Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 80274-80401 [2020-26875]
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Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Rules and Regulations
This rule is effective on January
11, 2021.
FOR FURTHER INFORMATION CONTACT:
Lauren Alder Reid, Assistant Director,
Office of Policy, Executive Office for
Immigration Review, 5107 Leesburg
Pike, Falls Church, VA 22041, telephone
(703) 305–0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
DATES:
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 208 and 235
RIN 1615–AC42
DEPARTMENT OF JUSTICE
Executive Office for Immigration
Review
I. Executive Summary of the Final Rule
8 CFR Parts 1003, 1208, and 1235
[EOIR Docket No. 18–0102; A.G. Order No.
4922–2020]
RIN 1125–AA94
Procedures for Asylum and
Withholding of Removal; Credible Fear
and Reasonable Fear Review
Department of Homeland
Security; Executive Office for
Immigration Review, Department of
Justice.
ACTION: Final rule.
AGENCY:
On June 15, 2020, the
Department of Homeland Security
(‘‘DHS’’) and the Department of Justice
(‘‘DOJ’’) (collectively ‘‘the
Departments’’) published a notice of
proposed rulemaking (‘‘NPRM’’ or
‘‘proposed rule’’) that would amend the
regulations governing credible fear
determinations. The proposed rule
would make it so that individuals found
to have a credible fear will have their
claims for asylum, withholding of
removal under section 241(b)(3) of the
Immigration and Nationality Act (‘‘INA’’
or ‘‘the Act’’) (‘‘statutory withholding of
removal’’), 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’’), adjudicated by
an immigration judge within the
Executive Office for Immigration
Review (‘‘EOIR’’) in streamlined
proceedings (rather than under section
240 of the Act), and to specify what
standard of review applies in such
streamlined proceedings. The
Departments further proposed changes
to the regulations regarding asylum,
statutory withholding of removal, and
withholding and deferral of removal
under the Convention Against Torture
(‘‘CAT’’) regulations. The Departments
also proposed amendments related to
the standards for adjudication of
applications for asylum and statutory
withholding. This final rule (‘‘rule’’ or
‘‘final rule’’) responds to comments
received in response to the NPRM and
generally adopts the NPRM with few
substantive changes.
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SUMMARY:
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On June 15, 2020, the Departments
published an NPRM that would amend
the regulations governing credible fear
determinations to establish streamlined
proceedings under a clarified standard
of review. Procedures for Asylum and
Withholding of Removal; Credible Fear
and Reasonable Fear Review, 85 FR
36264 (June 15, 2020). The proposed
rule would also amend regulations
regarding asylum, statutory withholding
of removal, and withholding and
deferral of removal under the
regulations. Id.
The following discussion describes
the provisions of the final rule, which
is substantially the same as the NPRM,
and summarizes the changes made in
the final rule.
A. Authority and Legal Framework
The Departments are publishing this
final rule pursuant to their respective
authorities under the Immigration and
Nationality Act (‘‘INA’’) as amended by
the Homeland Security Act of 2002
(‘‘HSA’’), Public Law 107–296, 116 Stat.
2135.
The INA, as amended by the HSA,
charges the Secretary ‘‘with the
administration and enforcement of this
chapter [titled ‘‘Immigration and
Nationality’’] and all other laws relating
to the immigration and naturalization of
aliens’’ and granted the Secretary the
power to take all actions ‘‘necessary for
carrying out’’ the provisions of the
immigration and nationality laws. INA
103(a)(1) and (3), 8 U.S.C. 1103(a)(1)
and (3); See HSA, sec. 1102, 116 Stat.
at 2273–74; Consolidated
Appropriations Resolution of 2003,
Public Law 108–7, sec. 105, 117 Stat. 11,
531.
The HSA charges the Attorney
General with ‘‘such authorities and
functions under this chapter and all
other laws relating to the immigration
and naturalization of aliens as were
[previously] exercised by [EOIR], or by
the Attorney General with respect to
[EOIR] . . . .’’ INA 103(g)(1), 8 U.S.C.
1103(g)(1); see 6 U.S.C. 521; HSA, sec.
1102, 116 Stat. at 2274.
Furthermore, the Attorney General is
authorized to ‘‘establish such
regulations, prescribe such forms of
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bond, reports, entries, and other papers,
issue such instructions, review such
administrative determinations in
immigration proceedings, delegate such
authority, and perform such other acts
as the Attorney General determines to
be necessary for carrying out this
section.’’ INA 103(g)(2), 8 U.S.C.
1103(g)(2); HSA, sec. 1102, 116 Stat.
2135, 2274.
B. Changes in the Final Rule
Through the NPRM, the Departments
sought to satisfy a basic tenet of asylum
law: To assert a ‘‘government’s right and
duty to protect its own resources and
citizens, while aiding those in true need
of protection from harm.’’ 85 FR at
36265 (citations omitted). To achieve
this dual aim, the Departments
proposed numerous amendments to the
DHS and DOJ regulations.1 After
carefully reviewing all of the comments
received on the NPRM, the Departments
are making the following changes to the
final rule.
This final rule makes thirteen nonsubstantive changes to the regulatory
provisions in the proposed rule, some of
which were noted by commenters. First,
the final rule corrects a typographical
error—i.e. ‘‘part’’ rather than ‘‘party’’—
in 8 CFR 208.30(e)(2)(ii), which was
proposed to read, ‘‘Such other facts as
are known to the officer, including
whether the alien could avoid a future
threat to his or her life or freedom by
relocating to another party of the
proposed country of removal and, under
all circumstances, it would be
reasonable to expect the applicant to do
so’’ (emphasis added). Second, the
Departments added the word ‘‘for’’ to
correct the form name ‘‘Application for
Asylum and for Withholding of
Removal’’ at 8 CFR 208.31(g)(2),
1208.30(g)(2)(iv)(B), and 1208.31(g)(2).
Third, the Departments are replacing the
word ‘‘essential’’ with the word
‘‘material’’ in 8 CFR 208.20(c)(1) and
1208.20(c)(1), consistent with the stated
intent of the NPRM.
Fourth, the Departments are making
stylistic revisions to 8 CFR 208.15(a)(1)
and 1208.15(a)(1), including breaking
them into three subparagraphs, to make
them easier to follow and to reduce the
risk of confusion. Fifth, the Departments
1 In addition to the amendments outlined in more
detail herein, the Departments also proposed
additional minor amendments for clarity, such as
replacing references to the former Immigration and
Naturalization Service with references to DHS
where appropriate (see, e.g., 8 CFR 208.13(b)(3)(ii))
or replacing forms listed by form number with the
form’s name (see, e.g., 8 CFR 1003.42(e)). The
Departments also further reiterate the full
explanation and justifications for the proposed
changes set out in the preamble to the NPRM. 85
FR at 36265–88.
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are editing the temporal language in 8
CFR 208.15(a)(3)(i) and (ii) and
1208.15(a)(3)(i) for clarity and
consistency with similar language in 8
CFR 208.15(a)(2) and 1208.15(a)(2). The
edited language clarifies the relevant
temporal scope to read ‘‘after departing
his country of nationality or last
habitual residence and prior to arrival in
or entry into the United States’’ in lieu
of the language in the NPRM. Sixth, the
Departments are striking the
parenthetical phrase ‘‘(‘‘rogue official’’)’’
in 8 CFR 208.18(a)(1) and 1208.18(a)(1).
Relatedly, they are replacing the
remaining uses of the phrase ‘‘rogue
official’’ in 8 CFR 208.16(b)(3)(iv),
208.18(a)(1), and 1208.18(a)(1) with its
definition, ‘‘public official who is not
acting under color of law.’’ 2 Seventh,
the Departments are adding the
clarifying phrase ‘‘as defined in section
212(a)(9)(B)(ii) and (iii) of the Act’’ to 8
CFR 208.13(d)(2)(i)(D) and
1208.13(d)(2)(i)(D) consistent with the
intent of the NPRM. Eighth, the
Departments are clarifying the language
in 8 CFR 208.1(g) and 1208.1(g) to
alleviate apparent confusion and
improve consistency with the intent of
the NPRM regarding the use of
stereotypes as evidence for an asylum
claim. A bald statement that a country
or its denizens have a particular cultural
trait that causes citizens, nationals, or
residents of that country to engage in
persecution is evidence lacking in
probative value and has no place in an
adjudication.
Ninth, the Departments are making
conforming edits to 8 CFR 208.6(a) and
(b) and 8 CFR 1208.6(a) and (b) to make
clear that the disclosure provisions of 8
CFR 208.6 and 1208.6 apply to
applications for withholding of removal
under the INA and for protection under
the regulations implementing the CAT,3
and not solely to asylum applications.
That point is already clear in 8 CFR
208.6(d), (e) and 1208.6(d), (e), and the
Departments see no reason not to
conform the other paragraphs in that
section for consistency. Tenth, and
relatedly, the Departments are making
edits to 8 CFR 208.6(a), (b), (d) and (e)
and 8 CFR 1208.6(a) and (b), (d), and (e)
to make clear that applications for
refugee admission pursuant to INA
2 The NPRM did not use the term ‘‘rogue official’’
in 8 CFR 1208.16(b)(3)(iv); rather it referred to
‘‘officials acting outside their official capacity.’’ The
discrepancy regarding this phrasing between 8 CFR
208.16(b)(3)(iv) 8 CFR 1208.16(b)(3)(iv) in the
NPRM was inadvertent, and the Departments are
correcting it accordingly in both regulations in the
final rule.
3 See UN General Assembly, Convention Against
Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 10 December 1984,
United Nations, Treaty Series, vol. 1465, p. 85.
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207(c)(1), 8 U.S.C. 1157(c)(1), and 8 CFR
part 207 are subject to the same
information disclosure provisions as
similar applications for asylum,
withholding of removal under the INA,
and protection under the regulations
implementing the CAT. The
Departments already apply the
disclosure provisions to such
applications as a matter of policy and
see no basis to treat such applications
differently than those for protection
filed by aliens already in or arriving in
the United States. Eleventh, the
Departments are amending 8 CFR
208.13(d)(2)(ii) to reflect that,
operationally, DHS may refer or deny an
asylum application, depending on the
circumstances of the applicant. See 8
CFR 208.14. Twelfth, the Departments
are correcting 8 CFR 1208.30(g)(1)(i), (ii)
to reflect that asylum officers issue
determinations, not orders. See 8 CFR
208.30(e).
Thirteenth, EOIR is making a
conforming change to 8 CFR 1244.4(b)
to align it with the both the appropriate
statutory citation and the corresponding
language in 8 CFR 244.4(b). Aliens
described in INA 208(b)(2)(A), 8 U.S.C.
1158(b)(2)(A), including those subject to
the firm resettlement bar contained in
INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi), are ineligible for
Temporary Protected Status. That
statutory ineligibility ground is
incorporated into regulations in both
chapter I and chapter V of title 8;
however, while the title I provision, 8
CFR 244.4(b), cites the correct statutory
provision—INA 208(b)(2)(A)(vi), 8
U.S.C. 1158(b)(2)(A)(vi)—the title V
provision, 8 CFR 1244.4(b), maintains
an outdated reference to an incorrect
statutory provision. Compare 8 CFR
244.4(b) (referencing INA 208(b)(2)(A), 8
U.S.C. 1158(b)(2)(A)), with 8 CFR
1244.4(b) (referencing former INA
243(h)(2), 8 U.S.C. 1253(h)(2)).
The Departments are also making four
non-substantive changes in the final
rule to correct regulatory provisions that
were inadvertently changed or deleted
in the proposed rule or that introduced
an unnecessary redundancy. First, the
final rule reinserts language relating to
DHS’s ability to reconsider a negative
credible fear finding that has been
concurred upon by an immigration
judge after providing notice of its
reconsideration to the immigration
judge, which was inadvertently
removed from 8 CFR
1208.30(g)(2)(iv)(A) in the NPRM. The
final rule reinserts that language in 8
CFR 208.30(g)(2)(i); it pertains to a DHS
procedure and, thus, appropriately
belongs in chapter I, rather than chapter
V, of title 8.
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Second, the final rule strikes the
regulatory text changes proposed to 8
CFR 103.5. Those changes were not
discussed in the preamble to the NPRM
and were inadvertently included in the
NPRM’s proposed regulatory text.
Third, the final rule reinserts the
consideration—of-novel-or-uniqueissues language in 8 CFR 208.30(e)(4)
that was inadvertently proposed to be
removed in the NPRM, with
modifications to account for changes in
terminology adopted via this final rule
(specifically, ‘‘[i]n determining whether
the alien has a credible fear of
persecution, as defined in section
235(b)(1)(B)(v) of the Act, or a
reasonable possibility of persecution or
torture, the asylum officer shall consider
whether the alien’s case presents novel
or unique issues that merit
consideration in a full hearing before an
immigration judge.’’).
Fourth, this final rule removes the
following sentence from the proposed 8
CFR 208.30(e)(4): ‘‘An asylum officer’s
determination will not become final
until reviewed by a supervisory asylum
officer.’’ Nearly identical text already
exists in 8 CFR 208.30(e)(8) and would
be repetitive to include in 8 CFR
208.30(e)(4).
In response to issues raised by
commenters or to eliminate potential
confusion caused by the drafting in the
NPRM, the Departments are making five
additional changes to the NPRM in the
final rule. First, the Departments are
amending the waiver provision in 8 CFR
208.1(c) and 1208.1(c) related to claims
of ineffective assistance of counsel to
provide an exception for egregious
conduct on the part of counsel. As
discussed, infra, the Departments
believe that cognizable ineffective
assistance of counsel claims in the
context of failing to assert a particular
social group should be extremely rare. If
a particular social group is not asserted
because the alien did not tell his or her
counsel about it, then there has been no
ineffective assistance on the part of
counsel. If the alien did provide his or
her counsel with a particular social
group and counsel elected not to present
it as a strategic choice, then there is no
basis to reopen the proceedings. See
Matter of B–B-, 22 I&N Dec. at 310
(‘‘subsequent dissatisfaction with a
strategic decision of counsel is not
grounds to reopen’’). Nevertheless, the
Departments recognize there may be sui
generis situations in which ‘‘egregious
circumstances’’ may warrant reopening
due to ineffective assistance of counsel
in this context, provided that
appropriate procedural requirements for
such a claim are observed. Thus, the
Departments are adding such an
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exception to the final rule, consistent
with existing case law. See id. (‘‘The
respondents opted for a particular
strategy and form of relief, and although
they might wish to fault their former
attorney and recant that decision, they
are nonetheless bound by it, unless they
can show egregious conduct on
counsel’s part.’’); see also Matter of
Velasquez, 19 I&N Dec. 377, 377 (BIA
1986) (concession of attorney is binding
on an alien absent egregious
circumstances).
Second, the Departments are
amending the language in 8 CFR
208.1(e) and 1208.1(e) regarding when
threats may constitute persecution to
clarify that particularized threats of
severe harm of an immediate and
menacing nature made by an identified
entity or person may constitute
persecution, though the Departments
expect that such cases will be rare. This
revision, as discussed infra, is
consistent with existing case law. See
Duran-Rodriguez v. Barr, 918 F.3d 1025,
1028 (9th Cir. 2019) (‘‘death threats
alone can constitute persecution’’ but
‘‘they constitute ‘persecution in only a
small category of cases, and only when
the threats are so menacing as to cause
significant actual suffering or harm’ ’’
(citation omitted)). As noted, threats
‘‘combined with confrontation or other
mistreatment’’ are likely to be
persecution; however, ‘‘cases with
threats alone, particularly anonymous
or vague ones, rarely constitute
persecution.’’ Id. (citation omitted)
(emphasis added); see also Juan Antonio
v. Barr, 959 F.3d 778, 794 (6th Cir. 2020)
(threats alone amount to persecution
only when they are ‘‘of the most
immediate and menacing nature’’
(citation omitted)).
Third, in recognition of commenters’
concerns and the reality that aliens
under the age of 18, especially very
young children, may not have
decisional independence regarding an
illegal entry into the United States, the
Departments are amending 8 CFR
208.13(d)(1)(i) and 1208.13(d)(1)(i) to
reflect that an unlawful or attempted
unlawful entry into the United States by
an alien under the age of 18 will not be
considered as a significant adverse
discretionary factor in considering a
subsequent asylum application filed by
such an alien. The Departments do not
believe that a similar exception is
warranted in 8 CFR 208.13(d)(1)(ii) and
(iii), and 1208.13(d)(1)(ii) and (iii),
however. For (d)(1)(ii) to apply to an
alien under the age of 18, that alien
must have filed an asylum application
in the United States, notwithstanding
any language barriers or other
impediments; thus, there is no reason to
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assume categorically that such an alien
could not have filed an application for
protection in another country.
Consequently, the Departments find that
no age exemption is warranted in 8 CFR
208.13(d)(1)(ii) and 1208.13(d)(1)(ii).
Further, as discussed, infra, there is no
reason that an alien of any age would
need to use fraudulent documents to
enter the United States in order to seek
asylum. Accordingly, no age exemption
is warranted in 8 CFR 208.13(d)(1)(iii)
and 1208.13(d)(1)(iii). Even without age
exemptions, the Departments note that
these discretionary factors do not
constitute bars to asylum and that
adjudicators may appropriately consider
an applicant’s age in assessing whether
a particular application warrants being
granted as a matter of discretion.
Fourth, in response to commenters’
concerns about the applicable effective
date of the frivolousness provisions in 8
CFR 208.20 and 1208.20, the
Departments have clarified the language
in those provisions. The amendments to
those provisions provided in this rule
apply only to asylum applications filed
on or after the effective date of the rule.
The current definition of
‘‘frivolousness’’ will continue to apply
to asylum applications filed between
April 1, 1997, and the effective date of
the rule.
Fifth, to avoid confusion and
potential conflict between the proposed
language of 8 CFR 208.20(b) and
1208.20(b) and 8 CFR 208.20(d) and
1208.20(d), the Departments are deleting
language in the former regarding an
alien’s opportunity to account for issues
with a claim. The intent of the NPRM,
expressed unequivocally in the
proposed addition of 8 CFR 208.20(d)
and 1208.20(d), was clear that
adjudicators would not be required to
provide ‘‘multiple opportunities for an
alien to disavow or explain a knowingly
frivolous application.’’ 85 FR at 36276.
The Departments inadvertently retained
language from the current rule in the
proposed additions of 8 CFR 208.20(b)
and 1208.20(b), however, that was in
tension with that intent. Compare, e.g.,
8 CFR 208.20(b) (proposed) (‘‘Such
finding [of frivolousness] will only be
made if the asylum officer is satisfied
that the applicant has had sufficient
opportunity to account for any
discrepancies or implausible aspects of
the claim.’’), with 8 CFR 208.20(d)
(proposed) (‘‘If the alien has been
provided the warning required by
section 208(d)(4)(A) of the Act, he or she
need not be given any additional or
further opportunity to account for any
issues with his or her claim prior to the
entry of a frivolous finding.’’).
Accordingly, in the final rule, the
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Departments are deleting the sentence
from 8 CFR 208.20(b) and 1208.20(b)
regarding an alien’s opportunity to
address issues with his or her claim
after receiving the statutory warning
regarding the knowing filing of a
frivolous asylum application to avoid
any residual confusion on the point.
The following discussion describes
the provisions of the final rule, which
are substantially the same as the NPRM,
and also incorporates the changes made
in the final rule summarized above.
C. Provisions of the Final Rule
1. Expedited Removal and Screenings in
the Credible Fear Process
1.1. Asylum-and-Withholding-Only
Proceedings for Aliens With Credible
Fear
DOJ is amending 8 CFR 1003.1, 8 CFR
1003.42(f), 8 CFR 1208.2, 8 CFR
1208.30, and 8 CFR 1235.6—and DHS is
amending 8 CFR 208.2(c), 8 CFR
208.30(e)(5) and (f), and 8 CFR
235.6(a)(1)—so that aliens who establish
a credible fear of persecution, a
reasonable possibility of persecution, or
a reasonable possibility of torture and
accordingly receive a positive fear
determination would appear before an
immigration judge for ‘‘asylum-andwithholding-only’’ proceedings under 8
CFR 208.2(c)(1) and 8 CFR 1208.2(c)(1).
Such proceedings would be adjudicated
in the same manner that currently
applies to certain alien crewmembers,
stowaways, and applicants for
admission under the Visa Waiver
Program, among other categories of
aliens who are not entitled by statute to
proceedings under section 240 of the
Act, 8 U.S.C. 1229a. See 8 CFR
208.2(c)(1)(i)–(viii), 1208.2(c)(1)(i)–
(viii).4 Additionally, to ensure that these
claims receive the most expeditious
consideration possible, the Departments
are amending 8 CFR 208.5 and 8 CFR
1208.5 to require DHS to make available
appropriate applications and relevant
warnings to aliens in its custody who
have expressed a fear in the expedited
removal process and received a positive
determination. The Departments believe
that this change would bring the
proceedings in line with the statutory
objective that the expedited removal
process be streamlined and efficient.
4 In addition, DOJ proposed a technical correction
to 8 CFR 1003.1(b), which establishes the
jurisdiction of the BIA, to correct the reference to
8 CFR 1208.2 in paragraph (b)(9) and ensure that
the regulations accurately authorize BIA review in
‘‘asylum-and-withholding-only’’ proceedings.
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1.2. Consideration of Precedent in
Credible Fear Determinations
DOJ is adding language to 8 CFR
1003.42(f) to specify that an
immigration judge will consider
applicable legal precedent when
reviewing a negative fear determination.
This instruction would be in addition to
those currently listed in 8 CFR 1003.42
to consider the credibility of the alien’s
statements and other facts of which the
immigration judge is aware. These
changes would codify in the regulations
the current practice and provide a clear
requirement to immigration judges that
they must consider and apply all
applicable law, including administrative
precedent from the Board of
Immigration Appeals (‘‘BIA’’), decisions
of the Attorney General, decisions of the
Federal courts of appeals binding in the
jurisdiction where the immigration
judge conducting the review sits, and
decisions of the Supreme Court.
1.3. Remove and Reserve DHS-Specific
Procedures From DOJ Regulations
DOJ is removing and reserving the
following provisions in chapter V of 8
CFR: 8 CFR 1235.1, 8 CFR 1235.2, 8 CFR
1235.3, and 8 CFR 1235.5. When the
Department first incorporated part 235
into 1235, it stated that ‘‘nearly all of the
provisions * * * affect bond hearings
before immigration judges.’’ Aliens and
Nationality; Homeland Security;
Reorganization of Regulations, 68 FR
9823, 9826 (Feb. 28, 2003). Upon further
review, the Department determined that
these sections regard procedures that are
specific to DHS’s examinations of
applicants for admission as set forth in
8 CFR 235.1, 8 CFR 235.2, 8 CFR 235.3,
and 8 CFR 235.5, and do not need to be
duplicated in the regulations for EOIR
in Chapter V, except for the provisions
in 8 CFR 1235.4, relating to the
withdrawal of an application for
admission, and 8 CFR 1235.6, relating to
the referral of cases to an immigration
judge.
In comparison to the NPRM, this final
rule is making an additional technical
amendment by updating the outdated
reference to ‘‘the Service’’ in 8 CFR
1235.6(a)(1)(ii) to read ‘‘DHS.’’
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1.4. Reasonable Possibility Standard for
Statutory Withholding of Removal and
Torture-Related Fear Determinations
The Departments are amending 8 CFR
208.30 and 8 CFR 1208.30 to clarify and
raise the statutory withholding of
removal screening standard and the
torture-related screening standard under
the CAT regulations for aliens in
expedited removal proceedings and
stowaways. Specifically, the
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Departments are amending 8 CFR
208.30 and 8 CFR 1208.30 to raise the
standard of proof in credible fear
screenings from a significant possibility
that the alien can establish eligibility for
statutory withholding of removal to a
reasonable possibility that the alien
would be persecuted because of his or
her race, religion, nationality,
membership in a particular social group,
or political opinion. See 8 CFR 208.16,
208.30(e)(2), 1208.16. Similarly, for
aliens expressing a fear of torture, the
Departments are amending 8 CFR
208.30 and 8 CFR 1208.30 to raise the
standard of proof from a significant
possibility that the alien is eligible for
withholding or deferral of removal
under the CAT regulations to a
reasonable possibility that the alien
would be tortured in the country of
removal. See 8 CFR 208.18(a),
208.30(e)(3), 1208.18(a); 85 FR at 36268.
Consistent with INA 235(b)(1)(B)(v), 8
U.S.C. 1225(b)(1)(B)(v), the asylum
eligibility screening standard (a
significant possibility that the alien
could establish eligibility for asylum)
currently applied in credible fear
screenings remains unchanged. See INA
235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). By clarifying and
applying the ‘‘reasonable possibility’’
standard to the statutory withholding of
removal screening and the torturerelated screening under the CAT
regulations, the alien’s screening
burdens would become adequately
analogous to the merits burdens, where
the alien’s burdens for statutory
withholding of removal and protections
under the CAT regulations are higher
than the burden for asylum.
The Departments are also amending 8
CFR 208.30, 8 CFR 1208.30, and 8 CFR
1003.42 to refer to the screenings of
aliens in expedited removal proceedings
and of stowaways for statutory
withholding of removal as ‘‘reasonable
possibility of persecution’’
determinations and the screening for
withholding and deferral of removal
under the CAT regulations as
‘‘reasonable possibility of torture’’
determinations, in order to avoid
confusion between the different
standards of proof.
In conjunction with the edits to DHS’s
regulation in 8 CFR 208.30, DOJ is
amending 8 CFR 1208.30. Currently,
after an asylum officer determines that
an alien lacks a credible fear of
persecution or torture, the regulation
provides that an immigration judge in
EOIR reviews that determination under
the credible fear (‘‘significant
possibility’’) standard. 8 CFR 208.30(g),
1208.30(g). DHS’s ‘‘reasonable
possibility’’ screening standard for
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statutory withholding of removal and
CAT protection claims is a mismatch
with EOIR’s current regulation, which
does not provide for a reasonable
possibility review process in the
expedited removal context. Therefore,
DOJ is modifying 8 CFR 1208.30(g) to
clarify that credible fear of persecution
determinations (i.e., screening for
asylum eligibility) would continue to be
reviewed under a ‘‘credible fear’’
(significant possibility) standard, but
screening determinations for eligibility
for statutory withholding of removal
and protection under the CAT
regulations would be reviewed under a
‘‘reasonable possibility’’ standard.
Additionally, to clarify terminology in
8 CFR 208.30(d)(2), mention of the Form
M–444, Information about Credible Fear
Interview in Expedited Removal Cases,
is replaced with mention of relevant
information regarding the ‘‘fear
determination process.’’ This change
clarifies that DHS may relay information
regarding screening for a reasonable
possibility of persecution and a
reasonable possibility of torture, in
addition to a credible fear of
persecution.
DHS is also revising the language in
8 CFR 208.30(e)(1) to interpret the
‘‘significant possibility’’ standard that
Congress established in section
235(b)(1)(B)(v) of the Act, 8 U.S.C.
1225(b)(1)(B)(v).
In comparison to the NPRM, this final
rule is correcting a typographical error—
i.e. ‘‘part’’ rather than ‘‘party’’—in 8
CFR 208.30(e)(2)(ii). The sentence now
reads: ‘‘Such other facts as are known to
the officer, including whether the alien
could avoid a future threat to his or her
life or freedom by relocating to another
part of the proposed country of removal
and, under all circumstances, it would
be reasonable to expect the applicant to
do so[.]’’ In addition, this final rule adds
the word ‘‘for’’ to correct the form name
‘‘Application for Asylum and for
Withholding of Removal’’ at 8 CFR
1208.30(g)(2)(iv)(B). This final rule also
reinserts language allowing DHS to
reconsider a negative credible fear
finding that has been concurred upon by
an immigration judge after providing
notice of its reconsideration to the
immigration judge, which was
inadvertently removed from 8 CFR
1208.30(g)(2)(iv)(A) in the NPRM. The
final rule reinserts that language in 8
CFR 208.30(g)(2)(i) because it pertains to
a DHS procedure and, thus,
appropriately belongs in chapter I,
rather than chapter V, of title 8.
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1.5. Amendments to the Credible Fear
Screening Process
The Departments further amend 8
CFR 208.30, 8 CFR 1208.30, and 8 CFR
1003.42 to make several additional
technical and substantive amendments
regarding fear interviews,
determinations, and reviews of
determinations. The Departments
amend 8 CFR 208.30(a) and 8 CFR
1208.30(a) to clearly state that the
respective sections describe the
exclusive procedures applicable to
applicants for admission who are found
inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act, 8
U.S.C. 1182(a)(6)(C) or 1182(a)(7), and
receive ‘‘credible fear’’ interviews,
determinations, and reviews under
section 235(b)(1)(B) of the Act, 8 U.S.C.
1225(b)(1)(B).
DHS is clarifying the existing
‘‘credible fear’’ screening process in 8
CFR 208.30(b), which states that if an
alien subject to expedited removal
indicates an intention to apply for
asylum or expresses a fear of
persecution or torture, or a fear of
return, an inspecting officer shall not
proceed further with removal until the
alien has been referred for an interview
with an asylum officer, as provided in
section 235(b)(1)(A)(ii) of the Act, 8
U.S.C. 1225(b)(1)(A)(ii). The rule also
states that the asylum officer would
screen the alien for a credible fear of
persecution and, as appropriate, a
reasonable possibility of persecution
and a reasonable possibility of torture,
and conduct an evaluation and
determination in accordance with 8 CFR
208.9(c), which is consistent with
current policy and practice. These
proposals aim to provide greater
transparency and clarity with regard to
fear screenings.
DHS is also including consideration
of internal relocation in the context of
8 CFR 208.30(e)(1)–(3), which outline
the procedures for determining whether
aliens have a credible fear of
persecution, a reasonable possibility of
persecution, and a reasonable
possibility of torture. Considering
internal relocation in the ‘‘credible fear’’
screening context is consistent with
existing policy and practice, and the
regulations addressing internal
relocation at 8 CFR 208.16(c)(3)(ii) and
8 CFR 1208.16(c)(3)(ii) (protection
under the CAT regulations); 8 CFR
208.13(b)(1)(i)(B) and 8 CFR
1208.13(b)(1)(i)(B) (asylum); and 8 CFR
208.16(b)(1)(i)(B) and 8 CFR
1208.16(b)(1)(i)(B) (statutory
withholding). The regulatory standard
that governs consideration of internal
relocation in the context of asylum and
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statutory withholding of removal
adjudications is different from the
standard that considers internal
relocation in the context of protection
under the CAT regulations. See
generally Maldonado v. Lynch, 786 F.3d
1155, 1163 (9th Cir. 2015) (noting the
marked difference between the asylum
and CAT regulations concerning
internal relocation).
In addition, the Departments are
adding asylum and statutory
withholding eligibility bar
considerations in 8 CFR 208.30(e)(1)(iii)
and (e)(2)(iii), and 8 CFR 1003.42(d).
Currently, 8 CFR 208.30(e)(5)(i)
provides that if an alien, other than a
stowaway, is able to establish a credible
fear of persecution or torture but also
appears to be subject to one or more of
the mandatory eligibility bars to asylum
or statutory withholding of removal,
then the alien will be placed in section
240 proceedings. The Departments are
amending 8 CFR 208.30 to apply
mandatory bars to applying for or being
granted asylum at the credible fear
screening stage for aliens in expedited
removal proceedings and for stowaways,
such that if a mandatory bar to applying
for or being granted asylum applies, the
alien would be unable to show a
significant possibility of establishing
eligibility for asylum. In 8 CFR
208.30(e)(5), DHS requires asylum
officers to determine (1) whether an
alien is subject to one or more of the
mandatory bars to being able to apply
for asylum under section 208(a)(2)(B)–
(D) of the Act, 8 U.S.C. 1158(a)(2)(B)–
(D), or the bars to asylum eligibility
under section 208(b)(2) of the Act, 8
U.S.C. 1158(b)(2), including any
eligibility bars established by regulation
under section 208(b)(2)(C) of the Act, 8
U.S.C. 1158(b)(2)(C); and (2) if so,
whether the bar at issue is also a bar to
statutory withholding of removal and
withholding of removal under the CAT
regulations. If a mandatory bar to
asylum applies, the alien will then be
screened only for statutory withholding
of removal or withholding or deferral of
removal under the CAT regulations. If
the alien is subject to a mandatory bar
to asylum that is also a mandatory bar
to statutory withholding of removal,
then the alien will be screened only for
deferral of removal under the CAT
regulations. An alien who could
establish a credible fear of persecution
or reasonable possibility of persecution
but for the fact that he or she is subject
to one of the bars that applies to both
asylum and statutory withholding of
removal would receive a negative fear
determination, unless the alien could
establish a reasonable possibility of
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torture, in which case he or she would
be referred to the immigration court for
asylum-and-withholding-only
proceedings. In those proceedings, the
alien would have the opportunity to
raise whether he or she was correctly
identified as being subject to the bar(s)
to asylum and withholding of removal
and also pursue protection under the
CAT regulations.
Additionally, under 8 CFR
208.30(e)(5), DHS has used a
‘‘reasonable fear’’ standard (identical to
the ‘‘reasonable possibility’’ standard
enunciated in this rule) in procedures
related to aliens barred from asylum
under two interim final rules issued by
the Departments,5 as described in 8 CFR
5 On July 16, 2019, the Departments issued an
interim final rule providing that certain aliens
described in 8 CFR 208.13(c)(4) or 1208.13(c)(4)
who enter, attempt to enter, or arrive in the United
States across the southern land border on or after
such date, after transiting through at least one
country outside the alien’s country of citizenship,
nationality, or last lawful habitual residence en
route to the United States, will be found ineligible
for asylum (and, because they are subject to this bar,
not be able to establish a credible fear of
persecution) unless they qualify for certain
exceptions. See Asylum Eligibility and Procedural
Modifications, 84 FR 33829 (July 16, 2019). On July
24, 2019, the U.S. District Court for the Northern
District of California enjoined the Departments
‘‘from taking any action continuing to implement
the Rule’’ and ordered the Departments ‘‘to return
to the pre-Rule practices for processing asylum
applications.’’ E. Bay Sanctuary Covenant v. Barr,
385 F. Supp. 3d 922, 960 (N.D. Cal. 2019). On
August 16, 2019, the U.S. Court of Appeals for the
Ninth Circuit issued a partial stay of the
preliminary injunction so that the injunction
remained in force only in the Ninth Circuit. E. Bay
Sanctuary Covenant v. Barr, 934 F.3d 1026, 1028
(9th Cir. 2019). On September 9, 2019, the district
court then reinstated the nationwide scope of the
injunction. E. Bay Sanctuary Covenant v. Barr, 391
F. Supp. 3d 974 (N.D. Cal. 2019). Two days later,
the Supreme Court stayed the district court’s
injunction. Barr v. East Bay Sanctuary Covenant,
140 S. Ct. 3 (2019). On July 6, 2020, the Ninth
Circuit affirmed the district court’s injunction. E.
Bay Sanctuary Covenant v. Barr, 964 F.3d 832 (9th
Cir. 2020). Additionally, on June 30, 2020, the
interim final rule was vacated by the D.C. District
Court in Capital Area Immigrants’ Rights (‘‘CAIR’’)
Coalition, et al. v. Trump, 19–cv–02117 (D.D.C.
2020) and I.A., et al. v. Barr, 19–cv–2530 (D.D.C.
2020).
On November 9, 2018, the Departments issued an
interim final rule providing that certain aliens
described in 8 CFR 208.13(c)(3) or 8 CFR
1208.13(c)(3) who entered the United States in
contravention of a covered Presidential
proclamation or order are barred from eligibility for
asylum. See Aliens Subject to a Bar on Entry Under
Certain Presidential Proclamations; Procedures for
Protection Claims, 83 FR 55934 (Nov. 9, 2018). On
December 19, 2018, the U.S. District Court for the
Northern District of California enjoined the
Departments ‘‘from taking any action continuing to
implement the Rule’’ and ordered the Departments
‘‘to return to the pre-Rule practices for processing
asylum applications.’’ E. Bay Sanctuary Covenant v.
Trump, 354 F. Supp. 3d 1094, 1121 (N.D. Cal.
2018). On February 28, 2020, the U.S. Court of
Appeals for the Ninth Circuit affirmed the
injunction. E. Bay Sanctuary Covenant v. Trump,
950 F.3d 1242, 1284 (9th Cir. 2020). The
Departments in this rule do not make any
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208.13(c)(3)–(4). The Departments
include technical edits in 8 CFR
208.30(e)(5), to change ‘‘reasonable fear’’
to ‘‘reasonable possibility’’ to align the
terminology with the other proposed
changes in this rule. Similarly, DOJ
makes technical edits in 8 CFR
1208.30(g)(1) and 8 CFR 1003.42(d)—
both of which refer to the ‘‘reasonable
fear’’ standard in the current version of
8 CFR 208.30(e)(5)—to change the
‘‘reasonable fear’’ language to
‘‘reasonable possibility.’’ These edits are
purely technical and would not amend,
alter, or impact the standard of proof
applicable to the fear screening process
and determinations, or review of such
determinations, associated with the
aforementioned bars.
Additionally, in 8 CFR 208.2(c)(1), 8
CFR 1208.2(c)(1), 8 CFR 235.6(a)(2), and
8 CFR 1235.6(a)(2), the Departments
include technical edits to replace the
term ‘‘credible fear of persecution or
torture’’ with ‘‘a credible fear of
persecution, reasonable possibility of
persecution, or reasonable possibility of
torture’’ to mirror the terminology used
in proposed 8 CFR 208.30 and 8 CFR
1208.30. Moreover, in 8 CFR
1208.30(g)(2)(iv)(C), DOJ makes a
technical edit to clarify that stowaways
barred from asylum and both statutory
and CAT withholding of removal may
still be eligible for deferral of removal
under the CAT regulations.
The Departments further amend 8
CFR 208.30(g) and 8 CFR 1208.30(g)(2),
which address procedures for negative
fear determinations for aliens in the
expedited removal process. In 8 CFR
208.30(g)(1), the Departments treat an
alien’s refusal to indicate whether he or
she desires review by an immigration
judge as declining to request such
review. Also, in 8 CFR 208.31, the
Departments treat a refusal as declining
to request review within the context of
reasonable fear determinations.
In comparison to the NPRM, this final
rule adds the word ‘‘for’’ to correct the
form name to ‘‘Application for Asylum
and for Withholding of Removal’’ at 8
CFR 208.31(g)(2) and 1208.31(g)(2). This
final rule also reinserts language
concerning novel or unique issues in 8
CFR 208.30(e)(4) that was inadvertently
proposed to be removed in the NPRM,
with modifications to account for
changes in terminology adopted via this
final rule. The language now reads: ‘‘In
determining whether the alien has a
credible fear of persecution, as defined
in section 235(b)(1)(B)(v) of the Act, or
a reasonable possibility of persecution
or torture, the asylum officer shall
amendments that would implement the rules at
issue in the aforementioned cases.
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consider whether the alien’s case
presents novel or unique issues that
merit consideration in a full hearing
before an immigration judge.’’ Also, this
final rule removes one sentence from
the proposed 8 CFR 208.30(e)(4)—‘‘An
asylum officer’s determination will not
become final until reviewed by a
supervisory asylum officer’’—because
similar text already exists in 8 CFR
208.30(e)(8) and it would be repetitive
to include it in 8 CFR 208.30(e)(4).
2. Amendments Related to the Filing
Requirements and Elements for
Consideration of Form I–589,
Application for Asylum and for
Withholding of Removal
2.1. Frivolous Applications
The Departments amend both 8 CFR
208.20 and 1208.20 regarding
determinations that an asylum
application is frivolous. See INA
208(d)(6), 8 U.S.C. 1158(d)(6) (providing
that an alien found to have ‘‘knowingly
made a frivolous application for
asylum’’ is ‘‘permanently ineligible for
any benefits’’ under the Act). The
Departments propose the new standards
in order to ensure that manifestly
unfounded or otherwise abusive claims
are rooted out and to ensure that
meritorious claims are adjudicated more
efficiently so that deserving applicants
receive benefits in a timely fashion.
The Departments clarify the meaning
of ‘‘knowingly’’ by providing that
‘‘knowingly’’ requires either actual
knowledge of the frivolousness or
willful blindness toward it. 8 CFR
208.20(a)(2), 1208.20(a)(2). The
Departments also amend the definition
of ‘‘frivolous.’’ 8 CFR 208.20,
208.20(c)(1)–(4), 1208.20, 1208.20(c)(1)–
(4). Under the new definition, if
knowingly made, an asylum application
would be properly considered frivolous
if the adjudicator were to determine that
it included a fabricated material
element; that it was premised on false
or fabricated evidence; that it was filed
without regard to the merits of the
claim; or that it was clearly foreclosed
by applicable law. The definition aligns
with the Departments’ prior
understandings of frivolous
applications, including applications that
are clearly unfounded, abusive, or
involve fraud, and the Departments
believe the definition would better
effectuate the intent of section 208(d)(6)
of the Act, 8 U.S.C. 1158(d)(6), to
discourage applications that make
patently meritless or false claims.
In addition, the Departments allow
asylum officers adjudicating affirmative
asylum applications to make findings
that aliens have knowingly filed
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80279
frivolous asylum applications and to
refer the cases on that basis to
immigration judges (for aliens not in
lawful status) or to deny the
applications (for aliens in lawful status).
8 CFR 208.20(b), 1208.20(b). For an
alien not in lawful status, a finding by
an asylum officer that an asylum
application is frivolous would not
render an alien permanently ineligible
for immigration benefits unless an
immigration judge or the BIA
subsequently makes a finding of
frivolousness upon de novo review of
the application. Asylum officers would
apply the same definition used by
immigration judges and the BIA under
this rule. Id. This change would allow
U.S. Citizenship and Immigration
Services (‘‘USCIS’’) to more efficiently
root out frivolous applications, deter
frivolous filings, and reduce the number
of frivolous applications in the asylum
system. Additionally, an asylum officer
who makes a finding of frivolousness
would produce a record on that issue for
an immigration judge to review. Further,
the proposed change is consistent with
congressional intent to ‘‘reduce the
likelihood that fraudulent or frivolous
applications will enable deportable or
excludable aliens to remain in the U.S.
for substantial periods.’’ S. Rep. No.
104–249, at 2 (1996).
The Departments clarify that, as long
as the alien has been given the notice of
the consequences of filing a frivolous
application, as required by section
208(d)(4)(A) of the Act, 8 U.S.C.
1158(d)(4)(A), the adjudicator need not
give the alien any additional or further
opportunity to account for any issues
prior to the entry of a frivolousness
finding. 8 CFR 208.20(d), 1208.20(d).
The Departments have determined that
this provision is sufficient to comply
with the Act’s requirements, and that
there is no legal or operational
justification for providing additional
opportunities to address aspects of a
claim that may warrant a frivolousness
finding. The Departments believe the
current regulatory framework, which
provides that an EOIR adjudicator may
only make a frivolous finding if he or
she ‘‘is satisfied that the applicant,
during the course of the proceedings,
has had sufficient opportunity to
account for any discrepancies or
implausible aspects of the claim,’’ has
not successfully achieved the
Departments’ goal of preventing
knowingly frivolous applications that
delay the adjudication of other asylum
applications that may merit relief.
As this rule would overrule Matter of
Y–L–, 24 I&N Dec. 151 (BIA 2007), and
revise the definition of ‘‘frivolous,’’
adjudicators would not be required to
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provide opportunities for applicants to
address discrepancies or implausible
aspects of their claims if an applicant
had been provided the warning required
by INA 208(d)(4)(A) (8 U.S.C.
1158(d)(4)(A)).
In order to ameliorate the
consequences of knowingly filing a
frivolous application in appropriate
cases, however, the Departments
include a mechanism that would allow
certain aliens in removal proceedings to
withdraw, with prejudice, their
applications by disclaiming the
applications; accepting an order of
voluntary departure for a period of no
more than 30 days; withdrawing, also
with prejudice, all other applications for
relief or protection; and waiving any
rights to file an appeal, motion to
reopen, and motion to reconsider. 8 CFR
208.20(f), 1208.20(f). In such instances,
the aliens would not be subject to a
frivolousness finding and could avoid
the penalties associated with such a
finding. In addition, the regulation does
not change current regulatory language
that makes clear that a frivolousness
finding does not bar an alien from
seeking statutory withholding of
removal or protection under the CAT
regulations. Finally, the Departments
clarify that an application may be found
frivolous even if the application was
untimely. 8 CFR 208.20(e), 1208.20(e).
In comparison to the NPRM, this final
rule updates the frivolousness language
in 8 CFR 208.20 and 8 CFR 1208.20 to
further clarify that the new
frivolousness standards only apply
prospectively to applications filed on or
after the effective date of this final rule.
This final rule also replaces the word
‘‘essential’’ with the word ‘‘material’’ in
8 CFR 208.20(c)(1) and 1208.20(c)(1),
consistent with the stated intent of the
NPRM. Finally, to avoid confusion and
potential conflict between the proposed
language of 8 CFR 208.20(b) and
1208.20(b) and 8 CFR 208.20(d) and
1208.20(d), this final rule deletes the
following sentence from proposed 8
CFR 208.20(b) and 1208.20(b): ‘‘Such
finding will only be made if the asylum
officer is satisfied that the applicant has
had sufficient opportunity to account
for any discrepancies or implausible
aspects of the claim.’’
2.2. Pretermission of Applications
DOJ adds a new paragraph (e) to 8
CFR 1208.13 to clarify that immigration
judges may pretermit and deny an
application for asylum, statutory
withholding of removal, or protection
under the CAT regulations if the alien
has not established a prima facie claim
for relief or protection under the
applicable laws and regulations. See
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Matter of E–F–H–L–, 27 I&N Dec. 226
(A.G. 2018); see also Matter of A–B–, 27
I&N Dec. 316, 340 (A.G. 2018) (‘‘Of
course, if an alien’s asylum application
is fatally flawed in one respect—for
example, for failure to show
membership in a proposed social group
* * *—an immigration judge or the
Board need not examine the remaining
elements of the asylum claim.’’). Other
immigration applications are subject to
pretermission when legally insufficient,
and the INA and current regulations do
not require asylum to be treated any
differently. Such a decision would be
based on the Form I–589 application
itself and any supporting evidence.
Under this rule, an immigration judge
may pretermit an asylum application in
two circumstances: (1) Following an
oral or written motion by DHS, and (2)
sua sponte upon the immigration
judge’s own authority. Provided the
alien has had an opportunity to
respond, and the immigration judge
considers any such response, a hearing
would not be required for the
immigration judge to make a decision to
pretermit and deny the application. In
the case of the immigration judge’s
exercise of his or her own authority,
parties would have at least ten days’
notice before the immigration judge
would enter such an order. A similar
timeframe would apply if DHS moves to
pretermit, under current practice. See
EOIR, Immigration Court Practice
Manual at D–1 (Aug. 2, 2018), https://
www.justice.gov/eoir/page/file/1084851/
download.
2.3. Particular Social Group
The Departments adopt amendments
to codify long-standing standards from
case law regarding the cognizability of
particular social groups and to provide
clarity, allow for uniform application,
and reduce the time necessary to
evaluate claims involving particular
social groups. These requirements
would aid efficient litigation and avoid
gamesmanship and piecemeal litigation.
Specifically, the Departments codify
the requirements that (1) a particular
social group must be (a) composed of
members who share a common
immutable characteristic, (b) defined
with particularity, and (c) socially
distinct in the society in question; (2)
the group must exist independently of
the alleged persecutory acts; and (3) the
group must not be defined exclusively
by the alleged harm. 8 CFR 208.1(c),
1208.1(c). Additionally, the
Departments list nine, non-exhaustive
circumstances that, if a particular social
group consisted of or was defined by,
would not generally result in a favorable
adjudication. Id. Further, the
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Departments adopt several procedural
requirements regarding the alien’s
responsibility to define the particular
social group. Id.
In comparison to the NPRM, this final
rule amends the waiver provision in 8
CFR 208.1(c) and 1208.1(c) related to
claims of ineffective assistance of
counsel based on a failure to define, or
provide a basis for defining, a
formulation of a particular social group
before an immigration judge to provide
an exception for egregious conduct on
the part of counsel. The Departments
believe that cognizable ineffective
assistance of counsel claims in the
context of failing to assert a particular
social group should be extremely rare.
Nevertheless, the Departments recognize
there may be unique situations in which
‘‘egregious conduct’’ on the part of
counsel may warrant reopening in this
context, provided that appropriate
procedural requirements for such a
claim are observed.
2.4. Political Opinion
The Departments adopt amendments
to define ‘‘political opinion’’ and
provide other guidance for adjudicators
regarding applications for asylum or
statutory withholding of removal
premised on the applicant’s political
opinion. These amendments would
provide additional clarity for
adjudicators and better align the
regulations with statutory requirements
and general understanding that a
political opinion is intended to advance
or further a discrete cause related to
political control of the state.
Specifically, the Departments define
‘‘political opinion’’ for the purposes of
applications for asylum or for statutory
withholding of removal as an opinion
expressed by or imputed to an applicant
in which the applicant possesses an
ideal or conviction in support of the
furtherance of a discrete cause related to
political control of a state or a unit
thereof. 8 CFR 208.1(d), 1208.1(d).
Additionally, the Departments adopt a
list of potential definitional bases for a
political opinion that would not, in
general, support a favorable
adjudication: A political opinion
defined solely by generalized
disapproval of, disagreement with, or
opposition to criminal, terrorist, gang,
guerilla, or other non-state organizations
absent expressive behavior in
furtherance of a cause against such
organizations related to efforts by the
state to control such organizations or
behavior that is antithetical to or
otherwise opposes the ruling legal entity
of the state or a legal sub-unit of the
state. Id. Finally, consistent with section
101(a)(42) of the Act, 8 U.S.C.
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1101(a)(42), the Departments provide
that a person who has been forced to
abort a pregnancy or to undergo
involuntary sterilization, or who has
been persecuted for failure or refusal to
undergo such a procedure or for other
resistance to a coercive population
control program, would be deemed to
have been persecuted on account of
political opinion, and a person who has
a well-founded fear that he or she will
be forced to undergo such a procedure
or be subject to persecution for such
failure, refusal, or resistance would be
deemed to have a well-founded fear of
persecution on account of political
opinion. Id.
2.5. Persecution Definition
Given the wide range of cases
interpreting ‘‘persecution’’ for the
purposes of the asylum laws, the
Departments are adding a new
paragraph to 8 CFR 208.1 and 1208.1 to
define ‘‘persecution’’ and to better
clarify what does and does not
constitute persecution given the extreme
and severe nature of harm required. The
Departments believe that these changes
would better align the relevant
regulations with the high standard
Congress intended for the term
‘‘persecution.’’ See Fatin v. INS, 12 F.3d
1233, 1240 n.10, 1243 (3d Cir. 1993).
Specifically, this rule provides that
persecution requires ‘‘an intent to target
a belief or characteristic, a severe level
of harm, and the infliction of a severe
level of harm by the government of a
country or by persons or an organization
that the government was unable or
unwilling to control.’’ 8 CFR 208.1(e),
1208.1(e). The Departments further
clarify that persecution does not
include, for example: (1) Every instance
of harm that arises generally out of civil,
criminal, or military strife in a country;
(2) any and all treatment that the United
States regards as unfair, offensive,
unjust, or even unlawful or
unconstitutional; (3) intermittent
harassment, including brief detentions;
(4) threats with no actions taken to carry
out the threats; (5) non-severe economic
harm or property damage; or (6)
government laws or policies that are
infrequently enforced, unless there is
credible evidence that those laws or
policies have been or likely would be
applied to an applicant personally. See
id.
In comparison to the NPRM, this final
rule amends the language in 8 CFR
208.1(e) and 1208.1(e) regarding when
threats alone may constitute persecution
to clarify that particularized threats of
severe harm of an immediate and
menacing nature made by an identified
entity may constitute persecution. The
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Departments expect that such cases will
be rare. See, e.g., Duran-Rodriguez v.
Barr, 918 F.3d at 1028 (explaining that
‘‘death threats alone can constitute
persecution’’ but ‘‘constitute
persecution in only a small category of
cases, and only when the threats are so
menacing as to cause significant actual
suffering or harm’’ (quotation marks and
citation omitted)).
2.6. Nexus
The Departments add paragraph (f) to
both 8 CFR 208.1 and 1208.1 to provide
clearer guidance on situations in which
alleged acts of persecution would not be
on account of one of the five protected
grounds. This proposal would further
the expeditious consideration of asylum
and statutory withholding claims by
bringing clarity and uniformity to this
issue.
Specifically, the Departments are
adopting the following eight nonexhaustive circumstances, each of
which is rooted in case law, that would
not generally support a favorable
adjudication of an application for
asylum or statutory withholding of
removal due to the applicant’s inability
to demonstrate persecution on account
of a protected ground: (1) Interpersonal
animus or retribution; (2) interpersonal
animus in which the alleged persecutor
has not targeted, or manifested an
animus against, other members of an
alleged particular social group in
addition to the member who has raised
the claim at issue; (3) generalized
disapproval of, disagreement with, or
opposition to criminal, terrorist, gang,
guerilla, or other non-state organizations
absent expressive behavior in
furtherance of a discrete cause against
such organizations related to control of
a state or expressive behavior that is
antithetical to the state or a legal unit of
the state; (4) resistance to recruitment or
coercion by guerilla, criminal, gang,
terrorist, or other non-state
organizations; (5) the targeting of the
applicant for criminal activity for
financial gain based on wealth or
affluence or perceptions of wealth or
affluence; (6) criminal activity; (7)
perceived, past or present, gang
affiliation; and (8) gender. 8 CFR
208.1(f)(1)–(8), 1208.1(f)(1)–(8). At the
same time, the regulation would not
foreclose that, at least in rare cases, such
circumstances could be the basis for
finding nexus, given the fact-specific
nature of this determination.
2.7. Stereotype Evidence
In order to make clear that pernicious
cultural stereotypes have no place in the
adjudication of applications for asylum
and statutory withholding of removal,
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regardless of the basis of the claim, the
Departments bar consideration of
evidence promoting cultural stereotypes
of countries or individuals, including
stereotypes related to race, religion,
nationality, and gender, to the extent
those stereotypes are offered in support
of an alien’s claim. 8 CFR 208.1(g),
1208.1(g).
In comparison to the NPRM, the final
rule clarifies the language in 8 CFR
208.1(g) and 1208.1(g) to alleviate
apparent confusion and improve
consistency with the intent of the NPRM
regarding the use of stereotypes as an
evidentiary basis for an asylum claim. In
the final rule, bald statements that a
country or its denizens have a particular
cultural trait that causes citizens,
nationals, or residents of that country to
engage in persecution is evidence
lacking in probative value and has no
place in an adjudication.
2.8. Internal Relocation
The Departments are adopting
amendments to 8 CFR 208.13(b)(3),
208.16(b)(3), 1208.13(b)(3), and
1208.16(b)(3) regarding the
reasonableness of internal relocation
because the Departments determined
that the current regulations
inadequately assess the relevant
considerations in determining whether
internal relocation is possible, and if
possible, whether it is reasonable to
expect the asylum applicant to relocate.
The Departments adopt a more
streamlined presentation in the
regulations of the most relevant factors
for adjudicators to consider in
determining whether internal relocation
is a reasonable option. This clarification
would assist adjudicators in making
more efficient adjudications and would
bring the regulatory burdens of proof in
line with baseline assessments of
whether types of persecution generally
occur nationwide.
Specifically, the Departments amend
the general guidelines regarding
determinations of the reasonableness of
internal relocation to specify that
adjudicators should consider the totality
of the circumstances. 8 CFR
208.13(b)(3), 1208.13(b)(3). In addition,
the Departments amend the list of
considerations for adjudicators
including, inter alia, an instruction that
adjudicators consider ‘‘the applicant’s
demonstrated ability to relocate to the
United States in order to apply for
asylum.’’ Id. The Departments also
adopt a presumption that for
applications in which the persecutor is
not a government or governmentsponsored actor, internal relocation
would be reasonable unless the
applicant demonstrates by a
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preponderance of the evidence that it
would not be. 8 CFR 208.13(b)(3)(iii),
1208.13(b)(3)(iii). This presumption
would apply regardless of whether an
applicant has established past
persecution. For ease of administering
these provisions, the Departments also
provide examples of the types of
individuals or entities who are private
actors. 8 CFR 208.13(b)(3)(iv),
1208.13(b)(3)(iv).6
2.9. Discretionary Factors
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Asylum is a discretionary form of
relief, and the Departments provide
general guidelines on factors for
adjudicators to consider when
determining whether or not an alien
merits the relief of asylum as a matter
of discretion. 8 CFR 208.13(d),
1208.13(d). Specifically, the
Departments provide three factors that
adjudicators must consider when
determining whether an applicant
merits the relief of asylum as a matter
of discretion: (1) An alien’s unlawful
entry or unlawful attempted entry into
the United States unless such entry or
attempted entry was made in immediate
flight from persecution or torture in a
contiguous country; (2) subject to
certain exceptions, the failure of an
alien to seek asylum or refugee
protection in at least one country
through which the alien transited before
entering the United States; and (3) an
alien’s use of fraudulent documents to
enter the United States, unless the alien
arrived in the United States by air, sea,
or land directly from the applicant’s
home country without transiting
through any other country. 8 CFR
208.13(d)(1), 1208.13(d)(1). The
adjudicator must consider all three
factors, if relevant, during every asylum
adjudication. If one or more of these
factors were found to apply to the
applicant’s case, the adjudicator would
consider such factors to be significantly
adverse for purposes of the
discretionary determination, though the
adjudicator should also consider any
other relevant facts and circumstances
to determine whether the applicant
merits asylum as a matter of discretion.
In addition, the Departments provide
nine additional adverse factors that, if
applicable, would ordinarily result in
the denial of asylum as a matter of
discretion. 8 CFR 208.13(d)(2)(i),
6 Because the issue of internal relocation arises in
the context of applications for both asylum and
statutory withholding of removal, the Departments
are amending the relevant regulations related to
applications for statutory withholding of removal
for the same reasons discussed herein they are
amending the regulations related to asylum
applications. See 8 CFR 208.16(b)(3) and
1208.16(b)(3).
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1208.13(d)(2)(i). Specifically, the
Departments list the following factors
for the adjudicator to consider: (1)
Whether an alien has spent more than
14 days in any one country that
permitted application for refugee,
asylee, or similar protections prior to
entering or arriving in the United States,
8 CFR 208.13(d)(2)(i)(A),
1208.13(d)(2)(i)(A); 7 (2) whether the
alien transited through more than one
country prior to arrival in the United
States, 8 CFR 208.13(d)(2)(i)(B),
1208.13(d)(2)(i)(B); 8 (3) whether the
applicant would be subject to a
mandatory asylum application denial
under 8 CFR 208.13(c), 1208.13(c) but
for the reversal, vacatur, expungement,
or modification of a conviction or
sentence unless the alien was found not
guilty, 8 CFR 208.13(d)(2)(i)(C)
1208.13(d)(2)(i)(C); (4) whether the
applicant has accrued more than one
year of unlawful presence in the United
States prior to filing an application for
asylum, 8 CFR 208.13(d)(2)(i)(D),
1208.13(d)(2)(i)(D); (5) whether the
applicant, at the time he or she filed the
asylum application, had failed to timely
file or to timely file an extension request
of any required Federal, state, or local
tax returns; failed to satisfy any
outstanding Federal, state, or local tax
obligations; or has income that would
generate tax liability but that has not
been reported to the Internal Revenue
Service, 8 CFR 208.13(d)(2)(i)(E),
1208.13(d)(2)(i)(E); (6) whether the
applicant has had two or more prior
asylum applications denied for any
reason, 8 CFR 208.13(d)(2)(i)(F),
1208.13(d)(2)(i)(F); (7) whether the
applicant has previously withdrawn an
asylum application with prejudice or
been found to have abandoned an
asylum application, 8 CFR
208.13(d)(2)(i)(G), 1208.13(d)(2)(i)(G);
(8) whether the applicant previously
failed to attend an interview with DHS
regarding his or her application, 8 CFR
208.13(d)(2)(i)(H), 1208.13(d)(2)(i)(H); 9
7 The Departments, however, provided exceptions
for aliens who demonstrate that (1) they applied for
and were denied protection in such country, (2)
they are a trafficking victim as set out as 8 CFR
214.11, or (3) such country was at the time the alien
transited not a party to the 1951 Convention
relating to the Status of Refugees, the 1967 Protocol
relating to the Status of Refugees, or the Convention
against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. 8 CFR
208.13(d)(2)(i)(A)(1)–(3), 1208.13(d)(2)(i)(A)(1)–(3).
8 The Departments, however, provided the same
exceptions described above. See 8 CFR
208.13(d)(2)(i)(B)(1)–(3), 1208.13(d)(2)(i)(B)(1)–(3).
9 The Departments included exceptions if the
alien shows by the preponderance of the evidence
that either exceptional circumstances prevented the
alien from attending the interview or that the
interview notice was not mailed to the last address
provided by the alien or the alien’s representative
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and (9) whether the applicant was
subject to a final order of removal,
deportation, or exclusion and did not
file a motion to reopen within one year
of the change in country conditions, 8
CFR 208.13(d)(2)(i)(I),
1208.13(d)(2)(i)(I); see also INA
240(c)(7)(C)(ii), 8 U.S.C.
1229a(c)(7)(C)(ii); 8 CFR 1003.2(c)(3)(ii),
1003.23(b)(4)(i).
This rule provides that if the
adjudicator were to determine that any
of these nine circumstances applied
during the course of the discretionary
review, the adjudicator may
nevertheless favorably exercise
discretion in extraordinary
circumstances, such as those involving
national security or foreign policy
considerations, or if the alien
demonstrates, by clear and convincing
evidence, that the denial or referral of
asylum would result in an exceptional
and extremely unusual hardship to the
alien. 8 CFR 208.13(d)(2)(ii),
1208.13(d)(2)(ii).
In comparison to the NPRM, this final
rule adds the clarifying phrase ‘‘as
defined in section 212(a)(9)(B)(ii) and
(iii) of the Act’’ to 8 CFR
208.13(d)(2)(i)(D) and
1208.13(d)(2)(i)(D) consistent with the
intent of the NPRM. In addition, this
final rule amends 8 CFR 208.13(d)(1)(i)
and 1208.13(d)(1)(i) to reflect that an
unlawful or attempted unlawful entry
into the United States by an alien under
the age of 18 will not be considered as
a significant adverse discretionary factor
in considering a subsequent asylum
application filed by such an alien.
Further, the final rule amends 8 CFR
208.13(d)(2)(ii) to reflect that,
operationally, DHS may refer or deny an
asylum application, depending on the
circumstances of the applicant. See 8
CFR 208.14.
2.10. Firm Resettlement
Due to the increased availability of
resettlement opportunities and the
interest of those genuinely in fear of
persecution in attaining safety as soon
as possible, the Departments revise the
definition of firm resettlement that
applies to asylum adjudications at 8
CFR 208.15 and 1208.15.10 These
and neither the alien nor the alien’s representative
received notice of the interview. 8 CFR
208.13(d)(2)(i)(H)(1)–(2), 1208.13(d)(2)(i)(H)(1)–(2).
10 As the Departments noted in the proposed rule,
85 FR at 36286 n.41, 43 countries have signed the
Refugee Convention since 1990. In particular,
resettlement opportunities in Mexico, one of the
most common transit countries for aliens coming to
the United States, have increased significantly in
recent years. For example, the UNHCR has
documented a notable increase in asylum and
refugee claims filed in Mexico—even during the
ongoing COVID–19 pandemic—which strongly
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changes recognize the increased
availability of resettlement
opportunities and that an alien fleeing
persecution would ordinarily be
expected to seek refuge at the first
available opportunity where there is no
fear of persecution or torture. Further,
the changes would ensure that the
asylum system is used by those in need
of immediate protection rather than
those who chose the United States as
their destination for other reasons and
suggests that Mexico is an appropriate option for
seeking refuge for those genuinely fleeing
persecution. See, e.g., Shabia Mantoo, Despite
pandemic restrictions, people fleeing violence and
persecution continue to seek asylum in Mexico,
U.N. High Commissioner for Refugees (Apr. 28,
2020), https://www.unhcr.org/en-us/news/briefing/
2020/4/5ea7dc144/despite-pandemic-restrictionspeople-fleeing-violence-persecution-continue.html
(‘‘While a number of countries throughout Latin
America and the rest of the world have closed their
borders and restricted movement to contain the
spread of coronavirus, Mexico has continued to
register new asylum claims from people fleeing
brutal violence and persecution, helping them find
safety.’’). Asylum and refugee claims filed in
Mexico increased 33 percent in the first three
months of 2020 compared to the same period in
2019, averaging almost 6000 per month. Id. Asylum
claims filed in Mexico rose by more than 103
percent in 2018 compared to the previous year.
U.N. High Commissioner for Refugees, Fact Sheet
(Apr. 2019), https://reporting.unhcr.org/sites/
default/files/UNHCR%20Factsheet%20Mexico%20%20April%202019.pdf. Overall, ‘‘[a]sylum requests
have doubled in Mexico each year since 2015.’’
Congressional Research Serv., Mexico’s Immigration
Control Efforts (Feb. 19, 2020), https://fas.org/sgp/
crs/row/IF10215.pdf. Moreover, some private
organizations acknowledge that asylum claims in
Mexico have recently ‘‘skyrocket[ed],’’ that ‘‘Mexico
has adopted a broader refugee definition than the
U.S. and grants a higher percentage of asylum
applications,’’ and that ‘‘Mexico may offer better
options for certain refugees who cannot find
international protection in the U.S.,’’ including for
those ‘‘who are deciding where to seek asylum [i.e.
between Mexico and the United States].’’ Asylum
Access, Mexican Asylum System for U.S.
Immigration Lawyers FAQ (Nov. 2019), https://
asylumaccess.org/wp-content/uploads/2019/11/
Mexican-Asylum-FAQ-for-US-ImmigrationLawyers.pdf. Moreover, the Mexican Constitution
was amended in 2011 to include the specific right
to asylum and further amended in 2016 to expand
that right. See Mex. Const. Art. 11 (‘‘Every person
has the right to seek and receive asylum.
Recognition of refugee status and the granting of
political asylum will be carried out in accordance
with international treaties. The law will regulate
their origins and exceptions.’’). In fact, the grounds
for seeking and obtaining refugee status under
Mexican law are broader than the grounds under
U.S. law. As in the United States, individuals in
Mexico may seek refugee status as a result of
persecution in their home countries on the basis of
race, religion, nationality, gender, membership in a
social group, or political opinion. Compare 2011
Law for Refugees, Complementary Protection, and
Political Asylum (‘‘LRCPPA’’), Art. 13(I), with INA
208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i). However,
individuals in Mexico may also seek refugee status
based on ‘‘generalized violence’’ and ‘‘massive
violation of human rights.’’ See 2011 LRCPPA, Art.
13(II). In short, resettlement opportunities are
unquestionably greater now than when the
regulatory definition of ‘‘firm resettlement’’ was
first implemented, and those changes warrant
revisions to that definition accordingly.
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then relied on the asylum system to
reach that destination.
Specifically, the Departments identify
three circumstances under which an
alien would be considered firmly
resettled: (1) The alien resided in a
country through which the alien
transited prior to arriving in or entering
the United States and (i) received or was
eligible for any permanent legal
immigration status in that country, (ii)
resided in such a country with any nonpermanent but indefinitely renewable
legal immigration status (including
asylee, refugee, or similar status but
excluding status such as of a tourist), or
(iii) resided in such a country and could
have applied for and obtained any nonpermanent but indefinitely renewable
legal immigration status in that country;
(2) the alien physically resided
voluntarily, and without continuing to
suffer persecution, in any one country
for one year or more after departing his
country of nationality or last habitual
residence and prior to arrival in or entry
into the United States; or (3) (i) the alien
is a citizen of a country other than the
one where the alien alleges a fear of
persecution and the alien was present in
that country prior to arriving in the
United States, or (ii) the alien was a
citizen of a country other than the one
where the alien alleges a fear of
persecution, the alien was present in
that country prior to arriving in the
United States, and the alien renounced
that citizenship prior to or after arriving
in the United States. 8 CFR
208.15(a)(1)–(3), 1208.15(a)(1)–(3).
The Departments further provide that
the issue of whether the firm
resettlement bar applies arises ‘‘when
the evidence of record indicates that the
firm resettlement bar may apply,’’ and
specifically allows both DHS and the
immigration judge to first raise the issue
based on the record evidence. 8 CFR
208.15(b), 1208.15(b). Finally, the
Departments specify that the firm
resettlement of an alien’s parent(s)
would be imputed to the alien if the
resettlement was prior to the alien
turning 18 and the alien resided with
the parents at the time of the firm
resettlement unless the alien could not
have derived any legal immigration
status or any nonpermanent legal
immigration status that was potentially
indefinitely renewable from the parent.
Id.
In comparison to the NPRM, this final
rule analyzes the components of 8 CFR
208.15(a)(1) and 1208.15(a)(1), breaks it
into three subparagraphs, and changes
the syntax, all for easier readability and
to avoid confusion. The changes in the
final rule are stylistic and do not reflect
an intent to make a substantive change
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from the NPRM. This final rule also
changes the temporal language in 8 CFR
208.15(a)(3)(i) and (ii) and
1208.15(a)(3)(i) and (ii) for clarity and
consistency with similar language in 8
CFR 208.15(a)(2) and 1208.15(a)(2). The
changes clarify the relevant temporal
scope to read ‘‘after departing his
country of nationality or last habitual
residence and prior to arrival in or entry
into the United States’’ in lieu of the
language in the NPRM. Finally, as
discussed above, the rule corrects a
related outdated statutory crossreference in 8 CFR 1244.4(b).
2.11. ‘‘Public Officials’’
The Departments are revising 8 CFR
208.18(a)(1), (7) and 1208.18(a)(1), (7) to
provide further guidance for
determining what sorts of officials
constitute ‘‘public officials,’’ including
whether an official such as a police
officer is a public official for the
purposes of the CAT regulations if he or
she acts in violation of official policy or
his or her official status. Specifically, in
comparison to the NPRM, this final rule
strikes the parenthetical phrase ‘‘(‘‘rogue
official’’)’’ in 8 CFR 208.18(a)(1) and
1208.18(a)(1). Relatedly, this final rule
replaces the remaining uses of the
phrase ‘‘rogue official’’ in 8 CFR
208.16(b)(3)(iv), 208.18(a)(1), and
1208.18(a)(1) with the definition,
‘‘public official who is not acting under
color of law.’’ As recently noted by the
Attorney General in Matter of
O–F–A–S–, 28 I&N Dec. 35, 38 (A.G.
2020), ‘‘continued use of the ‘rogue
official’ language by the immigration
courts going forward risks confusion,
not only because it suggests a different
standard from the ‘under color of law’
standard, but also because ‘rogue
official’ has been interpreted to have
multiple meanings.’’
In addition, the Departments clarify
(1) that pain or suffering inflicted by, or
at the instigation of or with the consent
or acquiescence of, a public official is
not torture unless it is done while the
official is acting in his or her official
capacity (i.e., under ‘‘color of law’’) and
(2) that pain or suffering inflicted by, or
at the instigation of or with the consent
or acquiescence of, a public official not
acting under color of law does not
constitute a ‘‘pain or suffering inflicted
by or at the instigation of or with the
consent or acquiescence of a public
official or other person acting in an
official capacity,’’ even if such actions
cause pain and suffering that could rise
to the severity of torture. See 8 CFR
208.18(a)(1), 1208.18(a)(1). This
amendment clarifies that the
requirement that the individual be
acting in an official capacity applies to
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both a ‘‘public official,’’ such as a police
officer, and an ‘‘other person,’’ such as
an individual deputized to act on the
government’s behalf. Id.
The Departments also clarify the
definition of ‘‘acquiescence of a public
official’’ so that, as several courts of
appeals and the BIA have recognized,
‘‘awareness’’—as used in the CAT
‘‘acquiescence’’ definition—requires a
finding of either actual knowledge or
willful blindness. 8 CFR 208.18(a)(7),
1208.18(a)(7). The Departments further
clarify in this rule that, for purposes of
the CAT regulations, ‘‘willful
blindness’’ means that ‘‘the public
official acting in an official capacity or
other person acting in an official
capacity was aware of a high probability
of activity constituting torture and
deliberately avoided learning the truth;
it is not enough that such public official
acting in an official capacity or other
person acting in an official capacity was
mistaken, recklessly disregarded the
truth, or negligently failed to inquire.’’
Id.
Additionally, the Departments clarify
that acquiescence is not established by
prior awareness of the activity alone,
but requires an omission of an act that
the official had a duty to do and was
able to do. 8 CFR 208.18(a)(7),
1208.18(a)(7).
2.12. Information Disclosure
The Departments are making changes
to 8 CFR 208.6 and 8 CFR 1208.6 to
clarify that information may be
disclosed in certain circumstances that
directly relate to the integrity of
immigration proceedings, including
situations in which there is suspected
fraud or improper duplication of
applications or claims. Specifically, the
Departments provide that to the extent
not already specifically permitted, and
without the necessity of seeking the
exercise of the Attorney General’s or
Secretary’s discretion under sections
1208.6(a) and 208.6(a), respectively, the
Government may disclose all relevant
and applicable information in or
pertaining to the application for asylum,
statutory withholding of removal, and
protection under the CAT regulations as
part of a Federal or state investigation,
proceeding, or prosecution; as a defense
to any legal action relating to the alien’s
immigration or custody status; during
an adjudication of the application itself
or an adjudication of any other
application or proceeding arising under
the immigration laws; pursuant to any
state or Federal mandatory reporting
requirement; and to deter, prevent, or
ameliorate the effects of child abuse. 8
CFR 208.6(d)(1)(i)–(iv), 1208.6(d)(1)(i)–
(vi). Finally, the Departments provide
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that nothing in 8 CFR 208.6 or 1208.6
should be construed to prohibit the
disclosure of information in or relating
to an application for asylum, statutory
withholding of removal, and protection
under the CAT regulations among
specified government employees or
where a government employee or
contractor has a ‘‘good faith and
reasonable’’ belief that the disclosure is
necessary to prevent the commission of
a crime, the furtherance of an ongoing
crime, or to ameliorate the effects of a
crime. 8 CFR 208.6(e), 1208.6(e).
The Departments are making
conforming edits to 8 CFR 208.6(a) and
(b) and 8 CFR 1208.6(b) to make clear
that the disclosure provisions of 8 CFR
208.6 and 1208.6 apply to applications
for withholding of removal under the
INA and for protection under the
regulations implementing the CAT, and
not solely to asylum applications. That
point is already clear in 8 CFR 208.6(d)
and 1208.6(d), and the Departments see
no reason not to conform the other
paragraphs in that section for
consistency.
2.13. Severability
Given the numerous and varied
changes proposed in the NPRM, the
Departments are adding severability
provisions in 8 CFR parts 208, 235,
1003, 1208, 1212, and 1235. See 8 CFR
208.25, 235.6(c), 1003.42(i), 1208.25,
1212.13, 1235.6(c). Because the
Departments believe that the provisions
of each part would function sensibly
independent of other provisions, the
Departments make clear that the
provisions are severable so that, if
necessary, the regulations can continue
to function without a stricken provision.
3. Other
In comparison to the NPRM, this final
rule strikes the regulatory text changes
proposed at 103.5 because those
changes were inadvertently included in
the NPRM’s proposed regulatory text.
II. Public Comments on the Proposed
Rule
A. Summary of Public Comments
The comment period for the NPRM
closed on July 15, 2020, with more than
87,000 comments received.
Organizations, including nongovernment organizations, legal
advocacy groups, non-profit
organizations, religious organizations,
unions, congressional committees, and
groups of members of Congress,
submitted 311 comments, and
individual commenters submitted the
rest. Most individual comments
opposed the NPRM.
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Many if not most comments opposing
the NPRM either misstate its contents,
provide no evidence (other than isolated
or distinguishable anecdotes) to support
broad speculative effects, are contrary to
facts or law, or lack an understanding of
relevant immigration law and
procedures. As the vast majority of
comments in opposition fall within one
of these categories, the Departments
offer the following general responses to
them, supplemented by more detailed,
comment-specific responses in Section
II.C of this preamble.
Many comments oppose the NPRM
because they misstate, in hyperbolic
terms, that it ends or destroys the
asylum system or eliminates the
availability of humanitarian protection
in the United States. The NPRM does
nothing of the kind. The availability of
asylum is established by statute, INA
208, 8 U.S.C. 1158, and an NPRM
cannot alter a statute.11 Rather, the
NPRM, consistent with the statutory
authority of the Secretary and the
Attorney General, adds much-needed
guidance on the many critical, yet
undefined, statutory terms related to
asylum applications. Such guidance not
only improves the efficiency of the
system as a whole, but allows
adjudicators to focus resources more
effectively on potentially meritorious
claims rather than on meritless ones. In
short, the NPRM enhances rather than
degrades the asylum system.
Many comments misstate that the
NPRM creates a blanket rule denying
asylum based on its addition of certain
definitions—e.g., particular social
group, political opinion, nexus, and
persecution. Although the rule provides
definitions for these terms and examples
of situations that generally will not meet
those definitions, the rule also makes
clear that the examples are
generalizations, and it does not
categorically rule out types of claims
based on those definitions. In short, the
rule does not contain the blanket
prohibitions that some commenters
ascribe to it.
Many comments assert that the NPRM
targets certain nationalities, groups, or
types of claims and is motivated by a
nefarious or conspiratorial animus,
particularly an alleged racial animus.
The Departments categorically deny an
improper motive in promulgating the
NPRM. Rather, the animating principles
of the NPRM were to provide clearer
guidance to adjudicators regarding a
number of thorny issues that have
11 For similar reasons, the NPRM cannot—and
does not—alter the general availability of
withholding of removal under the Act or protection
under the CAT.
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created confusion and inconsistency; to
improve the efficiency and integrity of
the overall system; to correct procedures
that were not working well, including
the identification of meritless or
fraudulent claims; and to reset the
overall asylum adjudicatory framework
in light of numerous—and often
contradictory or confusing—decisions
from the Board and circuit courts. The
Departments’ positions are rooted in
law, as explained in the NPRM. In short,
the Departments have not targeted any
particular groups or nationalities in the
NPRM or in the provisions of this final
rule.12 Rather, the Departments are
appropriately using rulemaking to
provide guidance in order to streamline
determinations consistent with their
statutory authorities. See Heckler v.
Campbell, 461 U.S. 458, 467 (1983)
(‘‘The Court has recognized that even
where an agency’s enabling statute
expressly requires it to hold a hearing,
the agency may rely on its rulemaking
authority to determine issues that do not
require case-by-case consideration. . . .
A contrary holding would require the
agency continually to relitigate issues
that may be established fairly and
efficiently in a single rulemaking
proceeding.’’) (citation omitted); see
also Lopez v. Davis, 531 U.S. 230, 243–
44 (2001) (‘‘[E]ven 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 Lopez—case-by-case
decision-making in thousands of cases
each year—could invite favoritism,
disunity, and inconsistency.’’) (citations
and internal quotations omitted).
Many, if not most, commenters
asserted that the rule was ‘‘arbitrary and
capricious,’’ though nearly all of those
assertions were ultimately rooted in the
fact that the rule did not adopt the
commenters’ policy preferences rather
than specific legal deficiencies. The
Departments have considered all
comments and looked at alternatives.
The Departments understand that many,
12 Asylum claims are unevenly distributed among
the world’s countries. See EOIR, Asylum Decision
Rates by Nationality (July 14, 2020), https://
www.justice.gov/eoir/page/file/1107366/download.
Thus, to the extent that the NPRM affects certain
groups of aliens more than others, those effects are
a by-product of the inherent distribution of claims,
rather than any alleged targeting by the
Departments. See also DHS v. Regents of Univ. of
Cal., 140 S.Ct. 1891, 1915–16 (2020) (impact of a
policy on a population that is intrinsically skewed
demographically does not established a plausible
claim of racial animus, invidious discrimination, or
an equal protection violation).
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if not most, commenters opposing the
rule believe that most asylum
applications are meritorious and, thus,
would prefer that more applications for
asylum be granted; that border
restrictions should be loosened; and that
the Departments, as a matter of
forbearance or discretion, should
decline to enforce the law when doing
so would be beneficial to aliens. For all
of the reasons discussed in the NPRM,
and reiterated herein, the Departments
decline to adopt those positions.
The Departments further understand
that many if not most commenters have
a policy preference for the status quo
over the proposed rule changes. The
Departments have been forthright in
acknowledging the changes, but have
also explained the reasoning behind
those changes, including the lack of
clarity in key statutory language and the
resulting cacophony of case law that
leads to confusion and inconsistency in
adjudication. The Departments
acknowledge changes in positions,
where applicable have provided good
reasons for the changes; they believe the
changes better implement the law; and
they have provided a ‘‘reasoned
analysis’’ for the changes, which is
contained in the NPRM and reiterated
herein in response to the comments
received. In short, the rule is not
‘‘arbitrary and capricious’’ under
existing law. See FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009).
Finally, many commenters assert that
various provisions of the NPRM are
inconsistent with either Board or
circuit-court precedents. The
Departments may engage in rulemaking
that overrules prior Board precedent,
and as noted in the NPRM, 85 FR at
36265 n.1, to the extent that some
circuits have disagreed with the
Departments’ interpretations of
ambiguous statutory terms in the past,
the Departments’ new rule would
warrant reevaluation in appropriate
cases under well-established principles
of administrative law. See Nat’l Cable &
Telecomms. Ass’n v. Brand X internet
Servs., 545 U.S. 967, 982 (2005)
(hereinafter ‘‘Brand X’’); Chevron,
U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837,
842–844 (1984). Moreover, ‘‘ ‘judicial
deference to the Executive Branch is
especially appropriate in the
immigration context,’ where decisions
about a complex statutory scheme often
implicate foreign relations.’’ Scialabba
v. Cuellar de Osorio, 573 U.S. 41, 56–
57 (2014) (plurality op.) (quoting INS v.
Aguirre-Aguirre, 526 U.S. 415, 425
(1999)).
Consequently, for the reasons
explained in the NPRM and herein,
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prior Board and circuit court decisions
do not restrict the Departments to the
extent asserted by most commenters.
Further, as also discussed, infra, and
recognized by commenters, much of the
relevant circuit court case law points in
different directions and offers multiple
views on the issues in the NPRM. There
is nothing inappropriate about the
Departments seeking to improve the
consistency, clarity, and efficiency of
asylum adjudications, and to bring some
reasonable order to the dissonant views
on several important-but-contested
statutory issues. See, e.g., Fed. Express
Corp. v. Holowecki, 552 U.S. 389, 403
(2008) (‘‘We find no reason in this case
to depart from our usual rule: Where
ambiguities in statutory analysis and
application are presented, the agency
may choose among reasonable
alternatives.’’).
Overall, and as discussed in more
detail below, the Departments generally
decline to adopt the recommendations
of comments that misinterpret the
NPRM, offer dire and speculative
predictions that lack support, are
contrary to facts or law, or otherwise
lack an understanding of relevant law
and procedures.
B. Comments Expressing Support for the
Proposed Rule
Comment: At least two organizations
and other individual commenters
expressed general support for the rule.
Some commenters noted the need for
regulatory reform given the current
delays in asylum adjudication and said
the rule is a move in the right direction.
Other commenters indicated a range of
reasons for their support, including a
desire to limit overall levels of
immigration, a belief that many
individuals who claim asylum are
instead simply seeking better economic
opportunities, or a belief that asylum
seekers or immigration representatives
abuse the asylum system.
Commenters stated that the rule will
aid both adjudicators and applicants.
For example, one individual and
organization explained that:
[T]hese proposals will give aliens applying
for protection ample notice and motivation to
file complete and adequately reasoned
asylum applications in advance of the merits
hearing, which will protect the rights of the
alien, assist the IJ in completing the case in
a timely manner, and aid the ICE attorney in
representing the interests of the government.
Response: The Departments note and
appreciate these commenters’ support
for the rule.
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the Proposed Rule
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1. General Opposition
1.1. General Immigration Policy
Concerns
Comment: Many commenters
expressed a general opposition to the
rule, and noted that, although they may
not be commenting on every aspect of
the rule, a failure to comment on a
specific provision does not mean that
the commenter agrees with a provision.
Commenters stated that the rule would
‘‘destroy’’ the U.S. asylum system and
would result in the denial of virtually
all asylum applications. Instead,
commenters recommended that the
current regulations remain in place.
Moreover, commenters stated that the
rule conflicts with America’s values and
deeply rooted policy of welcoming
immigrants and refugees. Commenters
asserted that the rule would damage the
United States’ standing in the world.
Commenters explained that the United
States should be promoting values of
freedom and human rights, and that
immigration benefits the United States
both economically and culturally.
Commenters asserted that the rule
provides inadequate legal reasoning and
is inappropriately motivated by the
administration’s animus against
immigrants.
Response: The rule is not immoral,
motivated by racial animus, or
promulgated with discriminatory intent.
Instead, the rule is intended to help the
Departments better allocate limited
resources in order to more expeditiously
adjudicate meritorious asylum, statutory
withholding of removal, and CAT
protection claims. For example, placing
aliens who receive a positive credible
fear screening into asylum-andwithholding-only proceedings will
lessen the strain on the immigration
courts by limiting the focus of such
proceedings and thereby streamlining
the process. Similarly, applying certain
asylum bars and raising the standards
for statutory withholding of removal
and CAT protection will help screen out
non-meritorious claims during the
credible fear screening, which will
allow the Departments to devote their
limited resources to adjudicating claims
that are more likely to be meritorious.
Likewise, allowing immigration judges
to pretermit asylum applications that
are not prima facie eligible for relief will
allow judges to use limited hearing time
to focus on cases with a higher chance
of being meritorious. The rule’s
expanded definition of frivolousness
will also help to deter specious claims
that would otherwise require the use of
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limited judicial resources. The rule’s
additional guidance regarding certain
definitions (such as particular social
groups, political opinion, persecution,
and acquiescence, among others), as
well as enumerated negative
discretionary factors, will provide
clarity to adjudicators and the parties
and make the adjudicatory process more
efficient and consistent.
These changes do not ‘‘destroy’’ the
U.S. asylum system, prevent aliens from
applying for asylum, or prevent the
granting of meritorious claims, contrary
to commenters’ claims. The asylum
system remains enshrined in both
statute and regulation. Rather, the
changes are intended to harmonize the
process between the relevant
Departments, provide more clarity to
adjudicators, and allow the immigration
system to more efficiently focus its
resources on adjudicating claims that
are more likely to be meritorious. In
doing so, the rule will help the
Departments ensure that the asylum
system is available to those who truly
have ‘‘nowhere else to turn.’’ Matter of
B–R–, 26 I&N Dec. 119, 122 (BIA 2013)
(internal citations omitted).
1.2. Issuance of Joint Regulations
Comment: At least one commenter
expressed a belief that it is
inappropriate for DHS (characterized by
the commenter as the immigration
prosecutors) and DOJ (characterized by
the commenter as the immigration
adjudicators) to issue rules jointly
because the agencies serve different
roles and missions within the
immigration system. The commenter
stated that the issuance of joint
regulations calls into question the
agencies’ independence from each
other.
Response: The HSA divided, between
DHS and DOJ, some immigration
adjudicatory and enforcement functions
that had previously been housed within
DOJ. See INA 103, 8 U.S.C. 1103 (setting
out the powers of the Secretary and
Under Secretary of DHS and of the
Attorney General); see also HSA, sec.
101, 116 Stat. at 2142 (‘‘There is
established a Department of Homeland
Security, as an executive department of
the United States . . . .’’). However,
the Departments disagree that issuing
joint regulations violates the agencies’
independence in the manner suggested
by commenters. Instead, the DHS and
DOJ regulations are inextricably
intertwined, and the Departments’ roles
are often complementary. See, e.g., INA
235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III) (providing for
immigration judge review of asylum
officers’ determinations regarding
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certain aliens’ credible fear claims); see
also 8 CFR 208.30 and 1208.30 (setting
out the credible fear procedures, which
involve actions before both DHS/USCIS
and DOJ/EOIR). Because officials in
both DHS and DOJ make determinations
involving the same provisions of the
INA, including those related to asylum,
it is appropriate for the Departments to
coordinate on regulations like the
proposed rule that affect both agencies’
equities in order to ensure consistent
application of the immigration laws.
1.3. Impact on Particular Populations
Comment: Commenters asserted that
the proposed regulation is in conflict
with American values and that it would
deny due process to specific
populations—including women, LGBTQ
asylum seekers, and children.
Commenters similarly expressed
concerns that the proposed regulation
would lead to the denial of virtually all
applications from those populations,
which, commenters asserted, would
place them in harm’s way.
Commenters asserted that the
elimination of gender-based claims
would be particularly detrimental to
women and LGBTQ asylum-seekers.
Commenters asserted that the proposed
rule would ‘‘all but ban’’ domesticviolence-based and gang-based claims.
Commenters noted that courts have
found that such claims can be
meritorious.
Response: The Departments disagree
that the rule is contrary to American
values. The United States continues to
fulfill its international commitments in
accordance with the Refugee Act of
1980,13 evidenced by United Nations
High Commissioner for Refugees
(‘‘UNHCR’’) data on refugee resettlement
confirming that the United States was
the top country for refugee resettlement
in 2019, as well as 2017 and 2018. See
UNHCR, Resettlement at a Glance
(January–December 2019), https://
www.unhcr.org/protection/resettlement/
5e31448a4/resettlement-fact-sheet2019.html. Further, since the Refugee
Act was passed, the United States has
admitted more than three million
refugees and granted asylum to more
than 721,000 individuals. See UNHCR,
Refugee Admissions, https://
www.state.gov/refugee-admissions/. In
Fiscal Year (‘‘FY’’) 2019 alone, the
Departments approved nearly 39,000
asylum applications. EOIR, Asylum
Decision Rates, (Oct. 13, 2020), https://
www.justice.gov/eoir/page/file/1248491/
download (listing 18,836 grants); USCIS,
Number of Service-wide Forms Fiscal
13 See infra Section II.C.6.8 for further discussion
on this point.
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sites/default/files/document/data/
Quarterly_All_Forms_FY19Q4.pdf
(listing 19,945 grants). This rule does
not affect the United States’ longstanding commitment to assisting
refugees and asylees from around the
world.
The rule does not deny due process to
any alien. As an initial matter, courts
have found that aliens have no
cognizable due process interest in the
discretionary benefit of asylum. See
Yuen Jin v. Mukasey, 538 F.3d 143,
156–57 (2d Cir. 2008); Ticoalu v.
Gonzales, 472 F.3d 8, 11 (1st Cir. 2006)
(citing DaCosta v. Gonzales, 449 F.3d
45, 49–50 (1st Cir. 2006)). Still, the
statute and regulations provide for
certain basic procedural protections—
such as notice and an opportunity to be
heard—and the rule does not alter those
basic protections. See LaChance v.
Erickson, 522 U.S. 262, 266 (1998)
(‘‘The core of due process is the right to
notice and a meaningful opportunity to
be heard.’’); see also Lapaix v. U.S. Att’y
Gen., 605 F.3d 1138, 1143 (11th Cir.
2010) (‘‘Due process requires that aliens
be given notice and an opportunity to be
heard in their removal proceedings.’’).
Aliens in removal proceedings will
continue to be provided a notice of the
charges of removability, INA 239(a)(1), 8
U.S.C. 1229(a)(1), have an opportunity
to present the case to an immigration
judge, INA 240(a)(1), 8 U.S.C.
1229a(a)(1), and have an opportunity to
appeal, 8 CFR 1003.38. Aliens in
asylum-and-withholding-only
proceedings will continue to be
provided notice of referral for a hearing
before an immigration judge, 8 CFR
1003.13 (defining ‘‘charging document’’
used by DHS to initiate non-removal,
immigration proceedings before an
immigration judge), to have an
opportunity to be heard by an
immigration judge, 8 CFR 1208.2(c), and
have an opportunity to appeal, 8 CFR
1003.1(b)(9). Nothing in the proposed
regulations alters those well-established
procedural requirements.
The generalized concern that the rule
will categorically deny asylum to
classes of persons, such as women or
LGBTQ asylum-seekers—and thus put
those persons in harm’s way—is
unsupported, speculative, and overlooks
the case-by-case nature of the asylum
process. The rule provides more clarity
to adjudicators regarding a number of
difficult issues—e.g. persecution,
particular social group, and nexus—in
order to improve the consistency and
quality of adjudications, but it
establishes no categorical bars to
domestic-violence-based or gang-based
claims, and no categorical bars based on
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the class or status of the person claiming
asylum; instead, asylum cases turn on
the nature of the individual’s claim.
Moreover, in accordance with its nonrefoulement obligations, the United
States continues to offer statutory
withholding of removal and CAT
protection. Although this rule amends
those forms of relief, the amended relief
continues to align with the provisions of
the 1951 Convention relating to the
Status of Refugees, the 1967 Protocol
relating to the Status of Refugees, and
the CAT, such that eligible aliens will
not be returned to places where they
may be subjected to persecution or
torture.
The portion of the rule that draws the
objection above does not categorically
ban or eliminate any types of claims,
including those posited by the
commenters. In relevant part, the rule
codifies a long-standing test for
determining the cognizability of
particular social groups and sets forth a
list of common fact patterns involving
particular-social-group claims that
generally will not meet those longstanding requirements. See 85 FR at
36278–79; see also 8 CFR 208.1(f)(1),
1208.1(f)(1). At the same time, the
Departments recognized in the NPRM
that ‘‘in rare circumstances,’’ items from
the list of common fact patterns ‘‘could
be the basis for finding a particular
social group, given the fact- and societyspecific nature of this determination.’’
85 FR at 36279. Thus, the NPRM
explicitly stated that the rule did not
‘‘foreclose’’ any claims; the inquiry
remains case-by-case.
2. Expedited Removal and Screenings in
the Credible Fear Process
2.1. Asylum-and-Withholding-Only
Proceedings for Aliens With Credible
Fear
Comment: One organization stated
that the rule would deprive individuals
who have established a credible fear
from being placed into full removal
proceedings under section 240 of the
Act, 8 U.S.C. 1229a. Another
organization claimed that the rule,
‘‘effectively destroys due process rights
of asylum seekers’’ as it would prevent
these individuals from contesting
removability where there are ‘‘egregious
due process violations,’’ defects in the
Notice to Appear, or competency
concerns.
One organization stated that the rule
is contrary to congressional intent
because there is no statutory prohibition
against placing arriving asylum seekers
into complete section 240 proceedings,
and at least one organization claimed
that this intent is supported by the
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legislative history. One organization
expressed its disagreement with the
rule’s citation to Matter of M–S–, 27 I&N
Dec. 509 (A.G. 2019), 85 FR at 36267
n.9, contending that if Congress
intended to ‘‘strip asylum-seekers of
their due process rights, it would have
expressly said so.’’ Another organization
stated that the rule is ‘‘[a]rbitrary and
capricious,’’ noting that the proposed
policy is a ‘‘dramatic change’’ from
decades of practice but claiming the
Departments offer ‘‘no discussion’’ as to
why it is necessary.
One organization emphasized that
‘‘asylum-only proceedings,’’ are limited
in scope and both parties are prohibited
from raising ‘‘any other issues.’’ The
organization alleged that the NPRM did
not include any data regarding the
number of asylum seekers who are
placed in section 240 proceedings after
passing a credible fear interview, or the
number of respondents in these
proceedings who are granted some form
of relief besides asylum or withholding
of removal. Because of this, the
organization claimed that the rule ‘‘does
not provide adequate justification’’ for
the proposed change.
Another organization claimed the rule
‘‘pre-supposes’’ that asylum seekers
would not be eligible for other forms of
immigration relief. The organization
noted that many individuals who are
apprehended at the border as asylum
applicants may also be victims of
human trafficking or serious crimes
committed within the United States.
The organization stated that Congress
has recognized the unique assistance
that victims of human trafficking and
victims of crimes potentially eligible for
U visas are able to provide to Federal
law enforcement, claiming this is the
reason the S visa, T visa, and U visa
programs were created. The
organization asserted that if the
Departments ‘‘cut off’’ access to a
complete section 240 proceeding, they
will essentially ‘‘tie the hands’’ of law
enforcement. Another organization
expressed concern that the rule would
prevent survivors of gender-based and
LGBTQ-related violence in expedited
removal proceedings from applying for
protection under the Violence Against
Women Act (‘‘VAWA’’) or the William
Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008
(‘‘TVPRA’’).
One organization contended that there
is little efficiency in abandoning
removability determinations in removal
proceedings, arguing that ‘‘[i]n the
overwhelming majority of cases, the
pleadings required to establish
removability take 30 seconds.’’ The
organization argued that Congress
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would not have chosen to sacrifice
competency and accuracy to save such
a short amount of time. Another
organization criticized the rule’s
statement that ‘‘referring aliens who
pass a credible fear for section 240
proceedings runs counter to [the]
legislative aims’’ of a quick expedited
removal process, 85 FR at 36267,
arguing that this justification is ‘‘faulty
at best and baseless at worst.’’ One
organization claimed that administrative
efficiency is aided by the availability of
a broad range of reliefs because
respondents placed in full removal
proceedings often qualify for a simpler
form of relief, allowing courts to omit
many of these complexities.
One organization noted that, in the
expedited removal context, decisions
are made by Customs and Border
Protection (‘‘CBP’’) officers. The
organization expressed concern about
the risk of error in permitting an
enforcement officer to act as both
‘‘prosecutor and judge,’’ particularly
when the officer’s decisions are not
subject to appellate review. The
organization also noted the rule’s
reference to the ‘‘prosecutorial
discretion’’ of DHS in removal
proceedings and argued that this
discretion does not include the
authority to create new types of
proceedings. Instead, the organization
contended that this discretion is
confined to decisions surrounding the
determination of whether to pursue
charges. Another organization
emphasized that, while DHS has the
discretion to place an individual
without documentation directly into
section 240 proceedings instead of
expedited removal, this discretion is
‘‘initial,’’ and does not continue once
the individual has established fear (as
the individual must then be referred for
full consideration of his or her claims).
The organization disagreed with the
rule’s assertion, 85 FR at 36266, that the
current practice of placing applicants
with credible fear into section 240
proceedings ‘‘effectively negat[es]’’
DHS’s prosecutorial discretion.
The organization further disagreed
with the Departments’ claim that ‘‘[b]y
deciding that the [individual] was
amenable to expedited removal, DHS
already determined removability,’’ 85
FR at 36266, contending this
‘‘overreaches.’’ The organization noted
that, pursuant to section 235(b)(1) of the
Act, 8 U.S.C. 1225(b)(1), a DHS
inspector does have initial discretion to
place an applicant into expedited
removal proceedings if it is determined
that the person ‘‘is inadmissible under
section 1182(a)(6)(C) or 1182(a)(7);’’
however, the organization emphasized
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that this is not the ultimate
determination for applicants who
establish credible fear, as DHS cannot
continue to seek expedited removal at
this point.
One organization stated that, when
Congress enacted the Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996 (‘‘IIRIRA’’),
Public Law 104–208, Div. C, 110 Stat.
3009, 3009–546, it created two specific
removal procedures: Expedited removal
proceedings in section 235 of the Act, 8
U.S.C. 1225, and regular removal
proceedings in section 240 of the Act, 8
U.S.C. 1229a. The organization asserted
that section 240 proceedings are the
‘‘exclusive’’ admission and removal
proceedings ‘‘unless otherwise
specified’’ in the Act, 8 U.S.C.
1229a(a)(3). The organization also noted
Congress’s specification that certain
classes of citizens should not be placed
in full removal proceedings, noting the
exclusion of persons convicted of
particular crimes (INA 240(a)(3), 8
U.S.C. 1229a(a)(3)); INA 238(a)(1), 8
U.S.C. 1228(a)(1)) as well as the
prohibition of visa waiver program
participants from contesting
inadmissibility or removal except on the
basis of asylum (INA 217(b), 8 U.S.C.
1187(b)). The organization also noted
that, within the expedited removal
statute itself, Congress specifically
excluded stowaways from section 240
proceedings (INA 235(a)(1), 8 U.S.C.
1225(a)(2)); in contrast, Congress
considered asylum seekers to be
applicants for admission under section
235(a)(1) of the Act, 8 U.S.C. 1225(a)(1),
and did not similarly exclude them (see
INA 235(b), 8 U.S.C. 1225(b)). The
organization concluded that the plain
text of the INA ‘‘precludes the agencies’
claim that they are free to make up new
procedures to apply to arriving asylees’’
(citing Henson v. Santander Consumer
USA, Inc., 137 S. Ct. 1718, 1723 (2017)).
The organization claimed that IIRIRA’s
legislative history ‘‘unanimously
confirms’’ this conclusion, citing the
conference report by the Joint
Committee from the House and the
Senate in support of its assertion. See
H.R. Rep. No. 104–828 at 209 (1996).
The organization also emphasized that,
after twenty-three years of placing
applicants with credible fear into
section 240 proceedings, ‘‘Congress has
never suggested that the agencies got
that wrong.’’
Another organization emphasized that
Congress only authorized expedited
removal for a specific category of
noncitizens and that, at the time this
determination was made, the class was
confined to individuals arriving at ports
of entry. The organization argued that
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Congress did not intend to deter
individuals who have ‘‘cleared the
hurdle of establishing a credible fear of
persecution.’’ Another organization
argued that the credible fear screening
‘‘creates an exit’’ from expedited
removal proceedings, emphasizing that
those who establish credible fear are
effectively ‘‘screened out’’ of expedited
removal proceedings (INA
235(b)(1)(B)(ii)–(iii), 8 U.S.C.
1225(b)(1)(B)(ii)–(iii)). One organization
expressed particular concern that ‘‘the
president has announced an intention to
expand expedited removal to the
interior of the United States,’’ noting
that noncitizens who have been in the
United States for up to two years are
more likely to have other forms of relief
to pursue.
Response: The Departments disagree
with commenters that the INA requires
aliens who are found to have a credible
fear to be placed in full removal
proceedings pursuant to section 240 of
the Act, 8 U.S.C. 1229(a). The expedited
removal statute states only that ‘‘the
alien shall be detained for further
consideration of the application for
asylum,’’ but is silent on the type of
proceeding. INA 235(b)(1)(B)(ii) 8 U.S.C.
1225(b)(1)(B)(ii). This silence is notable
as Congress expressly required or
prohibited the use of full removal
proceedings elsewhere in the same
expedited removal provisions. Compare
INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A)
(explicitly requiring certain aliens not
eligible for expedited removal to be
placed in section 240 removal
proceedings), with INA 235(a)(2), 8
U.S.C. 1225(a)(2) (explicitly prohibiting
stowaways from being placed in section
240 removal proceedings).14 As
explained in the NPRM, the former
Immigration and Naturalization Service
(‘‘INS’’) interpreted this ambiguous
section to place aliens with positive
credible fear determinations into section
240 removal proceedings. See
Inspection and Expedited Removal of
Aliens; Detention and Removal of
Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 FR
10312 (Mar. 6, 1997). However, it is the
Departments’ view that the better
interpretation is to place aliens with
positive credible fear determinations
into limited asylum-and-withholdingonly proceedings. This is consistent
with the statutory language that the
14 The Departments note that section 240(a)(3) of
the Act (8 U.S.C. 1229a(a)(3)), which makes removal
proceedings the ‘‘exclusive’’ procedure for
inadmissibility and removability determinations, is
inapplicable here because DHS has already
determined inadmissibility as part of the expedited
removal process. See INA 235(b)(1)(A)(i) (8 U.S.C.
1225(b)(1)(A)(i)).
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alien is entitled to a further proceeding
related to the alien’s ‘‘application for
asylum,’’ and not a full proceeding to
also determine whether the alien should
be admitted or is otherwise entitled to
various immigration benefits. INA
235(b)(1)(B)(ii), 8 U.S.C.
1225(b)(1)(B)(ii).
This interpretation also best aligns
with the overall purpose of the
expedited removal statute to provide a
streamlined and efficient removal
process for certain aliens designated by
Congress.15 See generally INA 235, 8
U.S.C. 1225; cf. DHS v. Thuraissigiam,
140 S.Ct. 1959, 1966 (2020) (‘‘As a
practical matter . . . the great majority
of asylum seekers who fall within the
category subject to expedited removal
do not receive expedited removal and
are instead afforded the same
procedural rights as other aliens.’’).
Further, contrary to commenters’
claims, placing aliens into asylum-andwithholding-only proceedings is not
inconsistent with the purposes of the
credible fear statute. See INA
235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The
credible fear process was designed to
ensure that aliens subject to expedited
removal are not summarily removed to
a country where they may face
persecution on account of a protected
ground or torture. This rule maintains
those protections by ensuring that an
alien with a positive credible fear
finding receives a full adjudication of
their claim in asylum-and-withholdingonly proceedings.
Regarding commenters’ concerns
about due process in asylum-andwithholding-only proceedings, the
Departments note that the rule provides
the same general procedural protections
as section 240 removal proceedings. See
85 FR at 36267 (‘‘These ‘asylum-andwithholding-only’ proceedings generally
follow the same rules of procedure that
apply in section 240
proceedings . . . .’’); accord 8 CFR
1208.2(c)(3)(i) (‘‘Except as provided in
this section, proceedings falling under
the jurisdiction of the immigration judge
pursuant to paragraph (c)(1) or (c)(2) of
this section [i.e., asylum-andwithholding-only proceedings] shall be
conducted in accordance with the same
rules of procedure as proceedings
conducted under 8 CFR part 1240,
subpart A [i.e., removal proceedings].’’).
Moreover, just as in removal
proceedings, aliens will be able to
appeal their case to the BIA and Federal
circuit courts, as necessary. Finally, DOJ
15 The Departments note that any comments
regarding the potential expansion of expedited
removal is outside the scope of this rule. Cf.
Designating Aliens for Expedited Removal, 84 FR
35409 (July 23, 2019).
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has conducted asylum-and-withholdingonly proceedings for multiple categories
of aliens for years already, 8 CFR
1208.2(c)(1) and (2), with no alleged
systemic concerns documented about
the due process provided in those
proceedings.
The Departments agree with the
commenter who noted that removability
determinations are typically brief for
those aliens subject to expedited
removal who subsequently establish a
credible fear and are placed in removal
proceedings. The Departments believe
that comment further supports the
placement of such aliens in asylum-andwithholding-only proceedings since ‘‘in
the overwhelming majority of cases,’’
there is no need for a new removability
determination that would otherwise be
called for in removal proceedings.
The Departments disagree with
commenters that section 240 removal
proceedings are more efficient than
asylum-and-withholding-only
proceedings or that more data is
required to align asylum-andwithholding-only proceedings with the
statutory language of INA
235(b)(1)(B)(ii), 8 U.S.C.
1225(b)(1)(B)(ii), especially when there
was little analysis—and no data
offered—to support placing aliens with
positive credible fear determinations in
removal proceedings in the first
instance. See 85 FR at 36266 (stating
that the 1997 decision to place such
aliens in removal proceedings was made
with limited analysis, other than to note
that the statute was silent on the type of
proceeding that could be used). Most
aliens subject to the expedited removal
process are, by definition, less likely to
be eligible for certain other forms of
relief due to their relatively brief
presence in the United States. See, e.g.,
INA 240A(b)(1), 8 U.S.C. 1229b(b)(1)
(cancellation of removal for certain nonpermanent residents requires ten years
of continuous physical presence); INA
240B(b)(1)(A), 8 U.S.C. 1229c(b)(1)(A)
(voluntary departure at the conclusion
of proceedings requires an alien to have
been physically present in the United
States for at least one year prior to the
service of a notice to appear). In
particular, they are less likely to be
eligible for the simplest form of relief,
voluntary departure, because either they
are arriving aliens, INA 240B(a)(4), 8
U.S.C. 1229c(a)(4), or they are seeking
asylum, 8 CFR 1240.26(b)(1)(i)(B)
(requiring the withdrawal of claims for
relief in order to obtain pre-hearing
voluntary departure), or they have not
been physically present in the United
States for at least one year prior to being
placed in proceedings, INA
240B(b)(1)(A), 8 U.S.C. 1229c(b)(1)(A).
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Further, immigration judges often
adjudicate multiple forms of relief in a
single removal proceeding—in addition
to asylum, withholding of removal, or
CAT claims—and those additional
issues generally only serve to increase
the length of the proceedings. Although
there may be rare scenarios in which
aliens subject to expedited removal are
eligible for a form of relief other than
asylum, the Departments believe that
interpreting the statute to place aliens
with positive credible-fear
determinations into more limited
asylum-and-withholding-only
proceedings properly balances the need
to prevent aliens from being removed to
countries where they may face
persecution or torture with ensuring the
efficiency of the overall adjudicatory
process.
The Departments also disagree with
comments that the placement of aliens
who have passed a credible fear review
in asylum-and-withholding-only
proceedings will somehow ‘‘tie the
hands’’ of law enforcement regarding an
alien’s eligibility for certain visas. The
rule has no bearing on an alien’s ability
to provide assistance to law
enforcement, and the adjudication of
applications for S-, T-, and U-visas
occurs outside of any immigration court
proceedings.16 See generally 8 CFR
214.2(t) (S-visa adjudication process),
214.11 (T-visa adjudication process),
214.14 (U-visa adjudication process).
Commenters also mischaracterize the
Departments’ policy reliance on DHS’s
prosecutorial discretion authority,
claiming that the Departments are
relying on this discretion as the legal
authority for placing aliens with
positive credible fear determinations
into asylum-and-withholding-only
proceedings. However, it is the
expedited removal statute that provides
the authority, see INA 235(b)(1)(B)(ii), 8
U.S.C. 1225(b)(1)(B)(ii), not DHS’s
prosecutorial discretion. In the NPRM,
the Departments noted that it made
better policy sense to place aliens with
positive credible fear determinations
into asylum-and-withholding-only
proceedings; placing aliens in section
240 proceedings after a credible fear
determination ‘‘effectively negates
DHS’s original discretionary decision.’’
85 FR at 36266.
The Departments acknowledge
commenters’ concerns about CBP
processing aliens for expedited removal
and the exercise of prosecutorial
discretion, but those issues are beyond
16 The Departments note that S-visa recipients are
already subject to withholding-only proceedings.
INA 214(k)(3)(C), 8 U.S.C. 1184(k)(3)(C); 8 CFR
236.4(d), (e) and 1208.2(c)(2)(vi).
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the scope of the rule. Moreover, the rule
does not affect DHS’s use of
prosecutorial discretion, nor does it
alter any other statutory authority of
CBP.
2.2. Consideration of Precedent When
Making Credible Fear Determinations in
the ‘‘Credible Fear’’ Process
Comment: One organization stated
that the rule would ‘‘unnecessarily
narrow’’ the law that immigration
judges must consider in the context of
a credible fear review, restricting them
to the circuit court law in their own
jurisdiction. The organization alleged
that this ‘‘makes little sense’’ because
individuals seeking a credible fear
review will often have their asylum
claim adjudicated in a jurisdiction with
different case law than the jurisdiction
where their credible fear claim is
reviewed. As an example, one
organization suggested that an asylum
seeker apprehended in Brownsville,
Texas, in the Fifth Circuit, could
subsequently have his or her asylum
claim heard in an immigration court
located within another circuit’s
jurisdiction. Because of this, the
organization urged asylum officers and
immigration judges to consider all case
law when determining the possibility of
succeeding on the claim, ‘‘[r]egardless of
the location of the credible fear
determination.’’
One organization claimed the rule
could require asylum officers to order
the expedited removal of an applicant
who has shown an ability to establish
asylum eligibility under section 208 of
the Act, 8 U.S.C. 1158, in another circuit
or district, which the organization
alleged is contrary to section
235(b)(1)(B)(v) of the Act, 8 U.S.C.
1225(b)(1)(B)(v). The organization also
claimed this portion of the rule is ‘‘flatly
contrary’’ to the decision in Grace v.
Whitaker, 344 F. Supp. 3d 96 (D.D.C.
2018) (hereinafter ‘‘Grace I’’), overruled
in part, Grace v. Barr, 965 F.3d 883
(D.C. Cir. 2020), holding that the same
provision in USCIS guidance was
contrary to the INA. The organization
quoted Grace I, 344 F. Supp. 3d 96 in
which the court stated that ‘‘[t]he
government’s reading would allow for
an [individual’s] deportation, following
a negative credible fear determination,
even if the [individual] would have a
significant possibility of establishing
asylum under section 1158 during his or
her removal proceeding. Thus, the
government’s reading leads to the exact
opposite result intended by Congress.’’
Id. at 140. The organization also claimed
the rule violates Brand X because it
exceeds the Departments’ ‘‘limited
ability to displace circuit precedent on
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a specific question of law to which an
agency decision is entitled to deference’’
(citing Grace I, 344 F. Supp. 3d at 136).
Another organization alleged that the
Departments offer no explanation for the
policy change, claiming there is ‘‘no
discernable reason’’ for it other than to
‘‘limit the possibility of favorable case
law in another jurisdiction.’’
One organization noted that wellsettled USCIS policy holds that, in the
case of a conflict or question of law,
‘‘generally the interpretation most
favorable to the applicant is used when
determining whether the applicant
meets the credible fear standard’’
regardless of where the credible fear
interview is held. The organization
claimed that this policy is in line with
congressional intent, quoting a
statement from Representative Smith
that ‘‘[l]egal uncertainty must, in the
credible fear context, adhere to the
applicant’s benefit.’’ The organization
alleged that the NPRM fails to note or
explain this departure from practice.
Response: The Departments decline to
respond to comments centering on an
asylum officer’s consideration of
precedent as that issue was not
addressed in this rule, and further
disagree with commenters that
immigration judges are currently
required to consider legal precedent
from all Federal circuit courts in
credible fear proceedings. DOJ has not
issued any regulations or guidance
requiring immigration judges to use a
‘‘most favorable’’ choice of law standard
in credible fear review proceedings. See,
e.g., 8 CFR 1003.42.
Moreover, the statute is silent as to
this choice of law question. See INA
235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III). Due to this
ambiguity, the Departments are
interpreting the statute to require
immigration judges to apply the law of
the circuit in which the credible fear
review proceeding is located. This better
comports with long-standing precedent
affirming the use of the ‘‘law of the
circuit’’ standard in immigration
proceedings. See Jama v. ICE, 543 U.S.
335, 351 n.10 (2005) (‘‘With rare
exceptions, the BIA follows the law of
the circuit in which an individual case
arises . . . .’’ (citations omitted));
Ballesteros v. Ashcroft, 452 F.3d 1153,
1157 (10th Cir. 2006) (explaining that an
immigration judge ‘‘should analyze
removability and relief issues using only
the decisions of the circuit in which he
or she sits . . . since it is to that circuit
that any appeal from a final order of
removal must be taken’’). It will also
provide clarity to immigration judges
conducting credible fear reviews,
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particularly on issues in which there is
conflicting circuit court precedent.
Further, contrary to commenters’
assertions, in most cases the
immigration judge conducting the
credible fear review in person will be in
the same circuit in which the full
asylum application in asylum-andwithholding only proceedings would be
adjudicated if the judge finds the alien
has a credible fear.17 Aliens in this
posture are subject to detention by DHS.
Thuraissigiam, 140 S.Ct. at 1966
(‘‘Whether an applicant [subject to
expedited removal] who raises an
asylum claim receives full or only
expedited review, the applicant is not
entitled to immediate release.’’). As a
result, unless DHS moves the alien to a
detention facility in a different circuit,
the case would likely remain in the
same jurisdiction. Requiring the
immigration judge to review nationwide
circuit case law would only create
inefficiencies in a credible fear review
process that Congress intended to be
streamlined. See INA
235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III) (requiring
immigration judge review to be
completed ‘‘as expeditiously as
possible, to the maximum extent
practicable within 24 hours, but in no
case later than 7 days’’ after the asylum
officer’s determination).
Moreover, the Departments have
reviewed the statutory mandate in the
credible fear context and note that a rule
requiring evaluation of a claim using
law beyond that of a particular circuit
could produce perverse outcomes
contrary to the statute. For example, an
alien could be found to have a
‘‘significant possibility’’ of establishing
eligibility for asylum under section 208
of the Act even though binding law of
the circuit in which the application
would be adjudicated precludes the
alien from any possibility of
establishing eligibility for asylum. Such
an absurd result would be both contrary
to the statutory definition of a credible
fear, INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v), and would further
burden the system with claims that were
known to be unmeritorious at the outset.
The Departments decline to adopt a
course of action that would lead to
results inconsistent with the statute.
Moreover, adopting the uniform rule
proposed by the Departments would
ameliorate otherwise significant
operational burdens—burdens that
would be inconsistent with Congress’s
17 Even in situations in which an immigration
judge conducts the review from a different
location—e.g. by telephone or by video
teleconferencing—in a different circuit, the rule
provides a clear choice of law principle to apply.
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goal of establishing an efficient
expedited removal system. Without it,
asylum officers and immigration judges
around the country would potentially
have to consider and apply a shifting
patchwork of law from across the
country, and this obligation would
undermine the stated statutory aim of
expedited removal: To remove aliens
expeditiously.
The Departments’ choice-of-law rule
in this context is reasonable. The most
natural choice-of-law principle is the
rule that the law of the circuit where the
interview is conducted governs. That is
the principle embraced by DOJ in
adjudicating the merits of asylum
claims, Matter of Anselmo, 20 I&N Dec.
25, 31 (BIA 1989) (‘‘We are not required
to accept an adverse determination by
one circuit . . . as binding throughout
the United States.’’), as well as by
circuit courts. For example, where the
law governing an agency’s adjudication
is unsettled, an agency generally is
required to acquiesce only in the law of
the circuit where its actions will be
reviewed; while ‘‘intracircuit
acquiescence’’ is generally required,
‘‘intercircuit acquiescence’’ is not. See
Johnson v. U.S. R.R. Ret. Bd., 969 F.2d
1082, 1093 (D.C. Cir. 1992). Because the
circuits may disagree on the law,
requiring acquiescence with every
circuit would charge the Departments
with an impossible task of following
contradictory judicial precedents. See
Nat’l Envtl. Dev. Ass’n Clean Air Project
v. EPA, 891 F.3d 1041, 1051 (D.C. Cir.
2018); see also Grant Med. Ctr. v.
Hargan, 875 F.3d 701, 709 (D.C. Cir.
2017).
Intercircuit nonacquiescence
principles are especially important
where there is ‘‘venue uncertainty,’’
meaning the agency cannot know at the
time it issues its decision in which
circuit that decision will be reviewed. In
those situations, an agency has
discretion in its choice of law, though
it must be candid about its
nonacquiescence. See Grant Med. Ctr.,
875 F.3d at 707. The rule’s choice-oflaw provision in this context is fully
consistent with the Board’s longstanding approach and the
administrative-law principles embraced
by circuit courts. At the time of the
credible-fear screenings by an asylum
officer, the only circuit with a definite
connection to the proceedings is the
circuit where the screening of the alien
takes place. The location of the alien at
the time of the credible fear
determination will be the determinative
factor as to which circuit’s law applies.
Applying that circuit’s law is an
objective, reasonable, administrable,
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and fair approach to credible-fear
screening.
In Grace v. Barr, the D.C. Circuit
affirmed an injunction of USCIS’s
implementation of a ‘‘law of the circuit’’
policy in credible fear proceedings. 965
F.3d 883 (D.C. Cir. 2020) (hereinafter
‘‘Grace II’’). However, in that case, the
court affirmed an injunction based on
USCIS’s failure to explain the basis of
its ‘‘law of the circuit’’ policy and
expressly declined to decide whether
the substance of such a policy—if
explained more fully—would be
contrary to law. Id. at 903. Here, as
detailed above, the Departments have
explained the necessity of codifying a
law of the circuit policy in credible fear
proceedings before immigration judges
and, to that end, are interpreting an
ambiguous statutory provision, INA
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v)
(defining ‘‘credible fear of persecution’’
by reference to eligibility for asylum), in
which the Departments are entitled
deference. See Chevron, U.S.A., Inc.,
467 U.S. at 844 (holding that, when
interpreting an ambiguous statute, ‘‘a
court may not substitute its own
construction of a statutory provision for
a reasonable interpretation made by the
administrator of an agency’’).
2.3. Remove and Reserve DHS-Specific
Procedures From DOJ Regulations
Comment: In the context of discussing
the DOJ’s removal of DHS-specific
provisions from 8 CFR part 1235, at
least one commenter expressed concern
that the rule would eliminate or make
more difficult the parole authority at 8
CFR 235.3(c).
Response: Following the enactment of
the HSA, EOIR’s regulations were
transferred to or duplicated in a newly
created chapter V of 8 CFR, with related
redesignations. See Aliens and
Nationality; Homeland Security;
Reorganization of Regulations, 68 FR
9824, 9830, 9834 (Feb. 28, 2003); see
also Aliens and Nationality; Homeland
Security; Reorganization of Regulations,
68 FR 10349 (Mar. 5, 2003). DOJ
transferred parts of the Code of Federal
Regulations that pertained exclusively
to EOIR from chapter I to chapter V;
duplicated parts of the Code of Federal
Regulations that related to both the INS
and EOIR, which were included in both
chapters I and V; and made technical
amendments to both chapters I and V.
For example, DOJ duplicated all of part
235 in the newly created 8 CFR part
1235 because the Department
determined that ‘‘nearly all of the
provisions of this part affect bond
hearings before immigration judges.’’ 68
FR at 9826. The Departments
anticipated further future adjustments
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and refinements to the regulations in the
future ‘‘to further refine the adjudicatory
process.’’ 68 FR at 9825.
Upon further review, however, DOJ
has determined that 8 CFR 1235.1,
1235.2, 1235.3, and 1235.5 are not
needed in 8 CFR chapter V because they
concern procedures specific to DHS’s
examination of applicants for admission
and are outside the purview of DOJ’s
immigration adjudicators. See 85 FR at
36267. In order to prevent confusion
and reduce the chance of future
inconsistencies with 8 CFR 235.1, 235.2,
235.3, and 235.5, which are not
amended, the rule removes and reserves
8 CFR 1235.1, 1235.2, 1235.3, and
1235.5. Finally, in response to the
commenter’s particular concern, the
Departments note that DOJ does not
make parole determinations, and DHS’s
parole authority in 8 CFR 235.3(c) is
both unaffected by this rule and outside
the scope of the rulemaking generally.
2.4. Reasonable Possibility as the
Standard of Proof for Statutory
Withholding of Removal and TortureRelated Fear Determinations for Aliens
in Expedited Removal Proceedings and
Stowaways
Comment: One organization noted
that the rule would require that those
applying for withholding of removal to
prove a ‘‘reasonable fear’’ of
persecution, which is a higher standard
than that required for asylum. The
organization suggested that the drafters
of the rule were targeting individuals
who are ineligible for asylum and are
thus applying for withholding of
removal only. The organization noted
that a large number of refugees may
meet this criteria due to the
administration’s ‘‘unsuccessful
attempts’’ to impose additional asylum
restrictions on individuals entering the
United States outside a port of entry, as
well as those arriving at the southern
border after passing through third
countries, if they did not apply for
asylum and have their application(s)
rejected in one of those countries.
One commenter alleged that the rule
would ‘‘greatly increase the burden’’ of
individuals eligible only for
withholding of removal or protection
under CAT to succeed in initial
interviews and present their cases
before an immigration judge. The
commenter noted that the rule would
require asylum seekers who would be
subject to a bar on asylum, including
those subject to the ‘‘transit ban’’ found
at 8 CFR 208.13(c)(4)(ii), to meet the
heightened standard in order to have
their cases heard before an immigration
judge. The commenter alleged that the
rule would ‘‘essentially eliminate’’ the
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‘‘significant possibility’’ standard set
forth by Congress in the INA and
replace it with a ‘‘reasonable
possibility’’ standard which is much
harder for asylum seekers to meet. One
organization claimed that, as a result,
‘‘[m]eritorious asylum seekers will be
screened out of the asylum system—a
reality Congress expressly prohibited.’’
One organization claimed that
Congress intended to set a low screening
standard for the credible fear process in
order to aid eligible asylum seekers and
alleged that the NPRM fails to provide
justification for raising this standard.
The organization expressed concern that
asylum officers lack the resources to
‘‘jump’’ from applying the ‘‘significant
possibility’’ standard to the ‘‘reasonable
possibility’’ standard during a brief
interview and also emphasized that
noncitizens are more likely to obtain
counsel in immigration court than in the
initial screening process. One
commenter stated that the rule,
‘‘[u]nrealistically and unconscionably’’
heightens the standard individuals must
meet upon arrival at the border and
limits the protections for individuals
who ‘‘have or would be tortured.’’
One organization emphasized that the
‘‘reasonable possibility’’ standard is
essentially the same burden of proof
used when adjudicating an asylum
application in a full immigration
hearing. The organization claimed,
however, that individuals seeking a fear
determination will almost always have
less evidence and less time to present
their case than individuals in court. As
a result, the organization alleged that
the standard of proof in fear
determinations should be lower than
that used in immigration court hearings.
Another organization criticized the
Departments’ assertion that raising the
screening bar is necessary to ‘‘align’’ the
screening with the burden of proof in
the merits proceeding for each type of
relief. The organization disagreed,
noting that asylum officers must already
consider the merits burden of proof
when screening for fear under existing
law, as they must determine whether
there is a ‘‘significant possibility’’ that
an applicant ‘‘could be eligible’’ for each
type of potential relief. The commenter
asserted that this necessarily entailed a
consideration of the burden of proof to
establish eligibility for those forms of
relief. As a result, the higher screening
burden ‘‘serves only to require more and
stronger evidence before the merits
stage, and at a moment when applicants
are least likely to be able to amass it.’’
One organization noted that many
credible fear applicants are ‘‘profoundly
traumatized, exhausted, terrified,’’ and
unfamiliar with the legal process, and
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emphasized that these individuals will
not have time to gather their thoughts or
collect evidence to support ‘‘highly factspecific inquiries’’ at an interview
screening. Another organization stated
that asylum-seekers are screened in
‘‘exceedingly challenging
circumstances,’’ as well as in cursory
interviews over the telephone. One
organization specifically alleged that the
Departments failed to consider how
trauma affects the fear screening
process, emphasizing research showing
that trauma affects demeanor in ways
that could ‘‘easily affect credibility’’
(nervousness, inability to make eye
contact, etc.). At least one organization
expressed particular concern for LGBTQ
asylum seekers, and another
organization emphasized that arriving
applicants are unrepresented, unlikely
to understand U.S. legal standards, and
may be fearful or reluctant to discuss
their persecution with authorities.
One organization claimed the
Departments have offered no evidence
that the current procedure of using one
standard to screen for any claim for
relief complicates or delays the
expedited removal process, alleging that
this argument is not supported by
government data. The organization
noted that the number of individuals
removed through expedited removal has
increased fairly steadily over the years,
stating that 43 percent of removals
during 2018 were through the expedited
removal process and that this
proportion has not changed over the
past decade. The organization also
asserted there is no evidence that
‘‘requiring asylum officers to evaluate
varying claims relating to the same
group of facts with three different
screens would be simpler,’’ claiming
this would actually make the
determination more complicated.
The organization also disagreed with
the Departments’ suggestion that DOJ’s
language in a previous rule ‘‘imposing
the higher burden to a particular group
in a previous rule supports their
rationale’’ (citing 85 FR at 36270). The
organization emphasized that, in the
previous rule, DOJ applied a higher
screening standard strictly to
individuals ‘‘subject to streamlined
administrative removal processes for
aggravated felons under section 238(b)
of the Act and for [people] subject to
reinstatement of a previous removal
order under section 241(a)(5) of the
Act.’’ Regulation Concerning the
Convention Against Torture, 64 FR
8478, 8485 (Feb. 19, 1999). The
organization claimed DOJ specifically
distinguished that group as different
from the ‘‘broad class’’ of arriving
individuals subject to expedited
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removal, stating that the Departments
offer no explanation for why this ‘‘broad
class’’ can now be treated as a
‘‘narrowly defined class whose members
can raise only one claim.’’ The
organization also accused the
Departments of failing to explain what
authority they used to add to and raise
the statutory burden of proof in
Congress’s ‘‘carefully described credible
fear procedures.’’ INA 235(b), 8 U.S.C.
1225(b).
One organization noted that a U.S.
district court vacated the ‘‘third country
asylum ban regulations’’ on June 30,
2020, see Capital Area Immigrants’
Rights Coalition v. Trump,—
F.Supp.3d—, 2020 WL 3542481 (D.D.C.
2020) and also noted that the Ninth
Circuit upheld a previous injunction
against the rule on July 6, 2020, see E.
Bay Sanctuary Covenant v. Barr, 964
F.3d 832 (9th Cir. 2020). The
organization also referred to a separate
rule that it claimed attempted to ban
asylum for individuals entering the
United States without inspection and
noted that this rule was ‘‘blocked’’ by
two separate district courts. See E. Bay
Sanctuary Covenant v. Trump, 354
F.Supp.3d 1094 (N.D. Cal 2018); O.A. v.
Trump, 404 F. Supp. 3d 109 (D.D.C.
2019). The organization noted that,
based on these cases, it is unclear who
would be eligible for withholding of
removal or CAT only. The organization
concluded by emphasizing that
Congress created the credible fear
standard as a safeguard due to ‘‘the life
or death nature of asylum,’’ and
described the proposed higher
evidentiary standard as ‘‘cruelly
irresponsible.’’
Response: In general, commenters
appear to have confused multiple
rulemakings, as well as the existing
legal differences between and among
asylum, statutory withholding of
removal, and protection under the CAT
regulations. The Departments decline to
adopt the commenters’ positions to the
extent they are based on inaccurate or
confused understandings of the
proposed rule and of the legal
distinctions between and among
asylum, statutory withholding of
removal, and protection under the CAT
regulations.
Contrary to commenters’ claims, the
change of the credible fear standards for
statutory withholding and protection
under the CAT regulations are unrelated
to the Departments’ other asylumrelated regulatory efforts, which are
outside the scope of this rule, and the
current change is not intended to
‘‘target’’ aliens that are not subject to
those previous asylum regulations. See,
e.g., Asylum Eligibility and Procedural
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Modifications, 84 FR 33829 (July 16,
2019); Aliens Subject to a Bar on Entry
Under Certain Presidential
Proclamations; Procedures for
Protection Claims, 83 FR 55934 (Nov. 9,
2018). Further, the change in standards
has no bearing on how any alleged
trauma is assessed during the screening
process by either asylum officers or
immigration judges. Adjudicators in
both Departments have conducted these
assessments for many years and are
trained and well-versed in assessing the
credibility of applicants, including
accounting for any alleged trauma that
may be relevant.
As discussed in the NPRM, Congress
did not require the same eligibility
standards for asylum, statutory
withholding of removal, and protection
under the CAT in the ‘‘credible fear’’
screening process. See 85 FR at 36268–
71. In fact, the INA does not include any
references to statutory withholding of
removal or protection under the CAT
regulations when explaining the
‘‘credible fear’’ screening process. See
INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B);
see also The Foreign Affairs Reform and
Restructuring Act of 1998 (‘‘FARRA’’),
Public Law 105–277, 112 Stat. 2681–
822.
Instead, the Departments have the
authority to establish procedures and
standards for statutory withholding of
removal and protection under the CAT.
See INA 103(a)(1), 8 U.S.C. 1103(a)(1)
(‘‘The Secretary of Homeland Security
shall be charged with the administration
and enforcement of [the INA] and all
other laws relating to the immigration
and naturalization of aliens * * *.’’);
INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A);
FARRA, Public Law 105–277, sec.
2242(b), 112 Stat. at 2681–822
(providing that ‘‘the heads of the
appropriate agencies shall prescribe
regulations to implement the obligations
of the United States under Article 3’’ of
CAT).
Using this authority, the Departments
believe that, rather than being
‘‘unrealistic[ ]’’ or ‘‘unconscionabl[e]’’ as
commenters claim, raising the standards
of proof to a ‘‘reasonable possibility’’
during screening for statutory
withholding of removal and protection
under the CAT regulations better aligns
the initial screening standards of proof
with the higher standards used to
determine whether aliens are in fact
eligible for these forms of protection
when applying before an immigration
judge. Further, as explained in the
NPRM, this higher standard will also
serve to screen out more cases that are
unlikely to be meritorious at a full
hearing, which will allow the
overburdened immigration system to
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focus on cases more likely to be granted.
And, contrary to commenters’ claims,
the NPRM did not claim that the use of
a single ‘‘significant possibility’’
standard complicates or delays the
expedited removal process.
The Departments recognize that a
higher screening standard may make it
more difficult to receive a positive fear
determination. However, the
Departments disagree with commenters
that raising the screening standard for
statutory withholding of removal and
CAT protection will require aliens to
submit significantly stronger
documentary evidence. At the credible
fear interview stage, these claims rest
largely on the applicant’s testimony,
which does not require any additional
evidence-gathering on the applicant’s
part. See, e.g., 8 CFR 208.30(d),
208.30(e)(2) (describing the interview
and explicitly requiring the asylum
officer to make a credible fear
determination after ‘‘taking into account
the credibility of the statements made
by the alien in support of the alien’s
claim’’).
In addition, the Departments have
long used the ‘‘reasonable possibility’’
standard for reasonable fear
determinations made under 8 CFR
208.31 and 8 CFR 1208.31, which cover
certain classes of aliens who are
ineligible for asylum but who are
eligible for statutory withholding of
removal and protection under the CAT
regulations. See 8 CFR 208.31(a),
208.31(c), 1208.31(a), 1208.31(c).18 By
changing the standard in credible fear
interviews for statutory withholding and
CAT protection, asylum officers will
process such claims under the same
standard, providing additional
consistency. Moreover, asylum officers
receive significant training and the
Departments have no concerns that they
will be able to properly apply the
standards set forth in this rule. See 8
CFR 208.1(b) (ensuring training of
asylum officers).
In short, it is both illogical and
inefficient to screen for three potential
forms of protection under the same
standard when two of those forms have
an ultimately higher burden of proof.
The Departments’ rule harmonizes the
screening of the various applications
consistent with their respective ultimate
burdens and ensures that nonmeritorious claims are more quickly
18 Commenters raised concerns about analogizing
the use of the ‘‘reasonable possibility’’ screening
standard in 8 CFR 208.31 and 1208.31, which
applies only to certain categories of aliens.
However, the Departments referenced those
regulations here and in the NPRM merely to show
that the ‘‘reasonable possibility’’ standard has long
existed in other contexts. See, e.g., 85 FR at 36270.
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weeded out, allowing the Departments
to focus more of their resources on
claims likely to have merit.
2.4.1. Specific Concerns With
‘‘Significant Possibility’’ Standard
Comment: One commenter claimed
the rule would make it much harder for
asylum seekers subject to expedited
removal to have their asylum requests
‘‘fully considered’’ by an immigration
judge. The commenter noted that
Congress intentionally set a low
standard—‘‘significant possibility’’—for
the credible fear interview in order to
prevent legitimate refugees from being
deported; one organization noted that
this standard was designed to ‘‘filter out
economic migrants from asylum
seekers.’’ Commenters argued that the
rule’s redefinition of the ‘‘significant
possibility’’ standard as ‘‘a substantial
and realistic possibility of succeeding’’
contradicts the language Congress set
forth in section 235(b)(1)(B)(v) of the
Act, 8 U.S.C. 1225(b)(1)(B)(v) and is
thus ‘‘ultra vires.’’
One organization argued that the
legislative history confirms Congress’s
intent to protect ‘‘bona fide’’ asylum
seekers. The organization cited the
Judiciary Committee report to the House
version of the bill that stated that
‘‘[u]nder this system, there should be no
danger that an alien with a genuine
asylum claim will be returned to
persecution’’ and that ‘‘the asylum
officer should attempt to elicit all facts
relevant to the applicant’s claim.’’ The
organization included a statement from
Senator Orrin Hatch noting that ‘‘[t]he
conference report struck a compromise’’
and the standard adopted was
‘‘intended to be a low screening
standard for admission into the usual
full asylum process.’’
Finally, one organization stated that
there is no ‘‘sliding scale for legal
standards based on the volume of
cases,’’ emphasizing that national
security is irrelevant to the appropriate
legal standard for credible fear. The
organization claimed that raising the
standard in order to ‘‘better secure the
homeland’’ contradicts the clear
meaning of the statute and is ‘‘ultra
vires.’’
Response: Again, commenters appear
to have confused the existing legal
differences between and among asylum,
statutory withholding of removal, and
CAT protection, and the Department
declines to adopt the commenters’
positions to the extent they are based on
inaccuracies or misstatements of law.
The rule does not change the
‘‘significant possibility’’ standard in
credible fear interviews for asylum
claims, which is set by statute. See INA
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235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). As a result, asylum
claims will continue to be processed
under the ‘‘significant possibility’’
standard in credible fear interviews.
Instead, the rule only changes the
standard to a ‘‘reasonable possibility’’
for statutory withholding of removal
and CAT protection claims. Congress
did not address the standards for these
claims in credible fear interviews and
instead explicitly focused on asylum
claims. See generally INA 235(b), 8
U.S.C. 1225(b)(1)(B) (describing asylum
interviews). Therefore, the Departments
are within their authority to change
these standards, as the use of a
‘‘reasonable possibility’’ standard does
not contradict the ‘‘significant
possibility’’ language in the statute,
which only applies to asylum claims.
See generally INA 103(a)(1), 8 U.S.C.
1103(a)(1) (‘‘The Secretary of Homeland
Security shall be charged with the
administration and enforcement of this
chapter and all other laws relating to the
immigration and naturalization of
aliens . . . .’’); INA 103(g)(2), 8 U.S.C.
1103(g)(2) (‘‘The Attorney General shall
establish such regulations . . . as the
Attorney General determines to be
necessary for carrying out this
section.’’).
Moreover, in response to commenters’
concerns about the ‘‘significant
possibility’’ asylum standard in credible
fear proceedings, the Departments note
that this change does not raise the
standard; instead, it merely codifies
existing policy and practice in order to
provide greater clarity and transparency
to adjudicators and affected parties.
USCIS already uses the ‘‘significant
possibility’’ definition in screening
whether an asylum-seeker has
established a credible fear of
persecution. See Memorandum from
John Lafferty, Chief, Asylum Div., U.S.
Citizenship and Immigration Servs.,
Release of Updated Asylum Division
Officer Training Course (ADOTC)
Lesson Plan, Credible Fear of
Persecution and Torture Determinations
2 (Feb. 28, 2014).
This definition is also consistent with
Congress’s intent to create ‘‘a low
screening standard for admission into
the usual full asylum process,’’ 142
Cong. Rec. S11491 (daily ed. Sept. 27,
1996) (statement of Senate Judiciary
Committee Chairman Orrin Hatch), and
with the statutory text. See INA
235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). For example, the
‘‘significant possibility’’ standard does
not require a showing that it is more
likely than not that the applicant can
meet their asylum burden in
immigration court. Instead, the standard
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merely requires the applicant establish
‘‘a substantial and realistic possibility of
succeeding’’ on their asylum claim,
which in turn requires a showing of as
little as a 10 percent chance of
persecution on account of a protected
ground. See I.N.S. v. Cardoza-Fonseca,
480 U.S. 421, 431–32 (1987). This
additional language will help
adjudicators and affected parties to
ensure that the proper screening
standard is used in the credible fear
process.
2.5. Proposed Amendments to the
Credible Fear Screening Process
Comment: One organization claimed
that the rule would essentially combine
the credible fear interview with the
merits hearing and require an asylum
officer to do both simultaneously. The
organization contended that this would
leave applicants who turn themselves in
to CBP with no time to prepare and
‘‘essentially no chance of success.’’ The
organization emphasized that
individuals arriving at the border are
often ‘‘exhausted, stressed out, or ill,’’
noting the high probability that an
individual will be physically,
emotionally, or mentally unfit for an
interview that ‘‘may determine whether
he and his family lives or dies.’’ The
organization claimed this situation has
been aggravated by the COVID–19
pandemic.
One organization stated that some
individuals fleeing persecution and
torture ‘‘bypass CBP’’ because they lack
knowledge about asylum or believe they
will be treated unfairly. The
organization noted that some of these
individuals prepare asylum applications
on their own (either prior or subsequent
to apprehension by ICE) and
emphasized that these cases, which fall
‘‘outside the established procedures,’’
are far more difficult to regulate. The
organization contended that, if the
credible fear and merits interviews are
combined, poor asylum or CAT
protection seekers will be incentivized
to evade CBP in order to try and obtain
help preparing an application. The
organization emphasized that if the
Departments replace the existing
procedure with one that is ‘‘essentially
impossible for many deserving people to
use,’’ their jobs will become more
difficult and their efforts less efficient.
One organization expressed concern
regarding the specific language in
proposed 8 CFR 208.30(d)(1), claiming
that it ‘‘does not pass either simple
humanity or due process.’’ The
organization conceded that the language
of existing 8 CFR 208.30(d)(1) is
identical, but claimed this ‘‘does not
excuse the proposed provision.’’
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Instead, the organization claimed the
language should read as follows: ‘‘[i]f
the [asylum] officer conducting the
interview determines that the alien is
unable to participate effectively in the
interview because of illness, fatigue, or
other impediments, the officer shall
reschedule the interview.’’
One organization also emphasized
that the rule would require asylum
officers to consider bars to asylum,
including the internal relocation bar,19
during initial fear screenings. The
organization alleged that the rule seems
to build off the ‘‘Asylum and Internal
Relocation Guidance’’ issued by USCIS,
which the organization claimed was
posted last summer ‘‘without going
through an NPRM.’’ Another
organization claimed that this portion of
the rule is ‘‘contrary to law and existing
practice,’’ noting that section 235(b) of
the Act, 8 U.S.C. 1225(b), requires
asylum officers to determine whether
there is a ‘‘significant possibility’’ that
an applicant could establish eligibility
for asylum in some future proceeding.
One organization emphasized that most
credible fear applicants are
unrepresented and have difficulty
understanding the complex internal
relocation analysis, noting that asylum
seekers would likely need to include
detailed country conditions materials in
support of their claims. In addition, the
organization claimed that adding ‘‘an
additional research burden’’ on asylum
officers would be inefficient.
One organization noted that the rule
would require asylum officers to
determine whether an applicant is
subject to one of the mandatory bars
under section 208(a)(2)(B)–(D) of the
Act, 8 U.S.C. 1158(a)(2)(B)–(D), and, if
so, whether the bar at issue is also a bar
to statutory withholding of removal and
withholding of removal under CAT. The
organization emphasized that each of
the mandatory bars involves intensive
legal analysis and claimed that requiring
asylum officers to conduct this analysis
during a screening interview would
result in ‘‘the return of many asylum
seekers to harm’s way.’’
Another organization claimed this
portion of the rule is ‘‘unworkable,’’
noting that the mandatory bars are
heavily litigated and often apply
differently from circuit to circuit. The
organization alleged that the new
19 The Departments note that the possibility of
internal relocation is not a mandatory bar to
asylum. Rather, it is part of the underlying asylum
eligibility determination and could rebut a
presumption of a well-founded fear after a finding
of past persecution, or be a reason to find that the
applicant does not have a well-founded fear of
persecution. As it is still a consideration during the
credible fear screening, the Departments address the
comment in the response below.
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credible-fear analysis would require
asylum officers to exceed their statutory
authority and would violate due process
by mandating fact-finding in a
procedure that does not provide
applicants with notice or the
opportunity to respond with evidence.
One organization claimed that
‘‘countless asylum-seekers could be
erroneously knocked out of the process
based on hasty decisions,
misunderstandings, and limited
information,’’ noting that the existing
rule ‘‘errs in favor of review.’’
The organization also expressed
concern that the rule would require
asylum officers to treat an individual’s
silence as a reason to deny an
immigration judge’s review of a negative
credible fear interview. The
organization emphasized that many
asylum seekers do not understand what
is happening when they receive a
negative credible fear determination
from an asylum officer and do not know
what it means to seek review by an
immigration judge; as a result, many
asylum seekers ‘‘will simply not answer
the question.’’ The organization noted
that many of these individuals are still
‘‘tired and traumatized’’ from their
journey, and some have been separated
from their families.
The organization noted that,
historically, asylum officers have been
required to request immigration judge
review on behalf of individuals who
remain silent; however, the organization
alleged that the rule would ‘‘reverse
existing policy’’ and require officers to
indicate that unresponsive individuals
do not want review. The organization
noted that the NPRM does not include
data on how many asylum seekers
succeed in their credible fear claims
before an immigration judge without
specifically making a request to an
asylum officer; nor does the rule contain
data on how many immigration judge
reviews are ‘‘expeditiously’’ resolved
after the judge explains the asylum
seeker’s rights and the individual
chooses not to pursue review. The
organization claimed that its concerns
are enhanced by the decision to allow
CBP officers, rather than fully trained
USCIS asylum officers, to conduct
credible fear interviews. One
organization emphasized that it is
unreasonable to assume that asylum
seekers who decline to expressly request
further review are declining review by
an independent agency. The
organization stated that ‘‘[a]bsent a clear
waiver of the opportunity for review by
an independent agency, it is reasonable
to assume that asylum seekers arriving
at our borders wish to pursue all
available avenues of relief.’’
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One organization noted a statement
from Senator Patrick Leahy, which
introduced a newspaper article that
expressed concern that an unenacted
early version of IIRIRA ‘‘gives virtually
final authority to immigration officers at
300 ports of entry to this country.’’ 142
Cong. Rec. S4461 (daily ed. May 1,
1996) (statement of Senator Patrick
Leahy). The organization also alleged
that ‘‘[g]iving one agency unfettered
power to decide whether an asylum
seeker ever has a day in court goes
against the intent of Congress.’’
Response: In general, most of the
commenters’ concerns are speculative
and fail to account for the fact-specific
and case-by-case nature of the
interviews and reviews in question.
Moreover, their concerns tacitly
question the competence, integrity, and
professionalism of the adjudicators
conducting interviews and reviews—
professionals who are well-trained and
experienced in applying the relevant
law in the context of these screenings
and reviews.
The suggestion that aliens genuinely
seeking refuge regularly evade officials
of the very government from whom they
seek refuge is unsupported by evidence.
Nothing in the rule restricts or prohibits
any organization from providing
assistance to any alien; instead, the
rule’s focus is on assisting adjudicators
with clearer guidance and more efficient
processes.
Additionally, many of the
commenters failed to acknowledge the
multiple layers of review inherent in the
screening process, which reduces the
likelihood of any errors related to
consideration of the facts of the claim or
application of relevant law. See
Thuraissigiam, 140 S.Ct. at 1965–66
(‘‘An alien subject to expedited removal
thus has an opportunity at three levels
to obtain an asylum hearing, and the
applicant will obtain one unless the
asylum officer, a supervisor, and an
immigration judge all find that the
applicant has not asserted a credible
fear.’’). To the extent that commenters
mischaracterized the rule, provided
comments that are speculative or
unfounded, suggested that the
Departments should not follow the law,
or ignored relevant procedural
protections that already address their
concerns, the Departments decline to
adopt such comments.
The Departments disagree that this
rule combines the credible fear
interview with a full hearing on an
asylum application, or that the credible
fear interview represents the ‘‘final’’
adjudication of an asylum application.
This rule maintains the same
‘‘significant possibility’’ standard for
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asylum officers in conducting a credible
fear interview with respect to screening
the alien for eligibility for asylum, and
any alien who is found to have a
credible fear is referred to an
immigration judge for asylum-andwithholding-only proceedings for
consideration of the relief application.
See 8 CFR 208.30(g). This rule does not
change the fundamental structure of the
credible fear process. Instead, during the
credible fear interview, the rule
additionally requires the asylum officer
to consider internal relocation and
relevant asylum bars as part of his or her
determination, and separately to treat
the alien’s failure to request a review of
a negative fear determination as
declining the request.
Regarding commenters’ concerns
about unrepresented aliens having
difficulty with the internal relocation
analysis in the credible fear process, the
Departments note that aliens are able to
consult with a person of their choosing
prior to their credible fear interview and
have that person present during the
interview. See 8 CFR 208.30(d)(4).
Considering internal relocation in the
credible fear screening context is
consistent with existing policy and
practice. See 85 FR 36272. Moreover,
there is no reason to believe that an
alien, in the course of providing
testimony regarding the facts of his or
her claim, cannot also provide
testimony about his or her ability to
internally relocate; in fact, in many
cases, an alien’s relocation is already
part of the narrative provided in support
of the alien’s overall claim. In addition,
the Departments disagree that requiring
asylum officers to consider internal
relocation is inefficient. To the contrary,
as current practice requires such issues
to be adjudicated in section 240 removal
proceedings, screening out cases subject
to internal relocation before requiring a
lengthier proceeding before an
immigration judge is inherently more
efficient. It also has a further salutary
effect of increasing the ability of
adjudicators to address meritorious
claims in a more timely manner. Lastly,
contrary to commenters’ assertions, this
rule is unrelated to USCIS guidance on
internal relocation, and any issues
relating to such guidance are outside the
scope of this rule.
Regarding commenters’ concerns
about requiring asylum officers to
determine whether certain asylum bars
apply during the credible fear interview,
the Departments note that asylum
officers are well trained in asylum law
and are more than capable of
determining whether long-standing
statutory bars apply, especially in the
credible fear screening context. INA
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235(b)(1)(E), 8 U.S.C. 1235(b)(1)(E)
(defining an asylum officer as one who
‘‘has had professional training in
country conditions, asylum law, and
interview techniques comparable to that
provided to full-time adjudicators of
applications under [INA 208, 8 U.S.C.
1158], and . . . is supervised by an
officer who [has had similar training]
and has had substantial experience
adjudicating asylum applications.’’); see
generally 8 CFR 208.1(b) (covering
training of asylum officers).
Moreover, the statute requires asylum
officers to determine whether ‘‘the alien
could establish eligibility for asylum
under section 1158 of this title,’’ which
would by extension include the
application of the bars listed in section
1158 that are a part of this rule. See INA
235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). Further, asylum
officers already assess whether certain
bars may apply to applications in the
credible fear context—they simply do
not apply them under current
regulations. See Government
Accountability Office, Actions Needed
to Strengthen USCIS’s Oversight and
Data Quality of Credible and
Reasonable Fear Screenings at 10 (Feb.
2020), https://www.gao.gov/assets/710/
704732.pdf (‘‘In screening noncitizens
for credible or reasonable fear . . . . [a]
USCIS asylum officer is to determine if
the individual has any bars to asylum or
withholding of removal that will be
pertinent if the individual is referred to
immigration court for full removal
proceedings.’’); U.S. Citizenship and
Immigr. Serv., Lesson Plan on Credible
Fear of Persecution and Torture
Determinations at 31 (2019), https://
fingfx.thomsonreuters.com/gfx/mkt/11/
10239/10146/2019%20training%20
document%20for%20asylum%20
screenings.pdf (‘‘Even though the bars to
asylum do not apply to the credible fear
determination, the interviewing officer
must elicit and make note of all
information relevant to whether a bar to
asylum or withholding applies or not.’’).
Lastly, responding to commenters’
concerns that such determinations
would be ‘‘final,’’ this rule does not
change the existing process allowing for
an immigration judge to review any
negative fear determination, which
would include any bar-related negative
fear determination. 8 CFR 208.30(g); see
also Thuraissigiam, 140 S.Ct. at 1965–
66 (‘‘An alien subject to expedited
removal . . . has an opportunity at three
levels to obtain an asylum hearing, and
the applicant will obtain one unless the
asylum officer, a supervisor, and an
immigration judge all find that the
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applicant has not asserted a credible
fear.’’).
Regarding commenters’ concerns that
aliens do not understand the credible
fear process and, therefore, will refuse
to indicate whether they want an
immigration judge to review their
negative fear finding, the Departments
first note that if an alien requests
asylum or expresses a fear of return, the
alien is given an M–444 notice,
Information about Credible Fear
Interview, which explains the credible
fear process and the right to an attorney
at no cost to the U.S. Government. It
would be unusual for an alien who has
already undergone an interview, relayed
a claim of fear, answered questions from
an asylum officer about his or her claim,
and continued to maintain that he or
she has a genuine fear of being returned
to his or her country of nationality to
then—at the next step—be unaware of
the nature of the process when asked
whether he or she wishes to have
someone else review the claim. The
Departments further note that
regulations require the asylum officer to
ask aliens whether they wish to have an
immigration judge review the negative
credible fear decision. See 8 CFR
208.30(g) (requiring the asylum officer
to ‘‘provide the alien with a written
notice of decision and inquire whether
the alien wishes to have an immigration
judge review the negative decision,
using Form I–869’’). And the relevant
form states, ‘‘You may request that an
Immigration Judge review this
decision.’’ See Form I–869, Record of
Negative Credible Fear Finding and
Request for Review by Immigration
Judge.
These procedures provide explicit
informational protections to individuals
in the credible fear process, and treating
refusals as affirmative requests only
serves to create unnecessary and undue
burdens on the immigration courts.
Although the Departments do not
maintain data on how many individuals
refuse to request immigration judge
review of a negative fear finding, the
Departments believe it is reasonable to
require an individual to answer
affirmatively when being asked by an
asylum officer if the individual wishes
to have their negative fear finding
reviewed.
In response to a commenter’s concern
about 8 CFR 208.30(d)(1), which allows
an asylum officer to reschedule a
credible fear interview under certain
circumstances, the Departments note
that this rule does not change any
language in that subparagraph and,
therefore, any comments regarding that
subparagraph are outside the scope of
this rule.
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3. Form I–589, Application for Asylum
and for Withholding of Removal, Filing
Requirements
3.1. Frivolous Applications
3.1.1. Allowing Asylum Officers To
Make Frivolousness Findings
Comment: Commenters expressed a
range of concerns regarding the
proposed changes to allow DHS asylum
officers to make frivolousness findings
and deny applications or refer
applications to an immigration judge on
that basis. 85 FR at 36274–75.
Commenters expressed concerns
about asylum officers’ training and
qualifications to make frivolousness
findings. For example, at least one
commenter noted that these DHS
officers are not required to earn law
degrees. Another organization disagreed
with the NPRM’s assertion that asylum
officers are qualified to make
frivolousness determinations because of
their current experience making
credibility determinations, emphasizing
that ‘‘credibility and frivolous
determinations differ significantly.’’ At
least one organization noted that the
applicant has the burden of proof in a
credibility determination while the
government bears the burden of proof in
a frivolousness determination.
At least one organization emphasized
that this authority is currently only
vested in immigration judges and the
BIA, and commenters expressed
concern that allowing asylum officers to
make frivolousness findings improperly
changes the role of asylum officers in
the asylum system. For example, one
organization claimed that allowing
asylum officers to make frivolousness
determinations ‘‘improperly changes
their role from considering
humanitarian relief, to being an
enforcement agent.’’ Commenters noted
a law professor’s statement that
‘‘allowing asylum officers to deny
applications conflicts with a mandate
that those asylum screenings not be
adversarial.’’ Suzanne Monyak, Planned
Asylum Overhaul Threatens Migrants’
Due Process, LAW 360 (June 12, 2020),
https://www.law360.com/access-tojustice/articles/1282494/plannedasylum-overhaul-threatens-migrantsdue-process (quoting Professor Lenni B.
Benson).
Commenters suggested that the rule
would not require USCIS to allow
asylum applicants to address
inconsistencies in their claims, alleging
that individuals appearing in nonadversarial proceedings before a DHS
officer would not be granted important
procedural protections. One
organization cited both the U.S. Court of
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Appeals for the Second Circuit and the
BIA to support its claim that a
comprehensive opportunity to be heard
makes sense in the frivolousness
context, noting that immigration
enforcement is not limited to initiating
and conducting prompt proceedings
that lead to removals at any cost. Liu v.
U.S. Dep’t of Justice., 455 F.3d 106, 114
n.3 (2d Cir. 2006); Matter of S–M–J–, 21
I&N Dec. 722, 727, 743 (BIA 1997).
One organization stated that, although
immigration judges would have de novo
review of findings by asylum officers, an
adverse finding is ‘‘always part of the
DHS toolbox’’ in immigration court and
is considered by immigration judges.
Response: As stated in the proposed
rule, the Departments find that allowing
asylum officers to make frivolousness
findings in the manner set out in the
proposed rule and adopted as final in
this rule will provide many benefits to
the asylum process, including
‘‘strengthen[ing] USCIS’s ability to root
out frivolous applications more
efficiently, deter[ing] frivolous filings,
and ultimately reduc[][ing] the number
of frivolous applications in the asylum
system.’’ 85 FR at 36275.
The Departments disagree with
commenters’ allegations that asylum
officers are not qualified or trained to
make frivolousness findings. Instead, all
asylum officers receive significant
specialized ‘‘training in international
human rights law, nonadversarial
interview techniques, and other relevant
national and international refugee laws
and principles’’ and also receive
‘‘information concerning the
persecution of persons in other
countries on account of race, religion,
nationality, membership in a particular
social group, or political opinion,
torture of persons in other countries,
and other information relevant to
asylum determinations.’’ 8 CFR
208.1(b). Moreover, there is no doubt
that asylum officers are qualified to
make significant determinations
regarding asylum claims, including the
most important determination—an
adjudication on the merits regarding
whether or not an alien has
demonstrated eligibility for asylum. See,
e.g., 8 CFR 208.14(c) (‘‘If the asylum
officer does not grant asylum to an
applicant after an interview . . . the
asylum officer shall deny, refer, or
dismiss the application . . . .’’). Given
asylum officers’ authority and
qualifications to make determinations
on the underlying merits of asylum
applications, the Departments find that
they are clearly qualified to make
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subsidiary determinations such as
frivolousness findings.20
Commenters are incorrect that the
Departments analogized credibility
determinations to frivolousness
findings. See 85 FR at 36275. Instead,
the Departments discussed asylum
officers’ credibility findings as
background regarding the mechanisms
currently used by asylum officers to
approach questions similar to those
involving frivolousness. Id.
Nevertheless, the Departments disagree
with commenters’ implication that
asylum officers should not be permitted
to make frivolousness findings because
the government bears the burden of
proof. Not only does the statute not
assign a burden of proof to the
Departments regarding frivolousness
findings, INA 208(d)(6), 8 U.S.C.
1158(d)(6), but for those not in lawful
status, asylum officers’ frivolousness
findings are subject to de novo review
by an immigration judge, and must
simply be sufficiently supported.
Commenters are further incorrect that
allowing asylum officers to make
frivolousness findings improperly
converts the USCIS affirmative
application process from nonadversarial to adversarial. The purpose
of the non-adversarial interview is to
‘‘elicit all relevant and useful
information bearing on the applicant’s
eligibility for asylum.’’ 8 CFR 208.9(b)
(emphasis added). There is nothing
inherently contradictory—or
adversarial—in eliciting all relevant and
useful information regarding an
applicant’s eligibility for asylum and
then determining, based on that
information, that the applicant is
ineligible for asylum because the
applicant knowingly filed a frivolous
application. Moreover, a nonadversarial
process does not mean that the asylum
officer simply has to accept all claims
made by an alien as true; if that were the
case, an asylum officer could never refer
an application based on an adverse
credibility determination. Further,
equating the nonadversarial asylum
interview process with a prohibition on
finding an application to be frivolous is
in tension with statutory provisions
20 Although not strictly applicable to asylum
officers who adjudicate asylum applications under
section 208 of the Act, the Departments note that
the definition of an asylum officer in other contexts
as one who ‘‘has had professional training in
country conditions, asylum law, and interview
techniques comparable to that provided to full-time
adjudicators of applications’’ under section 208 and
is supervised by someone who has had ‘‘substantial
experience’’ adjudication asylum applications
further supports the determination that asylum
officers are well-qualified to make frivolousness
determinations. INA 235(b)(1)(E) (8 U.S.C.
1225(b)(1)(E)).
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allowing adjudicators of asylum
applications to consider, inter alia,
‘‘candor’’ and ‘‘falsehoods’’ in assessing
an applicant’s credibility. INA
208(b)(1)(B)(iii), 8 U.S.C.
1158(b)(1)(B)(iii).
In short, the Departments find that
allowing asylum officers to make
frivolousness findings does not conflict
with the requirement that asylum
officers conduct asylum interviews ‘‘in
a nonadversarial manner.’’ 8 CFR
208.9(b). Instead, asylum officers will
consider questions of frivolousness in
the same manner that they consider
other questions of the applicant’s
eligibility for asylum, such as whether
the applicant has suffered past
persecution or whether the applicant
fears harm on account of a protected
ground. Just as interview questions
about these eligibility factors are
appropriate topics for asylum officers in
the current interview process, questions
and consideration of frivolousness are
similarly appropriate.
Regarding commenters’ concerns
about procedural protections for aliens
who appear before an asylum officer for
an interview, the Departments
emphasize that both the proposed rule
and this final rule prohibit a
frivolousness finding unless the alien
has been provided the notice required
by section 208(d)(4)(A) of the Act, 8
U.S.C. 1158(d)(4)(A) of the
consequences under section 208(d)(6) of
the Act, 8 U.S.C. 1158(d)(6), of filing a
frivolous asylum application. See 8 CFR
208.20(d), 1208.20(d). This requirement
complies with the Act, which does not
require any further warning or colloquy
in advance of a frivolousness finding.
Accordingly, while commenters are
correct that the rule does not require
USCIS to allow asylum applicants to
address inconsistencies prior to a
frivolousness finding or follow any
other delineated procedures, the
Departments reiterate that, as stated in
the proposed rule, the procedural
requirements provided by the rule for a
frivolousness finding comply with the
Act’s requirements. 85 FR at 36276–77.
Further, the Departments emphasize
that, for aliens who lack legal status and
who are referred to an immigration
judge because the asylum officer did not
grant asylum to the alien, see 8 CFR
208.14(c)(1), USCIS asylum officers’
frivolousness findings are not given
effect and are subject to an immigration
judge’s de novo review. 8 CFR
208.20(b). Accordingly, for most, if not
all, aliens who may be subject to a
frivolousness finding by an asylum
officer, this further review is effectively
the procedural protection called for by
commenters, as the alien will be on
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notice regarding the possible
frivolousness finding and should be
prepared to and expect to explain the
issues surrounding it.
The Departments agree with
commenters that DHS trial attorneys in
immigration court may provide
arguments regarding frivolousness in
any appropriate case. However, as also
stated in the proposed rule, the
possibility of frivolousness findings in
immigration court alone has been
insufficient to deter frivolous filings
consistent with the congressional intent
behind section 208(d)(6) of the Act, 8
U.S.C. 1158(d)(6). 85 FR at 36275.
Allowing asylum officers to also
consider and make determinations
regarding whether an affirmative asylum
applicant’s application is frivolous
provides efficiencies not available from
consideration of questions of
frivolousness by an immigration judge
alone, including providing immigration
judges with a more robust and
developed written record regarding
frivolousness. Id.
Finally, to the extent that commenters
suggested the proposed changes should
not be implemented because they would
make it easier to detect asylum fraud
and would harm aliens who submit
fraudulent asylum applications, the
Departments do not find such
suggestions compelling enough to
warrant deleting such changes. See
Angov v. Lynch, 788 F.3d 893, 901, 902
(9th Cir. 2015) (noting ‘‘an unfortunate
reality that makes immigration cases so
different from all other American
adjudications: Fraud, forgery and
fabrication are so common—and so
difficult to prove—that they are
routinely tolerated’’). Cases involving
asylum fraud are ‘‘distressingly
common,’’ id. at 902, and the
Departments are committed to ensuring
the integrity of immigration proceedings
by using all available statutory tools to
root out such fraud.
3.1.2. Changes to the Definition of
‘‘Frivolous’’
Comment: Commenters expressed a
range of concerns with the rule’s
changes to the definition of ‘‘frivolous’’
and the expanded scope of applications
that could qualify as such. One
commenter claimed the rule would
make it easier for immigration judges
and asylum officers to ‘‘throw out’’
asylum requests as frivolous.
At least one commenter noted that,
prior to the enactment of section
208(d)(6) of the Act 8 U.S.C. 1158(d)(6),
a frivolous asylum application was
defined in the employment context as
‘‘manifestly unfounded or abusive’’ and
‘‘patently without substance.’’ 85 FR at
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36274. The commenter concluded that
lowering this standard is ‘‘ultra vires
and an abuse of discretion.’’
Commenters noted that, to be
considered frivolous, an application
must have been ‘‘knowingly made,’’ and
the individual must have been given
notice at the time of filing pursuant to
section 208(d)(4)(A) of the Act 8 U.S.C.
1158(d)(4)(A). Commenters expressed
concern that the NPRM seeks to redefine
the term ‘‘knowingly’’ to include
‘‘willful blindness’’ toward
frivolousness. At least one organization
expressed concern that the NPRM relies
on Global-Tech Appliances, Inc. v. SEB
S.A., 563 U.S. 754, 769 (2011) to
support its definition for ‘‘knowingly,’’
emphasizing that this case ‘‘involved
sophisticated litigants represented by
attorneys familiar with the intricacies of
American patent law’’ and contending
that it would be inappropriate to hold
asylum seekers to this standard.
Commenters stated that the NPRM does
not adequately explain how ‘‘willful
blindness’’ differs from recklessness or
negligence.
At least one organization expressed
concern that the rule removes the
requirements that (1) a fabrication be
deliberate; and (2) the deliberate
fabrication be related to a material
element of the case. The organization
claimed the rule suggests that asylum
seekers who are unaware that an
‘‘essential element’’ is fabricated would
be permanently barred from
immigration benefits. The organization
noted that the NPRM does not define
‘‘essential’’ but instead focuses on
‘‘fabricated material evidence,’’
emphasizing that, given the variance of
standards, courts have held that
‘‘fabrication of material evidence does
not necessarily constitute fabrication of
a material element,’’ quoting Khadka v.
Holder, 618 F.3d 996, 1004 (9th Cir.
2010).
Another organization stated that
while ‘‘[f]alse and fabricated evidence is
inappropriate,’’ poor language skills and
faulty memory can ‘‘produce honest
mistakes that look like falsification,’’
emphasizing that the rule’s definition of
‘‘frivolous’’ provides the Departments
with ‘‘numerous opportunities to
pressure applicants.’’
Commenters expressed particular
concerns with the rule’s changes so that
an application that lacks merit or is
foreclosed by existing law could result
in a frivolousness finding, particularly
because case law involving asylum is
constantly changing. For example, at
least one organization contended that
the rule contradicts existing regulations
regarding a representative’s duty to
advocate for his or her client,
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emphasizing that representatives are
allowed to put forth ‘‘a good faith
argument for the extension,
modification, or reversal of existing law
or the establishment of new law.’’ See
8 CFR 1003.102(j)(1). Similarly,
commenters alleged that the imposition
of a permanent bar on applicants who
raise claims challenging existing law
‘‘deters representatives from putting
forth nuanced arguments,’’ contending
that a representative’s ethical duty to
make every argument on a client’s
behalf could potentially subject the
client to the permanent bar. In addition,
commenters argued that the ability of
attorneys to make good faith arguments
has been ‘‘crucial to modifying and
expanding the law,’’ emphasizing that
good faith arguments by representatives
allow asylum seekers to pursue ‘‘a claim
to the full extent of the law.’’ One
organization stated that, by imposing
penalties on individuals who make good
faith attempts to seek protection ‘‘in
light of contrary law based on different
jurisdictions,’’ the rule ‘‘undoes years of
jurisprudence in this field.’’
Commenters also emphasized that the
rule would expand when the penalties
for a frivolous filing may attach and
would require individuals who wish to
challenge a denial of asylum in Federal
court to risk a finding that would bar
any future immigration relief. One
commenter alleged that, should an
immigration judge find an application to
be frivolous under the rule, the
applicant would be ineligible for all
forms of immigration relief simply for
‘‘making a weak asylum claim.’’ One
organization expressed concern that, as
a result, asylum seekers would not seek
relief for fear of losing their case and
being accused of submitting a frivolous
application. One organization claimed
that the rule’s frivolousness procedure
is designed to ‘‘instill fear in applicants
to keep them from applying.’’ Another
organization emphasized that
expediency is ‘‘inappropriate’’ in the
context of a determination that would
‘‘subject the applicant to one of the
harshest penalties in immigration law.’’
Commenters otherwise emphasized the
seriousness for applicants of
frivolousness findings.
At least one organization called the
rule ‘‘exceptionally unfair,’’
emphasizing that many asylum seekers
are unrepresented and do not speak
English, making it difficult for them to
understand the complexities of ‘‘the
ever-evolving law.’’ The organization
noted that many asylum seekers fall
prey to unscrupulous attorneys or
notarios who file asylum applications
for improper purposes, arguing that it is
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entirely unfair to penalize applicants in
these types of situations.
Finally, at least one organization
claimed that the rule would increase the
workload of immigration judges, as they
would be forced to determine whether
the legal arguments presented sought to
‘‘extend, modify, or reverse the law’’ or
were merely foreclosed by existing law.
The organization argued that, because of
the burdens already placed on
immigration judges, this expectation is
unrealistic and ‘‘adds another layer to
the litigation of referred asylum cases’’
in immigration court.
Response: In general, commenters on
this point either mischaracterized or
misstated the proposed rule or relied
solely on a hypothetical and speculative
‘‘parade of horribles’’ that ignores the
actual text and basis of the rule.
Contrary to commenters’ concerns, the
Departments do not believe that the
proposed rule allows immigration
judges or asylum officers to treat
legitimate asylum requests as frivolous.
Instead, the rule establishes four limited
grounds for a frivolousness finding:
Applications that (1) contain a
fabricated essential element; (2) are
premised on false or fabricated evidence
unless the application would have been
granted absent such evidence; (3) are
filed without regard to the merits of the
claim; or (4) are clearly foreclosed by
applicable law. 8 CFR 208.20(c)(1)–(4),
1208.20(c)(1)–(4). In addition, the rule
provides that an alien ‘‘knowingly files
a frivolous asylum application if . . .
[t]he alien filed the application with
either actual knowledge, or willful
blindness, of the fact that the
application’’ was one of those four
types. 8 CFR 208.20(a)(2), 1208.20(a)(2).
These changes are not ultra vires or an
abuse of discretion. The Departments
emphasize that the regulations interpret
and apply the INA itself, the relevant
provisions of which postdate the
regulation defining frivolous as
‘‘manifestly unfounded or abusive.’’ In
addition, the INA does not define the
term ‘‘frivolous,’’ see INA 208(d)(6), 8
U.S.C. 1158(d)(6), and the Departments
possess the authority to interpret such
undefined terms. See INA 103(a)(3),
(g)(2), 8 U.S.C. 1103(a)(3), (g)(2); see also
Chevron, 467 U.S. at 866 (‘‘When a
challenge to an agency construction of
a statutory provision, fairly
conceptualized, really centers on the
wisdom of the agency’s policy, rather
than whether it is a reasonable choice
within a gap left open by Congress, the
challenge must fail.’’). The Departments
believe that the prior regulatory
definition artificially limited the
applicability of the frivolous asylum bar
because it did not fully address the
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Global-Tech Appliances, Inc., 563 U.S.
at 766 (internal citations omitted); 21 see
also, e.g., United States v. CaraballoRodriguez, 726 F.3d 418 (3d Cir. 2013)
(noting that ‘‘knowledge’’ can be
demonstrated by actual knowledge or
willful blindness.); United States v.
Perez-Melendez, 599 F.3d 31, 41 (1st
Cir. 2010) (‘‘Willful blindness serves as
an alternate theory on which the
government may prove knowledge.’’).
The doctrine of willful blindness
applies in many civil proceedings as
well. See Global-Tech Appliances, 563
U.S. at 768 (‘‘Given the long history of
willful blindness and its wide
acceptance in the Federal Judiciary, we
can see no reason why the doctrine
should not apply in civil lawsuits for
induced patent infringement under 35
U.S.C. 271(b).’’). Given this background,
if Congress did not wish to allow for
willfully blind actions to satisfy the
‘‘knowing’’ requirement of section
208(d)(6) of the Act, 8 U.S.C. 1158(d)(6),
Congress could have expressly provided
a definition of ‘‘knowingly’’ in the Act.
Cf. Perrin v. United States, 444 U.S. 37,
42 (1979) (‘‘A fundamental canon of
statutory construction is that, unless
otherwise defined, words will be
interpreted as taking their ordinary,
contemporary, common meaning.’’)
(citations omitted). Due to Congress’s
silence, however, the Departments find
that the inclusion of willful blindness,
as it is generally interpreted, is a
reasonable interpretation that better
aligns the regulations with
congressional intent to limit and deter
frivolous applications.
Regarding the four grounds for finding
an asylum application frivolous at 8
CFR 208.20(c) and 1208.20(c), the
Departments emphasize that an
application will not be found to be
frivolous unless the alien knew, or was
willfully blind to the fact, that the
application met one of the four grounds.
Accordingly, commenters are incorrect
that an alien who does not know that an
essential element is fabricated will be at
risk of an immigration judge finding that
his or her application is frivolous.
Similarly, an alien who submits a claim
that is clearly foreclosed by the
applicable law but who, as noted by
commenters, does not know that the
claim is so clearly foreclosed, would not
have his or her claim found frivolous on
that basis.22
The Departments disagree that the
rule will enable the Departments to
‘‘pressure’’ applicants who make
mistakes of fact in the context of their
application. Two of the bases related to
fabricated elements or evidence, neither
of which can be characterized
appropriately as a mistake of fact. The
other two bases go to the merits of the
case or to applicable law, and neither of
those turn on a mistake of fact.
One commenter expressed concern
about the NPRM’s proposed change, in
the context of the definition of frivolous,
from a fabricated ‘‘material’’ element to
a fabricated ‘‘essential’’ element. The
existing regulatory text provides that
‘‘an asylum application is frivolous if
any of its material elements is
deliberately fabricated’’; under the
NPRM, an application that contained a
fabricated ‘‘essential element’’ might
have been found frivolous. The
Departments acknowledge that the
NPRM indicated that it was maintaining
the prior definition of ‘‘frivolous,’’
which was premised on a fabricated
‘‘material’’ element, 85 FR at 36275, but
then used the word ‘‘essential’’ in lieu
of ‘‘material’’ in the proposed regulatory
text itself. Although the Departments do
not perceive a relevant difference
between the two phrasings, they are
reverting to the use of ‘‘material’’ in this
context in the final rule to avoid any
confusion.
21 The Departments disagree with commenters’
concerns that Global-Tech is an inappropriate case
to cite given the complexity of the underlying
dispute. Instead, this case provides a clear and
concise summary of the willful blindness standard,
which is separate and apart from the underlying
facts or adjudication.
22 As 85 percent of asylum applicants in
immigration proceedings have representation, the
likelihood of an alien alone knowingly making an
argument that is foreclosed by law is relatively low
as both a factual and legal matter. See EOIR, Current
Representation Rates (Oct. 13, 2020), https://
www.justice.gov/eoir/page/file/1062991/download.
different types of frivolousness, such as
abusive filings, filings for an improper
purpose, or patently unfounded filings.
Regarding the inclusion of willful
blindness in determining what
applications will be considered
knowingly frivolous, the Departments
reiterate that the inclusion of a willful
blindness standard as part of a
‘‘knowing’’ action is consistent with
long-standing legal doctrine:
The doctrine of willful blindness is well
established in criminal law. Many criminal
statutes require proof that a defendant acted
knowingly or willfully, and courts applying
the doctrine of willful blindness hold that
defendants cannot escape the reach of these
statutes by deliberately shielding themselves
from clear evidence of critical facts that are
strongly suggested by the circumstances. The
traditional rationale for this doctrine is that
defendants who behave in this manner are
just as culpable as those who have actual
knowledge. . . . It is also said that persons
who know enough to blind themselves to
direct proof of critical facts in effect have
actual knowledge of those facts. . . .
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Finally, commenters were particularly
concerned about the frivolousness
grounds covering claims that lack merit
or are foreclosed by existing law.
However, commenters’ concerns are not
based on the actual rule. As explained
in the NPRM, an unsuccessful claim
does not mean that the claim is
frivolous. See 85 FR at 36273–77. For
example, arguments to extend, modify,
or reverse existing precedent are not a
basis for a frivolousness finding under
the ‘‘clearly foreclosed by applicable
law’’ ground. 85 FR at 36276. Similarly,
as discussed supra, both the relatively
low numbers of pro se asylum
applicants in immigration court
proceedings and the requirement that a
frivolous asylum application be
‘‘knowingly’’ filed will likely make
frivolousness findings uncommon for
pro se aliens under the ‘‘clearly
foreclosed by applicable law’’ ground.
Moreover, the proposed definition is
fully consistent with the long-standing
definition of ‘‘frivolous’’ behavior as
applied in the context of practitioner
discipline. See 8 CFR 1003.102(j)(1) (‘‘A
practitioner engages in frivolous
behavior when he or she knows or
reasonably should have known that his
or her actions lack an arguable basis in
law or in fact, or are taken for an
improper purpose, such as to harass or
to cause unnecessary delay.’’). In other
words, the bases for finding an asylum
application frivolous do not limit
ethical attorneys’ conduct in the manner
described by commenters.
As some commenters noted, however,
some aliens may hire unscrupulous
representatives or notarios who file
applications for improper purposes.
While the Departments are sympathetic
to aliens who are victims of these
unethical practices, the Departments
note that, as described below in Section
II.C.3.2 of this preamble, aliens must
sign each asylum application attesting
to the application’s accuracy and
acknowledging the consequences of
filing a frivolous application; moreover,
‘‘[t]he applicant’s signature establishes a
presumption that the applicant is aware
of the contents of the application.’’ 8
CFR 208.3(c)(2), 1208.3(c)(2). An alien
may later file a motion to reopen
premised on ineffective assistance of
counsel 23 or pursue other subsequent
avenues of redress against unscrupulous
individuals, but the Departments find
that an alien should not automatically
be immune from the consequences of an
asylum application he or she held out
23 See Matter of Lozada, 19 I&N Dec. 637 (BIA
1988) (setting out requirements for motions to
reopen due to ineffective assistance of counsel
allegations).
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as accurate.24 To offer such immunity
would create moral hazard. It would
encourage aliens not to read or
familiarize themselves with the contents
of their applications, thereby subverting
both the efficiency and accuracy of
asylum adjudications. Moreover, the
requirement that a frivolous asylum
application be ‘‘knowingly’’ filed also
ensures that only genuinely culpable—
or co-conspirator—aliens will face the
full consequences associated with these
unethical practices. Cf. United States v.
Phillips, 731 F.3d 649, 656 (7th Cir.
2013) (‘‘It is careless to sign a document
without reading it, but it is a knowing
adoption of its contents only if the
signer is playing the ostrich game
(‘willful blindness’), that is, not reading
it because of what she knows or
suspects is in it.’’).
The Departments disagree that the
changes, including consideration of
legal arguments regarding whether an
asylum application was premised on a
claim that was foreclosed by existing
law, will increase the workload of
immigration judges. As an initial point,
immigration judges are already
accustomed to both making
frivolousness determinations and to
assessing whether claims are foreclosed
by applicable law; indeed, immigration
judges are already required to apply
precedent in asylum cases, even when
a frivolousness finding is not at issue.
Thus, the intersection of those two
streams of decision making does not
represent any additional adjudicatory
burden. Further, the rule does not
mandate that immigration judges make
a determination in all cases, and many
cases will not factually or legally lend
themselves to a need to wrestle with
close calls and complex determinations
of whether an application was ‘‘clearly
foreclosed by applicable law’’ due to the
rest of the context of the application or
the case. Finally, commenters also failed
to consider that the direct inclusion of
applications that are clearly foreclosed
by applicable law as a possible basis for
frivolousness findings may cause
secondary efficiencies by
24 The Departments further note that purposefully
filing meritless asylum applications, including for
the purposes of causing DHS to initiate removal
proceedings, violates the EOIR rules of professional
conduct and constitutes behavior that may result in
professional sanctions. See In re Bracamonte, No.
D2016–0070 (July 1, 2020), https://www.justice.gov/
eoir/page/file/1292646/download (entering into a
settlement agreement with a practitioner who
‘‘acknowledges that it was improper to file asylum
applications without an indicated basis for asylum
or an indication as to any asylum claim, to cancel
or otherwise advise clients to fail to appear for
asylum interviews, and to not demonstrate a clear
intention to pursue an asylum claim, in order to
cause DHS to issue a Notice to Appear to his
clients’’).
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disincentivizing the filing of meritless
asylum applications in the first
instance—applications that already take
up significant immigration court
resources.
3.1.3. Other Concerns With Regulations
Regarding Frivolous Applications
Comment: Commenters expressed
concern with the rule’s changes to the
procedural requirements that must be
satisfied before an immigration judge
may make a frivolousness finding. For
example, commenters noted that the
rule would allow immigration judges to
make frivolousness findings without
providing an applicant with additional
opportunities to account for perceived
issues with his or her claim. Similarly,
an organization alleged that immigration
judges would not have to provide an
opportunity for applicants to
meaningfully address the frivolousness
indicators found by an asylum officer.
Commenters stated that the rule
conflicts with Matter of Y–L–, 24 I&N
Dec. at 155, emphasizing that the NPRM
only requires that applicants be
provided notice of the consequences of
filing a frivolous application. At least
one organization claimed the rule, by
not requiring immigration judges to first
provide an opportunity to explain,
assumes that ‘‘applicants know what a
judge would consider ‘meritless’ or
implausible.’’ The organization
contested the NPRM’s assertion that an
asylum applicant ‘‘already . . . knows
whether the application is . . .
meritless and is aware of the potential
ramifications,’’ claiming instead that
applicants often lack a sophisticated
knowledge of immigration law. See 85
FR at 36276.
Response: As stated in the proposed
rule, the only procedural requirement
Congress included in the Act for a
frivolousness finding is the notice
requirement at section 208(d)(4)(A) of
the Act, 8 U.S.C. 1158(d)(4)(A). 85 FR at
36276. In addition, the asylum
application itself provides notice that an
application may be found frivolous and
that a frivolousness finding results in
significant consequences. Id. The law is
clear on this point. See, e.g., Niang v.
Holder, 762 F.3d 251, 254–55 (2d Cir.
2014) (‘‘Because the written warning
provided on the asylum application
alone is adequate to satisfy the notice
requirement under 8 U.S.C.
1158(d)(4)(A) and because Niang signed
and filed his asylum application
containing that warning, he received
adequate notice warning him against
filing a frivolous application.’’). Thus,
every alien who signs and files an
asylum application has received the
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notice required by section 208(d)(4)(A)
of the INA, 8 U.S.C. 1158(d)(4)(A).
Accordingly, commenters are correct
that the rule’s changes allow
immigration judges to make
frivolousness findings without the
procedural requirements required by the
current regulation and attendant case
law. But the regulation and case law are
not required by the Act, and have not
been successful in preventing the filing
of frivolous applications. To the extent
commenters are correct that the rule
conflicts with Matter of Y–L–, that
decision is premised on the existing
regulatory language that the
Departments are revising. Thus, as the
Departments noted in the proposed rule,
this rule would overrule Matter of Y–L–
and any other cases that rely on the
same reasoning or now-revised
regulatory language. 85 FR at 36277.
Comment: At least one organization
expressed its belief that DHS could
institute frivolousness procedures more
directly related to DHS’s adjudication of
employment authorization requests
(‘‘EADs’’). For example, the commenter
noted that there is ‘‘no explanation’’ for
why DHS cannot simply conduct a
prima facie review of an I–589 filing
prior to granting an EAD application or
scheduling the I–589 interview. The
organization claimed that, if the concern
is the time and expense dedicated to
‘‘clearly fraudulent’’ applications, DHS
could devise a policy to screen for
indicators that the application itself
lacks merit or supporting
documentation. The organization
contended that DHS does this with
other benefit applications and is not
prohibited from issuing Requests for
Evidence or Notices of Intent to Deny to
affirmative asylum applicants prior to
an interview.
Response: Although the Departments
appreciate this comment and DHS may
evaluate it further as an additional
avenue to protect the integrity of the
asylum adjudication process, the
Departments find that the changes set
out in the proposed rule better align
with congressional intent and are more
efficient than a secondary process tied
to the adjudication of EADS. Divorcing
the question of frivolousness from the
underlying adjudication of the
application itself would potentially
undermine Congress’s clear direction
that aliens face consequences for filing
frivolous asylum applications. INA
208(d)(6), 8 U.S.C. 1158(d)(6). Moreover,
asylum officers and immigration judges,
the officials in the asylum system who
are trained to review and adjudicate
applications for asylum, are best
positioned to make the sorts of
determinations that the commenter
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suggests should instead be made by the
DHS officials adjudicating EAD
requests.
Comment: At least one organization
alleged that the rule, ‘‘perhaps
recognizing its own harshness,’’ claims
to ‘‘ameliorate the consequences’’ by
allowing applicants to withdraw their
application(s) before the court with
prejudice, accept a voluntary departure
order, and leave the country within 30
days. The organization contended that,
rather than ameliorating the
consequences of a frivolous filing, these
measures essentially replicate them in
severity and permanence.
Response: Despite commenters’
concerns, the Departments emphasize
that this option to avoid the
consequences of a frivolousness finding
is a new addition to the regulations and
provides applicants with a safe harbor
not previously available. The
Departments believe that the conditions
are strict but reasonable and fair when
compared with the alternative: The
severe penalty for filing a frivolous
application, as recognized by Congress
at section 208(d)(6) of the Act, 8 U.S.C.
1158(d)(6). Further, the Departments
disagree that the consequences of
withdrawing an application are of the
same severity as a frivolousness finding
because an alien who withdraws an
application will be able to leave the
United States without a removal order
and seek immigration benefits from
abroad, while an alien who is found to
have submitted a frivolous application
is ‘‘permanently ineligible for any
benefits’’ under the Act. INA 208(d)(6),
8 U.S.C. 1158(d)(6).
Comment: One organization
emphasized that, although the NPRM
claims that broadening the definition of
frivolous would root out ‘‘unfounded or
otherwise abusive claims,’’ the NPRM
does not include any evidence of large
numbers of pending frivolous
applications.
Response: Congress laid out
consequences for filing a frivolous
asylum application at section 208(d)(6)
of the Act, 8 U.S.C. 1158(d)(6),
demonstrating the importance of the
issue. There is no precise data threshold
for a regulation that implements a clear
statutory priority. Moreover, Federal
courts have recognized both the extent
of asylum fraud and the fact that the
Government does not catch all of it.
Angov, 788 F.3d at 902 (‘‘Cases
involving fraudulent asylum claims are
distressingly common. . . . And for
every case where the fraud is discovered
or admitted, there are doubtless scores
of others where the petitioner gets away
with it because our government didn’t
have the resources to expose the lie.’’).
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Indeed, as the Departments noted in the
NPRM, the prior definition did not
adequately capture the full spectrum of
claims that would ordinarily be deemed
frivolous, 85 FR at 36274, making
statistics based on the prior definition
either misleading or of minimal
probative value.
The Departments note the record
numbers of asylum applications filed in
recent years, including 213,798 in Fiscal
Year 2019, up from the then-previous
record of 82,765 in Fiscal Year 2016.
EOIR, Total Asylum Applications (Oct.
13, 2020), https://www.justice.gov/eoir/
page/file/1106366/download. Given this
significant increase in applications—
which almost certainly means an
increase in frivolous applications—and
the corresponding increase in
adjudications, the Departments believe
it is important to ensure the regulations
best reflect congressional intent and
deter the submission of frivolous
applications that delay the adjudication
of meritorious cases.
Comment: Another organization
expressed particular concern for
children seeking asylum, noting that,
although the TVPRA requires
unaccompanied children’s claims to be
heard by asylum officers, the rule’s
expansion of a ‘‘frivolous’’ claim would
result in the denial of meritorious
claims for children who are
unrepresented and ‘‘unable to decipher
complex immigration law.’’ The
organization contended that, because
the rule would permit asylum officers
who determine that a child’s claim is
‘‘frivolous’’ to refer the case to
immigration court without examining
the merits of the claim, unaccompanied
children ‘‘would be forced into
adversarial proceedings before an
immigration judge in clear violation of
the TVPRA and in a manner that would
subject them to all of the harms
attendant to adversarial hearings where
there is no guarantee of representation.’’
Similarly, at least one organization
emphasized that the ‘‘safety valve’’ of
allowing children to accept withdrawal
conditions to avoid the consequences of
a frivolousness finding is illusory, and
may pressure children to waive valuable
rights.
Response: Again, the Departments
note that these concerns generally are
not rooted in any substantive evidence
and either mischaracterize or misstate
the proposed rule. The Departments
find the safeguards in place for allowing
asylum officers to make a finding that
an asylum application is frivolous are
sufficient to protect unaccompanied
alien children (‘‘UAC’’) in the
application process. Even if an asylum
officer finds an application is frivolous,
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the application is referred to an
immigration judge who provides review
of the determination. The asylum
officer’s determination does not render
the applicant permanently ineligible for
immigration benefits unless the
immigration judge or the BIA also make
a finding of frivolousness. Id. Further,
asylum officers and immigration judges
continue to use child-appropriate
procedures taking into account age,
stage of language development,
background, and level of
sophistication.25 Finally, to be found
frivolous, an application must be
knowingly filed as such, and the
Departments anticipate that very young
UACs will typically not have the
requisite mental state to warrant a
frivolousness finding.
Comment: At least one commenter
appeared to express concern that the
rule includes all applications submitted
after April 1, 1997, as those which could
potentially be deemed frivolous.
Response: To the extent the
commenter is concerned about frivolous
applications in general dating back to
April 1, 1997, the Departments note that
DOJ first implemented regulations
regarding frivolous asylum applications
on March 6, 1997, effective April 1,
1997. Inspection and Expedited
Removal of Aliens; Detention and
Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 FR
10312, 10344 (Mar. 6, 1997). The April
1, 1997 effective date was enacted by
Congress in 1996 through IIRIRA. See
IIRIRA, Public Law 104–208, sec. 604(a),
110 Stat. 3009, 3009–693. Thus, all
asylum applications filed on or after
April 1, 1997, have been subject to a
potential penalty for frivolousness for
many years.
The NPRM made clear, however, that
the new regulatory definition of
frivolous applies only to applications
filed 26 on or after the effective date of
the final rule. To provide further
clarification on this point, the
Departments made several nonsubstantive edits to the regulatory text at
8 CFR 208.20 and 8 CFR 1208.20 in the
final rule to clarify the temporal
applicability of the existing definition of
frivolousness and the prospective
application of the definition contained
in the rule. Thus, the commenters
apparent retroactivity concerns about
the definition of a frivolous application
have been addressed. For further
25 For further discussion of the intersection of the
rule and the TVPRA, see section II.C.6.10.
26 This includes applications filed in connection
with a motion to reopen on or after the effective
date of the rule or applications filed on or after the
effective date of the rule after proceedings have
been reopened or recalendared.
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discussion of the rule’s retroactive
applicability, see Section II.C.7 of this
preamble.
3.2. Pretermission of Legally Insufficient
Applications
3.2.1. Pretermission and the INA
Comment: Commenters stated that
allowing immigration judges to
pretermit applications conflicts with
multiple sections of the INA and is not
a ‘‘reasonable’’ interpretation of the
INA.
Commenters cited section 208(a)(1) of
the Act, 8 U.S.C. 1158(a)(1), alleging
that the phrase ‘‘may apply for asylum’’
should be broadly construed.
Commenters also noted that the statute
requires the establishment of a
procedure for considering asylum
applications. INA 208(d)(1), 8 U.S.C.
1158(d)(1). Commenters claimed that
allowing for the pretermission of asylum
applications does not satisfy this
required procedure and is an
‘‘unreasonable interpretation’’ of the
statute.
Commenters stated that the rule
violates section 240(b)(1) of the Act, 8
U.S.C. 1229a(b)(1), which states that
‘‘[t]he immigration judge shall
administer oaths, receive evidence, and
interrogate, examine, and cross-examine
the alien and any witnesses.’’
Commenters stated that the rule violates
this requirement by ‘‘requiring
immigration judges to abandon their
essential function of examining the
noncitizen about their application for
relief.’’
Similarly, commenters stated that the
rule violates section 240(b)(4)(B) of the
Act, 8 U.S.C. 1229a(b)(4)(B), which
states that ‘‘the alien shall have a
reasonable opportunity to examine the
evidence against the alien, to present
evidence on the alien’s own behalf, and
to cross-examine witnesses presented by
the Government.’’ Commenters believe
the rule violates this provision because
it denies aliens the ability to present
and examine evidence on their own
behalf, including their own credible
testimony.
Finally, commenters stated that the
rule violates section 240(c)(4) of the Act,
8 U.S.C. 1229a(c)(4), which states that,
inter alia, ‘‘the immigration judge shall
weigh the credible testimony along with
other evidence of record’’ when
determining whether an alien has met
his or her burden of proof on an
application for relief. INA 240(c)(4)(B),
8 U.S.C. 1229a(c)(4)(B).
Commenters also disagreed with the
Departments that allowing
pretermission of applications would not
conflict with the legislative history of
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IIRIRA. See 85 FR at 36277 n.26 (noting
statements in H.R. Rep. No. 104–469,
part 1 (1996) regarding balancing the
need for the alien to provide sufficient
information on the application with the
need for the alien’s application to be
timely). Commenters stated that the rule
creates additional burdens for aliens
with regard to submission and
preparation of the Form I–589.
Response: Allowing pretermission of
asylum applications in the manner set
out in this rule does not violate the INA.
As an initial point, the regulations have
long allowed immigration judges to
pretermit asylum applications when
certain grounds for denial exist. See 8
CFR 1240.11(c)(3).27 Additionally,
courts have affirmed the pretermission
of legally deficient asylum applications.
See, e.g., Zhu v. Gonzales, 218 F. App’x
21, 23 (2d Cir. 2007) (‘‘Here, the IJ
alerted Zhu early in the proceedings
that his asylum claim might be
pretermitted if he failed to illustrate a
nexus to a protected ground, and
granted him a 30-day continuance in
which to submit a brief addressing the
nexus requirement. When Zhu had
neither submitted a brief, nor requested
an extension of the deadline, after
nearly 60 days, the IJ acted within his
discretion in pretermitting the asylum
claim.’’). As discussed further below,
the pretermission of legally deficient
asylum applications is consistent with
existing law, and immigration judges
already possess authority to take any
action consistent with their authorities
under the law that is appropriate and
necessary for the disposition of cases, 8
CFR 1003.10(b), to generally take any
appropriate action consistent with
applicable law and regulations, id.
1240.1(a)(1)(iv), and to regulate the
course of a hearing, id. 1240.1(c).
Accordingly, the authority of an
immigration judge to pretermit an
asylum application is well-established
even prior to the proposed rule.28
27 The text of 8 CFR 1240.11(c)(3) references, inter
alia, the mandatory denial of an asylum application
pursuant to 8 CFR 1208.14. In turn, 8 CFR
1208.14(a) references 8 CFR 1208.13(c), which lists
the specific grounds for the mandatory denial of an
asylum application, including those listed in INA
208(a)(2) and (b)(2) (8 U.S.C. 1158(a)(2) and (b)(2)).
Some of those grounds may require a hearing to
address disputed factual issues, but some involve
purely legal questions—e.g. INA 208(b)(2)(A)(ii) and
(B)(i) (8 U.S.C. 1158(b)(2)(A)(ii) and (B)(i)) (an alien
convicted of an aggravated felony is ineligible for
asylum)—and, thus, may be pretermitted without a
hearing.
28 The National Association of Immigration
Judges (‘‘NAIJ’’), the union which formerly
represented non-supervisory immigration judges,
opposed the rule on general grounds but did not
take a position on this specific provision. A. Ashley
Tabadorr, Comment by the National Association of
Immigration Judges, (July 15, 2020), https://
www.naij-usa.org/images/uploads/newsroom/
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Further, regarding sections 208(a)(1)
and 208(d)(1) of the Act, 8 U.S.C.
1158(a)(1) and (d)(1), nothing in the rule
regarding the pretermission of
applications affects the ability of aliens
to apply for asylum, and this rule adds
to the already robust procedures in
place for the consideration and
adjudication of applications for asylum.
Instead, pretermission establishes an
efficiency for the adjudication of
applications for asylum that have been
submitted for consideration and is
utilized in a similar fashion as summary
decision is used in other DOJ
immigration-related proceedings, see 28
CFR 68.38, and as summary judgment is
used in Federal court proceedings, see
Fed. R. Civ. P. 56.
Similarly, pretermission of asylum
applications in the manner set out in
this rule does not violate any provision
of section 240 of the Act, 8 U.S.C.
1229a. First, section 240(b)(1) of the Act,
8 U.S.C. 1229a(b)(1), authorizes
immigration judges to ‘‘interrogate,
examine, and cross-examine the alien
and any witnesses’’ but does not
establish a mandatory requirement for
them to do so in every case on every
application or issue. Further, it is settled
law that immigration judges may
pretermit applications for relief in other
contexts. See, e.g., Matter of J–G–P–, 27
I&N Dec. 642, 643 (BIA 2019)
(explaining that the immigration judge
granted DHS’s motion and pretermitted
the respondent’s application for
cancellation of removal due to the
respondent’s disqualifying criminal
conviction); Matter of Moreno-Escobosa,
25 I&N Dec. 114 (BIA 2009) (reviewing
questions of eligibility for a waiver of
inadmissibility under former section
212(c) of the Act (8 U.S.C. 1182(c)
(1994)) following an immigration
judge’s pretermission of the
respondent’s application). Second, the
rule allows the applicant a ‘‘reasonable
opportunity’’ to present evidence on his
or her own behalf before pretermission
as an immigration judge would not
pretermit an application without either
the time expiring for the alien to
respond to DHS’s motion or the judge’s
notice. Similarly, the alien would be
afforded the opportunity to present
evidence, including written testimony,
on their own behalf prior to an
immigration judge’s decision to
pretermit an application, in accordance
with section 240(b)(4)(B) and (c)(4) of
2020.07.15.00.pdf (‘‘NAIJ’s comment to the
proposed rulemaking takes no position on what the
law should be or how it is to be interpreted.’’).
Nevertheless, individual immigration judges have,
on occasion, pretermitted legally-deficient asylum
applications even prior to the issuance of the
proposed rule.
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the Act, 8 U.S.C. 1229a(b)(4)(B) and
(c)(4).
Regarding the legislative history of
IIRIRA, the Departments find that
allowing pretermission in the manner
set out in the proposed rule and this
final rule does not conflict with the
legislative history of IIRIRA. First,
regarding the statement in the House
report cited in the proposed rule, the
Departments note that at that point, the
House legislation would have imposed
a 30-day filing deadline for asylum
applications. See H.R. Rep. No. 104–
469, pt. 1, at 259 (1996). Accordingly,
the Departments find that congressional
statements suggesting lower
requirements for specificity in an
asylum application were based on a
concomitant suggestion that an
application should be filed within 30
days and were correspondingly obviated
by the longer one-year filing deadline
ultimately enacted by IIRIRA. INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B).
Second, there is no discussion in the
IIRIRA conference report that similarly
encourages a condensed application for
the sake of expediency. See generally
H.R. Rep. No. 104–828 (1996)
(conference report). Finally, the
Departments reiterate that, as stated in
the proposed rule, the alien would only
be expected to provide ‘‘enough
information to determine the basis of
the alien’s claim for relief and if such a
claim could be sufficient to demonstrate
eligibility.’’ 85 FR at 36277 n.26. Indeed,
the Departments expect that aliens who
complete the Form I–589, Application
for Asylum and for Withholding of
Removal, in accordance with the
instructions and provide all information
requested by the form would provide
sufficient information for the prima
facie determination, just as it does in the
context of a motion to reopen. See INS
v. Abudu, 485 U.S. 94, 104 (1988)
(‘‘There are at least three independent
grounds on which the BIA may deny a
motion to reopen. First, it may hold that
the movant has not established a prima
facie case for the underlying substantive
relief sought.’’) Further, an alien would
be able to provide additional
information as desired in response to
the DHS motion or immigration judge
notice regarding possible pretermission.
In short, a requisite prima facie showing
for an asylum application is not an
onerous burden, and the Departments
disagree with the commenter that
allowing pretermission presents any
additional mandatory burden on the
alien beyond that which is already
required by the asylum application
itself.
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3.2.2. Pretermission and the Regulations
Comment: Commenters stated that
allowing pretermission of applications
in the manner set out in the proposed
rule violates the other regulatory
provisions, including 8 CFR 1240.1(c), 8
CFR 1240.11(c)(3), and 8 CFR
1240.11(c)(3)(iii). Regarding 8 CFR
1240.1(c) (‘‘The immigration judge shall
receive and consider material and
relevant evidence . . . .’’), commenters
noted that pretermission would
foreclose consideration of an asylum
seeker’s testimony, which is often one of
the most important pieces of evidence,
as well as witness testimony. Regarding
8 CFR 1240.11(c)(3) (‘‘Applications for
asylum and withholding of removal so
filed will be decided by the immigration
judge . . . after an evidentiary hearing
to resolve factual issues in dispute.’’),
commenters emphasized the
regulation’s requirement that an
immigration judge’s decision be made
‘‘after an evidentiary hearing’’ and noted
that the factual and legal issues in an
asylum claim are often interconnected.
Regarding 8 CFR 1240.11(c)(3)(iii)
(‘‘During the removal hearing, the alien
shall be examined under oath on his or
her application and may present
evidence and witnesses in his or her
own behalf’’), commenters stated that
pretermission would deprive the alien
of the opportunity to meet his or her
burden of proof through testimony,
which may be sufficient for the alien to
sustain the burden of proof without
corroboration.
Commenters stated that allowing
pretermission would make into
surplusage the provisions of the
regulations regarding the authority of
the immigration judge to consider
evidence (8 CFR 1240.11(c) and control
the scope of the hearing (c)(3)(ii)).
Response: Allowing pretermission of
asylum applications that fail to
demonstrate a prima facie claim for
relief or protection in the manner set out
in the proposed rule and this final rule
does not violate other provisions of the
Departments’ regulations. As stated in
the proposed rule, ‘‘[n]o existing
regulation requires a hearing when an
asylum application is legally deficient.’’
85 FR at 36277. Commenters’ arguments
to the contrary misconstrue the
regulatory framework. The Departments
agree that an alien’s testimony may be
important evidence for a case. See, e.g.,
Matter of Mogharrabi, 19 I&N Dec. 439,
445 (BIA 1987) (‘‘The alien’s own
testimony may in some cases be the
only evidence available, and it can
suffice where the testimony is
believable, consistent, and sufficiently
detailed to provide a plausible and
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coherent account of the basis for his
fear.’’).29 But in cases where it is clear
from the fundamental bases of the
alien’s claim that the claim is legally
deficient and the alien will not be able
to meet his or her burden of proof,
regardless of the additional detail or
specificity that the alien’s testimony
may provide, such testimony is not
material or relevant and is not needed
for the judge to be able to make a
determination that the application is
legally insufficient.30
Further, the rule does not conflict
with the specific regulatory sections
cited by the commenters. To the
contrary, as discussed, supra, the rule is
fully consistent with an immigration
judge’s existing authority to take any
action consistent with their authorities
under the law that is appropriate and
necessary for the disposition of cases, 8
CFR 1003.10(b), to generally take any
appropriate action consistent with
applicable law and regulations, id.
1240.1(a)(1)(iv), and to regulate the
course of a hearing, id. 1240.1(c).
Further, the rule does not affect the
instruction at 8 CFR 1240.1(c) for
immigration judges to consider material
and relevant evidence. If a case presents
a prima facie claim, the case will
proceed through the adjudicatory
process consistent with current practice,
including the submission and
consideration of whatever material and
relevant evidence is included in the
record. Similarly, in that adjudication,
the alien would be examined and
allowed to present evidence and
witnesses, consistent with 8 CFR
1240.11(c)(3)(iii). Finally, those
applications that present a prima facie
claim will proceed to an evidentiary
hearing to resolve those factual and
legal issues presented by the alien’s
claim. See 8 CFR 1240.11(c)(3).
Accordingly, pretermission works to
supplement the existing regulations; it
does not conflict with them, nor does it
render them surplusage.
29 Nevertheless, despite commenters’ statements,
the Departments emphasize that while an alien’s
testimony may be sufficient to meet his or her
burden of proof on its own, such testimony must
be ‘‘credible,’’ ‘‘persuasive,’’ and refer to sufficient
specific facts.’’ INA 240(c)(4)(B) (8 U.S.C.
1229(c)(4)(B)). Otherwise, the immigration judge
may determine that the alien should provide
corroborative evidence unless the alien can
demonstrate that he or she does not have and
cannot reasonably obtain the evidence. Id.; see also
Matter of E–P–, 21 I&N Dec. 860, 862 (BIA 1997) (a
finding of credible testimony is not dispositive as
to whether asylum should be granted).
30 The Departments also note that an alien may
proffer written testimony as part of his or her
response to either the DHS motion or judge’s notice
regarding pretermission.
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3.2.3. Pretermission and BIA Case Law
Comment: Commenters stated that
allowing immigration judges to
pretermit and deny asylum applications
violates Matter of Fefe, 20 I&N Dec. 116
(BIA 1989), and Matter of Ruiz, 20 I&N
Dec. 91 (BIA 1989). Commenters
disagreed with the Departments’
distinguishing Matter of Fefe in the
proposed rule by noting that the
underlying regulations interpreted by
the BIA in Matter of Fefe are no longer
in effect. See 85 FR at 36277. Instead,
commenters stated that both the BIA
and the Federal courts have noted that
the current regulations at 8 CFR 1240.11
are substantially similar to the
regulations at issue in Matter of Fefe.
See Matter of E–F–H–L–, 26 I&N Dec.
319, 323 (BIA 2014) (noting that the
current regulatory ‘‘language does not
differ in any material respect from that
in the prior regulations’’), vacated by 27
I&N Dec. 226, 226 (A.G. 2018); Oshodi
v. Holder, 729 F.3d 883, 898 (9th Cir.
2013) (‘‘We reaffirm our holding, and
the BIA’s own rule, that an applicant’s
oral testimony is ‘an essential aspect of
the asylum adjudication process’ and
the refusal to hear that testimony is a
violation of due process.’’) (citing Matter
of Fefe, 20 I&N Dec. at 118).
Response: As stated in the proposed
rule, the Departments find that
intervening changes to the regulations
since its publication and the Attorney
General’s vacatur of Matter of E–F–H–L–
have superseded the BIA’s holding in
Matter of Fefe. 85 FR at 36277. The
BIA’s statement in Matter of E–F–H–L–
that the current regulations ‘‘do not
differ in any material respect’’ from
those in effect in 1989 was simply not
accurate, and the Departments find that
the regulations today create a
substantively different framework for
adjudications than the regulations in
1989. Notably, the earlier regulations
contained a general requirement that all
applicants be examined in person by an
immigration judge or asylum officer
prior to the application’s adjudication. 8
CFR 208.6 (1988). Today, however, the
regulations provide direct examples of
times when no hearing on an asylum
application is required: If no factual
issues are in dispute and once the
immigration judge has determined that
the application must be denied pursuant
to the mandatory criteria in 8 CFR
1208.14 or 1208.16. See 8 CFR
1240.11(c)(3) (‘‘An evidentiary hearing
extending beyond issues related to the
basis for a mandatory denial of the
application pursuant to § 1208.14 or
§ 1208.16 of this chapter is not
necessary once the immigration judge
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has determined that such a denial is
required.’’).
The procedures at 8 CFR part 208 at
issue in Matter of Fefe were first
amended in 1990. Aliens and
Nationality; Asylum and Withholding of
Deportation Procedures, 55 FR 30674
(July 27, 1990) (final rule); Aliens and
Nationality; Asylum and Withholding of
Deportation Procedures, 53 FR 11300
(Apr. 6, 1988) (proposed rule). At that
time, the Department clearly indicated
that the purpose of the amendments 31
was to allow immigration judges and the
BIA greater flexibility to ‘‘limit the
scope of evidentiary hearings . . . to
matters that are dispositive of the
application for relief.’’ 53 FR at 11301.
The Department of Justice explained
that, ‘‘[i]f it is apparent upon the record
developed during a proceeding that the
alien is clearly ineligible for asylum or
withholding of deportation, the
Immigration Judge will be permitted to
forego a further evidentiary hearing on
questions extraneous to the decision,
thus avoiding unnecessary and time
consuming factual hearings on
nondispositive issues.’’ Id.
Despite the BIA’s statements opining
on the similarity of 8 CFR 1240.11(c)
and 8 CFR 236.3 and 242.17 (1988)—
which, as stated elsewhere have been
vacated by the Attorney General—the
Departments find that there are clear
procedural differences between a
general requirement to conduct a
hearing and regulations that establish
clear exceptions to a hearing
requirement. In short, the Board’s
decisions in Matter of Fefe and Matter
of E–F–H–L–, in light of subsequent legal
developments, simply do not stand for
the propositions advanced by some
commenters. See Ramirez v. Sessions,
902 F.3d 764, 771 n.1 (8th Cir. 2018)
(‘‘The current relevance of [Matter of
Fefe and Matter of E–F–H–L–] is
questionable. The regulations applied in
Matter of Fefe were later rescinded and
replaced. Further, Matter of E–F–H–L–,
which reaffirmed Matter of Fefe, was
vacated [by the Attorney General] after
the petitioner withdrew his
application.’’).
31 The amended regulatory provisions at 8 CFR
236.3, which regarded exclusion proceedings, and
8 CFR 242.17, which regarded deportation
proceedings, are the precursors to current
regulatory sections 8 CFR 1240.33 and 8 CFR
1240.49. Cf. Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct
of Removal Proceedings; Asylum Procedures, 62 FR
444, 450 (Jan. 3, 1997) (discussing the relocation of
‘‘old regulations which are still applicable to
proceedings commenced prior to April 1, 1997 . . .
to new parts of the regulations as separate
subtopics’’). Current 8 CFR 1240.11(c)(3) in turn
follows this approach for the consideration of
asylum applications during removal proceedings
under section 240 of the Act (8 U.S.C. 1229a).
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Further, even if the regulation
conflicted with a prior interpretation by
the BIA, the Attorney General,
consistent with his authority to interpret
the INA, may still issue the rule. INA
103(g), 8 U.S.C. 1103(g). The
Departments are not bound by prior
judicial interpretations of the
Departments’ own regulations, as such
interpretations are not interpretations of
the INA’s statutory requirements.
Matter of Ruiz, is also distinguishable.
There, the BIA held that an immigration
judge could not require an alien who
sought to reopen proceedings conducted
in absentia to demonstrate a prima facie
eligibility for asylum in conjunction
with the motion to reopen. Matter of
Ruiz, 20 I&N Dec. at 93. Instead, the BIA
held that the alien must demonstrate a
‘‘reasonable cause for his failure to
appear.’’ Id. But the change in the rule
here—which allows immigration judges
to pretermit and deny asylum
applications that fail to demonstrate a
prima facie claim for relief or
protection—has no connection to what
aliens must demonstrate in order to
reopen a hearing conducted in absentia.
The in absentia requirements are
separately set out by the Act and
regulations. See INA 240(b)(5)(C)(i)–(ii),
8 U.S.C. 1229a(b)(5)(C)(i)–(ii) (providing
conditions for rescinding an in absentia
removal order based on a motion to
reopen); 8 CFR 1003.23(b)(4)(ii). There
is no separate requirement to
demonstrate further eligibility for any
application for relief, consistent with
Matter of Ruiz. Further, the equivalent
statutory right to former section 236(a)
of the Act, 8 U.S.C. 1226(a), which was
at issue in Matter of Ruiz, is the alien’s
rights in a proceeding under section
240(b)(4) of the Act, 8 U.S.C. 1229(b)(4),
which, as discussed above, are not
violated by allowing an immigration
judge to pretermit and deny
applications that fail to demonstrate a
prima facie claim for relief or
protection.
3.2.4. Additional Concerns Regarding
Pretermission
Comment: Multiple commenters
expressed concern that the rule would
allow immigration judges to dismiss
asylum claims without a hearing,
denying applicants the opportunity to
appear in court and offer testimony.
Commenters emphasized that the rule is
‘‘extremely problematic’’ from a due
process perspective and violates aliens’
Fifth Amendment due process rights. In
support, commenters cited to case law
discussing the right to testify and
finding due process violations when
that right is curtailed or limited. See,
e.g., Atemnkeng v. Barr, 948 F.3d 231,
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242 (4th Cir. 2020) (holding that there
was a due process violation where the
immigration judge deprived an asylum
applicant of the opportunity to testify
on remand). Commenters emphasized a
quote from the chair of the American
Immigration Lawyers Association’s
asylum committee stating that ‘‘the
pretermission authority was the most
striking attack on due process in the
proposal,’’ and noting that some
immigration judges already have denial
rates of 90 percent or higher.
Response: The commenters appear to
misconstrue both the nature of the rule
and the difference between issues of fact
and issues of law. None of the examples
provided by commenters involved
situations in which an immigration
judge pretermitted an application as
legally deficient; rather, they involve
situations in which an immigration
judge initially allowed testimony but
then cut-off questioning—or, in one
case, disallowed testimony altogether—
following a remand. In other words, the
posture of the examples cited by
commenters is one in which an alien
had already demonstrated a prima facie
case, making those examples inapposite
to the rule. Commenters did not provide
any examples where a properly
supported legal pretermission—by
itself—was found to be a due process
violation, nor did commenters explain
how analogous summary-decision or
summary-judgment provisions in other
contexts—e.g. 28 CFR 68.38 or Fed. R.
Civ. P. 56—remain legally valid even
though they, too, curtail an individual’s
ability to testify or introduce evidence
in proceedings. In short, the
commenters’ concerns appear
unconnected to the actual text of the
rule and the applicable law.
The Departments disagree that
allowing immigration judges to
pretermit and deny asylum applications
that do not show a prima facie claim for
relief would violate applicants’ due
process rights. The essence of due
process is notice and an opportunity to
be heard. See LaChance, 522 U.S. at
266. Nothing in the rule eliminates
notice of charges of removability against
an alien, INA 239(a)(1), 8 U.S.C.
1229(a)(1), or the opportunity for the
alien to make his or her case to an
immigration judge, INA 240(a)(1), 8
U.S.C. 1229a(a)(1), or on appeal, 8 CFR
1003.38.
In addition, the rule would not
require or expect aliens to meet their
ultimate burden of proof to avoid
pretermission; instead, the alien must
only (per one common definition of
‘‘prima facie’’) ‘‘establish a fact or raise
a presumption, unless disproved or
rebutted.’’ Black’s Law Dictionary (11th
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ed. 2019); cf. Tilija v. Att’y Gen., 930
F.3d 165, 171 (3d Cir. 2019) (‘‘To
establish a prima facie claim, the
movant ‘must produce objective
evidence that, when considered together
with the evidence of record, shows a
reasonable likelihood that he is entitled
to [asylum] relief.’’’ (citation omitted)).
Further, the rule ensures the alien has
an opportunity to respond to either the
DHS motion or the judge’s notice
regarding pretermission and provide the
court with additional argument or
evidence, including proffered written
testimony, in support of the alien’s
application.
Comment: Commenters emphasized
that asylum seekers are vulnerable and
often unrepresented and noted the low
rates of representation for aliens in the
Migrant Protection Protocols (‘‘MPP’’) in
particular. Because many asylum
seekers do not speak English, it is often
difficult for them to navigate the
complexities of the immigration system.
Commenters specifically noted that it is
hard for detained, unrepresented
individuals to complete asylum
applications because they are often
required to use ‘‘unofficial translators’’
with whom they are not comfortable
sharing personal information.
Commenters stated that the immigration
judge’s consideration of an alien’s
response to the judge’s notice or DHS
motion regarding pretermission does not
alleviate the commenters’ concerns.
Commenters argued that the same
language barriers and other
vulnerabilities would apply to both the
response and the underlying Form I–589
application; thus, they contend, a
response alone does not provide a
‘‘meaningful opportunity’’ to address
misunderstandings or fully engage with
the judge or DHS.
Response: As an initial point, the
commenters’ assertion of a low rate of
representation is inaccurate. The
Departments note that a large majority
(85 percent at the end of FY2020) of
those asylum seekers who are in
proceedings before DOJ—and who, in
turn, could have an immigration judge
pretermit their asylum applications—are
represented in proceedings. EOIR,
Adjudication Statistics: Representation
Rates (Oct. 13, 2020), https://
www.justice.gov/eoir/page/file/1062991/
download. Second, while the
Departments agree with commenters
that many asylum seekers’ first or
preferred language is a language other
than English, the Departments find that
it is reasonable to expect aliens to
utilize translators or other resources in
order to complete the Form I–589
application in accordance with the
regulations and instructions, which
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require that the form be completed in
English. See 8 CFR 208.3(a), 1208.3(a)
(noting that an applicant must file an I–
589 ‘‘in accordance with the
instructions on the form’’); Form I–589,
Application for Asylum and for
Withholding of Removal, Instructions, 5
(Sept. 10, 2019), https://www.uscis.gov/
sites/default/files/document/forms/i589instr.pdf (‘‘Your answers must be
completed in English.’’). Moreover,
existing regulations already require that
foreign-language submissions be
translated into English, see 8 CFR
103.2(b)(3), 1003.33, so it is unclear how
a non-English-speaking alien could
submit evidence without a translator in
any case.
The Departments thus disagree that
aliens would be unable to answer the
questions on the Form I–589 with
enough specificity to make a prima facie
claim for relief or protection. The
Departments further note that aliens
whose applications are deficient will be
able to provide additional argument or
evidence in response to either DHS’s
motion to pretermit or the judge’s sua
sponte notice. See 8 CFR 1208.13(e) (as
amended). Despite commenters’
concerns that this process is
insufficient, this is the same process
that is regularly used in immigration
court, including other times when an
alien’s ability to seek a particular form
of relief may be foreclosed by DHS filing
a motion to pretermit. 85 FR at 36277.
Comment: Commenters stated that
allowing immigration judges to
pretermit applications would violate the
duty of the immigration judge under the
Act and the regulations to develop the
record, particularly for cases where the
alien appears pro se and for cases
involving UACs. See, e.g., Jacinto v.
I.N.S., 208 F.3d 725, 734 (9th Cir. 2000)
(‘‘[U]nder the statute and regulations
previously cited, and for the reasons we
have stated here, immigration judges are
obligated to fully develop the record in
those circumstances where applicants
appear without counsel . . . .’’).
Response: Allowing immigration
judges to pretermit and deny asylum
applications that do not demonstrate a
prima facie claim for relief or protection
does not violate the immigration judge’s
responsibility to develop the record.
Instead, the rule comports with this
duty by requiring immigration judges to
provide notice and an opportunity to
respond before pretermitting any
application. Such notice should provide
the parties with information regarding
the judge’s concerns, and should elicit
relevant information in response.
Similarly, in the context of DHS
motions to pretermit, the immigration
judge would consider the alien’s
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response to the motion and may solicit
additional information, if needed, for
review.
Comment: Commenters stated that
pretermission conflicts with
adjudication guidance in UNHCR’s
Handbook on Procedures and Criteria
for Determining Refugee Status, which
provides that, ‘‘while the burden of
proof in principle rests on the applicant,
the duty to ascertain and evaluate all the
relevant facts is shared between the
applicant and the examiner. Indeed, in
some cases, it may be for the examiner
to use all the means at his disposal to
produce the necessary evidence in
support of the application.’’ UNHCR,
Handbook On Procedures and Criteria
for Determining Refugee Status, ¶ 196
(1979) (reissued Feb. 2019), https://
www.unhcr.org/en-us/publications/
legal/5ddfcdc47/handbook-procedurescriteria-determining-refugee-statusunder-1951-convention.html. As a
result, commenters stated that allowing
immigration judges to pretermit and
deny applications that do not
demonstrate a prima facie claim does
not meet the United States’ international
obligations and does not align with
congressional intent to follow the
Refugee Convention.
Response: Commenters’ reliance on
guidance from UNHCR is misguided.
UNHCR’s interpretations of (or
recommendations regarding) the
Refugee Convention and Protocol,
including the UNHCR Handbook, 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 (citation and internal quotations
omitted). Further, to the extent such
guidance ‘‘may be a useful interpretative
aid,’’ id. at 427, it would apply only to
statutory withholding of removal, which
is the protection that implements
Article 33 of the Convention. Cf. R–S–
C v. Sessions, 869 F.3d 1176, 1188, n.11
(10th Cir. 2017) (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’’). And
although the rule would allow
pretermission of Form I–589
applications submitted for withholding
of removal or CAT protection, such
pretermission does not necessarily
constrict or limit the population of
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aliens that may qualify for such
protection. Instead, it simply provides
an efficiency for the adjudication of
those claims that do not demonstrate a
baseline prima facie eligibility for relief.
Comment: Commenters emphasized
that the rule forces the entire eligibility
decision to be based on the Form I–589
and supporting documents, noting that
this could be problematic if the
applicant does not initially possess all
of the necessary documentation.
Commenters also claimed that
pretermitting an application while the
individual is still working to gather
paperwork would be ‘‘grossly unfair’’
and contended that, if the rule is
adopted, it must provide a ‘‘working
period’’ after submission during which
an application cannot be pretermitted.
Commenters also noted that
unrepresented individuals may have
their applications terminated prior to
finding representation who could help
them supplement an application that
was originally lacking or insufficient.
Other commenters noted that there
are many cases that initially appear to
lack eligibility but later qualify for
asylum after testimony is taken and
additional facts are uncovered.
Commenters referenced Matter of Fefe,
20 I&N Dec. 116, and Matter of
Mogharrabi, 19 I&N Dec. 443, noting
that there are often discrepancies
between the written and oral statements
in an asylum application that can only
be resolved through direct examination.
Response: Commenters again appear
to misstate the rule, to misunderstand
the difference between issues of fact and
issues of law, and to misunderstand the
difference between a prima facie legal
showing and a full consideration of the
merits of a case. The rule requires
simply a prima facie case for relief; it
does not require that every factual
assertion be supported by additional
corroborative evidence. If the alien’s
application for relief states sufficient
facts that could support his or her claim
for relief or protection, the immigration
judge would not pretermit the
application solely because some
additional documentation is still being
gathered.32 Accordingly, the
32 Many commenters raised this issue specifically
for particular social group asylum claims, noting
the fact-intensive nature of the social distinction
element—i.e., that it be recognized by the society
in question—required for such groups. See S.E.R.L.,
894 F.3d at 556 (‘‘And that must naturally be so,
once it is given that social distinction involves
proof of societal views. What those views are and
how they may differ from one society to another are
questions of fact’’). The Departments recognize that
situations in which particular social group asylum
claims may be pretermitted due to a failure to make
a prima facie showing of the social distinction
element are likely to be rare. Nevertheless, the
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Departments disagree that a minimum
‘‘working period’’ before which an
application may not be pretermitted is
needed.
Regarding applications that at first
appear insufficient but are later
bolstered through additional
information, the Departments again
emphasize that the rule provides the
alien with the opportunity to respond to
either the DHS motion or the judge’s
notice regarding pretermission. The
Departments expect that such a
response would be used to provide
additional information, which the
immigration judge would consider prior
to making any final determination
regarding pretermission. Moreover, in
both Matter of Fefe and Matter of
Mogharrabi, there was no question
about whether the alien had stated a
prima facie claim. In the former, the
immigration judge raised doubts over
the alien’s credibility—not over the
legal basis of the claim—that were not
resolved because the alien did not
testify. In the latter, the Departments see
no indication that the alien could not
have stated a prima facie claim.
Finally, an immigration judge may
only pretermit an application that is
legally deficient. Thus, the gathering of
additional facts that do not bear on the
legal cognizability of the claim—for
example, gathering the specific names of
every speaker at a political rally—is not
required by the rule to avoid
pretermission.
Comment: Commenters also criticized
the 10-day notice period, claiming it is
‘‘unreasonably short,’’ especially
considering the COVID–19 pandemic.
Response: The 10-day period is
consistent with current EOIR practice,
where it has worked well. See EOIR,
Immigration Court Practice Manual at
D–1 (July 2, 2020), https://
www.justice.gov/eoir/page/file/1258536/
download. The Departments disagree
that the current COVID–19 situation
affects the reasonableness of the 10-day
deadline as filings can be submitted by
mail and, in some locations, online. See
EOIR, Welcome to the EOIR Courts &
Appeals System (ECAS) Information
Page, https://www.justice.gov/eoir/
ECAS. Further, if an immigration court
location is unexpectedly closed on the
day of the deadline, the deadline is
extended until the immigration court
reopens. See EOIR, PM 20–07: Case
immutability and particularity requirements are not
necessarily factbound—though they may be in
discrete cases—and the failure of an alien to make
a prima facie showing that a proposed particular
social group consists of a characteristic that is
immutable (or fundamental) or is defined with
particularity may warrant pretermission of the
claim in appropriate cases.
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Management and Docketing Practices, 2
n.1 (Jan. 31, 2020), https://
www.justice.gov/eoir/page/file/1242501/
download. Moreover, many nondetained hearings continue to be
postponed due to COVID–19 rendering
deadlines largely malleable until
hearings resume.
Comment: Commenters alleged that
the rule would result in a higher rate of
pretermission for unrepresented
individuals because these applicants
would be unfamiliar with the ‘‘magic
language’’ needed to survive a motion to
pretermit. As a result, commenters
claimed that the rule violates the Fifth
and Sixth Amendments, and
concurrently violates section
240(b)(4)(A) and (B) of the Act, 8 U.S.C.
1229a(b)(4)(A) and (B).33
Response: Commenters are incorrect
that the rule violates an alien’s right to
counsel under section 240(b)(4)(A) of
the Act, 8 U.S.C. 1229a(b)(4)(A), and the
Sixth Amendment. First, section
240(b)(4)(A) of the Act, 8 U.S.C.
1229a(b)(4)(A), provides that aliens
‘‘shall have the privilege of being
represented, at no expense to the
government, by counsel of the alien’s
choosing who is authorized to practice
in such proceedings.’’ No provision of
this rule would limit an alien’s ability
to obtain representation as provided by
the INA. Second, the Sixth Amendment
right to counsel does not apply in
immigration proceedings, which are
civil, not criminal, proceedings. See,
e.g., Tawadrus v. Ashcroft, 364 F.3d
1099, 1103 (9th Cir. 2004).34
Commenters are similarly incorrect
that the rule violates the equal
33 Commenters did not provide further
explanation regarding how the rule allegedly
violates section 240(b)(4)(B) of the Act (8 U.S.C.
1229a(b)(4)(B)), which provides that: The alien shall
have a reasonable opportunity to examine the
evidence against the alien, to present evidence on
the alien’s own behalf, and to cross-examine
witnesses presented by the Government but these
rights shall not entitle the alien to examine such
national security information as the Government
may proffer in opposition to the alien’s admission
to the United States or to an application by the alien
for discretionary relief under this chapter. This rule
does not affect any procedures that relate to aliens’
rights under this provision of the INA, and,
accordingly, the Departments need not respond
further to this point.
34 Although the Sixth Amendment’s right to
counsel does not apply in immigration proceedings,
some courts have held that a constitutional right to
counsel in immigration proceedings applies as part
of the Fifth Amendment’s due process clause. See,
e.g., Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir.
2019) (‘‘Both Congress and our court have
recognized the right to retained counsel as being
among the rights that due process guarantees to
petitioners in immigration proceedings.’’).
Nevertheless, neither the proposed rule nor this
final rule violates such a right to counsel as the rule
does not amend any procedures related to an alien’s
right to obtain counsel of his or her choosing at no
government expense.
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protection component of the Fifth
Amendment’s Due Process Clause
because unrepresented aliens will be
more likely to have asylum applications
pretermitted than similarly situated
represented aliens. First, commenters’
concerns that the rule will have a
disparate impact are speculative.
Second, similar procedures in other
civil proceedings—such as the summary
decision procedures of 28 CFR 68.38 or
summary judgment under the Federal
Rules of Civil Procedure—do not violate
the Fifth Amendment. Third, even if the
commenters were correct that the rule
has a discriminatory impact, the
Departments find it would not violate
the Fifth Amendment’s equal protection
guarantee because the rule does not
involve a suspect classification or
burden any fundamental right. See
Heller v. Doe, 509 U.S. 312, 319 (1993)
(holding that ‘‘a classification neither
involving fundamental rights nor
proceeding along suspect lines is
accorded a strong presumption of
validity’’).
Allowing the pretermission of
applications would enhance judicial
efficiency by no longer requiring a full
hearing for applications that are legally
deficient on their face. There continue
to be record numbers of both pending
cases before EOIR 35 and asylum
applications 36 filed annually.
Accordingly, the Departments seek to
most efficiently allocate EOIR’s limited
adjudicatory capacity in order to decide
cases in a timely manner, including
granting relief to aliens with meritorious
cases as soon as possible. Accordingly,
there is at least a rational basis for
allowing pretermission of asylum
applications in this manner. Cf.
DeSousa v. Reno, 190 F.3d 175, 184 (3d
Cir. 1995) (‘‘[D]isparate treatment of
different groups of aliens triggers only
rational basis review under equal
protection doctrine. . . . Under this
minimal standard of review, a
classification is accorded ‘a strong
presumption of validity’ and the
government has no obligation to
produce evidence to sustain its
rationality.’’ (internal citations
omitted)).
Comment: Commenters also alleged
that the pretermission of asylum
applications is incompatible with
federally established pleading standards
35 EOIR, Adjudication Statistics: Pending Cases
(Apr. 15, 2020), https://www.justice.gov/eoir/page/
file/1242166/download (1,122,697 pending cases as
of the second quarter of FY2020)
36 EOIR, Adjudication Statistics: Total Asylum
Applications (Apr. 15, 2020), https://
www.justice.gov/eoir/page/file/1106366/download
(120,495 asylum applications filed as of the second
quarter of FY2020).
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and ‘‘would be an abrupt change from
decades of precedent and practice
before the immigration court.’’
Commenters provided a hypothetical
chain of events to illustrate this alleged
violation of pleading standards and
cited to Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585, 594 (8th Cir. 2009) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) and Bell Atl. Corp. v. Twombly,
550 U.S. 554, 556 (2007)).
Response: The Federal Rules of Civil
Procedure do not apply in immigration
court. See Fed. R. Civ. P. 81 (setting out
the applicability of the rules); see also
8 CFR part 1003, subpart C (setting out
the immigration court rules of
procedure). Accordingly, commenters’
reliance on cases that interpret Rule 8(a)
of the Federal Rules of Civil Procedure
are not applicable to immigration court.
Moreover, the commenters’ comparisons
to a pleading standard are inaccurate as
the decision to pretermit an application
is akin to a summary judgment decision,
not a pleading determination. Cf. F.R.
Civ. P. 56 (‘‘The court shall grant
summary judgment if the movant shows
that there is no genuine dispute as to
any material fact and the movant is
entitled to judgment as a matter of
law.’’). In order to ensure the
immigration judge has as much
information as possible about the
underlying claim, the rule ensures the
applicant has the opportunity to
respond to the possible pretermission of
his or her application, either as a
response to a DHS motion to pretermit
or a response to the immigration judge’s
notice of possible pretermission.
Comment: Commenters contended
that the rule, in combination with the
Immigration Court Performance Metrics,
incentivizes immigration judges to
pretermit asylum applications in order
to fulfill case completion requirements.
Response: The Departments strongly
disagree with the commenters’
underlying premise, namely that
immigration judges are unethical or
unprofessional and decide cases based
on factors other than the law and the
facts of the cases. Immigration judges
exercise ‘‘independent judgment and
discretion’’ in deciding cases, 8 CFR
1003.10, and are expected to ‘‘observe
high standards of ethical conduct, act in
a manner that promotes public
confidence in their impartiality, and
avoid impropriety and the appearance
of impropriety in all activities,’’ EOIR,
Ethics and Professionalism Guide for
Immigration Judges at 1 (2011), https://
www.justice.gov/sites/default/files/eoir/
legacy/2013/05/23/Ethicsand
ProfessionalismGuideforIJs.pdf. Further,
it is well-established that ‘‘[t]he
administrative process is entitled to a
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presumption of regularity,’’ Int’l Long
Term Care, Inc. v. Shalala, 947 F. Supp.
15, 21 (D.D.C. 1996), and commenters
provide no evidence for the bald
assertion that immigration judges will
ignore applicable law and the evidence
in each case simply in order to pretermit
the case. See also United States v.
Chemical Found., 272 U.S. 1, 14–15
(1926) (‘‘The presumption of regularity
supports the official acts of public
officers, and, in the absence of clear
evidence to the contrary, courts
presume that they have properly
discharged their official duties.’’). To
the contrary, in FY 2019, the first full
FY after immigration judge performance
measures went into effect, not only did
most non-supervisory immigration
judges working the full year meet the
case completion measure without any
difficulty, see EOIR, Executive Office for
Immigration Review Announces Case
Completion Numbers for Fiscal Year
2019, https://www.justice.gov/opa/pr/
executive-office-immigration-reviewannounces-case-completion-numbersfiscal-year-2019, but complaints of
immigration judge misconduct actually
declined slightly from the prior FY, see
EOIR, Adjudication Statistics:
Immigration Judge Complaints, https://
www.justice.gov/eoir/page/file/1104851/
download, even though the total number
of immigration judges increased 12
percent, see EOIR, Adjudication
Statistics: Immigration Judge Hiring,
https://www.justice.gov/eoir/page/file/
1242156/download.
Allowing pretermission of Form I–589
applications that do not establish a
prima facie claim for relief or protection
under the law provides immigration
judges with a mechanism to improve
court efficiency by clarifying that there
need not be a full merits hearing on
those cases that present no legal
questions for review, allowing them to
devote more time to cases in which facts
are at issue. There is no basis for the
assumption that the rule would
inappropriately incentivize immigration
judges to pretermit applications solely
to fulfill case-completion goals. As
noted, supra, some immigration judges
already pretermit legally deficient
applications, and the Departments are
unaware of any link between that action
and performance metrics; in fact,
immigration judges have pretermitted
legally deficient asylum applications
since at least 2012, Matter of
E–F–H–L–, 26 I&N Dec. 319 (BIA 2014),
which was several years before
performance measures were
implemented.
Moreover, assuming, arguendo, there
were such an incentive, it would be
counter-balanced by the performance
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measure for an immigration judge’s
remand rate. In other words, an
immigration judge who improperly
pretermitted applications in violation of
the law solely in order to complete more
cases would have those cases remanded
by the Board on appeal which, in turn,
would cause the immigration judge’s
remand rate to exceed the level set by
the performance measures. In short,
there is no legal, factual, or logical
reason to believe that codifying an
immigration judge’s authority to
pretermit legally deficient applications
and the existence of immigration judge
performance evaluations will
incentivize immigration judges to
violate the law in their decision making.
Comment: Commenters emphasized
that asylum applications are governed
by the law at the time of adjudication
rather than the time of filing and
expressed concern that the
pretermission of applications for lack of
a prima facie showing of eligibility
forces immigration judges and asylum
officers to become ‘‘soothsayers.’’
Response: Allowing immigration
judges to pretermit and deny
applications that do not present a prima
facie claim for relief or protection does
not conflict with this point. If the judge
determines that pretermission is
appropriate, that decision would be
based on the law and regulations in
place at that point, and the decision to
pretermit is the adjudication of the
application.
Comment: Commenters questioned
the effect the rule will have on the
asylum clock, especially if a decision
affecting eligibility is abrogated by a
higher court after an application was
filed and pretermitted; one commenter
expressed concern that the rule does not
specify ‘‘when in the process DHS or the
judge can move.’’ One commenter
emphasized that ‘‘[a]ny final rule which
is eventually published should consider
how the asylum clock will operate, and
should provide clear instructions which
attorneys and their clients can rely on.’’
Response: The Departments note that
USCIS recently published a final rule,
Asylum Application, Interview, and
Employment Authorization for
Applicants, that eliminates the asylum
clock.37 However that rule is currently
the subject of ongoing litigation and
portions of the rule are subject to a
preliminary injunction, as applied to
two plaintiff organizations.38
Regardless, as stated in the proposed
rule, an immigration judge who
37 85
FR 38532, 39547.
de Maryland v. Wolf, No. 8:20–cv–02118–
PX, 2020 WL 5500165, (D. Md. Sept. 11, 2020)
(order granting preliminary injunction).
38 Casa
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determines that an asylum application
that fails to demonstrate prima facie
eligibility for relief or protection under
applicable law may ‘‘pretermit and
deny’’ such application. See 8 CFR
1208.13(e). Accordingly, a decision to
pretermit and deny would have the
same asylum clock effects as any other
denial of an asylum application by the
immigration judge.
Comment: Commenters alleged that
the rule would greatly decrease
efficiency in the asylum process, as the
number of cases in which a hearing is
denied would ‘‘skyrocket’’ and the
majority of these respondents would
appeal to the BIA. Commenters noted
the BIA’s current backlog and the
increased delay in issuing briefing
schedules and decisions.
Response: Allowing immigration
judges to pretermit and deny asylum
applications that do not demonstrate a
prima facie claim for relief or protection
will increase, not decrease, efficiencies
for DOJ. Commenters’ predictions of
how many cases will be pretermitted
under these changes are speculation, as
the Departments do not have data on the
underlying bases for denials currently,
which would be required to accurately
predict how many might be pretermitted
in the future. Moreover, as fewer than
20 percent of asylum applications are
granted even with a full hearing, see
EOIR, Asylum Decision Rates, https://
www.justice.gov/eoir/page/file/1248491/
download, and many of the ones not
granted are appealed already, there is
likely to be little operational impact on
the BIA.39 In contrast, pretermitting
legally deficient claims will improve
efficiency for immigration courts by
allowing immigration judges to screen
out cases that do not demonstrate prima
facie eligibility and, thus, allowing
potentially meritorious applications to
progress more expeditiously to
individual hearings.
Comment: One commenter noted that
there are particular signatures on the
asylum application which can only be
signed by the applicant at the final
hearing and claimed that pretermission
is ‘‘non-sensical’’ because the
application will not yet be complete.
Response: The Departments disagree
with commenters’ concerns that asylum
applications may not be pretermitted
because a signature is required by the
applicant at the final hearing. The
Departments believe that the
commenters are referring to the
39 The Departments note that DOJ has also
recently taken steps to improve adjudicatory
efficiency at the BIA. See EOIR, Case Processing at
the Board of Immigration Appeals (Oct. 1, 2019),
https://www.justice.gov/eoir/page/file/1206316/
download.
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signature in Part G of the Form I–589,
which is most often signed by the alien
at the beginning of the merits hearing on
the alien’s asylum application and in
which the alien swears that the
application’s contents are true and
acknowledges the consequences of
submitting a frivolous application.
Accordingly, the signature in Part G of
the Form I–589 is related to a possible
frivolousness finding and the attendant
consequences.
Moreover, for the purposes of
determining whether to pretermit an
application, whether or not the
immigration judge has had the applicant
sign in Part G, the applicant signs in
Part D at the time the application is
completed. The signature in Part D is
the alien’s certification under penalty of
perjury that the application and any
evidence submitted with it are ‘‘true and
correct,’’ in addition to another notice of
the consequences of filing a frivolous
application and other activities. Given
the alien’s signature in Part D that the
application is ‘‘true and correct,’’ the
Departments believe that the application
is sufficient for the purposes of possible
pretermission even without a signature
in Part G.
Comment: Commenters stated that
allowing pretermission will inevitably
violate the confidentiality obligations
for asylum applicants, speculating that
the immigration judge, alien, and DHS
counsel will engage in inappropriate
conversations regarding the specifics of
an asylum application in front of other
people during master calendar hearings.
Response: With few exceptions, most
immigration hearings are open to the
public. 8 CFR 1003.27. Regulations
further note that ‘‘[e]videntiary hearings
on applications for asylum or
withholding of removal will be open to
the public unless the alien expressly
requests that the hearing be closed.’’ 8
CFR 1240.11(c)(3)(i). A master calendar
hearing is not an evidentiary hearing.
See Immigration Court Practice Manual,
ch. 4.15(a), https://www.justice.gov/eoir/
page/file/1258536/download (‘‘Master
calendar hearings are held for pleadings,
scheduling, and other similar matters.’’).
Further, an evidentiary hearing is
designed to ‘‘resolve factual matters in
dispute,’’ 8 CFR 1204.11(c)(3), which
would necessarily exclude such a
hearing from the ambit of pretermission.
Accordingly, there is no reason that the
specifics of an asylum application
would be discussed at a master calendar
hearing, and even if they were, an
immigration judge may close the
courtroom as appropriate to protect the
parties. 8 CFR 1003.27(b).
Comment: Commenters noted that the
Departments are required to comply
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with Executive Orders 12866 and 13653,
which together direct agencies to
evaluate the costs and benefits of
alternative methods and to select the
approach that maximizes net benefits.
Commenters contended that the rule is
‘‘wholly unconcerned’’ with calculating
the costs and benefits of the
pretermission of asylum applications or
reducing costs to Federal government
agencies.
In particular, commenters expressed
concern about costs of the rule possibly
eliminating what the commenters
referred to as the current, more flexible
‘‘redlining’’ procedure in favor of
pretermission. The commenters
explained that ‘‘redlining’’ allows the
alien to update and edit the asylum
application after it is filed ‘‘up until the
point of decision.’’
Commenters disagreed that the rule
will create efficiencies, arguing instead
that the rule will ‘‘increase
administrative burden, expense, and
processing time by effectively creating
two distinct opportunities for appeals to
the BIA, including: (1) Appeal from the
IJ’s decision to pretermit; and (2) appeal
on the merits after the IJ’s decision to
pretermit is overturned.’’
Response: The Office of Information
and Regulatory Affairs, in conducting its
review of the proposed rule, concluded
that the Departments complied with
Executive Orders 12866 and 13653, as
set out in section V.D of the proposed
rule. 85 FR at 36289–90. The
Departments’ consideration included all
provisions of the proposed rule,
including the changes to 8 CFR 1208.13
regarding pretermission of applications.
Further, as stated above, the
Departments emphasize that allowing
pretermission of applications will
increase efficiencies by allowing
immigration judges to complete the
adjudication of certain legally
insufficient asylum applications earlier
in the process, which in turn leaves
additional in-court adjudication time
available for those applications that may
be meritorious. This change would not
prevent aliens from amending or
updating applications that are pending
a decision by the immigration judge,
including a decision on pretermission.
In addition, the Departments dispute the
commenters’ assumption that
immigration judge decisions to
pretermit an application will be
overturned. Immigration judges apply
the immigration laws and would only
pretermit applications that fail to
demonstrate a prima facie case for
eligibility for relief—in other words,
that the application could be sufficient
to establish eligibility for relief.
Applications that are facially deficient
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in this manner would not comply with
the applicable law and regulations, and,
as such, the Departments would not
expect such decisions to be overturned
on appeal.
4. Standards for Consideration During
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4.1. Membership in a Particular Social
Group
Comment: One organization noted
generally that the rule denies asylum to
individuals fleeing violence and
persecution. Commenters noted that the
inclusion of ‘‘particular social group’’ in
the statute was designed to create
flexibility in the refugee definition so as
to capture individuals who do not fall
within the other characteristics
enumerated in section 101(a)(42) of the
INA, 8 U.S.C. 1101(a)(42), and to ensure
that the United States provides
protection in accordance with its treaty
obligations. Commenters argued that the
rule’s narrowing of particular social
group has been rejected by the Federal
courts as contrary to congressional
intent to align U.S. refugee law with the
Convention relating to the Status of
Refugees and its 1967 Protocol. See
Flynn v. Sec’y of Health, Ed. & Welfare,
344 F. Supp. 94, 96 (E.D. Wis. 1972).
Another organization stated that, by
denying the most common grounds of
particular social group membership, the
rule ‘‘abridges U.S. obligations under
the Refugee Convention . . . which
affords asylum seekers the opportunity
to explain why they fit into a protected
group.’’ The organization also claimed
that the rule breaches the United States’
commitment to nonrefoulement, noting
that the United States has committed
itself to this principle as a party to the
Refugee Protocol, the CAT, and
customary international law.
Commenters emphasized a quote from
the UNHCR stating that ‘‘[t]he term
membership of a particular social group
should be read in an evolutionary
manner.’’
Another organization noted that while
the phrase ‘‘particular social group’’ in
the Refugee Convention does not apply
to every person facing persecution, the
Convention requires only that a social
group not be ‘‘defined exclusively by
the fact that it is targeted for
persecution.’’ According to the
Convention, ‘‘the actions of the
persecutors may serve to identify or
40 As an initial matter, the Departments note that
commenters’ discussion on these points often
referred solely to asylum claims. Where relevant,
however, the Departments have also considered the
comments in regards to statutory withholding of
removal.
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even cause the creation of a particular
social group in society.’’ As a result, the
organization contended that the
Convention allows particular social
groups that do not exist independently
of the persecution.
The organization claimed the NPRM
takes the opposite approach, defining
‘‘circular’’ not only as particular social
groups exclusively defined by
persecution but also as those that do not
exist independently of the persecution
claim. The organization noted that, in
doing so, the NPRM seeks to adopt the
circularity analysis in Matter of A–B–,
27 I&N Dec. 316, which treats any group
partially defined by the persecution of
its members as circular. The
organization alleged that this
interpretation of circularity is a
‘‘dramatic departure’’ from longstanding
precedent, noting that the courts of
appeals have held that a particular
social group is not circular unless it is
defined ‘‘entirely’’ by persecution. The
organization claimed that the
Departments do not acknowledge or
justify this ‘‘departure,’’ which makes
the rule arbitrary. The organization also
claimed that the Federal appellate cases
cited in the rule have the same effect. In
addition, the organization emphasized
that the BIA has long accepted
particular social groups with references
to the persecution bringing asylum
seekers to the United States.
One organization claimed the rule’s
requirement that the cognizable group
must exist independently from the
persecution abrogates the following
specific particular social groups already
recognized by circuit courts: Former
gang members, Arrazabal v. Lynch, 822
F.3d 961 (7th Cir. 2016); former
members of the Kenyan Mungiki, Gatimi
v. Holder, 578 F.3d 611 (7th Cir. 2009);
defected KGB agents, Koudriachova v.
Gonzales, 490 F.3d 255 (2d Cir. 2007);
young Albanian women targeted for
prostitution, Cece v. Holder, 733 F.3d
662 (7th Cir. 2013) (en banc); former
child guerilla soldiers in Uganda,
Lukwago v. Ashcroft, 329 F.3d 157 (3d
Cir. 2003); individuals targeted by
Pakistani terrorist groups, Rehman v.
Att’y Gen. of U.S., 178 F. App’x 126 (3d
Cir. 2006), and the Taliban, Khattak v.
Holder, 704 F.3d 197 (1st Cir. 2013); and
Ghanaians returning from the United
States, Turkson v. Holder, 667 F.3d 523
(4th Cir. 2012).
Another organization claimed that,
under international guidelines, the
‘‘common characteristic’’ and ‘‘socially
visible’’ elements of a particular social
group are meant to be ‘‘disjunctive,’’
requiring proof of either one or the
other. The organization also alleged that
the ‘‘particularity’’ requirement is
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unfounded, noting that, according to
UNHCR, the size of the group is
irrelevant in determining whether a
particular social group exists.
Similarly, one organization noted that
the rule would require a particular
social group to be ‘‘defined with
particularity’’ and ‘‘recognized as
socially distinct in the society at
question,’’ claiming that the NPRM fails
to provide any reason for codifying
these standards. The organization
alleged that the particularity and social
distinction requirements ‘‘cut across’’
each other, noting the BIA’s
interpretation that an asylum seeker
‘‘identify a group that is broad enough
that the society as a whole recognizes it,
but not so broad that it fails
particularity’’ and claiming that this has
caused the BIA to essentially end
asylum grants based on particular social
groups that have not been previously
approved.
Multiple commenters called the rule
‘‘unwise and discriminatory.’’
Commenters alleged that the rule is
designed to prevent individuals from
Central America from receiving asylum
and claimed that the rule evidences the
Departments’ intent to prevent ‘‘whole
classes of persons’’ from claiming
asylum based simply on ‘‘the macrolevel characteristics of their country of
origin.’’ One organization representing
DHS employees criticized the
Departments for creating a rule based on
the belief that asylum seekers are
engaging in ‘‘gamesmanship’’ within the
United States legal system, a premise,
the organization claimed, that is
‘‘contrary to our experiences as
adjudicators.’’ The organization stated
that several of the social groups ‘‘slated
for dismissal’’ in the rule ‘‘encompass a
wide cross-section of potentially
successful asylum claims.’’ The
organization also alleged that the rule
creates a ‘‘rebuttable presumption’’ that
asylum claims based on any of the
‘‘broadly enumerated particular social
groups’’ are insufficient unless ‘‘more’’
is provided, but claimed the rule fails to
define what is actually needed for a
successful claim.
Another organization alleged that the
NPRM’s proposal would violate due
process, claiming that the private
interest at stake—preventing the
violence or torture that would occur due
to refoulement—is ‘‘the most weighty
interest conceivable.’’ The organization
contended that the government’s
countervailing interest is ‘‘nonexistent’’
due to the NPRM’s silence, also alleging
that ‘‘working with pro se asylum
seekers’’ imposes a minimal burden on
the government.
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One organization claimed that the
adjudication of asylum applications has
become ‘‘increasingly politicized’’ over
the past three years through the
Attorney General’s self-certification of
cases. The commenter noted that the
Attorney General has issued nine
decisions in the past three years that
restrict eligibility of relief for
noncitizens (with four additional selfcertified decisions pending), while only
four precedential decisions were issued
during the eight years of the previous
administration. The organization stated
that, rather than clarifying existing
definitions, the rule ‘‘virtually
eliminates particular social group as a
basis for asylum.’’
One organization emphasized that if
the Departments choose to codify the
prerequisites to particular social groups
as stated in the rule, they must
‘‘consider all reasonable alternatives
presented to’’ them. Multiple
organizations suggested the
Departments adopt the Matter of Acosta
standard for the analysis of particular
social group claims, meaning that
‘‘particular social group’’ should be
interpreted consistently with the other
four protected characteristics laid out in
the INA. 19 I&N Dec. 211, 233 (BIA
1985), abrogated in part on other
grounds by Matter of Mogharrabi, 19
I&N Dec. 439 (BIA 1987). One
organization emphasized that this
definition is simple, straightforward,
and could be understood by pro se
asylum seekers.
Another organization alleged that the
Departments failed to consider adopting
the UNHCR definition of particular
social group, which includes both
immutability and the basic requirement
that the group ‘‘be perceived as a group
by society.’’ The organization contended
that this standard, like the Matter of
Acosta definition, is reasonable,
emphasizing that it remains
‘‘significantly closer to the other
grounds for asylum in the INA’’ than the
Departments’ proposal.
One organization expressed concern
that the rule would codify the
‘‘restrictive definition’’ of particular
social group announced in Matter of M–
E–V–G–, 26 I&N Dec. 227, 237 (BIA
2014), noting that the rule shortens the
definition set forth in Matter of Acosta.
The organization also contended that
the rule misconstrues the concept of
particular social group by inserting
unrelated legal issues into the
definition, which the organization
believes would lead to greater confusion
for all parties involved. The
organization emphasized that each
particular social group claim should be
evaluated on a ‘‘case-by-case basis’’
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instead of being subjected to general
rules that would result in ‘‘blanket
denials.’’ Another organization stated
that the Attorney General’s own
decision in Matter of A–B–, 27 I&N Dec.
316, is based on the necessity of a
‘‘detailed, case-specific analysis of
asylum claims’’ and highlights the BIA’s
previous errors in ‘‘assessing the
cognizability of a social group without
proper legal analysis.’’ One organization
asserted that the rule appears to codify
the wrongly-decided Matter of W–Y–C–
& H–O–B–, 27 I&N Dec. 189 (BIA 2018),
and ‘‘takes those restrictions even
further.’’
Another organization emphasized that
the circuit courts have disagreed on ‘‘at
least a portion’’ of the definition of
particular social group. One
organization noted that elements of the
rule’s proposed definition have met an
‘‘uneven fate’’ in the courts of appeals,
with many courts finding at least one of
the provisions inconsistent with the
statutory text. Another organization
contended that the circuit courts cannot
be ‘‘overruled’’ by either this rule or
‘‘the Attorney General’s attempt to
devise a new definition of ‘particular
social group’ that intends to cut off
certain claims’’ that have been
previously recognized by the circuit
courts and the BIA. One organization
noted that, while the NPRM states in its
first footnote that agencies have the
authority to re-interpret ambiguous
statutory phrases, it fails to explain how
the definitions at issue arise from an
ambiguous term. Another organization
claimed that until the Supreme Court
resolves the disagreements surrounding
the particular social group definition,
the Departments have no authority to
‘‘overrule’’ the circuit courts’
interpretation of this term.
Another organization alleged that the
rule would ‘‘carve out’’ a laundry list of
particular social groups toward which
the administration has shown
‘‘pervasive, unlawful hostility’’ without
any effort to ground these exceptions in
the Departments’ statutory authority,
claiming this is a violation of the
Administrative Procedure Act (‘‘APA’’).
One organization contended that ‘‘[t]he
use of such brazen ipse dixit without
more renders each entry on the list
arbitrary,’’ also claiming that this
impedes the Departments’ goal of
consistency. The organization claimed
the Departments failed to consider
whether their ‘‘laundry list’’ of
generally-barred particular social groups
would result in the erroneous denial of
meritorious claims.
Commenters claimed that one of the
‘‘most unfair’’ aspects of the rule is that
it would require asylum seekers to state
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every element of a particular social
group with exactness before the
immigration judge. Commenters
expressed particular concern with the
portion of the rule stating that a failure
to define a formulation of a particular
social group before a judge constitutes a
waiver of any such claim under the Act,
including on appeal. One organization
noted that this portion of the rule would
disproportionately impact
unrepresented asylum seekers,
particularly those subjected to MPP, and
would ‘‘forever punish asylum seekers
who were the victims of ineffective
assistance of counsel.’’
Another organization alleged that the
combination of performance goals and
interminable dockets will result in ‘‘the
demise of due process in Immigration
Court for pro se litigants.’’ The
organization noted the importance of
the ‘‘motions practice’’ in a legal system
that is committed to due process,
emphasizing the long-standing practice
of allowing motions to reopen in the
context of ineffective assistance of
counsel. Another organization stated
that, over the past five years, between 15
percent and 24 percent of all asylum
seekers have been unrepresented by
counsel, emphasizing that these
individuals do not have training in
United States asylum law, often speak
little to no English, and are unfamiliar
with the intricate rules surrounding
particular social groups. One
organization expressed specific concern
for refugees. Another organization
claimed that the rule provides no
reasoning for its ‘‘expansion of the
punitive effect of waiver to encompass
ineffective assistance claims,’’ claiming
this is against public policy and is also
arbitrary and capricious; at least one
other organization emphasized this
point as well.
One organization expressed particular
concern for members of the LGBTQ
community, emphasizing that, due to
the nature of the ‘‘coming out and
transitioning process,’’ the formulation
of a particular social group may change
over time, also noting that a refugee may
not know right away that he or she is
HIV positive. The organization claimed
that the rule, ‘‘disregards the reality of
LGBTQ lives’’ and will cause LGBTQ
asylum seekers to be sent back to danger
merely because they were unable to
‘‘come up with the right verbiage to
describe the complicated process of
coming out and transitioning.’’ The
organization claimed this issue is
exacerbated by the fact that many of
these individuals are unrepresented and
do not speak English. Another
organization noted that the INA requires
exceptions to the one-year filing
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deadline for ‘‘changed and
extraordinary circumstances,’’ INA
208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D),
emphasizing that this is particularly
important for this category of asylum
seekers.
One organization claimed the rule
would make it especially difficult for
African asylum seekers to qualify for
asylum based on particular social group
membership. The organization also
expressed concern for women survivors
of female genital cutting (‘‘FGC’’),
alleging that these individuals would
not know to include this fact as part of
a gender-based particular social group
claim. The organization claimed it
would be ‘‘a miscarriage of justice’’ to
preclude these women from presenting
claims.
One organization alleged that the rule
would make it ‘‘almost impossible’’ for
children, particularly those from Central
America or Mexico, to obtain asylum
protection based on membership in a
particular social group. The
organization alleged that the rule’s
barring of a particular social group
claim that was not initially raised in the
asylum application (or in the ‘‘record’’
before an immigration judge) raises
‘‘serious due process concerns’’ for
children, as many of the children
arriving in the United States have
suffered immense trauma and may not
be able to discuss their experiences for
quite some time. The organization
expressed particular concern for
unaccompanied children, noting they
are often unable to discuss the harm
they experienced in their home country
until they have spent time with a
trusted adult. The organization noted
that, for many children, the asylum
process is the first time they ever
discuss their experiences, claiming the
rule ‘‘is unrealistic and an untenable
burden for most children.’’
Commenters also stated that an
asylum seeker’s life should not depend
on his or her ‘‘ability to expertly craft
arguments in the English language in a
way that satisfies highly technical legal
requirements.’’ One organization stated
that ‘‘[a]pplying for asylum is not a
word game; asylum seekers’ lives are on
the line with every application that an
adjudicator decides.’’ Multiple
commenters claimed that asylum
officers and immigration judges have a
duty to help develop the record. One
organization stated that the Departments
should rely on the decisions of EOIR
and Article III courts rather than on the
expertise of asylum seekers. Finally, one
organization expressed concern that this
portion of the rule contains no
exceptions for minors or individuals
who are mentally ill or otherwise
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incompetent, stating that holding these
respondents to this kind of legal
standard violates their rights under the
Rehabilitation Act. See 29 U.S.C. 794;
see also Franco-Gonzales v. Holder, 767
F. Supp. 2d 1034 (C.D. Cal. 2010).
Response: The Departments disagree
with general comments that the rule
would deny asylum to all individuals
fleeing violence and persecution. The
Departments note that asylum
protection is not available to every
applicant who is fleeing difficult or
dangerous conditions in his or her home
country. To qualify for asylum, an
applicant must demonstrate, among
other things, that the feared persecution
would be inflicted ‘‘on account of’’ a
protected ground, such as membership
in a particular social group. See INA
101(a)(42), 8 U.S.C. 1101(a)(42)
(defining ‘‘refugee’’ as a person who,
inter alia, has suffered ‘‘persecution or
a well-founded fear of persecution on
account of . . . membership in a
particular social group’’). Even
accepting that the term ‘‘particular
social group’’ was intended to create
flexibility in the refugee definition, the
contours of that flexible term are clearly
ambiguous and within the purview of
the Departments to decide. See, e.g.,
Matter of A–B–, 27 I&N Dec. at 326 (‘‘As
the Board and the Federal courts have
repeatedly recognized, the phrase
‘membership in a particular social
group’ is ambiguous.’’ (collecting
cases)). Accordingly, the Departments
are establishing clear guidelines for
adjudicators and parties regarding the
parameters of particular-social-group
claims. The Departments believe that
such guidelines will promote a more
uniform approach towards adjudicating
such claims. This will not only aid
adjudicators in applying a more uniform
standard, but will also aid parties such
that they may have a clearer
understanding of how they may prevail
on a particular social group claim as
they develop their applications.
The Departments disagree that the
proposed changes to particular-socialgroup claims violate the Act, case law,
or the due process rights of immigrants.
As noted in the NPRM, Congress has not
defined the term ‘‘membership in a
particular social group.’’ See 85 FR at
36278; see also Grace II, 965 F.3d at 888
(‘‘The INA nowhere defines ‘particular
social group.’ ’’).41 Additionally, despite
41 One commenter questioned the accuracy of the
Departments’ citation to and characterization of
Grace II’s underlying case, Grace I, 344 F. Supp. 3d
at 146, because, according to the commenter, the
case stated that the Attorney General could ‘‘not
propose a general rule that a particular social group
will not qualify for asylum’’ and did ‘‘not reach the
question of whether the Attorney General could
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commenters’ contentions that the
Convention Relating to the Status of
Refugees (‘‘Refugee Convention’’), July
28, 1951, 19 U.S.T. 6259, 189 U.N.T.S.
150, or the related Refugee Protocol
offers guidance on the matter, the term
is not defined in either of those
instruments. 85 FR at 36278; see also
Matter of A–B–, 27 I&N Dec. at 326, n.5
(‘‘The Protocol offers little insight into
the definition of ‘particular social
group,’ which was added to the Protocol
‘as an afterthought.’ ’’) (quoting Matter of
Acosta, 19 I&N Dec. at 232)).
The Board has noted that the term
‘‘particular social group’’ is both
ambiguous and difficult to define.
Matter of M–E–V–G–, 26 I&N Dec. at 230
(‘‘The phrase ‘membership in a
particular social group,’ which is not
defined in the Act, the Convention, or
the Protocol, is ambiguous and difficult
to define.’’). Moreover, the Board has
also recognized that prior approaches to
defining the term have led to confusion
and inconsistency, warranting further
evaluation. As the Board stated in M–E–
V–G–:
Now, close to three decades after Acosta,
claims based on social group membership are
numerous and varied. The generality
permitted by the Acosta standard provided
flexibility in the adjudication of asylum
claims. However, it also led to confusion and
a lack of consistency as adjudicators
struggled with various possible social groups,
some of which appeared to be created
exclusively for asylum purposes. . . . In
Matter of R–A–, 22 I&N Dec. 906, 919 (BIA
1999; A.G. 2001), we cautioned that ‘‘the
social group concept would virtually
swallow the entire refugee definition if
common characteristics, coupled with a
meaningful level of harm, were all that need
be shown.’’
Id. at 231 (footnote omitted).
Consequently, the inherently case-bycase nature of assessing the
cognizability of a particular social
group, the lack of a clear definition of
the term and its consideration through
an open-ended and largely subjective
propose a general rule that a particular group does
qualify for asylum.’’ Irrespective of the commenter’s
characterization of the Departments’ citation, the
D.C. Circuit recently reversed the district court
regarding its statements that the agency action
contested in that litigation improperly established
a categorical bar against recognizing a specified
particular social group. Grace II, 965 F.3d at 906.
Specifically, the court determined that the
Departments’ use of the term ‘‘generally’’
demonstrated that the Departments had not
imposed a categorical rule against finding the
particular social group at issue in that litigation. Id.
Similarly, the Departments here have set forth a list
of particular social groups that ‘‘generally, without
more’’ will not be cognizable, but have specifically
recognized that the regulation does not foreclose
that, in rare circumstances, such facts could be the
basis for finding a particular social group, given the
fact- and society specific nature of this
determination.’’ 85 FR at 36279.
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lens by adjudicators, and the potential
for confusion and inconsistent
application—particularly with
conflicting circuit court interpretations
of similar groups—all make the
definition of a particular social group
ripe for rulemaking. 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)).
Furthermore, courts have also
expressly held that the term is
ambiguous. See, e.g., Cordoba v. Holder,
726 F.3d 1106, 1114 (9th Cir. 2013)
(‘‘We have recognized that the phrase
‘particular social group’ is
ambiguous.’’); Fatin, 12 F.3d at 1238
(‘‘Both courts and commentators have
struggled to define ‘particular social
group.’ Read in its broadest literal sense,
the phrase is almost completely openended. Virtually any set including more
than one person could be described as
a ‘particular social group.’ Thus, the
statutory language standing alone is not
very instructive.’’).42
As noted in the NPRM, ambiguities in
the Act should ‘‘be resolved, first and
foremost, by the agency.’’ 85 FR at
36265 (quoting Matter of R–A–, 24 I&N
Dec. at 631 (quoting Brand X, 545 U.S.
at 982 (internal quotation and citations
omitted)). Further, the Supreme Court
has clearly indicated that administrative
agencies, rather than circuit courts, are
the most appropriate entities to make
determinations about asylum eligibility
in the first instance. The Supreme
Court, in INS v. Ventura, 537 U.S. 12
(2002), noted:
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Within broad limits the law entrusts the
agency to make the basic asylum eligibility
decision here in question. . . . In such
circumstances a judicial judgment cannot be
made to do service for an administrative
judgment. . . . Nor can an appellate court
42 One commenter also suggests that the
Departments cited Cordoba, 726 F.3d 1106, with a
‘‘glaring omission.’’ The commenter suggests that
Cordoba acknowledges that the term ‘‘particular
social group’’ is ambiguous, but asserts that the
Departments fail to recognize that the case goes on
to ‘‘clear up that ambiguity.’’ The Departments need
not delve further into this analysis, which is
refutable for various reasons, other than to state that
the case plainly supports the proposition that the
term ‘‘particular social group’’ is ambiguous and
that such ambiguities are left to the Departments to
clarify pursuant to agency authority. Chevron, 467
U.S. at 845 (‘‘Once [the court] determined, after its
own examination of the legislation, that Congress
did not actually have an intent regarding the
applicability of the bubble concept to the permit
program, the question before it was not whether in
its view the concept is ‘inappropriate’ in the general
context of a program designed to improve air
quality, but whether the [agency’s] view that it is
appropriate in the context of this particular program
is a reasonable one.’’).
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. . . intrude upon the domain which
Congress has exclusively entrusted to an
administrative agency. . . . A court of
appeals is not generally empowered to
conduct a de novo inquiry into the matter
being reviewed and to reach its own
conclusions based on such an inquiry.
Id. at 16 (cleaned up)); cf. Gonzales v.
Thomas, 547 U.S. 183, 185–87 (2006)
(applying Ventura to require a remand
from the circuit court to the agency to
determine a question of the meaning of
‘‘particular social group). ‘‘Indeed,
‘judicial deference to the Executive
Branch is especially appropriate in the
immigration context,’ where decisions
about a complex statutory scheme often
implicate foreign relations.’’ Scialabba
v. Cuellar de Osorio, 573 U.S. 41, 56–
57 (2014) (plurality op.) (quoting INS v.
Aguirre-Aguirre, 526 U.S. 415, 425
(1999)). Accordingly, the Departments
are acting within their well-established
authority to define the term ‘‘particular
social group.’’
Furthermore, the Departments’
regulations regarding the adjudication of
claims pertaining to ‘‘membership in a
particular social group’’ are reasonable
interpretations of the term, as evidenced
by a long history of agency and circuit
court decisions to have interpreted the
terms consistently with the
Departments’ guidelines. See Matter of
W–G–R–, 26 I&N Dec. 208, 222–23 (BIA
2014) (pertaining to past or present
criminal activity or associations);
Cantarero v. Holder, 734 F.3d 82, 86 (1st
Cir. 2013) (same); Gonzalez v. U.S. Att’y
Gen., 820 F.3d 399, 405 (11th Cir. 2016)
(same); Matter of A–B–, 27 I&N Dec. at
320 (pertaining to presence in a country
with generalized violence or a high
crime rate and private criminal acts of
which governmental authorities were
unaware or uninvolved); Matter of S–E–
G–, 24 I&N Dec. 579, 585–86 (BIA 2008)
(pertaining to attempted recruitment of
the applicant by criminal, terrorist, or
persecutory groups); Matter of E–A–G–,
24 I&N Dec. 591, 594–95 (BIA 2008)
(same); Matter of A–M–E– & J–G–U–, 24
I&N, Dec. 69, 75 (BIA 2007) (same);
Matter of Pierre, 15 I&N Dec. 461, 462–
63 (BIA 1975) (pertaining to
interpersonal disputes of which
governmental authorities were unaware
or uninvolved); Gonzalez-Posadas v.
Att’y Gen. of U.S., 781 F.3d 677, 685 (3d
Cir. 2015) (same); Gonzales-Veliz v.
Barr, 938 F.3d 219, 230–31 (5th Cir.
2019) (pertaining to private criminal
acts of which governmental authorities
were unaware or uninvolved); DelgadoOrtiz v. Holder, 600 F.3d 1148, 1151–52
(9th Cir. 2010) (‘‘We conclude that
Petitioners’ proposed social group,
‘returning Mexicans from the United
States,’ . . . is too broad to qualify as a
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cognizable social group.’’); Sam v.
Holder, 752 F.3d 97, 100 (1st Cir. 2014)
(Guatemalans returning after a lengthy
residence in the United States is not a
cognizable particular social group).
The Departments agree with
commenters that circuit court
interpretations of the phrase ‘‘particular
social group’’ have been uneven, and
the inconsistency with which that
phrase has been evaluated strongly
militates in favor of the agencies
adopting a clearer, more uniform
definition. Further, the Departments
have considered all relevant circuit
court law on the issue and note that
significant conflicts exist among the
various interpretations. See, e.g., Paloka
v. Holder, 762 F.3d 191, 197 (2d Cir.
2014) (highlighting conflicting circuit
court decisions regarding whether
young Albanian women are a particular
social group and collecting cases
showing differing circuit court decisions
regarding cognizability of other
particular social groups). Nevertheless,
the Departments believe that the rule
reflects an appropriate and reasonable
synthesis of legal principles consistent
with the Departments’ respective policy
positions. Additionally, as noted in the
NPRM, 85 FR at 36265 n.1, to the extent
that some circuits have disagreed with
the Departments’ reasonable
interpretation, the Departments’
proposed rule would warrant reevaluation in appropriate cases under
well-established principles. See Brand
X, 545 U.S. at 982; cf. Ventura, 537 U.S.
at 16–17 (within broad limits, the INA
entrusts agencies, not circuit courts, to
make basic asylum eligibility
determinations).
The Departments disagree with
commenters’ assertions that the rule
would render it ‘‘virtually impossible’’
to prevail on asylums claim involving
membership in a particular social group
or undermine the concept of ‘‘case-bycase’’ adjudication of particular-socialgroup claims, as described in Matter of
A–B–, 27 I&N Dec. 316. Assuming the
formulation of the proposed particular
social group would, if supported, meet
the definition of such a group in the first
instance—i.e., assuming the proposed
particular social group sets forth a prima
facie case that the group is based on an
immutable or fundamental
characteristic, is defined with
particularity, and is recognized as
socially distinct—the rule does not alter
an adjudicator’s responsibility to
determine whether the facts and
evidence of each individual case
ultimately establish that the proposed
particular social group is cognizable.
Thus, whether a proposed group has—
see, e.g., Matter of Toboso-Alfonso, 20
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I&N Dec. 819, 822 (BIA 1990)
(designated as precedent by Attorney
General Order No. 1895–94 (June 12,
1994)) (homosexuals in Cuba may be a
particular social group)—or has not—
see, e.g., Matter of Vigil, 19 I&N Dec.
572, 575 (BIA 1988) (young, male,
urban, unenlisted Salvadorans do not
constitute a particular social group)—
been recognized in other cases is not
dispositive of whether the proposed
particular social group in an individual
case is cognizable. See S.E.R.L. v. Att’y
Gen., 894 F.3d 535, 556 (3d Cir. 2018)
(‘‘Consequently, it does not follow that
because the BIA has accepted that one
society recognizes a particular group as
distinct that all societies must be seen
as recognizing such a group.’’).
Adjudicators should not assume that a
particular social group that has been
found cognizable in one case is
cognizable in every other case in which
it is asserted or is cognizable in
perpetuity, nor should they assume the
opposite. Id. Rather, if the proposed
particular social group would be legally
cognizable if sufficiently supported by
evidence, adjudicators should continue
to adjudicate particular social group
claims on a case-by-case basis.
Further, as the Departments have
specified, while the listed groups would
be ‘‘generally insufficient to establish a
particular social group’’ because they do
not meet the definition of such a group,
the Departments do not entirely
foreclose the possibility of establishing
an asylum claim on those bases. Rather,
the rule simply lists social groups that,
‘‘without more,’’ generally will not meet
the particularity and social distinction
requirements for particular social group.
85 FR at 36279.
Such general guidelines are an
appropriate use of agency authority that
comports with the Attorney General’s
decision in Matter of A–B–. Cf. 8 CFR
208.4(a)(4),(5), 1208.4(a)(4), (5)
(providing general categories of
circumstances that may qualify as
changed circumstances or extraordinary
circumstances for purposes of INA
208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D)); 8
CFR 212.7(d), 1212.7(d) (‘‘The Attorney
General, in general, will not favorably
exercise discretion under section
212(h)(2) of the Act . . . with respect to
immigrant aliens who are inadmissible
under section 212(a)(2) of the Act in
cases involving violent or dangerous
crimes, except in extraordinary
circumstances[.]’’); Matter of Y–L–, 23
I&N Dec. at 274–76 (establishing a
general presumption that aggravated
felony drug trafficking crimes are
‘‘particularly serious crimes’’ for
purposes of INA 241(b)(3)(B), 8 U.S.C.
1231(b)(3)(B)). The Departments are
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providing clarity on this issue through
rulemaking, rather than through other
forms of sub-regulatory guidance or
through the development of case law in
individual adjudications, in order to
promote much needed uniformity and
clarity on the particular-social-group
issue. See also Memorandum from
Jefferson B. Sessions, III, Attorney
General, re: Prohibition on Improper
Guidance Documents 1 (Nov. 16, 2017),
https://www.justice.gov/opa/pressrelease/file/1012271/download (in
contrast with issuing informal
‘‘guidance documents,’’ ‘‘notice-andcomment rulemaking . . . has the
benefit of availing agencies of more
complete information about a proposed
rule’s effects than the agency could
ascertain on its own, and therefore
results in better decision making’’). The
Department applies the same response
to address commenters’ concerns with
respect to the ‘‘broad wording’’ of the
groups that the rule describes as
generally not cognizable for asylum
claims.
The Departments also disagree with
commenters that the rule is unwise or
discriminatory, or that the purpose of
this rule is to exclude certain groups of
applicants or target individuals from
Central America and Mexico. As stated
above, the rule is not ‘‘immoral,’’
motivated by racial animus or
promulgated with discriminatory intent.
Rather, it is rooted in case law from the
BIA, multiple circuits, and the Supreme
Court, none of which have evinced a
racial or discriminatory animus.
Further, the rule is intended to help the
Departments better allocate limited
resources in order to more expeditiously
adjudicate meritorious asylum, statutory
withholding of removal, and CAT
protection claims. Relatedly, with
respect to commenters’ concerns about
this rule’s potential effect on certain,
discrete groups—e.g., LGBTQ
individuals, minors, and other specific
nationalities—the Departments note that
they have codified a long-standing test
for determining cognizability of
particular social groups and have set
forth a list of common fact patterns
involving particular-social-group claims
that generally will not meet those wellestablished requirements. The
Departments did not first determine
which groups should or should not be
cognizable and craft a rule around that
determination, and the rule does not
single out any discretely-labeled groups
in the manner suggested by
commenters. Moreover, as the rule
makes clear, it applies ‘‘in general’’ and
does not categorically rule out specific
claims depending on the claim’s
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evidentiary support. Further, because
each asylum application is adjudicated
based on its own facts and evidentiary
support and because the rule does not
categorically rule out specific claims,
commenters’ concerns about the effects
of the rule on broad, undifferentiated
categories without reference to specific
claims are conclusory, conjectural,
unfounded, and wholly and inherently
speculative.
With respect to commenters’ claims
that the social groups that would be
dismissed under the rule would
historically encompass a large number
of potentially successful asylum claims,
the Departments reiterate that they are
setting forth, by regulation, a reasonable
interpretation of the statutory term
‘‘particular social group’’ that will
ameliorate stressors upon the healthy
functioning of our immigration system
and encourage uniformity of
adjudications. Even assuming, without
deciding, that there are other, broader
interpretations of the term ‘‘particular
social group’’ that might encompass a
larger number of asylum applicants, the
relevant inquiry is not whether the
Departments’ interpretation is the
preferred interpretation or even the best
interpretation. Rather the relevant
inquiry is whether the Departments’
interpretation is reasonable. See
Chevron, 467 U.S. at 845; see also
Holder v. Martinez Gutierrez, 566 U.S.
583, 591 (2012) (observing that the
agency’s ‘‘position prevails if it is a
reasonable construction of the [INA],
whether or not it is the only possible
interpretation or even the one a court
might think best’’). The regulations
indeed set forth a reasonable
interpretation of the term ‘‘particular
social group,’’ for the reasons described
above. The Departments also note again
that the rule will not categorically
exclude the listed groups, rather it
issues guidance that such groups will
‘‘generally’’ not meet the requirements
of a cognizable particular social group
‘‘without more.’’
Relatedly, commenters’ statements
that the rule would result in denial of
meritorious claims are circular. A claim
is meritorious if it meets all of the
statutory requirements for asylum,
including, where appropriate, the
ambiguous statutory requirement of
demonstrating ‘‘membership in a
particular social group.’’ The
Departments note the commenters’
position that the term should be defined
more broadly than what the
Departments proposed, and, to be sure,
a broader definition would result in
more groups being recognized as
cognizable. However, for the reasons
explained in the NPRM, 85 FR at
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36277–79, and throughout this
rulemaking, the Departments have set
forth a reasonable definition of the term
as part of their well-established
authority to do so. To the extent that
applicants are unable to meet the
statutory requirements, including
‘‘membership in a particular social
group’’ as that term is reasonably
defined by the Departments, their
claims are not meritorious.
The Departments believe that
commenter assertions that parties will
need to prove that they do not belong
in or are distinct from a listed particular
social group misconstrue the particular
social group analysis. People may, and
are likely to, belong to multiple groups,
which might or might not include
cognizable particular social groups. An
applicant need not prove that he or she
does not belong to a non-cognizable
group, only that he or she belongs to a
cognizable group and was persecuted on
account of that membership.
Membership in a non-cognizable group
does not negate one’s membership in a
cognizable group. Thus, an asylum
applicant who has membership in one
of the listed groups, which will
generally not be cognizable without
more, does not preclude an applicant
from prevailing on a separate cognizable
claim.
The Departments disagree with
commenter assertions that the rule
impermissibly creates a negative
presumption against cognizability of the
listed groups. As an initial point, the
listed groups, as discussed in the
NPRM, 85 FR at 36279, are generally
rooted in case law, and commenters
neither allege that the circuit court case
law underlying the listing of these
groups establishes a ‘‘negative
presumption’’ against groups that have
not been recognized in that case law,
nor urge the Departments to abandon
their longstanding policy to treat circuit
court case law as binding—including
decisions regarding the cognizability of
alleged particular social groups—in the
circuit in which it arises. Thus, to the
extent that commenters disagree with
the Departments’ codification of existing
case law, that disagreement lies with the
case law itself. Additionally, in the
Departments’ experience, many
advocates treat the recognition of a
particular social group—either by the
Board or a circuit court—as establishing
a positive presumption, if not a
categorical rule, that the group is
cognizable in every case, yet
commenters expressed no concern with
that type of presumption. Cf. S.E.R.L.,
894 F.3d at 556 (‘‘S.E.R.L. relies heavily
on [Matter of A–R–C–G–], in which the
Board considered a group consisting of
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married female victims of domestic
violence.’’); Amezcua-Preciado v. U.S.
Att’y Gen., 943 F.3d 1337, 1344 (11th
Cir. 2019) (discussing similar proposed
particular social groups across multiple
circuits that closely tracked the group
recognized by the BIA in Matter of A–
R–C–G–); Del Carmen Amaya-De
Sicaran v. Barr,—F.3d—, 2020 WL
6373124 (4th Cir. 2020) (noting
decisions from other circuits addressing
similar proposed particular social
groups that closely tracked the group
recognized by the BIA in Matter of A–
R–C–G–). As the Departments discussed,
supra, the rule does not depart from
longstanding principles regarding the
case-by-case nature of asylum
adjudications. Thus, adjudicators do not
apply a positive presumption that a
particular social group that has been
found cognizable in one case is
cognizable in every other case in which
it is asserted or is cognizable in
perpetuity, nor do they apply a
categorical negative presumption that a
group listed in the rule is always and in
every case not cognizable. Nothing in
the rule creates categorical
presumptions, either positive or
negative.
It is always the applicant’s burden to
demonstrate that he or she belongs to a
cognizable particular social group and
must set forth the facts and evidence to
establish that claim, regardless of
whether or not the proposed group is
described in this rule. INA 208(b)(1)(B),
8 U.S.C. 1158(b)(1)(B). This rulemaking
highlights common proposed groups
that generally, without more, will not
meet an applicant’s burden to
demonstrate membership in a
‘‘particular social group,’’ and the
burden remains on the applicant, as it
always has, to demonstrate that he or
she is a member of a cognizable
particular social group. Id. This
rulemaking puts applicants on notice
that such groups, generally, without
more, will not be cognizable. To the
extent that an applicant believes that his
or her membership in one of the listed
groups should nevertheless be
recognized, he or she may present his or
her claim stating why the proposed
group is cognizable and, as appropriate,
appeal it to the BIA and a Federal
circuit court.
The commenters’ statements about the
Attorney General’s authority to certify
cases and issue precedential decisions
relate to powers delegated to the
Attorney General by Congress that have
existed for decades and are far outside
of the scope of this rulemaking. INA
103(a)(1), (g), 8 U.S.C. 1103(a)(1), (g); 8
CFR 1003.1(h). All decisions in the
immigration system are made in
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accordance with the evidence and
applicable law and policy. In particular,
EOIR’s mission remains the same—to
adjudicate cases in a fair, expeditious,
and uniform manner. See EOIR, About
the Office, https://www.justice.gov/eoir/
about-office (last updated Aug. 14,
2018); see also 8 CFR 1003.1(d)(1)(ii)
(‘‘Board members shall exercise their
independent judgment and discretion in
considering and determining the cases
coming before the Board[.]’’); 8 CFR
1003.1(e)(8)(ii) (‘‘[T]he Director shall
exercise delegated authority from the
Attorney General identical to that of the
Board[.]’’); 8 CFR 1003.10(b)
(‘‘immigration judges shall exercise
their independent judgment and
discretion’’).
The Departments decline to
incorporate the commenter
recommendation to codify either the
Matter of Acosta standard for particular
social group, which required only that
a group be immutable, or the alleged
UNHCR standard, which commenters
stated requires immutability and that
the group ‘‘be perceived as a group by
society’’ in lieu of the Matter of M–E–
V–G– standard, which requires
immutability, particularity, and social
distinction. To do so would be to shirk
decades of development in particular
social group claims in favor of a
standard set forth shortly after
enactment of the Refugee Act of 1980,
when ‘‘relatively few particular social
group claims had been presented’’ to
immigration adjudicators, and which
‘‘led to confusion and a lack of
consistency’’ in subsequent years as
adjudicators struggled with ‘‘numerous
and varied’’ proposed groups. See
Matter of M–E–V–G–, 26 I&N Dec. at
231. Moreover, ‘‘immutability, while
important, has never been the last or
only word on the definition of a social
group,’’ because ‘‘[m]any social groups
are labile in nature.’’ Ahmed v.
Ashcroft, 348 F.3d 611, 617 (7th Cir.
2003). Further, notwithstanding the
commenter’s statement that the M–E–V–
G– standard is confusing, the
Departments note that the nearly all of
the circuits have applied the M–E–V–G–
test and the Third and Ninth Circuits
have expressly accorded Chevron
deference to that framework. See, e.g.,
S.E.R.L., 894 F.3d at 554 n.20 (collecting
cases). As the commenter notes, the
Seventh Circuit has neither rejected nor
endorsed the framework.
Relatedly, the Departments will not
incorporate commenter suggestions to
expand the regulatory language with
respect to the requirement of
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immutability to include characteristics
that are ‘‘so fundamental to individual
identity or conscience that it ought not
be required to be changed[,]’’ as stated
in Matter of Acosta. 19 I&N Dec. at 233.
Contrary to the commenter’s assertion,
the Departments clearly noted in the
NPRM that this rulemaking codifies the
‘‘longstanding requirements’’ of
immutability, particularity, and social
distinction, recognizing that
‘‘[i]mmutability entails a common
characteristic: A trait that the members
of the group either cannot change, or
should not be required to change
because it is fundamental to their
individual identities or consciences.’’ 85
FR at 36278 (internal quotations
omitted) (citing Matter of Acosta, 19
I&N Dec. at 233). Accordingly, the
Departments believe that this language
adequately addresses the commenter
concerns without further expanding the
definition in the regulatory language.
The Departments disagree with
commenters’ concerns that the rule’s
requirement that the particular social
group must have existed independently
of the alleged persecutory acts and
cannot be defined exclusively by the
alleged harm is arbitrary. 85 FR at
36278. This codifies the Attorney
General’s analysis for determining
whether a social group has been defined
‘‘circularly,’’ as laid out in Matter of A–
B–, 27 I&N Dec. at 334 (‘‘To be
cognizable, a particular social group
must ‘exist independently’ of the harm
asserted in an application for asylum or
statutory withholding of removal.’’); see
generally Matter of M–E–V–G–, 26 I&N
Dec. at 243 (‘‘The act of persecution by
the government may be the catalyst that
causes the society to distinguish [a
collection of individuals] in a
meaningful way and consider them a
distinct group, but the immutable
characteristic of their shared past
experience exists independent of the
persecution.’’). In response to
commenters’ assertions that the
Convention allows for particular social
groups that do not exist independently
of the persecution, and that this rule
reflects a ‘‘departure’’ from the current
particular-social-group adjudication, the
Departments reiterate that ‘‘[t]he
‘independent existence’ formulation’’
has existed for some time and ‘‘has been
accepted by many courts.’’ 85 FR at
36278; see, e.g., Perez-Rabanales v.
Sessions, 881 F.3d 61, 67 (1st Cir. 2018)
(‘‘A sufficiently distinct social group
must exist independent of the
persecution claimed to have been
suffered by the alien and must have
existed before the alleged persecution
began.’’); Lukwago, 329 F.3d at 172
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(‘‘We agree that under the statute a
‘particular social group’ must exist
*COM007*independently of the
persecution suffered by the applicant for
asylum.’’); accord Amaya-De Sicaran,
2020 WL 6373124 at *5 (‘‘The
proposition that a cognizable particular
social group cannot be defined by the
underlying persecution is hardly
controversial. The anti-circularity
principle—and the Chevron deference to
which it is entitled—has won wide
acceptance among the circuit courts
. . . . Even prior to the Attorney
General’s decision, we have applied the
anti-circularity principle . . . . And a
broader examination of caselaw preMatter of A–B– confirms that this is no
new proposition.’’).
In recent litigation, asylum seekers
did ‘‘not challenge A–B–’s description of
the circularity rule’’ and, the court
determined, A–B–’s test sets forth
‘‘exactly the analysis required to
determine whether a particular claim is
or is not circular.’’ Grace II, 965 F.3d at
905. For courts that have rejected this
‘‘independent existence’’ requirement,
see, e.g., Cece, 733 F.3d at 671–72, both
subsequent decisions recognizing the
requirement, see, e.g., Matter of A–B–,
27 I&N Dec. 316, and Matter of M–E–V–
G–, 26 I&N Dec. 227, and the
Departments’ proposed rule codifying it
would warrant re-evaluation under
well-established principles, see Brand
X, 545 U.S. at 982; see also Amaya-De
Sicaran, 2020 WL 6373124 at *5 (‘‘The
Attorney General’s [anti-circularity
formulation] in Matter of A–B– is not
arbitrary and capricious.’’).
The Departments disagree with
commenters’ concerns about due
process violations with respect to the
rule’s requirement that, while in
proceedings before an immigration
judge, an applicant must ‘‘first define
the proposed particular social group as
part of the asylum application or
otherwise in the record’’ or ‘‘waive any
claim based on a particular social group
formulation that was not advanced.’’ To
the extent that this requirement
allegedly ‘‘goes further than’’ Matter of
W–Y–C–& H–O–B–, 27 I&N Dec. 189, as
the commenter alleges, this requirement
is merely a codification of the
longstanding principle that arguments
not made in front of an immigration
judge are deemed waived for purposes
of further review. See, e.g., In re
J–Y–C–, 24 I&N Dec. 260, 261 n.1 (BIA
2007) (claim not raised below is not
appropriate to consider on appeal).
Contrary to commenters’ concerns,
the rule does not violate notions of
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fairness or due process.43 Nothing in the
rule eliminates an alien’s right to notice
and an opportunity to be heard, which
are the foundational principles of due
process. See Matthews v. Eldridge, 424
U.S. 319, 348–49 (1976) (‘‘The essence
of due process is the requirement that a
person in jeopardy of serious loss (be
given) notice of the case against him and
opportunity to meet it.’’ (cleaned up)).
Aliens remains subject to specified
procedures regarding claims of a fear of
return to an alien’s country of
nationality, including the ability to have
a claim reviewed or heard by an
immigration judge. Moreover, the fact
that applicable law may limit the types
of claims an alien may bring—e.g., an
asylum claim based on a fear of
persecution unrelated to one of the five
statutory grounds in INA 101(a)(42), 8
U.S.C. 1101(a)(42)—or the ability of an
alien to bring an asylum or statutory
withholding claim at all—e.g., an alien
convicted of an aggravated felony for
which the alien was sentenced to an
aggregate term of imprisonment of at
least five years, INA 208(b)(2)(A)(ii),
(B)(i) and 241(b)(3)(B)(ii), 8 U.S.C.
1158(b)(2)(A)(ii), (B)(i) and
1231(b)(3)(B)(ii)—does not mean that an
alien has been deprived of due process.
As explained in the NPRM and
reiterated herein, this rule is rooted in
well-established law and does not
violate an alien’s due process right
regarding an application for relief or
protection from removal.
Some commenters objected to the
procedural requirement that an alien
must initially define the proposed
particular social group as either part of
the record or with the application. The
INA directs the Attorney General to
establish procedures for the
consideration of asylum applications,
INA 208(d)(1), 8 U.S.C. 1158(d)(1), and
regulations already require both an
43 Asylum is a discretionary benefit demonstrated
by the text of the statute that states the Departments
‘‘may grant asylum,’’ INA 208(b)(1)(A), 8 U.S.C.
1158(b)(1)(A) (emphasis added); Dep’t of Homeland
Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1965 n.4
(2020) (‘‘A grant of asylum enables an alien to enter
the country, but even if an applicant qualifies, an
actual grant of asylum is discretionary.’’), and
provides authority to the Attorney General and
Secretary of Homeland Security 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, ‘‘there is no
constitutional right to asylum per se.’’ Mudric v.
Att’y Gen. of U.S., 469 F.3d 94, 98 (3d Cir. 2006).
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.
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application for an alien to seek asylum,
8 CFR 208.3(a) and 1208.3(a), and that
the application be completed in full to
be filed, id. 208.3(c)(3) and 1208.3(c)(3).
To the extent that some commenters’
concerns regarded the exactness with
which an alien must define the
particular social group, the Departments
note that most asylum applicants, 87
percent, have representation, EOIR,
Current Representation Rates (Oct. 13,
2020), https://www.justice.gov/eoir/
page/file/1062991/download, and that
aliens, if of limited English proficiency,
are able to avail themselves of the
resources provided to them by the
government that detail pro bono or low
cost alternatives.
One commenter worried that an alien
would have to ‘‘expertly craft arguments
in the English language in a way that
satisfies highly technical legal
requirements.’’ The Department
disagrees that this is what the
regulations require. As an initial point,
nothing in the rule requires an alien to
craft arguments when applying for
asylum. Aliens, with or without
representation, have filled out asylum
applications for decades, including by
stating particular social groups as a
basis for the asylum claim. Commenters
have not submitted any evidence or
alleged any change in an alien’s ability
to complete the application over the
preceding 40 years, and the
Departments are unaware of any reasons
or allegations that aliens are now less
capable of filling out an application—
including stating a particular social
group, if appropriate—that has been
used for years. An alien simply has to
state in the application why the alien is
afraid. As noted in the NPRM, the
specific form of the delineation will not
be considered over and above the
substance of the alleged particular social
group. Further, if there are deficiencies,
the alien will be provided an
opportunity to correct them. Nothing in
the rule requires aliens to ‘‘craft
arguments’’ meeting ‘‘highly technical
legal requirements,’’ and commenters’
suggestions to the contrary are simply
not consistent with either the rule and
the longstanding practice.
One commenter indicated that it was
the asylum officer’s or immigration
judge’s duty to assist in developing the
record, citing section 240(b)(1) of the
Act, 8 U.S.C. 1229a(b)(1); Jacinto, 208
F.3d at 734 (an immigration judge has
the duty to fully develop the record
where a respondent appears pro se); and
Agyeman v. INS, 296 F.3d 871, 877 (9th
Cir. 2002) (an immigration judge must
adequately explain the procedures to
the respondent, including what he must
prove to prevail at the hearing). Even
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accepting the immigration judge’s duty
as described by the cited case law, this
is not in conflict with the rule, as the
rule clearly explains by regulation what
an applicant must do to demonstrate a
cognizable particular social group, a
concept which was previously
articulated in disparate BIA decisions
that have been interpreted differently by
the various circuits. Additionally, even
if, as stated in Jacinto, an immigration
judge has a duty to fully develop the
record, this does not obviate the
applicant’s burden of demonstrating at
least prima facie eligibility for the relief
which he or she is seeking prior to
proceeding to a more intensive hearing.
Regarding commenters’ concerns
focused on the ability for aliens to seek
redress after an improper particular
social group was presented based on
ineffective assistance of counsel, the
Departments note that the rule is
consistent with both practice and
applicable law. If a particular social
group is not presented because the alien
did not tell his or her counsel about it,
then there has been no ineffective
assistance on the part of counsel. If the
alien did provide his or her counsel
with a particular social group and
counsel elected not to present it as a
strategic choice, then there is no basis
to reopen the proceedings. See In re B–
B–, 22 I&N Dec. 309, 310 (BIA 1998)
(‘‘subsequent dissatisfaction with a
strategic decision of counsel is not
grounds to reopen’’); cf. Matter of
Velasquez, 19 I&N Dec. 377, 382 (BIA
1986) (concession of attorney is binding
on an alien absent egregious
circumstances). Nevertheless, the
Departments recognize there may be
unique ‘‘egregious circumstances’’ in
which reopening based on ineffective
assistance of counsel may be warranted,
provided that the appropriate
procedural requirements for such a
claim are observed. See Matter of
Lozada, 19 I&N Dec. 637, 639 (BIA
1988). Thus, the Departments are
revising the final rule to account for
such a scenario, though they expect
such claims to be rare.
The Departments disagree with the
commenters’ fairness concerns with
respect to the rule’s requirement that
applicants define the proposed
particular social group as part of the
asylum claim. As an initial point,
asylum applicants have provided
definitions of alleged particular social
groups in asylum applications for many
years, and there is no evidence of any
recent change that would preclude them
from doing so. The commenters’
concerns may be based on an inaccurate
belief that the rule requires legal
precision of a particular social group,
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but as discussed above, that is simply
not the case. Adjudicators are
experienced with addressing the
substance rather than the form of a
claim, and articulation deficiencies will
have an opportunity for correction
before an immigration judge renders a
decision.
The Departments also acknowledge
commenters’ concerns about the ‘‘ever
changing landscape’’ of particularsocial-group law and the due process
concerns associated with that. The
‘‘ever-changing landscape’’ is, in fact, a
principal animating factor behind this
rulemaking, as the Departments believe
the rule will function as a ‘‘hard reset’’
on the divergent—and sometimes
contradictory—case law regarding
particular social groups over the past
several years in lieu of clearer
guidelines that are both reasonable and
easier for adjudicators and applicants
alike to follow. In particular, the current
state of case law may make it confusing
for applicants to appreciate what is or
is not a cognizable group, and the rule
directly addresses that concern by
providing clear definitions that should
allow for more effective consideration of
meritorious claims. In short, providing
clearer guidance should reduce due
process concerns, rather than increase
them.
Similarly, the Departments disagree
that this rulemaking will be harmful to
pro se respondents. Although there are
comparatively few pro se asylum
applicants as an initial matter, EOIR,
Current Representation Rates (Oct. 13,
2020), https://www.justice.gov/eoir/
page/file/1062991/download, the
Departments believe that this regulation
will provide clarity to all respondents,
including those who are pro se. That
clarity will also allow immigration
judges to better consider pro se claims
and ensure that the record is developed
appropriately consistent with the law.
The Departments believe that this
clarity will also assist immigration
judges in their adjudications, contrary to
commenters’ assertions. The
Departments also disagree with
commenters’ statements that reducing
the amount of time that adjudicators
must spend evaluating claims is an
improper purpose for the rule. The
Departments contest allegations that
they may not take regulatory action to
help improve efficiencies with
immigration adjudications. Regardless,
as noted in the NPRM, reducing the
amount of time that adjudicators must
spend evaluating claims and more
uniform application of the law are two
additional benefits to ‘‘providing clarity
to [the particular social group] issue.’’
85 FR at 36279.
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The Departments note commenter
concerns that the rule does not create a
regulatory requirement for immigration
judges to clarify the particular social
group for the record and instead allows
for immigration judges to pretermit
without holding an evidentiary hearing.
The Departments note that the asylum
application itself, which the applicant
must sign attesting to the application’s
accuracy, and in which the applicant
has had the opportunity to list his or her
particular social group, is already part of
the record without any further need for
the immigration judge to clarify.
Because the burden is always on the
asylum applicant to establish eligibility,
INA 208(b)(1)(B), 8 U.S.C. 1158(b)(1)(B),
and because the immigration judge must
remain a neutral arbiter of the claim,
EOIR, Ethics and Professionalism Guide
for Immigration Judges 2 (Jan. 26, 2011),
https://www.justice.gov/sites/default/
files/eoir/legacy/2013/05/23/Ethicsand
ProfessionalismGuideforIJs.pdf (‘‘An
Immigration Judge shall act impartially
and shall not give preferential treatment
to any organization or individual when
adjudicating the merits of a particular
case.’’), it would not be appropriate for
the immigration judge to assist the alien
in crafting his or her claim.
Nevertheless, immigration judges are
experienced and well-trained
adjudicators who are adept at
understanding the substance of a claim
even if it is not perfectly articulated.
Moreover, an alien will have 10 days to
respond to any attempt to pretermit an
application as legally insufficient, and
there is no expectation that immigration
judges will fail to follow the rule’s
requirements on that issue. In short, the
Departments do not expect immigration
judges to abdicate their duties to the law
in considering an applicant’s asylum
claim.
The Departments disagree with
commenters’ concerns that the rule, in
their estimation, violates the
Rehabilitation Act of 1973, 29 U.S.C.
794, because it does not provide
exceptions for minors, mentally ill
persons, or individuals otherwise
lacking competency.44 The Departments
note that no alien is excluded from
applying for asylum—nor excluded
from participating in processes to
adjudicate such an application—on
account of a disability. Further, all
applicants for asylum are adjudicated
under the same body of law, regardless
of any particular individual
44 The Departments note that the Rehabilitation
Act applies to individuals with disabilities, and the
status of being a minor does not automatically
qualify someone as an ‘‘individual with a
disability’’ under the statutory definition of that
term. 29 U.S.C. 705(2).
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characteristics, and nothing in the rule
changes that. The Departments are
unaware of any law requiring all asylum
claims from minors, mentally ill
persons, or incompetent aliens to be
granted or establishing a categorical rule
that each of those groups, regardless of
any other characteristics, necessarily
states a cognizable particular social
group. The Departments are also
unaware of any blanket exceptions to
statutory eligibility for asylum for these
identified groups. The rule does not
change any established law regarding
minors, e.g., INA 208(b)(3)(C), 8 U.S.C.
1158(b)(3)(C), or those who lack mental
competency, e.g., Matter of M–A–M–, 25
I&N Dec. at 480, 481–83 (holding that
immigration judges should ‘‘consider
indicia of incompetency throughout the
course of proceedings’’ and implement
appropriate safeguards, where
necessary). In short, the rule provides
clarity for asylum claims relevant to all
aliens and does not alter any existing
accommodations generally made for the
identified groups. Further, because each
asylum application is adjudicated based
on its own facts and evidentiary support
and because the rule does not
categorically rule out specific claims,
commenters’ concerns about the effects
of the rule on broad, undifferentiated
categories without reference to specific
claims are conclusory, conjectural,
unfounded, and wholly and inherently
speculative.
4.1.1. Past or Present Criminal Activity
or Association (Including Gang
Membership)
Comment: One organization noted
that at least one court has recognized
asylum claims from former child
soldiers forced to commit bad acts,
citing Lukwago, 329 F.3d at 178–180.
The organization also stated that the
United States has enacted the Child
Soldiers Accountability Act, Public Law
110–340, imposing criminal and
immigration penalties for those who use
child soldiers. See 18 U.S.C. 2442. The
organization emphasized that children
recruited into other types of criminal
acts, like gang activity, ‘‘are not
materially different from the children
who fight on the front lines of conflicts
in other parts of the world.’’ The
organization concluded by encouraging
the government to extend its opposition
to the use of child soldiers to ‘‘a
willingness to protect children fleeing
from all types of forced criminal
activity.’’
Another organization emphasized that
past activity is an immutable
characteristic that ‘‘cannot be undone,’’
noting that an individual’s personal
biographical history cannot be changed.
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The organization noted that if a gang
maintains that a child forcibly recruited
is a member for life, the child would be
regarded as a traitor for trying to leave
the gang at a later time and would have
a reasonable basis to fear for his or her
life.
One organization alleged that the rule
would change the law ‘‘without
explanation or justification’’ by
overturning the decisions of multiple
Federal courts of appeals. The
organization specifically referenced
Urbina-Mejia v. Holder, 597 F.3d 360
(6th Cir. 2010) and Benitez Ramos v.
Holder, 589 F.3d 426 (7th Cir. 2009).
The organization claimed this would be
contrary to the stated goal of the
‘‘laundry list,’’ which is legal
consistency. See 85 FR at 36278. The
organization also contended that the
rule would be contrary to the intent
behind the asylum bars, which preclude
asylum based on a range of criminal
conduct but ‘‘pointedly’’ do not
preclude relief on account of previous
gang membership. INA 208(b)(2)(A)–(B),
8 U.S.C. 1158(b)(2)(A)–(B). The
organization also claimed the rule is
contrary to congressional intent,
claiming it makes no attempt to explain
‘‘why the statutory bars’’ on particular
former persecutors ‘‘should be extended
by administrative interpretation to
former members of gangs.’’ Benitez
Ramos, 589 F.3d at 430.
Response: The Departments note that
the case cited by the commenter,
Lukwago, 329 F.3d 157, which the
commenter alleges recognized the
likelihood of a cognizable particular
social group involving former child
soldiers, was published in 2003, well
before the now-codified test for
cognizability had been developed in
Matter of S–E–G–, 24 I&N Dec. at 585–
86 and Matter of E–A–G–, 24 I&N Dec.
at 594–95. See Matter of M–E–V–G–, 26
I&N Dec. at 236–37 & n.11. Accordingly,
this decision does not lend support to
the commenter’s claim. The
Departments further note, however, that
the court in Lukwago acknowledged that
‘‘given the ambiguity of the [term
‘‘particular social group’’], [the court’s]
role is limited to reviewing the BIA’s
interpretation, using Chevron deference
to determine if it is a ‘‘permissible
construction of the statute.’’ Lukwago,
329 F.3d at 171. Additionally, the Child
Soldiers Accountability Act is unrelated
to this rulemaking.
Although past activity is an
immutable characteristic, immutability
alone is not sufficient to establish a
cognizable particular social group;
particularity and social distinction are
also required. See Matter of S–E–G–, 24
I&N Dec. at 585–86; Matter of E–A–G–,
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24 I&N Dec. at 594–95; Matter of M–E–
V–G–, 26 I&N Dec. at 237.
The Departments disagree with
commenters that the rule would
undermine establishing legal
consistency and uniformity in the
immigration laws, as it should
encourage such consistency across all
circuits by providing much-needed
guidance on an ambiguous term in the
Act. In fact, the circuits are themselves
split on the issue of whether former
gang membership is cognizable as a
particular social group. Compare
Martinez v. Holder, 740 F.3d 902, 910–
12 (4th Cir. 2014) (former member of a
criminal street gang may be a particular
social group) and, Benitez-Ramos v.
Holder, 589 F.3d 426, 430–31 (7th Cir.
2009) (same), with Gonzalez v. U.S.
Att’y Gen., 820 F.3d 399, 405 (11th Cir.
2016) (agreeing with First Circuit that
former gang members do not constitute
a cognizable ‘‘particular social group’’);
Cantarero v. Holder, 734 F.3d 82, 85–86
(1st Cir. 2013) (‘‘The BIA reasonably
concluded that, in light of the manifest
humanitarian purpose of the INA,
Congress did not mean to grant asylum
to those whose association with a
criminal syndicate has caused them to
run into danger. . . . Such recognition
would reward membership in an
organization that undoubtedly wreaks
social harm in the streets of our country.
It would, moreover, offer an incentive
for aliens to join gangs here as a path to
legal status.’’); and Arteaga v. Mukasey,
511 F.3d 940, 945–46 (9th Cir. 2007)
(‘‘We cannot conclude that Congress, in
offering refugee protection for
individuals facing potential persecution
through social group status, intended to
include violent street gangs who assault
people and who traffic in drugs and
commit theft.’’). See also Cong. Research
Serv., Asylum and Gang Violence: Legal
Overview 20 (Sept. 5, 2014) (‘‘Granting
asylum to aliens based on their
membership in groups made up of
former gang members is more
complicated in that several Federal
courts of appeals have evidenced at
least some willingness to view former
gang members as a particular social
group, while others have suggested that
granting asylum to those who belong to
organizations that have perpetrated acts
of violence or other crimes in their
home countries is contrary to the
humanitarian purposes of asylum.’’). To
the extent that commenters assert that
circuit case law conflicts with the
Departments’ rule, such conflicts would
warrant re-evaluation in appropriate
cases by the circuits under wellestablished principles. See Brand X, 545
U.S. at 982.
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4.1.2. Presence in a Country With
Generalized Violence or a High Crime
Rate
Comment: One commenter objected
generally to the fact that the rule
excludes asylum seekers coming from
‘‘a country with generalized violence or
a high crime rate,’’ as the commenter
believes this to be irrelevant. The
commenter stated that the restriction
appears designed to target individuals
from specific countries and runs
contrary to the purpose of asylum. The
commenter stated that ‘‘[i]t is natural’’
for people to flee countries with
violence that the governments are
unable to control. One organization
claimed the restriction will have a
prejudicial impact on asylum seekers
from Central America. Another
organization specifically referenced the
high crime rate in many African
countries, claiming that violence is
‘‘rampant’’ due to ‘‘national security
forces’’ and ‘‘copycat violators.’’
Another commenter stated generally
that ‘‘[t]he choice for them was to be
killed and/or raped or to risk the
hardships of seeking asylum in the
U.S.,’’ alleging that the frequency of
these types of abuses does not make it
reasonable to exclude them from
eligibility for asylum claims. One
organization claimed the restriction
would unfairly impact LBGTQ+
individuals who are ‘‘disproportionately
victimized’’ by violent crime and
gender-based violence.
One organization noted that it would
be ‘‘difficult if not impossible’’ to meet
the three-prong test found in Matter of
M–E–V–G–, 26 I&N Dec. at 237, using a
claim in which the particular social
group is based on ‘‘presence in a county
with generalized violence or a high
crime rate.’’ However, the organization
expressed concern that this restrictive
language (which it claims is not directly
related to the particular social group
definition at issue) would likely cause
adjudicators to deny asylum
applications solely because the
applicant came from a country with a
high crime rate, even if the applicant
were to articulate a particular social
group unrelated to the crime rate.
One organization claimed the rule is
contrary to established case law
recognizing that presence in a country
with generalized violence or a high
crime rate is ‘‘irrelevant’’ to evaluating
an asylum seeker’s claim. The
organization noted that the Fourth
Circuit has explained in at least three
published opinions that criminal
activities of a gang affecting the
population as a whole are ‘‘beside the
point’’ in evaluating an asylum seeker’s
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80319
particular claim. See Alvarez-Lagos v.
Barr, 927 F.3d 236, 251 (4th Cir. 2019);
Zavaleta-Policiano v. Sessions, 873 F.3d
241, 248 (4th Cir. 2017); CrespinValladares v. Holder, 632 F.3d 117, 127
(4th Cir. 2011).
Another organization alleged that the
‘‘social distinction’’ requirement makes
it nearly impossible to develop a
cognizable particular social group that
does not reference the asylum seeker’s
country of origin. As a result, the
organization claimed the rule would
‘‘upend’’ section 208 of the Act, 8 U.S.C.
1158, by preventing individuals fleeing
‘‘the most violent countries in the
world’’ from receiving asylum or
withholding of removal. The
organization also contended that the
‘‘generalized violence’’ category is
arbitrary to the extent it attempts to
codify the statement in Matter of A–B–
that particular claims are unlikely to
satisfy the statutory grounds for
demonstrating government inability or
unwillingness to control the
persecutors. Matter of A–B–, 27 I&N Dec.
at 320. The organization claimed that
attempting to codify that statement
conflates two distinct elements of the
asylum test, as the question of whether
the government can control persecutors
is distinct from whether a particular
social group is cognizable. The
organization also alleged that the
Departments do not acknowledge or
justify this conflation.
Response: The Departments
acknowledge commenters’ points that
generalized violence may be a driving
force behind many people fleeing their
home countries. Although the suffering
caused by such conditions is regrettable,
the Departments note that asylum was
never intended to protect individuals
from generalized violence; instead, it
was designed to protect those from
violence perpetrated upon them on the
basis of a protected ground, as well as
other qualifying requirements. See
Harmon v. Holder, 758 F.3d 728, 735
(6th Cir. 2014) (‘‘General conditions of
rampant violence alone are insufficient
to establish eligibility.’’).
Although circuit courts may not have
been clear whether asylum claims based
on fear of generalized violence or high
crime rates are not cognizable on
particular social group grounds or on
nexus grounds (or on both
grounds),45 see, e.g., Melgar de Torres v.
Reno, 191 F.3d 307, 314 (2d Cir. 1999)
(‘‘The increase in general crime that has
been documented in the record does not
45 Although the Departments have placed this
category under the definition of ‘‘particular social
group,’’ it may also be appropriately considered
under the definition of ‘‘nexus’’ as well, as the lists
under both definitions are nonexhaustive.
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lend support to an asylum claim since
a well-founded fear of persecution must
be on account of an enumerated ground
set forth in the Act, and general crime
conditions are not a stated ground.’’);
Umana-Ramos v. Holder, 724 F3d 667,
670 (6th Cir. 2013) (‘‘General conditions
of rampant gang violence alone are
insufficient to support a claim for
asylum.’’), they have been consistent
that such fears are not a cognizable basis
for asylum, even, contrary to one
commenter, in the Fourth Circuit. See,
e.g., D.M. v. Holder, 396 F. App’x 12, 14
(4th Cir. 2010) (‘‘As found by the Board,
the Petitioners have failed to show that
they are at a greater risk of being victims
of violent acts at the hands of criminal
gangs than any other member of the
general population in El Salvador. We
have clearly held that a fear of general
violence and unrest is inadequate to
establish persecution on a protected
ground.’’).
The Departments believe that this
rule—which establishes that particularsocial-group claims grounded in an
applicant’s presence in a country with
general violence or high crime rates,
without more, will generally not be
cognizable—is consistent with the Act,
international law, and case law,
particularly in connection to the
definition of particular social group
discussed, supra, which requires that
the group exist independently of the
alleged harm. Relatedly, commenters’
allegations that the rule was crafted in
response to the frequency of types of
harm suffered are misguided. With
respect to establishing a nexus to a
protected ground, such as particular
social group, it is not the frequency or
severity of abuses that would render
such claims insufficient, but rather the
reasons for the abuse. Asylum is
intended to protect individuals who
have suffered abuses for a specific
reason, on account of a protected
ground. Cf. Delgado-Ortiz, 600 F.3d at
1151 (‘‘Asylum is not available to
victims of indiscriminate violence,
unless they are singled out on account
of a protected ground.’’).
The Departments further note that an
alien coming from a country with
generalized violence or high crime rates
is not precluded from asylum on that
basis alone; the rule merely establishes
that a particular-social-group claim
premised upon general violence or high
crime rates will not, without more,
prevail. To succeed on a particularsocial-group claim, an applicant must
demonstrate that he or she has been or
will be targeted on the basis of
immutable, particular, and socially
distinct characteristics, and the
Departments believe that groups defined
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by general violence or high crime rates
generally do not meet this threshold.
The Departments do not disagree with
commenters who suggested that it
would be natural for individuals to flee
countries where their governments
could not control violence. Indeed there
are myriad reasons that would
encourage or compel an individual to
leave his or her home country. However,
a government’s inability or
unwillingness to control violence is but
one factor for asylum eligibility with
respect to claims of persecution by nonstate actors. Applicants must meet all
eligibility factors and merit a positive
exercise of discretion to warrant relief.
The Departments agree with
commenters who stated that it would be
difficult for applicants whose particular
social group is predicated upon general
violence or high crime rates in the
country of origin to demonstrate that
their proposed group meets all three
requirements of immutability,
particularity, and social distinction.
However, the Departments do not
believe that a regulatory standard stating
so would lead adjudicators to deny
applications where the applicant has
articulated a particular social group
unrelated to the crime rate. Rather, the
Departments believe that this
rulemaking offers clear guidance to
adjudicators and parties that such
proposed groups, without more, will not
be cognizable. See 85 FR at 36278 (‘‘The
proposed rule would further build on
the BIA’s standards and provide clearer
guidance to adjudicators regarding
whether an alleged group exists and, if
so, whether it is cognizable as a
particular social group in order to
ensure the consistent consideration of
asylum and statutory withholding
claims.’’). Furthermore, immigration
judges and asylum officers undergo
training in which they learn to
adjudicate asylum claims, including the
cognizability of particular social groups.
The Departments are confident that
adjudicators are aptly prepared, through
training and experience, to adjudicate
asylum claims without confusing the
particular-social-group analysis with
other facets of asylum eligibility
requiring a separate analysis.
With respect to commenter statements
that this rule is contrary to established
case law which, the commenter stated,
established that a country’s generalized
violence and high crime rates were
‘‘irrelevant’’ to the applicant’s claim, the
commenter appears to have conflated
relevance for sufficiency. The Fourth
Circuit, in the cited cases, determined
that generalized violence or high crime
rate did not undermine claims where
the court determined there was
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sufficient evidence to establish a nexus
to a protected ground. However, these
cases do not endorse a position that
claims rooted in generally violent
conditions or high crime rates, without
more, would be sufficient to warrant a
grant of asylum. See Alvarez-Lagos, 927
F.3d at 251; Zavaleta-Policiano, 873
F.3d at 248; Crespin-Valladares, 632
F.3d at 127.
4.1.3. Being the Subject of a Recruitment
Effort by Criminal, Terrorist, or
Persecutory Groups
Comment: One organization noted
that the rule narrows the definition of
credible fear by ‘‘eliminating claims to
protection from fear of gangs or
terrorists.’’ Another organization
claimed there is no support in the cases
cited by the NPRM for making gang
recruitment-related particular social
groups generally non-cognizable,
emphasizing that the NPRM does not
provide any evidence as to why the
courts should not continue to consider
recruitment-based particular social
groups on a case-by-case basis.
One organization noted that the U.S.
government recognizes that children are
often targets for gang recruitment and
gang violence in their home countries.
The organization expressed concern
regarding the rule’s presumption that
‘‘attempted recruitment’’ or ‘‘private
criminal acts’’ are not sufficient for
asylum, contending this ignores the
reality that many child asylum seekers
flee their home countries ‘‘precisely
because the government is unable or
unwilling to control non-state actors
like terrorist or gang organizations who
would recruit or harm children and
families.’’
One organization noted that UNHCR
has emphasized the importance of
recognizing claims based on resistance
to and desertion from non-state armed
groups, explaining that gangs may try to
harm individuals who have resisted
gang activity, are opposed to gang
practices, or attempt to desert a gang.
Response: The Departments disagree
with the commenter’s assertion that the
rule eliminates any claims to protection.
As stated above, the rule will not
eliminate any particular-social-group
claims. Rather, it sets forth a list of
social group claims that will generally
not be, without more, cognizable. This
does not foreclose the possibility that an
applicant could pursue or prevail on a
claim in which they were the subject of
a recruitment effort by a criminal,
terrorist, or persecutory group. As noted
by the NPRM, ‘‘such facts could be the
basis for finding a particular social
group, given the fact- and societyspecific nature of this determination.’’
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85 FR at 36279; see also Grace II, 965
F.3d at 906 (‘‘[T]he record in this case
does not support the asylum seekers’
argument that [the Departments] have
erected a rule against asylum claims
involving allegations of domestic and/or
gang violence.’’). However, as a general
rule, such groups will not be cognizable,
consistent with existing Attorney
General and BIA precedent. Matter of
A–B–, 27 I&N Dec. at 335 (‘‘Victims of
gang violence often come from all
segments of society, and they possess no
distinguishing characteristic or concrete
trait that would readily identify them as
members of such a group’’); Matter of S–
E–G–, 24 I&N Dec. at 584 (‘‘[Y]outh who
have been targeted for recruitment by,
and resisted, criminal gangs may have a
shared past experience, which, by
definition, cannot be changed. However,
this does not necessarily mean that the
shared past experience suffices to define
a particular social group for asylum
purposes.’’); Matter of E–A–G–, 24 I&N
Dec. at 594–95 (determining that
‘‘persons resistant to gang membership’’
is not cognizable); see also Constanza v.
Holder, 647 F.3d 749, 754 (8th Cir.
2011); see also Lizama v. Holder, 629
F.3d 440, 447 (4th Cir. 2011); Larios v.
Holder, 608 F.3d 105, 109 (1st Cir.
2010); Lushaj v. Holder, 380 F. App’x
41, 43 (2d Cir. 2010); Barrios v. Holder,
581 F.3d 849, 855 (9th Cir. 2009). The
Departments do not dispute that
children may be targets for gangs, gang
recruitment, and gang violence in their
countries of origin. However, whether
such applicants for asylum have been
harmed or fear harm from the gangs is
only one part of the overall asylum
inquiry. Even a further showing that the
government is unwilling or unable to
protect the applicant would not be
enough to merit a grant of asylum
without meeting the other eligibility
requirements. As discussed above, an
applicant must also demonstrate that
the harm he or she suffered or fears is
on account of protected ground, such as
membership in a particular social group.
4.1.4. The Targeting of the Applicant for
Criminal Activity for Financial Gain
Based on Perceptions of Wealth or
Affluence
Comment: Another organization
claimed that history is full of examples
of persecution of classes of people on
the basis of perceived wealth or
influence. The organization stated that,
under the proposed rule, the members
of the kulak class who were killed after
the Russian Revolution or the many
wealthy and middle class Cubans who
fled the Cuban Revolution would not
have been recognized as persecuted
social groups.
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Another organization contended that
there is no legal basis or support in the
NPRM for precluding courts from
analyzing particular social groups
involving wealth on a case-by-case
basis. The organization referenced the
BIA’s decision in Matter of A–M–E– & J–
G–U–, 24 I&N Dec. 69 (BIA 2007), aff’d
Ucelo-Gomez v. Mukasey, 509 F.3d 70
(2d Cir. 2007) (cited at 85 FR at 36279),
stating the fact that the BIA held
thirteen years ago that ‘‘affluent
Guatemalans’’ is not a cognizable
particular social group ‘‘does not even
begin to support the NPRM’s sweeping
proposal to bar all PSGs that mention
wealth.’’
Response: As noted in the NPRM, a
social group which is founded upon
being targeted for criminal activity for
financial gain or for perceptions of
wealth or affluence are generally,
without more, unable to meet the wellestablished requirements for
cognizability. 85 FR at 36279; see Matter
of A–M–E– & J–G–U–, 24 I&N Dec. at 75.
With respect to commenters who
presented specific examples that they
alleged illustrated persecution of classes
of people on the basis of perceived
wealth or influence, as well as
comments suggesting that the
Departments are doing away with
individualized analysis, the
Departments note again that there may
exist examples of social groups based on
wealth that are cognizable, and that the
listed social groups have been identified
as generally not cognizable, without
more. However, ‘‘the regulation does not
foreclose that, in rare circumstances,
such facts could be the basis for finding
a particular social group, given the factand society specific nature of this
determination.’’ 85 FR at 36279; see
Grace II, 965 F.3d at 906 (‘‘[T]he record
in this case does not support the asylum
seekers’ argument that [the
Departments] have erected a rule against
asylum claims involving allegations of
domestic and/or gang violence.’’).
4.1.5. Interpersonal Disputes of Which
Governmental Authorities Were
Unaware or Uninvolved
Comment: One organization noted
that the rule would limit particular
social groups based on both
‘‘interpersonal disputes of which
governmental authorities were unaware
or uninvolved’’ and ‘‘private criminal
acts of which governmental authorities
were unaware or uninvolved.’’ The
organization emphasized that it is
unlikely that a particular social group
framed in this way would be cognizable;
however, because the fact pattern is
included in the rule as a ‘‘limiting
concept,’’ the organization expressed
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concern that adjudicators would likely
deny asylum based on this language,
even though the rule specifies that it
applies ‘‘in the context of analyzing a
particular social group.’’
Another organization expressed
concern that governments could attempt
to remove U.S. or international
sanctions by demonstrating that
‘‘private actors’’ were carrying out
persecution against political dissidents
and religious minorities. The
organization noted that these
governments could use propaganda to
‘‘inflame local residents against a
particular group,’’ using the decimation
of the Tutsis population in Rwanda as
an example. According to the
organization, governments could claim
this was not a human rights violation
because ‘‘government soldiers
themselves took no part in the attack.’’
Another organization emphasized that
violence is sometimes outside the state’s
reach, noting that violent activity can
occur where weak governments use
allied armed groups to provide security.
Response: As discussed above with
respect to particular social groups
defined by general violence or high
crime rates, the Departments agree with
commenters that it would be difficult to
demonstrate that particular social
groups defined by interpersonal
disputes of which governmental
authorities were unaware or
uninvolved, without more, are
cognizable. However, immigration
judges and asylum officers undergo
rigorous training on how to adjudicate
asylum claims, including the
cognizability of particular social groups.
The Departments are confident that
adjudicators are aptly prepared to
adjudicate asylum claims without
confusing the particular social group
analysis with other facets of asylum
eligibility requiring a separate analysis.
The Departments fail to see how setting
forth a social group that the commenter
believes is unlikely to be presented is
grounds for the commenter’s objection
to the rule.
The Departments do not address
comments raising concerns about
international sanctions or holding
international governments accountable
for alleged human rights violations, as
the Departments’ implementing statutes
and regulations are unrelated to such
matters, which are more properly
handled by the Department of State.
Comments raising concerns about
non-governmental violence that occurs
‘‘outside the state’s reach’’ or in cases
where ‘‘weak governments use allied
armed groups to provide security’’ do
not alter the Departments’
determination that particular social
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groups predicated upon interpersonal
disputes of which governmental
authorities were unaware or
uninvolved, without more, are generally
not cognizable. The commenter’s
statement about non-governmental
violence that occurs ‘‘outside the state’s
reach’’ is not sufficiently specific for the
Departments to draw any conclusion
about its relevancy to such social
groups. Although the Departments must
be explicit that they are not endorsing
the cognizability of such groups, the
commenter’s proposed scenario
regarding weak governments using
allied armed groups clearly would not
involve governmental unawareness and
is unlikely to involve personal
disputes.46
4.1.6. Private Criminal Acts of Which
Governmental Authorities Were
Unaware or Uninvolved
Comment: One organization noted
generally that the rule would remove
protections for individuals fleeing
violence from non-state actors. Another
organization claimed that the rule’s
exclusion of acts ‘‘of which
governmental authorities are unaware or
uninvolved’’ disproportionately affects
the ability of children to seek asylum.
The organization noted that the ability
of many children to access state
protection in their home country is
dependent upon the adults in their
lives, emphasizing that not all children
have an adult to help them obtain
protection. The organization also noted
that some children who go directly to
government officials for protection may
be dismissed. One organization noted
generally that it has ‘‘long been
determined’’ that the government does
not actually need to be aware of the
threats and that there is no requirement
to report the persecution to the
government if doing so ‘‘would be futile
or place the applicant at greater risk of
harm,’’ citing Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1062–72 (9th
Cir. 2017) (en banc) and Lopez v. U.S.
Att’y Gen., 504 F.3d 1341, 1345 (11th
Cir. 2007). Another organization
claimed that the rule disregards the
‘‘well-documented fact’’ that oppressive
governments utilize irregular forces for
the purpose of denying their actions.
The organization emphasized that
chronic violence arises when a
government is unwilling or unable to
protect the life and liberty of its citizens,
claiming that this government inaction
46 Regarding the commenters’ specific example,
the Departments note that claims from Tutsis in
Rwanda may also be framed in terms of race or
nationality which are not defined in the rule and
are separate from claims based on a particular social
group.
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puts people at risk of death. The
organization concluded by alleging that
the rule would send these individuals
back ‘‘into mortal danger.’’
Another organization claimed this
portion of the rule would violate the
APA in at least six different ways. First,
the organization alleged that the rule is
contrary to law, as the INA does not
state or imply that interpersonal or
‘‘private’’ acts cannot give rise to
asylum. Instead, the statute makes clear
that such acts can do so if they ‘‘rise to
the level of persecution, are taken on
account of a protected ground, and are
inflicted by actors the government is
unable or unwilling to control.’’ Second,
the organization claimed that it is
‘‘manifestly unreasonable’’ to use the
particular social group analysis to
‘‘place entire groups of persecutors
outside the asylum laws,’’ noting that
the particular social group analysis is
dependent on the nature of the group to
which the survivor belongs rather than
the identity of the persecutor. Third, the
organization alleged that a general
prohibition of asylum in all situations
where the government is ‘‘uninvolved’’
in the persecution is ‘‘arbitrary and
contrary to law,’’ claiming that the
substitution of ‘‘uninvolved’’ for
‘‘unable or unwilling’’ would render
large categories of previously
meritorious claims ineligible. The
organization also emphasized that the
rule would require survivors of
persecution by non-state actors to report
persecution to authorities ‘‘even where
laws against gender-based violence are
limited or non-existent.’’ The
organization noted that current asylum
law allows applicants to submit
evidence as to why reporting this type
of violence was impossible or
dangerous, claiming there is no
legitimate justification for the
prohibition of such evidence.
Fourth, the organization claimed that
the NPRM’s use of the word ‘‘private’’
implicitly raises the ‘‘unable or
unwilling’’ standard on some claims.
Fifth, the organization contended that
the ‘‘interpersonal’’ category is ‘‘even
more sweeping’’ and therefore contrary
to the INA, claiming that the plain
meaning of the ‘‘interpersonal’’ violence
category would bar all asylum claims.
Sixth, the organization claimed the
‘‘interpersonal’’ and ‘‘private’’ categories
violate the INA to the extent that, in the
Departments’ view, they apply to
domestic or other gender-based
violence. The organization claimed this
is ‘‘at odds’’ with the evidence, which
clearly shows that this type of violence
is ‘‘not simply a private matter based on
personal animosity.’’ The organization
also claimed that the application of the
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‘‘interpersonal’’ and ‘‘private’’ categories
to domestic and other gender-based
violence would violate constitutional
equal protection principles because the
presumption created by these categories
would have a disproportionate effect on
women (as women are much more likely
to experience violence by an intimate
partner).
Similarly, another organization noted
that this portion of the rule is especially
damaging to gender and LGBTQ+
related claims because ‘‘many are rooted
in intimate partner or family violence
that government actors choose to ignore
as private or family matters.’’ The
organization emphasized the BIA’s
decision in Matter of A–R–C–G–, 26 I&N
Dec. 338 (BIA 2014), holding that a
Guatemalan woman should be granted
asylum on the basis of abuse by her
former spouse, noting that this
precedent has allowed many female
asylum seekers from Central America to
win cases. One organization stated that
‘‘the very indifference’’ of governmental
authorities to the plight of survivors of
gender-based violence proves that
persecution exists, emphasizing there is
‘‘no good reason’’ for denying the claims
of survivors who can show their
government’s failure to protect them.
Another organization claimed the rule
‘‘condemns women to endure various
forms of domestic- and gender-based
violence, stripping them of the
humanitarian protection of the United
States.’’ The organization contended
that this ‘‘upends’’ the longstanding
recognition and protection of particular
social groups, across circuits, on the
following grounds: Femicide, Perdomo
v. Holder, 611 F.3d 662, 662 (9th Cir.
2010); honor killings, Sarhan v. Holder,
658 F.3d 649, 649 (7th Cir. 2011); female
genital mutilation, Mohammed v.
Gonzales, 400 F.3d 785, 785 (9th Cir.
2005); arranged or inescapable
marriages, Acosta Cervantes v. Barr, 795
F. App’x 995, 995 (9th Cir. 2020); and
‘‘other forms of domestic violence,’’
Mun˜oz-Ventura v. Barr, 799 F. App’x
977, 977 (9th Cir. 2020). One
organization contended that, by
dismissing violence against women or
LGBTQ+ individuals as an
‘‘interpersonal dispute,’’ the rule fails to
recognize that gender-based violence is
a ‘‘social means to subordinate rather
than an individual problem’’ and
requires comprehensive responses.
Response: The Departments disagree
that the rule is contrary to law. At the
outset, the Departments acknowledge
that the INA does not specify whether
interpersonal or ‘‘private’’ acts can give
rise to an asylum claim. While the
actions of private actors are also
discussed elsewhere in this
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rulemaking,47 the Departments will now
address concerns as they were raised
specifically in the context of
establishing a particular social group.
As the commenters contend, acts can
give rise to asylum claims only if they
are taken on account of a protected
ground, such as ‘‘particular social
group.’’ And, as discussed above, the
term ‘‘particular social group’’ is
ambiguous. As the Departments have set
forth a reasonable determination that
the term would generally not include,
without more, social groups predicated
upon private criminal acts of which
governmental authorities were unaware
or uninvolved, such private acts would
generally not be sufficient grounds for
asylum. See Matter of A–B–, 27 I&N Dec.
at 335 (‘‘groups defined by their
vulnerability to private criminal activity
likely lack the particularity’’ required
for cognizability).
The commenter’s allegations that the
rule violates the APA are predicated on
presumptions that the rule categorically
excludes certain types of social group
claims. As stated above, ‘‘the regulation
does not foreclose that, in rare
circumstances, such facts could be the
basis for finding a particular social
group, given the fact- and society
specific nature of this determination.’’
85 FR at 36279; see Grace II, 965 F.3d
at 906 (‘‘[T]he record in this case does
not support the asylum seekers’
argument that [the Departments] have
erected a rule against asylum claims
involving allegations of domestic and/or
gang violence.’’). The Departments
believe that the listed social groups
generally fail to meet the requirements
for cognizability, not because, as the
commenter alleged, of the identity of the
persecutor, but rather because such
groups are generally defined by the
group members’ vulnerability to private
criminal activity. See Matter of A–B–, 27
I&N Dec. at 335.
The Departments note that social
groups predicated on domestic or other
gender-based violence, insofar as the
47 The Departments note that longstanding law
has precluded private acts of violence as a basis for
asylum or similar protection for many years. See,
e.g., Matter of Pierre, 15 I&N Dec. 461, 462–63 (BIA
1975) (strictly personal dispute between a husband
and wife does not state a claim on account of race,
religion, political opinion or membership in a
particular social group). Further, circuit courts have
also held that private acts of violence are not a
cognizable basis for asylum, though their decisions
are sometimes rooted in other bases. See, e.g., Prado
v. U.S. Att’y Gen., 315 F. App’x 184, 188 (11th Cir.
2008) (‘‘Ordinary criminal activity and acts of
private violence are generally not ‘persecution’
within the meaning of 8 U.S.C. 1101(a)(42)(A).’’).
The Departments’ consideration of private violence
under the definition of particular social group in no
way precludes its consideration in connection with
the other requirements necessary for asylum,
including nexus and persecution.
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group is defined by private criminal acts
of which governmental authorities were
unaware or uninvolved, will generally
not be cognizable, as they, like all social
groups defined by such acts, likely lack
the requisite particularity due to the
‘‘broad swaths of society [that] may be
susceptible to victimization’’ or social
distinction to be cognizable. Matter of
A–B–, 27 I&N Dec. at 335–36. Similarly,
the Departments disagree with
commenter’s assertions that the rule
would implicitly raise the ‘‘unwilling or
unable’’ standard, as the Departments
believe that social groups defined by
private criminal acts of which
governmental authorities were unaware
or uninvolved are not cognizable under
the particular social group analysis of
immutability, particularity, and social
distinction, irrespective of the
government’s inability or unwillingness
to help, which is an independent factor
in considering asylum eligibility.
With respect to commenters’ concerns
about this rule’s potential effect on
LGBTQ and gender-based-violence
related claims, the Departments note
again that they have codified a longstanding test for determining
cognizability of particular social groups
and have set forth a list of common fact
patterns involving particular-socialgroup claims that generally will not
meet those well-established
requirements. The Departments did not
first determine a set of groups that
should or should not be cognizable and
craft a rule around that determination.
To the extent that commenters assert
that circuit case law conflicts with the
Departments’ rule, such conflicts would
warrant re-evaluation in appropriate
cases by the circuits under wellestablished principles. See Brand X, 545
U.S. at 982.
4.1.7. Past or Present Terrorist Activity
or Association
Comment: At least one commenter
raised concerns with the ‘‘past or
present terrorist activity or association’’
base for not favorably adjudicating a
particular social group. The commenter
asserted that the terms ‘‘terrorist
activity’’ and ‘‘terrorist association’’
were overbroad and, as a result, would
result in unnecessary denials of asylum
claims. Moreover, the commenter stated
that the Departments did not provide
‘‘empirical research’’ to support the
provision’s inclusion, but rather relied
on the ‘‘unproven’’ statement that
allowing particular social groups
defined by terrorist activity or
association would reward membership
in organizations that cause harm to
society and create a perverse incentive
to engage in reprehensible or illicit
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behavior as a means of avoiding
removal.
Response: The Departments disagree
that the terms ‘‘terrorist activity’’ or
‘‘terrorist association’’ are overbroad.
The Departments are using the ‘‘terrorist
activity’’ language that Congress clearly
defined in the INA. See INA
212(a)(3)(B)(iii), 8 U.S.C.
1182(a)(3)(B)(iii). To the extent the
commenter alleges that the statutory
definition itself is overbroad, such
arguments are outside the scope of this
rule. Moreover, the Departments do not
believe the phrase ‘‘terrorist
association’’ is overly broad. The
Departments intend for this provision to
apply to those who voluntarily
associate, or have previously voluntarily
associated, with a terrorist organization.
The Departments believe the ordinary
meaning of the term provides sufficient
definition for adjudicators to apply. See,
e.g., ‘‘Associate’’ Definition, MerriamWebster, https://www.merriamwebster.com/dictionary/associate
(defined as ‘‘join[ing] as a partner,
friend, or companion’’ with an example
of ‘‘They were closely associated with
each other during the war’’).
Although the Departments do not
maintain data on the number of prior
asylum grants based on a terrorismrelated particular social group, the
Departments believe it is reasonable
that, as a general matter, persons
applying for asylum in the United States
cannot claim asylum based on their
participation in, or association with,
terrorism. For example, Congress
included certain terrorism-related
activities as a categorical bar from
asylum eligibility. See INA
208(b)(2)(A)(v), 8 U.S.C.
1158(b)(2)(A)(v).48 Similarly, although
this is not a categorical bar to terrorismbased particular social groups, generally
disfavoring such groups is consistent
with this Congressional intent.
Finally, the Departments note that
association with past or current terrorist
activity is at least as ‘‘anti-social’’ as
association with criminal gang activity,
if not more so, and the latter has been
rejected as a basis for a particular social
group by multiple courts. Cf. Arteaga,
511 F.3d at 945–46 (‘‘We cannot
conclude that Congress, in offering
refugee protection for individuals facing
potential persecution through social
group status, intended to include
violent street gangs who assault people
and who traffic in drugs and commit
48 The Departments note that certain activities or
associations that trigger terrorism-related
inadmissibility grounds may potentially be the
subject of discretionary group-based, situational, or
individual exemptions. In such cases, they would
not constitute bars to asylum eligibility.
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theft.’’); Cantarero, 734 F.3d at 85–86
(‘‘The BIA reasonably concluded that, in
light of the manifest humanitarian
purpose of the INA, Congress did not
mean to grant asylum to those whose
association with a criminal syndicate
has caused them to run into
danger. . . . Such recognition would
reward membership in an organization
that undoubtedly wreaks social harm in
the streets of our country. It would,
moreover, offer an incentive for aliens to
join gangs here as a path to legal
status. . . . Accordingly, the BIA’s
interpretation merits our deference
under Chevron.’’); Elien, 364 F.3d at 397
(‘‘Such recognition unquestionably
would create a perverse incentive for
[aliens] coming to or residing in the
United States to commit crimes, thereby
immunizing themselves from
deportation. . . . Moreover, the BIA has
never extended the term ‘social group’
to encompass persons who voluntarily
engaged in illicit activities.’’).
Consequently, the Departments decline
to follow a suggestion that terrorist
association should generally be
considered a cognizable particular
social group.
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4.1.8. Past or Present Persecutory
Activity or Association
Comment: One organization claimed
that the NPRM’s proposed bar on ‘‘past
persecutory activity,’’ 85 FR at 36279, is
contrary to the APA in the same manner
as the proposed bar on past criminal
conduct. The organization alleged that
listing a scenario involving past
persecutory activity as generally noncognizable would create even greater
uncertainty, however, because ‘‘past
persecutory activity’’ is not defined in
the NPRM.
Response: Although the commenter’s
broad and unspecified allegations make
a response difficult, the Departments do
not believe this rulemaking is in
violation of the APA for reasons given
in both the NPRM and this final rule,
and they reiterate that this rulemaking
does not impose any categorical bar as
suggested by the commenter. The
Departments have provided descriptions
and reasons for all the provisions and
have established a reasonable basis for
the rule. With respect to the
commenter’s concerns about what
conduct falls under the term ‘‘past
persecutory activity,’’ the Departments
note that this rulemaking, including the
NPRM, sets forth clear guidelines about
what conduct constitutes persecutory
activity, 85 FR at 36280–81, and thus,
that this should serve as a guide for
conduct involving past persecutory
activity.
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4.1.9. Status as an Alien Returning From
the United States
Comment: One organization noted
that the rule would generally not find a
particular social group to be cognizable
if based on ‘‘status as an alien returning
from the United States.’’ The
organization expressed concern about
this, noting that there have been
circumstances where ‘‘Westernized Iraqi
citizens have faced persecution and
potential torture based on their
perceived ties to the United States.’’ The
organization emphasized that each
proposed particular social group should
be evaluated on a case-by-case basis
instead of being subjected to general
rules that would result in ‘‘blanket
denials.’’
Another organization claimed that
‘‘status as an alien returning from the
United States’’ is on its face an
‘‘immutable, socially distinct, and
particular’’ characteristic. The
organization emphasized that past
association as a former resident of the
United States is similar to one’s
membership in a family or one’s specific
history because it is a particular
characteristic that cannot be changed.
The organization alleged that this
portion of the rule could result in the
denial of asylum to individuals
persecuted due to their real or imputed
association with the United States by ‘‘a
regime that is hostile to this country, or
its culture and values.’’
One organization disagreed with the
claim that any group based on
individuals returning from the United
States will be ‘‘too broad’’ to qualify as
a particular social group, 85 FR at
36279, claiming this is ‘‘factually and
legally erroneous.’’ The organization
alleged that, as a factual matter, the
number of individuals returning to some
countries from the United States is
small. As a legal matter, the
organization claimed that whether a
group is potentially large would not, by
itself, mandate the conclusion that the
group is not particular.
Response: The Departments reiterate
once again that this rule does not
foreclose the possibility of pursuing and
prevailing upon a particular social
group claim defined by the applicant’s
status as an alien returning from the
United States. ‘‘[T]he regulation does
not foreclose that, in rare circumstances,
such facts could be the basis for finding
a particular social group, given the factand society specific nature of this
determination.’’ 85 FR at 36279; see
Grace II, 965 F.3d at 906 (‘‘[T]he record
in this case does not support the asylum
seekers’ argument that [the
Departments] have erected a rule against
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asylum claims involving allegations of
domestic and/or gang violence.’’). If
applicants believe that their proposed
group as an alien returning from the
United States meets one of the
exceptions to the general rule based on,
as commenter’s proposed, the group
meeting the particularity requirement,
the applicants may propose such a
group.
The Department disagrees with
comments that individuals returning
from the United States can, generally,
demonstrate that their group is
sufficiently particular or socially
distinct. See, e.g., Reyes v. Lynch, 842
F.3d 1125, 1139 (9th Cir. 2016)
(upholding BIA’s determination that a
proposed social group of deportees ‘‘was
too amorphous, overbroad and diffuse
because it included men, women, and
children of all ages, regardless of the
length of time they were in the United
States, the reasons for their removal, or
the recency of their removal’’); Lizama,
629 F.3d at 446 (rejecting proposed
group of ‘‘young, Americanized, well-off
Salvadoran male deportees with
criminal histories who oppose gangs’’ as
‘‘clearly fail[ing] to meet the required
criteria’’ (internal quotations omitted)).
However, to the extent that commenters
believe there may be exceptions to this
general rule, ‘‘the rule does not foreclose
that, in rare circumstances, such facts
could be the basis for finding a
particular social group, given the factand society specific nature of this
determination.’’ 85 FR at 36279; see
Grace II, 965 F.3d at 905.
4.2. Political Opinion
Comment: Commenters argued that
the proposed definition of political
opinion is inconsistent with legislative
intent and international law, which,
commenters asserted, require the term
to be construed broadly. Specifically,
commenters asserted that Congress, in
passing the Refugee Act of 1980, aimed
to align the United States definition of
‘‘refugee’’ with the United States’
obligations under the 1967 Protocol
relating to the Status of Refugees.
Commenters provided excerpts from the
House Report for the Refugee Act of
1980 and UNHCR guidance stating the
term should be construed broadly.
Commenters also argued that Congress
is the branch that holds the plenary
power and that the proposed edits to 8
CFR 208.1(d) are an attempt ‘‘to do an
end run around the legislative intent’’ of
section 101(a)(42) of the Act, 8 U.S.C.
1101(a)(42).
Commenters expressed concern that
the proposed definition of political
opinion is inconsistent with Federal
court and BIA precedent. Commenters
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cited Cardoza-Fonseca, 480 U.S. 421, to
argue that the proposed definition of
‘‘political opinion’’ is too narrow. One
commenter also cited cases from the
United States Courts of Appeals for the
Second, Third, and Ninth Circuits,
which the commenter argued evidence
that the term political opinion should be
construed broadly. Another commenter
noted that Federal courts have
recognized political opinions based on
feminist beliefs, labor organizing,
environmental beliefs, support of
student organizations, and gangs. With
respect to BIA precedent, one
commenter asserted that the NPRM
incorrectly interpreted Matter of S–P–,
21 I&N Dec. 486 (BIA 1996), and that the
case actually instructs that the term
political opinion should be construed
broadly. The commenter similarly
asserted that the BIA decisions in Matter
of D–V–, 21 I&N Dec. 77 (BIA 1993), and
Matter of N–M–, 21 I&N Dec. 526 (BIA
2011), support a broad reading of
political opinion. One commenter cited
the third edition of the Webster’s New
World College Dictionary (1997) to
argue that the definition of the word
‘‘political’’ is unambiguously
understood to include more than just
opposition to a particular regime.
Accordingly, the commenter argued, the
proposed definition of political opinion
contradicts the plain meaning of the
INA.
Commenters expressed concern that
political opinions not directly related to
regime change would be considered
invalid under the proposed definition.
As an example, one commenter asserted
that Wang Quanzhang (who the
commenter stated is a human rights
defender in China) and Ivan Safronov (a
Russian journalist who, the commenter
stated, was charged with treason for
contributing to a prominent business
newspaper) would not have valid
political opinions under the proposed
definition. Commenters asserted that
individuals could hold valid political
opinions unrelated to regime change
such as LGBTQ rights advocacy, voter
registration advocacy, and opinions on
the publication of data about COVID–19
in countries that seek to hide the
pandemic’s impact. One commenter
noted that in some nations the
geopolitical landscape renders a
distinction between opposition to a
specific regime indistinguishable from
political opinions about cultural issues.
Commenters similarly expressed
concern that gang-based claims would
be rejected under the proposed
definition. Commenters asserted that
gangs can have substantial political
power and that some nations are unable
to control gang violence and influence.
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One commenter stated that the United
States Department of State recognized
this reality in its 2019 Country Reports
on Human Rights Practices. Other
commenters cited provisions of the
UNHCR Guidelines on International
Protection noting that gang-based and
gender-based claims can be valid.
Commenters also expressed concern
with the ‘‘absent expressive behavior’’
language in proposed 8 CFR 208.1(d)
and 8 CFR 1208.1(d), asserting that
section 208(b) of the Act, 8 U.S.C.
1158(b), does not require protected
grounds to be expressed in a particular
way and that ‘‘political opinion,’’ not
‘‘political activity’’ is the protected
ground. Commenters asserted that the
proposed definition contradicts UNHCR
Guidance on expressing opinions.
Commenters argued that ‘‘absent
expressive behavior’’ is ‘‘antithetical to
the concept of an imputed political
opinion against a non-state
organization’’ and that it is inconsistent
with Federal case law that has
recognized imputed political opinions
against gangs that fall outside of the
proposed definition of expressive
behavior.
One commenter expressed concern
that the proposed definition of political
opinion ‘‘frustrates the reliance
interests’’ of ‘‘thousands’’ of individuals
whose asylum claims are based on
political opinions under the current
understanding of the concept. The
commenter expressed concern that
individuals with pending applications
would ‘‘have a much lower likelihood of
obtaining relief under the proposed
rule.’’
Response: In regards to commenters’
concerns that the final rule contravenes
various Federal circuit court decisions,
the Departments note that the disparity
in interpretations of the term political
opinion is a partial motive for the
amendment. As discussed in the NPRM,
this rule will provide clarity in an area
of conflicting case law that has made
uniform application challenging for
adjudicators.
One commenter suggested that the
Departments were ‘‘seek[ing] to erase all
precedent that is favorable to asylum
seekers.’’ The Departments deny this
purported motive. As mentioned in the
NPRM, the purpose behind the
amendments surrounding political
opinion is to provide clarity to
adjudicators, avoid further strain on the
INA’s definition of ‘‘refugee,’’ and to
acknowledge that the statutory
requirements and general understanding
of political opinion is intended to
advance or further a discrete cause
related to political control of a state.
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A commenter expressed concern that
the Departments failed to recognize that
many asylum seekers flee their
homelands because their governments
are unable or unwilling to control nonstate actors, including international
criminal organizations. The
Departments do not disagree that this
may be the motivation for some aliens
to flee their homelands. However, that
fact alone does not create a basis for
protection under the immigration laws.
Asylum and statutory withholding of
removal are narrowly tailored—allowing
for the discretionary grant of protection
from removal in the case of asylum and
granting protection from removal in the
case of withholding—to aliens who
demonstrate that they meet specific
eligibility criteria. The asylum laws
were not created to address any
misfortune that may befall an alien.
Rather, asylum generally is available to
individuals who are able to establish,
among other things, that the harm they
experienced or fear was (or there is a
well-founded basis to believe would be)
inflicted on account of a protected
ground. The rule will improve the
system by creating a clearer definition of
political opinion, which, in turn, will
assist in the expeditious processing of
meritorious claims.
Several commenters listed various
opinions which, commenters’ opined,
would no longer fit within the political
opinion category. The Departments
acknowledge that the rule codifies a
specific definition for articulating
political opinion claims, though it also
incorporates existing case law
principles.49 As explained in the NPRM,
the Departments seek to provide clear
standards for adjudicators to determine
political opinion claims. For example, if
political opinion were expanded to
include opposition to international
criminal organizations, it would
‘‘interfere with the other branches’
primacy in foreign relations,’’ and
‘‘strain the language of’’ INA
101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A).
See Saladarriaga v. Gonzales, 402 F.3d
461, 467 (4th Cir. 2005) (holding that an
individual’s cooperation with the DEA,
even if it stemmed from disapproval of
a drug cartel, did not constitute a
political opinion). Although the
Departments agree that international
49 As discussed herein, the rule itself applies
prospectively to applications filed on or after its
effective date; accordingly, it will have no effect on
pending applications, contrary to commenters’
concerns. However, the rule also codifies many
principles that are already applicable through
binding case law. Thus, although the rule itself may
not apply to pending applications, applicable case
law that is reflected in the rule may nevertheless
still apply to pending applications.
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criminal organizations threaten both
their fellow countrymen and the
international community, the
appropriate redress for such concerns is
not to broadly grant asylum on the basis
of political opinion.
A commenter stated, without more,
that the rule does not meet the
materiality standard as outlined in the
UNHCR guidance. The Departments
decline to respond to commenters’
general assertions that the rule violates
U.S. international treaty obligations.
The Departments do not share a
commenter’s concern that the NPRM
defines ‘‘political opinion’’ narrowly to
the extent that it runs afoul of
congressional intent to define ‘‘refugee’’
broadly. The NPRM notes that since the
enactment of the statute, the definition
of ‘‘refugee’’ has been strained in
various contexts. See Saladarriaga, 402
F.3d at 467. Thus, one aspect of the
motive behind the NPRM is to reduce
the strain on the statute and return the
statute to its original meaning.
Additionally, the commenter claimed
that the expansive definition was meant
to mirror the 1967 Protocol relating to
the Status of Refugees, the 1951
Convention relating to the Status of
Refugees, and UNHCR guidelines,
which the commenter claims are now
violated by the new definition. The
Departments reject this conclusion.
While UNHCR guidelines are
informative, they are not prescriptive
and thus not binding. See AguirreAguirre, 526 U.S. at 427 (‘‘The U.N.
Handbook may be a useful interpretative
aid, but it is not binding on the Attorney
General, the BIA, or United States
courts.’’); Cardoza-Fonseca, 480 U.S. at
439, n.22 (‘‘Indeed, the Handbook itself
disclaims such force[.]’’).
In regards to the meaning of
‘‘political,’’ the Departments note that,
according to the Merriam-Webster
Dictionary, ‘‘political’’ does have
numerous definitions. See ‘‘Political’’
Definition, Merriam-Webster, https://
www.merriam-webster.com/dictionary/
political. However, all but one of those
definitions relates specifically, and
often solely, to governments. Moreover,
the first definition refers only to the
government. Similarly, the Departments
reject commenters’ assertions that
‘‘expressive behavior’’ is solely
‘‘political action’’ and therefore distinct
from political opinion. First, the
Departments note that the definition of
political opinion has been highly
debated. See, e.g., Catherine Dauvergne,
Toward a New Framework for
Understanding Political Opinion, 37
Mich. J. Int’l L. 243, 246–47 (2016)
(‘‘The tension between [differing
interpretations of political opinion]
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raises the overarching question of
whether political opinion should be
defined at all. It is evident that existing
definitions have not provided sufficient
guidance, and that there is no definition
in the adjacent area of human rights law
that can be logically imported . . . . [A]
broadly agreed-upon definition of
political opinion would advance the
jurisprudence by providing a consistent
standard.’’). The NPRM aims to clarify
this definition for adjudicators. The
Departments’ use of ‘‘expressive
behavior’’ is directly related to the
NPRM’s definition of political opinion
as ‘‘intended to advance or further a
discrete cause related to political
control of a state.’’ 85 FR at 36280.
Moreover, the Departments are unaware
of any claim rooted in political opinion
that did not contain some type of
expressive behavior, and it is not clear
how an opinion never uttered or
conveyed could be recognized as a
political opinion.
Another commenter expressed
concern that a particular state’s
geopolitical landscape that would leave
political opinions indistinguishable
from cultural issues. First, BIA case law
clearly holds that political opinion
involves a cause against a state or
political entity rather than against a
culture. Matter of S–P–, 21 I&N Dec. at
494. However, the Departments also
acknowledge that there may be rare
circumstances that will amount to
exceptions to the general guiding
principles laid out in the NPRM. For
this reason, the rule uses ‘‘in general’’ to
guide adjudicators in their
determinations.
4.3. Persecution
Comment: Commenters expressed a
wide range of concerns with the rule’s
definitional standard for ‘‘persecution.’’
See 85 FR at 36280–81; 8 CFR 208.1(e),
1208.1(e). Overall, commenters asserted
that the Departments’ justification was
generally flawed and inappropriately
relied on case law to support its
position.
Commenters asserted that the
proposed definition of persecution is
inconsistent with the statutory meaning
of the word. For example, commenters
argued that the new definition
impermissibly alters the definition of
refugee so that it does not conform with
the United Nations Convention and
Protocol Relating to the Status of
Refugees. Commenters said this violates
the ‘‘fixed-meaning canon’’ of
construction, which ‘‘holds that words
must be given the meaning they had
when the text was adopted.’’
Commenters considered the meaning of
‘‘refugee,’’ which incorporates
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persecution, in the Refugee Act and
argued that legislators intended for
persecution to have a broad meaning in
order to align the INA with U.S.
international obligations.
Commenters expressed concern that
the proposed definition of persecution
would exclude claims based on threats
with no accompanying effort to carry
out the threat or non-exigent threats.
Commenters cited and discussed
numerous Federal cases, including,
Cardoza-Fonseca, 480 U.S. 421, and
argued that Federal case precedent
suggests that threats alone can be the
basis of asylum claims. One commenter
provided the example of death threats
and noted that the United States Court
of Appeals for the Sixth Circuit
reasoned that an applicant need not
wait for an actual attempt on his or her
life before having a valid claim for
asylum. Juan Antonio, 959 F.3d at 794.
Another commenter similarly argued
that a teenage girl who rebuffed
inappropriate advances from a corrupt
official would not be able to prevail on
a persecution claim unless the official
assaulted her. Commenters asserted that
through the focus on severe and exigent
threats, the proposed definition and the
accompanying non-exhaustive list of
factors would unlawfully lead to denials
of asylum claims where applicants
suffer significant harms that fall short of
an immediate threat to life or property.
At least one commenter asserted that
this requirement of action would
inappropriately eliminate claims based
on a well-founded fear of future
persecution.
Commenters expressed concern that
the proposed definition of persecution
wrongfully fails to account for the
possibility of cumulative harms rising to
the level of persecution and argued that
Federal case law instructs that
adjudicators must consider cumulative
harm. See, e.g., Herrera-Reyes v. Att’y
Gen. of U.S., 952 F.3d 101, 109 (3d Cir.
2020); Tairou v. Whitaker, 909 F.3d 702,
707 (4th Cir. 2018); Matter of O–Z– & I–
Z–, 22 I&N Dec. 23 (BIA 1998).
Commenters expressed concern that the
rule would prevent applicants who have
suffered multiple distinct harms from
prevailing on an asylum claim if each
instance is deemed to be not severe or
to be minor. To illustrate these
concerns, one commenter discussed
persecution suffered by the Rohingya
and another detailed the case of one of
his clients whose application, the
commenter argued, would be granted
under the current regulations and case
law but denied under the persecution
definition established by the rule.
One commenter argued that because
factors suggesting a lack of persecution
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are overrepresented, adjudicators would
not be engaging in case-by-case analysis
and that the scales are inappropriately
tipped towards finding a lack of
persecution.
Commenters expressed concern that
the proposed definition inappropriately
fails to consider how children and
adults experience harm differently.
Specifically, commenters argued that
children may experience harm because
of affiliation with family members and
caregivers and that harm suffered by
children may rise to the level of
persecution even though the same harm
would not rise to such a level for adults.
Other commenters noted that it is not
reasonable to expect children to seek
protection from official sources.
Commenters expressed concern that
the proposed rule would require asylum
seekers to demonstrate that persecutory
laws would likely be enforced against
them. As an example, commenters
noted that asylum seekers coming from
countries where same sex relationships
carry the death penalty would not be
able to secure asylum unless they could
also establish that the law would likely
be applied to them. In many cases, one
commenter argued, such a penalty is not
enforced frequently because sexual
minorities are not likely to break the law
given the risk of death. The commenter
noted that the United States Court of
Appeals for the Ninth Circuit has
suggested that applicants with these
types of claims should prevail. See
Karouni v. Gonzales, 399 F.3d 1163,
1173 (9th Cir. 2005). Commenters also
noted that even if laws such as the
above are not enforced, they are still
persecutory in nature because of the fear
and vulnerability that they create in
those that could be subjected to the
laws.
Response: As stated in the proposed
rule, the Departments added new
paragraphs in 8 CFR 208.1 and 1208.1
‘‘to define persecution and better clarify
what does and does not constitute
persecution.’’ 85 FR at 36280. These
changes clarify that persecution is an
extreme concept that requires severe
harm and specify different examples of
conduct that, consistent with case law,
do not rise to the level of persecution.
See 85 FR at 36280–81. They are not
unduly restrictive, and it is wellestablished that not every harm that
befalls an alien, even if it is unfair,
offensive, unjust, or even unlawful,
constitutes persecution. See Gjetani v.
Barr, 968 F.3d 393, 397 (5th Cir. 2020)
(‘‘Persecution is often described in the
negative: It is not harassment,
intimidation, threats, or even assault.
Persecution is a specific term that does
not encompass all treatment that our
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society regards as unfair, unjust, or even
unlawful or unconstitutional.’’
(quotation omitted)); see also Ahmed v.
Ashcroft, 341 F.3d 214, 217 (3d Cir.
2003) (discrimination against stateless
Palestinians in Saudi Arabia did not
amount to persecution).
Commenters are correct that the
definition of ‘‘refugee’’ in the Act, first
codified by the Refugee Act,
incorporates ‘‘persecution’’ and that
Congress enacted the Refugee Act in
order to conform the Act with the
United States’ obligations under the
1967 Protocol relating to the Status of
Refugees. See Matter of Acosta, 19 I&N
Dec. at 219. However, commenters are
incorrect that Congress intended for the
Refugee Act to import any specific
international or extrinsic definition of
‘‘persecution.’’ Instead, as explained by
the BIA, Congress used the term
persecution prior to the Refugee Act,
and, accordingly, it is presumed that
Congress intended for that pre-Refugee
Act construction to continue to apply.
Id. at 222.50 That prior construction of
the term included the notions that
‘‘harm or suffering had to be inflicted
upon an individual in order to punish
him for possessing a belief or
characteristic a persecutor sought to
overcome . . . and either by the
government of a country or by persons
or an organization that the government
was unable or unwilling to control.’’ Id.
The standards for persecution contained
in the proposed rule and this final rule
align with this understanding of
‘‘persecution,’’ and the rule is not
incompatible with the Act or the United
States’ international treaty obligations.
Some of the standards implemented
by this rule involve matters that the
Federal courts have adjudicated
inconsistently. For example, the rule
establishes that repeated threats would
not constitute persecution absent
‘‘actual effort to carry out the threats.’’
8 CFR 208.1(e), 1208.1(e). Courts have
held that threats, even with
accompanying action, do not necessarily
rise to the level of persecution. See, e.g.,
Gjetani, 968 F.3d at 398 (collecting
cases and explaining that ‘‘[E]ven those
subject to brutal physical attack are not
necessarily victims of ‘persecution.’
Courts have condemned all manner of
egregious and even violent behavior
while concluding they do not amount to
persecution.’’); see also QuijanoRodriguez v. Gonzales, 139 F. App’x
50 Moreover, as also noted by the BIA, the
Protocol itself leaves the determination of who
should be considered a refugee, which inherently
includes a determination of who is at risk of
persecution, to each state party itself. Matter of
Acosta, 19 I&N Dec. at 220.
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80327
910, 910–11 (9th Cir. 2005) (collecting
cases).
The Departments note that Federal
courts have also held that threats
without attempts to carry out the threat
may at times constitute persecution.
See, e.g., Duran-Rodriguez v. Barr, 918
F.3d 1025, 1028 (9th Cir. 2019)
(explaining that ‘‘death threats alone
can constitute persecution’’ but ‘‘they
constitute ‘persecution in only a small
category of cases, and only when the
threats are so menacing as to cause
significant actual suffering or harm’ ’’
(citation omitted)). Threats ‘‘combined
with confrontation or other
mistreatment’’ are likely to be
persecution; however, ‘‘cases with
threats alone, particularly anonymous
or vague ones, rarely constitute
persecution.’’ Id. (internal citation
omitted) (emphasis added); see also Lim
v. INS, 224 F.3d 929, 936 (9th Cir. 2000)
(‘‘In certain extreme cases, we have held
that repeated and especially menacing
death threats can constitute a primary
part of a past persecution claim,
particularly where those threats are
combined with confrontation or other
mistreatment. . . . Threats standing
alone, however, constitute past
persecution in only a small category of
cases, and only when the threats are so
menacing as to cause significant actual
‘suffering or harm.’’). Even the case
cited by commenters, Juan Antonio, 959
F.3d at 794, noted that threats alone
amount to persecution only when they
are ‘‘of a most immediate and menacing
nature’’; moreover, the respondent in
that case experienced beatings and rape
in addition to threats, rendering that
case inapposite to the rule, id. at 793.
The Departments believe that the rule
reflects appropriate and reasonable lines
drawn from the relevant case law
regarding persecution, particularly due
to the difficulty associated with
assessing the credibility of an alleged
threat, especially in situations in which
the threat was made anonymously and
without witnesses or the existence of
other corroborating evidence. See Lim,
224 F.3d at 936 (‘‘Furthermore, claims
of threats are hard to disprove. A
finding of past persecution raises a
regulatory presumption of future
persecution and flips the burden of
proof . . . to show that conditions have
changed to such a degree that the
inference is invalid . . . . Flipping the
burden of proof every time an asylum
applicant claimed that he had been
threatened would unduly handcuff the
[government].’’). To the extent that the
standards implemented by this rule
conflict with case law interpreting what
sorts of conduct rise to the level of
persecution, the Departments invoke
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their authority to interpret the
ambiguities of what constitutes
persecution—an undefined term in the
Act—outside the bounds of such prior
judicial constructions. See Brand X, 545
U.S. at 982; see also Grace II, 965 F.3d
at 889 (noting that the term
‘‘persecution’’ is ‘‘undefined in the
INA’’); cf. Fernandez v. Keisler, 502 F.3d
337, 347–48 (4th Cir. 2007) (applying
Brand X to affirm the BIA’s rejection of
the Fourth Circuit’s prior interpretation
of section 101(a)(22) of the Act, 8 U.S.C.
1101(a)(22), where the court’s prior
interpretation did not rest on a
determination that the statute was
‘‘unambiguous’’). Moreover, in response
to the commenters’ concerns, the final
rule more clearly specifies the types of
threats included within the definition
such that menacing and immediate ones
may still come within the definition
consistent with the case law noted
above.
To the extent that aspects of
persecution adjudications are not
covered by the rule, the Departments
expect adjudicators to conduct all
determinations consistent with the law,
regulations, and precedent.
Accordingly, the rule does not conflict
with case law explaining that harms
must be considered cumulatively and in
the aggregate, see, e.g., Matter of Z–Z–
O–, 26 I&N Dec. 586, 589 (BIA 2015)
(holding that applicant’s experiences
did not amount to persecution ‘‘when
considered either individually or
cumulatively’’); Matter of O–Z–
& I–Z–, 22 I&N Dec. at 25–26
(considering incidents of harm ‘‘[i]n the
aggregate’’), because it does not in any
way direct adjudicators to blindly only
consider harm suffered individually. In
other words, adjudicators will still
consider harms suffered by applicants
in the aggregate.
Similarly, the rule does not end caseby-case adjudications of whether
conduct constitutes persecution. The
Departments disagree with commenters
that the Departments’ choice to frame
persecution in the context of conduct
that does not rise to the level of
persecution while leaving open further
adjudication of what conduct
constitutes persecution in any way ‘‘tips
the scales.’’ ‘‘Persecution is often
described in the negative . . . .’’
Gjetani, 968 F.3d at 397.
As noted by commenters, Federal
courts have held that an applicant’s age
is relevant for determining whether the
applicant suffered persecution. See, e.g.,
Liu v. Ashcroft, 380 F.3d 307, 314 (7th
Cir. 2004) (‘‘[A]ge can be a critical factor
in the adjudication of asylum claims
and may bear heavily on the question of
whether an applicant was persecuted or
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whether she holds a well-founded fear
of future persecution.’’). Commenters
are incorrect, however, that the rule’s
persecution standard conflicts with this
instruction. Instead, the rule provides a
general standard for persecution that is
built around the severity of the harm. 8
CFR 208.1(e), 1208.1(e). This focus on
severity does not foreclose arguments or
an adjudicator’s finding that harms
suffered by an applicant are severe in
their particular context given the
applicant’s age or particular
circumstances, even if such harms may
not generally be considered severe for
the average applicant.
Regarding commenters’ concerns with
the rule’s instruction that ‘‘[t]he
existence of laws or government policies
that are unenforced or infrequently
enforced do not, by themselves,
constitute persecution, unless there is
credible evidence that those laws or
policies have been or would be applied
to an applicant personally,’’ the
Departments note this standard is
consistent with well-established law
that ‘‘an asylum applicant can establish
a well-founded fear of persecution by
proving either a pattern or practice of
persecution of a social group, of which
the applicant has proven she is a
member, or by proving the applicant
will be singled out personally.’’ Ayele v.
Holder, 564 F.3d 862, 870 (7th Cir.
2009). Laws that are unenforced or
enforced infrequently cannot
demonstrate a pattern or practice of
persecution, 8 CFR 208.13(b)(2)(iii),
1208.13(b)(2)(iii), and without credible
evidence that such laws would be
applied to the applicant, the alien
cannot demonstrate that he or she
would be singled out individually for
persecution, id. The rule does not alter
these well-established precepts. Further,
this requirement that the mere existence
of a law, without more, is insufficient to
rise to the level of persecution is in
keeping with prior interpretations of
persecution. For example, the BIA has
explained that evidence of the
enactment of a new law is not evidence
of changed country conditions for the
purposes of a motion to reopen
‘‘without convincing evidence that the
prior version of the law was different, or
was differently enforced, in some
relevant and material way.’’ Matter of S–
Y–G–, 24 I&N Dec. 247, 257 (BIA 2007).
This definition does not foreclose an
applicant from citing to the existence of
such laws as a part of his or her
evidence to demonstrate past
persecution or risk of future
persecution. Nor does this requirement
require an applicant to live in secret in
order to avoid future harm. Further, the
Departments expect that in many cases
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there may be credible evidence of the
enforcement of such laws. For example,
in the Ninth Circuit case cited by
commenters, the government conceded
at oral argument that the Lebanese
government arrested individuals for
homosexual acts and enforced the law at
issue. Karouni, 399 F.3d at 1172.
Finally, the rule’s persecution
standard does not in any way foreclose
claims based solely on a well-founded
fear of future persecution. Instead, the
adjudicator will consider whether the
future harm feared by the applicant
would constitute persecution under the
rule’s standards. In other words, the
adjudicator would consider whether the
feared harm would be carried out by an
individual with the intent to target the
applicant’s belief or characteristic,
would be severe, and would be inflicted
by the government or by persons or
organizations that the government is
unable or unwilling to control.51
4.4. Nexus
Comment: Numerous commenters
expressed general disagreement
regarding the rule’s nexus provisions,
including referring to the list as an
‘‘anti-asylum wish list.’’ Commenters
claimed that it directed adjudicators to
deny most claims.
Some commenters alleged that the
Departments were attempting to
accelerate asylum hearings at the
expense of due process; the commenters
construed the rule as creating a
checklist that bypasses careful
consideration that due process requires.
Others opined that the rule prioritized
efficiency and expediency over fairness,
due process, and ‘‘basic humanity.’’
Commenters stated the rule allowed
‘‘blanket denials.’’
Another commenter opined that the
rule was arbitrary because the
Departments failed to consider the realworld implications of the proposal.
Commenters expressed concern that,
after the enactment of the rule, many
asylum seekers would not have
favorable adjudication of their claims,
51 Specifically regarding commenters’ concerns
that the rule’s standard that threats without
accompanying action do not constitute persecution
would undermine claims based on fear of future
persecution, the Departments believe that the
commenters are conflating past harms and
determinations of past persecution with fear of
future harm and determinations of a well-founded
fear of future persecution. Indeed, it is difficult to
understand how anyone could predict whether
future threats will occur and difficult to conceive
of a claim in which an alien alleges a fear of future
threats but not a fear of future physical, mental, or
economic harm. The real issue is the likelihood of
future harm based on past threats, and the rule does
not alter an alien’s ability to argue that past threats
are evidence of either past persecution or a
likelihood of future persecution.
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including those based on violence from
non-state actors. Others claimed the
rule’s nexus components were
‘‘completely incapable of supporting a
meritorious asylum claim.’’
Commenters expressed concern that
the rule precludes a mixed-motive
analysis, reasoning that if an actor had
any one, potential motive listed in the
rule, it would be fatal to the claim, and
that it violates the ‘‘one central reason’’
standard. INA 208(b)(1)(B)(i), 8 U.S.C.
1158(b)(1)(B)(i).
Some of the commenters’
disagreement surrounded Matter of
A–B–, 27 I&N Dec. 316. One commenter
opined that the rule is contrary to
Matter of A–B–’s requirement of case-bycase rigorous analysis, and another
commenter worried that the NPRM
codified Matter of A–B–, despite, as the
commenter characterized, its
unfavorable treatment in various
Federal courts.
Other commenters argued that the
nexus provisions conflated ‘‘categories
of people’’ with requirements of the
perpetrator’s mental state.
Another commenter expressed
concern that the rule included
‘‘substantive changes to the law
disguised in procedural attire.’’
Response: As an initial point, to the
extent commenters’ points misstate the
rule, address issues not raised by the
rule, are rooted in erroneous reasoning,
are contrary to facts or law, or reflect
unsubstantiated and exaggerated
melodramatic views of the rule, the
Departments decline to adopt those
points. The Departments do not wish to
enact some ‘‘anti-asylum wish list’’ in
this rule. In codifying the circumstances
that are generally insufficient to support
a nexus finding, the Departments are
simply specifying common
circumstances, consistent with case law,
in order to provide clarity and efficiency
for adjudicators. The Departments
proposed these amendments in order to
assist aliens with meritorious claims, as
well as the entire immigration system.
As with all regulations or policy
changes, the Departments considered
the effect this rule will have;
accordingly, the Departments reject
commenters’ allegations that such
implications were not considered.
The rule’s inclusion of these general
guidelines for nexus determinations will
not result in due process violations from
adjudicators failing to engage in an
individualized analysis. The rule
provides a nonexhaustive list of eight
circumstances that generally will not
warrant favorable adjudication, but the
rule does not prohibit a favorable
adjudication depending on the specific
facts and circumstances of the
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applicant’s particular claim. See 8 CFR
208.1(f), 1208.1(f) (‘‘For purposes of
adjudicating an application for asylum
under section 208 of the Act or an
application for withholding of removal
under section 241(b)(3) of the Act, the
Secretary, in general, will not favorably
adjudicate the claims of aliens who
claim persecution based on the
following list of nonexhaustive
circumstances’’); see also Grace II, 965
F.3d at 906 (holding that the inclusion
of qualifying terms like ‘‘in general’’ and
‘‘generally’’ demonstrated that the
government had not enacted a rule that
all gang-based asylum claims would fail
to demonstrate eligibility for asylum). In
other words, the rule implicitly allows
for those rare circumstances in which
the specified circumstances could in
fact be the basis for finding nexus given
the fact-intensive nature of nexus
determinations. See 85 FR at 36279. The
amended regulations do not remove that
fact-intensive nature from the nexus
inquiry; rather, the amended regulations
provide clarity in order to reduce the
amount of time that adjudicators must
spend evaluating claims. While the
Departments did consider expediency
and fairness, the Departments disagree
that expediency is prioritized over and
above due process.
The Departments disagree with
commenters’ concerns that the nexus
provisions eliminate the mixed motive
analysis or violate the ‘‘one central
reason’’ standard. As discussed above in
Section II.C.4.3 of this preamble, to the
extent that aspects of persecution
adjudications are not covered by the
rule, the Departments expect
adjudicators to conduct all
determinations consistent with the law,
regulations, and precedent. Here, the
rule provides guidance on harms that
would not be considered on account of
one of the five protected grounds; the
rule did not state, nor was it meant to
be construed, that it precluded mixed
motive analysis if the situation involved
one of the five protected grounds in
addition to one of the listed
circumstances that would generally not
be harm on account of a protected
ground. Further, the preamble to the
NPRM acknowledges mixed motive
claims by quoting the REAL ID Act of
2005, which defined the nexus element
as requiring that one of the five
protected grounds to be ‘‘at least one
central reason for persecuting the
applicant.’’ 85 FR at 36281.
As to the concerns surrounding
Matter of A–B–, the Departments
reiterate the above discussion that
adjudicators should continue to engage
in individualized, fact-based
adjudications as the rule provides only
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a list of circumstances that do not
constitute harm on account of a
protected ground in most, but not all,
cases. Accordingly, the rule is
consistent with the Attorney General’s
admonishment, in Matter of A–B–, of the
BIA for failing to engage in an
individualized analysis and instead
accepting the Government’s concessions
as true. 27 I&N Dec. at 339. Regarding
commenters’ further concerns that the
rule should not codify Matter of A–B–
given its varied treatment by the Federal
courts, the Departments note that the
United States Court of Appeals for the
District of Columbia Circuit recently
affirmed that Matter of A–B– holds that
decision makers must make individual
determinations on a case-by-case basis.
Grace II, 965 F.3d at 905. The
Departments also note that every circuit
court addressing Matter of A–B– on its
merits so far, as opposed to the unusual
procedural challenge at issue in Grace
II, has found it to be a valid exercise of
the Attorney General’s authority. See,
e.g., Gonzales-Veliz v. Barr, 938 F.3d at
234 (‘‘In sum, because A–B– did not
change any policy relating to asylum
and withholding of removal claims, we
reject Gonzales-Veliz argument that A–
B– constituted an arbitrary and
capricious change in policy.’’); DiazReynoso v. Barr, 968 F.3d 1070, 1080
(9th Cir. 2020) (‘‘Accordingly, we
decline to hold that the Attorney
General’s decision in Matter of A–B–
was arbitrary or capricious.’’).
The Departments disagree with the
commenters’ allegation that the
Departments conflated nexus with other
asylum requirements by not solely
focusing on the perpetrator’s state of
mind. The NPRM provides a list of
situations that would not ordinarily be
on account of a protected ground. 85 FR
at 36281. The listed situations are
attenuated from protected grounds to
the extent that they do not meet the
necessary nexus requirement. While
some of the listed situations,
particularly those related to the
rationale for the harm, are closely
related to other elements of asylum,
including particular social group, a
nexus analysis has often required an
examination of the persecutor’s views.
See Sharma v. Holder, 729 F.3d 407,
412–13 (5th Cir. 2013); Caal-Tiul v.
Holder, 582 F.3d 92, 95 (1st Cir. 2009).
Thus, the inclusion of the situations
related to rationale for the harm are
consistent with case law.
Finally, the Departments reiterate that
the NPRM does not re-write asylum law
as some commenters suggested. As
noted in the NPRM and herein, the
provisions of the rule related to the
substance of asylum claims flows from
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well-established statutory authority and
relevant case law; thus, it does not ‘‘rewrite’’ substantive asylum law. The
NPRM falls squarely within the
Departments’ authority, which is
discussed more fully in Section 6.5 of
this preamble.
4.4.1. Interpersonal Animus or
Retribution
Comment: Commenters expressed
particular concerns regarding the
specification that claims based on
‘‘interpersonal animus or retribution’’
generally will not be favorably
adjudicated. 8 CFR 208.1(f)(1),
1208.1(f)(1). One commenter opined
that it was arbitrary and irrational for
the Departments to rely on Zoarab v.
Mukasey, 524 F.3d 777, 781 (6th Cir.
2008), in support of this change because
that case’s facts were ‘‘unusual.’’
Commenters expressed confusion as
to whether interpersonal modified both
animus and retribution. If it did not
modify retribution, commenters
expressed concern that retribution,
which they defined as punishment,
encompasses all asylum claims.
Other commenters remarked that all
harm between people is interpersonal.
Commenters also expressed concern
that the inclusion of this situation
would result in the erasure of mixed
motive analysis as some ‘‘may engage in
persecution for pretextual reasons to
hide their bias.’’
Response: The inclusion of claims
based on ‘‘interpersonal animus and
retribution’’ as examples of claims that
will generally not result in a favorable
adjudication because the harm is not on
account of a protected ground is
consistent with longstanding precedent.
The Departments cited to just one case,
Zoarab, 524 F.3d at 781, to illustrate
this point in the NPRM, but there are
numerous other examples. See, e.g.,
Martinez-Galarza v. Holder, 782 F.3d
990, 993 (8th Cir. 2015) (finding that
harm ‘‘motivated by purely personal
retribution’’ is not a valid basis for an
asylum claim); Madrigal v. Holder, 716
F.3d 499, 506 (9th Cir. 2013) (explaining
that ‘‘mistreatment motivated purely by
personal retribution will not give rise to
a valid asylum claim’’); AmilcarOrellana v. Mukasey, 551 F.3d 86, 91
(1st Cir. 2008) (holding that ‘‘[f]ear of
retribution over personal matters is not
a basis for asylum under the
Immigration and Nationality Act’’); Jun
Ying Wang v. Gonzales, 445 F.3d 993,
998 (7th Cir. 2006) (acknowledging that
the Seventh Circuit has ‘‘repeatedly
held that a personal dispute cannot give
rise to a claim for asylum’’); MolinaMorales v. INS, 237 F.3d 1048, 1052
(9th Cir. 2001) (quoting Grava v. INS,
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and reiterating that ‘‘[p]urely personal
retribution is, of course, not’’ a
protected ground, specifically, imputed
political opinion); Blanco de Belbruno
v. Ashcroft, 362 F.3d 272, 284 (4th Cir.
2004) (finding that ‘‘[f]ears of
‘retribution over purely personal matters
. . .’ do[es] not constitute [a] cognizable
bas[is] for granting asylum’’) (quoting
Huaman–Cornelio v. BIA, 979 F.2d 995,
1000 (4th Cir. 1992)). The Departments
disagree that Zoarab is not an accurate
example of this basic proposition
despite commenters’ characterizations
of the case’s particular facts.
Furthermore, after the NPRM was
promulgated, the Attorney General
made the point more explicitly that
interpersonal animus or retribution will
generally not support a nexus finding
required under the INA. See Matter of
A–C–A–A–, 28 I&N Dec. 84, 92 (A.G.
2020) (‘‘An alien’s membership in a
particular social group cannot be
incidental, tangential, or subordinate to
the persecutor’s motivation for why the
persecutor sought to inflict harm. . . .
Accordingly, persecution that results
from personal animus or retribution
generally does not establish the
necessary nexus.’’ (cleaned up)). ‘‘The
reasoning for this is straightforward:
When private actors inflict violence
based on a personal relationship with a
victim, then the victim’s membership in
a larger group may well not be ‘one
central reason’ for the abuse.’’ Id.
(internal quotation marks omitted).
To the extent commenters argue that
any harm between two people is
‘‘interpersonal,’’ commenters
misinterpret both the cases supporting
this provision and the rule itself.
Instead, the point here is that a personal
dispute between two people—for
example a property dispute that causes
some sort of altercation or a personal
altercation because of one person’s
involvement with a criminal
investigation and prosecution—is not
generally a valid basis for an asylum
claim because it is not harm on account
of a protected ground. Further, as set out
in the rule, the qualifier ‘‘interpersonal’’
applies to both animus and retribution.
Accordingly, commenters are incorrect
that this provision states that any claim
based on ‘‘retribution’’ would generally
be insufficient and that all or most
claims would fail as a result.
Finally, the Departments reiterate the
discussion above in Section II.C.4.4 of
this preamble that the inclusion of these
examples does not foreclose a mixed
motive analysis. Accordingly, to the
extent an applicant’s fear is based on
harm partially motivated by an
interpersonal dispute and partially
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motivated by another potentially
protected ground, the adjudicator will
consider those particular facts and
circumstances to determine the
applicant’s eligibility for asylum or
statutory withholding of removal.
4.4.2. Interpersonal Animus in Which
the Alleged Persecutor Has Not
Targeted, or Manifested an Animus
Against, Other Members of an Alleged
Particular Social Group in Addition to
the Member Who Has Raised the Claim
at Issue
Comment: Commenters also raised
concerns regarding this change in the
NPRM described in this heading. One
commenter argued that it was a ‘‘clear
attempt to bar women from obtaining
asylum based on domestic violence,’’ a
claim that the commenter noted was an
‘‘uncontroversial basis for asylum in
many of our courtrooms until the
Attorney General issued Matter of
A–B–.’’ One commenter asserted that
this amendment gives the persecutor a
‘‘free pass’’ to persecute someone
because that person will be unable to
establish that another person suffered
under this persecutor. Further, the
commenter argued that asking an alien
to investigate, while attempting to flee
for safety, whether the persecutor had
persecuted others was impossible,
absurd, and arbitrary. Another
commenter claimed that it violated the
INA to require an alien to demonstrate
that the persecutor ‘‘manifested animus
against others.’’ One commenter
claimed that the amendment was
irrational because it held aliens seeking
asylum through membership in a
particular social group to a different and
higher evidentiary standard than aliens
seeking asylum through the other four
protected grounds. The commenter
asserted that this reading was supported
by the BIA’s use of ejusdem generis in
Matter of Acosta, 19 I&N Dec. 211, and
the Attorney General’s favorable citation
of the rule in Matter of L–E–A–, 27 I&N
Dec. 581. Another commenter insisted
that ‘‘interpersonal’’ was a meaningless
modifier.
Response: The Departments, based on
prior case law, decided that
demonstration of animus against other
members of the particular social group
is generally necessary to establish
nexus. 85 FR at 36281; see also Matter
of A–C–A–A–, 28 I&N Dec. 84, 92 (A.G.
2020) (‘‘Furthermore, if the persecutor
has neither targeted nor manifested any
animus toward any member of the
particular social group other than the
applicant, then the applicant may not
satisfy the nexus requirement.’’). The
focus of the nexus requirement is
membership in the group, INA
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101(a)(42), 8 U.S.C. 1101(a)(42), and by
definition, a ‘‘group’’ encompasses more
than one individual. Thus, an alleged
persecutor who has no interest in
harming other individuals ostensibly in
that group is generally not seeking to
persecute one individual on account of
his or her membership in that alleged
particular social group. Without such
animus against other group members,
the motivation would appear to be
personal, rather than on account of
membership in the group, and a
personal dispute, as discussed above, is
generally insufficient on its own to
qualify the applicant for the relief of
asylum. See Madrigal, 716 F.3d at 506.
Asylum law is not meant to provide
redress for every victim of crime no
matter how sympathetic those victims
may be. Accordingly, in order to
demonstrate that an alien was
persecuted ‘‘on account of’’ a particular
social group based on interpersonal
animus, the alien will ordinarily need to
demonstrate that the persecutor has
targeted or manifested an animus
against someone else in that particular
social group. Because an alien will
necessarily articulate a particular social
group that is socially distinct in order
for the group to be cognizable in the first
instance, it is reasonable to expect the
alien to be able to articulate whether the
alleged persecutor has sought to harm
other members of that group. The rule
does not require aliens to investigate or
ask their alleged persecutors anything;
rather, the aliens should already have
evidence about the persecutor’s motives
in order to advance a valid asylum
claim in the first instance, especially in
cases where the alleged persecutor is the
government.
Despite the inclusion of this ground
as a statement of one type of claim that
is generally incapable of supporting an
application for relief, the Departments
reject commenters’ interpretation of this
provision as a bar. Rather, as the
Departments have detailed above, the
rule itself allows for circumstances
where a listed situation, based on the
specific facts, will support a nexus
finding. For example, as noted by
commenters, an applicant who is a
persecutor’s initial victim may argue
that despite the persecutor’s lack of
action against other group members, the
applicant’s dispute with the persecutor
is in fact on account of the protected
ground and not on account of a nonprotected personal concern.52
52 The Departments also note that the
commenters’ example of an ‘‘initial victim’’
necessarily presumes both that there are other
victims and that the alien knows or will know of
them. Consequently, that example would fall
outside of the rule’s purview in any event.
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Accordingly, commenters’ suggestion
that each persecutor will have a ‘‘free
pass’’ is also incorrect.53
Additionally, the Departments
disagree that this provision evidences
discriminatory intent against a
particular class of asylum applicants.
The rule is designed to provide
expedited adjudication of meritorious
claims as well as increased clarity and
uniformity—a problem that commenters
highlighted by noting that ‘‘many,’’ but
not all, courts held a particular standard
regarding applications premised on
domestic violence.
The Departments do not believe that
this requirement violates the INA, and
without a more specific comment, they
are unable to respond.
This provision is not irrational and
does not hold aliens relying on
membership in a particular social group
to a higher evidentiary standard.
Although particular social group is a
more amorphous category than race,
religion, nationality, or political
opinion—and, thus, more in need of
definitional clarity—each protected
ground requires demonstration of the
same base elements: Persecution or a
well-founded fear of persecution on
account of a protected ground.
Further, ‘‘interpersonal’’ is not a
meaningless modifier. The Departments
use the term ‘‘interpersonal’’ to
differentiate instances of animus and
dispute between two private parties
from instances of animus and dispute
between a private individual and a
government official.
4.4.3. Generalized Disapproval of,
Disagreement With, or Opposition to
Criminal, Terrorist, Gang, Guerilla, or
Other Non-State Organizations Absent
Expressive Behavior in Furtherance of a
Discrete Cause Against Such
Organizations Related To Control of a
State or Expressive Behavior That is
Antithetical to the State or a Legal Unit
of the State
Comment: Commenters expressed
concerns regarding the required
analysis, the underlying intent, and the
necessary elements of the inclusion of
‘‘generalized disapproval of,
disagreement with, or opposition to
criminal, terrorist, gang, guerilla, or
other non-state organizations absent
expressive behavior in furtherance of a
discrete cause against such
organizations related to control of a state
or expressive behavior that is
antithetical to the state or a legal unit of
53 Further, persecutors are not brought to justice
under U.S. asylum law nor should it be viewed that
way. The Departments are not giving persecutors
‘‘one free pass’’ because they are often not dealing
with the persecutors themselves.
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the state’’ in the list of circumstances
that will generally not support a nexus
finding. Specifically, some commenters
argued that this provision undermines a
rigorous fact-based analysis as it
‘‘categorically state[s] that certain
opinions can never be political.’’ The
commenters urged that this type of
labeling is incorrect and improper.
Additionally, commenters asserted that
the provision ‘‘evidences a clear
discriminatory intention to utterly
annihilate the entire genres of asylum
cases where opposition to gangs
constitutes a political opinion.’’ Another
commenter claimed that the rule was
‘‘clearly designed’’ to eliminate asylum
for those fleeing the ‘‘Northern
Triangle’’ (El Salvador, Guatemala, and
Honduras) of Central America. One
commenter asserted that because the
international criminal organizations
function as quasi-governments, there is
often no reason for an alien to engage in
expressive behavior that is antithetical
to the state because ‘‘the state has no
real authority.’’
Response: First, commenters are
incorrect that this provision prohibits
certain opinions from being considered
‘‘political.’’ Instead, as discussed above,
adjudicators should continue to engage
in fact-based analysis of the particular
facts and circumstances of an individual
applicant’s claim, and the rule expressly
allows for rare circumstances in which
the facts of a listed situation could be
the basis for finding nexus. This
provision does not remove that factintensive nature from the nexus inquiry.
Additionally, the Departments
disagree that this provision evidences a
discriminatory intent. Again, the rule is
designed to allow a more expeditious
adjudication of meritorious asylum
claims so that applicants do not have to
wait a lengthy amount of time before
receiving relief. The Departments’
inclusion in this section of the rule of
a certain category of claims that is
frequently raised but is generally
insufficient to establish nexus is not the
product of a desire to harm or inhibit a
particular people, nationality, or group.
As to a commenter’s suggestion that
aliens may be unlikely to engage in
expressive behavior that is antithetical
to the state because the state has no real
authority due to international criminal
organizations functioning as quasigovernments, the Departments interpret
this comment to refer to organizations
such as drug cartels whom the
commenter believes function as de facto
governments in some countries.
Although the Departments question the
factual accuracy of the commenter’s
point and otherwise believe the
comment is either hypothetical or
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speculative, especially due to the factintensive, case-by-case nature of asylum
application adjudications, they
nevertheless note that the rule does not
preclude claims based on opposition to
non-state organizations related to efforts
by the state to control such
organizations. 8 CFR 208.1(d),
1208.1(d). And if an applicant
establishes that the organization is the
de facto government or otherwise
functions in concert with the
government, then the rule does not
preclude a claim based on the
applicant’s opposition to that
organization or the government. In other
words, whether the country has ‘‘real
authority’’ or not, nothing in the rule
precludes a claim based on opposition
to non-state organizations in the
circumstances outlined in the rule,
though the Departments note that, in
general, aliens who do not engage in
expressive behavior regarding such
organizations or the government are
unlikely to establish a nexus based on
political opinion for purposes of an
asylum application.
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4.4.4. Resistance to Recruitment or
Coercion by Guerilla, Criminal, Gang,
Terrorist, or Other Non-State
Organizations
Comment: Commenters asserted that
the inclusion of ‘‘resistance to
recruitment or coercion by guerilla,
criminal, gang, terrorist, or other nonstate organizations’’ as a particular
circumstance that generally does not
support a nexus finding does not take in
to account the significant power yielded
by transnational criminal organizations,
which often function as de facto
governments.
Response: The Departments
appreciate commenters’ concerns about
the expansive power of transnational
criminal organizations. The
Departments agree with commenters
that such organizations may pose
significant dangers. If an alien asserts
that the government is unable or
unwilling to control the transnational
criminal organization, the alien may
present evidence to establish that. As
the Departments have previously
mentioned, the NPRM explicitly
acknowledges the fact-intensive nature
of the nexus inquiry and further
acknowledges that rare circumstances
defined by the listed situations may
warrant a favorable nexus
determination.
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4.4.5. The Targeting of the Applicant for
Criminal Activity for Financial Gain
Based on Wealth or Affluence or
Perceptions of Wealth or Affluence
Comment: Regarding ‘‘the targeting of
the applicant for criminal activity for
financial gain based on wealth or
affluence or perceptions of wealth or
affluence,’’ one commenter expressed
concern about the Departments’ citation
to Aldana-Ramos v. Holder, 757 F.3d 9,
18 (1st Cir. 2014), as support. The
commenter stated that the case’s
primary holding was ‘‘even if a
persecutor seeks to harm an asylum
seeker for financial gain, the BIA must
engage in a mixed motive analysis to
determine whether the protected
characteristic was also a central reason
for the persecution.’’ The commenter
alleged that the Departments were
relying on Aldana-Ramos to
‘‘implement a blanket rule against
asylum seekers who may be targeted, in
part, based on wealth or perceived
wealth, with no regulatory requirement
that adjudicators engage in mixed
motive analysis, as is required under the
Real ID Act as codified in the INA.’’
Response: As discussed above, the
nexus provisions do not eliminate the
mixed-motive analysis. The NPRM
explicitly detailed that it was providing
guidance on what generally would not
be considered one of the five protected
grounds; the NPRM did not state, nor
was it meant to be construed, that it
precluded mixed-motive analysis if the
situation involved one of the five
protected grounds in addition to a
situation on the list that was not
adjudicated to be a protected ground.
Thus, the NPRM is consistent with
mixed-motive analysis precedent, and
an applicant may provide argument, like
the respondent in Aldana-Ramos, that
his or her alleged persecutor is
motivated by a protected ground in
addition to the non-protected ground
stated in the exception.
4.4.6. Criminal Activity
Comment: Commenters expressed
concern about the rule’s inclusion of
‘‘criminal activity’’ as the basis of claims
that will generally not support a
favorable adjudication due to the
breadth of the provision and the
underlying precedent. Numerous
commenters opined that ‘‘virtually all
harm’’ that satisfies the persecution
requirement could be characterized as
‘‘criminal activity’’ because ‘‘in virtually
every country, beatings, rape, and
threatened murder’’ are criminalized.
Another commenter realized that this
broad definition may not be what the
Departments intended, but without
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providing boundaries on the term, the
Departments invited ‘‘mass denials of
claims by those who have bona fide
asylum claims.’’ A commenter
expressed concern that the category
would include aliens who were forced
or coerced into committing crimes.
Additionally, a commenter expressed
reservations about the Departments’
reliance on Zetino v. Holder, 622 F.3d
1007, 1016 (9th Cir. 2010), explaining
that the ‘‘alien was detained and
unrepresented before the immigration
court and the BIA’’ and ‘‘it was not until
he had filed a pro se petition for review
that he obtained counsel, and most of
his appeal centered on procedural
defects in the proceedings below.’’
Response: The inclusion of ‘‘criminal
activity’’ is not overly expansive.
Rather, as demonstrated by the
explanatory case citation provided by
the Departments, this provision is meant
to capture cases that are premised on
generalized criminal activity. See
Zetino, 622 F.3d at 1016 (discussing the
‘‘desire to be free from harassment by
criminals motivated by theft or random
violence by gang members’’).
The Departments find that these
generalized claims are distinct from the
commenters’ concerns that persecutory
acts in general may be ‘‘criminal.’’ To
the extent commenters are nevertheless
concerned that this provision would
prohibit a broader swath of claims, the
Departments again reiterate that these
categories of cases are not categorical
bans. Instead, the rule explicitly noted
that there may be exceptions, and an
applicant may present argument to the
adjudicator as to why their individual
case meets the nexus requirement. For
example, aliens who were forced and
coerced into crime may be an exception
based upon the specific facts of the
situation.
Further, the citation to Zetino remains
an accurate example of the Departments’
proposition despite commenters’
concerns, which involved procedural
issues unrelated to the relevant points
in the case.
4.4.7. Perceived, Past or Present, Gang
Affiliation
Comment: Regarding the inclusion of
‘‘perceived, past or present, gang
affiliation’’ as the basis of claims that
will generally not support a favorable
adjudication, commenters objected to a
perceived double standard and the
implications for aliens, especially
children. Several commenters argued
that this provision was arbitrary and
capricious because it would make
individuals who were incorrectly
imputed to be gang members ineligible
for asylum while allowing incorrect
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imputation of other characteristics, for
example, homosexuality, to be grounds
for asylum. Another commenter noted
that this change would twice victimize
aliens because imputed gang
membership occurs at no fault of their
own. One commenter also expressed
concern that children who are forced
into prostitution or drug smuggling
would lose their right to asylum.
Response: The Departments
acknowledge commenters’ concerns and
have sympathy for aliens who
incorrectly have gang membership
imputed onto them by no fault of their
own. These concerns, however, do not
result in a viable asylum claim. ‘‘[T]he
asylum statute does not provide redress
for every misfortune.’’ Matter of A–B–,
27 I&N Dec. at 318.
Regarding commenters’ concerns that
the rule provides an inconsistent
approach to immutability, commenters
compare dissimilar claims. While gang
affiliation and homosexuality are traits
that may both be imputed, accurately or
not, to an applicant, the underlying
ground of the latter may be a protected
ground while the former is not. Thus,
the Departments’ approach toward
immutability is consistently based on
the protected nature of the underlying
ground.
Commenters are incorrect that this
provision would cause children, such as
those forced into prostitution or drug
smuggling by criminal gangs, to lose
their eligibility for asylum.54 Indeed, as
noted in the preamble, claims premised
on these sorts of gang affiliations had
already been found in case law to not
support a finding of asylum eligibility
prior to the proposed rule’s publication.
See, e.g., Reyes, 842 F.3d at 1137–38
(holding that ‘‘former members of the
Mara 18 gang in El Salvador who have
renounced their membership’’ was not a
cognizable particular social group);
Matter of A–B–, 27 I&N Dec. at 320
(‘‘Generally, claims by aliens pertaining
to . . . gang violence perpetrated by
non-governmental actors will not
qualify for asylum.’’). Because these
gang-based claims are not related to a
protected ground, it reasonably follows
that they would further not succeed on
nexus because the harms would not be
on account of a protected ground.
Nevertheless, the Departments again
reiterate that, as discussed above, the
rule explicitly provides for rare
exceptions; children who were forced
into prostitution or drug smuggling may
present argument that their case
54 The Departments note that aliens who are
victims of criminal activities, including human
trafficking, may be eligible for other immigration
benefits beyond asylum based on that victimization.
INA 101(a)(15)(T),(U), 8 U.S.C. 1101(a)(15)(T),(U).
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sufficiently meets the nexus
requirements based upon the specific
facts in their application.
4.4.8. Gender
Comment: Some commenters
expressed strong objections to the
NPRM’s inclusion of gender in the list
of circumstances that would not
ordinarily result in a favorable
adjudication, including allegations that
the provision is arbitrary and capricious
as well as ‘‘cruel and contrary to the
purposes underlying Congress’ desire to
provide protection to refugees.’’ Some
commenters also argued that the
amendments took a new and capricious
position and would result in substantial
and irreparable harm to aliens. One
commenter opined that this provision
was really about a desire to reduce the
amount of aliens who could seek
asylum.
Commenters asserted that gender has
been one of the bedrock bases for
asylum claims and that, as a result, the
rule overturns decades of contrary legal
precedent. In support, commenters cited
to multiple cases ‘‘in which immigration
judges, the BIA, and the courts of
appeals have held that gender-based
persecution provides a valid ground for
asylum.’’ 55 One commenter claimed
that the proposed rule ‘‘runs counter to
every case to have considered it.’’
According to commenters, this includes
the precedent cited in support of the
rule, Niang v. Gonzales, 422 F.3d 1187
(10th Cir. 2005), which they assert in
fact holds that gender can provide an
adequate basis for establishing
membership in a particular social group.
Id. at 1199–1200. Some commenters
asserted that the Departments should
have included a larger quotation in the
NPRM preamble, including:
the focus with respect to such claims should
be not on whether either gender constitutes
a social group (which both certainly do) but
55 For example, one commenter cited to the
following cases: De Pena-Paniagua v. Barr, 957 F.3d
88, 93–94 (1st Cir. 2020); Cece, 733 F.3d 671–72;
Sarhan v. Holder, 658 F.3d 649, 654–57 (7th Cir.
2011); Perdomo, 611 F.3d at 662; Agbor v. Gonzales,
487 F.3d 499, 503 (7th Cir. 2007); Hassan v.
Gonzales, 484 F.3d 513, 517–18 (8th Cir. 2007);
Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir. 2006);
Gao v. Gonzales, 440 F.3d 62, 70 (2d Cir. 2004),
vac’d on other grounds sub nom. Keisler v. Gao, 552
U.S. 801 (2007); Niang, 422 F.3d at 1999–1200;
Mohammed v. Gonzales, 400 F.3d 785, 795–98 (9th
Cir. 2005); Balogun v. Ashcroft, 374 F.3d 492, 499
(7th Cir. 2004); Abay v. Ashcroft, 368 F.3d 634,
639–42 (6th Cir. 2004); Yadegar-Sargis v. INS, 297
F.3d 596, 603–04 (7th Cir. 2002); Fatin, 12 F.3d at
1241; In re Kasinga, 21 I&N Dec. 357, 375 (BIA
1996); cf., e.g., Kadri v. Mukasey, 543 F.3d 16, 21
(1st Cir. 2008) (‘‘Sexual orientation can serve as the
foundation for a claim of persecution, as it is the
basis for inclusion in a particular social group.’’);
Karouni v. Gonzales, 399 F.3d at 1171–72 (reaching
the same conclusion).
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80333
on whether the members of that group are
sufficiently likely to be persecuted that one
could say that they are persecuted ‘‘on
account of’’ their membership. 8 U.S.C.
1101(a)(42)(A). It may well be that only
certain women—say, those who protest
inequities—suffer harm severe enough to be
considered persecution. The issue then
becomes whether the protesting women
constitute a social group.
Niang, 422 F.3d at 1199. One
commenter expressed a belief that the
Departments’ choice of language to cite
in Niang was designed to deceive the
public and to reduce the notice and
comment burden.
Commenters asserted that the
inclusion of gender conflicts with the
international obligations and
international norms of the United
States. For example, a commenter noted
that the UNHCR, which oversees the
Refugee Convention, has confirmed that
people fleeing persecution based on
gender, gender-identity, and sexual
orientation do qualify for asylum under
the Convention’s definition of a refugee.
In regards to numerosity, the commenter
pointed to UNHCR guidance which
explained, ‘‘[t]he size of the group has
sometimes been used as a basis for
refusing to recognize ‘women’ generally
as a particular social group. This
argument has no basis in fact or reason,
as the other grounds are not bound by
this question of size.’’ Commenters
stated that because the inclusion of
gender would exclude meritorious
claims for relief, the rule against genderbased asylum claims would violate the
government’s duty of non-refoulement
as codified in statutory withholding of
removal at section 241(b)(3)(A), 8 U.S.C.
1231(b)(3)(A). Commenters stated that
the rule against gender-based asylum
would aid and abet violations of the law
of nations in contravention of the Alien
Tort Claims Act (‘‘ATCA’’) because
there is a specific and universal
obligation to prevent domestic violence
and other violence against women in
international law.
One commenter argued that it is
improper to disfavor gender-based
claims in the nexus section. In support
of that position, the commenter asserted
that to support a general bar on genderbased claims within the nexus analysis,
the agencies would need to show that
gender is not generally a central reason
for persecution throughout the world,
and further, the proposed regulation
changes do nothing to establish any
empirical claims about causation.
Commenters also expressed concern
that the amendment would prevent
adjudicators from evaluating claims on
a case-by-case basis.
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Another commenter noted that levels
of gender-based violence have risen
during the coronavirus pandemic and
stated that, as a result, it is not
appropriate for the Departments to take
action to restrict asylum claims based
on gender.
A commenter requested that the
Departments not eliminate one of the
few protections for gender-based
violence.
Another commenter noted the
Department of State’s work to reduce
and eliminate gender-based violence,
including emphasizing in the refugee
protection context that the
‘‘empowerment and protection of
women and girls has been a central part
of U.S. foreign policy and national
security’’ and that ‘‘gender-based
violence[ ] is a critical issue’’ that is
‘‘intricately linked to’’ the Department’s
strategic goals.
Finally, a commenter made numerous
unsupported claims, including that the
inclusion of gender violates the
constitutional guarantee of equal
protection; that the inclusion of gender
in the laundry list is contrary to the
evidence; and that the NPRM’s failure to
include a rationale for listing gender as
failing the nexus requirement is,
without more, sufficient to render that
inclusion arbitrary.
Response: Regarding commenters’
concerns that gender and ‘‘private
criminal acts’’ would no longer be
recognized as a viable claim, the
Departments again note that the rule,
after listing the eight situations that will
generally not result in favorable
adjudication, also notes that in rare
circumstances, given the fact-specific
nature of such determinations, such
facts could be the basis for finding
nexus. Although the nexus requirement
for an asylum claim requires scrutiny
when an asserted particular social group
encompasses ‘‘millions’’ of individuals,
Matter of A–C–A–A–, 28 I&N Dec. 92,
the rule does not categorically bar all
gender-based asylum claims contrary to
the assertions of commenters. In other
words, the rule does not completely
prohibit applications with a nexus
related to issues of gender from being
granted, and the inclusion of gender in
the list of circumstances that generally
does not constitute harm on account of
a protected ground does not conflict
with the requirement that adjudicators
consider each application on a case-bycase basis. Further, a purpose for the
amendments was to allow for increased
clarity and more uniform adjudication
than the prior scheme which was
shaped through case law. Thus, the
Departments do not believe that the
inclusion of gender in the listed
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situations generally resulting in
unfavorable adjudication is cruel, novel,
capricious, or contrary to congressional
intent.
The Departments acknowledge
commenters’ discussion of a wide range
of case law involving issues
surrounding gender and applications for
asylum or for statutory withholding of
removal. To the extent that the
Departments’ inclusion of ‘‘gender’’ as
an example of a nexus basis that
generally will not support a favorable
adjudication conflicts with the provided
case law, the Departments reiterate the
discussion in Section II.C.4.3 of this
preamble regarding Brand X. The
Departments invoke their authority to
interpret the ambiguities in the Act,
including what constitutes harm on
account of a protected ground, outside
the bounds of any prior judicial
constructions. See Brand X, 545 U.S. at
982 (explaining that agencies are not
bound by prior judicial interpretations
of ambiguous statutory interpretations
because there is a presumption that
Congress left statutory ambiguity for the
agencies to resolve).
Regarding commenters’ specific
objections to the Departments’ use of
Niang, the Departments agree that the
section following the quote in the
NPRM stated that the issue surrounding
gender is the nexus determination. This
does not undermine, but enhances, the
inclusion of gender in the listed
circumstances that, without more, will
not generally result in favorable
adjudication based on nexus. Niang
goes on to place more limits on a
specific gender-based particular social
group: ‘‘It may well be that only certain
women—say, those who protest
inequities—suffer harm severe enough
to be considered persecution. The issue
then becomes whether the protesting
women constitute a social group.’’
Niang, 422 F.3d at 1200. This tracks
with the rule: Harm on account of
gender alone will generally result in
unfavorable adjudication.
Another commenter pointed to the
UNHCR’s approach toward gender and
numerosity. While the Departments
appreciate the comment, they note that
they are not bound by the UNHCR, and
commenters’ reliance on guidance from
UNHCR is misplaced. UNHCR’s
interpretations of or recommendations
regarding the Refugee Convention and
Protocol, such as set forth in the
UNHCR Handbook, are ‘‘not binding on
the Attorney General, the BIA, or United
States courts.’’ INS v. Aguirre-Aguirre,
526 U.S. at 427. ‘‘Indeed, the Handbook
itself disclaims such force, explaining
that ‘the determination of refugee status
under the 1951 Convention and the
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1967 Protocol . . . is incumbent upon
the Contracting State in whose territory
the refugee finds himself.’ ’’ Id. at 427–
28. Further, to the extent such guidance
‘‘may be a useful interpretative aid,’’ id.
at 427, it would apply only to statutory
withholding of removal, which is the
protection that implements Article 33 of
the Convention, cf. R–S–C– v. Sessions,
869 F.3d 1176, 1188, n.11 (10th Cir.
2017) (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’’). In
the withholding of removal context, the
Departments disagree with commenters
that the rule will violate the United
States’ non-refoulement obligations
because such claims are not, without
more, meritorious.
In addition, the Departments note that
commenters asserted that violating a socalled ‘‘specific and universal obligation
to prevent domestic violence and other
violence against women’’ was a viable
claim under the ATCA. The
Departments further note, however, that
the ‘‘aiding and abetting’’ violations of
the law of nations is not currently
recognized as within the scope of the
ATCA. Doe v. Nestle, S.A., 929 F.3d 623
(9th Cir. 2019), cert. granted sub nom.
Nestle USA, Inc. v. Doe I, No. 19–416,
2020 WL 3578678 (July 2, 2020), and
cert. granted sub nom. Cargill, Inc. v.
Doe I, No. 19–453, 2020 WL 3578679
(July 2, 2020). Moreover, the
commenters failed to demonstrate that
such a claim would ‘‘rest on a norm of
international character accepted by the
civilized world and defined with a
specificity comparable to the features of
the 18th-century paradigms,’’ such as
violation of safe conducts, infringement
of the rights of ambassadors, or piracy,
that the Court has recognized. Sosa v.
Alvarez-Machain, 542 U.S. 692, 724–25
(2004).
Much of the commenters’ concern
regarding the inclusion of gender arises
from a misunderstanding of the
complexity of particular social groups
and the role of mixed-motive analysis.
The Departments explain that the
inclusion of gender indicates that,
generally, a claim based on gender,
without additional evidence, will not be
favorably adjudicated in regards to the
nexus claim. However, it does not read,
nor should it be interpreted to mean,
that the inclusion of gender in the claim
is fatal. Rather, a claim based on gender
alone will generally be insufficient. As
to the role of mixed motive analysis, the
text of the NPRM acknowledges mixed
motive claims by quoting the REAL ID
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Act of 2005 that defined the nexus
element as requiring that one of the five
protected grounds be ‘‘at least one
central reason for persecuting the
applicant.’’ 85 FR at 36281. Further, the
NPRM explicitly detailed that it was
providing guidance on what would not
be considered one of the five protected
grounds; the NPRM did not state, nor
was it meant to be construed, that it
precluded mixed motive analysis if the
situation involved one of the five
protected grounds in addition to a
situation on the list that was not
adjudicated to be a protected ground.56
56 The Departments note that gender was not
included among other broad categories, such as race
or nationality, as a basis for refugee status in either
the 1951 Refugee Convention or the 1980 Refugee
Act. Further, no precedential decision has
unequivocally recognized gender, standing alone, as
a basis for asylum. See, e.g., Fisher v. INS, 79 F.3d
955, 963 (9th Cir. 1996) (en banc) (‘‘Persecution on
account of sex is not included as a category
allowing relief under section 101(a)(42)(A) of the
Act.’’). The Departments further note that gender
has frequently been analyzed by circuit courts in
the context of the definition of a particular social
group, rather than under the rubric of nexus, though
the courts themselves are in disagreement over the
issue. See Matter of A–C–A–A–, 28 I&N at 91
(‘‘Although I do not decide the matter in this case,
I note that there has been disagreement among the
courts of appeals about whether gender-based
groups may constitute a particular social group
within the meaning of the INA.’’). At least three
circuits have concluded that gender is too broad or
sweeping to constitute a particular social group
itself. See Gomez v. INS, 947 F.2d 660, 664 (2d Cir.
1991) (‘‘Like the traits which distinguish the other
four enumerated categories-race, religion,
nationality and political opinion-the attributes of a
particular social group must be recognizable and
discrete. Possession of broadly-based characteristics
such as youth and gender will not by itself endow
individuals with membership in a particular
group.’’), Safaie v. INS, 25 F.3d 636, 640 (8th Cir.
1994) (‘‘We believe this category is overbroad,
because no factfinder could reasonably conclude
that all Iranian women had a well-founded fear of
persecution based solely on their gender.’’); Da
Silva v. U.S. Att’y Gen., 459 F. App’x 838, 841 (11th
Cir. 2012) (‘‘The BIA determined that ‘women’ was
too broad to constitute a particular social group. We
agree that such a group is too numerous and
broadly defined to be considered a ‘social group’
under the INA.’’). Another circuit has quoted the
language in Gomez approvingly. Lukwago v.
Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003). Still
another has rejected ‘‘generalized sweeping
classifications for asylum,’’ while noting that the
Board ‘‘has never held that an entire gender can
constitute a social group under the INA.’’ Rreshpja
v. Gonzales, 420 F.3d 551, 555 (6th Cir. 2005). One
circuit has intimated that gender alone could suffice
to constitute a particular social group, though it
remanded the case to the Board to address that
issue in the first instance. Perdomo, 611 F.3d at
667; but see Rreshpja, 420 F.3d at 555 (‘‘We do not
necessarily agree with the Ninth Circuit’s
determination that virtually all of the women in
Somalia are entitled to asylum in the United
States.’’). Further, although gender is generally
regarded as an immutable characteristic, see e.g.,
Kauzonaite v. Holder, 351 F. App’x 529, 531 (2d
Cir. 2009) (‘‘However, although gender is an
immutable characteristic. . . gender alone is
insufficient to identify a particular social group.’’),
modern notions of gender fluidity may raise
questions about that assumption in individual
cases. Cf, e.g., Bostock v. Clayton, 140 S.Ct. 1731,
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The Departments disagree with
commenters that the rule must show
that gender is not the cause of harm
around the world in order to include
gender in the list of circumstances that
generally does not constitute harm on
account of a protected ground. Indeed,
these comments miss the purpose of this
discussion in the rule. The Departments
do not make any statement about the
question or prevalence of gender-based
harm in other countries, but instead the
point is that such harm is not on
account of a protected ground and
accordingly generally fails to support a
valid claim to asylum or to statutory
withholding of removal. As noted
elsewhere, asylum is not designed to
provide relief from all manners of harm
that may befall a person. See, e.g.,
Gjetani, 968 F.3d at 397–98.
The Departments further disagree
with commenters’ statements that the
inclusion of gender violates the
constitutional guarantee of equal
protection. The rule does not provide
any benefits or discriminate on the basis
of one gender over another.
Other commenters noted the severe
problem of gender-based violence,
especially in the global coronavirus
pandemic, and the extensive work the
Department of State is undertaking to
reduce and eliminate gender-based
violence. The Departments agree with
commenters regarding the severity of
the problem and the good work being
done across the Federal government to
address the problem. As previously
mentioned, however, the narrow asylum
statutes are not drafted to provide
redress for every problem. The
Departments must act within the legal
framework set out by Congress.
4.5. Evidence Based on Stereotypes
Comment: Commenters expressed
numerous reservations and
disagreements with the Departments’
regulation regarding the admissibility of
evidence based on or promoting
stereotypes to support the basis of an
1779 & n.45 (2020) (‘‘while the Court does not
define what it means by a transgender person, the
term may apply to individuals who are ‘gender
fluid,’ that is, individuals whose gender identity is
mixed or changes over time.’’ (Alito, J. dissenting)).
Further, because every alien has a gender of some
classification, gender may not carry sufficient
particularity to warrant classification as a particular
social group. Cf. Matter of L–E–A-, 27 I&N Dec. at
593 (‘‘Further, as almost every alien is a member of
a family of some kind, categorically recognizing
families as particular social groups would render
virtually every alien a member of a particular social
group. There is no evidence that Congress intended
the term ‘particular social group’ to cast so wide a
net.’’). In short, although the rule considers gender
under the category of nexus, it may also be
appropriately considered under the definition of
‘‘particular social group’’ as well, as the lists under
both definitions are nonexhaustive.
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applicant’s fear of harm. 8 CFR 208.1(g),
1208.1(g).
Some commenters alleged that the
NPRM created a vague new evidentiary
bar. Other commenters opined that the
provision excludes necessary and
critical evidence; some alleged that the
NPRM was ‘‘part of [the Departments’]
efforts to make it harder for asylum
seekers to present their cases,’’
including claims based on particular
social groups. Commenters also worried
that the changes would unfairly
advantage the government and violate
due process. Other commenters
expressed concern that the amendments
would place a larger burden on
adjudicators as they would be presented
with difficult and time-consuming
factual and legal issues. Regarding wellfounded fear, a commenter alleged that
the distinction between widespread,
systemic laws or policies—evidence
used to support a well-founded fear of
persecution—and cultural stereotypes is
so narrow that it will result in a
‘‘quagmire of confusion’’ and ‘‘countless
hours and resources of litigation.’’
Other commenters claimed that
cultural stereotypes were necessary for
well-founded fear of persecution claims
and were utilized in country condition
reports. For example, a commenter
argued that the Department of State’s
country reports contain cultural
stereotypes. As evidence of this claim,
the commenter included three quotes
from the Human Rights Report for
Guatemala: ‘‘[a] culture of indifference
to detainee rights put the welfare of
detainees at risk’’; ‘‘[t]raditional and
cultural practices, in addition to
discrimination and institutional bias,
however, limited the political
participation of women and members of
indigenous groups’’; and ‘‘[i]ndigenous
communities were underrepresented in
national politics and remained largely
outside the political, economic, social,
and cultural mainstream.’’ Further, the
commenter asserted that this was
evidence that ‘‘it would be impossible to
discuss conditions in any country
without discussing its culture and
without engaging in at least some
stereotyping.’’ The commenter
extrapolated this onto several other
elements of an asylum claim, including
a subjectively genuine and objectively
reasonable fear of harm and a socially
distinct, particular social group.
A commenter opined that this
provision was evidence that the
Departments ‘‘fail[ed] to engage in
reasoned decision making’’; the
commenter continued by claiming that
the NPRM ‘‘raises doubts about whether
the agency appreciates the scope of its
discretion or exercised that discretion in
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a reasonable manner.’’ Dep’t of
Homeland Sec. v. Regents of the Univ.
of Cal., 140 S. Ct. 1891, 1905 (2020)
(quoting Michigan v. EPA, 576 U.S. 743,
750 (2015) (internal quotation marks
omitted)).57 Finally, commenters
asserted that the provision’s purported
application only to aliens and not to
DHS represented an unfair asymmetry
because there was no prohibition of
DHS filing evidence promoting
stereotypes in opposition to asylum
applications.
Response: The Departments reject the
characterization of the rule regarding
admissibility of evidence based on
stereotypes as a new evidentiary bar.
Numerous courts, and the BIA, have
made clear that the Federal rules of
evidence do not apply in immigration
proceedings, but the evidence must be
probative and its admission may not be
fundamentally unfair. See, e.g.,
Rosendo-Ramirez v. INS, 32 F.3d 1085,
1088 (7th Cir. 1994); Baliza v. INS, 709
F.2d 1231, 1233 (9th Cir. 1983);
Tashnizi v. INS, 585 F.2d 781, 782–83
(5th Cir. 1978); Trias-Hernandez v. INS,
528 F.2d 366, 369 (9th Cir. 1975);
Marlowe v. INS, 457 F.2d 1314, 1315
(9th Cir. 1972); Matter of Toro, 17 I&N
Dec. 340, 343 (BIA 1980); Matter of Lam,
14 I&N Dec. 168, 170 (BIA 1972). As the
rule makes clear, ‘‘conclusory assertions
of countrywide negative cultural
stereotypes’’ are not probative of any of
the eligibility grounds for asylum.
Matter of A–B–, 27 I&N Dec. at 336 n.9.
For example, in Matter of A–B–, the
Attorney General determined that the
evidence submitted in Matter of A–R–C–
G–, 26 I&N Dec. 388 (BIA 2014), ‘‘an
unsourced partial quotation from a news
article eight years earlier,’’ was not
appropriate evidence to support the
‘‘broad charge’’ that Guatemala had a
‘‘ ‘culture of machismo and family
violence.’ ’’ Matter of A–B–, 27 I&N Dec.
at 336 n.9 (quoting Matter of A–R–C–G–
, 26 I&N Dec. at 394). Similarly, the rule
establishes that such unsupported
stereotypes are not admissible as
probative evidence. 85 FR at 36282
(‘‘pernicious cultural stereotypes have
no place in the adjudication of
applications for asylum and statutory
withholding of removal, regardless of
the basis of the claim’’); see also Matter
of A–C–A–A–, 28 I&N Dec. at 91 n.4
(‘‘Furthermore, the Board should
remember on remand that ‘conclusory
assertions of countrywide negative
cultural stereotypes . . . neither
contribute to an analysis of the
particularity requirement nor constitute
57 The Departments respond to allegations of
failure to engage in reasoned decision making
below in section II.C.6.2.
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appropriate evidence to support such
asylum determinations.’ ’’ (quoting
Matter of A–B–, 27 I&N Dec. at 336 n.9)).
Reliance on stereotypes about a
country, race, religion, nationality, or
gender is inconsistent with the
individualized consideration asylum
claims require. Further, by definition,
stereotypes are not subject to
verification and have little intrinsic
probative value; to the contrary, they
frequently undermine credibility
considerations that are important to an
asylum claim. Cf. Thomas v. Eastman
Kodak Co., 183 F.3d 38, 61 (1st Cir.
1999) (‘‘The concept of ‘stereotyping’
includes not only simple beliefs such as
‘women are not aggressive’ but also a
host of more subtle cognitive
phenomena which can skew
perceptions and judgments.’’). Instead,
they reflect ‘‘a frame of mind resulting
from irrational or uncritical analysis.’’
Nguyen v. INS, 533 U.S. 53, 68 (2001).
Thus, even ‘‘benevolent’’ stereotypes are
generally disfavored in law. Cf.
International Union, United Auto.,
Aerospace & Agric. Implement Workers
of Am. v. Johnson Controls, 499 U.S.
187, 199–200 (1991) (stating, in rejecting
employer policy related to female
fertility due to potential exposure to
fetal hazards, that the ‘‘beneficence of
an employer’s purpose does not
undermine the conclusion that an
explicit gender-based policy is sex
discrimination’’). In short, stereotypes
about another individual or country
have little place in American law as
evidence supporting any type of claim.
See United States v. Bahena-Cardenas,
411 F.3d 1067, 1078 (9th Cir. 2005)
(‘‘Refusing to allow expert testimony
that would encourage or require jurors
to rely on cultural stereotypes is not an
abuse of discretion.’’).
To be sure, asylum claims are
generally rooted in hearsay, frequently
cannot be confronted or rebutted, and
are typically uncorroborated except by
other hearsay evidence. See, e.g., Angov,
788 F.3d at 901 (‘‘ ‘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 the [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 pet’n for reh’g en banc)));
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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.’’). Thus, adjudicators are
certainly seasoned in assessing evidence
that is not subject to verification and has
minimal probative value in the context
of asylum claims.
Nevertheless, the Departments believe
that the harms associated with the use
of evidence rooted in stereotypes far
outweigh what little, if any, probative
value such evidence may have in an
asylum claim. Accordingly, the rule
does not represent a wholly new
evidentiary bar per se, but rather a
codification of the point that such
stereotypes will not meet the existing
admissibility standards because they are
inherently not probative. Contrary to
commenters’ suggestions, such evidence
should not be necessary to an asylum
application. Even if such stereotypes
were admitted into evidence, they
would be given little to no weight for
the reasons stated above. Further, to the
extent that an applicant’s claim is
supported only by the applicant’s
personal stereotypes about a country or
the alleged persecutor, that claim is
likely unmeritorious in the first
instance.
Further, the Departments disagree
with commenter assertions that the term
‘‘cultural stereotypes’’ is vague. As
alluded to above, the concept of
stereotyping is well-established in
American jurisprudence, and legal
questions regarding stereotypes,
especially stereotypes about foreign
countries, arise in a variety of settings.
See, e.g., United States v. Ramirez, 383
F.Supp.2d 1179, 1180 (D. Neb. 2005)
(collecting cases excluding testimony
based on cultural stereotypes of
different foreign countries); United
States v. Velasquez, No. CR 08–0730
WHA, 2011 WL 5573243, at *3 (N.D.
Cal. 2011) (not permitting a ‘‘cultural
defense’’ expert witness to testify ‘‘as
his opinions are based on cultural
stereotypes and generalizations that
have no probative value in this case’’
and permitting a ‘‘mental condition
expert’’ to testify on the condition that
he ‘‘refrain from offering testimony
based on stereotypes and/or
generalizations of Guatemalan, Mayan,
Mam or any other culture’’); see also
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Bahena-Cardenas, 411 F.3d at 1078
(‘‘Refusing to allow expert testimony
that would encourage or require jurors
to rely on cultural stereotypes is not an
abuse of discretion.’’). Moreover,
existing Department policies forbid the
use of generalized stereotypes in law
enforcement activities. See U.S. Dep’t of
Justice, Guidance for Federal Law
Enforcement Agencies Regarding the
Use of Race, Ethnicity, Gender, National
Origin, Religion, Sexual Orientation, or
Gender Identity 4 (2014) (‘‘Reliance
upon generalized stereotypes involving
the listed characteristics is absolutely
forbidden.’’), https://www.justice.gov/
sites/default/files/ag/pages/
attachments/2014/12/08/use-of-racepolicy.pdf. Thus, the Departments do
not believe that adjudicators will have
difficulty understanding the rule’s
reference to ‘‘cultural stereotypes.’’
The Departments also disagree with
commenter assertions that it will be
difficult to distinguish between
widespread, systemic laws or policies—
a form of accepted evidence to establish
a well-founded fear—and cultural
stereotypes. The Departments are
seeking to bar admissibility of nonprobative evidence of the kind
described in Matter of A–B–, broad
cultural stereotypes that have no place
in an impartial adjudication. Evidence
of systemic laws or policies is more
probative and concrete than
unsupported assertions of reductive
cultural stereotypes. For example, bald
statements that a country, as a whole,
has a particular cultural trait that causes
certain members of that country to
engage in persecution is evidence that
has no place in an adjudication. In
contrast, evidence that a country’s
leader has instituted a program to carry
out systematic persecution against
certain groups would be highly
probative evidence. General assertions
of cultural stereotypes are inherently
conclusory, reductive, and unhelpful to
the adjudicator or trier of fact—in
addition to being harmful in and of
themselves—and should not be
admissible.
In support of the claim that cultural
stereotypes are necessary for many
asylum claims, one commenter
presented three excerpts from a
Department of State Human Rights
Report on Guatemala. The Departments
appreciate the commenter’s examples,
but they do not reflect assertions of
pernicious cultural stereotypes
described in this rulemaking.
The first alleged stereotype was that
‘‘[a] culture of indifference to detainee
rights put the welfare of detainees at
risk.’’ However, the report goes on to
state: ‘‘On August 22, Ronald Estuardo
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Fuentes Cabrera was held in
confinement while awaiting trial for
personal injury charges after a car
accident. Fuentes died from internal
thoracic injury hours before his
scheduled trial and without having
received a medical exam, while his wife
and the passenger of the other vehicle
were taken for medical care.’’ U.S. Dep’t
of State, 2019 Country Reports on
Human Rights Practices: Guatemala 6
(2019), https://www.state.gov/reports/
2019-country-reports-on-human-rightspractices/guatemala. Further, the report
nowhere alleges that Guatemalans are
indifferent to detainee rights because of
some cultural trait peculiar to
Guatemalans. Thus, not only do these
statements not promote any particular
cultural stereotype about Guatemalans
based on race, religion, nationality,
gender or similar characteristic, but they
are supported by some facts. In short,
this statement reflects verifiable facts,
not a stereotype.
The second alleged stereotype was
that ‘‘[t]raditional and cultural practices,
in addition to discrimination and
institutional bias, . . . limited the
political participation of women and
members of indigenous groups.’’ Once
again, the report went on to detail the
low numbers of women and indigenous
people in the government to support its
conclusion. Id. at 12–13. Elsewhere in
the report, the State Department
included specific information about
sexual harassment: ‘‘No single law,
including laws against sexual violence,
deals directly with sexual harassment,
although several laws refer to it. Human
rights organizations reported sexual
harassment was widespread.’’ Id. at 17.
Similarly, the report contained specific
information about discrimination:
‘‘Although the law establishes the
principle of gender equality and
criminalizes discrimination, women,
and particularly indigenous women,
faced discrimination and were less
likely to hold management positions.’’
Id. The Departments do not see how this
broad statement suggests a stereotype
about an alleged persecutor for purposes
of supporting an asylum claim such that
it would fall within the ambit of the
rule. Moreover, it is, again, based on
evidence rather than a stereotype.
The final alleged stereotype contained
in the report was that ‘‘[i]ndigenous
communities were underrepresented in
national politics and remained largely
outside the political, economic, social,
and cultural mainstream.’’ This quote
was also followed by supporting
statements, including details regarding
indigenous leaders who were killed. Id.
at 20–21. Again, the Departments do not
see how this broad statement suggests a
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stereotype such that it would fall under
the rule. Further, it does not suggest that
indigenous individuals possess some
inherent trait—as opposed to larger
structural factors in the country—that
causes them to be underrepresented in
national politics. Thus, it is also based
on evidence rather than a stereotype.
Other commenters expressed concern
that this portion of the rule would place
a larger burden on adjudicators. The
Departments appreciate both the
comment and the underlying concern.
But, as noted above, adjudicators at both
Departments are experienced in
assessing evidence of little-to-no
probative value, and immigration judges
at DOJ are already experienced at ruling
on evidentiary objections as a matter of
course in immigration proceedings.
Thus, the Departments do not believe
that this portion of the rule will increase
any burden beyond what adjudicators
already face. The definition of ‘‘cultural
stereotypes’’ is straightforward; the
Departments have confidence that
adjudicators will be able to apply such
a definition in a timely and fair manner.
Nevertheless, in response to some of the
apparent confusion by some
commenters, the Departments have
modified the language in the final rule
to make it clearer. The change does not
reflect a substantive modification from
what was intended in the NPRM.
The Departments reject the
commenters’ assertions that this rule
was passed with bad intent. One aim of
this rule is to allow a more expeditious
adjudication of meritorious asylum
claims so that applicants do not have to
wait a lengthy amount of time before
receiving relief. The Departments agree
with the commenter who stated that
many asylum applications require at
least some discussion of the culture of
the country to which the applicant fears
return. However, the Departments
disagree with the commenter’s
assertions that some level of
stereotyping would be helpful to the
applicant’s claim. Stereotypes are
inherently unsupported generalizations.
Such conclusory statements are not
probative and can indeed be harmful, as
discussed above.
Further, the Departments disagree
with the commenter who asserted that
the rule would disadvantage the
applicant and violate due process. As
discussed above, an applicant’s inability
to submit nonprobative evidence neither
disadvantages the applicant nor violates
due process.
Finally, in response to commenters’
concerns about the perceived
asymmetry of the rule, the Departments
note that DHS is already bound by
policy to treat stakeholders, including
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aliens, in a non-discriminatory manner.
DHS therefore may not rely on
stereotype evidence to oppose an
asylum application. See U.S.
Immigration and Customs Enforcement,
Office of Diversity and Civil Rights,
https://www.ice.gov/leadership/dcr (‘‘It
is U.S. Immigration and Customs
Enforcement’s (ICE) policy to ensure
that employees, applicants for
employment and all stake holders are
treated in a non-discriminatory manner
in compliance with established laws,
regulations and Executive Orders.’’); cf.
Doe v. Att’y Gen., 956 F.3d 135, 155
n.10 (3d Cir. 2020) (‘‘The applicant’s
specific sexual practices are not relevant
to the claim for asylum or refugee status.
Therefore, asking questions about ‘what
he or she does in bed’ is never
appropriate.’’ (quoting USCIS, RAIO
Directorate—Officer Training: Guidance
for Adjudicating Lesbian, Gay, Bisexual,
Transgender, and Intersex (LGBTI)
Refugee and Asylum Claims 34 (Dec. 28,
2011))). Further, although Federal case
law is clear that stereotypes have no
place as a basis to deny asylum
applications, e.g., Doe, 956 F.3d at 155
n.10 (collecting cases), there is no
similar Federal case law regarding the
use of stereotypes as a basis for granting
asylum applications, and the issue of
the reliance on stereotypes to support an
asylum application has arisen only
recently, Matter of A–B–, 27 I&N Dec. at
336 n. 9. Consequently, as both
immigration judges and DHS are already
bound by policy, if not also law, not to
rely on stereotypes as a basis to oppose
or deny an asylum application, the rule
does not create any asymmetry
regarding evidence of stereotypes. To
the contrary, it corrects an existing
asymmetry to ensure that asylum
applications are not granted based on
inappropriate evidence of stereotypes.
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4.6. Internal Relocation
Comment: Commenters generally
expressed concern that the NPRM
would create a standard for the
analyzing the reasonableness of internal
relocation that almost no applicant for
asylum, withholding of removal, or
protection under the CAT regulations
would be able to meet.58
Commenters expressed several
concerns with the proposed list of
factors pertaining to the internal
58 The Departments note that consideration of
internal relocation in the context of an application
for withholding of removal under the CAT
regulations is different than the consideration of
internal relocation in the context of an application
for asylum and statutory withholding of removal.
Compare, e.g., 8 CFR 1208.13(b)(3), 1208.16(b)(3)
(assessing the reasonableness of internal relocation),
with 1208.16(c)(3)(ii) (assessing internal relocation
without reference to reasonableness).
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relocation analysis in proposed 8 CFR
208.13(b)(3) and 1208.13(b)(3). First,
commenters expressed concern that the
list places too much weight on the
identity and reach of the persecutor, and
that it lacks factors pertaining to the
asylum seeker and factors unrelated to
the asylum application (such as country
conditions).
Second, commenters asserted that the
proposed list inappropriately implies
that asylum seekers coming from large
countries or who are subjected to
persecution from a single source can
reasonably relocate internally. Some
commenters argued that persecution
does not end at the limits of political
jurisdictions and that persecutors could
have contacts throughout a country or
region. One commenter noted that
UNHCR guidance does not require an
asylum seeker to prove that his or her
entire home country is unsafe before
seeking asylum. Similarly, one
commenter expressed concern with the
proposed definition of the term
‘‘safety,’’ arguing that there has been no
judicial disagreement or confusion
pertaining to the current regulation and
that the proposed definition would limit
adjudicators’ ability to perform case-bycase analyses.
Third, commenters argued that the
proposed rule inappropriately focuses
on an asylum seeker’s ability to travel to
the United States. Commenters noted a
lack of jurisprudence discussing ability
to travel and alleged that since asylum
seekers had to first travel to the United
States to make a claim, the factor would
lead to the denial of most applications.
Fourth, commenters similarly
expressed concern that the proposed
rule would eliminate the reasonableness
analysis, thus forcing adjudicators to
ignore the overall context of an asylum
applicant’s plight. One commenter
argued that many cases have been sent
to the BIA from Federal courts so that
adjudicators could apply the current
reasonableness test to internal
relocation determinations.
Finally, commenters took issue with
the NPRM’s assertion that 8 CFR
208.13(b) and 1208.13(b) include
‘‘unhelpful’’ language that undermines
the need for the entire section.
Commenters noted that Federal courts
and the BIA have almost unanimously
endorsed the current language and have
not raised such concerns.
Commenters also expressed concern
with the proposed regulation’s change
to the burden of proof for asylum
seekers who establish they were
subjected to past persecution by a nongovernmental entity. Commenters
argued that, contrary to the NPRM’s
assertion, the current regulations are
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preferable. Specifically, increasing the
burden would be inappropriate,
commenters argued, because asylum
seekers would have already established
past persecution and that the
government is unable or unwilling to
protect them.
One commenter noted that the
proposed change to the burden of proof
is unnecessary because DHS could offer
information evidencing that internal
relocation is reasonable, and then the
applicant could respond to such
information.
One commenter argued that the
proposed change to the burden of proof
in the case of non-state actors unfairly
targets asylum seekers from Central
American countries and Mexico because
the types of individuals and groups that
would be considered non-state actors
under the proposed rule are commonly
cited persecutors in asylum cases
pertaining to these countries.
Response: To respond to commenters’
concerns that ‘‘almost no applicant . . .
would be able to meet’’ the revised
standard for reasonableness of internal
relocation, the Departments reject that
concern as speculative. The
Departments also reject a commenter’s
allegation that the factors in this section
were ‘‘justifications to deny applications
of bona fide asylum seekers.’’ These
factors are relevant and material to an
alien’s asylum eligibility, as discussed
in further detail below.
The Departments emphasize that the
rule requires adjudicators to consider
‘‘the totality of the relevant
circumstances’’ (as stated in 8 CFR
208.13(b)(3), 1208.13(b)(3) (asylum);
208.16(b)(3), 1208.16(b)(3) (statutory
withholding of removal)) when
determining the reasonableness of
internal relocation. The Departments
note that the proposed list identifies the
‘‘most relevant’’ circumstances for
consideration and provides a
streamlined presentation of those
factors. See 85 FR at 36282. The list of
factors in paragraph (b)(3) is not
exhaustive, however, so the regulatory
amendments do not foreclose
consideration of factors mentioned by
commenters, such as factors related to
the particular asylum seeker or factors
unrelated to the asylum application.
This approach is not a one-size-fits-all
analysis, as one commenter alleged.
Rather, the totality of the relevant
circumstances test allows adjudicators
to consider each case individually.
Relatedly, the Departments disagree
that the list of factors afford inordinate
weight to the identity and reach of the
persecutor or that adjudicators must
make determinations in a vacuum. As a
baseline matter, asylum is a form of
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discretionary relief for which an
applicant must demonstrate to the
Secretary or Attorney General that he or
she, inter alia, is a refugee as defined in
section 101(a)(42) of the Act, 8 U.S.C.
1101(a)(42), and warrants a favorable
exercise of discretion. INA 208(b)(1)(A),
8 U.S.C. 1158(b)(1)(A); CardozaFonseca, 480 U.S. at 428 n.5; 8 CFR
208.14(a), (b), 1208.14(a), (b). To
determine whether the applicant is a
refugee under section 101(a)(42) of the
Act, 8 U.S.C. 1101(a)(42), the
Departments assess the applicant’s ‘‘fear
of persecution,’’ which includes
whether the applicant could relocate to
avoid future persecution and whether it
would be reasonable to do so. See
Melkonian v. Ashcroft, 320 F.3d 1061,
1069 (9th Cir. 2003) (requiring a finding
that an alien could relocate to avoid
persecution and that it ‘‘must be
reasonable to expect them to do so’’
(citing Cardenas v. INS, 294 F.3d 1062,
1066 (9th Cir. 2002)); see also Singh v.
Ilchert, 63 F.3d 1501, 1511 (9th Cir.
1995) (permitting the Attorney General
to assess an alien’s ability to relocate to
a safer part of the country). The Act
does not require consideration of
internal relocation. See generally INA
208, 8 U.S.C. 1158. Rather, this analysis
was implemented by regulation to
address whether ‘‘an [asylum] applicant
may be able to avoid persecution in a
particular country by relocating to
another area of that country.’’ Asylum
Procedures, 65 FR 76121 (Dec. 6, 2000).
This rule would refine those
regulations, which agencies may do so
long as they give a reasoned explanation
for the change. See, e.g., Encino
Motorcars, LLC v. Navarro, 136 S. Ct.
2117, 2125 (2016) (‘‘Agencies are free to
change their existing policies as long as
they provide a reasoned explanation for
the change.’’ (citing Brand X, 545 U.S.
at 981–82)).
As the Departments explained in the
NPRM, the changes are necessary for
numerous reasons. First, the
Departments believe the ‘‘current
regulations regarding internal relocation
inadequately assess the relevant
considerations.’’ 85 FR at 36282.
Second, the Departments changed the
regulatory burdens of proof because the
Departments determined that the
burdens should generally align with
those ‘‘baseline assessments of whether
types of persecution generally occur
nationwide, while recognizing that
exceptions, such as persecution by local
governments or nationwide
organizations, might overcome these
presumptions.’’ Id. Third, the
Departments made amendments to
facilitate ‘‘ease of administering these
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provisions.’’ Id. The Departments
believe that the rulemaking will better
serve the needs of adjudicators who will
benefit from the addition of factors that
more adequately assess relevant
considerations for internal relocation
and the elimination of less relevant
factors. Despite commenters’
disagreements with the new list of
factors, the Departments believe that the
regulations must clearly and accurately
guide adjudicators in assessing the
reasonableness of internal relocation.
The Departments anticipate that the
new regulations will facilitate more
accurate and timely determinations,
given that adjudicators will spend most
of their time considering the most
relevant factors and less time
considering less relevant factors or
trying to determine whether certain
factors are relevant. This is especially
significant considering the
unprecedented pending caseload and
the need for efficient adjudication. See
EOIR, Adjudication Statistics: Total
Asylum Applications (Oct. 13, 2020),
https://www.justice.gov/eoir/page/file/
1106366/download. Given these
revisions to the regulations, adjudicators
are not left to make determinations ‘‘in
a vacuum,’’ as commenters suggested.
Accordingly, the Departments
determined that the following factors
were most relevant to an adjudicator’s
analysis: ‘‘the size of the country of
nationality or last habitual residence,
the geographic locus of the alleged
persecution, the size, reach, or
numerosity of the alleged persecutor,
and the applicant’s demonstrated ability
to relocate to the United States in order
to apply for asylum.’’ 8 CFR
208.13(b)(3), 1208.13(b)(3) (asylum);
208.16(b)(3), 1208.16(b)(3) (statutory
withholding of removal). The
Departments do not imply that this list
compels the conclusion that asylum
seekers who come from large countries
or who were subjected to persecution
from a single source can reasonably
relocate internally, as commenters
alleged. Instead, the Departments find
those factors ‘‘most relevant’’ for
adjudicators to consider in determining
whether internal relocation is
reasonable—not that those factors
absolutely indicate that internal
relocation is reasonable. 85 FR at 36282.
Furthermore, as noted above, the listed
relevant factors are not exhaustive and
adjudicators may consider other factors
that may be relevant to a particular case.
As commenters pointed out, the
Departments recognize that persecutors
may not be confined to political
jurisdictions, which is already reflected
in the factor assessing the ‘‘size, reach,
or numerosity of the alleged
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persecutor.’’ 8 CFR 208.13(b)(3),
1208.13(b)(3) (asylum); 208.16(b)(3),
1208.16(b)(3) (statutory withholding of
removal). Moreover, the Departments
disagree with a commenter’s allegation
that the rule redefines safety—neither
the proposed rule nor this final rule
redefines ‘‘safety.’’
The Departments disagree that the
factor assessing the alien’s ability to
travel to the United States is
inappropriate. First, this factor is
considered under the totality of the
circumstances; thus, this factor’s
presence will not automatically result in
one determination or another. The
Departments added this factor so that
adjudicators would fully consider
whether an alien had already traveled a
great distance to relocate to the United
States, and whether the alien’s ability to
do so reflected a similar ability to
relocate within the country from which
the alien is seeking protection. Second,
in contrast to commenters, the
Departments believe that a lack of
jurisprudence on this factor counsels in
favor of including it in the regulation.
Nor do the Departments find the lack of
directly relevant jurisprudence
surprising. Because the current
regulations do not highlight an alien’s
ability to travel to the United States as
one of the most relevant factors, courts
would have had little reason to consider
this factor unless a party raised it. See,
e.g., Garcia-Cruz v. Sessions, 858 F.3d 1,
8–9 (1st Cir. 2017) (remanding the case
to the BIA to consider the
reasonableness factors specifically
provided in the regulations); Khattak,
704 F.3d at 203–04 (same).
Nevertheless, case law has considered
travel-related factors such as an alien’s
return trips or previous relocations. See,
e.g., Ullah v. Barr, No. 18–28912020 WL
6265858, at *1–2 (2d Cir. Oct. 26, 2020)
(holding that country’s lack of
restriction on internal movement or
relocation and alien’s ability to work
and move around the country without
incident supported the BIA’s finding
that the alien could safely relocate to
avoid future persecution); Gambashidze
v. Ashcroft, 381 F.3d 187, 193 (3d Cir.
2004) (considering, in part, that the
alien and his family relocated to a city
that ‘‘is not a great distance’’ from the
city where they faced persecution before
the alien relocated again to the United
States); Belayneh v. I.N.S., 213 F.3d 488,
491 (9th Cir. 2000) (holding that the
alien had not established a reasonable
fear of future persecution in part
because she had ‘‘traveled to the United
States and returned to Ethiopia three
times without incident’’). These cases
provide examples in which courts
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recognized that the ability and
willingness to travel and the distance
traveled are all relevant to the
reasonableness inquiry because they
may indicate the extent to which an
alien is physically or financially able to
travel. In that same vein, the
Departments have determined that an
alien’s ability to travel to the United
States is clearly relevant and
appropriate to the reasonableness
inquiry.
The rule does not eliminate the
reasonableness analysis, as commenters
alleged. First, the heading of each
regulatory section is ‘‘Reasonableness of
internal relocation.’’ 8 CFR 208.13(b)(3),
1208.13(b)(3) (asylum); 208.16(b)(3),
1208.16(b)(3) (statutory withholding of
removal). The heading indicates the
content of the section. What follows is
a list of factors and the requisite
burdens of proof to aid an adjudicator’s
assessment of the reasonableness of
internal relocation. For example, the
regulations state, in the case of a
governmental persecutor, ‘‘it shall be
presumed that internal relocation would
not be reasonable, unless the
Department of Homeland Security
establishes by a preponderance of the
evidence that, under all the
circumstances, it would be reasonable
for the applicant to relocate’’ and, in the
case of a non-governmental persecutor,
‘‘there shall be a presumption that
internal relocation would be reasonable
unless the applicant establishes, by a
preponderance of the evidence, that it
would be unreasonable to relocate.’’ 8
CFR 208.13(b)(3)(ii), (b)(3)(iii),
1208.13(b)(3)(ii), (b)(3)(iii) (emphases
added). The reasonableness inquiry
continues to be an active prong of the
internal relocation assessment. In
addition, under the new regulations,
adjudicators must not disregard other
factors, as commenters alleged; rather,
the regulations instruct adjudicators to
consider ‘‘the totality of the relevant
circumstances.’’ 8 CFR 208.13(b)(3),
1208.13(b)(3). Application of the
previous regulations by courts and the
BIA are irrelevant and unpersuasive as
evidence that the rules cannot be
changed. As previously explained, it is
properly within the Departments’
authority to revise their regulations. See,
e.g., Encino Motorcars, LCC, 136 S. Ct.
at 2125.
The Departments maintain that the
language in the previous regulations
was unhelpful. 85 FR at 36282.
Equivocal phrases in the prior
regulation—that factors ‘‘may, or may
not, be relevant’’—are almost
paradigmatically unhelpful. The
Departments believe the revised
regulations, including review under the
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totality of the circumstances and the
nonexhaustive list of factors provided,
will continue to allow adjudicators to
assess internal relocation on a case-bycase basis.
Although commenters alleged that
Federal courts and the BIA have ‘‘nearly
unanimously endorsed’’ the previous
regulations, the cases referenced in
support of their allegations merely
apply the previous regulations. Judicial
application of regulations cannot be
construed as ‘‘endorsing’’ the
regulations except to the extent that a
court finds the regulations to be a
reasonable interpretation of the statute.
See Chevron, 467 U.S. at 844 (‘‘[A] court
may not substitute its own construction
of a statutory provision for a reasonable
interpretation made by the
administrator of an agency.’’).
Finally, the Departments disagree that
changing the burden of proof is
inappropriate. As explained in the
NPRM, the Departments believe the
realigned burden of proof follows the
‘‘baseline assessments of whether types
of persecution generally occur
nationwide, while recognizing that
exceptions, such as persecution by local
governments or nationwide
organizations, might overcome these
presumptions.’’ 85 FR at 36282.
Contrary to the commenters’ assertion,
when an adjudicator is determining
reasonableness of internal relocation, an
applicant may not have already
established past persecution or that the
government was unable or unwilling to
protect the alien. For example, an
applicant may be claiming a fear of
future persecution pursuant to 8 CFR
208.13(b)(2), 1208.13(b)(2). Although
showing past persecution raised a
rebuttable presumption that internal
relocation would be unreasonable under
the prior regulation, the Departments
have concluded, upon fresh review, that
applying a blanket presumption
independent of the identity of the
persecutor is inconsistent with
assessments of how widespread
persecution is likely to be based on the
identity of the alleged persecutor.
Whereas government or governmentsponsored actors would generally be
expected to have nationwide influence,
a private individual or organization
would not ordinarily have such reach.
Placing the burden on the government
to show that the alien’s fear of future
persecution is not well-founded where
he was previously persecuted by a nongovernmental actor therefore inverts the
usual burden of proof—which lies with
the applicant—without good reason. See
85 FR at 36282 (explaining this
rationale).
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In the final rule, DHS still bears the
burden to demonstrate that the
applicant could relocate to avoid future
persecution and that it would be
reasonable for the applicant to do so in
the case of a governmental persecutor (8
CFR 208.13(b)(3)(ii), 1208.13(b)(3)(ii)
(asylum); 208.16(b)(3)(ii),
1208.16(b)(3)(ii) (statutory withholding
of removal)), and the alien bears the
burden to demonstrate that it would be
reasonable to relocate in the case of a
non-governmental persecutor (8 CFR
208.13(b)(3)(iii), 1208.13(b)(3)(iii)).
These burdens reflect the Departments’
belief that aliens who claim past
persecution by non-state actors should
bear the burden to rebut the
presumption that internal relocation is
reasonable.
The different burdens of proof do not
unfairly target or discriminate against
asylum seekers from Central American
countries and Mexico, as commenters
alleged. The new burden of proof
applies to all asylum seekers, regardless
of the country of origin. The
Departments note that, contrary to the
commenters’ allegations, the examples
of private-actor persecutors provided by
the regulations exist in many countries,
not just Central American countries and
Mexico. See, e.g., Mashiri v. Ashcroft,
383 F.3d 1112, 1115–16 (9th Cir. 2004)
(detailing facts in which a German
citizen of Afghan descent was
persecuted by non-state actors in
Germany, some of whom were part of a
Neo-Nazi mob); Doe v. Att’y Gen. of the
U.S., 956 F.3d 135, 139–40 (3d Cir.
2020) (detailing facts in which a
Ghanaian citizen was persecuted by
family members and neighbors in
Ghana).
4.7. Factors for Consideration in
Discretionary Determinations
Comment: Commenters generally
expressed concern that the Departments
did not provide a sufficient justification
for the proposed changes and did not
consider the practical consequence of
the proposed rule. Commenters
similarly expressed general concerns
that the proposed changes are in conflict
with section 208(a)(1) of the Act, 8
U.S.C. 1158(a)(1), are contrary to case
precedent, are immoral, and would
negatively impact children seeking
asylum. The true purpose of the rule,
some commenters asserted, is to lead to
the denial of virtually all asylum
applications.
Commenters expressed concern that
the Departments seek to depart from the
BIA’s approach in Matter of Pula, 19
I&N Dec. 467 (BIA 1987). One
commenter stated that it was
inappropriate to use language from the
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case to justify the proposed new factors
while also superseding the case’s central
holding. Commenters stated that Matter
of Pula instructs that danger of
persecution should outweigh all but the
most egregious factors. Commenters
similarly stated that Matter of Pula
requires adjudicators to consider the
totality of the circumstances and to not
give any particular factor such
significant weight that it would
outweigh all the others.
Citing East Bay Sanctuary Covenant
v. Barr, 964 F.3d 832 (9th Cir. 2020), one
commenter expressed concern that the
proposed rule conflicts with recent
Federal court precedent that the
creation of ‘‘eligibility bars’’ to asylum
is constrained by statute. The
commenter asserted that as some of the
discretionary factors would require
denial of applications as a matter of
discretion, they are, in actuality,
unlawful eligibility bars.
Commenters stated that the proposed
negative factors that adjudicators would
be required to consider are not related
to the merits of an asylum claim and are
unavoidable in many cases. As a result,
commenters argued, adjudicators would
be required to deny most asylum cases
as a matter of discretion. One
commenter asserted that the
Departments did not consider
alternative policy options, and one
commenter stated that the rule should
be amended to require adjudicators to
consider positive factors in their
discretionary determinations.
Commenters argued that inappropriately
cabining discretion in this way is in
conflict with making asylum
determinations on a case-by-case basis.
Commenters expressed concern that
the only way for applicants to overcome
the presence of nine of the proposed
adverse factors would be to show
‘‘extraordinary circumstances’’ or
‘‘exceptional and extremely unusual
hardship.’’ One commenter stated that a
demonstration of past persecution or a
well-founded fear of future persecution
is ‘‘per se’’ exceptional and extremely
unusual hardship. Therefore, the
commenter argued that by meeting the
legal standard for asylum, applicants
necessarily would meet the proposed
new standard of exceptional and
extremely unusual hardship. The
commenter similarly stated that past
persecution is ‘‘exceptional hardship.’’
Another commenter stated that
application of the ‘‘exceptional and
extremely unusual hardship’’ standard
in exercising discretion for asylum
applications contravenes the INA
because Congress did not expressly
provide for that heightened standard.
Instead, the commenter noted that in
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section 208(b)(1)(A) of the Act, 8 U.S.C.
1158(b)(1)(A), Congress stated that the
Attorney General ‘‘may’’ grant asylum.
The commenter asserted that if Congress
intended the use of a heightened
standard, it would have expressly done
so, as it did in section 240A(b)(1)(D) of
the Act, 8 U.S.C. 1229b(b)(1)(D), for
non-LPR cancellation of removal. The
commenter cited the Supreme Court’s
decision in Cardoza-Fonseca for
support. See 480 U.S. at 432 (‘‘[W]here
Congress includes particular language in
one section of a statute but omits it in
another section of the same Act, it is
generally presumed that Congress acts
intentionally and purposely in the
disparate inclusion or exclusion.’’).
Accordingly, consistent with Matter of
Marin, 16 I&N Dec. 581, 584–85 (BIA
1978), the commenter asserted that the
totality of the circumstances approach
should be applied in the exercise of
discretion for asylum applications.
Commenters disagreed with the
Departments’ position that creating a list
of proposed factors would save
adjudicators time. Specifically,
commenters noted that since a finding
of ‘‘extraordinary circumstances’’ or an
exceptional and extremely unusual
hardship would require a separate
hearing, the proposed factors would not
save time.
Response: The Departments disagree
that they failed to provide sufficient
justification for this proposed change in
the NPRM, evidenced by the three-page
discussion of this section alone. See 85
FR at 36282–85. Nevertheless, the
Departments provide further
explanation in this final rule.
Asylum is a discretionary benefit. INA
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A)
(providing that the Departments ‘‘may
grant asylum to an alien who has
applied for asylum in accordance with
the requirements and procedures
established by the Secretary of
Homeland Security or the Attorney
General under this section’’ (emphasis
added)); see also Cardoza-Fonseca, 480
U.S. at 443 (‘‘[A]n alien who satisfies
the applicable standard under § 208(a)
does not have a right to remain in the
United States; he or she is simply
eligible for asylum, if the Attorney
General, in his discretion, chooses to
grant it.’’ (emphases in original)).
Accordingly, ‘‘with respect to any form
of relief that is granted in the exercise
of discretion,’’ an alien must satisfy the
eligibility requirements for asylum and
establish that the application ‘‘merits a
favorable exercise of discretion.’’ INA
240(c)(4)(A),8 U.S.C. 1229a(c)(4)(A); see
also Matter of A–B–, 27 I&N Dec. at 345
n.12 (explaining that the ‘‘favorable
exercise of discretion is a discrete
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80341
requirement for the granting of asylum
and should not be presumed or glossed
over solely because an applicant
otherwise meets the burden of proof for
asylum eligibility under the INA’’ and
providing relevant discretionary factors
to consider in the exercise of such
discretion), abrogated on other grounds,
Grace II, 965 F.3d at 897–900.
In its broadest sense, legal discretion
is defined as the ‘‘exercise of judgment
by a judge or court based on what is fair
under the circumstances and guided by
the rules and principles of law; a court’s
power to act or not act when a litigant
is not entitled to demand the act as a
matter of right.’’ Discretion, Black’s Law
Dictionary (11th ed. 2019); see also
Discretion, Merriam-Webster (last
updated July 6, 2020), https://
www.merriam-webster.com/dictionary/
discretion (defining ‘‘discretion’’ as the
‘‘power of free decision or latitude of
choice within certain legal bounds’’).
While the statute and case law are clear
that a grant of asylum is subject to
discretion, see INA 208(b)(1)(A), 8
U.S.C. 1158(b)(1)(A); INS v. Stevic, 467
U.S. 407, 423 n.18 (1984), the statute
and regulations are silent as to guidance
that may direct such exercise of
discretion.
The BIA has explained that the
exercise of discretion requires
consideration of the relevant factors in
the totality of the circumstances, based
on the facts offered by the alien to
support the application in each case.
See Matter of Pula, 19 I&N Dec. at 473
(noting that ‘‘a number of factors . . .
should be balanced in exercising
discretion’’). Further, the BIA has
provided factors that may be relevant to
the inquiry, including humanitarian
considerations, such as the alien’s age or
health; any countries through which the
alien passed en route to the United
States and those countries’ available
refugee procedures; personal ties to the
United States; and the alien’s use of
fraudulent documents. See id. at 473–74
(‘‘Each of the factors . . . will not, of
course, be found in every case. . . . In
the absence of any adverse factors,
however, asylum should be granted in
the exercise of discretion.’’).
In building upon the BIA’s guidance
and evaluating all policy options, the
Departments have determined that it is
appropriate to codify discretionary
factors for adjudicators to consider. 85
FR at 36283. The statute and regulations
currently contain discretionary factors
for consideration in regard to other
forms of relief. See, e.g., 8 CFR 212.7(d),
1212.7(d) (authorizing the Attorney
General to consent to an application for
visa, admission to the United States, or
adjustment of status, for certain criminal
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aliens when declining to favorably
exercise discretion ‘‘would result in
exceptional and extremely unusual
hardship’’); see also Matter of Y–L–, 23
I&N Dec. 270, 276–77 (A.G. 2002)
(providing various factors that may
indicate extraordinary and compelling
circumstances that the Attorney General
may consider to determine whether
certain aggravated felonies are
‘‘particularly serious crimes’’ under
section 241(b)(3)(B) of the INA for
purposes of withholding of removal);
Matter of Jean, 23 I&N Dec. 373, 383–
84 (A.G. 2002) (explaining that
discretionary relief requires a balancing
of the equities, including, if any,
extraordinary circumstances, the gravity
of an alien’s underlying criminal
offense, or unusual hardships). The
Departments have similar authority to
promulgate discretionary factors for
asylum relief. INA 208(b)(1)(A), 8 U.S.C.
1158(b)(1)(A); see 85 FR at 36283.
Contrary to commenters’ concerns
that the proposed rule effectively creates
bars (or ‘‘eligibility bars’’) to asylum and
inappropriately cabins adjudicators’
discretion, the Departments reiterate
that this rulemaking identifies various
factors for consideration in making a
discretionary determination on an
asylum application. These factors are
not bars; accordingly, concerns that the
rule would result in the denial of all
asylum claims are misguided. Rather, in
regard to the three significantly adverse
factors, the proposed rule clearly stated
that ‘‘the adjudicator should also
consider any other relevant facts and
circumstances to determine whether the
applicant merits asylum as a matter of
discretion.’’ Id. (emphasis added). And
in regard to the nine adverse factors, the
proposed rule stated that ‘‘the
adjudicator may nevertheless favorably
exercise discretion in extraordinary
circumstances . . . or if the alien
demonstrates, by clear and convincing
evidence, that the denial of asylum
would result in exceptional and
extremely unusual hardship to the
alien.’’ Id. (emphasis added). Thus, a
finding that any of the factors applies
does not foreclose consideration of other
relevant facts and circumstances, which
a true asylum ‘‘bar’’ would require.
Commenters asserted that this rule is
inconsistent with the BIA’s approach in
Matter of Pula and subsequent related
case law in which past persecution or a
strong likelihood of future persecution
‘‘should generally outweigh all but the
most egregious of adverse factors.’’ 19
I&N Dec. at 474. The Departments
clearly stated in the NPRM that the rule
‘‘supersede[d]’’ the BIA’s approach in
Matter of Pula, 85 FR at 36285, which
is squarely within their authority.
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‘‘Agencies are free to change their
existing policies as long as they provide
a reasoned explanation for the change.’’
Encino Motorcars, LLC, 136 S. Ct. at
2125 (citing Brand X, 545 U.S. at 981–
82). The Court has further explained
what a ‘‘reasoned explanation’’ should
entail: Awareness in its decision making
process that it is changing positions;
demonstration that the new policy is
permissible under the implementing
statute, and not just the APA; statement
and belief that the new policy is better;
and provision of ‘‘good reasons’’ for the
new policy. See Organized Village of
Kake v. U.S. Dep’t of Agric., 795 F.3d
956, 966 (9th Cir. 2015) (en banc)
(summarizing FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515–16
(2009)). In the NPRM, the Departments
provided such information: awareness
of changed position, 85 FR at 36285;
demonstration that the policy is
permissible under the INA and APA, see
generally 85 FR at 36282–85; statement
that the new policy is better, 85 FR at
36283; and good reasons for the new
policy, 85 FR at 36283, 36285.
Accordingly, the Departments properly
and permissibly changed their policy
from Matter of Pula.
Significantly, the rule does not
preclude consideration of positive
factors. Further, the NPRM instructed
adjudicators to ‘‘consider any other
relevant facts and circumstances to
determine whether the applicant merits
asylum as a matter of discretion.’’ 85 FR
at 36283. Accordingly, the rule allows
for consideration of positive equities as
part of an adjudicator’s discretionary
analysis. The Departments have
determined that the factors provided in
the NPRM are appropriate and relevant
to such analysis.
Moreover, the rule does not
‘‘categorically limit’’ adjudicators’
discretion or make certain outcomes
‘‘practically mandatory’’; rather, the rule
guides the exercise of discretion by
providing various factors for
consideration. The NPRM clearly stated,
and the Departments reiterate, that the
proposed factors were ‘‘nonexhaustive.’’
85 FR at 36283. Further, the NPRM
stated that ‘‘any other relevant facts and
circumstances’’ should be considered
and provided exceptions to one of the
significantly adverse factors. See id.
Accordingly, although the Departments
proposed significantly adverse and
adverse factors, an adjudicator must
continue to consider positive factors in
the discretionary analysis.
The Departments disagree with
commenters that past or future
persecution should be considered ‘‘per
se’’ exceptional and extremely unusual
hardship. Rather, the Departments have
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determined that the approach described
in the NPRM—providing criteria for an
adjudicator’s consideration in the
exercise of discretion, in addition to
consideration of whether extraordinary
circumstances or exceptional and
extremely unusual hardship exists—is
appropriate. Moreover, the Departments
disagree that consideration of
extraordinary circumstances or
exceptional and extremely unusual
hardship conflicts with the Act.
Congress authorized the Attorney
General to make discretionary asylum
determinations, INA 208(b)(1)(A), 8
U.S.C. 1158(b)(1)(A), and that authority
permits him to deny asylum even if an
applicant can establish past or future
persecution.
The Departments ‘‘believe that the
inclusion of the proposed factors in the
rule will better ensure that immigration
judges and asylum officers properly
consider, in all cases, whether
applicants for asylum merit the relief as
a matter of discretion, even if the
applicant has otherwise demonstrated
eligibility for asylum.’’ 85 FR at 36283,
36285. In this way, the list of factors to
consider, including consideration of
extraordinary circumstances or
exceptional and extremely unusual
hardship, would take place in one
streamlined adjudication. Accordingly,
the Departments disagree with
commenters that the list of factors
would not save time, is ‘‘unworkable’’
or ‘‘cumbersome,’’ or limits adjudicatory
discretion.
The Departments also disagree that
this section of the rule is immoral or
would negatively impact children
seeking asylum. Adjudicators consider
these factors, as relevant, to all asylum
cases. As it may relate specifically to
children, if extraordinary circumstances
exist or exceptional and extremely
unusual hardships would arise if the
application was denied, the adjudicator
should consider such circumstances.
See Section II.C.1.3 of this preamble for
further discussion on this point.
4.7.1. Unlawful Entry or Unlawful
Attempted Entry Into the United States
Comment: Commenters expressed
general concern that the proposed
regulation would improperly lead
adjudicators to deny ‘‘virtually all’’
applications for asylum seekers who
enter the United States between ports of
entry. One commenter stated that the
‘‘immediate flight’’ exception is too
narrow.
Commenters averred that the
proposed regulation is contrary to
section 208(a)(1) of the Act, 8 U.S.C.
1158(a)(1), which instructs that
individuals are eligible to apply for
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asylum regardless of where they enter
the United States.
Commenters expressed concern that
the proposed regulation is inconsistent
with case law. Commenters argued that
contrary to the NPRM’s argument,
Matter of Pula, 19 I&N Dec. Dec. 467
(BIA 1987), does not support the
Departments’ position that an unlawful
entry should be a significant adverse
factor. Instead, one commenter asserted
that in Matter of Pula the BIA reversed
Matter of Salim, 18 I&N Dec. 311 (BIA
1982), to the extent that Matter of Salim
suggested that ‘‘the most unusual
showing of countervailing equities’’ was
needed to overcome a ‘‘circumvention
of orderly procedures.’’ Citing, for
example, Zuh v. Mukasey, 547 F.3d 504,
511 n.4 (4th Cir. 2008), commenters
similarly argued that Federal courts of
appeals have given the manner of an
asylum seeker’s entry into the United
States very little weight (and sometimes
no weight) in discretionary
determinations and have noted that
place of entry reveals little about the
merits of the case. And, citing Huang v.
INS, 436 F.3d 89, 100 (2d Cir. 2006), one
commenter noted that the Second
Circuit Court of Appeals reasoned that
if an illegal manner of entry were
afforded significant weight, then
virtually no asylum applicant would
prevail.
Commenters expressed concern that
codification of unlawful entry as a
significantly adverse factor in
discretionary determinations contradicts
recent Federal court decisions from the
Ninth Circuit Court of Appeals and the
District Court for the District of
Columbia that struck down November
2018 regulations by the Departments.
Commenters argued that the NPRM is
similar to a 2018 Interim Final Rule
(IFR) that, when coupled with a
presidential proclamation issued the
same day, made any individual who
arrived between designated ports of
entry ineligible for asylum. Commenters
noted that the Ninth Circuit Court of
Appeals found that the 2018 IFR was
arbitrary and capricious and that it
infringed upon treaty commitments (E.
Bay Sanctuary Covenant v. Trump, 950
F.3d 1242 (9th Cir. 2020)). Commenters
noted that the District Court for the
District of Columbia held that the bar
was inconsistent with the INA and
congressional intent (O.A. v. Trump,
404 F. Supp. 3d 109, 147 (D.D.C. 2019)).
Commenters expressed concern that the
present rulemaking is intended to
circumvent the courts’ decisions on the
2018 IFR.
Commenters disagreed with the
NPRM’s reasoning that the proposed
rule is necessary to address the strained
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resources used to adjudicate the
growing number of asylum cases. One
commenter asserted that ‘‘expediency’’
is not an appropriate consideration in
determining the relief available to
asylum seekers. The commenter also
noted that in Gulla v. Gonzales, 498
F.3d 911, 919 n.2 (9th Cir. 2007), the
Ninth Circuit Court of Appeals held that
‘‘hypothetical numbers’’ of potential
asylum seekers is not a basis to deny
relief to an applicant who has
demonstrated a valid claim. The
commenter similarly argued that
limiting asylum to those who traveled
from contiguous countries and those
who flew directly to the United States
is in conflict with case precedent and
obligations under the 1967 Refugee
Protocol.
Commenters expressed concern with
the impact of the proposed rule in light
of the CBP’s practice of ‘‘metering.’’
Commenters asserted that, under the
practice, applicants are required to wait
for months in ‘‘dangerous conditions’’
in Mexico before they are able to apply
for asylum. Commenters stated that
some applicants are motivated to enter
the United States between ports of entry
in order to avoid the dangerous
conditions.
One commenter expressed concern
that codifying unlawful entry as a
significant adverse discretionary factor
would particularly burden children. The
commenter argued that children often
arrive with adults (such as parents,
smugglers, or traffickers) who choose
the manner and place of entry. The
commenter argued further that children
who travel to the United States on their
own may not comprehend the
importance of arriving at a port of entry.
Response: The Departments disagree
that this factor will result in the denial
of ‘‘virtually all’’ asylum applications.
This factor is but one factor that an
adjudicator must consider in light of all
other relevant factors and
circumstances. 85 FR at 36283.
Likewise, the Departments disagree that
the exception for aliens who enter or
attempt entry ‘‘made in immediate
flight,’’ 8 CFR 208.13(d)(1)(i),
1208.13(d)(1)(i), is too narrow. The
Departments believe this exception
properly balances the need for orderly
processing of aliens with urgent
humanitarian considerations.
As described throughout this rule,
asylum is a discretionary benefit. INA
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). The
Departments have a legitimate interest
in maintaining order and security on
U.S. borders through the administration
of lawful admissions procedures and, as
stated in the proposed rule, the
Departments remain concerned by the
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immense strain on resources needed to
process aliens who illegally enter the
United States. 85 FR at 36283 (citing
Aliens Subject to a Bar on Entry Under
Certain Presidential Proclamations;
Procedures for Protection Claims, 83 FR
55934 (Nov. 9, 2018)). Aliens who
unlawfully enter the United States
circumvent the requirement that all
applicants for admission be inspected,
see INA 235(a)(3), 8 U.S.C. 1225(a)(3);
break U.S. law, see INA 212(a)(6)(A), 8
U.S.C. 1182(a)(6)(A); INA 275(a)(1), 8
U.S.C. 1325(a)(1); and contribute to the
ever-increasing strain on the
government’s limited resources. Given
such limited resources, and subject to a
full discretionary analysis of all relevant
factors as described in the NPRM, the
Departments have determined that
failure to lawfully apply for admission,
in other words, unlawful entry or
attempted unlawful entry, should
generally be considered a significant
adverse factor in an asylum
adjudication.
The Departments disagree with
commenters’ allegations that DHS
procedures at the border have ‘‘virtually
shut down the processing of asylum
applications’’ and prevented asylum
seekers from lawfully presenting
themselves at the border. At various
times since 2016, CBP has engaged in
metering to regulate the flow of aliens
present at land ports of entry on the
southern border in order to ‘‘address
safety and health hazards that resulted
from overcrowding at ports of entry.’’
See DHS, OIG 18–84, Special Review—
Initial Observations Regarding Family
Separation Issues Under the Zero
Tolerance Policy 5–6 & n.11 (Sept. 27,
2018), https://www.oig.dhs.gov/sites/
default/files/assets/2018-10/OIG-18-84Sep18.pdf. Individuals who are subject
to metering are not prevented from
presenting at the port of entry.59
Claims that refugees who are unable
to get a visa will have to overcome the
significant negative discretionary factor
are unfounded. The rule does not
require any alien to obtain a visa in
order to apply for asylum. Under the
law, ‘‘[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 and
including an alien who is brought to the
United States after having been
interdicted in international or United
States waters) irrespective of such
alien’s status, may apply for asylum,’’
59 The permissibility of this practice is the subject
of ongoing litigation, and the Departments decline
to further comment on the legality or propriety of
the practice in this rulemaking. See Al Otro Lado,
Inc. v. McAleenan, No. 17–cv–02366–BAS–KSC,
2020 WL 4015669 (S.D. Cal. July 16, 2020).
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INA 208(a)(1), 8 U.S.C. 1158(a)(1), and
nothing in the rule changes that
statutory framework. Moreover, nothing
in the rule changes the longstanding
principle that the Secretary and the
Attorney General may deny asylum as a
matter of discretion, even to aliens who
otherwise meet the statutory definition
of a refugee. See INS v. CardozaFonseca, 480 U.S. at 428 n.5, 444–45
(‘‘It is important to note that the
Attorney General is not required to grant
asylum to everyone who meets the
definition of refugee. Instead, a finding
that an alien is a refugee does no more
than establish that ‘the alien may be
granted asylum in the discretion of the
Attorney General.’. . . [Congress] chose
to authorize the Attorney General to
determine which, if any, eligible
refugees should be denied asylum.’’
(emphasis in original) (citation
omitted)). Rather, consistent with the
relevant authority, INA 208(b)(1)(A), 8
U.S.C. 1158(b)(1)(A), the Secretary and
Attorney General are simply providing
additional clarity and guidance to
adjudicators to aid their consideration
of asylum claims as a matter of
discretion.
The Departments disagree with
commenters’ assertion that Matter of
Pula, 19 I&N Dec. 467 (BIA 1987), is
‘‘fundamentally incompatible’’ with this
rule. As a threshold matter, the
Departments reiterate that the rule
incorporates as a discretionary factor
consideration of whether an alien
unlawfully entered or attempted to
unlawfully enter the United States. 85
FR at 36283. Matter of Pula similarly
allows for consideration of this factor as
part of the discretionary analysis:
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Yet while we find that an alien’s manner
of entry or attempted entry is a proper and
relevant discretionary factor to consider in
adjudicating asylum applications, we agree
with the applicant that Matter of Salim,
supra, places too much emphasis on the
circumvention of orderly refugee procedures.
This circumvention can be a serious adverse
factor, but it should not be considered in
such a way that the practical effect is to deny
relief in virtually all cases. This factor is only
one of a number of factors which should be
balanced in exercising discretion, and the
weight accorded to this factor may vary
depending on the facts of a particular case.
19 I&N Dec. at 473 (emphases added).
The rule is consistent with Matter of
Pula inasmuch as that factor must not be
considered in a way that practically
denies relief in all cases. The rule
clearly states that the factor is one of
many discretionary factors for an
adjudicator to consider, consistent with
Matter of Pula’s holding that the totality
of the circumstances should be
examined. 85 FR at 36283 (‘‘If one or
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more of these factors applies to the
applicant’s case, the adjudicator would
consider such factors to be significantly
adverse for purposes of the
discretionary determination, though the
adjudicator should also consider any
other relevant facts and circumstances
to determine whether the applicant
merits asylum as a matter of
discretion.’’); 8 CFR 208.13(d), (d)(2)(ii),
1208.13(d), (d)(2)(ii). Like Matter of
Pula, the rule would not treat this factor
as an absolute bar. See 8 CFR 1208.13(d)
(‘‘Factors that fall short of grounds of
mandatory denial of an asylum
application may constitute discretionary
considerations.’’).
Similarly, the Departments disagree
with commenters’ assertions that this
rule contravenes section 208(a)(1) of the
Act, 8 U.S.C. 1158(a)(1). As explained,
this rule does not bar individuals from
applying for asylum. The rule merely
articulates that unlawful entry or
attempted unlawful entry are significant
adverse factors when considering
whether to grant asylum as a matter of
discretion.
Commenters cited various Federal
circuit court treatment that allegedly
forecloses consideration of this factor as
significantly adverse. Cases cited by the
commenters, however, prohibit the use
of this factor as a bar to asylum,60 and
the Departments reiterate that the
articulated discretionary factors do not
equate to asylum bars. Commenters also
selectively quoted from cases for
support, thus mischaracterizing several
cases as foreclosing provisions of the
NPRM.61 Insofar as commenters cited to
Matter of Pula’s approach that considers
persecution or strong likelihood of
future persecution as factors that
60 Commenters cited Gulla, 498 F.3d at 917,
which states that ‘‘it would be anomalous for an
asylum seeker’s means of entry to render him
ineligible for a favorable exercise of discretion,’’ id.
(emphasis added), and Huang, 436 F.3d at 100,
which contemplates whether ‘‘illegal manner of
flight and entry were enough independently to
support a denial of asylum,’’ id. (emphasis added).
The Departments understand those cases to state
that manner of entry cannot, on its own, bar an
applicant from asylum relief. Further, the
Departments note that in regards to manner of
entry, Gulla found that the petitioner did not
unlawfully enter or attempt to enter the United
States, 498 F.3d at 919; thus, that case is not
particularly relevant for purposes of the factor at
issue in 8 CFR 208.13(d)(1)(i), 1208.13(d)(1)(i).
61 For example, commenters stated that Federal
circuit courts have given ‘‘manner of entry’’ ‘‘little
to no weight’’ in discretionary determinations.
Commenters quoted from Zuh v. Mukasey, 547 F.3d
504 (4th Cir. 2008). In context, however, the court
first referenced Matter of Pula’s totality of the
circumstances analysis and then stated that the
‘‘use of fraudulent documents to escape imminent
capture or further persecution’’ should be afforded
‘‘little to no weight.’’ Id. at 511 n.4 (emphasis
added). Zuh does not stand for the proposition that
this factor should never be afforded greater weight.
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‘‘generally outweigh all but the most
egregious adverse factors,’’ 19 I&N Dec.
at 474, the Departments reiterate that
the rule supersedes Matter of Pula in
that regard. See 85 FR at 36285. Given
that non-discretionary statutory
withholding of removal and CAT
protection are available, the
Departments believe the rule’s revised
approach that considers the enumerated
discretionary factors under the totality
of the circumstances is appropriate in
all cases, including those in which the
applicant has otherwise demonstrated
asylum eligibility. See id.
Commenters also contend that this
rule contradicts Federal precedents
striking down the Departments’
previous rule, Aliens Subject to a Bar on
Entry Under Certain Presidential
Proclamations; Procedures for
Protection Claims, 83 FR 55934 (Nov. 9,
2018).62 Unlike the rule struck down in
those cases, however, consideration of
unlawful entry or attempted unlawful
entry as a significantly adverse factor in
a discretionary analysis is not an asylum
bar. This factor is one of many factors
that an adjudicator must consider in the
totality of the circumstances. See 8 CFR
208.13(d), 1208.13(d) (‘‘Factors that fall
short of grounds of mandatory denial of
an asylum application may constitute
discretionary considerations.’’).
Further, commenters alleged that the
Departments ‘‘appear to seek a way
around the courts’ decisions’’ by
‘‘injecting’’ the previous rule barring
asylum into the NPRM as a
discretionary analysis and that the
NPRM failed to ‘‘address how the
purpose of INA 208(a) is effectuated by
inclusion of unlawful entry as a
significant adverse discretionary factor.’’
The Departments reject the contention
that the rule is merely ‘‘injecting’’ one
rule into another. The rule struck down
in East Bay Sanctuary Covenant and
O.A. established a bar to asylum
eligibility, and the courts in those cases
held that the rule exceeded the Attorney
General’s authority under INA
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), to
establish additional limitations on
asylum eligibility. But both courts have
acknowledged that the Attorney General
has broader authority to deny asylum as
a matter of discretion to otherwise
eligible applicants under INA
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). See
E. Bay Sanctuary Covenant v. Barr, 964
F.3d 832, 849 (9th Cir. 2020) (explaining
in the context of a different eligibility
bar that ‘‘the Attorney General’s
discretion to deny asylum under
62 Commenters cited E. Bay Sanctuary Covenant
v. Trump, 950 F.3d 1242 (9th Cir. 2020), and O.A.
v. Trump, 404 F. Supp. 3d 109, 147 (D.D.C. 2019).
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§ 1158(b)(1)(A)’’ is broader than ‘‘his
discretion to prescribe criteria for
eligibility for asylum’’ under
§ 1158(b)(2)(C)); O.A., 404 F. Supp. 3d at
151 (‘‘[T]here is a vast difference
between considering how the alien
entered the United States as one, among
many, factors in the exercise of a
discretionary authority, and a
categorical rule that disqualifies any
alien who enters across the southern
border outside a designated port of
entry.’’). Consistent with those
decisions, this rule simply clarifies that
unlawful entry or attempted unlawful
entry is a significant adverse factor in a
discretionary analysis. Further, the
Departments point to their explanation
at 85 FR at 36283:
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the Secretary and Attorney General have not
provided general guidance in agency
regulations for factors to be considered when
determining whether an alien merits asylum
as a matter of discretion. Nevertheless, the
Departments have issued regulations on
discretionary considerations for other forms
of relief, e.g., 8 CFR 212.7(d), 1212.7(d)
(discretionary decisions to consent to visa
applications, admission to the United States,
or adjustment of status, for certain criminal
aliens), and the Departments believe it is
similarly appropriate to establish criteria for
considering discretionary asylum claims.
The Departments acknowledge that
while that explanation does not
specifically reference section
208(b)(1)(A) of the Act, 8 U.S.C.
1158(b)(1)(A), the explanation clearly
states that the purpose of this section of
the rule is to establish criteria to guide
the exercise of discretion required in
considering asylum claims. As
explained in the NPRM and this final
rule, asylum is a discretionary form of
relief under section 208(b)(1)(A) of the
Act, 8 U.S.C. 1158(b)(1)(A).
Accordingly, this rule enables efficient
and proper exercise of the discretion
required by section 208(b)(1)(A) of the
Act, 8 U.S.C. 1158(b)(1)(A).
Although the Departments agree with
commenters that expediency is not the
only relevant ‘‘consideration when
making a determination that would
dictate the relief available to an asylum
seeker,’’ it is also true that ‘‘the public
has an interest in relieving burdens on
the asylum system and the efficient
conduct of foreign affairs.’’ See E. Bay
Sanctuary Covenant, 964 F.3d at 855.
By disfavoring (though, not barring)
asylum applicants who unlawfully enter
the United States and by deterring
meritless asylum claims, the
Departments seek to ensure that those
who need relief most urgently are better
able to obtain it. As stated in the
proposed rule, the Departments ‘‘believe
that the inclusion of the proposed
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factors in the rule will better ensure that
immigration judges and asylum officers
properly consider, in all cases, whether
applicants for asylum merit the relief as
a matter of discretion, even if the
applicant has otherwise demonstrated
eligibility for asylum.’’ 85 FR at 36283.
Adjudicators exercise independent
judgment in each case before them, 8
CFR 1003.10(b), and this rule facilitates
efficient adjudication of asylum
applications, consistent with such
exercise of independent judgment.
Contrary to the suggestions of
commenters, the rule does not codify
expediency as the sole—or even one—
factor to consider in determining
asylum relief.
Commenters unpersuasively contend
that the rule directly conflicts with
Federal circuit case law. The
commenters confuse the requirements
for a grant of asylum by misconstruing
a finding of eligibility as sufficient to
grant asylum. Asylum eligibility is
separate from the necessary
discretionary analysis, as reflected in
the statute: ‘‘with respect to any form of
relief that is granted in the exercise of
discretion,’’ an alien must establish
satisfaction of the eligibility
requirements for asylum and that the
alien ‘‘merits a favorable exercise of
discretion.’’ INA 240(c)(4)(A), 8 U.S.C.
1229a(c)(4)(A); see also CardozaFonseca, 480 U.S. at 428 n.5 (explaining
that ‘‘a finding that an alien is a refugee
does no more than establish that ‘the
alien may be granted asylum in the
discretion of the Attorney General’ ’’
(quoting INA 208(a)) (emphases in
original)); Matter of A–B–, 27 I&N Dec.
at 345 n.12, (stating that the ‘‘favorable
exercise of discretion is a discrete
requirement’’ in granting asylum and
should not be disregarded ‘‘solely
because an applicant otherwise meets
the burden of proof for asylum
eligibility under the INA’’), abrogated
on other grounds, Grace II, 965 F.3d at
897–900. The rule does not predicate
asylum eligibility on unlawful entry or
attempted unlawful entry. Instead, the
rule makes such factor a consideration
in the discretionary analysis.
In response to commenters’ other
quoted excerpts from case law, the
Departments considered that responding
to unlawful entry or attempted unlawful
entry require expenditure of valuable
government resources. 85 FR at 36283.
Not all aliens who unlawfully enter or
attempt to unlawfully enter intend to
apply for asylum, and apprehension and
processing of these aliens continues to
strain resources. Accordingly, the
Departments codify this factor as part of
the discretionary analysis, to be
considered in the totality of the
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80345
circumstances, to determine whether an
applicant warrants a favorable exercise
of discretion.
The Departments disagree with
commenters’ assertions that the rule, in
practice, will deny relief to ‘‘virtually all
asylum cases’’ or that the rule will limit
asylum relief to applicants from
contiguous nations or applicants who
arrive by air. The Departments reiterate
the independent judgment exercised by
adjudicators in applying immigration
law, and this rulemaking does not
dictate particular outcomes.
Adjudicators examine the unique factors
in each case before them, in accordance
with applicable law and regulations.
Accordingly, the Departments find these
assertions to be purely speculative.
The Departments also disagree that
the rule particularly burdens children.
As discussed elsewhere in this final
rule, adjudicators may consider whether
extraordinary circumstances exist or
whether exceptional and extremely
unusual hardships would arise if the
application was denied. In the case of a
child’s unlawful entry or attempted
unlawful entry, an adjudicator could
consider an alien’s juvenile status and
other related factors stemming from the
alien’s age, as relevant to and presented
in the case. See Section II.C.1.3 of this
preamble for further discussion on this
point. Nevertheless, the Departments
recognize that aliens under the age of 18
often have no say in determining their
manner of entry into the United States.
Accordingly, the Departments have
modified the language in the final rule
to reflect that the unlawful entry of an
alien under age 18 would not
necessarily be a significant adverse
discretionary factor.63
4.7.2. Failure of an Alien To Apply for
Protection From Persecution or Torture
in at Least One Country Outside the
Alien’s Country of Citizenship,
Nationality, or Last Lawful Habitual
Residence Through Which the Alien
Transited Before Entering the United
States
Comment: Commenters expressed
general opposition to the proposed
rule’s requirement that adjudicators
consider failure to apply for asylum in
third countries through which
applicants traveled to reach the United
States to be a significant adverse factor.
Commenters argued that placing great
negative weight on the applicant’s route
to the United States is inconsistent with
discretionary determinations, which,
63 Such entry would remain a significant adverse
discretionary factor for any adults traveling with the
minor, however.
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commenters argued, should be based on
a consideration of all the equities.
Commenters asserted that, contrary to
the NPRM’s reasoning, failure to apply
for asylum protection in a third country
is often not evidence of misuse of the
asylum system. Commenters asserted
that there are numerous reasons that
applicants would not apply for asylum
in such countries, including lack of
knowledge on how to apply and
language barriers. Additionally,
commenters cited violence and a fear of
persecution as a reason that applicants
may not apply for asylum in third
countries. One commenter noted that
the U.S. government has issued travel
advisories urging Americans to
reconsider travel plans to El Salvador,
Honduras, Guatemala, and eleven
Mexican states because of violence.
Furthermore, the commenter noted that
the U.S. government urges travelers to
‘‘exercise caution’’ when travelling to
sixteen other Mexican states, and that
the United States has issued its highest
travel warning—‘‘Do Not Travel’’—for
the remaining five Mexican states. The
commenter asserted that these warnings
indicate that the conditions in some
Mexican states are as dangerous as those
in Syria and Iraq, which also have the
highest travel warning. Given these
various warnings, the commenter
asserted, it is not reasonable to expect
individuals to apply for asylum in
Mexico.
Commenters asserted that the NPRM’s
reasoning failed to adequately consider
the realities of the asylum systems in
Mexico, Guatemala, Honduras, and El
Salvador. In the case of Mexico, the
commenter argued that the asylum
system there is restrictive, underfunded,
and underdeveloped. Commenters
similarly asserted that the asylum
systems in Guatemala, Honduras, and El
Salvador are rudimentary.
Commenters argued that the
requirement to apply for asylum in a
third country en route to the United
States inappropriately advantaged
asylum seekers coming from contiguous
countries, as well as those who have the
means to fly non-stop to the United
States. With respect to asylum seekers
who reached the United States by air
travel, commenters asserted that the
NPRM lacked a rationale as to why
asylum seekers who had even a brief
layover in another country would be
required to apply for asylum in that
country. Commenters noted that such a
requirement is particularly harmful for
those coming from countries where
direct flights to the United States are not
possible. Commenters asserted that this
difference in treatment violated the
Fifth Amendment of the United States
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Constitution. Commenters asserted that
the exceptions outlined in the proposed
regulation are identical to language in
the Departments’ July 16, 2019, IFR. In
considering the legality of the IFR,
commenters stated that the Ninth
Circuit Court of Appeals found the rule
to be arbitrary and capricious and
inconsistent with the INA.
One commenter asserted that the
proposed provision conflicts with two
statutory provisions concerning when
asylum seekers must apply for asylum
in another country: Sections
208(a)(2)(A) and 208(b)(2)(A)(vi) of the
Act, 8 U.S.C. 1158(a)(2)(A), (b)(2)(A)(vi).
Specifically, the commenter asserted
that the proposed provision is not
consistent with these statutory sections
because it would exclude large classes
of individuals from asylum, it does not
require adjudicators to consider the
safety of the third countries, and it does
not require adjudicators to consider the
fairness of third country asylum
procedures.
Response: This factor was
promulgated as a way to ensure that
aliens in need of protection apply at the
first available opportunity. As stated in
the proposed rule, the Departments
believe that there is a higher likelihood
that aliens who fail to apply for
protection in a country through which
they transit en route to the United States
are misusing the asylum system. 85 FR
at 36283; see also Asylum Eligibility
and Procedural Modifications, 84 FR
33829, 33831 (July 16, 2019). Because
the Departments recognize that this may
not always be the case, the rule provides
exceptions for situations in which an
alien was denied protection in the
country at issue, the alien was a victim
of a severe form of trafficking in
persons, or the relevant country was not
a party to certain humanitarian
conventions, as provided in 8 CFR
208.13(d)(1)(ii), 1208.13(d)(1)(ii). In
addition, the adjudicator may consider
whether exceptional circumstances exist
or whether denial of asylum would
result in exceptional and extremely
unusual hardship to the alien. 85 FR at
36285.
Further, because this factor is raceneutral on its face and applies equally
to all aliens, it does not violate the Fifth
Amendment’s due process guarantee.
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. . . . Standing alone,
[disproportionate impact] does not
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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)). This factor was not
motivated by discriminatory intent. The
rule and this factor in particular apply
equally to all asylum applicants. To the
extent that any one group is
disproportionately affected by the rule,
such outcome was not based on
discriminatory intent, but rather on the
demographics of the affected population
and the Departments’ aim to ensure that
asylum protection in the United States
is available and timely granted to
applicants who genuinely need it most.
See generally 85 FR at 36283; see also
Regents of Univ. of Cal., 140 S. Ct. at
1915–16 (rejecting the claim that
revoking an immigration policy that
primarily benefitted Latinos supported
an inference of invidious discrimination
against Latinos, because any disparate
impact could be explained by the
demographic fact that ‘‘Latinos make up
a large share of the unauthorized alien
population’’). The Departments have
determined that aliens who do not
apply for protection in a country
through which they transit are less
likely to merit relief as a matter of
discretion; thus, the Departments
proposed such factor to be considered
while also providing the opportunity for
aliens to present evidence to the
contrary. See id.
Moreover, this factor is not arbitrary.
The rule requires adjudicators to
consider, as part of their discretionary
analysis, whether an alien transited
through a country en route to the United
States but did not apply for asylum
there. If an alien did not apply for
protection, regardless of whether transit
was effectuated by foot, flight layover,
or sea, the alien forwent the immediate
opportunity to apply for protection in
the transited country for the future
opportunity to apply for protection in
the United States. The Departments
believe this choice is relevant to an
adjudicator’s discretionary analysis
because it may indicate the urgency or
legitimacy of an applicant’s claim. Thus,
adjudicators should consider, as
relevant, whether an alien failed to
apply for protection in a country
through which the alien transited en
route to the United States, in the totality
of the circumstances, to determine
whether the alien merits relief as a
matter of discretion. Moreover, nothing
in the rule categorically prohibits an
adjudicator from concluding that, under
the circumstances, an applicant’s brief
layover in transit is less probative of the
urgency of the applicant’s claim than a
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longer stay. Nor does anything in the
rule categorically prohibit an
adjudicator from concluding that, under
the circumstances, an applicant’s
layover in transit in a country known for
human rights abuses is less probative of
the urgency of the applicant’s claim
than a layover in a country with a wellrecognized system for providing
humanitarian protection. In any event,
promulgating this factor in the rule
ensures that adjudicators at least
account for it in the exercise of
discretion, even though its probative
value may vary from case to case.
The Departments also disagree with
commenters who claim the Departments
‘‘merely refer[ ] back to its earlier
rulemaking on the third country transit
bar.’’ The NPRM’s citation to Asylum
Eligibility and Procedural
Modifications, 84 FR 33829, 33831 (July
16, 2019), was meant to clearly reiterate,
while avoiding redundancy, the
Departments’ continued belief that,
generally, aliens who do not apply for
protection in a country through which
they transit en route to the United States
are more likely to have a nonmeritorious asylum claim. As evidenced
by the clause in the NPRM that states,
‘‘as previously explained,’’ the
Departments explained this factor
earlier in the proposed rule. 85 FR at
36282–83. The Departments provided
extensive explanation of the BIA’s
decision in Matter of Pula in which the
BIA held that ‘‘whether the alien passed
through any other countries or arrived
in the United States directly from his
country’’ was a factor to consider in
determining whether a favorable
exercise of discretion is warranted. 19
I&N Dec. at 473–74. The Departments
chose to codify that factor in the
regulations. The Departments disagree
with commenters who alleged that this
factor ‘‘ignores’’ the fact that countries
through which an alien may transit may
be as dangerous as the country of origin
and is based on an incorrect premise
that there is a ‘‘real opportunity’’ to seek
asylum in all countries party to the
Convention. By becoming party to those
treaties, the third countries through
which an alien may have travelled are
obligated, based on the treaties they
have joined, to provide protection from
removal to individuals who are likely to
face persecution on account of a
protected ground or torture.
Accordingly, the Departments
understand this factor to be consistent
with the provisions of section 208 of the
Act, 8 U.S.C. 1158.
For similar reasons, the Departments
find commenters’ assertion that there
are numerous reasons that applicants
would not apply for asylum in such
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countries, including lack of knowledge
on how to apply and language barriers,
as well as violence and a fear of
persecution, as unpersuasive. As an
initial point, aliens who apply for
asylum in the United States do so
despite the possibility of language
barriers and lack of knowledge of
application procedures, and
commenters did not explain—and the
Departments cannot ascertain—why
these barriers would affect only other
countries, but not the United States.
Additionally, the alleged failure to
apply in other countries due to violence
or a fear of persecution is based
principally on anecdotes and
speculation and is neither borne out by
evidence nor distinguished from similar
conditions in the United States. For
example, the UNHCR has documented a
notable increase in asylum and refugee
claims filed in Mexico—even during the
ongoing COVID–19 pandemic—which
strongly suggests that Mexico is an
appropriate option for seeking refuge for
those genuinely fleeing persecution.
See, e.g., Summary of Statement by
UNHCR Spokesperson Shabia Mantoo,
Despite Pandemic Restrictions, People
Fleeing Violence and Persecution
Continue to Seek Asylum in Mexico,
UNHCR (Apr. 28, 2020), https://
www.unhcr.org/en-us/news/briefing/
2020/4/5ea7dc144/despite-pandemicrestrictions-people-fleeing-violencepersecution-continue.html (‘‘While a
number of countries throughout Latin
America and the rest of the world have
closed their borders and restricted
movement to contain the spread of
coronavirus, Mexico has continued to
register new asylum claims from people
fleeing brutal violence and persecution,
helping them find safety.’’). Asylum and
refugee claims filed in Mexico increased
33 percent in the first three months of
2020 compared to the same period in
2019, with nearly 17,800 claims in 2020.
Id. Asylum claims filed in Mexico rose
by more than 103 percent in 2018
compared to the previous year. UNHCR,
Mexico Fact Sheet (Apr. 2019), https://
reporting.unhcr.org/sites/default/files/
UNHCR%20Factsheet%20Mexico%20%20April%202019.pdf. Overall,
‘‘[a]sylum requests have doubled in
Mexico each year since 2015.’’ Clare
Ribando Seelke, Cong. Rsch. Serv.,
IF10215, Mexico’s Immigration Control
Efforts 2 (2020), https://fas.org/sgp/crs/
row/IF10215.pdf.
Moreover, some private organizations
acknowledge that asylum claims in
Mexico have recently ‘‘skyrocket[ed],’’
that ‘‘Mexico has adopted a broader
refugee definition than the U.S. and
grants a higher percentage of asylum
applications,’’ and that ‘‘Mexico may
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offer better options for certain refugees
who cannot find international
protection in the U.S.,’’ including for
those ‘‘who are deciding where to seek
asylum [i.e., between Mexico and the
United States].’’ Asylum Access,
Mexican Asylum System for U.S.
Immigration Lawyers FAQ 1, 7 (Nov.
2019), https://asylumaccess.org/wpcontent/uploads/2019/11/MexicanAsylum-FAQ-for-US-ImmigrationLawyers.pdf. If aliens coming to the
United States through Mexico feared
living in Mexico, it would be irrational
for them to seek refuge there in large
numbers; yet, that is precisely what the
available data suggests.
Additionally, commenters do not
indicate why violence in part of one
country is different from violence
existing in a part of the United States.
Just as violence may occur in parts of
the United States but individuals fleeing
persecution consider the country ‘‘safe’’
and want to live here, localized
episodes of violence in other countries
do not mean the country, as a whole, is
unsafe for individuals fleeing
persecution. In other words, the
presence of local or regional violence,
particularly criminal violence, exists in
all countries, even those generally
considered ‘‘safe,’’ but such presence of
local or regional violence does not
render those countries too dangerous
that individuals fleeing persecution
could not take refuge anywhere in the
country. Cf. Cece, 733 F.3d at 679
(Easterbrook, dissenting) (‘‘Crime may
be rampant in Albania, but it is common
in the United States too. People are
forced into prostitution in Chicago. . . .
Must Canada grant asylum to young
women who fear prostitution in the
United States, or who dread the risk of
violence in or near public-housing
projects?’’). For instance, per the United
Nations Office on Drugs and Crime
Chart on Victim of Intentional
Homicide, the murder rate in Mexico of
29.1/100,000 in 2018, see United
Nations Office on Drugs and Crime,
Mexico, Victims of Intentional
Homicide, 1990–2018, https://
dataunodc.un.org/content/data/
homicide/homicide-rate, was lower than
that in American cities such as St.
Louis, Baltimore, Detroit, New Orleans
and Baton Rouge. See, e.g., Missouri,
FBI: UCR (2018); Maryland, FBI: UCR
(2018); Michigan, FBI: UCR (2018);
Louisiana, FBI: UCR (2018), https://
ucr.fbi.gov/crime-in-the-u.s/2018/crimein-the-u.s.-2018/topic-pages/offensesknown-to-law-enforcement (Table 8).
The murder rate in Baltimore, America’s
deadliest big city, is twice that of
Mexico. Sean Kennedy, ‘The Wire’ is
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Finished, but Baltimore Still Bleeds,
Wall St. J. (Feb. 7, 2020), https://
www.wsj.com/articles/the-wire-isfinished-but-baltimore-still-bleeds11581119104. In short, although the
Departments acknowledge commenters’
concerns, they are supported by little
evidence, do not explain why their
concerns do not also apply to the United
States, and are ultimately outweighed
by the overall need to ensure
appropriate and consistent
consideration of probative discretionary
factors that the rule provides.
Furthermore, this factor does not
conflict with sections 208(a)(2)(A) and
208(b)(2)(A)(vi) of the Act, 8 U.S.C.
1158(a)(2)(A), (b)(2)(A)(vi), as one
commenter alleged. Those provisions
pose bars to asylum eligibility, but this
factor merely guides adjudicators’
discretion to grant or deny asylum to
otherwise eligible applicants. Generally,
the safe third country provision, INA
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A), bars
an alien from applying for asylum if the
Attorney General determines that the
alien could be removed to a country in
which the alien’s life or freedom would
not be threatened and where the alien
has access to a process for determining
asylum claims or equivalent protection.
The firm resettlement provision, INA
208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(a)(vi), bars asylum eligibility
for an alien who firmly resettled in
another country before arriving in the
United States.
In contrast to those two provisions,
this factor—regarding whether an alien
failed to apply for protection from
persecution or torture in at least one
country outside the alien’s country of
citizenship, nationality, or last lawful
habitual residence through which the
alien transited before entering the
United States—is considered by an
adjudicator in making a discretionary
determination on the alien’s asylum
application. Whether an application
warrants a favorable exercise of
discretion is distinct from whether an
alien is barred altogether from applying
for asylum, as is the case with the safe
third country provision, or from
establishing eligibility for asylum, as is
the case with the firm resettlement
provision. To the extent that the
commenter’s concerns about the safety
of a third country and availability of
asylum procedures in that third country
specifically refer to the safe third
country provision in section
208(a)(2)(A) of the Act, 8 U.S.C.
1158(a)(2)(A), those are irrelevant to this
distinct factor considered in
discretionary determinations. To the
extent that the commenter suggests
specifically incorporating those
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considerations—the safety of a third
country and availability of asylum
procedures in that third country—into
this factor, the Departments reiterate
that an adjudicator may consider, as
relevant, extraordinary circumstances
and exceptional or extremely unusual
hardship that may result if asylum is
denied. See 85 FR at 36285.
Regardless, the Attorney General’s
discretion to deny asylum to otherwise
eligible applicants is not limited by the
safe third country or firm resettlement
bars. East Bay Sanctuary and O.A. both
presented the question whether the
eligibility bar there conflicted with the
statute’s other eligibility bars, because
the Attorney General’s authority to ‘‘by
regulation establish additional
limitations and conditions . . . under
which an alien shall be ineligible for
asylum’’ must be ‘‘consistent with this
section.’’ INA 208(b)(2)(C), 8 U.S.C.
1108(b)(2)(C). Here, by contrast, the
Attorney General would be acting under
his authority under INA 208(b)(1)(A),
which includes no similar ‘‘consistent
with’’ requirement. Simply, the
Secretary of Homeland Security or the
Attorney General ‘‘may’’ deny asylum in
their discretion. Id.; see E. Bay
Sanctuary Covenant, 964 F.3d at 849
(‘‘Unlike the broad discretion to deny
asylum to aliens who are eligible for
asylum, the discretion to prescribe
criteria for eligibility is constrained by
§ 1158(b)(2)(C), which allows the
Attorney General to ‘establish additional
limitations and conditions . . . under
which an alien shall be ineligible for
asylum’ only so long as those
limitations and conditions are
‘consistent with’ § 1158.’’).
4.7.3. Use of Fraudulent Documents To
Enter the United States
Comment: Commenters expressed
several general concerns regarding the
regulatory provisions on fraudulent
documents. First, commenters argued
that the provisions would result in the
denial of most asylum applications.
Second, commenters argued that it is
sometimes impossible for asylum
seekers to obtain valid documents and
that in some instances pursuing such
documents could put them in greater
danger. Third, commenters asserted that
it is particularly difficult for women to
obtain valid travel documents in some
countries because they need to first
obtain the approval of a male relative.
Fourth, commenters asserted that the
NPRM lacked a valid rationale as to why
those travelling through multiple
countries would be punished under the
proposed rule and those who came
directly to the United States from a
contiguous country or a direct flight
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would be excused. Finally, one
commenter argued that the proposed
provisions are ultra vires because ‘‘the
law at INA 208 and 209 provide for
specific waivers of the use of
[fraudulent documents].’’
Commenters argued that the NPRM’s
assertion that the use of fraudulent
documents makes enforcement of
immigration laws difficult and requires
significant resources is not supported by
evidence and is false. One commenter
noted that under section 208(d)(5)(A)(i)
of the Act (8 U.S.C. 1158(d)(5)(A)(i)) an
individual cannot be granted asylum
until he or she has completed a
background check and his or her
identity ‘‘has been checked against all
appropriate records or databases.’’ The
commenter noted that the statute’s
requirements are applicable to every
person seeking asylum regardless of
whether fraudulent documents were
used. Thus, the commenter argued,
making the use of fraudulent documents
a significant adverse factor would not
reduce the amount of resources needed
to adjudicate asylum cases.
One commenter argued that the
proposed fraudulent document
provisions are contrary to congressional
intent. Specifically, the commenter
noted that on May 1, 1996, the Senate
debated an immigration bill that would
have summarily deported, among
others, asylum seekers who used false
documents to enter the United States.
The commenter noted that Senator
Patrick Leahy introduced an
amendment to the bill that would
remove the use of ‘‘summary exclusion
procedures for asylum applicants.’’ The
commenter quoted some of Senator
Leahy’s remarks in support of the
amendment, in which he noted that
people fleeing persecution will probably
get fraudulent passports. The
commenter noted there was bipartisan
support of the amendment.
Commenters asserted that Federal
courts have recognized that false
documents may be needed to flee
persecution. Citing Gulla v. Gonzales,
498 F.3d 911 (9th Cir. 2007), one
commenter noted that Mr. Gulla, an
Iraqi asylum seeker, used forged
passports to flee government
persecution on account of his religion
and that the court concluded that
reasoned use of false documentation in
that case supported Mr. Gulla’s asylum
claim rather than detracted from it.
One commenter argued that the
NPRM’s rationale for the fraudulent
document provisions distorted the BIA’s
reasoning in Matter of Pula.
Specifically, the commenter argued that
even though the BIA delineated a
difference between the use of fraudulent
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documents to escape persecution and
falsifying a United States passport to
assume the identity of a United States
citizen, the BIA noted that an
adjudicator would still be required to
consider the totality of the
circumstances in both cases.
Accordingly, the commenter argued that
the case does not provide justification
for making the use of a fraudulent
document a significantly adverse factor.
Response: As an initial point,
commenters failed to explain why an
alien genuinely seeking asylum would
need to use false documents to enter the
United States in the first instance, as
distinguished from using false
documents only to leave the alien’s
country of nationality. An alien need
not necessarily have entered the United
States to apply for asylum; rather, an
alien ‘‘arriv[ing] in the United States’’
may apply for asylum. INA 208(a)(1), 8
U.S.C. 1158(a)(1). Thus, an alien may
seek asylum at a port of entry without
using or attempting to use any
documents whatsoever. Moreover, large
numbers of aliens enter the United
States without presenting any
documents at all, including those who
subsequently seek asylum after turning
themselves in or are otherwise
apprehended by DHS. See INA
212(a)(6)(A), 8 U.S.C. 1182(a)(6)(A)
(rendering inadmissible an alien who
enters the United States without being
admitted or paroled); see also Perla
Trevizo, How Do You ‘Secure’ the
Border When Most Migrants Are Just
Turning Themselves In?, Tuscon.com
(Dec. 15, 2018), https://tucson.com/
news/state-and-regional/how-do-yousecure-the-border-when-most-migrantsare-just-turning-themselves-in/article_
deed8d48-fa50-11e8-837c0b4b3be5a42a.html (noting that ‘‘large
groups’’ of aliens simply ‘‘cross illegally
to turn themselves in,’’ with no mention
of any entry documents, false or
otherwise). The use of fraudulent
documents undermines the integrity of
the immigration system and is
unnecessary for an alien to apply for
asylum. In other words, because neither
fraudulent documents nor even entry
into the United States are requirements
to make an asylum application, the use
of such documents to enter or attempt
to enter the United States strongly
suggests that the motive of an alien
using such documents is to enter the
United States for reasons other than a
genuine fear of persecution or a need for
protection. Consequently, the
Departments find it reasonable to
consider that factor as a significantly
adverse discretionary one for purposes
of adjudicating an asylum application,
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and the commenters did not
persuasively explain why that should
not be the case.
Even if entry documents were a
prerequisite to the ability to apply for
asylum, the Departments nevertheless
would find that this factor would deter
the use of false documents, which create
burdensome administrative costs in
filtering valid from invalid
documentation and dissipate human
resources that could be used to ensure
that meritorious claims are addressed
efficiently. Those benefits, in the
Departments’ view, would also
ultimately outweigh any costs
associated with the denial of asylum
applications due to the use of such
documents.
Further, the Departments disagree that
this factor would result in denial of
most applications. Regardless of what
documents aliens may use to depart
their countries of nationality, there is no
evidence that most asylum applicants
use false documents to enter the United
States; rather, most aliens seeking
asylum either appear at a port of entry
and request asylum without seeking to
enter with any particular documents or
enter the United States without
inspection, i.e., without presenting any
documents at all.
Commenters’ concerns are also
speculative, and the Departments
reiterate that this factor is one of many
factors considered under the
adjudicator’s discretionary analysis—
not a bar to asylum.
85 FR at 36283 (‘‘[T]he adjudicator
should also consider any other relevant
facts and circumstances to determine
whether the applicant merits asylum as
a matter of discretion.’’). Further, an
alien may introduce relevant evidence
of extraordinary circumstances,
including challenges described by the
commenters, for the adjudicator to
consider. See 85 FR at 36283. The
Departments also emphasize that an
alien’s use of fraudulent documents to
enter the United States is a ground that
renders the alien inadmissible. INA
212(a)(6)(C), 8 U.S.C. 1182(a)(6)(C). This
clear, negative consequence underscores
congressional disapproval of the use of
fraudulent documents to enter the
United States.
In the NPRM, the Departments
explained why this factor considers use
of fraudulent documents for aliens
traveling through more than one country
but not aliens arriving from a
contiguous country. 85 FR at 36283
n.35. For aliens arriving from a
contiguous country, an alien may
simply be carrying the documents he or
she used to depart that country,
particularly in situations in which the
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80349
exit control for the contiguous country
is located in close physical proximity to
the port of entry into the United States
or the embarkation point for a trip by air
or sea to the United States; thus the
Departments will not consider this a
significant adverse factor for such
aliens. As further explained in the
NPRM, the rule aligns with Lin v.
Gonzales, 445 F.3d 127, 133 (2d Cir.
2006), and Matter of Pula, 19 I&N Dec.
at 474, cases that draw a distinction
between presentation of a fraudulent
document to an immigration court and
the use of a fraudulent document to
escape immediate danger. 85 FR at
36283 n.35. To the extent other BIA
cases reject such a distinction, the rule
supersedes conflicting case law.
Accordingly, aliens are not ‘‘punished,’’
as commenters alleged, if they travel
through more than one country. Rather,
the line drawn in Lin and Pula supports
differential treatment. If an alien arrives
directly (such as by air), there is an
innocuous explanation for his carrying
of fraudulent documents: He still has
them because he used them to escape
immediate danger. But if an alien travels
through more than one such country,
that justification for carrying fraudulent
documents—escaping persecution—
becomes far more attenuated. As
explained elsewhere in the NPRM and
this final rule, the Departments believe
that if aliens who travel through more
than one country, subject to some
exceptions, are escaping persecution,
they have an opportunity to seek
protection in any of the countries
through which they transit en route to
the United States. If aliens arriving from
a contiguous country are escaping
persecution, the first place to seek
protection would be the United States,
and so the Departments will not
consider such aliens’ use of fraudulent
documents in pursuit of protection as a
significant adverse factor.
Contrary to commenters’ assertions,
section 208 of the Act, 8 U.S.C. 1158,
does not provide a waiver for the use of
fraudulent documents to enter the
United States, and section 209 of the
Act, 8 U.S.C. 1159, only waives a
ground of inadmissibility related to the
use of fraudulent documents, INA
212(a)(6)(C)(i), 8 U.S.C. 1182(a)(6)(C)(i),
in conjunction with an application for
adjustment of status for an alien who
has already been granted asylum.
Consequently, neither provision applies
to the rule, which addresses solely
discretionary determinations in
connection with an asylum application.
Moreover, the potential availability of a
waiver of a ground of inadmissibility,
which is itself discretionary, for an alien
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who has already been granted asylum
and is seeking lawful permanent
resident status does not suggest that the
basis for the ground of inadmissibility is
not also a relevant discretionary
consideration in the first instance.
Because this factor would discourage
use of fraudulent documents and
streamline the discretionary analysis
regarding the use of fraudulent
documents, the Departments believe the
factor would reduce the overall time
expended to address the issue of
fraudulent documents on a systemwide
basis because fewer aliens would use
fraudulent documents and adjudicators
would consider their use more
consistently. Although the use of
fraudulent documents to enter the
United States is difficult to track in
general and the Departments do not
track the number of asylum applicants
who present such documents, the
Departments nevertheless expect less
time to be expended overall. To the
extent that this provision deters the use
of fraudulent documents, the provision
will conserve enforcement resources
that may otherwise be spent ferreting
out fraud and will support the overall
integrity of the immigration systems and
ensure that benefits are not
inappropriately granted. The
Departments find those benefits
outweigh the various concerns raised by
commenters.
The Departments follow applicable
law and regulations. If the proposed
amendments cited by commenters were
not included in the version of the bill
that became law, then the Departments
do not follow or consider legislative
history regarding such amendments. See
Park ‘N Fly, Inc. v. Dollar Park and Fly,
Inc., 469 U.S. 189, 194 (1985)
(‘‘Statutory construction must begin
with the language employed by
Congress and the assumption that the
ordinary meaning of that language
accurately expresses the legislative
purpose.’’).
The Departments again note the
NPRM, which explains how the rule
interacts with case law regarding this
factor. 85 FR at 36283 n.35. Further, this
rule supersedes previous regulations
that case law may have interpreted in
reaching decisions prior to
promulgation of the rule at hand. To the
extent that other circuits have disagreed
with the Departments’ reasonable
interpretation, the Departments’
proposed rule would warrant reevaluation in appropriate cases under
well-established principles. See Brand
X, 545 U.S. at 982.
The rule requires adjudicators to
consider this factor, like all the factors
outlined in the NPRM, in light of all
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relevant factors. See 85 FR at 36283,
36285. In this regard, the rule aligns
with the approach in Matter of Pula,
contrary to the commenters’ assertions.
The Departments note, however, that
the rule also supersedes Matter of Pula
in some regards, as explicitly provided
in the NPRM. 85 FR at 36285.
4.7.4. Spent More Than 14 Days in Any
One Country
Comment: Commenters expressed
general concerns with the proposed
regulation’s introduction of a bar that
would make any person who spent more
than 14 days in any country en route to
the United States ineligible for asylum.
Specifically, commenters asserted the
new bar is cruel and arbitrary and
capricious, and that it is designed to
make most aliens who enter from the
southern border ineligible for asylum.
Commenters asserted that the NPRM’s
reasoning as to the necessity for a 14day bar is inadequate and that the
policy would be contrary to the concept
of firm resettlement. One commenter
argued that the NPRM failed to explain
how a 14-day stay in a country equates
to an offer of firm resettlement, and
another asserted that the length of stay
in a country is irrelevant to the merits
of an LGBTQ asylum seeker’s claim.
Additionally, one commenter stated that
being given an application to seek
protection in another country does not
equate to an offer of firm resettlement.
The same commenter argued the
NPRM’s use of a single Federal case to
support the proposed provision—Yang
v. INS, 79 F.3d 932 (9th Cir. 1996)—is
not persuasive. The commenter stated
that in Yang, refugees from Laos who
spent 14 years in France with refugee
status were denied asylum in the United
States. The commenter asserted that
using this case to support the position
that denying asylum applications for
anyone who spent 14 days in another
country with no kind of lawful status is
‘‘irrational.’’
Commenters argued that the proposed
14-day bar would punish those who
seek to comply with U.S. policies.
Specifically, commenters noted that
under the CBP ‘‘metering’’ policy,
asylum seekers sometimes are required
to wait more than 14 days (one
commenter stated that the wait could
span months) in order to make their
asylum claims. Commenters also
asserted that asylum seekers subject to
MPP are often required to spend more
than 14 days (up to weeks or months)
in Mexico. Commenters expressed
concern that asylum seekers subject to
metering and MPP would be barred
from asylum under the proposed rule.
One commenter similarly argued that
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the United States has used COVID–19 as
a ‘‘pretext’’ to close the Mexican border
to all asylum seekers. The commenter
implied that these policies could
likewise cause an individual to be in a
third country for longer than 14 days.
Commenters asserted that many
asylum seekers travel to the United
States by foot, bus, or train, which,
commenters assert, often takes longer
than 14 days. Commenters asserted that
the length of an asylum seeker’s journey
is often extended due to the need to
avoid detection from government
officials and non-government actors
trying to return the asylum seeker back
to the country from which the
individual is fleeing. Additionally,
commenters noted that there could be
other reasons that an asylum seeker’s
journey could be extended beyond 14
days, including robbery, kidnap, or
rape. One commenter asserted that those
who travel through southern Mexico
face additional hurdles, asserting that
the Mexican government refuses to issue
travel documents and that the
government threatens to fine
transportation companies that sell
tickets to those without travel
documents.
One commenter expressed concern
that the proposed regulation did not
include an exception for children and
other discrete populations, who, the
commenter stated, might not have
control over the amount of time spent in
third countries en route to the United
States.
Response: This factor is not a bar to
asylum, as commenters alleged. This
factor is considered, along with all the
other factors outlined in the rule, as part
of an adjudicator’s discretionary
analysis. Further, the NPRM clearly
recognized that ‘‘individual
circumstances of an alien’s presence in
a third country or transit to the United
States may not necessarily warrant
adverse discretionary consideration in
all instances,’’ and subsequently
provided various exceptions. 85 FR at
36284.
Consideration of this factor is not
cruel or arbitrary and capricious. This
factor is considered adverse only when
an alien spends more than 14 days in a
country that permits applications for
asylum, refugee status, or similar
protections. The Departments believe
that an alien should apply for protection
at the first available opportunity, but the
Departments would not hold an alien
responsible for failure to apply for
protection that does not, in fact, exist.
Asylum is a form of relief intended for
aliens who legitimately need urgent
protection. If any alien stays in one
country for more than 14 days and that
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country permits applications for various
forms of protection but the alien fails to
apply for such protections, then the
Departments consider that failure to be
indicative of a lack of urgency on the
alien’s part. This factor thus screens for
urgency, an important consideration in
light of the growing number of asylum
applications the Departments receive:
The Departments have seen record
numbers of asylum applications, along
with record numbers of asylum denials,
in the past decade. For comparison, in
FY 2008, 42,836 asylum applications
were filed while, in FY 2019, 213,798
asylum applications were filed. See
EOIR, Adjudication Statistics: Total
Asylum Applications (Oct. 13, 2020),
https://www.justice.gov/eoir/page/file/
1106366/download. These record
numbers have slowed the adjudication
process for all asylum seekers, including
those who urgently need protection.
Thus, the Departments expect that
considering this factor will assist the
efficient adjudication of asylum claims.
The NPRM does not equate either a
14-day stay in one country or the offer
to seek protection, on their own, as firm
resettlement, contrary to commenters’
assertions. For amendments to the firm
resettlement bar, commenters should
refer to Section II.C.7 of the preamble to
the NPRM, 85 FR at 36285–86, and
Section II.C.4.8 of the preamble to this
final rule, revised at 8 CFR 208.15,
1208.15.
Contrary to commenters’ allegations,
the proposed treatment of an alien who
spends more than 14 days in a country
en route to the United States as a
significant adverse factor does not
conflict with firm resettlement. First, an
alien found to have firmly resettled is
barred from asylum relief. INA
208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi). The provision at hand,
however, is not a mandatory bar but a
discretionary factor to be considered by
the adjudicator, subject to exceptions in
cases where the alien’s application for
protection in the third country was
denied, the alien is a victim of a severe
form of human trafficking defined in 8
CFR 214.11, or the alien was present in
or transited through only countries that
were not parties to the Refugee
Convention, Refugee Protocol, or CAT at
the relevant time. 8 CFR
208.13(d)(2)(i)(A)(1)–(3), (d)(2)(i)(B)(1)–
(3); see also 85 FR at 36824. Second, as
proposed by the NPRM, the firm
resettlement bar would apply ‘‘when the
evidence of record indicates’’ that it
would apply. 85 FR at 36286. Then, the
alien bears the burden of proof to
demonstrate that the bar does not apply,
consistent with 8 CFR 1240.8(d). See id.
Accordingly, the discretionary factor of
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whether an alien spent more than 14
days in any one country that provides
applications for refugee, asylee, or other
protections prior to entering or arriving
in the United States is different from but
related to the firm resettlement bar: If an
alien successfully demonstrates that the
firm resettlement bar does not apply,
then an adjudicator would consider that
factor as part of a discretionary analysis
regarding the asylum application.
The Departments disagree that the
reference to Yang, 79 F.3d at 935–39, is
irrational. That case clearly
demonstrates why the Departments are
promulgating this factor for
consideration. As stated in the NPRM,
that case ‘‘uph[eld] a discretionary firm
resettlement bar, and reject[ed] the
premise that such evaluation is arbitrary
and capricious or that it prevents
adjudicators from exercising
discretion.’’ 85 FR at 36284 (citing
Yang, 79 F.3d at 935–39). Such
reasoning is relevant to all cases in
which this factor is considered, whether
the alien spent 14 days or 14 years in
another country. Further, contrary to the
commenters’ assertion, even if the alien
spent 14 days or more in another
country, this factor is not a bar to
asylum; rather, it is considered in light
of all other relevant factors and various
exceptions. See id.
For aliens subject to MPP, those aliens
who have entered the United States and
were processed under MPP are no
longer en route to the United States and
have already applied for admission to
the United States, whereas, this factor
considers whether an alien stayed for
more than 14 days in one country
‘‘[i]mmediately prior to his arrival in the
United States or en route to the United
States.’’ 8 CFR 208.13(d)(2)(i)(A),
1208.13(d)(2)(i)(A). If an alien claims
that he was subject to metering and
waited more than 14 days in Mexico, he
or she may introduce such evidence as
an extraordinary circumstance.
Moreover, such aliens may apply for
protection in Mexico; if that application
is denied, then the factor would not
apply. In addition, the Departments
reject any contention that COVID–19
has been used as a pretext to close the
southern border. The government has
taken steps at the Canadian and
Mexican border to curb the introduction
and spread of the virus, which
continues to affect the United States and
the entire world. See DHS, Fact Sheet:
DHS Measures on the Border to Limit
the Further Spread of Coronavirus
(updated Oct. 22, 2020), https://
www.dhs.gov/news/2020/06/16/factsheet-dhs-measures-border-limitfurther-spread-coronavirus; Control of
Communicable Diseases; Foreign
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Quarantine: Suspension of Introduction
of Persons Into United States From
Designated Foreign Countries or Places
for Public Health Purposes, 85 FR 16559
(Mar. 24, 2020); Security Bars and
Processing, 85 FR 41201 (July 9, 2020)
(proposed rule).
For discrete populations, if
circumstances exist that extend an
alien’s stay in one country to surpass 14
days, an adjudicator will consider such
circumstances to determine whether
they constitute extraordinary
circumstances. Further, an adjudicator
will evaluate whether such alien falls
into one of the three exceptions to this
factor.
4.7.5. Transits Through More Than One
Country Between His Country of
Citizenship, Nationality, or Last
Habitual Residence and the United
States
Comment: Commenters asserted that
the proposed provision pertaining to
transit through more than one country
en route to the United States is arbitrary
and capricious and contrary to
congressional intent. They stated that
the rule would inappropriately
advantage asylum seekers coming from
Mexico and Canada. Commenters
similarly asserted that the proposed rule
would advantage those coming from
countries where direct flights to the
United States are available and those
who could afford to purchase tickets on
such flights. They asserted that there
was no rationale as to why asylum
seekers travelling by air with one or
more layovers in another country
should be treated differently from those
who took a direct flight. And they
further expressed concern that the
proposed factor would be particularly
onerous on women and LGBTQ asylum
seekers.
Commenters averred that the
proposed factor of transit through more
than one country conflicts with Federal
court precedent. Specifically,
commenters noted that a Federal district
court invalidated a prior regulation
concerning a third country transit ban.
Commenters expressed concern that the
Departments are trying to implement the
ban a second time by making it a factor
in discretionary determinations and
asserted that the proposed provision
would likewise be struck down by the
courts.
Commenters expressed concern with
two of the NPRM’s proposed exceptions
to the proposed third country transit
factor. First, one commenter contended
that exempting travel through countries
that are not party to the 1951
Convention relating to the Status of
Refugees, the 1967 Protocol relating to
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the Status of Refugees, or the
Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment
or Punishment is overly narrow.
Specifically, the commenter argued that
since 146 countries are party to the 1951
convention and 147 countries are party
to the Protocol, the exception would be
inapplicable to many asylum seekers’
journeys. Second, commenters
expressed concern that the proposed
exception of applying for asylum in
countries visited en route to the United
States is not reasonable. Commenters
asserted that the asylum systems of
many nations through which asylum
seekers commonly travel (such as
Guatemala, Honduras, and El Salvador)
are not well developed and that the
countries are sometimes just as
dangerous as the ones from which they
are fleeing.
Response: The Departments disagree
that this factor is arbitrary and
capricious or contrary to congressional
intent. Although not a bar, this
discretionary factor is consistent with
case law regarding firm resettlement and
safe third countries. See 85 FR at 36284.
Further, taken together with the
exceptions, the factor is consistent with
section 208(a)(2)(A) of the Act, 8 U.S.C.
1158(a)(2)(A).
Similar to the aforementioned factors
that consider whether an alien stayed in
one country for more than 14 days and
whether an alien failed to seek
protection in a country through which
the alien transited en route to the
United States, this factor aims to ensure
that asylum is available for those who
have an urgent need for protection. The
Departments generally believe that
aliens with legitimate asylum claims
would not forego the opportunity to
seek protection in countries through
which they traveled if they had an
urgent need. However, the Departments
acknowledge that circumstances may
exist in which an alien did, in fact,
travel through more than one country
and has an urgent need for asylum;
accordingly, the Departments outlined
three exceptions to this factor, see 85 FR
at 36284; 8 CFR 208.13(d)(2)(i)(A)(1)–
(3), (B)(1)–(3), 1208.13(d)(2)(i)(A)(1)–(3),
(B)(1)–(3), in addition to the general
consideration of extraordinary
circumstances or exceptional and
extremely unusual hardship that may
result if the application is denied. See
85 FR at 36283–84. For these reasons,
the Departments did not promulgate this
factor in an arbitrary and capricious
manner.
Relatedly, this factor does not
improperly advantage asylum seekers
from Canada, Mexico, or countries with
direct flights to the United States. As
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background, asylum and refugee
provisions were incorporated into U.S.
law based on the United States’
international obligations, in part, from
the 1951 Convention relating to the
Status of Refugees and 1967 Protocol.
Signatories to those agreements
comprise an ‘‘international regime of
refugee protection.’’ UNHCR,
Implementation of the 1951 Convention
and the 1967 Protocol Relating to the
Status of Refugees: II. Background, ¶ 3,
EC/SCP/54 (July 7, 1989), https://
www.unhcr.org/en-us/excom/scip/
3ae68cbe4/implementation-1951convention-1967-protocol-relatingstatus-refugees.html. To that end, the
Departments believe this system
operates to ensure aliens may apply for
protection as soon as possible, not to
ensure that aliens receive protection
specifically from the United States.
Congress has authorized the
Departments to bar an alien from
applying for asylum in the United States
if the alien may be removed to a third
country that affords a full and fair
process for determining asylum claims
or equivalent temporary protections,
pursuant to a bilateral or multilateral
agreement. INA 208(a)(2)(A), 8 U.S.C.
1158(a)(2)(A). The United States shares
the burden of processing asylum claims
with other countries pursuant to various
agreements. See, e.g., Agreement
Between the Government of Canada and
the Government of the United States of
America for Cooperation in the
Examination of Refugee Status Claims
from Nationals of Third Countries, Dec.
5, 2002, https://www.canada.ca/en/
immigration-refugees-citizenship/
corporate/mandate/policiesoperational-instructions-agreements/
agreements/safe-third-countryagreement/final-text.html; DHS, Fact
Sheet: DHS Agreements with
Guatemala, Honduras, and El Salvador,
https://www.dhs.gov/sites/default/files/
publications/19_1028_opa_factsheetnorthern-central-america-agreements_
v2.pdf. Thus, asylum seekers from
countries in closer proximity to the
United States or with direct flights to
the United States are not ‘‘advantaged,’’
and asylum seekers from countries that
are farther away from the United States
or without direct flights to the United
States are not ‘‘punished.’’ If anything,
aliens from countries farther away may
have more opportunities to seek
protection than those whose closest—or
potentially only—option is the United
States. In an ‘‘international regime of
refugee protection,’’ it makes sense that
aliens closer to the United States may
obtain asylum more easily in the United
States, just as aliens closer to other
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countries may obtain asylum more
easily in those countries. Including this
factor will encourage aliens to seek
asylum in countries that are closest to
them and encourage all treaty
signatories to do their fair share in
providing safe harbor for refugees.
For discussion of this rule’s effect on
women and LGBTQ asylum seekers, see
Section II.C.1.3 of this preamble. The
Departments note here, however, that
the rule applies to all asylum seekers
regardless of gender or sexual
orientation.
Moreover, this factor is not an
eligibility bar for asylum; it is merely
one factor to be considered as relevant,
along with various other factors
outlined in the rule. The previous
rulemaking cited by commenters,
Asylum Eligibility and Procedural
Modifications, 84 FR 33829 (July 16,
2019), barred asylum relief to aliens
who failed to apply for protection in a
third country through which they
traveled en route to the United States.
While that rule encompasses similar
considerations, it is fundamentally
different because the 2019 rule
constituted a mandatory bar to asylum.
This rule considers this factor as part of
an adjudicator’s discretionary analysis.
Adverse judicial treatment of the 2019
rule does not directly apply to this
rulemaking, which the Departments
propose to issue under a different
statutory authority. See E. Bay
Sanctuary Covenant, 964 F.3d at 849
(distinguishing ‘‘the broad discretion to
deny asylum to aliens who are eligible
for asylum’’ from the narrower
‘‘discretion to prescribe criteria for
eligibility’’).
The Departments disagree with
commenters that the exception for
aliens who were present in or transited
through countries that were, at the
relevant time, not parties to the Refugee
Convention, Refugee Protocol, or CAT is
too narrow. That exception is fashioned
to ensure that aliens have an
opportunity to apply for protection—
whether that be in the United States or
in a country through which they transit.
If a country does not offer such
protection, then an alien would not be
held to that standard and could avail
themselves of the third exception.
Regarding comments that the exceptions
to this factor are insufficient due to
danger in and underdevelopment of
most countries through which aliens
travel en route to the United States, the
Departments note that, by becoming
party to those treaties, the third
countries through which an alien may
have transited are obligated by treaty to
provide protection from removal to
individuals who are likely to face
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persecution on account of a protected
ground or torture. See also Section
III.C.4.7.2 of this preamble, supra
(discussing the availability of protection
in countries outside the United States
through which an alien may transit).
Accordingly, the Departments believe
the rule is consistent with section 208
of the Act (8 U.S.C. 1158). The
Departments note that regardless of
whether an alien claims any of the
exceptions, an alien may still assert that
denial of their asylum application
would result in extraordinary
circumstances or produce exceptional
and extremely unusual hardship.
4.7.6. Subject to § 1208.13(c) But for the
Reversal, Vacatur, Expungement, or
Modification of a Conviction or
Sentence
Comment: Commenters expressed
general concerns with the provision of
the proposed regulation relating to
reversed or vacated criminal
convictions, asserting that it would lead
to many asylum applications being
inappropriately denied.
One commenter asserted that the
proposed regulation would
inappropriately create a categorical
approach to considering vacated
convictions in discretionary
determinations. The commenter
asserted that adjudicators should
consider vacated convictions on a caseby-case basis and argued that a vacated
conviction could provide positive
equities that should be considered.
Commenters asserted that the
proposed regulation is inconsistent with
due process. Specifically, one
commenter asserted that the proposed
regulation would bar from asylum relief
individuals who had criminal sentences
that were vacated, reversed, expunged,
or modified unless there was an express
finding that the person is not guilty. The
commenter asserted that there could be
instances where a prosecutor decides to
decline to pursue a case further after
learning of an underlying error in the
criminal proceedings without first
making a determination as to the
defendant’s innocence or guilt. The
commenter asserted that the proposed
regulation could cause some individuals
in this position with otherwise
meritorious claims to be barred from
asylum. The commenter cited Nelson v.
Colorado, 137 S. Ct. 1249, 1255–56
(2017), and argued that such an outcome
would violate due process principles.
One commenter expressed concern
that the proposed regulation is
inconsistent with the INA and the BIA
decision, Matter of Devison, 22 I&N Dec.
1362 (BIA 2000). The commenter
asserted that the Act and precedent
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establish that juvenile charges and
convictions are not criminal convictions
and thus should not be considered
under the proposed regulation.
Similarly, the commenter cited research
suggesting that a child’s comprehension
of the consequences for engaging in
criminal activity varies based on age.
Accordingly, the commenter asserted,
individuals should not be subjected to
excessive punishments for actions that
they took when they were young.
Response: As an initial point, the
Departments note that this provision is
fully consistent with long-standing case
law allowing adjudicators to
appropriately consider as an adverse
discretionary factor ‘‘criminal conduct
which has not culminated in a final
conviction for purposes of the Act.’’
Matter of Thomas, 21 I&N Dec. 20, 23–
24 (BIA 1995) (collecting cases); cf.
Villanueva-Franco v. INS, 802 F.2d 327,
329–30 (9th Cir. 1986) (finding that the
Board could consider alien’s extensive
criminal record, which included an
expunged felony conviction for
assaulting a police officer, in weighing
whether voluntary departure was
merited as a matter of discretion);
Parcham v. INS, 769 F.2d 1001, 1005
(4th Cir. 1985) (‘‘Evidence of an alien’s
conduct, without a conviction, may be
considered in denying the discretionary
relief of voluntary departure.’’); Matter
of Seda, 17 I&N Dec. 550, 554 (BIA
1980) (noting that ‘‘a plea of guilty [that]
results in something less than a
conviction’’ is ‘‘a significant adverse
factor to be considered in whether a
favorable exercise of discretion is
warranted’’ for voluntary departure),
overruled on other grounds by Matter of
Ozkok, 19 I&N Dec. 546, 552 (BIA 1988).
Commenters did not persuasively
explain why the Departments should
abandon this long-standing principle in
considering all conduct in making a
discretionary determination, especially
conduct that initially led to a criminal
conviction.
Additionally, commenters’ concerns
that this factor will result in improper
denials of asylum applications are
speculative. This factor is not a bar to
asylum. Compare Procedures for
Asylum and Bars to Asylum Eligibility,
84 FR 69640, 69654–56 (Dec. 19, 2019)
(proposing additional bars to asylum
eligibility based on criminal convictions
and clarifying when an order vacating or
modifying a conviction or sentence will
preclude the application of the
proposed bars). Considered relative to
all the other factors proposed in NPRM,
outcomes will vary on a case-by-case
basis, given consideration of
extraordinary circumstances or
exceptional and unusual hardship
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resulting from a denial of asylum. 85 FR
at 36283.
The Departments disagree that this
factor creates a ‘‘categorical approach,’’
as commenters alleged. A categorical
approach often applies when
determining whether a particular
conviction qualifies as an offense that
would render the alien ineligible for
discretionary relief. 8 CFR 208.13(c),
1208.13(c); see Kawashima v. Holder,
565 U.S. 478, 483 (2012). This factor
merely counsels adjudicators that if a
conviction qualifies, it should be
considered an adverse factor
notwithstanding any subsequent vacatur
or reversal of that sentence (unless the
alien was found not guilty). But this rule
takes no position on what approach
should apply—categorical or
circumstance-specific—in determining
whether a conviction would so qualify.
Moreover, this factor does not affect
existing case law allowing the
consideration of criminal activity as a
discretionary factor, even when that
activity has not resulted in a conviction.
The rule, as proposed and in this final
iteration, however, considers this factor
as relevant to each case, along with
consideration of extraordinary
circumstances or exceptional and
extremely unusual hardship that may
befall an alien if asylum is denied. In
this way, the rule is consistent with the
commenter’s suggestion that criminal
activity must be considered on a caseby-case basis.
The rule does not violate due process.
Consistent with long-standing case law,
the rule requires adjudicators to
consider, as part of the discretionary
analysis, convictions that remain valid
for immigration purposes. See 85 FR at
36284. Due process requires that an
alien receive a full and fair hearing that
provides a meaningful opportunity to be
heard. See Kerciku v. INS, 314 F.3d 913,
917 (7th Cir. 2003). This rule does not
violate due process because it does not
deprive aliens of their right to a hearing
before an immigration judge, 8 CFR
1240.10, or their right to appeal to the
BIA, 8 CFR 1003.1(b).
Moreover, because asylum is a
discretionary form of relief, aliens have
no constitutionally protected interest in
a grant of asylum. See Nativi-Gomez v.
Ashcroft, 344 F.3d 805, 807–09 (8th Cir.
2003) (explaining that an alien has no
expectation that discretionary relief will
be granted and, consequently, no
protected liberty interest in such relief
(citing Ashki v. INS, 233 F.3d 913, 921
(6th Cir. 2000)). Accordingly, this rule
presents distinct issues from Nelson,
137 S. Ct. at 1255–56, cited by a
commenter. Nelson holds only that a
state may not continue to deprive a
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person of his property—there,
thousands of dollars in costs, fees, and
restitution—after his conviction has
been reversed or vacated. The case
applied the balancing test in Mathews v.
Eldridge, 424 U.S. 319 (1976), which
balances the private interest affected,
the risk of erroneous deprivation of such
interest through procedures used, and
the governmental interest at stake.
Because, unlike the monetary exactions
at issue in Nelson, the rule affects no
constitutionally protected liberty or
property interest, that case and the
Mathews balancing test do not apply.
The Departments will continue to
apply Matter of Devison, 22 I&N Dec.
1362 (BIA 2000), as relevant; however,
the commenter misunderstands the
holding in that case. In that case, as
referenced by a commenter, the BIA
held that an adjudication as a ‘‘youthful
offender’’ constituted a determination of
juvenile delinquency rather than a
conviction under section 101(a)(48)(A)
of the Act, 8 U.S.C. 1101(a)(48)(A).
Matter of Devison, 22 I&N Dec. at 1366.
‘‘In its reasoning, the Board drew a
critical distinction between a finding of
delinquency, which involves ‘status’
rather than guilt or innocence, and
deferred adjudication or expungement.
Deferred adjudications constitute
convictions under the INA while
findings of delinquency do not.’’ Uritsky
v. Gonzales, 399 F.3d 728, 730 (6th Cir.
2005) (describing the BIA’s holding in
Matter of Devison) (internal citation
omitted). Accordingly, juvenile
adjudications of delinquency will
continue to be evaluated in accordance
with applicable statutes and regulations.
But, because Matter of Devison does not
hold that juvenile convictions cannot
qualify as criminal convictions under
the Act, the Departments decline to
apply it as suggested by the commenter.
The rule does not change or reinterpret
the definition or disturb case law
regarding criminal convictions; in fact,
the rule codifies long-standing case law
through promulgation of this factor. See
85 FR at 36284. To the extent
commenters expressed disagreement
with the definition of ‘‘conviction’’
under the Act, that issue is outside the
scope of this rulemaking.
Finally, to the extent commenters
queried whether particular types of
cases with specific facts would
necessarily be denied, the Departments
find such queries speculative or
hypothetical. Moreover, the
Departments do not generally provide
advisory opinions on asylum
applications, especially in a rulemaking.
Rather, the Departments expect that
their adjudicators will address each case
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based on its own particular facts and the
applicable law.
4.7.7. More Than One Year of Unlawful
Presence in the United States Prior To
Filing an Application for Asylum
Comment: Commenters generally
expressed concern that consideration of
unlawful presence in discretionary
determinations would lead to the denial
of most asylum applications. One
commenter expressed concern that the
proposed provision fails to account for
practical realities such as official ports
of entry being ‘‘effectively closed’’ to
asylum seekers for years and that it
could take more than a year to recover
from the trauma that led an individual
to flee his or her country.
Commenters asserted that inclusion of
the proposed unlawful presence factor
in discretionary determination is ultra
vires. Specifically, commenters noted
that section 208(a)(2)(d) of the Act (8
U.S.C. 1158(a)(2)(d)) provides two
instances in which an asylum
application can be filed outside of the
one-year deadline: (1) Changed
circumstances that affect eligibility for
asylum, and (2) extraordinary
circumstances relating to the delay of
filing the application within one year.
Commenters asserted that the proposed
regulation would frustrate this statutory
framework because a person who filed
more than one year after his or her last
entry into the United States but meets
one of the above-identified exceptions
could still see their application denied
under the proposed rule as a matter of
discretion. Commenters also noted that
there could be instances where the
exceptions would not be applicable
until after the one-year deadline has
expired. Commenters stated that
deadline exceptions are especially
important for LGBTQ asylum seekers.
Commenters stated that the process to
understanding one’s identity as an
LGBTQ individual can take more than
one year and requires safety, security,
and a support system that is often not
available during flight from their home
countries. Similarly, commenters
asserted that it could take over a year to
detect an HIV infection because of the
need for ‘‘culturally competent and
clinically appropriate’’ medical care that
is often not available to asylum seekers
outside of the United States.
Commenters argued that the proposed
regulation conflicts with congressional
intent. One commenter detailed the
legislative history surrounding the oneyear filing deadline. Specifically, the
commenter noted that the Senate
version of the bill in which the deadline
was debated raised the deadline from 30
days to one year and that an amendment
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to the House version changed the
wording of one of the exceptions from
‘‘changed country conditions’’ to
‘‘personal circumstances’’ in order to
broaden the exception for applications
that would be accepted after the
statutory deadline. The commenter also
highlighted a floor speech that the
commenter argued evidenced
congressional intent to create broad
exceptions to the one-year deadline in
order to reduce the chance of arbitrary
denials.
One commenter argued that the
proposed regulation conflicts with
agency policy. Specifically, the
commenter argued that in Matter of Y–
C–, 23 I&N Dec. 286, 287 (BIA 2002), the
BIA stated that a failure to file within
the one-year deadline does not result in
an absolute bar to filing an asylum
application. The commenter also
asserted that the proposed regulation is
in conflict with 8 CFR 208.4(a)(4)–(5)
and 8 CFR 1208(a)(4)–(5), which, the
commenter asserted, provide broad
definitions for the changed and
extraordinary circumstances exceptions.
The commenter similarly asserted that
the proposed regulation is in conflict
with 8 CFR 208.4(a)(2)(B) and 8 CFR
1208.4(a)(2)(B), which require
applicants to establish the exceptions
‘‘to the satisfaction’’ of the adjudicator.
The commenter noted that USCIS
guidance states the standard is one of
‘‘reasonableness,’’ which, the
commenter asserted, is lower than that
of ‘‘clear and convincing evidence.’’ The
commenter asserted that USCIS’s
articulation of the standard evidences
agency acknowledgement of
congressional intent to have the
exceptions be broadly available.
One commenter asserted that the
proposed regulation is inconsistent with
the United States’ obligations under the
1967 Protocol. Specifically, the
commenter asserted that the UNHCR
Executive Committee opposed the oneyear filing deadline when it was under
consideration because it was concerned
with the impact it would have on the
ability of the United States to offer
protection to those fleeing persecution.
The commenter similarly asserted that
President Clinton opposed the one-year
filing deadline out of a concern for it
being inconsistent with international
treaty obligations.
Response: This factor, like the other
factors, is not a bar to asylum. The
Departments proposed this factor as one
of many that an adjudicator must
consider when determining whether an
asylum application warrants a favorable
exercise of discretion. 85 FR at 36283.
Commenters’ concerns that
consideration of this factor would result
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in the denial of most asylum
applications are speculative, untethered
to the inherent case-by-case nature of
asylum adjudications, and based on the
erroneous underlying premise that this
factor functions as an eligibility bar.
Moreover, this factor would, of its
own force, result in the denial of only
a small number, if any, of asylum
claims. For aliens who entered the
United States unlawfully and who
accrue at least one year of unlawful
presence, the statutory one-year bar in
INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B),
would likely apply independently,
regardless of this provision. And aliens
who arrive in the United States lawfully
and maintain lawful status do not
accrue unlawful presence and, thus,
would not be subject to this provision.
INA 212(a)(9)(B)(ii), 8 U.S.C.
1182(a)(9)(B)(ii). Even if such aliens fell
out of status, their previous status may
demonstrate extraordinary
circumstances, 8 CFR 208.4(a)(5)(iv),
1208.4(a)(5)(iv), which would excuse
the statutory one-year filing deadline for
a ‘‘reasonable period,’’ and that
‘‘reasonable period’’ is likely to be less
than the one year of unlawful presence
required to trigger this provision. See
Asylum Procedures, 65 FR 76121,
76123–24 (Dec. 6, 2000) (‘‘Generally, the
Department expects an asylum-seeker to
apply as soon as possible after
expiration of his or her valid status, and
failure to do so will result in rejection
of the asylum application. Clearly,
waiting six months or longer after
expiration or termination of status
would not be considered reasonable.’’).
Commenters’ concerns also do not
account for the exceptions to the accrual
of unlawful presence, INA
212(a)(9)(B)(iii), 8 U.S.C.
1182(a)(9)(B)(iii), or for situations in
which the Attorney General or Secretary
may grant an asylum application
notwithstanding this factor. In short,
commenters’ concerns that this
provision will result in the denial of
most asylum application is wholly
unfounded.
This factor is consistent with the Act.
The rule preserves consideration of the
two statutory provisions, cited by
commenters, in which aliens may file an
asylum application outside of the oneyear deadline—changed circumstances
and extraordinary circumstances. See 85
FR at 36285. Further, the rule provides
consideration of whether exceptional
and extremely unusual hardship may
befall an alien if asylum was denied. For
the discrete populations referenced by
the commenters who file outside of the
one-year deadline, adjudicators may
consider those circumstances in
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accordance with the rule.64
Accordingly, the rule does not frustrate
the statutory framework.
The Departments disagree that the
rule conflicts with congressional intent
and agency policy. First, the
Departments note that legislative history
is secondary to the text of the statute
itself. See Park ‘N Fly, Inc., 469 U.S. at
194 (‘‘Statutory construction must begin
with the language employed by
Congress and the assumption that the
ordinary meaning of that language
accurately expresses the legislative
purpose.’’). The Supreme Court has
explained the difficulty in examining
legislative history because, oftentimes,
both support and opposition may be
found, thereby ‘‘creat[ing] more
confusion than clarity.’’ Lamie v. U.S.
Trustee, 540 U.S. 526, 539 (2004); see
also Milner v. Dep’t of Navy, 562 U.S.
562, 572 (2011) (‘‘We will not take the
opposite tack of allowing ambiguous
legislative history to muddy clear
statutory language.’’). The Departments
read the plain language of the statute
conferring discretionary authority to the
Attorney General to adjudicate asylum
applications in promulgating this
section of the rule, which guides the
exercise of such discretion through
consideration of various factors.
Accordingly, in regard to this particular
regulatory provision, the Departments
rely on the text of the statute rather than
the legislative history.
Second, the rule does not conflict
with agency policy. This factor, as
previously explained, does not function
as an absolute bar to asylum; therefore,
it does not conflict with case law
holding that extraordinary
circumstances may excuse untimely
filing. Moreover, this factor does not
conflict with current regulations, as
alleged by a commenter. The rule does
not change the definitions for changed
circumstances or extraordinary
circumstances in 8 CFR 208.4(a)(4)–(5),
1208.4(a)(4)–(5), and the rule repeatedly
stated that the adjudicator will consider
this factor, along with all of the factors,
as part of the discretionary analysis.
Thus, it does not offend 8 CFR
208.4(a)(2)(B), 1208.4(a)(2)(B).
In regard to one commenter’s concern
that the rule’s ‘‘clear and convincing
evidence’’ standard would displace
USCIS’s current ‘‘reasonableness
standard’’ for excusing a late-filed
application, the commenter conflates
the burden for showing extraordinary
circumstances excusing the general oneyear filing deadline with the burden for
showing exceptional and extremely
64 See supra Section II.C.1.3 for further discussion
on vulnerable populations.
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unusual hardship warranting an
exercise of discretion by the Secretary or
Attorney General. Compare 8 CFR
208.4(a)(5), 1208.4(a)(5) (‘‘The burden of
proof is on the applicant to establish to
the satisfaction of the asylum officer, the
immigration judge, or the Board of
Immigration Appeals . . . that the delay
was reasonable under the
circumstances’’), with 8 CFR
208.13(d)(2)(ii), 1208.13(d)(2)(ii)
(Secretary or Attorney General may
favorably exercise discretion where one
or more adverse discretionary factors are
present in ‘‘cases in which an alien, by
clear and convincing evidence,
demonstrates that the denial of the
application for asylum would result in
exceptional and extremely unusual
hardship to the alien’’). The two
standards do not conflict because they
apply in different contexts and serve
different purposes.65 The ‘‘to the
satisfaction of the asylum officer’’
standard reflects the statutory
requirement that an alien must
demonstrate extraordinary
circumstances ‘‘to the satisfaction of the
Attorney General’’ to excuse a late-filed
asylum application. INA 208(a)(2)(D), 8
U.S.C. 1158(a)(2)(D). It reflects a
showing to be made by the alien in
order to receive initial consideration of
the asylum application, irrespective of
its merits. The ‘‘clear and convincing
evidence’’ standard reflects the showing
necessary to warrant the Secretary’s or
Attorney General’s favorable exercise of
discretion when any significantly
adverse factor—whether an unpaid tax
obligation, or the denial of two previous
applications—is present. This standard
is consistent with prior standards set for
the application of that discretion to
immigration benefits. See 8 CFR
212.7(d), 1212.7(d). It represents a
concluding consideration to determine
whether a grant of asylum is ultimately
appropriate and goes directly to the
merits of the asylum application. The
two standards therefore do not conflict.
The rule does not circumvent the
United States’ obligations under the
1967 Protocol. In accordance with its
non-refoulement obligations under the
1967 Protocol, the United States
continues to offer statutory withholding
of removal and protection under the
65 For example, an alien may establish ineffective
assistance of counsel as an extraordinary
circumstance to excuse a failure to meet the oneyear asylum application filing deadline. 8 CFR
208.4(a)(5)(iii), 1208.4(a)(5)(iii). That showing,
however, simply allows the application to be filed
and says little about whether the application should
ultimately be granted as a matter of discretion,
particularly if there are unrelated adverse factors to
be considered, such as unpaid tax obligations. 8
CFR 208.13(d)(2)(i)(E)(2), 1208.13(d)(2)(i)(E)(2).
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CAT regulations.66 The Departments
also find commenters’ assertions
unpersuasive that the UNHCR Executive
Committee and former-President
Clinton opposed the one-year deadline.
As an initial matter, concerns regarding
solely the one-year deadline are outside
the scope of this regulation because the
rule does not amend the deadline, nor
could it. And, in any event, the
Departments are not aware that any
court has endorsed the UNHCR
Executive Committee’s and President
Clinton’s theory that the existing oneyear time bar on asylum applications
violates international law.
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4.7.8. Tax Violations
Comment: Commenters asserted that
tax violations are not related to the
merits of an asylum application and that
the proposed regulation would punish
asylum seekers for not understanding
tax law. Commenters asserted that
another result of EAD regulations is that
many asylum seekers work in the
informal economy and are paid ‘‘off the
books’’ to support themselves while
their applications are pending.
Commenters argued that it is not
reasonable to expect asylum seekers
(some of whom, one commenter noted,
do not speak English) to navigate the
complexities of tax law to determine if
they are required to file taxes. Another
commenter asserted that even if an
asylum seeker determined that he or she
was not required to file, it would be
difficult prove in court due to
employment in the informal economy.
The commenter also noted that in
seeking to comply with the proposed
rule, asylum seekers may turn to, and be
defrauded by, notarios.
One commenter asserted that,
contrary to the NPRM’s reasoning,
consideration of this factor would
require more adjudicative time.
Specifically, the commenter asserted
that longer asylum interviews and
hearings would be required to
determine whether an asylum seeker
was required to file taxes.
Commenters further asserted that
immigration judges are not qualified to
66 See R–S–C– v. Sessions, 869 F.3d 1176, 1188
n.11 (10th Cir. 2017) (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) (similar);
Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir.
2016) (similar); Maldonado, 786 F.3d at 1162
(explaining that Article 3 of the CAT, which sets
out the non-refoulement obligations of parties, was
implemented in the United States by the FARRA
and its implementing regulations). For further
discussion on international law principles as they
relate to this rulemaking, see section II.C.6.8 infra.
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make determinations as to whether an
individual is required to file taxes and
that by granting them such power the
proposed rule would infringe upon the
province of the Department of the
Treasury. Commenters asserted that the
proposed rule would open the DOJ to
numerous and costly lawsuits under the
APA where plaintiffs would allege that
an immigration judge’s misapplication
of the tax code led to denials of asylum
applications. Moreover, commenters
argued that such lawsuits would
‘‘effectively bankrupt’’ the United
States.
Commenters asserted that the
proposed provisions relating to tax
violations would violate the U.S.
Constitution in two ways. First,
commenters argued that the proposed
provisions conflict with the Eighth
Amendment’s proscription against cruel
and unusual punishment. Specifically,
commenters asserted that if an applicant
presents a meritorious claim, it would
be cruel and unusual punishment to
consider the ‘‘minor civil error’’ of not
filing taxes on time a ‘‘strict liability
offense’’ that completely bars the
applicant from asylum protection.
Second, commenters argued that the
proposed regulation would violate the
Equal Protection Clause because the
proposed rule would create harsher
penalties for asylum seekers who do not
file than for citizens and LPRs.
Specifically, commenters asserted that
by barring individuals from eligibility
for asylum protection, the proposed rule
would create harsher penalties for
asylum seekers for tax non-compliance
than for citizens and LPRs who would
not face such severe consequences.
Commenters also asserted that many
asylum seekers would not be able to
comply with the proposed tax
provisions due to USCIS’s rules
pertaining to Employment
Authorization Documents (‘‘EAD’’).
Commenters asserted that under the
EAD rules, it is not possible for asylum
seekers to receive a social security
number (‘‘SSN’’) prior to obtaining an
EAD. One commenter asserted that the
IRS website is unclear on whether
asylum seekers without EADs would be
eligible to receive Individual Taxpayer
Identification Numbers (‘‘ITIN’’). The
commenter asserted that even if an
asylum seeker is eligible for an SSN or
an ITIN, it could still be difficult for the
applicant to obtain the identity
documents needed to apply for an SSN
or an ITIN from his or her home
country.
Response: In general, the comments
on this provision suggest either that
aliens seeking asylum should be
excused from filing Federal, state, or
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local income tax returns or that the
Departments should ignore clear
violations of law when aliens fail to do
so. Neither suggestion is well-taken by
the Departments, as either
countenancing or ignoring violations of
the law is inconsistent with each’s
mission. Moreover, the comments fail to
acknowledge clear case law that income
tax violations are a significant adverse
discretionary factor in the immigration
adjudication context. See, e.g., Matter of
A–H–, 23 I&N Dec. 774, 782–83 (A.G.
2005) (noting that tax violations ‘‘weigh
against asylum’’ because they exhibit
‘‘disrespect for the rule of law’’); cf. In
re Jean Gilmert Leal, 2014 WL 4966499,
*2 (BIA Sept. 9, 2014) (noting in the
context of an application for adjustment
of status that it is ‘‘well settled’’ that
‘‘failure [to file tax returns] is a negative
discretionary factor because it reflects
poorly on the applicant’s respect for the
rule of law and his sense of obligation
to his community’’).
The Departments also note that
consideration of tax returns filed by
aliens are already enshrined in multiple
places in immigration law. See, e.g., 8
CFR 210.3(c)(3) (alien applicant for
legalization program may establish
proof of employment through, inter alia,
Federal or state income tax returns); id.
214.2(a)(4) (alien dependents of certain
visa holders who obtain employment
authorization ‘‘are responsible for
payment of all Federal, state and local
income, employment and related taxes
and Social Security contributions on
any remuneration received’’); id.
214.2(5)(ii)(E) (restricting employment
eligibility for certain visa dependents
when the proposed employment is
contrary to the interest of the United
States, defined as, inter alia,
employment of visa holders or
dependents ‘‘who cannot establish that
they have paid taxes and social security
on income from current or previous
United States employment’’); id.
214.2(g)(4), (5)(ii)(E) (same, but for a
different visa category); id.
244.9(a)(2)(i), 1244.9(a)(2)(i) (income tax
returns may serve as proof of residence
for purposes of an application for
Temporary Protected Status (‘‘TPS’’));
id. 1244.20(f)(1) (adjudicator may
require proof of filing an income tax
return before granting a fee waiver for a
TPS application); id.
1245.13(e)(3)(iii)(E) (alien applicant for
adjustment of status may establish proof
of physical presence in the United
States through, inter alia, income tax
records). To the extent that commenters
raised concerns about an alien’s ability
to navigate existing tax systems in the
United States—a question that is beyond
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the scope of this rule—they neither
acknowledged the many existing
provisions linking aliens, benefits, and
income tax returns nor persuasively
explained why adherence to tax laws is
an inappropriate discretionary factor to
consider in the context of the rule.
The Departments disagree with
commenters regarding the relation of tax
violations to the statutory discretionary
analysis. As the proposed rule
explained, the Departments see no
concern with treating an asylum
applicant’s failure to file tax forms,
when required by law, as a negative
factor in an asylum adjudication when
all other individuals required to file tax
returns in the United States are subject
to negative consequences for failure to
file required tax forms. See 85 FR at
36284. The Departments believe that
adherence to U.S. tax law is applicable
to a favorable exercise of discretion, and
this factor evaluates such adherence as
part of an adjudicator’s discretionary
analysis.
The Departments find commenters’
concerns associated with working in the
‘‘informal economy’’ to be unpersuasive.
Aside from the fact that working
without authorization is unlawful, the
Departments emphasize the potential
dangers of working without
authorization, including exploitation,
and, thus, strongly discourage aliens
from doing so. Although not the
purpose of this regulation, if the rule
deters aliens from working without
authorization, then the Departments
find that to be a positive unintended
consequence. Further, to the extent that
commenters assert this rule will have
negative consequences on aliens who
are violating the law—either by working
without authorization or by failing to
file tax returns—the Departments find
continuing illegal activity to be an
insufficiently persuasive basis to alter
the rule.
To the extent that commenters are
opposed to the EAD regulations or
expressed concern in regard to notario
fraud, such concerns are outside the
scope of this rulemaking. Moreover,
aliens who require an EAD but do not
possess one should not be engaged in
employment, and aliens who have not
engaged in employment will—unless
they have another source of taxable
income—generally not be required to
file income tax returns that are the
subject of the rule. Further, the
Departments recognize that notario
fraud exists, but it exists independently
of the rule and has existed for many
years. To the extent that notario fraud
exists in tax preparation services, again,
that fraud exists outside of this rule and
flows from long-standing state and
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Federal tax obligations, not any
provision proposed in the rule. To the
extent that commenters oppose this
portion of the rule because they believe
it will lead aliens to engage in unlawful
behavior (i.e., working without an EAD),
the Departments note that nothing in the
rule requires any individual to engage in
unlawful behavior. Similarly, to the
extent that commenters oppose the rule
because they believe it will cause aliens
to fulfill an existing legal obligation (i.e.,
filing income tax returns) by utilizing
individuals who themselves may engage
in unlawful behavior (i.e., notarios), the
Departments also note that nothing in
the rule requires aliens to hire
individuals who engage in illegal
behavior. Further, even if aliens turn to
notarios to prepare and file tax returns,
they would do so not in response to the
rule, but in response to the myriad laws
documented above that already
incentivize or require aliens to file
income tax returns. Moreover, under
Matter of A–H–, 23 I&N at 782–83,
immigration judges may already
consider tax violations as a significantly
adverse factor, and commenters point to
no evidence of their predicted dire
consequences from that decision. The
Departments therefore believe any such
speculative harm is outweighed by the
policy benefits of codifying this factor
by rule and providing clear guidance to
adjudicators about how to weigh this
factor when exercising discretion to
grant or deny asylum. In short,
commenters’ concerns minimize
personal responsibility and agency, are
outside the scope of the rulemaking, and
are outweighed by the policy benefits of
the rule.
Commenters’ concerns about tax law
are similarly outside the scope of this
rulemaking. Everyone, U.S. citizens and
non-citizens alike, are required to
comply with the tax laws. See 85 FR at
36284 (citing 26 U.S.C. 6012, 7701(b);
26 CFR 1.6012–1(a)(1)(ii), (b)). This rule
does not change tax law, which, as
relevant to this rulemaking, requires
certain aliens to file tax forms without
regard to their primary language or the
complexity of the tax code.
Nevertheless, the IRS has assistance
available in multiple languages, see
Internal Revenue Serv., Help Available
at IRS.gov in Different Languages and
Formats (last updated Apr. 3, 2020),
https://www.irs.gov/newsroom/helpavailable-at-irsgov-in-differentlanguages-and-formats, and there are
numerous legitimate agencies, clinics,
and nonprofits that can also be solicited
for assistance with tax law compliance,
see, e.g., Internal Revenue Serv., Free
Tax Return Preparation for Qualifying
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Taxpayers (last updated Nov. 9, 2020),
https://www.irs.gov/individuals/freetax-return-preparation-for-qualifyingtaxpayers (discussing the IRS’s
Volunteer Income Tax Assistance
(‘‘VITA’’) program); see also Internal
Revenue Serv., IRS Publication 3676–B,
https://www.irs.gov/pub/irs-pdf/
p3676bsp.pdf (explaining the types of
tax returns prepared under the VITA
program). This rule requires
consideration of an asylum applicant’s
compliance with tax laws as part of the
adjudicator’s discretionary analysis and
merely provides direction to
adjudicators regarding how to assess, as
a discretionary factor, an alien’s failure
to adhere to the law. It does not
substantively change tax law in any
way.
The Departments disagree with
commenters’ concerns that evaluating
this factor will require more
adjudicative time. As discussed above,
consideration of a failure to file income
tax returns is already an adverse factor
for purposes of asylum adjudications.
See Matter of A–H–, 23 I&N at 783.
Thus, its further codification in
applicable regulations will not
appreciably require additional
adjudicatory time. Further, even if it
did, the benefit of clarity and guidance
provided by this rule to the
discretionary analysis outweighs any
minimal, additional adjudicatory time.
The Departments are confident that
asylum officers and immigration judges
possess the competence and
professionalism necessary to timely
interpret and apply the relevant
regulations and statutes when
considering this factor. See 8 CFR
1003.10(b) (‘‘immigration judges shall
exercise their independent judgment
and discretion’’). Immigration judges
have undergone extensive training;
further, immigration judges already
interpret and apply complex criminal
law as it affects an alien’s immigration
status. In light of this, the Departments
disagree with commenters who claim
that immigration judges are not
qualified to make determinations based
on this factor. Relatedly, the Department
declines to address commenters’
speculative assertions that
misapplication of the tax code by
immigration judges will open up the
Departments to litigation, which will, in
turn, bankrupt the Departments. As
discussed, supra, the Departments have
already been considering the failure to
file income tax returns as a
discretionary factor for many years, and
such considerations have not led to the
dire consequences predicted by
commenters.
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Likewise, the Departments disagree
that this factor improperly infringes on
the purview of the Treasury
Department. This factor evaluates the
tax status of aliens only as it applies to
their immigration status, which is
clearly within the jurisdiction of the
Departments. 8 CFR 208.2, 208.9(a),
1208.2, 1003.10(b). This factor does not
determine tax-related responsibilities or
consequences for such aliens.
Commenters misapply the Eighth
Amendment’s protection against cruel
and unusual punishment. The Eighth
Amendment applies in the context of
criminal punishments, protecting
against disproportional punishments as
they relate to the offense. See Roper v.
Simmons, 543 U.S. 551, 560 (2005)
(‘‘[T]he Eighth Amendment guarantees
individuals the right not to be subjected
to excessive sanctions. The right flows
from the basic precept of justice that
punishment for crime should be
graduated and proportioned to the
offense.’’ (cleaned up)).
Denial of an asylum application,
however, is not a criminal punishment.
As an initial matter, immigration
proceedings are civil in nature. See INS
v. Lopez-Mendoza, 468 U.S. 1032, 1038–
39 (1984) (‘‘A deportation proceeding is
a purely civil action[.]’’). Courts have
held the Eighth Amendment
inapplicable to deportation because, as
a civil proceeding, it is not a criminal
punishment. See Sunday v. Att’y Gen.
U.S., 832 F.3d 211, 219 n.8 (3d Cir.
2016) (collecting cases); Elia v.
Gonzales, 431 F.3d 268, 276 (6th Cir.
2005); Bassett v. U.S. Immigration and
Naturalization Serv., 581 F.2d 1385,
1387–88 (10th Cir. 1978); cf. LopezMendoza, 468 U.S. at 1038–39. The
underlying principle of these cases is
that the power to exclude aliens through
deportation constitutes an ‘‘exercise of
the sovereign’s power to determine the
conditions upon which an alien may
reside in this country,’’ rather than an
exercise of penal power. Trop v. Dulles,
356 U.S. 86, 98, 101 (1958) (holding that
Congress cannot strip citizenship as a
punishment under the Eighth
Amendment, but distinguishing
denaturalization of a citizen from
deportation of an alien); see also Fong
Yue Ting v. United States, 149 U.S. 698,
705 (1893) (noting that the power to
exclude aliens is an inherent function of
sovereignty).
Accordingly, denial of asylum,
regardless of the reasoning underlying
such denial, cannot be construed as a
criminal punishment subject to the
Eighth Amendment because it is
adjudicated in a civil proceeding as a
form of discretionary relief. Further, this
factor is not a ‘‘strict liability offense,’’
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as asserted by the commenters, because
it is only a factor to consider as part of
the discretionary component of asylum
eligibility under the Act. INA
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); see
85 FR at 36283.
Commenters also misapply the Equal
Protection Clause. This rule applies to
all aliens and does not impose any
classifications that would trigger
heightened scrutiny under the clause.
Thus, this factor does not offend
principles of equal protection under the
Constitution.
Finally, to the extent that commenters
are concerned certain aliens may have
difficulties meetings their tax
obligations due to DHS’s EAD rules, the
Departments again note that these
discretionary factors are not bars to
eligibility. The Departments note,
however, that asylum seekers who lack
an EAD should generally not have a tax
liability as they are prohibited from
engaging in employment. Any other
comments regarding specific IRS
requirements for the issuance of SSNs or
ITINs are outside the scope of this rule.
4.7.9. Two or More Prior Asylum
Applications Denied for Any Reason
Comment: One commenter noted that
there are many reasons that an asylum
applicant may have had two or more
prior asylum applications denied,
including ineffective assistance of
counsel, mental disability that
prevented the applicant from properly
articulating the claim, and pursuing the
claim pro se. The commenter asserted
that it would be inappropriate in such
circumstances to deny future bona fide
asylum applications.
One commenter asserted that it was
inappropriate to include the proposed
provision concerning denial of two or
more asylum applications as a factor in
discretionary determinations. Instead,
the commenter argued, the presence of
such a factor should be considered on
a case-by-case basis and together with
all of the circumstances.
Response: This factor, like the other
factors, is considered under the totality
of the circumstances. Further, it is not
a bar to asylum; it is one of various
factors that adjudicators should
consider in determining whether an
application merits a favorable exercise
of discretion.
The Departments reiterate that
consideration of this factor, as well as
the other factors, does not affect the
adjudicator’s ability to consider whether
extraordinary circumstances exist or
whether denial of asylum would result
in exceptional and extremely unusual
hardship to the alien. 85 FR at 36285;
8 CFR 208.13(d)(2)(ii), 1208.13(d)(2)(ii).
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Accordingly, an adjudicator may
consider the circumstances referenced
by the commenter—ineffective
assistance of counsel, mental disability,
lack of counsel—and determine whether
they constitute extraordinary
circumstances. Further, the Departments
reiterate that such aliens may still apply
for other forms of relief, such as nondiscretionary withholding of removal
and protection under the CAT.
4.7.10. Withdrawn a Prior Asylum
Application With Prejudice or Been
Found To Have Abandoned a Prior
Asylum Application
Comment: One commenter asserted
that the proposed provisions concerning
withdrawn and abandoned asylum
applications are in conflict with a true
discretionary determination.
Specifically, the commenter asserted
that discretionary determinations
require consideration of the factor in
light of the totality of circumstances, as
opposed to the proposed ‘‘strict
liability’’ standard.
Commenters asserted that, contrary to
the NPRM’s reasoning, there could be
many valid reasons that an applicant
would choose to withdraw or abandon
an asylum application. One commenter
noted that pursuing a family-based visa
or Special Immigrant Juvenile (‘‘SIJ’’)
status are two such examples. Another
commenter noted that asylum seekers
could be forced to abandon applications
for reasons beyond their control,
including a failure by the government to
inform the asylum seeker of a court
date, governmental notice that did not
correctly state the time and place of a
hearing, or a proceeding occurring in a
language a respondent did not
understand. Another commenter
asserted that MPP has caused some
asylum seekers at the southern border to
abandon their applications. Specifically,
the commenter asserted that some
asylum seekers who had been returned
to Mexico under MPP were
subsequently kidnapped, which caused
them to miss their hearings. The
commenter asserted that immigration
judges have been instructed to enter an
order of removal in such instances, even
when the judge has serious concerns
that the asylum seeker did not appear as
a result of kidnapping or violence.
One commenter acknowledged the
existence of notarios and other bad
actors who seek to abuse the asylum
system by filing asylum applications
without their clients’ knowledge or
consent and by engaging in ‘‘ten year
visa’’ schemes. Rather than addressing
abuse, the commenter argued that the
proposed regulation would punish
asylum seekers who have been victims
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of such fraud because it could result in
future applications being rejected on
discretionary grounds.
One commenter asserted that asylum
offices have ‘‘piloted projects’’
encouraging representatives to waive
the asylum interview and have the
matter referred directly to an
immigration court. The commenter
asserted that applicants may have relied
on such action by asylum offices to
assume the government did not have an
objection to filing an asylum application
for the purpose of being placed in
removal proceedings. The commenter
asserted that ICE should initiate removal
proceedings in such situations if the
individual has ‘‘compelling reasons’’ to
pursue cancellation of removal.
Response: The Departments reiterate
that this factor, along with all the other
factors, is considered as part of the
discretionary analysis. The rule does not
propose a ‘‘strict liability standard,’’ as
alleged by commenters, and this factor’s
presence does not bar asylum. The
NPRM stated clearly that ‘‘[i]f the
adjudicator determines that any of these
nine circumstances apply during the
course of the discretionary review, the
adjudicator may nevertheless favorably
exercise discretion in extraordinary
circumstances, such as those involving
national security or foreign policy
considerations, or if the alien
demonstrates, by clear and convincing
evidence, that the denial of asylum
would result in an exceptional and
extremely unusual hardship to the
alien.’’ See 85 FR at 36283–84.
Accordingly, while the presence of this
factor constitutes an adverse factor,
adjudicators will consider extraordinary
circumstances or exceptional and
extremely unusual hardship—of which
commenters referenced numerous
examples—that may have led an
applicant to withdraw or abandon a
prior application.
This rule does not ‘‘punish’’ asylum
seekers for the conduct of their
attorneys. Although the actions of an
attorney may bind an alien absent
egregious circumstances, Matter of
Velasquez, 19 I&N at 377, nothing in the
rule prohibits an alien from either
alleging such circumstances to avoid the
withdrawal or raising a claim of
ineffective assistance of counsel.67 If an
67 An alien may also file a claim with DOJ’s Fraud
and Abuse Prevention Program (Program), which
investigates complaints of fraud, scams, and
unauthorized practitioners and addresses these
issues within EOIR. See EOIR, Fraud and Abuse
Prevention Program (last updated Mar. 4, 2020),
https://www.justice.gov/eoir/fraud-and-abuseprevention-program. The Program also supports
investigations into fraud and unauthorized practice,
prosecutions, and disciplinary proceedings initiated
by local, state, and Federal law enforcement and
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alien has concerns about the conduct of
his or her representative, the alien
should file an ineffective assistance of
counsel claim or immigration fraud
claim. See, e.g., Sow v. U.S. Att’y Gen.,
949 F.3d 1312, 1318–19 (11th Cir. 2020)
(ineffective assistance of counsel); see
also Viridiana v. Holder, 646 F.3d 1230,
1238–39 (9th Cir. 2011) (distinguishing
between an ineffective assistance of
counsel claim and immigration
consultant fraud and explaining that
fraud by an immigration consultant may
constitute an extraordinary
circumstance). Overall, however,
concerns about the impact of
unscrupulous attorneys are largely
speculative and remain capable of
appropriate redress. Thus, the
Departments decline to preemptively
attempt to resolve speculative or
hypothetical concerns.
Further, should unusual
circumstances warrant, applicants may
present evidence so that adjudicators
may consider whether it constitutes an
extraordinary circumstance or
exceptional and extremely unusual
hardship, as previously described.
Viridiana, 646 F.3d at 1238–39.
Accordingly, the Departments disagree
that consideration of this factor
punishes asylum seekers who are
victims of fraud.
Finally, regarding commenters’
notation that asylum seekers may have
relied on previous USCIS pilot programs
to assume the government did not have
an objection to filing an asylum
application for the purpose of being
placed in removal proceedings, the
Departments disagree that it would ever
have been appropriate or authorized to
file an asylum application without an
actual fear of persecution or torture and
an intent to seek such relief or
protection. Indeed, the I–589 form itself
requires the alien’s attestation as to the
truth of the information provided and
an acknowledgement of the
consequences of filing a frivolous
application.
4.7.11. Failed To Attend an Interview
Regarding His or Her Asylum
Application
Comment: Commenters asserted that
the proposed provision concerning
failure to attend an interview regarding
his or her asylum application is unfair,
and that presence of the proposed factor
should be one factor considered in
context with the totality of the
circumstances.
disciplinary authorities. Id. From the efforts of this
Program, and others, the Departments seek to
ensure that aliens in proceedings before them are
not victims to unscrupulous behavior by their
representatives.
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Commenters asserted that the
proposed ‘‘extraordinary
circumstances’’ exception is unfair
because it would not recognize valid
explanations that, as one commenter
noted, do meet the current ‘‘good cause’’
standard. For example, one commenter
asserted that valid exceptions that may
not rise to the level of extraordinary
circumstances include lack of child care
on the day of the interview, issues with
public transportation, medical issues, or
an interpreter cancelling at the last
minute. One commenter asserted that
the NPRM does not clarify what
explanations would rise to the level of
extraordinary circumstances.
One commenter asserted that the
proposed regulation would increase the
court backlog and that USCIS factors in
the possibility that applicants may not
appear for interviews to ensure that no
interview slot is wasted. Specifically,
the commenter asserted that under
current USCIS policy, USCIS will
typically wait 46 days before turning
over a case to an immigration court, so
as to give the applicant time to establish
good cause and reschedule a missed
interview. By not giving USCIS such
flexibility, the commenter argued, more
cases would be referred to the
immigration courts, thereby increasing
the backlog.
One commenter expressed concern
with the proposed exception regarding
the mailing of notices. The commenter
argued that it is unfair to require
applicants to prove that the government
sent the notice to the correct address.
The commenter also asserted that it is
important for USCIS to send the notice
to both the applicant and the applicant’s
representative. By just sending the
notice to a representative, the
commenter argued, a representative who
had a falling out with his or her client
(as a result of, the commenter
highlighted, ineffective assistance of
counsel or dispute over payment) may
not inform the applicant of an upcoming
interview, which could cause the
applicant to miss the interview. The
commenter noted that in the current
COVID–19 environment, a
representative may not be able to go to
the office to receive mail in a timely
fashion, which means that some
applicants may not learn of the
interview until it is too late. Conversely,
the commenter argued, sending the
notice only to applicants could lead to
missed interviews because applicants
who do not understand English may
disregard the notice due to a
misunderstanding of its importance.
Response: This factor is not an
absolute bar to asylum; instead, this
factor is considered as part of the
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adjudicator’s discretionary analysis. The
proposed rule clearly stated that
presence of this factor constitutes an
adverse factor, 85 FR at 36283, not an
asylum bar. Further, the alien may argue
that (1) exceptional circumstances
prevented the alien from attending the
interview or (2) the interview notice was
not mailed to the last address provided
by the alien or the alien’s representative
and that neither received notice of the
interview. See 8 CFR
208.13(d)(2)(i)(H)(1)–(2),
1208.13(d)(2)(i)(H)(1)–(2) (proposed).
Such exceptions are evidence that this
factor does not constitute a bar to
asylum.
The exceptions provided in proposed
8 CFR 208.13(d)(2)(i)(H)(1),
1208.13(d)(2)(i)(H)(1) broadly allow for
‘‘exceptional circumstances.’’ If the rule
identified exact circumstances sufficient
to negate this factor—departing the
United States or withdrawing the
application for another reason, as
suggested by the commenter—it would
unnecessarily limit aliens to a narrow
set of permissible reasons for why an
alien might have missed an interview.
The Departments recognize that a
number of reasons may cause an alien’s
absence at an interview, including
unanticipated circumstances by the
Departments, and the broad language
allows for such possibility. Contrary to
the commenter’s allegations, the
Departments included language
specifically referencing failure to
receive the notice. See 8 CFR
208.13(d)(2)(i)(H)(2),
1208.13(d)(2)(i)(H)(2) (proposed).
This factor is not arbitrary or unfair.
The current administrative process
required after an alien misses an
interview demonstrates the necessity of
this factor’s inclusion in a discretionary
analysis. While asylum officers may
currently follow a process for missed
interviews, as commenters described,
missed interviews increase overall
inefficiencies because a case does not
timely progress as the Departments
intend. Commenters’ reasoning that the
rule increases inefficiencies at the
hearing stage in place of rescheduling
the interview in the first instance is
nonsensical. If a missed interview is
rescheduled, the case is prolonged at the
outset, thereby increasing overall time
to adjudicate the application. Moreover,
the application may still be adjudicated
in a hearing at a later date, adding even
more time overall for adjudication. If a
missed interview triggers scheduling of
a hearing, as outlined in this rule, the
case efficiently proceeds to the hearing
stage where an adjudicator will balance
all factors, including the missed
interview, in a discretionary analysis. At
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bottom, the rule encourages aliens to
attend their interviews after filing an
asylum application, which increases the
likelihood of being granted asylum and,
thus, reduces the likelihood of cases
being referred to an immigration judge.
Accordingly, the Departments disagree
that this factor is arbitrary or unfair or
would increase the backlog. Rather, the
current system allows aliens to prolong
adjudication of their applications at the
expense of slowing the entire system,
such that other aliens fail to receive
timely adjudication of their
applications. The Departments believe
this current system is unfair and seek to
resolve these inefficiencies through this
rulemaking.
As commenters aptly pointed out,
these cases may involve significant
issues that must be determined and
further explored in an interview. The
interview is a vital step in adjudication
of an asylum application. See DHS,
Establishing Good Cause or Exceptional
Circumstances (last updated Aug. 25,
2020), https://www.uscis.gov/
humanitarian/refugees-and-asylum/
asylum/establishing-good-cause-orexceptional-circumstances (‘‘You must
attend your scheduled asylum interview
or the asylum office will treat your case
as a missed interview (failure to
appear).’’). Other regulatory provisions
already attest to the importance of this
interview through imposition of blunt
consequences. See, e.g., 8 CFR
208.7(a)(iv)(D), 1208.7(a)(4) (providing
that an alien will be denied an EAD
upon failure to appear for an interview,
absent extraordinary circumstances); see
also 8 CFR 208.10(b)(1), 1208.10
(providing that failure to attend an
interview may result in ‘‘dismissal of
the application’’). In addition, aliens
who are inadmissible or deportable and
fail to attend their interview risk being
deemed to have waived their right to an
interview, the dismissal of their
application, and being placed in
removal proceedings where they may
ultimately be ordered removed by an
immigration judge. 8 CFR 208.14(c)(1).
The NPRM’s consideration of this factor
further reflects the urgency and
importance of attending such interviews
but for the most exceptional reasons.
For that reason, and not, as commenters
alleged, to punish asylum seekers, the
Departments include it as a factor for
consideration.
Commenters’ concerns about
problems that may arise between an
alien and his or her representative are
speculative. Regardless of the
rulemaking, such concerns are not
without redress: an alien could file an
ineffective assistance of counsel claim,
see, e.g., Sow, 949 F.3d at 1318–19, or
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an alien could claim that immigration
consultant fraud (or the like) is an
extraordinary circumstances, see
Viridiana, 646 F.3d at 1238–39.
Commenters’ concerns about aliens
providing a correct address to the
Departments are also beyond the scope
of this rulemaking. Aliens are already
required to notify DHS of changes of
address, INA 265, 8 U.S.C. 1305, and
may face criminal, INA 266(b), 8 U.S.C.
1306(b), or civil, INA 237(a)(3)(A), 8
U.S.C. 1227(a)(3)(A), repercussions for
not doing so. The rule does not alter the
long-standing requirement that aliens
notify the Government of their current
address.
This exception employs a lower
standard of preponderance of the
evidence. Meeting such burden varies
depending on the case; therefore, the
Departments decline to expand on the
exact method of proof or documents
necessary to meet that burden.
4.7.12. Subject to a Final Order of
Removal, Deportation, or Exclusion and
Did Not File a Motion To Reopen To
Seek Asylum Based on Changed
Country Conditions Within One Year of
the Changes in Country Conditions
Comment: Commenters expressed
concern that the proposed discretionary
factor pertaining to failure to file a
motion to reopen after a final order had
been entered and within one year since
changed country conditions emerged
would lead to the denial of most asylum
applications. As with other proposed
discretionary factors, commenters
asserted that the proposed rule was not
creating a true discretionary
determination as a result of the weight
given to the presence of this proposed
factor. One commenter asserted that by
giving this and other proposed factors
significant negative weight, the
Departments would be inappropriately
deviating from Matter of Pula, which,
the commenter argued, is wellestablished precedent. Commenters
asserted that the proposed discretionary
factor should be considered on a caseby-case basis and in context with all the
circumstances.
One commenter asserted that the
proposed factor is ultra vires and
conflicts with congressional intent
because it ‘‘directly contradicts’’ section
240(c)(7)(C)(ii) of the Act, 8 U.S.C.
1229a(c)(7)(C)(ii), which states
circumstances for which there are no
time limits for filing a motion to reopen.
The commenter argued that the one case
cited by the NPRM in support of the
proposed provision, Wang v. BIA, 508
F.3d 710, 715–16 (2d Cir. 2007),
concerned a different provision of the
INA. Specifically, the commenter
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asserted that the asylum seeker in Wang
was subject to a 90-day limit on filing
a motion to reopen and was arguing for
equitable tolling in light of ineffective
assistance of counsel. The commenter
thus argued it is ‘‘irrational’’ for the
government to use the case to justify the
regulation.
Another commenter expressed
opposition to the rule because it
presumes that the exact date of a
country condition change can be
precisely determined, which in turn
presumes that country conditions ‘‘turn
on a dime.’’ Because, the commenter
alleged, the NPRM did not provide
guidance on determining when a change
exactly occurs, the commenter predicted
‘‘protracted disputes’’ over when a
change occurs, which would be
‘‘antithetical to judicial economy.’’ One
commenter expressed disagreement
with the NPRM’s reasoning that the
proposed provision would increase
‘‘efficiency in processing.’’ Specifically,
the commenter asserted that the NPRM
failed to explain why adjudicating a
motion to reopen filed 13 months after
the presence of changed country
conditions would be less efficient than
adjudicating a similar motion filed 11
months after the change.
Response: This factor, like all other
factors discussed herein, is part of the
adjudicator’s discretionary analysis. 85
FR at 36285. This factor’s presence does
not bar asylum; an alien who files a
motion to reopen based on changed
country conditions more than one year
following such changed conditions may
still show that extraordinary
circumstances exist or that denial of
asylum would result in an exceptional
and extremely unusual hardship to the
alien. 8 CFR 208.13(d)(2)(ii),
1208.13(d)(2)(ii) (proposed).
Accordingly, applications are indeed
considered on a case-by-case basis, and
concerns that this factor would result in
denial of most asylum applications is
speculative.
Further, commenters did not engage
the Departments’ animating thrust
behind this provision—to discourage
dilatory claims, encourage the timely
adjudication of new claims, and
improve overall efficiency. Those
benefits far outweigh any alleged
concerns raised by commenters,
especially since the presence of
‘‘changed country conditions’’ is a clear
statutory basis for filing a motion to
reopen. INA 240(c)(7)(C)(ii), 8 U.S.C.
1229a(c)(7)(C)(ii). Both the Departments
and aliens have a clear interest in
raising and adjudicating claims for
asylum in a timely fashion. To that end,
there is nothing unreasonable or
inappropriate about considering a
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lengthy delay in raising a claim as an
adverse discretionary factor because
such delays undermine the efficiency of
the overall system and may, as a
secondary effect, delay consideration of
other meritorious claims.
Consideration of this factor does not
impermissibly deviate from Matter of
Pula. As explicitly stated in the NPRM,
the rule’s approach supersedes Matter of
Pula. 85 FR at 36285. Because
‘‘[a]gencies are free to change their
existing policies as long as they provide
a reasoned explanation for the change,’’
Encino Motorcars, LLC, 136 S. Ct. at
2125, the Departments permissibly
superseded Matter of Pula’s approach.
See Section II.C.4.7 of this preamble for
further discussion regarding the
permissibility of superseding that case.
This factor also aligns with the
statute. As commenters correctly stated,
section 240(c)(7)(C)(ii) of the Act, 8
U.S.C. 1229a(c)(7)(C)(ii), provides ‘‘there
is no time limit’’ to file a motion to
reopen to apply for relief under section
208 of the Act, 8 U.S.C. 1158, or section
241(b)(3) of the Act, 8 U.S.C. 1231(b)(3),
based on changed country conditions.
The rule does not institute a time limit
in contravention of the statute.
Nor was the Departments’ reference to
Wang, 508 F.3d at 715–16, irrational.
That case demonstrated the importance
of aliens exercising due diligence in
their cases. The citation was not meant
to illustrate an identical fact pattern
justifying the entire regulation, as one
commenter alleged.
Although the Departments
acknowledge it may be difficult to
ascertain the precise date on which
country conditions changed, the
Departments also do not believe that
ascertaining one specific day is
necessarily required in most cases or
that an inability to ascertain the precise
date undermines the rule’s efficacy.
Even if country circumstances do not
‘‘change on a dime’’ and adjudicators
can project only a range of dates, many
cases would fall clearly inside or
outside the one-year window. For
example, if evidence showed that
country conditions changed over a
three-month period and the applicant
filed two years outside the period, an
adjudicator would be able to find this
adverse factor notwithstanding
difficulty in ascertaining a single day on
which country conditions changed. In
the Departments’ view, the one-year
window provides ample time for aliens
to file a claim. And, in any event, the
Departments doubt that it will be so
difficult to ascertain a precise date in
many cases. When a discrete event—
e.g., a ceasefire in a civil war—changes
a country’s conditions, determining a
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precise date will be straightforward.
Accordingly, the rule would not
produce ‘‘protracted disputes’’ about the
date country conditions changed.
Moreover, commenters did not
plausibly or persuasively explain why
an alien with a genuine well-founded
fear of persecution would delay in filing
an asylum application for a significant
length of time, and it strains credulity
that such an alien would wait more than
a year to seek asylum, absent some
extraordinary circumstance. The rule
requires that the alien exercise due
diligence with regard to the case. 85 FR
at 36285. If, for some reason, the alien
is unable to meet that one-year deadline
for reasons related to commenters’
concerns that pinpointing the exact date
a country condition changed will be
problematic, an alien may present such
an event as an extraordinary
circumstance in accordance with the
rule. See id.
The Departments have a significant
interest in expedient, efficient
adjudication of asylum cases. See
Talamantes-Penalver v. INS, 51 F.3d
133, 137 (8th Cir. 1995) (‘‘Enforcement
of this nation’s immigration laws is
enhanced by the speedy adjudication of
cases and the prompt deportation of
offenders.’’). Establishing this factor
strongly encourages and underscores the
importance of expedient resolution of
asylum cases; however, the Departments
note that expediency and efficiency do
not trump extraordinary circumstances
that may exist or exceptional or
extremely unusual hardship that may
result if asylum is denied.
The Departments have determined
that the appropriate timeframe within
which an alien should be able to file a
motion to reopen based on changed
country conditions is one year from a
changed country condition. Currently,
the regulation at 8 CFR 1208.4(a)(4)(ii)
provides that an alien should file an
asylum application
within a reasonable period, given those
‘‘changed circumstances.’’ If the applicant
can establish that he or she did not did not
become aware of the changed circumstances
until after they occurred, such delayed
awareness shall be taken into account in
determining what constitutes a ‘‘reasonable
period.’’
Case law broadly applies this
‘‘reasonable period’’ standard. See
Pradhan v. Holder, 352 F. App’x. 205,
207 (9th Cir. 2009) (explaining that,
based on the record, the immigration
judge properly denied an asylum
application filed 11 months after the
applicant learned of changed country
conditions and his family kept him
apprised of the political climate in the
country); cf. Ljucovic v. Barr, 796 F.
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App’x. 898, 899 (6th Cir. 2020)
(dismissing for lack of jurisdiction a
petition challenging the BIA’s denial of
a motion to reopen asylum proceedings
four years following awareness of a
changed condition because the
petitioner did not exercise due diligence
and file within a reasonable period of
time). This factor would be no more
difficult to apply than 8 CFR 1208.4’s
‘‘reasonable period’’ standard, and, for
purposes of the discretionary analysis,
this rule determines that a reasonable
period of time is one year within the
date of the changed country condition.
Further, just as 8 CFR 1208.4 allows
adjudicators to consider ‘‘delayed
awareness’’ in evaluating ‘‘what
constitutes a reasonable period’’ when
determining whether an alien may
apply for asylum, this factor similarly
allows adjudicators to consider whether
extraordinary circumstances or
exceptional or extremely unusual
hardship would arise when determining
whether to exercise discretion to grant
or deny asylum.
Because Congress determined it
reasonable for aliens to file an initial
application within one year of arrival,
INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B),
the Departments similarly find it
reasonable to use a one-year timeline,
rather than 11 months or 13 months as
suggested by commenters, in evaluating
this factor as part of a larger
discretionary analysis, subject to the
exceptions previously described. The
Departments recognize that any specific
deadline is inherently both over- and
under-inclusive to some extent, but the
benefits of a clear deadline that is both
familiar to applicants and adjudicators
and straightforward to administer
outweigh any purported benefits
attributable to an unfamiliar and
uncommon deadline—e.g., 13 months—
or one that is more difficult to apply—
e.g., a ‘‘reasonable period’’—particularly
in the context of a discretionary
analysis.
4.8. Firm Resettlement
Comment: Commenters asserted that
the proposed firm resettlement
provisions conflict with international
law. Commenters stated that Congress
considered the language in section
208(b)(A)(vi) of the Act, 8 U.S.C.
1158(b)(A)(vi), to be equivalent to
Article 1E of the Refugee Convention,
which only considered refugees to be
resettled when they permanently took
up residence in a third country or were
afforded rights comparable to third
country nationals. One commenter
stated that the permanent residency
requirement is further evidenced in the
1950 amendments of the Displaced
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Persons Act. See An Act to Amend the
Displaced Persons Act of 1948, Public
Law 81–555, 64 Stat. 219 (1950). The
commenter asserted that the
amendments were designed to ensure
that those who temporarily resided in
parts of Europe following their flight
from Nazi persecution would remain
eligible for protection in the United
States. Under the proposed rules, the
commenter argued, these same
individuals would be inappropriately
barred from asylum.
Commenters expressed concern that,
under proposed 8 CFR 208.15(a)(1),
individuals unaware of third country
resettlement laws in countries through
which they fleetingly passed could be
punished and that those attempting to
firmly resettle in a third country could
face a number of challenges
incompatible with the congressional
intent of the concept of firm
resettlement. Commenters argued, for
example, that those attempting to firmly
resettle could face restrictions on
freedom of movement, unfair
immigration procedures, government
corruption, violence, and the practical
inability to obtain legally guaranteed
documents permitting asylees the right
to live and work in the country while an
application is pending. Commenters
similarly asserted that, contrary to the
NPRM’s reasoning, the number of
resettlement opportunities has not
grown in recent years, and that
considering whether a third country is
a signatory to the Refugee Convention is
not sufficient to determine whether firm
resettlement is possible. A firm
resettlement inquiry, commenters
argued, requires a case-by-case
consideration of the facts and
circumstances.
Commenters asserted that proposed 8
CFR 208.15(a)(1) would replace a clear
standard that is well-established in
Federal case law and international law
with an ambiguous standard that would
require adjudicators to speculate in
regard to what applicants could have
done in third countries through which
they transited. Accordingly,
commenters argued, the proposed
provision would result in lengthy
litigation. One commenter asserted that
the proposed provision is not legally
defensible, as evidenced by the recent
transit bar litigation invalidating a
similar provision.
Commenters also stated opposition to
proposed 8 CFR 208.15(a)(2).
Commenters expressed concern that the
proposed one-year bar would apply
even if there is no possibility of ever
obtaining a permanent or indefinitely
renewable status in the country.
Commenters also asserted that the
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proposed provision would
inappropriately exclude most asylum
seekers who were returned to Mexico
under MPP because MPP often requires
aliens to wait in Mexico for more than
a year. Another commenter stated that
UNHCR estimates that approximately 16
million refugees have spent five years in
countries where they could not be
considered firmly resettled and that
they would be inappropriately barred
from asylum under the proposed
provision. Commenters expressed
concerns that the proposed provision
does not include exceptions for
individuals who are victims of
trafficking, lack the financial means to
leave a third country, or fear
persecution in the third country.
Commenters asserted that examples in
the United States demonstrate the
problems with proposed 8 CFR
208.15(a)(2). Commenters asserted that
recipients of Deferred Action for
Childhood Arrivals—who commenters
noted are granted permission to stay in
the United States in two-year
increments—would be considered
firmly resettled under the proposed rule
even though their status could be
rescinded at any time. Second,
commenters similarly asserted that
many undocumented individuals in the
United States have lived here for
decades, but that they cannot be
considered firmly resettled because they
are denied the opportunity to fully and
meaningfully participate in public life
and they live and work under the fear
of removal.
Commenters opposed proposed 8 CFR
208.15(a)(3). One commenter stated that
the proposed provision is unclear as to
when presence in a country of
citizenship occurred. The commenter
asked, ‘‘[d]oes it mean that the applicant
must have been present there sometime
before coming to the United States,
anytime in their whole lives?’’ The
commenter asserted that it is unfair and
unreasonable to consider someone
firmly resettled in a country of
citizenship without also considering
factors such as whether such individual
has the right to reside in the country
and could be reasonably expected to do
so. Commenters asserted that proposed
8 CFR 208.15(b) conflicts with Matter of
A–G–G–, 25 I&N Dec. 486 (BIA 2011),
which commenters asserted requires
DHS to present evidence that a
mandatory bar applies. Commenters
stated that, under the proposed
provision, if DHS or an immigration
judge raises the issue that the firm
resettlement bar might apply, then the
burden of proof shifts to the respondent.
This burden shifting, commenters
argued, would increase the number of
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unjust asylum application denials
because pro se asylum seekers—
especially non-English speakers and
detainees—lack access to the knowledge
or resources necessary to satisfy their
burden of proof. Moreover, one
commenter stated that if the proposed
provision grants authority to DHS
counsel to determine that firm
resettlement applies, even if an
immigration judge disagrees, then the
subsection would inappropriately usurp
immigration judges’ authority.
One commenter asserted that the
proposed rule would inappropriately
permit the firm resettlement
circumstances of a parent to be imputed
to children and that a child’s case must
be considered separately from his or her
parents’ cases. Commenters similarly
asserted that it is unreasonable to expect
children to comport their movements
and behavior in accordance with the
proposed regulation.
Commenters noted that refugees—in
addition to asylum applicants—are
subject to a statutory bar based on firm
resettlement. See INA 207(c)(1), 8 U.S.C.
1157(c)(1). At least one commenter
suggested that refugee admission
applicants and asylum applicants
should be subject to the same standards.
Commenters noted that, because
Congress enacted laws to protect
refugees and intended the firm
resettlement bar to exclude refugees
from protection only in narrow
circumstances, the proposed standard
for firm resettlement was an ‘‘affront to
Congressional intent.’’
Response: Despite a lengthy history of
international law, regulatory
enactments, and circuit court
interpretations,
see Matter of A–G–G–, 25 I&N Dec. at
489–501 (explaining firm resettlement
history), Congress ultimately codified
the firm resettlement bar to asylum in
IIRIRA without including any specific
firm resettlement requirements, just as it
had previously codified a firm
resettlement bar to refugee admission
without any specific requirements, INA
207(c)(1), 8 U.S.C. 1157(c)(1). Rather,
the statutory language only states that
asylum shall not be granted to an alien
who ‘‘was firmly resettled in another
country prior to arriving in the United
States.’’ INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi). Accordingly, the
Departments are using their regulatory
authority to interpret this ambiguous
statutory language.68 See Matter of
68 The Departments acknowledge that the concept
of firm resettlement is a statutory bar to both
refugee admission, INA 207(c)(1), 8 U.S.C.
1157(c)(1), and the granting of asylum, INA
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi). The two
separate bars were enacted 16 years apart.
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R–A–, 24 I&N Dec. at 631 (explaining
that agencies are not bound by prior
judicial interpretations of ambiguous
statutory interpretations because there is
a presumption that Congress left
statutory ambiguity for the agencies to
resolve). A clearer interpretation will
help adjudicators in making firm
resettlement determinations. Circuit
courts have previously provided
diverging interpretations of the firm
resettlement requirements. See Matter of
A–G–G–, 25 I&N Dec. at 495–500
(explaining differing circuit court
approaches under the prior firm
resettlement regulations).
In addition, as discussed further
herein, efforts by the Board to provide
clarity have not been fully successful, as
its four-step framework reflects an
unwieldy amalgamation of two
competing approaches offered by
Federal courts: The ‘‘direct offer
approach’’ and the ‘‘totality of the
circumstances approach.’’ Id. at 496–98,
501. Further, as described more fully
below, its framework is not directed by
any applicable statute or regulation,69
contains internal tension, is in tension
with other regulations regarding the
parties’ burdens, introduces ambiguous
concepts such as indirect evidence of an
offer of firm resettlement of ‘‘a sufficient
level of clarity and force,’’ id. at 502,
69 Although the Board in Matter of A–G–G–, 25
I&N Dec. at 501, asserted that its framework follows
the language of 8 CFR 1208.15, nothing in the text
of that regulation actually outlines a particular
framework to follow when considering issues of
firm resettlement, and the regulation certainly does
not delineate the four steps put forth by the Board.
Further, the Board’s reading of 8 CFR 1240.8(d) to
suggest that DHS bears the initial burden at step one
of its framework of establishing evidence that the
firm resettlement bar applies, Matter of A–G–G–, 25
I&N Dec. at 502, is likewise atextual, and is further
called into significant doubt by a recent decision of
the Attorney General, see Matter of Negusie, 28 I&N
Dec. 120, 154–55 (A.G. 2020) (‘‘Consistent with the
clear statutory mandate that an alien has the burden
of proving eligibility for immigration relief or
protection, the regulations make plain that if
evidence in the record indicates that [a] bar may
apply, then the applicant bears the additional
burden of proving by a preponderance of the
evidence that it does not. Although the evidence in
the record must raise the possibility that the bar
‘may apply,’ id. § 1240.8(d), neither the statutory
nor the regulatory scheme requires an extensive or
particularized showing of the bar’s potential
applicability, and evidence suggesting the bar’s
applicability may come from either party. While the
immigration judge must determine whether the
evidence indicates that the . . . bar may apply—
and, thus, whether the alien bears the burden of
proving its inapplicability—that determination is an
evidentiary one that does not stem from any burden
on DHS. This conclusion is underscored by other
statutory and regulatory provisions that specify
when DHS is required to assume an evidentiary
burden. Placing an initial burden on DHS to
establish the applicability of the . . . bar would be
contrary to the relevant statutory and regulatory
scheme, and would unnecessarily tax its limited
resources.’’ (footnote, citations, and internal
quotations omitted)).
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and relies principally on the concepts of
an ‘‘offer’’ 70 and of ‘‘acceptance’’ of firm
resettlement, even though the INA does
not require an offer or acceptance for the
provisions of INA 208(b)(2)(A)(vi), 8
U.S.C. 1158(b)(2)(A)(ii), to apply. See
Matter of A–G–G–, 25 I&N Dec. at 501–
03 (discussing the various aspects of its
four-step framework). Ultimately, the
best reading of the Board’s cases is that
the availability of some type of
permanent legal immigration status or
any non-permanent but indefinitely
renewable legal immigration status—
regardless of whether the alien applies
for such status or has such status
offered—is sufficient to raise the
possibility of the firm resettlement bar,
and that reading is incorporated into the
rule.71 See id. at 503 (‘‘The regulations
only require that an offer of firm
resettlement was available, not that the
alien accepted the offer.’’). Based on
these considerations and others, as
described more fully below, the
Departments have concluded that the
current framework—with its case-bycase development and four-step
framework that is divorced from any
statute or regulation—invites confusion
and inconsistent results because of
immigration judges’ potentially
subjective judgments about how the
framework should apply to the
particular evidence in any given case.
The Departments accordingly believe
that the rule-based approach contained
in this final regulation is more
appropriate. 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)).
In interpreting the statutory language,
the Departments considered the history
70 The Board’s efforts to refine the concept of an
‘‘offer’’ have not improved the clarity of the
application of the firm resettlement bar, as
adjudicators may understandably be confused about
how to consider whether an alien accepted an offer
that was ‘‘available,’’ but not necessarily made.
Matter of A–G–G–, 25 I&N Dec. at 502–03. Similarly,
the Board adopted a ‘‘totality of the evidence’’
standard, id. at 503, but did not explain if that
standard was intended to encompass the Federal
courts’ ‘‘totality of the circumstances’’ approach or
to constitute something different.
71 As discussed herein, the Departments
recognize that other parts of Matter of A–G–G– are
superseded by this rule because, inter alia, they are
unwieldy to apply, in tension with other
regulations or with other parts of the decision itself,
do not represent the best implementation of the
statute, do not appreciate the actual availability of
firm resettlement in many countries, and are
outweighed by the benefits of the rule as a policy
matter. Thus, the Departments have provided
‘‘reasoned explanation[s]’’ for their departures from
Matter of A–G–G– to the extent that there are actual
departures. See Encino Motorcars, LLC, 136 S. Ct.
at 2125 (citing Brand X, 545 U.S. at 981–82).
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of the firm resettlement concept and
determined that prior interpretations do
not fully address the need for clarity
and specific delineation of the meaning
of firm resettlement. Moreover, prior
adjudicatory interpretations do not
effectively appreciate the availability of
firm resettlement in many countries.
Thus, the Departments believe that a
broader interpretation of firm
resettlement is necessary to ensure that
the United States’ overburdened asylum
system is available to those with a
genuine need for protection, and not
those who want to live in the United
States for other reasons and simply use
the asylum process as a way to achieve
those goals. See 85 FR at 36285–86. The
Departments’ interpretation also
comports with the overall purpose of
the asylum statute, which is ‘‘not to
provide [applicants] with a broader
choice of safe homelands, but rather, to
protect [refugees] with nowhere else to
turn.’’ Matter of B–R–, 26 I&N Dec. at
122 (quotation marks omitted).
The Departments’ definition creates
three grounds for a finding of firm
resettlement.72 The first ground
captures aliens who have resided, or
could have resided, permanently or
indefinitely in a country but who have
chosen not to pursue such
opportunities. The Departments have
determined that the firm resettlement
bar should apply regardless of whether
the alien received a direct offer of
resettlement from the third country. The
Departments believe that aliens should
reasonably be required to pursue
settlement opportunities when fleeing
persecution and entering a new country,
rather than forum shopping for their
destination. See Matter of A–G–G–, 25
I&N Dec. at 503 (explaining the purpose
of the firm resettlement bar ‘‘is to limit
refugee protection to those with
nowhere else to turn’’). This
requirement is also supported by the
fact that, as discussed in the NPRM, 43
additional countries have signed the
Refugee Convention since 1990,
evincing an increasing ability of an alien
to find safe haven outside his or her
home country. See 85 FR at 36285–86 &
n.41. Contrary to commenters’ claims,
this first ground does not apply to aliens
if the third country grants only
temporary or unstable statuses. For the
first ground of the firm resettlement bar
72 In comparison to the NPRM, this final rule
expands the language in 8 CFR 208.15(a)(1) and
1208.15(a)(1) by breaking the first ground into three
subparagraphs and changing the syntax to improve
readability and clarity and to avoid confusion. The
changes in the final rule are stylistic and do not
reflect an intent to make a substantive change from
the NPRM regarding 8 CFR 208.15(a)(1) and
1208.15(a)(1).
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to apply, the alien must be able to reside
permanently or indefinitely in the third
country, and temporary or unstable
statuses would not meet that definition.
Similarly, in order for this first ground
to apply to aliens who ‘‘could have’’
resided in a permanent or indefinite
status, the immigration judge must make
a finding that the alien was eligible for,
and otherwise would be granted,
permanent or indefinite status under the
laws of the third country. Moreover, the
Departments disagree with commenters
that the rule should retain the exception
for aliens who reside in a third country
but have the conditions of their stay
‘‘substantially and consciously
restricted.’’ See 8 CFR 1208.15(b)
(current). The Departments note that the
language of the current regulation is
more apt to cause confusion because it
is not clear why—or perhaps even
how—a country would offer citizenship
or permanent legal residence to
someone yet ‘‘substantially and
consciously’’ restrict that person’s
residence. Further, the Departments
believe that interpreting the firm
resettlement bar to apply to any type of
permanent or indefinite status advances
the goal of limiting asylum forum
shopping by persons who have the
ability to live in a third country.
The second ground captures aliens
who are living for an extended period of
more than one year in a third country
without suffering persecution. By living
safely in a third country for more than
a year without suffering persecution, the
alien has evinced the ability to live long
term in that country and is thereby
‘‘firmly’’ resettled as interpreted by the
Departments. The dictionary definition
of ‘‘firm’’ is ‘‘securely or solidly fixed in
place,’’ not ‘‘uncertain,’’ and ‘‘not
subject to change or revision.’’ Firm,
Merriam Webster, https://
www.merriam-webster.com/dictionary/
firm. The Departments believe that this
ground reasonably meets this definition,
as an alien who is living in a third
country for more than a year can be
considered to be ‘‘fixed in place’’ and
not thought to be present in the third
country only temporarily.
Consistent with the purpose of the
asylum statute, the Departments believe
that asylum should not be made
available to persons who ‘‘have long
since abandoned’’ traveling to the
United States in their flight from
persecution. See Rosenberg v. Yee Chien
Woo, 402 U.S. 49, 57 n.6 (1971). Rather,
travel to the United States should be
‘‘reasonably proximate’’ to the flight
from persecution and not be interrupted
by ‘‘intervening residence in a third
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country.’’ Id.73 In including this ground,
the Departments do not believe that
legal presence should be a requirement
of firm resettlement, as persons can live
indefinitely without status in a country.
For example, according to a 2017 study,
the median duration of residence for the
United States’ undocumented
population is approximately 15 years.
See Pew Research Center, Mexicans
decline to less than half the U.S.
unauthorized immigrant population for
the first time (June 12, 2019), https://
www.pewresearch.org/fact-tank/2019/
06/12/us-unauthorized-immigrantpopulation-2017/. It is reasonable to
conclude that such persons should be
considered ‘‘firmly resettled’’ in the
United States and do not intend to live
in the United States only temporarily,
and by the same reasoning, aliens who
have resided for long periods in other
countries—even without legal presence
or status—can similarly be considered
‘‘firmly resettled.’’ Further, spending
more than a year in a third country
shows that the alien can support himself
or herself or has the ability to receive
necessary support. Separately, the
Departments note that, contrary to
commenters’ concerns, the second
ground would not apply to physical
residence in Mexico after an alien was
returned to Mexico under the MPP,
because such aliens would already be
considered to have arrived in the United
States. Thus, time spent in Mexico
solely as a direct result of returns to
Mexico after being placed in MPP will
not be considered for purposes of that
specific element of the firm resettlement
bar.74
The Departments also recognize that
this second ground does not follow the
language of the Refugee Convention or
the Refugee Protocol, which require the
alien to be recognized by the third
country as possessing the same rights
and obligations as citizens of that
country. See 1951 Convention Relating
to the Status of Refugees, Art. 1(E). In
codifying the statutory firm resettlement
bar as part of IIRIRA, however, Congress
73 By requiring that an alien live in any ‘‘one’’
third country for more than a year before triggering
this ground, the Departments also recognize that it
would not necessarily exclude aliens who make
their flight in stages, Yee Chien Woo, 402 U.S. at
57 n.6, as aliens who remain in multiple countries
over multiple years before coming to the United
States are unlikely to have their travel to the United
States viewed as ‘‘reasonably proximate’’ to their
flight.
74 An alien who physically resided voluntarily,
and without continuing to suffer persecution, in
Mexico for one year or more after departing the
alien’s country of nationality or last habitual
residence and prior to arrival in or entry into the
United States would potentially be subject to the
bar, regardless of whether the alien was placed in
MPP upon arrival in the United States.
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did not include such a requirement,
and, as a result, the Departments have
chosen to interpret this ambiguous
statutory language as not requiring the
third country to provide the alien with
rights comparable to that of citizens. See
Matter of R–A–, 24 I&N Dec. at 631
(explaining presumption that Congress
left statutory ambiguity for the agencies
to resolve (citing Brand X, 545 U.S. at
982)).
The third ground captures aliens who
maintain, or maintained and then later
renounced, citizenship in a third
country and were present in that
country after fleeing their home country.
By possessing citizenship in a third
country and being physically present in
that country, the alien has established
that he or she has the ability to live with
full citizenship rights in a third country,
negating his or her need to apply for
asylum in the United States. In response
to a commenter’s concerns about the
timing of the alien’s presence in the
third country, the Departments clarify
that the physical presence in the third
country must occur after the alien leaves
the home country where the alleged
persecution occurred or where the wellfounded fear of persecution would
occur and before arriving in the United
States.
Regarding commenters’ concerns
about the burden of proof, the
Departments note that the existing
burden framework outlined by the BIA
is, at the least, not required by statute
and appears to be in significant tension
with existing regulations.75 The burden
associated with the firm resettlement
bar as applied in removal proceedings is
clarified in the existing language of 8
CFR 1240.8(d), which provides that the
respondent has the burden of
establishing eligibility for any requested
75 The Board’s framework also contains internal
tension that has resulted in confusion on this point.
In Matter of A–G–G–, the Board indicated that DHS
bears the burden of making a prima facie showing
that an offer for firm resettlement exists and will
typically do so through the submission of
documentary evidence. Matter of A–G–G–, 25 I&N
Dec. at 501 (‘‘DHS should first secure and produce
direct evidence of governmental documents
indicating an alien’s ability to stay in a country
indefinitely.’’). It then went on to say, however, that
prima facie evidence may already be part of the
record as evidence, including testimony, which is
typically offered by a respondent, not DHS. Id. at
502 n.17. Consequently, immigration judges may
become confused about how to apply the firm
resettlement bar in cases in which the evidence of
record submitted by a respondent, including the
respondent’s testimony, indicates that the bar may
apply but in which DHS has not affirmatively
produced its own evidence of firm resettlement.
This rule resolves that tension, reaffirms that
immigration judges should follow the requirements
of 8 CFR 1240.8 as appropriate, and reiterates that
evidence in the record may raise the applicability
of 8 CFR 1240.8 regardless of who submitted the
evidence.
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benefit or privilege. That regulation then
states that, if ‘‘the evidence indicates
that one or more of the grounds for
mandatory denial’’ of relief may apply,
the alien has the burden of proving that
such grounds do not apply. 8 CFR
1240.8(d). The existing regulation is
thus clear that, if the evidence indicates
that the firm resettlement bar may
apply, then an applicant has the burden
of proving that it does not. Although the
evidence in the record must itself
support the applicability of a bar, the
regulations do not specify who must
introduce that evidence, and relevant
evidence may come from either party.
Moreover, 8 CFR 1240.8(d) does not
specify who may raise an issue of
eligibility, only that the issue may be
raised when the evidence indicates that
a ground should apply. Because it is
illogical to expect an alien applying for
asylum to raise the issue that he or she
is barred from receiving asylum, the rule
appropriately acknowledges the reality
that either DHS or the immigration
judge may raise the issue based on the
evidence, regardless of who submitted
the evidence.
Similarly, although the immigration
judge must determine whether the
evidence indicates that the firm
resettlement bar may apply—and, thus,
whether the alien bears the burden of
proving that it does not apply—that
determination is simply an evidentiary
one and does not place any burden on
DHS. As noted, evidence that ‘‘indicates
that one or more of the grounds for
mandatory denial of the application for
relief may apply [e.g., the firm
resettlement bar],’’ 8 CFR 1240.8(d),
may be in the record based upon
submissions made by either party; the
regulation requires only that evidence
be in the record, not that it be submitted
by DHS. Put more simply, the
regulations do not place an independent
burden on DHS to establish a prima
facie case. This conclusion is
underscored by other regulations that,
in contrast, specify when DHS is
required to assume an evidentiary
burden. See, e.g., 8 CFR 208.13(b)(1)(ii)
(‘‘Burden of proof. In cases in which an
applicant has demonstrated past
persecution under paragraph (b)(1) of
this section, [DHS] shall bear the burden
of establishing by a preponderance of
the evidence the requirements of
paragraphs (b)(1)(i)(A) or (B) of this
section.’’). Placing a prima facie burden
on DHS would be contrary to the
relevant regulatory scheme and would
unnecessarily tax the agency’s limited
resources without any statutory or
regulatory justification, especially when
‘‘[t]he specific facts supporting a
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petitioner’s asylum claim . . . are
peculiarly within the petitioner’s
grasp.’’ Angov, 788 F.3d at 901. To the
extent that commenters asserted that
circuit case law conflicts with the
Departments’ rule, such conflicts would
warrant re-evaluation in appropriate
cases by the circuits under wellestablished principles. See Brand X, 545
U.S. at 982. Further, as noted in the
NPRM, 85 FR at 36286, the rule
overrules prior BIA decisions that are
inconsistent, in accordance with wellestablished principles. See Encino
Motorcars, LLC, 136 S. Ct. at 2125
(‘‘Agencies are free to change their
existing policies as long as they provide
a reasoned explanation for the change.’’
(citing Brand X, 545 U.S. at 981–82)).
In response to one commenter’s
concerns, the burden of proof provision
does not allow DHS to make the final
determination on whether the firm
resettlement bar applies in EOIR
proceedings; that authority continues to
reside with DOJ for aliens whose asylum
applications are referred for review by
an immigration judge. See 8 CFR
208.14(c)(1), 1003.10(b), 1240.1(a)(1)(ii).
In response to concerns about
imputing parents’ firm resettlement to
their minor children, the Departments
note that the BIA has imputed parental
attributes to children under other INA
provisions on multiple occasions. See,
e.g., Holder, 566 U.S. at 595–96 (2012)
(describing various provisions of the Act
in which parental attributes are imputed
to children). Moreover, as noted in the
NPRM, 85 FR at 36286, although the
Departments have not previously
established a settled policy regarding
the imputation of the firm resettlement
of parents to a child, the imputation in
this rule is consistent with both case
law and recognition of the practical
reality that a child generally cannot
form a legal intent to remain in one
place. See, e.g., Matter of Ng, 12 I&N
Dec. 411, 412 (Reg’l Comm’r 1967) (firm
resettlement of father is imputed to a
child who resided with his resettled
family); see also Vang v. INS, 146 F.3d
1114, 1116–17 (9th Cir. 1998) (‘‘We
follow the same principle in
determining whether a minor has firmly
resettled in another country, i.e., we
look to whether the minor’s parents
have firmly resettled in a foreign
country before coming to the United
States, and then derivatively attribute
the parents’ status to the minor.’’).
Here, it is reasonable to assume that
minor children who are traveling with
their parents would remain with their
parents in any third country and,
therefore, should also be subject to the
firm resettlement bar. Moreover, the rule
provides an exception when the alien
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child can establish that he or she could
not have derived any permanent legal
immigration status or any nonpermanent but indefinitely renewable
temporary legal immigration status
(such as asylee, refugee, or similar
status) from his or her parent.76 See 85
FR at 36294; 8 CFR 208.15(b),
1208.15(b).
The Departments acknowledge
comments noting that the NPRM altered
the definition of ‘‘firm resettlement’’
applicable to asylum applicants, but did
not alter the definition applicable to
refugee admission applicants, which is
a distinction the Departments noted in
the NPRM. 85 FR at 36285 n.40. The
Departments did not propose to change
8 CFR 207.1(b) in the NPRM, see id.,
and they do not believe such a change
is warranted in this final rule,
notwithstanding commenters’ concerns
regarding the two definitions.
Although the statutory provisions
applying the firm resettlement bar in the
refugee and asylum contexts are
virtually identical, ‘‘[a] given term in the
same statute may take on distinct
characters from association with distinct
statutory objects calling for different
implementation strategies.’’ Envtl. Def.
v. Duke Energy Corp., 549 U.S. 561, 574
(2007). The United States Refugee
Admissions Program (‘‘USRAP’’) and
the asylum system serve distinct
missions and populations and, thus,
warrant different approaches. The
asylum statute is not designed ‘‘to
provide [applicants] with a broader
choice of safe homelands, but rather, to
protect [refugees] with nowhere else to
turn.’’ Matter of B–R–, 26 I&N Dec. at
122 (quotation marks omitted). In
contrast, the USRAP has long focused
on resolving protracted refugee
situations and providing relief to
refugees who have not been able to find
a durable solution to their need for
protection in the country of first flight.
Moreover, due to the lengthy referral,
vetting, and application process in the
refugee resettlement program, see
generally USCIS, Refugee Processing
and Security Screening (June 3, 2020),
https://www.uscis.gov/humanitarian/
refugees-and-asylum/refugees/refugee76 The Department’s experience in administering
the firm resettlement bar indicates that cases in
which a parent’s firm resettlement would not be
imputed to a minor child would be rare. Even in
those rare cases, however, the Departments’ use of
child-appropriate procedures, as discussed
elsewhere in the rule, which take into account age,
stage of language development, background, and
level of sophistication, would assist the child in
ensuring that the child’s claim is appropriately
considered. See, e.g., USCIS, Interviewing
Procedures for Minor Applicants (Aug. 6, 2020),
https://www.uscis.gov/humanitarian/refugees-andasylum/asylum/minor-children-applying-forasylum-by-themselves.
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processing-and-security-screening, time
spent in a third country or otherwise
awaiting overseas resettlement may not
necessarily indicate that an alien was
firmly resettled in the country hosting
such populations.
Further, as a program explicitly
addressing persons in foreign
countries—rather than a form of relief
available to aliens who arrive at or are
inside the United States—the USRAP
implicates issues of foreign relations
and diplomacy in ways different than
the asylum program. Additionally,
although the current regulatory
definitions of ‘‘firm resettlement’’ are
similar, compare 8 CFR 207.1(b), with 8
CFR 208.15 and 1208.15, they are not
identical. Rather, the definition
applicable to refugee admission
applicants requires that the alien
entered the country of putative
resettlement ‘‘as a consequence of his or
her flight from persecution,’’ 8 CFR
207.1(b), whereas the definition
applicable to asylum applicants
indicates that entry into a country that
was a necessary consequence of flight
from persecution is one element of a
potential exception to the general
definition of ‘‘firm resettlement.’’ In
other words, existing regulations
already recognize distinctions in the
definitions applicable to the two
programs.
In short, although the Departments
acknowledge commenters’ concerns
about the two different definitions, they
do not believe changes to 8 CFR 207.1(b)
are warranted at the present time.
Nevertheless, the Departments do
expect to study the issue closely and, if
appropriate, may propose changes at a
future date.
Finally, the Departments are noting
two additional changes that the final
rule makes regarding the issue of firm
resettlement. First, consistent with the
Departments’ understanding that time
spent in Mexico solely as a direct result
of being returned to Mexico pursuant to
section 235(b)(2)(C) of the Act or of
being subject to metering would not be
counted for purposes of that specific
element of the firm resettlement bar,
that point is being clarified explicitly in
this final rule. Second, EOIR is making
a conforming change to 8 CFR 1244.4(b)
to align it with the both the appropriate
statutory citation and the corresponding
language in 8 CFR 244.4(b). Aliens
described in INA 208(b)(2)(A), 8 U.S.C.
1158(b)(2)(A), including those subject to
the firm resettlement bar contained in
INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi), are ineligible for TPS.
That statutory ineligibility ground is
incorporated into regulations in both
chapter I and chapter V of title 8;
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however, while the title I provision, 8
CFR 244.4(b), cites the correct statutory
provision, INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi), the title V provision, 8
CFR 1244.4(b), maintains an outdated
reference to an incorrect statutory
provision. The final rule corrects that
outdated reference.
4.9. ‘‘Rogue Officials’’/‘‘Color of Law’’
Comment: As an initial matter,
commenters asserted that the terms
‘‘color of law’’ and ‘‘official acting in his
or her official capacity’’ are not
ambiguous and therefore are not open to
agency interpretation. Commenters
asserted that the rule seeks to codify the
BIA’s decision in Matter of O–F–A–S–,
27 I&N Dec. 709 (BIA 2019), vacated by
28 I&N Dec. 35, but that the standard set
out in Matter of O–F–A–S– is an
impossible burden. Specifically,
commenters averred that ‘‘if an official
claims to be acting in an official
capacity, is wearing an official uniform,
or otherwise makes it known to the
applicant that [he or she is] a
government official, a CAT applicant
would have no reason to know whether
the official is acting lawfully or as a
‘rogue’ official.’’ Commenters argued
that to meet his or her burden, an
applicant would have to obtain detailed
information from a government official
who has tortured or threatened him or
her in order to establish that the actor
was not acting in a rogue capacity.
Commenters also argued that the
phrase ‘‘under color of law’’ calls for a
more nuanced determination than the
analysis required by the proposed
regulation or the BIA’s decision in
Matter of O–F–A–S– would indicate.
Quoting Screws v. United States, 325
U.S. 91, 111 (1945), commenters stated
that ‘‘[i]t is clear that under ‘color’ of
law means under ‘pretense’ of law
. . . . If, as suggested, the statute was
designed to embrace only action which
the State in fact authorized, the words
‘under color of any law’ were hardly apt
words to express the idea.’’ Following
this analysis, commenters asserted that
any proposed rule must emphasize that
acting ‘‘under color of law’’ does not
require the government official to be on
duty, following orders, or to be acting
on a matter of official government
business.
Commenters similarly claimed that
the proposed definition of ‘‘rogue
official’’ is contrary to Federal and state
jurisprudence because the proposed rule
dismisses and invalidates the entire
concept of ‘‘color of law’’ as being
synonymous with ‘‘acting in his or her
official capacity.’’ Commenters asserted
that the Supreme Court views the terms
as interchangeable because the
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‘‘traditional definition of acting under
color of state law requires that the
defendant . . . have exercised power
‘possessed by virtue of state law and
made possible only because the
wrongdoer is clothed with the authority
of state law.’ ’’ West v. Atkins, 487 U.S.
42, 49 (1988) (quoting United States v.
Classic, 313 U.S. 299, 326 (1941)).
Commenters explained that, in
alignment with the Supreme Court’s
interpretation, some circuits have
defined ‘‘color of law’’ to mean the
‘‘misuse of power, possessed by virtue
of state law and made possible only
because the wrongdoer is clothed with
the authority of state law.’’ See
Iruegas-Valdez v. Yates, 846 F.3d 806,
812–13 (5th Cir. 2017) (finding that the
public official in question need not be
high-level or follow ‘‘an officially
sanctioned state action’’); Garcia v.
Holder, 756 F.3d 885, 891–92 (5th Cir.
2014); Ramirez-Peyro v. Holder, 574
F.3d 893, 900–01 (8th Cir. 2009). Citing
the Eighth Circuit, commenters asserted
that this means that ‘‘the focus is
whether the official uses their position
of authority to further their actions,
even if for ‘personal’ motives.’’
Ramirez-Peyro, 574 F.3d at 900–01.
Commenters further asserted that the
color-of-law analysis should be one of
‘‘nexus’’—i.e., ‘‘does the conduct relate
to the offender’s official duties?’’
Commenters further quoted RamirezPeyro, 574 F.3d at 901, stating that ‘‘it
is not contrary to the purposes of the
[Convention] and the under-color-of-law
standard to hold Mexico responsible for
the acts of its officials, including lowlevel ones, even when those officials act
in contravention of the nation’s will and
despite the fact that the actions may
take place in circumstances where the
officials should be acting on behalf of
the state in another, legitimate, way.’’
Quoting Khouzam v. Ashcroft, 361 F.3d
161, 171 (2d Cir. 2004), commenters
asserted that, ‘‘when it is a public
official who inflicts severe pain or
suffering, it is only in exceptional cases
that we can expect to be able to
conclude that the acts do not constitute
torture by reason of the official acting
for purely private reasons.’’ Commenters
also cited a recent decision from the
Ninth Circuit Court of Appeals, in
which the court held that even a rogue
official is still a public official for
purposes of the CAT. See XochihuaJaimes v. Barr, 962 F.3d 1175, 1184 (9th
Cir. 2020) (‘‘We rejected BIA’s ‘rogue
official’ exception as inconsistent with
Madrigal [, 716 F.3d at 506.]’’).
Ultimately, commenters argued that
the CAT requires protection for those
that have suffered any act of torture at
the hands of state officials, even ‘‘rogue
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officials,’’ as such evidence
demonstrates that the foreign state
cannot or will not protect the applicant
from torture. Moreover, the commenter
asserted that it does not matter that
some countries cannot control large
numbers of rogue officials. See, e.g.,
Mendoza-Sanchez v. Lynch, 808 F.3d
1182, 1185 (7th Cir. 2015) (‘‘It’s simply
not enough to bar removal if the
[Mexican] government may be trying,
but without much success, to prevent
police from torturing citizens at the
behest of drug gangs.’’). Commenters
averred that the correct inquiry in CAT
claims is whether a government official
committed torture, not whether the
applicant can demonstrate that the
official was not acting in a ‘‘rogue
capacity.’’
Commenters stated that the proposed
changes to the ‘‘rogue official’’ standard
also conflict with the standard
established by the Attorney General in
Matter of O–F–A–S–, 28 I&N Dec. 35
(A.G. 2020), which was issued
subsequent to the proposed rule’s
publication. For example, at least one
commenter stated that the Attorney
General ‘‘rejected’’ the use of the term
‘‘rogue official,’’ while the proposed
rule would codify the use of the same
term. Commenters further stated that the
Attorney General’s decision in Matter of
O–F–A–S– created difficulty in
providing comment on the proposed
rule because it changed the state of the
law that the rule would affect.77
Commenters argued that exempting
public officials from the concept of
acquiescence in instances in which the
public official ‘‘recklessly disregarded
the truth, or negligently failed to
inquire’’ seems indistinguishable from
‘‘willful blindness,’’ a term recognized
by the Second, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, and
Tenth Circuits in the CAT analysis
context. See, e.g., Khouzam, 361 F.3d at
170–71; Myrie v. Att’y Gen. of U.S., 855
F.3d 509, 517 (3rd Cir. 2017), RomeroDonado v. Sessions, 720 Fed. App’x
693, 698 (4th Cir. 2018); Iruegas-Valdez
v. Yates, 846 F.3d 806, 812 (5th Cir.
2017); Torres v. Sessions, 728 Fed.
App’x 584, 588 (6th Cir. 2018); LozanoZuniga v. Lynch, 832 F.3d 822, 831 (7th
Cir. 2016); Fuentes-Erazo v. Sessions,
848 F.3d 847, 852 (8th Cir. 2017); Zheng
v. Ashcroft, 332 F.3d 1186, 1194–95 (9th
Cir. 2003); Medina-Velasquez v.
Sessions, 680 Fed. App’x 744, 750 (10th
Cir. 2017). Commenters asserted that the
rule should instead codify this ‘‘near77 To the extent commenters’ concerns with the
ability to comment may relate to the period of time
provided for comment, the Departments responses
are set forth below in Section II.C.6.3 of this
preamble.
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80367
universal standard.’’ Further,
commenters recommended codifying
court decisions that have found
government acquiescence even where
parts of government have taken
preventive measures. See, e.g.,
Rodriguez-Molinero v. Lynch, 808 F.3d
1134, 1139 (7th Cir. 2015) (noting it is
not required to find the entire Mexican
government complicit); De La Rosa v.
Holder, 598 F.3d 103, 110 (2d Cir.
2010).
In addition, some commenters argued
that the standard to demonstrate
acquiescence is unreasonable because
applicants would be required to
demonstrate the legal duties of a
government official who failed to act
and also demonstrate whether the
official was charged with preventing
those actions but failed to act.
Commenters asserted this would be an
impossible standard to meet.
Commenters also contended that the
proposed rule’s reliance on the Model
Penal Code is irrelevant to what might
occur in a foreign country.
Commenters argued that the proposed
rule’s amendments to 8 CFR
208.18(a)(1), (7) and 1208.18(a)(1), (7)
will prevent many individuals from
meeting the burden to establish
eligibility for protection under the
regulations issued pursuant to the
legislation implementing the CAT.
Commenters were concerned that an
individual would be unable to
determine that an officer is a rogue
officer when ‘‘every discernable fact
(including but not limited to uniforms,
weapons, badges, police cars, etc.)
indicates the officer is legitimate.’’
Therefore, commenters asserted,
requiring this kind of detailed
information would be unreasonable or
impossible. Commenters similarly
asserted that the requirement that an
applicant demonstrate that the
government official who has inflicted
torture did so under color of law and is
not a rogue official ignores the actual
circumstances under which people flee.
Commenters also expressed concern
that individuals who were tortured
would have no recourse because they
would be unable to report the rogue
official to other potentially rogue
officials. For example, commenters
stated that, in many countries (such as
the Democratic Republic of the Congo),
members of the police or military are
intentionally organized into
paramilitary groups so that the
government can deny responsibility for
human rights violations. Commenters
asserted that, in such circumstances,
individuals who are subjected to harm
or in danger of such harm would face an
insurmountable burden of proof.
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Commenters asserted that it is extremely
rare for a government to openly
acknowledge that it condones torture.
Rather, when evidence of torture occurs,
the government will claim the
perpetrator was a ‘‘bad apple’’ who
acted on his or her own. Commenters
asserted that this rule would accept the
‘‘bad apple’’ excuse on its face,
preventing torture victims from
receiving protection. Similarly,
commenters asserted that most
governments would not publicly admit
that they torture their citizens and that,
without such admissions, it would be
difficult for victims of torture to prove
that the injury was caused by a
government official acting in an official
capacity as opposed to on the official’s
private initiative. Commenters also
asserted that the proposed changes
appear specifically to restrict typical
claims from Central America, where
individuals are ‘‘tortured at the hands of
non-state actors such as gangs and
cartels and where government actors are
frequently complicit in these actions.’’
Finally, one commenter asserted that, if
an agency is going to demand such a
high burden to establish torture, the
agency should be the one to take on the
burden of demonstrating the difference
because the agency has more capacity to
obtain the required information than the
individual requesting the relief.
Response: The Departments disagree
with commenters’ assertions that the
term ‘‘acting in an official capacity’’ is
unambiguous and thus not subject to
agency interpretation, as multiple
decisions from the BIA, the Attorney
General, and circuit courts attest. As
demonstrated most recently by the
Attorney General’s decision in Matter of
O–F–A–S–, 28 I&N Dec. at 36–37, the
term ‘‘acting in an official capacity’’ is
a term that has been subject to different
interpretations since it was
implemented in the regulations. See
Regulations Concerning the Convention
Against Torture, 64 FR 8490 (Feb. 19,
1999). As explained by the Attorney
General subsequent to the NPRM,
whether an individual acted in an
official capacity has been the subject of
multiple inaccurate or imprecise
formulations. Matter of O–F–A–S–, 28
I&N Dec. at 36–37. On the one hand,
then-Attorney General Ashcroft first
articulated that the official capacity
requirement means torture ‘‘inflicted
under color of law.’’ Id. at 36.
Subsequently, every Federal court of
appeals to consider the questions has
read the standard in the same manner.
Id. at 37 (citing Garcia, 756 F.3d at 891;
United States v. Belfast, 611 F.3d 783,
808–09 (11th Cir. 2010); Ramirez-Peyro,
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574 F.3d at 900). However, at the same
time, some Federal courts have viewed
immigration judges as applying an
amorphous, different concept of ‘‘rogue
official,’’ which has not been accepted
by circuit courts. Id. (citing Federal
court of appeals decisions reviewing
immigration court decisions applying an
alleged ‘‘rogue official’’ analysis).
As the NPRM made clear, there is not
a ‘‘rogue official’’ exception per se for
CAT protection. 85 FR at 36286. Rather,
‘‘rogue official’’ is simply a shorthand
label for an official who is not acting
under color of law, and the actions of
such an official are not a basis for CAT
protection because the individual is not
acting in an official capacity. The
Attorney General confirmed this view
that a ‘‘rogue official’’ is one who is not
acting under color of law. Matter of O–
F–A–S–, 28 I&N Dec. at 38 (‘‘To the
extent the Board used ‘rogue official’ as
shorthand for someone not acting in an
official capacity, it accurately stated the
law. By definition, the actions of such
officials would not form the basis for a
cognizable claim under the CAT.’’).
Thus, there is no longer any confusion
regarding the definition of a ‘‘rogue
official,’’ and, consistent with the rule,
such an official is one who is not acting
under color of law.
Nevertheless, as the Attorney General
also noted, ‘‘continued use of the ‘rogue
official’ language by the immigration
courts going forward risks confusion
. . . because ‘rogue official’ has been
interpreted to have multiple meanings.’’
Id. Accordingly, the Departments are
removing that term from the final rule
to avoid any further confusion. Its
removal, however, does not result in
any substantive change to the rule.
Regardless of whether an official who is
not acting in an official capacity is
described as a ‘‘rogue official,’’ the
actions of such an official are not
performed under color of law and, thus,
do not form the basis of a cognizable
claim under the CAT.
Regarding commenters’ concerns
about the Attorney General’s decision in
Matter of O–F–A–S–, the Attorney
General determined that it was
necessary to provide a clarification of
the ambiguous term ‘‘acting in an
official capacity’’ without waiting for
the Departments’ NPRM to be finalized.
That he issued his decision does not
prevent the Departments from codifying
that definition subsequently.
Moreover, the Departments disagree
that the Attorney General’s decision in
Matter of O–F–A–S–, 28 I&N Dec. at 35,
conflicts with the language of this rule.
In Matter of O–F–A–S–, the Attorney
General explained that ‘‘acting in an
official capacity’’ means actions
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performed ‘‘under color of law.’’ Id.
This rule amends the current regulatory
language to clarify that the conduct
supporting a CAT claim must be carried
out under color of law, which is fully
consistent with the Attorney General’s
decision. See 8 CFR 208.18(a)(1),
1208.18(a)(1) (expressly using the
phrase ‘‘under color of law’’).78
Therefore, the regulatory text articulates
that the test for determining whether an
individual acted in an official capacity
is whether the official acted under color
of law. See 8 CFR 208.18(a)(1),
1208.18(a)(1).
This amendment aligns the regulatory
language with congressional intent and
circuit case law finding that ‘‘in an
official capacity’’ means ‘‘under color of
law.’’ The Senate, in recommending that
the United States ratify the CAT,
explicitly stated that ‘‘the Convention
applies only to torture that occurs in the
context of governmental authority,
excluding torture that occurs as a
wholly private act or, in terms more
familiar in U.S. law, it applies to torture
inflicted ‘under color of law.’ ’’ S. Exec.
Rep. No. 101–30, at 14 (1990). Further,
as stated by the Attorney General in
Matter of O–F–A–S–, every Federal court
of appeals to consider the question has
held that action ‘‘in an official capacity’’
means action ‘‘under color of law.’’ 28
I&N Dec. at 37 (citing Garcia, 756 F.3d
at 891; Belfast, 611 F.3d at 808–09;
Ramirez-Peyro, 574 F.3d at 900); see
also Ali v. Reno, 237 F.3d 591, 597 (6th
Cir. 2001) (adopting the ‘‘under color of
law’’ standard in an opinion preceding
Matter of Y–L–, 24 I&N Dec. 151).
The Senate’s understanding of
‘‘acquiescence’’ for purposes of the CAT
was that a finding of acquiescence
requires a showing that the public
official was aware of the act and that the
public official had a legal duty to
intervene to prevent the act but failed to
do so. See S. Exec. Rep. No. 101–30, at
14 (‘‘In addition, in our view, a public
78 In clarifying this definition of a public official
as one acting under color of law, the rule also
makes clear that, for purposes of the CAT
regulations, pain or suffering inflicted by, or at the
instigation of or with the consent or acquiescence
of, a public official is not torture unless the act is
done while the official is ‘‘acting in his or her
official capacity. 85 FR at 36287; 8 CFR 208.18(a)(1)
and 1208.18(a)(1). The Departments recognize that
this change departs from the language considered
in Barajas-Romero v. Lynch, 846 F.3d 351, 362–63
(9th Cir. 2017), which allowed for the consideration
of a CAT claim even when the alleged torture was
carried out by a public official not acting in an
official capacity. Nevertheless, the Departments
have provided reasoned explanations for this
regulatory change and, thus, can implement that
change in accordance with well-established
principles. See Encino Motorcars, LLC, 136 S. Ct. at
2125 (‘‘Agencies are free to change their existing
policies as long as they provide a reasoned
explanation for the change.’’).
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official may be deemed to ‘acquiesce’ in
a private act of torture only if the act is
performed with his knowledge and the
public official has a legal duty to
intervene to prevent such activity.’’). As
noted in the NPRM, however, the term
‘‘awareness’’ has led to some confusion.
See 85 FR at 36287 (citing Scarlett v.
Barr, 957 F.3d 316 (2d Cir. 2020)).
Commenters asserted that the
Departments, rather than creating a new
definition for awareness, should instead
codify the ‘‘willful blindness’’ standard
as articulated by the circuit courts of
appeals. But the final rule does just that:
As noted in the NPRM, the Departments
proposed to clarify that, in accordance
with decisions from several courts of
appeals and the BIA, ‘‘ ‘awareness’—as
used in the CAT ‘acquiescence’
definition—requires a finding of either
actual knowledge or willful blindness.’’
85 FR at 36287; see also 8 CFR
208.18(a)(1), 1208.18(a)(1). The
Departments, however, seeking to avoid
further ambiguity, further define the
term ‘‘willful blindness’’ to mean that
the public official or other person acting
in an official capacity was ‘‘aware of a
high probability of activity constituting
torture and deliberately avoided
learning the truth.’’ 85 FR at 36287. The
Departments further clarify that it is not
enough that such a public official acting
in an official capacity or other person
acting in an official capacity was
‘‘mistaken, recklessly disregarded the
truth, or negligently failed to inquire.’’
Id.
As explained in the NPRM, the
Departments’ definition of
‘‘acquiescence’’ aligns with
congressional intent to require both an
actus reus and a mens rea. Id. The
Senate, during ratification of the CAT,
included in its list of understandings
the two elements required for a finding
of acquiescence: Actus reus and mens
rea. See Convention Against Torture and
Other Cruel, Inhuman, or Degrading
Treatment or Punishment, Treaty Doc.
100–20: Hearing Before the S. Comm. on
Foreign Relations, S. Hrg. No. 101–718,
101st Cong., 2d Sess. 14 (1990) (‘‘[T]o be
culpable under the [CAT] . . . the
public official must have had prior
awareness of [the activity constituting
torture] and must have breached his
legal responsibility to intervene to
prevent the activity.’’ (statement of Mark
Richard, Deputy Assist Att’y Gen.,
Criminal Division, Department of
Justice)); U.S. Senate Resolution of
Advice and Consent to Ratification of
the Convention Against Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment, 136 Cong.
Rec. 36198 (1990). The definition
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further aligns with subsequent
understandings that reduced the
requirement from knowledge to mere
awareness. See Zheng, 332 F.3d at 1193
(‘‘The [Senate Committee on Foreign
Relations] stated that the purpose of
requiring awareness, and not
knowledge, ‘is to make it clear that both
actual knowledge and ‘willful
blindness’ fall within the definition of
the term ‘acquiescence.’ ’’).
Regarding commenters’ assertions that
the proposed rule would create a burden
that would be impossible for an
applicant to meet, the Departments note
that, currently, applicants must still
demonstrate a legal duty and that this
requirement does not change with this
final rule. Even when applying the
‘‘willful blindness’’ standard articulated
by various circuit courts of appeals, the
applicant must demonstrate a legal duty
and that the government official
breached that legal duty. See, e.g.,
Khouzam, 361 F.3d at 171 (‘‘From all of
this we discern a clear expression of
Congressional purpose. In terms of state
action, torture requires only that
government officials know of or remain
willfully blind to an act and thereafter
breach their legal responsibility to
prevent it.’’).
Regarding commenters’ concerns
about the burden applicants would have
in establishing that an official was not
a rogue official, the Departments
reiterate that this rule codifies the
analysis that, for an individual to be
acting in an official capacity, he or she
must be acting under color of law. As
stated above, this standard aligns with
the standard required by the Attorney
General in Matter of O–F–A–S–, as well
as the various circuit courts of appeals
to have considered the issue. Therefore,
the burden continues to require that an
applicant demonstrate that an
individual acted under color of law to
demonstrate eligibility. The final rule
does not raise or change the burden on
the applicant, but merely provides
clarity on the analysis. Moreover, the
NPRM lists the main issues to consider
in determining whether an official was
acting under the color of law: Whether
government connections provided the
officer access to the victim, or to his
whereabouts or other identifying
information; whether the officer was on
duty and in uniform at the time of his
conduct; and whether the officer
threatened to retaliate through official
channels if the victim reported his
conduct to authorities. 85 FR at 36287.
The Departments believe these issues
would be known by the alien, who
could at least provide evidence in the
form of his or her personal testimony if
other witnesses or documents were
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unavailable. See 8 CFR 1208.16(c)(2)
(‘‘The testimony of the applicant, if
credible, may be sufficient to sustain the
burden of proof [for a claim for
protection under the CAT] without
corroboration.’’).
5. Information Disclosure
Comment: Commenters raised
concerns that the rule’s confidentiality
provisions violate asylum seekers’ right
to privacy in their asylum proceedings,
are ‘‘expansive and highly concerning,’’
and would put asylum seekers at ‘‘grave
risk of harm.’’ Commenters were
particularly concerned about cases
involving gender-based violence.
Commenters explained that broad
disclosure language would deter asylum
seekers from pursuing relief or revealing
details of their alleged persecution for
fear that their persecutor would learn
about their asylum claim and subject
them or their families to further harm.
This fear, according to commenters,
would be compounded by the fact that
persecutors could potentially learn such
information online without needing to
be physically present in the United
States. For example, commenters were
concerned that disclosures in Federal
litigation could be accessed by anyone
because the litigation is public record.
One commenter noted that the
exception for state or Federal mandatory
reporting requirements at 8 CFR
208.6(d)(1)(iii) and 1208.6(d)(1)(iii) is
‘‘completely open ended and provides
no safeguards against publication’’ to
the public. Another commenter raised
concerns about the exception allowing
for an asylum application to be filed in
an unrelated case as evidence of fraud.
The commenter explained that, in
practice, this would mean that
information from one applicant’s case
would be accessible to another
applicant, potentially putting the
asylum applicant in danger.
Response: The Departments are fully
cognizant of the need to protect asylum
seekers, as well as their relatives and
associates in their home countries, by
preventing the disclosure of information
contained in or pertaining to their
applications. There are specific
situations, however, in which the
disclosure of relevant information is
necessary to protect the integrity of the
system, to ensure that those engaged in
fraud do not obtain benefits to which
they are not entitled, and to ensure that
unlawful behavior is not inadvertently
and needlessly protected. The existing
confidentiality provisions do not
provide for an absolute bar on
disclosure, but even their exceptions
may encourage fraud or criminal
behavior. See Angov, 788 F.3d at 901
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(‘‘This points to an unfortunate reality
that makes immigration cases so
different from all other American
adjudications: Fraud, forgery and
fabrication are so common—and so
difficult to prove—that they are
routinely tolerated.’’). Ultimately, there
is no utility in protecting a false or
fraudulent asylum claim, in restricting
access to evidence of child abuse, or in
restricting access to evidence that may
prevent a crime, and the rule properly
calibrates those concerns as
outweighing the blunt shield of
confidentiality for an assortment of
unlawful behaviors that exists under the
current regulations.
Here, the Departments have
determined that additional, limited
disclosure exceptions are necessary to
protect the integrity of proceedings, to
ensure that other types of criminal
activity are not shielded by the
confidentiality provisions, and to ensure
that the government can properly
defend itself in relevant proceedings. By
their text, these additional disclosure
exceptions are limited to specific
circumstances in which the disclosure
of such information is necessary and the
need for the disclosure outweighs
countervailing concerns. This rule
includes clarifying exceptions explicitly
allowing release of information as it
relates to any immigration proceeding
under the INA or legal action relating to
the alien’s immigration or custody
status. This will ensure that the
government can provide a full and
accurate record in litigating such
proceedings.
The rule also includes provisions for
protecting the integrity of proceedings
and public safety. These include
provisions aimed at detecting fraud by
allowing the Departments to submit
similar asylum applications in unrelated
proceedings; pursuing state or Federal
criminal investigations, proceedings, or
prosecutions; and protecting against
child abuse. For example, the fraud
exception will allow the Departments to
consider potentially fraudulent similar
applications or evidence in an
immigration proceeding in order to root
out non-meritorious claims, which will
in turn allow the Departments to focus
limited resources on adjudicating cases
with a higher chance of being
meritorious. See, e.g., Angov, 788 at
901–02 (‘‘[Immigration f]raud, forgery
and fabrication are so common—and so
difficult to prove—that they are
routinely tolerated. . . . [I]f an alien
does get caught lying or committing
fraud, nothing very bad happens to
him. . . . Consequently, immigration
fraud is rampant.’’).
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Regarding commenters’ concerns with
the exception to allow disclosure as
required by any state or Federal
mandatory reporting requirements, the
Departments note that the exception
simply makes clear that government
officials must abide by such laws. This
provision is designed to prevent any
inconsistencies and ensure that
government officials comply with any
mandatory reporting requirements.
Accordingly, despite commenters’
concerns with the breadth of this
provision, the Departments disagree that
any limiting language would be
appropriate.
The Departments have considered
commenters’ concerns that an
applicant’s application will be
submitted in another proceeding and
thereby be made available to the other
applicant, though they note that existing
exceptions already cover ‘‘[t]he
adjudication of asylum applications’’
and ‘‘[a]ny United States Government
investigation concerning any . . . civil
matter,’’ which, arguably, already
encompass the use of applications
across proceedings. 8 CFR 208.6(c)(1)(i),
(v), 1208.6(c)(1)(i), (v). The Departments
are maintaining the exceptions in the
NPRM to ensure clarity on this point
and to ensure that existing regulations
are not inappropriately used to shield
unlawful behavior. Because cases
involving asylum fraud are
‘‘distressingly common,’’ Angov, 788 at
902, the need to root out fraudulent
asylum claims greatly outweighs the
concerns raised by commenters.
Moreover, legitimate asylum seekers
generally should be unaffected by this
exception. Finally, the Departments
reiterate that only ‘‘relevant and
applicable’’ information is subject to
disclosure under that exception; thus,
rather than an open-ended exception,
this exception ensures that only a
limited amount of information is subject
to disclosure under that exception.
Finally, as noted above, the
Departments are making conforming
edits to 8 CFR 208.6(a) and (b) and 8
CFR 1208.6(b) to make clear that the
disclosure provisions of 8 CFR 208.6
and 1208.6 apply to applications for
withholding of removal under the INA
and for protection under the regulations
implementing the CAT, and not solely
to asylum applications. That point is
already clear in 8 CFR 208.6(d) and
1208.6(d), and the Departments see no
reason not to conform the other
paragraphs in those sections for
consistency. Relatedly, the Departments
are also making edits to 8 CFR 208.6(a),
(b), (d), and (e) and 8 CFR 1208.6(b), (d),
and (e) to make clear that applications
for refugee admission pursuant to INA
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207(c)(1), 8 U.S.C. 1157(c)(1), and 8 CFR
part 207 are subject to the same
information disclosure provisions as
similar applications for asylum,
withholding of removal under the INA,
and protection under the regulations
implementing the CAT. The
Departments already apply the
disclosure provisions to such
applications as a matter of policy and
see no basis to treat such applications
differently than those for protection
filed by aliens already in or arriving in
the United States.
6. Violates Domestic or International
Law
6.1. Violates Immigration and
Nationality Act
Comment: Commenters expressed a
general belief that the rule violates the
INA, such as by rendering it
‘‘impossible’’ or ‘‘near impossible’’ to
obtain refugee status.
Multiple commenters stated that it
appears the proposed rule is an
‘‘unreasonable interpretation’’ of
sections 208 and 240 of the INA, 8
U.S.C. 1158 and 1229a, because two
members of Congress have issued a
statement in opposition to the rule.
Response: This rule implements
numerous changes to the Departments’
regulations regarding asylum and
related procedures, including
amendments to the expedited removal
and credible fear screening process,
changes to the standards for frivolous
asylum application findings, a provision
to allow immigration judges to pretermit
applications in certain situations,
codification of standards for
consideration during the review of
applications for asylum and for
statutory withholding of removal, and
amendments to the provisions regarding
information disclosure. Each of these
changes, as discussed with more
specificity elsewhere in Section II.C of
this preamble, is designed to better align
the Departments’ regulations with the
Act and congressional intent. As also
discussed, supra, the rule does not end
asylum or refugee procedures, nor does
it make it impossible for aliens to obtain
such statuses. To the contrary, by
providing clearer guidance to
adjudicators and allowing them to more
effectively consider all applications, the
rule should allow adjudicators to more
efficiently reach meritorious claims.
The Departments disagree that the
statements of certain members of
Congress about their personal opinion
regarding the rule are sufficient to
demonstrate that the rule is an
‘‘unreasonable interpretation’’ of the
Act. Indeed, the statements of certain
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members of Congress in 2020 is not
clear evidence of the legislative intent
behind the 1996 enactment of IIRIRA,
which established the key statutory
provisions related to this rule.
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6.2. Violates Administrative Procedure
Act
Comment: Commenters raised
concerns that the rule does not comply
with the APA. Commenters alleged that
the rule is arbitrary and capricious
under the APA because it does not offer
‘‘reasoned analysis’’ for the proposed
changes. Commenters explained that
‘‘reasoned analysis’’ requires the
Departments to display awareness that
they are changing positions on a policy,
to provide a legitimate rationale for
departing from prior policy, and to
identify the reasons for the change and
why the change is a better solution to
the issue.
In alleging this failure, commenters
argued that the Departments did not
analyze or rely on data or other
evidence in formulating these changes.
Moreover, commenters also claimed that
the Departments did not consider
possible alternatives to the changes and
failed to consider important aspects of
the various changes, including the
impacts on the applicants and their
communities. Commenters claimed that
this rule is nothing more than a pretext
for enshrining anti-asylum seeker
sentiments, as evidenced by the thin or
complete lack of justification for the
various changes.
In addition, commenters claimed that
this rule overlaps with other recent
rules promulgated by the Departments,
including rules involving asylum and
adjusting fee amounts. Commenters
claimed that it is arbitrary and
capricious for the Departments to ‘‘carve
up [their] regulatory activity to evade
comprehensive evaluation and
comment.’’ For example, one
commenting organization stated that the
rule treats domestic violence differently
from another recent rule, in that the
other rule bars relief for persons who
have committed gender-based violence,
while this rule bars relief from persons
who have survived gender-based
violence.
One commenting organization stated
that the Departments are implementing
this rule to enhance their litigating
positions before EOIR and the Federal
courts, which the commenter alleged is
arbitrary and capricious where ‘‘there is
no legitimate basis for the regulation
other than to enhance the litigating
position’’ of the Departments,
particularly when the Departments are
parties to the litigation.
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Response: The Departments disagree
that the promulgation of this rule is
arbitrary and capricious under the APA.
The APA requires agencies to engage in
‘‘reasoned decisionmaking,’’ Michigan,
576 U.S. at 750, and directs that agency
actions be set aside if they are arbitrary
or capricious, 5 U.S.C. 706(2)(A). This,
however, is a ‘‘narrow standard of
review’’ and ‘‘a court is not to substitute
its judgment for that of the agency,’’ Fox
Television, 556 U.S. at 513 (quotation
marks omitted), but is instead to assess
only whether the decision was ‘‘based
on a consideration of the relevant
factors and whether there has been a
clear error of judgment,’’ Citizens to
Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971). Arbitrary and
capricious review is ‘‘highly deferential,
presuming the agency action to be
valid.’’ Sacora v. Thomas, 628 F.3d
1059, 1068 (9th Cir. 2010). It is
‘‘reasonable for the [agency] to rely on
its experience’’ to arrive at its
conclusions, even if those conclusions
are not supported with ‘‘empirical
research.’’ Id. at 1069. Moreover, the
agency need only articulate ‘‘satisfactory
explanation’’ for its decision, including
‘‘a rational connection between the facts
found and the choice made.’’ Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto Ins. Co., 463 U.S. 29,
43 (1983); see also Dep’t of Commerce
v. New York, 139 S. Ct. 2551, 2569
(2019) (‘‘We may not substitute our
judgment for that of the Secretary, but
instead must confine ourselves to
ensuring that he remained within the
bounds of reasoned decisionmaking.’’
(citation and quotation marks omitted)).
Under this deferential standard, and
contrary to commenters’ claims, the
Departments have provided reasoned
explanations for the changes in this rule
sufficient to rebut any APA-related
concerns. The NPRM describes each
provision in detail and provides an
explanation for each change. See 85 FR
at 36265–88. The Departments
explained that these various changes
will, among other things, maintain a
streamlined and efficient adjudication
process for asylum, withholding of
removal, and CAT protection; provide
clarity in the adjudication of such
claims; and protect the integrity of such
proceedings. Id. As noted in Section II.A
of this preamble, the animating
principles of the NPRM were to provide
clearer guidance to adjudicators
regarding a number of thorny issues that
have caused confusion and
inconsistency and even bedeviled
circuit courts; to improve the efficiency
and integrity of the overall system in
light of the overwhelming number of
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cases pending; to correct procedures
that were not working well, including
procedures for the identification of
meritless or fraudulent claims; and to
provide a consistent approach for the
overall asylum adjudicatory framework
in light of numerous—and often
contradictory or confusing—decisions
from the Board and circuit courts
regarding multiple important terms that
are not defined in the statute.
For example, the Departments
explained that the changes to use
asylum-and-withholding-only
proceedings for positive credible fear
findings, to increase the credible fear
standard for withholding of removal and
CAT protection claims, to apply certain
bars and the internal relocation analysis
in credible fear interviews, to pretermit
legally insufficient asylum applications,
and to expand the grounds for a
frivolous asylum finding are all
intended to create a more streamlined
and efficient process for adjudicating
asylum, withholding of removal, and
CAT protection applications. See 85 FR
at 36266–67 (explaining that asylumand-withholding-only proceedings will
ensure a ‘‘streamlined, efficient, and
truly ‘expedited’ ’’ removal process); id.
at 36277 (explaining that the
pretermission of legally insufficient
asylum applications will eliminate the
need for a hearing); id. at 36273–76
(explaining that frivolous applications
are a ‘‘costly detriment, resulting in
wasted resources and increased
processing times,’’ and that the new
grounds for a finding of frivolousness
will ‘‘ensure that meritorious claims are
adjudicated more efficiently’’ and will
prevent ‘‘needless expense and delay’’);
id. at 36268–71 (explaining that raising
the credible fear standard for
withholding and CAT applications will
allow the Departments to more
‘‘efficiently and promptly’’ distinguish
between aliens whose claims are more
or less likely to ultimately be
meritorious); id. at 36272 (explaining
that applying certain eligibility bars in
credible fear interviews will help to
eliminate unnecessary removal delays
in section 240 proceedings and
eliminate the ‘‘waste of adjudicatory
resources currently expended in vain’’).
Similarly, the Departments also
explained in the NPRM that many of the
changes are intended to provide clarity
to adjudicators and the parties,
including the addition of definitions
and standards for terms such as
‘‘particular social group,’’ ‘‘political
opinion,’’ ‘‘persecution,’’ ‘‘nexus,’’ and
‘‘internal relocation;’’ the delineation of
discretionary factors in adjudicating
asylum applications; the addition of
guidance on the meaning of
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‘‘acquiescence’’ and the circumstances
in which officials are not acting under
color of law in the CAT protection
context; and the clarification of the use
of precedent in credible fear review
proceedings. See 85 FR at 36278
(explaining that the rule’s definition of
‘‘particular social group’’ will provide
‘‘clearer guidance’’ to adjudicators
regarding whether an alleged group
exists and, if so, whether the group is
cognizable); id. at 36278–79 (explaining
that the rule’s definition of ‘‘political
opinion’’ will provide ‘‘additional
clarity for adjudicators’’); id. at 36280
(explaining that the rule’s definition of
‘‘persecution’’ will ‘‘better clarify what
does and does not constitute
persecution’’); id. at 36281 (explaining
that the rule’s definition of ‘‘nexus’’ will
provide ‘‘clearer guidance’’ for
adjudicators to ‘‘uniformly apply’’); id.
at 36282 (explaining that the rule’s
definition of ‘‘internal relocation’’ will
help create a more ‘‘streamlined
presentation’’ to overcome the current
lack of ‘‘practical guidance’’); id. at
36283 (explaining that, for asylum
discretionary determinations, the
Departments have not previously
provided general guidance in agency
regulations for factors to be considered
when determining whether an alien
merits asylum as a matter of discretion);
id. at 36286–87 (explaining that
guidance for CAT acquiescence and for
the circumstances in which an official is
not acting under color of law standards
is meant to provide clarity because
current regulations ‘‘do not provide
further guidance’’); id. at 36267
(explaining that the inclusion of
language regarding the consideration of
precedent in credible fear review
proceedings is intended to provide a
‘‘clear requirement’’).
The Departments also explained that
many of the changes are intended to
protect the integrity of proceedings. See
85 FR at 36288 (explaining the
expansion of information disclosure is
necessary to protect against ‘‘suspected
fraud or improper duplication of
applications or claims’’); id. at 36283
(explaining that the inclusion of a
discretionary factor for use of fraudulent
documents is necessary due to concerns
that the use of fraudulent documents
makes the proper enforcement of the
immigration laws ‘‘difficult’’ and
‘‘requires an immense amount of
resources’’); id. (explaining that the
inclusion of a discretionary factor for
failure to seek asylum or protection in
a transit country ‘‘may reflect an
increased likelihood that the alien is
misusing the asylum system’’); id. at
36284 (explaining that making
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applications that were previously
abandoned or withdrawn with prejudice
a negative discretionary factor would
‘‘minimize abuse of the system’’).
The Departments also disagree with
commenters that the rule does not
provide support for the specific grounds
that would be insufficient to qualify as
a particular social group or to establish
a nexus.79 The Departments provided
numerous citations to BIA and Federal
court precedent that the Departments
relied on in deciding to add these
specific grounds. See 85 FR at 36279
(list of cases supporting the grounds that
generally will not qualify as a particular
social group); id. at 36281 (list of cases
supporting the grounds that generally
will not establish nexus).
In addition to the explicit purposes
detailed in the NPRM, the Departments
also considered, contrary to
commenters’ claims, the effects that
such changes may have on applicants.
The Departments noted that the
proposed changes ‘‘are likely to result in
fewer asylum grants annually.’’ 85 FR at
36289. Moreover, the Departments
recognized that any direct impacts
would fall on these applicants. Id. at
36290. The Departments acknowledge
that these impacts are viewed as
‘‘harsh’’ or ‘‘severe’’ by commenters, but
the Departments also note, as discussed,
supra, that many of the commenters’
overall assertions about the effects of
this rule are unfounded or speculative.80
In addition, the Departments made the
decision to include the various changes
in this rule because, after weighing the
costs and benefits, the Departments
determined that the need to provide
additional clarity to adjudicators; to
enhance adjudicatory efficiencies; and
to ensure the integrity of proceedings
outweighed the potential costs to
applicants, especially since the changes,
particularly those rooted in existing law,
would naturally fall more on applicants
with non-meritorious claims. In fact, the
enhanced adjudicatory efficiencies
would be expected to allow adjudicators
to focus more expediently on
meritorious claims, which would be a
79 For further discussion regarding the changes
related to particular social groups, see Section
II.C.4.1 of this preamble, and for further discussion
regarding the changes related to nexus, see Section
II.C.4.4.
80 The Departments also note that aliens with
otherwise meritorious claims who are denied
asylum under genuinely new principles in the
rule—e.g., the new definition of ‘‘firm
resettlement’’—may remain eligible for other forms
of protection from removal, such as statutory
withholding of removal or protection under the
CAT. Thus, contrary to the assertions of many
commenters, the rule would not result in the
‘‘harsh’’ or ‘‘severe’’ consequence of an alien being
removed to a country where his or her life would
be in danger.
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benefit offsetting any costs to those
applicants filing non-meritorious
applications. Overall, as shown in the
NPRM and the final rule, the
Departments engaged in ‘‘reasoned
decision making’’ sufficient to mitigate
any APA concerns.
The Departments also disagree with
commenters’ claim that the Departments
purposefully separated their asylumrelated policy goals into separate
regulations in order to prevent the
public from being able to meaningfully
review and provide comment. The
Departments reject any assertions that
they are proposing multiple rules for
any sort of nefarious purpose. Each of
the Departments’ rules stand on its own,
includes an explanation of its basis and
purpose, and allows for public
comment, as required by the APA. See
Little Sisters of the Poor Saints Peter &
Paul Home v. Pennsylvania, 140 S. Ct.
2367, 2386 (2020) (explaining that the
APA provides the ‘‘maximum
procedural requirements’’ that an
agency must follow in order to
promulgate a rule). To the extent
commenters noted some overlap or joint
impacts, however, the Departments
regularly consider the existing legal
framework when a specific rule is
proposed or implemented. For example,
with respect to the potential impacts of
DHS fee changes, DHS conducts a
biennial review of USCIS fees and
publishes a Fee Rule that impacts all
populations before USCIS. See, e.g., U.S.
Citizenship and Immigration Services
Fee Schedule and Changes to Certain
Other Immigration Benefit Request
Requirements, 84 FR 62280, 62282
(Nov. 14, 2019) (explaining that, in
accordance with 31 U.S.C. 901–03,
USCIS conducts ‘‘biennial reviews of
the non-statutory fees deposited into the
[Immigration Examinations Fee
Account]’’). It is natural that there
would be some impact on aliens who
intend to seek asylum, but any such
change to those fees must be considered
with respect to USCIS’s overall fee
structure. Thus, any such changes were
properly outside the scope of this rule.
Moreover, nothing in any rule proposed
by the Departments, including the
NPRM underlying this final rule,
precludes the public from meaningfully
reviewing and commenting on that rule.
Finally, commenters are incorrect that
the rule is related to enhancing the
government’s litigating positions. As
explained in the NPRM and this
response section, the Departments
detailed a number of reasons for
promulgating this rule, including to
increase efficiency, to provide clarity to
adjudicators, and to protect the integrity
of proceedings. To the extent the rule
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corresponds with interpretations of the
Act and case law that the Departments
have set forth in other contexts, the
Departments disagree that such
correspondence violates the APA.
Instead, it shows the Departments’
consistent interpretation and the
Departments’ intent to better align the
regulations with the Act through this
rulemaking.
6.3. 30-Day Comment Period
Comment: Commenters raised
concerns with the 30-day comment
period, arguing that the Departments
should extend the comment period to at
least 60 days or should reissue the rule
with a new 60-day comment period.
Due to the complex nature of the rule
and its length, commenters requested
additional time to comment, asserting
that such time is needed to meet APA
requirements that agencies provide the
public with a ‘‘meaningful opportunity’’
to comment. Commenters also claimed
that the 30-day comment period was
particularly problematic due to the
COVID–19 pandemic, which caused
disruption and limited staff capacity for
some commenters. Moreover,
commenters stated that there should be
no urgency to publish the rule due to
the southern border being ‘‘blocked’’
due to COVID–19. Finally, commenters
referenced the companion data
collection under the Paperwork
Reduction Act, which allowed for a 60day comment period.
Response: The Departments believe
the 30-day comment period was
sufficient to allow for meaningful public
input, as evidenced by the almost
89,000 public comments received,
including numerous detailed comments
from interested organizations. The APA
does not require a specific comment
period length, see 5 U.S.C. 553(b), (c),
and although Executive Orders 12866,
58 FR 51735 (Sept. 30, 1993), and
13563, 76 FR 3821 (Jan. 18, 2011),
recommend a comment period of at
least 60 days, a 60-day period is not
required. Federal courts have presumed
30 days to be a reasonable comment
period length. For example, the D.C.
Circuit has stated that, although a 30day period is often the ‘‘shortest’’ period
that will satisfy the APA, such a period
is generally ‘‘sufficient for interested
persons to meaningfully review a
proposed rule and provide informed
comment,’’ even when ‘‘substantial rule
changes’’ are proposed. 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)).
Further, litigation has mainly focused
on the reasonableness of comment
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question governs only until ‘‘the agency
has issued a dispositive interpretation
concerning the meaning of a genuinely
ambiguous statute or regulation.’’ The
organization also noted that Chevron
deference requires a Federal court to
accept an agency’s ‘‘reasonable
construction of an ambiguous statute,’’
emphasizing that the distinction
between ‘‘genuinely ambiguous
language’’ and ‘‘plain language’’ is
crucial. See Chevron, 467 U.S. at 843–
44, n.11.
The organization then alleged that the
Departments’ reliance on Brand X ‘‘to
entirely eviscerate Federal court
caselaw’’ is misplaced and contrary to
controlling law. According to the
organization, the Departments failed to
demonstrate that each instance of the
statutory language they seek to overrule
is ‘‘genuinely ambiguous,’’ and the
organization cited Kisor, 139 S. Ct. 2400,
to support its claim that deference to
‘‘agency regulations should not be
afforded automatically.’’ The
organization claimed that Kisor limits
the ability to afford deference unless (1)
a regulation is genuinely ambiguous; (2)
the agency’s interpretation is reasonable
regarding text, structure, and history; (3)
the interpretation is the agency’s official
position; (4) the regulation implicates
the agency’s expertise; and (5) the
regulation reflects the agency’s ‘‘fair and
considered judgment.’’ The organization
contended that the Departments failed
to meet these criteria, alleging that the
proposed rule attempts to ‘‘re-write
asylum law rather than interpret the
statute.’’
Multiple commenters claimed that the
rule is in opposition to the asylum
criteria established by Congress and
expressed concern that the rule was
drafted without congressional input.
Response: The Departments did not
ignore Kisor, 139 S. Ct. 2400. Kisor
examined the scope of Auer deference,
which affords deference to an agency’s
6.4. Agency Is Acting Beyond Authority ‘‘reasonable readings of genuinely
Comment: At least one organization
ambiguous regulations.’’ Id. at 2408
emphasized the Departments’ reliance
(citing Auer v. Robbins, 519 U.S. 452
on Brand X, 545 U.S. at 982, as a
(1997)). Here, ambiguous regulations are
justification for the portions of the rule
not at issue; instead, the Departments
overruling circuit court decisions
amended the regulations based on their
relating to asylum. See 85 FR at 36265,
reading of ambiguities in the statute, in
n.1. One organization claimed the
accordance with Congress’s presumed
Departments ‘‘ignore[d]’’ the Supreme
intent for the Departments to resolve
Court’s decision in Kisor v. Wilkie, 139
these ambiguities. See 85 FR at 36265
S. Ct. 2400 (2019), which ‘‘follows the
n.1 (citing Brand X, 545 U.S. at 982).
The Departments disagree that the
recent trend towards limiting deference
rulemaking ‘‘eviscerates’’ case law. As
to an agency’s interpretation of its own
explained in the NPRM, ‘‘administrative
rules.’’ According to the organization,
Brand X can be interpreted to mean that, agencies are not bound by prior judicial
interpretations of ambiguous statutory
where statutory or regulatory terms are
generally ambiguous and the agency has interpretations, because there is ‘a
presumption that Congress, when it left
not ruled on a particular issue, circuit
ambiguity in a statute meant for
court law addressing the issue in
periods shorter than 30 days, often in
the face of exigent circumstances. 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) (15day comment period); Northwest
Airlines, Inc. v. Goldschmidt, 645 F.2d
1309, 1321 (8th Cir. 1981) (7-day
comment period). In addition, the
Departments are not aware of any case
law holding that a 30-day comment
period was insufficient, and the
significant number of detailed public
comments is evidence that the 30-day
period was sufficient for the public to
meaningfully review and provide
informed comment. See, e.g., Little
Sisters of the Poor, 140 S. Ct. at 2385
(‘‘The object [of notice and comment], in
short, is one of fair notice.’’ (citation and
quotation marks omitted)).
One commenter noted that the
comment period in the rule regarding
the edits to the Form I–589, Application
for Asylum and for Withholding of
Removal, was 60 days, while the
comment period for the substantive
portions of the rule was only 30 days.
In most cases, by statute, the Paperwork
Reduction Act requires a 60-day
comment period for proposed
information collections, such as the
Form I–589. 44 U.S.C. 3506(c)(2)(A).
Although the statute allows an
exception for proposed collections of
information contained in a proposed
rule that will be reviewed by the
Director of the Office of Management
and Budget under 44 U.S.C. 3507, see 44
U.S.C. 3506(c)(2)(B), the Departments
sought a 60-day comment period to
provide the public with additional time
to comment on the form changes. In
contrast, as explained above, there is no
similar statutory requirement for the
proposed rule itself.
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implementation by an agency,
understood that the ambiguity would be
resolved, first and foremost, by the
agency, and desired the agency (rather
than the courts) to possess whatever
degree of discretion the ambiguity
allows.’ ’’ Matter of R–A–, 24 I&N Dec.
at 631 (quoting Brand X, 545 U.S. at
982) (quotation marks and citations
omitted); see also 85 FR at 36265 n.1;
Ventura, 537 U.S. at 16 (‘‘Within broad
limits the law entrusts the agency to
make the basic asylum eligibility
decision here in question. In such
circumstances a judicial judgment
cannot be made to do service for an
administrative judgment. Nor can an
appellate court intrude upon the
domain which Congress has exclusively
entrusted to an administrative agency. A
court of appeals is not generally
empowered to conduct a de novo
inquiry into the matter being reviewed
and to reach its own conclusions based
on such an inquiry.’’ (alteration,
citations, and quotation marks
omitted)). Moreover, ‘‘ ‘judicial
deference to the Executive Branch is
especially appropriate in the
immigration context,’ where decisions
about a complex statutory scheme often
implicate foreign relations.’’ Cuellar de
Osorio, 573 U.S. at 56–57 (quoting INS
v. Aguirre-Aguirre, 526 U.S. 415, 425
(1999)).
Further, the Departments disagree that
the rulemaking rewrites asylum law or
that it conflicts with the asylum criteria
established by Congress. Congress
statutorily authorized the Attorney
General to, consistent with the statute,
make discretionary asylum
determinations, INA 208(b)(1)(A), 8
U.S.C. 1158(b)(1)(A), establish
additional limitations and conditions on
asylum eligibility, INA 208(b)(2)(C), 8
U.S.C. 1158(b)(2)(C), and establish other
conditions and limitations on
consideration of asylum applications,
INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B).
The changes made by this rulemaking
are consistent with those congressional
directives. Regarding commenters’
concerns that the rule was drafted
without congressional input, the
Departments once again point to
Congress’s statutory delegation of
authority to the Attorney General. See
INA 103(g)(1), (2), 8 U.S.C. 1103(g)(1),
(2) (granting the Attorney General the
‘‘authorities and functions under this
chapter and all other laws relating to the
immigration and naturalization of
aliens,’’ and directing the Attorney
General to ‘‘establish such regulations
. . . and perform such other acts as the
Attorney General determines to be
necessary for carrying out this section’’).
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Congress, in other words, has already
delegated to the Attorney General the
power to promulgate rules such as this
one, and no further congressional input
is required.
6.5. Violates Separation of Powers
One organization emphasized that the
Departments only have authority to
‘‘faithfully interpret’’ a statute, not to
rewrite it. The organization contended
that ‘‘[r]ulemaking is not an opportunity
for an agency to engage in an
unauthorized writing exercise that
duplicates the legislative role assigned
to Congress.’’ Another commenter
claimed there is an ‘‘urgent need’’ for
checks and balances on the ‘‘power’’ of
immigration authorities in the asylum
process, alleging that the U.S.
government is allowing ICE and CBP to
put lives in danger due to ‘‘lack of
oversight.’’ One commenter contended
that revising asylum law ‘‘is not an
executive branch function.’’
Response: The Departments are not
rewriting statutes. As explained
throughout this final rule in various
sections, the Departments are statutorily
authorized to promulgate this rule
under section 208(b)(1)(A) of the Act, 8
U.S.C. 1158(b)(1)(A) (authority to make
discretionary asylum determinations),
section 208(b)(2)(C) of the Act, 8 U.S.C.
1158(b)(2)(C) (authority to establish
additional limitations and conditions on
asylum eligibility), and section
208(d)(5)(B) of the Act, 8 U.S.C.
1158(d)(5)(B) (authority to establish
other conditions and limitations on
consideration of asylum applications).
In section 103(a)(1) and (3) of the INA,
8 U.S.C. 1103(a)(1), (3), Congress has
conferred upon the Secretary broad
authority to administer and enforce the
immigration laws and to ‘‘establish such
regulations . . . as he deems necessary
for carrying out his authority’’ under the
immigration laws. Under section
103(g)(1), (2) of the Act, 8 U.S.C.
1103(g)(1), (2), Congress provided the
Attorney General with the ‘‘authorities
and functions under this chapter and all
other laws relating to the immigration
and naturalization of aliens,’’ and
directed the Attorney General to
‘‘establish such regulations . . . and
perform such other acts as the Attorney
General determines to be necessary for
carrying out this section.’’ Thus, the
Departments derive authority to
promulgate this rule from the statute
and issued this rule consistent with the
statute, not in contravention of it.
Moreover, the Departments have
promulgated this rule in accordance
with the APA’s rulemaking process. See
5 U.S.C. 553; see also Sections II.C.6.2,
6.3 of this preamble.
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The Departments also note that,
although an agency ‘‘must give effect to
the unambiguously expressed intent of
Congress,’’ if Congress ‘‘has explicitly
left a gap for the agency to fill, there is
an express delegation of authority to the
agency to elucidate a specific provision
of the statute by regulation. Such
legislative regulations are given
controlling weight unless they are
arbitrary, capricious, or manifestly
contrary to the statute.’’ Chevron, 467
U.S. at 843–44; see also Aguirre-Aguirre,
526 U.S. at 424–25 (‘‘It is clear that
principles of Chevron deference are
applicable to [the INA]. The INA
provides that ‘[t]he Attorney General
shall be charged with the administration
and enforcement’ of the statute and that
the ‘determination and ruling by the
Attorney General with respect to all
questions of law shall be controlling.’
. . . In addition, we have recognized
that judicial deference to the Executive
Branch is especially appropriate in the
immigration context where officials
‘exercise especially sensitive political
functions that implicate questions of
foreign relations.’ ’’ (citations omitted)).
Congress has clearly spoken in the Act,
see INA 208(b)(1)(A), 8 U.S.C.
1158(b)(1)(A); INA 208(b)(2)(C), 8 U.S.C.
1158(b)(2)(C); INA 208(d)(5)(B), 8 U.S.C.
1158(d)(5)(B); and INA 103(g)(1), (2), 8
U.S.C. 1103(g)(1), (2), and the
Departments properly engaged in this
rulemaking, consistent with 5 U.S.C.
553, to effectuate that statutory scheme.
To the extent that comments disagree
with provisions of the INA, such
comments are properly directed to
Congress, not the Departments.
6.6. Congress Should Act
Comment: Some commenters stated
that Congress, not the Departments,
must make the sorts of changes to the
asylum procedures set out in the
proposed rule. Commenters cited a
variety of reasons why these changes are
most appropriately the providence of
Congress, including commenters’ belief
that the rule would effectively end or
eliminate asylum availability and limit
how many asylum seekers would
receive relief annually, the breadth of
the changes in the proposed rule, and
alleged inconsistencies between the Act
and the rule. Commenters expressed a
belief that changes as significant as
those proposed should be undertaken
only by Congress. Other commenters
suggested that Congress should
separately enact other legislation to
protect asylum seekers.
Response: As stated above, the
Departments issued the proposed rule,
and in turn are issuing this final rule,
pursuant to the authorities provided by
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Congress through the HSA and the Act.
INA. See, e.g., INA 103(a)(1) and (3),
(g)(2), 208, 8 U.S.C. 1101(a)(1) and (3),
(g)(2), 1158.81 Despite commenters’
statements, the provisions of the rule are
consistent with these authorities and the
Act, as discussed above. See, e.g.,
Sections II.C.2, II.C.3, II.C.4, and II.C.6.1
of this preamble.
Should Congress enact legislation that
amends the provisions of the Act that
are interpreted and affected by this rule,
the Departments will engage in future
rulemaking as needed. Commenters’
discussion of specific possible
legislative proposals or initiatives,
however, is outside of the scope of this
rule.
6.7. Violates Constitutional Rights
Comment: One organization
contended that the application of the
‘‘interpersonal’’ and ‘‘private’’ categories
to domestic and gender-based violence
would violate the Equal Protection
Clause. The organization claimed the
presumption created by these categories
would have a disproportionate effect on
women, who are much more likely than
men to experience violence by an
intimate partner.
Another organization alleged that the
rule would essentially prevent women,
children, LGBTQ individuals, people of
color, survivors of violence, and torture
escapees from obtaining asylum
protection, claiming this violates the
‘‘spirit and letter’’ of both the Fifth
Amendment and the Refugee Act of
1980. According to the organization, the
rule is designed to ‘‘eliminate due
process’’ and create ‘‘impossible new
legal standards’’ to prevent refugees
from obtaining asylum. One
organization emphasized generally that
asylum seekers should not be treated
like criminals but should instead be
shown dignity and respect; the
organization noted that these
individuals should also be given
judicial due process.
Response: The rule makes no
classifications prohibited by the Equal
Protection Clause; thus, the
commenter’s allegation that the rule will
disproportionately affect various
groups—women, children, LGBTQ
individuals, people of color, and
survivors of violence and torture—is
unfounded. The Departments do not
track the factual bases for each asylum
application, and each application is
adjudicated on a case-by-case basis in
81 In addition, Congress has authorized the
Department to ‘‘provide by regulation for any other
conditions or limitations on the consideration of an
application for asylum’’ consistent with the other
provisions of the Act. INA 208(d)(5)(B), 8 U.S.C.
1158(d)(5)(B).
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accordance with the evidence and
applicable law. Moreover, the changes
alleged by commenters to have a
disparate impact on discrete groups are
ones rooted in existing law as noted in
the NPRM, and commenters provided
no evidence that existing law has
caused an unconstitutional disparate
impact. For allegations of disparate
impact based on gender, a ‘‘significantly
discriminatory pattern’’ must first be
demonstrated. Dothard v. Rawlinson,
433 U.S. 321, 329 (1977). The
Departments are unaware of such a
pattern, and commenters did not
provide persuasive evidence of one,
relying principally on anecdotes and
isolated statistics, news articles, and
reports.82 Moreover, to the extent that
the NPRM may affect certain groups of
aliens more than others, those effects are
a by-product of the intrinsic
demographic distribution of claims, and
a plausible equal protection claim will
not lie in such circumstances. See
Regents of Univ. of Cal., 140 S. Ct. at
1915–16 (impact of a policy on a
population that is intrinsically skewed
demographically does not established a
plausible claim of animus, invidious
discrimination, or an equal protection
violation).
For allegations of disparate impact
based on race, case law has ‘‘not
embraced the proposition that a law or
other official act, without regard to
whether it reflects a racially
discriminatory purpose, is
unconstitutional [s]olely because it has
a racially disproportionate impact. . . .
[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.’’ Washington, 426 U.S. at
239, 242. No discriminatory motive or
purpose underlies this rulemaking; it
does not address race in any way; 83 and
commenters have not explained—
logically, legally, or otherwise—how the
82 The Departments also note that accepting the
commenters’ assertion that the likelihood of women
being subject to intimate-partner violence being
greater than that of men necessarily demonstrates
an equal protection violation would, in turn, mean
that other immigration regulations regarding
victims of domestic violence, e.g., 8 CFR 204.2(c),
are also unconstitutional because of their putative
disparate impact.
83 The NPRM did not mention race at all, except
when quoting the five statutory bases for asylum—
race, religion, nationality, political opinion, and
membership in a particular social group.
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rule would even affect asylum claims
based on persecution because of race.
In regard to allegations that the rule
would discriminate against LGBTQ
individuals, children, and survivors of
violence or torture, the Departments
reiterate that the rule applies equally to
all asylum seekers. Further, as noted
elsewhere, to the extent that the NPRM
may affect certain groups of aliens more
than others based on the innate
characteristics of those who file asylum
applications, those effects are a byproduct of the intrinsic demographic
distribution of claims, and a plausible
equal protection claim will not lie in
such circumstances. See Regents of
Univ. of Cal., 140 S. Ct. at 1915–16
(impact of a policy on a population that
is intrinsically skewed demographically
does not established a plausible claim of
animus, invidious discrimination, or an
equal protection violation).
Relatedly, this rule does not eliminate
statutory withholding of removal or
protection under the CAT regulations,
through which the United States
continues to fulfill its commitments
under the 1967 Refugee Protocol,
consistent with the Refugee Act of 1980
and subsequent amendments to the INA,
and the CAT, consistent with FARRA.
See 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, 786 F.3d at 1162
(explaining that Article 3 of the CAT,
which sets out the non-refoulement
obligations of parties, was implemented
in the United States by the FARRA and
its implementing regulations).
The rule does not eliminate due
process. As explained previously in this
rule, due process in an immigration
proceeding requires notice and an
opportunity to be heard. See LaChance,
522 U.S. at 266 (‘‘The core of due
process is the right to notice and a
meaningful opportunity to be heard.’’).
The rule does not eliminate the notice
of charges of removability against an
alien, INA 239(a)(1), 8 U.S.C. 1229(a)(1),
or the opportunity for the alien to make
his or her case to an immigration judge,
INA 240(a)(1), 8 U.S.C. 1229a(a)(1), or
on appeal, 8 CFR 1003.38. Moreover,
asylum is a discretionary benefit. See
INA 208 (b)(1)(A), 8 U.S.C. 1158(b)(1)(A)
(stating that the Departments ‘‘may’’
grant asylum’’); see also Thuraissigiam,
140 S. Ct. at 1965 n.4 (‘‘A grant of
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asylum enables an alien to enter the
country, but even if an applicant
qualifies, an actual grant of asylum is
discretionary.’’). The Attorney General
and the Secretary are statutorily
authorized to limit and condition
asylum eligibility under section
208(b)(2)(C), (d)(5)(B) of the Act, 8
U.S.C. 1158(b)(2)(C), (d)(5)(B), by
regulation and consistent with the Act,
and 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 50). The Departments properly
exercised that authority in this
rulemaking, and that exercise does not
implicate due process claims. Finally,
the rule does not treat aliens ‘‘like
criminals,’’ as commenters alleged.
Aliens retain all due process rights to
which they are entitled under law, and
the rule does not change that situation.
6.8. Violates International Law
Comment: Commenters asserted that
the proposed rule violates the
Convention on the Rights of the Child
(‘‘CRC’’) because the United States, as a
signatory, is obligated to ‘‘refrain from
acts that would defeat the object and
purpose of the Convention.’’
Commenters averred that the CRC
protects the rights of children to seek
asylum; therefore, commenters argued,
the United States must protect the right
of children to seek asylum. Commenters
also asserted that the proposed rule
violates the Refugee Convention and the
CRC by requiring adjudicators to
presume that many child-specific forms
of persecution do not warrant a grant of
asylum. Commenters alleged that this
will result in children being returned to
danger in violation of the language and
spirit of the Refugee Convention and the
CRC.
One commenter cited Article 14 of the
Universal Declaration of Human Rights
(‘‘UDHR’’), G.A. Res. 217A (III), U.N.
Doc. A/810 (1948), which states that
‘‘[e]veryone has the right to seek and to
enjoy in other countries asylum from
persecution.’’ That commenter asserted
that the proposed revisions
unnecessarily hinder access to asylum
in contradiction of that right.
Commenters also asserted that, under
Article 34 of the Refugee Convention,
the United States has an obligation to
extend grants of asylum ‘‘as far as
possible’’ to eligible refugees. These
commenters asserted that this requires
adjudicators to, at the very least,
exercise a general presumption in favor
of individuals who meet the definition
of refugee. To do otherwise would not
meet the United States’ obligation to
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facilitate ‘‘as far as possible’’ the
assimilation and naturalization of
individuals who qualify as refugees.
Commenters criticized the
Departments’ statements that the
continued viability of statutory
withholding of removal, as referenced in
the preamble to the NPRM, meets the
United States’ non-refoulement
obligations. Commenters asserted that
this is a misreading of the scope of both
domestic and international obligations.
As an initial matter, commenters
averred that the Refugee Act of 1980, as
implemented, was designed to give full
force to the United States’ obligations
under the Refugee Convention, to the
extent applicable by incorporation in
the 1967 Protocol. Commenters argued
that these obligations are not limited to
one article of the Refugee Convention
and are not limited to not returning an
individual to a country where he or she
would face persecution or other severe
harm. Rather, commenters asserted, the
obligations also require the United
States to ensure that refugees are treated
fairly and with dignity, and are
guaranteed freedom of movement and
rights to employment, education, and
other basic needs. Commenters also
cited the Refugee Convention’s
provision to provide a pathway to
permanent status for refugees, which the
commenters asserted is reflected in the
asylum scheme implemented by the
Refugee Act, not the statutory
withholding of removal provisions.
Commenters argued that narrowing the
opportunity to receive asylum through
the implementation of numerous
regulatory obstacles makes asylum—and
therefore permanent status—
unattainable, which is inconsistent with
the United States’ obligations under
U.S. and international law. Commenters
also generally asserted that allowing
immigration judges to pretermit
applications for asylum violates the
principle of non-refoulement.
Commenters generally asserted that
the culmination of the proposed rule’s
procedural and substantive changes
subvert the purpose of the Refugee Act,
which was to implement the United
States’ commitments made through
ratification of the 1967 Protocol.
Further, one organizational commenter
argued that the proposed rule ‘‘reorients the U.S. asylum process away
from a principled, humanitarian
approach focused on identifying
individuals with international
protection needs towards one that
establishes a set of obstacles which must
be overcome by individuals seeking
international protection.’’ Commenters
also criticized the Departments’
statements that the continued viability
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of statutory withholding of removal
ensures continued compliance with
international obligations. Specifically,
commenters noted that many of the
provisions of the proposed rule also
affect eligibility for protection under
statutory withholding of removal.
Commenters argued that the proposed
changes that affect statutory
withholding of removal would not
adequately meet the United States’
obligations under the non-refoulement
provisions of Article 33.
Response: 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.84 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.
Regarding the CRC, as an initial point,
although the United States has signed
the instrument, the United States has
not ratified it; thus, it cannot establish
any binding obligations. See MartinezLopez v. Gonzales, 454 F.3d 500, 502
(5th Cir. 2006) (‘‘The United States has
not ratified the CRC, and, accordingly,
the treaty cannot give rise to an
individually enforceable right.’’).
Moreover, contrary to commenters’
assertions, nothing in the rule is
inconsistent with the CRC. Under the
CRC, states are obligated to ‘‘take
appropriate measures to ensure that a
child who is seeking refugee status or
who is considered a refugee in
accordance with applicable
international or domestic law and
procedures shall, whether
unaccompanied or accompanied by his
or her parents or by any other person,
receive appropriate protection and
humanitarian assistance in the
enjoyment of applicable rights set forth
in the present Convention and in other
international human rights or
humanitarian instruments to which the
said States are Parties.’’ Convention on
the Rights of the Child, art. 22, opened
for signature Nov. 20, 1989, 28 I.L.M.
1448. Because this rule is consistent
with the Refugee Act and the United
States’ obligations under the Refugee
84 The Departments also note that neither of these
treaties is self-executing, and that, therefore, neither
is directly enforceable in the U.S. legal context
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 Stevic, 467 U.S. at 428
n.22 (‘‘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.’’).
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Convention and Article 3 of the CAT, it
is consistent with the CRC.
Similarly, the Departments disagree
with commenters’ assertions that the
rule violates the CRC by creating a
presumption against ‘‘child-specific
forms of persecution.’’ As an initial
point, nothing in the rule singles out
children or ‘‘child-specific’’ claims;
rather, the rule applies to all types of
claims regardless of the demographic
characteristics of the applicant.
Moreover, although certain types of
children are afforded more protections
by statute than similarly-situated nonchild asylum applicants, see e.g., INA
208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C), this
rule does not affect those protections.
Further, generally applicable legal
requirements, including credibility
standards and burdens of proof, are not
relaxed or obviated for juvenile
respondents. See EOIR, Operating
Policies and Procedures Memorandum
17–03: Guidelines for Immigration Court
Cases Involving Juveniles, Including
Unaccompanied Alien Children 7 (Dec.
20, 2017), https://www.justice.gov/eoir/
file/oppm17-03/download.
The UDHR is a non-binding human
rights instrument, not an international
agreement; 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 UDHR 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.’ ’’)).
Moreover, although article 14(1) of the
UDHR proclaims the right of ‘‘everyone’’
to ‘‘seek and to enjoy’’ asylum, 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
Secretary from exercising the discretion
granted by the INA, consistent with U.S.
obligations under international law, see
UNHCR, Advisory Opinion on the
Extraterritorial Application of NonRefoulement 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 nonrefoulement 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.’’).
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Similarly, the Departments disagree
with commenters’ unsupported
assertions that the United States’
obligation to ‘‘as far as possible facilitate
the assimilation and naturalization of
refugees’’ requires a general
presumption in favor of granting asylum
to all individuals who apply. Rather, as
the Supreme Court has noted, Article 34
‘‘is precatory; it does not require the
implementing authority actually to grant
asylum to all those who are eligible.’’
Cardoza-Fonseca, 480 U.S. at 441.
Moreover, 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 Cardoza-Fonseca, 480
U.S. at 429, 440–41 & n.25; Matter of O–
F–A–S–, 27 I&N Dec. at 712; FARRA; 8
CFR 208.16(b), (c), 208.17 through
208.18; 1208.16(b), (c); 1208.17 through
1208.18. This rule’s limitations on
asylum, including the ability of
immigration judges to pretermit
applications, do not violate the United
States’ non-refoulement obligations.
At the same time, the changes to
statutory withholding of removal and
CAT protection do not misalign the rule
with the non-refoulement provisions of
the 1951 Refugee Convention, the 1967
Protocol, and the CAT. As explained
above, the Departments have properly
asserted additional standards and
clarification for immigration judges to
follow when evaluating claims for
statutory withholding of removal and
protection under the CAT.
6.9. Executive Order 12866 and Costs
and Benefits of the Rule; Regulatory
Flexibility Act
Comment: At least one commenter
alleged that the rule creates ‘‘serious
inconsistencies’’ with sections 208(a)
and 240(b) of the Act, 8 U.S.C. 1158(a),
1229a(b), and the Constitution; as a
result, commenters stated, the rule
constitutes a ‘‘significant regulatory
action’’ under Executive Order 12866
and the Departments must comply with
the order’s analysis requirements,
specifically sections 6(a)(3)(B) and (C).
Multiple organizations claimed that
the costs and benefits section of the rule
fails to address the cost to the
‘‘reputation’’ of the United States, as
well as the cost of losing the ‘‘talent,
diversity, and innovation’’ brought by
asylees.
Another organization emphasized that
it is difficult to evaluate whether the
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Departments’ ‘‘multiple overlapping
proposals to amend the same asylum
provisions’’ comply with Executive
Order 12866’s mandate that ‘‘[e]ach
agency shall avoid regulations that are
inconsistent, incompatible, or
duplicative with its other regulations or
those of other Federal agencies.’’ Citing
CSX Transportation, Inc. v. Surface
Transportation Board, 754 F.3d 1056,
1065–66 (D.C. Cir. 2014), the
organization claimed it would be
‘‘arbitrary and capricious’’ for the
Departments to account for costs and
benefits in favor of this proposal that are
identical to the costs and benefits
‘‘already priced into the other revisions
of the same provision.’’ 85 The
organization contended that there is no
indication in the rule that the
Departments have attempted to identify
such overlap.
Commenters disagreed with the
Department’s assertion, pursuant to the
Regulatory Flexibility Act (‘‘RFA’’)
requirements, that the rule would ‘‘not
have a significant economic impact on
a substantial number of small entities’’
and that the rule only regulates
individuals and not small entities. 85
FR at 36288–89. For example,
commenters argued that the combined
effect of the rule’s provisions would,
inter alia, affect how practitioners
accept cases, manage dockets, or assess
fees. Commenters asserted that these
effects would, in turn, impact the
overall ability of practitioners to provide
services and affect aliens’ access to
representation. In addition, commenters
stated that these changes demonstrate
the rule would in fact regulate small
entities, namely the law firms or other
organizations who appear before the
Departments.
Response: The Departments agree
with commenters that the rule is a
‘‘significant regulatory action.’’ As
stated in the proposed rule at section
V.D, the rule was considered a
‘‘significant regulatory action.’’ 85 FR at
36289. As a result, the rule was
submitted to the Office of Management
and Budget for review, and the
Departments included the required
analysis of the rule’s costs and benefits.
Id. at 36289–90.
Regarding commenters’ concerns that
the analysis failed to consider intangible
costs like alleged costs to the United
States’ reputation or the lost ‘‘talent,
diversity, and innovation’’ from asylees,
85 The Departments note that reliance on CSX
Transportation is misplaced because that case
involved the agency’s consideration of costs to
determine a maximum relief penalty amount and
was not related to the consideration of costs in the
context of an agency’s required cost-benefit
analysis.
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the Departments note that such alleged
costs are, in fact, the nonquantifiable
opinions of the commenters. The
Departments are not required to analyze
opinions. Even if commenters’ opinions
about intangible concepts without clear
definitions could be translated into
measurable or qualitatively discrete
considerations the Departments are
unaware of any standard or metric to
evaluate the cost of concepts such a
country’s reputation or ‘‘innovation.’’
Moreover, the fact-specific nature of
asylum applications and the lack of
granular data on the facts of every
asylum application prevent the
Departments from quantifying particular
costs. Further, although Executive Order
12866 observes that nonquantifiable
costs are important to consider, the
order requires their consideration only
to the extent that they can be usefully
estimated, and the Departments
properly assessed the rules using
appropriate qualitative considerations.
See 85 FR at 36289–90.
As stated above in Section II.C.6.9 of
this preamble, each of the Departments’
regulations stands on its own. This
regulation is not ‘‘inconsistent,
incompatible, or duplicative’’ with other
proposed or final rules published by the
Departments, and the Departments
disagree with the implication that all
rules that would affect one underlying
area of the Act, such as asylum
eligibility, must be issued in one single
rulemaking to comply with Executive
Order 12866. Cf. Ctr. for Biological
Diversity v. EPA, 722 F.3d 401, 410
(D.C. Cir. 2013) (agencies have
discretion to address an issue through
different rulemakings over time).
As noted in the NPRM, the
Departments believe that the rule will
provide a significant net benefit by
allowing for the expeditious and
efficient resolution of asylum cases by
reducing the number of meritless claims
before the immigration courts, thereby
providing the Departments with ‘‘the
ability to more promptly grant relief or
protection to qualifying aliens.’’ 85 FR
at 36290. These benefits will ensure that
the Departments’ case volumes do not
increase to an insurmountable degree,
which in turn will leave additional
resources available for a greater number
of asylum seekers. Contrary to
commenters’ claims, the rule will not
prevent aliens from submitting asylum
applications or receiving relief or
protection in appropriate cases.
Moreover, the rule is not imposing any
new costs on asylum seekers.
Additionally, any costs imposed on
attorneys or representatives for asylum
seekers will be minimal and limited to
the time it will take to become familiar
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with the rule. Immigration practitioners
are already subject to professional
responsibility rules regarding workload
management, 8 CFR 1003.102(q)(1), and
are already accustomed to changes in
asylum law based on the issuance of
new precedential decisions from the
BIA or the courts of appeals.
Also, although becoming familiar
with such a decision or with this rule
may require a certain, albeit small,
amount of time, any time spent on this
process will likely be offset by the
future benefits of the rule. Indeed, one
purpose of the rule is to encourage
clearer and more efficient adjudications,
see e.g., 85 FR at 36290, thus reducing
the need for practitioners to become
familiar with the inefficient, case-bycase approach that is currently
employed for adjudicating issues such
as firm resettlement. In addition, the
Departments note that the prospective
application of the rule will further
diminish the effect of the rule on
practitioners, as no practitioners will be
required to reevaluate any cases or
arguments that they are currently
pursuing.
The Departments also reject the
assertion that the rule would have a
significant impact on small entities. The
rule applies to asylum applicants, who
are individuals, not entities. See 5
U.S.C. 601(6). The rule does not limit in
any way the ability of practitioners to
accept cases, manage dockets, or assess
fees. Indeed, nothing in the rule in any
fashion regulates the legal
representatives of such individuals or
the organizations by which those
representatives are employed, and the
Departments are unaware of cases in
which the RFA’s requirements have
been applied to legal representatives of
entities subject to its provisions, in
addition to or in lieu of the entities
themselves. See 5 U.S.C. 603(b)(3)
(requiring that an RFA analysis include
a description of and, if feasible, an
estimate of the number of ‘‘small
entities’’ to which the rule ‘‘will
apply’’). To the contrary, case law
indicates that indirect effects on entities
not regulated by a proposed rule are not
subject to an RFA analysis. See, e.g.,
Mid-Tex Elec. Co-op, Inc. v. FERC, 773
F.2d 327, 342–43 (D.C. Cir. 1985) (‘‘[W]e
conclude that an agency may properly
certify that no regulatory flexibility
analysis is necessary when it determines
that the rule will not have a significant
economic impact on a substantial
number of small entities that are subject
to the requirements of the rule. . . .
Congress did not intend to require that
every agency consider every indirect
effect that any regulation might have on
small businesses in any stratum of the
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national economy. That is a very broad
and ambitious agenda, and we think
that Congress is unlikely to have
embarked on such a course without
airing the matter.’’); Cement Kiln
Recycling Coalition v. EPA, 255 F.3d
855, 869 (D.C. Cir. 2001) (‘‘Contrary to
what [petitioner] supposes, application
of the RFA does turn on whether
particular entities are the ‘targets’ of a
given rule. The statute requires that the
agency conduct the relevant analysis or
certify ‘no impact’ for those small
businesses that are ‘subject to’ the
regulation, that is, those to which the
regulation ‘will apply.’. . . The rule
will doubtless have economic impacts
in many sectors of the economy. But to
require an agency to assess the impact
on all of the nation’s small businesses
possibly affected by a rule would be to
convert every rulemaking process into a
massive exercise in economic modeling,
an approach we have already rejected.’’
(citing Mid-Tex, 773 F.2d 327 at 343));
see also White Eagle Co-op Ass’n v.
Conner, 553 F.3d 467, 480 (7th Cir.
2009) (‘‘The rule that emerges from this
line of cases is that small entities
directly regulated by the proposed
[rulemaking]—whose conduct is
circumscribed or mandated—may bring
a challenge to the RFA analysis or
certification of an agency. . . .
However, when the regulation reaches
small entities only indirectly, they do
not have standing to bring an RFA
challenge.’’).
Further, DOJ reached a similar
conclusion in 1997 involving a broader
rulemaking regarding asylum
adjudications. See Inspection and
Expedited Removal of Aliens; Detention
and Removal of Aliens; Conduct of
Removal Proceedings; Asylum
Procedures, 62 FR 444, 453 (Jan. 3,
1997) (certifying that the rule would not
have a significant impact on a
substantial number of small entities
because it ‘‘affects only Federal
government operations’’ by revising the
procedures for the ‘‘examination,
detention, and removal of aliens’’). That
conclusion was reiterated in the interim
rule, 62 FR 10312, 10328 (Mar. 6, 1997),
which was adopted with no noted
challenge or dispute. This final rule is
similar, in that it, too, affects only the
operations of the Federal government by
amending a subset of the procedures the
government uses to process certain
aliens. The Departments thus believe
that the experience of implementing the
prior rule supports their conclusion that
there is no evidence that the current
rule will have a significant impact on
small entities as contemplated by the
RFA or an applicable executive order.
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6.10. Trafficking Victims Protection
Reauthorization Act
Comment: Commenters argued that
the proposed rule violates the William
Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008
(‘‘TVPRA’’), Public Law 110–457, 122
Stat. 5044, by failing to consider its
impact on applications for relief
submitted by UAC. Specifically,
commenters cited the TVPRA’s
instruction that ‘‘[a]pplications for
asylum and other forms of relief from
removal in which an unaccompanied
alien child is the principal applicant
shall be governed by regulations which
take into account the specialized needs
of unaccompanied alien children and
which address both procedural and
substantive aspects of handling
unaccompanied alien children’s cases.’’
8 U.S.C. 1232(d)(8). Commenters
averred that the rule fails to consider
how UAC are subjected to and affected
by persecution and other harm as well
as the particular vulnerabilities of UAC.
Moreover, commenters argued that
the proposed rule violates both the text
and the spirit of the TVPRA by creating
additional hurdles that increase the risk
that UAC will be unable to meaningfully
participate in the adjudication of their
claims for relief. Specifically,
commenters averred that it was unlikely
that Congress would have provided
protections to UAC from the bars to
asylum related to the one-year filing
deadline and the safe third country,
only to then allow immigration judges
to pretermit applications for asylum
without a hearing.
One organizational commenter
criticized the proposed rule’s lack of
‘‘meaningful discussion’’ regarding how
the new procedures would interact with
USCIS’s initial jurisdiction over
applications for asylum from UAC.
Commenters also stated that the
proposed rule may result in confusion if
an immigration judge exercises
jurisdiction over a UAC’s application
that is pending before USCIS. If this
were to occur, commenters alleged, the
UAC may be required to submit two
applications for asylum and also be
required to demonstrate an exception to
the one-year filing deadline that would
not have been applicable to the
application before USCIS.
Commenters also asserted that the
new discretionary factor regarding
accrual of one year or more of unlawful
presence would act as a bar to asylum
in direct contradiction of Congress’s
recognition of the need to exempt UACs
from the one-year filing deadline.
Although commenters acknowledged
that this is a discretionary factor and not
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an outright bar, commenters asserted
that even including this as a
discretionary factor is contrary to
Congress’s intent.
Commenters stated that, based on the
proposed regulatory language and
accompanying preamble language, it is
unclear whether asylum officers would
be permitted to render a determination
that an asylum application is frivolous
for UAC who file defensive applications
before USCIS in the first instance. By
permitting the asylum officer to focus
on matters that may be frivolous if the
asylum officer identifies indicators of
frivolousness, commenters asserted, the
interview would become adversarial, in
contradiction of Congress’s purpose of
granting UAC the non-adversarial,
child-appropriate setting of an asylum
interview for initial review of the
asylum application.
Response: As recognized in the
proposed rule, UAC 86 are not subjected
to expedited removal. See 8 U.S.C.
1232(a)(5)(D)(i). Regarding the
remainder of the rule, the rule does not
violate the TVPRA. The TVPRA enacted
multiple procedures and protections
specific to UAC that do not apply to
other similarly-situated asylum
applicants. Although UAC are not
subject to either the safe third country
exception or the requirement to file an
application within one year following
the alien’s arrival in the United States,
INA 208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E),
Congress did not exempt UAC from all
bars to asylum eligibility. As a result,
UAC, like all asylum seekers, (1) may
not apply for asylum if they previously
applied for asylum and their application
was denied, INA 208(a)(2)(C), 8 U.S.C.
1158(a)(2)(C), and (2) are ineligible for
asylum if they are subject to any of the
mandatory bars at section
208(b)(2)(A)(i)–(vi) of the Act, 8 U.S.C.
1158(b)(2)(A)(i)–(vi), or if they are
subject to any additional bars
implemented pursuant to the Attorney
General’s and Secretary’s authority to
establish additional limitations on
asylum eligibility by regulation, see INA
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). That
Congress did not exempt UAC from all
bars indicates congressional intent to
hold UAC to the same standards to
establish eligibility for asylum as other
similarly situated applicants unless
specifically exempted.
Contrary to commenters’ suggestion,
this rule does not alter asylum officers’
jurisdiction over asylum applications
86 UAC are children who (1) have no lawful
immigration status in the United States, (2) are
under the age of 18, and (3) do not have a parent
or legal guardian in the United States or, if in the
United States, available to provide care and
physical custody. 6 U.S.C. 279(g)(2).
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from UAC. See INA 208(b)(3)(C), 8
U.S.C. 1158(b)(3)(C). If UAC are placed
in removal proceedings under section
240 of the Act, 8 U.S.C. 1229a, and raise
asylum claims, immigration judges will
continue to refer the claims to asylum
officers pursuant to the TVPRA,
consistent with the asylum statute and
procedures in place prior to the
promulgation of this rule. See INA
208(b)(3)(C), 8 U.S.C 1158(b)(3)(C).
Those asylum officers will determine
whether the UAC are eligible for asylum
on the basis of this rule. This rule does
not affect any other procedure or
protection implemented by the TVPRA.
The Departments disagree that the
rule undermines the spirit of the TVPRA
by adding accrual of unlawful presence
for one year or more as a negative
discretionary factor. Although the
NPRM may have been unclear on the
point, its citation to INA 212(a)(9)(B)
and (C), 8 U.S.C. 1182(a)(9)(B) and (C),
85 FR at 36284, indicated that its intent
was for the phrase ‘‘unlawful presence’’
to have the same meaning as in INA
212(a)(9)(B)(ii) and (iii), 8 U.S.C.
1182(a)(9)(B)(ii) and (iii). Under INA
212(a)(9)(B)(iii)(I), 8 U.S.C.
1182(a)(9)(B)(iii)(I), aliens under the age
of 18, such as UAC, do not accrue
unlawful presence. Thus, commenters’
concerns are unfounded, and the
Departments are clarifying that point in
the final rule.
Further, the Departments have
concluded that the safeguards in place
for allowing asylum officers to make a
finding that an asylum application is
frivolous are sufficient to protect UAC
in the application process.87 Even if an
asylum officer finds an application is
frivolous, the application is referred to
an immigration judge, who provides
review of the determination. The
asylum officer’s determination does not
render the applicant permanently
ineligible for immigration benefits
unless the immigration judge or the BIA
also makes a finding of frivolousness. 8
CFR 208.20(b), 1208.20(b). Further,
asylum officers continue to conduct
child appropriate interviews by taking
into account age, stage of language
development, background, and level of
sophistication. See USCIS, Interviewing
Procedures for Minor Applicants (Aug.
6, 2020), https://www.uscis.gov/
humanitarian/refugees-and-asylum/
asylum/minor-children-applying-forasylum-by-themselves.
Finally, the Departments note that, for
UAC who are not eligible for asylum
87 As a practical matter, the Departments note that
the statutory mens rea requirement that a frivolous
asylum application be ‘‘knowingly’’ filed will likely
preclude a frivolousness finding against very young
UAC.
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under this rule but who may still be
eligible for withholding of removal
under section 241 of the Act, 8 U.S.C.
1231, or protection under the CAT
regulations, DOJ is cognizant of the
‘‘special circumstances’’ often presented
by juvenile respondents in immigration
proceedings. DOJ’s immigration judges
may make certain modifications to
ordinary courtroom proceedings to
account for juvenile respondents that
would not be made for adult
respondents. See EOIR, Operating
Policies and Procedures Memorandum
17–03: Guidelines for Immigration Court
Cases Involving Juveniles, Including
Unaccompanied Alien Children 4–6
(Dec. 20, 2017), https://www.justice.gov/
eoir/file/oppm17-03/download; see also
id. at 7 (directing immigration judges to
take ‘‘special care’’ in cases involving
UAC by, for example, expediting the
consideration of requests for voluntary
departure).
In short, the Departments have fully
considered whether the rule will have
any particular impacts on UAC that are
not already accounted for in existing
law or are not addressed in the rule
itself. The Departments have also fully
considered commenters’ concerns.
Thus, for the reasons given above, the
Departments believe that the rule does
not have an unlawful impact on minors
in general or on UAC in particular.
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7. Retroactive Applicability
Comment: One organization stated
generally that nearly all of the NPRM’s
provisions are illegally retroactive in
effect. Multiple commenters noted that,
although the NPRM seeks to make its
frivolous definition prospective only in
application, see 85 FR at 36304, it is
silent as to whether its other provisions
would apply retroactively. As a result,
one organization claimed, the inference
is that the Departments intend each of
the NPRM’s remaining provisions to
apply to applications that are pending at
the time the rule becomes effective. The
organization alleged that this would
violate the presumption against
retroactivity, noting that a regulation
cannot be applied retroactively unless
Congress has provided a clear statement
that the agencies may promulgate
regulations with that effect. See INS v.
St. Cyr, 533 U.S. 289, 316–17 (2001).
The organization also claimed there is
no statute authorizing the Departments
to promulgate regulatory changes to
asylum that have retroactive effect,
contending the provisions of the NPRM
would either impair rights concerning,
or place new disabilities on, asylum
applications already filed. The
organization alleged that the proposed
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changes in the NPRM would harm
asylum seekers.
At least one organization claimed that
the NPRM’s substantive standards
would have an impermissible
retroactive effect on pending
applications. One organization alleged
that each standard, including the list of
bars to the favorable exercise of
discretion, would overrule BIA
precedent, attempt to overrule Federal
appellate court precedent, shift burdens
of proof, or otherwise change settled
law. Another organization noted that
there are currently more than 300,000
asylum cases pending before the asylum
office and almost 1.2 million cases
pending before the U.S. immigration
courts, many of which include asylum
applications. The organization argued
that, if the rule is finalized, the
Departments ‘‘must clarify’’ that its
provisions will not be applied
retroactively.
One commenter claimed that if the
rule is enacted with the retroactive
provisions intact, it will immediately be
enjoined.
At least one commenter expressed
concern that, if the NPRM is applied
retroactively, there will be ‘‘mass
denials which violate due process,’’ and
the Departments will be ‘‘tied up in
Federal court for the next decade.’’ At
least one commenter contended that
Congress will cease to fund the
Departments because it will recognize
that the money will be used to fund the
attorney fees of litigants pursuant to the
Equal Access to Justice Act ‘‘after
countless litigants prevail in their suits
against [the Departments].’’
At least one commenter claimed that,
because the Supreme Court is currently
attempting to ‘‘reign in the
administrative state’’ and Congress is
‘‘fed up’’ with agency waste, the
Departments are ‘‘signing their own
death warrants’’ by seeking to enact the
proposed rule. At least one commenter
suggested the Departments’ goal is to
‘‘[s]hut down legal immigration by
convincing Congress to defund the only
agencies capable of adjudicating
immigration petitions,’’ suggesting this
is ‘‘treasonous’’ and claiming that those
who want to end legal immigration are
in the extreme minority. At least one
commenter emphasized that legal
immigration is beneficial to the national
economy but suggested this does not
matter if those who care ‘‘are not in a
position to stop the train before it drives
off a cliff.’’
At least one organization claimed that
the hundreds of thousands of pending
asylum applications implicate a reliance
interest in ‘‘the state of the law as it
stands.’’ At least one organization
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alleged that this reliance interest is
‘‘further prejudiced’’ by the 30-day
comment period allowed by the
Departments, contending that ‘‘in one
swoop, previously eligible applicants
may find themselves ineligible without
any warning.’’
Another organization expressed
particular concern for LGBTQ
applicants, claiming that applying the
rule’s standards to over 800,000 pending
applications violates Fifth Amendment
due process rights that apply ‘‘equally to
all people in the United States.’’ One
organization emphasized that the rule
would apply to individuals, many of
whom have U.S.-born children, who
have already applied for asylum and are
waiting on a hearing or interview.
Response: Although the Departments
believe that substantial portions of the
rule are most appropriately classified as
a clarification of existing law rather than
an alteration of prior substantive law,
see Levy v. Sterling Holding Co., LLC,
544 F.3d 493, 506 (3d Cir. 2008) (‘‘Thus,
where a new rule constitutes a
clarification—rather than a substantive
change—of the law as it existed
beforehand, the application of that new
rule to pre-promulgation conduct
necessarily does not have an
impermissible retroactive effect,
regardless of whether Congress has
delegated retroactive rulemaking power
to the agency.’’ (emphasis in original)),
they nevertheless recognize that the
potential retroactivity of the rule was
not clear in the NPRM. Accordingly, to
the extent that the rule changes any
existing law, the Departments are
electing to make the rule prospective to
apply to all asylum applications—
including applications for statutory
withholding of removal and protection
under the CAT regulations—filed on or
after its effective date and, for purposes
of the changes to the credible fear and
related screening procedures, and
reasonable fear review procedures, to all
aliens apprehended or otherwise
encountered by DHS on or after the
effective date.88 Nevertheless, to the
extent that the rule merely codifies
existing law or authority, nothing in the
rule precludes adjudicators from
88 In addition to serving as a bar to refugee
admission and the granting of asylum, the concept
of firm resettlement also operates as a bar to the
adjustment of status of an asylee. INA 209(b)(4), 8
U.S.C. 1159(b)(4); 8 CFR 209.2(a)(1)(iv) and
1209.2(a)(1)(iv). Consistent with the prospective
nature of the rule, the Departments will apply the
new regulatory definitions of ‘‘firm resettlement’’ in
8 CFR 208.15 and 1208.15 for purposes of INA
209(b)(4), 8 U.S.C. 1159(b)(4), only to aliens who
apply for asylum, are granted asylum, and then
subsequently apply for adjustment of status, where
all of these events occur on or after the effective
date of this rule.
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applying that existing authority to
pending cases independently of the
prospective application of the rule.89
The Departments decline to respond
to commenters’ assertions about
potential implications that the rule’s
application to pending cases may have,
such as ‘‘mass denials’’ of asylum
applications and impact on future
appropriations, as such comments are
both unmoored from a reasonable basis
in fact and wholly speculative due to
the case-by-case and fact-intensive
nature of many asylum-application
adjudications. Further, as noted, the
Departments are applying the rule
prospectively, so the underlying factual
premise of the commenters’ concern is
erroneous.
8. Miscellaneous/Other Points
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8.1. Likelihood of Litigation
Comment: Commenters opposed the
rule because it would ‘‘create a flurry of
litigation’’ causing ‘‘fundamental
aspects of immigration law [to] remain
uncertain for many years.’’
Response: The Departments recognize
that litigation, including the potential
for an initial nationwide injunction, has
become almost inevitable regarding any
immigration policy or regulation that
does not provide a perceived benefit to
aliens, and they are aware that litigation
will likely follow this rule, just as it has
others of similar scope. Cf. DHS v. New
York, 140 S. Ct. 599, 599 (2020)
(Gorsuch, J. concurring in the grant of a
stay) (‘‘On October 10, 2018, the
Department of Homeland Security began
a rulemaking process to define the term
‘public charge,’ as it is used in the
Nation’s immigration laws.
89 For example, the rule states that the Secretary
or Attorney General, subject to an exception, will
not favorably exercise discretion in adjudicating an
asylum application for an alien who has failed to
satisfy certain tax obligations. 8 CFR
208.13(d)(2)(i)(E) and 1208.13(d)(2)(i)(E). That
provision applies only to asylum applications filed
on or after the effective date of the rule. However,
the rule does not preclude the consideration of
unfulfilled tax obligations as a discretionary
consideration in adjudicating a pending asylum
application based on established case law that may
be applied to pending applications. See, e.g., Matter
of A–H–, 23 I&N Dec. at 782–83 (‘‘Moreover, certain
additional factors weigh against asylum for
respondent: Specifically, respondent testified that
he received money from overseas for his political
work, yet he never filed income tax returns in the
United States and his children nevertheless
received financial assistance from the
Commonwealth of Virginia. Respondent’s apparent
tax violations and his abuse of a system designed
to provide relief to the needy exhibit both a
disrespect for the rule of law and a willingness to
gain advantage at the expense of those who are
more deserving.’’ (footnote omitted)). In short,
existing law will continue to apply to asylum
applications filed prior to the effective date of this
rule, regardless of whether that law is altered or
incorporated into the rule.
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Approximately 10 months and 266,000
comments later, the agency issued a
final rule. Litigation swiftly followed,
with a number of States, organizations,
and individual plaintiffs variously
alleging that the new definition violates
the Constitution, the Administrative
Procedure Act, and the immigration
laws themselves. These plaintiffs have
urged courts to enjoin the rule’s
enforcement not only as it applies to
them, or even to some definable group
having something to do with their
claimed injury, but as it applies to
anyone.’’). The Departments are also
aware of the pernicious effects of
nationwide injunctions. See, e.g.,
Trump v. Hawaii, 138 S. Ct. 2392, 2424–
25 (2018) (Thomas, J. concurring)
(‘‘Injunctions that prohibit the Executive
Branch from applying a law or policy
against anyone—often called ‘universal’
or ‘nationwide’ injunctions—have
become increasingly common. District
courts, including the one here, have
begun imposing universal injunctions
without considering their authority to
grant such sweeping relief. These
injunctions are beginning to take a toll
on the Federal court system—preventing
legal questions from percolating through
the Federal courts, encouraging forum
shopping, and making every case a
national emergency for the courts and
for the Executive Branch.’’ (footnote
omitted)). The Departments do not
believe, however, that the inevitability
of litigation over contested issues is a
sufficient basis to stop them from
exercising statutory and regulatory
prerogatives in furtherance of the law
and the policies of the Executive
Branch. Accordingly, the Departments
decline the invitation to withdraw the
rule due to the threat of litigation.
8.2. DHS Officials
Comment: Commenters also argued
that the proposed rule is procedurally
invalid due to concerns with the
authority of multiple DHS officials.
Commenters stated that the rule is
invalid because of the service of Ken
Cuccinelli at USCIS. For example,
commenters cited L.M.–M. v. Cuccinelli,
442 F. Supp. 3d 1 (D.D.C. 2020), in
support of the argument that ‘‘Mr.
Cuccinelli’s unlawful appointment
invalidates any regulations that might
be put into effect, implemented, or
adopted during his tenure at USCIS.’’
Commenters further noted that Mr.
Cuccinelli began serving as the head of
USCIS over one year ago, on June 10,
2019, despite the 210-day limitation for
temporary appointments to senateconfirmed positions implemented by
the Federal Vacancies Reform Act of
1998 (‘‘FVRA’’), Public Law 105–277,
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sec. 151, 112 Stat. 2681, 2681–612
through 2618–13 (codified at 5 U.S.C.
3346).
Similarly, commenters stated that
Acting Secretary Chad Wolf and Chad
Mizelle, the Senior Official Performing
the Duties of the General Counsel, both
are serving in violation of the FVRA
and, accordingly, both lack signature
authority that has force or effect. See 5
U.S.C. 3348(d)(1).
Response: Neither the NPRM nor this
final rule was signed by Mr. Cuccinelli.
Thus, the status of Mr. Cuccinelli’s
service within the Department is
immaterial to the lawfulness of this rule.
The NPRM and this final rule were
signed by Chad Mizelle, the Senior
Official Performing the Duties of the
General Counsel for DHS, and not by
Ken Cuccinelli. As indicated in the
proposed rule at Section V.H, Chad
Wolf, the Acting Secretary of Homeland
Security, reviewed and approved the
proposed rule and delegated the
signature authority to Mr. Mizelle.
Secretary Wolf is validly acting as
Secretary of Homeland Security. On
April 9, 2019, then-Secretary Nielsen,
who was Senate confirmed, used the
authority provided by 6 U.S.C. 113(g)(2)
to establish the order of succession for
the Secretary of Homeland Security.
This change to the order of succession
applied to any vacancy. This exercise of
the authority to establish an order of
succession for DHS pursuant to 6 U.S.C.
113(g)(2) superseded the FVRA and the
order of succession found in Executive
Order 13753, 81 FR 90667 (Dec. 9,
2016). As a result of this change, and
pursuant to 6 U.S.C. 113(g)(2), Kevin K.
McAleenan, who was Senate-confirmed
as the Commissioner of CBP, was the
next successor and served as Acting
Secretary without time limitation.
Acting Secretary McAleenan
subsequently amended the Secretary’s
order of succession pursuant to 6 U.S.C.
113(g)(2), placing the Under Secretary
for Strategy, Policy, and Plans position
third in the order of succession, below
the positions of the Deputy Secretary
and Under Secretary for Management.
Because the Deputy Secretary and
Under Secretary for Management
positions were vacant when Mr.
McAleenan resigned, Mr. Wolf, as the
Senate-confirmed Under Secretary for
Strategy, Policy, and Plans, was the next
successor and began serving as the
Acting Secretary.
Further, because he has been serving
as the Acting Secretary pursuant to an
order of succession established under 6
U.S.C. 113(g)(2), the FVRA’s prohibition
on a nominee’s acting service while his
or her nomination is pending does not
apply, and Mr. Wolf remains the Acting
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Secretary notwithstanding President
Trump’s September 10 transmission to
the Senate of Mr. Wolf’s nomination to
serve as DHS Secretary. Compare 6
U.S.C. 113(a)(1)(A) (cross-referencing
the FVRA without the
‘‘notwithstanding’’ caveat), with id.
113(g)(1)–(2) (noting the FVRA
provisions and specifying, in contrast,
that section 113(g) provides for acting
secretary service ‘‘notwithstanding’’
those provisions); see also 5 U.S.C.
3345(b)(1)(B) (restricting acting officer
service under section 3345(a), in
particular, by an official whose
nomination has been submitted to the
Senate for permanent service in that
position).
That said, there have been recent
challenges to whether Mr. Wolf’s service
is invalid, resting on the erroneous
contentions that the orders of
succession issued by former Secretary
Nielsen and former Acting Secretary
McAleenan were invalid. The
Departments believe those challenges
are not based on an accurate view of the
law. But even if those contentions are
legally correct—meaning that neither
former Secretary Nielsen nor former
Acting Secretary McAleenan issued a
valid order of succession under 6 U.S.C.
113(g)(2)—then the FVRA would have
applied, and Executive Order 13753
would have governed the order of
succession for the Secretary of
Homeland Security from the date of
Nielsen’s resignation.
The FVRA provides an alternative
basis for an official to exercise the
functions and duties of the Secretary
temporarily in an acting capacity. In
that alternate scenario, under the
authority of the FVRA, Mr. Wolf would
have been ineligible to serve as the
Acting Secretary of DHS after his
nomination was submitted to the
Senate, see 5 U.S.C. 3345(b)(1)(B), and
Peter Gaynor, the Administrator of the
Federal Emergency Management Agency
(‘‘FEMA’’), would have—by operation of
Executive Order 13753—become eligible
to exercise the functions and duties of
the Secretary temporarily in an acting
capacity. This is because Executive
Order 13753 pre-established the
President’s succession order for DHS
when the FVRA applies. Mr. Gaynor
would have been the most senior official
eligible to exercise the functions and
duties of the Secretary under that
succession order, and thus would have
become the official eligible to act as
Secretary once Mr. Wolf’s nomination
was submitted to the Senate. See 5
U.S.C. 3346(a)(2). Then, in this alternate
scenario in which, as assumed above,
there was no valid succession order
under 6 U.S.C. 113(g)(2), the submission
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of Mr. Wolf’s nomination to the Senate
would have restarted the FVRA’s time
limits. See 5 U.S.C. 3346(a)(2).
Out of an abundance of caution, and
to minimize any disruption to DHS and
to the Administration’s goal of
maintaining homeland security, on
November 14, 2020, with Mr. Wolf’s
nomination still pending in the Senate,
Mr. Gaynor exercised the authority of
Acting Secretary that he would have
had (in the absence of any governing
succession order under 6 U.S.C.
113(g)(2)) to designate a new order of
succession under 6 U.S.C. 113(g)(2) (the
‘‘Gaynor Order’’).90 In particular, Mr.
Gaynor issued an order of succession
with the same ordering of positions
listed in former Acting Secretary
McAleenan’s November 2019 order. The
Gaynor Order thus placed the Under
Secretary for Strategy, Policy, and Plans
above the FEMA Administrator in the
order of succession. Once the Gaynor
Order was executed, it superseded any
authority Mr. Gaynor may have had
under the FVRA and confirmed Mr.
Wolf’s authority to continue to serve as
the Acting Secretary. Hence, regardless
of whether Mr. Wolf already possessed
authority pursuant to the November 8,
2019, order of succession effectuated by
former Acting Secretary McAleenan (as
the Departments have previously
concluded), the Gaynor Order provides
an alternative basis for concluding that
Mr. Wolf currently serves as the Acting
Secretary.91
90 Mr. Gaynor signed an order that established an
identical order of succession on September 10,
2020, the day Mr. Wolf’s nomination was
submitted, but it appears he signed that order before
the nomination was received by the Senate. To
resolve any concern that his September 10 order
was ineffective, Mr. Gaynor signed a new order on
November 14, 2020. Prior to Mr. Gaynor’s new
order, the U.S. District Court for the District of New
York issued an opinion concluding that Mr. Gaynor
did not have authority to act as Secretary, relying
in part on the fact that DHS did not notify Congress
of Administrator Gaynor’s service, as required
under 5 U.S.C. 3349(a). See Batalla Vidal v. Wolf,
No. 16CV4756NGGVMS, 2020 WL 6695076, at *9
(E.D.N.Y. Nov. 14, 2020). The Departments disagree
that the FVRA’s notice requirement affects the
validity of an acting officer’s service; nowhere does
section 3349 indicate that agency reporting
obligations are tied to an acting officer’s ability to
serve.
91 On October 9, 2020, the U.S. District Court for
the District of Columbia issued an opinion
indicating that it is likely that section 113(g)(2)
orders can be issued by only Senate-confirmed
secretaries of DHS and, thus, that Mr. Gaynor likely
had no authority to issue a section 113(g)(2)
succession order. See Nw. Immigrant Rights Project
v. United States Citizenship & Immigration Servs.,
No. CV 19–3283 (RDM), 2020 WL 5995206, at *24
(D.D.C. Oct. 8, 2020). This decision is incorrect
because the authority in section 113(g)(2) allows
‘‘the Secretary’’ to designate an order of succession,
see 6 U.S.C. 113(g)(2), and an ‘‘acting officer is
vested with the same authority that could be
exercised by the officer for whom he acts.’’ In re
Grand Jury Investigation, 916 F.3d 1047, 1055 (D.C.
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On November 16, 2020, Acting
Secretary Wolf ratified any and all
actions involving delegable duties that
he took between November 13, 2019,
through November 16 2020, including
the NPRM that is the subject of this
rulemaking.
Under section 103(a)(1) of the Act, 8
U.S.C. 1103(a)(1), the Secretary is
charged with the administration and
enforcement of the INA and all other
immigration laws (except for the
powers, functions, and duties of the
President, the Attorney General, and
certain consular, diplomatic, and
Department of State officials). The
Secretary is also authorized to delegate
his or her authority to any officer or
employee of the agency and to designate
other officers of the Department to serve
as Acting Secretary. See INA 103, 8
U.S.C. 1103, and 6 U.S.C. 113(g)(2). The
HSA further provides that every officer
of the Department ‘‘shall perform the
functions specified by law for the
official’s office or prescribed by the
Secretary.’’ 6 U.S.C. 113(f). Thus, the
designation of the signature authority
from Acting Secretary Wolf to Mr.
Mizelle is validly within the Acting
Secretary’s authority.
8.3. Article I Immigration Courts
Comment: At least one commenter,
the former union representing
immigration judges, expressed a belief
that the immigration courts and the BIA
should be moved from within DOJ in
the Executive Branch into an
independent article I court system.92
The commenter indicated that such a
move would address ‘‘political
influence’’ and ensure ‘‘neutral decision
making.’’
Response: Immigration judges are
required to adjudicate cases in an
‘‘impartial manner,’’ 8 CFR 1003.10(b);
they exercise ‘‘independent judgment
and discretion,’’ id.; and they ‘‘should
not be swayed by partisan interests or
public clamor,’’ EOIR, Ethics and
Professionalism Guide for Immigration
Cir. 2019). The Acting Secretary of DHS is
accordingly empowered to exercise the authority of
‘‘the Secretary’’ of DHS to ‘‘designate [an] order of
succession.’’ 6 U.S.C. 113(g)(2). In addition, this is
the only district court opinion to have reached such
a conclusion about the authority of the Acting
Secretary, and the Departments are contesting that
determination.
92 On November 2, 2020, the Federal Labor
Relations Authority ruled that immigration judges
are management officials for purposes of 5 U.S.C.
7103(a)(11), and, thus, excluded from a bargaining
unit pursuant to 5 U.S.C. 7112(b)(1). U.S. Dept. of
Justice, Exec. Office for Immigration Review and
National Association of Immigration Judges, Int’l
Fed. of Prof. and Tech. Engineers Judicial Council
2, 71 FLRA No. 207 (2020). That decision
effectively decertified the union that previously
represented a bargaining unit of non-supervisory
immigration judges.
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Judges, sec. VIII (Jan. 26, 2011), https://
www.justice.gov/sites/default/files/eoir/
legacy/2013/05/23/Ethicsand
ProfessionalismGuideforIJs.pdf. To the
extent that a union which represented
immigration judges suggests that the
members of its former bargaining unit
do not engage in ‘‘neutral decision
making’’ or are currently swayed by
partisan influence in derogation of their
ethical obligations, the Departments
respectfully disagree, and note that the
issue is one to be resolved between the
former union and the members of its
former bargaining unit, rather than
through a rulemaking. The Departments
are also unaware of any complaints filed
by the former union regarding any
specific immigration judges who have
failed to engage in neutral decision
making. In short, the commenter’s
premise is unfounded in either fact or
law.
Otherwise, the recommendation is
both beyond the scope of this
rulemaking and the Departments’
authority. Congress has the sole
authority to create an article I court. E.g.
26 U.S.C. 7441 (‘‘There is hereby
established, under article I of the
Constitution of the United States, a
court of record to be known as the
United States Tax Court.’’). Despite this
authority, Congress has provided for a
system of administrative hearings for
immigration cases, see, e.g., INA 240, 8
U.S.C. 1229a (laying out administrative
procedures for removal proceedings),
which the Departments believe should
be maintained. Cf. Strengthening and
Reforming America’s Immigration Court
System: Hearing before the Subcomm.
on Border Sec. & Immigration of the S.
Comm. on the Judiciary, 115th Cong.
(2018) (written response to Questions
for the Record of James McHenry,
Director, EOIR) (‘‘The financial costs
and logistical hurdles to implementing
an Article I immigration court system
would be monumental and would likely
delay pending cases even further.’’).
9. Severability
Comment: Some commenters
disagreed with the Departments’
inclusion of severability provisions in
the rule. See 8 CFR 208.25, 235.6(c),
1003.42(i), 1208.25, 1212.13, 1235.6(c).
For example, at least one commenter
stated that the severability provisions
conflict with the premise that all the
provisions in the rule are related.
Another commenter disagreed with the
severability provisions, stating that the
rule should instead be struck in its
entirety.
Response: The changes made by the
rule function sensibly independent of
the other provisions. As a result, the
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Departments included severability
language for each affected part of title 8
CFR. 8 CFR 208.25, 235.6(c), 1003.42(i),
1208.25, 1212.13, 1235.6(c). In other
words, the Departments included these
severability provisions to clearly
illustrate the Departments’ belief that
the severance of any affected sections
‘‘will not impair the function of the
statute as a whole’’ and that the
Departments would have enacted the
remaining regulatory provisions even
without any others. See K Mart Corp. v.
Cartier, Inc., 486 U.S. 281, 294 (1988)
(discussing whether an agency’s
regulatory provision is severable). The
Departments disagree that this
severability analysis is impacted by the
interrelatedness of either the provisions
of this rule or the affected parts more
generally. Indeed, it is reasonable for
agencies, when practical, to make
multiple related changes in a single
rulemaking in order to best inform the
public and facilitate notice and
comment.
III. Regulatory Requirements
A. 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).
B. Regulatory Flexibility Act
The Departments have reviewed this
regulation in accordance with the
Regulatory Flexibility Act, see 5 U.S.C.
601 et seq., and, as explained more fully
above, have determined that this rule
will not have a significant economic
impact on a substantial number of small
entities, see 5 U.S.C. 605(b). This
regulation affects only individual aliens
and the Federal government.
Individuals do not constitute small
entities under the Regulatory Flexibility
Act. See 5 U.S.C. 601(6).
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.
D. Congressional Review Act
The Office of Information and
Regulatory Affairs has determined that
this final rule is not a major rule as
defined by section 804 of the
Congressional Review Act. This rule
will not result in an annual effect on the
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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 foreignbased enterprises in domestic and
export markets. See 5 U.S.C. 804(2).
E. Executive Orders 12866, 13563, and
13771
This final rule is considered by the
Departments to be a ‘‘significant
regulatory action’’ under section 3(f)(4)
of Executive Order 12866 because it
raises novel legal or policy issues.
Accordingly, the regulation has been
submitted to the Office of Management
and Budget (‘‘OMB’’) for review.
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.
The final rule would change or
provide additional clarity for
adjudicators across many issues
commonly raised by asylum
applications and would potentially
streamline the overall adjudicatory
process for asylum applications.
Although the regulation will improve
the clarity of asylum law and help
streamline the credible fear review
process, the regulation does not change
the nature of the role of an immigration
judge or an asylum officer during
proceedings for consideration of
credible fear claims or asylum
applications. Notably, immigration
judges will retain their existing
authority to review de novo the
determinations made by asylum officers
in a credible fear proceeding, and will
continue to control immigration court
proceedings. In credible fear
proceedings, asylum officers will
continue to evaluate the merits of claims
for asylum, withholding of removal, and
CAT protection for possible referral to
an immigration judge. Although this
rule expands the bases on which an
asylum officer may determine that a
claim does not merit referral (and, as a
consequence, make a negative fear
determination), the alien will still be
able to seek review of that negative fear
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determination before the immigration
judge.
Immigration judges and asylum
officers are already trained to consider
all relevant legal issues in assessing a
credible fear claim or asylum
application, and the final rule does not
implement any changes that would
make adjudications more challenging
than those that are already conducted.
For example, immigration judges
already consider issues of persecution,
nexus, particular social group,
frivolousness, firm resettlement, and
discretion in assessing the merit of an
asylum application, and the provision of
clearer standards for considering those
issues in this rule does not add any
operational burden or increase the level
of operational analysis required for
adjudication. Accordingly, the
Departments do not expect the changes
to increase the adjudication time for
immigration court proceedings
involving asylum applications or for
reviews of negative fear determinations.
Depending on the manner in which
DHS exercises its prosecutorial
discretion for aliens potentially subject
to expedited removal, the facts and
circumstances of each individual alien’s
situation, DHS’s interpretation or the
relevant regulations, and application of
those regulations by individual
adjudicators, the changes may decrease
the number of cases of aliens subject to
expedited removal that result in a full
hearing on an application for asylum. In
all cases, however, an alien will retain
the opportunity to request immigration
judge review of DHS’s initial fear
determination.
The Departments are implementing
changes that may affect any alien
subject to expedited removal who makes
a fear claim and any alien who applies
for asylum, statutory withholding of
removal, or protection under the CAT
regulations. The Departments note that
these changes are likely to result in
fewer asylum grants annually due to
clarifications regarding the significance
of discretionary considerations and
changes to the definition of ‘‘firm
resettlement.’’ 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. As of September 30, 2020,
EOIR had 589,276 cases pending with
an asylum application. EOIR, Workload
and Adjudication Statistics: Total
Asylum Applications (Oct. 13, 2020),
https://www.justice.gov/eoir/page/file/
1106366/download. In FY 2019, at the
immigration court level, EOIR granted
18,816 asylum applications and denied
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45,285 asylum applications. See 85 FR
at 36289. An additional 27,112 asylum
applications were abandoned,
withdrawn, or otherwise not
adjudicated. Id. As of January 1, 2020,
USCIS had 338,931 applications for
asylum and for withholding of removal
pending. Id. at 36289 & n.44. In FY
2019, USCIS received 96,861 asylum
applications, and approved 19,945 such
applications. Id. at 36289 & n.45.
The Departments expect that the
aliens most likely to be impacted by this
rule’s provisions are those who are
already unlikely to receive a grant of
asylum under existing law. Assuming
DHS places those aliens into expedited
removal proceedings, the Departments
have concluded that it will be more
likely that they would receive a more
prompt adjudication of their claims for
asylum or withholding of removal than
they would under the existing
regulations. Depending on the
individual circumstances of each case,
this rule would mean that such aliens
would likely not remain in the United
States—for years, potentially—pending
resolution of their claims.
An alien who is ineligible for asylum
may still be eligible to apply for the
protection of withholding of removal
under section 241(b)(3) of the Act, 8
U.S.C. 1231(b)(3), or withholding of
removal under regulations issued
pursuant to the legislation
implementing U.S. obligations under
Article 3 of the CAT. See INA 241(b)(3),
8 U.S.C. 1231(b)(3); 8 CFR 208.16,
208.17 through 208.18, 1208.16, and
1208.17 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).
To the extent there are any direct
impacts of this rule, they would almost
exclusively fall on that population.
Further, 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.
Overall, the Departments assess that
operational efficiencies will likely result
from these changes, which could, inter
alia, reduce the number of meritless
claims before the immigration courts,
provide the Departments with the
ability to more promptly grant relief or
protection to qualifying aliens, and
ensure that those who do not qualify for
relief or protection are removed more
efficiently than they are under current
rules.
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F. Executive Order 12988: Criminal
Justice Reform
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, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, 44 U.S.C 3501–3512, agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule. The
changes made in this final rule required
DHS to revise USCIS Form I–589,
Application for Asylum and for
Withholding of Removal, OMB Control
Number 1615–0067. DOJ and DHS
invited public comments on the impact
to the proposed collection of
information for 60 days. See 85 FR at
36290.
DOJ and DHS received multiple
comments on the information collection
impacts of the proposed rule.
Commenters expressed concern that the
proposed revisions significantly
increase the time and cost burdens for
aliens seeking protection from
persecution and torture, as well as
adding to the burden of immigration
lawyers, asylum officers, advocacy
organizations, and immigration judges.
DHS and DOJ have summarized all of
the comments related to information
collection and have provided responses
in a document titled ‘‘Form I–589 Public
Comments and Response Matrix,’’
which is posted in the rulemaking
docket EOIR–2020–0003 at https://
www.regulations.gov/. As a result of the
public comments, DHS has increased
the burden estimate for the Form I–589
and has updated the supporting
statement submitted to OMB
accordingly. The supporting statement
can be found at https://
www.reginfo.gov/. The updated abstract
is as follows:
USCIS Form I–589
Overview of Information Collection
(1) Type of Information Collection:
Revision of a Currently Approved
Collection.
(2) Title of the Form/Collection:
Application for Asylum and for
Withholding of Removal.
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(3) Agency form number, if any, and
the applicable component of the DHS
sponsoring the collection: I–589; USCIS.
(4) Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Individuals or
households. Form I–589 is necessary to
determine whether an alien applying for
asylum or withholding of removal in the
United States is classified as a refugee
and is eligible to remain in the United
States.
(5) An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection I–589 is approximately
114,000, and the estimated hourly
burden per response is 18.5 93 hours.
The estimated number of respondents
providing biometrics is 110,000, and the
estimated hourly burden per response is
1.17 hours.
(6) An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
burden associated with this collection of
information in hours is 2,237,700.
(7) An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is
$70,406,400.94
H. 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.
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8 CFR Part 235
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
93 This estimate is higher than the estimate
provided in the NPRM because USCIS reevaluated
its projections and determined that the hourly
burden per response was likely to be higher than
USCIS had initially estimated, which also increased
the total estimated public burden (in hours).
94 This estimate is higher than the estimate
provided in the NPRM because USCIS reevaluated
its projections in response to public comments
suggesting that the monetary cost was likely to be
higher than USCIS had initially estimated.
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8 CFR Part 1003
Administrative practice and
procedure, Aliens, Immigration, Legal
services, Organization and functions
(Government agencies).
8 CFR Part 1208
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
8 CFR Part 1235
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
8 CFR Part 1244
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
DEPARTMENT OF HOMELAND
SECURITY
Accordingly, for the reasons set forth
in the preamble, 8 CFR parts 208 and
235 are amended as follows:
PART 208—PROCEDURES FOR
ASYLUM AND WITHHOLDING OF
REMOVAL
1. The authority citation for part 208
continues to read as follows:
■
Authority: 8 U.S.C. 1101, 1103, 1158, 1226,
1252, 1282; Title VII of Public Law 110–229;
8 CFR part 2.
2. Amend § 208.1 by adding
paragraphs (c) through (g) to read as
follows:
■
§ 208.1
General.
*
*
*
*
*
(c) Particular social group. For
purposes of adjudicating an application
for asylum under section 208 of the Act
or an application for withholding of
removal under section 241(b)(3) of the
Act, a particular social group is one that
is based on an immutable or
fundamental characteristic, is defined
with particularity, and is recognized as
socially distinct in the society at
question. Such a particular social group
cannot be defined exclusively by the
alleged persecutory acts or harms and
must also have existed independently of
the alleged persecutory acts or harms
that form the basis of the claim. The
Secretary, in general, will not favorably
adjudicate claims of aliens who claim a
fear of persecution on account of
membership in a particular social group
consisting of or defined by the following
circumstances: Past or present criminal
activity or association (including gang
membership); presence in a country
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with generalized violence or a high
crime rate; being the subject of a
recruitment effort by criminal, terrorist,
or persecutory groups; the targeting of
the applicant for criminal activity for
financial gain based on perceptions of
wealth or affluence; interpersonal
disputes of which governmental
authorities were unaware or
uninvolved; private criminal acts of
which governmental authorities were
unaware or uninvolved; past or present
terrorist activity or association; past or
present persecutory activity or
association; or status as an alien
returning from the United States. This
list is nonexhaustive, and the substance
of the alleged particular social group,
rather than the precise form of its
delineation, shall be considered in
determining whether the group falls
within one of the categories on the list.
No alien shall be found to be a refugee
or have it decided that the alien’s life or
freedom would be threatened based on
membership in a particular social group
in any case unless that person
articulates on the record, or provides a
basis on the record for determining, the
definition and boundaries of the alleged
particular social group. A failure to
define, or provide a basis for defining,
a formulation of a particular social
group before an immigration judge shall
waive any such claim for all purposes
under the Act, including on appeal. Any
waived claim on this basis shall not
serve as the basis for any motion to
reopen or reconsider for any reason,
including a claim of ineffective
assistance of counsel unless the alien
complies with the procedural
requirements for such a motion and
demonstrates that counsel’s failure to
define, or provide a basis for defining,
a formulation of a particular social
group constituted egregious conduct.
(d) Political opinion. For purposes of
adjudicating an application for asylum
under section 208 of the Act or an
application for withholding of removal
under section 241(b)(3) of the Act, a
political opinion is one expressed by or
imputed to an applicant in which the
applicant possesses an ideal or
conviction in support of the furtherance
of a discrete cause related to political
control of a State or a unit thereof. The
Secretary, in general, will not favorably
adjudicate claims of aliens who claim a
fear of persecution on account of a
political opinion defined solely by
generalized disapproval of,
disagreement with, or opposition to
criminal, terrorist, gang, guerilla, or
other non-state organizations absent
expressive behavior in furtherance of a
cause against such organizations related
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to efforts by the State to control such
organizations or behavior that is
antithetical to or otherwise opposes the
ruling legal entity of the State or a legal
sub-unit of the State. A person who has
been forced to abort a pregnancy or to
undergo involuntary sterilization, or
who has been persecuted for failure or
refusal to undergo such a procedure or
for other resistance to a coercive
population control program, shall be
deemed to have been persecuted on
account of political opinion, and a
person who has a well-founded fear that
he or she will be forced to undergo such
a procedure or subject to persecution for
such failure, refusal, or resistance shall
be deemed to have a well-founded fear
of persecution on account of political
opinion.
(e) Persecution. For purposes of
screening or adjudicating an application
for asylum under section 208 of the Act
or an application for withholding of
removal under section 241(b)(3) of the
Act, persecution requires an intent to
target a belief or characteristic, a severe
level of harm, and the infliction of a
severe level of harm by the government
of a country or by persons or an
organization that the government was
unable or unwilling to control. For
purposes of evaluating the severity of
the level of harm, persecution is an
extreme concept involving a severe level
of harm that includes actions so severe
that they constitute an exigent threat.
Persecution does not encompass the
generalized harm that arises out of civil,
criminal, or military strife in a country,
nor does it encompass all treatment that
the United States regards as unfair,
offensive, unjust, or even unlawful or
unconstitutional. It does not include
intermittent harassment, including brief
detentions; threats with no actual effort
to carry out the threats, except that
particularized threats of severe harm of
an immediate and menacing nature
made by an identified entity may
constitute persecution; or, non-severe
economic harm or property damage,
though this list is nonexhaustive. The
existence of laws or government policies
that are unenforced or infrequently
enforced do not, by themselves,
constitute persecution, unless there is
credible evidence that those laws or
policies have been or would be applied
to an applicant personally.
(f) Nexus. For purposes of
adjudicating an application for asylum
under section 208 of the Act or an
application or withholding of removal
under section 241(b)(3) of the Act, the
Secretary, in general, will not favorably
adjudicate the claims of aliens who
claim persecution based on the
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following list of nonexhaustive
circumstances:
(1) Interpersonal animus or
retribution;
(2) Interpersonal animus in which the
alleged persecutor has not targeted, or
manifested an animus against, other
members of an alleged particular social
group in addition to the member who
has raised the claim at issue;
(3) Generalized disapproval of,
disagreement with, or opposition to
criminal, terrorist, gang, guerilla, or
other non-state organizations absent
expressive behavior in furtherance of a
discrete cause against such
organizations related to control of a
State or expressive behavior that is
antithetical to the State or a legal unit
of the State;
(4) Resistance to recruitment or
coercion by guerilla, criminal, gang,
terrorist or other non-state
organizations;
(5) The targeting of the applicant for
criminal activity for financial gain based
on wealth or affluence or perceptions of
wealth or affluence;
(6) Criminal activity;
(7) Perceived, past or present, gang
affiliation; or,
(8) Gender.
(g) Evidence based on stereotypes. For
purposes of adjudicating an application
for asylum under section 208 of the Act
or an application for withholding of
removal under section 241(b)(3) of the
Act, evidence offered in support of such
an application which promotes cultural
stereotypes about a country, its
inhabitants, or an alleged persecutor,
including stereotypes based on race,
religion, nationality, or gender, shall not
be admissible in adjudicating that
application, provided that nothing in
this paragraph shall be construed as
prohibiting the submission of evidence
that an alleged persecutor holds
stereotypical views of the applicant.
3. Amend § 208.2 by adding paragraph
(c)(1)(ix) to read as follows:
■
§ 208.2
Jurisdiction.
*
*
*
*
*
(c) * * *
(1) * * *
(ix) An alien found to have a credible
fear of persecution, reasonable
possibility of persecution, or reasonable
possibility of torture in accordance with
§§ 208.30, 1003.42, or 1208.30.
*
*
*
*
*
4. Amend § 208.5 by revising the first
sentence of paragraph (a) to read as
follows:
■
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§ 208.5 Special duties toward aliens in
custody of DHS.
(a) General. When an alien in the
custody of DHS requests asylum or
withholding of removal, or expresses a
fear of persecution or harm upon return
to his or her country of origin or to
agents thereof, DHS shall make available
the appropriate application forms and
shall provide the applicant with the
information required by section
208(d)(4) of the Act, including in the
case of an alien who is in custody with
a positive credible fear or reasonable
fear determination under 8 CFR 208.30
or 208.31, and except in the case of an
alien who is in custody pending a
credible fear determination under 8 CFR
208.30 or a reasonable fear
determination pursuant to 8 CFR
208.31. * * *
*
*
*
*
*
■ 5. Amend § 208.6 by revising
paragraphs (a) and (b) and adding
paragraphs (d) and (e) to read as follows:
§ 208.6
Disclosure to third parties.
(a) Information contained in or
pertaining to any application for refugee
admission, asylum, withholding of
removal under section 241(b)(3) of the
Act, or protection under regulations
issued pursuant to the Convention
Against Torture’s implementing
legislation, records pertaining to any
credible fear determination conducted
pursuant to § 208.30, and records
pertaining to any reasonable fear
determination conducted pursuant to
§ 208.31, shall not be disclosed without
the written consent of the applicant,
except as permitted by this section or at
the discretion of the Secretary.
(b) The confidentiality of other
records kept by DHS and the Executive
Office for Immigration Review that
indicate that a specific alien has applied
for refugee admission, asylum,
withholding of removal under section
241(b)(3) of the Act, or protection under
regulations issued pursuant to the
Convention Against Torture’s
implementing legislation, or has
received a credible fear or reasonable
fear interview, or received a credible
fear or reasonable fear review shall also
be protected from disclosure, except as
permitted in this section. DHS will
coordinate with the Department of State
to ensure that the confidentiality of
those records is maintained if they are
transmitted to Department of State
offices in other countries.
*
*
*
*
*
(d)(1) Any information contained in
an application for refugee admission,
asylum, withholding of removal under
section 241(b)(3) of the Act, or
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protection under regulations issued
pursuant to the Convention Against
Torture’s implementing legislation, any
relevant and applicable information
supporting that application, any
information regarding an alien who has
filed such an application, and any
relevant and applicable information
regarding an alien who has been the
subject of a reasonable fear or credible
fear determination may be disclosed:
(i) As part of an investigation or
adjudication of the merits of that
application or of any other application
under the immigration laws,
(ii) As part of any State or Federal
criminal investigation, proceeding, or
prosecution;
(iii) Pursuant to any State or Federal
mandatory reporting requirement;
(iv) To deter, prevent, or ameliorate
the effects of child abuse;
(v) As part of any proceeding arising
under the immigration laws, including
proceedings arising under the Act; and
(vi) As part of the Government’s
defense of any legal action relating to
the alien’s immigration or custody
status including petitions for review
filed in accordance with 8 U.S.C. 1252.
(2) If information may be disclosed
under paragraph (d)(1) of this section,
the disclosure provisions in paragraphs
(a), (b), and (c) of this section shall not
apply.
(e) Nothing in this section shall be
construed as prohibiting the disclosure
of information contained in an
application for refugee admission,
asylum, withholding of removal under
section 241(b)(3)(B) of the Act, or
protection under regulations issued
pursuant to the Convention Against
Torture’s implementing legislation,
information supporting that application,
information regarding an alien who has
filed such an application, or information
regarding an alien who has been the
subject of a reasonable fear or credible
fear determination:
(1) Among employees and officers of
the Department of Justice, the
Department of Homeland Security, the
Department of State, the Department of
Health and Human Services, the
Department of Labor, or a U.S. national
security agency having a need to
examine the information for an official
purpose; or
(2) Where a United States Government
employee or contractor has a good faith
and reasonable belief that disclosure is
necessary to prevent the commission of
a crime, the furtherance of an ongoing
crime, or to ameliorate the effects of a
crime.
■ 6. Amend § 208.13 by revising
paragraphs (b)(3) introductory text and
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(b)(3)(ii) and adding paragraphs
(b)(3)(iii) and (iv) and (d) to read as
follows:
§ 208.13
Establishing asylum eligibility.
*
*
*
*
*
(b) * * *
(3) Reasonableness of internal
relocation. For purposes of
determinations under paragraphs
(b)(1)(i) and (ii) and (b)(2) of this
section, adjudicators should consider
the totality of the relevant
circumstances regarding an applicant’s
prospects for relocation, including the
size of the country of nationality or last
habitual residence, the geographic locus
of the alleged persecution, the size,
reach, or numerosity of the alleged
persecutor, and the applicant’s
demonstrated ability to relocate to the
United States in order to apply for
asylum.
*
*
*
*
*
(ii) In cases in which the persecutor
is a government or is governmentsponsored, it shall be presumed that
internal relocation would not be
reasonable, unless DHS establishes by a
preponderance of the evidence that,
under all the circumstances, it would be
reasonable for the applicant to relocate.
(iii) Regardless of whether an
applicant has established persecution in
the past, in cases in which the
persecutor is not the government or a
government-sponsored actor, or
otherwise is a private actor, there shall
be a presumption that internal
relocation would be reasonable unless
the applicant establishes, by a
preponderance of the evidence, that it
would be unreasonable to relocate.
(iv) For purposes of determinations
under paragraphs (b)(3)(ii) and (iii) of
this section, persecutors who are private
actors—including persecutors who are
gang members, officials acting outside
their official capacity, family members
who are not themselves government
officials, or neighbors who are not
themselves government officials—shall
not be considered to be persecutors who
are the government or governmentsponsored absent evidence that the
government sponsored the persecution.
*
*
*
*
*
(d) Discretion. Factors that fall short
of grounds of mandatory denial of an
asylum application may constitute
discretionary considerations.
(1) The following are significant
adverse discretionary factors that a
decision-maker shall consider, if
applicable, in determining whether an
alien merits a grant of asylum in the
exercise of discretion:
(i) An alien’s unlawful entry or
unlawful attempted entry into the
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United States unless such entry or
attempted entry was made in immediate
flight from persecution in a contiguous
country or unless such entry or
attempted entry was made by an alien
under the age of 18 at the time the entry
or attempted entry was made;
(ii) The failure of an alien to apply for
protection from persecution or torture in
at least one country outside the alien’s
country of citizenship, nationality, or
last lawful habitual residence through
which the alien transited before entering
the United States unless:
(A) The alien received a final
judgment denying the alien protection
in such country;
(B) The alien demonstrates that he or
she satisfies the definition of ‘‘victim of
a severe form of trafficking in persons’’
provided in 8 CFR 214.11; or
(C) Such country or all such countries
were, at the time of the transit, not
parties to the 1951 Convention relating
to the Status of Refugees, the 1967
Protocol relating to the Status of
Refugees, or the Convention Against
Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment;
and
(iii) An alien’s use of fraudulent
documents to enter the United States,
unless the alien arrived in the United
States by air, sea, or land directly from
the applicant’s home country without
transiting through any other country.
(2)(i) The Secretary, except as
provided in paragraph (d)(2)(ii) of this
section, will not favorably exercise
discretion under section 208 of the Act
for an alien who:
(A) Immediately prior to his arrival in
the United States or en route to the
United States from the alien’s country of
citizenship, nationality, or last lawful
habitual residence, spent more than 14
days in any one country unless:
(1) The alien demonstrates that he or
she applied for protection from
persecution or torture in such country
and the alien received a final judgment
denying the alien protection in such
country;
(2) The alien demonstrates that he or
she satisfies the definition of ‘‘victim of
a severe form of trafficking in persons’’
provided in 8 CFR 214.11; or
(3) Such country was, at the time of
the transit, not a party to the 1951
Convention relating to the Status of
Refugees, the 1967 Protocol relating to
the Status of Refugees, or the
Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment;
(B) Transits through more than one
country between his country of
citizenship, nationality, or last habitual
residence and the United States unless:
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(1) The alien demonstrates that he or
she applied for protection from
persecution or torture in at least one
such country and received a final
judgment denying the alien protection
in that country;
(2) The alien demonstrates that he or
she satisfies the definition of ‘‘victim of
a severe form of trafficking in persons’’
provided in 8 CFR 214.11; or
(3) All such countries were, at the
time of the transit, not parties to the
1951 Convention relating to the Status
of Refugees, the 1967 Protocol relating
to the Status of Refugees, or the
Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment;
(C) Would otherwise be subject to
§ 208.13(c) but for the reversal, vacatur,
expungement, or modification of a
conviction or sentence, unless the alien
was found not guilty;
(D) Accrued more than one year of
unlawful presence in the United States,
as defined in sections 212(a)(9)(B)(ii)
and (iii) of the Act, prior to filing an
application for asylum;
(E) At the time the asylum application
is filed with DHS has:
(1) Failed to timely file (or timely file
a request for an extension of time to file)
any required Federal, State, or local
income tax returns;
(2) Failed to satisfy any outstanding
Federal, State, or local tax obligations;
or
(3) Has income that would result in
tax liability under section 1 of the
Internal Revenue Code of 1986 and that
was not reported to the Internal
Revenue Service;
(F) Has had two or more prior asylum
applications denied for any reason;
(G) Has withdrawn a prior asylum
application with prejudice or been
found to have abandoned a prior asylum
application;
(H) Failed to attend an interview
regarding his asylum application with
DHS, unless the alien shows by a
preponderance of the evidence that:
(1) Exceptional circumstances
prevented the alien from attending the
interview; or
(2) The interview notice was not
mailed to the last address provided by
the alien or his or her representative and
neither the alien nor the alien’s
representative received notice of the
interview; or
(I) Was subject to a final order of
removal, deportation, or exclusion and
did not file a motion to reopen to seek
asylum based on changed country
conditions within one year of those
changes in country conditions.
(ii) Where one or more of the adverse
discretionary factors set forth in
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paragraph (d)(2)(i) of this section are
present, the Secretary, in extraordinary
circumstances, such as those involving
national security or foreign policy
considerations, or cases in which an
alien, by clear and convincing evidence,
demonstrates that the denial or referral
(which may result in the denial by an
immigration judge) of the application
for asylum would result in exceptional
and extremely unusual hardship to the
alien, may favorably exercise discretion
under section 208 of the Act,
notwithstanding the applicability of
paragraph (d)(2)(i). Depending on the
gravity of the circumstances underlying
the application of paragraph (d)(2)(i), a
showing of extraordinary circumstances
might still be insufficient to warrant a
favorable exercise of discretion under
section 208 of the Act.
■ 7. Revise § 208.15 to read as follows:
§ 208.15
Definition of ‘‘firm resettlement.’’
(a) An alien is considered to be firmly
resettled if, after the events giving rise
to the alien’s asylum claim:
(1) The alien resided in a country
through which the alien transited prior
to arriving in or entering the United
States and—
(i) Received or was eligible for any
permanent legal immigration status in
that country;
(ii) Resided in such a country with
any non-permanent but indefinitely
renewable legal immigration status
(including asylee, refugee, or similar
status but excluding status such as of a
tourist); or
(iii) Resided in such a country and
could have applied for and obtained any
non-permanent but indefinitely
renewable legal immigration status in
that country;
(2) The alien physically resided
voluntarily, and without continuing to
suffer persecution or torture, in any one
country for one year or more after
departing his country of nationality or
last habitual residence and prior to
arrival in or entry into the United States,
provided that time spent in Mexico by
an alien who is not a native or citizen
of Mexico solely as a direct result of
being returned to Mexico pursuant to
section 235(b)(2)(C) of the Act or of
being subject to metering would not be
counted for purposes of this paragraph;
or
(3)(i) The alien is a citizen of a
country other than the one where the
alien alleges a fear of persecution and
the alien was present in that country
after departing his country of nationality
or last habitual residence and prior to
arrival in or entry into the United States;
or
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(ii) The alien was a citizen of a
country other than the one where the
alien alleges a fear of persecution, the
alien was present in that country after
departing his country of nationality or
last habitual residence and prior to
arrival in or entry into the United States,
and the alien renounced that citizenship
after arriving in the United States.
(b) The provisions of 8 CFR 1240.8(d)
shall apply when the evidence of record
indicates that the firm resettlement bar
may apply. In such cases, the alien shall
bear the burden of proving the bar does
not apply. Either DHS or the
immigration judge may raise the issue of
the application of the firm resettlement
bar based on the evidence of record. The
firm resettlement of an alien’s parent(s)
shall be imputed to the alien if the
resettlement occurred before the alien
turned 18 and the alien resided with the
alien’s parents at the time of the firm
resettlement unless the alien establishes
that he or she could not have derived
any permanent legal immigration status
or any non-permanent but indefinitely
renewable legal immigration status
(including asylee, refugee, or similar
status but excluding status such as of a
tourist) from the alien’s parent.
■ 8. Amend § 208.16 by revising
paragraphs (b)(3) introductory text and
(b)(3)(ii) and adding paragraphs
(b)(3)(iii) and (iv) to read as follows:
§ 208.16 Withholding of removal under
section 241(b)(3)(B) of the Act and
withholding of removal under the
Convention Against Torture.
*
*
*
*
*
(b)(3) Reasonableness of internal
relocation. For purposes of
determinations under paragraphs (b)(1)
and (2) of this section, adjudicators
should consider the totality of the
relevant circumstances regarding an
applicant’s prospects for relocation,
including the size of the country of
nationality or last habitual residence,
the geographic locus of the alleged
persecution, the size, reach, or
numerosity of the alleged persecutor,
and the applicant’s demonstrated ability
to relocate to the United States in order
to apply for withholding of removal.
*
*
*
*
*
(ii) In cases in which the persecutor
is a government or is governmentsponsored, it shall be presumed that
internal relocation would not be
reasonable, unless DHS establishes by a
preponderance of the evidence that,
under the totality of the circumstances,
it would be reasonable for the applicant
to relocate.
(iii) Regardless of whether an
applicant has established persecution in
the past, in cases in which the
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persecutor is not the government or a
government-sponsored actor, or
otherwise is a private actor, there shall
be a presumption that internal
relocation would be reasonable unless
the applicant establishes, by a
preponderance of the evidence, that it
would be unreasonable to relocate.
(iv) For purposes of determinations
under paragraphs (b)(3)(ii) and (iii) of
this section, persecutors who are private
actors, including but not limited to
persecutors who are gang members,
public officials who are not acting under
color of law, or family members who are
not themselves government officials or
neighbors who are not themselves
government officials, shall not be
considered to be persecutors who are
the government or governmentsponsored absent evidence that the
government sponsored the persecution.
*
*
*
*
*
■ 9. Amend § 208.18 by revising
paragraphs (a)(1) and (7) to read as
follows:
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§ 208.18 Implementation of the Convention
Against Torture.
(a) * * *
(1) Torture is defined as any act by
which severe pain or suffering, whether
physical or mental, is intentionally
inflicted on a person for such purposes
as obtaining from him or her or a third
person information or a confession,
punishing him or her for an act he or
she or a third person has committed or
is suspected of having committed, or
intimidating or coercing him or her or
a third person, or for any reason based
on discrimination of any kind, when
such pain or suffering is inflicted by or
at the instigation of or with the consent
or acquiescence of a public official
acting in an official capacity or other
person acting in an official capacity.
Pain or suffering inflicted by a public
official who is not acting under color of
law shall not constitute pain or suffering
inflicted by or at the instigation of or
with the consent or acquiescence of a
public official acting in an official
capacity or other person acting in an
official capacity, although a different
public official acting in an official
capacity or other person acting in an
official capacity could instigate, consent
to, or acquiesce in the pain or suffering
inflicted by the public official who is
not acting under color of law.
*
*
*
*
*
(7) Acquiescence of a public official
requires that the public official, prior to
the activity constituting torture, have
awareness of such activity and
thereafter breach his or her legal
responsibility to intervene to prevent
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such activity. Such awareness requires a
finding of either actual knowledge or
willful blindness. Willful blindness
means that the public official acting in
an official capacity or other person
acting in an official capacity was aware
of a high probability of activity
constituting torture and deliberately
avoided learning the truth; it is not
enough that such public official acting
in an official capacity or other person
acting in an official capacity was
mistaken, recklessly disregarded the
truth, or negligently failed to inquire. In
order for a public official to breach his
or her legal responsibility to intervene
to prevent activity constituting torture,
the official must have been charged with
preventing the activity as part of his or
her duties and have failed to intervene.
No person will be deemed to have
breached a legal responsibility to
intervene if such person is unable to
intervene, or if the person intervenes
but is unable to prevent the activity that
constitutes torture.
*
*
*
*
*
■ 10. Revise § 208.20 to read as follows:
§ 208.20 Determining if an asylum
application is frivolous.
(a) For applications filed on or after
April 1, 1997, and before January 11,
2021, an applicant is subject to the
provisions of section 208(d)(6) of the
Act only if the alien received the notice
required by section 208(d)(4)(A) of the
Act and a final order by an immigration
judge or the Board of Immigration
Appeals specifically finds that the alien
knowingly filed a frivolous asylum
application. An application is frivolous
if:
(1) Any of the material elements in
the asylum application is deliberately
fabricated, and the immigration judge or
the Board is satisfied that the applicant,
during the course of the proceedings,
has had sufficient opportunity to
account for any discrepancies or
implausible aspects of the claim.
(2) Paragraphs (b) through (f) of this
section shall only apply to applications
filed on or after January 11, 2021.
(b) For applications filed on or after
January 11, 2021, an asylum officer may
determine that the applicant knowingly
filed a frivolous asylum application and
may refer the applicant to an
immigration judge on that basis, so long
as the applicant has received the notice
required by section 208(d)(4)(A) of the
Act. For any application referred to an
immigration judge, an asylum officer’s
determination that an application is
frivolous will not render an applicant
permanently ineligible for immigration
benefits unless an immigration judge or
the Board makes a finding of
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80389
frivolousness as described in paragraph
1208.20(c).
(c) For applications filed on or after
January 11, 2021, an asylum application
is frivolous if it:
(1) Contains a fabricated material
element;
(2) Is premised upon false or
fabricated evidence unless the
application would have been granted
without the false or fabricated evidence;
(3) Is filed without regard to the
merits of the claim; or
(4) Is clearly foreclosed by applicable
law.
(d) If the alien has been provided the
warning required by section
208(d)(4)(A) of the Act, he or she need
not be given any additional or further
opportunity to account for any issues
with his or her claim prior to the entry
of a frivolousness finding.
(e) An asylum application may be
found frivolous even if it was untimely
filed.
(f) A withdrawn asylum application
may also be found frivolous unless:
(1) The alien wholly disclaims the
application and withdraws it with
prejudice;
(2) The alien is eligible for and agrees
to accept voluntary departure for a
period of no more than 30 days
pursuant to section 240B(a) of the Act;
(3) The alien withdraws any and all
other applications for relief or
protection with prejudice; and
(4) The alien waives his right to
appeal and any rights to file, for any
reason, a motion to reopen or
reconsider.
(g) For purposes of this section, a
finding that an alien knowingly filed a
frivolous asylum application shall not
preclude the alien from seeking
withholding of removal under section
241(b)(3) of the Act or protection under
the regulations issued pursuant to the
Convention Against Torture’s
implementing legislation.
■ 11. Add § 208.25 to read as follows:
§ 208.25
Severability.
The provisions of part 208 are
separate and severable from one
another. In the event that any provision
in part 208 is stayed, enjoined, not
implemented, or otherwise held invalid,
the remaining provisions shall
nevertheless be implemented as an
independent rule and continue in effect.
■ 12. Amend § 208.30 by:
■ a. Revising the section heading; and
■ b. Revising paragraphs (a), (b), (c), (d)
introductory text, (d)(1) and (2), (d)(5)
and (6), (e) introductory text, (e)(1)
through (5), (e)(6) introductory text,
(e)(6)(ii), (e)(6)(iii) introductory text,
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(e)(6)(iv), the first sentence of paragraph
(e)(7) introductory text, and paragraphs
(e)(7)(ii), (f), and (g).
The revisions read as follows:
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§ 208.30 Credible fear of persecution,
reasonable possibility of persecution, and
reasonable possibility of torture
determinations involving stowaways and
applicants for admission who are found
inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act, whose
entry is limited or suspended under section
212(f) or 215(a)(1) of the Act, or who failed
to apply for protection from persecution in
a third country where potential relief is
available while en route to the United
States.
(a) Jurisdiction. The provisions of this
subpart B apply to aliens subject to
sections 235(a)(2) and 235(b)(1) of the
Act. Pursuant to section 235(b)(1)(B) of
the Act, DHS has exclusive jurisdiction
to make the determinations described in
this subpart B. Except as otherwise
provided in this subpart B, paragraphs
(b) through (g) of this section are the
exclusive procedures applicable to
stowaways and applicants for admission
who are found inadmissible pursuant to
section 212(a)(6)(C) or 212(a)(7) of the
Act and who receive fear interviews,
determinations, and reviews under
section 235(b)(1)(B) of the Act. Prior to
January 1, 2030, an alien physically
present in or arriving in the
Commonwealth of the Northern Mariana
Islands is ineligible to apply for asylum
and may only establish eligibility for
withholding of removal pursuant to
section 241(b)(3) of the Act or
withholding or deferral of removal
under the regulations issued pursuant to
the Convention Against Torture’s
implementing legislation.
(b) Process and Authority. If an alien
subject to section 235(a)(2) or 235(b)(1)
of the Act indicates an intention to
apply for asylum, or expresses a fear of
persecution or torture, or a fear of return
to his or her country, the inspecting
officer shall not proceed further with
removal of the alien until the alien has
been referred for an interview by an
asylum officer in accordance with this
section. An asylum officer shall then
screen the alien for a credible fear of
persecution, and as necessary, a
reasonable possibility of persecution
and reasonable possibility of torture. An
asylum officer, as defined in section
235(b)(1)(E) of the Act, has the
authorities described in 8 CFR 208.9(c)
and must conduct an evaluation and
make a determination consistent with
this section.
(c) Treatment of dependents. A
spouse or child of an alien may be
included in that alien’s fear evaluation
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and determination, if such spouse or
child:
(1) Arrived in the United States
concurrently with the principal alien;
and
(2) Desires to be included in the
principal alien’s determination.
However, any alien may have his or her
evaluation and determination made
separately, if he or she expresses such
a desire.
(d) Interview. The asylum officer will
conduct the interview in a
nonadversarial manner, separate and
apart from the general public. The
purpose of the interview shall be to
elicit all relevant and useful information
bearing on whether the alien can
establish a credible fear of persecution,
reasonable possibility of persecution, or
reasonable possibility of torture. The
asylum officer shall conduct the
interview as follows:
(1) If the officer conducting the
interview determines that the alien is
unable to participate effectively in the
interview because of illness, fatigue, or
other impediments, the officer may
reschedule the interview.
(2) At the time of the interview, the
asylum officer shall verify that the alien
has received in writing the relevant
information regarding the fear
determination process. The officer shall
also determine that the alien has an
understanding of the fear determination
process.
*
*
*
*
*
(5) If the alien is unable to proceed
effectively in English, and if the asylum
officer is unable to proceed competently
in a language the alien speaks and
understands, the asylum officer shall
arrange for the assistance of an
interpreter in conducting the interview.
The interpreter must be at least 18 years
of age and may not be the alien’s
attorney or representative of record, a
witness testifying on the alien’s behalf,
a representative or employee of the
alien’s country of nationality, or, if the
alien is stateless, the alien’s country of
last habitual residence.
(6) The asylum officer shall create a
summary of the material facts as stated
by the alien. At the conclusion of the
interview, the officer shall review the
summary with the alien and provide the
alien with an opportunity to correct any
errors therein.
(e) Procedures for determining
credible fear of persecution, reasonable
possibility of persecution, and
reasonable possibility of torture.
(1) An alien establishes a credible fear
of persecution if there is a significant
possibility the alien can establish
eligibility for asylum under section 208
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of the Act. ‘‘Significant possibility’’
means a substantial and realistic
possibility of succeeding. When making
such a determination, the asylum officer
shall take into account:
(i) The credibility of the statements
made by the alien in support of the
alien’s claim;
(ii) Such other facts as are known to
the officer, including whether the alien
could avoid any future harm by
relocating to another part of his or her
country, if under all the circumstances
it would be reasonable to expect the
alien to do so; and
(iii) The applicability of any bars to
being able to apply for asylum or to
eligibility for asylum set forth at section
208(a)(2)(B)–(C) and (b)(2) of the Act,
including any bars established by
regulation under section 208(b)(2)(C) of
the Act.
(2) An alien establishes a reasonable
possibility of persecution if there is a
reasonable possibility that the alien
would be persecuted on account of his
or her race, religion, nationality,
membership in a particular social group,
or political opinion in the country of
removal. When making such
determination, the officer will take into
account:
(i) The credibility of the statements
made by the alien in support of the
alien’s claim;
(ii) Such other facts as are known to
the officer, including whether the alien
could avoid a future threat to his or her
life or freedom by relocating to another
part of the proposed country of removal
and, under all circumstances, it would
be reasonable to expect the applicant to
do so; and
(iii) The applicability of any bars at
section 241(b)(3)(B) of the Act.
(3) An alien establishes a reasonable
possibility of torture if there is a
reasonable possibility that the alien
would be tortured in the country of
removal, consistent with the criteria in
8 CFR 208.16(c), 8 CFR 208.17, and 8
CFR 208.18. The alien must demonstrate
a reasonable possibility that he or she
will suffer severe pain or suffering in
the country of removal, and that the
feared harm would comport with the
other requirements of 8 CFR 208.18(a)(1)
through (8). When making such a
determination, the asylum officer shall
take into account:
(i) The credibility of the statements
made by alien in support of the alien’s
claim, and
(ii) Such other facts as are known to
the officer, including whether the alien
could relocate to a part of the country
of removal where he or she is not likely
to be tortured.
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(4) In all cases, the asylum officer will
create a written record of his or her
determination, including a summary of
the material facts as stated by the alien,
any additional facts relied on by the
officer, and the officer’s determination
of whether, in light of such facts, the
alien has established a credible fear of
persecution, reasonable possibility of
persecution, or reasonable possibility of
torture. In determining whether the
alien has a credible fear of persecution,
as defined in section 235(b)(1)(B)(v) of
the Act, or a reasonable possibility of
persecution or torture, the asylum
officer shall consider whether the
alien’s case presents novel or unique
issues that merit consideration in a full
hearing before an immigration judge.
(5)(i)(A) Except as provided in
paragraph (e)(5)(ii) or (iii) or paragraph
(e)(6) or (7) of this section, if an alien
would be able to establish a credible
fear of persecution but for the fact that
the alien is subject to one or more of the
mandatory bars to applying for asylum
or being eligible for asylum contained in
section 208(a)(2)(B)–(D) and (b)(2) of the
Act, including any bars established by
regulation under section 208(b)(2)(C) of
the Act, then the asylum officer will
enter a negative credible fear of
persecution determination with respect
to the alien’s eligibility for asylum.
(B) If an alien described in paragraph
(e)(5)(i)(A) of this section is able to
establish either a reasonable possibility
of persecution (including by
establishing that he or she is not subject
to one or more of the mandatory bars to
eligibility for withholding of removal
contained in section 241(b)(3)(B) of the
Act) or a reasonable possibility of
torture, then the asylum officer will
enter a positive reasonable possibility of
persecution or torture determination, as
applicable. The Department of
Homeland Security shall place the alien
in asylum-and-withholding-only
proceedings under 8 CFR 208.2(c)(1) for
full consideration of the alien’s claim
for withholding of removal under
section 241(b)(3) of the Act or
withholding or deferral of removal
under the regulations issued pursuant to
the implementing legislation for the
Convention Against Torture.
(C) If an alien described in paragraph
(e)(5)(i)(A) of this section fails to
establish either a reasonable possibility
of persecution (including by failing to
establish that he or she is not subject to
one or more of the mandatory bars to
eligibility for withholding of removal
contained in section 241(b)(3)(B) of the
Act) or a reasonable possibility of
torture, the asylum officer will provide
the alien with a written notice of
decision, which will be subject to
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immigration judge review consistent
with paragraph (g) of this section,
except that the immigration judge will
review the fear findings under the
reasonable possibility standard instead
of the credible fear of persecution
standard described in paragraph (g) of
this section and in 8 CFR 1208.30(g).
(ii) If the alien is found to be an alien
described in 8 CFR 208.13(c)(3), then
the asylum officer shall enter a negative
credible fear determination with respect
to the alien’s application for asylum.
The Department shall nonetheless place
the alien in asylum-and-withholdingonly proceedings under 8 CFR
208.2(c)(1) for full consideration of the
alien’s claim for withholding of removal
under section 241(b)(3) of the Act, or for
withholding or deferral of removal
under the regulations issued pursuant to
the implementing legislation for the
Convention Against Torture, if the alien
establishes, respectively, a reasonable
possibility of persecution or torture.
However, if an alien fails to establish,
during the interview with the asylum
officer, a reasonable possibility of either
persecution or torture, the asylum
officer will provide the alien with a
written notice of decision, which will be
subject to immigration judge review
consistent with paragraph (g) of this
section, except that the immigration
judge will review the fear of persecution
or torture findings under the reasonable
possibility standard instead of the
credible fear standard described in
paragraph (g) of this section and in 8
CFR 1208.30(g).
(iii) If the alien is found to be an alien
described in 8 CFR 208.13(c)(4), then
the asylum officer shall enter a negative
credible fear determination with respect
to the alien’s application for asylum.
The Department shall nonetheless place
the alien in asylum-and-withholdingonly proceedings under 8 CFR
208.2(c)(1) for full consideration of the
alien’s claim for withholding of removal
under section 241(b)(3) of the Act or
withholding of deferral of removal
under the regulations issued pursuant to
the implementing legislation for the
Convention Against Torture if the alien
establishes, respectively, a reasonable
possibility of persecution or torture.
However, if an alien fails to establish,
during the interview with the asylum
officer, a reasonable possibility of either
persecution or torture, the asylum
officer will provide the alien with a
written notice of decision, which will be
subject to immigration judge review
consistent with paragraph (g) of this
section, except that the immigration
judge will review the fear of persecution
or torture findings under the reasonable
possibility standard instead of the
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credible fear standard described in
paragraph (g) of this section and in 8
CFR 1208.30(g).
(6) Prior to any determination
concerning whether an alien arriving in
the United States at a U.S.-Canada land
border port-of-entry or in transit through
the U.S. during removal by Canada has
a credible fear of persecution,
reasonable possibility of persecution, or
reasonable possibility of torture, the
asylum officer shall conduct a threshold
screening interview to determine
whether such an alien is ineligible to
apply for asylum pursuant to section
208(a)(2)(A) of the Act and subject to
removal to Canada by operation of the
Agreement Between the Government of
the United States and the Government
of Canada For Cooperation in the
Examination of Refugee Status Claims
from Nationals of Third Countries
(‘‘Agreement’’). In conducting this
threshold screening interview, the
asylum officer shall apply all relevant
interview procedures outlined in
paragraph (d) of this section, provided,
however, that paragraph (d)(2) of this
section shall not apply to aliens
described in this paragraph (e)(6). The
asylum officer shall advise the alien of
the Agreement’s exceptions and
question the alien as to applicability of
any of these exceptions to the alien’s
case.
*
*
*
*
*
(ii) If the alien establishes by a
preponderance of the evidence that he
or she qualifies for an exception under
the terms of the Agreement, the asylum
officer shall make a written notation of
the basis of the exception, and then
proceed immediately to a determination
concerning whether the alien has a
credible fear of persecution, reasonable
possibility of persecution, or reasonable
possibility of torture under paragraph
(d) of this section.
(iii) An alien qualifies for an
exception to the Agreement if the alien
is not being removed from Canada in
transit through the United States and:
*
*
*
*
*
(iv) As used in paragraphs
(e)(6)(iii)(B), (C), and (D) of this section
only, ‘‘legal guardian’’ means a person
currently vested with legal custody of
such an alien or vested with legal
authority to act on the alien’s behalf,
provided that such an alien is both
unmarried and less than 18 years of age,
and provided further that any dispute
with respect to whether an individual is
a legal guardian will be resolved on the
basis of U.S. law.
(7) When an immigration officer has
made an initial determination that an
alien, other than an alien described in
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paragraph (e)(6) of this section and
regardless of whether the alien is
arriving at a port of entry, appears to be
subject to the terms of an agreement
authorized by section 208(a)(2)(A) of the
Act, and seeks the alien’s removal
consistent with that provision, prior to
any determination concerning whether
the alien has a credible fear of
persecution, reasonable possibility of
persecution, or a reasonable possibility
of torture, the asylum officer shall
conduct a threshold screening interview
to determine whether the alien is
ineligible to apply for asylum in the
United States and is subject to removal
to a country (‘‘receiving country’’) that
is a signatory to the applicable
agreement authorized by section
208(a)(2)(A) of the Act, other than the
U.S.-Canada Agreement effectuated in
2004. * * *
*
*
*
*
*
(ii) If the alien establishes by a
preponderance of the evidence that he
or she qualifies for an exception under
the terms of the applicable agreement,
or would more likely than not be
persecuted on account of his or her race,
religion, nationality, membership in a
particular social group, or tortured, in
the receiving country, the asylum officer
shall make a written notation to that
effect, and may then proceed to
determine whether any other agreement
is applicable to the alien under the
procedures set forth in this paragraph
(e)(7). If the alien establishes by a
preponderance of the evidence that he
or she qualifies for an exception under
the terms of each of the applicable
agreements, or would more likely than
not be persecuted on account of his or
her race, religion, nationality,
membership in a particular social group,
or tortured, in each of the prospective
receiving countries, the asylum officer
shall make a written notation to that
effect, and then proceed immediately to
a determination concerning whether the
alien has a credible fear of persecution,
reasonable possibility of persecution, or
a reasonable possibility of torture, under
paragraph (d) of this section.
*
*
*
*
*
(f) Procedures for a positive fear
determination. If, pursuant to paragraph
(e) of this section, an alien stowaway or
an alien subject to expedited removal
establishes either a credible fear of
persecution, reasonable possibility of
persecution, or a reasonable possibility
of torture:
(1) DHS shall issue a Notice of
Referral to Immigration Judge for
asylum-and-withholding-only
proceedings under 8 CFR 208.2(c)(1).
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(2) Parole of the alien may be
considered only in accordance with
section 212(d)(5) of the Act and 8 CFR
212.5 of this chapter.
(g) Procedures for a negative fear
determination. (1) If, pursuant to
paragraphs (e) and (f) of this section, an
alien stowaway or an alien subject to
expedited removal does not establish a
credible fear of persecution, reasonable
possibility of persecution, or reasonable
possibility of torture, DHS shall provide
the alien with a written notice of
decision and inquire whether the alien
wishes to have an immigration judge
review the negative determination, in
accordance with section
235(b)(1)(B)(iii)(III) of the Act and this
§ 208.30. The alien must indicate
whether he or she desires such review
on a Record of Negative Fear Finding
and Request for Review by Immigration
Judge. If the alien refuses to make an
indication, DHS shall consider such a
response as a decision to decline
review.
(i) If the alien requests such review,
DHS shall arrange for detention of the
alien and serve him or her with a Notice
of Referral to Immigration Judge, for
review of the negative fear
determination in accordance with
paragraph (g)(2) of this section.
(ii) If the alien is not a stowaway and
does not request a review by an
immigration judge, DHS shall order the
alien removed with a Notice and Order
of Expedited Removal, after review by a
supervisory officer.
(iii) If the alien is a stowaway and the
alien does not request a review by an
immigration judge, DHS shall complete
removal proceedings in accordance with
section 235(a)(2) of the Act. (2) Review
by immigration judge of a negative fear
determination.
(i) Immigration judges shall review
negative fear determinations as
provided in 8 CFR 1208.30(g). DHS,
however, may reconsider a negative
credible fear finding that has been
concurred upon by an immigration
judge after providing notice of its
reconsideration to the immigration
judge.
(ii) DHS shall provide the record of
any negative fear determinations being
reviewed, including copies of the Notice
of Referral to Immigration Judge, the
asylum officer’s notes, the summary of
the material facts, and other materials
upon which the determination was
based, to the immigration judge with the
negative fear determination.
13. Amend § 208.31 by revising
paragraphs (f) and (g) to read as follows:
■
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§ 208.31 Reasonable fear of persecution or
torture determinations involving aliens
ordered removed under section 238(b) of
the Act and aliens whose removal is
reinstated under section 241(a)(5) of the
Act.
*
*
*
*
*
(f) Removal of aliens with no
reasonable fear of persecution or
torture. If the asylum officer determines
that the alien has not established a
reasonable fear of persecution or torture,
the asylum officer shall inform the alien
in writing of the decision and shall
inquire whether the alien wishes to
have an immigration judge review the
negative decision, using the Record of
Negative Reasonable Fear Finding and
Request for Review by Immigration
Judge, on which the alien must indicate
whether he or she desires such review.
If the alien refuses to make an
indication, DHS shall consider such a
response as a decision to decline
review.
(g) Review by immigration judge. The
asylum officer’s negative decision
regarding reasonable fear shall be
subject to review by an immigration
judge upon the alien’s request. If the
alien requests such review, the asylum
officer shall serve him or her with a
Notice of Referral to Immigration Judge.
The record of determination, including
copies of the Notice of Referral to
Immigration Judge, the asylum officer’s
notes, the summary of the material facts,
and other materials upon which the
determination was based shall be
provided to the immigration judge with
the negative determination. In the
absence of exceptional circumstances,
such review shall be conducted by the
immigration judge within 10 days of the
filing of the Notice of Referral to
Immigration Judge with the immigration
court. Upon review of the asylum
officer’s negative reasonable fear
determination:
(1) If the immigration judge concurs
with the asylum officer’s determination
that the alien does not have a reasonable
fear of persecution or torture, the case
shall be returned to DHS for removal of
the alien. No appeal shall lie from the
immigration judge’s decision.
(2) If the immigration judge finds that
the alien has a reasonable fear of
persecution or torture, the alien may
submit an Application for Asylum and
for Withholding of Removal.
(i) The immigration judge shall
consider only the alien’s application for
withholding of removal under 8 CFR
1208.16 and shall determine whether
the alien’s removal to the country of
removal must be withheld or deferred.
(ii) Appeal of the immigration judge’s
decision whether removal must be
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withheld or deferred lies with the Board
of Immigration Appeals. If the alien or
DHS appeals the immigration judge’s
decision, the Board shall review only
the immigration judge’s decision
regarding the alien’s eligibility for
withholding or deferral of removal
under 8 CFR 1208.16.
DEPARTMENT OF JUSTICE
PART 235—INSPECTION OF PERSONS
APPLYING FOR ADMISSION
■
14. The authority citation for part 235
continues to read as follows:
■
Authority: 8 U.S.C. 1101 and note, 1103,
1183, 1185 (pursuant to E.O. 13323, 69 FR
241, 3 CFR, 2003 Comp., p. 278), 1201, 1224,
1225, 1226, 1228, 1365a note, 1365b, 1379,
1731–32; Title VII of Public Law 110–229; 8
U.S.C. 1185 note (section 7209 of Public Law
108–458); Public Law 112–54.
15. Amend § 235.6 by revising
paragraphs (a)(1)(ii) and (a)(2)(i) and (iii)
and adding paragraph (c) to read as
follows:
■
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§ 235.6
Referral to immigration judge.
(a) * * *
(1) * * *
(ii) If an immigration officer verifies
that an alien subject to expedited
removal under section 235(b)(1) of the
Act has been admitted as a lawful
permanent resident or refugee, or
granted asylum, or, upon review
pursuant to § 235.3(b)(5)(iv) of chapter I,
an immigration judge determines that
the alien was once so admitted or
granted asylum, provided that such
status has not been terminated by final
administrative action, and the DHS
initiates removal proceedings against
the alien under section 240 of the Act.
*
*
*
*
*
(2) * * *
(i) If an asylum officer determines that
the alien does not have a credible fear
of persecution, reasonable possibility of
persecution, or reasonable possibility of
torture, and the alien requests a review
of that determination by an immigration
judge; or
*
*
*
*
*
(iii) If an immigration officer refers an
applicant in accordance with the
provisions of 8 CFR 208.30 or 8 CFR
208.31.
*
*
*
*
*
(c) The provisions of part 235 are
separate and severable from one
another. In the event that any provision
in part 235 is stayed, enjoined, not
implemented, or otherwise held invalid,
the remaining provisions shall
nevertheless be implemented as an
independent rule and continue in effect.
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Accordingly, for the reasons set forth
in the preamble, 8 CFR parts 1003, 1208,
1212, 1235, and 1244 are amended as
follows:
PART 1003—EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW
16. The authority citation for part
1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8
U.S.C. 1101, 1103, 1154, 1155, 1158, 1182,
1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28
U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No.
2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002;
section 203 of Public Law 105–100, 111 Stat.
2196–200; sections 1506 and 1510 of Public
Law 106–386, 114 Stat. 1527–29, 1531–32;
section 1505 of Public Law 106–554, 114
Stat. 2763A–326 to–328.
17. Amend § 1003.1 by revising
paragraph (b)(9) to read as follows:
■
§ 1003.1 Organization, jurisdiction, and
powers of the Board of Immigration
Appeals.
*
*
*
*
*
(b) * * *
(9) Decisions of Immigration Judges in
asylum proceedings pursuant to
§ 1208.2(b) and (c) of this chapter.
*
*
*
*
*
■ 18. Amend § 1003.42 by revising the
section heading and paragraphs (a), (b),
(d) through (g), (h)(1), and the last
sentence in paragraph (h)(3) and adding
paragraph (i) to read as follows:
§ 1003.42 Review of credible fear of
persecution, reasonable possibility of
persecution, and reasonable possibility of
torture determinations.
(a) Referral. Jurisdiction for an
immigration judge to review a negative
fear determination by an asylum officer
pursuant to section 235(b)(1)(B) of the
Act shall commence with the filing by
DHS of the Notice of Referral to
Immigration Judge. DHS shall also file
with the notice of referral a copy of the
written record of determination as
defined in section 235(b)(1)(B)(iii)(II) of
the Act, including a copy of the alien’s
written request for review, if any.
(b) Record of proceeding. The
Immigration Court shall create a Record
of Proceeding for a review of a negative
fear determination. This record shall not
be merged with any later proceeding
involving the same alien.
*
*
*
*
*
(d) Standard of review. (1) The
immigration judge shall make a de novo
determination as to whether there is a
significant possibility, taking into
account the credibility of the statements
made by the alien in support of the
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80393
alien’s claim, whether the alien is
subject to any mandatory bars to
applying for asylum or being eligible for
asylum under section 208(a)(2)(B)–(D)
and (b)(2) of the Act, including any bars
established by regulation under section
208(b)(2)(C) of the Act, and such other
facts as are known to the immigration
judge, that the alien could establish his
or her ability to apply for or be granted
asylum under section 208 of the Act.
The immigration judge shall make a de
novo determination as to whether there
is a reasonable possibility, taking into
account the credibility of the statements
made by the alien in support of the
alien’s claim, whether the alien is
subject to any mandatory bars to
eligibility for withholding of removal
under section 241(b)(3)(B) of the Act,
and such other facts as are known to the
immigration judge, that the alien would
be persecuted on account of his or her
race, religion, nationality, membership
in a particular social group, or political
opinion in the country of removal,
consistent with the criteria in 8 CFR
1208.16(b). The immigration judge shall
also make a de novo determination as to
whether there is a reasonable
possibility, taking into account the
credibility of the statements made by
the alien in support of the alien’s claim
and such other facts as are known to the
immigration judge, that the alien would
be tortured in the country of removal,
consistent with the criteria in 8 CFR
1208.16(c), 8 CFR 1208.17, and 8 CFR
1208.18.
(2) If the alien is determined to be an
alien described in 8 CFR208.13(c)(3) or
8 CFR 1208.13(c)(3) and is determined
to lack a reasonable possibility of
persecution or torture under 8 CFR
208.30(e)(5)(ii), the Immigration Judge
shall first review de novo the
determination that the alien is described
in 8 CFR 208.13(c)(3) or 8 CFR
1208.13(c)(3) prior to any further review
of the asylum officer’s negative fear
determination.
(3) If the alien is determined to be an
alien described in 8 CFR 208.13(c)(4) or
8 CFR 1208.13(c)(4) and is determined
to lack a reasonable possibility of
persecution or torture under 8 CFR
208.30(e)(5)(iii), the immigration judge
shall first review de novo the
determination that the alien is described
in 8 CFR 208.13(c)(4) or 8 CFR
1208.13(c)(4) prior to any further review
of the asylum officer’s negative fear
determination.
(e) Timing. The immigration judge
shall conclude the review to the
maximum extent practicable within 24
hours, but in no case later than 7 days
after the date the supervisory asylum
officer has approved the asylum officer’s
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negative credible fear determination
issued on the Record of Negative
Credible Fear Finding and Request for
Review.
(f) Decision. (1) The decision of the
immigration judge shall be rendered in
accordance with the provisions of 8 CFR
1208.30(g)(2). In reviewing the negative
fear determination by DHS, the
immigration judge shall apply relevant
precedent issued by the Board of
Immigration Appeals, the Attorney
General, the Federal circuit court of
appeals having jurisdiction over the
immigration court where the Request for
Review is filed, and the Supreme Court.
(2) No appeal shall lie from a review
of a negative fear determination made
by an Immigration Judge, but the
Attorney General, in the Attorney
General’s sole and unreviewable
discretion, may direct that the
Immigration Judge refer a case for the
Attorney General’s review following the
Immigration Judge’s review of a negative
fear determination.
(3) In any case the Attorney General
decides, the Attorney General’s decision
shall be stated in writing and shall be
transmitted to the Board for transmittal
and service as provided in 8 CFR
1003.1(f). Such decision by the Attorney
General may be designated as precedent
as provided in 8 CFR 1003.1(g).
(g) Custody. An immigration judge
shall have no authority to review an
alien’s custody status in the course of a
review of a negative fear determination
made by DHS.
(h) * * *
(1) Arriving alien. An immigration
judge has no jurisdiction to review a
determination by an asylum officer that
an arriving alien is not eligible to apply
for asylum pursuant to the 2002 U.S.Canada Agreement formed under
section 208(a)(2)(A) of the Act and
should be returned to Canada to pursue
his or her claims for asylum or other
protection under the laws of Canada.
See 8 CFR 208.30(e)(6). However, in any
case where an asylum officer has found
that an arriving alien qualifies for an
exception to that Agreement, an
immigration judge does have
jurisdiction to review a negative fear
finding made thereafter by the asylum
officer as provided in this section.
*
*
*
*
*
(3) * * * However, if the asylum
officer has determined that the alien
may not or should not be removed to a
third country under section 208(a)(2)(A)
of the Act and subsequently makes a
negative fear determination, an
immigration judge has jurisdiction to
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review the negative fear finding as
provided in this section.
*
*
*
*
*
(i) Severability. The provisions of part
1003 are separate and severable from
one another. In the event that any
provision in part 1003 is stayed,
enjoined, not implemented, or
otherwise held invalid, the remaining
provisions shall nevertheless be
implemented as an independent rule
and continue in effect.
PART 1208—PROCEDURES FOR
ASYLUM AND WITHHOLDING OF
REMOVAL
19. The authority citation for part
1208 continues to read as follows:
■
Authority: 8 U.S.C. 1101, 1103, 1158,
1226, 1252, 1282; Title VII of Public Law
110–229.
20. Amend § 1208.1 by adding
paragraphs (c) through (g) to read as
follows:
■
§ 1208.1
General.
*
*
*
*
*
(c) Particular social group. For
purposes of adjudicating an application
for asylum under section 208 of the Act
or an application for withholding of
removal under section 241(b)(3) of the
Act, a particular social group is one that
is based on an immutable or
fundamental characteristic, is defined
with particularity, and is recognized as
socially distinct in the society at
question. Such a particular social group
cannot be defined exclusively by the
alleged persecutory acts or harm and
must also have existed independently of
the alleged persecutory acts or harm that
forms the basis of the claim. The
Attorney General, in general, will not
favorably adjudicate claims of aliens
who claim a fear of persecution on
account of membership in a particular
social group consisting of or defined by
the following circumstances: past or
present criminal activity or association
(including gang membership); presence
in a country with generalized violence
or a high crime rate; being the subject
of a recruitment effort by criminal,
terrorist, or persecutory groups; the
targeting of the applicant for criminal
activity for financial gain based on
perceptions of wealth or affluence;
interpersonal disputes of which
governmental authorities were unaware
or uninvolved; private criminal acts of
which governmental authorities were
unaware or uninvolved; past or present
terrorist activity or association; past or
present persecutory activity or
association; or, status as an alien
returning from the United States. This
list is nonexhaustive, and the substance
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of the alleged particular social group,
rather than the precise form of its
delineation, shall be considered in
determining whether the group falls
within one of the categories on the list.
No alien shall be found to be a refugee
or have it decided that the alien’s life or
freedom would be threatened based on
membership in a particular social group
in any case unless that person first
articulates on the record, or provides a
basis on the record for determining, the
definition and boundaries of the alleged
particular social group. A failure to
define, or provide a basis for defining,
a formulation of a particular social
group before an immigration judge shall
waive any such claim for all purposes
under the Act, including on appeal. Any
waived claim on this basis shall not
serve as the basis for any motion to
reopen or reconsider for any reason,
including a claim of ineffective
assistance of counsel unless the alien
complies with the procedural
requirements for such a motion and
demonstrates that counsel’s failure to
define, or provide a basis for defining,
a formulation of a particular social
group was both not a strategic choice
and constituted egregious conduct.
(d) Political opinion. For purposes of
adjudicating an application for asylum
under section 208 of the Act or an
application for withholding of removal
under section 241(b)(3) of the Act, a
political opinion is one expressed by or
imputed to an applicant in which the
applicant possesses an ideal or
conviction in support of the furtherance
of a discrete cause related to political
control of a State or a unit thereof. The
Attorney General, in general, will not
favorably adjudicate claims of aliens
who claim a fear of persecution on
account of a political opinion defined
solely by generalized disapproval of,
disagreement with, or opposition to
criminal, terrorist, gang, guerilla, or
other non-state organizations absent
expressive behavior in furtherance of a
cause against such organizations related
to efforts by the State to control such
organizations or behavior that is
antithetical to or otherwise opposes the
ruling legal entity of the State or a legal
sub-unit of the State. A person who has
been forced to abort a pregnancy or to
undergo involuntary sterilization, or
who has been persecuted for failure or
refusal to undergo such a procedure or
for other resistance to a coercive
population control program, shall be
deemed to have been persecuted on
account of political opinion, and a
person who has a well-founded fear that
he or she will be forced to undergo such
a procedure or subject to persecution for
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such failure, refusal, or resistance shall
be deemed to have a well-founded fear
of persecution on account of political
opinion.
(e) Persecution. For purposes of
adjudicating an application for asylum
under section 208 of the Act or an
application for withholding of removal
under section 241(b)(3) of the Act,
persecution requires an intent to target
a belief or characteristic, a severe level
of harm, and the infliction of a severe
level of harm by the government of a
country or by persons or an organization
that the government was unable or
unwilling to control. For purposes of
evaluating the severity of the level of
harm, persecution is an extreme concept
involving a severe level of harm that
includes actions so severe that they
constitute an exigent threat. Persecution
does not encompass the generalized
harm that arises out of civil, criminal, or
military strife in a country, nor does it
encompass all treatment that the United
States regards as unfair, offensive,
unjust, or even unlawful or
unconstitutional. It does not include
intermittent harassment, including brief
detentions; threats with no actual effort
to carry out the threats, except that
particularized threats of a severe harm
of immediate and menacing nature
made by an identified entity may
constitute persecution; or, non-severe
economic harm or property damage,
though this list is nonexhaustive. The
existence of government laws or policies
that are unenforced or infrequently
enforced do not, by themselves,
constitute persecution, unless there is
credible evidence that those laws or
policies have been or would be applied
to an applicant personally.
(f) Nexus. For purposes of
adjudicating an application for asylum
under section 208 of the Act or an
application for withholding of removal
under section 241(b)(3) of the Act, the
Attorney General, in general, will not
favorably adjudicate the claims of aliens
who claim persecution based on the
following list of nonexhaustive
circumstances:
(1) Interpersonal animus or
retribution;
(2) Interpersonal animus in which the
alleged persecutor has not targeted, or
manifested an animus against, other
members of an alleged particular social
group in addition to the member who
has raised the claim at issue;
(3) Generalized disapproval of,
disagreement with, or opposition to
criminal, terrorist, gang, guerilla, or
other non-state organizations absent
expressive behavior in furtherance of a
discrete cause against such
organizations related to control of a
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State or expressive behavior that is
antithetical to the State or a legal unit
of the State;
(4) Resistance to recruitment or
coercion by guerilla, criminal, gang,
terrorist or other non-state
organizations;
(5) The targeting of the applicant for
criminal activity for financial gain based
on wealth or affluence or perceptions of
wealth or affluence;
(6) Criminal activity;
(7) Perceived, past or present, gang
affiliation; or,
(8) Gender.
(g) Evidence based on stereotypes. For
purposes of adjudicating an application
for asylum under section 208 of the Act
or an application for withholding of
removal under section 241(b)(3) of the
Act, evidence offered in support of such
an application which promotes cultural
stereotypes about a country, its
inhabitants, or an alleged persecutor,
including stereotypes based on race,
religion, nationality, or gender, shall not
be admissible in adjudicating that
application, provided that nothing in
this paragraph shall be construed as
prohibiting the submission of evidence
that an alleged persecutor holds
stereotypical views of the applicant.
■ 21. Amend § 1208.2 by adding
paragraph (c)(1)(ix) to read as follows:
§ 1208.2
Jurisdiction.
*
*
*
*
*
(c) * * *
(1) * * *
(ix) An alien found to have a credible
fear of persecution, reasonable
possibility of persecution, or reasonable
possibility of torture in accordance with
§ 208.30, § 1003.42, or § 1208.30.
*
*
*
*
*
■ 22. Amend § 1208.5 by revising the
first sentence of paragraph (a) to read as
follows:
§ 1208.5 Special duties toward aliens in
custody of DHS.
(a) General. When an alien in the
custody of DHS requests asylum or
withholding of removal, or expresses a
fear of persecution or harm upon return
to his or her country of origin or to
agents thereof, DHS shall make available
the appropriate application forms and
shall provide the applicant with the
information required by section
208(d)(4) of the Act, including in the
case of an alien who is in custody with
a positive credible fear determination
under 8 CFR 208.30 or a reasonable fear
determination pursuant to 8 CFR
208.31, and except in the case of an
alien who is in custody pending a
credible fear determination under 8 CFR
208.30 or a reasonable fear
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80395
determination pursuant to 8 CFR
208.31. * * *
*
*
*
*
*
■ 23. Amend § 1208.6 by revising
paragraphs (a) and (b) and adding
paragraphs (d) and (e) to read as follows:
§ 1208.6
Disclosure to third parties.
(a) Information contained in or
pertaining to any application for refugee
admission, asylum, withholding of
removal under section 241(b)(3) of the
Act, or protection under regulations
issued pursuant to the Convention
Against Torture’s implementing
legislation, records pertaining to any
credible fear determination conducted
pursuant to § 208.30, and records
pertaining to any reasonable fear
determination conducted pursuant to
§ 208.31, shall not be disclosed without
the written consent of the applicant,
except as permitted by this section or at
the discretion of the Attorney General.
(b) The confidentiality of other
records kept by DHS and the Executive
Office for Immigration Review that
indicate that a specific alien has applied
for refugee admission, asylum,
withholding of removal under section
241(b)(3) of the Act, or protection under
regulations issued pursuant to the
Convention Against Torture’s
implementing legislation, or has
received a credible fear or reasonable
fear interview, or received a credible
fear or reasonable fear review shall also
be protected from disclosure, except as
permitted in this section. DHS will
coordinate with the Department of State
to ensure that the confidentiality of
those records is maintained if they are
transmitted to Department of State
offices in other countries.
*
*
*
*
*
(d)(1) Any information contained in
an application for refugee admission,
asylum, withholding of removal under
section 241(b)(3) the Act, or protection
under regulations issued pursuant to the
Convention Against Torture’s
implementing legislation, any relevant
and applicable information supporting
that application, any information
regarding an alien who has filed such an
application, and any relevant and
applicable information regarding an
alien who has been the subject of a
reasonable fear or credible fear
determination may be disclosed:
(i) As part of an investigation or
adjudication of the merits of that
application or of any other application
under the immigration laws;
(ii) As part of any State or Federal
criminal investigation, proceeding, or
prosecution;
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(iii) Pursuant to any State or Federal
mandatory reporting requirement;
(iv) To deter, prevent, or ameliorate
the effects of child abuse;
(v) As part of any proceeding arising
under the immigration laws, including
proceedings arising under the Act; and
(vi) As part of the Government’s
defense of any legal action relating to
the alien’s immigration or custody
status, including petitions for review
filed in accordance with 8 U.S.C. 1252.
(2) If information may be disclosed
under paragraph (d)(1) of this section,
the disclosure provisions in paragraphs
(a), (b), and (c) of this section shall not
apply.
(e) Nothing in this section shall be
construed as prohibiting the disclosure
of information contained in an
application for refugee admission,
asylum, withholding of removal under
section 241(b)(3)(B) of the Act, or
protection under the regulations issued
pursuant to the Convention Against
Torture’s implementing legislation, any
relevant and applicable information
supporting that application, information
regarding an alien who has filed such an
application, or information regarding an
alien who has been the subject of a
reasonable fear or credible fear
determination:
(1) Among employees of the
Department of Justice, the Department
of Homeland Security, the Department
of State, the Department of Health and
Human Services, the Department of
Labor, or a U.S. national security agency
having a need to examine the
information for an official purpose; or
(2) Where a United States government
employee or contractor has a good faith
and reasonable belief that disclosure is
necessary to prevent the commission of
a crime, the furtherance of an ongoing
crime, or to ameliorate the effects of a
crime.
■ 24. Section 1208.13 is amended by
revising paragraphs (b)(3) introductory
text and (b)(3)(ii) and adding paragraphs
(b)(3)(iii) and (iv), (d), and (e) to read as
follows:
§ 1208.13
Establishing asylum eligibility.
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*
*
*
*
*
(b) * * *
(3) Reasonableness of internal
relocation. For purposes of
determinations under paragraphs
(b)(1)(i) and (ii) and (b)(2) of this
section, adjudicators should consider
the totality of the relevant
circumstances regarding an applicant’s
prospects for relocation, including the
size of the country of nationality or last
habitual residence, the geographic locus
of the alleged persecution, the size,
numerosity, and reach of the alleged
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persecutor, and the applicant’s
demonstrated ability to relocate to the
United States in order to apply for
asylum.
*
*
*
*
*
(ii) In cases in which the persecutor
is a government or is governmentsponsored, it shall be presumed that
internal relocation would not be
reasonable, unless the Department of
Homeland Security establishes by a
preponderance of the evidence that,
under all the circumstances, it would be
reasonable for the applicant to relocate.
(iii) Regardless of whether an
applicant has established persecution in
the past, in cases in which the
persecutor is not the government or a
government-sponsored actor, or
otherwise is a private actor, there shall
be a presumption that internal
relocation would be reasonable unless
the applicant establishes, by a
preponderance of the evidence, that it
would be unreasonable to relocate.
(iv) For purposes of determinations
under paragraphs (b)(3)(ii) and (iii) of
this section, persecutors who are private
actors—including persecutors who are
gang members, officials acting outside
their official capacity, family members
who are not themselves government
officials, or neighbors who are not
themselves government officials—shall
not be considered to be persecutors who
are the government or governmentsponsored absent evidence that the
government sponsored the persecution.
*
*
*
*
*
(d) Discretion. Factors that fall short
of grounds of mandatory denial of an
asylum application may constitute
discretionary considerations.
(1) The following are significant
adverse discretionary factors that a
decision-maker shall consider, if
applicable, in determining whether an
alien merits a grant of asylum in the
exercise of discretion:
(i) An alien’s unlawful entry or
unlawful attempted entry into the
United States unless such entry or
attempted entry was made in immediate
flight from persecution in a contiguous
country or unless such entry or
attempted entry was made by an alien
under the age of 18 at the time the entry
or attempted entry was made;
(ii) The failure of an alien to apply for
protection from persecution or torture in
at least one country outside the alien’s
country of citizenship, nationality, or
last lawful habitual residence through
which the alien transited before entering
the United States unless:
(A) The alien received a final
judgment denying the alien protection
in such country;
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(B) The alien demonstrates that he or
she satisfies the definition of ‘‘victim of
a severe form of trafficking in persons’’
provided in 8 CFR 214.11; or
(C) Such country or countries were, at
the time of the transit, not parties to the
1951 Convention relating to the Status
of Refugees, the 1967 Protocol relating
to the Status of Refugees, or the
Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment; and
(iii) An alien’s use of fraudulent
documents to enter the United States,
unless the alien arrived in the United
States by air, sea, or land directly from
the applicant’s home country without
transiting through any other country.
(2)(i) The Attorney General, except as
provided in paragraph (d)(2)(ii) of this
section, will not favorably exercise
discretion under section 208 of the Act
for an alien who:
(A) Immediately prior to his arrival in
the United States or en route to the
United States from the alien’s country of
citizenship, nationality, or last lawful
habitual residence, spent more than 14
days in any one country unless:
(1) The alien demonstrates that he or
she applied for protection from
persecution or torture in such country
and the alien received a final judgment
denying the alien protection in such
country;
(2) The alien demonstrates that he or
she satisfies the definition of ‘‘victim of
a severe form of trafficking in persons’’
provided in 8 CFR 214.11; or
(3) Such country was, at the time of
the transit, not a party to the 1951
Convention relating to the Status of
Refugees the 1967 Protocol relating to
the Status of Refugees, or the
Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment;
(B) Transits through more than one
country between his country of
citizenship, nationality, or last habitual
residence and the United States unless:
(1) The alien demonstrates that he or
she applied for protection from
persecution or torture in at least one
such country and the alien received a
final judgment denying the alien
protection in such country;
(2) The alien demonstrates that he or
she satisfies the definition of ‘‘victim of
a severe form of trafficking in persons’’
provided in 8 CFR 214.11; or
(3) All such countries through which
the alien transited en route to the
United States were, at the time of the
transit, not parties to the 1951
Convention relating to the Status of
Refugees, the 1967 Protocol relating to
the Status of Refugees, or the
Convention against Torture and Other
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Cruel, Inhuman or Degrading Treatment
or Punishment;
(C) Would otherwise be subject to
§ 1208.13(c) but for the reversal, vacatur,
expungement, or modification of a
conviction or sentence unless the alien
was found not guilty;
(D) Accrued more than one year of
unlawful presence in the United States,
as defined in sections 212(a)(9)(B)(ii)
and (iii) of the Act, prior to filing an
application for asylum;
(E) At the time the asylum application
is filed with the immigration court or is
referred from DHS has:
(1) Failed to timely file (or timely file
a request for an extension of time to file)
any required Federal, State, or local
income tax returns;
(2) Failed to satisfy any outstanding
Federal, State, or local tax obligations;
or
(3) Has income that would result in
tax liability under section 1 of the
Internal Revenue Code of 1986 and that
was not reported to the Internal
Revenue Service;
(F) Has had two or more prior asylum
applications denied for any reason;
(G) Has withdrawn a prior asylum
application with prejudice or been
found to have abandoned a prior asylum
application;
(H) Failed to attend an interview
regarding his or her asylum application
with DHS, unless the alien shows by a
preponderance of the evidence that:
(1) Exceptional circumstances
prevented the alien from attending the
interview; or
(2) The interview notice was not
mailed to the last address provided by
the alien or the alien’s representative
and neither the alien nor the alien’s
representative received notice of the
interview; or
(I) Was subject to a final order of
removal, deportation, or exclusion and
did not file a motion to reopen to seek
asylum based on changed country
conditions within one year of the
changes in country conditions.
(ii) Where one or more of the adverse
discretionary factors set forth in
paragraph (d)(2)(i) of this section are
present, the Attorney General, in
extraordinary circumstances, such as
those involving national security or
foreign policy considerations, or cases
in which an alien, by clear and
convincing evidence, demonstrates that
the denial of the application for asylum
would result in exceptional and
extremely unusual hardship to the alien,
may favorably exercise discretion under
section 208 of the Act, notwithstanding
the applicability of paragraph (d)(2)(i).
Depending on the gravity of the
circumstances underlying the
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application of paragraph (d)(2)(i), a
showing of extraordinary circumstances
might still be insufficient to warrant a
favorable exercise of discretion under
section 208 of the Act.
(e) Prima facie eligibility. (1)
Notwithstanding any other provision of
this part, upon oral or written motion by
the Department of Homeland Security,
an immigration judge shall, if warranted
by the record, pretermit and deny any
application for asylum, withholding of
removal under section 241(b)(3) of the
Act, or protection under the regulations
issued pursuant to the Convention
Against Torture’s implementing
legislation if the alien has not
established a prima facie claim for relief
or protection under applicable law. An
immigration judge need not conduct a
hearing prior to pretermitting and
denying an application under this
paragraph (e)(1) but must consider any
response to the motion before making a
decision.
(2) Notwithstanding any other
provision of this part, upon his or her
own authority, an immigration judge
shall, if warranted by the record,
pretermit and deny any application for
asylum, withholding of removal under
section 241(b)(3) of the Act, or
protection under the regulations issued
pursuant to the Convention Against
Torture’s implementing legislation if the
alien has not established a prima facie
claim for relief or protection under
applicable law, provided that the
immigration judge shall give the parties
at least 10 days’ notice prior to entering
such an order. An immigration judge
need not conduct a hearing prior to
pretermitting and denying an
application under this paragraph (e)(2)
but must consider any filings by the
parties within the 10-day period before
making a decision.
§ 1208.14
[Amended]
25. Amend § 1208.14 by
a. Removing the words ‘‘§ 1235.3(b) of
this chapter’’ in paragraphs (c)(4)(ii)
introductory text and (c)(4)(ii)(A) and
adding in their place the words
‘‘§ 235.3(b) of chapter I’’; and
■ b. Removing the citations ‘‘§ 1208.30’’
and ‘‘§ 1208.30(b)’’ in paragraph
(c)(4)(ii)(A) and adding in their place
the words ‘‘§ 208.30 of chapter I’’.
■ 26. Revise § 1208.15 to read as
follows:
■
■
§ 1208.15
Definition of ‘‘firm resettlement.’’
(a) An alien is considered to be firmly
resettled if, after the events giving rise
to the alien’s asylum claim:
(1) The alien resided in a country
through which the alien transited prior
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80397
to arriving in or entering the United
States and—
(i) Received or was eligible for any
permanent legal immigration status in
that country;
(ii) Resided in such a country with
any non-permanent but indefinitely
renewable legal immigration status
(including asylee, refugee, or similar
status but excluding status such as of a
tourist); or
(iii) Resided in such a country and
could have applied for and obtained any
non-permanent but indefinitely
renewable legal immigration status in
that country;
(2) The alien physically resided
voluntarily, and without continuing to
suffer persecution in any one country
for one year or more after departing his
country of nationality or last habitual
residence and prior to arrival in or entry
into the United States, provided that
time spent in Mexico by an alien who
is not a native or citizen of Mexico
solely as a direct result of being
returned to Mexico pursuant to section
235(b)(2)(C) of the Act or of being
subject to metering would not be
counted for purposes of this paragraph;
or
(3)(i) The alien is a citizen of a
country other than the one where the
alien alleges a fear of persecution and
the alien was present in that country
after departing his country of nationality
or last habitual residence and prior to
arrival in or entry into the United States,
or
(ii) the alien was a citizen of a country
other than the one where the alien
alleges a fear of persecution, the alien
was present in that country after
departing his country of nationality or
last habitual residence and prior to
arrival in or entry into the United States,
and the alien renounced that citizenship
after arriving in the United States.
(b) The provisions of 8 CFR 1240.8(d)
shall apply when the evidence of record
indicates that the firm resettlement bar
may apply. In such cases, the alien shall
bear the burden of proving the bar does
not apply. Either DHS or the
immigration judge may raise the issue of
the application of the firm resettlement
bar based on the evidence of record. The
firm resettlement of an alien’s parent(s)
shall be imputed to the alien if the
resettlement occurred before the alien
turned 18 and the alien resided with the
alien’s parents at the time of the firm
resettlement unless he or she could not
have derived any permanent legal
immigration status or any nonpermanent but indefinitely renewable
legal immigration status (including
asylee, refugee, or similar status but
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§ 1208.18 Implementation of the
Convention Against Torture.
excluding status such as of a tourist)
from the alien’s parent.
27. Amend § 1208.16 by revising
paragraphs (b)(3) introductory text and
(b)(3)(ii) and adding paragraphs
(b)(3)(iii) and (iv) to read as follows:
■
§ 1208.16 Withholding of removal under
section 241(b)(3)(B) of the Act and
withholding of removal under the
Convention Against Torture.
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*
*
*
*
*
(b) * * *
(3) Reasonableness of internal
relocation. For purposes of
determinations under paragraphs (b)(1)
and (2) of this section, adjudicators
should consider the totality of the
relevant circumstances regarding an
applicant’s prospects for relocation,
including the size of the country of
nationality or last habitual residence,
the geographic locus of the alleged
persecution, the size, reach, or
numerosity of the alleged persecutor,
and the applicant’s demonstrated ability
to relocate to the United States in order
to apply for withholding of removal.
*
*
*
*
*
(ii) In cases in which the persecutor
is a government or is governmentsponsored, it shall be presumed that
internal relocation would not be
reasonable, unless the DHS establishes
by a preponderance of the evidence that,
under all the circumstances, it would be
reasonable for the applicant to relocate.
(iii) Regardless of whether an
applicant has established persecution in
the past, in cases in which the
persecutor is not the government or a
government-sponsored actor, or
otherwise is a private actor, there shall
be a presumption that internal
relocation would be reasonable unless
the applicant establishes, by a
preponderance of the evidence, that it
would be unreasonable to relocate.
(iv) For purposes of determinations
under paragraphs (b)(3)(ii) and (iii) of
this section, persecutors who are private
actors, including persecutors who are
gang members, public official who are
not acting under color of law, or family
members who are not themselves
government officials or neighbors who
are not themselves government officials,
shall not be considered to be
persecutors who are the government or
government-sponsored absent evidence
that the government sponsored the
persecution.
*
*
*
*
*
28. Amend § 1208.18 by revising
paragraphs (a)(1) and (7) to read as
follows:
■
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29. Revise § 1208.20 to read as
follows:
■
(a) * * *
(1) Torture is defined as any act by
which severe pain or suffering, whether
physical or mental, is intentionally
inflicted on a person for such purposes
as obtaining from him or her or a third
person information or a confession,
punishing him or her for an act he or
she or a third person has committed or
is suspected of having committed,
intimidating or coercing him or her or
a third person, or for any reason based
on discrimination of any kind, when
such pain or suffering is inflicted by, or
at the instigation of, or with the consent
or acquiescence of, a public official
acting in an official capacity or other
person acting in an official capacity.
Pain or suffering inflicted by a public
official who is not acting under color of
law shall not constitute pain or suffering
inflicted by, or at the instigation of, or
with the consent or acquiescence of, a
public official acting in an official
capacity or other person acting in an
official capacity, although a different
public official acting in an official
capacity or other person acting in an
official capacity could instigate, consent
to, or acquiesce in the pain or suffering
inflicted by the public official who is
not acting under color of law.
*
*
*
*
*
(7) Acquiescence of a public official
requires that the public official, prior to
the activity constituting torture, have
awareness of such activity and
thereafter breach his or her legal
responsibility to intervene to prevent
such activity. Such awareness requires a
finding of either actual knowledge or
willful blindness. Willful blindness
means that the public official acting in
an official capacity or other person
acting in an official capacity was aware
of a high probability of activity
constituting torture and deliberately
avoided learning the truth; it is not
enough that such public official acting
in an official capacity or other person
acting in an official capacity was
mistaken, recklessly disregarded the
truth, or negligently failed to inquire. In
order for a public official to breach his
or her legal responsibility to intervene
to prevent activity constituting torture,
the official must have been charged with
preventing the activity as part of his or
her duties and have failed to intervene.
No person will be deemed to have
breached a legal responsibility to
intervene if such person is unable to
intervene, or if the person intervenes
but is unable to prevent the activity that
constitutes torture.
*
*
*
*
*
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§ 1208.20 Determining if an asylum
application is frivolous.
(a) For applications filed on or after
April 1, 1997, and before January 11,
2021, an applicant is subject to the
provisions of section 208(d)(6) of the
Act only if the alien received the notice
required by section 208(d)(4)(A) of the
Act and a final order by an immigration
judge or the Board of Immigration
Appeals specifically finds that the alien
knowingly filed a frivolous asylum
application. An application is frivolous
if:
(1) Any of the material elements in
the asylum application is deliberately
fabricated, and the immigration judge or
the Board is satisfied that the applicant,
during the course of the proceedings,
has had sufficient opportunity to
account for any discrepancies or
implausible aspects of the claim.
(2) Paragraphs (b) through (f) shall
only apply to applications filed on or
after January 11, 2021.
(b) For applications filed on or after
January 11, 2021, an asylum officer may
determine that the applicant knowingly
filed a frivolous asylum application and
may refer the applicant to an
immigration judge on that basis, so long
as the applicant has received the notice
required by section 208(d)(4)(A) of the
Act. For applications referred to an
immigration judge, an asylum officer’s
determination that an application is
frivolous will not render an applicant
permanently ineligible for immigration
benefits unless an immigration judge or
the Board makes a finding of
frivolousness as described in paragraph
(c) of this section.
(c) For applications filed on or after
January 11, 2021, an asylum application
is frivolous if it:
(1) Contains a fabricated material
element;
(2) Is premised upon false or
fabricated evidence unless the
application would have been granted
without the false or fabricated evidence;
(3) Is filed without regard to the
merits of the claim; or
(4) Is clearly foreclosed by applicable
law.
(d) If the alien has been provided the
warning required by section
208(d)(4)(A) of the Act, he or she need
not be given any additional or further
opportunity to account for any issues
with his or her claim prior to the entry
of a frivolousness finding.
(e) An asylum application may be
found frivolous even if it was untimely
filed.
(f) A withdrawn asylum application
may be found frivolous unless:
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(1) The alien wholly disclaims the
application and withdraws it with
prejudice;
(2) The alien is eligible for and agrees
to accept voluntary departure for a
period of no more than 30 days
pursuant to section 240B(a) of the Act;
(3) The alien withdraws any and all
other applications for relief or
protection with prejudice; and
(4) The alien waives his right to
appeal and any rights to file, for any
reason, a motion to reopen or
reconsider.
(g) For purposes of this section, a
finding that an alien filed a knowingly
frivolous asylum application shall not
preclude the alien from seeking
withholding of removal under section
241(b)(3) of the Act or protection under
the regulations issued pursuant to the
Convention Against Torture’s
implementing legislation.
■ 30. Add § 1208.25 to read as follows:
§ 1208.25
Severability.
The provisions of part 1208 are
separate and severable from one
another. In the event that any provision
in part 1208 is stayed, enjoined, not
implemented, or otherwise held invalid,
the remaining provisions shall
nevertheless be implemented as an
independent rule and continue in effect.
■ 31. Amend § 1208.30 by revising the
section heading and paragraphs (a), (b)
introductory text, (b)(2), (e), and (g) to
read as follows:
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§ 1208.30 Credible fear of persecution,
reasonable possibility of persecution, and
reasonable possibility of torture
determinations involving stowaways and
applicants for admission who are found
inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act or whose
entry is limited or suspended under section
212(f) or 215(a)(1) of the Act, or who failed
to apply for protection from persecution in
a third country where potential relief is
available while en route to the United
States.
(a) Jurisdiction. The provisions of this
subpart B apply to aliens subject to
sections 235(a)(2) and 235(b)(1) of the
Act. Pursuant to section 235(b)(1)(B)
and 8 CFR 208.30, DHS has exclusive
jurisdiction to make fear
determinations, and the immigration
judges have exclusive jurisdiction to
review such determinations. Except as
otherwise provided in this subpart B,
paragraphs (b) through (g) of this section
and 8 CFR 208.30 are the exclusive
procedures applicable to stowaways and
applicants for admission who are found
inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act and
who receive fear interviews,
determinations, and reviews under
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section 235(b)(1)(B) of the Act and 8
CFR 208.30. Prior to January 1, 2030, an
alien physically present in or arriving in
the Commonwealth of the Northern
Mariana Islands is ineligible to apply for
asylum and may only establish
eligibility for withholding of removal
pursuant to section 241(b)(3) of the Act
or withholding or deferral of removal
under the regulations issued pursuant to
the Convention Against Torture’s
implementing legislation.
(b) Treatment of dependents. A
spouse or child of an alien may be
included in that alien’s fear evaluation
and determination, if such spouse or
child:
*
*
*
*
*
(2) Desires to be included in the
principal alien’s determination.
However, any alien may have his or her
evaluation and determination made
separately, if he or she expresses such
a desire.
*
*
*
*
*
(e) Determination. For the standards
and procedures for asylum officers in
conducting credible fear of persecution,
reasonable possibility of persecution,
and reasonable possibility of torture
interviews and in making positive and
negative fear determinations, see 8 CFR
208.30. The immigration judges will
review such determinations as provided
in paragraph (g) of this section and 8
CFR 1003.42.
*
*
*
*
*
(g) Procedures for negative fear
determinations—(1) Review by
immigration judge of a mandatory bar
finding. (i) If the alien is determined to
be an alien described in 8 CFR
208.13(c)(3) or 8 CFR 1208.13(c)(3) and
is determined to lack a credible fear of
persecution or a reasonable possibility
of persecution or torture under 8 CFR
208.30(e)(5)(ii), the immigration judge
shall first review de novo the
determination that the alien is described
in 8 CFR 208.13(c)(3) or 8 CFR
1208.13(c)(3). If the immigration judge
finds that the alien is not described in
8 CFR 208.13(c)(3) or 8 CFR
1208.13(c)(3), then the immigration
judge shall vacate the determination of
the asylum officer, and DHS may
commence asylum-and-withholdingonly proceedings under 8 CFR
1208.2(c)(1). If the immigration judge
concurs with the determination that the
alien is an alien described in 8 CFR
208.13(c)(3) or 8 CFR 1208.13(c)(3), the
immigration judge will then review the
asylum officer’s negative determinations
regarding credible fear and regarding
reasonable possibility made under 8
CFR 208.30(e)(5)(iv) consistent with
paragraph (g)(2) of this section, except
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80399
that the immigration judge will review
the fear of persecution or torture
findings under the reasonable
possibility standard instead of the
credible fear (‘‘significant possibility’’)
standard described in paragraph (g)(2).
(ii) If the alien is determined to be an
alien described as ineligible for asylum
in 8 CFR 208.13(c)(4) or 8 CFR
1208.13(c)(4) and is determined to lack
a reasonable possibility of persecution
or torture under 8 CFR 208.30(e)(5)(v),
the immigration judge shall first review
de novo the determination that the alien
is described as ineligible for asylum in
8 CFR 208.13(c)(4) or 8 CFR
1208.13(c)(4). If the immigration judge
finds that the alien is not described as
ineligible for asylum in 8 CFR
208.13(c)(4) or 8 CFR 1208.13(c)(4), then
the immigration judge shall vacate the
determination of the asylum officer, and
DHS may commence asylum-andwithholding-only proceedings under 8
CFR 1208.2(c)(1). If the immigration
judge concurs with the determination
that the alien is an alien described as
ineligible for asylum in 8 CFR
208.13(c)(4) or 8 CFR 1208.13(c)(4), the
immigration judge will then review the
asylum officer’s negative decision
regarding reasonable possibility made
under 8 CFR 208.30(e)(5)(v) consistent
with paragraph (g)(2) of this section,
except that the immigration judge will
review the fear of persecution or torture
findings under the reasonable
possibility standard instead of the
credible fear of persecution standard
described in paragraph (g)(2).
(2) Review by immigration judge of a
negative fear finding. (i) The asylum
officer’s negative decision regarding a
credible fear of persecution, reasonable
possibility of persecution, and
reasonable possibility of torture shall be
subject to review by an immigration
judge upon the applicant’s request, in
accordance with section
235(b)(1)(B)(iii)(III) of the Act. If the
alien refuses to make an indication,
DHS will consider such a response as a
decision to decline review.
(ii) The record of the negative fear
determination, including copies of the
Notice of Referral to Immigration Judge,
the asylum officer’s notes, the summary
of the material facts, and other materials
upon which the determination was
based shall be provided to the
immigration judge with the negative fear
determination.
(iii) A fear hearing will be closed to
the public unless the alien states for the
record or submits a written statement
that the alien is waiving that
requirement; in that event the hearing
shall be open to the public, subject to
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the immigration judge’s discretion as
provided in 8 CFR 1003.27.
(iv) Upon review of the asylum
officer’s negative fear determinations:
(A) If the immigration judge concurs
with the determination of the asylum
officer that the alien has not established
a credible fear of persecution,
reasonable possibility of persecution, or
reasonable possibility of torture, the
case shall be returned to DHS for
removal of the alien. The immigration
judge’s decision is final and may not be
appealed.
(B) If the immigration judge finds that
the alien, other than an alien stowaway,
establishes a credible fear of
persecution, reasonable possibility of
persecution, or reasonable possibility of
torture, the immigration judge shall
vacate the Notice and Order of
Expedited Removal, and DHS may
commence asylum-and-withholdingonly proceedings under 8 CFR
1208.2(c)(1), during which time the
alien may file an application for asylum
and for withholding of removal in
accordance with 8 CFR 1208.4(b)(3)(i).
Such application shall be considered de
novo in all respects by an immigration
judge regardless of any determination
made under this paragraph.
(C) If the immigration judge finds that
an alien stowaway establishes a credible
fear of persecution, reasonable
possibility of torture, or reasonable
possibility of torture, the alien shall be
allowed to file an application for asylum
and for withholding of removal before
the immigration judge in accordance
with 8 CFR 1208.4(b)(3)(iii). The
immigration judge shall decide the
application as provided in that section.
Such application shall be considered de
novo in all respects by an immigration
judge regardless of any determination
made under this paragraph. Such
decision on that application may be
appealed by either the stowaway or DHS
to the Board of Immigration Appeals. If
a denial of the application for asylum
and for withholding of removal becomes
final, and deferral of removal has not
otherwise been granted pursuant to 8
CFR 1208.17(a), the alien shall be
removed from the United States in
accordance with section 235(a)(2) of the
Act. If an approval of the application for
asylum, withholding of removal, or, as
pertinent, deferral of removal becomes
final, DHS shall terminate removal
proceedings under section 235(a)(2) of
the Act.
32. Amend § 1208.31 by revising
paragraphs (f) and (g) to read as follows:
■
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§ 1208.31 Reasonable fear of persecution
or torture determinations involving aliens
ordered removed under section 238(b) of
the Act and aliens whose removal is
reinstated under section 241(a)(5) of the
Act.
*
*
*
*
*
(f) Removal of aliens with no
reasonable fear of persecution or
torture. If the asylum officer determines
that the alien has not established a
reasonable fear of persecution or torture,
the asylum officer shall inform the alien
in writing of the decision and shall
inquire whether the alien wishes to
have an immigration judge review the
negative decision, using the Record of
Negative Reasonable Fear Finding and
Request for Review by Immigration
Judge, on which the alien must indicate
whether he or she desires such review.
If the alien refuses to make an
indication, DHS shall consider such a
response as a decision to decline
review.
(g) Review by Immigration Judge. The
asylum officer’s negative decision
regarding reasonable fear shall be
subject to review by an immigration
judge upon the alien’s request. If the
alien requests such review, the asylum
officer shall serve him or her with a
Notice of Referral to the Immigration
Judge. The record of determination,
including copies of the Notice of
Referral to the Immigration Judge, the
asylum officer’s notes, the summary of
the material facts, and other materials
upon which the determination was
based shall be provided to the
immigration judge with the negative
determination. In the absence of
exceptional circumstances, such review
shall be conducted by the immigration
judge within 10 days of the filing of the
Notice of Referral to the Immigration
Judge with the immigration court. Upon
review of the asylum officer’s negative
reasonable fear determination:
(1) If the immigration judge concurs
with the asylum officer’s determination
that the alien does not have a reasonable
fear of persecution or torture, the case
shall be returned to DHS for removal of
the alien. No appeal shall lie from the
immigration judge’s decision.
(2) If the immigration judge finds that
the alien has a reasonable fear of
persecution or torture, the alien may
submit an Application for Asylum and
for Withholding of Removal. Such
application shall be considered de novo
in all respects by an immigration judge
regardless of any determination made
under this paragraph.
(i) The immigration judge shall
consider only the alien’s application for
withholding of removal under 8 CFR
1208.16 and shall determine whether
PO 00000
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Fmt 4701
Sfmt 4700
the alien’s removal to the country of
removal must be withheld or deferred.
(ii) Appeal of the immigration judge’s
decision whether removal must be
withheld or deferred lies with the Board
of Immigration Appeals. If the alien or
DHS appeals the immigration judge’s
decision, the Board shall review only
the immigration judge’s decision
regarding the alien’s eligibility for
withholding or deferral of removal
under 8 CFR 1208.16.
PART 1212—DOCUMENTARY
REQUIREMENTS: NONIMMIGRANTS;
WAIVERS; ADMISSION OF CERTAIN
INADMISSIBLE ALIENS; PAROLE
33. The authority citation for part
1212 continues to read as follows:
■
Authority: 8 U.S.C. 1101 and note, 1102,
1103, 1182 and note, 1184, 1187, 1223, 1225,
1226, 1227, 1255; 8 U.S.C. 1185 note (section
7209 of Public Law 108–458); Title VII of
Public Law 110–229.
■
34. Add § 1212.13 to read as follows:
§ 1212.13
Severability.
The provisions of part 1212 are
separate and severable from one
another. In the event that any provision
in part 1212 is stayed, enjoined, not
implemented, or otherwise held invalid,
the remaining provisions shall
nevertheless be implemented as an
independent rule and continue in effect.
§ 1212.14
[Amended]
35. Amend § 1212.14 in paragraph
(a)(1)(vii) by removing the words
‘‘§ 1235.3 of this chapter’’ and adding in
their place the words ‘‘§ 235.3 of chapter
I’’.
■
PART 1235—INSPECTION OF
PERSONS APPLYING FOR ADMISSION
36. The authority citation for part
1235 continues to read as follows:
■
Authority: 8 U.S.C. 1101 and note, 1103,
1183, 1185 (pursuant to E.O. 13323, 69 FR
241, 3 CFR, 2003 Comp., p. 278), 1201, 1224,
1225, 1226, 1228, 1365a note, 1379, 1731–32;
Title VII of Public Law 110–229; 8 U.S.C.
1185 note (section 7209 of Public Law 108–
458).
§§ 1235.1, 1235.2, 1235.3, and 1235.5
[Removed and Reserved]
37. Remove and reserve §§ 1235.1,
1235.2, 1235.3, and 1235.5.
■ 38. Amend § 1235.6 by:
■ a. Removing paragraphs (a)(1)(ii) and
(iii);
■ b. Redesignating paragraph (a)(1)(iv)
as paragraph (a)(1)(ii) and revising it;
■ c. Revising paragraphs (a)(2)(ii) and
(iii); and
■ d. Adding paragraph (c).
■
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The revisions and addition read as
follows:
§ 1235.6
Referral to immigration judge.
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(a) * * *
(1) * * *
(ii) If an immigration officer verifies
that an alien subject to expedited
removal under section 235(b)(1) of the
Act has been admitted as a lawful
permanent resident or refugee, or
granted asylum, or, upon review
pursuant to § 235.3(b)(5)(iv) of chapter I,
an immigration judge determines that
the alien was once so admitted or
granted asylum, provided that such
status has not been terminated by final
administrative action, and DHS initiates
removal proceedings against the alien
under section 240 of the Act.
*
*
*
*
*
(2) * * *
(i) If an asylum officer determines that
an alien does not have a credible fear of
persecution, reasonable possibility of
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80401
persecution, or reasonable possibility of
torture, and the alien requests a review
of that determination by an immigration
judge; or
*
*
*
*
*
(iii) If an immigration officer refers an
applicant in accordance with the
provisions of § 208.30 or § 208.31.
*
*
*
*
*
(c) The provisions of part 1235 are
separate and severable from one
another. In the event that any provision
in part 1235 is stayed, enjoined, not
implemented, or otherwise held invalid,
the remaining provisions shall
nevertheless be implemented as an
independent rule and continue in effect.
Authority: 8 U.S.C. 1103, 1254, 1254a
note, 8 CFR part 2.
PART 1244—TEMPORARY
PROTECTED STATUS FOR
NATIONALS OF DESIGNATED STATES
[FR Doc. 2020–26875 Filed 12–10–20; 8:45 am]
40. Amend § 1244.4 by revising
paragraph (b) to read as follows:
■
§ 1244.4
Ineligible aliens.
*
*
*
*
*
(b) Is an alien described in section
208(b)(2)(A) of the Act.
Chad R. Mizelle,
Senior Official Performing the Duties of the
General Counsel, U.S. Department of
Homeland Security.
Dated: December 2, 2020.
William P. Barr,
Attorney General.
BILLING CODE 4410–30–P; 9111–97–P
39. The authority citation for part
1244 continues to read as follows:
■
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]]>Agencies
[Federal Register Volume 85, Number 239 (Friday, December 11, 2020)]
[Rules and Regulations]
[Pages 80274-80401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26875]
[[Page 80273]]
Vol. 85
Friday,
No. 239
December 11, 2020
Part III
Department of Homeland Security
-----------------------------------------------------------------------
8 CFR Parts 208 and 235
Department of Justice
-----------------------------------------------------------------------
Executive Office for Immigration Review
-----------------------------------------------------------------------
8 CFR Parts 1003, 1208, and 1235
Procedures for Asylum and Withholding of Removal; Credible Fear and
Reasonable Fear Review; Final Rule
Federal Register / Vol. 85 , No. 239 / Friday, December 11, 2020 /
Rules and Regulations
[[Page 80274]]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 208 and 235
RIN 1615-AC42
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003, 1208, and 1235
[EOIR Docket No. 18-0102; A.G. Order No. 4922-2020]
RIN 1125-AA94
Procedures for Asylum and Withholding of Removal; Credible Fear
and Reasonable Fear Review
AGENCY: Department of Homeland Security; Executive Office for
Immigration Review, Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On June 15, 2020, the Department of Homeland Security
(``DHS'') and the Department of Justice (``DOJ'') (collectively ``the
Departments'') published a notice of proposed rulemaking (``NPRM'' or
``proposed rule'') that would amend the regulations governing credible
fear determinations. The proposed rule would make it so that
individuals found to have a credible fear will have their claims for
asylum, withholding of removal under section 241(b)(3) of the
Immigration and Nationality Act (``INA'' or ``the Act'') (``statutory
withholding of removal''), 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''), adjudicated by an immigration judge within the Executive
Office for Immigration Review (``EOIR'') in streamlined proceedings
(rather than under section 240 of the Act), and to specify what
standard of review applies in such streamlined proceedings. The
Departments further proposed changes to the regulations regarding
asylum, statutory withholding of removal, and withholding and deferral
of removal under the Convention Against Torture (``CAT'') regulations.
The Departments also proposed amendments related to the standards for
adjudication of applications for asylum and statutory withholding. This
final rule (``rule'' or ``final rule'') responds to comments received
in response to the NPRM and generally adopts the NPRM with few
substantive changes.
DATES: This rule is effective on January 11, 2021.
FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
Office of Policy, Executive Office for Immigration Review, 5107
Leesburg Pike, Falls Church, VA 22041, telephone (703) 305-0289 (not a
toll-free call).
SUPPLEMENTARY INFORMATION:
I. Executive Summary of the Final Rule
On June 15, 2020, the Departments published an NPRM that would
amend the regulations governing credible fear determinations to
establish streamlined proceedings under a clarified standard of review.
Procedures for Asylum and Withholding of Removal; Credible Fear and
Reasonable Fear Review, 85 FR 36264 (June 15, 2020). The proposed rule
would also amend regulations regarding asylum, statutory withholding of
removal, and withholding and deferral of removal under the regulations.
Id.
The following discussion describes the provisions of the final
rule, which is substantially the same as the NPRM, and summarizes the
changes made in the final rule.
A. Authority and Legal Framework
The Departments are publishing this final rule pursuant to their
respective authorities under the Immigration and Nationality Act
(``INA'') as amended by the Homeland Security Act of 2002 (``HSA''),
Public Law 107-296, 116 Stat. 2135.
The INA, as amended by the HSA, charges the Secretary ``with the
administration and enforcement of this chapter [titled ``Immigration
and Nationality''] and all other laws relating to the immigration and
naturalization of aliens'' and granted the Secretary the power to take
all actions ``necessary for carrying out'' the provisions of the
immigration and nationality laws. INA 103(a)(1) and (3), 8 U.S.C.
1103(a)(1) and (3); See HSA, sec. 1102, 116 Stat. at 2273-74;
Consolidated Appropriations Resolution of 2003, Public Law 108-7, sec.
105, 117 Stat. 11, 531.
The HSA charges the Attorney General with ``such authorities and
functions under this chapter and all other laws relating to the
immigration and naturalization of aliens as were [previously] exercised
by [EOIR], or by the Attorney General with respect to [EOIR] . . . .''
INA 103(g)(1), 8 U.S.C. 1103(g)(1); see 6 U.S.C. 521; HSA, sec. 1102,
116 Stat. at 2274.
Furthermore, the Attorney General is authorized to ``establish such
regulations, prescribe such forms of bond, reports, entries, and other
papers, issue such instructions, review such administrative
determinations in immigration proceedings, delegate such authority, and
perform such other acts as the Attorney General determines to be
necessary for carrying out this section.'' INA 103(g)(2), 8 U.S.C.
1103(g)(2); HSA, sec. 1102, 116 Stat. 2135, 2274.
B. Changes in the Final Rule
Through the NPRM, the Departments sought to satisfy a basic tenet
of asylum law: To assert a ``government's right and duty to protect its
own resources and citizens, while aiding those in true need of
protection from harm.'' 85 FR at 36265 (citations omitted). To achieve
this dual aim, the Departments proposed numerous amendments to the DHS
and DOJ regulations.\1\ After carefully reviewing all of the comments
received on the NPRM, the Departments are making the following changes
to the final rule.
---------------------------------------------------------------------------
\1\ In addition to the amendments outlined in more detail
herein, the Departments also proposed additional minor amendments
for clarity, such as replacing references to the former Immigration
and Naturalization Service with references to DHS where appropriate
(see, e.g., 8 CFR 208.13(b)(3)(ii)) or replacing forms listed by
form number with the form's name (see, e.g., 8 CFR 1003.42(e)). The
Departments also further reiterate the full explanation and
justifications for the proposed changes set out in the preamble to
the NPRM. 85 FR at 36265-88.
---------------------------------------------------------------------------
This final rule makes thirteen non-substantive changes to the
regulatory provisions in the proposed rule, some of which were noted by
commenters. First, the final rule corrects a typographical error--i.e.
``part'' rather than ``party''--in 8 CFR 208.30(e)(2)(ii), which was
proposed to read, ``Such other facts as are known to the officer,
including whether the alien could avoid a future threat to his or her
life or freedom by relocating to another party of the proposed country
of removal and, under all circumstances, it would be reasonable to
expect the applicant to do so'' (emphasis added). Second, the
Departments added the word ``for'' to correct the form name
``Application for Asylum and for Withholding of Removal'' at 8 CFR
208.31(g)(2), 1208.30(g)(2)(iv)(B), and 1208.31(g)(2). Third, the
Departments are replacing the word ``essential'' with the word
``material'' in 8 CFR 208.20(c)(1) and 1208.20(c)(1), consistent with
the stated intent of the NPRM.
Fourth, the Departments are making stylistic revisions to 8 CFR
208.15(a)(1) and 1208.15(a)(1), including breaking them into three
subparagraphs, to make them easier to follow and to reduce the risk of
confusion. Fifth, the Departments
[[Page 80275]]
are editing the temporal language in 8 CFR 208.15(a)(3)(i) and (ii) and
1208.15(a)(3)(i) for clarity and consistency with similar language in 8
CFR 208.15(a)(2) and 1208.15(a)(2). The edited language clarifies the
relevant temporal scope to read ``after departing his country of
nationality or last habitual residence and prior to arrival in or entry
into the United States'' in lieu of the language in the NPRM. Sixth,
the Departments are striking the parenthetical phrase ``(``rogue
official'')'' in 8 CFR 208.18(a)(1) and 1208.18(a)(1). Relatedly, they
are replacing the remaining uses of the phrase ``rogue official'' in 8
CFR 208.16(b)(3)(iv), 208.18(a)(1), and 1208.18(a)(1) with its
definition, ``public official who is not acting under color of law.''
\2\ Seventh, the Departments are adding the clarifying phrase ``as
defined in section 212(a)(9)(B)(ii) and (iii) of the Act'' to 8 CFR
208.13(d)(2)(i)(D) and 1208.13(d)(2)(i)(D) consistent with the intent
of the NPRM. Eighth, the Departments are clarifying the language in 8
CFR 208.1(g) and 1208.1(g) to alleviate apparent confusion and improve
consistency with the intent of the NPRM regarding the use of
stereotypes as evidence for an asylum claim. A bald statement that a
country or its denizens have a particular cultural trait that causes
citizens, nationals, or residents of that country to engage in
persecution is evidence lacking in probative value and has no place in
an adjudication.
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\2\ The NPRM did not use the term ``rogue official'' in 8 CFR
1208.16(b)(3)(iv); rather it referred to ``officials acting outside
their official capacity.'' The discrepancy regarding this phrasing
between 8 CFR 208.16(b)(3)(iv) 8 CFR 1208.16(b)(3)(iv) in the NPRM
was inadvertent, and the Departments are correcting it accordingly
in both regulations in the final rule.
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Ninth, the Departments are making conforming edits to 8 CFR
208.6(a) and (b) and 8 CFR 1208.6(a) and (b) to make clear that the
disclosure provisions of 8 CFR 208.6 and 1208.6 apply to applications
for withholding of removal under the INA and for protection under the
regulations implementing the CAT,\3\ and not solely to asylum
applications. That point is already clear in 8 CFR 208.6(d), (e) and
1208.6(d), (e), and the Departments see no reason not to conform the
other paragraphs in that section for consistency. Tenth, and relatedly,
the Departments are making edits to 8 CFR 208.6(a), (b), (d) and (e)
and 8 CFR 1208.6(a) and (b), (d), and (e) to make clear that
applications for refugee admission pursuant to INA 207(c)(1), 8 U.S.C.
1157(c)(1), and 8 CFR part 207 are subject to the same information
disclosure provisions as similar applications for asylum, withholding
of removal under the INA, and protection under the regulations
implementing the CAT. The Departments already apply the disclosure
provisions to such applications as a matter of policy and see no basis
to treat such applications differently than those for protection filed
by aliens already in or arriving in the United States. Eleventh, the
Departments are amending 8 CFR 208.13(d)(2)(ii) to reflect that,
operationally, DHS may refer or deny an asylum application, depending
on the circumstances of the applicant. See 8 CFR 208.14. Twelfth, the
Departments are correcting 8 CFR 1208.30(g)(1)(i), (ii) to reflect that
asylum officers issue determinations, not orders. See 8 CFR 208.30(e).
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\3\ See UN General Assembly, Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 10
December 1984, United Nations, Treaty Series, vol. 1465, p. 85.
---------------------------------------------------------------------------
Thirteenth, EOIR is making a conforming change to 8 CFR 1244.4(b)
to align it with the both the appropriate statutory citation and the
corresponding language in 8 CFR 244.4(b). Aliens described in INA
208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A), including those subject to the
firm resettlement bar contained in INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi), are ineligible for Temporary Protected Status. That
statutory ineligibility ground is incorporated into regulations in both
chapter I and chapter V of title 8; however, while the title I
provision, 8 CFR 244.4(b), cites the correct statutory provision--INA
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi)--the title V provision, 8
CFR 1244.4(b), maintains an outdated reference to an incorrect
statutory provision. Compare 8 CFR 244.4(b) (referencing INA
208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A)), with 8 CFR 1244.4(b)
(referencing former INA 243(h)(2), 8 U.S.C. 1253(h)(2)).
The Departments are also making four non-substantive changes in the
final rule to correct regulatory provisions that were inadvertently
changed or deleted in the proposed rule or that introduced an
unnecessary redundancy. First, the final rule reinserts language
relating to DHS's ability to reconsider a negative credible fear
finding that has been concurred upon by an immigration judge after
providing notice of its reconsideration to the immigration judge, which
was inadvertently removed from 8 CFR 1208.30(g)(2)(iv)(A) in the NPRM.
The final rule reinserts that language in 8 CFR 208.30(g)(2)(i); it
pertains to a DHS procedure and, thus, appropriately belongs in chapter
I, rather than chapter V, of title 8.
Second, the final rule strikes the regulatory text changes proposed
to 8 CFR 103.5. Those changes were not discussed in the preamble to the
NPRM and were inadvertently included in the NPRM's proposed regulatory
text.
Third, the final rule reinserts the consideration--of-novel-or-
unique-issues language in 8 CFR 208.30(e)(4) that was inadvertently
proposed to be removed in the NPRM, with modifications to account for
changes in terminology adopted via this final rule (specifically,
``[i]n determining whether the alien has a credible fear of
persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a
reasonable possibility of persecution or torture, the asylum officer
shall consider whether the alien's case presents novel or unique issues
that merit consideration in a full hearing before an immigration
judge.'').
Fourth, this final rule removes the following sentence from the
proposed 8 CFR 208.30(e)(4): ``An asylum officer's determination will
not become final until reviewed by a supervisory asylum officer.''
Nearly identical text already exists in 8 CFR 208.30(e)(8) and would be
repetitive to include in 8 CFR 208.30(e)(4).
In response to issues raised by commenters or to eliminate
potential confusion caused by the drafting in the NPRM, the Departments
are making five additional changes to the NPRM in the final rule.
First, the Departments are amending the waiver provision in 8 CFR
208.1(c) and 1208.1(c) related to claims of ineffective assistance of
counsel to provide an exception for egregious conduct on the part of
counsel. As discussed, infra, the Departments believe that cognizable
ineffective assistance of counsel claims in the context of failing to
assert a particular social group should be extremely rare. If a
particular social group is not asserted because the alien did not tell
his or her counsel about it, then there has been no ineffective
assistance on the part of counsel. If the alien did provide his or her
counsel with a particular social group and counsel elected not to
present it as a strategic choice, then there is no basis to reopen the
proceedings. See Matter of B-B-, 22 I&N Dec. at 310 (``subsequent
dissatisfaction with a strategic decision of counsel is not grounds to
reopen''). Nevertheless, the Departments recognize there may be sui
generis situations in which ``egregious circumstances'' may warrant
reopening due to ineffective assistance of counsel in this context,
provided that appropriate procedural requirements for such a claim are
observed. Thus, the Departments are adding such an
[[Page 80276]]
exception to the final rule, consistent with existing case law. See id.
(``The respondents opted for a particular strategy and form of relief,
and although they might wish to fault their former attorney and recant
that decision, they are nonetheless bound by it, unless they can show
egregious conduct on counsel's part.''); see also Matter of Velasquez,
19 I&N Dec. 377, 377 (BIA 1986) (concession of attorney is binding on
an alien absent egregious circumstances).
Second, the Departments are amending the language in 8 CFR 208.1(e)
and 1208.1(e) regarding when threats may constitute persecution to
clarify that particularized threats of severe harm of an immediate and
menacing nature made by an identified entity or person may constitute
persecution, though the Departments expect that such cases will be
rare. This revision, as discussed infra, is consistent with existing
case law. See Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019) (``death threats alone can constitute persecution'' but ``they
constitute `persecution in only a small category of cases, and only
when the threats are so menacing as to cause significant actual
suffering or harm' '' (citation omitted)). As noted, threats ``combined
with confrontation or other mistreatment'' are likely to be
persecution; however, ``cases with threats alone, particularly
anonymous or vague ones, rarely constitute persecution.'' Id. (citation
omitted) (emphasis added); see also Juan Antonio v. Barr, 959 F.3d 778,
794 (6th Cir. 2020) (threats alone amount to persecution only when they
are ``of the most immediate and menacing nature'' (citation omitted)).
Third, in recognition of commenters' concerns and the reality that
aliens under the age of 18, especially very young children, may not
have decisional independence regarding an illegal entry into the United
States, the Departments are amending 8 CFR 208.13(d)(1)(i) and
1208.13(d)(1)(i) to reflect that an unlawful or attempted unlawful
entry into the United States by an alien under the age of 18 will not
be considered as a significant adverse discretionary factor in
considering a subsequent asylum application filed by such an alien. The
Departments do not believe that a similar exception is warranted in 8
CFR 208.13(d)(1)(ii) and (iii), and 1208.13(d)(1)(ii) and (iii),
however. For (d)(1)(ii) to apply to an alien under the age of 18, that
alien must have filed an asylum application in the United States,
notwithstanding any language barriers or other impediments; thus, there
is no reason to assume categorically that such an alien could not have
filed an application for protection in another country. Consequently,
the Departments find that no age exemption is warranted in 8 CFR
208.13(d)(1)(ii) and 1208.13(d)(1)(ii). Further, as discussed, infra,
there is no reason that an alien of any age would need to use
fraudulent documents to enter the United States in order to seek
asylum. Accordingly, no age exemption is warranted in 8 CFR
208.13(d)(1)(iii) and 1208.13(d)(1)(iii). Even without age exemptions,
the Departments note that these discretionary factors do not constitute
bars to asylum and that adjudicators may appropriately consider an
applicant's age in assessing whether a particular application warrants
being granted as a matter of discretion.
Fourth, in response to commenters' concerns about the applicable
effective date of the frivolousness provisions in 8 CFR 208.20 and
1208.20, the Departments have clarified the language in those
provisions. The amendments to those provisions provided in this rule
apply only to asylum applications filed on or after the effective date
of the rule. The current definition of ``frivolousness'' will continue
to apply to asylum applications filed between April 1, 1997, and the
effective date of the rule.
Fifth, to avoid confusion and potential conflict between the
proposed language of 8 CFR 208.20(b) and 1208.20(b) and 8 CFR 208.20(d)
and 1208.20(d), the Departments are deleting language in the former
regarding an alien's opportunity to account for issues with a claim.
The intent of the NPRM, expressed unequivocally in the proposed
addition of 8 CFR 208.20(d) and 1208.20(d), was clear that adjudicators
would not be required to provide ``multiple opportunities for an alien
to disavow or explain a knowingly frivolous application.'' 85 FR at
36276. The Departments inadvertently retained language from the current
rule in the proposed additions of 8 CFR 208.20(b) and 1208.20(b),
however, that was in tension with that intent. Compare, e.g., 8 CFR
208.20(b) (proposed) (``Such finding [of frivolousness] will only be
made if the asylum officer is satisfied that the applicant has had
sufficient opportunity to account for any discrepancies or implausible
aspects of the claim.''), with 8 CFR 208.20(d) (proposed) (``If the
alien has been provided the warning required by section 208(d)(4)(A) of
the Act, he or she need not be given any additional or further
opportunity to account for any issues with his or her claim prior to
the entry of a frivolous finding.''). Accordingly, in the final rule,
the Departments are deleting the sentence from 8 CFR 208.20(b) and
1208.20(b) regarding an alien's opportunity to address issues with his
or her claim after receiving the statutory warning regarding the
knowing filing of a frivolous asylum application to avoid any residual
confusion on the point.
The following discussion describes the provisions of the final
rule, which are substantially the same as the NPRM, and also
incorporates the changes made in the final rule summarized above.
C. Provisions of the Final Rule
1. Expedited Removal and Screenings in the Credible Fear Process
1.1. Asylum-and-Withholding-Only Proceedings for Aliens With Credible
Fear
DOJ is amending 8 CFR 1003.1, 8 CFR 1003.42(f), 8 CFR 1208.2, 8 CFR
1208.30, and 8 CFR 1235.6--and DHS is amending 8 CFR 208.2(c), 8 CFR
208.30(e)(5) and (f), and 8 CFR 235.6(a)(1)--so that aliens who
establish a credible fear of persecution, a reasonable possibility of
persecution, or a reasonable possibility of torture and accordingly
receive a positive fear determination would appear before an
immigration judge for ``asylum-and-withholding-only'' proceedings under
8 CFR 208.2(c)(1) and 8 CFR 1208.2(c)(1). Such proceedings would be
adjudicated in the same manner that currently applies to certain alien
crewmembers, stowaways, and applicants for admission under the Visa
Waiver Program, among other categories of aliens who are not entitled
by statute to proceedings under section 240 of the Act, 8 U.S.C. 1229a.
See 8 CFR 208.2(c)(1)(i)-(viii), 1208.2(c)(1)(i)-(viii).\4\
Additionally, to ensure that these claims receive the most expeditious
consideration possible, the Departments are amending 8 CFR 208.5 and 8
CFR 1208.5 to require DHS to make available appropriate applications
and relevant warnings to aliens in its custody who have expressed a
fear in the expedited removal process and received a positive
determination. The Departments believe that this change would bring the
proceedings in line with the statutory objective that the expedited
removal process be streamlined and efficient.
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\4\ In addition, DOJ proposed a technical correction to 8 CFR
1003.1(b), which establishes the jurisdiction of the BIA, to correct
the reference to 8 CFR 1208.2 in paragraph (b)(9) and ensure that
the regulations accurately authorize BIA review in ``asylum-and-
withholding-only'' proceedings.
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[[Page 80277]]
1.2. Consideration of Precedent in Credible Fear Determinations
DOJ is adding language to 8 CFR 1003.42(f) to specify that an
immigration judge will consider applicable legal precedent when
reviewing a negative fear determination. This instruction would be in
addition to those currently listed in 8 CFR 1003.42 to consider the
credibility of the alien's statements and other facts of which the
immigration judge is aware. These changes would codify in the
regulations the current practice and provide a clear requirement to
immigration judges that they must consider and apply all applicable
law, including administrative precedent from the Board of Immigration
Appeals (``BIA''), decisions of the Attorney General, decisions of the
Federal courts of appeals binding in the jurisdiction where the
immigration judge conducting the review sits, and decisions of the
Supreme Court.
1.3. Remove and Reserve DHS-Specific Procedures From DOJ Regulations
DOJ is removing and reserving the following provisions in chapter V
of 8 CFR: 8 CFR 1235.1, 8 CFR 1235.2, 8 CFR 1235.3, and 8 CFR 1235.5.
When the Department first incorporated part 235 into 1235, it stated
that ``nearly all of the provisions * * * affect bond hearings before
immigration judges.'' Aliens and Nationality; Homeland Security;
Reorganization of Regulations, 68 FR 9823, 9826 (Feb. 28, 2003). Upon
further review, the Department determined that these sections regard
procedures that are specific to DHS's examinations of applicants for
admission as set forth in 8 CFR 235.1, 8 CFR 235.2, 8 CFR 235.3, and 8
CFR 235.5, and do not need to be duplicated in the regulations for EOIR
in Chapter V, except for the provisions in 8 CFR 1235.4, relating to
the withdrawal of an application for admission, and 8 CFR 1235.6,
relating to the referral of cases to an immigration judge.
In comparison to the NPRM, this final rule is making an additional
technical amendment by updating the outdated reference to ``the
Service'' in 8 CFR 1235.6(a)(1)(ii) to read ``DHS.''
1.4. Reasonable Possibility Standard for Statutory Withholding of
Removal and Torture-Related Fear Determinations
The Departments are amending 8 CFR 208.30 and 8 CFR 1208.30 to
clarify and raise the statutory withholding of removal screening
standard and the torture-related screening standard under the CAT
regulations for aliens in expedited removal proceedings and stowaways.
Specifically, the Departments are amending 8 CFR 208.30 and 8 CFR
1208.30 to raise the standard of proof in credible fear screenings from
a significant possibility that the alien can establish eligibility for
statutory withholding of removal to a reasonable possibility that the
alien would be persecuted because of his or her race, religion,
nationality, membership in a particular social group, or political
opinion. See 8 CFR 208.16, 208.30(e)(2), 1208.16. Similarly, for aliens
expressing a fear of torture, the Departments are amending 8 CFR 208.30
and 8 CFR 1208.30 to raise the standard of proof from a significant
possibility that the alien is eligible for withholding or deferral of
removal under the CAT regulations to a reasonable possibility that the
alien would be tortured in the country of removal. See 8 CFR 208.18(a),
208.30(e)(3), 1208.18(a); 85 FR at 36268. Consistent with INA
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), the asylum eligibility
screening standard (a significant possibility that the alien could
establish eligibility for asylum) currently applied in credible fear
screenings remains unchanged. See INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). By clarifying and applying the ``reasonable
possibility'' standard to the statutory withholding of removal
screening and the torture-related screening under the CAT regulations,
the alien's screening burdens would become adequately analogous to the
merits burdens, where the alien's burdens for statutory withholding of
removal and protections under the CAT regulations are higher than the
burden for asylum.
The Departments are also amending 8 CFR 208.30, 8 CFR 1208.30, and
8 CFR 1003.42 to refer to the screenings of aliens in expedited removal
proceedings and of stowaways for statutory withholding of removal as
``reasonable possibility of persecution'' determinations and the
screening for withholding and deferral of removal under the CAT
regulations as ``reasonable possibility of torture'' determinations, in
order to avoid confusion between the different standards of proof.
In conjunction with the edits to DHS's regulation in 8 CFR 208.30,
DOJ is amending 8 CFR 1208.30. Currently, after an asylum officer
determines that an alien lacks a credible fear of persecution or
torture, the regulation provides that an immigration judge in EOIR
reviews that determination under the credible fear (``significant
possibility'') standard. 8 CFR 208.30(g), 1208.30(g). DHS's
``reasonable possibility'' screening standard for statutory withholding
of removal and CAT protection claims is a mismatch with EOIR's current
regulation, which does not provide for a reasonable possibility review
process in the expedited removal context. Therefore, DOJ is modifying 8
CFR 1208.30(g) to clarify that credible fear of persecution
determinations (i.e., screening for asylum eligibility) would continue
to be reviewed under a ``credible fear'' (significant possibility)
standard, but screening determinations for eligibility for statutory
withholding of removal and protection under the CAT regulations would
be reviewed under a ``reasonable possibility'' standard.
Additionally, to clarify terminology in 8 CFR 208.30(d)(2), mention
of the Form M-444, Information about Credible Fear Interview in
Expedited Removal Cases, is replaced with mention of relevant
information regarding the ``fear determination process.'' This change
clarifies that DHS may relay information regarding screening for a
reasonable possibility of persecution and a reasonable possibility of
torture, in addition to a credible fear of persecution.
DHS is also revising the language in 8 CFR 208.30(e)(1) to
interpret the ``significant possibility'' standard that Congress
established in section 235(b)(1)(B)(v) of the Act, 8 U.S.C.
1225(b)(1)(B)(v).
In comparison to the NPRM, this final rule is correcting a
typographical error--i.e. ``part'' rather than ``party''--in 8 CFR
208.30(e)(2)(ii). The sentence now reads: ``Such other facts as are
known to the officer, including whether the alien could avoid a future
threat to his or her life or freedom by relocating to another part of
the proposed country of removal and, under all circumstances, it would
be reasonable to expect the applicant to do so[.]'' In addition, this
final rule adds the word ``for'' to correct the form name ``Application
for Asylum and for Withholding of Removal'' at 8 CFR
1208.30(g)(2)(iv)(B). This final rule also reinserts language allowing
DHS to reconsider a negative credible fear finding that has been
concurred upon by an immigration judge after providing notice of its
reconsideration to the immigration judge, which was inadvertently
removed from 8 CFR 1208.30(g)(2)(iv)(A) in the NPRM. The final rule
reinserts that language in 8 CFR 208.30(g)(2)(i) because it pertains to
a DHS procedure and, thus, appropriately belongs in chapter I, rather
than chapter V, of title 8.
[[Page 80278]]
1.5. Amendments to the Credible Fear Screening Process
The Departments further amend 8 CFR 208.30, 8 CFR 1208.30, and 8
CFR 1003.42 to make several additional technical and substantive
amendments regarding fear interviews, determinations, and reviews of
determinations. The Departments amend 8 CFR 208.30(a) and 8 CFR
1208.30(a) to clearly state that the respective sections describe the
exclusive procedures applicable to applicants for admission who are
found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the
Act, 8 U.S.C. 1182(a)(6)(C) or 1182(a)(7), and receive ``credible
fear'' interviews, determinations, and reviews under section
235(b)(1)(B) of the Act, 8 U.S.C. 1225(b)(1)(B).
DHS is clarifying the existing ``credible fear'' screening process
in 8 CFR 208.30(b), which states that if an alien subject to expedited
removal indicates an intention to apply for asylum or expresses a fear
of persecution or torture, or a fear of return, an inspecting officer
shall not proceed further with removal until the alien has been
referred for an interview with an asylum officer, as provided in
section 235(b)(1)(A)(ii) of the Act, 8 U.S.C. 1225(b)(1)(A)(ii). The
rule also states that the asylum officer would screen the alien for a
credible fear of persecution and, as appropriate, a reasonable
possibility of persecution and a reasonable possibility of torture, and
conduct an evaluation and determination in accordance with 8 CFR
208.9(c), which is consistent with current policy and practice. These
proposals aim to provide greater transparency and clarity with regard
to fear screenings.
DHS is also including consideration of internal relocation in the
context of 8 CFR 208.30(e)(1)-(3), which outline the procedures for
determining whether aliens have a credible fear of persecution, a
reasonable possibility of persecution, and a reasonable possibility of
torture. Considering internal relocation in the ``credible fear''
screening context is consistent with existing policy and practice, and
the regulations addressing internal relocation at 8 CFR
208.16(c)(3)(ii) and 8 CFR 1208.16(c)(3)(ii) (protection under the CAT
regulations); 8 CFR 208.13(b)(1)(i)(B) and 8 CFR 1208.13(b)(1)(i)(B)
(asylum); and 8 CFR 208.16(b)(1)(i)(B) and 8 CFR 1208.16(b)(1)(i)(B)
(statutory withholding). The regulatory standard that governs
consideration of internal relocation in the context of asylum and
statutory withholding of removal adjudications is different from the
standard that considers internal relocation in the context of
protection under the CAT regulations. See generally Maldonado v. Lynch,
786 F.3d 1155, 1163 (9th Cir. 2015) (noting the marked difference
between the asylum and CAT regulations concerning internal relocation).
In addition, the Departments are adding asylum and statutory
withholding eligibility bar considerations in 8 CFR 208.30(e)(1)(iii)
and (e)(2)(iii), and 8 CFR 1003.42(d). Currently, 8 CFR 208.30(e)(5)(i)
provides that if an alien, other than a stowaway, is able to establish
a credible fear of persecution or torture but also appears to be
subject to one or more of the mandatory eligibility bars to asylum or
statutory withholding of removal, then the alien will be placed in
section 240 proceedings. The Departments are amending 8 CFR 208.30 to
apply mandatory bars to applying for or being granted asylum at the
credible fear screening stage for aliens in expedited removal
proceedings and for stowaways, such that if a mandatory bar to applying
for or being granted asylum applies, the alien would be unable to show
a significant possibility of establishing eligibility for asylum. In 8
CFR 208.30(e)(5), DHS requires asylum officers to determine (1) whether
an alien is subject to one or more of the mandatory bars to being able
to apply for asylum under section 208(a)(2)(B)-(D) of the Act, 8 U.S.C.
1158(a)(2)(B)-(D), or the bars to asylum eligibility under section
208(b)(2) of the Act, 8 U.S.C. 1158(b)(2), including any eligibility
bars established by regulation under section 208(b)(2)(C) of the Act, 8
U.S.C. 1158(b)(2)(C); and (2) if so, whether the bar at issue is also a
bar to statutory withholding of removal and withholding of removal
under the CAT regulations. If a mandatory bar to asylum applies, the
alien will then be screened only for statutory withholding of removal
or withholding or deferral of removal under the CAT regulations. If the
alien is subject to a mandatory bar to asylum that is also a mandatory
bar to statutory withholding of removal, then the alien will be
screened only for deferral of removal under the CAT regulations. An
alien who could establish a credible fear of persecution or reasonable
possibility of persecution but for the fact that he or she is subject
to one of the bars that applies to both asylum and statutory
withholding of removal would receive a negative fear determination,
unless the alien could establish a reasonable possibility of torture,
in which case he or she would be referred to the immigration court for
asylum-and-withholding-only proceedings. In those proceedings, the
alien would have the opportunity to raise whether he or she was
correctly identified as being subject to the bar(s) to asylum and
withholding of removal and also pursue protection under the CAT
regulations.
Additionally, under 8 CFR 208.30(e)(5), DHS has used a ``reasonable
fear'' standard (identical to the ``reasonable possibility'' standard
enunciated in this rule) in procedures related to aliens barred from
asylum under two interim final rules issued by the Departments,\5\ as
described in 8 CFR
[[Page 80279]]
208.13(c)(3)-(4). The Departments include technical edits in 8 CFR
208.30(e)(5), to change ``reasonable fear'' to ``reasonable
possibility'' to align the terminology with the other proposed changes
in this rule. Similarly, DOJ makes technical edits in 8 CFR
1208.30(g)(1) and 8 CFR 1003.42(d)--both of which refer to the
``reasonable fear'' standard in the current version of 8 CFR
208.30(e)(5)--to change the ``reasonable fear'' language to
``reasonable possibility.'' These edits are purely technical and would
not amend, alter, or impact the standard of proof applicable to the
fear screening process and determinations, or review of such
determinations, associated with the aforementioned bars.
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\5\ On July 16, 2019, the Departments issued an interim final
rule providing that certain aliens described in 8 CFR 208.13(c)(4)
or 1208.13(c)(4) who enter, attempt to enter, or arrive in the
United States across the southern land border on or after such date,
after transiting through at least one country outside the alien's
country of citizenship, nationality, or last lawful habitual
residence en route to the United States, will be found ineligible
for asylum (and, because they are subject to this bar, not be able
to establish a credible fear of persecution) unless they qualify for
certain exceptions. See Asylum Eligibility and Procedural
Modifications, 84 FR 33829 (July 16, 2019). On July 24, 2019, the
U.S. District Court for the Northern District of California enjoined
the Departments ``from taking any action continuing to implement the
Rule'' and ordered the Departments ``to return to the pre-Rule
practices for processing asylum applications.'' E. Bay Sanctuary
Covenant v. Barr, 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019). On
August 16, 2019, the U.S. Court of Appeals for the Ninth Circuit
issued a partial stay of the preliminary injunction so that the
injunction remained in force only in the Ninth Circuit. E. Bay
Sanctuary Covenant v. Barr, 934 F.3d 1026, 1028 (9th Cir. 2019). On
September 9, 2019, the district court then reinstated the nationwide
scope of the injunction. E. Bay Sanctuary Covenant v. Barr, 391 F.
Supp. 3d 974 (N.D. Cal. 2019). Two days later, the Supreme Court
stayed the district court's injunction. Barr v. East Bay Sanctuary
Covenant, 140 S. Ct. 3 (2019). On July 6, 2020, the Ninth Circuit
affirmed the district court's injunction. E. Bay Sanctuary Covenant
v. Barr, 964 F.3d 832 (9th Cir. 2020). Additionally, on June 30,
2020, the interim final rule was vacated by the D.C. District Court
in Capital Area Immigrants' Rights (``CAIR'') Coalition, et al. v.
Trump, 19-cv-02117 (D.D.C. 2020) and I.A., et al. v. Barr, 19-cv-
2530 (D.D.C. 2020).
On November 9, 2018, the Departments issued an interim final
rule providing that certain aliens described in 8 CFR 208.13(c)(3)
or 8 CFR 1208.13(c)(3) who entered the United States in
contravention of a covered Presidential proclamation or order are
barred from eligibility for asylum. See Aliens Subject to a Bar on
Entry Under Certain Presidential Proclamations; Procedures for
Protection Claims, 83 FR 55934 (Nov. 9, 2018). On December 19, 2018,
the U.S. District Court for the Northern District of California
enjoined the Departments ``from taking any action continuing to
implement the Rule'' and ordered the Departments ``to return to the
pre-Rule practices for processing asylum applications.'' E. Bay
Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1121 (N.D. Cal.
2018). On February 28, 2020, the U.S. Court of Appeals for the Ninth
Circuit affirmed the injunction. E. Bay Sanctuary Covenant v. Trump,
950 F.3d 1242, 1284 (9th Cir. 2020). The Departments in this rule do
not make any amendments that would implement the rules at issue in
the aforementioned cases.
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Additionally, in 8 CFR 208.2(c)(1), 8 CFR 1208.2(c)(1), 8 CFR
235.6(a)(2), and 8 CFR 1235.6(a)(2), the Departments include technical
edits to replace the term ``credible fear of persecution or torture''
with ``a credible fear of persecution, reasonable possibility of
persecution, or reasonable possibility of torture'' to mirror the
terminology used in proposed 8 CFR 208.30 and 8 CFR 1208.30. Moreover,
in 8 CFR 1208.30(g)(2)(iv)(C), DOJ makes a technical edit to clarify
that stowaways barred from asylum and both statutory and CAT
withholding of removal may still be eligible for deferral of removal
under the CAT regulations.
The Departments further amend 8 CFR 208.30(g) and 8 CFR
1208.30(g)(2), which address procedures for negative fear
determinations for aliens in the expedited removal process. In 8 CFR
208.30(g)(1), the Departments treat an alien's refusal to indicate
whether he or she desires review by an immigration judge as declining
to request such review. Also, in 8 CFR 208.31, the Departments treat a
refusal as declining to request review within the context of reasonable
fear determinations.
In comparison to the NPRM, this final rule adds the word ``for'' to
correct the form name to ``Application for Asylum and for Withholding
of Removal'' at 8 CFR 208.31(g)(2) and 1208.31(g)(2). This final rule
also reinserts language concerning novel or unique issues in 8 CFR
208.30(e)(4) that was inadvertently proposed to be removed in the NPRM,
with modifications to account for changes in terminology adopted via
this final rule. The language now reads: ``In determining whether the
alien has a credible fear of persecution, as defined in section
235(b)(1)(B)(v) of the Act, or a reasonable possibility of persecution
or torture, the asylum officer shall consider whether the alien's case
presents novel or unique issues that merit consideration in a full
hearing before an immigration judge.'' Also, this final rule removes
one sentence from the proposed 8 CFR 208.30(e)(4)--``An asylum
officer's determination will not become final until reviewed by a
supervisory asylum officer''--because similar text already exists in 8
CFR 208.30(e)(8) and it would be repetitive to include it in 8 CFR
208.30(e)(4).
2. Amendments Related to the Filing Requirements and Elements for
Consideration of Form I-589, Application for Asylum and for Withholding
of Removal
2.1. Frivolous Applications
The Departments amend both 8 CFR 208.20 and 1208.20 regarding
determinations that an asylum application is frivolous. See INA
208(d)(6), 8 U.S.C. 1158(d)(6) (providing that an alien found to have
``knowingly made a frivolous application for asylum'' is ``permanently
ineligible for any benefits'' under the Act). The Departments propose
the new standards in order to ensure that manifestly unfounded or
otherwise abusive claims are rooted out and to ensure that meritorious
claims are adjudicated more efficiently so that deserving applicants
receive benefits in a timely fashion.
The Departments clarify the meaning of ``knowingly'' by providing
that ``knowingly'' requires either actual knowledge of the
frivolousness or willful blindness toward it. 8 CFR 208.20(a)(2),
1208.20(a)(2). The Departments also amend the definition of
``frivolous.'' 8 CFR 208.20, 208.20(c)(1)-(4), 1208.20, 1208.20(c)(1)-
(4). Under the new definition, if knowingly made, an asylum application
would be properly considered frivolous if the adjudicator were to
determine that it included a fabricated material element; that it was
premised on false or fabricated evidence; that it was filed without
regard to the merits of the claim; or that it was clearly foreclosed by
applicable law. The definition aligns with the Departments' prior
understandings of frivolous applications, including applications that
are clearly unfounded, abusive, or involve fraud, and the Departments
believe the definition would better effectuate the intent of section
208(d)(6) of the Act, 8 U.S.C. 1158(d)(6), to discourage applications
that make patently meritless or false claims.
In addition, the Departments allow asylum officers adjudicating
affirmative asylum applications to make findings that aliens have
knowingly filed frivolous asylum applications and to refer the cases on
that basis to immigration judges (for aliens not in lawful status) or
to deny the applications (for aliens in lawful status). 8 CFR
208.20(b), 1208.20(b). For an alien not in lawful status, a finding by
an asylum officer that an asylum application is frivolous would not
render an alien permanently ineligible for immigration benefits unless
an immigration judge or the BIA subsequently makes a finding of
frivolousness upon de novo review of the application. Asylum officers
would apply the same definition used by immigration judges and the BIA
under this rule. Id. This change would allow U.S. Citizenship and
Immigration Services (``USCIS'') to more efficiently root out frivolous
applications, deter frivolous filings, and reduce the number of
frivolous applications in the asylum system. Additionally, an asylum
officer who makes a finding of frivolousness would produce a record on
that issue for an immigration judge to review. Further, the proposed
change is consistent with congressional intent to ``reduce the
likelihood that fraudulent or frivolous applications will enable
deportable or excludable aliens to remain in the U.S. for substantial
periods.'' S. Rep. No. 104-249, at 2 (1996).
The Departments clarify that, as long as the alien has been given
the notice of the consequences of filing a frivolous application, as
required by section 208(d)(4)(A) of the Act, 8 U.S.C. 1158(d)(4)(A),
the adjudicator need not give the alien any additional or further
opportunity to account for any issues prior to the entry of a
frivolousness finding. 8 CFR 208.20(d), 1208.20(d). The Departments
have determined that this provision is sufficient to comply with the
Act's requirements, and that there is no legal or operational
justification for providing additional opportunities to address aspects
of a claim that may warrant a frivolousness finding. The Departments
believe the current regulatory framework, which provides that an EOIR
adjudicator may only make a frivolous finding if he or she ``is
satisfied that the applicant, during the course of the proceedings, has
had sufficient opportunity to account for any discrepancies or
implausible aspects of the claim,'' has not successfully achieved the
Departments' goal of preventing knowingly frivolous applications that
delay the adjudication of other asylum applications that may merit
relief.
As this rule would overrule Matter of Y-L-, 24 I&N Dec. 151 (BIA
2007), and revise the definition of ``frivolous,'' adjudicators would
not be required to
[[Page 80280]]
provide opportunities for applicants to address discrepancies or
implausible aspects of their claims if an applicant had been provided
the warning required by INA 208(d)(4)(A) (8 U.S.C. 1158(d)(4)(A)).
In order to ameliorate the consequences of knowingly filing a
frivolous application in appropriate cases, however, the Departments
include a mechanism that would allow certain aliens in removal
proceedings to withdraw, with prejudice, their applications by
disclaiming the applications; accepting an order of voluntary departure
for a period of no more than 30 days; withdrawing, also with prejudice,
all other applications for relief or protection; and waiving any rights
to file an appeal, motion to reopen, and motion to reconsider. 8 CFR
208.20(f), 1208.20(f). In such instances, the aliens would not be
subject to a frivolousness finding and could avoid the penalties
associated with such a finding. In addition, the regulation does not
change current regulatory language that makes clear that a
frivolousness finding does not bar an alien from seeking statutory
withholding of removal or protection under the CAT regulations.
Finally, the Departments clarify that an application may be found
frivolous even if the application was untimely. 8 CFR 208.20(e),
1208.20(e).
In comparison to the NPRM, this final rule updates the
frivolousness language in 8 CFR 208.20 and 8 CFR 1208.20 to further
clarify that the new frivolousness standards only apply prospectively
to applications filed on or after the effective date of this final
rule. This final rule also replaces the word ``essential'' with the
word ``material'' in 8 CFR 208.20(c)(1) and 1208.20(c)(1), consistent
with the stated intent of the NPRM. Finally, to avoid confusion and
potential conflict between the proposed language of 8 CFR 208.20(b) and
1208.20(b) and 8 CFR 208.20(d) and 1208.20(d), this final rule deletes
the following sentence from proposed 8 CFR 208.20(b) and 1208.20(b):
``Such finding will only be made if the asylum officer is satisfied
that the applicant has had sufficient opportunity to account for any
discrepancies or implausible aspects of the claim.''
2.2. Pretermission of Applications
DOJ adds a new paragraph (e) to 8 CFR 1208.13 to clarify that
immigration judges may pretermit and deny an application for asylum,
statutory withholding of removal, or protection under the CAT
regulations if the alien has not established a prima facie claim for
relief or protection under the applicable laws and regulations. See
Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018); see also Matter of A-
B-, 27 I&N Dec. 316, 340 (A.G. 2018) (``Of course, if an alien's asylum
application is fatally flawed in one respect--for example, for failure
to show membership in a proposed social group * * *--an immigration
judge or the Board need not examine the remaining elements of the
asylum claim.''). Other immigration applications are subject to
pretermission when legally insufficient, and the INA and current
regulations do not require asylum to be treated any differently. Such a
decision would be based on the Form I-589 application itself and any
supporting evidence. Under this rule, an immigration judge may
pretermit an asylum application in two circumstances: (1) Following an
oral or written motion by DHS, and (2) sua sponte upon the immigration
judge's own authority. Provided the alien has had an opportunity to
respond, and the immigration judge considers any such response, a
hearing would not be required for the immigration judge to make a
decision to pretermit and deny the application. In the case of the
immigration judge's exercise of his or her own authority, parties would
have at least ten days' notice before the immigration judge would enter
such an order. A similar timeframe would apply if DHS moves to
pretermit, under current practice. See EOIR, Immigration Court Practice
Manual at D-1 (Aug. 2, 2018), https://www.justice.gov/eoir/page/file/1084851/download.
2.3. Particular Social Group
The Departments adopt amendments to codify long-standing standards
from case law regarding the cognizability of particular social groups
and to provide clarity, allow for uniform application, and reduce the
time necessary to evaluate claims involving particular social groups.
These requirements would aid efficient litigation and avoid
gamesmanship and piecemeal litigation.
Specifically, the Departments codify the requirements that (1) a
particular social group must be (a) composed of members who share a
common immutable characteristic, (b) defined with particularity, and
(c) socially distinct in the society in question; (2) the group must
exist independently of the alleged persecutory acts; and (3) the group
must not be defined exclusively by the alleged harm. 8 CFR 208.1(c),
1208.1(c). Additionally, the Departments list nine, non-exhaustive
circumstances that, if a particular social group consisted of or was
defined by, would not generally result in a favorable adjudication. Id.
Further, the Departments adopt several procedural requirements
regarding the alien's responsibility to define the particular social
group. Id.
In comparison to the NPRM, this final rule amends the waiver
provision in 8 CFR 208.1(c) and 1208.1(c) related to claims of
ineffective assistance of counsel based on a failure to define, or
provide a basis for defining, a formulation of a particular social
group before an immigration judge to provide an exception for egregious
conduct on the part of counsel. The Departments believe that cognizable
ineffective assistance of counsel claims in the context of failing to
assert a particular social group should be extremely rare.
Nevertheless, the Departments recognize there may be unique situations
in which ``egregious conduct'' on the part of counsel may warrant
reopening in this context, provided that appropriate procedural
requirements for such a claim are observed.
2.4. Political Opinion
The Departments adopt amendments to define ``political opinion''
and provide other guidance for adjudicators regarding applications for
asylum or statutory withholding of removal premised on the applicant's
political opinion. These amendments would provide additional clarity
for adjudicators and better align the regulations with statutory
requirements and general understanding that a political opinion is
intended to advance or further a discrete cause related to political
control of the state.
Specifically, the Departments define ``political opinion'' for the
purposes of applications for asylum or for statutory withholding of
removal as an opinion expressed by or imputed to an applicant in which
the applicant possesses an ideal or conviction in support of the
furtherance of a discrete cause related to political control of a state
or a unit thereof. 8 CFR 208.1(d), 1208.1(d). Additionally, the
Departments adopt a list of potential definitional bases for a
political opinion that would not, in general, support a favorable
adjudication: A political opinion defined solely by generalized
disapproval of, disagreement with, or opposition to criminal,
terrorist, gang, guerilla, or other non-state organizations absent
expressive behavior in furtherance of a cause against such
organizations related to efforts by the state to control such
organizations or behavior that is antithetical to or otherwise opposes
the ruling legal entity of the state or a legal sub-unit of the state.
Id. Finally, consistent with section 101(a)(42) of the Act, 8 U.S.C.
[[Page 80281]]
1101(a)(42), the Departments provide that a person who has been forced
to abort a pregnancy or to undergo involuntary sterilization, or who
has been persecuted for failure or refusal to undergo such a procedure
or for other resistance to a coercive population control program, would
be deemed to have been persecuted on account of political opinion, and
a person who has a well-founded fear that he or she will be forced to
undergo such a procedure or be subject to persecution for such failure,
refusal, or resistance would be deemed to have a well-founded fear of
persecution on account of political opinion. Id.
2.5. Persecution Definition
Given the wide range of cases interpreting ``persecution'' for the
purposes of the asylum laws, the Departments are adding a new paragraph
to 8 CFR 208.1 and 1208.1 to define ``persecution'' and to better
clarify what does and does not constitute persecution given the extreme
and severe nature of harm required. The Departments believe that these
changes would better align the relevant regulations with the high
standard Congress intended for the term ``persecution.'' See Fatin v.
INS, 12 F.3d 1233, 1240 n.10, 1243 (3d Cir. 1993).
Specifically, this rule provides that persecution requires ``an
intent to target a belief or characteristic, a severe level of harm,
and the infliction of a severe level of harm by the government of a
country or by persons or an organization that the government was unable
or unwilling to control.'' 8 CFR 208.1(e), 1208.1(e). The Departments
further clarify that persecution does not include, for example: (1)
Every instance of harm that arises generally out of civil, criminal, or
military strife in a country; (2) any and all treatment that the United
States regards as unfair, offensive, unjust, or even unlawful or
unconstitutional; (3) intermittent harassment, including brief
detentions; (4) threats with no actions taken to carry out the threats;
(5) non-severe economic harm or property damage; or (6) government laws
or policies that are infrequently enforced, unless there is credible
evidence that those laws or policies have been or likely would be
applied to an applicant personally. See id.
In comparison to the NPRM, this final rule amends the language in 8
CFR 208.1(e) and 1208.1(e) regarding when threats alone may constitute
persecution to clarify that particularized threats of severe harm of an
immediate and menacing nature made by an identified entity may
constitute persecution. The Departments expect that such cases will be
rare. See, e.g., Duran-Rodriguez v. Barr, 918 F.3d at 1028 (explaining
that ``death threats alone can constitute persecution'' but
``constitute persecution in only a small category of cases, and only
when the threats are so menacing as to cause significant actual
suffering or harm'' (quotation marks and citation omitted)).
2.6. Nexus
The Departments add paragraph (f) to both 8 CFR 208.1 and 1208.1 to
provide clearer guidance on situations in which alleged acts of
persecution would not be on account of one of the five protected
grounds. This proposal would further the expeditious consideration of
asylum and statutory withholding claims by bringing clarity and
uniformity to this issue.
Specifically, the Departments are adopting the following eight non-
exhaustive circumstances, each of which is rooted in case law, that
would not generally support a favorable adjudication of an application
for asylum or statutory withholding of removal due to the applicant's
inability to demonstrate persecution on account of a protected ground:
(1) Interpersonal animus or retribution; (2) interpersonal animus in
which the alleged persecutor has not targeted, or manifested an animus
against, other members of an alleged particular social group in
addition to the member who has raised the claim at issue; (3)
generalized disapproval of, disagreement with, or opposition to
criminal, terrorist, gang, guerilla, or other non-state organizations
absent expressive behavior in furtherance of a discrete cause against
such organizations related to control of a state or expressive behavior
that is antithetical to the state or a legal unit of the state; (4)
resistance to recruitment or coercion by guerilla, criminal, gang,
terrorist, or other non-state organizations; (5) the targeting of the
applicant for criminal activity for financial gain based on wealth or
affluence or perceptions of wealth or affluence; (6) criminal activity;
(7) perceived, past or present, gang affiliation; and (8) gender. 8 CFR
208.1(f)(1)-(8), 1208.1(f)(1)-(8). At the same time, the regulation
would not foreclose that, at least in rare cases, such circumstances
could be the basis for finding nexus, given the fact-specific nature of
this determination.
2.7. Stereotype Evidence
In order to make clear that pernicious cultural stereotypes have no
place in the adjudication of applications for asylum and statutory
withholding of removal, regardless of the basis of the claim, the
Departments bar consideration of evidence promoting cultural
stereotypes of countries or individuals, including stereotypes related
to race, religion, nationality, and gender, to the extent those
stereotypes are offered in support of an alien's claim. 8 CFR 208.1(g),
1208.1(g).
In comparison to the NPRM, the final rule clarifies the language in
8 CFR 208.1(g) and 1208.1(g) to alleviate apparent confusion and
improve consistency with the intent of the NPRM regarding the use of
stereotypes as an evidentiary basis for an asylum claim. In the final
rule, bald statements that a country or its denizens have a particular
cultural trait that causes citizens, nationals, or residents of that
country to engage in persecution is evidence lacking in probative value
and has no place in an adjudication.
2.8. Internal Relocation
The Departments are adopting amendments to 8 CFR 208.13(b)(3),
208.16(b)(3), 1208.13(b)(3), and 1208.16(b)(3) regarding the
reasonableness of internal relocation because the Departments
determined that the current regulations inadequately assess the
relevant considerations in determining whether internal relocation is
possible, and if possible, whether it is reasonable to expect the
asylum applicant to relocate. The Departments adopt a more streamlined
presentation in the regulations of the most relevant factors for
adjudicators to consider in determining whether internal relocation is
a reasonable option. This clarification would assist adjudicators in
making more efficient adjudications and would bring the regulatory
burdens of proof in line with baseline assessments of whether types of
persecution generally occur nationwide.
Specifically, the Departments amend the general guidelines
regarding determinations of the reasonableness of internal relocation
to specify that adjudicators should consider the totality of the
circumstances. 8 CFR 208.13(b)(3), 1208.13(b)(3). In addition, the
Departments amend the list of considerations for adjudicators
including, inter alia, an instruction that adjudicators consider ``the
applicant's demonstrated ability to relocate to the United States in
order to apply for asylum.'' Id. The Departments also adopt a
presumption that for applications in which the persecutor is not a
government or government-sponsored actor, internal relocation would be
reasonable unless the applicant demonstrates by a
[[Page 80282]]
preponderance of the evidence that it would not be. 8 CFR
208.13(b)(3)(iii), 1208.13(b)(3)(iii). This presumption would apply
regardless of whether an applicant has established past persecution.
For ease of administering these provisions, the Departments also
provide examples of the types of individuals or entities who are
private actors. 8 CFR 208.13(b)(3)(iv), 1208.13(b)(3)(iv).\6\
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\6\ Because the issue of internal relocation arises in the
context of applications for both asylum and statutory withholding of
removal, the Departments are amending the relevant regulations
related to applications for statutory withholding of removal for the
same reasons discussed herein they are amending the regulations
related to asylum applications. See 8 CFR 208.16(b)(3) and
1208.16(b)(3).
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2.9. Discretionary Factors
Asylum is a discretionary form of relief, and the Departments
provide general guidelines on factors for adjudicators to consider when
determining whether or not an alien merits the relief of asylum as a
matter of discretion. 8 CFR 208.13(d), 1208.13(d). Specifically, the
Departments provide three factors that adjudicators must consider when
determining whether an applicant merits the relief of asylum as a
matter of discretion: (1) An alien's unlawful entry or unlawful
attempted entry into the United States unless such entry or attempted
entry was made in immediate flight from persecution or torture in a
contiguous country; (2) subject to certain exceptions, the failure of
an alien to seek asylum or refugee protection in at least one country
through which the alien transited before entering the United States;
and (3) an alien's use of fraudulent documents to enter the United
States, unless the alien arrived in the United States by air, sea, or
land directly from the applicant's home country without transiting
through any other country. 8 CFR 208.13(d)(1), 1208.13(d)(1). The
adjudicator must consider all three factors, if relevant, during every
asylum adjudication. If one or more of these factors were found to
apply to the applicant's case, the adjudicator would consider such
factors to be significantly adverse for purposes of the discretionary
determination, though the adjudicator should also consider any other
relevant facts and circumstances to determine whether the applicant
merits asylum as a matter of discretion.
In addition, the Departments provide nine additional adverse
factors that, if applicable, would ordinarily result in the denial of
asylum as a matter of discretion. 8 CFR 208.13(d)(2)(i),
1208.13(d)(2)(i). Specifically, the Departments list the following
factors for the adjudicator to consider: (1) Whether an alien has spent
more than 14 days in any one country that permitted application for
refugee, asylee, or similar protections prior to entering or arriving
in the United States, 8 CFR 208.13(d)(2)(i)(A), 1208.13(d)(2)(i)(A);
\7\ (2) whether the alien transited through more than one country prior
to arrival in the United States, 8 CFR 208.13(d)(2)(i)(B),
1208.13(d)(2)(i)(B); \8\ (3) whether the applicant would be subject to
a mandatory asylum application denial under 8 CFR 208.13(c), 1208.13(c)
but for the reversal, vacatur, expungement, or modification of a
conviction or sentence unless the alien was found not guilty, 8 CFR
208.13(d)(2)(i)(C) 1208.13(d)(2)(i)(C); (4) whether the applicant has
accrued more than one year of unlawful presence in the United States
prior to filing an application for asylum, 8 CFR 208.13(d)(2)(i)(D),
1208.13(d)(2)(i)(D); (5) whether the applicant, at the time he or she
filed the asylum application, had failed to timely file or to timely
file an extension request of any required Federal, state, or local tax
returns; failed to satisfy any outstanding Federal, state, or local tax
obligations; or has income that would generate tax liability but that
has not been reported to the Internal Revenue Service, 8 CFR
208.13(d)(2)(i)(E), 1208.13(d)(2)(i)(E); (6) whether the applicant has
had two or more prior asylum applications denied for any reason, 8 CFR
208.13(d)(2)(i)(F), 1208.13(d)(2)(i)(F); (7) whether the applicant has
previously withdrawn an asylum application with prejudice or been found
to have abandoned an asylum application, 8 CFR 208.13(d)(2)(i)(G),
1208.13(d)(2)(i)(G); (8) whether the applicant previously failed to
attend an interview with DHS regarding his or her application, 8 CFR
208.13(d)(2)(i)(H), 1208.13(d)(2)(i)(H); \9\ and (9) whether the
applicant was subject to a final order of removal, deportation, or
exclusion and did not file a motion to reopen within one year of the
change in country conditions, 8 CFR 208.13(d)(2)(i)(I),
1208.13(d)(2)(i)(I); see also INA 240(c)(7)(C)(ii), 8 U.S.C.
1229a(c)(7)(C)(ii); 8 CFR 1003.2(c)(3)(ii), 1003.23(b)(4)(i).
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\7\ The Departments, however, provided exceptions for aliens who
demonstrate that (1) they applied for and were denied protection in
such country, (2) they are a trafficking victim as set out as 8 CFR
214.11, or (3) such country was at the time the alien transited not
a party to the 1951 Convention relating to the Status of Refugees,
the 1967 Protocol relating to the Status of Refugees, or the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. 8 CFR 208.13(d)(2)(i)(A)(1)-(3),
1208.13(d)(2)(i)(A)(1)-(3).
\8\ The Departments, however, provided the same exceptions
described above. See 8 CFR 208.13(d)(2)(i)(B)(1)-(3),
1208.13(d)(2)(i)(B)(1)-(3).
\9\ The Departments included exceptions if the alien shows by
the preponderance of the evidence that either exceptional
circumstances prevented the alien from attending the interview or
that the interview notice was not mailed to the last address
provided by the alien or the alien's representative and neither the
alien nor the alien's representative received notice of the
interview. 8 CFR 208.13(d)(2)(i)(H)(1)-(2), 1208.13(d)(2)(i)(H)(1)-
(2).
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This rule provides that if the adjudicator were to determine that
any of these nine circumstances applied during the course of the
discretionary review, the adjudicator may nevertheless favorably
exercise discretion in extraordinary circumstances, such as those
involving national security or foreign policy considerations, or if the
alien demonstrates, by clear and convincing evidence, that the denial
or referral of asylum would result in an exceptional and extremely
unusual hardship to the alien. 8 CFR 208.13(d)(2)(ii),
1208.13(d)(2)(ii).
In comparison to the NPRM, this final rule adds the clarifying
phrase ``as defined in section 212(a)(9)(B)(ii) and (iii) of the Act''
to 8 CFR 208.13(d)(2)(i)(D) and 1208.13(d)(2)(i)(D) consistent with the
intent of the NPRM. In addition, this final rule amends 8 CFR
208.13(d)(1)(i) and 1208.13(d)(1)(i) to reflect that an unlawful or
attempted unlawful entry into the United States by an alien under the
age of 18 will not be considered as a significant adverse discretionary
factor in considering a subsequent asylum application filed by such an
alien. Further, the final rule amends 8 CFR 208.13(d)(2)(ii) to reflect
that, operationally, DHS may refer or deny an asylum application,
depending on the circumstances of the applicant. See 8 CFR 208.14.
2.10. Firm Resettlement
Due to the increased availability of resettlement opportunities and
the interest of those genuinely in fear of persecution in attaining
safety as soon as possible, the Departments revise the definition of
firm resettlement that applies to asylum adjudications at 8 CFR 208.15
and 1208.15.\10\ These
[[Page 80283]]
changes recognize the increased availability of resettlement
opportunities and that an alien fleeing persecution would ordinarily be
expected to seek refuge at the first available opportunity where there
is no fear of persecution or torture. Further, the changes would ensure
that the asylum system is used by those in need of immediate protection
rather than those who chose the United States as their destination for
other reasons and then relied on the asylum system to reach that
destination.
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\10\ As the Departments noted in the proposed rule, 85 FR at
36286 n.41, 43 countries have signed the Refugee Convention since
1990. In particular, resettlement opportunities in Mexico, one of
the most common transit countries for aliens coming to the United
States, have increased significantly in recent years. For example,
the UNHCR has documented a notable increase in asylum and refugee
claims filed in Mexico--even during the ongoing COVID-19 pandemic--
which strongly suggests that Mexico is an appropriate option for
seeking refuge for those genuinely fleeing persecution. See, e.g.,
Shabia Mantoo, Despite pandemic restrictions, people fleeing
violence and persecution continue to seek asylum in Mexico, U.N.
High Commissioner for Refugees (Apr. 28, 2020), https://www.unhcr.org/en-us/news/briefing/2020/4/5ea7dc144/despite-pandemic-restrictions-people-fleeing-violence-persecution-continue.html
(``While a number of countries throughout Latin America and the rest
of the world have closed their borders and restricted movement to
contain the spread of coronavirus, Mexico has continued to register
new asylum claims from people fleeing brutal violence and
persecution, helping them find safety.''). Asylum and refugee claims
filed in Mexico increased 33 percent in the first three months of
2020 compared to the same period in 2019, averaging almost 6000 per
month. Id. Asylum claims filed in Mexico rose by more than 103
percent in 2018 compared to the previous year. U.N. High
Commissioner for Refugees, Fact Sheet (Apr. 2019), https://reporting.unhcr.org/sites/default/files/UNHCR%20Factsheet%20Mexico%20-%20April%202019.pdf. Overall,
``[a]sylum requests have doubled in Mexico each year since 2015.''
Congressional Research Serv., Mexico's Immigration Control Efforts
(Feb. 19, 2020), https://fas.org/sgp/crs/row/IF10215.pdf. Moreover,
some private organizations acknowledge that asylum claims in Mexico
have recently ``skyrocket[ed],'' that ``Mexico has adopted a broader
refugee definition than the U.S. and grants a higher percentage of
asylum applications,'' and that ``Mexico may offer better options
for certain refugees who cannot find international protection in the
U.S.,'' including for those ``who are deciding where to seek asylum
[i.e. between Mexico and the United States].'' Asylum Access,
Mexican Asylum System for U.S. Immigration Lawyers FAQ (Nov. 2019),
https://asylumaccess.org/wp-content/uploads/2019/11/Mexican-Asylum-FAQ-for-US-Immigration-Lawyers.pdf. Moreover, the Mexican
Constitution was amended in 2011 to include the specific right to
asylum and further amended in 2016 to expand that right. See Mex.
Const. Art. 11 (``Every person has the right to seek and receive
asylum. Recognition of refugee status and the granting of political
asylum will be carried out in accordance with international
treaties. The law will regulate their origins and exceptions.''). In
fact, the grounds for seeking and obtaining refugee status under
Mexican law are broader than the grounds under U.S. law. As in the
United States, individuals in Mexico may seek refugee status as a
result of persecution in their home countries on the basis of race,
religion, nationality, gender, membership in a social group, or
political opinion. Compare 2011 Law for Refugees, Complementary
Protection, and Political Asylum (``LRCPPA''), Art. 13(I), with INA
208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i). However, individuals in
Mexico may also seek refugee status based on ``generalized
violence'' and ``massive violation of human rights.'' See 2011
LRCPPA, Art. 13(II). In short, resettlement opportunities are
unquestionably greater now than when the regulatory definition of
``firm resettlement'' was first implemented, and those changes
warrant revisions to that definition accordingly.
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Specifically, the Departments identify three circumstances under
which an alien would be considered firmly resettled: (1) The alien
resided in a country through which the alien transited prior to
arriving in or entering the United States and (i) received or was
eligible for any permanent legal immigration status in that country,
(ii) resided in such a country with any non-permanent but indefinitely
renewable legal immigration status (including asylee, refugee, or
similar status but excluding status such as of a tourist), or (iii)
resided in such a country and could have applied for and obtained any
non-permanent but indefinitely renewable legal immigration status in
that country; (2) the alien physically resided voluntarily, and without
continuing to suffer persecution, in any one country for one year or
more after departing his country of nationality or last habitual
residence and prior to arrival in or entry into the United States; or
(3) (i) the alien is a citizen of a country other than the one where
the alien alleges a fear of persecution and the alien was present in
that country prior to arriving in the United States, or (ii) the alien
was a citizen of a country other than the one where the alien alleges a
fear of persecution, the alien was present in that country prior to
arriving in the United States, and the alien renounced that citizenship
prior to or after arriving in the United States. 8 CFR 208.15(a)(1)-
(3), 1208.15(a)(1)-(3).
The Departments further provide that the issue of whether the firm
resettlement bar applies arises ``when the evidence of record indicates
that the firm resettlement bar may apply,'' and specifically allows
both DHS and the immigration judge to first raise the issue based on
the record evidence. 8 CFR 208.15(b), 1208.15(b). Finally, the
Departments specify that the firm resettlement of an alien's parent(s)
would be imputed to the alien if the resettlement was prior to the
alien turning 18 and the alien resided with the parents at the time of
the firm resettlement unless the alien could not have derived any legal
immigration status or any nonpermanent legal immigration status that
was potentially indefinitely renewable from the parent. Id.
In comparison to the NPRM, this final rule analyzes the components
of 8 CFR 208.15(a)(1) and 1208.15(a)(1), breaks it into three
subparagraphs, and changes the syntax, all for easier readability and
to avoid confusion. The changes in the final rule are stylistic and do
not reflect an intent to make a substantive change from the NPRM. This
final rule also changes the temporal language in 8 CFR 208.15(a)(3)(i)
and (ii) and 1208.15(a)(3)(i) and (ii) for clarity and consistency with
similar language in 8 CFR 208.15(a)(2) and 1208.15(a)(2). The changes
clarify the relevant temporal scope to read ``after departing his
country of nationality or last habitual residence and prior to arrival
in or entry into the United States'' in lieu of the language in the
NPRM. Finally, as discussed above, the rule corrects a related outdated
statutory cross-reference in 8 CFR 1244.4(b).
2.11. ``Public Officials''
The Departments are revising 8 CFR 208.18(a)(1), (7) and
1208.18(a)(1), (7) to provide further guidance for determining what
sorts of officials constitute ``public officials,'' including whether
an official such as a police officer is a public official for the
purposes of the CAT regulations if he or she acts in violation of
official policy or his or her official status. Specifically, in
comparison to the NPRM, this final rule strikes the parenthetical
phrase ``(``rogue official'')'' in 8 CFR 208.18(a)(1) and
1208.18(a)(1). Relatedly, this final rule replaces the remaining uses
of the phrase ``rogue official'' in 8 CFR 208.16(b)(3)(iv),
208.18(a)(1), and 1208.18(a)(1) with the definition, ``public official
who is not acting under color of law.'' As recently noted by the
Attorney General in Matter of O-F-A-S-, 28 I&N Dec. 35, 38 (A.G. 2020),
``continued use of the `rogue official' language by the immigration
courts going forward risks confusion, not only because it suggests a
different standard from the `under color of law' standard, but also
because `rogue official' has been interpreted to have multiple
meanings.''
In addition, the Departments clarify (1) that pain or suffering
inflicted by, or at the instigation of or with the consent or
acquiescence of, a public official is not torture unless it is done
while the official is acting in his or her official capacity (i.e.,
under ``color of law'') and (2) that pain or suffering inflicted by, or
at the instigation of or with the consent or acquiescence of, a public
official not acting under color of law does not constitute a ``pain or
suffering inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity,'' even if such actions cause pain and suffering that could
rise to the severity of torture. See 8 CFR 208.18(a)(1), 1208.18(a)(1).
This amendment clarifies that the requirement that the individual be
acting in an official capacity applies to
[[Page 80284]]
both a ``public official,'' such as a police officer, and an ``other
person,'' such as an individual deputized to act on the government's
behalf. Id.
The Departments also clarify the definition of ``acquiescence of a
public official'' so that, as several courts of appeals and the BIA
have recognized, ``awareness''--as used in the CAT ``acquiescence''
definition--requires a finding of either actual knowledge or willful
blindness. 8 CFR 208.18(a)(7), 1208.18(a)(7). The Departments further
clarify in this rule that, for purposes of the CAT regulations,
``willful blindness'' means that ``the public official acting in an
official capacity or other person acting in an official capacity was
aware of a high probability of activity constituting torture and
deliberately avoided learning the truth; it is not enough that such
public official acting in an official capacity or other person acting
in an official capacity was mistaken, recklessly disregarded the truth,
or negligently failed to inquire.'' Id.
Additionally, the Departments clarify that acquiescence is not
established by prior awareness of the activity alone, but requires an
omission of an act that the official had a duty to do and was able to
do. 8 CFR 208.18(a)(7), 1208.18(a)(7).
2.12. Information Disclosure
The Departments are making changes to 8 CFR 208.6 and 8 CFR 1208.6
to clarify that information may be disclosed in certain circumstances
that directly relate to the integrity of immigration proceedings,
including situations in which there is suspected fraud or improper
duplication of applications or claims. Specifically, the Departments
provide that to the extent not already specifically permitted, and
without the necessity of seeking the exercise of the Attorney General's
or Secretary's discretion under sections 1208.6(a) and 208.6(a),
respectively, the Government may disclose all relevant and applicable
information in or pertaining to the application for asylum, statutory
withholding of removal, and protection under the CAT regulations as
part of a Federal or state investigation, proceeding, or prosecution;
as a defense to any legal action relating to the alien's immigration or
custody status; during an adjudication of the application itself or an
adjudication of any other application or proceeding arising under the
immigration laws; pursuant to any state or Federal mandatory reporting
requirement; and to deter, prevent, or ameliorate the effects of child
abuse. 8 CFR 208.6(d)(1)(i)-(iv), 1208.6(d)(1)(i)-(vi). Finally, the
Departments provide that nothing in 8 CFR 208.6 or 1208.6 should be
construed to prohibit the disclosure of information in or relating to
an application for asylum, statutory withholding of removal, and
protection under the CAT regulations among specified government
employees or where a government employee or contractor has a ``good
faith and reasonable'' belief that the disclosure is necessary to
prevent the commission of a crime, the furtherance of an ongoing crime,
or to ameliorate the effects of a crime. 8 CFR 208.6(e), 1208.6(e).
The Departments are making conforming edits to 8 CFR 208.6(a) and
(b) and 8 CFR 1208.6(b) to make clear that the disclosure provisions of
8 CFR 208.6 and 1208.6 apply to applications for withholding of removal
under the INA and for protection under the regulations implementing the
CAT, and not solely to asylum applications. That point is already clear
in 8 CFR 208.6(d) and 1208.6(d), and the Departments see no reason not
to conform the other paragraphs in that section for consistency.
2.13. Severability
Given the numerous and varied changes proposed in the NPRM, the
Departments are adding severability provisions in 8 CFR parts 208, 235,
1003, 1208, 1212, and 1235. See 8 CFR 208.25, 235.6(c), 1003.42(i),
1208.25, 1212.13, 1235.6(c). Because the Departments believe that the
provisions of each part would function sensibly independent of other
provisions, the Departments make clear that the provisions are
severable so that, if necessary, the regulations can continue to
function without a stricken provision.
3. Other
In comparison to the NPRM, this final rule strikes the regulatory
text changes proposed at 103.5 because those changes were inadvertently
included in the NPRM's proposed regulatory text.
II. Public Comments on the Proposed Rule
A. Summary of Public Comments
The comment period for the NPRM closed on July 15, 2020, with more
than 87,000 comments received. Organizations, including non-government
organizations, legal advocacy groups, non-profit organizations,
religious organizations, unions, congressional committees, and groups
of members of Congress, submitted 311 comments, and individual
commenters submitted the rest. Most individual comments opposed the
NPRM.
Many if not most comments opposing the NPRM either misstate its
contents, provide no evidence (other than isolated or distinguishable
anecdotes) to support broad speculative effects, are contrary to facts
or law, or lack an understanding of relevant immigration law and
procedures. As the vast majority of comments in opposition fall within
one of these categories, the Departments offer the following general
responses to them, supplemented by more detailed, comment-specific
responses in Section II.C of this preamble.
Many comments oppose the NPRM because they misstate, in hyperbolic
terms, that it ends or destroys the asylum system or eliminates the
availability of humanitarian protection in the United States. The NPRM
does nothing of the kind. The availability of asylum is established by
statute, INA 208, 8 U.S.C. 1158, and an NPRM cannot alter a
statute.\11\ Rather, the NPRM, consistent with the statutory authority
of the Secretary and the Attorney General, adds much-needed guidance on
the many critical, yet undefined, statutory terms related to asylum
applications. Such guidance not only improves the efficiency of the
system as a whole, but allows adjudicators to focus resources more
effectively on potentially meritorious claims rather than on meritless
ones. In short, the NPRM enhances rather than degrades the asylum
system.
---------------------------------------------------------------------------
\11\ For similar reasons, the NPRM cannot--and does not--alter
the general availability of withholding of removal under the Act or
protection under the CAT.
---------------------------------------------------------------------------
Many comments misstate that the NPRM creates a blanket rule denying
asylum based on its addition of certain definitions--e.g., particular
social group, political opinion, nexus, and persecution. Although the
rule provides definitions for these terms and examples of situations
that generally will not meet those definitions, the rule also makes
clear that the examples are generalizations, and it does not
categorically rule out types of claims based on those definitions. In
short, the rule does not contain the blanket prohibitions that some
commenters ascribe to it.
Many comments assert that the NPRM targets certain nationalities,
groups, or types of claims and is motivated by a nefarious or
conspiratorial animus, particularly an alleged racial animus. The
Departments categorically deny an improper motive in promulgating the
NPRM. Rather, the animating principles of the NPRM were to provide
clearer guidance to adjudicators regarding a number of thorny issues
that have
[[Page 80285]]
created confusion and inconsistency; to improve the efficiency and
integrity of the overall system; to correct procedures that were not
working well, including the identification of meritless or fraudulent
claims; and to reset the overall asylum adjudicatory framework in light
of numerous--and often contradictory or confusing--decisions from the
Board and circuit courts. The Departments' positions are rooted in law,
as explained in the NPRM. In short, the Departments have not targeted
any particular groups or nationalities in the NPRM or in the provisions
of this final rule.\12\ Rather, the Departments are appropriately using
rulemaking to provide guidance in order to streamline determinations
consistent with their statutory authorities. See Heckler v. Campbell,
461 U.S. 458, 467 (1983) (``The Court has recognized that even where an
agency's enabling statute expressly requires it to hold a hearing, the
agency may rely on its rulemaking authority to determine issues that do
not require case-by-case consideration. . . . A contrary holding would
require the agency continually to relitigate issues that may be
established fairly and efficiently in a single rulemaking
proceeding.'') (citation omitted); see also Lopez v. Davis, 531 U.S.
230, 243-44 (2001) (``[E]ven 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 Lopez--case-by-case decision-making in thousands of cases
each year--could invite favoritism, disunity, and inconsistency.'')
(citations and internal quotations omitted).
---------------------------------------------------------------------------
\12\ Asylum claims are unevenly distributed among the world's
countries. See EOIR, Asylum Decision Rates by Nationality (July 14,
2020), https://www.justice.gov/eoir/page/file/1107366/download.
Thus, to the extent that the NPRM affects certain groups of aliens
more than others, those effects are a by-product of the inherent
distribution of claims, rather than any alleged targeting by the
Departments. See also DHS v. Regents of Univ. of Cal., 140 S.Ct.
1891, 1915-16 (2020) (impact of a policy on a population that is
intrinsically skewed demographically does not established a
plausible claim of racial animus, invidious discrimination, or an
equal protection violation).
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Many, if not most, commenters asserted that the rule was
``arbitrary and capricious,'' though nearly all of those assertions
were ultimately rooted in the fact that the rule did not adopt the
commenters' policy preferences rather than specific legal deficiencies.
The Departments have considered all comments and looked at
alternatives. The Departments understand that many, if not most,
commenters opposing the rule believe that most asylum applications are
meritorious and, thus, would prefer that more applications for asylum
be granted; that border restrictions should be loosened; and that the
Departments, as a matter of forbearance or discretion, should decline
to enforce the law when doing so would be beneficial to aliens. For all
of the reasons discussed in the NPRM, and reiterated herein, the
Departments decline to adopt those positions.
The Departments further understand that many if not most commenters
have a policy preference for the status quo over the proposed rule
changes. The Departments have been forthright in acknowledging the
changes, but have also explained the reasoning behind those changes,
including the lack of clarity in key statutory language and the
resulting cacophony of case law that leads to confusion and
inconsistency in adjudication. The Departments acknowledge changes in
positions, where applicable have provided good reasons for the changes;
they believe the changes better implement the law; and they have
provided a ``reasoned analysis'' for the changes, which is contained in
the NPRM and reiterated herein in response to the comments received. In
short, the rule is not ``arbitrary and capricious'' under existing law.
See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
Finally, many commenters assert that various provisions of the NPRM
are inconsistent with either Board or circuit-court precedents. The
Departments may engage in rulemaking that overrules prior Board
precedent, and as noted in the NPRM, 85 FR at 36265 n.1, to the extent
that some circuits have disagreed with the Departments' interpretations
of ambiguous statutory terms in the past, the Departments' new rule
would warrant reevaluation in appropriate cases under well-established
principles of administrative law. See Nat'l Cable & Telecomms. Ass'n v.
Brand X internet Servs., 545 U.S. 967, 982 (2005) (hereinafter ``Brand
X''); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-844 (1984). Moreover, `` `judicial deference to the
Executive Branch is especially appropriate in the immigration context,'
where decisions about a complex statutory scheme often implicate
foreign relations.'' Scialabba v. Cuellar de Osorio, 573 U.S. 41, 56-57
(2014) (plurality op.) (quoting INS v. Aguirre-Aguirre, 526 U.S. 415,
425 (1999)).
Consequently, for the reasons explained in the NPRM and herein,
prior Board and circuit court decisions do not restrict the Departments
to the extent asserted by most commenters. Further, as also discussed,
infra, and recognized by commenters, much of the relevant circuit court
case law points in different directions and offers multiple views on
the issues in the NPRM. There is nothing inappropriate about the
Departments seeking to improve the consistency, clarity, and efficiency
of asylum adjudications, and to bring some reasonable order to the
dissonant views on several important-but-contested statutory issues.
See, e.g., Fed. Express Corp. v. Holowecki, 552 U.S. 389, 403 (2008)
(``We find no reason in this case to depart from our usual rule: Where
ambiguities in statutory analysis and application are presented, the
agency may choose among reasonable alternatives.'').
Overall, and as discussed in more detail below, the Departments
generally decline to adopt the recommendations of comments that
misinterpret the NPRM, offer dire and speculative predictions that lack
support, are contrary to facts or law, or otherwise lack an
understanding of relevant law and procedures.
B. Comments Expressing Support for the Proposed Rule
Comment: At least two organizations and other individual commenters
expressed general support for the rule. Some commenters noted the need
for regulatory reform given the current delays in asylum adjudication
and said the rule is a move in the right direction. Other commenters
indicated a range of reasons for their support, including a desire to
limit overall levels of immigration, a belief that many individuals who
claim asylum are instead simply seeking better economic opportunities,
or a belief that asylum seekers or immigration representatives abuse
the asylum system.
Commenters stated that the rule will aid both adjudicators and
applicants. For example, one individual and organization explained
that:
[T]hese proposals will give aliens applying for protection ample
notice and motivation to file complete and adequately reasoned
asylum applications in advance of the merits hearing, which will
protect the rights of the alien, assist the IJ in completing the
case in a timely manner, and aid the ICE attorney in representing
the interests of the government.
Response: The Departments note and appreciate these commenters'
support for the rule.
[[Page 80286]]
C. Comments Expressing Opposition to the Proposed Rule
1. General Opposition
1.1. General Immigration Policy Concerns
Comment: Many commenters expressed a general opposition to the
rule, and noted that, although they may not be commenting on every
aspect of the rule, a failure to comment on a specific provision does
not mean that the commenter agrees with a provision. Commenters stated
that the rule would ``destroy'' the U.S. asylum system and would result
in the denial of virtually all asylum applications. Instead, commenters
recommended that the current regulations remain in place. Moreover,
commenters stated that the rule conflicts with America's values and
deeply rooted policy of welcoming immigrants and refugees. Commenters
asserted that the rule would damage the United States' standing in the
world. Commenters explained that the United States should be promoting
values of freedom and human rights, and that immigration benefits the
United States both economically and culturally. Commenters asserted
that the rule provides inadequate legal reasoning and is
inappropriately motivated by the administration's animus against
immigrants.
Response: The rule is not immoral, motivated by racial animus, or
promulgated with discriminatory intent. Instead, the rule is intended
to help the Departments better allocate limited resources in order to
more expeditiously adjudicate meritorious asylum, statutory withholding
of removal, and CAT protection claims. For example, placing aliens who
receive a positive credible fear screening into asylum-and-withholding-
only proceedings will lessen the strain on the immigration courts by
limiting the focus of such proceedings and thereby streamlining the
process. Similarly, applying certain asylum bars and raising the
standards for statutory withholding of removal and CAT protection will
help screen out non-meritorious claims during the credible fear
screening, which will allow the Departments to devote their limited
resources to adjudicating claims that are more likely to be
meritorious. Likewise, allowing immigration judges to pretermit asylum
applications that are not prima facie eligible for relief will allow
judges to use limited hearing time to focus on cases with a higher
chance of being meritorious. The rule's expanded definition of
frivolousness will also help to deter specious claims that would
otherwise require the use of limited judicial resources. The rule's
additional guidance regarding certain definitions (such as particular
social groups, political opinion, persecution, and acquiescence, among
others), as well as enumerated negative discretionary factors, will
provide clarity to adjudicators and the parties and make the
adjudicatory process more efficient and consistent.
These changes do not ``destroy'' the U.S. asylum system, prevent
aliens from applying for asylum, or prevent the granting of meritorious
claims, contrary to commenters' claims. The asylum system remains
enshrined in both statute and regulation. Rather, the changes are
intended to harmonize the process between the relevant Departments,
provide more clarity to adjudicators, and allow the immigration system
to more efficiently focus its resources on adjudicating claims that are
more likely to be meritorious. In doing so, the rule will help the
Departments ensure that the asylum system is available to those who
truly have ``nowhere else to turn.'' Matter of B-R-, 26 I&N Dec. 119,
122 (BIA 2013) (internal citations omitted).
1.2. Issuance of Joint Regulations
Comment: At least one commenter expressed a belief that it is
inappropriate for DHS (characterized by the commenter as the
immigration prosecutors) and DOJ (characterized by the commenter as the
immigration adjudicators) to issue rules jointly because the agencies
serve different roles and missions within the immigration system. The
commenter stated that the issuance of joint regulations calls into
question the agencies' independence from each other.
Response: The HSA divided, between DHS and DOJ, some immigration
adjudicatory and enforcement functions that had previously been housed
within DOJ. See INA 103, 8 U.S.C. 1103 (setting out the powers of the
Secretary and Under Secretary of DHS and of the Attorney General); see
also HSA, sec. 101, 116 Stat. at 2142 (``There is established a
Department of Homeland Security, as an executive department of the
United States . . . .''). However, the Departments disagree that
issuing joint regulations violates the agencies' independence in the
manner suggested by commenters. Instead, the DHS and DOJ regulations
are inextricably intertwined, and the Departments' roles are often
complementary. See, e.g., INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III) (providing for immigration judge review of
asylum officers' determinations regarding certain aliens' credible fear
claims); see also 8 CFR 208.30 and 1208.30 (setting out the credible
fear procedures, which involve actions before both DHS/USCIS and DOJ/
EOIR). Because officials in both DHS and DOJ make determinations
involving the same provisions of the INA, including those related to
asylum, it is appropriate for the Departments to coordinate on
regulations like the proposed rule that affect both agencies' equities
in order to ensure consistent application of the immigration laws.
1.3. Impact on Particular Populations
Comment: Commenters asserted that the proposed regulation is in
conflict with American values and that it would deny due process to
specific populations--including women, LGBTQ asylum seekers, and
children. Commenters similarly expressed concerns that the proposed
regulation would lead to the denial of virtually all applications from
those populations, which, commenters asserted, would place them in
harm's way.
Commenters asserted that the elimination of gender-based claims
would be particularly detrimental to women and LGBTQ asylum-seekers.
Commenters asserted that the proposed rule would ``all but ban''
domestic-violence-based and gang-based claims. Commenters noted that
courts have found that such claims can be meritorious.
Response: The Departments disagree that the rule is contrary to
American values. The United States continues to fulfill its
international commitments in accordance with the Refugee Act of
1980,\13\ evidenced by United Nations High Commissioner for Refugees
(``UNHCR'') data on refugee resettlement confirming that the United
States was the top country for refugee resettlement in 2019, as well as
2017 and 2018. See UNHCR, Resettlement at a Glance (January-December
2019), https://www.unhcr.org/protection/resettlement/5e31448a4/resettlement-fact-sheet-2019.html. Further, since the Refugee Act was
passed, the United States has admitted more than three million refugees
and granted asylum to more than 721,000 individuals. See UNHCR, Refugee
Admissions, https://www.state.gov/refugee-admissions/. In Fiscal Year
(``FY'') 2019 alone, the Departments approved nearly 39,000 asylum
applications. EOIR, Asylum Decision Rates, (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1248491/download (listing 18,836
grants); USCIS, Number of Service-wide Forms Fiscal
[[Page 80287]]
Year To- Date, https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY19Q4.pdf (listing 19,945 grants). This rule does
not affect the United States' long-standing commitment to assisting
refugees and asylees from around the world.
---------------------------------------------------------------------------
\13\ See infra Section II.C.6.8 for further discussion on this
point.
---------------------------------------------------------------------------
The rule does not deny due process to any alien. As an initial
matter, courts have found that aliens have no cognizable due process
interest in the discretionary benefit of asylum. See Yuen Jin v.
Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008); Ticoalu v. Gonzales, 472
F.3d 8, 11 (1st Cir. 2006) (citing DaCosta v. Gonzales, 449 F.3d 45,
49-50 (1st Cir. 2006)). Still, the statute and regulations provide for
certain basic procedural protections--such as notice and an opportunity
to be heard--and the rule does not alter those basic protections. See
LaChance v. Erickson, 522 U.S. 262, 266 (1998) (``The core of due
process is the right to notice and a meaningful opportunity to be
heard.''); see also Lapaix v. U.S. Att'y Gen., 605 F.3d 1138, 1143
(11th Cir. 2010) (``Due process requires that aliens be given notice
and an opportunity to be heard in their removal proceedings.''). Aliens
in removal proceedings will continue to be provided a notice of the
charges of removability, INA 239(a)(1), 8 U.S.C. 1229(a)(1), have an
opportunity to present the case to an immigration judge, INA 240(a)(1),
8 U.S.C. 1229a(a)(1), and have an opportunity to appeal, 8 CFR 1003.38.
Aliens in asylum-and-withholding-only proceedings will continue to be
provided notice of referral for a hearing before an immigration judge,
8 CFR 1003.13 (defining ``charging document'' used by DHS to initiate
non-removal, immigration proceedings before an immigration judge), to
have an opportunity to be heard by an immigration judge, 8 CFR
1208.2(c), and have an opportunity to appeal, 8 CFR 1003.1(b)(9).
Nothing in the proposed regulations alters those well-established
procedural requirements.
The generalized concern that the rule will categorically deny
asylum to classes of persons, such as women or LGBTQ asylum-seekers--
and thus put those persons in harm's way--is unsupported, speculative,
and overlooks the case-by-case nature of the asylum process. The rule
provides more clarity to adjudicators regarding a number of difficult
issues--e.g. persecution, particular social group, and nexus--in order
to improve the consistency and quality of adjudications, but it
establishes no categorical bars to domestic-violence-based or gang-
based claims, and no categorical bars based on the class or status of
the person claiming asylum; instead, asylum cases turn on the nature of
the individual's claim. Moreover, in accordance with its non-
refoulement obligations, the United States continues to offer statutory
withholding of removal and CAT protection. Although this rule amends
those forms of relief, the amended relief continues to align with the
provisions of the 1951 Convention relating to the Status of Refugees,
the 1967 Protocol relating to the Status of Refugees, and the CAT, such
that eligible aliens will not be returned to places where they may be
subjected to persecution or torture.
The portion of the rule that draws the objection above does not
categorically ban or eliminate any types of claims, including those
posited by the commenters. In relevant part, the rule codifies a long-
standing test for determining the cognizability of particular social
groups and sets forth a list of common fact patterns involving
particular-social-group claims that generally will not meet those long-
standing requirements. See 85 FR at 36278-79; see also 8 CFR
208.1(f)(1), 1208.1(f)(1). At the same time, the Departments recognized
in the NPRM that ``in rare circumstances,'' items from the list of
common fact patterns ``could be the basis for finding a particular
social group, given the fact- and society-specific nature of this
determination.'' 85 FR at 36279. Thus, the NPRM explicitly stated that
the rule did not ``foreclose'' any claims; the inquiry remains case-by-
case.
2. Expedited Removal and Screenings in the Credible Fear Process
2.1. Asylum-and-Withholding-Only Proceedings for Aliens With Credible
Fear
Comment: One organization stated that the rule would deprive
individuals who have established a credible fear from being placed into
full removal proceedings under section 240 of the Act, 8 U.S.C. 1229a.
Another organization claimed that the rule, ``effectively destroys due
process rights of asylum seekers'' as it would prevent these
individuals from contesting removability where there are ``egregious
due process violations,'' defects in the Notice to Appear, or
competency concerns.
One organization stated that the rule is contrary to congressional
intent because there is no statutory prohibition against placing
arriving asylum seekers into complete section 240 proceedings, and at
least one organization claimed that this intent is supported by the
legislative history. One organization expressed its disagreement with
the rule's citation to Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), 85
FR at 36267 n.9, contending that if Congress intended to ``strip
asylum-seekers of their due process rights, it would have expressly
said so.'' Another organization stated that the rule is ``[a]rbitrary
and capricious,'' noting that the proposed policy is a ``dramatic
change'' from decades of practice but claiming the Departments offer
``no discussion'' as to why it is necessary.
One organization emphasized that ``asylum-only proceedings,'' are
limited in scope and both parties are prohibited from raising ``any
other issues.'' The organization alleged that the NPRM did not include
any data regarding the number of asylum seekers who are placed in
section 240 proceedings after passing a credible fear interview, or the
number of respondents in these proceedings who are granted some form of
relief besides asylum or withholding of removal. Because of this, the
organization claimed that the rule ``does not provide adequate
justification'' for the proposed change.
Another organization claimed the rule ``pre-supposes'' that asylum
seekers would not be eligible for other forms of immigration relief.
The organization noted that many individuals who are apprehended at the
border as asylum applicants may also be victims of human trafficking or
serious crimes committed within the United States. The organization
stated that Congress has recognized the unique assistance that victims
of human trafficking and victims of crimes potentially eligible for U
visas are able to provide to Federal law enforcement, claiming this is
the reason the S visa, T visa, and U visa programs were created. The
organization asserted that if the Departments ``cut off'' access to a
complete section 240 proceeding, they will essentially ``tie the
hands'' of law enforcement. Another organization expressed concern that
the rule would prevent survivors of gender-based and LGBTQ-related
violence in expedited removal proceedings from applying for protection
under the Violence Against Women Act (``VAWA'') or the William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
(``TVPRA'').
One organization contended that there is little efficiency in
abandoning removability determinations in removal proceedings, arguing
that ``[i]n the overwhelming majority of cases, the pleadings required
to establish removability take 30 seconds.'' The organization argued
that Congress
[[Page 80288]]
would not have chosen to sacrifice competency and accuracy to save such
a short amount of time. Another organization criticized the rule's
statement that ``referring aliens who pass a credible fear for section
240 proceedings runs counter to [the] legislative aims'' of a quick
expedited removal process, 85 FR at 36267, arguing that this
justification is ``faulty at best and baseless at worst.'' One
organization claimed that administrative efficiency is aided by the
availability of a broad range of reliefs because respondents placed in
full removal proceedings often qualify for a simpler form of relief,
allowing courts to omit many of these complexities.
One organization noted that, in the expedited removal context,
decisions are made by Customs and Border Protection (``CBP'') officers.
The organization expressed concern about the risk of error in
permitting an enforcement officer to act as both ``prosecutor and
judge,'' particularly when the officer's decisions are not subject to
appellate review. The organization also noted the rule's reference to
the ``prosecutorial discretion'' of DHS in removal proceedings and
argued that this discretion does not include the authority to create
new types of proceedings. Instead, the organization contended that this
discretion is confined to decisions surrounding the determination of
whether to pursue charges. Another organization emphasized that, while
DHS has the discretion to place an individual without documentation
directly into section 240 proceedings instead of expedited removal,
this discretion is ``initial,'' and does not continue once the
individual has established fear (as the individual must then be
referred for full consideration of his or her claims). The organization
disagreed with the rule's assertion, 85 FR at 36266, that the current
practice of placing applicants with credible fear into section 240
proceedings ``effectively negat[es]'' DHS's prosecutorial discretion.
The organization further disagreed with the Departments' claim that
``[b]y deciding that the [individual] was amenable to expedited
removal, DHS already determined removability,'' 85 FR at 36266,
contending this ``overreaches.'' The organization noted that, pursuant
to section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1), a DHS inspector
does have initial discretion to place an applicant into expedited
removal proceedings if it is determined that the person ``is
inadmissible under section 1182(a)(6)(C) or 1182(a)(7);'' however, the
organization emphasized that this is not the ultimate determination for
applicants who establish credible fear, as DHS cannot continue to seek
expedited removal at this point.
One organization stated that, when Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(``IIRIRA''), Public Law 104-208, Div. C, 110 Stat. 3009, 3009-546, it
created two specific removal procedures: Expedited removal proceedings
in section 235 of the Act, 8 U.S.C. 1225, and regular removal
proceedings in section 240 of the Act, 8 U.S.C. 1229a. The organization
asserted that section 240 proceedings are the ``exclusive'' admission
and removal proceedings ``unless otherwise specified'' in the Act, 8
U.S.C. 1229a(a)(3). The organization also noted Congress's
specification that certain classes of citizens should not be placed in
full removal proceedings, noting the exclusion of persons convicted of
particular crimes (INA 240(a)(3), 8 U.S.C. 1229a(a)(3)); INA 238(a)(1),
8 U.S.C. 1228(a)(1)) as well as the prohibition of visa waiver program
participants from contesting inadmissibility or removal except on the
basis of asylum (INA 217(b), 8 U.S.C. 1187(b)). The organization also
noted that, within the expedited removal statute itself, Congress
specifically excluded stowaways from section 240 proceedings (INA
235(a)(1), 8 U.S.C. 1225(a)(2)); in contrast, Congress considered
asylum seekers to be applicants for admission under section 235(a)(1)
of the Act, 8 U.S.C. 1225(a)(1), and did not similarly exclude them
(see INA 235(b), 8 U.S.C. 1225(b)). The organization concluded that the
plain text of the INA ``precludes the agencies' claim that they are
free to make up new procedures to apply to arriving asylees'' (citing
Henson v. Santander Consumer USA, Inc., 137 S. Ct. 1718, 1723 (2017)).
The organization claimed that IIRIRA's legislative history
``unanimously confirms'' this conclusion, citing the conference report
by the Joint Committee from the House and the Senate in support of its
assertion. See H.R. Rep. No. 104-828 at 209 (1996). The organization
also emphasized that, after twenty-three years of placing applicants
with credible fear into section 240 proceedings, ``Congress has never
suggested that the agencies got that wrong.''
Another organization emphasized that Congress only authorized
expedited removal for a specific category of noncitizens and that, at
the time this determination was made, the class was confined to
individuals arriving at ports of entry. The organization argued that
Congress did not intend to deter individuals who have ``cleared the
hurdle of establishing a credible fear of persecution.'' Another
organization argued that the credible fear screening ``creates an
exit'' from expedited removal proceedings, emphasizing that those who
establish credible fear are effectively ``screened out'' of expedited
removal proceedings (INA 235(b)(1)(B)(ii)-(iii), 8 U.S.C.
1225(b)(1)(B)(ii)-(iii)). One organization expressed particular concern
that ``the president has announced an intention to expand expedited
removal to the interior of the United States,'' noting that noncitizens
who have been in the United States for up to two years are more likely
to have other forms of relief to pursue.
Response: The Departments disagree with commenters that the INA
requires aliens who are found to have a credible fear to be placed in
full removal proceedings pursuant to section 240 of the Act, 8 U.S.C.
1229(a). The expedited removal statute states only that ``the alien
shall be detained for further consideration of the application for
asylum,'' but is silent on the type of proceeding. INA 235(b)(1)(B)(ii)
8 U.S.C. 1225(b)(1)(B)(ii). This silence is notable as Congress
expressly required or prohibited the use of full removal proceedings
elsewhere in the same expedited removal provisions. Compare INA
235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A) (explicitly requiring certain
aliens not eligible for expedited removal to be placed in section 240
removal proceedings), with INA 235(a)(2), 8 U.S.C. 1225(a)(2)
(explicitly prohibiting stowaways from being placed in section 240
removal proceedings).\14\ As explained in the NPRM, the former
Immigration and Naturalization Service (``INS'') interpreted this
ambiguous section to place aliens with positive credible fear
determinations into section 240 removal proceedings. See Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct
of Removal Proceedings; Asylum Procedures, 62 FR 10312 (Mar. 6, 1997).
However, it is the Departments' view that the better interpretation is
to place aliens with positive credible fear determinations into limited
asylum-and-withholding-only proceedings. This is consistent with the
statutory language that the
[[Page 80289]]
alien is entitled to a further proceeding related to the alien's
``application for asylum,'' and not a full proceeding to also determine
whether the alien should be admitted or is otherwise entitled to
various immigration benefits. INA 235(b)(1)(B)(ii), 8 U.S.C.
1225(b)(1)(B)(ii).
---------------------------------------------------------------------------
\14\ The Departments note that section 240(a)(3) of the Act (8
U.S.C. 1229a(a)(3)), which makes removal proceedings the
``exclusive'' procedure for inadmissibility and removability
determinations, is inapplicable here because DHS has already
determined inadmissibility as part of the expedited removal process.
See INA 235(b)(1)(A)(i) (8 U.S.C. 1225(b)(1)(A)(i)).
---------------------------------------------------------------------------
This interpretation also best aligns with the overall purpose of
the expedited removal statute to provide a streamlined and efficient
removal process for certain aliens designated by Congress.\15\ See
generally INA 235, 8 U.S.C. 1225; cf. DHS v. Thuraissigiam, 140 S.Ct.
1959, 1966 (2020) (``As a practical matter . . . the great majority of
asylum seekers who fall within the category subject to expedited
removal do not receive expedited removal and are instead afforded the
same procedural rights as other aliens.''). Further, contrary to
commenters' claims, placing aliens into asylum-and-withholding-only
proceedings is not inconsistent with the purposes of the credible fear
statute. See INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The credible
fear process was designed to ensure that aliens subject to expedited
removal are not summarily removed to a country where they may face
persecution on account of a protected ground or torture. This rule
maintains those protections by ensuring that an alien with a positive
credible fear finding receives a full adjudication of their claim in
asylum-and-withholding-only proceedings.
---------------------------------------------------------------------------
\15\ The Departments note that any comments regarding the
potential expansion of expedited removal is outside the scope of
this rule. Cf. Designating Aliens for Expedited Removal, 84 FR 35409
(July 23, 2019).
---------------------------------------------------------------------------
Regarding commenters' concerns about due process in asylum-and-
withholding-only proceedings, the Departments note that the rule
provides the same general procedural protections as section 240 removal
proceedings. See 85 FR at 36267 (``These `asylum-and-withholding-only'
proceedings generally follow the same rules of procedure that apply in
section 240 proceedings . . . .''); accord 8 CFR 1208.2(c)(3)(i)
(``Except as provided in this section, proceedings falling under the
jurisdiction of the immigration judge pursuant to paragraph (c)(1) or
(c)(2) of this section [i.e., asylum-and-withholding-only proceedings]
shall be conducted in accordance with the same rules of procedure as
proceedings conducted under 8 CFR part 1240, subpart A [i.e., removal
proceedings].''). Moreover, just as in removal proceedings, aliens will
be able to appeal their case to the BIA and Federal circuit courts, as
necessary. Finally, DOJ has conducted asylum-and-withholding-only
proceedings for multiple categories of aliens for years already, 8 CFR
1208.2(c)(1) and (2), with no alleged systemic concerns documented
about the due process provided in those proceedings.
The Departments agree with the commenter who noted that
removability determinations are typically brief for those aliens
subject to expedited removal who subsequently establish a credible fear
and are placed in removal proceedings. The Departments believe that
comment further supports the placement of such aliens in asylum-and-
withholding-only proceedings since ``in the overwhelming majority of
cases,'' there is no need for a new removability determination that
would otherwise be called for in removal proceedings.
The Departments disagree with commenters that section 240 removal
proceedings are more efficient than asylum-and-withholding-only
proceedings or that more data is required to align asylum-and-
withholding-only proceedings with the statutory language of INA
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), especially when there was
little analysis--and no data offered--to support placing aliens with
positive credible fear determinations in removal proceedings in the
first instance. See 85 FR at 36266 (stating that the 1997 decision to
place such aliens in removal proceedings was made with limited
analysis, other than to note that the statute was silent on the type of
proceeding that could be used). Most aliens subject to the expedited
removal process are, by definition, less likely to be eligible for
certain other forms of relief due to their relatively brief presence in
the United States. See, e.g., INA 240A(b)(1), 8 U.S.C. 1229b(b)(1)
(cancellation of removal for certain non-permanent residents requires
ten years of continuous physical presence); INA 240B(b)(1)(A), 8 U.S.C.
1229c(b)(1)(A) (voluntary departure at the conclusion of proceedings
requires an alien to have been physically present in the United States
for at least one year prior to the service of a notice to appear). In
particular, they are less likely to be eligible for the simplest form
of relief, voluntary departure, because either they are arriving
aliens, INA 240B(a)(4), 8 U.S.C. 1229c(a)(4), or they are seeking
asylum, 8 CFR 1240.26(b)(1)(i)(B) (requiring the withdrawal of claims
for relief in order to obtain pre-hearing voluntary departure), or they
have not been physically present in the United States for at least one
year prior to being placed in proceedings, INA 240B(b)(1)(A), 8 U.S.C.
1229c(b)(1)(A). Further, immigration judges often adjudicate multiple
forms of relief in a single removal proceeding--in addition to asylum,
withholding of removal, or CAT claims--and those additional issues
generally only serve to increase the length of the proceedings.
Although there may be rare scenarios in which aliens subject to
expedited removal are eligible for a form of relief other than asylum,
the Departments believe that interpreting the statute to place aliens
with positive credible-fear determinations into more limited asylum-
and-withholding-only proceedings properly balances the need to prevent
aliens from being removed to countries where they may face persecution
or torture with ensuring the efficiency of the overall adjudicatory
process.
The Departments also disagree with comments that the placement of
aliens who have passed a credible fear review in asylum-and-
withholding-only proceedings will somehow ``tie the hands'' of law
enforcement regarding an alien's eligibility for certain visas. The
rule has no bearing on an alien's ability to provide assistance to law
enforcement, and the adjudication of applications for S-, T-, and U-
visas occurs outside of any immigration court proceedings.\16\ See
generally 8 CFR 214.2(t) (S-visa adjudication process), 214.11 (T-visa
adjudication process), 214.14 (U-visa adjudication process).
---------------------------------------------------------------------------
\16\ The Departments note that S-visa recipients are already
subject to withholding-only proceedings. INA 214(k)(3)(C), 8 U.S.C.
1184(k)(3)(C); 8 CFR 236.4(d), (e) and 1208.2(c)(2)(vi).
---------------------------------------------------------------------------
Commenters also mischaracterize the Departments' policy reliance on
DHS's prosecutorial discretion authority, claiming that the Departments
are relying on this discretion as the legal authority for placing
aliens with positive credible fear determinations into asylum-and-
withholding-only proceedings. However, it is the expedited removal
statute that provides the authority, see INA 235(b)(1)(B)(ii), 8 U.S.C.
1225(b)(1)(B)(ii), not DHS's prosecutorial discretion. In the NPRM, the
Departments noted that it made better policy sense to place aliens with
positive credible fear determinations into asylum-and-withholding-only
proceedings; placing aliens in section 240 proceedings after a credible
fear determination ``effectively negates DHS's original discretionary
decision.'' 85 FR at 36266.
The Departments acknowledge commenters' concerns about CBP
processing aliens for expedited removal and the exercise of
prosecutorial discretion, but those issues are beyond
[[Page 80290]]
the scope of the rule. Moreover, the rule does not affect DHS's use of
prosecutorial discretion, nor does it alter any other statutory
authority of CBP.
2.2. Consideration of Precedent When Making Credible Fear
Determinations in the ``Credible Fear'' Process
Comment: One organization stated that the rule would
``unnecessarily narrow'' the law that immigration judges must consider
in the context of a credible fear review, restricting them to the
circuit court law in their own jurisdiction. The organization alleged
that this ``makes little sense'' because individuals seeking a credible
fear review will often have their asylum claim adjudicated in a
jurisdiction with different case law than the jurisdiction where their
credible fear claim is reviewed. As an example, one organization
suggested that an asylum seeker apprehended in Brownsville, Texas, in
the Fifth Circuit, could subsequently have his or her asylum claim
heard in an immigration court located within another circuit's
jurisdiction. Because of this, the organization urged asylum officers
and immigration judges to consider all case law when determining the
possibility of succeeding on the claim, ``[r]egardless of the location
of the credible fear determination.''
One organization claimed the rule could require asylum officers to
order the expedited removal of an applicant who has shown an ability to
establish asylum eligibility under section 208 of the Act, 8 U.S.C.
1158, in another circuit or district, which the organization alleged is
contrary to section 235(b)(1)(B)(v) of the Act, 8 U.S.C.
1225(b)(1)(B)(v). The organization also claimed this portion of the
rule is ``flatly contrary'' to the decision in Grace v. Whitaker, 344
F. Supp. 3d 96 (D.D.C. 2018) (hereinafter ``Grace I''), overruled in
part, Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020), holding that the
same provision in USCIS guidance was contrary to the INA. The
organization quoted Grace I, 344 F. Supp. 3d 96 in which the court
stated that ``[t]he government's reading would allow for an
[individual's] deportation, following a negative credible fear
determination, even if the [individual] would have a significant
possibility of establishing asylum under section 1158 during his or her
removal proceeding. Thus, the government's reading leads to the exact
opposite result intended by Congress.'' Id. at 140. The organization
also claimed the rule violates Brand X because it exceeds the
Departments' ``limited ability to displace circuit precedent on a
specific question of law to which an agency decision is entitled to
deference'' (citing Grace I, 344 F. Supp. 3d at 136). Another
organization alleged that the Departments offer no explanation for the
policy change, claiming there is ``no discernable reason'' for it other
than to ``limit the possibility of favorable case law in another
jurisdiction.''
One organization noted that well-settled USCIS policy holds that,
in the case of a conflict or question of law, ``generally the
interpretation most favorable to the applicant is used when determining
whether the applicant meets the credible fear standard'' regardless of
where the credible fear interview is held. The organization claimed
that this policy is in line with congressional intent, quoting a
statement from Representative Smith that ``[l]egal uncertainty must, in
the credible fear context, adhere to the applicant's benefit.'' The
organization alleged that the NPRM fails to note or explain this
departure from practice.
Response: The Departments decline to respond to comments centering
on an asylum officer's consideration of precedent as that issue was not
addressed in this rule, and further disagree with commenters that
immigration judges are currently required to consider legal precedent
from all Federal circuit courts in credible fear proceedings. DOJ has
not issued any regulations or guidance requiring immigration judges to
use a ``most favorable'' choice of law standard in credible fear review
proceedings. See, e.g., 8 CFR 1003.42.
Moreover, the statute is silent as to this choice of law question.
See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). Due
to this ambiguity, the Departments are interpreting the statute to
require immigration judges to apply the law of the circuit in which the
credible fear review proceeding is located. This better comports with
long-standing precedent affirming the use of the ``law of the circuit''
standard in immigration proceedings. See Jama v. ICE, 543 U.S. 335, 351
n.10 (2005) (``With rare exceptions, the BIA follows the law of the
circuit in which an individual case arises . . . .'' (citations
omitted)); Ballesteros v. Ashcroft, 452 F.3d 1153, 1157 (10th Cir.
2006) (explaining that an immigration judge ``should analyze
removability and relief issues using only the decisions of the circuit
in which he or she sits . . . since it is to that circuit that any
appeal from a final order of removal must be taken''). It will also
provide clarity to immigration judges conducting credible fear reviews,
particularly on issues in which there is conflicting circuit court
precedent.
Further, contrary to commenters' assertions, in most cases the
immigration judge conducting the credible fear review in person will be
in the same circuit in which the full asylum application in asylum-and-
withholding only proceedings would be adjudicated if the judge finds
the alien has a credible fear.\17\ Aliens in this posture are subject
to detention by DHS. Thuraissigiam, 140 S.Ct. at 1966 (``Whether an
applicant [subject to expedited removal] who raises an asylum claim
receives full or only expedited review, the applicant is not entitled
to immediate release.''). As a result, unless DHS moves the alien to a
detention facility in a different circuit, the case would likely remain
in the same jurisdiction. Requiring the immigration judge to review
nationwide circuit case law would only create inefficiencies in a
credible fear review process that Congress intended to be streamlined.
See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III)
(requiring immigration judge review to be completed ``as expeditiously
as possible, to the maximum extent practicable within 24 hours, but in
no case later than 7 days'' after the asylum officer's determination).
---------------------------------------------------------------------------
\17\ Even in situations in which an immigration judge conducts
the review from a different location--e.g. by telephone or by video
teleconferencing--in a different circuit, the rule provides a clear
choice of law principle to apply.
---------------------------------------------------------------------------
Moreover, the Departments have reviewed the statutory mandate in
the credible fear context and note that a rule requiring evaluation of
a claim using law beyond that of a particular circuit could produce
perverse outcomes contrary to the statute. For example, an alien could
be found to have a ``significant possibility'' of establishing
eligibility for asylum under section 208 of the Act even though binding
law of the circuit in which the application would be adjudicated
precludes the alien from any possibility of establishing eligibility
for asylum. Such an absurd result would be both contrary to the
statutory definition of a credible fear, INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v), and would further burden the system with claims that
were known to be unmeritorious at the outset. The Departments decline
to adopt a course of action that would lead to results inconsistent
with the statute.
Moreover, adopting the uniform rule proposed by the Departments
would ameliorate otherwise significant operational burdens--burdens
that would be inconsistent with Congress's
[[Page 80291]]
goal of establishing an efficient expedited removal system. Without it,
asylum officers and immigration judges around the country would
potentially have to consider and apply a shifting patchwork of law from
across the country, and this obligation would undermine the stated
statutory aim of expedited removal: To remove aliens expeditiously.
The Departments' choice-of-law rule in this context is reasonable.
The most natural choice-of-law principle is the rule that the law of
the circuit where the interview is conducted governs. That is the
principle embraced by DOJ in adjudicating the merits of asylum claims,
Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989) (``We are not required
to accept an adverse determination by one circuit . . . as binding
throughout the United States.''), as well as by circuit courts. For
example, where the law governing an agency's adjudication is unsettled,
an agency generally is required to acquiesce only in the law of the
circuit where its actions will be reviewed; while ``intracircuit
acquiescence'' is generally required, ``intercircuit acquiescence'' is
not. See Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082, 1093 (D.C. Cir.
1992). Because the circuits may disagree on the law, requiring
acquiescence with every circuit would charge the Departments with an
impossible task of following contradictory judicial precedents. See
Nat'l Envtl. Dev. Ass'n Clean Air Project v. EPA, 891 F.3d 1041, 1051
(D.C. Cir. 2018); see also Grant Med. Ctr. v. Hargan, 875 F.3d 701, 709
(D.C. Cir. 2017).
Intercircuit nonacquiescence principles are especially important
where there is ``venue uncertainty,'' meaning the agency cannot know at
the time it issues its decision in which circuit that decision will be
reviewed. In those situations, an agency has discretion in its choice
of law, though it must be candid about its nonacquiescence. See Grant
Med. Ctr., 875 F.3d at 707. The rule's choice-of-law provision in this
context is fully consistent with the Board's long-standing approach and
the administrative-law principles embraced by circuit courts. At the
time of the credible-fear screenings by an asylum officer, the only
circuit with a definite connection to the proceedings is the circuit
where the screening of the alien takes place. The location of the alien
at the time of the credible fear determination will be the
determinative factor as to which circuit's law applies. Applying that
circuit's law is an objective, reasonable, administrable, and fair
approach to credible-fear screening.
In Grace v. Barr, the D.C. Circuit affirmed an injunction of
USCIS's implementation of a ``law of the circuit'' policy in credible
fear proceedings. 965 F.3d 883 (D.C. Cir. 2020) (hereinafter ``Grace
II''). However, in that case, the court affirmed an injunction based on
USCIS's failure to explain the basis of its ``law of the circuit''
policy and expressly declined to decide whether the substance of such a
policy--if explained more fully--would be contrary to law. Id. at 903.
Here, as detailed above, the Departments have explained the necessity
of codifying a law of the circuit policy in credible fear proceedings
before immigration judges and, to that end, are interpreting an
ambiguous statutory provision, INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v) (defining ``credible fear of persecution'' by
reference to eligibility for asylum), in which the Departments are
entitled deference. See Chevron, U.S.A., Inc., 467 U.S. at 844 (holding
that, when interpreting an ambiguous statute, ``a court may not
substitute its own construction of a statutory provision for a
reasonable interpretation made by the administrator of an agency'').
2.3. Remove and Reserve DHS-Specific Procedures From DOJ Regulations
Comment: In the context of discussing the DOJ's removal of DHS-
specific provisions from 8 CFR part 1235, at least one commenter
expressed concern that the rule would eliminate or make more difficult
the parole authority at 8 CFR 235.3(c).
Response: Following the enactment of the HSA, EOIR's regulations
were transferred to or duplicated in a newly created chapter V of 8
CFR, with related redesignations. See Aliens and Nationality; Homeland
Security; Reorganization of Regulations, 68 FR 9824, 9830, 9834 (Feb.
28, 2003); see also Aliens and Nationality; Homeland Security;
Reorganization of Regulations, 68 FR 10349 (Mar. 5, 2003). DOJ
transferred parts of the Code of Federal Regulations that pertained
exclusively to EOIR from chapter I to chapter V; duplicated parts of
the Code of Federal Regulations that related to both the INS and EOIR,
which were included in both chapters I and V; and made technical
amendments to both chapters I and V. For example, DOJ duplicated all of
part 235 in the newly created 8 CFR part 1235 because the Department
determined that ``nearly all of the provisions of this part affect bond
hearings before immigration judges.'' 68 FR at 9826. The Departments
anticipated further future adjustments and refinements to the
regulations in the future ``to further refine the adjudicatory
process.'' 68 FR at 9825.
Upon further review, however, DOJ has determined that 8 CFR 1235.1,
1235.2, 1235.3, and 1235.5 are not needed in 8 CFR chapter V because
they concern procedures specific to DHS's examination of applicants for
admission and are outside the purview of DOJ's immigration
adjudicators. See 85 FR at 36267. In order to prevent confusion and
reduce the chance of future inconsistencies with 8 CFR 235.1, 235.2,
235.3, and 235.5, which are not amended, the rule removes and reserves
8 CFR 1235.1, 1235.2, 1235.3, and 1235.5. Finally, in response to the
commenter's particular concern, the Departments note that DOJ does not
make parole determinations, and DHS's parole authority in 8 CFR
235.3(c) is both unaffected by this rule and outside the scope of the
rulemaking generally.
2.4. Reasonable Possibility as the Standard of Proof for Statutory
Withholding of Removal and Torture-Related Fear Determinations for
Aliens in Expedited Removal Proceedings and Stowaways
Comment: One organization noted that the rule would require that
those applying for withholding of removal to prove a ``reasonable
fear'' of persecution, which is a higher standard than that required
for asylum. The organization suggested that the drafters of the rule
were targeting individuals who are ineligible for asylum and are thus
applying for withholding of removal only. The organization noted that a
large number of refugees may meet this criteria due to the
administration's ``unsuccessful attempts'' to impose additional asylum
restrictions on individuals entering the United States outside a port
of entry, as well as those arriving at the southern border after
passing through third countries, if they did not apply for asylum and
have their application(s) rejected in one of those countries.
One commenter alleged that the rule would ``greatly increase the
burden'' of individuals eligible only for withholding of removal or
protection under CAT to succeed in initial interviews and present their
cases before an immigration judge. The commenter noted that the rule
would require asylum seekers who would be subject to a bar on asylum,
including those subject to the ``transit ban'' found at 8 CFR
208.13(c)(4)(ii), to meet the heightened standard in order to have
their cases heard before an immigration judge. The commenter alleged
that the rule would ``essentially eliminate'' the
[[Page 80292]]
``significant possibility'' standard set forth by Congress in the INA
and replace it with a ``reasonable possibility'' standard which is much
harder for asylum seekers to meet. One organization claimed that, as a
result, ``[m]eritorious asylum seekers will be screened out of the
asylum system--a reality Congress expressly prohibited.''
One organization claimed that Congress intended to set a low
screening standard for the credible fear process in order to aid
eligible asylum seekers and alleged that the NPRM fails to provide
justification for raising this standard. The organization expressed
concern that asylum officers lack the resources to ``jump'' from
applying the ``significant possibility'' standard to the ``reasonable
possibility'' standard during a brief interview and also emphasized
that noncitizens are more likely to obtain counsel in immigration court
than in the initial screening process. One commenter stated that the
rule, ``[u]nrealistically and unconscionably'' heightens the standard
individuals must meet upon arrival at the border and limits the
protections for individuals who ``have or would be tortured.''
One organization emphasized that the ``reasonable possibility''
standard is essentially the same burden of proof used when adjudicating
an asylum application in a full immigration hearing. The organization
claimed, however, that individuals seeking a fear determination will
almost always have less evidence and less time to present their case
than individuals in court. As a result, the organization alleged that
the standard of proof in fear determinations should be lower than that
used in immigration court hearings. Another organization criticized the
Departments' assertion that raising the screening bar is necessary to
``align'' the screening with the burden of proof in the merits
proceeding for each type of relief. The organization disagreed, noting
that asylum officers must already consider the merits burden of proof
when screening for fear under existing law, as they must determine
whether there is a ``significant possibility'' that an applicant
``could be eligible'' for each type of potential relief. The commenter
asserted that this necessarily entailed a consideration of the burden
of proof to establish eligibility for those forms of relief. As a
result, the higher screening burden ``serves only to require more and
stronger evidence before the merits stage, and at a moment when
applicants are least likely to be able to amass it.''
One organization noted that many credible fear applicants are
``profoundly traumatized, exhausted, terrified,'' and unfamiliar with
the legal process, and emphasized that these individuals will not have
time to gather their thoughts or collect evidence to support ``highly
fact-specific inquiries'' at an interview screening. Another
organization stated that asylum-seekers are screened in ``exceedingly
challenging circumstances,'' as well as in cursory interviews over the
telephone. One organization specifically alleged that the Departments
failed to consider how trauma affects the fear screening process,
emphasizing research showing that trauma affects demeanor in ways that
could ``easily affect credibility'' (nervousness, inability to make eye
contact, etc.). At least one organization expressed particular concern
for LGBTQ asylum seekers, and another organization emphasized that
arriving applicants are unrepresented, unlikely to understand U.S.
legal standards, and may be fearful or reluctant to discuss their
persecution with authorities.
One organization claimed the Departments have offered no evidence
that the current procedure of using one standard to screen for any
claim for relief complicates or delays the expedited removal process,
alleging that this argument is not supported by government data. The
organization noted that the number of individuals removed through
expedited removal has increased fairly steadily over the years, stating
that 43 percent of removals during 2018 were through the expedited
removal process and that this proportion has not changed over the past
decade. The organization also asserted there is no evidence that
``requiring asylum officers to evaluate varying claims relating to the
same group of facts with three different screens would be simpler,''
claiming this would actually make the determination more complicated.
The organization also disagreed with the Departments' suggestion
that DOJ's language in a previous rule ``imposing the higher burden to
a particular group in a previous rule supports their rationale''
(citing 85 FR at 36270). The organization emphasized that, in the
previous rule, DOJ applied a higher screening standard strictly to
individuals ``subject to streamlined administrative removal processes
for aggravated felons under section 238(b) of the Act and for [people]
subject to reinstatement of a previous removal order under section
241(a)(5) of the Act.'' Regulation Concerning the Convention Against
Torture, 64 FR 8478, 8485 (Feb. 19, 1999). The organization claimed DOJ
specifically distinguished that group as different from the ``broad
class'' of arriving individuals subject to expedited removal, stating
that the Departments offer no explanation for why this ``broad class''
can now be treated as a ``narrowly defined class whose members can
raise only one claim.'' The organization also accused the Departments
of failing to explain what authority they used to add to and raise the
statutory burden of proof in Congress's ``carefully described credible
fear procedures.'' INA 235(b), 8 U.S.C. 1225(b).
One organization noted that a U.S. district court vacated the
``third country asylum ban regulations'' on June 30, 2020, see Capital
Area Immigrants' Rights Coalition v. Trump,--F.Supp.3d--, 2020 WL
3542481 (D.D.C. 2020) and also noted that the Ninth Circuit upheld a
previous injunction against the rule on July 6, 2020, see E. Bay
Sanctuary Covenant v. Barr, 964 F.3d 832 (9th Cir. 2020). The
organization also referred to a separate rule that it claimed attempted
to ban asylum for individuals entering the United States without
inspection and noted that this rule was ``blocked'' by two separate
district courts. See E. Bay Sanctuary Covenant v. Trump, 354 F.Supp.3d
1094 (N.D. Cal 2018); O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019).
The organization noted that, based on these cases, it is unclear who
would be eligible for withholding of removal or CAT only. The
organization concluded by emphasizing that Congress created the
credible fear standard as a safeguard due to ``the life or death nature
of asylum,'' and described the proposed higher evidentiary standard as
``cruelly irresponsible.''
Response: In general, commenters appear to have confused multiple
rulemakings, as well as the existing legal differences between and
among asylum, statutory withholding of removal, and protection under
the CAT regulations. The Departments decline to adopt the commenters'
positions to the extent they are based on inaccurate or confused
understandings of the proposed rule and of the legal distinctions
between and among asylum, statutory withholding of removal, and
protection under the CAT regulations.
Contrary to commenters' claims, the change of the credible fear
standards for statutory withholding and protection under the CAT
regulations are unrelated to the Departments' other asylum-related
regulatory efforts, which are outside the scope of this rule, and the
current change is not intended to ``target'' aliens that are not
subject to those previous asylum regulations. See, e.g., Asylum
Eligibility and Procedural
[[Page 80293]]
Modifications, 84 FR 33829 (July 16, 2019); Aliens Subject to a Bar on
Entry Under Certain Presidential Proclamations; Procedures for
Protection Claims, 83 FR 55934 (Nov. 9, 2018). Further, the change in
standards has no bearing on how any alleged trauma is assessed during
the screening process by either asylum officers or immigration judges.
Adjudicators in both Departments have conducted these assessments for
many years and are trained and well-versed in assessing the credibility
of applicants, including accounting for any alleged trauma that may be
relevant.
As discussed in the NPRM, Congress did not require the same
eligibility standards for asylum, statutory withholding of removal, and
protection under the CAT in the ``credible fear'' screening process.
See 85 FR at 36268-71. In fact, the INA does not include any references
to statutory withholding of removal or protection under the CAT
regulations when explaining the ``credible fear'' screening process.
See INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also The Foreign
Affairs Reform and Restructuring Act of 1998 (``FARRA''), Public Law
105-277, 112 Stat. 2681-822.
Instead, the Departments have the authority to establish procedures
and standards for statutory withholding of removal and protection under
the CAT. See INA 103(a)(1), 8 U.S.C. 1103(a)(1) (``The Secretary of
Homeland Security shall be charged with the administration and
enforcement of [the INA] and all other laws relating to the immigration
and naturalization of aliens * * *.''); INA 241(b)(3)(A), 8 U.S.C.
1231(b)(3)(A); FARRA, Public Law 105-277, sec. 2242(b), 112 Stat. at
2681-822 (providing that ``the heads of the appropriate agencies shall
prescribe regulations to implement the obligations of the United States
under Article 3'' of CAT).
Using this authority, the Departments believe that, rather than
being ``unrealistic[ ]'' or ``unconscionabl[e]'' as commenters claim,
raising the standards of proof to a ``reasonable possibility'' during
screening for statutory withholding of removal and protection under the
CAT regulations better aligns the initial screening standards of proof
with the higher standards used to determine whether aliens are in fact
eligible for these forms of protection when applying before an
immigration judge. Further, as explained in the NPRM, this higher
standard will also serve to screen out more cases that are unlikely to
be meritorious at a full hearing, which will allow the overburdened
immigration system to focus on cases more likely to be granted. And,
contrary to commenters' claims, the NPRM did not claim that the use of
a single ``significant possibility'' standard complicates or delays the
expedited removal process.
The Departments recognize that a higher screening standard may make
it more difficult to receive a positive fear determination. However,
the Departments disagree with commenters that raising the screening
standard for statutory withholding of removal and CAT protection will
require aliens to submit significantly stronger documentary evidence.
At the credible fear interview stage, these claims rest largely on the
applicant's testimony, which does not require any additional evidence-
gathering on the applicant's part. See, e.g., 8 CFR 208.30(d),
208.30(e)(2) (describing the interview and explicitly requiring the
asylum officer to make a credible fear determination after ``taking
into account the credibility of the statements made by the alien in
support of the alien's claim'').
In addition, the Departments have long used the ``reasonable
possibility'' standard for reasonable fear determinations made under 8
CFR 208.31 and 8 CFR 1208.31, which cover certain classes of aliens who
are ineligible for asylum but who are eligible for statutory
withholding of removal and protection under the CAT regulations. See 8
CFR 208.31(a), 208.31(c), 1208.31(a), 1208.31(c).\18\ By changing the
standard in credible fear interviews for statutory withholding and CAT
protection, asylum officers will process such claims under the same
standard, providing additional consistency. Moreover, asylum officers
receive significant training and the Departments have no concerns that
they will be able to properly apply the standards set forth in this
rule. See 8 CFR 208.1(b) (ensuring training of asylum officers).
---------------------------------------------------------------------------
\18\ Commenters raised concerns about analogizing the use of the
``reasonable possibility'' screening standard in 8 CFR 208.31 and
1208.31, which applies only to certain categories of aliens.
However, the Departments referenced those regulations here and in
the NPRM merely to show that the ``reasonable possibility'' standard
has long existed in other contexts. See, e.g., 85 FR at 36270.
---------------------------------------------------------------------------
In short, it is both illogical and inefficient to screen for three
potential forms of protection under the same standard when two of those
forms have an ultimately higher burden of proof. The Departments' rule
harmonizes the screening of the various applications consistent with
their respective ultimate burdens and ensures that non-meritorious
claims are more quickly weeded out, allowing the Departments to focus
more of their resources on claims likely to have merit.
2.4.1. Specific Concerns With ``Significant Possibility'' Standard
Comment: One commenter claimed the rule would make it much harder
for asylum seekers subject to expedited removal to have their asylum
requests ``fully considered'' by an immigration judge. The commenter
noted that Congress intentionally set a low standard--``significant
possibility''--for the credible fear interview in order to prevent
legitimate refugees from being deported; one organization noted that
this standard was designed to ``filter out economic migrants from
asylum seekers.'' Commenters argued that the rule's redefinition of the
``significant possibility'' standard as ``a substantial and realistic
possibility of succeeding'' contradicts the language Congress set forth
in section 235(b)(1)(B)(v) of the Act, 8 U.S.C. 1225(b)(1)(B)(v) and is
thus ``ultra vires.''
One organization argued that the legislative history confirms
Congress's intent to protect ``bona fide'' asylum seekers. The
organization cited the Judiciary Committee report to the House version
of the bill that stated that ``[u]nder this system, there should be no
danger that an alien with a genuine asylum claim will be returned to
persecution'' and that ``the asylum officer should attempt to elicit
all facts relevant to the applicant's claim.'' The organization
included a statement from Senator Orrin Hatch noting that ``[t]he
conference report struck a compromise'' and the standard adopted was
``intended to be a low screening standard for admission into the usual
full asylum process.''
Finally, one organization stated that there is no ``sliding scale
for legal standards based on the volume of cases,'' emphasizing that
national security is irrelevant to the appropriate legal standard for
credible fear. The organization claimed that raising the standard in
order to ``better secure the homeland'' contradicts the clear meaning
of the statute and is ``ultra vires.''
Response: Again, commenters appear to have confused the existing
legal differences between and among asylum, statutory withholding of
removal, and CAT protection, and the Department declines to adopt the
commenters' positions to the extent they are based on inaccuracies or
misstatements of law.
The rule does not change the ``significant possibility'' standard
in credible fear interviews for asylum claims, which is set by statute.
See INA
[[Page 80294]]
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). As a result, asylum claims
will continue to be processed under the ``significant possibility''
standard in credible fear interviews. Instead, the rule only changes
the standard to a ``reasonable possibility'' for statutory withholding
of removal and CAT protection claims. Congress did not address the
standards for these claims in credible fear interviews and instead
explicitly focused on asylum claims. See generally INA 235(b), 8 U.S.C.
1225(b)(1)(B) (describing asylum interviews). Therefore, the
Departments are within their authority to change these standards, as
the use of a ``reasonable possibility'' standard does not contradict
the ``significant possibility'' language in the statute, which only
applies to asylum claims. See generally INA 103(a)(1), 8 U.S.C.
1103(a)(1) (``The Secretary of Homeland Security shall be charged with
the administration and enforcement of this chapter and all other laws
relating to the immigration and naturalization of aliens . . . .'');
INA 103(g)(2), 8 U.S.C. 1103(g)(2) (``The Attorney General shall
establish such regulations . . . as the Attorney General determines to
be necessary for carrying out this section.'').
Moreover, in response to commenters' concerns about the
``significant possibility'' asylum standard in credible fear
proceedings, the Departments note that this change does not raise the
standard; instead, it merely codifies existing policy and practice in
order to provide greater clarity and transparency to adjudicators and
affected parties. USCIS already uses the ``significant possibility''
definition in screening whether an asylum-seeker has established a
credible fear of persecution. See Memorandum from John Lafferty, Chief,
Asylum Div., U.S. Citizenship and Immigration Servs., Release of
Updated Asylum Division Officer Training Course (ADOTC) Lesson Plan,
Credible Fear of Persecution and Torture Determinations 2 (Feb. 28,
2014).
This definition is also consistent with Congress's intent to create
``a low screening standard for admission into the usual full asylum
process,'' 142 Cong. Rec. S11491 (daily ed. Sept. 27, 1996) (statement
of Senate Judiciary Committee Chairman Orrin Hatch), and with the
statutory text. See INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). For
example, the ``significant possibility'' standard does not require a
showing that it is more likely than not that the applicant can meet
their asylum burden in immigration court. Instead, the standard merely
requires the applicant establish ``a substantial and realistic
possibility of succeeding'' on their asylum claim, which in turn
requires a showing of as little as a 10 percent chance of persecution
on account of a protected ground. See I.N.S. v. Cardoza-Fonseca, 480
U.S. 421, 431-32 (1987). This additional language will help
adjudicators and affected parties to ensure that the proper screening
standard is used in the credible fear process.
2.5. Proposed Amendments to the Credible Fear Screening Process
Comment: One organization claimed that the rule would essentially
combine the credible fear interview with the merits hearing and require
an asylum officer to do both simultaneously. The organization contended
that this would leave applicants who turn themselves in to CBP with no
time to prepare and ``essentially no chance of success.'' The
organization emphasized that individuals arriving at the border are
often ``exhausted, stressed out, or ill,'' noting the high probability
that an individual will be physically, emotionally, or mentally unfit
for an interview that ``may determine whether he and his family lives
or dies.'' The organization claimed this situation has been aggravated
by the COVID-19 pandemic.
One organization stated that some individuals fleeing persecution
and torture ``bypass CBP'' because they lack knowledge about asylum or
believe they will be treated unfairly. The organization noted that some
of these individuals prepare asylum applications on their own (either
prior or subsequent to apprehension by ICE) and emphasized that these
cases, which fall ``outside the established procedures,'' are far more
difficult to regulate. The organization contended that, if the credible
fear and merits interviews are combined, poor asylum or CAT protection
seekers will be incentivized to evade CBP in order to try and obtain
help preparing an application. The organization emphasized that if the
Departments replace the existing procedure with one that is
``essentially impossible for many deserving people to use,'' their jobs
will become more difficult and their efforts less efficient.
One organization expressed concern regarding the specific language
in proposed 8 CFR 208.30(d)(1), claiming that it ``does not pass either
simple humanity or due process.'' The organization conceded that the
language of existing 8 CFR 208.30(d)(1) is identical, but claimed this
``does not excuse the proposed provision.'' Instead, the organization
claimed the language should read as follows: ``[i]f the [asylum]
officer conducting the interview determines that the alien is unable to
participate effectively in the interview because of illness, fatigue,
or other impediments, the officer shall reschedule the interview.''
One organization also emphasized that the rule would require asylum
officers to consider bars to asylum, including the internal relocation
bar,\19\ during initial fear screenings. The organization alleged that
the rule seems to build off the ``Asylum and Internal Relocation
Guidance'' issued by USCIS, which the organization claimed was posted
last summer ``without going through an NPRM.'' Another organization
claimed that this portion of the rule is ``contrary to law and existing
practice,'' noting that section 235(b) of the Act, 8 U.S.C. 1225(b),
requires asylum officers to determine whether there is a ``significant
possibility'' that an applicant could establish eligibility for asylum
in some future proceeding. One organization emphasized that most
credible fear applicants are unrepresented and have difficulty
understanding the complex internal relocation analysis, noting that
asylum seekers would likely need to include detailed country conditions
materials in support of their claims. In addition, the organization
claimed that adding ``an additional research burden'' on asylum
officers would be inefficient.
---------------------------------------------------------------------------
\19\ The Departments note that the possibility of internal
relocation is not a mandatory bar to asylum. Rather, it is part of
the underlying asylum eligibility determination and could rebut a
presumption of a well-founded fear after a finding of past
persecution, or be a reason to find that the applicant does not have
a well-founded fear of persecution. As it is still a consideration
during the credible fear screening, the Departments address the
comment in the response below.
---------------------------------------------------------------------------
One organization noted that the rule would require asylum officers
to determine whether an applicant is subject to one of the mandatory
bars under section 208(a)(2)(B)-(D) of the Act, 8 U.S.C. 1158(a)(2)(B)-
(D), and, if so, whether the bar at issue is also a bar to statutory
withholding of removal and withholding of removal under CAT. The
organization emphasized that each of the mandatory bars involves
intensive legal analysis and claimed that requiring asylum officers to
conduct this analysis during a screening interview would result in
``the return of many asylum seekers to harm's way.''
Another organization claimed this portion of the rule is
``unworkable,'' noting that the mandatory bars are heavily litigated
and often apply differently from circuit to circuit. The organization
alleged that the new
[[Page 80295]]
credible-fear analysis would require asylum officers to exceed their
statutory authority and would violate due process by mandating fact-
finding in a procedure that does not provide applicants with notice or
the opportunity to respond with evidence. One organization claimed that
``countless asylum-seekers could be erroneously knocked out of the
process based on hasty decisions, misunderstandings, and limited
information,'' noting that the existing rule ``errs in favor of
review.''
The organization also expressed concern that the rule would require
asylum officers to treat an individual's silence as a reason to deny an
immigration judge's review of a negative credible fear interview. The
organization emphasized that many asylum seekers do not understand what
is happening when they receive a negative credible fear determination
from an asylum officer and do not know what it means to seek review by
an immigration judge; as a result, many asylum seekers ``will simply
not answer the question.'' The organization noted that many of these
individuals are still ``tired and traumatized'' from their journey, and
some have been separated from their families.
The organization noted that, historically, asylum officers have
been required to request immigration judge review on behalf of
individuals who remain silent; however, the organization alleged that
the rule would ``reverse existing policy'' and require officers to
indicate that unresponsive individuals do not want review. The
organization noted that the NPRM does not include data on how many
asylum seekers succeed in their credible fear claims before an
immigration judge without specifically making a request to an asylum
officer; nor does the rule contain data on how many immigration judge
reviews are ``expeditiously'' resolved after the judge explains the
asylum seeker's rights and the individual chooses not to pursue review.
The organization claimed that its concerns are enhanced by the decision
to allow CBP officers, rather than fully trained USCIS asylum officers,
to conduct credible fear interviews. One organization emphasized that
it is unreasonable to assume that asylum seekers who decline to
expressly request further review are declining review by an independent
agency. The organization stated that ``[a]bsent a clear waiver of the
opportunity for review by an independent agency, it is reasonable to
assume that asylum seekers arriving at our borders wish to pursue all
available avenues of relief.''
One organization noted a statement from Senator Patrick Leahy,
which introduced a newspaper article that expressed concern that an
unenacted early version of IIRIRA ``gives virtually final authority to
immigration officers at 300 ports of entry to this country.'' 142 Cong.
Rec. S4461 (daily ed. May 1, 1996) (statement of Senator Patrick
Leahy). The organization also alleged that ``[g]iving one agency
unfettered power to decide whether an asylum seeker ever has a day in
court goes against the intent of Congress.''
Response: In general, most of the commenters' concerns are
speculative and fail to account for the fact-specific and case-by-case
nature of the interviews and reviews in question. Moreover, their
concerns tacitly question the competence, integrity, and
professionalism of the adjudicators conducting interviews and reviews--
professionals who are well-trained and experienced in applying the
relevant law in the context of these screenings and reviews.
The suggestion that aliens genuinely seeking refuge regularly evade
officials of the very government from whom they seek refuge is
unsupported by evidence. Nothing in the rule restricts or prohibits any
organization from providing assistance to any alien; instead, the
rule's focus is on assisting adjudicators with clearer guidance and
more efficient processes.
Additionally, many of the commenters failed to acknowledge the
multiple layers of review inherent in the screening process, which
reduces the likelihood of any errors related to consideration of the
facts of the claim or application of relevant law. See Thuraissigiam,
140 S.Ct. at 1965-66 (``An alien subject to expedited removal thus has
an opportunity at three levels to obtain an asylum hearing, and the
applicant will obtain one unless the asylum officer, a supervisor, and
an immigration judge all find that the applicant has not asserted a
credible fear.''). To the extent that commenters mischaracterized the
rule, provided comments that are speculative or unfounded, suggested
that the Departments should not follow the law, or ignored relevant
procedural protections that already address their concerns, the
Departments decline to adopt such comments.
The Departments disagree that this rule combines the credible fear
interview with a full hearing on an asylum application, or that the
credible fear interview represents the ``final'' adjudication of an
asylum application. This rule maintains the same ``significant
possibility'' standard for asylum officers in conducting a credible
fear interview with respect to screening the alien for eligibility for
asylum, and any alien who is found to have a credible fear is referred
to an immigration judge for asylum-and-withholding-only proceedings for
consideration of the relief application. See 8 CFR 208.30(g). This rule
does not change the fundamental structure of the credible fear process.
Instead, during the credible fear interview, the rule additionally
requires the asylum officer to consider internal relocation and
relevant asylum bars as part of his or her determination, and
separately to treat the alien's failure to request a review of a
negative fear determination as declining the request.
Regarding commenters' concerns about unrepresented aliens having
difficulty with the internal relocation analysis in the credible fear
process, the Departments note that aliens are able to consult with a
person of their choosing prior to their credible fear interview and
have that person present during the interview. See 8 CFR 208.30(d)(4).
Considering internal relocation in the credible fear screening context
is consistent with existing policy and practice. See 85 FR 36272.
Moreover, there is no reason to believe that an alien, in the course of
providing testimony regarding the facts of his or her claim, cannot
also provide testimony about his or her ability to internally relocate;
in fact, in many cases, an alien's relocation is already part of the
narrative provided in support of the alien's overall claim. In
addition, the Departments disagree that requiring asylum officers to
consider internal relocation is inefficient. To the contrary, as
current practice requires such issues to be adjudicated in section 240
removal proceedings, screening out cases subject to internal relocation
before requiring a lengthier proceeding before an immigration judge is
inherently more efficient. It also has a further salutary effect of
increasing the ability of adjudicators to address meritorious claims in
a more timely manner. Lastly, contrary to commenters' assertions, this
rule is unrelated to USCIS guidance on internal relocation, and any
issues relating to such guidance are outside the scope of this rule.
Regarding commenters' concerns about requiring asylum officers to
determine whether certain asylum bars apply during the credible fear
interview, the Departments note that asylum officers are well trained
in asylum law and are more than capable of determining whether long-
standing statutory bars apply, especially in the credible fear
screening context. INA
[[Page 80296]]
235(b)(1)(E), 8 U.S.C. 1235(b)(1)(E) (defining an asylum officer as one
who ``has had professional training in country conditions, asylum law,
and interview techniques comparable to that provided to full-time
adjudicators of applications under [INA 208, 8 U.S.C. 1158], and . . .
is supervised by an officer who [has had similar training] and has had
substantial experience adjudicating asylum applications.''); see
generally 8 CFR 208.1(b) (covering training of asylum officers).
Moreover, the statute requires asylum officers to determine whether
``the alien could establish eligibility for asylum under section 1158
of this title,'' which would by extension include the application of
the bars listed in section 1158 that are a part of this rule. See INA
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Further, asylum officers
already assess whether certain bars may apply to applications in the
credible fear context--they simply do not apply them under current
regulations. See Government Accountability Office, Actions Needed to
Strengthen USCIS's Oversight and Data Quality of Credible and
Reasonable Fear Screenings at 10 (Feb. 2020), https://www.gao.gov/assets/710/704732.pdf (``In screening noncitizens for credible or
reasonable fear . . . . [a] USCIS asylum officer is to determine if the
individual has any bars to asylum or withholding of removal that will
be pertinent if the individual is referred to immigration court for
full removal proceedings.''); U.S. Citizenship and Immigr. Serv.,
Lesson Plan on Credible Fear of Persecution and Torture Determinations
at 31 (2019), https://fingfx.thomsonreuters.com/gfx/mkt/11/10239/10146/2019%20training%20document%20for%20asylum%20screenings.pdf (``Even
though the bars to asylum do not apply to the credible fear
determination, the interviewing officer must elicit and make note of
all information relevant to whether a bar to asylum or withholding
applies or not.''). Lastly, responding to commenters' concerns that
such determinations would be ``final,'' this rule does not change the
existing process allowing for an immigration judge to review any
negative fear determination, which would include any bar-related
negative fear determination. 8 CFR 208.30(g); see also Thuraissigiam,
140 S.Ct. at 1965-66 (``An alien subject to expedited removal . . . has
an opportunity at three levels to obtain an asylum hearing, and the
applicant will obtain one unless the asylum officer, a supervisor, and
an immigration judge all find that the applicant has not asserted a
credible fear.'').
Regarding commenters' concerns that aliens do not understand the
credible fear process and, therefore, will refuse to indicate whether
they want an immigration judge to review their negative fear finding,
the Departments first note that if an alien requests asylum or
expresses a fear of return, the alien is given an M-444 notice,
Information about Credible Fear Interview, which explains the credible
fear process and the right to an attorney at no cost to the U.S.
Government. It would be unusual for an alien who has already undergone
an interview, relayed a claim of fear, answered questions from an
asylum officer about his or her claim, and continued to maintain that
he or she has a genuine fear of being returned to his or her country of
nationality to then--at the next step--be unaware of the nature of the
process when asked whether he or she wishes to have someone else review
the claim. The Departments further note that regulations require the
asylum officer to ask aliens whether they wish to have an immigration
judge review the negative credible fear decision. See 8 CFR 208.30(g)
(requiring the asylum officer to ``provide the alien with a written
notice of decision and inquire whether the alien wishes to have an
immigration judge review the negative decision, using Form I-869'').
And the relevant form states, ``You may request that an Immigration
Judge review this decision.'' See Form I-869, Record of Negative
Credible Fear Finding and Request for Review by Immigration Judge.
These procedures provide explicit informational protections to
individuals in the credible fear process, and treating refusals as
affirmative requests only serves to create unnecessary and undue
burdens on the immigration courts. Although the Departments do not
maintain data on how many individuals refuse to request immigration
judge review of a negative fear finding, the Departments believe it is
reasonable to require an individual to answer affirmatively when being
asked by an asylum officer if the individual wishes to have their
negative fear finding reviewed.
In response to a commenter's concern about 8 CFR 208.30(d)(1),
which allows an asylum officer to reschedule a credible fear interview
under certain circumstances, the Departments note that this rule does
not change any language in that subparagraph and, therefore, any
comments regarding that subparagraph are outside the scope of this
rule.
3. Form I-589, Application for Asylum and for Withholding of Removal,
Filing Requirements
3.1. Frivolous Applications
3.1.1. Allowing Asylum Officers To Make Frivolousness Findings
Comment: Commenters expressed a range of concerns regarding the
proposed changes to allow DHS asylum officers to make frivolousness
findings and deny applications or refer applications to an immigration
judge on that basis. 85 FR at 36274-75.
Commenters expressed concerns about asylum officers' training and
qualifications to make frivolousness findings. For example, at least
one commenter noted that these DHS officers are not required to earn
law degrees. Another organization disagreed with the NPRM's assertion
that asylum officers are qualified to make frivolousness determinations
because of their current experience making credibility determinations,
emphasizing that ``credibility and frivolous determinations differ
significantly.'' At least one organization noted that the applicant has
the burden of proof in a credibility determination while the government
bears the burden of proof in a frivolousness determination.
At least one organization emphasized that this authority is
currently only vested in immigration judges and the BIA, and commenters
expressed concern that allowing asylum officers to make frivolousness
findings improperly changes the role of asylum officers in the asylum
system. For example, one organization claimed that allowing asylum
officers to make frivolousness determinations ``improperly changes
their role from considering humanitarian relief, to being an
enforcement agent.'' Commenters noted a law professor's statement that
``allowing asylum officers to deny applications conflicts with a
mandate that those asylum screenings not be adversarial.'' Suzanne
Monyak, Planned Asylum Overhaul Threatens Migrants' Due Process, LAW
360 (June 12, 2020), https://www.law360.com/access-to-justice/articles/1282494/planned-asylum-overhaul-threatens-migrants-due-process (quoting
Professor Lenni B. Benson).
Commenters suggested that the rule would not require USCIS to allow
asylum applicants to address inconsistencies in their claims, alleging
that individuals appearing in non-adversarial proceedings before a DHS
officer would not be granted important procedural protections. One
organization cited both the U.S. Court of
[[Page 80297]]
Appeals for the Second Circuit and the BIA to support its claim that a
comprehensive opportunity to be heard makes sense in the frivolousness
context, noting that immigration enforcement is not limited to
initiating and conducting prompt proceedings that lead to removals at
any cost. Liu v. U.S. Dep't of Justice., 455 F.3d 106, 114 n.3 (2d Cir.
2006); Matter of S-M-J-, 21 I&N Dec. 722, 727, 743 (BIA 1997).
One organization stated that, although immigration judges would
have de novo review of findings by asylum officers, an adverse finding
is ``always part of the DHS toolbox'' in immigration court and is
considered by immigration judges.
Response: As stated in the proposed rule, the Departments find that
allowing asylum officers to make frivolousness findings in the manner
set out in the proposed rule and adopted as final in this rule will
provide many benefits to the asylum process, including
``strengthen[ing] USCIS's ability to root out frivolous applications
more efficiently, deter[ing] frivolous filings, and ultimately
reduc[][ing] the number of frivolous applications in the asylum
system.'' 85 FR at 36275.
The Departments disagree with commenters' allegations that asylum
officers are not qualified or trained to make frivolousness findings.
Instead, all asylum officers receive significant specialized ``training
in international human rights law, nonadversarial interview techniques,
and other relevant national and international refugee laws and
principles'' and also receive ``information concerning the persecution
of persons in other countries on account of race, religion,
nationality, membership in a particular social group, or political
opinion, torture of persons in other countries, and other information
relevant to asylum determinations.'' 8 CFR 208.1(b). Moreover, there is
no doubt that asylum officers are qualified to make significant
determinations regarding asylum claims, including the most important
determination--an adjudication on the merits regarding whether or not
an alien has demonstrated eligibility for asylum. See, e.g., 8 CFR
208.14(c) (``If the asylum officer does not grant asylum to an
applicant after an interview . . . the asylum officer shall deny,
refer, or dismiss the application . . . .''). Given asylum officers'
authority and qualifications to make determinations on the underlying
merits of asylum applications, the Departments find that they are
clearly qualified to make subsidiary determinations such as
frivolousness findings.\20\
---------------------------------------------------------------------------
\20\ Although not strictly applicable to asylum officers who
adjudicate asylum applications under section 208 of the Act, the
Departments note that the definition of an asylum officer in other
contexts as one who ``has had professional training in country
conditions, asylum law, and interview techniques comparable to that
provided to full-time adjudicators of applications'' under section
208 and is supervised by someone who has had ``substantial
experience'' adjudication asylum applications further supports the
determination that asylum officers are well-qualified to make
frivolousness determinations. INA 235(b)(1)(E) (8 U.S.C.
1225(b)(1)(E)).
---------------------------------------------------------------------------
Commenters are incorrect that the Departments analogized
credibility determinations to frivolousness findings. See 85 FR at
36275. Instead, the Departments discussed asylum officers' credibility
findings as background regarding the mechanisms currently used by
asylum officers to approach questions similar to those involving
frivolousness. Id. Nevertheless, the Departments disagree with
commenters' implication that asylum officers should not be permitted to
make frivolousness findings because the government bears the burden of
proof. Not only does the statute not assign a burden of proof to the
Departments regarding frivolousness findings, INA 208(d)(6), 8 U.S.C.
1158(d)(6), but for those not in lawful status, asylum officers'
frivolousness findings are subject to de novo review by an immigration
judge, and must simply be sufficiently supported.
Commenters are further incorrect that allowing asylum officers to
make frivolousness findings improperly converts the USCIS affirmative
application process from non-adversarial to adversarial. The purpose of
the non-adversarial interview is to ``elicit all relevant and useful
information bearing on the applicant's eligibility for asylum.'' 8 CFR
208.9(b) (emphasis added). There is nothing inherently contradictory--
or adversarial--in eliciting all relevant and useful information
regarding an applicant's eligibility for asylum and then determining,
based on that information, that the applicant is ineligible for asylum
because the applicant knowingly filed a frivolous application.
Moreover, a nonadversarial process does not mean that the asylum
officer simply has to accept all claims made by an alien as true; if
that were the case, an asylum officer could never refer an application
based on an adverse credibility determination. Further, equating the
nonadversarial asylum interview process with a prohibition on finding
an application to be frivolous is in tension with statutory provisions
allowing adjudicators of asylum applications to consider, inter alia,
``candor'' and ``falsehoods'' in assessing an applicant's credibility.
INA 208(b)(1)(B)(iii), 8 U.S.C. 1158(b)(1)(B)(iii).
In short, the Departments find that allowing asylum officers to
make frivolousness findings does not conflict with the requirement that
asylum officers conduct asylum interviews ``in a nonadversarial
manner.'' 8 CFR 208.9(b). Instead, asylum officers will consider
questions of frivolousness in the same manner that they consider other
questions of the applicant's eligibility for asylum, such as whether
the applicant has suffered past persecution or whether the applicant
fears harm on account of a protected ground. Just as interview
questions about these eligibility factors are appropriate topics for
asylum officers in the current interview process, questions and
consideration of frivolousness are similarly appropriate.
Regarding commenters' concerns about procedural protections for
aliens who appear before an asylum officer for an interview, the
Departments emphasize that both the proposed rule and this final rule
prohibit a frivolousness finding unless the alien has been provided the
notice required by section 208(d)(4)(A) of the Act, 8 U.S.C.
1158(d)(4)(A) of the consequences under section 208(d)(6) of the Act, 8
U.S.C. 1158(d)(6), of filing a frivolous asylum application. See 8 CFR
208.20(d), 1208.20(d). This requirement complies with the Act, which
does not require any further warning or colloquy in advance of a
frivolousness finding. Accordingly, while commenters are correct that
the rule does not require USCIS to allow asylum applicants to address
inconsistencies prior to a frivolousness finding or follow any other
delineated procedures, the Departments reiterate that, as stated in the
proposed rule, the procedural requirements provided by the rule for a
frivolousness finding comply with the Act's requirements. 85 FR at
36276-77.
Further, the Departments emphasize that, for aliens who lack legal
status and who are referred to an immigration judge because the asylum
officer did not grant asylum to the alien, see 8 CFR 208.14(c)(1),
USCIS asylum officers' frivolousness findings are not given effect and
are subject to an immigration judge's de novo review. 8 CFR 208.20(b).
Accordingly, for most, if not all, aliens who may be subject to a
frivolousness finding by an asylum officer, this further review is
effectively the procedural protection called for by commenters, as the
alien will be on
[[Page 80298]]
notice regarding the possible frivolousness finding and should be
prepared to and expect to explain the issues surrounding it.
The Departments agree with commenters that DHS trial attorneys in
immigration court may provide arguments regarding frivolousness in any
appropriate case. However, as also stated in the proposed rule, the
possibility of frivolousness findings in immigration court alone has
been insufficient to deter frivolous filings consistent with the
congressional intent behind section 208(d)(6) of the Act, 8 U.S.C.
1158(d)(6). 85 FR at 36275. Allowing asylum officers to also consider
and make determinations regarding whether an affirmative asylum
applicant's application is frivolous provides efficiencies not
available from consideration of questions of frivolousness by an
immigration judge alone, including providing immigration judges with a
more robust and developed written record regarding frivolousness. Id.
Finally, to the extent that commenters suggested the proposed
changes should not be implemented because they would make it easier to
detect asylum fraud and would harm aliens who submit fraudulent asylum
applications, the Departments do not find such suggestions compelling
enough to warrant deleting such changes. See Angov v. Lynch, 788 F.3d
893, 901, 902 (9th Cir. 2015) (noting ``an unfortunate reality that
makes immigration cases so different from all other American
adjudications: Fraud, forgery and fabrication are so common--and so
difficult to prove--that they are routinely tolerated''). Cases
involving asylum fraud are ``distressingly common,'' id. at 902, and
the Departments are committed to ensuring the integrity of immigration
proceedings by using all available statutory tools to root out such
fraud.
3.1.2. Changes to the Definition of ``Frivolous''
Comment: Commenters expressed a range of concerns with the rule's
changes to the definition of ``frivolous'' and the expanded scope of
applications that could qualify as such. One commenter claimed the rule
would make it easier for immigration judges and asylum officers to
``throw out'' asylum requests as frivolous.
At least one commenter noted that, prior to the enactment of
section 208(d)(6) of the Act 8 U.S.C. 1158(d)(6), a frivolous asylum
application was defined in the employment context as ``manifestly
unfounded or abusive'' and ``patently without substance.'' 85 FR at
36274. The commenter concluded that lowering this standard is ``ultra
vires and an abuse of discretion.''
Commenters noted that, to be considered frivolous, an application
must have been ``knowingly made,'' and the individual must have been
given notice at the time of filing pursuant to section 208(d)(4)(A) of
the Act 8 U.S.C. 1158(d)(4)(A). Commenters expressed concern that the
NPRM seeks to redefine the term ``knowingly'' to include ``willful
blindness'' toward frivolousness. At least one organization expressed
concern that the NPRM relies on Global-Tech Appliances, Inc. v. SEB
S.A., 563 U.S. 754, 769 (2011) to support its definition for
``knowingly,'' emphasizing that this case ``involved sophisticated
litigants represented by attorneys familiar with the intricacies of
American patent law'' and contending that it would be inappropriate to
hold asylum seekers to this standard. Commenters stated that the NPRM
does not adequately explain how ``willful blindness'' differs from
recklessness or negligence.
At least one organization expressed concern that the rule removes
the requirements that (1) a fabrication be deliberate; and (2) the
deliberate fabrication be related to a material element of the case.
The organization claimed the rule suggests that asylum seekers who are
unaware that an ``essential element'' is fabricated would be
permanently barred from immigration benefits. The organization noted
that the NPRM does not define ``essential'' but instead focuses on
``fabricated material evidence,'' emphasizing that, given the variance
of standards, courts have held that ``fabrication of material evidence
does not necessarily constitute fabrication of a material element,''
quoting Khadka v. Holder, 618 F.3d 996, 1004 (9th Cir. 2010).
Another organization stated that while ``[f]alse and fabricated
evidence is inappropriate,'' poor language skills and faulty memory can
``produce honest mistakes that look like falsification,'' emphasizing
that the rule's definition of ``frivolous'' provides the Departments
with ``numerous opportunities to pressure applicants.''
Commenters expressed particular concerns with the rule's changes so
that an application that lacks merit or is foreclosed by existing law
could result in a frivolousness finding, particularly because case law
involving asylum is constantly changing. For example, at least one
organization contended that the rule contradicts existing regulations
regarding a representative's duty to advocate for his or her client,
emphasizing that representatives are allowed to put forth ``a good
faith argument for the extension, modification, or reversal of existing
law or the establishment of new law.'' See 8 CFR 1003.102(j)(1).
Similarly, commenters alleged that the imposition of a permanent bar on
applicants who raise claims challenging existing law ``deters
representatives from putting forth nuanced arguments,'' contending that
a representative's ethical duty to make every argument on a client's
behalf could potentially subject the client to the permanent bar. In
addition, commenters argued that the ability of attorneys to make good
faith arguments has been ``crucial to modifying and expanding the
law,'' emphasizing that good faith arguments by representatives allow
asylum seekers to pursue ``a claim to the full extent of the law.'' One
organization stated that, by imposing penalties on individuals who make
good faith attempts to seek protection ``in light of contrary law based
on different jurisdictions,'' the rule ``undoes years of jurisprudence
in this field.''
Commenters also emphasized that the rule would expand when the
penalties for a frivolous filing may attach and would require
individuals who wish to challenge a denial of asylum in Federal court
to risk a finding that would bar any future immigration relief. One
commenter alleged that, should an immigration judge find an application
to be frivolous under the rule, the applicant would be ineligible for
all forms of immigration relief simply for ``making a weak asylum
claim.'' One organization expressed concern that, as a result, asylum
seekers would not seek relief for fear of losing their case and being
accused of submitting a frivolous application. One organization claimed
that the rule's frivolousness procedure is designed to ``instill fear
in applicants to keep them from applying.'' Another organization
emphasized that expediency is ``inappropriate'' in the context of a
determination that would ``subject the applicant to one of the harshest
penalties in immigration law.'' Commenters otherwise emphasized the
seriousness for applicants of frivolousness findings.
At least one organization called the rule ``exceptionally unfair,''
emphasizing that many asylum seekers are unrepresented and do not speak
English, making it difficult for them to understand the complexities of
``the ever-evolving law.'' The organization noted that many asylum
seekers fall prey to unscrupulous attorneys or notarios who file asylum
applications for improper purposes, arguing that it is
[[Page 80299]]
entirely unfair to penalize applicants in these types of situations.
Finally, at least one organization claimed that the rule would
increase the workload of immigration judges, as they would be forced to
determine whether the legal arguments presented sought to ``extend,
modify, or reverse the law'' or were merely foreclosed by existing law.
The organization argued that, because of the burdens already placed on
immigration judges, this expectation is unrealistic and ``adds another
layer to the litigation of referred asylum cases'' in immigration
court.
Response: In general, commenters on this point either
mischaracterized or misstated the proposed rule or relied solely on a
hypothetical and speculative ``parade of horribles'' that ignores the
actual text and basis of the rule. Contrary to commenters' concerns,
the Departments do not believe that the proposed rule allows
immigration judges or asylum officers to treat legitimate asylum
requests as frivolous. Instead, the rule establishes four limited
grounds for a frivolousness finding: Applications that (1) contain a
fabricated essential element; (2) are premised on false or fabricated
evidence unless the application would have been granted absent such
evidence; (3) are filed without regard to the merits of the claim; or
(4) are clearly foreclosed by applicable law. 8 CFR 208.20(c)(1)-(4),
1208.20(c)(1)-(4). In addition, the rule provides that an alien
``knowingly files a frivolous asylum application if . . . [t]he alien
filed the application with either actual knowledge, or willful
blindness, of the fact that the application'' was one of those four
types. 8 CFR 208.20(a)(2), 1208.20(a)(2).
These changes are not ultra vires or an abuse of discretion. The
Departments emphasize that the regulations interpret and apply the INA
itself, the relevant provisions of which postdate the regulation
defining frivolous as ``manifestly unfounded or abusive.'' In addition,
the INA does not define the term ``frivolous,'' see INA 208(d)(6), 8
U.S.C. 1158(d)(6), and the Departments possess the authority to
interpret such undefined terms. See INA 103(a)(3), (g)(2), 8 U.S.C.
1103(a)(3), (g)(2); see also Chevron, 467 U.S. at 866 (``When a
challenge to an agency construction of a statutory provision, fairly
conceptualized, really centers on the wisdom of the agency's policy,
rather than whether it is a reasonable choice within a gap left open by
Congress, the challenge must fail.''). The Departments believe that the
prior regulatory definition artificially limited the applicability of
the frivolous asylum bar because it did not fully address the different
types of frivolousness, such as abusive filings, filings for an
improper purpose, or patently unfounded filings.
Regarding the inclusion of willful blindness in determining what
applications will be considered knowingly frivolous, the Departments
reiterate that the inclusion of a willful blindness standard as part of
a ``knowing'' action is consistent with long-standing legal doctrine:
The doctrine of willful blindness is well established in
criminal law. Many criminal statutes require proof that a defendant
acted knowingly or willfully, and courts applying the doctrine of
willful blindness hold that defendants cannot escape the reach of
these statutes by deliberately shielding themselves from clear
evidence of critical facts that are strongly suggested by the
circumstances. The traditional rationale for this doctrine is that
defendants who behave in this manner are just as culpable as those
who have actual knowledge. . . . It is also said that persons who
know enough to blind themselves to direct proof of critical facts in
effect have actual knowledge of those facts. . . .
Global-Tech Appliances, Inc., 563 U.S. at 766 (internal citations
omitted); \21\ see also, e.g., United States v. Caraballo-Rodriguez,
726 F.3d 418 (3d Cir. 2013) (noting that ``knowledge'' can be
demonstrated by actual knowledge or willful blindness.); United States
v. Perez-Melendez, 599 F.3d 31, 41 (1st Cir. 2010) (``Willful blindness
serves as an alternate theory on which the government may prove
knowledge.'').
---------------------------------------------------------------------------
\21\ The Departments disagree with commenters' concerns that
Global-Tech is an inappropriate case to cite given the complexity of
the underlying dispute. Instead, this case provides a clear and
concise summary of the willful blindness standard, which is separate
and apart from the underlying facts or adjudication.
---------------------------------------------------------------------------
The doctrine of willful blindness applies in many civil proceedings
as well. See Global-Tech Appliances, 563 U.S. at 768 (``Given the long
history of willful blindness and its wide acceptance in the Federal
Judiciary, we can see no reason why the doctrine should not apply in
civil lawsuits for induced patent infringement under 35 U.S.C.
271(b).''). Given this background, if Congress did not wish to allow
for willfully blind actions to satisfy the ``knowing'' requirement of
section 208(d)(6) of the Act, 8 U.S.C. 1158(d)(6), Congress could have
expressly provided a definition of ``knowingly'' in the Act. Cf. Perrin
v. United States, 444 U.S. 37, 42 (1979) (``A fundamental canon of
statutory construction is that, unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common meaning.'')
(citations omitted). Due to Congress's silence, however, the
Departments find that the inclusion of willful blindness, as it is
generally interpreted, is a reasonable interpretation that better
aligns the regulations with congressional intent to limit and deter
frivolous applications.
Regarding the four grounds for finding an asylum application
frivolous at 8 CFR 208.20(c) and 1208.20(c), the Departments emphasize
that an application will not be found to be frivolous unless the alien
knew, or was willfully blind to the fact, that the application met one
of the four grounds. Accordingly, commenters are incorrect that an
alien who does not know that an essential element is fabricated will be
at risk of an immigration judge finding that his or her application is
frivolous. Similarly, an alien who submits a claim that is clearly
foreclosed by the applicable law but who, as noted by commenters, does
not know that the claim is so clearly foreclosed, would not have his or
her claim found frivolous on that basis.\22\
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\22\ As 85 percent of asylum applicants in immigration
proceedings have representation, the likelihood of an alien alone
knowingly making an argument that is foreclosed by law is relatively
low as both a factual and legal matter. See EOIR, Current
Representation Rates (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1062991/download.
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The Departments disagree that the rule will enable the Departments
to ``pressure'' applicants who make mistakes of fact in the context of
their application. Two of the bases related to fabricated elements or
evidence, neither of which can be characterized appropriately as a
mistake of fact. The other two bases go to the merits of the case or to
applicable law, and neither of those turn on a mistake of fact.
One commenter expressed concern about the NPRM's proposed change,
in the context of the definition of frivolous, from a fabricated
``material'' element to a fabricated ``essential'' element. The
existing regulatory text provides that ``an asylum application is
frivolous if any of its material elements is deliberately fabricated'';
under the NPRM, an application that contained a fabricated ``essential
element'' might have been found frivolous. The Departments acknowledge
that the NPRM indicated that it was maintaining the prior definition of
``frivolous,'' which was premised on a fabricated ``material'' element,
85 FR at 36275, but then used the word ``essential'' in lieu of
``material'' in the proposed regulatory text itself. Although the
Departments do not perceive a relevant difference between the two
phrasings, they are reverting to the use of ``material'' in this
context in the final rule to avoid any confusion.
[[Page 80300]]
Finally, commenters were particularly concerned about the
frivolousness grounds covering claims that lack merit or are foreclosed
by existing law. However, commenters' concerns are not based on the
actual rule. As explained in the NPRM, an unsuccessful claim does not
mean that the claim is frivolous. See 85 FR at 36273-77. For example,
arguments to extend, modify, or reverse existing precedent are not a
basis for a frivolousness finding under the ``clearly foreclosed by
applicable law'' ground. 85 FR at 36276. Similarly, as discussed supra,
both the relatively low numbers of pro se asylum applicants in
immigration court proceedings and the requirement that a frivolous
asylum application be ``knowingly'' filed will likely make
frivolousness findings uncommon for pro se aliens under the ``clearly
foreclosed by applicable law'' ground. Moreover, the proposed
definition is fully consistent with the long-standing definition of
``frivolous'' behavior as applied in the context of practitioner
discipline. See 8 CFR 1003.102(j)(1) (``A practitioner engages in
frivolous behavior when he or she knows or reasonably should have known
that his or her actions lack an arguable basis in law or in fact, or
are taken for an improper purpose, such as to harass or to cause
unnecessary delay.''). In other words, the bases for finding an asylum
application frivolous do not limit ethical attorneys' conduct in the
manner described by commenters.
As some commenters noted, however, some aliens may hire
unscrupulous representatives or notarios who file applications for
improper purposes. While the Departments are sympathetic to aliens who
are victims of these unethical practices, the Departments note that, as
described below in Section II.C.3.2 of this preamble, aliens must sign
each asylum application attesting to the application's accuracy and
acknowledging the consequences of filing a frivolous application;
moreover, ``[t]he applicant's signature establishes a presumption that
the applicant is aware of the contents of the application.'' 8 CFR
208.3(c)(2), 1208.3(c)(2). An alien may later file a motion to reopen
premised on ineffective assistance of counsel \23\ or pursue other
subsequent avenues of redress against unscrupulous individuals, but the
Departments find that an alien should not automatically be immune from
the consequences of an asylum application he or she held out as
accurate.\24\ To offer such immunity would create moral hazard. It
would encourage aliens not to read or familiarize themselves with the
contents of their applications, thereby subverting both the efficiency
and accuracy of asylum adjudications. Moreover, the requirement that a
frivolous asylum application be ``knowingly'' filed also ensures that
only genuinely culpable--or co-conspirator--aliens will face the full
consequences associated with these unethical practices. Cf. United
States v. Phillips, 731 F.3d 649, 656 (7th Cir. 2013) (``It is careless
to sign a document without reading it, but it is a knowing adoption of
its contents only if the signer is playing the ostrich game (`willful
blindness'), that is, not reading it because of what she knows or
suspects is in it.'').
---------------------------------------------------------------------------
\23\ See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) (setting
out requirements for motions to reopen due to ineffective assistance
of counsel allegations).
\24\ The Departments further note that purposefully filing
meritless asylum applications, including for the purposes of causing
DHS to initiate removal proceedings, violates the EOIR rules of
professional conduct and constitutes behavior that may result in
professional sanctions. See In re Bracamonte, No. D2016-0070 (July
1, 2020), https://www.justice.gov/eoir/page/file/1292646/download
(entering into a settlement agreement with a practitioner who
``acknowledges that it was improper to file asylum applications
without an indicated basis for asylum or an indication as to any
asylum claim, to cancel or otherwise advise clients to fail to
appear for asylum interviews, and to not demonstrate a clear
intention to pursue an asylum claim, in order to cause DHS to issue
a Notice to Appear to his clients'').
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The Departments disagree that the changes, including consideration
of legal arguments regarding whether an asylum application was premised
on a claim that was foreclosed by existing law, will increase the
workload of immigration judges. As an initial point, immigration judges
are already accustomed to both making frivolousness determinations and
to assessing whether claims are foreclosed by applicable law; indeed,
immigration judges are already required to apply precedent in asylum
cases, even when a frivolousness finding is not at issue. Thus, the
intersection of those two streams of decision making does not represent
any additional adjudicatory burden. Further, the rule does not mandate
that immigration judges make a determination in all cases, and many
cases will not factually or legally lend themselves to a need to
wrestle with close calls and complex determinations of whether an
application was ``clearly foreclosed by applicable law'' due to the
rest of the context of the application or the case. Finally, commenters
also failed to consider that the direct inclusion of applications that
are clearly foreclosed by applicable law as a possible basis for
frivolousness findings may cause secondary efficiencies by
disincentivizing the filing of meritless asylum applications in the
first instance--applications that already take up significant
immigration court resources.
3.1.3. Other Concerns With Regulations Regarding Frivolous Applications
Comment: Commenters expressed concern with the rule's changes to
the procedural requirements that must be satisfied before an
immigration judge may make a frivolousness finding. For example,
commenters noted that the rule would allow immigration judges to make
frivolousness findings without providing an applicant with additional
opportunities to account for perceived issues with his or her claim.
Similarly, an organization alleged that immigration judges would not
have to provide an opportunity for applicants to meaningfully address
the frivolousness indicators found by an asylum officer. Commenters
stated that the rule conflicts with Matter of Y-L-, 24 I&N Dec. at 155,
emphasizing that the NPRM only requires that applicants be provided
notice of the consequences of filing a frivolous application. At least
one organization claimed the rule, by not requiring immigration judges
to first provide an opportunity to explain, assumes that ``applicants
know what a judge would consider `meritless' or implausible.'' The
organization contested the NPRM's assertion that an asylum applicant
``already . . . knows whether the application is . . . meritless and is
aware of the potential ramifications,'' claiming instead that
applicants often lack a sophisticated knowledge of immigration law. See
85 FR at 36276.
Response: As stated in the proposed rule, the only procedural
requirement Congress included in the Act for a frivolousness finding is
the notice requirement at section 208(d)(4)(A) of the Act, 8 U.S.C.
1158(d)(4)(A). 85 FR at 36276. In addition, the asylum application
itself provides notice that an application may be found frivolous and
that a frivolousness finding results in significant consequences. Id.
The law is clear on this point. See, e.g., Niang v. Holder, 762 F.3d
251, 254-55 (2d Cir. 2014) (``Because the written warning provided on
the asylum application alone is adequate to satisfy the notice
requirement under 8 U.S.C. 1158(d)(4)(A) and because Niang signed and
filed his asylum application containing that warning, he received
adequate notice warning him against filing a frivolous application.'').
Thus, every alien who signs and files an asylum application has
received the
[[Page 80301]]
notice required by section 208(d)(4)(A) of the INA, 8 U.S.C.
1158(d)(4)(A).
Accordingly, commenters are correct that the rule's changes allow
immigration judges to make frivolousness findings without the
procedural requirements required by the current regulation and
attendant case law. But the regulation and case law are not required by
the Act, and have not been successful in preventing the filing of
frivolous applications. To the extent commenters are correct that the
rule conflicts with Matter of Y-L-, that decision is premised on the
existing regulatory language that the Departments are revising. Thus,
as the Departments noted in the proposed rule, this rule would overrule
Matter of Y-L- and any other cases that rely on the same reasoning or
now-revised regulatory language. 85 FR at 36277.
Comment: At least one organization expressed its belief that DHS
could institute frivolousness procedures more directly related to DHS's
adjudication of employment authorization requests (``EADs''). For
example, the commenter noted that there is ``no explanation'' for why
DHS cannot simply conduct a prima facie review of an I-589 filing prior
to granting an EAD application or scheduling the I-589 interview. The
organization claimed that, if the concern is the time and expense
dedicated to ``clearly fraudulent'' applications, DHS could devise a
policy to screen for indicators that the application itself lacks merit
or supporting documentation. The organization contended that DHS does
this with other benefit applications and is not prohibited from issuing
Requests for Evidence or Notices of Intent to Deny to affirmative
asylum applicants prior to an interview.
Response: Although the Departments appreciate this comment and DHS
may evaluate it further as an additional avenue to protect the
integrity of the asylum adjudication process, the Departments find that
the changes set out in the proposed rule better align with
congressional intent and are more efficient than a secondary process
tied to the adjudication of EADS. Divorcing the question of
frivolousness from the underlying adjudication of the application
itself would potentially undermine Congress's clear direction that
aliens face consequences for filing frivolous asylum applications. INA
208(d)(6), 8 U.S.C. 1158(d)(6). Moreover, asylum officers and
immigration judges, the officials in the asylum system who are trained
to review and adjudicate applications for asylum, are best positioned
to make the sorts of determinations that the commenter suggests should
instead be made by the DHS officials adjudicating EAD requests.
Comment: At least one organization alleged that the rule, ``perhaps
recognizing its own harshness,'' claims to ``ameliorate the
consequences'' by allowing applicants to withdraw their application(s)
before the court with prejudice, accept a voluntary departure order,
and leave the country within 30 days. The organization contended that,
rather than ameliorating the consequences of a frivolous filing, these
measures essentially replicate them in severity and permanence.
Response: Despite commenters' concerns, the Departments emphasize
that this option to avoid the consequences of a frivolousness finding
is a new addition to the regulations and provides applicants with a
safe harbor not previously available. The Departments believe that the
conditions are strict but reasonable and fair when compared with the
alternative: The severe penalty for filing a frivolous application, as
recognized by Congress at section 208(d)(6) of the Act, 8 U.S.C.
1158(d)(6). Further, the Departments disagree that the consequences of
withdrawing an application are of the same severity as a frivolousness
finding because an alien who withdraws an application will be able to
leave the United States without a removal order and seek immigration
benefits from abroad, while an alien who is found to have submitted a
frivolous application is ``permanently ineligible for any benefits''
under the Act. INA 208(d)(6), 8 U.S.C. 1158(d)(6).
Comment: One organization emphasized that, although the NPRM claims
that broadening the definition of frivolous would root out ``unfounded
or otherwise abusive claims,'' the NPRM does not include any evidence
of large numbers of pending frivolous applications.
Response: Congress laid out consequences for filing a frivolous
asylum application at section 208(d)(6) of the Act, 8 U.S.C.
1158(d)(6), demonstrating the importance of the issue. There is no
precise data threshold for a regulation that implements a clear
statutory priority. Moreover, Federal courts have recognized both the
extent of asylum fraud and the fact that the Government does not catch
all of it. Angov, 788 F.3d at 902 (``Cases involving fraudulent asylum
claims are distressingly common. . . . And for every case where the
fraud is discovered or admitted, there are doubtless scores of others
where the petitioner gets away with it because our government didn't
have the resources to expose the lie.''). Indeed, as the Departments
noted in the NPRM, the prior definition did not adequately capture the
full spectrum of claims that would ordinarily be deemed frivolous, 85
FR at 36274, making statistics based on the prior definition either
misleading or of minimal probative value.
The Departments note the record numbers of asylum applications
filed in recent years, including 213,798 in Fiscal Year 2019, up from
the then-previous record of 82,765 in Fiscal Year 2016. EOIR, Total
Asylum Applications (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1106366/download. Given this significant increase in
applications--which almost certainly means an increase in frivolous
applications--and the corresponding increase in adjudications, the
Departments believe it is important to ensure the regulations best
reflect congressional intent and deter the submission of frivolous
applications that delay the adjudication of meritorious cases.
Comment: Another organization expressed particular concern for
children seeking asylum, noting that, although the TVPRA requires
unaccompanied children's claims to be heard by asylum officers, the
rule's expansion of a ``frivolous'' claim would result in the denial of
meritorious claims for children who are unrepresented and ``unable to
decipher complex immigration law.'' The organization contended that,
because the rule would permit asylum officers who determine that a
child's claim is ``frivolous'' to refer the case to immigration court
without examining the merits of the claim, unaccompanied children
``would be forced into adversarial proceedings before an immigration
judge in clear violation of the TVPRA and in a manner that would
subject them to all of the harms attendant to adversarial hearings
where there is no guarantee of representation.''
Similarly, at least one organization emphasized that the ``safety
valve'' of allowing children to accept withdrawal conditions to avoid
the consequences of a frivolousness finding is illusory, and may
pressure children to waive valuable rights.
Response: Again, the Departments note that these concerns generally
are not rooted in any substantive evidence and either mischaracterize
or misstate the proposed rule. The Departments find the safeguards in
place for allowing asylum officers to make a finding that an asylum
application is frivolous are sufficient to protect unaccompanied alien
children (``UAC'') in the application process. Even if an asylum
officer finds an application is frivolous,
[[Page 80302]]
the application is referred to an immigration judge who provides review
of the determination. The asylum officer's determination does not
render the applicant permanently ineligible for immigration benefits
unless the immigration judge or the BIA also make a finding of
frivolousness. Id. Further, asylum officers and immigration judges
continue to use child-appropriate procedures taking into account age,
stage of language development, background, and level of
sophistication.\25\ Finally, to be found frivolous, an application must
be knowingly filed as such, and the Departments anticipate that very
young UACs will typically not have the requisite mental state to
warrant a frivolousness finding.
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\25\ For further discussion of the intersection of the rule and
the TVPRA, see section II.C.6.10.
---------------------------------------------------------------------------
Comment: At least one commenter appeared to express concern that
the rule includes all applications submitted after April 1, 1997, as
those which could potentially be deemed frivolous.
Response: To the extent the commenter is concerned about frivolous
applications in general dating back to April 1, 1997, the Departments
note that DOJ first implemented regulations regarding frivolous asylum
applications on March 6, 1997, effective April 1, 1997. Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct
of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10344 (Mar. 6,
1997). The April 1, 1997 effective date was enacted by Congress in 1996
through IIRIRA. See IIRIRA, Public Law 104-208, sec. 604(a), 110 Stat.
3009, 3009-693. Thus, all asylum applications filed on or after April
1, 1997, have been subject to a potential penalty for frivolousness for
many years.
The NPRM made clear, however, that the new regulatory definition of
frivolous applies only to applications filed \26\ on or after the
effective date of the final rule. To provide further clarification on
this point, the Departments made several non-substantive edits to the
regulatory text at 8 CFR 208.20 and 8 CFR 1208.20 in the final rule to
clarify the temporal applicability of the existing definition of
frivolousness and the prospective application of the definition
contained in the rule. Thus, the commenters apparent retroactivity
concerns about the definition of a frivolous application have been
addressed. For further discussion of the rule's retroactive
applicability, see Section II.C.7 of this preamble.
---------------------------------------------------------------------------
\26\ This includes applications filed in connection with a
motion to reopen on or after the effective date of the rule or
applications filed on or after the effective date of the rule after
proceedings have been reopened or recalendared.
---------------------------------------------------------------------------
3.2. Pretermission of Legally Insufficient Applications
3.2.1. Pretermission and the INA
Comment: Commenters stated that allowing immigration judges to
pretermit applications conflicts with multiple sections of the INA and
is not a ``reasonable'' interpretation of the INA.
Commenters cited section 208(a)(1) of the Act, 8 U.S.C. 1158(a)(1),
alleging that the phrase ``may apply for asylum'' should be broadly
construed. Commenters also noted that the statute requires the
establishment of a procedure for considering asylum applications. INA
208(d)(1), 8 U.S.C. 1158(d)(1). Commenters claimed that allowing for
the pretermission of asylum applications does not satisfy this required
procedure and is an ``unreasonable interpretation'' of the statute.
Commenters stated that the rule violates section 240(b)(1) of the
Act, 8 U.S.C. 1229a(b)(1), which states that ``[t]he immigration judge
shall administer oaths, receive evidence, and interrogate, examine, and
cross-examine the alien and any witnesses.'' Commenters stated that the
rule violates this requirement by ``requiring immigration judges to
abandon their essential function of examining the noncitizen about
their application for relief.''
Similarly, commenters stated that the rule violates section
240(b)(4)(B) of the Act, 8 U.S.C. 1229a(b)(4)(B), which states that
``the alien shall have a reasonable opportunity to examine the evidence
against the alien, to present evidence on the alien's own behalf, and
to cross-examine witnesses presented by the Government.'' Commenters
believe the rule violates this provision because it denies aliens the
ability to present and examine evidence on their own behalf, including
their own credible testimony.
Finally, commenters stated that the rule violates section 240(c)(4)
of the Act, 8 U.S.C. 1229a(c)(4), which states that, inter alia, ``the
immigration judge shall weigh the credible testimony along with other
evidence of record'' when determining whether an alien has met his or
her burden of proof on an application for relief. INA 240(c)(4)(B), 8
U.S.C. 1229a(c)(4)(B).
Commenters also disagreed with the Departments that allowing
pretermission of applications would not conflict with the legislative
history of IIRIRA. See 85 FR at 36277 n.26 (noting statements in H.R.
Rep. No. 104-469, part 1 (1996) regarding balancing the need for the
alien to provide sufficient information on the application with the
need for the alien's application to be timely). Commenters stated that
the rule creates additional burdens for aliens with regard to
submission and preparation of the Form I-589.
Response: Allowing pretermission of asylum applications in the
manner set out in this rule does not violate the INA. As an initial
point, the regulations have long allowed immigration judges to
pretermit asylum applications when certain grounds for denial exist.
See 8 CFR 1240.11(c)(3).\27\ Additionally, courts have affirmed the
pretermission of legally deficient asylum applications. See, e.g., Zhu
v. Gonzales, 218 F. App'x 21, 23 (2d Cir. 2007) (``Here, the IJ alerted
Zhu early in the proceedings that his asylum claim might be
pretermitted if he failed to illustrate a nexus to a protected ground,
and granted him a 30-day continuance in which to submit a brief
addressing the nexus requirement. When Zhu had neither submitted a
brief, nor requested an extension of the deadline, after nearly 60
days, the IJ acted within his discretion in pretermitting the asylum
claim.''). As discussed further below, the pretermission of legally
deficient asylum applications is consistent with existing law, and
immigration judges already possess authority to take any action
consistent with their authorities under the law that is appropriate and
necessary for the disposition of cases, 8 CFR 1003.10(b), to generally
take any appropriate action consistent with applicable law and
regulations, id. 1240.1(a)(1)(iv), and to regulate the course of a
hearing, id. 1240.1(c). Accordingly, the authority of an immigration
judge to pretermit an asylum application is well-established even prior
to the proposed rule.\28\
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\27\ The text of 8 CFR 1240.11(c)(3) references, inter alia, the
mandatory denial of an asylum application pursuant to 8 CFR 1208.14.
In turn, 8 CFR 1208.14(a) references 8 CFR 1208.13(c), which lists
the specific grounds for the mandatory denial of an asylum
application, including those listed in INA 208(a)(2) and (b)(2) (8
U.S.C. 1158(a)(2) and (b)(2)). Some of those grounds may require a
hearing to address disputed factual issues, but some involve purely
legal questions--e.g. INA 208(b)(2)(A)(ii) and (B)(i) (8 U.S.C.
1158(b)(2)(A)(ii) and (B)(i)) (an alien convicted of an aggravated
felony is ineligible for asylum)--and, thus, may be pretermitted
without a hearing.
\28\ The National Association of Immigration Judges (``NAIJ''),
the union which formerly represented non-supervisory immigration
judges, opposed the rule on general grounds but did not take a
position on this specific provision. A. Ashley Tabadorr, Comment by
the National Association of Immigration Judges, (July 15, 2020),
https://www.naij-usa.org/images/uploads/newsroom/2020.07.15.00.pdf
(``NAIJ's comment to the proposed rulemaking takes no position on
what the law should be or how it is to be interpreted.'').
Nevertheless, individual immigration judges have, on occasion,
pretermitted legally-deficient asylum applications even prior to the
issuance of the proposed rule.
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[[Page 80303]]
Further, regarding sections 208(a)(1) and 208(d)(1) of the Act, 8
U.S.C. 1158(a)(1) and (d)(1), nothing in the rule regarding the
pretermission of applications affects the ability of aliens to apply
for asylum, and this rule adds to the already robust procedures in
place for the consideration and adjudication of applications for
asylum. Instead, pretermission establishes an efficiency for the
adjudication of applications for asylum that have been submitted for
consideration and is utilized in a similar fashion as summary decision
is used in other DOJ immigration-related proceedings, see 28 CFR 68.38,
and as summary judgment is used in Federal court proceedings, see Fed.
R. Civ. P. 56.
Similarly, pretermission of asylum applications in the manner set
out in this rule does not violate any provision of section 240 of the
Act, 8 U.S.C. 1229a. First, section 240(b)(1) of the Act, 8 U.S.C.
1229a(b)(1), authorizes immigration judges to ``interrogate, examine,
and cross-examine the alien and any witnesses'' but does not establish
a mandatory requirement for them to do so in every case on every
application or issue. Further, it is settled law that immigration
judges may pretermit applications for relief in other contexts. See,
e.g., Matter of J-G-P-, 27 I&N Dec. 642, 643 (BIA 2019) (explaining
that the immigration judge granted DHS's motion and pretermitted the
respondent's application for cancellation of removal due to the
respondent's disqualifying criminal conviction); Matter of Moreno-
Escobosa, 25 I&N Dec. 114 (BIA 2009) (reviewing questions of
eligibility for a waiver of inadmissibility under former section 212(c)
of the Act (8 U.S.C. 1182(c) (1994)) following an immigration judge's
pretermission of the respondent's application). Second, the rule allows
the applicant a ``reasonable opportunity'' to present evidence on his
or her own behalf before pretermission as an immigration judge would
not pretermit an application without either the time expiring for the
alien to respond to DHS's motion or the judge's notice. Similarly, the
alien would be afforded the opportunity to present evidence, including
written testimony, on their own behalf prior to an immigration judge's
decision to pretermit an application, in accordance with section
240(b)(4)(B) and (c)(4) of the Act, 8 U.S.C. 1229a(b)(4)(B) and (c)(4).
Regarding the legislative history of IIRIRA, the Departments find
that allowing pretermission in the manner set out in the proposed rule
and this final rule does not conflict with the legislative history of
IIRIRA. First, regarding the statement in the House report cited in the
proposed rule, the Departments note that at that point, the House
legislation would have imposed a 30-day filing deadline for asylum
applications. See H.R. Rep. No. 104-469, pt. 1, at 259 (1996).
Accordingly, the Departments find that congressional statements
suggesting lower requirements for specificity in an asylum application
were based on a concomitant suggestion that an application should be
filed within 30 days and were correspondingly obviated by the longer
one-year filing deadline ultimately enacted by IIRIRA. INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). Second, there is no discussion in
the IIRIRA conference report that similarly encourages a condensed
application for the sake of expediency. See generally H.R. Rep. No.
104-828 (1996) (conference report). Finally, the Departments reiterate
that, as stated in the proposed rule, the alien would only be expected
to provide ``enough information to determine the basis of the alien's
claim for relief and if such a claim could be sufficient to demonstrate
eligibility.'' 85 FR at 36277 n.26. Indeed, the Departments expect that
aliens who complete the Form I-589, Application for Asylum and for
Withholding of Removal, in accordance with the instructions and provide
all information requested by the form would provide sufficient
information for the prima facie determination, just as it does in the
context of a motion to reopen. See INS v. Abudu, 485 U.S. 94, 104
(1988) (``There are at least three independent grounds on which the BIA
may deny a motion to reopen. First, it may hold that the movant has not
established a prima facie case for the underlying substantive relief
sought.'') Further, an alien would be able to provide additional
information as desired in response to the DHS motion or immigration
judge notice regarding possible pretermission. In short, a requisite
prima facie showing for an asylum application is not an onerous burden,
and the Departments disagree with the commenter that allowing
pretermission presents any additional mandatory burden on the alien
beyond that which is already required by the asylum application itself.
3.2.2. Pretermission and the Regulations
Comment: Commenters stated that allowing pretermission of
applications in the manner set out in the proposed rule violates the
other regulatory provisions, including 8 CFR 1240.1(c), 8 CFR
1240.11(c)(3), and 8 CFR 1240.11(c)(3)(iii). Regarding 8 CFR 1240.1(c)
(``The immigration judge shall receive and consider material and
relevant evidence . . . .''), commenters noted that pretermission would
foreclose consideration of an asylum seeker's testimony, which is often
one of the most important pieces of evidence, as well as witness
testimony. Regarding 8 CFR 1240.11(c)(3) (``Applications for asylum and
withholding of removal so filed will be decided by the immigration
judge . . . after an evidentiary hearing to resolve factual issues in
dispute.''), commenters emphasized the regulation's requirement that an
immigration judge's decision be made ``after an evidentiary hearing''
and noted that the factual and legal issues in an asylum claim are
often interconnected. Regarding 8 CFR 1240.11(c)(3)(iii) (``During the
removal hearing, the alien shall be examined under oath on his or her
application and may present evidence and witnesses in his or her own
behalf''), commenters stated that pretermission would deprive the alien
of the opportunity to meet his or her burden of proof through
testimony, which may be sufficient for the alien to sustain the burden
of proof without corroboration.
Commenters stated that allowing pretermission would make into
surplusage the provisions of the regulations regarding the authority of
the immigration judge to consider evidence (8 CFR 1240.11(c) and
control the scope of the hearing (c)(3)(ii)).
Response: Allowing pretermission of asylum applications that fail
to demonstrate a prima facie claim for relief or protection in the
manner set out in the proposed rule and this final rule does not
violate other provisions of the Departments' regulations. As stated in
the proposed rule, ``[n]o existing regulation requires a hearing when
an asylum application is legally deficient.'' 85 FR at 36277.
Commenters' arguments to the contrary misconstrue the regulatory
framework. The Departments agree that an alien's testimony may be
important evidence for a case. See, e.g., Matter of Mogharrabi, 19 I&N
Dec. 439, 445 (BIA 1987) (``The alien's own testimony may in some cases
be the only evidence available, and it can suffice where the testimony
is believable, consistent, and sufficiently detailed to provide a
plausible and
[[Page 80304]]
coherent account of the basis for his fear.'').\29\ But in cases where
it is clear from the fundamental bases of the alien's claim that the
claim is legally deficient and the alien will not be able to meet his
or her burden of proof, regardless of the additional detail or
specificity that the alien's testimony may provide, such testimony is
not material or relevant and is not needed for the judge to be able to
make a determination that the application is legally insufficient.\30\
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\29\ Nevertheless, despite commenters' statements, the
Departments emphasize that while an alien's testimony may be
sufficient to meet his or her burden of proof on its own, such
testimony must be ``credible,'' ``persuasive,'' and refer to
sufficient specific facts.'' INA 240(c)(4)(B) (8 U.S.C.
1229(c)(4)(B)). Otherwise, the immigration judge may determine that
the alien should provide corroborative evidence unless the alien can
demonstrate that he or she does not have and cannot reasonably
obtain the evidence. Id.; see also Matter of E-P-, 21 I&N Dec. 860,
862 (BIA 1997) (a finding of credible testimony is not dispositive
as to whether asylum should be granted).
\30\ The Departments also note that an alien may proffer written
testimony as part of his or her response to either the DHS motion or
judge's notice regarding pretermission.
---------------------------------------------------------------------------
Further, the rule does not conflict with the specific regulatory
sections cited by the commenters. To the contrary, as discussed, supra,
the rule is fully consistent with an immigration judge's existing
authority to take any action consistent with their authorities under
the law that is appropriate and necessary for the disposition of cases,
8 CFR 1003.10(b), to generally take any appropriate action consistent
with applicable law and regulations, id. 1240.1(a)(1)(iv), and to
regulate the course of a hearing, id. 1240.1(c). Further, the rule does
not affect the instruction at 8 CFR 1240.1(c) for immigration judges to
consider material and relevant evidence. If a case presents a prima
facie claim, the case will proceed through the adjudicatory process
consistent with current practice, including the submission and
consideration of whatever material and relevant evidence is included in
the record. Similarly, in that adjudication, the alien would be
examined and allowed to present evidence and witnesses, consistent with
8 CFR 1240.11(c)(3)(iii). Finally, those applications that present a
prima facie claim will proceed to an evidentiary hearing to resolve
those factual and legal issues presented by the alien's claim. See 8
CFR 1240.11(c)(3). Accordingly, pretermission works to supplement the
existing regulations; it does not conflict with them, nor does it
render them surplusage.
3.2.3. Pretermission and BIA Case Law
Comment: Commenters stated that allowing immigration judges to
pretermit and deny asylum applications violates Matter of Fefe, 20 I&N
Dec. 116 (BIA 1989), and Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989).
Commenters disagreed with the Departments' distinguishing Matter of
Fefe in the proposed rule by noting that the underlying regulations
interpreted by the BIA in Matter of Fefe are no longer in effect. See
85 FR at 36277. Instead, commenters stated that both the BIA and the
Federal courts have noted that the current regulations at 8 CFR 1240.11
are substantially similar to the regulations at issue in Matter of
Fefe. See Matter of E-F-H-L-, 26 I&N Dec. 319, 323 (BIA 2014) (noting
that the current regulatory ``language does not differ in any material
respect from that in the prior regulations''), vacated by 27 I&N Dec.
226, 226 (A.G. 2018); Oshodi v. Holder, 729 F.3d 883, 898 (9th Cir.
2013) (``We reaffirm our holding, and the BIA's own rule, that an
applicant's oral testimony is `an essential aspect of the asylum
adjudication process' and the refusal to hear that testimony is a
violation of due process.'') (citing Matter of Fefe, 20 I&N Dec. at
118).
Response: As stated in the proposed rule, the Departments find that
intervening changes to the regulations since its publication and the
Attorney General's vacatur of Matter of E-F-H-L- have superseded the
BIA's holding in Matter of Fefe. 85 FR at 36277. The BIA's statement in
Matter of E-F-H-L- that the current regulations ``do not differ in any
material respect'' from those in effect in 1989 was simply not
accurate, and the Departments find that the regulations today create a
substantively different framework for adjudications than the
regulations in 1989. Notably, the earlier regulations contained a
general requirement that all applicants be examined in person by an
immigration judge or asylum officer prior to the application's
adjudication. 8 CFR 208.6 (1988). Today, however, the regulations
provide direct examples of times when no hearing on an asylum
application is required: If no factual issues are in dispute and once
the immigration judge has determined that the application must be
denied pursuant to the mandatory criteria in 8 CFR 1208.14 or 1208.16.
See 8 CFR 1240.11(c)(3) (``An evidentiary hearing extending beyond
issues related to the basis for a mandatory denial of the application
pursuant to Sec. 1208.14 or Sec. 1208.16 of this chapter is not
necessary once the immigration judge has determined that such a denial
is required.'').
The procedures at 8 CFR part 208 at issue in Matter of Fefe were
first amended in 1990. Aliens and Nationality; Asylum and Withholding
of Deportation Procedures, 55 FR 30674 (July 27, 1990) (final rule);
Aliens and Nationality; Asylum and Withholding of Deportation
Procedures, 53 FR 11300 (Apr. 6, 1988) (proposed rule). At that time,
the Department clearly indicated that the purpose of the amendments
\31\ was to allow immigration judges and the BIA greater flexibility to
``limit the scope of evidentiary hearings . . . to matters that are
dispositive of the application for relief.'' 53 FR at 11301. The
Department of Justice explained that, ``[i]f it is apparent upon the
record developed during a proceeding that the alien is clearly
ineligible for asylum or withholding of deportation, the Immigration
Judge will be permitted to forego a further evidentiary hearing on
questions extraneous to the decision, thus avoiding unnecessary and
time consuming factual hearings on nondispositive issues.'' Id.
---------------------------------------------------------------------------
\31\ The amended regulatory provisions at 8 CFR 236.3, which
regarded exclusion proceedings, and 8 CFR 242.17, which regarded
deportation proceedings, are the precursors to current regulatory
sections 8 CFR 1240.33 and 8 CFR 1240.49. Cf. Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens;
Conduct of Removal Proceedings; Asylum Procedures, 62 FR 444, 450
(Jan. 3, 1997) (discussing the relocation of ``old regulations which
are still applicable to proceedings commenced prior to April 1, 1997
. . . to new parts of the regulations as separate subtopics'').
Current 8 CFR 1240.11(c)(3) in turn follows this approach for the
consideration of asylum applications during removal proceedings
under section 240 of the Act (8 U.S.C. 1229a).
---------------------------------------------------------------------------
Despite the BIA's statements opining on the similarity of 8 CFR
1240.11(c) and 8 CFR 236.3 and 242.17 (1988)--which, as stated
elsewhere have been vacated by the Attorney General--the Departments
find that there are clear procedural differences between a general
requirement to conduct a hearing and regulations that establish clear
exceptions to a hearing requirement. In short, the Board's decisions in
Matter of Fefe and Matter of E-F-H-L-, in light of subsequent legal
developments, simply do not stand for the propositions advanced by some
commenters. See Ramirez v. Sessions, 902 F.3d 764, 771 n.1 (8th Cir.
2018) (``The current relevance of [Matter of Fefe and Matter of E-F-H-
L-] is questionable. The regulations applied in Matter of Fefe were
later rescinded and replaced. Further, Matter of E-F-H-L-, which
reaffirmed Matter of Fefe, was vacated [by the Attorney General] after
the petitioner withdrew his application.'').
[[Page 80305]]
Further, even if the regulation conflicted with a prior
interpretation by the BIA, the Attorney General, consistent with his
authority to interpret the INA, may still issue the rule. INA 103(g), 8
U.S.C. 1103(g). The Departments are not bound by prior judicial
interpretations of the Departments' own regulations, as such
interpretations are not interpretations of the INA's statutory
requirements.
Matter of Ruiz, is also distinguishable. There, the BIA held that
an immigration judge could not require an alien who sought to reopen
proceedings conducted in absentia to demonstrate a prima facie
eligibility for asylum in conjunction with the motion to reopen. Matter
of Ruiz, 20 I&N Dec. at 93. Instead, the BIA held that the alien must
demonstrate a ``reasonable cause for his failure to appear.'' Id. But
the change in the rule here--which allows immigration judges to
pretermit and deny asylum applications that fail to demonstrate a prima
facie claim for relief or protection--has no connection to what aliens
must demonstrate in order to reopen a hearing conducted in absentia.
The in absentia requirements are separately set out by the Act and
regulations. See INA 240(b)(5)(C)(i)-(ii), 8 U.S.C. 1229a(b)(5)(C)(i)-
(ii) (providing conditions for rescinding an in absentia removal order
based on a motion to reopen); 8 CFR 1003.23(b)(4)(ii). There is no
separate requirement to demonstrate further eligibility for any
application for relief, consistent with Matter of Ruiz. Further, the
equivalent statutory right to former section 236(a) of the Act, 8
U.S.C. 1226(a), which was at issue in Matter of Ruiz, is the alien's
rights in a proceeding under section 240(b)(4) of the Act, 8 U.S.C.
1229(b)(4), which, as discussed above, are not violated by allowing an
immigration judge to pretermit and deny applications that fail to
demonstrate a prima facie claim for relief or protection.
3.2.4. Additional Concerns Regarding Pretermission
Comment: Multiple commenters expressed concern that the rule would
allow immigration judges to dismiss asylum claims without a hearing,
denying applicants the opportunity to appear in court and offer
testimony. Commenters emphasized that the rule is ``extremely
problematic'' from a due process perspective and violates aliens' Fifth
Amendment due process rights. In support, commenters cited to case law
discussing the right to testify and finding due process violations when
that right is curtailed or limited. See, e.g., Atemnkeng v. Barr, 948
F.3d 231, 242 (4th Cir. 2020) (holding that there was a due process
violation where the immigration judge deprived an asylum applicant of
the opportunity to testify on remand). Commenters emphasized a quote
from the chair of the American Immigration Lawyers Association's asylum
committee stating that ``the pretermission authority was the most
striking attack on due process in the proposal,'' and noting that some
immigration judges already have denial rates of 90 percent or higher.
Response: The commenters appear to misconstrue both the nature of
the rule and the difference between issues of fact and issues of law.
None of the examples provided by commenters involved situations in
which an immigration judge pretermitted an application as legally
deficient; rather, they involve situations in which an immigration
judge initially allowed testimony but then cut-off questioning--or, in
one case, disallowed testimony altogether--following a remand. In other
words, the posture of the examples cited by commenters is one in which
an alien had already demonstrated a prima facie case, making those
examples inapposite to the rule. Commenters did not provide any
examples where a properly supported legal pretermission--by itself--was
found to be a due process violation, nor did commenters explain how
analogous summary-decision or summary-judgment provisions in other
contexts--e.g. 28 CFR 68.38 or Fed. R. Civ. P. 56--remain legally valid
even though they, too, curtail an individual's ability to testify or
introduce evidence in proceedings. In short, the commenters' concerns
appear unconnected to the actual text of the rule and the applicable
law.
The Departments disagree that allowing immigration judges to
pretermit and deny asylum applications that do not show a prima facie
claim for relief would violate applicants' due process rights. The
essence of due process is notice and an opportunity to be heard. See
LaChance, 522 U.S. at 266. Nothing in the rule eliminates notice of
charges of removability against an alien, INA 239(a)(1), 8 U.S.C.
1229(a)(1), or the opportunity for the alien to make his or her case to
an immigration judge, INA 240(a)(1), 8 U.S.C. 1229a(a)(1), or on
appeal, 8 CFR 1003.38.
In addition, the rule would not require or expect aliens to meet
their ultimate burden of proof to avoid pretermission; instead, the
alien must only (per one common definition of ``prima facie'')
``establish a fact or raise a presumption, unless disproved or
rebutted.'' Black's Law Dictionary (11th ed. 2019); cf. Tilija v. Att'y
Gen., 930 F.3d 165, 171 (3d Cir. 2019) (``To establish a prima facie
claim, the movant `must produce objective evidence that, when
considered together with the evidence of record, shows a reasonable
likelihood that he is entitled to [asylum] relief.''' (citation
omitted)). Further, the rule ensures the alien has an opportunity to
respond to either the DHS motion or the judge's notice regarding
pretermission and provide the court with additional argument or
evidence, including proffered written testimony, in support of the
alien's application.
Comment: Commenters emphasized that asylum seekers are vulnerable
and often unrepresented and noted the low rates of representation for
aliens in the Migrant Protection Protocols (``MPP'') in particular.
Because many asylum seekers do not speak English, it is often difficult
for them to navigate the complexities of the immigration system.
Commenters specifically noted that it is hard for detained,
unrepresented individuals to complete asylum applications because they
are often required to use ``unofficial translators'' with whom they are
not comfortable sharing personal information. Commenters stated that
the immigration judge's consideration of an alien's response to the
judge's notice or DHS motion regarding pretermission does not alleviate
the commenters' concerns. Commenters argued that the same language
barriers and other vulnerabilities would apply to both the response and
the underlying Form I-589 application; thus, they contend, a response
alone does not provide a ``meaningful opportunity'' to address
misunderstandings or fully engage with the judge or DHS.
Response: As an initial point, the commenters' assertion of a low
rate of representation is inaccurate. The Departments note that a large
majority (85 percent at the end of FY2020) of those asylum seekers who
are in proceedings before DOJ--and who, in turn, could have an
immigration judge pretermit their asylum applications--are represented
in proceedings. EOIR, Adjudication Statistics: Representation Rates
(Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1062991/download. Second, while the Departments agree with commenters that many
asylum seekers' first or preferred language is a language other than
English, the Departments find that it is reasonable to expect aliens to
utilize translators or other resources in order to complete the Form I-
589 application in accordance with the regulations and instructions,
which
[[Page 80306]]
require that the form be completed in English. See 8 CFR 208.3(a),
1208.3(a) (noting that an applicant must file an I-589 ``in accordance
with the instructions on the form''); Form I-589, Application for
Asylum and for Withholding of Removal, Instructions, 5 (Sept. 10,
2019), https://www.uscis.gov/sites/default/files/document/forms/i-589instr.pdf (``Your answers must be completed in English.'').
Moreover, existing regulations already require that foreign-language
submissions be translated into English, see 8 CFR 103.2(b)(3), 1003.33,
so it is unclear how a non-English-speaking alien could submit evidence
without a translator in any case.
The Departments thus disagree that aliens would be unable to answer
the questions on the Form I-589 with enough specificity to make a prima
facie claim for relief or protection. The Departments further note that
aliens whose applications are deficient will be able to provide
additional argument or evidence in response to either DHS's motion to
pretermit or the judge's sua sponte notice. See 8 CFR 1208.13(e) (as
amended). Despite commenters' concerns that this process is
insufficient, this is the same process that is regularly used in
immigration court, including other times when an alien's ability to
seek a particular form of relief may be foreclosed by DHS filing a
motion to pretermit. 85 FR at 36277.
Comment: Commenters stated that allowing immigration judges to
pretermit applications would violate the duty of the immigration judge
under the Act and the regulations to develop the record, particularly
for cases where the alien appears pro se and for cases involving UACs.
See, e.g., Jacinto v. I.N.S., 208 F.3d 725, 734 (9th Cir. 2000)
(``[U]nder the statute and regulations previously cited, and for the
reasons we have stated here, immigration judges are obligated to fully
develop the record in those circumstances where applicants appear
without counsel . . . .'').
Response: Allowing immigration judges to pretermit and deny asylum
applications that do not demonstrate a prima facie claim for relief or
protection does not violate the immigration judge's responsibility to
develop the record. Instead, the rule comports with this duty by
requiring immigration judges to provide notice and an opportunity to
respond before pretermitting any application. Such notice should
provide the parties with information regarding the judge's concerns,
and should elicit relevant information in response. Similarly, in the
context of DHS motions to pretermit, the immigration judge would
consider the alien's response to the motion and may solicit additional
information, if needed, for review.
Comment: Commenters stated that pretermission conflicts with
adjudication guidance in UNHCR's Handbook on Procedures and Criteria
for Determining Refugee Status, which provides that, ``while the burden
of proof in principle rests on the applicant, the duty to ascertain and
evaluate all the relevant facts is shared between the applicant and the
examiner. Indeed, in some cases, it may be for the examiner to use all
the means at his disposal to produce the necessary evidence in support
of the application.'' UNHCR, Handbook On Procedures and Criteria for
Determining Refugee Status, ] 196 (1979) (reissued Feb. 2019), https://www.unhcr.org/en-us/publications/legal/5ddfcdc47/handbook-procedures-criteria-determining-refugee-status-under-1951-convention.html. As a
result, commenters stated that allowing immigration judges to pretermit
and deny applications that do not demonstrate a prima facie claim does
not meet the United States' international obligations and does not
align with congressional intent to follow the Refugee Convention.
Response: Commenters' reliance on guidance from UNHCR is misguided.
UNHCR's interpretations of (or recommendations regarding) the Refugee
Convention and Protocol, including the UNHCR Handbook, 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 (citation and
internal quotations omitted). Further, to the extent such guidance
``may be a useful interpretative aid,'' id. at 427, it would apply only
to statutory withholding of removal, which is the protection that
implements Article 33 of the Convention. Cf. R-S-C v. Sessions, 869
F.3d 1176, 1188, n.11 (10th Cir. 2017) (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'').
And although the rule would allow pretermission of Form I-589
applications submitted for withholding of removal or CAT protection,
such pretermission does not necessarily constrict or limit the
population of aliens that may qualify for such protection. Instead, it
simply provides an efficiency for the adjudication of those claims that
do not demonstrate a baseline prima facie eligibility for relief.
Comment: Commenters emphasized that the rule forces the entire
eligibility decision to be based on the Form I-589 and supporting
documents, noting that this could be problematic if the applicant does
not initially possess all of the necessary documentation. Commenters
also claimed that pretermitting an application while the individual is
still working to gather paperwork would be ``grossly unfair'' and
contended that, if the rule is adopted, it must provide a ``working
period'' after submission during which an application cannot be
pretermitted. Commenters also noted that unrepresented individuals may
have their applications terminated prior to finding representation who
could help them supplement an application that was originally lacking
or insufficient.
Other commenters noted that there are many cases that initially
appear to lack eligibility but later qualify for asylum after testimony
is taken and additional facts are uncovered. Commenters referenced
Matter of Fefe, 20 I&N Dec. 116, and Matter of Mogharrabi, 19 I&N Dec.
443, noting that there are often discrepancies between the written and
oral statements in an asylum application that can only be resolved
through direct examination.
Response: Commenters again appear to misstate the rule, to
misunderstand the difference between issues of fact and issues of law,
and to misunderstand the difference between a prima facie legal showing
and a full consideration of the merits of a case. The rule requires
simply a prima facie case for relief; it does not require that every
factual assertion be supported by additional corroborative evidence. If
the alien's application for relief states sufficient facts that could
support his or her claim for relief or protection, the immigration
judge would not pretermit the application solely because some
additional documentation is still being gathered.\32\ Accordingly, the
[[Page 80307]]
Departments disagree that a minimum ``working period'' before which an
application may not be pretermitted is needed.
---------------------------------------------------------------------------
\32\ Many commenters raised this issue specifically for
particular social group asylum claims, noting the fact-intensive
nature of the social distinction element--i.e., that it be
recognized by the society in question--required for such groups. See
S.E.R.L., 894 F.3d at 556 (``And that must naturally be so, once it
is given that social distinction involves proof of societal views.
What those views are and how they may differ from one society to
another are questions of fact''). The Departments recognize that
situations in which particular social group asylum claims may be
pretermitted due to a failure to make a prima facie showing of the
social distinction element are likely to be rare. Nevertheless, the
immutability and particularity requirements are not necessarily
factbound--though they may be in discrete cases--and the failure of
an alien to make a prima facie showing that a proposed particular
social group consists of a characteristic that is immutable (or
fundamental) or is defined with particularity may warrant
pretermission of the claim in appropriate cases.
---------------------------------------------------------------------------
Regarding applications that at first appear insufficient but are
later bolstered through additional information, the Departments again
emphasize that the rule provides the alien with the opportunity to
respond to either the DHS motion or the judge's notice regarding
pretermission. The Departments expect that such a response would be
used to provide additional information, which the immigration judge
would consider prior to making any final determination regarding
pretermission. Moreover, in both Matter of Fefe and Matter of
Mogharrabi, there was no question about whether the alien had stated a
prima facie claim. In the former, the immigration judge raised doubts
over the alien's credibility--not over the legal basis of the claim--
that were not resolved because the alien did not testify. In the
latter, the Departments see no indication that the alien could not have
stated a prima facie claim.
Finally, an immigration judge may only pretermit an application
that is legally deficient. Thus, the gathering of additional facts that
do not bear on the legal cognizability of the claim--for example,
gathering the specific names of every speaker at a political rally--is
not required by the rule to avoid pretermission.
Comment: Commenters also criticized the 10-day notice period,
claiming it is ``unreasonably short,'' especially considering the
COVID-19 pandemic.
Response: The 10-day period is consistent with current EOIR
practice, where it has worked well. See EOIR, Immigration Court
Practice Manual at D-1 (July 2, 2020), https://www.justice.gov/eoir/page/file/1258536/download. The Departments disagree that the current
COVID-19 situation affects the reasonableness of the 10-day deadline as
filings can be submitted by mail and, in some locations, online. See
EOIR, Welcome to the EOIR Courts & Appeals System (ECAS) Information
Page, https://www.justice.gov/eoir/ECAS. Further, if an immigration
court location is unexpectedly closed on the day of the deadline, the
deadline is extended until the immigration court reopens. See EOIR, PM
20-07: Case Management and Docketing Practices, 2 n.1 (Jan. 31, 2020),
https://www.justice.gov/eoir/page/file/1242501/download. Moreover, many
non-detained hearings continue to be postponed due to COVID-19
rendering deadlines largely malleable until hearings resume.
Comment: Commenters alleged that the rule would result in a higher
rate of pretermission for unrepresented individuals because these
applicants would be unfamiliar with the ``magic language'' needed to
survive a motion to pretermit. As a result, commenters claimed that the
rule violates the Fifth and Sixth Amendments, and concurrently violates
section 240(b)(4)(A) and (B) of the Act, 8 U.S.C. 1229a(b)(4)(A) and
(B).\33\
---------------------------------------------------------------------------
\33\ Commenters did not provide further explanation regarding
how the rule allegedly violates section 240(b)(4)(B) of the Act (8
U.S.C. 1229a(b)(4)(B)), which provides that: The alien shall have a
reasonable opportunity to examine the evidence against the alien, to
present evidence on the alien's own behalf, and to cross-examine
witnesses presented by the Government but these rights shall not
entitle the alien to examine such national security information as
the Government may proffer in opposition to the alien's admission to
the United States or to an application by the alien for
discretionary relief under this chapter. This rule does not affect
any procedures that relate to aliens' rights under this provision of
the INA, and, accordingly, the Departments need not respond further
to this point.
---------------------------------------------------------------------------
Response: Commenters are incorrect that the rule violates an
alien's right to counsel under section 240(b)(4)(A) of the Act, 8
U.S.C. 1229a(b)(4)(A), and the Sixth Amendment. First, section
240(b)(4)(A) of the Act, 8 U.S.C. 1229a(b)(4)(A), provides that aliens
``shall have the privilege of being represented, at no expense to the
government, by counsel of the alien's choosing who is authorized to
practice in such proceedings.'' No provision of this rule would limit
an alien's ability to obtain representation as provided by the INA.
Second, the Sixth Amendment right to counsel does not apply in
immigration proceedings, which are civil, not criminal, proceedings.
See, e.g., Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir.
2004).\34\
---------------------------------------------------------------------------
\34\ Although the Sixth Amendment's right to counsel does not
apply in immigration proceedings, some courts have held that a
constitutional right to counsel in immigration proceedings applies
as part of the Fifth Amendment's due process clause. See, e.g.,
Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (``Both Congress
and our court have recognized the right to retained counsel as being
among the rights that due process guarantees to petitioners in
immigration proceedings.''). Nevertheless, neither the proposed rule
nor this final rule violates such a right to counsel as the rule
does not amend any procedures related to an alien's right to obtain
counsel of his or her choosing at no government expense.
---------------------------------------------------------------------------
Commenters are similarly incorrect that the rule violates the equal
protection component of the Fifth Amendment's Due Process Clause
because unrepresented aliens will be more likely to have asylum
applications pretermitted than similarly situated represented aliens.
First, commenters' concerns that the rule will have a disparate impact
are speculative. Second, similar procedures in other civil
proceedings--such as the summary decision procedures of 28 CFR 68.38 or
summary judgment under the Federal Rules of Civil Procedure--do not
violate the Fifth Amendment. Third, even if the commenters were correct
that the rule has a discriminatory impact, the Departments find it
would not violate the Fifth Amendment's equal protection guarantee
because the rule does not involve a suspect classification or burden
any fundamental right. See Heller v. Doe, 509 U.S. 312, 319 (1993)
(holding that ``a classification neither involving fundamental rights
nor proceeding along suspect lines is accorded a strong presumption of
validity'').
Allowing the pretermission of applications would enhance judicial
efficiency by no longer requiring a full hearing for applications that
are legally deficient on their face. There continue to be record
numbers of both pending cases before EOIR \35\ and asylum applications
\36\ filed annually. Accordingly, the Departments seek to most
efficiently allocate EOIR's limited adjudicatory capacity in order to
decide cases in a timely manner, including granting relief to aliens
with meritorious cases as soon as possible. Accordingly, there is at
least a rational basis for allowing pretermission of asylum
applications in this manner. Cf. DeSousa v. Reno, 190 F.3d 175, 184 (3d
Cir. 1995) (``[D]isparate treatment of different groups of aliens
triggers only rational basis review under equal protection doctrine. .
. . Under this minimal standard of review, a classification is accorded
`a strong presumption of validity' and the government has no obligation
to produce evidence to sustain its rationality.'' (internal citations
omitted)).
---------------------------------------------------------------------------
\35\ EOIR, Adjudication Statistics: Pending Cases (Apr. 15,
2020), https://www.justice.gov/eoir/page/file/1242166/download
(1,122,697 pending cases as of the second quarter of FY2020)
\36\ EOIR, Adjudication Statistics: Total Asylum Applications
(Apr. 15, 2020), https://www.justice.gov/eoir/page/file/1106366/download (120,495 asylum applications filed as of the second quarter
of FY2020).
---------------------------------------------------------------------------
Comment: Commenters also alleged that the pretermission of asylum
applications is incompatible with federally established pleading
standards
[[Page 80308]]
and ``would be an abrupt change from decades of precedent and practice
before the immigration court.'' Commenters provided a hypothetical
chain of events to illustrate this alleged violation of pleading
standards and cited to Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
594 (8th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
and Bell Atl. Corp. v. Twombly, 550 U.S. 554, 556 (2007)).
Response: The Federal Rules of Civil Procedure do not apply in
immigration court. See Fed. R. Civ. P. 81 (setting out the
applicability of the rules); see also 8 CFR part 1003, subpart C
(setting out the immigration court rules of procedure). Accordingly,
commenters' reliance on cases that interpret Rule 8(a) of the Federal
Rules of Civil Procedure are not applicable to immigration court.
Moreover, the commenters' comparisons to a pleading standard are
inaccurate as the decision to pretermit an application is akin to a
summary judgment decision, not a pleading determination. Cf. F.R. Civ.
P. 56 (``The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.''). In order to ensure the
immigration judge has as much information as possible about the
underlying claim, the rule ensures the applicant has the opportunity to
respond to the possible pretermission of his or her application, either
as a response to a DHS motion to pretermit or a response to the
immigration judge's notice of possible pretermission.
Comment: Commenters contended that the rule, in combination with
the Immigration Court Performance Metrics, incentivizes immigration
judges to pretermit asylum applications in order to fulfill case
completion requirements.
Response: The Departments strongly disagree with the commenters'
underlying premise, namely that immigration judges are unethical or
unprofessional and decide cases based on factors other than the law and
the facts of the cases. Immigration judges exercise ``independent
judgment and discretion'' in deciding cases, 8 CFR 1003.10, and are
expected to ``observe high standards of ethical conduct, act in a
manner that promotes public confidence in their impartiality, and avoid
impropriety and the appearance of impropriety in all activities,''
EOIR, Ethics and Professionalism Guide for Immigration Judges at 1
(2011), https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf. Further, it is well-
established that ``[t]he administrative process is entitled to a
presumption of regularity,'' Int'l Long Term Care, Inc. v. Shalala, 947
F. Supp. 15, 21 (D.D.C. 1996), and commenters provide no evidence for
the bald assertion that immigration judges will ignore applicable law
and the evidence in each case simply in order to pretermit the case.
See also United States v. Chemical Found., 272 U.S. 1, 14-15 (1926)
(``The presumption of regularity supports the official acts of public
officers, and, in the absence of clear evidence to the contrary, courts
presume that they have properly discharged their official duties.'').
To the contrary, in FY 2019, the first full FY after immigration judge
performance measures went into effect, not only did most non-
supervisory immigration judges working the full year meet the case
completion measure without any difficulty, see EOIR, Executive Office
for Immigration Review Announces Case Completion Numbers for Fiscal
Year 2019, https://www.justice.gov/opa/pr/executive-office-immigration-review-announces-case-completion-numbers-fiscal-year-2019, but
complaints of immigration judge misconduct actually declined slightly
from the prior FY, see EOIR, Adjudication Statistics: Immigration Judge
Complaints, https://www.justice.gov/eoir/page/file/1104851/download,
even though the total number of immigration judges increased 12
percent, see EOIR, Adjudication Statistics: Immigration Judge Hiring,
https://www.justice.gov/eoir/page/file/1242156/download.
Allowing pretermission of Form I-589 applications that do not
establish a prima facie claim for relief or protection under the law
provides immigration judges with a mechanism to improve court
efficiency by clarifying that there need not be a full merits hearing
on those cases that present no legal questions for review, allowing
them to devote more time to cases in which facts are at issue. There is
no basis for the assumption that the rule would inappropriately
incentivize immigration judges to pretermit applications solely to
fulfill case-completion goals. As noted, supra, some immigration judges
already pretermit legally deficient applications, and the Departments
are unaware of any link between that action and performance metrics; in
fact, immigration judges have pretermitted legally deficient asylum
applications since at least 2012, Matter of E-F-H-L-, 26 I&N Dec. 319
(BIA 2014), which was several years before performance measures were
implemented.
Moreover, assuming, arguendo, there were such an incentive, it
would be counter-balanced by the performance measure for an immigration
judge's remand rate. In other words, an immigration judge who
improperly pretermitted applications in violation of the law solely in
order to complete more cases would have those cases remanded by the
Board on appeal which, in turn, would cause the immigration judge's
remand rate to exceed the level set by the performance measures. In
short, there is no legal, factual, or logical reason to believe that
codifying an immigration judge's authority to pretermit legally
deficient applications and the existence of immigration judge
performance evaluations will incentivize immigration judges to violate
the law in their decision making.
Comment: Commenters emphasized that asylum applications are
governed by the law at the time of adjudication rather than the time of
filing and expressed concern that the pretermission of applications for
lack of a prima facie showing of eligibility forces immigration judges
and asylum officers to become ``soothsayers.''
Response: Allowing immigration judges to pretermit and deny
applications that do not present a prima facie claim for relief or
protection does not conflict with this point. If the judge determines
that pretermission is appropriate, that decision would be based on the
law and regulations in place at that point, and the decision to
pretermit is the adjudication of the application.
Comment: Commenters questioned the effect the rule will have on the
asylum clock, especially if a decision affecting eligibility is
abrogated by a higher court after an application was filed and
pretermitted; one commenter expressed concern that the rule does not
specify ``when in the process DHS or the judge can move.'' One
commenter emphasized that ``[a]ny final rule which is eventually
published should consider how the asylum clock will operate, and should
provide clear instructions which attorneys and their clients can rely
on.''
Response: The Departments note that USCIS recently published a
final rule, Asylum Application, Interview, and Employment Authorization
for Applicants, that eliminates the asylum clock.\37\ However that rule
is currently the subject of ongoing litigation and portions of the rule
are subject to a preliminary injunction, as applied to two plaintiff
organizations.\38\ Regardless, as stated in the proposed rule, an
immigration judge who
[[Page 80309]]
determines that an asylum application that fails to demonstrate prima
facie eligibility for relief or protection under applicable law may
``pretermit and deny'' such application. See 8 CFR 1208.13(e).
Accordingly, a decision to pretermit and deny would have the same
asylum clock effects as any other denial of an asylum application by
the immigration judge.
---------------------------------------------------------------------------
\37\ 85 FR 38532, 39547.
\38\ Casa de Maryland v. Wolf, No. 8:20-cv-02118-PX, 2020 WL
5500165, (D. Md. Sept. 11, 2020) (order granting preliminary
injunction).
---------------------------------------------------------------------------
Comment: Commenters alleged that the rule would greatly decrease
efficiency in the asylum process, as the number of cases in which a
hearing is denied would ``skyrocket'' and the majority of these
respondents would appeal to the BIA. Commenters noted the BIA's current
backlog and the increased delay in issuing briefing schedules and
decisions.
Response: Allowing immigration judges to pretermit and deny asylum
applications that do not demonstrate a prima facie claim for relief or
protection will increase, not decrease, efficiencies for DOJ.
Commenters' predictions of how many cases will be pretermitted under
these changes are speculation, as the Departments do not have data on
the underlying bases for denials currently, which would be required to
accurately predict how many might be pretermitted in the future.
Moreover, as fewer than 20 percent of asylum applications are granted
even with a full hearing, see EOIR, Asylum Decision Rates, https://www.justice.gov/eoir/page/file/1248491/download, and many of the ones
not granted are appealed already, there is likely to be little
operational impact on the BIA.\39\ In contrast, pretermitting legally
deficient claims will improve efficiency for immigration courts by
allowing immigration judges to screen out cases that do not demonstrate
prima facie eligibility and, thus, allowing potentially meritorious
applications to progress more expeditiously to individual hearings.
---------------------------------------------------------------------------
\39\ The Departments note that DOJ has also recently taken steps
to improve adjudicatory efficiency at the BIA. See EOIR, Case
Processing at the Board of Immigration Appeals (Oct. 1, 2019),
https://www.justice.gov/eoir/page/file/1206316/download.
---------------------------------------------------------------------------
Comment: One commenter noted that there are particular signatures
on the asylum application which can only be signed by the applicant at
the final hearing and claimed that pretermission is ``non-sensical''
because the application will not yet be complete.
Response: The Departments disagree with commenters' concerns that
asylum applications may not be pretermitted because a signature is
required by the applicant at the final hearing. The Departments believe
that the commenters are referring to the signature in Part G of the
Form I-589, which is most often signed by the alien at the beginning of
the merits hearing on the alien's asylum application and in which the
alien swears that the application's contents are true and acknowledges
the consequences of submitting a frivolous application. Accordingly,
the signature in Part G of the Form I-589 is related to a possible
frivolousness finding and the attendant consequences.
Moreover, for the purposes of determining whether to pretermit an
application, whether or not the immigration judge has had the applicant
sign in Part G, the applicant signs in Part D at the time the
application is completed. The signature in Part D is the alien's
certification under penalty of perjury that the application and any
evidence submitted with it are ``true and correct,'' in addition to
another notice of the consequences of filing a frivolous application
and other activities. Given the alien's signature in Part D that the
application is ``true and correct,'' the Departments believe that the
application is sufficient for the purposes of possible pretermission
even without a signature in Part G.
Comment: Commenters stated that allowing pretermission will
inevitably violate the confidentiality obligations for asylum
applicants, speculating that the immigration judge, alien, and DHS
counsel will engage in inappropriate conversations regarding the
specifics of an asylum application in front of other people during
master calendar hearings.
Response: With few exceptions, most immigration hearings are open
to the public. 8 CFR 1003.27. Regulations further note that
``[e]videntiary hearings on applications for asylum or withholding of
removal will be open to the public unless the alien expressly requests
that the hearing be closed.'' 8 CFR 1240.11(c)(3)(i). A master calendar
hearing is not an evidentiary hearing. See Immigration Court Practice
Manual, ch. 4.15(a), https://www.justice.gov/eoir/page/file/1258536/download (``Master calendar hearings are held for pleadings,
scheduling, and other similar matters.''). Further, an evidentiary
hearing is designed to ``resolve factual matters in dispute,'' 8 CFR
1204.11(c)(3), which would necessarily exclude such a hearing from the
ambit of pretermission. Accordingly, there is no reason that the
specifics of an asylum application would be discussed at a master
calendar hearing, and even if they were, an immigration judge may close
the courtroom as appropriate to protect the parties. 8 CFR 1003.27(b).
Comment: Commenters noted that the Departments are required to
comply with Executive Orders 12866 and 13653, which together direct
agencies to evaluate the costs and benefits of alternative methods and
to select the approach that maximizes net benefits. Commenters
contended that the rule is ``wholly unconcerned'' with calculating the
costs and benefits of the pretermission of asylum applications or
reducing costs to Federal government agencies.
In particular, commenters expressed concern about costs of the rule
possibly eliminating what the commenters referred to as the current,
more flexible ``redlining'' procedure in favor of pretermission. The
commenters explained that ``redlining'' allows the alien to update and
edit the asylum application after it is filed ``up until the point of
decision.''
Commenters disagreed that the rule will create efficiencies,
arguing instead that the rule will ``increase administrative burden,
expense, and processing time by effectively creating two distinct
opportunities for appeals to the BIA, including: (1) Appeal from the
IJ's decision to pretermit; and (2) appeal on the merits after the IJ's
decision to pretermit is overturned.''
Response: The Office of Information and Regulatory Affairs, in
conducting its review of the proposed rule, concluded that the
Departments complied with Executive Orders 12866 and 13653, as set out
in section V.D of the proposed rule. 85 FR at 36289-90. The
Departments' consideration included all provisions of the proposed
rule, including the changes to 8 CFR 1208.13 regarding pretermission of
applications.
Further, as stated above, the Departments emphasize that allowing
pretermission of applications will increase efficiencies by allowing
immigration judges to complete the adjudication of certain legally
insufficient asylum applications earlier in the process, which in turn
leaves additional in-court adjudication time available for those
applications that may be meritorious. This change would not prevent
aliens from amending or updating applications that are pending a
decision by the immigration judge, including a decision on
pretermission. In addition, the Departments dispute the commenters'
assumption that immigration judge decisions to pretermit an application
will be overturned. Immigration judges apply the immigration laws and
would only pretermit applications that fail to demonstrate a prima
facie case for eligibility for relief--in other words, that the
application could be sufficient to establish eligibility for relief.
Applications that are facially deficient
[[Page 80310]]
in this manner would not comply with the applicable law and
regulations, and, as such, the Departments would not expect such
decisions to be overturned on appeal.
4. Standards for Consideration During Review of an Application for
Asylum or for Statutory Withholding of Removal \40\
---------------------------------------------------------------------------
\40\ As an initial matter, the Departments note that commenters'
discussion on these points often referred solely to asylum claims.
Where relevant, however, the Departments have also considered the
comments in regards to statutory withholding of removal.
---------------------------------------------------------------------------
4.1. Membership in a Particular Social Group
Comment: One organization noted generally that the rule denies
asylum to individuals fleeing violence and persecution. Commenters
noted that the inclusion of ``particular social group'' in the statute
was designed to create flexibility in the refugee definition so as to
capture individuals who do not fall within the other characteristics
enumerated in section 101(a)(42) of the INA, 8 U.S.C. 1101(a)(42), and
to ensure that the United States provides protection in accordance with
its treaty obligations. Commenters argued that the rule's narrowing of
particular social group has been rejected by the Federal courts as
contrary to congressional intent to align U.S. refugee law with the
Convention relating to the Status of Refugees and its 1967 Protocol.
See Flynn v. Sec'y of Health, Ed. & Welfare, 344 F. Supp. 94, 96 (E.D.
Wis. 1972). Another organization stated that, by denying the most
common grounds of particular social group membership, the rule
``abridges U.S. obligations under the Refugee Convention . . . which
affords asylum seekers the opportunity to explain why they fit into a
protected group.'' The organization also claimed that the rule breaches
the United States' commitment to nonrefoulement, noting that the United
States has committed itself to this principle as a party to the Refugee
Protocol, the CAT, and customary international law. Commenters
emphasized a quote from the UNHCR stating that ``[t]he term membership
of a particular social group should be read in an evolutionary
manner.''
Another organization noted that while the phrase ``particular
social group'' in the Refugee Convention does not apply to every person
facing persecution, the Convention requires only that a social group
not be ``defined exclusively by the fact that it is targeted for
persecution.'' According to the Convention, ``the actions of the
persecutors may serve to identify or even cause the creation of a
particular social group in society.'' As a result, the organization
contended that the Convention allows particular social groups that do
not exist independently of the persecution.
The organization claimed the NPRM takes the opposite approach,
defining ``circular'' not only as particular social groups exclusively
defined by persecution but also as those that do not exist
independently of the persecution claim. The organization noted that, in
doing so, the NPRM seeks to adopt the circularity analysis in Matter of
A-B-, 27 I&N Dec. 316, which treats any group partially defined by the
persecution of its members as circular. The organization alleged that
this interpretation of circularity is a ``dramatic departure'' from
longstanding precedent, noting that the courts of appeals have held
that a particular social group is not circular unless it is defined
``entirely'' by persecution. The organization claimed that the
Departments do not acknowledge or justify this ``departure,'' which
makes the rule arbitrary. The organization also claimed that the
Federal appellate cases cited in the rule have the same effect. In
addition, the organization emphasized that the BIA has long accepted
particular social groups with references to the persecution bringing
asylum seekers to the United States.
One organization claimed the rule's requirement that the cognizable
group must exist independently from the persecution abrogates the
following specific particular social groups already recognized by
circuit courts: Former gang members, Arrazabal v. Lynch, 822 F.3d 961
(7th Cir. 2016); former members of the Kenyan Mungiki, Gatimi v.
Holder, 578 F.3d 611 (7th Cir. 2009); defected KGB agents, Koudriachova
v. Gonzales, 490 F.3d 255 (2d Cir. 2007); young Albanian women targeted
for prostitution, Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (en
banc); former child guerilla soldiers in Uganda, Lukwago v. Ashcroft,
329 F.3d 157 (3d Cir. 2003); individuals targeted by Pakistani
terrorist groups, Rehman v. Att'y Gen. of U.S., 178 F. App'x 126 (3d
Cir. 2006), and the Taliban, Khattak v. Holder, 704 F.3d 197 (1st Cir.
2013); and Ghanaians returning from the United States, Turkson v.
Holder, 667 F.3d 523 (4th Cir. 2012).
Another organization claimed that, under international guidelines,
the ``common characteristic'' and ``socially visible'' elements of a
particular social group are meant to be ``disjunctive,'' requiring
proof of either one or the other. The organization also alleged that
the ``particularity'' requirement is unfounded, noting that, according
to UNHCR, the size of the group is irrelevant in determining whether a
particular social group exists.
Similarly, one organization noted that the rule would require a
particular social group to be ``defined with particularity'' and
``recognized as socially distinct in the society at question,''
claiming that the NPRM fails to provide any reason for codifying these
standards. The organization alleged that the particularity and social
distinction requirements ``cut across'' each other, noting the BIA's
interpretation that an asylum seeker ``identify a group that is broad
enough that the society as a whole recognizes it, but not so broad that
it fails particularity'' and claiming that this has caused the BIA to
essentially end asylum grants based on particular social groups that
have not been previously approved.
Multiple commenters called the rule ``unwise and discriminatory.''
Commenters alleged that the rule is designed to prevent individuals
from Central America from receiving asylum and claimed that the rule
evidences the Departments' intent to prevent ``whole classes of
persons'' from claiming asylum based simply on ``the macro-level
characteristics of their country of origin.'' One organization
representing DHS employees criticized the Departments for creating a
rule based on the belief that asylum seekers are engaging in
``gamesmanship'' within the United States legal system, a premise, the
organization claimed, that is ``contrary to our experiences as
adjudicators.'' The organization stated that several of the social
groups ``slated for dismissal'' in the rule ``encompass a wide cross-
section of potentially successful asylum claims.'' The organization
also alleged that the rule creates a ``rebuttable presumption'' that
asylum claims based on any of the ``broadly enumerated particular
social groups'' are insufficient unless ``more'' is provided, but
claimed the rule fails to define what is actually needed for a
successful claim.
Another organization alleged that the NPRM's proposal would violate
due process, claiming that the private interest at stake--preventing
the violence or torture that would occur due to refoulement--is ``the
most weighty interest conceivable.'' The organization contended that
the government's countervailing interest is ``nonexistent'' due to the
NPRM's silence, also alleging that ``working with pro se asylum
seekers'' imposes a minimal burden on the government.
[[Page 80311]]
One organization claimed that the adjudication of asylum
applications has become ``increasingly politicized'' over the past
three years through the Attorney General's self-certification of cases.
The commenter noted that the Attorney General has issued nine decisions
in the past three years that restrict eligibility of relief for
noncitizens (with four additional self-certified decisions pending),
while only four precedential decisions were issued during the eight
years of the previous administration. The organization stated that,
rather than clarifying existing definitions, the rule ``virtually
eliminates particular social group as a basis for asylum.''
One organization emphasized that if the Departments choose to
codify the prerequisites to particular social groups as stated in the
rule, they must ``consider all reasonable alternatives presented to''
them. Multiple organizations suggested the Departments adopt the Matter
of Acosta standard for the analysis of particular social group claims,
meaning that ``particular social group'' should be interpreted
consistently with the other four protected characteristics laid out in
the INA. 19 I&N Dec. 211, 233 (BIA 1985), abrogated in part on other
grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). One
organization emphasized that this definition is simple,
straightforward, and could be understood by pro se asylum seekers.
Another organization alleged that the Departments failed to
consider adopting the UNHCR definition of particular social group,
which includes both immutability and the basic requirement that the
group ``be perceived as a group by society.'' The organization
contended that this standard, like the Matter of Acosta definition, is
reasonable, emphasizing that it remains ``significantly closer to the
other grounds for asylum in the INA'' than the Departments' proposal.
One organization expressed concern that the rule would codify the
``restrictive definition'' of particular social group announced in
Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014), noting that the
rule shortens the definition set forth in Matter of Acosta. The
organization also contended that the rule misconstrues the concept of
particular social group by inserting unrelated legal issues into the
definition, which the organization believes would lead to greater
confusion for all parties involved. The organization emphasized that
each particular social group claim should be evaluated on a ``case-by-
case basis'' instead of being subjected to general rules that would
result in ``blanket denials.'' Another organization stated that the
Attorney General's own decision in Matter of A-B-, 27 I&N Dec. 316, is
based on the necessity of a ``detailed, case-specific analysis of
asylum claims'' and highlights the BIA's previous errors in ``assessing
the cognizability of a social group without proper legal analysis.''
One organization asserted that the rule appears to codify the wrongly-
decided Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018), and
``takes those restrictions even further.''
Another organization emphasized that the circuit courts have
disagreed on ``at least a portion'' of the definition of particular
social group. One organization noted that elements of the rule's
proposed definition have met an ``uneven fate'' in the courts of
appeals, with many courts finding at least one of the provisions
inconsistent with the statutory text. Another organization contended
that the circuit courts cannot be ``overruled'' by either this rule or
``the Attorney General's attempt to devise a new definition of
`particular social group' that intends to cut off certain claims'' that
have been previously recognized by the circuit courts and the BIA. One
organization noted that, while the NPRM states in its first footnote
that agencies have the authority to re-interpret ambiguous statutory
phrases, it fails to explain how the definitions at issue arise from an
ambiguous term. Another organization claimed that until the Supreme
Court resolves the disagreements surrounding the particular social
group definition, the Departments have no authority to ``overrule'' the
circuit courts' interpretation of this term.
Another organization alleged that the rule would ``carve out'' a
laundry list of particular social groups toward which the
administration has shown ``pervasive, unlawful hostility'' without any
effort to ground these exceptions in the Departments' statutory
authority, claiming this is a violation of the Administrative Procedure
Act (``APA''). One organization contended that ``[t]he use of such
brazen ipse dixit without more renders each entry on the list
arbitrary,'' also claiming that this impedes the Departments' goal of
consistency. The organization claimed the Departments failed to
consider whether their ``laundry list'' of generally-barred particular
social groups would result in the erroneous denial of meritorious
claims.
Commenters claimed that one of the ``most unfair'' aspects of the
rule is that it would require asylum seekers to state every element of
a particular social group with exactness before the immigration judge.
Commenters expressed particular concern with the portion of the rule
stating that a failure to define a formulation of a particular social
group before a judge constitutes a waiver of any such claim under the
Act, including on appeal. One organization noted that this portion of
the rule would disproportionately impact unrepresented asylum seekers,
particularly those subjected to MPP, and would ``forever punish asylum
seekers who were the victims of ineffective assistance of counsel.''
Another organization alleged that the combination of performance
goals and interminable dockets will result in ``the demise of due
process in Immigration Court for pro se litigants.'' The organization
noted the importance of the ``motions practice'' in a legal system that
is committed to due process, emphasizing the long-standing practice of
allowing motions to reopen in the context of ineffective assistance of
counsel. Another organization stated that, over the past five years,
between 15 percent and 24 percent of all asylum seekers have been
unrepresented by counsel, emphasizing that these individuals do not
have training in United States asylum law, often speak little to no
English, and are unfamiliar with the intricate rules surrounding
particular social groups. One organization expressed specific concern
for refugees. Another organization claimed that the rule provides no
reasoning for its ``expansion of the punitive effect of waiver to
encompass ineffective assistance claims,'' claiming this is against
public policy and is also arbitrary and capricious; at least one other
organization emphasized this point as well.
One organization expressed particular concern for members of the
LGBTQ community, emphasizing that, due to the nature of the ``coming
out and transitioning process,'' the formulation of a particular social
group may change over time, also noting that a refugee may not know
right away that he or she is HIV positive. The organization claimed
that the rule, ``disregards the reality of LGBTQ lives'' and will cause
LGBTQ asylum seekers to be sent back to danger merely because they were
unable to ``come up with the right verbiage to describe the complicated
process of coming out and transitioning.'' The organization claimed
this issue is exacerbated by the fact that many of these individuals
are unrepresented and do not speak English. Another organization noted
that the INA requires exceptions to the one-year filing
[[Page 80312]]
deadline for ``changed and extraordinary circumstances,'' INA
208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D), emphasizing that this is
particularly important for this category of asylum seekers.
One organization claimed the rule would make it especially
difficult for African asylum seekers to qualify for asylum based on
particular social group membership. The organization also expressed
concern for women survivors of female genital cutting (``FGC''),
alleging that these individuals would not know to include this fact as
part of a gender-based particular social group claim. The organization
claimed it would be ``a miscarriage of justice'' to preclude these
women from presenting claims.
One organization alleged that the rule would make it ``almost
impossible'' for children, particularly those from Central America or
Mexico, to obtain asylum protection based on membership in a particular
social group. The organization alleged that the rule's barring of a
particular social group claim that was not initially raised in the
asylum application (or in the ``record'' before an immigration judge)
raises ``serious due process concerns'' for children, as many of the
children arriving in the United States have suffered immense trauma and
may not be able to discuss their experiences for quite some time. The
organization expressed particular concern for unaccompanied children,
noting they are often unable to discuss the harm they experienced in
their home country until they have spent time with a trusted adult. The
organization noted that, for many children, the asylum process is the
first time they ever discuss their experiences, claiming the rule ``is
unrealistic and an untenable burden for most children.''
Commenters also stated that an asylum seeker's life should not
depend on his or her ``ability to expertly craft arguments in the
English language in a way that satisfies highly technical legal
requirements.'' One organization stated that ``[a]pplying for asylum is
not a word game; asylum seekers' lives are on the line with every
application that an adjudicator decides.'' Multiple commenters claimed
that asylum officers and immigration judges have a duty to help develop
the record. One organization stated that the Departments should rely on
the decisions of EOIR and Article III courts rather than on the
expertise of asylum seekers. Finally, one organization expressed
concern that this portion of the rule contains no exceptions for minors
or individuals who are mentally ill or otherwise incompetent, stating
that holding these respondents to this kind of legal standard violates
their rights under the Rehabilitation Act. See 29 U.S.C. 794; see also
Franco-Gonzales v. Holder, 767 F. Supp. 2d 1034 (C.D. Cal. 2010).
Response: The Departments disagree with general comments that the
rule would deny asylum to all individuals fleeing violence and
persecution. The Departments note that asylum protection is not
available to every applicant who is fleeing difficult or dangerous
conditions in his or her home country. To qualify for asylum, an
applicant must demonstrate, among other things, that the feared
persecution would be inflicted ``on account of'' a protected ground,
such as membership in a particular social group. See INA 101(a)(42), 8
U.S.C. 1101(a)(42) (defining ``refugee'' as a person who, inter alia,
has suffered ``persecution or a well-founded fear of persecution on
account of . . . membership in a particular social group''). Even
accepting that the term ``particular social group'' was intended to
create flexibility in the refugee definition, the contours of that
flexible term are clearly ambiguous and within the purview of the
Departments to decide. See, e.g., Matter of A-B-, 27 I&N Dec. at 326
(``As the Board and the Federal courts have repeatedly recognized, the
phrase `membership in a particular social group' is ambiguous.''
(collecting cases)). Accordingly, the Departments are establishing
clear guidelines for adjudicators and parties regarding the parameters
of particular-social-group claims. The Departments believe that such
guidelines will promote a more uniform approach towards adjudicating
such claims. This will not only aid adjudicators in applying a more
uniform standard, but will also aid parties such that they may have a
clearer understanding of how they may prevail on a particular social
group claim as they develop their applications.
The Departments disagree that the proposed changes to particular-
social-group claims violate the Act, case law, or the due process
rights of immigrants. As noted in the NPRM, Congress has not defined
the term ``membership in a particular social group.'' See 85 FR at
36278; see also Grace II, 965 F.3d at 888 (``The INA nowhere defines
`particular social group.' '').\41\ Additionally, despite commenters'
contentions that the Convention Relating to the Status of Refugees
(``Refugee Convention''), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S.
150, or the related Refugee Protocol offers guidance on the matter, the
term is not defined in either of those instruments. 85 FR at 36278; see
also Matter of A-B-, 27 I&N Dec. at 326, n.5 (``The Protocol offers
little insight into the definition of `particular social group,' which
was added to the Protocol `as an afterthought.' '') (quoting Matter of
Acosta, 19 I&N Dec. at 232)).
---------------------------------------------------------------------------
\41\ One commenter questioned the accuracy of the Departments'
citation to and characterization of Grace II's underlying case,
Grace I, 344 F. Supp. 3d at 146, because, according to the
commenter, the case stated that the Attorney General could ``not
propose a general rule that a particular social group will not
qualify for asylum'' and did ``not reach the question of whether the
Attorney General could propose a general rule that a particular
group does qualify for asylum.'' Irrespective of the commenter's
characterization of the Departments' citation, the D.C. Circuit
recently reversed the district court regarding its statements that
the agency action contested in that litigation improperly
established a categorical bar against recognizing a specified
particular social group. Grace II, 965 F.3d at 906. Specifically,
the court determined that the Departments' use of the term
``generally'' demonstrated that the Departments had not imposed a
categorical rule against finding the particular social group at
issue in that litigation. Id. Similarly, the Departments here have
set forth a list of particular social groups that ``generally,
without more'' will not be cognizable, but have specifically
recognized that the regulation does not foreclose that, in rare
circumstances, such facts could be the basis for finding a
particular social group, given the fact- and society specific nature
of this determination.'' 85 FR at 36279.
---------------------------------------------------------------------------
The Board has noted that the term ``particular social group'' is
both ambiguous and difficult to define. Matter of M-E-V-G-, 26 I&N Dec.
at 230 (``The phrase `membership in a particular social group,' which
is not defined in the Act, the Convention, or the Protocol, is
ambiguous and difficult to define.''). Moreover, the Board has also
recognized that prior approaches to defining the term have led to
confusion and inconsistency, warranting further evaluation. As the
Board stated in M-E-V-G-:
Now, close to three decades after Acosta, claims based on social
group membership are numerous and varied. The generality permitted
by the Acosta standard provided flexibility in the adjudication of
asylum claims. However, it also led to confusion and a lack of
consistency as adjudicators struggled with various possible social
groups, some of which appeared to be created exclusively for asylum
purposes. . . . In Matter of R-A-, 22 I&N Dec. 906, 919 (BIA 1999;
A.G. 2001), we cautioned that ``the social group concept would
virtually swallow the entire refugee definition if common
characteristics, coupled with a meaningful level of harm, were all
that need be shown.''
Id. at 231 (footnote omitted). Consequently, the inherently case-by-
case nature of assessing the cognizability of a particular social
group, the lack of a clear definition of the term and its consideration
through an open-ended and largely subjective
[[Page 80313]]
lens by adjudicators, and the potential for confusion and inconsistent
application--particularly with conflicting circuit court
interpretations of similar groups--all make the definition of a
particular social group ripe for rulemaking. 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)).
Furthermore, courts have also expressly held that the term is
ambiguous. See, e.g., Cordoba v. Holder, 726 F.3d 1106, 1114 (9th Cir.
2013) (``We have recognized that the phrase `particular social group'
is ambiguous.''); Fatin, 12 F.3d at 1238 (``Both courts and
commentators have struggled to define `particular social group.' Read
in its broadest literal sense, the phrase is almost completely open-
ended. Virtually any set including more than one person could be
described as a `particular social group.' Thus, the statutory language
standing alone is not very instructive.'').\42\
---------------------------------------------------------------------------
\42\ One commenter also suggests that the Departments cited
Cordoba, 726 F.3d 1106, with a ``glaring omission.'' The commenter
suggests that Cordoba acknowledges that the term ``particular social
group'' is ambiguous, but asserts that the Departments fail to
recognize that the case goes on to ``clear up that ambiguity.'' The
Departments need not delve further into this analysis, which is
refutable for various reasons, other than to state that the case
plainly supports the proposition that the term ``particular social
group'' is ambiguous and that such ambiguities are left to the
Departments to clarify pursuant to agency authority. Chevron, 467
U.S. at 845 (``Once [the court] determined, after its own
examination of the legislation, that Congress did not actually have
an intent regarding the applicability of the bubble concept to the
permit program, the question before it was not whether in its view
the concept is `inappropriate' in the general context of a program
designed to improve air quality, but whether the [agency's] view
that it is appropriate in the context of this particular program is
a reasonable one.'').
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As noted in the NPRM, ambiguities in the Act should ``be resolved,
first and foremost, by the agency.'' 85 FR at 36265 (quoting Matter of
R-A-, 24 I&N Dec. at 631 (quoting Brand X, 545 U.S. at 982 (internal
quotation and citations omitted)). Further, the Supreme Court has
clearly indicated that administrative agencies, rather than circuit
courts, are the most appropriate entities to make determinations about
asylum eligibility in the first instance. The Supreme Court, in INS v.
Ventura, 537 U.S. 12 (2002), noted:
Within broad limits the law entrusts the agency to make the
basic asylum eligibility decision here in question. . . . In such
circumstances a judicial judgment cannot be made to do service for
an administrative judgment. . . . Nor can an appellate court . . .
intrude upon the domain which Congress has exclusively entrusted to
an administrative agency. . . . A court of appeals is not generally
empowered to conduct a de novo inquiry into the matter being
reviewed and to reach its own conclusions based on such an inquiry.
Id. at 16 (cleaned up)); cf. Gonzales v. Thomas, 547 U.S. 183, 185-87
(2006) (applying Ventura to require a remand from the circuit court to
the agency to determine a question of the meaning of ``particular
social group). ``Indeed, `judicial deference to the Executive Branch is
especially appropriate in the immigration context,' where decisions
about a complex statutory scheme often implicate foreign relations.''
Scialabba v. Cuellar de Osorio, 573 U.S. 41, 56-57 (2014) (plurality
op.) (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)).
Accordingly, the Departments are acting within their well-established
authority to define the term ``particular social group.''
Furthermore, the Departments' regulations regarding the
adjudication of claims pertaining to ``membership in a particular
social group'' are reasonable interpretations of the term, as evidenced
by a long history of agency and circuit court decisions to have
interpreted the terms consistently with the Departments' guidelines.
See Matter of W-G-R-, 26 I&N Dec. 208, 222-23 (BIA 2014) (pertaining to
past or present criminal activity or associations); Cantarero v.
Holder, 734 F.3d 82, 86 (1st Cir. 2013) (same); Gonzalez v. U.S. Att'y
Gen., 820 F.3d 399, 405 (11th Cir. 2016) (same); Matter of A-B-, 27 I&N
Dec. at 320 (pertaining to presence in a country with generalized
violence or a high crime rate and private criminal acts of which
governmental authorities were unaware or uninvolved); Matter of S-E-G-,
24 I&N Dec. 579, 585-86 (BIA 2008) (pertaining to attempted recruitment
of the applicant by criminal, terrorist, or persecutory groups); Matter
of E-A-G-, 24 I&N Dec. 591, 594-95 (BIA 2008) (same); Matter of A-M-E-
& J-G-U-, 24 I&N, Dec. 69, 75 (BIA 2007) (same); Matter of Pierre, 15
I&N Dec. 461, 462-63 (BIA 1975) (pertaining to interpersonal disputes
of which governmental authorities were unaware or uninvolved);
Gonzalez-Posadas v. Att'y Gen. of U.S., 781 F.3d 677, 685 (3d Cir.
2015) (same); Gonzales-Veliz v. Barr, 938 F.3d 219, 230-31 (5th Cir.
2019) (pertaining to private criminal acts of which governmental
authorities were unaware or uninvolved); Delgado-Ortiz v. Holder, 600
F.3d 1148, 1151-52 (9th Cir. 2010) (``We conclude that Petitioners'
proposed social group, `returning Mexicans from the United States,' . .
. is too broad to qualify as a cognizable social group.''); Sam v.
Holder, 752 F.3d 97, 100 (1st Cir. 2014) (Guatemalans returning after a
lengthy residence in the United States is not a cognizable particular
social group).
The Departments agree with commenters that circuit court
interpretations of the phrase ``particular social group'' have been
uneven, and the inconsistency with which that phrase has been evaluated
strongly militates in favor of the agencies adopting a clearer, more
uniform definition. Further, the Departments have considered all
relevant circuit court law on the issue and note that significant
conflicts exist among the various interpretations. See, e.g., Paloka v.
Holder, 762 F.3d 191, 197 (2d Cir. 2014) (highlighting conflicting
circuit court decisions regarding whether young Albanian women are a
particular social group and collecting cases showing differing circuit
court decisions regarding cognizability of other particular social
groups). Nevertheless, the Departments believe that the rule reflects
an appropriate and reasonable synthesis of legal principles consistent
with the Departments' respective policy positions. Additionally, as
noted in the NPRM, 85 FR at 36265 n.1, to the extent that some circuits
have disagreed with the Departments' reasonable interpretation, the
Departments' proposed rule would warrant re-evaluation in appropriate
cases under well-established principles. See Brand X, 545 U.S. at 982;
cf. Ventura, 537 U.S. at 16-17 (within broad limits, the INA entrusts
agencies, not circuit courts, to make basic asylum eligibility
determinations).
The Departments disagree with commenters' assertions that the rule
would render it ``virtually impossible'' to prevail on asylums claim
involving membership in a particular social group or undermine the
concept of ``case-by-case'' adjudication of particular-social-group
claims, as described in Matter of A-B-, 27 I&N Dec. 316. Assuming the
formulation of the proposed particular social group would, if
supported, meet the definition of such a group in the first instance--
i.e., assuming the proposed particular social group sets forth a prima
facie case that the group is based on an immutable or fundamental
characteristic, is defined with particularity, and is recognized as
socially distinct--the rule does not alter an adjudicator's
responsibility to determine whether the facts and evidence of each
individual case ultimately establish that the proposed particular
social group is cognizable. Thus, whether a proposed group has--see,
e.g., Matter of Toboso-Alfonso, 20
[[Page 80314]]
I&N Dec. 819, 822 (BIA 1990) (designated as precedent by Attorney
General Order No. 1895-94 (June 12, 1994)) (homosexuals in Cuba may be
a particular social group)--or has not--see, e.g., Matter of Vigil, 19
I&N Dec. 572, 575 (BIA 1988) (young, male, urban, unenlisted
Salvadorans do not constitute a particular social group)--been
recognized in other cases is not dispositive of whether the proposed
particular social group in an individual case is cognizable. See
S.E.R.L. v. Att'y Gen., 894 F.3d 535, 556 (3d Cir. 2018)
(``Consequently, it does not follow that because the BIA has accepted
that one society recognizes a particular group as distinct that all
societies must be seen as recognizing such a group.''). Adjudicators
should not assume that a particular social group that has been found
cognizable in one case is cognizable in every other case in which it is
asserted or is cognizable in perpetuity, nor should they assume the
opposite. Id. Rather, if the proposed particular social group would be
legally cognizable if sufficiently supported by evidence, adjudicators
should continue to adjudicate particular social group claims on a case-
by-case basis.
Further, as the Departments have specified, while the listed groups
would be ``generally insufficient to establish a particular social
group'' because they do not meet the definition of such a group, the
Departments do not entirely foreclose the possibility of establishing
an asylum claim on those bases. Rather, the rule simply lists social
groups that, ``without more,'' generally will not meet the
particularity and social distinction requirements for particular social
group. 85 FR at 36279.
Such general guidelines are an appropriate use of agency authority
that comports with the Attorney General's decision in Matter of A-B-.
Cf. 8 CFR 208.4(a)(4),(5), 1208.4(a)(4), (5) (providing general
categories of circumstances that may qualify as changed circumstances
or extraordinary circumstances for purposes of INA 208(a)(2)(D), 8
U.S.C. 1158(a)(2)(D)); 8 CFR 212.7(d), 1212.7(d) (``The Attorney
General, in general, will not favorably exercise discretion under
section 212(h)(2) of the Act . . . with respect to immigrant aliens who
are inadmissible under section 212(a)(2) of the Act in cases involving
violent or dangerous crimes, except in extraordinary
circumstances[.]''); Matter of Y-L-, 23 I&N Dec. at 274-76
(establishing a general presumption that aggravated felony drug
trafficking crimes are ``particularly serious crimes'' for purposes of
INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B)). The Departments are
providing clarity on this issue through rulemaking, rather than through
other forms of sub-regulatory guidance or through the development of
case law in individual adjudications, in order to promote much needed
uniformity and clarity on the particular-social-group issue. See also
Memorandum from Jefferson B. Sessions, III, Attorney General, re:
Prohibition on Improper Guidance Documents 1 (Nov. 16, 2017), https://www.justice.gov/opa/press-release/file/1012271/download (in contrast
with issuing informal ``guidance documents,'' ``notice-and-comment
rulemaking . . . has the benefit of availing agencies of more complete
information about a proposed rule's effects than the agency could
ascertain on its own, and therefore results in better decision
making''). The Department applies the same response to address
commenters' concerns with respect to the ``broad wording'' of the
groups that the rule describes as generally not cognizable for asylum
claims.
The Departments also disagree with commenters that the rule is
unwise or discriminatory, or that the purpose of this rule is to
exclude certain groups of applicants or target individuals from Central
America and Mexico. As stated above, the rule is not ``immoral,''
motivated by racial animus or promulgated with discriminatory intent.
Rather, it is rooted in case law from the BIA, multiple circuits, and
the Supreme Court, none of which have evinced a racial or
discriminatory animus. Further, the rule is intended to help the
Departments better allocate limited resources in order to more
expeditiously adjudicate meritorious asylum, statutory withholding of
removal, and CAT protection claims. Relatedly, with respect to
commenters' concerns about this rule's potential effect on certain,
discrete groups--e.g., LGBTQ individuals, minors, and other specific
nationalities--the Departments note that they have codified a long-
standing test for determining cognizability of particular social groups
and have set forth a list of common fact patterns involving particular-
social-group claims that generally will not meet those well-established
requirements. The Departments did not first determine which groups
should or should not be cognizable and craft a rule around that
determination, and the rule does not single out any discretely-labeled
groups in the manner suggested by commenters. Moreover, as the rule
makes clear, it applies ``in general'' and does not categorically rule
out specific claims depending on the claim's evidentiary support.
Further, because each asylum application is adjudicated based on its
own facts and evidentiary support and because the rule does not
categorically rule out specific claims, commenters' concerns about the
effects of the rule on broad, undifferentiated categories without
reference to specific claims are conclusory, conjectural, unfounded,
and wholly and inherently speculative.
With respect to commenters' claims that the social groups that
would be dismissed under the rule would historically encompass a large
number of potentially successful asylum claims, the Departments
reiterate that they are setting forth, by regulation, a reasonable
interpretation of the statutory term ``particular social group'' that
will ameliorate stressors upon the healthy functioning of our
immigration system and encourage uniformity of adjudications. Even
assuming, without deciding, that there are other, broader
interpretations of the term ``particular social group'' that might
encompass a larger number of asylum applicants, the relevant inquiry is
not whether the Departments' interpretation is the preferred
interpretation or even the best interpretation. Rather the relevant
inquiry is whether the Departments' interpretation is reasonable. See
Chevron, 467 U.S. at 845; see also Holder v. Martinez Gutierrez, 566
U.S. 583, 591 (2012) (observing that the agency's ``position prevails
if it is a reasonable construction of the [INA], whether or not it is
the only possible interpretation or even the one a court might think
best''). The regulations indeed set forth a reasonable interpretation
of the term ``particular social group,'' for the reasons described
above. The Departments also note again that the rule will not
categorically exclude the listed groups, rather it issues guidance that
such groups will ``generally'' not meet the requirements of a
cognizable particular social group ``without more.''
Relatedly, commenters' statements that the rule would result in
denial of meritorious claims are circular. A claim is meritorious if it
meets all of the statutory requirements for asylum, including, where
appropriate, the ambiguous statutory requirement of demonstrating
``membership in a particular social group.'' The Departments note the
commenters' position that the term should be defined more broadly than
what the Departments proposed, and, to be sure, a broader definition
would result in more groups being recognized as cognizable. However,
for the reasons explained in the NPRM, 85 FR at
[[Page 80315]]
36277-79, and throughout this rulemaking, the Departments have set
forth a reasonable definition of the term as part of their well-
established authority to do so. To the extent that applicants are
unable to meet the statutory requirements, including ``membership in a
particular social group'' as that term is reasonably defined by the
Departments, their claims are not meritorious.
The Departments believe that commenter assertions that parties will
need to prove that they do not belong in or are distinct from a listed
particular social group misconstrue the particular social group
analysis. People may, and are likely to, belong to multiple groups,
which might or might not include cognizable particular social groups.
An applicant need not prove that he or she does not belong to a non-
cognizable group, only that he or she belongs to a cognizable group and
was persecuted on account of that membership. Membership in a non-
cognizable group does not negate one's membership in a cognizable
group. Thus, an asylum applicant who has membership in one of the
listed groups, which will generally not be cognizable without more,
does not preclude an applicant from prevailing on a separate cognizable
claim.
The Departments disagree with commenter assertions that the rule
impermissibly creates a negative presumption against cognizability of
the listed groups. As an initial point, the listed groups, as discussed
in the NPRM, 85 FR at 36279, are generally rooted in case law, and
commenters neither allege that the circuit court case law underlying
the listing of these groups establishes a ``negative presumption''
against groups that have not been recognized in that case law, nor urge
the Departments to abandon their longstanding policy to treat circuit
court case law as binding--including decisions regarding the
cognizability of alleged particular social groups--in the circuit in
which it arises. Thus, to the extent that commenters disagree with the
Departments' codification of existing case law, that disagreement lies
with the case law itself. Additionally, in the Departments' experience,
many advocates treat the recognition of a particular social group--
either by the Board or a circuit court--as establishing a positive
presumption, if not a categorical rule, that the group is cognizable in
every case, yet commenters expressed no concern with that type of
presumption. Cf. S.E.R.L., 894 F.3d at 556 (``S.E.R.L. relies heavily
on [Matter of A-R-C-G-], in which the Board considered a group
consisting of married female victims of domestic violence.''); Amezcua-
Preciado v. U.S. Att'y Gen., 943 F.3d 1337, 1344 (11th Cir. 2019)
(discussing similar proposed particular social groups across multiple
circuits that closely tracked the group recognized by the BIA in Matter
of A-R-C-G-); Del Carmen Amaya-De Sicaran v. Barr,--F.3d--, 2020 WL
6373124 (4th Cir. 2020) (noting decisions from other circuits
addressing similar proposed particular social groups that closely
tracked the group recognized by the BIA in Matter of A-R-C-G-). As the
Departments discussed, supra, the rule does not depart from
longstanding principles regarding the case-by-case nature of asylum
adjudications. Thus, adjudicators do not apply a positive presumption
that a particular social group that has been found cognizable in one
case is cognizable in every other case in which it is asserted or is
cognizable in perpetuity, nor do they apply a categorical negative
presumption that a group listed in the rule is always and in every case
not cognizable. Nothing in the rule creates categorical presumptions,
either positive or negative.
It is always the applicant's burden to demonstrate that he or she
belongs to a cognizable particular social group and must set forth the
facts and evidence to establish that claim, regardless of whether or
not the proposed group is described in this rule. INA 208(b)(1)(B), 8
U.S.C. 1158(b)(1)(B). This rulemaking highlights common proposed groups
that generally, without more, will not meet an applicant's burden to
demonstrate membership in a ``particular social group,'' and the burden
remains on the applicant, as it always has, to demonstrate that he or
she is a member of a cognizable particular social group. Id. This
rulemaking puts applicants on notice that such groups, generally,
without more, will not be cognizable. To the extent that an applicant
believes that his or her membership in one of the listed groups should
nevertheless be recognized, he or she may present his or her claim
stating why the proposed group is cognizable and, as appropriate,
appeal it to the BIA and a Federal circuit court.
The commenters' statements about the Attorney General's authority
to certify cases and issue precedential decisions relate to powers
delegated to the Attorney General by Congress that have existed for
decades and are far outside of the scope of this rulemaking. INA
103(a)(1), (g), 8 U.S.C. 1103(a)(1), (g); 8 CFR 1003.1(h). All
decisions in the immigration system are made in accordance with the
evidence and applicable law and policy. In particular, EOIR's mission
remains the same--to adjudicate cases in a fair, expeditious, and
uniform manner. See EOIR, About the Office, https://www.justice.gov/eoir/about-office (last updated Aug. 14, 2018); see also 8 CFR
1003.1(d)(1)(ii) (``Board members shall exercise their independent
judgment and discretion in considering and determining the cases coming
before the Board[.]''); 8 CFR 1003.1(e)(8)(ii) (``[T]he Director shall
exercise delegated authority from the Attorney General identical to
that of the Board[.]''); 8 CFR 1003.10(b) (``immigration judges shall
exercise their independent judgment and discretion'').
The Departments decline to incorporate the commenter recommendation
to codify either the Matter of Acosta standard for particular social
group, which required only that a group be immutable, or the alleged
UNHCR standard, which commenters stated requires immutability and that
the group ``be perceived as a group by society'' in lieu of the Matter
of M-E-V-G- standard, which requires immutability, particularity, and
social distinction. To do so would be to shirk decades of development
in particular social group claims in favor of a standard set forth
shortly after enactment of the Refugee Act of 1980, when ``relatively
few particular social group claims had been presented'' to immigration
adjudicators, and which ``led to confusion and a lack of consistency''
in subsequent years as adjudicators struggled with ``numerous and
varied'' proposed groups. See Matter of M-E-V-G-, 26 I&N Dec. at 231.
Moreover, ``immutability, while important, has never been the last or
only word on the definition of a social group,'' because ``[m]any
social groups are labile in nature.'' Ahmed v. Ashcroft, 348 F.3d 611,
617 (7th Cir. 2003). Further, notwithstanding the commenter's statement
that the M-E-V-G- standard is confusing, the Departments note that the
nearly all of the circuits have applied the M-E-V-G- test and the Third
and Ninth Circuits have expressly accorded Chevron deference to that
framework. See, e.g., S.E.R.L., 894 F.3d at 554 n.20 (collecting
cases). As the commenter notes, the Seventh Circuit has neither
rejected nor endorsed the framework.
Relatedly, the Departments will not incorporate commenter
suggestions to expand the regulatory language with respect to the
requirement of
[[Page 80316]]
immutability to include characteristics that are ``so fundamental to
individual identity or conscience that it ought not be required to be
changed[,]'' as stated in Matter of Acosta. 19 I&N Dec. at 233.
Contrary to the commenter's assertion, the Departments clearly noted in
the NPRM that this rulemaking codifies the ``longstanding
requirements'' of immutability, particularity, and social distinction,
recognizing that ``[i]mmutability entails a common characteristic: A
trait that the members of the group either cannot change, or should not
be required to change because it is fundamental to their individual
identities or consciences.'' 85 FR at 36278 (internal quotations
omitted) (citing Matter of Acosta, 19 I&N Dec. at 233). Accordingly,
the Departments believe that this language adequately addresses the
commenter concerns without further expanding the definition in the
regulatory language.
The Departments disagree with commenters' concerns that the rule's
requirement that the particular social group must have existed
independently of the alleged persecutory acts and cannot be defined
exclusively by the alleged harm is arbitrary. 85 FR at 36278. This
codifies the Attorney General's analysis for determining whether a
social group has been defined ``circularly,'' as laid out in Matter of
A-B-, 27 I&N Dec. at 334 (``To be cognizable, a particular social group
must `exist independently' of the harm asserted in an application for
asylum or statutory withholding of removal.''); see generally Matter of
M-E-V-G-, 26 I&N Dec. at 243 (``The act of persecution by the
government may be the catalyst that causes the society to distinguish
[a collection of individuals] in a meaningful way and consider them a
distinct group, but the immutable characteristic of their shared past
experience exists independent of the persecution.''). In response to
commenters' assertions that the Convention allows for particular social
groups that do not exist independently of the persecution, and that
this rule reflects a ``departure'' from the current particular-social-
group adjudication, the Departments reiterate that ``[t]he `independent
existence' formulation'' has existed for some time and ``has been
accepted by many courts.'' 85 FR at 36278; see, e.g., Perez-Rabanales
v. Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (``A sufficiently distinct
social group must exist independent of the persecution claimed to have
been suffered by the alien and must have existed before the alleged
persecution began.''); Lukwago, 329 F.3d at 172 (``We agree that under
the statute a `particular social group' must exist
*COM007*independently of the persecution suffered by the applicant for
asylum.''); accord Amaya-De Sicaran, 2020 WL 6373124 at *5 (``The
proposition that a cognizable particular social group cannot be defined
by the underlying persecution is hardly controversial. The anti-
circularity principle--and the Chevron deference to which it is
entitled--has won wide acceptance among the circuit courts . . . . Even
prior to the Attorney General's decision, we have applied the anti-
circularity principle . . . . And a broader examination of caselaw pre-
Matter of A-B- confirms that this is no new proposition.'').
In recent litigation, asylum seekers did ``not challenge A-B-'s
description of the circularity rule'' and, the court determined, A-B-'s
test sets forth ``exactly the analysis required to determine whether a
particular claim is or is not circular.'' Grace II, 965 F.3d at 905.
For courts that have rejected this ``independent existence''
requirement, see, e.g., Cece, 733 F.3d at 671-72, both subsequent
decisions recognizing the requirement, see, e.g., Matter of A-B-, 27
I&N Dec. 316, and Matter of M-E-V-G-, 26 I&N Dec. 227, and the
Departments' proposed rule codifying it would warrant re-evaluation
under well-established principles, see Brand X, 545 U.S. at 982; see
also Amaya-De Sicaran, 2020 WL 6373124 at *5 (``The Attorney General's
[anti-circularity formulation] in Matter of A-B- is not arbitrary and
capricious.'').
The Departments disagree with commenters' concerns about due
process violations with respect to the rule's requirement that, while
in proceedings before an immigration judge, an applicant must ``first
define the proposed particular social group as part of the asylum
application or otherwise in the record'' or ``waive any claim based on
a particular social group formulation that was not advanced.'' To the
extent that this requirement allegedly ``goes further than'' Matter of
W-Y-C-& H-O-B-, 27 I&N Dec. 189, as the commenter alleges, this
requirement is merely a codification of the longstanding principle that
arguments not made in front of an immigration judge are deemed waived
for purposes of further review. See, e.g., In re J-Y-C-, 24 I&N Dec.
260, 261 n.1 (BIA 2007) (claim not raised below is not appropriate to
consider on appeal).
Contrary to commenters' concerns, the rule does not violate notions
of fairness or due process.\43\ Nothing in the rule eliminates an
alien's right to notice and an opportunity to be heard, which are the
foundational principles of due process. See Matthews v. Eldridge, 424
U.S. 319, 348-49 (1976) (``The essence of due process is the
requirement that a person in jeopardy of serious loss (be given) notice
of the case against him and opportunity to meet it.'' (cleaned up)).
Aliens remains subject to specified procedures regarding claims of a
fear of return to an alien's country of nationality, including the
ability to have a claim reviewed or heard by an immigration judge.
Moreover, the fact that applicable law may limit the types of claims an
alien may bring--e.g., an asylum claim based on a fear of persecution
unrelated to one of the five statutory grounds in INA 101(a)(42), 8
U.S.C. 1101(a)(42)--or the ability of an alien to bring an asylum or
statutory withholding claim at all--e.g., an alien convicted of an
aggravated felony for which the alien was sentenced to an aggregate
term of imprisonment of at least five years, INA 208(b)(2)(A)(ii),
(B)(i) and 241(b)(3)(B)(ii), 8 U.S.C. 1158(b)(2)(A)(ii), (B)(i) and
1231(b)(3)(B)(ii)--does not mean that an alien has been deprived of due
process. As explained in the NPRM and reiterated herein, this rule is
rooted in well-established law and does not violate an alien's due
process right regarding an application for relief or protection from
removal.
---------------------------------------------------------------------------
\43\ Asylum is a discretionary benefit demonstrated by the text
of the statute that states the Departments ``may grant asylum,'' INA
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) (emphasis added); Dep't of
Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1965 n.4 (2020)
(``A grant of asylum enables an alien to enter the country, but even
if an applicant qualifies, an actual grant of asylum is
discretionary.''), and provides authority to the Attorney General
and Secretary of Homeland Security 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, ``there is no
constitutional right to asylum per se.'' Mudric v. Att'y Gen. of
U.S., 469 F.3d 94, 98 (3d Cir. 2006). 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.
---------------------------------------------------------------------------
Some commenters objected to the procedural requirement that an
alien must initially define the proposed particular social group as
either part of the record or with the application. The INA directs the
Attorney General to establish procedures for the consideration of
asylum applications, INA 208(d)(1), 8 U.S.C. 1158(d)(1), and
regulations already require both an
[[Page 80317]]
application for an alien to seek asylum, 8 CFR 208.3(a) and 1208.3(a),
and that the application be completed in full to be filed, id.
208.3(c)(3) and 1208.3(c)(3). To the extent that some commenters'
concerns regarded the exactness with which an alien must define the
particular social group, the Departments note that most asylum
applicants, 87 percent, have representation, EOIR, Current
Representation Rates (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1062991/download, and that aliens, if of limited English
proficiency, are able to avail themselves of the resources provided to
them by the government that detail pro bono or low cost alternatives.
One commenter worried that an alien would have to ``expertly craft
arguments in the English language in a way that satisfies highly
technical legal requirements.'' The Department disagrees that this is
what the regulations require. As an initial point, nothing in the rule
requires an alien to craft arguments when applying for asylum. Aliens,
with or without representation, have filled out asylum applications for
decades, including by stating particular social groups as a basis for
the asylum claim. Commenters have not submitted any evidence or alleged
any change in an alien's ability to complete the application over the
preceding 40 years, and the Departments are unaware of any reasons or
allegations that aliens are now less capable of filling out an
application--including stating a particular social group, if
appropriate--that has been used for years. An alien simply has to state
in the application why the alien is afraid. As noted in the NPRM, the
specific form of the delineation will not be considered over and above
the substance of the alleged particular social group. Further, if there
are deficiencies, the alien will be provided an opportunity to correct
them. Nothing in the rule requires aliens to ``craft arguments''
meeting ``highly technical legal requirements,'' and commenters'
suggestions to the contrary are simply not consistent with either the
rule and the longstanding practice.
One commenter indicated that it was the asylum officer's or
immigration judge's duty to assist in developing the record, citing
section 240(b)(1) of the Act, 8 U.S.C. 1229a(b)(1); Jacinto, 208 F.3d
at 734 (an immigration judge has the duty to fully develop the record
where a respondent appears pro se); and Agyeman v. INS, 296 F.3d 871,
877 (9th Cir. 2002) (an immigration judge must adequately explain the
procedures to the respondent, including what he must prove to prevail
at the hearing). Even accepting the immigration judge's duty as
described by the cited case law, this is not in conflict with the rule,
as the rule clearly explains by regulation what an applicant must do to
demonstrate a cognizable particular social group, a concept which was
previously articulated in disparate BIA decisions that have been
interpreted differently by the various circuits. Additionally, even if,
as stated in Jacinto, an immigration judge has a duty to fully develop
the record, this does not obviate the applicant's burden of
demonstrating at least prima facie eligibility for the relief which he
or she is seeking prior to proceeding to a more intensive hearing.
Regarding commenters' concerns focused on the ability for aliens to
seek redress after an improper particular social group was presented
based on ineffective assistance of counsel, the Departments note that
the rule is consistent with both practice and applicable law. If a
particular social group is not presented because the alien did not tell
his or her counsel about it, then there has been no ineffective
assistance on the part of counsel. If the alien did provide his or her
counsel with a particular social group and counsel elected not to
present it as a strategic choice, then there is no basis to reopen the
proceedings. See In re B-B-, 22 I&N Dec. 309, 310 (BIA 1998)
(``subsequent dissatisfaction with a strategic decision of counsel is
not grounds to reopen''); cf. Matter of Velasquez, 19 I&N Dec. 377, 382
(BIA 1986) (concession of attorney is binding on an alien absent
egregious circumstances). Nevertheless, the Departments recognize there
may be unique ``egregious circumstances'' in which reopening based on
ineffective assistance of counsel may be warranted, provided that the
appropriate procedural requirements for such a claim are observed. See
Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988). Thus, the
Departments are revising the final rule to account for such a scenario,
though they expect such claims to be rare.
The Departments disagree with the commenters' fairness concerns
with respect to the rule's requirement that applicants define the
proposed particular social group as part of the asylum claim. As an
initial point, asylum applicants have provided definitions of alleged
particular social groups in asylum applications for many years, and
there is no evidence of any recent change that would preclude them from
doing so. The commenters' concerns may be based on an inaccurate belief
that the rule requires legal precision of a particular social group,
but as discussed above, that is simply not the case. Adjudicators are
experienced with addressing the substance rather than the form of a
claim, and articulation deficiencies will have an opportunity for
correction before an immigration judge renders a decision.
The Departments also acknowledge commenters' concerns about the
``ever changing landscape'' of particular-social-group law and the due
process concerns associated with that. The ``ever-changing landscape''
is, in fact, a principal animating factor behind this rulemaking, as
the Departments believe the rule will function as a ``hard reset'' on
the divergent--and sometimes contradictory--case law regarding
particular social groups over the past several years in lieu of clearer
guidelines that are both reasonable and easier for adjudicators and
applicants alike to follow. In particular, the current state of case
law may make it confusing for applicants to appreciate what is or is
not a cognizable group, and the rule directly addresses that concern by
providing clear definitions that should allow for more effective
consideration of meritorious claims. In short, providing clearer
guidance should reduce due process concerns, rather than increase them.
Similarly, the Departments disagree that this rulemaking will be
harmful to pro se respondents. Although there are comparatively few pro
se asylum applicants as an initial matter, EOIR, Current Representation
Rates (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1062991/download, the Departments believe that this regulation will provide
clarity to all respondents, including those who are pro se. That
clarity will also allow immigration judges to better consider pro se
claims and ensure that the record is developed appropriately consistent
with the law.
The Departments believe that this clarity will also assist
immigration judges in their adjudications, contrary to commenters'
assertions. The Departments also disagree with commenters' statements
that reducing the amount of time that adjudicators must spend
evaluating claims is an improper purpose for the rule. The Departments
contest allegations that they may not take regulatory action to help
improve efficiencies with immigration adjudications. Regardless, as
noted in the NPRM, reducing the amount of time that adjudicators must
spend evaluating claims and more uniform application of the law are two
additional benefits to ``providing clarity to [the particular social
group] issue.'' 85 FR at 36279.
[[Page 80318]]
The Departments note commenter concerns that the rule does not
create a regulatory requirement for immigration judges to clarify the
particular social group for the record and instead allows for
immigration judges to pretermit without holding an evidentiary hearing.
The Departments note that the asylum application itself, which the
applicant must sign attesting to the application's accuracy, and in
which the applicant has had the opportunity to list his or her
particular social group, is already part of the record without any
further need for the immigration judge to clarify. Because the burden
is always on the asylum applicant to establish eligibility, INA
208(b)(1)(B), 8 U.S.C. 1158(b)(1)(B), and because the immigration judge
must remain a neutral arbiter of the claim, EOIR, Ethics and
Professionalism Guide for Immigration Judges 2 (Jan. 26, 2011), https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf (``An Immigration Judge shall
act impartially and shall not give preferential treatment to any
organization or individual when adjudicating the merits of a particular
case.''), it would not be appropriate for the immigration judge to
assist the alien in crafting his or her claim. Nevertheless,
immigration judges are experienced and well-trained adjudicators who
are adept at understanding the substance of a claim even if it is not
perfectly articulated. Moreover, an alien will have 10 days to respond
to any attempt to pretermit an application as legally insufficient, and
there is no expectation that immigration judges will fail to follow the
rule's requirements on that issue. In short, the Departments do not
expect immigration judges to abdicate their duties to the law in
considering an applicant's asylum claim.
The Departments disagree with commenters' concerns that the rule,
in their estimation, violates the Rehabilitation Act of 1973, 29 U.S.C.
794, because it does not provide exceptions for minors, mentally ill
persons, or individuals otherwise lacking competency.\44\ The
Departments note that no alien is excluded from applying for asylum--
nor excluded from participating in processes to adjudicate such an
application--on account of a disability. Further, all applicants for
asylum are adjudicated under the same body of law, regardless of any
particular individual characteristics, and nothing in the rule changes
that. The Departments are unaware of any law requiring all asylum
claims from minors, mentally ill persons, or incompetent aliens to be
granted or establishing a categorical rule that each of those groups,
regardless of any other characteristics, necessarily states a
cognizable particular social group. The Departments are also unaware of
any blanket exceptions to statutory eligibility for asylum for these
identified groups. The rule does not change any established law
regarding minors, e.g., INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C), or
those who lack mental competency, e.g., Matter of M-A-M-, 25 I&N Dec.
at 480, 481-83 (holding that immigration judges should ``consider
indicia of incompetency throughout the course of proceedings'' and
implement appropriate safeguards, where necessary). In short, the rule
provides clarity for asylum claims relevant to all aliens and does not
alter any existing accommodations generally made for the identified
groups. Further, because each asylum application is adjudicated based
on its own facts and evidentiary support and because the rule does not
categorically rule out specific claims, commenters' concerns about the
effects of the rule on broad, undifferentiated categories without
reference to specific claims are conclusory, conjectural, unfounded,
and wholly and inherently speculative.
---------------------------------------------------------------------------
\44\ The Departments note that the Rehabilitation Act applies to
individuals with disabilities, and the status of being a minor does
not automatically qualify someone as an ``individual with a
disability'' under the statutory definition of that term. 29 U.S.C.
705(2).
---------------------------------------------------------------------------
4.1.1. Past or Present Criminal Activity or Association (Including Gang
Membership)
Comment: One organization noted that at least one court has
recognized asylum claims from former child soldiers forced to commit
bad acts, citing Lukwago, 329 F.3d at 178-180. The organization also
stated that the United States has enacted the Child Soldiers
Accountability Act, Public Law 110-340, imposing criminal and
immigration penalties for those who use child soldiers. See 18 U.S.C.
2442. The organization emphasized that children recruited into other
types of criminal acts, like gang activity, ``are not materially
different from the children who fight on the front lines of conflicts
in other parts of the world.'' The organization concluded by
encouraging the government to extend its opposition to the use of child
soldiers to ``a willingness to protect children fleeing from all types
of forced criminal activity.''
Another organization emphasized that past activity is an immutable
characteristic that ``cannot be undone,'' noting that an individual's
personal biographical history cannot be changed. The organization noted
that if a gang maintains that a child forcibly recruited is a member
for life, the child would be regarded as a traitor for trying to leave
the gang at a later time and would have a reasonable basis to fear for
his or her life.
One organization alleged that the rule would change the law
``without explanation or justification'' by overturning the decisions
of multiple Federal courts of appeals. The organization specifically
referenced Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010) and
Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009). The organization
claimed this would be contrary to the stated goal of the ``laundry
list,'' which is legal consistency. See 85 FR at 36278. The
organization also contended that the rule would be contrary to the
intent behind the asylum bars, which preclude asylum based on a range
of criminal conduct but ``pointedly'' do not preclude relief on account
of previous gang membership. INA 208(b)(2)(A)-(B), 8 U.S.C.
1158(b)(2)(A)-(B). The organization also claimed the rule is contrary
to congressional intent, claiming it makes no attempt to explain ``why
the statutory bars'' on particular former persecutors ``should be
extended by administrative interpretation to former members of gangs.''
Benitez Ramos, 589 F.3d at 430.
Response: The Departments note that the case cited by the
commenter, Lukwago, 329 F.3d 157, which the commenter alleges
recognized the likelihood of a cognizable particular social group
involving former child soldiers, was published in 2003, well before the
now-codified test for cognizability had been developed in Matter of S-
E-G-, 24 I&N Dec. at 585-86 and Matter of E-A-G-, 24 I&N Dec. at 594-
95. See Matter of M-E-V-G-, 26 I&N Dec. at 236-37 & n.11. Accordingly,
this decision does not lend support to the commenter's claim. The
Departments further note, however, that the court in Lukwago
acknowledged that ``given the ambiguity of the [term ``particular
social group''], [the court's] role is limited to reviewing the BIA's
interpretation, using Chevron deference to determine if it is a
``permissible construction of the statute.'' Lukwago, 329 F.3d at 171.
Additionally, the Child Soldiers Accountability Act is unrelated to
this rulemaking.
Although past activity is an immutable characteristic, immutability
alone is not sufficient to establish a cognizable particular social
group; particularity and social distinction are also required. See
Matter of S-E-G-, 24 I&N Dec. at 585-86; Matter of E-A-G-,
[[Page 80319]]
24 I&N Dec. at 594-95; Matter of M-E-V-G-, 26 I&N Dec. at 237.
The Departments disagree with commenters that the rule would
undermine establishing legal consistency and uniformity in the
immigration laws, as it should encourage such consistency across all
circuits by providing much-needed guidance on an ambiguous term in the
Act. In fact, the circuits are themselves split on the issue of whether
former gang membership is cognizable as a particular social group.
Compare Martinez v. Holder, 740 F.3d 902, 910-12 (4th Cir. 2014)
(former member of a criminal street gang may be a particular social
group) and, Benitez-Ramos v. Holder, 589 F.3d 426, 430-31 (7th Cir.
2009) (same), with Gonzalez v. U.S. Att'y Gen., 820 F.3d 399, 405 (11th
Cir. 2016) (agreeing with First Circuit that former gang members do not
constitute a cognizable ``particular social group''); Cantarero v.
Holder, 734 F.3d 82, 85-86 (1st Cir. 2013) (``The BIA reasonably
concluded that, in light of the manifest humanitarian purpose of the
INA, Congress did not mean to grant asylum to those whose association
with a criminal syndicate has caused them to run into danger. . . .
Such recognition would reward membership in an organization that
undoubtedly wreaks social harm in the streets of our country. It would,
moreover, offer an incentive for aliens to join gangs here as a path to
legal status.''); and Arteaga v. Mukasey, 511 F.3d 940, 945-46 (9th
Cir. 2007) (``We cannot conclude that Congress, in offering refugee
protection for individuals facing potential persecution through social
group status, intended to include violent street gangs who assault
people and who traffic in drugs and commit theft.''). See also Cong.
Research Serv., Asylum and Gang Violence: Legal Overview 20 (Sept. 5,
2014) (``Granting asylum to aliens based on their membership in groups
made up of former gang members is more complicated in that several
Federal courts of appeals have evidenced at least some willingness to
view former gang members as a particular social group, while others
have suggested that granting asylum to those who belong to
organizations that have perpetrated acts of violence or other crimes in
their home countries is contrary to the humanitarian purposes of
asylum.''). To the extent that commenters assert that circuit case law
conflicts with the Departments' rule, such conflicts would warrant re-
evaluation in appropriate cases by the circuits under well-established
principles. See Brand X, 545 U.S. at 982.
4.1.2. Presence in a Country With Generalized Violence or a High Crime
Rate
Comment: One commenter objected generally to the fact that the rule
excludes asylum seekers coming from ``a country with generalized
violence or a high crime rate,'' as the commenter believes this to be
irrelevant. The commenter stated that the restriction appears designed
to target individuals from specific countries and runs contrary to the
purpose of asylum. The commenter stated that ``[i]t is natural'' for
people to flee countries with violence that the governments are unable
to control. One organization claimed the restriction will have a
prejudicial impact on asylum seekers from Central America. Another
organization specifically referenced the high crime rate in many
African countries, claiming that violence is ``rampant'' due to
``national security forces'' and ``copycat violators.'' Another
commenter stated generally that ``[t]he choice for them was to be
killed and/or raped or to risk the hardships of seeking asylum in the
U.S.,'' alleging that the frequency of these types of abuses does not
make it reasonable to exclude them from eligibility for asylum claims.
One organization claimed the restriction would unfairly impact LBGTQ+
individuals who are ``disproportionately victimized'' by violent crime
and gender-based violence.
One organization noted that it would be ``difficult if not
impossible'' to meet the three-prong test found in Matter of M-E-V-G-,
26 I&N Dec. at 237, using a claim in which the particular social group
is based on ``presence in a county with generalized violence or a high
crime rate.'' However, the organization expressed concern that this
restrictive language (which it claims is not directly related to the
particular social group definition at issue) would likely cause
adjudicators to deny asylum applications solely because the applicant
came from a country with a high crime rate, even if the applicant were
to articulate a particular social group unrelated to the crime rate.
One organization claimed the rule is contrary to established case
law recognizing that presence in a country with generalized violence or
a high crime rate is ``irrelevant'' to evaluating an asylum seeker's
claim. The organization noted that the Fourth Circuit has explained in
at least three published opinions that criminal activities of a gang
affecting the population as a whole are ``beside the point'' in
evaluating an asylum seeker's particular claim. See Alvarez-Lagos v.
Barr, 927 F.3d 236, 251 (4th Cir. 2019); Zavaleta-Policiano v.
Sessions, 873 F.3d 241, 248 (4th Cir. 2017); Crespin-Valladares v.
Holder, 632 F.3d 117, 127 (4th Cir. 2011).
Another organization alleged that the ``social distinction''
requirement makes it nearly impossible to develop a cognizable
particular social group that does not reference the asylum seeker's
country of origin. As a result, the organization claimed the rule would
``upend'' section 208 of the Act, 8 U.S.C. 1158, by preventing
individuals fleeing ``the most violent countries in the world'' from
receiving asylum or withholding of removal. The organization also
contended that the ``generalized violence'' category is arbitrary to
the extent it attempts to codify the statement in Matter of A-B- that
particular claims are unlikely to satisfy the statutory grounds for
demonstrating government inability or unwillingness to control the
persecutors. Matter of A-B-, 27 I&N Dec. at 320. The organization
claimed that attempting to codify that statement conflates two distinct
elements of the asylum test, as the question of whether the government
can control persecutors is distinct from whether a particular social
group is cognizable. The organization also alleged that the Departments
do not acknowledge or justify this conflation.
Response: The Departments acknowledge commenters' points that
generalized violence may be a driving force behind many people fleeing
their home countries. Although the suffering caused by such conditions
is regrettable, the Departments note that asylum was never intended to
protect individuals from generalized violence; instead, it was designed
to protect those from violence perpetrated upon them on the basis of a
protected ground, as well as other qualifying requirements. See Harmon
v. Holder, 758 F.3d 728, 735 (6th Cir. 2014) (``General conditions of
rampant violence alone are insufficient to establish eligibility.'').
Although circuit courts may not have been clear whether asylum
claims based on fear of generalized violence or high crime rates are
not cognizable on particular social group grounds or on nexus grounds
(or on both grounds),\45\ see, e.g., Melgar de Torres v. Reno, 191 F.3d
307, 314 (2d Cir. 1999) (``The increase in general crime that has been
documented in the record does not
[[Page 80320]]
lend support to an asylum claim since a well-founded fear of
persecution must be on account of an enumerated ground set forth in the
Act, and general crime conditions are not a stated ground.''); Umana-
Ramos v. Holder, 724 F3d 667, 670 (6th Cir. 2013) (``General conditions
of rampant gang violence alone are insufficient to support a claim for
asylum.''), they have been consistent that such fears are not a
cognizable basis for asylum, even, contrary to one commenter, in the
Fourth Circuit. See, e.g., D.M. v. Holder, 396 F. App'x 12, 14 (4th
Cir. 2010) (``As found by the Board, the Petitioners have failed to
show that they are at a greater risk of being victims of violent acts
at the hands of criminal gangs than any other member of the general
population in El Salvador. We have clearly held that a fear of general
violence and unrest is inadequate to establish persecution on a
protected ground.'').
---------------------------------------------------------------------------
\45\ Although the Departments have placed this category under
the definition of ``particular social group,'' it may also be
appropriately considered under the definition of ``nexus'' as well,
as the lists under both definitions are nonexhaustive.
---------------------------------------------------------------------------
The Departments believe that this rule--which establishes that
particular-social-group claims grounded in an applicant's presence in a
country with general violence or high crime rates, without more, will
generally not be cognizable--is consistent with the Act, international
law, and case law, particularly in connection to the definition of
particular social group discussed, supra, which requires that the group
exist independently of the alleged harm. Relatedly, commenters'
allegations that the rule was crafted in response to the frequency of
types of harm suffered are misguided. With respect to establishing a
nexus to a protected ground, such as particular social group, it is not
the frequency or severity of abuses that would render such claims
insufficient, but rather the reasons for the abuse. Asylum is intended
to protect individuals who have suffered abuses for a specific reason,
on account of a protected ground. Cf. Delgado-Ortiz, 600 F.3d at 1151
(``Asylum is not available to victims of indiscriminate violence,
unless they are singled out on account of a protected ground.'').
The Departments further note that an alien coming from a country
with generalized violence or high crime rates is not precluded from
asylum on that basis alone; the rule merely establishes that a
particular-social-group claim premised upon general violence or high
crime rates will not, without more, prevail. To succeed on a
particular-social-group claim, an applicant must demonstrate that he or
she has been or will be targeted on the basis of immutable, particular,
and socially distinct characteristics, and the Departments believe that
groups defined by general violence or high crime rates generally do not
meet this threshold.
The Departments do not disagree with commenters who suggested that
it would be natural for individuals to flee countries where their
governments could not control violence. Indeed there are myriad reasons
that would encourage or compel an individual to leave his or her home
country. However, a government's inability or unwillingness to control
violence is but one factor for asylum eligibility with respect to
claims of persecution by non-state actors. Applicants must meet all
eligibility factors and merit a positive exercise of discretion to
warrant relief.
The Departments agree with commenters who stated that it would be
difficult for applicants whose particular social group is predicated
upon general violence or high crime rates in the country of origin to
demonstrate that their proposed group meets all three requirements of
immutability, particularity, and social distinction. However, the
Departments do not believe that a regulatory standard stating so would
lead adjudicators to deny applications where the applicant has
articulated a particular social group unrelated to the crime rate.
Rather, the Departments believe that this rulemaking offers clear
guidance to adjudicators and parties that such proposed groups, without
more, will not be cognizable. See 85 FR at 36278 (``The proposed rule
would further build on the BIA's standards and provide clearer guidance
to adjudicators regarding whether an alleged group exists and, if so,
whether it is cognizable as a particular social group in order to
ensure the consistent consideration of asylum and statutory withholding
claims.''). Furthermore, immigration judges and asylum officers undergo
training in which they learn to adjudicate asylum claims, including the
cognizability of particular social groups. The Departments are
confident that adjudicators are aptly prepared, through training and
experience, to adjudicate asylum claims without confusing the
particular-social-group analysis with other facets of asylum
eligibility requiring a separate analysis.
With respect to commenter statements that this rule is contrary to
established case law which, the commenter stated, established that a
country's generalized violence and high crime rates were ``irrelevant''
to the applicant's claim, the commenter appears to have conflated
relevance for sufficiency. The Fourth Circuit, in the cited cases,
determined that generalized violence or high crime rate did not
undermine claims where the court determined there was sufficient
evidence to establish a nexus to a protected ground. However, these
cases do not endorse a position that claims rooted in generally violent
conditions or high crime rates, without more, would be sufficient to
warrant a grant of asylum. See Alvarez-Lagos, 927 F.3d at 251;
Zavaleta-Policiano, 873 F.3d at 248; Crespin-Valladares, 632 F.3d at
127.
4.1.3. Being the Subject of a Recruitment Effort by Criminal,
Terrorist, or Persecutory Groups
Comment: One organization noted that the rule narrows the
definition of credible fear by ``eliminating claims to protection from
fear of gangs or terrorists.'' Another organization claimed there is no
support in the cases cited by the NPRM for making gang recruitment-
related particular social groups generally non-cognizable, emphasizing
that the NPRM does not provide any evidence as to why the courts should
not continue to consider recruitment-based particular social groups on
a case-by-case basis.
One organization noted that the U.S. government recognizes that
children are often targets for gang recruitment and gang violence in
their home countries. The organization expressed concern regarding the
rule's presumption that ``attempted recruitment'' or ``private criminal
acts'' are not sufficient for asylum, contending this ignores the
reality that many child asylum seekers flee their home countries
``precisely because the government is unable or unwilling to control
non-state actors like terrorist or gang organizations who would recruit
or harm children and families.''
One organization noted that UNHCR has emphasized the importance of
recognizing claims based on resistance to and desertion from non-state
armed groups, explaining that gangs may try to harm individuals who
have resisted gang activity, are opposed to gang practices, or attempt
to desert a gang.
Response: The Departments disagree with the commenter's assertion
that the rule eliminates any claims to protection. As stated above, the
rule will not eliminate any particular-social-group claims. Rather, it
sets forth a list of social group claims that will generally not be,
without more, cognizable. This does not foreclose the possibility that
an applicant could pursue or prevail on a claim in which they were the
subject of a recruitment effort by a criminal, terrorist, or
persecutory group. As noted by the NPRM, ``such facts could be the
basis for finding a particular social group, given the fact- and
society- specific nature of this determination.''
[[Page 80321]]
85 FR at 36279; see also Grace II, 965 F.3d at 906 (``[T]he record in
this case does not support the asylum seekers' argument that [the
Departments] have erected a rule against asylum claims involving
allegations of domestic and/or gang violence.''). However, as a general
rule, such groups will not be cognizable, consistent with existing
Attorney General and BIA precedent. Matter of A-B-, 27 I&N Dec. at 335
(``Victims of gang violence often come from all segments of society,
and they possess no distinguishing characteristic or concrete trait
that would readily identify them as members of such a group''); Matter
of S-E-G-, 24 I&N Dec. at 584 (``[Y]outh who have been targeted for
recruitment by, and resisted, criminal gangs may have a shared past
experience, which, by definition, cannot be changed. However, this does
not necessarily mean that the shared past experience suffices to define
a particular social group for asylum purposes.''); Matter of E-A-G-, 24
I&N Dec. at 594-95 (determining that ``persons resistant to gang
membership'' is not cognizable); see also Constanza v. Holder, 647 F.3d
749, 754 (8th Cir. 2011); see also Lizama v. Holder, 629 F.3d 440, 447
(4th Cir. 2011); Larios v. Holder, 608 F.3d 105, 109 (1st Cir. 2010);
Lushaj v. Holder, 380 F. App'x 41, 43 (2d Cir. 2010); Barrios v.
Holder, 581 F.3d 849, 855 (9th Cir. 2009). The Departments do not
dispute that children may be targets for gangs, gang recruitment, and
gang violence in their countries of origin. However, whether such
applicants for asylum have been harmed or fear harm from the gangs is
only one part of the overall asylum inquiry. Even a further showing
that the government is unwilling or unable to protect the applicant
would not be enough to merit a grant of asylum without meeting the
other eligibility requirements. As discussed above, an applicant must
also demonstrate that the harm he or she suffered or fears is on
account of protected ground, such as membership in a particular social
group.
4.1.4. The Targeting of the Applicant for Criminal Activity for
Financial Gain Based on Perceptions of Wealth or Affluence
Comment: Another organization claimed that history is full of
examples of persecution of classes of people on the basis of perceived
wealth or influence. The organization stated that, under the proposed
rule, the members of the kulak class who were killed after the Russian
Revolution or the many wealthy and middle class Cubans who fled the
Cuban Revolution would not have been recognized as persecuted social
groups.
Another organization contended that there is no legal basis or
support in the NPRM for precluding courts from analyzing particular
social groups involving wealth on a case-by-case basis. The
organization referenced the BIA's decision in Matter of A-M-E- & J-G-U-
, 24 I&N Dec. 69 (BIA 2007), aff'd Ucelo-Gomez v. Mukasey, 509 F.3d 70
(2d Cir. 2007) (cited at 85 FR at 36279), stating the fact that the BIA
held thirteen years ago that ``affluent Guatemalans'' is not a
cognizable particular social group ``does not even begin to support the
NPRM's sweeping proposal to bar all PSGs that mention wealth.''
Response: As noted in the NPRM, a social group which is founded
upon being targeted for criminal activity for financial gain or for
perceptions of wealth or affluence are generally, without more, unable
to meet the well-established requirements for cognizability. 85 FR at
36279; see Matter of A-M-E- & J-G-U-, 24 I&N Dec. at 75.
With respect to commenters who presented specific examples that
they alleged illustrated persecution of classes of people on the basis
of perceived wealth or influence, as well as comments suggesting that
the Departments are doing away with individualized analysis, the
Departments note again that there may exist examples of social groups
based on wealth that are cognizable, and that the listed social groups
have been identified as generally not cognizable, without more.
However, ``the regulation does not foreclose that, in rare
circumstances, such facts could be the basis for finding a particular
social group, given the fact- and society specific nature of this
determination.'' 85 FR at 36279; see Grace II, 965 F.3d at 906 (``[T]he
record in this case does not support the asylum seekers' argument that
[the Departments] have erected a rule against asylum claims involving
allegations of domestic and/or gang violence.'').
4.1.5. Interpersonal Disputes of Which Governmental Authorities Were
Unaware or Uninvolved
Comment: One organization noted that the rule would limit
particular social groups based on both ``interpersonal disputes of
which governmental authorities were unaware or uninvolved'' and
``private criminal acts of which governmental authorities were unaware
or uninvolved.'' The organization emphasized that it is unlikely that a
particular social group framed in this way would be cognizable;
however, because the fact pattern is included in the rule as a
``limiting concept,'' the organization expressed concern that
adjudicators would likely deny asylum based on this language, even
though the rule specifies that it applies ``in the context of analyzing
a particular social group.''
Another organization expressed concern that governments could
attempt to remove U.S. or international sanctions by demonstrating that
``private actors'' were carrying out persecution against political
dissidents and religious minorities. The organization noted that these
governments could use propaganda to ``inflame local residents against a
particular group,'' using the decimation of the Tutsis population in
Rwanda as an example. According to the organization, governments could
claim this was not a human rights violation because ``government
soldiers themselves took no part in the attack.'' Another organization
emphasized that violence is sometimes outside the state's reach, noting
that violent activity can occur where weak governments use allied armed
groups to provide security.
Response: As discussed above with respect to particular social
groups defined by general violence or high crime rates, the Departments
agree with commenters that it would be difficult to demonstrate that
particular social groups defined by interpersonal disputes of which
governmental authorities were unaware or uninvolved, without more, are
cognizable. However, immigration judges and asylum officers undergo
rigorous training on how to adjudicate asylum claims, including the
cognizability of particular social groups. The Departments are
confident that adjudicators are aptly prepared to adjudicate asylum
claims without confusing the particular social group analysis with
other facets of asylum eligibility requiring a separate analysis. The
Departments fail to see how setting forth a social group that the
commenter believes is unlikely to be presented is grounds for the
commenter's objection to the rule.
The Departments do not address comments raising concerns about
international sanctions or holding international governments
accountable for alleged human rights violations, as the Departments'
implementing statutes and regulations are unrelated to such matters,
which are more properly handled by the Department of State.
Comments raising concerns about non-governmental violence that
occurs ``outside the state's reach'' or in cases where ``weak
governments use allied armed groups to provide security'' do not alter
the Departments' determination that particular social
[[Page 80322]]
groups predicated upon interpersonal disputes of which governmental
authorities were unaware or uninvolved, without more, are generally not
cognizable. The commenter's statement about non-governmental violence
that occurs ``outside the state's reach'' is not sufficiently specific
for the Departments to draw any conclusion about its relevancy to such
social groups. Although the Departments must be explicit that they are
not endorsing the cognizability of such groups, the commenter's
proposed scenario regarding weak governments using allied armed groups
clearly would not involve governmental unawareness and is unlikely to
involve personal disputes.\46\
---------------------------------------------------------------------------
\46\ Regarding the commenters' specific example, the Departments
note that claims from Tutsis in Rwanda may also be framed in terms
of race or nationality which are not defined in the rule and are
separate from claims based on a particular social group.
---------------------------------------------------------------------------
4.1.6. Private Criminal Acts of Which Governmental Authorities Were
Unaware or Uninvolved
Comment: One organization noted generally that the rule would
remove protections for individuals fleeing violence from non-state
actors. Another organization claimed that the rule's exclusion of acts
``of which governmental authorities are unaware or uninvolved''
disproportionately affects the ability of children to seek asylum. The
organization noted that the ability of many children to access state
protection in their home country is dependent upon the adults in their
lives, emphasizing that not all children have an adult to help them
obtain protection. The organization also noted that some children who
go directly to government officials for protection may be dismissed.
One organization noted generally that it has ``long been determined''
that the government does not actually need to be aware of the threats
and that there is no requirement to report the persecution to the
government if doing so ``would be futile or place the applicant at
greater risk of harm,'' citing Bringas-Rodriguez v. Sessions, 850 F.3d
1051, 1062-72 (9th Cir. 2017) (en banc) and Lopez v. U.S. Att'y Gen.,
504 F.3d 1341, 1345 (11th Cir. 2007). Another organization claimed that
the rule disregards the ``well-documented fact'' that oppressive
governments utilize irregular forces for the purpose of denying their
actions. The organization emphasized that chronic violence arises when
a government is unwilling or unable to protect the life and liberty of
its citizens, claiming that this government inaction puts people at
risk of death. The organization concluded by alleging that the rule
would send these individuals back ``into mortal danger.''
Another organization claimed this portion of the rule would violate
the APA in at least six different ways. First, the organization alleged
that the rule is contrary to law, as the INA does not state or imply
that interpersonal or ``private'' acts cannot give rise to asylum.
Instead, the statute makes clear that such acts can do so if they
``rise to the level of persecution, are taken on account of a protected
ground, and are inflicted by actors the government is unable or
unwilling to control.'' Second, the organization claimed that it is
``manifestly unreasonable'' to use the particular social group analysis
to ``place entire groups of persecutors outside the asylum laws,''
noting that the particular social group analysis is dependent on the
nature of the group to which the survivor belongs rather than the
identity of the persecutor. Third, the organization alleged that a
general prohibition of asylum in all situations where the government is
``uninvolved'' in the persecution is ``arbitrary and contrary to law,''
claiming that the substitution of ``uninvolved'' for ``unable or
unwilling'' would render large categories of previously meritorious
claims ineligible. The organization also emphasized that the rule would
require survivors of persecution by non-state actors to report
persecution to authorities ``even where laws against gender-based
violence are limited or non-existent.'' The organization noted that
current asylum law allows applicants to submit evidence as to why
reporting this type of violence was impossible or dangerous, claiming
there is no legitimate justification for the prohibition of such
evidence.
Fourth, the organization claimed that the NPRM's use of the word
``private'' implicitly raises the ``unable or unwilling'' standard on
some claims. Fifth, the organization contended that the
``interpersonal'' category is ``even more sweeping'' and therefore
contrary to the INA, claiming that the plain meaning of the
``interpersonal'' violence category would bar all asylum claims. Sixth,
the organization claimed the ``interpersonal'' and ``private''
categories violate the INA to the extent that, in the Departments'
view, they apply to domestic or other gender-based violence. The
organization claimed this is ``at odds'' with the evidence, which
clearly shows that this type of violence is ``not simply a private
matter based on personal animosity.'' The organization also claimed
that the application of the ``interpersonal'' and ``private''
categories to domestic and other gender-based violence would violate
constitutional equal protection principles because the presumption
created by these categories would have a disproportionate effect on
women (as women are much more likely to experience violence by an
intimate partner).
Similarly, another organization noted that this portion of the rule
is especially damaging to gender and LGBTQ+ related claims because
``many are rooted in intimate partner or family violence that
government actors choose to ignore as private or family matters.'' The
organization emphasized the BIA's decision in Matter of A-R-C-G-, 26
I&N Dec. 338 (BIA 2014), holding that a Guatemalan woman should be
granted asylum on the basis of abuse by her former spouse, noting that
this precedent has allowed many female asylum seekers from Central
America to win cases. One organization stated that ``the very
indifference'' of governmental authorities to the plight of survivors
of gender-based violence proves that persecution exists, emphasizing
there is ``no good reason'' for denying the claims of survivors who can
show their government's failure to protect them.
Another organization claimed the rule ``condemns women to endure
various forms of domestic- and gender-based violence, stripping them of
the humanitarian protection of the United States.'' The organization
contended that this ``upends'' the longstanding recognition and
protection of particular social groups, across circuits, on the
following grounds: Femicide, Perdomo v. Holder, 611 F.3d 662, 662 (9th
Cir. 2010); honor killings, Sarhan v. Holder, 658 F.3d 649, 649 (7th
Cir. 2011); female genital mutilation, Mohammed v. Gonzales, 400 F.3d
785, 785 (9th Cir. 2005); arranged or inescapable marriages, Acosta
Cervantes v. Barr, 795 F. App'x 995, 995 (9th Cir. 2020); and ``other
forms of domestic violence,'' Mu[ntilde]oz-Ventura v. Barr, 799 F.
App'x 977, 977 (9th Cir. 2020). One organization contended that, by
dismissing violence against women or LGBTQ+ individuals as an
``interpersonal dispute,'' the rule fails to recognize that gender-
based violence is a ``social means to subordinate rather than an
individual problem'' and requires comprehensive responses.
Response: The Departments disagree that the rule is contrary to
law. At the outset, the Departments acknowledge that the INA does not
specify whether interpersonal or ``private'' acts can give rise to an
asylum claim. While the actions of private actors are also discussed
elsewhere in this
[[Page 80323]]
rulemaking,\47\ the Departments will now address concerns as they were
raised specifically in the context of establishing a particular social
group. As the commenters contend, acts can give rise to asylum claims
only if they are taken on account of a protected ground, such as
``particular social group.'' And, as discussed above, the term
``particular social group'' is ambiguous. As the Departments have set
forth a reasonable determination that the term would generally not
include, without more, social groups predicated upon private criminal
acts of which governmental authorities were unaware or uninvolved, such
private acts would generally not be sufficient grounds for asylum. See
Matter of A-B-, 27 I&N Dec. at 335 (``groups defined by their
vulnerability to private criminal activity likely lack the
particularity'' required for cognizability).
---------------------------------------------------------------------------
\47\ The Departments note that longstanding law has precluded
private acts of violence as a basis for asylum or similar protection
for many years. See, e.g., Matter of Pierre, 15 I&N Dec. 461, 462-63
(BIA 1975) (strictly personal dispute between a husband and wife
does not state a claim on account of race, religion, political
opinion or membership in a particular social group). Further,
circuit courts have also held that private acts of violence are not
a cognizable basis for asylum, though their decisions are sometimes
rooted in other bases. See, e.g., Prado v. U.S. Att'y Gen., 315 F.
App'x 184, 188 (11th Cir. 2008) (``Ordinary criminal activity and
acts of private violence are generally not `persecution' within the
meaning of 8 U.S.C. 1101(a)(42)(A).''). The Departments'
consideration of private violence under the definition of particular
social group in no way precludes its consideration in connection
with the other requirements necessary for asylum, including nexus
and persecution.
---------------------------------------------------------------------------
The commenter's allegations that the rule violates the APA are
predicated on presumptions that the rule categorically excludes certain
types of social group claims. As stated above, ``the regulation does
not foreclose that, in rare circumstances, such facts could be the
basis for finding a particular social group, given the fact- and
society specific nature of this determination.'' 85 FR at 36279; see
Grace II, 965 F.3d at 906 (``[T]he record in this case does not support
the asylum seekers' argument that [the Departments] have erected a rule
against asylum claims involving allegations of domestic and/or gang
violence.''). The Departments believe that the listed social groups
generally fail to meet the requirements for cognizability, not because,
as the commenter alleged, of the identity of the persecutor, but rather
because such groups are generally defined by the group members'
vulnerability to private criminal activity. See Matter of A-B-, 27 I&N
Dec. at 335.
The Departments note that social groups predicated on domestic or
other gender-based violence, insofar as the group is defined by private
criminal acts of which governmental authorities were unaware or
uninvolved, will generally not be cognizable, as they, like all social
groups defined by such acts, likely lack the requisite particularity
due to the ``broad swaths of society [that] may be susceptible to
victimization'' or social distinction to be cognizable. Matter of A-B-,
27 I&N Dec. at 335-36. Similarly, the Departments disagree with
commenter's assertions that the rule would implicitly raise the
``unwilling or unable'' standard, as the Departments believe that
social groups defined by private criminal acts of which governmental
authorities were unaware or uninvolved are not cognizable under the
particular social group analysis of immutability, particularity, and
social distinction, irrespective of the government's inability or
unwillingness to help, which is an independent factor in considering
asylum eligibility.
With respect to commenters' concerns about this rule's potential
effect on LGBTQ and gender-based-violence related claims, the
Departments note again that they have codified a long-standing test for
determining cognizability of particular social groups and have set
forth a list of common fact patterns involving particular-social-group
claims that generally will not meet those well-established
requirements. The Departments did not first determine a set of groups
that should or should not be cognizable and craft a rule around that
determination.
To the extent that commenters assert that circuit case law
conflicts with the Departments' rule, such conflicts would warrant re-
evaluation in appropriate cases by the circuits under well-established
principles. See Brand X, 545 U.S. at 982.
4.1.7. Past or Present Terrorist Activity or Association
Comment: At least one commenter raised concerns with the ``past or
present terrorist activity or association'' base for not favorably
adjudicating a particular social group. The commenter asserted that the
terms ``terrorist activity'' and ``terrorist association'' were
overbroad and, as a result, would result in unnecessary denials of
asylum claims. Moreover, the commenter stated that the Departments did
not provide ``empirical research'' to support the provision's
inclusion, but rather relied on the ``unproven'' statement that
allowing particular social groups defined by terrorist activity or
association would reward membership in organizations that cause harm to
society and create a perverse incentive to engage in reprehensible or
illicit behavior as a means of avoiding removal.
Response: The Departments disagree that the terms ``terrorist
activity'' or ``terrorist association'' are overbroad. The Departments
are using the ``terrorist activity'' language that Congress clearly
defined in the INA. See INA 212(a)(3)(B)(iii), 8 U.S.C.
1182(a)(3)(B)(iii). To the extent the commenter alleges that the
statutory definition itself is overbroad, such arguments are outside
the scope of this rule. Moreover, the Departments do not believe the
phrase ``terrorist association'' is overly broad. The Departments
intend for this provision to apply to those who voluntarily associate,
or have previously voluntarily associated, with a terrorist
organization. The Departments believe the ordinary meaning of the term
provides sufficient definition for adjudicators to apply. See, e.g.,
``Associate'' Definition, Merriam-Webster, https://www.merriam-webster.com/dictionary/associate (defined as ``join[ing] as a partner,
friend, or companion'' with an example of ``They were closely
associated with each other during the war'').
Although the Departments do not maintain data on the number of
prior asylum grants based on a terrorism-related particular social
group, the Departments believe it is reasonable that, as a general
matter, persons applying for asylum in the United States cannot claim
asylum based on their participation in, or association with, terrorism.
For example, Congress included certain terrorism-related activities as
a categorical bar from asylum eligibility. See INA 208(b)(2)(A)(v), 8
U.S.C. 1158(b)(2)(A)(v).\48\ Similarly, although this is not a
categorical bar to terrorism-based particular social groups, generally
disfavoring such groups is consistent with this Congressional intent.
---------------------------------------------------------------------------
\48\ The Departments note that certain activities or
associations that trigger terrorism-related inadmissibility grounds
may potentially be the subject of discretionary group-based,
situational, or individual exemptions. In such cases, they would not
constitute bars to asylum eligibility.
---------------------------------------------------------------------------
Finally, the Departments note that association with past or current
terrorist activity is at least as ``anti-social'' as association with
criminal gang activity, if not more so, and the latter has been
rejected as a basis for a particular social group by multiple courts.
Cf. Arteaga, 511 F.3d at 945-46 (``We cannot conclude that Congress, in
offering refugee protection for individuals facing potential
persecution through social group status, intended to include violent
street gangs who assault people and who traffic in drugs and commit
[[Page 80324]]
theft.''); Cantarero, 734 F.3d at 85-86 (``The BIA reasonably concluded
that, in light of the manifest humanitarian purpose of the INA,
Congress did not mean to grant asylum to those whose association with a
criminal syndicate has caused them to run into danger. . . . Such
recognition would reward membership in an organization that undoubtedly
wreaks social harm in the streets of our country. It would, moreover,
offer an incentive for aliens to join gangs here as a path to legal
status. . . . Accordingly, the BIA's interpretation merits our
deference under Chevron.''); Elien, 364 F.3d at 397 (``Such recognition
unquestionably would create a perverse incentive for [aliens] coming to
or residing in the United States to commit crimes, thereby immunizing
themselves from deportation. . . . Moreover, the BIA has never extended
the term `social group' to encompass persons who voluntarily engaged in
illicit activities.''). Consequently, the Departments decline to follow
a suggestion that terrorist association should generally be considered
a cognizable particular social group.
4.1.8. Past or Present Persecutory Activity or Association
Comment: One organization claimed that the NPRM's proposed bar on
``past persecutory activity,'' 85 FR at 36279, is contrary to the APA
in the same manner as the proposed bar on past criminal conduct. The
organization alleged that listing a scenario involving past persecutory
activity as generally non-cognizable would create even greater
uncertainty, however, because ``past persecutory activity'' is not
defined in the NPRM.
Response: Although the commenter's broad and unspecified
allegations make a response difficult, the Departments do not believe
this rulemaking is in violation of the APA for reasons given in both
the NPRM and this final rule, and they reiterate that this rulemaking
does not impose any categorical bar as suggested by the commenter. The
Departments have provided descriptions and reasons for all the
provisions and have established a reasonable basis for the rule. With
respect to the commenter's concerns about what conduct falls under the
term ``past persecutory activity,'' the Departments note that this
rulemaking, including the NPRM, sets forth clear guidelines about what
conduct constitutes persecutory activity, 85 FR at 36280-81, and thus,
that this should serve as a guide for conduct involving past
persecutory activity.
4.1.9. Status as an Alien Returning From the United States
Comment: One organization noted that the rule would generally not
find a particular social group to be cognizable if based on ``status as
an alien returning from the United States.'' The organization expressed
concern about this, noting that there have been circumstances where
``Westernized Iraqi citizens have faced persecution and potential
torture based on their perceived ties to the United States.'' The
organization emphasized that each proposed particular social group
should be evaluated on a case-by-case basis instead of being subjected
to general rules that would result in ``blanket denials.''
Another organization claimed that ``status as an alien returning
from the United States'' is on its face an ``immutable, socially
distinct, and particular'' characteristic. The organization emphasized
that past association as a former resident of the United States is
similar to one's membership in a family or one's specific history
because it is a particular characteristic that cannot be changed. The
organization alleged that this portion of the rule could result in the
denial of asylum to individuals persecuted due to their real or imputed
association with the United States by ``a regime that is hostile to
this country, or its culture and values.''
One organization disagreed with the claim that any group based on
individuals returning from the United States will be ``too broad'' to
qualify as a particular social group, 85 FR at 36279, claiming this is
``factually and legally erroneous.'' The organization alleged that, as
a factual matter, the number of individuals returning to some countries
from the United States is small. As a legal matter, the organization
claimed that whether a group is potentially large would not, by itself,
mandate the conclusion that the group is not particular.
Response: The Departments reiterate once again that this rule does
not foreclose the possibility of pursuing and prevailing upon a
particular social group claim defined by the applicant's status as an
alien returning from the United States. ``[T]he regulation does not
foreclose that, in rare circumstances, such facts could be the basis
for finding a particular social group, given the fact- and society
specific nature of this determination.'' 85 FR at 36279; see Grace II,
965 F.3d at 906 (``[T]he record in this case does not support the
asylum seekers' argument that [the Departments] have erected a rule
against asylum claims involving allegations of domestic and/or gang
violence.''). If applicants believe that their proposed group as an
alien returning from the United States meets one of the exceptions to
the general rule based on, as commenter's proposed, the group meeting
the particularity requirement, the applicants may propose such a group.
The Department disagrees with comments that individuals returning
from the United States can, generally, demonstrate that their group is
sufficiently particular or socially distinct. See, e.g., Reyes v.
Lynch, 842 F.3d 1125, 1139 (9th Cir. 2016) (upholding BIA's
determination that a proposed social group of deportees ``was too
amorphous, overbroad and diffuse because it included men, women, and
children of all ages, regardless of the length of time they were in the
United States, the reasons for their removal, or the recency of their
removal''); Lizama, 629 F.3d at 446 (rejecting proposed group of
``young, Americanized, well-off Salvadoran male deportees with criminal
histories who oppose gangs'' as ``clearly fail[ing] to meet the
required criteria'' (internal quotations omitted)). However, to the
extent that commenters believe there may be exceptions to this general
rule, ``the rule does not foreclose that, in rare circumstances, such
facts could be the basis for finding a particular social group, given
the fact- and society specific nature of this determination.'' 85 FR at
36279; see Grace II, 965 F.3d at 905.
4.2. Political Opinion
Comment: Commenters argued that the proposed definition of
political opinion is inconsistent with legislative intent and
international law, which, commenters asserted, require the term to be
construed broadly. Specifically, commenters asserted that Congress, in
passing the Refugee Act of 1980, aimed to align the United States
definition of ``refugee'' with the United States' obligations under the
1967 Protocol relating to the Status of Refugees. Commenters provided
excerpts from the House Report for the Refugee Act of 1980 and UNHCR
guidance stating the term should be construed broadly. Commenters also
argued that Congress is the branch that holds the plenary power and
that the proposed edits to 8 CFR 208.1(d) are an attempt ``to do an end
run around the legislative intent'' of section 101(a)(42) of the Act, 8
U.S.C. 1101(a)(42).
Commenters expressed concern that the proposed definition of
political opinion is inconsistent with Federal court and BIA precedent.
Commenters
[[Page 80325]]
cited Cardoza-Fonseca, 480 U.S. 421, to argue that the proposed
definition of ``political opinion'' is too narrow. One commenter also
cited cases from the United States Courts of Appeals for the Second,
Third, and Ninth Circuits, which the commenter argued evidence that the
term political opinion should be construed broadly. Another commenter
noted that Federal courts have recognized political opinions based on
feminist beliefs, labor organizing, environmental beliefs, support of
student organizations, and gangs. With respect to BIA precedent, one
commenter asserted that the NPRM incorrectly interpreted Matter of S-P-
, 21 I&N Dec. 486 (BIA 1996), and that the case actually instructs that
the term political opinion should be construed broadly. The commenter
similarly asserted that the BIA decisions in Matter of D-V-, 21 I&N
Dec. 77 (BIA 1993), and Matter of N-M-, 21 I&N Dec. 526 (BIA 2011),
support a broad reading of political opinion. One commenter cited the
third edition of the Webster's New World College Dictionary (1997) to
argue that the definition of the word ``political'' is unambiguously
understood to include more than just opposition to a particular regime.
Accordingly, the commenter argued, the proposed definition of political
opinion contradicts the plain meaning of the INA.
Commenters expressed concern that political opinions not directly
related to regime change would be considered invalid under the proposed
definition. As an example, one commenter asserted that Wang Quanzhang
(who the commenter stated is a human rights defender in China) and Ivan
Safronov (a Russian journalist who, the commenter stated, was charged
with treason for contributing to a prominent business newspaper) would
not have valid political opinions under the proposed definition.
Commenters asserted that individuals could hold valid political
opinions unrelated to regime change such as LGBTQ rights advocacy,
voter registration advocacy, and opinions on the publication of data
about COVID-19 in countries that seek to hide the pandemic's impact.
One commenter noted that in some nations the geopolitical landscape
renders a distinction between opposition to a specific regime
indistinguishable from political opinions about cultural issues.
Commenters similarly expressed concern that gang-based claims would
be rejected under the proposed definition. Commenters asserted that
gangs can have substantial political power and that some nations are
unable to control gang violence and influence. One commenter stated
that the United States Department of State recognized this reality in
its 2019 Country Reports on Human Rights Practices. Other commenters
cited provisions of the UNHCR Guidelines on International Protection
noting that gang-based and gender-based claims can be valid.
Commenters also expressed concern with the ``absent expressive
behavior'' language in proposed 8 CFR 208.1(d) and 8 CFR 1208.1(d),
asserting that section 208(b) of the Act, 8 U.S.C. 1158(b), does not
require protected grounds to be expressed in a particular way and that
``political opinion,'' not ``political activity'' is the protected
ground. Commenters asserted that the proposed definition contradicts
UNHCR Guidance on expressing opinions. Commenters argued that ``absent
expressive behavior'' is ``antithetical to the concept of an imputed
political opinion against a non-state organization'' and that it is
inconsistent with Federal case law that has recognized imputed
political opinions against gangs that fall outside of the proposed
definition of expressive behavior.
One commenter expressed concern that the proposed definition of
political opinion ``frustrates the reliance interests'' of
``thousands'' of individuals whose asylum claims are based on political
opinions under the current understanding of the concept. The commenter
expressed concern that individuals with pending applications would
``have a much lower likelihood of obtaining relief under the proposed
rule.''
Response: In regards to commenters' concerns that the final rule
contravenes various Federal circuit court decisions, the Departments
note that the disparity in interpretations of the term political
opinion is a partial motive for the amendment. As discussed in the
NPRM, this rule will provide clarity in an area of conflicting case law
that has made uniform application challenging for adjudicators.
One commenter suggested that the Departments were ``seek[ing] to
erase all precedent that is favorable to asylum seekers.'' The
Departments deny this purported motive. As mentioned in the NPRM, the
purpose behind the amendments surrounding political opinion is to
provide clarity to adjudicators, avoid further strain on the INA's
definition of ``refugee,'' and to acknowledge that the statutory
requirements and general understanding of political opinion is intended
to advance or further a discrete cause related to political control of
a state.
A commenter expressed concern that the Departments failed to
recognize that many asylum seekers flee their homelands because their
governments are unable or unwilling to control non-state actors,
including international criminal organizations. The Departments do not
disagree that this may be the motivation for some aliens to flee their
homelands. However, that fact alone does not create a basis for
protection under the immigration laws. Asylum and statutory withholding
of removal are narrowly tailored--allowing for the discretionary grant
of protection from removal in the case of asylum and granting
protection from removal in the case of withholding--to aliens who
demonstrate that they meet specific eligibility criteria. The asylum
laws were not created to address any misfortune that may befall an
alien. Rather, asylum generally is available to individuals who are
able to establish, among other things, that the harm they experienced
or fear was (or there is a well-founded basis to believe would be)
inflicted on account of a protected ground. The rule will improve the
system by creating a clearer definition of political opinion, which, in
turn, will assist in the expeditious processing of meritorious claims.
Several commenters listed various opinions which, commenters'
opined, would no longer fit within the political opinion category. The
Departments acknowledge that the rule codifies a specific definition
for articulating political opinion claims, though it also incorporates
existing case law principles.\49\ As explained in the NPRM, the
Departments seek to provide clear standards for adjudicators to
determine political opinion claims. For example, if political opinion
were expanded to include opposition to international criminal
organizations, it would ``interfere with the other branches' primacy in
foreign relations,'' and ``strain the language of'' INA 101(a)(42)(A),
8 U.S.C. 1101(a)(42)(A). See Saladarriaga v. Gonzales, 402 F.3d 461,
467 (4th Cir. 2005) (holding that an individual's cooperation with the
DEA, even if it stemmed from disapproval of a drug cartel, did not
constitute a political opinion). Although the Departments agree that
international
[[Page 80326]]
criminal organizations threaten both their fellow countrymen and the
international community, the appropriate redress for such concerns is
not to broadly grant asylum on the basis of political opinion.
---------------------------------------------------------------------------
\49\ As discussed herein, the rule itself applies prospectively
to applications filed on or after its effective date; accordingly,
it will have no effect on pending applications, contrary to
commenters' concerns. However, the rule also codifies many
principles that are already applicable through binding case law.
Thus, although the rule itself may not apply to pending
applications, applicable case law that is reflected in the rule may
nevertheless still apply to pending applications.
---------------------------------------------------------------------------
A commenter stated, without more, that the rule does not meet the
materiality standard as outlined in the UNHCR guidance. The Departments
decline to respond to commenters' general assertions that the rule
violates U.S. international treaty obligations.
The Departments do not share a commenter's concern that the NPRM
defines ``political opinion'' narrowly to the extent that it runs afoul
of congressional intent to define ``refugee'' broadly. The NPRM notes
that since the enactment of the statute, the definition of ``refugee''
has been strained in various contexts. See Saladarriaga, 402 F.3d at
467. Thus, one aspect of the motive behind the NPRM is to reduce the
strain on the statute and return the statute to its original meaning.
Additionally, the commenter claimed that the expansive definition
was meant to mirror the 1967 Protocol relating to the Status of
Refugees, the 1951 Convention relating to the Status of Refugees, and
UNHCR guidelines, which the commenter claims are now violated by the
new definition. The Departments reject this conclusion. While UNHCR
guidelines are informative, they are not prescriptive and thus not
binding. See Aguirre-Aguirre, 526 U.S. at 427 (``The U.N. Handbook may
be a useful interpretative aid, but it is not binding on the Attorney
General, the BIA, or United States courts.''); Cardoza-Fonseca, 480
U.S. at 439, n.22 (``Indeed, the Handbook itself disclaims such
force[.]'').
In regards to the meaning of ``political,'' the Departments note
that, according to the Merriam-Webster Dictionary, ``political'' does
have numerous definitions. See ``Political'' Definition, Merriam-
Webster, https://www.merriam-webster.com/dictionary/political. However,
all but one of those definitions relates specifically, and often
solely, to governments. Moreover, the first definition refers only to
the government. Similarly, the Departments reject commenters'
assertions that ``expressive behavior'' is solely ``political action''
and therefore distinct from political opinion. First, the Departments
note that the definition of political opinion has been highly debated.
See, e.g., Catherine Dauvergne, Toward a New Framework for
Understanding Political Opinion, 37 Mich. J. Int'l L. 243, 246-47
(2016) (``The tension between [differing interpretations of political
opinion] raises the overarching question of whether political opinion
should be defined at all. It is evident that existing definitions have
not provided sufficient guidance, and that there is no definition in
the adjacent area of human rights law that can be logically imported .
. . . [A] broadly agreed-upon definition of political opinion would
advance the jurisprudence by providing a consistent standard.''). The
NPRM aims to clarify this definition for adjudicators. The Departments'
use of ``expressive behavior'' is directly related to the NPRM's
definition of political opinion as ``intended to advance or further a
discrete cause related to political control of a state.'' 85 FR at
36280. Moreover, the Departments are unaware of any claim rooted in
political opinion that did not contain some type of expressive
behavior, and it is not clear how an opinion never uttered or conveyed
could be recognized as a political opinion.
Another commenter expressed concern that a particular state's
geopolitical landscape that would leave political opinions
indistinguishable from cultural issues. First, BIA case law clearly
holds that political opinion involves a cause against a state or
political entity rather than against a culture. Matter of S-P-, 21 I&N
Dec. at 494. However, the Departments also acknowledge that there may
be rare circumstances that will amount to exceptions to the general
guiding principles laid out in the NPRM. For this reason, the rule uses
``in general'' to guide adjudicators in their determinations.
4.3. Persecution
Comment: Commenters expressed a wide range of concerns with the
rule's definitional standard for ``persecution.'' See 85 FR at 36280-
81; 8 CFR 208.1(e), 1208.1(e). Overall, commenters asserted that the
Departments' justification was generally flawed and inappropriately
relied on case law to support its position.
Commenters asserted that the proposed definition of persecution is
inconsistent with the statutory meaning of the word. For example,
commenters argued that the new definition impermissibly alters the
definition of refugee so that it does not conform with the United
Nations Convention and Protocol Relating to the Status of Refugees.
Commenters said this violates the ``fixed-meaning canon'' of
construction, which ``holds that words must be given the meaning they
had when the text was adopted.'' Commenters considered the meaning of
``refugee,'' which incorporates persecution, in the Refugee Act and
argued that legislators intended for persecution to have a broad
meaning in order to align the INA with U.S. international obligations.
Commenters expressed concern that the proposed definition of
persecution would exclude claims based on threats with no accompanying
effort to carry out the threat or non-exigent threats. Commenters cited
and discussed numerous Federal cases, including, Cardoza-Fonseca, 480
U.S. 421, and argued that Federal case precedent suggests that threats
alone can be the basis of asylum claims. One commenter provided the
example of death threats and noted that the United States Court of
Appeals for the Sixth Circuit reasoned that an applicant need not wait
for an actual attempt on his or her life before having a valid claim
for asylum. Juan Antonio, 959 F.3d at 794. Another commenter similarly
argued that a teenage girl who rebuffed inappropriate advances from a
corrupt official would not be able to prevail on a persecution claim
unless the official assaulted her. Commenters asserted that through the
focus on severe and exigent threats, the proposed definition and the
accompanying non-exhaustive list of factors would unlawfully lead to
denials of asylum claims where applicants suffer significant harms that
fall short of an immediate threat to life or property. At least one
commenter asserted that this requirement of action would
inappropriately eliminate claims based on a well-founded fear of future
persecution.
Commenters expressed concern that the proposed definition of
persecution wrongfully fails to account for the possibility of
cumulative harms rising to the level of persecution and argued that
Federal case law instructs that adjudicators must consider cumulative
harm. See, e.g., Herrera-Reyes v. Att'y Gen. of U.S., 952 F.3d 101, 109
(3d Cir. 2020); Tairou v. Whitaker, 909 F.3d 702, 707 (4th Cir. 2018);
Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998). Commenters expressed
concern that the rule would prevent applicants who have suffered
multiple distinct harms from prevailing on an asylum claim if each
instance is deemed to be not severe or to be minor. To illustrate these
concerns, one commenter discussed persecution suffered by the Rohingya
and another detailed the case of one of his clients whose application,
the commenter argued, would be granted under the current regulations
and case law but denied under the persecution definition established by
the rule.
One commenter argued that because factors suggesting a lack of
persecution
[[Page 80327]]
are overrepresented, adjudicators would not be engaging in case-by-case
analysis and that the scales are inappropriately tipped towards finding
a lack of persecution.
Commenters expressed concern that the proposed definition
inappropriately fails to consider how children and adults experience
harm differently. Specifically, commenters argued that children may
experience harm because of affiliation with family members and
caregivers and that harm suffered by children may rise to the level of
persecution even though the same harm would not rise to such a level
for adults. Other commenters noted that it is not reasonable to expect
children to seek protection from official sources.
Commenters expressed concern that the proposed rule would require
asylum seekers to demonstrate that persecutory laws would likely be
enforced against them. As an example, commenters noted that asylum
seekers coming from countries where same sex relationships carry the
death penalty would not be able to secure asylum unless they could also
establish that the law would likely be applied to them. In many cases,
one commenter argued, such a penalty is not enforced frequently because
sexual minorities are not likely to break the law given the risk of
death. The commenter noted that the United States Court of Appeals for
the Ninth Circuit has suggested that applicants with these types of
claims should prevail. See Karouni v. Gonzales, 399 F.3d 1163, 1173
(9th Cir. 2005). Commenters also noted that even if laws such as the
above are not enforced, they are still persecutory in nature because of
the fear and vulnerability that they create in those that could be
subjected to the laws.
Response: As stated in the proposed rule, the Departments added new
paragraphs in 8 CFR 208.1 and 1208.1 ``to define persecution and better
clarify what does and does not constitute persecution.'' 85 FR at
36280. These changes clarify that persecution is an extreme concept
that requires severe harm and specify different examples of conduct
that, consistent with case law, do not rise to the level of
persecution. See 85 FR at 36280-81. They are not unduly restrictive,
and it is well-established that not every harm that befalls an alien,
even if it is unfair, offensive, unjust, or even unlawful, constitutes
persecution. See Gjetani v. Barr, 968 F.3d 393, 397 (5th Cir. 2020)
(``Persecution is often described in the negative: It is not
harassment, intimidation, threats, or even assault. Persecution is a
specific term that does not encompass all treatment that our society
regards as unfair, unjust, or even unlawful or unconstitutional.''
(quotation omitted)); see also Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d
Cir. 2003) (discrimination against stateless Palestinians in Saudi
Arabia did not amount to persecution).
Commenters are correct that the definition of ``refugee'' in the
Act, first codified by the Refugee Act, incorporates ``persecution''
and that Congress enacted the Refugee Act in order to conform the Act
with the United States' obligations under the 1967 Protocol relating to
the Status of Refugees. See Matter of Acosta, 19 I&N Dec. at 219.
However, commenters are incorrect that Congress intended for the
Refugee Act to import any specific international or extrinsic
definition of ``persecution.'' Instead, as explained by the BIA,
Congress used the term persecution prior to the Refugee Act, and,
accordingly, it is presumed that Congress intended for that pre-Refugee
Act construction to continue to apply. Id. at 222.\50\ That prior
construction of the term included the notions that ``harm or suffering
had to be inflicted upon an individual in order to punish him for
possessing a belief or characteristic a persecutor sought to overcome .
. . and either by the government of a country or by persons or an
organization that the government was unable or unwilling to control.''
Id. The standards for persecution contained in the proposed rule and
this final rule align with this understanding of ``persecution,'' and
the rule is not incompatible with the Act or the United States'
international treaty obligations.
---------------------------------------------------------------------------
\50\ Moreover, as also noted by the BIA, the Protocol itself
leaves the determination of who should be considered a refugee,
which inherently includes a determination of who is at risk of
persecution, to each state party itself. Matter of Acosta, 19 I&N
Dec. at 220.
---------------------------------------------------------------------------
Some of the standards implemented by this rule involve matters that
the Federal courts have adjudicated inconsistently. For example, the
rule establishes that repeated threats would not constitute persecution
absent ``actual effort to carry out the threats.'' 8 CFR 208.1(e),
1208.1(e). Courts have held that threats, even with accompanying
action, do not necessarily rise to the level of persecution. See, e.g.,
Gjetani, 968 F.3d at 398 (collecting cases and explaining that ``[E]ven
those subject to brutal physical attack are not necessarily victims of
`persecution.' Courts have condemned all manner of egregious and even
violent behavior while concluding they do not amount to
persecution.''); see also Quijano-Rodriguez v. Gonzales, 139 F. App'x
910, 910-11 (9th Cir. 2005) (collecting cases).
The Departments note that Federal courts have also held that
threats without attempts to carry out the threat may at times
constitute persecution. See, e.g., Duran-Rodriguez v. Barr, 918 F.3d
1025, 1028 (9th Cir. 2019) (explaining that ``death threats alone can
constitute persecution'' but ``they constitute `persecution in only a
small category of cases, and only when the threats are so menacing as
to cause significant actual suffering or harm' '' (citation omitted)).
Threats ``combined with confrontation or other mistreatment'' are
likely to be persecution; however, ``cases with threats alone,
particularly anonymous or vague ones, rarely constitute persecution.''
Id. (internal citation omitted) (emphasis added); see also Lim v. INS,
224 F.3d 929, 936 (9th Cir. 2000) (``In certain extreme cases, we have
held that repeated and especially menacing death threats can constitute
a primary part of a past persecution claim, particularly where those
threats are combined with confrontation or other mistreatment. . . .
Threats standing alone, however, constitute past persecution in only a
small category of cases, and only when the threats are so menacing as
to cause significant actual `suffering or harm.''). Even the case cited
by commenters, Juan Antonio, 959 F.3d at 794, noted that threats alone
amount to persecution only when they are ``of a most immediate and
menacing nature''; moreover, the respondent in that case experienced
beatings and rape in addition to threats, rendering that case
inapposite to the rule, id. at 793.
The Departments believe that the rule reflects appropriate and
reasonable lines drawn from the relevant case law regarding
persecution, particularly due to the difficulty associated with
assessing the credibility of an alleged threat, especially in
situations in which the threat was made anonymously and without
witnesses or the existence of other corroborating evidence. See Lim,
224 F.3d at 936 (``Furthermore, claims of threats are hard to disprove.
A finding of past persecution raises a regulatory presumption of future
persecution and flips the burden of proof . . . to show that conditions
have changed to such a degree that the inference is invalid . . . .
Flipping the burden of proof every time an asylum applicant claimed
that he had been threatened would unduly handcuff the [government].'').
To the extent that the standards implemented by this rule conflict with
case law interpreting what sorts of conduct rise to the level of
persecution, the Departments invoke
[[Page 80328]]
their authority to interpret the ambiguities of what constitutes
persecution--an undefined term in the Act--outside the bounds of such
prior judicial constructions. See Brand X, 545 U.S. at 982; see also
Grace II, 965 F.3d at 889 (noting that the term ``persecution'' is
``undefined in the INA''); cf. Fernandez v. Keisler, 502 F.3d 337, 347-
48 (4th Cir. 2007) (applying Brand X to affirm the BIA's rejection of
the Fourth Circuit's prior interpretation of section 101(a)(22) of the
Act, 8 U.S.C. 1101(a)(22), where the court's prior interpretation did
not rest on a determination that the statute was ``unambiguous'').
Moreover, in response to the commenters' concerns, the final rule more
clearly specifies the types of threats included within the definition
such that menacing and immediate ones may still come within the
definition consistent with the case law noted above.
To the extent that aspects of persecution adjudications are not
covered by the rule, the Departments expect adjudicators to conduct all
determinations consistent with the law, regulations, and precedent.
Accordingly, the rule does not conflict with case law explaining that
harms must be considered cumulatively and in the aggregate, see, e.g.,
Matter of Z-Z-O-, 26 I&N Dec. 586, 589 (BIA 2015) (holding that
applicant's experiences did not amount to persecution ``when considered
either individually or cumulatively''); Matter of O-Z- & I-Z-, 22 I&N
Dec. at 25-26 (considering incidents of harm ``[i]n the aggregate''),
because it does not in any way direct adjudicators to blindly only
consider harm suffered individually. In other words, adjudicators will
still consider harms suffered by applicants in the aggregate.
Similarly, the rule does not end case-by-case adjudications of
whether conduct constitutes persecution. The Departments disagree with
commenters that the Departments' choice to frame persecution in the
context of conduct that does not rise to the level of persecution while
leaving open further adjudication of what conduct constitutes
persecution in any way ``tips the scales.'' ``Persecution is often
described in the negative . . . .'' Gjetani, 968 F.3d at 397.
As noted by commenters, Federal courts have held that an
applicant's age is relevant for determining whether the applicant
suffered persecution. See, e.g., Liu v. Ashcroft, 380 F.3d 307, 314
(7th Cir. 2004) (``[A]ge can be a critical factor in the adjudication
of asylum claims and may bear heavily on the question of whether an
applicant was persecuted or whether she holds a well-founded fear of
future persecution.''). Commenters are incorrect, however, that the
rule's persecution standard conflicts with this instruction. Instead,
the rule provides a general standard for persecution that is built
around the severity of the harm. 8 CFR 208.1(e), 1208.1(e). This focus
on severity does not foreclose arguments or an adjudicator's finding
that harms suffered by an applicant are severe in their particular
context given the applicant's age or particular circumstances, even if
such harms may not generally be considered severe for the average
applicant.
Regarding commenters' concerns with the rule's instruction that
``[t]he existence of laws or government policies that are unenforced or
infrequently enforced do not, by themselves, constitute persecution,
unless there is credible evidence that those laws or policies have been
or would be applied to an applicant personally,'' the Departments note
this standard is consistent with well-established law that ``an asylum
applicant can establish a well-founded fear of persecution by proving
either a pattern or practice of persecution of a social group, of which
the applicant has proven she is a member, or by proving the applicant
will be singled out personally.'' Ayele v. Holder, 564 F.3d 862, 870
(7th Cir. 2009). Laws that are unenforced or enforced infrequently
cannot demonstrate a pattern or practice of persecution, 8 CFR
208.13(b)(2)(iii), 1208.13(b)(2)(iii), and without credible evidence
that such laws would be applied to the applicant, the alien cannot
demonstrate that he or she would be singled out individually for
persecution, id. The rule does not alter these well-established
precepts. Further, this requirement that the mere existence of a law,
without more, is insufficient to rise to the level of persecution is in
keeping with prior interpretations of persecution. For example, the BIA
has explained that evidence of the enactment of a new law is not
evidence of changed country conditions for the purposes of a motion to
reopen ``without convincing evidence that the prior version of the law
was different, or was differently enforced, in some relevant and
material way.'' Matter of S-Y-G-, 24 I&N Dec. 247, 257 (BIA 2007).
This definition does not foreclose an applicant from citing to the
existence of such laws as a part of his or her evidence to demonstrate
past persecution or risk of future persecution. Nor does this
requirement require an applicant to live in secret in order to avoid
future harm. Further, the Departments expect that in many cases there
may be credible evidence of the enforcement of such laws. For example,
in the Ninth Circuit case cited by commenters, the government conceded
at oral argument that the Lebanese government arrested individuals for
homosexual acts and enforced the law at issue. Karouni, 399 F.3d at
1172.
Finally, the rule's persecution standard does not in any way
foreclose claims based solely on a well-founded fear of future
persecution. Instead, the adjudicator will consider whether the future
harm feared by the applicant would constitute persecution under the
rule's standards. In other words, the adjudicator would consider
whether the feared harm would be carried out by an individual with the
intent to target the applicant's belief or characteristic, would be
severe, and would be inflicted by the government or by persons or
organizations that the government is unable or unwilling to
control.\51\
---------------------------------------------------------------------------
\51\ Specifically regarding commenters' concerns that the rule's
standard that threats without accompanying action do not constitute
persecution would undermine claims based on fear of future
persecution, the Departments believe that the commenters are
conflating past harms and determinations of past persecution with
fear of future harm and determinations of a well-founded fear of
future persecution. Indeed, it is difficult to understand how anyone
could predict whether future threats will occur and difficult to
conceive of a claim in which an alien alleges a fear of future
threats but not a fear of future physical, mental, or economic harm.
The real issue is the likelihood of future harm based on past
threats, and the rule does not alter an alien's ability to argue
that past threats are evidence of either past persecution or a
likelihood of future persecution.
---------------------------------------------------------------------------
4.4. Nexus
Comment: Numerous commenters expressed general disagreement
regarding the rule's nexus provisions, including referring to the list
as an ``anti-asylum wish list.'' Commenters claimed that it directed
adjudicators to deny most claims.
Some commenters alleged that the Departments were attempting to
accelerate asylum hearings at the expense of due process; the
commenters construed the rule as creating a checklist that bypasses
careful consideration that due process requires. Others opined that the
rule prioritized efficiency and expediency over fairness, due process,
and ``basic humanity.'' Commenters stated the rule allowed ``blanket
denials.''
Another commenter opined that the rule was arbitrary because the
Departments failed to consider the real-world implications of the
proposal. Commenters expressed concern that, after the enactment of the
rule, many asylum seekers would not have favorable adjudication of
their claims,
[[Page 80329]]
including those based on violence from non-state actors. Others claimed
the rule's nexus components were ``completely incapable of supporting a
meritorious asylum claim.''
Commenters expressed concern that the rule precludes a mixed-motive
analysis, reasoning that if an actor had any one, potential motive
listed in the rule, it would be fatal to the claim, and that it
violates the ``one central reason'' standard. INA 208(b)(1)(B)(i), 8
U.S.C. 1158(b)(1)(B)(i).
Some of the commenters' disagreement surrounded Matter of A-B-, 27
I&N Dec. 316. One commenter opined that the rule is contrary to Matter
of A-B-'s requirement of case-by-case rigorous analysis, and another
commenter worried that the NPRM codified Matter of A-B-, despite, as
the commenter characterized, its unfavorable treatment in various
Federal courts.
Other commenters argued that the nexus provisions conflated
``categories of people'' with requirements of the perpetrator's mental
state.
Another commenter expressed concern that the rule included
``substantive changes to the law disguised in procedural attire.''
Response: As an initial point, to the extent commenters' points
misstate the rule, address issues not raised by the rule, are rooted in
erroneous reasoning, are contrary to facts or law, or reflect
unsubstantiated and exaggerated melodramatic views of the rule, the
Departments decline to adopt those points. The Departments do not wish
to enact some ``anti-asylum wish list'' in this rule. In codifying the
circumstances that are generally insufficient to support a nexus
finding, the Departments are simply specifying common circumstances,
consistent with case law, in order to provide clarity and efficiency
for adjudicators. The Departments proposed these amendments in order to
assist aliens with meritorious claims, as well as the entire
immigration system. As with all regulations or policy changes, the
Departments considered the effect this rule will have; accordingly, the
Departments reject commenters' allegations that such implications were
not considered.
The rule's inclusion of these general guidelines for nexus
determinations will not result in due process violations from
adjudicators failing to engage in an individualized analysis. The rule
provides a nonexhaustive list of eight circumstances that generally
will not warrant favorable adjudication, but the rule does not prohibit
a favorable adjudication depending on the specific facts and
circumstances of the applicant's particular claim. See 8 CFR 208.1(f),
1208.1(f) (``For purposes of adjudicating an application for asylum
under section 208 of the Act or an application for withholding of
removal under section 241(b)(3) of the Act, the Secretary, in general,
will not favorably adjudicate the claims of aliens who claim
persecution based on the following list of nonexhaustive
circumstances''); see also Grace II, 965 F.3d at 906 (holding that the
inclusion of qualifying terms like ``in general'' and ``generally''
demonstrated that the government had not enacted a rule that all gang-
based asylum claims would fail to demonstrate eligibility for asylum).
In other words, the rule implicitly allows for those rare circumstances
in which the specified circumstances could in fact be the basis for
finding nexus given the fact-intensive nature of nexus determinations.
See 85 FR at 36279. The amended regulations do not remove that fact-
intensive nature from the nexus inquiry; rather, the amended
regulations provide clarity in order to reduce the amount of time that
adjudicators must spend evaluating claims. While the Departments did
consider expediency and fairness, the Departments disagree that
expediency is prioritized over and above due process.
The Departments disagree with commenters' concerns that the nexus
provisions eliminate the mixed motive analysis or violate the ``one
central reason'' standard. As discussed above in Section II.C.4.3 of
this preamble, to the extent that aspects of persecution adjudications
are not covered by the rule, the Departments expect adjudicators to
conduct all determinations consistent with the law, regulations, and
precedent. Here, the rule provides guidance on harms that would not be
considered on account of one of the five protected grounds; the rule
did not state, nor was it meant to be construed, that it precluded
mixed motive analysis if the situation involved one of the five
protected grounds in addition to one of the listed circumstances that
would generally not be harm on account of a protected ground. Further,
the preamble to the NPRM acknowledges mixed motive claims by quoting
the REAL ID Act of 2005, which defined the nexus element as requiring
that one of the five protected grounds to be ``at least one central
reason for persecuting the applicant.'' 85 FR at 36281.
As to the concerns surrounding Matter of A-B-, the Departments
reiterate the above discussion that adjudicators should continue to
engage in individualized, fact-based adjudications as the rule provides
only a list of circumstances that do not constitute harm on account of
a protected ground in most, but not all, cases. Accordingly, the rule
is consistent with the Attorney General's admonishment, in Matter of A-
B-, of the BIA for failing to engage in an individualized analysis and
instead accepting the Government's concessions as true. 27 I&N Dec. at
339. Regarding commenters' further concerns that the rule should not
codify Matter of A-B- given its varied treatment by the Federal courts,
the Departments note that the United States Court of Appeals for the
District of Columbia Circuit recently affirmed that Matter of A-B-
holds that decision makers must make individual determinations on a
case-by-case basis. Grace II, 965 F.3d at 905. The Departments also
note that every circuit court addressing Matter of A-B- on its merits
so far, as opposed to the unusual procedural challenge at issue in
Grace II, has found it to be a valid exercise of the Attorney General's
authority. See, e.g., Gonzales-Veliz v. Barr, 938 F.3d at 234 (``In
sum, because A-B- did not change any policy relating to asylum and
withholding of removal claims, we reject Gonzales-Veliz argument that
A-B- constituted an arbitrary and capricious change in policy.'');
Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir. 2020)
(``Accordingly, we decline to hold that the Attorney General's decision
in Matter of A-B- was arbitrary or capricious.'').
The Departments disagree with the commenters' allegation that the
Departments conflated nexus with other asylum requirements by not
solely focusing on the perpetrator's state of mind. The NPRM provides a
list of situations that would not ordinarily be on account of a
protected ground. 85 FR at 36281. The listed situations are attenuated
from protected grounds to the extent that they do not meet the
necessary nexus requirement. While some of the listed situations,
particularly those related to the rationale for the harm, are closely
related to other elements of asylum, including particular social group,
a nexus analysis has often required an examination of the persecutor's
views. See Sharma v. Holder, 729 F.3d 407, 412-13 (5th Cir. 2013);
Caal-Tiul v. Holder, 582 F.3d 92, 95 (1st Cir. 2009). Thus, the
inclusion of the situations related to rationale for the harm are
consistent with case law.
Finally, the Departments reiterate that the NPRM does not re-write
asylum law as some commenters suggested. As noted in the NPRM and
herein, the provisions of the rule related to the substance of asylum
claims flows from
[[Page 80330]]
well-established statutory authority and relevant case law; thus, it
does not ``re-write'' substantive asylum law. The NPRM falls squarely
within the Departments' authority, which is discussed more fully in
Section 6.5 of this preamble.
4.4.1. Interpersonal Animus or Retribution
Comment: Commenters expressed particular concerns regarding the
specification that claims based on ``interpersonal animus or
retribution'' generally will not be favorably adjudicated. 8 CFR
208.1(f)(1), 1208.1(f)(1). One commenter opined that it was arbitrary
and irrational for the Departments to rely on Zoarab v. Mukasey, 524
F.3d 777, 781 (6th Cir. 2008), in support of this change because that
case's facts were ``unusual.''
Commenters expressed confusion as to whether interpersonal modified
both animus and retribution. If it did not modify retribution,
commenters expressed concern that retribution, which they defined as
punishment, encompasses all asylum claims.
Other commenters remarked that all harm between people is
interpersonal.
Commenters also expressed concern that the inclusion of this
situation would result in the erasure of mixed motive analysis as some
``may engage in persecution for pretextual reasons to hide their
bias.''
Response: The inclusion of claims based on ``interpersonal animus
and retribution'' as examples of claims that will generally not result
in a favorable adjudication because the harm is not on account of a
protected ground is consistent with longstanding precedent. The
Departments cited to just one case, Zoarab, 524 F.3d at 781, to
illustrate this point in the NPRM, but there are numerous other
examples. See, e.g., Martinez-Galarza v. Holder, 782 F.3d 990, 993 (8th
Cir. 2015) (finding that harm ``motivated by purely personal
retribution'' is not a valid basis for an asylum claim); Madrigal v.
Holder, 716 F.3d 499, 506 (9th Cir. 2013) (explaining that
``mistreatment motivated purely by personal retribution will not give
rise to a valid asylum claim''); Amilcar-Orellana v. Mukasey, 551 F.3d
86, 91 (1st Cir. 2008) (holding that ``[f]ear of retribution over
personal matters is not a basis for asylum under the Immigration and
Nationality Act''); Jun Ying Wang v. Gonzales, 445 F.3d 993, 998 (7th
Cir. 2006) (acknowledging that the Seventh Circuit has ``repeatedly
held that a personal dispute cannot give rise to a claim for asylum'');
Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir. 2001) (quoting
Grava v. INS, 205 F.3d 1177, 1181 n.3 (9th Cir. 2000), and reiterating
that ``[p]urely personal retribution is, of course, not'' a protected
ground, specifically, imputed political opinion); Blanco de Belbruno v.
Ashcroft, 362 F.3d 272, 284 (4th Cir. 2004) (finding that ``[f]ears of
`retribution over purely personal matters . . .' do[es] not constitute
[a] cognizable bas[is] for granting asylum'') (quoting Huaman-Cornelio
v. BIA, 979 F.2d 995, 1000 (4th Cir. 1992)). The Departments disagree
that Zoarab is not an accurate example of this basic proposition
despite commenters' characterizations of the case's particular facts.
Furthermore, after the NPRM was promulgated, the Attorney General made
the point more explicitly that interpersonal animus or retribution will
generally not support a nexus finding required under the INA. See
Matter of A-C-A-A-, 28 I&N Dec. 84, 92 (A.G. 2020) (``An alien's
membership in a particular social group cannot be incidental,
tangential, or subordinate to the persecutor's motivation for why the
persecutor sought to inflict harm. . . . Accordingly, persecution that
results from personal animus or retribution generally does not
establish the necessary nexus.'' (cleaned up)). ``The reasoning for
this is straightforward: When private actors inflict violence based on
a personal relationship with a victim, then the victim's membership in
a larger group may well not be `one central reason' for the abuse.''
Id. (internal quotation marks omitted).
To the extent commenters argue that any harm between two people is
``interpersonal,'' commenters misinterpret both the cases supporting
this provision and the rule itself. Instead, the point here is that a
personal dispute between two people--for example a property dispute
that causes some sort of altercation or a personal altercation because
of one person's involvement with a criminal investigation and
prosecution--is not generally a valid basis for an asylum claim because
it is not harm on account of a protected ground. Further, as set out in
the rule, the qualifier ``interpersonal'' applies to both animus and
retribution. Accordingly, commenters are incorrect that this provision
states that any claim based on ``retribution'' would generally be
insufficient and that all or most claims would fail as a result.
Finally, the Departments reiterate the discussion above in Section
II.C.4.4 of this preamble that the inclusion of these examples does not
foreclose a mixed motive analysis. Accordingly, to the extent an
applicant's fear is based on harm partially motivated by an
interpersonal dispute and partially motivated by another potentially
protected ground, the adjudicator will consider those particular facts
and circumstances to determine the applicant's eligibility for asylum
or statutory withholding of removal.
4.4.2. Interpersonal Animus in Which the Alleged Persecutor Has Not
Targeted, or Manifested an Animus Against, Other Members of an Alleged
Particular Social Group in Addition to the Member Who Has Raised the
Claim at Issue
Comment: Commenters also raised concerns regarding this change in
the NPRM described in this heading. One commenter argued that it was a
``clear attempt to bar women from obtaining asylum based on domestic
violence,'' a claim that the commenter noted was an ``uncontroversial
basis for asylum in many of our courtrooms until the Attorney General
issued Matter of A-B-.'' One commenter asserted that this amendment
gives the persecutor a ``free pass'' to persecute someone because that
person will be unable to establish that another person suffered under
this persecutor. Further, the commenter argued that asking an alien to
investigate, while attempting to flee for safety, whether the
persecutor had persecuted others was impossible, absurd, and arbitrary.
Another commenter claimed that it violated the INA to require an alien
to demonstrate that the persecutor ``manifested animus against
others.'' One commenter claimed that the amendment was irrational
because it held aliens seeking asylum through membership in a
particular social group to a different and higher evidentiary standard
than aliens seeking asylum through the other four protected grounds.
The commenter asserted that this reading was supported by the BIA's use
of ejusdem generis in Matter of Acosta, 19 I&N Dec. 211, and the
Attorney General's favorable citation of the rule in Matter of L-E-A-,
27 I&N Dec. 581. Another commenter insisted that ``interpersonal'' was
a meaningless modifier.
Response: The Departments, based on prior case law, decided that
demonstration of animus against other members of the particular social
group is generally necessary to establish nexus. 85 FR at 36281; see
also Matter of A-C-A-A-, 28 I&N Dec. 84, 92 (A.G. 2020) (``Furthermore,
if the persecutor has neither targeted nor manifested any animus toward
any member of the particular social group other than the applicant,
then the applicant may not satisfy the nexus requirement.''). The focus
of the nexus requirement is membership in the group, INA
[[Page 80331]]
101(a)(42), 8 U.S.C. 1101(a)(42), and by definition, a ``group''
encompasses more than one individual. Thus, an alleged persecutor who
has no interest in harming other individuals ostensibly in that group
is generally not seeking to persecute one individual on account of his
or her membership in that alleged particular social group. Without such
animus against other group members, the motivation would appear to be
personal, rather than on account of membership in the group, and a
personal dispute, as discussed above, is generally insufficient on its
own to qualify the applicant for the relief of asylum. See Madrigal,
716 F.3d at 506.
Asylum law is not meant to provide redress for every victim of
crime no matter how sympathetic those victims may be. Accordingly, in
order to demonstrate that an alien was persecuted ``on account of'' a
particular social group based on interpersonal animus, the alien will
ordinarily need to demonstrate that the persecutor has targeted or
manifested an animus against someone else in that particular social
group. Because an alien will necessarily articulate a particular social
group that is socially distinct in order for the group to be cognizable
in the first instance, it is reasonable to expect the alien to be able
to articulate whether the alleged persecutor has sought to harm other
members of that group. The rule does not require aliens to investigate
or ask their alleged persecutors anything; rather, the aliens should
already have evidence about the persecutor's motives in order to
advance a valid asylum claim in the first instance, especially in cases
where the alleged persecutor is the government.
Despite the inclusion of this ground as a statement of one type of
claim that is generally incapable of supporting an application for
relief, the Departments reject commenters' interpretation of this
provision as a bar. Rather, as the Departments have detailed above, the
rule itself allows for circumstances where a listed situation, based on
the specific facts, will support a nexus finding. For example, as noted
by commenters, an applicant who is a persecutor's initial victim may
argue that despite the persecutor's lack of action against other group
members, the applicant's dispute with the persecutor is in fact on
account of the protected ground and not on account of a non-protected
personal concern.\52\ Accordingly, commenters' suggestion that each
persecutor will have a ``free pass'' is also incorrect.\53\
---------------------------------------------------------------------------
\52\ The Departments also note that the commenters' example of
an ``initial victim'' necessarily presumes both that there are other
victims and that the alien knows or will know of them. Consequently,
that example would fall outside of the rule's purview in any event.
\53\ Further, persecutors are not brought to justice under U.S.
asylum law nor should it be viewed that way. The Departments are not
giving persecutors ``one free pass'' because they are often not
dealing with the persecutors themselves.
---------------------------------------------------------------------------
Additionally, the Departments disagree that this provision
evidences discriminatory intent against a particular class of asylum
applicants. The rule is designed to provide expedited adjudication of
meritorious claims as well as increased clarity and uniformity--a
problem that commenters highlighted by noting that ``many,'' but not
all, courts held a particular standard regarding applications premised
on domestic violence.
The Departments do not believe that this requirement violates the
INA, and without a more specific comment, they are unable to respond.
This provision is not irrational and does not hold aliens relying
on membership in a particular social group to a higher evidentiary
standard. Although particular social group is a more amorphous category
than race, religion, nationality, or political opinion--and, thus, more
in need of definitional clarity--each protected ground requires
demonstration of the same base elements: Persecution or a well-founded
fear of persecution on account of a protected ground.
Further, ``interpersonal'' is not a meaningless modifier. The
Departments use the term ``interpersonal'' to differentiate instances
of animus and dispute between two private parties from instances of
animus and dispute between a private individual and a government
official.
4.4.3. Generalized Disapproval of, Disagreement With, or Opposition to
Criminal, Terrorist, Gang, Guerilla, or Other Non-State Organizations
Absent Expressive Behavior in Furtherance of a Discrete Cause Against
Such Organizations Related To Control of a State or Expressive Behavior
That is Antithetical to the State or a Legal Unit of the State
Comment: Commenters expressed concerns regarding the required
analysis, the underlying intent, and the necessary elements of the
inclusion of ``generalized disapproval of, disagreement with, or
opposition to criminal, terrorist, gang, guerilla, or other non-state
organizations absent expressive behavior in furtherance of a discrete
cause against such organizations related to control of a state or
expressive behavior that is antithetical to the state or a legal unit
of the state'' in the list of circumstances that will generally not
support a nexus finding. Specifically, some commenters argued that this
provision undermines a rigorous fact-based analysis as it
``categorically state[s] that certain opinions can never be
political.'' The commenters urged that this type of labeling is
incorrect and improper. Additionally, commenters asserted that the
provision ``evidences a clear discriminatory intention to utterly
annihilate the entire genres of asylum cases where opposition to gangs
constitutes a political opinion.'' Another commenter claimed that the
rule was ``clearly designed'' to eliminate asylum for those fleeing the
``Northern Triangle'' (El Salvador, Guatemala, and Honduras) of Central
America. One commenter asserted that because the international criminal
organizations function as quasi-governments, there is often no reason
for an alien to engage in expressive behavior that is antithetical to
the state because ``the state has no real authority.''
Response: First, commenters are incorrect that this provision
prohibits certain opinions from being considered ``political.''
Instead, as discussed above, adjudicators should continue to engage in
fact-based analysis of the particular facts and circumstances of an
individual applicant's claim, and the rule expressly allows for rare
circumstances in which the facts of a listed situation could be the
basis for finding nexus. This provision does not remove that fact-
intensive nature from the nexus inquiry.
Additionally, the Departments disagree that this provision
evidences a discriminatory intent. Again, the rule is designed to allow
a more expeditious adjudication of meritorious asylum claims so that
applicants do not have to wait a lengthy amount of time before
receiving relief. The Departments' inclusion in this section of the
rule of a certain category of claims that is frequently raised but is
generally insufficient to establish nexus is not the product of a
desire to harm or inhibit a particular people, nationality, or group.
As to a commenter's suggestion that aliens may be unlikely to
engage in expressive behavior that is antithetical to the state because
the state has no real authority due to international criminal
organizations functioning as quasi-governments, the Departments
interpret this comment to refer to organizations such as drug cartels
whom the commenter believes function as de facto governments in some
countries. Although the Departments question the factual accuracy of
the commenter's point and otherwise believe the comment is either
hypothetical or
[[Page 80332]]
speculative, especially due to the fact-intensive, case-by-case nature
of asylum application adjudications, they nevertheless note that the
rule does not preclude claims based on opposition to non-state
organizations related to efforts by the state to control such
organizations. 8 CFR 208.1(d), 1208.1(d). And if an applicant
establishes that the organization is the de facto government or
otherwise functions in concert with the government, then the rule does
not preclude a claim based on the applicant's opposition to that
organization or the government. In other words, whether the country has
``real authority'' or not, nothing in the rule precludes a claim based
on opposition to non-state organizations in the circumstances outlined
in the rule, though the Departments note that, in general, aliens who
do not engage in expressive behavior regarding such organizations or
the government are unlikely to establish a nexus based on political
opinion for purposes of an asylum application.
4.4.4. Resistance to Recruitment or Coercion by Guerilla, Criminal,
Gang, Terrorist, or Other Non-State Organizations
Comment: Commenters asserted that the inclusion of ``resistance to
recruitment or coercion by guerilla, criminal, gang, terrorist, or
other non-state organizations'' as a particular circumstance that
generally does not support a nexus finding does not take in to account
the significant power yielded by transnational criminal organizations,
which often function as de facto governments.
Response: The Departments appreciate commenters' concerns about the
expansive power of transnational criminal organizations. The
Departments agree with commenters that such organizations may pose
significant dangers. If an alien asserts that the government is unable
or unwilling to control the transnational criminal organization, the
alien may present evidence to establish that. As the Departments have
previously mentioned, the NPRM explicitly acknowledges the fact-
intensive nature of the nexus inquiry and further acknowledges that
rare circumstances defined by the listed situations may warrant a
favorable nexus determination.
4.4.5. The Targeting of the Applicant for Criminal Activity for
Financial Gain Based on Wealth or Affluence or Perceptions of Wealth or
Affluence
Comment: Regarding ``the targeting of the applicant for criminal
activity for financial gain based on wealth or affluence or perceptions
of wealth or affluence,'' one commenter expressed concern about the
Departments' citation to Aldana-Ramos v. Holder, 757 F.3d 9, 18 (1st
Cir. 2014), as support. The commenter stated that the case's primary
holding was ``even if a persecutor seeks to harm an asylum seeker for
financial gain, the BIA must engage in a mixed motive analysis to
determine whether the protected characteristic was also a central
reason for the persecution.'' The commenter alleged that the
Departments were relying on Aldana-Ramos to ``implement a blanket rule
against asylum seekers who may be targeted, in part, based on wealth or
perceived wealth, with no regulatory requirement that adjudicators
engage in mixed motive analysis, as is required under the Real ID Act
as codified in the INA.''
Response: As discussed above, the nexus provisions do not eliminate
the mixed-motive analysis. The NPRM explicitly detailed that it was
providing guidance on what generally would not be considered one of the
five protected grounds; the NPRM did not state, nor was it meant to be
construed, that it precluded mixed-motive analysis if the situation
involved one of the five protected grounds in addition to a situation
on the list that was not adjudicated to be a protected ground. Thus,
the NPRM is consistent with mixed-motive analysis precedent, and an
applicant may provide argument, like the respondent in Aldana-Ramos,
that his or her alleged persecutor is motivated by a protected ground
in addition to the non-protected ground stated in the exception.
4.4.6. Criminal Activity
Comment: Commenters expressed concern about the rule's inclusion of
``criminal activity'' as the basis of claims that will generally not
support a favorable adjudication due to the breadth of the provision
and the underlying precedent. Numerous commenters opined that
``virtually all harm'' that satisfies the persecution requirement could
be characterized as ``criminal activity'' because ``in virtually every
country, beatings, rape, and threatened murder'' are criminalized.
Another commenter realized that this broad definition may not be what
the Departments intended, but without providing boundaries on the term,
the Departments invited ``mass denials of claims by those who have bona
fide asylum claims.'' A commenter expressed concern that the category
would include aliens who were forced or coerced into committing crimes.
Additionally, a commenter expressed reservations about the Departments'
reliance on Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010),
explaining that the ``alien was detained and unrepresented before the
immigration court and the BIA'' and ``it was not until he had filed a
pro se petition for review that he obtained counsel, and most of his
appeal centered on procedural defects in the proceedings below.''
Response: The inclusion of ``criminal activity'' is not overly
expansive. Rather, as demonstrated by the explanatory case citation
provided by the Departments, this provision is meant to capture cases
that are premised on generalized criminal activity. See Zetino, 622
F.3d at 1016 (discussing the ``desire to be free from harassment by
criminals motivated by theft or random violence by gang members'').
The Departments find that these generalized claims are distinct
from the commenters' concerns that persecutory acts in general may be
``criminal.'' To the extent commenters are nevertheless concerned that
this provision would prohibit a broader swath of claims, the
Departments again reiterate that these categories of cases are not
categorical bans. Instead, the rule explicitly noted that there may be
exceptions, and an applicant may present argument to the adjudicator as
to why their individual case meets the nexus requirement. For example,
aliens who were forced and coerced into crime may be an exception based
upon the specific facts of the situation.
Further, the citation to Zetino remains an accurate example of the
Departments' proposition despite commenters' concerns, which involved
procedural issues unrelated to the relevant points in the case.
4.4.7. Perceived, Past or Present, Gang Affiliation
Comment: Regarding the inclusion of ``perceived, past or present,
gang affiliation'' as the basis of claims that will generally not
support a favorable adjudication, commenters objected to a perceived
double standard and the implications for aliens, especially children.
Several commenters argued that this provision was arbitrary and
capricious because it would make individuals who were incorrectly
imputed to be gang members ineligible for asylum while allowing
incorrect
[[Page 80333]]
imputation of other characteristics, for example, homosexuality, to be
grounds for asylum. Another commenter noted that this change would
twice victimize aliens because imputed gang membership occurs at no
fault of their own. One commenter also expressed concern that children
who are forced into prostitution or drug smuggling would lose their
right to asylum.
Response: The Departments acknowledge commenters' concerns and have
sympathy for aliens who incorrectly have gang membership imputed onto
them by no fault of their own. These concerns, however, do not result
in a viable asylum claim. ``[T]he asylum statute does not provide
redress for every misfortune.'' Matter of A-B-, 27 I&N Dec. at 318.
Regarding commenters' concerns that the rule provides an
inconsistent approach to immutability, commenters compare dissimilar
claims. While gang affiliation and homosexuality are traits that may
both be imputed, accurately or not, to an applicant, the underlying
ground of the latter may be a protected ground while the former is not.
Thus, the Departments' approach toward immutability is consistently
based on the protected nature of the underlying ground.
Commenters are incorrect that this provision would cause children,
such as those forced into prostitution or drug smuggling by criminal
gangs, to lose their eligibility for asylum.\54\ Indeed, as noted in
the preamble, claims premised on these sorts of gang affiliations had
already been found in case law to not support a finding of asylum
eligibility prior to the proposed rule's publication. See, e.g., Reyes,
842 F.3d at 1137-38 (holding that ``former members of the Mara 18 gang
in El Salvador who have renounced their membership'' was not a
cognizable particular social group); Matter of A-B-, 27 I&N Dec. at 320
(``Generally, claims by aliens pertaining to . . . gang violence
perpetrated by non-governmental actors will not qualify for asylum.'').
Because these gang-based claims are not related to a protected ground,
it reasonably follows that they would further not succeed on nexus
because the harms would not be on account of a protected ground.
Nevertheless, the Departments again reiterate that, as discussed above,
the rule explicitly provides for rare exceptions; children who were
forced into prostitution or drug smuggling may present argument that
their case sufficiently meets the nexus requirements based upon the
specific facts in their application.
---------------------------------------------------------------------------
\54\ The Departments note that aliens who are victims of
criminal activities, including human trafficking, may be eligible
for other immigration benefits beyond asylum based on that
victimization. INA 101(a)(15)(T),(U), 8 U.S.C. 1101(a)(15)(T),(U).
---------------------------------------------------------------------------
4.4.8. Gender
Comment: Some commenters expressed strong objections to the NPRM's
inclusion of gender in the list of circumstances that would not
ordinarily result in a favorable adjudication, including allegations
that the provision is arbitrary and capricious as well as ``cruel and
contrary to the purposes underlying Congress' desire to provide
protection to refugees.'' Some commenters also argued that the
amendments took a new and capricious position and would result in
substantial and irreparable harm to aliens. One commenter opined that
this provision was really about a desire to reduce the amount of aliens
who could seek asylum.
Commenters asserted that gender has been one of the bedrock bases
for asylum claims and that, as a result, the rule overturns decades of
contrary legal precedent. In support, commenters cited to multiple
cases ``in which immigration judges, the BIA, and the courts of appeals
have held that gender-based persecution provides a valid ground for
asylum.'' \55\ One commenter claimed that the proposed rule ``runs
counter to every case to have considered it.'' According to commenters,
this includes the precedent cited in support of the rule, Niang v.
Gonzales, 422 F.3d 1187 (10th Cir. 2005), which they assert in fact
holds that gender can provide an adequate basis for establishing
membership in a particular social group. Id. at 1199-1200. Some
commenters asserted that the Departments should have included a larger
quotation in the NPRM preamble, including:
---------------------------------------------------------------------------
\55\ For example, one commenter cited to the following cases: De
Pena-Paniagua v. Barr, 957 F.3d 88, 93-94 (1st Cir. 2020); Cece, 733
F.3d 671-72; Sarhan v. Holder, 658 F.3d 649, 654-57 (7th Cir. 2011);
Perdomo, 611 F.3d at 662; Agbor v. Gonzales, 487 F.3d 499, 503 (7th
Cir. 2007); Hassan v. Gonzales, 484 F.3d 513, 517-18 (8th Cir.
2007); Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir. 2006); Gao v.
Gonzales, 440 F.3d 62, 70 (2d Cir. 2004), vac'd on other grounds sub
nom. Keisler v. Gao, 552 U.S. 801 (2007); Niang, 422 F.3d at 1999-
1200; Mohammed v. Gonzales, 400 F.3d 785, 795-98 (9th Cir. 2005);
Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir. 2004); Abay v.
Ashcroft, 368 F.3d 634, 639-42 (6th Cir. 2004); Yadegar-Sargis v.
INS, 297 F.3d 596, 603-04 (7th Cir. 2002); Fatin, 12 F.3d at 1241;
In re Kasinga, 21 I&N Dec. 357, 375 (BIA 1996); cf., e.g., Kadri v.
Mukasey, 543 F.3d 16, 21 (1st Cir. 2008) (``Sexual orientation can
serve as the foundation for a claim of persecution, as it is the
basis for inclusion in a particular social group.''); Karouni v.
Gonzales, 399 F.3d at 1171-72 (reaching the same conclusion).
the focus with respect to such claims should be not on whether
either gender constitutes a social group (which both certainly do)
but on whether the members of that group are sufficiently likely to
be persecuted that one could say that they are persecuted ``on
account of'' their membership. 8 U.S.C. 1101(a)(42)(A). It may well
be that only certain women--say, those who protest inequities--
suffer harm severe enough to be considered persecution. The issue
---------------------------------------------------------------------------
then becomes whether the protesting women constitute a social group.
Niang, 422 F.3d at 1199. One commenter expressed a belief that the
Departments' choice of language to cite in Niang was designed to
deceive the public and to reduce the notice and comment burden.
Commenters asserted that the inclusion of gender conflicts with the
international obligations and international norms of the United States.
For example, a commenter noted that the UNHCR, which oversees the
Refugee Convention, has confirmed that people fleeing persecution based
on gender, gender-identity, and sexual orientation do qualify for
asylum under the Convention's definition of a refugee. In regards to
numerosity, the commenter pointed to UNHCR guidance which explained,
``[t]he size of the group has sometimes been used as a basis for
refusing to recognize `women' generally as a particular social group.
This argument has no basis in fact or reason, as the other grounds are
not bound by this question of size.'' Commenters stated that because
the inclusion of gender would exclude meritorious claims for relief,
the rule against gender-based asylum claims would violate the
government's duty of non-refoulement as codified in statutory
withholding of removal at section 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A).
Commenters stated that the rule against gender-based asylum would aid
and abet violations of the law of nations in contravention of the Alien
Tort Claims Act (``ATCA'') because there is a specific and universal
obligation to prevent domestic violence and other violence against
women in international law.
One commenter argued that it is improper to disfavor gender-based
claims in the nexus section. In support of that position, the commenter
asserted that to support a general bar on gender-based claims within
the nexus analysis, the agencies would need to show that gender is not
generally a central reason for persecution throughout the world, and
further, the proposed regulation changes do nothing to establish any
empirical claims about causation.
Commenters also expressed concern that the amendment would prevent
adjudicators from evaluating claims on a case-by-case basis.
[[Page 80334]]
Another commenter noted that levels of gender-based violence have
risen during the coronavirus pandemic and stated that, as a result, it
is not appropriate for the Departments to take action to restrict
asylum claims based on gender.
A commenter requested that the Departments not eliminate one of the
few protections for gender-based violence.
Another commenter noted the Department of State's work to reduce
and eliminate gender-based violence, including emphasizing in the
refugee protection context that the ``empowerment and protection of
women and girls has been a central part of U.S. foreign policy and
national security'' and that ``gender-based violence[ ] is a critical
issue'' that is ``intricately linked to'' the Department's strategic
goals.
Finally, a commenter made numerous unsupported claims, including
that the inclusion of gender violates the constitutional guarantee of
equal protection; that the inclusion of gender in the laundry list is
contrary to the evidence; and that the NPRM's failure to include a
rationale for listing gender as failing the nexus requirement is,
without more, sufficient to render that inclusion arbitrary.
Response: Regarding commenters' concerns that gender and ``private
criminal acts'' would no longer be recognized as a viable claim, the
Departments again note that the rule, after listing the eight
situations that will generally not result in favorable adjudication,
also notes that in rare circumstances, given the fact-specific nature
of such determinations, such facts could be the basis for finding
nexus. Although the nexus requirement for an asylum claim requires
scrutiny when an asserted particular social group encompasses
``millions'' of individuals, Matter of A-C-A-A-, 28 I&N Dec. 92, the
rule does not categorically bar all gender-based asylum claims contrary
to the assertions of commenters. In other words, the rule does not
completely prohibit applications with a nexus related to issues of
gender from being granted, and the inclusion of gender in the list of
circumstances that generally does not constitute harm on account of a
protected ground does not conflict with the requirement that
adjudicators consider each application on a case-by-case basis.
Further, a purpose for the amendments was to allow for increased
clarity and more uniform adjudication than the prior scheme which was
shaped through case law. Thus, the Departments do not believe that the
inclusion of gender in the listed situations generally resulting in
unfavorable adjudication is cruel, novel, capricious, or contrary to
congressional intent.
The Departments acknowledge commenters' discussion of a wide range
of case law involving issues surrounding gender and applications for
asylum or for statutory withholding of removal. To the extent that the
Departments' inclusion of ``gender'' as an example of a nexus basis
that generally will not support a favorable adjudication conflicts with
the provided case law, the Departments reiterate the discussion in
Section II.C.4.3 of this preamble regarding Brand X. The Departments
invoke their authority to interpret the ambiguities in the Act,
including what constitutes harm on account of a protected ground,
outside the bounds of any prior judicial constructions. See Brand X,
545 U.S. at 982 (explaining that agencies are not bound by prior
judicial interpretations of ambiguous statutory interpretations because
there is a presumption that Congress left statutory ambiguity for the
agencies to resolve).
Regarding commenters' specific objections to the Departments' use
of Niang, the Departments agree that the section following the quote in
the NPRM stated that the issue surrounding gender is the nexus
determination. This does not undermine, but enhances, the inclusion of
gender in the listed circumstances that, without more, will not
generally result in favorable adjudication based on nexus. Niang goes
on to place more limits on a specific gender-based particular social
group: ``It may well be that only certain women--say, those who protest
inequities--suffer harm severe enough to be considered persecution. The
issue then becomes whether the protesting women constitute a social
group.'' Niang, 422 F.3d at 1200. This tracks with the rule: Harm on
account of gender alone will generally result in unfavorable
adjudication.
Another commenter pointed to the UNHCR's approach toward gender and
numerosity. While the Departments appreciate the comment, they note
that they are not bound by the UNHCR, and commenters' reliance on
guidance from UNHCR is misplaced. UNHCR's interpretations of or
recommendations regarding the Refugee Convention and Protocol, such as
set forth in the UNHCR Handbook, are ``not binding on the Attorney
General, the BIA, or United States courts.'' INS v. Aguirre-Aguirre,
526 U.S. at 427. ``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. Further, to the extent such guidance ``may be a useful
interpretative aid,'' id. at 427, it would apply only to statutory
withholding of removal, which is the protection that implements Article
33 of the Convention, cf. R-S-C- v. Sessions, 869 F.3d 1176, 1188, n.11
(10th Cir. 2017) (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''). In the
withholding of removal context, the Departments disagree with
commenters that the rule will violate the United States' non-
refoulement obligations because such claims are not, without more,
meritorious.
In addition, the Departments note that commenters asserted that
violating a so-called ``specific and universal obligation to prevent
domestic violence and other violence against women'' was a viable claim
under the ATCA. The Departments further note, however, that the
``aiding and abetting'' violations of the law of nations is not
currently recognized as within the scope of the ATCA. Doe v. Nestle,
S.A., 929 F.3d 623 (9th Cir. 2019), cert. granted sub nom. Nestle USA,
Inc. v. Doe I, No. 19-416, 2020 WL 3578678 (July 2, 2020), and cert.
granted sub nom. Cargill, Inc. v. Doe I, No. 19-453, 2020 WL 3578679
(July 2, 2020). Moreover, the commenters failed to demonstrate that
such a claim would ``rest on a norm of international character accepted
by the civilized world and defined with a specificity comparable to the
features of the 18th-century paradigms,'' such as violation of safe
conducts, infringement of the rights of ambassadors, or piracy, that
the Court has recognized. Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25
(2004).
Much of the commenters' concern regarding the inclusion of gender
arises from a misunderstanding of the complexity of particular social
groups and the role of mixed-motive analysis. The Departments explain
that the inclusion of gender indicates that, generally, a claim based
on gender, without additional evidence, will not be favorably
adjudicated in regards to the nexus claim. However, it does not read,
nor should it be interpreted to mean, that the inclusion of gender in
the claim is fatal. Rather, a claim based on gender alone will
generally be insufficient. As to the role of mixed motive analysis, the
text of the NPRM acknowledges mixed motive claims by quoting the REAL
ID
[[Page 80335]]
Act of 2005 that defined the nexus element as requiring that one of the
five protected grounds be ``at least one central reason for persecuting
the applicant.'' 85 FR at 36281. Further, the NPRM explicitly detailed
that it was providing guidance on what would not be considered one of
the five protected grounds; the NPRM did not state, nor was it meant to
be construed, that it precluded mixed motive analysis if the situation
involved one of the five protected grounds in addition to a situation
on the list that was not adjudicated to be a protected ground.\56\
---------------------------------------------------------------------------
\56\ The Departments note that gender was not included among
other broad categories, such as race or nationality, as a basis for
refugee status in either the 1951 Refugee Convention or the 1980
Refugee Act. Further, no precedential decision has unequivocally
recognized gender, standing alone, as a basis for asylum. See, e.g.,
Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc)
(``Persecution on account of sex is not included as a category
allowing relief under section 101(a)(42)(A) of the Act.''). The
Departments further note that gender has frequently been analyzed by
circuit courts in the context of the definition of a particular
social group, rather than under the rubric of nexus, though the
courts themselves are in disagreement over the issue. See Matter of
A-C-A-A-, 28 I&N at 91 (``Although I do not decide the matter in
this case, I note that there has been disagreement among the courts
of appeals about whether gender-based groups may constitute a
particular social group within the meaning of the INA.''). At least
three circuits have concluded that gender is too broad or sweeping
to constitute a particular social group itself. See Gomez v. INS,
947 F.2d 660, 664 (2d Cir. 1991) (``Like the traits which
distinguish the other four enumerated categories-race, religion,
nationality and political opinion-the attributes of a particular
social group must be recognizable and discrete. Possession of
broadly-based characteristics such as youth and gender will not by
itself endow individuals with membership in a particular group.''),
Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) (``We believe this
category is overbroad, because no factfinder could reasonably
conclude that all Iranian women had a well-founded fear of
persecution based solely on their gender.''); Da Silva v. U.S. Att'y
Gen., 459 F. App'x 838, 841 (11th Cir. 2012) (``The BIA determined
that `women' was too broad to constitute a particular social group.
We agree that such a group is too numerous and broadly defined to be
considered a `social group' under the INA.''). Another circuit has
quoted the language in Gomez approvingly. Lukwago v. Ashcroft, 329
F.3d 157, 172 (3d Cir. 2003). Still another has rejected
``generalized sweeping classifications for asylum,'' while noting
that the Board ``has never held that an entire gender can constitute
a social group under the INA.'' Rreshpja v. Gonzales, 420 F.3d 551,
555 (6th Cir. 2005). One circuit has intimated that gender alone
could suffice to constitute a particular social group, though it
remanded the case to the Board to address that issue in the first
instance. Perdomo, 611 F.3d at 667; but see Rreshpja, 420 F.3d at
555 (``We do not necessarily agree with the Ninth Circuit's
determination that virtually all of the women in Somalia are
entitled to asylum in the United States.''). Further, although
gender is generally regarded as an immutable characteristic, see
e.g., Kauzonaite v. Holder, 351 F. App'x 529, 531 (2d Cir. 2009)
(``However, although gender is an immutable characteristic. . .
gender alone is insufficient to identify a particular social
group.''), modern notions of gender fluidity may raise questions
about that assumption in individual cases. Cf, e.g., Bostock v.
Clayton, 140 S.Ct. 1731, 1779 & n.45 (2020) (``while the Court does
not define what it means by a transgender person, the term may apply
to individuals who are `gender fluid,' that is, individuals whose
gender identity is mixed or changes over time.'' (Alito, J.
dissenting)). Further, because every alien has a gender of some
classification, gender may not carry sufficient particularity to
warrant classification as a particular social group. Cf. Matter of
L-E-A-, 27 I&N Dec. at 593 (``Further, as almost every alien is a
member of a family of some kind, categorically recognizing families
as particular social groups would render virtually every alien a
member of a particular social group. There is no evidence that
Congress intended the term `particular social group' to cast so wide
a net.''). In short, although the rule considers gender under the
category of nexus, it may also be appropriately considered under the
definition of ``particular social group'' as well, as the lists
under both definitions are nonexhaustive.
---------------------------------------------------------------------------
The Departments disagree with commenters that the rule must show
that gender is not the cause of harm around the world in order to
include gender in the list of circumstances that generally does not
constitute harm on account of a protected ground. Indeed, these
comments miss the purpose of this discussion in the rule. The
Departments do not make any statement about the question or prevalence
of gender-based harm in other countries, but instead the point is that
such harm is not on account of a protected ground and accordingly
generally fails to support a valid claim to asylum or to statutory
withholding of removal. As noted elsewhere, asylum is not designed to
provide relief from all manners of harm that may befall a person. See,
e.g., Gjetani, 968 F.3d at 397-98.
The Departments further disagree with commenters' statements that
the inclusion of gender violates the constitutional guarantee of equal
protection. The rule does not provide any benefits or discriminate on
the basis of one gender over another.
Other commenters noted the severe problem of gender-based violence,
especially in the global coronavirus pandemic, and the extensive work
the Department of State is undertaking to reduce and eliminate gender-
based violence. The Departments agree with commenters regarding the
severity of the problem and the good work being done across the Federal
government to address the problem. As previously mentioned, however,
the narrow asylum statutes are not drafted to provide redress for every
problem. The Departments must act within the legal framework set out by
Congress.
4.5. Evidence Based on Stereotypes
Comment: Commenters expressed numerous reservations and
disagreements with the Departments' regulation regarding the
admissibility of evidence based on or promoting stereotypes to support
the basis of an applicant's fear of harm. 8 CFR 208.1(g), 1208.1(g).
Some commenters alleged that the NPRM created a vague new
evidentiary bar. Other commenters opined that the provision excludes
necessary and critical evidence; some alleged that the NPRM was ``part
of [the Departments'] efforts to make it harder for asylum seekers to
present their cases,'' including claims based on particular social
groups. Commenters also worried that the changes would unfairly
advantage the government and violate due process. Other commenters
expressed concern that the amendments would place a larger burden on
adjudicators as they would be presented with difficult and time-
consuming factual and legal issues. Regarding well-founded fear, a
commenter alleged that the distinction between widespread, systemic
laws or policies--evidence used to support a well-founded fear of
persecution--and cultural stereotypes is so narrow that it will result
in a ``quagmire of confusion'' and ``countless hours and resources of
litigation.''
Other commenters claimed that cultural stereotypes were necessary
for well-founded fear of persecution claims and were utilized in
country condition reports. For example, a commenter argued that the
Department of State's country reports contain cultural stereotypes. As
evidence of this claim, the commenter included three quotes from the
Human Rights Report for Guatemala: ``[a] culture of indifference to
detainee rights put the welfare of detainees at risk''; ``[t]raditional
and cultural practices, in addition to discrimination and institutional
bias, however, limited the political participation of women and members
of indigenous groups''; and ``[i]ndigenous communities were
underrepresented in national politics and remained largely outside the
political, economic, social, and cultural mainstream.'' Further, the
commenter asserted that this was evidence that ``it would be impossible
to discuss conditions in any country without discussing its culture and
without engaging in at least some stereotyping.'' The commenter
extrapolated this onto several other elements of an asylum claim,
including a subjectively genuine and objectively reasonable fear of
harm and a socially distinct, particular social group.
A commenter opined that this provision was evidence that the
Departments ``fail[ed] to engage in reasoned decision making''; the
commenter continued by claiming that the NPRM ``raises doubts about
whether the agency appreciates the scope of its discretion or exercised
that discretion in
[[Page 80336]]
a reasonable manner.'' Dep't of Homeland Sec. v. Regents of the Univ.
of Cal., 140 S. Ct. 1891, 1905 (2020) (quoting Michigan v. EPA, 576
U.S. 743, 750 (2015) (internal quotation marks omitted)).\57\ Finally,
commenters asserted that the provision's purported application only to
aliens and not to DHS represented an unfair asymmetry because there was
no prohibition of DHS filing evidence promoting stereotypes in
opposition to asylum applications.
---------------------------------------------------------------------------
\57\ The Departments respond to allegations of failure to engage
in reasoned decision making below in section II.C.6.2.
---------------------------------------------------------------------------
Response: The Departments reject the characterization of the rule
regarding admissibility of evidence based on stereotypes as a new
evidentiary bar. Numerous courts, and the BIA, have made clear that the
Federal rules of evidence do not apply in immigration proceedings, but
the evidence must be probative and its admission may not be
fundamentally unfair. See, e.g., Rosendo-Ramirez v. INS, 32 F.3d 1085,
1088 (7th Cir. 1994); Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir.
1983); Tashnizi v. INS, 585 F.2d 781, 782-83 (5th Cir. 1978); Trias-
Hernandez v. INS, 528 F.2d 366, 369 (9th Cir. 1975); Marlowe v. INS,
457 F.2d 1314, 1315 (9th Cir. 1972); Matter of Toro, 17 I&N Dec. 340,
343 (BIA 1980); Matter of Lam, 14 I&N Dec. 168, 170 (BIA 1972). As the
rule makes clear, ``conclusory assertions of countrywide negative
cultural stereotypes'' are not probative of any of the eligibility
grounds for asylum. Matter of A-B-, 27 I&N Dec. at 336 n.9.
For example, in Matter of A-B-, the Attorney General determined
that the evidence submitted in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA
2014), ``an unsourced partial quotation from a news article eight years
earlier,'' was not appropriate evidence to support the ``broad charge''
that Guatemala had a `` `culture of machismo and family violence.' ''
Matter of A-B-, 27 I&N Dec. at 336 n.9 (quoting Matter of A-R-C-G-, 26
I&N Dec. at 394). Similarly, the rule establishes that such unsupported
stereotypes are not admissible as probative evidence. 85 FR at 36282
(``pernicious cultural stereotypes have no place in the adjudication of
applications for asylum and statutory withholding of removal,
regardless of the basis of the claim''); see also Matter of A-C-A-A-,
28 I&N Dec. at 91 n.4 (``Furthermore, the Board should remember on
remand that `conclusory assertions of countrywide negative cultural
stereotypes . . . neither contribute to an analysis of the
particularity requirement nor constitute appropriate evidence to
support such asylum determinations.' '' (quoting Matter of A-B-, 27 I&N
Dec. at 336 n.9)).
Reliance on stereotypes about a country, race, religion,
nationality, or gender is inconsistent with the individualized
consideration asylum claims require. Further, by definition,
stereotypes are not subject to verification and have little intrinsic
probative value; to the contrary, they frequently undermine credibility
considerations that are important to an asylum claim. Cf. Thomas v.
Eastman Kodak Co., 183 F.3d 38, 61 (1st Cir. 1999) (``The concept of
`stereotyping' includes not only simple beliefs such as `women are not
aggressive' but also a host of more subtle cognitive phenomena which
can skew perceptions and judgments.''). Instead, they reflect ``a frame
of mind resulting from irrational or uncritical analysis.'' Nguyen v.
INS, 533 U.S. 53, 68 (2001). Thus, even ``benevolent'' stereotypes are
generally disfavored in law. Cf. International Union, United Auto.,
Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, 499
U.S. 187, 199-200 (1991) (stating, in rejecting employer policy related
to female fertility due to potential exposure to fetal hazards, that
the ``beneficence of an employer's purpose does not undermine the
conclusion that an explicit gender-based policy is sex
discrimination''). In short, stereotypes about another individual or
country have little place in American law as evidence supporting any
type of claim. See United States v. Bahena-Cardenas, 411 F.3d 1067,
1078 (9th Cir. 2005) (``Refusing to allow expert testimony that would
encourage or require jurors to rely on cultural stereotypes is not an
abuse of discretion.'').
To be sure, asylum claims are generally rooted in hearsay,
frequently cannot be confronted or rebutted, and are typically
uncorroborated except by other hearsay evidence. See, e.g., Angov, 788
F.3d at 901 (`` `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 the [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 pet'n for reh'g 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.''). Thus, adjudicators are certainly seasoned in assessing
evidence that is not subject to verification and has minimal probative
value in the context of asylum claims.
Nevertheless, the Departments believe that the harms associated
with the use of evidence rooted in stereotypes far outweigh what
little, if any, probative value such evidence may have in an asylum
claim. Accordingly, the rule does not represent a wholly new
evidentiary bar per se, but rather a codification of the point that
such stereotypes will not meet the existing admissibility standards
because they are inherently not probative. Contrary to commenters'
suggestions, such evidence should not be necessary to an asylum
application. Even if such stereotypes were admitted into evidence, they
would be given little to no weight for the reasons stated above.
Further, to the extent that an applicant's claim is supported only by
the applicant's personal stereotypes about a country or the alleged
persecutor, that claim is likely unmeritorious in the first instance.
Further, the Departments disagree with commenter assertions that
the term ``cultural stereotypes'' is vague. As alluded to above, the
concept of stereotyping is well-established in American jurisprudence,
and legal questions regarding stereotypes, especially stereotypes about
foreign countries, arise in a variety of settings. See, e.g., United
States v. Ramirez, 383 F.Supp.2d 1179, 1180 (D. Neb. 2005) (collecting
cases excluding testimony based on cultural stereotypes of different
foreign countries); United States v. Velasquez, No. CR 08-0730 WHA,
2011 WL 5573243, at *3 (N.D. Cal. 2011) (not permitting a ``cultural
defense'' expert witness to testify ``as his opinions are based on
cultural stereotypes and generalizations that have no probative value
in this case'' and permitting a ``mental condition expert'' to testify
on the condition that he ``refrain from offering testimony based on
stereotypes and/or generalizations of Guatemalan, Mayan, Mam or any
other culture''); see also
[[Page 80337]]
Bahena-Cardenas, 411 F.3d at 1078 (``Refusing to allow expert testimony
that would encourage or require jurors to rely on cultural stereotypes
is not an abuse of discretion.''). Moreover, existing Department
policies forbid the use of generalized stereotypes in law enforcement
activities. See U.S. Dep't of Justice, Guidance for Federal Law
Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender,
National Origin, Religion, Sexual Orientation, or Gender Identity 4
(2014) (``Reliance upon generalized stereotypes involving the listed
characteristics is absolutely forbidden.''), https://www.justice.gov/sites/default/files/ag/pages/attachments/2014/12/08/use-of-race-policy.pdf. Thus, the Departments do not believe that adjudicators will
have difficulty understanding the rule's reference to ``cultural
stereotypes.''
The Departments also disagree with commenter assertions that it
will be difficult to distinguish between widespread, systemic laws or
policies--a form of accepted evidence to establish a well-founded
fear--and cultural stereotypes. The Departments are seeking to bar
admissibility of non-probative evidence of the kind described in Matter
of A-B-, broad cultural stereotypes that have no place in an impartial
adjudication. Evidence of systemic laws or policies is more probative
and concrete than unsupported assertions of reductive cultural
stereotypes. For example, bald statements that a country, as a whole,
has a particular cultural trait that causes certain members of that
country to engage in persecution is evidence that has no place in an
adjudication. In contrast, evidence that a country's leader has
instituted a program to carry out systematic persecution against
certain groups would be highly probative evidence. General assertions
of cultural stereotypes are inherently conclusory, reductive, and
unhelpful to the adjudicator or trier of fact--in addition to being
harmful in and of themselves--and should not be admissible.
In support of the claim that cultural stereotypes are necessary for
many asylum claims, one commenter presented three excerpts from a
Department of State Human Rights Report on Guatemala. The Departments
appreciate the commenter's examples, but they do not reflect assertions
of pernicious cultural stereotypes described in this rulemaking.
The first alleged stereotype was that ``[a] culture of indifference
to detainee rights put the welfare of detainees at risk.'' However, the
report goes on to state: ``On August 22, Ronald Estuardo Fuentes
Cabrera was held in confinement while awaiting trial for personal
injury charges after a car accident. Fuentes died from internal
thoracic injury hours before his scheduled trial and without having
received a medical exam, while his wife and the passenger of the other
vehicle were taken for medical care.'' U.S. Dep't of State, 2019
Country Reports on Human Rights Practices: Guatemala 6 (2019), https://www.state.gov/reports/2019-country-reports-on-human-rights-practices/
guatemala. Further, the report nowhere alleges that Guatemalans are
indifferent to detainee rights because of some cultural trait peculiar
to Guatemalans. Thus, not only do these statements not promote any
particular cultural stereotype about Guatemalans based on race,
religion, nationality, gender or similar characteristic, but they are
supported by some facts. In short, this statement reflects verifiable
facts, not a stereotype.
The second alleged stereotype was that ``[t]raditional and cultural
practices, in addition to discrimination and institutional bias, . . .
limited the political participation of women and members of indigenous
groups.'' Once again, the report went on to detail the low numbers of
women and indigenous people in the government to support its
conclusion. Id. at 12-13. Elsewhere in the report, the State Department
included specific information about sexual harassment: ``No single law,
including laws against sexual violence, deals directly with sexual
harassment, although several laws refer to it. Human rights
organizations reported sexual harassment was widespread.'' Id. at 17.
Similarly, the report contained specific information about
discrimination: ``Although the law establishes the principle of gender
equality and criminalizes discrimination, women, and particularly
indigenous women, faced discrimination and were less likely to hold
management positions.'' Id. The Departments do not see how this broad
statement suggests a stereotype about an alleged persecutor for
purposes of supporting an asylum claim such that it would fall within
the ambit of the rule. Moreover, it is, again, based on evidence rather
than a stereotype.
The final alleged stereotype contained in the report was that
``[i]ndigenous communities were underrepresented in national politics
and remained largely outside the political, economic, social, and
cultural mainstream.'' This quote was also followed by supporting
statements, including details regarding indigenous leaders who were
killed. Id. at 20-21. Again, the Departments do not see how this broad
statement suggests a stereotype such that it would fall under the rule.
Further, it does not suggest that indigenous individuals possess some
inherent trait--as opposed to larger structural factors in the
country--that causes them to be underrepresented in national politics.
Thus, it is also based on evidence rather than a stereotype.
Other commenters expressed concern that this portion of the rule
would place a larger burden on adjudicators. The Departments appreciate
both the comment and the underlying concern. But, as noted above,
adjudicators at both Departments are experienced in assessing evidence
of little-to-no probative value, and immigration judges at DOJ are
already experienced at ruling on evidentiary objections as a matter of
course in immigration proceedings. Thus, the Departments do not believe
that this portion of the rule will increase any burden beyond what
adjudicators already face. The definition of ``cultural stereotypes''
is straightforward; the Departments have confidence that adjudicators
will be able to apply such a definition in a timely and fair manner.
Nevertheless, in response to some of the apparent confusion by some
commenters, the Departments have modified the language in the final
rule to make it clearer. The change does not reflect a substantive
modification from what was intended in the NPRM.
The Departments reject the commenters' assertions that this rule
was passed with bad intent. One aim of this rule is to allow a more
expeditious adjudication of meritorious asylum claims so that
applicants do not have to wait a lengthy amount of time before
receiving relief. The Departments agree with the commenter who stated
that many asylum applications require at least some discussion of the
culture of the country to which the applicant fears return. However,
the Departments disagree with the commenter's assertions that some
level of stereotyping would be helpful to the applicant's claim.
Stereotypes are inherently unsupported generalizations. Such conclusory
statements are not probative and can indeed be harmful, as discussed
above.
Further, the Departments disagree with the commenter who asserted
that the rule would disadvantage the applicant and violate due process.
As discussed above, an applicant's inability to submit nonprobative
evidence neither disadvantages the applicant nor violates due process.
Finally, in response to commenters' concerns about the perceived
asymmetry of the rule, the Departments note that DHS is already bound
by policy to treat stakeholders, including
[[Page 80338]]
aliens, in a non-discriminatory manner. DHS therefore may not rely on
stereotype evidence to oppose an asylum application. See U.S.
Immigration and Customs Enforcement, Office of Diversity and Civil
Rights, https://www.ice.gov/leadership/dcr (``It is U.S. Immigration
and Customs Enforcement's (ICE) policy to ensure that employees,
applicants for employment and all stake holders are treated in a non-
discriminatory manner in compliance with established laws, regulations
and Executive Orders.''); cf. Doe v. Att'y Gen., 956 F.3d 135, 155 n.10
(3d Cir. 2020) (``The applicant's specific sexual practices are not
relevant to the claim for asylum or refugee status. Therefore, asking
questions about `what he or she does in bed' is never appropriate.''
(quoting USCIS, RAIO Directorate--Officer Training: Guidance for
Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI)
Refugee and Asylum Claims 34 (Dec. 28, 2011))). Further, although
Federal case law is clear that stereotypes have no place as a basis to
deny asylum applications, e.g., Doe, 956 F.3d at 155 n.10 (collecting
cases), there is no similar Federal case law regarding the use of
stereotypes as a basis for granting asylum applications, and the issue
of the reliance on stereotypes to support an asylum application has
arisen only recently, Matter of A-B-, 27 I&N Dec. at 336 n. 9.
Consequently, as both immigration judges and DHS are already bound by
policy, if not also law, not to rely on stereotypes as a basis to
oppose or deny an asylum application, the rule does not create any
asymmetry regarding evidence of stereotypes. To the contrary, it
corrects an existing asymmetry to ensure that asylum applications are
not granted based on inappropriate evidence of stereotypes.
4.6. Internal Relocation
Comment: Commenters generally expressed concern that the NPRM would
create a standard for the analyzing the reasonableness of internal
relocation that almost no applicant for asylum, withholding of removal,
or protection under the CAT regulations would be able to meet.\58\
---------------------------------------------------------------------------
\58\ The Departments note that consideration of internal
relocation in the context of an application for withholding of
removal under the CAT regulations is different than the
consideration of internal relocation in the context of an
application for asylum and statutory withholding of removal.
Compare, e.g., 8 CFR 1208.13(b)(3), 1208.16(b)(3) (assessing the
reasonableness of internal relocation), with 1208.16(c)(3)(ii)
(assessing internal relocation without reference to reasonableness).
---------------------------------------------------------------------------
Commenters expressed several concerns with the proposed list of
factors pertaining to the internal relocation analysis in proposed 8
CFR 208.13(b)(3) and 1208.13(b)(3). First, commenters expressed concern
that the list places too much weight on the identity and reach of the
persecutor, and that it lacks factors pertaining to the asylum seeker
and factors unrelated to the asylum application (such as country
conditions).
Second, commenters asserted that the proposed list inappropriately
implies that asylum seekers coming from large countries or who are
subjected to persecution from a single source can reasonably relocate
internally. Some commenters argued that persecution does not end at the
limits of political jurisdictions and that persecutors could have
contacts throughout a country or region. One commenter noted that UNHCR
guidance does not require an asylum seeker to prove that his or her
entire home country is unsafe before seeking asylum. Similarly, one
commenter expressed concern with the proposed definition of the term
``safety,'' arguing that there has been no judicial disagreement or
confusion pertaining to the current regulation and that the proposed
definition would limit adjudicators' ability to perform case-by-case
analyses.
Third, commenters argued that the proposed rule inappropriately
focuses on an asylum seeker's ability to travel to the United States.
Commenters noted a lack of jurisprudence discussing ability to travel
and alleged that since asylum seekers had to first travel to the United
States to make a claim, the factor would lead to the denial of most
applications.
Fourth, commenters similarly expressed concern that the proposed
rule would eliminate the reasonableness analysis, thus forcing
adjudicators to ignore the overall context of an asylum applicant's
plight. One commenter argued that many cases have been sent to the BIA
from Federal courts so that adjudicators could apply the current
reasonableness test to internal relocation determinations.
Finally, commenters took issue with the NPRM's assertion that 8 CFR
208.13(b) and 1208.13(b) include ``unhelpful'' language that undermines
the need for the entire section. Commenters noted that Federal courts
and the BIA have almost unanimously endorsed the current language and
have not raised such concerns.
Commenters also expressed concern with the proposed regulation's
change to the burden of proof for asylum seekers who establish they
were subjected to past persecution by a non-governmental entity.
Commenters argued that, contrary to the NPRM's assertion, the current
regulations are preferable. Specifically, increasing the burden would
be inappropriate, commenters argued, because asylum seekers would have
already established past persecution and that the government is unable
or unwilling to protect them.
One commenter noted that the proposed change to the burden of proof
is unnecessary because DHS could offer information evidencing that
internal relocation is reasonable, and then the applicant could respond
to such information.
One commenter argued that the proposed change to the burden of
proof in the case of non-state actors unfairly targets asylum seekers
from Central American countries and Mexico because the types of
individuals and groups that would be considered non-state actors under
the proposed rule are commonly cited persecutors in asylum cases
pertaining to these countries.
Response: To respond to commenters' concerns that ``almost no
applicant . . . would be able to meet'' the revised standard for
reasonableness of internal relocation, the Departments reject that
concern as speculative. The Departments also reject a commenter's
allegation that the factors in this section were ``justifications to
deny applications of bona fide asylum seekers.'' These factors are
relevant and material to an alien's asylum eligibility, as discussed in
further detail below.
The Departments emphasize that the rule requires adjudicators to
consider ``the totality of the relevant circumstances'' (as stated in 8
CFR 208.13(b)(3), 1208.13(b)(3) (asylum); 208.16(b)(3), 1208.16(b)(3)
(statutory withholding of removal)) when determining the reasonableness
of internal relocation. The Departments note that the proposed list
identifies the ``most relevant'' circumstances for consideration and
provides a streamlined presentation of those factors. See 85 FR at
36282. The list of factors in paragraph (b)(3) is not exhaustive,
however, so the regulatory amendments do not foreclose consideration of
factors mentioned by commenters, such as factors related to the
particular asylum seeker or factors unrelated to the asylum
application. This approach is not a one-size-fits-all analysis, as one
commenter alleged. Rather, the totality of the relevant circumstances
test allows adjudicators to consider each case individually.
Relatedly, the Departments disagree that the list of factors afford
inordinate weight to the identity and reach of the persecutor or that
adjudicators must make determinations in a vacuum. As a baseline
matter, asylum is a form of
[[Page 80339]]
discretionary relief for which an applicant must demonstrate to the
Secretary or Attorney General that he or she, inter alia, is a refugee
as defined in section 101(a)(42) of the Act, 8 U.S.C. 1101(a)(42), and
warrants a favorable exercise of discretion. INA 208(b)(1)(A), 8 U.S.C.
1158(b)(1)(A); Cardoza-Fonseca, 480 U.S. at 428 n.5; 8 CFR 208.14(a),
(b), 1208.14(a), (b). To determine whether the applicant is a refugee
under section 101(a)(42) of the Act, 8 U.S.C. 1101(a)(42), the
Departments assess the applicant's ``fear of persecution,'' which
includes whether the applicant could relocate to avoid future
persecution and whether it would be reasonable to do so. See Melkonian
v. Ashcroft, 320 F.3d 1061, 1069 (9th Cir. 2003) (requiring a finding
that an alien could relocate to avoid persecution and that it ``must be
reasonable to expect them to do so'' (citing Cardenas v. INS, 294 F.3d
1062, 1066 (9th Cir. 2002)); see also Singh v. Ilchert, 63 F.3d 1501,
1511 (9th Cir. 1995) (permitting the Attorney General to assess an
alien's ability to relocate to a safer part of the country). The Act
does not require consideration of internal relocation. See generally
INA 208, 8 U.S.C. 1158. Rather, this analysis was implemented by
regulation to address whether ``an [asylum] applicant may be able to
avoid persecution in a particular country by relocating to another area
of that country.'' Asylum Procedures, 65 FR 76121 (Dec. 6, 2000). This
rule would refine those regulations, which agencies may do so long as
they give a reasoned explanation for the change. See, e.g., Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (``Agencies are
free to change their existing policies as long as they provide a
reasoned explanation for the change.'' (citing Brand X, 545 U.S. at
981-82)).
As the Departments explained in the NPRM, the changes are necessary
for numerous reasons. First, the Departments believe the ``current
regulations regarding internal relocation inadequately assess the
relevant considerations.'' 85 FR at 36282. Second, the Departments
changed the regulatory burdens of proof because the Departments
determined that the burdens should generally align with those
``baseline assessments of whether types of persecution generally occur
nationwide, while recognizing that exceptions, such as persecution by
local governments or nationwide organizations, might overcome these
presumptions.'' Id. Third, the Departments made amendments to
facilitate ``ease of administering these provisions.'' Id. The
Departments believe that the rulemaking will better serve the needs of
adjudicators who will benefit from the addition of factors that more
adequately assess relevant considerations for internal relocation and
the elimination of less relevant factors. Despite commenters'
disagreements with the new list of factors, the Departments believe
that the regulations must clearly and accurately guide adjudicators in
assessing the reasonableness of internal relocation. The Departments
anticipate that the new regulations will facilitate more accurate and
timely determinations, given that adjudicators will spend most of their
time considering the most relevant factors and less time considering
less relevant factors or trying to determine whether certain factors
are relevant. This is especially significant considering the
unprecedented pending caseload and the need for efficient adjudication.
See EOIR, Adjudication Statistics: Total Asylum Applications (Oct. 13,
2020), https://www.justice.gov/eoir/page/file/1106366/download. Given
these revisions to the regulations, adjudicators are not left to make
determinations ``in a vacuum,'' as commenters suggested.
Accordingly, the Departments determined that the following factors
were most relevant to an adjudicator's analysis: ``the size of the
country of nationality or last habitual residence, the geographic locus
of the alleged persecution, the size, reach, or numerosity of the
alleged persecutor, and the applicant's demonstrated ability to
relocate to the United States in order to apply for asylum.'' 8 CFR
208.13(b)(3), 1208.13(b)(3) (asylum); 208.16(b)(3), 1208.16(b)(3)
(statutory withholding of removal). The Departments do not imply that
this list compels the conclusion that asylum seekers who come from
large countries or who were subjected to persecution from a single
source can reasonably relocate internally, as commenters alleged.
Instead, the Departments find those factors ``most relevant'' for
adjudicators to consider in determining whether internal relocation is
reasonable--not that those factors absolutely indicate that internal
relocation is reasonable. 85 FR at 36282. Furthermore, as noted above,
the listed relevant factors are not exhaustive and adjudicators may
consider other factors that may be relevant to a particular case.
As commenters pointed out, the Departments recognize that
persecutors may not be confined to political jurisdictions, which is
already reflected in the factor assessing the ``size, reach, or
numerosity of the alleged persecutor.'' 8 CFR 208.13(b)(3),
1208.13(b)(3) (asylum); 208.16(b)(3), 1208.16(b)(3) (statutory
withholding of removal). Moreover, the Departments disagree with a
commenter's allegation that the rule redefines safety--neither the
proposed rule nor this final rule redefines ``safety.''
The Departments disagree that the factor assessing the alien's
ability to travel to the United States is inappropriate. First, this
factor is considered under the totality of the circumstances; thus,
this factor's presence will not automatically result in one
determination or another. The Departments added this factor so that
adjudicators would fully consider whether an alien had already traveled
a great distance to relocate to the United States, and whether the
alien's ability to do so reflected a similar ability to relocate within
the country from which the alien is seeking protection. Second, in
contrast to commenters, the Departments believe that a lack of
jurisprudence on this factor counsels in favor of including it in the
regulation. Nor do the Departments find the lack of directly relevant
jurisprudence surprising. Because the current regulations do not
highlight an alien's ability to travel to the United States as one of
the most relevant factors, courts would have had little reason to
consider this factor unless a party raised it. See, e.g., Garcia-Cruz
v. Sessions, 858 F.3d 1, 8-9 (1st Cir. 2017) (remanding the case to the
BIA to consider the reasonableness factors specifically provided in the
regulations); Khattak, 704 F.3d at 203-04 (same). Nevertheless, case
law has considered travel-related factors such as an alien's return
trips or previous relocations. See, e.g., Ullah v. Barr, No. 18-
28912020 WL 6265858, at *1-2 (2d Cir. Oct. 26, 2020) (holding that
country's lack of restriction on internal movement or relocation and
alien's ability to work and move around the country without incident
supported the BIA's finding that the alien could safely relocate to
avoid future persecution); Gambashidze v. Ashcroft, 381 F.3d 187, 193
(3d Cir. 2004) (considering, in part, that the alien and his family
relocated to a city that ``is not a great distance'' from the city
where they faced persecution before the alien relocated again to the
United States); Belayneh v. I.N.S., 213 F.3d 488, 491 (9th Cir. 2000)
(holding that the alien had not established a reasonable fear of future
persecution in part because she had ``traveled to the United States and
returned to Ethiopia three times without incident''). These cases
provide examples in which courts
[[Page 80340]]
recognized that the ability and willingness to travel and the distance
traveled are all relevant to the reasonableness inquiry because they
may indicate the extent to which an alien is physically or financially
able to travel. In that same vein, the Departments have determined that
an alien's ability to travel to the United States is clearly relevant
and appropriate to the reasonableness inquiry.
The rule does not eliminate the reasonableness analysis, as
commenters alleged. First, the heading of each regulatory section is
``Reasonableness of internal relocation.'' 8 CFR 208.13(b)(3),
1208.13(b)(3) (asylum); 208.16(b)(3), 1208.16(b)(3) (statutory
withholding of removal). The heading indicates the content of the
section. What follows is a list of factors and the requisite burdens of
proof to aid an adjudicator's assessment of the reasonableness of
internal relocation. For example, the regulations state, in the case of
a governmental persecutor, ``it shall be presumed that internal
relocation would not be reasonable, unless the Department of Homeland
Security establishes by a preponderance of the evidence that, under all
the circumstances, it would be reasonable for the applicant to
relocate'' and, in the case of a non-governmental persecutor, ``there
shall be a presumption that internal relocation would be reasonable
unless the applicant establishes, by a preponderance of the evidence,
that it would be unreasonable to relocate.'' 8 CFR 208.13(b)(3)(ii),
(b)(3)(iii), 1208.13(b)(3)(ii), (b)(3)(iii) (emphases added). The
reasonableness inquiry continues to be an active prong of the internal
relocation assessment. In addition, under the new regulations,
adjudicators must not disregard other factors, as commenters alleged;
rather, the regulations instruct adjudicators to consider ``the
totality of the relevant circumstances.'' 8 CFR 208.13(b)(3),
1208.13(b)(3). Application of the previous regulations by courts and
the BIA are irrelevant and unpersuasive as evidence that the rules
cannot be changed. As previously explained, it is properly within the
Departments' authority to revise their regulations. See, e.g., Encino
Motorcars, LCC, 136 S. Ct. at 2125.
The Departments maintain that the language in the previous
regulations was unhelpful. 85 FR at 36282. Equivocal phrases in the
prior regulation--that factors ``may, or may not, be relevant''--are
almost paradigmatically unhelpful. The Departments believe the revised
regulations, including review under the totality of the circumstances
and the nonexhaustive list of factors provided, will continue to allow
adjudicators to assess internal relocation on a case-by-case basis.
Although commenters alleged that Federal courts and the BIA have
``nearly unanimously endorsed'' the previous regulations, the cases
referenced in support of their allegations merely apply the previous
regulations. Judicial application of regulations cannot be construed as
``endorsing'' the regulations except to the extent that a court finds
the regulations to be a reasonable interpretation of the statute. See
Chevron, 467 U.S. at 844 (``[A] court may not substitute its own
construction of a statutory provision for a reasonable interpretation
made by the administrator of an agency.'').
Finally, the Departments disagree that changing the burden of proof
is inappropriate. As explained in the NPRM, the Departments believe the
realigned burden of proof follows the ``baseline assessments of whether
types of persecution generally occur nationwide, while recognizing that
exceptions, such as persecution by local governments or nationwide
organizations, might overcome these presumptions.'' 85 FR at 36282.
Contrary to the commenters' assertion, when an adjudicator is
determining reasonableness of internal relocation, an applicant may not
have already established past persecution or that the government was
unable or unwilling to protect the alien. For example, an applicant may
be claiming a fear of future persecution pursuant to 8 CFR
208.13(b)(2), 1208.13(b)(2). Although showing past persecution raised a
rebuttable presumption that internal relocation would be unreasonable
under the prior regulation, the Departments have concluded, upon fresh
review, that applying a blanket presumption independent of the identity
of the persecutor is inconsistent with assessments of how widespread
persecution is likely to be based on the identity of the alleged
persecutor. Whereas government or government-sponsored actors would
generally be expected to have nationwide influence, a private
individual or organization would not ordinarily have such reach.
Placing the burden on the government to show that the alien's fear of
future persecution is not well-founded where he was previously
persecuted by a non-governmental actor therefore inverts the usual
burden of proof--which lies with the applicant--without good reason.
See 85 FR at 36282 (explaining this rationale).
In the final rule, DHS still bears the burden to demonstrate that
the applicant could relocate to avoid future persecution and that it
would be reasonable for the applicant to do so in the case of a
governmental persecutor (8 CFR 208.13(b)(3)(ii), 1208.13(b)(3)(ii)
(asylum); 208.16(b)(3)(ii), 1208.16(b)(3)(ii) (statutory withholding of
removal)), and the alien bears the burden to demonstrate that it would
be reasonable to relocate in the case of a non-governmental persecutor
(8 CFR 208.13(b)(3)(iii), 1208.13(b)(3)(iii)). These burdens reflect
the Departments' belief that aliens who claim past persecution by non-
state actors should bear the burden to rebut the presumption that
internal relocation is reasonable.
The different burdens of proof do not unfairly target or
discriminate against asylum seekers from Central American countries and
Mexico, as commenters alleged. The new burden of proof applies to all
asylum seekers, regardless of the country of origin. The Departments
note that, contrary to the commenters' allegations, the examples of
private-actor persecutors provided by the regulations exist in many
countries, not just Central American countries and Mexico. See, e.g.,
Mashiri v. Ashcroft, 383 F.3d 1112, 1115-16 (9th Cir. 2004) (detailing
facts in which a German citizen of Afghan descent was persecuted by
non-state actors in Germany, some of whom were part of a Neo-Nazi mob);
Doe v. Att'y Gen. of the U.S., 956 F.3d 135, 139-40 (3d Cir. 2020)
(detailing facts in which a Ghanaian citizen was persecuted by family
members and neighbors in Ghana).
4.7. Factors for Consideration in Discretionary Determinations
Comment: Commenters generally expressed concern that the
Departments did not provide a sufficient justification for the proposed
changes and did not consider the practical consequence of the proposed
rule. Commenters similarly expressed general concerns that the proposed
changes are in conflict with section 208(a)(1) of the Act, 8 U.S.C.
1158(a)(1), are contrary to case precedent, are immoral, and would
negatively impact children seeking asylum. The true purpose of the
rule, some commenters asserted, is to lead to the denial of virtually
all asylum applications.
Commenters expressed concern that the Departments seek to depart
from the BIA's approach in Matter of Pula, 19 I&N Dec. 467 (BIA 1987).
One commenter stated that it was inappropriate to use language from the
[[Page 80341]]
case to justify the proposed new factors while also superseding the
case's central holding. Commenters stated that Matter of Pula instructs
that danger of persecution should outweigh all but the most egregious
factors. Commenters similarly stated that Matter of Pula requires
adjudicators to consider the totality of the circumstances and to not
give any particular factor such significant weight that it would
outweigh all the others.
Citing East Bay Sanctuary Covenant v. Barr, 964 F.3d 832 (9th Cir.
2020), one commenter expressed concern that the proposed rule conflicts
with recent Federal court precedent that the creation of ``eligibility
bars'' to asylum is constrained by statute. The commenter asserted that
as some of the discretionary factors would require denial of
applications as a matter of discretion, they are, in actuality,
unlawful eligibility bars.
Commenters stated that the proposed negative factors that
adjudicators would be required to consider are not related to the
merits of an asylum claim and are unavoidable in many cases. As a
result, commenters argued, adjudicators would be required to deny most
asylum cases as a matter of discretion. One commenter asserted that the
Departments did not consider alternative policy options, and one
commenter stated that the rule should be amended to require
adjudicators to consider positive factors in their discretionary
determinations. Commenters argued that inappropriately cabining
discretion in this way is in conflict with making asylum determinations
on a case-by-case basis.
Commenters expressed concern that the only way for applicants to
overcome the presence of nine of the proposed adverse factors would be
to show ``extraordinary circumstances'' or ``exceptional and extremely
unusual hardship.'' One commenter stated that a demonstration of past
persecution or a well-founded fear of future persecution is ``per se''
exceptional and extremely unusual hardship. Therefore, the commenter
argued that by meeting the legal standard for asylum, applicants
necessarily would meet the proposed new standard of exceptional and
extremely unusual hardship. The commenter similarly stated that past
persecution is ``exceptional hardship.'' Another commenter stated that
application of the ``exceptional and extremely unusual hardship''
standard in exercising discretion for asylum applications contravenes
the INA because Congress did not expressly provide for that heightened
standard. Instead, the commenter noted that in section 208(b)(1)(A) of
the Act, 8 U.S.C. 1158(b)(1)(A), Congress stated that the Attorney
General ``may'' grant asylum. The commenter asserted that if Congress
intended the use of a heightened standard, it would have expressly done
so, as it did in section 240A(b)(1)(D) of the Act, 8 U.S.C.
1229b(b)(1)(D), for non-LPR cancellation of removal. The commenter
cited the Supreme Court's decision in Cardoza-Fonseca for support. See
480 U.S. at 432 (``[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.''). Accordingly, consistent
with Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978), the commenter
asserted that the totality of the circumstances approach should be
applied in the exercise of discretion for asylum applications.
Commenters disagreed with the Departments' position that creating a
list of proposed factors would save adjudicators time. Specifically,
commenters noted that since a finding of ``extraordinary
circumstances'' or an exceptional and extremely unusual hardship would
require a separate hearing, the proposed factors would not save time.
Response: The Departments disagree that they failed to provide
sufficient justification for this proposed change in the NPRM,
evidenced by the three-page discussion of this section alone. See 85 FR
at 36282-85. Nevertheless, the Departments provide further explanation
in this final rule.
Asylum is a discretionary benefit. INA 208(b)(1)(A), 8 U.S.C.
1158(b)(1)(A) (providing that the Departments ``may grant asylum to an
alien who has applied for asylum in accordance with the requirements
and procedures established by the Secretary of Homeland Security or the
Attorney General under this section'' (emphasis added)); see also
Cardoza-Fonseca, 480 U.S. at 443 (``[A]n alien who satisfies the
applicable standard under Sec. 208(a) does not have a right to remain
in the United States; he or she is simply eligible for asylum, if the
Attorney General, in his discretion, chooses to grant it.'' (emphases
in original)). Accordingly, ``with respect to any form of relief that
is granted in the exercise of discretion,'' an alien must satisfy the
eligibility requirements for asylum and establish that the application
``merits a favorable exercise of discretion.'' INA 240(c)(4)(A),8
U.S.C. 1229a(c)(4)(A); see also Matter of A-B-, 27 I&N Dec. at 345 n.12
(explaining that the ``favorable exercise of discretion is a discrete
requirement for the granting of asylum and should not be presumed or
glossed over solely because an applicant otherwise meets the burden of
proof for asylum eligibility under the INA'' and providing relevant
discretionary factors to consider in the exercise of such discretion),
abrogated on other grounds, Grace II, 965 F.3d at 897-900.
In its broadest sense, legal discretion is defined as the
``exercise of judgment by a judge or court based on what is fair under
the circumstances and guided by the rules and principles of law; a
court's power to act or not act when a litigant is not entitled to
demand the act as a matter of right.'' Discretion, Black's Law
Dictionary (11th ed. 2019); see also Discretion, Merriam-Webster (last
updated July 6, 2020), https://www.merriam-webster.com/dictionary/discretion (defining ``discretion'' as the ``power of free decision or
latitude of choice within certain legal bounds''). While the statute
and case law are clear that a grant of asylum is subject to discretion,
see INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); INS v. Stevic, 467 U.S.
407, 423 n.18 (1984), the statute and regulations are silent as to
guidance that may direct such exercise of discretion.
The BIA has explained that the exercise of discretion requires
consideration of the relevant factors in the totality of the
circumstances, based on the facts offered by the alien to support the
application in each case. See Matter of Pula, 19 I&N Dec. at 473
(noting that ``a number of factors . . . should be balanced in
exercising discretion''). Further, the BIA has provided factors that
may be relevant to the inquiry, including humanitarian considerations,
such as the alien's age or health; any countries through which the
alien passed en route to the United States and those countries'
available refugee procedures; personal ties to the United States; and
the alien's use of fraudulent documents. See id. at 473-74 (``Each of
the factors . . . will not, of course, be found in every case. . . . In
the absence of any adverse factors, however, asylum should be granted
in the exercise of discretion.'').
In building upon the BIA's guidance and evaluating all policy
options, the Departments have determined that it is appropriate to
codify discretionary factors for adjudicators to consider. 85 FR at
36283. The statute and regulations currently contain discretionary
factors for consideration in regard to other forms of relief. See,
e.g., 8 CFR 212.7(d), 1212.7(d) (authorizing the Attorney General to
consent to an application for visa, admission to the United States, or
adjustment of status, for certain criminal
[[Page 80342]]
aliens when declining to favorably exercise discretion ``would result
in exceptional and extremely unusual hardship''); see also Matter of Y-
L-, 23 I&N Dec. 270, 276-77 (A.G. 2002) (providing various factors that
may indicate extraordinary and compelling circumstances that the
Attorney General may consider to determine whether certain aggravated
felonies are ``particularly serious crimes'' under section 241(b)(3)(B)
of the INA for purposes of withholding of removal); Matter of Jean, 23
I&N Dec. 373, 383-84 (A.G. 2002) (explaining that discretionary relief
requires a balancing of the equities, including, if any, extraordinary
circumstances, the gravity of an alien's underlying criminal offense,
or unusual hardships). The Departments have similar authority to
promulgate discretionary factors for asylum relief. INA 208(b)(1)(A), 8
U.S.C. 1158(b)(1)(A); see 85 FR at 36283.
Contrary to commenters' concerns that the proposed rule effectively
creates bars (or ``eligibility bars'') to asylum and inappropriately
cabins adjudicators' discretion, the Departments reiterate that this
rulemaking identifies various factors for consideration in making a
discretionary determination on an asylum application. These factors are
not bars; accordingly, concerns that the rule would result in the
denial of all asylum claims are misguided. Rather, in regard to the
three significantly adverse factors, the proposed rule clearly stated
that ``the adjudicator should also consider any other relevant facts
and circumstances to determine whether the applicant merits asylum as a
matter of discretion.'' Id. (emphasis added). And in regard to the nine
adverse factors, the proposed rule stated that ``the adjudicator may
nevertheless favorably exercise discretion in extraordinary
circumstances . . . or if the alien demonstrates, by clear and
convincing evidence, that the denial of asylum would result in
exceptional and extremely unusual hardship to the alien.'' Id.
(emphasis added). Thus, a finding that any of the factors applies does
not foreclose consideration of other relevant facts and circumstances,
which a true asylum ``bar'' would require.
Commenters asserted that this rule is inconsistent with the BIA's
approach in Matter of Pula and subsequent related case law in which
past persecution or a strong likelihood of future persecution ``should
generally outweigh all but the most egregious of adverse factors.'' 19
I&N Dec. at 474. The Departments clearly stated in the NPRM that the
rule ``supersede[d]'' the BIA's approach in Matter of Pula, 85 FR at
36285, which is squarely within their authority. ``Agencies are free to
change their existing policies as long as they provide a reasoned
explanation for the change.'' Encino Motorcars, LLC, 136 S. Ct. at 2125
(citing Brand X, 545 U.S. at 981-82). The Court has further explained
what a ``reasoned explanation'' should entail: Awareness in its
decision making process that it is changing positions; demonstration
that the new policy is permissible under the implementing statute, and
not just the APA; statement and belief that the new policy is better;
and provision of ``good reasons'' for the new policy. See Organized
Village of Kake v. U.S. Dep't of Agric., 795 F.3d 956, 966 (9th Cir.
2015) (en banc) (summarizing FCC v. Fox Television Stations, Inc., 556
U.S. 502, 515-16 (2009)). In the NPRM, the Departments provided such
information: awareness of changed position, 85 FR at 36285;
demonstration that the policy is permissible under the INA and APA, see
generally 85 FR at 36282-85; statement that the new policy is better,
85 FR at 36283; and good reasons for the new policy, 85 FR at 36283,
36285. Accordingly, the Departments properly and permissibly changed
their policy from Matter of Pula.
Significantly, the rule does not preclude consideration of positive
factors. Further, the NPRM instructed adjudicators to ``consider any
other relevant facts and circumstances to determine whether the
applicant merits asylum as a matter of discretion.'' 85 FR at 36283.
Accordingly, the rule allows for consideration of positive equities as
part of an adjudicator's discretionary analysis. The Departments have
determined that the factors provided in the NPRM are appropriate and
relevant to such analysis.
Moreover, the rule does not ``categorically limit'' adjudicators'
discretion or make certain outcomes ``practically mandatory''; rather,
the rule guides the exercise of discretion by providing various factors
for consideration. The NPRM clearly stated, and the Departments
reiterate, that the proposed factors were ``nonexhaustive.'' 85 FR at
36283. Further, the NPRM stated that ``any other relevant facts and
circumstances'' should be considered and provided exceptions to one of
the significantly adverse factors. See id. Accordingly, although the
Departments proposed significantly adverse and adverse factors, an
adjudicator must continue to consider positive factors in the
discretionary analysis.
The Departments disagree with commenters that past or future
persecution should be considered ``per se'' exceptional and extremely
unusual hardship. Rather, the Departments have determined that the
approach described in the NPRM--providing criteria for an adjudicator's
consideration in the exercise of discretion, in addition to
consideration of whether extraordinary circumstances or exceptional and
extremely unusual hardship exists--is appropriate. Moreover, the
Departments disagree that consideration of extraordinary circumstances
or exceptional and extremely unusual hardship conflicts with the Act.
Congress authorized the Attorney General to make discretionary asylum
determinations, INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A), and that
authority permits him to deny asylum even if an applicant can establish
past or future persecution.
The Departments ``believe that the inclusion of the proposed
factors in the rule will better ensure that immigration judges and
asylum officers properly consider, in all cases, whether applicants for
asylum merit the relief as a matter of discretion, even if the
applicant has otherwise demonstrated eligibility for asylum.'' 85 FR at
36283, 36285. In this way, the list of factors to consider, including
consideration of extraordinary circumstances or exceptional and
extremely unusual hardship, would take place in one streamlined
adjudication. Accordingly, the Departments disagree with commenters
that the list of factors would not save time, is ``unworkable'' or
``cumbersome,'' or limits adjudicatory discretion.
The Departments also disagree that this section of the rule is
immoral or would negatively impact children seeking asylum.
Adjudicators consider these factors, as relevant, to all asylum cases.
As it may relate specifically to children, if extraordinary
circumstances exist or exceptional and extremely unusual hardships
would arise if the application was denied, the adjudicator should
consider such circumstances. See Section II.C.1.3 of this preamble for
further discussion on this point.
4.7.1. Unlawful Entry or Unlawful Attempted Entry Into the United
States
Comment: Commenters expressed general concern that the proposed
regulation would improperly lead adjudicators to deny ``virtually all''
applications for asylum seekers who enter the United States between
ports of entry. One commenter stated that the ``immediate flight''
exception is too narrow.
Commenters averred that the proposed regulation is contrary to
section 208(a)(1) of the Act, 8 U.S.C. 1158(a)(1), which instructs that
individuals are eligible to apply for
[[Page 80343]]
asylum regardless of where they enter the United States.
Commenters expressed concern that the proposed regulation is
inconsistent with case law. Commenters argued that contrary to the
NPRM's argument, Matter of Pula, 19 I&N Dec. Dec. 467 (BIA 1987), does
not support the Departments' position that an unlawful entry should be
a significant adverse factor. Instead, one commenter asserted that in
Matter of Pula the BIA reversed Matter of Salim, 18 I&N Dec. 311 (BIA
1982), to the extent that Matter of Salim suggested that ``the most
unusual showing of countervailing equities'' was needed to overcome a
``circumvention of orderly procedures.'' Citing, for example, Zuh v.
Mukasey, 547 F.3d 504, 511 n.4 (4th Cir. 2008), commenters similarly
argued that Federal courts of appeals have given the manner of an
asylum seeker's entry into the United States very little weight (and
sometimes no weight) in discretionary determinations and have noted
that place of entry reveals little about the merits of the case. And,
citing Huang v. INS, 436 F.3d 89, 100 (2d Cir. 2006), one commenter
noted that the Second Circuit Court of Appeals reasoned that if an
illegal manner of entry were afforded significant weight, then
virtually no asylum applicant would prevail.
Commenters expressed concern that codification of unlawful entry as
a significantly adverse factor in discretionary determinations
contradicts recent Federal court decisions from the Ninth Circuit Court
of Appeals and the District Court for the District of Columbia that
struck down November 2018 regulations by the Departments. Commenters
argued that the NPRM is similar to a 2018 Interim Final Rule (IFR)
that, when coupled with a presidential proclamation issued the same
day, made any individual who arrived between designated ports of entry
ineligible for asylum. Commenters noted that the Ninth Circuit Court of
Appeals found that the 2018 IFR was arbitrary and capricious and that
it infringed upon treaty commitments (E. Bay Sanctuary Covenant v.
Trump, 950 F.3d 1242 (9th Cir. 2020)). Commenters noted that the
District Court for the District of Columbia held that the bar was
inconsistent with the INA and congressional intent (O.A. v. Trump, 404
F. Supp. 3d 109, 147 (D.D.C. 2019)). Commenters expressed concern that
the present rulemaking is intended to circumvent the courts' decisions
on the 2018 IFR.
Commenters disagreed with the NPRM's reasoning that the proposed
rule is necessary to address the strained resources used to adjudicate
the growing number of asylum cases. One commenter asserted that
``expediency'' is not an appropriate consideration in determining the
relief available to asylum seekers. The commenter also noted that in
Gulla v. Gonzales, 498 F.3d 911, 919 n.2 (9th Cir. 2007), the Ninth
Circuit Court of Appeals held that ``hypothetical numbers'' of
potential asylum seekers is not a basis to deny relief to an applicant
who has demonstrated a valid claim. The commenter similarly argued that
limiting asylum to those who traveled from contiguous countries and
those who flew directly to the United States is in conflict with case
precedent and obligations under the 1967 Refugee Protocol.
Commenters expressed concern with the impact of the proposed rule
in light of the CBP's practice of ``metering.'' Commenters asserted
that, under the practice, applicants are required to wait for months in
``dangerous conditions'' in Mexico before they are able to apply for
asylum. Commenters stated that some applicants are motivated to enter
the United States between ports of entry in order to avoid the
dangerous conditions.
One commenter expressed concern that codifying unlawful entry as a
significant adverse discretionary factor would particularly burden
children. The commenter argued that children often arrive with adults
(such as parents, smugglers, or traffickers) who choose the manner and
place of entry. The commenter argued further that children who travel
to the United States on their own may not comprehend the importance of
arriving at a port of entry.
Response: The Departments disagree that this factor will result in
the denial of ``virtually all'' asylum applications. This factor is but
one factor that an adjudicator must consider in light of all other
relevant factors and circumstances. 85 FR at 36283. Likewise, the
Departments disagree that the exception for aliens who enter or attempt
entry ``made in immediate flight,'' 8 CFR 208.13(d)(1)(i),
1208.13(d)(1)(i), is too narrow. The Departments believe this exception
properly balances the need for orderly processing of aliens with urgent
humanitarian considerations.
As described throughout this rule, asylum is a discretionary
benefit. INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). The Departments have
a legitimate interest in maintaining order and security on U.S. borders
through the administration of lawful admissions procedures and, as
stated in the proposed rule, the Departments remain concerned by the
immense strain on resources needed to process aliens who illegally
enter the United States. 85 FR at 36283 (citing Aliens Subject to a Bar
on Entry Under Certain Presidential Proclamations; Procedures for
Protection Claims, 83 FR 55934 (Nov. 9, 2018)). Aliens who unlawfully
enter the United States circumvent the requirement that all applicants
for admission be inspected, see INA 235(a)(3), 8 U.S.C. 1225(a)(3);
break U.S. law, see INA 212(a)(6)(A), 8 U.S.C. 1182(a)(6)(A); INA
275(a)(1), 8 U.S.C. 1325(a)(1); and contribute to the ever-increasing
strain on the government's limited resources. Given such limited
resources, and subject to a full discretionary analysis of all relevant
factors as described in the NPRM, the Departments have determined that
failure to lawfully apply for admission, in other words, unlawful entry
or attempted unlawful entry, should generally be considered a
significant adverse factor in an asylum adjudication.
The Departments disagree with commenters' allegations that DHS
procedures at the border have ``virtually shut down the processing of
asylum applications'' and prevented asylum seekers from lawfully
presenting themselves at the border. At various times since 2016, CBP
has engaged in metering to regulate the flow of aliens present at land
ports of entry on the southern border in order to ``address safety and
health hazards that resulted from overcrowding at ports of entry.'' See
DHS, OIG 18-84, Special Review--Initial Observations Regarding Family
Separation Issues Under the Zero Tolerance Policy 5-6 & n.11 (Sept. 27,
2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-10/OIG-18-84-Sep18.pdf. Individuals who are subject to metering are not
prevented from presenting at the port of entry.\59\
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\59\ The permissibility of this practice is the subject of
ongoing litigation, and the Departments decline to further comment
on the legality or propriety of the practice in this rulemaking. See
Al Otro Lado, Inc. v. McAleenan, No. 17-cv-02366-BAS-KSC, 2020 WL
4015669 (S.D. Cal. July 16, 2020).
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Claims that refugees who are unable to get a visa will have to
overcome the significant negative discretionary factor are unfounded.
The rule does not require any alien to obtain a visa in order to apply
for asylum. Under the law, ``[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 and including an alien who is brought
to the United States after having been interdicted in international or
United States waters) irrespective of such alien's status, may apply
for asylum,''
[[Page 80344]]
INA 208(a)(1), 8 U.S.C. 1158(a)(1), and nothing in the rule changes
that statutory framework. Moreover, nothing in the rule changes the
longstanding principle that the Secretary and the Attorney General may
deny asylum as a matter of discretion, even to aliens who otherwise
meet the statutory definition of a refugee. See INS v. Cardoza-Fonseca,
480 U.S. at 428 n.5, 444-45 (``It is important to note that the
Attorney General is not required to grant asylum to everyone who meets
the definition of refugee. Instead, a finding that an alien is a
refugee does no more than establish that `the alien may be granted
asylum in the discretion of the Attorney General.'. . . [Congress]
chose to authorize the Attorney General to determine which, if any,
eligible refugees should be denied asylum.'' (emphasis in original)
(citation omitted)). Rather, consistent with the relevant authority,
INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A), the Secretary and Attorney
General are simply providing additional clarity and guidance to
adjudicators to aid their consideration of asylum claims as a matter of
discretion.
The Departments disagree with commenters' assertion that Matter of
Pula, 19 I&N Dec. 467 (BIA 1987), is ``fundamentally incompatible''
with this rule. As a threshold matter, the Departments reiterate that
the rule incorporates as a discretionary factor consideration of
whether an alien unlawfully entered or attempted to unlawfully enter
the United States. 85 FR at 36283. Matter of Pula similarly allows for
consideration of this factor as part of the discretionary analysis:
Yet while we find that an alien's manner of entry or attempted
entry is a proper and relevant discretionary factor to consider in
adjudicating asylum applications, we agree with the applicant that
Matter of Salim, supra, places too much emphasis on the
circumvention of orderly refugee procedures. This circumvention can
be a serious adverse factor, but it should not be considered in such
a way that the practical effect is to deny relief in virtually all
cases. This factor is only one of a number of factors which should
be balanced in exercising discretion, and the weight accorded to
this factor may vary depending on the facts of a particular case.
19 I&N Dec. at 473 (emphases added).
The rule is consistent with Matter of Pula inasmuch as that factor
must not be considered in a way that practically denies relief in all
cases. The rule clearly states that the factor is one of many
discretionary factors for an adjudicator to consider, consistent with
Matter of Pula's holding that the totality of the circumstances should
be examined. 85 FR at 36283 (``If one or more of these factors applies
to the applicant's case, the adjudicator would consider such factors to
be significantly adverse for purposes of the discretionary
determination, though the adjudicator should also consider any other
relevant facts and circumstances to determine whether the applicant
merits asylum as a matter of discretion.''); 8 CFR 208.13(d),
(d)(2)(ii), 1208.13(d), (d)(2)(ii). Like Matter of Pula, the rule would
not treat this factor as an absolute bar. See 8 CFR 1208.13(d)
(``Factors that fall short of grounds of mandatory denial of an asylum
application may constitute discretionary considerations.'').
Similarly, the Departments disagree with commenters' assertions
that this rule contravenes section 208(a)(1) of the Act, 8 U.S.C.
1158(a)(1). As explained, this rule does not bar individuals from
applying for asylum. The rule merely articulates that unlawful entry or
attempted unlawful entry are significant adverse factors when
considering whether to grant asylum as a matter of discretion.
Commenters cited various Federal circuit court treatment that
allegedly forecloses consideration of this factor as significantly
adverse. Cases cited by the commenters, however, prohibit the use of
this factor as a bar to asylum,\60\ and the Departments reiterate that
the articulated discretionary factors do not equate to asylum bars.
Commenters also selectively quoted from cases for support, thus
mischaracterizing several cases as foreclosing provisions of the
NPRM.\61\ Insofar as commenters cited to Matter of Pula's approach that
considers persecution or strong likelihood of future persecution as
factors that ``generally outweigh all but the most egregious adverse
factors,'' 19 I&N Dec. at 474, the Departments reiterate that the rule
supersedes Matter of Pula in that regard. See 85 FR at 36285. Given
that non-discretionary statutory withholding of removal and CAT
protection are available, the Departments believe the rule's revised
approach that considers the enumerated discretionary factors under the
totality of the circumstances is appropriate in all cases, including
those in which the applicant has otherwise demonstrated asylum
eligibility. See id.
---------------------------------------------------------------------------
\60\ Commenters cited Gulla, 498 F.3d at 917, which states that
``it would be anomalous for an asylum seeker's means of entry to
render him ineligible for a favorable exercise of discretion,'' id.
(emphasis added), and Huang, 436 F.3d at 100, which contemplates
whether ``illegal manner of flight and entry were enough
independently to support a denial of asylum,'' id. (emphasis added).
The Departments understand those cases to state that manner of entry
cannot, on its own, bar an applicant from asylum relief. Further,
the Departments note that in regards to manner of entry, Gulla found
that the petitioner did not unlawfully enter or attempt to enter the
United States, 498 F.3d at 919; thus, that case is not particularly
relevant for purposes of the factor at issue in 8 CFR
208.13(d)(1)(i), 1208.13(d)(1)(i).
\61\ For example, commenters stated that Federal circuit courts
have given ``manner of entry'' ``little to no weight'' in
discretionary determinations. Commenters quoted from Zuh v. Mukasey,
547 F.3d 504 (4th Cir. 2008). In context, however, the court first
referenced Matter of Pula's totality of the circumstances analysis
and then stated that the ``use of fraudulent documents to escape
imminent capture or further persecution'' should be afforded
``little to no weight.'' Id. at 511 n.4 (emphasis added). Zuh does
not stand for the proposition that this factor should never be
afforded greater weight.
---------------------------------------------------------------------------
Commenters also contend that this rule contradicts Federal
precedents striking down the Departments' previous rule, Aliens Subject
to a Bar on Entry Under Certain Presidential Proclamations; Procedures
for Protection Claims, 83 FR 55934 (Nov. 9, 2018).\62\ Unlike the rule
struck down in those cases, however, consideration of unlawful entry or
attempted unlawful entry as a significantly adverse factor in a
discretionary analysis is not an asylum bar. This factor is one of many
factors that an adjudicator must consider in the totality of the
circumstances. See 8 CFR 208.13(d), 1208.13(d) (``Factors that fall
short of grounds of mandatory denial of an asylum application may
constitute discretionary considerations.'').
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\62\ Commenters cited E. Bay Sanctuary Covenant v. Trump, 950
F.3d 1242 (9th Cir. 2020), and O.A. v. Trump, 404 F. Supp. 3d 109,
147 (D.D.C. 2019).
---------------------------------------------------------------------------
Further, commenters alleged that the Departments ``appear to seek a
way around the courts' decisions'' by ``injecting'' the previous rule
barring asylum into the NPRM as a discretionary analysis and that the
NPRM failed to ``address how the purpose of INA 208(a) is effectuated
by inclusion of unlawful entry as a significant adverse discretionary
factor.'' The Departments reject the contention that the rule is merely
``injecting'' one rule into another. The rule struck down in East Bay
Sanctuary Covenant and O.A. established a bar to asylum eligibility,
and the courts in those cases held that the rule exceeded the Attorney
General's authority under INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), to
establish additional limitations on asylum eligibility. But both courts
have acknowledged that the Attorney General has broader authority to
deny asylum as a matter of discretion to otherwise eligible applicants
under INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). See E. Bay Sanctuary
Covenant v. Barr, 964 F.3d 832, 849 (9th Cir. 2020) (explaining in the
context of a different eligibility bar that ``the Attorney General's
discretion to deny asylum under
[[Page 80345]]
Sec. 1158(b)(1)(A)'' is broader than ``his discretion to prescribe
criteria for eligibility for asylum'' under Sec. 1158(b)(2)(C)); O.A.,
404 F. Supp. 3d at 151 (``[T]here is a vast difference between
considering how the alien entered the United States as one, among many,
factors in the exercise of a discretionary authority, and a categorical
rule that disqualifies any alien who enters across the southern border
outside a designated port of entry.''). Consistent with those
decisions, this rule simply clarifies that unlawful entry or attempted
unlawful entry is a significant adverse factor in a discretionary
analysis. Further, the Departments point to their explanation at 85 FR
---------------------------------------------------------------------------
at 36283:
the Secretary and Attorney General have not provided general
guidance in agency regulations for factors to be considered when
determining whether an alien merits asylum as a matter of
discretion. Nevertheless, the Departments have issued regulations on
discretionary considerations for other forms of relief, e.g., 8 CFR
212.7(d), 1212.7(d) (discretionary decisions to consent to visa
applications, admission to the United States, or adjustment of
status, for certain criminal aliens), and the Departments believe it
is similarly appropriate to establish criteria for considering
discretionary asylum claims.
The Departments acknowledge that while that explanation does not
specifically reference section 208(b)(1)(A) of the Act, 8 U.S.C.
1158(b)(1)(A), the explanation clearly states that the purpose of this
section of the rule is to establish criteria to guide the exercise of
discretion required in considering asylum claims. As explained in the
NPRM and this final rule, asylum is a discretionary form of relief
under section 208(b)(1)(A) of the Act, 8 U.S.C. 1158(b)(1)(A).
Accordingly, this rule enables efficient and proper exercise of the
discretion required by section 208(b)(1)(A) of the Act, 8 U.S.C.
1158(b)(1)(A).
Although the Departments agree with commenters that expediency is
not the only relevant ``consideration when making a determination that
would dictate the relief available to an asylum seeker,'' it is also
true that ``the public has an interest in relieving burdens on the
asylum system and the efficient conduct of foreign affairs.'' See E.
Bay Sanctuary Covenant, 964 F.3d at 855. By disfavoring (though, not
barring) asylum applicants who unlawfully enter the United States and
by deterring meritless asylum claims, the Departments seek to ensure
that those who need relief most urgently are better able to obtain it.
As stated in the proposed rule, the Departments ``believe that the
inclusion of the proposed factors in the rule will better ensure that
immigration judges and asylum officers properly consider, in all cases,
whether applicants for asylum merit the relief as a matter of
discretion, even if the applicant has otherwise demonstrated
eligibility for asylum.'' 85 FR at 36283. Adjudicators exercise
independent judgment in each case before them, 8 CFR 1003.10(b), and
this rule facilitates efficient adjudication of asylum applications,
consistent with such exercise of independent judgment. Contrary to the
suggestions of commenters, the rule does not codify expediency as the
sole--or even one--factor to consider in determining asylum relief.
Commenters unpersuasively contend that the rule directly conflicts
with Federal circuit case law. The commenters confuse the requirements
for a grant of asylum by misconstruing a finding of eligibility as
sufficient to grant asylum. Asylum eligibility is separate from the
necessary discretionary analysis, as reflected in the statute: ``with
respect to any form of relief that is granted in the exercise of
discretion,'' an alien must establish satisfaction of the eligibility
requirements for asylum and that the alien ``merits a favorable
exercise of discretion.'' INA 240(c)(4)(A), 8 U.S.C. 1229a(c)(4)(A);
see also Cardoza-Fonseca, 480 U.S. at 428 n.5 (explaining that ``a
finding that an alien is a refugee does no more than establish that
`the alien may be granted asylum in the discretion of the Attorney
General' '' (quoting INA 208(a)) (emphases in original)); Matter of A-
B-, 27 I&N Dec. at 345 n.12, (stating that the ``favorable exercise of
discretion is a discrete requirement'' in granting asylum and should
not be disregarded ``solely because an applicant otherwise meets the
burden of proof for asylum eligibility under the INA''), abrogated on
other grounds, Grace II, 965 F.3d at 897-900. The rule does not
predicate asylum eligibility on unlawful entry or attempted unlawful
entry. Instead, the rule makes such factor a consideration in the
discretionary analysis.
In response to commenters' other quoted excerpts from case law, the
Departments considered that responding to unlawful entry or attempted
unlawful entry require expenditure of valuable government resources. 85
FR at 36283. Not all aliens who unlawfully enter or attempt to
unlawfully enter intend to apply for asylum, and apprehension and
processing of these aliens continues to strain resources. Accordingly,
the Departments codify this factor as part of the discretionary
analysis, to be considered in the totality of the circumstances, to
determine whether an applicant warrants a favorable exercise of
discretion.
The Departments disagree with commenters' assertions that the rule,
in practice, will deny relief to ``virtually all asylum cases'' or that
the rule will limit asylum relief to applicants from contiguous nations
or applicants who arrive by air. The Departments reiterate the
independent judgment exercised by adjudicators in applying immigration
law, and this rulemaking does not dictate particular outcomes.
Adjudicators examine the unique factors in each case before them, in
accordance with applicable law and regulations. Accordingly, the
Departments find these assertions to be purely speculative.
The Departments also disagree that the rule particularly burdens
children. As discussed elsewhere in this final rule, adjudicators may
consider whether extraordinary circumstances exist or whether
exceptional and extremely unusual hardships would arise if the
application was denied. In the case of a child's unlawful entry or
attempted unlawful entry, an adjudicator could consider an alien's
juvenile status and other related factors stemming from the alien's
age, as relevant to and presented in the case. See Section II.C.1.3 of
this preamble for further discussion on this point. Nevertheless, the
Departments recognize that aliens under the age of 18 often have no say
in determining their manner of entry into the United States.
Accordingly, the Departments have modified the language in the final
rule to reflect that the unlawful entry of an alien under age 18 would
not necessarily be a significant adverse discretionary factor.\63\
---------------------------------------------------------------------------
\63\ Such entry would remain a significant adverse discretionary
factor for any adults traveling with the minor, however.
---------------------------------------------------------------------------
4.7.2. Failure of an Alien To Apply for Protection From Persecution or
Torture in at Least One Country Outside the Alien's Country of
Citizenship, Nationality, or Last Lawful Habitual Residence Through
Which the Alien Transited Before Entering the United States
Comment: Commenters expressed general opposition to the proposed
rule's requirement that adjudicators consider failure to apply for
asylum in third countries through which applicants traveled to reach
the United States to be a significant adverse factor. Commenters argued
that placing great negative weight on the applicant's route to the
United States is inconsistent with discretionary determinations, which,
[[Page 80346]]
commenters argued, should be based on a consideration of all the
equities.
Commenters asserted that, contrary to the NPRM's reasoning, failure
to apply for asylum protection in a third country is often not evidence
of misuse of the asylum system. Commenters asserted that there are
numerous reasons that applicants would not apply for asylum in such
countries, including lack of knowledge on how to apply and language
barriers. Additionally, commenters cited violence and a fear of
persecution as a reason that applicants may not apply for asylum in
third countries. One commenter noted that the U.S. government has
issued travel advisories urging Americans to reconsider travel plans to
El Salvador, Honduras, Guatemala, and eleven Mexican states because of
violence. Furthermore, the commenter noted that the U.S. government
urges travelers to ``exercise caution'' when travelling to sixteen
other Mexican states, and that the United States has issued its highest
travel warning--``Do Not Travel''--for the remaining five Mexican
states. The commenter asserted that these warnings indicate that the
conditions in some Mexican states are as dangerous as those in Syria
and Iraq, which also have the highest travel warning. Given these
various warnings, the commenter asserted, it is not reasonable to
expect individuals to apply for asylum in Mexico.
Commenters asserted that the NPRM's reasoning failed to adequately
consider the realities of the asylum systems in Mexico, Guatemala,
Honduras, and El Salvador. In the case of Mexico, the commenter argued
that the asylum system there is restrictive, underfunded, and
underdeveloped. Commenters similarly asserted that the asylum systems
in Guatemala, Honduras, and El Salvador are rudimentary.
Commenters argued that the requirement to apply for asylum in a
third country en route to the United States inappropriately advantaged
asylum seekers coming from contiguous countries, as well as those who
have the means to fly non-stop to the United States. With respect to
asylum seekers who reached the United States by air travel, commenters
asserted that the NPRM lacked a rationale as to why asylum seekers who
had even a brief layover in another country would be required to apply
for asylum in that country. Commenters noted that such a requirement is
particularly harmful for those coming from countries where direct
flights to the United States are not possible. Commenters asserted that
this difference in treatment violated the Fifth Amendment of the United
States Constitution. Commenters asserted that the exceptions outlined
in the proposed regulation are identical to language in the
Departments' July 16, 2019, IFR. In considering the legality of the
IFR, commenters stated that the Ninth Circuit Court of Appeals found
the rule to be arbitrary and capricious and inconsistent with the INA.
One commenter asserted that the proposed provision conflicts with
two statutory provisions concerning when asylum seekers must apply for
asylum in another country: Sections 208(a)(2)(A) and 208(b)(2)(A)(vi)
of the Act, 8 U.S.C. 1158(a)(2)(A), (b)(2)(A)(vi). Specifically, the
commenter asserted that the proposed provision is not consistent with
these statutory sections because it would exclude large classes of
individuals from asylum, it does not require adjudicators to consider
the safety of the third countries, and it does not require adjudicators
to consider the fairness of third country asylum procedures.
Response: This factor was promulgated as a way to ensure that
aliens in need of protection apply at the first available opportunity.
As stated in the proposed rule, the Departments believe that there is a
higher likelihood that aliens who fail to apply for protection in a
country through which they transit en route to the United States are
misusing the asylum system. 85 FR at 36283; see also Asylum Eligibility
and Procedural Modifications, 84 FR 33829, 33831 (July 16, 2019).
Because the Departments recognize that this may not always be the case,
the rule provides exceptions for situations in which an alien was
denied protection in the country at issue, the alien was a victim of a
severe form of trafficking in persons, or the relevant country was not
a party to certain humanitarian conventions, as provided in 8 CFR
208.13(d)(1)(ii), 1208.13(d)(1)(ii). In addition, the adjudicator may
consider whether exceptional circumstances exist or whether denial of
asylum would result in exceptional and extremely unusual hardship to
the alien. 85 FR at 36285.
Further, because this factor is race-neutral on its face and
applies equally to all aliens, it does not violate the Fifth
Amendment's due process guarantee. 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. . . . Standing alone,
[disproportionate impact] 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)). This factor was not motivated by discriminatory intent. The
rule and this factor in particular apply equally to all asylum
applicants. To the extent that any one group is disproportionately
affected by the rule, such outcome was not based on discriminatory
intent, but rather on the demographics of the affected population and
the Departments' aim to ensure that asylum protection in the United
States is available and timely granted to applicants who genuinely need
it most. See generally 85 FR at 36283; see also Regents of Univ. of
Cal., 140 S. Ct. at 1915-16 (rejecting the claim that revoking an
immigration policy that primarily benefitted Latinos supported an
inference of invidious discrimination against Latinos, because any
disparate impact could be explained by the demographic fact that
``Latinos make up a large share of the unauthorized alien
population''). The Departments have determined that aliens who do not
apply for protection in a country through which they transit are less
likely to merit relief as a matter of discretion; thus, the Departments
proposed such factor to be considered while also providing the
opportunity for aliens to present evidence to the contrary. See id.
Moreover, this factor is not arbitrary. The rule requires
adjudicators to consider, as part of their discretionary analysis,
whether an alien transited through a country en route to the United
States but did not apply for asylum there. If an alien did not apply
for protection, regardless of whether transit was effectuated by foot,
flight layover, or sea, the alien forwent the immediate opportunity to
apply for protection in the transited country for the future
opportunity to apply for protection in the United States. The
Departments believe this choice is relevant to an adjudicator's
discretionary analysis because it may indicate the urgency or
legitimacy of an applicant's claim. Thus, adjudicators should consider,
as relevant, whether an alien failed to apply for protection in a
country through which the alien transited en route to the United
States, in the totality of the circumstances, to determine whether the
alien merits relief as a matter of discretion. Moreover, nothing in the
rule categorically prohibits an adjudicator from concluding that, under
the circumstances, an applicant's brief layover in transit is less
probative of the urgency of the applicant's claim than a
[[Page 80347]]
longer stay. Nor does anything in the rule categorically prohibit an
adjudicator from concluding that, under the circumstances, an
applicant's layover in transit in a country known for human rights
abuses is less probative of the urgency of the applicant's claim than a
layover in a country with a well-recognized system for providing
humanitarian protection. In any event, promulgating this factor in the
rule ensures that adjudicators at least account for it in the exercise
of discretion, even though its probative value may vary from case to
case.
The Departments also disagree with commenters who claim the
Departments ``merely refer[ ] back to its earlier rulemaking on the
third country transit bar.'' The NPRM's citation to Asylum Eligibility
and Procedural Modifications, 84 FR 33829, 33831 (July 16, 2019), was
meant to clearly reiterate, while avoiding redundancy, the Departments'
continued belief that, generally, aliens who do not apply for
protection in a country through which they transit en route to the
United States are more likely to have a non-meritorious asylum claim.
As evidenced by the clause in the NPRM that states, ``as previously
explained,'' the Departments explained this factor earlier in the
proposed rule. 85 FR at 36282-83. The Departments provided extensive
explanation of the BIA's decision in Matter of Pula in which the BIA
held that ``whether the alien passed through any other countries or
arrived in the United States directly from his country'' was a factor
to consider in determining whether a favorable exercise of discretion
is warranted. 19 I&N Dec. at 473-74. The Departments chose to codify
that factor in the regulations. The Departments disagree with
commenters who alleged that this factor ``ignores'' the fact that
countries through which an alien may transit may be as dangerous as the
country of origin and is based on an incorrect premise that there is a
``real opportunity'' to seek asylum in all countries party to the
Convention. By becoming party to those treaties, the third countries
through which an alien may have travelled are obligated, based on the
treaties they have joined, to provide protection from removal to
individuals who are likely to face persecution on account of a
protected ground or torture. Accordingly, the Departments understand
this factor to be consistent with the provisions of section 208 of the
Act, 8 U.S.C. 1158.
For similar reasons, the Departments find commenters' assertion
that there are numerous reasons that applicants would not apply for
asylum in such countries, including lack of knowledge on how to apply
and language barriers, as well as violence and a fear of persecution,
as unpersuasive. As an initial point, aliens who apply for asylum in
the United States do so despite the possibility of language barriers
and lack of knowledge of application procedures, and commenters did not
explain--and the Departments cannot ascertain--why these barriers would
affect only other countries, but not the United States.
Additionally, the alleged failure to apply in other countries due
to violence or a fear of persecution is based principally on anecdotes
and speculation and is neither borne out by evidence nor distinguished
from similar conditions in the United States. For example, the UNHCR
has documented a notable increase in asylum and refugee claims filed in
Mexico--even during the ongoing COVID-19 pandemic--which strongly
suggests that Mexico is an appropriate option for seeking refuge for
those genuinely fleeing persecution. See, e.g., Summary of Statement by
UNHCR Spokesperson Shabia Mantoo, Despite Pandemic Restrictions, People
Fleeing Violence and Persecution Continue to Seek Asylum in Mexico,
UNHCR (Apr. 28, 2020), https://www.unhcr.org/en-us/news/briefing/2020/4/5ea7dc144/despite-pandemic-restrictions-people-fleeing-violence-persecution-continue.html (``While a number of countries throughout
Latin America and the rest of the world have closed their borders and
restricted movement to contain the spread of coronavirus, Mexico has
continued to register new asylum claims from people fleeing brutal
violence and persecution, helping them find safety.''). Asylum and
refugee claims filed in Mexico increased 33 percent in the first three
months of 2020 compared to the same period in 2019, with nearly 17,800
claims in 2020. Id. Asylum claims filed in Mexico rose by more than 103
percent in 2018 compared to the previous year. UNHCR, Mexico Fact Sheet
(Apr. 2019), https://reporting.unhcr.org/sites/default/files/UNHCR%20Factsheet%20Mexico%20-%20April%202019.pdf. Overall, ``[a]sylum
requests have doubled in Mexico each year since 2015.'' Clare Ribando
Seelke, Cong. Rsch. Serv., IF10215, Mexico's Immigration Control
Efforts 2 (2020), https://fas.org/sgp/crs/row/IF10215.pdf.
Moreover, some private organizations acknowledge that asylum claims
in Mexico have recently ``skyrocket[ed],'' that ``Mexico has adopted a
broader refugee definition than the U.S. and grants a higher percentage
of asylum applications,'' and that ``Mexico may offer better options
for certain refugees who cannot find international protection in the
U.S.,'' including for those ``who are deciding where to seek asylum
[i.e., between Mexico and the United States].'' Asylum Access, Mexican
Asylum System for U.S. Immigration Lawyers FAQ 1, 7 (Nov. 2019),
https://asylumaccess.org/wp-content/uploads/2019/11/Mexican-Asylum-FAQ-for-US-Immigration-Lawyers.pdf. If aliens coming to the United States
through Mexico feared living in Mexico, it would be irrational for them
to seek refuge there in large numbers; yet, that is precisely what the
available data suggests.
Additionally, commenters do not indicate why violence in part of
one country is different from violence existing in a part of the United
States. Just as violence may occur in parts of the United States but
individuals fleeing persecution consider the country ``safe'' and want
to live here, localized episodes of violence in other countries do not
mean the country, as a whole, is unsafe for individuals fleeing
persecution. In other words, the presence of local or regional
violence, particularly criminal violence, exists in all countries, even
those generally considered ``safe,'' but such presence of local or
regional violence does not render those countries too dangerous that
individuals fleeing persecution could not take refuge anywhere in the
country. Cf. Cece, 733 F.3d at 679 (Easterbrook, dissenting) (``Crime
may be rampant in Albania, but it is common in the United States too.
People are forced into prostitution in Chicago. . . . Must Canada grant
asylum to young women who fear prostitution in the United States, or
who dread the risk of violence in or near public-housing projects?'').
For instance, per the United Nations Office on Drugs and Crime Chart on
Victim of Intentional Homicide, the murder rate in Mexico of 29.1/
100,000 in 2018, see United Nations Office on Drugs and Crime, Mexico,
Victims of Intentional Homicide, 1990-2018, https://dataunodc.un.org/content/data/homicide/homicide-rate, was lower than that in American
cities such as St. Louis, Baltimore, Detroit, New Orleans and Baton
Rouge. See, e.g., Missouri, FBI: UCR (2018); Maryland, FBI: UCR (2018);
Michigan, FBI: UCR (2018); Louisiana, FBI: UCR (2018), https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/topic-pages/offenses-known-to-law-enforcement (Table 8). The murder rate in
Baltimore, America's deadliest big city, is twice that of Mexico. Sean
Kennedy, `The Wire' is
[[Page 80348]]
Finished, but Baltimore Still Bleeds, Wall St. J. (Feb. 7, 2020),
https://www.wsj.com/articles/the-wire-is-finished-but-baltimore-still-bleeds-11581119104. In short, although the Departments acknowledge
commenters' concerns, they are supported by little evidence, do not
explain why their concerns do not also apply to the United States, and
are ultimately outweighed by the overall need to ensure appropriate and
consistent consideration of probative discretionary factors that the
rule provides.
Furthermore, this factor does not conflict with sections
208(a)(2)(A) and 208(b)(2)(A)(vi) of the Act, 8 U.S.C. 1158(a)(2)(A),
(b)(2)(A)(vi), as one commenter alleged. Those provisions pose bars to
asylum eligibility, but this factor merely guides adjudicators'
discretion to grant or deny asylum to otherwise eligible applicants.
Generally, the safe third country provision, INA 208(a)(2)(A), 8 U.S.C.
1158(a)(2)(A), bars an alien from applying for asylum if the Attorney
General determines that the alien could be removed to a country in
which the alien's life or freedom would not be threatened and where the
alien has access to a process for determining asylum claims or
equivalent protection. The firm resettlement provision, INA
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(a)(vi), bars asylum eligibility
for an alien who firmly resettled in another country before arriving in
the United States.
In contrast to those two provisions, this factor--regarding whether
an alien failed to apply for protection from persecution or torture in
at least one country outside the alien's country of citizenship,
nationality, or last lawful habitual residence through which the alien
transited before entering the United States--is considered by an
adjudicator in making a discretionary determination on the alien's
asylum application. Whether an application warrants a favorable
exercise of discretion is distinct from whether an alien is barred
altogether from applying for asylum, as is the case with the safe third
country provision, or from establishing eligibility for asylum, as is
the case with the firm resettlement provision. To the extent that the
commenter's concerns about the safety of a third country and
availability of asylum procedures in that third country specifically
refer to the safe third country provision in section 208(a)(2)(A) of
the Act, 8 U.S.C. 1158(a)(2)(A), those are irrelevant to this distinct
factor considered in discretionary determinations. To the extent that
the commenter suggests specifically incorporating those
considerations--the safety of a third country and availability of
asylum procedures in that third country--into this factor, the
Departments reiterate that an adjudicator may consider, as relevant,
extraordinary circumstances and exceptional or extremely unusual
hardship that may result if asylum is denied. See 85 FR at 36285.
Regardless, the Attorney General's discretion to deny asylum to
otherwise eligible applicants is not limited by the safe third country
or firm resettlement bars. East Bay Sanctuary and O.A. both presented
the question whether the eligibility bar there conflicted with the
statute's other eligibility bars, because the Attorney General's
authority to ``by regulation establish additional limitations and
conditions . . . under which an alien shall be ineligible for asylum''
must be ``consistent with this section.'' INA 208(b)(2)(C), 8 U.S.C.
1108(b)(2)(C). Here, by contrast, the Attorney General would be acting
under his authority under INA 208(b)(1)(A), which includes no similar
``consistent with'' requirement. Simply, the Secretary of Homeland
Security or the Attorney General ``may'' deny asylum in their
discretion. Id.; see E. Bay Sanctuary Covenant, 964 F.3d at 849
(``Unlike the broad discretion to deny asylum to aliens who are
eligible for asylum, the discretion to prescribe criteria for
eligibility is constrained by Sec. 1158(b)(2)(C), which allows the
Attorney General to `establish additional limitations and conditions .
. . under which an alien shall be ineligible for asylum' only so long
as those limitations and conditions are `consistent with' Sec.
1158.'').
4.7.3. Use of Fraudulent Documents To Enter the United States
Comment: Commenters expressed several general concerns regarding
the regulatory provisions on fraudulent documents. First, commenters
argued that the provisions would result in the denial of most asylum
applications. Second, commenters argued that it is sometimes impossible
for asylum seekers to obtain valid documents and that in some instances
pursuing such documents could put them in greater danger. Third,
commenters asserted that it is particularly difficult for women to
obtain valid travel documents in some countries because they need to
first obtain the approval of a male relative. Fourth, commenters
asserted that the NPRM lacked a valid rationale as to why those
travelling through multiple countries would be punished under the
proposed rule and those who came directly to the United States from a
contiguous country or a direct flight would be excused. Finally, one
commenter argued that the proposed provisions are ultra vires because
``the law at INA 208 and 209 provide for specific waivers of the use of
[fraudulent documents].''
Commenters argued that the NPRM's assertion that the use of
fraudulent documents makes enforcement of immigration laws difficult
and requires significant resources is not supported by evidence and is
false. One commenter noted that under section 208(d)(5)(A)(i) of the
Act (8 U.S.C. 1158(d)(5)(A)(i)) an individual cannot be granted asylum
until he or she has completed a background check and his or her
identity ``has been checked against all appropriate records or
databases.'' The commenter noted that the statute's requirements are
applicable to every person seeking asylum regardless of whether
fraudulent documents were used. Thus, the commenter argued, making the
use of fraudulent documents a significant adverse factor would not
reduce the amount of resources needed to adjudicate asylum cases.
One commenter argued that the proposed fraudulent document
provisions are contrary to congressional intent. Specifically, the
commenter noted that on May 1, 1996, the Senate debated an immigration
bill that would have summarily deported, among others, asylum seekers
who used false documents to enter the United States. The commenter
noted that Senator Patrick Leahy introduced an amendment to the bill
that would remove the use of ``summary exclusion procedures for asylum
applicants.'' The commenter quoted some of Senator Leahy's remarks in
support of the amendment, in which he noted that people fleeing
persecution will probably get fraudulent passports. The commenter noted
there was bipartisan support of the amendment.
Commenters asserted that Federal courts have recognized that false
documents may be needed to flee persecution. Citing Gulla v. Gonzales,
498 F.3d 911 (9th Cir. 2007), one commenter noted that Mr. Gulla, an
Iraqi asylum seeker, used forged passports to flee government
persecution on account of his religion and that the court concluded
that reasoned use of false documentation in that case supported Mr.
Gulla's asylum claim rather than detracted from it.
One commenter argued that the NPRM's rationale for the fraudulent
document provisions distorted the BIA's reasoning in Matter of Pula.
Specifically, the commenter argued that even though the BIA delineated
a difference between the use of fraudulent
[[Page 80349]]
documents to escape persecution and falsifying a United States passport
to assume the identity of a United States citizen, the BIA noted that
an adjudicator would still be required to consider the totality of the
circumstances in both cases. Accordingly, the commenter argued that the
case does not provide justification for making the use of a fraudulent
document a significantly adverse factor.
Response: As an initial point, commenters failed to explain why an
alien genuinely seeking asylum would need to use false documents to
enter the United States in the first instance, as distinguished from
using false documents only to leave the alien's country of nationality.
An alien need not necessarily have entered the United States to apply
for asylum; rather, an alien ``arriv[ing] in the United States'' may
apply for asylum. INA 208(a)(1), 8 U.S.C. 1158(a)(1). Thus, an alien
may seek asylum at a port of entry without using or attempting to use
any documents whatsoever. Moreover, large numbers of aliens enter the
United States without presenting any documents at all, including those
who subsequently seek asylum after turning themselves in or are
otherwise apprehended by DHS. See INA 212(a)(6)(A), 8 U.S.C.
1182(a)(6)(A) (rendering inadmissible an alien who enters the United
States without being admitted or paroled); see also Perla Trevizo, How
Do You `Secure' the Border When Most Migrants Are Just Turning
Themselves In?, Tuscon.com (Dec. 15, 2018), https://tucson.com/news/state-and-regional/how-do-you-secure-the-border-when-most-migrants-are-just-turning-themselves-in/article_deed8d48-fa50-11e8-837c-0b4b3be5a42a.html (noting that ``large groups'' of aliens simply
``cross illegally to turn themselves in,'' with no mention of any entry
documents, false or otherwise). The use of fraudulent documents
undermines the integrity of the immigration system and is unnecessary
for an alien to apply for asylum. In other words, because neither
fraudulent documents nor even entry into the United States are
requirements to make an asylum application, the use of such documents
to enter or attempt to enter the United States strongly suggests that
the motive of an alien using such documents is to enter the United
States for reasons other than a genuine fear of persecution or a need
for protection. Consequently, the Departments find it reasonable to
consider that factor as a significantly adverse discretionary one for
purposes of adjudicating an asylum application, and the commenters did
not persuasively explain why that should not be the case.
Even if entry documents were a prerequisite to the ability to apply
for asylum, the Departments nevertheless would find that this factor
would deter the use of false documents, which create burdensome
administrative costs in filtering valid from invalid documentation and
dissipate human resources that could be used to ensure that meritorious
claims are addressed efficiently. Those benefits, in the Departments'
view, would also ultimately outweigh any costs associated with the
denial of asylum applications due to the use of such documents.
Further, the Departments disagree that this factor would result in
denial of most applications. Regardless of what documents aliens may
use to depart their countries of nationality, there is no evidence that
most asylum applicants use false documents to enter the United States;
rather, most aliens seeking asylum either appear at a port of entry and
request asylum without seeking to enter with any particular documents
or enter the United States without inspection, i.e., without presenting
any documents at all.
Commenters' concerns are also speculative, and the Departments
reiterate that this factor is one of many factors considered under the
adjudicator's discretionary analysis--not a bar to asylum.
85 FR at 36283 (``[T]he adjudicator should also consider any other
relevant facts and circumstances to determine whether the applicant
merits asylum as a matter of discretion.''). Further, an alien may
introduce relevant evidence of extraordinary circumstances, including
challenges described by the commenters, for the adjudicator to
consider. See 85 FR at 36283. The Departments also emphasize that an
alien's use of fraudulent documents to enter the United States is a
ground that renders the alien inadmissible. INA 212(a)(6)(C), 8 U.S.C.
1182(a)(6)(C). This clear, negative consequence underscores
congressional disapproval of the use of fraudulent documents to enter
the United States.
In the NPRM, the Departments explained why this factor considers
use of fraudulent documents for aliens traveling through more than one
country but not aliens arriving from a contiguous country. 85 FR at
36283 n.35. For aliens arriving from a contiguous country, an alien may
simply be carrying the documents he or she used to depart that country,
particularly in situations in which the exit control for the contiguous
country is located in close physical proximity to the port of entry
into the United States or the embarkation point for a trip by air or
sea to the United States; thus the Departments will not consider this a
significant adverse factor for such aliens. As further explained in the
NPRM, the rule aligns with Lin v. Gonzales, 445 F.3d 127, 133 (2d Cir.
2006), and Matter of Pula, 19 I&N Dec. at 474, cases that draw a
distinction between presentation of a fraudulent document to an
immigration court and the use of a fraudulent document to escape
immediate danger. 85 FR at 36283 n.35. To the extent other BIA cases
reject such a distinction, the rule supersedes conflicting case law.
Accordingly, aliens are not ``punished,'' as commenters alleged, if
they travel through more than one country. Rather, the line drawn in
Lin and Pula supports differential treatment. If an alien arrives
directly (such as by air), there is an innocuous explanation for his
carrying of fraudulent documents: He still has them because he used
them to escape immediate danger. But if an alien travels through more
than one such country, that justification for carrying fraudulent
documents--escaping persecution--becomes far more attenuated. As
explained elsewhere in the NPRM and this final rule, the Departments
believe that if aliens who travel through more than one country,
subject to some exceptions, are escaping persecution, they have an
opportunity to seek protection in any of the countries through which
they transit en route to the United States. If aliens arriving from a
contiguous country are escaping persecution, the first place to seek
protection would be the United States, and so the Departments will not
consider such aliens' use of fraudulent documents in pursuit of
protection as a significant adverse factor.
Contrary to commenters' assertions, section 208 of the Act, 8
U.S.C. 1158, does not provide a waiver for the use of fraudulent
documents to enter the United States, and section 209 of the Act, 8
U.S.C. 1159, only waives a ground of inadmissibility related to the use
of fraudulent documents, INA 212(a)(6)(C)(i), 8 U.S.C.
1182(a)(6)(C)(i), in conjunction with an application for adjustment of
status for an alien who has already been granted asylum. Consequently,
neither provision applies to the rule, which addresses solely
discretionary determinations in connection with an asylum application.
Moreover, the potential availability of a waiver of a ground of
inadmissibility, which is itself discretionary, for an alien
[[Page 80350]]
who has already been granted asylum and is seeking lawful permanent
resident status does not suggest that the basis for the ground of
inadmissibility is not also a relevant discretionary consideration in
the first instance.
Because this factor would discourage use of fraudulent documents
and streamline the discretionary analysis regarding the use of
fraudulent documents, the Departments believe the factor would reduce
the overall time expended to address the issue of fraudulent documents
on a systemwide basis because fewer aliens would use fraudulent
documents and adjudicators would consider their use more consistently.
Although the use of fraudulent documents to enter the United States is
difficult to track in general and the Departments do not track the
number of asylum applicants who present such documents, the Departments
nevertheless expect less time to be expended overall. To the extent
that this provision deters the use of fraudulent documents, the
provision will conserve enforcement resources that may otherwise be
spent ferreting out fraud and will support the overall integrity of the
immigration systems and ensure that benefits are not inappropriately
granted. The Departments find those benefits outweigh the various
concerns raised by commenters.
The Departments follow applicable law and regulations. If the
proposed amendments cited by commenters were not included in the
version of the bill that became law, then the Departments do not follow
or consider legislative history regarding such amendments. See Park `N
Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194 (1985)
(``Statutory construction must begin with the language employed by
Congress and the assumption that the ordinary meaning of that language
accurately expresses the legislative purpose.'').
The Departments again note the NPRM, which explains how the rule
interacts with case law regarding this factor. 85 FR at 36283 n.35.
Further, this rule supersedes previous regulations that case law may
have interpreted in reaching decisions prior to promulgation of the
rule at hand. To the extent that other circuits have disagreed with the
Departments' reasonable interpretation, the Departments' proposed rule
would warrant re-evaluation in appropriate cases under well-established
principles. See Brand X, 545 U.S. at 982.
The rule requires adjudicators to consider this factor, like all
the factors outlined in the NPRM, in light of all relevant factors. See
85 FR at 36283, 36285. In this regard, the rule aligns with the
approach in Matter of Pula, contrary to the commenters' assertions. The
Departments note, however, that the rule also supersedes Matter of Pula
in some regards, as explicitly provided in the NPRM. 85 FR at 36285.
4.7.4. Spent More Than 14 Days in Any One Country
Comment: Commenters expressed general concerns with the proposed
regulation's introduction of a bar that would make any person who spent
more than 14 days in any country en route to the United States
ineligible for asylum. Specifically, commenters asserted the new bar is
cruel and arbitrary and capricious, and that it is designed to make
most aliens who enter from the southern border ineligible for asylum.
Commenters asserted that the NPRM's reasoning as to the necessity
for a 14-day bar is inadequate and that the policy would be contrary to
the concept of firm resettlement. One commenter argued that the NPRM
failed to explain how a 14-day stay in a country equates to an offer of
firm resettlement, and another asserted that the length of stay in a
country is irrelevant to the merits of an LGBTQ asylum seeker's claim.
Additionally, one commenter stated that being given an application to
seek protection in another country does not equate to an offer of firm
resettlement. The same commenter argued the NPRM's use of a single
Federal case to support the proposed provision--Yang v. INS, 79 F.3d
932 (9th Cir. 1996)--is not persuasive. The commenter stated that in
Yang, refugees from Laos who spent 14 years in France with refugee
status were denied asylum in the United States. The commenter asserted
that using this case to support the position that denying asylum
applications for anyone who spent 14 days in another country with no
kind of lawful status is ``irrational.''
Commenters argued that the proposed 14-day bar would punish those
who seek to comply with U.S. policies. Specifically, commenters noted
that under the CBP ``metering'' policy, asylum seekers sometimes are
required to wait more than 14 days (one commenter stated that the wait
could span months) in order to make their asylum claims. Commenters
also asserted that asylum seekers subject to MPP are often required to
spend more than 14 days (up to weeks or months) in Mexico. Commenters
expressed concern that asylum seekers subject to metering and MPP would
be barred from asylum under the proposed rule. One commenter similarly
argued that the United States has used COVID-19 as a ``pretext'' to
close the Mexican border to all asylum seekers. The commenter implied
that these policies could likewise cause an individual to be in a third
country for longer than 14 days.
Commenters asserted that many asylum seekers travel to the United
States by foot, bus, or train, which, commenters assert, often takes
longer than 14 days. Commenters asserted that the length of an asylum
seeker's journey is often extended due to the need to avoid detection
from government officials and non-government actors trying to return
the asylum seeker back to the country from which the individual is
fleeing. Additionally, commenters noted that there could be other
reasons that an asylum seeker's journey could be extended beyond 14
days, including robbery, kidnap, or rape. One commenter asserted that
those who travel through southern Mexico face additional hurdles,
asserting that the Mexican government refuses to issue travel documents
and that the government threatens to fine transportation companies that
sell tickets to those without travel documents.
One commenter expressed concern that the proposed regulation did
not include an exception for children and other discrete populations,
who, the commenter stated, might not have control over the amount of
time spent in third countries en route to the United States.
Response: This factor is not a bar to asylum, as commenters
alleged. This factor is considered, along with all the other factors
outlined in the rule, as part of an adjudicator's discretionary
analysis. Further, the NPRM clearly recognized that ``individual
circumstances of an alien's presence in a third country or transit to
the United States may not necessarily warrant adverse discretionary
consideration in all instances,'' and subsequently provided various
exceptions. 85 FR at 36284.
Consideration of this factor is not cruel or arbitrary and
capricious. This factor is considered adverse only when an alien spends
more than 14 days in a country that permits applications for asylum,
refugee status, or similar protections. The Departments believe that an
alien should apply for protection at the first available opportunity,
but the Departments would not hold an alien responsible for failure to
apply for protection that does not, in fact, exist. Asylum is a form of
relief intended for aliens who legitimately need urgent protection. If
any alien stays in one country for more than 14 days and that
[[Page 80351]]
country permits applications for various forms of protection but the
alien fails to apply for such protections, then the Departments
consider that failure to be indicative of a lack of urgency on the
alien's part. This factor thus screens for urgency, an important
consideration in light of the growing number of asylum applications the
Departments receive: The Departments have seen record numbers of asylum
applications, along with record numbers of asylum denials, in the past
decade. For comparison, in FY 2008, 42,836 asylum applications were
filed while, in FY 2019, 213,798 asylum applications were filed. See
EOIR, Adjudication Statistics: Total Asylum Applications (Oct. 13,
2020), https://www.justice.gov/eoir/page/file/1106366/download. These
record numbers have slowed the adjudication process for all asylum
seekers, including those who urgently need protection. Thus, the
Departments expect that considering this factor will assist the
efficient adjudication of asylum claims.
The NPRM does not equate either a 14-day stay in one country or the
offer to seek protection, on their own, as firm resettlement, contrary
to commenters' assertions. For amendments to the firm resettlement bar,
commenters should refer to Section II.C.7 of the preamble to the NPRM,
85 FR at 36285-86, and Section II.C.4.8 of the preamble to this final
rule, revised at 8 CFR 208.15, 1208.15.
Contrary to commenters' allegations, the proposed treatment of an
alien who spends more than 14 days in a country en route to the United
States as a significant adverse factor does not conflict with firm
resettlement. First, an alien found to have firmly resettled is barred
from asylum relief. INA 208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi).
The provision at hand, however, is not a mandatory bar but a
discretionary factor to be considered by the adjudicator, subject to
exceptions in cases where the alien's application for protection in the
third country was denied, the alien is a victim of a severe form of
human trafficking defined in 8 CFR 214.11, or the alien was present in
or transited through only countries that were not parties to the
Refugee Convention, Refugee Protocol, or CAT at the relevant time. 8
CFR 208.13(d)(2)(i)(A)(1)-(3), (d)(2)(i)(B)(1)-(3); see also 85 FR at
36824. Second, as proposed by the NPRM, the firm resettlement bar would
apply ``when the evidence of record indicates'' that it would apply. 85
FR at 36286. Then, the alien bears the burden of proof to demonstrate
that the bar does not apply, consistent with 8 CFR 1240.8(d). See id.
Accordingly, the discretionary factor of whether an alien spent more
than 14 days in any one country that provides applications for refugee,
asylee, or other protections prior to entering or arriving in the
United States is different from but related to the firm resettlement
bar: If an alien successfully demonstrates that the firm resettlement
bar does not apply, then an adjudicator would consider that factor as
part of a discretionary analysis regarding the asylum application.
The Departments disagree that the reference to Yang, 79 F.3d at
935-39, is irrational. That case clearly demonstrates why the
Departments are promulgating this factor for consideration. As stated
in the NPRM, that case ``uph[eld] a discretionary firm resettlement
bar, and reject[ed] the premise that such evaluation is arbitrary and
capricious or that it prevents adjudicators from exercising
discretion.'' 85 FR at 36284 (citing Yang, 79 F.3d at 935-39). Such
reasoning is relevant to all cases in which this factor is considered,
whether the alien spent 14 days or 14 years in another country.
Further, contrary to the commenters' assertion, even if the alien spent
14 days or more in another country, this factor is not a bar to asylum;
rather, it is considered in light of all other relevant factors and
various exceptions. See id.
For aliens subject to MPP, those aliens who have entered the United
States and were processed under MPP are no longer en route to the
United States and have already applied for admission to the United
States, whereas, this factor considers whether an alien stayed for more
than 14 days in one country ``[i]mmediately prior to his arrival in the
United States or en route to the United States.'' 8 CFR
208.13(d)(2)(i)(A), 1208.13(d)(2)(i)(A). If an alien claims that he was
subject to metering and waited more than 14 days in Mexico, he or she
may introduce such evidence as an extraordinary circumstance. Moreover,
such aliens may apply for protection in Mexico; if that application is
denied, then the factor would not apply. In addition, the Departments
reject any contention that COVID-19 has been used as a pretext to close
the southern border. The government has taken steps at the Canadian and
Mexican border to curb the introduction and spread of the virus, which
continues to affect the United States and the entire world. See DHS,
Fact Sheet: DHS Measures on the Border to Limit the Further Spread of
Coronavirus (updated Oct. 22, 2020), https://www.dhs.gov/news/2020/06/16/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus;
Control of Communicable Diseases; Foreign Quarantine: Suspension of
Introduction of Persons Into United States From Designated Foreign
Countries or Places for Public Health Purposes, 85 FR 16559 (Mar. 24,
2020); Security Bars and Processing, 85 FR 41201 (July 9, 2020)
(proposed rule).
For discrete populations, if circumstances exist that extend an
alien's stay in one country to surpass 14 days, an adjudicator will
consider such circumstances to determine whether they constitute
extraordinary circumstances. Further, an adjudicator will evaluate
whether such alien falls into one of the three exceptions to this
factor.
4.7.5. Transits Through More Than One Country Between His Country of
Citizenship, Nationality, or Last Habitual Residence and the United
States
Comment: Commenters asserted that the proposed provision pertaining
to transit through more than one country en route to the United States
is arbitrary and capricious and contrary to congressional intent. They
stated that the rule would inappropriately advantage asylum seekers
coming from Mexico and Canada. Commenters similarly asserted that the
proposed rule would advantage those coming from countries where direct
flights to the United States are available and those who could afford
to purchase tickets on such flights. They asserted that there was no
rationale as to why asylum seekers travelling by air with one or more
layovers in another country should be treated differently from those
who took a direct flight. And they further expressed concern that the
proposed factor would be particularly onerous on women and LGBTQ asylum
seekers.
Commenters averred that the proposed factor of transit through more
than one country conflicts with Federal court precedent. Specifically,
commenters noted that a Federal district court invalidated a prior
regulation concerning a third country transit ban. Commenters expressed
concern that the Departments are trying to implement the ban a second
time by making it a factor in discretionary determinations and asserted
that the proposed provision would likewise be struck down by the
courts.
Commenters expressed concern with two of the NPRM's proposed
exceptions to the proposed third country transit factor. First, one
commenter contended that exempting travel through countries that are
not party to the 1951 Convention relating to the Status of Refugees,
the 1967 Protocol relating to
[[Page 80352]]
the Status of Refugees, or the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment is overly narrow.
Specifically, the commenter argued that since 146 countries are party
to the 1951 convention and 147 countries are party to the Protocol, the
exception would be inapplicable to many asylum seekers' journeys.
Second, commenters expressed concern that the proposed exception of
applying for asylum in countries visited en route to the United States
is not reasonable. Commenters asserted that the asylum systems of many
nations through which asylum seekers commonly travel (such as
Guatemala, Honduras, and El Salvador) are not well developed and that
the countries are sometimes just as dangerous as the ones from which
they are fleeing.
Response: The Departments disagree that this factor is arbitrary
and capricious or contrary to congressional intent. Although not a bar,
this discretionary factor is consistent with case law regarding firm
resettlement and safe third countries. See 85 FR at 36284. Further,
taken together with the exceptions, the factor is consistent with
section 208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A).
Similar to the aforementioned factors that consider whether an
alien stayed in one country for more than 14 days and whether an alien
failed to seek protection in a country through which the alien
transited en route to the United States, this factor aims to ensure
that asylum is available for those who have an urgent need for
protection. The Departments generally believe that aliens with
legitimate asylum claims would not forego the opportunity to seek
protection in countries through which they traveled if they had an
urgent need. However, the Departments acknowledge that circumstances
may exist in which an alien did, in fact, travel through more than one
country and has an urgent need for asylum; accordingly, the Departments
outlined three exceptions to this factor, see 85 FR at 36284; 8 CFR
208.13(d)(2)(i)(A)(1)-(3), (B)(1)-(3), 1208.13(d)(2)(i)(A)(1)-(3),
(B)(1)-(3), in addition to the general consideration of extraordinary
circumstances or exceptional and extremely unusual hardship that may
result if the application is denied. See 85 FR at 36283-84. For these
reasons, the Departments did not promulgate this factor in an arbitrary
and capricious manner.
Relatedly, this factor does not improperly advantage asylum seekers
from Canada, Mexico, or countries with direct flights to the United
States. As background, asylum and refugee provisions were incorporated
into U.S. law based on the United States' international obligations, in
part, from the 1951 Convention relating to the Status of Refugees and
1967 Protocol. Signatories to those agreements comprise an
``international regime of refugee protection.'' UNHCR, Implementation
of the 1951 Convention and the 1967 Protocol Relating to the Status of
Refugees: II. Background, ] 3, EC/SCP/54 (July 7, 1989), https://www.unhcr.org/en-us/excom/scip/3ae68cbe4/implementation-1951-convention-1967-protocol-relating-status-refugees.html. To that end,
the Departments believe this system operates to ensure aliens may apply
for protection as soon as possible, not to ensure that aliens receive
protection specifically from the United States. Congress has authorized
the Departments to bar an alien from applying for asylum in the United
States if the alien may be removed to a third country that affords a
full and fair process for determining asylum claims or equivalent
temporary protections, pursuant to a bilateral or multilateral
agreement. INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). The United States
shares the burden of processing asylum claims with other countries
pursuant to various agreements. See, e.g., Agreement Between the
Government of Canada and the Government of the United States of America
for Cooperation in the Examination of Refugee Status Claims from
Nationals of Third Countries, Dec. 5, 2002, https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/final-text.html; DHS, Fact Sheet: DHS Agreements with
Guatemala, Honduras, and El Salvador, https://www.dhs.gov/sites/default/files/publications/19_1028_opa_factsheet-northern-central-america-agreements_v2.pdf. Thus, asylum seekers from countries in
closer proximity to the United States or with direct flights to the
United States are not ``advantaged,'' and asylum seekers from countries
that are farther away from the United States or without direct flights
to the United States are not ``punished.'' If anything, aliens from
countries farther away may have more opportunities to seek protection
than those whose closest--or potentially only--option is the United
States. In an ``international regime of refugee protection,'' it makes
sense that aliens closer to the United States may obtain asylum more
easily in the United States, just as aliens closer to other countries
may obtain asylum more easily in those countries. Including this factor
will encourage aliens to seek asylum in countries that are closest to
them and encourage all treaty signatories to do their fair share in
providing safe harbor for refugees.
For discussion of this rule's effect on women and LGBTQ asylum
seekers, see Section II.C.1.3 of this preamble. The Departments note
here, however, that the rule applies to all asylum seekers regardless
of gender or sexual orientation.
Moreover, this factor is not an eligibility bar for asylum; it is
merely one factor to be considered as relevant, along with various
other factors outlined in the rule. The previous rulemaking cited by
commenters, Asylum Eligibility and Procedural Modifications, 84 FR
33829 (July 16, 2019), barred asylum relief to aliens who failed to
apply for protection in a third country through which they traveled en
route to the United States. While that rule encompasses similar
considerations, it is fundamentally different because the 2019 rule
constituted a mandatory bar to asylum. This rule considers this factor
as part of an adjudicator's discretionary analysis. Adverse judicial
treatment of the 2019 rule does not directly apply to this rulemaking,
which the Departments propose to issue under a different statutory
authority. See E. Bay Sanctuary Covenant, 964 F.3d at 849
(distinguishing ``the broad discretion to deny asylum to aliens who are
eligible for asylum'' from the narrower ``discretion to prescribe
criteria for eligibility'').
The Departments disagree with commenters that the exception for
aliens who were present in or transited through countries that were, at
the relevant time, not parties to the Refugee Convention, Refugee
Protocol, or CAT is too narrow. That exception is fashioned to ensure
that aliens have an opportunity to apply for protection--whether that
be in the United States or in a country through which they transit. If
a country does not offer such protection, then an alien would not be
held to that standard and could avail themselves of the third
exception. Regarding comments that the exceptions to this factor are
insufficient due to danger in and underdevelopment of most countries
through which aliens travel en route to the United States, the
Departments note that, by becoming party to those treaties, the third
countries through which an alien may have transited are obligated by
treaty to provide protection from removal to individuals who are likely
to face
[[Page 80353]]
persecution on account of a protected ground or torture. See also
Section III.C.4.7.2 of this preamble, supra (discussing the
availability of protection in countries outside the United States
through which an alien may transit). Accordingly, the Departments
believe the rule is consistent with section 208 of the Act (8 U.S.C.
1158). The Departments note that regardless of whether an alien claims
any of the exceptions, an alien may still assert that denial of their
asylum application would result in extraordinary circumstances or
produce exceptional and extremely unusual hardship.
4.7.6. Subject to Sec. 1208.13(c) But for the Reversal, Vacatur,
Expungement, or Modification of a Conviction or Sentence
Comment: Commenters expressed general concerns with the provision
of the proposed regulation relating to reversed or vacated criminal
convictions, asserting that it would lead to many asylum applications
being inappropriately denied.
One commenter asserted that the proposed regulation would
inappropriately create a categorical approach to considering vacated
convictions in discretionary determinations. The commenter asserted
that adjudicators should consider vacated convictions on a case-by-case
basis and argued that a vacated conviction could provide positive
equities that should be considered.
Commenters asserted that the proposed regulation is inconsistent
with due process. Specifically, one commenter asserted that the
proposed regulation would bar from asylum relief individuals who had
criminal sentences that were vacated, reversed, expunged, or modified
unless there was an express finding that the person is not guilty. The
commenter asserted that there could be instances where a prosecutor
decides to decline to pursue a case further after learning of an
underlying error in the criminal proceedings without first making a
determination as to the defendant's innocence or guilt. The commenter
asserted that the proposed regulation could cause some individuals in
this position with otherwise meritorious claims to be barred from
asylum. The commenter cited Nelson v. Colorado, 137 S. Ct. 1249, 1255-
56 (2017), and argued that such an outcome would violate due process
principles.
One commenter expressed concern that the proposed regulation is
inconsistent with the INA and the BIA decision, Matter of Devison, 22
I&N Dec. 1362 (BIA 2000). The commenter asserted that the Act and
precedent establish that juvenile charges and convictions are not
criminal convictions and thus should not be considered under the
proposed regulation. Similarly, the commenter cited research suggesting
that a child's comprehension of the consequences for engaging in
criminal activity varies based on age. Accordingly, the commenter
asserted, individuals should not be subjected to excessive punishments
for actions that they took when they were young.
Response: As an initial point, the Departments note that this
provision is fully consistent with long-standing case law allowing
adjudicators to appropriately consider as an adverse discretionary
factor ``criminal conduct which has not culminated in a final
conviction for purposes of the Act.'' Matter of Thomas, 21 I&N Dec. 20,
23-24 (BIA 1995) (collecting cases); cf. Villanueva-Franco v. INS, 802
F.2d 327, 329-30 (9th Cir. 1986) (finding that the Board could consider
alien's extensive criminal record, which included an expunged felony
conviction for assaulting a police officer, in weighing whether
voluntary departure was merited as a matter of discretion); Parcham v.
INS, 769 F.2d 1001, 1005 (4th Cir. 1985) (``Evidence of an alien's
conduct, without a conviction, may be considered in denying the
discretionary relief of voluntary departure.''); Matter of Seda, 17 I&N
Dec. 550, 554 (BIA 1980) (noting that ``a plea of guilty [that] results
in something less than a conviction'' is ``a significant adverse factor
to be considered in whether a favorable exercise of discretion is
warranted'' for voluntary departure), overruled on other grounds by
Matter of Ozkok, 19 I&N Dec. 546, 552 (BIA 1988). Commenters did not
persuasively explain why the Departments should abandon this long-
standing principle in considering all conduct in making a discretionary
determination, especially conduct that initially led to a criminal
conviction.
Additionally, commenters' concerns that this factor will result in
improper denials of asylum applications are speculative. This factor is
not a bar to asylum. Compare Procedures for Asylum and Bars to Asylum
Eligibility, 84 FR 69640, 69654-56 (Dec. 19, 2019) (proposing
additional bars to asylum eligibility based on criminal convictions and
clarifying when an order vacating or modifying a conviction or sentence
will preclude the application of the proposed bars). Considered
relative to all the other factors proposed in NPRM, outcomes will vary
on a case-by-case basis, given consideration of extraordinary
circumstances or exceptional and unusual hardship resulting from a
denial of asylum. 85 FR at 36283.
The Departments disagree that this factor creates a ``categorical
approach,'' as commenters alleged. A categorical approach often applies
when determining whether a particular conviction qualifies as an
offense that would render the alien ineligible for discretionary
relief. 8 CFR 208.13(c), 1208.13(c); see Kawashima v. Holder, 565 U.S.
478, 483 (2012). This factor merely counsels adjudicators that if a
conviction qualifies, it should be considered an adverse factor
notwithstanding any subsequent vacatur or reversal of that sentence
(unless the alien was found not guilty). But this rule takes no
position on what approach should apply--categorical or circumstance-
specific--in determining whether a conviction would so qualify.
Moreover, this factor does not affect existing case law allowing the
consideration of criminal activity as a discretionary factor, even when
that activity has not resulted in a conviction. The rule, as proposed
and in this final iteration, however, considers this factor as relevant
to each case, along with consideration of extraordinary circumstances
or exceptional and extremely unusual hardship that may befall an alien
if asylum is denied. In this way, the rule is consistent with the
commenter's suggestion that criminal activity must be considered on a
case-by-case basis.
The rule does not violate due process. Consistent with long-
standing case law, the rule requires adjudicators to consider, as part
of the discretionary analysis, convictions that remain valid for
immigration purposes. See 85 FR at 36284. Due process requires that an
alien receive a full and fair hearing that provides a meaningful
opportunity to be heard. See Kerciku v. INS, 314 F.3d 913, 917 (7th
Cir. 2003). This rule does not violate due process because it does not
deprive aliens of their right to a hearing before an immigration judge,
8 CFR 1240.10, or their right to appeal to the BIA, 8 CFR 1003.1(b).
Moreover, because asylum is a discretionary form of relief, aliens
have no constitutionally protected interest in a grant of asylum. See
Nativi-Gomez v. Ashcroft, 344 F.3d 805, 807-09 (8th Cir. 2003)
(explaining that an alien has no expectation that discretionary relief
will be granted and, consequently, no protected liberty interest in
such relief (citing Ashki v. INS, 233 F.3d 913, 921 (6th Cir. 2000)).
Accordingly, this rule presents distinct issues from Nelson, 137 S. Ct.
at 1255-56, cited by a commenter. Nelson holds only that a state may
not continue to deprive a
[[Page 80354]]
person of his property--there, thousands of dollars in costs, fees, and
restitution--after his conviction has been reversed or vacated. The
case applied the balancing test in Mathews v. Eldridge, 424 U.S. 319
(1976), which balances the private interest affected, the risk of
erroneous deprivation of such interest through procedures used, and the
governmental interest at stake. Because, unlike the monetary exactions
at issue in Nelson, the rule affects no constitutionally protected
liberty or property interest, that case and the Mathews balancing test
do not apply.
The Departments will continue to apply Matter of Devison, 22 I&N
Dec. 1362 (BIA 2000), as relevant; however, the commenter
misunderstands the holding in that case. In that case, as referenced by
a commenter, the BIA held that an adjudication as a ``youthful
offender'' constituted a determination of juvenile delinquency rather
than a conviction under section 101(a)(48)(A) of the Act, 8 U.S.C.
1101(a)(48)(A). Matter of Devison, 22 I&N Dec. at 1366. ``In its
reasoning, the Board drew a critical distinction between a finding of
delinquency, which involves `status' rather than guilt or innocence,
and deferred adjudication or expungement. Deferred adjudications
constitute convictions under the INA while findings of delinquency do
not.'' Uritsky v. Gonzales, 399 F.3d 728, 730 (6th Cir. 2005)
(describing the BIA's holding in Matter of Devison) (internal citation
omitted). Accordingly, juvenile adjudications of delinquency will
continue to be evaluated in accordance with applicable statutes and
regulations. But, because Matter of Devison does not hold that juvenile
convictions cannot qualify as criminal convictions under the Act, the
Departments decline to apply it as suggested by the commenter. The rule
does not change or reinterpret the definition or disturb case law
regarding criminal convictions; in fact, the rule codifies long-
standing case law through promulgation of this factor. See 85 FR at
36284. To the extent commenters expressed disagreement with the
definition of ``conviction'' under the Act, that issue is outside the
scope of this rulemaking.
Finally, to the extent commenters queried whether particular types
of cases with specific facts would necessarily be denied, the
Departments find such queries speculative or hypothetical. Moreover,
the Departments do not generally provide advisory opinions on asylum
applications, especially in a rulemaking. Rather, the Departments
expect that their adjudicators will address each case based on its own
particular facts and the applicable law.
4.7.7. More Than One Year of Unlawful Presence in the United States
Prior To Filing an Application for Asylum
Comment: Commenters generally expressed concern that consideration
of unlawful presence in discretionary determinations would lead to the
denial of most asylum applications. One commenter expressed concern
that the proposed provision fails to account for practical realities
such as official ports of entry being ``effectively closed'' to asylum
seekers for years and that it could take more than a year to recover
from the trauma that led an individual to flee his or her country.
Commenters asserted that inclusion of the proposed unlawful
presence factor in discretionary determination is ultra vires.
Specifically, commenters noted that section 208(a)(2)(d) of the Act (8
U.S.C. 1158(a)(2)(d)) provides two instances in which an asylum
application can be filed outside of the one-year deadline: (1) Changed
circumstances that affect eligibility for asylum, and (2) extraordinary
circumstances relating to the delay of filing the application within
one year. Commenters asserted that the proposed regulation would
frustrate this statutory framework because a person who filed more than
one year after his or her last entry into the United States but meets
one of the above-identified exceptions could still see their
application denied under the proposed rule as a matter of discretion.
Commenters also noted that there could be instances where the
exceptions would not be applicable until after the one-year deadline
has expired. Commenters stated that deadline exceptions are especially
important for LGBTQ asylum seekers. Commenters stated that the process
to understanding one's identity as an LGBTQ individual can take more
than one year and requires safety, security, and a support system that
is often not available during flight from their home countries.
Similarly, commenters asserted that it could take over a year to detect
an HIV infection because of the need for ``culturally competent and
clinically appropriate'' medical care that is often not available to
asylum seekers outside of the United States.
Commenters argued that the proposed regulation conflicts with
congressional intent. One commenter detailed the legislative history
surrounding the one-year filing deadline. Specifically, the commenter
noted that the Senate version of the bill in which the deadline was
debated raised the deadline from 30 days to one year and that an
amendment to the House version changed the wording of one of the
exceptions from ``changed country conditions'' to ``personal
circumstances'' in order to broaden the exception for applications that
would be accepted after the statutory deadline. The commenter also
highlighted a floor speech that the commenter argued evidenced
congressional intent to create broad exceptions to the one-year
deadline in order to reduce the chance of arbitrary denials.
One commenter argued that the proposed regulation conflicts with
agency policy. Specifically, the commenter argued that in Matter of Y-
C-, 23 I&N Dec. 286, 287 (BIA 2002), the BIA stated that a failure to
file within the one-year deadline does not result in an absolute bar to
filing an asylum application. The commenter also asserted that the
proposed regulation is in conflict with 8 CFR 208.4(a)(4)-(5) and 8 CFR
1208(a)(4)-(5), which, the commenter asserted, provide broad
definitions for the changed and extraordinary circumstances exceptions.
The commenter similarly asserted that the proposed regulation is in
conflict with 8 CFR 208.4(a)(2)(B) and 8 CFR 1208.4(a)(2)(B), which
require applicants to establish the exceptions ``to the satisfaction''
of the adjudicator. The commenter noted that USCIS guidance states the
standard is one of ``reasonableness,'' which, the commenter asserted,
is lower than that of ``clear and convincing evidence.'' The commenter
asserted that USCIS's articulation of the standard evidences agency
acknowledgement of congressional intent to have the exceptions be
broadly available.
One commenter asserted that the proposed regulation is inconsistent
with the United States' obligations under the 1967 Protocol.
Specifically, the commenter asserted that the UNHCR Executive Committee
opposed the one-year filing deadline when it was under consideration
because it was concerned with the impact it would have on the ability
of the United States to offer protection to those fleeing persecution.
The commenter similarly asserted that President Clinton opposed the
one-year filing deadline out of a concern for it being inconsistent
with international treaty obligations.
Response: This factor, like the other factors, is not a bar to
asylum. The Departments proposed this factor as one of many that an
adjudicator must consider when determining whether an asylum
application warrants a favorable exercise of discretion. 85 FR at
36283. Commenters' concerns that consideration of this factor would
result
[[Page 80355]]
in the denial of most asylum applications are speculative, untethered
to the inherent case-by-case nature of asylum adjudications, and based
on the erroneous underlying premise that this factor functions as an
eligibility bar.
Moreover, this factor would, of its own force, result in the denial
of only a small number, if any, of asylum claims. For aliens who
entered the United States unlawfully and who accrue at least one year
of unlawful presence, the statutory one-year bar in INA 208(a)(2)(B), 8
U.S.C. 1158(a)(2)(B), would likely apply independently, regardless of
this provision. And aliens who arrive in the United States lawfully and
maintain lawful status do not accrue unlawful presence and, thus, would
not be subject to this provision. INA 212(a)(9)(B)(ii), 8 U.S.C.
1182(a)(9)(B)(ii). Even if such aliens fell out of status, their
previous status may demonstrate extraordinary circumstances, 8 CFR
208.4(a)(5)(iv), 1208.4(a)(5)(iv), which would excuse the statutory
one-year filing deadline for a ``reasonable period,'' and that
``reasonable period'' is likely to be less than the one year of
unlawful presence required to trigger this provision. See Asylum
Procedures, 65 FR 76121, 76123-24 (Dec. 6, 2000) (``Generally, the
Department expects an asylum-seeker to apply as soon as possible after
expiration of his or her valid status, and failure to do so will result
in rejection of the asylum application. Clearly, waiting six months or
longer after expiration or termination of status would not be
considered reasonable.''). Commenters' concerns also do not account for
the exceptions to the accrual of unlawful presence, INA
212(a)(9)(B)(iii), 8 U.S.C. 1182(a)(9)(B)(iii), or for situations in
which the Attorney General or Secretary may grant an asylum application
notwithstanding this factor. In short, commenters' concerns that this
provision will result in the denial of most asylum application is
wholly unfounded.
This factor is consistent with the Act. The rule preserves
consideration of the two statutory provisions, cited by commenters, in
which aliens may file an asylum application outside of the one-year
deadline--changed circumstances and extraordinary circumstances. See 85
FR at 36285. Further, the rule provides consideration of whether
exceptional and extremely unusual hardship may befall an alien if
asylum was denied. For the discrete populations referenced by the
commenters who file outside of the one-year deadline, adjudicators may
consider those circumstances in accordance with the rule.\64\
Accordingly, the rule does not frustrate the statutory framework.
---------------------------------------------------------------------------
\64\ See supra Section II.C.1.3 for further discussion on
vulnerable populations.
---------------------------------------------------------------------------
The Departments disagree that the rule conflicts with congressional
intent and agency policy. First, the Departments note that legislative
history is secondary to the text of the statute itself. See Park `N
Fly, Inc., 469 U.S. at 194 (``Statutory construction must begin with
the language employed by Congress and the assumption that the ordinary
meaning of that language accurately expresses the legislative
purpose.''). The Supreme Court has explained the difficulty in
examining legislative history because, oftentimes, both support and
opposition may be found, thereby ``creat[ing] more confusion than
clarity.'' Lamie v. U.S. Trustee, 540 U.S. 526, 539 (2004); see also
Milner v. Dep't of Navy, 562 U.S. 562, 572 (2011) (``We will not take
the opposite tack of allowing ambiguous legislative history to muddy
clear statutory language.''). The Departments read the plain language
of the statute conferring discretionary authority to the Attorney
General to adjudicate asylum applications in promulgating this section
of the rule, which guides the exercise of such discretion through
consideration of various factors. Accordingly, in regard to this
particular regulatory provision, the Departments rely on the text of
the statute rather than the legislative history.
Second, the rule does not conflict with agency policy. This factor,
as previously explained, does not function as an absolute bar to
asylum; therefore, it does not conflict with case law holding that
extraordinary circumstances may excuse untimely filing. Moreover, this
factor does not conflict with current regulations, as alleged by a
commenter. The rule does not change the definitions for changed
circumstances or extraordinary circumstances in 8 CFR 208.4(a)(4)-(5),
1208.4(a)(4)-(5), and the rule repeatedly stated that the adjudicator
will consider this factor, along with all of the factors, as part of
the discretionary analysis. Thus, it does not offend 8 CFR
208.4(a)(2)(B), 1208.4(a)(2)(B).
In regard to one commenter's concern that the rule's ``clear and
convincing evidence'' standard would displace USCIS's current
``reasonableness standard'' for excusing a late-filed application, the
commenter conflates the burden for showing extraordinary circumstances
excusing the general one-year filing deadline with the burden for
showing exceptional and extremely unusual hardship warranting an
exercise of discretion by the Secretary or Attorney General. Compare 8
CFR 208.4(a)(5), 1208.4(a)(5) (``The burden of proof is on the
applicant to establish to the satisfaction of the asylum officer, the
immigration judge, or the Board of Immigration Appeals . . . that the
delay was reasonable under the circumstances''), with 8 CFR
208.13(d)(2)(ii), 1208.13(d)(2)(ii) (Secretary or Attorney General may
favorably exercise discretion where one or more adverse discretionary
factors are present in ``cases in which an alien, by clear and
convincing evidence, demonstrates that the denial of the application
for asylum would result in exceptional and extremely unusual hardship
to the alien''). The two standards do not conflict because they apply
in different contexts and serve different purposes.\65\ The ``to the
satisfaction of the asylum officer'' standard reflects the statutory
requirement that an alien must demonstrate extraordinary circumstances
``to the satisfaction of the Attorney General'' to excuse a late-filed
asylum application. INA 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D). It
reflects a showing to be made by the alien in order to receive initial
consideration of the asylum application, irrespective of its merits.
The ``clear and convincing evidence'' standard reflects the showing
necessary to warrant the Secretary's or Attorney General's favorable
exercise of discretion when any significantly adverse factor--whether
an unpaid tax obligation, or the denial of two previous applications--
is present. This standard is consistent with prior standards set for
the application of that discretion to immigration benefits. See 8 CFR
212.7(d), 1212.7(d). It represents a concluding consideration to
determine whether a grant of asylum is ultimately appropriate and goes
directly to the merits of the asylum application. The two standards
therefore do not conflict.
---------------------------------------------------------------------------
\65\ For example, an alien may establish ineffective assistance
of counsel as an extraordinary circumstance to excuse a failure to
meet the one-year asylum application filing deadline. 8 CFR
208.4(a)(5)(iii), 1208.4(a)(5)(iii). That showing, however, simply
allows the application to be filed and says little about whether the
application should ultimately be granted as a matter of discretion,
particularly if there are unrelated adverse factors to be
considered, such as unpaid tax obligations. 8 CFR
208.13(d)(2)(i)(E)(2), 1208.13(d)(2)(i)(E)(2).
---------------------------------------------------------------------------
The rule does not circumvent the United States' obligations under
the 1967 Protocol. In accordance with its non-refoulement obligations
under the 1967 Protocol, the United States continues to offer statutory
withholding of removal and protection under the
[[Page 80356]]
CAT regulations.\66\ The Departments also find commenters' assertions
unpersuasive that the UNHCR Executive Committee and former-President
Clinton opposed the one-year deadline. As an initial matter, concerns
regarding solely the one-year deadline are outside the scope of this
regulation because the rule does not amend the deadline, nor could it.
And, in any event, the Departments are not aware that any court has
endorsed the UNHCR Executive Committee's and President Clinton's theory
that the existing one-year time bar on asylum applications violates
international law.
---------------------------------------------------------------------------
\66\ See R-S-C- v. Sessions, 869 F.3d 1176, 1188 n.11 (10th Cir.
2017) (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) (similar); Ramirez-
Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016) (similar);
Maldonado, 786 F.3d at 1162 (explaining that Article 3 of the CAT,
which sets out the non-refoulement obligations of parties, was
implemented in the United States by the FARRA and its implementing
regulations). For further discussion on international law principles
as they relate to this rulemaking, see section II.C.6.8 infra.
---------------------------------------------------------------------------
4.7.8. Tax Violations
Comment: Commenters asserted that tax violations are not related to
the merits of an asylum application and that the proposed regulation
would punish asylum seekers for not understanding tax law. Commenters
asserted that another result of EAD regulations is that many asylum
seekers work in the informal economy and are paid ``off the books'' to
support themselves while their applications are pending. Commenters
argued that it is not reasonable to expect asylum seekers (some of
whom, one commenter noted, do not speak English) to navigate the
complexities of tax law to determine if they are required to file
taxes. Another commenter asserted that even if an asylum seeker
determined that he or she was not required to file, it would be
difficult prove in court due to employment in the informal economy. The
commenter also noted that in seeking to comply with the proposed rule,
asylum seekers may turn to, and be defrauded by, notarios.
One commenter asserted that, contrary to the NPRM's reasoning,
consideration of this factor would require more adjudicative time.
Specifically, the commenter asserted that longer asylum interviews and
hearings would be required to determine whether an asylum seeker was
required to file taxes.
Commenters further asserted that immigration judges are not
qualified to make determinations as to whether an individual is
required to file taxes and that by granting them such power the
proposed rule would infringe upon the province of the Department of the
Treasury. Commenters asserted that the proposed rule would open the DOJ
to numerous and costly lawsuits under the APA where plaintiffs would
allege that an immigration judge's misapplication of the tax code led
to denials of asylum applications. Moreover, commenters argued that
such lawsuits would ``effectively bankrupt'' the United States.
Commenters asserted that the proposed provisions relating to tax
violations would violate the U.S. Constitution in two ways. First,
commenters argued that the proposed provisions conflict with the Eighth
Amendment's proscription against cruel and unusual punishment.
Specifically, commenters asserted that if an applicant presents a
meritorious claim, it would be cruel and unusual punishment to consider
the ``minor civil error'' of not filing taxes on time a ``strict
liability offense'' that completely bars the applicant from asylum
protection. Second, commenters argued that the proposed regulation
would violate the Equal Protection Clause because the proposed rule
would create harsher penalties for asylum seekers who do not file than
for citizens and LPRs. Specifically, commenters asserted that by
barring individuals from eligibility for asylum protection, the
proposed rule would create harsher penalties for asylum seekers for tax
non-compliance than for citizens and LPRs who would not face such
severe consequences.
Commenters also asserted that many asylum seekers would not be able
to comply with the proposed tax provisions due to USCIS's rules
pertaining to Employment Authorization Documents (``EAD''). Commenters
asserted that under the EAD rules, it is not possible for asylum
seekers to receive a social security number (``SSN'') prior to
obtaining an EAD. One commenter asserted that the IRS website is
unclear on whether asylum seekers without EADs would be eligible to
receive Individual Taxpayer Identification Numbers (``ITIN''). The
commenter asserted that even if an asylum seeker is eligible for an SSN
or an ITIN, it could still be difficult for the applicant to obtain the
identity documents needed to apply for an SSN or an ITIN from his or
her home country.
Response: In general, the comments on this provision suggest either
that aliens seeking asylum should be excused from filing Federal,
state, or local income tax returns or that the Departments should
ignore clear violations of law when aliens fail to do so. Neither
suggestion is well-taken by the Departments, as either countenancing or
ignoring violations of the law is inconsistent with each's mission.
Moreover, the comments fail to acknowledge clear case law that income
tax violations are a significant adverse discretionary factor in the
immigration adjudication context. See, e.g., Matter of A-H-, 23 I&N
Dec. 774, 782-83 (A.G. 2005) (noting that tax violations ``weigh
against asylum'' because they exhibit ``disrespect for the rule of
law''); cf. In re Jean Gilmert Leal, 2014 WL 4966499, *2 (BIA Sept. 9,
2014) (noting in the context of an application for adjustment of status
that it is ``well settled'' that ``failure [to file tax returns] is a
negative discretionary factor because it reflects poorly on the
applicant's respect for the rule of law and his sense of obligation to
his community'').
The Departments also note that consideration of tax returns filed
by aliens are already enshrined in multiple places in immigration law.
See, e.g., 8 CFR 210.3(c)(3) (alien applicant for legalization program
may establish proof of employment through, inter alia, Federal or state
income tax returns); id. 214.2(a)(4) (alien dependents of certain visa
holders who obtain employment authorization ``are responsible for
payment of all Federal, state and local income, employment and related
taxes and Social Security contributions on any remuneration
received''); id. 214.2(5)(ii)(E) (restricting employment eligibility
for certain visa dependents when the proposed employment is contrary to
the interest of the United States, defined as, inter alia, employment
of visa holders or dependents ``who cannot establish that they have
paid taxes and social security on income from current or previous
United States employment''); id. 214.2(g)(4), (5)(ii)(E) (same, but for
a different visa category); id. 244.9(a)(2)(i), 1244.9(a)(2)(i) (income
tax returns may serve as proof of residence for purposes of an
application for Temporary Protected Status (``TPS'')); id.
1244.20(f)(1) (adjudicator may require proof of filing an income tax
return before granting a fee waiver for a TPS application); id.
1245.13(e)(3)(iii)(E) (alien applicant for adjustment of status may
establish proof of physical presence in the United States through,
inter alia, income tax records). To the extent that commenters raised
concerns about an alien's ability to navigate existing tax systems in
the United States--a question that is beyond
[[Page 80357]]
the scope of this rule--they neither acknowledged the many existing
provisions linking aliens, benefits, and income tax returns nor
persuasively explained why adherence to tax laws is an inappropriate
discretionary factor to consider in the context of the rule.
The Departments disagree with commenters regarding the relation of
tax violations to the statutory discretionary analysis. As the proposed
rule explained, the Departments see no concern with treating an asylum
applicant's failure to file tax forms, when required by law, as a
negative factor in an asylum adjudication when all other individuals
required to file tax returns in the United States are subject to
negative consequences for failure to file required tax forms. See 85 FR
at 36284. The Departments believe that adherence to U.S. tax law is
applicable to a favorable exercise of discretion, and this factor
evaluates such adherence as part of an adjudicator's discretionary
analysis.
The Departments find commenters' concerns associated with working
in the ``informal economy'' to be unpersuasive. Aside from the fact
that working without authorization is unlawful, the Departments
emphasize the potential dangers of working without authorization,
including exploitation, and, thus, strongly discourage aliens from
doing so. Although not the purpose of this regulation, if the rule
deters aliens from working without authorization, then the Departments
find that to be a positive unintended consequence. Further, to the
extent that commenters assert this rule will have negative consequences
on aliens who are violating the law--either by working without
authorization or by failing to file tax returns--the Departments find
continuing illegal activity to be an insufficiently persuasive basis to
alter the rule.
To the extent that commenters are opposed to the EAD regulations or
expressed concern in regard to notario fraud, such concerns are outside
the scope of this rulemaking. Moreover, aliens who require an EAD but
do not possess one should not be engaged in employment, and aliens who
have not engaged in employment will--unless they have another source of
taxable income--generally not be required to file income tax returns
that are the subject of the rule. Further, the Departments recognize
that notario fraud exists, but it exists independently of the rule and
has existed for many years. To the extent that notario fraud exists in
tax preparation services, again, that fraud exists outside of this rule
and flows from long-standing state and Federal tax obligations, not any
provision proposed in the rule. To the extent that commenters oppose
this portion of the rule because they believe it will lead aliens to
engage in unlawful behavior (i.e., working without an EAD), the
Departments note that nothing in the rule requires any individual to
engage in unlawful behavior. Similarly, to the extent that commenters
oppose the rule because they believe it will cause aliens to fulfill an
existing legal obligation (i.e., filing income tax returns) by
utilizing individuals who themselves may engage in unlawful behavior
(i.e., notarios), the Departments also note that nothing in the rule
requires aliens to hire individuals who engage in illegal behavior.
Further, even if aliens turn to notarios to prepare and file tax
returns, they would do so not in response to the rule, but in response
to the myriad laws documented above that already incentivize or require
aliens to file income tax returns. Moreover, under Matter of A-H-, 23
I&N at 782-83, immigration judges may already consider tax violations
as a significantly adverse factor, and commenters point to no evidence
of their predicted dire consequences from that decision. The
Departments therefore believe any such speculative harm is outweighed
by the policy benefits of codifying this factor by rule and providing
clear guidance to adjudicators about how to weigh this factor when
exercising discretion to grant or deny asylum. In short, commenters'
concerns minimize personal responsibility and agency, are outside the
scope of the rulemaking, and are outweighed by the policy benefits of
the rule.
Commenters' concerns about tax law are similarly outside the scope
of this rulemaking. Everyone, U.S. citizens and non-citizens alike, are
required to comply with the tax laws. See 85 FR at 36284 (citing 26
U.S.C. 6012, 7701(b); 26 CFR 1.6012-1(a)(1)(ii), (b)). This rule does
not change tax law, which, as relevant to this rulemaking, requires
certain aliens to file tax forms without regard to their primary
language or the complexity of the tax code. Nevertheless, the IRS has
assistance available in multiple languages, see Internal Revenue Serv.,
Help Available at IRS.gov in Different Languages and Formats (last
updated Apr. 3, 2020), https://www.irs.gov/newsroom/help-available-at-irsgov-in-different-languages-and-formats, and there are numerous
legitimate agencies, clinics, and nonprofits that can also be solicited
for assistance with tax law compliance, see, e.g., Internal Revenue
Serv., Free Tax Return Preparation for Qualifying Taxpayers (last
updated Nov. 9, 2020), https://www.irs.gov/individuals/free-tax-return-preparation-for-qualifying-taxpayers (discussing the IRS's Volunteer
Income Tax Assistance (``VITA'') program); see also Internal Revenue
Serv., IRS Publication 3676-B, https://www.irs.gov/pub/irs-pdf/p3676bsp.pdf (explaining the types of tax returns prepared under the
VITA program). This rule requires consideration of an asylum
applicant's compliance with tax laws as part of the adjudicator's
discretionary analysis and merely provides direction to adjudicators
regarding how to assess, as a discretionary factor, an alien's failure
to adhere to the law. It does not substantively change tax law in any
way.
The Departments disagree with commenters' concerns that evaluating
this factor will require more adjudicative time. As discussed above,
consideration of a failure to file income tax returns is already an
adverse factor for purposes of asylum adjudications. See Matter of A-H-
, 23 I&N at 783. Thus, its further codification in applicable
regulations will not appreciably require additional adjudicatory time.
Further, even if it did, the benefit of clarity and guidance provided
by this rule to the discretionary analysis outweighs any minimal,
additional adjudicatory time.
The Departments are confident that asylum officers and immigration
judges possess the competence and professionalism necessary to timely
interpret and apply the relevant regulations and statutes when
considering this factor. See 8 CFR 1003.10(b) (``immigration judges
shall exercise their independent judgment and discretion'').
Immigration judges have undergone extensive training; further,
immigration judges already interpret and apply complex criminal law as
it affects an alien's immigration status. In light of this, the
Departments disagree with commenters who claim that immigration judges
are not qualified to make determinations based on this factor.
Relatedly, the Department declines to address commenters' speculative
assertions that misapplication of the tax code by immigration judges
will open up the Departments to litigation, which will, in turn,
bankrupt the Departments. As discussed, supra, the Departments have
already been considering the failure to file income tax returns as a
discretionary factor for many years, and such considerations have not
led to the dire consequences predicted by commenters.
[[Page 80358]]
Likewise, the Departments disagree that this factor improperly
infringes on the purview of the Treasury Department. This factor
evaluates the tax status of aliens only as it applies to their
immigration status, which is clearly within the jurisdiction of the
Departments. 8 CFR 208.2, 208.9(a), 1208.2, 1003.10(b). This factor
does not determine tax-related responsibilities or consequences for
such aliens.
Commenters misapply the Eighth Amendment's protection against cruel
and unusual punishment. The Eighth Amendment applies in the context of
criminal punishments, protecting against disproportional punishments as
they relate to the offense. See Roper v. Simmons, 543 U.S. 551, 560
(2005) (``[T]he Eighth Amendment guarantees individuals the right not
to be subjected to excessive sanctions. The right flows from the basic
precept of justice that punishment for crime should be graduated and
proportioned to the offense.'' (cleaned up)).
Denial of an asylum application, however, is not a criminal
punishment. As an initial matter, immigration proceedings are civil in
nature. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984) (``A
deportation proceeding is a purely civil action[.]''). Courts have held
the Eighth Amendment inapplicable to deportation because, as a civil
proceeding, it is not a criminal punishment. See Sunday v. Att'y Gen.
U.S., 832 F.3d 211, 219 n.8 (3d Cir. 2016) (collecting cases); Elia v.
Gonzales, 431 F.3d 268, 276 (6th Cir. 2005); Bassett v. U.S.
Immigration and Naturalization Serv., 581 F.2d 1385, 1387-88 (10th Cir.
1978); cf. Lopez-Mendoza, 468 U.S. at 1038-39. The underlying principle
of these cases is that the power to exclude aliens through deportation
constitutes an ``exercise of the sovereign's power to determine the
conditions upon which an alien may reside in this country,'' rather
than an exercise of penal power. Trop v. Dulles, 356 U.S. 86, 98, 101
(1958) (holding that Congress cannot strip citizenship as a punishment
under the Eighth Amendment, but distinguishing denaturalization of a
citizen from deportation of an alien); see also Fong Yue Ting v. United
States, 149 U.S. 698, 705 (1893) (noting that the power to exclude
aliens is an inherent function of sovereignty).
Accordingly, denial of asylum, regardless of the reasoning
underlying such denial, cannot be construed as a criminal punishment
subject to the Eighth Amendment because it is adjudicated in a civil
proceeding as a form of discretionary relief. Further, this factor is
not a ``strict liability offense,'' as asserted by the commenters,
because it is only a factor to consider as part of the discretionary
component of asylum eligibility under the Act. INA 208(b)(1)(A), 8
U.S.C. 1158(b)(1)(A); see 85 FR at 36283.
Commenters also misapply the Equal Protection Clause. This rule
applies to all aliens and does not impose any classifications that
would trigger heightened scrutiny under the clause. Thus, this factor
does not offend principles of equal protection under the Constitution.
Finally, to the extent that commenters are concerned certain aliens
may have difficulties meetings their tax obligations due to DHS's EAD
rules, the Departments again note that these discretionary factors are
not bars to eligibility. The Departments note, however, that asylum
seekers who lack an EAD should generally not have a tax liability as
they are prohibited from engaging in employment. Any other comments
regarding specific IRS requirements for the issuance of SSNs or ITINs
are outside the scope of this rule.
4.7.9. Two or More Prior Asylum Applications Denied for Any Reason
Comment: One commenter noted that there are many reasons that an
asylum applicant may have had two or more prior asylum applications
denied, including ineffective assistance of counsel, mental disability
that prevented the applicant from properly articulating the claim, and
pursuing the claim pro se. The commenter asserted that it would be
inappropriate in such circumstances to deny future bona fide asylum
applications.
One commenter asserted that it was inappropriate to include the
proposed provision concerning denial of two or more asylum applications
as a factor in discretionary determinations. Instead, the commenter
argued, the presence of such a factor should be considered on a case-
by-case basis and together with all of the circumstances.
Response: This factor, like the other factors, is considered under
the totality of the circumstances. Further, it is not a bar to asylum;
it is one of various factors that adjudicators should consider in
determining whether an application merits a favorable exercise of
discretion.
The Departments reiterate that consideration of this factor, as
well as the other factors, does not affect the adjudicator's ability to
consider whether extraordinary circumstances exist or whether denial of
asylum would result in exceptional and extremely unusual hardship to
the alien. 85 FR at 36285; 8 CFR 208.13(d)(2)(ii), 1208.13(d)(2)(ii).
Accordingly, an adjudicator may consider the circumstances referenced
by the commenter--ineffective assistance of counsel, mental disability,
lack of counsel--and determine whether they constitute extraordinary
circumstances. Further, the Departments reiterate that such aliens may
still apply for other forms of relief, such as non-discretionary
withholding of removal and protection under the CAT.
4.7.10. Withdrawn a Prior Asylum Application With Prejudice or Been
Found To Have Abandoned a Prior Asylum Application
Comment: One commenter asserted that the proposed provisions
concerning withdrawn and abandoned asylum applications are in conflict
with a true discretionary determination. Specifically, the commenter
asserted that discretionary determinations require consideration of the
factor in light of the totality of circumstances, as opposed to the
proposed ``strict liability'' standard.
Commenters asserted that, contrary to the NPRM's reasoning, there
could be many valid reasons that an applicant would choose to withdraw
or abandon an asylum application. One commenter noted that pursuing a
family-based visa or Special Immigrant Juvenile (``SIJ'') status are
two such examples. Another commenter noted that asylum seekers could be
forced to abandon applications for reasons beyond their control,
including a failure by the government to inform the asylum seeker of a
court date, governmental notice that did not correctly state the time
and place of a hearing, or a proceeding occurring in a language a
respondent did not understand. Another commenter asserted that MPP has
caused some asylum seekers at the southern border to abandon their
applications. Specifically, the commenter asserted that some asylum
seekers who had been returned to Mexico under MPP were subsequently
kidnapped, which caused them to miss their hearings. The commenter
asserted that immigration judges have been instructed to enter an order
of removal in such instances, even when the judge has serious concerns
that the asylum seeker did not appear as a result of kidnapping or
violence.
One commenter acknowledged the existence of notarios and other bad
actors who seek to abuse the asylum system by filing asylum
applications without their clients' knowledge or consent and by
engaging in ``ten year visa'' schemes. Rather than addressing abuse,
the commenter argued that the proposed regulation would punish asylum
seekers who have been victims
[[Page 80359]]
of such fraud because it could result in future applications being
rejected on discretionary grounds.
One commenter asserted that asylum offices have ``piloted
projects'' encouraging representatives to waive the asylum interview
and have the matter referred directly to an immigration court. The
commenter asserted that applicants may have relied on such action by
asylum offices to assume the government did not have an objection to
filing an asylum application for the purpose of being placed in removal
proceedings. The commenter asserted that ICE should initiate removal
proceedings in such situations if the individual has ``compelling
reasons'' to pursue cancellation of removal.
Response: The Departments reiterate that this factor, along with
all the other factors, is considered as part of the discretionary
analysis. The rule does not propose a ``strict liability standard,'' as
alleged by commenters, and this factor's presence does not bar asylum.
The NPRM stated clearly that ``[i]f the adjudicator determines that any
of these nine circumstances apply during the course of the
discretionary review, the adjudicator may nevertheless favorably
exercise discretion in extraordinary circumstances, such as those
involving national security or foreign policy considerations, or if the
alien demonstrates, by clear and convincing evidence, that the denial
of asylum would result in an exceptional and extremely unusual hardship
to the alien.'' See 85 FR at 36283-84. Accordingly, while the presence
of this factor constitutes an adverse factor, adjudicators will
consider extraordinary circumstances or exceptional and extremely
unusual hardship--of which commenters referenced numerous examples--
that may have led an applicant to withdraw or abandon a prior
application.
This rule does not ``punish'' asylum seekers for the conduct of
their attorneys. Although the actions of an attorney may bind an alien
absent egregious circumstances, Matter of Velasquez, 19 I&N at 377,
nothing in the rule prohibits an alien from either alleging such
circumstances to avoid the withdrawal or raising a claim of ineffective
assistance of counsel.\67\ If an alien has concerns about the conduct
of his or her representative, the alien should file an ineffective
assistance of counsel claim or immigration fraud claim. See, e.g., Sow
v. U.S. Att'y Gen., 949 F.3d 1312, 1318-19 (11th Cir. 2020)
(ineffective assistance of counsel); see also Viridiana v. Holder, 646
F.3d 1230, 1238-39 (9th Cir. 2011) (distinguishing between an
ineffective assistance of counsel claim and immigration consultant
fraud and explaining that fraud by an immigration consultant may
constitute an extraordinary circumstance). Overall, however, concerns
about the impact of unscrupulous attorneys are largely speculative and
remain capable of appropriate redress. Thus, the Departments decline to
preemptively attempt to resolve speculative or hypothetical concerns.
---------------------------------------------------------------------------
\67\ An alien may also file a claim with DOJ's Fraud and Abuse
Prevention Program (Program), which investigates complaints of
fraud, scams, and unauthorized practitioners and addresses these
issues within EOIR. See EOIR, Fraud and Abuse Prevention Program
(last updated Mar. 4, 2020), https://www.justice.gov/eoir/fraud-and-
abuse-prevention-program. The Program also supports investigations
into fraud and unauthorized practice, prosecutions, and disciplinary
proceedings initiated by local, state, and Federal law enforcement
and disciplinary authorities. Id. From the efforts of this Program,
and others, the Departments seek to ensure that aliens in
proceedings before them are not victims to unscrupulous behavior by
their representatives.
---------------------------------------------------------------------------
Further, should unusual circumstances warrant, applicants may
present evidence so that adjudicators may consider whether it
constitutes an extraordinary circumstance or exceptional and extremely
unusual hardship, as previously described. Viridiana, 646 F.3d at 1238-
39. Accordingly, the Departments disagree that consideration of this
factor punishes asylum seekers who are victims of fraud.
Finally, regarding commenters' notation that asylum seekers may
have relied on previous USCIS pilot programs to assume the government
did not have an objection to filing an asylum application for the
purpose of being placed in removal proceedings, the Departments
disagree that it would ever have been appropriate or authorized to file
an asylum application without an actual fear of persecution or torture
and an intent to seek such relief or protection. Indeed, the I-589 form
itself requires the alien's attestation as to the truth of the
information provided and an acknowledgement of the consequences of
filing a frivolous application.
4.7.11. Failed To Attend an Interview Regarding His or Her Asylum
Application
Comment: Commenters asserted that the proposed provision concerning
failure to attend an interview regarding his or her asylum application
is unfair, and that presence of the proposed factor should be one
factor considered in context with the totality of the circumstances.
Commenters asserted that the proposed ``extraordinary
circumstances'' exception is unfair because it would not recognize
valid explanations that, as one commenter noted, do meet the current
``good cause'' standard. For example, one commenter asserted that valid
exceptions that may not rise to the level of extraordinary
circumstances include lack of child care on the day of the interview,
issues with public transportation, medical issues, or an interpreter
cancelling at the last minute. One commenter asserted that the NPRM
does not clarify what explanations would rise to the level of
extraordinary circumstances.
One commenter asserted that the proposed regulation would increase
the court backlog and that USCIS factors in the possibility that
applicants may not appear for interviews to ensure that no interview
slot is wasted. Specifically, the commenter asserted that under current
USCIS policy, USCIS will typically wait 46 days before turning over a
case to an immigration court, so as to give the applicant time to
establish good cause and reschedule a missed interview. By not giving
USCIS such flexibility, the commenter argued, more cases would be
referred to the immigration courts, thereby increasing the backlog.
One commenter expressed concern with the proposed exception
regarding the mailing of notices. The commenter argued that it is
unfair to require applicants to prove that the government sent the
notice to the correct address. The commenter also asserted that it is
important for USCIS to send the notice to both the applicant and the
applicant's representative. By just sending the notice to a
representative, the commenter argued, a representative who had a
falling out with his or her client (as a result of, the commenter
highlighted, ineffective assistance of counsel or dispute over payment)
may not inform the applicant of an upcoming interview, which could
cause the applicant to miss the interview. The commenter noted that in
the current COVID-19 environment, a representative may not be able to
go to the office to receive mail in a timely fashion, which means that
some applicants may not learn of the interview until it is too late.
Conversely, the commenter argued, sending the notice only to applicants
could lead to missed interviews because applicants who do not
understand English may disregard the notice due to a misunderstanding
of its importance.
Response: This factor is not an absolute bar to asylum; instead,
this factor is considered as part of the
[[Page 80360]]
adjudicator's discretionary analysis. The proposed rule clearly stated
that presence of this factor constitutes an adverse factor, 85 FR at
36283, not an asylum bar. Further, the alien may argue that (1)
exceptional circumstances prevented the alien from attending the
interview or (2) the interview notice was not mailed to the last
address provided by the alien or the alien's representative and that
neither received notice of the interview. See 8 CFR
208.13(d)(2)(i)(H)(1)-(2), 1208.13(d)(2)(i)(H)(1)-(2) (proposed). Such
exceptions are evidence that this factor does not constitute a bar to
asylum.
The exceptions provided in proposed 8 CFR 208.13(d)(2)(i)(H)(1),
1208.13(d)(2)(i)(H)(1) broadly allow for ``exceptional circumstances.''
If the rule identified exact circumstances sufficient to negate this
factor--departing the United States or withdrawing the application for
another reason, as suggested by the commenter--it would unnecessarily
limit aliens to a narrow set of permissible reasons for why an alien
might have missed an interview. The Departments recognize that a number
of reasons may cause an alien's absence at an interview, including
unanticipated circumstances by the Departments, and the broad language
allows for such possibility. Contrary to the commenter's allegations,
the Departments included language specifically referencing failure to
receive the notice. See 8 CFR 208.13(d)(2)(i)(H)(2),
1208.13(d)(2)(i)(H)(2) (proposed).
This factor is not arbitrary or unfair. The current administrative
process required after an alien misses an interview demonstrates the
necessity of this factor's inclusion in a discretionary analysis. While
asylum officers may currently follow a process for missed interviews,
as commenters described, missed interviews increase overall
inefficiencies because a case does not timely progress as the
Departments intend. Commenters' reasoning that the rule increases
inefficiencies at the hearing stage in place of rescheduling the
interview in the first instance is nonsensical. If a missed interview
is rescheduled, the case is prolonged at the outset, thereby increasing
overall time to adjudicate the application. Moreover, the application
may still be adjudicated in a hearing at a later date, adding even more
time overall for adjudication. If a missed interview triggers
scheduling of a hearing, as outlined in this rule, the case efficiently
proceeds to the hearing stage where an adjudicator will balance all
factors, including the missed interview, in a discretionary analysis.
At bottom, the rule encourages aliens to attend their interviews after
filing an asylum application, which increases the likelihood of being
granted asylum and, thus, reduces the likelihood of cases being
referred to an immigration judge. Accordingly, the Departments disagree
that this factor is arbitrary or unfair or would increase the backlog.
Rather, the current system allows aliens to prolong adjudication of
their applications at the expense of slowing the entire system, such
that other aliens fail to receive timely adjudication of their
applications. The Departments believe this current system is unfair and
seek to resolve these inefficiencies through this rulemaking.
As commenters aptly pointed out, these cases may involve
significant issues that must be determined and further explored in an
interview. The interview is a vital step in adjudication of an asylum
application. See DHS, Establishing Good Cause or Exceptional
Circumstances (last updated Aug. 25, 2020), https://www.uscis.gov/
humanitarian/refugees-and-asylum/asylum/establishing-good-cause-or-
exceptional-circumstances (``You must attend your scheduled asylum
interview or the asylum office will treat your case as a missed
interview (failure to appear).''). Other regulatory provisions already
attest to the importance of this interview through imposition of blunt
consequences. See, e.g., 8 CFR 208.7(a)(iv)(D), 1208.7(a)(4) (providing
that an alien will be denied an EAD upon failure to appear for an
interview, absent extraordinary circumstances); see also 8 CFR
208.10(b)(1), 1208.10 (providing that failure to attend an interview
may result in ``dismissal of the application''). In addition, aliens
who are inadmissible or deportable and fail to attend their interview
risk being deemed to have waived their right to an interview, the
dismissal of their application, and being placed in removal proceedings
where they may ultimately be ordered removed by an immigration judge. 8
CFR 208.14(c)(1). The NPRM's consideration of this factor further
reflects the urgency and importance of attending such interviews but
for the most exceptional reasons. For that reason, and not, as
commenters alleged, to punish asylum seekers, the Departments include
it as a factor for consideration.
Commenters' concerns about problems that may arise between an alien
and his or her representative are speculative. Regardless of the
rulemaking, such concerns are not without redress: an alien could file
an ineffective assistance of counsel claim, see, e.g., Sow, 949 F.3d at
1318-19, or an alien could claim that immigration consultant fraud (or
the like) is an extraordinary circumstances, see Viridiana, 646 F.3d at
1238-39.
Commenters' concerns about aliens providing a correct address to
the Departments are also beyond the scope of this rulemaking. Aliens
are already required to notify DHS of changes of address, INA 265, 8
U.S.C. 1305, and may face criminal, INA 266(b), 8 U.S.C. 1306(b), or
civil, INA 237(a)(3)(A), 8 U.S.C. 1227(a)(3)(A), repercussions for not
doing so. The rule does not alter the long-standing requirement that
aliens notify the Government of their current address.
This exception employs a lower standard of preponderance of the
evidence. Meeting such burden varies depending on the case; therefore,
the Departments decline to expand on the exact method of proof or
documents necessary to meet that burden.
4.7.12. Subject to a Final Order of Removal, Deportation, or Exclusion
and Did Not File a Motion To Reopen To Seek Asylum Based on Changed
Country Conditions Within One Year of the Changes in Country Conditions
Comment: Commenters expressed concern that the proposed
discretionary factor pertaining to failure to file a motion to reopen
after a final order had been entered and within one year since changed
country conditions emerged would lead to the denial of most asylum
applications. As with other proposed discretionary factors, commenters
asserted that the proposed rule was not creating a true discretionary
determination as a result of the weight given to the presence of this
proposed factor. One commenter asserted that by giving this and other
proposed factors significant negative weight, the Departments would be
inappropriately deviating from Matter of Pula, which, the commenter
argued, is well-established precedent. Commenters asserted that the
proposed discretionary factor should be considered on a case-by-case
basis and in context with all the circumstances.
One commenter asserted that the proposed factor is ultra vires and
conflicts with congressional intent because it ``directly contradicts''
section 240(c)(7)(C)(ii) of the Act, 8 U.S.C. 1229a(c)(7)(C)(ii), which
states circumstances for which there are no time limits for filing a
motion to reopen. The commenter argued that the one case cited by the
NPRM in support of the proposed provision, Wang v. BIA, 508 F.3d 710,
715-16 (2d Cir. 2007), concerned a different provision of the INA.
Specifically, the commenter
[[Page 80361]]
asserted that the asylum seeker in Wang was subject to a 90-day limit
on filing a motion to reopen and was arguing for equitable tolling in
light of ineffective assistance of counsel. The commenter thus argued
it is ``irrational'' for the government to use the case to justify the
regulation.
Another commenter expressed opposition to the rule because it
presumes that the exact date of a country condition change can be
precisely determined, which in turn presumes that country conditions
``turn on a dime.'' Because, the commenter alleged, the NPRM did not
provide guidance on determining when a change exactly occurs, the
commenter predicted ``protracted disputes'' over when a change occurs,
which would be ``antithetical to judicial economy.'' One commenter
expressed disagreement with the NPRM's reasoning that the proposed
provision would increase ``efficiency in processing.'' Specifically,
the commenter asserted that the NPRM failed to explain why adjudicating
a motion to reopen filed 13 months after the presence of changed
country conditions would be less efficient than adjudicating a similar
motion filed 11 months after the change.
Response: This factor, like all other factors discussed herein, is
part of the adjudicator's discretionary analysis. 85 FR at 36285. This
factor's presence does not bar asylum; an alien who files a motion to
reopen based on changed country conditions more than one year following
such changed conditions may still show that extraordinary circumstances
exist or that denial of asylum would result in an exceptional and
extremely unusual hardship to the alien. 8 CFR 208.13(d)(2)(ii),
1208.13(d)(2)(ii) (proposed). Accordingly, applications are indeed
considered on a case-by-case basis, and concerns that this factor would
result in denial of most asylum applications is speculative.
Further, commenters did not engage the Departments' animating
thrust behind this provision--to discourage dilatory claims, encourage
the timely adjudication of new claims, and improve overall efficiency.
Those benefits far outweigh any alleged concerns raised by commenters,
especially since the presence of ``changed country conditions'' is a
clear statutory basis for filing a motion to reopen. INA
240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii). Both the Departments and
aliens have a clear interest in raising and adjudicating claims for
asylum in a timely fashion. To that end, there is nothing unreasonable
or inappropriate about considering a lengthy delay in raising a claim
as an adverse discretionary factor because such delays undermine the
efficiency of the overall system and may, as a secondary effect, delay
consideration of other meritorious claims.
Consideration of this factor does not impermissibly deviate from
Matter of Pula. As explicitly stated in the NPRM, the rule's approach
supersedes Matter of Pula. 85 FR at 36285. Because ``[a]gencies are
free to change their existing policies as long as they provide a
reasoned explanation for the change,'' Encino Motorcars, LLC, 136 S.
Ct. at 2125, the Departments permissibly superseded Matter of Pula's
approach. See Section II.C.4.7 of this preamble for further discussion
regarding the permissibility of superseding that case.
This factor also aligns with the statute. As commenters correctly
stated, section 240(c)(7)(C)(ii) of the Act, 8 U.S.C.
1229a(c)(7)(C)(ii), provides ``there is no time limit'' to file a
motion to reopen to apply for relief under section 208 of the Act, 8
U.S.C. 1158, or section 241(b)(3) of the Act, 8 U.S.C. 1231(b)(3),
based on changed country conditions. The rule does not institute a time
limit in contravention of the statute.
Nor was the Departments' reference to Wang, 508 F.3d at 715-16,
irrational. That case demonstrated the importance of aliens exercising
due diligence in their cases. The citation was not meant to illustrate
an identical fact pattern justifying the entire regulation, as one
commenter alleged.
Although the Departments acknowledge it may be difficult to
ascertain the precise date on which country conditions changed, the
Departments also do not believe that ascertaining one specific day is
necessarily required in most cases or that an inability to ascertain
the precise date undermines the rule's efficacy. Even if country
circumstances do not ``change on a dime'' and adjudicators can project
only a range of dates, many cases would fall clearly inside or outside
the one-year window. For example, if evidence showed that country
conditions changed over a three-month period and the applicant filed
two years outside the period, an adjudicator would be able to find this
adverse factor notwithstanding difficulty in ascertaining a single day
on which country conditions changed. In the Departments' view, the one-
year window provides ample time for aliens to file a claim. And, in any
event, the Departments doubt that it will be so difficult to ascertain
a precise date in many cases. When a discrete event--e.g., a ceasefire
in a civil war--changes a country's conditions, determining a precise
date will be straightforward. Accordingly, the rule would not produce
``protracted disputes'' about the date country conditions changed.
Moreover, commenters did not plausibly or persuasively explain why
an alien with a genuine well-founded fear of persecution would delay in
filing an asylum application for a significant length of time, and it
strains credulity that such an alien would wait more than a year to
seek asylum, absent some extraordinary circumstance. The rule requires
that the alien exercise due diligence with regard to the case. 85 FR at
36285. If, for some reason, the alien is unable to meet that one-year
deadline for reasons related to commenters' concerns that pinpointing
the exact date a country condition changed will be problematic, an
alien may present such an event as an extraordinary circumstance in
accordance with the rule. See id.
The Departments have a significant interest in expedient, efficient
adjudication of asylum cases. See Talamantes-Penalver v. INS, 51 F.3d
133, 137 (8th Cir. 1995) (``Enforcement of this nation's immigration
laws is enhanced by the speedy adjudication of cases and the prompt
deportation of offenders.''). Establishing this factor strongly
encourages and underscores the importance of expedient resolution of
asylum cases; however, the Departments note that expediency and
efficiency do not trump extraordinary circumstances that may exist or
exceptional or extremely unusual hardship that may result if asylum is
denied.
The Departments have determined that the appropriate timeframe
within which an alien should be able to file a motion to reopen based
on changed country conditions is one year from a changed country
condition. Currently, the regulation at 8 CFR 1208.4(a)(4)(ii) provides
that an alien should file an asylum application
within a reasonable period, given those ``changed circumstances.''
If the applicant can establish that he or she did not did not become
aware of the changed circumstances until after they occurred, such
delayed awareness shall be taken into account in determining what
constitutes a ``reasonable period.''
Case law broadly applies this ``reasonable period'' standard. See
Pradhan v. Holder, 352 F. App'x. 205, 207 (9th Cir. 2009) (explaining
that, based on the record, the immigration judge properly denied an
asylum application filed 11 months after the applicant learned of
changed country conditions and his family kept him apprised of the
political climate in the country); cf. Ljucovic v. Barr, 796 F.
[[Page 80362]]
App'x. 898, 899 (6th Cir. 2020) (dismissing for lack of jurisdiction a
petition challenging the BIA's denial of a motion to reopen asylum
proceedings four years following awareness of a changed condition
because the petitioner did not exercise due diligence and file within a
reasonable period of time). This factor would be no more difficult to
apply than 8 CFR 1208.4's ``reasonable period'' standard, and, for
purposes of the discretionary analysis, this rule determines that a
reasonable period of time is one year within the date of the changed
country condition. Further, just as 8 CFR 1208.4 allows adjudicators to
consider ``delayed awareness'' in evaluating ``what constitutes a
reasonable period'' when determining whether an alien may apply for
asylum, this factor similarly allows adjudicators to consider whether
extraordinary circumstances or exceptional or extremely unusual
hardship would arise when determining whether to exercise discretion to
grant or deny asylum.
Because Congress determined it reasonable for aliens to file an
initial application within one year of arrival, INA 208(a)(2)(B), 8
U.S.C. 1158(a)(2)(B), the Departments similarly find it reasonable to
use a one-year timeline, rather than 11 months or 13 months as
suggested by commenters, in evaluating this factor as part of a larger
discretionary analysis, subject to the exceptions previously described.
The Departments recognize that any specific deadline is inherently both
over- and under-inclusive to some extent, but the benefits of a clear
deadline that is both familiar to applicants and adjudicators and
straightforward to administer outweigh any purported benefits
attributable to an unfamiliar and uncommon deadline--e.g., 13 months--
or one that is more difficult to apply--e.g., a ``reasonable period''--
particularly in the context of a discretionary analysis.
4.8. Firm Resettlement
Comment: Commenters asserted that the proposed firm resettlement
provisions conflict with international law. Commenters stated that
Congress considered the language in section 208(b)(A)(vi) of the Act, 8
U.S.C. 1158(b)(A)(vi), to be equivalent to Article 1E of the Refugee
Convention, which only considered refugees to be resettled when they
permanently took up residence in a third country or were afforded
rights comparable to third country nationals. One commenter stated that
the permanent residency requirement is further evidenced in the 1950
amendments of the Displaced Persons Act. See An Act to Amend the
Displaced Persons Act of 1948, Public Law 81-555, 64 Stat. 219 (1950).
The commenter asserted that the amendments were designed to ensure that
those who temporarily resided in parts of Europe following their flight
from Nazi persecution would remain eligible for protection in the
United States. Under the proposed rules, the commenter argued, these
same individuals would be inappropriately barred from asylum.
Commenters expressed concern that, under proposed 8 CFR
208.15(a)(1), individuals unaware of third country resettlement laws in
countries through which they fleetingly passed could be punished and
that those attempting to firmly resettle in a third country could face
a number of challenges incompatible with the congressional intent of
the concept of firm resettlement. Commenters argued, for example, that
those attempting to firmly resettle could face restrictions on freedom
of movement, unfair immigration procedures, government corruption,
violence, and the practical inability to obtain legally guaranteed
documents permitting asylees the right to live and work in the country
while an application is pending. Commenters similarly asserted that,
contrary to the NPRM's reasoning, the number of resettlement
opportunities has not grown in recent years, and that considering
whether a third country is a signatory to the Refugee Convention is not
sufficient to determine whether firm resettlement is possible. A firm
resettlement inquiry, commenters argued, requires a case-by-case
consideration of the facts and circumstances.
Commenters asserted that proposed 8 CFR 208.15(a)(1) would replace
a clear standard that is well-established in Federal case law and
international law with an ambiguous standard that would require
adjudicators to speculate in regard to what applicants could have done
in third countries through which they transited. Accordingly,
commenters argued, the proposed provision would result in lengthy
litigation. One commenter asserted that the proposed provision is not
legally defensible, as evidenced by the recent transit bar litigation
invalidating a similar provision.
Commenters also stated opposition to proposed 8 CFR 208.15(a)(2).
Commenters expressed concern that the proposed one-year bar would apply
even if there is no possibility of ever obtaining a permanent or
indefinitely renewable status in the country. Commenters also asserted
that the proposed provision would inappropriately exclude most asylum
seekers who were returned to Mexico under MPP because MPP often
requires aliens to wait in Mexico for more than a year. Another
commenter stated that UNHCR estimates that approximately 16 million
refugees have spent five years in countries where they could not be
considered firmly resettled and that they would be inappropriately
barred from asylum under the proposed provision. Commenters expressed
concerns that the proposed provision does not include exceptions for
individuals who are victims of trafficking, lack the financial means to
leave a third country, or fear persecution in the third country.
Commenters asserted that examples in the United States demonstrate
the problems with proposed 8 CFR 208.15(a)(2). Commenters asserted that
recipients of Deferred Action for Childhood Arrivals--who commenters
noted are granted permission to stay in the United States in two-year
increments--would be considered firmly resettled under the proposed
rule even though their status could be rescinded at any time. Second,
commenters similarly asserted that many undocumented individuals in the
United States have lived here for decades, but that they cannot be
considered firmly resettled because they are denied the opportunity to
fully and meaningfully participate in public life and they live and
work under the fear of removal.
Commenters opposed proposed 8 CFR 208.15(a)(3). One commenter
stated that the proposed provision is unclear as to when presence in a
country of citizenship occurred. The commenter asked, ``[d]oes it mean
that the applicant must have been present there sometime before coming
to the United States, anytime in their whole lives?'' The commenter
asserted that it is unfair and unreasonable to consider someone firmly
resettled in a country of citizenship without also considering factors
such as whether such individual has the right to reside in the country
and could be reasonably expected to do so. Commenters asserted that
proposed 8 CFR 208.15(b) conflicts with Matter of A-G-G-, 25 I&N Dec.
486 (BIA 2011), which commenters asserted requires DHS to present
evidence that a mandatory bar applies. Commenters stated that, under
the proposed provision, if DHS or an immigration judge raises the issue
that the firm resettlement bar might apply, then the burden of proof
shifts to the respondent. This burden shifting, commenters argued,
would increase the number of
[[Page 80363]]
unjust asylum application denials because pro se asylum seekers--
especially non-English speakers and detainees--lack access to the
knowledge or resources necessary to satisfy their burden of proof.
Moreover, one commenter stated that if the proposed provision grants
authority to DHS counsel to determine that firm resettlement applies,
even if an immigration judge disagrees, then the subsection would
inappropriately usurp immigration judges' authority.
One commenter asserted that the proposed rule would inappropriately
permit the firm resettlement circumstances of a parent to be imputed to
children and that a child's case must be considered separately from his
or her parents' cases. Commenters similarly asserted that it is
unreasonable to expect children to comport their movements and behavior
in accordance with the proposed regulation.
Commenters noted that refugees--in addition to asylum applicants--
are subject to a statutory bar based on firm resettlement. See INA
207(c)(1), 8 U.S.C. 1157(c)(1). At least one commenter suggested that
refugee admission applicants and asylum applicants should be subject to
the same standards. Commenters noted that, because Congress enacted
laws to protect refugees and intended the firm resettlement bar to
exclude refugees from protection only in narrow circumstances, the
proposed standard for firm resettlement was an ``affront to
Congressional intent.''
Response: Despite a lengthy history of international law,
regulatory enactments, and circuit court interpretations, see Matter of
A-G-G-, 25 I&N Dec. at 489-501 (explaining firm resettlement history),
Congress ultimately codified the firm resettlement bar to asylum in
IIRIRA without including any specific firm resettlement requirements,
just as it had previously codified a firm resettlement bar to refugee
admission without any specific requirements, INA 207(c)(1), 8 U.S.C.
1157(c)(1). Rather, the statutory language only states that asylum
shall not be granted to an alien who ``was firmly resettled in another
country prior to arriving in the United States.'' INA 208(b)(2)(A)(vi),
8 U.S.C. 1158(b)(2)(A)(vi). Accordingly, the Departments are using
their regulatory authority to interpret this ambiguous statutory
language.\68\ See Matter of R-A-, 24 I&N Dec. at 631 (explaining that
agencies are not bound by prior judicial interpretations of ambiguous
statutory interpretations because there is a presumption that Congress
left statutory ambiguity for the agencies to resolve). A clearer
interpretation will help adjudicators in making firm resettlement
determinations. Circuit courts have previously provided diverging
interpretations of the firm resettlement requirements. See Matter of A-
G-G-, 25 I&N Dec. at 495-500 (explaining differing circuit court
approaches under the prior firm resettlement regulations).
---------------------------------------------------------------------------
\68\ The Departments acknowledge that the concept of firm
resettlement is a statutory bar to both refugee admission, INA
207(c)(1), 8 U.S.C. 1157(c)(1), and the granting of asylum, INA
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi). The two separate bars
were enacted 16 years apart.
---------------------------------------------------------------------------
In addition, as discussed further herein, efforts by the Board to
provide clarity have not been fully successful, as its four-step
framework reflects an unwieldy amalgamation of two competing approaches
offered by Federal courts: The ``direct offer approach'' and the
``totality of the circumstances approach.'' Id. at 496-98, 501.
Further, as described more fully below, its framework is not directed
by any applicable statute or regulation,\69\ contains internal tension,
is in tension with other regulations regarding the parties' burdens,
introduces ambiguous concepts such as indirect evidence of an offer of
firm resettlement of ``a sufficient level of clarity and force,'' id.
at 502, and relies principally on the concepts of an ``offer'' \70\ and
of ``acceptance'' of firm resettlement, even though the INA does not
require an offer or acceptance for the provisions of INA
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(ii), to apply. See Matter of
A-G-G-, 25 I&N Dec. at 501-03 (discussing the various aspects of its
four-step framework). Ultimately, the best reading of the Board's cases
is that the availability of some type of permanent legal immigration
status or any non-permanent but indefinitely renewable legal
immigration status--regardless of whether the alien applies for such
status or has such status offered--is sufficient to raise the
possibility of the firm resettlement bar, and that reading is
incorporated into the rule.\71\ See id. at 503 (``The regulations only
require that an offer of firm resettlement was available, not that the
alien accepted the offer.''). Based on these considerations and others,
as described more fully below, the Departments have concluded that the
current framework--with its case-by-case development and four-step
framework that is divorced from any statute or regulation--invites
confusion and inconsistent results because of immigration judges'
potentially subjective judgments about how the framework should apply
to the particular evidence in any given case. The Departments
accordingly believe that the rule-based approach contained in this
final regulation is more appropriate. 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)).
---------------------------------------------------------------------------
\69\ Although the Board in Matter of A-G-G-, 25 I&N Dec. at 501,
asserted that its framework follows the language of 8 CFR 1208.15,
nothing in the text of that regulation actually outlines a
particular framework to follow when considering issues of firm
resettlement, and the regulation certainly does not delineate the
four steps put forth by the Board. Further, the Board's reading of 8
CFR 1240.8(d) to suggest that DHS bears the initial burden at step
one of its framework of establishing evidence that the firm
resettlement bar applies, Matter of A-G-G-, 25 I&N Dec. at 502, is
likewise atextual, and is further called into significant doubt by a
recent decision of the Attorney General, see Matter of Negusie, 28
I&N Dec. 120, 154-55 (A.G. 2020) (``Consistent with the clear
statutory mandate that an alien has the burden of proving
eligibility for immigration relief or protection, the regulations
make plain that if evidence in the record indicates that [a] bar may
apply, then the applicant bears the additional burden of proving by
a preponderance of the evidence that it does not. Although the
evidence in the record must raise the possibility that the bar `may
apply,' id. Sec. 1240.8(d), neither the statutory nor the
regulatory scheme requires an extensive or particularized showing of
the bar's potential applicability, and evidence suggesting the bar's
applicability may come from either party. While the immigration
judge must determine whether the evidence indicates that the . . .
bar may apply--and, thus, whether the alien bears the burden of
proving its inapplicability--that determination is an evidentiary
one that does not stem from any burden on DHS. This conclusion is
underscored by other statutory and regulatory provisions that
specify when DHS is required to assume an evidentiary burden.
Placing an initial burden on DHS to establish the applicability of
the . . . bar would be contrary to the relevant statutory and
regulatory scheme, and would unnecessarily tax its limited
resources.'' (footnote, citations, and internal quotations
omitted)).
\70\ The Board's efforts to refine the concept of an ``offer''
have not improved the clarity of the application of the firm
resettlement bar, as adjudicators may understandably be confused
about how to consider whether an alien accepted an offer that was
``available,'' but not necessarily made. Matter of A-G-G-, 25 I&N
Dec. at 502-03. Similarly, the Board adopted a ``totality of the
evidence'' standard, id. at 503, but did not explain if that
standard was intended to encompass the Federal courts' ``totality of
the circumstances'' approach or to constitute something different.
\71\ As discussed herein, the Departments recognize that other
parts of Matter of A-G-G- are superseded by this rule because, inter
alia, they are unwieldy to apply, in tension with other regulations
or with other parts of the decision itself, do not represent the
best implementation of the statute, do not appreciate the actual
availability of firm resettlement in many countries, and are
outweighed by the benefits of the rule as a policy matter. Thus, the
Departments have provided ``reasoned explanation[s]'' for their
departures from Matter of A-G-G- to the extent that there are actual
departures. See Encino Motorcars, LLC, 136 S. Ct. at 2125 (citing
Brand X, 545 U.S. at 981-82).
---------------------------------------------------------------------------
In interpreting the statutory language, the Departments considered
the history
[[Page 80364]]
of the firm resettlement concept and determined that prior
interpretations do not fully address the need for clarity and specific
delineation of the meaning of firm resettlement. Moreover, prior
adjudicatory interpretations do not effectively appreciate the
availability of firm resettlement in many countries. Thus, the
Departments believe that a broader interpretation of firm resettlement
is necessary to ensure that the United States' overburdened asylum
system is available to those with a genuine need for protection, and
not those who want to live in the United States for other reasons and
simply use the asylum process as a way to achieve those goals. See 85
FR at 36285-86. The Departments' interpretation also comports with the
overall purpose of the asylum statute, which is ``not to provide
[applicants] with a broader choice of safe homelands, but rather, to
protect [refugees] with nowhere else to turn.'' Matter of B-R-, 26 I&N
Dec. at 122 (quotation marks omitted).
The Departments' definition creates three grounds for a finding of
firm resettlement.\72\ The first ground captures aliens who have
resided, or could have resided, permanently or indefinitely in a
country but who have chosen not to pursue such opportunities. The
Departments have determined that the firm resettlement bar should apply
regardless of whether the alien received a direct offer of resettlement
from the third country. The Departments believe that aliens should
reasonably be required to pursue settlement opportunities when fleeing
persecution and entering a new country, rather than forum shopping for
their destination. See Matter of A-G-G-, 25 I&N Dec. at 503 (explaining
the purpose of the firm resettlement bar ``is to limit refugee
protection to those with nowhere else to turn''). This requirement is
also supported by the fact that, as discussed in the NPRM, 43
additional countries have signed the Refugee Convention since 1990,
evincing an increasing ability of an alien to find safe haven outside
his or her home country. See 85 FR at 36285-86 & n.41. Contrary to
commenters' claims, this first ground does not apply to aliens if the
third country grants only temporary or unstable statuses. For the first
ground of the firm resettlement bar to apply, the alien must be able to
reside permanently or indefinitely in the third country, and temporary
or unstable statuses would not meet that definition. Similarly, in
order for this first ground to apply to aliens who ``could have''
resided in a permanent or indefinite status, the immigration judge must
make a finding that the alien was eligible for, and otherwise would be
granted, permanent or indefinite status under the laws of the third
country. Moreover, the Departments disagree with commenters that the
rule should retain the exception for aliens who reside in a third
country but have the conditions of their stay ``substantially and
consciously restricted.'' See 8 CFR 1208.15(b) (current). The
Departments note that the language of the current regulation is more
apt to cause confusion because it is not clear why--or perhaps even
how--a country would offer citizenship or permanent legal residence to
someone yet ``substantially and consciously'' restrict that person's
residence. Further, the Departments believe that interpreting the firm
resettlement bar to apply to any type of permanent or indefinite status
advances the goal of limiting asylum forum shopping by persons who have
the ability to live in a third country.
---------------------------------------------------------------------------
\72\ In comparison to the NPRM, this final rule expands the
language in 8 CFR 208.15(a)(1) and 1208.15(a)(1) by breaking the
first ground into three subparagraphs and changing the syntax to
improve readability and clarity and to avoid confusion. The changes
in the final rule are stylistic and do not reflect an intent to make
a substantive change from the NPRM regarding 8 CFR 208.15(a)(1) and
1208.15(a)(1).
---------------------------------------------------------------------------
The second ground captures aliens who are living for an extended
period of more than one year in a third country without suffering
persecution. By living safely in a third country for more than a year
without suffering persecution, the alien has evinced the ability to
live long term in that country and is thereby ``firmly'' resettled as
interpreted by the Departments. The dictionary definition of ``firm''
is ``securely or solidly fixed in place,'' not ``uncertain,'' and ``not
subject to change or revision.'' Firm, Merriam Webster, https://www.merriam-webster.com/dictionary/firm. The Departments believe that
this ground reasonably meets this definition, as an alien who is living
in a third country for more than a year can be considered to be ``fixed
in place'' and not thought to be present in the third country only
temporarily.
Consistent with the purpose of the asylum statute, the Departments
believe that asylum should not be made available to persons who ``have
long since abandoned'' traveling to the United States in their flight
from persecution. See Rosenberg v. Yee Chien Woo, 402 U.S. 49, 57 n.6
(1971). Rather, travel to the United States should be ``reasonably
proximate'' to the flight from persecution and not be interrupted by
``intervening residence in a third country.'' Id.\73\ In including this
ground, the Departments do not believe that legal presence should be a
requirement of firm resettlement, as persons can live indefinitely
without status in a country. For example, according to a 2017 study,
the median duration of residence for the United States' undocumented
population is approximately 15 years. See Pew Research Center, Mexicans
decline to less than half the U.S. unauthorized immigrant population
for the first time (June 12, 2019), https://www.pewresearch.org/fact-tank/2019/06/12/us-unauthorized-immigrant-population-2017/. It is
reasonable to conclude that such persons should be considered ``firmly
resettled'' in the United States and do not intend to live in the
United States only temporarily, and by the same reasoning, aliens who
have resided for long periods in other countries--even without legal
presence or status--can similarly be considered ``firmly resettled.''
Further, spending more than a year in a third country shows that the
alien can support himself or herself or has the ability to receive
necessary support. Separately, the Departments note that, contrary to
commenters' concerns, the second ground would not apply to physical
residence in Mexico after an alien was returned to Mexico under the
MPP, because such aliens would already be considered to have arrived in
the United States. Thus, time spent in Mexico solely as a direct result
of returns to Mexico after being placed in MPP will not be considered
for purposes of that specific element of the firm resettlement bar.\74\
---------------------------------------------------------------------------
\73\ By requiring that an alien live in any ``one'' third
country for more than a year before triggering this ground, the
Departments also recognize that it would not necessarily exclude
aliens who make their flight in stages, Yee Chien Woo, 402 U.S. at
57 n.6, as aliens who remain in multiple countries over multiple
years before coming to the United States are unlikely to have their
travel to the United States viewed as ``reasonably proximate'' to
their flight.
\74\ An alien who physically resided voluntarily, and without
continuing to suffer persecution, in Mexico for one year or more
after departing the alien's country of nationality or last habitual
residence and prior to arrival in or entry into the United States
would potentially be subject to the bar, regardless of whether the
alien was placed in MPP upon arrival in the United States.
---------------------------------------------------------------------------
The Departments also recognize that this second ground does not
follow the language of the Refugee Convention or the Refugee Protocol,
which require the alien to be recognized by the third country as
possessing the same rights and obligations as citizens of that country.
See 1951 Convention Relating to the Status of Refugees, Art. 1(E). In
codifying the statutory firm resettlement bar as part of IIRIRA,
however, Congress
[[Page 80365]]
did not include such a requirement, and, as a result, the Departments
have chosen to interpret this ambiguous statutory language as not
requiring the third country to provide the alien with rights comparable
to that of citizens. See Matter of R-A-, 24 I&N Dec. at 631 (explaining
presumption that Congress left statutory ambiguity for the agencies to
resolve (citing Brand X, 545 U.S. at 982)).
The third ground captures aliens who maintain, or maintained and
then later renounced, citizenship in a third country and were present
in that country after fleeing their home country. By possessing
citizenship in a third country and being physically present in that
country, the alien has established that he or she has the ability to
live with full citizenship rights in a third country, negating his or
her need to apply for asylum in the United States. In response to a
commenter's concerns about the timing of the alien's presence in the
third country, the Departments clarify that the physical presence in
the third country must occur after the alien leaves the home country
where the alleged persecution occurred or where the well-founded fear
of persecution would occur and before arriving in the United States.
Regarding commenters' concerns about the burden of proof, the
Departments note that the existing burden framework outlined by the BIA
is, at the least, not required by statute and appears to be in
significant tension with existing regulations.\75\ The burden
associated with the firm resettlement bar as applied in removal
proceedings is clarified in the existing language of 8 CFR 1240.8(d),
which provides that the respondent has the burden of establishing
eligibility for any requested benefit or privilege. That regulation
then states that, if ``the evidence indicates that one or more of the
grounds for mandatory denial'' of relief may apply, the alien has the
burden of proving that such grounds do not apply. 8 CFR 1240.8(d). The
existing regulation is thus clear that, if the evidence indicates that
the firm resettlement bar may apply, then an applicant has the burden
of proving that it does not. Although the evidence in the record must
itself support the applicability of a bar, the regulations do not
specify who must introduce that evidence, and relevant evidence may
come from either party. Moreover, 8 CFR 1240.8(d) does not specify who
may raise an issue of eligibility, only that the issue may be raised
when the evidence indicates that a ground should apply. Because it is
illogical to expect an alien applying for asylum to raise the issue
that he or she is barred from receiving asylum, the rule appropriately
acknowledges the reality that either DHS or the immigration judge may
raise the issue based on the evidence, regardless of who submitted the
evidence.
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\75\ The Board's framework also contains internal tension that
has resulted in confusion on this point. In Matter of A-G-G-, the
Board indicated that DHS bears the burden of making a prima facie
showing that an offer for firm resettlement exists and will
typically do so through the submission of documentary evidence.
Matter of A-G-G-, 25 I&N Dec. at 501 (``DHS should first secure and
produce direct evidence of governmental documents indicating an
alien's ability to stay in a country indefinitely.''). It then went
on to say, however, that prima facie evidence may already be part of
the record as evidence, including testimony, which is typically
offered by a respondent, not DHS. Id. at 502 n.17. Consequently,
immigration judges may become confused about how to apply the firm
resettlement bar in cases in which the evidence of record submitted
by a respondent, including the respondent's testimony, indicates
that the bar may apply but in which DHS has not affirmatively
produced its own evidence of firm resettlement. This rule resolves
that tension, reaffirms that immigration judges should follow the
requirements of 8 CFR 1240.8 as appropriate, and reiterates that
evidence in the record may raise the applicability of 8 CFR 1240.8
regardless of who submitted the evidence.
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Similarly, although the immigration judge must determine whether
the evidence indicates that the firm resettlement bar may apply--and,
thus, whether the alien bears the burden of proving that it does not
apply--that determination is simply an evidentiary one and does not
place any burden on DHS. As noted, evidence that ``indicates that one
or more of the grounds for mandatory denial of the application for
relief may apply [e.g., the firm resettlement bar],'' 8 CFR 1240.8(d),
may be in the record based upon submissions made by either party; the
regulation requires only that evidence be in the record, not that it be
submitted by DHS. Put more simply, the regulations do not place an
independent burden on DHS to establish a prima facie case. This
conclusion is underscored by other regulations that, in contrast,
specify when DHS is required to assume an evidentiary burden. See,
e.g., 8 CFR 208.13(b)(1)(ii) (``Burden of proof. In cases in which an
applicant has demonstrated past persecution under paragraph (b)(1) of
this section, [DHS] shall bear the burden of establishing by a
preponderance of the evidence the requirements of paragraphs
(b)(1)(i)(A) or (B) of this section.''). Placing a prima facie burden
on DHS would be contrary to the relevant regulatory scheme and would
unnecessarily tax the agency's limited resources without any statutory
or regulatory justification, especially when ``[t]he specific facts
supporting a petitioner's asylum claim . . . are peculiarly within the
petitioner's grasp.'' Angov, 788 F.3d at 901. To the extent that
commenters asserted that circuit case law conflicts with the
Departments' rule, such conflicts would warrant re-evaluation in
appropriate cases by the circuits under well-established principles.
See Brand X, 545 U.S. at 982. Further, as noted in the NPRM, 85 FR at
36286, the rule overrules prior BIA decisions that are inconsistent, in
accordance with well-established principles. See Encino Motorcars, LLC,
136 S. Ct. at 2125 (``Agencies are free to change their existing
policies as long as they provide a reasoned explanation for the
change.'' (citing Brand X, 545 U.S. at 981-82)).
In response to one commenter's concerns, the burden of proof
provision does not allow DHS to make the final determination on whether
the firm resettlement bar applies in EOIR proceedings; that authority
continues to reside with DOJ for aliens whose asylum applications are
referred for review by an immigration judge. See 8 CFR 208.14(c)(1),
1003.10(b), 1240.1(a)(1)(ii).
In response to concerns about imputing parents' firm resettlement
to their minor children, the Departments note that the BIA has imputed
parental attributes to children under other INA provisions on multiple
occasions. See, e.g., Holder, 566 U.S. at 595-96 (2012) (describing
various provisions of the Act in which parental attributes are imputed
to children). Moreover, as noted in the NPRM, 85 FR at 36286, although
the Departments have not previously established a settled policy
regarding the imputation of the firm resettlement of parents to a
child, the imputation in this rule is consistent with both case law and
recognition of the practical reality that a child generally cannot form
a legal intent to remain in one place. See, e.g., Matter of Ng, 12 I&N
Dec. 411, 412 (Reg'l Comm'r 1967) (firm resettlement of father is
imputed to a child who resided with his resettled family); see also
Vang v. INS, 146 F.3d 1114, 1116-17 (9th Cir. 1998) (``We follow the
same principle in determining whether a minor has firmly resettled in
another country, i.e., we look to whether the minor's parents have
firmly resettled in a foreign country before coming to the United
States, and then derivatively attribute the parents' status to the
minor.'').
Here, it is reasonable to assume that minor children who are
traveling with their parents would remain with their parents in any
third country and, therefore, should also be subject to the firm
resettlement bar. Moreover, the rule provides an exception when the
alien
[[Page 80366]]
child can establish that he or she could not have derived any permanent
legal immigration status or any non-permanent but indefinitely
renewable temporary legal immigration status (such as asylee, refugee,
or similar status) from his or her parent.\76\ See 85 FR at 36294; 8
CFR 208.15(b), 1208.15(b).
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\76\ The Department's experience in administering the firm
resettlement bar indicates that cases in which a parent's firm
resettlement would not be imputed to a minor child would be rare.
Even in those rare cases, however, the Departments' use of child-
appropriate procedures, as discussed elsewhere in the rule, which
take into account age, stage of language development, background,
and level of sophistication, would assist the child in ensuring that
the child's claim is appropriately considered. See, e.g., USCIS,
Interviewing Procedures for Minor Applicants (Aug. 6, 2020), https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/minor-children-applying-for-asylum-by-themselves.
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The Departments acknowledge comments noting that the NPRM altered
the definition of ``firm resettlement'' applicable to asylum
applicants, but did not alter the definition applicable to refugee
admission applicants, which is a distinction the Departments noted in
the NPRM. 85 FR at 36285 n.40. The Departments did not propose to
change 8 CFR 207.1(b) in the NPRM, see id., and they do not believe
such a change is warranted in this final rule, notwithstanding
commenters' concerns regarding the two definitions.
Although the statutory provisions applying the firm resettlement
bar in the refugee and asylum contexts are virtually identical, ``[a]
given term in the same statute may take on distinct characters from
association with distinct statutory objects calling for different
implementation strategies.'' Envtl. Def. v. Duke Energy Corp., 549 U.S.
561, 574 (2007). The United States Refugee Admissions Program
(``USRAP'') and the asylum system serve distinct missions and
populations and, thus, warrant different approaches. The asylum statute
is not designed ``to provide [applicants] with a broader choice of safe
homelands, but rather, to protect [refugees] with nowhere else to
turn.'' Matter of B-R-, 26 I&N Dec. at 122 (quotation marks omitted).
In contrast, the USRAP has long focused on resolving protracted refugee
situations and providing relief to refugees who have not been able to
find a durable solution to their need for protection in the country of
first flight. Moreover, due to the lengthy referral, vetting, and
application process in the refugee resettlement program, see generally
USCIS, Refugee Processing and Security Screening (June 3, 2020),
https://www.uscis.gov/humanitarian/refugees-and-asylum/refugees/refugee-processing-and-security-screening, time spent in a third
country or otherwise awaiting overseas resettlement may not necessarily
indicate that an alien was firmly resettled in the country hosting such
populations.
Further, as a program explicitly addressing persons in foreign
countries--rather than a form of relief available to aliens who arrive
at or are inside the United States--the USRAP implicates issues of
foreign relations and diplomacy in ways different than the asylum
program. Additionally, although the current regulatory definitions of
``firm resettlement'' are similar, compare 8 CFR 207.1(b), with 8 CFR
208.15 and 1208.15, they are not identical. Rather, the definition
applicable to refugee admission applicants requires that the alien
entered the country of putative resettlement ``as a consequence of his
or her flight from persecution,'' 8 CFR 207.1(b), whereas the
definition applicable to asylum applicants indicates that entry into a
country that was a necessary consequence of flight from persecution is
one element of a potential exception to the general definition of
``firm resettlement.'' In other words, existing regulations already
recognize distinctions in the definitions applicable to the two
programs.
In short, although the Departments acknowledge commenters' concerns
about the two different definitions, they do not believe changes to 8
CFR 207.1(b) are warranted at the present time. Nevertheless, the
Departments do expect to study the issue closely and, if appropriate,
may propose changes at a future date.
Finally, the Departments are noting two additional changes that the
final rule makes regarding the issue of firm resettlement. First,
consistent with the Departments' understanding that time spent in
Mexico solely as a direct result of being returned to Mexico pursuant
to section 235(b)(2)(C) of the Act or of being subject to metering
would not be counted for purposes of that specific element of the firm
resettlement bar, that point is being clarified explicitly in this
final rule. Second, EOIR is making a conforming change to 8 CFR
1244.4(b) to align it with the both the appropriate statutory citation
and the corresponding language in 8 CFR 244.4(b). Aliens described in
INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A), including those subject to
the firm resettlement bar contained in INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi), are ineligible for TPS. That statutory ineligibility
ground is incorporated into regulations in both chapter I and chapter V
of title 8; however, while the title I provision, 8 CFR 244.4(b), cites
the correct statutory provision, INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi), the title V provision, 8 CFR 1244.4(b), maintains an
outdated reference to an incorrect statutory provision. The final rule
corrects that outdated reference.
4.9. ``Rogue Officials''/``Color of Law''
Comment: As an initial matter, commenters asserted that the terms
``color of law'' and ``official acting in his or her official
capacity'' are not ambiguous and therefore are not open to agency
interpretation. Commenters asserted that the rule seeks to codify the
BIA's decision in Matter of O-F-A-S-, 27 I&N Dec. 709 (BIA 2019),
vacated by 28 I&N Dec. 35, but that the standard set out in Matter of
O-F-A-S- is an impossible burden. Specifically, commenters averred that
``if an official claims to be acting in an official capacity, is
wearing an official uniform, or otherwise makes it known to the
applicant that [he or she is] a government official, a CAT applicant
would have no reason to know whether the official is acting lawfully or
as a `rogue' official.'' Commenters argued that to meet his or her
burden, an applicant would have to obtain detailed information from a
government official who has tortured or threatened him or her in order
to establish that the actor was not acting in a rogue capacity.
Commenters also argued that the phrase ``under color of law'' calls
for a more nuanced determination than the analysis required by the
proposed regulation or the BIA's decision in Matter of O-F-A-S- would
indicate. Quoting Screws v. United States, 325 U.S. 91, 111 (1945),
commenters stated that ``[i]t is clear that under `color' of law means
under `pretense' of law . . . . If, as suggested, the statute was
designed to embrace only action which the State in fact authorized, the
words `under color of any law' were hardly apt words to express the
idea.'' Following this analysis, commenters asserted that any proposed
rule must emphasize that acting ``under color of law'' does not require
the government official to be on duty, following orders, or to be
acting on a matter of official government business.
Commenters similarly claimed that the proposed definition of
``rogue official'' is contrary to Federal and state jurisprudence
because the proposed rule dismisses and invalidates the entire concept
of ``color of law'' as being synonymous with ``acting in his or her
official capacity.'' Commenters asserted that the Supreme Court views
the terms as interchangeable because the
[[Page 80367]]
``traditional definition of acting under color of state law requires
that the defendant . . . have exercised power `possessed by virtue of
state law and made possible only because the wrongdoer is clothed with
the authority of state law.' '' West v. Atkins, 487 U.S. 42, 49 (1988)
(quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
Commenters explained that, in alignment with the Supreme Court's
interpretation, some circuits have defined ``color of law'' to mean the
``misuse of power, possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state
law.'' See Iruegas[hyphen]Valdez v. Yates, 846 F.3d 806, 812-13 (5th
Cir. 2017) (finding that the public official in question need not be
high[hyphen]level or follow ``an officially sanctioned state action'');
Garcia v. Holder, 756 F.3d 885, 891-92 (5th Cir. 2014);
Ramirez[hyphen]Peyro v. Holder, 574 F.3d 893, 900-01 (8th Cir. 2009).
Citing the Eighth Circuit, commenters asserted that this means that
``the focus is whether the official uses their position of authority to
further their actions, even if for `personal' motives.''
Ramirez[hyphen]Peyro, 574 F.3d at 900-01. Commenters further asserted
that the color-of-law analysis should be one of ``nexus''--i.e., ``does
the conduct relate to the offender's official duties?''
Commenters further quoted Ramirez-Peyro, 574 F.3d at 901, stating
that ``it is not contrary to the purposes of the [Convention] and the
under-color-of-law standard to hold Mexico responsible for the acts of
its officials, including low-level ones, even when those officials act
in contravention of the nation's will and despite the fact that the
actions may take place in circumstances where the officials should be
acting on behalf of the state in another, legitimate, way.'' Quoting
Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004), commenters
asserted that, ``when it is a public official who inflicts severe pain
or suffering, it is only in exceptional cases that we can expect to be
able to conclude that the acts do not constitute torture by reason of
the official acting for purely private reasons.'' Commenters also cited
a recent decision from the Ninth Circuit Court of Appeals, in which the
court held that even a rogue official is still a public official for
purposes of the CAT. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1184
(9th Cir. 2020) (``We rejected BIA's `rogue official' exception as
inconsistent with Madrigal [, 716 F.3d at 506.]'').
Ultimately, commenters argued that the CAT requires protection for
those that have suffered any act of torture at the hands of state
officials, even ``rogue officials,'' as such evidence demonstrates that
the foreign state cannot or will not protect the applicant from
torture. Moreover, the commenter asserted that it does not matter that
some countries cannot control large numbers of rogue officials. See,
e.g., Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1185 (7th Cir. 2015)
(``It's simply not enough to bar removal if the [Mexican] government
may be trying, but without much success, to prevent police from
torturing citizens at the behest of drug gangs.''). Commenters averred
that the correct inquiry in CAT claims is whether a government official
committed torture, not whether the applicant can demonstrate that the
official was not acting in a ``rogue capacity.''
Commenters stated that the proposed changes to the ``rogue
official'' standard also conflict with the standard established by the
Attorney General in Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020),
which was issued subsequent to the proposed rule's publication. For
example, at least one commenter stated that the Attorney General
``rejected'' the use of the term ``rogue official,'' while the proposed
rule would codify the use of the same term. Commenters further stated
that the Attorney General's decision in Matter of O-F-A-S- created
difficulty in providing comment on the proposed rule because it changed
the state of the law that the rule would affect.\77\
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\77\ To the extent commenters' concerns with the ability to
comment may relate to the period of time provided for comment, the
Departments responses are set forth below in Section II.C.6.3 of
this preamble.
---------------------------------------------------------------------------
Commenters argued that exempting public officials from the concept
of acquiescence in instances in which the public official ``recklessly
disregarded the truth, or negligently failed to inquire'' seems
indistinguishable from ``willful blindness,'' a term recognized by the
Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth
Circuits in the CAT analysis context. See, e.g., Khouzam, 361 F.3d at
170-71; Myrie v. Att'y Gen. of U.S., 855 F.3d 509, 517 (3rd Cir. 2017),
Romero-Donado v. Sessions, 720 Fed. App'x 693, 698 (4th Cir. 2018);
Iruegas-Valdez v. Yates, 846 F.3d 806, 812 (5th Cir. 2017); Torres v.
Sessions, 728 Fed. App'x 584, 588 (6th Cir. 2018); Lozano-Zuniga v.
Lynch, 832 F.3d 822, 831 (7th Cir. 2016); Fuentes-Erazo v. Sessions,
848 F.3d 847, 852 (8th Cir. 2017); Zheng v. Ashcroft, 332 F.3d 1186,
1194-95 (9th Cir. 2003); Medina-Velasquez v. Sessions, 680 Fed. App'x
744, 750 (10th Cir. 2017). Commenters asserted that the rule should
instead codify this ``near-universal standard.'' Further, commenters
recommended codifying court decisions that have found government
acquiescence even where parts of government have taken preventive
measures. See, e.g., Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1139
(7th Cir. 2015) (noting it is not required to find the entire Mexican
government complicit); De La Rosa v. Holder, 598 F.3d 103, 110 (2d Cir.
2010).
In addition, some commenters argued that the standard to
demonstrate acquiescence is unreasonable because applicants would be
required to demonstrate the legal duties of a government official who
failed to act and also demonstrate whether the official was charged
with preventing those actions but failed to act. Commenters asserted
this would be an impossible standard to meet. Commenters also contended
that the proposed rule's reliance on the Model Penal Code is irrelevant
to what might occur in a foreign country.
Commenters argued that the proposed rule's amendments to 8 CFR
208.18(a)(1), (7) and 1208.18(a)(1), (7) will prevent many individuals
from meeting the burden to establish eligibility for protection under
the regulations issued pursuant to the legislation implementing the
CAT. Commenters were concerned that an individual would be unable to
determine that an officer is a rogue officer when ``every discernable
fact (including but not limited to uniforms, weapons, badges, police
cars, etc.) indicates the officer is legitimate.'' Therefore,
commenters asserted, requiring this kind of detailed information would
be unreasonable or impossible. Commenters similarly asserted that the
requirement that an applicant demonstrate that the government official
who has inflicted torture did so under color of law and is not a rogue
official ignores the actual circumstances under which people flee.
Commenters also expressed concern that individuals who were
tortured would have no recourse because they would be unable to report
the rogue official to other potentially rogue officials. For example,
commenters stated that, in many countries (such as the Democratic
Republic of the Congo), members of the police or military are
intentionally organized into paramilitary groups so that the government
can deny responsibility for human rights violations. Commenters
asserted that, in such circumstances, individuals who are subjected to
harm or in danger of such harm would face an insurmountable burden of
proof.
[[Page 80368]]
Commenters asserted that it is extremely rare for a government to
openly acknowledge that it condones torture. Rather, when evidence of
torture occurs, the government will claim the perpetrator was a ``bad
apple'' who acted on his or her own. Commenters asserted that this rule
would accept the ``bad apple'' excuse on its face, preventing torture
victims from receiving protection. Similarly, commenters asserted that
most governments would not publicly admit that they torture their
citizens and that, without such admissions, it would be difficult for
victims of torture to prove that the injury was caused by a government
official acting in an official capacity as opposed to on the official's
private initiative. Commenters also asserted that the proposed changes
appear specifically to restrict typical claims from Central America,
where individuals are ``tortured at the hands of non-state actors such
as gangs and cartels and where government actors are frequently
complicit in these actions.'' Finally, one commenter asserted that, if
an agency is going to demand such a high burden to establish torture,
the agency should be the one to take on the burden of demonstrating the
difference because the agency has more capacity to obtain the required
information than the individual requesting the relief.
Response: The Departments disagree with commenters' assertions that
the term ``acting in an official capacity'' is unambiguous and thus not
subject to agency interpretation, as multiple decisions from the BIA,
the Attorney General, and circuit courts attest. As demonstrated most
recently by the Attorney General's decision in Matter of O-F-A-S-, 28
I&N Dec. at 36-37, the term ``acting in an official capacity'' is a
term that has been subject to different interpretations since it was
implemented in the regulations. See Regulations Concerning the
Convention Against Torture, 64 FR 8490 (Feb. 19, 1999). As explained by
the Attorney General subsequent to the NPRM, whether an individual
acted in an official capacity has been the subject of multiple
inaccurate or imprecise formulations. Matter of O-F-A-S-, 28 I&N Dec.
at 36-37. On the one hand, then-Attorney General Ashcroft first
articulated that the official capacity requirement means torture
``inflicted under color of law.'' Id. at 36. Subsequently, every
Federal court of appeals to consider the questions has read the
standard in the same manner. Id. at 37 (citing Garcia, 756 F.3d at 891;
United States v. Belfast, 611 F.3d 783, 808-09 (11th Cir. 2010);
Ramirez-Peyro, 574 F.3d at 900). However, at the same time, some
Federal courts have viewed immigration judges as applying an amorphous,
different concept of ``rogue official,'' which has not been accepted by
circuit courts. Id. (citing Federal court of appeals decisions
reviewing immigration court decisions applying an alleged ``rogue
official'' analysis).
As the NPRM made clear, there is not a ``rogue official'' exception
per se for CAT protection. 85 FR at 36286. Rather, ``rogue official''
is simply a shorthand label for an official who is not acting under
color of law, and the actions of such an official are not a basis for
CAT protection because the individual is not acting in an official
capacity. The Attorney General confirmed this view that a ``rogue
official'' is one who is not acting under color of law. Matter of O-F-
A-S-, 28 I&N Dec. at 38 (``To the extent the Board used `rogue
official' as shorthand for someone not acting in an official capacity,
it accurately stated the law. By definition, the actions of such
officials would not form the basis for a cognizable claim under the
CAT.''). Thus, there is no longer any confusion regarding the
definition of a ``rogue official,'' and, consistent with the rule, such
an official is one who is not acting under color of law.
Nevertheless, as the Attorney General also noted, ``continued use
of the `rogue official' language by the immigration courts going
forward risks confusion . . . because `rogue official' has been
interpreted to have multiple meanings.'' Id. Accordingly, the
Departments are removing that term from the final rule to avoid any
further confusion. Its removal, however, does not result in any
substantive change to the rule. Regardless of whether an official who
is not acting in an official capacity is described as a ``rogue
official,'' the actions of such an official are not performed under
color of law and, thus, do not form the basis of a cognizable claim
under the CAT.
Regarding commenters' concerns about the Attorney General's
decision in Matter of O-F-A-S-, the Attorney General determined that it
was necessary to provide a clarification of the ambiguous term ``acting
in an official capacity'' without waiting for the Departments' NPRM to
be finalized. That he issued his decision does not prevent the
Departments from codifying that definition subsequently.
Moreover, the Departments disagree that the Attorney General's
decision in Matter of O-F-A-S-, 28 I&N Dec. at 35, conflicts with the
language of this rule. In Matter of O-F-A-S-, the Attorney General
explained that ``acting in an official capacity'' means actions
performed ``under color of law.'' Id. This rule amends the current
regulatory language to clarify that the conduct supporting a CAT claim
must be carried out under color of law, which is fully consistent with
the Attorney General's decision. See 8 CFR 208.18(a)(1), 1208.18(a)(1)
(expressly using the phrase ``under color of law'').\78\ Therefore, the
regulatory text articulates that the test for determining whether an
individual acted in an official capacity is whether the official acted
under color of law. See 8 CFR 208.18(a)(1), 1208.18(a)(1).
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\78\ In clarifying this definition of a public official as one
acting under color of law, the rule also makes clear that, for
purposes of the CAT regulations, pain or suffering inflicted by, or
at the instigation of or with the consent or acquiescence of, a
public official is not torture unless the act is done while the
official is ``acting in his or her official capacity. 85 FR at
36287; 8 CFR 208.18(a)(1) and 1208.18(a)(1). The Departments
recognize that this change departs from the language considered in
Barajas-Romero v. Lynch, 846 F.3d 351, 362-63 (9th Cir. 2017), which
allowed for the consideration of a CAT claim even when the alleged
torture was carried out by a public official not acting in an
official capacity. Nevertheless, the Departments have provided
reasoned explanations for this regulatory change and, thus, can
implement that change in accordance with well-established
principles. See Encino Motorcars, LLC, 136 S. Ct. at 2125
(``Agencies are free to change their existing policies as long as
they provide a reasoned explanation for the change.'').
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This amendment aligns the regulatory language with congressional
intent and circuit case law finding that ``in an official capacity''
means ``under color of law.'' The Senate, in recommending that the
United States ratify the CAT, explicitly stated that ``the Convention
applies only to torture that occurs in the context of governmental
authority, excluding torture that occurs as a wholly private act or, in
terms more familiar in U.S. law, it applies to torture inflicted `under
color of law.' '' S. Exec. Rep. No. 101-30, at 14 (1990). Further, as
stated by the Attorney General in Matter of O-F-A-S-, every Federal
court of appeals to consider the question has held that action ``in an
official capacity'' means action ``under color of law.'' 28 I&N Dec. at
37 (citing Garcia, 756 F.3d at 891; Belfast, 611 F.3d at 808-09;
Ramirez-Peyro, 574 F.3d at 900); see also Ali v. Reno, 237 F.3d 591,
597 (6th Cir. 2001) (adopting the ``under color of law'' standard in an
opinion preceding Matter of Y-L-, 24 I&N Dec. 151).
The Senate's understanding of ``acquiescence'' for purposes of the
CAT was that a finding of acquiescence requires a showing that the
public official was aware of the act and that the public official had a
legal duty to intervene to prevent the act but failed to do so. See S.
Exec. Rep. No. 101-30, at 14 (``In addition, in our view, a public
[[Page 80369]]
official may be deemed to `acquiesce' in a private act of torture only
if the act is performed with his knowledge and the public official has
a legal duty to intervene to prevent such activity.''). As noted in the
NPRM, however, the term ``awareness'' has led to some confusion. See 85
FR at 36287 (citing Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020)).
Commenters asserted that the Departments, rather than creating a new
definition for awareness, should instead codify the ``willful
blindness'' standard as articulated by the circuit courts of appeals.
But the final rule does just that: As noted in the NPRM, the
Departments proposed to clarify that, in accordance with decisions from
several courts of appeals and the BIA, `` `awareness'--as used in the
CAT `acquiescence' definition--requires a finding of either actual
knowledge or willful blindness.'' 85 FR at 36287; see also 8 CFR
208.18(a)(1), 1208.18(a)(1). The Departments, however, seeking to avoid
further ambiguity, further define the term ``willful blindness'' to
mean that the public official or other person acting in an official
capacity was ``aware of a high probability of activity constituting
torture and deliberately avoided learning the truth.'' 85 FR at 36287.
The Departments further clarify that it is not enough that such a
public official acting in an official capacity or other person acting
in an official capacity was ``mistaken, recklessly disregarded the
truth, or negligently failed to inquire.'' Id.
As explained in the NPRM, the Departments' definition of
``acquiescence'' aligns with congressional intent to require both an
actus reus and a mens rea. Id. The Senate, during ratification of the
CAT, included in its list of understandings the two elements required
for a finding of acquiescence: Actus reus and mens rea. See Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, Treaty Doc. 100-20: Hearing Before the S. Comm. on Foreign
Relations, S. Hrg. No. 101-718, 101st Cong., 2d Sess. 14 (1990) (``[T]o
be culpable under the [CAT] . . . the public official must have had
prior awareness of [the activity constituting torture] and must have
breached his legal responsibility to intervene to prevent the
activity.'' (statement of Mark Richard, Deputy Assist Att'y Gen.,
Criminal Division, Department of Justice)); U.S. Senate Resolution of
Advice and Consent to Ratification of the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, 136
Cong. Rec. 36198 (1990). The definition further aligns with subsequent
understandings that reduced the requirement from knowledge to mere
awareness. See Zheng, 332 F.3d at 1193 (``The [Senate Committee on
Foreign Relations] stated that the purpose of requiring awareness, and
not knowledge, `is to make it clear that both actual knowledge and
`willful blindness' fall within the definition of the term
`acquiescence.' '').
Regarding commenters' assertions that the proposed rule would
create a burden that would be impossible for an applicant to meet, the
Departments note that, currently, applicants must still demonstrate a
legal duty and that this requirement does not change with this final
rule. Even when applying the ``willful blindness'' standard articulated
by various circuit courts of appeals, the applicant must demonstrate a
legal duty and that the government official breached that legal duty.
See, e.g., Khouzam, 361 F.3d at 171 (``From all of this we discern a
clear expression of Congressional purpose. In terms of state action,
torture requires only that government officials know of or remain
willfully blind to an act and thereafter breach their legal
responsibility to prevent it.'').
Regarding commenters' concerns about the burden applicants would
have in establishing that an official was not a rogue official, the
Departments reiterate that this rule codifies the analysis that, for an
individual to be acting in an official capacity, he or she must be
acting under color of law. As stated above, this standard aligns with
the standard required by the Attorney General in Matter of O-F-A-S-, as
well as the various circuit courts of appeals to have considered the
issue. Therefore, the burden continues to require that an applicant
demonstrate that an individual acted under color of law to demonstrate
eligibility. The final rule does not raise or change the burden on the
applicant, but merely provides clarity on the analysis. Moreover, the
NPRM lists the main issues to consider in determining whether an
official was acting under the color of law: Whether government
connections provided the officer access to the victim, or to his
whereabouts or other identifying information; whether the officer was
on duty and in uniform at the time of his conduct; and whether the
officer threatened to retaliate through official channels if the victim
reported his conduct to authorities. 85 FR at 36287. The Departments
believe these issues would be known by the alien, who could at least
provide evidence in the form of his or her personal testimony if other
witnesses or documents were unavailable. See 8 CFR 1208.16(c)(2) (``The
testimony of the applicant, if credible, may be sufficient to sustain
the burden of proof [for a claim for protection under the CAT] without
corroboration.'').
5. Information Disclosure
Comment: Commenters raised concerns that the rule's confidentiality
provisions violate asylum seekers' right to privacy in their asylum
proceedings, are ``expansive and highly concerning,'' and would put
asylum seekers at ``grave risk of harm.'' Commenters were particularly
concerned about cases involving gender-based violence. Commenters
explained that broad disclosure language would deter asylum seekers
from pursuing relief or revealing details of their alleged persecution
for fear that their persecutor would learn about their asylum claim and
subject them or their families to further harm. This fear, according to
commenters, would be compounded by the fact that persecutors could
potentially learn such information online without needing to be
physically present in the United States. For example, commenters were
concerned that disclosures in Federal litigation could be accessed by
anyone because the litigation is public record.
One commenter noted that the exception for state or Federal
mandatory reporting requirements at 8 CFR 208.6(d)(1)(iii) and
1208.6(d)(1)(iii) is ``completely open ended and provides no safeguards
against publication'' to the public. Another commenter raised concerns
about the exception allowing for an asylum application to be filed in
an unrelated case as evidence of fraud. The commenter explained that,
in practice, this would mean that information from one applicant's case
would be accessible to another applicant, potentially putting the
asylum applicant in danger.
Response: The Departments are fully cognizant of the need to
protect asylum seekers, as well as their relatives and associates in
their home countries, by preventing the disclosure of information
contained in or pertaining to their applications. There are specific
situations, however, in which the disclosure of relevant information is
necessary to protect the integrity of the system, to ensure that those
engaged in fraud do not obtain benefits to which they are not entitled,
and to ensure that unlawful behavior is not inadvertently and
needlessly protected. The existing confidentiality provisions do not
provide for an absolute bar on disclosure, but even their exceptions
may encourage fraud or criminal behavior. See Angov, 788 F.3d at 901
[[Page 80370]]
(``This points to an unfortunate reality that makes immigration cases
so different from all other American adjudications: Fraud, forgery and
fabrication are so common--and so difficult to prove--that they are
routinely tolerated.''). Ultimately, there is no utility in protecting
a false or fraudulent asylum claim, in restricting access to evidence
of child abuse, or in restricting access to evidence that may prevent a
crime, and the rule properly calibrates those concerns as outweighing
the blunt shield of confidentiality for an assortment of unlawful
behaviors that exists under the current regulations.
Here, the Departments have determined that additional, limited
disclosure exceptions are necessary to protect the integrity of
proceedings, to ensure that other types of criminal activity are not
shielded by the confidentiality provisions, and to ensure that the
government can properly defend itself in relevant proceedings. By their
text, these additional disclosure exceptions are limited to specific
circumstances in which the disclosure of such information is necessary
and the need for the disclosure outweighs countervailing concerns. This
rule includes clarifying exceptions explicitly allowing release of
information as it relates to any immigration proceeding under the INA
or legal action relating to the alien's immigration or custody status.
This will ensure that the government can provide a full and accurate
record in litigating such proceedings.
The rule also includes provisions for protecting the integrity of
proceedings and public safety. These include provisions aimed at
detecting fraud by allowing the Departments to submit similar asylum
applications in unrelated proceedings; pursuing state or Federal
criminal investigations, proceedings, or prosecutions; and protecting
against child abuse. For example, the fraud exception will allow the
Departments to consider potentially fraudulent similar applications or
evidence in an immigration proceeding in order to root out non-
meritorious claims, which will in turn allow the Departments to focus
limited resources on adjudicating cases with a higher chance of being
meritorious. See, e.g., Angov, 788 at 901-02 (``[Immigration f]raud,
forgery and fabrication are so common--and so difficult to prove--that
they are routinely tolerated. . . . [I]f an alien does get caught lying
or committing fraud, nothing very bad happens to him. . . .
Consequently, immigration fraud is rampant.'').
Regarding commenters' concerns with the exception to allow
disclosure as required by any state or Federal mandatory reporting
requirements, the Departments note that the exception simply makes
clear that government officials must abide by such laws. This provision
is designed to prevent any inconsistencies and ensure that government
officials comply with any mandatory reporting requirements.
Accordingly, despite commenters' concerns with the breadth of this
provision, the Departments disagree that any limiting language would be
appropriate.
The Departments have considered commenters' concerns that an
applicant's application will be submitted in another proceeding and
thereby be made available to the other applicant, though they note that
existing exceptions already cover ``[t]he adjudication of asylum
applications'' and ``[a]ny United States Government investigation
concerning any . . . civil matter,'' which, arguably, already encompass
the use of applications across proceedings. 8 CFR 208.6(c)(1)(i), (v),
1208.6(c)(1)(i), (v). The Departments are maintaining the exceptions in
the NPRM to ensure clarity on this point and to ensure that existing
regulations are not inappropriately used to shield unlawful behavior.
Because cases involving asylum fraud are ``distressingly common,''
Angov, 788 at 902, the need to root out fraudulent asylum claims
greatly outweighs the concerns raised by commenters. Moreover,
legitimate asylum seekers generally should be unaffected by this
exception. Finally, the Departments reiterate that only ``relevant and
applicable'' information is subject to disclosure under that exception;
thus, rather than an open-ended exception, this exception ensures that
only a limited amount of information is subject to disclosure under
that exception.
Finally, as noted above, the Departments are making conforming
edits to 8 CFR 208.6(a) and (b) and 8 CFR 1208.6(b) to make clear that
the disclosure provisions of 8 CFR 208.6 and 1208.6 apply to
applications for withholding of removal under the INA and for
protection under the regulations implementing the CAT, and not solely
to asylum applications. That point is already clear in 8 CFR 208.6(d)
and 1208.6(d), and the Departments see no reason not to conform the
other paragraphs in those sections for consistency. Relatedly, the
Departments are also making edits to 8 CFR 208.6(a), (b), (d), and (e)
and 8 CFR 1208.6(b), (d), and (e) to make clear that applications for
refugee admission pursuant to INA 207(c)(1), 8 U.S.C. 1157(c)(1), and 8
CFR part 207 are subject to the same information disclosure provisions
as similar applications for asylum, withholding of removal under the
INA, and protection under the regulations implementing the CAT. The
Departments already apply the disclosure provisions to such
applications as a matter of policy and see no basis to treat such
applications differently than those for protection filed by aliens
already in or arriving in the United States.
6. Violates Domestic or International Law
6.1. Violates Immigration and Nationality Act
Comment: Commenters expressed a general belief that the rule
violates the INA, such as by rendering it ``impossible'' or ``near
impossible'' to obtain refugee status.
Multiple commenters stated that it appears the proposed rule is an
``unreasonable interpretation'' of sections 208 and 240 of the INA, 8
U.S.C. 1158 and 1229a, because two members of Congress have issued a
statement in opposition to the rule.
Response: This rule implements numerous changes to the Departments'
regulations regarding asylum and related procedures, including
amendments to the expedited removal and credible fear screening
process, changes to the standards for frivolous asylum application
findings, a provision to allow immigration judges to pretermit
applications in certain situations, codification of standards for
consideration during the review of applications for asylum and for
statutory withholding of removal, and amendments to the provisions
regarding information disclosure. Each of these changes, as discussed
with more specificity elsewhere in Section II.C of this preamble, is
designed to better align the Departments' regulations with the Act and
congressional intent. As also discussed, supra, the rule does not end
asylum or refugee procedures, nor does it make it impossible for aliens
to obtain such statuses. To the contrary, by providing clearer guidance
to adjudicators and allowing them to more effectively consider all
applications, the rule should allow adjudicators to more efficiently
reach meritorious claims.
The Departments disagree that the statements of certain members of
Congress about their personal opinion regarding the rule are sufficient
to demonstrate that the rule is an ``unreasonable interpretation'' of
the Act. Indeed, the statements of certain
[[Page 80371]]
members of Congress in 2020 is not clear evidence of the legislative
intent behind the 1996 enactment of IIRIRA, which established the key
statutory provisions related to this rule.
6.2. Violates Administrative Procedure Act
Comment: Commenters raised concerns that the rule does not comply
with the APA. Commenters alleged that the rule is arbitrary and
capricious under the APA because it does not offer ``reasoned
analysis'' for the proposed changes. Commenters explained that
``reasoned analysis'' requires the Departments to display awareness
that they are changing positions on a policy, to provide a legitimate
rationale for departing from prior policy, and to identify the reasons
for the change and why the change is a better solution to the issue.
In alleging this failure, commenters argued that the Departments
did not analyze or rely on data or other evidence in formulating these
changes. Moreover, commenters also claimed that the Departments did not
consider possible alternatives to the changes and failed to consider
important aspects of the various changes, including the impacts on the
applicants and their communities. Commenters claimed that this rule is
nothing more than a pretext for enshrining anti-asylum seeker
sentiments, as evidenced by the thin or complete lack of justification
for the various changes.
In addition, commenters claimed that this rule overlaps with other
recent rules promulgated by the Departments, including rules involving
asylum and adjusting fee amounts. Commenters claimed that it is
arbitrary and capricious for the Departments to ``carve up [their]
regulatory activity to evade comprehensive evaluation and comment.''
For example, one commenting organization stated that the rule treats
domestic violence differently from another recent rule, in that the
other rule bars relief for persons who have committed gender-based
violence, while this rule bars relief from persons who have survived
gender-based violence.
One commenting organization stated that the Departments are
implementing this rule to enhance their litigating positions before
EOIR and the Federal courts, which the commenter alleged is arbitrary
and capricious where ``there is no legitimate basis for the regulation
other than to enhance the litigating position'' of the Departments,
particularly when the Departments are parties to the litigation.
Response: The Departments disagree that the promulgation of this
rule is arbitrary and capricious under the APA. The APA requires
agencies to engage in ``reasoned decisionmaking,'' Michigan, 576 U.S.
at 750, and directs that agency actions be set aside if they are
arbitrary or capricious, 5 U.S.C. 706(2)(A). This, however, is a
``narrow standard of review'' and ``a court is not to substitute its
judgment for that of the agency,'' Fox Television, 556 U.S. at 513
(quotation marks omitted), but is instead to assess only whether the
decision was ``based on a consideration of the relevant factors and
whether there has been a clear error of judgment,'' Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
Arbitrary and capricious review is ``highly deferential, presuming the
agency action to be valid.'' Sacora v. Thomas, 628 F.3d 1059, 1068 (9th
Cir. 2010). It is ``reasonable for the [agency] to rely on its
experience'' to arrive at its conclusions, even if those conclusions
are not supported with ``empirical research.'' Id. at 1069. Moreover,
the agency need only articulate ``satisfactory explanation'' for its
decision, including ``a rational connection between the facts found and
the choice made.'' Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State
Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983); see also Dep't of
Commerce v. New York, 139 S. Ct. 2551, 2569 (2019) (``We may not
substitute our judgment for that of the Secretary, but instead must
confine ourselves to ensuring that he remained within the bounds of
reasoned decisionmaking.'' (citation and quotation marks omitted)).
Under this deferential standard, and contrary to commenters'
claims, the Departments have provided reasoned explanations for the
changes in this rule sufficient to rebut any APA-related concerns. The
NPRM describes each provision in detail and provides an explanation for
each change. See 85 FR at 36265-88. The Departments explained that
these various changes will, among other things, maintain a streamlined
and efficient adjudication process for asylum, withholding of removal,
and CAT protection; provide clarity in the adjudication of such claims;
and protect the integrity of such proceedings. Id. As noted in Section
II.A of this preamble, the animating principles of the NPRM were to
provide clearer guidance to adjudicators regarding a number of thorny
issues that have caused confusion and inconsistency and even bedeviled
circuit courts; to improve the efficiency and integrity of the overall
system in light of the overwhelming number of cases pending; to correct
procedures that were not working well, including procedures for the
identification of meritless or fraudulent claims; and to provide a
consistent approach for the overall asylum adjudicatory framework in
light of numerous--and often contradictory or confusing--decisions from
the Board and circuit courts regarding multiple important terms that
are not defined in the statute.
For example, the Departments explained that the changes to use
asylum-and-withholding-only proceedings for positive credible fear
findings, to increase the credible fear standard for withholding of
removal and CAT protection claims, to apply certain bars and the
internal relocation analysis in credible fear interviews, to pretermit
legally insufficient asylum applications, and to expand the grounds for
a frivolous asylum finding are all intended to create a more
streamlined and efficient process for adjudicating asylum, withholding
of removal, and CAT protection applications. See 85 FR at 36266-67
(explaining that asylum-and-withholding-only proceedings will ensure a
``streamlined, efficient, and truly `expedited' '' removal process);
id. at 36277 (explaining that the pretermission of legally insufficient
asylum applications will eliminate the need for a hearing); id. at
36273-76 (explaining that frivolous applications are a ``costly
detriment, resulting in wasted resources and increased processing
times,'' and that the new grounds for a finding of frivolousness will
``ensure that meritorious claims are adjudicated more efficiently'' and
will prevent ``needless expense and delay''); id. at 36268-71
(explaining that raising the credible fear standard for withholding and
CAT applications will allow the Departments to more ``efficiently and
promptly'' distinguish between aliens whose claims are more or less
likely to ultimately be meritorious); id. at 36272 (explaining that
applying certain eligibility bars in credible fear interviews will help
to eliminate unnecessary removal delays in section 240 proceedings and
eliminate the ``waste of adjudicatory resources currently expended in
vain'').
Similarly, the Departments also explained in the NPRM that many of
the changes are intended to provide clarity to adjudicators and the
parties, including the addition of definitions and standards for terms
such as ``particular social group,'' ``political opinion,''
``persecution,'' ``nexus,'' and ``internal relocation;'' the
delineation of discretionary factors in adjudicating asylum
applications; the addition of guidance on the meaning of
[[Page 80372]]
``acquiescence'' and the circumstances in which officials are not
acting under color of law in the CAT protection context; and the
clarification of the use of precedent in credible fear review
proceedings. See 85 FR at 36278 (explaining that the rule's definition
of ``particular social group'' will provide ``clearer guidance'' to
adjudicators regarding whether an alleged group exists and, if so,
whether the group is cognizable); id. at 36278-79 (explaining that the
rule's definition of ``political opinion'' will provide ``additional
clarity for adjudicators''); id. at 36280 (explaining that the rule's
definition of ``persecution'' will ``better clarify what does and does
not constitute persecution''); id. at 36281 (explaining that the rule's
definition of ``nexus'' will provide ``clearer guidance'' for
adjudicators to ``uniformly apply''); id. at 36282 (explaining that the
rule's definition of ``internal relocation'' will help create a more
``streamlined presentation'' to overcome the current lack of
``practical guidance''); id. at 36283 (explaining that, for asylum
discretionary determinations, the Departments have not previously
provided general guidance in agency regulations for factors to be
considered when determining whether an alien merits asylum as a matter
of discretion); id. at 36286-87 (explaining that guidance for CAT
acquiescence and for the circumstances in which an official is not
acting under color of law standards is meant to provide clarity because
current regulations ``do not provide further guidance''); id. at 36267
(explaining that the inclusion of language regarding the consideration
of precedent in credible fear review proceedings is intended to provide
a ``clear requirement'').
The Departments also explained that many of the changes are
intended to protect the integrity of proceedings. See 85 FR at 36288
(explaining the expansion of information disclosure is necessary to
protect against ``suspected fraud or improper duplication of
applications or claims''); id. at 36283 (explaining that the inclusion
of a discretionary factor for use of fraudulent documents is necessary
due to concerns that the use of fraudulent documents makes the proper
enforcement of the immigration laws ``difficult'' and ``requires an
immense amount of resources''); id. (explaining that the inclusion of a
discretionary factor for failure to seek asylum or protection in a
transit country ``may reflect an increased likelihood that the alien is
misusing the asylum system''); id. at 36284 (explaining that making
applications that were previously abandoned or withdrawn with prejudice
a negative discretionary factor would ``minimize abuse of the
system'').
The Departments also disagree with commenters that the rule does
not provide support for the specific grounds that would be insufficient
to qualify as a particular social group or to establish a nexus.\79\
The Departments provided numerous citations to BIA and Federal court
precedent that the Departments relied on in deciding to add these
specific grounds. See 85 FR at 36279 (list of cases supporting the
grounds that generally will not qualify as a particular social group);
id. at 36281 (list of cases supporting the grounds that generally will
not establish nexus).
---------------------------------------------------------------------------
\79\ For further discussion regarding the changes related to
particular social groups, see Section II.C.4.1 of this preamble, and
for further discussion regarding the changes related to nexus, see
Section II.C.4.4.
---------------------------------------------------------------------------
In addition to the explicit purposes detailed in the NPRM, the
Departments also considered, contrary to commenters' claims, the
effects that such changes may have on applicants. The Departments noted
that the proposed changes ``are likely to result in fewer asylum grants
annually.'' 85 FR at 36289. Moreover, the Departments recognized that
any direct impacts would fall on these applicants. Id. at 36290. The
Departments acknowledge that these impacts are viewed as ``harsh'' or
``severe'' by commenters, but the Departments also note, as discussed,
supra, that many of the commenters' overall assertions about the
effects of this rule are unfounded or speculative.\80\ In addition, the
Departments made the decision to include the various changes in this
rule because, after weighing the costs and benefits, the Departments
determined that the need to provide additional clarity to adjudicators;
to enhance adjudicatory efficiencies; and to ensure the integrity of
proceedings outweighed the potential costs to applicants, especially
since the changes, particularly those rooted in existing law, would
naturally fall more on applicants with non-meritorious claims. In fact,
the enhanced adjudicatory efficiencies would be expected to allow
adjudicators to focus more expediently on meritorious claims, which
would be a benefit offsetting any costs to those applicants filing non-
meritorious applications. Overall, as shown in the NPRM and the final
rule, the Departments engaged in ``reasoned decision making''
sufficient to mitigate any APA concerns.
---------------------------------------------------------------------------
\80\ The Departments also note that aliens with otherwise
meritorious claims who are denied asylum under genuinely new
principles in the rule--e.g., the new definition of ``firm
resettlement''--may remain eligible for other forms of protection
from removal, such as statutory withholding of removal or protection
under the CAT. Thus, contrary to the assertions of many commenters,
the rule would not result in the ``harsh'' or ``severe'' consequence
of an alien being removed to a country where his or her life would
be in danger.
---------------------------------------------------------------------------
The Departments also disagree with commenters' claim that the
Departments purposefully separated their asylum-related policy goals
into separate regulations in order to prevent the public from being
able to meaningfully review and provide comment. The Departments reject
any assertions that they are proposing multiple rules for any sort of
nefarious purpose. Each of the Departments' rules stand on its own,
includes an explanation of its basis and purpose, and allows for public
comment, as required by the APA. See Little Sisters of the Poor Saints
Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020)
(explaining that the APA provides the ``maximum procedural
requirements'' that an agency must follow in order to promulgate a
rule). To the extent commenters noted some overlap or joint impacts,
however, the Departments regularly consider the existing legal
framework when a specific rule is proposed or implemented. For example,
with respect to the potential impacts of DHS fee changes, DHS conducts
a biennial review of USCIS fees and publishes a Fee Rule that impacts
all populations before USCIS. See, e.g., U.S. Citizenship and
Immigration Services Fee Schedule and Changes to Certain Other
Immigration Benefit Request Requirements, 84 FR 62280, 62282 (Nov. 14,
2019) (explaining that, in accordance with 31 U.S.C. 901-03, USCIS
conducts ``biennial reviews of the non-statutory fees deposited into
the [Immigration Examinations Fee Account]''). It is natural that there
would be some impact on aliens who intend to seek asylum, but any such
change to those fees must be considered with respect to USCIS's overall
fee structure. Thus, any such changes were properly outside the scope
of this rule. Moreover, nothing in any rule proposed by the
Departments, including the NPRM underlying this final rule, precludes
the public from meaningfully reviewing and commenting on that rule.
Finally, commenters are incorrect that the rule is related to
enhancing the government's litigating positions. As explained in the
NPRM and this response section, the Departments detailed a number of
reasons for promulgating this rule, including to increase efficiency,
to provide clarity to adjudicators, and to protect the integrity of
proceedings. To the extent the rule
[[Page 80373]]
corresponds with interpretations of the Act and case law that the
Departments have set forth in other contexts, the Departments disagree
that such correspondence violates the APA. Instead, it shows the
Departments' consistent interpretation and the Departments' intent to
better align the regulations with the Act through this rulemaking.
6.3. 30-Day Comment Period
Comment: Commenters raised concerns with the 30-day comment period,
arguing that the Departments should extend the comment period to at
least 60 days or should reissue the rule with a new 60-day comment
period. Due to the complex nature of the rule and its length,
commenters requested additional time to comment, asserting that such
time is needed to meet APA requirements that agencies provide the
public with a ``meaningful opportunity'' to comment. Commenters also
claimed that the 30-day comment period was particularly problematic due
to the COVID-19 pandemic, which caused disruption and limited staff
capacity for some commenters. Moreover, commenters stated that there
should be no urgency to publish the rule due to the southern border
being ``blocked'' due to COVID-19. Finally, commenters referenced the
companion data collection under the Paperwork Reduction Act, which
allowed for a 60-day comment period.
Response: The Departments believe the 30-day comment period was
sufficient to allow for meaningful public input, as evidenced by the
almost 89,000 public comments received, including numerous detailed
comments from interested organizations. The APA does not require a
specific comment period length, see 5 U.S.C. 553(b), (c), and although
Executive Orders 12866, 58 FR 51735 (Sept. 30, 1993), and 13563, 76 FR
3821 (Jan. 18, 2011), recommend a comment period of at least 60 days, a
60-day period is not required. Federal courts have presumed 30 days to
be a reasonable comment period length. For example, the D.C. Circuit
has stated that, although a 30-day period is often the ``shortest''
period that will satisfy the APA, such a period is generally
``sufficient for interested persons to meaningfully review a proposed
rule and provide informed comment,'' even when ``substantial rule
changes'' are proposed. 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)).
Further, litigation has mainly focused on the reasonableness of
comment periods shorter than 30 days, often in the face of exigent
circumstances. 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). In addition, the Departments are not aware of any
case law holding that a 30-day comment period was insufficient, and the
significant number of detailed public comments is evidence that the 30-
day period was sufficient for the public to meaningfully review and
provide informed comment. See, e.g., Little Sisters of the Poor, 140 S.
Ct. at 2385 (``The object [of notice and comment], in short, is one of
fair notice.'' (citation and quotation marks omitted)).
One commenter noted that the comment period in the rule regarding
the edits to the Form I-589, Application for Asylum and for Withholding
of Removal, was 60 days, while the comment period for the substantive
portions of the rule was only 30 days. In most cases, by statute, the
Paperwork Reduction Act requires a 60-day comment period for proposed
information collections, such as the Form I-589. 44 U.S.C.
3506(c)(2)(A). Although the statute allows an exception for proposed
collections of information contained in a proposed rule that will be
reviewed by the Director of the Office of Management and Budget under
44 U.S.C. 3507, see 44 U.S.C. 3506(c)(2)(B), the Departments sought a
60-day comment period to provide the public with additional time to
comment on the form changes. In contrast, as explained above, there is
no similar statutory requirement for the proposed rule itself.
6.4. Agency Is Acting Beyond Authority
Comment: At least one organization emphasized the Departments'
reliance on Brand X, 545 U.S. at 982, as a justification for the
portions of the rule overruling circuit court decisions relating to
asylum. See 85 FR at 36265, n.1. One organization claimed the
Departments ``ignore[d]'' the Supreme Court's decision in Kisor v.
Wilkie, 139 S. Ct. 2400 (2019), which ``follows the recent trend
towards limiting deference to an agency's interpretation of its own
rules.'' According to the organization, Brand X can be interpreted to
mean that, where statutory or regulatory terms are generally ambiguous
and the agency has not ruled on a particular issue, circuit court law
addressing the issue in question governs only until ``the agency has
issued a dispositive interpretation concerning the meaning of a
genuinely ambiguous statute or regulation.'' The organization also
noted that Chevron deference requires a Federal court to accept an
agency's ``reasonable construction of an ambiguous statute,''
emphasizing that the distinction between ``genuinely ambiguous
language'' and ``plain language'' is crucial. See Chevron, 467 U.S. at
843-44, n.11.
The organization then alleged that the Departments' reliance on
Brand X ``to entirely eviscerate Federal court caselaw'' is misplaced
and contrary to controlling law. According to the organization, the
Departments failed to demonstrate that each instance of the statutory
language they seek to overrule is ``genuinely ambiguous,'' and the
organization cited Kisor, 139 S. Ct. 2400, to support its claim that
deference to ``agency regulations should not be afforded
automatically.'' The organization claimed that Kisor limits the ability
to afford deference unless (1) a regulation is genuinely ambiguous; (2)
the agency's interpretation is reasonable regarding text, structure,
and history; (3) the interpretation is the agency's official position;
(4) the regulation implicates the agency's expertise; and (5) the
regulation reflects the agency's ``fair and considered judgment.'' The
organization contended that the Departments failed to meet these
criteria, alleging that the proposed rule attempts to ``re-write asylum
law rather than interpret the statute.''
Multiple commenters claimed that the rule is in opposition to the
asylum criteria established by Congress and expressed concern that the
rule was drafted without congressional input.
Response: The Departments did not ignore Kisor, 139 S. Ct. 2400.
Kisor examined the scope of Auer deference, which affords deference to
an agency's ``reasonable readings of genuinely ambiguous regulations.''
Id. at 2408 (citing Auer v. Robbins, 519 U.S. 452 (1997)). Here,
ambiguous regulations are not at issue; instead, the Departments
amended the regulations based on their reading of ambiguities in the
statute, in accordance with Congress's presumed intent for the
Departments to resolve these ambiguities. See 85 FR at 36265 n.1
(citing Brand X, 545 U.S. at 982).
The Departments disagree that the rulemaking ``eviscerates'' case
law. As explained in the NPRM, ``administrative agencies are not bound
by prior judicial interpretations of ambiguous statutory
interpretations, because there is `a presumption that Congress, when it
left ambiguity in a statute meant for
[[Page 80374]]
implementation by an agency, understood that the ambiguity would be
resolved, first and foremost, by the agency, and desired the agency
(rather than the courts) to possess whatever degree of discretion the
ambiguity allows.' '' Matter of R-A-, 24 I&N Dec. at 631 (quoting Brand
X, 545 U.S. at 982) (quotation marks and citations omitted); see also
85 FR at 36265 n.1; Ventura, 537 U.S. at 16 (``Within broad limits the
law entrusts the agency to make the basic asylum eligibility decision
here in question. In such circumstances a judicial judgment cannot be
made to do service for an administrative judgment. Nor can an appellate
court intrude upon the domain which Congress has exclusively entrusted
to an administrative agency. A court of appeals is not generally
empowered to conduct a de novo inquiry into the matter being reviewed
and to reach its own conclusions based on such an inquiry.''
(alteration, citations, and quotation marks omitted)). Moreover, ``
`judicial deference to the Executive Branch is especially appropriate
in the immigration context,' where decisions about a complex statutory
scheme often implicate foreign relations.'' Cuellar de Osorio, 573 U.S.
at 56-57 (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)).
Further, the Departments disagree that the rulemaking rewrites
asylum law or that it conflicts with the asylum criteria established by
Congress. Congress statutorily authorized the Attorney General to,
consistent with the statute, make discretionary asylum determinations,
INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A), establish additional
limitations and conditions on asylum eligibility, INA 208(b)(2)(C), 8
U.S.C. 1158(b)(2)(C), and establish other conditions and limitations on
consideration of asylum applications, INA 208(d)(5)(B), 8 U.S.C.
1158(d)(5)(B). The changes made by this rulemaking are consistent with
those congressional directives. Regarding commenters' concerns that the
rule was drafted without congressional input, the Departments once
again point to Congress's statutory delegation of authority to the
Attorney General. See INA 103(g)(1), (2), 8 U.S.C. 1103(g)(1), (2)
(granting the Attorney General the ``authorities and functions under
this chapter and all other laws relating to the immigration and
naturalization of aliens,'' and directing the Attorney General to
``establish such regulations . . . and perform such other acts as the
Attorney General determines to be necessary for carrying out this
section''). Congress, in other words, has already delegated to the
Attorney General the power to promulgate rules such as this one, and no
further congressional input is required.
6.5. Violates Separation of Powers
One organization emphasized that the Departments only have
authority to ``faithfully interpret'' a statute, not to rewrite it. The
organization contended that ``[r]ulemaking is not an opportunity for an
agency to engage in an unauthorized writing exercise that duplicates
the legislative role assigned to Congress.'' Another commenter claimed
there is an ``urgent need'' for checks and balances on the ``power'' of
immigration authorities in the asylum process, alleging that the U.S.
government is allowing ICE and CBP to put lives in danger due to ``lack
of oversight.'' One commenter contended that revising asylum law ``is
not an executive branch function.''
Response: The Departments are not rewriting statutes. As explained
throughout this final rule in various sections, the Departments are
statutorily authorized to promulgate this rule under section
208(b)(1)(A) of the Act, 8 U.S.C. 1158(b)(1)(A) (authority to make
discretionary asylum determinations), section 208(b)(2)(C) of the Act,
8 U.S.C. 1158(b)(2)(C) (authority to establish additional limitations
and conditions on asylum eligibility), and section 208(d)(5)(B) of the
Act, 8 U.S.C. 1158(d)(5)(B) (authority to establish other conditions
and limitations on consideration of asylum applications). In section
103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3), Congress has
conferred upon the Secretary broad authority to administer and enforce
the immigration laws and to ``establish such regulations . . . as he
deems necessary for carrying out his authority'' under the immigration
laws. Under section 103(g)(1), (2) of the Act, 8 U.S.C. 1103(g)(1),
(2), Congress provided the Attorney General with the ``authorities and
functions under this chapter and all other laws relating to the
immigration and naturalization of aliens,'' and directed the Attorney
General to ``establish such regulations . . . and perform such other
acts as the Attorney General determines to be necessary for carrying
out this section.'' Thus, the Departments derive authority to
promulgate this rule from the statute and issued this rule consistent
with the statute, not in contravention of it. Moreover, the Departments
have promulgated this rule in accordance with the APA's rulemaking
process. See 5 U.S.C. 553; see also Sections II.C.6.2, 6.3 of this
preamble.
The Departments also note that, although an agency ``must give
effect to the unambiguously expressed intent of Congress,'' if Congress
``has explicitly left a gap for the agency to fill, there is an express
delegation of authority to the agency to elucidate a specific provision
of the statute by regulation. Such legislative regulations are given
controlling weight unless they are arbitrary, capricious, or manifestly
contrary to the statute.'' Chevron, 467 U.S. at 843-44; see also
Aguirre-Aguirre, 526 U.S. at 424-25 (``It is clear that principles of
Chevron deference are applicable to [the INA]. The INA provides that
`[t]he Attorney General shall be charged with the administration and
enforcement' of the statute and that the `determination and ruling by
the Attorney General with respect to all questions of law shall be
controlling.' . . . In addition, we have recognized that judicial
deference to the Executive Branch is especially appropriate in the
immigration context where officials `exercise especially sensitive
political functions that implicate questions of foreign relations.' ''
(citations omitted)). Congress has clearly spoken in the Act, see INA
208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); INA 208(b)(2)(C), 8 U.S.C.
1158(b)(2)(C); INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B); and INA
103(g)(1), (2), 8 U.S.C. 1103(g)(1), (2), and the Departments properly
engaged in this rulemaking, consistent with 5 U.S.C. 553, to effectuate
that statutory scheme. To the extent that comments disagree with
provisions of the INA, such comments are properly directed to Congress,
not the Departments.
6.6. Congress Should Act
Comment: Some commenters stated that Congress, not the Departments,
must make the sorts of changes to the asylum procedures set out in the
proposed rule. Commenters cited a variety of reasons why these changes
are most appropriately the providence of Congress, including
commenters' belief that the rule would effectively end or eliminate
asylum availability and limit how many asylum seekers would receive
relief annually, the breadth of the changes in the proposed rule, and
alleged inconsistencies between the Act and the rule. Commenters
expressed a belief that changes as significant as those proposed should
be undertaken only by Congress. Other commenters suggested that
Congress should separately enact other legislation to protect asylum
seekers.
Response: As stated above, the Departments issued the proposed
rule, and in turn are issuing this final rule, pursuant to the
authorities provided by
[[Page 80375]]
Congress through the HSA and the Act. INA. See, e.g., INA 103(a)(1) and
(3), (g)(2), 208, 8 U.S.C. 1101(a)(1) and (3), (g)(2), 1158.\81\
Despite commenters' statements, the provisions of the rule are
consistent with these authorities and the Act, as discussed above. See,
e.g., Sections II.C.2, II.C.3, II.C.4, and II.C.6.1 of this preamble.
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\81\ In addition, Congress has authorized the Department to
``provide by regulation for any other conditions or limitations on
the consideration of an application for asylum'' consistent with the
other provisions of the Act. INA 208(d)(5)(B), 8 U.S.C.
1158(d)(5)(B).
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Should Congress enact legislation that amends the provisions of the
Act that are interpreted and affected by this rule, the Departments
will engage in future rulemaking as needed. Commenters' discussion of
specific possible legislative proposals or initiatives, however, is
outside of the scope of this rule.
6.7. Violates Constitutional Rights
Comment: One organization contended that the application of the
``interpersonal'' and ``private'' categories to domestic and gender-
based violence would violate the Equal Protection Clause. The
organization claimed the presumption created by these categories would
have a disproportionate effect on women, who are much more likely than
men to experience violence by an intimate partner.
Another organization alleged that the rule would essentially
prevent women, children, LGBTQ individuals, people of color, survivors
of violence, and torture escapees from obtaining asylum protection,
claiming this violates the ``spirit and letter'' of both the Fifth
Amendment and the Refugee Act of 1980. According to the organization,
the rule is designed to ``eliminate due process'' and create
``impossible new legal standards'' to prevent refugees from obtaining
asylum. One organization emphasized generally that asylum seekers
should not be treated like criminals but should instead be shown
dignity and respect; the organization noted that these individuals
should also be given judicial due process.
Response: The rule makes no classifications prohibited by the Equal
Protection Clause; thus, the commenter's allegation that the rule will
disproportionately affect various groups--women, children, LGBTQ
individuals, people of color, and survivors of violence and torture--is
unfounded. The Departments do not track the factual bases for each
asylum application, and each application is adjudicated on a case-by-
case basis in accordance with the evidence and applicable law.
Moreover, the changes alleged by commenters to have a disparate impact
on discrete groups are ones rooted in existing law as noted in the
NPRM, and commenters provided no evidence that existing law has caused
an unconstitutional disparate impact. For allegations of disparate
impact based on gender, a ``significantly discriminatory pattern'' must
first be demonstrated. Dothard v. Rawlinson, 433 U.S. 321, 329 (1977).
The Departments are unaware of such a pattern, and commenters did not
provide persuasive evidence of one, relying principally on anecdotes
and isolated statistics, news articles, and reports.\82\ Moreover, to
the extent that the NPRM may affect certain groups of aliens more than
others, those effects are a by-product of the intrinsic demographic
distribution of claims, and a plausible equal protection claim will not
lie in such circumstances. See Regents of Univ. of Cal., 140 S. Ct. at
1915-16 (impact of a policy on a population that is intrinsically
skewed demographically does not established a plausible claim of
animus, invidious discrimination, or an equal protection violation).
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\82\ The Departments also note that accepting the commenters'
assertion that the likelihood of women being subject to intimate-
partner violence being greater than that of men necessarily
demonstrates an equal protection violation would, in turn, mean that
other immigration regulations regarding victims of domestic
violence, e.g., 8 CFR 204.2(c), are also unconstitutional because of
their putative disparate impact.
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For allegations of disparate impact based on race, case law has
``not embraced the proposition that a law or other official act,
without regard to whether it reflects a racially discriminatory
purpose, is unconstitutional [s]olely because it has a racially
disproportionate impact. . . . [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.'' Washington, 426 U.S. at 239, 242. No discriminatory
motive or purpose underlies this rulemaking; it does not address race
in any way; \83\ and commenters have not explained--logically, legally,
or otherwise--how the rule would even affect asylum claims based on
persecution because of race.
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\83\ The NPRM did not mention race at all, except when quoting
the five statutory bases for asylum--race, religion, nationality,
political opinion, and membership in a particular social group.
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In regard to allegations that the rule would discriminate against
LGBTQ individuals, children, and survivors of violence or torture, the
Departments reiterate that the rule applies equally to all asylum
seekers. Further, as noted elsewhere, to the extent that the NPRM may
affect certain groups of aliens more than others based on the innate
characteristics of those who file asylum applications, those effects
are a by-product of the intrinsic demographic distribution of claims,
and a plausible equal protection claim will not lie in such
circumstances. See Regents of Univ. of Cal., 140 S. Ct. at 1915-16
(impact of a policy on a population that is intrinsically skewed
demographically does not established a plausible claim of animus,
invidious discrimination, or an equal protection violation).
Relatedly, this rule does not eliminate statutory withholding of
removal or protection under the CAT regulations, through which the
United States continues to fulfill its commitments under the 1967
Refugee Protocol, consistent with the Refugee Act of 1980 and
subsequent amendments to the INA, and the CAT, consistent with FARRA.
See 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,
786 F.3d at 1162 (explaining that Article 3 of the CAT, which sets out
the non-refoulement obligations of parties, was implemented in the
United States by the FARRA and its implementing regulations).
The rule does not eliminate due process. As explained previously in
this rule, due process in an immigration proceeding requires notice and
an opportunity to be heard. See LaChance, 522 U.S. at 266 (``The core
of due process is the right to notice and a meaningful opportunity to
be heard.''). The rule does not eliminate the notice of charges of
removability against an alien, INA 239(a)(1), 8 U.S.C. 1229(a)(1), or
the opportunity for the alien to make his or her case to an immigration
judge, INA 240(a)(1), 8 U.S.C. 1229a(a)(1), or on appeal, 8 CFR
1003.38. Moreover, asylum is a discretionary benefit. See INA 208
(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) (stating that the Departments ``may''
grant asylum''); see also Thuraissigiam, 140 S. Ct. at 1965 n.4 (``A
grant of
[[Page 80376]]
asylum enables an alien to enter the country, but even if an applicant
qualifies, an actual grant of asylum is discretionary.''). The Attorney
General and the Secretary are statutorily authorized to limit and
condition asylum eligibility under section 208(b)(2)(C), (d)(5)(B) of
the Act, 8 U.S.C. 1158(b)(2)(C), (d)(5)(B), by regulation and
consistent with the Act, and 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 50). The Departments properly exercised that
authority in this rulemaking, and that exercise does not implicate due
process claims. Finally, the rule does not treat aliens ``like
criminals,'' as commenters alleged. Aliens retain all due process
rights to which they are entitled under law, and the rule does not
change that situation.
6.8. Violates International Law
Comment: Commenters asserted that the proposed rule violates the
Convention on the Rights of the Child (``CRC'') because the United
States, as a signatory, is obligated to ``refrain from acts that would
defeat the object and purpose of the Convention.'' Commenters averred
that the CRC protects the rights of children to seek asylum; therefore,
commenters argued, the United States must protect the right of children
to seek asylum. Commenters also asserted that the proposed rule
violates the Refugee Convention and the CRC by requiring adjudicators
to presume that many child-specific forms of persecution do not warrant
a grant of asylum. Commenters alleged that this will result in children
being returned to danger in violation of the language and spirit of the
Refugee Convention and the CRC.
One commenter cited Article 14 of the Universal Declaration of
Human Rights (``UDHR''), G.A. Res. 217A (III), U.N. Doc. A/810 (1948),
which states that ``[e]veryone has the right to seek and to enjoy in
other countries asylum from persecution.'' That commenter asserted that
the proposed revisions unnecessarily hinder access to asylum in
contradiction of that right. Commenters also asserted that, under
Article 34 of the Refugee Convention, the United States has an
obligation to extend grants of asylum ``as far as possible'' to
eligible refugees. These commenters asserted that this requires
adjudicators to, at the very least, exercise a general presumption in
favor of individuals who meet the definition of refugee. To do
otherwise would not meet the United States' obligation to facilitate
``as far as possible'' the assimilation and naturalization of
individuals who qualify as refugees.
Commenters criticized the Departments' statements that the
continued viability of statutory withholding of removal, as referenced
in the preamble to the NPRM, meets the United States' non-refoulement
obligations. Commenters asserted that this is a misreading of the scope
of both domestic and international obligations. As an initial matter,
commenters averred that the Refugee Act of 1980, as implemented, was
designed to give full force to the United States' obligations under the
Refugee Convention, to the extent applicable by incorporation in the
1967 Protocol. Commenters argued that these obligations are not limited
to one article of the Refugee Convention and are not limited to not
returning an individual to a country where he or she would face
persecution or other severe harm. Rather, commenters asserted, the
obligations also require the United States to ensure that refugees are
treated fairly and with dignity, and are guaranteed freedom of movement
and rights to employment, education, and other basic needs. Commenters
also cited the Refugee Convention's provision to provide a pathway to
permanent status for refugees, which the commenters asserted is
reflected in the asylum scheme implemented by the Refugee Act, not the
statutory withholding of removal provisions. Commenters argued that
narrowing the opportunity to receive asylum through the implementation
of numerous regulatory obstacles makes asylum--and therefore permanent
status--unattainable, which is inconsistent with the United States'
obligations under U.S. and international law. Commenters also generally
asserted that allowing immigration judges to pretermit applications for
asylum violates the principle of non-refoulement.
Commenters generally asserted that the culmination of the proposed
rule's procedural and substantive changes subvert the purpose of the
Refugee Act, which was to implement the United States' commitments made
through ratification of the 1967 Protocol. Further, one organizational
commenter argued that the proposed rule ``re-orients the U.S. asylum
process away from a principled, humanitarian approach focused on
identifying individuals with international protection needs towards one
that establishes a set of obstacles which must be overcome by
individuals seeking international protection.'' Commenters also
criticized the Departments' statements that the continued viability of
statutory withholding of removal ensures continued compliance with
international obligations. Specifically, commenters noted that many of
the provisions of the proposed rule also affect eligibility for
protection under statutory withholding of removal. Commenters argued
that the proposed changes that affect statutory withholding of removal
would not adequately meet the United States' obligations under the non-
refoulement provisions of Article 33.
Response: 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.\84\ 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.
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\84\ The Departments also note that neither of these treaties is
self-executing, and that, therefore, neither is directly enforceable
in the U.S. legal context 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 Stevic, 467
U.S. at 428 n.22 (``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.'').
---------------------------------------------------------------------------
Regarding the CRC, as an initial point, although the United States
has signed the instrument, the United States has not ratified it; thus,
it cannot establish any binding obligations. See Martinez-Lopez v.
Gonzales, 454 F.3d 500, 502 (5th Cir. 2006) (``The United States has
not ratified the CRC, and, accordingly, the treaty cannot give rise to
an individually enforceable right.''). Moreover, contrary to
commenters' assertions, nothing in the rule is inconsistent with the
CRC. Under the CRC, states are obligated to ``take appropriate measures
to ensure that a child who is seeking refugee status or who is
considered a refugee in accordance with applicable international or
domestic law and procedures shall, whether unaccompanied or accompanied
by his or her parents or by any other person, receive appropriate
protection and humanitarian assistance in the enjoyment of applicable
rights set forth in the present Convention and in other international
human rights or humanitarian instruments to which the said States are
Parties.'' Convention on the Rights of the Child, art. 22, opened for
signature Nov. 20, 1989, 28 I.L.M. 1448. Because this rule is
consistent with the Refugee Act and the United States' obligations
under the Refugee
[[Page 80377]]
Convention and Article 3 of the CAT, it is consistent with the CRC.
Similarly, the Departments disagree with commenters' assertions
that the rule violates the CRC by creating a presumption against
``child-specific forms of persecution.'' As an initial point, nothing
in the rule singles out children or ``child-specific'' claims; rather,
the rule applies to all types of claims regardless of the demographic
characteristics of the applicant. Moreover, although certain types of
children are afforded more protections by statute than similarly-
situated non-child asylum applicants, see e.g., INA 208(b)(3)(C), 8
U.S.C. 1158(b)(3)(C), this rule does not affect those protections.
Further, generally applicable legal requirements, including credibility
standards and burdens of proof, are not relaxed or obviated for
juvenile respondents. See EOIR, Operating Policies and Procedures
Memorandum 17-03: Guidelines for Immigration Court Cases Involving
Juveniles, Including Unaccompanied Alien Children 7 (Dec. 20, 2017),
https://www.justice.gov/eoir/file/oppm17-03/download.
The UDHR is a non-binding human rights instrument, not an
international agreement; 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
UDHR 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.'
'')). Moreover, although article 14(1) of the UDHR proclaims the right
of ``everyone'' to ``seek and to enjoy'' asylum, 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 Secretary from exercising the discretion granted by the
INA, consistent with U.S. obligations under international 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.'').
Similarly, the Departments disagree with commenters' unsupported
assertions that the United States' obligation to ``as far as possible
facilitate the assimilation and naturalization of refugees'' requires a
general presumption in favor of granting asylum to all individuals who
apply. Rather, as the Supreme Court has noted, Article 34 ``is
precatory; it does not require the implementing authority actually to
grant asylum to all those who are eligible.'' Cardoza-Fonseca, 480 U.S.
at 441.
Moreover, 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 Cardoza-
Fonseca, 480 U.S. at 429, 440-41 & n.25; Matter of O-F-A-S-, 27 I&N
Dec. at 712; FARRA; 8 CFR 208.16(b), (c), 208.17 through 208.18;
1208.16(b), (c); 1208.17 through 1208.18. This rule's limitations on
asylum, including the ability of immigration judges to pretermit
applications, do not violate the United States' non-refoulement
obligations.
At the same time, the changes to statutory withholding of removal
and CAT protection do not misalign the rule with the non-refoulement
provisions of the 1951 Refugee Convention, the 1967 Protocol, and the
CAT. As explained above, the Departments have properly asserted
additional standards and clarification for immigration judges to follow
when evaluating claims for statutory withholding of removal and
protection under the CAT.
6.9. Executive Order 12866 and Costs and Benefits of the Rule;
Regulatory Flexibility Act
Comment: At least one commenter alleged that the rule creates
``serious inconsistencies'' with sections 208(a) and 240(b) of the Act,
8 U.S.C. 1158(a), 1229a(b), and the Constitution; as a result,
commenters stated, the rule constitutes a ``significant regulatory
action'' under Executive Order 12866 and the Departments must comply
with the order's analysis requirements, specifically sections
6(a)(3)(B) and (C).
Multiple organizations claimed that the costs and benefits section
of the rule fails to address the cost to the ``reputation'' of the
United States, as well as the cost of losing the ``talent, diversity,
and innovation'' brought by asylees.
Another organization emphasized that it is difficult to evaluate
whether the Departments' ``multiple overlapping proposals to amend the
same asylum provisions'' comply with Executive Order 12866's mandate
that ``[e]ach agency shall avoid regulations that are inconsistent,
incompatible, or duplicative with its other regulations or those of
other Federal agencies.'' Citing CSX Transportation, Inc. v. Surface
Transportation Board, 754 F.3d 1056, 1065-66 (D.C. Cir. 2014), the
organization claimed it would be ``arbitrary and capricious'' for the
Departments to account for costs and benefits in favor of this proposal
that are identical to the costs and benefits ``already priced into the
other revisions of the same provision.'' \85\ The organization
contended that there is no indication in the rule that the Departments
have attempted to identify such overlap.
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\85\ The Departments note that reliance on CSX Transportation is
misplaced because that case involved the agency's consideration of
costs to determine a maximum relief penalty amount and was not
related to the consideration of costs in the context of an agency's
required cost-benefit analysis.
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Commenters disagreed with the Department's assertion, pursuant to
the Regulatory Flexibility Act (``RFA'') requirements, that the rule
would ``not have a significant economic impact on a substantial number
of small entities'' and that the rule only regulates individuals and
not small entities. 85 FR at 36288-89. For example, commenters argued
that the combined effect of the rule's provisions would, inter alia,
affect how practitioners accept cases, manage dockets, or assess fees.
Commenters asserted that these effects would, in turn, impact the
overall ability of practitioners to provide services and affect aliens'
access to representation. In addition, commenters stated that these
changes demonstrate the rule would in fact regulate small entities,
namely the law firms or other organizations who appear before the
Departments.
Response: The Departments agree with commenters that the rule is a
``significant regulatory action.'' As stated in the proposed rule at
section V.D, the rule was considered a ``significant regulatory
action.'' 85 FR at 36289. As a result, the rule was submitted to the
Office of Management and Budget for review, and the Departments
included the required analysis of the rule's costs and benefits. Id. at
36289-90.
Regarding commenters' concerns that the analysis failed to consider
intangible costs like alleged costs to the United States' reputation or
the lost ``talent, diversity, and innovation'' from asylees,
[[Page 80378]]
the Departments note that such alleged costs are, in fact, the
nonquantifiable opinions of the commenters. The Departments are not
required to analyze opinions. Even if commenters' opinions about
intangible concepts without clear definitions could be translated into
measurable or qualitatively discrete considerations the Departments are
unaware of any standard or metric to evaluate the cost of concepts such
a country's reputation or ``innovation.'' Moreover, the fact-specific
nature of asylum applications and the lack of granular data on the
facts of every asylum application prevent the Departments from
quantifying particular costs. Further, although Executive Order 12866
observes that nonquantifiable costs are important to consider, the
order requires their consideration only to the extent that they can be
usefully estimated, and the Departments properly assessed the rules
using appropriate qualitative considerations. See 85 FR at 36289-90.
As stated above in Section II.C.6.9 of this preamble, each of the
Departments' regulations stands on its own. This regulation is not
``inconsistent, incompatible, or duplicative'' with other proposed or
final rules published by the Departments, and the Departments disagree
with the implication that all rules that would affect one underlying
area of the Act, such as asylum eligibility, must be issued in one
single rulemaking to comply with Executive Order 12866. Cf. Ctr. for
Biological Diversity v. EPA, 722 F.3d 401, 410 (D.C. Cir. 2013)
(agencies have discretion to address an issue through different
rulemakings over time).
As noted in the NPRM, the Departments believe that the rule will
provide a significant net benefit by allowing for the expeditious and
efficient resolution of asylum cases by reducing the number of
meritless claims before the immigration courts, thereby providing the
Departments with ``the ability to more promptly grant relief or
protection to qualifying aliens.'' 85 FR at 36290. These benefits will
ensure that the Departments' case volumes do not increase to an
insurmountable degree, which in turn will leave additional resources
available for a greater number of asylum seekers. Contrary to
commenters' claims, the rule will not prevent aliens from submitting
asylum applications or receiving relief or protection in appropriate
cases. Moreover, the rule is not imposing any new costs on asylum
seekers. Additionally, any costs imposed on attorneys or
representatives for asylum seekers will be minimal and limited to the
time it will take to become familiar with the rule. Immigration
practitioners are already subject to professional responsibility rules
regarding workload management, 8 CFR 1003.102(q)(1), and are already
accustomed to changes in asylum law based on the issuance of new
precedential decisions from the BIA or the courts of appeals.
Also, although becoming familiar with such a decision or with this
rule may require a certain, albeit small, amount of time, any time
spent on this process will likely be offset by the future benefits of
the rule. Indeed, one purpose of the rule is to encourage clearer and
more efficient adjudications, see e.g., 85 FR at 36290, thus reducing
the need for practitioners to become familiar with the inefficient,
case-by-case approach that is currently employed for adjudicating
issues such as firm resettlement. In addition, the Departments note
that the prospective application of the rule will further diminish the
effect of the rule on practitioners, as no practitioners will be
required to reevaluate any cases or arguments that they are currently
pursuing.
The Departments also reject the assertion that the rule would have
a significant impact on small entities. The rule applies to asylum
applicants, who are individuals, not entities. See 5 U.S.C. 601(6). The
rule does not limit in any way the ability of practitioners to accept
cases, manage dockets, or assess fees. Indeed, nothing in the rule in
any fashion regulates the legal representatives of such individuals or
the organizations by which those representatives are employed, and the
Departments are unaware of cases in which the RFA's requirements have
been applied to legal representatives of entities subject to its
provisions, in addition to or in lieu of the entities themselves. See 5
U.S.C. 603(b)(3) (requiring that an RFA analysis include a description
of and, if feasible, an estimate of the number of ``small entities'' to
which the rule ``will apply''). To the contrary, case law indicates
that indirect effects on entities not regulated by a proposed rule are
not subject to an RFA analysis. See, e.g., Mid-Tex Elec. Co-op, Inc. v.
FERC, 773 F.2d 327, 342-43 (D.C. Cir. 1985) (``[W]e conclude that an
agency may properly certify that no regulatory flexibility analysis is
necessary when it determines that the rule will not have a significant
economic impact on a substantial number of small entities that are
subject to the requirements of the rule. . . . Congress did not intend
to require that every agency consider every indirect effect that any
regulation might have on small businesses in any stratum of the
national economy. That is a very broad and ambitious agenda, and we
think that Congress is unlikely to have embarked on such a course
without airing the matter.''); Cement Kiln Recycling Coalition v. EPA,
255 F.3d 855, 869 (D.C. Cir. 2001) (``Contrary to what [petitioner]
supposes, application of the RFA does turn on whether particular
entities are the `targets' of a given rule. The statute requires that
the agency conduct the relevant analysis or certify `no impact' for
those small businesses that are `subject to' the regulation, that is,
those to which the regulation `will apply.'. . . The rule will
doubtless have economic impacts in many sectors of the economy. But to
require an agency to assess the impact on all of the nation's small
businesses possibly affected by a rule would be to convert every
rulemaking process into a massive exercise in economic modeling, an
approach we have already rejected.'' (citing Mid-Tex, 773 F.2d 327 at
343)); see also White Eagle Co-op Ass'n v. Conner, 553 F.3d 467, 480
(7th Cir. 2009) (``The rule that emerges from this line of cases is
that small entities directly regulated by the proposed [rulemaking]--
whose conduct is circumscribed or mandated--may bring a challenge to
the RFA analysis or certification of an agency. . . . However, when the
regulation reaches small entities only indirectly, they do not have
standing to bring an RFA challenge.'').
Further, DOJ reached a similar conclusion in 1997 involving a
broader rulemaking regarding asylum adjudications. See Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct
of Removal Proceedings; Asylum Procedures, 62 FR 444, 453 (Jan. 3,
1997) (certifying that the rule would not have a significant impact on
a substantial number of small entities because it ``affects only
Federal government operations'' by revising the procedures for the
``examination, detention, and removal of aliens''). That conclusion was
reiterated in the interim rule, 62 FR 10312, 10328 (Mar. 6, 1997),
which was adopted with no noted challenge or dispute. This final rule
is similar, in that it, too, affects only the operations of the Federal
government by amending a subset of the procedures the government uses
to process certain aliens. The Departments thus believe that the
experience of implementing the prior rule supports their conclusion
that there is no evidence that the current rule will have a significant
impact on small entities as contemplated by the RFA or an applicable
executive order.
[[Page 80379]]
6.10. Trafficking Victims Protection Reauthorization Act
Comment: Commenters argued that the proposed rule violates the
William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008 (``TVPRA''), Public Law 110-457, 122 Stat. 5044, by failing to
consider its impact on applications for relief submitted by UAC.
Specifically, commenters cited the TVPRA's instruction that
``[a]pplications for asylum and other forms of relief from removal in
which an unaccompanied alien child is the principal applicant shall be
governed by regulations which take into account the specialized needs
of unaccompanied alien children and which address both procedural and
substantive aspects of handling unaccompanied alien children's cases.''
8 U.S.C. 1232(d)(8). Commenters averred that the rule fails to consider
how UAC are subjected to and affected by persecution and other harm as
well as the particular vulnerabilities of UAC.
Moreover, commenters argued that the proposed rule violates both
the text and the spirit of the TVPRA by creating additional hurdles
that increase the risk that UAC will be unable to meaningfully
participate in the adjudication of their claims for relief.
Specifically, commenters averred that it was unlikely that Congress
would have provided protections to UAC from the bars to asylum related
to the one-year filing deadline and the safe third country, only to
then allow immigration judges to pretermit applications for asylum
without a hearing.
One organizational commenter criticized the proposed rule's lack of
``meaningful discussion'' regarding how the new procedures would
interact with USCIS's initial jurisdiction over applications for asylum
from UAC. Commenters also stated that the proposed rule may result in
confusion if an immigration judge exercises jurisdiction over a UAC's
application that is pending before USCIS. If this were to occur,
commenters alleged, the UAC may be required to submit two applications
for asylum and also be required to demonstrate an exception to the one-
year filing deadline that would not have been applicable to the
application before USCIS.
Commenters also asserted that the new discretionary factor
regarding accrual of one year or more of unlawful presence would act as
a bar to asylum in direct contradiction of Congress's recognition of
the need to exempt UACs from the one-year filing deadline. Although
commenters acknowledged that this is a discretionary factor and not an
outright bar, commenters asserted that even including this as a
discretionary factor is contrary to Congress's intent.
Commenters stated that, based on the proposed regulatory language
and accompanying preamble language, it is unclear whether asylum
officers would be permitted to render a determination that an asylum
application is frivolous for UAC who file defensive applications before
USCIS in the first instance. By permitting the asylum officer to focus
on matters that may be frivolous if the asylum officer identifies
indicators of frivolousness, commenters asserted, the interview would
become adversarial, in contradiction of Congress's purpose of granting
UAC the non-adversarial, child-appropriate setting of an asylum
interview for initial review of the asylum application.
Response: As recognized in the proposed rule, UAC \86\ are not
subjected to expedited removal. See 8 U.S.C. 1232(a)(5)(D)(i).
Regarding the remainder of the rule, the rule does not violate the
TVPRA. The TVPRA enacted multiple procedures and protections specific
to UAC that do not apply to other similarly-situated asylum applicants.
Although UAC are not subject to either the safe third country exception
or the requirement to file an application within one year following the
alien's arrival in the United States, INA 208(a)(2)(E), 8 U.S.C.
1158(a)(2)(E), Congress did not exempt UAC from all bars to asylum
eligibility. As a result, UAC, like all asylum seekers, (1) may not
apply for asylum if they previously applied for asylum and their
application was denied, INA 208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C), and
(2) are ineligible for asylum if they are subject to any of the
mandatory bars at section 208(b)(2)(A)(i)-(vi) of the Act, 8 U.S.C.
1158(b)(2)(A)(i)-(vi), or if they are subject to any additional bars
implemented pursuant to the Attorney General's and Secretary's
authority to establish additional limitations on asylum eligibility by
regulation, see INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). That Congress
did not exempt UAC from all bars indicates congressional intent to hold
UAC to the same standards to establish eligibility for asylum as other
similarly situated applicants unless specifically exempted.
---------------------------------------------------------------------------
\86\ UAC are children who (1) have no lawful immigration status
in the United States, (2) are under the age of 18, and (3) do not
have a parent or legal guardian in the United States or, if in the
United States, available to provide care and physical custody. 6
U.S.C. 279(g)(2).
---------------------------------------------------------------------------
Contrary to commenters' suggestion, this rule does not alter asylum
officers' jurisdiction over asylum applications from UAC. See INA
208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C). If UAC are placed in removal
proceedings under section 240 of the Act, 8 U.S.C. 1229a, and raise
asylum claims, immigration judges will continue to refer the claims to
asylum officers pursuant to the TVPRA, consistent with the asylum
statute and procedures in place prior to the promulgation of this rule.
See INA 208(b)(3)(C), 8 U.S.C 1158(b)(3)(C). Those asylum officers will
determine whether the UAC are eligible for asylum on the basis of this
rule. This rule does not affect any other procedure or protection
implemented by the TVPRA.
The Departments disagree that the rule undermines the spirit of the
TVPRA by adding accrual of unlawful presence for one year or more as a
negative discretionary factor. Although the NPRM may have been unclear
on the point, its citation to INA 212(a)(9)(B) and (C), 8 U.S.C.
1182(a)(9)(B) and (C), 85 FR at 36284, indicated that its intent was
for the phrase ``unlawful presence'' to have the same meaning as in INA
212(a)(9)(B)(ii) and (iii), 8 U.S.C. 1182(a)(9)(B)(ii) and (iii). Under
INA 212(a)(9)(B)(iii)(I), 8 U.S.C. 1182(a)(9)(B)(iii)(I), aliens under
the age of 18, such as UAC, do not accrue unlawful presence. Thus,
commenters' concerns are unfounded, and the Departments are clarifying
that point in the final rule.
Further, the Departments have concluded that the safeguards in
place for allowing asylum officers to make a finding that an asylum
application is frivolous are sufficient to protect UAC in the
application process.\87\ Even if an asylum officer finds an application
is frivolous, the application is referred to an immigration judge, who
provides review of the determination. The asylum officer's
determination does not render the applicant permanently ineligible for
immigration benefits unless the immigration judge or the BIA also makes
a finding of frivolousness. 8 CFR 208.20(b), 1208.20(b). Further,
asylum officers continue to conduct child appropriate interviews by
taking into account age, stage of language development, background, and
level of sophistication. See USCIS, Interviewing Procedures for Minor
Applicants (Aug. 6, 2020), https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/minor-children-applying-for-asylum-by-themselves.
---------------------------------------------------------------------------
\87\ As a practical matter, the Departments note that the
statutory mens rea requirement that a frivolous asylum application
be ``knowingly'' filed will likely preclude a frivolousness finding
against very young UAC.
---------------------------------------------------------------------------
Finally, the Departments note that, for UAC who are not eligible
for asylum
[[Page 80380]]
under this rule but who may still be eligible for withholding of
removal under section 241 of the Act, 8 U.S.C. 1231, or protection
under the CAT regulations, DOJ is cognizant of the ``special
circumstances'' often presented by juvenile respondents in immigration
proceedings. DOJ's immigration judges may make certain modifications to
ordinary courtroom proceedings to account for juvenile respondents that
would not be made for adult respondents. See EOIR, Operating Policies
and Procedures Memorandum 17-03: Guidelines for Immigration Court Cases
Involving Juveniles, Including Unaccompanied Alien Children 4-6 (Dec.
20, 2017), https://www.justice.gov/eoir/file/oppm17-03/download; see
also id. at 7 (directing immigration judges to take ``special care'' in
cases involving UAC by, for example, expediting the consideration of
requests for voluntary departure).
In short, the Departments have fully considered whether the rule
will have any particular impacts on UAC that are not already accounted
for in existing law or are not addressed in the rule itself. The
Departments have also fully considered commenters' concerns. Thus, for
the reasons given above, the Departments believe that the rule does not
have an unlawful impact on minors in general or on UAC in particular.
7. Retroactive Applicability
Comment: One organization stated generally that nearly all of the
NPRM's provisions are illegally retroactive in effect. Multiple
commenters noted that, although the NPRM seeks to make its frivolous
definition prospective only in application, see 85 FR at 36304, it is
silent as to whether its other provisions would apply retroactively. As
a result, one organization claimed, the inference is that the
Departments intend each of the NPRM's remaining provisions to apply to
applications that are pending at the time the rule becomes effective.
The organization alleged that this would violate the presumption
against retroactivity, noting that a regulation cannot be applied
retroactively unless Congress has provided a clear statement that the
agencies may promulgate regulations with that effect. See INS v. St.
Cyr, 533 U.S. 289, 316-17 (2001). The organization also claimed there
is no statute authorizing the Departments to promulgate regulatory
changes to asylum that have retroactive effect, contending the
provisions of the NPRM would either impair rights concerning, or place
new disabilities on, asylum applications already filed. The
organization alleged that the proposed changes in the NPRM would harm
asylum seekers.
At least one organization claimed that the NPRM's substantive
standards would have an impermissible retroactive effect on pending
applications. One organization alleged that each standard, including
the list of bars to the favorable exercise of discretion, would
overrule BIA precedent, attempt to overrule Federal appellate court
precedent, shift burdens of proof, or otherwise change settled law.
Another organization noted that there are currently more than 300,000
asylum cases pending before the asylum office and almost 1.2 million
cases pending before the U.S. immigration courts, many of which include
asylum applications. The organization argued that, if the rule is
finalized, the Departments ``must clarify'' that its provisions will
not be applied retroactively.
One commenter claimed that if the rule is enacted with the
retroactive provisions intact, it will immediately be enjoined.
At least one commenter expressed concern that, if the NPRM is
applied retroactively, there will be ``mass denials which violate due
process,'' and the Departments will be ``tied up in Federal court for
the next decade.'' At least one commenter contended that Congress will
cease to fund the Departments because it will recognize that the money
will be used to fund the attorney fees of litigants pursuant to the
Equal Access to Justice Act ``after countless litigants prevail in
their suits against [the Departments].''
At least one commenter claimed that, because the Supreme Court is
currently attempting to ``reign in the administrative state'' and
Congress is ``fed up'' with agency waste, the Departments are ``signing
their own death warrants'' by seeking to enact the proposed rule. At
least one commenter suggested the Departments' goal is to ``[s]hut down
legal immigration by convincing Congress to defund the only agencies
capable of adjudicating immigration petitions,'' suggesting this is
``treasonous'' and claiming that those who want to end legal
immigration are in the extreme minority. At least one commenter
emphasized that legal immigration is beneficial to the national economy
but suggested this does not matter if those who care ``are not in a
position to stop the train before it drives off a cliff.''
At least one organization claimed that the hundreds of thousands of
pending asylum applications implicate a reliance interest in ``the
state of the law as it stands.'' At least one organization alleged that
this reliance interest is ``further prejudiced'' by the 30-day comment
period allowed by the Departments, contending that ``in one swoop,
previously eligible applicants may find themselves ineligible without
any warning.''
Another organization expressed particular concern for LGBTQ
applicants, claiming that applying the rule's standards to over 800,000
pending applications violates Fifth Amendment due process rights that
apply ``equally to all people in the United States.'' One organization
emphasized that the rule would apply to individuals, many of whom have
U.S.-born children, who have already applied for asylum and are waiting
on a hearing or interview.
Response: Although the Departments believe that substantial
portions of the rule are most appropriately classified as a
clarification of existing law rather than an alteration of prior
substantive law, see Levy v. Sterling Holding Co., LLC, 544 F.3d 493,
506 (3d Cir. 2008) (``Thus, where a new rule constitutes a
clarification--rather than a substantive change--of the law as it
existed beforehand, the application of that new rule to pre-
promulgation conduct necessarily does not have an impermissible
retroactive effect, regardless of whether Congress has delegated
retroactive rulemaking power to the agency.'' (emphasis in original)),
they nevertheless recognize that the potential retroactivity of the
rule was not clear in the NPRM. Accordingly, to the extent that the
rule changes any existing law, the Departments are electing to make the
rule prospective to apply to all asylum applications--including
applications for statutory withholding of removal and protection under
the CAT regulations--filed on or after its effective date and, for
purposes of the changes to the credible fear and related screening
procedures, and reasonable fear review procedures, to all aliens
apprehended or otherwise encountered by DHS on or after the effective
date.\88\ Nevertheless, to the extent that the rule merely codifies
existing law or authority, nothing in the rule precludes adjudicators
from
[[Page 80381]]
applying that existing authority to pending cases independently of the
prospective application of the rule.\89\
---------------------------------------------------------------------------
\88\ In addition to serving as a bar to refugee admission and
the granting of asylum, the concept of firm resettlement also
operates as a bar to the adjustment of status of an asylee. INA
209(b)(4), 8 U.S.C. 1159(b)(4); 8 CFR 209.2(a)(1)(iv) and
1209.2(a)(1)(iv). Consistent with the prospective nature of the
rule, the Departments will apply the new regulatory definitions of
``firm resettlement'' in 8 CFR 208.15 and 1208.15 for purposes of
INA 209(b)(4), 8 U.S.C. 1159(b)(4), only to aliens who apply for
asylum, are granted asylum, and then subsequently apply for
adjustment of status, where all of these events occur on or after
the effective date of this rule.
\89\ For example, the rule states that the Secretary or Attorney
General, subject to an exception, will not favorably exercise
discretion in adjudicating an asylum application for an alien who
has failed to satisfy certain tax obligations. 8 CFR
208.13(d)(2)(i)(E) and 1208.13(d)(2)(i)(E). That provision applies
only to asylum applications filed on or after the effective date of
the rule. However, the rule does not preclude the consideration of
unfulfilled tax obligations as a discretionary consideration in
adjudicating a pending asylum application based on established case
law that may be applied to pending applications. See, e.g., Matter
of A-H-, 23 I&N Dec. at 782-83 (``Moreover, certain additional
factors weigh against asylum for respondent: Specifically,
respondent testified that he received money from overseas for his
political work, yet he never filed income tax returns in the United
States and his children nevertheless received financial assistance
from the Commonwealth of Virginia. Respondent's apparent tax
violations and his abuse of a system designed to provide relief to
the needy exhibit both a disrespect for the rule of law and a
willingness to gain advantage at the expense of those who are more
deserving.'' (footnote omitted)). In short, existing law will
continue to apply to asylum applications filed prior to the
effective date of this rule, regardless of whether that law is
altered or incorporated into the rule.
---------------------------------------------------------------------------
The Departments decline to respond to commenters' assertions about
potential implications that the rule's application to pending cases may
have, such as ``mass denials'' of asylum applications and impact on
future appropriations, as such comments are both unmoored from a
reasonable basis in fact and wholly speculative due to the case-by-case
and fact-intensive nature of many asylum-application adjudications.
Further, as noted, the Departments are applying the rule prospectively,
so the underlying factual premise of the commenters' concern is
erroneous.
8. Miscellaneous/Other Points
8.1. Likelihood of Litigation
Comment: Commenters opposed the rule because it would ``create a
flurry of litigation'' causing ``fundamental aspects of immigration law
[to] remain uncertain for many years.''
Response: The Departments recognize that litigation, including the
potential for an initial nationwide injunction, has become almost
inevitable regarding any immigration policy or regulation that does not
provide a perceived benefit to aliens, and they are aware that
litigation will likely follow this rule, just as it has others of
similar scope. Cf. DHS v. New York, 140 S. Ct. 599, 599 (2020)
(Gorsuch, J. concurring in the grant of a stay) (``On October 10, 2018,
the Department of Homeland Security began a rulemaking process to
define the term `public charge,' as it is used in the Nation's
immigration laws. Approximately 10 months and 266,000 comments later,
the agency issued a final rule. Litigation swiftly followed, with a
number of States, organizations, and individual plaintiffs variously
alleging that the new definition violates the Constitution, the
Administrative Procedure Act, and the immigration laws themselves.
These plaintiffs have urged courts to enjoin the rule's enforcement not
only as it applies to them, or even to some definable group having
something to do with their claimed injury, but as it applies to
anyone.''). The Departments are also aware of the pernicious effects of
nationwide injunctions. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392,
2424-25 (2018) (Thomas, J. concurring) (``Injunctions that prohibit the
Executive Branch from applying a law or policy against anyone--often
called `universal' or `nationwide' injunctions--have become
increasingly common. District courts, including the one here, have
begun imposing universal injunctions without considering their
authority to grant such sweeping relief. These injunctions are
beginning to take a toll on the Federal court system--preventing legal
questions from percolating through the Federal courts, encouraging
forum shopping, and making every case a national emergency for the
courts and for the Executive Branch.'' (footnote omitted)). The
Departments do not believe, however, that the inevitability of
litigation over contested issues is a sufficient basis to stop them
from exercising statutory and regulatory prerogatives in furtherance of
the law and the policies of the Executive Branch. Accordingly, the
Departments decline the invitation to withdraw the rule due to the
threat of litigation.
8.2. DHS Officials
Comment: Commenters also argued that the proposed rule is
procedurally invalid due to concerns with the authority of multiple DHS
officials. Commenters stated that the rule is invalid because of the
service of Ken Cuccinelli at USCIS. For example, commenters cited L.M.-
M. v. Cuccinelli, 442 F. Supp. 3d 1 (D.D.C. 2020), in support of the
argument that ``Mr. Cuccinelli's unlawful appointment invalidates any
regulations that might be put into effect, implemented, or adopted
during his tenure at USCIS.'' Commenters further noted that Mr.
Cuccinelli began serving as the head of USCIS over one year ago, on
June 10, 2019, despite the 210-day limitation for temporary
appointments to senate-confirmed positions implemented by the Federal
Vacancies Reform Act of 1998 (``FVRA''), Public Law 105-277, sec. 151,
112 Stat. 2681, 2681-612 through 2618-13 (codified at 5 U.S.C. 3346).
Similarly, commenters stated that Acting Secretary Chad Wolf and
Chad Mizelle, the Senior Official Performing the Duties of the General
Counsel, both are serving in violation of the FVRA and, accordingly,
both lack signature authority that has force or effect. See 5 U.S.C.
3348(d)(1).
Response: Neither the NPRM nor this final rule was signed by Mr.
Cuccinelli. Thus, the status of Mr. Cuccinelli's service within the
Department is immaterial to the lawfulness of this rule. The NPRM and
this final rule were signed by Chad Mizelle, the Senior Official
Performing the Duties of the General Counsel for DHS, and not by Ken
Cuccinelli. As indicated in the proposed rule at Section V.H, Chad
Wolf, the Acting Secretary of Homeland Security, reviewed and approved
the proposed rule and delegated the signature authority to Mr. Mizelle.
Secretary Wolf is validly acting as Secretary of Homeland Security.
On April 9, 2019, then-Secretary Nielsen, who was Senate confirmed,
used the authority provided by 6 U.S.C. 113(g)(2) to establish the
order of succession for the Secretary of Homeland Security. This change
to the order of succession applied to any vacancy. This exercise of the
authority to establish an order of succession for DHS pursuant to 6
U.S.C. 113(g)(2) superseded the FVRA and the order of succession found
in Executive Order 13753, 81 FR 90667 (Dec. 9, 2016). As a result of
this change, and pursuant to 6 U.S.C. 113(g)(2), Kevin K. McAleenan,
who was Senate-confirmed as the Commissioner of CBP, was the next
successor and served as Acting Secretary without time limitation.
Acting Secretary McAleenan subsequently amended the Secretary's order
of succession pursuant to 6 U.S.C. 113(g)(2), placing the Under
Secretary for Strategy, Policy, and Plans position third in the order
of succession, below the positions of the Deputy Secretary and Under
Secretary for Management. Because the Deputy Secretary and Under
Secretary for Management positions were vacant when Mr. McAleenan
resigned, Mr. Wolf, as the Senate-confirmed Under Secretary for
Strategy, Policy, and Plans, was the next successor and began serving
as the Acting Secretary.
Further, because he has been serving as the Acting Secretary
pursuant to an order of succession established under 6 U.S.C.
113(g)(2), the FVRA's prohibition on a nominee's acting service while
his or her nomination is pending does not apply, and Mr. Wolf remains
the Acting
[[Page 80382]]
Secretary notwithstanding President Trump's September 10 transmission
to the Senate of Mr. Wolf's nomination to serve as DHS Secretary.
Compare 6 U.S.C. 113(a)(1)(A) (cross-referencing the FVRA without the
``notwithstanding'' caveat), with id. 113(g)(1)-(2) (noting the FVRA
provisions and specifying, in contrast, that section 113(g) provides
for acting secretary service ``notwithstanding'' those provisions); see
also 5 U.S.C. 3345(b)(1)(B) (restricting acting officer service under
section 3345(a), in particular, by an official whose nomination has
been submitted to the Senate for permanent service in that position).
That said, there have been recent challenges to whether Mr. Wolf's
service is invalid, resting on the erroneous contentions that the
orders of succession issued by former Secretary Nielsen and former
Acting Secretary McAleenan were invalid. The Departments believe those
challenges are not based on an accurate view of the law. But even if
those contentions are legally correct--meaning that neither former
Secretary Nielsen nor former Acting Secretary McAleenan issued a valid
order of succession under 6 U.S.C. 113(g)(2)--then the FVRA would have
applied, and Executive Order 13753 would have governed the order of
succession for the Secretary of Homeland Security from the date of
Nielsen's resignation.
The FVRA provides an alternative basis for an official to exercise
the functions and duties of the Secretary temporarily in an acting
capacity. In that alternate scenario, under the authority of the FVRA,
Mr. Wolf would have been ineligible to serve as the Acting Secretary of
DHS after his nomination was submitted to the Senate, see 5 U.S.C.
3345(b)(1)(B), and Peter Gaynor, the Administrator of the Federal
Emergency Management Agency (``FEMA''), would have--by operation of
Executive Order 13753--become eligible to exercise the functions and
duties of the Secretary temporarily in an acting capacity. This is
because Executive Order 13753 pre-established the President's
succession order for DHS when the FVRA applies. Mr. Gaynor would have
been the most senior official eligible to exercise the functions and
duties of the Secretary under that succession order, and thus would
have become the official eligible to act as Secretary once Mr. Wolf's
nomination was submitted to the Senate. See 5 U.S.C. 3346(a)(2). Then,
in this alternate scenario in which, as assumed above, there was no
valid succession order under 6 U.S.C. 113(g)(2), the submission of Mr.
Wolf's nomination to the Senate would have restarted the FVRA's time
limits. See 5 U.S.C. 3346(a)(2).
Out of an abundance of caution, and to minimize any disruption to
DHS and to the Administration's goal of maintaining homeland security,
on November 14, 2020, with Mr. Wolf's nomination still pending in the
Senate, Mr. Gaynor exercised the authority of Acting Secretary that he
would have had (in the absence of any governing succession order under
6 U.S.C. 113(g)(2)) to designate a new order of succession under 6
U.S.C. 113(g)(2) (the ``Gaynor Order'').\90\ In particular, Mr. Gaynor
issued an order of succession with the same ordering of positions
listed in former Acting Secretary McAleenan's November 2019 order. The
Gaynor Order thus placed the Under Secretary for Strategy, Policy, and
Plans above the FEMA Administrator in the order of succession. Once the
Gaynor Order was executed, it superseded any authority Mr. Gaynor may
have had under the FVRA and confirmed Mr. Wolf's authority to continue
to serve as the Acting Secretary. Hence, regardless of whether Mr. Wolf
already possessed authority pursuant to the November 8, 2019, order of
succession effectuated by former Acting Secretary McAleenan (as the
Departments have previously concluded), the Gaynor Order provides an
alternative basis for concluding that Mr. Wolf currently serves as the
Acting Secretary.\91\
---------------------------------------------------------------------------
\90\ Mr. Gaynor signed an order that established an identical
order of succession on September 10, 2020, the day Mr. Wolf's
nomination was submitted, but it appears he signed that order before
the nomination was received by the Senate. To resolve any concern
that his September 10 order was ineffective, Mr. Gaynor signed a new
order on November 14, 2020. Prior to Mr. Gaynor's new order, the
U.S. District Court for the District of New York issued an opinion
concluding that Mr. Gaynor did not have authority to act as
Secretary, relying in part on the fact that DHS did not notify
Congress of Administrator Gaynor's service, as required under 5
U.S.C. 3349(a). See Batalla Vidal v. Wolf, No. 16CV4756NGGVMS, 2020
WL 6695076, at *9 (E.D.N.Y. Nov. 14, 2020). The Departments disagree
that the FVRA's notice requirement affects the validity of an acting
officer's service; nowhere does section 3349 indicate that agency
reporting obligations are tied to an acting officer's ability to
serve.
\91\ On October 9, 2020, the U.S. District Court for the
District of Columbia issued an opinion indicating that it is likely
that section 113(g)(2) orders can be issued by only Senate-confirmed
secretaries of DHS and, thus, that Mr. Gaynor likely had no
authority to issue a section 113(g)(2) succession order. See Nw.
Immigrant Rights Project v. United States Citizenship & Immigration
Servs., No. CV 19-3283 (RDM), 2020 WL 5995206, at *24 (D.D.C. Oct.
8, 2020). This decision is incorrect because the authority in
section 113(g)(2) allows ``the Secretary'' to designate an order of
succession, see 6 U.S.C. 113(g)(2), and an ``acting officer is
vested with the same authority that could be exercised by the
officer for whom he acts.'' In re Grand Jury Investigation, 916 F.3d
1047, 1055 (D.C. Cir. 2019). The Acting Secretary of DHS is
accordingly empowered to exercise the authority of ``the Secretary''
of DHS to ``designate [an] order of succession.'' 6 U.S.C.
113(g)(2). In addition, this is the only district court opinion to
have reached such a conclusion about the authority of the Acting
Secretary, and the Departments are contesting that determination.
---------------------------------------------------------------------------
On November 16, 2020, Acting Secretary Wolf ratified any and all
actions involving delegable duties that he took between November 13,
2019, through November 16 2020, including the NPRM that is the subject
of this rulemaking.
Under section 103(a)(1) of the Act, 8 U.S.C. 1103(a)(1), the
Secretary is charged with the administration and enforcement of the INA
and all other immigration laws (except for the powers, functions, and
duties of the President, the Attorney General, and certain consular,
diplomatic, and Department of State officials). The Secretary is also
authorized to delegate his or her authority to any officer or employee
of the agency and to designate other officers of the Department to
serve as Acting Secretary. See INA 103, 8 U.S.C. 1103, and 6 U.S.C.
113(g)(2). The HSA further provides that every officer of the
Department ``shall perform the functions specified by law for the
official's office or prescribed by the Secretary.'' 6 U.S.C. 113(f).
Thus, the designation of the signature authority from Acting Secretary
Wolf to Mr. Mizelle is validly within the Acting Secretary's authority.
8.3. Article I Immigration Courts
Comment: At least one commenter, the former union representing
immigration judges, expressed a belief that the immigration courts and
the BIA should be moved from within DOJ in the Executive Branch into an
independent article I court system.\92\ The commenter indicated that
such a move would address ``political influence'' and ensure ``neutral
decision making.''
---------------------------------------------------------------------------
\92\ On November 2, 2020, the Federal Labor Relations Authority
ruled that immigration judges are management officials for purposes
of 5 U.S.C. 7103(a)(11), and, thus, excluded from a bargaining unit
pursuant to 5 U.S.C. 7112(b)(1). U.S. Dept. of Justice, Exec. Office
for Immigration Review and National Association of Immigration
Judges, Int'l Fed. of Prof. and Tech. Engineers Judicial Council 2,
71 FLRA No. 207 (2020). That decision effectively decertified the
union that previously represented a bargaining unit of non-
supervisory immigration judges.
---------------------------------------------------------------------------
Response: Immigration judges are required to adjudicate cases in an
``impartial manner,'' 8 CFR 1003.10(b); they exercise ``independent
judgment and discretion,'' id.; and they ``should not be swayed by
partisan interests or public clamor,'' EOIR, Ethics and Professionalism
Guide for Immigration
[[Page 80383]]
Judges, sec. VIII (Jan. 26, 2011), https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf. To the extent that a union
which represented immigration judges suggests that the members of its
former bargaining unit do not engage in ``neutral decision making'' or
are currently swayed by partisan influence in derogation of their
ethical obligations, the Departments respectfully disagree, and note
that the issue is one to be resolved between the former union and the
members of its former bargaining unit, rather than through a
rulemaking. The Departments are also unaware of any complaints filed by
the former union regarding any specific immigration judges who have
failed to engage in neutral decision making. In short, the commenter's
premise is unfounded in either fact or law.
Otherwise, the recommendation is both beyond the scope of this
rulemaking and the Departments' authority. Congress has the sole
authority to create an article I court. E.g. 26 U.S.C. 7441 (``There is
hereby established, under article I of the Constitution of the United
States, a court of record to be known as the United States Tax
Court.''). Despite this authority, Congress has provided for a system
of administrative hearings for immigration cases, see, e.g., INA 240, 8
U.S.C. 1229a (laying out administrative procedures for removal
proceedings), which the Departments believe should be maintained. Cf.
Strengthening and Reforming America's Immigration Court System: Hearing
before the Subcomm. on Border Sec. & Immigration of the S. Comm. on the
Judiciary, 115th Cong. (2018) (written response to Questions for the
Record of James McHenry, Director, EOIR) (``The financial costs and
logistical hurdles to implementing an Article I immigration court
system would be monumental and would likely delay pending cases even
further.'').
9. Severability
Comment: Some commenters disagreed with the Departments' inclusion
of severability provisions in the rule. See 8 CFR 208.25, 235.6(c),
1003.42(i), 1208.25, 1212.13, 1235.6(c). For example, at least one
commenter stated that the severability provisions conflict with the
premise that all the provisions in the rule are related. Another
commenter disagreed with the severability provisions, stating that the
rule should instead be struck in its entirety.
Response: The changes made by the rule function sensibly
independent of the other provisions. As a result, the Departments
included severability language for each affected part of title 8 CFR. 8
CFR 208.25, 235.6(c), 1003.42(i), 1208.25, 1212.13, 1235.6(c). In other
words, the Departments included these severability provisions to
clearly illustrate the Departments' belief that the severance of any
affected sections ``will not impair the function of the statute as a
whole'' and that the Departments would have enacted the remaining
regulatory provisions even without any others. See K Mart Corp. v.
Cartier, Inc., 486 U.S. 281, 294 (1988) (discussing whether an agency's
regulatory provision is severable). The Departments disagree that this
severability analysis is impacted by the interrelatedness of either the
provisions of this rule or the affected parts more generally. Indeed,
it is reasonable for agencies, when practical, to make multiple related
changes in a single rulemaking in order to best inform the public and
facilitate notice and comment.
III. Regulatory Requirements
A. 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).
B. Regulatory Flexibility Act
The Departments have reviewed this regulation in accordance with
the Regulatory Flexibility Act, see 5 U.S.C. 601 et seq., and, as
explained more fully above, have determined that this rule will not
have a significant economic impact on a substantial number of small
entities, see 5 U.S.C. 605(b). This regulation affects only individual
aliens and the Federal government. Individuals do not constitute small
entities under the Regulatory Flexibility Act. See 5 U.S.C. 601(6).
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.
D. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this final rule is not a major rule as defined by section 804 of
the Congressional Review Act. 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. See 5 U.S.C. 804(2).
E. Executive Orders 12866, 13563, and 13771
This final rule is considered by the Departments to be a
``significant regulatory action'' under section 3(f)(4) of Executive
Order 12866 because it raises novel legal or policy issues.
Accordingly, the regulation has been submitted to the Office of
Management and Budget (``OMB'') for review.
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.
The final rule would change or provide additional clarity for
adjudicators across many issues commonly raised by asylum applications
and would potentially streamline the overall adjudicatory process for
asylum applications. Although the regulation will improve the clarity
of asylum law and help streamline the credible fear review process, the
regulation does not change the nature of the role of an immigration
judge or an asylum officer during proceedings for consideration of
credible fear claims or asylum applications. Notably, immigration
judges will retain their existing authority to review de novo the
determinations made by asylum officers in a credible fear proceeding,
and will continue to control immigration court proceedings. In credible
fear proceedings, asylum officers will continue to evaluate the merits
of claims for asylum, withholding of removal, and CAT protection for
possible referral to an immigration judge. Although this rule expands
the bases on which an asylum officer may determine that a claim does
not merit referral (and, as a consequence, make a negative fear
determination), the alien will still be able to seek review of that
negative fear
[[Page 80384]]
determination before the immigration judge.
Immigration judges and asylum officers are already trained to
consider all relevant legal issues in assessing a credible fear claim
or asylum application, and the final rule does not implement any
changes that would make adjudications more challenging than those that
are already conducted. For example, immigration judges already consider
issues of persecution, nexus, particular social group, frivolousness,
firm resettlement, and discretion in assessing the merit of an asylum
application, and the provision of clearer standards for considering
those issues in this rule does not add any operational burden or
increase the level of operational analysis required for adjudication.
Accordingly, the Departments do not expect the changes to increase the
adjudication time for immigration court proceedings involving asylum
applications or for reviews of negative fear determinations.
Depending on the manner in which DHS exercises its prosecutorial
discretion for aliens potentially subject to expedited removal, the
facts and circumstances of each individual alien's situation, DHS's
interpretation or the relevant regulations, and application of those
regulations by individual adjudicators, the changes may decrease the
number of cases of aliens subject to expedited removal that result in a
full hearing on an application for asylum. In all cases, however, an
alien will retain the opportunity to request immigration judge review
of DHS's initial fear determination.
The Departments are implementing changes that may affect any alien
subject to expedited removal who makes a fear claim and any alien who
applies for asylum, statutory withholding of removal, or protection
under the CAT regulations. The Departments note that these changes are
likely to result in fewer asylum grants annually due to clarifications
regarding the significance of discretionary considerations and changes
to the definition of ``firm resettlement.'' 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. As of September 30, 2020,
EOIR had 589,276 cases pending with an asylum application. EOIR,
Workload and Adjudication Statistics: Total Asylum Applications (Oct.
13, 2020), https://www.justice.gov/eoir/page/file/1106366/download. In
FY 2019, at the immigration court level, EOIR granted 18,816 asylum
applications and denied 45,285 asylum applications. See 85 FR at 36289.
An additional 27,112 asylum applications were abandoned, withdrawn, or
otherwise not adjudicated. Id. As of January 1, 2020, USCIS had 338,931
applications for asylum and for withholding of removal pending. Id. at
36289 & n.44. In FY 2019, USCIS received 96,861 asylum applications,
and approved 19,945 such applications. Id. at 36289 & n.45.
The Departments expect that the aliens most likely to be impacted
by this rule's provisions are those who are already unlikely to receive
a grant of asylum under existing law. Assuming DHS places those aliens
into expedited removal proceedings, the Departments have concluded that
it will be more likely that they would receive a more prompt
adjudication of their claims for asylum or withholding of removal than
they would under the existing regulations. Depending on the individual
circumstances of each case, this rule would mean that such aliens would
likely not remain in the United States--for years, potentially--pending
resolution of their claims.
An alien who is ineligible for asylum may still be eligible to
apply for the protection of withholding of removal under section
241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), or withholding of removal
under regulations issued pursuant to the legislation implementing U.S.
obligations under Article 3 of the CAT. See INA 241(b)(3), 8 U.S.C.
1231(b)(3); 8 CFR 208.16, 208.17 through 208.18, 1208.16, and 1208.17
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). To the
extent there are any direct impacts of this rule, they would almost
exclusively fall on that population. Further, 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.
Overall, the Departments assess that operational efficiencies will
likely result from these changes, which could, inter alia, reduce the
number of meritless claims before the immigration courts, provide the
Departments with the ability to more promptly grant relief or
protection to qualifying aliens, and ensure that those who do not
qualify for relief or protection are removed more efficiently than they
are under current rules.
F. Executive Order 12988: Criminal Justice Reform
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, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, 44 U.S.C 3501-3512,
agencies are required to submit to OMB, for review and approval, any
reporting requirements inherent in a rule. The changes made in this
final rule required DHS to revise USCIS Form I-589, Application for
Asylum and for Withholding of Removal, OMB Control Number 1615-0067.
DOJ and DHS invited public comments on the impact to the proposed
collection of information for 60 days. See 85 FR at 36290.
DOJ and DHS received multiple comments on the information
collection impacts of the proposed rule. Commenters expressed concern
that the proposed revisions significantly increase the time and cost
burdens for aliens seeking protection from persecution and torture, as
well as adding to the burden of immigration lawyers, asylum officers,
advocacy organizations, and immigration judges. DHS and DOJ have
summarized all of the comments related to information collection and
have provided responses in a document titled ``Form I-589 Public
Comments and Response Matrix,'' which is posted in the rulemaking
docket EOIR-2020-0003 at https://www.regulations.gov/. As a result of
the public comments, DHS has increased the burden estimate for the Form
I-589 and has updated the supporting statement submitted to OMB
accordingly. The supporting statement can be found at https://www.reginfo.gov/. The updated abstract is as follows:
USCIS Form I-589
Overview of Information Collection
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Asylum and for
Withholding of Removal.
[[Page 80385]]
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-589; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Form I-
589 is necessary to determine whether an alien applying for asylum or
withholding of removal in the United States is classified as a refugee
and is eligible to remain in the United States.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-589 is
approximately 114,000, and the estimated hourly burden per response is
18.5 \93\ hours. The estimated number of respondents providing
biometrics is 110,000, and the estimated hourly burden per response is
1.17 hours.
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\93\ This estimate is higher than the estimate provided in the
NPRM because USCIS reevaluated its projections and determined that
the hourly burden per response was likely to be higher than USCIS
had initially estimated, which also increased the total estimated
public burden (in hours).
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(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual burden associated with
this collection of information in hours is 2,237,700.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $70,406,400.\94\
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\94\ This estimate is higher than the estimate provided in the
NPRM because USCIS reevaluated its projections in response to public
comments suggesting that the monetary cost was likely to be higher
than USCIS had initially estimated.
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H. 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 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and functions (Government agencies).
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1244
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
DEPARTMENT OF HOMELAND SECURITY
Accordingly, for the reasons set forth in the preamble, 8 CFR parts
208 and 235 are amended as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for part 208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229; 8 CFR part 2.
0
2. Amend Sec. 208.1 by adding paragraphs (c) through (g) to read as
follows:
Sec. 208.1 General.
* * * * *
(c) Particular social group. For purposes of adjudicating an
application for asylum under section 208 of the Act or an application
for withholding of removal under section 241(b)(3) of the Act, a
particular social group is one that is based on an immutable or
fundamental characteristic, is defined with particularity, and is
recognized as socially distinct in the society at question. Such a
particular social group cannot be defined exclusively by the alleged
persecutory acts or harms and must also have existed independently of
the alleged persecutory acts or harms that form the basis of the claim.
The Secretary, in general, will not favorably adjudicate claims of
aliens who claim a fear of persecution on account of membership in a
particular social group consisting of or defined by the following
circumstances: Past or present criminal activity or association
(including gang membership); presence in a country with generalized
violence or a high crime rate; being the subject of a recruitment
effort by criminal, terrorist, or persecutory groups; the targeting of
the applicant for criminal activity for financial gain based on
perceptions of wealth or affluence; interpersonal disputes of which
governmental authorities were unaware or uninvolved; private criminal
acts of which governmental authorities were unaware or uninvolved; past
or present terrorist activity or association; past or present
persecutory activity or association; or status as an alien returning
from the United States. This list is nonexhaustive, and the substance
of the alleged particular social group, rather than the precise form of
its delineation, shall be considered in determining whether the group
falls within one of the categories on the list. No alien shall be found
to be a refugee or have it decided that the alien's life or freedom
would be threatened based on membership in a particular social group in
any case unless that person articulates on the record, or provides a
basis on the record for determining, the definition and boundaries of
the alleged particular social group. A failure to define, or provide a
basis for defining, a formulation of a particular social group before
an immigration judge shall waive any such claim for all purposes under
the Act, including on appeal. Any waived claim on this basis shall not
serve as the basis for any motion to reopen or reconsider for any
reason, including a claim of ineffective assistance of counsel unless
the alien complies with the procedural requirements for such a motion
and demonstrates that counsel's failure to define, or provide a basis
for defining, a formulation of a particular social group constituted
egregious conduct.
(d) Political opinion. For purposes of adjudicating an application
for asylum under section 208 of the Act or an application for
withholding of removal under section 241(b)(3) of the Act, a political
opinion is one expressed by or imputed to an applicant in which the
applicant possesses an ideal or conviction in support of the
furtherance of a discrete cause related to political control of a State
or a unit thereof. The Secretary, in general, will not favorably
adjudicate claims of aliens who claim a fear of persecution on account
of a political opinion defined solely by generalized disapproval of,
disagreement with, or opposition to criminal, terrorist, gang,
guerilla, or other non-state organizations absent expressive behavior
in furtherance of a cause against such organizations related
[[Page 80386]]
to efforts by the State to control such organizations or behavior that
is antithetical to or otherwise opposes the ruling legal entity of the
State or a legal sub-unit of the State. A person who has been forced to
abort a pregnancy or to undergo involuntary sterilization, or who has
been persecuted for failure or refusal to undergo such a procedure or
for other resistance to a coercive population control program, shall be
deemed to have been persecuted on account of political opinion, and a
person who has a well-founded fear that he or she will be forced to
undergo such a procedure or subject to persecution for such failure,
refusal, or resistance shall be deemed to have a well-founded fear of
persecution on account of political opinion.
(e) Persecution. For purposes of screening or adjudicating an
application for asylum under section 208 of the Act or an application
for withholding of removal under section 241(b)(3) of the Act,
persecution requires an intent to target a belief or characteristic, a
severe level of harm, and the infliction of a severe level of harm by
the government of a country or by persons or an organization that the
government was unable or unwilling to control. For purposes of
evaluating the severity of the level of harm, persecution is an extreme
concept involving a severe level of harm that includes actions so
severe that they constitute an exigent threat. Persecution does not
encompass the generalized harm that arises out of civil, criminal, or
military strife in a country, nor does it encompass all treatment that
the United States regards as unfair, offensive, unjust, or even
unlawful or unconstitutional. It does not include intermittent
harassment, including brief detentions; threats with no actual effort
to carry out the threats, except that particularized threats of severe
harm of an immediate and menacing nature made by an identified entity
may constitute persecution; or, non-severe economic harm or property
damage, though this list is nonexhaustive. The existence of laws or
government policies that are unenforced or infrequently enforced do
not, by themselves, constitute persecution, unless there is credible
evidence that those laws or policies have been or would be applied to
an applicant personally.
(f) Nexus. For purposes of adjudicating an application for asylum
under section 208 of the Act or an application or withholding of
removal under section 241(b)(3) of the Act, the Secretary, in general,
will not favorably adjudicate the claims of aliens who claim
persecution based on the following list of nonexhaustive circumstances:
(1) Interpersonal animus or retribution;
(2) Interpersonal animus in which the alleged persecutor has not
targeted, or manifested an animus against, other members of an alleged
particular social group in addition to the member who has raised the
claim at issue;
(3) Generalized disapproval of, disagreement with, or opposition to
criminal, terrorist, gang, guerilla, or other non-state organizations
absent expressive behavior in furtherance of a discrete cause against
such organizations related to control of a State or expressive behavior
that is antithetical to the State or a legal unit of the State;
(4) Resistance to recruitment or coercion by guerilla, criminal,
gang, terrorist or other non-state organizations;
(5) The targeting of the applicant for criminal activity for
financial gain based on wealth or affluence or perceptions of wealth or
affluence;
(6) Criminal activity;
(7) Perceived, past or present, gang affiliation; or,
(8) Gender.
(g) Evidence based on stereotypes. For purposes of adjudicating an
application for asylum under section 208 of the Act or an application
for withholding of removal under section 241(b)(3) of the Act, evidence
offered in support of such an application which promotes cultural
stereotypes about a country, its inhabitants, or an alleged persecutor,
including stereotypes based on race, religion, nationality, or gender,
shall not be admissible in adjudicating that application, provided that
nothing in this paragraph shall be construed as prohibiting the
submission of evidence that an alleged persecutor holds stereotypical
views of the applicant.
0
3. Amend Sec. 208.2 by adding paragraph (c)(1)(ix) to read as follows:
Sec. 208.2 Jurisdiction.
* * * * *
(c) * * *
(1) * * *
(ix) An alien found to have a credible fear of persecution,
reasonable possibility of persecution, or reasonable possibility of
torture in accordance with Sec. Sec. 208.30, 1003.42, or 1208.30.
* * * * *
0
4. Amend Sec. 208.5 by revising the first sentence of paragraph (a) to
read as follows:
Sec. 208.5 Special duties toward aliens in custody of DHS.
(a) General. When an alien in the custody of DHS requests asylum or
withholding of removal, or expresses a fear of persecution or harm upon
return to his or her country of origin or to agents thereof, DHS shall
make available the appropriate application forms and shall provide the
applicant with the information required by section 208(d)(4) of the
Act, including in the case of an alien who is in custody with a
positive credible fear or reasonable fear determination under 8 CFR
208.30 or 208.31, and except in the case of an alien who is in custody
pending a credible fear determination under 8 CFR 208.30 or a
reasonable fear determination pursuant to 8 CFR 208.31. * * *
* * * * *
0
5. Amend Sec. 208.6 by revising paragraphs (a) and (b) and adding
paragraphs (d) and (e) to read as follows:
Sec. 208.6 Disclosure to third parties.
(a) Information contained in or pertaining to any application for
refugee admission, asylum, withholding of removal under section
241(b)(3) of the Act, or protection under regulations issued pursuant
to the Convention Against Torture's implementing legislation, records
pertaining to any credible fear determination conducted pursuant to
Sec. 208.30, and records pertaining to any reasonable fear
determination conducted pursuant to Sec. 208.31, shall not be
disclosed without the written consent of the applicant, except as
permitted by this section or at the discretion of the Secretary.
(b) The confidentiality of other records kept by DHS and the
Executive Office for Immigration Review that indicate that a specific
alien has applied for refugee admission, asylum, withholding of removal
under section 241(b)(3) of the Act, or protection under regulations
issued pursuant to the Convention Against Torture's implementing
legislation, or has received a credible fear or reasonable fear
interview, or received a credible fear or reasonable fear review shall
also be protected from disclosure, except as permitted in this section.
DHS will coordinate with the Department of State to ensure that the
confidentiality of those records is maintained if they are transmitted
to Department of State offices in other countries.
* * * * *
(d)(1) Any information contained in an application for refugee
admission, asylum, withholding of removal under section 241(b)(3) of
the Act, or
[[Page 80387]]
protection under regulations issued pursuant to the Convention Against
Torture's implementing legislation, any relevant and applicable
information supporting that application, any information regarding an
alien who has filed such an application, and any relevant and
applicable information regarding an alien who has been the subject of a
reasonable fear or credible fear determination may be disclosed:
(i) As part of an investigation or adjudication of the merits of
that application or of any other application under the immigration
laws,
(ii) As part of any State or Federal criminal investigation,
proceeding, or prosecution;
(iii) Pursuant to any State or Federal mandatory reporting
requirement;
(iv) To deter, prevent, or ameliorate the effects of child abuse;
(v) As part of any proceeding arising under the immigration laws,
including proceedings arising under the Act; and
(vi) As part of the Government's defense of any legal action
relating to the alien's immigration or custody status including
petitions for review filed in accordance with 8 U.S.C. 1252.
(2) If information may be disclosed under paragraph (d)(1) of this
section, the disclosure provisions in paragraphs (a), (b), and (c) of
this section shall not apply.
(e) Nothing in this section shall be construed as prohibiting the
disclosure of information contained in an application for refugee
admission, asylum, withholding of removal under section 241(b)(3)(B) of
the Act, or protection under regulations issued pursuant to the
Convention Against Torture's implementing legislation, information
supporting that application, information regarding an alien who has
filed such an application, or information regarding an alien who has
been the subject of a reasonable fear or credible fear determination:
(1) Among employees and officers of the Department of Justice, the
Department of Homeland Security, the Department of State, the
Department of Health and Human Services, the Department of Labor, or a
U.S. national security agency having a need to examine the information
for an official purpose; or
(2) Where a United States Government employee or contractor has a
good faith and reasonable belief that disclosure is necessary to
prevent the commission of a crime, the furtherance of an ongoing crime,
or to ameliorate the effects of a crime.
0
6. Amend Sec. 208.13 by revising paragraphs (b)(3) introductory text
and (b)(3)(ii) and adding paragraphs (b)(3)(iii) and (iv) and (d) to
read as follows:
Sec. 208.13 Establishing asylum eligibility.
* * * * *
(b) * * *
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1)(i) and (ii) and (b)(2) of this
section, adjudicators should consider the totality of the relevant
circumstances regarding an applicant's prospects for relocation,
including the size of the country of nationality or last habitual
residence, the geographic locus of the alleged persecution, the size,
reach, or numerosity of the alleged persecutor, and the applicant's
demonstrated ability to relocate to the United States in order to apply
for asylum.
* * * * *
(ii) In cases in which the persecutor is a government or is
government-sponsored, it shall be presumed that internal relocation
would not be reasonable, unless DHS establishes by a preponderance of
the evidence that, under all the circumstances, it would be reasonable
for the applicant to relocate.
(iii) Regardless of whether an applicant has established
persecution in the past, in cases in which the persecutor is not the
government or a government-sponsored actor, or otherwise is a private
actor, there shall be a presumption that internal relocation would be
reasonable unless the applicant establishes, by a preponderance of the
evidence, that it would be unreasonable to relocate.
(iv) For purposes of determinations under paragraphs (b)(3)(ii) and
(iii) of this section, persecutors who are private actors--including
persecutors who are gang members, officials acting outside their
official capacity, family members who are not themselves government
officials, or neighbors who are not themselves government officials--
shall not be considered to be persecutors who are the government or
government-sponsored absent evidence that the government sponsored the
persecution.
* * * * *
(d) Discretion. Factors that fall short of grounds of mandatory
denial of an asylum application may constitute discretionary
considerations.
(1) The following are significant adverse discretionary factors
that a decision-maker shall consider, if applicable, in determining
whether an alien merits a grant of asylum in the exercise of
discretion:
(i) An alien's unlawful entry or unlawful attempted entry into the
United States unless such entry or attempted entry was made in
immediate flight from persecution in a contiguous country or unless
such entry or attempted entry was made by an alien under the age of 18
at the time the entry or attempted entry was made;
(ii) The failure of an alien to apply for protection from
persecution or torture in at least one country outside the alien's
country of citizenship, nationality, or last lawful habitual residence
through which the alien transited before entering the United States
unless:
(A) The alien received a final judgment denying the alien
protection in such country;
(B) The alien demonstrates that he or she satisfies the definition
of ``victim of a severe form of trafficking in persons'' provided in 8
CFR 214.11; or
(C) Such country or all such countries were, at the time of the
transit, not parties to the 1951 Convention relating to the Status of
Refugees, the 1967 Protocol relating to the Status of Refugees, or the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment; and
(iii) An alien's use of fraudulent documents to enter the United
States, unless the alien arrived in the United States by air, sea, or
land directly from the applicant's home country without transiting
through any other country.
(2)(i) The Secretary, except as provided in paragraph (d)(2)(ii) of
this section, will not favorably exercise discretion under section 208
of the Act for an alien who:
(A) Immediately prior to his arrival in the United States or en
route to the United States from the alien's country of citizenship,
nationality, or last lawful habitual residence, spent more than 14 days
in any one country unless:
(1) The alien demonstrates that he or she applied for protection
from persecution or torture in such country and the alien received a
final judgment denying the alien protection in such country;
(2) The alien demonstrates that he or she satisfies the definition
of ``victim of a severe form of trafficking in persons'' provided in 8
CFR 214.11; or
(3) Such country was, at the time of the transit, not a party to
the 1951 Convention relating to the Status of Refugees, the 1967
Protocol relating to the Status of Refugees, or the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
(B) Transits through more than one country between his country of
citizenship, nationality, or last habitual residence and the United
States unless:
[[Page 80388]]
(1) The alien demonstrates that he or she applied for protection
from persecution or torture in at least one such country and received a
final judgment denying the alien protection in that country;
(2) The alien demonstrates that he or she satisfies the definition
of ``victim of a severe form of trafficking in persons'' provided in 8
CFR 214.11; or
(3) All such countries were, at the time of the transit, not
parties to the 1951 Convention relating to the Status of Refugees, the
1967 Protocol relating to the Status of Refugees, or the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment;
(C) Would otherwise be subject to Sec. 208.13(c) but for the
reversal, vacatur, expungement, or modification of a conviction or
sentence, unless the alien was found not guilty;
(D) Accrued more than one year of unlawful presence in the United
States, as defined in sections 212(a)(9)(B)(ii) and (iii) of the Act,
prior to filing an application for asylum;
(E) At the time the asylum application is filed with DHS has:
(1) Failed to timely file (or timely file a request for an
extension of time to file) any required Federal, State, or local income
tax returns;
(2) Failed to satisfy any outstanding Federal, State, or local tax
obligations; or
(3) Has income that would result in tax liability under section 1
of the Internal Revenue Code of 1986 and that was not reported to the
Internal Revenue Service;
(F) Has had two or more prior asylum applications denied for any
reason;
(G) Has withdrawn a prior asylum application with prejudice or been
found to have abandoned a prior asylum application;
(H) Failed to attend an interview regarding his asylum application
with DHS, unless the alien shows by a preponderance of the evidence
that:
(1) Exceptional circumstances prevented the alien from attending
the interview; or
(2) The interview notice was not mailed to the last address
provided by the alien or his or her representative and neither the
alien nor the alien's representative received notice of the interview;
or
(I) Was subject to a final order of removal, deportation, or
exclusion and did not file a motion to reopen to seek asylum based on
changed country conditions within one year of those changes in country
conditions.
(ii) Where one or more of the adverse discretionary factors set
forth in paragraph (d)(2)(i) of this section are present, the
Secretary, in extraordinary circumstances, such as those involving
national security or foreign policy considerations, or cases in which
an alien, by clear and convincing evidence, demonstrates that the
denial or referral (which may result in the denial by an immigration
judge) of the application for asylum would result in exceptional and
extremely unusual hardship to the alien, may favorably exercise
discretion under section 208 of the Act, notwithstanding the
applicability of paragraph (d)(2)(i). Depending on the gravity of the
circumstances underlying the application of paragraph (d)(2)(i), a
showing of extraordinary circumstances might still be insufficient to
warrant a favorable exercise of discretion under section 208 of the
Act.
0
7. Revise Sec. 208.15 to read as follows:
Sec. 208.15 Definition of ``firm resettlement.''
(a) An alien is considered to be firmly resettled if, after the
events giving rise to the alien's asylum claim:
(1) The alien resided in a country through which the alien
transited prior to arriving in or entering the United States and--
(i) Received or was eligible for any permanent legal immigration
status in that country;
(ii) Resided in such a country with any non-permanent but
indefinitely renewable legal immigration status (including asylee,
refugee, or similar status but excluding status such as of a tourist);
or
(iii) Resided in such a country and could have applied for and
obtained any non-permanent but indefinitely renewable legal immigration
status in that country;
(2) The alien physically resided voluntarily, and without
continuing to suffer persecution or torture, in any one country for one
year or more after departing his country of nationality or last
habitual residence and prior to arrival in or entry into the United
States, provided that time spent in Mexico by an alien who is not a
native or citizen of Mexico solely as a direct result of being returned
to Mexico pursuant to section 235(b)(2)(C) of the Act or of being
subject to metering would not be counted for purposes of this
paragraph; or
(3)(i) The alien is a citizen of a country other than the one where
the alien alleges a fear of persecution and the alien was present in
that country after departing his country of nationality or last
habitual residence and prior to arrival in or entry into the United
States; or
(ii) The alien was a citizen of a country other than the one where
the alien alleges a fear of persecution, the alien was present in that
country after departing his country of nationality or last habitual
residence and prior to arrival in or entry into the United States, and
the alien renounced that citizenship after arriving in the United
States.
(b) The provisions of 8 CFR 1240.8(d) shall apply when the evidence
of record indicates that the firm resettlement bar may apply. In such
cases, the alien shall bear the burden of proving the bar does not
apply. Either DHS or the immigration judge may raise the issue of the
application of the firm resettlement bar based on the evidence of
record. The firm resettlement of an alien's parent(s) shall be imputed
to the alien if the resettlement occurred before the alien turned 18
and the alien resided with the alien's parents at the time of the firm
resettlement unless the alien establishes that he or she could not have
derived any permanent legal immigration status or any non-permanent but
indefinitely renewable legal immigration status (including asylee,
refugee, or similar status but excluding status such as of a tourist)
from the alien's parent.
0
8. Amend Sec. 208.16 by revising paragraphs (b)(3) introductory text
and (b)(3)(ii) and adding paragraphs (b)(3)(iii) and (iv) to read as
follows:
Sec. 208.16 Withholding of removal under section 241(b)(3)(B) of the
Act and withholding of removal under the Convention Against Torture.
* * * * *
(b)(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1) and (2) of this section,
adjudicators should consider the totality of the relevant circumstances
regarding an applicant's prospects for relocation, including the size
of the country of nationality or last habitual residence, the
geographic locus of the alleged persecution, the size, reach, or
numerosity of the alleged persecutor, and the applicant's demonstrated
ability to relocate to the United States in order to apply for
withholding of removal.
* * * * *
(ii) In cases in which the persecutor is a government or is
government-sponsored, it shall be presumed that internal relocation
would not be reasonable, unless DHS establishes by a preponderance of
the evidence that, under the totality of the circumstances, it would be
reasonable for the applicant to relocate.
(iii) Regardless of whether an applicant has established
persecution in the past, in cases in which the
[[Page 80389]]
persecutor is not the government or a government-sponsored actor, or
otherwise is a private actor, there shall be a presumption that
internal relocation would be reasonable unless the applicant
establishes, by a preponderance of the evidence, that it would be
unreasonable to relocate.
(iv) For purposes of determinations under paragraphs (b)(3)(ii) and
(iii) of this section, persecutors who are private actors, including
but not limited to persecutors who are gang members, public officials
who are not acting under color of law, or family members who are not
themselves government officials or neighbors who are not themselves
government officials, shall not be considered to be persecutors who are
the government or government-sponsored absent evidence that the
government sponsored the persecution.
* * * * *
0
9. Amend Sec. 208.18 by revising paragraphs (a)(1) and (7) to read as
follows:
Sec. 208.18 Implementation of the Convention Against Torture.
(a) * * *
(1) Torture is defined as any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or her or a third person
information or a confession, punishing him or her for an act he or she
or a third person has committed or is suspected of having committed, or
intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or
acquiescence of a public official acting in an official capacity or
other person acting in an official capacity. Pain or suffering
inflicted by a public official who is not acting under color of law
shall not constitute pain or suffering inflicted by or at the
instigation of or with the consent or acquiescence of a public official
acting in an official capacity or other person acting in an official
capacity, although a different public official acting in an official
capacity or other person acting in an official capacity could
instigate, consent to, or acquiesce in the pain or suffering inflicted
by the public official who is not acting under color of law.
* * * * *
(7) Acquiescence of a public official requires that the public
official, prior to the activity constituting torture, have awareness of
such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity. Such awareness requires a finding
of either actual knowledge or willful blindness. Willful blindness
means that the public official acting in an official capacity or other
person acting in an official capacity was aware of a high probability
of activity constituting torture and deliberately avoided learning the
truth; it is not enough that such public official acting in an official
capacity or other person acting in an official capacity was mistaken,
recklessly disregarded the truth, or negligently failed to inquire. In
order for a public official to breach his or her legal responsibility
to intervene to prevent activity constituting torture, the official
must have been charged with preventing the activity as part of his or
her duties and have failed to intervene. No person will be deemed to
have breached a legal responsibility to intervene if such person is
unable to intervene, or if the person intervenes but is unable to
prevent the activity that constitutes torture.
* * * * *
0
10. Revise Sec. 208.20 to read as follows:
Sec. 208.20 Determining if an asylum application is frivolous.
(a) For applications filed on or after April 1, 1997, and before
January 11, 2021, an applicant is subject to the provisions of section
208(d)(6) of the Act only if the alien received the notice required by
section 208(d)(4)(A) of the Act and a final order by an immigration
judge or the Board of Immigration Appeals specifically finds that the
alien knowingly filed a frivolous asylum application. An application is
frivolous if:
(1) Any of the material elements in the asylum application is
deliberately fabricated, and the immigration judge or the Board is
satisfied that the applicant, during the course of the proceedings, has
had sufficient opportunity to account for any discrepancies or
implausible aspects of the claim.
(2) Paragraphs (b) through (f) of this section shall only apply to
applications filed on or after January 11, 2021.
(b) For applications filed on or after January 11, 2021, an asylum
officer may determine that the applicant knowingly filed a frivolous
asylum application and may refer the applicant to an immigration judge
on that basis, so long as the applicant has received the notice
required by section 208(d)(4)(A) of the Act. For any application
referred to an immigration judge, an asylum officer's determination
that an application is frivolous will not render an applicant
permanently ineligible for immigration benefits unless an immigration
judge or the Board makes a finding of frivolousness as described in
paragraph 1208.20(c).
(c) For applications filed on or after January 11, 2021, an asylum
application is frivolous if it:
(1) Contains a fabricated material element;
(2) Is premised upon false or fabricated evidence unless the
application would have been granted without the false or fabricated
evidence;
(3) Is filed without regard to the merits of the claim; or
(4) Is clearly foreclosed by applicable law.
(d) If the alien has been provided the warning required by section
208(d)(4)(A) of the Act, he or she need not be given any additional or
further opportunity to account for any issues with his or her claim
prior to the entry of a frivolousness finding.
(e) An asylum application may be found frivolous even if it was
untimely filed.
(f) A withdrawn asylum application may also be found frivolous
unless:
(1) The alien wholly disclaims the application and withdraws it
with prejudice;
(2) The alien is eligible for and agrees to accept voluntary
departure for a period of no more than 30 days pursuant to section
240B(a) of the Act;
(3) The alien withdraws any and all other applications for relief
or protection with prejudice; and
(4) The alien waives his right to appeal and any rights to file,
for any reason, a motion to reopen or reconsider.
(g) For purposes of this section, a finding that an alien knowingly
filed a frivolous asylum application shall not preclude the alien from
seeking withholding of removal under section 241(b)(3) of the Act or
protection under the regulations issued pursuant to the Convention
Against Torture's implementing legislation.
0
11. Add Sec. 208.25 to read as follows:
Sec. 208.25 Severability.
The provisions of part 208 are separate and severable from one
another. In the event that any provision in part 208 is stayed,
enjoined, not implemented, or otherwise held invalid, the remaining
provisions shall nevertheless be implemented as an independent rule and
continue in effect.
0
12. Amend Sec. 208.30 by:
0
a. Revising the section heading; and
0
b. Revising paragraphs (a), (b), (c), (d) introductory text, (d)(1) and
(2), (d)(5) and (6), (e) introductory text, (e)(1) through (5), (e)(6)
introductory text, (e)(6)(ii), (e)(6)(iii) introductory text,
[[Page 80390]]
(e)(6)(iv), the first sentence of paragraph (e)(7) introductory text,
and paragraphs (e)(7)(ii), (f), and (g).
The revisions read as follows:
Sec. 208.30 Credible fear of persecution, reasonable possibility of
persecution, and reasonable possibility of torture determinations
involving stowaways and applicants for admission who are found
inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act,
whose entry is limited or suspended under section 212(f) or 215(a)(1)
of the Act, or who failed to apply for protection from persecution in a
third country where potential relief is available while en route to the
United States.
(a) Jurisdiction. The provisions of this subpart B apply to aliens
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to
section 235(b)(1)(B) of the Act, DHS has exclusive jurisdiction to make
the determinations described in this subpart B. Except as otherwise
provided in this subpart B, paragraphs (b) through (g) of this section
are the exclusive procedures applicable to stowaways and applicants for
admission who are found inadmissible pursuant to section 212(a)(6)(C)
or 212(a)(7) of the Act and who receive fear interviews,
determinations, and reviews under section 235(b)(1)(B) of the Act.
Prior to January 1, 2030, an alien physically present in or arriving in
the Commonwealth of the Northern Mariana Islands is ineligible to apply
for asylum and may only establish eligibility for withholding of
removal pursuant to section 241(b)(3) of the Act or withholding or
deferral of removal under the regulations issued pursuant to the
Convention Against Torture's implementing legislation.
(b) Process and Authority. If an alien subject to section 235(a)(2)
or 235(b)(1) of the Act indicates an intention to apply for asylum, or
expresses a fear of persecution or torture, or a fear of return to his
or her country, the inspecting officer shall not proceed further with
removal of the alien until the alien has been referred for an interview
by an asylum officer in accordance with this section. An asylum officer
shall then screen the alien for a credible fear of persecution, and as
necessary, a reasonable possibility of persecution and reasonable
possibility of torture. An asylum officer, as defined in section
235(b)(1)(E) of the Act, has the authorities described in 8 CFR
208.9(c) and must conduct an evaluation and make a determination
consistent with this section.
(c) Treatment of dependents. A spouse or child of an alien may be
included in that alien's fear evaluation and determination, if such
spouse or child:
(1) Arrived in the United States concurrently with the principal
alien; and
(2) Desires to be included in the principal alien's determination.
However, any alien may have his or her evaluation and determination
made separately, if he or she expresses such a desire.
(d) Interview. The asylum officer will conduct the interview in a
nonadversarial manner, separate and apart from the general public. The
purpose of the interview shall be to elicit all relevant and useful
information bearing on whether the alien can establish a credible fear
of persecution, reasonable possibility of persecution, or reasonable
possibility of torture. The asylum officer shall conduct the interview
as follows:
(1) If the officer conducting the interview determines that the
alien is unable to participate effectively in the interview because of
illness, fatigue, or other impediments, the officer may reschedule the
interview.
(2) At the time of the interview, the asylum officer shall verify
that the alien has received in writing the relevant information
regarding the fear determination process. The officer shall also
determine that the alien has an understanding of the fear determination
process.
* * * * *
(5) If the alien is unable to proceed effectively in English, and
if the asylum officer is unable to proceed competently in a language
the alien speaks and understands, the asylum officer shall arrange for
the assistance of an interpreter in conducting the interview. The
interpreter must be at least 18 years of age and may not be the alien's
attorney or representative of record, a witness testifying on the
alien's behalf, a representative or employee of the alien's country of
nationality, or, if the alien is stateless, the alien's country of last
habitual residence.
(6) The asylum officer shall create a summary of the material facts
as stated by the alien. At the conclusion of the interview, the officer
shall review the summary with the alien and provide the alien with an
opportunity to correct any errors therein.
(e) Procedures for determining credible fear of persecution,
reasonable possibility of persecution, and reasonable possibility of
torture.
(1) An alien establishes a credible fear of persecution if there is
a significant possibility the alien can establish eligibility for
asylum under section 208 of the Act. ``Significant possibility'' means
a substantial and realistic possibility of succeeding. When making such
a determination, the asylum officer shall take into account:
(i) The credibility of the statements made by the alien in support
of the alien's claim;
(ii) Such other facts as are known to the officer, including
whether the alien could avoid any future harm by relocating to another
part of his or her country, if under all the circumstances it would be
reasonable to expect the alien to do so; and
(iii) The applicability of any bars to being able to apply for
asylum or to eligibility for asylum set forth at section 208(a)(2)(B)-
(C) and (b)(2) of the Act, including any bars established by regulation
under section 208(b)(2)(C) of the Act.
(2) An alien establishes a reasonable possibility of persecution if
there is a reasonable possibility that the alien would be persecuted on
account of his or her race, religion, nationality, membership in a
particular social group, or political opinion in the country of
removal. When making such determination, the officer will take into
account:
(i) The credibility of the statements made by the alien in support
of the alien's claim;
(ii) Such other facts as are known to the officer, including
whether the alien could avoid a future threat to his or her life or
freedom by relocating to another part of the proposed country of
removal and, under all circumstances, it would be reasonable to expect
the applicant to do so; and
(iii) The applicability of any bars at section 241(b)(3)(B) of the
Act.
(3) An alien establishes a reasonable possibility of torture if
there is a reasonable possibility that the alien would be tortured in
the country of removal, consistent with the criteria in 8 CFR
208.16(c), 8 CFR 208.17, and 8 CFR 208.18. The alien must demonstrate a
reasonable possibility that he or she will suffer severe pain or
suffering in the country of removal, and that the feared harm would
comport with the other requirements of 8 CFR 208.18(a)(1) through (8).
When making such a determination, the asylum officer shall take into
account:
(i) The credibility of the statements made by alien in support of
the alien's claim, and
(ii) Such other facts as are known to the officer, including
whether the alien could relocate to a part of the country of removal
where he or she is not likely to be tortured.
[[Page 80391]]
(4) In all cases, the asylum officer will create a written record
of his or her determination, including a summary of the material facts
as stated by the alien, any additional facts relied on by the officer,
and the officer's determination of whether, in light of such facts, the
alien has established a credible fear of persecution, reasonable
possibility of persecution, or reasonable possibility of torture. In
determining whether the alien has a credible fear of persecution, as
defined in section 235(b)(1)(B)(v) of the Act, or a reasonable
possibility of persecution or torture, the asylum officer shall
consider whether the alien's case presents novel or unique issues that
merit consideration in a full hearing before an immigration judge.
(5)(i)(A) Except as provided in paragraph (e)(5)(ii) or (iii) or
paragraph (e)(6) or (7) of this section, if an alien would be able to
establish a credible fear of persecution but for the fact that the
alien is subject to one or more of the mandatory bars to applying for
asylum or being eligible for asylum contained in section 208(a)(2)(B)-
(D) and (b)(2) of the Act, including any bars established by regulation
under section 208(b)(2)(C) of the Act, then the asylum officer will
enter a negative credible fear of persecution determination with
respect to the alien's eligibility for asylum.
(B) If an alien described in paragraph (e)(5)(i)(A) of this section
is able to establish either a reasonable possibility of persecution
(including by establishing that he or she is not subject to one or more
of the mandatory bars to eligibility for withholding of removal
contained in section 241(b)(3)(B) of the Act) or a reasonable
possibility of torture, then the asylum officer will enter a positive
reasonable possibility of persecution or torture determination, as
applicable. The Department of Homeland Security shall place the alien
in asylum-and-withholding-only proceedings under 8 CFR 208.2(c)(1) for
full consideration of the alien's claim for withholding of removal
under section 241(b)(3) of the Act or withholding or deferral of
removal under the regulations issued pursuant to the implementing
legislation for the Convention Against Torture.
(C) If an alien described in paragraph (e)(5)(i)(A) of this section
fails to establish either a reasonable possibility of persecution
(including by failing to establish that he or she is not subject to one
or more of the mandatory bars to eligibility for withholding of removal
contained in section 241(b)(3)(B) of the Act) or a reasonable
possibility of torture, the asylum officer will provide the alien with
a written notice of decision, which will be subject to immigration
judge review consistent with paragraph (g) of this section, except that
the immigration judge will review the fear findings under the
reasonable possibility standard instead of the credible fear of
persecution standard described in paragraph (g) of this section and in
8 CFR 1208.30(g).
(ii) If the alien is found to be an alien described in 8 CFR
208.13(c)(3), then the asylum officer shall enter a negative credible
fear determination with respect to the alien's application for asylum.
The Department shall nonetheless place the alien in asylum-and-
withholding-only proceedings under 8 CFR 208.2(c)(1) for full
consideration of the alien's claim for withholding of removal under
section 241(b)(3) of the Act, or for withholding or deferral of removal
under the regulations issued pursuant to the implementing legislation
for the Convention Against Torture, if the alien establishes,
respectively, a reasonable possibility of persecution or torture.
However, if an alien fails to establish, during the interview with the
asylum officer, a reasonable possibility of either persecution or
torture, the asylum officer will provide the alien with a written
notice of decision, which will be subject to immigration judge review
consistent with paragraph (g) of this section, except that the
immigration judge will review the fear of persecution or torture
findings under the reasonable possibility standard instead of the
credible fear standard described in paragraph (g) of this section and
in 8 CFR 1208.30(g).
(iii) If the alien is found to be an alien described in 8 CFR
208.13(c)(4), then the asylum officer shall enter a negative credible
fear determination with respect to the alien's application for asylum.
The Department shall nonetheless place the alien in asylum-and-
withholding-only proceedings under 8 CFR 208.2(c)(1) for full
consideration of the alien's claim for withholding of removal under
section 241(b)(3) of the Act or withholding of deferral of removal
under the regulations issued pursuant to the implementing legislation
for the Convention Against Torture if the alien establishes,
respectively, a reasonable possibility of persecution or torture.
However, if an alien fails to establish, during the interview with the
asylum officer, a reasonable possibility of either persecution or
torture, the asylum officer will provide the alien with a written
notice of decision, which will be subject to immigration judge review
consistent with paragraph (g) of this section, except that the
immigration judge will review the fear of persecution or torture
findings under the reasonable possibility standard instead of the
credible fear standard described in paragraph (g) of this section and
in 8 CFR 1208.30(g).
(6) Prior to any determination concerning whether an alien arriving
in the United States at a U.S.-Canada land border port-of-entry or in
transit through the U.S. during removal by Canada has a credible fear
of persecution, reasonable possibility of persecution, or reasonable
possibility of torture, the asylum officer shall conduct a threshold
screening interview to determine whether such an alien is ineligible to
apply for asylum pursuant to section 208(a)(2)(A) of the Act and
subject to removal to Canada by operation of the Agreement Between the
Government of the United States and the Government of Canada For
Cooperation in the Examination of Refugee Status Claims from Nationals
of Third Countries (``Agreement''). In conducting this threshold
screening interview, the asylum officer shall apply all relevant
interview procedures outlined in paragraph (d) of this section,
provided, however, that paragraph (d)(2) of this section shall not
apply to aliens described in this paragraph (e)(6). The asylum officer
shall advise the alien of the Agreement's exceptions and question the
alien as to applicability of any of these exceptions to the alien's
case.
* * * * *
(ii) If the alien establishes by a preponderance of the evidence
that he or she qualifies for an exception under the terms of the
Agreement, the asylum officer shall make a written notation of the
basis of the exception, and then proceed immediately to a determination
concerning whether the alien has a credible fear of persecution,
reasonable possibility of persecution, or reasonable possibility of
torture under paragraph (d) of this section.
(iii) An alien qualifies for an exception to the Agreement if the
alien is not being removed from Canada in transit through the United
States and:
* * * * *
(iv) As used in paragraphs (e)(6)(iii)(B), (C), and (D) of this
section only, ``legal guardian'' means a person currently vested with
legal custody of such an alien or vested with legal authority to act on
the alien's behalf, provided that such an alien is both unmarried and
less than 18 years of age, and provided further that any dispute with
respect to whether an individual is a legal guardian will be resolved
on the basis of U.S. law.
(7) When an immigration officer has made an initial determination
that an alien, other than an alien described in
[[Page 80392]]
paragraph (e)(6) of this section and regardless of whether the alien is
arriving at a port of entry, appears to be subject to the terms of an
agreement authorized by section 208(a)(2)(A) of the Act, and seeks the
alien's removal consistent with that provision, prior to any
determination concerning whether the alien has a credible fear of
persecution, reasonable possibility of persecution, or a reasonable
possibility of torture, the asylum officer shall conduct a threshold
screening interview to determine whether the alien is ineligible to
apply for asylum in the United States and is subject to removal to a
country (``receiving country'') that is a signatory to the applicable
agreement authorized by section 208(a)(2)(A) of the Act, other than the
U.S.-Canada Agreement effectuated in 2004. * * *
* * * * *
(ii) If the alien establishes by a preponderance of the evidence
that he or she qualifies for an exception under the terms of the
applicable agreement, or would more likely than not be persecuted on
account of his or her race, religion, nationality, membership in a
particular social group, or tortured, in the receiving country, the
asylum officer shall make a written notation to that effect, and may
then proceed to determine whether any other agreement is applicable to
the alien under the procedures set forth in this paragraph (e)(7). If
the alien establishes by a preponderance of the evidence that he or she
qualifies for an exception under the terms of each of the applicable
agreements, or would more likely than not be persecuted on account of
his or her race, religion, nationality, membership in a particular
social group, or tortured, in each of the prospective receiving
countries, the asylum officer shall make a written notation to that
effect, and then proceed immediately to a determination concerning
whether the alien has a credible fear of persecution, reasonable
possibility of persecution, or a reasonable possibility of torture,
under paragraph (d) of this section.
* * * * *
(f) Procedures for a positive fear determination. If, pursuant to
paragraph (e) of this section, an alien stowaway or an alien subject to
expedited removal establishes either a credible fear of persecution,
reasonable possibility of persecution, or a reasonable possibility of
torture:
(1) DHS shall issue a Notice of Referral to Immigration Judge for
asylum-and-withholding-only proceedings under 8 CFR 208.2(c)(1).
(2) Parole of the alien may be considered only in accordance with
section 212(d)(5) of the Act and 8 CFR 212.5 of this chapter.
(g) Procedures for a negative fear determination. (1) If, pursuant
to paragraphs (e) and (f) of this section, an alien stowaway or an
alien subject to expedited removal does not establish a credible fear
of persecution, reasonable possibility of persecution, or reasonable
possibility of torture, DHS shall provide the alien with a written
notice of decision and inquire whether the alien wishes to have an
immigration judge review the negative determination, in accordance with
section 235(b)(1)(B)(iii)(III) of the Act and this Sec. 208.30. The
alien must indicate whether he or she desires such review on a Record
of Negative Fear Finding and Request for Review by Immigration Judge.
If the alien refuses to make an indication, DHS shall consider such a
response as a decision to decline review.
(i) If the alien requests such review, DHS shall arrange for
detention of the alien and serve him or her with a Notice of Referral
to Immigration Judge, for review of the negative fear determination in
accordance with paragraph (g)(2) of this section.
(ii) If the alien is not a stowaway and does not request a review
by an immigration judge, DHS shall order the alien removed with a
Notice and Order of Expedited Removal, after review by a supervisory
officer.
(iii) If the alien is a stowaway and the alien does not request a
review by an immigration judge, DHS shall complete removal proceedings
in accordance with section 235(a)(2) of the Act. (2) Review by
immigration judge of a negative fear determination.
(i) Immigration judges shall review negative fear determinations as
provided in 8 CFR 1208.30(g). DHS, however, may reconsider a negative
credible fear finding that has been concurred upon by an immigration
judge after providing notice of its reconsideration to the immigration
judge.
(ii) DHS shall provide the record of any negative fear
determinations being reviewed, including copies of the Notice of
Referral to Immigration Judge, the asylum officer's notes, the summary
of the material facts, and other materials upon which the determination
was based, to the immigration judge with the negative fear
determination.
0
13. Amend Sec. 208.31 by revising paragraphs (f) and (g) to read as
follows:
Sec. 208.31 Reasonable fear of persecution or torture determinations
involving aliens ordered removed under section 238(b) of the Act and
aliens whose removal is reinstated under section 241(a)(5) of the Act.
* * * * *
(f) Removal of aliens with no reasonable fear of persecution or
torture. If the asylum officer determines that the alien has not
established a reasonable fear of persecution or torture, the asylum
officer shall inform the alien in writing of the decision and shall
inquire whether the alien wishes to have an immigration judge review
the negative decision, using the Record of Negative Reasonable Fear
Finding and Request for Review by Immigration Judge, on which the alien
must indicate whether he or she desires such review. If the alien
refuses to make an indication, DHS shall consider such a response as a
decision to decline review.
(g) Review by immigration judge. The asylum officer's negative
decision regarding reasonable fear shall be subject to review by an
immigration judge upon the alien's request. If the alien requests such
review, the asylum officer shall serve him or her with a Notice of
Referral to Immigration Judge. The record of determination, including
copies of the Notice of Referral to Immigration Judge, the asylum
officer's notes, the summary of the material facts, and other materials
upon which the determination was based shall be provided to the
immigration judge with the negative determination. In the absence of
exceptional circumstances, such review shall be conducted by the
immigration judge within 10 days of the filing of the Notice of
Referral to Immigration Judge with the immigration court. Upon review
of the asylum officer's negative reasonable fear determination:
(1) If the immigration judge concurs with the asylum officer's
determination that the alien does not have a reasonable fear of
persecution or torture, the case shall be returned to DHS for removal
of the alien. No appeal shall lie from the immigration judge's
decision.
(2) If the immigration judge finds that the alien has a reasonable
fear of persecution or torture, the alien may submit an Application for
Asylum and for Withholding of Removal.
(i) The immigration judge shall consider only the alien's
application for withholding of removal under 8 CFR 1208.16 and shall
determine whether the alien's removal to the country of removal must be
withheld or deferred.
(ii) Appeal of the immigration judge's decision whether removal
must be
[[Page 80393]]
withheld or deferred lies with the Board of Immigration Appeals. If the
alien or DHS appeals the immigration judge's decision, the Board shall
review only the immigration judge's decision regarding the alien's
eligibility for withholding or deferral of removal under 8 CFR 1208.16.
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
0
14. The authority citation for part 235 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 1225,
1226, 1228, 1365a note, 1365b, 1379, 1731-32; Title VII of Public
Law 110-229; 8 U.S.C. 1185 note (section 7209 of Public Law 108-
458); Public Law 112-54.
0
15. Amend Sec. 235.6 by revising paragraphs (a)(1)(ii) and (a)(2)(i)
and (iii) and adding paragraph (c) to read as follows:
Sec. 235.6 Referral to immigration judge.
(a) * * *
(1) * * *
(ii) If an immigration officer verifies that an alien subject to
expedited removal under section 235(b)(1) of the Act has been admitted
as a lawful permanent resident or refugee, or granted asylum, or, upon
review pursuant to Sec. 235.3(b)(5)(iv) of chapter I, an immigration
judge determines that the alien was once so admitted or granted asylum,
provided that such status has not been terminated by final
administrative action, and the DHS initiates removal proceedings
against the alien under section 240 of the Act.
* * * * *
(2) * * *
(i) If an asylum officer determines that the alien does not have a
credible fear of persecution, reasonable possibility of persecution, or
reasonable possibility of torture, and the alien requests a review of
that determination by an immigration judge; or
* * * * *
(iii) If an immigration officer refers an applicant in accordance
with the provisions of 8 CFR 208.30 or 8 CFR 208.31.
* * * * *
(c) The provisions of part 235 are separate and severable from one
another. In the event that any provision in part 235 is stayed,
enjoined, not implemented, or otherwise held invalid, the remaining
provisions shall nevertheless be implemented as an independent rule and
continue in effect.
DEPARTMENT OF JUSTICE
Accordingly, for the reasons set forth in the preamble, 8 CFR parts
1003, 1208, 1212, 1235, and 1244 are amended as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
16. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Public Law 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Public Law 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Public Law 106-554, 114 Stat. 2763A-326 to-328.
0
17. Amend Sec. 1003.1 by revising paragraph (b)(9) to read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
* * * * *
(b) * * *
(9) Decisions of Immigration Judges in asylum proceedings pursuant
to Sec. 1208.2(b) and (c) of this chapter.
* * * * *
0
18. Amend Sec. 1003.42 by revising the section heading and paragraphs
(a), (b), (d) through (g), (h)(1), and the last sentence in paragraph
(h)(3) and adding paragraph (i) to read as follows:
Sec. 1003.42 Review of credible fear of persecution, reasonable
possibility of persecution, and reasonable possibility of torture
determinations.
(a) Referral. Jurisdiction for an immigration judge to review a
negative fear determination by an asylum officer pursuant to section
235(b)(1)(B) of the Act shall commence with the filing by DHS of the
Notice of Referral to Immigration Judge. DHS shall also file with the
notice of referral a copy of the written record of determination as
defined in section 235(b)(1)(B)(iii)(II) of the Act, including a copy
of the alien's written request for review, if any.
(b) Record of proceeding. The Immigration Court shall create a
Record of Proceeding for a review of a negative fear determination.
This record shall not be merged with any later proceeding involving the
same alien.
* * * * *
(d) Standard of review. (1) The immigration judge shall make a de
novo determination as to whether there is a significant possibility,
taking into account the credibility of the statements made by the alien
in support of the alien's claim, whether the alien is subject to any
mandatory bars to applying for asylum or being eligible for asylum
under section 208(a)(2)(B)-(D) and (b)(2) of the Act, including any
bars established by regulation under section 208(b)(2)(C) of the Act,
and such other facts as are known to the immigration judge, that the
alien could establish his or her ability to apply for or be granted
asylum under section 208 of the Act. The immigration judge shall make a
de novo determination as to whether there is a reasonable possibility,
taking into account the credibility of the statements made by the alien
in support of the alien's claim, whether the alien is subject to any
mandatory bars to eligibility for withholding of removal under section
241(b)(3)(B) of the Act, and such other facts as are known to the
immigration judge, that the alien would be persecuted on account of his
or her race, religion, nationality, membership in a particular social
group, or political opinion in the country of removal, consistent with
the criteria in 8 CFR 1208.16(b). The immigration judge shall also make
a de novo determination as to whether there is a reasonable
possibility, taking into account the credibility of the statements made
by the alien in support of the alien's claim and such other facts as
are known to the immigration judge, that the alien would be tortured in
the country of removal, consistent with the criteria in 8 CFR
1208.16(c), 8 CFR 1208.17, and 8 CFR 1208.18.
(2) If the alien is determined to be an alien described in 8
CFR208.13(c)(3) or 8 CFR 1208.13(c)(3) and is determined to lack a
reasonable possibility of persecution or torture under 8 CFR
208.30(e)(5)(ii), the Immigration Judge shall first review de novo the
determination that the alien is described in 8 CFR 208.13(c)(3) or 8
CFR 1208.13(c)(3) prior to any further review of the asylum officer's
negative fear determination.
(3) If the alien is determined to be an alien described in 8 CFR
208.13(c)(4) or 8 CFR 1208.13(c)(4) and is determined to lack a
reasonable possibility of persecution or torture under 8 CFR
208.30(e)(5)(iii), the immigration judge shall first review de novo the
determination that the alien is described in 8 CFR 208.13(c)(4) or 8
CFR 1208.13(c)(4) prior to any further review of the asylum officer's
negative fear determination.
(e) Timing. The immigration judge shall conclude the review to the
maximum extent practicable within 24 hours, but in no case later than 7
days after the date the supervisory asylum officer has approved the
asylum officer's
[[Page 80394]]
negative credible fear determination issued on the Record of Negative
Credible Fear Finding and Request for Review.
(f) Decision. (1) The decision of the immigration judge shall be
rendered in accordance with the provisions of 8 CFR 1208.30(g)(2). In
reviewing the negative fear determination by DHS, the immigration judge
shall apply relevant precedent issued by the Board of Immigration
Appeals, the Attorney General, the Federal circuit court of appeals
having jurisdiction over the immigration court where the Request for
Review is filed, and the Supreme Court.
(2) No appeal shall lie from a review of a negative fear
determination made by an Immigration Judge, but the Attorney General,
in the Attorney General's sole and unreviewable discretion, may direct
that the Immigration Judge refer a case for the Attorney General's
review following the Immigration Judge's review of a negative fear
determination.
(3) In any case the Attorney General decides, the Attorney
General's decision shall be stated in writing and shall be transmitted
to the Board for transmittal and service as provided in 8 CFR
1003.1(f). Such decision by the Attorney General may be designated as
precedent as provided in 8 CFR 1003.1(g).
(g) Custody. An immigration judge shall have no authority to review
an alien's custody status in the course of a review of a negative fear
determination made by DHS.
(h) * * *
(1) Arriving alien. An immigration judge has no jurisdiction to
review a determination by an asylum officer that an arriving alien is
not eligible to apply for asylum pursuant to the 2002 U.S.-Canada
Agreement formed under section 208(a)(2)(A) of the Act and should be
returned to Canada to pursue his or her claims for asylum or other
protection under the laws of Canada. See 8 CFR 208.30(e)(6). However,
in any case where an asylum officer has found that an arriving alien
qualifies for an exception to that Agreement, an immigration judge does
have jurisdiction to review a negative fear finding made thereafter by
the asylum officer as provided in this section.
* * * * *
(3) * * * However, if the asylum officer has determined that the
alien may not or should not be removed to a third country under section
208(a)(2)(A) of the Act and subsequently makes a negative fear
determination, an immigration judge has jurisdiction to review the
negative fear finding as provided in this section.
* * * * *
(i) Severability. The provisions of part 1003 are separate and
severable from one another. In the event that any provision in part
1003 is stayed, enjoined, not implemented, or otherwise held invalid,
the remaining provisions shall nevertheless be implemented as an
independent rule and continue in effect.
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
19. The authority citation for part 1208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229.
0
20. Amend Sec. 1208.1 by adding paragraphs (c) through (g) to read as
follows:
Sec. 1208.1 General.
* * * * *
(c) Particular social group. For purposes of adjudicating an
application for asylum under section 208 of the Act or an application
for withholding of removal under section 241(b)(3) of the Act, a
particular social group is one that is based on an immutable or
fundamental characteristic, is defined with particularity, and is
recognized as socially distinct in the society at question. Such a
particular social group cannot be defined exclusively by the alleged
persecutory acts or harm and must also have existed independently of
the alleged persecutory acts or harm that forms the basis of the claim.
The Attorney General, in general, will not favorably adjudicate claims
of aliens who claim a fear of persecution on account of membership in a
particular social group consisting of or defined by the following
circumstances: past or present criminal activity or association
(including gang membership); presence in a country with generalized
violence or a high crime rate; being the subject of a recruitment
effort by criminal, terrorist, or persecutory groups; the targeting of
the applicant for criminal activity for financial gain based on
perceptions of wealth or affluence; interpersonal disputes of which
governmental authorities were unaware or uninvolved; private criminal
acts of which governmental authorities were unaware or uninvolved; past
or present terrorist activity or association; past or present
persecutory activity or association; or, status as an alien returning
from the United States. This list is nonexhaustive, and the substance
of the alleged particular social group, rather than the precise form of
its delineation, shall be considered in determining whether the group
falls within one of the categories on the list. No alien shall be found
to be a refugee or have it decided that the alien's life or freedom
would be threatened based on membership in a particular social group in
any case unless that person first articulates on the record, or
provides a basis on the record for determining, the definition and
boundaries of the alleged particular social group. A failure to define,
or provide a basis for defining, a formulation of a particular social
group before an immigration judge shall waive any such claim for all
purposes under the Act, including on appeal. Any waived claim on this
basis shall not serve as the basis for any motion to reopen or
reconsider for any reason, including a claim of ineffective assistance
of counsel unless the alien complies with the procedural requirements
for such a motion and demonstrates that counsel's failure to define, or
provide a basis for defining, a formulation of a particular social
group was both not a strategic choice and constituted egregious
conduct.
(d) Political opinion. For purposes of adjudicating an application
for asylum under section 208 of the Act or an application for
withholding of removal under section 241(b)(3) of the Act, a political
opinion is one expressed by or imputed to an applicant in which the
applicant possesses an ideal or conviction in support of the
furtherance of a discrete cause related to political control of a State
or a unit thereof. The Attorney General, in general, will not favorably
adjudicate claims of aliens who claim a fear of persecution on account
of a political opinion defined solely by generalized disapproval of,
disagreement with, or opposition to criminal, terrorist, gang,
guerilla, or other non-state organizations absent expressive behavior
in furtherance of a cause against such organizations related to efforts
by the State to control such organizations or behavior that is
antithetical to or otherwise opposes the ruling legal entity of the
State or a legal sub-unit of the State. A person who has been forced to
abort a pregnancy or to undergo involuntary sterilization, or who has
been persecuted for failure or refusal to undergo such a procedure or
for other resistance to a coercive population control program, shall be
deemed to have been persecuted on account of political opinion, and a
person who has a well-founded fear that he or she will be forced to
undergo such a procedure or subject to persecution for
[[Page 80395]]
such failure, refusal, or resistance shall be deemed to have a well-
founded fear of persecution on account of political opinion.
(e) Persecution. For purposes of adjudicating an application for
asylum under section 208 of the Act or an application for withholding
of removal under section 241(b)(3) of the Act, persecution requires an
intent to target a belief or characteristic, a severe level of harm,
and the infliction of a severe level of harm by the government of a
country or by persons or an organization that the government was unable
or unwilling to control. For purposes of evaluating the severity of the
level of harm, persecution is an extreme concept involving a severe
level of harm that includes actions so severe that they constitute an
exigent threat. Persecution does not encompass the generalized harm
that arises out of civil, criminal, or military strife in a country,
nor does it encompass all treatment that the United States regards as
unfair, offensive, unjust, or even unlawful or unconstitutional. It
does not include intermittent harassment, including brief detentions;
threats with no actual effort to carry out the threats, except that
particularized threats of a severe harm of immediate and menacing
nature made by an identified entity may constitute persecution; or,
non-severe economic harm or property damage, though this list is
nonexhaustive. The existence of government laws or policies that are
unenforced or infrequently enforced do not, by themselves, constitute
persecution, unless there is credible evidence that those laws or
policies have been or would be applied to an applicant personally.
(f) Nexus. For purposes of adjudicating an application for asylum
under section 208 of the Act or an application for withholding of
removal under section 241(b)(3) of the Act, the Attorney General, in
general, will not favorably adjudicate the claims of aliens who claim
persecution based on the following list of nonexhaustive circumstances:
(1) Interpersonal animus or retribution;
(2) Interpersonal animus in which the alleged persecutor has not
targeted, or manifested an animus against, other members of an alleged
particular social group in addition to the member who has raised the
claim at issue;
(3) Generalized disapproval of, disagreement with, or opposition to
criminal, terrorist, gang, guerilla, or other non-state organizations
absent expressive behavior in furtherance of a discrete cause against
such organizations related to control of a State or expressive behavior
that is antithetical to the State or a legal unit of the State;
(4) Resistance to recruitment or coercion by guerilla, criminal,
gang, terrorist or other non-state organizations;
(5) The targeting of the applicant for criminal activity for
financial gain based on wealth or affluence or perceptions of wealth or
affluence;
(6) Criminal activity;
(7) Perceived, past or present, gang affiliation; or,
(8) Gender.
(g) Evidence based on stereotypes. For purposes of adjudicating an
application for asylum under section 208 of the Act or an application
for withholding of removal under section 241(b)(3) of the Act, evidence
offered in support of such an application which promotes cultural
stereotypes about a country, its inhabitants, or an alleged persecutor,
including stereotypes based on race, religion, nationality, or gender,
shall not be admissible in adjudicating that application, provided that
nothing in this paragraph shall be construed as prohibiting the
submission of evidence that an alleged persecutor holds stereotypical
views of the applicant.
0
21. Amend Sec. 1208.2 by adding paragraph (c)(1)(ix) to read as
follows:
Sec. 1208.2 Jurisdiction.
* * * * *
(c) * * *
(1) * * *
(ix) An alien found to have a credible fear of persecution,
reasonable possibility of persecution, or reasonable possibility of
torture in accordance with Sec. 208.30, Sec. 1003.42, or Sec.
1208.30.
* * * * *
0
22. Amend Sec. 1208.5 by revising the first sentence of paragraph (a)
to read as follows:
Sec. 1208.5 Special duties toward aliens in custody of DHS.
(a) General. When an alien in the custody of DHS requests asylum or
withholding of removal, or expresses a fear of persecution or harm upon
return to his or her country of origin or to agents thereof, DHS shall
make available the appropriate application forms and shall provide the
applicant with the information required by section 208(d)(4) of the
Act, including in the case of an alien who is in custody with a
positive credible fear determination under 8 CFR 208.30 or a reasonable
fear determination pursuant to 8 CFR 208.31, and except in the case of
an alien who is in custody pending a credible fear determination under
8 CFR 208.30 or a reasonable fear determination pursuant to 8 CFR
208.31. * * *
* * * * *
0
23. Amend Sec. 1208.6 by revising paragraphs (a) and (b) and adding
paragraphs (d) and (e) to read as follows:
Sec. 1208.6 Disclosure to third parties.
(a) Information contained in or pertaining to any application for
refugee admission, asylum, withholding of removal under section
241(b)(3) of the Act, or protection under regulations issued pursuant
to the Convention Against Torture's implementing legislation, records
pertaining to any credible fear determination conducted pursuant to
Sec. 208.30, and records pertaining to any reasonable fear
determination conducted pursuant to Sec. 208.31, shall not be
disclosed without the written consent of the applicant, except as
permitted by this section or at the discretion of the Attorney General.
(b) The confidentiality of other records kept by DHS and the
Executive Office for Immigration Review that indicate that a specific
alien has applied for refugee admission, asylum, withholding of removal
under section 241(b)(3) of the Act, or protection under regulations
issued pursuant to the Convention Against Torture's implementing
legislation, or has received a credible fear or reasonable fear
interview, or received a credible fear or reasonable fear review shall
also be protected from disclosure, except as permitted in this section.
DHS will coordinate with the Department of State to ensure that the
confidentiality of those records is maintained if they are transmitted
to Department of State offices in other countries.
* * * * *
(d)(1) Any information contained in an application for refugee
admission, asylum, withholding of removal under section 241(b)(3) the
Act, or protection under regulations issued pursuant to the Convention
Against Torture's implementing legislation, any relevant and applicable
information supporting that application, any information regarding an
alien who has filed such an application, and any relevant and
applicable information regarding an alien who has been the subject of a
reasonable fear or credible fear determination may be disclosed:
(i) As part of an investigation or adjudication of the merits of
that application or of any other application under the immigration
laws;
(ii) As part of any State or Federal criminal investigation,
proceeding, or prosecution;
[[Page 80396]]
(iii) Pursuant to any State or Federal mandatory reporting
requirement;
(iv) To deter, prevent, or ameliorate the effects of child abuse;
(v) As part of any proceeding arising under the immigration laws,
including proceedings arising under the Act; and
(vi) As part of the Government's defense of any legal action
relating to the alien's immigration or custody status, including
petitions for review filed in accordance with 8 U.S.C. 1252.
(2) If information may be disclosed under paragraph (d)(1) of this
section, the disclosure provisions in paragraphs (a), (b), and (c) of
this section shall not apply.
(e) Nothing in this section shall be construed as prohibiting the
disclosure of information contained in an application for refugee
admission, asylum, withholding of removal under section 241(b)(3)(B) of
the Act, or protection under the regulations issued pursuant to the
Convention Against Torture's implementing legislation, any relevant and
applicable information supporting that application, information
regarding an alien who has filed such an application, or information
regarding an alien who has been the subject of a reasonable fear or
credible fear determination:
(1) Among employees of the Department of Justice, the Department of
Homeland Security, the Department of State, the Department of Health
and Human Services, the Department of Labor, or a U.S. national
security agency having a need to examine the information for an
official purpose; or
(2) Where a United States government employee or contractor has a
good faith and reasonable belief that disclosure is necessary to
prevent the commission of a crime, the furtherance of an ongoing crime,
or to ameliorate the effects of a crime.
0
24. Section 1208.13 is amended by revising paragraphs (b)(3)
introductory text and (b)(3)(ii) and adding paragraphs (b)(3)(iii) and
(iv), (d), and (e) to read as follows:
Sec. 1208.13 Establishing asylum eligibility.
* * * * *
(b) * * *
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1)(i) and (ii) and (b)(2) of this
section, adjudicators should consider the totality of the relevant
circumstances regarding an applicant's prospects for relocation,
including the size of the country of nationality or last habitual
residence, the geographic locus of the alleged persecution, the size,
numerosity, and reach of the alleged persecutor, and the applicant's
demonstrated ability to relocate to the United States in order to apply
for asylum.
* * * * *
(ii) In cases in which the persecutor is a government or is
government-sponsored, it shall be presumed that internal relocation
would not be reasonable, unless the Department of Homeland Security
establishes by a preponderance of the evidence that, under all the
circumstances, it would be reasonable for the applicant to relocate.
(iii) Regardless of whether an applicant has established
persecution in the past, in cases in which the persecutor is not the
government or a government-sponsored actor, or otherwise is a private
actor, there shall be a presumption that internal relocation would be
reasonable unless the applicant establishes, by a preponderance of the
evidence, that it would be unreasonable to relocate.
(iv) For purposes of determinations under paragraphs (b)(3)(ii) and
(iii) of this section, persecutors who are private actors--including
persecutors who are gang members, officials acting outside their
official capacity, family members who are not themselves government
officials, or neighbors who are not themselves government officials--
shall not be considered to be persecutors who are the government or
government-sponsored absent evidence that the government sponsored the
persecution.
* * * * *
(d) Discretion. Factors that fall short of grounds of mandatory
denial of an asylum application may constitute discretionary
considerations.
(1) The following are significant adverse discretionary factors
that a decision-maker shall consider, if applicable, in determining
whether an alien merits a grant of asylum in the exercise of
discretion:
(i) An alien's unlawful entry or unlawful attempted entry into the
United States unless such entry or attempted entry was made in
immediate flight from persecution in a contiguous country or unless
such entry or attempted entry was made by an alien under the age of 18
at the time the entry or attempted entry was made;
(ii) The failure of an alien to apply for protection from
persecution or torture in at least one country outside the alien's
country of citizenship, nationality, or last lawful habitual residence
through which the alien transited before entering the United States
unless:
(A) The alien received a final judgment denying the alien
protection in such country;
(B) The alien demonstrates that he or she satisfies the definition
of ``victim of a severe form of trafficking in persons'' provided in 8
CFR 214.11; or
(C) Such country or countries were, at the time of the transit, not
parties to the 1951 Convention relating to the Status of Refugees, the
1967 Protocol relating to the Status of Refugees, or the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment; and
(iii) An alien's use of fraudulent documents to enter the United
States, unless the alien arrived in the United States by air, sea, or
land directly from the applicant's home country without transiting
through any other country.
(2)(i) The Attorney General, except as provided in paragraph
(d)(2)(ii) of this section, will not favorably exercise discretion
under section 208 of the Act for an alien who:
(A) Immediately prior to his arrival in the United States or en
route to the United States from the alien's country of citizenship,
nationality, or last lawful habitual residence, spent more than 14 days
in any one country unless:
(1) The alien demonstrates that he or she applied for protection
from persecution or torture in such country and the alien received a
final judgment denying the alien protection in such country;
(2) The alien demonstrates that he or she satisfies the definition
of ``victim of a severe form of trafficking in persons'' provided in 8
CFR 214.11; or
(3) Such country was, at the time of the transit, not a party to
the 1951 Convention relating to the Status of Refugees the 1967
Protocol relating to the Status of Refugees, or the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
(B) Transits through more than one country between his country of
citizenship, nationality, or last habitual residence and the United
States unless:
(1) The alien demonstrates that he or she applied for protection
from persecution or torture in at least one such country and the alien
received a final judgment denying the alien protection in such country;
(2) The alien demonstrates that he or she satisfies the definition
of ``victim of a severe form of trafficking in persons'' provided in 8
CFR 214.11; or
(3) All such countries through which the alien transited en route
to the United States were, at the time of the transit, not parties to
the 1951 Convention relating to the Status of Refugees, the 1967
Protocol relating to the Status of Refugees, or the Convention against
Torture and Other
[[Page 80397]]
Cruel, Inhuman or Degrading Treatment or Punishment;
(C) Would otherwise be subject to Sec. 1208.13(c) but for the
reversal, vacatur, expungement, or modification of a conviction or
sentence unless the alien was found not guilty;
(D) Accrued more than one year of unlawful presence in the United
States, as defined in sections 212(a)(9)(B)(ii) and (iii) of the Act,
prior to filing an application for asylum;
(E) At the time the asylum application is filed with the
immigration court or is referred from DHS has:
(1) Failed to timely file (or timely file a request for an
extension of time to file) any required Federal, State, or local income
tax returns;
(2) Failed to satisfy any outstanding Federal, State, or local tax
obligations; or
(3) Has income that would result in tax liability under section 1
of the Internal Revenue Code of 1986 and that was not reported to the
Internal Revenue Service;
(F) Has had two or more prior asylum applications denied for any
reason;
(G) Has withdrawn a prior asylum application with prejudice or been
found to have abandoned a prior asylum application;
(H) Failed to attend an interview regarding his or her asylum
application with DHS, unless the alien shows by a preponderance of the
evidence that:
(1) Exceptional circumstances prevented the alien from attending
the interview; or
(2) The interview notice was not mailed to the last address
provided by the alien or the alien's representative and neither the
alien nor the alien's representative received notice of the interview;
or
(I) Was subject to a final order of removal, deportation, or
exclusion and did not file a motion to reopen to seek asylum based on
changed country conditions within one year of the changes in country
conditions.
(ii) Where one or more of the adverse discretionary factors set
forth in paragraph (d)(2)(i) of this section are present, the Attorney
General, in extraordinary circumstances, such as those involving
national security or foreign policy considerations, or cases in which
an alien, by clear and convincing evidence, demonstrates that the
denial of the application for asylum would result in exceptional and
extremely unusual hardship to the alien, may favorably exercise
discretion under section 208 of the Act, notwithstanding the
applicability of paragraph (d)(2)(i). Depending on the gravity of the
circumstances underlying the application of paragraph (d)(2)(i), a
showing of extraordinary circumstances might still be insufficient to
warrant a favorable exercise of discretion under section 208 of the
Act.
(e) Prima facie eligibility. (1) Notwithstanding any other
provision of this part, upon oral or written motion by the Department
of Homeland Security, an immigration judge shall, if warranted by the
record, pretermit and deny any application for asylum, withholding of
removal under section 241(b)(3) of the Act, or protection under the
regulations issued pursuant to the Convention Against Torture's
implementing legislation if the alien has not established a prima facie
claim for relief or protection under applicable law. An immigration
judge need not conduct a hearing prior to pretermitting and denying an
application under this paragraph (e)(1) but must consider any response
to the motion before making a decision.
(2) Notwithstanding any other provision of this part, upon his or
her own authority, an immigration judge shall, if warranted by the
record, pretermit and deny any application for asylum, withholding of
removal under section 241(b)(3) of the Act, or protection under the
regulations issued pursuant to the Convention Against Torture's
implementing legislation if the alien has not established a prima facie
claim for relief or protection under applicable law, provided that the
immigration judge shall give the parties at least 10 days' notice prior
to entering such an order. An immigration judge need not conduct a
hearing prior to pretermitting and denying an application under this
paragraph (e)(2) but must consider any filings by the parties within
the 10-day period before making a decision.
Sec. 1208.14 [Amended]
0
25. Amend Sec. 1208.14 by
0
a. Removing the words ``Sec. 1235.3(b) of this chapter'' in paragraphs
(c)(4)(ii) introductory text and (c)(4)(ii)(A) and adding in their
place the words ``Sec. 235.3(b) of chapter I''; and
0
b. Removing the citations ``Sec. 1208.30'' and ``Sec. 1208.30(b)'' in
paragraph (c)(4)(ii)(A) and adding in their place the words ``Sec.
208.30 of chapter I''.
0
26. Revise Sec. 1208.15 to read as follows:
Sec. 1208.15 Definition of ``firm resettlement.''
(a) An alien is considered to be firmly resettled if, after the
events giving rise to the alien's asylum claim:
(1) The alien resided in a country through which the alien
transited prior to arriving in or entering the United States and--
(i) Received or was eligible for any permanent legal immigration
status in that country;
(ii) Resided in such a country with any non-permanent but
indefinitely renewable legal immigration status (including asylee,
refugee, or similar status but excluding status such as of a tourist);
or
(iii) Resided in such a country and could have applied for and
obtained any non-permanent but indefinitely renewable legal immigration
status in that country;
(2) The alien physically resided voluntarily, and without
continuing to suffer persecution in any one country for one year or
more after departing his country of nationality or last habitual
residence and prior to arrival in or entry into the United States,
provided that time spent in Mexico by an alien who is not a native or
citizen of Mexico solely as a direct result of being returned to Mexico
pursuant to section 235(b)(2)(C) of the Act or of being subject to
metering would not be counted for purposes of this paragraph; or
(3)(i) The alien is a citizen of a country other than the one where
the alien alleges a fear of persecution and the alien was present in
that country after departing his country of nationality or last
habitual residence and prior to arrival in or entry into the United
States, or
(ii) the alien was a citizen of a country other than the one where
the alien alleges a fear of persecution, the alien was present in that
country after departing his country of nationality or last habitual
residence and prior to arrival in or entry into the United States, and
the alien renounced that citizenship after arriving in the United
States.
(b) The provisions of 8 CFR 1240.8(d) shall apply when the evidence
of record indicates that the firm resettlement bar may apply. In such
cases, the alien shall bear the burden of proving the bar does not
apply. Either DHS or the immigration judge may raise the issue of the
application of the firm resettlement bar based on the evidence of
record. The firm resettlement of an alien's parent(s) shall be imputed
to the alien if the resettlement occurred before the alien turned 18
and the alien resided with the alien's parents at the time of the firm
resettlement unless he or she could not have derived any permanent
legal immigration status or any non-permanent but indefinitely
renewable legal immigration status (including asylee, refugee, or
similar status but
[[Page 80398]]
excluding status such as of a tourist) from the alien's parent.
0
27. Amend Sec. 1208.16 by revising paragraphs (b)(3) introductory text
and (b)(3)(ii) and adding paragraphs (b)(3)(iii) and (iv) to read as
follows:
Sec. 1208.16 Withholding of removal under section 241(b)(3)(B) of the
Act and withholding of removal under the Convention Against Torture.
* * * * *
(b) * * *
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1) and (2) of this section,
adjudicators should consider the totality of the relevant circumstances
regarding an applicant's prospects for relocation, including the size
of the country of nationality or last habitual residence, the
geographic locus of the alleged persecution, the size, reach, or
numerosity of the alleged persecutor, and the applicant's demonstrated
ability to relocate to the United States in order to apply for
withholding of removal.
* * * * *
(ii) In cases in which the persecutor is a government or is
government-sponsored, it shall be presumed that internal relocation
would not be reasonable, unless the DHS establishes by a preponderance
of the evidence that, under all the circumstances, it would be
reasonable for the applicant to relocate.
(iii) Regardless of whether an applicant has established
persecution in the past, in cases in which the persecutor is not the
government or a government-sponsored actor, or otherwise is a private
actor, there shall be a presumption that internal relocation would be
reasonable unless the applicant establishes, by a preponderance of the
evidence, that it would be unreasonable to relocate.
(iv) For purposes of determinations under paragraphs (b)(3)(ii) and
(iii) of this section, persecutors who are private actors, including
persecutors who are gang members, public official who are not acting
under color of law, or family members who are not themselves government
officials or neighbors who are not themselves government officials,
shall not be considered to be persecutors who are the government or
government-sponsored absent evidence that the government sponsored the
persecution.
* * * * *
0
28. Amend Sec. 1208.18 by revising paragraphs (a)(1) and (7) to read
as follows:
Sec. 1208.18 Implementation of the Convention Against Torture.
(a) * * *
(1) Torture is defined as any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or her or a third person
information or a confession, punishing him or her for an act he or she
or a third person has committed or is suspected of having committed,
intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering
is inflicted by, or at the instigation of, or with the consent or
acquiescence of, a public official acting in an official capacity or
other person acting in an official capacity. Pain or suffering
inflicted by a public official who is not acting under color of law
shall not constitute pain or suffering inflicted by, or at the
instigation of, or with the consent or acquiescence of, a public
official acting in an official capacity or other person acting in an
official capacity, although a different public official acting in an
official capacity or other person acting in an official capacity could
instigate, consent to, or acquiesce in the pain or suffering inflicted
by the public official who is not acting under color of law.
* * * * *
(7) Acquiescence of a public official requires that the public
official, prior to the activity constituting torture, have awareness of
such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity. Such awareness requires a finding
of either actual knowledge or willful blindness. Willful blindness
means that the public official acting in an official capacity or other
person acting in an official capacity was aware of a high probability
of activity constituting torture and deliberately avoided learning the
truth; it is not enough that such public official acting in an official
capacity or other person acting in an official capacity was mistaken,
recklessly disregarded the truth, or negligently failed to inquire. In
order for a public official to breach his or her legal responsibility
to intervene to prevent activity constituting torture, the official
must have been charged with preventing the activity as part of his or
her duties and have failed to intervene. No person will be deemed to
have breached a legal responsibility to intervene if such person is
unable to intervene, or if the person intervenes but is unable to
prevent the activity that constitutes torture.
* * * * *
0
29. Revise Sec. 1208.20 to read as follows:
Sec. 1208.20 Determining if an asylum application is frivolous.
(a) For applications filed on or after April 1, 1997, and before
January 11, 2021, an applicant is subject to the provisions of section
208(d)(6) of the Act only if the alien received the notice required by
section 208(d)(4)(A) of the Act and a final order by an immigration
judge or the Board of Immigration Appeals specifically finds that the
alien knowingly filed a frivolous asylum application. An application is
frivolous if:
(1) Any of the material elements in the asylum application is
deliberately fabricated, and the immigration judge or the Board is
satisfied that the applicant, during the course of the proceedings, has
had sufficient opportunity to account for any discrepancies or
implausible aspects of the claim.
(2) Paragraphs (b) through (f) shall only apply to applications
filed on or after January 11, 2021.
(b) For applications filed on or after January 11, 2021, an asylum
officer may determine that the applicant knowingly filed a frivolous
asylum application and may refer the applicant to an immigration judge
on that basis, so long as the applicant has received the notice
required by section 208(d)(4)(A) of the Act. For applications referred
to an immigration judge, an asylum officer's determination that an
application is frivolous will not render an applicant permanently
ineligible for immigration benefits unless an immigration judge or the
Board makes a finding of frivolousness as described in paragraph (c) of
this section.
(c) For applications filed on or after January 11, 2021, an asylum
application is frivolous if it:
(1) Contains a fabricated material element;
(2) Is premised upon false or fabricated evidence unless the
application would have been granted without the false or fabricated
evidence;
(3) Is filed without regard to the merits of the claim; or
(4) Is clearly foreclosed by applicable law.
(d) If the alien has been provided the warning required by section
208(d)(4)(A) of the Act, he or she need not be given any additional or
further opportunity to account for any issues with his or her claim
prior to the entry of a frivolousness finding.
(e) An asylum application may be found frivolous even if it was
untimely filed.
(f) A withdrawn asylum application may be found frivolous unless:
[[Page 80399]]
(1) The alien wholly disclaims the application and withdraws it
with prejudice;
(2) The alien is eligible for and agrees to accept voluntary
departure for a period of no more than 30 days pursuant to section
240B(a) of the Act;
(3) The alien withdraws any and all other applications for relief
or protection with prejudice; and
(4) The alien waives his right to appeal and any rights to file,
for any reason, a motion to reopen or reconsider.
(g) For purposes of this section, a finding that an alien filed a
knowingly frivolous asylum application shall not preclude the alien
from seeking withholding of removal under section 241(b)(3) of the Act
or protection under the regulations issued pursuant to the Convention
Against Torture's implementing legislation.
0
30. Add Sec. 1208.25 to read as follows:
Sec. 1208.25 Severability.
The provisions of part 1208 are separate and severable from one
another. In the event that any provision in part 1208 is stayed,
enjoined, not implemented, or otherwise held invalid, the remaining
provisions shall nevertheless be implemented as an independent rule and
continue in effect.
0
31. Amend Sec. 1208.30 by revising the section heading and paragraphs
(a), (b) introductory text, (b)(2), (e), and (g) to read as follows:
Sec. 1208.30 Credible fear of persecution, reasonable possibility of
persecution, and reasonable possibility of torture determinations
involving stowaways and applicants for admission who are found
inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act
or whose entry is limited or suspended under section 212(f) or
215(a)(1) of the Act, or who failed to apply for protection from
persecution in a third country where potential relief is available
while en route to the United States.
(a) Jurisdiction. The provisions of this subpart B apply to aliens
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to
section 235(b)(1)(B) and 8 CFR 208.30, DHS has exclusive jurisdiction
to make fear determinations, and the immigration judges have exclusive
jurisdiction to review such determinations. Except as otherwise
provided in this subpart B, paragraphs (b) through (g) of this section
and 8 CFR 208.30 are the exclusive procedures applicable to stowaways
and applicants for admission who are found inadmissible pursuant to
section 212(a)(6)(C) or 212(a)(7) of the Act and who receive fear
interviews, determinations, and reviews under section 235(b)(1)(B) of
the Act and 8 CFR 208.30. Prior to January 1, 2030, an alien physically
present in or arriving in the Commonwealth of the Northern Mariana
Islands is ineligible to apply for asylum and may only establish
eligibility for withholding of removal pursuant to section 241(b)(3) of
the Act or withholding or deferral of removal under the regulations
issued pursuant to the Convention Against Torture's implementing
legislation.
(b) Treatment of dependents. A spouse or child of an alien may be
included in that alien's fear evaluation and determination, if such
spouse or child:
* * * * *
(2) Desires to be included in the principal alien's determination.
However, any alien may have his or her evaluation and determination
made separately, if he or she expresses such a desire.
* * * * *
(e) Determination. For the standards and procedures for asylum
officers in conducting credible fear of persecution, reasonable
possibility of persecution, and reasonable possibility of torture
interviews and in making positive and negative fear determinations, see
8 CFR 208.30. The immigration judges will review such determinations as
provided in paragraph (g) of this section and 8 CFR 1003.42.
* * * * *
(g) Procedures for negative fear determinations--(1) Review by
immigration judge of a mandatory bar finding. (i) If the alien is
determined to be an alien described in 8 CFR 208.13(c)(3) or 8 CFR
1208.13(c)(3) and is determined to lack a credible fear of persecution
or a reasonable possibility of persecution or torture under 8 CFR
208.30(e)(5)(ii), the immigration judge shall first review de novo the
determination that the alien is described in 8 CFR 208.13(c)(3) or 8
CFR 1208.13(c)(3). If the immigration judge finds that the alien is not
described in 8 CFR 208.13(c)(3) or 8 CFR 1208.13(c)(3), then the
immigration judge shall vacate the determination of the asylum officer,
and DHS may commence asylum-and-withholding-only proceedings under 8
CFR 1208.2(c)(1). If the immigration judge concurs with the
determination that the alien is an alien described in 8 CFR
208.13(c)(3) or 8 CFR 1208.13(c)(3), the immigration judge will then
review the asylum officer's negative determinations regarding credible
fear and regarding reasonable possibility made under 8 CFR
208.30(e)(5)(iv) consistent with paragraph (g)(2) of this section,
except that the immigration judge will review the fear of persecution
or torture findings under the reasonable possibility standard instead
of the credible fear (``significant possibility'') standard described
in paragraph (g)(2).
(ii) If the alien is determined to be an alien described as
ineligible for asylum in 8 CFR 208.13(c)(4) or 8 CFR 1208.13(c)(4) and
is determined to lack a reasonable possibility of persecution or
torture under 8 CFR 208.30(e)(5)(v), the immigration judge shall first
review de novo the determination that the alien is described as
ineligible for asylum in 8 CFR 208.13(c)(4) or 8 CFR 1208.13(c)(4). If
the immigration judge finds that the alien is not described as
ineligible for asylum in 8 CFR 208.13(c)(4) or 8 CFR 1208.13(c)(4),
then the immigration judge shall vacate the determination of the asylum
officer, and DHS may commence asylum-and-withholding-only proceedings
under 8 CFR 1208.2(c)(1). If the immigration judge concurs with the
determination that the alien is an alien described as ineligible for
asylum in 8 CFR 208.13(c)(4) or 8 CFR 1208.13(c)(4), the immigration
judge will then review the asylum officer's negative decision regarding
reasonable possibility made under 8 CFR 208.30(e)(5)(v) consistent with
paragraph (g)(2) of this section, except that the immigration judge
will review the fear of persecution or torture findings under the
reasonable possibility standard instead of the credible fear of
persecution standard described in paragraph (g)(2).
(2) Review by immigration judge of a negative fear finding. (i) The
asylum officer's negative decision regarding a credible fear of
persecution, reasonable possibility of persecution, and reasonable
possibility of torture shall be subject to review by an immigration
judge upon the applicant's request, in accordance with section
235(b)(1)(B)(iii)(III) of the Act. If the alien refuses to make an
indication, DHS will consider such a response as a decision to decline
review.
(ii) The record of the negative fear determination, including
copies of the Notice of Referral to Immigration Judge, the asylum
officer's notes, the summary of the material facts, and other materials
upon which the determination was based shall be provided to the
immigration judge with the negative fear determination.
(iii) A fear hearing will be closed to the public unless the alien
states for the record or submits a written statement that the alien is
waiving that requirement; in that event the hearing shall be open to
the public, subject to
[[Page 80400]]
the immigration judge's discretion as provided in 8 CFR 1003.27.
(iv) Upon review of the asylum officer's negative fear
determinations:
(A) If the immigration judge concurs with the determination of the
asylum officer that the alien has not established a credible fear of
persecution, reasonable possibility of persecution, or reasonable
possibility of torture, the case shall be returned to DHS for removal
of the alien. The immigration judge's decision is final and may not be
appealed.
(B) If the immigration judge finds that the alien, other than an
alien stowaway, establishes a credible fear of persecution, reasonable
possibility of persecution, or reasonable possibility of torture, the
immigration judge shall vacate the Notice and Order of Expedited
Removal, and DHS may commence asylum-and-withholding-only proceedings
under 8 CFR 1208.2(c)(1), during which time the alien may file an
application for asylum and for withholding of removal in accordance
with 8 CFR 1208.4(b)(3)(i). Such application shall be considered de
novo in all respects by an immigration judge regardless of any
determination made under this paragraph.
(C) If the immigration judge finds that an alien stowaway
establishes a credible fear of persecution, reasonable possibility of
torture, or reasonable possibility of torture, the alien shall be
allowed to file an application for asylum and for withholding of
removal before the immigration judge in accordance with 8 CFR
1208.4(b)(3)(iii). The immigration judge shall decide the application
as provided in that section. Such application shall be considered de
novo in all respects by an immigration judge regardless of any
determination made under this paragraph. Such decision on that
application may be appealed by either the stowaway or DHS to the Board
of Immigration Appeals. If a denial of the application for asylum and
for withholding of removal becomes final, and deferral of removal has
not otherwise been granted pursuant to 8 CFR 1208.17(a), the alien
shall be removed from the United States in accordance with section
235(a)(2) of the Act. If an approval of the application for asylum,
withholding of removal, or, as pertinent, deferral of removal becomes
final, DHS shall terminate removal proceedings under section 235(a)(2)
of the Act.
0
32. Amend Sec. 1208.31 by revising paragraphs (f) and (g) to read as
follows:
Sec. 1208.31 Reasonable fear of persecution or torture determinations
involving aliens ordered removed under section 238(b) of the Act and
aliens whose removal is reinstated under section 241(a)(5) of the Act.
* * * * *
(f) Removal of aliens with no reasonable fear of persecution or
torture. If the asylum officer determines that the alien has not
established a reasonable fear of persecution or torture, the asylum
officer shall inform the alien in writing of the decision and shall
inquire whether the alien wishes to have an immigration judge review
the negative decision, using the Record of Negative Reasonable Fear
Finding and Request for Review by Immigration Judge, on which the alien
must indicate whether he or she desires such review. If the alien
refuses to make an indication, DHS shall consider such a response as a
decision to decline review.
(g) Review by Immigration Judge. The asylum officer's negative
decision regarding reasonable fear shall be subject to review by an
immigration judge upon the alien's request. If the alien requests such
review, the asylum officer shall serve him or her with a Notice of
Referral to the Immigration Judge. The record of determination,
including copies of the Notice of Referral to the Immigration Judge,
the asylum officer's notes, the summary of the material facts, and
other materials upon which the determination was based shall be
provided to the immigration judge with the negative determination. In
the absence of exceptional circumstances, such review shall be
conducted by the immigration judge within 10 days of the filing of the
Notice of Referral to the Immigration Judge with the immigration court.
Upon review of the asylum officer's negative reasonable fear
determination:
(1) If the immigration judge concurs with the asylum officer's
determination that the alien does not have a reasonable fear of
persecution or torture, the case shall be returned to DHS for removal
of the alien. No appeal shall lie from the immigration judge's
decision.
(2) If the immigration judge finds that the alien has a reasonable
fear of persecution or torture, the alien may submit an Application for
Asylum and for Withholding of Removal. Such application shall be
considered de novo in all respects by an immigration judge regardless
of any determination made under this paragraph.
(i) The immigration judge shall consider only the alien's
application for withholding of removal under 8 CFR 1208.16 and shall
determine whether the alien's removal to the country of removal must be
withheld or deferred.
(ii) Appeal of the immigration judge's decision whether removal
must be withheld or deferred lies with the Board of Immigration
Appeals. If the alien or DHS appeals the immigration judge's decision,
the Board shall review only the immigration judge's decision regarding
the alien's eligibility for withholding or deferral of removal under 8
CFR 1208.16.
PART 1212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
33. The authority citation for part 1212 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227, 1255; 8 U.S.C. 1185 note
(section 7209 of Public Law 108-458); Title VII of Public Law 110-
229.
0
34. Add Sec. 1212.13 to read as follows:
Sec. 1212.13 Severability.
The provisions of part 1212 are separate and severable from one
another. In the event that any provision in part 1212 is stayed,
enjoined, not implemented, or otherwise held invalid, the remaining
provisions shall nevertheless be implemented as an independent rule and
continue in effect.
Sec. 1212.14 [Amended]
0
35. Amend Sec. 1212.14 in paragraph (a)(1)(vii) by removing the words
``Sec. 1235.3 of this chapter'' and adding in their place the words
``Sec. 235.3 of chapter I''.
PART 1235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
0
36. The authority citation for part 1235 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 1225,
1226, 1228, 1365a note, 1379, 1731-32; Title VII of Public Law 110-
229; 8 U.S.C. 1185 note (section 7209 of Public Law 108-458).
Sec. Sec. 1235.1, 1235.2, 1235.3, and 1235.5 [Removed and Reserved]
0
37. Remove and reserve Sec. Sec. 1235.1, 1235.2, 1235.3, and 1235.5.
0
38. Amend Sec. 1235.6 by:
0
a. Removing paragraphs (a)(1)(ii) and (iii);
0
b. Redesignating paragraph (a)(1)(iv) as paragraph (a)(1)(ii) and
revising it;
0
c. Revising paragraphs (a)(2)(ii) and (iii); and
0
d. Adding paragraph (c).
[[Page 80401]]
The revisions and addition read as follows:
Sec. 1235.6 Referral to immigration judge.
(a) * * *
(1) * * *
(ii) If an immigration officer verifies that an alien subject to
expedited removal under section 235(b)(1) of the Act has been admitted
as a lawful permanent resident or refugee, or granted asylum, or, upon
review pursuant to Sec. 235.3(b)(5)(iv) of chapter I, an immigration
judge determines that the alien was once so admitted or granted asylum,
provided that such status has not been terminated by final
administrative action, and DHS initiates removal proceedings against
the alien under section 240 of the Act.
* * * * *
(2) * * *
(i) If an asylum officer determines that an alien does not have a
credible fear of persecution, reasonable possibility of persecution, or
reasonable possibility of torture, and the alien requests a review of
that determination by an immigration judge; or
* * * * *
(iii) If an immigration officer refers an applicant in accordance
with the provisions of Sec. 208.30 or Sec. 208.31.
* * * * *
(c) The provisions of part 1235 are separate and severable from one
another. In the event that any provision in part 1235 is stayed,
enjoined, not implemented, or otherwise held invalid, the remaining
provisions shall nevertheless be implemented as an independent rule and
continue in effect.
PART 1244--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED
STATES
0
39. The authority citation for part 1244 continues to read as follows:
Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.
0
40. Amend Sec. 1244.4 by revising paragraph (b) to read as follows:
Sec. 1244.4 Ineligible aliens.
* * * * *
(b) Is an alien described in section 208(b)(2)(A) of the Act.
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S.
Department of Homeland Security.
Dated: December 2, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-26875 Filed 12-10-20; 8:45 am]
BILLING CODE 4410-30-P; 9111-97-P
