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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules recommended change; and include data, information, or authority that support such recommended change. Comments submitted in a manner other than the one listed above, including emails or letters sent to departmental officials, will not be considered comments on the proposed rule and may not receive a response from the Departments.
Instructions: If you submit a comment, you must include the agency name U.S. Citizenship and Immigration Services and the DHS Docket No.
USCIS20210012 for this rulemaking.
All submissions will be posted, without change, to the Federal eRulemaking Portal at https www.regulations.gov and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to the Departments. The Departments may withhold from public viewing information provided in comments that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy and Security Notice available at https
www.regulations.gov.
Docket: For access to the docket and to read background documents or comments received, go to https
www.regulations.gov, referencing DHS
Docket No. USCIS20210012. You also may sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.
II. Background There is wide agreement that the system for dealing with asylum and related protection claims at the southwest border has long been overwhelmed and in desperate need of repair.1 As the number of such claims
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1 See
DHS, Homeland Security Advisory Council, Final Emergency Interim Report: CBP Families and Children Care Panel, at 1 Apr. 16, 2019, https
www.dhs.gov/sites/default/files/publications/19_
0416_hsac-emergency-interim-report.pdf; Randy Capps et al., From Control to Crisis: Changing Trends and Policies Reshaping U.S.-Mexico Border Enforcement 7, Migration Policy Institute MPI
Aug. 2019, https www.migrationpolicy.org/sites/
default/files/publications/BorderSecurityControltoCrisis-Report-Final.pdf as arrivals have surged to levels unseen in years, border enforcement and asylum systems have been overwhelmed; Lora Ries, Securing the Border and Fixing Our Broken Immigration System, Heritage Foundation Sept. 21, 2020, https
www.heritage.org/immigration/commentary/
securing-the-border-and-fixing-our-brokenimmigration-system our immigration court system is so overwhelmed, asylum cases of merit are combined with meritless cases, each of which can take years to resolve; Greg Chen & Peter
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has skyrocketed over the years, the system has proven unable to keep pace, resulting in large backlogs and lengthy adjudication delays. A system that takes years to reach a result is simply not a functional one. It delays justice and certainty for those who need protection, and it encourages abuse by those who will not qualify for protection and smugglers who exploit the delay for profit. The aim of this rule is to begin replacing the current system, within the confines of the law, with a better and more efficient one that will adjudicate protection claims fairly and expeditiously. The proposed rule would accomplish this goal by transferring the initial responsibility for adjudicating asylum and related protection claims 2
made by noncitizens encountered at or near the border from IJs in EOIR to asylum officers in USCIS. The proposed rule would also provide for the prompt filing of asylum applications by such individuals, while also providing ample procedural safeguards designed to ensure due process, respect human dignity, and promote equity.
The current U.S. protection system at the border was initially designed in the mid-1990s.3 Congress established an expedited removal process for noncitizens who present themselves at a port of entry for inspection or are encountered at or near the border and who are found to be inadmissible because they lack valid entry documents or because they sought to enter the United States by fraud or misrepresentation. INA 235b1Ai, 8
U.S.C. 1225b1Ai; INA 212a6C, 7, 8 U.S.C. 1182a6C, 7. Congress authorized DHS to extend the expedited removal process to certain noncitizens apprehended shortly after crossing the border unlawfully, and DHS has exercised that authority. INA
235b1Aiii, 8 U.S.C.
1225b1Aiii.4
Markowitz, Recommendations for DOJ and EOIR
Leadership To Systematically Remove Non-Priority Cases from the Immigration Court Backlog 1, Am.
Immigr. Law. Assn Feb. 11, 2021, https
www.aila.org/infonet/remove-non-priority-cases The bottleneck for the entire removal system caused by the court backlog, if not addressed quickly, presents a serious obstacle to the Biden administrations goal of ensuring the fair and efficient processing of all removal cases..
2 The generic term protection claims is used here to refer to all three forms of protection addressed in this proposed rule asylum, statutory withholding of removal, and protection from removal under the regulations implementing U.S.
obligations under Article 3 of the CAT.
3 See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104208, div. C, 110 Stat. 3009, 3009546 1996 IIRIRA.
4 The former Immigration and Naturalization Service INS initially implemented expedited removal only against noncitizens arriving at ports of entry. In 2002, DHS expanded the application of
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A DHS immigration officer who encounters a noncitizen subject to expedited removal may order the noncitizen to be removed from the United States without further hearing or review unless the noncitizen indicates either an intention to apply for asylum or a fear of persecution. INA
235 b1Ai, 8 U.S.C.
1225b1Ai. If the noncitizen indicates such an intention or fear, the immigration officer must refer the noncitizen for an interview by an asylum officer to determine whether the noncitizen has a credible fear of persecution. INA 235b1Aii, Bii, 8 U.S.C. 1225b1Aii, Bii.
A credible fear is defined by statute as a significant possibility that the noncitizen could establish eligibility for asylum. INA 235b1Bv, 8 U.S.C.
1225b1Bv. Before various regulatory changes published between 2018 and 2020, explained in greater detail below, the significant possibility standard also was applied to screening for eligibility for statutory withholding of removal and CAT
protection.5 Because those recent regulatory changes have been vacated or enjoined, the significant possibility standard presently applies to all three forms of protection claims.6 If the asylum officer determines that the noncitizen lacks a credible fear, that determination is subject to expedited review by an IJ, but not by the BIA or an Article III court. INA
235b1BiiiIII, 8 U.S.C.
1225b1BiiiIII; see INA
expedited removal to noncitizens who 1 entered the United States by sea, either by boat or other means, 2 were not admitted or paroled into the United States, and 3 have not been continuously present in the United States for at least 2 years.
Notice Designating Aliens Subject to Expedited Removal Under Section 235b1Aiii of the Immigration and Nationality Act, 67 FR 68924
Nov. 13, 2002. In 2004, DHS published an immediately effective notice in the Federal Register to expand the application of expedited removal to noncitizens encountered within 100 miles of the border and to noncitizens who entered the United States without inspection fewer than 14 days before they were encountered. Designating Aliens for Expedited Removal, 69 FR 48877 Aug. 11, 2004.
In 2019, DHS expanded the process to the full extent authorized by statute to reach noncitizens who entered the country without inspection less than 2 years before being apprehended and who were encountered anywhere in the United States.
Designating Aliens for Expedited Removal, 84 FR
35409 July 23, 2019. President Biden has directed DHS to consider whether to modify, revoke, or rescind that 2019 expansion. E.O. 14010, Ensuring a Timely and Fair Expedited Removal Process, 86
FR 8267, 827071 Feb. 2, 2021.
5 See generally Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100
20, 1465 U.N.T.S. 85 entered into force for United States Nov. 20, 1994.
6 See infra note 24.

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