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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
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torture, DHS places the noncitizen before an immigration court for adjudication of the noncitizens claims by initiating section 240 removal proceedings.43 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. 8 CFR 1208.30g2ivB.
Section 240 removal proceedings, which are used to determine removability as well as eligibility for any relief or protection from removal, currently provide additional procedural protections, including greater administrative and judicial review, than expedited removal proceedings under section 235 of the Act. Compare INA
235b1, 8 U.S.C. 1225b1, with INA
240, 8 U.S.C. 1229a.
As noted previously, however, the expedited removal statute provides only that a noncitizen who is found to have a credible fear shall be detained for further consideration of the application for asylum. INA 235b1Bii, 8
U.S.C. 1225b1Bii. The statute mandates neither that the noncitizen be placed in removal proceedings generally nor placed in section 240 removal proceedings specifically. Id.
The regulations regarding the credible fear process, and the interplay between expedited removal and section 240
removal proceedings, were first adopted in 1997.44 At the time, the former INS
explicitly recognized that the statute is silent as to the procedures for those who do demonstrate a credible fear of persecution. 45 Faced with this ambiguity, the INS opted at the time to have the further consideration take place in pre-existing section 240
removal proceedings rather than create new proceedings for this purpose.46 But the INSs contemporaneous analysis was very limited.
The Departments believe that section 235b1 of the INA, 8 U.S.C. 1225b1, authorizes a procedure for further consideration of an application for 43 See 8 CFR 208.30f 2018; supra note 24
explaining that various changes to these procedures have been enjoined.
44 Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR
10312 Mar. 6, 1997 interim final rule.
45 Id. at 10320; see Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 444, 447 Jan. 3, 1997 proposed rule noting that although the statute calls for further consideration of the noncitizens asylum application, it does not specify how or by whom this further consideration should be conducted.
46 62 FR at 10320.

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asylum that is separate from section 240 removal proceedings. By its terms, the phrase further consideration is open-ended and does not mandate any particular procedure. It is thus naturally read as giving DHS flexibility to determine the appropriate procedure for consideration of noncitizens asylum claims after establishing a credible fear in the expedited removal process.
Moreover, while section 235b1 of the INA, 8 U.S.C. 1225b1, mandates that a noncitizen with a positive credible fear determination receive further consideration of the noncitizens application for asylum, section 235b2 of the INA, 8 U.S.C. 1225b2, mandates that other classes of noncitizens receive a proceeding under section 1229a of this title, i.e., section 240 of the INA. Compare INA
235b1Bii, 8 U.S.C.
1225b1Bii, with INA 235b2A, 8 U.S.C. 1225b2A. The difference in language suggests that section 235b1
of the INA, 8 U.S.C. 1225b1, does not require use of section 240 removal proceedings, in contrast to section 235b2, 8 U.S.C. 1225b2, which does. The Supreme Court has observed that where Congress includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. Russello v. United States, 464 U.S. 16, 23 1983 internal quotation marks and citation omitted.
More recently, the D.C. Circuit stated that it has consistently recognized that a congressional mandate in one section and silence in another often suggests not a prohibition but simply a decision not to mandate any solution in the second context, i.e., to leave the question to agency discretion. Catawba Cty., N.C.
v. EPA, 571 F.3d 20, 36 D.C. Cir. 2009
emphasis in original internal quotation marks and citation omitted.47
The inference that Congresss silence intentionally permits agency discretion is reinforced by the fact that the noncitizens whom DHS has elected to process into the United States using the expedited removal procedure are expressly excluded from the class of noncitizens who are statutorily guaranteed section 240 removal proceedings under section 235b2A
of the INA, 8 U.S.C. 1225b2A. See INA 235b2Bii, 8 U.S.C.
1225b2Bii.
47 See also Henson v. Santander Consumer USA, Inc., 137 S. Ct. 1718, 1723 2017 Usually at least, . . . we presume differences in language . . .
convey differences in meaning..

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Second, a noncitizen with a positive credible fear determination is entitled only to a further proceeding related to their application for asylum, or for withholding of removal under section 241b3 of the INA, 8 U.S.C. 1251b3, or withholding or deferral of removal under the regulations implementing U.S. obligations under Article 3 of the CAT. INA 235b1Bii, 8 U.S.C.
1225b1Bii; 8 CFR 208.30e. An asylum applications purpose is to determine whether the noncitizen is entitled to relief or protection from removal, not whether the noncitizen should be admitted or granted other immigration benefits. See Sanchez v.
Mayorkas, 141 S. Ct. 1809, 1813 2021
A foreign national can be in lawful status but not admittedthink of someone who entered the country unlawfully, but then received asylum.;
Matter of VX, 26 I&N Dec. 147, 150
BIA 2013 holding that, although a noncitizens grant of asylum confers a lawful status upon him, it does not entail an admission . By contrast, the purpose of a section 240 removal proceeding is to determine whether a noncitizen may be admitted to the United States. INA 240a3, 8 U.S.C.
1229aa3. In section 240 removal proceedings, both removability and entitlement to various forms of relief or protection are determined. Compare INA 235b1Bii, 8 U.S.C.
1225b1Bii, with INA 240c24, 8 U.S.C. 1229ac24.48 Moreover, the Departments believe that it is better policy to place noncitizens with a positive credible fear determination initially in nonadversarial proceedings in which their asylum claims can be adjudicated by asylum officers.
The idea of allowing USCIS asylum officers to fully adjudicate the 48 The Departments acknowledge that there is some legislative history suggesting that some Members of Congress believed that individuals found to have a credible fear would be referred to section 240 removal proceedings. See, e.g., H.R.
Rep. No. 104828, at 209 1996 suggesting that noncitizens who received positive credible fear determinations would be placed in normal nonexpedited removal proceedings. But the Departments are not convinced that the legislative history is sufficiently clear to foreclose an option the text itself does not unambiguously forbid.
Barnhart v. Walton, 535 U.S. 212, 218 2002.
Indeed, other Members of Congress took a different view. See Letter for Richard A. Sloan, Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, from Lamar Smith, Chairman, Subcommittee on Immigration and Claims, Re: INS 178896, RIN
1115AE47 Feb. 3, 1997, in Implementation to Title III of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996: Hearing Before the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 105th Cong. 21
22 1997 Section 235b1Bii was drafted deliberately to leave flexibility regarding how the asylum adjudication would take place..

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