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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
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Departments believe it is appropriate, where the applicant has requested review of an asylum officers decision, to permit IJs to review not only the denial but also the grant, because DHS
could present documentation or testimony before the IJ that is admissible under 8 CFR 1003.48e and that indicates that the applicant does not qualify for any of the relief or protection at issue. The Departments seek comment on whether the IJ should have the authority to review all decisions of the asylum officer in this manner.
As proposed at 8 CFR 1003.48e, if the IJ determines that the noncitizen is eligible for and merits asylum as a matter of discretion, the IJ would issue a decision vacating the order of removal issued by the asylum officer based upon the immigration officers initial inadmissibility determination under section 235b1Ai of the Act, 8
U.S.C. 1225b1Ai, and granting the noncitizen asylum. If the IJ determines that the noncitizen is eligible for withholding of removal under the Act or withholding or deferral of removal under the CAT, the IJ would issue a decision granting the appropriate protection, but the IJ would not vacate the removal order issued by the asylum officer.58
The Departments propose that either party may appeal the IJs decision rendered in the new proceedings under 8 CFR 1003.48 to the BIA in accordance with the standard EOIR appeal procedures that currently apply to removal proceedings, including the submission of a Form EOIR26, Notice of Appeal from a Decision of an Immigration Judge. See generally 8 CFR
1003.3, 1003.38. The Departments also propose to amend 8 CFR 1003.1b to make clear that a noncitizen may appeal the IJs decision to the BIA and that the review of these decisions is within the BIAs jurisdiction. And, as with BIA
decisions in removal proceedings, the noncitizen may seek judicial review before the appropriate circuit court of appeals. See INA 242, 8 U.S.C.
1252a1.59 Accordingly, noncitizens 58 A grant of withholding of removal does not afford a noncitizen any permanent right to remain in the United States and does not prevent the DHS from removing a noncitizen to a country other than the one to which removal has been withheld. Guzman Chavez, 141 S. Ct. at 2286
quoting Matter of I-S- & C-S-, 24 I&N Dec. 432, 434
BIA 2008. That presupposes the issuance of a removal order to preserve DHSs discretion to remove the noncitizen to a third country. See id. at 228788 noting that it is axiomatic that in order to withhold removal there must first be an order of removal that can be withheld internal quotation marks and citation omitted.
59 The courts of appeals have jurisdiction to review a final order of removal. INA 242a1, 8
U.S.C. 1252a1. As several courts of appeals have
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under the proposed regulations would have opportunities at four levels to have their claims for asylum, withholding of removal, or deferral of removal considered: First during a nonadversarial hearing before an asylum officer and then, if necessary, on review by an IJ, the BIA, and the appropriate circuit court of appeals.
F. Severability Upon the completion of the notice and comment period provided for herein and subsequent issuance of a final rule, to the extent that any portion of the resulting final rule is stayed, enjoined, not implemented, or otherwise held invalid by a court, the Departments intend for all other parts of the final rule that are capable of operating in the absence of the specific portion that has been invalidated to remain in effect. Thus, even if a judicial decision invalidating a portion of the final rule results in a partial reversion to the current regulations or to the statutory language itself, the Departments intend that the rest of the final rule continue to operate in tandem with the reverted provisions, if at all possible. The Departments seek comment on whether and which of the regulatory provisions proposed herein should be severable from one another.
G. Discretion/Phased Implementation The Departments believe that the proposed changes in this rule are necessary to establish a more held, that grant of jurisdiction includes the authority to review a conclusion that an otherwiseremovable noncitizen is ineligible for asylum, even whereunlike under the present ruleno formal order of removal has been entered. Mitondo, 523
F.3d at 787; see Shehu v. Atty Gen., 482 F.3d 652, 656 3d Cir. 2007; Kanacevic v. INS, 448 F.3d 129, 13435 2d Cir. 2006; Nreka v. Atty Gen., 408 F.3d 1361, 136667 11th Cir. 2005. The courts of appeals do not have jurisdiction to review an order of removal without a hearing pursuant to 8 U.S.C.
1225b1. INA 242a1, 8 U.S.C. 1252a1; see INA 242a2A, 8 U.S.C. 1252a2A additional limits on review of matters related to removal orders issued pursuant to INA 235b1, 8 U.S.C.
1225b1. That limitation does not apply here. An order of removal entered after an asylum officer conducts a full hearing on a noncitizens asylum application is not an order or removal without a hearing. And, in the context of INA 242s limits on judicial review, the references to an order of removal issued pursuant to INA 242b1, 8
U.S.C. 1225b1, most naturally is read to encompass only the orders expressly described in that provision: An order issued when a noncitizen subject to expedited removal does not indicate an intention to apply for asylum or a fear of persecution, INA 235b1Ai, 8 U.S.C.
1225b1Ai, or an order issued when a noncitizen is found not to have a credible fear of persecution, INA 235b1BiiiI,8 U.S.C.
1225b1BiiiI. Cf. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069 2020 applying the presumption favoring judicial review of administrative action in construing another limit on judicial review in INA 242, 8 U.S.C. 1252.

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streamlined and timely adjudication process for individuals who establish a credible fear of persecution or torture, while simultaneously ensuring fundamental fairness. The Departments emphasize, however, that this proposed rule would provide DHS the discretion to continue placing such individuals directly into section 240 removal proceedings before an IJ. This discretion may be exercised, for example, when a noncitizen with a positive credible fear determination may have committed significant criminal activity, have engaged in past acts of harm to others, or pose a public safety or national security threat. In some cases, DHS may determine that it is more appropriate for such noncitizens protection claims to be heard and considered in the adversarial process before an IJ.
Additionally, if the Departments decide to issue a final rule implementing this new process during FY 2022, DHS would also need to continue to place many noncitizens receiving a positive credible fear determination into section 240 removal proceedings, while USCIS takes the steps needed to allow it to fully implement this new process for all cases. As discussed below in greater detail in the costs and benefits analysis of this proposal and its impacts on USCIS, as required under Executive Orders 12866 and 13563, USCIS has estimated that it will need to hire approximately 800 new employees and spend approximately $180 million to fully implement the proposed asylum officer hearing and adjudication process to handle approximately 75,000 cases annually. If the number of noncitizens placed into expedited removal and making successful fear claims increases significantly above that estimate, the cost to implement this proposed rule with staffing levels sufficient to handle the additional cases in a timely fashion would be substantially higher.60 Until USCIS is able to support full implementation, USCIS would need to continue to place a large percentage of individuals receiving a positive credible fear determination into section 240
removal proceedings. This exercise of discretion is similar to and in line with DHSs recognized prosecutorial discretion to issue an NTA to a covered 60 USCIS presently has over 400,000 pending affirmative asylum applications awaiting interview or adjudication. In proposing this rule, the Departments seek to avoid simply shifting work from a resource-challenged EOIR to a similarly resource-challenged USCIS Asylum Division. DHS
seeks to fully resource the USCIS Asylum Division to handle their present workloads and this new workload prior to the USCIS full takeover of the adjudication of protection claims that follow a positive credible fear determination.

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