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DOJ/EOIR RIN: 1125-AB20 Publication ID: Fall 2021 
Title: Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal and CAT Protection Claims by Asylum Officers 
Abstract:

The Department of Justice and the Department of Homeland Security (DHS) propose to amend the regulations so that individuals found to have a credible fear can have their claims for asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (statutory withholding of removal), or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, initially adjudicated by an asylum officer within DHS with administrative review of the decision by the Executive Office for Immigration Review.

 
Agency: Department of Justice(DOJ)  Priority: Economically Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage 
Major: Yes  Unfunded Mandates: No 
CFR Citation: 8 CFR 208    8 CFR 235    8 CFR 1003    8 CFR 1208    8 CFR 1235   
Legal Authority: 8 U.S.C. 1103(g)    8 U.S.C. 1158(b)(2)(C)    8 U.S.C. 1158(d)(5)(B)    8 U.S.C. 1225    8 U.S.C. 1231(b)(3)   
Legal Deadline:  None

Statement of Need:

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. As the number of such claims has skyrocketed over the years, the system has proven unable to keep pace, resulting in large backlogs and lengthy adjudication delays. A system that takes years to reach a result 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.

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 the consideration of asylum applications. Thus, this proposed rule utilizes such authority to propose revisions to the regulations related to processing procedures for asylum and withholding of removal claims pursuant to 8 U.S.C. 1225 and 1231.

Alternatives:

There are no feasible alternatives that make similarly impactful changes to the system without a more widespread overhaul of the entire system in one rulemaking.

Anticipated Costs and Benefits:

DHS estimated the resource cost needed to implement and operationalize the rule along a range of possible future credible fear volumes. The average annualized costs could range from $179.5 million to $995.8 million at a 7 percent discount rate. At a 7 percent discount factor, the total ten-year costs could range from $1.3 billion to $7.0 billion, with a midrange of $3.2 billion.

There could also be cost-savings related to Forms I-589 and I-765 filing volume changes. In addition, some asylum applicants may realize potential early labor earnings, which could constitute a transfer from workers in the U.S. labor force to certain asylum applicants, as well as tax impacts. Qualitative benefits include, but may not be limited to: (i) beneficiaries of new parole standards may not have to wait lengthy times for a decision on whether their asylum claims will receive further consideration; (ii) some individuals could benefit from de novo review by an IJ of the asylum officer’s denial of their asylum; (iii) DOJ-EOIR may focus efforts on other priority work and reduce its substantial current backlog; (iv) as 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.

Risks:

Without this rulemaking, the current system will remain status quo. The backlogs and delays will continue to grow, and potential for abuse will remain. Most importantly, noncitizens in need of protection will continue to experience delays in the adjudication of their claims.

Timetable:
Action Date FR Cite
NPRM  08/20/2021  86 FR 46906   
NPRM Comment Period End  10/19/2021 
Final Action  03/00/2022 
Additional Information: Joint rule with DHS 1616-AC67
Regulatory Flexibility Analysis Required: Undetermined  Government Levels Affected: Undetermined 
Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL: http://regulations.gov   Public Comment URL: http://regulations.gov  
RIN Data Printed in the FR: No 
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