Procedures for Asylum and Bars to Asylum Eligibility, 67202-67260 [2020-23159]

Agencies

• Executive Office for Immigration Review
• DEPARTMENT OF HOMELAND SECURITY
• Department of Justice

[Federal Register Volume 85, Number 204 (Wednesday, October 21, 2020)]
[Rules and Regulations]
[Pages 67202-67260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23159]



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Vol. 85

Wednesday,

No. 204

October 21, 2020

Part IV





Department of Homeland Security





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Department of Justice





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Executive Office for Immigration Review





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8 CFR Parts 208 and 1208





Procedures for Asylum and Bars to Asylum Eligibility; Final Rule

Federal Register / Vol. 85, No. 204 / Wednesday, October 21, 2020 / 
Rules and Regulations

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

RIN 1615-AC41

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1208

[EOIR Docket No. 18-0002; A.G. Order No. 4873-2020]
RIN 1125-AA87


Procedures for Asylum and Bars to Asylum Eligibility

AGENCY: Executive Office for Immigration Review, Department of Justice; 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security.

ACTION: Final rule.

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SUMMARY: On December 19, 2019, the Department of Justice (``DOJ'') and 
the Department of Homeland Security (``DHS'') (collectively, ``the 
Departments'') published a notice of proposed rulemaking (``NPRM'') 
that would amend their respective regulations governing the bars to 
asylum eligibility. The Departments also proposed to clarify the effect 
of criminal convictions and to remove their respective regulations 
governing the automatic reconsideration of discretionary denials of 
asylum applications. This final rule (``final rule'' or ``rule'') 
responds to comments received and adopts the provisions of the NPRM 
with technical corrections to ensure clarity and internal consistency.

DATES: This rule is effective on November 20, 2020.

FOR FURTHER INFORMATION CONTACT: 
    Lauren Alder Reid, Assistant Director, Office of Policy, Executive 
Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls 
Church, VA 22041, telephone (703) 305-0289 (not a toll-free call).
    Maureen Dunn, Chief, Division of Humanitarian Affairs, Office of 
Policy and Strategy, U.S. Citizenship and Immigration Services 
(``USCIS''), DHS, 20 Massachusetts Avenue NW, Washington, DC 20529-
2140; telephone (202) 272-8377 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Summary of the Proposed Rule

    On December 19, 2019, the Departments published an NPRM that would 
amend their respective regulations governing the bars to asylum 
eligibility, clarify the effect of criminal convictions, and remove 
their respective regulations governing the automatic reconsideration of 
discretionary denials of asylum applications. Procedures for Asylum and 
Bars to Asylum Eligibility, 84 FR 69640 (Dec. 19, 2019).

A. Authority and Legal Framework

    The Departments published the proposed rule pursuant to their 
respective authorities regarding the adjudication of asylum 
applications. 84 FR at 69641-42, 69644-45.
    Regarding the DOJ, the Attorney General, through himself and the 
Executive Office for Immigration Review (``EOIR''), has authority over 
immigration adjudications. See 6 U.S.C. 521; section 103(g) of the 
Immigration and Nationality Act (``INA'' or ``the Act'') (8 U.S.C. 
1103(g)). Immigration judges within DOJ adjudicate defensive asylum 
applications filed during removal proceedings \1\ and affirmative 
asylum applications referred to the immigration courts by USCIS within 
DHS. INA 101(b)(4) (8 U.S.C. 1101(b)(4)); 8 CFR 1003.10(b), 1208.2. The 
Board of Immigration Appeals (``BIA'' or ``the Board'') hears appeals 
from immigration judges' decisions, including decisions related to the 
relief of asylum. 8 CFR 1003.1.
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    \1\ One exception is that asylum officers in DHS have initial 
jurisdiction to adjudicate asylum applications filed by 
unaccompanied alien children (``UAC'') in removal proceedings. INA 
208(b)(3)(C) (8 U.S.C. 1158(b)(3)(C)); see also 6 U.S.C. 279(g)(2) 
(UAC defined).
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    The immigration laws further provide the Attorney General with 
authority regarding immigration adjudications and determinations. For 
example, the Attorney General's determination with respect to all 
questions of law is ``controlling.'' INA 103(a)(1) (8 U.S.C. 
1103(a)(1)). The Attorney General possesses a general authority to 
``establish such regulations * * * as the Attorney General determines 
to be necessary for carrying out'' his authorities under the INA. INA 
103(g)(2) (8 U.S.C. 1103(g)(2)). In addition, the INA authorizes the 
Attorney General to (1) ``by regulation establish additional 
limitations and conditions, consistent with [INA 208 (8 U.S.C. 1158)], 
under which an alien shall be ineligible for asylum under,'' INA 
208(b)(1) (8 U.S.C. 1158(b)(1)); and (2) ``provide by regulation for * 
* * conditions or limitations on the consideration of an application 
for asylum not inconsistent with the Act.'' INA 208(b)(2)(C) and 
(d)(5)(B) (8 U.S.C. 1158(b)(2)(C) and (d)(5)(B)).
    Regarding the Department of Homeland Security, the Homeland 
Security Act of 2002 (``HSA''), Public Law 107-296, 116 Stat. 2135, as 
amended, transferred many functions related to the execution of Federal 
immigration law to the newly created DHS. The HSA charges the Secretary 
of Homeland Security (``the Secretary'') ``with the administration and 
enforcement of [the INA] and all other laws relating to the immigration 
and naturalization of aliens,'' INA 103(a)(1) (8 U.S.C. 1103(a)(1)), 
and grants the Secretary the power to take all actions ``necessary for 
carrying out'' the provisions of the immigration and nationality laws, 
INA 103(a)(3) (8 U.S.C. 1103(a)(3)). The HSA also transferred to USCIS 
responsibility for affirmative asylum applications, i.e., applications 
for asylum made outside the removal context. See 6 U.S.C. 271(b)(3). If 
an alien is not in removal proceedings, USCIS asylum officers determine 
in the first instance whether an alien's asylum application should be 
granted. See 8 CFR 208.2.

B. Provisions of the Proposed Rule

    The NPRM proposed to amend 8 CFR 208.13 and 1208.13 by adding new 
paragraphs (c)(6)-(9) and amending 8 CFR 208.16 and 1208.16 by removing 
and reserving paragraphs (e) in each section.
1. Bars to Asylum Eligibility
    Pursuant to the authorities outlined above, the Departments 
proposed to revise 8 CFR 208.13 and 1208.13 by adding paragraphs (c)(6) 
in each section to add the following bars on eligibility for asylum for 
the following aliens:
     Aliens who have been convicted of an offense arising under 
INA 274(a)(1)(A) or (a)(2) or INA 276 (8 U.S.C. 1324(a)(1)(A) or (a)(2) 
or 1326) (convictions related to alien harboring, alien smuggling, and 
illegal reentry). See 8 CFR 208.13(c)(6)(i) and 1208.13(c)(6)(i) 
(proposed); 84 FR at 69647-49.
     Aliens who have been convicted of a Federal, State, 
tribal, or local crime that the Attorney General or Secretary knows or 
has reason to believe was committed in support, promotion, or 
furtherance of the activity of a criminal street gang as that term is 
defined under the law of the jurisdiction where the conviction occurred 
or as in 18 U.S.C. 521(a). See 8 CFR 208.13(c)(6)(ii) and 
1208.13(c)(6)(ii) (proposed); 84 FR at 69649-50.
     Aliens who have been convicted of an offense for driving 
while intoxicated or impaired as those terms are defined under the law 
of the jurisdiction where

[[Page 67203]]

the conviction occurred (including a conviction for driving while under 
the influence of or impaired by alcohol or drugs) without regard to 
whether the conviction is classified as a misdemeanor or felony under 
Federal, State, tribal, or local law, in which such impaired driving 
was a cause of serious bodily injury or death of another person. See 8 
CFR 208.13(c)(6)(iii) and 1208.13(c)(6)(iii) (proposed); 84 FR at 
69650-51.
     Aliens who have been convicted of a second or subsequent 
offense for driving while intoxicated or impaired as those terms are 
defined under the law of the jurisdiction where the conviction occurred 
(including a conviction for driving while under the influence of or 
impaired by alcohol or drugs) without regard to whether the conviction 
is classified as a misdemeanor or felony under Federal, State, tribal, 
or local law. See 8 CFR 208.13(c)(6)(iv)(A) and 1208.13(c)(6)(iv)(A) 
(proposed); 84 FR at 69650-51.\2\
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    \2\ When determining whether an alien's offense qualifies under 
this provision, the NPRM further provided that the adjudicator would 
not be required to find the initial conviction as a predicate 
offense. 8 CFR 208.13(c)(6)(iv)(B), 1208.13(c)(6)(iv)(B) (proposed). 
Further, the NPRM provided that the adjudicator would be permitted 
to consider the underlying conduct of the crime and would not be 
limited to those facts found by the criminal court or otherwise 
contained in the record of conviction. 8 CFR 208.13(c)(6)(iv)(B), 
1208.13(c)(6)(iv)(B) (proposed). Instead, the adjudicator would be 
required only to make a factual determination that the alien was 
previously convicted for driving while intoxicated or impaired as 
those terms are defined under the law of the jurisdiction where the 
convictions occurred. 8 CFR 208.13(c)(6)(iv)(B), 
1208.13(c)(6)(iv)(B).
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     Aliens who have been convicted of a crime that involves 
conduct amounting to a crime of stalking; or a crime of child abuse, 
child neglect, or child abandonment; or that involves conduct amounting 
to a domestic assault or battery offense, including a misdemeanor crime 
of domestic violence, as described in section 922(g)(9) of title 18, a 
misdemeanor crime of domestic violence as described in section 
921(a)(33) of title 18, a crime of domestic violence as described in 
section 12291(a)(8) of title 34, or any crime based on conduct in which 
the alien harassed, coerced, intimidated, voluntarily or recklessly 
used (or threatened to use) force or violence against, or inflicted 
physical injury or physical pain, however slight, upon a person, and 
committed by (a) the person's current or former spouse, (b) an alien 
with whom the person shares a child in common, (c) an alien who is 
cohabitating with or who has cohabitated with the person as a spouse, 
(d) an alien similarly situated to a spouse of the person under the 
domestic or family violence laws of the jurisdiction, or (e) any other 
alien against a person who is protected from that alien's acts under 
the domestic or family violence laws of the United States or any State, 
tribal government, or unit of local government. See 8 CFR 
208.13(c)(6)(v)(A), 1208.13(c)(6)(v)(A) (proposed); 84 FR at 69651-53. 
The NPRM also provided that an alien's conduct considered grounds for 
deportability under section 237(a)(2)(E)(i) through (ii) of the Act (8 
U.S.C. 1227(a)(2)(E)(i)-(ii)) would not disqualify him or her from 
asylum under this provision if a determination was made that the alien 
satisfies the criteria in section 237(a)(7)(A) of the Act (8 U.S.C. 
1227(a)(7)(A)). See 8 CFR 208.13(c)(6)(v)(C), 1208.13(c)(6)(v)(C) 
(proposed); 84 FR at 69651-53.
     Aliens who have been convicted of any felony under 
Federal, State, tribal, or local law. See 8 CFR 208.13(c)(6)(vi)(A), 
1208.13(c)(6)(vi)(A) (proposed); 84 FR at 69645-47.
     Aliens who have been convicted of any misdemeanor offense 
under Federal, State, tribal, or local law that involves (1) possession 
or use of an identification document, authentication feature, or false 
identification document without lawful authority, unless the alien can 
establish that the conviction resulted from circumstances showing that 
the document was presented before boarding a common carrier, that the 
document related to the alien's eligibility to enter the United States, 
that the alien used the document to depart a country in which the alien 
has claimed a fear of persecution, and that the alien claimed a fear of 
persecution without delay upon presenting himself or herself to an 
immigration officer upon arrival at a United States port of entry; (2) 
the receipt of Federal public benefits, as defined in 8 U.S.C. 1611(c), 
from a Federal entity, or the receipt of similar public benefits from a 
State, tribal, or local entity, without lawful authority; or (3) 
possession or trafficking of a controlled substance or controlled 
substance paraphernalia, other than a single offense involving 
possession for one's own use of 30 grams or less of marijuana. See 8 
CFR 208.13(c)(6)(vi)(B), 1208.13(c)(6)(vi)(B) (proposed); 84 FR at 
69653-54.
     Aliens for whom there are serious reasons to believe have 
engaged in acts of battery or extreme cruelty, as defined in 8 CFR 
204.2(c)(1)(vi), upon a person and committed by the same list of aliens 
as set forth above regarding domestic-violence convictions. See 8 CFR 
208.13(c)(6)(vii)(A)-(E), 1208.13(c)(6)(vii)(A)-(E) (proposed); 84 FR 
at 69651-53. The NPRM further provided that an alien's offense would 
not disqualify him or her from asylum under this provision for crimes 
or conduct considered grounds for deportability under section 
237(a)(2)(E)(i) and (ii) of the Act if a determination was made that 
the alien satisfies the criteria in section 237(a)(7)(A) of the Act (8 
U.S.C. 1227(a)(7)(A)) (8 U.S.C. 1227(a)(2)(E)(i)-(ii)). See 8 CFR 
208.13(c)(6)(vii)(F), 1208.13(c)(6)(vii)(F) (proposed); 84 FR at 69651-
53.
2. Additional Instruction and Definitions for Analyzing the New Bars to 
Eligibility
    The Departments proposed to revise 8 CFR 208.13 and 1208.13 by 
adding paragraphs (c)(7) through (9), which would have provided 
relevant definitions and other procedural instructions for the 
implementation of the proposed bars to eligibility discussed above.
    First, this proposed revision would have defined the terms 
``felony'' (``any crime defined as a felony by the relevant 
jurisdiction * * * of conviction, or any crime punishable by more than 
one year of imprisonment'') and ``misdemeanor'' (``any crime defined as 
a misdemeanor by the relevant jurisdiction * * * of conviction, or any 
crime not punishable by more than one year of imprisonment''). 8 CFR 
208.13(c)(7)(i)-(ii), 1208.13(c)(7)(i)-(ii) (proposed); 84 FR at 69646, 
69653.
    The proposed rule further would have provided instructions that 
whether an activity would constitute a basis for removability is 
irrelevant to determining whether the activity would make an alien 
ineligible for asylum and that all criminal convictions referenced in 
the proposed bars to eligibility would include inchoate offenses. 8 CFR 
208.13(c)(7)(iii)-(iv), 1208.13(c)(7)(iii)-(iv) (proposed).
    Regarding convictions that have been modified, vacated, clarified, 
or otherwise altered, the proposed rule would have instructed that such 
modifications, vacaturs, clarifications, or alterations do not have any 
effect on the alien's eligibility for asylum unless the court issuing 
the order had jurisdiction and authority to do so, and the court did 
not do so for rehabilitative purposes or to alleviate possible 
immigration-related consequences of the conviction. 8 CFR 
208.13(c)(7)(v), 1208.13(c)(7)(v) (proposed); 84 FR at 69654-56. The 
rule would have further provided that the modification, vacatur, 
clarification, or other alteration is presumed to be for the purpose of 
ameliorating the immigration

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consequences of a conviction if it was entered subsequent to the 
initiation of removal proceedings or if the alien moved for the order 
more than one year following the original order of conviction or 
sentencing. 8 CFR 208.13(c)(8), 1208.13(c)(8) (proposed); 84 FR at 
69654-56. Finally, the proposed rule would have specifically allowed 
the asylum officer or immigration judge to ``look beyond the face of 
any order purporting to vacate a conviction, modify a sentence, or 
clarify a sentence'' to determine what effect such order should be 
given under proposed 8 CFR 208.13(c)(7)(v) and 1208.13(c)(7)(v). 8 CFR 
208.13(c)(9),1208.13(c)(9) (proposed); 84 FR at 69654-56.
3. Reconsideration of Discretionary Denials
    Lastly, the proposed rule would have removed and reserved 8 CFR 
208.16(e) and 1208.16(e), which provide for the automatic review of a 
discretionary denial of an alien's asylum application if the alien is 
subsequently granted withholding of removal. 84 FR at 69656-57.

II. Public Comments on the Proposed Rule

A. Summary of Public Comments

    The comment period for the NPRM closed on January 21, 2020, with 
581 comments received.\3\ Individual commenters submitted 503 comments, 
and 78 comments were submitted by organizations, including non-
government organizations, legal advocacy groups, non-profit 
organizations, religious organizations, congressional committees, and 
groups of members of Congress. Most individual commenters opposed the 
NPRM. All organizations opposed the NPRM.
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    \3\ The Departments reviewed all 581 comments submitted in 
response to the rule; however, the Departments did not post 5 of the 
comments to regulations.gov for public inspection. Of these 
comments, three were duplicates of another comment written by the 
same commenter, and two were written in Spanish. Accordingly, the 
Departments posted 576 comments.
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B. Comments Expressing Support for the Proposed Rule

    Comment: One commenter supported the final rule to ensure that 
individuals who qualify for asylum are granted that status only when 
merited in the exercise of discretion and to provide a uniform and fair 
standard to prevent criminal aliens from ``gaining a foothold in the 
United States.''
    One commenter stated that the NPRM was an appropriate exercise of 
discretionary authority. The commenter stated that asylum is an 
extraordinary benefit that offers a path to lawful permanent residence 
and United States citizenship and, thus, should be discretionary. The 
commenter stated that asylees are protected from removal, authorized to 
work in the United States, and may travel under certain circumstances, 
and that asylees' spouses and children are eligible for derivative 
status in the United States. The commenter stated that the United 
States asylum system is generous, asserting that, in fiscal year 2018, 
38,687 individuals were granted asylum, including 25,439 affirmative 
grants and 13,248 defensive grants. The commenter stated that this was 
the highest number of grants since fiscal year 2002.
    The commenter cited the BIA: ``The ultimate consideration when 
balancing factors in the exercise of discretion is to determine whether 
a grant of relief, or in this case protection, appears to be in the 
best interest of the United States.'' Matter of D-A-C-, 27 I&N Dec. 
575, 578 (BIA 2019) (citing Matter of C-V-T-, 22 I&N Dec. 7, 11 (BIA 
1998) and Matter of Mendez, 21 I&N Dec. 296, 305 (BIA 1996)). The 
commenter stated that criminal aliens, as described in the NPRM, should 
not be granted the benefit of asylum because their admission would not 
be in the best interest of the United States.
    The commenter emphasized that the NPRM would not bar individuals 
from all forms of fear-based protection and that individuals who were 
barred from asylum under the NPRM could still apply for withholding of 
removal under the INA or protection under the regulations issued 
pursuant to the legislation implementing the Convention Against Torture 
and Other Cruel, Inhuman or Degrading Treatment or Punishment (``CAT'' 
and ``CAT regulations'').\4\ The commenter opined that the NPRM would 
improve the integrity of the asylum system.
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    \4\ Adopted and opened for signature Dec. 10, 1984, G.A. Res. 
39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 
(1984) (entered into force June 26, 1987; for the United States Apr. 
18, 1988) (implemented in the immigration context in principal part 
at 8 CFR 208.16(c) through 208.18 and 8 CFR 1208.16(c) through 
1208.18). See Foreign Affairs Reform and Restructuring Act of 1998 
(``FARRA''), Public Law 105-277, div. G, sec. 2242, 112 Stat. 2681, 
2631-822 (8 U.S.C. 1231 note).
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    The commenter stated that the crimes and conduct listed in the NPRM 
should constitute a ``conclusive determination that an applicant does 
not merit asylum in the exercise of discretion.'' The commenter stated 
that the NPRM would ensure fair and uniform application of the 
immigration laws because aliens who have been convicted of similar 
crimes would not receive different outcomes depending on their 
adjudicator.
    The commenter stated that the NPRM was authorized by the Act, which 
the commenter stated provides for regulations establishing additional 
conditions or limitations on asylum. The commenter stated that the NPRM 
was consistent with existing limitations on asylum eligibility in the 
statute because several statutory provisions exclude individuals from 
asylum eligibility on the basis of criminal conduct or other conduct 
indicating that the applicant does not merit asylum. See INA 
208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)) (particularly serious 
crime); INA 208(b)(2)(A)(iii) (8 U.S.C. 1158(b)(2)(A)(iii)) (serious 
nonpolitical crime outside the United States); INA 208(b)(2)(B)(i) (8 
U.S.C. 1158(b)(2)(B)(i)) (conviction for aggravated felony); INA 
208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)) (offenses designated as 
particularly serious crimes or serious nonpolitical crimes by 
regulation); INA 208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i)) (alien 
engaged in persecution of another on account of a protected ground); 
INA 208(b)(2)(A)(iv) (8 U.S.C. 1158(b)(2)(A)(iv)) (reasonable grounds 
to regard alien as a danger to the security of the United States); INA 
208(b)(2)(A)(v) (8 U.S.C. 1158(b)(2)(A)(v)) (alien presents national 
security concerns or engaged in terrorist activity).
    The commenter supported the NPRM's proposed limitation on asylum 
eligibility for those who have been convicted of a felony, stating that 
felonies are categorized as such because they present more serious 
criminal conduct, which has a higher social cost. The commenter 
asserted that a felony conviction should be such a heavily weighted 
negative factor that it should conclusively establish that an alien 
does not merit asylum. The commenter supported defining a crime by the 
maximum possible sentence, as opposed to the actual sentence imposed, 
because of the variability of sentences that can be imposed on 
individuals who commit the same crime yet appear before different 
judges or are charged in different jurisdictions. The commenter 
asserted that immigration consequences should not vary based on the 
jurisdiction or a judge's ``individual personality'' and instead should 
be standardized in the interest of fairness, uniformity, and 
efficiency.
    Commenters also supported the NPRM's proposed limitation on 
eligibility for individuals convicted of alien harboring in violation 
of section 274(a)(1)(A) of the Act (8 U.S.C. 1324(a)(1)(A)). 
Specifically, the

[[Page 67205]]

commenters stated that smuggling involves a business where people are 
routinely treated not as human beings, but as chattel. The commenters 
stated that individuals who participate in smuggling, or who place 
others into the hands of smugglers, should not be eligible for asylum 
because the conduct required for such a conviction demonstrates 
contempt for U.S. immigration law and a disregard for the value of 
human life. Commenters similarly supported the NPRM's proposed 
limitation on eligibility for asylum for aliens who have been convicted 
of illegal reentry in violation of section 276 of the Act (8 U.S.C. 
1326). Commenters stated that such individuals have demonstrated 
contempt for U.S immigration law and should not be granted asylum. 
Commenters stated that a conviction under section 276 of the Act (8 
U.S.C. 1326) requires that an alien repeatedly violated the immigration 
laws because such a conviction requires that the alien illegally 
reentered after a prior removal and intentionally chose not to present 
himself or herself at a port of entry. The commenters stated that 
whether or not the final rule includes the felony bar to asylum, it 
should incorporate a mandatory bar for those convicted of illegal 
reentry.
    Commenters also expressed support for the NPRM's proposed 
limitation on asylum eligibility for individuals who have committed 
criminal acts on behalf of or in furtherance of a criminal street gang. 
The commenters stated that such activity is an indicator of ongoing 
danger to the community. The commenters noted that, although widespread 
criminal activity is not a sufficient legal basis to receive asylum 
protection, adjudicators routinely hear testimony about the harm 
suffered by people subjected to extortion threats, murders, 
kidnappings, and sexual assaults by organized criminal groups. The 
commenters stated that the United States immigration system should not 
award a discretionary benefit to those who would destabilize 
communities at home and abroad through violence.
    Commenters supported the NPRM's approach authorizing adjudicators 
to determine--on the basis of sufficient evidence--whether a particular 
criminal act was committed ``in support, promotion, or furtherance of a 
criminal street gang.'' Specifically, the commenters stated that the 
range of crimes committed by street gangs is broad and that not all 
gang members are convicted of a gang participation offense even when 
they commit a crime on behalf of the gang. The commenters noted that 
such a determination would not be based on ``mere suspicion'' but would 
only occur where the adjudicator knows or has reason to believe that 
the crime was committed in furtherance of gang activity on the basis of 
competent evidence. The commenters stated that ``[g]ang violence is a 
scourge on our communities, and those who further the goals of criminal 
street gangs should not be put on a path to citizenship.''
    Commenters expressed support for the NPRM's proposed limitation on 
asylum eligibility where an individual has been convicted of multiple 
driving-under-the-influence (``DUI'') offenses or a single offense 
resulting in death or serious bodily injury. The commenters stated that 
drunk and impaired driving is a dangerous activity that kills more than 
10,000 people in the United States each year and injures many more. The 
commenters stated that individuals with recidivist DUI records, or who 
have already caused injury or death, should not be rewarded with 
asylum. The commenters expressed support for the NPRM's proposed 
limitation on asylum eligibility for individuals who have been 
convicted of certain misdemeanors. The commenters encouraged the 
Departments to consider including misdemeanor offenses involving sexual 
abuse or offenses reflecting a danger to children, asserting that such 
offenses are indicative of an ongoing danger to the community.
    The commenters expressed support for the NPRM's approach to 
treating vacated, expunged, or modified convictions and sentences. The 
commenter stated that the approach is consistent with the Attorney 
General's decision in Matter of Thomas and Thompson, 27 I&N Dec. 674 
(A.G. 2019). The commenters also stated that such an approach would be 
appropriate in the interests of uniform application of the law across 
jurisdictions by helping to ensure that aliens convicted of the same or 
similar conduct receive the same consequence with respect to asylum 
eligibility.
    The commenters expressed support for the NPRM's proposed removal of 
8 CFR 208.16(e) and 1208.16(e), stating that these provisions are 
unnecessary. Specifically, the commenters stated that the current 
regulations require an adjudicator who denies an asylum application in 
the exercise of discretion to revisit and reconsider that denial by 
weighing factors that would already have been considered in the 
original discretionary analysis. The commenters stated that there 
should not be a presumption that the adjudicator did not properly weigh 
discretionary factors in the first instance. The commenters stated 
that, as noted by the NPRM, such a requirement is inefficient, 
requiring additional adjudicatory resources to re-evaluate a decision 
that was only just decided by the same adjudicator. The commenters also 
stated that an alien already has opportunities to seek review of that 
discretionary decision through motions or an appeal.
    Other commenters expressed general support for the NPRM. Some 
commenters stated that such a rule would make America safer. One 
commenter stated that further restrictions on asylum were necessary 
because individuals who have no basis to remain in the United States 
``routinely ask to use political asylum as a last ditch effort to 
remain.'' At least one commenter stated that the NPRM would not 
adversely affect ``innocent asylum seeker[s] truly escaping political 
persecution.'' Other commenters stated that all applications for relief 
should require at least a minimum of good character and behavior. One 
commenter stated that the NPRM ``is a direct result of state and local 
governments working to nullify undocumented criminal activity by 
dropping charges, expunging records or pardoning crimes, including 
serious crimes like armed robbery * * * sex assault, domestic abuse, 
wire fraud, identity theft etc.''
    One commenter expressed support for the NPRM's proposed limitation 
on asylum eligibility for individuals who are convicted of offenses 
related to controlled substances, stating that the United States must 
bar those who engage in drug trafficking into the United States. 
Another commenter expressed support for the proposed limitations on 
asylum eligibility for individuals who are convicted of domestic 
violence offenses or who engage in identity theft, stating that such 
individuals should not have the opportunity to be lawfully present in 
the United States.
    Response: The Departments note the commenters' support for the 
rule. The Departments have taken the commenters' recommendations under 
advisement.

C. Comments Expressing Opposition to the Proposed Rule

1. General Opposition
    Comment: Many commenters expressed general opposition to the NPRM. 
Some provided no reasoning, simply stating, ``I oppose this proposed 
rule'' with varying degrees of severity. Many commenters also asked the 
Departments to withdraw the NPRM. Others, as explained in the following 
sections, provided specific points of

[[Page 67206]]

opposition or their reasoning underlying their opposition.
    Response: The Departments are unable to provide a detailed response 
to comments that express only general opposition without providing 
reasoning for their opposition. The following sections of this final 
rule provide the Departments' responses to comments that offered 
specific points of opposition or reasoning underlying their opposition.
2. Violation of Law
a. Violation of Domestic Law
    Commenters asserted that the proposed rule violated United States 
law in three main ways: First, it violated law regarding particularly 
serious crimes; second, it improperly disposed of the categorical 
approach to determine immigration consequences of criminal offenses; 
and third, it violated law regarding the validity of convictions for 
immigration purposes. Overall, commenters were concerned that the 
NPRM's provisions contradicting case law would result in the ``wrongful 
exclusion'' of immigrants from asylum eligibility.
i. Law Regarding ``Particularly Serious Crime'' Bar
    Comment: Commenters opposed the NPRM, stating that it violates 
domestic law and contravenes existing case law from the BIA, the 
circuit courts of appeals, and the Supreme Court of the United States 
regarding the particularly serious crime bar to asylum for multiple 
reasons. See INA 208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)). In 
general, commenters alleged that the NPRM was untethered to the 
approach set out by Congress regarding particularly serious crimes and 
that if Congress had sought to sweepingly bar individuals from asylum 
eligibility based on their conduct or felony convictions, as outlined 
in the NPRM, it would have done so in the Act. Commenters stated that 
adding seven new categories of barred conduct rendered the language of 
section 208(b)(2) of the Act (8 U.S.C. 1158(b)(2)) essentially 
meaningless and drained the term ``particularly serious crime'' of any 
sensible meaning because the Departments were effectively considering 
all offenses, regardless of seriousness, as falling under the 
particularly serious crime bar to asylum. One organization asserted 
that this violated the Supreme Court's requirements for statutory 
interpretation, citing Corley v. United States, 556 U.S. 303, 314 
(2009) (``[O]ne of the most basic interpretive canons[ ] [is] that a 
statute should be construed so that effect is given to all its 
provisions, so that no part will be inoperative or superfluous, void or 
insignificant.'' (alterations and quotation marks omitted)).
    At the same time, commenters also asserted that the additional 
crimes to be considered particularly serious by the proposed rule have 
been repeatedly recognized as not particularly serious. For example, 
commenters cited Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987), and 
noted the BIA's conclusion that, ``in light of the unusually harsh 
consequences which may befall a [noncitizen] who has established a 
well-founded fear of persecution; the danger of persecution should 
generally outweigh all but the most egregious of adverse factors.'' 
Paraphrasing Delgado v. Holder, 648 F.3d 1095, 1110 (9th Cir. 2010) 
(Reinhardt, J., concurring in part and concurring in the judgment), 
commenters stated that, outside of the aggravated felony context, ``it 
has generally been well understood by the Board of Immigration Appeals 
and the Courts of Appeals that low-level, `run-of-the-mill' offenses do 
not constitute particularly serious crimes.''
    Commenters asserted that low-level offenses like misdemeanor DUI 
with no injury or simple possession of a controlled substance cannot 
constitute a particularly serious crime. In support of this 
proposition, commenters cited Mellouli v. Lynch, 575 U.S. 798 (2015) 
(possession of drug paraphernalia was not a controlled substances 
offense); Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (subsequent 
marijuana possession offense is not an aggravated felony); and Leocal 
v. Ashcroft, 543 U.S. 1 (2004) (conviction for DUI was not an 
aggravated felony crime of violence). Commenters asserted that if the 
Departments wished to abrogate the Supreme Court's interpretation of 
the statute, they should do so by passing new legislation, not by 
proposing what the commenters consider to be unlawful rules.
    Moreover, commenters asserted that the ``essential key to 
determining whether a crime is particularly serious * * * is whether 
the nature of the crime is one which indicates that the alien poses a 
danger to the community.'' Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014) 
(quotation marks omitted). Commenters argued that despite this 
analytical requirement, the proposed rule arbitrarily re-categorizes 
many offenses as particularly serious without consideration of whether 
the nature of the crime indicates that the alien poses a danger to the 
community. Commenters expressed additional concern that this 
categorization removes all discretion from the adjudicator to determine 
whether an individual's circumstances merit such a harsh penalty.
    Commenters further asserted that, because Congress made commission 
of a ``particularly serious crime'' a bar to asylum but did not make 
commission of other categories of crimes such a bar, Congress intended 
to preclude that result. Commenters alleged that the NPRM violated the 
canon of construction articulated in United States v. Vonn, 535 U.S. 
55, 65 (2002), expressio unius est exclusio alterius, which means that 
``expressing one item of a commonly associated group or series excludes 
another left unmentioned,'' because it attempted to create additional 
categories of crime bars to asylum eligibility in a manner inconsistent 
with the statute and congressional intent. Commenters analogized these 
NPRM provisions to another rule that had categorically barred 
``arriving aliens'' from applying for adjustment of status in removal 
proceedings. See 8 CFR 245.1(c)(8) (1997). The Federal courts of 
appeals were split over whether that now-rescinded rule circumvented 
the Act and congressional intent because adjustment of status was 
ordinarily a discretionary determination.\5\
---------------------------------------------------------------------------

    \5\ Compare Scheerer v. U.S. Att'y Gen., 445 F.3d 1311, 1321-22 
(11th Cir. 2006) (holding that the regulation was unlawful); Bona v. 
Gonzales, 425 F.3d 663, 668-71 (9th Cir. 2005) (same); Zheng v. 
Gonzales, 422 F.3d 98, 116-20 (3d Cir. 2005) (same), and Succar v. 
Ashcroft, 394 F.3d 8, 29 (1st Cir. 2005) (same), with Akhtar v. 
Gonzales, 450 F.3d 587, 593-95 (5th Cir. 2006) (upholding validity 
of the regulation), rehearing en banc granted and remanded on other 
grounds, 461 F.3d 584 (2006) (en banc), and Mouelle v. Gonzales, 416 
F.3d 923, 928-30 (8th Cir. 2005) (same), vacated on other grounds, 
126 S. Ct. 2964 (2006).
---------------------------------------------------------------------------

    Commenters further alleged that the NPRM unlawfully categorically 
exempted a wide range of offenses from a positive discretionary 
adjudication of asylum. Commenters acknowledged that the Attorney 
General can provide for ``additional limitations and conditions'' on 
asylum applications consistent with the asylum statute by designating 
offenses as per se particularly serious, see INA 208(b)(2)(B)(ii) (8 
U.S.C. 1158(b)(2)(B)(ii)), but commenters emphasized that crimes that 
are not particularly serious are still subject to a discretionary 
determination. Commenters stated that Congress did not intend to 
authorize the Attorney General to categorically bar ``large swaths of 
asylum seekers from protection.'' Commenters alleged that the 
Departments purposefully wrote the NPRM in this way (designating the 
bars as both particularly serious crimes and categorical exceptions to 
positive

[[Page 67207]]

discretionary adjudication) to ``insulate the Proposed Rules from 
review.''
    Response: The Departments disagree with comments asserting that the 
rule violates domestic law. Commenters asserted that Congress did not 
intend for the Attorney General to categorically bar ``large swaths of 
asylum seekers from protection.'' However, Congress, in the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 
(``IIRIRA''), vested the Attorney General with broad authority to 
establish conditions or limitations on asylum. Public Law 104-208, div. 
C, 110 Stat. 3009, 3009-546.
    At that time, Congress created three categories of aliens who are 
barred from applying for asylum and adopted six other mandatory bars to 
asylum eligibility. IIRIRA, sec. 604(a), 110 Stat. at 3009-690 through 
3009-694 (codified at INA 208(a)(2)(A)-(C), (b)(2)(A)(i)-(vi) (8 U.S.C. 
1158(a)(2)(A)-(C), (b)(2)(A)(i)-(vi))). Congress further expressly 
authorized the Attorney General to expand upon two bars to asylum 
eligibility--the bars for ``particularly serious crimes'' and ``serious 
nonpolitical crimes.'' INA 208(b)(2)(B)(ii) (8 U.S.C. 
1158(b)(2)(B)(ii)). Congress also vested the Attorney General with the 
ability to establish by regulation ``any other conditions or 
limitations on the consideration of an application for asylum,'' so 
long as those limitations are ``not inconsistent with this chapter.'' 
INA 208(d)(5)(B) (8 U.S.C. 1158(d)(5)(B)).
    Significantly, ``[t]his delegation of authority means that Congress 
was prepared to accept administrative dilution of the asylum guarantee 
in Sec.  1158(a)(1),'' as ``the statute clearly empowers'' the Attorney 
General and the Secretary to ``adopt[ ] further limitations'' on 
eligibility to apply for or receive asylum. R-S-C v. Sessions, 869 F.3d 
1176, 1187 & n.9 (10th Cir. 2017). In authorizing ``additional 
limitations and conditions'' by regulation, the statute gives the 
Attorney General and the Secretary broad authority in determining what 
the ``limitations and conditions'' should be. The Act instructs only 
that additional limitations on eligibility are to be established ``by 
regulation,'' and must be ``consistent with'' the rest of section 208 
of the Act (8 U.S.C. 1158). INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)); 
see also INA 208(d)(5)(B) (8 U.S.C. 1158(d)(5)(B)).
    Moreover, a long-held principle of administrative law is that an 
agency, within its congressionally delegated policymaking 
responsibilities, may ``properly rely upon the incumbent 
administration's view of wise policy to inform its judgments.'' 
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 
865 (1984). Accordingly, an agency may make policy choices that 
Congress either inadvertently or intentionally left to be resolved by 
the agency charged with administration of the statute, given the 
current realities faced by the agency. See id. at 865-66. Through the 
publication of the NPRM, the Departments have properly exercised this 
congressionally delegated authority. Such policymaking is well within 
the confines of permissible agency action. Additionally, despite 
commenters' assertions that the Departments should pursue these changes 
through legislative channels, the Departments, as part of the Executive 
Branch, do not pursue legislative changes but instead rely on 
regulatory authority to interpret and enforce legislation as enacted by 
Congress.
    As explained in the NPRM, Congress granted the Attorney General and 
the Secretary broad authority to determine additional ``limitations and 
conditions'' on asylum. For example, the Attorney General and the 
Secretary have authority to impose procedural requirements for asylum 
seekers and to designate by regulation additional crimes that could be 
considered particularly serious crimes or serious nonpolitical crimes. 
See INA 208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)); see also INA 
208(2)(5)(B) (8 U.S.C. 1158(d)(5)(B)).
    Based on the comments received, the Departments realize that the 
preamble to the NPRM resulted in confusion regarding which authority 
the Departments relied on in promulgating this rule. Specifically, 
commenters raised concerns regarding the Departments' reliance on 
section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) in 
support of some of the new bars to asylum eligibility. In response to 
these concerns and confusion, the Departments emphasize that, as in the 
proposed rule, the regulatory text itself does not designate any 
offenses covered in 8 CFR 208.13(c)(6) or 1208.13(c)(6) as specific 
particularly serious crimes.\6\ Instead, this rule, like the proposed 
rule, sets out seven new ``additional limitations,'' consistent with 
the Departments' authority at INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)) 
to establish ``additional limitations and conditions'' on asylum 
eligibility. See 8 CFR 208.13(c)(6), 1208.13(c)(6).
---------------------------------------------------------------------------

    \6\ The Departments do not intend, however, to imply that an 
immigration adjudicator could not or should not find these offenses 
to be particularly serious crimes in the context of adjudicating 
individual asylum applications on a case-by-case basis.
---------------------------------------------------------------------------

    This reliance on the authority at section 208(b)(2)(C) of the Act 
(8 U.S.C. 1158(b)(2)(C)) is consistent with the proposed rule. There, 
although the Departments cited the authority at section 
208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) to designate 
offenses as particularly serious crimes, the Departments also cited the 
authority at section 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)) in support 
of each category of bars included in the rule. See generally 84 FR at 
69645-54. The references throughout the preamble in the NPRM to the 
Attorney General's and the Secretary's authorities to designate 
additional particularly serious crimes accordingly highlighted one of 
two alternative bases for the inclusion of most of the new bars to 
asylum eligibility and sought to elucidate the serious nature of these 
crimes and the Departments' reasoning for including these offenses in 
the new provisions. In other words, although the Departments are not 
specifically designating any categories of offenses as ``particularly 
serious crimes,'' the authority of the Attorney General and the 
Secretary to deny eligibility to aliens convicted of such offenses 
helps demonstrate that the new bars are ``consistent with'' the INA 
because the offenses to which the new bars apply--similar to 
``particularly serious crimes''--indicate that the aliens who commit 
them may be dangerous to the community of the United States or 
otherwise may not merit eligibility for asylum. As a result, the 
Departments need not address in detail commenters' concerns about 
whether discrete categories of offenses should constitute 
``particularly serious crimes'' because (1) the new rule does not 
actually designate any specific offense as such crimes; and (2) section 
208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)), as already discussed 
and as recognized by the Departments, independently authorizes the 
Attorney General and the Secretary to establish additional limitations 
and conditions on asylum eligibility.
    Commenters asserted that Congress intended for the only criminal 
bars to asylum to be those contemplated by the particularly serious 
crime and serious nonpolitical crime bars. The Departments, however, 
disagree. Although the INA explicitly permits the Attorney General and 
the Secretary to designate additional crimes as particularly serious 
crimes or serious nonpolitical crimes, this does not mean that any time 
the Attorney General and the Secretary decide to limit eligibility for 
asylum based on criminal activity,

[[Page 67208]]

the limit must be based on either a particularly serious crime or a 
serious nonpolitical crime. Rather, the Attorney General and the 
Secretary may choose to designate certain criminal activity as a 
limitation or condition on asylum eligibility separate and apart from 
the scope of crimes considered particularly serious. These additional 
limitations must simply be established by regulation and must be 
consistent with the rest of section 208 of the Act (8 U.S.C. 1158).
    Nothing in the Act suggests that Congress intended for the 
particularly serious crime bar at section 208(b)(2)(A)(ii) of the Act 
(8 U.S.C. 1158(b)(2)(A)(ii)) or the serious nonpolitical crime bar at 
section 208(b)(2)(A)(iii) of the Act (8 U.S.C. 1158(b)(2)(A)(iii)) to 
be the sole bars to asylum based on criminal activity. The Departments 
disagree with comments suggesting that existing exceptions to asylum 
eligibility occupy the entire field of existing exceptions. The 
Attorney General and the Secretary have the authority to impose 
additional limitations on asylum eligibility that are otherwise 
consistent with the limitations contained section 208(b)(2) of the Act 
(8 U.S.C. 1158(b)(2)). Those existing limitations include limitations 
on eligibility because of criminal conduct. See, e.g., INA 
208(b)(2)(A)(ii), (iii) (particularly serious crime and serious 
nonpolitical crime)) (8 U.S.C. 1158(b)(2)(A)(ii), (iii)). Deciding to 
impose additional limitations on asylum eligibility that are also based 
on criminal conduct, as the Departments are doing in this rulemaking, 
is accordingly consistent with the statute. See INA 208(b)(2)(C) (8 
U.S.C. 1158(b)(2)(C)).
    Of note, in Trump v. Hawaii, the Supreme Court determined that the 
INA's provisions regarding the entry of aliens ``did not implicitly 
foreclose the Executive from imposing tighter restrictions,'' even in 
circumstances in which those restrictions concerned a subject 
``similar'' to the one that Congress ``already touch[ed] on in the 
INA.'' 138 S. Ct. 2392, 2411-12 (2018). Thus, by the same reasoning, 
Congress's statutory command that certain aliens are ineligible for 
asylum based on a conviction for a particularly serious crime or 
serious nonpolitical crime does not deprive the Attorney General and 
Secretary of authority, by regulation, to deny asylum eligibility for 
certain other aliens whose circumstances may--in a general sense--be 
``similar.''
    Commenters' references to the proposed rule revising 8 CFR 
245.1(c)(8) (1997) (limitations on eligibility for adjustment of 
status) and subsequent case law striking down that proposed rule are 
inapposite. The First Circuit explained that the adjustment of status 
statute grants the Attorney General discretion to grant applications, 
but that this authority does not extend to grant the Attorney General 
authority to define eligibility for that relief. Succar, 394 F.3d at 
10. However, unlike the adjustment of status statute, INA 245(a) (8 
U.S.C. 1255(a)), the asylum statute explicitly grants the Attorney 
General authority to define additional limitations on eligibility for 
relief that are ``consistent with this section.'' \7\ INA 208(b)(2)(C) 
(8 U.S.C. 1158(b)(2)(C)). This express grant of authority contradicts 
any implied limitation on the Attorney General's authority that might 
otherwise be inferred from Congress's delineation of certain statutory 
bars.
---------------------------------------------------------------------------

    \7\ Moreover, at least two Federal courts of appeals rejected 
the reasoning in Succar. See supra note 5; see also Lopez v. Davis, 
531 U.S. 230, 243-44 (2001) (``We also reject [the] argument * * * 
that the agency must not make categorical exclusions, but may rely 
only on case-by-case assessments. Even if a statutory scheme 
requires individualized determinations, which this scheme does not, 
the decisionmaker has the authority to rely on rulemaking to resolve 
certain issues of general applicability unless Congress clearly 
expresses an intent to withhold that authority. The approach pressed 
by [the petitioner]--case-by-case decisionmaking in thousands of 
cases each year--could invite favoritism, disunity, and 
inconsistency. The [agency] is not required continually to revisit 
issues that may be established fairly and efficiently in a single 
rulemaking proceeding.'' (citations, footnote, and quotation marks 
omitted)); Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970) 
(``We are unable to understand why there should be any general 
principle forbidding an administrator, vested with discretionary 
power, to determine by appropriate rulemaking that he will not use 
it in favor of a particular class on a case-by-case basis * * * 
.'').
---------------------------------------------------------------------------

ii. Law Regarding the Categorical Approach
    Comment: Commenters asserted that the proposed rule violated the 
Supreme Court's longstanding categorical approach. Commenters stated 
that ``federal courts have repeatedly embraced the `categorical 
approach' to determine the immigration consequence(s) of a criminal 
offense, wherein the immigration adjudicator relies on the statute of 
conviction as adjudicated by the criminal court system, without 
relitigating the nature or circumstances of the offense in immigration 
court.'' Additionally, commenters noted that the Supreme Court has 
``long deemed undesirable'' a ``post hoc investigation into the facts 
of the predicate offenses.'' Moncrieffe v. Holder, 569 U.S. 184, 200 
(2013). Commenters argued that the proposed rule directly contravenes 
this directive to avoid post hoc investigations.
    Commenters emphasized that the categorical approach promotes 
fairness and due process, as well as judicial and administrative 
efficiency by avoiding ``pseudo-criminal trials.'' Citing Moncrieffe, 
commenters noted concern that if an immigration adjudicator were 
required to determine the nature and amount of remuneration involved 
in, for example, a marijuana-related conviction, the ``overburdened 
immigration courts'' would end up weighing evidence ``from, for 
example, the friend of a noncitizen'' or the ``local police officer who 
recalls to the contrary.'' Id. at 201. Commenters noted that this would 
result in a disparity of outcomes based on the presiding immigration 
judge and would further burden the immigration court system. Moreover, 
commenters noted that the Supreme Court has repeatedly applied the 
categorical approach and found that its virtues outweigh its 
shortcomings. Citing Mathis v. United States, 136 S. Ct. 2243, 2252-53 
(2016), commenters noted that the Supreme Court articulated basic 
reasons for adhering to the elements-only inquiry of the categorical 
approach, including ``serious Sixth Amendment concerns'' and 
``unfairness to defendants'' created by alternative approaches.
    Commenters asserted that the Departments' concern regarding the 
unpredictable results of the categorical approach is misleading because 
immigration adjudicators may already utilize a facts-based analysis to 
determine whether an offense is a ``particularly serious crime'' that 
would bar asylum. Commenters further alleged that the Departments 
recognized that this was a red herring by noting that the BIA has 
rectified some anomalies by determining that certain crimes, although 
not aggravated felonies, nonetheless constitute particularly serious 
crimes. See 84 FR at 69646.
    Commenters further noted that, even if an offense does not rise to 
the level of a particularly serious crime, immigration adjudicators may 
deny asylum as a matter of discretion. In addition, commenters averred 
that for gang-related and domestic violence offenses, the proposed rule 
undermined criminal judgments and violated due process because the 
proposed rule disregarded the established framework for determining 
whether a conviction is an aggravated felony. Rather than looking to 
the elements of the offense, as currently required by the categorical 
approach, commenters noted that the proposed rule required adjudicators 
to consider ``gang-related'' or ``domestic violence'' conduct that may 
not have been one of the required elements for a

[[Page 67209]]

conviction and therefore not objected to by the asylum applicant or his 
or her attorney during the criminal proceeding.
    Response: The Departments first note that the traditional elements-
to-elements categorical approach extolled by the commenters and as set 
out in Mathis by the Supreme Court is an interpretive tool frequently 
applied by the courts to determine the immigration-related or penal 
consequences of criminal convictions. Cf. Mathis, 136 S. Ct. at 2248 
(``To determine whether a prior conviction is for generic burglary (or 
other listed crime) courts apply what is known as the categorical 
approach * * * .''). However, this traditional categorical approach is 
not the only analytical tool blessed by the Supreme Court, and the 
exact analysis depends on the language of the statute at issue. For 
example, in Nijhawan v. Holder, 557 U.S. 29, 38 (2009), the Court held 
that the aggravated felony statute at section 101(a)(43) of the Act (8 
U.S.C. 1101(a)(43)) ``contains some language that refers to generic 
crimes and some language that almost certainly refers to the specific 
circumstances in which a crime was committed.'' Based on the language 
of section 101(a)(43)(M)(i) of the Act (8 U.S.C. 1101(a)(43)(M)(i)), 
the Supreme Court held that the INA required a ``circumstance-
specific'' analysis to determine whether an aggravated felony 
conviction for a fraud or deceit offense involved $10,000 or more under 
INA 101(a)(43)(M)(i) (8 U.S.C. 1101(a)(43)(M)(i)). Id. at 40. And in 
Mathis itself, the Supreme Court observed that the categorical approach 
is not the only permissible approach: Again relying on the language as 
written in a statute by Congress, the Supreme Court explained that 
``Congress well knows how to instruct sentencing judges to look into 
the facts of prior crimes: In other statutes, using different language, 
it has done just that.'' Mathis, 136 S. Ct. at 2252 (noting the 
determination in Nijhawan that a circumstance-specific approach applies 
when called for by Congress).
    Nevertheless, the Departments did not purport to end the use of the 
traditional categorical approach for determining asylum eligibility 
through the proposed rule. Instead, the Departments explained that the 
use of the categorical approach has created inconsistent adjudications 
and created inefficiencies through the required complexities of the 
analysis in immigration adjudications. See 84 FR at 69646-47. The 
Departments' concerns with the categorical approach are in line with 
those of an increasing number of Federal judges and others who are 
required to work within its confines. See, e.g., Lopez-Aguilar v. Barr, 
948 F.3d 1143, 1149 (9th Cir. 2020) (Graber, J., concurring) (``I write 
separately to add my voice to the substantial chorus of federal judges 
pleading for the Supreme Court or Congress to rescue us from the morass 
of the categorical approach. * * * The categorical approach requires us 
to perform absurd legal gymnastics, and it produces absurd results.''); 
see also Lowe v. United States, 920 F.3d 414, 420 (6th Cir. 2019) 
(Thapar, J., concurring) (``[I]n the categorical-approach world, we 
cannot call rape what it is. * * * [I]t is time for Congress to revisit 
the categorical approach so we do not have to live in a fictional world 
where we call a violent rape non-violent.'').
    As a result, the Departments proposed, for example, that an alien 
who has been convicted of ``[a]ny felony under Federal, State, tribal, 
or local law'' would be ineligible for asylum. See 8 CFR 
208.13(c)(6)(vi)(A), 1208.13(c)(6)(vi)(A) (proposed). This provision 
would not require an adjudicator to conduct a categorical analysis and 
compare the elements of the alien's statute of conviction with a 
generic offense. As explained in the NPRM, the Departments believe this 
will create a more streamlined and predictable approach that will 
increase efficiency in immigration adjudications. 84 FR at 69647. It 
will also increase predictability because it will be clear and 
straightforward which offenses will bar an individual from asylum.
    The Attorney General and the Secretary have the authority to place 
additional limitations on eligibility for asylum, provided that they 
are consistent with the rest of section 208 of the Act (8 U.S.C. 1158). 
INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)). There is no obligation that 
any criminal-based limitation implemented pursuant to this authority 
must correspond with a particular generic offense to which an 
adjudicator would compare the elements of the alien's offense using the 
categorical approach, particularly when not every criminal provision 
implemented by Congress itself requires such an analysis. See Nijhawan, 
557 U.S. at 36; see also United States v. Keene, 955 F.3d 391, 393 (4th 
Cir. 2020) (holding that Congress did not intend for the violent crimes 
in aid of racketeering activity statute (18 U.S.C. 1959) to require a 
categorical analysis because ``the statutory language * * * requires 
only that a defendant's conduct, presently before the court, constitute 
one of the enumerated federal offenses as well as the charged state 
crime'' (emphasis in original)). Additionally, prior case law 
interpreting and applying the categorical approach to determine whether 
a crime is particularly serious does not apply where, like here, the 
Departments are designating additional limitations on eligibility for 
asylum under the authority at section 208(b)(2)(C) of the Act (8 U.S.C. 
1158(b)(2)(C)).\8\
---------------------------------------------------------------------------

    \8\ The proposed rule preamble cited both the authority at 
section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) to 
designate offenses as particularly serious crimes and the authority 
at section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) to 
establish additional limitations on asylum eligibility in support of 
the inclusion of the new categories of bars in the proposed rule. 
See 84 FR at 69645-54. The regulatory text, however, does not 
actually designate any additional offenses as ``particularly serious 
crimes.'' The text instead aligns with section 208(b)(2)(C) by 
setting out ``[a]dditional limitations on asylum eligibility.'' See 
id. at 65659. Section 208(b)(2)(B)(ii) remains relevant to the 
current rule in that the new bars are ``consistent with'' the INA 
partly because they deny eligibility as a result of crimes or 
conduct that share certain characteristics with ``particularly 
serious crimes,'' but the Departments clarify that they are 
promulgating this rule under section 208(b)(2)(C). Further 
discussion of the interaction of the rule with the ``particularly 
serious crime'' bar is set out above in section II.C.2.a.i.
---------------------------------------------------------------------------

    Finally, the Departments expect immigration adjudicators to 
determine whether an alien is barred from asylum eligibility under the 
other provisions of the proposed rule due to the alien's conviction or 
conduct in keeping with case law. For example, in order to determine 
whether an alien's misdemeanor conviction is a conviction for an 
offense ``involving * * * the possession or trafficking of a controlled 
substance or controlled substance paraphernalia,'' the adjudicator 
would be required to review the specific elements of the underlying 
offense as required by the categorical approach. On the other hand, the 
inquiry into whether conduct is related to street-gang activity or 
domestic violence as promulgated by the rule is similar to statutory 
provisions that already require an inquiry into conduct-based 
allegations that may bar asylum but that do not require a categorical 
approach analysis. See INA 208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i)) 
(bar to asylum based on persecution of others); INA 240A(b)(2)(A) (8 
U.S.C. 1229b(b)(2)(A)) (immigration benefits for aliens who are 
battered or subjected to extreme cruelty).
iii. Law Regarding the Validity of Convictions
    Comment: Commenters also asserted that the proposed rule's 
establishment of criteria for determining whether a conviction or 
sentence is valid for immigration purposes exceeded the Act's statutory 
grant of authority, violated case law, and violated the Constitution. 
Broadly speaking,

[[Page 67210]]

commenters asserted that the NPRM is contrary to the intent of Congress 
because it attempts to ``rewrite immigration law.'' First, commenters 
asserted that the proposed rule violated the full faith and credit owed 
to State court decisions. Second, commenters asserted that the 
Departments misread and misinterpreted applicable case law in 
justifying the presumption against the validity of post-conviction 
relief. Third, commenters expressed concern with the rebuttable 
presumption against the validity of post-conviction relief in certain 
circumstances created by the proposed rule.
    Commenters expressed opposition to the NPRM's rebuttable 
presumption that an order vacating a conviction or modifying, 
clarifying, or otherwise altering a sentence is for the purpose of 
ameliorating the conviction's immigration consequences in certain 
circumstances, see 8 CFR 208.13(c)(8), 1208.13(c)(8) (proposed), 
because they alleged that it could violate principles of federalism 
under the Constitution's Full Faith and Credit Clause, U.S. Const. art. 
IV, sec. 1, as codified by the Full Faith and Credit Act, 28 U.S.C. 
1738. Commenters asserted that the proposed rule abandoned the 
presumption of regularity that should accompany State court orders. By 
precluding an adjudicator from considering a post-conviction order 
entered to cure substantive or procedural constitutional deficiencies, 
adjudicators are effectively given permission to second-guess State 
court decisions, which would undermine the authority of and attribute 
improper motives to State and Federal tribunals. Commenters alleged 
that, in this way, immigration judges would become fact-finders who 
look beyond State court records. Further, one commenter contended that 
the NPRM undermined local authority to ``evaluate the impact and 
consequences certain conduct should have on its residents by adding 
broad misdemeanor offenses as a bar to asylum relief,'' which the 
commenter asserted would interfere with a local authority's ``sovereign 
prerogative to shape its law enforcement policies to best account for 
its complex social and political realities.''
    Commenters averred that the Departments cited ``a misleading 
quote'' from Matter of F-, 8 I&N Dec. 251, 253 (BIA 1959), which would 
allow asylum adjudicators to look beyond the face of the State court 
order. See 84 FR at 69656. Commenters asserted that the Departments 
failed to read Matter of F- in its entirety and that, if they had, they 
would have noted that the BIA instead offered support in favor of 
presuming the validity of a State court order unless there is a reason 
to doubt it. Matter of F-, 8 I&N Dec. at 253 (``Not only the full faith 
and credit clause of the Federal Constitution, but familiar principles 
of law require the acceptance at face value of a judgment regularly 
granted by a competent court, unless a fatal defect is evident upon the 
judgment's face. However, the presumption of regularity and of 
jurisdiction may be overcome by extrinsic evidence or by the record 
itself.'').
    Additionally, commenters stated the proposed rule violates circuit 
courts of appeals case law holding that the BIA may not consider 
outside motives. Commenters cited Pickering v. Gonzales, 465 F.3d 263, 
267-70 (6th Cir. 2006), which held that the BIA was limited to 
reviewing the authority of the court issuing a vacatur and was not 
permitted to review outside motives, such as avoiding negative 
immigration consequences. Commenters also cited Reyes-Torres v. Holder, 
645 F.3d 1073, 1077-78 (9th Cir. 2011), and noted that the court held 
that the respondent's motive was not relevant to the immigration 
court's inquiry into whether the decision vacating his conviction was 
valid. Finally, commenters cited Rodriguez v. U.S. Attorney General, 
844 F.3d 392, 397 (3d Cir. 2006), which held that the immigration judge 
may rely only on ``reasons explicitly stated in the record and may not 
impute an unexpressed motive for vacating a conviction.'' Commenters 
asserted that, in direct contravention of these cases, the proposed 
rule grants ``vague and indefinite authority to look beyond a facially 
valid vacatur,'' which violates asylum seekers' rights to a full and 
fair proceeding.
    Commenters also asserted that the Departments improperly extended 
the decision in Matter of Thomas and Thompson, 27 I&N Dec. 674, to all 
forms of post-conviction relief. By extending this decision, commenters 
stated that the proposed rule imposes an ultra vires and unnecessary 
burden on asylum seekers. Commenters first asserted that the Attorney 
General's decision in Matter of Thomas and Thompson had no 
justification in the text or history of the Act. Specifically, 
commenters stated that the Act does not limit the authority of 
immigration judges by requiring them to consider only State court 
sentence modifications that are based on substantive or procedural 
defects in the underlying criminal proceedings. Rather, commenters 
asserted, the Act requires a ``convict[ion] by a final judgment.'' 
Commenters argued that, because a vacated judgment is neither ``final'' 
nor a ``judgment,'' it would have no effect on immigration proceedings. 
Commenters argued therefore that the Act does not permit immigration 
judges to treat a vacated judgment as valid and effective based on 
when, how, or why it was vacated. Moreover, commenters asserted that 
``[c]ourt orders are presumptively valid, not the other way around.''
    Commenters asserted that the BIA, in Matter of Cota-Vargas, 23 I&N 
Dec. 849, 852 (BIA 2005), overruled by Matter of Thomas and Thompson, 
27 I&N Dec. 674, relied on the text of the Act and the legislative 
history behind Congress's definition of ``conviction'' and ``sentence'' 
in section 101(a)(48) of the Act (8 U.S.C. 1101(a)(48)) to hold that 
proper admissions or findings of guilt were treated as convictions for 
immigration purposes, even if the conviction itself was later vacated. 
Commenters argued that, as a result, neither the text of the Act nor 
the legislative history supports the conclusion reached in Matter of 
Thomas and Thompson, and hence that the decision should not be extended 
to the proposed rule. Commenters stated that the same is true of orders 
modifying, clarifying, or altering a judgment or sentence, as 
recognized by the BIA in Matter of Cota-Vargas, 23 I&N Dec. at 852. 
Specifically, commenters quoted Matter of Cota-Vargas in noting that 
the NPRM's approach to ``sentence modifications has no discernible 
basis in the language of the Act.''
    Commenters also objected to the two situations in which the 
rebuttable presumption against the validity of an order modifying, 
clarifying, or altering a judgment or sentence arises: When a court 
enters a judgment or sentencing order after the asylum seeker is 
already in removal proceedings; or when the asylum seeker moves the 
court to modify, clarify, or alter a judgment or sentencing order more 
than one year after it was entered. Commenters cited the holding in 
Padilla v. Kentucky, 559 U.S. 356, 374 (2010), that noncitizen 
defendants have a Sixth Amendment right to be competently advised of 
immigration consequences before agreeing to a guilty plea. Commenters 
alleged that the presumption is unlawful under Padilla because it holds 
asylum applicants whose rights were violated under Padilla to a 
different standard. Commenters similarly asserted that the presumption 
would prejudice asylum seekers who have not had an opportunity to seek 
review of their criminal proceedings until applying for asylum. 
Commenters stated that asylum applicants would be forced to rebut the 
presumption that an order, entered after the asylum seeker was

[[Page 67211]]

placed in removal proceedings or requested more than one year after the 
date of conviction or sentence was entered, is invalid. In this way, 
commenters alleged, the NPRM would ``compound the harm to immigrants 
who * * * have been denied constitutionally compliant process in the 
United States criminal legal system.''
    One commenter asserted that some orders changing a sentence or 
conviction are entered after removal proceedings began because the 
alien had not received the constitutionally required advice regarding 
immigration consequences stemming from his or her criminal convictions. 
Other commenters explained that because criminal defendants oftentimes 
lack legal representation in post-conviction proceedings, they may have 
lacked knowledge of their constitutional rights or resources to 
challenge their convictions or related issues. Commenters also 
explained that asylum applicants may not have had reason to suspect 
defects in their criminal proceedings until they applied for asylum and 
met with an attorney. Commenters asserted that the NPRM would also harm 
those people if they realized these defects more than one year after 
their convictions were entered.
    Another commenter explained that ``state and federal sentencing 
courts should have more discretion to ameliorate the consequences of 
criminal convictions for a non-citizen's immigration proceedings. 
Collateral sanctions imposed on persons convicted of crimes--such as 
ineligibility to apply for relief from removal and other immigration 
consequences--should be subject to waiver, modification, or another 
form of relief if the sanctions are inappropriate or unfair in a 
particular case.''
    Response: The Attorney General and the Secretary are granted 
general authority to ``establish such regulations [as each determines 
to be] necessary for carrying out'' their authorities under the INA. 
INA 103(a)(1), (a)(3), and (g)(2) (8 U.S.C. 1103(a)(1), (a)(3), and 
(g)(2)); see also Tamenut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir. 
2008) (en banc) (per curiam) (describing INA 103(g)(2) (8 U.S.C. 
1103(g)(2)) as ``a general grant of regulatory authority''); cf. 
Narenji v. Civiletti, 617 F.2d 745, 747 (DC Cir. 1979) (``The [INA] 
need not specifically authorize each and every action taken by the 
Attorney General, so long as his action is reasonably related to the 
duties imposed upon him.''). As stated above, the Attorney General and 
the Secretary also have the congressionally provided authority to place 
additional limitations and conditions on eligibility for asylum, 
provided that they are consistent with section 208 of the Act (8 U.S.C. 
1158). INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)). Prescribing the 
effect to be given to vacated, expunged, or modified convictions or 
sentences is an ancillary aspect of prescribing additional limitations 
or conditions on asylum eligibility.
    As explained in the NPRM, the rule codifies the principle set forth 
in Matter of Thomas and Thompson, 27 I&N Dec. at 680, that, if the 
underlying reasons for the vacatur, expungement, or modification were 
for ``rehabilitation or immigration hardship,'' the conviction remains 
effective for immigration purposes. See 84 FR at 69655. Even before 
Matter of Thomas and Thompson was decided, courts of appeals repeatedly 
accepted the result reached in that case. See id.; see also Saleh v. 
Gonzales, 495 F.3d 17, 24 (2d Cir. 2007); Pinho v. Gonzales, 432 F.3d 
193, 215 (3d Cir. 2005). Therefore, the Departments reject commenters' 
assertions that the rule improperly relies on or extends Matter of 
Thomas and Thompson.\9\ In addition, the Departments note that agencies 
may decide whether to announce reinterpretations of a statute through 
rulemaking or through adjudication. Matter of Thomas and Thompson, 27 
I&N Dec. at 688 (citing, inter alia, NLRB v. Bell Aerospace Co., 416 
U.S. 267, 294 (1974)). In Matter of Thomas and Thompson, the Attorney 
General elected to address prior BIA precedent regarding the validity 
of modifications, clarifications, or other alterations through 
administrative adjudication. Id. at 689. That the Attorney General 
declined to consider additional issues on this topic through the 
administrative adjudication does not foreclose him from later 
promulgating additional interpretations or reinterpretations of the Act 
through rulemaking, as is being done in this final rule. See Bell 
Aerospace Co., 416 U.S. at 294.
---------------------------------------------------------------------------

    \9\ To the extent the commenters disagree with the substance of 
the Attorney General's decision in Matter of Thomas and Thompson, 
the Departments note that this rulemaking is not the mechanism for 
expressing such criticisms. The Attorney General has the authority 
to review administrative determinations in immigration proceedings, 
which includes the power to refer cases for review. INA 103(a)(1), 
(g) (8 U.S.C. 1103(a)(1), (g)); 8 CFR 1003.1(h)(1); see also Xian 
Tong Dong v. Holder, 696 F.3d 121, 124 (1st Cir. 2012) (the Attorney 
General is authorized to direct the BIA to refer cases to him for 
review and, given this authority, his decisions are entitled to 
Chevron deference). When the Attorney General certifies a case to 
himself, he has broad discretion to review the issues before him. 
See Matter of J-F-F-, 23 I&N Dec. 912, 913 (A.G. 2006).
---------------------------------------------------------------------------

    The Departments also reject commenters' claims that the approach 
set forth by the rule violates the Full Faith and Credit Clause, U.S. 
Const. art. IV, sec. 1, or the Full Faith and Credit Act, 28 U.S.C. 
1738. The Full Faith and Credit provisions of 28 U.S.C. 1738 apply to 
courts and not administrative agencies. See NLRB v. Yellow Freight 
Sys., Inc., 930 F.2d 316, 320 (3d Cir. 1991) (federal administrative 
agencies are not bound by section 1738 because they are not 
``courts''); see also Am. Airlines v. Dep't. of Transp., 202 F.3d 788, 
799 (5th Cir. 2000) (28 U.S.C. 1738 did not apply to the Department of 
Transportation because it is ``an agency, not a `court''').
    Moreover, as explained by the Second Circuit, and as reiterated by 
the Attorney General in Matter of Thomas and Thompson, when an 
immigration judge reviews a State conviction for an offense, the 
immigration judge is merely comparing the State conviction to the 
Federal definition of an offense under the Act. Saleh, 495 F.3d at 26 
(``[T]he BIA is simply interpreting how to apply Saleh's vacated State 
conviction for receiving stolen property to the INA and is not refusing 
to recognize or relitigating the validity of Saleh's California state 
conviction.''); Matter of Thomas and Thompson, 27 I&N Dec. at 688 
(``[T]he immigration judge in such a case simply determines the effect 
of that order for the purposes of federal immigration law.''). As a 
result, because the State court order remains effective and 
unchallenged for all other purposes, there is no intrusion on State law 
and no violation of the principles of federalism and comity. Matter of 
Thomas and Thompson, 27 I&N Dec. at 688.
    The Departments reject commenters' assertions that the NPRM 
improperly quotes Matter of F-, 8 I&N Dec. 251. The NPRM cites Matter 
of F- only to support the proposition that the alien must establish 
that a court issuing an order vacating or expunging a conviction or 
modifying a sentence had jurisdiction and authority to do so. 84 FR at 
69656. No law compels the Departments to accept State court orders 
entered without jurisdiction, and there is no sound public policy 
reason for doing so. Further, adopting such a policy would also 
potentially raise difficulties for the faithful and consistent 
administration of the immigration laws, as the Departments could be 
required to accept a State court judgment declaring an alien to be a 
United States citizen, even though a State court cannot confer or 
establish United States citizenship. Both

[[Page 67212]]

Matter of F- and the regulatory language simply restate the 
longstanding proposition that adjudicators in the Departments are not 
bound by judgments rendered by courts without jurisdiction, and even 
the full language noted by commenters from Matter of F- adheres to that 
proposition. Matter of F-, 8 I&N Dec. at 253 (explaining that, although 
``familiar principles of law require the acceptance at face value of a 
judgment regularly granted by a competent court,'' the ``presumption of 
regularity and of jurisdiction may be overcome by extrinsic evidence or 
by the record itself'').
    Commenters' statements that the Departments' interpretation of 
``conviction'' runs contrary to Congress's intent in defining the term 
are similarly misplaced. As explained by the Attorney General, in 
enacting section 101(a)(48) of the Act (8 U.S.C. 1101(a)(48)), Congress 
made clear that immigration consequences should flow from the original 
determination of guilt. Matter of Thomas and Thompson, 27 I&N Dec. at 
682 (describing subsequent case law analyzing Congress's intent in 
enacting a definition for conviction). To the extent that commenters 
relied on Matter of Cota-Vargas, 23 I&N Dec. 849, the Attorney General 
expressly overruled that decision and explained that Congress did 
intend to clarify the definition of ``conviction'' for immigration 
purposes. Matter of Thomas and Thompson, 27 I&N Dec. at 679, 682.
    Regarding commenters' concerns about the creation of a rebuttable 
presumption against the validity of an order modifying, clarifying, or 
altering a judgment or sentence, the Departments reiterate that this is 
merely a presumption. Individuals will be able to overcome the 
presumption by providing evidence that the modification, clarification, 
or vacatur was sought for genuine substantive or procedural reasons. As 
noted in the NPRM, the purpose of this presumption is to promote 
finality in immigration proceedings by encouraging individuals to 
pursue legitimate concerns regarding the validity of prior convictions. 
84 FR at 69656.
    The Departments disagree that creating a rebuttable presumption is 
unlawful under Padilla v. Kentucky, 559 U.S. 356. In Padilla, the 
Supreme Court held that noncitizen defendants have a Sixth Amendment 
right to be competently advised of immigration consequences before 
agreeing to a guilty plea. Id. at 374. The rule does not affect this 
right, and noncitizen defendants continue to retain this right in 
criminal proceedings. Moreover, if a noncitizen defendant is not 
properly apprised of the immigration consequences of a guilty plea, 
that individual continues to have the right to pursue the necessary 
action to address that error through the criminal justice system. 
Similarly, an individual whose Sixth Amendment rights were determined 
to have been violated in contravention of Padilla would be able to 
present this evidence in immigration proceedings and, if the evidence 
is sufficient, overcome the presumption that the individual was seeking 
a modification, clarification, or vacatur for immigration purposes.
    Regarding commenters' assertions that State and Federal sentencing 
courts should have more discretion to ameliorate the consequences of 
criminal convictions for a non-citizen's immigration proceedings, the 
Departments disagree. Administration and enforcement of the nation's 
immigration laws as written by Congress are entirely within the purview 
of the Executive Branch, specifically the Attorney General and the 
Secretary. See INA 103 (8 U.S.C. 1103). The Attorney General and the 
Secretary are granted discretion and authority to determine the manner 
in which to administer and enforce the immigration laws. Id. At the 
same time, this rule will not have any bearing on how States or other 
jurisdictions implement their criminal justice system because, as 
explained, any post-conviction relief remains valid for all other 
purposes.
b. Violation of International Law
    Comment: Numerous commenters alleged that the proposed rule 
violates the United States' obligations to protect refugees and asylum 
seekers under international law, including obligations flowing from the 
Protocol relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 
6223 (``the Protocol'' or ``the 1967 Protocol''), which incorporates 
Articles 2 to 34 of the 1951 Convention relating to the Status of 
Refugees, July 28, 1951, 19 U.S.T. 6233, 6259-76 (``the Refugee 
Convention''). Commenters stated that, by virtue of signing the 
Protocol, the United States is bound to create refugee laws that comply 
with the Protocol. Commenters asserted that the current laws, 
regulations, and processes governing asylum adjudications are already 
exceedingly harsh and are not compliant with international obligations. 
Commenters claimed that, rather than working to better align the United 
States with international obligations, the proposed rule's new 
categorical bars to asylum violate both the language and spirit of the 
Refugee Convention.
    Commenters speculated that the proposed rule will violate the 
principle of non-refoulement, as described in Article 33(1) of the 
Refugee Convention, which requires that ``[n]o contracting state shall 
expel or return (`refouler') a refugee in any manner whatsoever to the 
frontiers of territories where his life or freedom would be threatened 
on account of his race, religion, nationality, membership of a 
particular social group or political opinion.'' Commenters noted that, 
in considering non-refoulement, the United States is obligated to 
ensure a heightened consideration to children. Commenters also claimed 
that the exception to refugee protection contained in Article 33(2) of 
the Refugee Convention \10\ does not affect non-refoulement 
obligations. Commenters also outlined the United States' obligations to 
protect migrants, irrespective of migration status, as outlined in the 
Universal Declaration of Human Rights and other human rights 
instruments. Commenters stated that to comply with these protection 
obligations, the United States must respond to the protection needs of 
migrants, with a particular duty of care for migrants in vulnerable 
situations.
---------------------------------------------------------------------------

    \10\ Article 33(2) of the Refugee Conviction provides: ``The 
benefit of the present provision may not, however, be claimed by a 
refugee whom there are reasonable grounds for regarding as a danger 
to the security of the country in which he is, or who, having been 
convicted by a final judgment of a particularly serious crime, 
constitutes a danger to the community of that country.''
---------------------------------------------------------------------------

    Commenters also asserted that the proposed rule violates the United 
States' obligations under customary international law. These commenters 
cited Article III of the U.S. Constitution and Sosa v. Alvarez-Machain, 
542 U.S. 692, 729 (2004), in asserting that customary international law 
is recognized as and must be applied as U.S. law. Commenters stated 
that, unlike treaty law, customary international law cannot be 
derogated by later legislation and remains in full force at all times. 
Commenters claimed that even good faith efforts by States to change a 
rule are violations of customary international law until the rule has 
been changed by a consensus of States through opinio juris and state 
practice. Despite this summary of customary international law, these 
commenters did not specify how the proposed rule violates customary 
international law.
    Other commenters averred that the proposed rule violates 
international law by expanding the definition of a ``particularly 
serious crime'' beyond the parameters of the term as defined by the 
United Nations High Commissioner for

[[Page 67213]]

Refugees (``UNHCR'') by rendering nearly all criminal convictions bars 
to asylum. Commenters recognized that Article 33(2) of the Refugee 
Convention allows states to exclude or expel individuals from refugee 
protection if they have been ``convicted by a final judgment of a 
particularly serious crime'' and ``constitute[] a danger to the 
community of that country.'' However, commenters asserted that this 
clause is intended only for ``extreme cases,'' in which the 
particularly serious crime is a ``capital crime or a very grave 
punishable act.'' Commenters cited UNHCR's statement that the crime 
``must belong to the gravest category'' and that the individual must 
``become an extremely serious threat to the country of asylum due to 
the severity of crimes perpetrated by them in the country of asylum.'' 
Again citing UNHCR, commenters further asserted that this exception 
does not include less extreme crimes such as ``petty theft or the 
possession for personal use of illicit narcotic substances.''
    Commenters also expressed concern that the proposed rule's 
categorical bars do not allow for an individualized analysis as to 
whether an individual who has been convicted of a particularly serious 
crime also presents a danger to the community. Commenters noted that, 
in the proposed rule, the Departments cited the need for increased 
efficiency as a justification for creating these additional bars. 
However, commenters responded that an individualized determination is 
exactly what is required by the Refugee Convention. Specifically, 
commenters claimed that the Departments ignored UNHCR guidelines,\11\ 
which require not only a conviction for a particularly serious crime 
but also a determination that the individual constitutes a danger to 
the community of the country of refuge. Commenters averred that a 
conviction, without more, does not make an individual a present or 
future danger to the community. Commenters accordingly asserted that 
the Refugee Convention's ``particularly serious crime'' bar should 
apply only after a determination that an individual was convicted of a 
particularly serious crime and a separate assessment demonstrates that 
he or she is a present or future danger.
---------------------------------------------------------------------------

    \11\ Commenters cited paragraph 154 the UNHCR Handbook on 
Procedures and Criteria for Determining Refugee Status and 
Guidelines on International Protection Under the 1951 Convention and 
the 1967 Protocol Relating to the Status of Refugees.
---------------------------------------------------------------------------

    In addition, commenters alleged that the Act, in combination with 
subsequent agency interpretations, have already expanded the term 
``particularly serious crime'' far beyond its contemplated definition 
by creating the categorical ``particularly serious crime'' bar that 
incorporates the aggravated felony definition. Similarly, commenters 
stated that adjudicators already have overly broad discretion to deny 
asylum based on alleged criminal conduct. These commenters claimed that 
the proposed rule would cause the United States to further depart from 
its international obligations by creating additional bars without 
consideration of other factors, such as dangerousness. Commenters 
alleged that, in justifying the proposed rule, the Departments 
improperly cited the ``serious non-political crime'' bar that applies 
only to conduct that occurred outside the United States.
    In addition to these alleged violations of international law, 
commenters also asserted that the Departments' emphasis on the 
discretionary nature of asylum violates U.S. treaty obligations, 
congressional intent, and case law. Commenters noted that, although a 
refugee seeking protection in the United States does not always have a 
claim to mandatory protection, Congress's intent, in enacting the 
Refugee Act of 1980, Public Law 96-212, 94 Stat. 102 (``the Refugee 
Act''), was to expand the availability of refugee protection and bring 
the United States into compliance with its obligations under the 1967 
Protocol. Commenters alleged that the proposed rule does the opposite 
by providing seven categorical bars to asylum and, as a result, 
violates the spirit and intent of the Refugee Act.
    Commenters alleged that the Departments' reliance on the Attorney 
General's discretion to enact the proposed changes is ultra vires 
because the Attorney General, even in his discretion, may not violate 
domestic law, international treaties, or fundamental human rights. 
Specifically, commenters averred that the Attorney General's discretion 
is limited by the criteria in sections 208(b) and (d) of the Act (8 
U.S.C. 1158(b) and (d)) as well as the legislative history regarding 
these sections, which, according to the commenters, clearly incorporate 
international law and legal norms. Commenters stated, moreover, that 
where the United States is a party to a treaty, any decision to 
abrogate the treaty must be clearly expressed by Congress.
    One commenter expressed concern with the Departments' 
interpretation and reliance on Article 34 of the Refugee Convention, 
which provides that parties ``shall as far as possible facilitate the 
assimilation and naturalization of refugees.'' This commenter 
criticized the Departments' analysis regarding the availability of 
alternative relief for individuals barred from asylum under the 
proposed rule. Specifically, the commenter noted that, although Article 
34 requires the United States only to make efforts to naturalize 
refugees, not to naturalize all refugees, this does not mean that the 
United States then has the discretion to limit access to the asylum 
system in the first place.
    Response: As explained in the NPRM, this rule is consistent with 
the United States' obligations as a party to the 1967 Protocol, which 
incorporates Articles 2 through 34 of the 1951 Refugee Convention.\12\ 
This rule is also consistent with U.S. obligations under Article 3 of 
the CAT, as implemented in the immigration regulations pursuant to the 
implementing legislation.
---------------------------------------------------------------------------

    \12\ The Departments also note that neither of these treaties is 
self-executing, and that they are therefore not directly enforceable 
in U.S. law except to the extent that they have been implemented by 
domestic legislation. Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d 
Cir. 2005) (``The 1967 Protocol is not self-executing, nor does it 
confer any rights beyond those granted by implementing domestic 
legislation.''); Auguste v. Ridge, 395 F.3d 123, 132 (3d Cir. 2005) 
(CAT ``was not self-executing''); see also INS v. Stevic, 467 U.S. 
407, 428 n.22 (1984) (``Article 34 merely called on nations to 
facilitate the admission of refugees to the extent possible; the 
language of Article 34 was precatory and not self-executing.'').
---------------------------------------------------------------------------

    As an initial matter, the rule affects eligibility for asylum but 
does not place any additional limitations on statutory withholding of 
removal or protection under the CAT regulations. The United States 
implemented the non-refoulement provision of Article 33(1) of the 
Refugee Convention through the withholding of removal provision at 
section 241(b)(3) of the Act (8 U.S.C. 1231(b)(3)), and the non-
refoulement provision of Article 3 of the CAT through the CAT 
regulations, rather than through the asylum provisions at section 208 
of the Act (8 U.S.C. 1158). See INS v. Cardoza-Fonseca, 480 U.S. 421, 
429, 440-41 (1987); Matter of C-T-L-, 25 I&N Dec. 341 (BIA 2010) 
(applying section 241(b)(3)); see also Foreign Affairs Reform and 
Restructuring Act of 1998 (``FARRA''), Public Law 105-277, div. G, sec. 
2242, 112 Stat. 2681, 2631-822; 8 CFR 208.16 through 208.18; 1208.16 
through 1208.18. The Supreme Court has explained that asylum ``does not 
correspond to Article 33 of the Convention, but instead corresponds to 
Article 34,'' which provides that contracting States ```shall as far as 
possible facilitate the assimilation and naturalization of refugees.' 
'' Cardoza-Fonseca, 480 U.S. at 441. Article 34 ``is

[[Page 67214]]

precatory; it does not require the implementing authority actually to 
grant asylum to all those who are eligible.'' Id.
    Because the rule does not affect statutory withholding of removal 
or CAT protection, the proposed rule is consistent with the non-
refoulement provisions of the 1951 Refugee Convention, the 1967 
Protocol, and the CAT. See Matter of R-S-C-, 869 F.3d at 1188 & n.11 
(explaining that ``the Refugee Convention's non-refoulement principle--
which prohibits the deportation of aliens to countries where the alien 
will experience persecution--is given full effect by the Attorney 
General's withholding-only rule''); Cazun v. Att'y Gen. U.S., 856 F.3d 
249, 257 & n.16 (3d Cir. 2017); Ramirez-Mejia v. Lynch, 813 F.3d 240, 
241 (5th Cir. 2016); Maldonado v. Lynch, 786 F.3d 1155, 1162 (9th Cir. 
2015) (explaining that Article 3 of the CAT, which sets out the non-
refoulement obligations of parties, was implemented in the United 
States by FARRA and its implementing regulations).
    The rule does not affect the withholding of removal process or 
standards. INA 241(b)(3) (8 U.S.C. 1231(b)(3)); 8 CFR 208.16, 1208.16. 
An alien who can demonstrate that he or she would more likely than not 
face persecution on account of a protected ground or torture may 
qualify for statutory withholding of removal or CAT protection. 
Therefore, because individuals who may be barred from asylum by the 
rule remain eligible to seek statutory withholding of removal and CAT 
protection, the rule does not violate the principle of non-refoulement. 
Cf. Garcia v. Sessions, 856 F.3d 27, 40 (1st Cir. 2017) (discussing the 
distinction between asylum and withholding of removal and explaining 
that ``withholding of removal has long been understood to be a 
mandatory protection that must be given to certain qualifying aliens, 
while asylum has never been so understood'').
    Commenters asserted, without support, that the United States must 
respond to the needs of migrants to comply with the 1948 Universal 
Declaration of Human Rights. See Universal Declaration of Human Rights, 
G.A. Res. 217A (III), U.N. Doc. A/810 (1948) (``UDHR''). The UDHR is a 
non-binding human rights instrument, not an international agreement, 
and thus it does not impose legal obligations on the United States. 
Alvarez-Machain, 542 U.S. at 728, 734-35 (citing John P. Humphrey, The 
U.N. Charter and the Universal Declaration of Human Rights, in The 
International Protection of Human Rights 39, 50 (Evan Luard ed., 1967) 
(quoting Eleanor Roosevelt as stating that the Declaration is ```a 
statement of principles * * * setting up a common standard of 
achievement for all peoples and all nations' and `not a treaty or 
international agreement * * * impos[ing] legal obligations.' '')). In 
any case, although the UDHR proclaims the right of ``[e]veryone'' to 
``seek and to enjoy'' asylum, UDHR Art. 14(1), it does not purport to 
state specific standards for establishing asylum eligibility, and it 
certainly cannot be read to impose an obligation on the United States 
to grant asylum to ``everyone,'' see id., or to prevent the Attorney 
General and the Secretary from exercising their discretion granted by 
the INA, consistent with U.S. obligations under international law as 
implemented in domestic law. See UNHCR, Advisory Opinion on the 
Extraterritorial Application of Non-Refoulement Obligations Under the 
1951 Convention Relating to the Status of Refugees and its 1967 
Protocol 3 (Jan. 26, 2007), https://www.unhcr.org/4d9486929.pdf (``The 
principle of non-refoulement as provided for in Article 33(1) of the 
1951 Convention does not, as such, entail a right of the individual to 
be granted asylum in a particular State.''). The United States' overall 
response to the needs of migrants extends beyond the scope of this 
rulemaking.
    To the extent that commenters made blanket assertions that the rule 
violates customary international law or other international documents 
and statements of principles, the commenters ignore the fact that the 
rule leaves the requirements for an ultimate grant of statutory 
withholding of removal or CAT withholding or deferral of removal 
unchanged.
    As explained in additional detail in section II.C.2.a.i of this 
preamble, the rule did not designate additional particularly serious 
crimes in the regulatory text. Because the Departments have the 
independent authority for these changes under INA 208(b)(2)(C) (8 
U.S.C. 1158(b)(2)(C)), the Departments need not further respond to 
comments regarding the current ``particularly serious crime'' bar, as 
those comments extend beyond the scope of this rulemaking. 
Nevertheless, commenters' assertions that the proposed rule improperly 
and unlawfully expands the definition of ``particularly serious crime'' 
beyond the definition provided by UNHCR are misguided. UNHCR's 
interpretations of or recommendations regarding the Refugee Convention 
and the Protocol, such as set forth in the UNHCR Handbook on Procedures 
and Criteria for Determining Refugee Status Under the 1951 Convention 
and the 1967 Protocol Relating to the Status of Refugees (Geneva 1992) 
(reissued Feb. 2019), are ``not binding on the Attorney General, the 
BIA, or United States courts.'' INS v. Aguirre-Aguirre, 526 U.S. 415, 
427 (1999). ``Indeed, the Handbook itself disclaims such force, 
explaining that `the determination of refugee status under the 1951 
Convention and the 1967 Protocol * * * is incumbent upon the 
Contracting State in whose territory the refugee finds himself.' '' Id. 
at 427-28. To the extent such guidance ``may be a useful interpretative 
aid,'' id. at 427, it would apply to statutory withholding of removal--
which is the protection that implements Article 33 of the Convention--
and which, as discussed above, this rule does not affect.
    Commenters also relied on the advisory UNHCR Handbook to assert 
that an adjudicator must make an individualized assessment as to 
whether an asylum applicant presents or will present a danger to the 
community. Again, as noted above, the Departments clarify in section 
II.C.2.a.i that the rule did not designate additional particularly 
serious crimes in the regulatory text. Regardless, the Departments have 
longstanding authority under U.S. law to create asylum-related 
conditions without an individualized consideration of present or future 
danger to the community.\13\ For example, in 2000, Attorney General 
Janet Reno limited asylum eligibility pursuant to the authority at 
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) based on ``a 
fundamental change in circumstances'' or the ability of an alien to 
reasonably relocate within the alien's country of nationality or last 
habitual residence, even where that alien had established he or she had 
suffered past persecution. See Asylum Procedures, 65 FR 76121, 76133-36 
(Dec. 6, 2000) (adding 8 CFR 208.13(b)(1)(i)-(ii)). As outlined in the 
NPRM, the Attorney General and Congress have previously established 
several mandatory bars to asylum eligibility. 84 FR at 69641. The 
Departments note that the adjudicator must still make an individualized 
determination as to whether a given offense falls into the category of 
conduct

[[Page 67215]]

contemplated by an individual bar. Komarenko v. INS, 35 F.3d 432, 436 
(9th Cir. 1994) (upholding particularly serious crime bar), abrogated 
on other grounds by Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009). In 
addition, as explained above, the UNHCR Handbook is not binding on the 
Attorney General, the BIA, or United States courts, although it ``may 
be a useful interpretative aid.'' Aguirre-Aguirre, 526 U.S. at 427.
---------------------------------------------------------------------------

    \13\ In addition, even if this rulemaking did enact regulatory 
provisions requiring an interpretation of particularly serious 
crimes, U.S. law has long held that, once an alien is found to have 
been convicted of a particularly serious crime, there is no need for 
a separate determination whether he or she is a danger to the 
community. See Matter of N-A-M-, 24 I&N Dec. 336, 343 (BIA 2007), 
aff'd, N-A-M- v. Holder, 587 F.3d 1052 (10th Cir. 2009), cert. 
denied, 562 U.S. 1141 (2011); Matter of Q-T-M-T-, 21 I&N Dec. 639, 
646-47 (BIA 1996); Matter of K-, 20 I&N Dec. 418, 423-24 (BIA 1991); 
Matter of Carballe, 19 I&N Dec. 357, 360 (BIA 1986).
---------------------------------------------------------------------------

    The Departments disagree with commenters' assertions that, by 
relying on the discretionary nature of asylum, the rule violates U.S. 
treaty obligations, congressional intent, and case law. As explained 
above, because the rule does not alter eligibility for withholding of 
removal or CAT protection, the rule does not violate U.S. treaty 
obligations and ensures continued compliance with U.S. non-refoulement 
obligations. Additionally, Congress's intent in enacting the Refugee 
Act was ``a desire to revise and regularize the procedures governing 
the admission of refugees into the United States.'' Stevic, 467 U.S. at 
425. Rather than expanding the availability of refugee protection, as 
asserted by commenters, the Refugee Act's definition of refugee does 
``not create a new and expanded means of entry, but instead regularizes 
and formalizes the policies and practices that have been followed in 
recent years.'' Id. at 426 (quoting H.R. Rep. No. 96-608, at 10 
(1979)). Moreover, case law supports the Attorney General's authority 
under U.S. law to limit asylum. See Yang v. INS, 79 F.3d 932, 936-39 
(9th Cir. 1996) (upholding regulatory implementation of the firm 
resettlement bar); see also Komarenko, 35 F.3d at 436 (upholding 
regulatory implementation of the ``particularly serious crime'' bar).
    Regarding the Attorney General's and the Secretary's discretion to 
enact the rule, the Departments disagree that the rule is ultra vires 
because, as explained above, Congress has granted the Attorney General 
and the Secretary the authority to limit eligibility for asylum. See 
INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)). Moreover, the rule does not 
violate applicable obligations under domestic law or international 
treaties for the reasons discussed above.
3. Concerns With Categorical Bars
    In addition to comments generally opposing the seven bars proposed 
by the NPRM, commenters also raised concerns related to specific bars.
a. Felonies
    Comment: Commenters opposed the proposed limitation on asylum 
eligibility for individuals who have been convicted of any felony under 
Federal, State, tribal, or local law. See 8 CFR 208.13(c)(6)(vi)(A), 
1208.13(c)(6)(vi)(A) (proposed). Commenters generally stated that the 
proposed limitation was overbroad and that the Departments failed to 
support their stated position that offenses carrying potential 
sentences of more than one year correlate to recidivism and 
dangerousness. Commenters asserted that the proposed limitation would 
``sweep in'' minor conduct, including some State misdemeanors.
    Commenters also opposed the Departments' proposed definition of the 
term ``felony,'' see 8 CFR 208.13(c)(7)(i), 1208.13(c)(7)(i) 
(proposed), as any crime defined as a felony by the relevant 
jurisdiction of conviction, or any crime punishable by more than one 
year imprisonment. Commenters objected to both portions of the proposed 
definition.
    Specifically, commenters opposed the definition's reliance on the 
maximum possible sentence of an offense over the actual sentence 
imposed. Commenters opposed the Departments' reasoning for that 
determination. See 84 FR at 69646 (``[T]he sentence actually imposed 
often depends on factors such as offender characteristics that may 
operate to reduce a sentence but do not diminish the gravity of the 
crime.'' (alteration and quotation marks omitted)). Commenters stated 
that imposing a sentence requires careful consideration of numerous 
factors, including any mitigating circumstances, and that the proposed 
definition dismissed careful sentencing considerations by prosecutors 
and criminal sentencing courts, which are charged with considering 
public safety. Commenters stated that the actual sentence imposed is a 
more faithful and accurate measure of whether an individual's conduct 
was ``particularly serious'' and that not every offense that would be a 
felony under the proposed definition is or should be considered a 
``particularly serious crime.'' Commenters also stated that not every 
alien convicted of a crime that is punishable by more than one year of 
imprisonment is a danger to the community who should be barred from 
asylum eligibility.
    Commenters also opposed the proposal that the definition of felony 
include any offense that is labeled as a felony in its respective 
jurisdiction, regardless of the maximum term of imprisonment or other 
factors. Commenters stated that, with certain types of offenses, the 
difference between misdemeanors and felonies does not necessarily 
involve aggravated conduct or heightened risk to the public but rather 
factual elements, such as the alleged dollar value of a stolen good. 
Accordingly, commenters stated, it would be inappropriate to 
categorically bar eligibility for asylum on this basis.
    Commenters asserted that a categorical bar against all felonies, as 
defined by the NPRM, would result in drastic inconsistencies and unfair 
results and would undermine the Departments' stated goal of uniformity 
and consistency. Commenters stated that the proposed definition would 
improperly treat a broad range of offenses as equally severe. 
Additionally, commenters stated, a broad range of criminal conduct 
encompassing varying degrees of severity or dangerousness could be 
charged under the same disqualifying offense.
    At the same time, commenters suggested that identical conduct in 
different States (or other jurisdictions) would have different 
consequences on eligibility for asylum, depending on whether the 
jurisdiction labeled the crime as a felony or set a maximum penalty of 
over one year of imprisonment. As an example, one commenter asserted 
that felony theft threshold amounts among the States vary considerably, 
ranging from $200 to $2,500 or more, but noted that the proposed rule 
would treat these varying offenses equally under the proposed 
definition. The commenter stated that the definition was overbroad and 
did not exercise the ``special caution'' that should be taken with 
asylum cases given the high stakes involved. Other commenters stated 
that the desire for consistency should not be elevated over 
``legitimate concerns of fairness and accurate assessments of 
dangerousness.''
    One commenter opined that the proposed limitation would ignore the 
federalist nature of the U.S. criminal justice system, where each State 
has its own criminal code and makes individual determinations about 
which conduct should be criminalized, and how.
    Commenters stated that the ``harsh inequities'' created by the rule 
would dissuade aliens who are fleeing persecution to plead guilty to 
misdemeanor charges that could carry a one-year sentence, even if the 
plea agreement would not include any incarceration, which could in turn 
have a host of unintended collateral consequences in the criminal 
justice system. Numerous commenters offered specific examples of State 
laws that they asserted would improperly be considered disqualifying 
offenses under the proposed limitation and accompanying definition. For 
example,

[[Page 67216]]

commenters stated that some States, such as Massachusetts, define 
misdemeanors, which may carry a sentence of one year or more in a 
``house of correction,'' much more broadly than many other States. 
Commenters also listed statutes from New York,\14\ Maryland,\15\ and 
several other States that they believed should not qualify as a basis 
for limiting eligibility to asylum.
---------------------------------------------------------------------------

    \14\ See N.Y.P.L. 145.05. (criminalizing the causing of $250 
worth of property damage); N.Y.P.L. 275.34 (criminalizing the 
recording of a movie in a theater two times); N.Y.P.L. 220.06 
(criminalizing simple possession of more than half an ounce of a 
narcotic).
    \15\ See MD. CODE, ALCO. BEV. 6-307; MD. CODE, ALCO. BEV. 6-402 
(criminalizing the sale of alcohol to a visibly intoxicated person 
with a sentence of up to two years); MD. CODE, CRIM. LAW 3-804 
(criminalizing the use of a telephone to make a single anonymous 
phone call to annoy or embarrass another person with a sentence of 
up to three years); MD. CODE, CRIM. LAW 4-101 (criminalizing the 
simple possession of a ``dangerous weapon,'' including a utility 
knife, on one's person, with a sentence of up to three years); MD. 
CODE, CRIM. LAW 6-105 (criminalizing the burning of property under 
$1,000 with a sentence of up to 18 months); MD. CODE, CRIM. LAW 6-
205 (criminalizing the unauthorized entry into a dwelling with a 
sentence of up to three years); MD. CODE, CRIM. LAW 7-203 
(criminalizing the temporary use of another person's vehicle without 
his or her consent (i.e., ``joyriding'') with a sentence of up to 
four years); MD. CODE, TAX-GEN. 13-1015 (criminalizing the import, 
sale or transportation of unstamped cigarettes within the state of 
Maryland with a sentence of up to two years).
---------------------------------------------------------------------------

    Response: The Departments disagree with commenters' opposition to 
the inclusion of any felony conviction as a bar to asylum eligibility 
and to the corresponding proposed definition of ``felony'' for the 
purposes of determining whether the bar applies. As an initial matter, 
to the extent commenters expressed concern that the inclusion of any 
felony is an inaccurate measure of whether an individual's conduct was 
``particularly serious'' or that not every offense that would be a 
felony under the proposed definition is or should be considered a 
``particularly serious crime,'' the Departments need not address these 
concerns in detail because this rule, like the proposed rule, 
designates these offenses as additional limitations on asylum 
eligibility pursuant to INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)).\16\ 
See 8 CFR 208.13(c)(6), 1208.13(c)(6).
---------------------------------------------------------------------------

    \16\ The proposed rule's preamble cited both the authority at 
section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) to 
designate offenses as particularly serious crimes and the authority 
at section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) to 
establish additional limitations on asylum eligibility in support of 
the designation of all felonies as bars to asylum eligibility. 
Compare 84 FR at 69645 (explaining that the Attorney General and the 
Secretary could reasonably exercise their discretion to ``classify 
felony offenses as particularly serious crimes for purposes of 8 
U.S.C. 1158(b)(2)(B)(ii)''), with id. at 69647 (explaining that, in 
addition to their authority under section 208(b)(2)(C), ``the 
Attorney General and the Secretary ``further propose relying on 
their respective authorities under section 208(b)(2)(C) of the INA, 
8 U.S.C. 1158(b)(2)(C), to make all felony convictions disqualifying 
for purposes of asylum eligibility''). The regulatory text, however, 
does not actually designate any additional offenses as 
``particularly serious crimes.'' Instead, the discussion of 
particularly serious crimes helps illustrate how issuing the new 
bars pursuant to section 208(b)(2)(C) is ``consistent with'' the 
rest of the INA because the new bars--similar to the ``particularly 
serious crime'' bar--exclude from eligibility those aliens whose 
conduct demonstrates that they are dangerous to the United States or 
otherwise do not merit eligibility for asylum. Further discussion of 
the interaction of the rule with the ``particularly serious crime'' 
bar is set out above in section II.C.2.a.i.
---------------------------------------------------------------------------

    As explained above, the Departments reiterate the explanation in 
the NPRM that the inclusion of any felony conviction as a bar to asylum 
eligibility is intended to avoid inconsistencies, inefficiencies, and 
anomalous results that often follow from the application of the 
categorical approach. 84 FR at 69645-46. In addition, the felony 
limitation on eligibility for asylum is consistent with other losses of 
benefits for felony convictions. See 84 FR at 69647 (explaining that 
treating a felony conviction as disqualifying for purposes of obtaining 
the discretionary benefit of asylum would be consistent with the 
disabilities arising from felony convictions in other contexts and 
would reflect the ``serious social costs of such crimes'').
    The Departments disagree with commenters' concerns that the felony 
limitation and related definition of ``felony'' would result in drastic 
inconsistencies and unfair results, undermining the stated purpose of 
the rule. As described in the NPRM, the existing reliance on the 
categorical approach to determine the immigration consequences of 
convictions has far too often resulted in seemingly inconsistent or 
anomalous results. 84 FR at 69645-46.\17\ The rule will significantly 
help to curtail inconsistencies and confusion over what offenses may be 
disqualifying for purposes of asylum, as all aliens who have been 
convicted of the same level of offense will receive the same treatment 
during asylum proceedings.
---------------------------------------------------------------------------

    \17\ Further discussion of the problems with the categorical 
approach is set out above in section II.C.2.a.ii.
---------------------------------------------------------------------------

    The Departments understand that the States have different criminal 
codes with different definitions of crimes, levels of offense, and 
other differences. With respect to commenters' federalism concerns, 
Congress has plenary authority over aliens, and that authority has been 
delegated the Departments. See Zadvydas v. Davis, 533 U.S. 678, 695 
(2001) (citing INS v. Chadha, 462 U.S. 919, 941-42 (1983), for the 
proposition that Congress must choose ``a constitutionally permissible 
means of implementing'' that power); INA 208(b)(2)(C), (d)(5)(B) (8 
U.S.C. 1158(b)(2)(C), (d)(5)(B)). Additionally, as stated in the NPRM 
and above in section II.C.2.A.ii, the categorical approach is overly 
complex, leads to inconsistent treatment of aliens who have been 
convicted of serious criminal offenses, and presents a strain on 
judicial and administrative resources. Although some aliens who have 
been convicted of serious criminal offenses are appropriately barred 
from discretionary benefits under the Act, such as asylum, others are 
not. See, e.g., Lowe, 920 F.3d at 420 (Thapar, J., concurring) (``[I]n 
the categorical-approach world, we cannot call rape what it is. * * * 
[I]t is time for Congress to revisit the categorical approach so we do 
not have to live in a fictional world where we call a violent rape non-
violent.''). This rule will provide certainty by establishing a bright-
line rule that is both easy to understand and will apply uniformly to 
all applicants who have been convicted of felonies, which the 
Departments believe to be significant offenses. Aliens are being given 
advance notice through the NPRM, which was published on December 19, 
2019, 84 FR at 69646, and by this publication of the final rule, that 
any felony conviction will be a bar to eligibility for the 
discretionary benefit of asylum. Cf. 8 CFR 208.3(c)(6)(vi)(A), 8 CFR 
1208.3(c)(6)(vi)(A) (proposed) (barring aliens who have been convicted 
of felonies ``on or after [the effective] date'').
    The Departments disagree that the proposed definition of ``felony'' 
implicates federalism concerns by defining the term ``felony,'' as it 
is to be used in this context, differently from States' (or other 
jurisdictions') definitions of felonies. In fact, the Departments 
believe that the felony definition is consistent with principles of 
federalism by primarily deferring to each State's choice of what 
offenses to define as felonies. Similarly, the alternative definition 
capturing any crime punishable by more than one year of imprisonment is 
consistent with the Federal definition and many States' definitions of 
``felony.'' See, e.g., 18 U.S.C. 3559 (defining ``felonies'' as 
offenses with a maximum term of imprisonment of more than one year); 1 
Wharton's Criminal Law Sec.  19 & n.23 (15th ed.) (surveying State 
laws).
    Congress has delegated to the Departments, not the States or other 
jurisdictions, the authority to set additional limitations on 
eligibility for

[[Page 67217]]

asylum, and the Departments have reasonably determined that the 
offenses encompassed within the definition should be disqualifying 
offenses. This rule will not have any direct bearing on how States or 
other jurisdictions implement their criminal justice system.
    With respect to commenters' concerns that the rule will affect how 
and when aliens enter into plea deals for criminal offenses, such 
pleadings take place during criminal proceedings, not immigration 
proceedings. Although asylum adjudications may rely on the information 
derived from criminal proceedings, the Departments believe that any 
effects that the rule might have outside of the immigration context are 
beyond the context of this rulemaking. Cf. San Francisco v. USCIS, 944 
F.3d 773, 804 (9th Cir. 2019) (``Any effects [of a DHS rule] on 
[healthcare] entities are indirect and well beyond DHS's charge and 
expertise.''). Additionally, the Departments believe that this rule 
would actually provide more clarity in the pleading process because the 
rule sets forth straightforward guidelines about what offenses would 
and would not be disqualifying offenses for purposes of asylum. In 
turn, criminal defense attorneys will be better able to advise their 
clients on the predictable immigration consequences of a conviction. 
Cf. Padilla, 559 U.S. at 357 (``There will, however, undoubtedly be 
numerous situations in which the deportation consequences of a plea are 
unclear. In those cases, a criminal defense attorney need do no more 
than advise a noncitizen client that pending criminal charges may carry 
adverse immigration consequences. But when the deportation consequence 
is truly clear, as it was here, the duty to give correct advice is 
equally clear.'').
    Second, regarding the commenters' concerns with the definition for 
the term ``felony,'' see 8 CFR 208.13(c)(7)(i), 1208.13(c)(7)(i) 
(proposed), the Departments disagree that the definition should look to 
the actual sentence imposed instead of the maximum possible sentence. 
As noted in the NPRM, consideration of an offense's maximum possible 
sentence is generally consistent with the way other Federal laws define 
felonies. See 84 FR at 69646; see also, e.g., 5 U.S.C. 7313(b) (``For 
the purposes of this section, `felony' means any offense for which 
imprisonment is authorized for a term exceeding one year.''); cf. 
U.S.S.G. 2L1.2 cmt. n.2 (```Felony' means any federal, state, or local 
offense punishable by imprisonment for a term exceeding one year.''). 
The Model Penal Code and most States likewise define a felony as a 
crime with a possible sentence in ``excess of one year.'' Model Penal 
Code Sec.  1.04(2); see also 1 Wharton's Criminal Law Sec.  19 & n.23 
(15th ed.) (surveying State laws).
    In addition, as recognized by the commenters, sentencing courts and 
prosecutors consider a number of factors when imposing a sentence, many 
of which have no bearing on the seriousness of the crime committed. 
Specifically, in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), the BIA 
explained that the sentence imposed might be based on conduct 
``subsequent and unrelated to the commission of the offense, such as 
cooperation with law enforcement authorities,'' or ``offender 
characteristics.'' Id. at 343 (determining that the respondent had been 
convicted of a particularly serious crime even where no term of 
imprisonment was imposed); see also Holloway v. Att'y Gen. U.S., 948 
F.3d 164, 175 (3d Cir. 2020) (``[T]he maximum penalty that may be 
imposed often reveals how the legislature views an offense. Put 
succinctly, the maximum possible punishment is certainly probative of a 
misdemeanor's seriousness.'' (footnote and internal quotation marks 
omitted)). Such considerations are necessarily unrelated to the 
seriousness of the actual crime, and the sentence imposed is ``not the 
most accurate or salient factor to consider in determining the 
seriousness of an offense.'' Matter of N-A-M-, 24 I&N Dec. at 343; see 
also Holloway, 948 F.3d at 175 n.12 (stating that the penalty imposed 
may be more reflective of how a sentencing judge viewed an offender 
than the offense itself).
    The Departments therefore reject recommendations to consider the 
sentence imposed when determining whether a conviction is a felony, as 
opposed to the NPRM's proposal to consider the maximum possible 
sentence associated with a given offense. The Departments are persuaded 
by the reasoning of the U.S. Court of Appeals for the Third Circuit, 
which recognized that, in cases where the analysis centers around an 
offense, and not the offender (as in the ``particularly serious crime'' 
analysis), ``the maximum punishment is a more appropriate data point 
because it provides insight into how a state legislature views a 
crime--not how a sentencing judge views an individual.'' Holloway, 948 
F.3d at 175 n.12. Thus, the Departments continue to believe that 
lengthier maximum sentences are associated with more serious offenses 
that appropriately should have consequences when determining asylum 
eligibility. 84 FR at 69646.
    Furthermore, as noted above, the Departments are acting within 
their designated authority pursuant to section 208(b)(2)(C) of the Act 
(8 U.S.C. 1158(b)(2)(C)) (authority to establish additional limitations 
and conditions on eligibility for asylum) to designate felonies, as 
defined in the rule, as disqualifying offenses for purposes of asylum 
eligibility. See section II.C.2.a.i. Assuming, arguendo, that the 
commenters are correct that felonies as defined by the final rule do 
not necessarily reflect an alien's dangerousness, the Departments' 
authority to set forth additional limitations and conditions on asylum 
eligibility under this provision requires only that such conditions and 
limitations be consistent with section 208 of the Act (8 U.S.C. 1158). 
See INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)) (``The Attorney General 
may by regulation establish additional limitations and conditions, 
consistent with this section, under which an alien shall be ineligible 
for asylum under paragraph (1).''). Unlike the designation of 
particularly serious crimes, there is no requirement that the aliens 
subject to these additional conditions or limitations first meet a 
particular dangerousness threshold. Compare id., with INA 
208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)), and INA 208(b)(2)(A)(ii) 
(8 U.S.C. 1158(b)(2)(A)(ii)) (providing that ``[t]he Attorney General 
may designate by regulation offenses'' for which an alien would be 
considered ``a danger to the community of the United States'' by virtue 
of having been convicted of a ``particularly serious crime''). Instead, 
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C) confers broad 
discretion on the Attorney General and the Secretary to establish a 
wide range of conditions on asylum eligibility, and the designation of 
felonies as defined in the rule as an additional limitation on asylum 
eligibility is consistent with the rest of the statutory scheme. For 
example, Congress's inclusion of other crime-based bars on eligibility 
demonstrates the intent to allow the Attorney General and Secretary to 
exercise the congressionally provided authority to designate additional 
types of criminal offenses or related behavior as bars to asylum 
eligibility. See INA 208(b)(2)(A)(ii), (iii) (particularly serious 
crime and serious nonpolitical crime) (8 U.S.C. 1158(b)(2)(A)(ii), 
(iii)). Indeed, by expressly including ``serious nonpolitical crimes'' 
as a statutory basis for ineligibility, Congress indicated that 
``particularly serious crimes'' need not be the only crime-based bar on 
asylum

[[Page 67218]]

eligibility. And by further excluding from eligibility aliens who 
engage in certain harmful conduct, regardless of whether those aliens 
pose a danger to the United States, see INA 208(b)(2)(A)(i) (persecutor 
bar) (8 U.S.C. 1158(b)(2)(A)(i)), Congress indicated that 
``dangerousness'' need not be the only criterion by which eligibility 
for asylum is to be determined.
b. Alien Smuggling or Harboring
    Comment: Commenters raised several concerns with respect to the 
NPRM's proposed bar to asylum eligibility for aliens convicted of 
harboring or smuggling offenses under sections 274(a)(1)(A) and (a)(2) 
of the Act (8 U.S.C. 1324(a)(1)(A), (a)(2)). See 8 CFR 208.13(c)(6)(i), 
1208.13(c)(6)(i) (proposed).
    First, commenters asserted that the NPRM improperly broadened the 
existing statutory bar to asylum for many individuals who have been 
convicted of alien smuggling or harboring under sections 274(a)(1)(A) 
and (a)(2) of the Act (8 U.S.C. 1324(a)(1)(A), (a)(2)). Specifically, 
commenters noted that such convictions already constitute aggravated 
felonies under the Act that would bar an alien from eligibility for 
asylum,\18\ ``except in the case of a first offense for which the alien 
has affirmatively shown that the alien committed the offense for the 
purpose of assisting, abetting, or aiding only the alien's spouse, 
child, or parent (and no other individual).'' See INA 101(a)(43)(N) (8 
U.S.C. 1101(a)(43)(N)). Commenters opposed the NPRM, asserting that it 
improperly proposed removing the limited exception to this bar and 
imposing a blanket bar against anybody convicted of such an offense. 
Commenters asserted that adjudicators should have the discretion to 
decide whether individuals convicted of such offenses, who are not 
already statutorily precluded because their convictions are not 
considered aggravated felonies, should be barred from asylum.
---------------------------------------------------------------------------

    \18\ A conviction for an aggravated felony is automatically 
considered a conviction for a particularly serious crime that would 
bar an alien from asylum eligibility under section 208(b)(2)(A)(ii) 
of the Act (8 U.S.C. 1158(b)(2)(A)(ii)). INA 208(b)(2)(B)(i) (8 
U.S.C. 1158(b)(2)(B)(i)).
---------------------------------------------------------------------------

    Commenters also asserted that the proposed limitation undermined 
congressional intent. Specifically, commenters stated that Congress 
intended to make asylum available to those present in the United 
States, without regard to how they entered, and would not have intended 
to bar from asylum first-time offenders who were convicted for helping 
their family members escape persecution. See INA 208(a)(1) (8 U.S.C. 
1158(a)(1)) (providing that an alien ``who arrives in the United States 
(whether or not at a designated port of arrival * * *)'' may apply for 
asylum in accordance with the rest of the section). Commenters stated 
that this congressional intent is demonstrated by the fact that 
Congress did not consider such offenses to be aggravated felonies and 
thus, in turn, particularly serious crimes that would bar asylum 
eligibility.
    Commenters also asserted that the proposed limitation undermined 
UNHCR's recognition that aliens must sometimes commit crimes ``as a 
means of, or concomitant with, escape from the country where 
persecution was feared,'' and that the fear of persecution should be 
considered a mitigating factor when considering such convictions. 
However, the commenters did not elaborate on how this assertion 
pertains to aliens who commit crimes concomitant with another person's 
escape from a country where persecution may be feared.
    Commenters asserted that the Departments failed to properly explain 
how all smuggling and harboring convictions under section 274 of the 
Act (8 U.S.C. 1324) reflected a danger to the community that should 
result in a categorical bar to asylum.
    Numerous commenters stated that they opposed the proposed 
limitation because it unfairly penalized asylum seekers for helping 
their family members, such as minor children and spouses, to come to 
the United States for any reason, including to escape from persecutors, 
traffickers, or abusers. Commenters stated that the proposed bar would 
force family members to choose between their loved ones remaining in 
danger in their countries of origin and themselves or their family 
being barred from asylum and returned to their persecutors. At least 
one commenter stated that the Departments illogically concluded that 
the hazard posed to a child or spouse being smuggled is greater than 
the harm the same child or spouse would face in the country of origin.
    At least one commenter suggested that children in particular would 
be harmed by the proposed bar because children are often derivatives on 
their parents' asylum application and may have nobody else to care for 
them in the United States if their parents are deported. Commenters 
also stated that asylum seekers often travel to the United States in 
family units and that some types of persecution are ``familial by 
nature, culture, and law.'' Commenters suggested that the proposed 
limitation would undermine the sanctity of the family and eliminate 
family reunification options, which would result in permanent 
separation of families.
    Commenters asserted that survivors of domestic violence who are 
forced to flee to the United States without their children should not 
be barred from asylum for trying to later reunite the family.
    Commenters also objected to the Departments' assertion that 
families could present themselves at the United States border, stating 
that this may not be possible due to recently implemented policies and 
regulations. Some commenters asserted that the proposed bar ``is 
particularly insidious'' in light of documents \19\ that they claimed 
revealed efforts to utilize smuggling prosecutions against parents and 
caregivers as part of a strategy to deter families from seeking asylum 
in the United States and that the NPRM proposed an expansion of those 
efforts.
---------------------------------------------------------------------------

    \19\ Commenters cited Ryan Devereaux, Documents Detail ICE 
Campaign to Prosecute Migrant Parents as Smugglers, The Intercept 
(Apr. 29, 2019), https://theintercept.com/2019/04/29/ice-documents-prosecute-migrant-parents-smugglers/ (describing how, in May 2017, 
DHS allegedly set out to target parents and family members of 
unaccompanied minors for prosecution).
---------------------------------------------------------------------------

    At least one commenter stated that the proposed bar, in addition to 
the above-described policies, would harm good Samaritans who provide 
humanitarian aid to migrants traversing deserts with harsh conditions. 
At least one commenter expressed concerns that existing prohibitions 
against harboring, which include ``transportation,'' could be applied 
to punish those who engage in routine conduct like driving someone to 
work or to a doctor's appointment. See INA 274(a)(1)(A)(iii) (8 U.S.C. 
1324(a)(1)(A)(iii)) (establishing criminal penalties for an individual 
who ``conceals, harbors, or shields from detection [or attempts to do 
so], [an] alien in any place, including * * * any means of 
transportation'').
    Commenters also generally asserted that the proposed limitation 
would multiply the harms that asylum seekers face in coming to the 
United States.
    Response: The Departments disagree with comments suggesting that 
the additional limitation on eligibility for asylum for aliens who have 
been convicted of bringing in or harboring certain aliens pursuant to 
sections 274(a)(1)(A), (2) of the Act (8 U.S.C. 1324(a)(1)(A), (2)) is 
inappropriate or unlawful.
    The Departments reject commenters' concerns that the additional 
limitation is an unlawful expansion of existing bars to asylum 
eligibility set forth at

[[Page 67219]]

section 101(a)(43)(N) of the Act (8 U.S.C. 1101(a)(43)(N)). It is 
within the Departments' delegated authority to set forth additional 
limitations on asylum eligibility. See INA 208(b)(2)(C) (8 U.S.C. 
1158(b)(2)(C)). In other words, the Departments may expand upon the 
existing grounds for ineligibility and the disqualifying offenses, even 
when those or similar grounds have already been assigned immigration 
consequences, and the Departments have done so in this rulemaking. Cf. 
Hawaii, 138 S. Ct. 2411-12 (holding that Congress ``did not implicitly 
foreclose * * * tighter restrictions,'' even in circumstances in which 
those restrictions concerned a subject ``similar'' to the one that 
Congress ``already touch[ed] on in the INA'').
    The Departments disagree with commenters that adjudicators should 
have the discretion to determine whether aliens who have been convicted 
of offenses under sections 274(a)(1)(A), (2) of the Act (8 U.S.C. 
1324(a)(1)(A), (2)) should be eligible for asylum. Convictions for such 
offenses are serious and harmful. As noted in the NPRM, even first-time 
alien smuggling offenses display a serious disregard for U.S. 
immigration law and pose a potential hazard to smuggled family members, 
which often include a vulnerable child or spouse. 84 FR at 69648. And 
as also noted in the NPRM, the Act already bars most individuals who 
have been convicted of this offense from asylum eligibility, thus 
demonstrating congressional recognition of the seriousness of such 
offenses. Id. at 69647. Accordingly, the Departments have concluded 
that no aliens who have been convicted of such offenses should merit 
the discretionary benefit of asylum.
    The Departments disagree with commenters that an additional 
limitation on eligibility for aliens who have been convicted of alien 
smuggling or harboring offenses contravenes the ``whether or not at a 
designated port of arrival'' language in the asylum statute at section 
208(a)(1) of the Act (8 U.S.C. 1158(a)(1)). The Departments stress that 
this additional limitation has no bearing on the asylum applicant's 
manner of entry; rather it involves the asylum applicant's conduct with 
respect to unlawful entry of others. Thus, the Departments do not 
further address these comments.
    Comments concerning statements or guidance from UNHCR are 
misplaced. UNHCR's interpretations of or recommendations regarding the 
Refugee Convention and Refugee Protocol ``may be a useful 
interpretative aid,'' but they are ``not binding on the Attorney 
General, the BIA, or United States courts.'' Aguirre-Aguirre, 526 U.S. 
at 427. Indeed, as noted already, ``the Handbook itself disclaims such 
force, explaining that `the determination of refugee status under the 
1951 Convention and the 1967 Protocol * * * is incumbent upon the 
Contracting State in whose territory the refugee finds himself.' '' Id. 
at 427-28.
    The Departments disagree with commenters who stated that the 
Departments failed to explain how all smuggling and harboring 
convictions reflected a danger to the community that should result in a 
categorical bar to asylum.\20\ The Departments believe that they 
adequately explained their reasoning in the NPRM that such offenses 
place others, including children, in potentially hazardous situations 
that could result in injury or death, and that they reflect a flagrant 
disregard for immigration laws. As a result, those people who commit 
these offenses present a danger to the community. 84 FR at 69648.
---------------------------------------------------------------------------

    \20\ In addition, the Departments note that some commenters 
agreed with the Departments' determination regarding the 
dangerousness of these offenses. For example, one organization 
stated that ``the conduct required for such a conviction 
demonstrates contempt for U.S. immigration law and a disregard for 
the value of human life.''
---------------------------------------------------------------------------

    Additionally, as stated above, the Departments have designated such 
alien smuggling or harboring offenses as discrete bases for 
ineligibility pursuant to the authority provided by section 
208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) (authority to 
establish additional limitations and conditions on eligibility for 
asylum). Assuming, arguendo, that commenters are correct that the 
offenses designated by the rule do not accurately reflect an alien's 
dangerousness, the Departments' authority to set forth additional 
limitations and conditions on asylum eligibility under this provision 
requires only that such conditions and limitations be consistent with 
section 208 of the Act (8 U.S.C. 1158). See INA 208(b)(2)(C) (8 U.S.C. 
1158(b)(2)(C)) (``The Attorney General may by regulation establish 
additional limitations and conditions, consistent with this section, 
under which an alien shall be ineligible for asylum under paragraph 
(1).''). Unlike the designation of particularly serious crimes, there 
is no requirement that the aliens subject to the conditions or 
limitations meet a threshold of dangerousness. Compare id., with INA 
208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)), and INA 208(b)(2)(A)(ii) 
(8 U.S.C. 1158(b)(2)(A)(ii)) (providing that ``[t]he Attorney General 
may designate by regulation offenses'' for which an alien would be 
considered ``a danger to the community of the United States'' by virtue 
of having been convicted of a ``particularly serious crime''). Instead, 
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C) confers broad 
discretion on the Attorney General and the Secretary to establish a 
wide range of conditions on asylum eligibility, and the designation of 
the alien smuggling and harboring offenses included in the rule as an 
additional limitation on asylum eligibility is consistent with the rest 
of the statutory scheme. For example, Congress's inclusion of other 
crime-based bars to asylum eligibility demonstrates the intent to allow 
the Attorney General and Secretary to exercise the congressionally 
provided authority to designate additional types of criminal offenses 
or related behavior as bars to asylum eligibility. See INA 
208(b)(2)(A)(ii), (iii) (particularly serious crime and serious 
nonpolitical crime) (8 U.S.C. 1158(b)(2)(A)(ii), (iii)). And, as 
explained previously, Congress's inclusion of statutory bars on 
eligibility for aliens who engage in certain harmful conduct or commit 
certain types of crimes that are not ``particularly serious,'' see INA 
208(b)(2)(A)(i), (iii) (8 U.S.C. 1158(b)(2)(A)(i), (iii)), demonstrates 
that the ``dangerousness'' associated with the conduct is not the sole 
criterion by which the Departments may consider whether an alien should 
be eligible for asylum.
    The Departments disagree that this rule would undermine family 
values or particularly harm children. The Departments believe that the 
rule helps families and children by discouraging the dangerous 
practices of alien smuggling and harboring. The Departments disagree 
with commenters' assertions that current administrative policies or 
practices prevent families from presenting themselves at the border. In 
any event, commenters' concerns referencing such policies or practices 
are outside the scope of this rulemaking.
    Finally, regarding commenters' concerns for good Samaritans, the 
Departments note again that the bar requires a conviction for it to 
apply in a particular case. As a result, an individual who leaves 
provisions or other assistance for individuals traversing the harsh 
terrain at the southern border would not be ineligible for asylum under 
this bar unless he or she is in fact prosecuted and convicted. As with 
the other bars, the Departments understand that the individual 
circumstances surrounding each offense will vary and that some cases 
may involve mitigating circumstances, but

[[Page 67220]]

the Departments find that in the context of asylum eligibility, 
adjudicators should not look behind a conviction to readjudicate an 
alien's criminal culpability. Although the individual circumstances 
behind an alien's prosecution may vary, the Departments have concluded 
that, to promote adjudicative efficiency, it is appropriate to provide 
a clear standard that defers to the original prosecutor's determination 
to pursue a conviction of the alien for his or her conduct, as well as 
the criminal court's existing determination of proof beyond a 
reasonable doubt that the alien engaged in the conduct.
c. Illegal Reentry
    Comment: Commenters specified several reasons for opposing the 
NPRM's proposed limitation on eligibility for asylum for aliens 
convicted of illegal reentry under section 276 of the Act (8 U.S.C. 
1326). See 8 CFR 208.13(c)(6)(i), 1208.13(c)(6)(i) (proposed). Under 
section 276(a) of the Act (8 U.S.C. 1326(a)), aliens who unlawfully 
reenter the United States after having been previously removed are 
subject to fines and to a term of imprisonment of two years or less. 
Section 276(b) of the Act (8 U.S.C. 1326(b)) describes certain aliens, 
such as those who have been removed after commission of an aggravated 
felony, who face significantly higher penalties for unlawfully 
reentering the United States after previously having been removed and 
authorizes sentences of imprisonment up to 20 years as possible 
penalties.
    Some commenters asserted that the Departments improperly concluded 
that aliens who have been convicted of such offenses are per se dangers 
to the community, as recidivist offenders of the law, because the NPRM 
did not consider whether an alien's prior offenses were serious. See 84 
FR at 69648.
    Commenters asserted that the proposed limitation would violate 
Article 31(1) of the Refugee Convention, which generally prohibits 
imposing penalties based on a refugee's manner of entry or presence in 
the country. Commenters stated that this is a critical principle of the 
Convention because ``it recognizes that refugees often have little 
control over the place and manner in which they enter the country where 
they are seeking refuge.'' Commenters stated that the NPRM did not 
sufficiently explain how the proposed limitation was consistent with 
the Convention.
    Commenters also asserted that the proposed limitation undermined 
congressional intent and was not consistent with other provisions in 
the Act. Specifically, commenters stated that Congress, in accordance 
with international treaty obligations, has ``clearly supported the 
right to claim asylum anywhere on the U.S. border or at a land, sea, or 
air port of entry'' for almost 40 years. The commenters cited the 
Refugee Act, where, they stated, Congress authorized asylum claims by 
any foreign national ``physically present in the United States or at a 
land border or port of entry.'' The commenters stated that Congress 
later expressly reaffirmed this position in enacting section 208(a)(1) 
of the Act (8 U.S.C. 1158(a)(1)), which states that ``[a]ny alien who 
is physically present in the United States or who arrives in the United 
States (whether or not at a designated port of arrival * * *)'' may 
apply for asylum. Commenters believed that this provision ``reflected 
Congress's ongoing intent to comply with international law, as well as 
its recognition that allowing an applicant for refugee status to assert 
a claim for asylum at any point along a land border is a necessary 
component of essential refugee protections.''
    Commenters also asserted that the proposed limitation was 
inconsistent with the Act because it would treat all immigration 
violations as just as serious as those violations that should fall 
under the particularly serious crime bar, thus rendering meaningless 
the limiting language of ``particularly serious crimes'' in the 
statute. See INA 208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)).
    Commenters asserted that the proposed limitation was inconsistent 
with any of the other bars previously recognized by the BIA or the 
circuit courts because the crime of illegal reentry under section 276 
of the Act (8 U.S.C. 1326) has no element of danger or violence to 
others and has no victim.
    Commenters stated that the BIA and the circuit courts have also 
recognized that an alien's manner of entry should have little effect on 
eligibility for asylum. See, e.g., Hussam F. v. Sessions, 897 F.3d 707, 
718 (6th Cir. 2018) (holding that it was an abuse of discretion to deny 
asylum as a matter of discretion when the only negative factor was the 
alien's ``intentional failure to disclose that his passport was 
obtained in a non-traditional manner''); Zuh v. Mukasey, 547 F.3d 504, 
511 n.4 (4th Cir. 2008) (``When an alien uses fraudulent documents to 
escape imminent capture or further persecution, courts and [immigration 
judges] may give this factor little to no weight.''); Huang v. INS, 436 
F.3d 89, 100 (2d Cir. 2006) (``As with peripheral embellishments, if 
illegal manner of flight and entry were enough independently to support 
a denial of asylum, we can readily take notice, from the facts in 
numerous asylum cases that come before us, that virtually no persecuted 
refugee would obtain asylum. It follows that Wu's manner of entry, on 
the facts in this record, could not bear the weight given to it by the 
[immigration judge].''); Mamouzian v. Ashcroft, 390 F.3d 1129, 1138 
(9th Cir. 2004) (``[I]n order to secure entry to the United States and 
to escape their persecutors, genuine refugees may lie to immigration 
officials and use false documentation.''); Matter of Pula, 19 I&N Dec. 
at 473-74 (holding that the circumvention of the immigration laws is 
one factor for consideration).
    Commenters stated that asylum seekers are often motivated to 
illegally reenter the United States after having been deported to seek 
protection from harm rather than for criminal purposes, and that 
individuals who legitimately fear returning to their countries of 
origin have been criminally prosecuted under section 276 of the Act (8 
U.S.C. 1326). Commenters were concerned that the proposed bar would 
further criminalize vulnerable individuals fleeing persecution and 
would result in denial of meritorious claims for asylum. Commenters 
opined that such individuals should not be barred from asylum.
    Commenters stated that the Departments did not take into 
consideration that trafficking victims may have reentered the United 
States without authorization ``either because they were smuggled in by 
[a] trafficker, or because they were removed by the U.S., and then 
returned to find safety.''
    Commenters stated that ``racial and ethnic disparity in the number 
of sentenced offenders is even more pronounced in the context of 
illegal reentry'' and that ``latinx immigrants are disproportionately 
impacted by over-prosecution of illegal reentry offenses and harsh 
sentencing of illegal reentry convictions.''
    Some commenters described anecdotes of ``clients who have had to 
enter the United States without inspection due to cartel kidnappings, 
fears of being separated at the border, or misinformation by coyotes.'' 
One commenter stated that juveniles who were apprehended at the border 
and placed in Department of Health and Human Services (``HHS'') Office 
of Refugee Resettlement (``ORR'') custody might request to return to 
their country

[[Page 67221]]

of origin due to ``detention fatigue.'' The commenter stated that, upon 
return, these juveniles might face the same or new persecution, forcing 
them to flee once again.
    One commenter stated that this proposed limitation was unnecessary 
because many convictions under section 276 of the Act (8 U.S.C. 1326) 
already qualify as aggravated felonies. INA 101(a)(43)(O) (8 U.S.C. 
1101(a)(43)(O)) (providing that ``an offense described in section 
1325(a) [illegal entry] or 1326 of this title [illegal reentry] 
committed by an alien who was previously deported on the basis of an 
[aggravated felony as defined by section 101(a)(43) of the Act (8 
U.S.C. 1101(a)(43))]'' is an aggravated felony). Additionally, 
commenters stated that the proposed limitation was unnecessary because 
individuals who are convicted under section 276 of the Act (8 U.S.C. 
1326) are also subject to reinstatement of a prior order of removal 
under section 241(a)(5) of the Act (8 U.S.C. 1231(a)(5)), and, thus, 
are barred from applying for asylum if the prior order is reinstated. 
See INA 241(a)(5) (8 U.S.C. 1231(a)(5)) (stating that an alien whose 
``prior order of removal is reinstated * * * is not eligible and may 
not apply'' for any relief under the INA); 8 CFR 1208.31(e), (g)(2), 
1241.8(e). The commenters suggested that the Departments 
inappropriately expanded the bar to categorically exclude anyone 
convicted of illegal reentry.
    Some commenters stated that the proposed limitation was improper 
because underlying removal orders that are the basis for an illegal 
reentry conviction are often incorrectly issued and do not withstand 
legal scrutiny.
    Commenters expressed concern that individuals who attempt illegal 
reentry into the United States to flee persecution may have been 
previously removed from the United States without being aware of their 
right to apply for asylum. Commenters opined that such individuals 
``would not have knowingly abandoned their right.'' Commenters also 
stated that some individuals may have been prevented from seeking 
asylum during prior entries.
    Commenters asserted that asylum seekers who illegally reenter could 
have been incorrectly found to lack a credible fear in prior credible 
fear interviews. Some commenters stated that asylum seekers with 
legitimate claims may have been previously removed because they were 
unable to establish eligibility for relief without adequate access to 
legal representation. Some commenters asserted that there are credible 
reports that DHS officers do not comply with requirements to inform 
individuals subject to expedited removal of their rights or to refer 
those with a fear of return to asylum officers for credible fear 
screenings, even when requested, and that DHS officers have engaged in 
harassment or the spread of misinformation that interferes with 
individuals' abilities to pursue asylum. One commenter stated that 
there is a higher risk that credible fear interviews may result in 
erroneous denial because border patrol officers, not asylum officers, 
have been conducting asylum interviews. Commenters proposed that the 
illegal reentry bar to asylum eligibility would ``essentially punish 
asylum seekers for the failure of DHS officers to follow the agency's 
own rules.'' Commenters stated that preserving discretion, rather than 
implementing a categorical bar, would ensure that meritorious asylum 
claims are heard and correct previous errors.
    Some commenters stated that the Departments did not take into 
account that illegal reentry ``may be the only possible option'' for 
asylum applicants. Commenters asserted that ``current U.S. violations 
of international and domestic law regarding access to territory'' 
further intensified this proposition. Commenters stated that they 
believed that a number of the Executive Branch's administrative 
policies--such as (1) ``metering'' at the border; (2) the Migrant 
Protection Protocols (``MPP''), see DHS, Policy Guidance for 
Implementation of the Migrant Protection Protocols (Jan. 25, 2019), 
https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf; (3) the 
``third-country transit bar,'' see Asylum Eligibility and Procedural 
Modifications, 84 FR 33829 (July 16, 2019); and (4) international 
asylum cooperative agreements, see Implementing Bilateral and 
Multilateral Asylum Cooperative Agreements Under the Immigration and 
Nationality Act, 84 FR 63994 (Nov. 19, 2019)--drive asylum seekers to 
enter illegally rather than wait to present themselves at a port of 
entry, which in turn subjects them to the illegal reentry bar. 
Commenters suggested that, given these policies, the Departments 
incorrectly asserted that aliens who have previously been removed from 
the United States may present themselves at a port of entry. See 84 FR 
at 69648. One commenter suggested that many individuals who are driven 
to enter the United States unlawfully due to these policies do so with 
the intention of turning themselves in to U.S. Border Patrol 
authorities. Commenters also raised concerns that the proposed 
limitation would ``condemn to persecution those who are simply trying 
to enter the [United States] to reunite with their family and 
community.'' Commenters were also concerned that individuals with 
convictions under section 276 of the Act (8 U.S.C. 1326) would be 
punished twice for the same crime by also being barred from asylum.
    Some commenters stated that the NPRM unfairly punished individuals 
who have fled persecution multiple times or who have faced persecution 
arising after they had been removed, resulting in multiple unlawful 
entries. Commenters stated that refugee protection principles upon 
which asylum law is based require newly arising claims to be examined. 
Commenters specifically stated that, in proposing the illegal reentry 
bar, the Departments did not consider that immigrant survivors of 
violence who are removed to their countries of nationality may face 
violent retaliation and possibly death at the hands of their abusers or 
perpetrators and may flee the same perpetrators of domestic and sexual 
violence multiple times. Commenters asserted that a discretionary 
assessment was necessary to ensure that meritorious claims are heard.
    Response: The Departments disagree with commenters who oppose the 
rule's additional limitation on asylum eligibility for those who have 
been convicted of illegal reentry under section 276 of the Act (8 
U.S.C. 1326). The Departments have appropriately exercised their 
delegated authority to impose additional limitations on asylum 
eligibility per section 208(b)(2)(C) of the Act (8 U.S.C. 
1158(b)(2)(C)).
    First, the Departments clarify that this rule, like the proposed 
rule, designates these offenses as additional limitations on asylum 
eligibility pursuant to INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)).\21\ 
See 8 CFR 208.13(c)(6), 1208.13(c)(6). Regardless of commenters' 
concerns regarding the dangerousness of these crimes, section 
208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) offers a discrete 
basis

[[Page 67222]]

under which the Departments may designate these offenses as bases for 
ineligibility. Although the ``particularly serious crime'' designation 
would justify the conclusion that an alien is dangerous, see section 
208(b)(2)(A)(ii) of the Act (8 U.S.C. 1158(b)(2)(a)(ii)) (``the alien, 
having been convicted by final judgment of a particularly serious 
crime, constitutes a danger to the community of the United States''), 
the Attorney General's and the Secretary's authorities to set forth 
additional limitations and conditions on asylum eligibility under 
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) require only 
that such limitations or conditions be ``consistent with [section 208 
of the Act (8 U.S.C. 1158)].'' Thus, even assuming, arguendo, that the 
offenses designated by the final rule do not necessarily reflect an 
alien's dangerousness, the Attorney General and the Secretary retain 
the authority to promulgate the new bar. Accordingly, the Departments 
are unpersuaded by commenters' concerns regarding whether these 
offenses may not pose a danger to the community because such a finding 
is not required under section 208(b)(2)(C) of the Act (8 U.S.C. 
1158(b)(2)(C)).
---------------------------------------------------------------------------

    \21\ Although the Departments at times cited both the authority 
at section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) 
to designate offenses as a particularly serious crime and the 
authority at section 208(b)(2)(C) of the Act (8 U.S.C. 
1158(b)(2)(C)) to establish additional limitations on asylum 
eligibility in support of the designation of a subset of the 
included bars in the proposed rule, see 84 FR at 69645-54, the 
references to the authority to designate additional particularly 
serious crimes highlighted an alternative basis for the inclusion of 
most of the new bars to asylum eligibility and sought to elucidate 
the serious nature of these crimes and the Departments' reasoning 
for including these offenses in the new provisions. Further 
discussion of the interaction of the rule with the ``particularly 
serious crime'' bar is set out above in section II.C.2.a.i.
---------------------------------------------------------------------------

    With respect to commenters who expressed concern that the proposed 
limitation would violate Article 31 of the Refugee Convention, as well 
as undermine congressional intent and established case law, the 
Departments note that the rule's limitations on eligibility for asylum 
are consistent with Article 31 of the Refugee Convention. Courts have 
held, in the context of upholding the bar on eligibility for asylum in 
reinstatement proceedings under section 241(a)(5) of the INA, 8 U.S.C. 
1231(a)(5), that limiting the ability to receive asylum does not 
constitute a prohibited ``penalty'' under Article 31(1) of the Refugee 
Convention.\22\ Cazun, 856 F.3d at 257 & n.16; Mejia, 866 F.3d at 588.
---------------------------------------------------------------------------

    \22\ The Ninth Circuit recently indicated--erroneously, in the 
view of the Departments--that removal can be considered a 
``penalty'' under Article 31(1) of the Refugee Convention. E. Bay 
Sanctuary Covenant v. Trump, 950 F.3d 1242, 1276 (9th Cir. 2020). In 
doing so, however, the Ninth Circuit cited the Supreme Court's 
decision in Padilla, 559 U.S. at 364, which discussed immigration 
penalties in terms of criminal proceedings, not Article 31(1) of the 
Refugee Convention. Further, the Ninth Circuit noted its observation 
solely in the context of limiting asylum eligibility based on manner 
of entry, and the court did not reach other asylum restrictions such 
as this rule.
---------------------------------------------------------------------------

    The proposed rule is also consistent with Article 34 of the Refugee 
Convention, concerning assimilation of refugees, as implemented by 
section 208 of the INA, 8 U.S.C. 1158. Section 208 of the INA reflects 
that Article 34 is precatory and not mandatory, and accordingly does 
not provide that all refugees shall receive asylum. See Cardoza-
Fonseca, 480 U.S. at 441; Garcia, 856 F.3d at 42; Cazun, 856 F.3d at 
257 & n.16; Mejia v. Sessions, 866 F.3d 573, 588 (4th Cir. 2017); R-S-
C, 869 F.3d at 1188; Ramirez-Mejia, 813 F.3d at 241. As noted above, 
Congress has long recognized the precatory nature of Article 34 by 
imposing various statutory exceptions and by authorizing the creation 
of new bars to asylum eligibility through regulation. Courts have 
likewise rejected arguments that other provisions of the Refugee 
Convention require every refugee to receive asylum. Courts have also 
rejected the argument that Article 28 of the Refugee Convention, 
governing issuance of international travel documents for refugees 
``lawfully staying'' in a country's territory, mandates that every 
person who might qualify for withholding must also be granted asylum. 
Garcia, 856 F.3d at 42; R-S-C, 869 F.3d at 1188. Additionally, as noted 
above, the United States implemented the non-refoulement obligation of 
Article 33(1) of the Refugee Convention through the withholding-of-
removal provision at section 241(b)(3) of the Act (8 U.S.C. 
1231(b)(3)), and the non-refoulement obligation of the CAT under the 
CAT regulations, rather than through the asylum provisions at section 
208 of the Act (8 U.S.C. 1158). See Cardoza-Fonseca, 480 U.S. at 429, 
440-41. Individuals who may be barred from asylum by the rule remain 
eligible to seek withholding of removal and protection under CAT in 
accordance with non-refoulement obligations.
    Additionally, as noted in the NPRM, the statutory bar on applying 
for asylum and other forms of relief when an order of removal is 
reinstated has been upheld by every circuit to consider the question. 
84 FR at 69648; see Garcia v. Sessions, 873 F.3d 553, 557 (7th Cir. 
2017), cert. denied, 138 S. Ct. 2648 (2018); R-S-C, 869 F.3d at 1189; 
Mejia, 866 F.3d at 587; Garcia, 856 F.3d at 30; Cazun, 856 F.3d at 260; 
Perez-Guzman v. Lynch, 835 F.3d 1066, 1082 (9th Cir. 2016); Jimenez-
Morales v. U.S. Att'y Gen., 821 F.3d 1307, 1310 (11th Cir. 2016); 
Ramirez-Mejia v. Lynch, 794 F.3d 485, 489-90 (5th Cir. 2015); Herrera-
Molina v. Holder, 597 F.3d 128, 137-38 (2d Cir. 2010). This reflects a 
broad understanding that individuals who repeatedly enter the United 
States unlawfully should not be eligible for the discretionary benefit 
of asylum and that limiting such eligibility does not conflict with 
section 208(a) of the Act (8 U.S.C. 1158(a)).
    The Departments disagree with commenters' assertions that current 
administrative practices prevent asylum seekers from lawfully 
presenting themselves at the border. In any event, commenters' concerns 
referencing such policies or practices are outside the scope of this 
rulemaking.
    With respect to commenters' concerns that the rule should not apply 
to those who unlawfully reentered the United States because of their 
desire to be reunited with family members living in the United States 
or to individuals who have been victims of trafficking or smuggling, 
the Departments believe that evaluations of mitigating factors or 
criminal culpability based on motives are more appropriately reserved 
for criminal proceedings. As stated in the NPRM, the Departments 
believe it is reasonable to limit eligibility for asylum to exclude 
aliens convicted of illegal reentry because this type of offense 
demonstrates that an alien has repeatedly flouted the immigration laws. 
See 84 FR at 69648. The Departments have a legitimate interest in 
maintaining the orderly and lawful admission of aliens into the United 
States. Aliens convicted of illegal reentry have engaged in conduct 
that undermines that goal.
    In response to commenters who suggested that the rule would result 
in denial of meritorious claims, the Departments note that those with a 
legitimate fear of persecution or torture may still apply for statutory 
withholding of removal or CAT withholding and deferral, forms of 
protection that this final rule does not affect. Additionally, these 
commenters misapprehend the purpose of this rulemaking. Awarding the 
discretionary benefit of asylum to individuals described in this rule 
would, among other things, encourage lawless behavior and subject the 
United States and its communities to the dangers associated with the 
crimes or conduct in which such persons have engaged. The Departments 
have appropriately exercised their authority to impose additional 
limitations on asylum eligibility to bar such individuals from that 
relief. Accordingly, those persons do not have meritorious asylum 
claims. By definition, if an applicant is ineligible for the 
discretionary benefit of asylum because of this rule, or any other 
statutory or regulatory limitation, he or she does not have a 
meritorious claim for asylum.
    The Departments disagree with commenters' concerns that individuals 
with convictions under section 276 of the INA (8 U.S.C. 1326) would be 
punished twice for the same crime by

[[Page 67223]]

being barred from asylum. The Departments emphasize that immigration 
proceedings are civil in nature, and thus denial of relief from removal 
is not a punishment, particularly with respect to a discretionary 
benefit such as asylum. Cf. Mejia, 866 F.3d at 588 (``We therefore 
perceive no basis for concluding that depriving aliens, upon illegal 
re-entry, additional opportunities to apply for discretionary relief 
constitutes a `penalty.'''). In addition, commenters' logic would have 
far-reaching implications that would undermine the entire statutory 
scheme that imposes any immigration consequences on account of an 
alien's criminal convictions, including eligibility for forms of relief 
or removability from the United States, see, e.g., INA 212(a)(2) (8 
U.S.C. 1182(a)(2)) (criminal grounds of inadmissibility); 237(a)(2) (8 
U.S.C. 1227(a)(2)) (criminal grounds of deportability), but there has 
never been any reason to question the framework in such a manner, see, 
e.g., Nijhawan, 557 U.S. at 36 (analyzing whether convictions for 
certain crimes constituted aggravated felonies for purposes of the INA 
without questioning whether immigration penalties could be imposed for 
those convictions).
d. Criminal Street Gang Activity
    Comment: Several commenters opposed the imposition of a bar to 
asylum eligibility based on the furtherance of criminal street gang 
activity.
    As an initial matter, commenters noted that, under the current 
asylum system, a conviction for an offense categorized as a gang-
related crime would bar an individual from asylum in most cases. 
However, commenters expressed concern that the NPRM extends culpability 
for gang-related crime beyond offenses categorized as gang-related 
crimes and would also bar individuals from asylum if an adjudicator 
``knows or has reason to believe the crime was committed in furtherance 
of criminal street gang activity.'' Commenters asserted that the 
standard for this bar is so broad that individuals not associated with 
gangs could be included in this category and barred from asylum.
    At the same time, commenters argued that the proposed rule does not 
sufficiently detail how an individual qualifies as a street gang member 
or how an activity is to be categorized as gang-related. As a result, 
commenters expressed concern that the proposed rule granted immigration 
adjudicators too much latitude to determine whether a crime fits into 
the vague category of supporting, promoting, or furthering the activity 
of a criminal street gang. Commenters were concerned that information 
in databases of gang-related crimes or factors such as where the 
criminal activity occurred may lead to improper categorization of gang-
related activity. Commenters were similarly concerned that the bar does 
not account for the circumstances of the offense, such as whether 
coercion or threats forced the asylum applicant to undertake the 
criminal activity. Commenters asserted that immigration adjudicators 
should, at a minimum, be permitted to consider such factors as coercion 
or duress prior to granting or denying asylum.
    Commenters asserted that the ``reason to believe'' standard is 
ultra vires and unconscionably limits asylum eligibility for those most 
in need of protection. Commenters asserted that the ``reason to 
believe'' standard grandly expands the number of convictions for which 
an eligibility analysis is required and would ``sweep[] in even petty 
offenses that would otherwise not trigger immigration consequences.'' 
Commenters asserted, moreover, that the ``reason to believe'' standard 
for determining whether there is a sufficient link between the 
underlying conviction and the gang-related activity is ``overly broad 
and alarmingly vague.''
    Additionally, commenters argued that the ``reason to believe'' 
standard places the adjudicator in the role of a second prosecutor and 
requires the adjudicator to decide, without the benefit of a criminal 
trial and attendant due process of law, whether a crime could have been 
potentially gang-related. At the same time, commenters stated that 
immigration adjudicators, who are not criminologists, sociologists, or 
criminal law experts, would be required to analyze past misdemeanor 
convictions to determine whether there is a link to gang activity, 
regardless of whether the individual was also charged or convicted of a 
street gang offense.
    Commenters cited concerns regarding the admission of ``all reliable 
evidence'' to determine whether there was ``reason to believe'' that 
the conduct implicated gang-related matters. They averred that this 
phrase was potentially limitless and that its scope required both 
parties to present fulsome arguments regarding an offense's possible 
gang connections. Moreover, commenters asserted that the proposed rule 
fails to articulate what type of evidence or non-adjudicated conduct 
may be considered by an adjudicator when determining whether a bar to 
asylum applies.
    In addition, commenters expressed concern that permitting 
adjudicators to rely on ``all reliable evidence'' will result in 
immigration adjudicators relying on any type of evidence, including 
police reports, unsubstantiated or subsequently recanted hearsay 
statements, and discredited methods of gang identification, such as 
gang databases. Commenters asserted that this will result in a 
compounded disparate racial impact based on over-inclusion of young 
people of color in those gang databases. Commenters asserted that gang 
databases are ``notoriously inaccurate, outdated, and infected by 
racial bias.'' Additionally, commenters stated that gang databases are 
unregulated and that an individual may be included in a database simply 
based on ``living in a building or even neighborhood where there are 
gang members, wearing certain colors or articles of clothing, or 
speaking to people law enforcement believe to be gang members.''
    One commenter referenced a decision of the Supreme Judicial Court 
of Massachusetts holding that the information contained in gang 
databases is hearsay, not independently admissible, and raises serious 
Confrontation Clause concerns. Commonwealth v. Wardsworth, 124 NE3d 
662, 678-79 & nn.24-25 (Mass. 2019). That commenter also asserted that, 
despite the concern expressed by the Supreme Judicial Court of 
Massachusetts regarding the use of gang databases, immigration judges 
continue to regularly rely on such reports. By relying on such 
unreliable evidence, commenters averred, the proposed rule will 
exacerbate due process violations already occurring as a result of 
unsubstantiated gang ties.
    Commenters further noted that, because these databases disparately 
affect young people of color, relying on these databases would multiply 
the harm already caused by racially disparate policing and racially 
disparate rates of guilty pleas to minor offenses. Commenters claimed 
that asylum seekers of color are subject to racially disparate 
policing, which results in racially disparate rates of guilty pleas to 
minor offense, and which also results in this population being 
erroneously entered and overrepresented in gang databases. In support 
of the inaccuracy of these databases, one commenter cited concerns that 
police departments falsify gang affiliations of youth encountered by 
police officers. As a result, commenters asserted, the proposed rule 
would ``invite extended inquiry into the character of young men of 
color'' who

[[Page 67224]]

may otherwise have meritorious asylum claims and who are already 
subject to racially suspect policing practices.
    Commenters noted that police reports are inherently unreliable in 
the absence of the protections offered by the Confrontation Clause of 
the Sixth Amendment and the Federal Rules of Evidence, neither of which 
apply in immigration court. Regarding the unreliability of evidence, 
one commenter provided an example where neither the police officers nor 
the alleged victims were required to testify. Without this testimony, 
the commenter alleged, the immigration adjudicator would be unable to 
determine whether a victim had a motive to lie to the police, whether 
the victim later recanted his or her statements, or whether the police 
officer misunderstood some critical fact. Moreover, commenters asserted 
that, although immigration adjudicators would be unable to rely on 
uncorroborated allegations such as those contained in arrest reports, 
adjudicators could nevertheless shield denials based on such 
information by relying on discretion.
    Commenters stated that the proposed rule would exacerbate due 
process violations that already occur as a result of unsubstantiated 
information about gang ties. Commenters claimed that asylum applicants 
are already subjected to wrongful denials of asylum based on 
allegations of gang activity made by DHS. Commenters alleged that DHS 
relies on unreliable foreign databases and ``fusion'' intelligence-
gathering centers outside of the United States. For example, one 
commenter alleged that information regarding gang affiliations gathered 
from the fusion intelligence-gathering center in El Salvador has 
already been used against asylum seekers, despite having been found to 
be inaccurate. At the same time, commenters asserted that immigration 
adjudicators routinely premise enforcement, detention, and 
discretionary denials of relief on purported gang membership and often 
grant deference to gang allegations made by Immigration and Customs 
Enforcement (``ICE'') personnel. Commenters asserted that the already 
expanded use of gang databases to apprehend and remove foreign 
nationals has been widely criticized as an overbroad, unreliable, and 
often biased measure of gang membership and involvement.
    Additionally, commenters expressed disagreement with the 
Departments' position that all gang-related offenses could be 
considered as particularly serious crimes. Commenters criticized the 
Departments' reliance on statistics from up to 16 years ago to 
demonstrate that gang members commit violent crimes and drug crimes. 
Commenters disagreed with the Departments' conclusion that all crimes 
that may be construed as connected to gang activity are particularly 
serious. Commenters asserted instead that it is illogical to argue 
that, because gang members may commit some violent crimes and drug 
crimes, all crimes committed by anyone remotely connected with a gang 
are particularly serious.
    Commenters also asserted that the proposed rule will result in 
asylum seekers who live in economically distressed areas but who have a 
minor criminal conviction, for example for a property crime, being 
excluded from protection. Commenters asserted that including even minor 
crimes construed as gang-related in the ``particularly serious crime'' 
bar and preventing those individuals from accessing asylum is 
``disingenuous at best, and tinged with racial animus at worst.'' 
Commenters asserted that this bar would perpetuate racial bias within 
the immigration court system.
    Commenters asserted that the gang-related-crimes bar should not be 
introduced at all due to the complex nature of gang ties and the 
frequency with which individuals are mislabeled as being part of a 
gang. These commenters argued that the risk of erroneously barring 
legitimate asylum seekers from eligibility is too high. Another 
commenter noted that it was ``particularly cruel'' to create a bar 
related to gang offenses ``in the wake of this Administration's refusal 
to countenance gang violence as a ground to asylum.'' Moreover, 
commenters asserted that the INA and existing regulations already 
permit immigration adjudicators to deny asylum as a matter of 
discretion. Adding this new bar based on gang-related activity, 
according to these commenters, risks excluding bona fide asylum seekers 
from protection without adding any useful adjudicatory tool to the 
process.
    Commenters noted that previous attempts to expand the grounds of 
removal and inadmissibility to include gang membership failed to pass 
both houses of Congress. One commenter noted concern that an individual 
could be erroneously convicted of a gang-related crime because of the 
widespread nature of gang activity in Central America. This commenter 
also expressed concern that, because gangs in Central America may act 
with impunity and ``often control a corrupt judiciary,'' an individual 
could be erroneously convicted of a crime for refusing to acquiesce to 
a gang's demands.
    Response: As explained further in section II.C.2.a.i, the bar based 
on activity related to criminal street gangs is enacted pursuant to the 
Attorney General's and the Secretary's designated authorities to 
establish additional limitations and conditions on asylum. INA 
208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)).\23\ This authority requires such 
conditions and limitations to be consistent with section 208 of the Act 
(8 U.S.C. 1158) and does not require that the offenses meet a threshold 
of dangerousness or seriousness. Compare INA 208(b)(2)(C) (8 U.S.C. 
1158(b)(2)(C)) (``The Attorney General may by regulation establish 
additional limitations and conditions, consistent with this section, 
under which an alien shall be ineligible for asylum under paragraph 
(1)''), with INA 208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)) and INA 
208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)) (providing that ``[t]he 
Attorney General may designate by regulation offenses'' for which an 
alien would be considered a ``danger to the community of the United 
States'' by virtue of ``having been convicted by a final judgment of a 
particularly serious crime''). Although the Departments have determined 
that the included offenses involving criminal street gangs represent 
dangerous offenses and that the offenders represent particular dangers 
to society, see 84 FR at 69649-50, the Departments would nevertheless 
be acting within the authority of section 208(b)(2)(C) of the Act (8 
U.S.C. 1158(b)(2)(C)) if commenters are correct that some offenses 
included are not connected to dangerousness. Section 208(b)(2)(C) of 
the Act (8 U.S.C. 1158(b)(2)(C) confers broad discretion on the 
Attorney General and the Secretary to establish a wide range of 
conditions on asylum eligibility, and the designation of criminal 
street gang-

[[Page 67225]]

related offenses as defined in the rule as an additional limitation on 
asylum eligibility is consistent with the rest of the statutory scheme. 
For example, Congress's inclusion of other crime-based bars to asylum 
eligibility demonstrates the intent to allow the Attorney General and 
the Secretary to exercise the congressionally provided authority to 
designate additional types of criminal offenses or related behavior as 
bars to asylum eligibility. See INA 208(b)(2)(A)(ii), (iii) 
(particularly serious crime and serious nonpolitical crime) (8 U.S.C. 
1158(b)(2)(A)(ii), (iii)). Moreover, Congress has expressly excluded 
from eligibility certain aliens who engage in conduct or commit crimes 
of a certain character or gravity, regardless of whether those aliens 
are ``dangerous'' to the United States, and regardless of whether those 
crimes have been formally designated as ``particularly serious.'' See 
INA 208(b)(2)(A)(i), (iii) (8 U.S.C. 1158(b)(2)(A)(i), (iii)). The 
Departments have concluded that criminal street gang-related offenses 
are sufficiently similar to such conduct and crimes that aliens who 
commit such offenses should not be rewarded with asylum and the many 
benefits that asylum confers.
---------------------------------------------------------------------------

    \23\ The proposed rule preamble cited both the authority at 
section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) to 
designate offenses as a particularly serious crime and the authority 
at section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) to 
establish additional limitations on asylum eligibility in support of 
the designation of gang-related crimes as bars to asylum 
eligibility. Compare 84 FR at 69650 (``Regardless, criminal street 
gangs-related offenses--whether felonies or misdemeanors--could 
reasonably be designated as `particularly serious crimes' pursuant 
to 8 U.S.C. 1158(b)(2)(B)(ii).''), with id. (``Moreover, even if 8 
U.S.C. 1158(b)(2)(B)(ii) did not authorize the proposed bar, the 
Attorney General and the Secretary would propose designating 
criminal gang-related offenses as disqualifying under 8 U.S.C. 
1158(b)(2)(C).''). Nevertheless, the authority at section 
208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)) aligns with the regulatory 
text and was used to support all of the categories of bars set out 
in the rule.
---------------------------------------------------------------------------

    Further, the Departments disagree with comments asserting the 
criminal street gang-related offenses are not necessarily indicative of 
a danger to the United States. See 84 FR at 69650. Specifically, the 
Departments believe that such offenses are strong indicators of 
recidivism and ongoing, organized criminality. Id. Based on the data 
and research articulated in the NPRM, the Departments believe that 
individuals who enter the United States and are then convicted of a 
crime related to criminal street gang activity present an ongoing 
danger to the community and should therefore be ineligible for asylum. 
Significantly, the Departments reject commenters' assertions that the 
Departments relied on data that was over 16 years old. Although one of 
the reports relied upon in the NPRM was published in 2004, additional 
studies and information were cited ranging from 2010 to 2015. See 84 FR 
at 69650. Additionally, the White House recently issued a fact sheet 
observing that ``[a]pproximately 38 percent of all murders in Suffolk 
County, New York, between January 2016 and June 2017'' were linked to a 
single criminal gang--MS-13--alone. The White House, Protecting 
American Communities from the Violence of MS-13 (Feb. 6, 2020), https://www.whitehouse.gov/briefings-statements/protecting-american-
communities-violence-ms-13/; see also Alan Feuer, MS-13 Gang: 96 
Charged in Sweeping Crackdown on Long Island, N.Y. Times (Dec. 20, 
2019), https://www.nytimes.com/2019/12/20/nyregion/ms-13-long-island.html; Proc. No. 9928, 84 FR 49187, 49187 (Sept. 13, 2019) 
(explaining that the DOJ is working with law enforcement in El 
Salvador, Guatemala, and Honduras to ``help coordinate the fight 
against MS-13, the 18th Street Gang, and other dangerous criminal 
organizations that try to enter the United States in an effort to 
ravage our communities,'' and that this partnership ``targets gangs at 
the source and works to ensure that these criminals never reach our 
borders''); id. (observing that, in 2017 and 2018, ICE officers ``made 
266,000 arrests of aliens with criminal records, including those 
charged or convicted of 100,000 assaults, nearly 30,000 sex crimes, and 
4,000 violent killings''). These more recent examples demonstrate the 
continued threat posed by gang-related crime.
    The Departments disagree with commenters' assertions that the rule 
fails to sufficiently detail how an individual qualifies as a street 
gang member or how an activity is to be categorized as a gang-related 
event. As an initial matter, the rule does not purport to categorize 
individuals as street gang members. Rather, the inquiry is limited into 
whether an adjudicator knows or has reason to believe that a prior 
conviction for a Federal, State, tribal, or local crime was committed 
in support, promotion, or furtherance of criminal street gang activity. 
84 FR at 69649. This rule defines ``criminal street gang'' by 
referencing how that term is defined in the convicting jurisdiction or, 
alternatively, as the term is defined in 18 U.S.C. 521(a). The 
Departments believe that the language of the Federal statute conveys 
sufficiently definite warning as to the proscribed conduct when 
measured by common understanding and practices, as do the definitions 
in the convicting jurisdictions. This rule leaves the determination of 
whether a crime was in fact committed ``in furtherance'' of gang-
related activity to adjudicators in the first instance. As noted in the 
NPRM, to the extent that this type of inquiry may lead to concerns 
regarding inconsistent application of the bar, the Departments 
reiterate that the BIA is capable of ensuring a uniform approach. See 8 
CFR 1003.1(e)(6)(i).
    In response to commenters who suggested that the rule would result 
in denial of meritorious claims, the Departments note that those with 
legitimate fear of persecution or torture may still apply for statutory 
withholding of removal or protection under the CAT regulations, as 
discussed in section II.C.5. In addition, and as explained previously, 
these commenters misapprehend the purpose of this rulemaking. The 
Departments have concluded that persons subject to the new bars do not 
warrant asylum because awarding the discretionary benefit of asylum to 
such individuals would encourage lawless behavior, subject the United 
States to certain dangers, and otherwise undermine the policies 
underlying the statutory framework for asylum. These persons 
accordingly do not have meritorious asylum claims. And, because nothing 
in the INA precludes the imposition of these new bars, the fact that 
these persons' claims might otherwise be meritorious is irrelevant.
    Regarding commenters' concerns with the ``reason to believe'' 
standard articulated in the rule, the Departments note that this 
standard is used elsewhere in the INA. For example, when considering 
admissibility, immigration judges consider whether there is reason to 
believe that the individual ``is or has been an illicit trafficker in 
any controlled substance.'' INA 212(a)(2)(C) (8 U.S.C. 1182(a)(2)(C)). 
In accordance with this provision, courts have upheld findings of 
inadmissibility in the absence of a conviction. See Cuevas v. Holder, 
737 F.3d 972, 975 (5th Cir. 2013) (holding ``that an alien can be 
inadmissible under [INA 212(a)(2)(C) (8 U.S.C. 1182(a)(2)(C))] even 
when not convicted of a crime''); Garces v. U.S. Att'y Gen., 611 F.3d 
1337, 1345 (11th Cir. 2010) (stating that section 1182(a)(2)(C) of the 
Act (8 U.S.C. 1182(a)(2)(C)) renders an alien inadmissible based on a 
``reason to believe'' standard, which does not require a conviction); 
Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1053 (9th Cir. 2005) 
(``Section 1182(a)(2)(C) does not require a conviction, but only a 
`reason to believe' that the alien is or has been involved in drug 
trafficking.''). The bar on criminal street gang-related activity is 
narrower in scope than the inadmissibility charge based on illicit 
trafficking in that the bar in this rule still requires a conviction. 
As such, the Departments believe that the ``reason to believe'' 
standard is appropriately applied to the final rule.
    Similarly, the ``all reliable evidence'' standard is not a new 
standard in immigration proceedings. Immigration judges routinely 
consider any relevant evidence provided in removal hearings by either 
party. 8 CFR 1240.1(c). Additionally, the BIA held, in the context of 
evaluating whether a crime constitutes a particularly serious crime,

[[Page 67226]]

that, once the elements of the offense are examined and found to 
potentially bring the offense within the ambit of a particularly 
serious crime, the adjudicator may consider all reliable information in 
making a ``particularly serious crime'' determination, including but 
not limited to the record of conviction and sentencing information. 
Matter of N-A-M-, 24 I&N Dec. at 337-38. The Ninth Circuit has held 
that the BIA's interpretation in Matter of N-A-M- is reasonable. Anaya-
Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010). Additionally, 
various circuit courts have applied the ``all reliable information'' 
standard articulated in Matter of N-A-M- in considering whether crimes 
are particularly serious. See, e.g., Luziga v. Att'y Gen. U.S., 937 
F.3d 244, 253 (3d Cir. 2019); Marambo v. Barr, 932 F.3d 650, 655 (8th 
Cir. 2019).
    The Departments disagree with commenters' concerns about 
adjudicators' reliance on arrest reports and uncorroborated 
information. As an initial point, most asylum claims are based 
significantly on hearsay evidence that is uncorroborated by non-hearsay 
evidence. Such evidence, however, does not necessarily make an asylum 
claim unreliable or insusceptible to proper adjudication. Adjudicators 
assessing asylum applications are well versed in separating reliable 
from unreliable information, assigning appropriate evidentiary weight 
to the evidence submitted by the applicant and DHS, and determining 
whether corroborative evidence needs to be provided. See INA 
208(b)(1)(B) (8 U.S.C. 1158(b)(1)(B)). Moreover, this rule does not 
provide adjudicators with unfettered discretion; instead, adjudicators 
must consider such evidence in the context of making a criminal street 
gang determination under the ``reason to believe'' standard. An asylum 
officer's assessment of eligibility necessarily must explain the 
consideration of the evidence of record as it applies to the evaluation 
of bars to asylum and the burden of proof, and it must also explain the 
exercise of discretion. Similarly, immigration judges are already 
charged with considering material and relevant evidence. 8 CFR 
1240.1(c). To make this determination, immigration judges consider 
whether evidence is ``probative and whether its use is fundamentally 
fair so as not to deprive the alien of due process of law.'' Ezeagwuna 
v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003) (quoting Bustos-Torres v. 
INS, 898 F.2d 1053, 1055 (5th Cir. 1990)). Nothing in this rule 
undermines or withdraws from this standard. Moreover, the Departments 
would not purport to impinge on an adjudicator's evidentiary 
determination or direct the result of such a determination. If aliens 
have concerns about the reliability of any evidence, aliens may 
challenge the reliability of that evidence as part of their arguments 
to the adjudicator. As a result, the Departments have concluded that 
concerns regarding the reliability of gang databases or other evidence 
are more properly addressed in front of the immigration judge or asylum 
officer in individual cases.
    The Departments disagree with comments that adjudicators should 
have the discretion to determine whether factors such as coercion or 
duress affected an individual's involvement in criminal street gang-
related activity. The Departments believe that criminal street gang-
related activity is serious and harmful in all circumstances. As stated 
in the NPRM, ``[c]riminal gangs of all types * * * are a significant 
threat to the security and safety of the American public.'' 84 FR at 
69650. Accordingly, the Departments have concluded that aliens who have 
been convicted of such offenses do not merit the discretionary benefit 
of asylum, even if their gang involvement was potentially the result of 
coercion or some other unique circumstance. In addition, the 
Departments believe that considerations regarding criminal culpability 
for criminal street gang-related offenses would be best addressed 
during the individual's underlying criminal proceedings.
    Commenters' assertions that the rule will exacerbate harms caused 
by racially disparate policing practices or that the result of this 
rule will disproportionately affect people of color are outside the 
scope of this rulemaking. Cf. San Francisco, 944 F.3d at 803-04 (``Any 
effects [of the public charge rule] on [healthcare] entities are 
indirect and well beyond DHS's charge and expertise.''). The rulemaking 
does not address actual or alleged injustices of the criminal justice 
system, as referenced by the commenters. Moreover, the rule was not 
racially motivated, nor did racial animus or a legacy of bias play any 
role in the publication of the rule. Rather, this final rule is being 
published to categorically preclude from asylum eligibility certain 
aliens with various criminal convictions because the Departments 
determined that individuals engaging in criminal activity that is 
related to criminal street gangs present a sufficient danger to the 
United States to warrant exclusion from the discretionary benefit of 
asylum. To the extent that the rule disproportionately affects any 
group referenced by the commenters, any such impact is beyond the scope 
of this rule, as this rule was not drafted with discriminatory intent 
towards any group, and the provisions of the rule apply equally to all 
applicants for asylum.
e. Driving Under the Influence of an Intoxicant
    Comment: Commenters opposed the proposed categorical bar to asylum 
based on a DUI conviction. Commenters stated that the proposed 
categorical bars encompass crimes with a wide range of severity, and 
commenters asserted that DUI does not rise to a comparable level of 
severity as a particularly serious crime warranting its promulgation as 
a categorical bar to asylum. Other commenters similarly stated that, 
because DUI does not involve conduct that is necessarily dangerous on 
its own, the offense is not serious enough to support a categorical bar 
to asylum. Commenters provided examples of allegedly low-level 
convictions for DUI, based on examples such as a court concluding that, 
when ``the key is in the ignition and the engine is running, a person 
`operates' a vehicle, even if that person is sleeping or unconscious,'' 
State v. Barac, 558 SW3d 126, 130 (Mo. Ct. App. 2018), or when a person 
operates a vehicle while under the influence but no injury to another 
person results. Accordingly, commenters asserted that DUI is not 
necessarily serious or sufficiently dangerous to warrant a categorical 
bar. One commenter summarized the concern by stating that offenses 
related to DUI are ``excessively overbroad in the convictions and 
conduct covered[ ] and are not tailored to identify conduct that is 
`serious' or identify individuals who pose a danger to the community.''
    Commenters also asserted that creating a blanket categorical bar to 
asylum based on a DUI conviction would eliminate the opportunity for 
adjudicators to consider the facts before them in exercising 
discretion. Commenters stated that adjudicators should consider the 
severity of the DUI offense given relevant facts, such as the 
applicant's criminal history, the underlying cause of the applicant's 
criminal record involving DUI, the applicant's efforts towards 
rehabilitation, the length of time passed since the conviction, the 
applicant's potential danger to the community, and the applicant's risk 
of persecution if returned to his or her home country.
    Commenters noted that multiple DUI convictions are not an absolute 
bar to cancellation of removal under INA 240A(b) (8 U.S.C. 1229b(b)) 
and cited the Attorney General's opinion that

[[Page 67227]]

such offenses were inconclusive of an individual's character, thus 
allowing individuals to rebut the presumption with evidence of good 
character and rehabilitation. Matter of Castillo-Perez, 27 I&N Dec. 664 
(A.G. 2019). Commenters stated that, ``if individuals seeking 
discretionary cancellation of removal are afforded the opportunity to 
show that they merit permanent residence in spite of their prior 
convictions for driving under the influence, it is nonsensical to 
promulgate a rule denying asylum seekers that same opportunity.''
    Finally, commenters noted that low-income people and people of 
color are more likely to be pulled over and charged with DUI. These 
commenters alleged that the proposed rule accordingly exacerbates the 
unjust criminal justice system by including these provisions as a bar 
to asylum eligibility.
    Response: The Departments disagree that DUI does not warrant a 
categorical bar to asylum eligibility.
    Although commenters provided limited examples of times where an 
individual convicted of a DUI offense fortunately may not have caused 
actual harm to others, these sorts of DUI convictions alone would not 
render an alien ineligible for asylum under this rule. The final rule 
bars aliens with DUI convictions from asylum eligibility under two 
grounds in 8 CFR 208.13(c)(6)(iii), (c)(6)(iv) and 1208.18(c)(6)(iii), 
(c)(6)(iv). First, under 8 CFR 208.13(c)(6)(iii) and 
1208.13(c)(6)(iii), a single DUI offense would only be disqualifying if 
it ``was a cause of serious bodily injury or death of another person.'' 
Second, under 8 CFR 208.13(c)(6)(iv)(A) and 1208.13(c)(6)(iv)(A), any 
second or subsequent DUI offense would be disqualifying. Accordingly, a 
single conviction that does not cause bodily injury or death to another 
would not be a bar to asylum, but would continue to be considered by 
adjudicators in determining whether an alien should receive asylum as a 
matter of discretion.
    The Departments maintain that DUI convictions, particularly those 
covered by this rule (based on actions that cause serious bodily injury 
or death or that indicate recidivism, along with the risk of harm from 
such recurrent dangerous behavior), constitute serious, dangerous 
activity that threatens community safety. First, the Departments 
reiterate that DUI laws exist, in part, to protect unknowing persons 
from the dangerous people who ``choose to willingly disregard common 
knowledge that their criminal acts endanger others.'' 84 FR at 69651. 
Second, the Supreme Court and other Federal courts have repeatedly 
echoed the gravity of such acts. See Begay v. United States, 553 U.S. 
137, 141 (2008) (``Drunk driving is an extremely dangerous crime.''), 
abrogated on other grounds by Johnson v. United States, 576 U.S. 591 
(2015); United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th 
Cir. 2000) (``[T]he very nature of the crime * * * presents a `serious 
risk of physical injury' to others[.]''); Marmolejo-Campos v. Holder, 
558 F.3d 903, 913 (9th Cir. 2009) (``[T]he dangers of drunk driving are 
well established * * * .''); see also Holloway, 948 F.3d at 173-74 (``A 
crime that presents a potential for danger and risk of harm to self and 
others is `serious.' * * * `There is no question that drunk driving is 
a serious and potentially deadly crime * * * . The imminence of the 
danger posed by drunk drivers exceeds that at issue in other types of 
cases.' '' (quoting Virginia v. Harris, 558 U.S. 978, 979-80 (2009) 
(Roberts, C.J., dissenting from denial of writ of certiorari))).
    It is well within the Departments' authority to condition asylum 
eligibility based on a DUI conviction. The INA authorizes the Attorney 
General and the Secretary to establish by regulation additional 
limitations and conditions on asylum eligibility, INA 208(b)(2)(C), 
(d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)), and Federal courts have 
upheld BIA discretionary denials of asylum based on DUI convictions, 
even in circumstances where a DUI conviction does not constitute a 
particularly serious crime. See, e.g., Kouljinski v. Keisler, 505 F.3d 
534, 543 (6th Cir. 2007). For the reasons above, DUI is a serious crime 
that represents a blatant disregard for the laws and societal values of 
the United States; accordingly, the final rule limits asylum 
eligibility by considering a DUI conviction to be a categorical bar to 
asylum.
    For these reasons, the Departments decline to tailor the bar to 
precisely identify serious conduct, evaluate severity of conduct, 
identify individuals who pose a danger to communities, or provide 
discretion to adjudicators, as suggested by commenters. The Departments 
will no longer afford discretion to adjudicators considering DUI 
convictions in the circumstances defined by this rule; elimination of 
such discretion is, again, well within the Departments' authority. See 
INA 208(b)(2)(C), (d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)).
    Regarding DUI convictions in the context of cancellation of removal 
under INA 240A(b) (8 U.S.C. 1229b(b)), the Departments note that 
cancellation of removal is separate from asylum, and this rule 
contemplates asylum only. See 84 FR at 69640 (stating that the 
Departments propose to amend their respective regulations governing the 
bars to ``asylum eligibility''). Although both forms of relief may 
eventually lead to lawful permanent resident status in the United 
States, cancellation of removal generally applies to a different class 
of aliens, and its conditions and requirements are different from 
asylum relief.\24\ Compare INA 240A(b) (8 U.S.C. 1229b(b)), with INA 
208 (8 U.S.C. 1158)). Cancellation of removal requires ``good moral 
character,'' which asylum relief neither requires nor mentions. Thus, 
references to DUI convictions and their relative effect on the good 
moral character requirement for cancellation of removal are irrelevant 
to asylum eligibility. Commenters conflate two separate forms of relief 
from removal intended for separate populations with separate 
eligibility provisions.
---------------------------------------------------------------------------

    \24\ Generally, cancellation of removal is a discretionary form 
of relief in which the Attorney General may cancel removal and 
adjust status to lawful permanent residence (``LPR'') of an 
otherwise inadmissible or deportable alien who has been physically 
present in the United States for a continuous period of not less 
than 10 years preceding the date of the application; has been a 
person of good moral character during such period; has not been 
convicted of an offense under INA 212(a)(2), 237(a)(2), or 237(a)(3) 
(8 U.S.C. 1182(a)(2), 1226(a)(2), or 1226(a)(3)); and establishes 
that removal would result in exceptional and extremely unusual 
hardship to the applicant's U.S. citizen or LPR spouse, parent, or 
child. See INA 240A(b) (8 U.S.C. 1229b(b)). In contrast, asylum is a 
discretionary benefit that precludes an alien from removal, creates 
a pathway to LPR status and citizenship, and affords various 
ancillary benefits such as work authorization, opportunity for 
certain family members to obtain derivative asylee and LPR status, 
and authorization, in some cases, to receive certain financial 
assistance from the government. See INA 208 (8 U.S.C. 1158). Asylum 
eligibility includes the following factors: The alien must be 
physically present or arrive in the United States, the alien must 
meet the definition of ``refugee'' under INA 101(a)(42)(A) (8 U.S.C. 
1101(a)(42)(A)), and the alien must otherwise be eligible for asylum 
in that no statutory bars or limitations apply. See INA 208(a)(1) (8 
U.S.C. 1158(a)(1)), INA 208(b)(1)(A) (8 U.S.C. 1158(b)(1)(A)), INA 
208(b)(2) (8 U.S.C. 1158(b)(2)) and 8 CFR 1240.8(d); see also 84 FR 
at 69642.
---------------------------------------------------------------------------

    Likewise, the Attorney General's statement in Matter of Castillo-
Perez, 27 I&N Dec. at 671--that multiple DUI convictions were not 
necessarily conclusive evidence of an individual's character--was made 
in regards to eligibility for cancellation of removal, not asylum.\25\ 
Accordingly, that case has no bearing on this rulemaking.
---------------------------------------------------------------------------

    \25\ Nevertheless, the Attorney General in the context of 
discussing eligibility for cancellation of removal as a matter of 
discretion made clear that ``[m]ultiple DUI convictions are a 
serious blemish on a person's record and reflect disregard for the 
safety of others and for the law.'' Castillo-Perez, 27 I&N Dec. at 
670. This reasoning as to the seriousness of DUI offenses supports 
the type of categorical bar at issue here and does not conflict with 
the Departments' determination that DUI offenses should 
categorically bar asylum eligibility.

---------------------------------------------------------------------------

[[Page 67228]]

    In sum, the rulemaking categorically bars asylum eligibility for 
those with one or more DUI convictions in order to protect communities 
from the dangers of driving under the influence. See 84 FR at 69650-51; 
see also 84 FR at 69640. It does not consider other factors of apparent 
concern to commenters, such as financial status, race, or nationality. 
The rulemaking also does not address actual or alleged injustices of 
the criminal justice system, as referenced by the commenters. Such 
considerations are outside the scope of this rulemaking.
f. Battery or Domestic Violence
    Comment: Commenters opposed the proposed bar to asylum based on 
domestic assault or battery, stalking, or child abuse. Broadly, 
commenters opposed a bar to asylum based on ``mere allegations of 
conduct without any adjudication of guilt'' for several reasons. First, 
commenters stated that a bar based on conduct, not convictions, 
violates INA 208(b)(2)(A) (8 U.S.C. 1158(b)(2)(A)), which bars 
noncitizens who, ``having been convicted by a final judgment of a 
particularly serious crime, constitute[ ] a danger to the community of 
the United States.'' In accordance with the plain text and judicial 
interpretation of this section of the Act, commenters asserted, the 
statute prohibits application of the ``particularly serious crime'' bar 
based only on non-adjudicated facts, thereby precluding separation of 
``the seriousness determination from the conviction.'' Accordingly, 
commenters stated that the proposed application of the ``particularly 
serious crime'' bar based on conduct involving domestic assault or 
battery directly contradicts the statute, which requires a final 
judgment of conviction. Commenters also alleged that the proposed rule 
violates the Supreme Court's holding that ``conviction'' refers to the 
``crime as generally committed,'' rather than the actual conduct. See 
Sessions v. Dimaya, 138 S. Ct. 1204, 1217 (2018); see also Delgado, 648 
F.3d at 1109 n.1 (Reinhardt, J., concurring in part and concurring in 
the judgment). One commenter asserted that the statute ``only bars 
asylum seekers for alleged conduct in exceptional circumstances like 
potential terrorist activity or persecution of others. * * * [C]onduct-
based asylum bars should be used only in very limited circumstances, 
and in this case should not be expanded.''
    Relatedly, commenters raised constitutional concerns. Commenters 
cited constitutional principles that ``individuals have a right to 
defend themselves against criminal charges and are presumed innocent 
until proven guilty. Individuals should not be excluded from asylum 
eligibility based on allegations of criminal misconduct that have not 
been proven in a court of law.'' Accordingly, commenters opposed the 
NPRM because it ``deprives the individual the opportunity to challenge 
the alleged behavior and does away with the presumption of innocence.'' 
More specifically, a commenter claimed that, under the NPRM, an 
incident and subsequent arrest related to domestic assault or battery 
would trigger an inquiry into the alien's conduct, thereby undermining 
the criminal justice system and constitutional due process protections 
for criminal defendants who may not have access to counsel. The 
commenter alleged that, regardless of whether the alien was convicted 
of the offense, the alien may still be barred from asylum relief 
following an adjudicator's independent inquiry into the incident.
    Commenters also stated that a bar based on conduct alone, 
especially in the context of domestic assault or battery, could 
disproportionately penalize innocent individuals and victims, and 
subsequently their spouses and children, who may be denied immigration 
status or be left with an abuser. First, commenters explained that 
specific barriers--including discrimination, community ostracism, 
community or religious norms, or lack of eligibility for certain 
services--deter aliens from even initially contacting law enforcement. 
Second, if law enforcement was involved, commenters expressed concern 
about cross arrests in which both the perpetrator of abuse and the 
victim are arrested but no clear determinations of fault are made. 
Commenters stated that ``authorizing asylum adjudicators to determine 
the primary perpetrator of domestic assault, in the absence of a 
judicial determination, unfairly prejudices survivors who are wrongly 
arrested in the course of police intervention to domestic 
disturbances.'' Further, commenters alleged that ``identifying the 
primary aggressor is not always consistently nor correctly conducted,'' 
especially if survivors acted in self-defense. Commenters also 
expressed concern that survivors of domestic assault or battery are 
oftentimes vulnerable, with the result that a bar based on conduct 
alone could affect populations with overlapping vulnerabilities. For 
example, commenters specifically referenced lesbian, gay, bisexual, 
transgender, and queer or questioning (``LGBTQ'') survivors, who are 
already allegedly prone to experience inaction by law enforcement in 
response to domestic violence, and limited English proficiency 
individuals, who may be unable to fully describe the abuse to police 
officers, prompting officers to then use the offenses' perpetrators for 
interpretation.
    One commenter expressed concern that the NPRM establishes a lower 
standard by which admission may be denied because other forms of 
admission require an actual conviction or factual admission to form the 
basis of denial. Accordingly, the commenter stated that similarly 
situated persons would be treated inconsistently based upon the 
mechanism for admission that they choose. This commenter also asserted 
that U nonimmigrant status and Violence Against Women Act of 1994, 
Public Law 103-322, 108 Stat. 1902 (``VAWA'') relief are insufficient 
alternative forms of relief because they generally require 
acknowledgement from a local authority, negating the need for a fact-
finding hearing. Presumably then, most individuals affected by the NPRM 
would be ineligible for these alternative forms of relief. In addition, 
the commenter noted that granting those benefits is entirely different 
from making an asylum applicant overcome an asylum bar.
    Commenters also identified unintended consequences of the proposed 
rule, explaining that individuals may act maliciously. One commenter 
suggested that individuals may file for baseless temporary restraining 
orders or protective orders to try to block domestic violence victims' 
applications for employment authorization documents following an asylum 
application. Another commenter speculated that abusers may falsely 
accuse or frame survivors of domestic violence to terrorize or control 
them. One commenter asserted that survivors may be hesitant to report 
abuse or request a restraining order if it could negatively impact the 
immigration status of the perpetrator, especially in situations where 
they share a child. Another commenter stated that it would 
``undoubtedly embolden[ ] perpetrators more and len[d] more strength to 
otherwise weak accusations.''
    Some commenters generally stated that the NPRM too broadly 
categorized domestic violence offenses as particularly serious crimes. 
Relatedly, another commenter stated that the bar is too vague and 
requires adjudicators to

[[Page 67229]]

become experts in domestic criminal law jurisdictions of every State to 
determine whether, for example, conduct ``amounts to'' domestic assault 
or battery, stalking, or child abuse. Further, the commenter noted that 
the NPRM's definition of battery and extreme cruelty is different from 
the various States' criminal laws, which creates inconsistent 
application. That commenter also alleged that the proposed exceptions 
for individuals who have been battered or subjected to extreme cruelty 
are ``insufficient, vague, and place[d] a high burden on victims.'' 
Another commenter asserted that it is ``unclear how `serious' will be 
defined, and whether and how detrimental and potentially false 
information provided by abusers will be considered in decision-
making.'' One commenter suggested that ``the presentation of evidence 
under oath by adverse parties is a more appropriate forum for 
adjudications as to whether or not domestic violence took place, and 
will likely lead to fewer determinations that will cruelly strip 
immigrant survivors of their right to seek asylum.'' Another commenter 
asserted that the NPRM does not include a framework or limits to guide 
an adjudicator's inquiry, especially in the context of false 
accusations. For these reasons, commenters opposed the NPRM because it 
allegedly would cause inconsistent and unjust results.
    Some commenters claimed that the proposed bar is unnecessary 
because the current bars for those with domestic violence convictions 
or aggravated felony convictions allow for ``the denial of asylum 
protection for these types of crimes when appropriate,'' whereas the 
proposed bar denies asylum protection for vulnerable individuals. 
Accordingly, commenters believed that ``immigration judges should 
retain discretion in these situations and be permitted to grant relief 
in situations where the asylum seeker is not at fault.''
    Many commenters alleged that the proposed bar conflicts with VAWA. 
One commenter alleged that the NPRM ``distorts language contained in 
VAWA * * * in order to create barriers for asylum seekers.'' Commenters 
stated that VAWA gives discretion to adjudicators ``based on a number 
of factors and circumstances.'' Accordingly, commenters stated that the 
proposed ``blunt approach'' conflicts with VAWA and lacks ``evidence-
based justification for treating asylum seekers differently.'' 
Commenters were also concerned with the lack of ``analogous protections 
in the asylum context to protect a survivor from the devastating 
effects of a vindictive abuser's unfounded allegations.''
    Commenters also disagreed with the proposed approach towards the 
burden of proof as compared to VAWA. Because of the ``vastly different 
interests at stake,'' commenters stated that VAWA's low burden of proof 
is necessary for several reasons: More harm results from erroneously 
denying relief than erroneously granting relief, a lower standard 
maximizes the self-petitioner's confidentiality and safety, certain 
evidence may be inaccessible to a victim because the abuser blocked 
access, and no liberty interests are implicated for alleged 
perpetrators. By contrast, commenters asserted, a ``rigorous burden of 
proof is appropriate when potentially barring applicants from asylum,'' 
as the NPRM did, because ``[t]he consequences of invoking the bar are 
dire, with the applicant's life and safety hanging in the balance.''
    Commenters also disagreed that the exception for asylum applicants 
who demonstrate eligibility for a waiver under INA 237(a)(7)(A) (8 
U.S.C. 1227(a)(7)(A)) sufficiently protects survivors deemed not to be 
the primary aggressors. Commenters noted that survivors may be unaware 
of their eligibility for a waiver, unaware that such a waiver exists, 
or too fearful to apply.
    Commenters also claimed that the waiver application process turns 
an otherwise non-adversarial inquiry into a ``multi-factor, highly 
specific inquiry into culpability based on circumstances that may be 
very difficult for an asylum seeker to prove--especially if proceeding 
without counsel and with limited English proficiency.'' Commenters also 
questioned whether adjudicators could conduct such an inquiry and 
correctly apply the exception because they are removed from the 
immediate circumstances surrounding an incident. Accordingly, 
commenters alleged that the waiver fails to adequately protect 
survivors and, in some cases, inflicts harm.
    Response: First, commenters are incorrect that the rule's 
conditioning of asylum eligibility on conduct violated INA 208(b)(2)(A) 
(8 U.S.C. 1158(b)(2)(A)) because that section requires a final judgment 
of conviction. As discussed above, this rule, like the proposed rule, 
designates the listed offenses as additional limitations on asylum 
eligibility pursuant to INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)).\26\ 
See 8 CFR 208.13(c)(6), 1208.13(c)(6). This section provides authority 
to the Attorney General and the Secretary to condition or limit asylum 
eligibility, consistent with the statute, but does not require any sort 
of conviction. Accordingly, the bar is consistent with the plain text 
of that section, and the Supreme Court cases cited by commenters are 
not specifically relevant.
---------------------------------------------------------------------------

    \26\ The proposed rule preamble cited both the authority at 
section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 1158(b)(2)(B)(ii)) to 
designate offenses as a particularly serious crime and the authority 
at section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) to 
establish additional limitations on asylum eligibility in support of 
the inclusion of these domestic violence-related bars at 8 CFR 
208.13(c)(6)(v), (vii), 1208.13(c)(6)(v), (vii). See 84 FR at 69651-
53. However, as stated in the proposed rule, the authority at 
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) provides 
underlying authority for all these provisions. 84 FR at 69652 
(noting that, even if all of the proposed domestic violence offenses 
would not qualify as particularly serious crimes, convictions for 
such offenses--as well as engaging in conduct involving domestic 
violence that does not result in a conviction--``should be a basis 
for ineligibility for asylum under section 208(b)(2)(C) of the 
INA''). The Departments acknowledge that the proposed rule stated 
that the Attorney General and the Secretary were, in part, 
``[r]elying on the authority under section 208(b)(2)(B)(ii) of the 
INA.'' Id. at 69651. But the regulatory text of the new bar does not 
actually designate any additional offense as ``particularly 
serious.'' The Departments thus clarify that the current bars are an 
exercise of the authority granted by section 208(b)(2)(C), and that 
the discussion of the ``particularly serious crime'' bar merely 
helps illustrate how the new bars are ``consistent with'' the 
statutory asylum scheme. Further discussion of the interaction of 
the rule with the ``particularly serious crime'' bar is set out 
above in section II.C.2.a.i.
---------------------------------------------------------------------------

    The Departments disagree with the comment that conduct-based bars 
should be used only in ``very limited circumstances,'' not including 
domestic assault or battery, stalking, or child abuse. As explained in 
the NPRM, the Departments believe that domestic violence is 
``particularly reprehensible because the perpetrator takes advantage of 
an `especially vulnerable' victim.'' 84 FR at 69652 (quoting Carillo v. 
Holder, 781 F.3d 1155, 1159 (9th Cir. 2015)). Accordingly, the 
Departments emphasize that such conduct must not be tolerated in the 
United States, and the discretionary benefit of asylum, along with the 
numerous ancillary benefits that follow, will not be granted to aliens 
who engage in such acts. See id. Further, the statute already 
contemplates conduct-based bars in sections 208(b)(2)(A)(i), (iii)-(iv) 
of the Act (8 U.S.C. 1158(b)(2)(A)(i), (iii)-(iv)),\27\ and the 
Departments believe it is

[[Page 67230]]

appropriate to also enforce an asylum bar based on conduct involving 
domestic battery or extreme cruelty.
---------------------------------------------------------------------------

    \27\ These provisions provide as follows: (1) INA 
208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i)) (``the alien ordered, 
incited, assisted, or otherwise participated in the persecution of 
any person on account of race, religion, nationality, membership in 
a particular social group, or political opinion''); (2) INA 
208(b)(2)(A)(iii) (8 U.S.C. 1158(b)(2)(A)(iii)) (``there are serious 
reasons for believing that the alien has committed a serious 
nonpolitical crime outside the United States prior to the arrival of 
the alien in the United States''); and (3) INA 208(b)(2)(A)(iv) (8 
U.S.C. 1158(b)(2)(A)(iv)) (``there are reasonable grounds for 
regarding the alien as a danger to the security of the United 
States'').
---------------------------------------------------------------------------

    The rule does not violate the constitutional rights of aliens, nor 
does it offend constitutional principles referenced by the commenters. 
First, commenters incorrectly equated denial of a discretionary benefit 
to ``criminal charges.'' The Departments will not bring ``criminal 
charges'' against aliens in this context; rather, the Departments will 
deny asylum based on certain convictions and conduct, in some limited 
instances, as stated in the NPRM and authorized by statute. See 84 FR 
at 69640.
    The Departments disagree that the rule undermines the criminal 
justice system and constitutional due process protections in either the 
civil or criminal context. As an initial matter, aliens have no liberty 
interest in the discretionary benefit of asylum. See Yuen Jin v. 
Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008); see also Ticoalu v. 
Gonzales, 472 F.3d 8, 11 (1st Cir. 2006) (citing DaCosta v. Gonzales, 
449 F.3d 45, 49-50 (1st Cir. 2006)); cf. Hernandez v. Sessions, 884 
F.3d 107, 112 (2d Cir. 2018) (stating, in the context of duress waivers 
to the material support bar, that ``aliens have no constitutionally-
protected `liberty or property interest' in such a discretionary grant 
of relief for which they are otherwise statutorily ineligible''); 
Obleshchenko v. Ashcroft, 392 F.3d 970, 971 (8th Cir. 2004) (finding 
that there is no right to effective assistance of counsel with regard 
to an asylum claim because an alien does not have a liberty interest in 
a statutorily created, discretionary form of relief, but distinguishing 
withholding of removal). In other words, ``[t]here is no constitutional 
right to asylum per se.'' Mudric v. Mukasey, 469 F.3d 94, 98 (3d Cir. 
2006). Further, although aliens may choose to be represented by 
counsel, the government is not required to appoint counsel. INA 292 (8 
U.S.C. 1362).
    Second, the Departments reiterate that Congress authorized the 
Attorney General and the Secretary to, by regulation, limit and 
condition asylum eligibility under INA 208(b)(2)(C), (d)(5)(B) (8 
U.S.C. 1158(b)(2)(C), (d)(5)(B)). The Departments exercise such 
authority in promulgating the provisions of the rule, 84 FR at 69652, 
that allow adjudicators to inquire into allegations of conduct to 
determine whether the conduct constitutes battery or extreme cruelty 
barring asylum, similar to current statutory provisions requiring 
inquiry into other conduct-based allegations that may bar asylum. See 
INA 208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i)); see also Meng v. 
Holder, 770 F.3d 1071, 1076 (2d Cir. 2014) (considering evidence in the 
record to determine whether it supported the agency finding that an 
alien's conduct amounted to persecution, thus triggering the persecutor 
bar under INA 208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i))). A similar 
inquiry is also conducted under INA 240A(b)(2)(A) (8 U.S.C. 
1229b(b)(2)(A)) to determine immigration benefits for aliens who are 
battered or subjected to extreme cruelty. Hence, promulgating an 
additional conduct-based bar to asylum eligibility, even without a 
conviction, is consistent with and therefore not necessarily precluded 
by the INA.
    The Departments disagree that the rule disproportionately penalizes 
innocent individuals, victims, and their spouses or children. First, 
the Departments emphasize the exceptions for aliens who have been 
battered or subjected to extreme cruelty and aliens who were not the 
primary perpetrators of violence in the relationship. See 8 CFR 
208.13(c)(6)(v)(C), (vii)(F), 1208.13(c)(6)(v)(C), (vii)(F) (proposed). 
This exception protects qualified innocent individuals and their 
spouses or children from asylum ineligibility by providing that 
individuals whose crimes or conduct were based on ``grounds for 
deportability under section 237(a)(2)(E)(i) through (ii) of the Act [8 
U.S.C. 1227(a)(2)(E)(i)-(ii)]'' would nevertheless not be rendered 
ineligible for asylum if such individuals ``would be described in 
section 237(a)(7)(A) of the Act [8 U.S.C. 1227(a)(7)(A)].'' See 8 CFR 
208.13(c)(6)(v)(C), (vii)(F), 1208.13(c)(6)(v)(C), (vii)(F) (proposed). 
Section 237(a)(7)(A) of the Act (8 U.S.C. 1227(a)(7)(A)), in turn, 
describes individuals who: (1) Were battered or subject to extreme 
cruelty; (2) were not the primary perpetrator of violence in the 
relationship; and (3) whose convictions were predicated upon conduct 
where the individual acted in self-defense, violated a protection order 
intended to protect that individual, or where the crime either did not 
result in serious bodily injury or was connected to the individual 
having been battered or subjected to extreme cruelty.
    The Departments disagree with commenters' concerns that the 
provided exceptions are insufficient. To the extent that the commenters 
are concerned that individuals might not be able to avail themselves of 
the exception because of a lack of awareness of the waiver or their 
eligibility for it, such concerns are unfounded. Just as aliens are 
currently informed of eligibility and other asylum requirements through 
the Act and regulations; the instructions to the I-589 application and 
the form itself; representatives or other legal assistance projects; or 
other sources, aliens will similarly be informed of the existence of 
this exception. The Departments encourage individuals to contact law 
enforcement if they experience domestic violence; however, potential 
resolutions to the sort of specific barriers referenced by the 
commenters are outside the scope of this rulemaking. It is the 
Departments' aim, however, that the exception to the bar would reduce 
such barriers.
    In regard to commenters' concerns about cross arrests with no 
definite determinations made, the Departments note that the 
adjudicatory inquiry into whether acts constitute battery or extreme 
cruelty is in no way novel. See, e.g., INA 240A(b)(2)(A) (8 U.S.C. 
1229b(b)(2)(A)) (providing for similar adjudicatory inquiry in the 
context of cancellation of removal). The Departments are confident in 
adjudicators' continued ability to conduct such inquiries, which 
include properly applying exceptions for innocent individuals. The 
Departments acknowledge that survivors are oftentimes vulnerable 
individuals. The bar and related exception are specifically promulgated 
to ensure that aliens with convictions for or who engage in conduct 
involving domestic assault or battery are ineligible for asylum, 
thereby reducing subsequent effects on vulnerable individuals.
    The Departments may predicate asylum eligibility based on certain 
convictions or conduct under the statutory authority that allows them 
to limit or condition asylum eligibility. See INA 208(b)(2)(C), 
(d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)). Aliens may apply for 
immigration benefits for which they are eligible, and the INA affords 
various ancillary benefits in accordance with the specific relief 
granted. In other words, aliens are generally free to apply (or not to 
apply) for benefits, and then the relevant provisions of the statute 
are consistently applied. See 8 CFR 208.1(a)(1), 1208.1(a)(1). 
Accordingly, aliens may be ``similarly situated,'' as phrased by the 
commenters, but whether ``similarly situated'' aliens choose to apply 
for the same benefits under the INA is not a decision for the 
Departments to make.
    The Departments emphasize that the sufficiency of alternative forms 
of protection or relief, such as U

[[Page 67231]]

nonimmigrant status and VAWA relief referenced by the commenters, 
varies in accordance with the unique facts in each case. For example, 
although some aliens may be unable to obtain the necessary law 
enforcement certification, many others are able to successfully meet 
all the necessary requirements. See 8 CFR 214.14. The Departments, 
however, reiterate that the new bar for convictions or conduct 
involving domestic assault or battery, stalking, or child abuse, 
contains an exception that is intended to ensure that innocent victims 
of violence are not rendered ineligible for asylum relief. See 8 CFR 
208.13(c)(6)(v)(C), (vii)(F), 1208.13(c)(6)(v)(C), (vii)(F) (proposed). 
This exception demonstrates both the Departments' concern for domestic 
violence victims and their consideration of how best to address those 
victims' circumstances, and the Departments have concluded that--
especially in light of countervailing considerations such as the need 
to protect the United States from the harms associated with domestic 
abusers--this exception is sufficient.
    The Departments acknowledge the commenters' concerns regarding 
unintended consequences stemming from the rule. The Departments, 
however, reiterate that mere allegations alone would not automatically 
bar asylum eligibility. Rather, an adjudicator will consider the 
alleged conduct and make a determination on whether it amounts to 
battery or extreme cruelty, thereby triggering the bar to asylum 
eligibility. See 8 CFR 208.13(c)(6)(vii),1208.13(c)(6)(vii) (proposed); 
see also 84 FR at 69652. Similar considerations are currently utilized 
in other immigration contexts, including other asylum provisions (INA 
208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i)) and removability (INA 
237(a)(1)(E) (8 U.S.C. 1227(a)(1)(E)). In conjunction with the 
exception at 8 CFR 208.13(c)(6)(v)(C), (vii)(F) and 
1208.13(c)(6)(v)(C), (vii)(F) (proposed), the Departments believe this 
inquiry is properly used in this context as well.
    Commenters' allegations that the bar is too vague or broad to cover 
only offenses that constitute ``particularly serious crimes'' are 
irrelevant because, although the Departments possess statutory 
authority under section 208(b)(2)(B)(ii) of the Act (8 U.S.C. 
1158(b)(2)(B)(ii) to designate a ``particularly serious crime,'' the 
Departments are also authorized to establish additional limitations or 
conditions on asylum. INA 208(b)(2)(C), (d)(5)(B) (8 U.S.C. 
1158(b)(2)(C), (d)(5)(B)). The only requirement is that these 
limitations or conditions must be consistent with section 208 of the 
Act (8 U.S.C. 1158). Nothing in section 208 of the Act (8 U.S.C. 1158) 
conflicts with this rule.
    The Departments also disagree with commenters who alleged that the 
rule requires adjudicators to have expertise in all State 
jurisdictions. The rule requires adjudicators to engage in a fact-based 
inquiry, and that inquiry accounts for the differences in State law 
regarding criminal convictions for offenses related to domestic 
violence. See 84 FR at 69652. Further, even if adjudicators must 
interpret and apply law from various jurisdictions, the Departments are 
confident that adjudicators will properly do so, as they currently do 
in other immigration contexts. See, e.g., INA 208(b)(2)(A)(i) (8 U.S.C. 
1158(b)(2)(A)(i)) (other asylum provisions); INA 237(a)(1)(E) (8 U.S.C. 
1227(a)(1)(E)) (removability).
    The Departments disagree that the exception is ``insufficient'' or 
``vague'' or ``place[s] a high burden on victims.'' The exception 
directly references and adapts the statutory requirements in INA 
237(a)(7)(A) (8 U.S.C. 1227(a)(7)(A)). In the interest of consistency 
and protection afforded to victims since its enactment, the exceptions 
to this categorical bar align with those enacted by Congress.
    The Departments decline to evaluate the commenters' various 
examples. A proper inquiry is fact-based in nature; absent the entirety 
of facts for each unique case, various examples cannot be adequately 
addressed. The BIA has deemed some domestic violence offenses as 
``particularly serious crimes.'' See 84 FR at 69652 (providing such 
examples of BIA decisions). As explained in the proposed rule, that 
case-by-case approach fails to include all of the offenses enumerated 
in the rule, and it does not include conduct related to domestic 
violence. Id. Accordingly, the Departments believe this rule-based 
approach is preferable because it will facilitate fair and just 
adjudicatory results.
    In addition, the Departments disagree with commenters that the bar 
is unnecessary. The Departments believe the bar and its exception 
establish important protections for vulnerable individuals, including 
those not at fault, and clarify the Departments' views on such 
reprehensible conduct. See id.
    The rule does not conflict with or distort language in VAWA. The 
rule is solely applicable to eligibility for the discretionary benefit 
of asylum. The rule does not expound upon or specifically supplement 
VAWA. Rather, the rule adds categorical bars to asylum eligibility, 
clarifies the effect of certain criminal convictions--and, in one 
instance, abusive conduct that may not necessarily involve a criminal 
conviction--on asylum eligibility, and eliminates automatic 
reconsideration of discretionary denials of asylum. See generally 84 FR 
at 69640. The rule excludes from a grant of asylum and its many 
ancillary benefits aliens who have been convicted of certain offenses 
or engaged in certain conduct. Contrary to the commenters' remarks, the 
rule is not intended to exclude survivors of domestic violence; in 
fact, the preamble to the rule, 84 FR at 69652, provided an extensive 
explanation of the Departments' opposition to domestic violence, 
including an overview of various legislative and regulatory actions 
that seek to protect victims and to convey strong opposition to 
domestic violence. Moreover, the rule is fully consonant with other 
regulations, see, e.g., 8 CFR 204.2(c)(1)(i)(E), designed to ensure 
that those who commit acts of domestic violence, even if they are not 
convicted, do not distort or undermine the immigration laws of the 
United States. Accordingly, although VAWA and the rule may not use the 
same approach, both are instrumental in the government's efforts to 
protect victims from domestic violence in the United States.
    In that vein, the rule provides protection to victims of domestic 
violence by way of the exceptions to the bar in 8 CFR 
208.13(c)(6)(v)(C), (vii)(F), 1208.13(c)(6)(v)(C), (vii)(F) (proposed). 
The rule also conveys the Departments' opposition to domestic violence 
by denying asylum eligibility to aliens convicted of or who have 
engaged in such conduct so that abusers may not stay in the United 
States. See 84 FR at 69652.
    Addressing commenters' concerns that the ``life and safety'' of 
aliens were ``hanging in the balance,'' the Departments reiterate the 
alternative forms of relief or protection that may be available to 
applicants who are ineligible for asylum under the rulemaking--
applicants may still apply for statutory withholding of removal or CAT 
protection. See 84 FR at 69642. Accordingly, the Departments disagree 
that a ``vigorous burden of proof'' is necessary in this context. On 
the contrary, asylum is a discretionary benefit in which the alien 
bears the burden of proof to demonstrate eligibility under the 
conditions and limitations Congress authorized the Departments to 
establish. See INA 208(b)(1)(A) (8 U.S.C. 1158(b)(1)(A)).
    To clarify the exception in 8 CFR 208.13(c)(6)(v)(C), (vii)(F) and 
1208.13(c)(6)(v)(C), (vii)(F) (proposed),

[[Page 67232]]

applicants need not be granted a waiver under INA 237(a)(7)(A) (8 
U.S.C. 1227(a)(7)(A)) to qualify for the exception. Rather, applicants 
must only satisfy one of the following criteria contained in the Act to 
the satisfaction of an adjudicator: (1) The applicant was acting in 
self-defense; (2) the applicant was found to have violated a protection 
order intended to protect the applicant; or (3) the applicant 
committed, was arrested for, was convicted of, or pled guilty to 
committing a crime that did not result in serious bodily injury and 
where there was a connection between the crime and the applicant's 
having been battered or subjected to extreme cruelty. 8 CFR 
208.13(c)(6)(v)(C), (vii)(F), 1208.13(c)(6)(v)(C), (vii)(F) (proposed); 
see also 84 FR at 69653. Together, the proposed rule and this final 
rule serve, in part, as notice to the public that such provisions 
exist--including the exception for applicants who are themselves 
victims. See 84 FR at 69640 (stating that this section of the Federal 
Register contains notices to the public of the proposed issuance of 
rules and regulations). Accordingly, just like other immigration 
benefits and relevant exceptions, aliens are on notice upon publication 
in the Federal Register.
    Finally, the exceptions provided by 8 CFR 208.13(c)(6)(v)(C), 
(vii)(F) and 1208.13(c)(6)(v)(C), (vii)(F) do not create an adversarial 
process. These provisions mirror the text of the statute except that 
aliens only need to satisfy the criteria, not be actually granted an 
exception. In this way, the exceptions as stated in the rule are 
arguably less stringent than the statutory exception. Further, the 
Departments remain confident that adjudicators will continue to 
properly apply the exceptions, regardless of commenters' concerns of 
how far removed adjudicators may be from the immediate circumstances of 
the conduct at issue. The exceptions are not intended to mitigate harm 
already suffered by survivors; rather, it is the Departments' hope that 
the exceptions ensure that the conduct of applicants who are actually 
victims of domestic violence does not bar their asylum eligibility. 
Accordingly, the Departments strongly disagree that the exceptions will 
inflict harm on survivors, as commenters alleged.
g. Document Fraud Misdemeanors
    Comment: Numerous commenters opposed implementing a categorical 
limitation on eligibility for asylum for individuals convicted of 
Federal, State, tribal, or local misdemeanor offenses related to 
document fraud, stating that it would result in denial of meritorious 
asylum claims. See 8 CFR 208.13(c)(6)(vi)(B)(1), 
1208.13(c)(6)(vi)(B)(1) (proposed). Commenters stated that some asylum 
applicants have necessarily and justifiably used false documents to 
escape persecution. Commenters stated that the NPRM ignored common 
circumstances related to convictions involving document fraud, such as 
when individuals flee their countries of origin with no belongings and 
``must rely on informal networks to navigate their new circumstances.'' 
Some commenters suggested that applicants' use of fraudulent documents 
in entering the United States can be linked to their financial means 
but did not offer further detail on that position. Commenters stated 
that it was ``arbitrary and irrational'' for the Departments to suggest 
that such conduct would render somebody unfit to remain in the United 
States or a threat to public safety.
    Commenters also suggested that the proposed limitation contravened 
long-standing case law establishing that violations of the law arising 
from an asylum applicants' manner of flight should be just one of many 
factors to be considered in the exercise of discretion. Matter of Pula, 
19 I&N Dec. at 474. Some commenters objected to the proposed limitation 
because it allegedly did not provide a sufficient exception for those 
who have unknowingly engaged in such conduct, such as those who have 
unknowingly obtained false documents from bad actors like unscrupulous 
notarios. Other commenters opposed the proposed limitation because it 
did not provide a sufficient exception for those who must use false 
documentation to flee persecution.
    Some commenters recognized the NPRM's proposed exception to this 
limitation on asylum eligibility.\28\ Commenters opined that the 
proposed exception was not sufficient, given the consequences for those 
who do not fit within the exception. Commenters stated that asylum 
seekers who obtain false documents when passing through a third country 
or who may be unable to prove that they fall within an exception would 
be adversely affected by the proposed limitation.
---------------------------------------------------------------------------

    \28\ See 8 CFR 208.13(c)(6)(vi)(B)(1) and 
1208.13(c)(6)(vi)(B)(1), which provide that a misdemeanor offense 
related to document fraud would bar eligibility for asylum unless 
the alien can establish (1) that the conviction resulted from 
circumstances showing that the document was presented before 
boarding a common carrier, (2) that the document related to the 
alien's eligibility to enter the United States, (3) that the alien 
used the document to depart a country in which the alien has claimed 
a fear of persecution, and (4) that the alien claimed a fear of 
persecution without delay upon presenting himself or herself to an 
immigration officer upon arrival at a United States port of entry.
---------------------------------------------------------------------------

    Some commenters stated that the proposed exception was unrealistic 
given circumstances that could prevent asylum seekers from immediately 
claiming a fear of persecution, such as mistrust of government 
officials, language barriers, or trauma-induced barriers.
    At least one commenter noted that traffickers routinely provide 
victims with false documents for crossing borders and that trafficking 
victims may be unable to explain the circumstances of their 
documentation to law enforcement. The commenter also noted that 
traffickers regularly confiscate, hide, or destroy their victims' 
documents to exert control over their victims and that trafficking 
victims often lack documentation. The commenter opined that trafficking 
victims were thus particularly vulnerable to bad actors who falsely 
claim that they can prepare legal documentation.
    Commenters stated that the NPRM did not properly consider that some 
asylum seekers would be required to, or inadvertently, use false 
documents in the United States while their proceedings were pending, 
for example, in order to drive or work. Commenters suggested that 
continued availability of asylum protection to low-wage immigrant 
workers could encourage them to ``step out of the shadows'' when faced 
with workplace exploitation, dangers, and discrimination. By contrast, 
commenters stated, a categorical limitation would further incentivize 
some employers to hire and exploit undocumented workers where employers 
use aliens' immigration status against them and force asylum seekers 
``deeper into the dangerous informal economy.'' At least one commenter 
stated that DHS recently made it harder for asylum seekers with pending 
applications to survive without using fraudulent documents by proposing 
a rule that would extend the waiting period for asylum seekers to apply 
for work authorization from 180 days to one year.
    At least one commenter suggested that the proposed limitation 
related to document-fraud offenses undermined an important policy 
objective to encourage truthful testimony by asylum seekers.
    At least one commenter stated that there was a discrepancy between 
the Departments' reasoning that the use of fraudulent documents ``so 
strongly undermines government integrity that it would be inappropriate 
to allow an individual convicted of such an offense

[[Page 67233]]

to obtain the discretionary benefit of asylum'' and possible 
availability of adjustment of status for a document-fraud-related 
conviction if the conviction qualified as a petty offense or if the 
individual obtained a waiver of inadmissibility.
    Response: The Departments have considered all comments and 
recommendations submitted regarding the bar to asylum eligibility for 
aliens with misdemeanor document fraud convictions. Despite commenters' 
concerns, the Departments continue to believe this exception is 
consistent with distinctions regarding certain document-related 
offenses as recognized by the BIA, Matter of Pula, 19 I&N Dec. at 474-
75; existing statutes, see INA 274C(a)(6) and (d)(7) (8 U.S.C. 
1324c(a)(6) and (d)(7)); and existing regulations, see 8 CFR 270.2(j) 
and 1270.2(j), as noted in the NPRM. See 84 FR at 69653; cf. Matter of 
Kasinga, 21 I&N Dec. 357, 368 (BIA 1996) (concluding that possession of 
a fraudulent passport was not a significant adverse factor where the 
applicant ``did not attempt to use the false passport to enter'' the 
United States, but instead ``told the immigration inspector the 
truth''). The Departments will not amend the bar as laid out in the 
proposed rule and will continue to rely on the justifications provided 
in the NPRM. See 84 FR at 69653.\29\
---------------------------------------------------------------------------

    \29\ The Departments also reject some comments as wholly 
unfounded. For example, there is no logical or factual indication 
that the rule, combined with a criminal conviction for document 
fraud necessary for the bar to apply, would subsequently cause an 
alien to commit another crime--i.e., perjury--by testifying 
untruthfully while in immigration proceedings.
---------------------------------------------------------------------------

    Further, offenses related to fraudulent documents that carry a 
potential sentence of at least one year are already aggravated 
felonies, and thus are disqualifying offenses for purposes of asylum. 
INA 101(a)(43)(P) (8 U.S.C. 1101(a)(43)(P)). Courts have recognized 
that proper identity documents are essential to the functioning of 
immigration proceedings. See Noriega-Perez v. United States, 179 F.3d 
1166, 1173-74 (9th Cir. 1999). Furthermore, in passing the REAL ID Act 
of 2005, Public Law 109-13, 119 Stat. 231, Congress acknowledged the 
critical role that identity documents play in protecting national 
security and public safety.
    Regarding the commenters' concerns for aliens who may use 
fraudulent documents as a means to flee persecution or other harms, the 
Departments reiterate the exception for this bar in the rule for aliens 
who can establish (1) that the conviction resulted from circumstances 
showing that the document was presented before boarding a common 
carrier, (2) that the document related to the alien's eligibility to 
enter the United States, (3) that the alien used the document to depart 
a country in which the alien has claimed a fear of persecution, and (4) 
that the alien claimed a fear of persecution without delay upon 
presenting himself or herself to an immigration officer upon arrival at 
a United States port of entry. 8 CFR 208.13(c)(6)(vi)(B)(1), 
1208.13(c)(6)(vi)(B)(1).
    The Departments agree with commenters that there are certain, 
limited circumstances under which an individual with a legitimate 
asylum claim might need to utilize fraudulent documents during his or 
her flight to the United States, and the Departments provided this 
exception to the bar to account for such circumstances. The Departments 
believe that the exception, as proposed in the NPRM, is sufficient to 
allow individuals who may have committed document-fraud offenses 
directly related to their legitimate claims of fear to apply for 
asylum. The Departments believe that this exception, which is 
consistent with the exception in INA 274C(d)(7), 8 U.S.C. 1324c(d)(7), 
allowing the Attorney General to waive civil money penalties for 
document fraud to an alien granted asylum or statutory withholding of 
removal, strikes the appropriate balance between recognizing the 
seriousness of document-fraud-related offenses, including the threat 
they pose to a functioning asylum system, and the very limited 
instances where a conviction for such an offense should not bar an 
applicant from eligibility for asylum.
    The Departments disagree with concerns that aliens with viable 
asylum claims might not be able to either immediately disclose their 
fear of return at a port-of-entry or prove that they fall within an 
exception to the bar. DHS has, by regulation, established procedures 
for determining whether individuals who present themselves at the 
border have a credible fear of persecution or torture, 8 CFR 208.30, 
and officers who conduct the interviews are required by regulation to 
undergo ``special training in international human rights law, non-
adversarial interview techniques, and other relevant national and 
international refugee laws and principles,'' 8 CFR 208.1(b). Asylum 
officers are required to determine that the alien is able to 
participate effectively in his or her interview before proceeding, 8 
CFR 208.30(d)(1), (5), and verify that the alien has received 
information about the credible fear process, 8 CFR 208.30(d)(2). The 
alien may consult with others prior to his or her interview. 8 CFR 
208.30(d)(4). Such regulations are intended to recognize and 
accommodate the sensitive nature of fear-based claims and to foster an 
environment in which aliens may express their claims to an immigration 
officer.
    The Departments disagree with the commenters that this bar to 
asylum is inconsistent with case law, particularly Matter of Pula. See 
19 I&N Dec. at 474-75. The Departments first note that Matter of Pula 
pertains to how adjudicators should weigh discretionary factors in 
asylum applications. Id. This rule, by contrast, sets forth additional 
limitations on eligibility for asylum, which are separate from the 
discretionary determination. Additionally, Matter of Pula stated that 
whether a fraudulent document offense should preclude a favorable 
finding of discretion depends on ``the seriousness of the fraud.'' Id. 
at 474. The Departments in this rule are clarifying that the 
disqualifying offenses, which as provided by the rule must have 
resulted in a misdemeanor conviction, are serious enough to preclude 
eligibility for asylum, and have provided an exception for those 
situations that the Departments have determined should not preclude 
eligibility.
    The Departments further reject some comments as unjustified within 
the context of a law-abiding society. For example, criticizing the rule 
because it may discourage participation in criminal activity--e.g., 
driving without a license--or other activity in violation of the law--
e.g., working without employment authorization--is tantamount to saying 
the Departments should encourage and reward unlawful behavior. The 
Departments decline to adopt such suggestions. More specifically, the 
Departments reject commenters' suggestions that the additional 
limitation should not apply to document-fraud-related offenses that 
stem from fraudulent driver's licenses or employment authorization. The 
Departments' position on this matter is both reasonable and justified. 
As explained in the NPRM, such offenses are serious, ``pos[ing] * * * a 
significant affront to government integrity'' and are particularly 
pernicious in the context of immigration law, where the use of 
fraudulent documents, ``especially involving the appropriation of 
someone else's identity, * * * strongly undermines government 
integrity.'' 84 FR at 69653. Commenters' concerns about how the rule 
might affect working conditions of aliens are beyond the scope of this 
rulemaking.

[[Page 67234]]

    Congress has delegated its authority to the Departments to propose 
additional, i.e., broader, limitations on the existing bars to asylum 
eligibility, so long as the additional limitations are consistent with 
the Act. INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)). The Departments are 
acting pursuant to their authority to create additional limitations on 
asylum eligibility and are not designating additional offenses as 
particularly serious crimes pursuant to INA 208(b)(2)(B)(ii) (8 U.S.C. 
1158(b)(2)(B)(ii)), as discussed above. Accordingly, the Departments do 
not address commenters' concerns that the disqualifying offenses are 
not or should not be particularly serious crimes.
    The Departments disagree with commenters' assertions that the rule 
would unfairly affect trafficking victims because traffickers force 
them to use fraudulent documents when they are crossing the border. The 
Departments recognize the serious nature of such circumstances, but 
they believe that considerations regarding criminal culpability for 
document-fraud-related offenses would be best addressed during criminal 
proceedings.
    Finally, regarding commenters' points about the effect of document-
fraud-related convictions in the context of adjustment of status under 
INA 245(a) (8 U.S.C. 1255(a)), the Departments note that adjustment of 
status is separate from asylum, and the rule contemplates asylum only. 
See 84 FR at 69640 (stating that the Departments propose to amend their 
respective regulations governing the bars to ``asylum'' eligibility). 
The adjustment of status conditions and consequent benefits are 
different from asylum. See Mahmood v. Sessions, 849 F.3d 187, 195 (4th 
Cir. 2017) (observing that, although ``strong policies underlie'' both 
asylum and adjustment of status, ``[t]hese policies serve different 
purposes''). Compare INA 209(b) (8 U.S.C. 1159(b)) and 245(a) (8 U.S.C. 
1255(a)), with INA 208 (8 U.S.C. 1158)). The Departments do note, 
however, that, because adjustment of status is a discretionary form of 
relief, an alien's document-fraud-related conviction that would bar the 
alien from asylum eligibility under this rule could also separately be 
the basis for a denial of adjustment of status. See, e.g., Matter of 
Hashmi, 24 I&N Dec. 785, 790 (BIA 2009) (instructing immigration judges 
to consider ``whether the respondent's application for adjustment 
merits a favorable exercise of discretion'' when considering whether to 
continue proceedings).
h. Unlawful Public Benefits Misdemeanors
    Comment: Commenters opposed the NPRM's proposed limitation on 
asylum eligibility based on convictions for misdemeanor offenses 
involving the ``unlawful receipt of Federal public benefits, as defined 
in 8 U.S.C. 1611(c), from a Federal entity, or the receipt of similar 
public benefits from a State, tribal, or local entity, without lawful 
authority.'' See 8 CFR 208.13(c)(6)(vi)(B)(2), 1208.13(c)(6)(vi)(B)(2). 
Commenters stated that this proposed limitation would 
disproportionately impact low-income individuals and people of color. 
Commenters stated that complex evaluations involving assets, income, 
household composition, and changing circumstances, such as employment 
or housing, could easily result in overpayments and miscalculations of 
benefits by both case workers for recipients and recipients themselves. 
Commenters asserted that these calculations could be especially 
confusing and difficult for low-income persons who may have literacy 
challenges, low education levels, or limited English proficiency.
    One commenter stated that this proposed limitation was overbroad 
because there is no requirement that any convictions related to the 
unlawful receipt of public benefits be linked to fraud or require 
intentionality.
    Commenters asserted that unlawful receipt of public benefits is not 
a ``particularly serious crime.'' The commenters stated that the 
proposed limitation fails to differentiate between dangerous offenses 
and those committed out of desperation and observed that such offenses 
do not involve an element of intentional or threatened use of force. 
One commenter stated that the Departments' assertions that such 
offenses burden taxpayers and drain resources from lawful beneficiaries 
was not sufficient to render these offenses ``particularly serious 
crimes.'' Specifically, the commenter stated that this was inconsistent 
with the intent of the Act and the 1967 Protocol, as well as BIA 
precedent, citing the following: United Nations Protocol Relating to 
the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.1.A.S. 
No. 6577, 606 U.N.T.S. 268 (``The benefit of the present provision may 
not, however, be claimed by a refugee whom there are reasonable grounds 
for regarding as a danger to the security of the country in which he 
is, or who, having been convicted by a final judgment of a particularly 
serious crime, constitutes a danger to the community of that 
country.''); Delgado, 648 F.3d at 1110 (Reinhardt, J., concurring in 
part and concurring in the judgment) (``The agency's past precedential 
decisions also help to illuminate the definition of a `particularly 
serious crime.' Crimes that the Attorney General has determined to be 
`particularly serious' as a categorical matter, regardless of the 
circumstances of an individual conviction, include felony menacing (by 
threatening with a deadly weapon), armed robbery, and burglary of a 
dwelling (during which the offender is armed with a deadly weapon or 
causes injury to another). Common to these crimes is the intentional 
use or threatened use of force, the implication being that the 
perpetrator is a violent person.'' (footnotes omitted)).
    Commenters stated that the Departments greatly overstated the scope 
of this issue and failed to support their assertions that such crimes 
are of an ``inherently pernicious nature.'' See 84 FR at 69653. 
Commenters stated that, by contrast, ``data demonstrates that the 
incidents of these types of fraud crimes are minimal. For example, the 
incidence of fraud in the Supplemental Nutrition Assistance Program is 
estimated at 1.5% for all incidents of fraud, including individuals of 
all citizenship categories and including both fraud committed by 
agencies, retailers/shops and individuals.'' See Randy Alison 
Aussenberg, Cong. Research Serv., R45147, Errors and Fraud in the 
Supplemental Nutrition Assistance Program (SNAP) (2018), https://fas.org/sgp/crs/misc/R45147.pdf.
    Response: The Departments have considered all of the comments 
received, and have chosen not to make any changes to the NPRM's 
regulatory language establishing an additional limitation on asylum 
eligibility for individuals who have been convicted of an offense 
related to public benefits. See 8 CFR 208.13(c)(6)(vi)(B)(2), 
1208.13(c)(6)(vi)(B)(2).
    The Departments disagree with commenters who believe that the rule 
would unfairly impact low-income individuals. By contrast, the rule is 
designed to limit asylum eligibility for those who criminally take 
advantage of benefits designed to assist low-income individuals. The 
Departments recognize commenters' concerns that individuals might be 
unaware of the complex systems that might result in miscalculation and 
overpayment of benefits; however, the Departments believe that it would 
be more appropriate for criminal culpability for such offenses to be 
determined during criminal proceedings.

[[Page 67235]]

    In response to comments that such offenses are not particularly 
serious crimes, the Departments again note that the Departments' 
authority to set forth additional limitations and conditions on asylum 
eligibility requires only that such conditions and limitations be 
consistent with section 208 of the Act (8 U.S.C. 1158) and does not 
require that the offenses be particularly serious crimes or involve any 
calculation of dangerousness. Compare INA 208(b)(2)(C) (8 U.S.C. 
1158(b)(2)(C)) (``The Attorney General may by regulation establish 
additional limitations and conditions, consistent with this section, 
under which an alien shall be ineligible for asylum under paragraph 
(1).''), with INA 208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)), and 
INA 208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)) (providing that 
``[t]he Attorney General may designate by regulation offenses'' for 
which an alien would be considered ``a danger to the community of the 
United States'' by virtue of having been convicted of a ``particularly 
serious crime''). As discussed in the NPRM, limiting asylum eligibility 
for those who have been convicted of such offenses, which are of an 
``inherently pernicious nature,'' is consistent with previous 
Government actions to prioritize enforcement of the immigration laws 
against such offenders. 84 FR at 69653.
    Regardless of the relative frequency of public benefits fraud, the 
Departments have concluded that convictions for such crimes, however 
often they occur, should be disqualifying for eligibility for the 
discretionary benefit of asylum. For example, the Departments are 
encouraged by the data cited by commenters indicating that the rate of 
fraud in certain programs may be low, but low rates of fraud do not 
support countenancing the abuse of public benefits by the remainder of 
the programs' participants.
i. Controlled Substance Possession or Trafficking Misdemeanors \30\
---------------------------------------------------------------------------

    \30\ In addition to the comments regarding the bar to asylum 
discussed in this section, multiple commenters shared their opinion 
that marijuana should be legalized, without reference to a 
particular provision of the proposed rule. The Departments note that 
broad questions of national drug policy, including the legalization 
of marijuana at the national or State level, are outside the scope 
of this rulemaking. Marijuana remains a controlled substance, with 
the resulting penalties that may flow from its possession, 
trafficking, or other activities involving it. See 21 CFR 1308.11 
(Schedule I controlled substances).
---------------------------------------------------------------------------

    Comment: Commenters also opposed the designation of misdemeanor 
possession or trafficking of a controlled substance or controlled-
substance paraphernalia as categorical bars to asylum eligibility. See 
8 CFR 208.13(c)(6)(vi)(B)(3), 1208.13(c)(6)(vi)(B)(3) (proposed). 
Commenters asserted that the proposed limitation would be unnecessary, 
overbroad, and racially discriminatory.
    Commenters remarked that the proposed limitation was overbroad with 
respect to the convictions and conduct covered and was not tailored to 
bar only those who have engaged in ``serious'' conduct or otherwise 
posed a danger to the community. Commenters also stated that the 
proposed limitation was overbroad because it did not account for 
jurisdictions that had decriminalized certain drugs, like cannabis.
    Commenters said that, given the stakes at issue in asylum claims, 
protection should not be predicated on an applicant's abstinence from 
drugs. Commenters also stated that this proposed limitation was 
particularly inappropriate ``at a time of such inconsistency in federal 
laws surrounding drug legalization.'' Commenters generally expressed 
concern about the Federal government's perpetuation of the ``war on 
drugs.''
    Commenters stated that the proposed limitation would not make 
anybody safer but rather result in the denial of bona fide asylum 
claims. Commenters stated that the proposed limitation would ``go 
beyond any common sense meaning'' of the term ``particularly serious 
crime.'' Commenters were particularly concerned with the implications 
of this proposed limitation because it would eliminate the opportunity 
for applicants to present mitigating circumstances that, commenters 
stated, are commonly associated with such convictions, such as 
addiction, self-medication, and any subsequent treatment or 
rehabilitation. Commenters asserted that the proposed limitation would 
improperly expand bars to asylum eligibility based on laws where 
enforcement decisions are ``heavily tainted'' by racial profiling.
    Commenters also expressed concern that the proposed limitation 
would unfairly punish asylum seekers who might be vulnerable to 
struggles with addiction as a coping mechanism after facing significant 
trauma, particularly in light of obstacles to accessing medical or 
psychological treatment. Commenters stated that the proposed limitation 
eliminated any possibility of a treatment- and compassion-based 
approach to addiction. Commenters stated that the Departments' position 
on this matter was at odds with national trends to ``move toward a harm 
reduction approach to combating drug and alcohol addiction.'' Some 
commenters noted that treatment of misdemeanor offenses relating to 
controlled substances, particularly with respect to offenses involving 
possession of marijuana or prescription drugs, was ``wildly 
disproportionate to the severity of these offenses.'' One commenter 
asserted that these offenses do not have an element of violence or 
dangerousness and stated that the ``only victims are the offenders 
themselves.''
    One commenter remarked that the Departments relied on ``misleading 
evidence that does not create a link between dangerousness'' and the 
disqualifying offense. The commenter stated that widespread opioid 
abuse is ``rooted in over-prescription by healthcare providers based on 
the assurances of pharmaceutical companies'' and does not serve as a 
relevant justification for the additional limitation.
    One commenter stated that courts and statutes, including the 
Supreme Court, have treated varying simple possession drug offenses 
differently. For example, the commenter read the Supreme Court's 
decision in Lopez v. Gonzales, 549 U.S. 47 (2006), to mean that simple 
possession of a controlled substance is not a ``drug trafficking crime 
unless it would be treated as a felony if prosecuted under federal 
law.'' The commenter also remarked that a single incident of simple 
possession of any controlled substance except for Flunitrazepam is not 
treated as a felony and is thus not considered an aggravated felony, 
see 21 U.S.C. 844; and that some second convictions for possession have 
been recognized as drug trafficking aggravated felonies, but not all, 
see Carachuri-Rosendo v. Holder, 560 U.S. 563, 566 (2010); Berhe v. 
Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006). The commenter asserted 
that the nuanced and varying assessments related to such offenses 
suggest ``they do not merit blanket treatment of the same severity.''
    Some commenters objected to existing aggravated felony bars with 
respect to drug-related offenses in addition to the proposed 
limitation. Commenters stated that immigration judges should continue 
to be able to exercise discretion over those controlled-substance-
related offenses that are not already subject to an existing bar to 
asylum. Commenters also generally objected to criminalizing possession 
of drugs for personal use, given the medical value and current 
inconsistent treatment among states, but no analysis was provided 
connecting these comments to the NPRM, specifically.

[[Page 67236]]

    Response: The Departments have considered all comments and 
recommendations submitted regarding the NPRM. The final rule does not 
alter the regulatory language set forth in the NPRM with respect to the 
limitation on misdemeanor offenses involving possession or trafficking 
of a controlled substance or controlled-substance paraphernalia. See 8 
CFR 208.13(c)(6)(vi)(B)(3), 1208.13(c)(6)(vi)(B)(3).
    Consistent with the INA's approach toward controlled substance 
offenses, for example in the removability context under INA 
237(a)(2)(B)(i) (8 U.S.C. 1227(a)(2)(B)(i)), this rule does not 
penalize a single offense of marijuana possession for personal use of 
30 grams or less. See 84 FR at 69654. However, as discussed in the 
NPRM, the Departments have determined that possessors and traffickers 
of controlled substances ``pose a direct threat to the public health 
and safety interests of the United States.'' Id. Accordingly, the 
Departments made a policy decision to protect against such threats by 
barring asylum to such possessors and traffickers, and Federal courts 
have agreed with such treatment in the past. See Ayala-Chavez v. U.S. 
INS, 944 F.2d 638, 641 (9th Cir. 1991) (``[T]he immigration laws 
clearly reflect strong Congressional policy against lenient treatment 
of drug offenders.'' (quoting Blackwood v. INS, 803 F.2d 1165, 1167 
(11th Cir. 1988))).
    The Departments note that aliens barred from asylum eligibility as 
a result of this provision may still be eligible for withholding of 
removal under the Act or CAT protection, provisions that would preclude 
return to a country where they experienced or fear torture or 
persecution. See 84 FR at 69642.
    The Departments disagree with comments suggesting that the bar is 
overbroad and not appropriately tailored only to aliens who have 
engaged in serious conduct or pose a danger to the community. 
Similarly, the Departments strongly disagree with commenters who 
asserted that this additional limitation will not make communities 
safer. Despite commenters' arguments, the Departments reiterate that 
controlled substance offenses represent significant and dangerous 
offenses that are damaging to society as a whole. See Matter of Y-L-, 
23 I&N Dec. 270, 275 (A.G. 2002) (noting that ``[t]he harmful effect to 
society from drug offenses has consistently been recognized by Congress 
in the clear distinctions and disparate statutory treatment it has 
drawn between drug offenses and other crimes''). The illicit use of 
controlled substances imposes substantial costs on society from loss of 
life, familial disruption, the costs of treatment or incarceration, 
lost economic productivity, and more. Id. at 275-76 (citing Matter of 
U-M-, 20 I&N Dec. 327, 330-31 (BIA 1991) (``This unfortunate situation 
has reached epidemic proportions and it tears the very fabric of 
American society.'')); 84 FR at 69654; see also Office of Nat'l Drug 
Control Policy, National Drug Control Strategy 11 (Feb. 2020), https://www.whitehouse.gov/wp-content/uploads/2020/02/2020-NDCS.pdf 
(explaining, in support of the national drug control strategy, the 
devastating effects of drug use and the necessity for treatment that 
includes ``continuing services and support structures over an extended 
period of time''). Increased controlled substance prevalence is often 
correlated with increased rates of violent crime and other criminal 
activities. See 84 FR at 69650 (explaining that perpetrators of crimes 
such as drug trafficking are ``displaying a disregard for basic 
societal structures in preference of criminal activities that place 
other members of the community * * * in danger'').
    Even assuming, arguendo, the commenters are correct that such 
offenses do not reflect an alien's dangerousness to the same extent as 
those offenses that are formally designated ``particularly serious 
crimes,'' the Departments' authority to set forth additional 
limitations and conditions on asylum eligibility under section 
208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C)) requires only that 
such conditions and limitations be consistent with section 208 of the 
Act (8 U.S.C. 1158). See INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)) 
(``The Attorney General may by regulation establish additional 
limitations and conditions, consistent with this section, under which 
an alien shall be ineligible for asylum under paragraph (1).''). Unlike 
the designation of particularly serious crimes, there is no requirement 
that the aliens subject to these additional conditions or limitations 
first meet a particular level of dangerousness. Compare id., with INA 
208(b)(2)(B)(ii) (8 U.S.C. 1158(b)(2)(B)(ii)), and INA 208(b)(2)(A)(ii) 
(8 U.S.C. 1158(b)(2)(A)(ii)) (providing that ``[t]he Attorney General 
may designate by regulation offenses'' for which an alien would be 
considered ``a danger to the community of the United States'' by virtue 
of having been convicted of a ``particularly serious crime''). Instead, 
section 208(b)(2)(C) of the Act (8 U.S.C. 1158(b)(2)(C) confers broad 
discretion on the Attorney General and the Secretary to establish a 
wide range of conditions on asylum eligibility, and the designation of 
certain drug-related offenses as defined in the rule as an additional 
limitation on asylum eligibility is consistent with the rest of the 
statutory scheme. For example, Congress's inclusion of other crime-
based bars to asylum eligibility demonstrates the intent to allow the 
Attorney General and Secretary to exercise the congressionally provided 
authority to designate additional types of criminal offenses or related 
behavior as bars to asylum eligibility. See INA 208(b)(2)(A)(ii), (iii) 
(particularly serious crime and serious nonpolitical crime) (8 U.S.C. 
1158(b)(2)(A)(ii), (iii)). Further, as discussed at length in the NPRM, 
this additional limitation on asylum eligibility is consistent with the 
Act's treatment of controlled-substance offenses as offenses that may 
render aliens removable from or inadmissible to the United States. 84 
FR at 69654.
4. Due Process and Fairness Considerations
    Comment: The Departments received numerous comments asserting that 
the rule violates basic notions of fairness and due process. One 
commenter asserted that anything that makes the asylum process harder, 
which the NPRM does according to the commenter, is a denial of due 
process. Commenters claimed that the Departments' true goal in 
promulgating these rules is to reduce the protections offered by 
existing asylum laws and to erode ``any semblance of due process and 
justice for those seeking safety and refuge in this country.''
    In addition to general objections regarding due process, commenters 
asserted various constitutional problems with the proposed rule. Citing 
United States v. Davis, 139 S. Ct. 2319, 2323 (2019), commenters 
specified that due process requires laws and regulations to ``give 
ordinary people fair warning about what the law demands of them.'' 
These commenters argued that the proposed rule fails to give affected 
individuals fair notice of which offenses will bar asylum. Commenters 
also noted that equal protection principles require the government to 
treat similarly situated people in the same manner but averred that the 
proposed rule, as applied, would result in similarly situated 
applicants being treated differently.
    Commenters stated that requiring immigration adjudicators to deny a 
legal benefit, even a discretionary one, based on alleged and uncharged 
conduct is a clear violation of the presumption of innocence, which the 
commenters

[[Page 67237]]

argued is a fundamental tenet of our democracy.
    Commenters alleged that immigration proceedings are not the proper 
venue for the sort of evidentiary considerations required by the rule. 
Commenters argued that asylum applicants will not have the opportunity 
to be confronted by evidence or to contest such evidence in a criminal 
court. These commenters noted that criminal courts afford defendants 
additional due process protections not found in immigration court, such 
as the right to counsel, the right to discovery of the evidence that 
will be presented, and robust evidentiary rules protecting against the 
use of unreliable evidence.
    Similarly, commenters alleged that, due to the ``lack of robust 
evidentiary rules in immigration proceedings,'' many applicants would 
be unable to rebut negative evidence submitted against them, even if 
the evidence submitted is false. One commenter claimed, without more, 
that there is a high likelihood that such evidence is false. Commenters 
were concerned that unreliable evidence would be submitted in support 
of the application of the additional bars. Alternatively, commenters 
stated that immigration adjudicators might rely on evidence where a 
judicial court had already evaluated reliability and not credited the 
evidence based on a lack of reliability. In addition, commenters were 
concerned that the rule authorizes adjudicators to seek out unreliable 
evidence obtained in violation of due process to determine whether an 
applicant's conduct triggers the particularly serious crime bar.
    Commenters were concerned that requiring applicants to disprove 
allegations of gang-related activity or domestic violence would result 
in re-litigation of convictions or litigation of conduct that fell 
outside the scope of prior convictions. Similarly, commenters were 
concerned that the rule violates due process because it requires 
adjudicators to consider an applicant's conduct, separate and apart 
from any criminal court decision, that may trigger a categorical bar to 
asylum. One commenter asserted that ``people seeking asylum should have 
the right to be considered innocent until proven guilty, and should not 
be denied asylum based on an accusation.'' Moreover, commenters alleged 
that this consideration extends to whether a vacated or modified 
conviction or sentence still constitutes a conviction or sentence 
triggering the bar to asylum.
    Commenters alleged that adjudicators might improperly rely on 
uncorroborated allegations in arrest reports and shield the ensuing 
decision from judicial review by claiming discretion. Commenters stated 
that the rule lacks safeguards to prevent such erroneous decisions.
    Commenters expressed concern that asylum applicants, especially 
detained applicants, would struggle to find evidence related to events 
that may have occurred years prior to the asylum application. One 
organization noted that the rule would be particularly challenging for 
detained respondents because they often lack representation and would 
be required to rebut circumstantial allegations with limited access to 
witnesses and evidence.
    The Departments also received numerous comments stating that asylum 
hearings, which typically last three or fewer hours, provide 
insufficient time to permit both parties to present full arguments on 
these complex issues, as effectively required by the rule, thereby 
resulting in due process violations.
    One commenter raised due process and constitutional concerns if the 
rule fails to provide proper notice to the alien. In that case, 
commenters alleged that the Sixth Amendment right to ``be accurately 
apprised by defense counsel of the immigration consequences of his 
guilty plea to criminal charges'' applies but that the rule fails to 
account for those consequences.
    Response: The rule does not violate notions of fairness or due 
process. As an initial matter, asylum is a discretionary benefit, as 
demonstrated by the text of the statute, which states the Departments 
``may'' grant asylum, INA 208(b)(1)(A) (8 U.S.C. 1158(b)(1)(A)), and 
which provides authority to the Attorney General and the Secretary to 
limit and condition, by regulation, asylum eligibility under INA 
208(b)(2)(C), (d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)). Courts 
have found that aliens have no cognizable due process interest in the 
discretionary benefit of asylum. See Yuen Jin, 538 F.3d at 156-57; 
Ticoalu, 472 F.3d at 11 (citing DaCosta, 449 F.3d at 49-50). In other 
words, ``[t]here is no constitutional right to asylum per se.'' Mudric, 
469 F.3d at 98. Thus, how the Departments choose to exercise their 
authority to limit or condition asylum eligibility and an adjudicator's 
consideration of an applicant's conduct in relation to asylum 
eligibility do not implicate due process claims.
    The rule does not ``reduce the protections offered by the asylum 
laws.'' In fact, the rule makes no changes to asylum benefits at all; 
rather, it changes who is eligible for such benefits. See 84 FR at 
69640. Further, the rule is not intended to ``erode'' due process and 
justice for aliens seeking protection; instead, the rule revises asylum 
eligibility by adding categorical bars to asylum eligibility, 
clarifying the effect of certain criminal convictions and conduct on 
asylum eligibility, and removing automatic reconsideration of 
discretionary denials of asylum. See 84 FR at 69640. Although some of 
these changes may affect aliens seeking protection in the United 
States, these effects do not constitute a deprivation of due process or 
justice, and alternative forms of protection--withholding of removal 
under the Act along with withholding of removal or deferral of removal 
under the CAT regulations--remain available for qualifying aliens. See 
84 FR at 69642.
    Regarding commenters' concerns that the rule does not sufficiently 
provide notice to aliens regarding which offenses would bar asylum 
eligibility, the Departments first note that the publication of the 
NPRM and this final rule serves, in part, as notice to the public 
regarding which offenses bar asylum eligibility. See 5 U.S.C. 552. 
Courts have held that an agency's informal rulemaking pursuant to 5 
U.S.C. 553 constitutes sufficient notice to the public if it ``fairly 
apprise[s] interested persons of the `subjects and issues' involved in 
the rulemaking[.]'' Air Transport Ass'n of America v. FAA, 169 F.3d 1, 
6 (D.C. Cir. 1999) (quoting Small Refiner Lead Phase-Down Task Force v. 
EPA, 705 F.2d 506, 547 (D.C. Cir. 1983)).
    To the extent that commenters argued that the rule is 
insufficiently clear with regards to the substance of what offenses are 
disqualifying,\31\ the Departments disagree. This rule clearly 
establishes which offenses bar asylum by listing such offenses in 
detail in the regulatory text at 8 CFR 208.13(c)(6)-(9) and 
1208.13(c)(6)-(9). Unlike other statutory provisions that have been 
found unconstitutionally vague,\32\ this rule clearly establishes 
grounds for mandatory denial of request for asylum. 8 CFR 208.13(c)(6)-
(9), 1208.13(c)(6)-(9). The regulatory text adds paragraph (c)(7) to 
specifically define terms used

[[Page 67238]]

in 8 CFR 208.13 and 1208.13, and the regulatory text otherwise 
references applicable definitions for terms not found in paragraph 
(c)(7). See, e.g., 8 CFR 1208.13(c)(6)(iv)(A) (defining driving while 
intoxicated or impaired ``as those terms are defined under the 
jurisdiction where the conviction occurred''). Further, just as the INA 
contains various criminal grounds for ineligibility without specified 
elements, see generally INA 101(a)(43) (8 U.S.C. 1101(a)(43)), here, 
the Departments have provided a detailed list of particular criminal 
offenses or related activities that would render an alien ineligible 
for asylum. Accordingly, despite the commenter's argument that the 
regulatory text fails to give ``fair warning'' of which offenses would 
bar asylum eligibility, the regulatory text is sufficiently clear to 
provide the public with the requisite notice. See Davis, 139 S. Ct. at 
2323.
---------------------------------------------------------------------------

    \31\ Cf. Dimaya, 138 S. Ct. at 1225 (``Perhaps the most basic of 
due process's customary protections is the demand of fair 
notice.'').
    \32\ For example, the Court in Dimaya, 138 S. Ct. at 1222-23, 
held that the Federal criminal code provision at issue was 
unconstitutionally vague in part because it failed to provide 
definitions for or explain such terms as ``ordinary case'' and 
``violent.'' On the other hand, the term ``crime involving moral 
turpitude'' has continuously been upheld as not unconstitutionally 
vague, despite repeated judicial criticism. See, e.g., Islas-Veloz 
v. Whitaker, 914 F.3d 1249, 1250 (9th Cir. 2019) (``the phrase 
`crime involving moral turpitude' [is] not unconstitutionally 
vague'').
---------------------------------------------------------------------------

    The Departments acknowledge the commenters' general equal 
protection concerns; however, without more detailed comments providing 
for the specific concerns of commenters, the Departments are unable to 
provide a complete response to these comments. The Departments note, 
however, that categorical bars to asylum apply equally to all asylum 
applicants and do not classify applicants on the basis of any protected 
characteristic, such as race or religion.
    Immigration proceedings are civil in nature; thus constitutional 
protections for criminal defendants, including evidentiary rules, do 
not apply. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); Dallo 
v. INS, 765 F.2d 581, 586 (6th Cir. 1985); Baliza v. INS, 709 F.2d 
1231, 1233 (9th Cir. 1983); Longoria-Castaneda v. INS, 548 F.2d 233 
(8th Cir. 1977). In addition, any determinations regarding evidence or 
other related procedural issues by a criminal court do not 
automatically apply in a subsequent immigration proceeding or asylum 
interview. The Departments emphasize that the NRPM did not propose and 
the final rule does not enact any changes to the immigration court or 
asylum interview rules of procedure or evidentiary consideration 
processes. Accordingly, adjudicators will continue to receive and 
consider ``material and relevant evidence,'' and it is the adjudicator 
who determines what evidence so qualifies. 8 CFR 1240.1(c). Immigration 
adjudicators regularly consider and receive evidence regarding criminal 
offenses or conduct in the context of immigration adjudications, 
including asylum applications, where such evidence has been frequently 
considered as part of the ``particularly serious crime'' determination 
or as part of the ultimate discretionary decision. Cf. Matter of Jean, 
23 I&N Dec. 373, 385 (A.G. 2002) (holding that aliens convicted of 
violent or dangerous offenses generally do not merit asylum as a matter 
of discretion).
    Many of the commenters' concerns rely on circumstances that are 
purely speculative or that are only indirectly implicated by the rule. 
For example, commenters' concerns regarding an alien's hypothetical 
inability to confront evidence require first that concerning evidence 
is at issue, that such evidence is false, and finally that the alien is 
unable (for reasons unspecified by commenters) to rebut such evidence. 
Likewise, commenters' concerns regarding evidence supporting the bars 
rest on the premise that such specific evidence is submitted in the 
future, that such evidence has not been tested, and that such evidence 
is thus unreliable. Regarding these concerns, the Departments are 
unable to comment on speculative examples.
    In regard to commenters' concerns about the reliability 
determinations of evidence already made by judicial courts, the 
regulations require that immigration judges consider material and 
relevant evidence. See 8 CFR 1240.1(c). Immigration judges consider 
whether evidence is ``probative and whether its use is fundamentally 
fair so as not to deprive the alien of due process of law.'' Ezeagwuna, 
325 F.3d at 405 (quoting Bustos-Torres, 898 F.2d at 1055). The rule 
does not undermine or revise that standard; thus, commenters' concerns 
are unwarranted.
    In general, commenters' concerns are no different than existing 
concerns regarding the reliability of evidence submitted by aliens in 
asylum cases, which is generally rooted in hearsay, frequently cannot 
be confronted or rebutted, and is typically uncorroborated except by 
other hearsay evidence. See, e.g., Angov v. Lynch, 788 F.3d 893, 901 
(9th Cir. 2015) (``The specific facts supporting a petitioner's asylum 
claim--when, where, why and by whom he was allegedly persecuted--are 
peculiarly within the petitioner's grasp. By definition, they will have 
happened at some time in the past--often many years ago--in a foreign 
country. In order for [DHS] to present evidence `refuting or in any way 
contradicting' petitioner's testimony, it would have to conduct a 
costly and often fruitless investigation abroad, trying to prove a 
negative--that the incidents petitioner alleges did not happen.'' 
(quoting Abovian v. INS, 257 F.3d 971, 976 (9th Cir. 2001) (Kozinski, 
J., dissenting from denial of petition for rehearing en banc))); 
Mitondo v. Mukasey, 523 F.3d 784, 788 (7th Cir. 2008) (``Most claims of 
persecution can be neither confirmed nor refuted by documentary 
evidence. Even when it is certain that a particular incident occurred, 
there may be doubt about whether a given alien was among the victims. 
Then the alien's oral narration must stand or fall on its own terms. 
Yet many aliens, who want to remain in the United States for economic 
or social reasons unrelated to persecution, try to deceive immigration 
officials.''). Asylum adjudicators are well experienced at separating 
reliable from unreliable evidence, regardless of its provenance, and 
this rule neither inhibits their ability to do so nor changes the 
process for assessing evidence.
    Further, as discussed in the preamble to the proposed rule, the 
rule contemplates the consideration of all ``reliable'' evidence and 
authorizes adjudicators to assess all ``reliable'' evidence. 84 FR at 
69649 and 69652. The rule does not encourage adjudicators to ``seek out 
unreliable evidence,'' as commenters alleged. Accordingly, the 
Departments disagree with commenters that adjudicators will improperly 
rely on information in arrest reports that the adjudicators have 
determined is unreliable, and the Departments further disagree that 
adjudicators would seek to protect such decisions by claiming 
discretion.
    As explained in section II.C.2.a.i, the rule establishes limits and 
conditions on asylum eligibility; it does not add offenses to the 
``particularly serious crime'' bar. See 8 CFR 208.13(c)(6), 
1208.13(c)(6) (both using prefatory language that reads ``[a]dditional 
limitations on eligibility for asylum''). To the extent that 
commenters' concerns relate specifically to the ``particularly serious 
crime'' bar, the Departments decline to respond because those concerns 
are outside the scope of this rulemaking.
    Regarding commenters' concerns that the domestic violence and gang-
related bars to asylum eligibility would violate due process due to the 
requirement that the adjudication re-litigate the offense or consider 
conduct separate and apart from a criminal conviction, the Departments 
first note that there has never been a prohibition on the consideration 
of conduct when determining the immigration consequences of an offense 
or action.\33\

[[Page 67239]]

Further, the consideration of conduct in this manner matches certain 
bars to admissibility or bases of deportability under the INA. See, 
e.g., INA 212(a)(2)(C)(i) (8 U.S.C. 1182(a)(2)(C)(i)) (instructing that 
an alien who the relevant official ``knows or has reason to believe * * 
* is or has been an illicit trafficker in any controlled substance'' is 
inadmissible); INA 212(a)(2)(H) (8 U.S.C. 1182(a)(2)(H)) (instructing 
that an alien who the relevant official ``knows or has reason to 
believe is or has been * * * a trafficker in severe forms of 
trafficking in persons'' is inadmissible); INA 237(a)(2)(F) (8 U.S.C. 
1227(a)(2)(F)) (instructing that an alien described in section 
212(a)(2)(H) of the Act (8 U.S.C. 1182(a)(2)(H)) is deportable); see 
also, e.g., Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1207-08 & n.1 (9th 
Cir. 2004) (explaining that the immigration judge found the respondent 
removable due to a reason to believe he was a controlled substance 
trafficker on account of a prior arrest report and information 
surrounding his conviction for misprision of a felony). In addition, 
the consideration of the alien's conduct in these circumstances is 
consistent with the consideration of conduct when reviewing a 
circumstance-specific ground of removability or deportability. See 
Nijhawan, 55 U.S. at 38.
---------------------------------------------------------------------------

    \33\ To the extent the issues raised by commenters relate to the 
domestic violence provision of the rule that is not based on a 
criminal conviction, the Departments note that regulations have 
considered similar conduct in the context of immigration law for 
nearly 25 years with no recorded challenges to the provisions of 8 
CFR 204.2(c)(1)(i)(E) as a violation of due process.
---------------------------------------------------------------------------

    Further, as discussed above, the rule does not violate due process 
because asylum is a discretionary benefit that does not implicate a 
liberty interest. See Yuen Jin, 538 F.3d at 156-57 (collecting cases); 
Ticoalu, 472 F.3d at 11 (citing DaCosta, 449 F.3d at 49-50); cf. 
Hernandez, 884 F.3d at 112 (stating, in the context of duress waivers 
to the material support bar, that ``aliens have no constitutionally-
protected `liberty or property interest' in such a discretionary grant 
of relief for which they are otherwise statutorily ineligible''); 
Obleshchenko, 392 F.3d at 971 (finding that an alien has no right to 
effective assistance of counsel with regard to an asylum claim because 
there is no liberty interest in a statutorily created, discretionary 
form of relief, but distinguishing withholding of removal). In 
addition, aliens may provide argument and evidence that they are not 
subject to an asylum bar. See 8 CFR 1240.8(d) (providing that the alien 
bears the burden of proof to show that a basis for mandatory denial 
does not apply); see also 84 FR at 69642.
    Finally, commenters' Sixth Amendment concerns, including the 
presumption that a person is ``innocent until proven guilty'' are 
inapposite. The protections afforded by that amendment apply to 
criminal defendants, and asylum applicants in immigration proceedings 
are not criminal defendants. See, e.g., Ambati v. Reno, 233 F.3d 1054, 
1061 (7th Cir. 2000) (``Deportation hearings are civil proceedings, and 
asylum-seekers, therefore, have no Sixth Amendment right to 
counsel.''); Lavoie v. Immigration and Naturalization Service, 418 F.2d 
732, 734 (9th Cir. 1969) (``[D]eportation proceedings are civil and not 
criminal, in nature, and [] the rules * * * requiring the presence of 
counsel during interrogation, and other Sixth Amendment safeguards, are 
not applicable to such proceedings.''); Lyon v. U.S. Immigr. and 
Customs Enf't, 171 F. Supp. 3d 961, 975 (N.D. Cal 2016) (``[T]he Ninth 
Circuit has never so held, and the Court is reluctant to so interpret 
the INA absent any indication that Congress intended to import full 
Sixth Amendment standards into the INA.'').
    The Departments maintain that they have correctly concluded that 
convictions pursuant to expunged or vacated orders or modified 
sentences remain effective for immigration purposes if the underlying 
reason for expungement, vacatur, or modification was for 
``rehabilitation or immigration hardship.'' Matter of Thomas and 
Thompson, 27 I&N Dec. at 680; see also 84 FR at 69655. Courts also 
support this principle, stating that it is ``entirely consistent with 
Congress's intent * * * [to] focus[ ] on the original attachment of 
guilt (which only a vacatur based on some procedural or substantive 
defect would call into question)'' and to ``impose[ ] uniformity on the 
enforcement of immigration laws.'' Saleh, 495 F.3d at 24.
    Next, contrary to commenters' concerns, this rule does not violate 
principles such as being ``innocent until proven guilty.'' Convictions 
and sentences are not re-litigated during immigration proceedings. 
Rather, convictions and sentences at issue in immigration proceedings 
have already been determined in a separate hearing, consistent with due 
process, and ``[l]ater alterations to that sentence that do not correct 
legal defects[ ] do not change the underlying gravity of the alien's 
action.'' Matter of Thomas and Thompson, 27 I&N Dec. at 683. Congress 
determined that immigration consequences should attach to an alien's 
original conviction and sentencing, pursuant to section 101(a)(48) of 
the Act (8 U.S.C. 1101(a)(48)). See id. Thus, the Departments do not 
deprive an alien of due process or presume guilt when an alien's 
conviction or sentence, if expunged, vacated or modified for 
rehabilitation or immigration purposes, remains effective for 
immigration proceedings, including asylum adjudications, because such 
an expungement, vacatur, or modification does not call into question 
whether the underlying criminal proceedings themselves complied with 
due process.
    The Departments once again reiterate their statutory authority to 
limit and condition asylum eligibility consistent with the statute. See 
INA 208(b)(2)(C), (d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)). In 
accordance with that authority, the Departments promulgated the NPRM 
and believe that the provisions of this final rule are sufficient 
without commenters' recommended safeguards.
    Finally, issues involving evidence gathering are beyond the scope 
of this rulemaking. For issues regarding representation, see section 
II.C.6.h. The Departments disagree that hearings lack sufficient time 
for both parties to present arguments. See Office of the Chief 
Immigration Judge, Immigration Court Practice Manual, 68-69 (Mar. 17, 
2020), https://www.justice.gov/eoir/page/file/1258536/download (noting 
that, at a master calendar hearing, a respondent should be prepared 
``to estimate (in hours) the amount of time needed to present the case 
at the individual calendar hearing''). Moreover, if parties believe 
additional time is needed, the regulations provide a mechanism for them 
to seek additional time through a motion for continuance. See 8 CFR 
1003.29.
5. Insufficient Alternative Protection From Removal
    Comment: The Departments received numerous comments alleging that 
withholding of removal under the Act and protection under the CAT 
regulations are insufficient alternative forms of protection for 
individuals barred from asylum pursuant to the proposed rule. Overall, 
commenters believed that refugees ``should not be required to settle 
for these lesser forms of relief.'' Commenters averred that the 
availability of these forms of protection does not justify the serious 
harm caused by the proposed rule's ``overly harsh and broad limits on 
asylum.'' Specifically, statutory withholding of removal and protection 
under the CAT regulations are much narrower in scope and duration than 
asylum and require applicants to establish a higher burden of proof. 
One commenter noted that, even if an applicant was able to meet the 
higher burden of proof for statutory withholding of removal or 
protection

[[Page 67240]]

under the CAT regulations, the individual would not then be accorded 
the benefits required by the Refugee Convention.
    Commenters cited a number of limitations imposed on recipients of 
these forms of protection to demonstrate why they are insufficient 
alternatives to asylum. For example, commenters expressed concern 
regarding the prohibition on international travel for recipients of 
statutory withholding of removal and CAT protection. Commenters noted 
that, unlike recipients of asylum, these individuals are not provided 
travel documents. At the same time, because these individuals have been 
ordered removed but that removal has been withheld or deferred, any 
international travel would be considered a ``self-deportation,'' 
foreclosing any future return to the United States. Commenters stated 
that this conflicts with the Refugee Convention, which requires that 
contracting states issue travel documents for international travel to 
refugees lawfully staying in their territory.
    Commenters also claimed the proposed rule contravenes the Refugee 
Convention by failing to ensure ``that the unity of the refugee's 
family is maintained particularly in cases where the head of the family 
has fulfilled the necessary conditions for admission to a particular 
country.'' Commenters alleged that individuals who are granted 
statutory withholding of removal or protection under the CAT 
regulations would be unable to reunite with family in the United States 
because these forms of relief do not allow the recipient to petition 
for derivative beneficiaries. Due to this, commenters stated that the 
proposed rule instituted another formal policy of family separation 
that permanently separate spouses and children from their family 
members.
    Commenters also stated that the proposed rule would lead to 
additional forms of family separation because spouses and minor 
children who traveled with the primary asylum seeker would still need 
to establish individual eligibility for statutory withholding of 
removal or protection under the CAT regulations because there is no 
derivative application available in such circumstances. Also, 
commenters expressed concern that, without the ability to petition for 
additional family members, the proposed rule would force family members 
who remain in danger abroad to make the journey to the United States 
alone, likely endangering children who might be forced to make the 
journey as unaccompanied minors.
    As another example of the lesser benefits of statutory withholding 
of removal and protection under the CAT regulations, commenters noted 
that recipients of withholding of removal must apply annually for work 
authorization. Commenters explained that individuals not only have to 
pay for these work authorization applications, but also face delays in 
adjudication of work authorization applications, which often results in 
the loss of legal authorization to work.
    Similarly, commenters noted that recipients of statutory 
withholding of removal or protection under the CAT regulations may lose 
access to Federal public benefits, including ``supplemental security 
income, food stamps, Medicaid, and cash assistance.'' Commenters 
expressed concern that, although recipients of withholding of removal 
may be eligible for a period of seven years to receive Federal means-
tested public benefits, after seven years, the presumption is that the 
alien would have adjusted status. However, because recipients of 
withholding of removal are not provided a pathway to lawful permanent 
residency, commenters expressed concern that vulnerable individuals 
such as those who are disabled or elderly would be at risk of losing 
those public benefits.
    Commenters also noted that recipients of statutory withholding of 
removal and protection under the CAT regulations remain in a tenuous 
position because they are not granted lawful status to remain in the 
United States indefinitely. Commenters averred that this contravenes 
the Refugee Convention by failing to ``as far as possible facilitate 
the assimilation and naturalization of refugees.'' Recipients of 
statutory withholding of removal or protection under the CAT 
regulations may have their status terminated at any time based on a 
change in the conditions of their home country. Commenters explained 
that, because these individuals have no access to permanent residence 
or citizenship, they may be required to check in with immigration 
officials periodically. Commenters claimed that, at these check-ins, 
individuals may be required to undergo removal to a third country to 
which the individual has no connection.
    Because of the constant prospect of deportation or removal, 
commenters stated that recipients of withholding or CAT protection are 
in a constant state of uncertainty. This uncertainty, commenters 
alleged, is particularly harmful to asylum seekers who have experienced 
severe human rights abuses. Commenters argued that certainty of a safe 
place to live forever is one of the most important aspects of the 
treaties establishing the refugee system. Commenters claimed that 
uncertainty and limbo discourage recipients from establishing 
connections to the United States, which in turn generates community 
instability. Commenters alleged that a lack of community stability will 
result in increased criminal activity as individuals are less 
incentivized to invest in the community or keep the community safe. 
Additionally, this uncertainty may reduce the incentive for individuals 
to invest in their community by, for example, opening businesses, 
hiring others, or paying taxes.
    Commenters were concerned that increasing the population of people 
who are ineligible to receive asylum may create a cohort of individuals 
who will later need a ``legislative fix'' to adjust their status and 
grant them full rights as citizens.
    Finally, commenters noted that both statutory withholding of 
removal and protection under the CAT regulations require a higher 
burden of proof than asylum. Commenters explained that asylum requires 
only that the applicant demonstrate at least a 10 percent chance of 
being persecuted if removed. Withholding of removal, either under the 
Act or under the CAT regulations, however, requires the applicant to 
demonstrate that it is more likely than not that he or she would be 
persecuted or tortured if returned--i.e., he or she must show a more 
than fifty percent chance of being persecuted or tortured if removed. 
Commenters noted that, because of this higher burden of proof, an 
applicant may have a valid and strong asylum claim but be unable to 
meet the burden for statutory withholding of removal or protection 
under the CAT regulations. As a result, commenters alleged that an 
individual may be returned to a country where he or she would face 
persecution or even death.
    Commenters averred that the Departments failed to provide an 
assessment of how many individuals subject to the new categorical bars 
could meet the higher burdens required for statutory withholding of 
removal and protection under the CAT regulations.
    Response: The Departments maintain that statutory withholding of 
removal under the Act and protection under the CAT regulations are 
sufficient alternatives for individuals who are barred from asylum by 
one of the new bars. As stated, asylum is a discretionary form of 
relief subject to regulation and limitations by the Attorney General 
and the Secretary. See

[[Page 67241]]

INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)). Significantly, the United 
States implemented the non-refoulement provisions of Article 33(1) of 
the Refugee Convention and Article 3 of the CAT through the withholding 
of removal provision at section 241(b)(3) of the Act (8 U.S.C. 
1231(b)(3)), and the CAT regulations, rather than through the asylum 
provisions at section 208 of the Act (8 U.S.C. 1158). See Cardoza-
Fonseca, 480 U.S. at 429, 440-41; see also 8 CFR 208.16 through 208.1; 
1208.16 through 1208.18.
    As recognized by commenters, asylum recipients are granted 
additional benefits not granted to recipients of statutory withholding 
of removal or CAT protection. Although the Attorney General and the 
Secretary are authorized to place limitations on those who receive 
asylum, it is Congress that delineates the attendant benefits to 
receiving relief or protection under the INA. See, e.g., INA 
208(c)(1)(A), (C) (8 U.S.C. 1158(c)(1)(A), (C)) (asylees cannot be 
removed and can travel abroad without prior consent); INA 208(b)(3) (8 
U.S.C. 1158(b)(3)) (allowing derivative asylum for asylee's spouse and 
unmarried children); INA 209(b) (8 U.S.C. 1159(b)) (allowing the 
Attorney General or the Secretary to adjust the status of an asylee to 
that of a lawful permanent resident). Commenters identified various 
benefits that would be denied to individuals who receive statutory 
withholding of removal or protection under the CAT regulations as 
opposed to asylum. Congress chose not to provide the identified 
immigration benefits to recipients of statutory withholding of removal 
under the Act or protection under the CAT regulations. Congress, of 
course, may always revisit its decision; however, that is not the 
proper role of the Executive Branch.
    Moreover, the United States is not required under U.S. law to 
provide the benefits identified by commenters to all individuals who 
seek asylum. For example, the valuable benefit of permanent legal 
status is not required under the United States' international treaty 
obligations.
    In addition, recipients of statutory withholding of removal are 
eligible for numerous public benefits. Specifically, recipients of 
statutory withholding are eligible for Supplemental Security Income 
(``SSI''), the Supplemental Nutrition Assistance Program (``SNAP,'' 
also known as food stamps), and Medicaid for the first seven years 
after their applications are granted,\34\ and for Temporary Assistance 
to Needy Families (``TANF'') during the first five years after their 
applications are granted.\35\ Although asylees are eligible for 
additional benefits administered by HHS and ORR, the Departments 
believe that it is reasonable to exercise their discretion under U.S. 
law to limit these benefits to asylum recipients who do not have or who 
have not been found to have engaged in the sort of conduct identified 
in the bars to asylum eligibility being implemented in this rule 
because doing so incentivizes lawful behavior.
---------------------------------------------------------------------------

    \34\ 8 U.S.C. 1612(a)(1), (a)(2)(A)(iii), (a)(3) (SSI & SNAP); 8 
U.S.C. 1612(b)(1), (b)(2)(A)(i)(III), (b)(3)(C) (Medicaid).
    \35\ 8 U.S.C. 1612(b)(1), (b)(2)(A)(ii)(III), (b)(3)(A)-(B) 
(TANF and Social Security Block Grant); 8 U.S.C. 1622(a), (b)(1)(C); 
8 U.S.C. 1621(c) (state public assistance).
---------------------------------------------------------------------------

    Commenters' assertions that statutory withholding of removal and 
protection under the CAT regulations essentially trap individuals in 
the United States is misplaced. Although an individual who has been 
granted these forms of protection is not guaranteed return to the 
United States if he or she leaves the country, these forms of 
protection do not prevent individuals from traveling outside the United 
States. See Cazun, 856 F.3d at 257 n.16.
    To the extent commenters raised concerns that recipients of 
statutory withholding and CAT protection must apply annually for work 
authorization, the United States is permitted to place restrictions on 
work authorization. As required by Article 17 of the Refugee 
Convention, the United States must accord refugees ``the most 
favourable treatment accorded to nationals of a foreign country in the 
same circumstances.'' Individuals who have received a grant of 
withholding of removal or protection under the CAT regulations are not 
in the same position as an individual who has been granted lawful 
permanent resident status. Rather, these individuals have been ordered 
removed and had their removal withheld or deferred pursuant to a grant 
of withholding of removal or protection under the CAT regulations. The 
United States has opted to grant these individuals work authorization, 
despite their lack of permanent lawful status. However, because these 
individuals are not accorded permanent lawful status, the United States 
has determined that they must submit a yearly renewal for that work 
authorization.
    Significantly, although the burden of proof to establish statutory 
withholding of removal or protection under the CAT regulations is 
higher than to establish asylum, this burden remains in compliance with 
the Protocol and Refugee Convention, which require that ``[n]o 
Contracting State shall expel or return (`refouler') a refugee in any 
manner whatsoever to the frontiers of territories where his life or 
freedom would be threatened on account of his race, religion, 
nationality, membership of a particular social group or political 
opinion,'' and Article 3 of the CAT, which similarly requires that 
``[n]o State Party shall expel, return * * * or extradite a person to 
another State where there are substantial grounds for believing that he 
would be in danger of being subjected to torture.'' As explained by the 
Supreme Court with respect to statutory withholding of removal, the use 
of the term ``would'' be threatened as opposed to ``might'' or 
``could'' indicates that a likelihood of persecution is required. 
Stevic, 467 U.S. at 422. Citing congressional intent to bring the laws 
of the United States into compliance with the Protocol, the Court 
concluded that Congress intended withholding of removal to require a 
higher burden of proof and that the higher burden complied with Article 
33 of the Refugee Convention. Id. at 425-30. Similarly, the ``burden of 
proof for an alien seeking CAT protection is higher than the burden for 
showing eligibility for asylum.'' Lapaix v. U.S. Att'y Gen., 605 F.3d 
1138, 1145 (11th Cir. 2010). As with statutory withholding of removal 
and the risk of persecution, the burden of proof for CAT protection and 
the risk of torture is ``more likely than not.'' Compare 8 CFR 
1208.16(b)(2) (statutory withholding), with 1208.16(c)(2) (CAT 
protection).\36\
---------------------------------------------------------------------------

    \36\ The burden associated with the CAT regulations is 
consistent with congressional intent. As the Third Circuit has 
noted, the U.S. Senate gave its advice and consent to ratification 
of the CAT subject to several reservations, understandings, and 
declarations, including that the ``United States understands the 
phrase `where there are substantial grounds for believing that he 
would be in danger of being subjected to torture,' as used in 
Article 3 of the Convention, to mean `if it is more likely than not 
that he would be tortured.' '' Auguste, 395 F.3d at 132.
---------------------------------------------------------------------------

    In response to commenters who asserted that the Departments failed 
to provide an assessment of how many individuals subject to the new 
categorical bars could meet the higher burdens required for statutory 
withholding of removal and protection under the CAT regulations, the 
Departments note that such an assessment would not be feasible. The 
Departments do not maintain data on the number of asylum applicants 
with criminal convictions or, more specifically, with criminal 
convictions or pertinent criminal conduct that would be subject to the 
bars added by this rule. Without this data, the

[[Page 67242]]

Departments cannot reliably estimate the population affected by this 
rule. In addition, even with these statistics, it is impossible to 
accurately predict in advance whether immigration judges would grant 
these individuals statutory withholding of removal or protection under 
the CAT regulations due to the fact-bound nature of such claims, the 
various factors that must be established for each claim (e.g., 
credibility), independent nuances regarding the claim, evidence 
submitted, and myriad other factors.
6. Policy Concerns
a. Unfair, Cruel Effects on Asylum Seekers
    Comment: Commenters opposed the rule because, among many reasons, 
they alleged that it imposes unfair, cruel effects on aliens who would 
otherwise be eligible for asylum. Commenters alleged that the rule 
constitutes an ``unnecessary, harsh, and unlawful gutting of [ ] asylum 
protections.'' Commenters also alleged that the rule disadvantages 
asylum seekers because, in comparison to other forms of relief, no 
waiver of inadmissibility is available to waive misdemeanor 
convictions, rendering asylum ``disproportionately and 
counterintuitively more difficult to obtain for some of the most 
vulnerable people.'' Many commenters were also concerned that the rule 
denies protection to people who most need it and whom the asylum system 
was designed to protect. For those people, commenters stated, asylum is 
their ``only pathway to safety and protection.''
    Many commenters expressed opposition to the rule by claiming that 
the rule will exclude bona fide refugees from asylum eligibility. 
Relatedly, commenters also opposed the rule because they alleged that 
it prevents aliens from presenting meritorious, legitimate claims. 
Overall, most commenters asserted that the consequence of asylum 
ineligibility was ``disproportionately harsh.'' In support, commenters 
provided various examples of offenses that would, in their view, 
unjustly render an alien ineligible for asylum under the rule: An alien 
in Florida who stole $301 worth of groceries; an alien with two 
convictions for DUI, regardless of whether the alien seeks treatment 
for alcohol addiction or the circumstances of the convictions; an alien 
defensively seeking asylum who has been convicted of a document fraud 
offense related to his or her immigration status; or a mother convicted 
for bringing her own child across the southern border seeking safety. 
Commenters alleged that aliens seeking asylum are typically fleeing 
persecution or death, so ineligibility based on such minor infractions 
constitutes ``punishment that clearly does not fit the crime.'' As 
stated by one commenter, ``Congress designed our current laws to 
provide a safe haven for asylum seekers and their immediate family 
members who are still in danger abroad. If an asylum claim is denied, 
those individuals may be killed, tortured, or subjected to grave harm 
after being deported.''
    Commenters also opposed the rule by claiming that it bars asylum 
for aliens ``simply accused'' of engaging in battery or extreme 
cruelty; commenters believed it to be unfair that the rule could bar 
asylum based on conduct without a conviction.\37\ Commenters opposed 
barring asylum relief based on ``mere allegations'' without any 
``adjudication of guilt.'' One commenter stated that the rule exceeds 
the scope of the Act because, the commenter claimed, the INA allows 
asylum bars to be based only on convictions for particularly serious 
crimes.
---------------------------------------------------------------------------

    \37\ Further discussions of comments specifically regarding 
allegations of gang-related activity and domestic violence are 
contained in sections II.C.3.d and II.C.3.f, respectively.
---------------------------------------------------------------------------

    Many commenters expressed opposition to a wide range of issues 
related to asylum seekers. One commenter expressed concern with the 
treatment of immigrants, stating that mistreatment ``increases blood 
pressure, diabetes, and risks for acute crises like heart attacks[,] 
which harm immigrant communities and negatively impact our healthcare 
system.'' Another commenter expressed opposition to the United States' 
allocation of resources, stating that the redirection of tax cuts and 
expanded military budgets could help to assist asylum seekers. Others 
more broadly expressed general opposition to family separation without 
relating that concern to this rule.
    Response: The Departments disagree that the rule ``guts'' asylum 
protections or that the rule affects otherwise eligible asylum 
applicants in an unfair or otherwise cruel manner. First, as discussed 
elsewhere, asylum is a discretionary form of relief. See INA 
208(b)(1)(A) (8 U.S.C. 1158(b)(1)(A)). Accordingly, aliens who apply 
for asylum must establish that they are statutorily eligible for asylum 
and merit a favorable exercise of discretion. See id.; INA 240(c)(4)(A) 
(8 U.S.C. 8 U.S.C. 1229a(c)(4)(A)); see also Matter of A-B-, 27 I&N 
Dec. 316, 345 n.12 (A.G. 2018), abrogated on other grounds by Grace v. 
Whitaker, 344 F. Supp. 3d 96, 140 (D.D.C. 2018), aff'd in part, Grace 
v. Barr, 965 F.3d 883 (D.C. Cir. 2020). Over time, Congress, the 
Attorney General, and the Secretary have established various categories 
of aliens who are barred from asylum and have established additional 
limitations and conditions on asylum eligibility in keeping with the 
Departments' congressionally provided authority. See INA 208(b)(2)(C), 
(d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)); see also 84 FR at 69641.
    Rather than ``gut'' asylum protections, the rule narrows asylum 
eligibility by adding categorical bars for aliens who have engaged in 
certain criminal conduct that the Departments have determined 
constitutes a disregard for the societal values of the United States; 
clarifies the effect of criminal convictions on asylum eligibility; and 
removes reconsideration of discretionary denials of asylum. See 84 FR 
at 69640. The Departments establish these changes as additional 
limitations and conditions on asylum eligibility, pursuant to their 
statutory authority in sections 208(b)(2)(C) and (d)(5)(B) (8 U.S.C. 
1158(b)(2)(C), (d)(5)(B)).
    Further, the Departments promulgate this rule to streamline 
determinations for asylum eligibility so that those who qualify for and 
demonstrate that they warrant a favorable exercise of discretion might 
be granted asylum and enjoy its ancillary benefits in a more timely 
fashion. Given the rule's clarified conditions and limitations on 
asylum eligibility, the Departments anticipate more timely 
adjudications for two reasons. First, non-meritorious claims will more 
quickly be resolved because the rule eliminates the current system of 
case-by-case adjudications and application of the categorical approach 
with respect to aggravated felonies, thereby freeing up time and 
resources that can be subsequently allocated towards adjudication of 
meritorious asylum claims. Second, the Departments believe that, 
because fewer people would be eligible for asylum, fewer applications 
may be filed overall, thereby reducing the total number of asylum 
applications requiring adjudication. As a result, the Departments could 
allocate their time and resources to asylum applications that are more 
likely to be meritorious. In this way, the rule does not eliminate 
protection for those who need it most or the benefits available to 
asylees; instead, it may actually allow for those people to more 
quickly receive protection.
    In response to commenters who claim that the rule prevents aliens 
from seeking asylum who otherwise have meritorious claims, the 
Departments

[[Page 67243]]

emphasize that the rule changes asylum eligibility. Accordingly, 
despite commenters' assertions, an alien who is ineligible under the 
provisions of this rule would not, in fact, have a meritorious claim.
    The Departments do not believe that the examples of misdemeanors 
that commenters provided in response to the request for public feedback 
about whether the proposed rule was over-inclusive warrant altering the 
scope of the proposed rule. Regarding certain referenced examples, the 
Departments strongly disagree that the rule employs too harsh a 
consequence or that the ``punishment does not fit the crime.'' The bars 
articulated in this rule indicate the Departments' refusal to harbor 
individuals who have committed conduct that the Departments have 
determined is undesirable. This is not a punishment. For example, the 
Departments strongly oppose driving under the influence and disagree 
that two DUI convictions, regardless of the circumstances or harm 
caused to others, do not warrant ineligibility for asylum. As 
previously stated, driving under the influence represents a blatant 
disregard for the laws of the United States. Further, the Departments 
disagree that document fraud does not warrant ineligibility for asylum, 
as it undermines the integrity of our national security and the rule of 
law. Overall, the Departments disagree that such examples demonstrate 
that revision of the rule is warranted.
    The Departments further disagree that the rule disadvantages asylum 
seekers by failing to provide a waiver of inadmissibility for 
misdemeanor convictions. No such waiver is required by statute in the 
asylum eligibility context. Further, the Departments reiterate that 
alternative forms of relief or protection may still be available for 
aliens who are ineligible for asylum under the rule. See 84 FR at 69658 
(explaining that an alien will still be eligible to apply for statutory 
withholding of removal or protection under regulations implementing 
U.S. obligations under Article 3 of the CAT); see also INA 241(b)(3) (8 
U.S.C. 1231(b)(3)); 8 CFR 208.16 through 208.18; 1208.16 through 
1208.18; cf. Negusie v. Holder, 555 U.S. 511, 527-28 (2009) (Scalia, J. 
and Alito, J., concurring) (noting that, if asylum is denied under the 
persecutor bar to an alien who was subject to coercion, that alien 
``might anyway be entitled to protection under the Convention Against 
Torture''). Accordingly, aliens who are ineligible for asylum under the 
rule will not ``automatically'' be returned to countries where they 
fear persecution or torture, contrary to commenters' assertions.
    The Departments emphasize that the rule changes the asylum 
eligibility regulations, but it does not affect the regulatory 
provisions for refugee processing under 8 CFR parts 207, 209, 1207, and 
1209. Further, it does not categorically exclude ``bona fide refugees'' 
from the United States.
    The INA does not preclude conduct-based bars. In fact, the statute 
already contemplates conduct-based bars in sections 208(b)(2)(A)(i), 
(iii)-(v) of the Act (8 U.S.C. 1158(b)(2)(A)(i), (iii)-(v)). Thus, 
commenters' concerns that the rule exceeds the scope of the statute are 
unwarranted, and the Departments choose, pursuant to statutory 
authority, to condition and limit asylum eligibility using conduct-
based bars.
    Relating to commenters' general humanitarian concerns for asylum 
seekers, such concerns are outside of the scope of this rulemaking, and 
the Departments decline to address them. Whether the current statutory 
framework appropriately addresses all aspects of the problems faced by 
aliens seeking asylum is a matter for Congress; here, the Departments 
merely exercise their authority under the discretion afforded to them 
by the existing statutes.
b. Incorrect Assumptions Regarding Criminal Convictions
    Comment: Commenters alleged that the Departments promulgated the 
proposed rule based on incorrect assumptions regarding criminal 
convictions. Generally, commenters asserted that a conviction, without 
more, is both an unreliable predictor of future danger and an 
unreliable indicator of past criminal conduct. As an example, 
commenters stated that an alien may plead guilty to certain crimes to 
avoid the threat of a more severe sentence.
    Commenters also asserted that not every noncitizen convicted of a 
crime punishable by more than one year in prison constitutes a danger 
to the community, which relates to the more general proposition 
advanced by commenters that the length of a sentence does not 
necessarily correlate with the consequential nature of the crime. One 
commenter mentioned that innocence and biased enforcement concerns 
underlie convictions and that there is a ``growing understanding 
domestically that a criminal conviction is a poor metric for assessing 
current public safety risk.'' Another commenter disagreed with the 
Departments' use of ``public safety'' as a justified reason for 
restricting liberty--in this case, liberty of asylum seekers.
    Commenters claimed that the Departments provided no evidence 
underlying these assumptions. Further, commenters alleged that the 
proposed rule is arbitrary and capricious in violation of the 
Administrative Procedure Act (``APA'') because of these faulty 
assumptions.
    Response: The Departments disagree that this rule was based on 
incorrect assumptions. The Departments have concluded that convictions 
with longer sentences tend to be associated with more consequential 
crimes and that offenders who commit such crimes are generally more 
likely to be dangerous to the community, and less deserving of the 
benefit of asylum, than offenders who commit crimes punishable by 
shorter sentences. See 84 FR at 69646. This determination is supported 
throughout the nation's criminal law framework. For example, for 
sentencing for Federal crimes, criminal history serves as a ``proxy'' 
for the need to protect the public from the defendant's future crimes. 
See United States v. Hayes, 762 F.3d 1300, 1314 n.8 (11th Cir. 2008); 
see also U.S. Sentencing Guidelines Manual Sec.  4A1.2 cmt. Background 
(U.S. Sentencing Comm'n 2018). Further, in numerous Federal statutes 
and the Model Penal Code, crimes with a possible sentence exceeding one 
year constitute ``felonies'' regardless of the assumptions and 
implications referenced by the commenters. See, e.g., 84 FR at 69646 
(providing 5 U.S.C. 7313(b); Model Penal Code Sec.  1.04(2); and 1 
Wharton's Criminal Law Sec.  19 & n.23 (15th ed.) as exemplary 
authorities that define ``felony,'' in part, by considering whether the 
sentence may exceed one year). Accordingly, and pursuant to their 
statutory authority, the Departments have determined that similarly 
conditioning asylum eligibility on criminal convictions with possible 
sentences of more than one year is proper and reasonable because such 
convictions are general indicators of social harm and conduct that the 
Departments have deemed undesirable.
    Regarding commenters' claims that the proposed rule is arbitrary 
and capricious because it is based on faulty assumptions, the 
Departments respond in section II.D.1, which addresses comments related 
to the APA and other regulatory requirements.
c. Disregards Criminal Activity Linked to Trauma
    Comment: Many commenters expressed opposition to the rule by 
alleging that it disregards the reality that criminal activity is 
oftentimes linked to trauma experienced by asylum seekers

[[Page 67244]]

in their countries of origin or on their journey to safety. Citing 
statistics and evidence regarding the vulnerability of asylum seekers 
and the high likelihood that they have experienced various forms of 
trauma related to the circumstances from which they are trying to 
escape and a lack of affordable healthcare, commenters asserted that 
asylum seekers are at a higher risk of self-medicating with drugs or 
alcohol, which in turn would increase the likelihood for asylum seekers 
to be involved in the criminal justice system and, as a result of the 
rule, ineligible for asylum. Commenters stated that aliens with 
substance use disorders, drug-related convictions, and other related 
addictions should be provided with ``treatment and compassion'' and not 
barred from asylum eligibility. A commenter stated that the rule 
renders aliens who have experienced persecution and subsequent trauma 
``at greater risk of being returned to a country where they will only 
be further tortured and harmed.''
    Commenters claimed that denying aliens who have experienced such 
trauma the opportunity to present countervailing factors regarding 
their subsequent or associated criminal activity was ``simply cruel.'' 
Commenters alleged that the rule ignores the fact that these aliens 
likely struggle with post-traumatic stress disorder, other untreated 
mental health problems such as anxiety or depression, substance use 
disorders or addictions, self-medication, poverty, and over-policing. 
Accordingly, commenters stated that the rule would ``further 
marginalize asylum seekers already struggling with trauma and 
discrimination'' and exclude ``those convicted of offenses that are 
coincident to their flight from persecution.''
    Some commenters emphasized the trauma experienced by children prior 
to arriving in the United States and in ORR custody. Those commenters 
also emphasized that many children are then convicted and tried as 
adults for crimes stemming from that trauma, which, under the NPRM, 
would bar them from asylum. The commenters stated that such children, 
if given appropriate treatment, support, and services, are able to 
recover rather than remain in the juvenile or criminal justice systems. 
Accordingly, commenters disagreed with the NPRM's approach of 
categorically barring such individuals and preventing them from 
presenting context and mitigating evidence for their crimes.
    Response: The Departments acknowledge the trauma aliens may face 
but note that aliens barred from asylum eligibility may still be 
eligible for alternative measures of protection precluding their return 
to a country where they experienced torture or persecution resulting in 
trauma. See 84 FR at 69642. The Departments, however, disagree that the 
possibility of personal trauma or other strife is sufficient to 
overcome the dangerousness or harms to society posed by the offenders 
subject to the sorts of bars to asylum implemented by the rule because, 
as discussed in the proposed rule, possessors and traffickers of 
controlled substances ``pose a direct threat to the public health and 
safety interests of the United States.'' 84 FR at 69654; accord Ayala-
Chavez, 944 F.2d at 641 (``[T]he immigration laws clearly reflect 
strong Congressional policy against lenient treatment of drug 
offenders.'' (quoting Blackwood, 803 F.2d at 1167)). Also, commenters' 
suggestions regarding treatment, support, and services for children who 
have experienced trauma are outside the scope of this rulemaking.
    Finally, the Departments note that, consistent with the INA's 
approach to controlled substance offenses, for example in the 
removability context under INA 237(a)(2)(B)(i) (8 U.S.C. 
1227(a)(2)(B)(i)), the rule does not penalize a single offense of 
marijuana possession for personal use of 30 grams or less. See 84 FR at 
69654. The Departments have concluded that allowing this limited 
exception to application of the new bar appropriately balances the 
competing policy objectives of protecting the United States from the 
harms associated with drug trafficking and possession, on the one hand, 
and the goal of not imposing unduly harsh penalties on persons subject 
to the new bars, on the other.
d. Problems With Existing Asylum System
    Comment: Commenters opposed the NPRM because they alleged that the 
current overall asylum system is too harsh. Specifically, commenters 
stated that the current bars to asylum are too harsh and overly broad, 
given that all serious crimes are already considered as part of the 
discretionary analysis and that asylum seekers are already heavily 
vetted and scrutinized. Accordingly, commenters stated that the asylum 
restrictions should be narrowed rather than expanded.
    Specifically, commenters asserted that the current ``harsh system'' 
places a high evidentiary burden on applicants to establish eligibility 
and disregards the danger they may face if they are sent back to their 
countries.\38\ Commenters claimed that conditions in Mexico, where many 
asylum seekers are sent, are dangerous, and that asylum seekers are 
killed or experience other harms. In addition, commenters referenced 
numerous other barriers to asylum--the complex ``web'' of laws and 
regulations that asylum seekers must navigate, sometimes from jail or 
without counsel, and other recent policies such as the MPP, see DHS, 
Policy Guidance for Implementation for the Migrant Protection Protocols 
(Jan. 25, 2019), https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf, and the 
``third-country transit bar,'' see Asylum Eligibility and Procedural 
Modifications, 84 FR 33829 (July 16, 2019).
---------------------------------------------------------------------------

    \38\ Commenters also mentioned numerous other alleged barriers 
to asylum unrelated to the NPRM, including the required time between 
an application's submission and the attached photo's taking, 
English-only application forms, and additional concerns. The 
Departments acknowledge the general concerns with the asylum system, 
but because these concerns do not relate to particular provisions of 
the NPRM, the Departments do not address them further.
---------------------------------------------------------------------------

    Further, commenters asserted that the current criminal bars to 
asylum eligibility are too broad, emphasizing, for example, that the 
term ``aggravated felony,'' which is a ``particularly serious crime'' 
that renders the applicant ineligible for asylum, has come to encompass 
``hundreds of offenses, many of them neither a felony nor aggravated, 
including petty offenses and misdemeanors * * *. A single one of these 
past offenses eliminates an individual's eligibility for asylum, with 
no regard to the danger that person will face if sent back to their 
country.''
    Commenters also explained that immigration judges currently have 
full discretion to deny asylum to any alien who is not categorically 
barred from relief but who has been convicted of criminal conduct. 
Accordingly, commenters asserted that the existing system is sufficient 
to ensure that relief is denied to those who may be dangerous to a 
community, while at the same time providing latitude for adjudicators 
to consider unique challenges that asylum seekers face resulting from 
the harm they have faced. In light of these facts, commenters opposed 
adding more bars and encouraged the Departments to instead narrow the 
bars.
    Response: Commenters' concerns regarding the entire asylum system, 
including the asserted complex ``web'' of asylum laws and regulations, 
are outside the scope of this rulemaking. The rule adds categorical 
bars to asylum

[[Page 67245]]

eligibility; clarifies the effect of criminal convictions and, in one 
instance, criminal conduct, on asylum eligibility; and removes 
automatic reconsideration of discretionary denials of asylum. See 84 FR 
at 69640. The Departments do not otherwise propose to amend the asylum 
system established by Congress and implemented by the Departments 
through rulemaking and policy over the years.
    The Departments note here, and the proposed rule acknowledged, in 
part, see, e.g., 84 FR at 69645-46, that, although immigration judge 
discretion, BIA review, and scrutiny of asylum applicants could achieve 
results similar to some of the proposed provisions, the rule 
streamlines the system to increase efficiency. By eliminating the 
current system of case-by-case adjudications and application of the 
categorical approach with respect to aggravated felonies, the 
Departments anticipate that adjudication of asylum claims will be a 
much quicker process. In addition, the Departments believe that, given 
the clarified conditions and limitations on asylum eligibility, fewer 
non-meritorious or frivolous asylum claims may be filed overall, with 
the result that the Departments' adjudication resources would be 
allocated, from the beginning, to claims that are more likely to have 
merit. Overall, the Departments maintain that a rule-based approach to 
accomplish that goal is preferable. See 84 FR at 69646.
    The Departments reiterate that asylum is a discretionary benefit; 
the Departments work in coordination to establish requirements, limits, 
and conditions, which may include evidentiary burdens. See INA 
208(b)(2)(C), (d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)). Contrary 
to the commenters' assertions that the rule disregards the dangers 
faced by aliens, the rule noted alternative forms of protection for 
which aliens may apply, even if they are subject to an asylum bar. See 
84 FR at 69642. Nevertheless, many commenters' concerns referencing 
allegedly dangerous conditions in Mexico, the effects of the MPP, and 
the third-country transit bar are also outside the scope of this 
rulemaking.
    The Departments disagree with commenters' assertions that the 
asylum bars should be narrowed. Given efficiency interests, the 
Departments posit that expanded categorical bars will streamline the 
asylum system, with the result that asylum benefits may be granted more 
quickly to eligible aliens.
e. Inefficiencies in Immigration Proceedings
    Comment: Commenters opposed the rule because they alleged that 
various provisions would result in inefficiencies and exacerbate an 
already inefficient, backlogged, and under-staffed immigration system.
    First, commenters stated that requiring adjudicators to make 
``complex determinations regarding the nature and scope of a particular 
conviction or, in the case of the domestic violence bar, conduct,'' 
would lead to inefficiencies. Many commenters stated that the rule 
effectively requires adjudicators to ``engage in mini-trials into 
issues already adjudicated by the criminal law system based on evidence 
that may not have been properly tested for its veracity in the criminal 
process,'' thereby decreasing efficiency. Further, commenters stated 
that adjudicators will have to ``conduct a separate factual inquiry 
into the basis for a criminal conviction or allegations of criminal 
conduct to determine whether the individual is eligible for asylum,'' 
instead of relying on adjudications from the criminal legal system.
    Other commenters stated that the rule is especially inefficient in 
the case of family members' asylum eligibility. Commenters alleged 
that, under the proposed rule, family members' claims will be 
adjudicated separately and potentially before different adjudicators. 
Given that family members' claims are oftentimes interrelated and 
children are less able to sufficiently explain asylum claims, 
commenters concluded that the rule, especially as it relates to family 
claims, further increases inefficiencies in the system.
    Commenters also stated that these ramifications directly contradict 
one of the rule's stated justifications of increased efficiency and 
alleged that the rule increased the time and expense necessary to 
process asylum claims. One commenter alleged that this will decrease 
the ability of asylum seekers to access healthcare, food, and housing. 
That commenter also averred that asylum seekers will likely have to 
request to reschedule interviews, which will introduce further delay, 
because the rule's filing deadlines restrict applicants' ability to 
provide supplementary evidence. Further, commenters alleged that the 
Departments failed to provide information or research to explain how 
the rule would increase efficiencies in the system.
    Many commenters asserted that the rule will require a highly 
nuanced, resource-intensive inquiry that will prolong asylum 
proceedings and ``invariably lead to erroneous determinations'' or 
disparate results, with the consequence that appeals will increase and 
consume further Departmental resources.
    Response: The Departments disagree with the commenters' assertions 
regarding inefficiencies.
    First, adjudicators currently conduct a factual inquiry similar to 
the inquiry contemplated by the new bars in other immigration contexts. 
See 84 FR at 69652 (providing, as examples, the removability context in 
INA 237(a)(1)(E) (8 U.S.C. 1227(a)(1)(E)) and consideration of the 
persecutor bar in INA 208(b)(2)(A)(i) (8 U.S.C. 1158(b)(2)(A)(i))). 
Thus, adjudicators are adequately trained and equipped to conduct such 
analyses.
    Second, the Departments emphasize that this rule is just one tool 
for increasing efficiencies in the immigration adjudications process 
and for correcting what the Departments view as problematic rules 
regarding asylum eligibility. This rule is not intended to correct all 
inefficiencies or to be a complete panacea, and DOJ has implemented 
numerous initiatives recently to address inefficiencies where 
appropriate. See, e.g., EOIR, Policy Memorandum 20-07: Case Management 
and Docketing Practices (Jan. 31, 2020), https://www.justice.gov/eoir/page/file/1242501/download (implementing efficient docketing 
practices); EOIR, Policy Memorandum 19-11: ``No Dark Courtrooms'' (Mar. 
31, 2019), https://www.justice.gov/eoir/file/1149286/download 
(providing policies to reduce and minimize the impact of unused 
courtrooms and docket times to address the caseload and backlog); EOIR, 
Policy Memorandum 19-05: Guidance Regarding the Adjudication of Asylum 
Applications Consistent with INA Sec.  208(d)(5)(A)(iii) (Nov. 19, 
2018), https://www.justice.gov/eoir/page/file/1112581/download 
(providing policy guidance to effectuate the statutory directive to 
complete asylum adjudications within 180 days of filing, absent 
extraordinary circumstances); see also DOJ, Memorandum for the 
Executive Office for Immigration Review: Renewing Our Commitment to the 
Timely and Efficient Adjudication of Immigration Cases to Serve the 
National Interest (Dec. 5, 2017), https://www.justice.gov/opa/press-release/file/1015996/download (reiterating EOIR's commitment to 
efficient adjudication).
    Although the Departments agree that the current system for 
adjudicating asylum applications frequently fails to meet the statutory 
deadline of completing such cases within 180 days

[[Page 67246]]

absent exceptional circumstances, INA 208(d)(5)(A)(iii) (8 U.S.C. 
1158(d)(5)(A)(iii)) the Departments believe this rulemaking will 
improve efficiency. The Departments direct commenters to the proposed 
rule at 84 FR at 69645-46 for an extensive explanation of 
inefficiencies addressed through this rulemaking, which provides 
adequate ``information and research'' describing how the rule will 
increase efficiencies. Notably, courts have often recognized that rule-
based approaches promote more efficient administration than wholly 
discretionary, case-by-case determinations. See Lopez v. Davis, 531 
U.S. 230, 244 (2001) (observing that ``a single rulemaking proceeding'' 
may allow an agency to more ``fairly and efficiently'' address an issue 
than would ``case-by-case decisionmaking'' (quotation marks omitted)); 
Marin-Rodriguez v. Holder, 612 F.3d 591, 593 (7th Cir. 2010) (``An 
agency may exercise discretion categorically, by regulation, and is not 
limited to making discretionary decisions one case at a time under 
open-ended standards.''); cf. Baylor Cty. Hosp. Dist. v. Price, 850 
F.3d 257, 263 (5th Cir. 2017) (``DHHS opted for a bright-line rule 
after considering its lack of agency resources to make case-by-case 
judgments'' because ``the statutory text had to be articulated properly 
and in an administratively efficient way.''). The Departments 
acknowledge the backlog in asylum applications, see EOIR, Adjudication 
Statistics: Total Asylum Applications (July 14, 2020), https://www.justice.gov/eoir/page/file/1106366/download, and the Departments, 
as a matter of policy, choose to address this backlog and resulting 
inefficiencies in part through this rulemaking.
    The backlogged asylum system presents challenges; however, the 
Departments disagree with commenters regarding how best to address the 
backlog. The Departments disagree that the rule will prolong 
proceedings and lead to erroneous determinations, thus allegedly 
prompting more appeals. On the contrary, the Departments have concluded 
that the rule will increase efficiencies by eliminating the current 
system of case-by-case adjudications and application of the categorical 
approach with respect to aggravated felonies as they apply to asylum 
adjudications. See 84 FR at 69646-47. The Departments have determined 
that this rule-based approach is preferable, partly because, given the 
specific context of asylum eligibility, it will result in consistent 
treatment of asylum seekers with respect to criminal convictions. See 
id.
    Finally, concerns regarding access to healthcare, food, and 
housing, are outside the scope of this rulemaking.
f. Disparate Impact on Certain Persons
    Comment: Many commenters opposed the rule because they claimed it 
will harm or disparately affect asylum applicants whom commenters deem 
the most vulnerable people in society. Commenters explained that, 
although asylum seekers and refugees are generally vulnerable, the rule 
further implicates other vulnerable groups, such as LGBTQ individuals; 
victims of trafficking; communities of color, especially youth, and 
other minority ethnic groups; individuals who have experienced trauma, 
coercion, abuse, or assault; people with mental illness, especially 
those lacking adequate mental health services, such as children in ORR 
custody; people struggling with addictions and related convictions, 
regardless of whether they have sought treatment; parents who cross the 
border with children to seek safety; individuals convicted of document 
fraud who unknowingly use fraudulent documents or unscrupulous services 
to procure immigration documents; victims of domestic or intimate 
violence; people from Central America and the ``Global South''; and 
low-income people. Commenters were concerned that the rule 
categorically bars these populations without consideration of 
mitigating factors, thereby potentially resulting in the return of such 
people to countries and communities where they initially experienced 
discrimination, bias, trauma, and violence. In a related vein, 
commenters were concerned that these populations are more prone to be 
convicted of minor offenses that will, under the rule, preclude them 
from asylum relief. For example, one commenter speculated that a 
trafficking victim who leaves a child alone at home while on a brief 
trip to a store could be convicted of ``endangering the welfare of a 
child'' and then barred from asylum.
    Commenters especially emphasized concerns regarding the effect of 
the rule on two groups: LGBTQ individuals, especially transgender 
women; and trafficking victims.\39\ Regarding LGBTQ individuals, 
multiple commenters asserted that the rule constitutes a ``unique 
threat'' because those individuals have likely faced:
---------------------------------------------------------------------------

    \39\ Commenters also expressed concerns for communities of 
color. These concerns, however, are addressed in section II.C.3.d 
because commenters' concerns on this point were primarily connected 
to concerns regarding the gang-related offenses included in the 
rule.

a high degree of violence and disenfranchisement from economic and 
political life in their home countries. * * * Members of these 
communities also experience isolation from their kinship and 
national networks following their migration. This isolation, 
compounded by the continuing discrimination towards the LGBTQ 
population at large, leave[s] many in the LGBTQ immigrant community 
vulnerable to trafficking, domestic violence, and substance abuse, 
---------------------------------------------------------------------------
in addition to discriminatory policing practices.

    One commenter explained that some LGBTQ individuals are charged 
with a variety of crimes in connection with their private, consensual 
conduct because of differences in discriminatory laws regarding this 
population around the world.
    For trafficking victims, commenters explained that the rule bars 
them from asylum when they are only involuntarily part of a trafficking 
scheme and will likely face subsequent retaliation and other harms from 
their traffickers. Commenters were especially concerned that the rule 
denies asylum benefits to people who desperately need and will greatly 
benefit from them. Further, commenters asserted that alternative forms 
of relief are oftentimes insufficient for trafficking victims. For 
example, commenters explained that trafficking victims who have been 
removed are not eligible for T nonimmigrant status. Similarly, 
commenters explained that trafficking victims who are forced by their 
traffickers to commit other crimes may then be ineligible for other 
forms of relief under certain crime bars. Commenters also explained 
that trafficking victims typically receive intervention and other 
support services only after coming into contact with law enforcement; 
thus, this rule would preclude them from such resources.
    Commenters explained that, not only are these people more prone to 
experiencing harms if they are barred from asylum, but also these 
people are more prone to initially experience harms that subsequently 
result in their involvement in the criminal justice system, which 
would, under this rule, bar them from asylum. For these reasons, 
commenters opposed the rule.
    Response: To the extent that commenters ask the Departments to 
establish unique protections for these referenced groups, such 
protections are outside the scope of this particular rulemaking. 
Congress has chosen to provide special protections for certain groups, 
such as unaccompanied alien children, and Congress could choose to

[[Page 67247]]

similarly extend protections to LGBTQ persons or other groups. Without 
such congressional action, however, the Departments are merely 
implementing the statutory framework as it currently exists. Further, 
to the extent that the commenters posit that the noted groups are more 
prone to engage in criminal conduct implicated by the rule--e.g., 
fraud, DUI, human smuggling, gang activity, drug-related crimes--the 
Departments have no evidence that such groups are more likely to commit 
such crimes than any other groups of asylum applicants, and commenters 
did not provide evidence that would suggest otherwise. Thus, the 
Departments reject the assertion that the rule would have a disparate 
impact on discrete groups, absent evidence such groups are more likely 
to engage in criminal behavior addressed by the rule.
    The rule includes several provisions that act, in part, to preclude 
returning vulnerable persons, including LGBTQ individuals and 
trafficking victims, to countries where they may have experienced or 
fear, as referenced by the commenters, discrimination, bias, trauma, 
and violence. As an initial matter, regardless of asylum eligibility, 
vulnerable persons may be eligible for statutory withholding of removal 
and protection under the CAT regulations. See 84 FR at 69642. Next, the 
rule includes an exception to the bar based on domestic assault or 
battery, stalking, or child abuse. See 8 CFR 208.13(c)(6)(v)(C), 
(vii)(F), 1208.13(c)(6)(v)(C), (vii)(F). The exception mirrors the 
provisions in the statute at INA 237(a)(7)(A) (8 U.S.C. 1227(a)(7)(A)) 
(removability context), but has one significant difference. In the 
removability context, applicants claiming this exception must satisfy 
the statutory criteria and be granted a discretionary waiver. Under the 
rule, however, applicants claiming the exception must only satisfy the 
criteria; no waiver is required. See 84 FR at 69653. This exception 
exists so that proper considerations can be taken of the vulnerability 
of domestic violence victims. The Departments believe this exception 
strikes the proper balance between providing protections for domestic 
violence victims while advancing the goals of reducing the incidence of 
domestic violence and protecting the United States from the sorts of 
conduct that would subject offenders to the new bars.
    Commenters' concerns regarding vulnerable individuals' increased 
likelihood of convictions for minor offenses for certain vulnerable 
groups relate to the larger criminal justice system and accordingly 
fall outside the scope of this rulemaking. See section II.C.6.k for 
further discussion. Moreover, as noted above, the Departments have no 
evidence--and commenters provided none--that the groups identified by 
commenters are more prone to engage in criminal conduct implicated by 
the rule that would increase the likelihood of a conviction for, e.g., 
fraud, DUI, human smuggling, gang activity, or drug-related crimes.
    Next, this rule expands asylum ineligibility based on offenses 
committed in the United States, not abroad. See 84 FR at 69647 n.5. 
Thus, the rule does not expand asylum ineligibility for trafficking 
victims forced to commit crimes abroad or LGBTQ individuals whose 
private, consensual acts are criminalized abroad. Indeed, case law has 
long recognized that some criminal prosecutions abroad, if pretextual, 
can, for example, form the basis of a protection claim. See, e.g., 
Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996) (noting ``two 
exceptions to the general rule that prosecution does not amount to 
persecution--disproportionately severe punishment and pretextual 
prosecution''); Matter of S-P-, 21 I&N Dec. 486, 492 (BIA 1996) (noting 
that ``prosecution for an offense may be a pretext for punishing an 
individual'' on account of a protected ground). The rule does not alter 
such case law.
g. Adjudicator Discretion
    Comment: Many commenters opposed the rule out of concern that it 
strips adjudicators of discretion. First, commenters stated that it is 
crucial that adjudicators consider countervailing factors ``to 
determine whether the circumstances merit such a harsh penalty.'' 
Another commenter explained that ``[d]iscretion allows an adjudicator 
to consider a person's entire experience, including those factors that 
led to criminal behavior as well as the steps towards rehabilitation 
that individuals have taken.'' Commenters claimed that effective use of 
discretion is crucial in these circumstances: ``The existing framework 
for determining if an offense falls within the particularly serious 
crime bar already provides the latitude for asylum adjudicators to deny 
relief to anyone found to pose a danger to the community.'' Thus, 
commenters alleged that the rule's removal of that discretion is 
punitive and unnecessary. One commenter stated that the purpose of the 
NPRM seems to be to remove all discretion from adjudicators to consider 
each case on a case-by-case basis. Another commenter underscored the 
importance of adjudicators retaining discretion to make individualized 
determinations because Congress established asylum as a discretionary 
form of relief.
    One commenter alleged that the rule diminishes due process 
protections, stating that, ``by preventing the use of discretion in 
such cases[,] the proposed rules have a chilling effect on due process. 
Ensuring adjudicators have discretion to grant asylum under such 
circumstances allows asylum seekers to have a fair day in court and 
guards against further injustice resulting from errors that might have 
occurred in the criminal legal system.''
    Commenters also alleged that the proposed rule incorrectly raises 
the burden of proof to establish that a favorable grant of discretion 
is warranted so that it is equivalent to the burden required to 
establish a well-founded fear of persecution. These commenters averred 
that this is problematic in the face of contrary case law that requires 
a more cautious, restrained view of the Attorney General's and the 
Secretary's discretion and that cautions against permitting the 
Departments unchecked power and unrestrained discretion in making 
asylum determinations. Commenters first cited Matter of Pula, 19 I&N 
Dec. at 474, arguing that it encouraged a restrained view of discretion 
because the Board asserted that ``the danger of persecution should 
generally outweigh all but the most egregious of adverse factors.'' 
Commenters averred that the Supreme Court cautioned against unlimited 
discretion in Moncrieffe, 569 U.S. at 200-01, by holding that the 
government must follow the categorical approach. Similarly, commenters 
cited Delgado, 648 F.3d at 1097, to support this proposition because 
the Ninth Circuit ``first assert[ed] its jurisdiction to review the 
Attorney General's discretionary authority'' and overruled an earlier 
decision that the jurisdiction-stripping provision at 8 U.S.C. 1252 
barred the court's judicial review.
    On the other hand, in the context of convictions or conduct related 
to domestic violence, battery, or extreme cruelty, commenters also 
opposed the amount of discretion afforded to adjudicators because the 
rule allegedly provides no clear guidance for the adjudicator's 
inquiry, analysis, and resulting determination. For example, commenters 
asserted that it is unclear what constitutes ``reliable evidence'' 
under the rule. Commenters were concerned that this would result in 
inconsistent decisions or diminished due process. Further, commenters 
were also concerned because determinations under the rule would be 
discretionary

[[Page 67248]]

and therefore non-appealable in most cases.
    Response: Congress has authorized the Attorney General and the 
Secretary to, by regulation, limit and condition asylum eligibility 
consistent with the statute. INA 208(b)(2)(C), (d)(5)(B) (8 U.S.C. 
1158(b)(2)(C), (d)(5)(B)). Through this rule, the Departments exercise 
such authority by establishing categorical bars to asylum that 
constitute such limits and conditions. The Departments disagree that 
adjudicators must be afforded discretion to consider mitigating factors 
in determining asylum eligibility in all circumstances. Given the 
challenges faced by the agencies and the operative functioning of 
current categorical bars, see INA 208(b)(2)(A) (8 U.S.C. 
1158(b)(2)(A)), the Departments add the new categorical bars, in part, 
to improve the efficient processing of asylum claims. The regulatory 
changes are not punitive or intended to revoke all discretion from 
adjudicators, as commenters alleged; rather, the Departments promulgate 
this rule to facilitate and streamline processing of asylum claims. See 
e.g., 84 FR at 69646-47, 69657.
    The rule does not diminish due process. As discussed above, the 
discretionary benefit of asylum is not a liberty or property interest 
subject to due process protections. See Yuen Jin, 538 F.3d at 156-57; 
Ticoalu, 472 F.3d at 11 (citing DaCosta, 449 F.3d at 49-50). In other 
words, ``[t]here is no constitutional right to asylum per se.'' Mudric, 
469 F.3d at 98. The Departments disagree that affording discretion to 
adjudicators in lieu of promulgating the additional bars is a 
preferable way to process asylum applications. Moreover, nothing in 
this rule prevents individuals from appealing the immigration judge's 
determination. See 8 CFR 1003.38 (appeals with the BIA). Further, as 
explained in section II.C.6.k, resolving errors in the criminal justice 
system is beyond the scope of this rulemaking.
    The Departments reiterate their authority to limit and condition 
asylum eligibility consistent with the statute. See INA 208(b)(2)(C), 
(d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)). Accordingly, the 
Departments may promulgate bars that govern determinations regarding 
asylum eligibility. In light of this authority, the Departments also 
disagree with commenters that the rule provides adjudicators with 
insufficient guidance for the sound exercise of their judgment in 
determining eligibility for asylum. For example, the proposed rule 
provides clarity surrounding determinations whether a conviction is a 
felony by applying the relevant jurisdiction's definition; also, it 
provides detailed guidance on vacated or expunged convictions, and 
modified convictions and sentences. 84 FR at 69646, 69654-55. 
Immigration judges and asylum officers currently exercise discretion to 
determine whether an asylum seeker merits relief for a wide range of 
reasons, many of which are not similarly set out or defined in the Act 
or by regulation. See, e.g., Matter of A-B-, 27 I&N Dec. 316 at 345 
n.12 (outlining factors for consideration in discretionary asylum 
determinations). The Departments accordingly do not believe that the 
new bars require immigration judges or asylum officers to exercise 
significantly more discretion than those judges or officers already do.
    Further, the Departments note that providing more exacting 
guidance, as some commenters suggested, would impede the very nature of 
legal discretion, as demonstrated by its definition: ``[f]reedom in the 
exercise of judgment,'' or ``the power of free decision-making.'' 
Black's Law Dictionary (11th ed. 2019); see also ``Discretion,'' 
Merriam-Webster, https://www.merriam-webster.com/dictionary/discretion 
(last updated Feb. 15, 2020) (defining ``discretion'' as the ``power of 
free decision or latitude of choice within certain legal bounds''). 
Doing so would thus aggravate the problems that some commenters 
perceived in the rule's alleged lack of sufficient flexibility.
    Next, nothing in the final rule changes the standard of proof as 
regards an individual's ability to demonstrate that he or she warrants 
a positive grant of discretion. As an initial matter, citing a standard 
of proof for discretion is a misnomer. Rather, the determination of 
whether an alien warrants a discretionary grant of asylum is an 
analysis that requires reviewing the circumstances of the case. In 
determining whether the alien warrants a discretionary grant of asylum, 
the immigration judge considers a number of factors and considerations. 
See Matter of Pula, 19 I&N Dec. at 473-74 (outlining how adjudicators 
should weigh discretionary factors in applications for asylum). By 
contrast, the final rule sets forth additional limitations on 
eligibility for asylum, which are separate from the discretionary 
determination. As a result, the final rule does not create a standard 
of proof for establishing that an alien warrants a discretionary grant 
of asylum.
    Similarly, the Departments disagree with commenters' assertions 
that the final rule violates Supreme Court and court of appeals 
precedent regarding the amount of discretion granted to the Attorney 
General and the Secretary. As explained, Congress, in IIRIRA, vested 
the Attorney General with broad authority to establish conditions or 
limitations on asylum. See 110 Stat. at 3009-692. Congress also vested 
the Attorney General with the authority to establish by regulation 
``any other conditions or limitations on the consideration of an 
application for asylum,'' so long as those limitations are ``not 
inconsistent with this chapter.'' INA 208(d)(5)(B) (8 U.S.C. 
1158(d)(5)(B)). This broad authority is not undercut by the cases cited 
by commenters. Neither Moncrieffe nor Delgado presumes to limit the 
Attorney General's discretion to place limits on asylum. Rather, 
Moncrieffe addressed whether a conviction for possession of a small 
amount of marijuana with intent to distribute qualified as an 
aggravated felony. 569 U.S. at 206. Similarly, the Delgado court held 
that it had authority to review certain discretionary determinations 
made by the Attorney General when not explicitly identified in the INA. 
648 F.3d at 1100. However, this inquiry was based on statutory 
interpretation to determine whether the court had jurisdiction to 
review a BIA decision. Apart from disagreeing with the Department's 
legal arguments on appeal, neither of these two decisions purported, 
even in dicta, to place additional limitations on the Attorney 
General's ability to consider whether to grant asylum as a matter of 
discretion.
h. Issues With Representation
    Comment: Commenters opposed the NPRM because they alleged that it 
made the asylum system more arduous for asylum seekers, especially 
children, to navigate alone. One commenter claimed that 86 percent of 
detainees lack access to counsel. Overall, commenters were concerned 
that the rule's changes disadvantage asylum seekers by making it more 
difficult for them to proceed without representation and for 
organizations, in turn, to provide representation and assistance to 
aliens.
    Commenters pointed out that asylum seekers lack the benefit of 
appointed counsel, which is especially significant for pro se aliens 
affected by the rule, particularly in regard to gathering evidence and 
developing responses to refute the ``extremely broad grounds'' for the 
denial of asylum.
    Commenters also alleged that it will be more difficult for 
organizations to represent and assist aliens in accordance with the 
rule's provisions. Commenters stated that backlogs at USCIS are 
detrimental to organizations and the aliens they represent because

[[Page 67249]]

aliens may wait years for a decision on their applications, while 
organizations have limited resources to assist immigrants and must seek 
to prioritize spending for emergency situations.
    Commenters also stated that the system is already complicated; 
further complicating it with additional barriers will require much 
time, funding, and effort by immigration advocates. Finally, commenters 
stated that an asserted ``lack of predictability'' in application of 
the rule would ``create a substantial burden on immigration legal 
services providers, who [would] be unable to advise their clients as to 
their asylum eligibility, a long-term and stable form of protection 
from persecution.''
    Response: The commenters' particular concerns regarding 
representation in immigration proceedings or during asylum 
adjudications are outside the scope of this rulemaking. The rule does 
not involve securing or facilitating representation, and Congress has 
already directed that aliens have a right to counsel in removal 
proceedings but at no expense to the government. INA 292 (8 U.S.C. 
1362). Moreover, 87 percent of asylum applicants in pending asylum 
cases have representation, and there is nothing in the rule that would 
cause a reduction in that representation rate. See EOIR, Adjudication 
Statistics: Representation Rate (Apr. 15, 2020), https://www.justice.gov/eoir/page/file/1062991/download.
    In addition, the Departments continue to maintain resources 
designed to assist aliens in proceedings find representation or 
otherwise help themselves in their proceedings. See EOIR, Find Legal 
Representation, https://www.justice.gov/eoir/find-legal-representation 
(last updated Nov. 29, 2016). Further, the Office of Legal Access 
Programs within EOIR works to increase access to information and raise 
the level of representation for individuals in immigration proceedings. 
See EOIR, Office of Legal Access Programs, https://www.justice.gov/eoir/office-of-legal-access-programs (last updated Feb. 19, 2020).
    In regard to commenters' concerns regarding the backlog at USCIS, 
the rule facilitates a more streamlined approach by eliminating 
inefficiencies. See, e.g., 84 FR at 69647, 69656-57. For example, the 
rule's established definition for ``felony'' will create greater 
uniformity by accounting for ``possible variations in how different 
jurisdictions may label the same offense'' and avoid anomalies in the 
asylum context ``that arise from the definition of `aggravated 
felonies.''' Id. at 69647. Significantly, that definition eliminates 
the need for adjudicators and courts alike to engage in the categorical 
approach for aggravated felonies. See id. These improvements to the 
asylum system will increase predictability, therefore rendering 
representation less complicated and potentially requiring less funding 
by immigration advocates.
    The Departments emphasize that the rule does not create an entirely 
new system. As with any other change to the regulations, the 
Departments anticipate that immigration advocates and organizations 
will adjust and adapt their strategies to continue to provide effective 
representation for their selected clients.
i. Against American Ideals
    Comment: Commenters opposed the rule because they alleged that it 
conflicts with American ideals. Commenters remarked that the rule 
conflicts with the United States' tradition and moral obligation of 
providing a ``haven for persons fleeing oppression'' and a ``beacon of 
hope'' for vulnerable people, and that it violates principles that 
people should have freedom and equal rights under the law ``regardless 
of skin color or birthplace.'' Many commenters characterized these 
concerns as humanitarian, religious, and American ideals of showing 
compassion, fairness, and respect for human rights. Another commenter 
claimed that the rule ``eviscerated the spirit and overall purpose of 
the U.S. asylum system by categorically refusing protection to large 
groups of vulnerable people who are neither a danger to the public nor 
a threat to U.S. national security interests, and who have no other 
safe and reasonable option for protection.''
    Other commenters expressed opposition by claiming that the rule 
would diminish the United States' role as a world leader, hurt the 
country's international reputation, and undermine foreign policy 
interests abroad. One commenter stated that the rule would diminish the 
``country's historical role as a defender of human rights.''
    Response: The rule does not conflict with American traditions or 
moral obligations related to caring for vulnerable people. On the 
contrary, the rule streamlines the asylum system to improve the 
consistency and predictability of the adjudication of claims, thereby 
enabling applicants who qualify for asylum eligibility to swiftly 
access the benefits that follow a grant of asylum. Those benefits 
include, among many, preclusion from removal, a path to lawful 
permanent resident status and citizenship, work authorization, the 
possibility of derivative lawful status for certain family members, and 
access to certain financial assistance from the Federal government. See 
R-S-C, 869 F.3d at 1180; INA 208(c)(1)(A), (C) (8 U.S.C. 1158(c)(1)(A), 
(C)); INA 208(c)(1)(B), (d)(2) (8 U.S.C. 1158(c)(1)(B), (d)(2)); see 
also 84 FR at 69641. The availability of these benefits demonstrates 
American ideals of compassion realized through the asylum system.
    Aliens with certain criminal convictions demonstrate a disregard 
for the societal values of the United States and may constitute a 
danger to the community or threaten national security. The Departments 
have concluded that limiting asylum eligibility for these aliens 
furthers American ideals of the rule of law and a commitment to public 
safety. Although such aliens are not eligible for asylum under the 
rule, they may still be eligible for withholding of removal under the 
Act (INA 241(b)(3) (8 U.S.C. 1231(b)(3)); 8 CFR 1208.16(b)), or 
protection under the CAT regulations (8 CFR 1208.16(c)). These forms of 
protection limit removal to a country where the alien is more likely 
than not to be persecuted based on protected grounds or tortured, 
thereby affording protection to aliens, even if they are ineligible for 
asylum.
    The Departments do not agree that the rule diminishes the United 
States' international reputation for caring for the less fortunate. On 
the contrary, the Departments believe the rule strengthens the United 
States' ability to care for those who truly deserve the discretionary 
benefit of asylum and may take full advantage of the numerous benefits 
that follow.
j. Bad Motives
    Comment: Commenters opposed the NPRM because they alleged that the 
Departments published it with racist motives. Commenters stated that 
the rule was published ``out of animus to asylum seekers and [with] a 
desire to undermine the asylum system through an end-run around 
Congress'' because the rule would ``necessarily ensnare asylum seekers 
of color who have experienced racial profiling and a criminal legal 
system fraught with structural challenges and incentives to plead 
guilty to some crimes, particularly misdemeanors.'' One commenter 
specifically stated the rule was based upon a ``dark legacy'' of bias 
against Latin American countries and violated the Equal Protection 
Clause of the Fourteenth Amendment.
    One commenter stated that ``the [A]dministration has targeted low-
income, immigrant communities of color to further their white 
supremacist

[[Page 67250]]

agenda of maintaining a white majority in the United States.'' Other 
commenters alleged that DHS and ICE have relied on racist policing 
techniques to identify gang activity, which rarely result in criminal 
convictions.
    Commenters also opposed the rule because they alleged that it is an 
attempt to ``drastically limit asylum eligibility,'' ``exclude refugees 
from stability and security,'' and make the United States more 
``hostile'' towards immigrants. In other words, commenters alleged that 
the rule ``represent[ed] a thinly veiled attempt to prevent otherwise 
eligible asylum seekers from lawfully seeking refuge in the United 
States.'' Commenters referenced public documents allegedly revealing 
the Administration's efforts to utilize smuggling prosecutions against 
parents and caregivers as part of its overall strategy to deter 
families from seeking asylum. Commenters were concerned that the rule 
threatens to ``magnify the harm caused by these reckless policies by 
further compromising the ability of those seeking safety on the 
southern border to access the asylum system.''
    Response: The rule is not racially motivated, nor did racial animus 
or a ``legacy of bias'' play a role in the rule. Rather, the rule 
categorically precludes from asylum eligibility certain aliens based on 
the aliens' various criminal convictions and, in one limited instance, 
criminal conduct, because the Departments believe that the current 
case-by-case adjudicatory approach yields inconsistent results that are 
both ineffective to protect communities from danger and inefficient in 
regard to overall case processing. See 84 FR at 69640.
    To the extent that the rule disproportionately affects any group 
referenced by the commenters, the rule was not intentionally drafted to 
discriminate against any group. The provisions of the rule apply 
equally to all asylum applicants without regard to any applicant's 
ethnic or national background, or any other personal characteristics 
separate and apart from the criminal or conduct history laid out in the 
rule. Accordingly, the rule does not violate the Equal Protection 
Clause of the Fourteenth Amendment. See Washington v. Davis, 426 U.S. 
229, 242 (1976) (``[W]e have not held that a law, neutral on its face 
and serving ends otherwise within the power of government to pursue, is 
invalid under the Equal Protection Clause simply because it may affect 
a greater proportion of one race than of another. Disproportionate 
impact is not irrelevant, but it is not the sole touchstone of an 
invidious racial discrimination forbidden by the Constitution. Standing 
alone, it does not trigger the rule that racial classifications are to 
be subjected to the strictest scrutiny and are justifiable only by the 
weightiest of considerations.'' (citation omitted)); cf. United States 
v. Smith, 818 F.2d 687, 691 (9th Cir. 1987) (``We begin our review of 
this challenge by holding that persons convicted of crimes are not a 
suspect class.'').
    As explained in the proposed rule, Congress expressly authorized 
the Attorney General and the Secretary to establish conditions or 
limitations for the consideration of asylum applications under INA 
208(b)(2)(C), (d)(5)(B) (8 U.S.C. 1158(b)(2)(C), (d)(5)(B)) that are 
not inconsistent with the statute. See 84 FR at 69643. The Departments 
promulgate this final rule in accordance with those statutory sections, 
and in doing so, have promulgated a rule that is equally applicable to 
all races. The Departments strongly disavow any allegation of white 
supremacy.
    The Departments reiterate that the rule does not encourage or 
facilitate hostility towards immigrants. Instead, the rule 
categorically precludes from asylum eligibility certain aliens based on 
criminal convictions, and, in one limited instance, criminal conduct, 
because the Departments believe the current case-by-case adjudicatory 
approach yields inconsistent results that are both ineffective to 
protect the American public from danger and inefficient in regard to 
overall case processing. The rule retains the current general statutory 
asylum system, see 84 FR at 69640, with the result that applicants for 
asylum must prove that they are (1) statutorily eligible for asylum, 
and (2) merit a favorable exercise of discretion. INA 208(b)(1)(A), 
240(c)(4)(A) (8 U.S.C. 1158(b)(1)(A) 1229a(c)(4)(A)); see also Matter 
of A-B-, 27 I&N Dec. at 345 n.12. That framework continues to be 
equally applicable to persons of all races.
    The rule does not affect regulatory provisions regarding refugee 
processing under 8 CFR parts 207, 209, 1207, and 1209, and it does not 
categorically exclude refugees from the United States or facilitate 
hostility towards immigrants. The Departments disavow allegations that 
the government used smuggling prosecutions against parents and 
caregivers specifically to deter families from seeking asylum. Rather, 
the Departments anticipate that the rule will better facilitate 
efficient processing of asylum applications by introducing a more 
streamlined approach, thus helping families who qualify for asylum and 
demonstrate their applications merit a favorable decision.
k. Problems With the Criminal Justice System
    Comment: Commenters opposed the proposed rule because they alleged 
that it implicates a criminal justice system that suffers from 
structural challenges such as racial profiling, unjust outcomes, 
barriers to equal justice, and incentives to plead guilty, especially 
in the context of misdemeanors.
    Related to commenters' concerns regarding racism in the NPRM,\40\ 
commenters explained their concern that the NPRM imports racial 
disparities prevalent in the criminal justice system into the 
immigration system, stating, ``[a]sylum seekers of color, like all 
communities of color in the United States, are already 
disproportionately targeted and punished by the criminal justice 
system.'' Particularly, commenters stated that both undocumented and 
documented non-white immigrants are arrested, convicted of drug crimes, 
given longer sentences, and deported more frequently than their white 
counterparts. Further, commenters stated that LGBTQ aliens are more 
prone to experiencing violence from police.
---------------------------------------------------------------------------

    \40\ See section II.C.6.j for further discussion.
---------------------------------------------------------------------------

    One commenter opposed the NPRM, stating that it would exacerbate 
problems in our criminal justice system, such as increased 
incarceration, deportations, and racial profiling, which would, in 
turn, exacerbate health concerns for individuals and communities.
    Response: The final rule amends the Departments' respective 
regulations governing bars to asylum eligibility. The rule clarifies 
the effect of criminal convictions and, in one instance, criminal 
conduct, in the asylum context and removes regulations governing 
automatic reconsideration of discretionary denials of asylum 
applications. See 84 FR at 69640. Accordingly, commenters' concerns 
regarding structural challenges to the criminal justice system are 
outside the scope of this rulemaking. The rule does not seek or intend 
to address actual or alleged injustices of the criminal justice system 
as a whole, as referenced by the commenters, including racial 
profiling, disparities based on race and sexual orientation, unjust 
outcomes, barriers to equal justice, incentives to plead guilty, and 
health concerns following alleged increases in incarceration, 
deportations, and racial profiling.

[[Page 67251]]

l. Automatic Review of Discretionary Denials
    Comment: Many commenters expressed strong opposition to the rule 
because it eliminates automatic review of discretionary denials. 
Commenters were concerned that language barriers and lack of financial 
resources may prevent applicants with meritorious claims from 
adequately presenting their cases. According to commenters, 
``[m]aintaining reconsiderations of discretionary denials of asylum is 
therefore absolutely critical to ensuring that immigrant survivors who 
are eligible for asylum have another opportunity to defend and prove 
their right to obtain asylum protections.''
    Response: The Departments disagree that reconsideration of 
discretionary denials of asylum is necessary and find that commenters' 
concerns regarding removal of these provisions are unwarranted. First, 
the current regulations providing for automatic reconsideration of 
discretionary denials at 8 CFR 208.16(e) and 1208.16(e) are 
inefficient, unclear, and unnecessary. See 84 FR at 69656. Federal 
courts have expressed similar sentiment as they approach related 
litigation. See Shantu v. Lynch, 654 F. App'x 608, 613-14 (4th Cir. 
2016) (discussing unresolved anomalies of the regulations regarding 
reconsideration of discretionary denials); see also 84 FR at 69656-57.
    Further, there are currently multiple avenues through which an 
asylum applicant may challenge a discretionary denial, with the result 
that removing the regulations providing for reconsideration (8 CFR 
208.16(e) and 1208.16(e)) does not effectively render asylum 
eligibility determinations final. See 84 FR at 69657. First, under 8 
CFR 1003.23(b)(1), an immigration judge may reconsider a decision upon 
his or her own motion.\41\ Second, also under 8 CFR 1003.23(b)(1), an 
alien may file a motion to reconsider with the immigration judge. 
Third, under 8 CFR 1003.38, an alien may file an appeal with the BIA. 
The Departments have concluded that these alternatives sufficiently 
preserve the alien's ability to obtain review of the immigration 
judge's discretionary asylum decision, while removing the confusing, 
inefficient, and unnecessary automatic review provisions at 8 CFR 
208.16(e) and 1208.16(e).
---------------------------------------------------------------------------

    \41\ On August 26, 2020, the Department of Justice proposed 
restricting the ability of an immigration judge to reconsider a 
decision upon his or her own motion. Appellate Procedures and 
Decisional Finality in Immigration Proceedings; Administrative 
Closure, 85 FR 52491, 52504-06 (Aug. 26, 2020). That rule has not 
yet been finalized, but even if the proposal is adopted in the final 
rule, asylum applicants would still remain able to file a motion to 
reconsider or an appeal in order to challenge an immigration judge's 
discretionary denial in these circumstances.
---------------------------------------------------------------------------

7. Recommendations
    Comment: Commenters provided numerous recommendations to the 
Departments.
    First, several commenters suggested that the Departments provide 
annual bias training to all immigration judges and prosecutors.
    Next, two commenters recommended that the sentencing guidelines as 
provided in the Washington Adult Sentencing Guidelines Manual be 
incorporated into the NPRM to provide clarity and guidance to 
immigration judges.
    Another commenter asserted that international human rights law 
obligations required the Departments to

    (1) put in place and allocate resources to the identification 
and assessment of protection needs; and (2) establish mechanisms for 
entry and stay of migrants who are considered to have protection 
needs prohibiting their return under international human rights law, 
including non-refoulement, as well as the rights to health, family 
life, best interests of the child, and torture rehabilitation.

    A commenter suggested the Departments should incorporate recent 
innovative criminal justice reforms. For example, the commenter pointed 
to special drug trafficking courts that ``recognize the need for 
discretion in the determination of criminal culpability'' and suggested 
that the Departments should create specialized asylum eligibility 
courts.
    Another commenter emphasized the effects of climate change, 
claiming that the United States should be ``creating new categories of 
asylum given the predictions on climate change migrants and the latest 
UN human rights ruling declaring governments cannot deport people back 
to countries if their lives are in danger due to climate change.''
    One commenter recommended that the Departments continue to hire 
more immigration judges and asylum officers and to retain discretion 
with immigration adjudicators to make determinations on a case-by-case 
basis rather than expand the categorical bars.
    Some commenters emphasized the general need for comprehensive, 
compassionate immigration reform. One commenter specifically urged the 
Departments to support the New Way Forward Act, which, according to the 
commenter, ``rolls back harmful immigration laws [because] it proposes 
immigration reform measures that dismantle abuses of our system and our 
asylum seeking community.''
    Some commenters urged the Departments to take a more ``welcoming'' 
approach, citing the positive effects of diversity and economic 
advantages.
    Another commenter, despite opposing the NPRM, provided several 
recommendations regarding the domestic violence crime bar and primary 
perpetrator exception should the Departments publish the rule as final. 
First, the commenter recommended that all immigration adjudicators 
should receive specialized training developed with input from 
stakeholders regarding domestic violence and the unique vulnerabilities 
faced by immigrants. Second, the commenter recommended that an 
automatic supervisory review should follow any determination that an 
applicant does not meet an exception to an asylum bar. Third, the 
commenter recommended that adjudicators should be required to provide 
written explanations of (1) the factual findings, weighed against the 
evidence, if a determination is made that an applicant does not meet an 
exception to the asylum bar and (2) their initial decisions to apply 
the bar, including what ```serious reasons' existed for believing that 
the applicant engaged in acts of domestic violence or extreme 
cruelty.'' Fourth, when applicants do not meet the exception, the 
commenter recommended that adjudicators identify what evidence, if any, 
was provided by the alleged primary perpetrator, how it was weighed, 
and what the adjudicator did to determine whether it was false or 
fabricated. Fifth, the commenter requested that agencies regularly 
engage with stakeholders to assess the impact of the bar and the 
exception on survivors.
    Several commenters urged the Departments to dedicate their efforts 
to ensuring that individuals fleeing violence would be granted full 
asylum protections. One commenter suggested that the bars to asylum be 
narrowed by eliminating the bar related to convictions in other 
countries.
    Some commenters suggested that families, especially children, be 
allowed to apply for asylum together, rather than require each person 
to file a separate application.
    Response: The Departments note the commenters' recommendations.
    Some commenters' suggestions involved issues or topics outside the 
scope of the rule, such as the suggestions that immigration judges 
should be provided certain types of training or to allow for additional 
flexibilities for family-based versus individual asylum applications. 
The

[[Page 67252]]

Departments may consider these recommendations in the event of 
additional rulemakings, but do not take any further action in response 
to these out-of-scope suggestions at this point.
    Other commenters' suggestions involved topics outside the authority 
of the Departments, such as suggestions that there should be new 
asylum-related protections due to concerns surrounding climate change 
or that legislative changes to the immigration laws should be enacted. 
If Congress enacts these or other changes to the immigration laws, the 
Departments' regulations will reflect such changes in future rules. 
However, this rule is designed to implement the immigration laws 
currently in force.
    Regarding the remaining suggestions related to the provisions of 
this rule, the Departments decline to adopt the recommendations or make 
changes to the proposed rule except as set out below in section III. 
Overall, the Departments find that the commenters' recommendations 
would frustrate the rule's purpose by slowing and prolonging the 
adjudicatory process, thereby undermining the goal of more efficiently 
processing asylum claims. Further, the Departments have determined, as 
discussed above, that the included offenses are significant offenses 
that warrant rendering aliens described by the rule ineligible for 
asylum.
    For example, the Departments decline to adopt one commenter's 
requests to automatically require supervisory review of an asylum 
officer's decision to apply a bar, or to require the asylum officer or 
immigration judge to issue a written decision explaining the 
application of the bars. The Departments believe that the existing 
processes for issuing decisions and providing review of asylum 
determinations give sufficient protections to applicants. See, e.g., 8 
CFR 208.14(c)(1) (explaining that, for a removable alien, when an 
asylum officer cannot grant an asylum application, the officer shall 
refer the application for adjudication in removal proceedings by an 
immigration judge); 8 CFR 1003.3(a)(1) (providing for appeals of 
immigration judge decisions to the BIA); 8 CFR 1003.37(a) (explaining 
that a ``decision of the Immigration Judge may be rendered orally or in 
writing,'' and that, if the decision is oral, it shall be ``stated by 
the Immigration Judge in the presence of the parties'' and a memorandum 
``summarizing the oral decision shall be served on the parties''). 
Requiring additional steps beyond these long-standing processes would 
only create inefficiencies that this rule seeks to avoid. For example, 
this rule removes the automatic review of a discretionary denial of 
asylum specifically because ``mandating that the decision maker 
reevaluate the very issue just decided is an inefficient practice that 
* * * grants insufficient deference to the original fact finding and 
exercise of discretion.'' 84 FR at 69657.
    The Departments also decline to incorporate a commenter's 
suggestion to include the Washington Adult Sentencing Guidelines Manual 
into the rule, as the Departments believe the rule provides sufficient 
guidance to adjudicators without adding a specific state's criminal law 
manual, which would only add confusion to the immigration adjudication 
process.

D. Comments Regarding Regulatory Requirements

1. Administrative Procedure Act
    Comment: Commenters raised concerns that this rule violated the 
APA's requirements, as set forth in 5 U.S.C. 553(b) through (d). First, 
commenters stated that the 30-day comment period was not sufficient for 
such a significant rule and that, at a minimum, the comment period 
should have been 60 days. Commenters cited the complexity of the legal 
and policy issues raised by the rule, the impact of the rule on asylum-
seekers, and the potential implications of the rule regarding the 
United States' compliance with international and domestic asylum law. 
In support, commenters referenced Executive Orders 12866 and 13563, 
both of which recommend a ``meaningful opportunity to comment'' with a 
comment period of not less than 60 days ``in most cases.'' They also 
noted that the comment period for this rule ran through the winter 
holiday season, with multiple Federal holidays.
    Commenters also stated that the rule was arbitrary and capricious 
under the APA because the Departments did not provide sufficient 
evidence to support such significant changes. For example, commenters 
noted the lack of statistics regarding the number of asylum seekers 
that would be affected by the rule and expressed concerned that the 
Departments were relying on conclusory statements in support of the 
rule.
    Commenters further stated that the reasons given for the rule were 
insufficient and, therefore, arbitrary and capricious. For example, 
commenters took issue with the Departments' explanation that the 
additional categories of criminal bars were necessary to address the 
``inefficient'' and ``unpredictable'' case-by-case adjudication 
process. Instead, commenters stated that the case-by-case process 
ensured that the adjudicator takes into account all of the relevant 
factors in making a determination.
    Commenters had specific concerns with the rule's provision that all 
felony convictions constitute a particularly serious crime. Commenters 
stated that the rule provided no evidence to support the provision, and 
that a criminal record in and of itself does not reliably predict 
future dangerousness. Further, the provision does not address persons 
who accept plea deals to avoid lengthy potential sentences; who have 
rehabilitated since the conviction; or who have committed a crime that 
does not involve a danger to the community or circumstances when a 
Federal, State, or local judge has concluded that no danger exists by, 
for example, imposing a noncustodial sentence.
    Commenters stated that the rule was arbitrary and capricious 
because it is inconsistent with the statute, see INA 208(b)(2)(A)(ii) 
(8 U.S.C. 1158(b)(2)(A)(ii)), which requires a separate showing from 
the particularly serious crime determination that the alien constitutes 
a danger to the community.
    Commenters also raised concerns with the ``reason to believe'' 
standard for gang-related crime determinations. The commenters asserted 
that the standard relied on ineffective, inaccurate, and discriminatory 
practices and was therefore arbitrary and capricious.
    Response: The Departments believe the 30-day comment period was 
sufficient to allow for a meaningful public input, as evidenced by the 
significant number of public comments received, including almost 80 
detailed comments from interested organizations. The APA does not 
require a specific comment period length. See 5 U.S.C. 553(b)-(c). 
Similarly, although Executive Orders 12866 and 13563 recommend a 
comment period of at least 60 days, such a period is not required. 
Federal courts have presumed 30 days to be a reasonable comment period 
length. For example, the D.C. Circuit recently stated that, ``[w]hen 
substantial rule changes are proposed, a 30-day comment period is 
generally the shortest time period sufficient for interested persons to 
meaningfully review a proposed rule and provide informed comment.'' 
Nat'l Lifeline Ass'n v. Fed. Commc'ns Comm'n, 921 F.3d 1102, 1117 (D.C. 
Cir. 2019) (citing Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir. 
1984)). Litigation has mainly focused on the reasonableness of comment 
periods shorter than 30 days, often in the face of exigent 
circumstances, and the Departments are unaware of any case

[[Page 67253]]

law holding that a 30-day comment period was insufficient. See, e.g., 
N. Carolina Growers' Ass'n, Inc. v. United Farm Workers, 702 F.3d 755, 
770 (4th Cir. 2012) (analyzing the sufficiency of a 10-day comment 
period); Omnipoint Corp. v. FCC, 78 F.3d 620, 629-30 (D.C. Cir. 1996) 
(15-day comment period); Northwest Airlines, Inc. v. Goldschmidt, 645 
F.2d 1309, 1321 (8th Cir. 1981) (7-day comment period).
    The Departments also believe that the 30-day comment period was 
preferable to a longer comment period since this rule involves public 
safety concerns. Cf. Haw. Helicopter Operators Ass'n v. FAA, 51 F.3d 
212, 214 (9th Cir. 1995) (noting that the Federal Aviation 
Administration had good cause to not engage in notice-and-comment 
rulemaking because the rule was needed to protect public safety as 
demonstrated by numerous then-recent helicopter crashes). By proceeding 
with a 30-day comment period rather than a 60-day period, the 
Departments are able to more quickly finalize and implement this rule, 
which prevents persons with certain criminal histories, such as 
domestic violence or gang-related crimes, from receiving asylum and 
potentially residing or prolonging their presence in the United States 
on that basis during the pendency of the asylum process.
    Regarding commenters' APA concerns about the statistical analysis 
in this rule, the Departments reiterate that they are unable to provide 
precise data on the number of persons affected by the rule because the 
Departments do not maintain data on the number of asylum applicants 
with criminal convictions or, more specifically, with criminal 
convictions and pertinent criminal conduct, that would be subject to 
the bars added by this rule. An attempt to quantify the population 
affected would risk providing the public with inaccurate data that at 
best would be unhelpful. As a general matter, the rule will likely 
result in fewer asylum grants annually, but the Departments do not 
believe that further analysis--in the absence of any reliable data--is 
warranted. See Stilwell v. Office of Thrift Supervision, 569 F.3d 514, 
519 (D.C. Cir. 2009) (``The APA imposes no general obligation on 
agencies to produce empirical evidence. Rather, an agency has to 
justify its rule with a reasoned explanation.''); see also id. 
(upholding an agency's decision to rely on its ``long experience'' and 
``considered judgment,'' rather than statistical analyses, in 
promulgating a rule).
    Likewise, the Departments disagree with commenters that the NPRM 
did not sufficiently explain the reasons for adding additional per se 
criminal bars. As explained in the NPRM, immigration judges and the BIA 
have had difficulty applying the ``particularly serious crime'' bar 
and, therefore, the Departments believe additional standalone criminal 
bars will provide a clear and efficient process for adjudicating asylum 
applications involving criminal convictions. See 84 FR at 69646. The 
Attorney General and the Secretary have not issued regulations 
identifying additional categories of convictions that qualify as 
particularly serious crimes, which has in turn resulted in adjudicators 
and the courts analyzing on a case-by-case basis whether individual 
criminal statutes qualify as particularly serious crimes. However, this 
statute-by-statute determination has not provided adjudicators with 
sufficient guidance in making ``particularly serious crime'' 
determinations due to the individualized nature of the BIA's 
determinations. See id. By adding these standalone criminal bars, the 
rule helps ensure that immigration adjudicators will be able to apply 
clear standards outside of applying the particularly serious crime bar. 
In regards to commenters' concerns about the blanket felony conviction 
bar, the Departments chose to include a bar for all felony convictions 
because it provides a clear standard to apply in adjudicating the 
effect to be given to criminal offenses as part of asylum 
determinations.
    Adjudicators will be able to efficiently determine the effect of 
criminal convictions without resort to complex legal determinations as 
to the immigration effects of a specific criminal statute. The 
Departments are aware that the particular personal circumstances and 
facts of each case are unique; however, the Departments believe that 
the clarity and consistency of a per se rule outweigh any benefits of a 
case-by-case approach.
    Further, adding a bar to asylum eligibility for all felony 
convictions recognizes the significance of felony convictions. For 
example, Congress recognized the relationship between felonies and the 
seriousness of criminal offenses when it explicitly defined 
``aggravated felony'' to include numerous offenses requiring a term of 
imprisonment of at least one year. See INA 101(a)(43)(F), (G), (J), 
(P), (R), (S) (8 U.S.C. 1101(a)(43)(F), (G), (J), (P), (R), (S)). 
Similarly, Congress focused on the importance of felonies in the Armed 
Career Criminal Act, a sentencing enhancement statute for persons who 
have been convicted of three violent felonies, which requires the 
predicate offenses to be punishable by imprisonment for terms exceeding 
one year. See 18 U.S.C. 924(e)(2)(B).
    The Departments also disagree that the use of the ``reason to 
believe'' standard for gang-related crime determinations is arbitrary 
and capricious. The ``reason to believe'' standard is used in multiple 
subsections of section 212 of the Act (8 U.S.C. 1182) in making 
inadmissibility determinations, and the Federal circuit courts have had 
no issues reviewing immigration judges' ``reason to believe'' 
inadmissibility determinations. See, e.g., Chavez-Reyes v. Holder, 741 
F.3d 1, 3-4 (9th Cir. 2014) (reviewing ``reason to believe'' 
determination for substantial evidence); Lopez-Molina, 368 F.3d at 1211 
(same). There is no reason that the Departments cannot apply this same 
standard when determining whether a criminal conviction involves gang 
activity.
    In addition, the Departments disagree with commenters that the use 
of the ``reason to believe'' standard would enable adjudicators to rely 
on inaccurate, ineffective, or discriminatory evidence when making 
determinations regarding gang-related crimes. As discussed above, 
immigration judges are already charged with considering material and 
relevant evidence. 8 CFR 1240.1(c). To make this determination, 
immigration judges consider whether evidence is ``probative and whether 
its use is fundamentally fair so as not to deprive the alien of due 
process of law.'' Ezeagwuna, 325 F.3d at 405 (quoting Bustos-Torres, 
898 F.2d at 1055). Nothing in the rule undermines or withdraws from 
this standard. If an alien believes that an adjudicator has relied on 
inaccurate, ineffective, or discriminatory evidence in making this 
determination, such decision would be subject to further review.
    Finally, the Departments clarify that this rule creates additional 
standalone criminal bars to asylum and does not alter the definitions 
of the ``particularly serious crime'' bar. As a result, this rule does 
not create any inconsistencies with the ``particularly serious crime'' 
bar statutory language regarding dangerousness, which, the Departments 
note, does not require a separate finding of dangerousness. See INA 
208(b)(2)(A)(ii) (8 U.S.C. 1158(b)(2)(A)(ii)); see also, e.g., Matter 
of R-A-M-, 25 I&N Dec. 657, 662 (BIA 2012) (explaining that, for 
purposes of the ``particularly serious crime'' bar, ``it is not 
necessary to make a separate determination whether the alien is a 
danger to the community'').

[[Page 67254]]

2. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 13563 (Improving Regulation and Regulatory Review), and Executive 
Order 13771 (Reducing Regulation and Controlling Regulatory Costs)
    Comment: Commenters raised concerns that the Departments' cost-
benefit analysis presented no evidence that potential benefits from the 
rule exceed the potential costs. For example, commenters explained that 
the Departments' primary stated reason for adopting new categorical 
bars was that the exercise of discretion has created inefficiency and 
inconsistency. However, commenters stated that the Departments' cost-
benefit estimates failed to account for new assessments regarding 
numerous questions of law and fact that the rule would require. 
Accordingly, commenters argued that the Departments' cost-benefit 
analysis was unreliable.
    Further, commenters stated that the agencies did not comply with 
Executive Orders 12866, 13563, and 13771, which require agencies to 
quantify potential costs to the fullest extent possible. Commenters 
explained that the Departments noted that the rule would likely result 
in fewer asylum grants annually but failed to quantify or evaluate the 
impact of the decrease and did not provide any evidence or indication 
that an attempt was made at quantifying this impact. Commenters 
explained that the Departments are required to use the best methods 
available to estimate regulatory costs and benefits, even if those 
estimates cannot be precise. Commenters also noted that the Departments 
did not attempt to provide a high and low estimate for the rule's 
potential impacts despite such an estimation being common practice in 
rulemaking.
    Commenters noted that public comments on this rule and other recent 
asylum-related rulemakings provided the Departments with data regarding 
the impacts of asylum denials. Commenters gave examples of potential 
costs that the Departments failed to consider, including, for example, 
costs from the differences in benefits for individuals who may obtain 
only lesser protection in the form of statutory withholding of removal 
or protection under the CAT regulations; costs from the detention and 
deportation of individuals who would otherwise have meritorious asylum 
claims; economic and non-economic costs to asylum-seekers' families; 
costs to businesses that currently employ or are patronized by asylum-
seekers; costs from the torture and killings of deported asylum-
seekers; and intangible costs from the diminution of respect for U.S. 
treaty obligations and diminution of respect for human life and the 
safety of asylum-seekers, among others. As a result, commenters stated 
that the Departments did not support their conclusion that ``the 
expected costs of this proposed rule are likely to be de minimis.''
    Response: The Departments disagree that the rule will create 
additional adjudicatory burdens that will outweigh the rule's benefits. 
The purpose of the rule is to limit asylum eligibility for persons with 
certain criminal convictions, which in turn will lessen the burdens on 
the overtaxed asylum system. There are currently more than one million 
pending cases at the immigration courts, with significant year over 
year increases, despite a near doubling of the number of immigration 
judges over the past decade and the completion of historic numbers of 
cases. See EOIR, Adjudication Statistics: Pending Cases (July 14, 
2020), https://www.justice.gov/eoir/page/file/1242166/download; EOIR, 
Adjudication Statistics: Immigration Judge (IJ) Hiring (June 2020), 
https://www.justice.gov/eoir/page/file/1242156/download; EOIR, 
Adjudication Statistics: New Cases and Total Completions (July 14, 
2020), https://www.justice.gov/eoir/page/file/1060841/download). Of 
these pending cases, over 575,000 include an asylum application.
    These new bars will help achieve the goal of alleviating the burden 
on the immigration system while retaining the existing framework for 
asylum adjudications. As stated in the NPRM, this rule does not change 
the role of an immigration judge or asylum officer in adjudicating 
asylum applications; immigration judges and asylum officers currently 
consider an applicant's criminal history to determine the associated 
immigration consequences, if any, and whether the applicant warrants 
asylum as a matter of discretion. See 84 FR at 69657-58. These 
additional bars will be considered under that existing framework and, 
therefore, the Departments do not anticipate additional costs to the 
adjudication process.
    In addition, the Departments believe the rule complies with the 
cost-benefit analysis required by Executive Orders 12866, 13563, and 
13771. Executive Order 12866 requires the Departments to quantify costs 
``to the fullest extent that these can be usefully estimated.'' See 
E.O. 12866, 58 FR 51735, 51735, sec. 1(a) (Sept. 30, 1993). As 
explained in the NPRM, the Departments do not maintain data on the 
number of asylum applicants with criminal convictions or, more 
specifically, with criminal convictions and pertinent criminal conduct, 
that would be subject to the bars added by this rule. Without this 
data, the Departments cannot reliably estimate the population effected 
by this rule, outside of identifying the group likely affected by the 
rule: Asylum applicants with criminal convictions and pertinent 
criminal conduct, barred under this rule, and asylum applicants denied 
asylum solely as a matter of discretion that will no longer receive 
automatic review of such decisions.
    Based on this identified population, commenters provided a number 
of potential ancillary costs to the likely increase in asylum denials 
under these additional bars, which the Departments have reviewed. As 
explained in the NPRM, a main effect of the likely increase in asylum 
denials is a potential increase in grants of statutory withholding of 
removal or protection under the CAT regulations. 84 FR at 69658. These 
forms of protection do not provide the same benefits as asylum, 
including the ability to gain permanent status in the United States, 
obtain derivative status for family members, or travel outside the 
country. Such non-monetary costs are difficult to quantify, but the 
Departments believe that the similarly difficult-to-quantify benefits 
associated with the rule--such as a reduction in the risks associated 
with dangerous aliens and an increase in adjudicative efficiency--
outweigh these costs.
    Commenters also cited other potential costs, such as the effects 
that the bars could have on businesses employing or patronized by 
asylum applicants. However, such projections were general, tenuous, and 
unsupported by data, and the Departments are unaware of any reliable 
data parsing business income attributable to individuals affected by 
this rule--i.e., asylum applicants who have been convicted of or 
engaged in certain types of criminal behavior--as opposed to non-
criminal asylum applicants, asylees, refugees, aliens granted statutory 
withholding of removal or protection under the CAT, or other groups of 
aliens in general. Moreover, because aliens may still obtain work 
authorization if granted withholding of removal or protection under the 
CAT, 8 CFR 274a.12(a)(10), this rule would not necessarily foreclose 
employment or patronage opportunities for aliens subject to its 
parameters. Finally, even if there were identifiable economic costs for 
these aliens, the Departments believe that the benefits associated with 
limiting asylum eligibility based on certain criminal conduct would 
outweigh them because

[[Page 67255]]

of (1) the rule's likely impact in improving adjudicatory efficiency, 
and (2) the intangible benefits associated with promotion of the rule 
of law. See E.O. 12866, 58 FR at 51734 (directing agencies to account 
for ``qualitative'' benefits that are ``difficult to quantify,'' but 
which are ``essential to consider''). The Departments further disagree 
with commenters' assertions that these bars will have a negative 
intangible cost on the United States' interests or international 
standing, as Congress expressly conferred on the Attorney General and 
the Secretary the authority to provide these additional asylum 
limitations, which--as explained in the NPRM--are consistent with U.S. 
treaty obligations. See INA 208(b)(2)(C) (8 U.S.C. 1158(b)(2)(C)); 84 
FR at 69644.

III. Provisions of the Final Rule

    The Departments have considered and responded to the comments 
received in response to the NPRM. In accordance with the authorities 
discussed above in section I.A, the Departments are now issuing this 
final rule to finalize the NPRM. The final rule adopts the provisions 
of the NPRM as final, with the following minor edits for clarity, for 
the reasons discussed above in section II in response to the comments 
received.\42\
---------------------------------------------------------------------------

    \42\ In addition, the final rule makes clarifying grammatical 
edits to the punctuation of the proposed rule, such as by replacing 
semicolons with periods where relevant.
---------------------------------------------------------------------------

A. 8 CFR 208.13(c)(6)(ii)

    As drafted in the NPRM, 8 CFR 208.13(c)(6)(ii) would have included 
a reference to ``the Secretary:'' ``The alien has been convicted [of a 
crime] that the Secretary knows or has reason to believe * * * .'' For 
internal consistency within 8 CFR 208.13(c)(6)(ii) and for specificity, 
the Departments are replacing this reference to ``the Secretary'' with 
``the asylum officer,'' the officials in DHS who adjudicate asylum 
applications.

B. 8 CFR 1208.13(c)(6)(ii)

    Regulations in chapter V of 8 CFR govern proceedings before EOIR 
and not before DHS. The Departments, however, mistakenly listed both 
the Attorney General and the Secretary in 8 CFR 1208.13(c)(6)(ii) as 
drafted in the NPRM: ``The alien has been convicted [of a crime] that 
the Attorney General or Secretary knows or has reason to believe * * * 
.'' This final rule removes the reference to the Secretary so that 8 
CFR 208.13(c)(6)(ii), governing DHS, references the Secretary, and 8 
CFR 1208.13(c)(6)(ii) references only officials within DOJ. It further 
changes ``Attorney General'' to ``immigration judge'' for internal 
consistency within the rest of 8 CFR 1208.13.

C. 8 CFR 1208.13(c)(6)(v)(B)

    This rule amends the cross-reference in 8 CFR 1208.13(c)(6)(v)(B) 
so that it reads ``under paragraph (c)(6)(v)(A)'' instead of ``under 
paragraph (c)(6)(v)'' as published in the NPRM. This change provides 
clarity and matches the same cross-reference in 8 CFR 
208.13(c)(6)(v)(B)-(C) and 8 CFR 1208.13(c)(6)(v)(C).
    In addition, this rule changes ``adjudicator'' to ``immigration 
judge'' for specificity and clarity. This matches the specific 
reference to ``asylum officer,'' who is the relevant adjudicating 
entity for DHS, in 8 CFR 208.13(c)(6)(v)(B).

D. 8 CFR 1208.13(c)(7)(v)

    As with the change discussed above to 8 CFR 1208.13(c)(6)(v)(B), 
this rule corrects the reference to the ``asylum officer'' to read 
``immigration judge'' in 8 CFR 1208.13(c)(7)(v). The immigration judge 
is the relevant adjudicator for DOJ's regulations.

E. 8 CFR 1208.13(c)(9)

    As with the change discussed above regarding 8 CFR 
1208.13(c)(6)(v)(B), this rule removes ``or other adjudicator'' from 
the proposed text for 8 CFR 1208.13(c)(9). This change provides clarity 
because the immigration judge is the relevant adjudicator for DOJ's 
regulations and matches the specific reference to only an ``asylum 
officer'' in 8 CFR 208.13(c)(9).

F. 8 CFR 208.13(c)(6)(vii) and 8 CFR 1208.13(c)(6)(vii)

    This rule amends the same language in both 8 CFR 208.13(c)(6)(vii) 
and 8 CFR 1208.13(c)(6)(vii) so that the provisions instruct that an 
alien will be barred from asylum if the immigration judge or asylum 
officer ``knows or has reason to believe'' that the alien has engaged 
on or after the effective date in certain acts of battery or extreme 
cruelty. Previously, these provisions provided ``[t]here are serious 
reasons for believing'' the alien has engaged in such conduct. In other 
words, the Departments have replaced the ``serious reasons for 
believing'' standard in proposed 8 CFR 208.13(c)(6)(vii) and proposed 
1208.13(c)(6)(vii) with a ``knows or has reason to believe'' standard.
    This change is intended to prevent confusion and ensure the rule's 
consistency, both within the new provisions it adds to 8 CFR and with 
the INA more generally. As discussed above, the ``reason to believe'' 
standard is used in multiple subsections of section 212 of the Act (8 
U.S.C. 1182) in making inadmissibility determinations. See, e.g., INA 
212(a)(2)(C)(i) (8 U.S.C. 1182(a)(2)(C)(i)) (providing that an alien 
who ``the consular officer or the Attorney General knows or has reason 
to believe'' is an illicit trafficker of controlled substances is 
inadmissible). The Federal circuit courts have had no issues reviewing 
immigration judges' ``reason to believe'' inadmissibility 
determinations. See, e.g., Chavez-Reyes, 741 F.3d at 3-4 (reviewing 
``reason to believe'' determination for substantial evidence); Lopez-
Molina, 368 F.3d at 1211 (same). Further, without this change, the rule 
may have created additional unintended questions regarding what sort of 
reasons to believe are sufficient to qualify as ``serious'' reasons. 
Although the Departments are modifying the language in the final rule 
to reduce the likelihood of confusion, they reiterate that the language 
in 8 CFR 208.13(c)(6)(vii) and 8 CFR 1208.13(c)(6)(vii) is intended to 
be analogous to similar provisions in 8 CFR 204.2.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

    The Departments have reviewed this proposed rule in accordance with 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and have 
determined that this rule will not have a significant economic impact 
on a substantial number of small entities. The rule would not regulate 
``small entities'' as that term is defined in 5 U.S.C. 601(6). Only 
individuals, rather than entities, are eligible to apply for asylum, 
and only individuals are eligible to apply for asylum or are otherwise 
placed in immigration proceedings.

B. Administrative Procedure Act

    This final rule is being published with a 30-day effective date as 
required by the Administrative Procedure Act. 5 U.S.C. 553(d).

C. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995. See 2 U.S.C. 1532(a).

[[Page 67256]]

D. Congressional Review Act

    The Office of Information and Regulatory Affairs has determined 
that this rule is not a major rule as defined by section 804 of the 
Congressional Review Act. 5 U.S.C. 804(2). This rule will not result in 
an annual effect on the economy of $100 million or more; a major 
increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

E. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 13563 (Improving Regulation and Regulatory Review), and Executive 
Order 13771 (Reducing Regulation and Controlling Regulatory Costs)

    The Office of Information and Regulatory Affairs, Office of 
Management and Budget (``OMB''), has designated this rule a 
``significant regulatory action'' under section 3(f)(4) of Executive 
Order 12866, but not an economically significant regulatory action. 
Accordingly, the rule has been submitted to OMB for review. The 
Departments certify that this rule has been drafted in accordance with 
the principles of Executive Order 12866, section 1(b); Executive Order 
13563; and Executive Order 13771.
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of using the best 
available methods to quantify costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. Similarly, Executive 
Order 13771 requires agencies to manage both the public and private 
costs of regulatory actions.
    Because this final rule does not make substantive changes from the 
NPRM that would impact the rule's expected costs and benefits, the 
Departments have performed the same analysis as set out in the NPRM. 84 
FR at 69657-59.
    This rule provides seven additional mandatory bars to eligibility 
for asylum pursuant to the Attorney General's and the Secretary's 
authorities under sections 208(b)(2)(C) and 208(d)(5) of the INA (8 
U.S.C. 1182(b)(2)(C) and 1182(d)(5)).\43\ This rule adds bars on 
eligibility for aliens who commit certain offenses in the United States 
after entering the country. Those bars would apply to aliens who are 
convicted of, or engage in criminal conduct, as appropriate, with 
respect to: (1) A felony under Federal, State, tribal, or local law; 
(2) an offense under section 274(a)(1)(A) or (a)(2) of the Act (8 
U.S.C. 1324(a)(1)(A) or 1324(a)(2)) (Alien Smuggling or Harboring); (3) 
an offense under section 276 of the Act (8 U.S.C. 1326) (Illegal 
Reentry); (4) a Federal, State, tribal, or local crime involving 
criminal street gang activity; (5) certain Federal, State, tribal, or 
local offenses concerning the operation of a motor vehicle while under 
the influence of an intoxicant; (6) a Federal, State, tribal, or local 
domestic violence offense; and (7) certain misdemeanors under Federal, 
State, tribal, or local law for offenses related to false 
identification; the unlawful receipt of public benefits from a Federal, 
State, tribal, or local entity; or the possession or trafficking of a 
controlled substance or controlled-substance paraphernalia.
---------------------------------------------------------------------------

    \43\ As discussed further below, this rule will not otherwise 
impact the ability of an alien who is denied asylum to receive the 
protection of withholding of removal under the Act or withholding of 
removal or deferral of removal under the CAT.
---------------------------------------------------------------------------

    The seven bars are in addition to the existing mandatory bars 
relating to the persecution of others, convictions for particularly 
serious crimes, commission of serious nonpolitical crimes, security 
threats, terrorist activity, and firm resettlement in another country 
that are currently contained in the INA and its implementing 
regulations. See INA 208(b)(2) (8 U.S.C. 1158(b)(2)); 8 CFR 208.13, 
1208.13. Under the current statutory and regulatory framework, asylum 
officers and immigration judges consider the applicability of mandatory 
bars to the relief of asylum in every proceeding involving an alien who 
has submitted a Form I-589 application for asylum. Although this rule 
expands the mandatory bars to asylum, it does not change the nature or 
scope of the role of an immigration judge or an asylum officer during 
proceedings for consideration of asylum applications. Immigration 
judges and asylum officers are already trained to consider both an 
alien's previous conduct and criminal record to determine whether any 
immigration consequences result, and this rule does not propose any 
adjudications that are more challenging than those that are already 
conducted. For example, immigration judges already consider the 
documentation of an alien's criminal record that is filed by the alien, 
the alien's representative, or the DHS representative in order to 
determine whether one of the mandatory bars applies and whether the 
alien warrants asylum as a matter of discretion. Because the new bars 
all relate to an alien's criminal convictions or other criminal 
conduct, adjudicators will conduct the same analysis to determine the 
applicability of the bars proposed by the rule.\44\ The Departments do 
not expect the additional mandatory bars to increase the adjudication 
time for immigration court proceedings involving asylum applications.
---------------------------------------------------------------------------

    \44\ The Departments note that one of the new bars, regarding 
whether the alien has ``engaged'' in certain acts of battery or 
extreme cruelty, does not necessarily require a criminal conviction 
or criminal conduct. The Departments believe that a criminal arrest 
or conviction is the most likely evidence to be filed with the 
immigration court related to this bar, but even in cases where no 
such evidence is available, the analysis by immigration judges 
related to this bar is not an expansion from the current analysis 
immigration judges employ in determining whether conduct rises to 
level of ``extreme cruelty'' under 8 CFR 204.2(c)(1)(vi) in other 
contexts during removal proceedings. See, e.g., Bedoya-Melendez v. 
U.S. Atty. Gen., 680 F.3d 1321, 1326-28 (11th Cir. 2012) 
(demonstrating that, although there is a circuit split as to whether 
the ``extreme cruelty'' analysis is discretionary, all circuits look 
to conduct and not convictions in conducting the ``extreme cruelty'' 
analysis); Stepanovic v. Filip, 554 F.3d 673, 680 (7th Cir. 2009) 
(explaining that, in analyzing whether conduct rises to the level of 
``extreme cruelty,'' the immigration judge ``must determine the 
facts of a particular case, make a judgment call as to whether those 
facts constitute cruelty, and, if so, whether the cruelty rises to 
such a level that it can rightly be described as extreme''). In 
addition, adjudicators have experience reviewing questions of an 
alien's conduct in other contexts during the course of removal 
proceedings. See INA 212(a)(2)(C) (8 U.S.C. 1182(a)(2)(C)) 
(providing that an alien is inadmissible if ``the Attorney General 
knows or has reason to believe'' that the alien is an illicit 
trafficker of a controlled substance, regardless of whether the 
alien has a controlled substance-related conviction).
---------------------------------------------------------------------------

    The expansion of the mandatory bars for asylum would likely result 
in fewer asylum grants annually; \45\ however, because asylum 
applications are inherently fact-specific, and because there may be 
multiple bases for denying an asylum application, neither DOJ nor DHS 
can quantify precisely the expected decrease. An alien who would be 
barred from asylum as a result of the rule may still be eligible to 
apply for the protection of withholding of removal under section 
241(b)(3) of the INA (8 U.S.C. 1231(b)(3)) or withholding of removal or 
deferral of removal under regulations implementing U.S. obligations 
under Article 3 of the CAT. See INA 241(b)(3) (8 U.S.C. 1231(b)(3));

[[Page 67257]]

8 CFR 208.16 through 208.18; 1208.16 through 1208.18. For those aliens 
barred from asylum under this rule who would otherwise be positively 
adjudicated for asylum, it is possible they would qualify for 
withholding (provided a bar to withholding did not apply separate and 
apart from this rule) or deferral of removal.\46\ To the extent this 
rule has any impacts, they would almost exclusively fall on that 
population.\47\
---------------------------------------------------------------------------

    \45\ In Fiscal Year (``FY'') 2018, DOJ's immigration courts 
granted over 13,000 applications for asylum. See EOIR, Adjudication 
Statistics: Asylum Decision Rates, (July 14, 2020), https://www.justice.gov/eoir/page/file/1248491/download.
    \46\ Because asylum applications may be denied for multiple 
reasons and because the proposed bars do not have exact analogues in 
existing immigration law, there is no precise data on how many 
otherwise grantable asylum applications would be denied using these 
bars and, thus, there is no way to calculate precisely how many 
aliens would be granted withholding. Further, because the 
immigration judge would have to adjudicate the application in either 
case, there is no cost to DOJ.
    \47\ In FY 2018, DOJ's immigration courts completed 45,923 cases 
with an application for asylum on file. For the first three quarters 
of FY 2018, 622 applicants were denied asylum but granted 
withholding.
---------------------------------------------------------------------------

    The full extent of the impacts on this population is unclear and 
would depend on the specific circumstances and personal characteristics 
of each alien, and neither DHS nor DOJ collects such data at such a 
level of granularity. Both asylum applicants and those who receive 
withholding of removal or protection under CAT may obtain work 
authorization in the United States. Although asylees may apply for 
lawful permanent resident status and later citizenship, they are not 
required to do so, and some do not. Further, although asylees may bring 
certain family members to the United States, not all asylees have 
family members or family members who wish to leave their home 
countries. Moreover, family members of aliens granted withholding of 
removal may have valid asylum claims in their own right, which would 
provide them with a potential path to the United States as well. The 
only clear impact is that aliens granted withholding of removal 
generally may not travel outside the United States without executing 
their underlying order of removal and, thus, may not be allowed to 
return to the United States; however, even in that situation--depending 
on the destination of their travel--they may have a prima facie case 
for another grant of withholding of removal should they attempt to 
reenter. In short, there is no precise quantification available for the 
impact, if any, of this rule beyond the general notion that it will 
likely result in fewer grants of asylum on the whole.
    Applications for withholding of removal typically require a similar 
amount of in-court time to complete as an asylum application due to a 
similar nucleus of facts. 8 CFR 1208.3(b) (an asylum application is 
deemed to be an application for withholding of removal). In addition, 
this rule does not affect the eligibility of applicants for the 
employment authorization documents available to recipients of those 
protections and during the pendency of the consideration of the 
application in accordance with the current regulations and agency 
procedures. See 8 CFR 274a.12(c)(8), (c)(18), 208.7, 1208.7.
    This rule removes the provision at 8 CFR 208.16(e) and 1208.16(e) 
regarding automatic reconsideration of discretionary denials of asylum. 
This change has no impact on DHS adjudicative operations because DHS 
does not adjudicate withholding requests. DOJ estimates that 
immigration judges nationwide must apply 8 CFR 1208.16(e) in 
approximately 800 cases per year on average.\48\ The removal of the 
requirement to reconsider a discretionary denial will increase 
immigration court efficiencies and reduce any cost from the increased 
adjudication time by no longer requiring a second review of the same 
application by the same immigration judge. This impact, however, would 
likely be minor because of the small number of affected cases, and 
because affected aliens have other means to seek reconsideration of a 
discretionary denial of asylum. Accordingly, DOJ has concluded that 
removal of paragraphs 8 CFR 208.16(e) and 1208.16(e) would not increase 
the costs of EOIR's operations, and would, if anything, result in a 
small increase in efficiency. Removal of 8 CFR 208.16(e) and 1208.16(e) 
may have a marginal cost for aliens in immigration court proceedings by 
removing one avenue for an alien who would otherwise be denied asylum 
as a matter of discretion to be granted that relief. However, of the 
average of 800 aliens situated as such each year during the last 10 
years, an average of fewer than 150, or 0.4 percent, of the average 
38,000 total asylum completions \49\ each year filed an appeal in their 
case, so the affected population is very small, and the overall impact 
would be nominal at most.\50\ Moreover, such aliens would retain the 
ability to file a motion to reconsider in such a situation and, thus, 
would not actually lose the opportunity for reconsideration of a 
discretionary denial.
---------------------------------------------------------------------------

    \48\ This approximation is based on the number of initial case 
completions with an asylum application on file that had a denial of 
asylum but a grant of withholding during FYs 2009 through the third 
quarter of 2018.
    \49\ Thirty-eight thousand is the average of completions of 
cases with an asylum application on file from FY 2008 through FY 
2018. Completions consist of both initial case completions and 
subsequent case completions.
    \50\ Because each case may have multiple bases for appeal and 
appeal bases are not tracked to specific levels of granularity, it 
is not possible to quantify precisely how many appeals were 
successful on this particular issue.
---------------------------------------------------------------------------

    For the reasons explained above, the expected costs of this rule 
are likely to be de minimis. This rule is accordingly exempt from 
Executive Order 13771. See OMB, Guidance Implementing Executive Order 
13771, titled ``Reducing Regulation and Controlling Regulatory Costs'' 
(2017), https://www.whitehouse .gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf.

F. Executive Order 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

G. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

    This rule does not propose new or revisions to existing 
``collection[s] of information'' as that term is defined under the 
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. 3501 et 
seq., and its implementing regulations, 5 CFR part 1320.

I. Signature

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, has delegated the authority to 
electronically sign this document to Chad R. Mizelle, who is the Senior 
Official Performing the Duties of the General Counsel for DHS, for 
purposes of publication in the Federal Register.

List of Subjects

8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 1208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

[[Page 67258]]

DEPARTMENT OF HOMELAND SECURITY

    Accordingly, for the reasons set forth in the preamble and pursuant 
to the authority vested in the Acting Secretary of Homeland Security, 
part 208 of title 8 of the Code of Federal Regulations is amended as 
follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for part 208 continues to read as fol1ows:

    Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229, 8 CFR part 2; Pub. L. 115-218.


0
2. Amend Sec.  208.13 by adding paragraphs (c)(6) through (9) to read 
as follows:


Sec.  208.13  Establishing asylum eligibility.

* * * * *
    (c) * * *
    (6) Additional limitations on eligibility for asylum. For 
applications filed on or after November 20, 2020, an alien shall be 
found ineligible for asylum if:
    (i) The alien has been convicted on or after such date of an 
offense arising under sections 274(a)(1)(A), 274(a)(2), or 276 of the 
Act;
    (ii) The alien has been convicted on or after such date of a 
Federal, State, tribal, or local crime that the asylum officer knows or 
has reason to believe was committed in support, promotion, or 
furtherance of the activity of a criminal street gang as that term is 
defined either under the jurisdiction where the conviction occurred or 
in section 521(a) of title 18;
    (iii) The alien has been convicted on or after such date of an 
offense for driving while intoxicated or impaired as those terms are 
defined under the jurisdiction where the conviction occurred (including 
a conviction for driving while under the influence of or impaired by 
alcohol or drugs) without regard to whether the conviction is 
classified as a misdemeanor or felony under Federal, State, tribal, or 
local law, in which such impaired driving was a cause of serious bodily 
injury or death of another person;
    (iv)(A) The alien has been convicted on or after such date of a 
second or subsequent offense for driving while intoxicated or impaired 
as those terms are defined under the jurisdiction where the conviction 
occurred (including a conviction for driving while under the influence 
of or impaired by alcohol or drugs) without regard to whether the 
conviction is classified as a misdemeanor or felony under Federal, 
State, tribal, or local law;
    (B) A finding under paragraph (c)(6)(iv)(A) of this section does 
not require the asylum officer to find the first conviction for driving 
while intoxicated or impaired (including a conviction for driving while 
under the influence of or impaired by alcohol or drugs) as a predicate 
offense. The asylum officer need only make a factual determination that 
the alien was previously convicted for driving while intoxicated or 
impaired as those terms are defined under the jurisdiction where the 
convictions occurred (including a conviction for driving while under 
the influence of or impaired by alcohol or drugs).
    (v)(A) The alien has been convicted on or after such date of a 
crime that involves conduct amounting to a crime of stalking; or a 
crime of child abuse, child neglect, or child abandonment; or that 
involves conduct amounting to a domestic assault or battery offense, 
including a misdemeanor crime of domestic violence, as described in 
section 922(g)(9) of title 18, a misdemeanor crime of domestic violence 
as described in section 921(a)(33) of title 18, a crime of domestic 
violence as described in section 12291(a)(8) of title 34, or any crime 
based on conduct in which the alien harassed, coerced, intimidated, 
voluntarily or recklessly used (or threatened to use) force or violence 
against, or inflicted physical injury or physical pain, however slight, 
upon a person, and committed by:
    (1) An alien who is a current or former spouse of the person;
    (2) An alien with whom the person shares a child in common;
    (3) An alien who is cohabiting with or has cohabited with the 
person as a spouse;
    (4) An alien similarly situated to a spouse of the person under the 
domestic or family violence laws of the jurisdiction where the offense 
occurs; or
    (5) Any other alien against a person who is protected from that 
alien's acts under the domestic or family violence laws of the United 
States or any State, tribal government, or unit of local government.
    (B) In making a determination under paragraph (c)(6)(v)(A) of this 
section, including in determining the existence of a domestic 
relationship between the alien and the victim, the underlying conduct 
of the crime may be considered and the asylum officer is not limited to 
facts found by the criminal court or provided in the underlying record 
of conviction.
    (C) An alien who was convicted of offenses described in paragraph 
(c)(6)(v)(A) of this section is not subject to ineligibility for asylum 
on that basis if the alien would be described in section 237(a)(7)(A) 
of the Act were the crimes or conduct considered grounds for 
deportability under section 237(a)(2)(E)(i) through (ii) of the Act.
    (vi) The alien has been convicted on or after such date of--
    (A) Any felony under Federal, State, tribal, or local law;
    (B) Any misdemeanor offense under Federal, State, tribal, or local 
law involving:
    (1) The possession or use of an identification document, 
authentication feature, or false identification document without lawful 
authority, unless the alien can establish that the conviction resulted 
from circumstances showing that the document was presented before 
boarding a common carrier, that the document related to the alien's 
eligibility to enter the United States, that the alien used the 
document to depart a country in which the alien has claimed a fear of 
persecution, and that the alien claimed a fear of persecution without 
delay upon presenting himself or herself to an immigration officer upon 
arrival at a United States port of entry;
    (2) The receipt of Federal public benefits, as defined in 8 U.S.C. 
1611(c), from a Federal entity, or the receipt of similar public 
benefits from a State, tribal, or local entity, without lawful 
authority; or
    (3) Possession or trafficking of a controlled substance or 
controlled-substance paraphernalia, other than a single offense 
involving possession for one's own use of 30 grams or less of 
marijuana.
    (vii) The asylum officer knows or has reason to believe that the 
alien has engaged on or after such date in acts of battery or extreme 
cruelty as defined in 8 CFR 204.2(c)(1)(vi), upon a person, and 
committed by:
    (A) An alien who is a current or former spouse of the person;
    (B) An alien with whom the person shares a child in common;
    (C) An alien who is cohabiting with or has cohabited with the 
person as a spouse;
    (D) An alien similarly situated to a spouse of the person under the 
domestic or family violence laws of the jurisdiction where the offense 
occurs; or
    (E) Any other alien against a person who is protected from that 
alien's acts under the domestic or family violence laws of the United 
States or any State, tribal government, or unit of local

[[Page 67259]]

government, even if the acts did not result in a criminal conviction;
    (F) Except that an alien who was convicted of offenses or engaged 
in conduct described in paragraph (c)(6)(vii) of this section is not 
subject to ineligibility for asylum on that basis if the alien would be 
described in section 237(a)(7)(A) of the Act were the crimes or conduct 
considered grounds for deportability under section 237(a)(2)(E)(i)-(ii) 
of the Act.
    (7) For purposes of paragraph (c)(6) of this section:
    (i) The term ``felony'' means any crime defined as a felony by the 
relevant jurisdiction (Federal, State, tribal, or local) of conviction, 
or any crime punishable by more than one year of imprisonment.
    (ii) The term ``misdemeanor'' means any crime defined as a 
misdemeanor by the relevant jurisdiction (Federal, State, tribal, or 
local) of conviction, or any crime not punishable by more than one year 
of imprisonment.
    (iii) Whether any activity or conviction also may constitute a 
basis for removability under the Act is immaterial to a determination 
of asylum eligibility.
    (iv) All references to a criminal offense or criminal conviction 
shall be deemed to include any attempt, conspiracy, or solicitation to 
commit the offense or any other inchoate form of the offense.
    (v) No order vacating a conviction, modifying a sentence, 
clarifying a sentence, or otherwise altering a conviction or sentence, 
shall have any effect unless the asylum officer determines that--
    (A) The court issuing the order had jurisdiction and authority to 
do so; and
    (B) The order was not entered for rehabilitative purposes or for 
purposes of ameliorating the immigration consequences of the conviction 
or sentence.
    (8) For purposes of paragraph (c)(7)(v)(B) of this section, the 
order shall be presumed to be for the purpose of ameliorating 
immigration consequences if:
    (i) The order was entered after the initiation of any proceeding to 
remove the alien from the United States; or
    (ii) The alien moved for the order more than one year after the 
date of the original order of conviction or sentencing.
    (9) An asylum officer is authorized to look beyond the face of any 
order purporting to vacate a conviction, modify a sentence, or clarify 
a sentence to determine whether the requirements of paragraph (c)(7)(v) 
of this section have been met in order to determine whether such order 
should be given any effect under this section.


Sec.  208.16   [Amended]

0
3. Amend Sec.  208.16 by removing and reserving paragraph (e).

Department of Justice

    Accordingly, for the reasons set forth in the preamble, the 
Attorney General amends 8 CFR part 1208 as follows:

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
4. The authority citation for part 1208 continues to read as fol1ows:

    Authority:  8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Public Law 110-229; Pub. L. 115-218.


0
5. Amend Sec.  1208.13 by adding paragraphs (c)(6) through (9) to read 
as follows:


Sec.  1208.13  Establishing asylum eligibility.

* * * * *
    (c) * * *
    (6) Additional limitations on eligibility for asylum. For 
applications filed on or after November 20, 2020, an alien shall be 
found ineligible for asylum if:
    (i) The alien has been convicted on or after such date of an 
offense arising under sections 274(a)(1)(A), 274(a)(2), or 276 of the 
Act;
    (ii) The alien has been convicted on or after such date of a 
Federal, State, tribal, or local crime that the immigration judge knows 
or has reason to believe was committed in support, promotion, or 
furtherance of the activity of a criminal street gang as that term is 
defined either under the jurisdiction where the conviction occurred or 
in section 521(a) of title 18;
    (iii) The alien has been convicted on or after such date of an 
offense for driving while intoxicated or impaired as those terms are 
defined under the jurisdiction where the conviction occurred (including 
a conviction for driving while under the influence of or impaired by 
alcohol or drugs) without regard to whether the conviction is 
classified as a misdemeanor or felony under Federal, State, tribal, or 
local law, in which such impaired driving was a cause of serious bodily 
injury or death of another person;
    (iv)(A) The alien has been convicted on or after such date of a 
second or subsequent offense for driving while intoxicated or impaired 
as those terms are defined under the jurisdiction where the conviction 
occurred (including a conviction for driving while under the influence 
of or impaired by alcohol or drugs) without regard to whether the 
conviction is classified as a misdemeanor or felony under Federal, 
State, tribal, or local law;
    (B) A finding under paragraph (c)(6)(iv)(A) of this section does 
not require the immigration judge to find the first conviction for 
driving while intoxicated or impaired (including a conviction for 
driving while under the influence of or impaired by alcohol or drugs) 
as a predicate offense. The immigration judge need only make a factual 
determination that the alien was previously convicted for driving while 
intoxicated or impaired as those terms are defined under the 
jurisdiction where the convictions occurred (including a conviction for 
driving while under the influence of or impaired by alcohol or drugs).
    (v)(A) The alien has been convicted on or after such date of a 
crime that involves conduct amounting to a crime of stalking; or a 
crime of child abuse, child neglect, or child abandonment; or that 
involves conduct amounting to a domestic assault or battery offense, 
including a misdemeanor crime of domestic violence, as described in 
section 922(g)(9) of title 18, a misdemeanor crime of domestic violence 
as described in section 921(a)(33) of title 18, a crime of domestic 
violence as described in section 12291(a)(8) of title 34, or any crime 
based on conduct in which the alien harassed, coerced, intimidated, 
voluntarily or recklessly used (or threatened to use) force or violence 
against, or inflicted physical injury or physical pain, however slight, 
upon a person, and committed by:
    (1) An alien who is a current or former spouse of the person;
    (2) An alien with whom the person shares a child in common;
    (3) An alien who is cohabiting with or has cohabited with the 
person as a spouse;
    (4) An alien similarly situated to a spouse of the person under the 
domestic or family violence laws of the jurisdiction where the offense 
occurs; or
    (5) Any other alien against a person who is protected from that 
alien's acts under the domestic or family violence laws of the United 
States or any State, tribal government, or unit of local government.
    (B) In making a determination under paragraph (c)(6)(v)(A) of this 
section, including in determining the existence of a domestic 
relationship between the alien and the victim, the underlying conduct 
of the crime may be considered and the immigration judge is not limited 
to facts found by the criminal court or

[[Page 67260]]

provided in the underlying record of conviction.
    (C) An alien who was convicted of offenses described in paragraph 
(c)(6)(v)(A) of this section is not subject to ineligibility for asylum 
on that basis if the alien would be described in section 237(a)(7)(A) 
of the Act were the crimes or conduct considered grounds for 
deportability under section 237(a)(2)(E)(i) through (ii) of the Act.
    (vi) The alien has been convicted on or after such date of--
    (A) Any felony under Federal, State, tribal, or local law;
    (B) Any misdemeanor offense under Federal, State, tribal, or local 
law involving:
    (1) The possession or use of an identification document, 
authentication feature, or false identification document without lawful 
authority, unless the alien can establish that the conviction resulted 
from circumstances showing that the document was presented before 
boarding a common carrier, that the document related to the alien's 
eligibility to enter the United States, that the alien used the 
document to depart a country in which the alien has claimed a fear of 
persecution, and that the alien claimed a fear of persecution without 
delay upon presenting himself or herself to an immigration officer upon 
arrival at a United States port of entry;
    (2) The receipt of Federal public benefits, as defined in 8 U.S.C. 
1611(c), from a Federal entity, or the receipt of similar public 
benefits from a State, tribal, or local entity, without lawful 
authority; or
    (3) Possession or trafficking of a controlled substance or 
controlled-substance paraphernalia, other than a single offense 
involving possession for one's own use of 30 grams or less of 
marijuana.
    (vii) The immigration judge knows or has reason to believe that the 
alien has engaged on or after such date in acts of battery or extreme 
cruelty as defined in 8 CFR 204.2(c)(1)(vi), upon a person, and 
committed by:
    (A) An alien who is a current or former spouse of the person;
    (B) An alien with whom the person shares a child in common;
    (C) An alien who is cohabiting with or has cohabited with the 
person as a spouse;
    (D) An alien similarly situated to a spouse of the person under the 
domestic or family violence laws of the jurisdiction where the offense 
occurs; or
    (E) Any other alien against a person who is protected from that 
alien's acts under the domestic or family violence laws of the United 
States or any State, tribal government, or unit of local government, 
even if the acts did not result in a criminal conviction;
    (F) Except that an alien who was convicted of offenses or engaged 
in conduct described in paragraph (c)(6)(vii) of this section is not 
subject to ineligibility for asylum on that basis if the alien would be 
described in section 237(a)(7)(A) of the Act were the crimes or conduct 
considered grounds for deportability under section 237(a)(2)(E)(i)-(ii) 
of the Act.
    (7) For purposes of paragraph (c)(6) of this section:
    (i) The term ``felony'' means any crime defined as a felony by the 
relevant jurisdiction (Federal, State, tribal, or local) of conviction, 
or any crime punishable by more than one year of imprisonment.
    (ii) The term ``misdemeanor'' means any crime defined as a 
misdemeanor by the relevant jurisdiction (Federal, State, tribal, or 
local) of conviction, or any crime not punishable by more than one year 
of imprisonment.
    (iii) Whether any activity or conviction also may constitute a 
basis for removability under the Act is immaterial to a determination 
of asylum eligibility.
    (iv) All references to a criminal offense or criminal conviction 
shall be deemed to include any attempt, conspiracy, or solicitation to 
commit the offense or any other inchoate form of the offense.
    (v) No order vacating a conviction, modifying a sentence, 
clarifying a sentence, or otherwise altering a conviction or sentence, 
shall have any effect unless the immigration judge determines that--
    (A) The court issuing the order had jurisdiction and authority to 
do so; and
    (B) The order was not entered for rehabilitative purposes or for 
purposes of ameliorating the immigration consequences of the conviction 
or sentence.
    (8) For purposes of paragraph (c)(7)(v)(B) of this section, the 
order shall be presumed to be for the purpose of ameliorating 
immigration consequences if:
    (i) The order was entered after the initiation of any proceeding to 
remove the alien from the United States; or
    (ii) The alien moved for the order more than one year after the 
date of the original order of conviction or sentencing.
    (9) An immigration judge is authorized to look beyond the face of 
any order purporting to vacate a conviction, modify a sentence, or 
clarify a sentence to determine whether the requirements of paragraph 
(c)(7)(v) of this section have been met in order to determine whether 
such order should be given any effect under this section.


Sec.  1208.16  [Amended]

0
6. Amend Sec.  1208.16 by removing and reserving paragraph (e).

    Approved:
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S. 
Department of Homeland Security.

    Approved:

    Dated: October 14, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-23159 Filed 10-20-20; 8:45 am]
BILLING CODE 4410-30-P 9111-97-P