```

[Federal Register Volume 89, Number 248 (Friday, December 27, 2024)]
[Rules and Regulations]
[Pages 105392-105403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30500]

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

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1208

[EOIR Docket No. 025-0910; A.G. Order No. 6107-2024]
RIN 1125-AB33

Clarification Regarding Bars to Eligibility During Credible Fear 
and Reasonable Fear Review

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Interim final rule; request for comment.

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

SUMMARY: This interim final rule (``IFR'') makes a technical amendment 
to Department of Justice (``Department'') regulations to clarify that 
immigration judges' de novo review of asylum officers' credible fear 
and reasonable fear determinations shall, where relevant, include 
review of the asylum officer's application of any bars to asylum or 
withholding of removal under Department of Homeland Security (``DHS'') 
regulations, as well as other clarifying technical changes related to 
credible fear and reasonable fear processes.

DATES: 
    Effective date: This interim final rule is effective December 27, 
2024.
    Comments: Electronic comments must be submitted, and written 
comments must be postmarked or otherwise indicate a shipping date on or 
before January 27, 2025. The electronic Federal Docket Management 
System (FDMS) at https://www.regulations.gov will accept electronic 
comments until 11:59 p.m. Eastern Time on that date.

ADDRESSES: If you wish to provide comments regarding this rulemaking, 
you must submit comments, identified by the agency name and reference 
RIN 1125-AB33 or EOIR Docket No. 025-0910, by one of the two methods 
below.
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the website instructions for submitting comments.
     Mail: Paper comments that duplicate an electronic 
submission are unnecessary. If you wish to submit a paper comment in 
lieu of electronic submission, please direct the mail/shipment to: 
Sarah Flinn, Acting Assistant Director for Policy, Office of Policy, 
Executive Office for Immigration Review, Department of Justice, 5107 
Leesburg Pike, Suite 1800, Falls Church, VA 22041. To ensure proper 
handling, please reference the agency name and RIN 1125-AB33 or EOIR 
Docket No. 025-0910 on your correspondence. Mailed items must be 
postmarked or otherwise indicate a shipping date on or before the 
submission deadline.

FOR FURTHER INFORMATION CONTACT: Sarah Flinn, Acting Assistant Director 
for Policy, Office of Policy, Executive Office for Immigration Review, 
Department of Justice, 5107 Leesburg Pike, Falls Church, VA 22041; 
telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this IFR 
via one of the methods and by the deadline stated above. The Department 
also invites comments that relate to the economic, environmental, or 
federalism effects that might result from this IFR. Comments that will 
provide the most assistance to the Department will reference a specific 
portion of the IFR; explain the reason for any recommended change; and 
include data, information, or authority that support such recommended 
change.
    Please note that all comments received are considered part of the 
public record and made available for public inspection at 
www.regulations.gov. Such information includes personally identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personally identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONALLY 
IDENTIFYING INFORMATION'' in the first paragraph of your comment and 
identify what information you want redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify the confidential 
business information to be redacted

[[Page 105393]]

within the comment. If a comment has so much confidential business 
information that it cannot be effectively redacted, all or part of that 
comment may not be posted on www.regulations.gov.
    Personally identifiable information located as set forth above will 
be placed in the agency's public docket file, but not posted online. 
Confidential business information identified and located as set forth 
above will not be placed in the public docket file. The Department may 
withhold from public viewing information provided in comments that it 
determines may impact the privacy of an individual or is offensive. For 
additional information, please read the ``Privacy & Security Notice'' 
that is available via the link in the footer of www.regulations.gov. To 
inspect the agency's public docket file in person, you must make an 
appointment with the agency. Please see the FOR FURTHER INFORMATION 
CONTACT paragraph above for agency contact information.

II. Legal Authority

    The Department issues this IFR pursuant to section 103(g) of the 
Immigration and Nationality Act (``INA''), 8 U.S.C. 1103(g), as amended 
by the Homeland Security Act of 2002 (``HSA''), Public Law 107-296, 116 
Stat. 2135 (as amended). Under the HSA, the Attorney General is charged 
with ``such authorities and functions under [the INA] and all other 
laws relating to the immigration and naturalization of [noncitizens] 
\1\ as were [previously] exercised by the Executive Office for 
Immigration Review [(``EOIR'')], or by the Attorney General with 
respect to [EOIR].'' INA 103(g)(1), 8 U.S.C. 1103(g)(1); see also 6 
U.S.C. 521. The Attorney General also has the authority to ``establish 
such regulations, . . . issue such instructions, review such 
administrative determinations in immigration proceedings, delegate such 
authority, and perform such other acts as the Attorney General 
determines to be necessary for carrying out'' the Attorney General's 
authorities under the INA. INA 103(g)(2), 8 U.S.C. 1103(g)(2). These 
authorities cover forms of relief or protection from removal, including 
asylum, statutory withholding of removal under section 241(b)(3) of the 
INA, 8 U.S.C. 1231(b)(3), and protection under the regulations 
implementing U.S. obligations under Article 3 of the Convention Against 
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 
(``CAT'').\2\
---------------------------------------------------------------------------

    \1\ For purposes of the discussion in this preamble, the 
Department uses the term ``noncitizen'' synonymously with the term 
``alien'' as it is used in the INA. See INA 101(a)(3), 8 U.S.C. 
1101(a)(3); 8 CFR 1001.1(gg).
    \2\ Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment art. 3, Dec. 10, 1984, S. Treaty 
Doc. No. 100-20, 1465 U.N.T.S. 85, 114.
---------------------------------------------------------------------------

    Noncitizens who are physically present or arrive in the United 
States as provided in section 208 of the INA, 8 U.S.C. 1158, may apply 
for asylum, subject to certain exceptions in section 208(a)(2) of the 
INA, 8 U.S.C. 1158(a)(2). By statute, certain noncitizens are 
ineligible to apply for or to be granted asylum, and Congress has 
delegated to the Attorney General the authority to establish additional 
limitations and conditions, consistent with applicable statutes, under 
which noncitizens shall be ineligible for asylum. See INA 208(b)(2)(A), 
8 U.S.C. 1158(b)(2)(A) (statutory bars to asylum); INA 208(b)(2)(C), 8 
U.S.C. 1158(b)(2)(C) (additional limitation authority); INA 
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (allowing for additional 
regulatory conditions or limitations on consideration of asylum 
applications). The Attorney General is also charged with providing a 
review procedure for negative credible fear determinations regarding 
asylum made by an asylum officer during the expedited removal process. 
See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III).
    Additionally, the United States is a party to the 1967 United 
Nations Protocol Relating to the Status of Refugees, January 31, 1967, 
19 U.S.T. 6223, 606 U.N.T.S. 268 (``Refugee Protocol''), which 
incorporates Articles 2 through 34 of the 1951 Convention Relating to 
the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 
(``Refugee Convention''). Article 33 of the Refugee Convention 
generally prohibits parties to the Convention from expelling or 
returning ``a refugee in any manner whatsoever to the frontiers of 
territories where his life or freedom would be threatened on account of 
his race, religion, nationality, membership of a particular social 
group or political opinion.'' 19 U.S.T. at 6276. Congress codified 
these obligations in the Refugee Act of 1980, creating the precursor to 
what is now known as statutory withholding of removal.\3\ 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.\4\ See INA 
241(b)(3), 8 U.S.C. 1231(b)(3); see also 8 CFR 208.16, 1208.16. By 
statute, certain noncitizens are ineligible for statutory withholding 
of removal. See INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B) (establishing 
bars to statutory withholding of removal).
---------------------------------------------------------------------------

    \3\ Public Law 96-212, 94 Stat. 102 (``Refugee Act'').
    \4\ See INS v. Aguirre-Aguirre, 526 U.S. 415, 426-27 (1999); see 
also INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987) 
(distinguishing between Article 33's non-refoulement prohibition, 
which aligns with what was then called withholding of deportation, 
and Article 34's call to ``facilitate the assimilation and 
naturalization of refugees,'' which the Court found aligned with the 
discretionary provisions in section 208 of the INA, 8 U.S.C. 1158). 
The Refugee Convention and Refugee Protocol are not self-executing. 
See, e.g., Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) 
(``The 1967 Protocol is not self-executing, nor does it confer any 
rights beyond those granted by implementing domestic 
legislation.'').
---------------------------------------------------------------------------

    Separately, the Department also has authority to implement Article 
3 of the United Nations Convention Against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty 
Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States 
Nov. 20, 1994). The Foreign Affairs Reform and Restructuring Act of 
1998 (``FARRA'') provides the Department with the authority to 
``prescribe regulations to implement the obligations of the United 
States under Article 3 of the [CAT], subject to any reservations, 
understandings, declarations, and provisos contained in the United 
States Senate resolution of ratification of the Convention.'' Public 
Law 105-277, div. G, sec. 2242(b), 112 Stat. 2681, 2681-822 (8 U.S.C. 
1231 note). The Department has implemented the United States' 
obligations under Article 3 of the CAT by regulation, consistent with 
FARRA. See, e.g., 8 CFR 1208.16(c)-1208.18; Regulations Concerning the 
Convention Against Torture, 64 FR 8478 (Feb. 19, 1999), amended by 64 
FR 13881 (Mar. 23, 1999).

III. Background

A. Asylum and Related Protection

    Asylum is a discretionary form of relief for noncitizens who 
establish, among other things, that they have experienced past 
persecution or have a well-founded fear of future persecution on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion. INA 208(b)(1), 8 U.S.C. 1158(b)(1) 
(providing that the Attorney General ``may'' grant asylum to

[[Page 105394]]

refugees); INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining 
``refugee'').
    Noncitizens who are ineligible, by statute or regulation, to apply 
for or to be granted asylum, or who are denied asylum as a matter of 
discretion, nonetheless may qualify for other forms of protection from 
removal.\5\ Specifically, such an applicant may be eligible for 
statutory withholding of removal under section 241(b)(3) of the INA, 8 
U.S.C. 1231(b)(3). Statutory withholding of removal prevents a 
noncitizen's removal to any country where the noncitizen's life or 
freedom would ``more likely than not'' be threatened because of a 
protected ground. See generally 8 CFR 1208.16(b)(2) (withholding of 
removal under the INA); see also INS v. Stevic, 467 U.S. 407, 413, 424 
(1984) (holding that the ``clear probability'' or ``more likely than 
not'' standard applies to withholding of deportation); INS v. Cardoza-
Fonseca, 480 U.S. 421, 449 (1987) (holding that, while withholding of 
removal requires a showing that it is ``more likely than not'' that a 
noncitizen would be subject to persecution, an applicant for asylum 
must only demonstrate a ``well-founded fear'' of persecution).
---------------------------------------------------------------------------

    \5\ Applications for asylum are treated as applications for 
statutory withholding of removal and protection under the CAT, where 
relevant. See 8 CFR 1208.3(b) (treating an asylum application as an 
application for statutory withholding of removal), 1208.13(c)(1) 
(explaining that an asylum applicant shall also be considered for 
CAT protection ``if the applicant requests such consideration or if 
the evidence presented by the [noncitizen] indicates that the 
[noncitizen] may be tortured in the country of removal'').
---------------------------------------------------------------------------

    Additionally, noncitizens who express a fear of torture may be 
eligible for protection under the CAT, which is available in two forms: 
withholding of removal or deferral of removal. See 8 CFR 1208.16(c) 
(CAT withholding of removal), 1208.17 (CAT deferral of removal), 
1208.18 (CAT implementation). Both withholding of removal and deferral 
of removal under the CAT prevent a noncitizen's removal to any country 
where the noncitizen is ``more likely than not'' to be tortured. 8 CFR 
1208.16(c), 1208.17, 1208.18.
    The INA includes several statutory bars to asylum, which can affect 
a noncitizen's ability to apply for, or their eligibility for, such 
relief. Compare INA 208(a)(2), 8 U.S.C. 1158(a)(2) (bars to applying 
for asylum), with INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A) (bars to 
eligibility for asylum). For example, the statute contains six 
mandatory bars to asylum eligibility, covering any noncitizen: (1) who 
``ordered, incited, assisted, or otherwise participated in the 
persecution of any person on account of'' a protected ground; (2) who, 
``having been convicted by a final judgment of a particularly serious 
crime, constitutes a danger to the community of the United States;'' 
(3) for whom ``there are serious reasons for believing'' that the 
noncitizen ``has committed a serious nonpolitical crime outside the 
United States'' prior to arrival in the United States; (4) for whom 
``there are reasonable grounds for regarding'' as ``a danger to the 
security of the United States;'' (5) who is described in the terrorism-
related inadmissibility grounds, with limited exception; or (6) who 
``was firmly resettled in another country prior to arriving in the 
United States.'' See INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A).
    The statute also includes four similar mandatory bars to 
withholding of removal eligibility for a noncitizen: (1) who ``ordered, 
incited, assisted, or otherwise participated in the persecution of an 
individual because of the individual's race, religion, nationality, 
membership in a particular social group, or political opinion''; (2) 
who, having been convicted by a final judgment of a particularly 
serious crime, is a danger to the community of the United States; (3) 
for whom ``there are serious reasons to believe'' that the noncitizen 
committed a serious nonpolitical crime outside the United States before 
their arrival in the United States; or (4) for whom ``there are 
reasonable grounds to believe that'' the noncitizen is a danger to the 
security of the United States, including for engaging in terrorist 
activities as described in INA 237(a)(4)(B), 8 U.S.C. 1227(a)(4)(B).\6\ 
See INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B).
---------------------------------------------------------------------------

    \6\ The statute sets forth another bar to withholding of removal 
eligibility for those who participated in Nazi persecution, 
genocide, or the commission of any act of torture or extrajudicial 
killing. INA 237(a)(4)(D), 8 U.S.C. 1227(a)(4)(D). This bar does not 
apply to noncitizens in expedited removal, as it only applies to 
noncitizens who are ``deportable'' under section 237(a)(4)(D) of the 
INA, 8 U.S.C. 1227(a)(4)(D), i.e., admitted noncitizens. However, 
this bar could be relevant for purposes of reasonable fear 
screening, as it could be applied to admitted noncitizens subject to 
administrative removal under section 238 of the INA, 8 U.S.C. 1228 
(expedited removal of noncitizens convicted of committing aggravated 
felonies).
---------------------------------------------------------------------------

    Regarding protection under the CAT, noncitizens who are subject to 
a bar to statutory withholding of removal pursuant to section 
241(b)(3)(B) of the INA, 8 U.S.C. 1231(b)(3)(B), are likewise 
ineligible for withholding of removal under the CAT. See 8 CFR 
1208.16(d)(2) (explaining that ``an application for withholding of 
removal . . . under the Convention Against Torture shall be denied if 
the applicant falls within section 241(b)(3)(B) of the Act''). However, 
there are no bars to deferral of removal under the regulations 
implementing the CAT. See 8 CFR 1208.17(a); but see 8 CFR 
1208.17(d)(4), (e) and (f) (explaining instances where deferral of 
removal may be terminated). Thus, a noncitizen who is entitled to 
protection under the CAT but is subject to a mandatory bar to CAT 
withholding of removal ``shall be granted deferral of removal'' as a 
limited form of protection. 8 CFR 1208.17(a). In other words, granting 
deferral of removal under the CAT is mandatory for noncitizens who 
establish eligibility for such protection. Id.

B. Credible Fear and Reasonable Fear Screening Processes

    In the Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996 (``IIRIRA''), Public Law 104-208, div. C, 110 Stat. 3009, 3009-
546, Congress established the expedited removal process. See INA 
235(b)(1), 8 U.S.C. 1225(b)(1). The process is applicable to 
noncitizens arriving in the United States (and, in the discretion of 
the Secretary of Homeland Security, certain other designated classes of 
noncitizens) who are found to be inadmissible under certain provisions 
of the INA. See INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i) 
(applying the expedited removal process to noncitizens inadmissible 
under section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C) 
(inadmissible based on material misrepresentations), and section 
212(a)(7) of the INA, 8 U.S.C. 1182(a)(7) (documentation requirements 
for admission)).
    In the expedited removal process, such noncitizens may be ``removed 
from the United States without further hearing or review unless the 
[noncitizen] indicates either an intention to apply for asylum under 
section 1158 of this title or a fear of persecution.'' INA 
235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). If a noncitizen indicates 
an intention to apply for asylum, a fear of persecution or torture, or 
a fear of return, DHS uses a ``credible fear'' screening to identify 
potentially valid claims for asylum, statutory withholding of removal, 
and CAT protection, so as to prevent noncitizens placed in expedited 
removal from being removed to a country in which they would face 
persecution or torture without further consideration of their fear 
claim. See INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); 
see also 8 CFR 235.3(b)(4), 208.30(b).
    To implement the credible fear screening process, such noncitizens 
are referred for an interview by a U.S. Citizenship and Immigration 
Services

[[Page 105395]]

(``USCIS'') asylum officer to determine whether the noncitizen has a 
credible fear of persecution or torture. INA 235(b)(1)(A)(ii), (B), 8 
U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4). 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 officer, that the [noncitizen] could 
establish eligibility for asylum under section 1158 of [the INA].'' INA 
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). The credible fear screening 
by the asylum officer may also include consideration of certain 
limitations on, or presumptions against, asylum eligibility. See, e.g., 
Circumvention of Lawful Pathways, 88 FR 31314, 31450 (May 16, 2023) 
(codifying the lawful pathways condition on asylum eligibility at 8 CFR 
208.33 and 1208.33); Securing the Border, 89 FR 81156 (Oct 7, 2024) 
(codifying a limitation on asylum eligibility for certain noncitizens 
who enter during emergency border circumstances).
    During the screening process, such cases may be referred to EOIR 
for the limited purpose of having an immigration judge review the 
asylum officer's determination that a noncitizen does not have a 
credible fear of persecution or torture. INA 235(b)(1)(B)(iii)(III), 8 
U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g)(1). Specifically, if 
the asylum officer determines that the noncitizen does not have a 
credible fear of persecution or torture, the noncitizen may request 
that an immigration judge review that determination. Id.; 8 CFR 
208.30(g), 208.33(b), 208.35(b)(2)(v), 1208.30(g), 1208.33(b), 
1208.35(b). This process is generally known as a ``credible fear 
review.'' See, e.g., 8 CFR 1003.42 (``Review of credible fear 
determinations''). Such reviews are intended to be concluded ``as 
expeditiously as possible, to the maximum extent practicable within 24 
hours, but in no case later than 7 days'' after the asylum officer's 
determination. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III). No further appeal is available from a credible 
fear review.\7\ See 8 CFR 1003.42(f).
---------------------------------------------------------------------------

    \7\ Although a noncitizen may not appeal an immigration judge's 
negative credible fear finding, USCIS may, in its discretion, 
reconsider a negative credible fear determination where such 
requests are available and initiated within the timeframe set forth 
by regulation. See 8 CFR 208.30(g)(1)(i); see also 
208.33(b)(2)(v)(C) (discretionary USCIS reconsideration under Lawful 
Pathways rule); 208.35(b)(2)(v)(B) (same for Securing the Border 
rule).
---------------------------------------------------------------------------

    Separately, reasonable fear proceedings involve noncitizens who 
have been ordered removed under section 238(b) of the INA, 8 U.S.C. 
1228(b), based on an aggravated felony conviction, or whose prior 
orders of removal have been reinstated under section 241(a)(5) of the 
INA, 8 U.S.C. 1231(a)(5), but who express a fear of returning to the 
country of removal. See 8 CFR 208.31(a); 1208.31(a). The reasonable 
fear screening process was established by regulation to fulfill a 
statutory mandate to implement, in part, the United States' obligations 
under Article 3 of the CAT. See Regulations Concerning the Convention 
Against Torture, 64 FR at 8478 (``This rule is published pursuant to 
this mandate to implement United States obligations under Article 3 in 
the context of the Attorney General's removal of [noncitizens] . . . 
.''). Specifically, the reasonable fear screening process was 
established to provide for the fair resolution of claims to withholding 
of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and 
protection under the regulations implementing U.S. obligations under 
Article 3 of the CAT, without unduly disrupting the streamlined removal 
processes applicable to these noncitizens. Id. at 8479.
    Similar to credible fear screenings, noncitizens who express fear 
are referred to an asylum officer for a reasonable fear screening. See 
8 CFR 208.31(b)-(c); see also Regulations Concerning the Convention 
Against Torture, 64 FR at 8485 (explaining that the reasonable fear 
process is ``modeled on the credible fear screening process''). 
However, unlike those in the credible fear process, noncitizens subject 
to the reasonable fear process are categorically ineligible for asylum 
by virtue of their aggravated felony conviction, INA 208(b)(2)(A)(ii), 
(B), 8 U.S.C. 1158(b)(2)(A)(ii), (B) (barring from asylum those 
convicted of an aggravated felony), or being subject to reinstatement, 
INA 241(b)(5), 8 U.S.C. 1231(b)(5) (rendering those whose removal 
orders have been reinstated ineligible and unable to apply for any 
``relief''). Rather, the asylum officer determines whether the 
noncitizen has a reasonable fear of persecution or torture upon removal 
and is therefore eligible for consideration of statutory withholding of 
removal or CAT protection. See 8 CFR 208.31(c). A ``reasonable fear of 
persecution or torture'' means that there is a reasonable possibility 
that the noncitizen would be persecuted because of their race, 
religion, nationality, membership in a particular social group, or 
political opinion, or a reasonable possibility that the noncitizen 
would be tortured if returned to the country of removal. 8 CFR 
208.31(c).
    Such cases may be referred to EOIR for the limited purpose of 
having an immigration judge review the asylum officer's determination 
that a noncitizen does not have a reasonable fear of persecution or 
torture. See 8 CFR 1208.31(g) (``Review by immigration judge''). If the 
asylum officer determines that the noncitizen does not have a 
reasonable fear of persecution or torture, the noncitizen may request 
that an immigration judge review that determination. See 8 CFR 
1208.31(f). This is generally known as a ``reasonable fear review.'' 
Such reviews are intended to be conducted within 10 days of filing the 
referral with the immigration court. See 8 CFR 1208.31(g). No further 
administrative appeal is available from a negative reasonable fear 
determination. See 8 CFR 1208.31(g)(1).
    During both credible fear and reasonable fear reviews, immigration 
judges review de novo an asylum officer's determination that a 
noncitizen does not have a credible fear or reasonable fear, as 
applicable. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III) (providing for prompt review of an asylum 
officer's determination that a noncitizen does not have a credible fear 
of persecution); 8 CFR 1003.42(a) (requiring DHS to file the written 
record of determination with the immigration judge for credible fear 
review), 1208.31(g) (same for reasonable fear review). The immigration 
judge's review may include consideration of certain limitations on, or 
presumptions against, asylum eligibility. See, e.g., 8 CFR 1208.33(b) 
(review of the lawful pathways condition on asylum eligibility), 
1208.35(b) (review of the limitation on asylum eligibility for certain 
noncitizens who enter during emergency border circumstances).
    However, asylum officers historically have not considered the 
applicability of mandatory bars to asylum or withholding of removal 
contained in INA 208(a)(2), (b)(2)(A), 8 U.S.C. 1158(a)(2), (b)(2)(A), 
or INA 241(b)(3)(B), 8 U.S.C. 1241(b)(3)(B), during credible fear and 
reasonable fear screenings, and accordingly, immigration judges have 
not reviewed the application of those bars during review of credible 
fear and reasonable fear determinations. But in recent years, there 
have been a number of regulations seeking to permit or mandate the

[[Page 105396]]

consideration of some or all of these bars during the credible fear 
process--followed, in some cases, by regulations reversing that 
approach.
    As one example, in 2020, DHS and DOJ amended the Departments' 
regulations to instruct asylum officers and immigration judges to apply 
certain mandatory bars during the credible fear process. See Procedures 
for Asylum and Withholding of Removal; Credible Fear and Reasonable 
Fear Review, 85 FR 80274, 80278 (Dec. 11, 2020) (``Global Asylum 
Rule''). On January 8, 2021, the Global Asylum Rule was enjoined before 
its effective date. Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 966, 
977 (N.D. Cal. 2021).
    Subsequently, in 2022, the Department and DHS issued a joint rule 
amending the credible fear regulations at 8 CFR 208.30(e)(5), 8 CFR 
1003.42, and 8 CFR 1208.30, as relevant here, returning the regulatory 
text to the pre-Global Asylum Rule approach where asylum officers do 
not consider the applicability of mandatory bars for credible fear 
determinations, and therefore, immigration judges do not consider the 
applicability of bars in reviewing such determinations. See Procedures 
for Credible Fear Screening and Consideration of Asylum, Withholding of 
Removal, and CAT Protection Claims by Asylum Officers, 87 FR 18078, 
18219, 18221-22 (Mar. 29, 2022) (``Asylum Processing IFR'').
    Most recently, in December 2024, DHS issued a rule to allow asylum 
officers to consider the potential applicability of certain bars to 
asylum and statutory withholding of removal during credible fear and 
reasonable fear screenings. See 89 FR 103370 (Dec. 18, 2024) (``DHS 
Mandatory Bars''). Specifically, the rule allows asylum officers to 
apply the mandatory asylum and withholding of removal bars relating to 
national security and public safety as set forth in INA 208(b)(2)(A)(i) 
through (v), 8 U.S.C. 1158(b)(2)(A)(i) through (v) and INA 
241(b)(3)(B), 8 U.S.C. 1241(b)(3)(B), during credible fear and 
reasonable fear screenings in certain instances. See id.

IV. Description of the Interim Final Rule

A. Credible Fear and Reasonable Fear Review

    The Department is issuing this IFR to make a technical amendment to 
EOIR's regulations in order to clarify the scope of an immigration 
judge's credible fear or reasonable fear review. Upon a noncitizen's 
request, immigration judges have always reviewed--and will continue to 
review--the underlying asylum officer determinations made during 
credible fear or reasonable fear screenings that a noncitizen could not 
establish potential eligibility for relief or protection. This rule 
clarifies that an immigration judge's de novo review of an asylum 
officer's credible fear or reasonable fear determination includes 
review of the asylum officer's application of any bars to asylum and 
withholding of removal considered by the asylum officer pursuant to DHS 
regulations. See 8 CFR 1003.42(d) (credible fear review), 1208.31(g) 
(reasonable fear review), 1208.33(b) (credible fear review after 
application of the lawful pathways rebuttable presumption of asylum 
ineligibility). This housekeeping measure ensures that immigration 
judges consider the asylum officers' determinations made regarding 
credible fear and reasonable fear, including their application of any 
bars to asylum and withholding of removal, consistent with the 
statutory scheme. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III) (statutory review role); 8 CFR 1003.42(d) 
(credible fear review), 1208.31(g) (reasonable fear review), 1208.33(b) 
(credible fear review after application of the lawful pathways 
rebuttable presumption of asylum ineligibility).
    With respect to credible fear screenings, this housekeeping 
clarification accords with the statutory scheme set forth by the INA. 
The INA charges asylum officers with making determinations whether a 
noncitizen has demonstrated a credible fear of persecution, INA 
235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B), and immigration judges with 
reviewing negative credible fear determinations, INA 
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). Consistent 
with this division of screening and review authority, the DHS 
regulations governing asylum officers have always addressed whether or 
not the bars to asylum should be taken into consideration by the asylum 
officer in credible fear screenings. During the long period when asylum 
officers did not apply any of those bars, the EOIR regulations 
governing immigration judges did not expressly address the issue. 
Instead, the EOIR regulations simply provided for de novo review of the 
asylum officer's determination that the noncitizen does not have a 
credible fear of persecution or torture, taking into account any 
additional evidence or testimony provided during the review.
    Similarly, with respect to reasonable fear screenings, this rule 
maintains consistency with the existing regulatory scheme, where asylum 
officers ``determine'' whether the noncitizen has a reasonable fear of 
persecution or torture, 8 CFR 208.31(c), and immigration judges may 
review negative reasonable fear determinations. 8 CFR 1208.31(g). This 
housekeeping measure clarifies that, going forward, the immigration 
judge may continue to review the entirety of an asylum officer's 
negative reasonable fear determination, including application of bars 
during a reasonable fear screening under DHS regulations. This rule 
also adds the words ``de novo'' to state that an ``asylum officer's 
negative decision regarding reasonable fear shall be subject to de novo 
review by an immigration judge,'' 8 CFR 1208.31(g), to explicitly 
codify the standard by which the immigration judge reviews the asylum 
officer's determination.
    This rulemaking is intended to prevent future confusion regarding 
whether an immigration judge's credible fear or reasonable fear review 
will encompass review of the asylum officer's application of bars to 
asylum or withholding of removal, consistent with existing review 
requirements. See INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B) (charging 
DHS with making credible fear determinations and the Department with 
review of those determinations); 8 CFR 1208.31(g) (authorizing 
immigration judges to conduct reasonable fear reviews). This 
clarification is particularly important in light of DHS's December 2024 
rule to allow asylum officers to consider the potential applicability 
of certain bars to asylum and withholding of removal during credible 
fear and reasonable fear screenings. See DHS Mandatory Bars, 89 FR 
103370.
    Moreover, the Department found recent rulemakings regarding the 
credible fear screening process instructive on providing clarity 
regarding immigration judge review during that process. See, e.g., 
Circumvention of Lawful Pathways, 88 FR at 31314; Securing the Border, 
89 FR at 81156. In these rulemakings, DHS and DOJ provided specific 
regulatory provisions regarding immigration judge review of the 
limitation on asylum eligibility or rebuttable presumption of asylum 
ineligibility contained in those rules during credible fear reviews. 
See, e.g., 8 CFR 1208.33(b) (review of the lawful pathways rebuttable 
presumption of asylum ineligibility); 1208.35(b) (review of the 
limitation on asylum eligibility for certain noncitizens who enter 
during emergency border circumstances). The Department believes that 
providing clarity in this rule regarding immigration judge review of 
any bars to asylum or withholding of removal the asylum officer applied

[[Page 105397]]

during the credible fear and reasonable fear process would be similarly 
beneficial.
    Specifically, the Department is modifying EOIR's credible fear 
review regulations to state: ``This determination shall, where 
relevant, include review of the asylum officer's application of any 
bars to asylum and withholding of removal pursuant to 8 CFR 
208.30(e)(5).'' See 8 CFR 1003.42(d). The Department is also amending 
the Circumvention of Lawful Pathways regulatory section to clarify that 
immigration judges' de novo review under 8 CFR 1208.33(b) includes 
review of the asylum officer's application of any bars to withholding 
of removal pursuant to 8 CFR 208.33(b)(2).\8\ See 8 CFR 1208.33(b)(1). 
Similarly, the Department is adding an affirmative sentence stating 
that, during reasonable fear review before EOIR, ``[t]he immigration 
judge's review shall, where relevant, include review of the asylum 
officer's application of any bars pursuant to 8 CFR 208.31(c).'' See 8 
CFR 1208.31(g).
---------------------------------------------------------------------------

    \8\ In amending these regulatory sections, the Department has 
determined that it is unnecessary to also amend the Securing the 
Border regulatory section at 8 CFR 1208.35. First, noncitizens who 
are not subject to that rule's limitation on asylum eligibility 
during the credible fear process are instead screened by asylum 
officers pursuant to the procedures outlined in 8 CFR 208.30 or 
208.33, as applicable. Accordingly, in those cases, immigration 
judges will continue to review negative credible fear determinations 
under 8 CFR 1003.42 or 1208.33(b), as applicable, and this rule 
amends both of those sections to clarify immigration judges' 
authority to review the asylum officer's application of any of the 
mandatory bars to asylum or withholding of removal during the 
credible fear process. Second, noncitizens who are subject to the 
Securing the Border rule's limitation on asylum eligibility during 
the credible fear process will receive a negative credible fear 
determination with respect to the noncitizen's asylum claim because 
of that rule's limitation on asylum, not because of the application 
of any mandatory bar. These individuals are further screened for 
potential eligibility for statutory withholding of removal and CAT 
protection, but the Securing the Border rule does not create a free-
standing process for such screenings. Rather, such noncitizens are 
screened for a reasonable probability of establishing eligibility 
for statutory withholding of removal or CAT protection under the 
procedures outlined in the existing Circumvention of Lawful Pathways 
regulatory section at 8 CFR 208.33(b)(2)(ii), see 8 CFR 
208.35(b)(2)(iii), and this rule amends the Circumvention of Lawful 
Pathways provision at 8 CFR 1208.33(b) to clarify immigration 
judges' authority to consider the asylum officer's application of 
any mandatory bars to withholding of removal during credible fear 
reviews. Accordingly, the Department believes this rule's amendments 
to 8 CFR 1208.33 and 1003.42 are sufficient to clarify that 
immigration judges have authority to review an asylum officer's 
application of any of the mandatory bars even if the noncitizen is 
subject to the limitation on, or presumption against, asylum 
eligibility under the Circumvention of Lawful Pathways or the 
Securing the Border rules.
---------------------------------------------------------------------------

    In making these changes, the Department notes that, while the 
immigration judge's role is to conduct a de novo review of the asylum 
officer's credible or reasonable fear determination, both the statute 
and the regulations contemplate that the immigration judge may make 
their ultimate de novo determination based on the record the asylum 
officer provides, as well as evidence or testimony that was not 
available to the asylum officer. See, e.g., INA 235(b)(1)(B)(iii)(III), 
8 U.S.C. 1225 (b)(1)(B)(iii)(III) (explaining that a credible fear 
review ``shall include an opportunity for the [noncitizen] to be heard 
and questioned by the immigration judge. . . .''); 8 CFR 1003.42(d) 
(noting that, during a credible fear review, the immigration judge will 
``tak[e] 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 immigration judge''); Immigration Court 
Practice Manual, Chapter 7.4(e)(4)(E) (October 25, 2023) (stating that, 
during a reasonable fear review, ``[e]ither party may introduce oral or 
written statements''). This rule, therefore, honors the statutory 
screening and review scheme, while also preserving the existing 
statutory and regulatory recognition that additional evidence or 
testimony may be provided that implicates the noncitizen's credible or 
reasonable fear.
    The Department also notes that there may be instances where review 
of an asylum officer's application of a bar may be unnecessary to make 
a determination as to whether a noncitizen has a credible or reasonable 
fear. For example, if the immigration judge finds that the noncitizen 
could not establish a credible fear or reasonable fear for a separate 
reason unrelated to any bars to asylum or withholding of removal, the 
immigration judge does not need to then conduct further review of the 
asylum officer's application of any bars. See INS v. Bagamasbad, 429 
U.S. 24, 25 (1976) (``As a general rule courts and agencies are not 
required to make findings on issues the decision of which is 
unnecessary to the results they reach.''). This ensures that such 
reviews are ``concluded as expeditiously as possible,'' consistent with 
the statute. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III).
    Further, the Department notes that this rulemaking does not itself 
modify or alter the substantive standards applicable in credible fear 
or reasonable fear screenings. See, e.g., 8 CFR 1003.42(d) (credible 
fear standards), 1208.31(c) (reasonable fear standards), 1208.33(b)(2) 
(credible fear standards under the Circumvention of Lawful Pathways 
rule), 1208.35(b)(2)(iii) (credible fear standards under Securing the 
Border rule). Nor does this rulemaking alter the procedures that 
immigration judges currently follow during credible fear or reasonable 
fear reviews. See generally 8 CFR 1003.42, 1208.30(g), 1208.31(g), 
1208.33(b), 1208.35(b). In short, during credible fear and reasonable 
reviews, immigration judges will continue to make a de novo 
determination as to whether the noncitizen has made a threshold showing 
under the relevant standard that they could establish eligibility for 
asylum, statutory withholding of removal, or protection under the CAT, 
as applicable. This rulemaking simply clarifies that, as part of these 
existing reviews, immigration judges shall, where relevant, review the 
asylum officer's application of any bars to asylum or withholding of 
removal.
    Additionally, the changes in this rulemaking do not affect the 
ability of a noncitizen to pursue or receive deferral of removal under 
the CAT, 8 CFR 1208.16(c)(4) and 1208.17, or the existing processes for 
referring noncitizens with a fear of torture for adjudication of their 
deferral claim, where applicable. See 1208.30(g)(2)(iv)(B) (referrals 
from positive credible fear review); 1208.31(g)(2)(i) (further 
consideration from positive reasonable fear review). There are no bars 
to deferral of removal under the CAT, and noncitizens who demonstrate 
the requisite credible or reasonable fear of torture will continue to 
be able to pursue deferral of removal under the CAT, regardless of an 
asylum officer's application of any bars to asylum or withholding of 
removal specified in DHS regulations. Noncitizens who are referred for 
further proceedings after positive credible or reasonable fear 
determinations, and who then make the requisite showing that they are 
more likely than not to be tortured, will therefore receive deferral of 
removal, without any consideration of those bars.

B. Other Technical Changes

    This rulemaking is also making minor technical edits for 
consistency in the EOIR regulations amended by this rule. For example, 
in 8 CFR 1003.42, the rule decapitalizes the words ``Immigration 
Court'' and ``Immigration Judge'' to read ``immigration court'' and 
``immigration judge.'' Similarly, the rule replaces outdated references 
to ``the Service'' with ``DHS'' and updates references to form titles 
in 8 CFR 1003.42 and 1208.31. The rule also makes two non-substantive 
corrections to inadvertent

[[Page 105398]]

errors in cross-references to the definition of ``victim of a severe 
form of trafficking in persons'' in 8 CFR 1208.33(a)(3)(i)(C) and 
1208.35(a)(2)(i)(C).
    This rulemaking also replaces the term ``alien'' with 
``noncitizen'' in 8 CFR 1003.42, 1208.31, and 1208.33. Similarly, in 8 
CFR 1208.33(a)(2)(i), this rulemaking replaces the phrase 
``unaccompanied alien child as defined in 6 U.S.C. 279(g)(2)'' with the 
phrase ``unaccompanied child as defined in 8 CFR 1001.1(hh).'' These 
changes are consistent with recent terminology usage changes at EOIR. 
See 8 CFR 1001.1(gg) (defining ``noncitizen'' as equivalent to the 
statutory term `` `alien,' as defined in section 101(a)(3) of the 
Act,'' 8 U.S.C. 1101(a)(3)), 1001.1(hh) (defining ``unaccompanied 
child'' as equivalent to the statutory term `` `unaccompanied alien 
child' as defined in 6 U.S.C. 279(g)(2)''); see also Efficient Case and 
Docket Management in Immigration Proceedings, 89 FR at 46787 (adding 
new 8 CFR 1001.1(gg)-(hh)).
    This rule also removes and reserves 8 CFR 1208.31(b) through (d). 
These paragraphs were duplicated from 8 CFR 208.31 as part of the 
reorganization of title 8 following the transfer of functions from the 
former Immigration and Naturalization Service to DHS due to the HSA. 
Aliens and Nationality; Homeland Security; Reorganization of 
Regulations, 68 FR 9824, 9834 (Feb. 28, 2003). Because these paragraphs 
refer to DHS operations performed by asylum officers, not EOIR 
immigration judges, they are therefore unnecessary to maintain in 
EOIR's regulations. The Departments always regarded this duplication as 
temporary and have periodically taken steps to eliminate unnecessary 
duplication. E.g., id. at 9825-26; Background and Security 
Investigations in Proceedings Before Immigration Judges and the Board 
of Immigration Appeals, 70 FR 4743, 4749 & n.7 (Jan. 31, 2005); 
Inflation Adjustment for Civil Monetary Penalties Under Sections 274A, 
274B, and 274C of the Immigration and Nationality Act, 73 FR 10130, 
10132 (Feb. 26, 2008).
    The rule also makes clarifying, technical changes to 8 CFR 
1003.42(a) and 8 CFR 1208.31(g) regarding the record forwarded by DHS 
to the immigration court for credible fear or reasonable fear reviews. 
These technical edits are designed to emphasize that the immigration 
judge's review of the asylum officer's determination will consist of 
the ``complete'' record, as described by statute in the credible fear 
context, and as described by regulation in the reasonable fear context, 
respectively.\9\ In other words, these edits are intended to provide 
clarity for all parties by emphasizing that it is particularly 
important for immigration judges to have the complete record to review 
an asylum officer's application of any bars pursuant to 8 CFR 208.30(e) 
and 8 CFR 208.31(c). See 8 CFR 1003.42(a), (d), 1208.31(g). These edits 
to the EOIR regulations do not, however, substantively or procedurally 
change the content or items that DHS provides to DOJ for the record of 
a credible fear or reasonable fear determination.\10\
---------------------------------------------------------------------------

    \9\ In the credible fear context, by statute, the asylum officer 
``prepare[s] a written record of a determination'' that ``include[s] 
a summary of the material facts as stated by the applicant, such 
additional facts (if any) relied upon by the officer, and the 
officer's analysis of why, in the light of such facts, the 
[noncitizen] has not established a credible fear of persecution'' 
and ``[a] copy of the officer's interview notes.'' INA 
235(b)(1)(B)(iii)(II), 8 U.S.C. 1225(b)(1)(B)(iii)(II). Jurisdiction 
for an immigration judge to review an asylum officer's determination 
commences when DHS files this written record, as defined by the Act, 
and a copy of the noncitizen's request for review, if any, with 
EOIR. 8 CFR 1003.42(a). There is not a corresponding statutory 
provision regarding the record in the reasonable fear context, but 
the regulations require the asylum officer to provide EOIR with 
``[t]he record of determination, including copies of the Notice of 
Referral to the Immigration Judge, the asylum officer's notes, the 
summary of the material facts, and other materials upon which the 
determination was based. . . .'' 8 CFR 1208.31(g).
    \10\ See id.
---------------------------------------------------------------------------

    Next, the rule makes two clarifying edits to the EOIR regulations 
at 8 CFR 1003.42(e). First, the rule amends the regulatory text for 
specificity to include the form number--Form I-869--for the Record of 
Negative Credible Fear Finding and Request for Review. 8 CFR 
1003.42(e). Second, the rule clarifies that the immigration judge's 
review of the negative credible fear determination will conclude no 
later than 7 days after the supervisory asylum officer has ``concurred 
with''--rather than ``approved''--the asylum officer's negative 
credible fear determination for conformity with DHS's terminology 
regarding its internal processes for supervisory review. Id.; see, 
e.g., 8 CFR 208.30(b) (``after supervisory concurrence'') (emphasis 
added), (e)(6)(i) (``[i]f the asylum officer, with concurrence from a 
supervisory asylum officer'') (emphasis added), (e)(7)(i)(A) (same).
    Additionally, this rule makes technical changes to the EOIR 
regulations at 8 CFR 1003.42(d) and 1208.33(b)(2)(i) and (ii) to 
correct two inadvertent omissions and clarify the appropriate countries 
to consider for screenings related to statutory withholding of removal 
and CAT protection. First, at 8 CFR 1003.42(d) and 1208.33(b)(2)(i), 
the Department is adding ``withholding'' and ``deferral'' to the list 
of the forms of relief and protection considered during an immigration 
judge's credible fear review to ensure that immigration judges are 
instructed to screen for both forms of CAT protection. This omission 
was inadvertent in both instances, and amending the provisions in this 
way is thus a mere technical change.
    Relatedly, the Department is also amending 8 CFR 1003.42(d) and 
1208.33(b)(2)(i) and (ii) to make clear that, when screening for 
statutory withholding of removal and both withholding of removal and 
deferral of removal under the CAT, the immigration judge considers 
those forms of protection as to the country or countries of removal 
identified pursuant to section 241(b) of the Act, 8 U.S.C. 1231(b).\11\ 
This is a housekeeping measure to add clarity to the regulation and to 
ensure it is applied consistently with the statute. This is because 
under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and the 
regulations implementing the CAT, both forms of protection prevent 
removal to a specific country only--the proposed country of removal. 
See INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 1208.16(c)(2) (providing 
that it is the noncitizen's burden to establish that they are more 
likely than not to be tortured in the ``proposed country of removal'').
---------------------------------------------------------------------------

    \11\ See also Matter of A-S-M-, 28 I&N Dec. 282, n. 4 (BIA 2021) 
(``DHS has the discretion under section 241(b)(2)(E) of the Act to 
conceivably remove [a noncitizen] to any country that is willing to 
accept him or her, if [sic] unable to remove the [noncitizen] to a 
country designated under sections 241(b)(2)(A) through (D) of the 
Act. However, where the DHS states that an applicant in withholding-
only proceedings may be removed to a country where he or she fears 
persecution or torture, an Immigration Judge needs to fully consider 
whether the applicant is eligible to have his or her removal 
withheld from that country under the Act and the Convention Against 
Torture.'').
---------------------------------------------------------------------------

    For a noncitizen subject to expedited removal, the identification 
of the country or countries of removal pursuant to section 241(b) of 
the Act takes place as part of DHS's removal process and occurs before 
any potential referral for a credible fear screening or subsequent EOIR 
credible fear review. See INA 235(b)(1)(A)(i), 8 U.S.C. 
1225(b)(1)(A)(i); 8 CFR 235.3(b)(2)(i) (explaining removability 
determinations made during expedited removal process). And thus, it is 
before DHS--not EOIR--that the country or countries of removal will be 
identified pursuant to section 241(b) of the Act, 8 U.S.C. 1231(b). 
This country designation is not reviewable during a credible fear 
review by the immigration judge, who is

[[Page 105399]]

authorized to review only ``a determination . . . that the [noncitizen] 
does not have a credible fear of persecution'' with respect to 
identified countries of removal. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III). See also Matter of A-S-M-, 28 I&N Dec. 282, 
285 (BIA 2021) (recognizing, in the reasonable fear context, that DHS 
```retains discretion' to determine the proper country of removal under 
section 241(b)(2) of the Act,'' 8 U.S.C. 1231(b)(2), and that 
determination is unreviewable by an immigration judge or the Board of 
Immigration Appeals). Thus, this change makes clear that the 
immigration judge reviews the screening eligibility determinations with 
respect to the country or countries of removal identified pursuant to 
section 241(b) of the Act, 8 U.S.C. 1231(b).

V. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    The Administrative Procedure Act (``APA'') generally requires 
agencies to publish notice of a proposed rulemaking in the Federal 
Register and allow for a period of public comment. 5 U.S.C. 553(b) 
through (c). The APA's notice-and-comment requirements, however, do not 
apply to ``rules of agency organization, procedure, or practice.'' 5 
U.S.C. 553(b)(A). Courts ``have used the term `procedural exception' as 
shorthand for that exemption.'' Am. Fed'n of Lab. & Cong. of Indus. 
Orgs. v. Nat'l Lab. Rels. Bd., 57 F.4th 1023, 1034 (D.C. Cir. 2023) 
(citing Pub. Citizen v. Dep't of State, 276 F.3d 634, 640 (D.C. Cir. 
2002) (quoting JEM Broad. Co., Inc. v. FCC, 22 F.3d 320, 328 (D.C. Cir. 
1994))). ``[T]he critical feature of a rule that satisfies the . . . 
procedural exception is that it covers agency actions that do not 
themselves alter the rights or interests of parties, although it may 
alter the manner in which the parties present themselves or their 
viewpoints to the agency.' '' Id. (citing James V. Hurson Assocs., Inc. 
v. Glickman, 229 F.3d 277, 280 (D.C. Cir. 2000) (internal quotations 
omitted)); cf. Texas v. United States, 809 F.3d 134, 176 (5th Cir. 
2015) (holding that a rule is not procedural when it ``modifies 
substantive rights and interests'' (quoting U.S. Dep't of Lab. v. Kast 
Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984))).
    To determine whether a rule is procedural or substantive, courts 
``must look at [the rule's] effect on those interests ultimately at 
stake in the agency proceeding.'' Neighborhood TV Co., Inc. v. FCC, 742 
F.2d 629, 637 (D.C. Cir. 1984). That said, ``an otherwise-procedural 
rule does not become a substantive one, for notice-and-comment 
purposes, simply because it imposes a burden on regulated parties.'' 
James V. Hurson Assocs., Inc., 229 F.3d at 281. Even ``a rule with a 
`substantial impact' upon the persons subject to it is not necessarily 
a substantive rule under'' the APA. Elec. Priv. Info. Ctr. v. U.S. 
Dep't of Homeland Sec., 653 F.3d 1, 5 (D.C. Cir. 2011) (citing Pub. 
Citizen v. Dep't of State, 276 F.3d at 640-41).
    The Department has determined that this rule regulates agency 
procedure and is therefore exempt from notice-and-comment procedures 
under the APA, 5 U.S.C. 553(b)(A). The amendments adopted through this 
IFR do not alter individuals' rights or interests nor do they alter any 
eligibility requirements for relief or protection from removal. See JEM 
Broad. Co., 22 F.3d at 326. Instead, these amendments clarify that an 
immigration judge's review of the determinations made by an asylum 
officer at the credible fear or reasonable fear screening will include, 
where relevant, review of the asylum officer's application of any bars 
to asylum and withholding of removal under DHS regulations. An 
immigration judge's review of an asylum officer's credible or 
reasonable fear determination will remain, as it has always been, de 
novo, and thus the clarifications made in this rule are merely 
procedural and do not place any new, ``substantive burden[s]'' on 
regulated parties. Elec. Priv. Info. Ctr., 653 F.3d at 6.
    EOIR's current regulations provide immigration judges with the 
broad authority to conduct de novo review of an asylum officer's 
credible or reasonable fear determination, and do not expressly limit 
the ability of immigration judges to consider any relevant bars to 
asylum or withholding of removal, should DHS provide for them by 
regulation. See, e.g., 8 CFR 1003.42(d); 1208.31(g). However, rather 
than risk the potential confusion regarding consideration of the 
applicability of bars at the immigration judge's review stage, this 
rule explicitly states that immigration judges shall, where relevant, 
review the asylum officer's application of such bars. Because this 
modification is a housekeeping measure, including terminology updates 
for internal consistency of usage within EOIR's regulations and 
additions for clarity regarding review of protection claims relating to 
the designated country of removal, the Department believes that this 
IFR is an efficient means of making this procedural clarification. See 
James V. Hurson Assocs., Inc., 229 F.3d at 282 (``We have, therefore, 
consistently recognized that `agency housekeeping rules often embody a 
judgment about what mechanics and processes are most efficient.' This 
does not convert a procedural rule into a substantive one.'') 
(citations omitted).
    As noted, the Department has previously made conforming changes to 
its regulations jointly with DHS when DHS modified its own regulations 
governing whether the asylum officer may consider the mandatory bars to 
asylum and withholding of removal in credible fear determinations. See, 
e.g., 85 FR at 80278 (Global Asylum Rule). However, the Department has 
determined that, in the interest of administrative efficiency, the 
Department will simply codify in the EOIR regulations that the 
immigration judge will review the asylum officer's credible fear or 
reasonable fear determination, including, as directed by DHS 
regulations, the asylum officer's application of any bars to 
eligibility, de novo. This language will ensure that EOIR regulations 
sufficiently cover any scenario where asylum officers may consider the 
bars to asylum and withholding of removal in a screening determination, 
and will not require further EOIR rulemaking action should DHS make 
future regulatory changes to the applicability of any bars to asylum or 
withholding of removal during the credible fear or reasonable fear 
screening processes.
    Although prior notice-and-comment is not required, the Department 
invites public comment on this IFR, and will, before issuing a final 
rule, consider any such comments submitted in accordance with the 
requirements herein.
    Additionally, the Department has also determined that, because this 
is a procedural rule under the APA, the rule is not subject to the 
APA's requirement of a 30-day delay in the effective date. See 5 U.S.C. 
553(d)(3) (providing that ``[t]he required publication or service of a 
substantive rule shall be made not less than 30 days before its 
effective date . . . except as otherwise provided by the agency for 
good cause found and published with the rule'') (emphasis added).

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), as amended by the Small 
Business Regulatory Enforcement and Fairness Act of 1996, generally 
requires an agency to prepare and make available to the public a final 
regulatory flexibility analysis that describes the effect of a rule on 
small entities (i.e., small businesses, small organizations,

[[Page 105400]]

and small governmental jurisdictions) when the agency is required ``to 
publish a general notice of proposed rulemaking'' prior to issuing the 
final rule. See 5 U.S.C. 603(a), 604(a).
    This IFR is not subject to the regulatory flexibility analysis 
requirement because, as explained above, the Department is not required 
to publish a proposed rule before publishing this IFR. Such analysis is 
not required when a rule is exempt from notice-and-comment rulemaking 
under 5 U.S.C. 553(b) or other law. Because this is a rule of agency 
procedure and therefore is exempt from notice-and-comment rulemaking, 
no RFA analysis under 5 U.S.C. 603 or 604 is required. The Department 
nonetheless welcomes comments regarding potential impacts on small 
entities, which the Department may consider as appropriate.

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

    Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 
(Sept. 30, 1993), as amended by Executive Order 14094, Modernizing 
Regulatory Review, 88 FR 21879 (Apr. 6, 2023) and supplemented by 
Executive Order 13563, Improving Regulation and Regulatory Review, 76 
FR 3821 (Jan. 18, 2011), directs agencies to assess the costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health, and safety 
effects, distributive impacts, and equity). Executive Order 13563 
further emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility.
    The Office of Management and Budget, Office of Information and 
Regulatory Affairs (``OIRA'') has designated this IFR a ``significant 
regulatory action'' under Executive Order 12866, as amended. 
Accordingly, OIRA has reviewed this regulation. Further, the Department 
certifies that this IFR has been drafted in accordance with the 
principles of Executive Orders 12866, 13563, and 14094.
    Overall, the Department believes that the changes adopted in this 
IFR will not have a significant impact on adjudicators, the parties, 
and the broader public. This rule is a housekeeping measure that 
clarifies existing credible fear and reasonable fear review processes, 
including the review of the asylum officer's application of the bars to 
asylum and withholding of removal pursuant to 8 CFR 208.30(e)(5).
    In sum, any changes contemplated by the IFR would not impact the 
public in a way that would render the IFR in tension with the 
principles of Executive Orders 12866 or 13563.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (``UMRA'') is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and Tribal governments, or a private sector 
mandate, by requiring the preparation of an UMRA analysis for a rule 
that may directly result in a $100 million or more expenditure 
(adjusted annually for inflation) in any one year.
    This IFR is not subject to the written statement requirement 
because no general notice of proposed rulemaking was published prior to 
issuance of this IFR. 2 U.S.C. 1532(a). In addition, this IFR 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 the voluntary choices of others, and would not 
be a consequence of an enforceable duty imposed by this IFR. Similarly, 
any costs or transfer effects on State and local governments would not 
result from a Federal mandate as that term is defined under UMRA. The 
requirements of title II of UMRA, therefore, do not apply, and the 
Department has not prepared a statement under UMRA.

E. Executive Order 13132 (Federalism)

    This IFR 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, the Department has determined that this IFR does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

    This IFR meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, 61 FR 4729 
(Feb. 5, 1996).

G. Family Assessment

    The Department has reviewed this IFR in line with the requirements 
of section 654 of the Treasury and General Government Appropriations 
Act, 1999, see 5 U.S.C. 601 note, enacted as part of the Omnibus 
Consolidated and Emergency Supplemental Appropriations Act, 1999. 
Public Law 105-277, 112 Stat. 2681 (1998). The Department has 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.
    The Department has determined that the implementation of this IFR 
does not impose a negative impact on family well-being or the autonomy 
or integrity of the family as an institution.

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

    This IFR will not have ``tribal implications'' because it will not 
have substantial direct effects 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. Accordingly, Executive Order 13175 
(Consultation and Coordination with Indian Tribal Governments) requires 
no further agency action or analysis for this rulemaking.

I. National Environmental Policy Act

    The Department and its components analyzed this rulemaking action 
to determine whether the National Environmental Policy Act of 1969, 42 
U.S.C. 4321 et seq. (``NEPA''), applies to these actions and, if so, 
what level of NEPA review is required. 42 U.S.C. 4336.
    Federal agencies may establish categorical exclusions for 
categories of actions they determine normally do not

[[Page 105401]]

significantly affect the quality of the human environment, and, 
therefore, do not require an Environmental Assessment or Environmental 
Impact Statement. 42 U.S.C. 4336(a)(2), 4336e(1); 40 CFR 1501.4, 
1507.3(c)(8). DHS has established its categorical exclusions through 
Appendix A of the DHS's Directive 023-01, Revision 01,\12\ and 
Instruction Manual 023-01-001-01, Revision 01 (``Instruction 
Manual''),\13\ which establishes the procedures that DHS and its 
components use to comply with NEPA and the Council on Environmental 
Quality (CEQ) regulations \14\ for implementing NEPA, 40 CFR parts 1500 
through 1508.
---------------------------------------------------------------------------

    \12\ DHS, Implementation of the National Environmental Policy 
Act, Directive 023-01, Revision 01 (Oct. 31, 2014), https://www.dhs.gov/sites/default/files/publications/DHS_Directive%20023-01%20Rev%2001_508compliantversion.pdf.
    \13\ DHS, Implementation of the National Environmental Policy 
Act (NEPA), Instruction Manual 023-01-001-01, Revision 01 (Nov. 6, 
2014), https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf.
    \14\ The Department is aware of the November 12, 2024 decision 
in Marin Audubon Society v. Federal Aviation Administration, No. 23-
1067 (D.C. Cir. Nov. 12, 2024). To the extent that a court may 
conclude that the CEQ regulations implementing NEPA are not 
judicially enforceable or binding on this agency action, the 
Department has nonetheless elected to follow those regulations at 40 
CFR parts 1500-1508 to meet the agency's obligations under NEPA, 42 
U.S.C. 4321 et seq.
---------------------------------------------------------------------------

    Under DHS's NEPA implementing procedures, for an action to be 
categorically excluded, it must satisfy each of the following three 
conditions: (1) the entire action clearly fits within one or more of 
the Categorical Exclusions; (2) the action is not a piece of a larger 
action; and (3) no extraordinary circumstances exist that create the 
potential for a significant environmental effect. See Instruction 
Manual at V-4 through V-6. The CEQ NEPA regulations allow an agency to 
adopt another agency's determination that a categorical exclusion 
applies to a proposed action if the action covered by the original 
categorical exclusion determination and the adopting agency's proposed 
action are substantially the same. 40 CFR 1506.3(a), (d).
    As discussed in more detail throughout this rule, the Department is 
modifying EOIR regulations applicable to noncitizens who have been 
placed into the credible fear and reasonable fear processes to clarify 
that immigration judges have the authority to review any mandatory bars 
to asylum or withholding of removal applied by asylum officers during 
such processes. This clarification in the EOIR regulations is 
particularly important in light of DHS's December 2024 rule that allows 
asylum officers to consider the potential applicability of certain bars 
to asylum and statutory withholding of removal during credible fear and 
reasonable fear screenings. See DHS Mandatory Bars, 89 FR 103370. DHS 
has determined that promulgation of the DHS rule, which allows asylum 
officers to apply the mandatory bars in the first instance during such 
screenings, qualifies for a categorical exclusion because it fits 
entirely within DHS categorical exclusion A3, is a standalone rule, and 
DHS is not aware of any extraordinary circumstances that would cause a 
significant environmental impact. See DHS Mandatory Bars, 89 FR 103412-
413.
    The Department is adopting DHS's categorical exclusion 
determination. See 42 U.S.C. 4336c; 40 CFR 1506.3(d) (setting forth the 
ability of an agency to adopt another agency's categorical exclusion 
determination). The Department has determined that this IFR fits within 
categorical exclusion A3 for the promulgation of rules that interpret 
or amend an existing regulation without changing its environmental 
effect. See Instruction Manual at A-1 through A-2. This rule does not 
alter any asylum or withholding of removal eligibility criteria. 
Instead, this rule clarifies certain procedures, specifically, to make 
explicit that immigration judges will review de novo any credible or 
reasonable fear determination, including, where relevant, whether a 
mandatory bar to asylum or withholding of removal is implicated.
    Additionally, this IFR is not a piece of a larger action and serves 
to clarify the Department's regulations. The Department is not aware of 
any extraordinary circumstances that would cause an environmental 
impact. Nothing in the IFR, which clarifies EOIR's existing regulations 
and authorities, will have a significant effect on the human 
environment that would necessitate the preparation of an environmental 
assessment or an environmental impact statement. The Department has 
also determined that the DHS action, which allows asylum officers to 
consider certain statutory bars to asylum and statutory withholding of 
removal during the credible fear and reasonable fear process, and the 
action covered by this IFR, which clarifies that immigration judges 
have authority to review asylum officers' application of any such bars 
during the credible fear and reasonable process, are substantially the 
same. Therefore, the Department is adopting DHS's categorical exclusion 
determination. 42 U.S.C. 4336c; 40 CFR 1506.3(d).

J. Paperwork Reduction Act

    This IFR does not propose new or revisions to existing 
``collection[s] of information'' as that term is defined under the 
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, 44 
U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.

K. Congressional Review Act

    The Department has determined that this action is a rule relating 
to agency organization, procedure, or practice that does not 
substantially affect the rights or obligations of non-agency parties 
and, accordingly, is not a ``rule'' as that term is used by the 
Congressional Review Act (5 U.S.C. 801). Therefore, the reporting 
requirement of 5 U.S.C. 801 does not apply.

List of Subjects

8 CFR Part 1003

    Administrative practice and procedure, Noncitizens.

8 CFR Part 1208

    Administrative practice and procedure, Noncitizens, Immigration.

    Accordingly, for the reasons set forth in the preamble, the 
Department amends 8 CFR parts 1003 and 1208 as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

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

0
2. Amend Sec.  1003.42 by:
0
a. As shown in the following table, removing the words in the left 
column and adding in their place the words in the right column wherever 
they appear:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
an alien..................................  a noncitizen.
The alien.................................  The noncitizen.
the alien.................................  the noncitizen.
the alien's...............................  the noncitizen's.
an alien's................................  a noncitizen's.
Aliens....................................  Noncitizens.
same alien................................  same noncitizen.
the Service...............................  DHS.
------------------------------------------------------------------------

0
b. Revising paragraphs (a), (d) and (e); and

[[Page 105402]]

0
c. In paragraph (b), (c), and (f) through (i), removing the words 
``Immigration Court'' and ``Immigration Judge'' and adding in their 
place ``immigration court'' and ``immigration judge'', respectively.
    The revisions read as follows:

Sec.  1003.42  Review of credible fear determinations.

    (a) Referral. Jurisdiction for an immigration judge to review a 
negative credible fear determination by an asylum officer pursuant to 
section 235(b)(1)(B) of the Act shall commence with the filing by DHS 
of Form I-863, Notice of Referral to Immigration Judge, and a complete 
copy of the record of determination as defined in section 
235(b)(1)(B)(iii)(II) of the Act with the immigration court.
* * * * *
    (d) Standard of review. The immigration judge shall make a de novo 
determination as to whether there is a significant possibility, taking 
into account the credibility of the statements made by the noncitizen 
in support of the noncitizen's claim, and such other facts as are known 
to the immigration judge, that the noncitizen could establish 
eligibility for asylum under section 208 of the Act, or could establish 
eligibility for withholding of removal under section 241(b)(3)(B) of 
the Act, or withholding or deferral of removal under the Convention 
Against Torture with respect to the country or countries of removal 
identified pursuant to section 241(b) of the Act. This determination 
shall, where relevant, include review of the asylum officer's 
application of any bars to asylum and withholding of removal pursuant 
to 8 CFR 208.30(e)(5).
    (e) Timing. The immigration judge shall conclude the review to the 
maximum extent practicable within 24 hours, but in no case later than 7 
days after the date the supervisory asylum officer has concurred with 
the asylum officer's negative credible fear determination issued on the 
Form I-869, Record of Negative Credible Fear Finding and Request for 
Review.
* * * * *

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

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

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

Sec.  1208.31  [Amended]

0
4. Amend Sec.  1208.31 by:
0
a. Revising the section heading;
0
b. Removing and reserving paragraphs (b), (c), and (d);
0
c. Revising paragraph (g) introductory text; and
0
d. In the additions to the amendments set forth above, as shown in the 
following table, remove the words in the left column and add in their 
place the words in the right column wherever they appear:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
an alien..................................  a noncitizen.
the alien.................................  the noncitizen.
any alien.................................  any noncitizen.
alien's...................................  noncitizen's.
aliens....................................  noncitizens.
the Service...............................  DHS.
------------------------------------------------------------------------

    The revisions read as follows:

Sec.  1208.31  Reasonable fear of persecution or torture determinations 
involving noncitizens ordered removed under section 238(b) of the Act 
and noncitizens whose removal is reinstated under section 241(a)(5) of 
the Act.

* * * * *
    (g) Review by immigration judge. The asylum officer's negative 
decision regarding reasonable fear shall be subject to de novo review 
by an immigration judge upon the noncitizen's request. The immigration 
judge's review shall, where relevant, include review of the asylum 
officer's application of any bars to withholding of removal pursuant to 
8 CFR 208.31(c). If the noncitizen requests review of the asylum 
officer's negative decision regarding reasonable fear, the asylum 
officer shall serve the noncitizen with a Form I-863, Notice of 
Referral to Immigration Judge. The record of determination, including 
copies of the Form I-863, Notice of Referral to Immigration Judge, the 
asylum officer's notes, the summary of the material facts, and other 
materials upon which the determination was based shall be provided to 
the immigration judge with the negative determination. In the absence 
of exceptional circumstances, such review shall be conducted by the 
immigration judge within 10 days of the filing of the Form I-863, 
Notice of Referral to Immigration Judge, and the complete record of 
determination with the immigration court. Upon review of the asylum 
officer's negative reasonable fear determination:
* * * * *

0
5. Amend Sec.  1208.33 by:
0
a. As shown in the following table, removing the words in the left 
column and adding in their place the words in the right column wherever 
they appear; and

------------------------------------------------------------------------
 
------------------------------------------------------------------------
An alien..................................  A noncitizen.
an alien..................................  a noncitizen.
The alien.................................  The noncitizen.
the alien.................................  the noncitizen.
alien's...................................  noncitizen's.
------------------------------------------------------------------------

0
b. Removing the words ``unaccompanied alien child as defined in 6 
U.S.C. 279(g)(2)'' in paragraph (a)(2)(i) and adding, in their place, 
the words ``unaccompanied child as defined in 8 CFR 1001.1(hh)'';
0
c. Removing the reference to ``8 CFR 214.201(a)'' in paragraph 
(a)(3)(i)(C) and adding in its place ``8 CFR 214.201''; and
0
d. Revising paragraphs (b)(1), (b)(2)(i), and (b)(2)(ii).
    The revisions read as follows:

Sec.  1208.33  Lawful pathways condition on asylum eligibility.

* * * * *
    (b) * * *
    (1) Where an asylum officer has issued a negative credible fear 
determination pursuant to 8 CFR 208.33(b), and the noncitizen has 
requested immigration judge review of that credible fear determination, 
the immigration judge shall evaluate the case de novo, as specified in 
paragraph (b)(2) of this section. In all cases under paragraph (b)(2), 
the immigration judge's review shall, where relevant, include review of 
the asylum officer's application of any bars to withholding of removal 
pursuant to 8 CFR 208.33(b)(2). In doing so, the immigration judge 
shall take 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 immigration judge.
    (2) * * *
    (i) Where the immigration judge determines that the noncitizen is 
not covered by the presumption, or that the presumption has been 
rebutted, the immigration judge shall further determine, consistent 
with Sec.  1208.30, whether the noncitizen has established a 
significant possibility of eligibility for asylum under section 208 of 
the Act, or has established a significant possibility of eligibility 
for withholding of removal under section 241(b)(3) of the Act or 
withholding or deferral of removal under the Convention Against Torture 
with respect to the country or countries of removal identified by DHS 
pursuant to section 241(b) of the Act. Where the immigration judge 
determines that the noncitizen has established a significant 
possibility of eligibility for one of those forms of relief or 
protection, the immigration judge shall issue a positive credible fear 
finding. Where the immigration judge determines that the noncitizen has 
not established a significant possibility of eligibility for

[[Page 105403]]

any of those forms of relief or protection, the immigration judge shall 
issue a negative credible fear finding.
    (ii) Where the immigration judge determines that the noncitizen is 
covered by the presumption and that the presumption has not been 
rebutted, the immigration judge shall further determine whether the 
noncitizen has established a reasonable possibility of persecution 
(meaning a reasonable possibility of being persecuted because of their 
race, religion, nationality, political opinion, or membership in a 
particular social group) or torture with respect to the country or 
countries of removal identified by DHS pursuant to section 241(b) of 
the Act. Where the immigration judge determines that the noncitizen has 
established a reasonable possibility of persecution or torture, the 
immigration judge shall issue a positive credible fear finding. Where 
the immigration judge determines that the noncitizen has not 
established a reasonable possibility of persecution or torture, the 
immigration judge shall issue a negative credible fear finding.
* * * * *

Sec.  1208.35  [Amended]

0
6. Amend Sec.  1208.35 by removing the reference to ``Sec.  214.11 of 
this title'' in paragraph (a)(2)(i)(C) and adding in its place ``Sec.  
214.201 of this title''.

    Dated: December 17, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-30500 Filed 12-26-24; 8:45 am]
BILLING CODE 4410-30-P
```