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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
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This proposed rule offers another approach. It would establish a streamlined and simplified adjudication process for individuals encountered at or near the border, placed into expedited removal, and determined to have a credible fear of persecution or torture, with the aim of deciding protection claims in a more timely fashion while ensuring procedural protections against erroneous denials of relief.25 The proposed rule would Supp. 3d 1094, 1121 N.D. Cal. 2018, and the Ninth Circuit affirmed, E. Bay Sanctuary Covenant v.
Biden, 993 F.3d 640, 680 9th Cir. 2021.
On July 16, 2019, the Departments published another IFR, entitled Asylum Eligibility and Procedural Modifications, 84 FR 33829 July 16, 2019, which generally barred noncitizens from asylum eligibility if they entered or attempted to enter the United States across the southwest border after failing to apply for protection from persecution or torture while in any one of the third countries through which they transited, required a negative credible fear finding for such noncitizens asylum claims, and required their withholding and CAT
claims be considered under the higher reasonable fear screening standard. Id. at 3383738. The U.S.
District Court for the District of Columbia vacated that IFR after concluding that the Departments violated the Administrative Procedure Act by forgoing notice-and-comment rulemaking. Capital Area Immigrants Rights Coal. v. Trump, 471 F.
Supp. 3d 25, 4557 D.D.C. 2020. The Departments issued a final rule on December 17, 2020, entitled Asylum Eligibility and Procedural Modifications, 85 FR 82260 Dec. 17, 2020, which again attempted to bar from asylum eligibility those noncitizens who transited a third country before arriving at the border. The U.S. District Court for the Northern District of California subsequently issued a preliminary injunction against implementation of that rule, which remains in place as of this writing.
E. Bay Sanctuary Covenant v. Barr, No. 19cv 04073JST, 2021 WL 607869, at 5 N.D. Cal. Feb.
16, 2021.
Around the same time, the Departments also issued the final rule entitled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 80274 Dec. 11, 2020 Global Asylum rule. That rule revised the credible fear screening process to require that all the mandatory bars to asylum and withholding be considered during the credible fear screening process and established a new screening standard for withholding of removal and CAT protection. On January 8, 2021, the U.S. District Court for the Northern District of California preliminarily enjoined the Departments from implementing the rule. Pangea Legal Servs. v. DHS, No. 20cv09253
JD, 2021 WL 75756, at 7 N.D. Cal. Jan. 8, 2021. That preliminary injunction remains in place.
Finally, the Departments also published a final rule entitled Security Bars and Processing, 85 FR
84160 Dec. 23, 2020 Security Bars rule, which added an additional bar to asylum and withholding that would be applied to the credible fear screening process. The Departments have delayed the rules effective date to December 31, 2021, see Security Bars and Processing; Delay of Effective Date, 86 FR
15069 Mar. 22, 2021, as the Departments consider possible action to rescind or revise the rule.
25 Section 4bi of E.O. 14010 instructed the Secretary of Homeland Security to review the procedures for individuals placed into expedited removal at or near the border and issue a report with recommendations for creating a more efficient and orderly process that facilitates timely adjudications of asylum/protection claims and adherence to standards of fairness and due process. 86 FR at 8270.

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authorize USCIS asylum officers to adjudicate in the first instance the protection claims of individuals who receive positive credible fear determinations under the expedited removal framework in section 235b1
of the INA, 8 U.S.C. 1225b1. The procedures that USCIS asylum officers would use to adjudicate these claims would be nonadversarial, and the decisions would be made within timeframes more in line with those established by Congress in section 208d5 of the INA.26
To ensure effective implementation of the expedited removal system, this rule also proposes to revise the parole considerations prior to a positive credible fear determination in 8 CFR
235.3. The current rule limits parole consideration before the credible fear determination to situations in which parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective. 8
CFR 235.3b2iii, b4ii. Under this proposed rule, DHS also would be able to consider whether parole is required because detention is unavailable or impracticable. The current narrower parole standards effectively prevent DHS from placing into expedited removal many noncitizens who would otherwise be eligible for this process, especially families, given the requirements of the Flores Settlement Agreement FSA.27 These restrictions 26 See INA 208d5, 8 U.S.C. 1158d5
specifying that an initial hearing on an asylum application should generally occur within 45 days after the filing of the application and that an initial administrative decision should generally be made within 180 days.
27 In 1985, a class-action suit challenged the policies of the former INS relating to the detention, processing, and release of alien children; the case eventually reached the U.S. Supreme Court. The Court upheld the constitutionality of the challenged INS regulations on their face and remanded the case for further proceedings consistent with its opinion.
See Reno v. Flores, 507 U.S. 292, 315 1993. In January 1997, the parties reached a comprehensive settlement agreement, referred to as the Flores Settlement Agreement. See Flores v. Rosen, 984
F.3d 720, 727 9th Cir. 2020 describing litigation history. The FSA was to terminate 5 years after the date of final court approval; however, the termination provisions were modified in 2001, such that the FSA does not terminate until 45 days after publication of regulations implementing the agreement. Id. In August 2019, DHS and HHS
jointly issued a final rule entitled Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 FR 44392 Aug.
23, 2019. In September 2019, about a month before the Final Rule was to take effect, a Federal district court granted the plaintiff classs motion to enforce the FSA and denied the governments motion to terminate it, because the final rule was inconsistent with the FSA and thus did not implement it as required by the FSAs termination provisions. See Flores v. Barr, 407 F. Supp. 3d 909, 914 C.D. Cal.
2019. The Ninth Circuit affirmed in part, and the provisions of the FSA that are relevant here thus generally remain in effect. See Flores v. Rosen, 984

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on DHSs ability to detain families, coupled with capacity constraints imposed by the COVID19 pandemic, have effectively prevented the Government from using the third option to detain families subject to expedited removal for more than a very limited number of families and for more than a very limited period of time. This proposed rule would, when finalized, eliminate that barrier to placing families into expedited removal. The proposed parole provision would allow more noncitizens arriving at the U.S. border without proper documents for entry into the country to be placed into expedited removal and allow for them to have their fear claims heard and considered outside the detention setting when space is unavailable or impracticable to use.
This proposed rule would apply prospectively and only to adults and families who are placed into expedited removal.28 The proposed rule would not apply to unaccompanied children, see 6
U.S.C. 279g2 defining unaccompanied alien child, as they are statutorily exempt from expedited removal proceedings. 8 U.S.C.
1232a5Di providing that any unaccompanied alien child shall be i placed in removal proceedings under section 240 of the INA.29 The F.3d at 737, 744. Under the requirements of the FSA, when DHS apprehends an alien parent or legal guardian with their children either illegally entering the United States between the ports of entry or found inadmissible at a port of entry, it has, following initiation of removal proceedings, three primary options for purposes of immigration custody: 1 Parole all family members into the United States; 2 detain the parents or legal guardians and either release the juvenile to another parent or legal guardian or transfer them to HHS to be treated as an unaccompanied child; or 3 detain family members together by placing them at an appropriate DHS Family Residential Center FRC during their immigration proceedings. See, e.g., id. at 73738 discussing transfer of unaccompanied minors from DHS to HHS, DHS
custodial care immediately following apprehension, and parole.
28 According to EOIR data, as of April 2021, over 220,000 of EOIRs pending removal cases originated with a credible fear claim. EOIR, Executive Office for Immigration Review Adjudication Statistics:
Pending I862 Proceedings Originating With a Credible Fear Claim and All Pending I862s Apr.
19, 2021, https www.justice.gov/eoir/page/file/
1112996/download. These cases are in various stages of the removal process, and hearings may have already been scheduled or held. Moving these cases to a new process at this stage would risk further delaying adjudication of their protection claims and create an immediate backlog of tens of thousands of cases for USCIS as it prepares to implement this proposed process for future border arrivals.
29 The statute provides that any unaccompanied child whom DHS seeks to remove shall be placed in removal proceedings under section 240 of the INA. In lieu of being placed in removal proceedings, unaccompanied children from contiguous countries who meet special criteria may be permitted to withdraw their applications for
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