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DOJ/EOIR RIN: 1125-AB12 Publication ID: Fall 2021 
Title: Bars to Asylum Eligibility and Procedures 
Abstract:

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).

 
Agency: Department of Justice(DOJ)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
CFR Citation: 8 CFR 208    8 CFR 235    8 CFR 1208    8 CFR 1235    8 CFR 1003   
Legal Authority: Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, sec. 1102, as amended    8 U.S.C. 1103(a)(1), (a)(3), (g)    8 U.S.C. 1225(b)    8 U.S.C. 1231(b)(3) and 1231 note    8 U.S.C. 1158    E. O. 14010, 86 FR 8267 (Feb. 2, 2021)   
Legal Deadline:  None

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.  

Timetable:
Action Date FR Cite
NPRM  02/00/2022 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: None 
Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL: http://www.regulations.gov   Public Comment URL: http://www.regulations.gov  
RIN Data Printed in the FR: No 
Related RINs: Related to 1615-AC69, Related to 1125-AB08  Related Agencies: Joint: DHS/USCIS; 
Agency Contact:
Lauren Alder Reid
Assistant Director, Office of Policy, Executive Office for Immigration Review
Department of Justice
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 1800,
Falls Church, VA 22041
Phone:703 305-0289
Email: pao.eoir@usdoj.gov