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In 2020, the Department of Homeland Security and Department of Justice (collectively, the Departments) published final rules amending their respective regulations governing bars to asylum eligibility and procedures, including the Procedures for Asylum and Bars to Asylum Eligibility, (RINs 1125-AA87 and 1116-AC41), 85 FR 67202 (Oct. 21, 2020), Asylum Eligibility and Procedural Modifications, (RINs 1125-AA91 and 1615-AC44), 85 FR 82260 (Dec. 17, 2020), and Security Bars and Processing,  (RINs 1125-AB08 and 1615-AC57), 85 FR 84160 (Dec. 23, 2020), final rules. The Departments propose to modify or rescind the regulatory changes promulgated in these three final rules, consistent with Executive Order 14010 (Feb. 2, 2021).

Statement of Need:

The Departments are reviewing these regulations in light of the issuance of Executive Order 14010 and Executive Order 14012. This rule is needed to restore and strengthen the asylum system and to address inconsistencies with the goals and principles outlined in the Executive Order 14010 and Executive Order 14012.

Summary of the Legal Basis:

The Attorney General has general authority under 8 U.S.C. 1103(g) to establish regulations related to the immigration and naturalization of noncitizens. More specifically, under 8 U.S.C. 1158(b)(2)(C) and (d)(5)(B), the Attorney General has authority to provide by regulation additional conditions and limitations consistent with the INA for asylum eligibility. Thus, this proposed rule utilizes such authority to propose revisions to the regulations related to processing procedures for asylum and withholding of removal claims. 

Alternatives:

Unless the Departments rely on the pending litigation to enjoin Asylum and Bars to Asylum Eligibility, 85 FR 67202, and Asylum Eligibility and Procedural Modifications, 85 FR 82260, there are no other alternatives to revise those two rules. As for Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020), because it relies on the framework for applying bars to asylum during credible fear processing that was established in an enjoined rule titled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 80274, the only alternative is to wait for the outcome of that litigation before making changes to the regulation. Relying on litigation to address these rules could be extremely time-burdensome and may introduce confusion as to effectiveness of the regulations. Thus, the Departments consider this alternative to be a burdensome and inadvisable course of action and therefore not feasible.

Anticipated Costs and Benefits:

DOJ and DHS are currently considering the specific cost and benefit impacts of the proposed provisions.

Risks:

Without this rulemaking, regulations related to Procedures for Asylum and Bars to Asylum Eligibility, 85 FR 67202, and Asylum Eligibility and Procedural Modifications, 85 FR 82260, will remain enjoined pending litigation. This is inadvisable, as litigation typically takes much time to resolve. Moreover, the implementation of Security Bars and Processing, 85 FR 80274, will not be viable (as described in the Alternatives section). Thus, the Department strongly prefers proactively addressing the regulations through this proposed rule.