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This document is scheduled to be published in the Federal Register on 08/20/2021 and available online at Billing Code: 9111-97-P federalregister.gov/d/2021-17779, and on govinfo.gov 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 before [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 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 e-mails 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 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 e-mails 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 e-mail 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 claims2 made by 1 See 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/BorderSecurity-ControltoCrisis-Report-Final.pdf
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