18078 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 

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. 

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 tollfree call) for alternate instructions. 

FOR FURTHER INFORMATION CONTACT: 

For USCIS: Rena ́ 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 


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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 


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18080 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 

1Convention 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). 

2This 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). 

3See 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. 

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. 

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. 

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 nonrefoulement 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 


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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 


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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 


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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 respondentrequested 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 


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4On 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). 

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.’’ 

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 


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5Reconsideration requests made by noncitizens 

of negative credible fear determinations already 

affirmed by an IJ are colloquially known as requests 

for reconsideration (‘‘RFRs’’). 

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). 

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). 


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6The 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. 

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

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 


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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 crossexamination, or (2) if the noncitizen has 

timely requested to present testimony, 

DHS has indicated that it waives crossexamination 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 


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7Nothing 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). 

8The 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. 

9Noncitizens 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). 

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

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. 

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

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 informationrelated expenditures required for USCIS 

to implement this rule. These estimates 

are developed along three population 


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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). 

11The 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). 

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). 

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 


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18090 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 

12See supra note 4 (discussing recent regulations 

and their current status). 

13Section 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). 

14See 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). 

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-andwithholding-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-andwithholding-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. 

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

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 


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Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 18091 

15See supra note 4 (discussing recent regulations 

and their current status). 

16See supra note 4 (discussing recent regulations 

and their current status). 17See supra note 4 (describing the TCT Bar IFR, 

Presidential Proclamation Bar IFR, and Security 

Bars rule). 18See 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). 

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

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. 

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 


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19The 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. 

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. 

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 nonmeritorious claims while ensuring the 

United States complied with its nonrefoulement 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 pre2018, 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 


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20See supra note 19. 

21See INA 208(b)(2)(A)(ii), (B)(i), 8 U.S.C. 

1158(b)(2)(A)(ii), (B)(i). 

22See 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.’’). 

23See 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.’’). 

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-andwithholding-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 outcomedeterminative 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. 

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. 

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 


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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. 

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

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 recodifying 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 


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25See 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/eAgenda

ViewRule?pubId=202110&RIN=1125-AB15 (last 

visited Feb. 28, 2022). 

27While 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. 

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, asylumand-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

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 


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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. 

29See Global Asylum rule, 85 FR 80276; supra 

note 4 (discussing recent regulations and their 

current status). 

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. 

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 oneyear 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. 

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 followup 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 


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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. 

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 


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30The Global Asylum rule would have revised 

the process, placing such noncitizens into asylumand-withholding-only proceedings instead of 

section 240 proceedings, see 85 FR 80276, but it 

was enjoined, see supra note 4. 

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 crossexamine 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. 

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 


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31New 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. 

32As 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. 

33Under 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). 

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. 

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. 

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 crossexamine 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, 


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34Because 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. 

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

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 wellestablished 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 


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36The 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 

Continued 

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 nonimpeachment 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 crossexamination 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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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. 

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. 

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). 

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 


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38See 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). 

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. 

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 


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39The 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’’). 

40This 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). 

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). 

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 crossexamine witnesses may meet the 

standards set forth in new 8 CFR 

1240.17(h)(2)(ii) and (iii).39

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

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 


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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. 

43The 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 

Continued 

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). 

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 protectionbased 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

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


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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. 

44Although a submitted visa petition 

demonstrating prima facie eligibility for relief 

would be an optimal way to demonstrate 

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 


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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. 

45The 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. 

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

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-bycase 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 


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46See 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). 

47See, 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 . . . .’’). 

48See, 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-thePresidents-Border-Security-ImmigrationEnforcement-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). 

49Stipulated 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). 

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 caseby-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-bycase 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-bycase’’ 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. 

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 caseby-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 


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expedited removal proceedings, rather 

than processing them through lengthy 

and backlogged ordinary section 240 

removal proceedings. 

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; 


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50See U.S. Customs and Border Protection 

(‘‘CBP’’), Southwest Land Border Encounters, 

https://www.cbp.gov/newsroom/stats/southwestland-border-encounters. 

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 antitrafficking 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/factsheet-the-biden-administrationblueprint-for-a-fair-orderly-andhumane-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-secretaryalejandro-n-mayorkas-regardingsituation; 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-remarksdel-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. 

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 ‘‘feedriven’’ 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, 


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51See USCIS, Fraud Detection and National 

Security Directorate, https://www.uscis.gov/aboutus/directorates-and-program-offices/frauddetection-and-national-security-directorate. 

52See 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/factsheet-the-biden-administration-blueprint-for-a-fairorderly-and-humane-immigration-system/ (last 

visited Mar. 14, 2022). 

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 immigrationrelated 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. 

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/eoirpolicy-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 wholeof-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. 

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 


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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 crossexamination. 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 


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53To 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. 

54See, 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-ReportFinal.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-americasnorthern-triangle_e.pdf (last visited Mar. 15, 2022). 

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. 

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. 


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55See 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. 

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 


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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. 

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: 

• Taking unspecified actions to 

significantly reduce the number of 

people crossing the border; 

• devoting more resources to the 

current asylum process, including 

hiring more IJs; 

• adopting stricter substantive 

standards for demonstrating asylum 

eligibility; 

• implementing the Migrant 

Protection Protocols (‘‘MPP’’); 

• criminally prosecuting anyone who 

makes a fraudulent asylum claim; 

• denying all asylum requests; and 

• 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 


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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-andfiscal-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 foreignborn 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. 

57The 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. 

supporting negative net impacts of 

asylees on U.S. citizens or the U.S. 

economy.56

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. 

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 


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58See generally 2017 NAS Report at 323–27. 

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). 

60See 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-terminationjustification-memo.pdf. 

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. 

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-territoryreturn authority on a programmatic 

basis.60

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 


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61That 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. 

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). 

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 


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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 


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62See supra note 54. 

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. 

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 & 


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63See 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). 

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-RefugeePrograms-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 asylumrelated 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-andwithholding-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. 

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, 


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64The 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). 

65See 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). 

66On 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). 

67Executive 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). 

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. 

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

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-andwithholding-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 


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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 § 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-bycase 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 


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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 caseby-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 


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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-bycase 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 


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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). 


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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 selfesteem, 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 EADeligibility 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 


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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 


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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 nondetention 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-ofgovernment 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 wellreasoned 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 


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68See supra note 4 (discussing recent regulations 

and their current status). 

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 


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69See 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). 

70See 85 FR 80275; supra note 4 (discussing 

recent regulations and their current status). 

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. 

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. 

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 


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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. 

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 by the offices that tracked 

RFRs.

12,071. 

FY19: Total RFRs submitted to offices that tracked RFRs ..................... 2,086 (17 percent of negatives from the offices that tracked RFRs). 

FY19: Total negative determinations changed to positive post-RFR by 

offices that tracked RFRs.

231 (11 percent of RFR submissions and 2 percent of 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 by the offices that tracked 

RFRs.

7,698. 

FY20: Total RFRs submitted to offices that tracked RFRs ..................... 2,109 (27 percent of negatives from the offices that tracked RFRs). 

FY20: Total negative determinations changed to positive post-RFR by 

offices that tracked RFRs.

150 (7 percent of RFR submissions and 2 percent of 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 by the offices that tracked 

RFRs.

11,232. 

FY21: Total RFRs submitted to offices that tracked RFRs ..................... 1,213 (10.7 percent of negatives from the offices that tracked RFRs). 

FY21: Total negative determinations changed to positive post-RFR by 

offices that tracked RFRs.

188 (15 percent of RFR submissions and 1.6 percent of 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 


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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 


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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 nonmeritorious 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, 


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71Executive 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/eAgenda

ViewRule?pubId=202110&RIN=1615-AC34 (last 

visited Mar. 14, 2022). 

72See 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). 

73See supra note 4 (discussing recent regulations 

and their current status). 

74See supra note 4 (discussing recent regulations 

and their current status). 

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 IFR71 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

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 


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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. 

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 longsuggested 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 


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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-andbalances (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 


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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 dutybound 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 noncitizen’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, 


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75Asylum 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. 

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. 


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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 


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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, 


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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 


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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 


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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 justsubmitted 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 


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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 wordby-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 


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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 oneyear 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 


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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, decisionmaking, 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-trainingprograms. 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 


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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). 


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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 § 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 followup 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 crossexamine 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 


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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 nonverbal 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 


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76Asylum 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. 

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. 

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 inperson 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 contractorprovided telephonic interpreters must 

be at least 18 years of age and pass a 

security and background investigation 


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77On 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). 

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

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 inabsentia 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 


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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 inabsentia 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 


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78Streamlined 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 nondetained cases, but those cases are still conducted 

pursuant to section 240 of the INA, 8 U.S.C. 1229a. 

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 longstanding 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

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 


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79This 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). 

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’’). 

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 


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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 ‘‘optout’’ 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 


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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 


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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 


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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 wellfounded 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 welldeveloped 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’ 


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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/EthicsandProfessionalism

GuideforIJs.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 


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80The 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. 

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 posttraumatic 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/eoirannounces-access-eoir-initiative; EOIR, 

Press Release, EOIR Launches Resources 

to Increase Information and 

Representation (Oct. 1, 2020), https://

www.justice.gov/eoir/pr/eoir-launchesresources-increase-information-andrepresentation. 

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 


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81EOIR 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’’). 

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

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. 


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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 nonasylum 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 


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82Although 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). 

83For further discussion regarding the legal 

authority for the NPRM, see Section II.B of this 

preamble. 

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-criteriadetermining-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. 

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. 

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 


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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 


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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 


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84See supra note 4 (discussing recent regulations 

and their current status). 

adjudication and replacing timeconsuming 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. 

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 


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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 


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85To 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. 

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. 

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 


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86While 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. 87See IJ Ethics and Professionalism Guide. 

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

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. 

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, judicial.conduct@

usdoj.gov. 

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 


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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 


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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 ‘‘nonduplicative’’ 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 


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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. 

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

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 


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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 ‘‘nonduplicative’’ 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 


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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 newlydeveloped 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 


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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 applicantcaused 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 


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89A 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 inabsentia 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. 

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. 

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 


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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 inperson 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 


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90To 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.’’). 

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. 

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 


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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) 


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91The commenter is incorrect that the 

Department included language regarding an 

application fee for applications for asylum at 8 CFR 

1208.3(a)(2). 

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 

§ 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. 

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&

currentPub=true&agencyCode=&

showStage=active&agencyCd=1100&

csrf_token=1F5E59171165

D9C756F8D13DB0280F16BF4E61995

A08C2DA5251225495

FD83335EE930292724E7EF24BEB50141

CF0AC59747 (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 lifeor-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 


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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. 

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

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 


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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 


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18184 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 

93See 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). 

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, nongovernmental 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. 

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 


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94See 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/dhsannounces-fee-exemptions-streamlined-processingafghan-nationals-they-resettle. 

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. 

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. 


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95See 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). 

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 nondetained 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-deadlinesnon-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. 

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 


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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-andcomment 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 


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96See 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. 

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. 

Comment: A commenter asserted that 

biometric information collection for 

both EAD submissions and asylum 

applications is duplicative, timeconsuming, 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 feepaying 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 


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97See USCIS, Budget, Planning and Performance 

(May 28, 2021), https://www.uscis.gov/about-us/ 

budget-planning-and-performance. 

98Economic 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). 

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. 

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 nongovernmental 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 jobgrowth, 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

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 


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99BLS, The Employment Situation—November 

2021 (Dec. 3, 2021), https://www.bls.gov/news.

release/archives/empsit_12032021.pdf (last visited 

Feb. 27, 2022). 100BLS, 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). 101BLS, Employment Cost Index—September 

2021 (Oct. 29, 2021), https://www.bls.gov/news.

release/archives/eci_10292021.pdf (last visited Feb. 

27, 2022). 

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. 

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-andcomment 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 feebased 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 


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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 caseby-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, 


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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 noncitizens 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 


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102See 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-u202103.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. 

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 


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

104For 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. 

105Much 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/FiscalBurden-of-Illegal-Immigration-2017.pdf (last visited 

Feb. 28, 2022). 

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). 

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). 

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. 

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. 

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

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

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 


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Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 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-andcomment 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-andcomment requirements do not apply, or 

both. 

To satisfy the APA’s notice-andcomment requirements, generally, the 

final rule an agency adopts must either 

meet an exception to the notice-andcomment 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-andcomment 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 noticeand-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 


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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 upfront 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). 


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TABLE 1—SUMMARY OF THE EXPECTED IMPACTS OF THE INTERIM FINAL RULE

Entities impacted Annual population estimate Expected impacts 

Individuals who receive a positive credible fear determination.USCIS provides a range from 

75,000 to 300,000 total individuals who receive credible 

fear determinations. In recent 

years (see Table 3), approximately 83.1 percent of individuals screened have received a positive credible fear 

determination.

• Maximum potential cost-savings to applicants of Form I–589 of $364.86 per person. 

• Potential cost savings to applicants of Form I–765 of $370.28 per person. 

• 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. 

• The impacts involving compensation to individuals may be overstated because of potential 

value of non-paid work such as childcare or housework. 

• 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. 

• 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 credible fear determination.USCIS provides a range from 

75,000 to 300,000 total individuals who receive credible 

fear determinations. In recent 

years (see Table 3), approximately 16.9 percent of individuals screened have received a negative credible 

fear determination.

• Some individuals may benefit in terms of human dignity if paroled from detention while awaiting their credible fear interviews and determinations. 

• Parole may result in more individuals failing to appear for hearings. 

DHS–USCIS .............................. N/A ............................................ • At a 7 percent discount rate, the resource costs could be $451.2 million annually, based on 

up-front and continuing expenditures. 

• 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 support staff and other personnel.• After implementation is fully phased in, EOIR no longer adjudicates asylum claims raised in 

expedited removal in the first instance. EOIR would conduct streamlined section 240 removal 

proceedings for individuals not granted asylum. 

• Allows EOIR to focus efforts on other high-priority work and reduce its substantial current 

backlog. 

• 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 who receive a 

positive credible fear determination.

Unknown ................................... • To the extent that some applicants may be able to earn income 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 ................................... • 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. 

• 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. 

• 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. 


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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-monetized, benefits ............................... N/A N/A N/A 

Unquantified benefits ............................................................................. Some individuals may benefit from filing cost savings 

related to Forms I–589 and I–765. Early labor market 

entry would be beneficial in terms of labor earnings to 

the applicant, but also because it could reduce burdens 

on the applicants’ support networks. 

Regulatory Impact Analysis 

(‘‘RIA’’). 

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-year period between 2021 and 

2030 (discount rate in parentheses).

(3 percent) 

$453.8 

$180.4 $1,002.4 RIA. 

(7 percent) 

$451.2 

$179.5 $995.8 

Annualized quantified, but un-monetized, costs .................................... • Potential cost-savings applicable to Form I–589 of 

$338.86 per person. 

RIA. 

• Potential cost-savings applicable to Form I–765 of 

$377.32 per person. 

RIA. 

• Familiarization costs of about $76.3 million (in 2022). 

• 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 


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TABLE 2—OMB A–4 ACCOUNTING STATEMENT—Continued 

[$ millions, FY 2020] 

Time period: FY 2022 through FY 2031 

Category Primary estimate Minimum 

estimate 

Maximum 

estimate Source citation 

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 Tribal governments ...................................... N/A 

Effects on small businesses .................................................................. This IFR does not directly regulate small entities, but 

rather individuals. 

RFA. 

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 recentlyarrived 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. 


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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. 

108The 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. 

109USCIS, 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)’’). 

TABLE 3—USCIS FORM I–589, APPLICATION FOR ASYLUM AND FOR WITHHOLDING OF REMOVAL, AND CREDIBLE FEAR

DATA

[FY 2016 through FY 2020] 107

FY 

Form I–589 receipts Credible fear completions Total 

credible fear 

cases 108 Initial 

receipts 

Pending 

receipts 

Positive 

screen 

Negative 

screen 

All 

completions 

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. 

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] 

FY Screen 

Detained Non-detained 

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 


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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 positivescreened 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] 

FY 

EAD category (a)(5) 

Granted asylum under section 208 

EAD category (c)(8) 

applicant for 

asylum/pending asylum 

EAD category (a)(10) 

granted withholding of 

removal/243 (H) 

Initial 

receipts Approvals Initial receipts Approvals Initial 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 nondetained. 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

FY Average 

processing time 

Median 

processing time 

Initial case 

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 


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110See 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. 

111Ernie 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/whyamerica-may-already-have-its-highest-minimumwage.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. 

112For 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). 

113The 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). 

114The 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. 

TABLE 6—EOIR TIME DURATION METRICS, DAYS, AND COMPLETIONS FOR CASES WITH A CREDIBLE FEAR ORIGIN— 

Continued 

FY Average 

processing time 

Median 

processing time 

Initial case 

completions 

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. 

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 benefitsto-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 

× 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 × benefits burden of 

1.45). 

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 × $17.11) and $471.00 (12 

hours × $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 


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115Calculation: 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). 

116The 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). 

117Calculation: $10 per photo cost × 2.67 photos 

per Form I–589 = $26.70. 

118Calculation: $205.32 + $26.70 = $232.02; 

$338.16 + $26.70 = $364.86; $471.00 + $26.70 = 

$497.70. 

119On 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. 

120See 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. 

121USCIS 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. 122See Provisional Unlawful Presence Waivers of 

Inadmissibility for Certain Immediate Relatives, 78 

FR 536, 572 (Jan. 3, 2013). 123See GSA, POV Mileage Rates (Archived), 

https://www.gsa.gov/travel/plan-book/

transportation-airfare-pov-etc/privately-ownedvehicle-mileage-rates/pov-mileage-rates-archived 

(last visited Feb. 28, 2022). 

124See 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. 

125Calculations: Total time burden of 3.67 hours 

× total rate of compensation for the effective wage 

$17.11 = $62.79; total time burden of 3.67 hours × 

total rate of compensation for the average wage 

$39.25 = $144.05. 

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

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. 

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 opportunitycost savings are $81.27 (4.75 hours × 

$17.11 per hour), and $186.44 (4.75 

hours × $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. 

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

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 


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126Calculations: 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. 

127Calculations: $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. 

128There 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. 

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

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 × 0.714 × 

W × 8. In terms of each actual workday, 

the daily distributional impacts at the 

wage bounds are $136.88 ($17.11 × 8 

hours) and $314.00 ($39.25 × 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. 


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129Transfer 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). 

130See 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-americanswont-pay-any-federal-income-taxes-this-year-hereswhy-2018-04-16 (last visited Mar. 5, 2022). 131Calculation: (6.2 percent Social Security + 

1.45 percent Medicare) × 2 employee and employer 

losses = 15.3 percent total estimated tax loss to 

Government. 

As a result, we cannot extend the perperson 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. 

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 daydifference 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. 

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 


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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’’). 

133Weighted 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. 

136Estimate 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. 

137The 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 

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 nonpaid 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. 

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. 

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


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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. 

138The primary estimate of 2,035 total new 

positions is not equal to the average of the lower794 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. 

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. 

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 


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139Although 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. 

TABLE 8—ESTIMATED USCIS FY 2023 FUNDING REQUIREMENTS BY VOLUME OF CREDIBLE FEAR REFERRALS— 

Continued 

[$ in thousands] 

75k cases 150k cases 300k cases 

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 recordkeeping; 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

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. 


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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. 

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. 

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. 

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). 

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 

FY Human resources General (non-IT) 

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 


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TABLE 10—MONETIZED COSTS OF THE INTERIM FINAL RULE TO USCIS—Continued 

[In undiscounted 2020 dollars] 

Time Period: FYs 2022 through 2031 

FY Human resources General (non-IT) 

cost IT expenditure Annual total 

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] 

Population level 

Undiscounted 3-percent 7-percent 

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 


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143These 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. 

144Calculations: 75,000 cases × 15 percent = 

11,250; 300,000 cases × 15 percent = 45,000. 

145For 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 × 1.45 benefits burden = 

$103.81 (rounded). 

146Calculation: 155,000 words/250 words per 

minute = 620 minutes; 620 minutes/60 minutes per 

hour = 10.3 hours (rounded). 

147The 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-andthe-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 × $103.81 

per hour = $1,069.24; $1,069.24 × 71,363 = $76.3 

million. 

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 mediumvolume band and up to five years to 

staff the high-volume band.143

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. 

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. 

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 nongovernmental 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. 


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148Based 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). 

149On 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. 

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 caseby-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 muchreduced 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. 

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 oneto-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 


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150The definition of ‘‘small entity’’ includes 

‘‘small business[es].’’ See 5 U.S.C. 601(3). 

151See 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/wpcontent/uploads/2019/06/21110349/How-toComply-with-the-RFA.pdf (last visited Feb. 28, 

2022). 

152See 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. 

unquantifiable benefits and costs, the 

Departments believe that the aggregate 

benefits of the rule would amply justify 

the aggregate costs. 

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-andcomment 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. 

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. 

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. 


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18214 Federal Register / Vol. 87, No. 60 / Tuesday, March 29, 2022 / Rules and Regulations 

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

Therefore, the Departments have not 

prepared a written UMRA statement. 

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

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 


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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 

■ 1. The authority citation for part 208 

continues to read as follows: 

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

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

229; 8 CFR part 2; Pub. L. 115–218. 

■ 2. Amend § 208.2 by: 

■ a. Revising paragraph (a); 

■ b. Removing the word ‘‘or’’ at the end 

of paragraph (c)(1)(vii); 

■ c. Removing the period at the end of 

paragraph (c)(1)(viii) and adding ‘‘; or’’ 

in its place; and 

■ d. Removing and reserving paragraph 

(c)(1)(ix). 

The revision reads as follows: 

§ 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-ofentry; 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 § 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 § 208.9. 

Further consideration of an asylum 

application filed by a stowaway who 

has received a positive credible fear 


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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 § 208.30 and 

reasonable fear determinations under 

§ 208.31. 

* * * * * 

■ 3. Amend § 208.3 by revising 

paragraphs (a) and (c)(3) to read as 

follows: 

§ 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 § 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 

§ 208.2(a)(1)(ii). The written record of 

the positive credible fear determination 

shall be considered a complete asylum 

application for purposes of §§ 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 

§ 208.30(c), or also presently have an 

application for asylum pending 

adjudication with USCIS pursuant to 

§ 208.2(a)(1)(ii). If USCIS does not grant 

the applicant’s asylum application after 

an interview conducted in accordance 

with § 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 

§ 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 

§ 208.7 and 8 CFR 274a.12 and 274a.13. 

* * * * * 

■ 4. Amend § 208.4 by redesignating 

paragraph (c) as paragraph (b) and 

revising it to read as follows: 

§ 208.4 Filing the application. 

* * * * * 

(b) Amending an application after 

filing. (1) For applications being 

considered by USCIS pursuant to 

§ 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 § 208.7 and 8 

CFR 274a.12(c)(8). 

(2) For applications being considered 

by USCIS pursuant to § 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 

§ 208.9(e)(2). Any amendment, 

correction, or supplement shall be 

included in the record. 

■ 5. Amend § 208.9 by: 

■ a. Revising paragraphs (a) through (g); 

and 

■ b. Adding paragraph (i). 

The revisions and addition read as 

follows: 

§ 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 § 208.3(a)(2) or 

(c)(3), when applicable, and is within 

the jurisdiction of USCIS pursuant to 

§ 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 § 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 § 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 § 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 


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jurisdiction of USCIS pursuant to 

§ 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 § 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 § 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 § 208.7. 

(2) For applications being considered 

under § 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 

§ 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 § 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 § 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 

§ 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 

§ 208.10. 

(2) Notwithstanding paragraph (h) of 

this section, for interviews on asylum 

applications within the jurisdiction of 

USCIS pursuant to § 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 § 208.7. 

* * * * * 

(i) Dependents of applicants being 

considered under § 208.2(a)(1)(ii). This 

paragraph (i) governs when an applicant 

whose application for asylum is being 

considered under § 208.2(a)(1)(ii) is not 

granted asylum pursuant to § 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. 

* * * * * 

■ 6. Amend § 208.14 by revising 

paragraphs (b), (c) introductory text, and 

(c)(1) to read as follows: 

§ 208.14 Approval, denial, referral, or 

dismissal of application. 

* * * * * 


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(b) Approval by an asylum officer. In 

any case within the jurisdiction of 

USCIS, unless otherwise prohibited in 

§ 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 

§ 208.9, or if, as provided in § 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 

§ 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). 

* * * * * 

■ 7. Amend § 208.16 by revising 

paragraphs (a) and (c)(4) to read as 

follows: 

§ 208.16 Withholding of removal under 

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

withholding of removal under the 

Convention Against Torture. 

(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 § 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 § 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 

§ 208.17(a). For cases under the 

jurisdiction of USCIS pursuant to 

§ 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 

§ 208.14(c)(1) and 8 CFR 1240.17. 

* * * * * 

■ 8. Amend § 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: 

§ 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 § 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 


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paragraph (f) of this section and 

§ 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 

§ 208.16 or § 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 § 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 

§ 208.2(a)(1)(ii) for further consideration 

in a hearing pursuant to § 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 § 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 


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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 

■ 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. 

■ 10. Amend § 212.5 by revising 

paragraph (b) introductory text to read 

as follows: 

§ 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 § 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 

■ 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). 

■ 12. Amend § 235.3 by revising 

paragraphs (b)(2)(iii), (b)(4)(ii), and (c) to 

read as follows: 

§ 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 § 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 

§ 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 

§ 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 

§ 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 § 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 § 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 

§ 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 

§ 212.5(b) of this chapter. 

* * * * * 

■ 13. Amend § 235.6 by: 

■ a. Removing and reserving paragraphs 

(a)(1)(iii) and (iv); 

■ b. Revising paragraph (a)(2)(i); 

■ c. Removing the period at the end of 

paragraph (a)(2)(ii) and adding ‘‘; or’’ in 

its place; and 

■ d. Revising paragraph (a)(2)(iii). 

The revisions read as follows: 

§ 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 § 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 

■ 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. 

■ 15. Amend § 1003.42 by revising the 

section heading and paragraph (d)(1) to 

read as follows: 


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§ 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 

■ 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. 

■ 17. Amend § 1208.2 by: 

■ a. Revising paragraph (a); 

■ b. Removing and reserving paragraph 

(c)(1)(ix); and 

■ 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: 

§ 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-ofentry; 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 

§§ 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. 

* * * * * 

■ 18. Amend § 1208.3 by: 

■ a. Revising paragraph (a); and 

■ b. Adding the words ‘‘under 

paragraph (a)(1) of this section’’ 

following ‘‘An asylum application’’ in 

paragraph (c)(3). 

The revision reads as follows: 

§ 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 § 1240.17 of 

this chapter, the written record of a 

positive credible fear determination 

issued in accordance with 8 CFR 

208.30(f), and §§ 1003.42 of this chapter 

and 1208.30, shall be construed as the 

asylum application and satisfies the 

application filing requirements and 

§ 1208.4(b). The written record of the 

positive credible fear determination 

shall be considered a complete asylum 

application for purposes of § 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 

§ 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 

§ 1240.17(g) of this chapter concerning 

the consideration of documentary 

evidence and witness testimony. 

* * * * * 

§ 1208.4 [Amended] 

■ 19. Amend § 1208.4 by adding the 

words ‘‘except that an alien in 

proceedings under § 1240.17 of this 

chapter is not required to file the Form 

I–589’’ after ‘‘underlying proceeding’’ in 

paragraph (b)(3)(i). 

§ 1208.5 [Amended] 

■ 20. Amend § 1208.5(b)(2) by removing 

the reference to ‘‘§ 1212.5 of this 

chapter’’ and adding ‘‘8 CFR 212.5’’ in 

its place. 

■ 21. Amend § 1208.14 by revising 

paragraphs (b), (c) introductory text, and 

(c)(1) to read as follows: 

§ 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 

§ 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 


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documents may not be issued, shall 

dismiss the application). 

* * * * * 

■ 22. Amend § 1208.16 by revising 

paragraph (a) to read as follows: 

§ 1208.16 Withholding of removal under 

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

withholding of removal under the 

Convention Against Torture. 

(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. 

* * * * * 

■ 23. Amend § 1208.18 by revising 

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

§ 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 § 1208.16(c), and, if applicable, 

may be considered for deferral of 

removal under § 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. 

* * * * * 

§ 1208.19 [Removed and Reserved] 

■ 24. Remove and reserve § 1208.19. 

■ 25. Revise § 1208.22 to read as 

follows: 

§ 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 § 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 § 1208.24 

or deferral is terminated pursuant to 8 

CFR 208.17 or § 1208.17(d) or (e). 

■ 26. Amend § 1208.30 by revising the 

section heading and paragraphs (a), (e), 

and (g)(2) to read as follows: 

§ 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 §§ 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 

§§ 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 § 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 § 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 § 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 § 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. 


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PART 1235—INSPECTION OF 

PERSONS APPLYING FOR ADMISSION 

■ 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. 

■ 28. Amend § 1235.6 by: 

■ a. Revising paragraph (a)(2)(i); 

■ b. Removing the period at the end of 

paragraph (a)(2)(ii) and adding ‘‘; or’’ in 

its place; and 

■ c. Revising paragraph (a)(2)(iii). 

The revisions read as follows: 

§ 1235.6 Referral to immigration judge. 

(a) * * * 

(2) * * * 

(i) If an asylum officer determines that 

an alien does not have a credible fear of 

persecution 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 

■ 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). 

■ 30. Add § 1240.17 to read as follows: 

§ 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 § 1003.26 of this chapter are 

met, unless the immigration judge 

waives the respondent’s presence under 

§ 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 § 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 

§ 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 


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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 § 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 nonrebuttal 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 

§ 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. 


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(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 lawenforcement 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 


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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 § 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 § 1240.10(e)), and the 

immigration judge determines, under 

§ 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 § 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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