Asylum Officer NPRM RIN 1615-AC67

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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
Executive Office for
Immigration Review, Department of
Justice; U.S. Citizenship and
Immigration Services, Department of
Homeland Security.
ACTION: Notice of proposed rulemaking.
AGENCY:

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

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SUMMARY:

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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).

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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
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

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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/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

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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
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.’’).
2 The 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).
3 See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Public Law 104–208,
div. C, 110 Stat. 3009, 3009–546 (1996) (‘‘IIRIRA’’).
4 The 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

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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
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).
5 See 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).
6 See infra note 24.

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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
7 See 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.
8 For 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).

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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
9 Office 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.
11 U.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.
13 Mike 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.

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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
14 United 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).
15 Bruno, 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).
16 EOIR, 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.
17 EOIR, Executive Office for Immigration Review
Adjudication Statistics: Total Asylum Applications
(Apr. 19, 2021), https://www.justice.gov/eoir/page/
file/1106366/download.
18 EOIR, Executive Office for Immigration Review
Adjudication Statistics: Immigration Judge (IJ)
Hiring (Apr. 2021), https://www.justice.gov/eoir/
page/file/1242156/download.
19 EOIR, 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.

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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

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20 According

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.
21 See 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.

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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
23 Id.

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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
24 On 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.

at 65808.

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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
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.
25 Section 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.

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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
26 See 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

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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
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).
28 According 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.
29 The 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

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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
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.
30 See supra note 4.

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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

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46911

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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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

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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

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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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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

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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
31 See supra note 24 (discussing the status of
more recent regulatory changes).

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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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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.

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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
32 As 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.
33 See supra note 24.

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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

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).
37 These 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.
38 This 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

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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
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.
39 The 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.

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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

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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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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
40 EOIR, 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.

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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
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.
42 While 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

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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
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.

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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
43 See 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.

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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).
47 See 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.’’).

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46917

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
48 The 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.’’).

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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:

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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
49 USCIRF, 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.
50 USCIRF, 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.
51 Administrative 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.

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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
53 Id.

at 26.
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.
54 HSAC,

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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

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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

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‘‘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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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
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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
56 See, 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.’’).
57 See, 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).

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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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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
58 A 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)).
59 The 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

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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
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).

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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
60 USCIS 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.

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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
61 See 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).

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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
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.

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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

46923

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

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Individuals who receive a positive credible fear determination.

Annual population estimate
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.

Potential impacts
• 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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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
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.

DHS–USCIS ..............................

EOIR ..........................................

Support networks for asylum
applicants who receive a
positive credible fear determination.
Other ..........................................

• Parole may result in more individuals failing to appear for hearings.
• 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.
555 current IJs as well as sup- • EOIR only reviews on appeal and will no longer adjudicate asylum claims raised in expedited
port staff and other personnel.
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.
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’’).
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.
N/A ............................................

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
Primary
estimate

Category

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

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Unquantified benefits .............................................................................

63 OMB, Circular A–4 (2003), https://
www.whitehouse.gov/sites/whitehouse.gov/files/

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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.
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.

omb/circulars/A4/a-4.pdf (last viewed June 1,
2021).

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Regulatory
(‘‘RIA’’).

Impact

Analysis

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TABLE 2—OMB A–4 ACCOUNTING STATEMENT—Continued
[$ millions, 2020]
Time Period: 2022–2031
Primary
estimate

Category

I

Minimum
estimate

I

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.
• 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

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

Effects on State, local, or Tribal governments ......................................

N/A

RIA.

Transfers

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Effects on small businesses ..................................................................

This proposed rule does not directly regulate small
entities, but rather individuals.

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

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border and the ability of the U.S. asylum
system to fairly and efficiently handle
protection claims made by those
encountered. The proposed rule

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streamlines and simplifies the
adjudication process for certain
individuals who are encountered at or
near the border, placed into expedited

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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
Form I–589 receipts
FY

2016
2017
2018
2019
2020

Initial
receipts

Pending
receipts

Credible fear completions
Positive
screen

Negative
screen

All
completions

Total credible
fear cases 65

.........................................................................
.........................................................................
.........................................................................
.........................................................................
.........................................................................

115,888
142,760
106,041
96,861
93,134

194,986
289,835
319,202
349,158
386,014

73,081
60,566
74,677
75,252
12,824

9,697
8,245
9,659
16,679
16,134

82,778
68,811
84,336
91,931
28,958

94,048
79,842
99,035
102,204
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

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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.
65 The 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
66 Calculation: Positive completions total
296,400/total completions (296,400 + 60,414) =

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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
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).

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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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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]
Detained
FY

Non-detained

Screen
Average

2016 ..................................................
2017 ..................................................
2018 ..................................................
2019 ..................................................
2020 ..................................................
2021 ..................................................

Positive .............................................
Negative ...........................................
Positive .............................................
Negative ...........................................
Positive .............................................
Negative ...........................................
Positive .............................................
Negative ...........................................
Positive .............................................
Negative ...........................................
Positive .............................................
Negative ...........................................

Median

23.3
34
23.3
34.2
22.6
32.3
35.6
44.7
37.2
30.3
25.6
29.8

Average
13
26
13
25
16
25
24
33
20
16
15
17

Median

290.6
197.1
570.1
496.1
816.2
811.7
1230.9
1067.3
1252.7
1311.2
955.3
1174.0

163.0
80.5
407.0
354.0
671.0
668.0
1082.0
959.0
1065.0
1247.0
919.0
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]
EAD category (a)(5)
Granted Asylum Under
Section 208

EAD category (c)(8)
Applicant for
Asylum/Pending
Asylum

FY

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Initial
receipts
2016
2017
2018
2019

.................................................................................
.................................................................................
.................................................................................
.................................................................................

67 Calculations: For 2016, 290.6 average days/23.3
average days = 12.5; for 2021, 1174.0 average days/
25.6 average days = 39.4.

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29,887
32,673
38,743
47,761

Approvals
27,139
29,648
39,598
41,288

Initial
receipts
169,970
261,782
262,965
216,038

Approvals
152,269
234,053
246,525
177,520

68 Calculation: [1¥(955.3 days/1174.0 days)] =
.186, rounded to .19.

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EAD category (a)(10)
Granted Withholding of
Removal/243 (H)
Initial
receipts
2,008
1,936
1,733
2,402

Approvals
1,621
1,076
1,556
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]
EAD category (a)(5)
Granted Asylum Under
Section 208

EAD category (c)(8)
Applicant for
Asylum/Pending
Asylum

FY
Initial
receipts

Approvals

Initial
receipts

Approvals

EAD category (a)(10)
Granted Withholding of
Removal/243 (H)
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
Average
processing time

FY

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 .....................................................................................................................................
2017 .....................................................................................................................................
2018 .....................................................................................................................................
2019 .....................................................................................................................................
2020 .....................................................................................................................................
2021–March 31, 2021 (years) * ...........................................................................................

413
447
648
669
712
1,078 (2.95)

214
252
512
455
502
857 (2.35)

16,794
26,531
33,634
55,404
33,517
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 .....................................................................................................................................
2017 .....................................................................................................................................
2018 .....................................................................................................................................
2019 .....................................................................................................................................
2020 .....................................................................................................................................
2021–March 31, 2021 (years) * ...........................................................................................

514
551
787
822
828
1,283 (3.52)

300
378
690
792
678
1,316 (3.61)

7,519
13,463
19,293
30,052
21,058
3,730

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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.

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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

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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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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
69 See 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).
70 Ernie 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.
71 For 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).

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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
72 The 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).
73 The 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.
74 Calculation: 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).
75 The 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).

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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
76 Calculation: $10 per photo cost × 2.67 photos
per I–589 application = $26.70.
77 Calculation: $205.32 + $26.70 = $232.02;
$338.16 + $26.70 = $364.86; $471.00 + $26.70 =
$497.70.

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their asylum application is pending.
Such applications are subject to a 365day 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
78 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 365-day waiting period.
Such members are subject to the 180-day Asylum
EAD Clock.
79 See 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).

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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
80 USCIS 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.
81 See 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).
83 See 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).
84 Calculations: 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.
85 Calculations: Opportunity cost of time,
effective wage $62.79 + travel cost $28 = $90.79;

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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
Opportunity cost of time, average wage $144.05 +
travel cost $28 = $172.05.
86 Calculations: $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.
87 There 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.

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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

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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
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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
88 Transfer 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).

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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

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89 See

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/81million-americans-wont-pay-any-federal-incometaxes-this-year-heres-why-2018-04-16.
90 Calculation: (6.2 percent Social Security + 1.45
percent Medicare) × 2 employee and employer
losses = 15.3 percent total estimated tax loss to
Government.

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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.

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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
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).
92 Weighted 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.

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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

46933

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

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(A) Staffing ...................................................................................................................................
Payroll ...................................................................................................................................
Non-Payroll ...........................................................................................................................
(B) General Expenses .................................................................................................................
Interpreter Services ..............................................................................................................
Transcription Services ..........................................................................................................
95 Estimate 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.

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96 Note 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.
97 Note that the primary estimate of 2,035 total
new positions is not equal to the average of the

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$140,507
113,602
26,905
39,313
6,615
9,366

150k cases
$355,175
285,983
69,192
83,025
19,136
26,697

300k cases
$806,697
648,257
158,440
145,682
44,179
37,362

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.

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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 ................................................................................................................................
Physical Security ..................................................................................................................
IT Case Management ...........................................................................................................
Other Contract/Supplies/Equipment .....................................................................................

6,635
623
12,500
3,574

17,606
1,654
12,500
5,432

40,865
3,839
12,500
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 ...................................................................................................................................
Payroll ...................................................................................................................................
Non-Payroll ...........................................................................................................................
(B) General Expenses .................................................................................................................
Interpreter Services ..............................................................................................................
Transcription Services ..........................................................................................................
Facilities ................................................................................................................................
Physical Security ..................................................................................................................
IT Case Management ...........................................................................................................
Other Contract/Supplies/Equipment .....................................................................................

$133,427
122,753
10,674
31,267
6,813
9,647
6,834
642
4,375
2,956

$337,047
309,758
27,289
76,554
19,710
27,498
18,134
1,704
4,375
5,133

$766,159
703,852
62,307
141,249
45,504
38,483
42,091
3,954
4,375
6,842

Total ...............................................................................................................................

164,694

413,601

907,408

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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

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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

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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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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

46935

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

Baseline: Fixed price per month ...................................................................
Fixed price per person processed ................................................................
Fixed price per person processed ................................................................
Fixed price per person processed ................................................................
Fixed price per person processed ................................................................

AA
AB
AC
AD
AE

.....................
.....................
....................
....................
.....................

Minimum
volume
0
8,565
20,525
31,753
63,505

Maximum
volume
8,564
20,524
31,752
63,504
95,256

Costs
$25,477.79
6.66
5.94
5.53
5.19

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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

98 While 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.
101 Economies 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.

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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

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.

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

TABLE 10—MONETIZED COSTS OF THE PROPOSED RULE TO USCIS
[In undiscounted 2020 dollars]
Time Period: FYs 2022–2031
Human
resources

FY

General
(non-IT) cost

IT expenditure

Annual total

10A. Lower Population Bound (75k Annual Cases)
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031

.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................

$140,507,000
133,427,000
137,429,810
141,552,704
142,968,231
147,257,278
148,729,851
153,191,747
154,723,664
159,365,374

$26,813,000
26,892,000
27,698,760
28,529,723
29,385,614
30,267,183
31,175,198
32,110,454
33,073,768
34,065,981

$12,500,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000

$179,820,000
164,694,000
169,503,570
174,457,427
176,728,846
181,899,461
184,280,049
189,677,201
192,172,432
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
2023
2024
2025
2026
2027
2028
2029
2030
2031

.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................

355,175,000
337,047,000
347,832,504
358,963,144
362,552,776
374,154,464
377,896,009
389,988,681
393,888,568
406,493,002

70,525,000
72,179,000
74,344,370
76,574,701
78,871,942
81,238,100
83,675,243
86,185,501
88,771,066
91,434,198

12,500,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000

438,200,000
413,601,000
426,551,874
439,912,845
445,799,718
459,767,565
465,946,252
480,549,182
487,034,634
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)

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.
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031

.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................
.......................................................................................................

806,697,000
766,159,000
793,740,724
822,315,390
830,538,544
860,437,932
869,042,311
900,327,834
909,331,112
942,067,032

133,182,000
136,874,000
140,980,220
145,209,627
149,565,915
154,052,893
158,674,480
163,434,714
168,337,755
173,387,888

12,500,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000
4,375,000

952,379,000
907,408,000
939,095,944
971,900,017
984,479,459
1,018,865,824
1,032,091,791
1,068,137,548
1,082,043,868
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

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percent and 7 percent discount rate. It
is noted that since the cost inputs differ
yearly, the average annualized

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equivalence costs are not uniform across
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TABLE 11—MONETIZED COSTS OF THE PROPOSED RULE
[In millions, 2020 dollars]
Undiscounted

3-Percent

7-Percent

Population Level
10-Year cost

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Low ...........................................................................
Primary .....................................................................
High ..........................................................................

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

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10-Year cost

$1,811.0
4,559.7
10,076.2

Annualized cost

$1,538.8
3,871.3
8,550.3

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

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10-Year cost

$180.4
453.8
1,002.4

$1,260.8
3,168.9
6,993.7

Annualized cost
$179.5
451.2
995.8

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
102 The 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).

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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

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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
103 Based 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).

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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
104 See 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).

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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.

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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
105 See 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.

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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

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46939

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
106 Instruction

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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

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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;

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(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).

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.

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

8 CFR Part 208

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List of Subjects
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:
■
■

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§ 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

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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

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§ 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

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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:

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§ 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.

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(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.

*

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46943

(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.

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*

*
*
*
*
(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

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§ 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

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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

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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

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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.

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*

*
*
*
*
(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

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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’

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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).

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(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):
■
■

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

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
§ 1208.4 [Amended]
decision, in accordance with § 1003.48
of this chapter. The alien shall have 30
■ 24. Amend § 1208.4 by adding the
words ‘‘, except that an alien in a review days to affirmatively request such
review as directed on the decision
proceeding under § 1003.48 of this
notice. The failure to timely request
chapter is not required to file the Form
further review will be processed as the
I–589’’ after the word ‘‘case’’ in
alien’s decision not to request review.
paragraph (b)(3)(iii).
(i) If the alien requests such
§ 1208.5 [Amended]
immigration judge review, USCIS will
■ 25. Amend § 1208.5(b)(2) by removing
serve the alien with a notice of referral
the reference ‘‘§ 1212.5 of this chapter’’
to an immigration judge for review of
and adding ‘‘8 CFR 212.5’’ in its place.
the asylum application. USCIS shall
■ 26. Amend § 1208.14 by:
provide the record of the proceedings
■ a. Removing ‘‘the Office of
before the asylum officer, as outlined in
International Affairs’’ and adding in its
8 CFR 208.9(f), to the immigration judge
place ‘‘USCIS’’ in paragraph (b);
and the alien, along with the written
■ b. Revising paragraphs (c)
notice of decision, including the order
introductory text and (c)(1); and
of removal issued by the asylum officer,
■ c. Adding paragraph (c)(5).
and the alien’s request for review.
The revisions and addition read as
(ii) If the alien does not request a
follows:
review by an immigration judge, the
decision and order of removal will be
§ 1208.14 Approval, denial, referral, or
final and the alien shall be subject to
dismissal of application.
removal from the United States.
*
*
*
*
*
(iii) Once USCIS has commenced
(c) Denial, referral, or dismissal by an
proceedings under § 1003.48 of this
asylum officer. If the asylum officer does
chapter by filing the notice of referral on
not grant asylum to an applicant after an
the alien, the immigration judge has sole
interview or hearing conducted in
jurisdiction to review the application,
accordance with 8 CFR 208.9, or if, as
and an asylum officer may not reopen
provided in 8 CFR 208.10, the applicant
or reconsider the application once it has
is deemed to have waived his or her
been referred to the immigration judge.
right to an interview, a hearing, or an
*
*
*
*
*
adjudication by an asylum officer, the
■ 27. Amend § 1208.16 by revising
asylum officer shall deny, refer, or
paragraph (a) to read as follows:
dismiss the application, as follows:
(1) Inadmissible or deportable aliens.
§ 1208.16 Withholding of removal under
Except as provided in paragraph (c)(4)
section 241(b)(3)(B) of the Act and
withholding of removal under the
or (5) of this section, in the case of an
Convention Against Torture.
applicant who appears to be
inadmissible or deportable under
(a) Consideration of application for
section 212(a) or 237(a) of the Act, the
withholding of removal. An asylum

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

■
■

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§ 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

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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

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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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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:

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■
■
■

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§ 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

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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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