland Security shall nonetheless issue a 
Notice to Appear or retain the alien for further consideration of the 
alien's claim pursuant to paragraph (f) of this section, if the alien 
is not a stowaway. If the alien is a stowaway, the Department shall 
place the alien in proceedings for consideration of the alien's claim 
pursuant to Sec.  208.2(c)(3).
* * * * *
    (6) Prior to any determination concerning whether an alien arriving 
in the United States at a U.S.-Canada land border port-of-entry or in 
transit through the United States during removal by Canada has a 
credible fear of persecution or torture, the asylum officer shall 
conduct a threshold screening interview to determine whether such an 
alien is ineligible to apply for asylum pursuant to section 
208(a)(2)(A) of the Act and subject to removal to Canada by operation 
of the Agreement Between the Government of the United States and the 
Government of Canada For Cooperation in the Examination of Refugee 
Status Claims from Nationals of Third Countries (``Agreement''). In 
conducting this threshold screening interview, the asylum officer shall 
apply all relevant interview procedures outlined in paragraph (d) of 
this section, provided, however, that paragraph (d)(2) of this section 
shall not apply to aliens described in this paragraph (e)(6). The 
asylum officer shall advise the alien of the Agreement's exceptions and 
question the alien as to applicability of any of these exceptions to 
the alien's case.
* * * * *
    (ii) If the alien establishes by a preponderance of the evidence 
that the alien qualifies for an exception under the terms of the 
Agreement, the asylum officer shall make a written notation of the 
basis of the exception, and then proceed immediately to a determination 
concerning whether the alien has a credible fear of persecution or 
torture under paragraph (d) of this section.
* * * * *
    (f) Procedures for a positive credible fear finding. If an alien, 
other than an alien stowaway, is found to have a credible fear of 
persecution or torture, the asylum officer will so inform the alien and 
issue the alien a record of the positive credible fear determination, 
including copies of the asylum officer's notes, the summary of the 
material facts, and other materials upon which the determination was 
based. The documents may be served in-person, by mail, or 
electronically. USCIS has complete discretion to either issue a Form I-
862, Notice to Appear, for full consideration of the asylum and 
withholding of removal claim in proceedings under section 240 of the 
Act, or retain jurisdiction over the application for asylum pursuant to 
Sec.  208.2(a)(1)(ii) for further consideration in a hearing pursuant 
to Sec.  208.9. Should any part of 8 CFR 1240.17 be enjoined or 
vacated, USCIS has the discretion to determine that it will issue a 
Form I-862, Notice to Appear, in all cases that receive a positive 
credible fear determination. If an alien stowaway is found to have a 
credible fear of persecution or torture, the asylum officer will so 
inform the alien and issue a Form I-863, Notice of Referral to 
Immigration Judge, for full consideration of the asylum claim, or the 
withholding of removal claim, in proceedings under Sec.  208.2(c). 
Parole of the alien may be considered only in accordance with section 
212(d)(5) of the Act and 8 CFR 212.5.
    (g) Procedures for a negative credible fear finding. (1) If an 
alien is found not to have a credible fear of persecution or torture, 
the asylum officer shall provide the alien with a written notice of 
decision and issue the alien a record of the credible fear 
determination, including copies of the asylum officer's notes, the 
summary of the material facts, and other materials upon which the 
determination was based. The asylum officer shall inquire whether the 
alien wishes to have an immigration judge review the negative decision, 
which shall include an opportunity for the alien to be heard and 
questioned by the immigration judge as provided for under section 
235(b)(1)(B)(iii)(III) of the Act, using Form I-869, Record of Negative 
Credible Fear Finding and Request for Review by Immigration Judge. The 
alien shall indicate whether the alien desires such review on Form I-
869. A refusal or failure by the alien to make such indication shall be 
considered a request for review.
    (i) If the alien requests such review, or refuses or fails to 
either request or decline such review, the asylum officer shall serve 
the alien with a Form I-863, Notice of Referral to Immigration Judge, 
for review of the credible fear determination in accordance with 
paragraph (g)(2) of this section. USCIS may, in its discretion, 
reconsider a negative credible fear finding that has been concurred 
upon by an immigration judge provided such reconsideration is requested 
by the alien or initiated by USCIS no more than 7 calendar days after 
the concurrence by the immigration judge, or prior to the alien's 
removal, whichever date comes first, and further provided that no 
previous request for reconsideration of that negative finding has 
already been made. The provisions of 8 CFR 103.5 shall not apply to 
credible fear determinations.
    (ii) If the alien is not a stowaway and does not request a review 
by an

[[Page 18220]]

immigration judge, DHS shall order the alien removed and issue a Form 
I-860, Notice and Order of Expedited Removal, after review by a 
supervisory asylum officer.
    (iii) If the alien is a stowaway and the alien does not request a 
review by an immigration judge, the asylum officer shall refer the 
alien to the district director for completion of removal proceedings in 
accordance with section 235(a)(2) of the Act.
    (2)(i) Immigration judges will review negative credible fear 
findings as provided in 8 CFR 1003.42 and 1208.30(g).
    (ii) The record of the negative credible fear determination, 
including copies of the Form I-863, Notice of Referral to Immigration 
Judge, the asylum officer's notes, the summary of the material facts, 
and other materials upon which the determination was based shall be 
provided to the immigration judge with the negative determination.

PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
9. The authority citation for part 212 continues to read as follows:

    Authority:  6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and 
note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 
1255, 1359; section 7209 of Pub. L. 108-458 (8 U.S.C. 1185 note); 
Title VII of Pub. L. 110-229 (8 U.S.C. 1185 note); 8 CFR part 2; 
Pub. L. 115-218.
    Section 212.1(q) also issued under section 702, Pub. L. 110-229, 
122 Stat. 754, 854.


0
10. Amend Sec.  212.5 by revising paragraph (b) introductory text to 
read as follows:


Sec.  212.5  Parole of aliens into the United States.

* * * * *
    (b) Parole from custody. The parole of aliens within the following 
groups who have been or are detained in accordance with Sec.  235.3(b) 
or (c) of this chapter would generally be justified only on a case-by-
case basis for ``urgent humanitarian reasons'' or ``significant public 
benefit,'' provided the aliens present neither a security risk nor a 
risk of absconding:
* * * * *

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
11. The authority citation for part 235 is revised 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).


0
12. Amend Sec.  235.3 by revising paragraphs (b)(2)(iii), (b)(4)(ii), 
and (c) to read as follows:


Sec.  235.3  Inadmissible aliens and expedited removal.

* * * * *
    (b) * * *
    (2) * * *
    (iii) Detention and parole of alien in expedited removal. An alien 
whose inadmissibility is being considered under this section or who has 
been ordered removed pursuant to this section shall be detained pending 
determination and removal. Parole of such alien shall only be 
considered in accordance with section 212(d)(5) of the Act and Sec.  
212.5(b) of this chapter. A grant of parole would be for the limited 
purpose of parole out of custody and cannot serve as an independent 
basis for employment authorization under Sec.  274a.12(c)(11) of this 
chapter.
* * * * *
    (4) * * *
    (ii) Detention pending credible fear interview. Pending the 
credible fear determination by an asylum officer and any review of that 
determination by an immigration judge, the alien shall be detained. 
Parole of such alien shall only be considered in accordance with 
section 212(d)(5) of the Act and Sec.  212.5(b) of this chapter. A 
grant of parole would be for the limited purpose of parole out of 
custody and cannot serve as an independent basis for employment 
authorization under Sec.  274a.12(c)(11) of this chapter. Prior to the 
interview, the alien shall be given time to contact and consult with 
any person or persons of the alien's choosing. If the alien is 
detained, such consultation shall be made available in accordance with 
the policies and procedures of the detention facility where the alien 
is detained, shall be at no expense to the Government, and shall not 
unreasonably delay the process.
* * * * *
    (c) Arriving aliens placed in proceedings under section 240 of the 
Act or aliens referred for an asylum merits interview under Sec.  
208.2(a)(1)(ii) of this chapter. (1) Except as otherwise provided in 
this chapter, any arriving alien who appears to the inspecting officer 
to be inadmissible, and who is placed in removal proceedings pursuant 
to section 240 of the Act shall be detained in accordance with section 
235(b) of the Act. Parole of such alien shall only be considered in 
accordance with Sec.  212.5(b) of this chapter. This paragraph (c) 
shall also apply to any alien who arrived before April 1, 1997, and who 
was placed in exclusion proceedings.
    (2) Except as otherwise provided in this chapter, any alien over 
whom USCIS exercises jurisdiction pursuant to Sec.  208.2(a)(1)(ii) of 
this chapter after being found to have a credible fear of persecution 
or torture shall be detained in accordance with section 235(b) of the 
Act. Parole of such alien shall only be considered in accordance with 
Sec.  212.5(b) of this chapter.
* * * * *

0
13. Amend Sec.  235.6 by:
0
a. Removing and reserving paragraphs (a)(1)(iii) and (iv);
0
b. Revising paragraph (a)(2)(i);
0
c. Removing the period at the end of paragraph (a)(2)(ii) and adding 
``; or'' in its place; and
0
d. Revising paragraph (a)(2)(iii).
    The revisions read as follows:


Sec.  235.6  Referral to immigration judge.

    (a) * * *
    (2) * * *
    (i) If an asylum officer determines that the alien does not have a 
credible fear of persecution or torture, and the alien requests a 
review of that determination by an immigration judge;
* * * * *
    (iii) If an immigration officer refers an applicant in accordance 
with the provisions of Sec.  208.2(c)(1) or (2) of this chapter to an 
immigration judge for an asylum- or withholding-only hearing.
* * * * *

DEPARTMENT OF JUSTICE

    Accordingly, for the reasons set forth in the preamble, 8 CFR parts 
1003, 1208, 1235, and 1240 are amended as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
14. The authority citation for part 1003 continues to read as follows:

    Authority:  5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; 
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.


0
15. Amend Sec.  1003.42 by revising the section heading and paragraph 
(d)(1) to read as follows:

[[Page 18221]]

Sec.  1003.42   Review of credible fear determinations.

* * * * *
    (d) * * *
    (1) The immigration judge shall make a de novo determination as to 
whether there is a significant possibility, taking into account the 
credibility of the statements made by the alien in support of the 
alien's claim, and such other facts as are known to the immigration 
judge, that the alien could establish eligibility for asylum under 
section 208 of the Act or withholding of removal under section 
241(b)(3)(B) of the Act or deferral of removal under the Convention 
Against Torture.
* * * * *

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

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

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


0
17. Amend Sec.  1208.2 by:
0
a. Revising paragraph (a);
0
b. Removing and reserving paragraph (c)(1)(ix); and
0
c. Removing ``paragraph (c)(1) or (c)(2)'' and adding ``paragraph 
(c)(1) or (2)'' in its place in paragraph (c)(3)(i).
    The revision reads as follows:


Sec.  1208.2  Jurisdiction.

    (a) U.S. Citizenship and Immigration Services (USCIS). (1) Except 
as provided in paragraph (b) or (c) of this section, USCIS shall have 
initial jurisdiction over:
    (i) An asylum application filed by an alien physically present in 
the United States or seeking admission at a port-of-entry; and
    (ii) Interviews provided in accordance with section 
235(b)(1)(B)(ii) of the Act to further consider the application for 
asylum of an alien, other than a stowaway, found to have a credible 
fear of persecution or torture in accordance with 8 CFR 208.30(f) and 
retained by USCIS, or referred to USCIS by an immigration judge 
pursuant to Sec. Sec.  1003.42 of this chapter and 1208.30, after the 
immigration judge has vacated a negative credible fear determination. 
Interviews to further consider applications for asylum under this 
paragraph (a)(1)(ii) are governed by the procedures provided for under 
8 CFR 208.9. Further consideration of an asylum application filed by a 
stowaway who has received a positive credible fear determination will 
be under the jurisdiction of an immigration judge pursuant to paragraph 
(c) of this section.
    (2) USCIS shall also have initial jurisdiction over credible fear 
determinations under 8 CFR 208.30 and reasonable fear determinations 
under 8 CFR 208.31.
* * * * *

0
18. Amend Sec.  1208.3 by:
0
a. Revising paragraph (a); and
0
b. Adding the words ``under paragraph (a)(1) of this section'' 
following ``An asylum application'' in paragraph (c)(3).
    The revision reads as follows:


Sec.  1208.3  Form of application.

    (a)(1) Except for applicants described in paragraph (a)(2) of this 
section, an asylum applicant must file Form I-589, Application for 
Asylum and for Withholding of Removal, together with any additional 
supporting evidence in accordance with the instructions on the form. 
The applicant's spouse and children shall be listed on the application 
and may be included in the request for asylum if they are in the United 
States. One additional copy of the principal applicant's Form I-589 
must be submitted for each dependent included in the principal's 
application.
    (2) In proceedings under Sec.  1240.17 of this chapter, the written 
record of a positive credible fear determination issued in accordance 
with 8 CFR 208.30(f), and Sec. Sec.  1003.42 of this chapter and 
1208.30, shall be construed as the asylum application and satisfies the 
application filing requirements and Sec.  1208.4(b). The written record 
of the positive credible fear determination shall be considered a 
complete asylum application for purposes of Sec.  1208.4(a), with the 
date of service of the positive credible fear determination on the 
alien considered the date of filing and receipt, and shall be subject 
to the conditions and consequences provided for in paragraph (c) of 
this section following the applicant's signature at the asylum merits 
interview before the USCIS asylum officer. The applicant's spouse and 
children may be included in the request for asylum only if they were 
included in the credible fear determination pursuant to 8 CFR 
208.30(c), or also presently have an application for asylum pending 
adjudication with USCIS pursuant to 8 CFR 208.2(a)(1)(ii). If USCIS 
does not grant the applicant's asylum application after an interview 
conducted in accordance with 8 CFR 208.9 and if a spouse or child who 
was included in the request for asylum does not separately file an 
asylum application that is adjudicated by USCIS, the application will 
be deemed to satisfy the application filing requirements of Sec.  
1208.4(b) for a spouse or child who was included in the request for 
asylum. The asylum applicant may subsequently seek to amend, correct, 
or supplement the record of proceedings created before the asylum 
officer or during the credible fear review process as set forth in 
Sec.  1240.17(g) of this chapter concerning the consideration of 
documentary evidence and witness testimony.
* * * * *


Sec.  1208.4  [Amended]

0
19. Amend Sec.  1208.4 by adding the words ``except that an alien in 
proceedings under Sec.  1240.17 of this chapter is not required to file 
the Form I-589'' after ``underlying proceeding'' in paragraph 
(b)(3)(i).


Sec.  1208.5  [Amended]

0
20. Amend Sec.  1208.5(b)(2) by removing the reference to ``Sec.  
1212.5 of this chapter'' and adding ``8 CFR 212.5'' in its place.

0
21. Amend Sec.  1208.14 by revising paragraphs (b), (c) introductory 
text, and (c)(1) to read as follows:


Sec.  1208.14  Approval, denial, referral, or dismissal of application.

* * * * *
    (b) Approval by an asylum officer. In any case within the 
jurisdiction of USCIS, unless otherwise prohibited in Sec.  1208.13(c), 
an asylum officer, subject to review within USCIS, may grant, in the 
exercise of his or her distraction, asylum to an applicant who 
qualifies as a refugee under section 101(a)(42) of the Act, and whose 
identity has been checked pursuant to section 208(d)(5)(A)(i) of the 
Act.
    (c) Denial, referral, or dismissal by an asylum officer. If the 
asylum officer, subject to review within USCIS, does not grant asylum 
to an applicant after an interview conducted in accordance with 8 CFR 
208.9, or if, as provided in 8 CFR 208.10, the applicant is deemed to 
have waived the applicant's right to an interview or an adjudication by 
an asylum officer, the asylum officer shall deny, refer, or dismiss the 
application, as follows:
    (1) Inadmissible or deportable aliens. Except for applicants 
described in paragraph (c)(4)(ii) of this section who have not already 
been subject to proceedings in accordance with 8 CFR 235.3, in the case 
of an applicant who appears to be inadmissible or deportable under 
section 212(a) or 237(a) of the Act, the asylum officer shall refer the 
application to an immigration judge, together with the appropriate 
charging document, for adjudication in removal proceedings (or, where 
charging

[[Page 18222]]

documents may not be issued, shall dismiss the application).
* * * * *

0
22. Amend Sec.  1208.16 by revising paragraph (a) to read as follows:


Sec.  1208.16   Withholding of removal under section 241(b)(3)(B) of 
the Act and withholding of removal under the Convention Against 
Torture.

    (a) Consideration of application for withholding of removal. 
Consideration of eligibility for statutory withholding of removal and 
protection under the Convention Against Torture by a DHS officer is as 
provided at 8 CFR 208.16. In exclusion, deportation, or removal 
proceedings, an immigration judge may adjudicate both an asylum claim 
and a request for withholding of removal whether or not asylum is 
granted.
* * * * *

0
23. Amend Sec.  1208.18 by revising paragraph (b)(1) to read as 
follows:


Sec.  1208.18  Implementation of the Convention Against Torture.

* * * * *
    (b) * * *
    (1) Aliens in proceedings on or after March 22, 1999. (i) An alien 
who is in exclusion, deportation, or removal proceedings on or after 
March 22, 1999, may apply for withholding of removal under Sec.  
1208.16(c), and, if applicable, may be considered for deferral of 
removal under Sec.  1208.17(a).
    (ii) In addition, an alien may apply for withholding of removal 
under 8 CFR 208.16(c), and, if applicable, may be considered for 
deferral of removal under 8 CFR 208.17(a), in the following situation: 
The alien is determined to be an applicant for admission under section 
235(b)(1) of the Act, the alien is found to have a credible fear of 
persecution or torture, the alien's case is subsequently retained by or 
referred to USCIS pursuant to the jurisdiction provided at 8 CFR 
208.2(a)(1)(ii) to consider the application for asylum, and that 
application for asylum is not granted.
* * * * *


Sec.  1208.19  [Removed and Reserved]

0
24. Remove and reserve Sec.  1208.19.

0
25. Revise Sec.  1208.22 to read as follows:


Sec.  1208.22  Effect on exclusion, deportation, and removal 
proceedings.

    An alien who has been granted asylum may not be deported or removed 
unless asylum status is terminated pursuant to 8 CFR 208.24 or Sec.  
1208.24. An alien in exclusion, deportation, or removal proceedings who 
is granted withholding of removal or deportation, or deferral of 
removal, may not be deported or removed to the country to which his or 
her deportation or removal is ordered withheld or deferred unless the 
withholding order is terminated pursuant to 8 CFR 208.24 or Sec.  
1208.24 or deferral is terminated pursuant to 8 CFR 208.17 or Sec.  
1208.17(d) or (e).

0
26. Amend Sec.  1208.30 by revising the section heading and paragraphs 
(a), (e), and (g)(2) to read as follows:


Sec.  1208.30  Credible fear determinations involving stowaways and 
applicants for admission who are found inadmissible pursuant to section 
212(a)(6)(C) or 212(a)(7) of the Act.

    (a) Jurisdiction. The provisions of this subpart apply to aliens 
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to 
section 235(b)(1)(B) of the Act, DHS has exclusive jurisdiction to make 
the determinations described in this subpart. Except as otherwise 
provided in this subpart, paragraphs (b) through (g) of this section 
are the exclusive procedures applicable to stowaways and applicants for 
admission who are found inadmissible pursuant to section 212(a)(6)(C) 
or 212(a)(7) of the Act and who receive fear interviews, 
determinations, and reviews under section 235(b)(1)(B) of the Act. 
Prior to January 1, 2030, an alien physically present in or arriving in 
the Commonwealth of the Northern Mariana Islands is ineligible to apply 
for asylum and may only establish eligibility for withholding of 
removal pursuant to section 241(b)(3) of the Act or withholding or 
deferral of removal under the regulations in Sec. Sec.  1208.16(c) 
through (f), 1208.17, and 1208.18 issued pursuant to the Convention 
Against Torture's implementing legislation.
* * * * *
    (e) Determination. For the standards and procedures for asylum 
officers in conducting credible fear interviews, and in making positive 
and negative credible fear determinations, see 8 CFR 208.30. The 
immigration judges will review such determinations as provided in 
paragraph (g) of this section and Sec. Sec.  1003.42 and 1240.17 of 
this chapter.
* * * * *
    (g) * * *
    (2) Review by immigration judge of a negative credible fear 
finding. (i) The asylum officer's negative decision regarding credible 
fear shall be subject to review by an immigration judge upon the 
applicant's request, or upon the applicant's refusal or failure either 
to request or to decline the review after being given such opportunity, 
in accordance with section 235(b)(1)(B)(iii)(III) of the Act. The 
immigration judge shall not have the authority to remand the case to 
the asylum officer.
    (ii) The record of the negative credible fear determination, 
including copies of the Form I-863, Notice of Referral to Immigration 
Judge, the asylum officer's notes, the summary of the material facts, 
and other materials upon which the determination was based shall be 
provided to the immigration judge with the negative determination.
    (iii) A credible fear hearing will be closed to the public unless 
the alien states for the record or submits a written statement that the 
alien is waiving that requirement; in that event the hearing shall be 
open to the public, subject to the immigration judge's discretion as 
provided in Sec.  1003.27 of this chapter.
    (iv) Upon review of the asylum officer's negative credible fear 
determination:
    (A) If the immigration judge concurs with the determination of the 
asylum officer that the alien does not have a credible fear of 
persecution or torture, the case shall be returned to DHS for removal 
of the alien. The immigration judge's decision is final and may not be 
appealed. USCIS may nevertheless reconsider a negative credible fear 
finding as provided at 8 CFR 208.30(g)(1)(i).
    (B) If the immigration judge finds that the alien, other than an 
alien stowaway, possesses a credible fear of persecution or torture, 
the immigration judge shall vacate the Notice and Order of Expedited 
Removal and refer the case back to DHS for further proceedings 
consistent with Sec.  1208.2(a)(1)(ii). Alternatively, DHS may commence 
removal proceedings under section 240 of the Act, during which time the 
alien may file an application for asylum and withholding of removal in 
accordance with Sec.  1208.4(b)(3)(i).
    (C) If the immigration judge finds that an alien stowaway possesses 
a credible fear of persecution or torture, the alien shall be allowed 
to file an application for asylum and withholding of removal before the 
immigration judge in accordance with Sec.  1208.4(b)(3)(iii). The 
immigration judge shall decide the application as provided in that 
section. Such decision may be appealed by either the stowaway or DHS to 
the Board of Immigration Appeals. If a denial of the application for 
asylum and for withholding of removal becomes final, the alien shall be 
removed from the United States in accordance with section 235(a)(2) of 
the Act. If an approval of the application for asylum or for 
withholding of removal becomes final, DHS shall terminate removal 
proceedings under section 235(a)(2) of the Act.

[[Page 18223]]

PART 1235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
27. The authority citation for part 1235 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, 1379, 1731-32; Title VII of Pub. L. 
110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458); 
Public Law 115-218.


0
28. Amend Sec.  1235.6 by:
0
a. Revising paragraph (a)(2)(i);
0
b. Removing the period at the end of paragraph (a)(2)(ii) and adding 
``; or'' in its place; and
0
c. Revising paragraph (a)(2)(iii).
    The revisions read as follows:


Sec.  1235.6  Referral to immigration judge.

    (a) * * *
    (2) * * *
    (i) If an asylum officer determines that an alien does not have a 
credible fear of persecution or torture, and the alien requests a 
review of that determination by an immigration judge;
* * * * *
    (iii) If an immigration officer refers an applicant in accordance 
with the provisions of 8 CFR 208.2(b) to an immigration judge.
* * * * *

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

0
29. The authority citation for part 1240 continues to read as follows:

    Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226, 
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202 
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 
105-277 (112 Stat. 2681).


0
30. Add Sec.  1240.17 to read as follows:


Sec.  1240.17  Removal proceedings where the respondent has a credible 
fear of persecution or torture.

    (a) Scope. This section applies in cases referred to the 
immigration court under 8 CFR 208.14(c)(1) where the respondent has 
been found to have a credible fear of persecution or torture, and U.S. 
Citizenship and Immigration Services (USCIS) subsequently adjudicated 
but did not grant the respondent's application for asylum under section 
208 of the Act; or the respondent was included in a spouse's or 
parent's application under 8 CFR 208.2(a)(1)(ii) that USCIS 
subsequently adjudicated but did not grant under section 208 of the 
Act. Except as otherwise provided in this section, removal proceedings 
for such respondents shall be governed by the same rules and procedures 
that apply to proceedings conducted under this subpart. In all cases, 
such proceedings shall be conducted in accordance with section 208 of 
the Act. Should any part of the USCIS process governing cases covered 
by 8 CFR 208.2(a)(1)(ii) be enjoined or vacated, the Executive Office 
for Immigration Review (EOIR) shall have the discretion to adjudicate 
any case referred to EOIR under 8 CFR 208.14(c)(1) using the rules and 
procedures that apply to proceedings conducted under this subpart 
without regard to this section.
    (b) Commencement of proceedings. Removal proceedings conducted 
under this section shall commence when DHS files a Notice to Appear 
(NTA) pursuant to 8 CFR part 1239 and schedules the master calendar 
hearing to take place 30 days after the date the NTA is served or, if a 
hearing cannot be held on that date, on the next available date no 
later than 35 days after the date of service. Where the NTA is served 
by mail, the date of service shall be construed as the date the NTA is 
mailed. The DHS component issuing the NTA shall also identify for the 
respondent and the immigration court that the case is subject to the 
provisions of this section. DHS shall personally serve the NTA on the 
respondent whenever practicable and by mail when personal service is 
not effectuated, and shall inform the respondent of the right to be 
represented by counsel.
    (c) Service of the record. No later than the date of the master 
calendar hearing, DHS shall serve on the respondent and on the 
immigration court where the NTA is filed the record initiating 
proceedings as defined in this paragraph (c). The record initiating 
proceedings shall include the record of proceedings for the asylum 
merits interview, as outlined in 8 CFR 208.9(f), the Form I-213, Record 
of Deportable/Inadmissible Alien, pertaining to the respondent, and the 
asylum officer's written decision issued pursuant to 8 CFR 208.19. If 
service is not effectuated as provided in this paragraph (c), the 
schedule of proceedings pursuant to paragraph (f) of this section shall 
be delayed until service is effectuated.
    (d) Failure to appear. An immigration judge shall issue an in 
absentia removal order where the respondent fails to appear at the 
master calendar hearing scheduled under paragraph (b) of this section, 
or at a later status conference or hearing under this section, if the 
requirements under section 240(b)(5) of the Act and Sec.  1003.26 of 
this chapter are met, unless the immigration judge waives the 
respondent's presence under Sec.  1003.25(a) of this chapter. If the 
asylum officer determined the respondent eligible for withholding of 
removal under the Act or withholding or deferral of removal under the 
Convention Against Torture, the immigration judge shall give effect to 
the protection for which the asylum officer determined the respondent 
eligible, unless DHS makes a prima facie showing, through evidence that 
specifically pertains to the respondent and was not in the record of 
proceedings for the USCIS asylum merits interview, that the respondent 
is not eligible for such protection(s). Where DHS makes such a showing 
at the master calendar hearing or status conference, the immigration 
judge shall allow the respondent a reasonable opportunity of at least 
10, but no more than 30, days to respond before issuing an order.
    (e) Form of application. In removal proceedings under this section, 
the written record of the positive credible fear determination issued 
in accordance with 8 CFR 208.30(f) satisfies the respondent's filing 
requirement for the application for asylum, withholding of removal 
under the Act, and withholding or deferral of removal under the 
Convention Against Torture. The record of the proceedings for the 
hearing before the asylum officer, as outlined in 8 CFR 208.9(f), and 
the asylum officer's decision, together with any amendment, correction, 
or supplementation made before the immigration judge as described in 
Sec.  1208.3(a)(2) of this chapter, shall be admitted as evidence and 
considered by the immigration judge, in addition to any further 
documentation and testimony provided by the parties under the 
procedures in this section.
    (f) Schedule of proceedings--(1) Master calendar hearing. At the 
master calendar hearing, the immigration judge shall perform the 
functions required by Sec.  1240.10(a), including advising the 
respondent of the right to be represented, at no expense to the 
Government, by counsel of the respondent's own choice. In addition, the 
immigration judge shall advise the respondent as to the nature of 
removal proceedings under this section, including: That the respondent 
has pending applications for asylum, withholding of removal under the 
Act and withholding or deferral of removal under the Convention Against 
Torture, as appropriate; that the respondent has the right to present 
evidence in support of the applications; that the respondent has the 
right to call witnesses and to testify at any merits hearing; and that 
the respondent must comply with the

[[Page 18224]]

deadlines that govern the submission of evidence. Except where the 
respondent is ordered removed in absentia, at the conclusion of the 
master calendar hearing, the immigration judge shall schedule a status 
conference 30 days after the master calendar hearing or, if a status 
conference cannot be held on that date, on the next available date no 
later than 35 days after the master calendar hearing. The immigration 
judge shall inform the respondent of the requirements for the status 
conference. The adjournment of the case until the status conference 
shall not constitute a continuance for the purposes of paragraph (h)(2) 
of this section.
    (2) Status conference. The purpose of the status conference shall 
be to take pleadings, identify and narrow the issues, determine whether 
the case can be decided on the documentary record, and, if necessary, 
ready the case for a merits hearing. At the status conference, the 
immigration judge shall advise the respondent that: The respondent has 
the right to present evidence in support of the applications; the 
respondent has the right to call witnesses and to testify at any merits 
hearing; and the respondent must comply with the deadlines that govern 
the submission of evidence. Based on the parties' representations at 
the status conference and an independent evaluation of the record, the 
immigration judge shall decide whether further proceedings are 
warranted or whether the case will be decided on the documentary record 
in accordance with paragraph (f)(4) of this section. If the immigration 
judge determines that further proceedings are warranted, the 
immigration judge shall schedule the merits hearing to take place 60 
days after the master calendar hearing or, if the merits hearing cannot 
be held on that date, on the next available date no later than 65 days 
after the master calendar hearing. The immigration judge may schedule 
additional status conferences prior to the merits hearing if the 
immigration judge determines that such conferences are warranted and 
would contribute to the efficient resolution of the case.
    (i) The respondent. At the status conference, the respondent shall 
plead to the NTA under Sec.  1240.10(c), and indicate orally or in 
writing whether the respondent intends to seek any protection(s) for 
which the asylum officer did not find the respondent eligible.
    (A)(1) If the respondent indicates that the respondent intends to 
contest removal or seek any protection(s) for which the asylum officer 
did not determine the respondent eligible, the respondent shall, either 
orally or in writing:
    (i) Indicate whether the respondent intends to testify before the 
immigration court;
    (ii) Identify any witnesses the respondent intends to call in 
support of the applications at the merits hearing;
    (iii) Provide any additional documentation in support of the 
applications;
    (iv) Describe any alleged errors or omissions in the asylum 
officer's decision or the record of proceedings before the asylum 
officer;
    (v) Articulate or confirm any additional bases for asylum and 
related protection, whether or not they were presented to or developed 
before the asylum officer; and
    (vi) State any additional requested forms of relief or protection.
    (2) If the respondent is unrepresented, the respondent shall not be 
required to provide items set forth in paragraphs (f)(2)(i)(A)(1)(iv), 
(v), and (vi) of this section.
    (B) If the respondent indicates that the respondent does not intend 
to contest removal or seek any protection(s) for which the asylum 
officer did not find the respondent eligible, the immigration judge 
shall order the respondent removed, and no further proceedings shall be 
held by the immigration judge. If the asylum officer determined the 
respondent eligible for withholding of removal under the Act or 
withholding or deferral of removal under the Convention Against 
Torture, the immigration judge shall give effect to the protection(s) 
for which the asylum officer determined the respondent eligible, unless 
DHS makes a prima facie showing, through evidence that specifically 
pertains to the respondent and was not in the record of proceedings for 
the USCIS asylum merits interview, that the respondent is not eligible 
for such protection(s).
    (ii) DHS. (A) At the status conference, DHS shall indicate orally 
or in writing whether it intends to:
    (1) Rest on the record;
    (2) Waive cross examination of the respondent;
    (3) Otherwise participate in the case; or
    (4) Waive appeal if the immigration judge decides that the 
respondent's application should be granted.
    (B) If DHS indicates that it will participate in the case, it 
shall, either orally or in writing at the status conference, or in a 
written submission pursuant to paragraph (f)(3)(i) of this section:
    (1) State its position on each of the respondent's claimed grounds 
for asylum or related protection;
    (2) State which elements of the respondent's claim for asylum or 
related protection it is contesting and which facts it is disputing, if 
any, and provide an explanation of its position;
    (3) Identify any witnesses it intends to call at any merits 
hearing;
    (4) Provide any additional non-rebuttal or non-impeachment 
evidence; and
    (5) State whether the appropriate identity, law enforcement, or 
security investigations or examinations required by section 
208(d)(5)(A)(i) of the Act and Sec.  1003.47 of this chapter have been 
completed.
    (C) Any position DHS expresses pursuant to paragraph (f)(2)(ii)(A) 
of this section may be retracted, orally or in writing, prior to the 
issuance of the immigration judge's decision, if DHS seeks 
consideration of evidence pursuant to the standard laid out in 
paragraph (g)(2) of this section. Where the immigration judge holds a 
merits hearing or hearings, any position DHS expressed pursuant to 
paragraph (f)(2)(ii)(A) may only be retracted prior to the final 
hearing; if no such hearing is held, the retraction must take place 
prior to the immigration judge's decision.
    (3) Written submissions. (i) If DHS intends to participate in the 
case, DHS shall file a written statement that provides any information 
required under paragraph (f)(2)(ii) of this section that DHS did not 
provide at the status conference, as well as any other relevant 
information or argument in response to the respondent's submissions. 
DHS's written statement, if any, shall be filed no later than 15 days 
prior to the scheduled merits hearing or, if the immigration judge 
determines that no such hearing is warranted, no later than 15 days 
following the status conference. Where DHS intends to participate in 
the case but does not timely provide its position as required under 
paragraph (f)(2)(ii) of this section, either at the status conference 
or in its written statement, to one or more of the respondent's claimed 
grounds for asylum or related protection, including which arguments 
raised by the respondent it is disputing and which facts it is 
contesting, the immigration judge shall have authority to deem those 
arguments or claims unopposed; provided, however, that DHS may respond 
at the merits hearing to any arguments or claimed bases for asylum 
first advanced by the respondent after the status conference.

[[Page 18225]]

    (ii) The respondent may submit a filing no later than 5 days prior 
to the scheduled merits hearing or, if the immigration judge determines 
that no such hearing is warranted, no later than 25 days following the 
status conference, that supplements the respondent's oral statement or 
written submission under paragraph (f)(2)(i) of this section. In the 
respondent's supplemental filing, if any, the respondent shall reply to 
any statement submitted by DHS, identify any additional witnesses, and 
provide any additional documentation in support of respondent's 
applications.
    (4) Merits hearings. (i) If DHS has indicated that it waives cross 
examination and neither the respondent nor DHS has requested to present 
testimony under the pre-hearing procedures in paragraph (f)(2) and (3) 
of this section, the immigration judge shall decide the case on the 
documentary record, without holding a merits hearing, unless the 
immigration judge, after consideration of the record, determines that a 
merits hearing is necessary to fulfill the immigration judge's duty to 
fully develop the record.
    (ii) If the respondent has timely requested to present testimony 
and DHS has indicated that it waives cross examination and does not 
intend to present testimony or produce evidence, and the immigration 
judge concludes, consistent with the immigration judge's duty to fully 
develop the record, that the respondent's application can be granted 
without further testimony, the immigration judge shall grant the 
application without holding a merits hearing.
    (iii) In all other situations, the immigration judge shall proceed 
as follows:
    (A) If the immigration judge determines that proceedings can be 
completed at the merits hearing scheduled under paragraph (f)(1) of 
this section, the immigration judge shall hold the scheduled merits 
hearing, at which the immigration judge shall swear the respondent to 
the truth and accuracy of any information or statements submitted 
pursuant to paragraphs (f)(2) and (3) of this section, hear all live 
testimony requested by the parties, consider the parties' submissions, 
and, whenever practicable, issue an oral decision in the case.
    (B) If the immigration judge determines that proceedings cannot be 
completed at the merits hearing scheduled under paragraph (f)(1) of 
this section, the immigration judge may conduct a portion of the 
scheduled hearing, hold a status conference in lieu of the scheduled 
hearing, and take any other steps the immigration judge deems necessary 
and efficient to expeditiously resolve the case. The immigration judge 
shall schedule any and all subsequent merits hearings to occur no later 
than 30 days after the initial merits hearing.
    (5) Decision. Whenever practicable, the immigration judge shall 
issue an oral decision on the date of the final merits hearing or, if 
the immigration judge determines that no merits hearing is warranted, 
no more than 30 days after the status conference. The immigration judge 
may not, however, issue a decision in a case where DHS has made a prima 
facie showing, through evidence that specifically pertains to the 
respondent and was not in the record of proceedings for the USCIS 
asylum merits interview, that the respondent is not eligible for 
withholding of removal or protection under the Convention Against 
Torture unless the respondent was first provided a reasonable 
opportunity of at least 10, but no more than 30, days to respond to the 
evidence submitted by DHS. Where issuance of an oral decision on the 
date specified under the first sentence of this paragraph (f)(5) is not 
practicable, the immigration judge shall issue an oral or written 
decision as soon as practicable, and in no case more than 45 days after 
the date specified under the first sentence of this paragraph (f)(5).
    (g) Consideration of evidence and testimony. (1) The immigration 
judge shall exclude documentary evidence or witness testimony only if 
it is not relevant or probative; if its use is fundamentally unfair; or 
if the documentary evidence is not submitted or the testimony is not 
requested by the applicable deadline, absent a timely request for a 
continuance or filing extension that is granted.
    (2) The immigration judge may consider documentary evidence or 
witness testimony submitted after the applicable deadline, taking into 
account any timely requests for continuances or filing extensions that 
are granted, but before the immigration judge has issued a decision, 
only if the evidence could not reasonably have been obtained and 
presented before the applicable deadline through the exercise of due 
diligence or if the exclusion of such evidence would violate a statute 
or the Constitution. The admission of such evidence shall not 
automatically entitle either party to a continuance or filing 
extension; such a continuance or extension is governed by paragraph (h) 
of this section.
    (h) Continuances, adjournments, and filing extensions--(1) In 
general. For cases governed by this section, an immigration judge may 
grant a continuance of a hearing date or extension of a filing deadline 
only as set forth in this paragraph (h).
    (2) Respondent-requested continuances and filings extensions. (i) 
The immigration judge may, for good cause shown, grant the respondent 
continuances and extend the respondent's filing deadlines. Each such 
continuance or extension shall not exceed 10 calendar days, unless the 
immigration judge determines that a longer period is more efficient. 
The immigration judge may not grant the respondent continuances or 
extensions for good cause that cause a merits hearing to occur more 
than 90 days after the master calendar hearing.
    (ii) The immigration judge may grant the respondent continuances or 
extensions that cause a merits hearing to occur more than 90 days after 
the master calendar hearing only if the respondent demonstrates that 
the continuance or extension is necessary to ensure a fair proceeding 
and the need for the continuance or extension exists despite the 
respondent's exercise of due diligence. The length of any such 
continuance or extension shall be limited to the time necessary to 
ensure a fair proceeding. The immigration judge may not grant the 
respondent continuances or extensions pursuant to this paragraph 
(h)(2)(ii) that cause a merits hearing to occur more than 135 days 
after the master calendar hearing.
    (iii) The immigration judge may grant the respondent continuances 
or extensions notwithstanding the requirements of paragraphs (h)(2)(i) 
and (ii) of this section if the respondent demonstrates that failure to 
grant the continuance or extension would be contrary to statute or the 
Constitution.
    (iv) In calculating the delay to a merits hearing for purposes of 
applying paragraphs (h)(2)(i) and (ii) of this section, the immigration 
judge shall exclude any continuances, hearing delays, or filing 
extensions issued pursuant to paragraphs (h)(3) and (4) of this 
section.
    (3) DHS-requested continuances and filings extensions. The 
immigration judge may, based on significant Government need, grant DHS 
continuances and extend DHS's filing deadlines. Significant Government 
need may include, but is not limited to, confirming domestic or foreign 
law-enforcement interest in the respondent, conducting forensic 
analysis of documents submitted in support of a relief application or 
other fraud-related investigations, and securing criminal history 
information, translations of foreign language documents, witness 
testimony or affidavits, or evidence suggesting that the respondent is

[[Page 18226]]

described in sections 208(a)(2)(A)(C), 208(b)(2), or 241(b)(3)(B) of 
the Act or has filed a frivolous asylum application as defined in 8 CFR 
208.20.
    (4) Continuances, adjournments, and filing extensions due to 
exigent circumstances. The immigration judge may continue a status 
conference or a hearing, or extend a filing deadline, and a status 
conference or a hearing set forth in this section may be adjourned, 
where necessary due to exigent circumstances, such as the 
unavailability of an immigration judge, the respondent, or either 
party's counsel assigned to the case due to illness; or the closure of 
the immigration court or a relevant DHS office. Any such continuance, 
extension, or adjournment shall be limited to the shortest period 
feasible and shall not be counted against the time limits set forth in 
paragraphs (h)(2)(i) and (ii) of this section. A new finding of exigent 
circumstances must be made to justify any and every subsequent 
continuance, extension, or adjournment under this paragraph (h)(4).
    (i) Decision. (1) Where the asylum officer did not grant asylum and 
did not determine that the respondent was eligible for withholding of 
removal under the Act or for withholding or deferral of removal under 
the Convention Against Torture based on the record before USCIS, the 
immigration judge shall adjudicate, de novo, the respondent's 
applications for asylum and, if necessary, for withholding of removal 
under the Act, and withholding or deferral of removal under the 
Convention Against Torture.
    (2) Except as provided in paragraph (f)(2)(i)(B) of this section, 
where the asylum officer did not grant asylum but determined the 
respondent eligible for withholding of removal under the Act, or for 
withholding or deferral of removal under the Convention Against 
Torture, the immigration judge shall adjudicate, de novo, the 
respondent's application for asylum. If the immigration judge 
subsequently denies asylum and enters a removal order, the immigration 
judge shall give effect to the protection(s) for which the asylum 
officer determined the applicant eligible, unless DHS has demonstrated, 
through evidence or testimony that specifically pertains to the 
respondent and was not in the record of proceedings for the USCIS 
asylum merits interview, that the respondent is not eligible for such 
protection(s). The immigration judge shall also grant any additional 
protection(s) for which the immigration judge finds the applicant 
eligible. DHS shall not be permitted to appeal to the Board the grant 
of any protection(s) for which the asylum officer determined the 
respondent eligible, except to argue that the immigration judge should 
have denied the application(s) based on the evidence allowed under this 
paragraph (i)(2).
    (3) Where the respondent has requested voluntary departure in the 
alternative to, or in lieu of, asylum and related protection, the 
immigration judge shall adjudicate this application where necessary.
    (j) Changes of venue. Where an immigration judge grants a motion to 
change venue under Sec.  1003.20 of this chapter, the schedule of 
proceedings pursuant to paragraph (f) of this section commences again 
with the master calendar hearing at the court to which venue has been 
changed.
    (k) Exceptions. The provisions in paragraphs (f) through (h) of 
this section shall not apply in any of the following circumstances:
    (1) The respondent was under the age of 18 on the date the NTA was 
issued, except where the respondent is in removal proceedings with one 
or more adult family members.
    (2) The respondent has produced evidence of prima facie eligibility 
for relief or protection other than asylum, withholding of removal 
under the Act, withholding or deferral of removal under the Convention 
Against Torture, or voluntary departure, and the respondent is seeking 
to apply for, or has applied for, such relief or protection.
    (3) The respondent has produced evidence that supports a prima 
facie showing that the respondent is not subject to removal as charged 
(including under any additional or substitute charges of removal 
brought by DHS pursuant to Sec.  1240.10(e)), and the immigration judge 
determines, under Sec.  1240.10(d), that the issue of whether the 
respondent is subject to removal cannot be resolved simultaneously with 
the adjudication of the respondent's applications for asylum, 
withholding of removal under the Act, or withholding or deferral of 
removal under the Convention Against Torture.
    (4) The immigration judge, pursuant to Sec.  1240.10(f), finds the 
respondent subject to removal to a country other than the country or 
countries in which the respondent claimed a fear of persecution, 
torture, or both before the asylum officer and the respondent claims a 
fear of persecution, torture, or both in that alternative country or 
countries.
    (5) The case has been reopened or remanded following the 
immigration judge's order.
    (6) The respondent has exhibited indicia of mental incompetency.
    (l) Termination of protection. Nothing in this section shall 
preclude DHS from seeking termination of asylum, withholding of removal 
under the Act, or withholding or deferral of removal under the 
Convention Against Torture pursuant to 8 CFR 208.17(d) and 208.24(f).

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
    Dated: March 17, 2022.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2022-06148 Filed 3-24-22; 8:45 am]
BILLING CODE 9111-97-P


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