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Federal Register / Vol. 86, No. 246 / Tuesday, December 28, 2021 / Rules and Regulations
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there are reasonable grounds for regarding an alien as a danger to the security of the United States or reasonable grounds to believe that an alien is a danger to the security of the United States based on emergency public health concerns generated by a communicable disease, making the noncitizen ineligible to be granted asylum in the United States under section 208 of the Immigration and Nationality Act INA or the Act, 8
U.S.C. 1158, or the protection of withholding of removal under the Act or subsequent regulations because of the threat of torture. Security Bars and Processing, 85 FR 84160 Dec. 23, 2020.
The rule was scheduled to take effect on January 22, 2021.
On January 20, 2021, the White House Chief of Staff issued a memorandum asking agencies to consider delaying, consistent with applicable law, the effective dates of any rules that had been published and not yet gone into effect, for the purpose of allowing the Presidents appointees and designees to review questions of fact, law, and policy raised by those regulations. See Memorandum for the Heads of Executive Departments and Agencies from Ronald A. Klain, Assistant to the President and Chief of Staff, Re:
Regulatory Freeze Pending Review Jan.
20, 2021, available at 86 FR 7424 Jan.
28, 2021. As of January 21, 2021, the Departments delayed the effective date of the Security Bars rule to March 22, 2021, and then further delayed the effective date of the Security Bars rule to December 31, 2021, consistent with that memorandum and a preliminary injunction in place with respect to a related rule, as discussed below. See Security Bars and Processing; Delay of Effective Date, 86 FR 6847 Jan. 25, 2021; Security Bars and Processing;
Delay of Effective Date, 86 FR 15069
Mar. 22, 2021.
B. Reason for Delay As stated in the Security Bars and Processing; Delay of Effective Date interim final rule March Security Bars Delay IFR published on March 22, 2021, the Departments had good cause to delay the Security Bars rules effective date further without advance notice and comment because implementation of the Security Bars rule was infeasible due to a preliminary injunction against a related rule. See 86
FR at 15070. Specifically, the Security Bars rule relies on revisions to the Departments regulations previously made on December 11, 2020, by a separate joint rule, Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear
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Review Global Asylum final rule.1
The Global Asylum final rule was scheduled to become effective before the Security Bars rule. However, on January 8, 2021, 14 days prior to the effective date of the Security Bars rule, in the case of Pangea Legal Services v.
Department of Homeland Security Pangea II, a district court preliminarily enjoined the Departments from implementing, enforcing, or applying the Global Asylum final rule . . . or any related policies or procedures. 2 The preliminary injunction remains in place. Thus, implementation of the Security Bars rule continues to be infeasible.
Specifically, the Security Bars rule relies upon the regulatory framework that was established in the Global Asylum final rule in applying bars to asylum eligibility and withholding of removal during credible fear screenings.3 On July 9, 2020, the Departments published a Notice of Proposed Rulemaking for the Security Bars rule Security Bars NPRM, which proposed regulatory text instructing adjudicators to apply the security bars to asylum eligibility and withholding of removal during credible fear screenings.4 This proposal would have modified the then-existing regulatory framework instructing that evidence that the individual is, or may be, subject to a bar to asylum eligibility or withholding of removal, including the danger to the security of the United States bars underlying the Security Bars rule, does not have an impact on a credible fear determination.5 The Security Bars NPRM justified this modification as necessary to allow DHS
to quickly remove individuals covered by the security bars to asylum eligibility and withholding of removal, rather than sending potentially barred individuals to full removal proceedings pursuant to section 240 of the INA, 8 U.S.C. 1229a 1 See
85 FR 80274 Dec. 11, 2020.
Legal Servs. v. U.S. Dept of Homeland Sec., 512 F. Supp. 3d 966, 977 N.D. Cal. 2021. By issuing this rule to further extend and delay the effective date of the Security Bars rule, the Departments are not indicating a position on the outcome thus far in Pangea II.
3 See, e.g., 85 FR at 84176 As noted, the Security Bars final rule is not, as the NPRM
proposed, modifying the regulatory framework to apply the danger to the security of the United States bars at the credible fear stage because, in the interim between the NPRM and the final rule, the Global Asylum final rule did so for all of the bars to eligibility for asylum and withholding of removal.; id. at 84189 describing changes made in the Security Bars rule to certain regulatory provisions not addressed in the proposed rule as necessitated by the intervening promulgation of the Global Asylum final Rule.
4 Security Bars and Processing, 85 FR 41201, 4121618 July 9, 2020.
5 See id. at 41207.
2 Pangea
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section 240 removal proceedings, for consideration of further relief or protection from removal before an immigration judge, which can take months or even years.6 The Security Bars NPRM further explained that applying the security bars during credible fear screenings was necessary to reduce health and safety dangers to both the public at large and DHS
officials.7
On December 11, 2020, while the Departments were reviewing the comments submitted in response to the Security Bars NPRM, the Global Asylum final rule was published.8 The Global Asylum final rule changed the general practice described above to apply all bars to asylum eligibility and withholding of removal during credible fear screenings.9 Most relevant, the Global Asylum final rule changed the then-existing regulatory framework described above, in which evidence of a bar to asylum eligibility or withholding of removal does not have any impact on a credible fear determination even though the bars would be part of the ultimate adjudication of asylum eligibility or withholding of removal before the Executive Office of Immigration Review, to a framework that instead required asylum officers to apply all of the bars to asylum eligibility or withholding of removal during credible fear screenings.10
On December 23, 2020, the Security Bars rule was published. In this final rule, the Departments revised the text from the Security Bars NPRM to explicitly rely on the intervening changes made by the Global Asylum final rule.11 As a result, the regulatory text of significant portions of the Security Bars rule relies upon and repeats broader regulatory text established by the Global Asylum final rule, such as applying bars to asylum eligibility and withholding of removal during credible fear screenings.12 The Security Bars rule assumed that the Global Asylum final rule would be in effect, and, therefore, the Security Bars rule did not make additional changes to the credible fear framework.13
6 Id.

at 4121012.
at 41210.
8 85 FR 80274 Dec. 11, 2020.
9 Id. at 80391.
10 Id.
11 85 FR at 8417477.
12 See, e.g., id. at 8419498 revising 8 CFR
208.30, 235.6, 1208.30, and 1235.6, among other provisions; accord 85 FR at 8039080401 same.
13 See 85 FR at 84175 The Departments note that the final rule is not, as the NPRM proposed, modifying the regulatory framework to apply the danger to the security of the United States bars at 7 Id.

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