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On August 20, 2021 the Department of Justice (DOJ) and the Department of Homeland Security (DHS) (collectively, the Departments) published a Notice of Proposed Rulemaking (NPRM) 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 would 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 denied protection would be able to seek prompt, de novo review with an immigration judge (I J) 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 consider the asylum claims of individuals encountered at or near the border more promptly while ensuring fundamental fairness.

In conjunction with the above changes, the Departments are proposing to return the regulatory framework governing the credible fear screening process so as to once more apply the longstanding "significant possibility” screening standard to all protection claims, but not apply the mandatory bars to asylum and withholding of removal (with limited exception) at this initial screening stage. The Departments also propose that, if an asylum officer makes a positive credible fear determination, the documentation the USCIS asylum officer creates from the individual’s sworn testimony during the credible fear screening process would serve as an initial asylum application, thereby improving efficiency in the asylum adjudication system. Lastly, the Departments are proposing to allow, when detention is unavailable or impracticable, for the consideration of parole prior to a positive credible fear determination of an individual placed into expedited removal who makes a fear claim. The Departments are reviewing the public comments received and plan to issue a final rule.

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.

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.