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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules pending and new cases, along with the temporary, partial closure of the immigration courts to in-person hearings in 2020 and 2021 because of the COVID19 pandemic, has resulted in significantly increased adjudication times. While the median completion time for cases involving individuals who are detained through the 2nd quarter of FY 2021 was 43 days, for nondetained individuals in removal proceedings, including arriving asylum seekers initially screened into expedited removal who establish a credible fear of persecution, the recent average case completion time in immigration court has been 3.75 years.20 Most asylum seekers arriving at the southwest border in recent years must therefore often wait several years to have their claims adjudicated in removal proceedings under section 240 of the Act, 8 U.S.C.
1229a. Absent changes to the current system, the continuing arrival of large numbers of noncitizens at the southwest border with protection claims is likely to lengthen adjudication times further.
In 2020 and 2021, the situation at the southwest border was complicated further by the COVID19 pandemic.
Pursuant to sections 362 and 365 of the Public Health Service Act, Public Law 78410, 58 Stat. 682 1944, 42 U.S.C.
265 and 268 Title 42, the Centers for Disease Control and Prevention CDC
determined in March 2020 that it was necessary to prohibit the introduction of certain persons from Mexico and Canada to protect the public health by preventing the further introduction of the virus that causes COVID19 into the United States.21 To mitigate the risks presented by COVID19, the CDC Order requires returning all covered noncitizens as rapidly as possibleand with the least amount of time spent in congregate settings as is feasibleto the country from which they entered the United States, to their country of origin, or to another location as practicable and appropriate.22 Covered noncitizens are those persons traveling from Canada or Mexico regardless of their country of origin who otherwise would be introduced into a congregate setting in
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20 According
to a review of data collected as part of the FY 2020 Lifecycle Report by DHS OIS, 39%
of cases of noncitizens encountered at the southwest border in 2013 through 2019 who made fear claims remain in EOIR proceedings as of this date. As those cases are eventually completed, the median and average completion time for cases could be further impacted.
21 See Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, 85 FR
65806, 65807 Oct. 16, 2020 CDC Order or Title 42 order extending March 20, 2020 order, 85 FR 16559.
22 Id. at 65812.

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a land and, as amended, coastal port of entry or USBP station at or near the U.S. borders with Canada and Mexico.
The CDC Order does not apply to, among others, U.S. citizens, lawful permanent residents, and those who arrive at a port of entry with valid travel documents.23
Border encounters in FY 2021 remain high. To date, the data does suggest that single adults make up a greater percentage of apprehensions than in FY
2019 and, controlling for repeat encounters, the actual number of unique encounters the number of unique individuals encountered irrespective of potential repeated attempts to enter has been lower to date in FY 2021 than in FY 2019 given the continuing use of Title 42 authority to expel many adults and families soon after they are apprehended. But total encounters at or near the southwest border through April for FY 2021 has surpassed the FY 2019
highs over the same period. The high number of southwest border apprehensions is presenting serious challenges for an already overwhelmed U.S. asylum system at the border.
A. Improving the Expedited Removal Process The principal purpose of this proposed rule is to simultaneously increase both the efficiency and the procedural fairness of the expedited removal process for individuals who have been found to have a credible fear of persecution or torture. When individuals who have been placed into the expedited removal process make a fear claim, they are referred to a USCIS
asylum officer, who interviews them to determine whether they have a credible fear of persecution or torture. See INA
235b1Aii, 8 U.S.C.
1225b1Aii. Under current procedures, individuals who receive a positive credible fear determination are referred to an immigration court for removal proceedings, in the course of which they have the opportunity to apply for asylum and other forms of relief or protection from removal. See 8
CFR 208.30f 2018 providing that if a noncitizen, other than a stowaway, is found to have a credible fear of persecution or torture, the asylum officer will so inform the noncitizen and issue a Form I862, Notice to Appear, for full consideration of the asylum and withholding of removal claim in proceedings under section 240
of the Act. As explained above, it may take years before the individuals protection claim is first adjudicated by an IJ. The ability to stay in the United 23 Id.

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States for years waiting for an initial decision may motivate unauthorized border crossings by individuals who otherwise would not have sought to enter the United States and who lack a meritorious protection claim. This delay creates additional stress for those ultimately determined to merit asylum and other forms of humanitarian protection, as they are left in limbo as to whether they might still be removed and unable to petition for qualified family members, some of whom may still be at risk of harm.
To respond to this problem, this rule proposes at 8 CFR 208.2a1ii and 208.9 to provide USCIS asylum officers the authority to adjudicate in the first instance the protection claims of individuals who receive a positive credible fear determination, and that they do so in a nonadversarial hearing.
The rule also proposes at 8 CFR
208.3a2 that the record of a credible fear interview may serve as an asylum application for those noncitizens whose cases are retained by or referred to USCIS for adjudication after a positive credible fear determination, thereby helping to ensure that asylum seekers meet the statutory requirement to apply for asylum within one year of arrival.
These steps are meant to ensure greater efficiency in the system, which was initially designed for protection claims to be the exception, not the rule, among those encountered at or near the border.
The proposed rule will also stem the rapid growth of the EOIR caseload, described in greater detail above.
As noted earlier, the current system for processing protection claims made by individuals encountered at or near the border and who establish credible fear was originally adopted in 1997.
Within the last 3 years, however, several attempts have been made to issue new rules to change the credible fear screening process. Many of these attempts have been vacated or enjoined, and the implementation of others has been delayed pending consideration of whether they should be revised or rescinded.24
24 On November 9, 2018, the Departments issued an interim final rule IFR that barred noncitizens who entered the United States in contravention of a covered Presidential proclamation or order from eligibility for asylum, required that they receive a negative credible fear finding on their asylum claims, and required that their statutory withholding and CAT claims be considered under the higher reasonable fear screening standard. See Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 FR 55934, 55939, 55943 Nov.
9, 2018. A month later, the U.S. District Court for the Northern District of California preliminarily enjoined the Departments from implementing the rule, E. Bay Sanctuary Covenant v. Trump, 354 F.

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