2024-29617. Application of Certain Mandatory Bars in Fear Screenings

Table 1—Summary of the Expected Impacts of the Final Rule

Population impacted	Annual population estimate	Expected impacts
Noncitizens issued credible fear determinations by USCIS	USCIS credible fear determinations have ranged from 28,000 to 125,000 noncitizens per year in the last 5 fiscal years (see Table 3)	• Noncitizens who receive a positive credible fear determination and are referred to EOIR by USCIS might benefit from less time waiting for an immigration judge's decision on their protection claims. This is a benefit in terms of equity and fairness, for noncitizens. • Noncitizens who receive a negative credible fear determination due to application of mandatory bars may spend less time in detention, if they do not otherwise establish potential eligibility for protection under the Convention Against Torture. • Noncitizens who receive a negative credible fear determination due to application of mandatory bars might lose the opportunity to gather evidence during the period of time between the fear screening and the merits immigration judge hearing. The noncitizen might either contest application of mandatory bars in full merits proceedings, or seek appellate review of the adjudicator's application of the bar during a merits proceeding.
Noncitizens issued reasonable fear determinations by USCIS	USCIS reasonable fear determinations have ranged from 3,400 to 8,000 noncitizens per year in the last 5 fiscal years (see Table 3)	• Noncitizens who receive a positive reasonable fear determination and are referred to EOIR by USCIS might benefit from shorter waiting times for an immigration judge's decision on withholding or deferral of removal only.
		• Noncitizens who receive a negative reasonable fear determination due to application of mandatory bars may spend less time in detention, if they do not otherwise establish potential eligibility for protection under the Convention Against Torture.
		• Noncitizens who receive a negative reasonable fear determination due to application of mandatory bars might lose the opportunity to gather evidence during the period of time between the fear screening and the merits immigration judge hearing. The noncitizen might either contest application of mandatory bars, or seek appellate review of the adjudicator's application of the bar during a merits proceeding.
DHS-USCIS	850 AOs onboard as of Aug. 15, 2024 103	• In credible/reasonable fear cases where the AO exercises discretion to apply one of the mandatory bars, additional time may be spent developing the record as to the mandatory bar during fear screening interviews and conducting the written analysis related to the mandatory bar for the fear determination. This additional time may be offset to an extent by not having to include a separate analysis on the merits of the persecution claim in the fear determination where the negative credible or reasonable fear of persecution finding rests solely on the application of a mandatory bar. SAOs, in turn, may also spend additional time reviewing mandatory bar analyses in fear determinations where AOs exercise discretion to apply a mandatory bar at the screening stage.
EOIR	734 immigration judges at end of FY 2023, as well as support staff and other personnel 104	• Potential non-budgetary cost savings if time worked on credible fear cases and reasonable fear cases decreases due to a reduction of referrals of credible fear and reasonable fear cases for full proceedings on the merits before immigration judges.

In addition to the impacts summarized above, and as required by OMB Circular A-4, Table 2 presents the prepared accounting statement showing the costs and benefits to individuals affected by this rule.^[105]

Table 2—OMB A-4 Accounting Statement Time Period: FY 2019 Through FY 2023

Category	Primary estimate	Minimum estimate	Maximum estimate	Source citation
BENEFITS
Monetized Benefits	N/A	N/A	N/A	RIA
Annualized quantified, but unmonetized, benefits	N/A	N/A	N/A	RIA
Unquantified Benefits	The final rule will enable some asylum seekers to move through the asylum process more quickly than may be the case currently, with potential decreases in adjudication timelines, thus promoting both fairness with potentially less time in confinement for those noncitizens subject to a bar, if they do not otherwise establish potential eligibility for protection under the Convention Against Torture regulations and equity for those noncitizens in removal proceedings who are not subject to a mandatory bar.			RIA
	In this rule the swift removal of these noncitizens may create disincentives for other noncitizens who would be subject to these mandatory bars when considering attempting to enter the United States. The final rule might enhance the public safety of the United States due to swift removal of some noncitizens from the country who pose a threat to public safety or national security.
COSTS
Annualized monetized costs	N/A	N/A	N/A	RIA
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Annualized quantified, but unmonetized, costs	N/A	N/A	There could be potential non-budget related cost savings due to reduction of annual credible fear of persecution referrals and reasonable fear of persecution referrals for full proceedings on the merits by immigration judges, by 2.56 percent (808 credible fear of persecution cases on average per year) and 17.61 percent (174 reasonable fear of persecution cases on average per year) respectively, as this would allow resources at EOIR to be directed to other work.	RIA
Qualitative (unquantified) costs	Noncitizens who receive a negative credible fear or reasonable fear determination might lose the opportunity to gather evidence and contest the application of mandatory bars in full merits hearing or seek appellate review of the immigration judge's decision, as they will be removed quickly under this rule.			RIA
	Where AOs exercise discretion to apply a mandatory bar at the screening stage, AOs will spend additional time eliciting testimony related to and analyzing the mandatory bar in the screening determination, and SAOs will spend additional time reviewing fear determinations containing a mandatory bar analysis. This additional time spent by AOs may be offset to an extent by not having to include a separate persecution analysis in the fear determination where the negative credible or reasonable fear of persecution finding rests solely on the application of a mandatory bar.
TRANSFERS
Annualized monetized transfers	N/A	N/A	N/A	RIA
Annualized unquantified transfers	N/A	N/A	N/A	RIA
Miscellaneous Analyses/Category	Effects			Source citation
Effects on State, local, or Tribal governments	None.			RIA
Effects on small businesses	This rule does not directly regulate small entities, but rather individuals.			RIA
Effects on wages	None.			RIA
Effects on growth	None.			RIA

DHS is unable to quantify the impact of this rule with respect to the consideration of the mandatory bars for noncitizens who are a danger to the security of the United States at INA secs. 208(b)(2)(A)(iv) and 241(b)(3)(B)(iv), 8 U.S.C. 1158(b)(2)(A)(iv) and 1231(b)(3)(B)(iv), should the Security Bars rule go into effect. 85 FR 84160. Because the Departments have delayed the effective date of that rule and it has never been implemented, the Department is unable to draw on historical data where this public health-related security bar has been flagged in credible fear and reasonable fear screenings. Furthermore, as explained above in Section IV.E.2, the bars to asylum and withholding of removal promulgated under the Security Bars rule would only apply in particular public health-related circumstances. See 85 FR at 84193 (amending 8 CFR 208.13(c)).^[106] Because those circumstances are not currently in effect, DHS is unable to assess the potential population of noncitizens who would be subject to the provisions of the Security Bars and Processing rule under this rule. Finally, it is impossible to predict the number of cases when an AO would choose to use their discretion afforded by this rule to apply the security bars during a credible fear or reasonable fear screening.

2. Background and Purpose of the Rule

A DHS immigration officer who encounters a noncitizen subject to expedited removal may order the noncitizen to be “removed from the United States without further hearing or review” unless the noncitizen indicates “an intention to apply for asylum” or “a fear of persecution” or torture. INA sec. 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i); see8 CFR 235.3(b)(4). If the noncitizen indicates such an intention or fear, the immigration officer must refer the noncitizen for an interview by an AO to determine whether the noncitizen has a “credible fear of persecution.” INA sec. 235(b)(1)(A)(ii), (B)(ii), 8 U.S.C. 1225(b)(1)(A)(ii), (B)(ii). A credible fear is defined by statute as a “significant possibility” that the noncitizen could establish eligibility for asylum. INA sec. 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Under current regulations, a credible fear of persecution is a “significant possibility” that a noncitizen can establish eligibility for asylum under INA sec. 208, 8 U.S.C. 1158 or for statutory withholding of removal under INA sec. 241(b)(3), 8 U.S.C. 1231(b)(3). 8 CFR 208.30(e)(2). A credible fear of torture is a “significant possibility” that a noncitizen can establish that the noncitizen is eligible for withholding of removal or deferral of removal under the Convention Against Torture, pursuant to 8 CFR 208.16 or 8 CFR 208.17. 8 CFR 208.30(e)(3).^[107]

Certain noncitizens are prohibited from contesting removability before an immigration judge or from seeking any relief from removal. See INA sec. 238(b)(5), 8 U.S.C. 1228(b)(5) and INA sec. 241(a)(5), 8 U.S.C.1231(a)(5). If such an individual, who is ordered removed under INA sec. 238(b), 8 U.S.C. 1228(b) or whose order of removal is reinstated under INA sec. 241(a)(5), 8 ( print page 103407) U.S.C.1231(a)(5), expresses a fear of return to the country to which they have been ordered removed, the case must be referred to an AO, who will determine whether the individual has a “reasonable fear” of persecution or torture. 8 CFR 208.31(a) and (b). A reasonable fear of persecution or torture is a reasonable possibility that the noncitizen would be persecuted on account of their race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that they would be tortured in the country of removal. 8 CFR 208.31(c).

Though mandatory bars to asylum and withholding of removal had no impact on a credible fear or reasonable fear of persecution or torture determination before the current rulemaking, pursuant to existing procedures, AOs elicit testimony related to possible mandatory bars in credible fear and reasonable fear interviews.^[108] Under existing procedures, when information in the record indicates that a mandatory bar may apply to a noncitizen, the AO identifies the possible bar,^[109] and if, after consultation with a supervisory AO, there are reasonable grounds to believe a mandatory bar (other than firm resettlement) applies to a noncitizen, the AO completes a Memo of Adverse Information that is forwarded to ICE to notify ICE of the potential bar.^[110] Identifying any one of the possible mandatory bars does not affect the determination of whether a noncitizen has a credible fear or reasonable fear of persecution or torture.^[111] In credible fear cases, regardless of whether the AO flags a mandatory bar to asylum or withholding of removal, where the AO issues a positive credible fear determination, USCIS issues the noncitizen a Form I-862, Notice to Appear (NTA), for section 240 removal proceedings for further consideration of the noncitizen's claim. 8 CFR 208.30(e)(5). In reasonable fear cases, regardless of whether the AO flags a mandatory bar to withholding of removal, where the AO issues a positive reasonable fear determination, USCIS issues the noncitizen a Form I-863, Notice of Referral to the Immigration Judge, for consideration of the noncitizen's request for withholding of removal only. 8 CFR 208.31(e).

Table 3 illustrates the total credible fear determinations (positive and negative) issued by USCIS, the total credible fear completions by USCIS (including administrative closures), the total reasonable fear determinations (positive and negative) issued by USCIS, and the total reasonable fear completions by USCIS (including administrative closures) for FY 2019 through FY 2023. From FY 2019 through FY 2023, in the aggregate and excluding administrative closures, the majority of credible fear determinations made by USCIS resulted in positive determinations: 68.76 percent of credible fear determinations issued by USCIS were positive,^[112] and 31.24 percent were negative.^[113] When administrative closures are included in the aggregate for that same period, 62.63 percent of credible fear completions resulted in positive determinations,^[114] 28.45 percent resulted in negative determinations,^[115] and 8.92 percent were administratively closed.^[116] For reasonable fear determinations issued by USCIS from FY 2019 to FY 2023, in the aggregate and excluding administrative closures, 36.52 percent resulted in positive determinations,^[117] and 63.48 percent resulted in negative determinations.^[118] For those same years, if administrative closures are included, 25.73 percent of reasonable fear completions by USCIS resulted in positive determinations,^[119] 44.72 percent resulted in negative determinations,^[120] and 29.55 percent were administratively closed.^[121]

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Table 4 presents instances where AOs flagged a potential bar to asylum or withholding of removal in a screening interview. It illustrates the distribution of possible mandatory bars across credible fear and reasonable fear completions. Without accounting for the “firm resettlement” bar, these mandatory bars protect the public from individuals who have persecuted others, have been convicted of significant crimes, represent a danger to the public, or have engaged in terrorist activity. Currently, flagging of any of the mandatory bars does not affect the credible or reasonable fear determination. Records show that of 232,479 total positive credible fear determinations and 10,334 total positive reasonable fear determinations for FY 2019 through FY 2023, AOs flagged mandatory bars in 15,982 total positive credible fear determinations (6.87 percent ^[122] ) and 2,598 total positive reasonable fear determinations (25.14 percent ^[123] ). In some instances, AOs may have flagged multiple mandatory bars in one case. Of those determinations, AOs flagged a mandatory bar other than the firm resettlement bar in 7,653 positive credible fear determinations and 2,407 positive reasonable fear determinations. Overall, AOs flagged a mandatory bar, other than the firm resettlement bar, in 3.29 percent ^[124] of total positive credible fear determinations and 23.29 percent ^[125] of total positive reasonable fear determinations.

Table 4—Fear Determinations by Specific Possible Mandatory Bars

[FY 2019 through FY 2023 total]

5-Year total	Positive credible fear determination	Negative credible fear determination	Positive reasonable fear determination	Negative reasonable fear determination
Total Determinations Flagging Mandatory Bars	15,982	8,923	2,598	5,242
Total Determinations Flagging Mandatory Bars Excl. Firm Resettlement Bar	7,653	4,004	2,407	4,979
Total Determinations *	232,479	105,608	10,334	17,960
Mandatory Bars as % of Total Determinations	6.87%	8.45%	25.14%	29.19%
Possible Mandatory Bars Excl. Firm Resettlement as % of Total Determinations	3.29%	3.79%	23.29%	27.72%
Source: USCIS Refugee, Asylum, and International Operations (“RAIO”) Directorate, Global (queried Sept. 9, 2024).
Note: Fiscal Year refers to Case Completion Year. Cases can have more than one possible bar. * Total Determinations row derived from Table 3: Credible Fear and Reasonable Fear Data (FY 2019 through FY 2023), 5-year totals.

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During removal proceedings, the immigration judge determines whether a mandatory bar applies. ICE OPLA may consider and further develop the information identified by the AO when litigating before EOIR, and EOIR may consider this information along with other relevant factors in the case during the adjudication in immigration court proceedings.^[126] ICE ERO and EOIR may rely upon the identification of the potential bar in making custodial determinations.^[127] In Table 5, USCIS illustrates the EOIR pending caseload over the last five fiscal years. As of FY 2023, there were approximately 2.47 million pending cases. The EOIR pending caseload is a cumulative effect of multiple factors, such as, though not limited to, pending cases from previous years, new cases filed by DHS, the number of immigration judges onboard to adjudicate cases, and the space available on each judge's docket.^[128]

Table 5—Pending Cases, Initial Receipts and Total Completions at Executive Office for Immigration Review (EOIR)

[FY 2019 through FY 2023]

Fiscal year	Pending cases at end of fiscal year 1	Initial receipts 2	Total completions 3
2019	1,088,606	547,289	277,078
2020	1,261,077	369,705	232,296
2021	1,408,801	244,277	115,941
2022	1,791,493	707,589	314,696
2023	2,469,960	1,206,201	526,203
5-Year Total	8,019,937	3,075,061	1,466,214
5-Year Annual Average	1,603,987	615,012	293,243
Source: EOIR, “Pending Cases, New Cases, and Total Completions, Data Generated: July 19, 2024” https://www.justice.gov/​eoir/​media/​1344791/​dl?​inline last accessed Oct. 3, 2024).
Notes:1  Pending cases equals removal, deportation, exclusion, asylum-only, and withholding only.
2  Initial receipts equals removal, deportation, exclusions, asylum-only, and withholding only.
3  Total completions equals initial case completions plus subsequent case completions.

The purpose of this rule is to allow for consideration of mandatory bars during the credible fear of persecution screening process for certain noncitizens who are placed into expedited removal under INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1) and have been referred to USCIS for a fear screening pursuant to 8 CFR 208.30, 208.33, 208.35, INA sec. 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii), and to allow for the consideration of mandatory bars during the reasonable fear screening process for certain noncitizens who have been ordered removed under INA sec. 238(b), 8 U.S.C. 1228(b), or whose deportation, exclusion, or removal order has been reinstated under INA sec. 241(a)(5), 8 U.S.C. 1231(a)(5) and who are referred to USCIS for a reasonable fear screening pursuant to 8 CFR 208.31. The rule would allow AOs discretion to consider certain mandatory bars during a screening interview and, if an AO exercises that discretion, require AOs to enter a negative fear determination where there is evidence the mandatory bar may apply, the noncitizen is unable to establish at the relevant standard that the bar does not apply, and the noncitizen is otherwise unable to demonstrate a fear of torture at the applicable standard in a given case. The specific mandatory bars this rule would allow AOs to consider are those relating to public safety and/or national security threats, with the intent of allowing the Department flexibility in some cases to more quickly remove individuals who present such concerns. As the rule is not changing the current treatment of the “firm resettlement” mandatory bar, any fear screening determination will not be affected by information in the record related to a possible firm resettlement bar.^[129]

The rule does not apply to unaccompanied children statutorily exempted from placement into expedited removal. It also does not apply to individuals already residing in the United States and whose presence in the United States is outside the coverage of noncitizens designated by the Secretary as subject to expedited removal, provided such individuals have not been ordered removed under INA sec. 238(b), 8 U.S.C. 1228(b), or have not had an order of removal are reinstated under INA sec. 241(a)(5), 8 U.S.C.1231(a)(5). The rule also does not apply to stowaways or noncitizens who are physically present in or arriving in the Commonwealth of the Northern Mariana Islands (CNMI). Those classes of noncitizens will continue to be referred to asylum/withholding-only hearings before an immigration judge under 8 CFR 208.2(c).

3. Impacts of the Rule

a. Impacts on the Population Screened for Credible Fear or Reasonable Fear

The final rule will impact certain individuals who undergo credible fear or reasonable fear screenings. These individuals are noncitizens who, where an AO exercises discretion to consider certain mandatory bars to asylum or statutory withholding of removal, are unable to establish at the relevant standard of proof that the bar or bars at issue do not apply to them and are otherwise unable to establish a fear of torture at the applicable standard for the given case. The type of credible fear or reasonable fear screenings where this rule could be outcome-determinative is limited to cases where a noncitizen is not found to have a credible fear or reasonable fear of torture and would ( print page 103410) have been found to have a credible fear of persecution or a reasonable fear of persecution but for the application of a bar under this rule. The type of credible or reasonable fear determination where this rule will not be outcome-determinative are cases where a positive credible or reasonable fear of torture is found. Table 6 shows positive credible fear of persecution only cases and positive reasonable fear of persecution only cases; and a subset of those cases that were identified during the last five fiscal years as having mandatory bars other than the firm resettlement bar. For FY 2019 through FY 2023, USCIS records indicated that of total positive credible fear of persecution determinations, USCIS identified a potential mandatory bar (other than firm resettlement) in 2.56 percent of total cases with a positive credible fear of persecution determination. From FY 2019 through FY 2023, USCIS identified a potential bar to withholding of removal in 17.61 percent of positive reasonable fear of persecution determinations.

Table 6—Positive Credible Fear of Persecution, Positive Reasonable Fear of Persecution, Possible Mandatory Bar Flag Excluding Firm Resettlement

[FY 2019 through FY 2023]

Fiscal year	Credible fear of persecution			Reasonable fear of persecution
	Positive determination		Possible mandatory bar excl. firm resettlement as share of credible fear of persecution cases (%)	Positive determination		Possible mandatory bar excl. firm resettlement as share of reasonable fear of persecution cases (%)
	Possible mandatory bar excluding firm resettlement	Total credible fear of persecution cases		Possible mandatory bar excluding firm resettlement	Total reasonable fear of persecution cases
2019	898	50,074	1.79	173	1,333	12.98
2020	357	8,887	4.02	56	394	14.21
2021	522	24,512	2.13	82	541	15.16
2022	664	24,277	2.74	239	1,127	21.21
2023	1,600	50,132	3.19	318	1,534	20.73
5-Year Total	4,041	157,882	2.56	868	4,929	17.61
5-Year Annual Average	808	31,576		174	986
Source: USCIS RAIO Directorate, Global (queried Sept. 9, 2024).
Note: Fiscal Year refers to Case Completion Year.
Note: Table 6 excludes Credible Fear of Torture and Reasonable Fear of Torture cases.