9111-97-P DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts

Billing Code: 4410-30-P; 9111-97-P

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208, 235

[USCIS Docket No. USCIS-2024-0006]

RIN 1615-AC92

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1208

[A.G. Order No. 5943-2024]

RIN 1125-AB32

Securing the Border

AGENCY: U.S. Citizenship and Immigration Services (“USCIS”), Department of Homeland

Security (“DHS”); Executive Office for Immigration Review (“EOIR”), Department of Justice

(“DOJ”).

ACTION: Interim final rule (“IFR”) with request for comments.

SUMMARY: On June 3, 2024, the President signed a Proclamation under sections 212(f) and

215(a) of the Immigration and Nationality Act (“INA”), finding that the entry into the United

States of certain noncitizens during emergency border circumstances would be detrimental to the

interests of the United States, and suspending and limiting the entry of those noncitizens. The

Proclamation directed DHS and DOJ to promptly consider issuing regulations addressing the

circumstances at the southern border, including any warranted limitations and conditions on

asylum eligibility. The Departments are now issuing this IFR.

DATES: Effective date: This IFR is effective at 12:01 a.m. eastern daylight time on June 5,

2024.

This document is scheduled to be published in the

Federal Register on 06/07/2024 and available online at

https://federalregister.gov/d/2024-12435, and on https://govinfo.gov

Submission of public comments: Comments must be submitted on or before [INSERT DATE 30

DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].

The electronic Federal Docket Management System will accept comments prior to midnight

eastern time at the end of that day.

ADDRESSES: You may submit comments on this IFR, identified by USCIS Docket No.

USCIS-2024-0006, through the Federal eRulemaking Portal: https://www.regulations.gov.

Follow the website instructions for submitting comments.

Comments submitted in a manner other than the one listed above, including emails or

letters sent to the Departments’ officials, will not be considered comments on the IFR and may

not receive a response from the Departments. Please note that the Departments cannot accept

any comments that are hand-delivered or couriered. In addition, the Departments cannot accept

comments contained on any form of digital media storage devices, such as CDs/DVDs and USB

drives. The Departments are not accepting mailed comments at this time. If you cannot submit

your comment by using https://www.regulations.gov, please contact the Regulatory Coordination

Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department

of Homeland Security, by telephone at (240) 721–3000 for alternate instructions.

FOR FURTHER INFORMATION CONTACT:

For DHS: Daniel Delgado, Acting Deputy Assistant Secretary for Immigration Policy, Office of

Strategy, Policy, and Plans, U.S. Department of Homeland Security; telephone (202) 447–3459

(not a toll-free call).

For the Executive Office for Immigration Review: Lauren Alder Reid, Assistant Director, Office

of Policy, EOIR, Department of Justice, 5107 Leesburg Pike, Falls Church, VA 22041; telephone

(703) 305–0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

A. Background and Purpose

B. Legal Authority

C. Summary of Provisions of the IFR

III. Discussion of the IFR

A. Current Framework

1. Asylum, Statutory Withholding of Removal, and CAT Protection

2. Expedited Removal and Screenings in the Credible Fear Process

3. Lawful Pathways Condition on Asylum Eligibility

B. Justification

1. Global Migration at Record Levels

2. Need for These Measures

3. Description of the Rule and Explanation of Regulatory Changes

C. Section-by-Section Description of Amendments

1. 8 CFR 208.13 and 1208.13

2. 8 CFR 208.35

3. 8 CFR 1208.35

4. 8 CFR 235.15

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

1. Foreign Affairs

2. Good Cause

B. Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563

(Improving Regulation and Regulatory Review), and Executive Order 14094

(Modernizing Regulatory Review)

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act of 1995

E. Congressional Review Act

F. Executive Order 13132 (Federalism)

G. Executive Order 12988 (Civil Justice Reform)

H. Family Assessment

I. Executive Order 13175 (Consultation and Coordination with Indian Tribal

Governments)

J. National Environmental Policy Act

K. Paperwork Reduction Act

List of Abbreviations

AO Asylum Officer

APA Administrative Procedure Act

BIA Board of Immigration Appeals (DOJ, EOIR)

CAT Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment

CBP U.S. Customs and Border Protection

CBP One app CBP One mobile application

CDC Centers for Disease Control and Prevention

CHNV Cuba, Haiti, Nicaragua, and Venezuela

DHS Department of Homeland Security

DOD Department of Defense

DOJ Department of Justice

EOIR Executive Office for Immigration Review

FARRA Foreign Affairs Reform and Restructuring Act of 1998

FRP Family Reunification Parole

FY Fiscal Year

HSA Homeland Security Act of 2002

ICE U.S. Immigration and Customs Enforcement

IFR Interim Final Rule

IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act of 1996

IJ Immigration Judge

INA or the Act Immigration and Nationality Act

INS Immigration and Naturalization Service

MPP Migrant Protection Protocols

NGO Non-Governmental Organization

NEPA National Environmental Policy Act

NTA Notice to Appear

OHSS Office of Homeland Security Statistics

OIS Office of Immigration Statistics

OMB Office of Management and Budget

POE Port of Entry

RFA Regulatory Flexibility Act

SWB Southwest Land Border

TCO Transnational Criminal Organization

UC Unaccompanied Child, having the same meaning as Unaccompanied Alien Child as

defined at 6 U.S.C. 279(g)(2)

UIP U.S. Customs and Border Protection Unified Immigration Portal

UMRA Unfunded Mandates Reform Act of 1995

UNHCR United Nations High Commissioner for Refugees

USBP U.S. Border Patrol

USCIS U.S. Citizenship and Immigration Services

I. Public Participation

The Departments invite all interested parties to participate in this rulemaking by

submitting written data, views, comments, and arguments on all aspects of this IFR by the

deadline stated above. The Departments also invite comments that relate to the economic,

environmental, or federalism effects that might result from this IFR. Comments that will provide

the most assistance to the Departments in implementing these changes will reference a specific

portion of the IFR, explain the reason for any recommended change, and include data,

information, or authority that supports such recommended change. Comments must be

submitted in English, or an English translation must be provided. Comments submitted in a

manner other than pursuant to the instructions, including emails or letters sent to the

Departments’ officials, will not be considered comments on the IFR and may not receive a

response from the Departments.

Instructions: If you submit a comment, you must include the USCIS Docket No. USCIS-

2024-0006 for this rulemaking. All submissions may be posted, without change, to the Federal

eRulemaking Portal at https://www.regulations.gov, and will include any personal information

you provide. Therefore, submitting this information makes it public. You may wish to consider

limiting the amount of personal information that you provide in any voluntary public comment

submission you make to the Departments. The Departments may withhold information provided

in comments from public viewing that they determine may impact the privacy of an individual or

is offensive. For additional information, please read the Privacy and Security Notice available at

https://www.regulations.gov.

Docket: For access to the docket and to read background documents or comments

received, go to https://www.regulations.gov, referencing USCIS Docket No. USCIS-2024-0006.

You may also sign up for email alerts on the online docket to be notified when comments are

posted, or a final rule is published.

II. Executive Summary

A. Background and Purpose

On June 3, 2024, the President signed a Proclamation under sections 212(f) and 215(a) of

the INA, 8 U.S.C. 1182(f) and 1185(a), finding that because the border security and immigration

systems of the United States are unduly strained at this time, the entry into the United States of

certain categories of noncitizens

is detrimental to the interests of the United States, and

suspending and limiting the entry of such noncitizens. The Proclamation explicitly excepts from

its terms certain persons who are not subject to the suspension and limitation. This rule is

necessary to respond to the emergency border circumstances discussed in the Proclamation.

The Departments use the term “emergency border circumstances” in this preamble to

generally refer to situations in which high levels of encounters at the southern border exceed

DHS’s capacity to deliver timely consequences to most individuals who cross irregularly into the

United States and cannot establish a legal basis to remain in the United States. As the preamble

elsewhere explains, the periods during which the Proclamation is intended to be in effect, when

encounters exceed certain thresholds, identify such situations. Hence, the Departments in this

preamble use the term “emergency border circumstances” to refer more specifically to the period

of time after the date that the Proclamation’s suspension and limitation on entry would

commence (as described in section 1 of the Proclamation) until the discontinuation date

referenced in section 2(a) of the Proclamation or the date the President revokes the Proclamation

(whichever comes first), as well as any subsequent period during which the Proclamation’s

suspension and limitation on entry would apply as described in section 2(b) of the Proclamation.

As the Proclamation and this preamble explain, these circumstances exist despite the

Departments’ efforts to address substantial levels of migration, and such circumstances are a

For purposes of this preamble, the Departments use the term “noncitizen” to be synonymous with the term “alien”

as it is used in the INA. See INA 101(a)(3), 8 U.S.C. 1101(a)(3); Barton v. Barr, 590 U.S. 222, 226 n.2 (2020).

The Departments have sought to avoid describing “emergency border circumstances” as the time period during

which the Proclamation is in effect, because the Departments intend for certain provisions of this rule to remain in

effect in the event a court enjoins or otherwise renders inoperable the Proclamation or this rule’s limitation on

asylum eligibility.

direct result of Congress’s failure to update outdated immigration laws and provide needed

funding and resources for the efficient operation of the border security and immigration systems.

The Proclamation explains that since 2021, as a result of political and economic

conditions globally, there have been substantial levels of migration throughout the Western

Hemisphere,

including record levels at the southwest land border (“SWB”).

In response to

According to OHSS analysis of the United Nations High Commissioner for Refugees (“UNHCR”) data from 1969

to 2022, there were more than 8.5 million displaced persons in the Western Hemisphere in 2022, including

approximately 6.6 million Venezuelans, 300,000 Nicaraguans, 260,000 Hondurans, 250,000 Cubans, 250,000

Colombians, 210,000 Haitians, and 210,000 Salvadorans, among others. By comparison, prior to 2018 there were

never more than 1 million displaced persons in the hemisphere, and prior to 2007 there were never more than

300,000. Nearly 1 in every 100 people in the Western Hemisphere was displaced in 2022, compared to less than 1

in 1,000 displaced in the region each year prior to 2018. See UNHCR, Refugee Data Finder, unhcr.org/refugee-

statistics/download/?url=PhV1Xc (last visited May 27, 2024); see also UNHCR, Global Trends: Forced

Displacement in 2022, at 2, 8, 9, 12 (June 14, 2023), https://www.unhcr.org/global-trends-report-2022 (showing

rapid global increases in forcibly displaced persons and other persons in need of international protection in 2021 and

2022, and projecting significant future increases); UNHCR, Venezuela Situation,

https://www.unhcr.org/emergencies/venezuela-situation (last updated Aug. 2023).

United States Government sources refer to the U.S. border with Mexico by various terms, including “SWB” and

“the southern border.” In some instances, these differences can be substantive, referring only to portions of the

border, while in others they simply reflect different word choices. As defined in section 4(d) of the Proclamation,

the term “southern border” includes both the southwest land border (“SWB”) and the southern coastal borders. As

defined in section 4(c) of the Proclamation, the term “southwest land border” means the entirety of the United States

land border with Mexico. And as defined in section 4(b) of the Proclamation, the term “southern coastal borders”

means all maritime borders in Texas, Louisiana, Mississippi, Alabama, and Florida; all maritime borders

proximate to the SWB, the Gulf of Mexico, and the southern Pacific coast in California; and all maritime borders

of the United States Virgin Islands and Puerto Rico. The Departments believe that the factual circumstances

described herein support applying this IFR to both the SWB and the southern coastal borders, although they

recognize that occasionally different variations of this terminology may be used. The Departments further note there

are sound reasons for the Proclamation and rule to include maritime borders of the United States Virgin Islands and

Puerto Rico; this aspect of the Proclamation and rule help avoid any incentive for maritime migration to such

locations. The dangers of such migration, and the operational challenges associated with responding to such

maritime migration, are well documented. See Securing America’s Maritime Border: Challenges and Solutions for

U.S. National Security: Hearing Before the Subcomm. on Transp. & Mar. Sec. of the H. Comm. on Homeland Sec.,

108th Cong. 10–11 (prepared statement of Rear Admiral Jo-Ann F. Burdian, Assistant Commandant for Response

Policy, U.S. Coast Guard) (describing an increasingly challenging operational environment and noting that most

“Cuban and Haitian migrants use transit routes into Florida, either directly or via the Bahamas. Alternatively,

Dominican and some Haitian migrants use shorter transit routes across the Mona Passage to Puerto Rico and the

U.S. Virgin Islands. Common conveyances used in this region range from fishing vessels, coastal freighters, sail

freighters, go-fast type vessels, and ‘rusticas.’”); PBS, More Than 100 Migrants Stranded Near Puerto Rico Await

Help During Human Smuggling Operation (Oct. 18, 2022), https://www.pbs.org/newshour/world/more-than-100-

migrants-stranded-near-puerto-rico-await-help-during-human-smuggling-operation (“Mona Island is located in the

treacherous waters between Dominican Republic and Puerto Rico and has long been a dropping off point for human

smugglers promising to ferry Haitian and Dominican migrants to the U.S. territory aboard rickety boats. Dozens of

them have died in recent months in an attempt to flee their countries amid a spike in poverty and violence.”); United

States Coast Guard, Coast Guard Repatriates 38 Migrants to Dominican Republic Following 2 Interdictions Near

Puerto Rico (Apr. 25, 2024), https://www.news.uscg.mil/Press-Releases/Article/3755880/coast-guard-repatriates-

38-migrants-to-dominican-republic-following-2-interdict/; United States Coast Guard, Coast Guard Repatriates 101

Migrants to Dominican Republic Following 3 Interdictions Near Puerto Rico (Apr. 9, 2024),

https://www.news.uscg.mil/Press-Releases/Article/3734747/coast-guard-repatriates-101-migrants-to-dominican-

republic-following-3-interdic/; United States Coast Guard, Coast Guard, Federal, Local Interagency Responders

Search for Possible Survivors of Capsized Migrant Vessel in Camuy, Puerto Rico (Feb. 1, 2024),

https://www.news.uscg.mil/Press-Releases/Article/3663106/coast-guard-federal-local-interagency-responders-

record levels of encounters at the SWB,

the United States Government has taken a series of

significant steps to strengthen consequences for unlawful or unauthorized entry at the border,

while at the same time overseeing the largest expansion of lawful, safe, and orderly pathways

and processes for individuals to come to the United States for protection in decades.

These

steps include:

search-for-possible-survivors/; United States Coast Guard, Coast Guard Repatriates 28 Migrants to Dominican

Republic, Following Interdiction of Unlawful Migration Voyage in the Mona Passage (Jan. 31, 2024),

https://www.news.uscg.mil/Press-Releases/Article/3661517/coast-guard-repatriates-28-migrants-to-dominican-

republic-following-interdictio/. There were 35,100 encounters of Dominicans between POEs at the SWB in Fiscal

Year (“FY”) 2023 and 14,100 in the first six months of FY 2024 (on pace for 28,200), up from an average of 400

such encounters per year in FY 2014 through FY 2019—roughly a 90-fold increase. Office of Homeland Security

Statistics (“OHSS”) analysis of March 2024 OHSS Persist Dataset.

At the SWB, U.S. Customs and Border Protection (“CBP”) completed approximately 1.7 million encounters at and

between POEs in FY 2021, 2.4 million in FY 2022, and 2.5 million in FY 2023, with each year exceeding the

previous record high of 1.68 million in FY 2000. Compare OHSS, 2022 Yearbook of Immigration Statistics 89 tbl.

33 (Nov. 2023), https://www.dhs.gov/sites/default/files/2023-

11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf (total apprehensions and Title 42 expulsions

from 1925 to 2022), and id. at 94–96 tbl. 35 (apprehensions from FY 2013 to FY 2022), with OHSS, 2012 Yearbook

of Immigration Statistics 96 tbl. 35 (July 2013),

https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2012.pdf (apprehensions

from FY 2003 to FY 2012), and OHSS, 2002 Yearbook of Immigration Statistics 184 tbl. 40 (Oct. 2003),

https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2002.pdf (apprehensions

from FY 1996 to FY 2002). In December 2023, CBP also completed a single-month record of approximately

302,000 encounters at and between POEs, almost one and a half times as many as the highest monthly number

recorded prior to 2021 (approximately 209,000 in March 2000) based on records available in the OHSS Persist

Dataset from FY 2000 to the present. Although some of the increase in encounters is explained by higher-than-

normal numbers of repeat encounters of the same individuals during the period in which noncitizens were expelled

pursuant to the Centers for Disease Control and Prevention’s (“CDC’s”) Title 42 public health Order, OHSS

analysis of the March 2024 OHSS Persist Dataset indicates that unique encounters were also at record high levels.

See OHSS analysis of March 2024 OHSS Persist Dataset.

DHS data in this IFR are current through March 31, 2024, the most recent month for which DHS has data that have

gone through its full validation process. DHS primarily relies on two separate datasets for most of the data in this

IFR. Most DHS data are pulled from OHSS’s official statistical system of record data, known as the OHSS Persist

Dataset, which is typically released by OHSS on a 90-day delay. Other data in this IFR are pulled from OHSS’s

Enforcement Lifecycle dataset, which combines 23 separate DHS and DOJ datasets to report on the end-to-end

immigration enforcement process. Due to this greater complexity, Lifecycle data generally become available for

reporting 90 to 120 days after the end of each quarter.

CBP also publishes preliminary data pulled from its operational systems more quickly as part of its regular Monthly

Operational Updates. The data in these updates reflect operational realities but change over time as transactional

records in the systems of record are cleaned and validated; they are best viewed as initial estimates rather than as

final historical records. CBP released an operational update on May 15, 2024, that includes the Component’s

official reporting for encounters through the end of April. Based on these data, SWB encounters between POEs fell

slightly by six percent between March and April. OHSS analysis of data obtained from CBP, Southwest Land

Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last accessed May 24,

2024). The preliminary April data are best understood to reflect a continuation of the general pattern described

elsewhere in this IFR. Excluding March through April 2020, which was an unusual case because of the onset of the

COVID-19 pandemic, the average month-over-month change between March and April for 2013 through 2024 is a

2.3 percent increase, with 4 out of those 11 years experiencing decreases in April and 7 years experiencing

increases.

See DHS, Fact Sheet: Department of State and Department of Homeland Security Announce Additional Sweeping

Measures to Humanely Manage Border through Deterrence, Enforcement, and Diplomacy (May 10, 2023),

https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-manage-border.

• Promulgating and implementing the rule titled Circumvention of Lawful Pathways, 88

FR 31314 (May 16, 2023) (“Circumvention of Lawful Pathways rule”);

• Deploying more than 500 additional DHS personnel at a time to the SWB to support

U.S. Customs and Border Protection (“CBP”) operations and refocusing a significant

portion of DHS’s SWB workforce to prioritize migration management above other

border security missions;

• Deploying over 1,000 additional Department of Defense (“DOD”) personnel on top of

the 2,500 steady state presence to the SWB in May 2023 to further enhance border

security;

• Processing record numbers of individuals through expedited removal;

• Implementing a historic expansion of lawful pathways and processes to come to the

United States, including: the Cuba, Haiti, Nicaragua, and Venezuela (“CHNV”) parole

processes, which allow individuals with U.S.-based supporters to seek parole on a

case-by-case basis for urgent humanitarian reasons or significant public benefit; the

Safe Mobility Offices in Colombia, Costa Rica, Ecuador, and Guatemala, which

provide access to expedited refugee processing for eligible individuals; and the

expansion of country-specific family reunification parole processes for individuals in

the region who have U.S. citizen relatives in the United States;

DHS, Fact Sheet: The Biden-Harris Administration Takes New Actions to Increase Border Enforcement and

Accelerate Processing for Work Authorizations, While Continuing to Call on Congress to Act (Sept. 20, 2023),

https://www.dhs.gov/news/2023/09/20/fact-sheet-biden-harris-administration-takes-new-actions-increase-border.

Id.; see also DOD, Austin Approves Homeland Security Request for Troops at Border (May 2, 2023),

https://www.defense.gov/News/News-Stories/Article/Article/3382272/austin-approves-homeland-security-request-

for-troops-at-border/.

In the months between May 12, 2023, and March 31, 2024, CBP processed roughly 316,000 noncitizens

encountered at and between SWB POEs for expedited removal, more than in any prior full fiscal year. OHSS

analysis of data pulled from CBP Unified Immigration Portal (“UIP”) on April 2, 2024.

DHS, Fact Sheet: U.S. Government Announces Sweeping New Actions to Manage Regional Migration (Apr. 27,

2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-

regional-migration.

• Expanding opportunities to enter the United States for seasonal employment;

• Establishing a mechanism for over 1,400 migrants per day to schedule a time and

place to arrive in a safe, orderly, and lawful manner at ports of entry (“POEs”) through

the CBP One mobile application (“CBP One app”);

• Increasing proposed refugee admissions from the Western Hemisphere from 5,000 in

Fiscal Year (“FY”) 2021 to up to 50,000 in FY 2024;

• Completing approximately 89 percent more immigration court cases in FY 2023 as

compared to FY 2019;

and

• Increasing the immigration judge (“IJ”) corps by 66 percent from FY 2019 to FY

2023, including maximizing the congressionally authorized number in FY 2023 for a

total corps of 734.

The Proclamation further states that although these efforts and other complementary measures

are having their intended effect—DHS is processing noncitizens for removal in record numbers

and with record efficiency

—the border security and immigration systems have not been able to

DHS, DHS to Supplement H-2B Cap with Nearly 65,000 Additional Visas for FY 2024, Department of Homeland

Security (Nov. 3, 2023), https://www.dhs.gov/news/2023/11/03/dhs-supplement-h-2b-cap-nearly-65000-additional-

visas-fiscal-year-2024.

DHS, Fact Sheet: U.S. Government Announces Sweeping New Actions to Manage Regional Migration (Apr. 27,

2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-

regional-migration; CBP, CBP One™ Appointments Increased to 1,450 Per Day (June 30, 2023),

https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day.

U.S. State Dep’t, Report to Congress on Proposed Refugee Admissions for Fiscal Year 2024 (Nov. 3, 2023)

https://www.state.gov/report-to-congress-on-proposed-refugee-admissions-for-fiscal-year-2024/.

See EOIR, Adjudication Statistics: New Cases and Total Completions - Historical 1–2 (Oct. 12, 2023),

https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf.

See EOIR, Adjudication Statistics: Immigration Judge (IJ) Hiring 1 (Jan. 2024),

https://www.justice.gov/eoir/media/1344911/dl?inline (showing 734 total IJs on board in FY 2023); Executive

Office for Immigration Review (“EOIR”) Strategic Plan 2024, Current Operating Environment,

https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment (last visited May 27,

2024) (“The agency’s streamlining efforts also enabled EOIR, by the close of FY 2023, to fill all 734 appropriated IJ

positions, thus creating the largest judge corps in the agency’s history.”).

See supra note 9. Since May 12, 2023, the median time to refer noncitizens encountered by CBP at the SWB who

claim a fear for credible fear interviews decreased by 77 percent from its historical average, from 13 days in the FY

2014 to FY 2019 pre-pandemic period to 3 days in the four weeks ending March 31, 2024; for those who receive

negative credible fear determinations, the median time from encounter to removal, over the same time frames,

decreased 85 percent from 73 days to 11 days. Pre-May 12, 2023, data from OHSS Lifecycle Dataset as of

December 31, 2023; post-May 11, 2023, data from OHSS analysis of data downloaded from UIP on April 2, 2024.

keep pace with the number of individuals arriving at the southern border.

Simply put, the

Departments do not have adequate resources and tools to deliver timely decisions and

consequences to individuals who cross unlawfully and cannot establish a legal basis to remain in

the United States, or to provide timely protection to those ultimately found eligible for protection

when individuals are arriving at such elevated, historic volumes.

This became even more clear in the months following the lifting of the Title 42 public

health Order.

As the Departments resumed widespread processing under title 8 authorities, the

DHS removed or returned over 662,000 noncitizens between May 12, 2023, and March 31, 2024, or an average of

over 61,300 per month (excluding crew members detained on board their vessels and other administrative returns);

this represents the highest average monthly count of removals and returns since FY 2010. Post-May 12, 2023,

repatriations from OHSS analysis of data downloaded from UIP on April 2, 2024; see also OHSS, Immigration

Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-

legal-processes-monthly-tables (last updated May 10, 2024) (providing historic data on repatriations); OHSS, 2022

Yearbook of Immigration Statistics 103–04 tbl. 39 (Nov. 2023), https://www.dhs.gov/sites/default/files/2023-

11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf (noncitizen removals, returns, and expulsions for

FY 1892 to FY 2022).

See Letter for Kevin McCarthy, Speaker of the House of Representatives, from Shalanda D. Young, Director,

Office of Management and Budget (“OMB”) (Aug. 10, 2023), https://www.whitehouse.gov/wp-

content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf.

Id.; see also Ariel G. Ruiz-Soto et al., Migration Pol’y Inst., Shifting Realities at the U.S.-Mexico Border:

Immigration Enforcement and Control in a Fast-Evolving Landscape 20 (Jan. 2024),

https://www.migrationpolicy.org/sites/default/files/publications/mpi-contemporary-border-policy-2024_final.pdf

(“Across the border, interviewed agents expressed frustration with low staffing levels and resource allocations

compared to the challenge of managing the border.”). DHS acknowledges that the enacted FY 2024 DHS budget

does appropriate funding sufficient to pay for approximately 2,000 additional Border Patrol agents, bringing the total

level indicated by Congress up to 22,000 agents, compared with 19,855 agents for FY 2023. 170 Cong Rec. H1809-

10 (daily ed. Mar. 22, 2024) (Explanatory Statement Regarding H.R. 2882, Further Consolidated Appropriations

Act, 2024) (“The agreement includes . . . [funding] to hire 22,000 Border Patrol Agents.”); 168 Cong Rec. S8557

(daily ed. Dec. 20, 2022) (Explanatory Statement Regarding H.R. 2617, Consolidated Appropriations Act, 2023)

(“The agreement provides funding for 19,855 Border Patrol agents.”). However, the FY 2024 appropriations do not

fully fund CBP’s existing operational and staffing requirements. Additionally, CBP estimates that it will likely be

unable to implement a hiring surge to meaningfully grow its overall staffing levels towards the staffing levels funded

by the FY 2024 budget before the end of the current fiscal year. The hiring process requires time and resources to

bring additional agents on board. For example, it generally takes more than six months for an applicant to complete

the hiring process and report to the U.S. Border Patrol (“USBP”) Academy to receive necessary training. See DHS,

Statement from Secretary Mayorkas on the President’s Fiscal Year 2025 Budget for the U.S. Department of

Homeland Security (Mar. 11, 2024), https://www.dhs.gov/news/2024/03/11/statement-secretary-mayorkas-

presidents-fiscal-year-2025-budget-us-department (“However, DHS’s border security and immigration enforcement

efforts along the Southwest border desperately require the additional funds requested by the Administration and

included in the Senate’s bipartisan border security legislation, which would provide DHS with approximately $19

billion to fund additional personnel, facilities, repatriation capabilities, and other enforcement resources.”).

See Public Health Determination and Order Regarding Suspending the Right To Introduce Certain Persons From

Countries Where a Quarantinable Communicable Disease Exists, 87 FR 19941, 19941–42 (Apr. 6, 2022) (describing

the CDC’s recent Title 42 public health Orders, which “suspend[ed] the right to introduce certain persons into the

United States from countries or places where the quarantinable communicable disease exists in order to protect the

public health from an increased risk of the introduction of COVID–19”). Although the CDC indicated its intention

to lift the order on May 23, 2022, ongoing litigation prevented the order from being lifted until it ultimately expired

on May 11, 2023. See 88 FR at 31319.

insufficiency of both the available statutorily authorized tools and the resources provided to

implement them came into stark focus. Despite the expanded ability to impose consequences at

the SWB through the Circumvention of Lawful Pathways rule and complementary measures,

which led to the highest numbers of returns and removals in more than a decade,

encounter

levels have remained elevated well above historical levels, with December 2023 logging the

highest monthly total on record.

While encounter levels in calendar year 2024 have decreased

from these record numbers, there is still a substantial and elevated level of migration, and

historically high percentages of migrants are claiming fear and are challenging to remove, as

discussed in more detail in Section III.B.1 of this preamble.

This substantial migration

throughout the hemisphere, combined with inadequate resources and tools to keep pace, limits

DHS’s ability to impose timely consequences through expedited removal, the main consequence

available at the border under title 8 authorities.

In the ten and a half months between May 12, 2023, and March 31, 2024, DHS completed over 662,000 removals

and enforcement returns, more than in any full fiscal year since FY 2011, and the highest monthly average of

enforcement repatriations since FY 2010. Post-May 12, 2023, repatriations from OHSS analysis of data

downloaded from UIP on April 2, 2024; see also OHSS, Immigration Enforcement and Legal Processes Monthly

Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated

May 10, 2024) (providing historic data on repatriations); OHSS, 2022 Yearbook of Immigration Statistics 103–04

tbl. 39 (Nov. 2023), https://www.dhs.gov/sites/default/files/2023-

11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf (noncitizen removals, returns, and expulsions for

FY 1892 to FY 2022).

There were nearly 302,000 CBP encounters at and between POEs along the SWB in December 2023, higher than

any previous month on record. OHSS analysis of March 2024 OHSS Persist Dataset and historic CBP data for

encounters prior to FY 2000; see also OHSS, 2022 Yearbook of Immigration Statistics 89 tbl. 33 (Nov. 2023) (total

apprehensions and Title 42 expulsions from 1925 to 2022), https://www.dhs.gov/sites/default/files/2023-

11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf; id. at 94–96 tbl. 35 (apprehensions from FY

2013 to FY 2022); OHSS, Immigration Enforcement and Legal Processes Monthly Tables,

https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May

10, 2024) (SWB encounters from FY 2014 through December 2023).

After peaking at nearly 302,000 in December 2023, encounters at and between POEs along the SWB fell to

approximately 176,000 in January 2024, 190,000 in February 2024, and 189,000 in March 2024. At an average of

185,000 for the first three months of 2024, monthly encounters levels were almost 4 times higher than the pre-

pandemic (FY 2014 through 2019) average of 48,000 encounters at and between POEs per month and—with the

exceptions of FY 2022 and FY 2023—represented the highest second quarter count of encounters in any year since

FY 2001. March 2024 OHSS Persist Dataset; see also OHSS, 2022 Yearbook of Immigration Statistics 89 tbl. 33

(Nov. 2023), https://www.dhs.gov/sites/default/files/2023-

11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf (total apprehensions and title 42 expulsions from

1925 to 2022); id. at 94–96 tbl. 35 (apprehensions from FY 2013 to FY 2022); OHSS, Immigration Enforcement

and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-

processes-monthly-tables (last updated May 10, 2024) (SWB encounters from FY 2014 through December 2023).

The sustained, high encounter rates the Departments have experienced over the past year

have outstripped the Departments’ abilities—based on available resources—to process

noncitizens through expedited removal in significant numbers. Due to its funding shortfall, DHS

simply lacks sufficient resources, such as sufficient USCIS asylum officers (“AOs”) to conduct

fear screenings and sufficient temporary processing facilities, often called “soft-sides,” which

limits DHS’s ability to conduct credible fear interviews for individuals in CBP custody and to

process and hold individuals in U.S. Immigration and Customs Enforcement (“ICE”) custody

during the expedited removal process.

This mismatch in available resources and encounters

creates stress on the border and immigration systems and forces DHS to rely on processing

pathways outside of expedited removal—limiting the Departments’ ability to deliver timely

consequences to individuals who do not have a legal basis to remain in the United States.

Individuals who are subject to but cannot be processed under expedited removal due to resource

constraints are instead released pending removal proceedings under section 240 of the INA, 8

U.S.C. 1229a (“section 240 removal proceedings”), before an IJ, a process that can take several

years to conclude.

These immigration court proceedings can be less resource intensive for

“Because ICE has very limited detention capacity and appropriated bedspace has remained relatively static, the

agency must carefully prioritize whom it detains. Similar to FY 2022, during FY 2023, Enforcement and Removal

Operations’ limited detention capacity was primarily used to house two populations: noncitizens CBP arrested at the

Southwest Border and noncitizens with criminal histories [Enforcement and Removal Operations] arrested in the

interior.” Fiscal Year 2023 ICE Annual Report 18 (Dec. 29, 2023),

https://www.ice.gov/doclib/eoy/iceAnnualReportFY2023.pdf. In FY 2024, ICE was appropriated

$5,082,218,000.00 “for enforcement, detention and removal operations.” Consolidated Appropriations Act, 2024,

Pub. L. 118–47, 138 Stat. 460, 598 (2024). The joint explanatory statement states that the bill provides

“$5,082,218,000 for Enforcement and Removal Operations (ERO)” and “$355,700,000 for 41,500 beds for the full

fiscal year and inflationary adjustments to support current detention facility operations.” 170 Cong. Rec. H1807,

1812 (daily ed. Mar. 22, 2024).

See CBP, Custody and Transfer Statistics, https://www.cbp.gov/newsroom/stats/custody-and-transfer-statistics

(last updated Apr. 12, 2024) (table showing that, under current constraints, the number of individuals processed for

expedited removal makes up only a fraction of total processing dispositions, including section 240 proceedings).

EOIR decisions completed in December 2023 were, on average, initiated in December 2020, during the significant

operational disruptions caused by the COVID-19 pandemic (with encounters several months earlier than that), but

50 percent of EOIR cases initiated during that time were still pending as of December 2023, so the final mean

processing time (once all such cases are complete) will be longer. OHSS analysis of EOIR data as of February 12,

2024; EOIR Strategic Plan 2024, Current Operating Environment, https://www.justice.gov/eoir/strategic-

plan/strategic-context/current-operating-enviroment (last visited May 26, 2024) (“EOIR [] suffered operational

setbacks during the COVID-19 pandemic years of FY 2020 through FY 2022, including declining case completions

due to health closures and scheduling complications and delays in agency efforts to transition to electronic records

and the efficiencies they represent. While the challenges of the pandemic were overcome by adaptive measures

processing upon initial encounter, because individuals can be released from custody fairly

quickly, but are also far less likely to result in swift decisions and swift consequences, and

generally require more IJ and ICE attorney time to resolve. Compare INA 235(b)(1), 8 U.S.C.

1225(b)(1), with INA 240, 8 U.S.C. 1229a. Notably, in FY 2023, when the immigration courts

had a historic high number of case completions, the number of new cases far outnumbered those

completions and led to a larger backlog—likely extending the length of time it will take

individuals encountered and referred into section 240 removal proceedings to finish their

immigration court process.

Said another way, at the current levels of encounters and with current resources, the

Departments cannot predictably and swiftly deliver consequences to most noncitizens who cross

the border without a lawful basis to remain. This inability to predictably deliver timely decisions

and consequences further compounds incentives for migrants to make the dangerous journey to

the SWB, regardless of any individual noncitizen’s ultimate likelihood of success on an asylum

or protection application.

Smugglers and transnational criminal organizations (“TCOs”) have

taken during those years, the pandemic’s impact on the pending caseload is still being felt.”). While EOIR does not

report statistics on pending median completion times for removal proceedings in general, it does report median

completion times for certain types of cases, such as detained cases and cases involving UCs. See, e.g., EOIR,

Median Unaccompanied Noncitizen Child (UAC) Case Completion and Case Pending Time (Jan. 18, 2024),

https://www.justice.gov/eoir/media/1344951/dl?inline (median completion time of 1,346 days); EOIR, Median

Completion Times for Detained Cases (Jan. 18, 2024), https://www.justice.gov/eoir/media/1344866/dl?inline

(median completion time of 47 days in the first quarter of 2024 for removal, deportation, exclusion, asylum-only,

and withholding-only cases); EOIR, Percentage of DHS-Detained Cases Completed within Six Months (Jan. 18,

2024), https://www.justice.gov/eoir/media/1344886/dl?inline (reporting seven percent of detained cases not

completed within six months).

EOIR completed more than 520,000 cases in FY 2023 (a record number), but also had almost 1.2 million case

receipts, resulting in a net increase of nearly 700,000 cases in its backlog. See EOIR, Adjudication Statistics:

Pending Cases, New Cases, and Total Completions 1 (Oct. 12, 2023),

https://www.justice.gov/d9/pages/attachments/2020/01/31/1_pending_new_receipts_and_total_completions.pdf;

EOIR, Adjudication Statistics: New Cases and Total Completions - Historical (Oct. 12, 2023),

https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf.

OHSS estimates that 1.1 million of the nearly 1.2 million case receipts (95 percent) resulted from SWB encounters.

OHSS analysis of March 2024 OHSS Persist Dataset.

Miriam Jordan, One Big Reason Migrants Are Coming in Droves: They Believe They Can Stay, N.Y. Times (Jan.

31, 2024), https://www.nytimes.com/2024/01/31/us/us-immigration-asylum-border.html.

exploited this mismatch, further fueling migration by actively advertising to migrants that they

are likely to be able to remain in the United States.

The Departments’ ability to refer and process noncitizens through expedited removal thus

continues to be overwhelmed, creating a vicious cycle in which the border security and

immigration systems cannot deliver timely decisions and consequences to all the people who are

encountered at the SWB and lack a lawful basis to remain in the United States. This, in turn,

forces DHS to release individuals into the backlogged immigration court system; for the many

cases in that system initiated just prior to or during the COVID-19 pandemic, the process can

take several years to result in a final decision or consequence,

which then incentivizes more

people to make the dangerous journey north to take their chances at the SWB.

The status quo

of the broken immigration and asylum system has become a driver for unlawful migration

throughout the region and an increasingly lucrative source of income for dangerous TCOs.

Without countermeasures, those TCOs will continue to grow in strength, likely resulting in even

more smuggling operations and undermining democratic governance in the countries where they

operate.

All of these factors, taken together, pose significant threats to the safety and security

of migrants exploited into making the dangerous journey to the SWB and the U.S. communities

through which many such migrants transit.

In the absence of congressional action to appropriately resource DHS and EOIR and to

reform the outdated statutory framework, the Proclamation and the changes made by this rule are

intended to substantially improve the Departments’ ability to deliver timely decisions and

consequences to noncitizens who lack a lawful basis to remain. By suspending and limiting

See Parker Asmann & Steven Dudley, How US Policy Foments Organized Crime on US-Mexico Border, Insight

Crime (June 28, 2023), https://insightcrime.org/investigations/how-us-policy-foments-organized-crime-us-mexico-

border/.

See supra note 25.

See, e.g., Jordan, supra note 27.

See Asmann & Dudley, supra note 28.

See Jordan, supra note 27.

entries until 12:01 a.m. eastern time on the date that is 14 calendar days after the Secretary

makes a factual determination that there has been a 7-consecutive-calendar-day average of less

than 1,500 encounters, as defined by the Proclamation, but excluding noncitizens determined to

be inadmissible at a SWB POE, and by imposing a limitation on asylum eligibility and making

other policy changes, the Proclamation and IFR will realign incentives at the southern border.

The Proclamation and IFR will do this by improving DHS’s ability to place into expedited

removal the majority of noncitizens who are amenable to such processing; to avoid large-scale

releases of such individuals pending section 240 removal proceedings; and to allow for swift

resolution of their cases and, where appropriate, removal.

The Proclamation imposes a suspension and limitation on entry upon certain classes of

noncitizens who are encountered while the suspension and limitation is in effect. The

Proclamation provides that the suspension and limitation on entry applies beginning at 12:01

a.m. eastern daylight time on June 5, 2024. The suspension and limitation on entry will be

discontinued 14 calendar days after the Secretary makes a factual determination that there has

been a 7-consecutive-calendar-day average of less than 1,500 encounters, as defined by the

Proclamation, but excluding noncitizens determined to be inadmissible at a SWB POE.

Unaccompanied children (“UCs”)

from non-contiguous countries are not included in

calculating the number of encounters. If at any time after such a factual determination the

Secretary makes a factual determination that there has been a 7-consecutive-calendar-day

average of 2,500 encounters or more, the suspension and limitation on entry will apply at 12:01

Under the Proclamation, the term “encounter” refers to a noncitizen who (i) is physically apprehended by CBP

immigration officers within 100 miles of the United States SWB during the 14-day period immediately after entry

between POEs; (ii) is physically apprehended by DHS personnel at the southern coastal borders during the 14-day

period immediately after entry between POEs; or (iii) is determined to be inadmissible at a SWB POE. But the

1,500 and 2,500 encounter thresholds in the Proclamation and this rule exclude the third category of encounters—

individuals determined to be inadmissible at a SWB POE. When describing historical data in this preamble, the

Departments have generally sought to distinguish between encounters between POEs (also referred to as “USBP

encounters”) and encounters at and between the POEs (also referred to as “total CBP encounters” or “encounters,”

depending on the context).

In this rulemaking, as in the Proclamation, the term “unaccompanied children” or “UCs” has the same meaning as

the term “unaccompanied alien child[ren]” under 6 U.S.C. 279(g)(2).

a.m. eastern time on the next calendar day (or will continue to apply, if the 14-calendar-day

period has yet to elapse) until 14 days after the Secretary makes another factual determination

that there has been a 7-consecutive-calendar-day average of less than 1,500 encounters or the

President revokes the Proclamation, at which time its application will be discontinued once

again.

The Proclamation does not apply to the following persons:

(i) any noncitizen national of the United States;

(ii) any lawful permanent resident of the United States;

(iii) any unaccompanied child as defined in section 279(g)(2) of title 6, United States

Code;

(iv) any noncitizen who is determined to be a victim of a severe form of trafficking in

persons, as defined in section 7102(16) of title 22, United States Code;

(v) any noncitizen who has a valid visa or other lawful permission to seek entry or

admission into the United States, or presents at a port of entry pursuant to a pre-

scheduled time and place, including:

(A) members of the United States Armed Forces and associated personnel, United

States Government employees or contractors on orders abroad, or their

accompanying family members who are on their orders or are members of their

household;

(B) noncitizens who hold a valid visa or who have all necessary documents required

for admission consistent with the requirements of section 1182(a)(7) of title 8,

United States Code, upon arrival at a port of entry;

217 of the INA, 8 U.S.C. 1187; and

(D) noncitizens who arrive in the United States at a southwest land border port of

entry pursuant to a process the Secretary of Homeland Security determines is

appropriate to allow for the safe and orderly entry of noncitizens into the United

States;

(vi) any noncitizen who is permitted to enter by the Secretary of Homeland Security,

acting through a U.S. Customs and Border Protection immigration officer, based on

the totality of the circumstances, including consideration of significant law

enforcement, officer and public safety, urgent humanitarian, and public health

interests at the time of the entry or encounter that warranted permitting the noncitizen

to enter; and

(vii) any noncitizen who is permitted to enter by the Secretary of Homeland Security,

acting through a U.S. Customs and Border Protection immigration officer, due to

operational considerations at the time of the entry or encounter that warranted

permitting the noncitizen to enter.

The President authorized the Secretary of Homeland Security and the Attorney General to

issue any instructions, orders, or regulations as may be necessary to implement the Proclamation,

including the determination of the exceptions in section 3(b), and directed them to promptly

consider issuing any instructions, orders, or regulations as may be necessary to address the

circumstances at the southern border, including any additional limitations and conditions on

asylum eligibility that they determine are warranted, subject to any exceptions that they

determine are warranted.

Consistent with the President’s direction, the Departments have determined that this IFR

is necessary to address the situation at the southern border. This IFR aligns the Departments’

border operations and applicable authorities with the Proclamation’s policy and objectives.

Specifically, this IFR establishes a limitation on asylum eligibility that applies to certain

individuals who enter during emergency border circumstances and revises certain procedures

applicable to the expedited removal process to more swiftly apply consequences for irregular

migration

and remove noncitizens who do not have a legal basis to remain in the United States.

Although the Departments are adopting these measures to respond to the emergency situation at

the southern border, they are not a substitute for congressional action—which remains the only

long-term solution to the challenges the Departments have confronted on the border for more

than a decade.

B. Legal Authority

The Secretary and the Attorney General jointly issue this rule pursuant to their shared and

respective authorities concerning consideration of claims for asylum, statutory withholding of

removal, and protection under regulations implemented pursuant to U.S. obligations under

Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment (“CAT”).

The Homeland Security Act of 2002 (“HSA”), Public Law 107–296,

116 Stat. 2135, as amended, created DHS and transferred to the Secretary of Homeland Security

many functions related to the administration and enforcement of Federal immigration law while

maintaining some functions and authorities with the Attorney General, including some shared

concurrently with the Secretary.

The INA, as amended by the HSA, charges the Secretary “with the administration and

enforcement of [the INA] and all other laws relating to the immigration and naturalization of

aliens,” except insofar as those laws assign functions to other agencies. INA 103(a)(1), 8 U.S.C.

1103(a)(1). The INA also grants the Secretary the authority to establish regulations and take

other actions “necessary for carrying out” the Secretary’s authority under the immigration laws,

INA 103(a)(3), 8 U.S.C. 1103(a)(3); see also 6 U.S.C. 202.

In this preamble, “irregular migration” refers to the movement of people into another country without

authorization.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10,

1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, 114; see also 8 U.S.C. 1231 note (United States Policy

With Respect to Involuntary Return of Persons in Danger of Subjection to Torture); 8 CFR 208.16(c)–208.18,

1208.16(c)–1208.18.

The HSA provides the Attorney General with “such authorities and functions under [the

INA] and all other laws relating to the immigration and naturalization of aliens as were

[previously] exercised by [EOIR], or by the Attorney General with respect to [EOIR].” INA

103(g)(1), 8 U.S.C. 1103(g)(1); see also 6 U.S.C. 521. In addition, under the HSA, the Attorney

General retains authority to “establish such regulations, . . . issue such instructions, review such

administrative determinations in immigration proceedings, delegate such authority, and perform

such other acts as the Attorney General determines to be necessary for carrying out” the Attorney

General’s authorities under the INA. INA 103(g)(2), 8 U.S.C. 1103(g)(2).

Under the HSA, the Attorney General retains authority over the conduct of removal

proceedings under section 240 of the INA, 8 U.S.C. 1229a (“section 240 removal proceedings”).

These adjudications are conducted by IJs within DOJ’s EOIR. See 6 U.S.C. 521; INA 103(g)(1),

8 U.S.C. 1103(g)(1). With limited exceptions, IJs adjudicate asylum, statutory withholding of

removal, and CAT protection applications filed by noncitizens during the pendency of section

240 removal proceedings, including asylum applications referred by USCIS to the immigration

court. INA 101(b)(4), 8 U.S.C. 1101(b)(4); INA 240(a)(1), 8 U.S.C. 1229a(a)(1); INA

241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 1208.2(b), 1240.1(a); see also Dhakal v. Sessions, 895

F.3d 532, 536–37 (7th Cir. 2018) (describing affirmative and defensive asylum processes). The

Board of Immigration Appeals (“BIA”), also within DOJ’s EOIR, in turn hears appeals from IJ

decisions. See 8 CFR 1003.1(a)(1), (b)(3); see also Garland v. Ming Dai, 593 U.S. 357, 366–67

(2021) (describing appeals from IJs to the BIA). And the INA provides that the “determination

and ruling by the Attorney General with respect to all questions of law shall be controlling.”

INA 103(a)(1), 8 U.S.C. 1103(a)(1).

In addition to the separate authorities discussed above, the Attorney General and the

Secretary share some authorities.

Section 208 of the INA, 8 U.S.C. 1158, authorizes the

The HSA further provides, “Nothing in this Act, any amendment made by this Act, or in section 103 of the [INA],

as amended . . . , shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders,

“Secretary of Homeland Security or the Attorney General” to “grant asylum” to a noncitizen

“who has applied for asylum in accordance with the requirements and procedures established by”

the Secretary or the Attorney General under section 208 if the Secretary or the Attorney General

determines that the noncitizen is a “refugee” within the meaning of section 101(a)(42)(A) of the

INA, 8 U.S.C. 1101(a)(42)(A). INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). Section 208 thereby

authorizes the Secretary and the Attorney General to “establish[]” “requirements and

procedures” to govern asylum applications. Id. The statute further authorizes them to

“establish,” “by regulation,” “additional limitations and conditions, consistent with” section 208,

under which a noncitizen “shall be ineligible for asylum.” INA 208(b)(2)(C), 8 U.S.C.

1158(b)(2)(C); see also INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (authorizing the Secretary

and the Attorney General to “provide by regulation for any other conditions or limitations on the

consideration of an application for asylum not inconsistent with [the INA]”).

The INA also

provides the Secretary and Attorney General authority to publish regulatory amendments

governing their respective roles regarding apprehension, inspection and admission, detention and

removal, withholding of removal, deferral of removal, and release of noncitizens encountered in

the interior of the United States or at or between POEs. See INA 235, 236, 241, 8 U.S.C. 1225,

1226, 1231.

The HSA granted DHS the authority to adjudicate asylum applications and to conduct

credible fear interviews, make credible fear determinations in the context of expedited removal,

and establish procedures for further consideration of asylum applications after an individual is

found to have a credible fear. INA 103(a)(3), 8 U.S.C. 1103(a)(3); INA 235(b)(1)(B), 8 U.S.C.

1225(b)(1)(B); see also 6 U.S.C. 271(b) (providing for the transfer of adjudication of asylum and

refugee applications from the Commissioner of Immigration and Naturalization to the Director of

decisions, judgments, or any other actions of the Secretary of Homeland Security or the Attorney General.” Pub. L.

107–296, 116 Stat. 2135, 2274 (codified at 6 U.S.C. 522).

Under the HSA, the references to the “Attorney General” in the INA also encompass the Secretary with respect to

statutory authorities vested in the Secretary by the HSA or subsequent legislation, including in relation to

immigration proceedings before DHS. 6 U.S.C. 251, 271(b)(3), (5), 557.

the Bureau of Citizenship and Immigration Services, now USCIS). Within DHS, the Secretary

has delegated some of those authorities to the Director of USCIS, and AOs conduct credible fear

interviews, make credible fear determinations, and determine whether a noncitizen’s asylum

application should be granted. See DHS, No. 0150.1, Delegation to the Bureau of Citizenship

and Immigration Services (June 5, 2003); 8 CFR 208.2(a), 208.9, 208.30.

The United States is a party to the 1967 Protocol Relating to the Status of Refugees, Jan.

31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (“Refugee Protocol”), which incorporates Articles 2

through 34 of the 1951 Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T.

6259, 189 U.N.T.S. 150 (“Refugee Convention”). Article 33 of the Refugee Convention

generally prohibits parties to the Convention from expelling or returning (“refouler”) “a refugee

in any manner whatsoever to the frontiers of territories where his life or freedom would be

threatened on account of his race, religion, nationality, membership of a particular social group

or political opinion.” Refugee Convention, supra, 19 U.S.T. at 6276, 189 U.N.T.S. at 176.

Congress implemented these obligations through the Refugee Act of 1980, Public Law

96–212, 94 Stat. 102 (“Refugee Act”), creating the precursor to what is now known as statutory

withholding of removal. The Supreme Court has long recognized that the United States

implements its non-refoulement obligations under Article 33 of the Refugee Convention (via the

Refugee Protocol) through the statutory withholding of removal provision in section 241(b)(3) of

the INA, 8 U.S.C. 1231(b)(3) (“statutory withholding of removal”), which provides that a

noncitizen may not be removed to a country where their life or freedom would be threatened on

account of one of the protected grounds listed in Article 33 of the Refugee Convention.

See

INA 241(b)(3), 8 U.S.C. 1231(b)(3); see also 8 CFR 208.16, 1208.16. The INA also authorizes

See INS v. Aguirre-Aguirre, 526 U.S. 415, 426–27 (1999); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 440–

41 (1987) (distinguishing between Article 33’s non-refoulement prohibition, which aligns with what was then called

withholding of deportation, and Article 34’s call to “facilitate the assimilation and naturalization of refugees,” which

the Court found aligned with the discretionary provisions in section 208 of the INA, 8 U.S.C. 1158). The Refugee

Convention and Protocol are not self-executing. E.g., Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (“The

1967 Protocol is not self-executing, nor does it confer any rights beyond those granted by implementing domestic

legislation.”).

the Secretary and the Attorney General to implement statutory withholding of removal under

section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). See INA 103(a)(1), (3), (g)(1)–(2), 8 U.S.C.

1103(a)(1), (3), (g)(1)–(2).

The Departments also have authority to implement Article 3 of the CAT. The Foreign

Affairs Reform and Restructuring Act of 1998 (“FARRA”) provides the Departments with the

authority to “prescribe regulations to implement the obligations of the United States under

Article 3 of the [CAT], subject to any reservations, understandings, declarations, and provisos

contained in the United States Senate resolution of ratification of the Convention.” Public L.

105–277, div. G, sec. 2242(b), 112 Stat. 2681, 2681–822 (codified at 8 U.S.C. 1231 note). DHS

and DOJ have implemented the obligations of the United States under Article 3 of the CAT in

the Code of Federal Regulations, consistent with FARRA. See, e.g., 8 CFR 208.16(c)–208.18,

1208.16(c)–1208.18; Regulations Concerning the Convention Against Torture, 64 FR 8478 (Feb.

19, 1999), amended by 64 FR 13881 (Mar. 23, 1999).

This rule is necessary because, while the Proclamation recognizes that the asylum system

has contributed to the border emergency, the Proclamation itself does not and cannot affect

noncitizens’ right to apply for asylum, eligibility for asylum, or asylum procedures. That has

been the Executive Branch’s consistent position for four decades.

That longstanding

understanding follows from the text and structure of the governing statutes. Section 212(f)

provides that under certain circumstances, the President may “suspend the entry of all aliens or

In 1984, then-Assistant Attorney General of the Office of Legal Counsel Theodore B. Olson advised that section

212(f) did not permit the President to eliminate the asylum rights of noncitizens who had hijacked a plane and, as a

condition of the plane’s release, been flown to the United States. And in 2018, the Departments reaffirmed that

“[a]n alien whose entry is suspended or restricted under . . . a [section 212(f)] proclamation, but who nonetheless

reaches U.S. soil contrary to the President’s determination that the alien should not be in the United States, would

remain subject to various procedures under immigration laws,” including “expedited-removal proceedings” where

they could “raise any claims for protection.” Aliens Subject to a Bar on Entry Under Certain Presidential

Proclamations; Procedures for Protection Claims, 83 FR 55934, 55940 (Nov. 9, 2018). Although Presidents have

invoked section 212(f) at least 90 times since 1981, to the Departments’ knowledge, none of those proclamations

was understood to affect the right of noncitizens on U.S. soil to apply for, or noncitizens’ statutory eligibility to

receive, asylum. See Kelsey Y. Santamaria et al., Cong. Rsch. Serv., Presidential Authority to Suspend Entry of

Aliens Under 8 U.S.C. § 1182(f) (Feb. 21, 2024). At the same time, nothing in the proclamations or the INA have

precluded the Departments from considering as an adverse discretionary criterion that a noncitizen is described in a

section 212(f) proclamation.

any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any

restrictions he may deem to be appropriate.” INA 212(f), 8 U.S.C. 1182(f). Although this

provision—first enacted in 1952—“grants the President broad discretion,” it “operate[s]” only in

its “sphere[].” Trump v. Hawaii, 585 U.S. 667, 683–84, 695 (2018). Section 212 of the INA, 8

U.S.C. 1182 (entitled “Inadmissible aliens”), generally “defines the universe of aliens who are

admissible” and “sets the boundaries of admissibility into the United States.” Id. at 695. Hence,

when section 212(f) authorizes the President to suspend “entry,” it “enabl[es] the President to

supplement the other grounds of inadmissibility in the INA,” id. at 684 (citing Abourezk v.

Reagan, 785 F.2d 1043, 1049 n.2 (D.C. Cir. 1986)), and to bar individuals from entry into the

United States.

This authority, though broad, does not authorize the President to override the asylum

statute.

The asylum statute, first enacted in the Refugee Act of 1980, today provides that

“[a]ny alien who is physically present in the United States or who arrives in the United

States . . . irrespective of such alien’s status, may apply for asylum.” INA 208(a)(1), 8 U.S.C.

1158(a)(1). The right to apply for asylum thus turns on whether a noncitizen is “physically

present” or has “arrive[d] in the United States,” id., as those terms are properly understood, and

exists regardless of whether a noncitizen is inadmissible.

As a result, the power under section

The Supreme Court, though it has never squarely addressed this issue, has also never indicated that section 212(f)

confers power to affect asylum rights of those present in the United States. Cf., e.g., Sale v. Haitian Ctrs. Council,

Inc., 509 U.S. 155, 174–77 (1993) (upholding a Coast Guard program of intercepting migrant vessels and returning

migrants to their home country, authorized in part by section 212(f), on the basis that statutory rights under the

withholding of removal statute did not have “extraterritorial application” to migrants who were not physically

present); Hawaii, 585 U.S. at 689, 695 (assuming, without deciding, that section 212(f) “does not allow the

President to expressly override particular provisions of the INA,” while emphasizing the particular “sphere[]” in

which it operates).

Section 212(f) contrasts with 42 U.S.C. 265, which authorizes the CDC to temporarily suspend “the right to

introduce . . . persons and property” into the United States if such suspension “is required in the interest of the public

health.” During the COVID-19 pandemic and to prevent the “serious danger of the introduction of [the] disease into

the United States,” 42 U.S.C. 265, the CDC issued an order invoking section 265 to expel certain noncitizens

without allowing asylum applications. As the final rule implementing section 265 explained, the provision is part of

a “broad public health statute” that “operates separately and independently of the immigration power” and

authorizes the CDC “to temporarily suspend the effect of any law . . . by which a person would otherwise have the

right to be introduced . . . into the U.S.,” Control of Communicable Diseases; Foreign Quarantine: Suspension of

the Right To Introduce and Prohibition of Introduction of Persons Into United States From Designated Foreign

Countries or Places for Public Health Purposes, 85 FR 56424, 56426, 56442 (Sept. 11, 2020), including the

212(f) to suspend “entry” does not authorize the President to override the asylum rights of

noncitizens who have already physically entered the United States and who are entitled to an

adjudication of eligibility under the applicable statutory and regulatory rules and standards.

This rule, as discussed elsewhere, is authorized because Congress has conferred upon the

Secretary and the Attorney General express rulemaking power to create new conditions and

limitations on asylum eligibility and create certain procedures for adjudicating asylum claims.

INA 103(a)(1), (a)(3), (g), 208(b)(1)(A), (b)(2)(C), (d)(5)(B), 8 U.S.C. 1103(a)(1), (a)(3), (g),

1158(b)(1)(A), (b)(2)(C), (d)(5)(B); INA 235(b)(1)(B)(iii)(III), (iv), 8 U.S.C.

1225(b)(1)(B)(iii)(III), (iv).

C. Summary of Provisions of the IFR

This IFR adds provisions at 8 CFR 208.13(g), 208.35, 235.15, 1208.13(g), and 1208.35

that effectuate three key changes to the process for those seeking asylum, statutory withholding

of removal, or protection under the CAT during emergency border circumstances giving rise to

the suspension and limitation on entry under the Presidential Proclamation of June 3, 2024,

Securing the Border (“Presidential Proclamation of June 3”):

immigration laws, id. at 56426 (noting that legislative history indicates that section 265 was intended to suspend

immigration if public health required it). The drafting history of section 265 also confirms that Congress conferred

authority to prohibit “the introduction of persons” in order to broaden this provision and that this provision

subsumed but was not limited to the authority to “suspend immigration.” Br. for Appellants at 41–43, Huisha-

Huisha v. Mayorkas, 27 F.4th 718 (D.C. Cir. 2022) (No. 21-5200); see Huisha-Huisha, 27 F.4th at 730–31

(determining plaintiffs not likely to succeed on their challenge to the CDC order on the ground that it improperly

suspended migrants’ right to apply for asylum). Section 265 is a public-health authority under the Public Health

Service Act. Its grant of authority to allow the CDC to temporarily suspend immigration laws in case of a public

health emergency has no relevance to the interpretation of section 212(f), which is in title 8.

For similar reasons, section 215(a) of the INA, 8 U.S.C. 1185(a), which the Proclamation also invokes, does not

authorize the President to impose the condition and limitation on asylum eligibility created by this rule. Cf. United

States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 540–47 (1950) (holding that under the precursor to section

215(a)(1) of the INA and the presidential proclamation and regulations issued pursuant to that provision, which

during times of national emergency made it unlawful for “any alien to . . . enter or attempt to . . . enter the United

States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as

the President shall prescribe,” the Attorney General could issue regulations governing entry during such an

emergency to “deny [certain noncitizens] a hearing . . . in special cases” notwithstanding the ordinary exclusion

hearing provisions governing entry). This does not mean, however, that the President could not invoke section

215(a) as authority to impose reasonable rules, regulations, and orders on asylum applicants and asylees, such as

travel document requirements for re-entry and departure controls.

• During emergency border circumstances, persons who enter across the southern

border and who are not described in section 3(b) of the Proclamation will be

ineligible for asylum unless they demonstrate by a preponderance of the evidence that

exceptionally compelling circumstances exist, including if the noncitizen

demonstrates that they or a member of their family as described in 8 CFR 208.30(c)

with whom they are traveling: (1) faced an acute medical emergency; (2) faced an

imminent and extreme threat to life or safety, such as an imminent threat of rape,

kidnapping, torture, or murder; or (3) satisfied the definition of “victim of a severe

form of trafficking in persons” provided in 8 CFR 214.11.

• During emergency border circumstances, rather than asking specific questions of

every noncitizen encountered and processed for expedited removal to elicit whether

the noncitizen may have a fear of persecution or an intent to apply for asylum, for

those who enter across the southern border and are not described in section 3(b) of the

Proclamation, DHS will provide general notice regarding the process for seeking

asylum, statutory withholding of removal, or protection under the CAT and will refer

a noncitizen for a credible fear interview only if the noncitizen manifests a fear of

return, expresses an intention to apply for asylum or protection, or expresses a fear of

persecution or torture or a fear of return to his or her country or the country of

removal.

• The limitation on asylum eligibility will be applied during credible fear interviews

and reviews, and those who enter across the southern border during emergency border

circumstances and are not described in section 3(b) of the Proclamation will receive a

negative credible fear determination with respect to their asylum claim unless there is

a significant possibility the noncitizen could demonstrate by a preponderance of the

evidence that exceptionally compelling circumstances exist. Such noncitizens will

thereafter be screened for a reasonable probability of persecution because of a

protected ground or torture, a higher standard than that applied to noncitizens in a

similar posture under the Circumvention of Lawful Pathways rule. The “reasonable

probability” standard is defined to mean substantially more than a “reasonable

possibility” but somewhat less than more likely than not.

As discussed throughout this IFR, these changes are designed to implement the policies and

objectives of the Proclamation by enhancing the Departments’ ability to address historic levels of

migration and efficiently process migrants arriving at the southern border during emergency

border circumstances.

III. Discussion of the IFR

A. Current Framework

1. Asylum, Statutory Withholding of Removal, and CAT Protection

Asylum is a discretionary benefit that can be granted by the Secretary or the Attorney

General if a noncitizen establishes, among other things, that they have experienced past

persecution or have a well-founded fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion. INA 208(b)(1)–(2), 8

U.S.C. 1158(b)(1)–(2) (providing that, unless subject to a mandatory bar, the Secretary or

Attorney General “may” grant asylum to refugees); INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A)

(defining “refugee”). As long as they retain their asylee status, noncitizens who are granted

asylum (1) cannot be removed or returned to their country of nationality or, if they have no

nationality, their last habitual residence, (2) receive employment authorization incident to their

status, (3) may be permitted to travel outside of the United States and return with prior consent,

and (4) may seek derivative benefits for their spouses or children. INA 208(c)(1), 8 U.S.C.

1158(c)(1); see Johnson v. Guzman Chavez, 594 U.S. 523, 536 (2021) (“[A] grant of asylum

permits an alien to remain in the United States and to apply for permanent residency after one

year[.]” (emphasis omitted) (internal quotation marks and citation omitted)); 8 CFR

274a.12(a)(5) (employment authorization incident to asylum status); 8 CFR 223.1(b) (allowing

for return to the United States after travel with a requisite travel document for a “person who

holds . . . asylum status pursuant to section 208 of the Act”); see also 6 U.S.C. 271(b)(3)

(transferring asylum functions to DHS); 6 U.S.C. 557 (providing that references to any other

officer shall be deemed to refer to the “Secretary” with respect to any transferred function); INA

208(b)(3), 8 U.S.C. 1158(b)(3) (derivative asylum status).

Asylum applications are generally classified as “affirmative” or “defensive” applications,

depending on the agency with which they are filed. If a noncitizen is physically present in the

United States, not detained, and not in section 240 removal proceedings, the noncitizen may file

an asylum application with USCIS. These applications are “affirmative” filings. Generally, if

the noncitizen is in section 240 removal proceedings before an IJ, the noncitizen may apply for

asylum before the IJ as a defense to removal.

These applications are “defensive” filings.

Noncitizens are eligible for asylum if they have been persecuted or have a well-founded

fear of future persecution in their country of nationality or, if they have no nationality, their last

habitual residence, on account of one of five protected grounds and are not subject to a bar to

eligibility. See generally INA 208, 8 U.S.C. 1158; INA 101(a)(42), 8 U.S.C. 1101(a)(42). To be

granted asylum, eligible noncitizens must also establish that they merit asylum in the exercise of

discretion. Id. Noncitizens who are ineligible for a grant of asylum, or who are denied asylum

based on the Attorney General’s or the Secretary’s discretion, may qualify for other forms of

protection. An application for asylum submitted by a noncitizen in section 240 removal

proceedings is also considered an application for statutory withholding of removal under section

241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). See 8 CFR 1208.3(b), 1208.13(c)(1). An IJ also may

consider a noncitizen’s eligibility for statutory withholding of removal and CAT protection under

regulations issued pursuant to the implementing legislation regarding the obligations of the

The only exception is that USCIS has initial jurisdiction over asylum applications filed by a UC even where the

applicant is in section 240 removal proceedings. INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C).

United States under Article 3 of the CAT. FARRA sec. 2242(b) (codified at 8 U.S.C. 1231

note); 8 CFR 1208.3(b), 1208.13(c)(1); see also 8 CFR 1208.16(c), 1208.17.

Statutory withholding of removal and CAT protection preclude removing a noncitizen to

any country where the noncitizen would “more likely than not” face persecution or torture,

meaning that the noncitizen’s life or freedom would be threatened because of a protected ground

or that the noncitizen would be tortured. 8 CFR 1208.16(b)(2), (c)(2). Thus, if a noncitizen

establishes that it is more likely than not that their life or freedom would be threatened because

of a protected ground, but is denied asylum for some other reason, the noncitizen nonetheless

may be entitled to statutory withholding of removal if not otherwise barred from that form of

protection. INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 8 CFR 208.16, 1208.16. Likewise, a

noncitizen who establishes that they more likely than not will face torture in their country of

removal will qualify for CAT protection. See 8 CFR 208.16(c), 208.17(a), 1208.16(c),

1208.17(a).

In contrast to the more generous benefits available by attaining asylum, statutory

withholding of removal and CAT protection do not: (1) prohibit the Government from removing

the noncitizen to a third country where the noncitizen would not face the requisite likelihood of

persecution or torture (even in the absence of an agreement with that third country); (2) create a

path to lawful permanent resident status; or (3) afford the same ancillary benefits, such as

derivative protection for family members. See, e.g., Guzman Chavez, 594 U.S. at 536

(“distinguish[ing] withholding-only relief from asylum” on the ground that withholding does not

preclude the Government from removing the noncitizen to a third country and does not provide

the noncitizen any permanent right to remain in the United States); Matter of A-K-, 24 I&N Dec.

275, 279 (BIA 2007) (stating that “the Act does not permit derivative withholding of removal

under any circumstances”); INA 208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A) (statutory provision

allowing asylum status to be granted to accompanying or following-to-join spouse or children of

a noncitizen granted asylum; no equivalent statutory or regulatory provision for individuals

granted withholding or deferral of removal).

2. Expedited Removal and Screenings in the Credible Fear Process

In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),

Pub. L. 104–208, div. C, 110 Stat. 3009, 3009–546, Congress established the expedited removal

process. The process is applicable to certain noncitizens present or arriving in the United States

(and, in the discretion of the Secretary, certain other designated classes of noncitizens) who are

found to be inadmissible under either section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C),

which renders inadmissible noncitizens who make certain material misrepresentations, or section

212(a)(7) of the INA, 8 U.S.C. 1182(a)(7), which renders inadmissible noncitizens who lack

documentation requirements for admission. INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i).

Upon being subject to expedited removal, such noncitizens may be “removed from the United

States without further hearing or review unless the [noncitizen] indicates either an intention to

apply for asylum . . . or a fear of persecution.” Id.

Congress created a screening process, known as “credible fear” screening, to identify

potentially valid claims for asylum by noncitizens in expedited removal proceedings. The

Departments have used the same screening process to identify potentially valid claims for

statutory withholding of removal and CAT protection. If a noncitizen indicates a fear of

persecution or torture, a fear of return, or an intention to apply for asylum during the course of

the expedited removal process, DHS refers the noncitizen to a USCIS AO to determine whether

the noncitizen has a credible fear of persecution or torture in the country of citizenship or

removal. INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4).

A noncitizen has a “credible fear of persecution” if “there is a significant possibility, taking into

account the credibility of the statements made by the alien in support of the alien’s claim and

such other facts as are known to the officer, that the alien could establish eligibility for asylum.”

INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). If the AO determines that the noncitizen does

not have a credible fear of persecution or torture, the noncitizen may request that an IJ review

that determination. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR

208.30(g), 208.33(b)(2)(v), 1208.30(g).

If the AO (or an IJ reviewing the AO’s decision) determines that a noncitizen has a

credible fear of persecution or torture, USCIS can refer the noncitizen to an immigration court

for adjudication of the noncitizen’s claims in section 240 removal proceedings, 8 CFR 208.30(f),

8 CFR 1208.30(g)(2)(iv)(B), and the noncitizen may subsequently file a defensive asylum

application with the court during those proceedings, see 8 CFR 1240.1(a)(1)(ii). Alternatively,

USCIS can retain jurisdiction over the application for asylum for further consideration in an

asylum merits interview. See 8 CFR 208.30(f). During an asylum merits interview, a positive

credible fear determination is treated as the asylum application, and strict timelines thereafter

govern the applicant’s case before both USCIS and EOIR. See 8 CFR 208.2(a)(1)(ii),

208.3(a)(2), 208.4(b)(2), 208.9(a)(1), (e)(1)–(2), (g)(2), (i), 1240.17. The AO may grant asylum,

subject to review within USCIS, where the noncitizen is eligible and warrants a grant as a matter

of discretion. 8 CFR 208.14(b). If the noncitizen is not eligible or does not warrant a grant of

asylum as a matter of discretion, the AO refers the application to EOIR. 8 CFR 208.14(c)(1).

Where USCIS does not grant asylum, the AO’s decision will also include a determination on

eligibility for statutory withholding of removal and CAT protection based on the record before

USCIS. 8 CFR 208.16(a), (c)(4).

For cases referred to EOIR following an asylum merits interview, the written record of

the positive credible fear determination serves as the asylum application, 8 CFR 1240.17(e), and

the record the AO developed during the asylum merits interview, as supplemented by the parties,

serves as the record before the IJ, 8 CFR 1240.17(c), (f)(2)(i)(A)(1), (f)(2)(ii)(B). The IJ reviews

applications for asylum de novo and also reviews applications for statutory withholding of

removal and CAT protection de novo where USCIS found the noncitizen ineligible for such

protection. 8 CFR 1240.17(i)(1). However, where USCIS found the noncitizen eligible for

statutory withholding of removal or CAT protection, IJs must give effect to USCIS’s eligibility

determination unless DHS demonstrates, through evidence or other testimony that specifically

pertains to the noncitizen and was not in the record of proceedings for the asylum merits

interview, that the noncitizen is not eligible for such protection. 8 CFR 1240.17(i)(2). With a

limited exception, DHS may not appeal the grant of any protection for which the AO determined

the noncitizen eligible. Id.

3. Lawful Pathways Condition on Asylum Eligibility

On March 20, 2020, the Director of the Centers for Disease Control and Prevention

(“CDC”) issued an order under 42 U.S.C. 265 and 268 suspending the introduction of certain

noncitizens from foreign countries or places where the existence of a communicable disease

creates a serious danger of the introduction of such disease into the United States and the danger

is so increased by the introduction of persons from the foreign country or place that a temporary

suspension of such introduction is necessary to protect the public health.

The CDC’s Title 42

public health Order was extended multiple times.

While the Title 42 public health Order was

in effect, noncitizens who did not have proper travel documents were generally not processed

into the United States; they were instead expelled to Mexico or to their home countries under the

Order’s authority without being processed under the authorities set forth in title 8 of the United

States Code, which includes the INA. Circumvention of Lawful Pathways, 88 FR 11704, 11705

(Feb. 23, 2023) (“Circumvention of Lawful Pathways NPRM”). In early 2023, the President

announced that the Administration expected to end the public health emergency on May 11,

CDC, Order Under Sections 362 & 365 of the Public Health Services Act (42 U.S.C. 265, 268): Order

Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists (Mar. 20, 2020),

https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf.

See Public Health Determination and Order Regarding Suspending the Right to Introduce Certain Persons From

Countries Where a Quarantinable Communicable Disease Exists, 87 FR 19941, 19941–42 (Apr. 6, 2022) (describing

the CDC’s recent Title 42 public health Orders, which “suspend[ed] the right to introduce certain persons into the

United States from countries or places where the quarantinable communicable disease exists in order to protect the

public health from an increased risk of the introduction of COVID-19”).

2023, which would cause the then-operative Title 42 public health Order to end. See id. at

11708.

As the Departments stated in the Circumvention of Lawful Pathways rule, absent further

action, the end of the Title 42 public health Order was expected to cause encounters with

noncitizens seeking to enter the United States at the SWB to rise to or remain at all-time highs—

as high as 11,000 migrants daily. 88 FR at 31331, 31315. And many of these individuals would

be entitled to remain in the United States pending resolution of their asylum and protection

claims. See INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii) (not allowing for removal of those

found to have a credible fear pending further consideration of the asylum claim); see also 88 FR

at 31363 (noting that “most non-Mexicans processed for expedited removal under Title 8 would

likely establish credible fear and remain in the United States for the foreseeable future”). The

Departments thus faced a looming urgent situation: absent policy change, the end of the Title 42

public health Order was expected to result in many more migrants crossing the border and

asserting claims of fear or seeking protection, which would in turn exceed the border security

and immigration systems’ capacity to process migrants in a safe, expeditious, and orderly way.

See 88 FR at 31363. To address this expected increase in the number of migrants at the SWB

and adjacent coastal borders seeking to enter the United States without authorization, the

Departments promulgated the Circumvention of Lawful Pathways rule. See 88 FR 31314.

The Circumvention of Lawful Pathways rule, which became effective on its public

inspection date, May 11, 2023, id., and applies to those who enter during a two-year period,

imposes a rebuttable presumption of asylum ineligibility on certain noncitizens who fail to

pursue safe, orderly, and lawful processes for entry into the United States or seek protection in

another qualifying country through which they traveled. 8 CFR 208.33(a), 1208.33(a). The

rebuttable presumption applies to noncitizens who enter the United States from Mexico at the

SWB or adjacent coastal borders without documents sufficient for lawful admission where the

entry is: (1) between May 11, 2023, and May 11, 2025; (2) subsequent to the end of

implementation of the Title 42 public health Order issued on August 2, 2021, and related prior

orders issued pursuant to the authorities in 42 U.S.C. 265 and 268 and the implementing

regulation at 42 CFR 71.40; and (3) after the noncitizen traveled through a country other than

their country of citizenship, nationality, or, if stateless, last habitual residence, that is a party to

the Refugee Convention or Refugee Protocol. 8 CFR 208.33(a)(1), 1208.33(a)(1).

The presumption does not apply to UCs or to noncitizens who availed themselves of or

were traveling with a family member who availed themselves of certain safe, orderly, and lawful

pathways—specifically those who (1) received appropriate authorization to travel to the United

States to seek parole, pursuant to a DHS-approved parole process; (2) presented at a POE

pursuant to a pre-scheduled time and place or presented at a POE without a pre-scheduled time

and place but who can demonstrate by a preponderance of the evidence that it was not possible to

access or use the DHS scheduling system due to language barrier, illiteracy, significant technical

failure, or other ongoing and serious obstacle; or (3) sought asylum or other protection in a

country through which the noncitizen traveled and received a final decision denying that

application. 8 CFR 208.33(a)(2), 1208.33(a)(2). Noncitizens may also overcome the

presumption by demonstrating by a preponderance of the evidence that “exceptionally

compelling circumstances exist.” 8 CFR 208.33(a)(3)(i), 1208.33(a)(3)(i). Such circumstances

necessarily exist where, at the time of entry, the noncitizen or a family member with whom the

noncitizen is traveling: (1) faced an acute medical emergency; (2) faced an imminent and

extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or

murder; or (3) was a victim of a severe form of trafficking in persons under 8 CFR 214.11(a). 8

CFR 208.33(a)(3)(i)(A)–(C), (ii), 1208.33(a)(3)(i)(A)–(C), (ii). A noncitizen presumed

ineligible for asylum under the rule may still apply for statutory withholding of removal or CAT

protection and thus may not be removed to a country where it is more likely than not that they

will be persecuted because of a protected ground or tortured.

The condition on asylum eligibility in the Circumvention of Lawful Pathways rule

(“Lawful Pathways condition”) applies to asylum applications before USCIS and EOIR. 8 CFR

208.13(f), 1208.13(f). It also applies during credible fear screenings. 8 CFR 208.33(b),

1208.33(b). Noncitizens subject to expedited removal who indicate a fear of persecution or an

intention to apply for asylum are currently first screened to assess whether the rebuttable

presumption applies and, if so, whether the noncitizen is able to rebut the presumption. 8 CFR

208.33(b). If the AO determines that the rebuttable presumption does not apply or the noncitizen

has rebutted the presumption, the general procedures governing the credible fear process then

apply. See 8 CFR 208.33(b)(1)(ii). On the other hand, if the AO determines that the noncitizen

is covered by the rebuttable presumption and no rebuttal ground applies, the AO will consider

whether the noncitizen has established a reasonable possibility of persecution or torture with

respect to the identified country or countries of removal. See 8 CFR 208.33(b)(1)(i), (b)(2). The

Circumvention of Lawful Pathways rule currently provides that, if a noncitizen has established a

reasonable possibility of persecution or torture, then DHS will issue a notice to appear (“NTA”)

to commence section 240 removal proceedings and may not refer the case to the asylum merits

interview process. 8 CFR 208.33(b)(2)(ii).

Where a noncitizen requests review by an IJ, the IJ reviews the negative credible fear

finding de novo. See 8 CFR 1208.33(b). If the IJ determines that the noncitizen has made a

sufficient showing that the rebuttable presumption does not apply to them or that they can rebut

the presumption, and that the noncitizen has established a significant possibility of eligibility for

asylum, statutory withholding of removal, or CAT protection, the IJ issues a positive credible

fear finding and the case proceeds under existing procedures. See 8 CFR 208.33(b)(2)(v)(A),

1208.33(b)(2)(i). If the IJ determines that the noncitizen is covered by the rebuttable

presumption and it has not been rebutted, but the noncitizen has established a reasonable

possibility of persecution or torture, the IJ issues a positive credible fear finding and DHS will

issue an NTA to commence section 240 removal proceedings. 8 CFR 208.33(b)(2)(v)(B),

1208.33(b)(2)(ii). And finally, if the IJ issues a negative credible fear determination, the case is

returned to DHS for removal of the noncitizen. See 8 CFR 208.33(b)(2)(v)(C), 1208.33(b)(2)(ii).

In such a circumstance, the noncitizen may not appeal the IJ’s decision or request that USCIS

reconsider the AO’s negative determination, although USCIS may, in its sole discretion,

reconsider a negative determination. See 8 CFR 208.33(b)(2)(v)(C).

A noncitizen who has not established during expedited removal proceedings a significant

possibility of eligibility for asylum because of the Lawful Pathways condition may, if placed in

section 240 removal proceedings, apply for asylum, statutory withholding of removal, or CAT

protection, or any other form of relief or protection for which the noncitizen is eligible. See 8

CFR 1208.33(b)(4). Where a principal asylum applicant in section 240 removal proceedings is

eligible for statutory withholding of removal or withholding of removal under the CAT and

would be granted asylum but for the rebuttable presumption, and where either an accompanying

spouse or child does not independently qualify for asylum or other protection from removal or

the principal asylum applicant has a spouse or child who would be eligible to follow to join that

applicant, the presumption shall be deemed rebutted as an exceptionally compelling

circumstance. 8 CFR 1208.33(c).

B. Justification

1. Global Migration at Record Levels

Border encounters in the 1980s, 1990s, and 2000s consisted overwhelmingly of single

adults from Mexico, most of whom were migrating for economic reasons.

Beginning in the

See 88 FR at 11708. According to OHSS Persist data and historic Office of Immigration Statistics (“OIS”)

Yearbooks of Immigration Statistics, Mexican nationals accounted for 87 to over 99 percent of apprehensions

between POEs of persons entering without inspection between 1981 and 2010. See March 2024 OHSS Persist

Dataset; see, e.g., INS, 1981 Statistical Yearbook of the Immigration and Naturalization Service 119 tbl. 53 (1981);

INS, 1999 Statistical Yearbook of the Immigration and Naturalization Service 208–11 tbl. 56 (Mar. 2002),

https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_1999.pdf. For more

information about Mexican migrants’ demographics and economic motivations during some of that time period, see

Jorge Durand et al., The New Era of Mexican Migration to the United States, 86 J. Am. Hist. 518, 525–27, 530–31,

535–36 (1999).

2010s, a growing share of migrants were from northern Central America

and, since the late

2010s, from countries throughout the Americas.

Since 2010, the makeup of border crossers has

significantly changed, expanding from Mexican single adults to single adults and families from

the northern Central American countries, and now to single adults and families from throughout

the hemisphere (and beyond). Those encountered also have been more likely to seek asylum and

other forms of relief or protection, straining the Departments’ capacity to process individuals

through expedited removal.

In the early 2010s, U.S. Border Patrol (“USBP”) encounters along the SWB reached

modern lows, averaging fewer than 400,000 per year from 2011 to 2018. See 88 FR at 11708.

This followed decades during which annual USBP encounters routinely numbered in the

millions; however, the overall share of those who were processed for expedited removal and

claimed a fear never exceeded 2 percent until 2011. Id. at 11708, 11716. Despite these

historically low encounter numbers, the Departments faced significant challenges in 2014 due to

an unprecedented surge in migration by UCs and in 2016 due to a surge in family units at the

border—demographics that present unique challenges due to their vulnerability.

Northern Central America refers to El Salvador, Guatemala, and Honduras. 88 FR at 11708 n.35.

According to OHSS Persist data, Mexican nationals continued to account for 89 percent of total CBP SWB

encounters in FY 2010, with northern Central Americans accounting for 8 percent and all other nationalities

accounting for 3 percent. March 2024 OHSS Persist Dataset. Northern Central Americans’ share of total CBP

SWB encounters increased to 21 percent by FY 2012 and averaged 48 percent from FY 2014 to FY 2019, the last

full year before the start of the COVID-19 pandemic. Id. Nationals from all other countries except Mexico and the

northern Central American countries accounted for an average of 5 percent of total CBP SWB encounters from FY

2010 to FY 2013, and for 10 percent of total encounters from FY 2014 to FY 2019. Id. This transition has

accelerated since the start of FY 2021, as Mexican nationals accounted for approximately 32 percent of total CBP

SWB encounters in FY 2021 through March 2024, including roughly 29 percent in the first six months of FY 2024;

northern Central Americans accounted for roughly 25 percent from FY 2021 through March 2024 (20 percent in FY

2024 through March 2024); and all other countries accounted for roughly 42 percent from FY 2021 through March

2024, including roughly 51 percent of FY 2024 encounters through March 2024. Id.

For noncitizens encountered at the SWB from FY 2014 to FY 2019 who were placed in expedited removal

proceedings, roughly 6 percent of Mexican nationals made fear claims that were referred to USCIS for

determination compared to roughly 57 percent of people from northern Central America and 90 percent of all other

nationalities. OHSS analysis of Enforcement Lifecycle data as of December 31, 2023; see also 88 FR at 11709 n.37.

Decl. of Blas Nuñez-Neto ¶ 6, E. Bay Sanctuary Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023)

(Dkt. 176–2).

From FY 2017 to FY 2019, however, encounters between the POEs along the SWB more

than doubled, to more than 850,000, and—following a significant drop during the beginning of

the COVID-19 pandemic—continued to increase in FY 2021 and FY 2022.

In FY 2021, USBP

encounters between POEs along the SWB reached a level not seen since the early 2000s—over

1.6 million.

In FY 2022, encounters at the SWB reached a new high-water mark, with total

USBP encounters exceeding 2.2 million.

FY 2023 saw a slight drop, but USBP encounters

remained high—over 2.0 million.

By early 2023, while the Title 42 public health Order was in

place, total encounters at the SWB—referring to the number of times U.S. officials encountered

noncitizens attempting to cross the SWB without authorization to do so either between or at

POEs—had reached all-time highs.

This dramatic increase in encounters has coincided with a

substantial and—setting aside the period of time when the Title 42 public health Order was in

effect—persistent increase in the number of noncitizens making fear claims in recent years. See

88 FR at 11716.

In 2019—prior to the implementation of the Title 42 public health Order—44

OHSS analysis of March 2024 OHSS Persist Dataset; see also OHSS, Immigration Enforcement and Legal

Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-

tables (last updated May 10, 2024) (providing historic data on SWB encounters).