DHS Final Rule for Application of Certain Mandatory Bars in Fear Screenings

December 18, 2024

The Department of Homeland Security (DHS) issued a final rule on December 18, 2024, which amends 8 CFR 208.30(e) and 208.33(b) “to allow asylum officers (AOs) to consider the potential applicability of certain bars to asylum and statutory withholding of removal during credible fear and reasonable fear screenings, including credible fear screenings where the Circumvention of Lawful Pathways or Securing the Border rules apply.” This rule broadens AOs discretionary powers by allowing them to consider mandatory bars set forth at INA 208(b)(2)(A)(i)-(v) and for purposes of reasonable fear, those at INA 241(b)(c)(3)(B).  These include the persecutor bar, one who has been convicted of a particularly serious crime, one who has committed a serious non-political offense outside the United States, where there are reasonable grounds to believe the alien is a security danger and the terrorist bar. The burden is placed on the noncitizen to demonstrate that no bar applies to them. Fear screenings will not be impacted by the firm resettlement bar. DHS received 4,293 comments during the 30-day public comment period. However, DHS decided to not make any substantive modifications to the regulatory text proposed. This final rule will become effective January 17, 2025. DHS states the goal of this amendment is to “more swiftly remove certain noncitizens who are barred from asylum and statutory withholding of removal.”

This rule is outcome-determinative “where a noncitizen is not found to have credible fear or reasonable fear of torture and would 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.” On the other hand, the rule is not outcome-determinative where there is a positive credible or reasonable fear of torture because “the screening for torture encompasses screening for deferral of removal under CAT, for which there are no bars.”  If the AO finds that a bar applies and therefore warrants a denial of credible fear, the burden of proof is on the noncitizen to establish by preponderance of the evidence that there is a reasonable probability of torture in order to refer the matter for CAT proceedings.

DHS expects noncitizens who either receive a negative credible or 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.” Furthermore, noncitizens who receive a negative credible 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.” DHS states that it expects noncitizens who either received a positive credible or reasonable fear determination “might benefit from short waiting times for an immigration judge’s decision.”

To discuss what this new rule may mean for your case, please contact the attorney at LHSCD working on your case. Or, you may set up a consultation with one of our attorneys by filling out our Consultation Request Form.

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