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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
removal, and determined to have a credible fear of persecution or torture, with the aim of adjudicating applications for asylum, statutory withholding of removal, and CAT
protection in a timelier fashion and in conformity with procedural protections against erroneous denial of relief or protection. The principal facet of the rule is to transfer the initial responsibility for adjudicating asylum, statutory withholding of removal, and CAT protection applications from IJs to USCIS asylum officers for individuals within expedited removal proceedings who receive a positive credible fear determination.
The proposed rule also would broaden the circumstances in which individuals making a fear claim during the expedited removal process could be considered for parole on a case-by-case basis prior to a positive credible fear determination being made. For such individuals, parole could be granted as an exercise of discretion not only where
required to meet a medical emergency or for a legitimate law enforcement objective, but also where detention is unavailable or impracticable.
DHS intends to apply this proposed rule only to recently-arrived individuals who are subject to expedited removal i.e., adults and families. The proposed rule does not apply to unaccompanied children, as they are statutorily exempt from being placed into expedited removal. It also does not apply to individuals already residing in the United States and whose presence in the United States is outside the coverage of noncitizens designated by the Secretary as subject to expedited removal. The proposed rule also does not apply to 1
stowaways or 2 noncitizens who are present in or arriving in the Commonwealth of the Northern Mariana Islands who are determined to have a credible fear. They will continue to be referred to asylum/withholding-only hearings before an IJ under 8 CFR
208.2c. Finally, it is not legally
required that a noncitizen amenable to expedited removal after the effective date of the rule be placed in the nonadversarial review process described in this proposed rule. Rather, DHS
generally, and USCIS in particular, retains discretion to issue an NTA to a covered noncitizen in expedited removal proceedings to instead place them in section 240 removal proceedings at any time after they are referred to USCIS for a credible fear determination. See Matter of E-R-M- &
L-R-M-, 25 I&N Dec. at 523; see also 8
CFR 1208.2c.
In this section we provide some data and information relevant to the ensuing discussion and analysis of the potential impacts of the rule. We first present USCIS data followed by EOIR data.
Table 3 shows USCIS data for the Form I589 and credible fear cases for the five-year span from FY 2016 through FY
2020.

TABLE 3USCIS FORM I589, APPLICATION FOR ASYLUM AND FOR WITHHOLDING OF REMOVAL, AND CREDIBLE FEAR
DATA
FY 20162020 64
Form I589 receipts FY

2016
2017
2018
2019
2020

Initial receipts
Pending receipts
Credible fear completions Positive screen
Negative screen
All completions
Total credible fear cases 65

115,888
142,760
106,041
96,861
93,134

194,986
289,835
319,202
349,158
386,014

73,081
60,566
74,677
75,252
12,824

9,697
8,245
9,659
16,679
16,134

82,778
68,811
84,336
91,931
28,958

94,048
79,842
99,035
102,204
30,839

Total

554,684

N/A

296,400

60,414

356,814

405,968

5-year Average

110,937

307,839

59,280

12,083

71,363

81,194

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Source: USCIS Office of Performance and Quality OPQ, and USCIS Refugee, Asylum, and International Operations RAIO Directorate, CLAIMS 3 database, Global received May 11, 2021.
64 In FY 2020, the credible fear filings are captured in the Form I870, Record of Determination/Credible Fear Worksheet. As part of the credible fear screening adjudication, USCIS Asylum Officers prepare Form I870, Record of Determination/Credible Fear Worksheet. This worksheet includes biographical information about the applicant, including the applicants name, date of birth, gender, country of birth, nationality, ethnicity, religion, language, and information about the applicants entry into the United States and place of detention. Additionally, Form I870 collects sufficient information about the applicants marital status, spouse, and children to determine whether they may be included in the determination. Form I870 also documents the interpreter identification number of the interpreter used during the credible fear interview and collects information about a relative or sponsor in the United States, including their relationship to the applicant and contact information. In previous years credible fear filings included the Form I867, Credible Fear Referral. Prior to FY 2020, the USCIS Asylum Division electronically received information about credible fear determinations through referral documentation provided by U.S. Customs and Border Protection. The referral documentation includes a form containing information about the applicant: Form I867, Credible Fear Referral.
65 The credible fear total receipts are larger than the sum of positive and negative determinations because the latter apply to completions, referring to cases forwarded to EOIR, and thus exclude cases that were administratively closed.

As can be seen from Table 3, the Form I589 pending case number has grown steadily since 2016, and as of May 11, 2021, was 400,200, which is well above the five-year average of 307,839. Over that same period, the majority, 83.1
percent, of completed credible fear screenings were positive, while 16.9
percent were negative.66
66 Calculation: Positive completions total 296,400/total completions 296,400 + 60,414 =

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In addition to the credible fear case data presented in Table 3, USCIS data and analysis can provide some insight concerning how long it has taken for the credible fear screening process to be completed. As detailed in this preamble, while this proposed rules primary 296,400/356,814 = 0.831 100 = 83.1 percent rounded; negative completions total 60,414/total completions 356,814 = 0.169 100 = 16.9 percent rounded.

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concern is the length of time before incoming asylum claims are expected to be adjudicated by EOIR, changes to USCIS processes enabled by this proposed rule including, for example, improved systems for conducting credible fear interviews for individuals who are not in detention facilities are also expected to reduce processing times for credible fear cases. Table 4

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