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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
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Chavez, 141 S. Ct. at 2286
distinguishing withholding-only relief from asylum on the ground that withholding does not preclude the Government from removing the noncitizen to a third country and does not provide the noncitizen any permanent right to remain in the United States; Matter of AK, 24 I&N Dec.
275, 279 BIA 2007 stating that the Act does not permit derivative withholding of removal under any circumstances; INA 208b3A, 8
U.S.C. 1158b3A statutory provision allowing asylum status to be granted to accompanying or following-to-join spouse or children of a noncitizen granted asylum; no equivalent statutory or regulatory provision for individuals granted withholding or deferral of removal.
2. Expedited Removal and Screenings in the Credible Fear Process In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
IIRIRA, Public Law 104208, div. C, 110 Stat. 3009, 3009546, Congress established the expedited removal process. The process is applicable to noncitizens arriving in the United States and, in the discretion of the Secretary, certain other designated classes of noncitizens who are found to be inadmissible under either section 212a6C of the INA, 8 U.S.C.
1182a6C, regarding material misrepresentations, or section 212a7
of the INA, 8 U.S.C. 1182a7, regarding documentation requirements for admission. Under expedited removal, such noncitizens may be removed from the United States without further hearing or review unless the noncitizen indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution. INA 235b1Ai, 8
U.S.C. 1225b1Ai.
The former INS and, later, DHS
implemented a screening process, known as the credible fear screening, to identify potentially valid claims for asylum, statutory withholding of removal, and CAT protection, or, more specifically, to prevent noncitizens placed in expedited removal from being removed to a country in which they would face persecution or torture.
Currently, with regulatory changes made from 2018 through 2020 either vacated, enjoined, or delayed, any noncitizen who expresses a fear of persecution or torture, a fear of return, or an intention to apply for asylum during the course of the expedited removal process is referred to a USCIS
asylum officer for an interview to determine whether the noncitizen has a
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credible fear of persecution or torture in the country of return. INA
235b1Aii, B, 8 U.S.C.
1225b1Aii, B; see also 8 CFR
235.3b4, 1235.3b4i. If the asylum officer determines that the noncitizen does not have a credible fear of persecution or torture, the noncitizen may request that an IJ review that determination. See INA
235b1BiiiIII, 8 U.S.C.
1225b1BiiiIII; 8 CFR 208.30g, 1208.30g.
Under the regulatory framework prior to November 2018 and currently in effect,31 if the asylum officer determines that a noncitizen subject to expedited removal has a credible fear of persecution or torture, DHS refers the noncitizen to an immigration court for adjudication of the noncitizens claims by initiating section 240 removal proceedings through service of an NTA
on the noncitizen and with the court.
See 8 CFR 208.30f, 235.6a1ii, 1235.6a1ii 2018. Similarly, if an IJ, upon review of the asylum officers negative credible fear determination, finds that the noncitizen possesses a credible fear of persecution or torture, the IJ vacates the expedited removal order and DHS initiates section 240
removal proceedings. See id.
1208.30g2ivB. If the noncitizen subsequently decides to file for asylum, the asylum application is filed with the court during the section 240 removal proceedings, is considered a defensively filed application, and is subject to the one-year filing deadline.
See INA 208a2B, 8 U.S.C.
1158a2B. There is no requirement that the noncitizen file an asylum application, however, once placed into section 240 removal proceedings.
III. Discussion of the Proposed Rule As noted in the summary above, this proposed rule would make several changes to the adjudication process of protection claims presented by noncitizens in expedited removal who both make fear claims and are determined to have a credible fear of persecution or torture. A more detailed explanation of the proposed changes, the reasons for these changes, and their alignment with the relevant statutes, as well as a brief outline of certain other changes proposed by this rule, follows.
A. ParoleProposed 8 CFR
235.3b2iii and b4ii The expedited removal statute provides for detention throughout the expedited removal process, including 31 See supra note 24 discussing the status of more recent regulatory changes.

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during the credible fear screening process and during the process for further consideration of the protection claims on their merits. The statute does not, however, limit DHSs general parole authority under section 212d5 of the INA, 8 U.S.C. 1182d5, and 8 CFR
212.5b, and the Departments have not understood the language providing for detention in expedited removal to limit this parole authority. Instead, parole authority in the context of expedited removal has been specifically provided for in the relevant regulations covering expedited removal and the credible fear screening process since they were first implemented in 1997. See Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens;
Conduct of Removal Proceedings;
Asylum Procedures, 62 FR 10312, 10356
Mar. 6, 1997 interim final rule. And the U.S. Supreme Court recently acknowledged in Jennings v. Rodriguez, 138 S. Ct. 830, 837 2018, that DHS may exercise its authority to temporarily parole persons subject to expedited removal, while also acknowledging that the relevant statutory language in section 235b1 and b2 of the INA, 8 U.S.C. 1225b1, b2, unequivocally mandate that aliens falling within their scope shall be detained, id. at 844.
Since expedited removals implementation regulations were first promulgated, parole consideration has been limited to a narrow category of circumstances for individuals awaiting a credible fear determinationwhen necessary to meet a medical emergency or . . . for a legitimate law enforcement objective. See 8 CFR 235.3b2iii, b4ii current. This proposed rule change would add to those grounds, allowing parole when detention is unavailable or impracticable including situations in which continued detention would unduly impact the health or safety of individuals with special vulnerabilities. 8 CFR 235.3b2iii, b4ii proposed. This change would allow DHS to prioritize use of its limited detention bed space to detain those noncitizens who pose the greatest threats to national security and public safety, while avoiding unnecessary operational limitations on DHSs authority to place noncitizens into expedited removal. Under the proposed rule, when detention space is unavailable or its use is otherwise impracticable, DHS would have the option of using parole rather than placing nearly all families arriving at the border directly into section 240 removal proceedings. The proposed rule also makes clear that a grant of parole only
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