103370 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 208 

[CIS No. 2776–24; DHS Docket No. USCIS– 

2024–0005] 

RIN 1615–AC91 

Application of Certain Mandatory Bars 

in Fear Screenings 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Final rule. 

SUMMARY: The Department of Homeland 

Security (DHS or Department) is 

amending its regulations to allow 

asylum officers (AOs) to consider the 

potential applicability of certain bars to 

asylum and statutory withholding of 

removal during credible fear and 

reasonable fear screenings, including 

credible fear screenings where the 

Circumvention of Lawful Pathways or 

Securing the Border rules apply. The 

rule is intended to enhance operational 

flexibility and help DHS more swiftly 

remove certain noncitizens who are 

barred from asylum and statutory 

withholding of removal. 

DATES: This final rule is effective 

January 17, 2025. 

FOR FURTHER INFORMATION CONTACT: 

Daniel Delgado, Acting Deputy 

Assistant Secretary for Immigration 

Policy, Office of Strategy, Policy, and 

Plans, U.S. Department of Homeland 

Security; telephone (202) 447–3459 (not 

a toll-free call). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Legal Authority 

III. Provisions of the Final Rule 

IV. Response to Public Comments on the 

Proposed Rule 

A. Summary of Comments on the Proposed 

Rule 

B. General Feedback on the Proposed Rule 

1. General Support for the Proposed Rule 

C. Legal Authority and Background 

1. DHS Legal Authority 

2. DHS’s Justification, Background, and 

Statements on the Need for the Rule 

3. Other/General Comments on Legal 

Authority and Background 

D. Proposed Application of Mandatory 

Bars 

1. Noncitizens in Credible Fear Screenings 

(8 CFR 208.30) 

2. Noncitizens Subject to Circumvention of 

Lawful Pathways Presumption of 

Ineligibility, Statutory Withholding 

Screen (8 CFR 208.33) 

3. Inclusion of Specific Bars (e.g., 

Particularly Serious Crimes Bar, Security 

Bar) 

4. Exclusion of Specific Bars (e.g., ‘‘Firm 

Resettlement Bar,’’ INA Secs. 208(a)(2), 

(b)(2)(A)(vi), 8 U.S.C. 1158(a)(2), 

(b)(2)(A)(vi)) 

5. Exclusion of CAT Screenings 

(Withholding of Removal) (8 CFR 

208.30(e)(3), 208.33(b)(2)(i)) 

6. Other/General Comments on the 

Application of Bars 

7. Screening Procedures, AO 

Determinations, Immigration Judge 

Review of Negative Fear Determinations 

(e.g., Discretionary vs. Requirement, 

Guidance, Cases Where Bars Are 

Outcome-Determinative) 

8. Burden of Proof 

9. Other General/Mixed Feedback and 

Suggested Alternatives 

E. Other Issues Relating to the Rule 

1. Coordination With DOJ in the 

Rulemaking 

2. Security Bars and Processing 

Rulemaking 

3. Out of Scope Comments 

F. Statutory and Regulatory Requirements 

1. Administrative Procedure Act 

2. Regulatory Impact Analysis Impacts and 

Benefits (E.O. 12866 and E.O. 13563) 

3. Paperwork Reduction Act (e.g., 

Comments on Forms and Burden 

Estimates) 

4. Other/General Comments on Statutory 

and Regulatory Requirements (e.g., 

Unfunded Mandates Reform Act, 

Federalism, Civil Justice Reform, Family 

Assessment, Indian Tribal Governments, 

Protection of Children from 

Environmental Health and Safety Risks, 

National Environmental Policy Act) 

5. Out of Scope 

V. Statutory and Regulatory Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

B. Regulatory Flexibility Act (RFA) 

C. Unfunded Mandates Reform Act of 1995 

(UMRA) 

D. Small Business Regulatory Enforcement 

Fairness Act of 1996 (Congressional 

Review Act) 

E. Executive Order 13132 (Federalism) 

F. Executive Order 12988 (Civil Justice 

Reform) 

G. Family Assessment 

H. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

I. Executive Order 13045 (Protection of 

Children From Environmental Health 

Risks and Safety Risks) 

J. National Environmental Policy Act 

(NEPA) 

K. Paperwork Reduction Act (PRA) 

I. Background 

A. Mandatory Bars NPRM 

On May 13, 2024, DHS issued a notice 

of proposed rulemaking (NPRM) that 

proposed to allow AOs to consider the 

potential applicability of certain bars to 

asylum and statutory withholding of 

removal during certain credible and 

reasonable fear screenings. Application 

of Certain Mandatory Bars in Fear 

Screenings, 89 FR 41347 (May 13, 2024). 

Following careful consideration of 

public comments received, the 

Department has not made substantive 

modifications to the regulatory text 

proposed in the NPRM, 89 FR 41347 

(May 13, 2024), but has made clarifying 

amendments. The rationale and the 

reasoning provided in the proposed rule 

preamble remain valid, except where a 

new or supplemental rationale is 

reflected in this Final Rule. 

B. Securing the Border 

After DHS issued the NPRM, on June 

3, 2024, the President signed 

Presidential Proclamation 10773, 

Securing the Border, under sections 

212(f) and 215(a) of the INA, 8 U.S.C. 

1182(f) and 1185(a), finding that 

because the border security and 

immigration systems of the United 

States were unduly strained, the entry 

into the United States of certain 

categories of noncitizens was 

detrimental to the interests of the 

United States, and suspending and 

limiting the entry of such noncitizens. 

89 FR 48487, 48487–91 (June 7, 2024) 

(‘‘June 3 Proclamation’’). The June 3 

Proclamation directed DHS and DOJ to 

promptly consider issuing any 

regulations ‘‘as may be necessary to 

address the circumstances at the 

southern border, including any 

additional limitations and conditions on 

asylum eligibility that they determine 

are warranted, subject to any exceptions 

that they determine are warranted.’’ 89 

FR at 48491 (sec. 3(d)). 

DHS and DOJ subsequently published 

an Interim Final Rule (IFR) on June 7, 

2024, during the comment period of this 

rule, to implement the policies and 

objectives of the June 3 Proclamation. 89 

FR 48710 (June 7, 2024) (Securing the 

Border IFR). The Securing the Border 

IFR effectuated three key changes to the 

process for those noncitizens who are 

encountered at the southern border 

during the emergency border 

circumstances giving rise to the 

suspension and limitation on entry 

under the June 3 Proclamation: (1) 

adding a limitation on asylum 

eligibility; (2) rather than asking specific 

questions of every noncitizen 

encountered and processed for 

expedited removal, providing general 

notice regarding the process for seeking 

asylum and related protection and 

referring a noncitizen for a credible fear 

interview only if the noncitizen 

manifests a fear of return, expresses an 

intention to apply for asylum or 

protection, or expresses a fear of 

persecution or torture or a fear of return 

to his or her country or the country of 

removal; and (3) for those found not to 

have a credible fear of persecution for 


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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103371 

1This rule refers generally to the ‘‘Securing the 

Border rule’’ when it is not necessary to specify 

between the Securing the Border IFR or Securing 

the Border final rule. 

2For purposes of this preamble, DHS uses the 

term ‘‘noncitizen’’ to be synonymous with the term 

‘‘alien’’ as it is used in the INA. See INA sec. 

101(a)(3), 8 U.S.C. 1101(a)(3); Barton v. Barr, 590 

U.S. 222, 226 n.2 (2020). 

asylum purposes because of the IFR’s 

limitation on asylum eligibility, 

screening for statutory withholding of 

removal and CAT protection under a 

‘‘reasonable probability’’ standard. Id. at 

48718. In the credible fear screening 

context, if there is not a significant 

possibility that the noncitizen could 

demonstrate that the limitation on 

asylum eligibility does not apply to 

them or could demonstrate by a 

preponderance of the evidence that they 

are eligible for an exception to the 

limitation (i.e., there is not a significant 

possibility that the noncitizen could 

establish eligibility for asylum), the AO 

will enter a negative credible fear 

determination with respect to the 

noncitizen’s asylum claim. 8 CFR 

208.35(b)(1). The AO then screens the 

noncitizen for statutory withholding of 

removal and protection under CAT by 

determining whether there is a 

reasonable probability the noncitizen 

would face persecution or torture in the 

country (or countries) of removal. 8 CFR 

208.35(b)(2). The reasonable probability 

standard is defined as ‘‘substantially 

more than a ‘reasonable possibility’ but 

somewhat less than more likely than 

not.’’ 8 CFR 208.35(b)(2)(i). 

On September 27, 2024, the President 

issued a proclamation amending the 

June 3 Proclamation. 89 FR 80351 (Oct. 

2, 2024) (September 27 Proclamation). 

The September 27 Proclamation 

amended the calculations for when the 

suspension and limitation on entry 

established in the June 3 Proclamation 

would be discontinued, continued, or 

reactivated. Id. On October 7, 2024, the 

Departments published a final rule 

responding to public comments on the 

IFR and implementing changes that 

parallel those made in the September 27 

Proclamation. Securing the Border Final 

Rule, 89 FR 81156 (Oct. 7, 2024) 

(Securing the Border final rule).1

II. Legal Authority 

The Secretary of Homeland Security’s 

(Secretary) authority for this rule is 

found in various provisions of the 

Immigration and Nationality Act (INA), 

8 U.S.C. 1101 et seq., as amended by the 

Homeland Security Act of 2002 (HSA), 

Public Law 107–296, 116 Stat. 2135, as 

amended. The INA charges the 

Secretary ‘‘with the administration and 

enforcement of [the INA] and all other 

laws relating to the immigration and 

naturalization of aliens,’’ except insofar 

as those laws assign functions to the 

President or other agencies. INA sec. 

103(a)(1), 8 U.S.C. 1103(a)(1). The INA 

also authorizes the Secretary to establish 

regulations and take other actions 

‘‘necessary for carrying out’’ the 

Secretary’s authority to administer and 

enforce the immigration laws. INA secs. 

103(a)(1) and (3), 8 U.S.C. 1103(a)(1) 

and (3); see also 6 U.S.C. 202 

(authorities of the Secretary), 271(a)(3) 

(conferring authority on U.S. 

Citizenship and Immigration Services 

(USCIS) Director to establish ‘‘policies 

for performing [immigration 

adjudication] functions’’). 

Under the INA, DHS has authority to 

adjudicate asylum applications and to 

conduct credible fear interviews, make 

credible fear determinations in the 

context of expedited removal, and to 

establish procedures for further 

consideration of asylum applications 

after an individual is found to have a 

credible fear. INA sec. 103(a)(1), (a)(3), 

8 U.S.C. 1103(a)(1), (a)(3); INA sec. 

208(b)(1)(A), (d)(1), (d)(5)(B), 8 U.S.C. 

1158(b)(1)(A), (d)(1), (d)(5)(B); INA sec. 

235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see 

also 6 U.S.C. 271(b) (providing for the 

transfer of the Commissioner of 

Immigration and Naturalization’s 

functions relating to adjudication of 

asylum and refugee applications to the 

Director of the Bureau of Citizenship 

and Immigration Services, now USCIS); 

6 U.S.C. 557 (providing that references 

to any officer from whom functions are 

transferred under the HSA are to be 

understood as referring to the Secretary 

of Homeland Security). Within DHS, the 

Secretary has delegated some of those 

authorities to the Director of USCIS. 

USCIS AOs conduct credible fear 

interviews, make credible fear 

determinations, and determine whether 

a noncitizen’s 2 asylum application 

should be granted, all of which are 

subject to review by a supervisory AO. 

See DHS, Delegation to the Bureau of 

Citizenship and Immigration Services, 

No. 0150.1 (June 5, 2003); 8 CFR 

208.2(a), 208.9, 208.14(b), 208.30(b), 

(e)(6)(i), (e)(8). 

The INA also authorizes the Secretary 

and Attorney General to publish 

regulatory amendments governing their 

respective roles regarding inspection 

and admission, detention and removal, 

withholding of removal, and deferral of 

removal. See INA secs. 235, 236, 241, 8 

U.S.C. 1225, 1226, 1231. 

The United States is a party to the 

1967 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 generally 

prohibits parties to the Convention from 

expelling or returning (‘‘refouler’’) ‘‘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.’’ Id. 

Congress has implemented U.S. nonrefoulement obligations under the 1967 

Protocol through the INA, as amended 

by the Refugee Act of 1980, Public Law 

96–212, 94 Stat. 102, extending the form 

of protection from removal now known 

as statutory withholding of removal. See 

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

(formerly 8 U.S.C. 1253(h) (1952)); see 

also Sale v. Haitian Ctrs. Council, Inc., 

509 U.S. 155, 174–77 (1993) (describing 

the history of the statutory withholding 

provision and the Refugee Act 

amendments). The Supreme Court has 

long recognized that the United States 

implements its non-refoulement 

obligations under Article 33 of the 

Refugee Convention (via the Refugee 

Protocol) through the statutory 

withholding of removal provision in 

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

1231(b)(3), which provides that a 

noncitizen may not be removed to a 

country where their life or freedom 

would be threatened because of one of 

the protected grounds listed in Article 

33 of the Refugee Convention. See INA 

sec. 241(b)(3), 8 U.S.C. 1231(b)(3), 8 CFR 

208.16, 1208.16; see also INS v. 

Cardoza-Fonseca, 480 U.S. 421, 429–30 

(1987) (discussing the statutory 

precursor to section 241(b)(3) of the 

INA—former section 243(h), 8 U.S.C. 

1253(h) (1952)); INS v. Stevic, 467 U.S. 

407, 414–22 (1984) (same). The INA also 

authorizes the Secretary and the 

Attorney General to implement statutory 

withholding of removal under section 

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

See INA sec. 103(a)(1) and (3), (g)(1) and 

(2), 8 U.S.C. 1103(a)(1) and (3), (g)(1) 

and (2). 

DHS and DOJ also have authority to 

implement U.S. obligations under 

Article 3 of the Convention Against 

Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment, 

December 10, 1984, S. Treaty Doc. No. 

100–20, 1465 U.N.T.S. 85 (entered into 

force for United States Nov. 20, 1994) 

(CAT). The Foreign Affairs Reform and 

Restructuring Act of 1998 (FARRA) 

provides the Secretary with the 

authority to ‘‘prescribe regulations to 

implement the obligations of the United 


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103372 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

3As described in the NPRM, this rule makes a 

non-substantive change to 8 CFR 208.31(g) and 

replaces the last sentence of 8 CFR 208.31(g) and 

paragraphs (g)(1)–(2). 89 FR at 41355 n.39. Because 

those provisions describe the procedures for 

immigration judge review of an AO’s reasonable 

fear finding and are duplicative with the 

corresponding provision governing immigration 

court procedures at 8 CFR 1208.31(g), they are not 

needed in the DHS regulations in chapter I of title 

8 of the CFR. Accordingly, this rule replaces those 

provisions in 8 CFR 208.31(g) with a short 

statement that informs the reader that the 

immigration judge review procedures are set forth 

at 8 CFR 1208.31(g). 

States under Article 3 of the [CAT], 

subject to any reservations, 

understandings, declarations, and 

provisos contained in the United States 

Senate resolution of ratification of the 

Convention.’’ Public Law 105–277, div. 

G, sec. 2242(b), 112 Stat. 2681, 2681– 

822 (8 U.S.C. 1231 note). DHS and DOJ 

have implemented U.S. obligations 

under Article 3 of the CAT in their 

respective immigration regulations, 

consistent with FARRA. See, e.g., 8 CFR 

208.16(c) through 208.18, 1208.16(c) 

through 1208.18; 64 FR 8478 (Feb. 19, 

1999) (‘‘Regulations Concerning the 

Convention Against Torture’’), as 

corrected by 64 FR 13881 (Mar. 23, 

1999). 

Overall, this rule is authorized 

because Congress has conferred upon 

the Secretary express rulemaking power 

to create certain procedures for 

screening for and adjudicating asylum 

claims. INA sec. 103(a)(1), (a)(3), 8 

U.S.C. 1103(a)(1), (a)(3); INA sec. 

208(b)(1)(A), (b)(2)(C), (d)(5)(B), 8 U.S.C. 

1158(b)(1)(A), (b)(2)(C), (d)(5)(B); INA 

sec. 235(b)(1), 8 U.S.C. 1225(b)(1). 

III. Provisions of the Final Rule and 

Revisions From the NPRM 

The rule amends provisions at 8 CFR 

208.30(e), 208.31, and 208.33(b) that 

effectuate the following changes to the 

credible fear and reasonable fear 

screening procedures: 

• The rule provides AOs the 

discretion to consider mandatory bars to 

asylum under INA sec. 208(b)(2)(A)(i)– 

(v), 8 U.S.C. 1158(b)(2)(A)(i)–(v) or to 

statutory withholding of removal under 

INA sec. 241(b)(3)(B), 8 U.S.C. 

1231(b)(3)(B) (mandatory bars) in 

credible fear screenings if the AO finds 

the noncitizen is able to establish a 

credible fear of persecution but not a 

credible fear of torture. 

• The rule provides that when the 

mandatory bars are considered, the AO 

will find a noncitizen to have a credible 

fear of persecution if there is a 

significant possibility that the 

noncitizen can establish eligibility for 

asylum or withholding of removal, 

including the AO’s determination that 

no bar applies or will be applied by the 

AO in that case. 

• The rule allows AOs to enter a 

negative credible fear finding with 

regard to the noncitizen’s eligibility for 

asylum or withholding of removal under 

INA sec. 208, 8 U.S.C. 1158, INA sec. 

241(b)(3), 8 U.S.C. 1231(b)(3), or 8 CFR 

208.16(c) if the AO determines there is 

not a significant possibility the 

noncitizen would be able to establish by 

a preponderance of the evidence that 

the mandatory bars do not apply. 

• The rule provides AOs the 

discretion to consider mandatory bars 

when conducting credible fear 

screenings under the additional 

procedures in 8 CFR 208.33(b)(2). 

• The rule provides that DHS will 

issue a Form I–862, Notice to Appear, if 

an AO conducting a credible fear 

screening under the additional 

procedures in 8 CFR 208.33(b)(2) 

determines that the noncitizen 

established a reasonable possibility of 

persecution with respect to the 

identified country or countries of 

removal and, to the extent bars were 

considered, that there is a reasonable 

possibility that none of the mandatory 

bars apply, or if the noncitizen 

established a reasonable possibility of 

torture. 

• The rule provides that an AO will 

enter a negative credible fear 

determination when conducting a 

credible fear screening under the 

additional procedures in 8 CFR 

208.33(b)(2) if the AO determines that 

the noncitizen failed to show a 

reasonable possibility that a mandatory 

bar does not apply and was unable to 

demonstrate a reasonable possibility of 

torture. 

• The rule provides AOs the 

discretion to consider mandatory bars to 

statutory withholding of removal under 

INA sec. 241(b)(3)(B), 8 U.S.C. 

1231(b)(3)(B), in reasonable fear 

screenings. 

• The rule provides that, if an AO 

considers the mandatory bars to 

statutory withholding of removal under 

INA sec. 241(b)(3)(B), 8 U.S.C. 

1231(b)(3)(B), a noncitizen will be found 

to have a reasonable fear of persecution 

if there is a reasonable possibility that 

the noncitizen would be persecuted on 

account of their race, religion, 

nationality, membership in a particular 

social group or political opinion, and 

the noncitizen has established a 

reasonable possibility that no bar 

applies.3

This Final Rule makes the following 

clarifying edits to the regulatory text 

proposed in the NPRM: 

• The rule adds the phrase ‘‘in a 

proceeding on the merits’’ to 8 CFR 

208.30(e)(5)(ii)(A) and (B) to clarify how 

AOs will apply in credible fear 

screenings the ‘‘significant possibility’’ 

standard with respect to mandatory bars 

to asylum and statutory withholding of 

removal, that is, by determining 

whether there is a significant possibility 

that, in a proceeding on the merits, the 

noncitizen would be able to establish by 

a preponderance of the evidence that 

such bar(s) do not apply. 

• The rule removes the phrase 

‘‘persecution or’’ from the last sentence 

of 8 CFR 208.31(c) to clarify that the 

sentence concerns ‘‘reasonable fear of 

torture’’ only, as ‘‘reasonable fear of 

persecution’’ is defined earlier in the 

paragraph. 

IV. Response to Public Comments on 

the Proposed Rule 

A. Summary of Comments on the 

Proposed Rule 

In response to the proposed rule, DHS 

received 4,293 comments during the 30- 

day public comment period. 

Approximately 3,864 of the comments 

were letters submitted through mass 

mailing campaigns, and 297 comments 

were unique submissions. Primarily, 

individuals and anonymous entities 

submitted comments, as did multiple 

advocacy groups and legal services 

providers. Other commenters included 

attorneys, religious and community 

organizations, elected officials, and 

research and educational institutions, 

among others. 

Comments received during the 30-day 

comment period are organized by topic 

below. DHS reviewed the public 

comments received in response to the 

proposed rule and addresses relevant 

comments in this Final Rule, grouped 

by subject area. DHS does not address 

comments seeking changes in U.S. laws, 

regulations, or agency policies that are 

unrelated to the changes made by this 

rule. This Final Rule does not resolve 

issues that are outside the scope of this 

rulemaking. A brief summary of 

comments DHS 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–2024–0005. 

Following careful consideration of 

public comments received, DHS in this 

Final Rule has not made substantive 

modifications to the regulatory text 

proposed in the NPRM but has made 

clarifying edits as described in Part III 

above. The rationale for the proposed 

rule and the reasoning provided in the 

background section of that rule remain 

valid with respect to the regulatory 


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4 In this preamble, ‘‘irregular migration’’ refers to 

the movement of people into another country 

without authorization. 5See, e.g., USCIS, ‘‘RAIO Directorate—Officer 

Training: Mandatory Bars’’ (May 9, 2013); USCIS, 

‘‘RAIO Directorate—Officer Training: Definition of 

Persecution and Eligibility Based on Past 

Persecution’’ (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Nexus and the 

Protected Grounds’’ (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Well-Founded Fear’’ 

(Apr. 24, 2024). 

6 89 FR 41347, 41351–52 (May 13, 2024). 

7See U.S. Citizenship and Immigration Services, 

Uniting for Ukraine, https://www.uscis.gov/ukraine 

(last visited Sept. 25, 2024). 

amendments made by this Final Rule, 

except where a new or supplemental 

rationale is reflected in this Final Rule. 

B. General Feedback on the Proposed 

Rule 

1. General Support for the Proposed 

Rule 

a. Positive or Minimal Impacts on 

Noncitizens and Their Support Systems 

Comment: A commenter said that the 

proposed rule would not increase the 

risk of erroneous denials, stating that 

most of the people requesting asylum 

are economic migrants. 

Response: DHS appreciates the 

commenter’s support for the rule and 

agrees that the rule will not increase the 

risk of erroneous determinations. DHS 

believes the rule will result in AOs 

issuing negative fear determinations in 

certain cases where there is evidence 

that a mandatory bar applies to a 

noncitizen, there is a lack of evidence 

that the bar should not be applied (e.g., 

due to an exception to the bar or the 

application of an exemption to the bar, 

such as an exemption applied pursuant 

to INA sec. 212(d)(3)(B)(i), 8 U.S.C. 

1182(d)(3)(B)(i)) and the noncitizen is 

not otherwise able to establish a positive 

fear of torture at the applicable 

standard. The rule will provide the 

Department greater flexibility to quickly 

screen out noncitizens with nonmeritorious protection claims and 

swiftly remove noncitizens who present 

a national security or public safety 

concern. The Department does not 

otherwise rely on the commenter’s 

assertion—that most people requesting 

asylum are economic migrants—as a 

justification for the rule. 

b. Positive Impacts on Immigration 

System and Government Operations and 

Resources 

Comment: Some commenters 

expressed support for the proposed rule 

and were concerned about abuse of the 

asylum system. These commenters 

expressed concern about fraudulent 

asylum claims and high levels of 

unlawful entry. These commenters also 

believe that noncitizens are exploiting 

the immigration processes and that 

application of the mandatory bars at the 

screening stage will eliminate removal 

delays. One commenter stated that AOs 

are capable of assessing mandatory bars 

at the credible fear stage and that AOs 

are well-trained in asylum law. One 

comment supported the proposed rule, 

agreeing that it will help avoid 

unnecessary detention of noncitizens 

and enhance public safety. 

Response: DHS appreciates the 

commenters’ support for the rule. DHS 

believes it is appropriate to authorize 

additional procedures by which to 

deliver swift decisions on nonmeritorious claims and consequences 

for irregular migration,4 rather than 

allowing ineligible individuals to 

further tax limited resources. DHS 

agrees that AOs are highly capable of 

assessing mandatory bars at the credible 

fear screening stage, as well as the 

reasonable fear screening stage, based 

on their specialized training in asylum 

law, including in applying mandatory 

bars.5

DHS agrees with the commenter that 

the rule will help avoid unnecessary 

detention and enhance public safety by 

prioritizing the speedy removal of 

noncitizens who may pose security 

threats. Noncitizens who may have 

otherwise remained in detention 

throughout the immigration court 

process for a full adjudication on the 

merits of their claim, despite the 

existence of easily verifiable evidence 

showing that they would be subject to 

a mandatory bar, will be quickly 

removed, thereby conserving the 

government’s detention capacity. 

2. General Opposition to the Proposed 

Rule 

a. Conflicts With Humanitarian Values 

Comment: Numerous commenters 

expressed concerns that the rule 

conflicts with humanitarian values. 

These commenters asserted that U.S. 

immigration policy should embody the 

values of compassion and 

humanitarianism and affirm the right to 

asylum and that the rule does not do so. 

These commenters stated that the rule 

would violate the international and 

universal right to safety and asylum. 

These commenters also stated that the 

rule is immoral and contrary to U.S. 

values, as they believe it would return 

asylum seekers to countries without 

meaningful protection and where they 

would still be in harm’s way. These 

commenters believe the rule would 

contradict the United States’ longstanding history of welcoming 

immigrants and supporting the 

international asylum system. Several 

commenters believe the proposed rule 

would have negative impacts on asylum 

seekers who are at risk of persecution in 

their home countries and have 

experienced hardships to reach the 

border. Another commenter stated that 

the proposed rule undermines the 

current asylum system and could send 

noncitizens with legitimate asylum 

claims back to danger. A few 

commenters said that the right to seek 

asylum is crucial to the safety and 

justice of all people, and that the 

immigration system should be more 

welcoming instead of limiting asylum 

access. Other commenters remarked that 

the asylum system needs to be reformed 

to make it fair and just because denying 

asylum could endanger those who are 

seeking safety. Another commenter 

stated that people do not willingly leave 

their homes and family to seek asylum. 

Some commenters believe that U.S. 

policies have created the conditions in 

other countries that force individuals to 

flee from their homes. Some 

commenters believe that deterrence 

policies and detention of noncitizens 

seeking asylum is immoral and that the 

rule is based on racism and xenophobia. 

One commenter believes the rule would 

serve more as a barrier to asylum than 

as a measure to protect U.S. national 

security. 

Response: DHS disagrees with these 

commenters’ claims concerning the rule. 

This rule focuses on enhancing DHS’s 

ability to swiftly remove noncitizens 

who are ineligible for asylum and 

statutory withholding of removal and 

are enforcement priorities: those who 

present a threat to national security or 

public safety, while maintaining DHS’s 

authority to create and implement safe, 

orderly, and humane migration 

pathways. As explained in the NPRM, 

the population to which this rule will 

apply is likely to be relatively small, as 

informed by the number of cases 

identified as potentially implicating 

mandatory bars that are flagged by 

USCIS during screenings.6 The U.S. 

government has implemented, and will 

continue to implement, a number of 

measures designed to enhance and 

expand lawful pathways and processes 

for noncitizens seeking to enter the 

United States, including to seek asylum. 

Examples of lawful pathways include: 

the Uniting for Ukraine process, which 

allows Ukrainian nationals to receive 

humanitarian parole into the United 

States, enabling them to travel by air to 

the United States and be resettled; 7 the 

multilateral Safe Mobility initiative, 

currently operating in Colombia, Costa 

Rica, Ecuador, and Guatemala, which 


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8U.S. Dep’t of State, Safe Mobility Initiative, 

https://www.state.gov/refugeeadmissions/safemobility-initiative (last visited Aug. 23, 2024); The 

White House, Fact Sheet: Biden-Harris 

Administration on World Refugee Day Celebrates a 

Rebuilt U.S. Refugee Admissions Program, June 20, 

2024, https://www.whitehouse.gov/briefing-room/ 

statements-releases/2024/06/20/fact-sheet-bidenharris-administration-on-world-refugee-daycelebrates-a-rebuilt-u-s-refugee-admissionsprogram/ (last visited Aug. 29, 2024). 

9See U.S. Citizenship and Immigration Services, 

Processes for Cubans, Haitians, Nicaraguans, and 

Venezuelans, https://www.uscis.gov/CHNV (last 

visited Sept. 25, 2024). 

10See generally U.S. Citizenship and Immigration 

Services, Family Reunification Parole Processes, 

https://www.uscis.gov/FRP (last visited Aug. 23, 

2024). 

11See, e.g., 88 FR 80394 (Nov. 17, 2023) 

(authorizing up to 64,716 additional H–2B 

nonimmigrant visas for Fiscal year 2024). 

12See Memorandum on Presidential 

Determination on Refugee Admission for Fiscal 

Year 2024, Presidential Determination No. 2023–13 

(Sept. 29, 2023) (providing for the admission of 

35,000–50,000 refugees from the Latin America/ 

Caribbean region to the United States during Fiscal 

Year (FY) 2024); Memorandum on Presidential 

Determination on Refugee Admission for Fiscal 

Year 2025, Presidential Determination No. 2024–13 

(Sept. 30, 2024) (providing for the admission of 

35,000–50,000 refugees from the Latin America/ 

Caribbean region to the United States during FY 

2025). 

13See CBP, ‘‘CBP OneTM Mobile Application,’’ 

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

cbpone (last visited Aug. 14, 2024). 

14See CBP STAT Division, ‘‘U.S. Customs and 

Border Protection (CBP) Enforcement Encounters— 

Southwest Border (SBO), Office of Field Operations 

(OFO) Daily Average’’ (internal data report, 

retrieved Apr. 13, 2023). 

provides access to information and 

education about other lawful pathways 

to the United States and partner 

countries, local integration, and, for 

eligible individuals, expedited refugee 

processing to the United States; 8 the 

new processes for up to 30,000 Cuban, 

Haitian, Nicaraguan, and Venezuelan 

(CHNV) nationals per month to apply 

for advance authorization to seek parole 

into the United States, enabling them to 

travel by air to the United States; 9 and 

country-specific family reunification 

parole processes for certain nationals of 

Colombia, Cuba, Ecuador, El Salvador, 

Guatemala, Haiti, and Honduras who 

have U.S. citizen relatives in the United 

States.10 DHS and its interagency 

partners have also increased H–2B 

nonimmigrant visa availability 11 and 

refugee processing for countries within 

the Western Hemisphere.12 Noncitizens 

who do not avail themselves of these 

pathways can schedule an appointment 

through the Customs and Border 

Protection (CBP) One app, a scheduling 

tool used by noncitizens to present 

themselves at a southwest land border 

port of entry (POE) 13 The use of the CBP 

One app for scheduling has contributed 

to U.S. Customs and Border Protection’s 

efforts to expand its southwest border 

POE migrant processing capacity well 

beyond the 2010–2016 daily POE 

average,14 resulting in increased access 

for noncitizens to POEs. 

b. Due Process Concerns 

Comment: Many commenters 

expressed general due process concerns. 

Commenters stated that individual due 

process protections are critical and that, 

under the proposed rule, DHS would 

undermine or abandon due process in 

order to expedite the asylum process. 

Commenters stated that to alleviate due 

process concerns, the Department 

should refrain from implementing the 

rule. 

Response: The Department disagrees 

with these commenters’ claims 

concerning due process. This rule does 

not affect the provisions that address 

who DHS may refer for a credible fear 

screening or reasonable fear screening. 

See INA sec. 235(b)(1)(A)(ii), 8 U.S.C. 

1225(b)(1)(A)(ii), 8 CFR 235.3(b)(4), 8 

CFR 235.15(b)(4), 208.30(b), and 

208.31(b). This rule does not impinge 

noncitizens’ statutory right to 

representation in the credible and 

reasonable fear processes. See, e.g., 8 

CFR 208.30(d)(4),8 CFR 208.31(c), 8 CFR 

235.15(b)(4)(i)(B). Additionally, 

noncitizens in credible fear may 

continue to consult with persons of 

their choosing. 8 CFR 208.30(d)(4); 8 

CFR 235.15(b)(4)(i)(B). Further, the rule 

does not alter the preexisting rights or 

opportunities for noncitizens in credible 

or reasonable fear proceedings to seek 

immigration judge review of negative 

credible fear or reasonable fear 

determinations. See 8 CFR 208.30(g)(1), 

208.31(g), 208.33(b)(2), 208.35(b)(2) 

1003.42, 1208.31(g), 1208.33(b). 

Accordingly, the rule preserves 

noncitizens’ process rights as provided 

in the INA. See DHS v. Thuraissigiam, 

591 U.S. 103, 140 (2022) (reaffirming 

that noncitizens who arrive at U.S. ports 

of entry or are encountered shortly after 

unlawfully crossing the U.S. border and 

are placed in expedited removal 

proceedings, including those in the 

credible fear screening process, have 

‘‘only those rights regarding admission 

that Congress has provided by statute’’). 

Comment: Many commenters 

expressed concerns regarding access to 

legal counsel under the proposed rule. 

Commenters voiced concerns that the 

rule would inhibit access to legal 

counsel. Commenters noted that the 

credible fear process occurs shortly after 

individuals reach the United States, and 

they lack access to an attorney or have 

experienced trauma. Commenters also 

noted that individuals in the asylum 

process need sufficient time to find legal 

counsel and that as a result of the 

proposed rule, individuals would not be 

able to pass the initial credible fear 

screening and would be removed before 

even being able to secure legal 

representation. Some commenters 

pointed to the low representation rates 

of detained asylum seekers stemming 

from the reliance on telephone access 

from remote detention facilities to 

obtain counsel and the rapid timelines 

associated with screening 

determinations. Commenters believe 

that attempts to provide legal 

representation to detained individuals 

in screenings have been compromised 

or obstructed. A commenter said that it 

is hard to establish a credible fear of 

persecution and some noncitizens are 

not prepared to address the nuances 

asked of them in screenings; thus, they 

need lawyers to help them understand 

the law. Several commenters remarked 

on the particular need for access to 

counsel if AOs were to consider 

mandatory bars because challenging the 

applicability of a bar would be difficult 

without an attorney. A commenter 

stated that every noncitizen whose case 

is flagged with a possible mandatory bar 

should be notified of their right to 

counsel and allowed time to secure an 

attorney, and contrasted the reported 

difficulty of securing an attorney during 

the expedited removal process with the 

relative ease of doing so in section 240 

removal proceedings. 

Response: The Department disagrees 

with the commenters’ claims that this 

rule inhibits access to counsel. As an 

initial matter, because this rule does not 

alter procedures governing consultation 

or representation, commenters’ concerns 

regarding those issues are outside the 

scope of this rulemaking. Procedures 

regarding consultation and 

representation are governed by other 

DHS regulations, guidance, and policies. 

See 8 CFR 235.3(b)(4)(ii); 208.30(d)(4), 8 

CFR 208.31(c). 

This rule does not amend the preexisting rights of noncitizens regarding 

their rights to representation during fear 

screenings. Specifically, during credible 

fear screenings, the INA provides that a 

noncitizen ‘‘may consult with a person 

or persons of the [noncitizen]’s choosing 

prior to the interview or any review 

thereof, according to regulations 

prescribed by the Attorney General,’’ 

provided that ‘‘[s]uch consultation shall 

be at no expense to the Government and 

shall not unreasonably delay the 

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

1225(b)(1)(B)(iv). This statutory right to 

consult does not attach until a 

noncitizen becomes eligible for a 


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15See USCIS, RAIO Directorate—Officer 

Training: Mandatory Bars (May 9, 2013); USCIS, 

RAIO Directorate—Officer Training: Interviewing— 

Introduction to the Non-Adversarial Interview (Apr. 

24, 2024); USCIS, RAIO Directorate—Officer 

Training: Interviewing—Eliciting Testimony (Apr. 

24, 2024); USCIS, RAIO Directorate—Officer 

Training: Interviewing—Working with an Interpreter 

(Apr. 24, 2024); USCIS, RAIO Directorate—Officer 

Training: Cross-Cultural Communication and Other 

Factors That May Impede Communication at an 

Interview (Apr. 24, 2024); USCIS, RAIO 

Directorate—Officer Training: Interviewing 

Survivors of Torture and Other Severe Trauma 

(Apr. 24, 2024). 

16See 8 CFR 208.30(e)(8); see also Memorandum 

for the Record, from Ted Kim, Assoc. Dir., Refugee, 

Asylum, and Int’l Operations Directorate, USCIS, 

Re: Asylum Division Training, Staffing, Capacity, 

and Credible Fear Procedures (Sept. 26, 2024). 

17See USCIS, RAIO Directorate—Officer 

Training: Mandatory Bars (May 9, 2013); USCIS, 

RAIO Directorate—Officer Training: Interviewing— 

Introduction to the Non-Adversarial Interview (Apr. 

24, 2024); USCIS, RAIO Directorate—Officer 

Training: Interviewing—Eliciting Testimony (Apr. 

24, 2024). 

credible fear interview, and it does not 

guarantee an absolute right to retain 

counsel. See id. The credible fear review 

regulations further provide that a 

noncitizen ‘‘may consult with a person 

or persons of the [noncitizen’s] choosing 

prior to the interview or any review 

thereof,’’ ‘‘[s]uch consultation shall be at 

no expense to the Government and shall 

not unreasonably delay the process,’’ 

and that the person(s) with whom the 

noncitizen consulted ‘‘may be present at 

the interview and may be permitted, in 

the discretion of the asylum officer, to 

present a statement at the end of the 

interview.’’ 8 CFR 208.30(d)(4). During 

the reasonable fear screening process, 

individuals may be represented by an 

attorney or an accredited representative 

at no cost to the government. 

Individuals who may be subject to a 

mandatory bar will have the 

opportunity to show that the bar does 

not apply during the screening 

interview. Credible fear and reasonable 

fear screening determinations are based 

on non-adversarial interviews that occur 

in an expedited manner, such that the 

scope of representation is necessarily 

limited when compared to a lengthy 

adversarial hearing before EOIR. In 

addition to substantive training on 

applying mandatory bars, AOs receive 

training and have practical experience 

conducting non-adversarial interviews, 

eliciting testimony, working with 

interpreters, cross-cultural 

communication, and working with 

vulnerable populations.15 AOs regularly 

assess the mandatory bars in affirmative 

asylum adjudications and asylum merits 

interviews (AMIs); therefore, it is not 

unusual for AOs to consider these 

issues. Accordingly, AOs are well-suited 

in a screening interview to develop the 

record regarding a potential mandatory 

bar and to ensure the noncitizen has an 

opportunity to provide evidence as to 

why a given bar does not apply at the 

appropriate standard of proof. 

Moreover, all credible fear and 

reasonable fear determinations are 

reviewed by a supervisory AO for 

procedural and substantive accuracy 

and completeness before becoming 

final.16 DHS also believes that the nonadversarial nature of credible fear and 

reasonable fear screenings, in contrast 

with adversarial section 240 removal 

proceedings, sufficiently mitigates the 

commenters’ concerns about the more 

compressed timeframe noncitizens have 

to secure an attorney during the 

expedited removal process, and 

challenges of accessing counsel in 

detention. 

Finally, DHS disagrees that the 

consideration of mandatory bars is 

categorically more complex than the 

consideration of the full array of issues 

that are currently presented in screening 

cases on a routine basis. For example, 

determining whether a noncitizen’s 

testimony is credible, whether harm 

experienced or feared was or would be 

inflicted on account of a protected 

ground, or whether torture feared would 

be inflicted with the consent or 

acquiescence of a person acting in an 

official capacity are all potentially 

complex issues that AOs regularly 

consider and analyze in fear screenings. 

As such, and in view of AOs’ training 

and experience previously described, 

the Department does not agree that a 

noncitizen’s ability to obtain counsel for 

such an interview presents new or 

greater concerns than those presented 

by a screening interview where 

mandatory bars are not considered. 

Comment: A commenter expressed 

concern that AOs would rely on 

evidence such as Interpol Red Notices 

issued by authoritarian regimes as a 

basis for considering the applicability of 

bars. 

Response: The Department has 

implemented measures to combat the 

impact of abusive or unwarranted 

INTERPOL notices separate and apart 

from this rule. For example, DHS has 

issued internal guidance on the 

appropriate handling of INTERPOL 

notices that are suspected of having 

been issued by a country for the purpose 

of persecuting an individual or 

otherwise appear to be prohibited or 

noncompliant. 

Comment: A few commenters 

expressed concern regarding the ability 

to collect and present evidence during 

credible fear screenings. The 

commenters stated that the inability to 

compile evidence would adversely 

impact noncitizens, as they would not 

be able to gather evidence disputing the 

application of a bar. Commenters stated 

that consideration of the bars to asylum 

and statutory withholding of removal in 

credible fear or reasonable fear 

interviews does not afford an asylum 

seeker the opportunity to present the 

extensive evidence needed to rebut a 

finding that one of the asylum bars 

applies. Commenters stated that the 

expedited removal process does not 

afford sufficient opportunity for 

noncitizens to gather the evidence 

needed to demonstrate a bar does not 

apply to them and that the rule would 

require noncitizens to understand 

highly complex bars to eligibility that 

newly arriving people cannot be 

expected to understand. Commenters 

asserted that often, the evidence these 

bars apply comes from unverified or 

difficult-to-verify sources. Several 

commenters opposed the proposed rule 

on the basis that detained noncitizens in 

expedited removal proceedings would 

have difficulty discussing or adequately 

defending themselves against the 

application of mandatory bars because 

of the effect of trauma resulting from 

past harm or their journey to the United 

States, hunger, and linguistic or cultural 

barriers. 

Response: The Department disagrees 

that this rule would negatively impact 

noncitizens in this manner. AOs have a 

duty to elicit all relevant and useful 

information on a fear claim. See, e.g., 8 

CFR 208.30(d). Credible testimony alone 

may be the basis of a positive fear 

determination without the need for any 

corroborative documentary evidence. 

Where an AO exercises discretion to 

consider a mandatory bar in a fear 

screening, the AO will provide the 

noncitizen with an opportunity to 

present evidence that the bar does not 

apply, and credible testimony alone 

may be sufficient evidence to make that 

showing. As noted above, AOs have 

training and experience in the 

substantive application of mandatory 

bars and in non-adversarial interviewing 

and eliciting testimony and are therefore 

well-positioned to develop and evaluate 

the record in such cases, including 

weighing the reliability and probative 

value of available evidence.17 Further, 

all credible fear and reasonable fear 

determinations undergo supervisory 

review prior to service. 

Noncitizens undergoing fear 

screenings where a bar is considered 

would be able to demonstrate that the 

bar does not apply at the relevant 

standard. For example, in credible fear 

under 8 CFR 208.30, a noncitizen must 


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18See USCIS, ‘‘RAIO Directorate—Officer 

Training: Interviewing—Eliciting Testimony’’ (Dec. 

20, 2019). 

19See USCIS, ‘‘RAIO Directorate—Officer 

Training: Cross-Cultural Communication and Other 

Factors That May Impede Communication at an 

Interview’’ (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Interviewing 

Survivors of Torture and Other Severe Trauma’’ 

(Apr. 24, 2024). 

20As noted in the NPRM, see 89 FR at 41353 n.30, 

DHS has long applied in the expedited removal 

process the ‘‘safe-third-country’’ bar to eligibility to 

apply for asylum at INA 208(a)(2)(A), 8 U.S.C. 

1158(a)(2)(A). See 8 CFR 208.30(e)(6). 

demonstrate that there is a significant 

possibility that they could establish that 

the bar does not apply by a 

preponderance of evidence at a future 

proceeding. Similarly, noncitizens 

would need to establish a reasonable 

possibility that the bar does not apply 

in credible fear screenings under 8 CFR 

208.33, or in reasonable fear screenings 

under 8 CFR 208.31, and noncitizens 

need to establish a reasonable 

probability that the bar does not apply 

in credible fear screenings conducted 

under 8 CFR 208.35. The screening 

standards themselves ensure a fair 

process in that the noncitizen need only 

meet the significant possibility, 

reasonable possibility, or reasonable 

probability standard in order to pass 

through the screening process. These 

standards, which are either lower or the 

same as the standards that apply in full 

adjudications of asylum and statutory 

withholding of removal requests, do not 

require the presentation of the same 

extent of evidence that would be needed 

in a full merits hearing or interview. 

Furthermore, this rule does not create a 

complicated process requiring full 

evidence gathering and determinations 

to be made on possible bars to 

eligibility. Rather, AOs will only 

consider a bar in those cases where 

there is easily verifiable (as opposed to 

unverified or difficult-to-verify) 

evidence available to the AO that, in 

their discretion, warrants an inquiry 

into a bar, and the AO can consider that 

bar efficiently at the screening stage. 

AOs are trained to elicit all relevant 

testimony in a non-adversarial 

manner 18 to ensure noncitizens have a 

fair opportunity to provide any evidence 

necessary to evaluate their claim, which 

under this rule may include the 

applicability of any bars or the 

availability of any exceptions or 

exemptions. 

DHS rejects the notion that it is 

categorically more difficult for a 

noncitizen to discuss issues 

surrounding mandatory bars than it is to 

discuss other issues that are already the 

subject of screening interviews. AOs are 

trained to work with noncitizens who 

are experiencing the effects of trauma 

and to communicate across cultural and 

linguistic barriers.19 AOs routinely 

interview noncitizens in protection 

screening interviews on matters that 

many find challenging to discuss, 

including torture, sexual assault, 

familial violence, and the deaths of 

family members. 

The permissive nature of the rule is 

also well-tailored to a situation where 

the noncitizen is unable to testify in 

depth due to the effects of trauma, or a 

situation where the noncitizen may be 

better able to provide evidence that a 

mandatory bar does not apply to them 

in a full hearing. As explained in the 

proposed rule, AOs should only apply 

a mandatory bar in a screening 

interview where there is ‘‘easily 

verifiable information’’ that the bar may 

apply, and even then, to only do so if 

the inquiry can be done efficiently. 89 

FR at 41354. Should the AO determine 

that the issue would be better 

considered at a later stage, they retain 

the discretion under this proposed rule 

to decline to consider mandatory bars 

during the screening determination. 

Comment: Many commenters 

expressed concerns regarding the 

application of mandatory bars by AOs 

and officer discretion, emphasizing that 

the application of the bars is complex, 

and asserting that immigration judges— 

not AOs—should evaluate the complex 

legal issues associated with the 

application of the mandatory bars. 

Several commenters noted that bars to 

asylum and statutory withholding of 

removal can involve complex factual 

and legal inquiries, with some pointing 

out that DHS itself, in a prior 

rulemaking removing bars from 

consideration in credible fear 

screenings, concluded that such a ‘‘factintensive inquiry requiring complex 

legal analysis [] 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.’’ 87 FR 18078, 18093 (Mar. 

29, 2022) (‘‘Asylum Processing IFR’’). 

Commenters argued that DHS’s 

representation that AOs would consider 

bars only in those cases where there is 

easily verifiable evidence available to 

the AO that in their discretion warrants 

an inquiry into a bar and where the AO 

is confident that they can consider that 

bar efficiently is insufficient given the 

complexity of this area of the law. 

Commenters stated that the bars could 

be applied incorrectly, arbitrarily, or 

unfairly, endangering individuals. 

Commenters also stated that the 

application of bars may be based on 

evidence from foreign entities, which 

U.S. immigration officials cannot 

independently verify and which may be 

inaccurate. Commenters stated that 

noncitizens in credible and reasonable 

fear processes should be subject to the 

same rules and that individuals are 

entitled to a transparent, humane 

process. Commenters also stated that 

AOs could be more likely to issue 

negative determinations of credible fear 

as a result of the proposed rule, 

especially if they do not listen to a 

noncitizen fully or fairly. 

A few commenters discussed officer 

bias or misconduct during the screening 

process. Commenters stated that, 

according to a complaint filed with the 

DHS Office for Civil Rights and Civil 

Liberties, AOs scheduled credible fear 

interviews without notifying the 

attorney of the interview; incorrectly 

applied standards when evaluating 

claims; used adversarial interview 

techniques on individuals; subjected 

noncitizens to interviews in languages 

in which they are not fluent; and failed 

to provide noncitizens with appropriate 

language interpreters. Commenters 

stated that there would be no 

mechanisms for upholding 

accountability under the proposed rule. 

Other commenters stated that the 

proposed rule would yield an asylum 

process that is less consistent and 

transparent, in part because of the 

discretion with which AOs would ask 

questions, and the lack of consistency 

and transparency would thwart efforts 

to monitor the process. 

A commenter asserted that the rule 

would confuse the role of AOs during 

the screening process with that of a final 

adjudicator. According to the 

commenter, although the proposed rule 

may purport to avoid adverse outcomes 

by making the application of the bars at 

the fear screening stage discretionary 

instead of mandatory, the distinction 

would be negligible. 

Response: The Department disagrees 

with the claim that only immigration 

judges, not both immigration judges and 

AOs, should evaluate or apply the 

mandatory bars. DHS also rejects the 

notion that the consideration of 

mandatory bars is categorically more 

complex than the consideration of the 

full array of issues that AOs address on 

a routine basis. AOs regularly assess the 

mandatory bars in affirmative asylum 

adjudications and asylum merits 

interviews (AMIs); therefore, it is not 

unusual for AOs to consider these 

issues.20

The Department also rejects the 

assertion that the rule should not be 

implemented due to potential officer 

bias or misconduct in the interview and 


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21See USCIS, ‘‘RAIO Directorate—Officer 

Training: Mandatory Bars’’ (May 9, 2013); USCIS, 

‘‘RAIO Directorate—Officer Training: 

Interviewing—Introduction to the Non-Adversarial 

Interview (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Interviewing— 

Eliciting Testimony (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Interviewing— 

Working with an Interpreter’’ (Apr. 24, 2024); 

USCIS, ‘‘RAIO Directorate—Officer Training: CrossCultural Communication and Other Factors That 

May Impede Communication at an Interview’’ (Apr. 

24, 2024). 

22See 8 CFR 208.30(e)(8); see also Memorandum 

for the Record, from Ted Kim, Assoc. Dir., Refugee, 

Asylum, and Int’l Operations Directorate, USCIS, 

Re: Asylum Division Training, Staffing, Capacity, 

and Credible Fear Procedures (Sept. 26, 2024). 

23See USCIS, ‘‘RAIO Directorate—Officer 

Training: Mandatory Bars’’ (May 9, 2013); USCIS, 

‘‘RAIO Directorate—Officer Training: 

Interviewing—Introduction to the Non-Adversarial 

Interview (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Interviewing— 

Eliciting Testimony (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Interviewing— 

Working with an Interpreter’’ (Apr. 24, 2024); 

USCIS, ‘‘RAIO Directorate—Officer Training: CrossCultural Communication and Other Factors That 

May Impede Communication at an Interview’’ (Apr. 

24, 2024); USCIS, ‘‘RAIO Directorate—Officer 

Training: Interviewing Survivors of Torture and 

Other Severe Trauma’’ (Apr. 24, 2024). 

24See 8 CFR 103.10(b), 1003.1(g); see also USCIS, 

‘‘RAIO Directorate—Officer Training: Reading and 

Using Case Law’’ 14 (April 24, 2024). 25See INA secs. 212(a)(3)(B)(i)(V), 237(a)(4)(B), 8 

U.S.C. 1182(a)(3)(B)(i)(V), 1227(a)(4)(B); see also 86 

FR 68294 (Dec. 1, 2021). 

lack of accountability through the 

process. AOs are capable of conducting 

thorough screening interviews, applying 

the mandatory bars when applicable, 

and maintaining fairness throughout the 

process, as is required by their role.21

AOs are well trained in asylum law, and 

all credible fear and reasonable fear 

determinations are reviewed by a 

supervisory asylum officer (SAO) for 

accuracy and legal sufficiency.22 As 

explained above, AOs receive training 

in and have experience in nonadversarial interviewing and eliciting 

testimony, in addition to substantive 

training on applying mandatory bars 

and experience applying mandatory 

bars in full asylum adjudications.23

The Department also rejects the claim 

that this new process will confuse the 

role of the AO with a final adjudicator. 

At the start of the screening interview, 

the AO will introduce themselves and 

explain the interview process so as to 

avoid confusion about roles or 

procedures. Noncitizens are also 

provided with an information sheet on 

the credible or reasonable fear process 

that explains the purpose and nature of 

the screening interview, including 

possible outcomes and what to expect 

following the interview. In addition, 

making a determination regarding a 

mandatory bar, when considered, does 

not make an AO any more or less of a 

final adjudicator than making a 

determination regarding substantive 

eligibility, as is currently done and is 

unaffected by this rule. 

Furthermore, the Department 

disagrees with the claims that, as a 

result of the complexity of analyzing the 

mandatory bars, AOs may apply the bars 

incorrectly or unfairly. Considering the 

training and experience AOs possess, 

they are well-suited to exercise 

discretion to apply mandatory bars in 

the screening context and, where 

evidence related to a mandatory bar is 

too complex to be fully explored in the 

screening context, to exercise their 

discretion not to apply the bar in the 

screening determination. AOs will 

continue to issue positive fear 

determinations where a noncitizen 

demonstrates a credible or reasonable 

fear at the applicable screening 

standard, even where there may be 

indicia of a mandatory bar but the 

available evidence at the screening stage 

as to the bar or any available exception 

or exemption is limited. 

DHS acknowledges that properly 

analyzing bars to asylum and statutory 

withholding of removal can involve 

complicated, extensive factfinding and 

legal analysis. Furthermore, some 

aspects of this area of law remain 

unsettled, and different courts have 

come to different conclusions on certain 

legal questions related to these bars. 

USCIS Asylum Officers must follow 

precedent Board of Immigration 

Appeals (BIA) and Attorney General 

decisions, except when they have been 

modified or overruled by subsequent 

decisions of the BIA or the Attorney 

General, or there is a conflicting 

published opinion on the issue by the 

U.S. Supreme Court or by the U.S. Court 

of Appeals with jurisdiction over the 

matter.24 It is not the case that the 

considerations relating to legal analysis 

hold true in every case in which a 

mandatory bar arises. For example, a 

noncitizen who claims to fear 

persecution by the government of 

Colombia on account of political 

opinion, but who credibly testifies to 

being a current member of the 

Revolutionary Armed Forces of 

Colombia—People’s Army, would 

clearly be barred from both asylum and 

withholding of removal pursuant to INA 

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

1158(b)(2)(A)(v) and INA sec. 

241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B), as a 

current member of a designated foreign 

terrorist organization,25 regardless of 

whether the noncitizen could 

demonstrate they are a refugee or would 

be persecuted on account of a protected 

ground if returned to Colombia. DHS 

disagrees that AOs should be 

categorically foreclosed from 

determining there is no significant 

possibility or reasonable possibility 

such an individual could establish 

eligibility for these forms of relief or 

protection in a full merits hearing. This 

rule allows, but does not require, an AO 

encountering such a scenario to 

consider the applicable bar in a fear 

screening and to enter a negative 

determination with regard to the 

noncitizen’s eligibility for asylum or 

statutory withholding of removal, 

preventing the noncitizen from entering 

a potentially years-long immigration 

court process in pursuit of relief for 

which they are ineligible and allowing 

DHS and EOIR resources that would 

have been expended on such processes 

to be conserved for potentially 

meritorious cases. 

Comment: Many commenters 

expressed concerns with AOs 

considering mandatory bars during the 

fear screening stage, instead of 

immigration judges during section 240 

removal proceedings. Commenters 

stated that applying mandatory bars at 

the credible fear screening stage would 

preclude individuals from a full hearing 

that would provide them the 

opportunity to prepare their cases, 

present witnesses and evidence, and 

allow a court to determine the true 

nature of foreign convictions, which are 

often a part of the persecution that the 

noncitizen experienced in their home 

country for voicing dissent against an 

authoritarian government. Commenters 

stated these decisions should be made 

by immigration judges and that 

individuals should be able to appear 

before an immigration judge or have a 

fair hearing, be it at the onset of seeking 

status in the United States or when 

trying to overturn an order of removal. 

Commenters asserted that eliminating 

hearings at an earlier stage would deny 

noncitizens who have strong or pressing 

cases and that the proposed rule would 

increase negative determinations in 

credible fear and expedited removals. 

Several commenters additionally 

discussed the accuracy of negative 

credible fear determinations, stating that 

negative credible fear determinations 

are often dismissed or reversed after 

review by an immigration judge. A 

commenter referenced multiple 

examples when courts have questioned 

the reliability and value afforded to 

credible fear interviews, reasoning that 

rulings or removal orders have been 

overturned in part because of unreliable 

information elicited during the 

interviews. According to the 

commenter, the proposed rule would 

restrict asylum by placing even greater 

value on screenings that are already 


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26See USCIS, ‘‘RAIO Directorate—Officer 

Training: Mandatory Bars’’ (May 9, 2013); USCIS, 

‘‘RAIO Directorate—Officer Training: 

Interviewing—Introduction to the Non-Adversarial 

Interview (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Interviewing— 

Eliciting Testimony (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Interviewing— 

Working with an Interpreter’’ (Apr. 24, 2024); 

USCIS, ‘‘RAIO Directorate—Officer Training: CrossCultural Communication and Other Factors That 

May Impede Communication at an Interview’’ (Apr. 

24, 2024); USCIS, ‘‘RAIO Directorate—Officer 

Training: Interviewing Survivors of Torture and 

Other Severe Trauma’’ (Apr. 24, 2024). 

27See Memorandum for the Record, from Ted 

Kim, Assoc. Dir., Refugee, Asylum, and Int’l 

Operations Directorate, USCIS, Re: Asylum Division 

Training, Staffing, Capacity, and Credible Fear 

Procedures (Sept. 26, 2024). 

28See Memorandum for the Record, from Ted 

Kim, Assoc. Dir., Refugee, Asylum, and Int’l 

Operations Directorate, USCIS, Re: Asylum Division 

unreliable, and the bars would be 

applied without the safeguards afforded 

by section 240 removal proceedings. 

The commenter further stated that both 

the Biden and Trump administrations 

have distanced credible fear interviews 

from the low screening standard framed 

by Congress. 

Response: The Department disagrees 

with the claim that the mandatory bars 

should only be considered during 

section 240 removal proceedings before 

an immigration judge. As discussed 

above, AOs receive training in and have 

experience in non-adversarial 

interviewing and eliciting testimony, in 

addition to substantive training on 

applying mandatory bars and 

experience applying mandatory bars in 

full asylum adjudications.26

In addition, the Department disagrees 

that applying the bars earlier would 

preclude noncitizens from fully 

presenting their case compared to if the 

bars were only applied in a subsequent 

section 240 removal proceeding. Where 

evidence related to a mandatory bar is 

too complex to be fully explored in the 

screening context or where there is 

additional evidence that the noncitizen 

may not be subject to the bar because of 

an exception or exemption, AOs may 

exercise their discretion not to apply the 

mandatory bar in the screening 

determination. In those cases, if the 

noncitizen establishes a fear of 

persecution or torture at the applicable 

standard, the AO will issue a positive 

determination so that the bar may be 

further explored by the immigration 

judge. Where there is evidence available 

to the AO that triggers an inquiry into 

an applicable mandatory bar, and the 

AO determines that they can address 

that bar efficiently at the credible fear or 

reasonable fear interview, then the AO 

will give the noncitizen the opportunity 

to establish, at the relevant standard, 

that the bar would not apply. The 

Department believes this discretion will 

ensure that application of the 

mandatory bars in fear screenings only 

occurs in cases where USCIS can 

effectively and accurately apply the bar 

without creating inefficiencies or 

frustrating the streamlined nature of the 

screening process. This rule will allow 

AOs to, in their discretion, consider bars 

in the issuance of negative fear 

determinations only in certain cases 

where there is sufficient, easily 

verifiable evidence that a bar applies to 

a noncitizen, there is a lack of evidence 

that no bar applies or shall be applied, 

and the noncitizen is not otherwise able 

to establish a positive fear of torture at 

the applicable standard. 

Finally, the Department disagrees 

with comments that question the 

accuracy and reliability of the screening 

interviews and determinations and the 

claim that this rule will restrict asylum. 

AOs are trained to conduct thorough, 

fair, and non-adversarial interviews, and 

AOs play an integral role in the credible 

fear and reasonable fear screening 

process. Regarding immigration judge 

review of AOs’ credible fear or 

reasonable fear determinations, DHS 

notes that immigration judges have the 

authority to conduct de novo review of 

negative credible fear and reasonable 

fear determinations. 8 CFR 1003.42; 8 

CFR 1208.31(g). Otherwise, the 

procedures for immigration judge 

decisions vacating screening 

determinations are outside the scope of 

this rulemaking. 

Comment: Several commenters 

objected to the proposed rule on the 

basis that the rule would curtail the 

avenues for review of application of the 

mandatory bars. While the noncitizen 

would be able to seek review of an AO’s 

negative determination by an 

immigration judge, they would not be 

able to appeal the immigration judge’s 

decision to the Board of Immigration 

Appeals (BIA) or the Federal Court 

system. Commenters also stated the rule 

forecloses judicial review. 

Commenters wrote that the rule’s 

provisions for immigration judge review 

provide insufficient protections against 

erroneous negative screening 

determinations and raise due process 

concerns. One commenter indicated 

immigration judges, who frequently do 

not cite any law in their fear review 

denials, do not have time to devote to 

in-depth analysis with an additional 

layer of complexity added to hearings. 

A commenter stated that AOs’ credible 

fear determinations would be reversed 

more frequently if immigration judge 

review included basic due process 

protections, such as access to counsel. 

Another stated noncitizens might not 

know that immigration judge review of 

negative fear determination is available 

unless an AO tells them. 

Response: Negative screening 

determinations of all types are subject to 

review by an immigration judge. See 8 

CFR 208.30(g)(1), 208.31(g), 

208.33(b)(2), 208.35(b)(2). Should an 

immigration judge make a negative 

credible fear determination, no appeal 

of that determination is available. See 8 

CFR 1003.42(f)(2), 8 CFR 1208.31(g)(1). 

Nothing in the proposed rule alters 

these procedures, although the rule 

would allow AOs to base a negative 

determination on the application of a 

mandatory bar. 

The comments that the rule forecloses 

review of negative determinations are 

incorrect, as the regulations establish 

procedures for referring negative 

determinations for review by an 

immigration judge. Noncitizens are 

provided written notification of their 

right to request an immigration judge’s 

review of the AO’s credible fear 

determination. 8 CFR 235.3(b)(4)(i)(C). 

Where a noncitizen is issued a negative 

credible fear determination, they are 

served by asylum office staff with one 

of the following forms: Form I–869, 

Record of Negative Credible Fear 

Finding and Request for Review by 

Immigration Judge (where the negative 

credible fear determination is issued 

pursuant to 208.30); Form I–869B, 

Record of Negative Credible Fear and 

Reasonable Possibility Finding and 

Request for Review by Immigration 

Judge for Noncitizens Subject to the 

Condition on Asylum Eligibility 

Pursuant to 8 CFR 208.33(a); or Form I– 

869SB, Record of Negative Credible Fear 

and Reasonable Probability Finding and 

Request for Review by Immigration 

Judge for Noncitizens Subject to the 

Limitation on Asylum Eligibility 

Pursuant to 8 CFR 208.35(a). In all 

negative determinations, the form is 

read to the noncitizen aloud at service 

of the decision in a language they 

understand (via an interpreter if 

necessary) and includes an explanation 

of the noncitizen’s right to request 

immigration judge review of the 

negative determination, pursuant to 8 

CFR 208.30(g)(1), 208.33(b)(2)(iii), or 

208.35(b)(2)(iii).27 The noncitizen 

selects on the Form I–869, Form I–869B, 

or Form I–869SB, whether they request 

immigration judge review of the 

negative determination and signs the 

form, which also includes the signature 

of the interpreter, where applicable (or 

where the interpretation was via a 

USCIS telephonic contract interpreter, 

the interpreter ID number is recorded).28


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Training, Staffing, Capacity, and Credible Fear 

Procedures (Sept. 26, 2024). 

29See USCIS, ‘‘Reasonable Fear Procedures 

Manual,’’ Section III, https://www.uscis.gov/sites/ 

default/files/document/guides/ReasonableFear

ProceduresManual.pdf. 

30See 8 CFR 1208.13(c); 1208.16(b); 

1208.16(c);1208.16(d)(2); 1208.30(c)(2); 

1208.30(g)(2); 1208.31(c); and 1208.31(g). 

31See, e.g., 8 CFR 1240.10(a)(1)-(2), 

1240.11(c)(1)(iii), 1240.17(f)(1), 1240.32(a), 

1240.48(a). 32 INA sec. 242(a)(2)(A), 8 U.S.C. 1252(a)(2)(A). 

33See USCIS, ‘‘RAIO Directorate—Officer 

Training: Cross-Cultural Communication and Other 

Factors That May Impede Communication at an 

Interview’’ (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Interviewing 

Survivors of Torture and Other Severe Trauma’’ 

(Apr. 24, 2024). 

34See USCIS, ‘‘RAIO Directorate—Officer 

Training: Cross-Cultural Communication and Other 

Factors That May Impede Communication at an 

Interview’’ (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Interviewing 

Survivors of Torture and Other Severe Trauma’’ 

(Apr. 24, 2024). 

An immigration officer who refers a 

noncitizen subject to expedited removal 

to an AO for a credible fear interview 

will provide the noncitizen with a 

written disclosure describing, among 

other things, the right to request a 

review by an immigration judge of the 

AO’s credible fear determination. 8 CFR 

235.3(b)(4)(i). 

Where a noncitizen is issued a 

negative reasonable fear determination, 

they are served by asylum office staff 

with a Form I–898, Record of Negative 

Reasonable Fear Finding and Request 

for Review by Immigration Judge, which 

is read to them aloud in a language they 

understand (via an interpreter if 

necessary) and includes an explanation 

of the noncitizen’s right to request 

immigration judge review of the 

negative determination, pursuant to 8 

CFR 208.31(f)–(g). The noncitizen 

selects on the Form I–898 whether they 

request immigration judge review and 

signs the form, which also includes the 

signature of the interpreter, where 

applicable (or where the interpretation 

was via a USCIS telephonic contract 

interpreter, the interpreter ID number is 

recorded).29

DHS disagrees with the commenters 

stating that the rule’s provisions for 

immigration judge review are 

inadequate to ensure that sufficient 

procedural safeguards are provided or 

protect against erroneous screening 

determinations. Immigration judges are 

familiar with applying bars to asylum 

and statutory withholding of removal, as 

well as the applicable standards of proof 

involved in both fear screenings and full 

merits adjudications of asylum, 

statutory withholding of removal, and 

protection under the CAT.30 As 

discussed above, multiple provisions in 

title 8 of the Code of Federal 

Regulations provide notice of the right 

to access counsel.31

Furthermore, review of negative 

credible fear determinations is limited 

under INA sec. 235(b)(2)(C), 8 U.S.C. 

1225(b)(2)(C), to the review by an 

immigration judge previously described, 

so DHS has no authority to create 

additional mechanisms for a noncitizen 

to appeal a credible fear determination 

made during the expedited removal 

process pursuant to INA sec. 235(b), 8 

U.S.C. 1225(b).32 DHS acknowledges 

that, before this rule, mandatory bars 

were only applied during a full 

adjudication of the noncitizen’s 

application for asylum or withholding 

of removal, and any such decision on a 

bar was subject to review by both the 

BIA and the relevant Federal court. See 

8 CFR 1003.1(b)(3), INA sec. 242, 8 

U.S.C. 1252. Under this rule, however, 

noncitizens who receive negative 

credible fear determinations solely 

because of the applicability of a bar and 

who have those determinations affirmed 

by an immigration judge will be 

removed. However, as discussed 

elsewhere in this preamble, the 

Department considers the safeguards in 

place sufficient to ensure against 

erroneous removals, and the benefits of 

allowing DHS and EOIR resources that 

would have been expended on 

potentially years-long immigration court 

processes involving noncitizens 

pursuing relief for which they are 

ineligible to be conserved for potentially 

meritorious cases outweigh the loss to 

this small population of noncitizens of 

these additional avenues for appeal or 

review. 

As mentioned above, DHS rejects the 

suggestion in these comments that 

determinations based on mandatory bars 

are categorically more complex as a 

factual or legal matter than other issues 

routinely decided in screening 

interviews and subject to these same 

review provisions. 

Comment: Commenters stated that 

noncitizens would be denied 

protections at the border and could be 

unjustly removed; lack of transparency 

would leave no way to assess whether 

the process would lead to erroneous 

removals; and an expedited removal 

process would rush individuals through 

credible fear interviews that unfairly 

require individuals to disclose personal 

information about fear or trauma to 

officials and without the presence of an 

attorney. In line with the above remarks, 

a commenter encouraged DHS to retain 

current due process protections to 

prevent the erroneous return of people 

to countries where their lives would be 

threatened. 

Response: The Department 

acknowledges the concern relating to 

the possibility for erroneous removals 

but assesses the possibility to be rare. 

AOs are trained in asylum law and are 

well-suited to apply mandatory bars in 

the screening context in their discretion 

and, where evidence related to a 

mandatory bar is limited or unavailable, 

or analysis would be too complex to be 

fully explored in the screening context, 

to exercise their discretion not to apply 

the bar in the screening determination. 

AOs will continue to issue positive fear 

determinations where a noncitizen 

demonstrates a credible or reasonable 

fear at the applicable screening 

standard, even where there may be 

indicia of a mandatory bar but the 

available evidence at the screening stage 

as to the mandatory bar or available 

exceptions or exemptions is limited. 

Retaining this discretion will safeguard 

against erroneous applications of the 

mandatory bars. In addition to 

substantive training on analyzing 

mandatory bars, AOs are trained to 

conduct non-adversarial interviews, to 

elicit testimony, and to work with 

interpreters.33 The Department also 

rejects the assertion that noncitizens 

will be unfairly required to disclose 

trauma and will not have access to 

counsel. AOs are trained to work with 

noncitizens who are experiencing the 

effects of trauma and to communicate 

across cultural and linguistic barriers.34

AOs routinely interview noncitizens 

during protection screening interviews 

involving sensitive matters that many 

may find challenging to discuss, 

including torture, sexual assault, 

familial violence, and the deaths of 

family members. Additionally, 

noncitizens in the credible and 

reasonable fear processes may be 

represented by an attorney at no cost to 

the government. 8 CFR 208.30(d)(4), 8 

CFR 208.31(c). Finally, noncitizens in 

credible fear may consult with persons 

of their choosing. 8 CFR 208.30(d)(4). 

By their nature, the application of the 

mandatory bars may result in the 

possible removal of noncitizens to 

countries where they fear harm. This is 

consistent with both domestic law and 

international standards identified in 

section II of this preamble. DHS also 

notes that nothing in the rule would 

affect protections available to 

noncitizens under regulations 

implementing U.S. obligations under 

Article 3 of the CAT. 

Comment: Commenters asserted that 

language access issues in general, and 

particularly for speakers of rare or 

indigenous languages, impede 


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35See USCIS ‘‘Language Access Plan,’’ https://

www.dhs.gov/sites/default/files/publications/ 

uscisc-updated-language-access-plan-2020.pdf (last 

visited Aug. 5, 2024). 36USCIS, Memorandum from Acting Asylum 

Division Chief Ashley Caudill-Mirillo to Asylum 

Division Staff: Language Access in Credible Fear 

Screenings (July 6, 2022), https://www.uscis.gov/ 

sites/default/files/document/memos/LanguageAccess-in-Credible-Fear-Screenings.pdf. 

37See USCIS, ‘‘RAIO Directorate—Officer 

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

‘‘RAIO Directorate—Officer Training: 

Interviewing—Eliciting Testimony’’ (Apr. 24, 2024). 

38See USCIS, ‘‘RAIO Directorate—Officer 

Training: Mandatory Bars’’ (May 9, 2013); USCIS, 

‘‘RAIO Directorate—Officer Training: Guidance for 

Adjudicating Lesbian, Gay, Bisexual, Transgender, 

and Intersex (LGBTI) Refugee and Asylum Claims’’ 

(Apr. 24, 2024); USCIS, ‘‘RAIO Directorate—Officer 

Training: Definition of Persecution and Eligibility 

Based on Past Persecution’’ (Apr. 24, 2024). 39See id. 

noncitizens’ ability to demonstrate a bar 

does not apply to them. 

Response: 8 CFR 208.30(d)(5) requires 

AOs to provide for the assistance of an 

interpreter in credible fear interviews 

where the noncitizen is unable to 

effectively proceed in English and the 

AO is unable to proceed competently in 

a language the noncitizen speaks and 

understands. 8 CFR 208.31(c) imposes 

the same requirement for reasonable fear 

interviews. Furthermore, USCIS has 

developed a language access plan to 

ensure that limited English proficient 

individuals have meaningful access to 

the agency’s services and information.35

USCIS has also issued guidance to AOs 

on providing language access in credible 

fear interviews.36 This guidance 

provides for situations where the AO is 

unable to communicate with the 

noncitizen because their preferred 

language is not serviced by an asylum 

interpreter contract and, if applicable, 

the noncitizen does not agree to proceed 

with the credible fear interview in 

another language for which the AO 

confirms understanding. In such a 

situation, the Asylum Office issues a 

Form I–862, Notice to Appear (NTA), 

and refers the noncitizen to removal 

proceedings without making a credible 

fear determination in such situations. 

DHS is confident these measures are 

sufficient to ensure limited English 

proficient noncitizens, including 

speakers of rare and indigenous 

languages, are able to effectively 

understand the screening process and 

participate in credible fear and 

reasonable interviews, including 

addressing the applicability of any bars. 

Furthermore, DHS notes that limitations 

in communicating in English or with an 

interpreter in a language other than the 

noncitizen’s preferred language would 

weigh against an AO exercising 

discretion to consider the bars, since 

they could limit testimony and impede 

efficiency. 

c. Impacts on Specific Vulnerable 

Populations 

Comment: Some commenters 

expressed opposition to the proposed 

rule, stating that it would increase the 

odds that people would have to return 

to countries where their political beliefs, 

sexual orientation or gender identity are 

under threat. A commenter urged the 

Department to not make the process 

more difficult for women who are 

fleeing from the abuse of a partner. 

Another commenter said that the 

proposed rule could make it more 

difficult for those seeking to flee 

authoritarian governments and 

countries where they face 

marginalization and persecution. A 

commenter stated that their clients 

include indigent, black, brown, 

indigenous, and LGBTQI+ (lesbian, gay, 

bisexual, transgender, queer, and 

intersex) noncitizens who often have no 

other avenue to seek safety than to come 

to the United States. The commenter 

stated that the rule depends on the 

discretion of AOs to decide when to 

apply mandatory bars to asylum 

eligibility during screenings, which 

would disproportionately penalize some 

noncitizens based on their race, 

nationality, religion, LGBTQI+ identity, 

or disability status because those who 

have been criminalized for these 

statuses could be barred from asylum. 

Response: The Department disagrees 

with the commenters’ claims regarding 

the Final Rule’s impact on particularly 

vulnerable individuals. Under this rule, 

AOs will have the flexibility in 

screenings to apply mandatory bars that 

relate to an individual’s participation in 

the persecution of others, or national 

security, criminal, or other public safety 

concerns. The Department does not 

believe that this rule would penalize 

any of the vulnerable populations 

commenters identified. AOs are trained 

to elicit testimony in a non-adversarial 

and sensitive manner and to work with 

vulnerable populations.37 AOs are also 

trained to apply the mandatory bars and 

analyze available evidence, including 

the circumstances surrounding arrests 

and criminal records outside the United 

States, which may, in certain instances, 

demonstrate a pretextual or 

discriminatory intent by a foreign 

government.38 Indeed, AOs regularly 

analyze mandatory bars, including 

criminal bars, in asylum adjudications 

and are experienced in evaluating 

context related to arrests, criminal 

charges, and foreign convictions, which, 

in some circumstances, may be evidence 

that an individual has suffered 

persecution, rather than evidence of a 

mandatory bar.39 Accordingly, 

considering the training and experience 

AOs possess, they are well-suited to 

apply mandatory bars in the screening 

context in their discretion and, where 

evidence related to a mandatory bar is 

too limited or unavailable, or the 

analysis of the bar would be too 

complex to be fully explored in the 

screening context, to exercise their 

discretion not to apply the bar in the 

screening determination. 

AOs will continue to issue positive 

fear determinations where a noncitizen 

demonstrates a credible or reasonable 

fear at the applicable screening 

standard, even where there may be 

indicia of a mandatory bar but the 

available evidence at the screening stage 

as to the bar or available exceptions or 

exemptions is limited. By preserving 

AO discretion in the application of the 

mandatory bars, the rule will protect 

vulnerable noncitizens who may have 

complicated evidentiary and legal issues 

involving a mandatory bar. 

d. Other/General Negative Impacts on 

Noncitizens and Their Support Systems 

Comment: Many commenters 

expressed concerns about the hardships 

noncitizens face in their home 

countries, on the journey to the United 

States, and throughout the immigration 

process. A commenter stated that the 

proposed rule does not serve long-term 

migrants who are waiting on a 

resolution for their cases, or new 

migrants who deserve to be treated with 

fairness. A commenter believes that the 

number of migrants attempting to enter 

the United States is the ‘‘result of global 

political and climate crises,’’ and that 

solutions should be targeted towards 

those issues. Further, the commenter 

stated that the proposed rule would 

increase the suffering of noncitizens, 

while not addressing the underlying 

problems that drive migration. Another 

commenter discussed the need to ensure 

that noncitizens with similar claims 

would not experience different 

outcomes based on the constraints of 

government resources. A nonprofit 

organization opposed the rule because it 

would impose additional burdens on 

their resources. Finally, several 

commenters expressed the importance 

of access to asylum for vulnerable 

noncitizens. 

Response: The Department 

acknowledges the commenters’ 

concerns for noncitizens who may be 

fleeing harm in their home countries or 

otherwise face hardships. To that end, 

the U.S. government has implemented, 


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40U.S. Dep’t of State, Safe Mobility Initiative, 

https://www.state.gov/refugeeadmissions/safemobility-initiative (last visited Aug. 23, 2024); The 

White House, Fact Sheet: Biden-Harris 

Administration on World Refugee Day Celebrates a 

Rebuilt U.S. Refugee Admissions Program, June 20, 

2024, https://www.whitehouse.gov/briefing-room/ 

statements-releases/2024/06/20/fact-sheet-bidenharris-administration-on-world-refugee-daycelebrates-a-rebuilt-u-s-refugee-admissionsprogram/ (last visited Aug. 29, 2024). 

41See U.S. Citizenship and Immigration Services, 

Processes for Cubans, Haitians, Nicaraguans, and 

Venezuelans, https://www.uscis.gov/CHNV (last 

visited Sept. 25, 2024). 

42See U.S. Citizenship and Immigration Services, 

Family Reunification Parole Processes, https://

www.uscis.gov/FRP (last visited Aug. 23, 2024). 

43 88 FR 80394 (Nov. 17, 2023). 

44See Memorandum on Presidential 

Determination on Refugee Admission for Fiscal 

Year 2024, Presidential Determination No. 2023–13 

(Sept. 29, 2023) (providing for the admission of 

35,000–50,000 refugees from the Latin America/ 

Caribbean region to the United States during Fiscal 

Year (FY) 2024); Memorandum on Presidential 

Determination on Refugee Admission for Fiscal 

Year 2025, Presidential Determination No. 2024–13 

(Sept. 30, 2024) (providing for the admission of 

35,000–50,000 refugees from the Latin America/ 

Caribbean region to the United States during FY 

2025). 

45See CBP, ‘‘CBP OneTM Mobile Application,’’ 

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

cbpone (last visited Aug. 14, 2024). 

46Nat’l Sec. Council, U.S. Strategy for Addressing 

the Root Causes of Migration in Central America at 

4 (July 2021), https://www.whitehouse.gov/wpcontent/uploads/2021/07/Root-Causes-Strategy.pdf. 

47The White House, Fact Sheet: Update on the 

U.S. Strategy for Addressing the Root Causes of 

Migration in Central America (Mar. 25, 2024), 

https://www.whitehouse.gov/briefing-room/ 

statements-releases/2024/03/25/fact-sheet-updateon-the-u-s-strategy-for-addressing-the-root-causesof-migration-in-central-america-3/. 

48 Id. 

a number of measures designed to 

enhance and expand lawful pathways 

and processes for noncitizens seeking to 

enter the United States, including to 

seek asylum or other protection. 

Examples of lawful pathways include: 

the Uniting for Ukraine process, which 

allows Ukrainian nationals to receive 

humanitarian parole into the United 

States, enabling them to travel by air to 

the United States; the Safe Mobility 

initiative; 40 the new CHNV processes; 41

and country-specific family 

reunification parole processes.42 DHS 

and its interagency partners have also 

increased H–2B nonimmigrant visa 

availability 43 and refugee processing for 

Western Hemisphere countries.44

Noncitizens who are not eligible for 

these pathways can schedule an 

appointment to present themselves at a 

southwest land border port of entry 

through the CBP One app.45 The 

Department agrees with the comment 

that we must address the underlying 

drivers of migration. For example, the 

U.S. Strategy for Addressing the Root 

Causes of Migration in Central America, 

directed by the President in Executive 

Order 14010, 86 FR 8267 (Feb. 5, 2021), 

focuses on a coordinated, place-based 

approach to improve the underlying 

causes that push Central Americans to 

migrate, and it takes into account, as 

appropriate, the views of bilateral, 

multilateral, and private sector partners, 

as well as civil society.46 The strategy 

includes addressing economic, 

governance, and security challenges 

through five pillars: (1) addressing 

economic insecurity and inequality; (2) 

combating corruption and strengthening 

democratic governance; (3) promoting 

human rights and labor rights; (4) 

countering and preventing violence; and 

(5) combating sexual and gender-based 

violence.47 In March 2024, the White 

House announced that the 

Administration is on track to meet its 

commitment in the root causes strategy 

to provide $4 billion to the region over 

four years.48

The Department disagrees with the 

comment that the rule will increase 

suffering of noncitizens and negatively 

impact both new and long-term 

noncitizens waiting on case resolutions. 

Instead, the Department believes the 

rule will increase efficiencies for 

noncitizens and decrease the time 

noncitizens must wait for a final 

decision on their protection claim, 

including those who may be in 

detention. Noncitizens who are subject 

to a bar but would nevertheless receive 

a positive fear determination absent this 

rule may, under this rule, be more 

swiftly removed instead of being 

detained throughout their removal 

proceedings, and therefore spend less 

time in detention. The Department is 

committed to conducting screening 

interviews with fairness, and AOs are 

trained to review each case on its own 

merits, even when there are similarities 

between claims. 

DHS acknowledges the comment 

regarding burden on nonprofit resources 

and has included a description of 

impacts of the Final Rule in Section 

V.B. of this preamble. This rule does not 

directly regulate any organizations, and 

consistent with longstanding case law, a 

regulatory flexibility analysis is not 

required when a rule has only indirect 

effects on small entities, rather than 

directly regulating those entities. See, 

e.g., Mid-Tex Elec. Co-op., Inc. v. FERC, 

773 F.2d 327, 342–43 (D.C. Cir. 1985). 

e. Negative or Minimal Impacts on 

Immigration System and Government 

Operations and Resources 

Comment: Many commenters 

expressed concerns that considering 

mandatory bars during the fear 

screening stage would introduce 

complexities, inconsistencies, and 

inefficiencies in the fear screening 

process, and the asylum system needs 

fair and comprehensive reform. One 

commenter stated that the proposed rule 

would make the asylum process more 

complicated for noncitizens and AOs, 

while also putting noncitizens in 

danger. One commenter expressed 

concerns that applying bars during fear 

interviews could slow down the fear 

screening process and become arduous 

for AOs to consider. One commenter 

expressed concerns that AOs may not be 

able to make these decisions with 

clarity, empathy, or fairness, while also 

potentially causing officers 

psychological distress. 

In line with the above remarks, a 

commenter stated that the proposed rule 

would not increase efficiency because a 

small number of people would be 

impacted, and that given this small 

numeric impact, the Department should 

weigh the adverse fairness implications 

that the proposed rule would impose on 

the few cases where the mandatory bars 

are applied. In addition, they wrote that 

AOs face pressure to make findings with 

limited resources, which would leave 

doubt that the rule would increase 

efficiency. The same commenter further 

stated that the consideration of the bars, 

a step not systematically taken in the 

credible fear process, requires extensive 

factual development and legal analysis 

that would lengthen credible fear and 

reasonable fear interviews, thereby 

undermining the purported efficiency 

goals of the proposed rule. Citing an 

interview with a representative for 

USCIS AOs, the commenter raised 

concerns with the proposed rule’s 

impact on the agency’s limited time and 

resources for conducting fear 

interviews. The commenter warned that 

if the proposed rule were finalized, the 

application of complex mandatory bars 

at the screening stage would drain more 

time and resources from already 

strained AOs. 

Response: The Department disagrees 

with the commenters’ concerns that 

consideration of the mandatory bars 

would be inefficient due to time and 

resource constraints and that AOs 

would have difficulty making decisions 

with clarity and fairness. As noted by 

commenters, the Department expects 

only a small percentage of screening 

cases to be impacted by the mandatory 

bars; therefore, the length of interviews 

would not increase across all credible 

and reasonable fear interviews. The 

Department also believes that while a 

small number of people would be 

impacted by this rule, those individuals 

would be enforcement priorities because 


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103382 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

49Memorandum from Alejandro N. Mayorkas, 

Sec’y of Homeland Security, Guidelines for the 

Enforcement of Civil Immigration Law 3–4 (Sept. 

30, 2021). 

50See Memorandum for the Record, from Ted 

Kim, Assoc. Dir., Refugee, Asylum, and Int’l 

Operations Directorate, USCIS, Re: Asylum Division 

Training, Staffing, Capacity, and Credible Fear 

Procedures (Sept. 26, 2024). 

51See, e.g., DHS, ‘‘Statement from Secretary 

Mayorkas on the Recognition of DHS Advancement 

on Partnership for Public Service List of ‘Best 

Places to Work’) (May 20, 2024) (‘‘Secretary 

Mayorkas helped to secure the first increase in 

Border Patrol staffing in over a decade with 300 

additional Agents added in Fiscal Year 2023, and 

another 1,400 added in Fiscal Year 2024.’’), https:// 

www.dhs.gov/news/2024/05/20/statementsecretary-mayorkas-recognition-dhs-advancementpartnership-public-service (last visited Aug. 15, 

2024); USCIS, ‘‘Talking Points, Asylum National 

Engagement; March 6, 2024,’’ https://

www.uscis.gov/sites/default/files/document/ 

outreach-engagements/Asylum-NationalEngagement-talking-points-3-6-24.pdf (last visited 

Aug. 15, 2024). 

52E.O. 14010, 86 FR 8267 (Feb. 5, 2021). 

53E.O. 14012, 86 FR 8277 (Feb. 5, 2021). 

54See DHS, ‘‘DHS Equity Action Plan,’’ https:// 

www.dhs.gov/publication/equity (last visited Aug. 

15, 2024). 

55See USCIS, RAIO Directorate—Officer 

Training: Credible Fear of Persecution and Torture 

Determinations (May 9, 2024); USCIS, RAIO 

Directorate—Officer Training: Reasonable Fear of 

Persecution and Torture Determinations (Feb. 13, 

2017); see also Credible Fear Procedures Manual 

(CFPM), Section III.E.7; Reasonable Fear Procedures 

Manual (RFPM), Section III.F. 

of national security and public safety 

concerns.49 Safeguarding national 

security is one of the Department’s 

highest priorities, and this rule will 

allow the Department to efficiently 

identify and remove noncitizens who 

are found subject to one of the outlined 

mandatory bars without subjecting them 

to lengthy proceedings. AOs interview 

noncitizens with complex cases on a 

regular basis and are trained in 

interviewing noncitizens in credible fear 

and reasonable fear screenings, as well 

as in interviewing affirmative asylum 

applicants.50 AOs are capable of 

conducting thorough screening 

interviews, applying the mandatory bars 

when applicable, and maintaining 

fairness throughout the process, as is 

required by their roles. 

Comment: Commenters suggested that 

DHS look elsewhere to improve the 

immigration system, such as employing 

and training more immigration officers, 

or focusing on adjudicating pending 

cases in the backlog instead of imposing 

additional burdens on officers who are 

performing fear screenings. One 

commenter stated that backlogs at 

USCIS and the Executive Office for 

Immigration Review (EOIR) would make 

the successful implementation of this 

rule difficult, and it is unclear where the 

resources would come from to execute 

the proposed rule fairly. A few other 

commenters stated that resources 

should be spent creating accessible 

pathways to citizenship and policies 

that reduce poverty and violence in the 

countries from which noncitizens are 

fleeing. 

Response: The Department continues 

to expand its workforce to meet 

different priorities and believes that 

resources can be, and are being, 

allocated to both reducing the backlog 

and increasing efficiencies in the 

credible and reasonable fear 

processes.51 While the Department 

appreciates the resource allocation 

suggestions made by some commenters 

and would direct those commenters to 

E.O. 14010,52 which aims to address 

root causes of migration and create a 

strategy for managing migration, and 

E.O. 14012,53 which aims to identify 

and eliminate barriers to immigration 

access and improve the naturalization 

process, the Department also notes that 

these suggestions are outside the scope 

of this rule. Finally, the comment 

suggesting increased immigration judge 

hiring and training is outside the scope 

of this rule. 

Comment: Several commenters 

expressed concern that the proposed 

rule could exacerbate the existing 

inequities in asylum processing, which 

they stated served neither noncitizens 

nor the U.S. government’s need to 

manage the border. One commenter 

stated that the mandatory bars are very 

complex and that in a screening 

interview where the noncitizen is 

unlikely to have legal representation, 

applying those bars will lead to 

inconsistent and erroneous outcomes. 

Commenters indicated the rule leaves 

excessive discretion to AOs to 

determine whether to consider bars to 

asylum and withholding of removal in 

credible fear and reasonable fear 

screenings, which would lead to 

inconsistent results and undermine the 

efficiency of screenings. Commenters 

predicted the discretion the rule accords 

to AOs to consider bars in fear 

screenings will lead to discrimination 

and inequity, including profiling on the 

basis of race, religion, or nationality. 

Response: The Department disagrees 

with the comment that the rule will 

exacerbate inequities in the asylum 

system and does not serve border 

management needs. The commenters 

did not explain what they were referring 

to as existing inequities in asylum 

processing. The Department has 

outlined its commitment to increase 

access and equity in the immigration 

process in the DHS Equity Action 

Plan.54 The Department also disagrees 

that the rule does not serve noncitizens 

or the U.S. government’s border 

management needs. The rule will allow 

DHS to quickly screen out certain nonmeritorious claims and remove those 

noncitizens who pose a national 

security or public safety threat more 

expeditiously. This serves both 

government and noncitizen needs, as it 

safeguards national security while 

allowing the Department to use 

resources more efficiently. Applying the 

mandatory bars earlier in the process 

means that the Department can more 

effectively use its resources to 

adjudicate other cases in a more 

expedient manner. 

The Department disagrees that 

application of the mandatory bars 

during the screening process will lead to 

erroneous and inconsistent decisions. 

AOs are trained to analyze and apply 

the mandatory bars in affirmative 

asylum cases; therefore, they are wellsuited to exercise discretion to apply 

mandatory bars in the screening context. 

If evidence related to a mandatory bar 

is too complex to be fully explored in 

the screening context, the rule will 

allow AOs to exercise their discretion 

not to apply the bar in the screening 

determination. In those cases, AOs will 

continue to issue positive fear 

determinations where a noncitizen 

demonstrates a credible or reasonable 

fear at the applicable screening 

standard, even where there may be 

indicia of a mandatory bar but the 

available evidence at the screening stage 

as to the bar or any available exception 

or exemption is limited. 

DHS disagrees that providing 

discretion to AOs to consider bars in 

fear screenings will lead to inconsistent 

or inequitable results. AOs already 

receive standardized training on how to 

apply the bars to asylum in full 

adjudications. The five bars to statutory 

withholding of removal that could be 

considered under this rule generally 

correspond to five of the six mandatory 

bars to asylum. See INA secs. 

208(b)(2)(A)(i)–(v), 241(b)(3)(B)(i)–(iv) 

and (b)(3)(B), 8 U.S.C. 1158(b)(2)(A)(i)– 

(v), 1231(b)(2)(B)(i)–(iv) and (b)(3)(B). 

Therefore, AOs understand the types of 

evidence that would indicate the 

potential applicability of these bars to 

both forms of relief. AOs are also 

trained, in cases where there is evidence 

a bar may apply, to note the possible 

applicability of the bar in the credible 

fear or reasonable fear determination.55

Such training helps to ensure consistent 

application of AO discretion in 

determining whether to consider bars in 

fear screenings. 

DHS also disagrees that providing 

AOs discretion to consider bars will 


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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103383 

56See 42 U.S.C. 1983; see also USCIS, ‘‘USCIS 

Policy Manual,’’ Vol. 1, Part A, Ch.9, Section (D)(1), 

https://www.uscis.gov/policy-manual. 

57See USCIS, ‘‘RAIO Directorate—Training 

Module: Decision Making’’ (Apr. 4, 2024). 

58See USCIS, RAIO Directorate—Officer 

Training: Interviewing—Introduction to the NonAdversarial Interview (Apr. 24, 2024) and USCIS, 

RAIO Directorate—Training Module: Core Values 

and Guiding Principles for RAIO Employees (Apr. 

24, 2024). 

undermine the efficiency of screenings. 

It is precisely this concern for efficiency 

that, in part, motivates the Department’s 

decision not to require AOs to consider 

bars in every screening conducted, but 

rather permit them to do so in those 

cases where there is easily verifiable 

evidence available to the AO that, in 

their discretion, warrants an inquiry 

into a bar, and the AO can consider that 

bar efficiently. 

DHS further disagrees that providing 

AOs this discretion will lead to 

discrimination and profiling on the 

basis of race, religion, or nationality. 

Such discrimination is not only 

unlawful and against USCIS policy,56

but contrary to the fundamental purpose 

of fear screenings, which exist to ensure 

the United States does not return 

eligible noncitizens to torture or to 

persecution on account of race, religion, 

nationality, membership in a particular 

social group, or political opinion. 

Furthermore, AOs are trained to be 

neutral decisionmakers,57 to conduct 

interviews in a non-adversarial manner, 

to not let personal biases interfere with 

their work, and to treat each individual 

who appears before them with courtesy, 

professionalism, and respect.58

Comment: One commenter opposed 

the rule for doing too little to address 

the high level of border crossings, and 

address the asylum and immigration 

court pending caseload, describing it as 

too narrow in scope and containing 

numerous loopholes that would do little 

to stem what they described as the tide 

of asylum fraud that plagues the system. 

Response: The rule is not intended to 

address high levels of border crossings, 

or primarily, to address backlogs in the 

immigration system. Neither is it 

intended to address fraud in the asylum 

system. While the Department does 

expect the rule to conserve some 

government resources that may be used 

on other cases, it does not expect that 

the rule will substantially decrease the 

pending caseload at the immigration 

courts or at USCIS. 

f. Negative Impacts on the U.S. 

Economy and Workforce, U.S. Citizens, 

Public Health and Safety 

Comment: Several commenters 

expressed opposition to the proposed 

rule, stating that it would raise 

additional barriers to gaining asylum 

during a time when noncitizens could 

help strengthen the United States and 

increase government tax revenue. A 

commenter noted that immigrants help 

the economy. Another commenter 

added that there could be concerns with 

accommodating large numbers of 

noncitizens, but the pros outweigh the 

cons. Several commenters stated that 

the U.S. population and workforce is 

projected to decline, so the United 

States should be accepting noncitizens 

to help fill gaps in the workforce. Some 

commenters stated that noncitizens are 

often eager to rebuild their lives and 

contribute to their communities. Other 

commenters noted that noncitizens are 

resourceful, which is why we should 

welcome them. A commenter stated that 

because of the many hazards that 

noncitizens have faced, they will 

become strong model citizens. 

Response: The Department agrees that 

immigrants contribute significantly to 

the U.S. economy and workforce. This 

rule does not curtail access to the 

immigration system for individuals who 

are eligible for protection or relief from 

removal. By allowing AOs to apply 

certain mandatory bars in screenings, 

the Department is working to ensure 

that individuals who will not ultimately 

be eligible for protection or relief from 

removal are not unnecessarily 

consuming U.S. Government resources 

during their pursuit of non-meritorious 

protection claims. 

g. Other Opposition to the Rule 

Comment: Several commenters 

remarked that this is the incorrect 

approach to dealing with the asylum 

system. Further, a commenter said that 

the current immigration policy is costly 

and traumatizing, especially to those 

who are vulnerable. Another commenter 

remarked that those seeking asylum 

should not be criminalized, since 

noncitizens seeking asylum are fleeing 

oppressive environments. A commenter 

urged the Department to withdraw the 

proposed rule in its entirety to instead 

adopt humane solutions to the 

humanitarian and operational 

challenges at the border. They offered 

several alternatives, such as increasing 

capacity at ports of entry; engaging civil 

society entities to provide respite 

services; improving communication and 

cooperation between civil society, State 

and local governments, and Federal 

agencies; ending detention and 

monitoring of asylum seekers; and 

providing legal representation and 

social services to asylum seekers. A few 

commenters expressed disappointment 

towards the Biden administration 

because of the restrictiveness of the 

proposed rule. 

Response: The Department disagrees 

with the commenters’ claims and 

declines to adopt their suggestions, 

which are beyond the scope of this 

rulemaking in any event. With this rule, 

the Department is considering the 

application of mandatory bars at an 

earlier stage in the process. Concerning 

legal representation, the Department 

notes that during the credible and 

reasonable fear processes, noncitizens 

may be represented by an attorney at no 

cost to the government. Additionally, 

noncitizens in credible fear may consult 

with persons of their choosing. 8 CFR 

208.30(d)(4). Noncitizens who are 

referred to USCIS for a credible fear or 

reasonable fear interview are provided 

with an information sheet related to the 

applicable screening interview process 

(e.g., M–444, Information About 

Credible Fear Interview; M–488, 

Information About Reasonable Fear 

Interview; Information About Credible 

Fear Interview Sheet (for credible fear 

cases referred to USCIS under the 

Securing the Border rule)), in addition 

to a list of free or low-cost legal service 

providers. Certain suggestions, 

including those to increase processing 

capacity at ports of entry, strengthening 

communication and cooperation 

between civil society, State and local 

governments, and Federal agencies, 

ending the detention and monitoring of 

asylum seekers, and providing legal and 

social services to newly arrived asylum 

seekers, are outside the scope of this 

rule. 

Comment: One commenter opposed 

the proposed rule stating that a future 

‘‘more overtly hostile anti-immigrant 

administration’’ could abuse the 

discretion that the rule allows AOs, 

such as if a future administration sought 

to expand the use of expedited removal 

across the country. 

Response: The Department 

emphasizes that the NPRM and this rule 

allow AOs to exercise discretion to 

consider a mandatory bar during a fear 

screening interview. The discretion the 

rule provides is not unbounded. AOs 

should only expend resources 

considering mandatory bars where there 

is easily verifiable evidence that a bar 

may apply and where they determine 

that they can address the issue 

efficiently in the context of a screening 

interview. 

Under section 235(b)(1) of the INA, 8 

U.S.C. 1225(b)(1), DHS may remove 

certain noncitizens without a hearing 

before an immigration judge through 

expedited removal proceedings. The 

INA also grants the Secretary authority 

to apply expedited removal procedures 


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59See 65 FR 76121, 76129 (Dec. 6, 2000) 

(‘‘Asylum Procedures’’) (codifying the statement in 

8 CFR 208.30 that a noncitizen who appears to be 

subject to one or more of the mandatory bars would 

nevertheless be referred to section 240 removal 

proceedings for full consideration of their claim and 

explaining that this change was done in response 

to comments suggesting such a referral ‘‘regardless 

of any apparent statutory ineligibility under section 

208(a)(2) or 208(b)(2)(A) of the Act’’). 

60UNHCR, ‘‘Guidelines on International 

Protection No. 5, Application of the Exclusion 

Clauses: Article 1F of the 1951 Convention relating 

of the Status of Refugees’’ (Sept. 4, 2003), https:// 

www.unhcr.org/us/media/guidelines-internationalprotection-no-5-application-exclusion-clausesarticle-1f-1951. 

(by designation) to ‘‘any or all’’ 

noncitizens referred to in the statute as 

‘‘certain other aliens.’’ INA 

235(b)(1)(A)(iii)(I), 8 U.S.C. 

1225(b)(1)(A)(iii)(I). A noncitizen is 

within the class of ‘‘certain other aliens’’ 

if the noncitizen ‘‘has not been admitted 

or paroled into the United States, and 

. . . has not affirmatively shown, to the 

satisfaction of an immigration officer, 

that the alien has been physically 

present in the United States 

continuously for the 2-year period 

immediately prior to the date of the 

determination of inadmissibility.’’ INA 

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

1225(b)(1)(A)(iii)(II). Such designation 

‘‘shall be in the sole and unreviewable 

discretion’’ of the Secretary and ‘‘may 

be modified at any time.’’ INA 

235(b)(1)(A)(iii)(I), 8 U.S.C. 

1225(b)(1)(A)(iii)(I); 8 CFR 

235.3(b)(1)(ii). 

In case of a hypothetical future policy 

choice to expand the use of expedited 

removal to additional contexts, DHS 

emphasizes that noncitizens found 

under this rule to lack a credible fear or 

reasonable fear of persecution due to the 

application of a mandatory bar would 

ultimately be ineligible for the 

underlying relief in a merits hearing if 

they were instead placed into 

immigration court proceedings directly 

through service of a Notice to Appear. 

Moreover, the concerns about future 

administrations abusing their discretion 

by, for example, expanding expedited 

removal’s use across the country, are 

misplaced. The application of expedited 

removal is not geographically limited by 

statute. See INA 235(b)(1), 8 U.S.C. 

1225(b)(1). Currently, the regulations 

implementing expedited removal allow 

for its use if a noncitizen has failed to 

establish they have been continuously 

present in the United States for at least 

two years prior to their date of 

inadmissibility, but there is no limit as 

to its nationwide use. 8 CFR 235.3(b)(ii). 

Comment: One commenter faulted the 

proposed rule for allegedly seeking to 

deter asylum seekers from entering the 

United States. 

Response: DHS rejects this 

characterization. The rule is not 

designed to deter noncitizens from 

seeking asylum. The rule simply is 

intended to provide flexibility to AOs to 

apply the covered mandatory bars 

where there is easily verifiable evidence 

so that, when possible, noncitizens who 

would otherwise ultimately be found 

ineligible for relief or protection after a 

lengthy immigration process may 

instead have their cases handled more 

efficiently. In addition, this flexibility 

allows DHS to more expeditiously 

remove some noncitizens who pose a 

threat to the safety or security of the 

United States. As noted above, DHS has 

established numerous new pathways to 

facilitate the lawful entry of noncitizens 

into the United States, which enables 

noncitizens to more easily seek asylum 

or other immigration benefits in 

appropriate cases. 

Comment: One commenter criticized 

the rule as a reinstatement of the 

‘‘Asylum Ban’’ and characterized it as 

going against President Biden’s 

campaign promises. 

Response: This rule is not equivalent 

to an ‘‘asylum’’ ban or any other sort of 

categorical ban. As discussed elsewhere 

in this preamble, this rule is intended to 

simply provide AOs with the 

discretionary authority to consider 

certain statutory bars to asylum and 

withholding of removal during fear 

screenings when doing so could 

increase efficiency. Individuals subject 

to these bars are already ineligible for 

asylum or withholding of removal as 

relevant, but, without the rule, the bars 

are only fully applied at a later stage in 

a noncitizen’s immigration proceedings. 

C. Legal Authority and Background 

1. DHS Legal Authority 

Comment: Many commenters asserted 

that the proposed rule is in 

contravention of international and 

domestic law regarding refugee 

protection and non-refoulement. In 

support of this assertion, several 

commenters cited the 2003 Office of the 

U.N. High Commissioner for Refugees 

(UNHCR) Guidelines, which direct that 

exclusion clauses only be considered 

during regular refugee determinations 

proceedings and not during expedited 

proceedings. A commenter stated that 

the proposed provisions in the rule will 

create barriers to asylum and 

withholding of removal for asylum 

seekers and violates the 1967 Protocol 

Relating to the Status of Refugees. 

Response: DHS disagrees with the 

assertion that the proposed rule is in 

contravention of applicable law. The 

INA provides mandatory bars to 

applying for asylum at section 208(a)(2) 

of the INA, 8 U.S.C. 1158(a)(2); to 

asylum eligibility at section 208(b)(2)(A) 

of the INA, 8 U.S.C. 1158(b)(2)(A); and 

to eligibility for withholding of removal 

at section 241(b)(3)(B) of the INA, 8 

U.S.C. 1231(b)(3)(B) (referred to 

collectively as ‘‘mandatory bars’’). 

Further, as explained above, Congress 

has conferred upon the Secretary 

express rulemaking power to create 

certain procedures for screening for and 

adjudicating asylum claims. INA sec. 

103(a)(1), (a)(3), 8 U.S.C. 1103(a)(1), 

(a)(3); INA sec. 208(b)(1)(A), (b)(2)(C), 

(d)(5)(B), 8 U.S.C. 1158(b)(1)(A), 

(b)(2)(C), (d)(5)(B); INA sec. 235(b)(1), 8 

U.S.C. 1225(b)(1). 

There are no bars to deferral of 

removal under the regulations 

implementing U.S. obligations under 

Article 3 of the CAT. Prior to being 

granted asylum or statutory withholding 

of removal in the United States, 

noncitizens are required to show that 

the mandatory bars do not apply to 

them. 

The relevant statutory provisions are 

silent as to the consideration of the 

mandatory bars during screening 

interviews. All relevant domestic legal 

provisions on this topic have taken the 

form of regulatory action. The former 

Immigration and Naturalization Service 

issued a rule in 2000 precluding, in 

response to comments, consideration of 

the asylum bars at the credible fear 

stage.59 Additional regulatory action on 

this subject was taken in 2020 and 2022. 

See 85 FR 80274, 80278 (Dec. 11, 2020) 

(‘‘Global Asylum Rule’’); 87 FR at 

18221–22. In none of these actions that 

precluded consideration of bars has the 

government concluded that considering 

mandatory bars at the screening stage 

would violate statutory provisions or 

other legal requirements. Instead, the 

basis of these rules, when it has been 

articulated, has focused primarily on 

efficiency of eliciting testimony related 

to and analyzing the mandatory bars at 

the screening stage. See 87 FR 18078, 

18093 (Mar. 29, 2022). This rule is based 

on a judgment by DHS that, under 

certain limited circumstances, the 

consideration of the mandatory bars at 

the screening stage represents an 

appropriate expenditure of resources. 

DHS notes that while international 

guidelines represent helpful 

interpretative guidance, they are not 

binding authority on DHS. As such, the 

2003 UNHCR guidance 60 does not carry 

the force of law. The guidance raised by 

the commenters states that 

it is essential that rigorous procedural 

safeguards are built into the exclusion 

determination procedures. Exclusion 

decisions should in principle be dealt with 


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61 Id. 

62USCIS ‘‘Credible Fear Procedures Manual,’’ 

Section III.I, https://www.uscis.gov/sites/default/ 

files/document/guides/CredibleFearProcedures

Manual.pdf; USCIS, ‘‘Reasonable Fear Procedures 

Manual,’’ Section III.F.3, https://www.uscis.gov/ 

sites/default/files/document/guides/Reasonable

FearProceduresManual.pdf. 

63 8 CFR 208.30(g) and 208.31(g). 

64See also 87 FR at 18135 (‘‘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’’). 

in the context of the regular refugee status 

determination procedure and not in either 

admissibility or accelerated procedures, so 

that a full factual and legal assessment of the 

case can be made.61

We note that the guidance speaks 

generally (‘‘in principle’’) and is not a 

categorical prohibition against 

considering exclusion provisions in a 

screening interview. DHS screening 

procedures do contain ‘‘rigorous 

procedural safeguards,’’ including 100% 

supervisory review of all decisions 62

and the right to review of any negative 

decision by an immigration judge.63

Additionally, noncitizens in screening 

interviews have the right to consult with 

an individual of their choosing, 

including counsel, at no cost to the 

government, the right to have a 

consultant or counsel attend the 

interview, the right to provide evidence 

in their native language or a language 

that they are comfortable with, and the 

right to a non-adversarial interview with 

an AO. 8 CFR 208.30(d); 208.31(c). 

Furthermore, the rule instructs that 

the AO should only consider any 

possible mandatory bar when the 

noncitizen does not establish a fear of 

torture and when there is easily 

verifiable evidence indicating that the 

noncitizen could be subject to a 

mandatory bar and, where the 

noncitizen is unable to establish at the 

relevant standard that the bar would not 

apply. As the standards of proof for 

screening interviews are lower than 

those applicable at the merits stage, the 

AO would only enter a negative fear 

determination if the noncitizen were 

unable to demonstrate at the applicable 

screening standard that a mandatory bar 

does not apply. Furthermore, if there are 

significant factual or legal issues that 

would necessitate further development 

at a later stage, AOs may exercise 

discretion to not apply the mandatory 

bar at the screening stage. 

DHS disagrees that the rule will create 

barriers to asylum and withholding of 

removal for noncitizens with potentially 

meritorious claims. In the current fear 

screening process, AOs already identify 

possible mandatory bars. The rule 

simply permits an AO to apply the bars 

at the screening stage when there is 

evidence that a bar may apply, the AO 

determines that the bar can be 

addressed efficiently at the interview, 

and the noncitizen is unable to 

demonstrate at the applicable standard 

of proof that the bar does not apply or 

that the noncitizen qualifies for an 

exception or exemption to the bar. 

Further, any noncitizen who is subject 

to one of the mandatory bars that that 

this rule permits AOs to consider at the 

screening stage would already be 

ineligible for asylum or withholding of 

removal, as relevant. 

Comment: Several commenters stated 

that DHS lacks the statutory authority to 

enact the proposed rule as the expedited 

removal statute does not mention 

mandatory bars to asylum and instructs 

the agency to find a credible fear 

whenever an asylum seeker 

demonstrates a ‘‘significant possibility’’ 

that they ‘‘could’’ be eligible for asylum. 

Response: DHS disagrees with the 

assertion that it lacks the authority to 

enact the proposed rule. The legal 

authorities for this rule are described in 

section II of this preamble. 

As mentioned earlier, the 

consideration of mandatory bars in 

screening interviews has been the 

subject of several prior rulemaking 

actions. Under INA sec. 235(b)(1)(B)(v), 

8 U.S.C. 1225(b)(1)(B)(v), the term 

‘‘credible fear of persecution’’ means 

that there is 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] 

could establish eligibility for asylum 

under’’ INA sec. 208, 8 U.S.C. 1158. 

Section 208(b)(2)(A)(i)–(vi) of the INA 

contains the mandatory bars to asylum 

and states that the eligibility conditions 

for granting asylum at section 208(b)(1) 

of the INA, 8 U.S.C. 1158(b)(1), ‘‘shall 

not apply’’ to a noncitizen if one of the 

mandatory bars is determined to apply. 

As such, if the noncitizen is subject to 

one of the mandatory bars, they are not 

eligible for asylum. It follows that when 

considering whether a noncitizen has a 

significant possibility of establishing 

eligibility for asylum, an AO may 

consider factors that would render the 

noncitizen ineligible for asylum. 

Comment: Many commenters stated 

that consideration of the mandatory bars 

at the screening stage is inconsistent 

with congressional intent that the 

‘‘significant possibility’’ standard be a 

low threshold to avoid the risk that 

people would erroneously be screened 

out and remarked that making decisions 

on mandatory bars is too complex to be 

done fairly under the circumstances 

during screening interviews. 

Response: Nothing in this rule 

modifies the standard of proof for any 

of the screening interviews that would 

be affected by the rule. DHS believes 

that the rule is consistent with Congress’ 

intent for expedited removal 

proceedings. In the Asylum Processing 

NPRM, DHS and DOJ explained that 

Congress created a ‘‘low screening 

standard’’ for expedited removal 

proceedings and stated that it may be 

inconsistent with Congress’ intent for 

the Departments to ‘‘creat[e] a 

complicated screening process that 

requires full evidence gathering and 

determinations to be made on possible 

bars to eligibility.’’ 86 FR 46906, 46914 

(Aug. 20, 2021).64 This rule, however, 

does not create any such process 

because AOs have the discretion, but are 

not required, to consider a mandatory 

bar in those cases where there is easily 

verifiable evidence that a bar may apply. 

If the AO determines that they can 

consider that bar efficiently at the 

screening stage, the AO could then, in 

their discretion, make a further inquiry 

into the mandatory bar. DHS does not 

believe Congress’ intent that the 

expedited removal process be swift 

requires reading the statute to forbid the 

application of mandatory bars during 

fear screenings in all cases, particularly 

where, as here, DHS will apply those 

bars in a manner that would not 

increase the length of the expedited 

removal process except in those cases in 

which there is evidence indicating that 

a mandatory bar may apply. 

Accordingly, this rule is consistent with 

Congress’s intent for expedited removal 

proceedings and DHS and DOJ’s prior 

statements regarding that intent. 

DHS rejects the assertion that the 

mandatory bars present issues that are 

inherently more complex than other 

issues that are regularly considered in 

screening interviews. While the 

Department acknowledges that certain 

issues in the consideration of mandatory 

bars can present complex factual and 

legal issues, it also believes that other 

issues routinely considered by AOs as 

part of a credible fear or reasonable fear 

determination, including, for example, 

the viability of certain particular social 

groups, whether certain types of harm 

rise to the level of persecution, complex 

issues surrounding the motivation of the 

persecutor, whether the noncitizen has 

provided credible testimony, and 

whether certain types of feared harm 

would constitute torture if carried out, 

also involve complex legal and factual 

determinations. 


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65See 87 FR 18078, 18093, 18134 (Mar. 29, 2022) 

(‘‘Asylum Processing IFR’’); 88 FR 11704, 11744 

(Feb. 23, 2023) (‘‘Lawful Pathways NPRM’’). 

66See 87 FR 18078, 18093 (Mar. 29, 2022) 

(‘‘Asylum Processing IFR’’). 

67See 86 FR 46906, 46914 (Aug. 20, 2021) 

(‘‘Asylum Processing NPRM’’); 87 FR 18078, 18094, 

18134–35 (‘‘Asylum Processing IFR’’). 

68 87 FR 18078, 18093–94, 18097 (‘‘Asylum 

Processing IFR’’). 

Furthermore, because the rule allows 

for permissive consideration of the 

mandatory bars, it is well-tailored to 

address cases that present particularly 

complex legal or factual issues. The 

NPRM explained that AOs should 

consider mandatory bars only in 

situations where there is easily 

verifiable information that the bar may 

apply, and even then, to only do so if 

the inquiry can be done efficiently. If 

applying a mandatory bar would require 

extensive legal research, or would 

require extensive fact gathering, it 

would not be appropriate for the AO to 

consider that bar as part of a 

noncitizen’s credible fear or reasonable 

fear interview under this rule. 

Comment: Several commenters stated 

that the proposed rule conflicts with the 

decision in Pangea Legal Servs. v. Dep’t 

of Homeland Sec., 512 F. Supp. 3d 966 

(N.D. Cal. 2021). Commenters noted that 

the consideration of mandatory bars 

during credible fear screening was at 

issue, and the court blocked that effort. 

Response: DHS disagrees with 

commenters on these points. First, this 

rule is distinguishable from the Global 

Asylum Rule, which was at issue in 

Pangea Legal Servs. and which required 

the mandatory consideration of bars 

during credible fear screenings. See 85 

FR 80274 (Dec. 11, 2020). This rule is 

different as it affords discretion to 

consider bars when there is easily 

verifiable evidence available but does 

not mandate their consideration in any 

particular case. Moreover, the district 

court in Pangea Legal Servs. did not 

opine on the merits of the substance of 

the Global Asylum Rule, including its 

provisions regarding the consideration 

of mandatory bars by AOs. Instead, as 

noted in the proposed rule, the Pangea 

court concluded that the plaintiffs were 

likely to succeed on the merits of their 

claim that the Global Asylum Rule ‘‘was 

done without authority of law’’ because 

the court found that the DHS official 

who approved it, then-Acting Secretary 

Chad Wolf, was not properly designated 

as Acting Secretary. 512 F. Supp. 3d at 

975. 

Comment: Several commenters 

objected to the proposed rule by 

pointing to DHS’s historical practice, 

dating back to the 2000 implementing 

regulations for expedited removal, of 

not applying mandatory bars in 

protection screenings. Many 

commenters pointed to DHS’s previous 

rejection of considering mandatory bars 

in protection screening interviews in the 

Asylum Processing IFR, where DHS 

stated that applying asylum bars in 

screenings would hurt efficiency by 

making interviews longer while also 

undermining due process rights of 

asylum seekers. Several commenters 

objected to the proposed rule as 

arbitrary, capricious, and/or an abuse of 

discretion not in accordance with the 

law due to DHS’s failure to properly 

explain its change in position from the 

2022 Asylum Processing IFR despite no 

change in circumstance or law. 

One commenter wrote that while the 

Department claims the rule is narrow 

and will impact a small number of 

people, in fact, the rule amounts to a 

significant change to asylum processing. 

The commenter further argued that that 

while DHS claims that the current 

credible fear process would remain the 

same, AOs have never been permitted to 

apply bars during the screening process 

since its creation, and accordingly, the 

rule actually significantly alters the 

expedited removal screening process 

created by Congress over 25 years ago. 

Response: DHS acknowledges its 

historical policy choice to not consider 

the mandatory bars in screening 

interviews. The Department notes that 

the practice established by the 2000 

regulations was enacted without 

substantive explanation. See Asylum 

Procedures, 65 FR at 76129 (Dec. 6, 

2000) (codifying in 8 CFR 208.30 that a 

noncitizen who appears to be subject to 

one or more of the mandatory bars 

would nevertheless be referred to 

section 240 removal proceedings for full 

consideration of their claim and 

explaining that this change was done in 

response to comments suggesting such a 

referral ‘‘regardless of any apparent 

statutory ineligibility under section 

208(a)(2) or 208(b)(2)(A) of the Act’’). 

DHS recognizes that the inclusion of 

mandatory bars in credible fear 

screenings has been a focus of several 

rules since 2020 that have made 

numerous changes in this area, as 

explained in the NPRM. The Global 

Asylum Rule instructed adjudicators for 

the first time to apply the statutory 

mandatory bars in INA secs. 

208(b)(2)(A) and 241(b)(3), 8 U.S.C. 

1158(b)(2)(A) and 1231(b)(3), during 

credible fear interviews. 85 FR at 80390. 

Subsequently, in 2022, DHS and DOJ 

rejected the consideration of all 

statutory mandatory bars during 

credible fear screenings and recodified 

the prior practice of not doing so. 87 FR 

at 18092–94, 18134–36; see also 86 FR 

at 46914–15. DHS and DOJ reasoned 

that applying the mandatory bars during 

all credible fear screening interviews 

would make those credible fear 

screenings less efficient,65 which could 

jeopardize DHS’s ability to use 

expedited removal,66 undermine 

Congress’ intent that the expedited 

removal process be swift,67 and 

undermine procedural fairness.68 The 

Departments did not, however, 

conclude that applying the mandatory 

bars would lead to these potentially 

negative repercussions in all, or even 

most, cases. See 87 FR at 18093 (stating 

that the factual and legal inquiries 

required to consider the mandatory bars 

were ‘‘in general and depending on the 

facts, most appropriately made in the 

context of a full merits interview or 

hearing’’) (emphasis added). Although 

the Departments’ policy choices in this 

area have shifted over time, all these 

choices have remained consistent with 

the Department’s longstanding statutory 

authority to manage asylum and related 

fear screenings, as discussed in Section 

II. 

DHS acknowledges that this rule 

implements a policy choice that is 

different from its position in 2022 but 

believes that this rule is not inconsistent 

with that earlier position. The 2022 rule 

rejected the consideration of the 

mandatory bars in screening interviews 

due primarily to concerns of 

inefficiency. The permissive nature of 

the current rule obviates those prior 

concerns about inefficient use of 

resources. The Department believes, just 

as it did in 2022, that the consideration 

of mandatory bars in instances where 

evidence related to a mandatory bar is 

too limited or is unavailable, or where 

the analysis of the bar would be too 

complex to be fully explored in the 

screening context, would constitute an 

inefficient use of resources. However, in 

cases where the evidence is clear, 

consideration of mandatory bars in a 

screening interview will help preserve 

the government’s resources by allowing 

decisions to be made at the earliest 

possible stage. 

DHS disagrees that the rule 

significantly changes asylum processing 

or expedited removal. As explained in 

the NPRM, under this rule, the current 

credible fear process will remain the 

same. The only aspect of the 

determination that will change is that 

the AO will have the discretion to 

consider the application of mandatory 

bars to asylum (other than firm 

resettlement) and statutory withholding 

of removal when screening the 

noncitizen for a credible fear of 

persecution or to consider the potential 


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69See 8 CFR 208.30(d) (‘‘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.’’). 

application of the mandatory bars to 

statutory withholding of removal. Also, 

as also noted in the NPRM, the 

Department has experience applying 

both the Third-Country-Transit Bar and 

the CLP presumption of ineligibility for 

asylum. See 89 FR at 41354. Further, 

since the Securing the Border IFR’s 

publication, the Department has 

experience applying the Securing the 

Border rule’s limitation on eligibility for 

asylum during the credible fear stage. 

See 8 CFR 208.35, 1208.35. Although 

these limitations on asylum eligibility 

differ from the mandatory bars that AOs 

will have discretion to consider under 

this rule, AOs’ demonstrated ability to 

apply them of asylum ineligibility in 

credible fear screenings supports the 

Department’s assessment that certain 

statutory mandatory bars that may be 

easily verifiable can be effectively 

applied in screening interviews. 

Additionally, DHS remains confident 

that the population to which this rule 

will apply is likely to be relatively 

small, as informed by the number of 

cases with bars flagged by USCIS during 

screenings conducted during FY 2020– 

FY 2024. Please refer to Section V.A.2 

and Table 4 below. Furthermore, the 

Department believes that the permissive 

nature of the rule obviates the due 

process concerns that were articulated 

in the 2022 Asylum Processing IFR. 

Under the current rule, AOs will only 

consider the mandatory bars where 

there is easily verifiable evidence that a 

mandatory bar applies, and AOs will 

retain the discretion to decline to 

consider a mandatory bar if they 

determine that the evidence is not easily 

verifiable, that they cannot efficiently 

gather sufficient information to make a 

determination on a mandatory bar, or if 

they believe that the evidence is such 

that the issue would be more fairly 

considered at a later stage. 

This rule will not require the 

expenditure of resources in most 

screening interviews. Instead, it will 

rather serve as an operational flexibility 

when the AO determines that there is 

easily verifiable information that a 

mandatory bar applies and that they can 

efficiently handle the issue in the 

context of a screening interview. Thus, 

DHS does not believe that the current 

rule is inconsistent with the central 

concerns that drove USCIS’ historical 

practice and does not represent a 

reversal of prior judgment. Instead, the 

rule will allow for consideration of 

mandatory bars in limited instances 

where applying the bar at the earliest 

possible stage would enhance public 

safety or national security and overall 

operational efficiency. 

Comment: One commenter stated that 

the proposed rule would permit ‘‘AOs to 

violate the non-refoulement mandate so 

long as an ‘indicia’ of the five bars is 

present.’’ 

Response: DHS believes this comment 

misstates the provisions of the proposed 

rule. Prior to conducting a more fulsome 

consideration of a mandatory bar, the 

AO would determine whether there is 

easily verifiable information in the 

record that the mandatory bar applies to 

the noncitizen. However, under the rule, 

before the issuance of a negative 

determination, the AO would need to 

elicit all relevant testimony to provide 

the noncitizen an opportunity to 

demonstrate the relevant likelihood that 

the bar does not apply, or that an 

exception or exemption to the bar 

applies, and determine that the 

noncitizen failed to so demonstrate at 

the appropriate standard of proof.69 In 

the credible fear context, for example, 

the evidence would need to be sufficient 

to show that there is not a significant 

possibility that the bar would not apply 

and that there is not a significant 

possibility that an exemption or an 

exception applies, including, for 

example, that the noncitizen can 

establish a reasonable possibility of 

torture. The application of this standard 

of proof is substantially different from 

AOs issuing negative screening 

determinations based on ‘‘an indicia 

[sic]’’ that one of the bars might apply. 

Further, the application of the 

statutory bars to a noncitizen’s claim 

does not violate the United States’ nonrefoulement obligations as discussed 

earlier in this section IV.C.1. 

Comment: One commenter opposed 

the proposed rule on the basis of their 

belief that current USCIS policy for 

overcoming mandatory bars requires 

that the noncitizen show by a 

preponderance of the evidence that the 

ground does not apply, if the evidence 

indicated that a ground for mandatory 

denial or referral exists. The 

commenter’s stated understanding is 

that the rule would contradict 

congressional intent and Federal court 

ruling that apply a significant 

possibility standard to credible fear 

screenings. 

Response: Nothing in this proposed 

rule modifies the standard of proof that 

applies to any of USCIS’ screenings. In 

the credible fear context, the significant 

possibility standard of proof would 

continue to apply to all questions 

related to asylum, including the 

possible application of the mandatory 

bars. These include, where applicable, 

whether there is a significant possibility 

a noncitizen could demonstrate they are 

not subject to or are excepted from the 

CLP rule’s presumption of ineligibility 

for asylum (or that they could rebut the 

presumption), or whether there is a 

significant possibility they could 

demonstrate they are not subject to or 

are excepted from the Securing the 

Border rule’s limitation on asylum 

eligibility. DHS acknowledges that 

noncitizens subject to the CLP rule’s 

presumption of ineligibility for asylum 

or to the Securing the Border rule’s 

limitation on eligibility for asylum 

would be screened for statutory 

withholding of removal, including 

mandatory bars (if considered), and 

protection under the CAT at the 

reasonable possibility and reasonable 

probability standards, respectively. 

2. DHS’s Justification, Background, and 

Statements on Need for the Rule 

Comment: One commenter objected to 

the proposed rule for not adequately 

explaining how AOs would reliably be 

able to apply the mandatory bars during 

screening interviews without wasting 

resources or making unwarranted 

negative findings. 

Response: AOs regularly receive 

training on screening and adjudication, 

including the application of mandatory 

bars. AOs will consider the mandatory 

bars only in cases where the evidence is 

easily verifiable that a bar may apply, 

and where they believe they can 

efficiently address the issue during the 

screening interview. Determinations by 

AOs are subject to review within USCIS, 

including review by a supervisory 

asylum officer. See, e.g., 8 CFR 

208.30(e)(8). Noncitizens also have the 

right to request immigration judge 

review of any negative screening 

determination. 

Comment: Several commenters argued 

that DHS’s reliance on its success in 

implementing the CLP rule to help 

justify this proposed rule is misplaced 

because the application of the CLP rule 

has resulted in unlawful refoulement of 

noncitizens. 

Response: DHS’s experience with the 

CLP rule is relevant to this rule as it 

demonstrates that AOs are able to fairly 

and efficiently apply a rebuttable 

presumption of asylum ineligibility as 

part of a screening interview. The CLP 

rule and complementary measures have 

been in effect since May 11, 2023, and 

DHS and DOJ have been able to 

implement it without interruption. This 

experience has helped DHS significantly 

increase its capacity to screen 

noncitizens encountered at the border 


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70For example, as discussed in the Securing the 

Border IFR, CBP placed, on average, more than 970 

individuals encountered at and between POEs each 

day into expedited removal between May 12, 2023, 

and March 31, 2024, and USCIS conducted a record 

number of credible fear interviews (more than 

152,000) resulting from such cases. 89 FR at 48724. 

This is more interviews from SWB encounters at 

and between POEs during the same time span than 

in any full fiscal year prior to 2023, and more than 

twice as many as the annual average from FY 2010 

to FY 2019. Id. 

71See 88 FR at 31452; Moncrieffe v. Holder, 569 

U.S. 184, 187 n.1 (2013). 

under expedited removal and move 

them through the process more quickly 

than before the rule and complementary 

measures.70 Now that it is clear a 

rebuttable presumption of asylum 

ineligibility can be applied effectively 

during the credible fear process, the 

Department wishes to provide the AOs 

with discretion to apply certain 

mandatory statutory bars that may be 

easily verifiable in screening interviews. 

The Department disputes the 

assertion that noncitizens have been 

unlawfully removed from the United 

States due to the application of the CLP 

rule. Under the CLP rule, noncitizens 

have several protections against 

removal, including demonstrating 

exceptionally compelling circumstances 

at the time of entry to rebut the 

presumption of ineligibility for asylum, 

as well as screening for statutory 

withholding of removal and protection 

under the regulations implementing 

U.S. obligations under Article 3 of the 

CAT.71 In addition, as noted above, the 

United States has implemented its nonrefoulement obligations through 

statutory withholding of removal under 

INA sec. 241, 8 U.S.C. 1231, not the 

discretionary asylum provisions in 

section 208 of the INA, 8 U.S.C. 1158. 

Accordingly, it is not unlawful, or a 

violation of the United States’ nonrefoulement obligations, to remove a 

noncitizen found ineligible for asylum 

because they lack a credible fear under 

CLP and further found not to have 

demonstrated a reasonable possibility of 

persecution or torture for the purposes 

of statutory withholding of removal or 

protection under the Convention 

Against Torture regulations. 

Comment: Several commenters 

opposed the justification for the 

proposed rule stating that if at most 4 

percent of the cases would be affected, 

the proposed rule would not result in a 

meaningful portion of the EOIR caseload 

being eliminated. Similarly, several 

commenters objected to the justification 

for the proposed rule stating that the 

extremely limited number of cases it 

would apply to does not justify the 

unfairness of expecting newly arrived 

and often unrepresented noncitizens to 

prove that mandatory bars do not apply 

to them. 

Response: The proposed rule is not 

intended primarily as a backlog 

reduction tool. The rule expands DHS’s 

ability to more quickly remove 

noncitizens who are enforcement 

priorities: those who present national 

security or public safety threats. 

DHS does believe that the rule will 

conserve interagency government 

resources. Most significantly, 

noncitizens who are subject to the 

mandatory bars often must be detained 

throughout their removal proceedings. 

By issuing a decision at the earliest 

possible stage, Immigration and 

Customs Enforcement’s (ICE’s) 

detention resources are conserved in 

these cases. In addition, the rule would 

prevent some non-meritorious cases 

from adding to the immigration court 

pending caseload. 

The Department acknowledges, 

however, that this rule will apply only 

to a small subset of cases, as explained 

in section V.A.3 of this preamble 

describing the low percentage of 

credible fear and reasonable fear cases 

in which AOs have flagged the possible 

applicability of mandatory bars and is 

therefore not likely to result in a 

significant reduction in EOIR’s caseload. 

See Section V.A.2 and Table 4 below. 

Nevertheless, in the context of an 

immigration system that lacks the full 

resources needed to handle its 

workload, even small efficiency gains 

are important and may result in 

speedier decisions for other noncitizens. 

Comment: One commenter took issue 

with the justification for the proposed 

rule based on efficiency gains, stating 

that the proposed rule ‘‘will most 

certainly increase the time spent 

interviewing and writing up a decision 

for those asylum officers who choose to 

consider a bar in any given credible or 

reasonable fear interview and for their 

supervisors.’’ The same commenter 

stated that the proposed rule is silent on 

scheduling procedures for cases 

potentially impacted by the proposed 

rule, and does not acknowledge that the 

additional time spent considering bars 

will contribute to the asylum backlog. 

Another commenter similarly stated that 

by adding time to screening interviews, 

the proposed rule does not save 

resources so much as frontload the 

expenditure of resources on issues that 

may end up being relitigated at a later 

stage. 

Response: DHS disagrees with the 

commenter that the rule will 

significantly increase the time spent on 

screening interviews and decision 

making by USCIS. As the rule allows for 

permissive consideration of the 

mandatory bars, AOs will only expend 

additional resources interviewing when 

there is easily verifiable evidence that a 

mandatory bar may apply and the AO 

believes they can efficiently address the 

issue during a screening interview. 

Under current procedures, AOs are 

already required to ask questions 

regarding the mandatory bars in all 

screenings. DHS expects that, in the 

majority of cases, no additional new 

questions will need to be asked under 

this rule. 

DHS does not anticipate the need to 

change the way it schedules screening 

interviews as a result of this rule. 

Scheduling procedures must be able to 

be quickly modified due to changes in 

workflow and are not managed through 

regulations. 

The Department recognizes that 

where AOs exercise discretion to apply 

a mandatory bar at the screening stage 

because they believe the bar can 

efficiently and effectively be addressed 

in the screening, AOs may need to 

devote additional time developing the 

record as to that bar and analyzing the 

bar in the written determination. At the 

same time, where the AO bases a 

negative credible fear of persecution 

determination on the application of a 

mandatory bar, they will not have to 

perform a written credible fear of 

persecution analysis as to the merits of 

the persecution claim. Additionally, the 

Department believes that, in those cases, 

any possible added time will be offset 

by the efficiency gain to the broader 

immigration system as a whole of 

preventing noncitizens who are subject 

to a mandatory bar and would not 

otherwise be able to establish eligibility 

for protection under CAT from being 

placed in removal proceedings. 

Comment: One commenter objected to 

the amount of discretion for individual 

AOs provided by the proposed rule, 

coupled with the lack of guidance 

provided by the proposed rule regarding 

when AOs should consider mandatory 

bars. The commenter stated that this 

amount of discretion could lead to 

impermissible discrimination or 

profiling based on characteristics of the 

noncitizen. Another commenter 

objected to the lack of guidance or 

examples provided in the proposed rule 

about when the permissive 

consideration of bars would be 

appropriate, stating that AOs would 

need to ‘‘prophesy that such 

consideration would be fair and 

efficient before spending the time to 

delve into all the nuances of the case.’’ 

Response: The rule provides 

discretion for AOs to consider 

mandatory bars as a tool to maximize 

operational flexibility. However, AOs’ 


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72USCIS, RAIO Directorate—Officer Training: 

Evidence (Apr. 24, 2024). 

73Credible Fear Procedures Manual, Section 

III.D.3 (May 10, 2023); Perryman, Brian R. INS 

Office of Field Operations. Security and Privacy 

Provisions for Credible Fear Interviews Under 

Expedited Removal, Memorandum to Regional 

Directors, District Directors, Assistant District 

Directors for Detention and Deportation and 

Asylum Office Directors (Washington, DC: 1 July 

1997). 

74See USCIS ‘‘Credible Fear Procedures Manual,’’ 

Section III.E.1, https://www.uscis.gov/sites/default/ 

files/document/guides/CredibleFearProcedures

Manual.pdf; USCIS, ‘‘Reasonable Fear Procedures 

Manual,’’ Section III.E.1, https://www.uscis.gov/ 

sites/default/files/document/guides/Reasonable

FearProceduresManual.pdf. 

75See 89 FR at 81201–02. 

discretion under the rule is not 

unbounded. All of the determinations 

made by AOs in a screening interview 

are subject to supervisory review, and, 

for negative determinations, to review 

by immigration judges if requested by 

the noncitizen. 

Decisions on whether the evidence of 

a mandatory bar present in the case is 

easily verifiable and can be dealt with 

efficiently in the context of a screening 

interview is necessarily fact specific. 

AOs are trained to consider evidence 72

in the context of where and from whom 

the noncitizen claims fear, to assess the 

reliability of that evidence, and to 

consider testimonial evidence from the 

noncitizen. Moreover, AOs are wellversed in evaluating evidence as it 

relates to applying mandatory bars in 

the context of the affirmative asylum 

caseload and in conducting fear 

determinations generally; accordingly, 

they are well-positioned to make the 

discretionary decision whether it would 

be efficient and effective to apply a 

mandatory bar in an individual fear 

screening, given the evidence available 

in the record. 

Comment: Several commenters stated 

that DHS failed to provide any basis for 

what they described as a conclusory 

statement that the juncture at which the 

bars’ applicability is considered would 

have any bearing on public safety or 

national security merely because those 

issues are the subject of the relevant 

mandatory bars. 

Response: Quickly removing 

noncitizens who may constitute a public 

safety or security threat is a high 

priority for the Department. Many of the 

noncitizens who would ultimately be 

subject to the mandatory bars that AOs 

may consider under this rule could, 

based on the same evidence, be 

considered public safety or national 

security threats. By prioritizing 

decisions and consequences for these 

noncitizens, the Department hopes to 

create disincentives to other noncitizens 

who may constitute public safety or 

national security threats who may be 

considering travelling to the United 

States. 

D. Proposed Application of Mandatory 

Bars 

1. Noncitizens in Credible Fear and 

Reasonable Fear Screenings (8 CFR 

208.30 and 8 CFR 208.31) 

Comment: One commenter expressed 

concerns over potential limitations of 

telephonic credible and reasonable fear 

interviews, including privacy during the 

interview and the ability of the AO to 

assess non-verbal cues. Some 

commenters expressed concern that 

noncitizens in the screening process do 

not have adequate time to rest and 

prepare for their interviews. 

Response: Concerns about privacy 

during screening interviews and the 

limitations of telephonic interviews are 

outside the scope of this rulemaking, as 

this rulemaking will not affect the 

mechanics how DHS conducts credible 

fear and reasonable fear interviews. AOs 

already elicit information related to 

potential mandatory bars during 

screening interviews, and screening 

interviews are protected by regulations 

governing confidentiality. 8 CFR 208.6, 

1208.6. For detained noncitizens, DHS 

provides private spaces so that 

noncitizens may speak freely to the AO 

during their interview, although, in 

some facilities, an officer may be 

present on site for safety purposes.73

Telephonic credible fear and reasonable 

fear interviews are the current, 

longstanding policy,74 and while AOs 

are not able to assess all nonverbal cues 

telephonically, they are able to assess 

some, such as tone of voice, inflection, 

and other auditory nonverbal 

communications. The Department notes 

that it, along with DOJ, addressed 

similar comments related to the 

conditions in which credible fear 

interviews are conducted in the 

Securing the Border Final Rule.75

2. Noncitizens Subject to CLP 

Presumption of Ineligibility, Statutory 

Withholding of Removal Screening 

(§ 208.33) 

Comment: A few commenters 

expressed opposition to the proposed 

rule’s inclusion of noncitizens subject to 

the CLP presumption of eligibility. One 

such commenter wrote that the 

provision to assess certain bars when 

the CLP rule applies could 

detrimentally affect the most vulnerable, 

including those fleeing oppressive 

regimes, adding that people fleeing 

countries where they face persecution 

do not have the time or means to 

navigate the complex and, at times, 

inaccessible legal pathways to asylum in 

the United States. The commenter also 

stated that empowering AOs to apply 

the bars would defy basic principles of 

fairness, increasing barriers for those 

subject to both the CLP rule and this 

proposed rule. 

Response: The Department rejects the 

commenters’ claims that analysis of the 

mandatory bars alongside the 

application of CLP could 

disproportionately impact certain 

vulnerable populations and that the rule 

defies principles of fairness. 

Commenters did not provide any 

explanation for why applying 

mandatory bars in the context of 

screenings under the CLP rule, which is 

intended to promote lawful, safe, and 

orderly pathways to the United States 

and to benefit particularly vulnerable 

groups by removing the incentive to 

make a dangerous irregular migration 

journey, would disproportionately 

impact any class of noncitizens. See 88 

FR at 31314. Further, as noted 

elsewhere, this rule does not change 

substantive eligibility for asylum or for 

withholding of removal, so the 

discretionary authority of AOs provided 

by this rule to consider the covered 

statutory bars in CLP screening 

interviews will not affect the ultimate 

forms of relief available to a noncitizen. 

The Department will apply the rule 

fairly and emphasizes that the 

Department believes that this rule will 

impact a relatively small number of 

individuals who are not eligible for 

protection because they present a 

national security or public safety threat. 

To the extent that commenters’ 

concerns regard the merits of the CLP 

limitation on asylum eligibility, such 

concerns are outside the scope of this 

rule. The Department previously 

accepted comments on that rule and 

responded to those in the CLP final rule. 

88 FR at 31324–441. 

3. Inclusion of Specific Bars (e.g., 

Particularly Serious Crimes Bar, 

Security Bar) 

Comment: Some commenters 

expressed concerns over the potential 

application of the persecutor bar with 

the limited time available for a 

screening interview. A commenter 

wrote that the persecutor bar should not 

be applied in fear screenings because it 

involves complex factual inquiries and 

has unsettled legal questions. Some 

commenters wrote that key questions of 

fact and law remained as to whether 

international treaty obligations required 

the consideration of duress in 

determinations involving the persecutor 

bar, or as to whether the failure to 

recognize the duress exception unfairly 


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76For example, the possible ‘‘duress exception’’ 

referenced by commenters has had multiple 

interpretations over the years from the Board of 

Immigration Appeals and the Attorney General. See 

Negusie v. Holder, 555 U.S. 511 (2009) (‘‘Negusie 

I’’) (overruling a prior Board decision finding the 

plain language of the statute not allowing for a 

duress defense or exception and declaring the 

persecutor bar ambiguous as to consideration of 

duress or coercion); Matter of Negusie, 27 I&N Dec. 

347 (BIA 2018) (‘‘Negusie II’’) (interpreting the 

persecutor bar for asylum as including a narrow 

duress defense); Matter of Negusie, 28 I&N Dec. 120 

(A.G. 2020) (‘‘Negusie III’’) (finding the plain 

language of the persecutor bar as not allowing for 

consideration of duress); Matter of Negusie, 28 I&N 

Dec. 399 (A.G. 2021) (‘‘Negusie IV’’) (ordering the 

Board to refer Negusie’s case to the Attorney 

General and staying Negusie’s case pending the 

Attorney General’s review). The Attorney General’s 

decision in Negusie III remains in effect, and any 

further review remains pending. 

77See Xie v. INS, 434 F.3d 136, 143 (2d Cir. 2006) 

(holding that ‘‘transporting captive women to 

undergo forced abortions’’ pursuant to the one-child 

policy was assistance in persecution). 

78The Global Asylum Rule took a different 

approach than this proposal, requiring that AOs 

consider multiple mandatory bars. See 85 FR 80274, 

80278 (Dec. 11, 2020) (‘‘DHS requires asylum 

officers to determine . . . whether an alien is 

subject to one or more of the mandatory bars’’). This 

proposed rule would not require such 

consideration. 

79Because credible fear screenings are conducted 

at the significant possibility standard, in cases 

where the application of a bar is not obvious, 

requiring the AO to consider application of a bar 

would likely result in significantly extended 

interviews with no meaningful outcome because 

relevant information might not be available to the 

officer at screening even with a significantly 

extended interview. 

harms bona fide asylum seekers, among 

other issues. Commenters also stated 

that AOs would need to make a prompt 

assessment of whether the duress 

exception applies, an area of law that is 

unsettled. The result, the commenter 

stated, would be erroneous applications 

of the bar based on poor factual 

development and rushed legal analysis. 

These commenters wrote that this 

analysis should occur at the merits 

stage, not in the expedited removal 

setting. 

Response: The Department 

understands the complexities of the 

persecutor bar,76 but it disagrees with 

the commenters’ statements that 

analysis of the persecutor bar is legally 

and factually too complex to be 

analyzed in a screening interview and 

that the extensive factual development 

required would lead to erroneous 

application of the bar. AOs already 

inquire into the potential applicability 

of mandatory bars, including the 

persecutor bar, during credible fear and 

reasonable fear screenings, noting any 

relevant information in the record. 

While many cases implicating the 

persecutor bar involve complex factual 

and legal issues, not all do. For 

example, a noncitizen who admits in 

credible testimony under oath to having 

voluntarily forced a woman to abort a 

pregnancy as part of the noncitizen’s 

work as a health ministry official 

charged with enforcing the Chinese 

government’s ‘‘one child policy’’ when 

it was in effect would clearly be barred 

from asylum and statutory withholding 

of removal as a persecutor.77

Furthermore, the persecutor bar 

shares multiple elements with the 

refugee definition at section 

101(a)(42)(A) of the INA, 8 U.S.C. 

1101(a)(42)(A), that officers must 

analyze in every asylum case, including 

whether the harm at issue rises to the 

level of persecution and whether it was 

or would be inflicted on account of one 

of the five protected grounds. The only 

additional considerations in the 

persecutor bar analysis involve 

analyzing the applicant’s participation 

in (rather than experience or fear of) 

persecution, that is, whether the 

applicant ordered, incited, assisted, or 

otherwise participated in the 

persecution, and analyzing whether the 

applicant had the requisite knowledge 

that the persecution was being or would 

be carried out. While these additional 

elements may in some cases introduce 

a level of complexity that would 

counsel against consideration of the 

persecutor bar in a screening context, 

they do not necessarily do so in every 

case. This significant overlap with the 

refugee definition analysis, which AOs 

must routinely conduct in both credible 

fear screenings and affirmative asylum 

adjudications, demonstrates that 

considering the persecutor bar need not 

involve complex legal or factual issues 

in every case in which it arises and that 

in some cases where there is clear 

evidence it does apply, AOs will be able 

to address it efficiently in credible fear 

or reasonable fear screenings. 

Where there is evidence available to 

the AO that triggers an inquiry into an 

applicable mandatory bar, and the AO 

can address that bar efficiently at the 

screening interview, then the noncitizen 

will be given the opportunity to 

establish, at the relevant standard, that 

the bar would not apply. Under this 

rule, AOs will have the flexibility to 

apply certain mandatory bars during 

screenings as it relates to eligibility for 

asylum and statutory withholding of 

removal, and the individual will 

continue to have the opportunity to 

establish a credible or reasonable fear of 

torture. Notably, this rule would not 

require AOs to consider applicability of 

mandatory bars as part of a fear 

determination.78 Such a requirement 

would reduce operational flexibility by 

potentially adding hours to interviews 

in which there are indicia that a bar 

might apply, but for which applicability 

is unclear.79 Moreover, this proposed 

rule would not disturb the long-standing 

regulation establishing that in making 

credible fear determinations, AOs ‘‘shall 

consider whether the [ ] case presents 

novel or unique issues that merit 

consideration in a full hearing before an 

immigration judge.’’ 8 CFR 208.30(e)(4). 

This rule also preserves the option for 

noncitizens to be placed in an AMI or 

in proceedings before an immigration 

judge when evidence surrounding a 

possible mandatory bar needs to be 

further developed, as is currently the 

practice. Likewise, ICE will retain the 

ability to detain or otherwise monitor 

the noncitizen in those cases. See INA 

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

1225(b)(1)(B)(1)(ii); 8 CFR 208.9; see 

also INA sec. 212(d)(5)(A), 8 U.S.C 

1182(d)(5)(A); 8 CFR 212.5(d), 

235.3(b)(4)(ii). The Department believes 

this discretion will safeguard against 

erroneous application of the bar when it 

is clear that further evidence or 

interviews are needed. This is why 

preserving the AO’s discretion in 

analyzing the mandatory bars is integral 

to the rule. 

Comment: Some commenters also 

stated that the particularly serious crime 

bar is legally and factually complex and 

thus is inappropriate for inclusion in 

screening interviews. Commenters 

added that, since the bar is different for 

asylum and statutory withholding of 

removal, applying this bar in both 

credible fear and reasonable fear 

interviews would be confusing for AOs 

who are assigned to do both types of 

screenings. A commenter further 

reasoned that there is no indication that 

the application of the particularly 

serious crime bar would have any 

meaningful impact on screening 

interview efficiency because the 

particularly serious crime provision 

applies in circumstances where an 

individual has a conviction inside the 

United States, and most people 

undergoing a credible fear interview 

will not have been present in the United 

States previously and thus are unlikely 

to have been convicted of such a crime. 

Instead, the commenter wrote, this bar 

would likely only apply in the 

reasonable fear context to narrow subset 

of individuals. The commenter 

suggested that, if the Department moves 

forward with this proposed rule, it 

should, at minimum, remove the 

application of this bar from the factors 

to be considered. 

Response: The Department disagrees 

with commenters’ statements that the 

particularly serious crime bar analysis is 


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80See INS v. Aguirre-Aguirre, 526 U.S. 415 

(1999); Matter of E-A-, 26 I&N Dec. 1 (BIA 2012). 

legally and factually too complex to be 

analyzed in a screening interview and 

that any factual development required 

during a screening interview would lead 

to erroneous application of the bar. AOs 

already inquire into the potential 

applicability of mandatory bars, 

including the particularly serious crime 

bar, during credible fear and reasonable 

fear screenings, noting any relevant 

information in the record. The 

Department also disagrees with the 

comment that because the particularly 

serious crime bar is applied differently 

in asylum and withholding of removal, 

it will be confusing for AOs to analyze. 

As previously stated, AOs are highly 

capable of assessing mandatory bars at 

the credible fear screening, based on 

their specialized training in asylum law. 

AOs will also retain discretion not to 

analyze the bars, especially where it is 

clear that further evidence and factgathering is needed. AOs receive 

continuous training on relevant topics 

to ensure their ability to conduct 

thorough interviews and make legally 

sufficient determinations. 

The Department also disagrees with 

the comment that the rule will lack 

meaningful impact on interview 

efficiency because the particularly 

serious crime bar applies to U.S. 

convictions and is unlikely to impact 

many noncitizens. The particularly 

serious crime bar may apply to both 

U.S. and foreign convictions, depending 

on the facts surrounding the 

noncitizen’s conviction, the noncitizens’ 

immigration history, and when a fear 

claim is made. See 8 CFR 208.13(c); INA 

secs. 208(b)(2)(A)(ii), 241(b)(3)(B)(ii), 8 

U.S.C. 1158(b)(2)(A)(ii), 

1231(b)(3)(B)(ii). While the Department 

believes this rule will impact a very 

small number of noncitizens who will 

be removed early on in the immigration 

process, this impact is still meaningful 

because it will free resources further in 

the process, specifically with EOIR, ICE, 

and CBP to process other cases more 

expeditiously. Inclusion of the 

particularly serious crime bar in this 

rule serves a Department priority: to 

protect the public from noncitizens who 

pose national security and public safety 

concerns. 

Comment: Some commenters 

expressed concern with the application 

of the serious nonpolitical crime bar. 

Another wrote that the serious 

nonpolitical crime bar is not defined in 

the INA and does not require an arrest 

or conviction and the application of this 

bar is legally and factually intensive and 

contingent on the reliability of the 

available evidence. A commenter stated 

the reliability of the evidence would be 

subject to the circumstances of 

hundreds of different legal systems from 

around the world. Some commenters 

expressed concern that the analysis of 

the bar is too complex for screening 

interviews and applying this bar could 

require extensive factual development 

and review of evidence by AOs, which 

would further delay findings or lead to 

erroneous application of the bar. A 

commenter is contingent on available 

and reliable evidence from foreign legal 

authorities. 

Response: While the INA does not 

define the phrase ‘‘serious nonpolitical 

crime,’’ there is substantial case law 

involving the serious nonpolitical crime 

bar 80 that provides guidelines for AOs 

when they encounter potential bar 

concerns. AOs already inquire into the 

potential applicability of mandatory 

bars, including the serious nonpolitical 

crime bar, during credible fear and 

reasonable fear screenings, noting any 

relevant information in the record. The 

Department appreciates the concerns 

noted in some of the comments, namely 

that application of the serious 

nonpolitical crime bar is legally and 

factually intensive and that, if 

improperly applied, noncitizens may be 

denied due process or returned to places 

of persecution. The Department is aware 

that analysis of the bar requires a caseby-case evaluation of the facts and 

circumstances presented, but as 

previously stated, AOs retain discretion 

to analyze the mandatory bars, and may 

choose not to analyze the bar when it is 

clear in a given case that additional 

analysis is needed. The Department is 

fully committed to providing sufficient 

procedural safeguards consistent with 

the purpose of the expedited removal 

process and believes that where the 

potential bar analysis requires more 

fact-gathering and analysis than can be 

completed during the screening 

interview, the noncitizen may be placed 

in the AMI process or section 240 

removal proceedings before an 

immigration judge so that further 

analysis can occur. Furthermore, not 

every case involving the serious 

nonpolitical crime bar is factually and 

legally complex. For example, if the 

record contains an authenticated record 

of conviction of the noncitizen for rape 

from the government of the United 

Kingdom, such easily verifiable 

evidence could be efficiently considered 

by an AO in the context of a credible 

fear or reasonable fear screening. 

Comment: Commenters also 

expressed concerns regarding the 

inclusion of the statutory security bars 

at INA secs. 208(b)(2)(A)(iv) and 

241(b)(3)(B)(iv), 8 U.S.C. 

1158(b)(2)(A)(iv) and 1231(b)(3)(B)(iv). 

A commenter expressed concern about 

expecting AOs to assess whether an 

individual poses what the commenter 

called a ‘‘true security threat’’ to the 

United States during a screening 

interview. Citing case law, the 

commenter stated there is unanimous 

agreement among foreign courts, 

international law experts, and Congress’ 

legislative history that this bar was 

conceived as a narrow exception to nonrefoulement obligations. In considering 

the high threshold for meeting the bar, 

the commenter said Congress did not 

intend to allow DHS to improperly 

subject asylum seekers to this bar and 

remove ‘‘otherwise-eligible asylees who 

do not present genuine security threats 

to the United States,’’ citing Hernandez 

v. Sessions, 884 F.3d 107, 113 (2d Cir. 

2018). Echoing other comments on the 

bars, the commenter additionally stated 

that the security bar requires a factual 

and legal analysis that would 

substantively lengthen the time and 

resources that AOs need. Furthermore, 

the commenter wrote, the risk of 

misapplying this bar would be great. 

Response: The Department rejects the 

concerns about AOs’ ability to assess 

whether a noncitizen poses a danger to 

the security of the United States, that 

bar analysis will increase time and 

resources needed, and that the risk of 

misapplication of the bar is great. As 

previously stated, AOs will retain 

discretion to consider the bars at the 

screening interview. AOs already 

inquire into the potential applicability 

of mandatory bars, including the danger 

to the security of the United States bar, 

during credible fear and reasonable fear 

screenings, noting any relevant 

information in the record. Furthermore, 

while the danger to the security of the 

United States bar often involves 

complex factual and legal analysis, not 

every case in which it arises does. For 

example, testimony under oath by a 

noncitizen who admits to being an agent 

of a hostile foreign government who 

attempted to irregularly enter the United 

States for the sole purpose of 

conducting espionage targeting U.S. 

military bases would clearly indicate 

the bar may apply. Faced with such 

evidence, AOs should not be precluded 

from considering the applicability of the 

bar in a screening interview. 

Comment: Commenters also 

expressed concern over the inclusion of 

the terrorism-related statutory bars at 

INA secs. 208(b)(2)(A)(v) and 

241(b)(3)(B)(iv), 8 U.S.C. 

1158(b)(2)(A)(v) and 1231(b)(3)(B)(iv). A 

commenter stated that the terrorism bars 

have a history of wrongfully labeling 


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81See USCIS, ‘‘Terrorism-Related Inadmissibility 

Grounds—Group-Based Exemptions,’’ https://

www.uscis.gov/laws-and-policy/other-resources/ 

terrorism-related-inadmissibility-grounds-trig/ 

terrorism-related-inadmissibility-grounds-triggroup-based-exemptions (last visited Aug. 29, 

2024); and USCIS, ‘‘Terrorism-Related 

Inadmissibility Grounds—Situational Exemptions,’’ 

https://www.uscis.gov/laws-and-policy/otherresources/terrorism-related-inadmissibilitygrounds-trig/terrorism-related-inadmissibilitygrounds-trig-situational-exemptions (last visited 

Aug. 29, 2024). 

individuals as terrorists and barring 

them from protection in the United 

States, writing that these provisions 

have been used against Afghan 

individuals and have been a vehicle for 

family separation. The commenter 

concluded that applying the terrorism 

bars at the credible fear interview and 

reasonable fear screening stage neither 

complies with domestic and 

international refugee law, nor comports 

with U.S. national security interests. 

Response: The Department disagrees 

with the comment that applying the 

terrorism bars in the screening interview 

neither complies with domestic and 

international refugee law, nor comports 

with U.S. national security interests. 

One of the Department’s primary 

purposes is to maintain national 

security by securing U.S. borders and 

protecting the country from national 

security threats, including terrorism. As 

previously mentioned, the number of 

noncitizens impacted by this rule is 

expected to be modest. The Department 

believes that identifying and removing 

noncitizens subject to the bars early in 

the process increases efficiencies in the 

immigration system while also 

maintaining national security. The U.S. 

government works to protect national 

security while upholding our 

humanitarian mandates, in accordance 

with our domestic and international 

obligations. In applying the terrorism 

bars, the Department also considers 

numerous exceptions or discretionary 

exemptions to the bars that may apply, 

including, for example, situational 

exemptions for insignificant material 

support, certain limited material 

support, exemptions for Afghan allies 

and civil servants, and group-based 

exemptions.81 These exemptions are a 

reflection of the Department’s 

understanding that mandatory bar 

application is a case-by-case analysis 

and that noncitizens seeking protection 

may have faced unique circumstances 

that may warrant a discretionary 

exemption from the mandatory bar if 

threshold requirements are met and an 

exemption is warranted in the totality of 

the circumstances. The Department 

again states that the AO would retain 

discretion to analyze a mandatory bar at 

the screening stage and if further 

evidence, interviews, or analysis are 

needed, may opt not to analyze that bar 

during the screening. Instead, if the 

noncitizen receives a positive 

determination, the bar would be fully 

explored in an AMI or in front of the 

immigration judge. Finally, the claim 

that the terrorism bars have wrongfully 

labelled noncitizens as terrorists, and 

specifically has been used against 

Afghan noncitizens and as a vehicle for 

family separation, is inapposite, as this 

rule does not substantively amend the 

contours of who may be subject to this 

statutory bar. 

4. Exclusion of the Bars To Applying for 

Asylum and of the ‘‘Firm Resettlement’’ 

Bar, INA Secs. 208(a)(2), (b)(2)(A)(vi) 

Comment: A few commenters 

expressed appreciation that the firm 

resettlement bar is excluded from this 

rule. A few commenters expressed 

concern that the rule excludes 

consideration of the firm resettlement 

bar and believe that officers should be 

required to consider all bars during the 

screening process. Another commenter 

expressed concern that the rule 

excludes consideration of the safe third 

country exception. A commenter found 

the decision to not extend the 

consideration of the firm resettlement 

bar to protection screenings selective 

and makes the decision to consider the 

other bars at this stage ‘‘questionable.’’ 

A commenter suggested DHS should 

require AOs to consider all bars to 

asylum and statutory withholding of 

removal in fear screenings, including 

the bars to applying for asylum at INA 

sec. 208(a)(2), 8 U.S.C. 1158(a)(2). The 

comment stated that it is arbitrary to 

exclude all the bars from the rule. A 

commenter expressed concern that 

analysis of the firm resettlement bar in 

particular is complex and it will be 

difficult to properly analyze the bar 

during the screening process. 

Response: DHS declines to include 

consideration of the bars to applying for 

asylum—other than the safe third 

country bar as already provided in 8 

CFR 208.30(e)(6) for purposes of 

implementing the U.S.-Canada Safe 

Third Country Agreement—and the firm 

resettlement bar in fear screenings. 

Doing so would undermine the 

efficiency of fear screenings and would 

not be a productive use of Department 

resources. The overwhelming majority 

of noncitizens placed into the expedited 

removal process who are referred for 

credible fear screenings appear before 

an AO within days or weeks of arrival 

in the United States and are therefore 

not subject to the 1-year filing 

requirement at INA sec. 208(a)(2)(B), 8 

U.S.C. 1158(a)(2)(B). Furthermore, the 

safe third country bar to applying for 

asylum at INA sec. 208(a)(2)(A), 8 U.S.C. 

1158(a)(2)(A) currently only applies to 

certain noncitizens arriving from 

Canada. The regulation at 8 CFR 

208.30(e)(6) already provides 

procedures for credible fear screening of 

such noncitizens, so doing so in this 

rule would be duplicative. The bar to 

applying for asylum based on the 

noncitizen having previously applied 

for and been denied asylum at INA sec. 

208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C) is 

subject to an exception for changed 

circumstances materially affecting 

eligibility for asylum codified at INA 

sec. 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D). 

The necessity of exploring the 

applicability of this exception during a 

credible fear interview would 

undermine the efficiency of the 

screening, which is designed to quickly 

identify noncitizens without a legal 

basis to remain in the United States and 

ensure those with viable claims are able 

to pursue them in a full merits hearing 

or AMI. In addition, these bars do not 

serve the same public safety purpose as 

the bars that AOs will have the 

discretion to consider under this rule. 

The Department acknowledges the 

comments expressing appreciation that 

the Department did not include the firm 

resettlement bar in this rule, DHS 

disagrees with comments that the firm 

resettlement bar should be included and 

that AOs should be required to analyze 

all bars. One of the purposes of this rule 

is to give AOs discretion, at the earliest 

stage possible, to consider whether a 

noncitizen is unlikely to be able to 

establish eligibility for asylum or 

statutory withholding of removal 

because of a mandatory bar that relates 

to participation in persecution, or 

national security, criminal, or other 

public safety concerns. The Department 

believes that ignoring these serious 

concerns runs counter to its policy 

goals. The firm resettlement bar, 

however, does not fall into one of the 

categories listed above. Moreover, 

although firm resettlement constitutes a 

mandatory bar to asylum eligibility, it is 

not a bar to eligibility for statutory 

withholding. 

Furthermore, as DHS explained in the 

NPRM, 89 FR at 41355, the firm 

resettlement regulations currently in 

effect, 8 CFR 208.15, 1208.15 (2020), 

include a burden-shifting framework 

that requires the Department to bear the 

initial ‘‘burden of presenting prima facie 

evidence of an offer of firm 

resettlement’’ that can be rebutted by 

the noncitizen. Matter of A-G-G-, 25 I&N 

Dec. 486, 501 (BIA 2011). This 

framework differs from the analytical 


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82USCIS, RAIO Directorate—Officer Training: 

Detecting Possible Victims of Trafficking (Apr. 24, 

2024). 

83 DHS–ICE, ‘‘ICE announces new process for 

placing family units in expedited removal,’’ https:// 

www.ice.gov/news/releases/ice-announces-newprocess-placing-family-units-expedited-removal 

(May 10, 2023). 

84 DHS–ICE, ‘‘ICE announces new process for 

placing family units in expedited removal,’’ https:// 

www.ice.gov/news/releases/ice-announces-newprocess-placing-family-units-expedited-removal 

(May 10, 2023). 

85See USCIS, ‘‘Credible Fear Screenings,’’ https:// 

www.uscis.gov/humanitarian/refugees-and-asylum/ 

asylum/credible-fear-screenings (last visited June 

24, 2024); USCIS, ‘‘Questions and Answers: 

Credible Fear Screening,’’ https://www.uscis.gov/ 

humanitarian/refugees-and-asylum/asylum/ 

questions-and-answers-credible-fear-screening (last 

visited June 24, 2024); USCIS, ‘‘Reasonable Fear 

Screenings,’’ https://www.uscis.gov/humanitarian/ 

refugees-and-asylum/asylum/reasonable-fearscreenings (last visited June 24, 2024); and USCIS, 

‘‘Questions and Answers: Reasonable Fear 

Screenings,’’ https://www.uscis.gov/humanitarian/ 

refugees-and-asylum/asylum/questions-andanswers-reasonable-fear-screenings (last visited 

June 24, 2024). 

framework for the security-related bars 

that are the subject of this rulemaking. 

The Matter of A-G-G- framework and 

firm resettlement definition could make 

it difficult for AOs to easily verify 

whether a noncitizen is subject to the 

bar. This difficulty would also 

undermine the efficiency of credible 

fear screenings, which is contrary to the 

intent of Congress and the purpose of 

this rule. 

5. Exclusion of CAT Screenings 

(Withholding of Removal) 

(§§ 208.30(e)(3), 208.33(b)(2)(i), 

208.35(b)(2)(i)) 

Comment: A commenter expressed 

concern that noncitizens found 

ineligible for asylum and withholding of 

removal because of a mandatory bar will 

only be eligible for protection under 

CAT. This commenter believes that CAT 

protection is an inadequate form of 

protection. Another commenter 

expressed concern that the rule would 

provide AOs too much discretion to 

consider mandatory bars and requested 

limiting discretion as related to 

trafficking victims and those seeking 

protection under CAT. 

Response: This rule does not change 

the underlying grounds of eligibility for 

asylum, withholding of removal, or 

protection under the Convention 

Against Torture. The rule only amends 

the credible fear and reasonable fear 

interview processes to allow AOs to 

apply certain statutory mandatory bars 

earlier in the process—at the interview 

stage rather than at a later full merits 

adjudication—than would occur 

without this rule. Accordingly, a 

noncitizen who is determined to only be 

eligible for CAT protection would also 

only be eligible for CAT protection 

absent this rule. For these reasons, the 

Department declines to further address 

commenters’ concerns that CAT 

protection is ‘‘inadequate’’ as they are 

outside the scope of this rule’s changes. 

The Department disagrees with the 

claim that the rule will provide AOs 

with too much discretion to consider 

mandatory bars and that discretion 

should be limited as related to certain 

noncitizens. As previously stated, AOs 

will have discretion to analyze the 

mandatory bars, but where more 

information or evidence is needed 

concerning the bar and the 

determination is positive, the noncitizen 

would proceed to an AMI or a hearing 

before an immigration judge. 

Furthermore, AOs are trained not only 

in asylum law but also to recognize 

signs of trafficking and follow 

procedures to assist potential trafficking 

victims.82

6. Other/General Comments on the 

Application of Bars 

Comment: A commenter stated that 

the rule should not apply to family units 

in the Family Expedited Removal 

Management (FERM) program 83

because family units often lack legal 

counsel, may speak uncommon 

languages, and may not have enough 

time to gather evidence for their 

interviews. 

Response: DHS currently places 

certain non-detained family units in the 

credible fear process in the FERM 

program. FERM leverages alternatives to 

detention to process families through 

expedited removal, including credible 

fear screenings, in a non-detained 

setting. FERM is designed to ensure 

family units in the credible fear process 

participate in a timely credible fear 

interview and any requested review by 

an immigration judge without being 

detained.84 Placement in the FERM 

program has no impact on the 

substantive credible fear screening nor 

changes the applicable legal standards. 

This rule applies to credible fear 

screenings in the non-detained FERM 

program the same as it applies to 

credible fear screenings that take place 

in detention. As with any other 

noncitizen in the credible fear screening 

process, AOs have the discretion to 

apply certain mandatory bars pursuant 

to this rule at the credible fear screening 

and if applied, noncitizens will have the 

opportunity to present evidence that the 

bar does not apply at the appropriate 

standard depending on the case. The 

concerns noted in this comment are no 

different than those mentioned by other 

commenters about the overall 

population of noncitizens in the 

screening process. As previously stated, 

noncitizens in credible fear may be 

represented by an attorney at no cost to 

the government and may consult with 

persons of their choosing. INA sec. 

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

1225(b)(1)(B)(iv), 8 CFR 235.3(b)(4)(ii); 

208.30(d)(4), 8 CFR 208.31(c). The 

Department also provides governmentcontracted interpreters if the noncitizen 

is unable to proceed with the interview 

in English. 8 CFR 208.30(d)(5). The 

Department emphasizes that the rule 

does not require AOs to consider 

applicability of the bars in the fear 

determination, including FERM cases, 

and that the Department estimates this 

will impact a relatively small number of 

individuals who are not eligible for 

protection. 

7. Screening Procedures, AO 

Determinations, Immigration Judge 

Review of Negative Fear Determinations 

Comment: A few commenters 

expressed concern with the proposal to 

make AOs’ consideration of the bars at 

the fear screening stage discretionary. 

For example, commenters expressed 

concern that the opacity of the screening 

interview process and the discretion 

given to AOs would make it impossible 

to verify DHS’s implied claim that there 

is an easily identifiable population of 

individuals who are ineligible for 

asylum but are nonetheless subject to 

screening interviews. The commenters 

indicated this dynamic necessarily 

means the rule’s effects would 

ultimately be obscure and 

unaccountable to the public. 

Response: DHS disagrees that the 

processes under which it conducts 

screening interviews are opaque. 

Regulations governing credible fear and 

reasonable fear screenings conducting 

by DHS are published at 8 CFR 208.30, 

208.31, 208.33, 208.35, 235.3, and 

235.15. USCIS maintains information 

about credible fear and reasonable fear 

screenings on its public website.85

Individuals undergoing credible fear 

screenings receive written disclosures 

about the process. 8 CFR 235.3(b)(4)(i) 

and 235.15(b)(4)(i)(B). AOs are required 

to determine that noncitizens 

undergoing reasonable fear screenings 

understand the reasonable fear 

determination process. 8 CFR 208.31(c). 

Noncitizens have the right to consult 

with a person or persons of their 

choosing before undergoing a credible 

fear interview, and such person or 

persons may also be present at the 

interview. 8 CFR 208.30(d)(4). 


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86 89 FR 41347, 41353 (May 13, 2024) (‘‘Rather 

this rule would create the flexibility for the AO to 

exercise discretion—with supervisory review of any 

decision—on the applicability of bars during the 

screening stage.’’); see also USCIS, ‘‘Semi-Monthly 

Credible Fear and Reasonable Fear Receipts and 

Decisions’’ (‘‘All credible fear and reasonable fear 

screening determinations were reviewed by either 

a supervisory asylum officer, occupational series 

0930 or one of a small number of supervisory 

refugee officers, occupational series 1801, serving in 

the capacity of supervisory asylum officers. The 

supervisory refugee officers are either former 

asylum officers or have been trained and have 

experience consistent with the regulatory and 

statutory requirements to conduct reviews of these 

cases.’’), https://www.uscis.gov/tools/reports-andstudies/semi-monthly-credible-fear-and-reasonablefear-receipts-and-decisions (last visited June 17, 

2024). 

Noncitizens undergoing reasonable fear 

interviews may be represented by 

counsel or an accredited representative 

at the interview. 8 CFR 208.31(c). After 

an AO conducts a credible fear 

screening, the officer issues the 

noncitizen a record of the credible fear 

determination, including copies of the 

AO’s notes, the summary of the material 

facts, and other materials upon which 

the determination was based. 8 CFR 

208.30(f), (g), 208.33(b)(2)(v), 

208.35(b)(2)(v). Noncitizens determined 

to lack a credible fear of persecution or 

torture may have such determinations 

reviewed by an immigration judge. 8 

CFR 208.30(g), 208.33(b)(2), 

208.35(b)(2), 1003.42, and 1208.30(g). 

Noncitizens determined to lack a 

reasonable fear of persecution or torture 

are informed of the decision in writing 

and may request review of the decision 

by an immigration judge. 8 CFR 

208.31(f) and (g). Supervisors review all 

credible fear and reasonable fear 

determinations for legal sufficiency and 

compliance with applicable procedures 

before such determinations are issued.86

These measures and others ensure the 

credible fear and reasonable fear 

screening processes are transparent and 

subject to accountability through 

review, including before an immigration 

judge at the noncitizen’s request. 

DHS disagrees with comments 

asserting that the discretion the rule 

provides to AOs would make it 

impossible to verify the implied premise 

of the rule that there is an easily 

identifiable population of individuals 

who are ineligible for asylum but are 

nonetheless subject to screening 

interviews and that the effects of the 

rule would be obscure and 

unaccountable to the public. As 

discussed in the NPRM and in this rule, 

the premise of the rule is that there are 

certain cases where there is information 

at the screening stage to show that the 

noncitizen is both (1) subject to a 

mandatory bar to asylum and/or 

withholding of removal and (2) 

otherwise unable to meet the requisite 

screening standard for protection under 

CAT and it is those cases that the 

Department seeks to screen out at an 

earlier stage, rather than having them 

move forward in the process. 89 FR 

41351. The Department has been fully 

transparent and clear about the potential 

impact of this rule as limited to cases 

where application of a mandatory bar to 

asylum and statutory withholding of 

removal results in a negative credible 

fear of persecution determination or 

application of a mandatory bar to 

statutory withholding of removal results 

in a negative reasonable fear of 

persecution determination, and the 

noncitizen is otherwise unable to 

establish a fear of torture at the requisite 

screening standard, since application of 

a mandatory bar will only be outcome 

determinative if the noncitizen is 

otherwise unable to establish a fear of 

torture. 89 FR 41351. 

In individual cases, the application of 

a mandatory bar resulting in a negative 

credible fear or reasonable fear 

determination will be documented in 

the record and available for a noncitizen 

and their representative to review. For 

example, where an AO issues a negative 

credible fear determination with respect 

to asylum and statutory withholding of 

removal based on the application of a 

mandatory bar, the AO will provide the 

noncitizen with a written notice of 

decision and issue the noncitizen a 

record of the credible fear 

determination, including copies of the 

AO’s notes, the summary of the material 

facts, and other materials upon which 

the determination was based. See 8 CFR 

208.30(g)(1). In any screening 

determination where the negative 

credible fear or reasonable fear of 

persecution determination is based on 

the application of a mandatory bar, 

these materials documenting the 

determination that are served on the 

noncitizen and their representative (if 

applicable) will provide transparency 

into how application of the mandatory 

bar resulted in a negative credible fear 

or reasonable fear of persecution 

determination, in addition to why the 

noncitizen also failed to establish a 

credible fear or reasonable fear of 

torture. 

Comment: Commenters indicated that 

the rule provides insufficiently clear 

guidance on how AOs will determine 

whether a noncitizen is clearly 

ineligible for relief because of a 

mandatory bar, whether there is easily 

verifiable evidence that warrants 

inquiry into a mandatory bar, or 

whether the AO can efficiently address 

the bar in a screening interview. A 

commenter noted that that DHS did not 

include in the regulatory text the 

limitation that AOs would only consider 

bars in cases where a noncitizen is 

clearly ineligible and there is easily 

verifiable evidence of bar and did not 

define ‘‘clearly ineligible’’ and ‘‘easily 

verifiable’’ in the regulatory text. One 

commenter suggested that the sort of 

easily verifiable evidence envisioned in 

the rule is a fiction, pointing specifically 

to foreign legal records as problematic 

given the possibility that they are part 

of a pretextual prosecution. This 

commenter suggested that there is not a 

single situation of evidence that might 

appear to be easily verifiable where the 

asylum officer should be confident that 

they can consider that bar efficiently. 

Response: The Department notes that 

under current practice, AOs do not 

apply mandatory bars to eligibility for 

asylum and withholding of removal 

during fear screenings, but in cases 

where there is evidence a bar may 

apply, AOs note the possible 

applicability of the bar in the record. In 

some such cases, the evidence that a bar 

applies is clear. For example, a 

noncitizen undergoing a reasonable fear 

interview may have been ordered 

removed from the United States due to 

a conviction by a final judgment for an 

aggravated felony under 18 U.S.C. 1956 

(money laundering), if the amount of 

funds exceeds $10,000 and the 

noncitizen received a sentence of at 

least five years’ imprisonment. If DHS 

records confirm the noncitizen’s 

identity matches that of the convicted 

person, the noncitizen would clearly be 

barred from statutory withholding of 

removal due to their conviction for an 

aggravated felony under INA 

101(a)(43)(D), 8 U.S.C. 1101(a)(43)(D), 

and aggregate term of imprisonment of 

at least 5 years. See INA sec. 

241(b)(3)(B)(ii), (iv), 8 U.S.C. 

1231(b)(3)(B)(ii), (iv). This rule ends the 

practice of having the AO set aside the 

bar in making the reasonable fear 

determination in such a case and allows 

the AO to enter a negative 

determination if the noncitizen is 

unable to establish a reasonable 

possibility that the bar does not apply 

or is unable to establish a reasonable 

fear of torture. 

AOs must complete screenings 

efficiently and there is no incentive for 

them to consider bars in the absence of 

easily verifiable evidence. DHS believes 

the regulatory text, along with the 

guidance in this preamble and that of 

the NPRM, is sufficient to alert the 

public about how AOs will determine 

whether to consider mandatory bars in 

fear screenings without defining the 

terms ‘‘clearly ineligible’’ and ‘‘easily 

verifiable’’ in regulatory text. Although 


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87See USCIS, ‘‘RAIO Directorate—Officer 

Training: Mandatory Bars to Asylum’’ (May 9, 

2013). 

88Credible Fear Procedures Manual (CFPM), 

Section III.J; Reasonable Fear Procedures Manual 

(RFPM), Section III.I. 

89Credible Fear Procedures Manual (CFPM), 

Section III.K; Reasonable Fear Procedures Manual 

(RFPM), Section III.J. 90See 87 FR 18093–94. 

the Department acknowledges that the 

type of easily verifiable evidence 

envisioned by this rule may not be 

available in every case, DHS disagrees 

with the assertion that such evidence is 

never present in a case. AOs are trained 

to evaluate criminal convictions, 

including the possibility that an arrest 

or conviction may be the result of a 

pretextual prosecution.87 The rule 

provides that, where such easily 

verifiable evidence exists, the AO may 

consider gathering additional 

information about the possible 

application of a mandatory bar, 

including evidence of any exemption or 

exception to the bar that the noncitizen 

may present. 

Comment: A commenter suggested 

that noncitizens be provided with a 

complete copy of all information relied 

on by the AO in applying a bar to their 

claim. Another stated DHS should be 

required to provide evidence to the 

person seeking asylum regarding any 

potential bar in advance of the credible 

fear interview. 

Response: DHS believes the 

procedures under current regulations 

provide noncitizens sufficient 

information about the basis for the 

screening determination. Following the 

credible fear interview, noncitizens 

receive a copy of all the items required 

by regulation, including copies of the 

AO’s notes, the summary of the material 

facts, and other materials upon which 

the determination was based. 8 CFR 

208.30(f)–(g). In any case where the 

application of a mandatory bar to 

asylum or statutory withholding of 

removal is outcome determinative to the 

credible fear or reasonable fear 

determination, the AO will provide a 

written analysis related to the 

application of the mandatory bar in the 

record, which will be served on the 

noncitizen. If the noncitizen has a 

properly executed Form G–28 on file, a 

copy of the relevant documents will be 

provided to their legal representative.88

For negative determinations referred to 

the IJ for review, USCIS will file copies 

of outcome determinative documents 

with the immigration court.89

The Department declines to adopt the 

commenter’s suggestion related to 

sharing information in advance of a 

credible fear interview. USCIS does not 

share information that may relate to 

mandatory bars with noncitizens in 

advance of their screening 

determinations or asylum adjudications. 

Rather, when evidence related to a 

mandatory bar is known to USCIS, the 

noncitizen is given an opportunity to 

address the evidence during the 

interview. 8 CFR 208.9(e). When 

information related to a mandatory bar 

is present in the record for a credible 

fear or reasonable fear screening, the AO 

will ask the noncitizen about the 

information, and the noncitizen will be 

given an opportunity to address any 

concerns and provide evidence that the 

mandatory bar does not apply. 

Comment: A commenter wrote that it 

is inappropriate to allow AOs to 

consider bars to statutory withholding 

of removal because AOs do not make 

decisions on applications for 

withholding of removal. Commenters 

noted the difference in treatment of 

aggravated felonies in relation to the 

particularly serious crime bar to 

withholding of removal under INA sec. 

241(b)(3)(B)(ii), 8 U.S.C. 1231(b)(3)(B)(ii) 

and the particularly serious crime bar to 

asylum under INA sec. 208(b)(2)(A)(ii), 

8 U.S.C. 1158(b)(2)(A)(ii). 

Response: DHS acknowledges that in 

the context of the particularly serious 

crime bar to withholding of removal, the 

statute requires that noncitizens 

convicted of aggravated felonies for 

which the noncitizen has been 

sentenced to an aggregate term of 

imprisonment of at least 5 years be 

considered to have been convicted of 

particularly serious crimes, while 

leaving to the Attorney General’s 

discretion the ability to consider as 

particularly serious crimes convictions 

for aggravated felonies for which the 

noncitizen has been sentenced to an 

aggregate term of imprisonment of less 

than 5 years. INA sec. 241(b)(3)(B), 8 

U.S.C. 1231(b)(3)(B). The particularly 

serious crime bar to asylum contains no 

such discretion, requiring that 

noncitizens convicted of any aggravated 

felony, without reference to any 

sentence imposed, be considered to 

have committed a particularly serious 

crime. INA sec. 208(b)(2)(B)(i), 8 U.S.C. 

1158(b)(2)(B)(i). An AO encountering a 

noncitizen in a fear screening with a 

conviction for an aggravated felony for 

which a sentence of less than 5 years 

was imposed would likely be unable to 

efficiently address the particularly 

serious crime bar to statutory 

withholding of removal and would 

therefore not exercise their discretion to 

consider the bar. 

However, DHS disagrees that it is 

inappropriate as a general matter for 

AOs to consider bars to statutory 

withholding of removal in fear 

screenings. As noted above, the five bars 

to statutory withholding of removal that 

AOs may consider under this rule 

generally correspond to five of the six 

mandatory bars to asylum, on which 

AOs receive training and which they 

consider in affirmative asylum and 

asylum merits (AMI) adjudications. See 

INA secs. 208(b)(2)(A)(i)–(v), 

241(b)(3)(B)(i)–(iv) and (b)(3)(B), 8 

U.S.C. 1158(b)(2)(A)(i)–(v), 

1231(b)(2)(B)(i)–(iv) and (b)(3)(B). 

Moreover, AOs conducting AMIs also 

make determinations on eligibility for 

statutory withholding of removal 

pursuant to 8 CFR 208.16, including the 

consideration of bars at 8 CFR 

208.16(d)(2). 8 CFR 208.9(b). Therefore, 

DHS is confident in AOs’ ability to 

exercise their discretion to consider and 

correctly apply bars to statutory 

withholding of removal in credible fear 

and reasonable fear screenings. 

Comment: Some commenters 

recommended requiring AOs to 

consider bars in fear screenings. One 

commenter suggested that leaving such 

consideration to the discretion of AOs 

where there is easily verifiable evidence 

of a bar and the AO is confident they 

can address the bar efficiently, fails to 

consider the years that otherwise 

inadmissible noncitizens would spend 

in the country if referred to removal 

proceedings and the additional fiscal 

and time burdens to ICE and EOIR to 

handle such cases. These burdens, the 

commenter argued, create strains on 

public resources and potential danger to 

officers. 

Response: DHS disagrees that 

requiring AOs to apply bars in fear 

screenings in all cases would 

necessarily reduce the burdens on ICE, 

EOIR, or public resources. Imposing a 

blanket requirement for AOs to consider 

bars in fear screenings would result, in 

many cases, in protracted screening 

interviews to fully explore the complex 

factual and legal considerations that 

often arise in connection with bars to 

asylum and statutory withholding of 

removal.90 Doing so would reduce the 

number of fear screenings DHS is able 

to conduct, resulting in more 

noncitizens being referred for section 

240 removal proceedings without any 

screening at all. While DHS appreciates 

the commenter’s concern for officer 

safety, the Department is confident in its 

ability to protect its personnel, and the 

commenter provides no evidence to 

indicate otherwise. 

8. Burden and Standard of Proof 

Comment: A commenter wrote in 

support of requiring individuals in the 


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91The same is true in removal proceedings under 

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

240(c)(4)(A), 8 U.S.C. 1229a(c)(4)(A). 

92See USCIS, RAIO Directorate—Officer 

Training: Evidence (Apr. 24, 2024). USCIS will 

develop additional training on this rule prior to its 

implementation, including guidance on standards 

of proof for AOs tasked with implementing the rule. 

asylum process to bear the burden of 

proof, reasoning that if the individual’s 

claim is real, they could easily provide 

the evidence. Commenters suggested 

that the government should bear the 

burden of proof to demonstrate the 

applicability of any bars, rather than 

requiring noncitizens to bear the burden 

of proof. 

Response: The Department agrees to 

the extent that it is appropriate to 

require noncitizens to bear the burden 

of proof to demonstrate they have a 

credible fear or reasonable fear 

determination, and notes that this is the 

current standard and will not change 

under this regulation. Under INA sec. 

291, 8 U.S.C. 1361, the burden of proof 

is generally on the person requesting an 

immigration benefit to establish their 

eligibility for the benefit.91 Because 

mandatory bars to asylum and 

withholding of removal exclude 

noncitizens from eligibility for those 

forms of relief or protection, noncitizens 

must demonstrate that such bars do not 

apply according to the relevant legal 

standard. The purpose of fear screenings 

is to identify noncitizen who may be 

eligible for particular benefits or forms 

of relief or protection from removal, and 

it is consistent with the INA to place the 

burden of proof on noncitizens to 

establish a bar considered by the AO in 

the fear screening does not apply. 

DHS believes it is reasonable in fear 

screenings to require noncitizens to bear 

the burden of proof to demonstrate at 

the applicable standard that a 

mandatory bar, if considered, does not 

apply to them. This approach is 

consistent with requiring noncitizens in 

credible fear and reasonable fear 

screenings to demonstrate at the 

applicable standard that they could 

establish, in a proceeding on the merits, 

eligibility for asylum or that they would 

be persecuted on account of a protected 

ground. The commenters’ suggestion 

would represent a departure from this 

longstanding framework and introduce a 

burden-shifting element that could 

unnecessarily complicate and prolong 

screening interviews. DHS also notes 

that requiring noncitizens to bear the 

burden of proof in credible fear and 

reasonable fear screenings to 

demonstrate a bar, if considered, does 

not apply them, is analogous to the 

requirement in proceedings on the 

merits that applicants bear the burden of 

proof to demonstrate eligibility for any 

immigration benefit or relief sought 

under INA sec. 291, 8 U.S.C. 1361. 

Comment: One commenter, in noting 

that a noncitizen whom an AO 

determines may be a threat to national 

security would be given the opportunity 

to show that they are not, stated that it 

is extremely difficult to prove one is not 

a threat. 

Response: AOs conducting fear 

screenings would only consider a 

mandatory bar in those cases where 

there is easily verifiable evidence 

available to the AO that a mandatory bar 

may apply, and the AO can consider 

that bar efficiently at the credible fear 

stage. The rule would not require 

noncitizens to prove generally that they 

are not a threat. Rather, it allows AOs 

the discretion to consider particular 

statutory bars to asylum and 

withholding of removal where evidence 

that such a bar may apply exists and is 

easily verifiable. The Department 

considers it fair and appropriate to 

provide such discretion to AOs and to 

remove noncitizens without a legal basis 

to remain in the United States when 

screenings determine they would not be 

able to establish eligibility in a full 

merits hearing before an immigration 

judge or AMI before an AO. 

Furthermore, noncitizens already bear 

the burden of proof in merits 

determinations to demonstrate a bar 

does not apply. The commenter did not 

explain how allowing AOs to consider 

mandatory bars in fear screenings is 

more problematic than this current 

posture. 

Comment: Commenters asserted that 

the rule requires noncitizens in fear 

screenings to meet the preponderance of 

the evidence standard to demonstrate a 

bar does not apply. Commenters 

indicated the significant possibility 

standard should apply uniformly to all 

aspects of credible fear interviews. A 

commenter asserted that allowing the 

consideration of bars to asylum and 

statutory withholding of removal in the 

context of other recent rulemakings that 

provide for different standards of proof 

for the different forms of relief for which 

noncitizens are screened in credible fear 

interviews will create confusion and 

increase the risk of erroneous fear 

determinations. One commenter wrote 

that the differing standards for 

consideration of exceptions to the 

mandatory bars—a significant 

possibility for an exception to an 

asylum bar and a reasonable possibility 

for an exception to a statutory 

withholding of removal bar—will create 

confusion among noncitizens and AOs 

and increase the likelihood of erroneous 

determinations. 

Response: The rule does not require 

noncitizens in fear screenings to meet 

the preponderance of the evidence 

standard to demonstrate a bar does not 

apply. Rather, in credible fear 

screenings under 8 CFR 208.30, it 

requires them to show a significant 

possibility that they would be able to 

demonstrate by a preponderance of the 

evidence (in the context of a full merits 

hearing) that a mandatory bar to asylum 

does not apply. 8 CFR 208.30(e)(5)(ii)(A) 

and (B). Noncitizens screened for 

statutory withholding of removal under 

the application of the CLP rule’s 

presumption of ineligibility for asylum 

must demonstrate that there is a 

reasonable possibility that no 

mandatory bar applies, if the AO has 

considered the applicability of a bar. 8 

CFR 208.33(b)(2)(i). Noncitizens subject 

to the Securing the Border rule’s 

limitation on asylum eligibility must 

demonstrate a reasonable probability. 8 

CFR 208.35(b)(2), 208.33(b)(2)(i). In the 

reasonable fear context, if the AO 

considers the applicability of a bar, the 

noncitizen must demonstrate there is a 

reasonable possibility that the bar does 

not apply. 8 CFR 208.31(c). All of these 

standards are lower than the 

preponderance of the evidence standard 

applicable to asylum applications being 

considered in full merits hearings. 

DHS disagrees that screening for 

mandatory bars under varying standards 

of proof will create confusion and 

increase the risk of erroneous screening 

determinations. As stated above, AOs 

are trained to properly apply the 

different standards of proof in screening 

interviews and full adjudications,92 and 

AOs and have extensive experience 

applying different standards in the 

course of a case and across their 

workloads. The non-adversarial nature 

of screening interviews, along with the 

AO’s duty to elicit testimony from 

noncitizens and examine other evidence 

in the record, including the results of 

security checks and country conditions, 

combined with 100-percent supervisory 

review of screening determinations and 

the availability of immigration judge 

review for negative determinations, all 

ensure the correct standard of proof is 

applied to the various forms of relief 

being screened in credible fear and 

reasonable interviews and minimize the 

risk of erroneous determinations. 

DHS disagrees that shifting standards 

of proof applied during fear screenings 

will create prejudicial confusion among 

noncitizens. AOs are trained to elicit all 

relevant information from the 

noncitizen, including eliciting 

testimony to assist the noncitizen with 


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93See id.; see also USCIS, ‘‘RAIO Directorate— 

Officer Training: Interviewing—Eliciting 

Testimony’’ (Apr. 24, 2024); USCIS, ‘‘RAIO 

Directorate—Officer Training: Evidence’’ (Apr. 24, 

2024). 

meeting their burden of proof in a given 

determination or adjudication.93 The 

comment appears to contemplate a 

noncitizen calibrating their response to 

an inquiry based on the standard of 

proof, rather than working with the AO 

to provide all the available evidence on 

an issue. Given the non-adversarial 

nature of screening interviews and AOs’ 

duty to elicit the testimony needed to 

determine whether a noncitizen has met 

the applicable standard of proof, DHS 

believes the commenter misapprehends 

the dynamics of screening interviews. 

DHS acknowledges the commenter’s 

suggestion that the significant 

possibility standard should apply 

uniformly to all aspects of credible fear 

interviews. However, this rule does not 

change the standards applicable in 

credible fear interviews. 

DHS acknowledges that the CLP rule 

and Securing the Border Interim Final 

Rule (IFR) and final rule impacted the 

credible fear review procedures (but not 

reasonable fear procedures), including, 

in some cases, the standards of proof 

applicable to certain noncitizens in 

credible fear screenings. See 8 CFR 

208.33(b), 208.35(b). DHS and DOJ 

explained in the CLP and Securing the 

Border rules why the reasonable 

possibility and reasonable probability 

standards, respectively, are needed in 

the context of screening for statutory 

withholding of removal and CAT 

protection, even though it might be 

more straightforward to apply the 

significant possibility standard across 

the board. This rule, however, does not 

make any further changes to these 

standards of proof, nor were such 

changes proposed in the NPRM. Instead, 

it maintains the status quo. 

DHS disagrees that providing 

discretion to AOs to consider bars in 

fear screenings in the context of the 

varying standards of proof implemented 

by these other rules will cause 

confusion and result in erroneous fear 

determinations. AOs have been 

effectively implementing the CLP rule 

for over a year and have demonstrated 

their ability to apply the significant 

possibility and reasonable possibility 

standards accurately in accordance with 

DHS regulations. Early indications 

suggest the same for the Securing the 

Border IFR and final rule. DHS has no 

reason to believe that providing AOs the 

discretion to consider mandatory bars in 

fear screenings where information 

makes it clear that a bar may apply, and 

the AO can analyze the bars efficiently, 

will undermine the integrity of these 

screenings. 

Furthermore, this rule does not 

require noncitizens undergoing fear 

screenings where bars are considered to 

demonstrate by a preponderance of the 

evidence that the bars do not apply. 

That is the standard of proof to 

demonstrate eligibility for asylum in a 

full merits hearing or AMI, not in the 

credible fear context. The standards of 

proof applicable to the consideration of 

bars in fear screenings will remain the 

same as those for the other eligibility 

criteria for the forms of relief or 

protection considered in credible fear 

and reasonable fear screenings under 

current regulations. 

Comment: A commenter stated that 

the ‘‘reasonable probability’’ standard 

implemented under the Securing the 

Border IFR would create a difficult 

standard to administer and understand, 

and that under the IFR, certain 

noncitizens will be screened under a 

higher standard than that applied to 

similarly situated noncitizens under the 

CLP rule. The commenter wrote that the 

‘‘reasonable probability’’ standard does 

not appear in the INA and is not defined 

clearly. Commenters noted that DHS’s 

new regulations have created 

overlapping and inconsistent legal 

standards and were unsure whether this 

rule would conform to the IFR standard. 

Response: This rule does not propose 

changes to the substantive screening 

standards by which AOs make their fear 

determinations. See generally 89 FR at 

41347–61. Instead, this rule amends the 

regulations to provide AOs discretion to 

consider mandatory bars at the 

appropriate standard of proof that 

applies to the type of screening they are 

conducting. 

Regarding the ‘‘reasonable 

probability’’ standard specifically, as 

discussed above in Section I.B, the 

Securing the Border IFR established that 

standard at 8 CFR 208.35(b)(2). 

Specifically, in cases where the AO first 

finds that the noncitizen is subject to 

the Securing the Border limitation on 

asylum eligibility and accordingly does 

not have a credible fear with respect to 

the noncitizen’s asylum claim, the AO 

then assesses whether the noncitizen 

has established a ‘‘reasonable 

probability’’ of persecution or torture for 

the purposes of eligibility for 

withholding of removal or protection 

under the Convention Against Torture. 

8 CFR 208.35(b)(2). When this rule is 

implemented, the AO may consider the 

applicability of the covered mandatory 

bars as part of this ‘‘reasonable 

probability’’ determination in cases 

where the Securing the Border rule’s 

limitation on asylum eligibility is found 

to apply. Should the Securing the 

Border rule’s limitation on asylum 

eligibility not apply to a noncitizen in 

a credible fear screening, either because 

there is a significant possibility the 

noncitizen could demonstrate either 

they are not subject to the limitation or 

they are eligible for an exception to the 

limitation, the AO would consider the 

mandatory bars under this rule at the 

‘‘significant possibility’’ standard in line 

with credible fear determinations made 

pursuant to 8 CFR 208.30, or, if 

appropriate, the ‘‘reasonable 

possibility’’ standard, if the noncitizen 

is subject to a presumption of asylum 

ineligibility under 8 CFR 208.33. 

In all cases, the AO will only consider 

mandatory bars under this rule as a 

matter of discretion and only when 

there is easily verifiable information 

that a mandatory bar applies to the 

noncitizen and when the AO can handle 

the issue efficiently at the screening 

stage. 

To the extent that commenters’ 

concerns regard the merits of the 

‘‘reasonable probability’’ standard in 

general, such concerns are outside the 

scope of this rule. Comments regarding 

the reasonable probability standard are 

addressed in Section III.C.3 of the 

Securing the Border final rule preamble. 

87 FR at 81245–50. 

9. Other General/Mixed Feedback and 

Suggested Alternatives 

Comment: One commenter stated that 

while they understand the rule’s 

intention to streamline the asylum 

process and uphold the integrity of the 

immigration system, they have 

recommendations for improvements. 

The commenter suggested increased 

training for AOs to better understand 

global issues, exceptions to applicability 

of the rule for specific vulnerable 

populations, access to legal counsel in 

the screening process, increased 

transparency around the screening 

process, and periodic review and public 

reporting on the rule’s impact. One 

commenter expressed concern that 

noncitizens may face exploitation, and 

many other commenters suggested 

increasing capacity and resources, 

including AOs and immigration judges, 

so that noncitizens face shorter wait 

times and receive thorough interviews. 

One commenter suggested that 

increased use of Temporary Protected 

Status, parole processes such as the 

processes for Cubans, Haitians, 

Nicaraguans, and Venezuelans, and 

humanitarian parole could reduce the 

number of border crossings. One 

commenter recommended that the 

Department disincentivize border 

crossings by expanding its use of 


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103398 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

94See USCIS, RAIO Directorate—Officer 

Training: Mandatory Bars (May 9, 2013); USCIS, 

RAIO Directorate—Officer Training: Interviewing— 

Introduction to the Non-Adversarial Interview (Apr. 

24, 2024); USCIS, RAIO Directorate—Officer 

Training: Interviewing—Eliciting Testimony (Apr. 

24, 2024); USCIS, RAIO Directorate—Officer 

Training: Interviewing—Working with an Interpreter 

(Apr. 24, 2024); USCIS, RAIO Directorate—Officer 

Training: Cross-Cultural Communication and Other 

Factors That May Impede Communication at an 

Interview (Apr. 24, 2024); USCIS, RAIO 

Directorate—Officer Training: Interviewing 

Survivors of Torture and Other Severe Trauma 

(Apr. 24, 2024). 

95See also Office of Information and Regulatory 

Affairs, OIRA Conclusion of E.O. 12866 Regulatory 

Review, Rin 1615–AC91, https://www.reginfo.gov/ 

public/do/eoDetails?rrid=524411 (last reviewed 

Sept. 26, 2024). 

96See Office of Information and Regulatory 

Affairs, Frequently Asked Questions: What is 

OIRA’s Role in the Rulemaking Process?, https://

www.reginfo.gov/public/jsp/Utilities/faq.myjsp#oira 

(last reviewed Sept. 26, 2024). 

expedited removal, rescinding ICE 

enforcement priorities memos, and 

raising the legal standards applied in 

screening cases. 

Response: The Department 

emphasizes that AOs are trained in 

asylum law, receive regular trainings in 

specific areas of asylum law, and are 

experienced in analyzing mandatory 

bars.94

The Department declines the 

suggestion to create exceptions to 

applicability of the rule for certain 

vulnerable populations because all 

applicants for asylum, regardless of 

population, are subject to all mandatory 

bars. 

An explanation of access to counsel in 

the screening process is provided in 

section 2(b), due process concerns, of 

this rule. 

The Department appreciates the 

suggestion to increase transparency and 

provide periodic review and public 

reporting on the rule’s impact. USCIS 

already provides certain asylum 

statistics to the public through its 

website and reports to Congress on a 

variety of immigration initiatives and 

statistics. The Department will take this 

suggestion under consideration. 

The Department also continues to use 

a variety of processes, including parole, 

to discourage unlawful entries into the 

United States and safeguard against 

exploitation of noncitizens. 

The Department acknowledges the 

recommendation to increase capacity 

and resources by hiring more AOs and 

immigration judges. The Department 

continues to expand its workforce to 

meet the growth in immigration benefit 

applications and requests, but staffing 

and hiring of AOs is out of the scope of 

this rule, as is the staffing and hiring of 

immigration judges, which is managed 

by the Department of Justice. This rule 

is intended to provide DHS additional 

operational flexibility in screening 

determinations and, as explained in the 

NPRM preamble, the Department 

anticipates that it will also expand its 

ability to more quickly remove 

noncitizens who present national 

security or public safety threats, may 

provide efficiencies for ICE Office of the 

Principal Legal Advisor (OPLA) and ICE 

Enforcement and Removal Operations 

(ERO), and may reduce referrals to EOIR 

in cases in which a negative fear 

determination can be made at the 

screening stage for an individual who 

the Department would otherwise place 

into potentially lengthy proceedings in 

immigration court, including possible 

appeals to the BIA. 

Certain suggestions, specifically those 

to disincentivize unlawful border 

crossings by expanding the use of 

expedited removal and removing ICE 

enforcement priorities, are outside the 

scope of this rule. This rule 

encompasses USCIS regulations and 

procedures and does not amend ICE 

regulations and procedures. 

Finally, regarding the suggestion to 

increase the legal standards applied in 

screening cases in order to 

disincentivize unlawful border 

crossings, the Department emphasizes 

that this rule does not affect the 

standard of proof applicable in 

screening procedures. Furthermore, the 

intent of this rule is to increase 

efficiency and enhance public safety, 

rather than to function as a broader 

deterrence measure. 

Comment: A commenter stated that to 

speed removal of high enforcement 

priorities and reduce the EOIR pending 

caseload and the burden on OPLA and 

ERO, DHS failed to consider policies 

that it can exercise in its discretion to 

not prosecute non-priority cases at a 

greater scale. 

Response: DHS acknowledges the 

comment and has provided an estimated 

reduction in EOIR workload after the 

implementation of this rule. See section 

V.A.3.c of this preamble. The regulation 

will prevent noncitizens from entering a 

potentially years-long immigration court 

process in pursuit of relief for which 

they are ineligible, and it will allow 

DHS and EOIR resources that would 

have been expended on such processes 

to be conserved for potentially 

meritorious cases. However, the main 

purpose of this rule is not to reduce 

EOIR pending caseload or the burden on 

ICE OPLA and ERO. Instead, as 

explained in the NPRM and in this 

preamble, the purpose of this rule is to 

facilitate efficiency in the expedited 

removal process by providing AOs 

additional operational discretion to 

choose to apply certain mandatory bars 

during fear screenings. The commenter’s 

suggestions are outside the scope of this 

rule. 

E. Other Issues Relating to the Rule 

1. Coordination With DOJ in the 

Rulemaking 

Comment: A commenter suggested 

that the lack of a corresponding 

proposed rule by DOJ demonstrates that 

DHS failed to coordinate with EOIR, 

undermining DHS’s claims that the rule 

will promote efficiency and consistency 

and betraying a lack of preparedness to 

promulgate a final rule. Similarly, 

another commenter suggested that the 

lack of a corresponding DOJ rule 

highlights the irregular nature of this 

proposed rulemaking. 

Response: As an initial matter, the 

Department emphasizes that it has the 

authority to pursue this rulemaking 

independently and without a 

corresponding rule issued by DOJ. As 

the rule pertains to the procedures AOs 

follow, no DOJ rule is necessary to 

implement the changes described in the 

rule. 

Nevertheless, DHS emphasizes that 

DOJ was consulted during the 

development of the NPRM and this rule. 

As a significant rule, OIRA conducted a 

review of this rule under Executive 

Order 12866. 58 FR 51735 (Oct. 4, 

1993).95 OIRA review includes the 

coordination of interagency Executive 

Branch review of significant rules, 

including review by the Department of 

Justice.96

Finally, as noted in the NPRM, DOJ 

may issue its own separate rule to 

clarify the procedures immigration 

judges will follow when reviewing the 

findings of AOs in credible fear or 

reasonable fear review proceedings. 89 

FR at 41355 n.37. 

Comment: One commenter suggested 

that the lack of a corresponding 

rulemaking by the DOJ may cause 

immigration judges to waste valuable 

time and resources trying to 

comprehend whether they are required 

to apply the rule and if so how to do so. 

Similarly, another commenter objected 

that the proposed rule does not contain 

any discussion of how or why this 

change will not impact review of a 

negative credible fear determination or 

whether that review will now 

encompass immigration judge review of 

a mandatory bar determination at this 

stage. A commenter also stated that the 

lack of a corresponding rule from the 


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97Security Bars and Processing, 85 FR 84160 

(Dec. 23, 2020). 

98See, e.g., OIRA, Spring 2024 Unified Agenda, 

Asylum Eligibility and Public Health (RIN 1615– 

AC57), https://www.reginfo.gov/public/do/eAgenda

ViewRule?pubId=202404&RIN=1615-AC57. 

DOJ leaves open the question of whether 

immigration judges have the authority 

to consider a mandatory bar in the first 

instance when reviewing negative 

credible fear screenings where the AO 

declined to consider a mandatory bar. 

Response: The procedures for 

immigration judge review of AOs’ 

credible fear and reasonable fear 

decisions are set out at 8 CFR 1003.42, 

1208.30, 1208.31, 1208.33, and 1208.35. 

In general, DHS notes that immigration 

judges have the authority to review 

negative credible fear and reasonable 

fear determinations of AOs de novo, and 

such review is available for all negative 

fear determinations. See, e.g., 8 CFR 

1003.42(d); 8 CFR 1208.30(g). Should 

DOJ determine that further clarity is 

needed, DHS again notes that the DOJ 

may issue its own rule to clarify the 

procedures for immigration judge 

review. 

2. Security Bars Rulemaking 

Comment: Some commenters wrote 

that it was not clear whether this rule 

would result in AOs applying the 

additional public-health related bars in 

the Security Bars final rule in fear 

screenings, should that rule go into 

effect. 

A commenter expressed concern that 

the proposed rule would interact with 

the Security Bars final rule when it goes 

into effect December 31, 2024, by 

reinforcing or endorsing the 

applicability of what the commenter 

characterized as that rule’s illegal 

interpretation of the security bars during 

credible and reasonable fear screenings. 

The commenter stated the Security Bars 

final rule is incompatible with nonrefoulement obligations under 

international law and the INA, citing 

case law and noting that there is no 

public health exception to nonrefoulement obligations. After 

recommending redrafting, the 

commenter encouraged DHS to at least 

amend the proposed rule to clarify that 

public health considerations would not 

be tasked to AOs under the proposed 

rule, suggesting a statement in both the 

rule and its preamble that it does not 

enable decisions of public health issues 

in the fear screening process under the 

guise of ‘‘security.’’ 

Another commenter expressed 

concern that the proposed rules could 

interact with the Security Bars final rule 

by complicating pre-screening 

procedures that are already highly 

complex and recommended that the 

Department rescind the Security Bars 

rule to avoid causing or worsening 

inefficiencies in the U.S. immigration 

system. 

A commenter wrote that the proposed 

rule could become more broadly 

applicable if the Security Bars final rule 

goes into effect as scheduled on 

December 31, 2024, and expressed 

concern that asylum opportunities 

would be severely limited as a result. 

The commenter urged the Department to 

rescind both the Security Bars final rule 

along with the proposed rule to provide 

greater support for noncitizens seeking 

protection in the United States. 

Finally, a commenter expressed 

concern that the proposed rule would 

automate the wrongful removal of 

asylum seekers if this proposed rule 

were finalized and the Security Bars 

final rule goes into effect. The 

commenter provided an example of a 

noncitizen who may be subject to a 

statutory bar to asylum due to the public 

health provision in the Security Bars 

final rule. 

Response: As an initial matter, DHS 

emphasizes that comments related to 

the substance, legality, merits, or other 

specific issues focused on the Security 

Bars final rule itself are outside the 

scope of this rulemaking. 

On December 23, 2020, DHS and DOJ 

jointly published the Security Bars final 

rule to clarify that the Departments may 

consider emergency public health 

concerns based on communicable 

disease (not limited to COVID–19) when 

determining whether a noncitizen is 

subject to the existing statutory bars to 

asylum and withholding of removal at 

INA secs. 208(b)(2)(A)(iv) and 

241(b)(3)(B)(iv), 8 U.S.C. 

1158(b)(2)(A)(iv) and 1231(b)(3)(B)(iv), 

for noncitizens for whom ‘‘there are 

reasonable grounds to believe’’ that they 

are ‘‘a danger to the security of the 

United States’’ (commonly known as the 

‘‘security bars’’).97 Specifically, the 

Security Bars final rule delineates 

certain circumstances when, in the 

context of a public health emergency 

under Federal law or regarding a 

communicable disease of public health 

significance as defined at 42 CFR 

34.2(b), a noncitizen would be ineligible 

for asylum under the statutory security 

bars. See 85 FR at 84193 (amending 8 

CFR 208.13(c)). 

The Security Bars Final Rule is 

scheduled to become effective on 

December 31, 2024. 87 FR 79789 (Dec. 

28, 2022). However, DHS emphasizes 

that DHS and DOJ continue to consider 

further action related to the security 

bars final rule,98 and OIRA received a 

rule on this topic on December 3, 2024 

for review under Executive Order 

12866. 

In addition, no public health 

emergency relevant to the Security Bars 

final rule currently exists. As a result, 

there would be no direct, immediate 

impact on eligibility for asylum or other 

protection if the Security Bars final rule 

were to go into effect because there is no 

existing relevant public health situation 

that would trigger the bars. 

As explained in the NPRM and 

elsewhere in this preamble, DHS 

considers it appropriate to provide AOs 

discretion to consider security- and 

public safety-related bars to asylum and 

statutory withholding of removal in fear 

screenings to facilitate the swift removal 

of noncitizens who pose security and 

public safety risks and are clearly 

ineligible for asylum or withholding of 

removal. DHS therefore declines to 

rescind this rule, limit AOs’ discretion 

regarding the statutory security bars, or 

provide other restrictions related to the 

statutory security bars, including the 

pending Security Bars final rule, in 

credible fear and reasonable fear 

screenings. 

Finally, the Department disagrees 

with the claim that the rule will 

‘‘automate’’ the removal of noncitizens 

if the Security Bars final rule also goes 

into effect. Under this rule, AOs 

consider any mandatory bar on a caseby-case basis with respect to the specific 

facts presented in a case. The AO will 

not automatically apply a bar in any 

case. 

3. Other Out of Scope Comments 

Comment: Commenters provided 

feedback and suggestions outside the 

scope of this rulemaking. Examples of 

these out-of-scope comments include 

the following. Commenters: 

• suggested if immigration lawyers 

are opposed to this regulation, they 

should provide their services for free. 

• stated that locals in Ecuador 

laughed and joked about a headline 

related to this rulemaking. 

• suggested building and staffing 

something like what was done at Ellis 

Island. 

• suggested creating a resettlement 

program for asylum seekers, while 

others suggested creating paths to 

citizenship for immigrants. 

• noted the positive impacts of 

immigrants on our nation and its 

economy. 

• urged that migrants be treated fairly 

and with dignity. 

• expressed opposition to President 

Biden’s Proclamation on Securing the 

Border. 


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99 58 FR 51735 (Oct. 4, 1993). 

100 76 FR 3821 (Jan. 21, 2011). 

• criticized purported shortcomings 

of the CBP One mobile app. 

• expressed concern for the wellbeing 

of LGBTQI+ persons and torture 

survivors. 

• urged a pathway to citizenship for 

Deferred Action for Childhood Arrivals 

students and their families. 

• urged Congress to build a more 

welcoming immigration system and 

provide increased legal representation 

for asylum seekers, additional resources 

for government entities that administer 

the immigration system, and more 

accessible pathways to citizenship. 

• stated that all criminals should be 

deported immediately. 

• called for hiring and training more 

immigration judges. 

Response: DHS acknowledges these 

comments but declines to address them, 

as they are outside the scope of this 

rulemaking. 

F. Statutory and Regulatory 

Requirements 

1. Administrative Procedure Act 

Comment: Commenters raised 

concerns that this rule violated the 

Administrative Procedure Act’s (APA’s) 

requirements, as set forth in 5 U.S.C. 

553(b) through (d). Commenters stated 

that the 30-day comment period was not 

sufficient and that, at a minimum, the 

comment period should have been 60 

days. Numerous commenters requested 

that DHS extend the comment period. In 

support, commenters referenced 

Executive Orders 12866 99 and 13563,100

both of which recommend providing the 

public a meaningful opportunity to 

comment with a comment period of not 

less than 60 days in most cases. 

Commenters stated that the NPRM’s 

complexity and length, its departure 

from long-standing agency policy, its 

interaction with other policy and 

regulatory issues, and its impact on 

asylum-seekers and those supporting 

them demonstrate the 30-day comment 

period was insufficient. 

Other commenters stated that 30 days 

was an insufficient period to collect 

information and evidence of the rule’s 

impact or to develop alternatives to the 

changes made by the rule, particularly 

because providing comments on the rule 

requires organizations to divert 

resources away from assisting migrants. 

Commenters disagreed with DHS’s 

statements that a 30-day comment 

period was reasonable and appropriate 

because the rule relates to a discrete 

topic, is relatively short, and has been 

addressed in multiple recent notice-andcomment rulemakings. Commenters 

stated that the proposed rule addresses 

a complex topic that involves Federal 

and international law, and that, because 

the rule did not provide sufficient 

notice of how AOs would exercise their 

discretion, the scope of the rule could 

not be determined. Commenters also 

stated that the rule interacts with recent 

regulatory and policy changes in 

complex ways that could not have been 

considered during earlier notice-andcomment rulemakings that addressed 

the same topic. Commenters specifically 

stated that additional time was needed 

to analyze the proposed rule in relation 

to the CLP rule including the 

ramifications of the proposed rule if the 

CLP rule is vacated or modified as a 

result of legal challenges against it, and 

in relation to the Securing the Border 

IFR, which was published and became 

effective during the comment period for 

this rule. 

Commenters also contend that 

because this rule repeals or reverses 

existing policy, DHS has a greater 

burden to justify providing a comment 

period that is shorter than the 60-day 

period that was provided for the 

Procedures for Credible Fear Screening 

and Consideration of Asylum, 

Withholding of Removal, and CAT 

Protection Claims by Asylum Officers 

rule, which rescinded regulations 

applying mandatory bars during 

credible fear screenings. 87 FR 18078 

(Mar. 29, 2022). 

Commenters stated that DHS justified 

the 30-day comment period, in part, on 

its stated interest in acting quickly to 

provide an additional tool and 

operational flexibility to more promptly 

remove noncitizens who pose public 

safety and national security risks. 

Commenters stated that the desire to act 

quickly cannot be a justification to 

shorten the comment period, and some 

commenters expressed concern that the 

process would not leave DHS sufficient 

time to fully consider public comments 

before issuing a final rule. Further, 

commenters asserted that DHS did not 

present evidence of an urgent security 

threat or other exigent circumstance, did 

not explain why it did not propose the 

rule earlier, and did not justify the 30- 

day period in consideration of its 

expectation that the affected population 

will be relatively small. 

Finally, commenters stated that the 

30-day comment period was not 

justified in view of the potential 

consequences of implementing the rule 

without sufficient consideration of 

public comments, namely, that an 

erroneous application of the bars could 

result in individuals being returned to 

countries where they face persecution or 

torture. 

Response: DHS disagrees with 

commenters’ statements that the 30-day 

comment period was inadequate and 

that the changes being made are overly 

complex, do not involve minimal 

regulatory changes, and do not relate to 

a discrete change describing when an 

AO has the discretion to consider 

certain mandatory bars earlier in the 

fear screening process than has 

normally been the case. 

The APA does not require a specific 

comment period length, see 5 U.S.C. 

553(b), (c), and although Executive 

Orders 12866 and 13563 recommend a 

comment period of at least 60 days, a 

60-day period is not required. The APA 

only requires that an agency provide 

interested persons ‘‘an opportunity to 

participate in the rule making through 

submission of written data, views, or 

arguments.’’ 5 U.S.C. 553(c). For 

example, the D.C. Circuit has stated 

that, although a 30-day period is often 

the ‘‘shortest’’ period that will satisfy 

the APA, such a period is generally 

‘‘sufficient for interested persons to 

meaningfully review a proposed rule 

and provide informed comment,’’ even 

when ‘‘substantial rule changes are 

proposed.’’ Nat’l Lifeline Ass’n v. FCC, 

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

(citing Petry v. Block, 737 F.2d 1193, 

1201 (D.C. Cir. 1984)). 

Here, the comment period spanned 30 

days, from May 13, 2024, through June 

12, 2024, which DHS believes was 

sufficient to allow for meaningful 

participation, as evidenced by the 

almost 4,300 public comments received, 

including numerous detailed comments 

from interested organizations. Many of 

the comments expressing opposition to 

this rule are similar in their nature and 

raise many of the same issues or 

concerns. The fact that the commenters 

raise the same issues and concerns 

reflects the narrow scope of the rule and 

a common recognition and 

understanding of the substance in the 

rule and the issues raised therein. There 

were also many instances of 

commenters providing more than one 

comment. Commenters who submitted 

more than one comment generally 

submitted an initial comment at the 

beginning of the comment period 

arguing against the 30-day comment 

period (during which the Department 

received a number of substantive 

comments on the proposed rule itself), 

and then submitted a subsequent 

comment later in the comment period 

commenting on additional issues they 

have with the proposed rule, but also 

reiterating many of the same comments 

and arguments that were previously 


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101See N. Carolina Growers’ Ass’n, Inc. v. United 

Farm Workers, 702 F.3d 755, 770 (4th Cir. 2012); 

California by & through Becerra v. U.S. Dep’t of the 

Interior, 381 F. Supp. 3d 1153, 1176 (N.D. Cal. 

2019). 

made in the initial comment. 

Submitting multiple comments in this 

way is an indication that commenters 

had sufficient time to provide comments 

and then revisit those comments during 

the course of the comment period. 

Additionally, many of the comments are 

duplicative and indicative of a mass 

mailing campaign, which demonstrates 

that the public had sufficient time to 

coordinate their efforts, collaborate on 

and draft uniform responses, 

disseminate such responses among 

interested individuals and 

organizations, and for those individuals 

and organizations to submit those 

comments in an organized and 

collective manner via the Federal 

Register. The number of comments 

received and the content of those 

comments all indicate that the public 

was provided the opportunity to, and 

did in fact, meaningfully engage with 

this rulemaking. 

DHS disagrees with the comments 

asserting that a 30-day comment period 

for a rule that reverses the existing 

policy—under which AOs do not apply 

mandatory bars during credible fear 

screenings—requires more justification. 

The cases cited in support of this 

assertion do not require that an agency 

provide a comment period equal to or 

greater than the period for the initial 

rule, nor do they impose heightened 

requirements for an agency’s decision to 

provide a shorter comment period for a 

rescission; rather, they identify the lack 

of parity in those rulemakings as a 

supporting factor for their conclusions 

that the agencies failed to satisfy the 

APA requirements for notice and 

comment.101 The Sixth Circuit 

examined these decisions and observed 

that ‘‘the feature of the challenged 

rescissions that ran afoul of the APA in 

both [cases] was the agency’s imposition 

of content restrictions on the comments 

that interested parties could submit 

during the comment window.’’ Chamber 

of Commerce of U.S. v. SEC, 115 F.4th 

740, 756 (6th Cir. 2024) (finding that the 

31-day comment period for a proposed 

rescission of a rule was sufficient under 

the APA, even though the initial 

rulemaking offered a 60-day comment 

period). There is no such content 

restriction at issue here. As stated 

above, the APA does not require a 

specific comment period length, see 5 

U.S.C. 553(b), (c). For the reasons 

described here and in the NPRM, DHS 

believes that the 30-day comment 

period provided the public a meaningful 

opportunity to participate. See 89 FR 

41347, 41358 (May 13, 2024) 

DHS reiterates that the rule does not 

involve an overly complex topic that 

necessitates a comment period beyond 

30 days. Fundamentally, the changes do 

not affect the substantive analysis of 

those bars, they only move forward the 

point in time at which certain 

mandatory bars will be considered and 

allow AOs to consider those certain 

mandatory bars during the fear 

screening process as a threshold issue, 

making the process more efficient. 

Additionally, DHS will provide subregulatory guidance to asylum officers 

regarding their exercise of discretion. 

The 30-day comment period also 

afforded adequate time for commenters 

to consider the combined effects of this 

rule with other DHS rules and policy 

changes. Commenters stated that 

additional time was needed to analyze 

the proposed rule in relation to the CLP 

rule, including the ramifications on the 

proposed rule if the CLP rule is vacated 

or modified as a result of pending legal 

challenges. The CLP rule became 

effective May 11, 2023, now over 15 

months ago. 88 FR 31314 (May 16, 

2023). DHS described in specific detail 

how this rule would interact with the 

CLP rule in section IV.C. of the NPRM. 

There it was explained that 8 CFR 

208.33(b)(2)(i) was being amended to 

provide AOs with the discretion to 

consider the applicability of the bars to 

withholding of removal contained in 

INA sec. 241(b), 8 U.S.C. 1231(b), when 

determining whether there is a 

reasonable possibility that the 

noncitizen would suffer persecution or 

torture in the country of removal. If an 

AO determines that the presumption of 

asylum ineligibility under the CLP rule 

applies, and there is evidence of a 

mandatory bar to withholding of 

removal and the noncitizen is unable to 

demonstrate there is a reasonable 

possibility that the mandatory bar does 

not apply, the AO may base a negative 

credible fear of persecution 

determination on a mandatory bar to 

statutory withholding of removal 

pursuant to 8 CFR 208.33 if there is 

evidence in the record that it would be 

more efficient to do so. 89 FR 41347, 

41357 (May 13, 2024). 

DHS also disagrees that the 30-day 

comment period prohibited 

commentators from considering the 

combined impact of this rule and the 

Securing the Border IFR, which was 

issued June 6, 2024, during the 

comment period for this rule and 

became effective on June 5, 2024. 89 FR 

48710 (June 7, 2024). This rule interacts 

similarly with the Securing the Border 

IFR as it does with the CLP rule, which 

has been in place since May 2023 and 

which uses the same general framework. 

As explained in the Securing the Border 

IFR, the ‘‘reasonable probability’’ 

standard would apply to determinations 

involving a noncitizen who is subject to 

the Securing the Border IFR’s limitation 

on asylum eligibility. 89 FR at 48739 

n.186. The Securing the Border IFR 

places a limitation on asylum eligibility 

for noncitizens who enter across the 

southern border in violation of the 

suspension and limitation on entry 

created by the June 3 Presidential 

Proclamation, unless they are excepted 

under section 3(b) of the Proclamation 

or eligible for an exception based on 

exceptionally compelling 

circumstances. 8 CFR 208.35(a), 

1208.35(a). Additionally, noncitizens 

who cross the southern border and are 

processed for expedited removal while 

the limitation is in effect will only be 

referred for a credible fear screening 

with an AO if they manifest or express 

a fear of return to their country or 

country of removal, a fear of persecution 

or torture, or an intention to apply for 

asylum. 8 CFR 235.15(b)(4). Finally, 

under the Securing the Border FR the 

United States will continue to adhere to 

its international obligations and 

commitments by screening individuals 

who manifest a fear and do not qualify 

for an exception to the Securing the 

Border rule for statutory withholding of 

removal and CAT protections at a 

‘‘reasonable probability’’ of persecution 

or torture standard—a standard that is 

higher than the ‘‘reasonable possibility’’ 

standard currently applied under the 

CLP rule. 8 CFR 208.35(b)(2), Again, this 

rule allows an AO the discretion to 

consider evidence indicating that a 

mandatory bar applies and to apply that 

mandatory bar during fear screening. 

Although DHS expressed a desire to 

act as quickly as possible to make this 

rule’s regulatory changes when 

explaining the 30-day comment period, 

the desire for quick action was not the 

sole justification for the 30-day 

comment period. Rather, in reviewing 

the nature of the rule and the fact that 

the rule was narrow in scope, addressed 

a discrete topic, and made modest 

changes to the regulatory text, DHS 

determined that a 30-day comment 

period would be sufficient for the public 

to engage with the rule, provide 

comments, and participate in the 

rulemaking. Having recognized that a 

30-day comment period is sufficient for 

meaningful public engagement, DHS 

expressed its desire to finalize the rule 

quickly to provide AOs with this 

additional tool to more promptly 


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remove noncitizens who pose public 

safety and national security risks, and 

thus set the comment period at 30 days. 

To the extent that commenters argue 

that a desire for swift action cannot be 

a valid consideration when setting the 

comment period, DHS disagrees. 

Although the Department expects that 

the number of cases when AOs would 

consider a mandatory bar under this 

rule to be relatively small, as discussed 

further below in Section V.A.1, DHS 

believes it is important to act 

expeditiously to increase efficiency 

wherever possible, especially in light of 

the current strains on processing and 

capacity at the southern border. See 

generally 89 FR 48710 (June 7, 2024) 

(DHS and DOJ describing the emergency 

circumstances necessitating the 

Securing the Border IFR). 

Finally, the length of the comment 

period, whether 30 days or longer, has 

no bearing on the amount of time or 

level of consideration that DHS will give 

when evaluating, addressing, and 

responding to public comments before 

issuing a final rule. DHS has carefully 

and appropriately considered the 

comments it received from the public on 

this rule. 

Comment: Commenters stated that 

DHS failed to consider significant 

reliance interests engendered by legal 

service organizations under the existing 

policy and detrimental impacts that the 

proposed rule would have on those 

organizations. 

Commenters stated that legal service 

providers that assist noncitizens during 

fear screenings have relied on the 

previous policy—under which 

screenings did not entail adjudication of 

legally and factually complex matters, 

such as the application of mandatory 

bars—in developing their internal 

protocols, preparing informational 

materials, and delivering legal services 

to clients during credible and 

reasonable fear screenings. They stated 

that the changes will require legal 

services providers to dedicate financial 

and human resources to train their staff 

and volunteers and to revise, translate, 

and publish updated guidance for 

noncitizens. 

A legal services provider commented 

that it would be adversely impacted as 

an organization that primarily serves 

noncitizens whose cases are being 

processed at an asylum office. The 

commenter stated that implementing the 

rule would likely result in more 

experienced AOs being detailed away 

from the local asylum office to conduct 

screening interviews at the southwest 

border, which would leave fewer, or less 

skilled, AOs in the local asylum office. 

Consequently, the commenter stated 

that cases would be processed more 

slowly in asylum offices, exacerbating 

existing backlogs. The commenter also 

stated that these changes would disrupt 

allocation of finite resources for nonprofit organizations and that the 

increased complexity and processing 

times would increase the difficulty of 

recruiting pro bono attorneys and 

constrain its ability to serve potential 

clients. 

Another commenter stated that 

because its legal services program is 

primarily designed to assist asylum 

seekers after they have been placed in 

full removal proceedings, it has a 

reliance interest in ensuring that 

noncitizens with asylum claims are able 

to pass their fear screenings. 

Response: DHS has broad authority to 

establish and amend regulations and to 

take other actions ‘‘necessary for 

carrying out’’ the Secretary’s authority 

to administer and enforce the 

immigration laws. See INA sec. 

103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3) 

(granting the Secretary the authority to 

establish regulations and take other 

actions ‘‘necessary for carrying out’’ the 

Secretary’s authority under the 

immigration laws); see also 6 U.S.C. 202 

(authorities of the Secretary); Motor 

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

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 

42 (1983) (emphasizing that agencies 

‘‘must be given ample latitude to adapt 

their rules and policies to the demands 

of changing circumstances’’ (quotation 

marks omitted)); and see Section II of 

this preamble. 

When an agency changes a policy 

position, it must provide a reasoned 

explanation for the change, but ‘‘need 

not always provide a more detailed 

justification than what would suffice for 

a new policy created on a blank slate,’’ 

so long as it can show ‘‘good reasons’’ 

for the change. FCC v. Fox Television 

Stations, Inc., 556 U.S. 505, 515 (2009). 

If the established policy has engendered 

serious reliance interests, the agency’s 

reasoned explanation must take those 

interests into account. Id. 

DHS has considered the commenters’ 

asserted reliance interests but believes 

that their concerns do not outweigh 

DHS’s reasons for implementing these 

changes. As discussed in the NPRM, see 

89 FR 41347, 41350 (May 13, 2024), the 

applicability of mandatory bars during 

credible fear screenings has been the 

subject of numerous regulatory actions 

since 2020, including the Global 

Asylum rule, the Security Bars rule, and 

the Asylum Processing IFR. Although 

the Global Asylum rule did not go into 

effect because of the preliminary 

injunction against implementation of 

the Global Asylum Rule, and the 

Security Bars rule has not yet gone into 

effect because the Departments have 

delayed its effective date, their 

promulgation weighs against 

commenters’ assertions of long-settled 

reliance interests in the status quo. See 

Pangea Legal Servs. v. DHS, 512 F. 

Supp. 3d 966, 977 (N.D. Cal. 2021). DHS 

and DOJ published the Asylum 

Processing IFR rescinding the 

requirement to apply mandatory bars 

during credible fear screenings on 

March 29, 2022, and it became effective 

on May 31, 2022. See 87 FR 18078 (Mar. 

29, 2022). During the 2-year period 

between publication of the Asylum 

Processing IFR and the publication of 

the NPRM for this rule, the Departments 

published and implemented the CLP 

rule, which made significant changes to 

credible fear screenings. 88 FR 31314 

(May 16, 2023). Although the CLP rule 

did not alter the practice of not applying 

mandatory statutory bars at the credible 

fear stage, it did establish a rebuttable 

presumption of asylum ineligibility that 

AOs apply, when applicable, during 

credible fear screenings. These recent 

changing circumstances undermine the 

assertions that legal service providers 

have engendered significant reliance 

interests under the current policy. 

Rather, changing circumstances 

involving irregular immigration and the 

efforts DHS has employed to respond to 

the issue at the southwest land border 

demonstrate that the processes and 

procedures surrounding credible fear 

screenings remain fluid as DHS 

continues to respond to these 

challenges; as a result, the opportunity 

to develop a strong reliance interest in 

the status quo when it comes to the 

credible fear screening process is 

limited. 

DHS acknowledges that policy 

changes often require training and other 

efforts within organizations, including 

its own. See section IV of this preamble, 

explaining the training that AOs will 

receive upon implementation of this 

rule. Nonetheless, these impacts do not 

alone preclude an agency from changing 

its position when it has good reasons to 

do so. In the NPRM for this rule, DHS 

described the reasons why the 

Department had pursued the different 

regulatory changes affecting the 

application of mandatory bars during 

fear screenings. See 89 FR 41347, 

41353–54 (May 13, 2024). The common 

thread between these changes has been 

the Department’s pursuit of greater 

efficiency in the fear screening process 

in furtherance of Congress’ intent that 

the administrative removal processes be 

swift. See 85 FR 36264, 36272; 85 FR 

41201, 41210; 87 FR 18078, 18134–36; 


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102USCIS, ‘‘Credible Fear Procedures Manual,’’ 

Section III.E, https://www.uscis.gov/sites/default/ 

files/document/guides/CredibleFearProcedures

Manual.pdf (last accessed July 31, 2024). 

and 89 FR 41347, 41351. DHS’s position 

on the application of mandatory bars 

during credible fear screenings has 

evolved since implementing the CLP 

rule, and the NPRM for this rule 

explained that the Department 

identified a previously unconsidered 

alternative that would decrease the costs 

of applying the mandatory bars while 

maintaining many of the benefits— 

namely, conducting a factual and legal 

inquiry into the bars only in those cases 

for which doing so is likely to be an 

efficient and appropriate use of 

resources. 89 FR 41347, 41354 (May 13, 

2024). DHS believes that the anticipated 

benefits of this rule outweigh the 

commenters’ concerns for the 

administrative impact on their 

organizations. 

DHS also disagrees that some of the 

claimed reliance interests are 

cognizable. The assertion that this rule 

will increase backlogs or other staffing 

changes at local asylum offices and, 

ultimately, impede legal service 

providers’ ability to serve their clients is 

based on a series of suppositions about 

the rule’s effects on asylum office 

operations and staffing. Without factual 

support for the hypothetical chain of 

events, the Department finds this 

comment to be unpersuasive. 

The comment asserting legal service 

providers’ reliance interest in ensuring 

that noncitizens with asylum claims are 

able to pass their fear screenings does 

not explain how implementation of this 

rule would upset that claimed interest. 

As the NPRM states, this rule will allow 

DHS to quickly screen out certain nonmeritorious protection claims by 

allowing AOs to promptly issue 

negative fear determinations in cases in 

which there is easily verifiable evidence 

indicating that the noncitizen could be 

subject to a bar; the noncitizen is unable 

to establish, at the relevant standard, 

that the bar would not apply; and the 

noncitizen is not otherwise able to 

establish a credible or reasonable fear of 

torture. See 89 FR 41347, 41351 (May 

13, 2024). The regulation will prevent 

noncitizens from entering a potentially 

years-long immigration court process in 

pursuit of relief for which they are 

ineligible, and it will allow DHS and 

EOIR resources that would have been 

expended on such processes to be 

conserved for potentially meritorious 

cases. Id. It is unclear how such an 

outcome would adversely impact a legal 

services organization that serves 

noncitizens in immigration court 

proceedings or what reliance interest 

would have been engendered under the 

status quo. 

2. Regulatory Impact Analysis Impacts 

and Benefits (E.O. 12866 and E.O. 

13563) 

a. Impacts to Noncitizens (e.g., 

Individuals in the Credible Fear or 

Reasonable Fear Process) 

Comment: A commenter stated that 

the proposed provisions in the NPRM 

will make a marginal reduction in EOIR 

pending caseload at the cost of the 

broader impact on asylum seekers. The 

commenter further added that the 

process of applying mandatory bars is 

extremely complex factually and legally 

and will lead to erroneous negative 

credible fear and reasonable fear 

determinations with no legal recourse 

available to asylum seekers. 

Response: The final rule allows AOs 

the discretion to consider particular 

statutory bars to asylum and statutory 

withholding of removal where evidence 

that such a bar may apply is easily 

verifiable. The final rule will enable the 

Department to more swiftly remove 

individuals who are not eligible for 

protection in the United States based on 

national security or public safety 

concerns, preventing such cases from 

using valuable government resources to 

complete their adjudication beyond 

screening determinations. DHS 

considers it fair and appropriate to 

provide such discretion to AOs and to 

remove noncitizens without a legal basis 

to remain in the United States when 

screenings determine they would not be 

able to establish eligibility in a full 

merits hearing before an immigration 

judge or an AMI before an AO. As 

explained in section IV.B.2.b of this 

preamble, DHS has assessed that the 

possibility of erroneous removals is low. 

In analyzing any evidence that a bar to 

asylum or statutory withholding of 

removal may apply, this rule would 

allow AOs the flexibility to choose to 

consider a bar based on the individual 

facts and circumstances and information 

available to the AO to avoid erroneous 

negative determinations. Nothing in this 

rule alters the ability of a noncitizen 

who is the subject of a negative credible 

fear or reasonable fear determination to 

seek review of such determination by an 

immigration judge. 

Comment: A commenter stated that 

the NPRM will lead to longer detention 

times and increase likelihood of family 

separation due to disparities in credible 

fear determinations among family 

members and an increase in negative 

credible fear determinations. Another 

commenter stated that the rule could 

lead to family separations and 

disregards the impact on vulnerable 

families. 

Response: Commenters’ concerns 

regarding the impact of this rule on 

family separations are highly 

speculative. The current regulations 

provide a process for the consideration 

of family units in expedited removal. 

Specifically, under 8 CFR 208.30(c), a 

spouse or child of a principal asylum 

seeker who arrived in the United States 

concurrently with the principal asylum 

seeker is included in that asylum 

seeker’s positive credible fear evaluation 

and determination, unless the principal 

asylum seeker or the spouse or child 

declines such inclusion. The AO must 

complete background and security 

checks for each family member and 

screen each family member for 

mandatory bars to asylum eligibility. If 

the family unit is placed into section 

240 removal proceedings, the 

Department serves an NTA on each 

family member and file an NTA for each 

family member with EOIR. If the AO 

finds that the principal noncitizen does 

not have a credible fear of persecution 

or torture, then the AO must interview 

the other family members to determine 

if any other family member can 

establish a credible fear. If the AO finds 

any family unit member positive for 

credible fear, then the AO does not 

interview the remaining family 

members except to screen for mandatory 

bars. The other family members do not 

need separate credible fear 

determinations and may be included in 

the positive family member’s 

determination in the officer’s discretion 

for purposes of family unity on a caseby-case basis, unless they indicate they 

wish to receive a separate 

determination.102

In other words, regardless of this rule, 

any family member subject to a 

mandatory bar is ineligible for the 

relevant form of relief or protection. 

This rule does not change the 

underlying merits of the family unit 

members’ claims or the ability of other 

family members to ultimately qualify for 

asylum or withholding of removal. 

b. Impacts on U.S. Economy, Taxpayers, 

Public Safety 

Comment: A commenter described the 

additional time burden on asylum 

seekers to gather evidence, on 

stakeholder organizations involved in 

providing direct services, such as 

preparing asylum seekers for credible 

fear and reasonable fear interviews; and 

psychological costs imposed on asylum 

seekers by the NPRM. 


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Response: DHS acknowledges this 

comment and has included a 

description of impacts of the Final Rule 

under Executive Order 12866 and 

Executive Order 13563 in Section V.A. 

of this preamble. 

Comment: A commenter stated that 

the rule will increase the asylum 

application backlog and detention times 

because of the time required for an AO 

to apply mandatory bars while also 

considering exemptions and waivers, 

and the time required for an AO to 

determine at the credible fear and 

reasonable fear stage if an asylum seeker 

has committed a particularly serious 

crime. The commenter argued the law is 

unclear about whether there is an 

exception to the persecutor bar for 

individuals forced to engage in 

persecution under duress; that asylum 

seekers face the challenge of lack of 

access to legal counsel in CBP custody 

and other detention facilities, and 

insufficient time to gather evidence; and 

that a consequence of the rule will be 

erroneous negative credible fear or 

reasonable fear determinations, leading 

to wrongful deportation and separation 

of families in certain situations. 

Response: DHS has described 

procedures used by AOs to identify 

possible mandatory bars while 

screening noncitizens for credible fear 

claims. Nothing in this rule alters the 

ability of a noncitizen who is the subject 

of a negative credible fear or reasonable 

fear determination to seek review of 

such determination by an immigration 

judge. DHS anticipates that cases raising 

such novel or complex legal questions 

would not be appropriate for AOs to use 

their discretion to consider the bar at 

issue, as it is unlikely the AO could do 

so efficiently in a screening interview. 

DHS disagrees that the rule will lead to 

additional erroneous negative credible 

fear or reasonable fear determinations, 

as the rule only allows AOs to enter a 

negative credible fear determination if 

the AO determines there is not a 

significant possibility the noncitizen 

would be able to establish by a 

preponderance of the evidence that the 

mandatory bars to asylum under INA 

sec. 208(b)(2)(A)(i)–(v), 8 U.S.C. 

1158(b)(2)(A)(i)–(v) or to statutory 

withholding of removal under INA sec. 

241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B) do 

not apply. Further, as explained in the 

description of impacts of the Final Rule 

under Executive Order 12866 and 

Executive Order 13563 in Section V.A. 

of this preamble, noncitizens who 

receive a negative credible fear or 

reasonable fear determination because 

of the application of mandatory bars 

may spend less time in detention since 

they are deemed ineligible for relief at 

the screening stage. This rule would 

conserve DHS resources to the extent it 

precludes additional or more extended 

detention or monitoring of individuals 

in cases in which an AO has determined 

at the screening stage that a mandatory 

bar applies. 

c. Benefits and Cost Savings 

Comment: A commenter stated that 

given the relatively small number of 

cases the rule would affect and the 

difficulty of analyzing mandatory bars, 

the risk of mistaken removal far 

outweighs DHS’s claimed expediency. 

Response: As previously explained, 

DHS disagrees that the rule will lead to 

erroneous determinations. The 

Department is confident in the ability of 

AOs to apply the provisions of the rule 

correctly and in the safeguards in 

place—including 100-percent 

supervisory review and the ability of 

noncitizens to request immigration 

judge review of negative fear 

determinations—to ensure fear 

determinations and any resulting 

removals are conducted in accordance 

with the law. DHS has provided a 

detailed description of impacts of the 

Final Rule under Executive Order 12866 

and Executive Order 13563 in Section 

V.A. of this preamble. 

V. Statutory and Regulatory 

Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

Executive Order 12866 (‘‘Regulatory 

Planning and Review’’), as amended by 

Executive Order 14094 (‘‘Modernizing 

Regulatory Review’’), and Executive 

Order 13563 (‘‘Improving Regulation 

and Regulatory Review’’) direct agencies 

to assess the costs and benefits of 

available regulatory alternatives and, if 

a regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health, 

and safety effects, distributive impacts, 

and equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. 

The Office of Management and Budget 

(OMB) has designated this rule a 

‘‘significant regulatory action’’ as 

defined under section 3(f) of E.O. 12866, 

as amended by Executive Order 14094, 

but it is not significant under section 

3(f)(1) because its annual effects on the 

economy do not exceed $200 million in 

any year of the analysis. Accordingly, 

OMB has reviewed this rule. 

1. Summary of Costs and Benefits of the 

Final Rule 

DHS is amending its regulations 

governing credible fear and reasonable 

fear screenings by allowing AOs the 

discretion to consider of mandatory bars 

to asylum contained in INA sec. 

208(b)(2)(A)(i)–(v), 8 U.S.C. 

1158(b)(2)(A)(i)–(v), or the mandatory 

bars to statutory withholding of removal 

in INA sec. 241(b)(3)(B), 8 U.S.C. 

1231(b)(3)(B), and, consequently, 

reducing the amount of time that some 

noncitizens who are subject to those 

bars remain in the United States. AOs 

would have the discretion to consider 

the potential application of certain 

mandatory bars to asylum and statutory 

withholding of removal when screening 

the noncitizen for a credible fear of 

persecution (including cases where the 

CLP rule’s presumption of asylum 

ineligibility applies and no exception or 

rebuttal is established, as well as 

credible fear determinations subject to 

the limitation on asylum eligibility 

pursuant to the Securing the Border rule 

where no exception is established) or 

reasonable fear of persecution. 

The final rule changes and 

streamlines the adjudicatory process for 

affected asylum or statutory 

withholding of removal claims arising 

out of the expedited removal process, as 

well as reinstatement of removal and 

certain final administrative removal 

order processes. By providing USCIS 

AOs flexibility to apply the public 

safety and national security statutory 

bars, the rule could enhance the public 

safety of the United States with the swift 

removal of some noncitizens from the 

country who pose a threat to public 

safety or national security. 

Table 1 provides a detailed summary 

of estimated quantifiable and 

unquantifiable impacts of the Final 

Rule’s provisions. 


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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103405 

103Memorandum for the Record, from Ted Kim, 

Assoc. Dir., Refugee, Asylum, and Int’l Operations 

Directorate, USCIS, Re: Asylum Division Training, 

Staffing, Capacity, and Credible Fear Procedures 

(Sept. 26, 2024). 

104EOIR, ‘‘Immigration Judge (IJ) Hiring, Data 

Generated: July 19, 2024’’ https://www.justice.gov/ 

eoir/media/1344911/dl?inline (last accessed Oct. 3, 

2024). 

105OMB, ‘‘Circular A–4’’ (Nov. 9, 2023) https:// 

www.whitehouse.gov/wp-content/uploads/2023/11/ 

CircularA-4.pdf. 

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

Population impacted Annual population estimate Expected impacts 

Noncitizens issued credible fear determinations by USCIS.USCIS credible fear determinations have ranged from 28,000 

to 125,000 noncitizens per year 

in the last 5 fiscal years (see 

Table 3).

• Noncitizens who receive a positive credible fear determination and are referred to EOIR by USCIS 

might benefit from less time waiting for an immigration judge’s decision on their protection claims. 

This is a benefit in terms of equity and fairness, for noncitizens. 

• Noncitizens who receive a negative credible fear determination due to application of mandatory 

bars may spend less time in detention, if they do not otherwise establish potential eligibility for protection under the Convention Against Torture. 

• Noncitizens who receive a negative credible fear determination due to application of mandatory 

bars might lose the opportunity to gather evidence during the period of time between the fear 

screening and the merits immigration judge hearing. The noncitizen might either contest application 

of mandatory bars in full merits proceedings, or seek appellate review of the adjudicator’s application of the bar during a merits proceeding. 

Noncitizens issued reasonable fear determinations by USCIS.USCIS reasonable fear determinations have ranged from 

3,400 to 8,000 noncitizens per 

year in the last 5 fiscal years 

(see Table 3).

• Noncitizens who receive a positive reasonable fear determination and are referred to EOIR by 

USCIS might benefit from shorter waiting times for an immigration judge’s decision on withholding 

or deferral of removal only. 

• Noncitizens who receive a negative reasonable fear determination due to application of mandatory 

bars may spend less time in detention, if they do not otherwise establish potential eligibility for protection under the Convention Against Torture. 

• Noncitizens who receive a negative reasonable fear determination due to application of mandatory 

bars might lose the opportunity to gather evidence during the period of time between the fear 

screening and the merits immigration judge hearing. The noncitizen might either contest application 

of mandatory bars, or seek appellate review of the adjudicator’s application of the bar during a merits proceeding. 

DHS–USCIS .................. 850 AOs onboard as of Aug. 15, 

2024 103.

• In credible/reasonable fear cases where the AO exercises discretion to apply one of the mandatory 

bars, additional time may be spent developing the record as to the mandatory bar during fear 

screening interviews and conducting the written analysis related to the mandatory bar for the fear 

determination. This additional time may be offset to an extent by not having to include a separate 

analysis on the merits of the persecution claim in the fear determination where the negative credible 

or reasonable fear of persecution finding rests solely on the application of a mandatory bar. SAOs, 

in turn, may also spend additional time reviewing mandatory bar analyses in fear determinations 

where AOs exercise discretion to apply a mandatory bar at the screening stage. 

EOIR .............................. 734 immigration judges at end of 

FY 2023, as well as support 

staff and other personnel 104.

• Potential non-budgetary cost savings if time worked on credible fear cases and reasonable fear 

cases decreases due to a reduction of referrals of credible fear and reasonable fear cases for full 

proceedings on the merits before immigration judges. 

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 to individuals 

affected by this rule.105

TABLE 2—OMB A–4 ACCOUNTING STATEMENT TIME PERIOD: FY 2019 THROUGH FY 2023 

Category Primary 

estimate 

Minimum 

estimate 

Maximum 

estimate 

Source 

citation 

BENEFITS 

Monetized Benefits ............................ N/A N/A N/A ................................................................................................................ RIA 

Annualized quantified, but 

unmonetized, benefits.

N/A N/A N/A ................................................................................................................ RIA 

Unquantified Benefits ......................... The final rule will enable some asylum seekers to move through the asylum process more quickly than may 

be the case currently, with potential decreases in adjudication timelines, thus promoting both fairness with 

potentially less time in confinement for those noncitizens subject to a bar, if they do not otherwise establish 

potential eligibility for protection under the Convention Against Torture regulations and equity for those 

noncitizens in removal proceedings who are not subject to a mandatory bar. 

RIA 

In this rule the swift removal of these noncitizens may create disincentives for other noncitizens who would 

be subject to these mandatory bars when considering attempting to enter the United States. The final rule 

might enhance the public safety of the United States due to swift removal of some noncitizens from the 

country who pose a threat to public safety or national security. 

COSTS 

Annualized monetized costs .............. N/A N/A N/A ................................................................................................................ RIA 


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106Specifically, the Security Bars rule would 

apply to a noncitizen if a communicable disease has 

triggered an ongoing declaration of a public health 

emergency under Federal law and they (1) have 

symptoms indicating that they are afflicted with the 

disease or (2) have come into contact with the 

disease within the number of days equivalent to the 

longest known incubation and contagion period for 

the disease, both per guidance issued by the 

Secretary or the Attorney General, as appropriate. 

85 FR at 84193. The rule would also allow the 

Secretary and the Attorney General jointly, in 

consultation with the Secretary of Health and 

Human Services, to apply the bars in other 

circumstances, such as where a noncitizen ‘‘comes’’ 

from a place where a communicable disease of 

public health significance is prevalent or epidemic 

and traveled within a period determined by the 

Secretary and Attorney General. Id. 

107USCIS, ‘‘Questions and Answers: Credible fear 

screenings,’’ https://www.uscis.gov/humanitarian/ 

refugees-and-asylum/asylum/questions-andanswers-credible-fear-screening. (last accessed July 

31, 2024). 

TABLE 2—OMB A–4 ACCOUNTING STATEMENT TIME PERIOD: FY 2019 THROUGH FY 2023—Continued 

Category Primary 

estimate 

Minimum 

estimate 

Maximum 

estimate 

Source 

citation 

Annualized quantified, but 

unmonetized, costs.

N/A N/A There could be potential non-budget related cost savings due to reduction 

of annual credible fear of persecution referrals and reasonable fear of 

persecution referrals for full proceedings on the merits by immigration 

judges, by 2.56 percent (808 credible fear of persecution cases on average per year) and 17.61 percent (174 reasonable fear of persecution 

cases on average per year) respectively, as this would allow resources 

at EOIR to be directed to other work..

RIA 

Qualitative (unquantified) costs ......... Noncitizens who receive a negative credible fear or reasonable fear determination might lose the opportunity 

to gather evidence and contest the application of mandatory bars in full merits hearing or seek appellate 

review of the immigration judge’s decision, as they will be removed quickly under this rule. 

RIA 

Where AOs exercise discretion to apply a mandatory bar at the screening stage, AOs will spend additional 

time eliciting testimony related to and analyzing the mandatory bar in the screening determination, and 

SAOs will spend additional time reviewing fear determinations containing a mandatory bar analysis. This 

additional time spent by AOs may be offset to an extent by not having to include a separate persecution 

analysis in the fear determination where the negative credible or reasonable fear of persecution finding rests 

solely on the application of a mandatory bar. 

TRANSFERS 

Annualized monetized transfers ........ N/A N/A N/A ................................................................................................................ RIA 

Annualized unquantified transfers ..... N/A N/A N/A ................................................................................................................ RIA 

Miscellaneous Analyses/Category ..... Effects Source citation 

Effects on State, local, or Tribal governments.None. RIA 

Effects on small businesses .............. This rule does not directly regulate small entities, but rather individuals. RIA 

Effects on wages ............................... None. RIA 

Effects on growth ............................... None. RIA 

DHS is unable to quantify the impact 

of this rule with respect to the 

consideration of the mandatory bars for 

noncitizens who are a danger to the 

security of the United States at INA 

secs. 208(b)(2)(A)(iv) and 

241(b)(3)(B)(iv), 8 U.S.C. 

1158(b)(2)(A)(iv) and 1231(b)(3)(B)(iv), 

should the Security Bars rule go into 

effect. 85 FR 84160. Because the 

Departments have delayed the effective 

date of that rule and it has never been 

implemented, the Department is unable 

to draw on historical data where this 

public health-related security bar has 

been flagged in credible fear and 

reasonable fear screenings. Furthermore, 

as explained above in Section IV.E.2, 

the bars to asylum and withholding of 

removal promulgated under the Security 

Bars rule would only apply in particular 

public health-related circumstances. See 

85 FR at 84193 (amending 8 CFR 

208.13(c)).106 Because those 

circumstances are not currently in 

effect, DHS is unable to assess the 

potential population of noncitizens who 

would be subject to the provisions of the 

Security Bars and Processing rule under 

this rule. Finally, it is impossible to 

predict the number of cases when an 

AO would choose to use their discretion 

afforded by this rule to apply the 

security bars during a credible fear or 

reasonable fear screening. 

2. Background and Purpose of the Rule 

A DHS immigration officer who 

encounters a noncitizen subject to 

expedited removal may order the 

noncitizen to be ‘‘removed from the 

United States without further hearing or 

review’’ unless the noncitizen indicates 

‘‘an intention to apply for asylum’’ or ‘‘a 

fear of persecution’’ or torture. INA sec. 

235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i); 

see 8 CFR 235.3(b)(4). If the noncitizen 

indicates such an intention or fear, the 

immigration officer must refer the 

noncitizen for an interview by an AO to 

determine whether the noncitizen has a 

‘‘credible fear of persecution.’’ INA sec. 

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

1225(b)(1)(A)(ii), (B)(ii). A credible fear 

is defined by statute as a ‘‘significant 

possibility’’ that the noncitizen could 

establish eligibility for asylum. INA sec. 

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

1225(b)(1)(B)(v). Under current 

regulations, a credible fear of 

persecution is a ‘‘significant possibility’’ 

that a noncitizen can establish eligibility 

for asylum under INA sec. 208, 8 U.S.C. 

1158 or for statutory withholding of 

removal under INA sec. 241(b)(3), 8 

U.S.C. 1231(b)(3). 8 CFR 208.30(e)(2). A 

credible fear of torture is a ‘‘significant 

possibility’’ that a noncitizen can 

establish 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 8 

CFR 208.17. 8 CFR 208.30(e)(3).107

Certain noncitizens are prohibited 

from contesting removability before an 

immigration judge or from seeking any 

relief from removal. See INA sec. 

238(b)(5), 8 U.S.C. 1228(b)(5) and INA 

sec. 241(a)(5), 8 U.S.C.1231(a)(5). If such 

an individual, who is ordered removed 

under INA sec. 238(b), 8 U.S.C. 1228(b) 

or whose order of removal is reinstated 

under INA sec. 241(a)(5), 8 


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108See USCIS, RAIO Directorate—Officer 

Training: Credible Fear of Persecution and Torture 

Determinations (May 9, 2024); USCIS, RAIO 

Directorate—Officer Training: Reasonable Fear of 

Persecution and Torture Determinations (Feb. 13, 

2017); see also Credible Fear Procedures Manual 

(CFPM), Section III.E.7; Reasonable Fear Procedures 

Manual (RFPM), Section III.F. 109 In credible fear determinations, AOs flag 

possible bars on the Form I–870, Record of 

Determination/Credible fear Worksheet, and in the 

Global case management system; in reasonable fear 

determinations, AOs flag possible bars in the Global 

case management system. 

110See CFPM, Section IV.G; see also RFPM 

Sections III.F.2. and IV.E. 

111USCIS, ‘‘Credible Fear Procedures Manual,’’ 

Section IV.G, https://www.uscis.gov/sites/default/ 

files/document/guides/ 

CredibleFearProceduresManual.pdf; USCIS, 

‘‘Reasonable Fear Procedures Manual,’’ Section 

IV.E, https://www.uscis.gov/sites/default/files/ 

document/guides/ReasonableFearProcedures

Manual.pdf. 

112 232,479 total positive credible fear 

determination/338,087 FY 2019–FY 2023 all 

positive and negative credible fear determinations 

= 68.76% 

113 105,608 total negative credible fear 

determination/338,087 FY 2019–FY 2023 all 

positive and negative credible fear determinations 

= 31.24% 

114 232,479 total positive credible fear 

determination/371,208 FY 2019–FY 2023 total 

credible fear completions = 62.63% 

115 105,608 total negative credible fear 

determination/371,208 FY 2019–FY 2023 total 

credible fear completions = 28.45% 

116 (371,208 total credible fear completions— 

338,087 all positive and negative credible fear 

determinations)/371,208 FY 2019–FY 2023 total 

credible fear completions = 8.92% 

117 10,334 total positive reasonable fear 

determination/28,294 FY 2019–FY 2023 all positive 

and negative reasonable fear determinations = 

36.52% 

118 17,960 total negative reasonable fear 

determination/28,294 FY 2019–FY 2023 all positive 

and negative reasonable fear determinations = 

63.48% 

119 10,334 total positive reasonable fear 

determination/40,161 FY 2019–FY 2023 total 

reasonable fear completions = 25.73% 

120 17,960 total negative reasonable fear 

determination/40,161 FY 2019–FY 2023 total 

reasonable fear completions = 44.72% 

121 (40,161 total reasonable fear completions— 

28,294 all positive and negative reasonable fear 

determinations)/40,161 FY 2019–FY 2023 total 

reasonable fear completions = 29.55% 

U.S.C.1231(a)(5), expresses a fear of 

return to the country to which they have 

been ordered removed, the case must be 

referred to an AO, who will determine 

whether the individual has a 

‘‘reasonable fear’’ of persecution or 

torture. 8 CFR 208.31(a) and (b). A 

reasonable fear of persecution or torture 

is a reasonable possibility that the 

noncitizen would be persecuted on 

account of their race, religion, 

nationality, membership in a particular 

social group or political opinion, or a 

reasonable possibility that they would 

be tortured in the country of removal. 8 

CFR 208.31(c). 

Though mandatory bars to asylum 

and withholding of removal had no 

impact on a credible fear or reasonable 

fear of persecution or torture 

determination before the current 

rulemaking, pursuant to existing 

procedures, AOs elicit testimony related 

to possible mandatory bars in credible 

fear and reasonable fear interviews.108

Under existing procedures, when 

information in the record indicates that 

a mandatory bar may apply to a 

noncitizen, the AO identifies the 

possible bar,109 and if, after consultation 

with a supervisory AO, there are 

reasonable grounds to believe a 

mandatory bar (other than firm 

resettlement) applies to a noncitizen, 

the AO completes a Memo of Adverse 

Information that is forwarded to ICE to 

notify ICE of the potential bar.110

Identifying any one of the possible 

mandatory bars does not affect the 

determination of whether a noncitizen 

has a credible fear or reasonable fear of 

persecution or torture.111 In credible 

fear cases, regardless of whether the AO 

flags a mandatory bar to asylum or 

withholding of removal, where the AO 

issues a positive credible fear 

determination, USCIS issues the 

noncitizen a Form I–862, Notice to 

Appear (NTA), for section 240 removal 

proceedings for further consideration of 

the noncitizen’s claim. 8 CFR 

208.30(e)(5). In reasonable fear cases, 

regardless of whether the AO flags a 

mandatory bar to withholding of 

removal, where the AO issues a positive 

reasonable fear determination, USCIS 

issues the noncitizen a Form I–863, 

Notice of Referral to the Immigration 

Judge, for consideration of the 

noncitizen’s request for withholding of 

removal only. 8 CFR 208.31(e). 

Table 3 illustrates the total credible 

fear determinations (positive and 

negative) issued by USCIS, the total 

credible fear completions by USCIS 

(including administrative closures), the 

total reasonable fear determinations 

(positive and negative) issued by USCIS, 

and the total reasonable fear 

completions by USCIS (including 

administrative closures) for FY 2019 

through FY 2023. From FY 2019 

through FY 2023, in the aggregate and 

excluding administrative closures, the 

majority of credible fear determinations 

made by USCIS resulted in positive 

determinations: 68.76 percent of 

credible fear determinations issued by 

USCIS were positive,112 and 31.24 

percent were negative.113 When 

administrative closures are included in 

the aggregate for that same period, 62.63 

percent of credible fear completions 

resulted in positive determinations,114

28.45 percent resulted in negative 

determinations,115 and 8.92 percent 

were administratively closed.116 For 

reasonable fear determinations issued 

by USCIS from FY 2019 to FY 2023, in 

the aggregate and excluding 

administrative closures, 36.52 percent 

resulted in positive determinations,117

and 63.48 percent resulted in negative 

determinations.118 For those same years, 

if administrative closures are included, 

25.73 percent of reasonable fear 

completions by USCIS resulted in 

positive determinations,119 44.72 

percent resulted in negative 

determinations,120 and 29.55 percent 

were administratively closed.121

BILLING CODE 9111–97–P 


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122Calculation: 15,982 total positive credible fear 

determination with possible mandatory bars/ 

232,479 FY 2019–FY2023 total positive credible 

fear determination = 6.87% 

123Calculation: 2,598 total positive reasonable 

fear determinations with possible mandatory bars/ 

10,334 FY 2019–FY2023 total positive reasonable 

fear determinations = 25.14% 

124Calculation: 7,653 total positive credible fear 

determination with mandatory bar excluding firm 

resettlement/232,479 FY 2019–FY2023 total 

positive credible fear determination = 3.29% 

125Calculation: 2,407 total positive reasonable 

fear determinations with mandatory bar excluding 

firm resettlement/10,334 FY 2019–FY2023 total 

positive reasonable fear determinations = 23.29% 

BILLING CODE 9111–97–C 

Table 4 presents instances where AOs 

flagged a potential bar to asylum or 

withholding of removal in a screening 

interview. It illustrates the distribution 

of possible mandatory bars across 

credible fear and reasonable fear 

completions. Without accounting for the 

‘‘firm resettlement’’ bar, these 

mandatory bars protect the public from 

individuals who have persecuted others, 

have been convicted of significant 

crimes, represent a danger to the public, 

or have engaged in terrorist activity. 

Currently, flagging of any of the 

mandatory bars does not affect the 

credible or reasonable fear 

determination. Records show that of 

232,479 total positive credible fear 

determinations and 10,334 total positive 

reasonable fear determinations for FY 

2019 through FY 2023, AOs flagged 

mandatory bars in 15,982 total positive 

credible fear determinations (6.87 

percent 122) and 2,598 total positive 

reasonable fear determinations (25.14 

percent 123). In some instances, AOs 

may have flagged multiple mandatory 

bars in one case. Of those 

determinations, AOs flagged a 

mandatory bar other than the firm 

resettlement bar in 7,653 positive 

credible fear determinations and 2,407 

positive reasonable fear determinations. 

Overall, AOs flagged a mandatory bar, 

other than the firm resettlement bar, in 

3.29 percent 124 of total positive credible 

fear determinations and 23.29 

percent 125 of total positive reasonable 

fear determinations. 

TABLE 4—FEAR DETERMINATIONS BY SPECIFIC POSSIBLE MANDATORY BARS

[FY 2019 through FY 2023 total] 

5-Year total 

Positive 

credible fear 

determination 

Negative 

credible fear 

determination 

Positive 

reasonable fear 

determination 

Negative 

reasonable fear 

determination 

Total Determinations Flagging Mandatory Bars ............................................................... 15,982 8,923 2,598 5,242 

Total Determinations Flagging Mandatory Bars Excl. Firm Resettlement Bar ................. 7,653 4,004 2,407 4,979 

Total Determinations * ....................................................................................................... 232,479 105,608 10,334 17,960 

Mandatory Bars as % of Total Determinations ................................................................. 6.87% 8.45% 25.14% 29.19% 

Possible Mandatory Bars Excl. Firm Resettlement as % of Total Determinations .......... 3.29% 3.79% 23.29% 27.72% 

Source: USCIS Refugee, Asylum, and International Operations (‘‘RAIO’’) Directorate, Global (queried Sept. 9, 2024). 

Note: Fiscal Year refers to Case Completion Year. Cases can have more than one possible bar. * Total Determinations row derived from Table 3: Credible Fear 

and Reasonable Fear Data (FY 2019 through FY 2023), 5-year totals. 


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126See 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 fundamentally fair.’’ 

(quotation marks omitted)); Matter of Velasquez, 19 

I&N Dec. 377, 380 (BIA 1986) (same). 

127 Matter of R-A-V-P-, 27 I&N Dec. 803, 805 (BIA 

2020) (‘‘The immigration judge may also consider 

the likelihood that relief from removal will be 

granted in determining whether [a noncitizen] 

warrants bond.’’). 

128Executive Office for Immigration Review 

(2024). Current Operation Environment. EOIR 

Strategic Plan. Available at https://www.justice.gov/ 

eoir/strategic-plan/strategic-context/currentoperating-enviroment. (last accessed Oct. 23, 2024). 

129This rule will not change current treatment of 

the ‘‘firm resettlement’’ bar at INA sec. 

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

During removal proceedings, the 

immigration judge determines whether a 

mandatory bar applies. ICE OPLA may 

consider and further develop the 

information identified by the AO when 

litigating before EOIR, and EOIR may 

consider this information along with 

other relevant factors in the case during 

the adjudication in immigration court 

proceedings.126 ICE ERO and EOIR may 

rely upon the identification of the 

potential bar in making custodial 

determinations.127 In Table 5, USCIS 

illustrates the EOIR pending caseload 

over the last five fiscal years. As of FY 

2023, there were approximately 2.47 

million pending cases. The EOIR 

pending caseload is a cumulative effect 

of multiple factors, such as, though not 

limited to, pending cases from previous 

years, new cases filed by DHS, the 

number of immigration judges onboard 

to adjudicate cases, and the space 

available on each judge’s docket.128

TABLE 5—PENDING CASES, INITIAL RECEIPTS AND TOTAL COMPLETIONS AT EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

(EOIR) 

[FY 2019 through FY 2023] 

Fiscal year 

Pending cases 

at end of 

fiscal year 1

Initial receipts 2 Total 

completions 3

2019 ............................................................................................................................. 1,088,606 547,289 277,078 

2020 ............................................................................................................................. 1,261,077 369,705 232,296 

2021 ............................................................................................................................. 1,408,801 244,277 115,941 

2022 ............................................................................................................................. 1,791,493 707,589 314,696 

2023 ............................................................................................................................. 2,469,960 1,206,201 526,203 

5-Year Total .......................................................................................................... 8,019,937 3,075,061 1,466,214 

5-Year Annual Average ........................................................................................ 1,603,987 615,012 293,243 

Source: EOIR, ‘‘Pending Cases, New Cases, and Total Completions, Data Generated: July 19, 2024’’ https://www.justice.gov/eoir/media/ 

1344791/dl?inline last accessed Oct. 3, 2024). 

Notes: 1Pending cases equals removal, deportation, exclusion, asylum-only, and withholding only. 2 Initial receipts equals removal, deportation, exclusions, asylum-only, and withholding only. 

3Total completions equals initial case completions plus subsequent case completions. 

The purpose of this rule is to allow for 

consideration of mandatory bars during 

the credible fear of persecution 

screening process for certain 

noncitizens who are placed into 

expedited removal under INA sec. 

235(b)(1), 8 U.S.C. 1225(b)(1) and have 

been referred to USCIS for a fear 

screening pursuant to 8 CFR 208.30, 

208.33, 208.35, INA sec. 235(b)(1)(A)(ii), 

8 U.S.C. 1225(b)(1)(A)(ii), and to allow 

for the consideration of mandatory bars 

during the reasonable fear screening 

process for certain noncitizens who 

have been ordered removed under INA 

sec. 238(b), 8 U.S.C. 1228(b), or whose 

deportation, exclusion, or removal order 

has been reinstated under INA sec. 

241(a)(5), 8 U.S.C. 1231(a)(5) and who 

are referred to USCIS for a reasonable 

fear screening pursuant to 8 CFR 208.31. 

The rule would allow AOs discretion to 

consider certain mandatory bars during 

a screening interview and, if an AO 

exercises that discretion, require AOs to 

enter a negative fear determination 

where there is evidence the mandatory 

bar may apply, the noncitizen is unable 

to establish at the relevant standard that 

the bar does not apply, and the 

noncitizen is otherwise unable to 

demonstrate a fear of torture at the 

applicable standard in a given case. The 

specific mandatory bars this rule would 

allow AOs to consider are those relating 

to public safety and/or national security 

threats, with the intent of allowing the 

Department flexibility in some cases to 

more quickly remove individuals who 

present such concerns. As the rule is not 

changing the current treatment of the 

‘‘firm resettlement’’ mandatory bar, any 

fear screening determination will not be 

affected by information in the record 

related to a possible firm resettlement 

bar.129

The rule does not apply to 

unaccompanied children statutorily 

exempted from placement 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, provided such individuals 

have not been ordered removed under 

INA sec. 238(b), 8 U.S.C. 1228(b), or 

have not had an order of removal are 

reinstated under INA sec. 241(a)(5), 8 

U.S.C.1231(a)(5). The rule also does not 

apply to stowaways or noncitizens who 

are physically present in or arriving in 

the Commonwealth of the Northern 

Mariana Islands (CNMI). Those classes 

of noncitizens will continue to be 

referred to asylum/withholding-only 

hearings before an immigration judge 

under 8 CFR 208.2(c). 

3. Impacts of the Rule 

a. Impacts on the Population Screened 

for Credible Fear or Reasonable Fear 

The final rule will impact certain 

individuals who undergo credible fear 

or reasonable fear screenings. These 

individuals are noncitizens who, where 

an AO exercises discretion to consider 

certain mandatory bars to asylum or 

statutory withholding of removal, are 

unable to establish at the relevant 

standard of proof that the bar or bars at 

issue do not apply to them and are 

otherwise unable to establish a fear of 

torture at the applicable standard for the 

given case. The type of credible fear or 

reasonable fear screenings where this 

rule could be outcome-determinative is 

limited to cases where a noncitizen is 

not found to have a credible fear or 

reasonable fear of torture and would 


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have been found to have a credible fear 

of persecution or a reasonable fear of 

persecution but for the application of a 

bar under this rule. The type of credible 

or reasonable fear determination where 

this rule will not be outcomedeterminative are cases where a positive 

credible or reasonable fear of torture is 

found. Table 6 shows positive credible 

fear of persecution only cases and 

positive reasonable fear of persecution 

only cases; and a subset of those cases 

that were identified during the last five 

fiscal years as having mandatory bars 

other than the firm resettlement bar. For 

FY 2019 through FY 2023, USCIS 

records indicated that of total positive 

credible fear of persecution 

determinations, USCIS identified a 

potential mandatory bar (other than firm 

resettlement) in 2.56 percent of total 

cases with a positive credible fear of 

persecution determination. From FY 

2019 through FY 2023, USCIS identified 

a potential bar to withholding of 

removal in 17.61 percent of positive 

reasonable fear of persecution 

determinations. 

TABLE 6—POSITIVE CREDIBLE FEAR OF PERSECUTION, POSITIVE REASONABLE FEAR OF PERSECUTION, POSSIBLE

MANDATORY BAR FLAG EXCLUDING FIRM RESETTLEMENT

[FY 2019 through FY 2023] 

Fiscal year 

Credible fear of persecution Reasonable fear of persecution 

Positive determination Possible 

mandatory bar 

excl. firm 

resettlement 

as share of 

credible fear of 

persecution cases 

(%) 

Positive determination Possible 

mandatory bar 

excl. firm 

resettlement 

as share of 

reasonable fear of 

persecution cases 

(%) 

Possible 

mandatory bar 

excluding firm 

resettlement 

Total 

credible 

fear of 

persecution cases 

Possible 

mandatory bar 

excluding firm 

resettlement 

Total 

reasonable 

fear of 

persecution cases 

2019 ...................................................... 898 50,074 1.79 173 1,333 12.98 

2020 ...................................................... 357 8,887 4.02 56 394 14.21 

2021 ...................................................... 522 24,512 2.13 82 541 15.16 

2022 ...................................................... 664 24,277 2.74 239 1,127 21.21 

2023 ...................................................... 1,600 50,132 3.19 318 1,534 20.73 

5-Year Total ................................... 4,041 157,882 2.56 868 4,929 17.61 

5-Year Annual Average ................. 808 31,576 174 986 

Source: USCIS RAIO Directorate, Global (queried Sept. 9, 2024). 

Note: Fiscal Year refers to Case Completion Year. 

Note: Table 6 excludes Credible Fear of Torture and Reasonable Fear of Torture cases. 

Table 6 does not include positive 

credible fear of torture and positive 

reasonable fear of torture 

determinations. This rule will not 

impact credible or reasonable fear cases 

that receive a positive fear of torture 

determination, since the screening for 

torture encompasses screening for 

deferral of removal under CAT, for 

which there are no bars. Likewise, this 

rule will not affect negative credible or 

reasonable fear determinations where 

the AO did not flag a mandatory bar 

because in those cases, the application 

of a mandatory bar would not change 

the outcome. For the latter two 

categories, AOs will continue to identify 

bars where they may be evident in the 

record, even if they are not outcome 

determinative in a given case. Based on 

the information provided in Table 6, the 

additional annualized population that 

could receive a negative credible fear of 

persecution determination in a typical 

year is 808, and the additional 

annualized population that could 

receive a negative reasonable fear of 

persecution determination is 174 due to 

this rule. The Department expects that 

AOs would choose to apply a 

mandatory bar to an even smaller subset 

of these flagged cases, because not all 

flagged cases have sufficient supporting 

evidence easily available to the AO. 

Under the rule, noncitizens subject to 

the above cited bars will be more 

quickly removed from the United States, 

freeing up the Department’s resources to 

safely, humanely, and effectively 

enforce and administer the immigration 

laws. The public safety of the United 

States may be enhanced as some 

noncitizens who have engaged in 

certain criminal activity, persecuted 

others, or been involved in terrorist 

activities are quickly removed from the 

country. The swift removal of these 

noncitizens may create disincentives for 

other noncitizens who would be subject 

to these mandatory bars when 

considering attempting to enter the 

United States. 

The pending caseload at EOIR (see 

Table 5) leads to extended wait times for 

noncitizens who received a positive 

credible fear determination and were 

then referred to EOIR by USCIS, which 

creates uncertainty for a subset of those 

ultimately determined to merit asylum 

and other forms of humanitarian 

protection. This rule might help such 

noncitizens experience shorter wait 

times, advancing equity for those 

noncitizens in removal proceedings who 

are not subject to a mandatory bar, less 

detention time for those noncitizens to 

whom a bar is applied and who 

otherwise have not been able to 

establish potential eligibility for 

protection under the Convention 

Against Torture regulations, and 

fairness. 

Noncitizens would primarily bear the 

costs of the final rule. Noncitizens to 

whom an AO would apply the abovecited bars in credible fear and 

reasonable fear screenings would lose 

the opportunity to contest the 

application of the mandatory bars in a 

full section 240 merits hearing before an 

immigration judge or to seek appellate 

review of the immigration judge’s 

decision should the immigration judge 

determine that a mandatory bar applies 

and affirm the negative determination. 

Such noncitizens would experience a 

shorter period of time between the fear 

screening before USCIS and removal 

under the final rule than they currently 

do. Therefore, they would lose the 

opportunity to gather additional 

evidence to show that the mandatory 

bar in question should not be applied in 

their case. 

b. Impacts to USCIS 

AOs will have the discretion to 

consider certain mandatory bars, while 

evaluating whether the noncitizen has 

met the requisite standard of proof with 

respect to their eligibility for asylum or 

statutory withholding of removal, as 


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130Calculation: 808 5-Year Average of Positive 

credible fear of persecution cases with a flag of 

mandatory bar excluding ‘‘firm resettlement’’/ 

31,576 5-Year Average of Positive credible fear of 

persecution cases = 2.56 percent. 131Calculation:- 174 5-Year Average of Positive 

credible fear of persecution cases with a flag of 

mandatory bar excluding ‘‘firm resettlement’’/986 5- 

Year Average of Positive credible fear of 

persecution cases = 17.61 percent. 

132A small business is defined as any 

independently owned and operated business not 

dominant in its field that qualifies as a small 

business per the Small Business Act, 15 U.S.C. 632. 

133See Public Law 104–4, 109 Stat. 48; see also 

2 U.S.C. 1532(a). 

134See Bureau of Labor Statistics, ‘‘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-202312.pdf (last visited Jan. 17, 

2024). Calculation of inflation: (1) Calculate the 

average monthly CPI–U for the reference year (1995) 

and the current year (2023); (2) Subtract reference 

year CPI–U from current year CPI–U; (3) Divide the 

difference of the reference year CPI–U and current 

year CPI–U by the reference year CPI–U; (4) 

Multiply by 100 = [(Average monthly CPI–U for 

2023 ¥ Average monthly CPI–U for 1995) ÷ 

(Average monthly CPI–U for 1995)] × 100 = 

[(304.702–152.383) ÷ 152.383] = (152.319/152.383) 

= 0.99958001 × 100 = 99.96 percent = 100 percent 

(rounded). Calculation of inflation-adjusted value: 

Continued 

applicable, when making credible fear 

determinations and reasonable fear 

determinations under this rule. Under 

this rule, noncitizens will still be able 

to seek review of negative credible fear 

or reasonable fear determinations before 

an immigration judge. AOs already 

identify potential mandatory bars in 

credible fear or reasonable fear 

determinations, and under this rule will 

only consider a bar in those cases where 

there is easily verifiable evidence 

available to the AO that a mandatory bar 

may apply, and the AO can consider 

that bar efficiently during a screening 

interview. 

In some cases, the final rule will 

result in AOs spending additional time 

during fear screenings to inquire into 

the applicability of mandatory bars, 

additional time documenting the 

mandatory bar analysis for the credible 

or reasonable fear determination, and 

additional time spent by SAOs to review 

any mandatory bar analysis. This 

additional time may be offset to an 

extent by not having to include a 

separate persecution analysis in the fear 

determination where the negative 

credible or reasonable fear of 

persecution finding rests solely on the 

application of a mandatory bar. AOs 

will have discretion whether to consider 

such bars at the screening stage and 

could therefore minimize the 

government costs associated with the 

final rule in cases where the additional 

development of the record and analysis 

would not be outcome determinative or 

an otherwise effective use of resources. 

The benefits of the final rule are 

expected to include a modest, 

unquantified reduction of the resources 

expended to detain noncitizens subject 

to the above cited mandatory bars for 

potentially lengthy periods of time 

while their cases are considered by 

immigration courts. 

c. Impacts to EOIR 

Where application of this rule results 

in a negative credible fear or reasonable 

fear determination that would have 

otherwise been a positive credible fear 

of persecution or reasonable fear of 

persecution determination, those cases 

will not be referred to EOIR for removal 

proceedings. This rule is therefore 

expected to reduce the number of 

credible fears of persecution and 

reasonable fear of persecution cases 

being referred to EOIR for removal 

proceedings. Additionally, immigration 

judges will continue to conduct de novo 

review of a negative credible fear and 

reasonable fear determinations when 

requested by a noncitizen. Preventing 

certain cases where a mandatory bar 

applied at the screening stage from 

being placed into removal proceedings 

before EOIR, may create additional 

capacity for immigration judges to work 

on their existing caseloads and other 

high-priority matters. 

Accordingly, every such positive 

credible fear or reasonable fear of 

persecution determination that would 

have been referred to EOIR for removal 

proceedings that, instead, results in a 

negative determination under this rule 

will constitute a direct reduction in new 

cases that EOIR would have to 

adjudicate. If the negative determination 

is concurred upon by an immigration 

judge where a review is requested. 

Given EOIR’s significant pending 

caseload of approximately 2.47 million 

cases (see Table 5), reducing the number 

of positive credible fear of persecution 

cases referred to EOIR by 2.56 

percent 130 and positive reasonable fear 

of persecution cases referred to EOIR by 

17.61 percent 131 (see Table 6) as upper 

bound estimates, will enable EOIR to 

focus limited resources on existing 

pending cases and reduce the overall 

pending caseload. 

The estimated reduction in new cases 

is based on positive credible or 

reasonable fear of persecution cases 

referred to EOIR from FY 2019 through 

FY 2023 and should be considered as an 

upper bound due to (a) lack of sufficient 

supporting evidence of application of 

mandatory bars except for firm 

resettlement available to AOs during the 

screening stage and (b) conversion of a 

subset of fear of persecution cases to 

fear of torture cases after application of 

mandatory bars. A reduction in the 

pending caseload will 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 are 

eligible. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601–612, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA), Public Law 104–121 (March 

29, 1996), requires Federal agencies to 

consider the potential impact of 

regulations on small businesses, small 

governmental jurisdictions, and small 

organizations during the development of 

their rules. The term ‘‘small entities’’ 

comprises small businesses, not-forprofit organizations that are 

independently owned and operated and 

are not dominant in their fields, or 

governmental jurisdictions with 

populations of less than 50,000.132

DHS has reviewed this rule in 

accordance with the RFA, Public Law 

96–354, 94 Stat. 1164 (1980), as 

amended (codified at 5 U.S.C. 601–612) 

and has certified that this rule would 

not have a significant economic impact 

on a substantial number of small 

entities. The rule would not regulate 

‘‘small entities’’ as that term is defined 

in 5 U.S.C. 601(6). Only individuals, 

rather than entities, are eligible to apply 

for asylum or are otherwise placed in 

immigration proceedings. 

C. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and Tribal governments. 

Title II of UMRA requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed rule, or final rule 

for which the agency published a 

proposed rule, which includes any 

Federal mandate that may result in a 

$100 million or more expenditure 

(adjusted annually for inflation) in any 

one year by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector.133 The inflation adjusted 

value of $100 million in 1995 is 

approximately $200 million in 2023 

based on the Consumer Price Index for 

All Urban Consumers (CPI–U).134


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$100 million in 1995 dollars × 2.00 = $200 million 

in 2023 dollars. 135See 2 U.S.C. 1502(1), 658(6). 136 2 U.S.C. 658(5). 137 2 U.S.C. 658(7). 138See 2 U.S.C. 1502(1), 658(6). 

139See 5 U.S.C. 601 note. 

140Public Law 105–277, 112 Stat. 2681 (1998). 

141The Instruction Manual contains DHS’s 

procedures for implementing NEPA and was issued 

November 6, 2014, available at DHS, 

‘‘Implementing the National Environmental Policy 

Act,’’ https://www.dhs.gov/publication/directive023-01-rev-01-and-instruction-manual-023-01-001- 

01-rev-01-and-catex (last visited July 25, 2024). 

142 40 CFR 1507.3(e)(2)(ii) and 1501.4. 

143 See Appendix A, Table 1. 

The term ‘‘Federal mandate’’ means a 

Federal intergovernmental mandate or a 

Federal private sector mandate.135 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).136 The term ‘‘Federal 

private sector mandate’’ means, in 

relevant part, a provision that would 

impose an enforceable duty upon the 

private sector except (except as a 

condition of Federal assistance or a duty 

arising from participation in a voluntary 

Federal program).137

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 UMRA.138

The requirements of title II of UMRA, 

therefore, do not apply, and DHS has 

not prepared a statement under UMRA. 

D. Small Business Regulatory 

Enforcement Fairness Act of 1996 

(Congressional Review Act) 

The Congressional Review Act (CRA) 

was included as part of SBREFA by 

section 804 of SBREFA, Public Law 

104–121, 110 Stat. 847, 868, et seq. The 

Office of Information and Regulatory 

Affairs has determined that this rule 

does not meet the criteria set forth in 5 

U.S.C. 804(2). DHS has complied with 

the CRA’s reporting requirements and 

has sent this rule to Congress and to the 

Comptroller General as required by 5 

U.S.C. 801(a)(1). 

E. Executive Order 13132 (Federalism) 

Executive Order 13132 was issued to 

ensure the appropriate division of 

policymaking authority between the 

States and the Federal Government and 

to further the policies of UMRA. This 

rule will not have substantial direct 

effects on the States, on the relationship 

between the National Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. Therefore, 

in accordance with section 6 of 

Executive Order 13132, it is determined 

that this rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

F. Executive Order 12988 (Civil Justice 

Reform) 

This rule was drafted and reviewed in 

accordance with Executive Order 12988, 

Civil Justice Reform. DHS has 

determined that this rule meets the 

applicable standards provided in 

section 3 of Executive Order 12988. 

G. Family Assessment 

DHS has reviewed this rule in line 

with the requirements of section 654 of 

the Treasury and General Government 

Appropriations Act, 1999,139 enacted as 

part of the Omnibus Consolidated and 

Emergency Supplemental 

Appropriations Act, 1999.140 DHS has 

systematically reviewed the criteria 

specified in section 654(c)(1), by 

evaluating whether this regulatory 

action: (1) impacts the stability or safety 

of the family, particularly in terms of 

marital commitment; (2) impacts the 

authority of parents in the education, 

nurture, and supervision of their 

children; (3) helps the family perform 

its functions; (4) affects disposable 

income or poverty of families and 

children; (5) only financially impacts 

families, if at all, to the extent such 

impacts are justified; (6) may be carried 

out by State or local government or by 

the family; or (7) establishes a policy 

concerning the relationship between the 

behavior and personal responsibility of 

youth and the norms of society. If the 

agency determines a regulation may 

negatively affect family well-being, then 

the agency must provide an adequate 

rationale for its implementation. 

DHS has determined that this rule 

will not negatively affect family wellbeing or the autonomy or integrity of the 

family as an institution, as it does not 

change the process for family credible 

fear screenings. 

H. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This rule does not have Tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does 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. 

I. Executive Order 13045 (Protection of 

Children From Environmental Health 

Risks and Safety Risks) 

Executive Order 13045 requires 

agencies to consider the impacts of 

environmental health risks or safety 

risks that may disproportionately affect 

children. DHS has reviewed this rule 

and have determined that this rule is 

not a covered regulatory action under 

Executive Order 13045. The rule is not 

considered significant under Section 

3(f)(1) of Executive Order 12866 and 

would not create an environmental risk 

to health or risk to safety that might 

disproportionately affect children. 

J. National Environmental Policy Act 

DHS and its components analyze final 

actions to determine whether the 

National Environmental Policy Act 

(NEPA), 42 U.S.C. 4321 et seq., applies 

to them and, if so, what degree of 

analysis is required. DHS Directive 023– 

01 Rev. 01 and Instruction Manual 023– 

01–001–01 Rev. 01 (Instruction 

Manual) 141 establish the policies and 

procedures that DHS and its 

components use to comply with NEPA. 

NEPA implementing procedures 

allow Federal agencies to establish 

categories of actions (‘‘categorical 

exclusions’’) that experience has shown 

do not, individually or cumulatively, 

have a significant effect on the human 

environment and, therefore, do not 

require an environmental assessment 

(EA) or environmental impact statement 

(EIS).142 An agency is not required to 

prepare an EA or EIS for a proposed 

action ‘‘if the proposed agency action is 

excluded pursuant to one of the 

agency’s categorical exclusions.’’ 42 

U.S.C. 4336(a)(2). The Instruction 

Manual, Appendix A lists the DHS 

Categorical Exclusions.143

Under DHS NEPA implementing 

procedures, for an action to be 

categorically excluded, it must satisfy 

each of the following three conditions: 

(1) the entire action clearly fits within 

one or more of the categorical 

exclusions; (2) the action is not a piece 

of a larger action; and (3) no 

extraordinary circumstances exist that 


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144 DHS, ‘‘Instruction Manual 023–01–001–01, 

Revision 01, Implementation of the National 

Environmental Policy Act (NEPA),’’ V.B(2)(a)–(c), 

https://www.dhs.gov/sites/default/files/ 

publications/DHS_Instruction%20Manual%20023- 

01-001-01%20Rev%2001_

508%20Admin%20Rev.pdf. 

create the potential for a significant 

environmental effect.144

The rule allows AOs to apply certain 

bars to asylum and statutory 

withholding of removal at the fear 

screening stage. DHS has determined 

that the promulgation of this rule 

satisfies all three requirements for a 

categorical exclusion. First, the rule fits 

clearly within categorical exclusion A3 

of the Instruction Manual, Appendix A, 

for the promulgation of rules that 

‘‘interpret or amend an existing 

regulation without changing its 

environmental effect.’’ The rule only 

changes the point in time at which 

certain statutory bars are considered but 

would not change any environmental 

effect of the bars. Second, this rule is a 

standalone rule and is not part of any 

larger action. Third, DHS is not aware 

of any extraordinary circumstances that 

would cause a significant environmental 

impact. Therefore, this rule is 

categorically excluded, and no further 

NEPA analysis or documentation is 

required. 

K. Paperwork Reduction Act 

This rule does not propose new, or 

revisions to existing, ‘‘collection[s] of 

information’’ as that term is defined 

under the Paperwork Reduction Act of 

1995 (Pub. L. 104–13, 109 Stat. 163, 44 

U.S.C. chapter 35) and its implementing 

regulations, 5 CFR part 1320. 

List of Subjects in 8 CFR Part 208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

Accordingly, for the reasons set forth 

in the preamble, the Secretary of 

Homeland Security amends 8 CFR part 

208 as set forth below. 

■ 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 § 208.30 by revising the first 

sentence of paragraph (e)(2) and revising 

paragraph (e)(5) 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. 

* * * * * 

(e) * * * 

(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, including that the 

alien is not subject to a mandatory bar, 

if considered under paragraph (e)(5)(ii) 

of this section. * * * 

* * * * * 

(5) Except as provided in paragraph 

(e)(6) or (7) of this section: 

(i) 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)(A)(vi) of the 

Act, the Department of Homeland 

Security shall nonetheless issue a 

Notice to Appear or retain jurisdiction 

over the alien’s case for further 

consideration of the alien’s claim 

pursuant to paragraph (f) of this section, 

if the alien is not a stowaway. 

(ii) If an alien, who is unable to 

establish a credible fear of torture, is 

able to establish a credible fear of 

persecution but appears to be subject to 

one or more of the mandatory bars to 

being granted either asylum or 

withholding of removal, as set forth in 

section 208(b)(2)(A)(i) through (v) of the 

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

respectively, the asylum officer may 

consider the applicability of such bar(s) 

as part of the asylum officer’s credible 

fear determination. 

(A) The asylum officer shall issue a 

negative credible fear finding with 

regard to the alien’s eligibility for 

asylum or withholding of removal under 

the Act if the asylum officer determines 

there is not a significant possibility that, 

in a proceeding on the merits, the alien 

would be able to establish by a 

preponderance of the evidence that such 

bar(s) do not apply. 

(B) The asylum officer shall issue a 

Notice to Appear or retain jurisdiction 

over the alien’s case for further 

consideration of the alien’s claim 

pursuant to paragraph (f) of this section, 

if the asylum officer finds that there is 

a significant possibility that, in a 

proceeding on the merits, the alien 

would be able to establish by a 

preponderance of the evidence that such 

bar(s) do not apply. 

(iii) In all cases, if the alien is a 

stowaway and the Department would 

otherwise initiate proceedings under 

paragraphs (e)(5)(i) and (ii) of this 

section, the Department shall place the 

alien in proceedings for consideration of 

the alien’s claim pursuant to 

§ 208.2(c)(3) and shall not retain 

jurisdiction over the case for further 

consideration nor issue a Notice to 

Appear. 

* * * * * 

■ 3. Amend § 208.31 by revising 

paragraphs (c) and (g) to read as follows: 

§ 208.31 Reasonable fear of persecution or 

torture determinations involving aliens 

ordered removed under section 238(b) of 

the Act and aliens whose removal is 

reinstated under section 241(a)(5) of the 

Act. 

* * * * * 

(c) Interview and procedure. The 

asylum officer shall conduct the 

interview in a non-adversarial manner, 

separate and apart from the general 

public. At the time of the interview, the 

asylum officer shall determine that the 

alien has an understanding of the 

reasonable fear determination process. 

The alien may be represented by 

counsel or an accredited representative 

at the interview, at no expense to the 

Government, and may present evidence, 

if available, relevant to the possibility of 

persecution or torture. The alien’s 

representative may present a statement 

at the end of the interview. The asylum 

officer, in his or her discretion, may 

place reasonable limits on the number 

of persons who may be present at the 

interview and the length of the 

statement. If the alien is unable to 

proceed effectively in English, and if the 

asylum officer is unable to proceed 

competently in a language chosen by the 

alien, the asylum officer shall arrange 

for the assistance of an interpreter in 

conducting the interview. The 

interpreter may not be a representative 

or employee of the applicant’s country 

or nationality, or if the applicant is 

stateless, the applicant’s country of last 

habitual residence. The asylum officer 

shall create a summary of the material 

facts as stated by the applicant. At the 

conclusion of the interview, the officer 

shall review the summary with the alien 

and provide the alien with an 

opportunity to correct errors therein. 

The asylum officer shall create a written 

record of his or her determination, 

including a summary of the material 

facts as stated by the applicant, any 

additional facts relied on by the officers, 

and the officer’s determination of 

whether, in light of such facts, the alien 

has established a reasonable fear of 

persecution or torture. The alien shall 

be determined to have a reasonable fear 

of persecution if the alien establishes a 

reasonable possibility that he or she 

would be persecuted on account of his 


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or her race, religion, nationality, 

membership in a particular social group 

or political opinion, unless the alien 

appears to be subject to one or more of 

the mandatory bars to being granted 

withholding of removal under the Act 

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

Act and the alien fails to show that there 

is a reasonable possibility that no 

mandatory bar applies, if the asylum 

officer considers such bars. The alien 

shall be determined to have a reasonable 

fear of torture if the alien establishes a 

reasonable possibility that he or she 

would be tortured in the country of 

removal. 

* * * * * 

(g) Review by immigration judge. The 

asylum officer’s negative decision 

regarding reasonable fear shall be 

subject to review by an immigration 

judge upon the alien’s request. If the 

alien requests such review, the asylum 

officer shall serve him or her with a 

Notice of Referral to Immigration Judge. 

The record of determination, including 

copies of the 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. The 

immigration judge’s review shall 

proceed under the procedures set forth 

in 8 CFR 1208.31(g). 

■ 4. Amend § 208.33 by revising 

paragraphs (b)(2)(i) through (iii) to read 

as follows: 

§ 208.33 Lawful pathways condition on 

asylum eligibility. 

* * * * * 

(b) * * * 

(2) * * * 

(i) In cases in which the asylum 

officer enters a negative credible fear 

determination under paragraph (b)(1)(i) 

of this section, the asylum officer will 

assess whether the alien has established 

a reasonable possibility of persecution 

(meaning a reasonable possibility of 

being persecuted because of their race, 

religion, nationality, membership in a 

particular social group, or political 

opinion) or torture, with respect to the 

identified country or countries of 

removal identified pursuant to section 

241(b) of the Act. As part of this 

reasonable possibility determination, if 

there is evidence that the alien is subject 

to one or more of the mandatory bars to 

being granted withholding of removal 

under the Act contained in section 

241(b)(3)(B) of the Act, the asylum 

officer may consider the applicability of 

such bar(s). 

(ii) In cases described in paragraph 

(b)(2)(i) of this section, if the alien 

establishes a reasonable possibility of 

persecution with respect to the 

identified country or countries of 

removal and, to the extent bars are 

considered, that there is a reasonable 

possibility that no mandatory bar 

applies, the Department will issue a 

Form I–862, Notice to Appear. If the 

alien establishes a reasonable possibility 

of torture with respect to the identified 

country or countries of removal, the 

Department will issue a Form I–862, 

Notice to Appear. 

(iii) In cases described in paragraph 

(b)(2)(i) of this section, if an alien fails 

to establish a reasonable possibility of 

persecution with respect to the 

identified country or countries of 

removal or, to the extent bars are 

considered, fails to establish that there 

is a reasonable possibility that no 

mandatory bar applies, and fails to 

establish a reasonable possibility of 

torture with respect to the identified 

country or countries of removal, the 

asylum officer will provide the alien 

with a written notice of decision and 

inquire whether the alien wishes to 

have an immigration judge review the 

negative credible fear determination. 

* * * * * 

Alejandro N. Mayorkas, 

Secretary, U.S. Department of Homeland 

Security. 

[FR Doc. 2024–29617 Filed 12–17–24; 8:45 am] 

BILLING CODE 9111–97–P 


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