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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
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noncitizen in expedited removal proceedings at any time after the covered citizen is referred to USCIS for a credible fear determination. See Matter of E-R-M- & L-R-M-, 25 I&N Dec.
at 523.
USCIS is primarily funded by immigration and naturalization benefit request fees charged to applicants and petitioners. Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account IEFA.
These fee collections fund the costs of adjudicating immigration benefit requests, including those provided without charge to refugee, asylum, and certain other applicants. The authority for establishing fees is found in section 286m of the INA, 8 U.S.C. 1356m, which authorizes DHS to charge fees for adjudication and naturalization services at a level to ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants.
The Chief Financial Officers Act of 1990 CFO Act, 31 U.S.C. 90103, requires each agencys chief financial officer to review, on a biennial basis, the fees, royalties, rents, and other charges imposed by the agency for services and things of value it provides, and make recommendations on revising those charges to reflect costs incurred by it in providing those services and things of value. 31 U.S.C. 902a8. USCIS
conducted a FY 2019 and 2020 IEFA fee review, as required under the CFO Act, and, as a result of that review, DHS
published an updated final fee rule on August 3, 2020, with an effective date of October 2, 2020. See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 FR 46788 Aug. 3, 2020. Implementation of that new fee rule was enjoined before its effective date, and USCIS has notified the public that it intends to continue to comply with the court injunctions.61 DHS
intends to rescind and replace the changes made by the August 3, 2020 fee 61 See Immigrant Legal Res. Ctr. v. Wolf, 491 F.
Supp. 3d 520, 526 N.D. Cal. 2020 enjoining the rule; Nw. Immigrant Rts. Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 41 D.D.C.
2020 same. On January 29, 2021, USCIS
published a Federal Register notice indicating that the agency was continuing to comply with these court orders. U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 86 FR 7493, 7493 Jan. 29, 2021.

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rule and establish new USCIS fees to recover USCIS operating costs.62
Current resource constraints would prevent the Departments from immediately achieving their ultimate goal of having the protection claims of nearly all individuals who receive a positive credible fear determination adjudicated by an asylum officer. The Departments believe that to fully implement the proposed rule, additional resources would be required. The Departments therefore propose that the new process be implemented in phases, as the necessary staffing and resources are put into place.
A phased implementation would allow the Departments to begin employing the proposed process in an orderly and controlled manner and for a limited number of cases, giving USCIS
the opportunity to work through operational challenges and ensure that each noncitizen placed into the process is given a full and fair opportunity to have any protection claim presented, heard, and properly adjudicated in full conformance with the law. Phased implementation would also have an immediately positive impact in reducing the number of individuals arriving at the southwest border who are placed into backlogged immigration court dockets, thus allowing the Departments to more quickly adjudicate some cases.
Given limited agency resources, the Departments anticipate first implementing this new process for certain non-detained family units. The Departments believe this is necessary as USCIS capacity is currently insufficient to handle all family unit referrals under this new proposed process. The Departments also anticipate limiting referrals under the initial implementation of this proposed rule to families apprehended in certain southwest border sectors or stations, as well as based on the family units final intended destination e.g., if the family unit is within a predetermined distance from the potential interview location.
As the USCIS Asylum Division gains resources and builds capacity, the Departments anticipate that additional family unit cases and then single adult cases could be considered for processing pursuant to this phased implementation. Under this approach, it is likely that single adult cases would not be handled under the new process 62 DHS lists a notice of proposed rulemaking for new fees on the Spring 2021 Unified Regulatory Agenda with a proposed publication date of November 2021. Office of Management and Budget, Spring 2021 Unified Regulatory Agenda June 11, 2021, https www.reginfo.gov/public/do/eAgenda ViewRule?pubId=202104&RIN=1615-AC68.

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until a later phase of implementation.
The Departments are seeking comments on what might be the appropriate factors for DHS to consider when determining which individuals to place into the new process during this period prior to full implementation.
Statutory and Regulatory Requirements H. Executive Order 12866 Regulatory Planning and Review and Executive Order 13563 Improving Regulation and Regulatory Review Executive Orders 12866 and 13563
direct agencies to assess the costs and benefits of available regulatory alternatives. If a regulation is necessary, these Executive orders direct that, to the extent permitted by law, agencies ensure that the benefits of a regulation justify its costs and select the regulatory approach that maximizes net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It explicitly draws attention to equity, human dignity, fairness, and distributive impacts, values that are difficult or impossible to quantify. All of these considerations are relevant here. This proposed rule has been designated as a significant regulatory action, and it is economically significant since it meets the $100 million threshold under section 3f1 of Executive Order 12866.
Accordingly, the Office of Management and Budget OMB has reviewed this regulation.
1. Summary This proposed rule would change and streamline the overall adjudicatory process for asylum applications arising out of the expedited removal process.
By reducing undue delays in the system, and by providing a variety of procedural safeguards, the rule protects equity, human dignity, and fairness.
A central feature of the regulation changes the respective roles of an IJ and an asylum officer during proceedings for consideration of asylum applications after a positive credible fear determination. Notably, IJs will retain their existing authority to review de novo the negative determinations made by asylum officers in a credible fear proceeding. In making credible fear determinations, asylum officers will return to evaluating whether there is a significant possibility that the noncitizen could establish eligibility for asylum, withholding of removal, or CAT

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