View Rule

On August 20, 2021, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) (collectively the "Departments") published a notice of proposed rulemaking (NPRM or proposed rule) 86 FR 46906 that proposed amending regulations governing the procedures for determining certain protection claims and available parole procedures for certain individuals subject to expedited removal and found to have a credible fear of persecution or torture. After a careful review of the comments received, on March 29, 2022, the Departments issued an interim final rule (rule or IFR) that responds to comments received in response to the NPRM and adopts the proposed rule with changes. Significantly, the IFR established timelines for the consideration of applications for asylum and related protection by DHS’s U.S. Citizenship and Immigration Services (USCIS) and, as needed, DOJ’s Executive Office for Immigration Review (EOIR). The IFR also provided that DHS will refer noncitizens whose applications are denied by USCIS to EOIR for streamlined removal proceedings. The Departments solicited further public comment on the IFR, which the Departments intend to consider and address in a final rule.

Statement of Need:

There is wide agreement that the system for handling 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 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 more effective and 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.

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 lengthy waits 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 the potential for abuse will remain. Most importantly, noncitizens in need of protection will continue to experience delays in the adjudication of their claims.