105392 Federal Register / Vol. 89, No. 248 / Friday, December 27, 2024 / Rules and Regulations 

and comment for this rule is 

unnecessary. 

This rule is further excepted from the 

notice and comment requirement as a 

procedural rule. For the same reasons 

previously stated, the rule has no 

substantive impact or effect on public 

interest. In removing the list of VWP 

participating countries from the CFR, 

while including a reference to another 

location where a list can be found, the 

rule is technical in nature and relates 

only to organization, procedure, and 

practice. This rule only changes 

whether a list of designated countries is 

available in the CFR, making it a 

procedural rule exempt from notice and 

comment. 

For the reasons above, DHS also finds 

that the 30-day delayed effective date 

requirement for substantive rules does 

not apply. See 5 U.S.C. 553(d). Good 

cause exists to make this technical 

amendment effective immediately under 

5 U.S.C. 553(d)(2) and (d)(3). 

Finally, this rule is also excluded 

from the rulemaking provisions of 5 

U.S.C. 553 as a foreign affairs function 

of the United States. Designating VWP 

countries advances the President’s 

foreign policy goals and directly 

involves relationships between the 

United States and its noncitizen visitors. 

Accordingly, DHS is not required to 

provide public notice and an 

opportunity to comment before 

implementing this final rule. 

List of Subjects in 8 CFR Part 217 

Air carriers, aliens, maritime carriers, 

passports, and visas. 

Amendments to the Regulations 

For the reasons set forth in the 

preamble, DHS amends part 217 of title 

8 of the Code of Federal Regulations (8 

CFR part 217) as set forth below. 

PART 217—VISA WAIVER PROGRAM 

■ 1. The authority citation for part 217 

continues to read as follows: 

Authority: 8 U.S.C. 1103, 1187; 8 CFR part 

2. 

■ 2. In § 217.2(a), revise the definition of 

‘‘Designated country’’ to read as follows: 

§ 217.2 Eligibility. 

(a) * * * 

Designated country refers to any 

country currently designated by the 

Secretary for participation in the Visa 

Waiver Program. DHS maintains a list of 

designated countries at https://

www.dhs.gov/visa-waiver-program. 

* * * * * 

Alejandro N. Mayorkas 

Secretary of Homeland Security. 

[FR Doc. 2024–31210 Filed 12–23–24; 8:45 am] 

BILLING CODE 9110–9M–P 

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 


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1For 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). 

2Convention 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. 3Public Law 96–212, 94 Stat. 102 (‘‘Refugee 

Act’’). 

4See 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.’’). 

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

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 nonrefoulement obligations under Article 

33 of the Refugee Convention (via the 

Refugee Protocol) through the statutory 

withholding of removal provision in 

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

1231(b)(3), 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). 

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 


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5Applications 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’’). 

6The 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). 

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). 

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). 

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 


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7Although 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). 

(‘‘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). 

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 


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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 preGlobal 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 


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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. 

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). 

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 nonsubstantive corrections to inadvertent 


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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). 

10See id. 

11See 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 withholdingonly 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.’’). 

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

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’’). 

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 


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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 noticeand-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 otherwiseprocedural rule does not become a 

substantive one, for notice-andcomment 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-andcomment 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, 


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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-andcomment 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 


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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. 

14The 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. 

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. 

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 

■ 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. 

■ 2. Amend § 1003.42 by: 

■ 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. 

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

and 


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■ 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: 

§ 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 

■ 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. 

§ 1208.31 [Amended] 

■ 4. Amend § 1208.31 by: 

■ a. Revising the section heading; 

■ b. Removing and reserving paragraphs 

(b), (c), and (d); 

■ c. Revising paragraph (g) introductory 

text; and 

■ 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: 

§ 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: 

* * * * * 

■ 5. Amend § 1208.33 by: 

■ 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. 

■ 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)’’; 

■ 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 

■ d. Revising paragraphs (b)(1), (b)(2)(i), 

and (b)(2)(ii). 

The revisions read as follows: 

§ 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 § 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 


khammond on DSK9W7S144PROD with RULES
Federal Register / Vol. 89, No. 248 / Friday, December 27, 2024 / Rules and Regulations 105403 

1OMB’s annual guidance memorandum was 

issued on December 17, 2024, providing the 2025 

adjustment multiplier and addressing how to apply 

it. 

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. 

* * * * * 

§ 1208.35 [Amended] 

■ 6. Amend § 1208.35 by removing the 

reference to ‘‘§ 214.11 of this title’’ in 

paragraph (a)(2)(i)(C) and adding in its 

place ‘‘§ 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 

DEPARTMENT OF ENERGY 

10 CFR Parts 207, 218, 429, 431, 490, 

501, 601, 810, 820, 824, 851, 1013, 1017, 

and 1050 

Inflation Adjustment of Civil Monetary 

Penalties 

AGENCY: Office of the General Counsel, 

U.S. Department of Energy. 

ACTION: Final rule. 

SUMMARY: The Department of Energy 

(‘‘DOE’’) publishes this final rule to 

adjust DOE’s civil monetary penalties 

(‘‘CMPs’’) for inflation as mandated by 

the Federal Civil Penalties Inflation 

Adjustment Act of 1990, as further 

amended by the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015 (collectively referred to 

herein as ‘‘the Act’’). This rule adjusts 

CMPs within the jurisdiction of DOE to 

the maximum amount required by the 

Act. 

DATES: This rule is effective on 

December 27, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Preeti Chaudhari, U.S. Department of 

Energy, Office of the General Counsel, 

GC–33, 1000 Independence Avenue SW, 

Washington, DC 20585, (202) 586–0319, 

preeti.chaudhari@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Method of Calculation 

III. Summary of the Final Rule 

IV. Final Rulemaking 

V. Regulatory Review 

I. Background 

In order to improve the effectiveness 

of CMPs and to maintain their deterrent 

effect, the Federal Civil Penalties 

Inflation Adjustment Act of 1990, 28 

U.S.C. 2461 note (‘‘the Inflation 

Adjustment Act’’), as further amended 

by the Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (Pub. L. 114–74) (‘‘the 2015 Act’’), 

requires Federal agencies to adjust each 

CMP provided by law within the 

jurisdiction of the agency. The 2015 Act 

required agencies to adjust the level of 

CMPs with an initial ‘‘catch-up’’ 

adjustment through an interim final 

rulemaking and to make subsequent 

annual adjustments for inflation, 

notwithstanding 5 U.S.C. 553. DOE’s 

initial catch-up adjustment interim final 

rule was published June 28, 2016 (81 FR 

41790), and adopted as final without 

amendment on December 30, 2016 (81 

FR 96349). The 2015 Act also provides 

that any increase in a CMP shall apply 

only to CMPs, including those whose 

associated violation predated such 

increase, which are assessed after the 

date the increase takes effect. 

In accordance with the 2015 Act, the 

Office of Management and Budget 

(OMB) must issue annually guidance on 

adjustments to civil monetary penalties. 

This final rule to adjust civil monetary 

penalties for 2025 is issued in 

accordance with applicable law and 

OMB’s guidance memorandum on 

implementation of the 2025 annual 

adjustment.1

II. Method of Calculation 

The method of calculating CMP 

adjustments applied in this final rule is 

required by the 2015 Act. Under the 

2015 Act, annual inflation adjustments 

subsequent to the initial catch-up 

adjustment are to be based on the 

percent change between the October 

Consumer Price Index for all Urban 

Consumers (CPI–U) preceding the date 

of the adjustment, and the prior year’s 

October CPI–U. Pursuant to the 

aforementioned OMB guidance 

memorandum, the adjustment 

multiplier for 2025 is 1.02598. In order 

to complete the 2025 annual 

adjustment, each CMP is multiplied by 

the 2025 adjustment multiplier. Under 

the 2015 Act, any increase in CMP must 

be rounded to the nearest multiple of 

$1. 

III. Summary of the Final Rule 

The following list summarizes DOE 

authorities containing CMPs, and the 

penalties before and after adjustment. 

DOE authority containing 

civil monetary penalty Before adjustment After adjustment 

10 CFR 207.7 ......................................................................................................................... $12,937 .......................... $13,273. 

10 CFR 218.42 ....................................................................................................................... $28,020 .......................... $28,748. 

10 CFR 429.120 ..................................................................................................................... $560 ............................... $575. 

10 CFR 431.382 ..................................................................................................................... $560 ............................... $575. 

10 CFR 490.604 ..................................................................................................................... $10, 846 ......................... $11,128. 

10 CFR 501.181 ..................................................................................................................... —$114,630 ....................

—$9/mcf .........................

—$45/bbl ........................

—$117,608 

—$9/mcf. 

—$46/bbl. 

10 CFR 601.400 and appendix A ........................................................................................... —minimum $24,496 .......

—maximum $244,958 ....

—minimum $25,132. 

—maximum $251,322. 


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