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DHS/USCIS RIN: 1615-AC57 Publication ID: Fall 2020 
Title: Security Bars and Processing 
Abstract:

On July 9, 2020, DHS and DOJ (collectively, the Departments) proposed amending existing regulations to clarify that the Departments may consider emergency public health concerns based on communicable disease due to potential international threats from the spread of pandemics when making a determination as to whether there are reasonable grounds for regarding an alien as a danger to the security of the United States and, thus, ineligible to be granted asylum or the protection of withholding of removal in the United States under Immigration and Nationality Act (INA) sections 208 and 241 and DHS and DOJ regulations. The proposed rule also would provide that this application of the statutory bars to eligibility for asylum and withholding of removal will be effectuated at the credible fear screening stage for aliens in expedited removal proceedings in order to streamline the protection review process and minimize the spread and possible introduction into the United States of communicable and widespread disease. The proposed rule further would allow DHS to exercise its prosecutorial discretion regarding how to process individuals subject to expedited removal who are determined to be ineligible for asylum in the United States on certain grounds, including being reasonably regarded as a danger to the security of the United States. Finally, the proposed rule would modify the process for evaluating the eligibility of aliens for deferral of removal who are ineligible for withholding of removal as presenting a danger to the security of the United States. The Departments are reviewing public feedback and planning to issue a final rule.

 
Agency: Department of Homeland Security(DHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage 
Major: No  Unfunded Mandates: No 
EO 13771 Designation: Other 
CFR Citation: 8 CFR 208    8 CFR 1208   
Legal Authority: Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Publ. L. 104-208, 110 Stat. 3009, sec. 604(a) (codified at INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C))    INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B)    Foreign Affairs Reform and Restructuring Act (“FARRA”), Pub. L. 105-277, 112 Stat. 2681-822, sec. 2242 (1998)    INA 235(b), 8 U.S.C. 1225(b)   
Legal Deadline:  None

Statement of Need:

The Security Bars final rule is needed to prevent aliens from bringing into or spreading within the United States COVID-19 (and future serious contagious diseases) by making ineligible for asylum and withholding of removal those aliens at a high risk of being afflicted with the disease.

Summary of the Legal Basis:

Congress provided the Attorney General and the Secretary with the authority to establish additional limitations and conditions, consistent with [section 208 of the INA], under which an alien shall be ineligible for asylum. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 110 Stat. 3009, sec. 604(a) (codified at INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C)). The additional bars to eligibility must be established by regulation and must be consistent with the rest of section 208. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). As to statutory withholding of removal under INA 241(b)(3), the INA provides bars to eligibility for statutory withholding of removal, which includes those who are reasonably regarded as a danger to the security of the United States. See INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B). In the Foreign Affairs Reform and Restructuring Act (FARRA), Congress directed that the Convention Against Torture regulations exclude from their protection those aliens subject to the withholding of removal eligibility bars [t]o the maximum extent consistent with the obligations of the United States under the Convention subject to reservations provided by the U.S. Senate in its ratification resolution. See FARRA, Public Law 105-277, 112 Stat. 2681-822, sec. 2242 (1998). In IIRIRA, Congress also granted the federal government the ability to apply expedited removal procedures to aliens who arrive at a POE or who have entered illegally and are encountered by an immigration officer within parameters established by the Secretary of Homeland Security by designation. See INA 235(b), 8 U.S.C. 1225(b); see also Designating Aliens For Expedited Removal, 69 FR 48877, 48880 (Aug. 11, 2004).

Alternatives:

Anticipated Costs and Benefits:

Risks:

Timetable:
Action Date FR Cite
NPRM  07/09/2020  85 FR 41201   
NPRM Comment Period End  08/10/2020 
Final Action  12/00/2020 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: None 
Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: No 
Related RINs: Related to 1125-AB08  Related Agencies: Joint: DOJ/EOIR; 
Agency Contact:
Andrew Davidson
Asylum Division Chief, Refugee Asylum and International Affairs Directorate
Department of Homeland Security
U.S. Citizenship and Immigration Services
5900 Capital Gateway Drive, Suite 4S190,
Camp Springs, MD 20588-0009
Phone:240 721-3000