46906 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 208 and 235 

[CIS No. 2692–21; DHS Docket No. USCIS– 

2021–0012] 

RIN 1615–AC67 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Parts 1003, 1208, and 1235 

[A.G. Order No. 5116–2021] 

RIN 1125–AB20 

Procedures for Credible Fear 

Screening and Consideration of 

Asylum, Withholding of Removal, and 

CAT Protection Claims by Asylum 

Officers 

AGENCY: Executive Office for 

Immigration Review, Department of 

Justice; U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Justice 

(‘‘DOJ’’) and the Department of 

Homeland Security (‘‘DHS’’) 

(collectively, ‘‘the Departments’’) are 

proposing to amend the regulations 

governing the determination of certain 

protection claims raised by individuals 

subject to expedited removal and found 

to have a credible fear of persecution or 

torture. Under the proposed rule, such 

individuals could have their claims for 

asylum, withholding of removal under 

section 241(b)(3) of the Immigration and 

Nationality Act (‘‘INA’’ or ‘‘the Act’’) 

(‘‘statutory withholding of removal’’), or 

protection under the regulations issued 

pursuant to the legislation 

implementing U.S. obligations under 

Article 3 of the Convention Against 

Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment 

(‘‘CAT’’) initially adjudicated by an 

asylum officer within U.S. Citizenship 

and Immigration Services (‘‘USCIS’’). 

Such individuals who are granted relief 

by the asylum officer would be entitled 

to asylum, withholding of removal, or 

protection under CAT, as appropriate. 

Such individuals who are denied 

protection would be able to seek 

prompt, de novo review with an 

immigration judge (‘‘IJ’’) in the DOJ 

Executive Office for Immigration 

Review (‘‘EOIR’’), with appeal available 

to the Board of Immigration Appeals 

(‘‘BIA’’). These changes are intended to 

improve the Departments’ ability to 

consider the asylum claims of 

individuals encountered at or near the 

border more promptly while ensuring 

fundamental fairness. In addition, 

among other changes to the asylum 

process, the Departments are proposing 

to return to the regulatory framework 

governing the credible fear screening 

process in place before various 

regulatory changes made from the end 

of 2018 through the end of 2020, so as 

to apply once more the longstanding 

‘‘significant possibility’’ screening 

standard to all protection claims, but 

not to apply the mandatory bars to 

asylum and withholding of removal 

(with limited exception) at this initial 

screening stage. 

DATES: Submission of public comments: 

Written comments and related material 

must be submitted on or October 19, 

2021. The electronic Federal Docket 

Management System will accept 

comments prior to midnight Eastern 

standard time at the end of that day. 

ADDRESSES: You may submit comments 

on the entirety of this rulemaking 

package, identified by DHS Docket No. 

USCIS–2021–0012, through the Federal 

eRulemaking Portal: https://

www.regulations.gov. Follow the 

website instructions for submitting 

comments. 

Comments submitted in a manner 

other than the one listed above, 

including emails or letters sent to DHS, 

USCIS, DOJ, or EOIR officials, will not 

be considered comments on the 

proposed rule and may not receive a 

response from the Departments. Please 

note that the Departments cannot accept 

any comments that are hand-delivered 

or couriered. In addition, the 

Departments cannot accept comments 

contained on any form of digital media 

storage devices, such as CDs/DVDs and 

USB drives. The Departments also are 

not accepting mailed comments at this 

time. If you cannot submit your 

comment by using https://

www.regulations.gov, please contact 

Samantha Deshommes, Chief, 

Regulatory Coordination Division, 

Office of Policy and Strategy, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, by 

telephone at (240) 721–3000 for 

alternate instructions. 

FOR FURTHER INFORMATION CONTACT: 

For USCIS: Andria Strano, Acting 

Chief, Division of Humanitarian Affairs, 

Office of Policy and Strategy, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 5900 

Capital Gateway Drive, Camp Springs, 

MD 20588–0009; telephone (240) 721– 

3000 (not a toll-free call). 

For EOIR: Lauren Alder Reid, 

Assistant Director, Office of Policy, 

Executive Office for Immigration 

Review, 5107 Leesburg Pike, Falls 

Church, VA 22041; telephone (703) 

305–0289 (not a toll-free call). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Public Participation 

II. Background 

A. Improving the Expedited Removal 

Process 

B. DOJ and DHS Authority To Propose This 

Rule 

C. The Current Asylum and Expedited 

Removal Process 

III. Discussion of the Proposed Rule 

A. Parole—Proposed 8 CFR 235.3(b)(2)(iii) 

and (b)(4)(ii) 

B. Credible Fear Screening Process— 

Proposed 8 CFR 208.30 

C. Applications for Asylum—Proposed 8 

CFR 208.3(a) and 208.9(a) 

D. Proceedings for Further Consideration of 

the Application for Asylum by USCIS 

Asylum Officer in Asylum and 

Withholding Merits Hearing for 

Noncitizens With Credible Fear— 

Proposed 8 CFR 208.2(a) and (c); 

208.9(a), (f), and (g); 208.14(c)(5); 

208.30(e) and (f); 235.6(a)(1); 1003.42; 

and 1208.30(g) 

E. Application Review Proceedings Before 

the IJ—Proposed 8 CFR 1208.2(c), 

1003.48 

F. Severability 

G. Discretion/Phased Implementation 

Statutory and Regulatory Requirements 

H. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

I. Regulatory Flexibility Act 

J. Unfunded Mandates Reform Act of 1995 

K. Congressional Review Act 

L. Executive Order 13132 (Federalism) 

M. Executive Order 12988 (Civil Justice 

Reform) 

N. Family Assessment 

O. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

P. National Environmental Policy Act 

Q. Paperwork Reduction Act 

I. Public Participation 

Interested persons are invited to 

participate in this rulemaking by 

submitting written data, views, 

comments, and arguments on all aspects 

of this rule by the deadline stated above. 

The Departments also invite comments 

that relate to the economic, 

environmental, or federalism effects that 

might result from this rule. All 

comments must be submitted in English 

or accompanied by an English 

translation. Comments that will provide 

the most assistance to the Departments 

in developing these changes will 

reference a specific portion of the rule; 

explain the reason for any 


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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 46907 

1See DHS, Homeland Security Advisory Council, 

Final Emergency Interim Report: CBP Families and 

Children Care Panel, at 1 (Apr. 16, 2019), https:// 

www.dhs.gov/sites/default/files/publications/19_

0416_hsac-emergency-interim-report.pdf; Randy 

Capps et al., From Control to Crisis: Changing 

Trends and Policies Reshaping U.S.-Mexico Border 

Enforcement 7, Migration Policy Institute (MPI) 

(Aug. 2019), https://www.migrationpolicy.org/sites/ 

default/files/publications/BorderSecurityControltoCrisis-Report-Final.pdf (‘‘as arrivals have 

surged to levels unseen in years, border 

enforcement and asylum systems have been 

overwhelmed’’); Lora Ries, Securing the Border and 

Fixing Our Broken Immigration System, Heritage 

Foundation (Sept. 21, 2020), https://

www.heritage.org/immigration/commentary/ 

securing-the-border-and-fixing-our-brokenimmigration-system (‘‘our immigration court system 

is so overwhelmed, [asylum] cases of merit are 

combined with meritless cases, each of which can 

take years to resolve’’); Greg Chen & Peter 

Markowitz, Recommendations for DOJ and EOIR 

Leadership To Systematically Remove Non-Priority 

Cases from the Immigration Court Backlog 1, Am. 

Immigr. Law. Ass’n (Feb. 11, 2021), https://

www.aila.org/infonet/remove-non-priority-cases 

(‘‘The bottleneck for the entire removal system 

caused by the court backlog, if not addressed 

quickly, presents a serious obstacle to the Biden 

administration’s goal of ensuring the fair and 

efficient processing of all removal cases.’’). 

2The generic term ‘‘protection claims’’ is used 

here to refer to all three forms of protection 

addressed in this proposed rule (asylum, statutory 

withholding of removal, and protection from 

removal under the regulations implementing U.S. 

obligations under Article 3 of the CAT). 

3See Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, Public Law 104–208, 

div. C, 110 Stat. 3009, 3009–546 (1996) (‘‘IIRIRA’’). 

4The former Immigration and Naturalization 

Service (‘‘INS’’) initially implemented expedited 

removal only against noncitizens arriving at ports 

of entry. In 2002, DHS expanded the application of 

expedited removal to noncitizens who (1) entered 

the United States by sea, either by boat or other 

means, (2) were not admitted or paroled into the 

United States, and (3) have not been continuously 

present in the United States for at least 2 years. 

Notice Designating Aliens Subject to Expedited 

Removal Under Section 235(b)(1)(A)(iii) of the 

Immigration and Nationality Act, 67 FR 68924 

(Nov. 13, 2002). In 2004, DHS published an 

immediately effective notice in the Federal Register 

to expand the application of expedited removal to 

noncitizens encountered within 100 miles of the 

border and to noncitizens who entered the United 

States without inspection fewer than 14 days before 

they were encountered. Designating Aliens for 

Expedited Removal, 69 FR 48877 (Aug. 11, 2004). 

In 2019, DHS expanded the process to the full 

extent authorized by statute to reach noncitizens 

who entered the country without inspection less 

than 2 years before being apprehended and who 

were encountered anywhere in the United States. 

Designating Aliens for Expedited Removal, 84 FR 

35409 (July 23, 2019). President Biden has directed 

DHS to consider whether to modify, revoke, or 

rescind that 2019 expansion. E.O. 14010, Ensuring 

a Timely and Fair Expedited Removal Process, 86 

FR 8267, 8270–71 (Feb. 2, 2021). 

5See generally 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). 

6See infra note 24. 

recommended change; and include data, 

information, or authority that support 

such recommended change. Comments 

submitted in a manner other than the 

one listed above, including emails or 

letters sent to departmental officials, 

will not be considered comments on the 

proposed rule and may not receive a 

response from the Departments. 

Instructions: If you submit a 

comment, you must include the agency 

name (U.S. Citizenship and Immigration 

Services) and the DHS Docket No. 

USCIS–2021–0012 for this rulemaking. 

All submissions will be posted, without 

change, to the Federal eRulemaking 

Portal at https://www.regulations.gov 

and will include any personal 

information you provide. Therefore, 

submitting this information makes it 

public. You may wish to consider 

limiting the amount of personal 

information that you provide in any 

voluntary public comment submission 

you make to the Departments. The 

Departments may withhold from public 

viewing information provided in 

comments that they determine may 

impact the privacy of an individual or 

is offensive. For additional information, 

please read the Privacy and Security 

Notice available at https://

www.regulations.gov. 

Docket: For access to the docket and 

to read background documents or 

comments received, go to https://

www.regulations.gov, referencing DHS 

Docket No. USCIS–2021–0012. You also 

may sign up for email alerts on the 

online docket to be notified when 

comments are posted or a final rule is 

published. 

II. Background 

There is wide agreement that the 

system for dealing with asylum and 

related protection claims at the 

southwest border has long been 

‘‘overwhelmed’’ and in desperate need 

of repair.1 As the number of such claims 

has skyrocketed over the years, the 

system has proven unable to keep pace, 

resulting in large backlogs and lengthy 

adjudication delays. A system that takes 

years to reach a result is simply not a 

functional one. It delays justice and 

certainty for those who need protection, 

and it encourages abuse by those who 

will not qualify for protection and 

smugglers who exploit the delay for 

profit. The aim of this rule is to begin 

replacing the current system, within the 

confines of the law, with a better and 

more efficient one that will adjudicate 

protection claims fairly and 

expeditiously. The proposed rule would 

accomplish this goal by transferring the 

initial responsibility for adjudicating 

asylum and related protection claims 2

made by noncitizens encountered at or 

near the border from IJs in EOIR to 

asylum officers in USCIS. The proposed 

rule would also provide for the prompt 

filing of asylum applications by such 

individuals, while also providing ample 

procedural safeguards designed to 

ensure due process, respect human 

dignity, and promote equity. 

The current U.S. protection system at 

the border was initially designed in the 

mid-1990s.3 Congress established an 

expedited removal process for 

noncitizens who present themselves at a 

port of entry for inspection or are 

encountered at or near the border and 

who are found to be inadmissible 

because they lack valid entry documents 

or because they sought to enter the 

United States by fraud or 

misrepresentation. INA 235(b)(1)(A)(i), 8 

U.S.C. 1225(b)(1)(A)(i); INA 212(a)(6)(C), 

(7), 8 U.S.C. 1182(a)(6)(C), (7). Congress 

authorized DHS to extend the expedited 

removal process to certain noncitizens 

apprehended shortly after crossing the 

border unlawfully, and DHS has 

exercised that authority. INA 

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

1225(b)(1)(A)(iii).4

A DHS immigration officer who 

encounters a noncitizen subject to 

expedited removal may order the 

noncitizen to be ‘‘removed from the 

United States without further hearing or 

review’’ unless the noncitizen indicates 

either ‘‘an intention to apply for 

asylum’’ or ‘‘a fear of persecution.’’ INA 

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

1225(b)(1)(A)(i). If the noncitizen 

indicates such an intention or fear, the 

immigration officer must refer the 

noncitizen for an interview by an 

asylum officer to determine whether the 

noncitizen has a ‘‘credible fear of 

persecution.’’ INA 235(b)(1)(A)(ii), 

(B)(ii), 8 U.S.C. 1225(b)(1)(A)(ii), (B)(ii). 

A credible fear is defined by statute as 

a ‘‘significant possibility’’ that the 

noncitizen could establish eligibility for 

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

1225(b)(1)(B)(v). Before various 

regulatory changes published between 

2018 and 2020, explained in greater 

detail below, the ‘‘significant 

possibility’’ standard also was applied 

to screening for eligibility for statutory 

withholding of removal and CAT 

protection.5 Because those recent 

regulatory changes have been vacated or 

enjoined, the ‘‘significant possibility’’ 

standard presently applies to all three 

forms of protection claims.6 If the 

asylum officer determines that the 

noncitizen lacks a credible fear, that 

determination is subject to expedited 

review by an IJ, but not by the BIA or 

an Article III court. INA 

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

1225(b)(1)(B)(iii)(III); see INA 


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46908 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 

7See infra note 24 discussing recent regulations 

and their current status. The final rule entitled 

Procedures for Asylum and Withholding of 

Removal; Credible Fear and Reasonable Fear 

Review, 85 FR 80274, 80276 (Dec. 11, 2020) 

(‘‘Global Asylum’’ rule), revised the process used to 

hear the asylum claim, placing noncitizens into 

asylum/withholding-only proceedings instead of 

removal proceedings under section 240 of the INA. 

8For purposes of this discussion, the 

Departments use the term ‘‘noncitizen’’ 

synonymously with the term ‘‘alien’’ in the INA. 

See INA 101(a)(3), 8 U.S.C. 1101(a)(3). 

9Office of Immigration Statistics, Fiscal Year 

2020 Enforcement Lifecycle Report 1, Dep’t of 

Homeland Security (Dec. 2020) (‘‘OIS FY 2020 

Lifecycle Report’’), https://www.dhs.gov/sites/ 

default/files/publications/immigration-statistics/ 

Special_Reports/Enforcement_Lifecycle/2020_

enforcement_lifecycle_report.pdf. 

10 Dep’t of Homeland Security, Fiscal Year 2019 

Border Security Metrics Report 52 (Aug. 5, 2020), 

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

publications/immigration-statistics/BSMR/ndaa_

border_security_metrics_report_fy_2019_0.pdf.pdf. 

11U.S. Customs and Border Protection, Southwest 

Land Border Encounters, https://www.cbp.gov/ 

newsroom/stats/southwest-land-border-encounters 

(last visited Aug. 4, 2021); see also OIS FY 2020 

Lifecycle Report, supra note 9, at 7. Mexico’s share 

of southwest border encounters returned to 65 

percent during the first year of the COVID–19 

pandemic, but preliminary data indicate that 

Mexican nationals accounted for fewer than half of 

southwest border encounters during the first eight 

months of Fiscal Year 2021 and only about onethird of unique individuals when controlling for 

higher than usual repeat encounters due to border 

COVID–19 protocols. 

12 Id. The phenomenon of families being 

encountered at the border was sufficiently rare that 

U.S. Border Patrol only began recording data on 

family unit apprehensions in 2013, and the Office 

of Field Operations did so beginning in 2016. 

13Mike Guo, Immigration Enforcement Actions: 

2019 at 4, Dep’t of Homeland Security (Sept. 2020), 

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

publications/immigration-statistics/yearbook/2019/ 

enforcement_actions_2019.pdf. 

14United States Border Patrol, Southwest Border 

Sectors, Total Illegal Alien Apprehensions by Fiscal 

Year, https://www.cbp.gov/sites/default/files/ 

assets/documents/2020-Jan/ 

U.S.%20Border%20Patrol%20

Fiscal%20Year%20Southwest

%20Border%20Sector%20

Apprehensions%20%28FY%201960%20- 

%20FY%202019%29_0.pdf (last visited Aug. 4, 

2021). 

15Bruno, Andorra, Immigration: U.S. Asylum 

Policy (CRS Report No. R45539), at 37 (Feb. 19, 

2019) (data through 2018), https://

crsreports.congress.gov/product/pdf/R/R45539; see 

also U.S. Citizenship and Immigration Services, 

Credible Fear Workload Report Summary—FY2019 

Total Caseload (2019 data), https://www.uscis.gov/ 

sites/default/files/document/data/Credible_Fear_

Stats_FY19.pdf (last visited Aug. 4, 2021). 

16EOIR, Executive Office for Immigration Review 

Adjudication Statistics: Pending Cases, New Cases, 

and Total Completions (Apr. 19, 2021), https://

www.justice.gov/eoir/page/file/1242166/download. 

17EOIR, Executive Office for Immigration Review 

Adjudication Statistics: Total Asylum Applications 

(Apr. 19, 2021), https://www.justice.gov/eoir/page/ 

file/1106366/download. 

18EOIR, Executive Office for Immigration Review 

Adjudication Statistics: Immigration Judge (IJ) 

Hiring (Apr. 2021), https://www.justice.gov/eoir/ 

page/file/1242156/download. 

19EOIR, Executive Office for Immigration Review 

Adjudication Statistics: Pending Cases, New Cases, 

and Total Completions (Apr. 19, 2021), https://

www.justice.gov/eoir/page/file/1242166/download. 

242(a)(2)(A)(iii), (e)(2), 8 U.S.C. 

1252(a)(2)(A)(iii), (e)(2). 

Noncitizens placed into expedited 

removal and determined to have a 

credible fear of persecution or torture by 

an asylum officer or an IJ must be 

referred for ‘‘further consideration of the 

application for asylum.’’ INA 

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

1225(b)(1)(B)(ii). The INA is silent as to 

the procedures by which this ‘‘further 

consideration’’ should occur. Under 

regulations in place before December 

2020,7 such individuals are currently 

referred to IJs for removal proceedings 

under section 240 of the INA, 8 U.S.C. 

1229a, (‘‘section 240 removal 

proceedings’’) and its implementing 

regulations, 8 CFR 208.30(f), 

235.6(a)(1)(ii)–(iii), 1208.30(g)(2)(iv)(B). 

In those proceedings, IJs conduct 

adversarial hearings to determine 

removability and adjudicate 

applications for asylum, withholding or 

deferral of removal, and any other forms 

of relief or protection. 

The process put into place in 1997, 

under which noncitizens who establish 

credible fear generally must have their 

asylum claims decided through an 

adversarial removal proceeding before 

an IJ, is no longer fit for its intended 

purpose. It does not adequately address 

the need to adjudicate in a timely 

manner the rapidly increasing number 

of asylum claims raised by individuals 

arriving in the United States. 

This system was designed at a time 

when the vast majority of southwest 

border encounters involved single 

adults from Mexico and relatively few 

asylum claims were filed. This system 

has proven unable to manage the 

increasing numbers and changing 

demographics of noncitizens 8 with 

asylum claims arriving in recent years at 

the southwest border. Since the mid2010s, the demographic characteristics 

of noncitizens encountered at the border 

with Mexico have been utterly 

transformed from being dominated by 

Mexican nationals to consisting mainly 

of nationals from the Northern Triangle 

countries of Central America (El 

Salvador, Guatemala, and Honduras) 

along with other Western Hemisphere 

states; from consisting almost entirely of 

adults traveling without children to 

including large numbers of families and 

unaccompanied children; and from 

including very few asylum seekers to 

asylum seekers making up a large share 

of southwest border encounters.9 As a 

result, even as overall encounters at the 

southwest border have been lower in 

recent years than in the 1990s and 

2000s, the demands on the U.S. asylum 

system have increased sharply. 

Recent demographic changes in 

southwest border encounters have been 

dramatic. As recently as 2009, Mexican 

nationals accounted for 92 percent of 

southwest border apprehensions.10

Their share fell below 50 percent for the 

first time ever in 2014, remained below 

50 percent between 2016 and 2019, and 

fell to an all-time low of 20 percent in 

2019, the last full year before the 

COVID–19 pandemic disrupted ongoing 

migration trends.11 Single adults 

accounted for about 89 percent of 

southwest border encounters in 2013— 

a number that was likely near an alltime low at the time—and fell to just 38 

percent in 2019.12 Over much of this 

period, U.S. Border Patrol (‘‘USBP’’) 

agents have apprehended an increasing 

number of families and children from 

Northern Triangle countries. Individuals 

from Northern Triangle countries 

accounted for 71 percent of USBP 

apprehensions in 2019, a record high, 

and families from all countries 

accounted for 56 percent of the total, 

also an all-time high.13

These demographic changes have 

coincided with—and contributed to the 

reversal of—what had been a long-term 

trend in declining border encounters. 

Moreover, as the population of 

individuals encountered at or near the 

southwest border has changed, the 

number of people making fear claims 

after being placed in expedited removal 

has increased sharply. Southwest border 

apprehensions by the U.S. Border Patrol 

fell from over 1.6 million in 2000 to 

under 330,000 in 2011 before rising 

back to over 850,000 in 2019.14 During 

the same period, however, credible fear 

referrals to USCIS initially decreased 

from just over 10,000 in 2000, to just 

under 5000 in 2008, before increasing 

back over 11,000 in 2011, to over 

105,000 in 2019.15 Thus, even as overall 

border encounters fell 48 percent 

between 2000 and 2019, the number of 

individuals making fear claims 

increased over 900 percent. These 

changing demographics have had an 

equally dramatic impact on the 

immigration courts responsible for 

determining removability. EOIR now 

faces a pending caseload of 

approximately 1.3 million cases,16 with 

approximately 610,000 pending asylum 

applications.17 While the corps of IJs 

has more than doubled since 2014, 

going from 249 at the end of FY 2014 

to 539 as of April 2021,18 the number of 

pending cases has more than tripled in 

that same period, growing by nearly 

500,000 cases since the end of Fiscal 

Year (‘‘FY’’) 2018.19 This surge in 


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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 46909 

20According to a review of data collected as part 

of the FY 2020 Lifecycle Report by DHS OIS, 39% 

of cases of noncitizens encountered at the 

southwest border in 2013 through 2019 who made 

fear claims remain in EOIR proceedings as of this 

date. As those cases are eventually completed, the 

median and average completion time for cases 

could be further impacted. 

21See Order Suspending the Right to Introduce 

Certain Persons from Countries Where a 

Quarantinable Communicable Disease Exists, 85 FR 

65806, 65807 (Oct. 16, 2020) (‘‘CDC Order’’ or 

‘‘Title 42 order’’) (extending March 20, 2020 order, 

85 FR 16559). 

22 Id. at 65812. 23 Id. at 65808. 

24On November 9, 2018, the Departments issued 

an interim final rule (‘‘IFR’’) that barred noncitizens 

who entered the United States in contravention of 

a covered Presidential proclamation or order from 

eligibility for asylum, required that they receive a 

negative credible fear finding on their asylum 

claims, and required that their statutory 

withholding and CAT claims be considered under 

the higher reasonable fear screening standard. See 

Aliens Subject to a Bar on Entry Under Certain 

Presidential Proclamations; Procedures for 

Protection Claims, 83 FR 55934, 55939, 55943 (Nov. 

9, 2018). A month later, the U.S. District Court for 

the Northern District of California preliminarily 

enjoined the Departments from implementing the 

rule, E. Bay Sanctuary Covenant v. Trump, 354 F. 

Continued 

pending and new cases, along with the 

temporary, partial closure of the 

immigration courts to in-person 

hearings in 2020 and 2021 because of 

the COVID–19 pandemic, has resulted 

in significantly increased adjudication 

times. While the median completion 

time for cases involving individuals 

who are detained through the 2nd 

quarter of FY 2021 was 43 days, for nondetained individuals in removal 

proceedings, including arriving asylum 

seekers initially screened into expedited 

removal who establish a credible fear of 

persecution, the recent average case 

completion time in immigration court 

has been 3.75 years.20 Most asylum 

seekers arriving at the southwest border 

in recent years must therefore often wait 

several years to have their claims 

adjudicated in removal proceedings 

under section 240 of the Act, 8 U.S.C. 

1229a. Absent changes to the current 

system, the continuing arrival of large 

numbers of noncitizens at the southwest 

border with protection claims is likely 

to lengthen adjudication times further. 

In 2020 and 2021, the situation at the 

southwest border was complicated 

further by the COVID–19 pandemic. 

Pursuant to sections 362 and 365 of the 

Public Health Service Act, Public Law 

78–410, 58 Stat. 682 (1944), 42 U.S.C. 

265 and 268 (‘‘Title 42’’), the Centers for 

Disease Control and Prevention (‘‘CDC’’) 

determined in March 2020 that it was 

necessary to prohibit the introduction of 

certain persons from Mexico and 

Canada to protect the public health by 

preventing the further introduction of 

the virus that causes COVID–19 into the 

United States.21 To mitigate the risks 

presented by COVID–19, the CDC Order 

requires returning all covered 

noncitizens as rapidly as possible—and 

with the least amount of time spent in 

congregate settings as is feasible—to the 

country from which they entered the 

United States, to their country of origin, 

or to another location as practicable and 

appropriate.22 Covered noncitizens are 

those persons traveling from Canada or 

Mexico (regardless of their country of 

origin) who otherwise would be 

introduced into a congregate setting in 

a land (and, as amended, coastal) port 

of entry or USBP station at or near the 

U.S. borders with Canada and Mexico. 

The CDC Order does not apply to, 

among others, U.S. citizens, lawful 

permanent residents, and those who 

arrive at a port of entry with valid travel 

documents.23

Border encounters in FY 2021 remain 

high. To date, the data does suggest that 

single adults make up a greater 

percentage of apprehensions than in FY 

2019 and, controlling for repeat 

encounters, the actual number of unique 

encounters (the number of unique 

individuals encountered irrespective of 

potential repeated attempts to enter) has 

been lower to date in FY 2021 than in 

FY 2019 (given the continuing use of 

Title 42 authority to expel many adults 

and families soon after they are 

apprehended). But total encounters at or 

near the southwest border through April 

for FY 2021 has surpassed the FY 2019 

highs over the same period. The high 

number of southwest border 

apprehensions is presenting serious 

challenges for an already overwhelmed 

U.S. asylum system at the border. 

A. Improving the Expedited Removal 

Process 

The principal purpose of this 

proposed rule is to simultaneously 

increase both the efficiency and the 

procedural fairness of the expedited 

removal process for individuals who 

have been found to have a credible fear 

of persecution or torture. When 

individuals who have been placed into 

the expedited removal process make a 

fear claim, they are referred to a USCIS 

asylum officer, who interviews them to 

determine whether they have a credible 

fear of persecution or torture. See INA 

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

1225(b)(1)(A)(ii). Under current 

procedures, individuals who receive a 

positive credible fear determination are 

referred to an immigration court for 

removal proceedings, in the course of 

which they have the opportunity to 

apply for asylum and other forms of 

relief or protection from removal. See 8 

CFR 208.30(f) (2018) (providing that if a 

noncitizen, other than a stowaway, ‘‘is 

found to have a credible fear of 

persecution or torture, the asylum 

officer will so inform the [noncitizen] 

and issue a Form I–862, Notice to 

Appear, for full consideration of the 

asylum and withholding of removal 

claim in proceedings under section 240 

of the Act’’). As explained above, it may 

take years before the individual’s 

protection claim is first adjudicated by 

an IJ. The ability to stay in the United 

States for years waiting for an initial 

decision may motivate unauthorized 

border crossings by individuals who 

otherwise would not have sought to 

enter the United States and who lack a 

meritorious protection claim. This delay 

creates additional stress for those 

ultimately determined to merit asylum 

and other forms of humanitarian 

protection, as they are left in limbo as 

to whether they might still be removed 

and unable to petition for qualified 

family members, some of whom may 

still be at risk of harm. 

To respond to this problem, this rule 

proposes at 8 CFR 208.2(a)(1)(ii) and 

208.9 to provide USCIS asylum officers 

the authority to adjudicate in the first 

instance the protection claims of 

individuals who receive a positive 

credible fear determination, and that 

they do so in a nonadversarial hearing. 

The rule also proposes at 8 CFR 

208.3(a)(2) that the record of a credible 

fear interview may serve as an asylum 

application for those noncitizens whose 

cases are retained by or referred to 

USCIS for adjudication after a positive 

credible fear determination, thereby 

helping to ensure that asylum seekers 

meet the statutory requirement to apply 

for asylum within one year of arrival. 

These steps are meant to ensure greater 

efficiency in the system, which was 

initially designed for protection claims 

to be the exception, not the rule, among 

those encountered at or near the border. 

The proposed rule will also stem the 

rapid growth of the EOIR caseload, 

described in greater detail above. 

As noted earlier, the current system 

for processing protection claims made 

by individuals encountered at or near 

the border and who establish credible 

fear was originally adopted in 1997. 

Within the last 3 years, however, several 

attempts have been made to issue new 

rules to change the credible fear 

screening process. Many of these 

attempts have been vacated or enjoined, 

and the implementation of others has 

been delayed pending consideration of 

whether they should be revised or 

rescinded.24


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Supp. 3d 1094, 1121 (N.D. Cal. 2018), and the Ninth 

Circuit affirmed, E. Bay Sanctuary Covenant v. 

Biden, 993 F.3d 640, 680 (9th Cir. 2021). 

On July 16, 2019, the Departments published 

another IFR, entitled Asylum Eligibility and 

Procedural Modifications, 84 FR 33829 (July 16, 

2019), which generally barred noncitizens from 

asylum eligibility if they entered or attempted to 

enter the United States across the southwest border 

after failing to apply for protection from persecution 

or torture while in any one of the third countries 

through which they transited, required a negative 

credible fear finding for such noncitizens’ asylum 

claims, and required their withholding and CAT 

claims be considered under the higher reasonable 

fear screening standard. Id. at 33837–38. The U.S. 

District Court for the District of Columbia vacated 

that IFR after concluding that the Departments 

violated the Administrative Procedure Act by 

forgoing notice-and-comment rulemaking. Capital 

Area Immigrants’ Rights Coal. v. Trump, 471 F. 

Supp. 3d 25, 45–57 (D.D.C. 2020). The Departments 

issued a final rule on December 17, 2020, entitled 

Asylum Eligibility and Procedural Modifications, 

85 FR 82260 (Dec. 17, 2020), which again attempted 

to bar from asylum eligibility those noncitizens who 

transited a third country before arriving at the 

border. The U.S. District Court for the Northern 

District of California subsequently issued a 

preliminary injunction against implementation of 

that rule, which remains in place as of this writing. 

E. Bay Sanctuary Covenant v. Barr, No. 19–cv– 

04073–JST, 2021 WL 607869, at *5 (N.D. Cal. Feb. 

16, 2021). 

Around the same time, the Departments also 

issued the final rule entitled Procedures for Asylum 

and Withholding of Removal; Credible Fear and 

Reasonable Fear Review, 85 FR 80274 (Dec. 11, 

2020) (‘‘Global Asylum’’ rule). That rule revised the 

credible fear screening process to require that all 

the mandatory bars to asylum and withholding be 

considered during the credible fear screening 

process and established a new screening standard 

for withholding of removal and CAT protection. On 

January 8, 2021, the U.S. District Court for the 

Northern District of California preliminarily 

enjoined the Departments from implementing the 

rule. Pangea Legal Servs. v. DHS, No. 20–cv–09253 

JD, 2021 WL 75756, at *7 (N.D. Cal. Jan. 8, 

2021). That preliminary injunction remains in 

place. 

Finally, the Departments also published a final 

rule entitled Security Bars and Processing, 85 FR 

84160 (Dec. 23, 2020) (‘‘Security Bars’’ rule), which 

added an additional bar to asylum and withholding 

that would be applied to the credible fear screening 

process. The Departments have delayed the rule’s 

effective date to December 31, 2021, see Security 

Bars and Processing; Delay of Effective Date, 86 FR 

15069 (Mar. 22, 2021), as the Departments consider 

possible action to rescind or revise the rule. 

25Section 4(b)(i) of E.O. 14010 instructed the 

Secretary of Homeland Security to review the 

procedures for individuals placed into expedited 

removal at or near the border and issue a report 

with recommendations ‘‘for creating a more 

efficient and orderly process that facilitates timely 

adjudications [of asylum/protection claims] and 

adherence to standards of fairness and due 

process.’’ 86 FR at 8270. 

26See INA 208(d)(5), 8 U.S.C. 1158(d)(5) 

(specifying that an initial hearing on an asylum 

application should generally occur within 45 days 

after the filing of the application and that an initial 

administrative decision should generally be made 

within 180 days). 

27 In 1985, a class-action suit challenged the 

policies of the former INS relating to the detention, 

processing, and release of alien children; the case 

eventually reached the U.S. Supreme Court. The 

Court upheld the constitutionality of the challenged 

INS regulations on their face and remanded the case 

for further proceedings consistent with its opinion. 

See Reno v. Flores, 507 U.S. 292, 315 (1993). In 

January 1997, the parties reached a comprehensive 

settlement agreement, referred to as the Flores 

Settlement Agreement. See Flores v. Rosen, 984 

F.3d 720, 727 (9th Cir. 2020) (describing litigation 

history). The FSA was to terminate 5 years after the 

date of final court approval; however, the 

termination provisions were modified in 2001, such 

that the FSA does not terminate until 45 days after 

publication of regulations implementing the 

agreement. Id. In August 2019, DHS and HHS 

jointly issued a final rule entitled Apprehension, 

Processing, Care, and Custody of Alien Minors and 

Unaccompanied Alien Children, 84 FR 44392 (Aug. 

23, 2019). In September 2019, about a month before 

the Final Rule was to take effect, a Federal district 

court granted the plaintiff class’s motion to enforce 

the FSA and denied the government’s motion to 

terminate it, because the final rule was inconsistent 

with the FSA and thus did not ‘‘implement[ ]’’ it as 

required by the FSA’s termination provisions. See 

Flores v. Barr, 407 F. Supp. 3d 909, 914 (C.D. Cal. 

2019). The Ninth Circuit affirmed in part, and the 

provisions of the FSA that are relevant here thus 

generally remain in effect. See Flores v. Rosen, 984 

F.3d at 737, 744. Under the requirements of the 

FSA, when DHS apprehends an alien parent or legal 

guardian with their child(ren) either illegally 

entering the United States between the ports of 

entry or found inadmissible at a port of entry, it has, 

following initiation of removal proceedings, three 

primary options for purposes of immigration 

custody: (1) Parole all family members into the 

United States; (2) detain the parent(s) or legal 

guardian(s) and either release the juvenile to 

another parent or legal guardian or transfer them to 

HHS to be treated as an unaccompanied child; or 

(3) detain family members together by placing them 

at an appropriate DHS Family Residential Center 

(‘‘FRC’’) during their immigration proceedings. See, 

e.g., id. at 737–38 (discussing ‘‘transfer of 

unaccompanied minors from DHS to HHS,’’ ‘‘DHS 

custodial care immediately following 

apprehension,’’ and parole). 

28According to EOIR data, as of April 2021, over 

220,000 of EOIR’s pending removal cases originated 

with a credible fear claim. EOIR, Executive Office 

for Immigration Review Adjudication Statistics: 

Pending I–862 Proceedings Originating With a 

Credible Fear Claim and All Pending I–862s (Apr. 

19, 2021), https://www.justice.gov/eoir/page/file/ 

1112996/download. These cases are in various 

stages of the removal process, and hearings may 

have already been scheduled or held. Moving these 

cases to a new process at this stage would risk 

further delaying adjudication of their protection 

claims and create an immediate backlog of tens of 

thousands of cases for USCIS as it prepares to 

implement this proposed process for future border 

arrivals. 

29The statute provides that any unaccompanied 

child whom DHS seeks to remove shall be placed 

in removal proceedings under section 240 of the 

INA. In lieu of being placed in removal 

proceedings, unaccompanied children from 

contiguous countries who meet special criteria may 

be permitted to withdraw their applications for 

This proposed rule offers another 

approach. It would establish a 

streamlined and simplified adjudication 

process for individuals encountered at 

or near the border, placed into 

expedited removal, and determined to 

have a credible fear of persecution or 

torture, with the aim of deciding 

protection claims in a more timely 

fashion while ensuring procedural 

protections against erroneous denials of 

relief.25 The proposed rule would 

authorize USCIS asylum officers to 

adjudicate in the first instance the 

protection claims of individuals who 

receive positive credible fear 

determinations under the expedited 

removal framework in section 235(b)(1) 

of the INA, 8 U.S.C. 1225(b)(1). The 

procedures that USCIS asylum officers 

would use to adjudicate these claims 

would be nonadversarial, and the 

decisions would be made within 

timeframes more in line with those 

established by Congress in section 

208(d)(5) of the INA.26

To ensure effective implementation of 

the expedited removal system, this rule 

also proposes to revise the parole 

considerations prior to a positive 

credible fear determination in 8 CFR 

235.3. The current rule limits parole 

consideration before the credible fear 

determination to situations in which 

parole ‘‘is required to meet a medical 

emergency or is necessary for a 

legitimate law enforcement objective.’’ 8 

CFR 235.3(b)(2)(iii), (b)(4)(ii). Under this 

proposed rule, DHS also would be able 

to consider whether parole is required 

‘‘because detention is unavailable or 

impracticable.’’ The current narrower 

parole standards effectively prevent 

DHS from placing into expedited 

removal many noncitizens who would 

otherwise be eligible for this process, 

especially families, given the 

requirements of the Flores Settlement 

Agreement (‘‘FSA’’).27 These restrictions 

on DHS’s ability to detain families, 

coupled with capacity constraints 

imposed by the COVID–19 pandemic, 

have effectively prevented the 

Government from using the third option 

to detain families subject to expedited 

removal for more than a very limited 

number of families and for more than a 

very limited period of time. This 

proposed rule would, when finalized, 

eliminate that barrier to placing families 

into expedited removal. The proposed 

parole provision would allow more 

noncitizens arriving at the U.S. border 

without proper documents for entry into 

the country to be placed into expedited 

removal and allow for them to have 

their fear claims heard and considered 

outside the detention setting when 

space is unavailable or impracticable to 

use. 

This proposed rule would apply 

prospectively and only to adults and 

families who are placed into expedited 

removal.28 The proposed rule would not 

apply to unaccompanied children, see 6 

U.S.C. 279(g)(2) (defining 

‘‘unaccompanied alien child’’), as they 

are statutorily exempt from expedited 

removal proceedings. 8 U.S.C. 

1232(a)(5)(D)(i) (providing that ‘‘any 

unaccompanied alien child’’ ‘‘shall be— 

(i) placed in removal proceedings under 

section 240’’ of the INA).29 The 


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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 46911 

admission and be voluntarily returned to their 

country of nationality or country of last habitual 

residence. Actual removal proceedings for 

unaccompanied children, whether from contiguous 

countries or not, however, must be under section 

240 of the INA. 

30See supra note 4. 

proposed rule also would not apply to 

individuals already residing in the 

United States who are not designated by 

the Secretary as subject to expedited 

removal.30 Such individuals would 

continue to have their asylum claims 

heard in removal proceedings under 

section 240 of the INA, or through an 

affirmative asylum application under 

section 208 of the INA if they have not 

yet been placed into removal 

proceedings. The proposed rule also 

would not apply to (1) stowaways or (2) 

noncitizens who are present in or 

arriving in the Commonwealth of the 

Northern Mariana Islands who are 

determined to have a credible fear. Such 

individuals would continue to be 

referred to asylum/withholding-only 

proceedings before an IJ under 8 CFR 

208.2(c). 

Finally, the Departments clarify that 

nothing in this proposed rule, if 

finalized, is intended to displace DHS’s 

(and, in particular, USCIS’s) 

prosecutorial discretion to place a 

covered noncitizen in, or to withdraw a 

covered noncitizen from, expedited 

removal proceedings and issue a Notice 

to Appear (‘‘NTA’’) to place the 

noncitizen in section 240 removal 

proceedings at any time after they are 

referred to USCIS for a credible fear 

determination. See Matter of E-R-M- & 

L-R-M-, 25 I&N Dec. 520, 523 (BIA 

2011). 

The credible fear screening 

regulations proposed under this rule 

generally would recodify the current 

screening process, returning the 

regulatory language, in large part, to 

what was in place prior to the various 

regulatory changes made from the end 

of 2018 through the end of 2020. 

Noncitizens encountered at or near the 

border or ports of entry can be placed 

into expedited removal and provided a 

credible fear screening if they indicate 

an intention to apply for asylum, a fear 

of persecution or torture, or a fear of 

return to their home countries. See INA 

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

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

1235.3(b)(4)(i). Individuals claiming a 

fear or an intention to apply for 

protection are referred to USCIS asylum 

officers for an interview and 

consideration of their fear claims under 

the credible fear screening standard, 

which applies to all relevant protection 

claims. If an asylum officer determines 

that an individual does not have a 

credible fear of persecution or torture, 

the individual can request that an IJ 

review the asylum officer’s negative 

credible fear determination. See INA 

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

1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 

1208.30(g). If the IJ concurs with the 

asylum officer’s negative credible fear 

determination, no administrative appeal 

is available, 8 CFR 1208.30(g)(2)(iv)(A), 

and DHS can execute the individual’s 

expedited removal order, promptly 

removing the individual from the 

United States. 

If the noncitizen is found to have a 

credible fear, however, the proposed 

rule would change the procedures in 

place prior to this rulemaking that are 

described above. Under this proposed 

rule, rather than referring the individual 

to an IJ for an adversarial removal 

proceeding under section 240 of the 

INA, or, as provided for in a presentlyenjoined regulation, an asylum/ 

withholding-only hearing, the 

individual’s asylum application instead 

could be retained by USCIS for a 

nonadversarial hearing before an asylum 

officer. See 8 CFR 208.30(f) (proposed). 

Similarly, if, upon review of an asylum 

officer’s negative credible fear 

determination, an IJ finds that an 

individual does have a credible fear of 

persecution or torture, the individual 

also could be referred back to an asylum 

officer for proceedings on the 

individual’s protection claims. Id. 

§§ 1003.42, 1208.30(g). The Departments 

plan to implement these procedures by 

having asylum hearings conducted for 

those individuals who are referred to or 

retained by USCIS after the positive 

credible fear determination would be 

adjudicated in a separate queue, apart 

from adjudications made with respect to 

affirmative asylum applications filed 

directly with USCIS. The individual 

would have the right to representation 

during this proceeding. Id. § 208.9(b). If, 

at the conclusion of an asylum hearing 

described in this proposed rule, the 

asylum officer grants asylum, the 

individual would be allowed to remain 

in the United States indefinitely with 

the status of ‘‘asylee’’ and eventually 

may apply for lawful permanent 

residence. Id.; see also INA 208(c)(1), 

209(b), 8 U.S.C. 1158(c)(1), 1159(b). If 

the asylum officer denies asylum and 

orders the individual removed based on 

the immigration officer’s initial 

inadmissibility determination under 

section 235(b)(1)(A)(i) of the INA, 8 

U.S.C. 1225(b)(1)(A)(i), the asylum 

officer will also issue a decision 

regarding withholding or deferral of 

removal. 8 CFR 208.14(c)(5) (proposed). 

An individual who is denied asylum 

may request review by an IJ of the 

asylum decision, as well as any denial 

of withholding or deferral of removal. 

Id. §§ 208.14(c)(5)(i), 1003.48(a). 

In cases in which a noncitizen seeks 

review of an asylum officer’s adverse 

decision, the Departments propose that 

the IJ would make an independent de 

novo determination based on the record 

of the hearing before the Asylum Office 

plus any additional, non-duplicative 

evidence presented to the court that is 

necessary to reach a reasoned decision. 

Id. § 1003.48(e) (proposed). The 

individual would also have the right, 

consistent with the INA, to 

representation during this review. See 8 

CFR 1003.12 (proposed) (providing that 

the rules in this subpart apply to the 

proposed proceedings under 8 CFR 

1003.48); 8 CFR 1003.16(b) (providing 

that a noncitizen ‘‘may be represented 

in proceedings before an Immigration 

Judge by an attorney or other 

representative’’). The IJ also would be 

authorized to vacate proceedings when 

the judge finds the individual is prima 

facie eligible for other forms of relief 

from removal, so that DHS, in the 

exercise of DHS’s discretion, could 

place the noncitizen into removal 

proceedings under section 240 of the 

INA, 8 U.S.C. 1229a. See 8 CFR 

1003.48(d) (proposed). 

Finally, the rule proposes that both 

parties would be able to appeal the IJ’s 

decision to the BIA under procedures 

similar to those used in section 240 

removal proceedings and asylum/ 

withholding-only proceedings under 8 

CFR 208.2(c), 1208.2(c). See 8 CFR 

1003.1(b)(15) (proposed). In addition, 

the individual would be able to petition 

for review of the BIA decision with the 

Federal courts. See infra note 59. 

B. DOJ and DHS Authority To Propose 

This Rule 

The Attorney General and the 

Secretary jointly propose this rule 

pursuant to their respective authorities 

concerning asylum determinations. The 

Homeland Security Act of 2002 

(‘‘HSA’’), Public Law 107–296, 116 Stat. 

2135, as amended, created DHS and 

transferred to it many functions related 

to the execution of Federal immigration 

law. The HSA charged the Secretary 

‘‘with the administration and 

enforcement of this chapter and all 

other laws relating to the immigration 

and naturalization of aliens,’’ INA 

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

granted the power to take all actions 

‘‘necessary for carrying out’’ the 

Secretary’s authority under the 

immigration laws, INA 103(a)(3), 8 

U.S.C. 1103(a)(3). The Secretary’s 

authority also includes the authority to 


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46912 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 

publish regulatory amendments 

governing the apprehension, inspection 

and admission, detention and removal, 

withholding of removal, and release of 

noncitizens encountered in the interior 

of the United States or at or between the 

U.S. ports of entry. INA 235, 236, 241, 

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

The HSA thus transferred to DHS 

authority to adjudicate asylum 

applications, as well as the authority to 

conduct credible fear interviews and 

make credible fear determinations in the 

context of expedited removal. INA 

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

also HSA 451(b), 6 U.S.C. 271(b) 

(providing for the transfer of 

adjudication of asylum and refugee 

applications from the Commissioner of 

Immigration and Naturalization to the 

Director of the Bureau of Citizenship 

and Immigration Services, now USCIS). 

By operation of the HSA, the reference 

to ‘‘Attorney General’’ in the INA is 

understood also to encompass the 

Secretary in matters with respect to 

immigration proceedings before DHS. 

That authority has been delegated 

within DHS to the Director of USCIS. 

See 8 CFR 208.2(a), 208.30. 

In addition, under the HSA, the 

Attorney General retained authority 

over individual immigration 

adjudications (including section 240 

removal proceedings and certain 

adjudications related to asylum 

applications) conducted within EOIR. 

See HSA 1101(a), 6 U.S.C. 521(a); INA 

103(g), 8 U.S.C. 1103(g). IJs within DOJ 

continue to adjudicate all asylum 

applications filed by noncitizens during 

the pendency of removal proceedings, 

and they also review asylum 

applications referred by USCIS to the 

immigration court. See INA 101(b)(4), 

240(a)(1), 8 U.S.C. 1101(b)(4), 

1229a(a)(1); 8 CFR 1208.2(b), 1240.1(a). 

Section 235(b)(1)(B)(ii) of the INA, 8 

U.S.C. 1225(b)(1)(B)(ii), provides that if 

a noncitizen in expedited removal 

proceedings is determined to have a 

credible fear of persecution by an 

asylum officer, the noncitizen is entitled 

to ‘‘further consideration of the 

application for asylum.’’ This proposed 

rule addresses how that further 

consideration will occur. Section 

208(d)(1) of the INA, 8 U.S.C. 

1158(d)(1), provides the Attorney 

General with the authority to establish 

procedures for the consideration of 

asylum applications, including those 

filed in accordance with section 235(b) 

of the INA, 8 U.S.C. 1225(b). See INA 

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

Section 103(a)(1) and (3) of the INA, 

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

Secretary to establish rules and 

regulations governing parole. Section 

212(d)(5) of the INA, 8 U.S.C. 

1182(d)(5), vests in the Secretary the 

discretionary authority to grant parole to 

applicants for admission on a case-bycase basis. 

C. The Current Asylum and Expedited 

Removal Process 

1. Asylum 

The Refugee Act of 1980, Public Law 

96–212, 94 Stat. 102, was the first 

comprehensive legislation to establish 

the modern refugee and asylum system 

in the United States. Asylum is a 

discretionary benefit that can be granted 

by the Attorney General or the Secretary 

if a noncitizen establishes, 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 

refugees); INA 101(a)(42)(A), 8 U.S.C. 

1101(a)(42)(A) (defining ‘‘refugee’’). As 

long as they retain their asylee status, 

noncitizens who are granted asylum (1) 

cannot be removed or returned to their 

country of nationality or last habitual 

residence, (2) receive employment 

authorization incident to their status, 

and (3) may be permitted to apply for 

readmission after travel outside of the 

United States with prior consent from 

the Secretary. INA 208(c)(1), 8 U.S.C. 

1158(c)(1); see Johnson v. Guzman 

Chavez, 141 S. Ct. 2271, 2286 (2021) 

(‘‘[A] grant of asylum permits an alien 

to remain in the United States and to 

apply for permanent residency after one 

year[.]’’ (internal quotation marks and 

citation omitted) (emphases omitted)); 8 

CFR 274a.12(a)(5) (employment 

authorization incident to asylum status); 

id. § 223.1(b) (readmission after travel 

for a ‘‘person who holds . . . asylum 

status pursuant to section 208 of the 

Act’’). 

Asylum applications are presently 

classified based on the agency with 

jurisdiction over the noncitizen’s case. If 

a noncitizen is physically present in the 

United States, not detained, and not in 

removal proceedings, the noncitizen 

may file an asylum application with 

USCIS. These applications are known as 

‘‘affirmative’’ filings. If the noncitizen is 

in removal proceedings before an IJ, the 

noncitizen instead may file an 

application for asylum with the IJ as a 

defense to removal. Such ‘‘defensive’’ 

filings are currently the only route by 

which noncitizens referred to an IJ by a 

USCIS asylum officer after receiving a 

positive credible fear determination can 

obtain an adjudication of the merits of 

their asylum claims. 

Noncitizens who are ineligible for a 

grant of asylum, or who are denied 

asylum based on the Attorney General’s 

or the Secretary’s discretion, 

nonetheless may qualify for other forms 

of protection. An application for asylum 

submitted by a noncitizen in removal 

proceedings is also considered an 

application for statutory withholding of 

removal under section 241(b)(3) of the 

INA, 8 U.S.C. 1231(b)(3). See 8 CFR 

1208.3(b), 1208.13(c)(1). An IJ also may 

consider a noncitizen’s eligibility for 

withholding and deferral of removal 

under regulations issued pursuant to the 

implementing legislation regarding U.S. 

obligations under Article 3 of the CAT. 

Foreign Affairs Reform and 

Restructuring Act of 1998, Public Law 

105–277, div. G, sec. 2242(b), 112 Stat. 

2681–761, 2681–822 (codified at 8 

U.S.C. 1231 note (1999)); 8 CFR 

1208.3(b), 1208.13(c)(1); see also id. 

§§ 1208.16(c), 1208.17. 

Withholding and deferral of removal 

bar a noncitizen’s removal to any 

country where the noncitizen would 

‘‘more likely than not’’ face persecution 

or torture, meaning that the noncitizen 

would face a clear probability that their 

life or freedom would be threatened 

because of a protected ground or a clear 

probability of torture. 8 CFR 

1208.16(b)(2), (c)(2). Thus, if a 

noncitizen proves that it is more likely 

than not that the noncitizen’s life or 

freedom would be threatened on 

account of a protected ground, but is 

denied asylum for some other reason— 

for instance, because of a statutory 

exception, an eligibility bar adopted by 

regulation, or a discretionary denial of 

asylum—the noncitizen nonetheless 

may be entitled to statutory withholding 

of removal if not otherwise barred from 

that form of protection. INA 

241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 8 

CFR 208.16, 1208.16. Likewise, a 

noncitizen who establishes that he or 

she more likely than not will face 

torture in the country of removal will 

qualify for CAT protection. See 8 CFR 

208.16(c), 208.17(a), 1208.16(c), 

1208.17(a). In contrast to the more 

generous benefits available through 

asylum, statutory withholding and CAT 

protection do not: (1) Prohibit the 

Government from removing the 

noncitizen to a third country where the 

noncitizen would not face the requisite 

likelihood of persecution or torture 

(even in the absence of an agreement 

with that third country); (2) create a 

path to lawful permanent resident 

status; or (3) afford the same ancillary 

benefits, such as derivative protection 

for family members. See, e.g., Guzman 


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31See supra note 24 (discussing the status of 

more recent regulatory changes). 

Chavez, 141 S. Ct. at 2286 

(‘‘distinguish[ing] withholding-only 

relief from asylum’’ on the ground that 

withholding does not preclude the 

Government from removing the 

noncitizen to a third country and does 

not provide the noncitizen any 

permanent right to remain in the United 

States); Matter of A–K–, 24 I&N Dec. 

275, 279 (BIA 2007) (stating that ‘‘the 

Act does not permit derivative 

withholding of removal under any 

circumstances’’); INA 208(b)(3)(A), 8 

U.S.C. 1158(b)(3)(A) (statutory provision 

allowing asylum status to be granted to 

accompanying or following-to-join 

spouse or children of a noncitizen 

granted asylum; no equivalent statutory 

or regulatory provision for individuals 

granted withholding or deferral of 

removal). 

2. Expedited Removal and Screenings in 

the Credible Fear Process 

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. The process is applicable to 

noncitizens arriving in the United States 

(and, in the discretion of the Secretary, 

certain other designated classes of 

noncitizens) who are found to be 

inadmissible under either section 

212(a)(6)(C) of the INA, 8 U.S.C. 

1182(a)(6)(C), regarding material 

misrepresentations, or section 212(a)(7) 

of the INA, 8 U.S.C. 1182(a)(7), 

regarding documentation requirements 

for admission. Under expedited 

removal, 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). 

The former INS and, later, DHS 

implemented a screening process, 

known as the ‘‘credible fear’’ screening, 

to identify potentially valid claims for 

asylum, statutory withholding of 

removal, and CAT protection, or, more 

specifically, to prevent noncitizens 

placed in expedited removal from being 

removed to a country in which they 

would face persecution or torture. 

Currently, with regulatory changes 

made from 2018 through 2020 either 

vacated, enjoined, or delayed, any 

noncitizen who expresses a fear of 

persecution or torture, a fear of return, 

or an intention to apply for asylum 

during the course of the expedited 

removal process is referred to a USCIS 

asylum officer for an interview to 

determine whether the noncitizen has a 

credible fear of persecution or torture in 

the country of return. 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), 1235.3(b)(4)(i). If the asylum 

officer determines that the noncitizen 

does not have a credible fear of 

persecution or torture, the noncitizen 

may request that an IJ review that 

determination. See INA 

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

1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 

1208.30(g). 

Under the regulatory framework prior 

to November 2018 and currently in 

effect,31 if the asylum officer determines 

that a noncitizen subject to expedited 

removal has a credible fear of 

persecution or torture, DHS refers the 

noncitizen to an immigration court for 

adjudication of the noncitizen’s claims 

by initiating section 240 removal 

proceedings through service of an NTA 

on the noncitizen and with the court. 

See 8 CFR 208.30(f), 235.6(a)(1)(ii), 

1235.6(a)(1)(ii) (2018). Similarly, if an IJ, 

upon review of the asylum officer’s 

negative credible fear determination, 

finds that the noncitizen possesses a 

credible fear of persecution or torture, 

the IJ vacates the expedited removal 

order and DHS initiates section 240 

removal proceedings. See id. 

1208.30(g)(2)(iv)(B). If the noncitizen 

subsequently decides to file for asylum, 

the asylum application is filed with the 

court during the section 240 removal 

proceedings, is considered a 

‘‘defensively filed’’ application, and is 

subject to the one-year filing deadline. 

See INA 208(a)(2)(B), 8 U.S.C. 

1158(a)(2)(B). There is no requirement 

that the noncitizen file an asylum 

application, however, once placed into 

section 240 removal proceedings. 

III. Discussion of the Proposed Rule 

As noted in the summary above, this 

proposed rule would make several 

changes to the adjudication process of 

protection claims presented by 

noncitizens in expedited removal who 

both make fear claims and are 

determined to have a credible fear of 

persecution or torture. A more detailed 

explanation of the proposed changes, 

the reasons for these changes, and their 

alignment with the relevant statutes, as 

well as a brief outline of certain other 

changes proposed by this rule, follows. 

A. Parole—Proposed 8 CFR 

235.3(b)(2)(iii) and (b)(4)(ii) 

The expedited removal statute 

provides for detention throughout the 

expedited removal process, including 

during the credible fear screening 

process and during the process for 

further consideration of the protection 

claims on their merits. The statute does 

not, however, limit DHS’s general parole 

authority under section 212(d)(5) of the 

INA, 8 U.S.C. 1182(d)(5), and 8 CFR 

212.5(b), and the Departments have not 

understood the language providing for 

detention in expedited removal to limit 

this parole authority. Instead, parole 

authority in the context of expedited 

removal has been specifically provided 

for in the relevant regulations covering 

expedited removal and the credible fear 

screening process since they were first 

implemented in 1997. See Inspection 

and Expedited Removal of Aliens; 

Detention and Removal of Aliens; 

Conduct of Removal Proceedings; 

Asylum Procedures, 62 FR 10312, 10356 

(Mar. 6, 1997) (interim final rule). And 

the U.S. Supreme Court recently 

acknowledged in Jennings v. Rodriguez, 

138 S. Ct. 830, 837 (2018), that DHS may 

exercise its authority to temporarily 

parole persons subject to expedited 

removal, while also acknowledging that 

the relevant statutory language in 

section 235(b)(1) and (b)(2) of the INA, 

8 U.S.C. 1225(b)(1), (b)(2), 

‘‘unequivocally mandate that aliens 

falling within their scope ‘shall’ be 

detained,’’ id. at 844. 

Since expedited removal’s 

implementation regulations were first 

promulgated, parole consideration has 

been limited to a narrow category of 

circumstances for individuals awaiting a 

credible fear determination—when 

necessary ‘‘to meet a medical emergency 

or . . . for a legitimate law enforcement 

objective.’’ See 8 CFR 235.3(b)(2)(iii), 

(b)(4)(ii) (current). This proposed rule 

change would add to those grounds, 

allowing parole when ‘‘detention is 

unavailable or impracticable (including 

situations in which continued detention 

would unduly impact the health or 

safety of individuals with special 

vulnerabilities).’’ 8 CFR 235.3(b)(2)(iii), 

(b)(4)(ii) (proposed). This change would 

allow DHS to prioritize use of its limited 

detention bed space to detain those 

noncitizens who pose the greatest 

threats to national security and public 

safety, while avoiding unnecessary 

operational limitations on DHS’s 

authority to place noncitizens into 

expedited removal. Under the proposed 

rule, when detention space is 

unavailable or its use is otherwise 

impracticable, DHS would have the 

option of using parole rather than 

placing nearly all families arriving at the 

border directly into section 240 removal 

proceedings. The proposed rule also 

makes clear that a grant of parole only 


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32As noted elsewhere in this preamble, this 

proposed rule is not intended to rescind previously 

enjoined or vacated rules. Accordingly, the 

Departments are proposing that those in the 

credible fear process who have been paroled from 

custody would be ineligible for a (c)(11) 

employment authorization document (‘‘EAD’’), 

similar to what was implemented with the final rule 

entitled Asylum Application, Interview, and 

Employment Authorization for Applicants, 85 FR 

38532, 38582 (June 26, 2020). A Federal district 

court preliminarily enjoined certain provisions of 

the rule but only as applied to the plaintiffs in that 

case, and the EAD-parole provision similar to the 

one proposed here was not challenged in that 

litigation. See Casa de Maryland, Inc. v. Wolf, 486 

F. Supp. 3d 928, 935 (D. Md. 2020) (‘‘preliminarily 

enjoin[ing] Defendants from enforcing a subset of 

the rule changes as applied to the individual 

members of Plaintiffs Casa de Maryland, Inc. 

(‘CASA’) and Asylum Seeker Advocacy Project 

(‘ASAP’)’’). The Departments are seeking public 

comment on the use of (c)(11) EADs for those in 

expedited removal who have been paroled from 

custody. 

33See supra note 24. 

34 142 Cong. Rec. S11491 (daily ed. Sept. 27, 

1996) (statement of Senate Judiciary Committee 

Chairman Orrin Hatch). 

35 Id. The chairman of the conference committee 

assigned to reconcile the two bills, Rep. Henry 

Hyde, stated that ‘‘[t]he credible fear standard is 

redrafted in the conference document to address 

fully concerns that the ‘more probable than not’ 

language in the original House version was too 

restrictive.’’ 142 Cong. Rec. H11081 (daily ed. Sept. 

25, 1996) (statement of House Judiciary Committee 

Chairman Henry Hyde). The exact language in 

section 302 of the House bill, H.R. 2202, 104th 

Cong. (1995), was as follows: ‘‘the term ‘credible 

fear of persecution’ means (I) that it is more 

probable than not that the statements made by the 

alien in support of the alien’s claim are true, and 

(II) that there is a significant possibility, in light of 

such statements and of such other facts as are 

known to the officer, that the alien could establish 

eligibility for asylum under section 208.’’ The 

conference committee compromise stuck subsection 

(I) from the definition of credible fear. 

36 142 Cong. Rec. S11491 (statement of Sen. 

Hatch). 

37These proposed changes would not alter 

reasonable fear of persecution or torture 

determinations involving noncitizens ordered 

removed under section 238(b) of the INA, 8 U.S.C. 

1228(b), and noncitizens whose removal is 

reinstated under section 241(a)(5) of the INA, 8 

U.S.C. 1251(a)(5), pursuant to 8 CFR 208.31. 

38This proposed rule does not, and is not 

intended to, rescind prior rulemakings, including 

Implementing Bilateral and Multilateral Asylum 

Cooperative Agreements Under the Immigration 

and Nationality Act, 84 FR 63994 (Nov. 19, 2019); 

Aliens Subject to a Bar on Entry Under Certain 

Presidential Proclamations; Procedures for 

Protection Claims, 83 FR 55934 (Nov. 9, 2018); and 

Asylum Eligibility and Procedural Modifications, 

85 FR 82260 (Dec. 17, 2020). To that end, the 

Departments have proposed to change 8 CFR 208.30 

only to the extent necessary to implement the 

changes proposed in this rule and left the remaining 

provisions of the aforementioned rules to be 

authorizes release from custody and 

cannot serve as an independent basis for 

employment authorization under 8 CFR 

274a.12(c)(11).32 See 8 CFR 

235.3(b)(4)(ii) (proposed). The 

Departments are seeking public 

comment on this change in the 

circumstances under which parole may 

be considered in the expedited removal 

context, as well as the use of (c)(11) 

employment authorization documents 

(‘‘EADs’’) for those in expedited removal 

who have been paroled from custody. 

B. Credible Fear Screening Process— 

Proposed 8 CFR 208.30 

As noted earlier, there were several 

rules published by the Departments 

from the end of 2018 through the end of 

2020 that attempted to change the 

credible fear screening process that had 

been in place for approximately 20 

years, but these rules are not in effect.33

The Global Asylum rule, which, as 

explained above, has been enjoined, 

attempted to change the pre-2018 

practice of not applying the mandatory 

bars to asylum and statutory 

withholding in the credible fear 

screening process, instead requiring a 

final determination on the applicability 

of a significantly expanded list of 

mandatory bars during credible fear 

screenings and mandating a negative 

credible fear finding should any of the 

bars be determined to apply to the 

noncitizen at that initial stage. 85 FR at 

80278. In addition, the Global Asylum 

rule attempted to alter the longstanding 

practice for screening claims for 

statutory withholding of removal and 

CAT protection. Prior to the rule, the 

statutory standard for screening asylum 

claims (i.e., a ‘‘significant possibility’’ of 

establishing eligibility for asylum) was 

also used to screen withholding of 

removal and CAT claims. The Global 

Asylum rule attempted to create a more 

complicated two-step, two-standard 

screening by requiring a higher 

screening standard for such claims (i.e., 

a ‘‘reasonable possibility’’ of 

persecution or torture). Id. The Security 

Bars rule, issued less than 2 weeks after 

the Global Asylum rule, further 

expanded the list of mandatory bars to 

asylum that would apply in the credible 

fear screening process, 85 FR at 84160, 

but its implementation has been delayed 

until the end of 2021, 86 FR at 15069. 

With this proposed rule, the 

Departments generally seek to return the 

credible fear screening process 

regulations to the simpler screening 

process that was in place for expedited 

removal’s first two decades of 

implementation. Given the injunctions, 

delays, and vacaturs referenced above, 

this rule proposes to recodify in the 

Code of Federal Regulations the 

standard of ‘‘significant possibility’’ that 

has remained in effect since the rule 

changing that standard has been 

enjoined. Pangea Legal Servs. v. DHS, 

No. 20–cv–09253, 2021 WL 75756, at *7 

(N.D. Cal. Jan. 8, 2021) (preliminarily 

enjoining the Global Asylum rule). The 

Departments believe that this change 

will make for a more efficient and 

effective credible fear screening process 

and is also necessary to make that 

screening process consistent with 

congressional intent. 

The 104th Congress chose a screening 

standard ‘‘intended to be a low 

screening standard for admission into 

the usual full asylum process.’’ 34

Originally, the Senate bill had proposed 

a ‘‘determination of whether the asylum 

claim was ‘manifestly unfounded,’ 

while the House bill applied a 

‘significant possibility’ standard 

coupled with an inquiry into whether 

there was a substantial likelihood that 

the alien’s statements were true.’’ 35 In 

IIRIRA, Congress then ‘‘struck a 

compromise by rejecting the higher 

standard of credibility included in the 

House bill.’’ 36 This proposed regulation 

would now return the screening 

standard to the ‘‘low screening 

standard’’ intended by the compromise 

reflected in the text that Congress 

ultimately passed. Rather than creating 

a complicated screening process that 

requires full evidence gathering and 

determinations to be made on possible 

bars to eligibility, this proposed rule 

aims to return to allowing protection 

claims with a ‘‘significant possibility’’ of 

success to be fully heard and 

adjudicated, but in a process that more 

quickly reaches a final decision on the 

merits than the current process. 

To accomplish this, the proposed rule 

would replace all the references 

throughout 8 CFR 208.30 to a ‘‘credible 

fear of persecution, reasonable 

possibility of persecution, or a 

reasonable possibility of torture’’ with 

‘‘credible fear,’’ acknowledging that the 

statutory ‘‘significant possibility’’ 

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

1225(b)(1)(B)(v), would be applied in 

considering all three types of protection 

claims—asylum, statutory withholding, 

and protection under the CAT.37

Consistent with that change, the 

proposed rule would revise 8 CFR 

208.30 to return the definition of the 

‘‘credible fear’’ standard to the 

‘‘significant possibility’’ definition 

provided in the statute (paragraph 

(e)(2)), replace the ‘‘reasonable 

possibility’’ standard with the same 

‘‘significant possibility’’ screening 

standard for statutory withholding of 

removal and CAT withholding or 

deferral of removal (paragraphs (e)(2) 

and (3)), return the language in the 

regulation to reflect the existing and 

two-decade long practice of not 

applying the mandatory bars to the 

credible fear screening determination 

(paragraph (e)(5)),38 maintain the 


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modified or rescinded by the Departments at a later 

date. See, e.g., OMB, Agenda Rule List—Spring 

2021: Department of Homeland Security, https://

www.reginfo.gov/public/do/ 

eAgendaMain?operation=OPERATION_GET_

AGENCY_RULE_LIST¤tPub=true&agency

Code=&showStage=active&agencyCd=1600. The 

Departments, however, do seek comment on 

whether the changes proposed in this rule would 

require any other rescissions or modifications of the 

provisions adopted in recent prior rulemakings. 

39The proposed versions of the Global Asylum 

rule and the Security Bars rule both dropped the 

regulatory provision previously in 8 CFR 

1208.30(g)(2) that acknowledged USCIS’s ability to 

reconsider a negative credible fear finding that had 

already received IJ concurrence, but the 

Departments responded to comments received 

about this change by reinserting the provision into 

8 CFR 208.30(g) in the final rules, stating that the 

provision had been omitted from the proposed rule 

inadvertently. 85 FR at 80275, 84181. This 

proposed rule again proposes this change but does 

so for the reasons provided herein. 

threshold screening under the safe third 

country agreement with Canada 

(paragraph (e)(6)), and continue to 

require supervisory review of all 

credible fear determinations before they 

can become final (paragraph (e)(8)). The 

Departments seek comment on these 

changes and also request comment on 

whether any additional changes to the 

provisions of the Global Asylum and 

Security Bar rules are necessary or 

appropriate to accomplish the objectives 

outlined in this section. 

As part of the proposed restructuring 

of the credible fear determination 

framework, the proposed rule would 

also remove the current language at 8 

CFR 208.30(g)(2)(i) providing that DHS 

may reconsider a negative credible fear 

finding that has been reviewed and 

upheld by an IJ.39 Section 208.30(g)(1)(i) 

would be revised to provide that once 

the asylum officer has made a negative 

credible fear determination, the 

individual either requests IJ review or 

declines to request review and that 

declination is treated as a request for 

review and the individual is served with 

a Form I–863. At that point, under the 

proposed rule, the IJ has sole 

jurisdiction to review whether the 

individual has established a credible 

fear of persecution or torture, and an 

asylum officer may not reconsider or 

reopen the determination. 

These proposed changes reflect an 

intention to return to the statutory 

scheme of INA 235(b)(1)(B), 8 U.S.C. 

1225(b)(1)(B), under which it is the IJ 

review of the credible fear 

determination that serves as the check 

to ensure that individuals who have a 

credible fear are not returned based on 

an erroneous screening determination 

by USCIS. Section 208.30(g)(1)(i) is 

amended to provide that, when DHS 

inquires whether an individual wishes 

to have an IJ review a negative credible 

fear determination, DHS will inform the 

individual that the IJ review will 

include an opportunity for the 

individual to be heard and questioned 

by the IJ. See 8 CFR 208.30(g)(1) 

(proposed). This opportunity will allow 

such individuals to present any 

additional evidence or arguments they 

may wish to make to the IJ, who will 

consider them in making a de novo 

determination about whether the 

individual has a credible fear of 

persecution or torture. 

The clarification that the IJ has sole 

jurisdiction to review the individual’s 

negative credible fear determination and 

that asylum officers may not reconsider 

or reopen a determination that already 

has passed to the jurisdiction of the IJ 

is necessary to ensure that requests for 

reconsideration to USCIS do not 

obstruct the streamlined process that 

Congress intended in creating expedited 

removal. Further, this clarification 

ensures that the necessary efficiencies 

implemented in this proposed rule are 

not undermined. 

The expedited removal statute and its 

implementing regulations generally 

prohibit any further administrative 

review or appeal of an IJ’s decision 

made after review of a negative credible 

fear determination. See INA 

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

1225(b)(1)(B)(iii)(III), (C); 8 CFR 

1003.42(f)(2), 1208.30(g)(2)(iv)(A). 

Congress similarly has made clear its 

intent that expedited removal should 

remain a streamlined, efficient process 

by limiting judicial review of many 

determinations in expedited removal. 

See INA 242(a)(2)(A), (e), 8 U.S.C. 

1252(a)(2)(A), (e). These provisions 

limiting administrative and judicial 

review and directing expeditious 

determinations reflect clear 

congressional intent that expedited 

removal be a truly expedited process. 

Removal of the current language at 8 

CFR 208.30(g)(2)(i) allowing DHS to 

reconsider negative credible fear 

determinations after the IJ concurs is 

consistent with that congressional intent 

and with the purpose of the current 

regulation. 

In recent years, USCIS has received 

growing numbers of meritless 

reconsideration requests, which have 

strained agency resources and resulted 

in significant delays to the expedited 

removal process. The total time to 

review a reconsideration request varies 

widely, but if an office recommends a 

follow-up interview, then the complete 

review process could take more than 5 

hours per request. The Departments 

believe that these resources could be far 

better spent, including in training and 

supervisory efforts, to ensure the high 

quality of USCIS initial screening 

determinations. In many cases, 

reconsideration requests that previously 

were considered are resubmitted 

numerous times without additional 

information, resulting in additional 

delays in removal processes that 

Congress explicitly intended to be 

conducted through streamlined, 

efficient procedures. 

These developments have highlighted 

the need to ensure that the IJ review 

process, rather than reconsideration by 

USCIS, serves as the safeguard against 

erroneous negative screening 

determinations by an asylum officer. 

These changes will ensure that DOJ and 

DHS implementation of the expedited 

removal provisions is consistent with 

statutory intent. The Departments 

believe these changes will help 

accomplish the purpose of the present 

rule to make the framework of the 

screening process, including the process 

following USCIS’s fear determination, 

more efficient and streamlined, while 

ensuring due process is accorded to all 

individuals in expedited removal. The 

Departments seek comments on these 

proposed changes, including on other 

options short of eliminating 

reconsideration entirely—such as 

imposing restrictions on, or 

modifications to, reconsideration 

requests made to USCIS—to address the 

problems outlined above, while also 

ensuring efficiency and the opportunity 

to have one’s protection claim properly 

screened. 

C. Applications for Asylum—Proposed 8 

CFR 208.3(a) and 208.9(a) 

The expedited removal statute 

specifically provides for an exception to 

the mandate that a noncitizen be 

‘‘removed from the United States 

without further hearing or review’’ 

when the noncitizen expresses an 

intention to apply for asylum, a fear of 

persecution or torture, or a fear of return 

to the country of removal. Such a person 

instead is referred to USCIS for a 

credible fear screening. INA 

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

1225(b)(1)(A)(ii). If the noncitizen is 

found to have a credible fear of removal, 

the noncitizen’s claim is referred for 

‘‘further consideration of the application 

for asylum.’’ INA 235(b)(1)(B)(ii), 8 

U.S.C. 1225(b)(1)(B)(ii). This statutory 

language, however, does not specify the 

nature of such ‘‘further consideration.’’ 

Under current regulations, an 

individual who establishes a credible 

fear is placed into removal proceedings 

under section 240 of the INA, 8 U.S.C. 

1229a. Under this process, the 

individual is not required to officially 

request asylum or file the Form I–589, 


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40EOIR, Executive Office for Immigration Review 

Adjudication Statistics: Rates of Asylum Filings in 

Cases Originating with a Credible Fear Claim (July 

2020), https://www.justice.gov/eoir/page/file/ 

1062971/download. 

41 In addition, the Departments are proposing to 

amend 8 CFR 1208.3 and 1208.4 to account for 

changes made by this proposed rule, including the 

proposed provisions that would treat the credible 

fear interviews as an application for asylum in the 

circumstances addressed by the proposed rule. The 

amendment at 8 CFR 1208.3(c)(3) affects language 

that was enacted by DOJ in 2020. See Procedures 

for Asylum and Withholding of Removal, 85 FR 

81698 (Dec. 16, 2020). The December 16, 2020 

rulemaking made various changes to DOJ 

regulations, including 8 CFR 1208.3(c)(3). Id. Those 

changes remain enjoined. See National Immigrant 

Justice Center, et. al., v. Exec. Office for 

Immigration Review, et. al., No. 21–CV–00056 

(D.D.C.). As noted above, the proposed rule would 

make changes to the regulations only as necessary 

to effectuate its goals. The Departments anticipate 

that additional changes to the relevant regulations, 

including rescission of or revision to the language 

added by the enjoined regulation, will be made 

through later rulemakings. 

42While only a spouse or dependent included on 

the credible fear determination or who presently 

has an asylum application pending with USCIS 

after a positive credible fear determination can be 

included on the subsequent asylum application 

under this proposed process, the noncitizen granted 

asylum remains eligible to apply for accompanying 

or follow-to-join benefits for any qualified spouse 

or child not included on the asylum application, as 

provided for in 8 CFR 208.21. The Departments 

believe that it is procedurally impractical to attempt 

to include a spouse or child on the application 

when the spouse or child has not previously been 

placed into expedited removal and subsequently 

referred to USCIS after a positive credible fear 

determination. This is similar to the inability to 

include a spouse or child not in removal 

proceedings under section 240 of the INA on the 

asylum application of a principal asylum 

application who is in such removal proceedings. 

Under such circumstances, there is no clear basis 

for issuing a final order of removal against such an 

individual spouse or child should the asylum 

application be denied. The Departments seek 

comments on this proposed approach. 

Application for Asylum and for 

Withholding of Removal (‘‘Form I– 

589’’), until after being placed into 

removal proceedings. In many cases, the 

application may be filed many months 

after removal proceedings are initiated, 

thus potentially delaying adjudication. 

In many other cases, an application is 

never filed. EOIR has reported that, for 

individuals who were referred to USCIS 

for the credible fear screening process 

and then placed into proceedings before 

EOIR between FY 2008 and the third 

quarter of FY 2020, only 62 percent 

have filed an asylum application with 

EOIR as of July 2020.40

Under this proposed rule, an 

individual who passes the initial 

credible fear screening would have his 

claim reviewed by an asylum officer in 

USCIS in the first instance, rather than 

by an IJ in a removal hearing under 

section 240 of the INA. As part of this 

new procedure for ‘‘further 

consideration,’’ and to eliminate delays 

between a positive credible fear 

determination and the filing of an 

application for asylum, the Departments 

propose that the written record of the 

credible fear determination created by 

USCIS during the credible fear process, 

and subsequently served on the 

individual together with the service of 

the credible fear decision itself, would 

be treated as an ‘‘application for 

asylum,’’ with the date of service on the 

individual considered the date of filing. 

8 CFR 208.3(a)(2) (proposed). Every 

individual who receives a positive 

credible fear determination would be 

considered to have filed an application 

for asylum at the time the determination 

is served on him or her. The application 

would be considered filed or received as 

of the service date for purposes of the 

1-year filing deadline for asylum, see 

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

and for starting the clock for eligibility 

to file for work authorization on the 

basis of a pending asylum application, 

8 CFR 208.3(c)(3) (current). The 

Departments propose that this 

application for asylum would not be 

subject to the completeness requirement 

of 8 CFR 208.3(c) and 208.9(a) in order 

to qualify for hearing and adjudication, 

but it would be subject to the other 

conditions and consequences provided 

for in 8 CFR 208.3(c) once the 

noncitizen signs the documentation 

under penalty of perjury and with 

notice of the consequences of the filing 

of a frivolous asylum application at the 

time of the asylum officer hearing.41

The Departments plan to implement 

these changes to the credible fear 

process by having the trained USCIS 

asylum officer conducting the credible 

fear interview advise the noncitizen of 

the consequences of filing a frivolous 

asylum application and capture the 

noncitizen’s relevant information 

through testimony provided under oath. 

During this process, the asylum officer 

would ‘‘elicit all relevant and useful 

information’’ for the credible fear 

determination, id. § 208.30(d), create a 

summary of the material facts presented 

by the noncitizen during the interview, 

read the summary back to the 

noncitizen, and allow the noncitizen to 

correct any errors, id. § 208.30(d)(6). 

The record created would contain the 

necessary biographical information and 

sufficient information related to the 

noncitizen’s fear claim to be considered 

an application. The information 

captured by the asylum officer during 

the credible fear interview will contain 

information about the noncitizen’s 

spouse and children, including those 

who were not part of the credible fear 

determination—but under this proposed 

rule only a spouse or children who were 

included in the credible fear 

determination issued pursuant to 

proposed 8 CFR 208.30(c) or have a 

pending asylum application with USCIS 

pursuant to § 208.2(a)(1)(ii) can be 

included on the request for 

asylum.42 See id. § 208.3(a)(2). A copy of 

this application for asylum, including 

the officer’s notes from the interview 

and basis for the determination, would 

be provided to the noncitizen at the 

time that the credible fear determination 

is served. See id. § 208.30(f), (g)(1). As 

proposed in this rule, the noncitizen 

would be allowed to supplement or 

request modifications or corrections to 

this application up until 7 days prior to 

the scheduled asylum hearing before a 

USCIS asylum officer, or for documents 

submitted by mail, postmarked no later 

than 10 days before the scheduled 

asylum hearing. Id. § 208.3(a)(2). 

The information required to be 

gathered during the credible fear 

screening process is based on the 

noncitizen’s own testimony under oath 

in response to questions from a trained 

USCIS asylum officer. Thus, the 

Departments believe that the screening 

would provide sufficient information 

upon which to conduct a full asylum 

interview. Under this proposed rule, all 

noncitizens who receive a positive 

credible fear determination would have 

an asylum application on file with the 

Government within days of their 

credible fear screenings, thereby 

meeting the one-year asylum filing 

deadline, avoiding the risk of filing 

delays, and immediately beginning the 

waiting period for work authorization 

eligibility. Understanding that 

noncitizens may want to modify, 

correct, or supplement the initial 

presentation of their protection claims, 

this proposed rule would allow the 

noncitizen to do so in advance of the 

hearing before the asylum officer. The 

Departments seek comments on all 

aspects of this proposed change. 

D. Proceedings for Further 

Consideration of the Application for 

Asylum by USCIS Asylum Officer in 

Asylum and Withholding Merits Hearing 

for Noncitizens With Credible Fear— 

Proposed 8 CFR 208.2(a) and (c); 

208.9(a), (f), and (g); 208.14(c)(5); 

208.30(e) and (f); 235.6(a)(1); 1003.42; 

and 1208.30(g) 

As noted earlier in the preamble, 

under the current regulatory framework, 

if an asylum officer determines that a 

noncitizen subject to expedited removal 

has a credible fear of persecution or 


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43See 8 CFR 208.30(f) (2018); supra note 24 

(explaining that various changes to these 

procedures have been enjoined). 

44 Inspection and Expedited Removal of Aliens; 

Detention and Removal of Aliens; Conduct of 

Removal Proceedings; Asylum Procedures, 62 FR 

10312 (Mar. 6, 1997) (interim final rule). 

45 Id. at 10320; see Inspection and Expedited 

Removal of Aliens; Detention and Removal of 

Aliens; Conduct of Removal Proceedings; Asylum 

Procedures, 62 FR 444, 447 (Jan. 3, 1997) (proposed 

rule) (noting that although the statute calls for 

further consideration of the noncitizen’s asylum 

application, it ‘‘does not specify how or by whom 

this further consideration should be conducted’’). 

46 62 FR at 10320. 

47See also Henson v. Santander Consumer USA, 

Inc., 137 S. Ct. 1718, 1723 (2017) (‘‘[U]sually at 

least, . . . we presume differences in language . . . 

convey differences in meaning.’’). 

48The Departments acknowledge that there is 

some legislative history suggesting that some 

Members of Congress believed that individuals 

found to have a credible fear would be referred to 

section 240 removal proceedings. See, e.g., H.R. 

Rep. No. 104–828, at 209 (1996) (suggesting that 

noncitizens who received positive credible fear 

determinations would be placed in ‘‘normal nonexpedited removal proceedings’’). But the 

Departments are not convinced that the legislative 

history is sufficiently clear to foreclose an option 

the text itself does not ‘‘unambiguously forbid.’’ 

Barnhart v. Walton, 535 U.S. 212, 218 (2002). 

Indeed, other Members of Congress took a different 

view. See Letter for Richard A. Sloan, Director, 

Policy Directives and Instructions Branch, 

Immigration and Naturalization Service, from 

Lamar Smith, Chairman, Subcommittee on 

Immigration and Claims, Re: INS 1788–96, RIN 

1115–AE47 (Feb. 3, 1997), in Implementation to 

Title III of the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996: Hearing 

Before the Subcomm. on Immigration and Claims 

of the H. Comm. on the Judiciary, 105th Cong. 21– 

22 (1997) (‘‘Section 235(b)(1)(B)(ii) [was] drafted 

deliberately to leave flexibility regarding how the 

asylum adjudication would take place.’’). 

torture, DHS places the noncitizen 

before an immigration court for 

adjudication of the noncitizen’s claims 

by initiating section 240 removal 

proceedings.43 Similarly, if an IJ, upon 

review of the asylum officer’s negative 

credible fear determination, finds that 

the noncitizen possesses a credible fear 

of persecution or torture, the IJ vacates 

the expedited removal order, and DHS 

initiates section 240 removal 

proceedings. 8 CFR 1208.30(g)(2)(iv)(B). 

Section 240 removal proceedings, which 

are used to determine removability as 

well as eligibility for any relief or 

protection from removal, currently 

provide additional procedural 

protections, including greater 

administrative and judicial review, than 

expedited removal proceedings under 

section 235 of the Act. Compare INA 

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

240, 8 U.S.C. 1229a. 

As noted previously, however, the 

expedited removal statute provides only 

that a noncitizen who is found to have 

a credible fear ‘‘shall be detained for 

further consideration of the application 

for asylum.’’ INA 235(b)(1)(B)(ii), 8 

U.S.C. 1225(b)(1)(B)(ii). The statute 

mandates neither that the noncitizen be 

placed in removal proceedings generally 

nor placed in section 240 removal 

proceedings specifically. Id. 

The regulations regarding the credible 

fear process, and the interplay between 

expedited removal and section 240 

removal proceedings, were first adopted 

in 1997.44 At the time, the former INS 

explicitly recognized that ‘‘the statute is 

silent as to the procedures for those who 

do demonstrate a credible fear of 

persecution.’’ 45 Faced with this 

ambiguity, the INS opted at the time to 

have the further consideration take 

place in pre-existing section 240 

removal proceedings rather than create 

new proceedings for this purpose.46 But 

the INS’s contemporaneous analysis was 

very limited. 

The Departments believe that section 

235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), 

authorizes a procedure for ‘‘further 

consideration of [an] application for 

asylum’’ that is separate from section 

240 removal proceedings. By its terms, 

the phrase ‘‘further consideration’’ is 

open-ended and does not mandate any 

particular procedure. It is thus naturally 

read as giving DHS flexibility to 

determine the appropriate procedure for 

consideration of noncitizens’ asylum 

claims after establishing a credible fear 

in the expedited removal process. 

Moreover, while section 235(b)(1) of the 

INA, 8 U.S.C. 1225(b)(1), mandates that 

a noncitizen with a positive credible 

fear determination receive ‘‘further 

consideration of [the noncitizen’s] 

application for asylum,’’ section 

235(b)(2) of the INA, 8 U.S.C. 1225(b)(2), 

mandates that other classes of 

noncitizens receive ‘‘a proceeding under 

section 1229a of this title,’’ i.e., section 

240 of the INA. Compare INA 

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

1225(b)(1)(B)(ii), with INA 235(b)(2)(A), 

8 U.S.C. 1225(b)(2)(A). The difference in 

language suggests that section 235(b)(1) 

of the INA, 8 U.S.C. 1225(b)(1), does not 

require use of section 240 removal 

proceedings, in contrast to section 

235(b)(2), 8 U.S.C. 1225(b)(2), which 

does. The Supreme Court has observed 

that ‘‘[w]here Congress includes 

particular language in one section of a 

statute but omits it in another section of 

the same act, it is generally presumed 

that Congress acts intentionally and 

purposely in the disparate inclusion or 

exclusion.’’ Russello v. United States, 

464 U.S. 16, 23 (1983) (internal 

quotation marks and citation omitted). 

More recently, the D.C. Circuit stated 

that it has ‘‘consistently recognized that 

a congressional mandate in one section 

and silence in another often suggests not 

a prohibition but simply a decision not 

to mandate any solution in the second 

context, i.e., to leave the question to 

agency discretion.’’ Catawba Cty., N.C. 

v. EPA, 571 F.3d 20, 36 (D.C. Cir. 2009) 

(emphasis in original) (internal 

quotation marks and citation omitted).47

The inference that Congress’s silence 

intentionally permits agency discretion 

is reinforced by the fact that the 

noncitizens whom DHS has elected to 

process into the United States using the 

expedited removal procedure are 

expressly excluded from the class of 

noncitizens who are statutorily 

guaranteed section 240 removal 

proceedings under section 235(b)(2)(A) 

of the INA, 8 U.S.C. 1225(b)(2)(A). See 

INA 235(b)(2)(B)(ii), 8 U.S.C. 

1225(b)(2)(B)(ii). 

Second, a noncitizen with a positive 

credible fear determination is entitled 

only to a further proceeding related to 

their ‘‘application for asylum,’’ or for 

withholding of removal under section 

241(b)(3) of the INA, 8 U.S.C. 1251(b)(3), 

or withholding or deferral of removal 

under the regulations implementing 

U.S. obligations under Article 3 of the 

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

1225(b)(1)(B)(ii); 8 CFR 208.30(e). An 

asylum application’s purpose is to 

determine whether the noncitizen is 

entitled to relief or protection from 

removal, not whether the noncitizen 

should be admitted or granted other 

immigration benefits. See Sanchez v. 

Mayorkas, 141 S. Ct. 1809, 1813 (2021) 

(‘‘[A] foreign national can be in lawful 

status but not admitted—think of 

someone who entered the country 

unlawfully, but then received asylum.’’); 

Matter of V–X–, 26 I&N Dec. 147, 150 

(BIA 2013) (holding that, ‘‘although [a 

noncitizen’s] grant of asylum confer[s] a 

lawful status upon him, it [does] not 

entail an ‘admission’ ’’). By contrast, the 

purpose of a section 240 removal 

proceeding is to ‘‘determin[e] whether [a 

noncitizen] may be admitted to the 

United States.’’ INA 240(a)(3), 8 U.S.C. 

1229a(a)(3). In section 240 removal 

proceedings, both removability and 

entitlement to various forms of relief or 

protection are determined. Compare 

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

1225(b)(1)(B)(ii), with INA 240(c)(2)–(4), 

8 U.S.C. 1229a(c)(2)–(4).48 Moreover, 

the Departments believe that it is better 

policy to place noncitizens with a 

positive credible fear determination 

initially in nonadversarial proceedings 

in which their asylum claims can be 

adjudicated by asylum officers. 

The idea of allowing USCIS asylum 

officers to fully adjudicate the 


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49USCIRF, Report on Asylum Seekers in 

Expedited Removal, Volume I: Findings & 

Recommendations 66 (Feb. 2005), https://

www.uscirf.gov/sites/default/files/resources/stories/ 

pdf/asylum_seekers/Volume_I.pdf. 50USCIRF, Barriers to Protection: The Treatment 

of Asylum Seekers in Expedited Removal 54 (Aug. 

2016), https://www.uscirf.gov/sites/default/files/ 

Barriers%20To%20Protection.pdf. 51Administrative Conference of the United 

States, Administrative Conference Recommendation 

2012–3: Immigration Removal Adjudication 15 

(June 15, 2012), https://www.acus.gov/sites/default/ 

files/documents/2012-3.pdf. 52 Doris Meissner, Faye Hipsman, & T. Alexander 

Aleinikoff, The U.S. Asylum System in Crisis: 

Charting a Way Forward 3, Migration Policy 

Institute (Sept. 2018), https://

www.migrationpolicy.org/sites/default/files/ 

publications/MPI-AsylumSystemInCrisis-Final.pdf. 

53 Id. at 26. 

54HSAC, CBP Families and Children Care Panel 

Final Report 24 (Nov. 14, 2019), https://

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

final_report_1.pdf. 

55 Id. at 4. 

protection claims made by noncitizens 

who receive a positive credible fear 

determination is not new. In its 

congressionally mandated 2005 report 

on the expedited removal process, the 

U.S. Commission on International 

Religious Freedom (‘‘USCIRF’’) 

recommended that asylum officers be 

allowed to grant asylum to ease ‘‘the 

burden on the detention system, the 

immigration courts, and bona fide 

asylum seekers in Expedited 

Removal.’’ 49 The USCIRF repeated this 

recommendation when it conducted a 

follow-up study and issued an updated 

report in 2016, stating as follows: 

One solution to reduce the immigration 

courts’ caseload and backlog is to allow 

asylum officers to adjudicate defensive 

asylum claims, as USCIRF recommended in 

the 2005 Study. Asylum officers have the 

legal background and training to adjudicate 

asylum claims, and do so for affirmative 

asylum cases. Further, having an asylum 

officer review a credible fear claim and then 

having an immigration judge review an 

asylum claim creates significant redundancy 

without necessarily adding value.50

In 2012, the Administrative 

Conference of the United States studied 

the removal process and also issued 

recommendations that regulations be 

changed to allow for asylum officers to 

adjudicate protection claims for 

noncitizens determined to have a 

credible fear as part of a package of 

proposals to improve the operations of 

the immigration courts.51 More recently, 

experts from the Migration Policy 

Institute (‘‘MPI’’) reached a similar 

conclusion in a 2018 report on the state 

of the U.S. asylum system. MPI 

concluded as follows: 

Allowing cases with positive credible-fear 

findings to instead remain with the Asylum 

Division for the full asylum merits 

adjudication would capitalize on the 

investment of time and expertise the division 

has already made. It would also enable 

meritorious cases to be resolved more 

quickly, reducing the overall asylum system 

backlogs and using limited asylum officer 

and IJ resources more efficiently.52

In reaching this conclusion, these 

experts noted that moving the cases to 

the USCIS Asylum Division for 

adjudication plays to its strengths, 

including its experience in handling 

asylum and asylum-related 

adjudications; its regular trainings on 

asylum-related country conditions and 

legal issues, as well as nonadversarial 

interviewing techniques; and its ready 

access to country conditions experts. 

Additionally, the MPI experts 

concluded that nonadversarial 

proceedings are well suited for this 

process because they are ‘‘considerably 

less resource-intensive than 

immigration court proceedings’’ and 

‘‘lend themselves to a fuller 

understanding of the strengths and 

weaknesses of an applicant’s case.’’ 53

The DHS Homeland Security Advisory 

Council’s (‘‘HSAC’’) bipartisan CBP 

Families and Children Care Panel also 

included this recommendation in its 

final report to the Secretary.54 This 

panel of the HSAC was created at the 

request of the Secretary in October 2018 

to study ‘‘the burgeoning humanitarian 

crisis resulting from a surge in migration 

of families, primarily from Guatemala 

and Honduras, overwhelming the DHS 

resources at the border to address the 

crisis.’’ 55

The Departments acknowledge that 

the above recommendations assumed 

that individuals denied asylum by a 

USCIS asylum officer would be issued 

an NTA and placed into section 240 

removal proceedings before an IJ, where 

the noncitizen would have a second, 

full evidentiary hearing on the asylum 

application with a different decisionmaker. This proposed rule would not 

adopt that approach, as the Departments 

determined it was unnecessary, 

duplicative, and inefficient. Instead, as 

noted in the previous section, this 

proposed rule would establish a new 

process that would require the IJ to 

conduct a de novo review of a denied 

application for protection when such 

review is requested, but it would not 

provide the noncitizen with a second 

full evidentiary hearing to present the 

claim. The Departments believe that an 

approach requiring a full evidentiary 

hearing before an IJ after an asylum 

officer’s denial would lead to 

inefficiencies without adding additional 

value or procedural protections. Under 

this proposal, the asylum officer will 

have developed and considered the 

noncitizen’s claim fully, including by 

taking testimony and accepting 

evidence, during the nonadversarial 

proceeding. If a noncitizen seeks review 

of an asylum officer’s denial, the IJ 

would have a complete record for 

review developed by the asylum officer 

(including a transcript of the hearing 

and any evidence offered by the 

applicant or otherwise considered by 

the officer) and the written decision of 

the asylum officer. The noncitizen 

would have a full opportunity to 

challenge the asylum officer’s denial 

during this review process and would 

not need to present their claim at a 

second full hearing. Instead, to the 

extent that a noncitizen seeks to 

introduce additional non-duplicative 

testimony or evidence, a provision of 

the proposed rule would allow them to 

do so if certain requirements are met. 

See 8 CFR 1003.48(e) (proposed). 

Accordingly, the Departments believe 

that a second full evidentiary hearing 

before an IJ is unnecessary and 

inefficient. A further description of the 

proposed review process follows in the 

next section. 

This proposed rule would change 

current procedures to allow a noncitizen 

who is found to have a credible fear to 

have a full adjudication of the 

noncitizen’s protection claims by an 

asylum officer. 8 CFR 208.2(a) 

(proposed) (revising jurisdiction over 

asylum applications in order to provide 

USCIS jurisdiction to hear asylum 

claims after a positive credible fear 

determination), id. § 208.30(f) (retention 

of a positive credible fear determination 

with USCIS for an asylum hearing); id. 

§§ 1003.42, 1208.30(g) (referral of 

negative credible fear determinations 

vacated by an IJ to USCIS for an asylum 

hearing). This would supplant the 

process in place prior to this proposed 

rule whereby DHS referred such an 

individual directly to an IJ for an 

adversarial hearing in a section 240 

removal proceeding. Proposed 8 CFR 

1003.42 and 1208.30(g) of the EOIR 

regulations reflect similar changes, 

enabling an IJ who vacates an asylum 

officer’s negative credible fear 

determination to refer the case back to 

USCIS for an asylum hearing. 

The Departments propose to make 

corresponding amendments to 8 CFR 

208.2(c), 8 CFR 208.30(e)(5) and (f), and 

8 CFR 235.6(a)(1) to provide that the 

cases of individuals who receive a 

positive credible fear determination may 

be retained by USCIS for a 

nonadversarial hearing before a USCIS 

asylum officer under the jurisdiction of 

8 CFR 208.2(a)(1)(ii) to determine 

eligibility for asylum, statutory 

withholding of removal, and 


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withholding of deferral or removal 

under CAT. The Departments also 

propose to amend 8 CFR 1003.1, 8 CFR 

1003.12, 8 CFR 1208.2, and 8 CFR 

1208.30 of the EOIR regulations, and to 

add a new section 8 CFR 1003.48, to 

make corresponding changes regarding 

how and when cases involving 

individuals found to have a credible fear 

would be referred by DHS to EOIR. 

The proposed nonadversarial 

proceedings for further consideration of 

asylum applications by asylum officers 

would provide protections similar to 

those provided in section 240 removal 

proceedings. The asylum officer’s 

consideration under this proposal, 

however, would be limited solely to 

claims for asylum, statutory 

withholding of removal, and 

withholding or deferral of removal 

under the CAT regulations. 8 CFR 

208.2(a)(2) (proposed). Under this 

proposed rule, if the asylum officer 

denies the noncitizen asylum, statutory 

withholding of removal, and protection 

under the CAT regulations, the 

noncitizen would be ordered removed 

based upon the immigration officer’s 

earlier inadmissibility determination 

under section 235(b)(1)(A)(i) of the INA, 

8 U.S.C. 1225(b)(1)(A)(i). The 

noncitizen, may, however appeal an 

adverse decision to an IJ, and if 

necessary, to the BIA. 8 CFR 

208.14(c)(5), 1003.1(b)(15), 1208.2(b). 

To allow asylum officers to carry out 

this new responsibility fully, additional 

changes to the regulations have been 

proposed. First, the Departments 

propose that under 8 CFR 208.9(f), 

asylum officers would be required to 

record the asylum hearing and that a 

transcript of that recording would be 

made part of the record whenever a 

noncitizen denied protection seeks 

review of a denial. USCIS would 

transcribe the asylum hearing recording 

and a copy of the transcript and the 

record developed at the hearing would 

be served on the applicant and filed 

with the immigration court. The hearing 

would be transcribed prior to the record 

being referred for review. Second, the 

Departments propose that USCIS be 

required to provide an interpreter for 

any hearing, just as EOIR is required to 

do for a removal hearing. 8 CFR 208.9(g) 

(proposed). Third, as in section 240 

removal proceedings, the Departments 

propose that the noncitizen would be 

entitled to be represented, at no expense 

to the Government, by counsel of the 

noncitizen’s choosing who is authorized 

to practice in such proceedings. See id. 

§ 1003.12 (proposed), 1003.16 (current); 

cf. 8 U.S.C. 1229a(b)(4). 

The Departments propose that the 

‘‘failure to appear’’ rule at 8 CFR 208.10 

be revised to allow for an order of 

removal to be issued when the 

noncitizen fails to appear for the 

scheduled hearing with the asylum 

officer. Changes to 8 CFR 208.16 

through 208.19 also are proposed in 

order to provide asylum officers 

authority to adjudicate claims for 

withholding of removal under section 

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

and withholding and deferral of removal 

under the regulations implementing the 

CAT. Existing 8 CFR 208.14(b) already 

provides USCIS the authority to grant an 

asylum application properly within 

USCIS’s jurisdiction, including the 

jurisdiction given USCIS by this 

proposed rule over asylum applications 

from noncitizens determined to have a 

credible fear. Similar authority is 

provided for immigration judges in 

existing 8 CFR 1208.14. Finally, the 

Departments propose that 8 CFR 

208.14(c)(5) be added to provide the 

process for USCIS to deny an 

application for asylum, including the 

issuance of a decision on withholding 

and deferral of removal if asylum is 

denied; the issuance of an order of 

removal by the asylum officer after the 

merits hearing; and the process for the 

applicant to seek review of an asylum 

denial before an IJ. Review of these 

decisions would be governed by 

proposed 8 CFR 1003.48. The 

Departments also propose technical 

edits to 8 CFR 208.22 to include 

references to corresponding sections of 

both 8 CFR part 208 and 8 CFR part 

1208. The Departments seek comments 

on all aspects of these proposed 

changes, including whether different or 

additional decision and review 

procedures should apply to applications 

considered under this proposed process. 

The authority of asylum officers to 

enter an order of removal after denying 

a noncitizen’s asylum claim follows 

from the relevant provisions of the INA. 

By definition, noncitizens who are 

placed into expedited removal already 

have been determined to be 

inadmissible and are protected from 

immediate removal only because their 

credible fear of persecution entitled 

them to further consideration of their 

asylum claim. See INA 235(b)(1), 8 

U.S.C. 1225(b)(1). If, after that further 

consideration, an asylum officer 

concludes that a noncitizen is not 

entitled to asylum, that determination 

removes the only remaining legal barrier 

to removal. That determination qualifies 

as an order of removal under the 

relevant statutory definition, which 

provides that an ‘‘order of deportation’’ 

includes not only an order ‘‘ordering 

deportation,’’ but also an order 

‘‘concluding that [a noncitizen] is 

deportable.’’ INA 101(a)(47)(A), 8 U.S.C. 

1101(47)(A). The Seventh Circuit 

reached the same conclusion in 

addressing another class of noncitizens 

whose only defense to removal is a 

potential asylum claim: Those who 

entered under the visa-waiver program, 

INA 217(b)(2), 8 U.S.C. 1187(b)(2). The 

court explained that an order denying 

such a noncitizen’s asylum claim is an 

order of removal because ‘‘an order that 

is proper only if the [noncitizen] is 

removable implies an order of removal.’’ 

Mitondo v. Mukasey, 523 F.3d 784, 787 

(7th Cir. 2008). This proposed rule 

therefore would provide that if the 

noncitizen is not granted asylum at the 

conclusion of the asylum hearing, the 

asylum officer is authorized to issue an 

order of removal. 

E. Application Review Proceedings 

Before the Immigration Judge— 

Proposed 8 CFR 1208.2(c), 1003.48 

The Departments propose to amend 8 

CFR 1208.2(c) and add 8 CFR 1003.48 

to establish new IJ review proceedings 

for those noncitizens who establish a 

credible fear of persecution or torture 

but (1) were found by USCIS not to 

merit asylum, statutory withholding of 

removal, or protection under the CAT 

and its implementing regulations; and 

(2) affirmatively request further review 

of their applications by an IJ. The 

Departments propose that upon a 

referral of the case from USCIS, the IJ 

would conduct a de novo review of 

USCIS’s denial of the claims. 

Under these proposed limited review 

proceedings, unlike under section 240 

of the INA, 8 U.S.C. 1229a, the IJ would 

not have authority to consider issues 

related to a noncitizen’s removability or 

a noncitizen’s eligibility for any other 

relief from removal. Moreover, an IJ 

ordinarily would not conduct an 

evidentiary hearing on the noncitizen’s 

asylum application. Rather, the IJ would 

determine, after de novo review of the 

full record of proceedings created 

during asylum officer hearings and 

consideration of any additional 

testimony or evidence permitted under 

the proposed process described below, 

whether a noncitizen is eligible for 

asylum or withholding of removal under 

the Act or withholding or deferral of 

removal under the CAT. Although the 

Departments intend these proceedings 

to be more streamlined than section 240 

removal proceedings, asylum officer and 

IJ review, together, would provide 

significant protections to ensure that 

these noncitizens continue to receive 

full and fair adjudication of their 

applications. 


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56See, e.g., INS v. Abudu, 485 U.S. 94, 107 (1988) 

(‘‘There is a strong public interest in bringing 

litigation to a close as promptly as is consistent 

with the interest in giving the adversaries a fair 

opportunity to develop and present their respective 

cases.’’). 

57See, e.g., Matter of Coelho, 20 I&N Dec. 464, 

473 (BIA 1992) (providing that the moving party 

generally must demonstrate that ‘‘new evidence 

offered would likely change the result in the case’’ 

in order for the BIA to consider granting a 

discretionary motion to remand). 

For noncitizens who affirmatively 

request further review by an IJ, the 

Departments propose that DHS would 

initiate the review proceedings through 

the service of a Form I–863, Notice of 

Referral to Immigration Judge, on the 

noncitizen. As proposed in 8 CFR 

1003.48(b), DHS would file the 

following items with the immigration 

court: (1) A copy of the Notice of 

Referral; (2) a copy of the record of 

proceedings before the asylum officer, 

as outlined in 8 CFR 208.9(f); (3) the 

asylum officer’s written decision, 

including the removal order issued 

under 8 CFR 208.14(c)(5) by the asylum 

officer; and (4) proof that DHS served 

the Notice of Referral, the record of 

proceedings, and the asylum officer’s 

written decision, including the removal 

order, on the noncitizen. Unlike in 

credible fear determination reviews, 

where the IJ is provided only asylum 

officers’ notes from the interview, the 

summary of the material facts, and other 

limited records, see, e.g., 8 CFR 

208.30(e)(4), the proposed requirements 

in 8 CFR 1003.48(b) would ensure that 

cases would only be referred to the 

immigration courts following asylum 

officers’ full nonadversarial 

adjudication of the noncitizens’ 

applications, and that IJs and 

noncitizens would have asylum officers’ 

decisions and complete records of the 

hearings in advance of the IJ review. 

This would allow the noncitizen to have 

notice of the reasons for the asylum 

officer’s denial in advance of the 

immigration court review process, and it 

would allow the IJ to conduct a 

thorough review of the asylum officer’s 

decision based on the application and 

complete record developed before the 

asylum officer. Accordingly, because the 

IJ would be provided the complete 

record of proceedings from the asylum 

officer hearing, the Departments expect 

that the IJ generally would be able to 

complete the de novo review solely on 

the basis of the record before the asylum 

officer, taking into consideration any 

arguments raised by the noncitizen, or 

the noncitizen’s counsel, and DHS. 

That said, the proposed rule 

recognizes that the factual record as 

elicited by the asylum officer sometimes 

will need to be further developed before 

the IJ. The rule proposes at 8 CFR 

1003.48(e) that an IJ does not have the 

authority to remand a case to an asylum 

officer because the Departments believe 

that this would be unnecessary and 

inefficient. Instead, the rule proposes 

that a party may seek to introduce 

additional testimony or documentation 

so long as the party demonstrates to the 

IJ that the testimony or documentation 

is not duplicative of the testimony or 

documentation considered by the 

asylum officer and that it is necessary to 

develop the factual record to allow the 

IJ to issue a reasoned decision in the 

case. The Departments expect that an IJ 

may, in appropriate cases, require 

parties to submit prehearing statements 

or briefs concerning whether they will 

seek to introduce additional testimony 

or documentation and, if so, explaining 

why this testimony or documentation 

meets the standard at 8 CFR 1003.48(e). 

The Departments further expect that, 

where necessary, for example in cases 

involving pro se applicants, IJs will, 

before proceeding with the case, explain 

in court the standards for submitting 

additional testimony and 

documentation. This proposed 

provision would ensure a full and fair 

evaluation of the applicant’s application 

for asylum, withholding of removal 

under the Act, or withholding or 

deferral of removal under the CAT. 

The Departments believe that this 

proposed regulatory scheme—under 

which IJs typically would rely on the 

record created at the asylum officer 

hearing but could allow additional 

testimony and evidence if a party 

establishes that doing so is necessary— 

is the best way to balance efficiency and 

fairness considerations appropriately.56

The Departments believe that these 

proceedings, as proposed, will be more 

streamlined than removal proceedings 

but will still provide the parties with a 

fair opportunity to present their cases. 

Nevertheless, the Departments 

understand that there are alternative 

threshold standards for the introduction 

of evidence or the reopening of 

proceedings.57 Accordingly, the 

Departments request the public’s 

comments on the proposed evidentiary 

threshold requirements, including any 

suggestions for alternatives that balance 

efficiency and fairness considerations, 

particularly taking into account 

challenges pro se applicants for asylum 

and related protection sometimes face in 

developing their claims. 

To ensure that noncitizens have a full 

and fair opportunity to prepare for and 

receive review of their claims, the 

Departments propose that many of the 

procedural safeguards that apply in 

section 240 removal proceedings would 

apply to the IJ review proceedings as 

well. Unless specifically indicated in 8 

CFR 1003.48 of the EOIR proposed 

rules, the general rules of procedure that 

apply in removal proceedings before the 

immigration courts also would apply to 

these proceedings. This would include 

a noncitizen’s rights (1) to obtain 

representation by an attorney or other 

representative authorized to appear 

before the immigration court, at no cost 

to the Government, see 8 CFR 

1003.16(b); (2) to seek a change of 

venue, see id. § 1003.20(b); and (3) to 

seek a continuance for good cause 

shown, see id. § 1003.29. Moreover, the 

provisions of 8 CFR 1003.2 and 1003.23 

governing motions to reopen and 

reconsider generally would be 

applicable to decisions rendered by IJs 

or the BIA in these proceedings. The 

Departments also propose to add a 

cross-reference in 8 CFR 1003.12 to the 

new proceedings under 8 CFR 1003.48 

to codify these procedural protections. 

The rule further proposes at 8 CFR 

1003.48(d) that the IJ would have the 

discretion, pursuant to a motion filed by 

an applicant, to vacate the asylum 

officer’s order of removal. For the 

motion to be granted, the applicant 

would have to show that he or she is 

prima facie eligible for a form of relief 

that cannot be granted in proceedings 

under 8 CFR 1003.48. With the motion 

granted, DHS would have the discretion 

to place the applicant in removal 

proceedings. An applicant would be 

permitted to file only one such motion, 

the motion would have to be filed before 

the IJ issues a decision on the 

applications for asylum and related 

protection, and motions to apply for 

voluntary departure would not be 

granted. The Departments believe these 

limitations are appropriate given the 

goal of meaningfully streamlining these 

proceedings as compared with removal 

proceedings. That said, the Departments 

seek the public’s comments on whether 

the provisions relating to motions to 

vacate removal orders appropriately 

balance fairness and efficiency 

considerations. 

In these proposed proceedings, the IJ 

would have the authority to review all 

decisions issued by the asylum officer, 

upon request by the applicant. See 8 

CFR 1003.48(a) (proposed). For 

example, if the asylum officer denies an 

applicant’s application for asylum but 

grants the applicant’s application for 

withholding of removal under the Act, 

and the applicant requests review by an 

IJ, the IJ would have the authority to 

review not only the denial of asylum but 

also the grant of withholding of removal 

as well. In these mixed cases, the 


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58A grant of withholding of removal ‘‘does not 

afford [a noncitizen] any permanent right to remain 

in the United States’’ and ‘‘does not prevent the 

DHS from removing [a noncitizen] to a country 

other than the one to which removal has been 

withheld.’’ Guzman Chavez, 141 S. Ct. at 2286 

(quoting Matter of I-S- & C-S-, 24 I&N Dec. 432, 434 

(BIA 2008)). That presupposes the issuance of a 

removal order to preserve DHS’s discretion to 

remove the noncitizen to a third country. See id. at 

2287–88 (noting that ‘‘it is axiomatic that in order 

to withhold removal there must first be an order of 

removal that can be withheld’’ (internal quotation 

marks and citation omitted)). 

59The courts of appeals have jurisdiction to 

review ‘‘a final order of removal.’’ INA 242(a)(1), 8 

U.S.C. 1252(a)(1). As several courts of appeals have 

held, that grant of jurisdiction includes the 

authority to review a conclusion that an otherwiseremovable noncitizen is ineligible for asylum, even 

where—unlike under the present rule—‘‘no formal 

order of removal has been entered.’’ Mitondo, 523 

F.3d at 787; see Shehu v. Att’y Gen., 482 F.3d 652, 

656 (3d Cir. 2007); Kanacevic v. INS, 448 F.3d 129, 

134–35 (2d Cir. 2006); Nreka v. Att’y Gen., 408 F.3d 

1361, 1366–67 (11th Cir. 2005). The courts of 

appeals do not have jurisdiction to review ‘‘an order 

of removal without a hearing pursuant to [8 U.S.C.] 

1225(b)(1).’’ INA 242(a)(1), 8 U.S.C. 1252(a)(1); see 

INA 242(a)(2)(A), 8 U.S.C. 1252(a)(2)(A) (additional 

limits on review of matters related to removal 

orders issued pursuant to INA 235(b)(1), 8 U.S.C. 

1225(b)(1)). That limitation does not apply here. An 

order of removal entered after an asylum officer 

conducts a full hearing on a noncitizen’s asylum 

application is not ‘‘an order or removal without a 

hearing.’’ And, in the context of INA 242’s limits 

on judicial review, the references to an order of 

removal issued ‘‘pursuant to’’ INA 242(b)(1), 8 

U.S.C. 1225(b)(1), most naturally is read to 

encompass only the orders expressly described in 

that provision: An order issued when a noncitizen 

subject to expedited removal does not indicate an 

intention to apply for asylum or a fear of 

persecution, INA 235(b)(1)(A)(i), 8 U.S.C. 

1225(b)(1)(A)(i), or an order issued when a 

noncitizen is found not to have a credible fear of 

persecution, INA 235(b)(1)(B)(iii)(I),8 U.S.C. 

1225(b)(1)(B)(iii)(I). Cf. Guerrero-Lasprilla v. Barr, 

140 S. Ct. 1062, 1069 (2020) (applying ‘‘the 

presumption favoring judicial review of 

administrative action’’ in construing another limit 

on judicial review in INA 242, 8 U.S.C. 1252). 

60USCIS presently has over 400,000 pending 

affirmative asylum applications awaiting interview 

or adjudication. In proposing this rule, the 

Departments seek to avoid simply shifting work 

from a resource-challenged EOIR to a similarly 

resource-challenged USCIS Asylum Division. DHS 

seeks to fully resource the USCIS Asylum Division 

to handle their present workloads and this new 

workload prior to the USCIS full takeover of the 

adjudication of protection claims that follow a 

positive credible fear determination. 

Departments believe it is appropriate, 

where the applicant has requested 

review of an asylum officer’s decision, 

to permit IJs to review not only the 

denial but also the grant, because DHS 

could present documentation or 

testimony before the IJ that is admissible 

under 8 CFR 1003.48(e) and that 

indicates that the applicant does not 

qualify for any of the relief or protection 

at issue. The Departments seek 

comment on whether the IJ should have 

the authority to review all decisions of 

the asylum officer in this manner. 

As proposed at 8 CFR 1003.48(e), if 

the IJ determines that the noncitizen is 

eligible for and merits asylum as a 

matter of discretion, the IJ would issue 

a decision vacating the order of removal 

issued by the asylum officer based upon 

the immigration officer’s initial 

inadmissibility determination under 

section 235(b)(1)(A)(i) of the Act, 8 

U.S.C. 1225(b)(1)(A)(i), and granting the 

noncitizen asylum. If the IJ determines 

that the noncitizen is eligible for 

withholding of removal under the Act or 

withholding or deferral of removal 

under the CAT, the IJ would issue a 

decision granting the appropriate 

protection, but the IJ would not vacate 

the removal order issued by the asylum 

officer.58

The Departments propose that either 

party may appeal the IJ’s decision 

rendered in the new proceedings under 

8 CFR 1003.48 to the BIA in accordance 

with the standard EOIR appeal 

procedures that currently apply to 

removal proceedings, including the 

submission of a Form EOIR–26, Notice 

of Appeal from a Decision of an 

Immigration Judge. See generally 8 CFR 

1003.3, 1003.38. The Departments also 

propose to amend 8 CFR 1003.1(b) to 

make clear that a noncitizen may appeal 

the IJ’s decision to the BIA and that the 

review of these decisions is within the 

BIA’s jurisdiction. And, as with BIA 

decisions in removal proceedings, the 

noncitizen may seek judicial review 

before the appropriate circuit court of 

appeals. See INA 242, 8 U.S.C. 

1252(a)(1).59 Accordingly, noncitizens 

under the proposed regulations would 

have opportunities at four levels to have 

their claims for asylum, withholding of 

removal, or deferral of removal 

considered: First during a 

nonadversarial hearing before an asylum 

officer and then, if necessary, on review 

by an IJ, the BIA, and the appropriate 

circuit court of appeals. 

F. Severability 

Upon the completion of the notice 

and comment period provided for 

herein and subsequent issuance of a 

final rule, to the extent that any portion 

of the resulting final rule is stayed, 

enjoined, not implemented, or 

otherwise held invalid by a court, the 

Departments intend for all other parts of 

the final rule that are capable of 

operating in the absence of the specific 

portion that has been invalidated to 

remain in effect. Thus, even if a judicial 

decision invalidating a portion of the 

final rule results in a partial reversion 

to the current regulations or to the 

statutory language itself, the 

Departments intend that the rest of the 

final rule continue to operate in tandem 

with the reverted provisions, if at all 

possible. The Departments seek 

comment on whether (and which of) the 

regulatory provisions proposed herein 

should be severable from one another. 

G. Discretion/Phased Implementation 

The Departments believe that the 

proposed changes in this rule are 

necessary to establish a more 

streamlined and timely adjudication 

process for individuals who establish a 

credible fear of persecution or torture, 

while simultaneously ensuring 

fundamental fairness. The Departments 

emphasize, however, that this proposed 

rule would provide DHS the discretion 

to continue placing such individuals 

directly into section 240 removal 

proceedings before an IJ. This discretion 

may be exercised, for example, when a 

noncitizen with a positive credible fear 

determination may have committed 

significant criminal activity, have 

engaged in past acts of harm to others, 

or pose a public safety or national 

security threat. In some cases, DHS may 

determine that it is more appropriate for 

such noncitizens’ protection claims to 

be heard and considered in the 

adversarial process before an IJ. 

Additionally, if the Departments 

decide to issue a final rule 

implementing this new process during 

FY 2022, DHS would also need to 

continue to place many noncitizens 

receiving a positive credible fear 

determination into section 240 removal 

proceedings, while USCIS takes the 

steps needed to allow it to fully 

implement this new process for all 

cases. As discussed below in greater 

detail in the costs and benefits analysis 

of this proposal and its impacts on 

USCIS, as required under Executive 

Orders 12866 and 13563, USCIS has 

estimated that it will need to hire 

approximately 800 new employees and 

spend approximately $180 million to 

fully implement the proposed asylum 

officer hearing and adjudication process 

to handle approximately 75,000 cases 

annually. If the number of noncitizens 

placed into expedited removal and 

making successful fear claims increases 

significantly above that estimate, the 

cost to implement this proposed rule 

with staffing levels sufficient to handle 

the additional cases in a timely fashion 

would be substantially higher.60 Until 

USCIS is able to support full 

implementation, USCIS would need to 

continue to place a large percentage of 

individuals receiving a positive credible 

fear determination into section 240 

removal proceedings. This exercise of 

discretion is similar to and in line with 

DHS’s recognized prosecutorial 

discretion to issue an NTA to a covered 


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61See Immigrant Legal Res. Ctr. v. Wolf, 491 F. 

Supp. 3d 520, 526 (N.D. Cal. 2020) (enjoining the 

rule); Nw. Immigrant Rts. Project v. U.S. Citizenship 

& Immigr. Servs., 496 F. Supp. 3d 31, 41 (D.D.C. 

2020) (same). On January 29, 2021, USCIS 

published a Federal Register notice indicating that 

the agency was continuing to comply with these 

court orders. U.S. Citizenship and Immigration 

Services Fee Schedule and Changes to Certain 

Other Immigration Benefit Request Requirements, 

86 FR 7493, 7493 (Jan. 29, 2021). 

62 DHS lists a notice of proposed rulemaking for 

new fees on the Spring 2021 Unified Regulatory 

Agenda with a proposed publication date of 

November 2021. Office of Management and Budget, 

Spring 2021 Unified Regulatory Agenda (June 11, 

2021), https://www.reginfo.gov/public/do/eAgenda

ViewRule?pubId=202104&RIN=1615-AC68. 

noncitizen in expedited removal 

proceedings at any time after the 

covered citizen is referred to USCIS for 

a credible fear determination. See 

Matter of E-R-M- & L-R-M-, 25 I&N Dec. 

at 523. 

USCIS is primarily funded by 

immigration and naturalization benefit 

request fees charged to applicants and 

petitioners. Fees collected from 

individuals and entities filing 

immigration benefit requests are 

deposited into the Immigration 

Examinations Fee Account (‘‘IEFA’’). 

These fee collections fund the costs of 

adjudicating immigration benefit 

requests, including those provided 

without charge to refugee, asylum, and 

certain other applicants. The authority 

for establishing fees is found in section 

286(m) of the INA, 8 U.S.C. 1356(m), 

which authorizes DHS to charge fees for 

adjudication and naturalization services 

at a level to ‘‘ensure recovery of the full 

costs of providing all such services, 

including the costs of similar services 

provided without charge to asylum 

applicants or other immigrants.’’ 

The Chief Financial Officers Act of 

1990 (‘‘CFO Act’’), 31 U.S.C. 901–03, 

requires each agency’s chief financial 

officer to ‘‘review, on a biennial basis, 

the fees, royalties, rents, and other 

charges imposed by the agency for 

services and things of value it provides, 

and make recommendations on revising 

those charges to reflect costs incurred by 

it in providing those services and things 

of value.’’ 31 U.S.C. 902(a)(8). USCIS 

conducted a FY 2019 and 2020 IEFA fee 

review, as required under the CFO Act, 

and, as a result of that review, DHS 

published an updated final fee rule on 

August 3, 2020, with an effective date of 

October 2, 2020. See U.S. Citizenship 

and Immigration Services Fee Schedule 

and Changes to Certain Other 

Immigration Benefit Request 

Requirements, 85 FR 46788 (Aug. 3, 

2020). Implementation of that new fee 

rule was enjoined before its effective 

date, and USCIS has notified the public 

that it intends to continue to comply 

with the court injunctions.61 DHS 

intends to rescind and replace the 

changes made by the August 3, 2020 fee 

rule and establish new USCIS fees to 

recover USCIS operating costs.62

Current resource constraints would 

prevent the Departments from 

immediately achieving their ultimate 

goal of having the protection claims of 

nearly all individuals who receive a 

positive credible fear determination 

adjudicated by an asylum officer. The 

Departments believe that to fully 

implement the proposed rule, additional 

resources would be required. The 

Departments therefore propose that the 

new process be implemented in phases, 

as the necessary staffing and resources 

are put into place. 

A phased implementation would 

allow the Departments to begin 

employing the proposed process in an 

orderly and controlled manner and for 

a limited number of cases, giving USCIS 

the opportunity to work through 

operational challenges and ensure that 

each noncitizen placed into the process 

is given a full and fair opportunity to 

have any protection claim presented, 

heard, and properly adjudicated in full 

conformance with the law. Phased 

implementation would also have an 

immediately positive impact in 

reducing the number of individuals 

arriving at the southwest border who are 

placed into backlogged immigration 

court dockets, thus allowing the 

Departments to more quickly adjudicate 

some cases. 

Given limited agency resources, the 

Departments anticipate first 

implementing this new process for 

certain non-detained family units. The 

Departments believe this is necessary as 

USCIS capacity is currently insufficient 

to handle all family unit referrals under 

this new proposed process. The 

Departments also anticipate limiting 

referrals under the initial 

implementation of this proposed rule to 

families apprehended in certain 

southwest border sectors or stations, as 

well as based on the family unit’s final 

intended destination (e.g., if the family 

unit is within a predetermined distance 

from the potential interview location). 

As the USCIS Asylum Division gains 

resources and builds capacity, the 

Departments anticipate that additional 

family unit cases and then single adult 

cases could be considered for processing 

pursuant to this phased 

implementation. Under this approach, it 

is likely that single adult cases would 

not be handled under the new process 

until a later phase of implementation. 

The Departments are seeking comments 

on what might be the appropriate factors 

for DHS to consider when determining 

which individuals to place into the new 

process during this period prior to full 

implementation. 

Statutory and Regulatory Requirements 

H. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives. If a regulation is necessary, 

these Executive orders direct that, to the 

extent permitted by law, agencies 

ensure that the benefits of a regulation 

justify its costs and select the regulatory 

approach that maximizes net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. It explicitly 

draws attention to ‘‘equity, human 

dignity, fairness, and distributive 

impacts,’’ values that are difficult or 

impossible to quantify. All of these 

considerations are relevant here. This 

proposed rule has been designated as a 

‘‘significant regulatory action,’’ and it is 

economically significant since it meets 

the $100 million threshold under 

section 3(f)(1) of Executive Order 12866. 

Accordingly, the Office of Management 

and Budget (‘‘OMB’’) has reviewed this 

regulation. 

1. Summary 

This proposed rule would change and 

streamline the overall adjudicatory 

process for asylum applications arising 

out of the expedited removal process. 

By reducing undue delays in the system, 

and by providing a variety of procedural 

safeguards, the rule protects equity, 

human dignity, and fairness. 

A central feature of the regulation 

changes the respective roles of an IJ and 

an asylum officer during proceedings for 

consideration of asylum applications 

after a positive credible fear 

determination. Notably, IJs will retain 

their existing authority to review de 

novo the negative determinations made 

by asylum officers in a credible fear 

proceeding. In making credible fear 

determinations, asylum officers will 

return to evaluating whether there is a 

significant possibility that the 

noncitizen could establish eligibility for 

asylum, withholding of removal, or CAT 


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protection for possible referral to a full 

hearing of the claim and the noncitizen 

will still be able to seek review of that 

negative credible fear determination 

before the IJ. 

Asylum officers will take on a new 

role of fully adjudicating all protection 

claims made by some noncitizens who 

have received a positive credible fear 

determination, a role previously carried 

out only by IJs as part of a proceeding 

under section 240 of the INA. Under the 

rule, IJs will take on a new authority to 

review de novo an asylum officer’s 

denial of these claims. 

The population of individuals likely 

to be affected by this proposed rule’s 

provisions are individuals for whom 

USCIS completes a credible fear 

screening. The average annual number 

of credible fear screenings for FY 2016 

through 2020 completed by USCIS is 

broken out as 59,280 positive credible 

fear determinations and 12,083 negative 

credible fear determinations, for a total 

of 71,363 individuals with credible fear 

determinations. DHS expects that this 

population will be affected by the rule 

in a number of ways, which may vary 

from person to person depending on (1) 

whether the individual receives a 

positive credible fear determination, 

and (2) whether the individual’s asylum 

claim is granted or denied by the 

asylum officer. In addition, because of 

data constraints and conceptual and 

empirical challenges, we can provide 

only a partial monetization of the 

impacts to individuals. For example, 

asylum seekers who establish credible 

fear may benefit from having their 

asylum claims adjudicated potentially 

much sooner than they otherwise 

would. Those who are granted asylum 

sooner may have a possible path to 

citizenship in the United States. This is 

obviously a benefit in terms of human 

dignity and equity, but it is a benefit 

that is not readily monetized. Asylum 

seekers who establish credible fear may 

also benefit from filing cost savings and 

earlier labor force entry. DHS has 

estimated this impact on a per-person 

workday basis. 

As it relates to the Government and 

USCIS costs, the planned human 

resource and information-related 

expenditures required to implement this 

proposed rule are monetized as real 

resource costs. These estimates are 

developed along three population 

bounds, ranging from 75,000 to 300,000 

credible fear screenings to account for 

possible variations in future years. 

Furthermore, the possibility of parole 

for more individuals—applied on a 

case-by-case basis—could lower the cost 

to the Government per person 

processed. DHS has also estimated 

potential employment tax impacts 

germane to earlier labor force entry, 

likewise on a per-person workday basis. 

Such estimates made on a per-person 

basis reflect a range of wages that the 

impacted individuals could earn. The 

per-person, per-work day estimates are 

not extended to broader monetized 

impacts due to data constraints. 

An important caveat to the possible 

benefits to asylum applicants who 

establish a credible fear introduced 

above and discussed more thoroughly in 

the analysis is that it is expected to take 

time to implement this rule. Foremost, 

DHS expects the resourcing of this 

proposed rule to be implemented in a 

phased approach. Further, while upfront expenditures to support the 

changes from this proposed rule based 

on planning models are high, the 

logistical and operational requirements 

of this proposed rule may take time to 

fully implement. For instance, once 

USCIS meets its staffing requirements, 

time will be required for the new 

asylum staff to be trained for their 

positions, which may occur over several 

months. As a result, the benefits to 

applicants and the Government may not 

be realized immediately. 

To develop the monetized costs of the 

proposed rule, DHS relied on a low, 

midrange, and high population bound to 

reflect future uncertainty in the 

population. In addition, resources are 

partially phased in over FYs 2022 and 

2023, as a full phasing in of resources, 

potentially up to 2026, is not possible at 

this time. The average annualized cost 

of this proposed rule ranges from $180.4 

million to $1.0 billion, at a 3 percent 

discount rate, and from $179.5 million 

to $995.8 million, at a 7 percent 

discount rate. At a 3 percent discount 

rate the total 10-year costs could range 

from $1.5 billion to $8.6 billion, with a 

midpoint of $3.9 billion. At a 7 percent 

discount rate, the total 10-year costs 

could range from $1.3 billion to $7.0 

billion, with a midpoint of $3.2 billion. 

A summary of the potential impacts of 

this proposed rule are presented in 

Table 1 and are detailed more in the 

ensuing analysis. Where quantitative 

estimates are provided, they apply to 

the midpoint figure (applicable to the 

wage range or the population range). 

TABLE 1—SUMMARY OF THE POTENTIAL IMPACTS OF THIS PROPOSED RULE

Entities impacted Annual population estimate Potential impacts 

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

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

fear determinations. In recent 

years (see Table 3), approximately 83.1% of individuals 

screened have received a 

positive credible fear determination.

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

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

• Potential early labor earnings to asylum applicants who obtain an employment authorization 

document (‘‘EAD’’) of $225.44 per person per workday; this impact could potentially constitute 

a transfer from workers in the U.S. labor force to certain asylum applicants. We identified 

three factors that could drive this impact of early entry to the labor force: (i) More expeditious 

grants of asylum, thereby authorizing work incident to status; and (ii) a change in timing apropos to the ‘‘start’’ time for filing for work authorization—the ‘‘EAD-clock’’ duration is not impacted, but it ‘‘shifts’’ to an earlier starting point. On the other hand, some individuals who 

would have reached the ‘‘EAD-clock’’ duration for a pending asylum application and obtained 

work authorization under the current regulations may not obtain work authorization if their asylum claim is promptly denied. 

• Individuals could not have to wait lengthy times for a decision on their protection claims. This 

is a benefit in terms of equity, human dignity, and fairness. 

• Some individuals could benefit from de novo review by an IJ of the asylum officer’s denial of 

their asylum claim. 


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63OMB, Circular A–4 (2003), https://

www.whitehouse.gov/sites/whitehouse.gov/files/ 

omb/circulars/A4/a-4.pdf (last viewed June 1, 

2021). 

TABLE 1—SUMMARY OF THE POTENTIAL IMPACTS OF THIS PROPOSED RULE—Continued 

Entities impacted Annual population estimate Potential impacts 

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

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

fear determinations. In recent 

years (see Table 3), approximately 16.9% of individuals 

screened have received a 

negative credible fear determination.

• Beneficiaries of the new process may benefit in terms of human dignity if paroled from detention while awaiting their credible fear interview and determination. 

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

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

up-front and continuing expenditures. 

• It is reasonable to assume that there could be a reduction in Form I–765 filings due to more 

expeditious adjudication of asylum claims, but there could also be countervailing influences; 

hence, the volume of Form I–765 filings (writ large or for specific classes related to asylum) 

could decrease, remain the same, or increase—these reasons are elucidated in the analysis. 

• A net change in Form I–765 volumes overall could impact the incumbent volume of biometrics 

and biometrics services fees collected; however, based on the structure of the USCIS Application Support Center (‘‘ASC’’) biometrics processing contract, it would take a significant change 

in such volumes for a particular service district to generate marginal cost increases or savings 

per biometrics submission. 

EOIR .......................................... 555 current IJs as well as support staff and other personnel.• EOIR only reviews on appeal and will no longer adjudicate asylum claims raised in expedited 

removal in the first instance. 

• Allows EOIR to focus efforts on other priority work and reduce its substantial current backlog. 

• There could be non-budget related cost-savings if the actual time worked on a credible fear 

case decreases in the transfer of credible fear cases to USCIS. 

Support networks for asylum 

applicants who receive a 

positive credible fear determination.

Unknown ................................... • To the extent that some applicants may be able to earn income earlier than they otherwise 

could currently, burdens to the support network of the applicant may be lessened. This network could include public and private entities and family and personal friends, legal services 

providers and advisors, religious and charity organizations, State and local public institutions, 

educational providers, and non-governmental organizations (‘‘NGOs’’). 

Other .......................................... Unknown ................................... • There could be familiarization costs associated with this proposed rule; for example, if attorneys representing the asylum client reviewed the rule, the cost would be about $69.05 per 

hour. 

• There may be some labor market impacts as some asylum seekers that currently enter the 

labor market with a pending asylum application would no longer be entering the labor market 

under this proposed rule if they get a negative decision on their asylum claim sooner. Applicants with a positive credible fear determination may enter the labor market sooner under this 

proposed rule than they would currently. 

• Tax impacts could accrue to the earlier entry of some individuals into the labor market; we estimate employment tax impacts could be $34.49 per person on a workday basis. 

In addition to the impacts 

summarized above, and as required by 

OMB Circular A–4, Table 2 presents the 

prepared accounting statement showing 

the costs and benefits associated with 

this regulation.63

TABLE 2—OMB A–4 ACCOUNTING STATEMENT

[$ millions, 2020] 

Time Period: 2022–2031 

Category Primary 

estimate 

Minimum 

estimate 

Maximum 

estimate Source citation 

Benefits 

Monetized benefits ................................................................................ Not estimated Not estimated Not estimated 

Annualized quantified, but un-monetized, benefits ............................... N/A N/A N/A 

Unquantified benefits ............................................................................. Some individuals may benefit from filing cost-savings related to Forms I–589 and I–765. Early labor market 

entry would be beneficial in terms of labor earnings to 

the applicant, but also because it could reduce burdens on the applicants’ support networks. 

Regulatory Impact Analysis 

(‘‘RIA’’). 

Benefits driven by increased efficiency would enable 

some asylum-seeking individuals to move through the 

asylum process more expeditiously than through the 

current process, with timelines potentially decreasing 

significantly, thus promoting both human dignity and 

equity. Adjudicative efficiency gains and expanded parole could lead to individuals spending less time in detention, which would benefit the Government and the 

affected individuals. 


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TABLE 2—OMB A–4 ACCOUNTING STATEMENT—Continued 

[$ millions, 2020] 

Time Period: 2022–2031 

Category Primary 

estimate 

Minimum 

estimate 

Maximum 

estimate Source citation 

Another benefit is that EOIR would not see the cases in 

which USCIS grants asylum, which we estimate as at 

least a 15 percent reduction in their overall credible 

fear workload. This stands to mitigate the backlog of 

cases pending in immigration courts. Additionally, this 

benefit would extend to individuals granted or denied 

asylum faster than if they were to go through the current process with EOIR. 

Depending on the individual case circumstances, this 

proposed rule would mean that such noncitizens 

would likely not remain in the United States—for 

years, potentially—pending resolution of their claims, 

and those who qualify for asylum would be granted 

asylum several years earlier than they are under the 

present process. 

The anticipated operational efficiencies from this proposed rule may provide for prompt grant of relief or 

protection to qualifying noncitizens and ensure that 

those who do not qualify for relief or protection are removed more efficiently than they are under current 

rules. 

Costs 

Annualized monetized costs for 10-year period between 2021 and 

2030 (discount rate in parenthesis).

(3%) 

$453.8 $180.4 $1,002.4 

RIA. 

(7%) 

$451.2 179.5 995.8 

RIA. 

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

$338.86 per person. 

RIA. 

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

$377.32 per person. 

• Potential early labor earnings of $225.44 per person 

per workday. 

• The transfer of cases from EOIR to USCIS would 

allow resources at EOIR to be directed to other work, 

and there is a potential for cost-savings to be realized as 

it relates to credible fear processing specifically, if the 

average cost of work-time spent on cases by USCIS 

asylum officers would be lower than at EOIR currently. 

These would not be budgetary cost-savings, and USCIS 

has not made a one-to-one time- and cost-specific 

comparison between worktime actually spent on a case 

at EOIR and USCIS. 

Qualitative (unquantified) costs ............................................................. N/A 

Transfers 

Annualized transfers: ............................................................................. Potential labor earnings that would accrue to credible 

fear asylum applicants that enter the labor market earlier than they would currently. 

From whom to whom? ........................................................................... Potentially a distributional economic impact in the form of 

a transfer to asylum applicants who enter earlier than 

they would currently from others in the U.S. workforce. 

Miscellaneous analyses/category .......................................................... N/A RIA. 

Effects on State, local, or Tribal governments ...................................... N/A 

Effects on small businesses .................................................................. This proposed rule does not directly regulate small 

entities, but rather individuals. 

RFA. 

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

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

2. Background and Purpose of the Rule 

The purpose of this proposed rule is 

to address the rising number of 

apprehensions at or near the southwest 

border and the ability of the U.S. asylum 

system to fairly and efficiently handle 

protection claims made by those 

encountered. The proposed rule 

streamlines and simplifies the 

adjudication process for certain 

individuals who are encountered at or 

near the border, placed into expedited 


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I I 
46926 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 

66Calculation: Positive completions total 

296,400/total completions (296,400 + 60,414) = 

296,400/356,814 = 0.831 × 100 = 83.1 percent 

(rounded); negative completions total 60,414/total 

completions (356,814) = 0.169 × 100 = 16.9 percent 

(rounded). 

removal, and determined to have a 

credible fear of persecution or torture, 

with the aim of adjudicating 

applications for asylum, statutory 

withholding of removal, and CAT 

protection in a timelier fashion and in 

conformity with procedural protections 

against erroneous denial of relief or 

protection. The principal facet of the 

rule is to transfer the initial 

responsibility for adjudicating asylum, 

statutory withholding of removal, and 

CAT protection applications from IJs to 

USCIS asylum officers for individuals 

within expedited removal proceedings 

who receive a positive credible fear 

determination. 

The proposed rule also would 

broaden the circumstances in which 

individuals making a fear claim during 

the expedited removal process could be 

considered for parole on a case-by-case 

basis prior to a positive credible fear 

determination being made. For such 

individuals, parole could be granted as 

an exercise of discretion not only where 

required to meet a medical emergency 

or for a legitimate law enforcement 

objective, but also where detention is 

unavailable or impracticable. 

DHS intends to apply this proposed 

rule only to recently-arrived individuals 

who are subject to expedited removal— 

i.e., adults and families. The proposed 

rule does not apply to unaccompanied 

children, as they are statutorily exempt 

from being placed into expedited 

removal. It also does not apply to 

individuals already residing in the 

United States and whose presence in the 

United States is outside the coverage of 

noncitizens designated by the Secretary 

as subject to expedited removal. The 

proposed rule also does not apply to (1) 

stowaways or (2) noncitizens who are 

present in or arriving in the 

Commonwealth of the Northern Mariana 

Islands who are determined to have a 

credible fear. They will continue to be 

referred to asylum/withholding-only 

hearings before an IJ under 8 CFR 

208.2(c). Finally, it is not legally 

required that a noncitizen amenable to 

expedited removal after the effective 

date of the rule be placed in the nonadversarial review process described in 

this proposed rule. Rather, DHS 

generally, and USCIS in particular, 

retains discretion to issue an NTA to a 

covered noncitizen in expedited 

removal proceedings to instead place 

them in section 240 removal 

proceedings at any time after they are 

referred to USCIS for a credible fear 

determination. See Matter of E-R-M- & 

L-R-M-, 25 I&N Dec. at 523; see also 8 

CFR 1208.2(c). 

In this section we provide some data 

and information relevant to the ensuing 

discussion and analysis of the potential 

impacts of the rule. We first present 

USCIS data followed by EOIR data. 

Table 3 shows USCIS data for the Form 

I–589 and credible fear cases for the 

five-year span from FY 2016 through FY 

2020. 

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

DATA

[FY 2016–2020] 64

FY 

Form I–589 receipts Credible fear completions 

Total credible 

fear cases 65 Initial 

receipts 

Pending 

receipts 

Positive 

screen 

Negative 

screen 

All 

completions 

2016 ......................................................................... 115,888 194,986 73,081 9,697 82,778 94,048 

2017 ......................................................................... 142,760 289,835 60,566 8,245 68,811 79,842 

2018 ......................................................................... 106,041 319,202 74,677 9,659 84,336 99,035 

2019 ......................................................................... 96,861 349,158 75,252 16,679 91,931 102,204 

2020 ......................................................................... 93,134 386,014 12,824 16,134 28,958 30,839 

Total .................................................................. 554,684 N/A 296,400 60,414 356,814 405,968 

5-year Average .......................................... 110,937 307,839 59,280 12,083 71,363 81,194 

Source: USCIS Office of Performance and Quality (OPQ), and USCIS Refugee, Asylum, and International Operations (RAIO) Directorate, 

CLAIMS 3 database, Global received May 11, 2021. 64 In FY 2020, the credible fear filings are captured in the Form I–870, ‘‘Record of Determination/Credible Fear Worksheet.’’ As part of the 

credible fear screening adjudication, USCIS Asylum Officers prepare Form I–870, Record of Determination/Credible Fear Worksheet. This worksheet includes biographical information about the applicant, including the applicant’s name, date of birth, gender, country of birth, nationality, ethnicity, religion, language, and information about the applicant’s entry into the United States and place of detention. Additionally, Form I–870 collects sufficient information about the applicant’s marital status, spouse, and children to determine whether they may be included in the determination. Form I–870 also documents the interpreter identification number of the interpreter used during the credible fear interview and collects information about a relative or sponsor in the United States, including their relationship to the applicant and contact information. In previous years 

credible fear filings included the Form I–867, ‘‘Credible Fear Referral.’’ Prior to FY 2020, the USCIS Asylum Division electronically received information about credible fear determinations through referral documentation provided by U.S. Customs and Border Protection. The referral documentation includes a form containing information about the applicant: Form I–867, Credible Fear Referral. 65The credible fear total receipts are larger than the sum of positive and negative determinations because the latter apply to ‘‘completions,’’ referring to cases forwarded to EOIR, and thus exclude cases that were administratively closed. 

As can be seen from Table 3, the Form 

I–589 pending case number has grown 

steadily since 2016, and as of May 11, 

2021, was 400,200, which is well above 

the five-year average of 307,839. Over 

that same period, the majority, 83.1 

percent, of completed credible fear 

screenings were positive, while 16.9 

percent were negative.66

In addition to the credible fear case 

data presented in Table 3, USCIS data 

and analysis can provide some insight 

concerning how long it has taken for the 

credible fear screening process to be 

completed. As detailed in this preamble, 

while this proposed rule’s primary 

concern is the length of time before 

incoming asylum claims are expected to 

be adjudicated by EOIR, changes to 

USCIS processes enabled by this 

proposed rule (including, for example, 

improved systems for conducting 

credible fear interviews for individuals 

who are not in detention facilities) are 

also expected to reduce processing 

times for credible fear cases. Table 4 


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67Calculations: For 2016, 290.6 average days/23.3 

average days = 12.5; for 2021, 1174.0 average days/ 

25.6 average days = 39.4. 

68Calculation: [1¥(955.3 days/1174.0 days)] = 

.186, rounded to .19. 

provides credible fear processing 

durations at USCIS. 

TABLE 4—CREDIBLE FEAR TIME DURATIONS FOR DETAINED AND NON-DETAINED CASES

[In average and median days, FY 2016–2021] 

FY Screen 

Detained Non-detained 

Average Median Average Median 

2016 .................................................. Positive ............................................. 23.3 13 290.6 163.0 

Negative ........................................... 34 26 197.1 80.5 

2017 .................................................. Positive ............................................. 23.3 13 570.1 407.0 

Negative ........................................... 34.2 25 496.1 354.0 

2018 .................................................. Positive ............................................. 22.6 16 816.2 671.0 

Negative ........................................... 32.3 25 811.7 668.0 

2019 .................................................. Positive ............................................. 35.6 24 1230.9 1082.0 

Negative ........................................... 44.7 33 1067.3 959.0 

2020 .................................................. Positive ............................................. 37.2 20 1252.7 1065.0 

Negative ........................................... 30.3 16 1311.2 1247.0 

2021 .................................................. Positive ............................................. 25.6 15 955.3 919.0 

Negative ........................................... 29.8 17 1174.0 1109.0 

Source: Data and analysis provided by USCIS, RAIO Directorate, SAS PME and data-bricks databases, received May 11, 2021. 

* FY 2021 includes partial fiscal year data as of May 2021. 

Table 4 reports the ‘‘durations,’’ 

defined as the elapsed days from date of 

apprehension to forwarding of the 

credible fear screening process at 

USCIS, in both averages and medians. 

USCIS has included the most recent 

figure, which is applicable to May 11, 

2021. The total time for cases from 

apprehension to adjudication by EOIR 

can be found by summing the times in 

Table 4 with the times in Table 6, 

below. 

The data in Table 4 are not utilized 

to develop quantitative impacts, but 

rather are intended to build context and 

situational awareness. There are several 

key observations from the information 

presented. Foremost, there is a 

substantial difference between durations 

for the detained and the non-detained 

populations. The existence of a gap is 

expected because USCIS can interface 

with detained individuals rapidly. 

However, the gap has grown over time; 

in 2016 the duration for positivescreened processing was 12.5 times 

greater, but by 2021 it had grown to a 

factor of nearly 40.67 Second, and 

relatedly, there was a substantial 

duration rise through 2019 for both 

detained and non-detained screenings, 

although there has been a recent 

pullback. Furthermore, the duration for 

negative screenings is lower across the 

board than for positive screenings—as of 

the most recent data point the duration 

was about 19 percent lower for negative 

screened cases.68 It is also seen that the 

2021 average durations for detained 

cases are relatively close to 2016–2018 

levels, with this series witnessing a 

spike in 2019. 

Since some of the EOIR data are 

presented in medians, we note that the 

median durations are lower than the 

means for both screened types. This 

indicates that a small number of cases 

take an exceptionally long time to 

resolve, resulting in large outlier data 

points that skew the mean upwards. It 

is noted that for non-detained cases, the 

gap between median and mean duration 

is relatively consistent up to 2021, but 

the mean and median converge toward 

the end of the period; this feature of the 

data could indicate that fewer outlier 

durations were represented in the data. 

It is possible that the proposed rule 

may impact employment authorization 

applications and approvals in terms of 

volume and timing. While we cannot 

predict the net change in filings for the 

Form I–765 categories, we present data 

on initial filings and approvals for three 

asylum-related categories (Table 5). As a 

result of the rule, there could be 

substitutions in Form I–765 categories 

from the (c)(8), Applicant for Asylum/ 

Pending Asylum, into the (a)(5), Granted 

Asylum Under Section 208, and (a)(10) 

Granted Withholding of Removal/243 

(H) categories, in Table 5. 

TABLE 5—USCIS FORM I–765 APPLICATION FOR EMPLOYMENT AUTHORIZATION INITIAL RECEIPTS AND APPROVALS

RELATED TO ASYLEE CATEGORIES

[FY 2016–2020] 

FY 

EAD category (a)(5) 

Granted Asylum Under 

Section 208 

EAD category (c)(8) 

Applicant for 

Asylum/Pending 

Asylum 

EAD category (a)(10) 

Granted Withholding of 

Removal/243 (H) 

Initial 

receipts Approvals Initial 

receipts Approvals 

Initial 

receipts Approvals 

2016 ................................................................................. 29,887 27,139 169,970 152,269 2,008 1,621 

2017 ................................................................................. 32,673 29,648 261,782 234,053 1,936 1,076 

2018 ................................................................................. 38,743 39,598 262,965 246,525 1,733 1,556 

2019 ................................................................................. 47,761 41,288 216,038 177,520 2,402 2,101 


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TABLE 5—USCIS FORM I–765 APPLICATION FOR EMPLOYMENT AUTHORIZATION INITIAL RECEIPTS AND APPROVALS

RELATED TO ASYLEE CATEGORIES—Continued 

[FY 2016–2020] 

FY 

EAD category (a)(5) 

Granted Asylum Under 

Section 208 

EAD category (c)(8) 

Applicant for 

Asylum/Pending 

Asylum 

EAD category (a)(10) 

Granted Withholding of 

Removal/243 (H) 

Initial 

receipts Approvals Initial 

receipts Approvals 

Initial 

receipts Approvals 

2020 ................................................................................. 31,931 36,334 233,864 183,820 3,318 2,554 

5-year total ................................................................ 180,995 174,007 1,144,619 994,187 11,397 8,908 

Average ............................................................. 36,199 34,801 228,924 198,837 2,279 1,782 

Source: USCIS, Office of Performance and Quality (OPQ), CLAIMS 3, data obtained May 11, 2021, https://www.uscis.gov/sites/default/files/ 

document/reports/I-765_Application_for_Employment_FY03-20.pdf (last visited August 9, 2021). 

Across the three relevant employment 

authorization categories, the total of the 

averages is 267,402 initial EADs, with a 

total of 235,420 approved EADs. 

Having presented information and 

data applicable to USCIS specifically, 

we now turn to EOIR data and 

information. Table 6 presents average 

and median processing times for EOIR 

to complete credible fear cases 

originating from the credible fear 

screening process, positive and 

negative, and detained and nondetained (the processing time represents 

that time between when a case is lodged 

in EOIR systems and a final decision). 

Note that the ‘‘initial case completions’’ 

are not directly comparable to USCIS 

completions (Table 3) in terms of annual 

volumes for two primary reasons. First, 

there can be timing differences in terms 

of when a credible fear case is sent to 

EOIR and when it is lodged in their 

processing systems. Second, not all 

individuals determined to have a 

credible fear follow up with their case 

with EOIR, and some cases filed are 

administratively closed. Therefore, as a 

general rule, case completions by EOIR 

would be necessarily lower than 

‘‘completions’’ at USCIS. 

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

FY Average 

processing time 

Median 

processing time 

Initial case 

completions 

6A. Average and Median Processing Times (in Days) for Form I–862 Initial Case Completions With a Credible Fear Origin 

2016 ..................................................................................................................................... 413 214 16,794 

2017 ..................................................................................................................................... 447 252 26,531 

2018 ..................................................................................................................................... 648 512 33,634 

2019 ..................................................................................................................................... 669 455 55,404 

2020 ..................................................................................................................................... 712 502 33,517 

2021–March 31, 2021 (years) * ........................................................................................... 1,078 (2.95) 857 (2.35) 6,646 

6B. Average and Median Processing Times (in Days) for Form I–862 Initial Case Completions With a Credible Fear Origin and Only an 

Application for Asylum, Statutory Withholding of Removal, and Withholding and Deferral of Removal Under the CAT 

2016 ..................................................................................................................................... 514 300 7,519 

2017 ..................................................................................................................................... 551 378 13,463 

2018 ..................................................................................................................................... 787 690 19,293 

2019 ..................................................................................................................................... 822 792 30,052 

2020 ..................................................................................................................................... 828 678 21,058 

2021–March 31, 2021 (years) * ........................................................................................... 1,283 (3.52) 1,316 (3.61) 3,730 

Source: EOIR, Planning, Analysis, and Statistics Division (‘‘PASD’’), data obtained April 19, 2021. 

* Current through March 31, 2021. 

The FY 2021 data point reflects data 

through the start of FY 2021 to March 

31, 2021, and we have included the 

current processing times in years for 

situational awareness. As Table 6 

shows, there was an across-the-board 

jump in processing times in 2018, 

followed by a leveling off until 2021, 

when the processing times surged again. 

3. Population 

The population expected to be 

affected by this rule is the total number 

of credible fear completions processed 

annually by USCIS (71,363, see Table 3), 

split between an average of 59,280 

positive-screen cases and 12,083 

negative-screen cases. This can be 

considered the maximum, 

‘‘encompassing,’’ population that could 

be impacted. However, we take into 

consideration larger populations to 

account for variations and uncertainty 

in the future population. 

4. Impacts of the Rule 

This section is divided into three 

modules. The first (A) focuses on 

impacts to asylum seekers, presented on 

a per-person basis. The second (B) 

discusses costs to the Federal 

Government, and the third (C) discusses 

other, possible impacts, including 

benefits. 


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69See Instructions for Form I–589, Application 

for Asylum and for Withholding of Removal, OMB 

No.1615–0067 (expires July 31, 2022), https://

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

i-589instr.pdf (last visited May 12, 2021). 

70Ernie Tedeschi, Americans Are Seeing Highest 

Minimum Wage in History (Without Federal Help), 

The New York Times (Apr. 24, 2019), https://

www.nytimes.com/2019/04/24/upshot/whyamerica-may-already-have-its-highest-minimumwage.html. We note that with the wage level dated 

to 2019, we do not make an inflationary adjustment 

because the Federal minimum wage has not 

changed since then. 

71For the average wage for all occupations, the 

Departments rely on statistics of the U.S. 

Department of Labor. See U.S. Dep’t of Labor, 

Bureau of Labor Statistics (‘‘BLS’’), May 2020 

National Occupational Employment and Wage 

Estimates, https://www.bls.gov/oes/2020/may/oes_

nat.htm#00-0000 (last visited May 13, 2021). 

72The benefits-to-wage multiplier is calculated as 

follows: (Total Employee Compensation per hour)/ 

(Wages and Salaries per hour) ($38.60 Total 

Employee Compensation per hour)/($26.53 Wages 

and Salaries per hour) = 1.454957 = 1.45 (rounded). 

See U.S. Department of Labor, BLS, Economic News 

Release, Employer Cost for Employee Compensation 

(December 2020), Table 1. Employer Costs for 

Employee Compensation by Ownership (Dec. 2020), 

https://www.bls.gov/news.release/archives/ecec_

03182021.pdf. (last visited Mar. 31, 2021). 

73The Federal minimum wage is $7.25 hourly, 

which burdened at 1.45 yields $10.51. It follows 

that: (($17.11 wage¥$10.51 wage)/$10.51)) wage = 

0.628, which rounded and multiplied by 100 = 62.8 

percent. 

74Calculation: Average I–589 biometrics 

collections 296,072/110,937 average initial I–589 

filings = 2.67 (rounded). Data were obtained from 

the USCIS Immigration Records and Identity 

Services (‘‘IRIS’’) Directorate, via the CPMS 

database (data obtained May 7, 2021). 

75The U.S. Department of State estimates an 

average cost of $10 per passport photo in their 

supporting statement for their Paperwork Reduction 

Act (PRA) submission for the Application for a U.S. 

Passport, OMB #1405–0004 (DS–11) (Feb. 8, 2011), 

http://www.reginfo.gov/public/do/ 

PRAViewDocument?ref_nbr=201102-1405-001 (see 

question #13 of the Supporting Statement). 

76Calculation: $10 per photo cost × 2.67 photos 

per I–589 application = $26.70. 

77Calculation: $205.32 + $26.70 = $232.02; 

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

$497.70. 

i. Impacts to the Credible Fear Asylum 

Population 

Under the change in procedures of 

this proposed rule, asylum applicants 

who have established a credible fear of 

persecution or torture would not be 

required to file Form I–589 with USCIS. 

Individuals in this population could 

accrue cost-savings relevant to this 

change. There is no filing fee for Form 

I–589, and the time burden is currently 

estimated at 12.0 hours per response, 

including the time for reviewing 

instructions, and completing and 

submitting the form.69 With regard to 

cost-savings, DHS believes the 

minimum wage is appropriate to rely on 

as a lower bound, as the applicants 

would be new to the U.S. labor market. 

The Federal minimum wage is $7.25 per 

hour; however, in this proposed rule, 

we rely on the ‘‘effective’’ minimum 

wage of $11.80. As The New York Times 

reported, ‘‘[t]wenty-nine states and the 

District of Columbia have state-level 

minimum hourly wages higher than the 

federal [minimum wage],’’ as do many 

city and county governments. This New 

York Times report estimates that ‘‘the 

effective minimum wage in the United 

States [was] $11.80 an hour in 2019.’’ 70

Therefore, USCIS uses the ‘‘effective’’ 

minimum hourly wage rate of $11.80 to 

estimate a lower bound. USCIS uses a 

national average wage rate across 

occupations of $27.07 71 to take into 

consideration the variance in average 

wages across States as an upper bound. 

DHS accounts for worker benefits by 

calculating a benefits-to-wage multiplier 

using the most recent Bureau of Labor 

Statistics (‘‘BLS’’) report detailing the 

average employer costs for employee 

compensation for all civilian workers in 

major occupational groups and 

industries. DHS relies on a benefits-towage multiplier of 1.45 and, therefore, 

is able to estimate the full opportunity 

cost per applicant, including employee 

wages and salaries and the full cost of 

benefits such as paid leave, insurance, 

retirement, and other benefits.72 The 

total rate of compensation for the 

effective minimum hourly wage is 

$17.11 ($11.80 × benefits burden of 

1.45), which is 62.8 percent higher than 

the Federal minimum wage.73 The total 

rate of compensation for the average 

wage is $39.25 ($27.07 × benefits burden 

of 1.45). 

For applicants who have established a 

credible fear, the opportunity cost of 12 

hours to file Form I–589 at the lower 

and upper bound wage rates is $205.32 

(12 hours × $17.11) and $471.00 (12 

hours × $39.25), respectively, with a 

midrange average of $338.16. In 

addition, form instructions require a 

passport-style photograph for each 

family member associated with the 

Form I–589 filing. The Departments 

obtain an estimate of the number of 

additional family members applicable 

via data on biometrics collections for 

the Form I–589. Biometrics information 

is collected on every individual 

associated with a Form I–589 filing, and 

the tracking of collections is captured in 

the USCIS Customer Profile 

Management System (‘‘CPMS’’) 

database. A query of this system reveals 

that for the five-year period of FY 2016 

through FY 2020, an average of 296,072 

biometrics collections accrued for the 

Form I–589 annually. Dividing this 

figure by the same five-year period 

average of 110,937 initial filings (Table 

3) yields a multiplier of 2.67 

(rounded).74 Under the supposition that 

each photo incurs costs to applicants of 

$10,75 there could be $26.70 in 

additional cost-savings at either wage 

bound.76 The resulting cost savings per 

applicant from no longer having to file 

Form I–589 could range from $232.02 to 

$497.70, with a midrange of $364.86.77

Though these applicants would no 

longer be required to file Form I–589, 

DHS recognizes that applicants would 

likely expend some time and effort to 

prepare for their asylum interviews and 

provide documentation for their asylum 

claim under this rule as well. DHS does 

not know exactly how long, on average, 

an individual may spend preparing for 

their credible fear interviews under the 

proposed rule, and how that amount of 

time and effort would compare to the 

time individuals currently spend 

preparing for the credible fear interview. 

If the increased time were substantial— 

i.e., above and beyond that currently 

earmarked for the asylum application 

process—lower cost-savings could 

result. 

Additionally, asylum applicants with 

a positive credible fear determination 

would still submit biometrics to USCIS. 

Hence, for applicants that file a Form I– 

589, photos would be collected via this 

biometrics process for the credible fear 

determination as well as for the Form I– 

589 application. Under this proposed 

rule, there would be a change in process 

such that applicants would submit 

biometrics at an asylum office as 

opposed to an USCIS Application 

Support Center (‘‘ASC’’). As a result, 

there could be time- and travelassociated impacts driven by this 

change, but because the requirements 

remain largely the same, we do not 

attempt to quantify them. Specifically, 

the average distance and travel time is 

likely to differ between asylum offices 

and ASCs, thereby possibly impacting 

the direct travel (mileage) cost as well 

as the travel-time related opportunity 

costs. However, the Departments 

assume these differences would be 

negligible, and therefore we do not 

quantify them. 

Under the proposed rule, asylum 

applicants who established a credible 

fear would be able to file for work 

authorization via the Form I–765, 

Application for Employment 

Authorization (‘‘EAD’’), while their 

asylum application is being adjudicated. 

We cannot say, however, whether the 

volume of Form I–765 EADs filed would 

increase or decrease in upcoming years 

due to this proposed rule. Currently, 

asylum applicants can file for an EAD 

under the asylum (c)(8) category while 


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78A preliminary injunction in Casa de Maryland, 

Inc. v. Wolf, 486 F. Supp. 3d 928, 935 (D. Md. 

2020), currently exempts members of certain 

organizations from this 365-day waiting period. 

Such members are subject to the 180-day Asylum 

EAD Clock. 

79See Instructions for Form I–765, Application 

for Employment Authorization, OMB No. 1615– 

0040 (expires July 31, 2022), https://www.uscis.gov/ 

i-765 (last visited May 12, 2021). 

80USCIS collects biometrics for Form I–765 (c)(8) 

submissions, but a preliminary injunction in Casa 

de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928, 935 

(D. Md. 2020), currently exempts members of 

certain organizations from this biometrics 

collection. 

81See Provisional Unlawful Presence Waivers of 

Inadmissibility for Certain Immediate Relatives, 78 

FR 535 (Jan. 3, 2013). 

82 GSA mileage rate of $0.56. See GSA, Privately 

Owned Vehicle Mileage Reimbursement Rates 

(effective January 1, 2021), https://www.gsa.gov/ 

travel/plan-book/transportation-airfare-rates-povrates/privately-owned-vehicle-pov-mileagereimbursement-rates (last visited Aug. 4, 2021). 

83See Instructions for Form I–765, Application 

for Employment Authorization, OMB No. 1615– 

0040 (expires July 31, 2022), https://www.uscis.gov/ 

i-765 (last visited May 12, 2021). 

84Calculations: Total time burden 3.67 hours × 

total rate of compensation for the effective wage 

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

total rate of compensation for the average wage 

$39.25 = $144.05. 

85Calculations: Opportunity cost of time, 

effective wage $62.79 + travel cost $28 = $90.79; 

Opportunity cost of time, average wage $144.05 + 

travel cost $28 = $172.05. 

86Calculations: $192.07 + biometrics services fee 

$85 = $277.07; $378.49 + biometrics services fee 

$85 = $463.49. While we have the overall count for 

biometrics for the period from October 1, 2020 

through May 1, 2021, we do not know how many 

biometrics service fees were collected with these 

biometrics submissions; the fee data are retained by 

the USCIS Office of the Chief Financial Officer 

(‘‘OCFO’’), but the Form I–765 fee payments are not 

captured by eligibility class. 

87There is a scenario that the Departments 

account for, though it is not likely to occur often. 

Currently, an asylum applicant might file for an 

EAD and have the EAD approved prior to the grant 

of asylum. It is possible that, under this proposed 

rule, asylum may be approved more expeditiously. 

At the time of the asylum grant, the individual will 

automatically receive a category (a)(5) EAD based 

on the grant of asylum; if they did file for an EAD, 

technically the filing costs associated with the EAD 

would be accounted for as sunk costs, since the 

(c)(8) EAD does not actually provide any benefit 

over the (a)(5) EAD. This would only apply if the 

proposed rule itself was responsible for the more 

expeditious asylum grant, and again, we only 

account for this possibility since it cannot be ruled 

out. 

their asylum application is pending. 

Such applications are subject to a 365- 

day waiting period that commences 

when their completed Form I–589 is 

filed. Asylum applicants who establish 

a credible fear would still be subject to 

the 365-day waiting period.78

Applicants would still be able to file for 

their EADs under the (c)(8) category. We 

analyze the impacts regarding the EAD 

filing in two steps, explaining first why 

filing volumes might decline and related 

impacts, and then why countervailing 

factors might mitigate such a decline. 

A result of this proposed rule is that 

asylum applications for some 

individuals pursuant to this proposed 

rule could be granted asylum earlier 

than they would be under current 

conditions. Since an asylum approval 

grants work authorization incident to 

status and USCIS automatically 

provides an asylum-granted EAD ((a)(5)) 

after a grant of asylum by USCIS, some 

applicants may choose not to file for an 

EAD based on the pending asylum 

application under the expectation that 

asylum would be granted earlier than 

the EAD approval. This could result in 

cost savings to some applicants. 

There is currently no filing fee for the 

initial (c)(8) EAD Form I–765 

application, and the time burden is 

currently estimated at 4.75 hours, which 

includes the time associated with 

submitting two passport-style photos 

along with the application.79 As stated 

earlier, the Department of State 

estimates that each passport photo costs 

about $10 each. Submitting two 

passport photos resulting in an 

estimated cost of $20 per Form I–765 

application. 

Because the (c)(8) EAD does not 

include or require, at the initial or 

renewal stage, any data on employment, 

and since it does not involve an 

associated labor condition application, 

we have no information on wages, 

occupations, industries, or businesses 

that may employ such workers. Hence, 

we continue to rely on the wage bounds 

(effective minimum and national 

average) developed earlier. At the wage 

bounds relied upon, the opportunity 

cost-savings are $81.27 (4.75 hours × 

$17.11 per hour), and $186.44 (4.75 

hours × $39.25). When the $20 photo 

cost is included, the cost-savings would 

be $101.27 and $206.44 per applicant, 

respectively. However, some might 

choose to file for an EAD after being 

granted asylum, or even if they expect 

asylum to be granted earlier than the 

EAD approval, they may want to have 

documentation that reflects that they are 

employment authorized. 

In the discussion of the possible file 

volume decline for the Form I–589, 

above, we noted that applicants and 

family members would continue to 

submit biometrics as part of their 

asylum claim, and that, as a result, there 

would not be costs or cost-savings 

changes germane to biometrics. For the 

Form I–765(c)(8) category, USCIS 

started collecting biometrics, and the 

associated $85 biometrics service fee, in 

October 2020.80

The submission of biometrics 

involves travel to an ASC for the 

biometric services appointment. In past 

rulemakings, DHS estimated that the 

average round-trip distance to an ASC is 

50 miles, and that the average travel 

time for the trip is 2.5 hours.81 The cost 

of travel also includes a mileage charge 

based on the estimated 50-mile round 

trip at the 2021 General Services 

Administration (‘‘GSA’’) rate of $0.56 

per mile.82 Because an individual would 

spend an average of 1 hour and 10 

minutes (1.17 hours) at an ASC to 

submit biometrics,83 summing the ASC 

time and travel time yields 3.67 hours. 

At the low- and high-wage bounds, the 

opportunity costs of time are $62.79 and 

$144.05.84 The travel cost is $28, which 

is the per mileage reimbursement rate of 

0.56 multiplied by 50-mile travel 

distance. Summing the time-related and 

travel costs generates a per-person 

biometrics submission cost of $90.79, at 

the low-wage bound and $172.05 at the 

high-wage bound.85 While the 

biometrics collection includes the $85 

service fee, fee waivers and exemptions 

are granted on a case-by-case basis 

(across all forms) that are immaterial to 

this proposed rule. Accordingly, not all 

individuals pay the fee. When the 

opportunity costs of time for filing Form 

I–765 ($101.27 and $206.44, 

respectively) are added to the 

opportunity costs of time and travel for 

biometrics submissions ($90.79 and 

172.05), the total opportunity cost of 

time to file Form I–765 and submitting 

biometrics are $192.07 and $378.49, 

respectively. For those who pay the 

biometrics service fee, the total costs are 

$277.07 and $463.49, respectively, with 

a midpoint of $370.28.86 These figures 

represent the maximum per-person cost 

savings for those who choose not to file 

for an EAD.87

Having developed the cost-savings for 

applicants who do not file for an EAD, 

we now turn to countervailing factors 

against the potential decline in Form I– 

765 volumes. First, applicants will 

benefit from a timing change relevant to 

the EAD waiting period as it relates to 

the ‘‘filing date’’ of their asylum 

application that will allow an EAD to be 

filed earlier than it could be currently. 

USCIS allows for an EAD to be filed 

under 8 CFR 208.7 when an asylum 

application is pending and certain other 

conditions are met. Here, an asylum 

application would be pending when the 

credible fear determination is served on 

the individual as opposed to current 

practice under which the asylum 

application is lodged in immigration 

court. This change in timing could 

allow some EADs to be approved earlier 

for those who file for an EAD with a 

pending asylum application. In this 


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88Transfer payments are monetary payments 

from one group to another that do not affect total 

resources available to society. See OMB, Circular 

A–4 at 14, 38 (Sept. 17, 2003), https://

www.whitehouse.gov/sites/whitehouse.gov/files/ 

omb/circulars/A4/a-4.pdf (further discussion of 

transfer payments and distributional effects). 

sense, the EAD remains the same in 

duration, but the starting point shifts to 

an earlier position for asylum applicants 

who will file for an initial EAD under 

the (c)(8) category. 

DHS would begin to consider for 

parole on a case-by-case basis all 

noncitizens who have been referred to 

USCIS for a credible fear screening 

under the slightly expanded set of 

factors provided for in the proposed rule 

during the relatively short period 

between being referred to USCIS for a 

credible fear screening interview and 

the issuance of a credible fear 

determination. A parole grant does not 

constitute work authorization, however, 

and currently there are two Form I–765 

classes, (a)(5), ‘‘Granted Asylum Sec. 

208,’’ and (a)(10), ‘‘Granted Withholding 

of Removal/243 (H),’’ that could apply 

to applicants filing for asylum pursuant 

to the parole process under this 

proposed rule. In the past, some 

parolees under these categories have 

been able to obtain EADs sooner than 

they would if they were explicitly 

subject to the filing clock that applies to 

a pending Form I–589 application. 

Given the two changes discussed 

above related to the EAD filings—(i) the 

change in timing under when an EAD 

can be filed; and (ii) the somewhat 

expanded set of circumstances under 

which certain credible fear cases may be 

considered for parole—some applicants 

may file for an EAD, even under the 

expectation that their asylum could be 

granted earlier, if they expect to receive 

an (a)(5) asylum granted EAD even 

sooner. In this sense, the potential for 

more rapid approvals of an EAD claim 

may be expected to provide a net 

pecuniary benefit even in light of a more 

expeditious asylum claim. Coupled with 

the expectation that some individuals 

may seek an EAD for the non-pecuniary 

benefit associated with its documentary 

value, we cannot determine if these 

countervailing influences might limit, or 

even completely absorb, any reductions 

in EAD filing for credible fear asylum 

applicants. 

Regardless of whether, under the 

proposed rule, it is the more expeditious 

asylum or EAD approval that is binding 

for purposes of work authorization, 

individuals who enter the labor force 

earlier are able to earn income earlier. 

The assessments of possible impacts 

rely on the implicit assumption that 

credible fear asylum seekers who 

receive employment authorization will 

enter and be embedded in the U.S. labor 

force at the time of the proposed rule 

being effective. This assumption is 

justifiable for those whose labor force 

entry was effectuated by the EAD 

approval, as opposed to the grant of 

asylum. We believe this assumption is 

justifiable because applicants would 

generally not have expended the direct 

and opportunity costs of applying for an 

EAD if they did not expect to recoup an 

economic benefit. We also take the extra 

step of assuming these entrants to the 

labor force are employed. It is possible 

that some applicants who are eventually 

denied asylum are currently able to 

obtain work authorizations—approved 

while their asylum application was 

pending. We do not know what the 

annual or current scale of this 

population is, but it is an expected 

consequence of this proposed rule that 

such individuals would not obtain work 

authorizations in the future. 

The impact is attributable to the 

difference in days between when 

asylum would be granted under the 

proposed rule and the current baseline. 

USCIS describes this distributional 

impact in more detail. Since a typical 

workweek is 5 days, the total day 

difference (‘‘D’’) can be scaled by 0.714 

(5 days/7 days) and then multiplied by 

the average wage (‘‘W’’) and the number 

of hours in a typical work day (8) to 

obtain the impact, as in the formula: D 

× 0.714 × W × 8. In terms of each actual 

workday, the daily distributional impact 

at the wage bounds are $136.88 ($17.11 

× 8 hours) and $314.00 ($39.25 × 8 

hours), respectively, on a per-person 

basis, with a midrange average of 

$225.44. 

USCIS cannot expand the per-person 

per-day quantified impacts to a broader 

monetized estimate. Foremost, while 

Table 5 provides filing volumes for the 

asylum relevant EADs, we cannot 

determine how many individuals within 

this population would be affected. In 

addition, we cannot determine what the 

average day difference would be for any 

individual that could be impacted. To 

quantify the day difference, the 

Departments would need to 

simultaneously analyze the current and 

future interaction between the asylum 

grant and EAD approvals. Doing so for 

the current system is conceptually 

possible with a significant devotion of 

time and resources, but it is not possible 

to conduct a similar analysis for future 

cases without relying on a number of 

assumptions that may not be tractable. 

As a result, we cannot extend the perperson cost (in terms of earnings) basis 

to an aggregate monetized cost, even if 

USCIS knew either the population 

impacted or the day-difference average 

because an estimate of the costs would 

require both data points. The impact 

accruing to labor earnings developed 

above has the potential to include both 

distributional effects (which are 

transfers) and indirect benefits to 

employers.88 The distributional impacts 

would accrue to asylum applicants who 

enter the U.S. labor force earlier than 

under current regulations, in the form of 

increased compensation (wages and 

benefits). A portion of this 

compensation gain might be transferred 

to asylum applicants from others that 

are currently in the U.S. labor force or 

eligible to work lawfully. Alternatively, 

employers that need workers in the U.S. 

labor market may benefit from those 

asylum applicants that receive their 

employment authorization earlier as a 

result of the proposed rule, gaining 

productivity and potential profits that 

the asylum applicant’s earlier start 

would provide. Companies may also 

benefit by not incurring opportunity 

costs associated with the next-best 

alternative to the immediate labor the 

asylum applicant would provide, such 

as having to pay existing workers to 

work overtime hours, if in fact it was 

necessary or they were requested to 

work overtime. 

We do not know what this next-best 

alternative may be for those companies. 

As a result, the Departments do not 

know the portion of overall impacts of 

this proposed rule that are transfers or 

benefits, but the Departments estimate 

the maximum monetized impact of this 

proposed rule in terms of a daily, perperson basis compensation. The extent 

to which the portion of impacts would 

accrue to benefits or transfers is difficult 

to discern and would depend on 

multiple labor market factors. However, 

we think it is reasonable to posit that 

the portion of impacts attributable to 

transfers would mainly be benefits, for 

the following reason: If there are both 

workers who obtain employment 

authorization under this rule and other 

workers who are available for a specific 

position, an employer would be 

expected to consider any two candidates 

to be substitutable to a high degree. 

There is an important caveat, however. 

There could be costs involved in hiring 

asylum seekers that are not captured in 

this discussion. As the U.S. economy 

recovers from the effects of the COVID– 

19 pandemic, there may be structural 

changes to the general labor market and 

to specific job positions that could 

impact the next-best alternatives that 

employers face. The Departments 

cannot speculate on how such changes 

in relation to the earlier labor market 

entry of some asylum applicants could 


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89See Internal Revenue Service Publication 15, 

Circular E, Employer’s Tax Guide for Specific 

Information on Employment Tax Rates (Feb. 4, 

2021), https://www.irs.gov/pub/irs-pdf/p15.pdf; see 

also Market Watch, More Than 44 Percent of 

Americans Pay No Federal Income Tax (Sept. 16, 

2018), https://www.marketwatch.com/story/81- 

million-americans-wont-pay-any-federal-incometaxes-this-year-heres-why-2018-04-16. 

90Calculation: (6.2 percent Social Security + 1.45 

percent Medicare) × 2 employee and employer 

losses = 15.3 percent total estimated tax loss to 

Government. 

91 In 2021, the base salary for a GS–12 ranges from 

$66,829, at step 1, up to $86,881, at step 10. See 

Office of Personnel Mgmt., Salary Table 2021–GS 

Incorporating the 1% General Schedule Increase 

Effective January 2021, https://www.opm.gov/ 

policy-data-oversight/pay-leave/salaries-wages/ 

salary-tables/pdf/2021/GS.pdf (last visited May 17, 

2021). 

92Weighted average base salaries across position, 

FY, and location are drawn from DOJ EOIR PASD 

analysis. Interpreter wages are presented hourly 

here, as these positions are paid differently and not 

always on an annual basis. In 2021, the base salary 

for a GS–15 step 3 is $117,824 and step 4 is 

$121,506. See id. 

93 In 2021, the base salary for a GS–13 step 1 is 

$79,468. See id. 

94 In 2021, the base salary for a GS–14 step 1 is 

$93,907. See id. 

mitigate the beneficial impacts to 

employers. 

The early possible entry into the labor 

force of some positive-screened credible 

fear asylum applicants is not expected 

to change the composition of the labor 

market, as it would affect only the 

timing, not the scale of the labor force. 

However, there may be some labor 

market impacts from asylum seekers 

who currently enter the labor market 

with a pending asylum application and 

who may no longer be entering the labor 

market under this proposed rule if they 

get a decision sooner on their asylum 

claim. As we cannot predict how many 

people would be impacted in such a 

way, we are not able to quantify this 

impact. 

Furthermore, there may be tax 

impacts for the Government. It is 

difficult to quantify income tax impacts 

of earlier employment in the tight labor 

market scenario because individual tax 

situations vary widely, but the 

Departments estimate the potential 

contributory effects on employment 

taxes, namely Medicare and Social 

Security, which have a combined tax 

rate of 7.65 percent (6.2 percent and 

1.45 percent, respectively).89 With both 

the employee and employer paying their 

respective portion of Medicare and 

Social Security taxes, the total estimated 

accretion in tax transfer payments from 

employees and employers to Medicare 

and Social Security is 15.3 percent.90

The Departments will rely on this total 

tax rate where applicable. The 

Departments are unable to quantify 

other tax transfer payments, such as for 

Federal income taxes and State and 

local taxes. As noted above, the 

Departments do not know how many 

individuals with a positive credible fear 

determination will be affected, and what 

the average day-difference would be, 

and therefore the Departments cannot 

make an informed monetized estimate 

of the potential impact. It therefore 

follows that the Departments cannot 

monetize the potential tax impacts of 

the proposed rule. However, the 

Departments can provide partial 

quantitative information by focusing on 

the workday earnings presented earlier. 

At the wage bounds, the workday 

earnings, at $136.88 and $314.00, are 

multiplied by 0.153 to obtain $20.94 

and $48.04, respectively, with a 

midpoint of $34.49, which are the daily 

employment tax impacts per individual. 

The tax impacts per person would 

accrue to the total day-difference in 

earnings scaled by 0.714, to reflect a 

five-day workweek. 

Having developed partial (based on an 

individual basis) monetized impacts of 

this proposed rule, there are two 

important caveats applicable to the 

population of asylum applicants who 

have received a positive credible fear 

determination. Foremost, as we detail 

extensively in the following module, 

there will be resource requirements and 

associated costs needed to make this 

proposed rule operational and effective. 

These changes will not occur 

instantaneously and may require 

months or even a year or more to fully 

implement. While existing USCIS 

resources will be able to effectuate 

changes for some individuals rather 

quickly, others (and thus the entire 

population from an average perspective) 

will face a time horizon in realizing the 

impacts—generally the impacts are 

beneficial as they include earlier asylum 

determinations, income gains, and 

possible filing cost-savings. While the 

time horizon would not be accounted as 

a cost to applicants, some may face a 

delay in realizing such benefits. Second, 

despite the possibility that some 

baseline EAD filers may choose not to 

file in the future, there could be 

mitigating effects to concomitant 

volume declines for Form I–765(c)(8) 

submissions. 

In closing, we have noted that the 

impacts developed in this section apply 

to the population that receives a 

positive credible fear determination. 

Additionally, for the subset of this 

population that receives a negative 

asylum determination from USCIS, the 

possibility of de novo review of their 

claim by an IJ may benefit some 

applicants by affording another 

opportunity for review and approval of 

their asylum claims. 

ii. Impacts to USCIS 

a. Total Quantified Estimated Costs of 

Regulatory Changes 

In this section, DHS discusses impacts 

to the Federal Government. Where 

possible, cost estimates have been 

quantified, otherwise they are discussed 

qualitatively. The total annual costs are 

provided only for those quantified costs 

that can be applied to a population. 

Costs of Staffing to USCIS 

USCIS will need additional staffing to 

implement the provisions presented in 

this proposed rule. The staffing 

requirement will largely depend on the 

anticipated volume of credible fear 

referrals. In addition to asylum officers, 

USCIS will require additional 

supervisory staff, operational personnel, 

and organizational structures 

commensurate with the number of 

asylum officers needed. USCIS 

anticipates an increased need for highergraded field adjudicators and 

supervisors to implement the provisions 

of this proposed rule. Approximately 92 

percent of the field asylum officers are 

currently employed at the GS–12 pay 

level or lower.91 Under this model, 

USCIS will be assuming work normally 

performed by an IJ. EOIR data indicate 

the weighted average salary of $155,089 

in FY 2021 for IJs, $71,925 for Judicial 

Law Clerks (‘‘JLC’’s), $58,394 for Legal 

Assistants, $132,132 for DHS Attorneys, 

and $98.51 per hour for interpreters.92

Notably, entry-level IJs are required to 

adjudicate a wider array of immigration 

applications than asylum officers, and 

their decisions are not subject to 100 

percent supervisory review, unlike 

current USCIS asylum officers. As such, 

under this proposed rule, USCIS asylum 

officers making final decisions on 

statutory withholding of removal and 

CAT protection cases would be at a GS– 

13 minimum, considering they will be 

conducting adjudications traditionally 

performed only by IJs.93 In addition, 

first-line Supervisory Asylum Officers 

(‘‘SAO’’s) reviewing these decisions 

would be graded at a GS–14.94

Currently, not all SAOs are at a grade 

GS–14. However, aligning all first-line 

SAOs to a GS–14 ensures operational 

flexibility and makes this position 

consistent with the similar work 

processes and functions performed by 

the first-line Supervisory Refugee 

Officer position. 

Currently, USCIS refers all credible 

fear determinations to IJs at EOIR. This 


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95Estimate based on analysis provided by EOIR 

on May 19, 2021, of median digital audio recording 

(‘‘DAR’’) length data from all merit and master 

asylum hearings between FY 2016 and FY 2020. 

The five-year average estimated cost of hearings is 

based on 2,087 assumed hours per year for the IJ, 

JLC, and DHS attorneys’ at the annual salaries 

shown, plus the hourly cost per interpreter. These 

annual values were multiplied by the respective 

sums of the annual median lengths of master and 

merit hearings for corresponding years to produce 

the five-year average cost per hearing of $470.62. 

96Note that the primary estimate of 150,000 is not 

equal to the average of the lower volume of 75,000 

credible fear cases and the upper volume of 300,000 

credible fear cases. Rather, this primary estimate, 

based on OCFO modeling, represents the number of 

cases that the agency may reasonably expect. The 

OCFO volume levels were developed as a guide for 

several possible ranges that could be realized in the 

future, taking into account variations in the 

populations. The actual volume levels could be 

above or below these levels. 

97Note that the primary estimate of 2,035 total 

new positions is not equal to the average of the 

lower 794 and upper bound 4,647 estimates. Rather, 

this primary estimate, based on a staffing allocation 

model, represents the number of staff in a mix of 

occupations at a mix of grade levels that the agency 

may need to hire to handle the volume of credible 

fear cases. The staffing is commensurate with OCFO 

model volume levels, which were developed as a 

guide for several possible ranges that could be 

realized in the future, taking into account variations 

in the populations. The actual volume levels and 

hence staffing could be above or below these levels. 

proposed rule continues to provide for 

the possibility that individuals who 

receive a negative credible fear 

determination may request review of the 

negative determination by an IJ at EOIR. 

Reviewing historical EOIR data on the 

amount of time required to complete a 

typical hearing with a credible fear 

origin and only an application for 

asylum, the median duration for 

credible fear merit plus master hearings 

from FY 2016 through FY 2020 is about 

97 minutes, or 1.6 hours. Factoring in 

the EOIR weighted average salaries for 

the IJs, JLCs, DHS Attorneys, and 

interpreters required for EOIR to 

complete these hearings, we estimate 

the median cost to be $470.62 95 per 

hearing over the same time period. 

USCIS analyzes a range of credible 

fear cases to estimate staffing 

requirement costs. At a lower bound 

volume of 75,000 credible fear cases, 

USCIS assumes it would receive fewer 

credible fear cases compared to prior 

years (with the exception of FY 2020, 

which had a lower number of credible 

fear cases due to the COVID–19 

pandemic and resulting border 

closures). A volume of 300,000 credible 

fear cases is an upper bound, based on 

the assumption that nearly all 

individuals apprehended will be placed 

into expedited removal for USCIS to 

process. As shown in Table 3, the 

lowest number of credible fear cases 

received within the last five years was 

79,842 in FY 2017, while the highest 

was 102,204 in FY 2019. DHS 

recognizes that the estimated volume of 

300,000 is nearly three times the highest 

annual number of credible fear cases 

received, but DHS presents this as an 

upper bound estimate to reflect the 

uncertainty concerning an operational 

limit to how many credible fear cases 

could be handled by the agency in the 

future. Inclusion of this unlikely upper 

bound scenario is intended only to 

present information concerning the 

potential costs should the agency 

consider an intervention at the highest 

end of the range. USCIS expects 

volumes to fall within the lower and 

upper bounds and therefore we also 

provide a primary estimate of 150,000 

credible fear cases.96

USCIS has estimated the staffing 

resources it will need to implement this 

proposed rule. At the three volume 

levels of credible fear cases, USCIS 

plans to hire between 794 and 4,647 

total new positions, with a primary 

estimate of 2,035 total new positions.97

The estimated costs associated with 

payroll, non-payroll, and other general 

expenses including interpreter services, 

transcription services, facilities, 

physical security, information 

technology (‘‘IT’’) case management, 

and other contract, supplies, and 

equipment are anticipated to begin in 

FY 2022. 

In developing the quantified costs of 

this proposed rule, there are likely to be 

initial costs associated with the hiring 

and training of staff, and those payroll 

and other costs associated with the 

additional personnel would continue in 

future years. Additionally, as was 

explained in Section G of this preamble, 

DHS expects a phased approach to 

implementation due to budgetary and 

logistical factors. The cost estimates 

developed below focus on three volume 

bands and are based on initial data and 

staffing models that captured initial 

implementation costs accruing to FY 

2022 and FY 2023. It therefore partially 

captures the likely phasing of resourcing 

and costs, but not the full phasing that 

could extend into further years. As of 

the final drafting of this proposed rule, 

DHS does not have the appropriate data 

to integrate a full phasing of the 

implementation in terms of quantified 

resource costs. However, we do not 

believe a partial implementation 

significantly skews the expected costs of 

this proposed rule. We offer some 

additional comments concerning this 

phasing of implementation as it relates 

to costs at the conclusion of this 

analysis. 

The Departments recognize that initial 

costs are likely to spill into future years 

depending on the pace of hiring, 

employee retention, obtaining and 

signing contracts (for interpreters, 

transcription, facilities), training, etc. 

For the remainder of FY 2021, DHS will 

finalize job descriptions, post new 

positions, and begin the hiring process 

to onboard some new Federal 

employees, and DHS will work to 

procure new contracts for interpreters, 

transcription, facilities, and security 

staff as its current fiscal situation 

allows. In FY 2022, the implementation 

costs are expected to range between 

$179.8 million and $952.4 million with 

a primary cost estimate of $438.2 

million, assuming all staff is hired and 

corresponding equipment needs are 

purchased in the fiscal year. DHS 

recognizes that, operationally, it may 

take more time to attain the staffing 

postures described. However, we are not 

able to reliably predict those timelines 

due to the uncertain nature of the 

recruitment and onboarding processes. 

Any delay in hiring would reduce the 

first-year costs of implementation, as 

explained further below. The itemized 

planned resources are presented in 

Table 7. 

TABLE 7—ESTIMATED USCIS FY 2022 FUNDING REQUIREMENTS BY VOLUME OF CREDIBLE FEAR REFERRALS

[$ in thousands] 

75k cases 150k cases 300k cases 

(A) Staffing ................................................................................................................................... $140,507 $355,175 $806,697 

Payroll ................................................................................................................................... 113,602 285,983 648,257 

Non-Payroll ........................................................................................................................... 26,905 69,192 158,440 

(B) General Expenses ................................................................................................................. 39,313 83,025 145,682 

Interpreter Services .............................................................................................................. 6,615 19,136 44,179 

Transcription Services .......................................................................................................... 9,366 26,697 37,362 


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TABLE 7—ESTIMATED USCIS FY 2022 FUNDING REQUIREMENTS BY VOLUME OF CREDIBLE FEAR REFERRALS— 

Continued 

[$ in thousands] 

75k cases 150k cases 300k cases 

Facilities ................................................................................................................................ 6,635 17,606 40,865 

Physical Security .................................................................................................................. 623 1,654 3,839 

IT Case Management ........................................................................................................... 12,500 12,500 12,500 

Other Contract/Supplies/Equipment ..................................................................................... 3,574 5,432 6,937 

Total ............................................................................................................................... 179,820 438,200 952,379 

Source: USCIS Analysis from RAIO and OCFO, May 19, 2021. 

In FY 2023, USCIS estimates costs 

between $164.7 million and $907.4 

million, with a primary estimate of 

$413.6 million, as shown in Table 8. 

The reductions are mostly attributable 

to non-recurring, one-time costs for new 

staff and upgrades to IT case 

management systems, although a 

decline in costs pertaining to other 

contracts/supplies/equipment is also 

expected. The largest expected cost 

decrease is for IT case management, 

which is estimated to decline from 

$12.5 million in FY 2022 down to 

$4.375 million in FY 2023. Meanwhile, 

costs for interpreter and transcription 

services, facilities, and physical security 

are expected to rise in FY 2023 to factor 

in resource cost increases. For FY 2024 

through FY 2031 of implementation, 

DHS expects resource costs to stabilize. 

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

[$ in thousands] 

75k cases 150k cases 300k cases 

(A) Staffing ................................................................................................................................... $133,427 $337,047 $766,159 

Payroll ................................................................................................................................... 122,753 309,758 703,852 

Non-Payroll ........................................................................................................................... 10,674 27,289 62,307 

(B) General Expenses ................................................................................................................. 31,267 76,554 141,249 

Interpreter Services .............................................................................................................. 6,813 19,710 45,504 

Transcription Services .......................................................................................................... 9,647 27,498 38,483 

Facilities ................................................................................................................................ 6,834 18,134 42,091 

Physical Security .................................................................................................................. 642 1,704 3,954 

IT Case Management ........................................................................................................... 4,375 4,375 4,375 

Other Contract/Supplies/Equipment ..................................................................................... 2,956 5,133 6,842 

Total ............................................................................................................................... 164,694 413,601 907,408 

Source: USCIS Analysis from RAIO and OCFO, May 19, 2021. 

To estimate the costs for each category 

itemized in Tables 7 and 8, USCIS 

considered the inputs for each. On 

average, USCIS expects to hire the 

majority of new staff at the GS–13, step 

1 level, and most of those hired will 

serve as asylum officers. As stated, these 

officers will be adjudicating statutory 

withholding of removal and 

withholding and deferral of removal 

under the CAT, so their pay will be 

higher than the current asylum officer 

pay, which is at a GS–12 level. 

Additionally, USCIS assumes step 1 

because these employees are expected to 

be new to the position. Payroll costs 

also include Government contributions 

to non-pay benefits, such as healthcare 

and retirement. While payroll is the 

greatest estimated cost to hiring staff, 

non-payroll costs include training, 

equipping, and setting staff up with 

resources such as laptops, cell phones, 

office supplies, etc. For example, 

asylum officers are required to attend 

and successfully complete a multi-week 

residential training at a Federal Law 

Enforcement Training Center (‘‘FLETC’’) 

as a condition of their continued 

employment. The estimated cost per 

student (including FLETC enrollment 

costs, travel, etc.) is approximately 

$7,000. The cost of training would apply 

to any new asylum staff with ‘‘officer’’ 

in their title. To fully furnish and equip 

new employees, USCIS estimates a cost 

of $3,319 per asylum employee. Costs 

for new equipment would be largely 

commensurate with the increase in 

staffing levels. 

In addition to costs associated with 

hiring new staff, DHS anticipates that it 

will need to both increase funding on 

existing contracts and procure new 

ones. As a result of this proposed rule, 

the need for interpretation services will 

increase as the number of asylum 

interviews USCIS performs rises. 

Current interpreter contracts cannot 

absorb this expected increase. Using 

current contracts, USCIS applied the 

current cost model to the estimated 

increase in case volumes in order to 

estimate costs. The facilities and 

physical security estimates were 

similarly based on current cost models 

that were expanded to account for 

additional employees. Additional 

contract support will also be needed for 

transcription services to create a written 

record of the asylum hearing, which 

staff are not currently employed by 

USCIS. To create transcription service 

estimates, USCIS applied EOIR’s current 

cost model to the estimated increase in 

case volumes. DHS also anticipates 

costs associated with general expenses 

associated with miscellaneous contract, 

supplies, equipment, etc. commensurate 

with the increase in staff. 

The timing of these costs will depend 

on the hiring timeline but are expected 

to commence in the first year. DHS 

recognizes that if it takes more than one 

year to hire and equip asylum 

employees, costs may instead be 

experienced in later years. 


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98While this plan tracks the FY 2022 time frame, 

variations in the pace of Federal and contractor 

hiring and retention during the performance period, 

unforeseen legal or other policy challenges to any 

electronic process, and the ability of relevant offices 

to truly operationalize minimal functionality give 

their own staffing constraints to handle manually 

any additional process automations, could delay 

some implementation into FY 2023. 

99 Data and information provided by the USCIS 

IRIS Directorate. The average annual biometrics 

volumes were obtained through the CPMS database. 

The cost contract reflects the most recent contract 

update, dated June 18, 2020. 

100 Data and information provided by USCIS IRIS 

Directorate, utilizing the CPMS database. 

101Economies of scale is a technical term that is 

used to describe the process whereby the greater the 

quantity of output produced (in this case more 

biometric service appointments), the lower the perunit fixed cost or per-unit variable costs to produce 

that output. 

Costs to Information Technology 

Typology to USCIS 

DHS is planning upgrades to internal 

management systems and databases as a 

requirement to implement this proposed 

rule. The estimated cost of these 

upgrades in FY 2022 is a one-time cost 

of $12.5 million that will impact 

virtually all processing and recordkeeping systems at USCIS. The cost 

embodies funds for enhancements and 

refurbishment to the USCIS Global case 

management system that would support 

features such as: Ensuring transition of 

positive credible fear screening cases to 

the hearing process currently provided 

for affirmative asylum cases, support for 

withholding of removal and CAT 

adjudication features, non-detained 

scheduling enhancements, and 

capabilities to accept and provide 

review for electronic documents. The 

one-time cost also includes funds 

earmarked for teams that support 

integrations with other internal and 

external-facing systems, such as recordkeeping, identity management and 

matching, reporting and analytics, 

applicant-facing interfaces, and other 

key USCIS systems, as well as external 

systems at Immigration and Customs 

Enforcement (‘‘ICE’’), CBP, or DOJ.98

Included in these $12.5 million costs 

are the costs to pay staff to make these 

upgrades. DHS estimates between 30 

and 40 individuals, with a little over 

half contract personnel and the rest 

being Federal employees, would be 

involved (either part- or full-time) in the 

implementation of these enhancements 

through FY 2022. The Federal personnel 

would mainly comprise GS–14 and GS– 

15 level personnel and supervisory and 

management staff. 

IT costs are expected to decline in FY 

2023 and remain flat into the future at 

$4.375 million, which accounts for 

ongoing operations and maintenance 

costs. New features or upgrades are not 

expected at this time, but if they were 

to be needed in the future, those 

enhancements would result in 

additional costs not included here. 

At present, DHS does not envision 

new facilities or additional structures 

being required from an IT perspective to 

implement this rule. 

Importantly, this effort is expected to 

coincide with the first electronic 

processing of the Form I–589. Since this 

will be a significant change for 

processing asylum applications, 

unexpected errors or system changes 

could have impacts on this project as 

well. Additional dependencies rely on 

the availability of ICE, CBP, and DOJ 

systems to integrate with USCIS systems 

to provide for streamlined 

implementation. However, since this 

trajectory was enabled outside the scope 

of this rule, we do not attribute costs to 

it. 

As described earlier in this analysis, 

we expect no net change regarding 

biometrics collection germane to asylum 

applications for individuals with a 

positive credible fear determination. We 

also detailed how factors concomitant to 

more expeditious EAD approvals make 

it impossible to estimate the magnitude 

or even direction in the net change in 

Form I–765 filing volumes (related to 

asylum or withholding of removal), and 

hence, commensurate biometrics 

collections (and fee payments). 

However, given the parameters of this 

proposed rule, any net change in 

biometrics would not impose new costs 

to the Federal Government. The 

maximum monthly volume of 

biometrics submissions allowed by the 

current ASC contract is 1,633,968 and 

the maximum annual volume is 

19,607,616.99 The average number of 

individuals that submitted biometrics 

annually across all USCIS forms for the 

period FY 2016 through FY 2020 was 

3,911,857.100 Given that the average 

positive-screened credible fear 

population is 59,280 (Table 3), which is 

1.52 percent of the biometrics volume, 

a volume change would not encroach on 

these bounds. 

One scenario that we do account for 

relates to costs for a particular USCIS– 

ASC district. The DHS–ASC contract 

was designed to be flexible to reflect 

variations in benefit request volumes. 

The pricing mechanism within this 

contract embodies such flexibility. 

Specifically, the ASC contract is 

aggregated by USCIS district, and each 

district has five volume bands with its 

pricing mechanism. The incumbent 

pricing strategy takes advantage of 

economies of scale because larger 

biometrics processing volumes have 

smaller corresponding biometrics 

processing prices.101 For example, Table 

9 provides an example of the pricing 

mechanism for a particular USCIS 

district. This district incurs a monthly 

fixed cost of $25,477.79, which will 

cover all biometrics submissions under 

a volume of 8,564. However, the price 

per biometrics submission decreases 

from an average cost of $6.66 for 

volumes between a range of 8,565 and 

20,524 to an average of $5.19 once the 

total monthly volume exceeds 63,503. In 

other words, the average cost decreases 

when the biometrics submissions 

volume increases (jumps to a higher 

volume band). 

TABLE 9—EXAMPLE OF PRICING MECHANISM FOR A USCIS DISTRICT PROCESSING BIOMETRICS APPOINTMENTS, FY 2021 

District X Volume band Minimum 

volume 

Maximum 

volume Costs 

Baseline: Fixed price per month ................................................................... AA ..................... 0 8,564 $25,477.79 

Fixed price per person processed ................................................................ AB ..................... 8,565 20,524 6.66 

Fixed price per person processed ................................................................ AC .................... 20,525 31,752 5.94 

Fixed price per person processed ................................................................ AD .................... 31,753 63,504 5.53 

Fixed price per person processed ................................................................ AE ..................... 63,505 95,256 5.19 

Source: USCIS, IRIS Directorate, received May 10, 2021. 

At the district level, since there are 

small marginal changes to costs in terms 

of volumes, it would take a substantial 

change in volumes for a particular 

district to mount a significant change in 

costs for that district. If biometrics 


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volumes increase on net, there could be 

small marginal, and hence, average, cost 

declines; in contrast, if volumes decline, 

some of those marginal costs could not 

be realized. 

Having developed the costs to USCIS 

to implement the proposed rule, this 

section brings the total costs together as 

annual inputs that are discounted over 

a 10-year horizon. At the three 

population bounds, the inputs are 

captured in Table 10. The FY 2022 and 

FY 2023 costs are from Tables 7 and 8. 

For FY 2024 through FY 2031, human 

resources cost increases. As stated 

earlier, USCIS expects positions to be 

filled at step 1 for each GS level, so in 

years where employees remain at the 

same step for more than one year, these 

estimates account only for human 

resource cost increases (FYs 2026, 2028 

and 2030). The general non-IT cost 

increases account for expected contract 

pricing increases. Finally, IT costs are 

expected to remain flat at $4.375 million 

into the future, which accounts for 

ongoing operations and maintenance 

costs. 

TABLE 10—MONETIZED COSTS OF THE PROPOSED RULE TO USCIS 

[In undiscounted 2020 dollars] 

Time Period: FYs 2022–2031 

FY Human 

resources 

General 

(non-IT) cost IT expenditure Annual total 

10A. Lower Population Bound (75k Annual Cases) 

2022 ....................................................................................................... $140,507,000 $26,813,000 $12,500,000 $179,820,000 

2023 ....................................................................................................... 133,427,000 26,892,000 4,375,000 164,694,000 

2024 ....................................................................................................... 137,429,810 27,698,760 4,375,000 169,503,570 

2025 ....................................................................................................... 141,552,704 28,529,723 4,375,000 174,457,427 

2026 ....................................................................................................... 142,968,231 29,385,614 4,375,000 176,728,846 

2027 ....................................................................................................... 147,257,278 30,267,183 4,375,000 181,899,461 

2028 ....................................................................................................... 148,729,851 31,175,198 4,375,000 184,280,049 

2029 ....................................................................................................... 153,191,747 32,110,454 4,375,000 189,677,201 

2030 ....................................................................................................... 154,723,664 33,073,768 4,375,000 192,172,432 

2031 ....................................................................................................... 159,365,374 34,065,981 4,375,000 197,806,355 

10-year total .................................................................................... 1,459,152,660 300,011,682 51,875,000 1,811,039,342 

10B. Primary Population Bound (150k Annual Cases) 

2022 ....................................................................................................... 355,175,000 70,525,000 12,500,000 438,200,000 

2023 ....................................................................................................... 337,047,000 72,179,000 4,375,000 413,601,000 

2024 ....................................................................................................... 347,832,504 74,344,370 4,375,000 426,551,874 

2025 ....................................................................................................... 358,963,144 76,574,701 4,375,000 439,912,845 

2026 ....................................................................................................... 362,552,776 78,871,942 4,375,000 445,799,718 

2027 ....................................................................................................... 374,154,464 81,238,100 4,375,000 459,767,565 

2028 ....................................................................................................... 377,896,009 83,675,243 4,375,000 465,946,252 

2029 ....................................................................................................... 389,988,681 86,185,501 4,375,000 480,549,182 

2030 ....................................................................................................... 393,888,568 88,771,066 4,375,000 487,034,634 

2031 ....................................................................................................... 406,493,002 91,434,198 4,375,000 502,302,200 

10-year total .................................................................................... 3,703,991,149 803,799,121 51,875,000 4,559,665,270 

10C. High Population Bound (300k Annual Cases) 

.

2022 ....................................................................................................... 806,697,000 133,182,000 12,500,000 952,379,000 

2023 ....................................................................................................... 766,159,000 136,874,000 4,375,000 907,408,000 

2024 ....................................................................................................... 793,740,724 140,980,220 4,375,000 939,095,944 

2025 ....................................................................................................... 822,315,390 145,209,627 4,375,000 971,900,017 

2026 ....................................................................................................... 830,538,544 149,565,915 4,375,000 984,479,459 

2027 ....................................................................................................... 860,437,932 154,052,893 4,375,000 1,018,865,824 

2028 ....................................................................................................... 869,042,311 158,674,480 4,375,000 1,032,091,791 

2029 ....................................................................................................... 900,327,834 163,434,714 4,375,000 1,068,137,548 

2030 ....................................................................................................... 909,331,112 168,337,755 4,375,000 1,082,043,868 

2031 ....................................................................................................... 942,067,032 173,387,888 4,375,000 1,119,829,921 

10-year total .................................................................................... 8,500,656,879 1,523,699,492 51,875,000 10,076,231,371 

The totals reported in Table 10 are 

collated in Table 11, with the 10-year 

discounted present values, each at a 3 

percent and 7 percent discount rate. It 

is noted that since the cost inputs differ 

yearly, the average annualized 

equivalence costs are not uniform across 

discount rates. 


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102The average wage for lawyers is provided by 

the Department of Labor. See U.S. Dep’t of Labor 

BLS, May 2021 National Occupational Employment 

and Wage Estimates, https://www.bls.gov/oes/2020/ 

may/oes_nat.htm#00-0000 (last visited May 13, 

2021). Calculation: Average hourly wage for lawyers 

$69.70 × benefits burden of 1.45 = $101.07 

(rounded). 

TABLE 11—MONETIZED COSTS OF THE PROPOSED RULE

[In millions, 2020 dollars] 

Population Level 

Undiscounted 3-Percent 7-Percent 

10-Year cost 10-Year cost Annualized cost 10-Year cost Annualized cost 

Low ........................................................................... $1,811.0 $1,538.8 $180.4 $1,260.8 $179.5 

Primary ..................................................................... 4,559.7 3,871.3 453.8 3,168.9 451.2 

High .......................................................................... 10,076.2 8,550.3 1,002.4 6,993.7 995.8 

As discussed in Section G of this 

preamble, and alluded to above, DHS 

expects this proposed rule to be 

implemented in phases. Our 

quantitative cost estimates are based on 

the assumption that the funding for the 

proposed rule is essentially available 

when the proposed rule takes effect, and 

that implementation costs are spread 

out over several years due to timing 

effects related to operational and hiring 

impacts. In reality, the effect of 

budgeting constraints and variations is 

expected to play a prominent role in the 

phasing in of the program. Our 

estimates thus account partially but not 

fully for such phasing. Incorporating 

additional phasing into resource 

allocation models is complex because of 

the interaction between initial and 

recurring costs, and DHS is not prepared 

at this time to attempt to fully phase in 

the costs quantitatively. Despite this 

limitation, we do not believe that the 

true costs would be significantly 

different than those presented above. A 

phased implementation would not skew 

the actual costs, but rather allocate them 

to different timing sequences. In fact, 

from a discounting perspective the 

present value of the costs would 

actually be lower if they were allocated 

to future years. DHS will continue to 

evaluate all pertinent data and 

information related to the phasing 

approach, and if tractable, may include 

refined estimates of the resource-related 

costs in the final rule. 

DHS welcomes public comment on 

the phasing of costs and provides some 

additional, preliminary information 

here to supplement the cost data 

presented above. As of the final drafting 

of this proposed rule, DHS believes that 

through FY 2022 new staff positions can 

be funded with existing resources, 

which would support a minimum 

processing level of 50,000 annual 

family-unit cases. For the medium and 

high-volume bands of 150,000 and 

300,000 annual cases, respectfully, DHS 

does not believe it can meet the full 

staffing requirements with current 

funding. Based on preliminary 

modelling, it could take up to three 

years to fully staff the medium-volume 

band and up to five years to staff the 

high-volume band. 

If the medium- and high-volume 

bands of 150,000 and 300,000 were to be 

funded through a future fee rule, it 

would increase fees by an estimated 

weighted average of 13 percent and 26 

percent respectively. This estimated 

increase would be attributable to the 

implementation of the asylum officer 

portions of the proposed rule only, and 

it is provided to show the magnitude of 

the impact that implementation of this 

proposed rule would have in addition to 

other increases in a future fee rule. The 

13 percent or 26 percent estimated 

weighted average increase would be in 

addition to any changes in the IEFA 

non-premium budget. 

b. Intra-Federal Government Sector 

Impacts 

This proposed rule is expected to shift 

the initial case processing of some 

asylum and protection claims from 

EOIR to USCIS. We present this shift in 

case processing as new resource costs to 

USCIS since new staff would be 

employed, new IT expenditures 

acquired, etc. There will be new 

resource costs to the economy. The IJs 

at EOIR will continue to remain at DOJ 

and work on other priority matters not 

related to the high volume of asylum 

and protection claims processed 

through expedited removal. Some IJs are 

expected to continue to work on these 

claims through the do novo review 

process for appeals from the denial of 

asylum claims. Cases in which USCIS 

grants all relief under the proposed rule, 

however, would not receive further 

administrative review. Accordingly, 

every case granted relief or protection 

by USCIS would constitute a direct 

reduction in new cases that EOIR would 

have to adjudicate. Given EOIR’s 

significant pending caseload of 

approximately 1.3 million cases, 

reducing the number of cases referred to 

EOIR by 11,250 to 45,000 will enable 

EOIR to focus its resources on 

addressing existing pending cases and 

reducing the growth of the overall 

pending caseload. A reduction in the 

pending case load may reduce the 

overall time required for adjudications 

since dockets would not have to be set 

as far into the future. This in turn will 

better enable EOIR to meet its mission 

of fairly, expeditiously, and uniformly 

interpreting and administering the 

Nation’s immigration laws, including 

granting relief or protection to 

noncitizens who qualify. 

iii. Familiarization Costs, Benefits, and 

Transfers of Possible Early Labor Market 

Entry 

It is likely that there will be 

familiarization costs associated with 

this proposed rule. It is expected that 

applicants and their support network 

will incur costs to read and develop an 

understanding of this proposed rule and 

the associated changes in process. If, for 

example, attorneys are utilized, the cost 

could be $101.07 102 per hour, which is 

the average hourly wage for lawyers 

including the full cost of benefits. 

The proposed rule offers other 

benefits to asylum applicants and the 

Government. Although we cannot parse 

out the transfer and costs portions 

explicitly, we believe that most of the 

distributional effects will comprise 

transfers that are beneficial to the 

asylum seekers (which we calculated on 

a per-person, workday basis), as 

opposed to costs. These transfers may 

impact the support network of the 

applicants. This network could include 

public and private entities, and it may 

comprise family and personal friends, 

legal services providers and advisors, 

religious and charity organizations, 

State and local public institutions, 

educational providers, and nongovernmental organizations. To the 

extent that some applicants may be able 

to earn income earlier, burdens to this 

support network may be lessened. 

However, as described above, it will 

take time for USCIS to make the 

requisite resourcing and staffing 

changes needed to fully effectuate the 

changes under which the impacts could 


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103Based on the five-year (FY 2016 through FY 

2020) average, an estimated 15 percent of EOIR 

asylum claims were granted asylum in cases 

originating with a credible fear claim. See EOIR 

Adjudications Statistics: Asylum Decision and 

Filing Rates in Cases Originating with a Credible 

Fear Claim (Apr. 19, 2021), https://www.justice.gov/ 

eoir/page/file/1062976/download (last visited Aug. 

4, 2021). 

104See Public Law 104–121, tit. II, 110 Stat. 847 

(5 U.S.C. 601 note). A small business is defined as 

any independently owned and operated business 

not dominant in its field that qualifies as a small 

business per the Small Business Act. See 15 U.S.C. 

632(a)(1). 

be realized. In other words, there is 

likely to be a time horizon ranging from 

several months to more than a year for 

a sizeable portion of the impacts to 

begin to be realized. As a result, 

resources and efforts related to the 

applicants’ support network can be 

expected to be maintained in the short 

to medium term. 

In addition to the likely pecuniary 

benefits associated with early labor 

force entry, there could be other benefits 

as well. As a result of this proposed 

rule, DHS will begin to consider parole 

on a case-by-case basis for noncitizens 

who have been referred to USCIS for a 

credible fear screening under an 

expanded set of factors. Allowing for 

parole to be considered for more 

individuals in government custody 

could also provide resource 

redistribution to DHS in terms of 

shifting resources otherwise dedicated 

to the transportation and detention of 

these individuals and families. This will 

allow DHS to prioritize use of its limited 

detention bed space to detain those 

noncitizens who pose the greatest 

threats to national security and public 

safety, while facilitating the expanded 

use of the expedited removal process to 

order the removal of those who make no 

fear claim or who express a fear but 

subsequently fail to meet the credible 

fear screening standard after interview 

by an asylum officer (or, if applicable, 

by an IJ). However, DHS does not know 

how many future referrals for a credible 

fear screening will be eligible for parole; 

therefore, DHS cannot make an 

informed monetized estimate of the 

potential impact. 

This proposed rule presents 

substantial costs for USCIS, especially 

as costs are expended to upgrade IT 

systems and begin hiring and training 

new staff. However, there are several 

expected qualitative benefits associated 

with the increased efficiency that would 

enable some asylum-seeking individuals 

claiming credible fear to move through 

the asylum process more expeditiously 

than through the current process. Under 

current timelines, it takes anywhere 

from eight months to five years for 

individuals claiming credible fear to 

reach a final asylum determination, 

whereas this proposed rule is expected 

to take 90 days in most cases for the 

initial determination, assuming no 

further review is sought. Greater 

efficiencies in the adjudicative process 

could lead to individuals spending less 

time in detention, which is a benefit to 

both the individuals and the Federal 

Government. Another benefit is that 

EOIR will not see the cases in which 

USCIS grants asylum, which we 

estimate as at least a 15 percent 

reduction in their overall credible fear 

workload.103 DHS anticipates this will 

help to mitigate the number of cases 

pending in immigration court. 

Additionally, this benefit will extend to 

individuals granted or denied asylum 

faster than if they were to go through the 

current process with EOIR. For those 

credible fear cases that receive a 

positive screen but a denial of their 

asylum claim, USCIS recognizes that 

only certain cases seeking further 

review will reach EOIR. Therefore, the 

benefit to EOIR through this process 

could be greater than we are able to 

currently quantify. 

Given EOIR’s significant pending 

caseload, the reduction of credible fear 

cases it would process would enable 

EOIR to focus its resources on 

addressing existing pending cases and 

reducing the growth of the overall 

pending caseload. It would also allow 

EOIR to shift some resources to other 

work. We cannot currently make a oneto-one comparison between the worktime actually spent on a credible fear 

case between EOIR judges and USCIS 

asylum officers, but if there is a 

reduction in average work-times spent 

on cases, there could be cost savings to 

EOIR, though it is emphasized that these 

cost-savings would not be budgetary. 

The Departments welcome public 

comment on this topic and will 

integrate additional information into the 

final rule, as appropriate. 

Further, this proposed rule may stop 

adding to the existing volumes for Form 

I–765 for pending asylum applicants. As 

explained above, if some individuals are 

granted asylum earlier than they would 

under current conditions, some 

applicants in this process may choose 

not to file for an EAD. This could result 

in cost savings to applicants, as 

discussed, and it would also reduce 

USCIS’s adjudication burden. 

Assuming DHS places those 

noncitizens into expedited removal 

proceedings, the Departments assess 

that it will be more likely that they 

would receive a more prompt 

adjudication of their claims for asylum, 

withholding of removal, or CAT 

protection than they would under the 

existing regulations. Depending on the 

individual circumstances of each case, 

this proposed rule could mean that such 

noncitizens would likely not remain in 

the United States—for years, 

potentially—pending resolution of their 

claims, and those who qualify for 

asylum will be granted asylum several 

years earlier than they are under the 

present process. 

Overall, the anticipated operational 

efficiencies from this proposed rule may 

provide for a more prompt grant of 

protection to qualifying noncitizens and 

ensure that those who do not qualify for 

relief or protection are removed more 

efficiently than they are under current 

rules. Considering both quantifiable and 

unquantifiable benefits and costs, the 

Departments believe that the aggregate 

benefits of the rule would amply justify 

the aggregate costs. 

I. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(‘‘RFA’’), as amended by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, requires Federal 

agencies to consider the potential 

impact of regulations on small 

businesses, small governmental 

jurisdictions, and small organizations 

during the development of their rules. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

The proposed rule does not directly 

regulate small entities and is not 

expected to have a direct effect on small 

entities. Rather, this proposed rule 

regulates individuals, and individuals 

are not defined as ‘‘small entities’’ by 

the RFA.104 While some employers 

could experience costs or transfer 

effects, these impacts would be indirect. 

Based on the evidence presented in this 

analysis and throughout this preamble, 

DHS certifies that this proposed rule 

would not have a significant economic 

impact on a substantial number of small 

entities. DHS nonetheless welcomes 

comments regarding potential impacts 

on small entities, which DHS may 

consider as appropriate in a final rule. 

J. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (‘‘UMRA’’) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and Tribal governments. 

Title II of UMRA requires each Federal 


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105See BLS, Historical Consumer Price Index for 

All Urban Consumers (CPI–U): U.S. City Average, 

All Items, https://www.bls.gov/cpi/tables/ 

supplemental-files/historical-cpi-u-202103.pdf (last 

visited May 5, 2021). 

Calculation of inflation: (1) Calculate the average 

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

most recent current year available (2020); (2) 

Subtract reference year CPI–U from current year 

CPI–U; (3) Divide the difference of the reference 

year CPI–U and current year CPI–U by the reference 

year CPI–U; (4) Multiply by 100 = [(Average 

monthly CPI–U for 2020¥Average monthly CPI–U 

for 1995)/(Average monthly CPI–U for 1995)] * 100 

= [(258.811¥152.383)/152.383] * 100 = (106.428/ 

152.383) *100 = 0.6984 * 100 = 69.84 percent = 69.8 

percent (rounded). 

Calculation of inflation-adjusted value: $100 

million in 1995 dollars * 1.698 = $169.8 million in 

2020 dollars. 106 Instruction Manual section V.B(2)(a)–(c). 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed rule, or final rule 

for which the agency published a 

proposed rule that includes any Federal 

mandate that may result in $100 million 

or more expenditure (adjusted annually 

for inflation) in any one year by State, 

local, and Tribal governments, in the 

aggregate, or by the private sector. 

While this proposed rule is expected 

to exceed the $100 million expenditure 

in any 1 year when adjusted for 

inflation ($169.8 million in 2020 dollars 

based on the Consumer Price Index for 

All Urban Consumers (‘‘CPI–U’’)),105 the 

Departments do not believe this 

proposed rule would impose any 

unfunded Federal mandates on State, 

local, and Tribal governments, in the 

aggregate, or on the private sector. The 

impacts are likely to apply to 

individuals, potentially in the form of 

beneficial distributional effects and cost 

savings. There could be tax impacts 

related to the distributional effects. 

However, these do not constitute 

mandates. Further, the real resource 

costs quantified in this analysis apply to 

the Federal Government and also are not 

mandates. Therefore, the Departments 

have not prepared a written statement. 

K. Congressional Review Act 

The Administrator of the Office of 

Information and Regulatory Affairs has 

determined that this proposed rule is a 

‘‘major rule’’ within the meaning of 

Subtitle E of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (also known as the Congressional 

Review Act), 5 U.S.C. 804(2). 

Accordingly, it is expected that this 

rule, if enacted as a final rule, would be 

effective 60 days after the final rule’s 

publication. 

L. Executive Order 13132 (Federalism) 

This proposed rule would not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

proposed rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

M. Executive Order 12988 (Civil Justice 

Reform) 

This proposed rule meets the 

applicable standards set forth in 

sections 3(a) and 3(b)(2) of Executive 

Order 12988. 

N. Family Assessment 

The Departments have assessed this 

proposed action in accordance with 

section 654 of the Treasury General 

Appropriations Act, 1999, Public Law 

105–277, Div. A. With respect to the 

criteria specified in section 654(c), the 

Departments determined that the 

proposed rule would not have any 

adverse impacts on family safety or 

stability. The proposed rule would 

allow families seeking asylum the 

possibility of parole from custody, 

thereby helping preserve family unity 

and safety given the COVID–19 

pandemic. Additionally, this proposed 

rule would result in greater efficiencies 

in the expedited removal and asylum 

processes, providing speedier resolution 

of meritorious cases, and reducing the 

overall asylum system backlogs. 

O. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This proposed rule would not have 

Tribal implications under Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, because it would not have 

a substantial direct effect on one or 

more Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

P. National Environmental Policy Act 

The Departments analyze actions to 

determine whether the National 

Environmental Policy Act, Public Law 

91–190, 42 U.S.C. 4321 through 4347 

(‘‘NEPA’’), applies to them and, if so, 

what degree of analysis is required. See 

DHS, Implementing the National 

Environmental Policy Act (Directive 

023–01, issued Oct. 31, 2014, and 

Instruction Manual, issued Nov. 6, 

2014), https://www.dhs.gov/publication/ 

directive-023-01-rev-01-and-instructionmanual-023-01-001-01-rev-01-andcatex. Both the DHS Directive 023–01 

and the Instruction Manual establish the 

policies and procedures that DHS and 

its components use to comply with 

NEPA and the Council on 

Environmental Quality (‘‘CEQ’’) 

regulations for implementing NEPA, 40 

CFR parts 1500 through 1508. 

The CEQ regulations allow Federal 

agencies to establish, with CEQ review 

and concurrence, categories of actions 

(‘‘categorical exclusions’’) that 

experience has shown do not have a 

significant effect on the human 

environment and, therefore, do not 

require an Environmental Assessment or 

Environmental Impact Statement. 40 

CFR 1501.4, 1507.3(e)(2)(ii). The DHS 

categorical exclusions are listed in 

Appendix A of the Instruction Manual. 

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.106

As discussed in more detail 

throughout this proposed rule, the 

Departments are proposing to modify 

the expedited removal process, 

specifically for those who are found to 

have a positive credible fear. The 

proposed rule could result in an 

increase in the number of noncitizens in 

expedited removal paroled out of 

custody, thereby possibly allowing for 

efficient processing or prioritizing use of 

DHS’s limited detention bed space to 

detain those noncitizens who pose the 

greatest threats to national security and 

public safety. 

Generally, the Departments believe 

NEPA does not apply to a rule intended 

to change a discrete aspect of an 

immigration program because any 

attempt to analyze its potential impacts 

would be largely, if not completely, 

speculative. This proposed rule would 

not alter any eligibility criteria, but 

rather would change certain procedures, 

specifically, which Federal agency 

adjudicates certain asylum claims. The 

proposed rule also would not make any 

changes to detention facilities. Rather, 

the detention facilities are already in 

existence and to attempt to calculate 

how many noncitizens would be 

paroled—a highly discretionary 

benefit—and how many would proceed 

to the detention centers would be near 

impossible to determine. The 

Departments have no reason to believe 

that these amendments would change 


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the environmental effect, if any, of the 

existing regulations. 

Therefore, the Departments have 

determined that, even if NEPA applied 

to this action, this proposed rule clearly 

fits within categorical exclusion A3(d) 

in the Instruction Manual, which 

provides an exclusion for 

‘‘promulgation of rules . . . that amend 

an existing regulation without changing 

its environmental effect.’’ Furthermore, 

the Departments have determined that 

this proposed rule clearly fits within the 

categorical exclusion A3(a) in the 

Instruction Manual because the 

proposed rule is of a strictly 

administrative or procedural nature. 

This proposed rule is not a part of a 

larger action and presents no 

extraordinary circumstances creating 

the potential for significant 

environmental effects. Therefore, this 

proposed rule is categorically excluded 

and no further NEPA analysis is 

required. 

Q. Paperwork Reduction Act 

USCIS Form I–765 

Under the Paperwork Reduction Act 

(‘‘PRA’’), Public Law 104–13, 109 Stat. 

163 (1995), all agencies are required to 

submit to OMB, for review and 

approval, any reporting requirements 

inherent in a rule. 

DHS and USCIS invite the general 

public and other Federal agencies to 

comment on the impact to the proposed 

collection of information. In accordance 

with the PRA, the information 

collection notice is published in the 

Federal Register to obtain comments 

regarding the proposed edits to the 

information collection instrument. 

Comments are encouraged and will be 

accepted for 60 days from the 

publication date of the proposed rule. 

All submissions received must include 

the OMB Control Number 1615–0040 in 

the body of the letter and the agency 

name. To avoid duplicate submissions, 

please use only one of the methods 

under the ADDRESSES and I. Public 

Participation section of this rule to 

submit comments. Comments on this 

information collection should address 

one or more of the following four points: 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden of the 

collection of information, including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of IT (e.g., permitting 

electronic submission of responses). 

Overview of Information Collection 

(1) Type of Information Collection: 

Revision of a Currently Approved 

Collection. 

(2) Title of the Form/Collection: 

Application for Employment 

Authorization. 

(3) Agency form number, if any, and 

the applicable component of the DHS 

sponsoring the collection: I–765; I– 

765WS; USCIS. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Individuals or 

households. USCIS uses Form I–765 to 

collect information needed to determine 

if a noncitizen is eligible for an initial 

EAD, a new replacement EAD, or a 

subsequent EAD upon the expiration of 

a previous EAD under the same 

eligibility category. Noncitizens in many 

immigration statuses are required to 

possess an EAD as evidence of 

employment authorization. USCIS is 

proposing to revise the form 

instructions to correspond with 

revisions related to information about 

the asylum application and USCIS 

grants of withholding of removal. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: The estimated total number of 

respondents for the information 

collection I–765 paper filing is 

2,179,494, and the estimated hour 

burden per response is 4.5 hours; the 

estimated total number of respondents 

for the information collection I–765 

online filing is 106,506, and the 

estimated hour burden per response is 

4 hours; the estimated total number of 

respondents for the information 

collection I–765WS is 302,000, and the 

estimated hour burden per response is 

0.5 hours; the estimated total number of 

respondents for the information 

collection biometrics submission is 

302,535, and the estimated hour burden 

per response is 1.17 hours; the 

estimated total number of respondents 

for the information collection passport 

photos is 2,286,000, and the estimated 

hour burden per response is 0.5 hours. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: The total estimated annual 

hour burden associated with this 

collection of information is 11,881,713 

hours. 

(7) An estimate of the total public 

burden (in cost) associated with the 

collection: The estimated total annual 

cost burden associated with this 

collection of information is 

$400,895,820. 

List of Subjects 

8 CFR Part 208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 235 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 1003 

Administrative practice and 

procedure, Aliens, Immigration, Legal 

services, Organization and functions 

(Government agencies). 

8 CFR Part 1208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 1235 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

Regulatory Amendments 

DEPARTMENT OF HOMELAND 

SECURITY 

Accordingly, for the reasons set forth 

in the preamble, the Secretary of 

Homeland Security proposes to amend 

8 CFR parts 208 and 235 as follows: 

PART 208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL 

■ 1. The authority citation for part 208 

continues to read as follows: 

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

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

229; 8 CFR part 2; Pub. L. 115–218. 

■ 2. Amend § 208.2 by: 

■ a. Revising paragraphs (a) and (b); 

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

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

■ c. Removing the period at the end of 

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

in its place; 

■ d. Removing and reserving paragraph 

(c)(1)(ix); 

■ e. Adding paragraph (c)(1)(x); and 


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■ f. In paragraph (c)(3)(i): 

■ i. Adding the words ‘‘and in 8 CFR 

1003.48’’ after the words ‘‘Except as 

provided in this section’’; and 

■ ii. Removing ‘‘paragraph (c)(1) or 

(c)(2)’’ and adding ‘‘paragraph (c)(1) or 

(2)’’ in its place. 

The revisions and addition read as 

follows: 

§ 208.2 Jurisdiction. 

(a) Jurisdiction of U.S. Citizenship 

and Immigration Services (USCIS). (1) 

Except as provided in paragraph (b) or 

(c) of this section, USCIS shall have 

initial jurisdiction over: 

(i) An asylum application filed by an 

alien physically present in the United 

States or seeking admission at a port-ofentry; and 

(ii) Hearings provided in accordance 

with section 235(b)(1)(B)(ii) of the Act to 

further consider the application for 

asylum of an alien, other than a 

stowaway, found to have a credible fear 

of persecution or torture in accordance 

with § 208.30(f) and retained by USCIS, 

or referred to USCIS by an immigration 

judge pursuant to 8 CFR 1003.42 and 

1208.30 after the immigration judge has 

vacated a negative credible fear 

determination. Hearings to further 

consider applications for asylum under 

this paragraph (a)(1)(ii) are governed by 

the procedures provided for under 

§ 208.9. Further consideration of an 

asylum application filed by a stowaway 

who has received a positive credible 

fear determination will be under the 

jurisdiction of an immigration judge 

pursuant to paragraph (c) of this section. 

(2) USCIS shall also have initial 

jurisdiction over credible fear 

determinations under § 208.30 and 

reasonable fear determinations under 

§ 208.31. 

(b) Jurisdiction of Immigration Court 

in general. Immigration judges shall 

have exclusive jurisdiction over asylum 

applications filed by aliens who have 

been served a Form I–221, Order to 

Show Cause; Form I–122, Notice to 

Applicant for Admission Detained for a 

Hearing before an Immigration Judge; or 

Form I–862, Notice to Appear, after the 

charging document has been filed with 

the Immigration Court. Immigration 

judges shall also have jurisdiction over 

any asylum applications filed prior to 

April 1, 1997, by alien crewmembers 

who have remained in the United States 

longer than authorized, by applicants 

for admission under the Visa Waiver 

Pilot Program, and by aliens who have 

been admitted to the United States 

under the Visa Waiver Pilot Program. 

Immigration judges shall also have the 

authority to review credible fear 

determinations referred to the 

Immigration Court under § 208.30, 

reasonable fear determinations referred 

to the Immigration Court under 

§ 208.31, and asylum officers’ denials of 

applications, under § 208.14(c)(5), 

referred to the Immigration Court for 

review under 8 CFR 1003.48. 

(c) * * * 

(1) * * * 

(x) An alien referred for proceedings 

under 8 CFR 1003.48 on or after 

[effective date of final rule]. 

* * * * * 

■ 3. Amend § 208.3 by revising 

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

follows: 

§ 208.3 Form of application. 

(a)(1) Except for applicants described 

in paragraph (a)(2) of this section, an 

asylum applicant must file Form I–589, 

Application for Asylum and for 

Withholding of Removal, together with 

any additional supporting evidence in 

accordance with the instructions on the 

form. The applicant’s spouse and 

children shall be listed on the 

application and may be included in the 

request for asylum if they are in the 

United States. One additional copy of 

the principal applicant’s Form I–589 

must be submitted for each dependent 

included in the principal’s application. 

(2) For asylum applicants, other than 

stowaways, who are awaiting further 

consideration of an asylum application 

pursuant to section 235(b)(1)(B)(ii) of 

the Act following a positive credible 

fear determination, the written record of 

a positive credible fear finding issued in 

accordance with § 208.30(f) or 8 CFR 

1003.42 or 1208.30 satisfies the 

application filing requirements in 

paragraph (a)(1) of this section and 

§ 208.4(b) for purposes of consideration 

by USCIS pursuant to the jurisdiction 

provided at § 208.2(a)(1)(ii). The written 

record of the positive credible fear 

determination shall be considered a 

complete asylum application for 

purposes of §§ 208.4(a), 208.7, and 

208.9(a); shall not be subject to the 

requirements of 8 CFR 103.2; and shall 

be subject to the conditions and 

consequences in paragraph (c) of this 

section upon signature at the asylum 

hearing. The date that the positive 

credible fear determination is served on 

the alien shall be considered the date of 

filing and receipt. Application 

information collected electronically will 

be preserved in its native format. The 

applicant’s spouse and children may be 

included in the request for asylum only 

if they were included in the credible 

fear determination pursuant to 

§ 208.30(c), or also presently have an 

application for asylum pending 

adjudication with USCIS pursuant to 

§ 208.2(a)(1)(ii). The asylum applicant 

may subsequently amend, correct, or 

supplement the information collected 

during the expedited removal process, 

including the process that concluded 

with a positive credible fear 

determination, provided the information 

is submitted directly to the asylum 

office no later than 7 calendar days prior 

to the scheduled asylum hearing, or for 

documents submitted by mail, 

postmarked no later than 10 days prior 

to the scheduled asylum hearing. As a 

matter of discretion, the asylum officer 

may consider amendments or 

supplements submitted after the 7- or 

10-day (depending on the method of 

submission) deadline or may grant the 

applicant a brief extension of time 

during which the applicant may submit 

additional evidence. The biometrics 

captured during expedited removal for 

the principal applicant and any 

dependents may be used to verify 

identity and for criminal and other 

background checks for purposes of an 

asylum application under the 

jurisdiction of USCIS pursuant to 

§ 208.2(a)(1) and any subsequent 

immigration benefit. 

* * * * * 

(c) * * * 

(3) An asylum application under 

paragraph (a)(1) of this section must be 

properly filed in accordance with 8 CFR 

part 103 and the filing instructions. 

Receipt of a properly filed asylum 

application under paragraph (a) of this 

section will commence the period after 

which the applicant may file an 

application for employment 

authorization in accordance with 

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

* * * * * 

■ 4. Amend § 208.4 by revising 

paragraph (c) to read as follows: 

§ 208.4 Filing the application. 

* * * * * 

(c) Amending an application after 

filing. Upon the request of the alien, and 

as a matter of discretion, the asylum 

officer or immigration judge with 

jurisdiction may permit an asylum 

applicant to amend or supplement the 

application filed under § 208.3(a)(1). 

Any delay in adjudication or in 

proceedings caused by a request to 

amend or supplement the application 

will be treated as a delay caused by the 

applicant for purposes of § 208.7 and 8 

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

■ 5. Amend § 208.9 by revising and 

republishing the section heading and 

paragraphs (a) through (g) to read as 

follows: 


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§ 208.9 Procedure for interview or hearing 

before an asylum officer. 

(a) Claims adjudicated. USCIS shall 

adjudicate the claim of each asylum 

applicant whose application is complete 

within the meaning of § 208.3(a)(2) or 

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

the jurisdiction of USCIS pursuant to 

§ 208.2(a). 

(b) Conduct and purpose of interview 

or hearing. The asylum officer shall 

conduct the interview or hearing in a 

nonadversarial manner and, except at 

the request of the applicant, separate 

and apart from the general public. The 

purpose of the interview or hearing 

shall be to elicit all relevant and useful 

information bearing on the applicant’s 

eligibility for asylum. At the time of the 

interview or hearing, the applicant must 

provide complete information regarding 

his or her identity, including name, date 

and place of birth, and nationality, and 

may be required to register this identity. 

The applicant may have counsel or a 

representative present, may present 

witnesses, and may submit affidavits of 

witnesses and other evidence. 

(c) Authority of asylum officer. The 

asylum officer shall have authority to 

administer oaths, verify the identity of 

the applicant (including through the use 

of electronic means), verify the identity 

of any interpreter, present evidence, 

receive evidence, and question the 

applicant and any witnesses. 

(d) Completion of the interview or 

hearing. Upon completion of the 

interview or hearing before an asylum 

officer: 

(1) The applicant or the applicant’s 

representative will have an opportunity 

to make a statement or comment on the 

evidence presented. The representative 

will also have the opportunity to ask 

follow-up questions. 

(2) USCIS will inform the applicant 

that he or she must appear in person to 

receive and to acknowledge receipt of 

the decision of the asylum officer and 

any other accompanying material at a 

time and place designated by the 

asylum officer, except as otherwise 

provided by the asylum officer. An 

applicant’s failure to appear to receive 

and acknowledge receipt of the decision 

will be treated as delay caused by the 

applicant for purposes of § 208.7. 

(e) Extensions. The asylum officer 

will consider evidence submitted by the 

applicant together with his or her 

asylum application. For applications 

being considered under § 208.2(a)(1)(i), 

the applicant must submit any 

documentary evidence at least 14 

calendar days in advance of the 

interview date. As a matter of 

discretion, the asylum officer may 

consider evidence submitted within the 

14-day period prior to the interview 

date or may grant the applicant a brief 

extension of time during which the 

applicant may submit additional 

evidence. Any such extension will be 

treated as a delay caused by the 

applicant for purposes of § 208.7. 

(f) Record. (1) The asylum 

application, all supporting information 

provided by the applicant, any 

comments submitted by the Department 

of State or by DHS, and any other 

information considered by the asylum 

officer in the written decision shall 

comprise the record. 

(2) For hearings on asylum 

applications within the jurisdiction of 

USCIS pursuant to § 208.2(a)(1)(ii), the 

record shall also include a verbatim 

audio or video recording of the hearing, 

except for statements made off the 

record with the permission of the 

asylum officer. A transcript of the 

interview will be included in the 

referral package to the immigration 

judge as described in § 208.14(c)(5). 

(g) Interpreters. (1) Except as provided 

in paragraph (g)(2) of this section, an 

applicant unable to proceed with the 

interview in English must provide, at no 

expense to USCIS, a competent 

interpreter fluent in both English and 

the applicant’s native language or any 

other language in which the applicant is 

fluent. The interpreter must be at least 

18 years of age. Neither the applicant’s 

attorney or representative of record, a 

witness testifying on the applicant’s 

behalf, nor a representative or employee 

of the applicant’s country of nationality, 

or if stateless, country of last habitual 

residence, may serve as the applicant’s 

interpreter. Failure without good cause 

to comply with this paragraph may be 

considered a failure to appear for the 

interview for purposes of § 208.10. 

(2) Notwithstanding paragraph (h) of 

this section, for asylum applications 

retained by USCIS for further 

consideration pursuant to § 208.30(f) or 

8 CFR 1003.42 or 1208.30, if the 

applicant is unable to proceed 

effectively in English, the asylum officer 

shall arrange for the assistance of an 

interpreter in conducting the hearing. 

The interpreter must be at least 18 years 

of age. Neither the applicant’s attorney 

or representative of record, a witness 

testifying on the applicant’s behalf, nor 

a representative or employee of the 

applicant’s country of nationality, or if 

stateless, country of last habitual 

residence, may serve as the applicant’s 

interpreter. 

* * * * * 

■ 6. Revise § 208.10 to read as follows: 

§ 208.10 Failure to appear for an interview 

or hearing before an asylum officer or for 

a biometrics services appointment for the 

asylum application. 

(a) Failure to appear for an asylum 

interview or hearing, or for a biometrics 

services appointment. (1) The failure to 

appear for an asylum interview or 

hearing, or for a biometrics services 

appointment, may result in one or more 

of the following actions: 

(i) Waiver of the right to an interview 

or adjudication by an asylum officer; 

(ii) Dismissal of the application for 

asylum; 

(iii) Referral of the applicant to the 

Immigration Court; 

(iv) Denial of employment 

authorization; or 

(v) For individuals whose case is 

retained by USCIS for consideration of 

their application for asylum after a 

positive credible fear determination 

pursuant to § 208.30(f) or 8 CFR 1003.42 

or 1208.30, issuance of an order of 

removal based on the inadmissibility 

determination of the immigration officer 

under section 235(b)(1)(A)(i) of the Act. 

(2) There is no requirement for USCIS 

to send a notice to an applicant that he 

or she failed to appear for his or her 

asylum interview or hearing, or for a 

biometrics services appointment prior to 

issuing a decision on the application. 

Any rescheduling request for the asylum 

interview or hearing that has not yet 

been fulfilled on the date the 

application for employment 

authorization is filed under 8 CFR 

274a.12(c)(8) will be treated as an 

applicant-caused delay for purposes of 

§ 208.7. 

(b) Rescheduling missed 

appointments. USCIS, in its sole 

discretion, may excuse the failure to 

appear for an asylum interview or 

hearing, or biometrics services 

appointment and reschedule the missed 

appointment as follows: 

(1) Asylum interview or hearing. If the 

applicant demonstrates that he or she 

was unable to make the appointment 

due to exceptional circumstances. 

(2) Biometrics services appointment. 

USCIS may reschedule the biometrics 

services appointment as provided in 8 

CFR part 103. 

■ 7. Amend § 208.14 by: 

■ a. Removing ‘‘RAIO’’ and adding in its 

place ‘‘USCIS’’ in paragraph (b); 

■ b. Revising paragraphs (c) 

introductory text and (c)(1); and 

■ c. Adding paragraph (c)(5). 

The revisions and addition read as 

follows: 

§ 208.14 Approval, denial, referral, or 

dismissal of application. 

* * * * * 


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(c) Denial, referral, or dismissal by an 

asylum officer. If the asylum officer does 

not grant asylum to an applicant after an 

interview or hearing conducted in 

accordance with § 208.9, or if, as 

provided in § 208.10, the applicant is 

deemed to have waived his or her right 

to an interview, a hearing, or an 

adjudication by an asylum officer, the 

asylum officer shall deny, refer, or 

dismiss the application as follows: 

(1) Inadmissible or deportable aliens. 

Except as provided in paragraph (c)(4) 

or (5) of this section, in the case of an 

applicant who appears to be 

inadmissible or deportable under 

section 212(a) or 237(a) of the Act, the 

asylum officer shall refer the application 

to an immigration judge, together with 

the appropriate charging document, for 

adjudication in removal proceedings (or, 

where charging documents may not be 

issued, shall dismiss the application). 

* * * * * 

(5) Alien referred for consideration of 

asylum application in a hearing before 

an asylum officer after positive credible 

fear finding. In the case of an 

application within the jurisdiction of 

USCIS pursuant to § 208.2(a)(1)(ii), the 

asylum officer shall deny the 

application for asylum. The applicant 

will be provided a written notice of the 

decision. The decision will also include 

an order of removal based on the 

immigration officer’s inadmissibility 

determination under section 

235(b)(1)(A)(i) of the Act and a decision 

on any request for withholding of 

removal under § 208.16(d) and deferral 

of removal under § 208.17, where 

applicable. The notice shall explain that 

the alien may seek to have an 

immigration judge review the decision, 

in accordance with 8 CFR 1003.48. The 

alien shall have 30 days to affirmatively 

request such review as directed on the 

decision notice. The failure to timely 

request further review will be processed 

as the alien’s decision not to request 

review. 

(i) If the alien requests such 

immigration judge review, USCIS will 

serve the alien with a notice of referral 

to an immigration judge for review of 

the asylum application. USCIS shall 

provide the record of the proceedings 

before the asylum officer, as outlined in 

§ 208.9(f), to the immigration judge and 

the alien, along with the written notice 

of decision, including the order of 

removal issued by the asylum officer, 

and the alien’s request for review. 

(ii) If the alien does not request a 

review by an immigration judge, the 

decision and order of removal will be 

final and the alien shall be subject to 

removal from the United States. 

(iii) Once USCIS has commenced 

proceedings under 8 CFR 1003.48 by 

filing the notice of referral, the 

immigration judge has sole jurisdiction 

to review the application and an asylum 

officer may not reopen or reconsider the 

application once it has been referred to 

the immigration judge. 

* * * * * 

8. Amend § 208.16 by revising 

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

follows: 

§ 208.16 Withholding of removal under 

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

withholding of removal under the 

Convention Against Torture. 

(a) Consideration of application for 

withholding of removal. An asylum 

officer shall not decide whether the 

exclusion, deportation, or removal of an 

alien to a country where the alien’s life 

or freedom would be threatened must be 

withheld, except in the case of an alien 

who is determined to be an applicant for 

admission under section 235(b)(1) of the 

Act, is found to have a credible fear of 

persecution or torture, and whose case 

is subsequently retained by or referred 

to USCIS pursuant to the jurisdiction 

provided at § 208.2(a)(1)(ii) to consider 

the application for asylum, and that 

application for asylum is denied. 

* * * * * 

(c) * * * 

(4) In considering an application for 

withholding of removal under the 

Convention Against Torture, the asylum 

officer shall first determine whether the 

alien is more likely than not to be 

tortured in the country of removal. If the 

asylum officer determines that the alien 

is more likely than not to be tortured in 

the country of removal, the alien is 

entitled to protection under the 

Convention Against Torture. Protection 

under the Convention Against Torture 

will be granted either in the form of 

withholding of removal or in the form 

of deferral of removal. An alien entitled 

to such protection shall be granted 

withholding of removal unless the alien 

is subject to mandatory denial of 

withholding of removal under 

paragraph (d)(2) or (3) of this section. If 

an alien entitled to such protection is 

subject to mandatory denial of 

withholding of removal under 

paragraph (d)(2) or (3) of this section, 

the alien’s removal shall be deferred 

under § 208.17(a). 

* * * * * 

■ 9. Amend § 208.17 by revising 

paragraph (b), (d), and (e) to read as 

follows: 

§ 208.17 Deferral of removal under the 

Convention Against Torture. 

* * * * * 

(b) Notice to alien. (1) After an asylum 

officer orders an alien described in 

paragraph (a) of this section removed, 

the asylum officer shall inform the alien 

that his or her removal to the country 

where he or she is more likely than not 

to be tortured shall be deferred until 

such time as the deferral is terminated 

under this section or under 8 CFR 

1208.17. The asylum officer shall inform 

the alien that deferral of removal: 

(i) Does not confer upon the alien any 

lawful or permanent immigration status 

in the United States; 

(ii) Will not necessarily result in the 

alien being released from the custody of 

DHS if the alien is subject to such 

custody; 

(iii) Is effective only until terminated; 

and 

(iv) Is subject to review and 

termination pursuant to this section or 

8 CFR 1208.17 if the asylum officer 

determines that it is not likely that the 

alien would be tortured in the country 

to which removal has been deferred, or 

if the alien requests that deferral be 

terminated. 

(2) The asylum officer shall also 

inform the alien that removal has been 

deferred only to the country in which it 

has been determined that the alien is 

likely to be tortured, and that the alien 

may be removed at any time to another 

country where he or she is not likely to 

be tortured. 

* * * * * 

(d) Termination of deferral of 

removal. (1) At any time while deferral 

of removal is in effect, the Asylum 

Office with jurisdiction over an alien 

whose removal has been deferred under 

paragraph (a) of this section may 

schedule a hearing to consider whether 

deferral of removal should be 

terminated. 

(2) The Asylum Office shall provide 

notice to the alien of the time, place, 

and date of the termination hearing. 

Such notice shall inform the alien that 

the alien may supplement the 

information in his or her initial 

application for withholding of removal 

under the Convention Against Torture 

and shall provide that the alien must 

submit any such supplemental 

information within 10 calendar days of 

service of such notice (or 13 calendar 

days if service of such notice was by 

mail). 

(3) The asylum officer shall conduct 

a hearing and make a de novo 

determination, based on the record of 

proceeding and initial application in 

addition to any new evidence submitted 

by the alien, as to whether the alien is 

more likely than not to be tortured in 

the country to which removal has been 


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deferred. This determination shall be 

made under the standards for eligibility 

set out in § 208.16(c). The burden is on 

the alien to establish that it is more 

likely than not that he or she would be 

tortured in the country to which 

removal has been deferred. 

(4) If the asylum officer determines 

that the alien is more likely than not to 

be tortured in the country to which 

removal has been deferred, the order of 

deferral shall remain in place. If the 

asylum officer determines that the alien 

has not established that he or she is 

more likely than not to be tortured in 

the country to which removal has been 

deferred, the deferral of removal shall be 

terminated and the alien may be 

removed to that country. Appeal of the 

asylum officer’s decision shall lie to the 

immigration judge under the process 

provided for at § 208.14(c)(5) and 8 CFR 

1003.48. 

(e) Termination at the request of the 

alien. (1) At any time while deferral of 

removal is in effect, the alien may make 

a written request to the Asylum Office 

with jurisdiction over the initial 

determination to terminate the deferral 

order. If satisfied on the basis of the 

written submission that the alien’s 

request is knowing and voluntary, the 

asylum officer shall terminate the order 

of deferral and the alien may be 

removed. 

(2) If necessary, the Asylum Office 

may calendar a hearing for the sole 

purpose of determining whether the 

alien’s request is knowing and 

voluntary. If the asylum officer 

determines that the alien’s request is 

knowing and voluntary, the order of 

deferral shall be terminated. If the 

asylum officer determines that the 

alien’s request is not knowing and 

voluntary, the alien’s request shall not 

serve as the basis for terminating the 

order of deferral. 

* * * * * 

■ 10. Amend § 208.18 by revising 

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

§ 208.18 Implementation of the Convention 

Against Torture. 

* * * * * 

(b) * * * 

(1) Aliens in proceedings on or after 

March 22, 1999. (i) An alien who is in 

exclusion, deportation, or removal 

proceedings on or after March 22, 1999, 

may apply for withholding of removal 

under 8 CFR 1208.16(c), and, if 

applicable, may be considered for 

deferral of removal under 8 CFR 

1208.17(a). 

(ii) In addition, an alien may apply for 

withholding of removal under 

§ 208.16(c), and, if applicable, may be 

considered for deferral of removal under 

§ 208.17(a), in the following situation: 

the alien is determined to be an 

applicant for admission under section 

235(b)(1) of the Act, the alien is found 

to have a credible fear of persecution or 

torture and the alien’s case is 

subsequently retained by or referred to 

USCIS pursuant to the jurisdiction 

provided at § 208.2(a)(1)(ii) for 

consideration of the application for 

asylum, and that application is denied. 

* * * * * 

■ 11. Revise § 208.19 to read as follows: 

§ 208.19 Decisions. 

The decision of an asylum officer 

issued in accordance with § 208.14(b) or 

(c) shall be communicated in writing to 

the applicant in-person, by mail, or 

electronically. Pursuant to § 208.9(d), an 

applicant must appear in person to 

receive and to acknowledge receipt of 

the decision unless, in the discretion of 

the asylum office director, service by 

mail or electronic service is appropriate. 

A letter communicating denial or 

referral of the application shall state the 

basis for denial or referral and include 

an assessment of the applicant’s 

credibility. 

■ 12. Revise § 208.22 to read as follows: 

§ 208.22 Effect on exclusion, deportation, 

and removal proceedings. 

An alien who has been granted 

asylum may not be deported or removed 

unless his or her asylum status is 

terminated pursuant to § 208.24 or 8 

CFR 1208.24. An alien who is granted 

withholding of removal or deportation, 

or deferral of removal, may not be 

deported or removed to the country to 

which his or her deportation or removal 

is ordered withheld or deferred unless 

the withholding order is terminated 

pursuant to § 208.24 or 8 CFR 1208.24, 

or deferral is terminated pursuant to 

§ 208.17(d) or (e) or 8 CFR 1208.17. 

■ 13. Amend § 208.30 by: 

■ a. Revising the section heading and 

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

text; 

■ b. Adding a heading for paragraph (e); 

■ c. Removing the introductory text of 

paragraph (e); and 

■ d. Revising paragraphs (e)(1) through 

(4), (e)(5)(i)(A), (e)(6) introductory text, 

(e)(6)(ii), (f), and (g). 

The revisions and addition read as 

follows: 

§ 208.30 Credible fear determinations 

involving stowaways and applicants for 

admission found inadmissible pursuant to 

section 212(a)(6)(C) or 212(a)(7) of the Act. 

* * * * * 

(b) Process and authority. If an alien 

subject to section 235(a)(2) or 235(b)(1) 

of the Act indicates an intention to 

apply for asylum, or expresses a fear of 

persecution or torture, or a fear of return 

to his or her country, the inspecting 

officer shall not proceed further with 

removal of the alien until the alien has 

been referred for an interview by a 

USCIS asylum officer in accordance 

with this section. A USCIS asylum 

officer shall then screen the alien for a 

credible fear of persecution or torture. 

An asylum officer, as defined in section 

235(b)(1)(E) of the Act, has the 

authorities described in § 208.9(c). If the 

asylum officer in his or her discretion 

determines that circumstances so 

warrant, the asylum officer, after 

supervisory concurrence, may refer the 

alien for proceedings under section 240 

of the Act without making a credible 

fear determination. 

(c) Treatment of family units.(1) A 

spouse or child of a principal alien who 

arrived in the United States 

concurrently with the principal alien 

shall be included in that alien’s positive 

fear evaluation and determination, 

unless the principal alien declines such 

inclusion. However, any alien may have 

his or her evaluation and determination 

made separately, if he or she expresses 

such a desire. 

(2) The asylum officer in his or her 

discretion may also include other 

accompanying family members who 

arrived in the United States 

concurrently with a principal alien in 

that alien’s positive fear evaluation and 

determination for purposes of family 

unity. 

(3) For purposes of family units in 

credible fear determinations, the 

definition of ‘‘child’’ means an 

unmarried person under 21 years of age. 

(d) Interview. A USCIS asylum officer 

will conduct the credible fear interview 

in a nonadversarial manner, separate 

and apart from the general public. The 

purpose of the interview shall be to 

elicit all relevant and useful information 

bearing on whether the alien can 

establish a credible fear of persecution 

or torture. The information provided 

during the interview may form the basis 

of an asylum application pursuant to 

paragraph (f) of this section and 

§ 208.3(a)(2). The asylum officer shall 

conduct the interview as follows: 

* * * * * 

(e) Determination. (1) The asylum 

officer shall create a written record of 

his or her determination, including a 

summary of the material facts as stated 

by the applicant, any additional facts 

relied on by the officer, and the officer’s 

determination of whether, in light of 

such facts, the alien has established a 

credible fear of persecution or torture. 

(2) An alien will be found to have a 

credible fear of persecution if there is a 


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significant possibility, taking into 

account the credibility of the statements 

made by the alien in support of the 

alien’s claim and such other facts as are 

known to the officer, the alien can 

establish eligibility for asylum under 

section 208 of the Act or for 

withholding of removal under section 

241(b)(3) of the Act. However, prior to 

January 1, 2030, in the case of an alien 

physically present in or arriving in the 

Commonwealth of the Northern Mariana 

Islands, the officer may only find a 

credible fear of persecution if there is a 

significant possibility that the alien can 

establish eligibility for withholding of 

removal pursuant to section 241(b)(3) of 

the Act. 

(3) An alien will be found to have a 

credible fear of torture if the alien shows 

that there is a significant possibility that 

he or she is eligible for withholding of 

removal or deferral of removal under the 

Convention Against Torture, pursuant to 

§ 208.16 or § 208.17. 

(4) In determining whether the alien 

has a credible fear of persecution, as 

defined in section 235(b)(1)(B)(v) of the 

Act, or a credible fear of torture, the 

asylum officer shall consider whether 

the alien’s case presents novel or unique 

issues that merit a positive credible fear 

finding pursuant to paragraph (f) of this 

section in order to receive further 

consideration of the application for 

asylum and withholding of removal. 

(5)(i)(A) Except as provided in 

paragraphs (e)(5)(ii) through (iv) or 

paragraph (e)(6) or (7) of this section, if 

an alien is able to establish a credible 

fear of persecution or torture but 

appears to be subject to one or more of 

the mandatory bars to applying for, or 

being granted, asylum contained in 

section 208(a)(2) and (b)(2) of the Act, 

or to withholding of removal contained 

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

Department of Homeland Security shall 

nonetheless retain or refer the alien for 

further consideration of the alien’s 

claim pursuant to paragraph (f) of this 

section, if the alien is not a stowaway. 

If the alien is a stowaway, the 

Department shall place the alien in 

proceedings for consideration of the 

alien’s claim pursuant to § 208.2(c)(3). 

* * * * * 

(6) Prior to any determination 

concerning whether an alien arriving in 

the United States at a U.S.-Canada land 

border port-of-entry or in transit through 

the United States during removal by 

Canada has a credible fear of 

persecution or torture, the asylum 

officer shall conduct a threshold 

screening interview to determine 

whether such an alien is ineligible to 

apply for asylum pursuant to section 

208(a)(2)(A) of the Act and subject to 

removal to Canada by operation of the 

Agreement Between the Government of 

the United States and the Government 

of Canada For Cooperation in the 

Examination of Refugee Status Claims 

from Nationals of Third Countries 

(‘‘Agreement’’). In conducting this 

threshold screening interview, the 

asylum officer shall apply all relevant 

interview procedures outlined in 

paragraph (d) of this section, provided, 

however, that paragraph (d)(2) of this 

section shall not apply to aliens 

described in this paragraph (e)(6). The 

asylum officer shall advise the alien of 

the Agreement’s exceptions and 

question the alien as to applicability of 

any of these exceptions to the alien’s 

case. 

* * * * * 

(ii) If the alien establishes by a 

preponderance of the evidence that he 

or she qualifies for an exception under 

the terms of the Agreement, the asylum 

officer shall make a written notation of 

the basis of the exception, and then 

proceed immediately to a determination 

concerning whether the alien has a 

credible fear of persecution or torture 

under paragraph (d) of this section. 

* * * * * 

(f) Procedures for a positive credible 

fear finding. If an alien, other than an 

alien stowaway, is found to have a 

credible fear of persecution or torture, 

the asylum officer will so inform the 

alien and issue the alien a record of the 

positive credible fear determination, 

including copies of the asylum officer’s 

notes, the summary of the material facts, 

and other materials upon which the 

determination was based. The 

documents may be served in-person, by 

mail, or electronically. USCIS will 

retain jurisdiction over the application 

for asylum pursuant to § 208.2(a)(1)(ii) 

for further consideration in a hearing 

pursuant to § 208.9 or refer for 

consideration of the asylum and 

withholding of removal claim in 

proceedings under section 240 of the 

Act. If an alien stowaway is found to 

have a credible fear of persecution or 

torture, the asylum officer will so 

inform the alien and issue a Form I–863, 

Notice of Referral to Immigration Judge, 

for full consideration of the asylum 

claim, or the withholding of removal 

claim, in proceedings under § 208.2(c). 

Parole of the alien may be considered 

only in accordance with section 

212(d)(5) of the Act and 8 CFR 212.5. 

(g) Procedures for a negative credible 

fear finding. (1) If an alien is found not 

to have a credible fear of persecution or 

torture, the asylum officer shall provide 

the alien with a written notice of 

decision and issue the alien a record of 

the credible fear determination, 

including copies of the asylum officer’s 

notes, the summary of the material facts, 

and other materials upon which the 

determination was based. The 

documents may be served in-person, by 

mail, or electronically. The asylum 

officer shall inquire whether the alien 

wishes to have an immigration judge 

review the negative decision, which 

shall include an opportunity for the 

alien to be heard and questioned by the 

immigration judge as provided for under 

section 235(b)(1)(B)(iii)(III) of the Act, 

using Form I–869, Record of Negative 

Credible Fear Finding and Request for 

Review by Immigration Judge. The alien 

shall indicate whether he or she desires 

such review on Form I–869. A refusal by 

the alien to make such indication shall 

be considered a request for review. 

(i) If the alien requests such review, 

or refuses to either request or decline 

such review, the asylum officer shall 

serve him or her with a Form I–863, 

Notice of Referral to Immigration Judge, 

for review of the credible fear 

determination in accordance with 

paragraph (g)(2) of this section. Once the 

asylum officer has served the alien with 

Form I–863, the immigration judge shall 

have sole jurisdiction to review whether 

the alien has established a credible fear 

of persecution or torture, and an asylum 

officer may not reconsider or reopen the 

determination. 

(ii) If the alien is not a stowaway and 

does not request a review by an 

immigration judge, the officer shall 

order the alien removed and issue a 

Form I–860, Notice and Order of 

Expedited Removal, after review by a 

supervisory asylum officer. 

(iii) If the alien is a stowaway and the 

alien does not request a review by an 

immigration judge, the asylum officer 

shall refer the alien to the district 

director for completion of removal 

proceedings in accordance with section 

235(a)(2) of the Act. 

(2)(i) Immigration judges will review 

negative credible fear findings as 

provided in 8 CFR 1003.42 and 

1208.30(g). 

(ii) The record of the negative credible 

fear determination, including copies of 

the Form I–863, the asylum officer’s 

notes, the summary of the material facts, 

and other materials upon which the 

determination was based shall be 

provided to the immigration judge with 

the negative determination. 

PART 235—INSPECTION OF PERSONS 

APPLYING FOR ADMISSION 

■ 14. The authority citation for part 235 

is revised to read as follows: 


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Authority: 8 U.S.C. 1101 and note, 1103, 

1183, 1185 (pursuant to E.O. 13323, 69 FR 

241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 

1225, 1226, 1228, 1365a note, 1365b, 1379, 

1731–32; 48 U.S.C. 1806, 1807, and 1808 and 

48 U.S.C. 1806 notes (Title VII of Pub. L. 

110–229, 122 Stat. 754); 8 U.S.C. 1185 note 

(section 7209 of Pub. L. 108–458, 118 Stat. 

3638 and Pub. L. 112–54, 125 Stat. 550). 

■ 15. Amend § 235.3 by revising 

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

read as follows: 

§ 235.3 Inadmissible aliens and expedited 

removal. 

* * * * * 

(b) * * * 

(2) * * * 

(iii) Detention and parole of alien in 

expedited removal. An alien whose 

inadmissibility is being considered 

under this section or who has been 

ordered removed pursuant to this 

section shall be detained pending 

determination and removal. Parole of 

such alien, in accordance with section 

212(d)(5) of the Act and § 212.5 of this 

chapter, may be permitted only when 

DHS determines, in the exercise of 

discretion, that parole is required to 

meet a medical emergency, for a 

legitimate law enforcement objective, or 

because detention is unavailable or 

impracticable (including situations in 

which continued detention would 

unduly impact the health or safety of 

individuals with special 

vulnerabilities). 

* * * * * 

(4) * * * 

(ii) Detention pending credible fear 

interview. Pending the credible fear 

determination by an asylum officer and 

any review of that determination by an 

immigration judge, the alien shall be 

detained. Parole of such alien, in 

accordance with section 212(d)(5) of the 

Act and § 212.5 of this chapter, may be 

permitted only when DHS determines, 

in the exercise of discretion, that parole 

is required to meet a medical 

emergency, for a legitimate law 

enforcement objective, or because 

detention is unavailable or 

impracticable (including situations in 

which continued detention would 

unduly impact the health or safety of 

individuals with special 

vulnerabilities). A grant of parole would 

be for the limited purpose of parole out 

of custody and cannot serve as an 

independent basis for employment 

authorization under § 274a.12(c)(11) of 

this chapter. Prior to the interview, the 

alien shall be given time to contact and 

consult with any person or persons of 

his or her choosing. If the alien is 

detained, such consultation shall be 

made available in accordance with the 

policies and procedures of the detention 

facility where the alien is detained, 

shall be at no expense to the 

Government, and shall not unreasonably 

delay the process. 

* * * * * 

■ 16. Amend § 235.6 by: 

■ a. Removing and reserving paragraphs 

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

■ b. Revising paragraph (a)(2)(i); 

■ c. Removing the period at the end of 

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

its place; and 

■ d. Revising paragraph (a)(2)(iii). 

The revisions read as follows: 

§ 235.6 Referral to immigration judge. 

(a) * * * 

(2) * * * 

(i) If an asylum officer determines that 

the alien does not have a credible fear 

of persecution or torture, and the alien 

requests a review of that determination 

by an immigration judge; 

* * * * * 

(iii) If an immigration officer refers an 

applicant in accordance with the 

provisions of § 208.2(c)(1) or (2) of this 

chapter to an immigration judge for an 

asylum- or withholding-only hearing. 

* * * * * 

DEPARTMENT OF JUSTICE 

Accordingly, for the reasons set forth 

in the preamble, the Attorney General 

proposes to amend 8 CFR parts 1003, 

1208, and 1235 as follows: 

PART 1003—EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW 

■ 17. 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. 

■ 18. Amend § 1003.1 by adding 

paragraph (b)(15) to read as follows: 

§ 1003.1 Organization, jurisdiction, and 

powers of the Board of Immigration 

Appeals. 

* * * * * 

(b) * * * 

(15) Decisions of immigration judges 

in proceedings pursuant to § 1003.48, 

including immigration judges’ decisions 

on motions under § 1003.48(d) to vacate 

removal orders. Immigration judges’ 

decisions denying applications because 

the applicant failed to appear cannot be 

appealed, but immigration judges’ 

decisions on motions to reopen and 

motions to reconsider can be appealed. 

* * * * * 

■ 19. Amend § 1003.12 by revising the 

second sentence to read as follows: 

§ 1003. 12 Scope of rules. 

* * * Except where specifically 

stated, the rules in this subpart apply to 

matters before immigration judges, 

including, but not limited to: 

Deportation, exclusion, removal, bond, 

rescission, departure control, asylum 

proceedings (including application 

review proceedings under § 1003.48), 

and disciplinary proceedings. * * * 

■ 20. Add § 1003.48 to read as follows: 

§ 1003.48 Review of applications denied 

after a positive credible fear determination. 

(a) Scope. In proceedings conducted 

under this section, immigration judges 

shall have the authority, upon the 

request of an applicant under 8 CFR 

208.14(c)(5), to review asylum officers’ 

decisions on applications for asylum 

under section 208 of the Act, 

withholding of removal under section 

241(b)(3) of the Act, and withholding or 

deferral of removal under the 

Convention Against Torture. Where an 

asylum officer grants one application 

but denies another, the immigration 

judge has the authority to review both 

the denial and the grant. An 

immigration judge shall not have the 

authority in these proceedings to 

consider an application for a form of 

relief and protection other than those 

listed in the first sentence of this 

paragraph (a), or to review an asylum 

officer’s inadmissibility determination 

under section 235(b)(1)(A)(i) of the Act. 

However, an applicant can file a motion 

to vacate a removal order as specified in 

paragraph (d) of this section. 

(b) Commencement of proceedings. 

Proceedings under this section shall 

commence when DHS files with the 

Immigration Court the documents 

identified in paragraphs (b)(1) through 

(4) of this section: 

(1) A Notice of Referral to the 

immigration judge; 

(2) A copy of the record of 

proceedings before the asylum officer, 

as outlined in 8 CFR 208.9(f); 

(3) The asylum officer’s written 

decision, including the removal order 

issued under 8 CFR 208.14(c)(5) by the 

asylum officer; and 

(4) Proof that the Notice of Referral, 

the record of proceedings, and the 

written decision, including the removal 

order, have been served on the 

applicant, which may consist of service 

via mail. 

(c) Proceedings before the 

immigration judge. After a Notice of 


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Referral is filed with the immigration 

court, the case shall be scheduled for a 

hearing, and a hearing notice shall be 

served on the parties. 

(d) Motion to vacate removal order. 

The applicant may file a motion with 

the immigration judge to vacate the 

asylum officer’s order of removal. For 

the motion to be granted, the applicant 

must show that he or she is prima facie 

eligible for a form of relief or protection 

under the Act that cannot be considered 

in proceedings under this section. If the 

applicant makes such a showing, the 

immigration judge may, in the exercise 

of his or her discretion, grant the 

motion. If the immigration judge grants 

the motion, DHS may, in the exercise of 

its discretion, place the applicant in 

removal proceedings, by issuing a 

Notice to Appear and filing it with the 

immigration court. An applicant may 

file only one such a motion, and the 

motion must be filed before the 

immigration judge issues a decision 

under paragraph (e) of this section. A 

motion to vacate to apply for voluntary 

departure under section 240B of the Act 

shall be denied. 

(e) Immigration judge review. (1) The 

immigration judge shall determine, de 

novo, whether the applicant qualifies 

for the relief or protection at issue and, 

if applicable, whether the applicant 

merits relief in the exercise of 

discretion. In reaching a decision in 

proceedings under this section, the 

immigration judge shall review the 

record created before the asylum officer, 

as well as the asylum officer’s decision. 

Either party may provide additional 

testimony and documentation, but the 

party must establish that the testimony 

or documentation is not duplicative of 

testimony or documentation already 

presented to the asylum officer, and that 

the testimony or documentation is 

necessary to ensure a sufficient factual 

record upon which to base a reasoned 

decision on the application or 

applications. The immigration judge 

shall not have the authority to remand 

the case to the asylum officer. 

(2) If the immigration judge grants the 

applicant asylum under section 208 of 

the Act, the immigration judge shall 

issue orders granting the application 

and vacating the removal order issued 

by an asylum officer under 8 CFR 

208.14(c)(5). If the immigration judge 

grants the application for withholding of 

removal under section 241(b)(3) of the 

Act, or withholding or deferral of 

removal under the Convention Against 

Torture, the immigration judge shall 

issue an order granting the application 

at issue, but shall not vacate the removal 

order issued by the asylum officer under 

8 CFR 208.14(c)(5). 

(f) Failure to appear. (1) If the 

applicant fails to appear at a hearing in 

proceedings conducted under this 

section, and DHS establishes by clear, 

unequivocal, and convincing evidence 

that written notice of the hearing was 

served on the applicant, the 

immigration judge shall deny the 

application or applications under 

review. There is no appeal from an 

immigration judge’s decision denying 

an application or applications for failure 

to appear. However, following such a 

decision, the applicant may file a 

motion to reopen with the immigration 

judge. In the motion, the applicant must 

establish that: 

(i) The failure to appear was because 

of exceptional circumstances (such as 

battery or extreme cruelty to the 

applicant or any child or parent of the 

applicant, serious illness of the 

applicant, or serious illness or death of 

the spouse, child, or parent of the 

applicant, but not including less 

compelling circumstances) beyond the 

control of the applicant; 

(ii) The applicant did not receive 

notice of the hearing; or 

(iii) The applicant was in Federal or 

State custody at the time of the hearing, 

and the failure to appear was through no 

fault of the applicant. 

(2) A motion filed under paragraph 

(f)(1)(i) of this section must be filed 

within 180 days of the hearing. A 

motion filed under paragraph (f)(1)(ii) or 

(iii) of this section may be filed at any 

time. When a motion under this 

paragraph (f) is granted, the applicant’s 

proceedings under this section are 

reopened. The granting of such a motion 

does not entitle the applicant to be 

placed in removal proceedings. 

PART 1208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL 

■ 21. The authority section 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. 

■ 22. Amend § 1208.2 by: 

■ a. Revising paragraph (a); 

■ b. Revising the last sentence of 

paragraph (b); 

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

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

■ d. Removing the period at the end of 

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

in its place; 

■ e. Removing and reserving paragraph 

(c)(1)(ix); 

■ f. Adding paragraph (c)(1)(x); and 

■ g. In paragraph (c)(3)(i): 

■ i. Adding the words ‘‘and in 8 CFR 

1003.48’’ after the words ‘‘Except as 

provided in this section’’; and 

■ ii. Removing ‘‘paragraph (c)(1) or 

(c)(2)’’ and adding ‘‘paragraph (c)(1) or 

(2)’’ in its place. 

The revisions and addition read as 

follows: 

§ 1208.2 Jurisdiction. 

(a) U.S. Citizenship and Immigration 

Services (USCIS). (1) Except as provided 

in paragraph (b) or (c) of this section, 

USCIS shall have initial jurisdiction 

over: 

(i) An asylum application filed by an 

alien physically present in the United 

States or seeking admission at a port-ofentry; and 

(ii) Hearings provided in accordance 

with section 235(b)(1)(B)(ii) of the Act to 

further consider the application for 

asylum of an alien, other than a 

stowaway, found to have a credible fear 

of persecution or torture in accordance 

with 8 CFR 208.30(f) and retained by 

USCIS, or referred to USCIS by an 

immigration judge pursuant to 

§§ 1003.42 of this chapter and 1208.30 

after the immigration judge has vacated 

a negative credible fear determination. 

Hearings to further consider 

applications for asylum under this 

paragraph (a)(1)(ii) are governed by the 

procedures provided for under 8 CFR 

208.9. Further consideration of an 

asylum application filed by a stowaway 

who has received a positive credible 

fear determination will be under the 

jurisdiction of an immigration judge 

pursuant to paragraph (c) of this section. 

(2) USCIS shall also have initial 

jurisdiction over credible fear 

determinations under 8 CFR 208.30 and 

reasonable fear determinations under 8 

CFR 208.31. 

(b) * * * Immigration judges shall 

also have the authority to review 

credible fear determinations referred to 

the Immigration Court under § 1208.30, 

reasonable fear determinations referred 

to the Immigration Court under 

§ 1208.31, and asylum officers’ 

decisions on applications, under 8 CFR 

208.14(c)(5), referred to the Immigration 

Court for review under § 1003.48 of this 

chapter. 

(c) * * * 

(1) * * * 

(x) An alien referred for proceedings 

under § 1003.48 of this chapter on or 

after [effective date of the final rule]. 

* * * * * 

■ 23. Amend § 1208.3 by revising 

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

follows: 


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§ 1208.3 Form of application. 

(a)(1) Except for applicants described 

in paragraph (a)(2) of this section, an 

asylum applicant must file Form I–589, 

Application for Asylum and for 

Withholding of Removal, together with 

any additional supporting evidence in 

accordance with the instructions on the 

form. The applicant’s spouse and 

children shall be listed on the 

application and may be included in the 

request for asylum if they are in the 

United States. One additional copy of 

the principal applicant’s Form I–589 

must be submitted for each dependent 

included in the principal’s application. 

(2) In proceedings under § 1003.48 of 

this chapter, the written record of a 

positive credible fear finding issued in 

accordance with 8 CFR 208.30(f), 

§ 1003.42 of this chapter, or § 1208.30 

shall be construed as the asylum 

application and satisfies the application 

filing requirements in paragraph (a)(1) 

of this section and § 1208.4(b). The 

written record of the positive credible 

fear determination shall be considered a 

complete asylum application for 

purposes of § 1208.4(a), with the date of 

service of the positive credible fear 

determination on the alien considered 

the date of filing and receipt, and shall 

be subject to the conditions and 

consequences provided for in paragraph 

(c) of this section following the 

applicant’s signature at the asylum 

hearing before the USCIS asylum officer. 

The applicant’s spouse and children 

may be included in the request for 

asylum only if they were included in 

the credible fear determination pursuant 

to 8 CFR 208.30(c). The asylum 

applicant may subsequently seek to 

amend, correct, or supplement the 

record of proceedings created before the 

asylum officer or during the credible 

fear review process, but must otherwise 

meet the requirements of § 1003.48(e) of 

this chapter concerning new 

documentation or testimony. 

* * * * * 

(c) * * * 

(3) An asylum application under 

paragraph (a)(1) of this section must be 

properly filed in accordance with the 

form instructions and with §§ 1003.24, 

1003.31(b), and 1103.7(a)(3) of this 

chapter, including payment of a fee, if 

any, as explained in the instructions to 

the application. For purposes of filing 

with an immigration court, an asylum 

application is incomplete if it does not 

include a response to each of the 

required questions contained in the 

form, is unsigned, is unaccompanied by 

the required materials specified in 

paragraph (a) of this section, is not 

completed and submitted in accordance 

with the form instructions, or is 

unaccompanied by any required fee 

receipt or other proof of payment as 

provided in § 1208.4(d)(3). The filing of 

an incomplete application shall not 

commence the period after which the 

applicant may file an application for 

employment authorization. An 

application that is incomplete shall be 

rejected by the Immigration Court. If an 

applicant wishes to have his or her 

application for asylum considered, he or 

she shall correct the deficiencies in the 

incomplete application and refile it 

within 30 days of rejection. Failure to 

correct the deficiencies in an 

incomplete application or failure to 

timely refile the application with the 

deficiencies corrected, absent 

exceptional circumstances as defined in 

§ 1003.10(b) of this chapter, shall result 

in a finding that the alien has 

abandoned that application and waived 

the opportunity to file such an 

application; 

* * * * * 

§ 1208.4 [Amended] 

■ 24. Amend § 1208.4 by adding the 

words ‘‘, except that an alien in a review 

proceeding under § 1003.48 of this 

chapter is not required to file the Form 

I–589’’ after the word ‘‘case’’ in 

paragraph (b)(3)(iii). 

§ 1208.5 [Amended] 

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

the reference ‘‘§ 1212.5 of this chapter’’ 

and adding ‘‘8 CFR 212.5’’ in its place. 

■ 26. Amend § 1208.14 by: 

■ a. Removing ‘‘the Office of 

International Affairs’’ and adding in its 

place ‘‘USCIS’’ in paragraph (b); 

■ b. Revising paragraphs (c) 

introductory text and (c)(1); and 

■ c. Adding paragraph (c)(5). 

The revisions and addition read as 

follows: 

§ 1208.14 Approval, denial, referral, or 

dismissal of application. 

* * * * * 

(c) Denial, referral, or dismissal by an 

asylum officer. If the asylum officer does 

not grant asylum to an applicant after an 

interview or hearing conducted in 

accordance with 8 CFR 208.9, or if, as 

provided in 8 CFR 208.10, the applicant 

is deemed to have waived his or her 

right to an interview, a hearing, or an 

adjudication by an asylum officer, the 

asylum officer shall deny, refer, or 

dismiss the application, as follows: 

(1) Inadmissible or deportable aliens. 

Except as provided in paragraph (c)(4) 

or (5) of this section, in the case of an 

applicant who appears to be 

inadmissible or deportable under 

section 212(a) or 237(a) of the Act, the 

asylum officer shall refer the application 

to an immigration judge, together with 

the appropriate charging document, for 

adjudication in removal proceedings (or, 

where charging documents may not be 

issued, shall dismiss the application). 

* * * * * 

(5) Alien referred for consideration of 

asylum application in a hearing before 

an asylum officer after positive credible 

fear finding. In the case of an 

application within the jurisdiction of 

USCIS pursuant to 8 CFR 208.2(a)(1)(ii), 

the asylum officer shall deny the 

application for asylum. The applicant 

will be provided a written notice of the 

decision. The decision will also include 

an order of removal based on the 

immigration officer’s inadmissibility 

determination under section 

235(b)(1)(A)(i) of the Act and a decision 

on any request for withholding of 

removal under 8 CFR 208.16(d) and 

deferral of removal under 8 CFR 208.17, 

where applicable. The notice shall 

explain that the alien may seek to have 

an immigration judge review the 

decision, in accordance with § 1003.48 

of this chapter. The alien shall have 30 

days to affirmatively request such 

review as directed on the decision 

notice. The failure to timely request 

further review will be processed as the 

alien’s decision not to request review. 

(i) If the alien requests such 

immigration judge review, USCIS will 

serve the alien with a notice of referral 

to an immigration judge for review of 

the asylum application. USCIS shall 

provide the record of the proceedings 

before the asylum officer, as outlined in 

8 CFR 208.9(f), to the immigration judge 

and the alien, along with the written 

notice of decision, including the order 

of removal issued by the asylum officer, 

and the alien’s request for review. 

(ii) If the alien does not request a 

review by an immigration judge, the 

decision and order of removal will be 

final and the alien shall be subject to 

removal from the United States. 

(iii) Once USCIS has commenced 

proceedings under § 1003.48 of this 

chapter by filing the notice of referral on 

the alien, the immigration judge has sole 

jurisdiction to review the application, 

and an asylum officer may not reopen 

or reconsider the application once it has 

been referred to the immigration judge. 

* * * * * 

■ 27. Amend § 1208.16 by revising 

paragraph (a) to read as follows: 

§ 1208.16 Withholding of removal under 

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

withholding of removal under the 

Convention Against Torture. 

(a) Consideration of application for 

withholding of removal. An asylum 


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officer shall not decide whether the 

exclusion, deportation, or removal of an 

alien to a country where the alien’s life 

or freedom would be threatened must be 

withheld, except in the case of an alien 

who is determined to be an applicant for 

admission under section 235(b)(1) of the 

Act, is found to have a credible fear of 

persecution or torture, and whose case 

is subsequently retained by or referred 

to USCIS pursuant to the jurisdiction 

provided at 8 CFR 208.2(a)(1)(ii) to 

consider the application for asylum, and 

that application for asylum is denied. In 

exclusion, deportation, or removal 

proceedings, an immigration judge may 

adjudicate both an asylum claim and a 

request for withholding of removal, 

whether or not asylum is granted. 

* * * * * 

■ 28. Amend § 1208.18 by revising 

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

§ 1208.18 Implementation of the 

Convention Against Torture. 

* * * * * 

(b) * * * 

(1) Aliens in proceedings on or after 

March 22, 1999. (i) An alien who is in 

exclusion, deportation, or removal 

proceedings on or after March 22, 1999, 

may apply for withholding of removal 

under § 1208.16(c), and, if applicable, 

may be considered for deferral of 

removal under § 1208.17(a). 

(ii) In addition, an alien may apply for 

withholding of removal under 8 CFR 

208.16(c), and, if applicable, may be 

considered for deferral of removal under 

8 CFR 208.17(a), in the following 

situation: the alien is determined to be 

an applicant for admission under 

section 235(b)(1) of the Act, the alien is 

found to have a credible fear of 

persecution or torture, and the alien’s 

case is subsequently retained by or 

referred to USCIS pursuant to the 

jurisdiction provided at 8 CFR 

208.2(a)(1)(ii) to consider the 

application for asylum, and that 

application for asylum is denied. 

* * * * * 

§ 1208.19 [Removed and Reserved] 

■ 29. Remove and reserve § 1208.19. 

■ 30. Revise § 1208.22 to read as 

follows: 

§ 1208.22 Effect on exclusion, deportation, 

and removal proceedings. 

An alien who has been granted 

asylum may not be deported or removed 

unless his or her asylum status is 

terminated pursuant to 8 CFR 208.24 or 

§ 1208.24. An alien who is granted 

withholding of removal or deportation, 

or deferral of removal, may not be 

deported or removed to the country to 

which his or her deportation or removal 

is ordered withheld or deferred unless 

the withholding order is terminated 

pursuant to 8 CFR 208.24 or § 1208.24 

or deferral is terminated pursuant to 8 

CFR 208.17 or § 1208.17(d) or (e). 

■ 31. Amend § 1208.30 by revising the 

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

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

§ 1208.30 Credible fear of persecution or 

torture determinations involving stowaways 

and applicants for admission who are found 

inadmissible pursuant to section 

212(a)(6)(C) or 212(a)(7) of the Act. 

(a) Jurisdiction. The provisions of this 

subpart apply to aliens subject to 

sections 235(a)(2) and 235(b)(1) of the 

Act. Pursuant to section 235(b)(1)(B) of 

the Act, DHS has exclusive jurisdiction 

to make the determinations described in 

this subpart. Except as otherwise 

provided in this subpart, paragraphs (b) 

through (g) of this section are the 

exclusive procedures applicable to 

stowaways and applicants for admission 

who are found inadmissible pursuant to 

section 212(a)(6)(C) or 212(a)(7) of the 

Act and who receive fear interviews, 

determinations, and reviews under 

section 235(b)(1)(B) of the Act. Prior to 

January 1, 2030, an alien physically 

present in or arriving in the 

Commonwealth of the Northern Mariana 

Islands is ineligible to apply for asylum 

and may only establish eligibility for 

withholding of removal pursuant to 

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

withholding or deferral of removal 

under the regulations in §§ 1208.16(c) 

through (f), 1208.17, and 1208.18 issued 

pursuant to the Convention Against 

Torture’s implementing legislation. 

* * * * * 

(e) Determination. For the standards 

and procedures for asylum officers in 

conducting credible fear interviews and 

hearings, and in making positive and 

negative credible fear determinations, 

see 8 CFR 208.30. The immigration 

judges will review such determinations 

as provided in paragraph (g) of this 

section and 8 CFR 1003.42 and 1003.48. 

* * * * * 

(g) * * * 

(2) Review by immigration judge of a 

negative credible fear finding. (i) The 

asylum officer’s negative decision 

regarding credible fear shall be subject 

to review by an immigration judge upon 

the applicant’s request, or upon the 

applicant’s refusal either to request or to 

decline the review after being given 

such opportunity, in accordance with 

section 235(b)(1)(B)(iii)(III) of the Act. 

The immigration judge shall not have 

the authority to remand the case to the 

asylum officer. 

(ii) The record of the negative credible 

fear determination, including copies of 

the Form I–863, the asylum officer’s 

notes, the summary of the material facts, 

and other materials upon which the 

determination was based shall be 

provided to the immigration judge with 

the negative determination. 

(iii) A credible fear hearing shall be 

closed to the public unless the alien 

states for the record or submits a written 

statement that the alien is waiving that 

requirement; in that event the hearing 

shall be open to the public, subject to 

the immigration judge’s discretion as 

provided in 8 CFR 1003.27. 

(iv) Upon review of the asylum 

officer’s negative credible fear 

determination: 

(A) If the immigration judge concurs 

with the determination of the asylum 

officer that the alien does not have a 

credible fear of persecution or torture, 

the case shall be returned to DHS for 

removal of the alien. The immigration 

judge’s decision is final and may not be 

appealed. 

(B) If the immigration judge finds that 

the alien, other than an alien stowaway, 

possesses a credible fear of persecution 

or torture, the immigration judge shall 

vacate the Notice and Order of 

Expedited Removal and refer the case 

back to DHS for further proceedings 

consistent with § 1208.2(a)(1)(ii). 

Alternatively, DHS may commence 

removal proceedings under section 240 

of the Act, during which time the alien 

may file an application for asylum and 

withholding of removal in accordance 

with § 1208.4(b)(3)(i). 

(C) If the immigration judge finds that 

an alien stowaway possesses a credible 

fear of persecution or torture, the alien 

shall be allowed to file an application 

for asylum and withholding of removal 

before the immigration judge in 

accordance with § 1208.4(b)(3)(iii). The 

immigration judge shall decide the 

application as provided in that section. 

Such decision may be appealed by 

either the stowaway or DHS to the 

Board of Immigration Appeals. If a 

denial of the application for asylum and 

for withholding of removal becomes 

final, the alien shall be removed from 

the United States in accordance with 

section 235(a)(2) of the Act. If an 

approval of the application for asylum 

or for withholding of removal becomes 

final, DHS shall terminate removal 

proceedings under section 235(a)(2) of 

the Act. 

PART 1235—INSPECTION OF 

PERSONS APPLYING FOR ADMISSION 

■ 32. The authority citation for part 

1235 continues to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1103, 

1183, 1185 (pursuant to E.O. 13323, 69 FR 


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46950 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 

241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 

1225, 1226, 1228, 1365a note, 1379, 1731–32; 

Title VII of Pub. L. 110–229; 8 U.S.C. 1185 

note (section 7209 of Pub. L. 108–458); 

Public Law 115–218. 

■ 33. Amend § 1235.6 by: 

■ a. Revising paragraph (a)(2)(i); 

■ b. Removing the period at the end of 

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

its place; and 

■ c. Revising paragraph (a)(2)(iii). 

The revisions read as follows: 

§ 1235.6 Referral to immigration judge. 

(a) * * * 

(2) * * * 

(i) If an asylum officer determines that 

the alien does not have a credible fear 

of persecution or torture, and the alien 

requests a review of that determination 

by an immigration judge; 

* * * * * 

(iii) If an immigration officer refers an 

applicant in accordance with the 

provisions of 8 CFR 208.2(b) to an 

immigration judge. 

* * * * * 

Alejandro N. Mayorkas, 

Secretary of Homeland Security. 

Dated: August 13, 2021. 

Merrick B. Garland, 

Attorney General. 

[FR Doc. 2021–17779 Filed 8–18–21; 8:45 am] 

BILLING CODE 9111–97–P 


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