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khammond on DSKJM1Z7X2PROD with PROPOSALS2

Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules proposed rule also would not apply to individuals already residing in the United States who are not designated by the Secretary as subject to expedited removal.30 Such individuals would continue to have their asylum claims heard in removal proceedings under section 240 of the INA, or through an affirmative asylum application under section 208 of the INA if they have not yet been placed into removal proceedings. The proposed rule also would 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. Such individuals would continue to be referred to asylum/withholding-only proceedings before an IJ under 8 CFR
208.2c.
Finally, the Departments clarify that nothing in this proposed rule, if finalized, is intended to displace DHSs and, in particular, USCISs prosecutorial discretion to place a covered noncitizen in, or to withdraw a covered noncitizen from, expedited removal proceedings and issue a Notice to Appear NTA to place the noncitizen 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. 520, 523 BIA
2011.
The credible fear screening regulations proposed under this rule generally would recodify the current screening process, returning the regulatory language, in large part, to what was in place prior to the various regulatory changes made from the end of 2018 through the end of 2020.
Noncitizens encountered at or near the border or ports of entry can be placed into expedited removal and provided a credible fear screening if they indicate an intention to apply for asylum, a fear of persecution or torture, or a fear of return to their home countries. See INA
235b1Aii, B, 8 U.S.C.
1225b1Aii, B; 8 CFR 235.3b4, 1235.3b4i. Individuals claiming a fear or an intention to apply for protection are referred to USCIS asylum officers for an interview and consideration of their fear claims under the credible fear screening standard, which applies to all relevant protection claims. If an asylum officer determines that an individual does not have a admission and be voluntarily returned to their country of nationality or country of last habitual residence. Actual removal proceedings for unaccompanied children, whether from contiguous countries or not, however, must be under section 240 of the INA.
30 See supra note 4.

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credible fear of persecution or torture, the individual can request that an IJ
review the asylum officers negative credible fear determination. See INA
235b1BiiiIII, 8 U.S.C.
1225b1BiiiIII; 8 CFR 208.30g, 1208.30g. If the IJ concurs with the asylum officers negative credible fear determination, no administrative appeal is available, 8 CFR 1208.30g2ivA, and DHS can execute the individuals expedited removal order, promptly removing the individual from the United States.
If the noncitizen is found to have a credible fear, however, the proposed rule would change the procedures in place prior to this rulemaking that are described above. Under this proposed rule, rather than referring the individual to an IJ for an adversarial removal proceeding under section 240 of the INA, or, as provided for in a presentlyenjoined regulation, an asylum/
withholding-only hearing, the individuals asylum application instead could be retained by USCIS for a nonadversarial hearing before an asylum officer. See 8 CFR 208.30f proposed.
Similarly, if, upon review of an asylum officers negative credible fear determination, an IJ finds that an individual does have a credible fear of persecution or torture, the individual also could be referred back to an asylum officer for proceedings on the individuals protection claims. Id.
1003.42, 1208.30g. The Departments plan to implement these procedures by having asylum hearings conducted for those individuals who are referred to or retained by USCIS after the positive credible fear determination would be adjudicated in a separate queue, apart from adjudications made with respect to affirmative asylum applications filed directly with USCIS. The individual would have the right to representation during this proceeding. Id. 208.9b. If, at the conclusion of an asylum hearing described in this proposed rule, the asylum officer grants asylum, the individual would be allowed to remain in the United States indefinitely with the status of asylee and eventually may apply for lawful permanent residence. Id.; see also INA 208c1, 209b, 8 U.S.C. 1158c1, 1159b. If the asylum officer denies asylum and orders the individual removed based on the immigration officers initial inadmissibility determination under section 235b1Ai of the INA, 8
U.S.C. 1225b1Ai, the asylum officer will also issue a decision regarding withholding or deferral of removal. 8 CFR 208.14c5 proposed.
An individual who is denied asylum
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may request review by an IJ of the asylum decision, as well as any denial of withholding or deferral of removal.
Id. 208.14c5i, 1003.48a.
In cases in which a noncitizen seeks review of an asylum officers adverse decision, the Departments propose that the IJ would make an independent de novo determination based on the record of the hearing before the Asylum Office plus any additional, non-duplicative evidence presented to the court that is necessary to reach a reasoned decision.
Id. 1003.48e proposed. The individual would also have the right, consistent with the INA, to representation during this review. See 8
CFR 1003.12 proposed providing that the rules in this subpart apply to the proposed proceedings under 8 CFR
1003.48; 8 CFR 1003.16b providing that a noncitizen may be represented in proceedings before an Immigration Judge by an attorney or other representative. The IJ also would be authorized to vacate proceedings when the judge finds the individual is prima facie eligible for other forms of relief from removal, so that DHS, in the exercise of DHSs discretion, could place the noncitizen into removal proceedings under section 240 of the INA, 8 U.S.C. 1229a. See 8 CFR
1003.48d proposed.
Finally, the rule proposes that both parties would be able to appeal the IJs decision to the BIA under procedures similar to those used in section 240
removal proceedings and asylum/
withholding-only proceedings under 8
CFR 208.2c, 1208.2c. See 8 CFR
1003.1b15 proposed. In addition, the individual would be able to petition for review of the BIA decision with the Federal courts. See infra note 59.
B. DOJ and DHS Authority To Propose This Rule The Attorney General and the Secretary jointly propose this rule pursuant to their respective authorities concerning asylum determinations. The Homeland Security Act of 2002
HSA, Public Law 107296, 116 Stat.
2135, as amended, created DHS and transferred to it many functions related to the execution of Federal immigration law. The HSA charged the Secretary with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, INA
103a1, 8 U.S.C. 1103a1, and granted the power to take all actions necessary for carrying out the Secretarys authority under the immigration laws, INA 103a3, 8
U.S.C. 1103a3. The Secretarys authority also includes the authority to
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