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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
authorizes release from custody and cannot serve as an independent basis for employment authorization under 8 CFR
274a.12c11.32 See 8 CFR
235.3b4ii proposed. The Departments are seeking public comment on this change in the circumstances under which parole may be considered in the expedited removal context, as well as the use of c11
employment authorization documents EADs for those in expedited removal who have been paroled from custody.

khammond on DSKJM1Z7X2PROD with PROPOSALS2

B. Credible Fear Screening Process Proposed 8 CFR 208.30
As noted earlier, there were several rules published by the Departments from the end of 2018 through the end of 2020 that attempted to change the credible fear screening process that had been in place for approximately 20
years, but these rules are not in effect.33
The Global Asylum rule, which, as explained above, has been enjoined, attempted to change the pre-2018
practice of not applying the mandatory bars to asylum and statutory withholding in the credible fear screening process, instead requiring a final determination on the applicability of a significantly expanded list of mandatory bars during credible fear screenings and mandating a negative credible fear finding should any of the bars be determined to apply to the noncitizen at that initial stage. 85 FR at 80278. In addition, the Global Asylum rule attempted to alter the longstanding practice for screening claims for statutory withholding of removal and CAT protection. Prior to the rule, the statutory standard for screening asylum claims i.e., a significant possibility of establishing eligibility for asylum was also used to screen withholding of removal and CAT claims. The Global 32 As noted elsewhere in this preamble, this proposed rule is not intended to rescind previously enjoined or vacated rules. Accordingly, the Departments are proposing that those in the credible fear process who have been paroled from custody would be ineligible for a c11
employment authorization document EAD, similar to what was implemented with the final rule entitled Asylum Application, Interview, and Employment Authorization for Applicants, 85 FR
38532, 38582 June 26, 2020. A Federal district court preliminarily enjoined certain provisions of the rule but only as applied to the plaintiffs in that case, and the EAD-parole provision similar to the one proposed here was not challenged in that litigation. See Casa de Maryland, Inc. v. Wolf, 486
F. Supp. 3d 928, 935 D. Md. 2020 preliminarily enjoining Defendants from enforcing a subset of the rule changes as applied to the individual members of Plaintiffs Casa de Maryland, Inc.
CASA and Asylum Seeker Advocacy Project ASAP. The Departments are seeking public comment on the use of c11 EADs for those in expedited removal who have been paroled from custody.
33 See supra note 24.

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Asylum rule attempted to create a more complicated two-step, two-standard screening by requiring a higher screening standard for such claims i.e., a reasonable possibility of persecution or torture. Id. The Security Bars rule, issued less than 2 weeks after the Global Asylum rule, further expanded the list of mandatory bars to asylum that would apply in the credible fear screening process, 85 FR at 84160, but its implementation has been delayed until the end of 2021, 86 FR at 15069.
With this proposed rule, the Departments generally seek to return the credible fear screening process regulations to the simpler screening process that was in place for expedited removals first two decades of implementation. Given the injunctions, delays, and vacaturs referenced above, this rule proposes to recodify in the Code of Federal Regulations the standard of significant possibility that has remained in effect since the rule changing that standard has been enjoined. Pangea Legal Servs. v. DHS, No. 20cv09253, 2021 WL 75756, at 7
N.D. Cal. Jan. 8, 2021 preliminarily enjoining the Global Asylum rule. The Departments believe that this change will make for a more efficient and effective credible fear screening process and is also necessary to make that screening process consistent with congressional intent.
The 104th Congress chose a screening standard intended to be a low screening standard for admission into the usual full asylum process. 34
Originally, the Senate bill had proposed a determination of whether the asylum claim was manifestly unfounded, while the House bill applied a significant possibility standard coupled with an inquiry into whether there was a substantial likelihood that the aliens statements were true. 35 In IIRIRA, Congress then struck a
compromise by rejecting the higher standard of credibility included in the House bill. 36 This proposed regulation would now return the screening standard to the low screening standard intended by the compromise reflected in the text that Congress ultimately passed. Rather than creating a complicated screening process that requires full evidence gathering and determinations to be made on possible bars to eligibility, this proposed rule aims to return to allowing protection claims with a significant possibility of success to be fully heard and adjudicated, but in a process that more quickly reaches a final decision on the merits than the current process.
To accomplish this, the proposed rule would replace all the references throughout 8 CFR 208.30 to a credible fear of persecution, reasonable possibility of persecution, or a reasonable possibility of torture with credible fear, acknowledging that the statutory significant possibility standard, INA 235b1Bv, 8 U.S.C.
1225b1Bv, would be applied in considering all three types of protection claimsasylum, statutory withholding, and protection under the CAT.37
Consistent with that change, the proposed rule would revise 8 CFR
208.30 to return the definition of the credible fear standard to the significant possibility definition provided in the statute paragraph e2, replace the reasonable possibility standard with the same significant possibility screening standard for statutory withholding of removal and CAT withholding or deferral of removal paragraphs e2
and 3, return the language in the regulation to reflect the existing and two-decade long practice of not applying the mandatory bars to the credible fear screening determination paragraph e5,38 maintain the
34 142 Cong. Rec. S11491 daily ed. Sept. 27, 1996 statement of Senate Judiciary Committee Chairman Orrin Hatch.
35 Id. The chairman of the conference committee assigned to reconcile the two bills, Rep. Henry Hyde, stated that the credible fear standard is redrafted in the conference document to address fully concerns that the more probable than not language in the original House version was too restrictive. 142 Cong. Rec. H11081 daily ed. Sept.
25, 1996 statement of House Judiciary Committee Chairman Henry Hyde. The exact language in section 302 of the House bill, H.R. 2202, 104th Cong. 1995, was as follows: the term credible fear of persecution means I that it is more probable than not that the statements made by the alien in support of the aliens claim are true, and II that there is a significant possibility, in light of such statements and of such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208. The conference committee compromise stuck subsection I from the definition of credible fear.

36 142 Cong. Rec. S11491 statement of Sen.
Hatch.
37 These proposed changes would not alter reasonable fear of persecution or torture determinations involving noncitizens ordered removed under section 238b of the INA, 8 U.S.C.
1228b, and noncitizens whose removal is reinstated under section 241a5 of the INA, 8
U.S.C. 1251a5, pursuant to 8 CFR 208.31.
38 This proposed rule does not, and is not intended to, rescind prior rulemakings, including Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act, 84 FR 63994 Nov. 19, 2019;
Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 FR 55934 Nov. 9, 2018; and Asylum Eligibility and Procedural Modifications, 85 FR 82260 Dec. 17, 2020. To that end, the Departments have proposed to change 8 CFR 208.30
only to the extent necessary to implement the changes proposed in this rule and left the remaining provisions of the aforementioned rules to be
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