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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
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threshold screening under the safe third country agreement with Canada paragraph e6, and continue to require supervisory review of all credible fear determinations before they can become final paragraph e8. The Departments seek comment on these changes and also request comment on whether any additional changes to the provisions of the Global Asylum and Security Bar rules are necessary or appropriate to accomplish the objectives outlined in this section.
As part of the proposed restructuring of the credible fear determination framework, the proposed rule would also remove the current language at 8
CFR 208.30g2i providing that DHS
may reconsider a negative credible fear finding that has been reviewed and upheld by an IJ.39 Section 208.30g1i would be revised to provide that once the asylum officer has made a negative credible fear determination, the individual either requests IJ review or declines to request review and that declination is treated as a request for review and the individual is served with a Form I863. At that point, under the proposed rule, the IJ has sole jurisdiction to review whether the individual has established a credible fear of persecution or torture, and an asylum officer may not reconsider or reopen the determination.
These proposed changes reflect an intention to return to the statutory scheme of INA 235b1B, 8 U.S.C.
1225b1B, under which it is the IJ
review of the credible fear determination that serves as the check to ensure that individuals who have a credible fear are not returned based on an erroneous screening determination by USCIS. Section 208.30g1i is amended to provide that, when DHS
inquires whether an individual wishes to have an IJ review a negative credible modified or rescinded by the Departments at a later date. See, e.g., OMB, Agenda Rule ListSpring 2021: Department of Homeland Security, https
www.reginfo.gov/public/do/
eAgendaMain?operation=OPERATION_GET_
AGENCY_RULE_LIST¤tPub=true&agency Code=&showStage=active&agencyCd=1600. The Departments, however, do seek comment on whether the changes proposed in this rule would require any other rescissions or modifications of the provisions adopted in recent prior rulemakings.
39 The proposed versions of the Global Asylum rule and the Security Bars rule both dropped the regulatory provision previously in 8 CFR
1208.30g2 that acknowledged USCISs ability to reconsider a negative credible fear finding that had already received IJ concurrence, but the Departments responded to comments received about this change by reinserting the provision into 8 CFR 208.30g in the final rules, stating that the provision had been omitted from the proposed rule inadvertently. 85 FR at 80275, 84181. This proposed rule again proposes this change but does so for the reasons provided herein.

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fear determination, DHS will inform the individual that the IJ review will include an opportunity for the individual to be heard and questioned by the IJ. See 8 CFR 208.30g1
proposed. This opportunity will allow such individuals to present any additional evidence or arguments they may wish to make to the IJ, who will consider them in making a de novo determination about whether the individual has a credible fear of persecution or torture.
The clarification that the IJ has sole jurisdiction to review the individuals negative credible fear determination and that asylum officers may not reconsider or reopen a determination that already has passed to the jurisdiction of the IJ
is necessary to ensure that requests for reconsideration to USCIS do not obstruct the streamlined process that Congress intended in creating expedited removal. Further, this clarification ensures that the necessary efficiencies implemented in this proposed rule are not undermined.
The expedited removal statute and its implementing regulations generally prohibit any further administrative review or appeal of an IJs decision made after review of a negative credible fear determination. See INA
235b1BiiiIII, C, 8 U.S.C.
1225b1BiiiIII, C; 8 CFR
1003.42f2, 1208.30g2ivA.
Congress similarly has made clear its intent that expedited removal should remain a streamlined, efficient process by limiting judicial review of many determinations in expedited removal.
See INA 242a2A, e, 8 U.S.C.
1252a2A, e. These provisions limiting administrative and judicial review and directing expeditious determinations reflect clear congressional intent that expedited removal be a truly expedited process.
Removal of the current language at 8
CFR 208.30g2i allowing DHS to reconsider negative credible fear determinations after the IJ concurs is consistent with that congressional intent and with the purpose of the current regulation.
In recent years, USCIS has received growing numbers of meritless reconsideration requests, which have strained agency resources and resulted in significant delays to the expedited removal process. The total time to review a reconsideration request varies widely, but if an office recommends a follow-up interview, then the complete review process could take more than 5
hours per request. The Departments believe that these resources could be far better spent, including in training and supervisory efforts, to ensure the high
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quality of USCIS initial screening determinations. In many cases, reconsideration requests that previously were considered are resubmitted numerous times without additional information, resulting in additional delays in removal processes that Congress explicitly intended to be conducted through streamlined, efficient procedures.
These developments have highlighted the need to ensure that the IJ review process, rather than reconsideration by USCIS, serves as the safeguard against erroneous negative screening determinations by an asylum officer.
These changes will ensure that DOJ and DHS implementation of the expedited removal provisions is consistent with statutory intent. The Departments believe these changes will help accomplish the purpose of the present rule to make the framework of the screening process, including the process following USCISs fear determination, more efficient and streamlined, while ensuring due process is accorded to all individuals in expedited removal. The Departments seek comments on these proposed changes, including on other options short of eliminating reconsideration entirelysuch as imposing restrictions on, or modifications to, reconsideration requests made to USCISto address the problems outlined above, while also ensuring efficiency and the opportunity to have ones protection claim properly screened.
C. Applications for AsylumProposed 8
CFR 208.3a and 208.9a The expedited removal statute specifically provides for an exception to the mandate that a noncitizen be removed from the United States without further hearing or review when the noncitizen expresses an intention to apply for asylum, a fear of persecution or torture, or a fear of return to the country of removal. Such a person instead is referred to USCIS for a credible fear screening. INA
235b1Aii, 8 U.S.C.
1225b1Aii. If the noncitizen is found to have a credible fear of removal, the noncitizens claim is referred for further consideration of the application for asylum. INA 235b1Bii, 8
U.S.C. 1225b1Bii. This statutory language, however, does not specify the nature of such further consideration.
Under current regulations, an individual who establishes a credible fear is placed into removal proceedings under section 240 of the INA, 8 U.S.C.
1229a. Under this process, the individual is not required to officially request asylum or file the Form I589,
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