Administrative Record — East Bay Sanctuary Covenant v. Barr, No. 3:19-cv-04073-JST (N.D. Cal.)

Date: 2019-07-19

Summary

The Administrative Record filed July 19, 2019 as Document 29-1 in East Bay Sanctuary Covenant, et al. v. William Barr, et al., Civil Action No. 3:19-cv-04073-JST, in the U.S. District Court for the Northern District of California. It is submitted by U.S. Department of Justice counsel for the defendants, including Assistant Attorney General Joseph H. Hunt and Erez Reuveni of the Office of Immigration Litigation. A Certified Index to Administrative Record lists numbered documents with AR page numbers, among them 83 FR 55934 (Nov. 9, 2018), Executive Office for Immigration Review adjudication statistics, Department of Homeland Security border reports, and European Union and UNHCR materials on the Dublin Convention. The 185-page filing closes with Regulation (EU) No 604/2013 and a statement by the Council, the European Parliament and the Commission.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Case 3:19-cv-04073-JST Document 29-1 Filed 07/19/19 Page 1 of 185

JOSEPH H. HUNT
1
Assistant Attorney General
2 SCOTT G. STEWART
Deputy Assistant Attorney General
3 WILLIAM C. PEACHEY
Director
4
EREZ REUVENI
5 Assistant Director
Office of Immigration Litigation
6 U.S. Department of Justice, Civil Division
7 P.O. Box 868, Ben Franklin Station
Washington, DC 20044
8 Tel: (202) 307-4293
Email: Erez.R.Reuveni@usdoj.gov
9 PATRICK GLEN
10 Senior Litigation Counsel

11
UNITED STATES DISTRICT COURT
12 FOR THE NORTHERN DISTRICT OF CALIFORNIA
13
14 )
East Bay Sanctuary Covenant, et al., )
15 )
16 Plaintiffs, ) ADMINISTRATIVE RECORD
)
17 v. ) Civil Action No. 3:19-cv-04073-JST
)
18
William Barr, et al., )
19 )
Defendants. )
20 )
21
22
23
24
25
26
27
28

ADMINISTRATIVE RECORD
East Bay Sanctuary v. Trump,
Case No. 3:19-cv-04073-JST
Case 3:19-cv-04073-JST Document 29-1 Filed 07/19/19 Page 2 of 185

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

)
East Bay Sanctuary Covenant, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 3:19-cv-04073-JST
)
William Barr, et al., )
)
Defendants. )
)

CERTIFIED INDEX TO ADMINISTRATIVE RECORD

DOCUMENT PAGE

1. Aliens Subject to a Bar on Entry under Certain Presidential Proclamations;
Procedures for Protection Claims, 83 FR 55934 (Nov. 9, 2018) . . . . . . . . . . . . . . . . . . . . . . AR001

2. Executive Office for Immigration Review, Pending Cases as of May 30, 2019 . . . . . . . AR021

3. Executive Office for Immigration Review, Adjudication Statistics:
Pending Cases (Apr. 23, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR022

4. Executive Office for Immigration Review,
Immigration Judge (IJ) Hiring (July 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR023

5. Notice of Availability for Policy Guidance Related to Implementation
of the Migrant Protection Protocols, 84 FR 6811 (Feb. 28, 2019) . . . . . . . . . . . . . . . . . AR024

6. Refugee and Asylum Procedures, 45 FR 37392 (June 2, 1980) . . . . . . . . . . . . . . . . . . . AR025

7. H.R. Rep. No. 104-469, pt. 1, p.107 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR030

8. United States Citizenship & Immigration Services, Credible Fear
and Reasonable Fear Statistics and Nationality Report:
Fiscal Year 2018, 4th Quarter, July 1- Sept. 30, 2018 (Nov. 16, 2018) . . . . . . . . . . . . . .AR037

9. United States Citizenship & Immigration Services, Credible Fear
Workload Report Summary: January 2019 (Feb. 22, 2019) . . . . . . . . . . . . . . . . . . . . . .AR041

10. Executive Office for Immigration Review, Adjudication Statistics:
Total Asylum Applications (Apr. 23, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR045

1
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11. Department of Homeland Security, Migrant Protection Protocols (Jan. 24, 2019) . . . . AR046

12. Department of Homeland Security, Border Security Metrics Report (May 1, 2018) . . .AR051

13. U.S. Customs and Border Protection, Enforcement Actions
Southwest Border Total: Apprehensions and Inadmissible Aliens
by Country of Citizenship (FY17–FY19 TD May) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR119

14. United States Citizenship & Immigration Services, Credible Fear
& Reasonable Fear Workload: FY06–FY13 Q1 (May 16, 2013). . . . . . . . . . . . . . . . . . AR120

15. Executive Office for Immigration Review, Adjudication Statistics:
Asylum Decision & Filing Rates in Cases Originating
with a Credible Fear Claim (Apr. 12, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR121

16. European Union, Convention Determining the State Responsible
for Examining Applications for Asylum Lodged in one of the
Member States of the European Communities (Dublin Convention)
(June 15, 1990), Official Journal C 254, p.0001-0012 (Aug. 19, 1997) . . . . . . . . . . . . .AR122

17. UN High Commissioner for Refugees (UNHCR), UNHCR Position on
Conventions Recently Concluded in Europe (Dublin and Schengen
Conventions) (Aug. 16, 1991), 3 European Series 2, p. 385 . . . . . . . . . . . . . . . . . . . . . .AR138

18. Regulation (EU) No 604/2013 of the European Parliament and of the Council
of 26 June 2013, Establishing the Criteria and Mechanisms for Determining
the Member State Responsible for Examining an Application for International
Protection Lodged in One of the Member States by a Third-Country National
or a Stateless Person (Recast), 2013 O.J. (L 180) 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . AR143

19. Visas: Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended, 81 FR 5906 (Feb. 4, 2016) . . . . . . . . . . . . . . . . . . . . . . . AR172

20. Suspending the 30-Day and Annual Interview Requirements
From the Special Registration Process for Certain Nonimmigrants,
68 FR 67578 (Dec. 2, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR175

21. Eliminating Exception to Expedited Removal Authority for Cuban Nationals
Arriving by Air, 82 FR 4769 (Jan. 17, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR182

22. Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11, 2004) . . . . . . . . . AR187

23. Executive Office for Immigration Review, Adjudication Statistics:
“Family Unit” Data for Select Courts (June 17, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . .AR192

24. Exec. Order 13767, 82 FR 8793 (Jan. 25, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR193

25. Flights to and From Cuba, 81 FR 14948 (Mar. 21, 2016) . . . . . . . . . . . . . . . . . . . . . . . .AR198

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26. Eliminating Exception To Expedited Removal Authority for Cuban Nationals
Encountered in the United States or Arriving by Sea, 82 FR 4902 (Jan. 17, 2017) . . . . AR204

27. Department of Homeland Security, Southwest Border Encounters
of Non-Mexican Aliens by Month and Year FY2013–FY2019Q2 . . . . . . . . . . . . . . . . .AR208

28. U.S. Customs & Border Protection, Southwest Border Enforcement
Actions: March Official Reporting (Apr. 1, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR210

29. U.S. Customs & Border Protection, Southwest Border Total Apprehensions
& Inadmissible Aliens FY19 April–September Planning Profile (Apr. 10, 2019) . . . . .AR212

30. Department of Homeland Security, OTM Caravan Breakdown
in Mexico (Apr. 22, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR221

31. U.S. Customs & Border Protection, Southwest Border Apprehensions
by Sector: Fiscal Year 2019 (July 10, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR222

32. U.S.-Mexico Joint Declaration (June 7, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR231

33. Proposed Interdiction of Haitian Flag Vessels, 5 Op. O.L.C. 242, 244-45 (1981) . . . . .AR233

34. Stipulated Settlement Agreement, Flores v. Reno,
No. 85-cv-4544 (C.D. Cal. Jan. 17, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR241

35. Memorandum for All Immigration Judges, et al., from The Office of the Chief
Immigration Judge, Executive Office for Immigration Review (May 14, 1999) . . . . . . AR264

36. Memorandum of Understanding Between the Department of Homeland Security
of the United States of America and the Secretariat of Governance and the Secretariat
of Foreign Affairs of the United Mexican States, on the Safe, Orderly,
Dignified and Humane Repatriation of Mexican Nationals (Feb. 20, 2004) . . . . . . . . . AR277

37. Statement by Secretary Johnson on Southwest Border Security, Oct. 17, 2016 . . . . . . .AR282

38. Medecins Sans Frontieres, Forced to Flee Central America’s Northern Triangle:
A Neglected Humanitarian Crisis (May 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR286

39. United Nations, Food Security and Emigration, Aug. 2017 . . . . . . . . . . . . . . . . . . . . . .AR318

40. United Nations, Food Security and Emigration, Sept. 2017 . . . . . . . . . . . . . . . . . . . . . .AR342

41. Juan Montes, Migrant Caravan Crosses Mexico’s Southern Border,
Wall St. J. (Oct. 19, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR434

42. Nick Miroff & Carolyn Van Houten, The Border Is Tougher To Cross than Ever.
But There’s Still One Way into America, Wash. Post. (Oct. 24, 2018) . . . . . . . . . . . . . .AR438

3
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43. Delphine Schrank, Mexico Offers Plan To Keep U.S.-bound Immigrants
in Mexico, Reuters (Oct. 26, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR450

44. Christopher Sherman, ‘We’re heading north!’ Migrants nix offer
to stay in Mexico, Associated Press (Oct. 27, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR452

45. Remarks by President Trump on the Illegal Immigration Crisis
and Border Security, Nov. 1, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR455

46. Asylum and Withholding of Deportation Procedures,
55 FR 30674 (July 27, 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR466

47. New Rules Regarding Procedures for Asylum and Withholding of Removal,
63 FR 31945 (June 11, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR481

48. Regulations Concerning the Convention Against Torture,
64 FR 8478 (Feb. 19, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR487

49. Asylum Procedures, 65 FR 76121 (Dec. 6, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR506

50. Implementation of the Agreement Between the Government of the
United States of America and the Government of Canada Regarding
Asylum Claims Made in Transit and at Land Border Ports-of-Entry,
69 FR 10620 (Mar. 8, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR525

51. UNHCR, Fact Sheet: Mexico (April 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR533

52. Frank Jack Daniel & Julio-Cesar Chavez, U.S. Ramps Up Mexico Asylum
Returns, Trump Confirms ‘Safe Third Country’ Plan, Reuters (June 14, 2019) . . . . . . AR537

53. Department of Homeland Security, Memorandum from Secretary
Kirstjen M. Nielsen for Kevin K. McAleenan, Commissioner,
U.S. Customs and Border Protection, and Ronald D. Vitiello,
Deputy Director and Senior Official Performing the Duties of Director,
U.S. Immigration and Customs Enforcement, Policy Guidance for
Implementation of the Migrant Protection Protocols (Jan. 25, 2019) . . . . . . . . . . . . . . AR539

54. U.S. Customs and Border Protection, Guiding Principles for
Migrant Protection Protocols (Jan. 28, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR543

55. U.S. Customs and Border Protection, Memorandum from Kevin K. McAleenan,
Commissioner, for Todd C. Owen, Executive Assistant Commissioner,
Field Operations, and Carla L. Provost, Chief, U.S. Border Patrol,
Implementation of the Migrant Protection Protocols (Jan. 28, 2019) . . . . . . . . . . . . . . .AR545

56. U.S. Customs and Border Protection, Memorandum from Todd A. Hoffman,
Executive Director, Admissibility and Passenger Programs,
Office of Field Operations, for Director, Field Operations, Office of Field

4
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Operations and Director Field Operators Academy, Office of Training and
Development, Guidance on Migrant Protection Protocols (Jan. 28, 2019) . . . . . . . . . . .AR546

57. U.S. Immigration and Customs Enforcement, Memorandum from Ronald
Vitello, Deputy Director and Senior Official Performing the Duties of the
Director, for Executive Associate Directors and Principal Legal Advisor,
Implementation of the Migrant Protection Protocols (Feb. 12, 2019) . . . . . . . . . . . . . . AR547

58. U.S. Immigration and Customs Enforcement, Memorandum from
Nathalie R. Asher, Acting Executive Associate Director,
for Field Office Directors, Enforcement and Removal Operations,
Migrant Protection Protocols Guidance (Feb. 12, 2019) . . . . . . . . . . . . . . . . . . . . . . . . .AR549

59. U.S. Citizenship and Immigration Services, Policy Memorandum PM-602-0169,
Guidance for Implementing Section 235(b)(2)(C) of the Immigration and Nationality
Act and the Migrant Protection Protocols (Jan. 28, 2019) . . . . . . . . . . . . . . . . . . . . . . . AR553

60. Executive Office for Immigration Review, Adjudication Statistics:
New Cases and Total Completions: FY1983–FY2019 Q2 (Apr. 23, 2019) . . . . . . . . . .AR558

61. United Nations, 1951 Convention Relating to the Status of Refugees,
Treaty Series, vol. 189, p.137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR560

62. United Nations, 1967 Protocol Relating to the Status of Refugees,
Treaty Series, vol. 606, p.267 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR581

63. United Nations, Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment, Treaty Series, vol. 1465, p.85 . . . . . . . . . . . . .AR588

64. Executive Office for Immigration Review, Statistics Yearbook FY2017 . . . . . . . . . . . AR589

65. Executive Office for Immigration Review, Asylum Median
Processing Time (I-862 & I-863 Case Completions),
October 1, 2014 through June 30, 2019 (July 12, 2019) . . . . . . . . . . . . . . . . . . . . . . . . AR634

66. Louise Radnofsky, Trump Says Guatemala Is Set To Help Stem
Migrant Flow, WSJ (Jun 18, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR635

67. UNHCR, Universal Periodic Review: Mexico (3rd Cycle, 31st Session) . . . . . . . . . . . . AR638

68. Memorandum from President Donald J. Trump to the Attorney General and
Secretary of Homeland Security, Additional Measures to Enhance Border Security
and Restore Integrity to Our Immigration System (Apr. 29, 2019) . . . . . . . . . . . . . . . . AR658

69. Sarah Kinosian, As United States’ ‘Remain in Mexico’ Plan Begins,
Mexico Plans To Shut Its ‘Too Successful’ Humanitarian Visa Program,
GlobalPost (Jan. 24, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR660

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70. UNHCR, Universal Periodic Review: Commonwealth of the Bahamas. . . . . . . . . . . . .AR669

71. Dara Lind, The Border Is in Crisis. Here’s How It Got This Bad,
Vox (June 5, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .AR675

72. Department of Homeland Security, Migrant Protection Protocols:
Daily Situational Report (June 5, 20-19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR693

73. Sonia Perez, Migrants Anxious After Mexican Authorities Raid Caravan,
Associated Press (Apr. 23, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR696

74. Lizbeth Diaz & Delphine Schrank, Mexico’s Refugee Agency Turns
to UN Amid Asylum Surge, Funding Cuts, Reuters (May 22, 2019) . . . . . . . . . . . . . . .AR699

75. Human Rights First, Is Mexico Safe for Refugees and Asylum Seekers?,
Fact Sheet (Nov. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR702

76. Amnesty International, Overlooked, Under-Protected: Mexico’s Deadly
Refoulement of Central Americans Seeking Asylum (Jan. 2018) . . . . . . . . . . . . . . . . . .AR704

77. U.S. Department of State, 2017 Country Reports on Human
Rights Practices (Apr. 20, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR728

78. Jose A. Del Real, ‘They Were Abusing Us the Whole Way’: A Tough
Path for Gay and Trans Migrants, New York Times (July 11, 2018) . . . . . . . . . . . . . . .AR756

79. Miriam Jordan, More Migrants Are Crossing the Border this Year.
What’s Changed?, NY Times (March 5, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR767

80. Executive Office for Immigration Review, Credible Fear & Asylum Process:
FY2008–FY2019 Q2 (Apr. 23, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR770

81. Safe Third Countries for Asylum-Seekers: Why Mexico Does Not Quality
as a Safe Third Country, Women’s Refugee Commission (May 21, 2018) . . . . . . . . . .AR771

82. Valeria Fernandez, On the way to the US, Children
Seeking Asylum Are Often Put in Mexico’s Detention Centers,
Public Radio International (Jan. 3, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AR777

83. U.S. Citizenship and Immigration Services, Credible fear Process at the FRCs. . . . . . .AR789

84. The White House, Our Nation’s Weak Asylum Laws Are
Encouraging an Overwhelming Increase in Illegal Immigration,
Fact Sheet (Nov.1, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AR790

6
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Case 3:19-cv-04073-JST Document 29-1 Filed 07/19/19 Page 9 of 185

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

)
East Bay Sanctuary Covenant, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 1:19-cv-04073-JST
)
William Barr, et al., )
)
Defendants. )
)

CERTIFICATION OF ADMINISTRATIVE RECORD
My name is Christina Bobb. I am employed with the U.S. Department of Homeland
Security, as the Executive Secretary. I am responsible for the oversight and management of the
Office of the Executive Secretary, which oversees the management of written communication
intended for, and originated by, the Secretary and Deputy Secretary of Homeland Security and
maintains official Department records. I have held this position since May 2018, including on July
16, 2019, when the Departments of Justice and Homeland Security issued the interim final rule
entitled, “Asylum Eligibility and Procedural Modifications,” 84 Fed. Reg. 33,829 (July 16, 2019).
I am the custodian of the signed interim final rule at DHS and of a copy of the
administrative record for the rule for DHS. I certify that, to the best of my knowledge, information,
and belief, the attached index was developed by the personnel who developed the interim final rule
and contains all non-privileged documents considered by DHS, and that these documents
constitute the administrative record the agency considered in issuing the rule.
Executed this 19th day of July, 2019 in Washington, D.C.

_______________________
Christina Bobb
Executive Secretary
Case 3:19-cv-04073-JST Document 29-1 Filed 07/19/19 Page 10 of 185
55934 Federal Register / Vol. 83, No. 218 / Friday, November 9, 2018 / Rules and Regulations

DEPARTMENT OF HOMELAND process for aliens who are subject to this explain the reason for any
SECURITY specific bar to asylum eligibility. DOJ is recommended change; and include data,
amending its regulations with respect to information, or authority that supports
8 CFR Part 208 such aliens. The regulations would the recommended change.
ensure that aliens in this category who All comments submitted for this
RIN 1615–AC34
establish a reasonable fear of rulemaking should include the agency
DEPARTMENT OF JUSTICE persecution or torture could seek name and EOIR Docket No. 18–0501.
withholding of removal under the INA Please note that all comments received
Executive Office for Immigration or protection from removal under are considered part of the public record
Review regulations implementing U.S. and made available for public
obligations under Article 3 of the inspection at www.regulations.gov. Such
8 CFR Parts 1003 and 1208 Convention Against Torture and Other information includes personally
Cruel, Inhuman or Degrading Treatment identifiable information (such as a
[EOIR Docket No. 18–0501; A.G. Order No. person’s name, address, or any other
or Punishment (‘‘CAT’’).
4327–2018] data that might personally identify that
DATES:
RIN 1125–AA89 Effective date: This rule is effective individual) that the commenter
November 9, 2018. voluntarily submits.
Aliens Subject to a Bar on Entry Under Submission of public comments: If you want to submit personally
Certain Presidential Proclamations; Written or electronic comments must be identifiable information as part of your
Procedures for Protection Claims submitted on or before January 8, 2019. comment, but do not want it to be
Written comments postmarked on or posted online, you must include the
AGENCY: U.S. Citizenship and phrase ‘‘PERSONALLY IDENTIFIABLE
Immigration Services, Department of before that date will be considered
timely. The electronic Federal Docket INFORMATION’’ in the first paragraph
Homeland Security; Executive Office for of your comment and precisely and
Immigration Review, Department of Management System will accept
comments prior to midnight eastern prominently identify the information of
Justice. which you seek redaction.
ACTION: Interim final rule; request for
standard time at the end of that day.
If you want to submit confidential
comment. ADDRESSES: You may submit comments, business information as part of your
identified by EOIR Docket No. 18–0501, comment, but do not want it to be
SUMMARY: The Department of Justice and by one of the following methods: posted online, you must include the
the Department of Homeland Security • Federal eRulemaking Portal: http:// phrase ‘‘CONFIDENTIAL BUSINESS
(‘‘DOJ,’’ ‘‘DHS,’’ or, collectively, ‘‘the www.regulations.gov. Follow the INFORMATION’’ in the first paragraph
Departments’’) are adopting an interim instructions for submitting comments. of your comment and precisely and
final rule governing asylum claims in • Mail: Lauren Alder Reid, Assistant prominently identify the confidential
the context of aliens who are subject to, Director, Office of Policy, Executive business information of which you seek
but contravene, a suspension or Office for Immigration Review, 5107 redaction. If a comment has so much
limitation on entry into the United Leesburg Pike, Suite 2616, Falls Church, confidential business information that it
States through the southern border with VA 22041. To ensure proper handling, cannot be effectively redacted, all or
Mexico that is imposed by a presidential please reference EOIR Docket No. 18– part of that comment may not be posted
proclamation or other presidential order 0501 on your correspondence. This on www.regulations.gov. Personally
(‘‘a proclamation’’) under section 212(f) mailing address may be used for paper, identifiable information and
or 215(a)(1) of the Immigration and disk, or CD–ROM submissions. confidential business information
Nationality Act (‘‘INA’’). Pursuant to • Hand Delivery/Courier: Lauren provided as set forth above will be
statutory authority, the Departments are Alder Reid, Assistant Director, Office of placed in the public docket file of DOJ’s
amending their respective existing Policy, Executive Office for Immigration Executive Office of Immigration Review
regulations to provide that aliens subject Review, 5107 Leesburg Pike, Suite 2616, (‘‘EOIR’’), but not posted online. To
to such a proclamation concerning the Falls Church, VA 22041, Contact inspect the public docket file in person,
southern border, but who contravene Telephone Number (703) 305–0289 (not you must make an appointment with
such a proclamation by entering the a toll-free call). EOIR. Please see the FOR FURTHER
United States after the effective date of FOR FURTHER INFORMATION CONTACT: INFORMATION CONTACT paragraph above
such a proclamation, are ineligible for Lauren Alder Reid, Assistant Director, for the contact information specific to
asylum. The interim rule, if applied to Office of Policy, Executive Office for this rule.
a proclamation suspending the entry of Immigration Review, 5107 Leesburg
aliens who cross the southern border Pike, Suite 2616, Falls Church, VA II. Purpose of This Interim Final Rule
unlawfully, would bar such aliens from 22041, Contact Telephone Number (703) This interim final rule (‘‘interim rule’’
eligibility for asylum and thereby 305–0289 (not a toll-free call). or ‘‘rule’’) governs eligibility for asylum
channel inadmissible aliens to ports of SUPPLEMENTARY INFORMATION: and screening procedures for aliens
entry, where they would be processed in subject to a presidential proclamation or
a controlled, orderly, and lawful I. Public Participation order restricting entry issued pursuant
manner. This rule would apply only Interested persons are invited to to section 212(f) of the INA, 8 U.S.C.
prospectively to a proclamation issued participate in this rulemaking by 1182(f), or section 215(a)(1) of the INA,
after the effective date of this rule. It submitting written data, views, or 8 U.S.C. 1185(a)(1), that concerns entry

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would not apply to a proclamation that arguments on all aspects of this rule. to the United States along the southern
specifically includes an exception for The Departments also invite comments border with Mexico and is issued on or
aliens applying for asylum, nor would it that relate to the economic or federalism after the effective date of this rule.
apply to aliens subject to a waiver or effects that might result from this rule. Pursuant to statutory authority, the
exception provided by the To provide the most assistance to the interim rule renders such aliens
proclamation. DHS is amending its Departments, comments should ineligible for asylum if they enter the
regulations to specify a screening reference a specific portion of the rule; United States after the effective date of

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such a proclamation, become subject to have established a ‘‘credible fear’’— cases where the asylum claim was
the proclamation, and enter the United meaning a ‘‘significant possibility . . . adjudicated on the merits) established
States in violation of the suspension or that the alien could establish eligibility that they should be granted asylum.
limitation of entry established by the for asylum’’ under the asylum statute— Apprehending and processing this
proclamation. The interim rule, if would be detained for further growing number of aliens who cross
applied to a proclamation suspending consideration of an asylum claim. See illegally into the United States and
the entry of aliens who cross the INA 235(b)(1), (b)(1)(B)(v), 8 U.S.C. invoke asylum procedures thus
southern border unlawfully, would bar 1225(b)(1), (b)(1)(B)(v). consumes an ever increasing amount of
such aliens from eligibility for asylum When the expedited procedures were resources of DHS, which must surveil,
and thereby channel inadmissible aliens first implemented approximately two apprehend, and process the aliens who
to ports of entry, where such aliens decades ago, relatively few aliens within enter the country. Congress has also
could seek to enter and would be those proceedings asserted an intent to required DHS to detain all aliens during
processed in an orderly and controlled apply for asylum or a fear of the pendency of their credible-fear
manner. Aliens who enter prior to the persecution. Rather, most aliens found proceedings, which can take days or
effective date of an applicable inadmissible at the southern border weeks. And DOJ must also dedicate
proclamation will not be subject to this were single adults who were substantial resources: Its immigration
asylum eligibility bar unless they depart immediately repatriated to Mexico. judges adjudicate aliens’ claims, and its
and reenter while the proclamation Thus, while the overall number of officials are responsible for prosecuting
remains in effect. Aliens also will not be illegal aliens apprehended was far and maintaining custody over those
subject to this eligibility bar if they fall higher than it is today (around 1.6 who violate the criminal law. The
within an exception or waiver within million in 2000), aliens could be strains on the Departments are
the proclamation that makes the processed and removed more quickly, particularly acute with respect to the
suspension or limitation of entry in the without requiring detention or lengthy rising numbers of family units, who
proclamation inapplicable to them, or if court proceedings. generally cannot be detained if they are
the proclamation provides that it does In recent years, the United States has found to have a credible fear, due to a
not affect eligibility for asylum. seen a large increase in the number and
combination of resource constraints and
As discussed further below, asylum is proportion of inadmissible aliens
the manner in which the terms of the
a discretionary immigration benefit. In subject to expedited removal who assert
Settlement Agreement in Flores v. Reno
general, aliens may apply for asylum if an intent to apply for asylum or a fear
have been interpreted by courts. See
they are physically present or arrive in of persecution during that process and
Stipulated Settlement Agreement, Flores
the United States, irrespective of their are subsequently placed into removal
v. Reno, No. 85–cv–4544 (N.D. Cal. Jan.
status and irrespective of whether or not proceedings in immigration court. Most
17, 1997).
they arrive at a port of entry, as of those aliens unlawfully enter the
country between ports of entry along the In recent weeks, United States
provided in section 208(a) of the INA,
southern border. Over the past decade, officials have each day encountered an
8 U.S.C. 1158(a). Congress, however,
provided that certain categories of aliens the overall percentage of aliens subject average of approximately 2,000
could not receive asylum and further to expedited removal and referred, as inadmissible aliens at the southern
delegated to the Attorney General and part of the initial screening process, for border. At the same time, large caravans
the Secretary of Homeland Security a credible-fear interview jumped from of thousands of aliens, primarily from
(‘‘Secretary’’) the authority to approximately 5% to above 40%, and Central America, are attempting to make
promulgate regulations establishing the total number of credible-fear their way to the United States, with the
additional bars on eligibility that are referrals for interviews increased from apparent intent of seeking asylum after
consistent with the asylum statute and about 5,000 a year in Fiscal Year (‘‘FY’’) entering the United States unlawfully or
‘‘any other conditions or limitations on 2008 to about 97,000 in FY 2018. without proper documentation. Central
the consideration of an application for Furthermore, the percentage of cases in American nationals represent a majority
asylum’’ that are consistent with the which asylum officers found that the of aliens who enter the United States
INA. See INA 208(b)(2)(C), (d)(5)(B), 8 alien had established a credible fear— unlawfully, and are also
U.S.C. 1158(b)(2)(C), (d)(5)(B). leading to the alien’s placement in full disproportionately likely to choose to
In the Illegal Immigration Reform and immigration proceedings under section enter illegally between ports of entry
Immigration Responsibility Act of 1996 240 of the INA, 8 U.S.C. 1229a—has also rather than presenting themselves at a
(‘‘IIRIRA’’), Public Law 104–208, increased in recent years. In FY 2008, port of entry. As discussed below, aliens
Congress, concerned with rampant when asylum officers resolved a referred who enter unlawfully between ports of
delays in proceedings to remove illegal case with a credible-fear determination, entry along the southern border, as
aliens, created expedited procedures for they made a positive finding about 77% opposed to at a port of entry, pose a
removing inadmissible aliens, and of the time. That percentage rose to 80% greater strain on DHS’s already
authorized the extension of such by FY 2014. In FY 2018, that percentage stretched detention and processing
procedures to aliens who entered of positive credible-fear determinations resources and also engage in conduct
illegally and were apprehended within has climbed to about 89% of all cases. that seriously endangers themselves,
two years of their entry. See generally After this initial screening process, any children traveling with them, and
INA 235(b), 8 U.S.C. 1225(b). Those however, significant proportions of the U.S. Customs and Border Protection
procedures were aimed at facilitating aliens who receive a positive credible- (‘‘CBP’’) agents who seek to apprehend
the swift removal of inadmissible aliens, fear determination never file an them.

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including those who had entered application for asylum or are ordered The United States has been engaged
illegally, while also expeditiously removed in absentia. In FY 2018, a total in sustained diplomatic negotiations
resolving any asylum claims. For of about 6,000 aliens who passed with Mexico and the Northern Triangle
instance, Congress provided that any through credible-fear screening (17% of countries (Honduras, El Salvador, and
alien who asserted a fear of persecution all completed cases, 27% of all Guatemala) regarding the situation on
would appear before an asylum officer, completed cases in which an asylum the southern border, but those
and that any alien who is determined to application was filed, and about 36% of negotiations have, to date, proved

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unable to meaningfully improve the respective authorities concerning other benefits, such as allowing certain
situation. asylum determinations. alien family members to obtain lawful
The purpose of this rule is to limit The Homeland Security Act of 2002, immigration status derivatively. See
aliens’ eligibility for asylum if they Public Law 107–296, as amended, R–S–C v. Sessions, 869 F.3d 1176, 1180
enter in contravention of a proclamation transferred many functions related to (10th Cir. 2017); see also, e.g., INA
suspending or restricting their entry the execution of federal immigration 208(c)(1)(A), (C), 8 U.S.C. 1158(c)(1)(A),
along the southern border. Such aliens law to the newly created Department of (C) (asylees cannot be removed and can
would contravene a measure that the Homeland Security. The Homeland travel abroad with prior consent); INA
President has determined to be in the Security Act of 2002 charges the 208(b)(3), 8 U.S.C. 1158(b)(3) (allowing
national interest. For instance, a Secretary ‘‘with the administration and derivative asylum for asylee’s spouse
proclamation restricting the entry of enforcement of this chapter and all and unmarried children); INA 209(b), 8
inadmissible aliens who enter other laws relating to the immigration U.S.C. 1159(b) (allowing the Attorney
unlawfully between ports of entry and naturalization of aliens,’’ 8 U.S.C. General or Secretary to adjust the status
would reflect a determination that this 1103(a)(1), and grants the Secretary the of an asylee to that of a lawful
particular category of aliens necessitates power to take all actions ‘‘necessary for permanent resident); INA 316(a), 8
a response that would supplement carrying out’’ the provisions of the INA, U.S.C. 1427(a) (describing requirements
existing prohibitions on entry for all id. 1103(a)(3). The Homeland Security for naturalization of lawful permanent
inadmissible aliens. Such a Act of 2002 also transferred to DHS residents). Aliens who are granted
proclamation would encourage such some responsibility for affirmative asylum are authorized to work in the
aliens to seek admission and indicate an asylum applications, i.e., applications United States and may receive certain
intention to apply for asylum at ports of for asylum made outside the removal financial assistance from the federal
entry. Aliens who enter in violation of context. See 6 U.S.C. 271(b)(3). Those government. See INA 208(c)(1)(B),
that proclamation would not be eligible authorities have been delegated to U.S. (d)(2), 8 U.S.C. 1158(c)(1)(B), (d)(2); 8
for asylum. They would, however, Citizenship and Immigration Services U.S.C. 1612(a)(2)(A), (b)(2)(A); 8 U.S.C.
remain eligible for statutory (‘‘USCIS’’). USCIS asylum officers 1613(b)(1); 8 CFR 274a.12(a)(5); see also
withholding of removal under section determine in the first instance whether 8 CFR 274a.12(c)(8) (providing that
241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), an alien’s affirmative asylum asylum applicants may seek
or for protections under the regulations application should be granted. See 8 employment authorization 150 days
issued under the authority of the CFR 208.9. after filing a complete application for
implementing legislation regarding But the Homeland Security Act of asylum).
Article 3 of the CAT. 2002 retained authority over certain Aliens applying for asylum must
The Departments anticipate that a individual immigration adjudications establish that they meet the definition of
large number of aliens who would be (including those related to defensive a ‘‘refugee,’’ that they are not subject to
subject to a proclamation-based asylum applications) in DOJ, under the a bar to the granting of asylum, and that
ineligibility bar would be subject to Executive Office for Immigration they merit a favorable exercise of
expedited-removal proceedings. Review (‘‘EOIR’’) and subject to the discretion. INA 208(b)(1), 240(c)(4)(A), 8
Accordingly, this rule ensures that direction and regulation of the Attorney U.S.C. 1158(b)(1), 1229a(c)(4)(A); see
asylum officers and immigration judges General. See 6 U.S.C. 521; 8 U.S.C. Moncrieffe v. Holder, 569 U.S. 184, 187
account for such aliens’ ineligibility for 1103(g). Thus, immigration judges (2013) (describing asylum as a form of
asylum within the expedited-removal within DOJ continue to adjudicate all ‘‘discretionary relief from removal’’);
process, so that aliens subject to such a asylum applications made by aliens Delgado v. Mukasey, 508 F.3d 702, 705
bar will be processed swiftly. during the removal process (defensive (2d Cir. 2007) (‘‘Asylum is a
Furthermore, the rule continues to asylum applications), and they also discretionary form of relief . . . . Once
afford protection from removal for review affirmative asylum applications an applicant has established eligibility
individuals who establish that they are referred by USCIS to the immigration . . . it remains within the Attorney
court. See INA 101(b)(4), 8 U.S.C. General’s discretion to deny asylum.’’).
more likely than not to be persecuted or
1101(b)(4); 8 CFR 1208.2; Dhakal v. Because asylum is a discretionary form
tortured in the country of removal.
Sessions, 895 F.3d 532, 536–37 (7th Cir. of relief from removal, the alien bears
Aliens rendered ineligible for asylum by
2018) (describing affirmative and the burden of showing both eligibility
this interim rule and who are referred
defensive asylum processes). The Board for asylum and why the Attorney
for an interview in the expedited-
of Immigration Appeals (‘‘BIA’’ or General or Secretary should exercise
removal process are still eligible to seek
‘‘Board’’), also within DOJ, in turn hears discretion to grant relief. See INA
withholding of removal under section
appeals from immigration judges’ 208(b)(1), 240(c)(4)(A), 8 U.S.C.
241(b)(3) of the INA, 8 U.S.C. 1231(b)(3),
decisions. 8 CFR 1003.1. In addition, the 1158(b)(1), 1229a(c)(4)(A); Romilus v.
or protections under the regulations
INA provides ‘‘[t]hat determination and Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004).
issued under the authority of the Section 208 of the INA provides that,
ruling by the Attorney General with
implementing legislation regarding in order to apply for asylum, an
respect to all questions of law shall be
Article 3 of the CAT. Such aliens could applicant must be ‘‘physically present’’
controlling.’’ INA 103(a)(1), 8 U.S.C.
pursue such claims in proceedings or ‘‘arriv[e]’’ in the United States,
1103(a)(1). This broad division of
before an immigration judge under ‘‘whether or not at a designated port of
functions and authorities informs the
section 240 of the INA, 8 U.S.C. 1229a, arrival’’ and ‘‘irrespective of such alien’s
background of this interim rule.
if they establish a reasonable fear of status’’—but the applicant must also

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persecution or torture. B. Legal Framework for Asylum ‘‘apply for asylum in accordance with’’
III. Background Asylum is a form of discretionary the rest of section 208 or with the
relief under section 208 of the INA, 8 expedited-removal process in section
A. Joint Interim Rule U.S.C. 1158, that precludes an alien 235 of the INA. INA 208(a)(1), 8 U.S.C.
The Attorney General and the from being subject to removal, creates a 1158(a)(1). Furthermore, to be granted
Secretary of Homeland Security publish path to lawful permanent resident status asylum, the alien must demonstrate that
this joint interim rule pursuant to their and citizenship, and affords a variety of he or she meets the statutory definition

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of a ‘‘refugee,’’ INA 208(b)(1)(A), 8 2007) (applying 8 CFR 1240.8(d) in the In the 1980 implementing regulations,
U.S.C. 1158(b)(1)(A), and is not subject context of the persecutor bar); Chen v. the Attorney General, in his discretion,
to an exception or bar, INA 208(b)(2), 8 U.S. Att’y Gen., 513 F.3d 1255, 1257 established several mandatory bars to
U.S.C. 1158(b)(2). The alien bears the (11th Cir. 2008) (same). granting asylum that were modeled on
burden of proof to establish that he or Because asylum is a discretionary the mandatory bars to eligibility for
she meets these criteria. INA benefit, aliens who are eligible for withholding of deportation under the
208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i); asylum are not automatically entitled to existing section 243(h) of the INA. See
8 CFR 1240.8(d). it. After demonstrating eligibility, aliens Refugee and Asylum Procedures, 45 FR
For an alien to establish that he or she must further meet their burden of 37392, 37392 (June 2, 1980) (‘‘The
is a ‘‘refugee,’’ the alien generally must showing that the Attorney General or application will be denied if the alien
be someone who is outside of his or her Secretary should exercise his or her does not come within the definition of
country of nationality and ‘‘is unable or discretion to grant asylum. See INA refugee under the Act, is firmly resettled
unwilling to return to . . . that country 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) (the in a third country, or is within one of
because of persecution or a well- ‘‘Secretary of Homeland Security or the the undesirable groups described in
founded fear of persecution on account Attorney General may grant asylum to section 243(h) of the Act, e.g., having
of race, religion, nationality, an alien’’ who applies in accordance been convicted of a serious crime,
membership in a particular social group, with the required procedures and meets constitutes a danger to the United
or political opinion.’’ INA 101(a)(42)(A), the definition of a ‘‘refugee’’). The States.’’). Those regulations required
8 U.S.C. 1101(a)(42)(A). asylum statute’s grant of discretion ‘‘is denial of an asylum application if it was
In addition, if evidence indicates that a broad delegation of power, which determined that (1) the alien was ‘‘not
one or more of the grounds for restricts the Attorney General’s a refugee within the meaning of section
mandatory denial may apply, an alien discretion to grant asylum only by 101(a)(42)’’ of the INA, 8 U.S.C.
must show that he or she does not fit requiring the Attorney General to first 1101(a)(42); (2) the alien had been
within one of the statutory bars to determine that the asylum applicant is ‘‘firmly resettled in a foreign country’’
granting asylum and is not subject to a ‘refugee.’’’ Komarenko v. INS, 35 F.3d before arriving in the United States; (3)
any ‘‘additional limitations and 432, 436 (9th Cir. 1994), overruled on the alien ‘‘ordered, incited, assisted, or
conditions . . . under which an alien other grounds by Abebe v. Mukasey, 554 otherwise participated in the
shall be ineligible for asylum’’ F.3d 1203 (9th Cir. 2009) (en banc) (per persecution of any person on account of
established by a regulation that is curiam). Immigration judges and asylum race, religion, nationality, membership
‘‘consistent with’’ section 208 of the officers exercise that delegated in a particular group, or political
INA. INA 208(b)(2)(C), 8 U.S.C. discretion on a case-by-case basis. opinion’’; (4) the alien had ‘‘been
1158(b)(2)(C); see 8 CFR 1240.8(d). The Under the Board’s decision in Matter of convicted by a final judgment of a
INA currently bars a grant of asylum to Pula, 19 I&N Dec. 467 (BIA 1987), and particularly serious crime’’ and
any alien: (1) Who ‘‘ordered, incited, its progeny, ‘‘an alien’s manner of entry therefore constituted ‘‘a danger to the
assisted, or otherwise participated in the or attempted entry is a proper and community of the United States’’; (5)
persecution of any person on account relevant discretionary factor’’ and there were ‘‘serious reasons for
of’’ a protected ground; (2) who, ‘‘having ‘‘circumvention of orderly refugee considering that the alien ha[d]
been convicted by a final judgment of a procedures’’ can be a ‘‘serious adverse committed a serious non-political crime
particularly serious crime, constitutes a factor’’ against exercising discretion to outside the United States prior to the
danger to the community of the United grant asylum, id. at 473, but ‘‘[t]he
arrival of the alien in the United States’’;
States’’; (3) for whom there are serious danger of persecution will outweigh all
or (6) there were ‘‘reasonable grounds
reasons to believe the alien ‘‘has but the most egregious adverse factors,’’
committed a serious nonpolitical crime for regarding the alien as a danger to the
Matter of Kasinga, 21 I&N Dec. 357, 367
outside the United States’’ prior to security of the United States.’’ See id. at
(BIA 1996).
arrival in the United States; (4) for 37394–95.
whom ‘‘there are reasonable grounds for C. Establishing Bars to Asylum In 1990, the Attorney General
regarding the alien as a danger to the The availability of asylum has long substantially amended the asylum
security of the United States’’; (5) who been qualified both by statutory bars regulations while retaining the
is described in the terrorism-related and by administrative discretion to mandatory bars for aliens who
inadmissibility grounds, with limited create additional bars. Those bars have persecuted others on account of a
exceptions; or (6) who ‘‘was firmly developed over time in a back-and-forth protected ground, were convicted of a
resettled in another country prior to process between Congress and the particularly serious crime in the United
arriving in the United States.’’ INA Attorney General. The original asylum States, firmly resettled in another
208(b)(2)(A)(i)–(vi), 8 U.S.C. provisions, as set out in the Refugee Act country, or presented reasonable
1158(b)(2)(A)(i)–(vi). of 1980, Public Law 96–212, simply grounds to be regarded as a danger to
An alien who falls within any of those directed the Attorney General to the security of the United States. See
bars is subject to mandatory denial of ‘‘establish a procedure for an alien Asylum and Withholding of Deportation
asylum. Where there is evidence that physically present in the United States Procedures, 55 FR 30674, 30683 (July
‘‘one or more of the grounds for or at a land border or port of entry, 27, 1990); see also Yang v. INS, 79 F.3d
mandatory denial of the application for irrespective of such alien’s status, to 932, 936–39 (9th Cir. 1996) (upholding
relief may apply,’’ the applicant in apply for asylum, and the alien may be firm-resettlement bar); Komarenko, 35
immigration court proceedings bears the granted asylum in the discretion of the F.3d at 436 (upholding particularly-

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burden of establishing that the bar at Attorney General if the Attorney serious-crime bar). In the Immigration
issue does not apply. 8 CFR 1240.8(d); General determines that such alien is a Act of 1990, Public Law 101–649,
see also, e.g., Rendon v. Mukasey, 520 refugee’’ within the meaning of the title. Congress added an additional
F.3d 967, 973 (9th Cir. 2008) (applying See 8 U.S.C. 1158(a) (1982); see also INS mandatory bar to applying for or being
8 CFR 1240.8(d) in the context of the v. Cardoza-Fonseca, 480 U.S. 421, granted asylum for ‘‘[a]n[y] alien who
aggravated felony bar to asylum); Gao v. 427–29 (1987) (describing the 1980 has been convicted of an aggravated
U.S. Att’y Gen., 500 F.3d 93, 98 (2d Cir. provisions). felony.’’ Public Law 101–649, sec. 515.

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In IIRIRA and the Antiterrorism and identify additional particularly serious by regulation for any other conditions or
Effective Death Penalty Act of 1996, crimes (beyond aggravated felonies) limitations on the consideration of an
Public Law 104–132, Congress amended through case-by-case adjudication. See, application for asylum,’’ so long as
the asylum provisions in section 208 of e.g., Ali v. Achim, 468 F.3d 462, 468– those limitations are ‘‘not inconsistent
the INA, 8 U.S.C. 1158. Among other 69 (7th Cir. 2006); Delgado v. Holder, with this chapter.’’ INA 208(d)(5)(B), 8
amendments, Congress created three 648 F.3d 1095, 1106 (9th Cir. 2011) (en U.S.C. 1158(d)(5)(B).
exceptions to section 208(a)(1)’s banc). Congress likewise authorized the In sum, the current statutory
provision that an alien may apply for Attorney General to designate by framework leaves the Attorney General
asylum, for (1) aliens who can be regulation offenses that constitute ‘‘a (and, after the Homeland Security Act,
removed to a safe third country serious nonpolitical crime outside the the Secretary) significant discretion to
pursuant to bilateral or multilateral United States prior to the arrival of the adopt additional bars to asylum
agreement; (2) aliens who failed to alien in the United States.’’ INA eligibility. Beyond providing discretion
apply for asylum within one year of 208(b)(2)(A)(iii), (B)(ii), 8 U.S.C. to further define particularly serious
arriving in the United States; and (3) 1158(b)(2)(A)(iii), (B)(ii). Although these crimes and serious nonpolitical
aliens who have previously applied for provisions continue to refer only to the offenses, Congress has provided the
asylum and had the application denied. Attorney General, the Departments Attorney General and Secretary with
Public Law 104–208, div. C, sec. 604(a); interpret these provisions to also apply discretion to establish by regulation any
see INA 208(a)(2)(A)–(C), 8 U.S.C. to the Secretary of Homeland Security additional limitations or conditions on
1158(a)(2)(A)–(C). by operation of the Homeland Security eligibility for asylum or on the
Congress also adopted six mandatory Act of 2002. See 6 U.S.C. 552; 8 U.S.C. consideration of applications for
exceptions to the authority of the 1103(a)(1). asylum, so long as these limitations are
Attorney General or Secretary to grant Congress further provided the consistent with the asylum statute.
asylum that largely reflect pre-existing Attorney General with the authority, by
D. Other Forms of Protection
bars set forth in the Attorney General’s regulation, to ‘‘establish additional
asylum regulations. These exceptions limitations and conditions, consistent Aliens who are not eligible to apply
cover (1) aliens who ‘‘ordered, incited, with [section 208 of the INA], under for or be granted asylum, or who are
or otherwise participated’’ in the which an alien shall be ineligible for denied asylum on the basis of the
persecution of others on account of a asylum under paragraph (1).’’ INA Attorney General’s or the Secretary’s
protected ground; (2) aliens convicted of 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). As discretion, may nonetheless qualify for
a ‘‘particularly serious crime’’; (3) aliens the Tenth Circuit has recognized, ‘‘the protection from removal under other
who committed a ‘‘serious nonpolitical statute clearly empowers’’ the Attorney provisions of the immigration laws. A
crime outside the United States’’ before General to ‘‘adopt[] further limitations’’ defensive application for asylum that is
arriving in the United States; (4) aliens on asylum eligibility. R–S–C, 869 F.3d at submitted by an alien in removal
who are a ‘‘danger to the security of the 1187 & n.9. By allowing the imposition proceedings is also deemed an
United States’’; (5) aliens who are by regulation of ‘‘additional limitations application for statutory withholding of
inadmissible or removable under a set of and conditions,’’ the statute gives the removal under section 241(b)(3) of the
specified grounds relating to terrorist Attorney General and the Secretary INA, 8 U.S.C. 1231(b)(3). See 8 CFR
activity; and (6) aliens who have ‘‘firmly broad authority in determining what the 208.30(e)(2)–(4), 1208.3(b), 1208.16(a).
resettled in another country prior to ‘‘limitations and conditions’’ should be. An immigration judge may also consider
arriving in the United States.’’ Public The additional limitations on eligibility an alien’s eligibility for withholding and
Law 104–208, div. C, sec. 604(a); see must be established ‘‘by regulation,’’ deferral of removal under regulations
INA 208(b)(2)(A)(i)–(vi), 8 U.S.C. and must be ‘‘consistent with’’ the rest issued pursuant to the authority of the
1158(b)(2)(A)(i)–(vi). Congress further of section 208 of the INA. INA implementing legislation regarding
added that aggravated felonies, defined 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). Article 3 of the CAT. See Foreign Affairs
in 8 U.S.C. 1101(a)(43), would be Thus, the Attorney General in the past Reform and Restructuring Act of 1998,
considered ‘‘particularly serious has invoked section 208(b)(2)(C) of the Public Law 105–277, div. G, sec.
crime[s].’’ Public Law 104–208, div. C, INA to limit eligibility for asylum based 2242(b); 8 CFR 1208.3(b); see also 8 CFR
sec. 604(a); see INA 201(a)(43), 8 U.S.C. on a ‘‘fundamental change in 1208.16–1208.17.
1101(a)(43). circumstances’’ and on the ability of an These forms of protection bar an
Although Congress enacted specific applicant to safely relocate internally alien’s removal to any country where
exceptions, that statutory list is not within the alien’s country of nationality the alien would ‘‘more likely than not’’
exhaustive. Congress, in IIRIRA, or of last habitual residence. See face persecution or torture, meaning that
expressly authorized the Attorney Asylum Procedures, 65 FR 76121, 76126 the alien would face a clear probability
General to expand upon two of those (Dec. 6, 2000). The courts have also that his or her life or freedom would be
exceptions—the bars for ‘‘particularly viewed section 208(b)(2)(C) as threatened on account of a protected
serious crimes’’ and ‘‘serious conferring broad discretion, including to ground or a clear probability of torture.
nonpolitical offenses.’’ While Congress render aliens ineligible for asylum based 8 CFR 1208.16(b)(2), (c)(2); see
prescribed that all aggravated felonies on fraud. See R–S–C, 869 F.3d at 1187; Kouljinski v. Keisler, 505 F.3d 534, 544–
constitute particularly serious crimes, Nijjar v. Holder, 689 F.3d 1077, 1082 45 (6th Cir. 2007); Sulaiman v.
Congress further provided that the (9th Cir. 2012) (noting that fraud can be Gonzales, 429 F.3d 347, 351 (1st Cir.
Attorney General may ‘‘designate by ‘‘one of the ‘additional limitations . . . 2005). Thus, if an alien proves that it is
regulation offenses that will be under which an alien shall be ineligible more likely than not that the alien’s life

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considered’’ a ‘‘particularly serious for asylum’ that the Attorney General is or freedom would be threatened on
crime’’ that ‘‘constitutes a danger to the authorized to establish by regulation’’). account of a protected ground, but is
community of the United States.’’ INA Section 208(d)(5) of the INA, 8 U.S.C. denied asylum for some other reason—
208(b)(2)(A)(ii), (B)(ii), 8 U.S.C. 1158(d)(5), also establishes certain for instance, because of a statutory
1158(b)(2)(A)(ii), (B)(ii). Courts and the procedures for consideration of asylum exception, an eligibility bar adopted by
Board have long held that this grant of applications. But Congress specified regulation, or a discretionary denial of
authority also authorizes the Board to that the Attorney General ‘‘may provide asylum—the alien may be entitled to

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statutory withholding of removal if not consistent with these provisions. See R– the United States in contravention of
otherwise barred for that form of S–C, 869 F.3d at 1188 & n.11; Cazun v. such a proclamation after the effective
protection. INA 241(b)(3), 8 U.S.C. Att’y Gen., 856 F.3d 249, 257 & n.16 (3d date of this rule. The bar would be
1231(b)(3); 8 CFR 208.16, 1208.16; see Cir. 2017); Ramirez-Mejia v. Lynch, 813 subject to several further limitations: (1)
also Garcia v. Sessions, 856 F.3d 27, 40 F.3d 240, 241 (5th Cir. 2016). The bar would apply only
(1st Cir. 2017) (‘‘[W]ithholding of Limitations on eligibility for asylum prospectively, to aliens who enter the
removal has long been understood to be are also consistent with Article 34 of the United States after the effective date of
a mandatory protection that must be Refugee Convention, concerning such a proclamation; (2) the
given to certain qualifying aliens, while assimilation of refugees, as proclamation must concern entry at the
asylum has never been so understood.’’). implemented by section 208 of the INA, southern border; and (3) the bar on
Likewise, an alien who establishes that 8 U.S.C. 1158. Section 208 of the INA asylum eligibility would not apply if the
he or she will more likely than not face reflects that Article 34 is precatory and proclamation expressly disclaims
torture in the country of removal will not mandatory, and accordingly does affecting asylum eligibility for aliens
qualify for CAT protection. See 8 CFR not provide that all refugees shall within its scope, or expressly provides
208.16(c), 1208.16(c). But, unlike receive asylum. See Cardoza-Fonseca, for a waiver or exception that entitles
asylum, statutory withholding and CAT 480 U.S. at 441; Garcia, 856 F.3d at 42; the alien to relief from the limitation on
protection do not: (1) Prohibit the Cazun, 856 F.3d at 257 & n. 16; Mejia entry imposed by the proclamation.
Government from removing the alien to v. Sessions, 866 F.3d 573, 588 (4th Cir. The President has both statutory and
a third country where the alien would 2017); R–S–C, 869 F.3d at 1188; inherent constitutional authority to
not face the requisite probability of Ramirez-Mejia, 813 F.3d at 241. As suspend the entry of aliens into the
persecution or torture; (2) create a path noted above, Congress has long United States when it is in the national
to lawful permanent resident status and recognized the precatory nature of interest. See United States ex rel. Knauff
citizenship; or (3) afford the same Article 34 by imposing various statutory v. Shaughnessy, 338 U.S. 537, 542
ancillary benefits (such as protection for exceptions and by authorizing the (1950) (‘‘The exclusion of aliens is a
derivative family members). See R–S–C, creation of new bars to asylum fundamental act of sovereignty’’ that
869 F.3d at 1180. eligibility through regulation. derives from ‘‘legislative power’’ and
Courts have likewise rejected also ‘‘is inherent in the executive power
E. Implementation of Treaty Obligations to control the foreign affairs of the
arguments that other provisions of the
The framework described above is Refugee Convention require every nation.’’); see also Proposed Interdiction
consistent with certain U.S. obligations refugee to receive asylum. Courts have of Haitian Flag Vessels, 5 Op. O.L.C.
under the 1967 Protocol Relating to the held, in the context of upholding the bar 242, 244–45 (1981) (‘‘[T]he sovereignty
Status of Refugees (‘‘Refugee Protocol’’), on eligibility for asylum in of the Nation, which is the basis of our
which incorporates Articles 2 to 34 of reinstatement proceedings under section ability to exclude all aliens, is lodged in
the 1951 Convention Relating to the 241(a)(5) of the INA, 8 U.S.C. 1231(a)(5), both political branches of the
Status of Refugees (‘‘Refugee that limiting the ability to apply for government,’’ and even without
Convention’’), as well as U.S. asylum does not constitute a prohibited congressional action, the President may
obligations under Article 3 of the CAT. ‘‘penalty’’ under Article 31(1) of the ‘‘act[ ] to protect the United States from
Neither the Refugee Protocol nor the Refugee Convention. Cazun, 856 F.3d at massive illegal immigration.’’).
CAT is self-executing in the United 257 & n.16; Mejia, 866 F.3d at 588. Congress, in the INA, has expressly
States. See Khan v. Holder, 584 F.3d Courts have also rejected the argument vested the President with broad
773, 783 (9th Cir. 2009) (‘[T]he [Refugee] that Article 28 of the Refugee authority to restrict the ability of aliens
Protocol is not self-executing.’’); Convention, governing the issuance of to enter the United States. Section 212(f)
Auguste v. Ridge, 395 F.3d 123, 132 (3d international travel documents for states: ‘‘Whenever the President finds
Cir. 2005) (the CAT ‘‘was not self- that the entry of any aliens or of any
refugees ‘‘lawfully staying’’ in a
executing’’). These treaties are not class of aliens into the United States
country’s territory, mandates that every
directly enforceable in U.S. law, but would be detrimental to the interests of
person who might qualify for statutory
some of the obligations they contain the United States, he may by
withholding must also be granted
have been implemented through proclamation, and for such period as he
asylum. Garcia, 856 F.3d at 42; R–S–C,
domestic implementing legislation. For shall deem necessary, suspend the entry
869 F.3d at 1188.
example, the United States has of all aliens or any class of aliens as
implemented the non-refoulement IV. Regulatory Changes immigrants or nonimmigrants, or
provisions of these treaties—i.e., impose on the entry of aliens any
A. Limitation on Eligibility for Asylum
provisions prohibiting the return of an restrictions he may deem to be
individual to a country where he or she for Aliens Who Contravene a
appropriate.’’ 8 U.S.C. 1182(f). ‘‘By its
would face persecution or torture— Presidential Proclamation Under
plain language, [8 U.S.C.] § 1182(f)
through the withholding of removal Section 212(f) or 215(a)(1) of the INA grants the President broad discretion to
provisions at section 241(b)(3) of the Concerning the Southern Border suspend the entry of aliens into the
INA and the CAT regulations, not Pursuant to section 208(b)(2)(C) of the United States,’’ including the authority
through the asylum provisions at INA, 8 U.S.C. 1158(b)(2)(C), the ‘‘to impose additional limitations on
section 208 of the INA. See Cardoza- Departments are revising 8 CFR entry beyond the grounds for exclusion
Fonseca, 480 U.S. at 440–41; Foreign 208.13(c) and 8 CFR 1208.13(c) to add set forth in the INA.’’ Trump v. Hawaii,
Affairs Reform and Restructuring Act of a new mandatory bar on eligibility for 138 S. Ct. 2392, 2408¥12 (2018). For

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1998, Public Law 105–277, div. G, sec. asylum for certain aliens who are instance, the Supreme Court considered
2242(b); 8 CFR 208.16(c), 208.17– subject to a presidential proclamation it ‘‘perfectly clear that 8 U.S.C. 1182(f)
208.18; 1208.16(c), 1208.17–1208.18. suspending or imposing limitations on . . . grants the President ample power
Limitations on the availability of asylum their entry into the United States to establish a naval blockade that would
that do not affect the statutory pursuant to section 212(f) of the INA, 8 simply deny illegal Haitian immigrants
withholding of removal or protection U.S.C. 1182(f), or section 215(a)(1) of the the ability to disembark on our shores,’’
under the CAT regulations are INA, 8 U.S.C. 1185(a)(1), and who enter thereby preventing them from entering

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the United States and applying for determination that the alien should not who contravene such proclamations
asylum. Sale v. Haitian Ctrs. Council, be in the United States, would remain should not be eligible for asylum. Such
Inc., 509 U.S. 155, 187 (1993). subject to various procedures under proclamations generally reflect sensitive
The President’s broad authority under immigration laws. For instance, an alien determinations regarding foreign
section 212(f) is buttressed by section subject to a proclamation who relations and national security that
215(a)(1), which states it shall be nevertheless entered the country in Congress recognized should be
unlawful ‘‘for any alien to depart from contravention of its terms generally entrusted to the President. See Trump v.
or enter or attempt to depart from or would be placed in expedited-removal Hawaii, 138 S. Ct. at 2411. Aliens who
enter the United States except under proceedings under section 235 of the contravene such a measure have not
such reasonable rules, regulations, and INA, 8 U.S.C. 1225, and those merely violated the immigration laws,
orders, and subject to such limitations proceedings would allow the alien to but have also undercut the efficacy of a
and exceptions as the President may raise any claims for protection before measure adopted by the President based
prescribe.’’ 8 U.S.C. 1185(a)(1). The being removed from the United States, upon his determination of the national
presidential orders that the Supreme if appropriate. Furthermore, the asylum interest in matters that could have
Court upheld in Sale were promulgated statute provides that ‘‘[a]ny alien who is significant implications for the foreign
pursuant to both sections 212(f) and physically present in the United States affairs of the United States. For instance,
215(a)(1)—see 509 U.S. at 172 & n.27; or who arrives in the United States previous proclamations were directed
see also Exec. Order 12807 (May 24, (whether or not at a designated port of solely at Haitian migrants, nearly all of
1992) (‘‘Interdiction of Illegal Aliens’’); arrival),’’ and ‘‘irrespective of such whom were already inadmissible by
Exec. Order 12324 (Sept. 29, 1981) alien’s status, may apply for asylum in virtue of other provisions of the INA,
(‘‘Interdiction of Illegal Aliens’’) accordance with this section or, where but the proclamation suspended entry
(revoked and replaced by Exec. Order applicable, [8 U.S.C.] 1225(b).’’ INA and authorized further measures to
12807)—as was the proclamation 208(a)(1), 8 U.S.C. 1158(a)(1). Some past ensure that such migrants did not enter
upheld in Trump v. Hawaii, see 138 S. proclamations have accordingly made the United States contrary to the
Ct. at 2405. Other presidential orders clear that aliens subject to an entry bar President’s determination. See, e.g.,
have solely cited section 215(a)(1) as may still apply for asylum if they have Proc. 4865; Exec. Order 12807.
authority. See, e.g., Exec. Order 12172 nonetheless entered the United States. In the case of the southern border, a
(Nov. 26, 1979) (‘‘Delegation of See, e.g., Proc. 9645, sec. 6(e) (Sept. 24, proclamation that suspended the entry
Authority With Respect to Entry of 2017) (‘‘Enhancing Vetting Capabilities of aliens who crossed between the ports
Certain Aliens Into the United States’’) and Processes for Detecting Attempted of entry would address a pressing
(invoking section 215(a)(1) with respect Entry Into the United States by national problem concerning the
to certain Iranian visa holders). Terrorists or Other Public-Safety immigration system and our foreign
An alien whose entry is suspended or Threats’’) (‘‘Nothing in this relations with neighboring countries.
limited by a proclamation is one whom proclamation shall be construed to limit Even if most of those aliens would
the President has determined should not the ability of an individual to seek already be inadmissible under our laws,
enter the United States, or only should asylum, refugee status, withholding of the proclamation would impose
do so under certain conditions. Such an removal, or protection under the limitations on entry for the period of the
order authorizes measures designed to Convention Against Torture, consistent suspension against a particular class of
prevent such aliens from arriving in the with the laws of the United States.’’). aliens defined by the President. That
United States as a result of the As noted above, however, the asylum judgment would reflect a determination
President’s determination that it would statute also authorizes the Attorney that certain illegal entrants—namely,
be against the national interest for them General and Secretary ‘‘by regulation’’ those crossing between the ports of
to do so. For example, the proclamation to ‘‘establish additional limitations and entry on the southern border during the
and order that the Supreme Court conditions, consistent with [section 208 duration of the proclamation—were a
upheld in Sale, Proc. 4865 (Sept. 29, of the INA], under which an alien shall source of particular concern to the
1981) (‘‘High Seas Interdiction of Illegal be ineligible for asylum,’’ INA national interest. Furthermore, such a
Aliens’’); Exec. Order 12324, directed 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), and proclamation could authorize additional
the Coast Guard to interdict the boats of to set conditions or limitations on the measures to prevent the entry of such
tens of thousands of migrants fleeing consideration of an application for inadmissible aliens, again reflecting the
Haiti to prevent them from reaching asylum, INA 208(d)(5)(B), 8 U.S.C. national concern with this subset of
U.S. shores, where they could make 1158(d)(5)(B). The Attorney General and inadmissible aliens. The interim final
claims for asylum. The order further the Secretary have determined that this rule reflects the Departments’ judgment
authorized the Coast Guard to intercept authority should be exercised to render that, under the extraordinary
any vessel believed to be transporting ineligible for a grant of asylum any alien circumstances presented here, aliens
undocumented aliens to the United who is subject to a proclamation crossing the southern border in
States, ‘‘[t]o make inquiries of those on suspending or restricting entry along the contravention of such a proclamation
board, examine documents, and take southern border with Mexico, but who should not be eligible for a grant of
such actions as are necessary to carry nonetheless enters the United States asylum during the period of suspension
out this order,’’ and ‘‘[t]o return the after such a proclamation goes into or limitation on entry. The result would
vessel and its passengers to the country effect. Such an alien would have be to channel to ports of entry aliens
from which it came, or to another engaged in actions that undermine a who seek to enter the United States and
country, when there is reason to believe particularized determination in a assert an intention to apply for asylum

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that an offense is being committed proclamation that the President judged or a fear of persecution, and to provide
against the United States immigration as being required by the national for consideration of those statements
laws.’’ Exec. Order 12807, sec. 2(c). interest: That the alien should not enter there.
An alien whose entry is suspended or the United States. Significantly, this bar to eligibility for
restricted under such a proclamation, The basis for ineligibility in these a grant of asylum would be limited in
but who nonetheless reaches U.S. soil circumstances would be the scope. This bar would apply only
contrary to the President’s Departments’ conclusion that aliens prospectively. This bar would further

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apply only to a proclamation concerning the United States may avoid being Section 235(b)(1) of the INA, 8 U.S.C.
entry along the southern border, because removed on an expedited basis by 1225(b)(1), prescribes procedures in the
this interim rule reflects the need to making a threshold showing of a expedited-removal context for screening
facilitate urgent action to address credible fear of persecution at a initial an alien’s eligibility for asylum. When
current conditions at that border. This screening interview. At present, those these provisions were being debated in
bar would not apply to any aliens are often released into the interior 1996, legislators expressed particular
proclamation that expressly disclaimed of the United States pending concern that ‘‘[e]xisting procedures to
an effect on eligibility for asylum. And adjudication of such claims by an deny entry to and to remove illegal
this bar would not affect an applicant immigration court in section 240 aliens from the United States are
who is granted a waiver or is excepted proceedings especially if those aliens cumbersome and duplicative,’’ and that
from the suspension under the relevant travel as family units. Once an alien is ‘‘[t]he asylum system has been abused
proclamation, or an alien who did not released, adjudications can take months by those who seek to use it as a means
at any time enter the United States after or years to complete because of the of ‘backdoor’ immigration.’’ See H.R.
the effective date of such proclamation. increasing volume of claims and the Rep. No. 104–469, pt. 1, at 107 (1996).
Aliens who enter in contravention of need to expedite cases in which aliens Members of Congress accordingly
a proclamation will not, however, have been detained. The Departments described the purpose of expedited
overcome the eligibility bar merely expect that a substantial proportion of removal and related procedures as
because a proclamation has aliens subject to an entry proclamation ‘‘streamlin[ing] rules and procedures in
subsequently ceased to have effect. The concerning the southern border would the Immigration and Nationality Act to
alien still would have entered be subject to expedited removal, since make it easier to deny admission to
notwithstanding a proclamation at the approximately 234,534 aliens in FY inadmissible aliens and easier to remove
time the alien entered the United States, deportable aliens from the United
2018 who presented at a port of entry
which would result in ineligibility for States.’’ Id. at 157; see Am. Immigration
or were apprehended at the border were
asylum (but not for statutory Lawyers Ass’n v. Reno, 18 F. Supp. 2d
referred to expedited-removal
withholding or for CAT protection). 38, 41 (D.D.C. 1998), aff’d, 199 F.3d
proceedings.1 The procedural changes
Retaining eligibility for asylum for 1352 (DC Cir. 2000) (rejecting several
within expedited removal would be
aliens who entered the United States in constitutional challenges to IIRIRA and
confined to aliens who are ineligible for
contravention of the proclamation, but describing the expedited-removal
asylum because they are subject to a
evaded detection until it had ceased, process as a ‘‘summary removal process
regulatory bar for contravening an entry
could encourage aliens to take riskier for adjudicating the claims of aliens
proclamation.
measures to evade detection between who arrive in the United States without
ports of entry, and would continue to 1. Under existing law, expedited-
proper documentation’’).
stretch government resources dedicated removal procedures—streamlined
procedures for expeditiously reviewing Congress thus provided that aliens
to apprehension efforts.
This restriction on eligibility to claims and removing certain aliens— ‘‘inadmissible under [8 U.S.C.]
asylum is consistent with section apply to those individuals who arrive at 1182(a)(6)(C) or 1182(a)(7)’’ shall be
208(a)(1) of the INA, 8 U.S.C. 1158(a)(1). a port of entry or those who have ‘‘removed from the United States
The regulation establishes a condition entered illegally and are encountered by without further hearing or review unless
on asylum eligibility, not on the ability an immigration officer within 100 miles the alien indicates either an intention to
to apply for asylum. Compare INA of the border and within 14 days of apply for asylum under [8 U.S.C. 1158]
208(a), 8 U.S.C. 1158(a) (describing entering. See INA 235(b), 8 U.S.C. or a fear of persecution.’’ INA
conditions for applying for asylum), 1225(b); Designating Aliens For 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i);
with INA 208(b), 8 U.S.C. 1158(b) Expedited Removal, 69 FR 48877, 48880 see INA 235(b)(1)(A)(ii), 8 U.S.C.
(identifying exceptions and bars to (Aug. 11, 2004). To be subject to 1225(b)(1)(A)(ii) (such aliens shall be
granting asylum). And, as applied to a expedited removal, an alien must also referred ‘‘for an interview by an asylum
proclamation that suspends the entry of be inadmissible under INA 212(a)(6)(C) officer’’). On its face, the statute refers
aliens who crossed between the ports of or (a)(7), 8 U.S.C. 1182(a)(6)(C) or (a)(7), only to proceedings to establish
entry at the southern border, the meaning that the alien has either tried eligibility for an affirmative grant of
restriction would not preclude an alien to procure documentation through asylum and its attendant benefits, not to
physically present in the United States misrepresentation or lacks such statutory withholding of removal or
from being granted asylum if the alien documentation altogether. Thus, an CAT protection against removal to a
arrives in the United States through any alien encountered in the interior of the particular country.
border other than the southern land United States who entered in An alien referred for a credible-fear
border with Mexico or at any time other contravention of a proclamation and interview must demonstrate a ‘‘credible
than during the pendency of a who is not otherwise amenable to fear,’’ defined as a ‘‘significant
proclamation suspending or limiting expedited removal would be placed in possibility, taking into account the
entry. proceedings under section 240 of the credibility of the statements made by
INA. The interim rule does not invite the alien in support of the alien’s claim
B. Screening Procedures in Expedited and such other facts as are known to the
Removal for Aliens Subject to comment on existing regulations
implementing the present scope of officer, that the alien could establish
Proclamations eligibility for asylum under [8 U.S.C.
expedited removal.
The rule would also modify certain 1158].’’ INA 235(b)(1)(B)(v), 8 U.S.C.

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aspects of the process for screening 1 As noted below, in FY 2018, approximately 1225(b)(1)(B)(v). According to the House
claims for protection asserted by aliens 171,511 aliens entered illegally between ports of report, ‘‘[t]he credible-fear standard
who have entered in contravention of a entry, were apprehended by CBP, and were placed [wa]s designed to weed out non-
proclamation and who are subject to in expedited removal. Approximately 59,921 meritorious cases so that only
inadmissible aliens arrived at ports of entry and
expedited removal under INA 235(b)(1), were placed in expedited removal. Furthermore,
applicants with a likelihood of success
8 U.S.C. 1225(b)(1). Under current ICE arrested some 3,102 aliens and placed them in will proceed to the regular asylum
procedures, aliens who unlawfully enter expedited removal. process.’’ H.R. Rep. No. 104–69, at 158.

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If the asylum officer determines that statutory withholding or CAT resulting from an aggravated felony
the alien lacks a credible fear, then the protection. conviction, then he is categorically
alien may request review by an Current regulations instruct USCIS ineligible for asylum. See id. § 208.31(a),
immigration judge. INA adjudicators and immigration judges to (e). Such an alien can be placed in
235(b)(1)(B)(iii)(III), 8 U.S.C. treat an alien’s request for asylum in withholding-only proceedings to
1225(b)(1)(B)(iii)(III). If the immigration expedited-removal proceedings under adjudicate his statutory withholding or
judge concurs with the asylum officer’s section 1225(b) as a request for statutory CAT claims, but only if he first
negative credible-fear determination, withholding and CAT protection as establishes a ‘‘reasonable fear’’ of
then the alien shall be removed from the well. See 8 CFR 208.3(b), 208.30(e)(2)– persecution or torture through a
United States without further review by (4), 1208.3(b), 1208.16(a). In the context screening process that tracks the
either the Board or the courts. INA of expedited-removal proceedings, credible-fear process. See id. § 208.31(c),
235(b)(1)(B)(iii)(I), (b)(1)(C), 8 U.S.C. ‘‘credible fear of persecution’’ is defined (e). Reasonable fear is defined by
1225(b)(1)(B)(iii)(I), (b)(1)(C); INA to mean a ‘‘significant possibility’’ that regulation to mean a ‘‘reasonable
242(a)(2)(A)(iii), (e)(5), 8 U.S.C. the alien ‘‘could establish eligibility for possibility that [the alien] would be
1252(a)(2)(A)(iii), (e)(5); Pena v. Lynch, asylum under section 1158,’’ not CAT or persecuted on account of his or her race,
815 F.3d 452, 457 (9th Cir. 2016). By statutory withholding. INA religion, nationality, membership in a
contrast, if the asylum officer or 235(b)(1)(B)(v), 8 U.S.C. particular social group or political
immigration judge determines that the 1225(b)(1)(B)(v). Regulations opinion, or a reasonable possibility that
alien has a credible fear—i.e., ‘‘a nevertheless have generally provided he or she would be tortured in the
significant possibility . . . that the alien that aliens in expedited removal should country of removal.’’ Id. § 208.31(c).
could establish eligibility for asylum,’’ be subject to the same process for ‘‘This . . . screening process is modeled
INA 235(b)(1)(B)(v), 8 U.S.C. considering statutory withholding of on the credible-fear screening process,
1225(b)(1)(B)(v)—then the alien, under removal claims under INA 241(b)(3), 8 but requires the alien to meet a higher
current regulations, is placed in section U.S.C. 1231(b)(3), and claims for screening standard.’’ Regulations
240 proceedings for a full hearing before protection under the CAT, as they are Concerning the Convention Against
an immigration judge, with appeal for asylum claims. See 8 CFR Torture, 64 FR at 8485; see also Garcia
available to the Board and review in the 208.30(e)(2)–(4). v. Johnson, No. 14–CV–01775, 2014 WL
federal courts of appeals, see INA Thus, when the Immigration and 6657591, at *2 (N.D. Cal. Nov. 21, 2014)
235(b)(1)(B)(ii), (b)(2)(A), 8 U.S.C. Naturalization Service provided for (describing the aim of the regulations as
1225(b)(1)(B)(ii), (b)(2)(A); INA 242(a), 8 claims for statutory withholding of providing ‘‘fair and efficient
U.S.C. 1252(a); 8 CFR 208.30(e)(5), removal and CAT protection to be procedures’’ in reasonable-fear
considered in the same expedited- screening that would comport with U.S.
1003.1. The interim rule does not invite
removal proceedings as asylum, the international obligations).
comment on existing regulations
result was that if an alien showed that Significantly, when establishing the
implementing this framework.
there was a significant possibility of reasonable-fear screening process, DOJ
By contrast, section 235 of the INA is establishing eligibility for asylum and explained that the two affected
silent regarding procedures for the was therefore referred for removal categories of aliens should be screened
granting of statutory withholding of proceedings under section 240 of the based on the higher reasonable-fear
removal and CAT protection; indeed, INA, any potential statutory standard because, ‘‘[u]nlike the broad
section 235 predates the legislation withholding and CAT claims the alien class of arriving aliens who are subject
directing implementation of U.S. might have were referred as well. This to expedited removal, these two classes
obligations under Article 3 of the CAT. was done on the assumption that that it of aliens are ineligible for asylum,’’ and
See Foreign Affairs Reform and would not ‘‘disrupt[ ] the streamlined may be entitled only to statutory
Restructuring Act of 1998, Public Law process established by Congress to withholding of removal or CAT
105–277, sec. 2242(b) (requiring circumvent meritless claims.’’ protection. Regulations Concerning the
implementation of CAT); IIRIRA, Public Regulations Concerning the Convention Convention Against Torture, 64 FR at
Law 104–208, sec. 302 (revising section Against Torture, 64 FR 8478, 8485 (Feb. 8485. ‘‘Because the standard for
235 of the INA to include procedures for 19, 1999). But while the INA authorizes showing entitlement to these forms of
dealing with inadmissible aliens who the Attorney General and Secretary to protection (a probability of persecution
intend to apply for asylum). The legal provide for consideration of statutory or torture) is significantly higher than
standards for ultimately granting asylum withholding and CAT claims together the standard for asylum (a well-founded
on the merits versus statutory with asylum claims or other matters that fear of persecution), the screening
withholding or CAT protection are also may be considered in removal standard adopted for initial
different. Asylum requires an applicant proceedings, the INA does not require consideration of withholding and
to ultimately establish a ‘‘well-founded that approach, see Foti v. INS, 375 U.S. deferral requests in these contexts is
fear’’ of persecution, which has been 217, 229–30 & n.16 (1963), or that they also higher.’’ Id.
interpreted to mean a ‘‘reasonable be considered in the same way. 2. Drawing on the established
possibility’’ of persecution—a ‘‘more Since 1999, regulations also have framework for considering whether to
generous’’ standard than the ‘‘clear provided for a distinct ‘‘reasonable fear’’ grant withholding of removal or CAT
probability’’ of persecution or torture screening process for certain aliens who protection in the reasonable-fear
standard that applies to statutory are categorically ineligible for asylum context, this interim rule establishes a
withholding or CAT protection. See INS and can thus make claims only for bifurcated screening process for aliens

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v. Stevic, 467 U.S. 407, 425, 429–30 statutory withholding or CAT subject to expedited removal who are
(1984); Santosa v. Mukasey, 528 F.3d protections. See 8 CFR 208.31. ineligible for asylum by virtue of
88, 92 & n.1 (1st Cir. 2008); compare 8 Specifically, if an alien is subject to entering in contravention of a
CFR 1208.13(b)(2)(i)(B) with 8 CFR having a previous order of removal proclamation, but who express a fear of
1208.16(b)(2), (c)(2). As a result, reinstated or is a non-permanent return or seek statutory withholding or
applicants who establish eligibility for resident alien subject to an CAT protection. The Attorney General
asylum are not necessarily eligible for administrative order of removal and Secretary have broad authority to

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implement the immigration laws, see or suspension on entry imposed by a removal, or CAT protection will
INA 103, 8 U.S.C. 1103, including by proclamation. Further, consistent with continue to go before an asylum officer
establishing regulations, see INA 103, 8 section 235(b)(1)(B) of the INA, if the for screening, consistent with INA
U.S.C. 1103(a)(3), and to regulate immigration judge reversed the asylum 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The
‘‘conditions or limitations on the officer’s determination, the alien could asylum officer will ask threshold
consideration of an application for assert the asylum claim in section 240 questions to elicit whether an alien is
asylum,’’ id. 1158(d)(5)(B). Furthermore, proceedings. ineligible for a grant of asylum pursuant
the Secretary has the authority—in her Aliens determined to be ineligible for to a proclamation entry bar. If there is
‘‘sole and unreviewable discretion,’’ the asylum by virtue of contravening a a significant possibility that the alien is
exercise of which may be ‘‘modified at proclamation, however, would still be not subject to the eligibility bar (and the
any time’’—to designate additional screened, but in a manner that reflects alien otherwise demonstrates sufficient
categories of aliens that will be subject that their only viable claims would be facts pertaining to asylum eligibility),
to expedited-removal procedures, so for statutory withholding or CAT then the alien will have established a
long as the designated aliens have not protection pursuant to 8 CFR credible fear.
been admitted or paroled nor 208.30(e)(2)–(4) and 1208.16(a). After If, however, an alien lacks a
continuously present in the United determining the alien’s ineligibility for significant possibility of eligibility for
States for two years. INA asylum under the credible-fear standard, asylum because of the proclamation bar,
235(b)(1)(A)(iii), 8 U.S.C. the asylum officer would apply the then the asylum officer will make a
1225(b)(1)(A)(iii). The Departments have long-established reasonable-fear negative credible-fear finding. The
frequently invoked these authorities to standard to assess whether further asylum officer will then apply the
establish or modify procedures affecting proceedings on a possible statutory reasonable-fear standard to assess the
aliens in expedited-removal withholding or CAT protection claim alien’s claims for statutory withholding
proceedings, as well as to adjust the are warranted. If the asylum officer of removal or CAT protection.
categories of aliens subject to particular determined that the alien had not An alien subject to the proclamation-
procedures within the expedited- established the requisite reasonable fear, based asylum bar who clears the
removal framework.2 the alien then could seek review of that reasonable-fear screening standard will
This rule does not change the decision from an immigration judge be placed in section 240 proceedings,
credible-fear standard for asylum (just as the alien may under existing 8 just as an alien who clears the credible-
claims, although the regulation would CFR 208.30 and 208.31), and would be fear standard will be. In those
expand the scope of the inquiry in the subject to removal only if the proceedings, the alien will also have an
process. An alien who is subject to a immigration judge agreed with the opportunity to raise whether the alien
relevant proclamation and nonetheless negative reasonable-fear finding. was correctly identified as subject to the
has entered the United States after the Conversely, if either the asylum officer proclamation ineligibility bar to asylum,
effective date of such a proclamation in or the immigration judge determined as well as other claims. If an
contravention of that proclamation that the alien cleared the reasonable-fear immigration judge determines that the
would be ineligible for asylum and threshold, the alien would be put in alien was incorrectly identified as
would thus not be able to establish a section 240 proceedings, just like aliens subject to the proclamation, the alien
‘‘significant possibility . . . [of] who receive a positive credible-fear will be able to apply for asylum. Such
eligibility for asylum under section determination for asylum. Employing a aliens can appeal the immigration
1158.’’ INA 235(b)(1)(B)(v), 8 U.S.C. reasonable-fear standard in this context, judge’s decision in these proceedings to
1225(b)(1)(B)(v). As current USCIS for this category of ineligible aliens, the BIA and then seek review from a
guidance explains, under the credible- would be consistent with the federal court of appeals.
Department of Justice’s longstanding Conversely, an alien who is found to
fear standard, ‘‘[a] claim that has no
rationale that ‘‘aliens ineligible for be subject to the proclamation asylum
possibility, or only a minimal or mere
asylum,’’ who could only be granted bar and who does not clear the
possibility, of success, would not meet
statutory withholding of removal or reasonable-fear screening standard can
the ‘significant possibility’ standard.’’
CAT protection, should be subject to a obtain review of both of those
USCIS, Office of Refugee, Asylum, &
different screening standard that would determinations before an immigration
Int’l Operations, Asylum Div., Asylum
correspond to the higher bar for actually judge, just as immigration judges
Officer Basic Training Course, Lesson currently review negative credible-fear
Plan on Credible Fear at 15 (Feb. 13, obtaining these forms of protection. See
Regulations Concerning the Convention and reasonable-fear determinations. If
2017). Consistent with section the immigration judge finds that either
235(b)(1)(B)(iii)(III) of the INA, the alien Against Torture, 64 FR at 8485
(‘‘Because the standard for showing determination was incorrect, then the
could still obtain review from an alien will be placed into section 240
immigration judge regarding whether entitlement to these forms of protection
. . . is significantly higher than the proceedings. In reviewing the
the asylum officer correctly determined determinations, the immigration judge
standard for asylum . . . the screening
that the alien was subject to a limitation will decide de novo whether the alien
standard adopted for initial
2 See, e.g., Eliminating Exception to Expedited
consideration of withholding and is subject to the proclamation asylum
Removal Authority for Cuban Nationals Arriving by deferral requests in these contexts is bar. If, however, the immigration judge
Air, 82 FR 4769 (Jan. 17, 2017); Designating Aliens also higher.’’). affirms both determinations, then the
For Expedited Removal, 69 FR 48877; The screening process established by alien will be subject to removal without
Implementation of the Agreement Between the the interim rule will accordingly further appeal, consistent with the

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Government of the United States of America and
the Government of Canada Regarding Asylum
proceed as follows. For an alien subject existing process under section 235 of
Claims Made in Transit and at Land Border Ports- to expedited removal, DHS will the INA. In short, aliens subject to the
of-Entry, 69 FR 10620 (March 8, 2004); New Rules ascertain whether the alien seeks proclamation eligibility bar to asylum
Regarding Procedures for Asylum and Withholding protection, consistent with INA will be processed through existing
of Removal, 63 FR 31945 (June 11, 1998); Asylum
Procedures, 65 FR 76121; Regulations Concerning
235(b)(1)(A)(ii), 8 U.S.C. procedures by DHS and EOIR in
the Convention Against Torture, 64 FR 8478 (Feb. 1225(b)(1)(A)(ii). All aliens seeking accordance with 8 CFR 208.30 and
19, 1999). asylum, statutory withholding of 1208.30, but will be subject to the

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reasonable-fear standard as part of those applicable to an alien barred under a Recent numbers illustrate the scope
procedures with respect to their covered proclamation. See 8 CFR and scale of the problems caused by the
statutory withholding and CAT 208.30(e)(5) (referring to an alien who disconnect between the number of
protection claims.3 ‘‘appears to be subject to one or more of aliens asserting a credible fear and the
2. The above process will not affect the mandatory bars to . . . asylum number of aliens who ultimately are
the process in 8 CFR 208.30(e)(5) for contained in section 208(a)(2) and deemed eligible for, and granted,
certain existing statutory bars to asylum 208(b)(2) of the [INA]’’). By using a asylum. In FY 2018, DHS identified
eligibility. Under that regulatory definite article (‘‘the mandatory bars to some 612,183 inadmissible aliens who
provision, many aliens who appear to . . . asylum’’) and the phrase entered the United States, of whom
fall within an existing statutory bar, and ‘‘contained in,’’ 8 CFR 208.30(e)(5) may 404,142 entered unlawfully between
thus appear to be ineligible for asylum, refer only to aliens who are subject to ports of entry and were apprehended by
can nonetheless be placed in section the defined mandatory bars ‘‘contained CBP, and 208,041 presented themselves
240 proceedings if they are otherwise in’’ specific parts of section 208 of the at ports of entry. Those numbers
eligible for asylum and obtain INA, such as the bar for aggravated exclude the inadmissible aliens who
immigration judge review of their felons, INA 208(b)(2)(B)(i), 8 U.S.C. crossed but evaded detection, and
asylum claims, followed by further 1558(b)(2)(B)(i), or the bar for aliens interior enforcement operations
review before the BIA and the courts of reasonably believed to be a danger to conducted by U.S. Immigration and
appeals. Specifically, with the U.S. security, INA 208(b)(2)(A)(iv), 8 Customs Enforcement (‘‘ICE’’). The vast
exceptions of stowaways and aliens U.S.C. 1158(b)(2)(A)(iv). It is thus not majority of those inadmissible aliens—
entering from Canada at a port of entry clear whether an alien subject to a 521,090—crossed the southern border.
(who are generally ineligible to apply further limitation or condition on Approximately 98% (396,579) of all
for asylum by virtue of a safe-third- asylum eligibility adopted pursuant to aliens apprehended after illegally
country agreement), 8 CFR 208.30(e)(5) section 208(b)(2)(C) of the INA would crossing between ports of entry made
provides that ‘‘if an alien is able to also be subject to the procedures set their crossings at the southern border,
establish a credible fear of persecution forth in 8 CFR 208.30(e)(5). Notably, the and 76% of all encounters at the
or torture but appears to be subject to preamble to the final rule adopting 8 southern border reflect such
one or more of the mandatory bars to CFR 208.30(e)(5) indicated that it was apprehensions. By contrast, 124,511
applying for, or being granted, asylum intended to apply to ‘‘any apparent inadmissible aliens presented
contained in section 208(a)(2) and statutory ineligibility under section themselves at ports of entry along the
208(b)(2) of the [INA] . . . [DHS] shall 208(a)(2) or 208(b)(2)(A) of the [INA],’’ southern border, representing 60% of all
nonetheless place the alien in and did not address future regulatory port traffic for inadmissible aliens and
proceedings under section 240 of the ineligibility under section 208(b)(2)(C) 24% of encounters with inadmissible
[INA] for full consideration of the of the INA, 8 U.S.C. 1158(b)(2)(C). aliens at the southern border.
alien’s claim.’’ Asylum Procedures, 65 FR at 76129. Nationwide, DHS has preliminarily
The language providing that the calculated that throughout FY 2018,
This rule does not resolve that question,
agency ‘‘shall nonetheless place the approximately 234,534 aliens who
however, but instead establishes an
alien in proceedings under section 240 presented at a port of entry or were
express regulatory provision dealing
of the [INA]’’ was promulgated in 2000 apprehended at the border were referred
specifically with aliens subject to a
in a final rule implementing asylum to expedited-removal proceedings. Of
limitation under section 212(f) or
procedures after the 1996 enactment of that total, approximately 171,511 aliens
215(a)(1) of the INA.
IIRIRA. See Asylum Procedures, 65 FR were apprehended crossing between
at 76137. The explanation for this C. Anticipated Effects of the Rule ports of entry; approximately 59,921
change was that some commenters were inadmissible aliens who presented
suggested that aliens should be referred 1. The interim rule aims to address an
urgent situation at the southern border. at ports of entry; and approximately
to section 240 proceedings ‘‘regardless 3,102 were arrested by ICE and referred
of any apparent statutory ineligibility In recent years, there has been a
significant increase in the number and to expedited removal.4 The total number
under section 208(a)(2) or 208(b)(2)(A) of aliens of all nationalities referred to
of the [INA]. The Department has percentage of aliens who seek admission
or unlawfully enter the United States expedited-removal proceedings has
adopted that suggestion and has so significantly increased over the last
amended the regulation.’’ Id. at 76129. and then assert an intent to apply for
asylum or a fear of persecution. The vast decade, from 161,516 aliens in 2008 to
This rule will avoid a textual approximately 234,534 in FY 2018 (an
ambiguity in 8 CFR 208.30(e)(5), which majority of such assertions for
protection occur in the expedited- overall increase of about 45%). Of those
is unclear regarding its scope, by adding totals, the number of aliens from the
a new sentence clarifying the process removal context, and the rates at which
such aliens receive a positive credible- Northern Triangle referred to expedited-
3 Nothing about this screening process or in this fear determination have increased in the removal proceedings has increased from
interim rule would alter the existing procedures for last five years. Having passed through 29,206 in FY 2008 (18% of the total
processing alien stowaways under the INA and the credible-fear screening process,
associated regulations. An alien stowaway is 4 All references to the number of aliens subject to

unlikely to be subject to 8 CFR 208.13(c)(3) and
many of these aliens are released into expedited removal in FY 2018 reflect data for the
1208.13(c)(3) unless a proclamation specifically the interior to await further section 240 first three quarters of the year and projections for
applies to stowaways or to entry by vessels or removal proceedings. But many aliens the fourth quarter of FY 2018. It is unclear whether
aircraft. INA 101(a)(49), 8 U.S.C. 1101(a)(49). who pass through the credible-fear the ICE arrests reflect additional numbers of aliens

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Moreover, an alien stowaway is barred from being processed at ports of entry. Another approximately
placed into section 240 proceedings regardless of
screening thereafter do not pursue their 130,211 aliens were subject to reinstatement,
the level of fear of persecution he establishes. INA claims for asylum. Moreover, a meaning that the alien had previously been
235(a)(2), 8 U.S.C. 1225(a)(2). Similarly, despite the substantial number fail to appear for a removed and then unlawfully entered the United
incorporation of a reasonable-fear standard into the section 240 proceeding. And even aliens States again. The vast majority of reinstatements
evaluation of certain cases under credible-fear involved Mexican nationals. Aliens subject to
procedures, nothing about this screening process or
who passed through credible-fear reinstatement who express a fear of persecution or
in this interim rule implicates existing reasonable- screening and apply for asylum are torture receive reasonable-fear determinations
fear procedures in 8 CFR 208.31 and 1208.31. granted it at a low rate. under 8 CFR 208.31.

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161,516 aliens referred) to Those asylum officers found a credible reversed an additional 91 negative
approximately 103,752 in FY 2018 (44% fear in 89% (74,574) of decided cases— credible-fear determinations, resulting
of the total approximately 234,534 meaning that almost all of those aliens’ in some 4,352 cases (83% of cases
aliens referred, an increase of over cases were referred on for further decided on the merits) in which
300%). In FY 2018, nationals of the immigration proceedings under section Mexican nationals were referred to
Northern Triangle represented 240, and many of the aliens were section 240 proceedings after receiving
approximately 103,752 (44%) of the released into the interior while awaiting a positive credible-fear determination.
aliens referred to expedited-removal those proceedings.6 As noted, nationals These figures have enormous
proceedings; approximately 91,235 of Northern Triangle countries represent consequences for the asylum system
(39%) were Mexican; and nationals the bulk of credible-fear referrals (65%, writ large. Asylum officers and
from other countries made up the or 63,562 cases where the alien immigration judges devote significant
remaining balance (17%). As of the date expressed an intent to apply for asylum resources to these screening interviews,
of this rule, final expedited-removal or asserted a fear). In cases where which the INA requires to happen
statistics for FY 2018 specific to the asylum officers decided whether within a fixed statutory timeframe.
southern border are not available. But nationals of these countries had a These aliens must also be detained
the Departments’ experience with credible fear, they received a positive during the pendency of expedited-
immigration enforcement has credible-fear finding 88% of the time.7 removal proceedings. See INA 235(b), 8
demonstrated that the vast majority of Moreover, when aliens from those U.S.C. 1225(b); Jennings v. Rodriguez,
expedited-removal actions have also countries sought review of negative 138 S. Ct. 830, 834 (2018). And
occurred along the southern border. findings by an immigration judge, they assertions of credible fear in expedited
Once in expedited removal, some obtained reversals approximately 18% removal have rapidly grown in the last
97,192 (approximately 41% of all aliens of the time, resulting in some 47,507 decade—especially in the last five years.
in expedited removal) were referred for cases in which nationals of Northern In FY 2008, for example, fewer than
a credible-fear interview with an asylum Triangle countries received positive 5,000 aliens were in expedited removal
officer, either because they expressed a credible-fear determinations.8 In other (5%) and were thus referred for a
fear of persecution or torture or an words: Aliens from Northern Triangle credible-fear interview. In FY 2014,
intent to apply for protection. Of that countries ultimately received a positive 51,001 referrals occurred (representing
number, 6,867 (7%) were Mexican credible-fear determination 89% of the 21% of aliens in expedited removal).
nationals, 25,673 (26%) were Honduran, time. Some 6,867 Mexican nationals The credible-fear referral numbers today
13,433 (14%) were Salvadoran, 24,456 were interviewed; asylum officers gave reflect a 190% increase from FY 2014
(25%) were Guatemalan, and other them a positive credible-fear and a nearly 2000% increase from FY
nationalities made up the remaining determination in 81% of decided cases 2008. Furthermore, the percentage of
28% (the largest proportion of which (4,261), and immigration judges cases in which asylum officers found
were 7,761 Indian nationals). that aliens had established a credible
6 Stowaways are the only category of aliens who
In other words: Approximately 61% fear—leading to the aliens being placed
would receive a positive credible-fear
of aliens from Northern Triangle determination and go to asylum-only proceedings, in section 240 removal proceedings—
countries placed in expedited removal as opposed to section 240 proceedings, but the has also increased in recent years. In FY
expressed the intent to apply for asylum number of stowaways is very small. Between FY 2008, asylum officers found a credible
or a fear of persecution and triggered 2013 and FY 2017, an average of roughly 300 aliens
per year were placed in asylum-only proceedings,
fear in about 3,200 (or 77%) of all cases.
credible-fear proceedings in FY 2018 and that number includes not only stowaways but In FY 2014, asylum officers found a
(approximately 69% of Hondurans, 79% all classes of aliens subject to asylum-only credible fear in about 35,000 (or 80%)
of Salvadorans, and 49% of proceedings. 8 CFR 1208.2(c)(1) (describing 10 of all cases in which they made a
categories of aliens, including stowaways found to
Guatemalans). These aliens represented have a credible fear, who are subject to asylum-only
determination. And in FY 2018, asylum
65% of all credible-fear referrals in FY proceedings). officers found a credible fear in nearly
2018. By contrast, only 8% of aliens 7 Asylum officers decided 53,205 of these cases 89% of all such cases.
from Mexico trigger credible-fear on the merits and closed the remaining 10,357 (but Once aliens are referred for section
proceedings when they are placed in sent many of the latter to section 240 proceedings).
Specifically, 25,673 Honduran nationals were
240 proceedings, their cases may take
expedited removal, and Mexicans interviewed; 21,476 of those resulted in a positive months or years to adjudicate due to
represented 7% of all credible-fear screening on the merits, 2,436 received a negative backlogs in the system. As of November
referrals. Other nationalities compose finding, and 1,761 were closed—meaning that 90% 2, 2018, there were approximately
of all Honduran cases involving a merits
the remaining 26,763 (28%) referred for determination resulted in a positive finding, and
203,569 total cases pending in the
credible-fear interviews. 10% were denied. Some 13,433 Salvadoran immigration courts that originated with
Once these 97,192 aliens were nationals were interviewed; 11,034 of those resulted a credible-fear referral—or 26% of the
interviewed by an asylum officer, in a positive screening on the merits 1,717 were total backlog of 791,821 removal cases.
denied, and 682 were closed—meaning that 86% of
83,862 cases were decided on the merits all Salvadoran cases involving a merits
Of that number, 136,554 involved
(asylum officers closed the others).5 determination resulted in a positive finding, and nationals of Northern Triangle countries
14% were denied. Some 24,456 Guatemalan (39,940 cases involving Hondurans;
5 DHS sometimes calculates credible-fear grant nationals were interviewed; 14,183 of those resulted 59,702 involving Salvadoran nationals;
rates as a proportion of all cases (positive, negative, in a positive screening on the merits, 2,359 were
denied, and 7,914 were closed—meaning that 86%
36,912 involving Guatemalan nationals).
and closed cases). Because this rule concerns the
merits of the screening process and closed cases are of all Guatemalan cases involving a merits Another 10,736 cases involved Mexican
not affected by that process, this preamble discusses determination resulted in a positive finding, and nationals.

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the proportions of determinations on the merits 14% were denied. Again, the percentages exclude In FY 2018, immigration judges
when describing the credible-fear screening closed cases so as to describe how asylum officers
make decisions on the merits.
completed 34,158 total cases that
process. This preamble does, however, account for
the fact that some proportion of closed cases are 8 Immigration judges in 2018 reversed 18% (288) originated with a credible-fear referral.9
also sent to section 240 proceedings when of negative credible-fear determinations involving
discussing the number of cases that immigration Hondurans, 19% (241) of negative credible-fear 9 All descriptions of case outcomes before

judges completed involving aliens referred for a determinations involving Salvadorans, and 17% immigration judges reflect initial case completions
credible-fear interview while in expedited-removal (285) of negative credible-fear determinations by an immigration judge during the fiscal year
proceedings. involving Guatemalans. Continued

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Those aliens were likely referred for Even among those aliens who differently: Only a little over half of
credible-fear screening between 2015 received a credible-fear interview, filed aliens from Northern Triangle countries
and 2018; the vast majority of these for asylum, and appeared in section 240 who claimed a fear of persecution and
cases arose from positive credible-fear proceedings to resolve their asylum passed threshold screening submitted
determinations as opposed to the subset claims—a category that would logically an application for asylum, and over a
of cases that were closed in expedited include the aliens with the greatest third did not appear at section 240
removal and referred for section 240 confidence in the merits of their proceedings.10 And only 1,889 aliens
proceedings. In a significant proportion claims—only a very small percentage from Northern Triangle countries were
of these cases, the aliens did not appear received asylum. In FY 2018 granted asylum, or approximately 9% of
for section 240 proceedings or did not immigration judges completed 34,158 completed cases for aliens from
file an application for asylum in cases that originated with a credible-fear Northern Triangle countries who
connection with those proceedings. In referral; only 20,563 of those cases received a credible-fear referral, 17% of
FY 2018, of the 34,158 completions that involved an application for asylum, and the cases where such aliens filed asylum
originated with a credible-fear referral, immigration judges granted only 5,639 applications in their removal
24,361 (71%) were completed by an aliens asylum. In other words, in FY proceedings, and about 23% of cases
immigration judge with the issuance of 2018, less than about 6,000 aliens who where such aliens’ asylum claims were
an order of removal. Of those completed passed through credible-fear screening adjudicated on the merits. Specifically,
cases, 10,534 involved in absentia (17% of all completed cases, 27% of all in FY 2018, 536 Hondurans, 408
removal orders, meaning that in completed cases in which an asylum Guatemalans, and 945 Salvadorans who
approximately 31% of all initial application was filed, and about 36% of initially were referred for a credible-fear
completions in FY 2018 that originated cases where the asylum claim was interview (whether in FY 2018 or
from a credible-fear referral, the alien adjudicated on the merits) established earlier) and progressed to section 240
failed to appear at a hearing. Moreover, that they should be granted asylum. (An proceedings were granted asylum.
additional 322 aliens received either The Departments thus believe that
of those 10,534 cases, there were 1,981
statutory withholding or CAT these numbers underscore the major
cases where an asylum application was costs and inefficiencies of the current
filed, meaning 8,553 did not file an protection.) Because there may be
multiple bases for denying an asylum asylum system. Again, numbers for
asylum application and failed to appear Northern Triangle nationals—who
at a hearing. Further, 40% of all initial application and immigration judges
often make alternative findings for represent the vast majority of aliens who
completions originating with a credible- claim a credible fear—illuminate the
fear referral (or 13,595 cases, including consideration of issues on appeal, EOIR
does not track reasons for asylum scale of the problem. Out of the 63,562
the 8,553 aliens just discussed) were Northern Triangle nationals who
completed in FY 2018 without an alien denials by immigration judges at a
granular level. Nevertheless, experience expressed an intent to apply for asylum
filing an application for asylum. In or a fear of persecution and received
short, in nearly half of the cases indicates that the vast majority of those
asylum denials reflect a conclusion that credible-fear screening interviews in FY
completed by an immigration judge in 2018, 47,507 received a positive
FY 2018 involving aliens who passed the alien failed to establish a significant
possibility of persecution, rather than credible-fear finding from the asylum
through a credible-fear referral, the alien officer or immigration judge. (Another
failed to appear at a hearing or failed to the effect of a bar to asylum eligibility
or a discretionary decision by an 10,357 cases were administratively
file an asylum application. closed, some of which also may have
immigration judge to deny asylum to an
Those figures are consistent with been referred to section 240
alien who qualifies as a refugee.
trends from FY 2008 through FY 2018, proceedings.) Those aliens will remain
The statistics for nationals of in the United States to await section 240
during which time DHS pursued some
Northern Triangle countries are proceedings while immigration judges
354,356 cases in the immigration courts
particularly illuminating. In FY 2018, work through the current backlog of
that involved aliens who had gone
immigration judges in section 240 nearly 800,000 cases—136,554 of which
through a credible-fear review (i.e., the
proceedings adjudicated 20,784 cases involve nationals of Northern Triangle
aliens received a positive credible-fear
involving nationals of Northern Triangle countries who passed through credible-
determination or their closed case was
countries who were referred for
referred for further proceedings). During
credible-fear interviews and then 10 These percentages are even higher for
this period, however, only about 53%
referred to section 240 proceedings (i.e., particular nationalities. In FY 2018, immigration
(189,127) of those aliens filed an asylum judges adjudicated 7,151 cases involving
they expressed a fear and either
application, despite the fact that they Hondurans whose cases originated with a credible-
received a positive credible-fear fear referral in expedited-removal proceedings. Of
were placed into further immigration
determination or had their case closed that 7,151, only 49% (3,509) filed an application for
proceedings under section 240 because
and referred to section 240 proceedings asylum, and 44% (3,167) had their cases completed
they alleged a fear during expedited- with an in absentia removal order because they
for an unspecified reason). Given that
removal proceedings. failed to appear. Similarly, immigration judges
those aliens asserted a fear of adjudicated 5,382 cases involving Guatemalans
persecution and progressed through whose cases originated with a credible-fear referral;
unless otherwise noted. All references to only 46% (2,457) filed an asylum application, and
applications for asylum generally involve
credible-fear screening, those aliens
41% (2,218) received in absentia removal orders.
applications for asylum, as opposed to some other presumably would have had the greatest The 8,251 Salvadoran cases had the highest rate of
form of protection, but EOIR statistics do not reason to then pursue an asylum asylum applications (filed in 65% of cases, or
distinguish between, for instance, the filing of an application. Yet in only about 54% of 5,341), and 31% of the total cases (2,534) involved

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application for asylum or the filing of an in absentia removal orders. Numbers for Mexican
application for statutory withholding. As noted, an
those cases did the alien file an asylum
nationals reflected similar trends. In FY 2018,
application for asylum is also deemed an application. Furthermore, about 38% of immigration judges adjudicated 3,307 cases
application for other forms of protection, and aliens from Northern Triangle countries involving Mexican nationals who progressed to
whether an application will be for asylum or only who were referred for credible-fear section 240 proceedings after being referred for a
for some other form of protection is often a post- credible-fear interview; 49% of them filed
filing determination made by the immigration judge
interviews and passed to section 240 applications for asylum in these proceedings, and
(for instance, because the one-year filing bar for proceedings did not appear, and were 25% of the total cases resulted in an in absentia
asylum applies). ordered removed in absentia. Put removal order.

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fear screening interviews. Immigration process, this process would better filter Office of the Chief Immigration Judge,
judges adjudicated 20,784 cases those aliens eligible for that form of Executive Office for Immigration
involving such nationals of Northern protection. Even assuming that grant Review at 6 (May 14, 1999) (explaining
Triangle countries in FY 2018; slightly rates for statutory withholding in the similarities between credible-fear and
under half of those aliens did not file an reasonable-fear screening process (a reasonable-fear proceedings for
application for asylum, and over a third higher standard) would be the same as immigration judges).
were screened through expedited grant rates for asylum, this screening That said, USCIS estimates that
removal but did not appear for a section mechanism would likely still allow asylum officers have historically
240 proceeding. Even when nationals of through a significantly higher averaged four to five credible-fear
Northern Triangle countries who passed percentage of cases than would likely be interviews and completions per day, but
through credible-fear screening applied granted. And the reasonable-fear only two to three reasonable-fear case
for asylum (as 11,307 did in cases screening rates would also still allow a completions per day. Comparing this
completed in FY 2018), immigration far greater percentage of claimants against current case processing targets,
judges granted asylum to only 1,889, or through than would ultimately receive and depending on the number of aliens
17% of the cases where such aliens filed CAT protection. Fewer than 1,000 aliens who contravene a presidential
asylum applications in their removal per year, of any nationality, receive CAT proclamation, such a change might
proceedings. Immigration judges found protection. result in the need to increase the
in the overwhelming majority of cases To the extent that aliens continued to number of officers required to conduct
that the aliens had no significant enter the United States in violation of a credible-fear or reasonable-fear
possibility of persecution. relevant proclamation, the application screenings to maintain current case
These existing burdens suggest an of the rule’s bar to eligibility for asylum completion goals. However, current
unsustainably inefficient process, and in the credible-fear screening process reasonable-fear interviews are for types
those pressures are now coupled with (combined with the application of the of aliens (aggravated felons and aliens
the prospect that large caravans of reasonable-fear standard to statutory subject to reinstatement) for whom
thousands of aliens, primarily from withholding and CAT claims) would relevant criminal and immigration
Central America, will seek to enter the reduce the number of cases referred to records take time to obtain, and for
United States unlawfully or without section 240 proceedings. Finally, the whom additional interviewing and
proper documentation and thereafter Departments emphasize that this rule administrative processing time is
trigger credible-fear screening would not prevent aliens with claims typically required. The population of
procedures and obtain release into the for statutory withholding or CAT aliens who would be subject to this rule
interior. The United States has been protection from having their claims would generally not have the same type
engaged in ongoing diplomatic adjudicated in section 240 proceedings of criminal and immigration records in
negotiations with Mexico and the after satisfying the reasonable-fear the United States, but additional
Northern Triangle countries (Guatemala, standard. interviewing time might be necessary.
El Salvador, and Honduras) about the Further, determining whether an alien Therefore, it is unclear whether these
problems on the southern border, but is subject to a suspension of entry averages would hold once the rule is
those negotiations have, to date, proved proclamation would ordinarily be implemented.
unable to meaningfully improve the straightforward, because such orders If an asylum officer determines that
situation. specify the class of aliens whose entry credible fear has been established but
2. In combination with a presidential is restricted. Likewise, adding questions for the existence of the proclamation
proclamation directed at the crisis on designed to elicit whether an alien is bar, and the alien seeks review of such
the southern border, the rule would subject to an entry proclamation, and determination before an immigration
help ameliorate the pressures on the employing a bifurcated credible-fear judge, DHS may need to shift additional
present system. Aliens who could not analysis for the asylum claim and resources towards facilitating such
establish a credible fear for asylum reasonable-fear review of the statutory review in immigration court in order to
purposes due to the proclamation-based withholding and CAT claims, will likely provide records of the negative credible-
eligibility bar could nonetheless seek not be unduly burdensome. Although fear determination to the immigration
statutory withholding of removal or DHS has generally not applied existing court. However, ICE attorneys, while
CAT protection, but would receive a mandatory bars to asylum in credible- sometimes present, generally do not
positive finding only by establishing a fear determinations, asylum officers advocate for DHS in negative credible-
reasonable fear of persecution or torture. currently probe for this information and fear or reasonable-fear reviews before an
In FY 2018, USCIS issued nearly 7,000 note in the record where the possibility immigration judge.
reasonable-fear determinations (i.e., exists that a mandatory bar may apply. DHS would, however, also expend
made a positive or negative Though screening for proclamation- additional resources detaining aliens
determination)—a smaller number based ineligibility for asylum may in who would have previously received a
because the current determinations are some cases entail some additional work, positive credible-fear determination and
limited to the narrow categories of USCIS will account for it under the who now receive, and challenge, a
aliens described above. Of those Paperwork Reduction Act, 44 U.S.C. negative credible-fear and reasonable-
determinations, USCIS found a 3501 et seq., as needed, following fear determination. Aliens are generally
reasonable fear in 45% of cases in 2018, issuance of a covered proclamation. detained during the credible-fear
and 48% of cases in 2017. Negative USCIS asylum officers and EOIR screening, but may be eligible for parole
reasonable-fear determinations were immigration judges have almost two or release on bond if they establish a

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then subject to further review, and decades of experience applying the credible fear. To the extent that the rule
immigration judges reversed reasonable-fear standard to statutory may result in lengthier interviews for
approximately 18%. withholding and CAT claims, and do so each case, aliens’ length of stay in
Even if rates of positive reasonable- in thousands of cases per year already detention would increase. Furthermore,
fear findings increased when a more (13,732 in FY 2018 for both EOIR and DHS anticipates that more negative
general population of aliens became USCIS). See, e.g., Memorandum for All determinations would increase the
subject to the reasonable-fear screening Immigration Judges, et al., from The number of aliens who would be

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detained and the length of time they focus of this rule is on the tens of more time in Mexico. Third-country
would be detained, since fewer aliens thousands of aliens each year (97,192 in nationals in this category would have
would be eligible for parole or release FY 2018) who assert a credible fear in added incentives to take advantage of
on bond. Also, to the extent this rule expedited-removal proceedings and may Mexican asylum procedures and to
would increase the number of aliens thereby be placed on a path to release make decisions about travel to a U.S.
who receive both negative credible-fear into the interior of the United States. port of entry based on information about
and reasonable-fear determinations, and The President has announced his which ports were most capable of swift
would thus be subject to immediate intention to take executive action to processing.
removal, DHS will incur increased and suspend the entry of aliens between Such an application of this rule could
more immediate costs for enforcement ports of entry and instead to channel also affect aliens who apply for asylum
and removal of these aliens. That cost such aliens to ports of entry, where they affirmatively or in removal proceedings
would be counterbalanced by the fact may seek to enter and assert an intent after entering through the southern
that it would be considerably more to apply for asylum in a controlled, border. Some of those asylum grants
costly and resource-intensive to orderly, and lawful manner. The would become denials for aliens who
ultimately remove such an alien after Departments have accordingly assessed became ineligible for asylum because
the end of section 240 proceedings, and the anticipated effects of such a they crossed illegally in contravention
the desirability of promoting greater presidential action so as to illuminate of a proclamation effective before they
enforcement of the immigration laws. how the rule would be applied in those entered. Such aliens could, however,
Attorneys from ICE represent DHS in circumstances. still obtain statutory withholding of
full immigration proceedings, and a. Effects on Aliens. Such a removal or CAT protection in section
immigration judges (who are part of proclamation, coupled with this rule, 240 proceedings.
DOJ) adjudicate those proceedings. If would have the most direct effect on the Finally, such a proclamation could
fewer aliens are found to have credible more than approximately 70,000 aliens also affect the thousands of aliens who
fear or reasonable fear and referred to a year (as of FY 2018) estimated to enter are granted asylum each year. Those
full immigration proceedings, such a between the ports of entry and then aliens’ cases are equally subject to
development will allow DOJ and ICE assert a credible fear in expedited- existing backlogs in immigration courts,
attorney resources to be reallocated to removal proceedings.11 If such aliens and could be adjudicated more swiftly
other immigration proceedings. The contravened a proclamation suspending if the number of non-meritorious cases
additional bars to asylum are unlikely to their entry unless they entered at a port declined. Aliens with meritorious
result in immigration judges spending of entry, they would become ineligible claims could thus more expeditiously
much additional time on each case for asylum, but would remain eligible receive the benefits associated with
where the nature of the proclamation for statutory withholding or CAT asylum.
bar is straightforward to apply. Further, protection. And for the reasons b. Effects on the Departments’
there will likely be a decrease in the discussed above, their claims would be Operations. Applying this rule in
number of asylum hearings before processed more expeditiously. conjunction with a proclamation that
immigration judges because certain Conversely, if such aliens decided to channeled aliens seeking asylum to
respondents will no longer be eligible instead arrive at ports of entry, they ports of entry would likely create
for asylum and DHS will likely refer would remain eligible for asylum and significant overall efficiencies in the
fewer cases to full immigration would proceed through the existing Departments’ operations beyond the
proceedings. If DHS officers identify the credible-fear screening process. general efficiencies discussed above.
proclamation-based bar to asylum Such an application of this rule could Channeling even some proportion of
(before EOIR has acquired jurisdiction also affect the decision calculus for the aliens who currently enter illegally and
over the case), EOIR anticipates a estimated 24,000 or so aliens a year (as assert a credible fear to ports of entry
reduction in both in-court and out-of- of FY 2018) who arrive at ports of entry would, on balance, be expected to help
court time for immigration judges. along the southern border and assert a the Departments more effectively
A decrease in the number of credible- credible fear in expedited-removal leverage their resources to promote
fear findings and, thus, asylum grants proceedings.12 Such aliens would likely orderly and efficient processing of
would also decrease the number of face increased wait times at a U.S. port inadmissible aliens.
employment authorization documents of entry, meaning that they would spend At present, CBP dedicates enormous
processed by DHS. Aliens are generally resources to attempting to apprehend
eligible to apply for and receive 11 The Departments estimated this number by aliens who cross the southern border
employment authorization and an using the approximately 171,511 aliens in FY 2018 illegally. As noted, CBP apprehended
Employment Authorization Document who were referred to expedited removal after 396,579 such aliens in FY 2018. Such
crossing illegally between ports of entry and being crossings often occur in remote
(Form I–766) after their asylum claim apprehended by CBP. That number excludes the
has been pending for more than 180 approximately 3,102 additional aliens who were locations, and over 16,000 CBP officers
days. See INA 208(d)(5)(A)(iii), 8 U.S.C. arrested by ICE, because it is not clear at this time are responsible for patrolling hundreds
1158(d)(5)(A)(iii); 8 CFR 1208.7(a)(1)(2). whether such aliens were ultimately processed at a of thousands of square miles of territory,
port of entry. The Departments also relied on the ranging from deserts to mountainous
This rule and any associated future fact that approximately 41% of aliens in expedited
presidential proclamations would also removal in FY 2018 triggered credible-fear terrain to cities. When a United States
be expected to have a deterrent effect screening. Border Patrol (‘‘Border Patrol’’ or
that could lessen future flows of illegal 12 The Departments estimated this number by ‘‘USBP’’) agent apprehends an alien
immigration. using the approximately 59,921 aliens in FY 2018 who enters unlawfully, the USBP agent

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who were referred to expedited removal after
3. The Departments are not in a presenting at a port of entry. That number excludes
takes the alien into custody and
position to determine how all entry the approximately 3,102 additional aliens who were transports the alien to a Border Patrol
proclamations involving the southern arrested by ICE, because it is not clear at this time station for processing—which could be
border could affect the decision calculus whether such aliens were ultimately processed at a hours away. Family units apprehended
port of entry. The Departments also relied on the
for various categories of aliens planning fact that approximately 41% of aliens in expedited
after crossing illegally present
to enter the United States through the removal in FY 2018 triggered credible-fear additional logistical challenges, and
southern border in the near future. The screening. may require additional agents to assist

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with the transport of the illegal aliens stations, ports of entry vary in their nationals most likely to be affected by
from the point of apprehension to the proximity to ICE detention facilities. the rule and a proclamation would also
station for processing. And The Departments acknowledge that in be highly unlikely to establish eligibility
apprehending one alien or group of the event all of the approximately for asylum.
aliens may come at the expense of 70,000 aliens per year who cross
illegally and assert a credible fear Regulatory Requirements
apprehending others while agents are
dedicating resources to transportation instead decide to present at a port of A. Administrative Procedure Act
instead of patrolling. entry, processing times at ports of entry
While the Administrative Procedure
At the Border Patrol station, a CBP would be slower in the absence of
additional resources or policies that Act (‘‘APA’’) generally requires agencies
agent obtains an alien’s fingerprints, to publish notice of a proposed
photographs, and biometric data, and would encourage aliens to enter at less
busy ports. Using FY 2018 figures, the rulemaking in the Federal Register for
begins asking background questions a period of public comment, it provides
about the alien’s nationality and number of aliens presenting at a port of
entry would rise from about 124,511 to an exception ‘‘when the agency for good
purpose in crossing. At the same time, cause finds . . . that notice and public
agents must make swift decisions, in about 200,000 aliens if all illegal aliens
who assert a credible fear went to ports procedure thereon are impracticable,
coordination with DOJ, as to whether to unnecessary, or contrary to the public
charge the alien with an immigration- of entry. That would likely create longer
lines at U.S. ports of entry, although the interest.’’ 5 U.S.C. 553(b)(B). This
related criminal offense. Further, agents exception relieves agencies of the
must decide whether to apply Departments note that such ports have
variable capacities and that wait times notice-and-comment requirement in
expedited-removal procedures, to emergency situations, or in
pursue reinstatement proceedings if the vary considerably between them. The
Departments nonetheless believe such a circumstances where ‘‘the delay created
alien already has a removal order in by the notice and comment
effect, to authorize voluntary return, or policy would be preferable to the status
quo. Nearly 40% of inadmissible aliens requirements would result in serious
to pursue some other lawful course of damage to important interests.’’ Woods
action. Once the processing of the alien who present at ports of entry today are
Mexican nationals, who rarely claim a Psychiatric Inst. v. United States, 20 Cl.
is completed, the USBP temporarily Ct. 324, 333 (1990), aff’d, 925 F.2d 1454
detains any alien who is referred for credible fear and who accordingly can
be processed and admitted or removed (Fed. Cir. 1991); see also Nat’l Fed’n of
removal proceedings. Once the USBP Federal Emps. v. Nat’l Treasury Emps.
quickly.
determines that an alien should be Union, 671 F.2d 607, 611 (D.C. Cir.
Furthermore, the overwhelming
placed in expedited-removal 1982); United States v. Dean, 604 F.3d
number of aliens who would have an
proceedings, the alien is expeditiously incentive under the rule and a 1275, 1279 (11th Cir. 2010). Agencies
transferred to ICE custody in proclamation to arrive at a port of entry have previously relied on this exception
compliance with federal law. The rather than to cross illegally are from in promulgating a host of immigration-
distance between ICE detention third countries, not from Mexico. In FY related interim rules.13 Furthermore,
facilities and USBP stations, however, 2018, CBP apprehended and referred to DHS has invoked this exception in
varies. Asylum officers and immigration expedited removal an estimated 87,544 promulgating rules related to expedited
judges review negative credible-fear Northern Triangle nationals and an removal—a context in which Congress
findings during expedited-removal estimated 66,826 Mexican nationals, but recognized the need for dispatch in
proceedings while the alien is in ICE Northern Triangle nationals assert a addressing large volumes of aliens by
custody. credible fear over 60% of the time, giving the Secretary significant
By contrast, CBP officers are able to whereas Mexican nationals assert a discretion to ‘‘modify at any time’’ the
employ a more orderly and streamlined credible fear less than 10% of the time. classes of aliens who would be subject
process for inadmissible aliens who The Departments believe that it is to such procedures. See INA
present at one of the ports of entry along reasonable for third-country aliens, who 235(b)(1)(A)(iii)(I), 8 U.S.C.
the southern border—even if they claim appear highly unlikely to be persecuted 1225(b)(1)(A)(iii)(I).14
a credible fear. Because such aliens have on account of a protected ground or
typically sought admission without tortured in Mexico, to be subject to 13 See, e.g., Visas: Documentation of

violating the law, CBP generally does orderly processing at ports of entry that Nonimmigrants Under the Immigration and
not need to dedicate resources to Nationality Act, as Amended, 81 FR 5906, 5907
takes into account resource constraints (Feb. 4, 2016) (interim rule citing good cause to
apprehending or considering whether to at ports of entry and in U.S. detention immediately require additional documentation from
charge such aliens. And while aliens facilities. Such orderly processing certain Caribbean agricultural workers to avoid ‘‘an
who present at a port of entry undergo would be impossible if large proportions increase in applications for admission in bad faith
threshold screening to determine their by persons who would otherwise have been denied
of third-country nationals continue to visas and are seeking to avoid the visa requirement
admissibility, see INA 235(b)(2), 8 cross the southern border illegally. and consular screening process during the period
U.S.C. 1225(b)(2), that process takes To be sure, some Mexican nationals between the publication of a proposed and a final
approximately the same amount of time who would assert a credible fear may rule’’); Suspending the 30-Day and Annual
as CBP’s process for obtaining details also have to spend more time waiting Interview Requirements From the Special
Registration Process for Certain Nonimmigrants, 68
from aliens apprehended between ports for processing in Mexico. Such FR 67578, 67581 (Dec. 2, 2003) (interim rule
of entry. Just as for illegal entrants, CBP nationals, however, could still obtain claiming good cause exception for suspending
officers at ports of entry must decide statutory withholding of removal or certain automatic registration requirements for
whether inadmissible aliens at ports of CAT protection if they crossed illegally, nonimmigrants because ‘‘without [the] regulation

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approximately 82,532 aliens would be subject to 30-
entry are subject to expedited removal. which would allow them a safeguard day or annual re-registration interviews’’ over six
Aliens subject to such proceedings are against persecution. Moreover, only 178 months).
then generally transferred to ICE Mexican nationals received asylum in 14 See, e.g., Eliminating Exception to Expedited

custody so that DHS can implement FY 2018 after initially asserting a Removal Authority for Cuban Nationals Arriving by
Air, 82 FR at 4770 (claiming good cause exception
Congress’s statutory mandate to detain credible fear of persecution in because the ability to detain certain Cuban
such aliens during the pendency of expedited-removal proceedings, nationals ‘‘while admissibility and identity are
expedited-removal proceedings. As with indicating that the category of Mexican Continued

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The Departments have concluded that because of similar short-run incentive southern border, unlawfully or without
the good-cause exceptions in 5 U.S.C. concerns). appropriate travel documents, directly
553(b)(B) and (d)(3) apply to this rule. These same concerns would apply implicates the foreign policy interests of
Notice and comment on this rule, along here as well. Pre-promulgation notice the United States. See, e.g., Exec. Order
with a 30-day delay in its effective date, and comment, or a delay in the effective 13767 (Jan. 25, 2017). Presidential
would be impracticable and contrary to date, could lead to an increase in proclamations invoking section 212(f) or
the public interest. The Departments migration to the southern border to 215(a)(1) of the INA at the southern
have determined that immediate enter the United States before the rule border necessarily implicate our
implementation of this rule is essential took effect. For instance, the thousands relations with Mexico and the
to avoid creating an incentive for aliens of aliens who presently enter illegally President’s foreign policy, including
to seek to cross the border during pre- and make claims of credible fear if and sensitive and ongoing negotiations with
promulgation notice and comment when they are apprehended would have Mexico about how to manage our shared
under 5 U.S.C. 553(b) or during the 30- an added incentive to cross illegally border.15 A proclamation under section
day delay in the effective date under 5 during the comment period. They have 212(f) of the INA would reflect a
U.S.C. 553(d). an incentive to cross illegally in the presidential determination that some or
DHS concluded in January 2017 that hopes of evading detection entirely. all entries along the border ‘‘would [be]
it was imperative to give immediate Even once apprehended, at present, they detrimental to the interests of the
effect to a rule designating Cuban are able to take advantage of a second United States.’’ And the structure of the
nationals arriving by air as eligible for opportunity to remain in the United rule, under which the Attorney General
expedited removal because ‘‘pre- States by making credible-fear claims in and the Secretary are exercising their
promulgation notice and comment expedited-removal proceedings. Even if statutory authority to establish a
would . . . endanger[] human life and their statements are ultimately not mandatory bar to asylum eligibility
hav[e] a potential destabilizing effect in found to be genuine, they are likely to resting squarely on a proclamation
the region.’’ Eliminating Exception to be released into the interior pending issued by the President, confirms the
Expedited Removal Authority for Cuban section 240 proceedings that may not direct relationship between the
Nationals Arriving by Air, 82 FR at occur for months or years. Based on the President’s foreign policy decisions in
4770. DHS in particular cited the available statistics, the Departments this area and the rule.
prospect that ‘‘publication of the rule as believe that a large proportion of aliens For instance, a proclamation aimed at
a proposed rule, which would signal a who enter illegally and assert a fear channeling aliens who wish to make a
significant change in policy while could be released while awaiting section claim for asylum to ports of entry at the
permitting continuation of the exception 240 proceedings. There continues to be southern border would be inextricably
for Cuban nationals, could lead to a an ‘‘urgent need to deter foreign related to any negotiations over a safe-
surge in migration of Cuban nationals nationals from undertaking dangerous third-country agreement (as defined in
seeking to travel to and enter the United border crossings, and thereby prevent INA 208(a)(2)(A), 8 U.S.C.
States during the period between the the needless deaths and crimes 1158(a)(2)(A)), or any similar
publication of a proposed and a final associated with human trafficking and arrangements. As noted, the vast
rule.’’ Id. DHS found that ‘‘[s]uch a alien smuggling operations.’’ majority of aliens who enter illegally
surge would threaten national security Designating Aliens For Expedited today come from the Northern Triangle
and public safety by diverting valuable Removal, 69 FR at 48878. countries, and large portions of those
Government resources from Furthermore, there are already large aliens assert a credible fear. Channeling
counterterrorism and homeland security numbers of migrants—including those aliens to ports of entry would
responsibilities. A surge could also have thousands of aliens traveling in groups, encourage these aliens to first avail
a destabilizing effect on the region, thus primarily from Central America— themselves of offers of asylum from
weakening the security of the United expected to attempt entry at the Mexico.
States and threatening its international southern border in the coming weeks. Moreover, this rule would be an
relations.’’ Id. DHS concluded: ‘‘[A] Some are traveling in large, organized integral part of ongoing negotiations
surge could result in significant loss of groups through Mexico and, by reports, with Mexico and Northern Triangle
human life.’’ Id.; accord, e.g., intend to come to the United States countries over how to address the influx
Designating Aliens For Expedited unlawfully or without proper of tens of thousands of migrants from
Removal, 69 FR 48877 (noting similar documentation and to express an intent Central America through Mexico and
destabilizing incentives for a surge to seek asylum. Creating an incentive for into the United States. For instance,
during a delay in the effective date); members of those groups to attempt to over the past few weeks, the United
Visas: Documentation of Nonimmigrants enter the United States unlawfully States has consistently engaged with the
Under the Immigration and Nationality before this rule took effect would make Security and Foreign Ministries of El
Act, as Amended, 81 FR at 5907 (finding more dangerous their already perilous Salvador, Guatemala, and Honduras, as
the good-cause exception applicable journeys, and would further strain well as the Ministries of Governance
CBP’s apprehension operations. This and Foreign Affairs of Mexico, to
determined and protection claims are adjudicated, interim rule is thus a practical means to
as well as to quickly remove those without address these developments and avoid 15 For instance, since 2004, the United States and
protection claims or claims to lawful status, is a
necessity for national security and public safety’’); creating an even larger short-term Mexico have been operating under a memorandum
Designating Aliens For Expedited Removal, 69 FR influx; an extended notice-and- of understanding concerning the repatriation of
at 48880 (claiming good cause exception for comment rulemaking process would be Mexican nationals. Memorandum of Understanding

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expansion of expedited-removal program due to Between the Department of Homeland Security of
‘‘[t]he large volume of illegal entries, and attempted
impracticable. the United States of America and the Secretariat of
illegal entries, and the attendant risks to national Alternatively, the Departments may Governance and the Secretariat of Foreign Affairs of
security presented by these illegal entries,’’ as well forgo notice-and-comment procedures the United Mexican States, on the Safe, Orderly,
as ‘‘the need to deter foreign nationals from and a delay in the effective date because Dignified and Humane Repatriation of Mexican
undertaking dangerous border crossings, and Nationals (Feb. 20, 2004). Article 6 of that
thereby prevent the needless deaths and crimes
this rule involves a ‘‘foreign affairs memorandum reserves the movement of third-
associated with human trafficking and alien function of the United States.’’ 5 U.S.C. country nationals through Mexico and the United
smuggling operations’’). 553(a)(1). The flow of aliens across the States for further bilateral negotiations.

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discuss how to address the mass influx announced by the President, and is 13771 because it is not a significant
of aliens traveling together from Central central to ongoing diplomatic regulatory action under Executive Order
America who plan to seek to enter at the discussions between the United States 12866. Though the potential costs,
southern border. Those ongoing and Cuba with respect to travel and benefits, and transfers associated with
discussions involve negotiations over migration between the two countries.’’ some proclamations may have any of a
issues such as how these other countries Eliminating Exception To Expedited range of economic impacts, this rule
will develop a process to provide this Removal Authority for Cuban Nationals itself does not have an impact aside
influx with the opportunity to seek Encountered in the United States or from enabling future action. The
protection at the safest and earliest Arriving by Sea, 82 FR at 4904–05. Departments have discussed what some
point of transit possible, and how to For the foregoing reasons, taken of the potential impacts associated with
establish compliance and enforcement together, the Departments have a proclamation may be, but these
mechanisms for those who seek to enter concluded that the foreign affairs impacts do not stem directly from this
the United States illegally, including for exemption to notice-and-comment rule and, as such, they do not consider
those who do not avail themselves of rulemaking applies. them to be costs, benefits, or transfers of
earlier offers of protection. Furthermore, this rule.
the United States and Mexico have been B. Regulatory Flexibility Act This rule amends existing regulations
engaged in ongoing discussions of a The Regulatory Flexibility Act, 5 to provide that aliens subject to
safe-third-country agreement, and this U.S.C. 601 et seq., as amended by the restrictions on entry under certain
rule will strengthen the ability of the Small Business Regulatory Enforcement proclamations are ineligible for asylum.
United States to address the crisis at the Fairness Act of 1996, requires an agency The expected effects of this rule for
southern border and therefore facilitate to prepare and make available to the aliens and on the Departments’
the likelihood of success in future public a regulatory flexibility analysis operations are discussed above. As
negotiations. that describes the effect of the rule on noted, this rule will result in the
This rule thus supports the small entities (i.e., small businesses, application of an additional mandatory
President’s foreign policy with respect small organizations, and small bar to asylum, but the scope of that bar
to Mexico and the Northern Triangle governmental jurisdictions). A will depend on the substance of relevant
countries in this area and is exempt regulatory flexibility analysis is not triggering proclamations. In addition,
from the notice-and-comment and required when a rule is exempt from this rule requires DHS to consider and
delayed-effective-date requirements in 5 notice-and-comment rulemaking. apply the proclamation bar in the
U.S.C. 553. See Am. Ass’n of Exporters credible-fear screening analysis, which
& Importers-Textile & Apparel Grp. v. C. Unfunded Mandates Reform Act of DHS does not currently do. Application
United States, 751 F.2d 1239, 1249 (Fed. 1995 of the new bar to asylum will likely
Cir. 1985) (noting that foreign affairs This interim final rule will not result decrease the number of asylum grants.
exception covers agency actions ‘‘linked in the expenditure by state, local, and By applying the bar earlier in the
intimately with the Government’s tribal governments, in the aggregate, or process, it will lessen the time that
overall political agenda concerning by the private sector, of $100 million or aliens who are ineligible for asylum and
relations with another country’’); more in any one year, and it will not who lack a reasonable fear of
Yassini v. Crosland, 618 F.2d 1356, significantly or uniquely affect small persecution or torture will be present in
1361 (9th Cir. 1980) (because an governments. Therefore, no actions were the United States. Finally, DOJ is
immigration directive ‘‘was deemed necessary under the provisions amending its regulations with respect to
implementing the President’s foreign of the Unfunded Mandates Reform Act aliens who are subject to the
policy,’’ the action ‘‘fell within the of 1995. proclamation bar to asylum eligibility to
foreign affairs function and good cause ensure that aliens who establish a
exceptions to the notice and comment D. Congressional Review Act
reasonable fear of persecution or torture
requirements of the APA’’). This interim final rule is not a major may still seek, in proceedings before
Invoking the APA’s foreign affairs rule as defined by section 804 of the immigration judges, statutory
exception is also consistent with past Congressional Review Act. 5 U.S.C. 804. withholding of removal under the INA
rulemakings. In 2016, for example, in This rule will not result in an annual or CAT protection.
response to diplomatic developments effect on the economy of $100 million
between the United States and Cuba, or more; a major increase in costs or Executive Order 13132 (Federalism)
DHS changed its regulations concerning prices; or significant adverse effects on This rule will not have substantial
flights to and from the island via an competition, employment, investment, direct effects on the States, on the
immediately effective interim final rule. productivity, innovation, or on the relationship between the national
This rulemaking explained that it was ability of United States-based government and the States, or on the
covered by the foreign affairs exception enterprises to compete with foreign- distribution of power and
because it was ‘‘consistent with U.S. based enterprises in domestic and responsibilities among the various
foreign policy goals’’—specifically, the export markets. levels of government. Therefore, in
‘‘continued effort to normalize relations accordance with section 6 of Executive
between the two countries.’’ Flights to E. Executive Order 12866, Executive
Order 13132, it is determined that this
and From Cuba, 81 FR 14948, 14952 Order 13563, and Executive Order
rule does not have sufficient federalism
(Mar. 21, 2016). In a similar vein, DHS 13771 (Regulatory Planning and Review)
implications to warrant the preparation
and the State Department recently This interim final rule is not a of a federalism summary impact

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provided notice that they were ‘‘significant regulatory action’’ under statement.
eliminating an exception to expedited section 3(f) of Executive Order 12866
removal for certain Cuban nationals. because the rule is exempt under the F. Executive Order 12988 (Civil Justice
The notice explained that the change in foreign-affairs exemption in section Reform)
policy was subject to the foreign affairs 3(d)(2) as part of the actual exercise of This rule meets the applicable
exception because it was ‘‘part of a diplomacy. The rule is consequently standards set forth in sections 3(a) and
major foreign policy initiative also exempt from Executive Order 3(b)(2) of Executive Order 12988.

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55952 Federal Register / Vol. 83, No. 218 / Friday, November 9, 2018 / Rules and Regulations

G. Paperwork Reduction Act expressly provides that it does not affect U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No.
eligibility for asylum, or expressly 2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002;
This rule does not propose new or
provides for a waiver or exception that section 203 of Pub. L. 105–100, 111 Stat.
revisions to existing ‘‘collection[s] of
makes the suspension or limitation 2196–200; sections 1506 and 1510 of Pub. L.
information’’ as that term is defined 106–386, 114 Stat. 1527–29, 1531–32; section
under the Paperwork Reduction Act of inapplicable to the alien.
■ 3. In § 208.30, revise the section
1505 of Pub. L. 106–554, 114 Stat. 2763A–
1995, Public Law 104–13, 44 U.S.C. 326 to –328.
chapter 35, and its implementing heading and add a sentence at the end
regulations, 5 CFR part 1320. of paragraph (e)(5) to read as follows: ■ 5. In § 1003.42, add a sentence at the
List of Subjects § 208.30 Credible fear determinations end of paragraph (d) to read as follows:
involving stowaways and applicants for
8 CFR Part 208 admission who are found inadmissible § 1003.42 Review of credible fear
pursuant to section 212(a)(6)(C) or 212(a)(7) determination.
Administrative practice and
procedure, Aliens, Immigration, of the Act or whose entry is limited or * * * * *
suspended under section 212(f) or 215(a)(1)
Reporting and recordkeeping of the Act. (d) * * * If the alien is determined to
requirements. be an alien described in 8 CFR
* * * * * 208.13(c)(3) or 1208.13(c)(3) and is
8 CFR Part 1003 (e) * * * determined to lack a reasonable fear
Administrative practice and (5) * * * If the alien is found to be
under 8 CFR 208.30(e)(5), the
procedure, Aliens, Immigration, Legal an alien described in 8 CFR 208.13(c)(3),
immigration judge shall first review de
services, Organization and functions then the asylum officer shall enter a
novo the determination that the alien is
(Government agencies). negative credible fear determination
described in 8 CFR 208.13(c)(3) or
with respect to the alien’s application
8 CFR Part 1208 1208.13(c)(3) prior to any further review
for asylum. The Department shall
of the asylum officer’s negative
Administrative practice and nonetheless place the alien in
determination.
procedure, Aliens, Immigration, proceedings under section 240 of the
Reporting and recordkeeping Act for full consideration of the alien’s * * * * *
requirements. claim for withholding of removal under
section 241(b)(3) of the Act, or for PART 1208—PROCEDURES FOR
Regulatory Amendments withholding or deferral of removal ASYLUM AND WITHHOLDING OF
DEPARTMENT OF HOMELAND under the Convention Against Torture if REMOVAL
SECURITY the alien establishes a reasonable fear of
persecution or torture. However, if an ■ 6. The authority citation for part 1208
Accordingly, for the reasons set forth continues to read as fol1ows:
in the preamble, the Secretary of alien fails to establish, during the
Homeland Security amends 8 CFR part interview with the asylum officer, a Authority: 8 U.S.C. 1101, 1103, 1158, 1226,
208 as follows: reasonable fear of either persecution or 1252, 1282; Title VII of Public Law 110–229.
torture, the asylum officer will provide
PART 208—PROCEDURES FOR the alien with a written notice of ■ 7. In § 1208.13, add paragraph (c)(3) to
ASYLUM AND WITHHOLDING OF decision, which will be subject to read as follows:
REMOVAL immigration judge review consistent
§ 1208.13 Establishing asylum eligibility.
with paragraph (g) of this section,
■ 1. The authority citation for part 208 except that the immigration judge will * * * * *
continues to read as fol1ows: review the reasonable fear findings (c) * * *
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, under the reasonable fear standard
instead of the credible fear standard (3) Additional limitation on eligibility
1252, 1282; Title VII of Public Law 110–229,
8 CFR part 2. described in paragraph (g) and in 8 CFR for asylum. For applications filed after
1208.30(g). November 9, 2018, an alien shall be
■ 2. In § 208.13, add paragraph (c)(3) to ineligible for asylum if the alien is
read as follows: * * * * * subject to a presidential proclamation or
Approved: other presidential order suspending or
§ 208.13 Establishing asylum eligibility.
Dated: November 5, 2018. limiting the entry of aliens along the
* * * * * southern border with Mexico that is
Kirstjen M. Nielsen,
(c) * * * issued pursuant to subsection 212(f) or
Secretary of Homeland Security.
(3) Additional limitation on eligibility 215(a)(1) of the Act on or after
for asylum. For applications filed after DEPARTMENT OF JUSTICE November 9, 2018 and the alien enters
November 9, 2018, an alien shall be Accordingly, for the reasons set forth the United States after the effective date
ineligible for asylum if the alien is in the preamble, the Attorney General of the proclamation or order contrary to
subject to a presidential proclamation or amends 8 CFR parts 1003 and 1208 as the terms of the proclamation or order.
other presidential order suspending or follows: This limitation on eligibility does not
limiting the entry of aliens along the apply if the proclamation or order
southern border with Mexico that is PART 1003—EXECUTIVE OFFICE FOR expressly provides that it does not affect
issued pursuant to subsection 212(f) or IMMIGRATION REVIEW eligibility for asylum, or expressly

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215(a)(1) of the Act on or after provides for a waiver or exception that
November 9, 2018 and the alien enters ■ 4. The authority citation for part 1003
makes the suspension or limitation
the United States after the effective date continues to read as follows: inapplicable to the alien.
of the proclamation or order contrary to Authority: 5 U.S.C. 301; 6 U.S.C 521; 8
the terms of the proclamation or order. U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, ■ 8. In § 1208.30, revise the section
This limitation on eligibility does not 1226, 1229, 1229a, 1229b, 1229c, 1231, heading and add paragraph (g)(1) to read
apply if the proclamation or order 1254a, 1255, 1324d, 1330, 1361, 1362; 28 as follows:

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§ 1208.30 Credible fear determinations –214, –231, –232, and –233 airplanes; A320–211, –212, –214, –231, –232, and
involving stowaways and applicants for and Model A321–111, –112, –131, –211, –233 airplanes; and Model A321–111,
admission who are found inadmissible –212, –213, –231, and –232 airplanes. –112, –131, –211, –212, –213, –231, and
pursuant to section 212(a)(6)(C) or 212(a)(7) This AD was prompted by reports of –232 airplanes. The NPRM published in
of the Act or whose entry is limited or
suspended under section 212(f) or 215(a)(1)
false resolution advisories (RAs) from the Federal Register on July 10, 2018
of the Act. certain traffic collision avoidance (83 FR 31911). The NPRM was
systems (TCASs). This AD requires prompted by reports of false RAs from
* * * * *
modification or replacement of certain certain TCASs. The NPRM proposed to
(g) * * *
TCAS processors. We are issuing this require modification or replacement of
(1) Review by immigration judge of a
AD to address the unsafe condition on certain TCAS processors.
mandatory bar finding. If the alien is
these products. We are issuing this AD to address the
determined to be an alien described in
DATES: This AD is effective December occurrence of false RAs from the TCAS,
8 CFR 208.13(c)(3) or 1208.13(c)(3) and
14, 2018. which could lead to a loss of separation
is determined to lack a reasonable fear
The Director of the Federal Register from other airplanes, possibly resulting
under 8 CFR 208.30(e)(5), the
approved the incorporation by reference in a mid-air collision.
immigration judge shall first review de The European Aviation Safety Agency
novo the determination that the alien is of certain publications listed in this AD
as of December 14, 2018. (EASA), which is the Technical Agent
described in 8 CFR 208.13(c)(3) or for the Member States of the European
1208.13(c)(3). If the immigration judge ADDRESSES: For service information
identified in this final rule, contact Union, has issued EASA AD 2017–0196,
finds that the alien is not described in dated October 5, 2017 (referred to after
8 CFR 208.13(c)(3) or 1208.13(c)(3), then Honeywell Aerospace, Technical
Publications and Distribution, M/S this as the Mandatory Continuing
the immigration judge shall vacate the Airworthiness Information, or ‘‘the
order of the asylum officer, and DHS 2101–201, P.O. Box 52170, Phoenix, AZ
85072–2170; phone: 602–365–5535; fax: MCAI’’), to correct an unsafe condition
may commence removal proceedings for certain Airbus SAS Model A318 and
under section 240 of the Act. If the 602–365–5577; internet: http://
www.honeywell.com. You may view this A319 series airplanes; Model A320–211,
immigration judge concurs with the –212, –214, –231, –232, and –233
credible fear determination that the service information at the FAA,
Transport Standards Branch, 2200 airplanes; and Model A321–111, –112,
alien is an alien described in 8 CFR –131, –211, –212, –213, –231, and –232
208.13(c)(3) or 1208.13(c)(3), the South 216th St., Des Moines, WA. For
information on the availability of this airplanes. The MCAI states:
immigration judge will then review the
asylum officer’s negative decision material at the FAA, call 206–231–3195. Since 2012, a number of false TCAS
It is also available on the internet at resolution advisories (RA) have been
regarding reasonable fear made under 8 reported by various European Air Navigation
CFR 208.30(e)(5) consistent with http://www.regulations.gov by searching
Service Providers. EASA has published
paragraph (g)(2) of this section, except for and locating Docket No. FAA–2018– certification guidance material for collision
that the immigration judge will review 0589. avoidance systems (AMC 20–15) which
the findings under the reasonable fear Examining the AD Docket defines a false TCAS RA as an RA that is
standard instead of the credible fear issued, but the RA condition does not exist.
standard described in paragraph (g)(2). You may examine the AD docket on It is possible that more false (or spurious) RA
the internet at http:// events have occurred, but were not recorded
* * * * * www.regulations.gov by searching for or reported. The known events were mainly
Dated: November 6, 2018. and locating Docket No. FAA–2018– occurring on Airbus single-aisle (A320
Jefferson B. Sessions III, 0589; or in person at Docket Operations family) aeroplanes, although several events
have also occurred on Airbus A330
Attorney General. between 9 a.m. and 5 p.m., Monday aeroplanes. Investigation determined that the
[FR Doc. 2018–24594 Filed 11–8–18; 4:15 pm] through Friday, except Federal holidays. false RAs are caused on aeroplanes with a
BILLING CODE 4410–30–P; 9111–97–P
The AD docket contains this final rule, Honeywell TPA–100B TCAS processor
the regulatory evaluation, any installed, P/N [part number] 940–0351–001.
comments received, and other This was caused by a combination of three
information. The address for Docket factors: (1) Hybrid surveillance enabled; (2)
DEPARTMENT OF TRANSPORTATION processor connected to a hybrid GPS [global
Operations (phone: 800–647–5527) is
positioning system] source, without a direct
Federal Aviation Administration U.S. Department of Transportation,
connection to a GPS source; and (3) an
Docket Operations, M–30, West encounter with an intruder aeroplane with
14 CFR Part 39 Building Ground Floor, Room W12–140, noisy (jumping) ADS–B Out position.
1200 New Jersey Avenue SE, EASA previously published Safety
[Docket No. FAA–2018–0589; Product Washington, DC 20590. Information Bulletin (SIB) 2014–33 to inform
Identifier 2018–NM–021–AD; Amendment owners and operators of affected aeroplanes
39–19489; AD 2018–23–03] FOR FURTHER INFORMATION CONTACT:
Steven Dzierzynski, Aerospace about this safety concern. At that time, the
RIN 2120–AA64 false RAs were not considered an unsafe
Engineer, Avionics and Administrative condition. Since the SIB was issued, further
Services Section, FAA, New York ACO events have been reported, involving a third
Airworthiness Directives; Airbus SAS
Branch, 1600 Stewart Avenue, Suite aeroplane.
Airplanes
410, Westbury, NY 11590; telephone This condition, if not corrected, could lead
AGENCY: Federal Aviation 516–228–7367; fax 516–794–5531. to a loss of separation with other aeroplanes,
Administration (FAA), Department of SUPPLEMENTARY INFORMATION: possibly resulting in a mid-air collision.

khammond on DSK30JT082PROD with RULES
Transportation (DOT). Prompted by these latest findings, and after
Discussion review of the available information, EASA
ACTION: Final rule. reassessed the severity and rate of occurrence
We issued a notice of proposed of false RAs and has decided that mandatory
SUMMARY: We are adopting a new rulemaking (NPRM) to amend 14 CFR action must be taken to reduce the rate of
airworthiness directive (AD) for certain part 39 by adding an AD that would occurrence, and the risk of loss of separation
Airbus SAS Model A318 and A319 apply to certain Airbus SAS Model with other aeroplanes. Honeywell
series airplanes; Model A320–211, –212, A318 and A319 series airplanes; Model International Inc. published Service Bulletin

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Case 3:19-cv-04073-JST Document 29-1 Filed 07/19/19 Page 30 of 185

Executive Office for Immigration Review (EOIR)
Pending Cases as of May 30, 2019

Pending Cases shown with I-589 Applications as of May 30, 2019

Pending I-862 and Pending I-862 and I-863 cases with
FY
I-863 cases Asylum Application
2019 (as of May 30,
904,189 436,382
2019)

AR021
Case 3:19-cv-04073-JST Document 29-1 Filed 07/19/19 Page 31 of 185

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
ADJUDICATION STATISTICS
Pending Cases1

1,000,000

900,000

800,000

700,000

600,000

500,000 Pending Cases

400,000

300,000

200,000

100,000

0
2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

Pending Cases at End of
FY
Fiscal Year
2008 186,095
2009 223,761
2010 262,718
2011 298,148
2012 327,527
2013 356,167
2014 430,004
2015 459,915
2016 521,284
2017 655,698
2018 794,316
2019 (Second Quarter)1 876,552

Data Generated: April 23, 2019
1 Pending cases equals removal, deportation, exclusion, asylum-only, and withholding only.
2 FY 2019 Second Quarter through March 31, 2019.

AR022
ECase
XECUTIVE OFFICE FOR IMMIGRATION REVIEW
3:19-cv-04073-JST Document 29-1 Filed 07/19/19 Page 32 of 185
ADJUDICATION STATISTICS
Immigration Judge (IJ) Hiring

500

450

400

350

300

250

200

150

100

0
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

Total IJs Hired Total IJs on Board

FY Total IJs Hired Total IJs on Board

2010 17 245
2011 39 273
2012 4 267
2013 8 262
2014 0 249
2015 20 254
2016 56 289
2017 64 338
2018 81 395
2019 (Third Quarter) 69 431

AR023
Data Generated: July 2019
Case 3:19-cv-04073-JST Document 29-1 Filed 07/19/19 Page 33 of 185
Federal Register / Vol. 84, No. 40 / Thursday, February 28, 2019 / Notices 6811

and wire connect, the origin of each SUPPLEMENTARY INFORMATION: On • U.S. Immigration and Customs
component must be identified. Please December 20, 2018, the Secretary of Enforcement, Memorandum from
note that if you wish to mark the Homeland Security (Secretary) Nathalie R. Asher, Acting Executive
stimulating probes, the insulated announced that DHS, consistent with Associate Director, for Field Office
stimulating probe, or the packaging the Migrant Protection Protocols, would Directors, Enforcement and Removal
containing these products to indicate begin implementation of section Operations, Migrant Protection
that they are ‘‘Made in the USA’’, the 235(b)(2)(C) of the Immigration and Protocols Guidance (Feb. 12, 2019),
marking must comply with the Nationality Act on a wide-scale basis to available at https://www.ice.gov/sites/
requirements of the Federal Trade resolve the migration crisis along our default/files/documents/Fact%20sheet/
Commission (FTC). We suggest that you southern border. 2019/ERO-MPP-Implementation-
direct any questions on this issue to the On January 25, 2019, the Secretary Memo.pdf.
FTC. issued ‘‘Policy Guidance for • U.S. Citizenship and Immigration
Implementation of the Migrant Services, Policy Memorandum PM–602–
HOLDING: Protection Protocols.’’ The January 25, 0169, Guidance for Implementing
Based on the information provided, 2019, policy guidance is available on Section 235(b)(2)(C) of the Immigration
with the exception of the insulated the DHS website at the following and Nationality Act and the Migrant
stimulating probe with a removable location: https://www.dhs.gov/sites/ Protection Protocols (Jan. 28, 2019),
handle, the country of origin of the default/files/publications/19_0129_ available at https://www.uscis.gov/sites/
stimulating probes is the United States. OPA_migrant-protection-protocols- default/files/USCIS/Laws/Memoranda/
With regard to the insulated stimulating policy-guidance.pdf. 2019/2019-01-28-Guidance-for-
probe with a removable handle, which DHS components subsequently issued Implementing-Section-35-b-2-C-
is only packaged in China, the country the following related documents, which INA.pdf.
of origin of the individual packaged are available on the DHS component
components remains unchanged. websites at the following locations: Kirstjen M. Nielsen,
Notice of this final determination will • U.S. Customs and Border Secretary.
be given in the Federal Register, as Protection, Guiding Principles for [FR Doc. 2019–03541 Filed 2–27–19; 8:45 am]
required by 19 C.F.R. § 177.29. Any Migrant Protection Protocols (Jan. 28, BILLING CODE 9110–9B–P
party-at-interest other than the party 2019), available at https://www.cbp.gov/
which requested this final sites/default/files/assets/documents/
determination may request, pursuant to 2019-Jan/MPP%20Guiding DEPARTMENT OF HOMELAND
19 C.F.R. § 177.31, that CBP reexamine %20Principles%201-28-19.pdf. SECURITY
the matter anew and issue a new final • U.S. Customs and Border
determination. Pursuant to 19 C.F.R. § Protection, Memorandum from Kevin K. U.S. Immigration and Customs
177.30, any party-at-interest may, McAleenan, Commissioner, for Todd C. Enforcement
within 30 days after publication of the Owen, Executive Assistant [OMB Control Number 1653–0045]
Federal Register notice referenced Commissioner, Field Operations, and
above, seek judicial review of this final Carla L. Provost, Chief, U.S. Border Agency Information Collection
determination before the Court of Patrol, Implementation of the Migrant Activities; Extension, Without Change,
International Trade. Protection Protocols (Jan. 28, 2019), of a Currently Approved Collection:
available at https://www.cbp.gov/sites/ Affidavit in Lieu of Lost Receipt of
Sincerely, default/files/assets/documents/2019- United States ICE for Collateral
Alice A. Kipel, Jan/Implementation%20of%20the%20 Accepted as Security
Executive Director, Regulations and Rulings, Migrant%20Protection%20
Office of Trade. Protocols.pdf. AGENCY: U.S. Immigration and Customs
[FR Doc. 2019–03539 Filed 2–27–19; 8:45 am] • U.S. Customs and Border Enforcement, Department of Homeland
BILLING CODE 9111–14–P Protection, Memorandum from Todd A. Security.
Hoffman, Executive Director, ACTION: 60-Day notice.
Admissibility and Passenger Programs,
DEPARTMENT OF HOMELAND Office of Field Operations, for Director, SUMMARY: In accordance with the
SECURITY Field Operations, Office of Field Paperwork Reductions Act (PRA) of
Operations and Director Field Operators 1995 the Department of Homeland
Office of the Secretary Academy, Office of Training and Security (DHS), U.S. Immigration and
Development, Guidance on Migrant Customs Enforcement (ICE) will submit
Notice of Availability for Policy the following Information Collection
Protection Protocols (Jan. 28, 2019),
Guidance Related to Implementation of Request (ICR) to the Office of
available at https://www.cbp.gov/sites/
the Migrant Protection Protocols Management and Budget (OMB) for
default/files/assets/documents/2019-
AGENCY: Office of the Secretary, Jan/MPP%20OFO%20Memo%201-28- review and clearance.
Department of Homeland Security. 19.pdf. DATES: Comments are encouraged and
ACTION: Notice of availability. • U.S. Immigration and Customs will be accepted until April 29, 2019.
Enforcement, Memorandum from ADDRESSES: You may submit comments,
SUMMARY: This document announces the Ronald Vitello, Deputy Director and identified by docket number ICEB–

khammond on DSKBBV9HB2PROD with NOTICES
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VerDate Sep<11>2014 17:52 Feb 27, 2019 Jkt 247001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\28FEN1.SGM 28FEN1
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104TH CONGRESS REPT. 104–469
" HOUSE OF REPRESENTATIVES !
2d Session Part 1

IMMIGRATION IN THE
NATIONAL INTEREST ACT OF 1995

R E P O R T
OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ON

H.R. 2202
together with

ADDITIONAL AND DISSENTING VIEWS
[Including cost estimate of the Congressional Budget Office]

MARCH 4, 1996.—Ordered to be printed

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IMMIGRATION IN THE NATIONAL INTEREST ACT OF 1995

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104TH CONGRESS REPT. 104–469
" HOUSE OF REPRESENTATIVES !
2d Session Part 1

IMMIGRATION IN THE
NATIONAL INTEREST ACT OF 1995

R E P O R T
OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ON

H.R. 2202
together with

ADDITIONAL AND DISSENTING VIEWS
[Including cost estimate of the Congressional Budget Office]

MARCH 4, 1996.—Ordered to be printed

U.S. GOVERNMENT PRINTING OFFICE
22–948 WASHINGTON : 1996

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CONTENTS

Page
The Amendment ...................................................................................................... 1
Explanation of Amendment .................................................................................... 106
Purpose and Summary ............................................................................................ 106
Background and Need for Legislation .................................................................... 110
Hearings ................................................................................................................... 182
Committee Consideration ........................................................................................ 182
Vote of the Committee ............................................................................................. 182
Committee Oversight Findings ............................................................................... 205
Committee on Government Reform and Oversight Findings ............................... 205
New Budget Authority and Tax Expenditures ...................................................... 205
Congressional Budget Office Cost Estimate .......................................................... 205
Inflationary Impact Statement ............................................................................... 218
Section-by-Section Analysis and Discussion .......................................................... 219
Agency Views ........................................................................................................... 278
Changes in Existing Law Made by the Bill, as Reported ..................................... 282
Additional/Minority Views ...................................................................................... 512

(III)

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104TH CONGRESS REPT. 104–469
" HOUSE OF REPRESENTATIVES !
2d Session Part 1

IMMIGRATION IN THE NATIONAL INTEREST ACT OF 1995

MARCH 4, 1996.—Ordered to be printed

Mr. HYDE, from the Committee on the Judiciary,
submitted the following

R E P O R T
together with

ADDITIONAL AND DISSENTING VIEWS

[To accompany H.R. 2202]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill
(H.R. 2202) to amend the Immigration and Nationality Act to im-
prove deterrence of illegal immigration to the United States by in-
creasing border patrol and investigative personnel, by increasing
penalties for alien smuggling and for document fraud, by reforming
exclusion and deportation law and procedures, by improving the
verification system for eligibility for employment, and through
other measures, to reform the legal immigration system and facili-
tate legal entries into the United States, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof
the following:
SECTION 1. SHORT TITLE; AMENDMENTS TO IMMIGRATION AND NATIONALITY ACT; TABLE OF
CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ‘‘Immigration in the National In-
terest Act of 1995’’.
(b) AMENDMENTS TO IMMIGRATION AND NATIONALITY ACT.—Except as otherwise
specifically provided—
(1) whenever in this Act an amendment or repeal is expressed as the amend-
ment or repeal of a section or other provision, the reference shall be considered

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107

The result is a crisis at the land border, allowing hundreds of thou-
sands of illegal aliens to cross each year, and contributing more
than half of the 300,000 to 400,000 annual growth in the illegal
alien population. The problem is not limited to illegal immigration
from this hemisphere: alien smugglers from around the globe have
set routes through Latin America and Canada to smuggle people
into the United States.
More border patrol agents, enhanced training, and improved bor-
der technology are all critical to regaining control over our nation’s
borders. H.R. 2202 includes all of these reforms, including a 1,000
annual increase in Border Patrol agents from now until the end of
the century. But H.R. 2202 does something more—it requires a
focus on prevention and deterrence of illegal immigration, modeled
after the successful ‘‘Operation Hold-the-Line’’ in El Paso, Texas.
H.R. 2202 also improves the security of Border Crossing Identifica-
tion Cards, so that such cards will only be used by those who have
been granted the privilege of carrying them.
Finally, illegal immigration control is not simply a matter of se-
curing the land border. Close to half of illegal immigrants enter on
temporary visas and overstay. H.R. 2202 authorizes new resources
for the prosecution of aliens with multiple illegal entries, and es-
tablishes pilot programs: (1) to deter multiple illegal entries into
the United States through strategies such as interior repatriation
or third country repatriation; (2) to use closed military facilities for
detention of illegal aliens; and (3) to create a system for tracking
the departures of temporary visitors.
TITLE II—ENFORCEMENT AGAINST ALIEN SMUGGLING AND DOCUMENT
FRAUD

Illegal immigration is facilitated through criminal activity: alien
smuggling, often carried out by organized criminal elements, and
document fraud, including visa and passport fraud. Federal law en-
forcement should have the same tools to combat immigration
crimes it does to combat other serious crimes that threaten public
safety and national security. Thus, H.R. 2202 extends current wire-
tap and undercover investigation authority to the investigation of
alien smuggling, document fraud, and other immigration-related
crimes. It increases criminal penalties for alien smuggling and doc-
ument fraud, establishes new civil penalties for document fraud,
and extends coverage of the federal anti-racketeering statute
(RICO) to organized criminal enterprises engaging in such activity.
TITLE III—REFORMING PROCEDURES FOR REMOVAL OF ILLEGAL
ALIENS

Existing procedures to deny entry to and to remove illegal aliens
from the United States are cumbersome and duplicative. Removal
of aliens who enter the United States illegally, even those who are
ordered deported after a full due process hearing, is an all-too-rare
event. The asylum system has been abused by those who seek to
use it as a means of ‘‘backdoor’’ immigration.
H.R. 2202 streamlines rules and procedures for removing illegal
aliens, and establishes special procedures for removing alien terror-
ists. Aliens who arrive in the United States with no valid docu-
ments will be removed on an expedited basis; arriving aliens with

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Credible Fear Workload Report Summary
FY 2018 Total Caseload
Totals Oct-17 Nov-17 Dec-17 Jan-18 Feb-18 Mar-18 Apr-18 May-18 Jun-18 Jul-18 Aug-18 Sep-18
Case Receipts 99,035 7,296 7,307 7,462 8,121 6,621 8,266 8,500 9,968 9,742 6,565 10,230 8,957
Interviews Conducted 85,018 5,339 6,365 6,265 6,926 5,699 7,280 7,142 8,877 8,941 6,065 8,066 8,053
All Decisions 97,728 6,359 7,494 7,164 8,108 6,880 8,640 7,869 10,067 10,080 7,155 8,755 9,157
Fear Established (Y) 74,677 4,797 5,781 5,606 6,171 5,134 6,347 6,175 8,079 7,472 5,246 6,639 7,230
Fear Not Established (N) 9,659 531 591 669 715 676 767 719 821 1,314 945 1,082 829
Closings 13,392 1,031 1,122 889 1,222 1,070 1,526 975 1,167 1,294 964 1,034 1,098

Credible Fear Workload Report by Month Total Caseload
OCT. 2017 (FY 2018) NOV. 2017 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 7,296 859 46 10 152 5,390 244 59 199 13 59 265 7,307 538 167 44 153 5,590 352 71 122 3 65 202
Interviews Conducted 5,339 625 40 2 89 3,943 199 41 149 16 42 193 6,365 497 46 1 136 4,972 322 21 147 1 20 202
All Decisions 6,359 811 68 2 108 4,675 203 50 172 16 49 205 7,494 660 75 1 163 5,809 346 25 160 2 22 231
Fear Established (Y) 4,797 502 37 2 65 3,604 192 30 127 14 35 189 5,781 411 36 1 124 4,545 302 20 127 1 18 196
Fear Not Established (N) 531 124 4 0 24 328 7 11 22 2 7 2 591 94 11 0 13 425 20 1 19 0 2 6
Closings 1,031 185 27 0 19 743 4 9 23 0 7 14 1,122 155 28 0 26 839 24 4 14 1 2 29

DEC. 2017 (FY 2018) JAN. 2018 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 7,462 698 375 28 125 5,135 364 201 191 39 44 262 8,121 883 400 15 108 5,675 432 73 203 14 127 191
Interviews Conducted 6,265 488 402 18 131 4,412 271 96 181 0 47 219 6,926 725 283 1 77 5,046 373 33 162 1 61 164
All Decisions 7,164 632 434 18 152 5,043 288 106 196 0 60 235 8,108 922 357 3 94 5,840 406 42 194 1 69 180
Fear Established (Y) 5,606 360 367 17 108 4,011 246 84 159 0 41 213 6,171 559 262 1 67 4,556 337 29 146 1 55 158
Fear Not Established (N) 669 123 37 1 23 411 24 12 25 0 6 7 715 175 21 0 9 443 37 4 14 0 6 6
Closings 889 149 30 0 21 621 18 10 12 0 13 15 1,222 188 74 2 18 841 32 9 34 0 8 16

FEB. 2018 (FY 2018) MARCH 2018 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 6,621 653 217 5 120 4,878 255 103 155 4 47 184 8,266 787 389 5 82 5,959 270 82 153 5 151 383
Interviews Conducted 5,699 566 167 7 96 4,061 270 121 140 68 63 140 7,280 609 363 7 57 5,531 166 26 157 0 107 257
All Decisions 6,880 757 149 8 106 4,926 304 142 156 78 99 155 8,640 683 386 8 126 6,615 205 40 180 0 100 297
Fear Established (Y) 5,134 449 114 6 48 3,775 257 104 116 67 76 122 6,347 435 301 8 69 4,884 141 31 140 0 81 257
Fear Not Established (N) 676 157 20 0 23 411 24 11 7 5 10 8 767 124 47 0 17 533 19 0 14 0 5 8
Closings 1,070 151 15 2 35 740 23 27 33 6 13 25 1,526 124 38 0 40 1,198 45 9 26 0 14 32
APRIL 2018 (FY 2018) MAY 2018 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 8,500 812 224 16 138 6,092 474 77 153 14 213 287 9,968 1,106 337 45 103 7,025 654 67 184 4 140 303
Interviews Conducted 7,142 753 207 9 93 4,857 482 44 149 1 217 330 8,877 924 263 27 91 6,452 556 59 156 0 109 240
All Decisions 7,869 905 246 9 97 5,249 551 52 174 1 249 336 10,067 1,107 309 35 119 7,279 570 71 170 0 127 280
Fear Established (Y) 6,175 558 187 7 69 4,209 453 39 160 0 216 277 8,079 730 212 28 78 6,040 484 51 117 0 97 242
Fear Not Established (N) 719 190 32 0 10 414 34 1 5 1 13 19 821 167 48 1 21 485 43 8 23 0 14 11
Closings 975 157 27 2 18 626 64 12 9 0 20 40 1,167 210 49 6 20 754 43 12 30 0 16 27
JUNE 2018 (FY 2018) JULY 2018 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 9,742 939 402 72 76 6,547 532 73 203 12 419 467 6,565 1,126 432 44 117 3,686 394 77 88 2 354 245
Interviews Conducted 8,941 878 420 54 40 6,126 521 43 189 2 351 317 6,065 840 242 31 106 3,680 375 51 91 0 333 316
All Decisions 10,080 1,034 488 55 37 6,988 566 59 225 1 368 259 7,155 950 287 37 136 4,384 403 72 107 0 395 384
Fear Established (Y) 7,472 668 316 49 26 5,224 479 34 178 1 281 216 5,246 640 163 27 83 3,231 343 39 77 0 297 346
Fear Not Established (N) 1,314 176 76 4 3 913 66 5 29 0 30 12 945 145 46 5 25 616 32 14 14 0 37 11
Closings 1,294 190 96 2 8 851 21 20 18 0 57 31 964 165 78 5 28 537 28 19 16 0 61 27
AUGUST 2018 (FY 2018) SEPTEMBER 2018 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 10,230 1,492 127 42 230 6,986 637 74 156 15 277 194 8,957 1,243 457 45 136 6,054 461 94 111 0 122 234
Interviews Conducted 8,066 1,167 167 33 174 5,405 488 63 118 0 277 174 8,053 987 410 13 118 5,577 476 52 116 0 154 150
All Decisions 8,755 1,249 235 34 223 5,766 503 72 131 0 316 226 9,157 1,246 470 8 99 6,375 497 41 114 0 153 154
Fear Established (Y) 6,639 932 179 29 135 4,339 422 64 82 0 260 197 7,230 916 377 5 62 5,054 425 21 105 0 128 137
Fear Not Established (N) 1,082 179 25 4 45 717 48 3 21 0 38 2 829 142 29 0 21 563 42 8 6 0 11 7
Closings 1,034 138 31 1 43 710 33 5 28 0 18 27 1,098 188 64 3 16 758 30 12 3 0 14 10

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Reasonable Fear Workload Report Summary
FY 2018 Total Caseload
Totals Oct-17 Nov-17 Dec-17 Jan-18 Feb-18 Mar-18 Apr-18 May-18 Jun-18 Jul-18 Aug-18 Sep-18
Case Receipts 11,101 862 856 855 922 775 888 915 1,041 979 969 1,125 914
Interviews Conducted 7,212 579 528 528 491 480 642 598 737 746 546 751 586
All Decisions 10,964 896 839 837 786 785 952 910 1,066 1,065 883 1,079 866
Fear Established (Y) 3,161 273 229 221 235 244 313 276 322 308 212 287 241
Fear Not Established (N) 3,826 306 283 306 258 249 313 304 373 393 311 435 295
Closings 3,977 317 327 310 293 292 326 330 371 364 360 357 330

Reasonable Fear Workload Report Monthly Caseload by Office
OCT. 2017 (FY 2018) NOV. 2017 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 862 142 121 5 48 277 50 18 46 29 39 87 856 133 99 17 47 370 33 36 22 4 38 57
Interviews Conducted 579 72 42 0 43 193 37 8 40 78 14 52 528 83 55 1 37 224 25 12 27 1 23 40
All Decisions 896 135 107 0 52 274 46 15 44 120 27 76 839 147 121 1 53 335 35 19 30 1 39 58
Fear Established (Y) 273 31 15 0 18 70 24 0 21 53 10 31 229 40 23 0 15 73 14 4 12 0 18 30
Fear Not Established (N) 306 42 26 0 25 121 15 8 19 25 4 21 283 40 31 1 22 138 13 8 14 1 5 10
Closings 317 62 66 0 9 83 7 7 4 42 13 24 327 67 67 0 16 124 8 7 4 0 16 18

DEC. 2017 (FY 2018) JAN. 2018 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 855 150 90 11 50 319 44 40 44 16 30 61 922 161 106 14 66 326 51 28 50 3 36 81
Interviews Conducted 528 97 51 5 34 214 23 21 31 0 11 41 491 98 25 6 45 190 21 19 32 0 11 44
All Decisions 837 155 101 6 50 339 31 25 34 1 32 63 786 164 80 8 54 302 30 24 36 0 29 59
Fear Established (Y) 221 40 20 1 11 63 10 14 20 0 8 34 235 49 12 2 13 74 7 11 23 0 8 36
Fear Not Established (N) 306 59 31 4 23 146 13 7 12 0 3 8 258 49 14 4 31 118 12 9 9 0 3 9
Closings 310 56 50 1 16 130 8 4 2 1 21 21 293 66 54 2 10 110 11 4 4 0 18 14

FEB. 2018 (FY 2018) MARCH 2018 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 775 102 102 10 54 315 54 21 21 8 34 54 888 140 117 8 56 337 62 37 21 3 33 74
Interviews Conducted 480 83 50 13 38 168 28 13 31 2 23 31 642 90 54 2 34 276 69 15 27 19 17 39
All Decisions 785 141 100 13 52 294 38 19 32 3 41 52 952 123 115 2 53 409 76 30 28 27 33 56
Fear Established (Y) 244 52 19 5 17 69 11 5 21 2 19 24 313 42 28 0 14 122 33 4 17 15 13 25
Fear Not Established (N) 249 45 23 8 19 109 15 7 10 0 5 8 313 42 21 2 19 156 28 12 10 4 6 13
Closings 292 44 58 0 16 116 12 7 1 1 17 20 326 39 66 0 20 131 15 14 1 8 14 18

APRIL 2018 (FY 2018) MAY 2018 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 915 167 95 11 44 410 43 32 19 13 53 28 1,041 142 126 12 51 468 47 28 30 9 41 87
Interviews Conducted 598 126 53 8 32 242 44 27 14 8 17 27 737 145 83 6 35 306 40 22 25 0 23 52
All Decisions 910 172 95 7 43 377 59 36 21 8 51 41 1,066 222 147 9 47 418 59 35 26 0 39 64
Fear Established (Y) 276 58 18 3 16 97 33 9 10 8 8 16 322 79 24 7 12 115 31 5 14 0 12 23
Fear Not Established (N) 304 53 31 3 20 145 15 13 6 0 6 12 373 67 38 1 18 173 16 20 10 0 10 20
Closings 330 61 46 1 7 135 11 14 5 0 37 13 371 76 85 1 17 130 12 10 2 0 17 21

JUNE 2018 (FY 2018) JULY 2018 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 979 138 156 9 67 356 55 30 24 1 92 51 969 186 153 18 50 346 39 18 36 0 67 56
Interviews Conducted 746 143 120 7 42 272 42 13 23 0 51 33 546 89 63 6 39 241 19 14 27 0 31 17
All Decisions 1,065 164 165 5 57 422 62 17 25 0 91 57 883 158 110 10 49 362 30 23 35 0 61 45
Fear Established (Y) 308 57 46 4 17 100 14 3 11 0 31 25 212 40 23 4 6 84 12 1 12 0 20 10
Fear Not Established (N) 393 52 55 1 22 180 28 11 11 0 19 14 311 40 38 4 29 143 8 14 14 0 11 10
Closings 364 55 64 0 18 142 20 3 3 0 41 18 360 78 49 2 14 135 10 8 9 0 30 25

AUGUST 2018 (FY 2018) SEPTEMBER 2018 (FY 2018)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 1,125 187 101 12 48 534 57 22 39 0 64 61 914 149 132 18 56 372 33 24 32 4 45 49
Interviews Conducted 751 126 84 12 31 329 44 15 36 0 40 34 586 112 59 6 25 284 27 12 22 0 25 14
All Decisions 1,079 185 154 12 48 473 44 18 38 0 63 44 866 170 102 10 43 391 32 21 24 0 48 25
Fear Established (Y) 287 45 28 5 8 120 17 4 15 0 26 19 241 48 14 1 7 119 12 4 11 0 19 6
Fear Not Established (N) 435 64 44 7 25 220 19 12 21 0 13 10 295 43 26 5 14 172 11 8 8 0 2 6
Closings 357 76 82 0 15 133 8 2 2 0 24 15 330 79 62 4 22 100 9 9 5 0 27 13

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Reports

Credible Fear Nationality Report Reasonable Fear Nationality Report
October 2017 (FY 2018) October 2017 (FY 2018)
Nationality Receipts Nationality Receipts
1 GUATEMALA 2,126 1 MEXICO 313
2 HONDURAS 1,399 2 HONDURAS 164
3 EL SALVADOR 1,127 3 GUATEMALA 160
4 MEXICO 701 4 EL SALVADOR 149
5 INDIA 599 5 UNKNOWN 24
Credible Fear Nationality Report Reasonable Fear Nationality Report
November 2017 (FY 2018) November 2017 (FY 2018)
Nationality Receipts Nationality Receipts
1 GUATEMALA 2,144 1 MEXICO 302
2 HONDURAS 1,509 2 HONDURAS 209
3 EL SALVADOR 1,222 3 GUATEMALA 161
4 INDIA 551 4 EL SALVADOR 134
5 MEXICO 533 5 BRAZIL 14
Credible Fear Nationality Report Reasonable Fear Nationality Report
December 2017 (FY 2018) December 2017 (FY 2018)
Nationality Receipts Nationality Receipts
1 GUATEMALA 2,247 1 MEXICO 292
2 HONDURAS 1,576 2 GUATEMALA 200
3 EL SALVADOR 1,153 3 HONDURAS 178
4 INDIA 689 4 EL SALVADOR 124
5 MEXICO 467 5 BRAZIL 16
Credible Fear Nationality Report Reasonable Fear Nationality Report
January 2018 (FY 2018) January 2018 (FY 2018)
Nationality Receipts Nationality Receipts
1 GUATEMALA 2,365 1 MEXICO 286
2 HONDURAS 1,948 2 HONDURAS 244
3 EL SALVADOR 1,059 3 GUATEMALA 194
4 INDIA 728 4 EL SALVADOR 146
5 MEXICO 630 5 BRAZIL 14
Credible Fear Nationality Report Reasonable Fear Nationality Report
February 2018 (FY 2018) February 2018 (FY 2018)
Nationality Receipts Nationality Receipts
1 GUATEMALA 1,981 1 MEXICO 285
2 HONDURAS 1,648 2 HONDURAS 175
3 EL SALVADOR 755 3 GUATEMALA 146
4 MEXICO 649 4 EL SALVADOR 103
5 CUBA 325 5 DOMINICAN REPUBLIC 5
Credible Fear Nationality Report Reasonable Fear Nationality Report
March 2018 (FY 2018) March 2018 (FY 2018)
Nationality Receipts Nationality Receipts
1 GUATEMALA 2,044 1 MEXICO 330
2 HONDURAS 1,115 2 HONDURAS 212
3 EL SALVADOR 705 3 GUATEMALA 175
4 MEXICO 868 4 EL SALVADOR 132
5 CUBA 181 5 BRAZIL 12

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April 2018 (FY 2018) April 2018 (FY 2018)
Nationality Receipts Nationality Receipts
1 HONDURAS 2,531 1 MEXICO 283
2 GUATEMALA 1,878 2 HONDURAS 231
3 EL SALVADOR 972 3 GUATEMALA 178
4 MEXICO 613 4 EL SALVADOR 140
5 CUBA 546 5 BRAZIL 12
Credible Fear Nationality Report Reasonable Fear Nationality Report
May 2018 (FY 2018) May 2018 (FY 2018)
Nationality Receipts Nationality Receipts
1 HONDURAS 2,952 1 MEXICO 317
2 GUATEMALA 2,406 2 HONDURAS 242
3 EL SALVADOR 1,245 3 GUATEMALA 218
4 INDIA 686 4 EL SALVADOR 166
5 MEXICO 654 5 BRAZIL 11
Credible Fear Nationality Report Reasonable Fear Nationality Report
June 2018 (FY 2018) June 2018 (FY 2018)
Nationality Receipts Nationality Receipts
1 HONDURAS 3,169 1 MEXICO 307
2 GUATEMALA 2,348 2 HONDURAS 269
3 EL SALVADOR 1,416 3 GUATEMALA 198
4 INDIA 691 4 EL SALVADOR 156
5 CUBA 621 5 BRAZIL 14
Credible Fear Nationality Report Reasonable Fear Nationality Report
July 2018 (FY 2018) July 2018 (FY 2018)
Nationality Receipts Nationality Receipts
1 HONDURAS 1,617 1 MEXICO 328
2 GUATEMALA 1,427 2 HONDURAS 215
3 EL SALVADOR 959 3 GUATEMALA 203
4 INDIA 677 4 EL SALVADOR 151
5 CUBA 480 5 BRAZIL 19
Credible Fear Nationality Report Reasonable Fear Nationality Report
August 2018 (FY 2018) August 2018 (FY 2018)
Nationality Receipts Nationality Receipts
1 HONDURAS 2,636 1 MEXICO 322
2 GUATEMALA 2,035 2 HONDURAS 311
3 INDIA 1,343 3 GUATEMALA 261
4 EL SALVADOR 1,342 4 EL SALVADOR 144
5 CUBA 772 5 NICARAGUA 31
Credible Fear Nationality Report Reasonable Fear Nationality Report
September 2018 (FY 2018) September 2018 (FY 2018)
Nationality Receipts Nationality Receipts
1 HONDURAS 2,541 1 MEXICO 281
2 GUATEMALA 1,728 2 HONDURAS 268
3 EL SALVADOR 1,284 3 GUATEMALA 173
4 INDIA 870 4 EL SALVADOR 119
5 NICARAGUA 604 5 NICARAGUA 24

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Credible Fear Workload Report Summary
FY2019 Total Caseload

Totals Oct‐18 Nov‐18 Dec‐18 Jan‐19 Feb‐19 Mar‐19 Apr‐19 May‐19 Jun‐19 Jul‐19 Aug‐19 Sep‐19
Case Receipts 35,310 9,446 7,918 8,070 9,876
Interviews Conducted 28,847 7,773 7,487 6,933 6,654
All Decisions 32,188 8,593 7,848 8,405 7,342
Fear Established (Y) 25,060 6,902 6,000 6,460 5,698
Fear Not Established (N) 3,403 721 1,028 881 773
Closings 3,725 970 820 1,064 871

October 2018 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 9,446 1,140 385 18 133 6,509 601 138 131 ‐ 138 253
Interviews Conducted 7,773 1,192 273 15 113 5,110 498 111 122 ‐ 120 219
All Decisions 8,593 1,178 259 25 158 5,822 508 149 139 ‐ 151 204
Fear Established (Y) 6,902 842 188 20 108 4,782 435 104 120 ‐ 124 179
Fear Not Established (N) 721 145 22 3 34 400 56 22 13 ‐ 17 9
Closings 970 191 49 2 16 640 17 23 6 ‐ 10 16

November 2018 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 7,918 909 279 23 191 5,486 476 127 81 ‐ 122 224
Interviews Conducted 7,487 934 198 20 168 5,266 412 108 84 ‐ 101 196
All Decisions 7,848 1,109 231 22 151 5,376 436 124 77 ‐ 101 221
Fear Established (Y) 6,000 803 178 20 120 4,108 352 84 67 ‐ 84 184
Fear Not Established (N) 1,028 152 18 ‐ 14 742 49 24 9 ‐ 4 16
Closings 820 154 35 2 17 526 35 16 1 ‐ 13 21

December 2018 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 8,070 1,212 277 13 189 5,363 433 215 61 9 133 165
Interviews Conducted 6,933 840 246 4 151 4,858 411 150 41 ‐ 109 123
All Decisions 8,405 1,000 319 7 210 5,928 448 180 49 ‐ 122 142
Fear Established (Y) 6,460 685 230 3 142 4,670 362 121 41 ‐ 94 112
Fear Not Established (N) 881 152 30 1 31 556 53 26 3 ‐ 14 15
Closings 1,064 163 59 3 37 702 33 33 5 ‐ 14 15

January 2019 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts 9,876 1,434 466 14 164 6,591 498 154 68 81 152 254
Interviews Conducted 6,654 796 258 5 144 4,524 350 147 69 33 122 206
All Decisions 7,342 939 286 5 156 4,914 405 164 78 36 125 234
Fear Established (Y) 5,698 637 172 5 101 3,984 298 118 60 31 98 194
Fear Not Established (N) 773 159 49 ‐ 36 426 46 28 10 2 8 9
Closings 871 143 65 ‐ 19 504 61 18 8 3 19 31

February 2018 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts
Interviews Conducted
All Decisions
Fear Established (Y)
Fear Not Established (N)
Closings

March 2018 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts
Interviews Conducted
All Decisions
Fear Established (Y)
Fear Not Established (N)
Closings

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April 2019 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts
Interviews Conducted
All Decisions
Fear Established (Y)
Fear Not Established (N)
Closings

May 2019 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts
Interviews Conducted
All Decisions
Fear Established (Y)
Fear Not Established (N)
Closings

June 2019 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts
Interviews Conducted
All Decisions
Fear Established (Y)
Fear Not Established (N)
Closings

July 2019 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts
Interviews Conducted
All Decisions
Fear Established (Y)
Fear Not Established (N)
Closings

August 2019 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts
Interviews Conducted
All Decisions
Fear Established (Y)
Fear Not Established (N)
Closings

September 2019 (FY 2019)
Totals ZAC ZAR ZBO ZCH ZHN ZLA ZMI ZNK ZNY ZOL ZSF
Case Receipts
Interviews Conducted
All Decisions
Fear Established (Y)
Fear Not Established (N)
Closings

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Monthly Credible Fear Top 5 Nationalities Received
Fiscal Year 2019

Monthly Credible Fear Monthly Credible Fear
Nationality Report Nationality Report
October‐18 November‐18
Nationality Receipts Nationality Receipts
1 HONDURAS 2,507 1 HONDURAS 1,857
2 GUATEMALA 1,936 2 GUATEMALA 1,482
3 EL SALVADOR 1,337 3 EL SALVADOR 997
4 INDIA 852 4 CUBA 870
5 CUBA 786 5 INDIA 713

Monthly Credible Fear Monthly Credible Fear
Nationality Report Nationality Report
December‐18 January‐19
Nationality Receipts Nationality Receipts
1 HONDURAS 1,853 1 HONDURAS 3,327
2 GUATEMALA 1,695 2 GUATEMALA 1,747
3 CUBA 1,091 3 EL SALVADOR 1,145
4 EL SALVADOR 939 4 CUBA 1,005
5 INDIA 645 5 INDIA 508

Monthly Credible Fear Monthly Credible Fear
Nationality Report Nationality Report
February‐19 March‐19
Nationality Receipts Nationality Receipts
1 1
2 2
3 3
4 4
5 5

Monthly Credible Fear Monthly Credible Fear
Nationality Report Nationality Report
April‐19 May‐19
Nationality Receipts Nationality Receipts
1 1
2 2
3 3
4 4
5 5

Monthly Credible Fear Monthly Credible Fear
Nationality Report Nationality Report
June‐19 July‐19
Nationality Receipts Nationality Receipts
1 1
2 2
3 3
4 4
5 5

Monthly Credible Fear Monthly Credible Fear
Nationality Report Nationality Report
August‐19 September‐19
Nationality Receipts Nationality Receipts
1 1
2 2
3 3
4 4
5 5

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Credible Fear Processing Times
FY 2019 through January 2019

FY2019 - All Credible Fear cases Totals % OCT NOV DEC JAN FEB MAR APR MAY JUNE JUL AUG SEP
Total Decisions Served (Any Period) 28,495 7,633 7,031 7,351 6,480 0 0 0 0 0 0 0 0
Total Completions (Closings + Served) 32,219 8,603 7,851 8,414 7,351 0 0 0 0 0 0 0 0
10 Days or Less 16,775 52.1% 4,934 3,237 4,700 3,904 0 0 0 0 0 0 0 0
Over 10 Days 15,444 47.9% 3,669 4,614 3,714 3,447 0 0 0 0 0 0 0 0
Percent Timely Completed 52.1% 57.4% 41.2% 55.9% 53.1%

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EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
ADJUDICATION STATISTICS
Total Asylum Applications1

180,000

160,000 Filed

140,000

120,000

100,000

80,000

60,000

40,000

20,000 Granted

‐
2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018

Total Receipts :
Fiscal Year Filed Granted
Total Grants Ratio

2008 42,836 8,777 4.88:1
2009 35,811 8,384 4.27:1
2010 32,882 8,234 3.99:1
2011 41,459 9,866 4.2:1
2012 44,562 10,460 4.26:1
2013 43,439 9,690 4.48:1
2014 47,491 8,559 5.54:1
2015 63,562 8,108 7.83:1
2016 82,224 8,684 9.46:1
2017 144,053 10,537 13.67:1
2018 162,060 13,168 12.3:1
2019 (Second Quarter2) 103,658 7,563 13.7:1

Data Generated: April 23, 2019
1 Total (affirmative and defensive) asylum applications filed and total asylum applications granted (initial case completions) in removal,

deportation, exclusion, and asylum-only proceedings.
2 FY 2019 Second Quarter through March 31, 2019.

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Official website of the Department of Homeland Security

U.S. Department of
Homeland Security

Migrant Protection Protocols
Release Date: January 24, 2019

“We have implemented an unprecedented action that will address the urgent
humanitarian and security crisis at the Southern border. This humanitarian
approach will help to end the exploitation of our generous immigration laws. The
Migrant Protection Protocols represent a methodical commonsense approach,
exercising long-standing statutory authority to help address the crisis at our
Southern border.” – Secretary of Homeland Security Kirstjen M. Nielsen

What Are the Migrant Protection Protocols?
The Migrant Protection Protocols (MPP) are a U.S. Government action whereby
certain foreign individuals entering or seeking admission to the U.S. from Mexico
– illegally or without proper documentation – may be returned to Mexico and
wait outside of the U.S. for the duration of their immigration proceedings, where
Mexico will provide them with all appropriate humanitarian protections for the
duration of their stay.

Why is DHS Instituting MPP?
The U.S. is facing a security and humanitarian crisis on the Southern border.
The Department of Homeland Security (DHS) is using all appropriate resources
and authorities to address the crisis and execute our missions to secure the
borders, enforce immigration and customs laws, facilitate legal trade and travel,
counter traffickers, smugglers and transnational criminal organizations, and
interdict drugs and illegal contraband.

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MPP will help restore a safe and orderly immigration process, decrease the
number of those taking advantage of the immigration system, and the ability of
smugglers and traffickers to prey on vulnerable populations, and reduce threats
to life, national security, and public safety, while ensuring that vulnerable
populations receive the protections they need.

Historically, illegal aliens to the U.S. were predominantly single adult males from
Mexico who were generally removed within 48 hours if they had no legal right to
stay; now over 60% are family units and unaccompanied children and 60% are
non-Mexican. In FY17, CBP apprehended 94,285 family units from Honduras,
Guatemala, and El Salvador (Northern Triangle) at the Southern border. Of
those, 99% remain in the country today.

Misguided court decisions and outdated laws have made it easier for illegal
aliens to enter and remain in the U.S. if they are adults who arrive with children,
unaccompanied alien children, or individuals who fraudulently claim asylum. As
a result, DHS continues to see huge numbers of illegal migrants and a dramatic
shift in the demographics of aliens traveling to the border, both in terms of
nationality and type of aliens- from a demographic who could be quickly
removed when they had no legal right to stay to one that cannot be detained
and timely removed.

In October, November, and December of 2018, DHS encountered an average of
2,000 illegal and inadmissible aliens a day at the Southern border. While not an
all-time high in terms of overall numbers, record increases in particular types of
migrants, such as family units, travelling to the border who require significantly
more resources to detain and remove (when our courts and laws even allow
that), have overwhelmed the U.S. immigration system, leading to a “system” that
enables smugglers and traffickers to flourish and often leaves aliens in limbo for
years. This has been a prime cause of our near-800,000 case backlog in
immigration courts and delivers no consequences to aliens who have entered
illegally.

Smugglers and traffickers are also using outdated laws to entice migrants to
undertake the dangerous journey north where on the route migrants report high
rates of abuse, violence, and sexual assault. Human smugglers and traffickers
exploit migrants and seek to turn human misery into profit. Transnational

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criminal organizations and gangs are also deliberately exploiting the situation to
bring drugs, violence, and illicit goods into American communities. The activities
of these smugglers, traffickers, gangs and criminals endanger the security of the
U.S., as well as partner nations in the region.

The situation has had severe impacts on U.S. border security and immigration
operations. The dramatic increase in illegal migration, including unprecedented
number of families and fraudulent asylum claims is making it harder for the U.S.
to devote appropriate resources to individuals who are legitimately fleeing
persecution. In fact, approximately 9 out of 10 asylum claims from Northern
Triangle countries are ultimately found non-meritorious by federal immigration
judges. Because of the court backlog and the impact of outdated laws and
misguided court decisions, many of these individuals have disappeared into the
country before a judge denies their claim and simply become fugitives.

The MPP will provide a safer and more orderly process that will discourage
individuals from attempting illegal entry and making false claims to stay in the
U.S., and allow more resources to be dedicated to individuals who legitimately
qualify for asylum.

What Gives DHS the Authority to Implement MPP?
Section 235 of the Immigration and Nationality Act (INA) addresses the
inspection of aliens seeking to be admitted into the U.S. and provides specific
procedures regarding the treatment of those not clearly entitled to admission,
including those who apply for asylum. Section 235(b)(2)(C) provides that “in the
case of an alien . . . who is arriving on land (whether or not at a designated port
of arrival) from a foreign territory contiguous to the U.S.,” the Secretary of
Homeland Security “may return the alien to that territory pending
a [removal] proceeding under § 240” of the INA.” The U.S. has notified the
Government of Mexico that it is implementing these procedures under U.S. law.

Who is Subject to MPP?
With certain exceptions, MPP applies to aliens arriving in the U.S. on land from
Mexico (including those apprehended along the border) who are not clearly

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admissible and who are placed in removal proceedings under INA § 240. This
includes aliens who claim a fear of return to Mexico at any point during
apprehension, processing, or such proceedings, but who have been assessed
not to be more likely than not to face persecution or torture in Mexico.
Unaccompanied alien children and aliens in expedited removal proceedings will
not be subject to MPP. Other individuals from vulnerable populations may be
excluded on a case-by-case basis.

How Will MPP Work Operationally?
Certain aliens attempting to enter the U.S. illegally or without documentation,
including those who claim asylum, will no longer be released into the country,
where they often fail to file an asylum application and/or disappear before an
immigration judge can determine the merits of any claim. Instead, these aliens
will be given a “Notice to Appear” for their immigration court hearing and will be
returned to Mexico until their hearing date.

While aliens await their hearings in Mexico, the Mexican government has made
its own determination to provide such individuals the ability to stay in Mexico,
under applicable protection based on the type of status given to them.

Aliens who need to return to the U.S. to attend their immigration court hearings
will be allowed to enter and attend those hearings. Aliens whose claims are
found meritorious by an immigration judge will be allowed to remain in the U.S.
Those determined to be without valid claims will be removed from the U.S. to
their country of nationality or citizenship.

DHS is working closely with the U.S. Department of Justice’s Executive Office
for Immigration Review to streamline the process and conclude removal
proceedings as expeditiously as possible.

Will Migrants in MPP Have Access to Counsel?
Consistent with the law, aliens in removal proceedings can use counsel of their
choosing at no expense to the U.S. Government. Aliens subject to MPP will be

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afforded the same right and provided with a list of legal services providers in the
area which offer services at little or no expense to the migrant.

What Are the Anticipated Benefits of MPP?
Every month, tens of thousands of individuals arrive unlawfully at the Southern
Border. MPP will reduce the number of aliens taking advantage of U.S. law and
discourage false asylum claims. Aliens will not be permitted to disappear into
the U.S. before a court issues a final decision on whether they will be admitted
and provided protection under U.S. law. Instead, they will await a determination
in Mexico and receive appropriate humanitarian protections there. This will
allow DHS to more effectively assist legitimate asylum-seekers and individuals
fleeing persecution, as migrants with non-meritorious or even fraudulent claims
will no longer have an incentive for making the journey. Moreover, MPP will
reduce the extraordinary strain on our border security and immigration system,
freeing up personnel and resources to better protect our sovereignty and the
rule of law by restoring integrity to the American immigration system.

Additional Information
• Secretary Nielsen Implementation Memo (/publication/policy-guidance-implementation-
migrant-protection-protocols) (January 25, 2019, PDF)

Topics: Border Security (/topics/border-security) , Immigration and Customs Enforcement (/topics/immigration-
enforcement)

Keywords: Border Security (/keywords/border-security) , immigration enforcement (/keywords/immigration-enforcement) ,
southwest border (/keywords/southwest-border)

Last Published Date: January 29, 2019

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Department of
Homeland Security
Border Security
Metrics Report
May 1, 2018

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Message from Homeland Security
May 1, 2018

The “Department of Homeland Security Border Security Metrics Report” is submitted pursuant
to the Fiscal Year (FY) 2017 National Defense Authorization Act (NDAA), which directs that
“Not later than 180 days after the date of the enactment of this section, the Secretary (of
Homeland Security) shall develop metrics, informed by situational awareness, to measure the
effectiveness of security between ports of entry, at ports of entry, in the maritime environment
and to measure the effectiveness of the aviation assets and operations of Air and Marine
Operations of U.S. Customs and Border Protection.” The Act further directs the Secretary to
annually assess, report, and implement the specified metrics.

The outcome-based performance measures called for by the Act are the most comprehensive,
rigorous set of border security metrics required of the Department of Homeland Security (DHS)
to date. Through previous efforts, DHS has established processes and procedures to collect and
analyze essential data to meet most, but not all, of the Act’s requirements. This initial report
identifies which measures are still unavailable; DHS commits to continuing efforts to produce all
the measures required by the Act no later than submission of the next annual report.

DHS considers this report to be the beginning of a consequential dialogue with Congress and the
American public wherein defensible data create the foundation for discussions of border security
policies and strategies. This initial report focuses on providing data and information on DHS
methodological approaches. In accordance with the Act, future annual reports will include trend
analysis of the measures being reported.

Thank you for your continuing support and commitment to strengthening the operating
effectiveness of DHS.

Pursuant to congressional requirements, this notification is being provided to the following
Members of Congress:

The Honorable Ron Johnson
Chairman, Senate Committee on Homeland Security and Governmental Affairs

The Honorable Claire McCaskill
Ranking Member, Senate Committee on Homeland Security and Governmental Affairs

The Honorable Michael McCaul
Chairman, House Committee on Homeland Security

The Honorable Bennie Thompson
Ranking Member, House Committee on Homeland Security

Inquiries relating to this report may be directed to the DHS Office of Legislative Affairs at (202)
447-5890.

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Sincerely,

James W. McCament
Deputy Under Secretary
Office of Strategy, Policy, and Plans

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DHS Border Security Metrics Report
Table of Contents
I. Legislative Language .....................................................................................................5

II. Introduction....................................................................................................................6

III. SEC. 1092 BORDER SECURITY METRICS ..............................................................9

§ 1092 (b) METRICS FOR SECURING THE BORDER BETWEEN PORTS OF ENTRY ..........................9

§ 1092 (c) METRICS FOR SECURING THE BORDER AT PORTS OF ENTRY....................................33

§ 1092 (d) METRICS FOR SECURING THE MARITIME BORDER ...................................................44

§ 1092 (e) AIR AND MARINE SECURITY METRICS IN THE LAND DOMAIN .................................51

§ 1092 (g)(3)(D) Other Appropriate Information ....................................................................56

IV. Conclusion ...................................................................................................................62

Appendix A – Repeated Trials Model Methodology...............................................................63

Appendix B – Drugs Seizures – All Ports of Entry .................................................................66

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I. Legislative Language
Section 1092 of the FY 2017 National Defense Authorization Act (NDAA), signed into law
December 23, 2016, directs the Secretary of Homeland Security to provide annually to the
Committee on Homeland Security of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the Senate specific “Metrics for Securing the
Border Between Ports of Entry,” “Metrics for Securing the Border At Ports of Entry,” “Metrics
for Securing the Maritime Border,” and “Air and Marine Security Metrics in the Land Domain.”
The NDAA further directs that the Secretary “in accordance with applicable privacy laws, make
data related to apprehensions, inadmissible aliens, drug seizures, and other enforcement actions
available to the public, law enforcement communities, and academic research communities.”

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II. Introduction
As President Donald Trump indicated in Executive Order 13767 “Border Security and
Immigration Enforcement Improvements” (January 25, 2017), border security is critically
important to the national security of the United States. The Department’s ability to measure its
border-security inputs, activities, outputs, and outcomes is essential to the effective and efficient
management of the Department, including management of the new activities and investments
directed by the President’s Executive Orders on border security and immigration enforcement.

Comprehensive and rigorous performance management data provide DHS leadership with the
foundation to support responsible evidence-based decision-making for resource allocation and
investments and for operational and mission management. Further, DHS implementation of this
approach provides a pair of unifying border security goals under the Department’s mission to
secure and manage U.S. borders. As summarized in the DHS Quadrennial Homeland Security
Review (QHSR), the Department’s first two goals under the border security mission area are to
“Secure U.S. Air, Land, and Sea Borders and Approaches” by preventing illegal entry and to
“Safeguard and Expedite Lawful Travel and Trade” by safeguarding key nodes, conveyances,
and pathways, and by managing the risk of people and goods in transit. Ultimately, the border
security metrics described in this report are designed to assess the ability of the Department’s
border security policies and investments to achieve these outcomes.

For analytic purposes, the metrics included in this report may be divided into four categories:
 Inputs: Resources acquired or expended to secure the border. Examples of border
security inputs include the number of U.S. Customs and Border Protection (CBP)
Office of Field Operations (OFO) officers and U.S. Border Patrol (USBP) agents
deployed, miles of fencing and other border infrastructure, and numbers of aircraft
committed to the border security mission.
 Activities: Specific actions taken to secure the border. Examples of border security
activities include illegal border crossers apprehended, travelers admitted or denied
admission at ports of entry (POE), and pounds of narcotics seized.
 Outputs: Immediate results of enforcement activities as they relate to the border
security goals. Examples of border security outputs include the rate at which
intending unlawful border crossers are apprehended or interdicted, and the accuracy
of screening results for travelers and goods at POEs.
 Outcomes: The ultimate impacts of border security policies. As defined by the
QHSR, the most important border security outcomes are the numbers of illegal
migrants and quantities of illegal goods entering the United States (Goal 2.1), and the
ease with which lawful travelers and goods pass through POEs (Goal 2.2).

In general, border security inputs and activities are directly observable and can be measured with
a high degree of reliability. Policymakers have direct control over resource allocation, and data
on inputs are available in budget and acquisitions documents. Operational agencies also track
enforcement activities as part of their case management process. In short, the Department knows
exactly how many agents it deploys, how many miles of fence it erects, how many aliens it
apprehends, and how many travelers it admits. Input and activity measures tend to provide
insight into the level and type of enforcement effort undertaken—what the Department is

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doing—that are useful for workload management and tactical decision-making; but in and of
themselves these metrics typically provide limited insight into the state of border security.

Outcome and output measures often provide more insight than inputs and activities when it
comes to evaluating border security and may be powerful tools for policy and program
evaluation. Yet many output and outcome metrics are difficult to measure directly because
illegal border crossers actively seek to evade detection, and some flows are undetected and
therefore can never be measured directly. This challenge is nearly universal when measuring
illegal activities, which is why law enforcement agencies typically rely on crime reports as
indicators of total criminal activities, for example. Measuring border security outputs and
outcomes is also difficult because of the diversity and complexity of the enforcement mission
along the United States’ 6,000 miles of land borders, 95,471 miles of coastline, and 350 POEs.
Moreover, enforcement outcomes only partially depend on border security policies, since
immigration flows also reflect numerous factors outside enforcement agencies’ control,
including the broader set of U.S. immigration policies and numerous economic, demographic,
and other structural factors.

Historically, DHS and the legacy Immigration and Naturalization Service addressed these
measurement challenges by relying on alien apprehensions (an activity metric) as a proxy
measure of illegal immigration between POEs (an outcome metric). More recently, CBP and
DHS have initiated a number of new estimation strategies to better model unknown flows. These
efforts have focused primarily on border security between POEs in the land domain (NDAA §
1092(b)), a domain that has been identified by Congress and the last several Administrations as a
top enforcement priority. Some of this research remains a work in progress as DHS is not yet
able to validate certain modeling assumptions or to quantify the uncertainty around its new
estimation techniques. In addition, many of the metrics in this report remain limited to the
southwest border. The Department’s future work on border metrics will continue to refine these
new indicators of border security between POEs and expand data collection and methodologies
to the northern border, while also developing additional indicators of border security, including
those identified as incomplete in this report.

Pursuant to the NDAA, this report covers a mix of input, activity, output, and outcome metrics
between POEs, at POEs, in the maritime domain, and with respect to air and marine security in
the land domain. While most of these measures involve data the Department has tracked for
many years, some remain under development or fall outside the scope of the Department’s
existing measurement methodologies. This report includes the following information for each
border security metric:
 Definition of the metric and brief description of how the metric contributes to the
Department’s understanding of border security;
 Discussion of the Department’s current methodology for producing the metric and
related methodological limitations; and
 Available data, including historical data where possible, and brief discussion of
implications for the current state of border security.

The following sections of this report provide this information for each metric directed by the
NDAA. In addition to the specific metrics identified in sections §1092(b) – (e), this report

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includes supplemental measures that inform the Department’s assessment of the state of border
security between POEs, as directed by NDAA § 1092(g)(3)(D).

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III. SEC. 1092 BORDER SECURITY METRICS
§ 1092(b) Metrics for Securing the Border between Ports of
Entry

§ 1092(b)(1)(A)(i) Attempted Unlawful Border Crosser Apprehension
Rate
Definition

In general, the attempted unlawful border crosser apprehension rate is defined as the proportion
of attempted border crossers that is apprehended by USBP:

𝐴𝑝𝑝𝑟𝑒ℎ𝑒𝑛𝑠𝑖𝑜𝑛𝑠
𝐴𝑝𝑝𝑟𝑒ℎ𝑒𝑛𝑠𝑖𝑜𝑛 𝑅𝑎𝑡𝑒 =
𝑈𝑛𝑙𝑎𝑤𝑓𝑢𝑙 𝐸𝑛𝑡𝑟𝑦 𝐴𝑡𝑡𝑒𝑚𝑝𝑡𝑠

While USBP has reliable administrative data on apprehensions, the Department does not have an
exact count of unlawful entry attempts since an unknown number of illegal border crossers evade
detection. As a result of this so-called “denominator problem,” the Department must estimate
the apprehension rate. Current methodologies allow DHS to produce two apprehension rate
estimates:

Model-based Apprehension Rate (ARModel-based) – Based on statistical modeling, the estimated
share of all attempted unlawful border crossers between land POEs that is apprehended.

Observational Apprehension Rate (ARObservational) – Based on direct (unlawful border crossers
observed by USBP) and indirect (residual evidence of a border crosser, i.e. footprints)
observations of attempted unlawful border crossers, the estimated share of observed attempted
unlawful border crossers that is apprehended.

The apprehension rate is an output measure that describes the difficulty of illegally crossing the
border successfully.

A conceptual limitation of apprehension rate data is that they include information about border
apprehensions, but exclude information about turn backs (see section 1092 (b)(1)(A)(iv) for
definition), which are a key element of USBP’s enforcement strategy, with underlying
operational implications. In this sense, measures of the apprehension rate understate USBP’s
overall enforcement success rate. On the other hand, some analysts consider information about
turn backs difficult to interpret since an unknown share of turn backs make additional entry
attempts.

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Methodology and Limitations

Model-based Apprehension Rate

The Model-based Apprehension Rate is based on the repeated trials model (RTM) methodology.
As explained in detail in Appendix A, the RTM methodology yields an estimated partial
apprehension rate (PAR) for southwest border crossers, which focuses on a relatively small share
of attempted unlawful border crossers. Following the calculation of the PAR, the ARModel-based
methodology consists of four additional steps.

First, all attempted unlawful border crossers are divided into two groups, which are labeled
“impactable” and “non-impactable” by traditional DHS enforcement policies. Impactable border
crossers include adults without children who are not asylum seekers and (prior to 2017) are not
from Cuba. Aliens in this group are described as impactable because they are generally subject
to the full range of DHS and Department of Justice (DOJ) enforcement consequences, and
therefore potentially impacted by existing border enforcement. Non-impactable border crossers
include unaccompanied minors, family units, individuals who request asylum, and (prior to
2017) Cubans. Aliens in this group are described as non-impactable because, historically, they
have usually been released into the United States with a Notice to Appear in immigration court
for legal proceedings on a future date, rather than being subject to immediate DHS enforcement
consequences. These aliens are assumed generally to be “non-impactable” by traditional DHS
enforcement activities at the border because even if they are apprehended they are typically
unlikely to be immediately removed or returned.1

Second, the ARModel-based methodology assumes an apprehension rate for each of these two
groups: 1) all attempted unlawful border crossers in the impactable population are assumed to be
apprehended at the partial apprehension rate generated by the RTM methodology; and 2) all
unlawful border crossers in the non-impactable population are assumed to intentionally present
themselves to a USBP agent or OFO officer and therefore to have a 100 percent apprehension
rate. Notably, these assumptions do not reflect the actual behavior of all border crossers, as
noted below, but they serve to construct a probability model.

Third, the Partial Apprehension Rate is used to calculate the total number of impactable aliens
making illegal entry attempts. The methodology assumes (in the previous step) that all
impactable aliens are apprehended at the PAR rate generated by the RTM methodology:

𝐴𝑝𝑝𝑟𝑒ℎ𝑒𝑛𝑠𝑖𝑜𝑛𝑠𝐼𝑚𝑝𝑎𝑐𝑡𝑎𝑏𝑙𝑒
𝑃𝐴𝑅 =
𝐴𝑡𝑡𝑒𝑚𝑝𝑡𝑠𝐼𝑚𝑝𝑎𝑐𝑡𝑎𝑏𝑙𝑒

1
Cubans were considered “non-impactable” between 1995 and January 2017 because they were routinely granted
parole into the United States if they reached U.S. soil, under the wet-foot/dry-foot policy. The Obama
Administration terminated the special parole component of the wet-foot/dry-foot policy in January 2017.

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Mathematically, this equation can be re-arranged to define the total number of impactable aliens
making an illegal entry attempt as follows:

𝐴𝑝𝑝𝑟𝑒ℎ𝑒𝑛𝑠𝑖𝑜𝑛𝑠𝐼𝑚𝑝𝑎𝑐𝑡𝑎𝑏𝑙𝑒
𝐴𝑡𝑡𝑒𝑚𝑝𝑡𝑠𝐼𝑚𝑝𝑎𝑐𝑡𝑎𝑏𝑙𝑒 =
𝑃𝐴𝑅

Since non-impactable aliens are assumed to have a 100% apprehension rate, the number of entry
attempts of non-impactable aliens is equal to the number of their apprehensions.

Finally, the Total Apprehension Rate is calculated as a weighted average of the total numbers of
impactable and non-impactable aliens attempting unlawful entry times their respective
apprehension rates:

(𝐴𝑡𝑡𝑒𝑚𝑝𝑡𝑠𝐼𝑚𝑝𝑎𝑐𝑡𝑎𝑏𝑙𝑒 ∗ 𝑃𝐴𝑅) + (𝐴𝑡𝑡𝑒𝑚𝑝𝑡𝑠𝑁𝑜𝑛−𝑖𝑚𝑝𝑎𝑐𝑡𝑎𝑏𝑙𝑒 ∗ 100%)
𝐴𝑅𝑀𝑜𝑑𝑒𝑙−𝑏𝑎𝑠𝑒𝑑 =
(𝐴𝑡𝑡𝑒𝑚𝑝𝑡𝑠𝐼𝑚𝑝𝑎𝑐𝑡𝑎𝑏𝑙𝑒 + 𝐴𝑡𝑡𝑒𝑚𝑝𝑡𝑠𝑁𝑜𝑛−𝑖𝑚𝑝𝑎𝑐𝑡𝑎𝑏𝑙𝑒 )

The current ARModel-based methodology makes a number of assumptions that cannot be fully
validated. First, the ARModel-based methodology builds on the RTM’s partial apprehension rate,
and so incorporates all of the RTM modeling assumptions and associated limitations discussed in
Appendix A. In addition, the current ARModel-based methodology also assumes: that the entire
cohort of border crossers can be divided into impactable and non-impactable groups, that the
entire impactable group is apprehended at the same rate as RTM aliens included in the PAR
analysis, and that the entire non-impactable group is apprehended 100 percent of the time. Each
of these additional assumptions introduces potential biases into the estimated apprehension rate.

The Department has not precisely quantified the impact of these assumptions on the ARModel-based
estimates. For these reasons, DHS considers the ARModel-based methodology to be a work in
progress. DHS is working to refine the ARModel-based methodology to address these limitations
and to more precisely describe their impact on the ARModel-based estimate. The estimated
apprehension rates reported here may be updated in the future as the Department continues to
refine the model-based estimation methodology.

Observational Apprehension Rate

The Observational Apprehension Rate is calculated as the ratio of USBP apprehensions to the
sum of apprehensions and observed (directly or indirectly) got aways:

𝐴𝑝𝑝𝑟𝑒ℎ𝑒𝑛𝑠𝑖𝑜𝑛𝑠
𝐴𝑅𝑂𝑏𝑠𝑒𝑟𝑣𝑎𝑡𝑖𝑜𝑛𝑎𝑙 =
𝐴𝑝𝑝𝑟𝑒ℎ𝑒𝑛𝑠𝑖𝑜𝑛𝑠 + 𝐺𝑜𝑡 𝐴𝑤𝑎𝑦𝑠

“Got aways” are defined as subjects at the southwest border who, after making an illegal entry,
are not turned back or apprehended, and are no longer being actively pursued by USBP agents.

Since 2014, USBP has implemented a standard, southwest border-wide methodology for
determining when to report a subject as a got away. Some subjects are observed directly as
evading apprehension or turning back; others are acknowledged as got aways or turn backs after

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agents follow evidence that indicate entries have occurred such as foot sign (i.e. tracks), sensor
activations, interviews with apprehended subjects, camera views, and communication between
and among stations and sectors. The scope of these data includes all areas of the southwest land
border at or below the northernmost law enforcement posture (typically a USBP checkpoint)
within a given area of responsibility, and those individuals apprehended less than 30 days after
entering the United States.

In an effort to maintain reliable best practices, command staff at all southern border stations
ensure all agents are aware of and utilize proper definitions for apprehensions, got aways and
turn backs at their respective stations. They also ensure the necessary communication takes
place between and among sectors and stations to minimize double-counting when subjects cross
more than one station’s area of responsibility. In addition to station-level safeguards, designated
USBP Headquarters components validate data integrity by utilizing various data quality reports.

The primary limitation to ARObservational is that the denominator excludes an unknown number of
unobserved got aways. Over the past several years, DHS has invested millions of dollars in
technology that has facilitated the ability to see and detect more at the border. Improvements in
situational awareness give DHS an ever-increasing, real-time ability to understand how much
illegal activity agents are encountering at the immediate border and their ability to respond. As a
result, despite the fact that overall border entries are substantially lower today than in any
previous fiscal year, agents are currently interdicting slightly lower percentages of the total
known flow. This observation reflects USBP’s increased domain awareness—i.e., that through
technological advances, the agency has improved its awareness of illegal entry attempts (known
got aways)—rather than experienced a drop in enforcement effectiveness. Increasing situational
awareness narrows the gap between the known and unknown flow, and puts DHS in a position to
build ever better observational estimates of border security. The Department will continue to
refine these observational estimates and is currently working on a methodology to estimate their
statistical reliability.

An additional methodological limitation is that the estimated count of got aways aggregates
potentially subjective observations from thousands of individual agents. USBP has taken a
number of steps to establish reliable turn back and got away methodologies, as discussed above.

Available Data and Discussion

Table 1 provides the estimated model-based apprehensions rate for FY 2003 – FY 2016 and the
estimated observational apprehension rate for FYs 2006-2016, the years for which these data are
available.

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Table 1: Model-Based and Observational Apprehension Rates, FY 2000 – FY 2016
Fiscal Year Model-based Observational
Apprehension Rate Apprehension Rate
2003 34.1 NA
2004 37.0 NA
2005 39.1 NA
2006 39.2 63.5
2007 40.2 64.1
2008 44.6 67.7
2009 47.2 70.7
2010 46.6 74.4
2011 46.1 79.4
2012 48.0 77.5
2013 51.0 70.8
2014 65.5 74.8
2015 63.5 76.7
2016 64.8 79.4

Since FY 2003, the model-based apprehension rate has climbed from less than 35 percent to
nearly 65 percent in FY 2016. These increases reflect a higher apprehension rate for
“impactable” border crossers as well as an increase in the share of border crossers who are “non-
impactable” and therefore assumed to be apprehended 100 percent of the time.

The observational apprehension rate has also shown improvements since FY 2006. Despite its
limitations, the upward trend in ARObservational is noteworthy because it independently reinforces
the upward trend observed in the model-based estimate. Moreover, with increasing situational
awareness along the border during this period, it is likely that CBP detects an increasing share of
total got aways over time. As a result, the upward trend in ARObservational likely under-estimates
the actual increase in the total share of attempted border crossers that is apprehended.

§ 1092(b)(1)(A)(ii) Detected unlawful entries

Definition

Detected unlawful entries – The total number of attempted unlawful border crossers between
land POEs who are directly or indirectly observed or detected by USBP.

Detected unlawful entries is an outcome measure that describes the numbers of migrants detected
crossing or attempting to cross the border unlawfully. Detected unlawful entries is not a
comprehensive outcome measure since it excludes undetected unlawful entries, as discussed
below. The ratio of detected to undetected unlawful entries, also discussed below, is an output
measure that describes the Department’s ability to detect unlawful entries.

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Methodology and Limitations

The number of detected unlawful entries is calculated as the sum of turn backs, got aways, and
apprehensions. Turn backs are defined as subjects who, after making an illegal entry into the
United States, return to the country from which they entered, not resulting in an apprehension or
got away. Got aways are defined as subjects who, after making an illegal entry, are not turned
back or apprehended, and are no longer being actively pursued by USBP agents. Apprehensions
are defined as removable aliens arrested by USBP.

Turn backs and got aways are observational estimates; USBP records total and by-sector
estimates of turn backs and got aways based on direct and indirect observations as described
above. Apprehensions are calculated based on nationwide DHS administrative data and are not
limited to the southwest border; USBP apprehension data are considered a reliable count of
apprehensions.

The primary limitation to detected unlawful entries is that this metric incorporates turn back and
got away estimates that aggregate potentially subjective observations from thousands of
individual agents. USBP has taken a number of steps to address this problem by establishing
consistent and reliable turn back and got away methodologies, as discussed above.

Available Data and Discussion

Figure 1 depicts available data on estimated detected unlawful entries for FY 2006 – FY 2016,
the years for which data are available. As the figure indicates, estimated detected unlawful
entries (the sum of apprehensions, turn backs, and got aways) fell from 2.0 million to 624
thousand during this period, a 69 percent decrease.

Figure 1: Estimated Detected Unlawful Entries Nationwide Between POEs, FY 2006 – FY 2016
2,500,000

2,000,000

1,500,000

1,000,000

500,000

0
2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

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§ 1092(b)(1)(A)(iii) Estimated undetected unlawful entries

Definition

Undetected unlawful entries – An estimate of the number of attempted unlawful border crossers
between land POEs who are not directly or indirectly observed or detected by USBP. By
assumption, undetected unlawful entries evade apprehension and enter the United States
unlawfully.

Undetected unlawful entries is an outcome measure that describe the numbers of migrants who
completely evade detection and successfully enter the United States unlawfully. Undetected
unlawful entries is not a comprehensive outcome measure since it excludes detected unlawful
entries, discussed above. The ratio of detected to total unlawful entries (i.e., the probability of
detection) is an output measure that describes the Department’s ability to detect unlawful entries,
as discussed below. At present, this methodology only exists for the southwest land border
between ports of entry. Research is underway on methods to produce this estimate for the
northern border.

Methodology and Limitations

Currently, the Department’s best available methodology for estimating undetected unlawful
entries builds on the repeated trials model (RTM) methodology to produce a model-based
estimate of total successful unlawful entries. The estimated number of undetected unlawful
entries is calculated as the difference between the model-based estimate of total successful
unlawful entries and the estimated number of got aways (i.e., detected successful unlawful
entries):

𝑈𝑛𝑑𝑒𝑡𝑒𝑐𝑡𝑒𝑑 𝑈𝑛𝑙𝑎𝑤𝑓𝑢𝑙 𝐸𝑛𝑡𝑟𝑖𝑒𝑠
= 𝑇𝑜𝑡𝑎𝑙 𝑆𝑢𝑐𝑐𝑒𝑠𝑠𝑓𝑢𝑙 𝑈𝑛𝑙𝑎𝑤𝑓𝑢𝑙 𝐸𝑛𝑡𝑟𝑖𝑒𝑠 − 𝐷𝑒𝑡𝑒𝑐𝑡𝑒𝑑 𝐺𝑜𝑡 𝐴𝑤𝑎𝑦𝑠

As explained in detail in Appendix A, the RTM methodology yields an estimated partial
apprehension rate (PAR) for southwest border crossers. Following the calculation of the PAR,
the methodology for estimating total successful unlawful entries consists of three additional
steps.

First, as in the calculation of the model-based apprehension rate discussed above, all attempted
unlawful border crossers are divided into “impactable” and “non-impactable” groups. Second,
the PAR is used to estimate the odds of successful entry for aliens within the impactable
population group.2 Third, the number of successful unlawful entries is estimated based on the
odds of successful entry among this group times the apprehension count among impactable
aliens. Because non-impactable aliens are assumed to be apprehended 100 percent of the time,
only impactable aliens contribute to the estimated count of total successful unlawful entries:

2 1−𝑃𝐴𝑅
Mathematically, 𝑜𝑑𝑑𝑠 𝑜𝑓 𝑠𝑢𝑐𝑐𝑒𝑠𝑠𝑓𝑢𝑙 𝑒𝑛𝑡𝑟𝑦 = ( ).
𝑃𝐴𝑅

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𝑇𝑜𝑡𝑎𝑙 𝑆𝑢𝑐𝑐𝑒𝑠𝑠𝑓𝑢𝑙 𝑈𝑛𝑙𝑎𝑤𝑓𝑢𝑙 𝐸𝑛𝑡𝑟𝑖𝑒𝑠
= 𝑂𝑑𝑑𝑠 𝑜𝑓 𝑆𝑢𝑐𝑐𝑒𝑠𝑠𝑓𝑢𝑙 𝐸𝑛𝑡𝑟𝑦 ∗ 𝐴𝑝𝑝𝑟𝑒ℎ𝑒𝑛𝑠𝑖𝑜𝑛𝑠 𝑜𝑓 𝐼𝑚𝑝𝑎𝑐𝑡𝑎𝑏𝑙𝑒 𝐴𝑙𝑖𝑒𝑛𝑠

The estimated number of undetected unlawful entries is derived from the observational estimate
of detected unlawful entries, with limitations discussed above, and the model-based estimate of
total successful unlawful entries, which in turn is derived from the RTM methodology and the
model-based apprehension rate, with additional limitations discussed above. DHS is working to
refine both the observational and model-based methodologies and to more precisely describe the
impact of these limitations on estimates of total and undetected unlawful entries.

Available Data and Discussion

Figure 2 depicts available data on estimated undetected unlawful entries for FY 2006 – FY 2016,
the years for which data are available. As the figure indicates, estimated undetected unlawful
entries fell from approximately 851,000 to nearly 62,000 during this period, a 93 percent
decrease.

Figure 2: Estimated Southwest Border Undetected Unlawful Entries, FY 2006 – FY 2016

§ 1092(b)(1)(A)(iv) Turn backs

Definition

Turn backs –An estimate of the number of subjects who, after making an illegal entry into the
United States, return to the country from which they entered, not resulting in an apprehension or
got away.

Turn backs are an activity measure that USBP uses for tactical decision-making.

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Turn backs also contribute to several other border security metrics, including Detected Unlawful
Entries, discussed above, and the Unlawful Border Crossing Effectiveness Rate, discussed
below.

Methodology and Limitations

Turn backs are a nationwide observational estimate; USBP records total and by-sector estimates
of turn backs based on direct and indirect observations as described above.

The primary limitation to detected turn backs is that the estimate aggregates potentially
subjective observations from thousands of individual agents. USBP has taken a number of steps
to address this problem by establishing consistent and reliable turn back and got away
methodologies, as discussed above. In addition, some unlawful border crossers may enter the
United States to drop off drug loads or to act as decoys to lure agents away from a certain area
and then return to Mexico, and therefore may be misidentified as turn backs.3

Available Data and Discussion

Table 2: Southwest Border Turn Backs between POEs, FY 2007 – FY 2016
FY2007 FY2008 FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016

254,490 204,176 178,566 150,005 121,007 121,079 156,581 147,025 105,670 108,601

The number of turn backs has decreased by more than 57 percent since FY 2007. This decrease
is consistent with numerous other between-POE metrics than suggest a decrease in flow over the
past 10 years.

§ 1092(b)(1)(A)(v) Got aways

Definition

Got aways – An estimate of the number of subjects who, after making an illegal entry, are not
turned back or apprehended, and are no longer being actively pursued by USBP agents.

Total Successful Unlawful Entries – An estimate of the total number of subjects who cross the
border unlawfully and who enter the United States without being apprehended.

Methodology and Limitations

Got Aways

3
U.S. Government Accountability Office, “Border Patrol: Goals and Measures Not Yet in Place to Inform Border
Security Status and Resource Needs,” GAO-13-330T, February 26, 2013, p. 15.

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Got aways are an observational estimate; USBP records total and by-sector estimates of got
aways based on direct and indirect observations as described above. While got aways are
recorded by USBP at all borders, got aways in this section refer to the southwest border between-
ports of entry only.

The primary methodological limitation of got aways is that the estimate aggregates potentially
subjective observations from thousands of individual agents. USBP has taken a number of steps
to address this problem by establishing consistent and reliable turn back and got away
methodologies, as discussed above.

Conceptually, the got aways metric is limited to observed (directly or indirectly) flows; it is not a
comprehensive measure of successful unlawful entries. USBP’s recent work to increase
situational awareness, including through the use of Geospatial Intelligence, gives the Department
growing confidence in its got away count. As situational awareness continues to improve,
observed got aways will become an increasingly comprehensive measure of successful unlawful
entries. USBP and DHS are working to refine USBP’s observational methodology and to more
precisely describe the gap between observed and unobserved got aways.

Total Successful Unlawful Entries

The current methodology for estimating total successful unlawful entries is based on the repeated
trials model (RTM) methodology. As explained in detail in Appendix A, the RTM methodology
yields an estimated partial apprehension rate (PAR) for southwest border crossings, which
focuses on a relatively small share of attempted unlawful border crossers. Following the
calculation of the PAR, the methodology for estimating total successful unlawful entries consists
of three additional steps, as described above: attempted border crossers are divided into
impactable and non-impactable groups; the PAR is used to estimate the odds of successful entry;
and the number of successful unlawful entries is estimated based on the odds of successful entry
among this group times the number of apprehensions of impactable aliens.

The RTM methodology to estimate the PAR confronts a number of methodological limitations,
as discussed in Appendix A. Each of the additional assumptions involved in using the PAR to
estimate total successful unlawful entries introduces additional methodological limitations and
potential biases. DHS is working to refine the model-based methodology and to more precisely
describe the impact of these limitations on estimates of total successful unlawful entries.

Available Data and Discussion

Figure 3 depicts southwest border between-ports of entry detected got aways for FY 2006 – FY
2016 and estimated total successful unlawful entries for FY 2000 – FY 2016, the years for which
data are available. As the figure illustrates, estimated total successful unlawful entries declined
from 1.8 million to 168,000 between FY 2000 and FY 2016, a 91 percent decrease. Estimated
got aways declined from 615,000 to 106,000 between FY 2006 and FY 2016, an 83 percent
decrease.

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Figure 3: Southwest Border Got Aways and Estimated Total Successful Unlawful Entries
between POEs, FY 2000 – FY 2016

Notably, the model-based estimate of total successful unlawful entries declined at a faster rate
than observed got aways, with the model based estimate falling 89 percent between FY 2006 and
FY 2016 (the period for which both data series are available), versus an 83 percent decrease for
detected got aways during this period. Relatedly, the two series have substantially converged
over this time period, with observed got aways accounting for 42 percent of total estimated
successful unlawful entries in FY 2006 versus 63 percent in FY 2016. These facts suggest that
USBP detects an increasingly comprehensive share of all attempted unlawful border crossers.

§ 1092(b)(1)(B) A measurement of situational awareness achieved in
each U.S. Border Patrol sector

Definition

Situational awareness – Knowledge and understanding of current unlawful cross-border activity.

Situational awareness is an output measure that describes the Department’s awareness of
unlawful cross-border activity.

Methodology and Limitations

DHS is in the process of developing a defensible, analytically sound measure for situational
awareness for each USBP sector that meets the intent of the NDAA § 1092(b)(1)(B). DHS
anticipates this measure will be reported in the annual report due to Congress in November 2020.
In the interim, a number of the Department’s existing metrics are informed by the Department’s

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awareness of migrants and other threats in the near border regions (CBP has operational
jurisdiction within 100 miles of U.S. borders) and in the approaches [See § 1092(b)(1)(A)(ii to v)
and § 1092(b)(1)(D)].

§ 1092(b)(1)(C) Unlawful Border Crossing Effectiveness Rate

Definition

Unlawful Border Crossing Effectiveness Rate – The estimated percentage of all attempted
unlawful border crossers that is interdicted by USBP, where interdictions include apprehensions
and turn backs.

The Unlawful Border Crossing Effectiveness Rate is an output measure that describes how
difficult it is for unlawful border crossers to enter the United States without being interdicted.

Methodology and Limitations

The Unlawful Border Crossing Effectiveness Rate is calculated by dividing the number of
apprehensions and turn backs between land POEs by the sum of the number of apprehensions,
turn backs, and total estimated successful unlawful entries:

𝐴𝑝𝑝𝑟𝑒ℎ𝑒𝑛𝑠𝑖𝑜𝑛𝑠 + 𝑇𝑢𝑟𝑛 𝑏𝑎𝑐𝑘𝑠
𝐸𝑓𝑓𝑒𝑐𝑡𝑖𝑣𝑒𝑛𝑒𝑠𝑠 𝑅𝑎𝑡𝑒 =
𝐴𝑝𝑝𝑟𝑒ℎ𝑒𝑛𝑠𝑖𝑜𝑛𝑠 + 𝑇𝑢𝑟𝑛 𝑏𝑎𝑐𝑘𝑠 + 𝑆𝑢𝑐𝑐𝑒𝑠𝑠𝑓𝑢𝑙 𝑢𝑛𝑙𝑎𝑤𝑓𝑢𝑙 𝑒𝑛𝑡𝑟𝑖𝑒𝑠

The NDAA calls for an effectiveness rate that incorporates USBP’s observational estimate of
turn backs and DHS’s current model-based estimate of total estimated successful unlawful
entries. This measure would confront all of the methodological challenges associated with each
of its component parts, as discussed above.

The Unlawful Border Crossing Effectiveness Rate is conceptually similar to USBP’s Interdiction
Effectiveness Rate (IER), which USBP reports in its Annual Performance Report pursuant to the
Government Performance and Results Modernization Act (GPRMA) of 2010. The Unlawful
Border Crossing Effectiveness Rate differs from the IER in that the former includes total
estimated successful unlawful entries in its denominator and IER includes known got aways.

The Unlawful Border Crossing Effectiveness Rate is also conceptually similar to the estimated
apprehension rate, with the difference being that the Effectiveness Rate includes data on turn
backs and apprehensions while the apprehension rate focuses exclusively on apprehensions. An
advantage to examining the effectiveness rate, rather than the apprehension rate, is that
effectiveness rate more completely captures USBP’s actual enforcement practices, which include
efforts to turn back border crossers, in addition to efforts to apprehend them. On the other hand,
some analysts consider the effectiveness rate (along with IER) to be an ambiguous indicator of
enforcement success since an unknown share of turn backs make additional entry attempts.

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Despite its shortcomings as an analytic tool, to date, only the IER is available for analysis at the
sector level. While a southwest border-wide estimate has been developed, sector-level estimates
of unlawful entries and attempts have not yet been produced and validated by DHS. These
estimates are projected to be available for the 2019 report.

Available Data and Discussion

Table 3: Interdiction Effectiveness Rate by Southwest Border Sector, FY 2014 – FY 2016
Rio
Big EL EL San
Del Rio, Laredo, Grande Tucson, Yuma,
Bend, Centro, Paso, Diego,
TX TX Valley, AZ AZ
TX CA TX CA
TX
FY2014 72% 76% 85% 92% 74% 80% 89% 75% 91%
FY2015 77% 73% 83% 90% 74% 82% 88% 80% 95%
FY2016 70% 79% 81% 89% 78% 83% 89% 82% 96%

IER often vary from year to year and by sector. One point of note for FY 2016 is the 96 percent
IER for Yuma, AZ, which often scores the highest rating. Del Rio reported the largest increase
in all sectors, climbing six percentage points in FY 2016 to 79 percent. Big Bend reported the
largest loss in FY 2016, decreasing by seven percentage points to 70 percent. Due to the small
number of attempted and successful entries along the Northern Border, a Northern Border IER
has not been developed.

§ 1092(b)(1)(D) Probability of Detection Rate

Definition

Estimated probability of detection - The estimated probability that DHS detects attempted
unlawful border crossers between land POEs.

The estimated probability of detection is an output measure that describes the ability of
attempted unlawful border crossers to enter without being detected. Because successful unlawful
entry estimate is available only for the southwest border between-ports of entry, data in this
section refer exclusively to this region.

Methodology and Limitations

The estimated probability of detection is defined as the ratio of detected unlawful entries to
estimated total unlawful entries:

𝐷𝑒𝑡𝑒𝑐𝑡𝑒𝑑 𝑈𝑛𝑙𝑎𝑤𝑓𝑢𝑙 𝐸𝑛𝑡𝑟𝑖𝑒𝑠
𝑃𝑟𝑜𝑏𝑎𝑏𝑖𝑙𝑖𝑡𝑦 𝑜𝑓 𝐷𝑒𝑡𝑒𝑐𝑡𝑖𝑜𝑛 =
𝐸𝑠𝑡𝑖𝑚𝑎𝑡𝑒𝑑 𝑇𝑜𝑡𝑎𝑙 𝑈𝑛𝑙𝑎𝑤𝑓𝑢𝑙 𝐸𝑛𝑡𝑟𝑖𝑒𝑠

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As described above, the number of detected unlawful entries is calculated as the sum of turn
backs, got aways, and apprehensions, a mix of observational estimates and administrative data.
The primary limitation to detected unlawful entries is that this metric incorporates turn back and
got away estimates that aggregate potentially subjective observations from thousands of
individual agents. USBP has taken a number of steps to address this problem by establishing
consistent and reliable turn back and got away methodologies, as discussed above.

Estimated total unlawful entries is calculated as the sum of turn backs, apprehensions, and the
model-based estimate of total successful unlawful entries. As described above, the methodology
for estimating total successful unlawful entries begins with the RTM methodology’s partial
apprehension rate, discussed in detail in Appendix A. Following the calculation of the PAR, the
methodology for estimating total successful unlawful entries consists of three additional steps:
attempted border crossers are divided into impactable and non-impactable groups; the PAR is
used to estimate the odds of successful entry; and the number of successful unlawful entries is
estimated based on the odds of successful entry among this group times the apprehension count
among impactable aliens.

Available Data and Discussion

Figure 4 depicts the estimated probability of detection for FY 2006 – FY 2016, the years for
which data are available. As the figure indicates, the estimated probability increased from 70
percent in FY 2006 (when an estimated 2.0 million unlawful border crossers were detected out of
an estimated 2.9 million total unlawful border crossers) to 91 percent in FY 2016 (611,000
detected out of 673,000 total estimated unlawful border crossers).

Figure 4: Southwest Border Between-Ports of Entry Estimated Probability of Detection, FY
2006 – FY 2016

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§ 1092(b)(1)(E) Apprehensions in Each U.S Border Patrol Sector

Definition

Apprehension - The arrest of a removable alien by DHS USBP.

Apprehensions are activity measures that provide information used for program planning and
operational purposes, among other uses. Historically, the Department has also used
apprehensions as a proxy indicator of illegal entries, an outcome measure.

For many years, DHS and the legacy Immigration and Naturalization Service also used
apprehensions as a proxy indicator of successful unlawful border crossings, i.e., an outcome
measure. Over the long-term and across multiple locations, apprehensions are a problematic
indicator of enforcement outcomes since the relationship between apprehensions and
successful unlawful entries depends on the apprehension rate, which changes over time and
may also differ by location. But in the short-term and in a fixed geographic area, DHS continues
to view changes in apprehensions as a useful outcome indicator because short term changes in
apprehensions are more likely to be driven by changes in the number of unlawful border
crossing attempts than by changes in the apprehension rate.

Methodology and Limitations

Apprehensions are recorded in administrative record systems with a unique identifier created for
each apprehension. USBP’s count of apprehensions is considered reliable.

Apprehensions displayed below are event counts, meaning each apprehension of the same alien
in a fiscal year is counted separately. These data do not represent a count of unique aliens
apprehended.

Available Data and Discussion

Table 4: Southwest Border Apprehension by USBP sector, FY 2007 – FY 2016
Sector FY2007 FY2008 FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016
Big Bend,
TX 5,536 5,391 6,360 5,288 4,036 3,964 3,684 4,096 5,031 6,366
Del Rio,
TX 22,920 20,761 17,082 14,694 16,144 21,720 23,510 24,255 19,013 23,078
EL
Centro,
CA 55,883 40,961 33,521 32,562 30,191 23,916 16,306 14,511 12,820 19,448
EL Paso,
TX 75,464 30,312 14,999 12,251 10,345 9,678 11,154 12,339 14,495 25,634
Laredo,
TX 56,714 43,668 40,569 35,287 36,053 44,872 50,749 44,049 35,888 36,562
Rio
Grande 73,430 75,473 60,989 59,766 59,243 97,762 154,453 256,393 147,257 186,830

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Valley,
TX
San
Diego, CA 152,460 162,390 118,721 68,565 42,447 28,461 27,496 29,911 26,290 31,891
Tucson,
AZ 378,239 317,696 241,673 212,202 123,285 120,000 120,939 87,915 63,397 64,891
Yuma, AZ 37,992 8,363 6,951 7,116 5,833 6,500 6,106 5,902 7,142 14,170
Total 858,638 705,015 540,865 447,731 327,577 356,873 414,397 479,371 331,333 408,870

Apprehension numbers often vary considerably from year to year and by sector. Since FY 2013,
the Rio Grande Valley (RGV) sector has displaced the Tucson sector as the leader in
apprehensions, with over 120,000 more apprehensions than the next leading sector in FY 2016.
Apprehensions were up across the board in FY 2016, with each sector reporting increases. The
largest numeric increase was seen in RGV with almost 40,000 more apprehensions in FY 2016
than in FY 2015; however, the largest percent increase was seen in Yuma, where the
apprehension count roughly doubled. Tucson and San Diego, historically major sectors for
apprehensions, continue to report considerably lower numbers than earlier years shown in the
chart, with Tucson reporting 64,891 apprehensions in FY 2016, as compared to 378,239 in FY
2007.

§ 1092(b)(1)(F) Apprehensions of Unaccompanied Alien Children

Definition

Unaccompanied alien child (UAC) - one who has no lawful immigration status in the United
States; has not attained 18 years of age, and with respect to whom; 1) there is no parent or legal
guardian in the United States; or 2) no parent or legal guardian in the United States is available to
provide care and physical custody [6 U.S.C. § 279(g)(2)].

UAC apprehensions are an activity measure that provide information used for program planning
and operational purposes, among other uses. Historically, the Department has also used
apprehensions as a proxy indicator of illegal entries, an outcome measure.

Methodology and Limitations

Apprehensions are recorded in administrative record systems with a unique identifier created for
each apprehension. Since 2008, USBP systems have included a flag for children who are found
to meet the legal definition of a UAC. USBP’s count of apprehensions is considered reliable, but
some outside analysts have raised questions about agents’ ability to reliably distinguish among
older children and young adults (e.g., to distinguish between 17 and 18 year-olds) and to confirm
whether children are traveling alone or in family groups.4

4
OIG-10-12 Department of Homeland Security Office of Inspector General. Age Determination Practices for
Unaccompanied Alien Children in ICE Custody. November 2009

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USBP began collecting data on UACs in FY 2008; data are unavailable for earlier years.

Data and Discussion

Tables 5a – 5d provide counts of UAC apprehensions by citizenship and by USBP sector for FY
2008 through FY 2016, the years for which data are available.

Table 5a: Total Southwest Border Apprehensions of UACs, FY 2008 – FY 2016
Sector FY2008 FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016
Big Bend, TX 84 147 197 189 168 125 256 839 951
Del Rio, TX 834 1,085 1,014 1,113 1,618 2,135 3,268 2,285 2,689
EL Centro,
337 673 448 457 498 434 662 668 1,379
CA
EL Paso, TX 1,139 889 1,011 697 659 744 1,029 1,662 3,885
Laredo, TX 799 1,901 1,570 1,608 2,658 3,795 3,800 2,459 2,953
Rio Grande
2,523 3,835 4,977 5,236 10,759 21,553 49,959 23,864 36,714
Valley, TX
San Diego,
888 3,028 980 549 524 656 954 1,084 1,553
CA
Tucson, AZ 1,271 7,606 7,998 5,878 7,239 9,070 8,262 6,019 6,302
Yuma, AZ 47 276 216 222 280 247 351 1,090 3,266
Total 7,922 19,440 18,411 15,949 24,403 38,759 68,541 39,970 59,692

Table 5b: Southwest Border Apprehensions of UACs from Mexico, FY 2008 – FY 2016
Sector FY2008 FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016
Big Bend, TX 59 127 180 183 137 104 102 73 118
Del Rio, TX 396 851 772 801 911 1,082 821 798 867
EL Centro,
306 631 404 427 418 328 278 397 610
CA
EL Paso, TX 1,067 841 947 663 616 654 698 823 1,149
Laredo, TX 118 1,308 886 1,022 1,369 1,652 1,354 1,299 1,515
Rio Grande
365 2,401 2,787 3,009 4,361 6,366 7,081 3,243 3,389
Valley, TX
San Diego,
879 2,990 950 523 480 598 740 823 851
CA
Tucson, AZ 79 6,582 6,485 4,893 5,405 6,241 4,394 3,412 3,293
Yuma, AZ 33 258 204 192 246 194 166 144 134
Total 3,302 15,989 13,615 11,713 13,943 17,219 15,634 11,012 11,926

Table 5c: Southwest Border Apprehensions of UACs from Northern Triangle Countries, FY
2008 – FY 2016
Sector FY2008 FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016
Big Bend, TX 23 19 16 6 29 18 151 760 824
Del Rio, TX 423 229 238 307 701 1,044 2,422 1,479 1,806
EL Centro,
28 42 42 29 70 104 379 269 641
CA
EL Paso, TX 65 46 58 32 40 80 290 824 2,685
Laredo, TX 627 523 598 528 1,228 2,028 2,329 1,113 1,382
Rio Grande
2,051 1,389 2,057 2,030 6,229 14,696 42,020 20,260 32,935
Valley, TX

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San Diego,
9 37 28 25 44 48 209 255 625
CA
Tucson, AZ 1,091 938 1,326 927 1,753 2,731 3,727 2,497 2,904
Yuma, AZ 14 15 8 28 34 36 178 930 3,091
Total 4,331 3,238 4,371 3,912 10,128 20,785 51,705 28,387 46,893
Note: Northern Triangle Countries refers to El Salvador, Guatemala, and Honduras.

Table 5d: Southwest Border Apprehensions of UACs from All Other Countries, FY 2008 – FY
2016
Sector FY2008 FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016
Big Bend, TX 2 1 1 0 2 3 3 6 9
Del Rio, TX 15 5 4 5 6 9 25 8 16
EL Centro,
3 0 2 1 10 2 5 2 128
CA
EL Paso, TX 7 2 6 2 5 10 41 15 51
Laredo, TX 54 70 86 58 61 115 117 47 56
Rio Grande
107 45 133 199 169 491 858 361 390
Valley, TX
San Diego,
0 1 2 1 0 10 5 6 77
CA
Tucson, AZ 101 86 187 58 82 98 141 110 105
Yuma, AZ 0 3 4 2 0 17 7 16 41
Total 289 213 425 326 335 755 1,202 571 873

After averaging 15,000 per year from FY 2008 – FY 2011, UAC apprehensions increased an
average of more than 60 percent per year in FY 2012 – FY 2014, peaking at 68,541 in FY 2014.
UAC numbers returned to their FY 2013 level in FY 2015, but then climbed to 59,692 in FY
2016. More than half of all UACs were reported in RGV (36,714), most of whom were from the
Northern Triangle countries of Honduras, Guatemala, and El Salvador (32,935).

§ 1092(b)(1)(G) Apprehensions of Family Units

Definition

Family unit - the number of individuals apprehended with a family member by the USBP. For
example, a mother and child apprehended together are counted as two family units.

Family unit apprehensions (FMUA) are activity measures that provide information used for
program planning and operational purposes, among other uses. Historically, the Department has
also used apprehensions as a proxy indicator of illegal entries, an outcome measure.

Methodology and Limitations

Apprehensions are recorded in administrative record systems with a unique identifier created for
each apprehension. USBP’s count of apprehensions is considered reliable, but agents may not
always be able to reliably identify family units.

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USBP began collecting data on family units in FY 2012; data on family unit apprehensions are
unavailable for earlier years.

Data and Discussion

Table 6a: Total Southwest Border Apprehensions of FMUAs, FY 2015 – FY 2016
Rio
Big EL San
Del Rio, EL Paso, Laredo, Grande Tucson, Yuma,
Bend, Centro, Diego, Total
TX TX TX Valley, AZ AZ
TX CA CA
TX
FY2012 76 349 1,127 265 1,825 2,625 1,373 3,254 222 11,116
FY2013 102 711 365 298 1,688 7,265 1,576 2,630 220 14,855
FY2014 176 4,950 630 562 3,591 52,326 1,723 3,812 675 68,445
FY2015 807 2,141 675 1,220 1,372 27,409 1,550 2,930 1,734 39,838
FY2016 1,051 3,549 1,593 5,664 1,640 52,006 2,863 3,139 6,169 77,674

Table 6b: Southwest Border Apprehensions of FMUAs from Mexico, FY 2015 – FY 2016
Rio
Big EL San
Del Rio, EL Paso, Laredo, Grande Tucson, Yuma,
Bend, Centro, Diego, Total
TX TX TX Valley, AZ AZ
TX CA CA
TX
FY2012 56 218 699 241 1,623 1,555 1,325 2,940 194 8,851
FY2013 90 177 294 267 1,116 1,690 1,343 2,216 163 7,356
FY2014 61 141 260 213 779 1,832 1,213 1,057 83 5,639
FY2015 40 174 196 188 713 1,326 854 696 89 4,276
FY2016 38 229 163 224 518 1,392 346 487 84 3,481

Table 6c: Southwest Border Apprehensions of FMUAs from Northern Triangle Countries, FY
2015 – FY 2016
Rio
Big EL San
Del Rio, EL Paso, Laredo, Grande Tucson, Yuma,
Bend, Centro, Diego, Total
TX TX TX Valley, AZ AZ
TX CA CA
TX
FY2012 10 120 12 19 175 989 31 130 3 1,489
FY2013 8 522 40 23 522 5,354 39 254 19 6,781
FY2014 100 4,753 337 291 2,767 49,790 351 2,553 392 61,334
FY2015 764 1929 470 1,002 602 25,296 617 2,127 1,556 34,363
FY2016 1,005 3,233 1,380 4,634 827 49,919 1,615 2,496 5,298 70,407
Note: Northern Triangle Countries refers to El Salvador, Guatemala, and Honduras.

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Table 6d: Southwest Border Apprehensions of FMUAs from All Other Countries, FY 2015 –
FY 2016
Rio
Big EL San
Del Rio, EL Paso, Laredo, Grande Tucson, Yuma,
Bend, Centro, Diego, Total
TX TX TX Valley, AZ AZ
TX CA CA
TX
FY2012 10 11 416 5 27 81 17 184 25 776
FY2013 4 12 31 8 50 221 194 160 38 718
FY2014 15 56 33 58 45 704 159 202 200 1,472
FY2015 3 38 9 30 57 787 79 107 89 1,199
FY2016 8 87 50 806 295 695 902 156 787 3,786

From 2015 to 2016, FMUA numbers increased considerably across all sectors. Similar to the
UAC trend observed in these two years, total FMUAs nearly doubled in 2016, and more than
doubled in some sectors. Yuma reported only 1,734 FMUAs in 2015 but 6,169 in 2016; El Paso
saw a similar trend. Like the UACs, most FMUAs (70,407 of 77,674) were from Northern
Triangle countries. In fact, despite the overall increase in FMUAs, the total count of FMUAs
from Mexico decreased by 19 percent in 2016.

§ 1092(b)(1)(H) Between the Ports Illicit Drugs Seizure Rate

Definition

Between the Ports Illicit Drug Seizure Rate – For each type of illicit drug seized by USBP
between POEs, the ratio of the amount of illicit drugs seized in any fiscal year relative to the
average amount seized in the immediately preceding five FYs.

The Illicit Drug Seizure Rate is an activity measure, which compares trends in activity data over
time.

Methodology and Limitations

Between-the-ports drug seizure data are obtained from USBP administrative records. These data
are considered reliable.

Pursuant to the definition of the Illicit Drug Seizure Rate directed by NDAA § 1092 (b)(1)(H),
the drug seizure rate describes the ratio of each year’s seizures relative to illicit drugs seizures in
the preceding five years; the measure does not describe the rate at which illicit drugs are seized.

Available Data and Discussion

Table 7: Illicit Drugs Seized Relative to Preceding Five Years (“Illicit Drug Seizure Rate”)
between POEs, FY 2012 – FY 2016

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Drug Type FY2012 FY2013 FY2014 FY2015 FY2016

Rate 101% 100% 83% 81% 72%
Marijuana
Lbs seized 2,299,864 2,430,123 1,922,545 1,538,307 1,294,052
Rate 117% 53% 57% 206% 71%
Cocaine
Lbs seized 12,161 4,596 4,554 11,220 5,473
Rate 151% 142% 142% 141% 129%
Heroin
Oz seized 6,873 9,212 9,691 8,282 9,062
Rate 228% 160% 149% 215% 168%
Methamphetamines
Lbs seized 3,715 3,580 3,930 6,443 8,224

Drug seizure trends varied in FY 2016 by type of illicit drug. Marijuana and cocaine both saw
declines in FY 2016 as compared to the previous five years (72 percent and 71 percent of the
previous five year average, respectively). This is a continuous trend for marijuana seizures,
which have been on the decline since FY 2014. Cocaine seizures had been declining until FY
2015, in which year a resurgence in seizures was observed. Heroin and methamphetamines
seizures continue to increase, as they have in each year at least since FY 2012.

§ 1092(b)(1)(I) Estimates of the Impact of the Consequence Delivery
System on Recidivism

Definition

Consequence Delivery System (CDS) – a process implemented by USBP to uniquely evaluate
each apprehended subject and to identify the most effective and efficient consequences to deliver
to impede and deter further illegal activity.

Recidivist Rate – The share of subjects apprehended by USBP who are apprehended more than
once in the same fiscal year.

The annual recidivist rate is an output measure that offers insight into what share of deportees
are deterred from making additional unlawful entry attempts, though not accounting for
unknown attempts/entries. USBP use the annual recidivist rate as one of its 15 metrics of the
effectiveness of enforcement consequences under the CDS.

Methodology and Limitations

Since 2007, USBP has collected biometric data (including fingerprints and digital photographs)
from most unlawful border crossers it apprehends. These data are used to identify subjects
apprehended more than once in a given fiscal year. USBP data on re-apprehensions in the same
fiscal year is considered reliable. The annual recidivist rate is defined as the number of unique
subjects apprehended multiple times in a fiscal year divided by the total number of unique
subjects in the fiscal year:

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𝑁𝑢𝑚𝑏𝑒𝑟 𝑜𝑓 𝑈𝑛𝑖𝑞𝑢𝑒 𝑆𝑢𝑏𝑗𝑒𝑐𝑡𝑠 𝐴𝑝𝑝𝑟𝑒ℎ𝑒𝑛𝑑𝑒𝑑 𝑀𝑢𝑙𝑡𝑖𝑝𝑙𝑒 𝑇𝑖𝑚𝑒𝑠
𝐴𝑛𝑛𝑢𝑎𝑙 𝑅𝑒𝑐𝑖𝑑𝑖𝑣𝑖𝑠𝑡 𝑅𝑎𝑡𝑒 =
𝑇𝑜𝑡𝑎𝑙 𝑁𝑢𝑚𝑏𝑒𝑟 𝑜𝑓 𝑈𝑛𝑖𝑞𝑢𝑒 𝑆𝑢𝑏𝑗𝑒𝑐𝑡𝑠

The annual recidivism rate is a valid indicator of the probability that deportees make subsequent
attempts at re-apprehensions in that a drop in the annual recidivism rate very likely reflects a
drop in unlawful re-entry attempts. The measure has the further advantages that USBP can
calculate annual recidivism based strictly on its own apprehension data and that it can reliably be
calculated at the end of each fiscal year. These features make the annual recidivism rate a useful
measure for USBP performance management.

Nonetheless, as the U.S. Government Accountability Office (GAO) has argued, if the goal is to
accurately describe the share of deportees who make additional unlawful entry attempts, the
current measure of recidivism could be strengthened in at least two ways: 1) count re-
apprehensions based on the date on which a subject is removed or returned, rather than that the
date of apprehension; 2) count re-apprehensions that occur within a fixed period of time defined
by the subject’s repatriation date, rather than by the fiscal year.5 When based on a one year
window, these refinements yield a more expansive definition of the recidivism rate that DHS
refers to as the “Total One-Year Recidivism Rate”; future versions of this report will include
estimates of the impact of CDS on both the annual recidivism rate and a longer-term recidivism
rate.

Available Data and Discussion

Table 8: CDS Recidivism Rate Change by Sector
Average Annual Average Annual
Southwest Border Year CDS
Recidivism Rate in Recidivism Rate in 3
Sector Implemented
3 Prior Years1 Subsequent Years2
San Diego FY 2012
38% 31%
El Centro FY 2012 42% 36%
Yuma FY 2012 18% 16%
Tucson FY 2012
26% 20%
El Paso FY 2012 10% 10%
Big Bend FY 2012 11% 7%
Del Rio FY 2012
8% 6%
Laredo FY 2012 14% 12%
Rio Grande Valley FY 2012 15% 12%
1
Refers to the 3 years prior to CDS being implemented in that sector
2
Refers to the 3 years after CDS was implemented in that sector

With the exception of the El Paso sector, where rates remained unchanged, the annual recidivism
rates dropped across the board following the implementation of CDS. While changes in

5
U.S. Government Accountability Office, “Border Patrol: Actions Needed to Improve Oversight of Post-
Apprehension Consequences,” GAO-17-66, January 2017, pp. 13-17.

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recidivism should not be interpreted solely as a function of CDS given that border enforcement is
a complex, dynamic system, some sectors showed noticeable improvements in recidivism rates,
such as the Tucson and El Centro sectors which saw six percent drops after CDS, and San Diego
which saw a seven percent drop. Other sectors, which already had the lowest recidivism rates,
saw smaller improvements. Recidivism data are not available to calculate the impact of CDS at
the Northern Border due to the small number of attempted illegal entries along the Northern
Border.

§ 1092(b)(1)(J) Examination of Each Consequence under the CDS

Definition

Consequence – An administrative, programmatic, or criminal justice process imposed on a
subject following the subject’s apprehension. CDS is designed to identify, for any given subject,
the ideal consequences to deliver to impede and deter further illegal activity.

Methodology and Limitations

USBP’s current methodology for assessing the CDS involves analyzing the effectiveness and
efficiency of each enforcement consequence. One of the key effectiveness metrics is the annual
recidivism rate, which is calculated separately for each enforcement consequence.

Under the CDS, USBP specifically targets aliens with more extensive records of unlawful border
crossing behavior for consequences that are designed to have a greater deterrent impact. For
example, the Target Enforcement Initiative utilizes partnerships with the U.S. Department of
Justice to prioritize and prosecute individuals with six or more apprehensions. As a result,
differences in recidivism rates by enforcement consequence may reflect differences in the
propensity of the targeted population to make further re-entry attempts, in addition to the
possible impact of each consequence on recidivism.

An additional limitation of currently-available data is that they are based on apprehension data
for a given fiscal year, not repatriation data. Depending on the consequence and the timing of
the apprehension, some individuals may not be repatriated to their country of origin during the
fiscal year of their apprehension, and therefore may not have an opportunity to attempt re-entry.
DHS and CBP are working to refine their analysis of CDS and will seek to address these
limitations in the FY 2018 version of this report.

Available Data and Discussion

Table 9: Annual Recidivism Rate by Consequence, FY 2012 – FY 2016

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Consequence FY2012 FY2013 FY2014 FY2015 FY2016
Voluntary Return 27.06% 28.61% 30.50% 27.03% 24.55%
Warrant of Arrest/
3.83% 1.44% 0.60% 0.89% 0.41%
Notice to Appear
Expedited Removal 16.44% 16.66% 17.54% 18.08% 15.46%
Reinstatement of
15.88% 16.42% 15.80% 15.41% 16.62%
Removal
Alien Transfer Exit
23.82% 25.48% 28.63% 27.17% 28.80%
Program
Criminal
Consequence 10.30% 9.26% 8.24% 6.67% 8.36%
Program
Standard
9.09% 10.17% 9.18% 8.79% 8.16%
Prosecution
Operation Against
Smugglers Initiative
10.24% 18.04% 18.25% 22.97% 30.93%
on Safety and
Security

While these data should be interpreted with caution for the reasons identified above, some trends
are noteworthy. For example, the more punitive consequence programs such as CCP and
standard prosecution generally showed lower recidivism rates (8.36 percent, 8.16 percent) than
less punitive programs like voluntary return (24.55 percent) or expedited removal (15.46
percent). At the same time, recidivism rates are notably high among individuals in the Operation
Against Smugglers Initiative on Safety and Security (OASISS) consequence group; this finding
likely reflects the fact that the population selected for OASISS—suspected smugglers—routinely
make multiple crossing attempts.

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§ 1092(c) Metrics for Securing the Border at Ports of Entry

§ 1092(c)(1)(A)(i) Total Inadmissible Travelers at Ports of Entry

Definition

Inadmissible Alien – An alien seeking admission at a POE who does not meet the criteria in the
INA for admission.

Known Inadmissible Aliens – Aliens seeking admission at a POE who are found by OFO to be
inadmissible.

Total Attempted Inadmissible Aliens – The estimated number of inadmissible aliens who attempt
to enter the United States. Total attempted inadmissible aliens include known inadmissible
aliens and successful unlawful entries at POEs.

Inadmissible aliens and known inadmissible aliens are activity measures that describes OFO
officer workload. Known inadmissible aliens may also be used as a proxy indicator of total
attempted inadmissible aliens, which is an outcome measure.

Methodology and Limitations

Known inadmissible aliens are recorded in OFO administrative records with a unique identifier
created for each inadmissibility determination. OFO’s count of known inadmissible aliens is
considered reliable.

The Department does not currently have a methodology in place to estimate the number of
attempted inadmissible aliens. DHS and CBP are working to establish a methodology to produce
such an estimate in time to be included in the 2018 State of the Border Report.

Available Data and Discussion

Table 10: Known Inadmissible Aliens at Ports of Entry, FY 2007 - FY2016
FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016
203,310 224,770 225,149 231,306 216,355 197,362 205,920 224,927 254,637 292,614

From the recent low in FY 2012, the number of aliens identified as inadmissible at POEs has
continue to climb. In FY 2016, 292,614 aliens were deemed inadmissible at POEs, the highest
number this decade. The FY 2016 count represents an increase of 48 percent over the 197,362
inadmissible aliens in FY 2012.

§ 1092(c)(1)(A)(ii) Refusal and Interdiction Rates at Ports of Entry

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Definition

Refusal Rate – The share of all passengers seeking admission at a port of entry that is found
inadmissible. Refusal Rate is an activity measure that describes OFO officer workload.

Port of Entry Interdiction Rate – The share of attempted inadmissible aliens that is found
inadmissible. POE Interdiction Rate is an output measure that describes the difficulty of
entering the United States unlawfully through a port of entry.

Methodology and Limitations

The refusal rate is calculated by dividing known inadmissible aliens (i.e., aliens found
inadmissible by OFO officers at POEs) by the total number of passengers seeking admission at
ports of entry:

𝐼𝑛𝑎𝑑𝑚𝑖𝑠𝑠𝑖𝑏𝑖𝑙𝑖𝑡𝑦 𝐷𝑒𝑡𝑒𝑟𝑚𝑖𝑛𝑎𝑡𝑖𝑜𝑛𝑠
𝑅𝑒𝑓𝑢𝑠𝑎𝑙 𝑅𝑎𝑡𝑒 =
𝐴𝑟𝑖𝑣𝑎𝑙𝑠 𝑎𝑡 𝑃𝑂𝐸𝑠

Data on inadmissibility determinations and total passengers is obtained from OFO administrative
records; these data are considered reliable.

The Department does not have a methodology in place to calculate total attempted inadmissible
aliens, and therefore currently cannot calculate a POE interdiction rate.

Available Data and Discussion

Table 11: Inadmissible Aliens and Refusal Rate at Ports of Entry FY 2007 - FY2016
Passengers Inadmissible Refusal Rate
FY 2007 407,677,568 203,310 0.05%
FY 2008 401,481,071 224,770 0.06%
FY 2009 361,191,781 225,149 0.06%
FY 2010 352,980,607 231,306 0.07%
FY 2011 340,364,884 216,355 0.06%
FY 2012 351,551,007 197,362 0.06%
FY 2013 362,333,988 205,920 0.06%
FY 2014 374,974,750 224,927 0.06%
FY 2015 383,200,225 254,637 0.07%
FY 2016 390,592,745 292,614 0.07%

Since 2012, the number of passengers at POEs has increased 11 percent (from 352 to 391
million), while the number of known inadmissible passengers has increased 48 percent (from
197,000 to 293,000), resulting in a 33 percent increase in the refusal rate (from under 0.06

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percent to over 0.07 percent). This increase may indicate that inadmissible aliens represent an
increasingly large share of passengers, that OFO is better able to detect inadmissible aliens, or
both. With an FY 2016 refusal rate of .0749 percent, however, the number of known
inadmissible aliens is still a very small share of passengers coming through POEs.

§ 1092(c)(1)(A)(iii) Unlawful Entries at Ports of Entry
Definition

Successful Unlawful Entries - The estimated number of inadmissible aliens who unlawfully enter
the United States through POEs.

Successful unlawful entries is an outcome measure.

Methodology and Limitations

The Department does not currently have a methodology to reliably estimate the number of
successful unlawful entries through POEs. DHS and CBP are working to establish a
methodology to produce such an estimate in time to be included in the 2018 State of the Border
Report.

§ 1092(c)(1)(B) Illicit Drugs Seized at Ports of Entry
Definition

Drug Seizures – Seizures of illicit drugs by CBP officers at POEs.

Drug Seizures are an activity measure. Drug seizures may also be interpreted as a proxy
indicator of illicit drug inflows through POEs, an outcome measure.

Methodology and Limitations

Drugs seizure data are obtained from OFO administrative records, measured in kilograms. These
data are considered reliable.

Available Data and Discussion

Drug seizures at POEs is contained in Appendix B. A total of 367,612.58 kilos of illicit drugs
were seized at POEs in FY 2016, which represents a nine percent decline from a total of
400,719.44 kilos in FY 2015, but is still higher than the previous five-year average of 352,399.84
kilos.

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§ 1092(c)(1)(C) Port of Entry Illicit Drug Seizure Rate

Definition

Port of Entry Illicit Drug Seizure Rate – For each type of illicit drug seized by OFO at POEs, the
ratio of the amount of illicit drugs seized in any fiscal year to the average of the amount seized in
the immediately preceding five fiscal years.

Methodology and Limitations

At-ports-of-entry drug seizure data are obtained from OFO administrative records. These data
are considered reliable.

Pursuant to the definition of the illicit drug seizure rate directed by NDAA § 1092(c)(1)(C), the
drug seizure rate describes recent seizure trends (i.e., current year compared to five previous
years); the measure does not describe the rate at which illicit drugs are seized.

The Drug Seizure Rate is an activity measure, which compares trends in activity data over time.
Drug seizures may also be interpreted as a proxy indicator of illicit drug inflows through POEs,
an outcome measure.

Available Data and Discussion

Table 12: Port of Entry Illicit Drug Seizure Rate, FY 2012 – FY 2016
Drug Type FY2012 FY2013 FY2014 FY2015 FY2016
Marijuana Rate 88% 81% 77% 118% 102%
Kg seized 219,344 195,270 180,686 250,637 219,960
Cocaine Rate 73% 82% 71% 87% 103%
Kg seized 7,294 7,413 6,234 7,190 8,209
Heroin Rate 209% 208% 168% 174% 106%
Kg seized 1,125 1,475 1,556 1,984 1,483
Methamphetamines Rate 233% 263% 200% 200% 203%
Kg seized 4,888 7,503 8,285 10,861 14,279

Unlike recent trends in drug seizures between POEs, marijuana and cocaine seizures at POEs
held fairly constant in FY 2016 as compared to the previous five-year average (two percent and
three percent increase respectively). Notably, however, seizures of marijuana and cocaine have
fallen in recent years, and the volume of seizures in FY 2016 were still relatively low by recent
historical standards. Heroin and methamphetamines, however, continued their increases into FY
2016, with heroin increasing six percent over a constantly growing five year average and
methamphetamines more than doubling its previous five year average each of the past five years.

§ 1092(c)(1)(D) Major Infractions at Ports of Entry
Definition

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Major Infractions – OFO considers major infractions to include all arrests, including arrests
related to terrorism, drugs, criminal alien [including zero tolerance (ZT) arrests], currency,
merchandise, agriculture products, National Crime Information Center (NCIC) hits, and Terrorist
Screening Database (TSDB) hits, among others.

Known Major Infractions – The number of major infractions interdicted by OFO.

Undetected Major Infractions – The estimated number of major infractions not interdicted by
OFO.

Known Major Infractions are an activity measure. Undetected major infractions are an outcome
measure.

Methodology and Limitations

These data are recorded in OFO administrative records and are considered reliable.

The Department does not currently have a methodology to estimate the number of undetected
major infractions.

Available Data and Discussion

Table 13: Known Major Infractions at Ports of Entry, FY 2007 – FY 2016
Passengers Major Infractions Infraction Rate
FY 2007 407,677,568 90,718 0.02%
FY 2008 401,481,071 96,330 0.02%
FY 2009 361,191,781 108,941 0.03%
FY 2010 352,980,607 112,446 0.03%
FY 2011 340,364,884 120,491 0.04%
FY 2012 351,551,007 111,185 0.03%
FY 2013 362,333,988 112,471 0.03%
FY 2014 374,974,750 106,354 0.03%
FY 2015 383,200,225 112,562 0.03%
FY 2016 390,592,745 113,665 0.03%

OFO officers interdicted 113,665 passengers based on major infractions at ports of entry in FY
2016. The number of major infractions was almost unchanged from FY 2015, and similar to the
number each year since FY 2010. With the number of passengers increasing slightly over this
period, the infraction rate fell slightly from 0.04 percent in FY 2011 to 0.03 percent in FY 2016.
Over the last 10 years (i.e., since FY 2007), both the number of total seizures and the infraction
rate both showed modest increases.

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§ 1092(c)(1)(E) Cocaine Seizure Effectiveness Rate
Definition

Cocaine seizure effectiveness rate – In consultation with the Office of National Drug Control
Policy (ONDCP), the amount of cocaine seized by OFO at land POEs compared to the total
estimated flow of cocaine through land POEs.

Cocaine seizures is an activity measure. Seizures may also be used as a proxy indicator of total
attempts to import cocaine, an outcome measure. Seizure effectiveness rate (i.e., cocaine seized
as compared to the total estimate cocaine flow) is an output measure.

Methodology and Limitations

Seizure data is obtained from OFO administrative records and is considered reliable. Estimates
of the total cocaine flow are provided by ONDCP. The U.S. Government does not have an
estimate of the share of the total cocaine flow that passes through land POEs, but the U.S. Drug
Enforcement Agency’s National Drug Threat Assessment states that the southwest border
remains the key entry point for the majority of the cocaine entering the Unites States.

Available Data and Discussion

Table 14: Estimates of Cocaine Seizure at Land Ports of Entry FY 2012 – FY 2016
FY2012 FY2013 FY2014 FY2015 FY2016
Estimated Flow 479 475 479 684 1,142
Seizures 45,260.18 39,074.63 41,311.88 38,145.00 52,900.67
Seizure
Effectiveness
Rate 4.2% 3.7% 3.9% 2.5% 2.1%
Notes: Estimated flow is measure in metric tons. Cocaine seizure estimates reported in pounds. Estimated cocaine
flows are based on the IACM mid-point estimate for 2012-2014 and based on confirmed and substantiated CCDB
estimate for 2015-2016.

§ 1092(c)(1)(F)(i) Average Wait Times and Traffic Volume
Definition

Average Wait Time – Average minute wait time for vehicles to pass through a land POE.

Private Vehicle Volume – The number of private vehicles passing through a land POE per year.

Commercial Vehicle Volume – The number of commercial vehicles passing through a land POE
per year.

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Average wait time is an output measure describing the ease of crossing the border. Vehicle
volume is an activity measure.

Methodology and Limitations

OFO calculates average wait times for each POE by a variety of methods, some automated using
Radio Frequency Identification and others manually using either surveying or line of sight
determinations. For manual wait time determinations, OFO officers record average minute wait
times in the Border Wait Time tool, for automated wait times the time is recorded automatically
every 30 minutes. Wait time data is not available for all POEs, particularly small northern
border POEs with negligible wait times. OFO leadership directed POEs to provide wait times in
March 2014. The policy is currently under review and new guidance will be issued in the near
future to account for the improvements in automation and recording.

OFO records counts of Personally Owned Vehicles (POV) as administrative data in its
Operations Management Report (OMR); these data are considered reliable.

Available Data and Discussion

Data on Average Wait Times, and counts of private and commercial vehicles for each land POE
for which data are available are contained in Appendix C. Appendix C contains law enforcement
sensitive information and has been redacted from this public report.

§ 1092(c)(1)(F)(ii) Infrastructure Capacity Utilization Rate

Definition

Infrastructure Capacity Utilization Rate – Average number of vehicles processed per booth, per
hour at each land POE.

The Infrastructure Capacity Utilization Rate is an output measure that describes OFO’s ability to
process traffic relative to the physical and staffing capacity.

Methodology and Limitations

Data are obtained from OFO administrative records. The data comes from CBP systems with
booth hours and throughput as calculated fields. The hours serve as a proxy measure for the
number of CBP officer hours spent processing and are measured on a one-for-one basis.
Throughput is then calculated by summing all vehicles that passed through a site in a year and
then dividing it by total booth hours.

Available Data and Discussion

Infrastructure capacity utilization rate data is contained in Appendix D. Appendix D contains law
enforcement sensitive information and has been redacted from this public report.

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Each OFO land POE is unique in terms of staffing authorizations and physical layouts. Land
POEs may be physically constrained by the available space around them and so unable to expand
to yield greater capacity. Land POEs in the United States are also impacted by the adjoining
Canadian and Mexican land POE management decisions on staffing and physical layouts. Both
the OFO Mission Support Facilities Division and the CBP Office of Facilities and Asset
Management are working on establishing methods to determine resourcing decisions for land
POEs.

Infrastructure capacity utilization rate varies by location and year. In general, the southern
border reports higher utilization rates because of higher flows through the POEs. The overall
utilization rate increased in FY 2016 over the previous year, due to a combination of increased
efficiency and increased traffic demand for a fixed number of processing lanes. CBP processed
an average of 47.4 vehicles per lane, per hour in FY 2016 (34.6 on the northern border; 54.4 on
the southern border).

Table 15: Average infrastructure capacity utilization rate FY 2012 – FY 2016
Border FY 2012 FY 2013 FY 2014 FY 2015 FY 2016
Northern
Border 36.2 38.2 39 35.7 34.6
Southern
Border 47.7 46.8 49.1 53 54.4
Total 43.1 43.5 45.3 46.6 47.4

§ 1092(c)(1)(F)(iii) Secondary Examination Rate
Definition

Secondary Examination Rate – Percentage of passengers subject to secondary inspection at each
land POE.

Secondary Examination Rate is an activity measure that describes OFO workload and practices.

Methodology and Limitations

Data are obtained from OFO administrative records. Secondary examination rate is determined
by the recorded number of passengers sent for secondary inspection versus the total number of
recorded passengers.

Available Data and Discussion

Frequency of secondary inspections data is contained in Appendix E. Appendix E contains law
enforcement sensitive information and has been redacted from this public report.

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Secondary inspection rates vary considerably among the various POEs. Among the northern
border POEs, the rate of secondary inspection declined from 8.52 percent in FY 2012 to 7.30
percent in FY 2016. The southern border Secondary Inspection Rate remained stable over the
past four years, with 11.88 percent of passengers receiving secondary inspection in FY 2016.
This number is down from the prior three year average from FY 2010 to FY 2012, when closer
to 15 percent of passengers received secondary inspection. The highest secondary inspection
rates were northern border POEs such as St. John (32.30 percent) and Vanceboro (29.83
percent). Certain smaller land POEs have high secondary examination rates due to low volume
of traffic that allow officers increased time to thoroughly examine a larger share of passengers.

§ 1092(c)(1)(F)(iv) Secondary Examinations Effectiveness Rate
This measure is under review. OFO does not presently measure the effectiveness of secondary
examinations at the enterprise level.

§ 1092(c)(1)(G)(i) Number of Potentially “High-Risk” Cargo Containers
Definition

Potentially High-Risk Cargo Containers – Shipping containers carrying cargo shipments
identified as potentially high-risk using National Targeting Center (NTC) security criteria.

Potentially High-Risk Cargo Containers is an activity measure that describes OFO workload.

Methodology and Limitations

All international cargo shipments coming to the United States via the sea, land, and air modes of
transportation are screened by the NTC using the Automated Targeting System (ATS) to identify
those shipments that may be considered potentially high-risk according to NTC security criteria.
Any cargo container carrying a shipment identified as potentially high-risk is identified for
immediate review and assessed or scanned prior to lading at a Container Security Initiative (CSI)
member foreign port of origin or at arrival at a U.S. POE. Assessing, resolving, and when
required, scanning and physically inspecting cargo found to be potentially high-risk ensures the
safety of the public and minimizes the impact to the trade through the effective use of risk-
focused targeting.

The NTC periodically refines, improves, and revises the security criteria applied by the
Automated Targeting System, which in turn improves the focus of the risk assessment applied
and somewhat reduces the overall number of cargo shipments identified as potentially high-risk.
This process of continual review and refinement in the security criteria applied and ATS
methodology has led to significant reductions in the total number of cargo containers identified
as potentially high-risk year-to-year, even though the total amount of cargo arriving at U.S.
POEs has increased over the same time period.

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Available Date and Discussion

Table 16: Potentially High-Risk Cargo Containers at Seaports, FY 2013 – FY 2016
FY2013 FY2014 FY2015 FY2016
89,598 74,509 72,974 71,815

The number of potentially high-risk cargo containers declined in 2016 for the third year in a row.
Overall, the number of potentially high-risk containers fell from 89,598 in FY 2013 to 71,815 in
FY 2016, a 20 percent decrease.

§ 1092(c)(1)(G)(ii) Ratio of Potentially High-Risk Cargo Containers
Scanned Relative to High-Risk Containers Entering in Previous Fiscal
Year
Definition

Ratio of Potentially High-Risk Containers Scanned – The ratio of potentially high-risk containers
scanned relative to the number of potentially high-risk containers entering in the previous fiscal
year.

Percentage of Potentially High-Risk Containers Scanned – The percentage of potentially high-
risk containers scanned relative to the total number of potentially high-risk containers entering in
the same fiscal year.

The ratio of potentially high-risk containers scanned is an activity measure, which compares
trends in activity data over time. Ratio of High Risk Containers may also be interpreted as a
proxy indicator of high risk containers successfully be scanned and entering through ports of
entry, an outcome measure.

The percentage of potentially high-risk containers scanned is an output measure, which describes
CBP’s ability to scan containers identified as being potentially high-risk.

Methodology and Limitations

Inspection data are obtained from OFO administrative records. These data include potentially
high-risk cargo containers reviewed, assessed, or scanned. These three methods of inspection are
not currently distinguishable with available data sources.

The ratio compares potentially high-risk containers in one year to the number entering in the
previous year and should not be confused with the percentage of potentially high-risk containers
scanned relative to the number entering in the current year.

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A container is considered “high-risk” if even one shipment within it is designated high-risk. One
container may have multiple high-risk shipments within it which could cause the same container
to be reviewed or scanned multiple times.

Available Data and Discussion

The ratio of potentially high-risk containers reviewed, assessed, or scanned relative to previous
years’ entries along with the percentage scanned in the current year are contained in Appendix F.
Appendix F contains law enforcement sensitive information and has been redacted from this
public report.

With respect to the percentage scanned, nearly all sea POEs reported 100 percent scanning of
high-risk cargo containers in FY 2016 or indicated that no high-risk containers passed through
the POE. The few POEs that reported lower than a 100 percent scanning rate reported at least a
99 percent rate.

§ 1092(c)(1)(G)(iii) Potentially High-Risk Cargo Containers Scanned
Upon Arrival at a U.S. POE
This measure is under review and will be provided in the FY 2018 report.

§ 1092(c)(1)(G)(iv) Potentially High-Risk Cargo Containers Scanned
Before Arrival at a U.S. POE
This measure is under review and will be provided in the FY 2018 report.

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§ 1092(d) Metrics for Securing the Maritime Border

§ 1092(d)(1)(A) Situational Awareness in the Maritime Environment

Definition

The NDAA calls for DHS to develop a measure for situational awareness based on “knowledge
and understanding of current unlawful cross-border activity, including the following: (A)
Threats and trends concerning illicit trafficking and unlawful crossings; (B) The ability to
forecast future shifts in such threats and trends; (C) The ability to evaluate such threats and
trends at a level sufficient to create actionable plans; and (D) The operational capability to
conduct persistent and integrated surveillance of the international borders of the United States.”

Situational awareness is an output measure.

Methodology and Limitations

DHS is in the multi-year process of developing a defensible, analytically sound measure for
situational awareness in the maritime domain that meets the intent of the NDAA.

In the interim, the Department reports on the following operational activities contributing to
maritime domain situational awareness:
 CBP Aircraft Hours Flown for Situational Awareness or Interdiction Support
 USCG Aircraft Hours Flown for Situational Awareness or Interdiction Support
 USCG Cutter Hours Contributing to Situational Awareness or Interdiction
 CBP Boat Hours Contributing to Situational Awareness or Interdiction
 USCG Boat Hours Contributing to Situational Awareness or Interdiction
 CBP Tethered Aerostat Radar System (TARS) Radar Operating Hours
 Number of Vessel Manifests Screened by Coastwatch

Available Data and Discussion

Table 17a: CBP Aircraft Flight Hours Within/Outside Transit Zone, FY 2016
FY2016
Inside Transit
Zone - CBP 6,420
Outside Transit
Zone – CBP 13,188

Table 17b: USCG Aircraft Flight Hours Within/Outside Transit Zone, FY 2012 – FY 2016
FY2012 FY2013 FY2014 FY2015 FY2016
Inside Transit
Zone – USCG 5,082 4,599 4,567 5,426 4,110
Outside Transit
Zone – USCG 14,721 14,258 13,896 14,003 13,736

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USCG reported a decrease in the number of flight hours both inside and outside the transit zone
in FY 2016. Between FY 2012 and FY 2015, an average of 4,919 hours were flown inside the
transit zone, while only 4,110 were flown in FY 2016 – the lowest recorded flight hours in the
last five years. Similarly, 13,736 hours were flown outside the transit zone in FY 2016, as
compared to the FY 2012-2015 average of 14,220. This FY 2016 total was also the lowest
number of hours flown outside the transit zone in the last five years.

Table 18: USCG Cutter underway hours within/outside transit zone FY 2012 – FY 2016
FY2012 FY2013 FY2014 FY2015 FY2016
Inside Transit
Zone 37,866 25,388 14,456 16,964 28,205
Outside Transit
Zone 127,671 117,114 117,093 112,773 78,462

Table 19a: USCG Boat underway hours within/outside transit zone FY 2012 – FY 2016
FY2012 FY2013 FY2014 FY2015 FY2016
Inside Transit 0 2,031 0 0 0
Zone
Outside Transit 46,326 37,640 30,726 32,701 28,525
Zone

Table 19b: CBP Boat underway hours within/outside transit zone FY 2016
FY2016
Inside Transit 0
Zone
Outside Transit 40,241
Zone
Note: CBP maritime hours include Air and Marine Operations vessel underway hours.

Table 20: Total operational hours for TARS radars FY 2012 – FY 2016
FY2012 FY2013 FY2014 FY2015 FY2016
Cudjoe Key, FL 5,752 6,289 6,165 6,306 4,886
Lajas, PR 01 01 1,2301 5,049 4,559
1
TARS site at Lajas, Puerto Rico crashed in 2011; CBP re-established operations in May 2014.
Source: CBP administrative records

CBP’s Air and Marine Operations (AMO) uses TARS to provide long-range detection of low-
altitude aircraft at the radar’s maximum range. The elevated sensor mitigates curvature of the
earth and terrain masking limitations. The number of TARS operational hours declined for both
locations in FY 2016. Cudjoe Key saw a 1,420 hour decrease in hours (23 percent decrease from
FY 2015). Lajas reported a 490 hour decrease (10 percent decrease from FY 2015). FY 2016
saw an increase in severe tropical weather throughout the storm season because of a La Niña
effect, which impacted operations. In addition to the weather, AMO switched out the aerostat
envelope of the TARS in Cudjoe Key over March and April 2017.

Table 21: Vessel Manifests Screened by Coastwatch for National Security Concerns Prior to
Arrival at U.S. POE, FY 2012 – FY 2016
FY2012 FY2013 FY2014 FY2015 FY2016
118,098 126,112 124,661 122,133 117,736

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§ 1092(d)(1)(B) Known Maritime Migrant Flow Rate

Definition

Known Maritime Flow - Total maritime migrant flow interdicted, identified directly or indirectly
but not interdicted, or otherwise believed to have unlawfully entered the United States

Known Maritime Flow is an outcome measure.

Methodology and Limitations

Migrant flow data are obtained from USCG and CBP administrative records. The USCG
maintains a robust accounting of USCG, international partner, and domestic partner interdictions
and sightings of undocumented maritime migrants. The USCG relies upon its partners to report
their interdictions to the USCG for compilation in the database. At times, undocumented
maritime migrants are counted by both USCG and CBP (or other partners) when interdicted as
agencies often cooperate during these operations. In certain limited cases undocumented
maritime migrant interdictions by partners are not reported to the USCG, and these cases are not
accounted for in the figures below. Additionally, while partners report cases to the USCG when
undocumented maritime migrants are apprehended on shore or evidence is found of their arrival
on shore, some migrants arrive without being apprehended and leave no evidence. These cases
are never reported and are also excluded from the known maritime migrant flow figures below.

Table 22: Migrants interdicted in the maritime domain by DHS Component FY 2007 – FY 2016
DHS and
USCG CBP Partners
FY 2007 5,981 NA NA
FY 2008 4,565 NA NA
FY 2009 3,682 NA NA
FY 2010 2,121 NA NA
FY 2011 2,458 NA NA
FY 2012 2,732 NA NA
FY 2013 2,093 NA NA
FY 2014 3,587 NA 7,752
FY 2015 3,825 NA 6,028
FY 2016 6,326 2,683 8,167
Note: Some interdictions may be counted by both USCG and CBP as some migrant interdictions involve assets
from both agencies. Interdictions by DHS and partners may include international partners.

Table 23: Known maritime migrant flow, FY 2007 – FY 2016
FY2007 FY2008 FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016
14,682 10,879 9,850 4,443 4,566 5,298 7,631 10,631 8,057 10,319

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§ 1092(d)(1)(C) Illicit Drug Removal Rate

Terms
Illicit Drugs Removal Rate –The ratio of illicit drugs removed by DHS maritime security in any
fiscal year, including drugs abandoned at sea, relative to the average amount removed or
abandoned in the immediately preceding five fiscal years.

The Illicit Drug Removal Rate is an activity measure, which compares trends in activity data
over time.

Methodology and Limitations
Drug removals are obtained from USCG and CBP administrative records; these data are
considered reliable.

Pursuant to the definition of the Illicit Drug Removal Rate directed by NDAA § 1092 (d)(1)(C),
the Drug Removal Rate describes recent trends in drugs removed or abandoned at sea (i.e.,
current year compared to five previous years); the measure does not describe the rate at which
illicit drugs are removed.

Non-commercial maritime drug removals includes those seized by the USCG, CBP, other law
enforcement agencies, and international partners, as well as those disrupted or abandoned by
drug trafficking organizations.

Available Data and Discussion

Table 24: Ratio of Drugs Removed or Abandoned at Sea Relative to Previous Five Fiscal Years
(“Illicit Drug Removal Rate”), FY 2012 – FY 2016
Drug Type FY2012 FY2013 FY2014 FY2015 FY2016

Rate 337% 137% 154% 100% 61%
Marijuana
Quantity
124,585 81,008 108,535 78,262 52,613
Removed
Rate 0% 150% 265% 36% 4332%
Methamphetamine
Quantity
0 17.4 32.1 4.8 599.5
Removed
Rate 762% 0% 0% 676% 327%
Heroin
Quantity
24 0 0 52.4 44
Removed
Note: Marijuana measured in pounds, amphetamines and heroin measured in kilograms.
Data only includes removals by USCG.

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§ 1092(d)(1)(D) Cocaine Removal Effectiveness Rate
Definition

Cocaine Removal Effectiveness Rate – In consultation with ONDCP, the amount of cocaine
removed by DHS inside and outside the maritime transit zone compared to total estimated flow
of cocaine through the maritime domain.
Cocaine Removals is an activity measure. Removals may also be used as a proxy indicator of
total attempts to import cocaine, an outcome measure. Cocaine Removal Effectiveness rate (i.e.,
cocaine seized as compared to the total estimate cocaine flow) is an output measure.

Methodology and Limitations

Drug removal data are obtained from ONDCP, JIATF-S, CBP, and USCG administrative records
through the Consolidated Counter Drug Database (CCDB), and are considered reliable. Flow
quantities are the best estimates available based on intelligence reporting and case data.
Additionally, while other government estimates for production in major cocaine producing
countries in South America and consumption of cocaine within America do not align with the
estimated non-commercial maritime flow figures inside the transit zone derived from the CCDB,
this metric was derived based upon the non-commercial maritime flow estimates.

For the purposes of this metric, based upon where the data was gathered, the transit zone is
defined by the Joint Interagency Task Force South area of responsibility. Non-commercial
maritime drug removals include those seized by USCG, CBP, other law enforcement agencies,
and international partners, as well as those disrupted by anti-drug trafficking operations. The
cocaine removal rate is based on estimates of noncommercial maritime cocaine flow from the
CCDB. Outside the transit zone data is not considered as robust with regard to intelligence on
flow. As a result, the interdiction rate for cocaine outside the transit zone is not considered
reliable.

Available Data and Discussion

Table 25: Cocaine Removed by DHS Relative to the Total Estimated Flow in the Maritime Transit
Zone, FY 2012 – FY 2016
Location FY 2012 FY 2013 FY 2014 FY 2015 FY 2016
Rate 23% 12% 17% 21% 17%
Inside 186.4 155.4 178.8 277.2 482.7
Transit Quantity Removed
Zone Estimated Flow 799.5 1260.4 1042.2 1308.8 2852.6

Rate 49% 19% 50% 73% 28%
Outside 21.3 15.1 13.2 39 17.7
Transit Quantity Removed
Zone Estimated Flow 43.8 81.5 26.2 53.2 62.3
Note: Removal and estimated flow quantities measured in metric tons.

Figure 5: Flow and Removal of Cocaine in the Maritime Transit Zone, FY 2012 – FY 2016

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3000

Metric Tons of Noncommercial Cocaine
2500

2000

1500

1000

500

0
2012 2013 2014 2015 2016

USCG Removed Partner Removed Landed or Aborted

The flow of cocaine is estimated to have risen in 2016 to over 2,800 metric tons, based on the
decrease in aerial eradication of cocaine crops in Colombia and improved intelligence reporting
throughout the Transit Zone.

§ 1092(d)(1)(E) DHS Maritime Threat Response Rate
Definition

DHS Maritime Threat Response Rate – The ability of DHS maritime security components to
respond to and resolve known maritime threats, whether inside or outside a transit zone, by
placing assets on-scene, relative to the total number of known threats.

Methodology and Limitations

Currently, this data only exists associated with cocaine response activity. Further, DHS data is
part of a larger set of interagency data and may not be able to be separated from the larger
interagency data set, which is currently assessed and reconciled on a cycle and process outside of
DHS that does not support submission at this time. DHS, in cooperation with interagency
partners, intends to explore options to collect response data for non-cocaine response events, as
well as options to provide the response rate measures data to meet the intent of the Act and hopes
to provide an update in the November 2018 report.

§ 1092(d)(1)(F) Intergovernmental Maritime Threat Response Rate

Definition

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Intergovernmental Maritime Threat Response Rate – The ability of DHS maritime security
components or other U.S. Government entities to respond to and resolve known maritime threats,
whether inside or outside a transit zone, by placing assets on-scene, relative to the total number
of known threats.

Methodology and Limitations

Currently, this data only exists associated with cocaine response activity. Further, DHS data is
part of a larger set of interagency data and may not be able to be separated from the larger
interagency data set, which is currently assessed and reconciled on a cycle and process outside of
DHS that doesn't support submission at this time. DHS, in cooperation with interagency
partners, intends to explore options to collect response data for non-cocaine response events, as
well as options to provide the response rate measures data to meet the intent of the Act and hopes
to provide an update in the November 2018 report.

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§ 1092(e) Air and Marine Security Metrics in the Land Domain

§ 1092(e)(1)(A) Flight Hour Effectiveness Rate
Definition

Flight Hour Effectiveness Rate in the Land Domain – Number of flight hours flown by DHS Air
and Marine Operations in the Land Domain as a percentage of AMO’s unconstrained and
unfunded flight hour requirements.

Flight Hour Effectiveness Rate is an output measure.

Methodology and Limitations

This Flight Hour Effectiveness Rate is determined by dividing the total hours flown by the
number of flight hours determined during the annual collection process. The flight hour
requirements for the subsequent fiscal year are collected by AMO operating locations based on
unconstrained requirements collected from USBP, ICE and other partner agencies as well as
internal AMO requirements. In FY 2016, AMO collected the following unconstrained flight hour
requirements from these partner agencies in the Land Domain: USBP – 209,448 hours; ICE –
54,580 hours; OFO - 6,820 hours; and 24,377 hours for all other enforcement and non-
enforcement Land Domain missions (U.S. Secret Service event security, local Law Enforcement
coordination, training, maintenance, etc.). In 2016, AMO’s unconstrained flight hour
requirement in the Land Domain totaled 295,225 hours. However, after incorporating the
approved funding for FY 2016, the total funded flight hours in the Land Domain was reduced to
79,774 programmed hours.

Available Data and Discussion

AMO completed 27 percent of the unconstrained flight hour requirement during FY 2016, with
79,872 hours flown against the unconstrained 295,225 hours. Data from previous years are not
available for analysis.

§ 1092(e)(1)(B) Funded Flight Hour Effectiveness Rate

Definition

Funded Flight Hour Effectiveness Rate – Number of flight hours flown by Air and Marine
Operations as a percentage of the number of flight hours funded by Congress.

Funded Flight Hour Effectiveness Rate is an output measure.

Methodology and Limitations

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Flight hour data are obtained from AMO administrative records. This rate is determined by
dividing the total hours flown by the number of flight hours funded by Congress.

Available Data and Discussion

AMO’s Flight Hour Effectiveness Rate was 100 percent in FY 2016, with 79,872 hours flown
against 79,774 funded hours. Data from previous years are not available for analysis.

§ 1092(e)(1)(C) AMO Readiness Rate

Definition

AMO Readiness Rate - The percentage of mission requests that AMO was able to fulfill,
excluding those requests that could not be fulfilled due to reasons beyond AMO’s control.

AMO Readiness Rate is an activity measure.

Methodology and Limitations

Missions data are obtained from AMO administrative records. The rate is determined by
dividing the missions flown by the total number of mission requests (number of missions flown
plus the number of missions cancelled due to causes within AMO control, such as maintenance,
personnel, and asset availability).

Table 26: AMO Missions Cancelled and Readiness Rate FY 2016
FY2016
Total Non-Cancelled Missions 31,635
Missions cancelled - asset availability 4,978
Missions cancelled - crew availability 1,738
Total cancelled missions within AMO control 6,716
Readiness rate due to causes within AMO control 82%

AMO’s readiness rate was 82 percent in FY 2016, with 6,716 out of 38,351 planned missions
cancelled due to causes within AMO control. Data from previous years are not available for
analysis.

§ 1092(e)(1)(D) AMO Weather-Related Cancelation Rate
Definition

AMO Weather-Related Cancelation Rate - The number of missions cancelled by AMO due to
weather as a percentage of total planned AMO missions.

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AMO Weather-related cancelation rate is an activity measure.

Methodology and Limitations

Mission data are obtained from AMO administrative records. The Weather-Related Cancelation
Rate is calculated by dividing the number of missions cancelled due to weather by the total
number of missions requested by AMO’s partner agencies.

Available Data and Discussion

Table 27: AMO Weather-Related Cancelation Rate, FY 2016
Total Missions Requested by Partner Agencies 42,761
Missions Cancelled – Weather 3,083
Cancellation Rate due to Weather 7%

Data from previous years are not available for analysis.

§ 1092(e)(1)(E) AMO Individuals Detected

Definition

AMO Individuals Detected – Number of individuals detected by CBP AMO through the use of
unmanned aerial systems and manned aircraft.

AMO Individuals Detected is an activity measure.

Methodology and Limitations

Data are obtained from AMO administrative records. The Department’s currently available data
on detections by unmanned aircraft are limited to the number of VADER detections, and current
data on detections from manned aircraft are limited to detections leading to apprehensions and
arrests.

These data exclude certain detections because AMO does not presently track data from all
sensors on unmanned and manned aircraft. For this reason, the Department considers the current
AMO Individuals Detected measure to be a work in progress, and expects to provide more
comprehensive data on AMO detections as part of the FY 2019 State of the Border Report.

Available Data and Discussion

Table 28: Individuals Detected by AMO by Aircraft Type
Aircraft Type FY2016
Manned 54,879
Unmanned 7,908

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Data from previous years are not available for analysis.

§ 1092(e)(1)(F) AMO Apprehensions Assisted
Definition

AMO Apprehensions Assisted – USBP apprehensions assisted by AMO through the use of
unmanned aerial systems and manned aircraft.

AMO Apprehensions Assisted is an activity measure.

Methodology and Limitations

Data are obtained from AMO administrative records. The metric consists of apprehensions and
arrests that are attributed to manned and unmanned aircraft operations. These data are based on
Aircraft Enforcement Hours (non-maritime), therefore excluding DHC-8, P-3, and MEA aircraft
operations occurring in the maritime domain

Available Data and Discussion

Table 29: Apprehensions Assisted by AMO by Aircraft Type and Flight Hours
FY2016
Enforcement
Aircraft Type Flight Hours Apprehensions
Manned 64,639 50,646
Unmanned 4,857 1,729

Data from previous years are not available for analysis.

§ 1092(e)(1)(G) Illicit Drug Seizures Assisted by AMO
Definition

Illicit Drug Seizures Assisted by AMO - The number and quantity of illicit drug seizures assisted
by AMO through the use of unmanned aerial systems and manned aircraft.

Illegal Drug Seizures Assisted is an activity measure.

Methodology and Limitations

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Drug seizure data are obtained from AMO administrative records. The metric consists of the
total number of events and quantity in pounds of drug seizures using manned and unmanned
systems. A “drug event” is defined as a single law enforcement action resulting in a drug
seizure(s). This is based on Aircraft Enforcement Hours (non-maritime), therefore excluding
DHC-8, P-3, and MEA aircraft operations occurring in the maritime domain.

Available Data and Discussion

Table 30: Illicit Drug Seizures and Drug Events by AMO by Aircraft Type and Flight Hours
FY2016
Enforcement Drug Drug
Aircraft Type Flight Hours Events Seizures (lbs)
Manned 64,639 3,834 651,759
Unmanned 4,857 78 30,033

Data from previous years are not available for analysis.

§ 1092(e)(1)(H) AMO Actionable Intelligence

Definition

AMO Actionable Intelligence - The number of times that actionable intelligence related to border
security was obtained through the use of unmanned aerial systems and manned aircraft.

This measure is under review and will be provided in the FY 2019 State of the Border report.

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§ 1092(g)(3)(D) Other Appropriate Information
Pursuant to NDAA § 1092(g)(3)(D), this section provides three additional metrics of border
security between ports of entry: 1) selected characteristics of USBP apprehensions; 2) the
estimated at-the-border deterrence rate; and 3) estimated border crossing costs.

Selected Characteristics of Recent USBP Apprehensions
Definition

Historically, the overwhelming majority of individuals apprehended between POEs along the
southwest border have been Mexican adults, and very few of them have sought asylum or other
forms of humanitarian relief from removal. The profile of USBP apprehensions has changed in
important ways in recent years, as growing shares of individuals apprehended are: a) from
countries other than Mexico (primarily the Northern Triangle of Central America countries of El
Salvador, Guatemala, and Honduras), b) UACs or children and adults traveling together as
FMUAs, and/or c) seeking asylum by claiming credible or reasonable fear of being returned to
their countries of citizenship when potentially subject to expedited removal.

These shifting characteristics have an important impact on border security and USBP border
enforcement because existing enforcement policies were largely designed with the more
traditional alien profile in mind. For example, many consequences under CBP’s Consequence
Delivery Program such as the Alien Transfer Exit Program and the Mexican Interior Repatriation
Program are only applicable to Mexican nationals. And UACs, FMUAs, and aliens making
successful credible/reasonable fear claims are generally not subject to expedited removal and
have been considered “not impactable” by traditional USBP enforcement efforts because upon
apprehension they have typically been released into the United States with a Notice to Appear in
immigration court on a future date. More generally, the drivers of migration from countries
other than Mexico and for aliens who may seek humanitarian relief from removal may be
different from those that motivated earlier generations of unlawful border crossers, potentially
causing U.S. policymakers to rethink their policy response.

To monitor these changing dynamics, the Department tracks two main sets of characteristics:

Apprehensions by Citizenship – The share of aliens apprehended by USBP from Mexico, El
Salvador, Guatemala, Honduras, and all other countries.

Apprehensions by Potential Humanitarian Equities – The share of aliens apprehended by USBP
who are unaccompanied children, are apprehended as part of a family unit, and/or who make
successful credible or reasonable fear claims.

Apprehensions is an activity measure.

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Methodology and Limitations

Apprehensions are recorded in administrative record systems with a unique identifier created for
each apprehension. Apprehensions by citizenship, by UAC status, and by family unit status are
generally considered reliable, though agents may not always be able to identify UACs or family
units.

Available Data and Discussion

Table 31: USBP Southwest Border Apprehensions by Citizenship, FY 2008 – FY 2016
Country 2008 2009 2010 2011 2012 2013 2014 2015 2016
Mexico 653,035 495,582 396,819 280,580 262,341 265,409 226,771 186,017 190,760
El
12,133 11,181 13,123 10,368 21,903 36,957 66,419 43,392 71,848
Salvador
Guatemala 15,143 14,125 16,831 17,582 34,453 54,143 80,473 56,691 74,601
Honduras 18,110 13,344 12,231 11,270 30,349 46,448 90,968 33,445 52,952
All Other 6,584 6,633 8,727 7,777 7,827 11,440 14,740 11,788 18,709
Total 705,005 540,865 447,731 327,577 356,873 414,397 479,371 331,333 408,870

In recent years, apprehensions have started to shift from consisting overwhelmingly of Mexican
nationals to an equal share of Mexican nationals and border crossers from other areas, mostly
Northern Triangle countries. In 2014 and 2016, southwest border apprehensions peaked, most
noticeably for Northern Triangle countries. In 2016, only 46 percent of southwest border
apprehensions were Mexican nationals while 48 percent were from Northern Triangle countries.
Apprehensions of border crossers from all other countries also rose considerably in 2016,
increasing by more than 50 percent.

Table 32: USBP Southwest Border Apprehensions by Potential Humanitarian Claim, FY 2008 –
FY 2016
2008 2009 2010 2011 2012 2013 2014 2015 2016
FMUA NA NA NA NA 11,116 14,855 68,445 39,838 77,674
UAC 7,922 19,440 18,411 15,949 24,403 38,759 68,541 39,970 59,692
Credible/
Reasonable
Fear Claim 7,454 8,627 12,499 13,994 22,087 44,380 57,936 47,117 87,585
Total
Apprehensions 705,005 540,865 447,731 327,577 356,873 414,397 479,371 331,333 408,870
Note: Table rows are not mutually exclusive categories; some individuals are counted as FMUA and
credible/reasonable fear.

Consistent with the surge of apprehensions seen in 2016, the number of family unit
apprehensions and UAC apprehensions rose in 2016, with family unit numbers roughly doubling
from 2015 and UAC apprehensions increasing 49 percent. Credible fear claims also rose
substantially in 2016, with an 86 percent increase over the previous year. All three of these “non-
impactable” flows have increased dramatically over the past decade. As compared to 2008,
credible fear/reasonable fear claims have increased eleven-fold, while UAC numbers have

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increased seven-fold; and FMUA apprehensions have increased seven-fold since 2012 (the first
year for which data are available).

At-the-Border Deterrence
Definition
Deterrence - the estimated share of migrants who, following a failed unlawful entry attempt, are
deterred from making a subsequent reentry and decide instead to return home or otherwise
remain in Mexico.

The deterrence rate is an output measure associated with the difficulty of crossing the border
unlawfully because it reflects decisions by people who have already decided to migrate illegally
to abandon their effort.

Methodology and Limitations

As with the apprehension or interdiction rate, deterrence cannot be observed directly.

DHS currently estimates deterrence based on migrant surveys; the Department believes surveys
or interviews are one of the only ways to directly measure deportees’ intentions to make a further
illegal entry attempt. The most important survey data on deterrence comes from the Colegio de
la Frontera Norte International Border Survey (EMIF), which interviews deportees immediately
at repatriation facilities upon their return to Mexico and asks them about their intentions to return
to the United States within the next 7-90 days. In work for DHS, the Institute for Defense
Analyses (IDA) Corporation used a combination of EMIF and CBP data to build an econometric
model of 90-day deterrence for all USBP apprehensions since 2000.6

In addition to the standard concerns about the validity of survey samples and survey instruments,
questions about deterrence are especially hard to measure accurately given the ever-evolving
enforcement environment. A further limitation is that the EMIF data is restricted to Mexican
northern border deportees, and cannot be assumed to apply to migrants from other
regions/countries because they face different trade-offs and geographic barriers when
considering a re-entry attempt.

Available Data and Discussion

Figure 6: At the Border Deterrence for Mexican Border Deportees, FY 1993 – FY 2016

6
John W. Bailey et al., “Assessing Southern Border Security,” Institute for Defense Analyses, IDA Paper NS P-
5304, May 2016.

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90
80
70
60

% Deterred
50
40
30
20
10
0 1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
Year

7 day Deterrence 90 day EMIF weights 90 day IDA weights

The data describe relatively limited deterrence levels prior to 2007 (20-40 percent in the seven-
day survey and 10-30 percent in the 90-day model), and substantial growth in the deterrence rate
since that time. Estimated seven-day deterrence rates have exceeded 75 percent every year since
2012, and estimated 90-day deterrence rates hovered around 60 percent in 2014 through 2016.

Border Crossing Costs
Definition

Percent hiring smuggler – the share of migrants who hire a smuggler.

Border crossing costs - the average fees that smugglers charge.

Smuggling usage and average smuggling fees are output measures associated with the difficulty
of crossing the border unlawfully. Migrants will only tolerate higher fees to the extent that
smugglers provide an essential and successful service. Smugglers also compete to attract
customers by offering their services at the lowest profitable rate, so higher fees indicate rising
costs to smugglers. Rising smuggling fees also reflect an increased risk to smugglers of a
criminal conviction; smugglers pass this risk along to customers in the form of higher fees.

Methodology and Limitations

The only available data on smuggling fees come from migrant surveys and USBP custodial
interviews. These data may be subject to response bias if migrants are reluctant to admit to
hiring a smuggler, but such bias should be broadly consistent over time, so changes in
survey/interview data should reflect changes in the difficulty of crossing the border.

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Available Data and Discussion

One finding across multiple surveys is that smuggler usage rates have increased steadily over the
last five decades. Previous research by the Office of Immigration Statistics found that smuggler
usage rates climbed from 40-50 percent during the 1970s, to 59 percent in the late 1970s and
early 1980s, 70-80 percent in the 1980s to 1990s, 80 to 93 percent in the 1990s to 2000s, and 95
percent for first-time crossers surveyed in 2006. Similarly, according to USBP interviews,
relatively few illegal border crossers hired a smuggler prior to 2001, but usage rates climbed to
80-95 percent among apprehended border crossers in 2015.

Figure 7: Border Crossing Cost Estimates, FY 1999 – FY 2015
$4,500

$4,000

Average Smuggler Fee (TY$, excluding zeros)
$3,500

$3,000

$2,500

$2,000

$1,500

$1,000

$500

EMIF Returned Module EMIF From US Module EMIF From South Module Apprehension Records

Source: U.S. Border Patrol apprehension records, El Colegio de la Frontera Norte Encuestas sobre
Migracion en las Fronteras Norte y Sur de Mexico (EMIF).

Survey results also indicate steady increases in fees paid to migrant smugglers. Averaging
across the available sources depicted in Figure X, smuggling fees increased by five percent per
year during the 1980s, 12 percent per year during the 1990s, and nine percent per year during the
decade ending in 2015.

Custodial interviews conducted by USBP have found that smuggling fees are often paid in
stages. Initial fees required to approach staging locations along the border were often lower than
$100 prior to the late 2000s, and an additional $1,000-$3,000 in fees were charged upon delivery
to the final destination. More recently, smuggling fees for Mexicans and Central Americans
reportedly have been as high as $1,200 for the initial staging payment and up to $8,000 at the
final destination. Custodial interviews also find evidence of an increase in alternative forms of
payment in exchange for passage, including migrants being required to participate in smuggling
controlled substances or other illicit items across the border or to work off debts upon arrival in

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the United States, as well as reports of harsh negotiations concerning payment plans with family
members.

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IV. Conclusion
DHS recognizes that its ability to accurately measure its border security outcomes, outputs,
activities, and inputs is essential to the effective and efficient management of the Department.
The metrics contained in this report will be the baseline that DHS uses to measure its progress
towards meeting the goals contained in the Executive Order on Border Security and Immigration
Enforcement Improvement. As such, the Department will continue to refine these metrics
through internal and external engagement and collaboration, including with Congress. DHS
looks forward to updating Congress on this progress through periodic briefings and formally
with the submission of future State of the Border Reports.

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Appendix A – Repeated Trials Model Methodology
The Department’s current model-based estimates of the Apprehension Rate, of the total number
of successful unlawful entries, and of related measures such as undetected unlawful entries build
on research conducted for DHS by the Institute for Defense Analyses (IDA) based on long-
standing social science research on the Repeated Trials Methodology (RTM).7 The Department
views some of IDA’s assumptions as problematic and is still working to validate and refine the
modeling methodology. For this reason, while this report includes metrics based on IDA’s
model-based approach, DHS views the model itself as a work in progress, and future reports will
update resulting metrics as the Department continues to improve its own modeling ability.

The primary building block for the model-based Apprehension Rate and total estimated
successful unlawful entries is an estimated apprehension rate for a particular subset of border
crossers that DHS refers to as a partial apprehension rate (PAR). The approach focuses on
illegal border crossers who are apprehended and deported to the Mexican border and who make a
subsequent re-entry attempt. The logic of the PAR is to use USBP biometric data to assess what
share of migrants who make repeated entry attempts is subsequently re-apprehended.

The PAR methodology consists of three main steps (see Figure 2). First, the model identifies a
subset of illegal border crossers who are candidates to attempt re-entry, the so-called RTM
population. Under IDA’s methodology, this group excludes all non-Mexicans, those deported to
the Mexican interior or remotely through the Alien Transfer and Exit Program, aliens who have
ever requested asylum, those facing criminal charges, and children under 18 years old.

7
For a full discussion of IDA’s model-based estimate, see John W. Bailey et al., “Assessing Southern Border
Security,” Institute for Defense Analyses, IDA Paper NS P-5304, May 2016. Also see Thomas J. Espenshade,
“Using INS Border Apprehension Data to Measure the Flow of Undocumented Migrants Crossing the U.S.-Mexico
Frontier,” International Migration Review (1995): 545-565; Joseph Chang, “CBP Apprehensions at the Border,”
Homeland Security Studies and Analysis Institute, 2006.

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Figure 1: Partial Apprehension Rate Methodology

Source: DHS Office of Immigration Statistics adaptation of Bailey et al. 2016.

The second step in calculating the PAR is to distinguish between deportees who give up and
return home or otherwise remain in Mexico versus those who attempt to re-enter the United
States. IDA estimates this share based on an analysis of a survey of recent deportees conducted
by the College of the Northern Border, the so-called EMIF survey.

Third, by definition, RTM assumes deportees who are not deterred following an apprehension
always make a subsequent reentry attempt. Thus, by observing in DHS administrative records
how many migrants from the RTM population are re-apprehended, the model infers the number
that successfully re-enters. The ratio of re-apprehensions to successful re-entries is used to
estimate the partial apprehension rate.

The PAR model confronts important limitations at each point in the modeling process. The most
notable and challenging to overcome is the assumption of the RTM that subjects who are not
deterred will always attempt re-entry until successful. One problem with this assumption is the
lack of reliable data on who is deterred. IDA relies primarily on the EMIF survey to estimate the
deterrence rate. And while the EMIF is widely recognized as one of the best migrant surveys
available, its results are still dependent on the characteristics of the sample, the quality of the
survey instrument, and the honesty of the respondents. More fundamentally, the EMIF survey
asks recent deportees about their intentions to re-enter the United States, and it therefore does not
take account of shifting border enforcement efforts, potential changes in behavior by individuals
who have been exposed to consequence programs, or other deterrent factors along the border.
The structure of the RTM model means that any resulting undercount in the estimate of the
deterred population results in a downward bias in the PAR.

Second, the RTM population represents a shrinking share of southwest border apprehensions.
Mexican adults quickly deported to the nearest border accounted for about 95 percent of
apprehensions when the RTM methodology was developed in the 1990s. But changes in the
composition of border flows (i.e., rising numbers of Central Americans and asylum seekers);

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changes in CBPs enforcement strategy to emphasize criminal charges, lateral repatriation, and
other enforcement consequences; and IDA’s restrictive modeling choices mean that as few as 20
percent of U.S. Border Patrol (USBP) apprehensions in recent years are used to estimate the
PAR. In addition, because the RTM sample excludes aliens who are more likely to surrender to
USBP (i.e., aliens with a higher apprehension rate), the PAR is biased downwards as an indicator
of the overall apprehension rate; this bias may be substantial given the number of aliens excluded
from the RTM sample.

Third, IDA makes somewhat restrictive assumptions about which re-apprehensions to include in
the final stage of the PAR calculation. In particular, IDA excludes apprehensions occurring at
check points and other remote locations and those occurring more than four days after an illegal
entry. Given USBP’s defense-in-depth strategy, which places resources at and behind the
border, these assumptions result in a slight further downward bias in the PAR.

Despite these limitations, the Department views the RTM methodology as a promising approach
to estimating an apprehension rate that takes great advantage of USBP’s collection of biometric
data since 2000. DHS is currently working to relax certain aspects of IDA’s modeling
assumptions and to more fully describe the impact of each assumption on the PAR and on related
model-based metrics reported above.

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Appendix B – Drugs Seizures – All Ports of Entry
OFO Drug Seizures at Ports of Entry FY 2007 to FY 2016
DRUG FY 2007 FY 2008 FY 2009 FY 2010 FY 2011
Grand Total 372,493.60 433,037.02 680,417.93 395,390.47 371,813.83
COCA PRODUCTS, TEA BAGS OR LIQUOR 953.62
COCAINE 35,635.13 18,246.01 27,946.47 28,063.88 23,517.88
CRYSTAL METHAMPHETAMINES 235.15 186.25 360.6 544.2 875.61
DIHYDROCODEINONE (HYDROCODONE) 70.92 26.37 8.46
ECSTASY 771.36 700.28 500.83 527.71 264.92
EPHEDRINE 888.58 7,901.41 8,762.73 7,738.18 4,475.71
FENETHYLLINE-(CAPTAGON-
AMPHETAMINE)
GAMMA HYDROXY BUTYRATE 39.28 48.34 26.16 79.86 24.28
HASH,LIQUID (HASH OIL) 0.06 0.1 0.08 0.26 0.04
HASHISH 128.94 105.3 276.83 143.11 104.83
HEROIN 932.08 845.46 827.61 1,316.57 1,594.24
KETAMINE 11.86 100.77 40.85 66.84 112.47
KHAT (CATHA EDULIS) 41,216.88 54,815.24 116,691.90 95,988.98 70,061.23
LSD 0.16 0.85 4.58 0.78 10.09
MARIJUANA 280,387.77 261,611.58 312,264.86 246,546.43 253,771.78
MARIJUANA PLANTS 13.15
MDPV-
(METHYLENEDIOXYPYROVALERONE)
MEPHEDRONE 0.5
METHAMPHETAMINE 1,164.53 1,155.95 1,970.25 2,900.33 3,824.11
METHYLONE 1.3
METHYLPHENIDATE (RITALIN) 39.95 46.74 38.95 23.79 28.11
MORPHINE 7.4 8.15 1.08 22.86 6.2
N-BENZYLPIPERAZINE (BZP TABLETS) 0.02 9.36 182.79 15.24 12.9
NEXUS/2 CB 0 0.16 0 0.11
OPIUM 529.5 318.74 662.55 825.52 667.96
OTHER DRUGS, PRESCRIPTIONS,
2,257.77 5,814.91 5,878.10 7,125.77 5,452.89
CHEMICALS
OXYCODONE (OXYCONTIN) 1.59 2.8 4.86 5.21 6.07
PARAMETHOXYAMPHETAMINE 0.03 0.01 0
PRECURSOR CHEMICALS EXCEPT
7,521.86 80,705.40 203,508.22 230.2 4,760.66
EPHEDRINE
PSILOCYN OR PSILOCYBIN MUSHROOMS 24.58 25.81 4.81 4.71 3.74
ROHYPNOL 0.24 0.18 0.05 0.53 0.21
STEROIDS 698.88 386.16 389.02 3,117.40 331.81

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SYNTHETIC CANNABINOIDS - ALL TYPES 72.1 929.35
YABA 1.25 2.67 3.14 0.08
DRUG FY 2012 FY 2013 FY 2014 FY 2015 FY 2016
Grand Total 344,129.80 336,121.66 309,214.45 400,719.44 367,612.58
COCA PRODUCTS, TEA BAGS OR LIQUOR 270.63 112.31 335.66 370.24 210.93
COCAINE 20,529.67 17,723.96 18,738.75 17,302.28 23,949.98
CRYSTAL METHAMPHETAMINES 1,377.53 1,522.53 1,742.36 1,625.40 2,084.99
DIHYDROCODEINONE (HYDROCODONE) 1.79 4.29 11.24 2.98 14.45
ECSTASY 49.56 104.26 111.04 103.97 704.61
EPHEDRINE 2,350.28 5.1 28.57 42.1 13.5
FENETHYLLINE-(CAPTAGON-
1.22
AMPHETAMINE)
FENTANYL 208.25
GAMMA HYDROXY BUTYRATE 218.16 33.09 73.31 48.68 483.76
HASH,LIQUID (HASH OIL) 0.18 0.13 13.98 0.77 0.45
HASHISH 60.96 58.1 117.11 82.43 75.24
HEROIN 1,714.41 1,809.90 1,957.01 2,508.16 1,915.58
KETAMINE 81.31 88.58 77.78 43.69 150.59
KHAT (CATHA EDULIS) 47,972.07 84,023.03 67,478.21 66,953.87 70,087.11
LSD 17.82 3 7.02 3.57 2.41
MARIJUANA 237,053.80 213,186.12 198,650.99 273,423.14 233,774.29
MARIJUANA PLANTS 0.03 7.97 0.66 0.25 1.64
MDPV-
29.22 335.14 225.68 234.05 41.75
(METHYLENEDIOXYPYROVALERONE)
MEPHEDRONE 12.4 11.82 9.11 5.72 2.66
METHAMPHETAMINE 5,032.37 7,884.50 8,796.53 11,529.10 15,018.32
METHYLONE 74.63 322.27 829.42 315.68 41.98
METHYLPHENIDATE (RITALIN) 36.63 20.03 15.14 13.69 12.3
MORPHINE 13.1 31.36 213.71 19.29 520.21
N-BENZYLPIPERAZINE (BZP TABLETS) 73.71 87.78 1.61 1.16 0.1
NEXUS/2 CB 0.06 0.09 0.11 1.26 0.06
OPIUM 1,150.49 1,289.80 1,637.34 652.98 905.89
OTHER DRUGS, PRESCRIPTIONS,
5,719.66 4,135.02 5,117.21 22,330.66 12,987.55
CHEMICALS
OXYCODONE (OXYCONTIN) 13.72 13.17 11.14 6.46 20.65
PARAMETHOXYAMPHETAMINE 0.15
PRECURSOR CHEMICALS EXCEPT
18,778.76 739.27 748.2 1,293.69 3,377.95
EPHEDRINE
PSILOCYN OR PSILOCYBIN MUSHROOMS 17.98 23.38 24.11 16.18 45.78
ROHYPNOL 0.23 0.74 0.04 0 0.08

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STEROIDS 476.53 470.05 554.53 581.16 613.24
SYNTHETIC CANNABINOIDS - ALL TYPES 1,001.97 2,074.37 1,686.67 1,206.82 550.79
YABA 0.47 0.18 2.53
Note: Tea bags included in this table are those used to carry coca products.

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U.S. Customs and Border Protection Enforcement Actions - Southwest Border
Total - Apprehensions and Inadmissible Aliens by Country of Citizenship
FY17 - 19TD through May
50,000

45,000

40,000

35,000

30,000

25,000

20,000

15,000

10,000

5,000

0
Oct-16 Nov-16 Dec-16 Jan-17 Feb-17 Mar-17 Apr-17 May-17 Jun-17 Jul-17 Aug-17 Sep-17 Oct-17 Nov-17 Dec-17 Jan-18 Feb-18 Mar-18 Apr-18 May-18 Jun-18 Jul-18 Aug-18 Sep-18 Oct-18 Nov-18 Dec-18 Jan-19 Feb-19 Mar-19 Apr-19 May-19

El Salvador 11,335 12,026 11,359 6,714 3,384 1,452 1,184 1,575 1,629 1,900 2,388 2,156 2,745 3,270 3,034 1,891 1,804 2,643 3,144 3,820 3,492 3,240 3,789 4,170 4,839 5,187 3,928 3,794 5,499 9,285 11,194 16,150
Guatemala 12,694 13,313 12,226 7,684 3,146 1,423 1,372 2,456 3,402 5,250 6,843 6,826 8,192 10,306 13,250 9,060 9,080 11,836 12,624 14,170 11,129 9,486 11,048 13,150 18,030 19,869 22,059 18,897 24,185 33,980 33,499 45,321
Honduras 8,702 9,958 9,876 5,973 2,765 1,558 1,081 1,634 2,257 2,773 3,449 3,604 3,959 5,198 5,105 4,721 4,709 8,247 9,304 10,576 8,858 7,744 9,526 10,325 13,059 14,407 14,717 13,438 22,610 29,389 31,522 42,794
Mexico 23,790 20,011 15,650 16,090 12,331 11,076 11,116 12,858 13,042 13,746 15,955 16,441 17,539 17,395 16,084 18,175 19,169 24,537 22,980 19,385 16,088 15,414 17,830 17,991 19,542 16,983 13,928 16,552 17,893 22,315 21,529 23,127
Other 10,321 7,910 9,268 5,898 1,931 1,285 1,045 1,443 1,343 1,400 1,947 2,253 2,436 2,882 3,046 2,058 1,989 3,084 3,116 3,911 3,613 4,265 4,526 4,932 5,307 6,016 6,142 5,607 6,346 8,760 11,730 16,886

Other Than Mexico FYTD
Enforcement Actions – CBP OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEPT Total (MAY)
Total Total
FY19 41,235 45,479 46,846 41,736 58,640 81,414 87,945 121,151 524,446 524,446
FY18 17,332 21,656 24,435 17,730 17,582 25,810 28,188 32,477 27,092 24,735 28,889 32,577 298,503 185,210
FY17 43,052 43,207 42,729 26,269 11,226 5,718 4,682 7,108 8,631 11,323 14,627 14,839 233,411 183,991

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Credible Fear Cases FY-06 FY-07 FY-08 FY-09 FY-10 FY-11 FY-12 FY-13 Q1
Referrals from CBP or ICE 5,338 5,252 4,995 5,369 8,959 11,217 13,880 5,552
Completed 5,241 5,286 4,828 5,222 8,777 11,529 13,579 4,860
CF Found 3,320 3,182 3,097 3,411 6,293 9,423 10,838 3,843
CF Not Found 584 1,062 816 1,004 1,404 1,054 1,187 502
Closed 1,337 1,042 915 807 1,080 1,052 1,554 515
Of cases decided on the merits,
% where CF was found 85.04% 74.98% 79.15% 77.26% 81.76% 89.94% 90.13% 87.64%
Of all referred cases, % where
CF was found 63.35% 60.20% 64.15% 65.32% 71.70% 81.73% 79.81% 70.07%

Reasonable Fear Cases FY-06 FY-07 FY-08 FY-09 FY-10 FY-11 FY-12 FY-13 Q1
Referrals 325 550 700 1,109 2,060 3,233 5,070 1,465
Completed 292 504 619 971 1,293 2,756 4,692 1,247
RF Found 55 122 135 163 202 603 938 299
RF Not Found 57 128 172 165 206 270 960 275
Closed 180 254 312 643 885 1,883 2,794 673
Of cases decided on the merits,
% where RF was found 49.11% 48.80% 43.97% 49.70% 49.51% 69.07% 49.42% 52.09%
Of all referred cases, % where
RF was found 18.84% 24.21% 21.81% 16.79% 15.62% 21.88% 19.99% 23.98%

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EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
ADJUDICATION STATISTICS
Asylum Decision and Filing Rates in Cases Originating with a Credible Fear Claim1

70%

60%

50%
Rate of No Asylum
Application Filed

40%

30% Denial Rate

20%
Grant Rate
Other Rate

10%

Admin.
Closure Rate
0%
2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018

Percentage
Admin No Asylum of No
Grant Denial Other Admin
FY Grants Denials Other2 3 Closure Application Asylum Total
Rate Rate Rate Closure
Rate Filed Application
Filed
2008 1,014 29.34% 835 24.16% 303 8.77% 64 1.85% 1,240 35.88% 3,456
2009 992 30.58% 660 20.35% 282 8.69% 54 1.66% 1,256 38.72% 3,244
2010 1,001 33.94% 513 17.40% 241 8.17% 88 2.98% 1,106 37.50% 2,949
2011 1,396 27.01% 820 15.86% 349 6.75% 69 1.33% 2,535 49.04% 5,169
2012 1,503 22.33% 957 14.22% 501 7.44% 179 2.66% 3,590 53.34% 6,730
2013 1,400 16.03% 1,466 16.79% 618 7.08% 237 2.71% 5,011 57.39% 8,732
2014 1,690 12.62% 2,703 20.18% 1,281 9.56% 409 3.05% 7,312 54.59% 13,395
2015 1,955 13.52% 2,806 19.40% 1,366 9.44% 2,064 14.27% 6,274 43.37% 14,465
2016 2,481 11.94% 3,765 18.12% 1,762 8.48% 3,703 17.83% 9,063 43.63% 20,774
2017 3,980 13.85% 7,347 25.56% 2,649 9.22% 1,919 6.68% 12,846 44.70% 28,741
2018 5,601 16.33% 10,063 29.34% 4,793 13.97% 342 1.00% 13,499 39.36% 34,298
2019
(Second
Quarter4) 3,544 15.20% 7,035 30.18% 2,545 10.92% 3 0.01% 10,185 43.69% 23,312

Data Generated: April 12, 2019
1 Asylum decisions subsequent to a credible fear book-in at Department of Homeland Security in completed removal, deportation,

exclusion proceedings (initial case completions only) or in proceedings that have been administratively closed.
2 Asylum Others have a decision of abandonment, not adjudicated, other, or withdrawn.
3 Administrative Closure decisions that have not been placed back on the docket (redocketing occurs following an immigration judge’s

grant of a party’s motion to recalendar).
4 FY 2019 Second Quarter through March 31, 2019.

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CONVENTION DETERMINING THE STATE RESPONSIBLE FOR EXAMINING
APPLICATIONS FOR ASYLUM LODGED IN ONE OF THE MEMBER STATES OF
THE EUROPEAN COMMUNITIES - DUBLIN CONVENTION

Official Journal C 254 , 19/08/1997 p. 0001 - 0012
Text:
CONVENTION determining the State responsible for examining applications for asylum
lodged in one of the Member States of the European Communities (97/C 254/01)
HIS MAJESTY THE KING OF THE BELGIANS,
HER MAJESTY THE QUEEN OF DENMARK,
THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY,
THE PRESIDENT OF THE HELLENIC REPUBLIC,
HIS MAJESTY THE KING OF SPAIN,
THE PRESIDENT OF THE FRENCH REPUBLIC,
THE PRESIDENT OF IRELAND,
THE PRESIDENT OF THE ITALIAN REPUBLIC,
HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG
HER MAJESTY THE QUEEN OF THE NETHERLANDS,
THE PRESIDENT OF THE PORTUGUESE REPUBLIC,
HER MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND,
HAVING REGARD to the objective, fixed by the European Council meeting in
Strasbourg on 8 and 9 December 1989, of the harmonization of their asylum policies;
DETERMINED, in keeping with their common humanitarian tradition, to guarantee
adequate protection to refugees in accordance with the terms of the Geneva Convention
of 28 July 1951, as amended by the New York Protocol of 31 January 1967 relating to the
Status of Refugees, hereinafter referred to as the 'Geneva Convention` and the 'New York
Protocol` respectively;
CONSIDERING the joint objective of an area without internal frontiers in which the free
movement of persons shall, in particular, be ensured, in accordance with the provisions of
the Treaty establishing the European Economic Community, as amended by the Single
European Act:

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AWARE of the need, in pursuit of this objective, to take measures to avoid any situations
arising, with the result that applicants for asylum are left in doubt for too long as regards
the likely outcome of their applications and concerned to provide all applicants for
asylum with a guarantee that their applications will be examined by one of the Member
States and to ensure that applicants for asylum are not referred successively from one
Member State to another without any of these States acknowledging itself to be
competent to examine the application for asylum;
DESIRING to continue the dialogue with the United Nations High Commissioner for
Refugees in order to achieve the above objectives;
DETERMINED to co-operate closely in the application of this Convention through
various means, including exchanges of information,
HAVE DECIDED TO CONCLUDE THIS CONVENTION AND TO THIS END HAVE
DESIGNATED AS THEIR PLENIPOTENTIARIES:
HIS MAJESTY THE KING OF THE BELGIANS,
Melchior WATHELET
Deputy Prime Minister, Minister for Justice, Small and Medium-sized Businesses and the
Self-Employed
HER MAJESTY THE QUEEN OF DENMARK,
Hans ENGELL
Minister for Justice
THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY,
Dr. Helmut RÜCKRIEGEL
Ambassador of the Federal Republic of Germany at Dublin
Wolfgang SCHÄUBLE
Federal Minister for the Interior
THE PRESIDENT OF THE HELLENIC REPUBLIC,
Ioannis VASSILIADES
Minister for Public Order
HIS MAJESTY THE KING OF SPAIN,
José Luis CORCUERA
Minister for the Interior

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THE PRESIDENT OF THE FRENCH REPUBLIC,
Pierre JOXE
Minister for the Interior
THE PRESIDENT OF IRELAND,
Ray BURKE
Minister for Justice and Minister for Communications
THE PRESIDENT OF THE ITALIAN REPUBLIC,
Antonio GAVA
Minister for the Interior
HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG,
Marc FISCHBACH
Minister for Education, Minister for Justice, Minister for the Civil Service
HER MAJESTY THE QUEEN OF THE NETHERLANDS,
Ernst Maurits Henricus HIRSCH BALLIN
Minister for Justice
THE PRESIDENT OF THE PORTUGUESE REPUBLIC,
Manuel PEREIRA
Minister for the Interior
HER MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND,
David WADDINGTON
Secretary of State for the Home Department (Home Secretary)
Sir Nicholas Maxted FENN, KCMG
Ambassador of the United Kingdom of Great Britain and Northern Ireland at Dublin
WHO, having exchanged their Full Powers, found in good and due form,
HAVE AGREED AS FOLLOWS:

Article 1

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1. For the purposes of this Convention:
(a) 'Alien` means: any person other than a national of a Member State;
(b) 'Application for asylum` means: a request whereby an alien seeks from a Member
State protection under the Geneva Convention by claiming refugee status within the
meaning of Article 1 of the Geneva Convention, as amended by the New York Protocol;
(c) 'Applicant for asylum` means: an alien who has made an application for asylum in
respect of which a final decision has not yet been taken;
(d) 'Examination of an application for asylum` means: all the measures for examination,
decisions or rulings given by the competent authorities on an application for asylum,
except for procedures to determine the State responsible for examining the application for
asylum prusuant to this Convention;
(e) 'Residence permit` means: any authorization issued by the authorities of a Member
State authorizing an alien to stay in its territory, with the exception of visas and 'stay
permits` issued during examination of an application for a residence permit or for
asylum;
(f) 'Entry visa` means: authorization or decision by a Member State to enable an alien to
enter its territory, subject to the other entry conditions being fulfilled;
(g) 'Transit visa` means: authorization or decision by a Member State to enable an alien
to transit through its territory or pass through the transit zone of a port or airport, subject
to the other transit conditions being fulfilled.
2. The nature of the visa shall be assessed in the light of the definitions set out in
paragraph 1 (f) and (g).
Article 2
The Member States reaffirm their obligations under the Geneva Convention, as amended
by the New York Protocol, with no geographic restriction of the scope of these
instruments, and their commitment to co-operating with the services of the United
Nations High Commissioner for Refugees in applying these instruments.
Article 3
1. Member States undertake to examine the application of any alien who applies at the
border or in their territory to any one of them for asylum.
2. That application shall be examined by a single Member State, which shall be
determined in accordance with the criteria defined in this Convention. The criteria set out
in Articles 4 to 8 shall apply in the order in which they appear.
3. That application shall be examined by that State in accordance with its national laws
and its international obligations.

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4. Each Member State shall have the right to examine an application for asylum
submitted to it by an alien, even if such examination is not its responsibility under the
criteria defined in this Convention, provided that the applicant for asylum agrees thereto.
The Member State responsible under the above criteria is then relieved of its obligations,
which are transferred to the Member State which expressed the wish to examine the
application. The latter State shall inform the Member State responsible under the said
criteria if the application has been referred to it.
5. Any Member State shall retain the right, pursuant to its national laws, to send an
applicant for asylum to a third State, in compliance with the provisions of the Geneva
Convention, as amended by the New York Protocol.
6. The process of determining the Member State responsible for examining the
application for asylum under this Convention shall start as soon as an application for
asylum is first lodged with a Member State.
7. An applicant for asylum who is present in another Member State and there lodges an
application for asylum after withdrawing his or her application during the process of
determining the State responsible shall be taken back, under the conditions laid down in
Article 13, by the Member State with which that application for asylum was lodged, with
a view to completing the process of determining the State responsible for examining the
application for asylum.
This obligation shall cease to apply if the applicant for asylum has since left the territory
of the Member States for a period of at least three months or has obtained from a Member
State a residence permit valid for more than three months.
Article 4
Where the applicant for asylum has a member of his family who has been recognized as
having refugee status within the meaning of the Geneva Convention, as amended by the
New York Protocol, in a Member State and is legally resident there, that State shall be
responsible for examining the application, provided that the persons concerned so desire.
The family member in question may not be other than the spouse of the applicant for
asylum or his or her unmarried child who is a minor of under eighteen years, or his or her
father or mother where the applicant for asylum is himself or herself an unmarried child
who is a minor of under eighteen years.
Article 5
1. Where the applicant for asylum is in possession of a valid residence permit, the
Member State which issued the permit shall be responsible for examining the application
for asylum.
2. Where the applicant for asylum is in possession of a valid visa, the Member State
which issued the visa shall be responsible for examining the application for asylum,
except in the following situations:

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(a) if the visa was issued on the written authorization of another Member State, that State
shall be responsible for examining the application for asylum. Where a Member State
first consults the central authority of another Member State, inter alia for security
reasons, the agreement of the latter shall not constitute written authorization within the
meaning of this provision.
(b) where the applicant for asylum is in possession of a transit visa and lodges his
application in another Member State in which he is not subject to a visa requirement, that
State shall be responsible for examining the application for asylum.
(c) where the applicant for asylum is in possession of a transit visa and lodges his
application in the State which issued him or her with the visa and which has received
written confirmation from the diplomatic or consular authorities of the Member State of
destination that the alien for whom the visa requirement was waived fulfilled the
conditions for entry into that State, the latter shall be responsible for examining the
application for asylum.
3. Where the applicant for asylum is in possession of more than one valid residence
permit or visa issued by different Member States, the responsibility for examining the
application for asylum shall be assumed by the Member States in the following order:
(a) the State which issued the residence permit conferring the right to the longest period
of residency or, where the periods of validity of all the permits are identical, the State
which issued the residence permit having the latest expiry date;
(b) the State which issued the visa having the latest expiry date where the various visas
are of the same type;
(c) where visas are of different kinds, the State which issued the visa having the longest
period of validity, or, where the periods of validity are identical, the State which issued
the visa having the latest expiry date. This provision shall not apply where the applicant
is in possession of one or more transit visas, issued on presentation of an entry visa for
another Member State. In that case, that Member State shall be responsible.
4. Where the applicant for asylum is in possession only of one or more residence permits
which have expired less than two years previously or one or more visas which have
expired less than six months previously and enabled him or her actually to enter the
territory of a Member State, the provisions of paragraphs 1, 2 and 3 of this Article shall
apply for such time as the alien has not left the territory of the Member States.
Where the applicant for asylum is in possession of one or more residence permits which
have expired more than two years previously or one or more visas which have expired
more than six months previously and enabled him or her to enter the territory of a
Member State and where an alien has not left Community territory, the Member State in
which the application is lodged shall be responsible.
Article 6

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When it can be proved that an applicant for asylum has irregularly crossed the border into
a Member State by land, sea or air, having come from a non-member State of the
European Communities, the Member State this entered shall be responsible for examining
the application for asylum.
That State shall cease to be responsible, however, if it is proved that the applicant has
been living in the Member State where the application for asylum was made at least six
months before making his application for asylum. In that case it is the latter Member
State which is responsible for examining the application for asylum.
Article 7
1. The responsibility for examining an application for asylum shall be incumbent upon
the Member State responsible for controlling the entry of the alien into the territory of the
Member States, except where, after legally entering a Member State in which the need for
him or her to have a visa is waived, the alien lodges his or her application for asylum in
another Member State in which the need for him or her to have a visa for entry into the
territory is also waived. In this case, the latter State shall be responsible for examining the
application for asylum.
2. Pending the entry into force of an agreement between Member States on arrangements
for crossing external borders, the Member State which authorizes transit without a visa
through the transit zone of its airports shall not be regarded as responsible for control on
entry, in respect of travellers who do not leave the transit zone.
3. Where the application for asylum is made in transit in an airport of a Member State,
that State shall be responsible for examination.
Article 8
Where no Member State responsible for examining the application for asylum can be
designated on the basis of the other criteria listed in this Convention, the first Member
State with which the application for asylum is lodged shall be responsible for examining
it.
Article 9
Any Member State, even when it is not responsible under the criteria laid out in this
Convention, may, for humanitarian reasons, based in particular on family or cultural
grounds, examine an application for asylum at the request of another Member State,
provided that the applicant so desires.
If the Member State thus approached accedes to the request, responsibility for examining
the application shall be transferred to it.
Article 10
1. The Member State responsible for examining an application for asylum according to
the criteria set out in this Convention shall be obliged to:

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(a) Take charge under the conditions laid down in Article 11 of an applicant who has
lodged an application for asylum in a different Member State,
(b) Complete the examination of the application for asylum,
(c) Readmit or take back under the conditions laid down in Article 13 an applicant whose
application is under examination and who is irregularly in another Member State,
(d) Take back, under the conditions laid down in Article 13, an applicant who has
withdrawn the application under examination and lodged an application in another
Member State,
(e) Take back, under the conditions laid down in Article 13, an alien whose application is
has rejected and who is illegally in another Member State.
2. If a Member State issues to the applicant a residence permit valid for more than three
months, the obligations specified in paragraph 1 (a) to (e) shall be transferred to that
Member State.
3. The obligations specified in paragraph 1 (a) to (d) shall cease to apply if the alien
concerned has left the territory of the Member States for a period of at least three months.
4. The obligations specified in paragraph 1 (d) and (e) shall cease to apply if the State
responsible for examining the application for asylum, following the withdrawal or
rejection of the application, takes and enforces the necessary measures for the alien to
return to his country of oirigin or to another country which he may lawfully enter.
Article 11
1. If a Member State with which an application for asylum has been lodged considers that
another Member State is responsible for examining the application, it may, as quickly as
possible and in any case within the six months following the date on which the
application was lodged, call upon the other Member State to take charge of the applicant.
If the request that charge be taken is not made within the six-month time limit,
responsibility for examining the application for asylum shall rest with the State in which
the application was lodged.
2. The request that charge be taken shall contain indications enabling the authorities of
that other State to ascertain whether it is responsible on the basis of the criteria laid down
in this Convention.
3. The State responsible in accordance with those criteria shall be determined on the basis
of the situation obtaining when the applicant for asylum first lodged his application with
a Member State.
4. The Member State shall pronounce judgment on the request within three months of
receipt of the claim. Failure to act within that period shall be tantamount to accepting the
claim.

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5. Transfer of the applicant for asylum from the Member State where the application was
lodged to the Member State responsible must take place not later than one month after
acceptance of the request to take charge or one month after the conclusion of any
proceedings initiated by the alien challenging the transfer decision if the plroceedings are
suspensory.
6. Measures taken under Article 18 may subsequently determine the details of the process
by which applicants shall be taken in charge.
Article 12
Where an application for asylum is lodged with the competent authorities of a Member
State by an applicant who is on the territory of another Member State, the determination
of the Member State responsible for examining the application for asylum shall be made
by the Member State on whose territory the applicant is. The latter Member State shall be
informed without delay by the Member State which received the application and shall
then, for the purpose of applying this Convention, be regarded as the Member State with
which the application for asylum was lodged.
Article 13
1. An applicant for asylum shall be taken back in the cases provided for in Article 3 (7)
and in Article 10 as follows:
(a) the request for the applicant to be taken back must provide indications enabling the
State with which the request is lodged to ascertain that it is responsible in accordance
with Article 3 (7) and with Article 10;
(b) the State called upon to take back the applicant shall give an answer to the request
within eight days of the matter being referred to it. Should it acknowledge responsibility,
it shall then take back the applicant for asylum as quickly as possible and at the latest one
month after it agrees to do so.
2. Measures taken under Article 18 may at a later date set out the details of the procedure
for taking the applicant back.
Article 14
1. Member States shall conduct mutual exchanges with regard to:
- national legislative or regulatory measures or practices applicable in the field of asylum,
- statistical data on monthly arrivals of applicants for asylum, and their breakdown by
nationality. Such information shall be forwarded quarterly through the General
Secretariat of the Council of the European Communities, which shall see that it is
circulated to the Member States and the Commission of the European Communities and
to the United Nations High Commissioner for Refugees.
2. The Member States may conduct mutual exchanges with regard to:

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- general information on new trends in applications for asylum,
- general information on the situation in the countries of origin or of provenance of
applicants for asylum.
3. If the Member State providing the information referred to in paragraph 2 wants it to be
kept confidential, the other Member States shall comply with this wish.
Article 15
1. Each Member State shall communicate to any Member State that so requests such
information on individual cases as is necessary for:
- determining the Member State which is responsible for examining the application for
asylum,
- examining the application for asylum,
- implementing any obligation arising under this Convention.
2. This information may only cover:
- personal details of the applicant, and, where appropriate, the members of his family (full
name and where appropriate, former name; nicknames or pseudonyms; nationality,
present and former; date and place of birth),
- identity and travel papers (references, validity, date of issue, issuing authoirity, place of
issue, etc.),
- other information necessary for establishing the identity of the applicant,
- places of residence and routes travelled,
- residence permits or visas issued by a Member State,
- the place where the application was lodged,
- the date any previous application for asylum was lodged, the date the present
application was lodged, the stage reached in the proceedings and the decision taken, if
any.
3. Furthermore, one Member State may request another Member State to let it know on
what grounds the applicant for asylum bases his or her application and, where applicable,
the grounds for any decisions taken concerning the applicant. It is for the Member State
from which the information is requested to decide whether or not to impart it. In any
event, communication of the information requested shall be subject to the approval of the
applicant for asylum.
4. This exchange of information shall be effected at the request of a Member State and
may only take place between authorities the designation of which by each Member State
has been communicated to the Committee provided for under Article 18.

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5. The information exchanged may only be used for the purposes set out in paragraph 1.
In each Member State such information may only be communicated to the authorities and
courts and tribunals entrusted with:
- determining the Member State which is responsible for examining the application for
asylum,
- examining the application for asylum,
- implementing any obligation arising under this Convention.
6. The Member State that forwards the information shall ensure that it is accurate and up-
to-date.
If it appears that this Member State has supplied information which is inaccurate or
which should not have been forwarded, the recipient Member State shall be immediately
informed thereof. They shall be obliged to correct such information or to have it erased.
7. An applicant for asylum shall have the right to receive, on request, the information
exchanged concerning him or her, for such time as it remains available.
If he or she establishes that such information is inaccurate or should not have been
forwarded, he or she shall have the right to have it corrected or erased. This right shall be
exercised in accordance with the conditions laid down in paragraph 6.
8. In each Member State concerned, the forwarding and receipt of exchanged information
shall be recorded.
9. Such information shall be kept for a period not exceeding that necessary for the ends
for which it was exchanged. The need to keep it shall be examined at the appropriate
moment by the Member State concerned.
10. In any event, the information thus communicated shall enjoy at least the same
protection as is given to similar information in the Member State which receives it.
11. If data are not processed automatically but are handled in some other form, every
Member State shall take the appropriate measures to ensure compliance with this Article
by means of effective controls. If a Member State has a monitoring budy of the type
mentioned in paragraph 12, it may assign the control task to it.
12. If one or more Member States wish to computerize all or part of the information
mentioned in paragraphs 2 and 3, such computerization is only possible if the countries
concerned have adopted laws applicable to such processing which implement the
principles of the Strasbourg Convention of 28 January 1981 for the Protection of
Individuals, with regard to automatic processing of personal data and if they have
entrusted an appropriate national body with the independent monitoring of the processing
and use of data forwarded pursuant to this Convention.
Article 16

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1. Any Member State may submit to the Committee referred to in Article 18 proposals for
revision of this Convention in order to eliminate difficulties in the application thereof.
2. If it proves necessary to revise or amend this Convention pursuant to the achievement
of the objectives set out in Article 8a of the Treaty establishing the European Economic
Community, such achievement being linked in particular to the establishment of a
harmonized asylum and a common visa policy, the Member State holding the Presidency
of the Council of the European Communities shall organize a meeting of the Committee
referred to in Article 18.
3. Any revision of this Convention or amendment hereto shall be adopted by the
Committee referred to in Article 18. It shall enter into force in accordance with the
provisions of Article 22.
Article 17
1. If a Member State experiences major difficulties as a result of a substantial change in
the circumstances obtaining on conclusion of this Convention, the State in question may
bring the matter before the Committee referred to in Article 18 so that the latter may put
to the Member States measures to deal with the situation or adopt such revisions or
amendments to this Convention as appear necessary, which shall enter into force as
provided for in Article 16 (3).
2. If, after six months, the situation mentioned in paragraph 1 still obtains, the
Committee, acting in accordance with Article 18 (2), may authorize the Member State
affected by that change to suspend temporarily the application of the provisions of this
Convention, without such suspension being allowed to impede the achievement of the
objectives mentioned in Article 8a of the Treaty establishing the European Economic
Community or contravene other international obligations of the Member States.
3. During the period of suspension, the Committee shall continue its discussions with a
view to revising the provisions of this Convention, unless it has already reached an
agreement.
Article 18
1. A Committee shall be set up comprising one representative of the Government of each
Member State.
The Committee shall be chaired by the Member State holding the Presidency of the
Council of the European Communities.
The Commission of the European Communities may participate in the discussions of the
Committee and the working parties referred to in paragraph 4.
2. The Committee shall examine, at the request of one or more Member States, any
question of a general nature concerning the application or interpretation of this
Convention.

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The Committee shall determine the measures referred to in Article 11 (6) and Article 13
(2) and shall give the authorization referred to in Article 17 (2).
The Committee shall adopt decisions revising or amending the Convention pursuant to
Articles 16 and 17.
3. The Committee shall take its decisions unanimously, except where it is acting pursuant
to Article 17 (2), in which case it shall take its decisions by a majority of two-thirds of
the votes of its members.
4. The Committee shall determine its rules of procedure and may set up working parties.
The Secretariat of the Committee and of the working parties shall be provided by the
General Secretariat of the Council of the European Communities.
Article 19
As regards the Kingdom of Denmark, the provisions of this Convention shall not apply to
the Faroe Islands nor to Greenland unless a declaration to the contrary is made by the
Kingdom of Denmark. Such a declaration may be made at any time by a communication
to the Government of Ireland which shall inform the Governments of the other Member
States thereof.
As regards the French Republic, the provisions of this Convention shall apply only to the
European territory of the French Republic.
As regards the Kingdom of the Netherlands, the provisions of this Convention shall apply
only to the territory of the Kingdom of the Netherlands in Europe.
As regards the United Kingdom the provisions of this Convention shall apply only to the
United Kingdom of Great Britain and Northern Ireland. They shall not apply to the
European territories for whose external relations the United Kingdom is responsible
unless a declaration to the contrary is made by the United Kingdom. Such a declaration
may be made at any time by a communication to the Government of Ireland, which shall
inform the Governments of the other Member States thereof.
Article 20
This Convention shall not be the subject of any reservations.
Article 21
1. This Convention shall be open for the accession of any State which becomes a member
of the European Communities. The instruments of accession will be deposited with the
Government of Ireland.
2. It shall enter into force in respect of any State which accedes thereto on the first day of
the third month following the deposit of its instrument of accession.
Article 22

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1. This Convention shall be subject to ratification, acceptance or approval. The
instruments of ratification, acceptance or approval shall be deposited with the
Government of Ireland.
2. The Government of Ireland shall notify the Governments of the other Member States
of the deposit of the instruments of ratification, acceptance or approval.
3. This Convention shall enter into force on the first day of the third month following the
deposit of the instrument of ratification, acceptance or approval by the last signatory State
to take this step.
The State with which the instruments of ratification, acceptance or approval are deposited
shall notify the Member States of the date of entry into force of this Convention.
En fe de lo cual, los plenipotenciarios abajo firmantes suscriben el presente Convenio.
Til bekræftelse heraf har undertegnede befuldmægtigede underskrevet denne konvention.
Zu Urkund dessen haben die unterzeichneten Bevollmächtigten ihre Unterschriften unter
dieses Übereinkommen gesetzt.
Óå ðßóôùóç ôùí áíùôÝñù, ïé êÜôùèé ðëçñåîïýóéïé õðÝãñáøáí ôçí ðáñïýóá óýìâáóç.
In witness whereof, the undersigned plenipotentiaries have hereunto set their hands.
En foi de quoi, les plénipotentiaires soussignés ont apposé leurs signatures au bas de la
présente convention.
Dá fhianú sin, chuir na Lánchumhachtaigh thíos-sínithe a lámh leis an gCoinbhinsiún seo.
In fede di che, i plenipotenziari sottoscritti hanno apposto le loro firme in calce alla
presente convenzione.
Ten blijke waarvan de ondergetekende gevolmachtigden deze overeenkomst hebben
ondertekend.
Em fé do que os plenipotenciários abaixo assinados apuseram as suas assinaturas no final
da presente convenção.
Hecho en Dublín el quince de junio de mil novecientos noventa, en un ejemplar único, en
lenguas alemana, inglesa, danesa, española, francesa, griega, irlandesa, italiana,
neerlandesa y portuguesa, dando fe asimismo los textos redactados en cada una de dichas
lenguas depositados en los archivos del Gobierno de Irlanda que transmitirá una copia
certificada conforme a cada uno de los Estados miembros.
Udfærdiget i Dublin, den femtende juni nitten hundrede og halvfems i ét eksemplar på
dansk, engelsk, fransk, græsk, irsk, italiensk, nederlandsk, portugisisk, spansk og tysk,
hvilke tekster har samme gyldighed og deponeres i arkiverne hos Irlands regering, som
sender en bekræftet kopi til hver af de andre medlemsstater.

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Geschehen zu Dublin am fünfzehnten Juni neunzehnhundertneunzig, in einer Urschrift in
dänischer, deutscher, englischer, französischer, griechischer, irischer, italienischer,
niederländischer, portugiesischer und spanischer Sprache, wobei jeder Wortlaut
gleichermaßen verbindlich ist; sie wird im Archiv der Regierung von Irland hinterlegt,
die den übrigen Mitgliedstaaten jeweils eine beglaubigte Abschrift übermittelt.
¸ãéíå óôï Äïõâëßíï óôéò äÝêáðÝíôå Éïõíßïõ ÷ßëéá åííéáêüóéá åíåíÞíôá, óå Ýíá ìüíï
áíôßôõðï óôçí áããëéêÞ, ãáëëéêÞ, ãåñìáíéêÞ, äáíéêÞ, åëëçíéêÞ, éñëáíäéêÞ, éóðáíéêÞ,
éôáëéêÞ, ïëëáíäéêÞ êáé ðïñôïãáëéêÞ ãëþóóá. Ôá êåßìåíá óôéò ãëþóóåò áõôÝò åßíáé åîßóïõ
áõèåíôéêÜ êáé åßíáé êáôáôåèåéìÝíá óôá áñ÷åßá ôçò êõâÝñíçóçò ôçò Éñëáíäßáò ç ïðïßá èá
äéáâéâÜóåé åðéêõñùìÝíï áíôßãñáöï óå êÜèå êñÜôïò ìÝëïò.
Done at Dublin this fifteenth day of June in the year one thousand nine hundred and
ninety, in a single original, in the Danish, Dutch, English, French, German, Greek, Irish,
Italian, Portuguese and Spanish languages, the texts drawn up in each of these languages
being equally authentic and being deposited in the archives of the Government of Ireland
which shall transmit a certified copy to each of the other Member States.
Fait à Dublin, le quinze juin mil neuf cent quatre-vingt-dix, en un exemplaire unique, en
langues allemande, anglaise, danoise, espagnole, française, grecque, irlandaise, italienne,
néerlandaise et portugaise, les textes établis dans chacune de ces langues faisant
également foi et étant déposés dans les archives du gouvernement d'Irlande qui
transmettra une copie certifiée conforme à chacun des autres États membres.
Arna dhéanamh i mBaile Átha Cliath ar an gcúigiú lá déag de Mheitheamh sa bhliain
míle naoi gcéad nócha, i scríbhinn bhunaidh amháin sa Bhéarla, sa Danmhairgis, sa
Fhraincis, sa Ghaeilge, sa Ghearmáinis, sa Ghréigis, san Iodáilis, san Ollainnis, sa
Phortaingéilis agus sa Spáinnis agus comhúdarás ag na téacsanna i ngach ceann de na
teangacha sin; déanfar iad a thaisceadh i gcartlann Rialtas na hÉireann agus cuirfidh an
Rialtas sin cóip dheimhnithe chuig gach ceann de na Ballstáit eile.
Fatto a Dublino, addì quindici giugno millenovecentonovanta, in esemplare unico, nelle
lingue danese, francese, greca, inglese, irlandese, italiana, olandese, portoghese, spagnola
e tedesca, il cui testo in ciascuna di queste lingue fa ugualmente fede ed è depositato
negli archivi del governo d'Irlanda che provvederà a rimetterne copia certificata conforme
a ciascuno degli altri Stati membri.
Gedaan te Dublin, de vijftiende juni negentienhonderd negentig, in één exemplaar in de
Deense, de Duitse, de Engelse, de Spaanse, de Franse, de Griekse, de Ierse, de Italiaanse,
de Nederlandse en de Portugese taal, zijnde de teksten in elk van deze talen gelijkelijk
authentiek en nedergelegd in het archief van de regering van Ierland, die een voor
eensluidend gewaarmerkt afschrift daarvan toezendt aan alle overige lidstaten.
Feito em Dublim, em quinze de Junho de mil novecentos e noventa, num único exemplar,
nas línguas alemã, dinamarquesa, espanhola, francesa, grega, inglesa, irlandesa, italiana,
neerlandesa e portuguesa, fazendo fé qualquer dos textos, que serão depositados nos
arquivos do Governo da Irlanda, que enviará uma cópia autenticada a cada um dos outros
Estados-membros.

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Pour Sa Majesté le Roi des Belges

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UNHCR Position on Conventions Recently Concluded in
Europe (Dublin and Schengen Conventions)
Publisher UN High Commissioner for Refugees (UNHCR)
Publication
16 August 1991
Date
Citation /
Document 3 European Series 2, p. 385
Symbol
UN High Commissioner for Refugees (UNHCR), UNHCR Position on Conventions
Recently Concluded in Europe (Dublin and Schengen Conventions), 16 August 1991, 3
Cite as
European Series 2, p. 385, available at:
https://www.refworld.org/docid/3ae6b31b83.html [accessed 16 July 2019]
The UNHCR comments relate to: the Convention Determining the State Responsible
for Examining Applications for Asylum lodged in one of the Member States of the
European Communities ("Dublin Convention") of 15 June 1990; and the Convention
Comments Implementing the Schengen Agreement of 14 June 1985 between the Governments of
the States of the Benelux Economic Union, the Federal Republic of Germany and the
French Republic, on the Gradual Abolition of Checks at their Common Borders of 19
June 1990.

Europe has traditionally enjoyed a liberal refugee and asylum policy through most of the twentieth
century. The large influx of refugees and migrants fleeing to Europe since the 1980s has, however,
over-burdened governments, prompted some xenophobia within the European populations and caused
governments to resort to, inter alia, immigration measures to stem the flow of those requesting
asylum. Against this backdrop and in anticipation of the 1992 establishment of Europe without
internal borders, two multi-State conventions have been signed which should become effective in
1992.

The Convention Determining the State Responsible for Examining Applications for Asylum Lodged
in One of the Member States of the European Communities, commonly referred to as the "Dublin
Convention," addresses which country is responsible for considering an asylum claim. The
Convention on the Application of the Schengen Agreement of 14 June 1985 Relating to the Gradual
Suppression of Controls at Common Frontiers, commonly referred to as the "Schengen Convention",
deals more broadly with border controls in addition to refugee and asylum issues, such as drug
trafficking. Both these instruments (together, "Conventions") represent commendable efforts to share
and allocate the burden of review of refugee and asylum claims, and to establish effective
arrangements by which claims can be heard.

These regional Conventions reflect the parties' recognition that the protection of refugees, the
elimination of the problem of "refugees in orbit" and the reduction in multiple or unfounded claims
are international concerns which should be addressed among States, particularly those geographically
proximate and whose asylum procedures are similar. UNHCR considers such cooperation to be one of

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the very "measures calculated to improve the situation of refugees and to reduce the number requiring
protection." UNHCR Stat., para. 8(a),(b).

Large numbers of unfounded claims, compounded by multiple claims of asylum-seekers in several
States, have taxed States' immigration resources and contributed to a backlog in the consideration of
claims. This is undesirable from the point of view of refugee protection and UNHCR appreciates that
one intent of the Conventions is to guarantee prompt review of claims, in accordance with the
applicable international instruments, and assign clear responsibility for protection and return of those
claimants deemed not to be refugees.

This effort is consistent with recommendations already articulated by the Executive Committee, for
example in its 1979 Conclusion No. 15(Refugees without an Asylum Country). In this Conclusion,
the Executive Committee called upon States to consider criteria by which States could agree as to
which State would be responsible for examining an asylum request, and agreements providing for the
return by States of persons who have entered into their territory from another State. Such provisions,
was noted, should ensure review of claims, reduce multiple claims, and minimize the creation of
"refugees in orbit."

Executive Committee Conclusion No. 15 also called upon States to facilitate, in the interest of family
reunification and for humanitarian reasons, the admission to their territory of family members of
persons to whom refugee status or asylum has been granted. UNHCR appreciates the inclusion of
provisions in the conventions affording States the flexibility to admit family members and, for
humanitarian reasons, such other persons as the States deem appropriate. UNHCR hopes that in their
implementation of these provisions States take into account the call of the Executive Committee in its
1981 Conclusion No. 24¯ (Family Reunification) to States "to apply liberal criteria in identifying
those family members who can be admitted with a view to promoting a comprehensive reunification
of the family." In addition, consistent with the recognition that there will be humanitarian reasons
which will cause States to be flexible on entry, UNHCR recommends that these reasons be understood
to include considerations of language, education and former association.

UNHCR welcomes the reaffirmation, in both Conventions of the obligations of parties under the,
1951 Convention and the 1967 Protocol, and understands that, these instruments, as expressions of
preeminent international law, should provide guidance and direction for the implementation of the
regional Conventions. The fundamental protection of the '51 Convention is that of nonrefoulement.
States are, "jointly and severally" responsible for the application of this principle so as to do
everything in their power to avoid asylum-seekers being, returned to their countries of origin without
an exhaustive examination of their claims.

UNHCR also welcomes the recognition in the Dublin Convention of the value and indeed necessity of
continued cooperation and coordination with UNHCR. In light of its experience and its charge under
its mandate to provide protection to refugees and supervise the application of international
agreements, UNHCR believes it can play a valuable role in relation to implementation of these
Conventions, including through facilitating dialogue among States and working with States towards
harmonization of internal asylum procedures UNHCR could also be of assistance in the exchange and
dissemination of legal and country of origin information informed decisions in refugee status
determination procedures and effective protection of persons in need depend on clear, accurate and
current information, regarding the situations of countries of origin. The dissemination of country of
origin information already available in the public domain is an urgent need. UNHCR's role as
collector and a potential provider of such information is currently under active consideration. UNHCR

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has already been working on an ad hoc basis with States to expand its own information base and that
of States in this regard.

This being said, UNHCR emphasizes that the States parties to the conventions, themselves, remain
responsible for daily implementation by their own services of the Conventions. Refugee status
determination, removal to third countries, securing necessary guarantees of "Safety", and such other
obligations contemplated by Articles 11, 13, and 15 of the Dublin Convention are basic State
responsibilities.

Against this background, UNHCR hopes that means will be found to associate it appropriately with
the mechanisms or committees envisaged in the respective instruments to monitor their
implementation.

In addition to the above general comments, UNHCR would like to make the following related
observations.

Re: Harmonization of Refugee Status Procedures and Practices

The Conventions provisions setting out criteria by which States assume or deny responsibility for
review of refugee status or asylum claims should reduce the multiplicity of claims, ensure that claims
are considered promptly and fairly, and provide for the protection of an individual not permitted to
remain in a State which does not accept responsibility for determination of refugee status. However,
the significant differences among States' procedures governing asylum and refugee status
determinations such as initial hearing procedures, appeals, conditions for stay, deportation, border
controls and criteria for granting status may perpetuate some of the very problems both Conventions
sought to solve.

In the absence of harmonization of procedures, differences both in procedures and in standards for
admission may permit exploitation of the current imbalance in the refugee and asylum burden of
States. Furthermore, strict assignment of responsibilities on the basis of which State authorized entry
could lead to rejection of individual claims which, in another State party, might have been recognized.
Presumably, pursuant to Article 3, paragraph 4, each State party is free to examine any, claim, even a
claim previously rejected by another State.

UNHCR can assist States in developing and promoting harmonized standards of application (e.g., to
whom the standards apply, which are countries of reception or responsibility), standards of treatment
(e.g., how the standards apply and when), standards of implementation and supervision (e.g. ,
definitions, treatment of asylum-seekers, cooperation in the processes of identification, return, country
of origin determination, readmission, determination of claims, solutions and repatriation). Through its
branch and regional offices, and especially with financial underwriting from recipient States, UNHCR
can be an active presence in assisting countries of origin to prepare conditions to permit repatriation,
or return of non-refugees.

Harmonization of the interpretation of the Dublin and Schengen Conventions with each other and
other international instruments is also an interest of UNHCR. Since the Conventions provisions for
informal consultation between States should not be a substitute for adherence to international
obligations (non-refoulement, etc.) UNHCR has a role to play in assisting States to achieve
consistency and complementarity between the requirements of regional and of international refugee
instruments.

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Re: Visas-and Carrier Sanctions

Both Conventions take as their starting point for assigning responsibilities the fact of authorization of
entry. The State which provided the entry authorization a fact determinable in accordance with a
hierarchy of explicit rules is normally the State which must accept responsibility for considering the
application. There is clearly a logic in this approach, but UNHCR is concerned where the emphasis on
this "authorization principle" has the effect of causing States to strengthen even further both their
entry requirements (visa arrangements), and their mechanisms to enforce these requirements (airline
sanctions).

Asylum-seekers who are refugees are by definition persons whose flight from their country of origin
is typically marked by the unwillingness or inability of their governments to provide them with
protection from persecution. Often the persecutor feared is the national authorities from whom a
refugee may not safely be able to obtain a valid passport, necessary to obtain a visa to enter another
country. Visa prerequisites such as the possession of an address in the country of refuge, monetary
sums, a return air ticket or family ties are prerequisites a refugee will very often have, difficulty
meeting. For some refugees, the very real dangers attendant in even approaching governmental
authorities for visas hinder considerably their search for protection

States are increasingly enacting and enforcing visa requirements through airline personnel. Although
carrier sanctions are not necessarily contrary to international law, UNHCR is particularly concerned
about the imposition of carrier sanctions and strict visa requirements which do not distinguish asylum
seekers from other aliens.

In symbiotic relation to visa requirements are the documentation review obligations States in effect
impose upon carriers. Forcing carriers to verify visas and other travel documentation helps to shift the
burden of determining the need for protection to those whose motivation is to avoid monetary
penalties on their corporate employer, rather than to provide protection to individuals. In so doing, it
contributes to placing this very important responsibility in the hands of those (a) unauthorized to
make asylum determinations on behalf of States (b) thoroughly untrained in the nuances and
procedures of refugee and asylum principles, and (c) motivated by economic rather than humanitarian
considerations. Inquiry into whether the absence of valid documentation may evidence the need for
immediate protection of the traveller is never reached.

UNHCR believes that the concerns which States attempt to address through carrier sanctions and
visas can be better addressed through the careful harmonization of standards of application, treatment
and implementation. Timely consideration of claims by trained and authorized personnel who have
the authority to exercise humanitarian discretion urged in the Conventions, along with coordinated
standards of return and deportation, serve the same ends of preventing unfounded claims, but do not
foreclose the chance to request protection t to those in true need of it. As recognized by the Executive
Committee in its 1983 Conclusion No. 30¯ (The Problem of Manifestly Unfounded or Abusive
Applications for Refugee Status or Asylum), the problem of large numbers of applications for refugee
status can be mitigated by the allocation of sufficient resources to the determination of refugee status
processes to shorten the appeal time.

Recognizing nonetheless that carrier sanctions are unlikely to be revoked in the immediate future,
UNHCR urges States to enforce such sanctions only in the event that carriers demonstrate negligence
in checking documents and knowingly and willingly bring into the States aliens who do not possess
valid entry documents and who do not leave their countries of origin due to a well-founded the burden
of proof falls more fear of persecution. In this posture, the burden of proof falls more appropriately

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upon the shoulders of the States in recognition of the fact that States, not carrier personnel, have the
training and appropriate motivation to identify those with well-founded claims for refuge and asylum.

This standard is consistent with and underscores the flexibility in the Conventions expressly given to
States to admit persons, even in the absence of proper documentation, for humanitarian reasons. Here
it should be noted that carrier personnel are neither qualified, nor so inclined in light of penalties, to
permit transport of those to whom the State might otherwise extend protection for humanitarian
reasons.

Re: Sharing of Information

UNHCR welcomes the willingness of States to share with each other and with UNHCR statistical
information and data concerning refugee trends, and is appreciative of States' recognition that
information concerning specific refugee, and asylum claimants requires confidential treatment. The
sharing of such general,information may aid protection in enhancing the capability to foresee refugee
trends and issues, as well as assist countries in achieving their burdensharing goals.

However, because of the possibility of misuse of confidential information, for example by countries
of origin to engage in retaliatory measures or punitive treatment of refugees, asylum-seekers or their
family members, UNHCR hopes that States adopt effective measures by which such information is
afforded every safeguard. Current Convention provisions refer to procedures by which an applicant
for asylum may be able to have the receiving country correct or erase information he or she believes
should not have been forwarded to that country. UNHCR urges the adoption of measures by which
potentially damaging transfers of information can also be preempted, not only remedied after the
event. In light of the ability by computer to copy or transfer with ease large quantities of information,
States should further ensure that access to such information is strictly controlled and that the approval
of the transfer of information potentially identifying a claimant or refugee is made by qualified
personnel, sensitive to the inherent dangers of information-sharing. UNHCR welcomes the
Conventions' requirement that the exchange of information by computer take place only among
countries that are party to the 1981 Council of Europe Convention for the Protection of Individuals
with regard to Automatic Processing of Personal Data.

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29.6.2013 EN Official Journal of the European Union L 180/31

REGULATION (EU) No 604/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 26 June 2013
establishing the criteria and mechanisms for determining the Member State responsible for
examining an application for international protection lodged in one of the Member States by a
third-country national or a stateless person (recast)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE (3) The European Council, at its special meeting in Tampere
EUROPEAN UNION, on 15 and 16 October 1999, agreed to work towards
establishing the CEAS, based on the full and inclusive
application of the Geneva Convention Relating to the
Status of Refugees of 28 July 1951, as supplemented
Having regard to the Treaty on the Functioning of the European by the New York Protocol of 31 January 1967 (‘the
Union, and in particular Article 78(2)(e) thereof, Geneva Convention’), thus ensuring that nobody is sent
back to persecution, i.e. maintaining the principle of non-
refoulement. In this respect, and without the responsibility
criteria laid down in this Regulation being affected,
Member States, all respecting the principle of non-
Having regard to the proposal from the European Commission, refoulement, are considered as safe countries for third-
country nationals.

Having regard to the opinion of the European Economic and
Social Committee (1),
(4) The Tampere conclusions also stated that the CEAS
should include, in the short-term, a clear and workable
method for determining the Member State responsible
for the examination of an asylum application.
Having regard to the opinion of the Committee of the
Regions (2),

(5) Such a method should be based on objective, fair criteria
Acting in accordance with the ordinary legislative procedure (3), both for the Member States and for the persons
concerned. It should, in particular, make it possible to
determine rapidly the Member State responsible, so as to
guarantee effective access to the procedures for granting
international protection and not to compromise the
Whereas:
objective of the rapid processing of applications for inter
national protection.

(1) A number of substantive changes are to be made to
Council Regulation (EC) No 343/2003 of 18 February
2003 establishing the criteria and mechanisms for deter (6) The first phase in the creation of a CEAS that should
mining the Member State responsible for examining an lead, in the longer term, to a common procedure and a
asylum application lodged in one of the Member States uniform status, valid throughout the Union, for those
by a third-country national (4). In the interests of clarity, granted international protection, has now been
that Regulation should be recast. completed. The European Council of 4 November
2004 adopted The Hague Programme which set the
objectives to be implemented in the area of freedom,
security and justice in the period 2005-2010. In this
respect, The Hague Programme invited the European
(2) A common policy on asylum, including a Common
Commission to conclude the evaluation of the first-
European Asylum System (CEAS), is a constituent part
phase legal instruments and to submit the second-phase
of the European Union’s objective of progressively estab
instruments and measures to the European Parliament
lishing an area of freedom, security and justice open to
and to the Council with a view to their adoption
those who, forced by circumstances, legitimately seek
before 2010.
protection in the Union.

(1) OJ C 317, 23.12.2009, p. 115.
(2) OJ C 79, 27.3.2010, p. 58.
(3) Position of the European Parliament of 7 May 2009 (OJ C 212 E, (7) In the Stockholm Programme, the European Council
5.8.2010, p. 370) and position of the Council at first reading of
reiterated its commitment to the objective of establishing
6 June 2013 (not yet published in the Official Journal). Position of
the European Parliament of 10 June 2013 (not yet published in the a common area of protection and solidarity in
Official Journal). accordance with Article 78 of the Treaty on the Func
(4) OJ L 50, 25.2.2003, p. 1. tioning of the European Union (TFEU), for those granted

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L 180/32 EN Official Journal of the European Union 29.6.2013

international protection, by 2012 at the latest. should apply to the procedure for the determination of
Furthermore it emphasised that the Dublin system the Member State responsible as regulated under this
remains a cornerstone in building the CEAS, as it Regulation, subject to the limitations in the application
clearly allocates responsibility among Member States for of that Directive.
the examination of applications for international
protection.

(12) Directive 2013/32/EU of the European Parliament and of
the Council of 26 June 2013 on common procedures for
(8) The resources of the European Asylum Support Office granting and withdrawing international protection (4)
(EASO), established by Regulation (EU) No 439/2010 of should apply in addition and without prejudice to the
the European Parliament and of the Council (1), should provisions concerning the procedural safeguards
be available to provide adequate support to the relevant regulated under this Regulation, subject to the limitations
services of the Member States responsible for imple in the application of that Directive.
menting this Regulation. In particular, EASO should
provide solidarity measures, such as the Asylum Inter
vention Pool with asylum support teams, to assist
those Member States which are faced with particular
(13) In accordance with the 1989 United Nations Convention
pressure and where applicants for international
on the Rights of the Child and with the Charter of
protection (‘applicants’) cannot benefit from adequate
Fundamental Rights of the European Union, the best
standards, in particular as regards reception and
interests of the child should be a primary consideration
protection.
of Member States when applying this Regulation. In
assessing the best interests of the child, Member States
should, in particular, take due account of the minor’s
well-being and social development, safety and security
(9) In the light of the results of the evaluations undertaken considerations and the views of the minor in accordance
of the implementation of the first-phase instruments, it is with his or her age and maturity, including his or her
appropriate, at this stage, to confirm the principles background. In addition, specific procedural guarantees
underlying Regulation (EC) No 343/2003, while for unaccompanied minors should be laid down on
making the necessary improvements, in the light of account of their particular vulnerability.
experience, to the effectiveness of the Dublin system
and the protection granted to applicants under that
system. Given that a well-functioning Dublin system is
essential for the CEAS, its principles and functioning
should be reviewed as other components of the CEAS (14) In accordance with the European Convention for the
and Union solidarity tools are built up. A comprehensive Protection of Human Rights and Fundamental Freedoms
‘fitness check’ should be foreseen by conducting an and with the Charter of Fundamental Rights of the
evidence-based review covering the legal, economic and European Union, respect for family life should be a
social effects of the Dublin system, including its effects primary consideration of Member States when applying
on fundamental rights. this Regulation.

(10) In order to ensure equal treatment for all applicants and (15) The processing together of the applications for inter
beneficiaries of international protection, and consistency national protection of the members of one family by a
with the current Union asylum acquis, in particular with single Member State makes it possible to ensure that the
Directive 2011/95/EU of the European Parliament and of applications are examined thoroughly, the decisions
the Council of 13 December 2011 on standards for the taken in respect of them are consistent and the
qualification of third-country nationals or stateless members of one family are not separated.
persons as beneficiaries of international protection, for
a uniform status for refugees or for persons eligible for
subsidiary protection, and for the content of the
protection granted (2), the scope of this Regulation (16) In order to ensure full respect for the principle of family
encompasses applicants for subsidiary protection and unity and for the best interests of the child, the existence
persons eligible for subsidiary protection. of a relationship of dependency between an applicant
and his or her child, sibling or parent on account of
the applicant’s pregnancy or maternity, state of health
or old age, should become a binding responsibility
(11) Directive 2013/33/EU of the European Parliament and of criterion. When the applicant is an unaccompanied
the Council of 26 June 2013 laying down standards for minor, the presence of a family member or relative on
the reception of applicants for international protection (3) the territory of another Member State who can take care
of him or her should also become a binding responsi
bility criterion.
(1) OJ L 132, 29.5.2010, p. 11.
(2) OJ L 337, 20.12.2011, p. 9.
(3) See page 96 of this Official Journal. (4) See page 60 of this Official Journal.

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29.6.2013 EN Official Journal of the European Union L 180/33

(17) Any Member State should be able to derogate from the Fundamental Rights of the European Union, other inter
responsibility criteria, in particular on humanitarian and national human rights and refugee rights.
compassionate grounds, in order to bring together family
members, relatives or any other family relations and
examine an application for international protection
lodged with it or with another Member State, even if (22) A process for early warning, preparedness and
such examination is not its responsibility under the management of asylum crises serving to prevent a
binding criteria laid down in this Regulation. deterioration in, or the collapse of, asylum systems,
with EASO playing a key role using its powers under
Regulation (EU) No 439/2010, should be established in
order to ensure robust cooperation within the framework
of this Regulation and to develop mutual trust among
(18) A personal interview with the applicant should be
Member States with respect to asylum policy. Such a
organised in order to facilitate the determination of the
process should ensure that the Union is alerted as soon
Member State responsible for examining an application
as possible when there is a concern that the smooth
for international protection. As soon as the application
functioning of the system set up by this Regulation is
for international protection is lodged, the applicant
being jeopardised as a result of particular pressure on,
should be informed of the application of this Regulation
and/or deficiencies in, the asylum systems of one or
and of the possibility, during the interview, of providing
more Member States. Such a process would allow the
information regarding the presence of family members,
Union to promote preventive measures at an early
relatives or any other family relations in the Member
stage and pay the appropriate political attention to
States, in order to facilitate the procedure for determining
such situations. Solidarity, which is a pivotal element in
the Member State responsible.
the CEAS, goes hand in hand with mutual trust. By
enhancing such trust, the process for early warning,
preparedness and management of asylum crises could
improve the steering of concrete measures of genuine
(19) In order to guarantee effective protection of the rights of and practical solidarity towards Member States, in order
the persons concerned, legal safeguards and the right to to assist the affected Member States in general and the
an effective remedy in respect of decisions regarding applicants in particular. In accordance with Article 80
transfers to the Member State responsible should be TFEU, Union acts should, whenever necessary, contain
established, in accordance, in particular, with Article 47 appropriate measures to give effect to the principle of
of the Charter of Fundamental Rights of the European solidarity, and the process should be accompanied by
Union. In order to ensure that international law is such measures. The conclusions on a Common
respected, an effective remedy against such decisions Framework for genuine and practical solidarity towards
should cover both the examination of the application Member States facing particular pressures on their asylum
of this Regulation and of the legal and factual situation systems, including through mixed migration flows,
in the Member State to which the applicant is transferred. adopted by the Council on 8 March 2012, provide for
a ‘tool box’ of existing and potential new measures,
which should be taken into account in the context of a
mechanism for early warning, preparedness and crisis
management.
(20) The detention of applicants should be applied in
accordance with the underlying principle that a person
should not be held in detention for the sole reason that
he or she is seeking international protection. Detention (23) Member States should collaborate with EASO in the
should be for as short a period as possible and subject to gathering of information concerning their ability to
the principles of necessity and proportionality. In manage particular pressure on their asylum and
particular, the detention of applicants must be in reception systems, in particular within the framework
accordance with Article 31 of the Geneva Convention. of the application of this Regulation. EASO should
The procedures provided for under this Regulation in regularly report on the information gathered in
respect of a detained person should be applied as a accordance with Regulation (EU) No 439/2010.
matter of priority, within the shortest possible deadlines.
As regards the general guarantees governing detention, as
well as detention conditions, where appropriate, Member
States should apply the provisions of Directive (24) In accordance with Commission Regulation (EC) No
2013/33/EU also to persons detained on the basis of 1560/2003 (1), transfers to the Member State responsible
this Regulation. for examining an application for international protection
may be carried out on a voluntary basis, by supervised
departure or under escort. Member States should
promote voluntary transfers by providing adequate
(21) Deficiencies in, or the collapse of, asylum systems, often information to the applicant and should ensure that
aggravated or contributed to by particular pressures on supervised or escorted transfers are undertaken in a
them, can jeopardise the smooth functioning of the humane manner, in full compliance with fundamental
system put in place under this Regulation, which could rights and respect for human dignity, as well as the
lead to a risk of a violation of the rights of applicants as
set out in the Union asylum acquis and the Charter of (1) OJ L 222, 5.9.2003, p. 3.

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L 180/34 EN Official Journal of the European Union 29.6.2013

best interests of the child and taking utmost account of person and on requests for the comparisons with
developments in the relevant case law, in particular as Eurodac data by Member States’ law enforcement auth
regards transfers on humanitarian grounds. orities and Europol for law enforcement purposes (2).

(25) The progressive creation of an area without internal (30) The operation of the Eurodac system, as established by
frontiers in which free movement of persons is guar Regulation (EU) No 603/2013, should facilitate the appli
anteed in accordance with the TFEU and the estab cation of this Regulation.
lishment of Union policies regarding the conditions of
entry and stay of third-country nationals, including
common efforts towards the management of external
borders, makes it necessary to strike a balance between (31) The operation of the Visa Information System, as estab
responsibility criteria in a spirit of solidarity. lished by Regulation (EC) No 767/2008 of the European
Parliament and of the Council of 9 July 2008 concerning
the Visa Information System (VIS) and the exchange of
data between Member States on short-stay visas (3), and
in particular the implementation of Articles 21 and 22
(26) Directive 95/46/EC of the European Parliament and of thereof, should facilitate the application of this Regu
the Council of 24 October 1995 on the protection of lation.
individuals with regard to the processing of personal data
and on the free movement of such data (1) applies to the
processing of personal data by the Member States under
this Regulation.
(32) With respect to the treatment of persons falling within
the scope of this Regulation, Member States are bound
by their obligations under instruments of international
law, including the relevant case-law of the European
(27) The exchange of an applicant’s personal data, including Court of Human Rights.
sensitive data on his or her health, prior to a transfer,
will ensure that the competent asylum authorities are in a
position to provide applicants with adequate assistance
and to ensure continuity in the protection and rights (33) In order to ensure uniform conditions for the implemen
afforded to them. Special provisions should be made to tation of this Regulation, implementing powers should be
ensure the protection of data relating to applicants conferred on the Commission. Those powers should be
involved in that situation, in accordance with Directive exercised in accordance with Regulation (EU) No
95/46/EC. 182/2011 of the European Parliament and of the
Council of 16 February 2011 laying down the rules
and general principles concerning mechanisms for
control by the Member States of the Commission’s
(28) The application of this Regulation can be facilitated, and exercise of implementing powers (4).
its effectiveness increased, by bilateral arrangements
between Member States for improving communication
between competent departments, reducing time limits
for procedures or simplifying the processing of requests (34) The examination procedure should be used for the
to take charge or take back, or establishing procedures adoption of a common leaflet on Dublin/Eurodac, as
for the performance of transfers. well as a specific leaflet for unaccompanied minors; of
a standard form for the exchange of relevant information
on unaccompanied minors; of uniform conditions for the
consultation and exchange of information on minors and
dependent persons; of uniform conditions on the prep
(29) Continuity between the system for determining the aration and submission of take charge and take back
Member State responsible established by Regulation requests; of two lists of relevant elements of proof and
(EC) No 343/2003 and the system established by this circumstantial evidence, and the periodical revision
Regulation should be ensured. Similarly, consistency thereof; of a laissez passer; of uniform conditions for the
should be ensured between this Regulation and Regu consultation and exchange of information regarding
lation (EU) No 603/2013 of the European Parliament transfers; of a standard form for the exchange of data
and of the Council of 26 June 2013 on the establishment before a transfer; of a common health certificate; of
of ‘Eurodac’ for the comparison of fingerprints for the uniform conditions and practical arrangements for the
effective application of Regulation (EU) No 604/2013 exchange of information on a person’s health data
establishing the criteria and mechanisms for determining before a transfer, and of secure electronic transmission
the Member State responsible for examining an appli channels for the transmission of requests.
cation for international protection lodged in one of the
Member States by a third-country national or a stateless
(2) See page 1 of this Official Journal.
(3) OJ L 218, 13.8.2008, p. 60.
(1) OJ L 281, 23.11.1995, p. 31. (4) OJ L 55, 28.2.2011, p. 13.

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29.6.2013 EN Official Journal of the European Union L 180/35

(35) In order to provide for supplementary rules, the power to (40) Since the objective of this Regulation, namely the estab
adopt acts in accordance with Article 290 TFEU should lishment of criteria and mechanisms for determining the
be delegated to the Commission in respect of the identi Member State responsible for examining an application
fication of family members, siblings or relatives of an for international protection lodged in one of the Member
unaccompanied minor; the criteria for establishing the States by a third-country national or a stateless person,
existence of proven family links; the criteria for cannot be sufficiently achieved by the Member States and
assessing the capacity of a relative to take care of an can therefore, by reason of the scale and effects of this
unaccompanied minor, including where family Regulation, be better achieved at Union level, the Union
members, siblings or relatives of the unaccompanied may adopt measures in accordance with the principle of
minor stay in more than one Member State; the subsidiarity as set out in Article 5 of the Treaty on
elements for assessing a dependency link; the criteria European Union (TEU). In accordance with the
for assessing the capacity of a person to take care of a principle of proportionality, as set out in that Article,
dependent person and the elements to be taken into this Regulation does not go beyond what is necessary
account in order to assess the inability to travel for a in order to achieve that objective.
significant period of time. In exercising its powers to
adopt delegated acts, the Commission shall not exceed
the scope of the best interests of the child as provided for
under Article 6(3) of this Regulation. It is of particular (41) In accordance with Article 3 and Article 4a(1) of
importance that the Commission carry out appropriate Protocol No 21 on the position of the United
consultations during its preparatory work, including at Kingdom and Ireland in respect of the Area of
expert level. The Commission, when preparing and Freedom, Security and Justice, annexed to the TEU and
drawing up delegated acts, should ensure a simultaneous, to the TFEU, those Member States have notified their
timely and appropriate transmission of relevant wish to take part in the adoption and application of
documents to the European Parliament and to the this Regulation.
Council.

(42) In accordance with Articles 1 and 2 of Protocol No 22
(36) In the application of this Regulation, including the prep on the position of Denmark, annexed to the TEU and to
aration of delegated acts, the Commission should consult the TFEU, Denmark is not taking part in the adoption of
experts from, among others, all relevant national auth this Regulation and is not bound by it or subject to its
orities. application,

(37) Detailed rules for the application of Regulation (EC) No HAVE ADOPTED THIS REGULATION:
343/2003 have been laid down by Regulation (EC) No
1560/2003. Certain provisions of Regulation (EC) No
1560/2003 should be incorporated into this Regulation,
either for reasons of clarity or because they can serve a CHAPTER I
general objective. In particular, it is important, both for
the Member States and the applicants concerned, that SUBJECT MATTER AND DEFINITIONS
there should be a general mechanism for finding a
Article 1
solution in cases where Member States differ over the
application of a provision of this Regulation. It is Subject matter
therefore justified to incorporate the mechanism
provided for in Regulation (EC) No 1560/2003 for the This Regulation lays down the criteria and mechanisms for
settling of disputes on the humanitarian clause into this determining the Member State responsible for examining an
Regulation and to extend its scope to the entirety of this application for international protection lodged in one of the
Regulation. Member States by a third-country national or a stateless
person (‘the Member State responsible’).

(38) The effective monitoring of the application of this Regu
lation requires that it be evaluated at regular intervals. Article 2
Definitions
For the purposes of this Regulation:
(39) This Regulation respects the fundamental rights and
observes the principles which are acknowledged, in
particular, in the Charter of Fundamental Rights of the
European Union. In particular, this Regulation seeks to (a) ‘third-country national’ means any person who is not a
ensure full observance of the right to asylum guaranteed citizen of the Union within the meaning of Article 20(1)
by Article 18 of the Charter as well as the rights TFEU and who is not national of a State which participates
recognised under Articles 1, 4, 7, 24 and 47 thereof. in this Regulation by virtue of an agreement with the
This Regulation should therefore be applied accordingly. European Union;

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(b) ‘application for international protection’ means an appli by the practice of the Member State where the bene
cation for international protection as defined in Article 2(h) ficiary is present;
of Directive 2011/95/EU;

(h) ‘relative’ means the applicant’s adult aunt or uncle or
(c) ‘applicant’ means a third-country national or a stateless grandparent who is present in the territory of a Member
person who has made an application for international State, regardless of whether the applicant was born in or
protection in respect of which a final decision has not out of wedlock or adopted as defined under national law;
yet been taken;

(d) ‘examination of an application for international protection’ (i) ‘minor’ means a third-country national or a stateless person
means any examination of, or decision or ruling below the age of 18 years;
concerning, an application for international protection by
the competent authorities in accordance with Directive
2013/32/EU and Directive 2011/95/EU, except for
procedures for determining the Member State responsible (j) ‘unaccompanied minor’ means a minor who arrives on the
in accordance with this Regulation; territory of the Member States unaccompanied by an adult
responsible for him or her, whether by law or by the
practice of the Member State concerned, and for as long
as he or she is not effectively taken into the care of such an
(e) ‘withdrawal of an application for international protection’ adult; it includes a minor who is left unaccompanied after
means the actions by which the applicant terminates the he or she has entered the territory of Member States;
procedures initiated by the submission of his or her appli
cation for international protection, in accordance with
Directive 2013/32/EU, either explicitly or tacitly;
(k) ‘representative’ means a person or an organisation
appointed by the competent bodies in order to assist and
(f) ‘beneficiary of international protection’ means a third- represent an unaccompanied minor in procedures provided
country national or a stateless person who has been for in this Regulation with a view to ensuring the best
granted international protection as defined in Article 2(a) interests of the child and exercising legal capacity for the
of Directive 2011/95/EU; minor where necessary. Where an organisation is appointed
as a representative, it shall designate a person responsible
for carrying out its duties in respect of the minor, in
accordance with this Regulation;
(g) ‘family members’ means, insofar as the family already
existed in the country of origin, the following members
of the applicant’s family who are present on the territory
of the Member States: (l) ‘residence document’ means any authorisation issued by the
authorities of a Member State authorising a third-country
national or a stateless person to stay on its territory,
— the spouse of the applicant or his or her unmarried including the documents substantiating the authorisation
partner in a stable relationship, where the law or to remain on the territory under temporary protection
practice of the Member State concerned treats arrangements or until the circumstances preventing a
unmarried couples in a way comparable to married removal order from being carried out no longer apply,
couples under its law relating to third-country with the exception of visas and residence authorisations
nationals, issued during the period required to determine the
Member State responsible as established in this Regulation
or during the examination of an application for inter
national protection or an application for a residence
— the minor children of couples referred to in the first permit;
indent or of the applicant, on condition that they are
unmarried and regardless of whether they were born in
or out of wedlock or adopted as defined under national
law, (m) ‘visa’ means the authorisation or decision of a Member
State required for transit or entry for an intended stay in
that Member State or in several Member States. The nature
— when the applicant is a minor and unmarried, the of the visa shall be determined in accordance with the
father, mother or another adult responsible for the following definitions:
applicant, whether by law or by the practice of the
Member State where the adult is present,
— ‘long-stay visa’ means an authorisation or decision
issued by one of the Member States in accordance
— when the beneficiary of international protection is a with its national law or Union law required for entry
minor and unmarried, the father, mother or another for an intended stay in that Member State of more than
adult responsible for him or her whether by law or three months,

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— ‘short-stay visa’ means an authorisation or decision of a Article 4
Member State with a view to transit through or an
intended stay on the territory of one or more or all Right to information
the Member States of a duration of no more than three 1. As soon as an application for international protection is
months in any six-month period beginning on the date lodged within the meaning of Article 20(2) in a Member State,
of first entry on the territory of the Member States, its competent authorities shall inform the applicant of the appli
cation of this Regulation, and in particular of:

— ‘airport transit visa’ means a visa valid for transit
through the international transit areas of one or more (a) the objectives of this Regulation and the consequences of
airports of the Member States; making another application in a different Member State as
well as the consequences of moving from one Member State
to another during the phases in which the Member State
(n) ‘risk of absconding’ means the existence of reasons in an responsible under this Regulation is being determined and
individual case, which are based on objective criteria the application for international protection is being
defined by law, to believe that an applicant or a third- examined;
country national or a stateless person who is subject to a
transfer procedure may abscond.
(b) the criteria for determining the Member State responsible,
the hierarchy of such criteria in the different steps of the
CHAPTER II procedure and their duration, including the fact that an
application for international protection lodged in one
GENERAL PRINCIPLES AND SAFEGUARDS Member State can result in that Member State becoming
Article 3 responsible under this Regulation even if such responsibility
is not based on those criteria;
Access to the procedure for examining an application for
international protection
1. Member States shall examine any application for inter (c) the personal interview pursuant to Article 5 and the possi
national protection by a third-country national or a stateless bility of submitting information regarding the presence of
person who applies on the territory of any one of them, family members, relatives or any other family relations in
including at the border or in the transit zones. The application the Member States, including the means by which the
shall be examined by a single Member State, which shall be the applicant can submit such information;
one which the criteria set out in Chapter III indicate is respon
sible.
(d) the possibility to challenge a transfer decision and, where
applicable, to apply for a suspension of the transfer;
2. Where no Member State responsible can be designated on
the basis of the criteria listed in this Regulation, the first
Member State in which the application for international (e) the fact that the competent authorities of Member States
protection was lodged shall be responsible for examining it. can exchange data on him or her for the sole purpose of
implementing their obligations arising under this Regu
lation;
Where it is impossible to transfer an applicant to the Member
State primarily designated as responsible because there are
substantial grounds for believing that there are systemic flaws (f) the right of access to data relating to him or her and the
in the asylum procedure and in the reception conditions for right to request that such data be corrected if inaccurate or
applicants in that Member State, resulting in a risk of inhuman be deleted if unlawfully processed, as well as the procedures
or degrading treatment within the meaning of Article 4 of the for exercising those rights, including the contact details of
Charter of Fundamental Rights of the European Union, the the authorities referred to in Article 35 and of the national
determining Member State shall continue to examine the data protection authorities responsible for hearing claims
criteria set out in Chapter III in order to establish whether concerning the protection of personal data.
another Member State can be designated as responsible.

2. The information referred to in paragraph 1 shall be
Where the transfer cannot be made pursuant to this paragraph provided in writing in a language that the applicant understands
to any Member State designated on the basis of the criteria set or is reasonably supposed to understand. Member States shall
out in Chapter III or to the first Member State with which the use the common leaflet drawn up pursuant to paragraph 3 for
application was lodged, the determining Member State shall that purpose.
become the Member State responsible.

Where necessary for the proper understanding of the applicant,
3. Any Member State shall retain the right to send an the information shall also be supplied orally, for example in
applicant to a safe third country, subject to the rules and safe connection with the personal interview as referred to in
guards laid down in Directive 2013/32/EU. Article 5.

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3. The Commission shall, by means of implementing acts, main information supplied by the applicant at the interview.
draw up a common leaflet, as well as a specific leaflet for This summary may either take the form of a report or a
unaccompanied minors, containing at least the information standard form. The Member State shall ensure that the
referred to in paragraph 1 of this Article. This common applicant and/or the legal advisor or other counsellor who is
leaflet shall also include information regarding the application representing the applicant have timely access to the summary.
of Regulation (EU) No 603/2013 and, in particular, the purpose
for which the data of an applicant may be processed within
Eurodac. The common leaflet shall be established in such a Article 6
manner as to enable Member States to complete it with
additional Member State-specific information. Those imple Guarantees for minors
menting acts shall be adopted in accordance with the exam 1. The best interests of the child shall be a primary
ination procedure referred to in Article 44(2) of this Regulation. consideration for Member States with respect to all procedures
provided for in this Regulation.

Article 5
2. Member States shall ensure that a representative represents
Personal interview and/or assists an unaccompanied minor with respect to all
1. In order to facilitate the process of determining the procedures provided for in this Regulation. The representative
Member State responsible, the determining Member State shall shall have the qualifications and expertise to ensure that the best
conduct a personal interview with the applicant. The interview interests of the minor are taken into consideration during the
shall also allow the proper understanding of the information procedures carried out under this Regulation. Such represen
supplied to the applicant in accordance with Article 4. tative shall have access to the content of the relevant
documents in the applicant’s file including the specific leaflet
for unaccompanied minors.
2. The personal interview may be omitted if:
This paragraph shall be without prejudice to the relevant
provisions in Article 25 of Directive 2013/32/EU.
(a) the applicant has absconded; or

3. In assessing the best interests of the child, Member States
shall closely cooperate with each other and shall, in particular,
(b) after having received the information referred to in Article 4,
take due account of the following factors:
the applicant has already provided the information relevant
to determine the Member State responsible by other means.
The Member State omitting the interview shall give the
(a) family reunification possibilities;
applicant the opportunity to present all further information
which is relevant to correctly determine the Member State
responsible before a decision is taken to transfer the
(b) the minor’s well-being and social development;
applicant to the Member State responsible pursuant to
Article 26(1).
(c) safety and security considerations, in particular where there
is a risk of the minor being a victim of human trafficking;
3. The personal interview shall take place in a timely manner
and, in any event, before any decision is taken to transfer the
applicant to the Member State responsible pursuant to (d) the views of the minor, in accordance with his or her age
Article 26(1). and maturity.

4. The personal interview shall be conducted in a language 4. For the purpose of applying Article 8, the Member State
that the applicant understands or is reasonably supposed to where the unaccompanied minor lodged an application for
understand and in which he or she is able to communicate. international protection shall, as soon as possible, take appro
Where necessary, Member States shall have recourse to an inter priate action to identify the family members, siblings or relatives
preter who is able to ensure appropriate communication of the unaccompanied minor on the territory of Member States,
between the applicant and the person conducting the personal whilst protecting the best interests of the child.
interview.

To that end, that Member State may call for the assistance of
international or other relevant organisations, and may facilitate
5. The personal interview shall take place under conditions the minor’s access to the tracing services of such organisations.
which ensure appropriate confidentiality. It shall be conducted
by a qualified person under national law.
The staff of the competent authorities referred to in Article 35
who deal with requests concerning unaccompanied minors shall
6. The Member State conducting the personal interview shall have received, and shall continue to receive, appropriate training
make a written summary thereof which shall contain at least the concerning the specific needs of minors.

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5. With a view to facilitating the appropriate action to the relative can take care of him or her, that Member State shall
identify the family members, siblings or relatives of the unite the minor with his or her relative and shall be the
unaccompanied minor living in the territory of another Member State responsible, provided that it is in the best
Member State pursuant to paragraph 4 of this Article, the interests of the minor.
Commission shall adopt implementing acts including a
standard form for the exchange of relevant information
between Member States. Those implementing acts shall be
adopted in accordance with the examination procedure 3. Where family members, siblings or relatives as referred to
referred to in Article 44(2). in paragraphs 1 and 2, stay in more than one Member State, the
Member State responsible shall be decided on the basis of what
is in the best interests of the unaccompanied minor.

CHAPTER III

CRITERIA FOR DETERMINING THE MEMBER STATE 4. In the absence of a family member, a sibling or a relative
RESPONSIBLE as referred to in paragraphs 1 and 2, the Member State
responsible shall be that where the unaccompanied minor has
Article 7 lodged his or her application for international protection,
Hierarchy of criteria provided that it is in the best interests of the minor.

1. The criteria for determining the Member State responsible
shall be applied in the order in which they are set out in this
Chapter. 5. The Commission shall be empowered to adopt delegated
acts in accordance with Article 45 concerning the identification
of family members, siblings or relatives of the unaccompanied
minor; the criteria for establishing the existence of proven
2. The Member State responsible in accordance with the family links; the criteria for assessing the capacity of a relative
criteria set out in this Chapter shall be determined on the to take care of the unaccompanied minor, including where
basis of the situation obtaining when the applicant first family members, siblings or relatives of the unaccompanied
lodged his or her application for international protection with minor stay in more than one Member State. In exercising its
a Member State. powers to adopt delegated acts, the Commission shall not
exceed the scope of the best interests of the child as provided
for under Article 6(3).

3. In view of the application of the criteria referred to in
Articles 8, 10 and 16, Member States shall take into 6. The Commission shall, by means of implementing acts,
consideration any available evidence regarding the presence, establish uniform conditions for the consultation and the
on the territory of a Member State, of family members, exchange of information between Member States. Those imple
relatives or any other family relations of the applicant, on menting acts shall be adopted in accordance with the exam
condition that such evidence is produced before another ination procedure referred to in Article 44(2).
Member State accepts the request to take charge or take back
the person concerned, pursuant to Articles 22 and 25 respect
ively, and that the previous applications for international
protection of the applicant have not yet been the subject of a Article 9
first decision regarding the substance.
Family members who are beneficiaries of international
protection
Where the applicant has a family member, regardless of whether
Article 8 the family was previously formed in the country of origin, who
Minors has been allowed to reside as a beneficiary of international
protection in a Member State, that Member State shall be
1. Where the applicant is an unaccompanied minor, the responsible for examining the application for international
Member State responsible shall be that where a family protection, provided that the persons concerned expressed
member or a sibling of the unaccompanied minor is legally their desire in writing.
present, provided that it is in the best interests of the minor.
Where the applicant is a married minor whose spouse is not
legally present on the territory of the Member States, the
Member State responsible shall be the Member State where Article 10
the father, mother or other adult responsible for the minor, Family members who are applicants for international
whether by law or by the practice of that Member State, or protection
sibling is legally present.
If the applicant has a family member in a Member State whose
application for international protection in that Member State
has not yet been the subject of a first decision regarding the
2. Where the applicant is an unaccompanied minor who has substance, that Member State shall be responsible for examining
a relative who is legally present in another Member State and the application for international protection, provided that the
where it is established, based on an individual examination, that persons concerned expressed their desire in writing.

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Article 11 (c) where visas are of different kinds, the Member State which
issued the visa having the longest period of validity or,
Family procedure where the periods of validity are identical, the Member
Where several family members and/or minor unmarried siblings State which issued the visa having the latest expiry date.
submit applications for international protection in the same
Member State simultaneously, or on dates close enough for
the procedures for determining the Member State responsible 4. Where the applicant is in possession only of one or more
to be conducted together, and where the application of the residence documents which have expired less than two years
criteria set out in this Regulation would lead to their being previously or one or more visas which have expired less than
separated, the Member State responsible shall be determined six months previously and which enabled him or her actually to
on the basis of the following provisions: enter the territory of a Member State, paragraphs 1, 2 and 3
shall apply for such time as the applicant has not left the terri
tories of the Member States.
(a) responsibility for examining the applications for inter
national protection of all the family members and/or
minor unmarried siblings shall lie with the Member State Where the applicant is in possession of one or more residence
which the criteria indicate is responsible for taking charge of documents which have expired more than two years previously
the largest number of them; or one or more visas which have expired more than six months
previously and enabled him or her actually to enter the territory
of a Member State and where he has not left the territories of
the Member States, the Member State in which the application
(b) failing this, responsibility shall lie with the Member State for international protection is lodged shall be responsible.
which the criteria indicate is responsible for examining the
application of the oldest of them.
5. The fact that the residence document or visa was issued
on the basis of a false or assumed identity or on submission of
Article 12 forged, counterfeit or invalid documents shall not prevent
responsibility being allocated to the Member State which
Issue of residence documents or visas
issued it. However, the Member State issuing the residence
1. Where the applicant is in possession of a valid residence document or visa shall not be responsible if it can establish
document, the Member State which issued the document shall that a fraud was committed after the document or visa had
be responsible for examining the application for international been issued.
protection.

Article 13
2. Where the applicant is in possession of a valid visa, the Entry and/or stay
Member State which issued the visa shall be responsible for
examining the application for international protection, unless 1. Where it is established, on the basis of proof or circum
the visa was issued on behalf of another Member State under stantial evidence as described in the two lists mentioned in
a representation arrangement as provided for in Article 8 of Article 22(3) of this Regulation, including the data referred to
Regulation (EC) No 810/2009 of the European Parliament and in Regulation (EU) No 603/2013, that an applicant has
of the Council, of 13 July 2009, establishing a Community irregularly crossed the border into a Member State by land,
Code on Visas (1). In such a case, the represented Member sea or air having come from a third country, the Member
State shall be responsible for examining the application for State thus entered shall be responsible for examining the appli
international protection. cation for international protection. That responsibility shall
cease 12 months after the date on which the irregular border
crossing took place.
3. Where the applicant is in possession of more than one
valid residence document or visa issued by different Member
States, the responsibility for examining the application for inter 2. When a Member State cannot or can no longer be held
national protection shall be assumed by the Member States in responsible in accordance with paragraph 1 of this Article and
the following order: where it is established, on the basis of proof or circumstantial
evidence as described in the two lists mentioned in Article 22(3),
that the applicant — who has entered the territories of the
Member States irregularly or whose circumstances of entry
(a) the Member State which issued the residence document cannot be established — has been living for a continuous
conferring the right to the longest period of residency or, period of at least five months in a Member State before
where the periods of validity are identical, the Member State lodging the application for international protection, that
which issued the residence document having the latest Member State shall be responsible for examining the application
expiry date; for international protection.

(b) the Member State which issued the visa having the latest If the applicant has been living for periods of time of at least
expiry date where the various visas are of the same type; five months in several Member States, the Member State where
he or she has been living most recently shall be responsible for
(1) OJ L 243, 15.9.2009, p. 1. examining the application for international protection.

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Article 14 3. The Commission shall be empowered to adopt delegated
acts in accordance with Article 45 concerning the elements to
Visa waived entry be taken into account in order to assess the dependency link,
1. If a third-country national or a stateless person enters into the criteria for establishing the existence of proven family links,
the territory of a Member State in which the need for him or the criteria for assessing the capacity of the person concerned to
her to have a visa is waived, that Member State shall be take care of the dependent person and the elements to be taken
responsible for examining his or her application for inter into account in order to assess the inability to travel for a
national protection. significant period of time.

2. The principle set out in paragraph 1 shall not apply if the 4. The Commission shall, by means of implementing acts,
third-country national or the stateless person lodges his or her establish uniform conditions for the consultation and exchange
application for international protection in another Member State of information between Member States. Those implementing
in which the need for him or her to have a visa for entry into acts shall be adopted in accordance with the examination
the territory is also waived. In that case, that other Member procedure referred to in Article 44(2).
State shall be responsible for examining the application for
international protection.

Article 17

Article 15 Discretionary clauses

Application in an international transit area of an airport 1. By way of derogation from Article 3(1), each Member
State may decide to examine an application for international
Where the application for international protection is made in protection lodged with it by a third-country national or a
the international transit area of an airport of a Member State by stateless person, even if such examination is not its responsi
a third-country national or a stateless person, that Member State bility under the criteria laid down in this Regulation.
shall be responsible for examining the application.

The Member State which decides to examine an application for
CHAPTER IV international protection pursuant to this paragraph shall
DEPENDENT PERSONS AND DISCRETIONARY CLAUSES become the Member State responsible and shall assume the
obligations associated with that responsibility. Where applicable,
Article 16 it shall inform, using the ‘DubliNet’ electronic communication
network set up under Article 18 of Regulation (EC) No
Dependent persons 1560/2003, the Member State previously responsible, the
1. Where, on account of pregnancy, a new-born child, Member State conducting a procedure for determining the
serious illness, severe disability or old age, an applicant is Member State responsible or the Member State which has
dependent on the assistance of his or her child, sibling or been requested to take charge of, or to take back, the applicant.
parent legally resident in one of the Member States, or his or
her child, sibling or parent legally resident in one of the
Member States is dependent on the assistance of the applicant,
Member States shall normally keep or bring together the
applicant with that child, sibling or parent, provided that The Member State which becomes responsible pursuant to this
family ties existed in the country of origin, that the child, paragraph shall forthwith indicate it in Eurodac in accordance
sibling or parent or the applicant is able to take care of the with Regulation (EU) No 603/2013 by adding the date when
dependent person and that the persons concerned expressed the decision to examine the application was taken.
their desire in writing.

2. The Member State in which an application for inter
2. Where the child, sibling or parent referred to in paragraph national protection is made and which is carrying out the
1 is legally resident in a Member State other than the one where process of determining the Member State responsible, or the
the applicant is present, the Member State responsible shall be Member State responsible, may, at any time before a first
the one where the child, sibling or parent is legally resident decision regarding the substance is taken, request another
unless the applicant’s health prevents him or her from travelling Member State to take charge of an applicant in order to
to that Member State for a significant period of time. In such a bring together any family relations, on humanitarian grounds
case, the Member State responsible shall be the one where the based in particular on family or cultural considerations, even
applicant is present. Such Member State shall not be subject to where that other Member State is not responsible under the
the obligation to bring the child, sibling or parent of the criteria laid down in Articles 8 to 11 and 16. The persons
applicant to its territory. concerned must express their consent in writing.

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The request to take charge shall contain all the material in the completed or to lodge a new application for international
possession of the requesting Member State to allow the protection, which shall not be treated as a subsequent appli
requested Member State to assess the situation. cation as provided for in Directive 2013/32/EU. In such cases,
Member States shall ensure that the examination of the appli
cation is completed.
The requested Member State shall carry out any necessary
checks to examine the humanitarian grounds cited, and shall
reply to the requesting Member State within two months of
In the cases falling within the scope of paragraph 1(d), where
receipt of the request using the ‘DubliNet’ electronic communi
the application has been rejected at first instance only, the
cation network set up under Article 18 of Regulation (EC) No
Member State responsible shall ensure that the person
1560/2003. A reply refusing the request shall state the reasons
concerned has or has had the opportunity to seek an effective
on which the refusal is based.
remedy pursuant to Article 46 of Directive 2013/32/EU.

Where the requested Member State accepts the request, respon
sibility for examining the application shall be transferred to it. Article 19
Cessation of responsibilities
CHAPTER V 1. Where a Member State issues a residence document to the
OBLIGATIONS OF THE MEMBER STATE RESPONSIBLE applicant, the obligations specified in Article 18(1) shall be
transferred to that Member State.
Article 18
Obligations of the Member State responsible
2. The obligations specified in Article 18(1) shall cease where
1. The Member State responsible under this Regulation shall the Member State responsible can establish, when requested to
be obliged to: take charge or take back an applicant or another person as
referred to in Article 18(1)(c) or (d), that the person
concerned has left the territory of the Member States for at
(a) take charge, under the conditions laid down in Articles 21, least three months, unless the person concerned is in possession
22 and 29, of an applicant who has lodged an application of a valid residence document issued by the Member State
in a different Member State; responsible.

(b) take back, under the conditions laid down in Articles 23,
24, 25 and 29, an applicant whose application is under An application lodged after the period of absence referred to in
examination and who made an application in another the first subparagraph shall be regarded as a new application
Member State or who is on the territory of another giving rise to a new procedure for determining the Member
Member State without a residence document; State responsible.

(c) take back, under the conditions laid down in Articles 23, 3. The obligations specified in Article 18(1)(c) and (d) shall
24, 25 and 29, a third-country national or a stateless person cease where the Member State responsible can establish, when
who has withdrawn the application under examination and requested to take back an applicant or another person as
made an application in another Member State or who is on referred to in Article 18(1)(c) or (d), that the person
the territory of another Member State without a residence concerned has left the territory of the Member States in
document; compliance with a return decision or removal order issued
following the withdrawal or rejection of the application.
(d) take back, under the conditions laid down in Articles 23,
24, 25 and 29, a third-country national or a stateless person
whose application has been rejected and who made an An application lodged after an effective removal has taken place
application in another Member State or who is on the shall be regarded as a new application giving rise to a new
territory of another Member State without a residence procedure for determining the Member State responsible.
document.

CHAPTER VI
2. In the cases falling within the scope of paragraph 1(a) and
(b), the Member State responsible shall examine or complete the PROCEDURES FOR TAKING CHARGE AND TAKING BACK
examination of the application for international protection SECTION I
made by the applicant.
Start of the procedure

In the cases falling within the scope of paragraph 1(c), when the Article 20
Member State responsible had discontinued the examination of Start of the procedure
an application following its withdrawal by the applicant before
a decision on the substance has been taken at first instance, that 1. The process of determining the Member State responsible
Member State shall ensure that the applicant is entitled to shall start as soon as an application for international protection
request that the examination of his or her application be is first lodged with a Member State.

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2. An application for international protection shall be SECTION II
deemed to have been lodged once a form submitted by the
applicant or a report prepared by the authorities has reached Procedures for take charge requests
the competent authorities of the Member State concerned. Article 21
Where an application is not made in writing, the time
elapsing between the statement of intention and the preparation Submitting a take charge request
of a report should be as short as possible. 1. Where a Member State with which an application for
international protection has been lodged considers that
another Member State is responsible for examining the appli
3. For the purposes of this Regulation, the situation of a cation, it may, as quickly as possible and in any event within
minor who is accompanying the applicant and meets the defi three months of the date on which the application was lodged
nition of family member shall be indissociable from that of his within the meaning of Article 20(2), request that other Member
or her family member and shall be a matter for the Member State to take charge of the applicant.
State responsible for examining the application for international
protection of that family member, even if the minor is not Notwithstanding the first subparagraph, in the case of a Eurodac
individually an applicant, provided that it is in the minor’s hit with data recorded pursuant to Article 14 of Regulation (EU)
best interests. The same treatment shall be applied to children No 603/2013, the request shall be sent within two months of
born after the applicant arrives on the territory of the Member receiving that hit pursuant to Article 15(2) of that Regulation.
States, without the need to initiate a new procedure for taking
charge of them.
Where the request to take charge of an applicant is not made
within the periods laid down in the first and second subpara
graphs, responsibility for examining the application for inter
4. Where an application for international protection is
national protection shall lie with the Member State in which the
lodged with the competent authorities of a Member State by
application was lodged.
an applicant who is on the territory of another Member State,
the determination of the Member State responsible shall be
made by the Member State in whose territory the applicant is 2. The requesting Member State may ask for an urgent reply
present. The latter Member State shall be informed without in cases where the application for international protection was
delay by the Member State which received the application and lodged after leave to enter or remain was refused, after an arrest
shall then, for the purposes of this Regulation, be regarded as for an unlawful stay or after the service or execution of a
the Member State with which the application for international removal order.
protection was lodged.
The request shall state the reasons warranting an urgent reply
and the period within which a reply is expected. That period
The applicant shall be informed in writing of this change in the shall be at least one week.
determining Member State and of the date on which it took
place.
3. In the cases referred to in paragraphs 1 and 2, the request
that charge be taken by another Member State shall be made
using a standard form and including proof or circumstantial
5. An applicant who is present in another Member State evidence as described in the two lists mentioned in Article 22(3)
without a residence document or who there lodges an appli and/or relevant elements from the applicant’s statement,
cation for international protection after withdrawing his or her enabling the authorities of the requested Member State to
first application made in a different Member State during the check whether it is responsible on the basis of the criteria
process of determining the Member State responsible shall be laid down in this Regulation.
taken back, under the conditions laid down in Articles 23, 24,
25 and 29, by the Member State with which that application for
international protection was first lodged, with a view to The Commission shall, by means of implementing acts, adopt
completing the process of determining the Member State uniform conditions on the preparation and submission of take
responsible. charge requests. Those implementing acts shall be adopted in
accordance with the examination procedure referred to in
Article 44(2).

That obligation shall cease where the Member State requested to
complete the process of determining the Member State Article 22
responsible can establish that the applicant has in the Replying to a take charge request
meantime left the territory of the Member States for a period
of at least three months or has obtained a residence document 1. The requested Member State shall make the necessary
from another Member State. checks, and shall give a decision on the request to take
charge of an applicant within two months of receipt of the
request.
An application lodged after the period of absence referred to in
the second subparagraph shall be regarded as a new application 2. In the procedure for determining the Member State
giving rise to a new procedure for determining the Member responsible elements of proof and circumstantial evidence
State responsible. shall be used.

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3. The Commission shall, by means of implementing acts, international protection considers that another Member State is
establish, and review periodically, two lists, indicating the responsible in accordance with Article 20(5) and Article 18(1)(b),
relevant elements of proof and circumstantial evidence in (c) or (d), it may request that other Member State to take back
accordance with the criteria set out in points (a) and (b) of that person.
this paragraph. Those implementing acts shall be adopted in
accordance with the examination procedure referred to in
Article 44(2).
2. A take back request shall be made as quickly as possible
(a) Proof: and in any event within two months of receiving the Eurodac
hit, pursuant to Article 9(5) of Regulation (EU) No 603/2013.
(i) this refers to formal proof which determines responsi
bility pursuant to this Regulation, as long as it is not
refuted by proof to the contrary;
If the take back request is based on evidence other than data
(ii) the Member States shall provide the Committee obtained from the Eurodac system, it shall be sent to the
provided for in Article 44 with models of the requested Member State within three months of the date on
different types of administrative documents, in which the application for international protection was lodged
accordance with the typology established in the list of within the meaning of Article 20(2).
formal proofs;

(b) Circumstantial evidence:
3. Where the take back request is not made within the
(i) this refers to indicative elements which while being periods laid down in paragraph 2, responsibility for
refutable may be sufficient, in certain cases, according examining the application for international protection shall lie
to the evidentiary value attributed to them; with the Member State in which the new application was
lodged.
(ii) their evidentiary value, in relation to the responsibility
for examining the application for international
protection shall be assessed on a case-by-case basis.
4. A take back request shall be made using a standard form
4. The requirement of proof should not exceed what is and shall include proof or circumstantial evidence as described
necessary for the proper application of this Regulation. in the two lists mentioned in Article 22(3) and/or relevant
elements from the statements of the person concerned,
5. If there is no formal proof, the requested Member State enabling the authorities of the requested Member State to
shall acknowledge its responsibility if the circumstantial check whether it is responsible on the basis of the criteria
evidence is coherent, verifiable and sufficiently detailed to laid down in this Regulation.
establish responsibility.

6. Where the requesting Member State has pleaded urgency
in accordance with the provisions of Article 21(2), the requested The Commission shall, by means of implementing acts, adopt
Member State shall make every effort to comply with the time uniform conditions for the preparation and submission of take
limit requested. In exceptional cases, where it can be demon back requests. Those implementing acts shall be adopted in
strated that the examination of a request for taking charge of an accordance with the examination procedure referred to in
applicant is particularly complex, the requested Member State Article 44(2).
may give its reply after the time limit requested, but in any
event within one month. In such situations the requested
Member State must communicate its decision to postpone a
reply to the requesting Member State within the time limit Article 24
originally requested.
Submitting a take back request when no new application
7. Failure to act within the two-month period mentioned in has been lodged in the requesting Member State
paragraph 1 and the one-month period mentioned in paragraph 1. Where a Member State on whose territory a person as
6 shall be tantamount to accepting the request, and entail the referred to in Article 18(1)(b), (c) or (d) is staying without a
obligation to take charge of the person, including the obligation residence document and with which no new application for
to provide for proper arrangements for arrival. international protection has been lodged considers that
another Member State is responsible in accordance with
SECTION III Article 20(5) and Article 18(1)(b), (c) or (d), it may request
Procedures for take back requests that other Member State to take back that person.

Article 23
Submitting a take back request when a new application has
been lodged in the requesting Member State 2. By way of derogation from Article 6(2) of Directive
2008/115/EC of the European Parliament and of the Council
1. Where a Member State with which a person as referred to of 16 December 2008 on common standards and procedures in
in Article 18(1)(b), (c) or (d) has lodged a new application for Member States for returning illegally staying third-country

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nationals (1), where a Member State on whose territory a person received. When the request is based on data obtained from the
is staying without a residence document decides to search the Eurodac system, that time limit shall be reduced to two weeks.
Eurodac system in accordance with Article 17 of Regulation
(EU) No 603/2013, the request to take back a person as
referred to in Article 18(1)(b) or (c) of this Regulation, or a 2. Failure to act within the one month period or the two
person as referred to in its Article 18(1)(d) whose application weeks period mentioned in paragraph 1 shall be tantamount to
for international protection has not been rejected by a final accepting the request, and shall entail the obligation to take
decision, shall be made as quickly as possible and in any back the person concerned, including the obligation to
event within two months of receipt of the Eurodac hit, provide for proper arrangements for arrival.
pursuant to Article 17(5) of Regulation (EU) No 603/2013.
SECTION IV
If the take back request is based on evidence other than data
obtained from the Eurodac system, it shall be sent to the Procedural safeguards
requested Member State within three months of the date on Article 26
which the requesting Member State becomes aware that
another Member State may be responsible for the person Notification of a transfer decision
concerned.
1. Where the requested Member State accepts to take charge
of or to take back an applicant or other person as referred to in
3. Where the take back request is not made within the Article 18(1)(c) or (d), the requesting Member State shall notify
periods laid down in paragraph 2, the Member State on the person concerned of the decision to transfer him or her to
whose territory the person concerned is staying without a the Member State responsible and, where applicable, of not
residence document shall give that person the opportunity to examining his or her application for international protection.
lodge a new application. If a legal advisor or other counsellor is representing the person
concerned, Member States may choose to notify the decision to
4. Where a person as referred to in Article 18(1)(d) of this such legal advisor or counsellor instead of to the person
Regulation whose application for international protection has concerned and, where applicable, communicate the decision
been rejected by a final decision in one Member State is on to the person concerned.
the territory of another Member State without a residence
document, the latter Member State may either request the
former Member State to take back the person concerned or 2. The decision referred to in paragraph 1 shall contain
carry out a return procedure in accordance with Directive information on the legal remedies available, including on the
2008/115/EC. right to apply for suspensive effect, where applicable, and on
the time limits applicable for seeking such remedies and for
carrying out the transfer, and shall, if necessary, contain
When the latter Member State decides to request the former information on the place where, and the date on which, the
Member State to take back the person concerned, the rules laid person concerned should appear, if that person is travelling to
down in Directive 2008/115/EC shall not apply. the Member State responsible by his or her own means.

5. The request for the person referred to in Article 18(1)(b),
(c) or (d) to be taken back shall be made using a standard form Member States shall ensure that information on persons or
and shall include proof or circumstantial evidence as described entities that may provide legal assistance to the person
in the two lists mentioned in Article 22(3) and/or relevant concerned is communicated to the person concerned together
elements from the person’s statements, enabling the authorities with the decision referred to in paragraph 1, when that
of the requested Member State to check whether it is information has not been already communicated.
responsible on the basis of the criteria laid down in this Regu
lation. 3. When the person concerned is not assisted or represented
by a legal advisor or other counsellor, Member States shall
The Commission shall, by means of implementing acts, inform him or her of the main elements of the decision,
establish and review periodically two lists indicating the which shall always include information on the legal remedies
relevant elements of proof and circumstantial evidence in available and the time limits applicable for seeking such
accordance with the criteria set out in Article 22(3)(a) and (b), remedies, in a language that the person concerned understands
and shall adopt uniform conditions for the preparation and or is reasonably supposed to understand.
submission of take back requests. Those implementing acts
shall be adopted in accordance with the examination
procedure referred to in Article 44(2). Article 27
Remedies
Article 25
1. The applicant or another person as referred to in
Replying to a take back request Article 18(1)(c) or (d) shall have the right to an effective
remedy, in the form of an appeal or a review, in fact and in
1. The requested Member State shall make the necessary
law, against a transfer decision, before a court or tribunal.
checks and shall give a decision on the request to take back
the person concerned as quickly as possible and in any event no
later than one month from the date on which the request was 2. Member States shall provide for a reasonable period of
time within which the person concerned may exercise his or
(1) OJ L 348, 24.12.2008, p. 98. her right to an effective remedy pursuant to paragraph 1.

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3. For the purposes of appeals against, or reviews of, transfer representation is not arbitrarily restricted and that the appli
decisions, Member States shall provide in their national law that: cant’s effective access to justice is not hindered.

(a) the appeal or review confers upon the person concerned the
right to remain in the Member State concerned pending the Legal assistance shall include at least the preparation of the
outcome of the appeal or review; or required procedural documents and representation before a
court or tribunal and may be restricted to legal advisors or
counsellors specifically designated by national law to provide
(b) the transfer is automatically suspended and such suspension assistance and representation.
lapses after a certain reasonable period of time, during
which a court or a tribunal, after a close and rigorous
scrutiny, shall have taken a decision whether to grant
suspensive effect to an appeal or review; or Procedures for access to legal assistance shall be laid down in
national law.

(c) the person concerned has the opportunity to request within
a reasonable period of time a court or tribunal to suspend
SECTION V
the implementation of the transfer decision pending the
outcome of his or her appeal or review. Member States Detention for the purpose of transfer
shall ensure that an effective remedy is in place by
suspending the transfer until the decision on the first Article 28
suspension request is taken. Any decision on whether to Detention
suspend the implementation of the transfer decision shall
be taken within a reasonable period of time, while 1. Member States shall not hold a person in detention for
permitting a close and rigorous scrutiny of the suspension the sole reason that he or she is subject to the procedure
request. A decision not to suspend the implementation of established by this Regulation.
the transfer decision shall state the reasons on which it is
based.
2. When there is a significant risk of absconding, Member
4. Member States may provide that the competent authorities States may detain the person concerned in order to secure
may decide, acting ex officio, to suspend the implementation of transfer procedures in accordance with this Regulation, on the
the transfer decision pending the outcome of the appeal or basis of an individual assessment and only in so far as detention
review. is proportional and other less coercive alternative measures
cannot be applied effectively.

5. Member States shall ensure that the person concerned has
access to legal assistance and, where necessary, to linguistic
3. Detention shall be for as short a period as possible and
assistance.
shall be for no longer than the time reasonably necessary to
fulfil the required administrative procedures with due diligence
until the transfer under this Regulation is carried out.
6. Member States shall ensure that legal assistance is granted
on request free of charge where the person concerned cannot
afford the costs involved. Member States may provide that, as
regards fees and other costs, the treatment of applicants shall Where a person is detained pursuant to this Article, the period
not be more favourable than the treatment generally accorded for submitting a take charge or take back request shall not
to their nationals in matters pertaining to legal assistance. exceed one month from the lodging of the application. The
Member State carrying out the procedure in accordance with
this Regulation shall ask for an urgent reply in such cases. Such
Without arbitrarily restricting access to legal assistance, Member reply shall be given within two weeks of receipt of the request.
States may provide that free legal assistance and representation Failure to reply within the two-week period shall be tantamount
not be granted where the appeal or review is considered by the to accepting the request and shall entail the obligation to take
competent authority or a court or tribunal to have no tangible charge or take back the person, including the obligation to
prospect of success. provide for proper arrangements for arrival.

Where a decision not to grant free legal assistance and repre
sentation pursuant to this paragraph is taken by an authority Where a person is detained pursuant to this Article, the transfer
other than a court or tribunal, Member States shall provide the of that person from the requesting Member State to the
right to an effective remedy before a court or tribunal to Member State responsible shall be carried out as soon as prac
challenge that decision. tically possible, and at the latest within six weeks of the implicit
or explicit acceptance of the request by another Member State
to take charge or to take back the person concerned or of the
In complying with the requirements set out in this paragraph, moment when the appeal or review no longer has a suspensive
Member States shall ensure that legal assistance and effect in accordance with Article 27(3).

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When the requesting Member State fails to comply with the 3. If a person has been transferred erroneously or a decision
deadlines for submitting a take charge or take back request or to transfer is overturned on appeal or review after the transfer
where the transfer does not take place within the period of six has been carried out, the Member State which carried out the
weeks referred to in the third subparagraph, the person shall no transfer shall promptly accept that person back.
longer be detained. Articles 21, 23, 24 and 29 shall continue to
apply accordingly.

4. The Commission shall, by means of implementing acts,
4. As regards the detention conditions and the guarantees establish uniform conditions for the consultation and exchange
applicable to persons detained, in order to secure the transfer of information between Member States, in particular in the
procedures to the Member State responsible, Articles 9, 10 and event of postponed or delayed transfers, transfers following
11 of Directive 2013/33/EU shall apply. acceptance by default, transfers of minors or dependent
persons, and supervised transfers. Those implementing acts
shall be adopted in accordance with the examination
procedure referred to in Article 44(2).
SECTION VI

Transfers
Article 29 Article 30
Modalities and time limits Costs of transfer
1. The transfer of the applicant or of another person as 1. The costs necessary to transfer an applicant or another
referred to in Article 18(1)(c) or (d) from the requesting person as referred to in Article 18(1)(c) or (d) to the Member
Member State to the Member State responsible shall be State responsible shall be met by the transferring Member State.
carried out in accordance with the national law of the
requesting Member State, after consultation between the
Member States concerned, as soon as practically possible, and
at the latest within six months of acceptance of the request by
another Member State to take charge or to take back the person 2. Where the person concerned has to be transferred back to
concerned or of the final decision on an appeal or review where a Member State as a result of an erroneous transfer or of a
there is a suspensive effect in accordance with Article 27(3). transfer decision that has been overturned on appeal or review
after the transfer has been carried out, the Member State which
initially carried out the transfer shall be responsible for the costs
of transferring the person concerned back to its territory.
If transfers to the Member State responsible are carried out by
supervised departure or under escort, Member States shall
ensure that they are carried out in a humane manner and
with full respect for fundamental rights and human dignity.
3. Persons to be transferred pursuant to this Regulation shall
not be required to meet the costs of such transfers.

If necessary, the applicant shall be supplied by the requesting
Member State with a laissez passer. The Commission shall, by
means of implementing acts, establish the design of the laissez
passer. Those implementing acts shall be adopted in accordance Article 31
with the examination procedure referred to in Article 44(2). Exchange of relevant information before a transfer is
carried out
1. The Member State carrying out the transfer of an
The Member State responsible shall inform the requesting applicant or of another person as referred to in Article 18(1)(c)
Member State, as appropriate, of the safe arrival of the person or (d) shall communicate to the Member State responsible such
concerned or of the fact that he or she did not appear within personal data concerning the person to be transferred as is
the set time limit. appropriate, relevant and non-excessive for the sole purposes
of ensuring that the competent authorities, in accordance with
national law in the Member State responsible, are in a position
to provide that person with adequate assistance, including the
2. Where the transfer does not take place within the six provision of immediate health care required in order to protect
months’ time limit, the Member State responsible shall be his or her vital interests, and to ensure continuity in the
relieved of its obligations to take charge or to take back the protection and rights afforded by this Regulation and by
person concerned and responsibility shall then be transferred to other relevant asylum legal instruments. Those data shall be
the requesting Member State. This time limit may be extended communicated to the Member State responsible within a
up to a maximum of one year if the transfer could not be reasonable period of time before a transfer is carried out, in
carried out due to imprisonment of the person concerned or order to ensure that its competent authorities in accordance
up to a maximum of eighteen months if the person concerned with national law have sufficient time to take the necessary
absconds. measures.

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2. The transferring Member State shall, in so far as such 2. The transferring Member State shall only transmit the
information is available to the competent authority in information referred to in paragraph 1 to the Member State
accordance with national law, transmit to the Member State responsible after having obtained the explicit consent of the
responsible any information that is essential in order to applicant and/or of his or her representative or, if the
safeguard the rights and immediate special needs of the applicant is physically or legally incapable of giving his or her
person to be transferred, and in particular: consent, when such transmission is necessary to protect the
vital interests of the applicant or of another person. The lack
of consent, including a refusal to consent, shall not constitute
(a) any immediate measures which the Member State
an obstacle to the transfer.
responsible is required to take in order to ensure that the
special needs of the person to be transferred are adequately
addressed, including any immediate health care that may be
required; 3. The processing of personal health data referred to in
paragraph 1 shall only be carried out by a health professional
who is subject, under national law or rules established by
(b) contact details of family members, relatives or any other national competent bodies, to the obligation of professional
family relations in the receiving Member State, where appli secrecy or by another person subject to an equivalent obligation
cable; of professional secrecy.

(c) in the case of minors, information on their education;
4. The exchange of information under this Article shall only
take place between the health professionals or other persons
(d) an assessment of the age of an applicant.
referred to in paragraph 3. The information exchanged shall
only be used for the purposes set out in paragraph 1 and
3. The exchange of information under this Article shall only shall not be further processed.
take place between the authorities notified to the Commission
in accordance with Article 35 of this Regulation using the
‘DubliNet’ electronic communication network set-up under 5. The Commission shall, by means of implementing acts,
Article 18 of Regulation (EC) No 1560/2003. The information adopt uniform conditions and practical arrangements for
exchanged shall only be used for the purposes set out in exchanging the information referred to in paragraph 1 of this
paragraph 1 of this Article and shall not be further processed. Article. Those implementing acts shall be adopted in accordance
with the examination procedure laid down in Article 44(2).
4. With a view to facilitating the exchange of information
between Member States, the Commission shall, by means of
implementing acts, draw up a standard form for the transfer 6. The rules laid down in Article 34(8) to (12) shall apply to
of the data required pursuant to this Article. Those imple the exchange of information pursuant to this Article.
menting acts shall be adopted in accordance with the exam
ination procedure laid down in Article 44(2).
Article 33
5. The rules laid down in Article 34(8) to (12) shall apply to A mechanism for early warning, preparedness and crisis
the exchange of information pursuant to this Article. management
1. Where, on the basis of, in particular, the information
Article 32 gathered by EASO pursuant to Regulation (EU) No 439/2010,
Exchange of health data before a transfer is carried out the Commission establishes that the application of this Regu
lation may be jeopardised due either to a substantiated risk of
1. For the sole purpose of the provision of medical care or particular pressure being placed on a Member State’s asylum
treatment, in particular concerning disabled persons, elderly system and/or to problems in the functioning of the asylum
people, pregnant women, minors and persons who have been system of a Member State, it shall, in cooperation with EASO,
subject to torture, rape or other serious forms of psychological, make recommendations to that Member State, inviting it to
physical and sexual violence, the transferring Member State draw up a preventive action plan.
shall, in so far as it is available to the competent authority in
accordance with national law, transmit to the Member State
responsible information on any special needs of the person to The Member State concerned shall inform the Council and the
be transferred, which in specific cases may include information Commission whether it intends to present a preventive action
on that person’s physical or mental health. That information plan in order to overcome the pressure and/or problems in the
shall be transferred in a common health certificate with the functioning of its asylum system whilst ensuring the protection
necessary documents attached. The Member State responsible of the fundamental rights of applicants for international
shall ensure that those special needs are adequately addressed, protection.
including in particular any essential medical care that may be
required.
A Member State may, at its own discretion and initiative, draw
The Commission shall, by means of implementing acts, draw up up a preventive action plan and subsequent revisions thereof.
the common health certificate. Those implementing acts shall be When drawing up a preventive action plan, the Member State
adopted in accordance with the examination procedure laid may call for the assistance of the Commission, other Member
down in Article 44(2). States, EASO and other relevant Union agencies.

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2. Where a preventive action plan is drawn up, the Member 4. Throughout the entire process for early warning,
State concerned shall submit it and shall regularly report on its preparedness and crisis management established in this
implementation to the Council and to the Commission. The Article, the Council shall closely monitor the situation and
Commission shall subsequently inform the European Parliament may request further information and provide political
of the key elements of the preventive action plan. The guidance, in particular as regards the urgency and severity of
Commission shall submit reports on its implementation to the situation and thus the need for a Member State to draw up
the Council and transmit reports on its implementation to the either a preventive action plan or, if necessary, a crisis
European Parliament. management action plan. The European Parliament and the
Council may, throughout the entire process, discuss and
provide guidance on any solidarity measures as they deem
appropriate.

The Member State concerned shall take all appropriate measures
to deal with the situation of particular pressure on its asylum
system or to ensure that the deficiencies identified are addressed
CHAPTER VII
before the situation deteriorates. Where the preventive action
plan includes measures aimed at addressing particular pressure ADMINISTRATIVE COOPERATION
on a Member State’s asylum system which may jeopardise the
application of this Regulation, the Commission shall seek the Article 34
advice of EASO before reporting to the European Parliament Information sharing
and to the Council.
1. Each Member State shall communicate to any Member
State that so requests such personal data concerning the
applicant as is appropriate, relevant and non-excessive for:

3. Where the Commission establishes, on the basis of
EASO’s analysis, that the implementation of the preventive
action plan has not remedied the deficiencies identified or
where there is a serious risk that the asylum situation in the (a) determining the Member State responsible;
Member State concerned develops into a crisis which is unlikely
to be remedied by a preventive action plan, the Commission, in
cooperation with EASO as applicable, may request the Member
State concerned to draw up a crisis management action plan
(b) examining the application for international protection;
and, where necessary, revisions thereof. The crisis management
action plan shall ensure, throughout the entire process,
compliance with the asylum acquis of the Union, in particular
with the fundamental rights of applicants for international
protection. (c) implementing any obligation arising under this Regulation.

Following the request to draw up a crisis management action 2. The information referred to in paragraph 1 may only
plan, the Member State concerned shall, in cooperation with the cover:
Commission and EASO, do so promptly, and at the latest
within three months of the request.

(a) personal details of the applicant, and, where appropriate, his
or her family members, relatives or any other family
relations (full name and where appropriate, former name;
The Member State concerned shall submit its crisis management
nicknames or pseudonyms; nationality, present and former;
action plan and shall report, at least every three months, on its
date and place of birth);
implementation to the Commission and other relevant stake
holders, such as EASO, as appropriate.

(b) identity and travel papers (references, validity, date of issue,
issuing authority, place of issue, etc.);
The Commission shall inform the European Parliament and the
Council of the crisis management action plan, possible revisions
and the implementation thereof. In those reports, the Member
State concerned shall report on data to monitor compliance
with the crisis management action plan, such as the length of (c) other information necessary for establishing the identity of
the procedure, the detention conditions and the reception the applicant, including fingerprints processed in accordance
capacity in relation to the inflow of applicants. with Regulation (EU) No 603/2013;

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(d) places of residence and routes travelled; 6. The exchange of information shall be effected at the
request of a Member State and may only take place between
authorities whose designation by each Member State has been
communicated to the Commission in accordance with
(e) residence documents or visas issued by a Member State; Article 35(1).

(f) the place where the application was lodged; 7. The information exchanged may only be used for the
purposes set out in paragraph 1. In each Member State such
information may, depending on its type and the powers of the
recipient authority, only be communicated to the authorities
(g) the date on which any previous application for international and courts and tribunals entrusted with:
protection was lodged, the date on which the present appli
cation was lodged, the stage reached in the proceedings and
the decision taken, if any.
(a) determining the Member State responsible;

3. Furthermore, provided it is necessary for the examination (b) examining the application for international protection;
of the application for international protection, the Member State
responsible may request another Member State to let it know
on what grounds the applicant bases his or her application and,
where applicable, the grounds for any decisions taken (c) implementing any obligation arising under this Regulation.
concerning the applicant. The other Member State may refuse
to respond to the request submitted to it, if the communication
of such information is likely to harm its essential interests or 8. The Member State which forwards the information shall
the protection of the liberties and fundamental rights of the ensure that it is accurate and up-to-date. If it transpires that it
person concerned or of others. In any event, communication has forwarded information which is inaccurate or which should
of the information requested shall be subject to the written not have been forwarded, the recipient Member States shall be
approval of the applicant for international protection, informed thereof immediately. They shall be obliged to correct
obtained by the requesting Member State. In that case, the such information or to have it erased.
applicant must know for what specific information he or she
is giving his or her approval.
9. The applicant shall have the right to be informed, on
request, of any data that is processed concerning him or her.
4. Any request for information shall only be sent in the
context of an individual application for international protection.
It shall set out the grounds on which it is based and, where its If the applicant finds that the data have been processed in
purpose is to check whether there is a criterion that is likely to breach of this Regulation or of Directive 95/46/EC, in particular
entail the responsibility of the requested Member State, shall because they are incomplete or inaccurate, he or she shall be
state on what evidence, including relevant information from entitled to have them corrected or erased.
reliable sources on the ways and means by which applicants
enter the territories of the Member States, or on what specific
and verifiable part of the applicant’s statements it is based. It is
The authority correcting or erasing the data shall inform, as
understood that such relevant information from reliable sources
appropriate, the Member State transmitting or receiving the
is not in itself sufficient to determine the responsibility and the
information.
competence of a Member State under this Regulation, but it
may contribute to the evaluation of other indications relating
to an individual applicant.
The applicant shall have the right to bring an action or a
complaint before the competent authorities or courts or
tribunals of the Member State which refused the right of
5. The requested Member State shall be obliged to reply access to or the right of correction or erasure of data relating
within five weeks. Any delays in the reply shall be duly justified. to him or her.
Non-compliance with the five week time limit shall not relieve
the requested Member State of the obligation to reply. If the
research carried out by the requested Member State which did
not respect the maximum time limit withholds information 10. In each Member State concerned, a record shall be kept,
which shows that it is responsible, that Member State may in the individual file for the person concerned and/or in a
not invoke the expiry of the time limits provided for in register, of the transmission and receipt of information
Articles 21, 23 and 24 as a reason for refusing to comply exchanged.
with a request to take charge or take back. In that case, the
time limits provided for in Articles 21, 23 and 24 for
submitting a request to take charge or take back shall be 11. The data exchanged shall be kept for a period not
extended by a period of time which shall be equivalent to the exceeding that which is necessary for the purposes for which
delay in the reply by the requested Member State. they are exchanged.

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12. Where the data are not processed automatically or are To the extent that such arrangements are not compatible with
not contained, or intended to be entered, in a file, each Member this Regulation, the Member States concerned shall amend the
State shall take appropriate measures to ensure compliance with arrangements in such a way as to eliminate any incompati
this Article through effective checks. bilities observed.

Article 35 3. Before concluding or amending any arrangement referred
Competent authorities and resources to in paragraph 1(b), the Member States concerned shall consult
the Commission as to the compatibility of the arrangement
1. Each Member State shall notify the Commission without with this Regulation.
delay of the specific authorities responsible for fulfilling the
obligations arising under this Regulation, and any amendments
thereto. The Member States shall ensure that those authorities
have the necessary resources for carrying out their tasks and in 4. If the Commission considers the arrangements referred to
particular for replying within the prescribed time limits to in paragraph 1(b) to be incompatible with this Regulation, it
requests for information, requests to take charge of and shall, within a reasonable period, notify the Member States
requests to take back applicants. concerned. The Member States shall take all appropriate steps
to amend the arrangement concerned within a reasonable time
in such a way as to eliminate any incompatibilities observed.
2. The Commission shall publish a consolidated list of the
authorities referred to in paragraph 1 in the Official Journal of the
European Union. Where there are amendments thereto, the 5. Member States shall notify the Commission of all
Commission shall publish once a year an updated consolidated arrangements referred to in paragraph 1, and of any
list. denunciation thereof, or amendment thereto.

3. The authorities referred to in paragraph 1 shall receive the CHAPTER VIII
necessary training with respect to the application of this Regu
lation. CONCILIATION

Article 37

4. The Commission shall, by means of implementing acts, Conciliation
establish secure electronic transmission channels between the 1. Where the Member States cannot resolve a dispute on any
authorities referred to in paragraph 1 for transmitting matter related to the application of this Regulation, they may
requests, replies and all written correspondence and for have recourse to the conciliation procedure provided for in
ensuring that senders automatically receive an electronic proof paragraph 2.
of delivery. Those implementing acts shall be adopted in
accordance with the examination procedure referred to in
Article 44(2).
2. The conciliation procedure shall be initiated by a request
from one of the Member States in dispute to the Chairman of
the Committee set up by Article 44. By agreeing to use the
Article 36 conciliation procedure, the Member States concerned undertake
Administrative arrangements to take the utmost account of the solution proposed.
1. Member States may, on a bilateral basis, establish adminis
trative arrangements between themselves concerning the
practical details of the implementation of this Regulation, in The Chairman of the Committee shall appoint three members
order to facilitate its application and increase its effectiveness. of the Committee representing three Member States not
Such arrangements may relate to: connected with the matter. They shall receive the arguments
of the parties either in writing or orally and, after deliberation,
shall propose a solution within one month, where necessary
after a vote.
(a) exchanges of liaison officers;

(b) simplification of the procedures and shortening of the time The Chairman of the Committee, or his or her deputy, shall
limits relating to transmission and the examination of chair the discussion. He or she may put forward his or her
requests to take charge of or take back applicants. point of view but may not vote.

2. Member States may also maintain the administrative Whether it is adopted or rejected by the parties, the solution
arrangements concluded under Regulation (EC) No 343/2003. proposed shall be final and irrevocable.

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CHAPTER IX (b) a period expressed in weeks or months shall end with the
expiry of whichever day in the last week or month is the
TRANSITIONAL PROVISIONS AND FINAL PROVISIONS
same day of the week or falls on the same date as the day
Article 38 during which the event or action from which the period is
to be calculated occurred or took place. If, in a period
Data security and data protection expressed in months, the day on which it should expire
Member States shall take all appropriate measures to ensure the does not occur in the last month, the period shall end
security of transmitted personal data and in particular to avoid with the expiry of the last day of that month;
unlawful or unauthorised access or disclosure, alteration or loss
of personal data processed.
(c) time limits shall include Saturdays, Sundays and official
holidays in any of the Member States concerned.

Each Member State shall provide that the national supervisory
authority or authorities designated pursuant to Article 28(1) of Article 43
Directive 95/46/EC shall monitor independently, in accordance
with its respective national law, the lawfulness of the Territorial scope
processing, in accordance with this Regulation, of personal
As far as the French Republic is concerned, this Regulation shall
data by the Member State in question.
apply only to its European territory.

Article 39 Article 44
Confidentiality Committee
Member States shall ensure that the authorities referred to in 1. The Commission shall be assisted by a committee. That
Article 35 are bound by the confidentiality rules provided for in committee shall be a committee within the meaning of Regu
national law, in relation to any information they obtain in the lation (EU) No 182/2011.
course of their work.

2. Where reference is made to this paragraph, Article 5 of
Article 40 Regulation (EU) No 182/2011 shall apply.

Penalties
Where the committee delivers no opinion, the Commission
Member States shall take the necessary measures to ensure that
shall not adopt the draft implementing act and the third
any misuse of data processed in accordance with this Regulation
subparagraph of Article 5(4) of Regulation (EU) No 182/2011
is punishable by penalties, including administrative and/or
shall apply.
criminal penalties in accordance with national law, that are
effective, proportionate and dissuasive.
Article 45

Article 41 Exercise of the delegation

Transitional measures 1. The power to adopt delegated acts is conferred on the
Commission subject to the conditions laid down in this Article.
Where an application has been lodged after the date mentioned
in the second paragraph of Article 49, the events that are likely
to entail the responsibility of a Member State under this Regu 2. The power to adopt delegated acts referred to in Articles
lation shall be taken into consideration, even if they precede 8(5) and 16(3) shall be conferred on the Commission for a
that date, with the exception of the events mentioned in period of 5 years from the date of entry into force of this
Article 13(2). Regulation. The Commission shall draw up a report in respect
of the delegation of power not later than nine months before
the end of the 5-year period. The delegation of power shall be
Article 42 tacitly extended for periods of an identical duration, unless the
European Parliament or the Council opposes such extension not
Calculation of time limits later than three months before the end of each period.
Any period of time prescribed in this Regulation shall be
calculated as follows:
3. The delegation of power referred to in Articles 8(5) and
16(3) may be revoked at any time by the European Parliament
or by the Council. A decision to revoke shall put an end to the
(a) where a period expressed in days, weeks or months is to be delegation of the power specified in that decision. It shall take
calculated from the moment at which an event occurs or an effect the day following the publication of the decision in the
action takes place, the day during which that event occurs Official Journal of the European Union or at a later date specified
or that action takes place shall not be counted as falling therein. It shall not affect the validity of any delegated acts
within the period in question; already in force.

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4. As soon as it adopts a delegated act, the Commission shall Commission (Eurostat), statistics concerning the application of
notify it simultaneously to the European Parliament and to the this Regulation and of Regulation (EC) No 1560/2003.
Council.
Article 48
5. A delegated act adopted pursuant to Articles 8(5) and
16(3) shall enter into force only if no objection has been Repeal
expressed either by the European Parliament or the Council Regulation (EC) No 343/2003 is repealed.
within a period of four months of notification of that act to
the European Parliament and to the Council or if, before the Articles 11(1), 13, 14 and 17 of Regulation (EC) No
expiry of that period, the European Parliament and the Council 1560/2003 are repealed.
have both informed the Commission that they will not object.
That period shall be extended by two months at the initiative of References to the repealed Regulation or Articles shall be
the European Parliament or of the Council. construed as references to this Regulation and shall be read in
accordance with the correlation table in Annex II.
Article 46
Article 49
Monitoring and evaluation
Entry into force and applicability
By 21 July 2016, the Commission shall report to the European
Parliament and to the Council on the application of this Regu This Regulation shall enter into force on the twentieth day
lation and, where appropriate, shall propose the necessary following that of its publication in the Official Journal of the
amendments. Member States shall forward to the Commission European Union.
all information appropriate for the preparation of that report, at
the latest six months before that time limit expires. It shall apply to applications for international protection lodged
as from the first day of the sixth month following its entry into
After having submitted that report, the Commission shall report force and, from that date, it will apply to any request to take
to the European Parliament and to the Council on the appli charge of or take back applicants, irrespective of the date on
cation of this Regulation at the same time as it submits reports which the application was made. The Member State responsible
on the implementation of the Eurodac system provided for by for the examination of an application for international
Article 40 of Regulation (EU) No 603/2013. protection submitted before that date shall be determined in
accordance with the criteria set out in Regulation (EC) No
Article 47
343/2003.
Statistics
References in this Regulation to Regulation (EU) No 603/2013,
In accordance with Article 4(4) of Regulation (EC) No Directive 2013/32/EU and Directive 2013/33/EU shall be
862/2007 of the European Parliament and of the Council of construed, until the dates of their application, as references to
11 July 2007 on Community statistics on migration and inter Regulation (EC) No 2725/2000 (2), Directive 2003/9/EC (3) and
national protection (1), Member States shall communicate to the Directive 2005/85/EC (4) respectively.

This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaties.

Done at Brussels, 26 June 2013.

For the European Parliament For the Council
The President The President
M. SCHULZ A. SHATTER

(2) Council Regulation (EC) No 2725/2000 of 11 December 2000
concerning the establishment of ‘Eurodac’ for the comparison of
fingerprints for the effective application of the Dublin Convention
(OJ L 316, 15.12.2000, p. 1).
(3) Council Directive 2003/9/EC of 27 January 2003 laying down
minimum standards for the reception of asylum seekers (OJ L 31,
6.2.2003, p. 18).
(4) Council Directive 2005/85/EC of 1 December 2005 on minimum
standards on procedures for granting and withdrawing refugee status
(1) OJ L 199, 31.7.2007, p. 23. (OJ L 326, 13.12.2005, p. 13).

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ANNEX I

Repealed Regulations (referred to in Article 48)

Council Regulation (EC) No 343/2003
(OJ L 50, 25.2.2003, p. 1)
Commission Regulation (EC) No 1560/2003 only Articles 11(1), 13, 14 and 17
(OJ L 222, 5.9.2003, p. 3)

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ANNEX II

Correlation table

Regulation (EC) No 343/2003 This Regulation

Article 1 Article 1

Article 2(a) Article 2(a)

Article 2(b) —

Article 2(c) Article 2(b)

Article 2(d) Article 2(c)

Article 2(e) Article 2(d)

Article 2(f) Article 2(e)

Article 2(g) Article 2(f)

— Article 2(h)

— Article 2(i)

Article 2(h) Article 2(j)

Article 2(i) Article 2(g)

— Article 2(k)

Article 2(j) and (k) Article 2(l) and (m)

— Article 2(n)

Article 3(1) Article 3(1)

Article 3(2) Article 17(1)

Article 3(3) Article 3(3)

Article 3(4) Article 4(1), introductory wording

— Article 4(1)(a) to (f)

— Article 4(2) and (3)

Article 4(1) to (5) Article 20(1) to (5)

— Article 20(5), third subparagraph

— Article 5

— Article 6

Article 5(1) Article 7(1)

Article 5(2) Article 7(2)

— Article 7(3)

Article 6, first paragraph Article 8(1)

— Article 8(3)

Article 6, second paragraph Article 8(4)

Article 7 Article 9

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Regulation (EC) No 343/2003 This Regulation

Article 8 Article 10

Article 9 Article 12

Article 10 Article 13

Article 11 Article 14

Article 12 Article 15

— Article 16

Article 13 Article 3(2)

Article 14 Article 11

Article 15(1) Article 17(2), first subparagraph

Article 15(2) Article 16(1)

Article 15(3) Article 8(2)

Article 15(4) Article 17(2), fourth subparagraph

Article 15(5) Articles 8(5) and (6) and Article 16(2)

Article 16(1)(a) Article 18(1)(a)

Article 16(1)(b) Article 18(2)

Article 16(1)(c) Article 18(1)(b)

Article 16(1)(d) Article 18(1)(c)

Article 16(1)(e) Article 18(1)(d)

Article 16(2) Article 19(1)

Article 16(3) Article 19(2), first subparagraph

— Article 19(2), second subparagraph

Article 16(4) Article 19(3)

— Article 19(3), second subparagraph

Article 17 Article 21

Article 18 Article 22

Article 19(1) Article 26(1)

Article 19(2) Article 26(2) and Article 27(1)

— Article 27(2) to (6)

Article 19(3) Article 29(1)

Article 19(4) Article 29(2)

— Article 29(3)

Article 19(5) Article 29(4)

Article 20(1), introductory wording Article 23(1)

— Article 23(2)

— Article 23(3)

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Regulation (EC) No 343/2003 This Regulation

— Article 23(4)

Article 20(1)(a) Article 23(5), first subparagraph

— Article 24

Article 20(1)(b) Article 25(1)

Article 20(1)(c) Article 25(2)

Article 20(1)(d) Article 29(1), first subparagraph

Article 20(1)(e) Article 26(1), (2), Article 27(1), Article 29(1), second and
third subparagraphs

Article 20(2) Article 29(2)

Article 20(3) Article 23(5), second subparagraph

Article 20(4) Article 29(4)

— Article 28

— Article 30

— Article 31

— Article 32

— Article 33

Article 21(1) to (9) Article 34(1) to (9), first to third subparagraphs

— Article 34(9), fourth subparagraph

Article 21(10) to (12) Article 34(10) to (12)

Article 22(1) Article 35(1)

— Article 35(2)

— Article 35(3)

Article 22(2) Article 35(4)

Article 23 Article 36

— Article 37

— Article 40

Article 24(1) —

Article 24(2) Article 41

Article 24(3) —

Article 25(1) Article 42

Article 25(2) —

Article 26 Article 43

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Regulation (EC) No 343/2003 This Regulation

Article 27(1), (2) Article 44(1), (2)

Article 27(3) —

— Article 45

Article 28 Article 46

— Article 47

— Article 48

Article 29 Article 49

Regulation (EC) No 1560/2003 This Regulation

Article 11(1) —

Article 13(1) Article 17(2), first subparagraph

Article 13(2) Article 17(2), second subparagraph

Article 13(3) Article 17(2), third subparagraph

Article 13(4) Article 17(2), first subparagraph

Article 14 Article 37

Article 17(1) Articles 9, 10, 17(2), first subparagraph

Article 17(2) Article 34(3)

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STATEMENT BY THE COUNCIL, THE EUROPEAN PARLIAMENT AND THE COMMISSION

The Council and the European Parliament invite the Commission to consider, without prejudice to its right
of initiative, a revision of Article 8(4) of the Recast of the Dublin Regulation once the Court of Justice rules
on case C-648/11 MA and Others vs. Secretary of State for the Home Department and at the latest by the
time limits set in Article 46 of the Dublin Regulation. The European Parliament and the Council will then
both exercise their legislative competences, taking into account the best interests of the child.
The Commission, in a spirit of compromise and in order to ensure the immediate adoption of the proposal,
accepts to consider this invitation, which it understands as being limited to these specific circumstances and
not creating a precedent.

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Administrative Record — East Bay Sanctuary Covenant v. Barr, No. 3:19-cv-04073-JST (N.D. Cal.)

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