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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
protection claims made by noncitizens who receive a positive credible fear determination is not new. In its congressionally mandated 2005 report on the expedited removal process, the U.S. Commission on International Religious Freedom USCIRF
recommended that asylum officers be allowed to grant asylum to ease the burden on the detention system, the immigration courts, and bona fide asylum seekers in Expedited Removal. 49 The USCIRF repeated this recommendation when it conducted a follow-up study and issued an updated report in 2016, stating as follows:
One solution to reduce the immigration courts caseload and backlog is to allow asylum officers to adjudicate defensive asylum claims, as USCIRF recommended in the 2005 Study. Asylum officers have the legal background and training to adjudicate asylum claims, and do so for affirmative asylum cases. Further, having an asylum officer review a credible fear claim and then having an immigration judge review an asylum claim creates significant redundancy without necessarily adding value.50

In 2012, the Administrative Conference of the United States studied the removal process and also issued recommendations that regulations be changed to allow for asylum officers to adjudicate protection claims for noncitizens determined to have a credible fear as part of a package of proposals to improve the operations of the immigration courts.51 More recently, experts from the Migration Policy Institute MPI reached a similar conclusion in a 2018 report on the state of the U.S. asylum system. MPI
concluded as follows:

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Allowing cases with positive credible-fear findings to instead remain with the Asylum Division for the full asylum merits adjudication would capitalize on the investment of time and expertise the division has already made. It would also enable meritorious cases to be resolved more quickly, reducing the overall asylum system backlogs and using limited asylum officer and IJ resources more efficiently.52
49 USCIRF, Report on Asylum Seekers in Expedited Removal, Volume I: Findings &
Recommendations 66 Feb. 2005, https
www.uscirf.gov/sites/default/files/resources/stories/
pdf/asylum_seekers/Volume_I.pdf.
50 USCIRF, Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal 54 Aug.
2016, https www.uscirf.gov/sites/default/files/
Barriers%20To%20Protection.pdf.
51 Administrative Conference of the United States, Administrative Conference Recommendation 20123: Immigration Removal Adjudication 15
June 15, 2012, https www.acus.gov/sites/default/
files/documents/2012-3.pdf.
52 Doris Meissner, Faye Hipsman, & T. Alexander Aleinikoff, The U.S. Asylum System in Crisis:
Charting a Way Forward 3, Migration Policy Institute Sept. 2018, https
www.migrationpolicy.org/sites/default/files/
publications/MPI-AsylumSystemInCrisis-Final.pdf.

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In reaching this conclusion, these experts noted that moving the cases to the USCIS Asylum Division for adjudication plays to its strengths, including its experience in handling asylum and asylum-related adjudications; its regular trainings on asylum-related country conditions and legal issues, as well as nonadversarial interviewing techniques; and its ready access to country conditions experts.
Additionally, the MPI experts concluded that nonadversarial proceedings are well suited for this process because they are considerably less resource-intensive than immigration court proceedings and lend themselves to a fuller understanding of the strengths and weaknesses of an applicants case. 53
The DHS Homeland Security Advisory Councils HSAC bipartisan CBP
Families and Children Care Panel also included this recommendation in its final report to the Secretary.54 This panel of the HSAC was created at the request of the Secretary in October 2018
to study the burgeoning humanitarian crisis resulting from a surge in migration of families, primarily from Guatemala and Honduras, overwhelming the DHS
resources at the border to address the crisis. 55
The Departments acknowledge that the above recommendations assumed that individuals denied asylum by a USCIS asylum officer would be issued an NTA and placed into section 240
removal proceedings before an IJ, where the noncitizen would have a second, full evidentiary hearing on the asylum application with a different decisionmaker. This proposed rule would not adopt that approach, as the Departments determined it was unnecessary, duplicative, and inefficient. Instead, as noted in the previous section, this proposed rule would establish a new process that would require the IJ to conduct a de novo review of a denied application for protection when such review is requested, but it would not provide the noncitizen with a second full evidentiary hearing to present the claim. The Departments believe that an approach requiring a full evidentiary hearing before an IJ after an asylum officers denial would lead to inefficiencies without adding additional value or procedural protections. Under this proposal, the asylum officer will have developed and considered the 53 Id.

at 26.
CBP Families and Children Care Panel Final Report 24 Nov. 14, 2019, https
www.dhs.gov/sites/default/files/publications/fccp_
final_report_1.pdf.
55 Id. at 4.
54 HSAC,
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noncitizens claim fully, including by taking testimony and accepting evidence, during the nonadversarial proceeding. If a noncitizen seeks review of an asylum officers denial, the IJ
would have a complete record for review developed by the asylum officer including a transcript of the hearing and any evidence offered by the applicant or otherwise considered by the officer and the written decision of the asylum officer. The noncitizen would have a full opportunity to challenge the asylum officers denial during this review process and would not need to present their claim at a second full hearing. Instead, to the extent that a noncitizen seeks to introduce additional non-duplicative testimony or evidence, a provision of the proposed rule would allow them to do so if certain requirements are met.
See 8 CFR 1003.48e proposed.
Accordingly, the Departments believe that a second full evidentiary hearing before an IJ is unnecessary and inefficient. A further description of the proposed review process follows in the next section.
This proposed rule would change current procedures to allow a noncitizen who is found to have a credible fear to have a full adjudication of the noncitizens protection claims by an asylum officer. 8 CFR 208.2a proposed revising jurisdiction over asylum applications in order to provide USCIS jurisdiction to hear asylum claims after a positive credible fear determination, id. 208.30f retention of a positive credible fear determination with USCIS for an asylum hearing; id.
1003.42, 1208.30g referral of negative credible fear determinations vacated by an IJ to USCIS for an asylum hearing. This would supplant the process in place prior to this proposed rule whereby DHS referred such an individual directly to an IJ for an adversarial hearing in a section 240
removal proceeding. Proposed 8 CFR
1003.42 and 1208.30g of the EOIR
regulations reflect similar changes, enabling an IJ who vacates an asylum officers negative credible fear determination to refer the case back to USCIS for an asylum hearing.
The Departments propose to make corresponding amendments to 8 CFR
208.2c, 8 CFR 208.30e5 and f, and 8 CFR 235.6a1 to provide that the cases of individuals who receive a positive credible fear determination may be retained by USCIS for a nonadversarial hearing before a USCIS
asylum officer under the jurisdiction of 8 CFR 208.2a1ii to determine eligibility for asylum, statutory withholding of removal, and
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