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DHS/USCIS RIN: 1615-AC91 Publication ID: Fall 2024 
Title: Application of Certain Mandatory Bars in Fear Screenings 
Abstract:

On May 13, 2024, DHS proposed a rule that would allow asylum officers (AOs) to consider the potential applicability of certain bars to asylum and statutory withholding of removal during certain fear screenings. Specifically, under this proposed rule, AOs would be authorized to consider certain bars during credible and reasonable fear screenings, including credible fear screenings where the Circumvention of Lawful Pathways (CLP) rule applies. The proposed rule is intended to enhance operational flexibility and help DHS more swiftly remove certain noncitizens who are barred from asylum and statutory withholding of removal. DHS is considering public comments received on the NPRM.

 
Agency: Department of Homeland Security(DHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage 
Major: Undetermined  Unfunded Mandates: No 
CFR Citation: 8 CFR 208.30    8 CFR 208.31    8 CFR 208.33   
Legal Authority: 8 U.S.C. 1101    8 U.S.C. 1103    8 U.S.C. 1158    8 U.S.C. 1225    8 U.S.C. 1231    ...   
Legal Deadline:  None

Statement of Need:

This rule is intended to provide DHS additional operational flexibility in screening determinations by giving AOs discretion, at the earliest stage possible, to consider whether a given noncitizen is unlikely to be able to establish eligibility for asylum or statutory withholding of removal because of a mandatory bar that relates to participation in persecution, or national security, criminal, or other public safety concern, and, in relevant cases, to issue a negative fear of persecution determination based on the application of such a bar. For those noncitizens in whose cases a negative determination is made due to applicability of a bar, the regulation would prevent them from entering a potentially years-long immigration court process and would conserve those DHS and EOIR resources that would have been required to complete such process to focus on meritorious cases.

Summary of the Legal Basis:

The Immigration and Nationality Act (INA), as amended by the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, as amended, charges the Secretary with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens, except insofar as those laws assign functions to the President or other agencies. INA 103(a)(1), 8 U.S.C. 1103(a)(1). The INA also grants the Secretary the authority to establish regulations and take other actions necessary for carrying out the Secretary's authority to administer and enforce the immigration laws. INA 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3); see also 6 U.S.C. 202 (authorities of the Secretary), 271(a)(3) (conferring authority on USCIS Director to establish policies for performing [immigration adjudication] functions). Under the INA, DHS and the Department of Justice (DOJ) each have authority over credible fear screenings. USCIS AOs are charged with conducting initial credible fear screenings, INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The INA also provides the Secretary and Attorney General authority to publish regulatory amendments governing their respective roles regarding inspection and admission, detention and removal, withholding of removal, and deferral of removal. See INA 235, 236, 241, 8 U.S.C. 1225, 1226, 1231.

Anticipated Costs and Benefits:

As discussed in the May 13, 2024 proposed rule, DHS anticipates that the proposed rule, if finalized, would reduce the amount of time that some noncitizens who are subject to mandatory bars contained in section 208(b)(2)(A)(i)-(v) of the Act that prevent them from being granted asylum, or the mandatory bars contained in section 241(b)(3)(B) of the Act that prevent them from being granted withholding of removal, remain in the United States.

Timetable:
Action Date FR Cite
NPRM  05/13/2024  89 FR 41347   
NPRM Comment Period End  06/12/2024 
Final Rule  12/00/2024 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: None 
Small Entities Affected: No  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL: https://www.regulations.gov   Public Comment URL: https://www.regulations.gov  
RIN Data Printed in the FR: No 
Agency Contact:
Daniel Delgado
Acting Director, Border and Immigration Policy
Department of Homeland Security
Office of the Secretary
Office of Strategy, Policy and Plans, 2707 Martin Luther King Jr. Avenue SE,
Washington, DC 20528
Phone:202 447-3459