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Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Rules and Regulations
to clarify that in certain circumstances there are reasonable grounds for regarding an alien as a danger to the security of the United States or reasonable grounds to believe that an alien is a danger to the security of the United States based on emergency public health concerns generated by a communicable disease, making the alien ineligible to be granted asylum in the United States under section 208 of the Immigration and Nationality Act or the protection of withholding of removal under that Act or subsequent regulations because of the threat of torture. See Security Bars and Processing, 85 FR 84160 et seq. Dec. 23, 2020. The rule was scheduled to take effect on January 22, 2021.
On January 20, 2021, the White House Chief of Staff issued a memorandum asking agencies to consider delaying, consistent with applicable law, the effective dates of any rules that have published and not yet gone into effect, for the purpose of allowing the Presidents appointees and designees to review questions of fact, law, and policy raised by those regulations. See Memorandum for the Heads of Executive Departments and Agencies from Ronald A. Klain, Assistant to the President and Chief of Staff, Re:
Regulatory Freeze Pending Review Jan.
20, 2021. As of January 21, 2021, the Departments delayed the effective date of the Security Bars rule to March 22, 2021, consistent with that memorandum and a preliminary injunction in place with respect to a related rule, as discussed below. See Security Bars and Processing; Delay of Effective Date, 86
FR 6847 Jan. 25, 2021.
The Departments have good cause to delay this rules effective date further without advance notice and comment because implementation of this rule is not feasible due to a preliminary injunction against a related rule. The provisions of the Security Bars rule are premised upon, and reliant upon, the revisions to the Departments asylum rules previously made by a separate joint rule that became effective before the Security Bars rule was scheduled to take effect. The Departments issued the Global Asylum rule, entitled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, on December 11, 2020.1 On January 8, 2021, in the case of Pangea Legal Services v.
Department of Homeland Security, a district court preliminarily enjoined the Departments from implementing, enforcing, or applying the Global Asylum final rule . . . or any related 1 See
85 FR 80274 Dec. 11, 2020.

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policies or procedures. 2 The preliminary injunction remains in place.
As the Departments noted in their previous rule delaying the January 22, 2021, effective date for the Security Bars rule, because of the preliminary injunction in effect against implementation of the Global Asylum final rule, implementing the Security Bars rule is not viable at this time, as the two rules are intertwined.3 Specifically, the Security Bars rule relies upon the regulatory framework for applying bars to asylum during credible fear processing that was established in the Global Asylum final rule.4 The Notice of Proposed Rulemaking NPRM for the Security Bars rule, which was published on July 9, 2020, included proposed regulatory text instructing adjudicators to apply the bar during credible and reasonable fear screenings.5 This proposal would have created an exception to the then-existing rule that the statutory bars to asylum and withholding of removal, including the danger to the security of the United States bars underlying the Security Bars rule, were not to be considered during the credible and reasonable fear screening processes.6 The proposed rule justified this exception as necessary to allow DHS to quickly remove individuals covered by the bars, rather than sending them to full removal 2 Nos. 2009253JD & 2009258JD, 2021 WL
75756, at 7 N.D. Cal. Jan. 8, 2021. The U.S.
District Court for the Northern District of California held that the plaintiffs, who had brought two related actions, had shown a likelihood that Chad F. Wolf, who approved the Global Asylum final rule in his capacity as Acting Secretary of Homeland Security, did not have valid authority to act in that capacity. See id. at 6. The District Court did not reach any other ground for issuing the injunction.
See id. Following the courts ruling, Acting Secretary of Homeland Security Peter T. Gaynor and Mr. Wolf took steps to ratify the Global Asylum final rule. See DHS Delegation No. 23028, Delegation to the Under Secretary for Strategy, Policy, and Plans to Act on Final Rules, Regulations, and Other Matters Jan. 12, 2021;
Chad F. Wolf, Ratification Jan. 14, 2021. By issuing this rule delaying the effective date of the Security Bars rule, the Departments are not indicating their position on Mr. Gaynor or Mr.
Wolfs actions or authority, or on the outcome thus far in Pangea.
3 See 86 FR at 6847.
4 See, e.g., 85 FR at 84176 As noted, the Security Bars final rule is not, as the NPRM
proposed, modifying the regulatory framework to apply the danger to the security of the United States bars at the credible fear stage because, in the interim between the NPRM and the final rule, the Global Asylum final rule did so for all of the bars to eligibility for asylum and withholding of removal.; id. at 84189 describing changes made in the Security Bars rule to certain regulatory provisions not addressed in the proposed rule as necessitated by the intervening promulgation of the Global Asylum final Rule.
5 Security Bars and Processing, 85 FR 41201, 412162012;17, 41218 July 9, 2020.
6 See id. at 41207.

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proceedings for adjudication of their asylum and withholding of removal claims, which can take months or even years.7 The NPRM explained that applying the bars during credible fear and reasonable fear screenings was necessary to reduce health and safety dangers to both the public at large and DHS officials.8 Indeed, applying these bars only after the affected individuals have been present in the United States for an extended period of time would do little, if anything, to prevent the spread of such diseases, significantly undercutting the justification for the Security Bars rule.
While DHS and DOJ were reviewing the comments submitted in response to the Security Bars NPRM, the Global Asylum final rule was published on December 11, 2020.9 The Global Asylum final rule changed the general practice described above to apply all statutory bars to asylum and withholding of removal during credible and reasonable fear screenings.10 The Security Bars final rule, which was published on December 23, 2020, therefore revised the proposed text explicitly to rely on the changes made by the Global Asylum final rule.11 As a result, the regulatory text of significant portions of the Security Bars rule relies upon and repeats broader regulatory text that was established by the Global Asylum final rule, applying all bars to asylum and withholding of removal during credible and reasonable fear screenings.12 The Security Bars final rule assumed that the Global Asylum rule would be in effect and therefore the Security Bars final rule did not change the credible fear and reasonable fear framework.13 As a result, the overlap between the two rules now has created a situation in which the Departments would risk violating the injunction against the Global Asylum final rule if they were to implement the identical portions of the Security Bars final rule, and the Departments could not implement the narrower change to the credible fear and reasonable fear framework proposed in 7 Id.

at 4121012.
at 41210.
9 85 FR 80274 Dec. 11, 2020.
10 Id. at 80391.
11 85 FR 84160, 8417477.
12 See, e.g., id. at 8419498 revising 8 CFR
208.30, 235.6, 1208.30, and 1235.6, among other provisions accord 85 FR at 8039080401 same.
13 See id. at 84175 The Departments note that the final rule is not, as the NPRM proposed, modifying the regulatory framework to apply the danger to the security of the United States bars at the credible fear stage. In the interim between the NPRM and the final rule, the Global Asylum Final Rule did so for all of the bars to eligibility for asylum and withholding of removal..
8 Id.

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