Procedures for Asylum and Withholding of Removal, 81698-81751 [2020-27210]
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Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations
DEPARTMENT OF JUSTICE
Executive Office for Immigration
Review
8 CFR Parts 1003, 1103, 1208 and 1240
[Docket No. EOIR 19–0010; Dir. Order No.
04–2021]
RIN 1125–AA93
Procedures for Asylum and
Withholding of Removal
Executive Office for
Immigration Review, Department of
Justice.
ACTION: Final rule.
AGENCY:
On September 23, 2020, the
Department of Justice (‘‘DOJ’’ or ‘‘the
Department’’) published a notice of
proposed rulemaking (‘‘NPRM’’ or
‘‘proposed rule’’) that proposed to
amend the regulations governing the
adjudication of applications for asylum
and withholding of removal before the
Executive Office for Immigration
Review (‘‘EOIR’’), including outlining
requirements for filing a complete
application for relief and the
consequences of filing an incomplete
application, and establishing a 15-day
filing deadline for aliens applying for
asylum in asylum-and-withholdingonly-proceedings, and clarifying
evidentiary standards in adjudicating
such applications. Further, the
Department proposed changes related to
the 180-day asylum adjudication clock.
This final rule responds to comments
received in response to the NPRM and
adopts the NPRM with few changes.
DATES: This rule is effective on January
15, 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:
SUMMARY:
I. Background
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A. Proposed Rule
On September 23, 2020, the
Department published an NPRM that
would amend EOIR’s regulations
regarding the procedures for the
submission and consideration of
applications for asylum, statutory
withholding of removal, and protection
under the regulations issued pursuant to
the legislation implementing the
Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment (‘‘CAT’’). Procedures for
Asylum and Withholding of Removal,
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85 FR 59692 (Sept. 23, 2020). Through
the NPRM, the Department proposed
changes to 8 CFR parts 1003, 1208, and
1240 regarding completeness
requirements for such an application,
and the consequences of filing an
incomplete application. Further, it
proposed to establish a 15-day filing
deadline for aliens applying for asylum 1
in asylum-and-withholding only
proceedings and proposed changes to
improve adherence to the statutory
requirement that asylum applications be
adjudicated within 180 days absent
exceptional circumstances. The rule
also proposed to clarify evidentiary
standards in adjudicating such
applications.
B. Authority
The Attorney General is issuing this
final rule pursuant to the authority at
sections 103(g) and 208(d)(5)(B) of the
Immigration and Nationality Act (‘‘INA’’
or ‘‘the Act’’), 8 U.S.C. 1103(g) and
1158(d)(5)(B).
C. Final Rule
Following consideration of the public
comments received, discussed below in
section II, the Department has
determined to publish the provisions of
the proposed rule as final except for the
changes noted in I.C.1 below and certain
technical amendments. The rationale for
those provisions that are unchanged
from the proposed rule remains valid.
85 FR at 59693–97.
1. Filing Deadline for Aliens in Asylumand-Withholding-Only Proceedings
The NPRM added a new paragraph (d)
to 8 CFR 1208.4, but the final rule splits
that paragraph into three parts,
including adding a clarification
regarding fee receipts in response to
commenters’ concerns. Paragraph (d)(1)
of the final rule mirrors paragraph (d) in
the proposed rule; it establishes an
initial 15-day filing deadline for the
submission of Form I–589, Application
for Asylum and for Withholding of
Removal, including applications for
protection under the CAT, by aliens in
asylum-and-withholding-only
proceedings under 8 CFR 1208.2(c)(1)
and 1208.4(b)(3)(iii). The 15-day period
is calculated from the date of the alien’s
1 An application for asylum is also an application
for statutory withholding of removal, 8 CFR
1208.3(b), and this rule clarifies that it is also an
application for protection under the CAT.
Moreover, as discussed, infra, the final rule
contains provisions related to aliens seeking
withholding of removal or CAT protection—but not
asylum—in proceedings under 8 CFR 1208.2(c)(2).
Thus, unless the context indicates otherwise,
references to an asylum application in this final
rule encompass references to statutory withholding
of removal and protection under the CAT.
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first hearing before an immigration
judge and is subject to possible
extension for good cause by the
immigration judge. For aliens who do
not file the application by the deadline
set by the immigration judge, the
immigration judge will deem the alien’s
opportunity to submit the application
waived in the proceedings pending
before EOIR, and the case will be
returned to the Department of
Homeland Security (‘‘DHS’’).
If the Form I–589 requires payment of
a fee, this final rule at paragraph (d)(2)
maintains the general requirement for
applications and motions before EOIR:
The alien must submit a fee receipt
together with the application by the
deadline set by the immigration judge.
In response to commenters’ concerns,
however, this final rule adds a provision
at paragraph (d)(3) to allow flexibility
for aliens to meet the filing deadline
when the aliens cannot meet all
requirements due to no fault of their
own. Accordingly, if the alien has not
yet received a copy of the fee receipt
from DHS in time to meet the Form I–
589 filing deadline, the alien may
instead provide the immigration court
with a copy of the payment submitted
to DHS when the alien submits his or
her application to EOIR. Aliens who
provide this alternative proof of
payment must still provide a copy of the
fee receipt. In such an instance, the fee
receipt will be due by the deadline the
immigration judge sets. If the
immigration judge does not set a
separate deadline for the submission of
the fee receipt, the alien must submit
the fee receipt within 45 days 2 of the
date of filing the associated
application.3
In response to a recommendation by
a commenter, the Department is also
amending 8 CFR 1208.4(d)(1) in the
final rule to apply the 15-day deadline
to applications for statutory withholding
of removal and protection under the
CAT for aliens in proceedings under 8
2 The INA states both that a fee may be charged
for an asylum application, INA 208(d)(3), 8 U.S.C.
1158(d)(3), and that the initial hearing on an asylum
application occur within 45 days of filing the
application absent exceptional circumstances, INA
208(d)(5)(A)(ii), 8 U.S.C. 1158(d)(5)(A)(ii). Thus—
for an asylum application that requires a fee—
because the application cannot be filed until the fee
is paid and because a hearing cannot occur on the
application until it is filed, the Department finds
that the statutory scheme in INA 208, 8 U.S.C. 1158,
contemplates that it is reasonable to expect an alien
to have received a fee receipt within 45 days of
filing the asylum application.
3 In addition, this final rule adds corresponding
cross-references to 8 CFR 1003.8, 1003.24, 1003.31,
and 1103.7 to account for this exception to the
general requirement that any form or application
that requires a fee must be submitted together with
the fee receipt.
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CFR 1208.2(c)(2). The Department sees
no reason to distinguish between aliens
subject to proceedings under 8 CFR
1208.2(c)(1) and those subject to
proceedings under 8 CFR 1208.2(c)(2),
as both groups are generally detained.
Moreover, the reasons underpinning the
application deadline for 8 CFR
1208.2(c)(1) apply with equal force to
proceedings under 8 CFR 1208.2(c)(2).
Accordingly, in response to the
recommendation of at least one
commenter, the final rule adopts the
commenter’s suggestion and edits the
language in 8 CFR 1208.4(d)(1) to make
the 15-day deadline, with the possibility
of an extension for good cause,
applicable to aliens in proceedings
under 8 CFR 1208.2(c)(2) seeking
statutory withholding of removal or
protection under the CAT regulations.
Finally, the final rule makes a syntax
change to the language in 8 CFR
1208.4(d)(1) to clarify that if an alien
does not file an appropriate application
by the deadline set by the immigration
judge, the immigration judge shall deem
the opportunity to file such an
application waived, and the case shall
be returned to DHS. The proposed rule
included the phrase ‘‘for execution of an
order of removal’’ after ‘‘DHS,’’ but that
phrasing risks confusion because not
every alien in proceedings under 8 CFR
1208.2(c)(1) is subject to an order of
removal. See, e.g., 8 CFR
1208.2(c)(1)(iii) (VWP applicant for
admission who is denied admission).
Accordingly, the final rule deletes that
phrase to make clear that in the
circumstances of 8 CFR 1208.4(d)(1), the
case will simply be returned to DHS,
and DHS will take whatever subsequent
action it deems appropriate.
2. Requirements for the Filing of an
Application
The rule amends 8 CFR 1208.3(c)(3)
regarding the requirements for filing a
Form I–589, Application for Asylum
and for Withholding of Removal, and
the procedures for correcting errors in
filed applications. These amendments
apply to the submission of any Form I–
589 before EOIR, including aliens in
removal proceedings under section 240
of the Act, 8 U.S.C. 1229a, aliens in
asylum-and-withholding-only
proceedings under 8 CFR 1208.2(c)(1)
and 1208.4(b)(3)(iii), and aliens in
withholding-only proceedings under 8
CFR 1208.2(c)(2).
First, the rule specifies that the
application must be filed in accordance
with the form instructions and the
general requirements for filings before
the immigration court at 8 CFR 1003.24,
1003.31(b), and 1103.7(a)(3), including
the payment of any required fee. The
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rule provides that an application is
incomplete if, in addition to existing
grounds, it is not completed and
submitted in accordance with the form
instructions or is unaccompanied by
any required fee receipt (or alternate
proof, as necessary).
Second, the rule further revises 8 CFR
1208.3(c)(3) by removing the current
provision that deems an alien’s
incomplete asylum application to be
complete if the immigration court fails
to return the application within 30 days
of receipt. Instead, the rule provides that
immigration courts will reject all
incomplete applications. Moreover, the
rule adds a maximum of 30 days from
the date of rejection for the alien to
correct any deficiencies in his or her
application. Under the rule, an asylum
applicant’s failure to re-file a corrected
application within the 30-day time
period, absent exceptional
circumstances, shall result in a finding
that the alien has abandoned that
application and waived the opportunity
to file such an application in the
proceedings pending before EOIR.
Lastly, the rule updates language in 8
CFR 1208.3(c)(3) regarding incomplete
asylum applications and potential work
authorization, changing a reference to
the ‘‘150-day period after which the
applicant may file an application for
employment authorization’’ to remove
the specific time period to ensure that
EOIR regulations do not contradict DHS
regulations regarding employment
authorization eligibility.
3. Clarification Regarding Immigration
Judge Evidentiary Considerations
The rule clarifies what type of
external materials an immigration judge
may rely on under 8 CFR 1208.12 when
deciding an asylum application, which
includes an application for withholding
of removal and protection under the
CAT, or deciding whether an alien has
a credible fear of persecution or torture
pursuant to 8 CFR 1208.30, or a
reasonable fear of persecution or torture
pursuant to 8 CFR 1208.31. The rule
allows immigration judges to rely on
resources provided by the Department
of State, other DOJ offices, DHS, or other
U.S. government agencies. The rule also
provides that immigration judges may
rely on foreign government and nongovernmental sources when the judge
determines those sources are credible
and the material is probative.
Additionally, the rule expands 8 CFR
1208.12 to allow an immigration judge,
on his or her own authority, to submit
probative evidence from credible
sources into the record. The
immigration judge may consider such
evidence in ruling on an asylum
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application, including an application for
withholding of removal and protection
under the CAT, so long as the judge has
provided a copy to both parties and both
parties have had an opportunity to
comment on or object to the evidence
prior to the issuance of the immigration
judge’s decision.
4. Asylum Adjudication
The rule removes and reserves 8 CFR
1208.7, relating to obtaining work
authorization from DHS, and 1208.9,
relating to procedures for interviews
before DHS asylum officers. The rule
also amends 8 CFR 1003.10(b) to make
clear that, in the absence of exceptional
circumstances, an immigration judge
shall complete adjudication of an
asylum application within 180 days
after the application’s filing date.
The rule amends 8 CFR 1003.10(b) to
provide a definition of ‘‘exceptional
circumstances’’ for purposes of
1003.10(b), 1003.29, and 1240.6, and to
clarify that the section’s use of the
phrase ‘‘exceptional circumstances’’
refers to those scenarios that are beyond
the control of the parties or the
immigration court.
Furthermore, the rule amends 8 CFR
1003.29 to specify that nothing in that
section authorizes a continuance that
causes the adjudication of an asylum
application to exceed 180 days.
Similarly, the rule revises 8 CFR
1003.31 to provide that the section shall
not authorize setting or extending time
limits for the filing of documents after
an asylum application has been filed
that would cause the adjudication of an
asylum application to exceed 180 days.
Consistent with INA 208(d)(5)(A)(iii), 8
U.S.C. 1158(d)(5)(A)(iii), both of these
changes provide for an exception if
exceptional circumstances as defined in
8 CFR 1003.10(b) apply. The rule also
revises 8 CFR 1240.6 to include that the
section does not authorize an
adjournment that causes the
adjudication of an asylum application to
exceed 180 days in the absence of
exceptional circumstances as defined in
8 CFR 1003.10(b).
5. Technical Amendments
The file rule adopts the proposal that
any required fee be submitted by the
time of filing, but further provides for
cross-references to both 8 CFR 103.7 and
8 CFR part 106 to prevent confusion and
ensure consistency regardless of how
the litigation over the DHS rule 4 is
resolved.
4 The final rule related to fees charged by USCIS
for filing of an I–589 was preliminarily enjoined by
two federal district courts prior to its effective date.
Immigrant Legal Resource Ctr. v. Wolf, No. 20–cv–
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In addition, this rule provides for
technical amendments not addressed in
the proposed rule. It corrects outdated
references to ‘‘Service’’ to properly
reference ‘‘DHS’’ in 8 CFR 1001.31(b).
Similarly, it clarifies references to
‘‘withholding of removal’’ by
referencing section 241(b)(3) of the INA
in order to distinguish that form of
protection from protection under the
CAT. Additionally, for precision, it
replaces references to the CAT with
reference to 8 CFR 1208.16 through
1208.18. No substantive changes are
intended by these amendments.
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D. Effective Date
As noted above, this rule is effective
on January 15, 2021.
Further, the Department clarifies
herein the rule’s mostly prospective
temporal application. The provisions of
the rule regarding the 15-day filing
deadline for the submission of asylum
applications apply only to asylum-andwithholding-only proceedings initiated
after the effective date of the final rule.
The provisions of the rule related to the
I–589 completeness and filing
requirements apply only to asylum
applications submitted after the rule’s
effective date. Except as noted below,
the provisions of the rule related to
immigration judge evidentiary
considerations apply to proceedings of
any type initiated after the rule’s
effective date.
The rule incorporates the statutory
requirement that ‘‘in the absence of
exceptional circumstances, final
administrative adjudication of the
asylum application, not including
administrative appeal, shall be
completed within 180 days after the
date an application is filed.’’ INA
208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii). That provision was
enacted nearly 25 years ago and is
currently in force. Moreover, EOIR
reiterated its policy to comply with that
statutory provision, including the legal
conclusion that ‘‘good cause’’ is not
synonymous with ‘‘exceptional
circumstances,’’ over two years ago.
EOIR Policy Memorandum 19–05,
05883–JSW, 2020 WL 5798269 (N.D. Cal. Sept. 29,
2020); Nw. Immigrant Rights Project v. U.S.
Citizenship & Immigration Servs., No. 19–3283
(RDM), 2020 WL 5995206 (Oct. 8, 2020). Although
this final rule updates cross-references in EOIR’s
regulations to DHS’s regulations to account for the
USCIS rule’s amendments of DHS’s regulations, the
USCIS fees remain governed by DHS’s previous
regulations while the aforementioned injunctions
remain in effect. Because the ultimate resolution of
the litigation challenging the DHS fee rule is
unknown, this final rule amends EOIR’s regulations
to include cross-references to both the previous
DHS regulations and the new regulations to ensure
that the cross-references do not become inaccurate
regardless of how the litigation is resolved.
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Guidance Regarding the Adjudication of
Asylum Applications Consistent with
INA § 208(d)(5)(A)(iii) (Nov. 19, 2018),
https://www.justice.gov/eoir/page/file/
1112581/download. Thus, the
provisions of the rule relating to INA
208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii) and continuances
based on exceptional circumstances,
which are already in effect by both
statute and policy, apply to pending
cases. These provisions are simply
adoptions of existing law or, at most,
clarifications of existing law.
Accordingly, they do not have an
impermissible retroactive effect if
applied to pending cases. 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)).
Similarly, the rule incorporates
principles established by binding
precedent allowing—if not also
requiring, in some instances—an
immigration judge to submit evidence in
an asylum adjudication. See 85 FR at
59695 (collecting authorities, including
Matter of S–M–J–, 21 I&N Dec. 722, 729
(BIA 1997) (en banc)). Thus, the
provisions of the rule relating to an
immigration judge’s submission of
evidence, which are already in effect
through binding precedent, apply to
pending cases. These provisions are
simply adoptions of existing law or, at
most, clarifications of existing law and,
thus, do not have an impermissible
retroactive effect if applied to pending
cases. See Sterling Holding Co., LLC,
544 F.3d at 506.
Additionally, EOIR does not
adjudicate—and has never
adjudicated—applications for
employment authorization documents
(EADs) for aliens with pending asylum
applications; rather, DHS does. 8 CFR
274a.13(a) (2020). Further, the
settlement agreement applicable to the
processing of asylum applications and
EAD applications in A.B.T. v. U.S.
Citizenship and Immigration Servs., No.
CV11–2108–RAJ (W.D. Wash.) (‘‘ABT
Settlement Agreement’’) expired in
2019, and EOIR has already announced
that it will no longer provide aliens or
their representatives with a copy of a
180-Day Asylum EAD Clock Notice. See
EOIR Policy Memorandum 21–02,
Withdrawal of Operating Policies and
Procedures Memoranda 13–03 and 16–
01 (Nov. 6, 2020). Accordingly, the
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provisions of the rule deleting a
regulation regarding EAD applications
that is inapplicable to EOIR, 8 CFR
1208.7, will be effective on the effective
date. Finally, and for similar reasons,
the provisions of the rule deleting a
regulation regarding asylum officers, 8
CFR 1208.9, that is inapplicable to
EOIR—because asylum officers are
employees of DHS, not EOIR—will be
effective on the effective date.
II. Public Comments on the Proposed
Rule
A. Summary of Public Comments
The comment period for the proposed
rule ended on October 23, 2020. Of the
2,031 comments received, the majority
were from individual and anonymous
commenters. The minority of comments
came from non-profit organizations, law
firms, and members of Congress. While
some commenters supported the NPRM,
the majority of commenters expressed
opposition to the rule, either in whole
or in part.
In general, comments opposing the
rule misapprehended its impact;
misstated its contents; failed to
recognize that significant portions of it
merely incorporate longstanding law—
from either statute or binding
precedent—into the regulations,
provided no evidence—other than
isolated and often distinguishable
anecdotes—to support broad claims of
particular impacts; made unverified,
speculative, and hypothetical
generalizations that do not account for
the case-by-case and individualized
decision-making associated with
adjudicating asylum applications; were
inconsistent with applicable law,
contrary to the Department’s
considerable experience in adjudicating
asylum applications, or otherwise
untethered to a reasoned basis; lacked
an understanding of relevant law and
procedures regarding asylum
application adjudications or the overall
immigration system; failed to engage
with the specific reasons and language
put forth by the Department in lieu of
broad generalizations or hyperbolic,
unsupported presumptions; or, reflected
assertions rooted in the rule’s failure to
agree with the commenters’ policy
preferences rather than the
identification of specific legal
deficiencies or other factors the
Department should consider. As the vast
majority of comments in opposition fall
within one of these categories, the
Department offers the following general
responses to them, supplemented by
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more detailed, comment-specific
responses below.5
In particular, the Department notes
that many, if not most, commenters
failed to engage with or acknowledge
the existing law that informed the
NPRM, much of which has been in
existence for years with no noted
challenges or expressions of concerns.
For example, the provisions
incorporating the statutory requirement
that ‘‘in the absence of exceptional
circumstances, final administrative
adjudication of the asylum application,
not including administrative appeal,
shall be completed within 180 days after
the date an application is filed,’’ INA
208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii), do not reflect any
novel or recent legal development. That
statutory provision was enacted nearly
25 years ago and is currently in force
with no noted challenges since it was
enacted. Moreover, EOIR reiterated its
policy to comply with that statutory
provision over two years ago, including
the legal conclusion that ‘‘good cause’’
is not synonymous with ‘‘exceptional
circumstances,’’ over two years ago.
EOIR Policy Memorandum 19–05,
Guidance Regarding the Adjudication of
Asylum Applications Consistent with
INA § 208(d)(5)(A)(iii) (Nov. 19, 2018),
https://www.justice.gov/eoir/page/file/
1112581/download.
Similarly, the rule incorporates
principles established by binding
precedent allowing—if not also
requiring, in some instances—an
immigration judge to submit evidence in
an asylum adjudication. See 85 FR at
59695. In particular, Matter of S–M–J–
has been binding for over 20 years,
again with no noted challenge to it.
Further, the rule, in multiple ways,
reflects influence from longstanding
existing regulations that have also not
been the subject of challenge or concern.
See, e.g., 8 CFR 1208.5(a) (‘‘Where
possible, expedited consideration shall
be given to [adjudicating asylum]
applications of detained aliens.’’); 8 CFR
1208.5(b) (‘‘An alien crewmember shall
be provided the appropriate application
forms and information required by
section 208(d)(4) of the Act and may
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5 Many
comments were also inconsistent, both
internally and with other comments. For example,
some comments posited that the rule focused too
much on efficiency whereas others argued that the
rule did not promote efficiency at all. Some
comments asserted that immigration judges are
‘‘biased,’’ while others suggested that the
Department should allow immigration judges to
continue to set deadlines rather than providing
deadlines through rulemaking or should even
promote immigration judges to become judges
under Article I of the Constitution. The Department
has addressed all of these comments individually
herein and acknowledges that inconsistencies make
many of the comments even less persuasive.
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then have 10 days within which to
submit an asylum application to the
district director having jurisdiction over
the port-of-entry. The district director
may extend the 10-day filing period for
good cause.’’); 8 CFR 1208.3(c)(3) (‘‘An
asylum application that does not
include a response to each of the
questions contained in the Form I–589,
is unsigned, or is unaccompanied by the
required materials specified in
paragraph (a) of this section is
incomplete.’’). Commenters did not
persuasively explain—if they attempted
to explain at all—why these wellestablished legal principles are
inappropriate bases for the rule.
Most commenters failed to
acknowledge the benefits of the rule,
such as expeditious consideration of
meritorious asylum claims by detained
aliens. Indeed, commenters did not
explain why it would be preferable for
the Department not to expedite
consideration of asylum claims,
particularly those made by detained
aliens, given the risks of faded
memories and evidence degradation that
adjudicatory delays invite. Relatedly,
few, if any, commenters acknowledged
or addressed the issue of how a delay
in adjudication also makes it more
difficult for aliens to obtain pro bono
representation. See, e.g., Human Rights
First, The U.S. Immigration Court,
https://www.humanrightsfirst.org/sites/
default/files/HRF-Court-BacklogBrief.pdf (last visited Dec. 4, 2020)
(hereinafter ‘‘HRF Report’’) (‘‘In a
February 2016 survey conducted by
Human Rights First of 24 pro bono
coordinators at many of the nation’s
major law firms, nearly 75 percent of
pro bono professionals indicated that
delays at the immigration court are a
significant or very significant negative
factor in their ability to take on a pro
bono case for legal representation before
the court.’’). In short, commenters failed
to put forth a persuasive argument for
why the Department should not
expeditiously consider asylum
applications, especially for detained
aliens with meritorious claims,6 and the
6 To the extent that commenters tacitly
acknowledged that most asylum claims are not
meritorious and, thus, that such claims should not
be expedited in order to allow aliens additional
time in the United States, the Department finds
such an argument hardly compelling. The
Department recognizes and agrees with the
Supreme Court’s observation that ‘‘as a general
matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in
the United States.’’ INS v. Doherty, 502 U.S. 314,
323 (1992). Any rationale for encouraging or
supporting the dilatory adjudication of cases both
is both inherently unpersuasive and wholly
outweighed by the importance of timeliness and
fairness—especially to detained aliens with
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Department is unaware of any such
argument that would outweigh the
benefits in that regard in the rule.
Most, if not all, commenters opposed
to the rule appeared to view its
procedural changes wholly through a
results-oriented lens such that a
proposal that commenters speculatively
believed would cause aliens to ‘‘win’’
fewer cases was deemed objectionable,
even without evidence that such a result
would follow. Such a view appeared to
have been based on a tacit belief that
aliens were entitled to specific
outcomes in specific cases,
notwithstanding the relevant evidence
or law applicable to a case, and that the
rule inappropriately required
adjudicators to maintain impartiality in
adjudicating cases rather than
continuing to provide what commenters
viewed as favorable treatment toward
aliens. To the extent that commenters
simply disagree as a policy matter that
asylum cases should be adjudicated in
a timely manner, Doherty, 502 U.S. at
323 (‘‘As a general matter, every delay
works to the advantage of the deportable
alien who wishes merely to remain in
the United States.’’), or that the
Department should take measures,
consistent with due process, to ensure
the timely completion of such cases, the
Department finds such policy
disagreements utterly unpersuasive.
Many, if not all, commenters failed to
acknowledge the reality that no one
rulemaking can cover every conceivable
adjudicatory scenario. EOIR currently
has over 570,000 asylum applications
pending adjudication, and each one is
subject to adjudication based on its own
individual facts. Consequently, the
Department cannot rule out the
possibility that at least one claim will
present an issue not contemplated by
the rule, including a unique scenario
posited by a commenter. Nevertheless,
the rule is expected to cover most
applications and contains appropriate
safeguards—e.g., extension of a filing
deadline for good cause—that should
adequately address any unique or
unexpected situations.
Relatedly, many commenters
criticized the Department for not
providing more quantitative data in the
NPRM, yet did not explain what type of
data that is actually tracked would be
appropriate, particularly to address
unique or hypothetical scenarios put
forth by commenters. The level of
granularity presumed by commenters
for hundreds of thousands of asylum
applications does not exist, and even if
it did, the Department could not be
meritorious claims—in adjudicating asylum
applications.
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expected to consider every speculative
possibility presented by commenters.
Moreover, the portions of the rule
incorporating existing law—e.g., the
180-day adjudication deadline, the
authority of an immigration judge to
submit evidence—are not dependent on
data because the stem from alreadybinding authority.
Many commenters raised questions
about the possibility of the Department
issuing multiple final rules related to
asylum in 2020. The Department
acknowledges that it has proposed and
finalized multiple rules in 2019 and
2020 but categorically rejects any
assertions that it has done so for any
sort of nefarious purpose. Each of the
Department’s rules stands on its own,
however, and each includes
explanations of its basis and purpose,
while allowing for public comment.
Further, the interplay and impact of all
of the rules is speculative at the present
time, particularly due to ongoing and
expected future litigation, which may
allow all, some, or none of the rules to
ultimately take effect. Nevertheless, to
the extent commenters noted some
potential overlap or joint impacts, the
Department regularly considers the
existing and potential legal framework
when a specific rule is proposed or
implemented.
Regarding the interplay of this rule
and other recent proposed and finalized
rules, the Department notes that
commenters generally focused on the
Department’s proposed joint rule with
DHS from June 2020, Procedures for
Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear
Review, 85 FR 36264 (June 15, 2020).
According to commenters, that
proposed rule, if implemented, would
result in a significant number of aliens
being subject to proceedings under 8
CFR 1208.2(c) and, thus, subject to the
new 15-day filing deadline under this
rule.7 Although the Department does
not dispute that by finalizing that
proposed rule, there will be an
additional category of aliens subject to
proceedings under 8 CFR 1208.2(c) and,
thus, subject to the new filing deadline
under this rule, it does note that
commenters’ suggestion of the size of
that category is both grossly
speculative—because the number would
7 Commenters also posited that DHS’s expansion
of expedited removal authority would further
increase the number of affected aliens subject to
this rule. See Designating Aliens for Expedited
Removal, 84 FR 35409 (July 23, 2019); see also
Make the Rd. New York v. Wolf, 962 F.3d 612, 618
(D.C. Cir. 2020). As discussed, infra, the size of the
population affected has little relationship to the
import of the rule, and even if the size were
material to some degree of operational impact, the
benefits of the rule far outweigh any such impacts.
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depend on variables that cannot be
accurately predicted such as new
inflows of illegal immigration, the
validity of any claims made by aliens in
those inflows subject to the credible fear
screening process, and DHS’s exercise of
prosecutorial discretion—and wholly
outside the Department’s control.
Moreover, commenters did not
explain why the size of the population
subject to proceedings under 8 CFR
1208.2(c) matters for purposes of the
rule. Regardless of the size of the
population subject to a 15-day filing
deadline, the Department, DHS, and the
asylum applicant all have a strong
interest in the expedited consideration
of an asylum claim, particularly where
that claim is a meritorious one put forth
by a detained alien. Further, even if the
size of the population of aliens subject
to 8 CFR 1208.2(c) mattered to the
degree alleged by commenters, the
Department has determined, as a matter
of policy, that the benefits of the rule as
a whole—e.g., better effectuation of
statutory directives, the expedited
consideration of meritorious asylum
claims, and the elimination of
provisions that are immaterial to EOIR—
far outweigh any negative impacts that
it would, including in tandem with
other rules.
Additionally, commenters who raised
the issue of the interplay between this
rule and the June 2020 proposed rule
failed to acknowledge that this rule
would actually provide an additional
safeguard to that rule to ensure that an
alien’s asylum claims is not
inadvertently pretermitted. See 85 FR at
36277; see also note 47, infra. For all of
these reasons—and as discussed in more
detail below—the Department simply
finds commenters’ concerns about this
rule in connection with other proposed
and finalized rules to be unavailing.
Relatedly, regarding the 15-day filing
deadline in particular, many, if not most
commenters, failed to acknowledge that
the 15-day deadline in the rule for filing
an asylum application applies
principally to detained aliens. That
provision applies to aliens in
proceedings under 8 CFR 1208.2(c), and
those categories are usually subject to
detention unless paroled from custody
by DHS. The categories of aliens
described in 8 CFR 1208.2(c) encompass
aliens subject to inspection and
detention as applicants for admission,
INA 232(a), 235(a)(3) and (d)(2), 8 U.S.C.
1222(a), 1225(a)(3) and (d)(2); 8 CFR
235.3(a), including those who are later
denied admission, and aliens who have
entered the United States and
subsequently become subject to removal
through an administratively final
removal order issued by DHS outside of
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immigration proceedings conducted by
the Department, INA 241(a)(2), 8 U.S.C.
1231(a)(2). In either case, however, the
Department lacks authority to either
parole the aliens into the United
States—and, thus, order them as
applicants for admission released from
DHS custody—or to order the release of
aliens subject to a final order of
removal. Consequently, unless released
by DHS, such aliens would be subject to
custody during the adjudication of their
asylum applications.
More specifically, alien crewmembers
described in 8 CFR 1208.2(c)(1)(i)(A)
who are applicants for a landing permit
are subject to detention during
inspection. INA 232(a), 235(a)(3) and
(d)(2), 254(a)(1), 8 U.S.C. 1222(a),
1225(a)(3) and (d)(2), 1284(a)(1); 8 CFR
235.3(a), 252.1(a). Alien crewmembers
described in 8 CFR 1208.2(c)(1)(i)(B)
who have been refused permission to
land are also subject to detention. INA
254(a)(2), 8 U.S.C. 1284(a)(2). Alien
crewmembers described in 8 CFR
1208.2(c)(1)(i)(C) who have been granted
permission to land are subject to
detention and removal if their landing
permits are subsequently revoked.8 INA
252(b), 8 U.S.C. 1282(b); 8 CFR 252.2.
Alien stowaways described in 8 CFR
1208.2(c)(1)(ii) found to have a credible
fear of persecution or torture are subject
to detention pursuant to INA
235(b)(1)(B)(ii), 8 U.S.C.
1225(b)(1)(B)(ii). Alien applicants for
admission under the Visa Waiver
Program (‘‘VWP’’) described in 8 CFR
1208.2(c)(1)(iii) are subject to detention
during inspection, like all arriving
aliens. INA 232(a), 235(a)(3) and (d)(2),
8 U.S.C. 1222(a), 1225(a)(3) and (d)(2);
8 CFR 235.3(a). An alien admitted under
the VWP who is found to be deportable
is ordered removed. 8 CFR 217.4(b).9
Accordingly, an alien admitted under
the VWP described in 8 CFR
1208.2(c)(1)(iv) is subject to detention as
an alien with an order of removal. INA
241(a)(2), 8 U.S.C. 1231(a)(2).10
8 Landing permits are typically valid for 29 days.
8 CFR 252.1(d). An alien crewman who applies for
asylum during that 29-day period expresses an
intent not to depart on the vessel or aircraft on
which the crewman arrived and, thus, triggers the
possibility of revocation of the crewman’s landing
permit. INA 252(b), 8 U.S.C. 1282(b); cf. 8 CFR
1208.5(b)(1) (‘‘If the alien [crewman] makes such
fear known to an official while off such conveyance,
the alien shall not be returned to the conveyance
but shall be retained in or transferred to the custody
of the [DHS].’’).
9 As a condition of participation in the VWP, an
alien agrees to waive any right to contest any
removal action against the alien, other than through
an application for asylum, which would necessarily
include detention. INA 217(b)(2), 8 U.S.C.
1187(b)(2).
10 Aliens subject to the Guam-Commonwealth of
the Northern Mariana Islands VWP are subject to
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Alien applicants for admission with
an S visa described in 8 CFR
1208.2(c)(1)(vi) are subject to detention
during inspection, like all arriving
aliens. INA 232(a), 235(a)(3) and (d)(2),
8 U.S.C. 1222(a), 1225(a)(3) and (d)(2);
8 CFR 235.3(a). An alien admitted as an
S nonimmigrant described in 8 CFR
1208.2(c)(1)(vi) who is subsequently
ordered removed, 8 CFR 236.4(b), is also
subject to detention. INA 241(a)(2), 8
U.S.C. 1231(a)(2).11
Aliens described in 8 CFR
1208.2(c)(1)(v) are those ordered
removed under INA 235(c), 8 U.S.C.
1225(c). Such aliens are subject to
detention as aliens with final orders of
removal. INA 241(a)(2), 8 U.S.C.
1231(a)(2). Similarly, aliens described in
8 CFR 1208.2(c)(2) are those subject to
removal orders, either through
reinstating a prior order, INA 241(a)(5),
8 U.S.C. 1231(a)(5), or through the
issuance of an administrative order of
removal as an alien convicted of an
aggravated felony, INA 238(b), 8 U.S.C.
1228(b). Such aliens are subject to
detention as aliens with orders of
removal. INA 241(a), 8 U.S.C. 1231(a).
The June 2020 proposed joint rule on
asylum procedures was recently
finalized without change to the
provision cited by commenters. See
Procedures for Asylum and Withholding
of Removal; Credible Fear and
Reasonable Fear Review, signed by the
Attorney General and the Acting
Secretary of Homeland Security on
December 2, 2020. The Department
expects that there will be a litigation
challenge to that rule, just as there has
been to most of its recent immigrationrelated rulemakings.12 Thus, the
Department cannot predict definitively
whether that rule will go into effect as
finalized.
Nevertheless, even if that joint rule
goes into effect and aliens who receive
a positive credible fear determination
are placed in proceedings under 8 CFR
1208.2(c), 85 FR at 36267, such aliens
would still be subject to detention
unless paroled by DHS. See Jennings v.
Rodriguez, 138 S. Ct. 830, 842 (2018)
(‘‘Read most naturally, [8 U.S.C.]
§§ 1225(b)(1) and (b)(2) thus mandate
detention of applicants for admission
until certain proceedings have
concluded. Section 1225(b)(1) aliens are
detained for ‘‘further consideration of
the application for asylum,’’ and
§ 1225(b)(2) aliens are in turn detained
for ‘‘[removal] proceeding[s].’’ Once
those proceedings end, detention under
§ 1225(b) must end as well. Until that
point, however, nothing in the statutory
text imposes any limit on the length of
detention. And neither § 1225(b)(1) nor
§ 1225(b)(2) says anything whatsoever
about bond hearings.’’); see also Matter
of M–S–, 27 I&N Dec. 476 (A.G. 2018)
(‘‘The [INA] provides that, if an alien in
expedited proceedings establishes a
credible fear, he ‘shall be detained for
further consideration of the application
for asylum.’ . . . There is no way to
apply those provisions except as they
are written—unless paroled, an alien
must be detained until his asylum claim
is adjudicated. The Supreme Court
recently held exactly that, concluding
that section 235(b)(1) ‘mandate[s]
detention throughout the completion of
[removal] proceedings’ unless the alien
is paroled.’’ (emphasis added) (citations
omitted) (quoting Jennings, 138 S. Ct. at
844–45)).13
similar procedures regarding refusal of admission
and removal as aliens subject to the regular VWP.
8 CFR 212.1(q)(8). Consequently, aliens described
in 8 CFR 1208.2(c)(1)(vii) and (viii) are subject to
detention on the same bases as aliens described in
8 CFR 1208.2(c)(1)(iii) and (iv).
11 As a condition of being granted S
nonimmigrant status, an alien waives any right to
contest, other than an application for withholding
of removal, any removal action against the alien,
including detention, before the alien obtains lawful
permanent resident status. INA 214(k)(3)(C), 8
U.S.C. 1184(k)(3)(C); 8 CFR 236.4(a).
12 The Department recognizes 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 it is aware
that litigation will likely follow this rule, just as it
has others of a similar nature. 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 Department is 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)). Nevertheless, the
Department does not believe that the inevitability
of litigation over contested issues is a sufficient
basis to preclude the exercise of statutory and
regulatory authority in furtherance of the law and
the policies of the Executive Branch.
13 The Ninth Circuit has affirmed a preliminary
injunction restoring the availability of bond
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81703
In short, aliens described in 8 CFR
1208.2(c) are generally subject to
detention by DHS under various statutes
and regulations with no authorization
for the Department to reconsider DHS’s
detention determination and, thus,
unless paroled by DHS, will be detained
while their asylum applications are
adjudicated by immigration judges. A
pre-existing regulation unaltered by this
rule already directs the Department to
adjudicate such applications
hearings for aliens who have received positive
credible fear determinations, though that decision
was premised on a putative constitutional due
process right to a bond hearing rather than the
statutory interpretation of INA 235(b)(1), 8 U.S.C.
1225(b)(1), advanced by the Supreme Court in
Jennings and the Attorney General in Matter of M–
S–. See Padilla v. Immig. And Cust. Enforc., 953
F.3d 1134 (9th Cir. 2020), petition for cert. filed,
Dkt. 20–234 (Aug. 27, 2020). As noted, supra, the
Department also expects the rulemaking referenced
by commenters, which places aliens who receive a
positive credible fear determination in proceedings
under 8 CFR 1208.2(c), to be challenged through
litigation. The Department cannot predict the
outcomes of either litigation, but the possible
outcomes would not affect this final rule or the
Department’s consideration of comments regarding
it. If the provisions of the joint rulemaking
referenced by commenters are finalized as proposed
but then permanently enjoined, then that rule
would, of course, have no effect on this final rule.
If the provisions of the joint rulemaking referenced
by commenters are finalized as proposed and go
into effect and if the Government’s position in
Padilla is ultimately determined to be correct, then
this final rule addresses that situation as discussed
herein. In that situation, all aliens subject to
proceedings under 8 CFR 1208.2(c) would remain
ineligible for bond hearings, and their cases would
warrant expeditious treatment accordingly,
consistent with longstanding regulatory language, 8
CFR 1208.5(a) (‘‘Where possible, expedited
consideration shall be given to [asylum]
applications of detained aliens’’). Finally, if the
provisions of the joint rulemaking referenced by
commenters are finalized as proposed and go into
effect but the Government’s position in Padilla is
ultimately determined not to be correct, then aliens
who receive a positive credible fear determination
would still be subject to both detention and
proceedings under 8 CFR 1208.2(c), but would be
eligible for bond hearings before an immigration
judge. In that situation, any impacts of this rule
have also been accounted for, contrary to
commenters’ suggestions. Aliens seeking bond in
that situation would have a strong incentive—
consistent with this final rule—to file an asylum
application expeditiously to bolster their arguments
in support of release from custody. See, e.g., Matter
of Andrade, 19 I&N Dec. 488, 491 (BIA 1997)
(alien’s potential eligibility for relief reflects on the
likelihood of the alien’s appearance at future
hearings which addresses whether an alien is a
likely flight risk). To be sure, the filing of an asylum
application does not automatically entitle an alien
to bond. See Matter of R–A–V–P–, 27 I&N Dec. 803
(BIA 2020) (alien with a pending asylum
application but no family, employment, community
ties, or probable path to obtain lawful status is a
flight risk who does not warrant release on bond).
But, consistent with 8 CFR 1208.5(a), an alien who
is not granted bond still warrants expeditious
consideration of his or her asylum application
which is facilitated by this final rule. In short,
regardless of the possible permutations of litigation
outcomes related to relevant other rulemakings
referenced by commenters, this final rule has fully
considered the possible variations and commenters’
attendant concerns.
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expeditiously. 8 CFR 1208.5(a) (‘‘Where
possible, expedited consideration shall
be given to [asylum] applications of
detained aliens.’’). Commenters did not
challenge this longstanding directive or
provide persuasive reasons why
detained aliens—e.g., those subject to
proceedings under 8 CFR 1208.2(c),
including those are subject to such
proceedings if the recent joint rule goes
into effect—should not be given
expedited consideration, particularly if
such aliens have meritorious claims and
the approval of the claim will lead to
release from detention. The Department
believes strongly that asylum claims of
detained aliens should receive
expeditious considerations, and
commenters’ suggestions to the contrary
overall were not sufficiently compelling
to warrant changing this rule.
Finally, many comments appeared
rooted in a belief that EOIR’s
adjudicators are incompetent or
unethical and are either incapable or
unwilling to adhere to applicable law.
Some commenters explicitly traduced
immigration judges; for example, one
commenter asserted that immigration
judges have a ‘‘routine bias’’ against
aliens and that immigration judges
routinely ‘‘engage in a host of other
unethical behavior toward
respondents.’’ Such generalized, ad
hominem allegations of bias or
impropriety are insufficient to
‘‘overcome a presumption of honesty
and integrity in those serving as
adjudicators.’’ Withrow v. Larkin, 421
U.S. 35, 47 (1975); see also United
States v. Chem. Found., Inc., 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.’’).
Moreover, they provide no principled
basis for the Department to consider
changes to the NPRM.
In sum, the Department issued the
NPRM for the reasons given in order to
ensure asylum claims are expeditiously
considered, especially claims of
detained aliens, to better effectuate
statutory directives in the INA, to
ensure authority is appropriately
exercised, to ensure immigration judges
consider only complete asylum
applications and a developed record
containing probative evidence from
credible sources, and to promote
impartial and timely adjudications
consistent with the law. It did not do so
for any nefarious purpose, nor did it
intend for its procedural changes to
have any substantive bearing on the
outcomes of additional cases, which
flow from the evidence and the law, not
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the Department’s process. As discussed
herein, nothing in the NPRM singles out
specific populations of aliens, including
unrepresented aliens,14 nor do any of its
changes fall disproportionately upon
such groups in unacceptable manner. To
the extent that commenters did not
engage with the NPRM itself, provided
unsupported assertions of fact or law,
attacked, tacitly or explicitly, the
motivations of the Department’s
adjudicators, or otherwise put forward
suggestions based on their preferred
results rather than an impartial and
timely process, the Department declines
to adopt those comments. Further, to the
extent that commenters provided
substantive analysis and raised
important issues, the Department has
considered all of them; however, on
balance, except for changes noted above,
it has determined that the policy and
operational benefits of the rule
expressed above outweigh all of the
issues raised by commenters.
Accordingly, although the Department
has reviewed all comments received, the
vast majority of them fall into the
groupings outlined above, and few of
them are persuasive for reasons
explained in more detail below.
B. Comments Expressing Support
Comment: Several commenters
expressed general support for the rule
and immigration reform. Commenters
noted the need for regulatory reform
given the delays in asylum
adjudications. These commenters
supported all aspects of the rule, which
they stated would allow the Department
to resolve cases in an expeditious
manner. One commenter stated that the
rule will increase efficiency and bring
asylum and withholding regulations
within the plain meaning and intent of
the INA.
Response: The Department agrees
with the commenters that these
regulatory changes will better support
congressional intent and increase
operational efficiencies.
C. Comments Expressing Opposition
1. Administrative Procedure Act:
Concerns Regarding the Ability To
Comment
Comment: Many commenters objected
to the Department’s allowance of a 3014 The Department has fully considered the
possible impacts of this rule on the relatively small
pro se population of aliens with asylum
applications. As discussed below, however, the rule
neither singles such aliens out for particular
treatment, nor does it restrict or alter any of the
many procedural avenues such aliens already have
available to them in advancing their cases. Further,
nothing in the rule inhibits the availability of pro
bono counsel to assist such aliens as appropriate.
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day comment period instead of a 60-day
or longer period and requested an
extension of the 30-day comment
period. Commenters cited Executive
Order 12866 and stated that a 60-day
comment period is the standard period
of time that should be provided for a
complex rule like the NPRM.
Commenters stated that the 30-day
comment period is an insufficient
period of time for them to adequately
consider and respond to the significance
of the rule’s proposed changes. Many
commenters emphasized that the
comment period is particularly
inadequate given the broader context
that DOJ independent and DHS and DOJ
jointly have recently published a
number of complex proposed rules on a
wide range of immigration-related
topics.15 Commenters noted that the
closeness of the comment periods for
these rules and that, because the
Departments have not yet issued final
rules, commenters cannot accurately
know the broader regulatory context for
providing comment on the instant rule
in a short period of time.
Commenters also stated that the 30day comment period is insufficient in
the context of the COVID–19 pandemic,
which, commenters explained, has
strained commenters’ ability to prepare
comments due to unique childcare,
work-life, and academic difficulties.
Commenters noted examples of other
Federal agencies that have extended
comment periods due to the impact of
COVID–19.16
Other commenters further noted that
there was a Federal holiday (Labor Day)
during the comment period or that
natural disasters and wildfires have
caused other personal difficulties that
make the 30-day comment period
particularly short for meaningful
comment.
Some commenters stated that there is
no need for urgency given the
lengthiness of the immigration court
process, delays due to COVID–19, and
the effective closure of the border by the
Centers for Disease Control and
Prevention under Title 42 authority.17
Other commenters explained that the
15 For example, commenters noted, inter alia, the
following recent rulemaking actions: Appellate
Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure, 85 FR 52491
(Aug. 26, 2020); Procedures for Asylum and
Withholding of Removal; Credible Fear and
Reasonable Fear Review, 85 FR 36264 (June 15,
2020).
16 See, e.g., Bureau of Consumer Financial
Protection, Debt Collection Practices (Regulation F);
Extension of Comment Period, 85 FR 30890 (May
21, 2020).
17 See Order Suspending the Right to Introduce
Certain Persons From Countries Where a
Quarantinable Communicable Disease Exists, 85 FR
65806 (Oct. 16, 2020).
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30-day comment period was particularly
short as they were also working extra
hours during the comment period to
take action for clients in advance of the
October 2, 2020 effective date for U.S.
Citizenship and Immigration Services’
(‘‘USCIS’’) new fees. U.S. Citizenship
and Immigration Services Fee Schedule
and Changes to Certain Other
Immigration Benefit Request
Requirements, 85 FR 46788 (Aug. 3,
2020).
Some commenters noted that DHS has
provided 60-day comment periods for
much less complex or significant items
related to forms. See, e.g., Agency
Information Collection Activities;
Extension, Without Change, of a
Currently Approved Collection: Petition
for U Nonimmigrant Status, 85 FR
58381 (Sept. 18, 2020).
Response: The Department believes
the 30-day comment period was
sufficient to allow for meaningful public
input, as evidenced by the 2,031 public
comments received, including
numerous detailed comments from
interested organizations. The NPRM was
comparatively short (seven full pages in
the Federal Register plus parts of two
other pages), it proposed to amend only
nine paragraphs in all of chapter V of 8
CFR, and the issues it addressed were
either already set by statute (e.g., the
180-day adjudication deadline in INA
208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii)), well-known to aliens
and practitioners (e.g., completing and
filing an application), well-established
as immigration court practices (e.g., the
setting of filing deadlines and the
development of the record by an
immigration judge), or the deletion of
provisions that were practically
inapplicable to EOIR (e.g., former 8 CFR
1208.7 and 1208.9). Moreover,
commenters generally did not explain
what additional issues they would raise
during a longer comment period, and
the volume of comments—as well as
their breadth—reflects an ample
consideration of issues during the
comment period. In short, there is no
indication that the comment period was
insufficient.
Additionally, to the extent that
commenters referred to other proposed
rulemakings as a basis for asserting the
comment period should have been
longer, their comparisons are
inapposite. No other proposed
rulemaking cited by commenters
addressed small, discrete changes which
relate to well-established provisions and
with which aliens and practitioners
have been quite familiar with for
decades. In short, the Department
acknowledges and has reviewed
commenters’ concerns about the 30-day
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comment period, but those comments
are unavailing for all of the reasons
given herein.
Similarly, contrary to commenters’
assertions, there is no evidence that
either the COVID–19 pandemic or the
Labor Day holiday had any effect on the
sufficiency of the 30-day comment
period. To the contrary, the number of
comments received, as well as their
breadth, are strong evidence that the
comment period was sufficient,
particularly for a short NPRM that made
few substantive changes. Employers
around the country have adopted
telework flexibilities to the greatest
extent possible, and the Department
believes that interested parties can use
the available technological tools to
prepare their comments and submit
them electronically. Indeed, nearly
every comment was received in this
manner. Further, crediting the
assertions of commenters would
effectively preclude rulemaking by the
Department for the duration of the
COVID–19 outbreak, regardless of the
length of the comment period. The
Department finds no basis to suspend
all rulemaking while the COVID–19
outbreak is ongoing. Similarly,
commenters’ assertions regarding Labor
Day reflect an intent to impose a blanket
rule that any comment period
encompassing a Federal holiday should
always be extended, but that position is
not supported by law, policy, or
practice. The Department acknowledges
that particular commenters may have
faced individual personal circumstances
which created challenges to
commenting, but that assertion is true of
every rulemaking. Further, there is no
evidence of a systemic inability of
commenters to provide comments based
on personal circumstances, and
commenters’ assertions appear to reflect
a desire to slow the rulemaking due to
policy disagreements rather than an
actual inability to comment on the rule.
Overall, the Department finds that
neither the COVID–19 pandemic nor
any other particular circumstances
alleged by commenters limited the
public’s ability to meaningfully engage
in the notice and comment period.
The Administrative Procedure Act
(‘‘APA’’) does not require a specific
comment period length, see generally 5
U.S.C. 553(b)–(c). While it is true that
Executive Order 12866 recommends a
comment period of at least 60 days, no
specific length is required. Rather,
Federal courts have presumed 30 days
to be a reasonable comment period
length. For example, the D.C. Circuit has
stated that ‘‘[w]hen substantial rule
changes are proposed, a 30-day
comment period is generally the
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shortest time period sufficient for
interested persons to meaningfully
review a proposed rule and provide
informed comment.’’ Nat’l Lifeline Ass’n
v. Fed. Commc’ns Comm’n, 921 F.3d
1102, 1117 (D.C. Cir. 2019) (citing Petry
v. Block, 737 F.2d 1193, 1201 (D.C. Cir.
1984)).
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., North Carolina Growers’ Ass’n. 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). Here, 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 Saints
Peter and Paul Home v. Pennsylvania,
140 S. Ct. 2367, 2385 (2020) (‘‘The
object [of notice and comment], in short,
is one of fair notice.’’ (citation omitted)).
Finally, commenters’ comparisons to
the time allowed for comment on
changes related to forms are inapposite.
By statute, the Paperwork Reduction Act
(‘‘PRA’’) requires a 60-day comment
period for proposed information
collections like those referenced by the
commenters. 44 U.S.C. 3506(c)(2)(A). In
contrast, as explained above, there is no
similar statutory requirement for the
proposed rule itself. Overall, the
Department disagrees that the comment
period was too short or that commenters
did not receive fair notice and an
opportunity to respond.
Comment: Some commenters accused
the Department of engaging in
‘‘staggered rulemaking,’’ which,
according to commenters, has made it
impossible for them to adequately
comment on the potential effect of this
rule. According to commenters, several
pending rulemakings could ‘‘radically
alter’’ procedures before the EOIR. As
such, commenters asserted that, without
knowing which proposed rules will
ultimately be published and how they
might be altered in their final form, they
are being forced to comment without
being able to consider the full aggregate
effect of all of the Department’s
proposed rules.
Response: The Department did not
purposefully separate its policy goals
into separate regulations in order to
prevent the public from being able to
meaningfully review and provide
comment and rejects any assertions to
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the contrary. The Department
acknowledges that it has proposed
multiple rules in 2019 and 2020 but
categorically rejects any assertions that
it has done so for any sort of nefarious
purpose. Each of the Department’s rules
stands on its own, includes
explanations of their basis and purpose,
and allows for public comment, as
required by the APA. See Little Sisters
of the Poor Saints Peter & Paul Home,
140 S. Ct. at 2386 (explaining that the
APA provides the ‘‘maximum
procedural requirements’’ that an
agency must follow in order to
promulgate a rule). Further, the
interplay and impact of all of the rules
is speculative at the present time, both
because many of them are not yet
finalized and because of ongoing and
expected future litigation, which may
allow all, some, or none of the rules to
ultimately take effect. Nevertheless, to
the extent commenters noted some
potential overlap or joint impacts, the
Department regularly considers the
existing and potential legal framework
when a specific rule is proposed or
implemented. Further, nothing in any
rule proposed by the Department,
including the one underlying this final
rule, precludes the public from
meaningfully reviewing and
commenting on that rule. Moreover,
even if all rules were in effect, the
Department has concluded that the
benefits of the instant rule discussed in
the NPRM, e.g., 85 FR at 59693–98 and
herein—as well as the benefits
discussed in the other rules ultimately
outweigh any combined impact the
rules may have.
2. General Opposition
The majority of commenters opposed
the rule, and many commenters
expressed generalized statements of
opposition, sometimes in overwrought
and tendentious terms, that were not
specifically related to the rule’s
substantive changes.
Comment: Several commenters stated
that the rule conflicts with American
values and its deeply rooted policy of
welcoming immigrants and refugees,
which, commenters asserted, would
damage the Nation’s standing in the
world. Moreover, a number of
commenters stated that the rule is
immoral, cruel, or the product of racist
or other ill-intent. Other commenters
expressed statements of admiration for
immigrants or asylum seekers, such as
commenters’ belief that asylum seekers
as a group contribute positively to the
United States.
Response: The rule is not immoral,
cruel, motivated by racial animus, or
promulgated with discriminatory intent.
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Instead, the rule is intended to help the
Department better allocate limited
resources in order to more expeditiously
adjudicate meritorious asylum and
statutory withholding of removal
claims. For example, setting a 15-day
deadline for asylum applications in
asylum-and-withholding-only
proceedings will help streamline the
process by ensuring that immigration
judges can adjudicate such claims
expeditiously. Similarly, establishing a
deadline by which an incomplete
application must be returned will allow
cases to be adjudicated in a timely and
predictable manner. Likewise, the
clarifications regarding what materials
an immigration judge may consider will
prevent time being wasted on from noncredible sources or material that is not
probative.
Further, this rule is not representative
of a particular value judgment regarding
the contributions or relative merits of
immigrants or asylum seekers in the
United States. Instead, the rule is
intended to increase overall efficiencies
for the processing and adjudication of
asylum applications before EOIR, which
in turn would benefit asylum seekers by
enabling individuals with meritorious
claims to more quickly receive relief
and gain stability in the United States.
Comment: Similarly, many
commenters expressed a belief that the
rule was designed to make the asylum
process more difficult and an attempt to
severely limit immigration through
asylum. Commenters stated that the rule
erects needless barriers for those fleeing
violence and persecution. Numerous
commenters also asserted that the rule
would virtually negate the United
States’ asylum system and turn
immigration courts into deportationfocused entities, which would prioritize
the deportation of asylum seekers rather
than the fair adjudication of their
claims. Several of the commenters
suggested that the underlying motive
behind the rule is a desire by the
administration to end the ability of
people to seek asylum in the United
States. Likewise, many commenters
stated that the rule would essentially
lead to the denial of all asylum claims.
In addition, commenters also asserted
that the rule would result in more
backlogs in the immigration court
system because more appeals would be
filed.
Response: This rule does not in any
way ‘‘negate’’ the United States’ asylum
system, prevent aliens from applying for
asylum, or prevent the granting of
meritorious claims, contrary to
commenters’ claims. To the contrary,
the changes make the asylum system
more efficient and uniform, and will
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ultimately benefit those with
meritorious claims. The Department
agrees with commenters that asylum
remains an important form of possible
relief for individuals seeking protection,
and notes that these changes are needed
to better address the backlog of pending
asylum cases and address current
inefficiencies in the asylum system. See,
e.g., EOIR, Adjudication Statistics: Total
Asylum Applications (July 14, 2020),
https://www.justice.gov/eoir/page/file/
1106366/download. In addition, this
rule will help ensure that the system is
more effective for those who truly have
‘‘nowhere else to turn.’’ Matter of B–R–,
26 I&N Dec. 119, 122 (BIA 2013)
(internal citations omitted).
Additionally, the Department rejects
the assertion that this rule will lead to
further backlogs. The Department has
made or proposed numerous regulatory
changes recently to address
inefficiencies where appropriate, and
this rule is another tool to do so. See,
e.g., Appellate Procedures and
Decisional Finality in Immigration
Proceedings; Administrative Closure, 85
FR 52491 (Aug. 26, 2020) (proposed)
(addressing inefficiencies in case
adjudications at the Board of
Immigration Appeals (BIA)); Expanding
the Size of the Board of Immigration
Appeals, 85 FR 18105 (Apr. 1, 2020)
(interim rule) (adding two member
positions to the BIA so that the BIA may
more efficiently and timely adjudicate
appeals); Organization of the Executive
Office for Immigration Review, 84 FR
44537 (Aug. 26, 2019) (interim rule)
(providing, in part, for more efficient
disposition of cases through a
delegation of authority); EOIR Electronic
Filing Pilot Program, 83 FR 29575 (June
25, 2018) (public notice) (creating a
pilot program to test an electronic filing
system that would greatly improve
immigration adjudication processing in
the immigration courts and eventually
the BIA). Overall, the Department
believes that the rule will not exacerbate
inefficiencies considering all changes in
the aggregate. Moreover, commenters’
prediction that more appeals will be
filed because of the rule is purely
speculative and ignores the case-by-case
way in which asylum applications are
adjudicated.
Comment: Some commenters
expressed concerns with the
Department’s exercise of authority and
jurisdiction related to the rule. For
example, commenters stated that
Congress, not the Department, must be
the entity to 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 province of
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Congress, including commenters’ belief,
as mentioned above, that the rule would
effectively end or eliminate asylum
availability and limit how many asylum
seekers would get 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 only be undertaken by Congress.
Other commenters asserted that the
Department should not amend its
regulations in such close proximity to a
presidential election.
Response: To the extent that
commenters intimated that the
Department should adhere to laws
passed by Congress regarding asylum
adjudications such as INA
208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii), which is incorporated
into the rule, the Department agrees that
it should effectuate the laws passed by
Congress. Commenters are incorrect,
however, that Congress, not the
Department, must make the sorts of
changes to the asylum procedures set
out in the proposed rule. Both the
proposed rule and this final rule are
issued pursuant to the Attorney
General’s statutory authority provided
by Congress. See INA 103(g) and
208(d)(5)(B), 8 U.S.C. 1103(g) and
1158(d)(5)(B). Despite commenters’
statements, the provisions of the rule are
consistent with the Act. Should
Congress enact legislation that amends
the provisions of the Act that are
interpreted and affected by this rule, the
Department will engage in future
rulemaking as needed.
The Department also rejects
commenters’ argument that the
Department’s authority to engage in
rulemaking is related to the relative
timing of a presidential election. The
APA already allows for democratic
input in agency decision-making
through the required notice and
comment procedures. See 5 U.S.C.
553(c). Moreover, the Supreme Court
has stated that ‘‘an agency to which
Congress has delegated policy-making
responsibilities may, within the limits
of that delegation, properly rely on the
incumbent administration’s views of
wise policy to inform its judgments.’’
Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 865
(1984). As such, it is irrelevant that the
presidential election was set to occur in
close proximity to the rule’s publication
and comment period. Further, there is
no law suspending rulemaking within a
certain period before a presidential
election, and the American system of
government does not generally
countenance the cessation of work on
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important policies for an extended
period of time, such as a presidential
election cycle.
Comment: Many commenters also
expressed broad concern that the rule
would erode aliens’ due process rights
in immigration court proceedings.
Specifically, commenters asserted that
the rule would diminish aliens’ due
process rights by rushing the asylum
process and by making it more difficult
for them to have enough time to obtain
representation, pay fees, or gather
records.
Response: Commenters are incorrect
that the rule will impede aliens’ due
process rights in the manner speculated
by commenters. It should be noted that
EOIR’s mission remains ‘‘to adjudicate
immigration cases by fairly,
expeditiously, and uniformly
interpreting and administering the
Nation’s immigration laws.’’ EOIR,
About the Office (Aug. 14, 2018),
https://www.justice.gov/eoir/aboutoffice. In other words, the Department
must balance fairness concerns with the
countervailing need for efficiency and
expeditiousness in EOIR proceedings.
Although the rule changes timing and
other procedural requirements, the rule
does not deny due process to any alien.
Due process in an immigration
proceeding requires notice and a
meaningful opportunity to be heard,
neither of which are affected by this
rule. 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.’’).
None of the changes in the rule limit
aliens in immigration proceedings
before EOIR from obtaining
representation, presenting evidence, or
applying for immigration relief such
that it violates their due process rights.
3. Violates International Law
Comment: Several commenters were
concerned that the rule violates the
United States’ ostensible obligations
under international law, citing the 1948
Universal Declaration of Human Rights
(‘‘UDHR’’), the 1951 Convention relating
to the Status of Refugees (‘‘1951 Refugee
Convention’’), the 1967 Protocol relating
to the Status of Refugees (‘‘1967
Protocol’’), and the CAT. Specifically,
commenters asserted that the rule
violates the international right to seek
asylum, the principle of nonrefoulement, and the international
obligation to provide fair and efficient
asylum procedures.
Commenters stated that the rule’s
provisions implementing a 15-day filing
deadline, requiring an asylum
application fee, and mandatorily
rejecting incomplete applications
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violates the applicant’s right to seek
asylum and the United States’ nonrefoulement obligations. Commenters
explained that the 15-day deadline was
too short and would prevent asylum
seekers from applying for asylum or
accessing legal representation, thereby
subjecting them to the possibility of
return to a country where their life or
freedom may be threatened.
Commenters also stated that the 15-day
filing deadline, when read in
conjunction with the Department’s other
recently proposed asylum rules, would
create a categorical bar to asylum for
many asylum seekers in violation of the
applicant’s right to seek asylum.
Similarly, commenters stated that
requiring an asylum application fee
would prevent asylum seekers from
applying for asylum and that the
Department should include an incomebased or other exception. Commenters
noted that only three other countries
impose an asylum fee but that even
those countries allowed for exceptions.
Commenters stated that requiring such a
fee without an exception raises the risk
of refoulement.
Commenters likewise argued that
mandatorily rejecting incomplete
applications would subject applicants to
potential refoulement for even minor
omissions, such as failing to complete a
field on the Form I–589 that is not
applicable to the applicant. One
commenter noted that the 1951 Refugee
Convention obligates countries to give
applicants the benefit of the doubt,
which should apply to minor errors or
omissions on the form.
Lastly, commenters stated that the
rule does not provide for fair and
efficient procedures, which commenters
explain are an essential element in
applying the 1951 Refugee Convention
and related international obligations.
Commenters explained that
implementing these standards includes
providing a realistic opportunity for
asylum seekers to have their claims
developed, heard in full, and fairly
decided. Commenters alleged that the
15-day filing deadline, the mandatory
rejection of incomplete applications, the
charging of asylum application fees, and
the 180-day adjudication deadline are
not fair procedures because they do not
take into account the difficulties and
needs of asylum-seekers, such as lack of
English language skills, lack of counsel,
unfamiliarity with the U.S. legal system,
and the lasting effects of trauma, among
others. Rather, commenters alleged that
the changes appear to be intended to
prevent asylum seekers from applying
for relief.
Response: This rule is consistent with
the United States’ obligations as a party
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to the 1967 Protocol, which incorporates
Articles 2 through 34 of the 1951
Refugee Convention. 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. These
treaties are not directly enforceable in
U.S. law, but some of their obligations
have been implemented by domestic
legislation and implementing
regulations. See INS v. Stevic, 467 U.S.
407, 428 & n.22 (1984); Al-Fara v.
Gonzales, 404 F.3d 733, 743 (3d Cir.
2005) (‘‘The 1967 Protocol is not selfexecuting, nor does it confer any rights
beyond those granted by implementing
domestic legislation.’’); Foreign Affairs
Reform and Restructuring Act of 1998
(‘‘FARRA’’), Public Law 105–277, sec.
2242(b), 112 Stat. 2681, 2631–822 (8
U.S.C. 1231 note); 8 CFR 208.16(b) and
(c), 208.17 and 208.18; 1208.16(b) and
(c), 1208.17, and 1208.18. Similarly, the
UDHR does not create enforceable
obligations on its own. Sosa v. AlvarezMachain, 542 U.S. 692, 734 (2004) (‘‘But
the [UDHR] does not of its own force
impose obligations as a matter of
international law.’’).
The Department disagrees that this
rule contravenes the UDHR’s article
stating that everyone has the right to
seek asylum protections in other
countries. The rule does not prohibit
anyone from seeking asylum. Instead,
the rule simply requires all applicants to
comply with established filing
requirements, including, for aliens in
asylum-and-withholding-only
proceedings, complying with delineated
filing deadlines. Further, in the rare
instances where an applicant has good
cause to miss the filing deadline, the
immigration judge may extend the filing
deadline after considering the relevant
facts.
Immigration laws should enable the
granting of immigration relief or
protection to eligible individuals, and
the prompt removal of those who are
ineligible. This revision will expedite
the consideration of meritorious claims
and help such aliens obtain relief
quickly while similarly reducing the
likelihood that those with nonmeritorious claims will be able to
remain in the United States for longer
and substantial periods of time. It is in
the national interest and is consistent
with U.S. non-refoulement obligations
that meritorious claims are granted as
quickly as possible while unwarranted
claims are similarly screened out
expeditiously.
The Department disagrees with
comments that the rule’s requirement
that the applicant must pay the required
fee, if any, for submitting a Form I–589
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for the purposes of asylum violates nonrefoulement obligations.18 Because the
rule does not impose a fee for statutory
withholding of removal or protection
under the CAT regulations,19 the rule
would still be consistent with the
provisions of the 1951 Refugee
Convention, 1967 Protocol, and the
CAT. 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); Ramirez-Mejia
v. Lynch, 813 F.3d 240, 241 (5th Cir.
2016); Maldonado v. Lynch, 786 F.3d
1155, 1162 (9th Cir. 2015) (explaining
that Article 3 of the CAT, which sets out
the non-refoulement obligations of
signatories, was implemented in the
United States by the Foreign Affairs
Reform and Restructuring Act of 1998
(‘‘FARRA’’) (Pub. L. 105–277, sec.
2242(b), 112 Stat. 2681, 2631–822 (8
U.S.C. 1231 note)) and its implementing
regulations); see also INS v. CardozaFonseca, 480 U.S. 421, 429, 441 (1987)
(‘‘[Withholding of removal] corresponds
to Article 33.1 of the Convention . . . .
[Asylum] by contrast, is a discretionary
mechanism which gives the Attorney
General the authority to grant the
broader relief of asylum to refugees. As
such, it does not correspond to Article
18 Comments objecting to that fee are beyond the
scope of the rule and the Department generally.
Whether a fee is required for the Form I–589 is a
matter determined by DHS, not by the Department.
See 8 CFR 1103.7(b)(4)(ii). DHS issued a final rule
imposing a $50 fee for asylum applications—other
than for genuine unaccompanied alien children
(UAC) who file for asylum while in immigration
proceedings before EOIR—that was scheduled to go
into effect on October 2, 2020. U.S. Citizenship and
Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request
Requirements, 85 FR at 46791. That rule was
enjoined on September 29, 2020, Immigrant Legal
Res. Ctr. v. Wolf, --- F. Supp. 3d ----, 2020 WL
5798269 (N.D. Cal. 2020). See supra. While that
injunction is in effect, EOIR cannot charge a fee for
asylum applications in its proceedings. Further
discussion of the rule’s provisions regarding the
requirement of aliens to pay a fee is below in
section II.c.4.d.
19 This rule only provides that ‘‘a fee must be
submitted if DHS requires one.’’ As DHS noted in
its final rule regarding a fee for an asylum
application: ‘‘No fee would apply where an
applicant submits a Form I–589 for the sole purpose
of seeking withholding of removal under INA
section 241(b)(3), 8 U.S.C. 1231(b)(3), or protection
from removal under the regulations implementing
U.S. obligations under Article 3 of the Convention
Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT).’’ 85 FR
at 46793 n.17. As noted, supra, the DHS final rule
is currently enjoined and, thus, has not yet taken
effect.
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33 of the Convention, but instead
corresponds to Article 34.’’) (emphasis
in original).
The Department also notes that
rejecting incomplete or deficient asylum
applications does not violate nonrefoulement principles. Again, this rule
does not alter any applicant’s
substantive rights regarding eligibility
for asylum, statutory withholding of
removal, and protection under the
regulations issued pursuant to
legislation implementing the CAT.
When applicants comply with the filing
requirements, including submission of a
completed application, and are
otherwise eligible for consideration,
their applications receive full review
and deliberation. Additionally, even
where the applicant errs in submitting
an incomplete application, the applicant
has the opportunity to correct any
deficiencies within 30 days. Rejection of
an application for failure to comply
with these reasonable filing deadlines
and requirements does not conflict with
the United States’ international
obligations. See, e.g., Hui Zheng v.
Holder, 562 F.3d 647, 655–56 (4th Cir.
2009) (‘‘[T]he U.N. Protocol [and] the
CAT [are] . . . effectuated through a
statutory scheme that Congress has
established, and which the Attorney
General has implemented through
regulations governing both the BIA and
the procedures available to aliens
seeking entry to the United States.’’);
Yuen Jin v. Mukasey, 538 F.3d 143, 159
(2d Cir. 2008); Chen v. Mukasey, 524
F.3d 1028, 1033 (9th Cir. 2008);
Foroglou v. Reno, 241 F.3d 111, 113 (1st
Cir. 2001).
Finally, as stated before, it is widely
accepted that meritorious claims should
be granted as rapidly as possible while
acknowledging that frivolous or
untenable claims be identified as soon
as is feasible in the screening process.
This rule benefits legitimate asylum
claims by clarifying statutory
requirements and streamlining the
asylum process.
4. Concerns With Changes Regarding I–
589 Filing Requirements
a. 15-Day Filing Deadline in Asylumand-Withholding-Only Proceedings
i. General Opposition to the Deadline
Comment: The majority of
commenters expressed opposition to the
15-day deadline. Commenters asserted
that establishing a 15-day deadline
would likely prevent legitimate claims
from being submitted or would be too
short for legitimate claims to adequately
be raised; thus commenters alleged that
the rule would effectively end the U.S.
asylum system and ensure deportations.
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Response: As an initial point, few, if
any, commenters acknowledged that
existing regulations have contained a
10-day application filing deadline for
many years for a particular category of
asylum seekers, with no noted
opposition or complaints. 8 CFR
1208.5(b)(1)(ii). Similarly, most
commenters ignored or downplayed the
rule’s provision of an extension of the
15-day filing deadline for good cause
without addressing why the possibility
of such an extension would not respond
to concerns about timing. Similarly,
most commenters asserted that the rule
required the submission of both an
application and all supporting
documents with no further opportunity
to update or supplement it, but the rule
requires no such thing. The rule
requires only the filing of an application
by a deadline and does not alter existing
provisions regarding the
supplementation of an existing
application. 8 CFR 1208.4(c); cf. Matter
of Interiano-Rosa, 25 I&N Dec. 264 (BIA
2010) (distinguishing between the
submission of an application itself and
the later submission of supporting
documents). To the extent that
commenters ignored or misstated the
actual provisions of the rule, otherwise
failed to engage with the safeguards
provided by the rule, or conflated
different types of filings, the Department
acknowledges such comments but
declines to adopt them based on such
misapprehensions.
Further, commenters’ hyperbolic
statements that the imposition of a filing
deadline that is nevertheless subject to
extension somehow effectively
precludes asylum eligibility or prevents
the filing of an asylum application are
without merit. Moreover, such
statements ignore the reality that those
with meritorious claims typically want
their claims heard as quickly as possible
to avoid evidence becoming stale and to
receive the benefits associated with
asylee status. The Department seeks to
continue extending protection and relief
to aliens with meritorious claims, but
the realities of the size of EOIR’s
pending caseload and the continued
increase in notices to appear filed in
immigration court cannot be
understated. See EOIR, Adjudication
Statistics: Pending Cases, New Cases,
and Total Completions (Oct. 13, 2020),
https://www.justice.gov/eoir/page/file/
1242166/download. Accordingly, as
noted in the NPRM, this rule is designed
to ensure that protection and relief is
not delayed for meritorious claims and
that evidence is preserved to the fullest
extent possible. See 85 FR at 59696
(‘‘[D]elaying filing of the claim risks
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delaying protection or relief for
meritorious claims and increases the
likelihood that important evidence,
including personal recollections, may
degrade or be lost over time.’’). The
Department believes that establishing
this deadline, as well as availability of
an extension for good cause and the
retained ability to supplement or amend
the application later in proceedings,
will best facilitate those aims. See 8 CFR
1208.4(c), (d).
Further, this deadline appropriately
eliminates unnecessary delays in what
should be a streamlined proceeding,
notwithstanding the possibility of an
extension for good cause in unusual
situations. Moreover, as discussed,
supra, aliens subject to proceedings
under 8 CFR 1208.2(c)(1) generally are
detained, and the filing deadline is in
keeping with the instruction that
detained aliens should receive
‘‘expedited consideration’’ of their
asylum claims. Id.
Moreover, commenters alleged that
establishing a 15-day deadline violated
the APA for various reasons, as has been
addressed at length, supra. See section
II.C.4.a.iii for further discussion
regarding this issue.
Comment: Commenters expressed
general opposition to the 15-day
deadline in light of other regulatory
changes that commenters alleged would
drastically increase the number of aliens
subject to the 15-day filing deadline by
increasing the number of aliens in
asylum-and-withholding-only
proceedings. Commenters explained
that these changes are contrary to the
small number of alien crewmembers
subject to the current 10-day filing
deadline, to which the Department
compared the proposed rule.
For example, commenters cited the
Department’s proposed joint rule with
DHS, 85 FR 36264, which commenters
explained would expand the number of
aliens subject to asylum-only
proceedings, would allow immigration
judges to pretermit asylum applications
that failed to establish prima facie
claims for relief, and would expand the
definition of a ‘‘frivolous’’ claim.
Commenters stated that the impact of
this rule and that proposed rule, if
implemented, would result in a massive
amount of people subject to the new
filing deadline.
Similarly, commenters asserted
concerns that the Department failed to
consider the impact of DHS’s expansion
of expedited removal authority, which
commenters stated would further
increase the number of affected aliens.
See Designating Aliens for Expedited
Removal, 84 FR 35409 (July 23, 2019);
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see also Make the Rd. New York, 962
F.3d at 618.
Response: As an initial point, the
number of aliens who may be placed in
asylum-and-withholding-only
proceedings is both speculative and
unpredictable because a precise chain of
events has to occur—involving, inter
alia, international migration flows, the
possibility of the exercise of
prosecutorial discretion, and legal
determinations by adjudicators—in
order to reach that result, and those
events, both discretely and especially in
combination, cannot be predicted with
any degree of precision; moreover,
several links in that chain are wholly
outside the Department’s control. See
Home Box Office, Inc. v. FCC, 567 F.2d
9, 35 n.58 (D.C. Cir. 1977) (per curiam)
(‘‘Moreover, comments which
themselves are purely speculative and
do not disclose the factual or policy
basis on which they rest require no
response. There must be some basis for
thinking a position taken in opposition
to the agency is true.’’). For example,
under the recently-finalized joint rule,
Procedures for Asylum and Withholding
of Removal; Credible Fear and
Reasonable Fear Review, signed by the
Attorney General and the Acting
Secretary of Homeland Security on
December 2, 2020, the Department is
unable to accurately predict the future
number of aliens who would enter or
seek to enter the United States illegally,
be subjected to a credible fear screening
by DHS, receive a positive credible fear
determination by either DHS or an
immigration judge, and, in turn, be
placed into asylum-and-withholdingonly proceedings. Similarly, DHS has
autonomy over its own enforcementrelated decisions and is tasked by
Congress with ‘‘[e]stablishing national
immigration enforcement policies and
priorities.’’ Homeland Security Act of
2002, Public Law 107–296, sec. 402(5),
116 Stat. 2135, 2178 (codified at 6
U.S.C. 202(5)). Consequently, the
Department has neither control over nor
the means to predict how many aliens
DHS may subject to expedited removal
procedures as opposed to other
enforcement options or the exercise of
prosecutorial discretion. Thus, while
the Department is aware that these other
rules may have some impact on
immigration proceedings relevant to this
rule, the size and nature of that impact
is speculative and unknowable because
of intervening factors, namely levels of
illegal immigration and DHS’s exercise
of its prosecutorial discretion authority.
Moreover, even if that impact were
predictable, the Department has
determined, as a matter of policy, that
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the benefits of the rule—e.g., better
effectuation of statutory directives, the
expedited consideration of meritorious
asylum claims, and the elimination of
provisions that are immaterial to EOIR—
far outweigh any negative impacts that
the rule would have, either singularly or
in tandem with other rules.
Moreover, assuming, arguendo, that
other rules increase the number of
aliens subject to asylum-andwithholding proceedings under 8 CFR
1208.2(c), the provisions of this rule
would remain important to effectuate.
As discussed, supra, aliens subject to
proceedings under 8 CFR 1208.2(c) are
generally subject to detention unless
paroled by DHS. Both parties, especially
in cases of aliens with meritorious
claims, and the immigration courts have
an interest in the expeditious
consideration of asylum claims made by
detained aliens. In fact, current
regulations already provide for such
expedited consideration, 8 CFR
1208.5(a), and commenters did not
explain why detained aliens should not
receive expedited consideration of their
asylum claims nor challenge the
application of 8 CFR 1208.5(a). In short,
regardless of whether the rule is
considered alone or in conjunction with
other rules, it simply reaffirms the
importance of well-established
principles, namely adhering to statutory
deadlines and providing expedited
consideration of asylum claims for
detained aliens, particularly for
meritorious claims. Commenters’
suggestions that the Department should
depart from these principles are
unpersuasive.
Furthermore, the Department’s
reasoning for the 15-day deadline does
not rely on or involve the number of
aliens who may be affected. In other
words, the proposed rule at 85 FR
36264—nor the finalized rule,
Procedures for Asylum and Withholding
of Removal; Credible Fear and
Reasonable Fear Review, signed by the
Attorney General and the Acting
Secretary of Homeland Security on
December 2, 2020—had no bearing on
the reasoning underlying the deadline
in the rule at hand. In the proposed rule,
85 FR at 59693–94, the Department
explained that aliens in asylum-andwithholding-only proceedings are
‘‘generally already subject to removal
orders, denials of applications for
admission, or denials of permission to
land in the case of crewmembers, and
are often also detained . . . . [T]heir
only avenues for relief or protection are
applications for asylum, statutory
withholding of removal, and protection
under the regulations issued pursuant to
legislation implementing U.S.
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obligations under the [CAT ] . . . and
they would not be in asylum-andwithholding-only proceedings if they
had not already claimed a fear of
persecution or torture upon being
returned to their home countries.’’ The
Department subsequently concluded
that because asylum and withholding of
removal are the ‘‘sole issues to be
resolved in the proceeding and are
squarely presented at the outset of the
proceeding . . . there is no reason not
to expect the alien to be prepared to
state his or her claim as quickly as
possible.’’ 85 FR at 59694. In addition,
the Department provided further
reasoning for its decision to establish a
deadline: Delayed filing risks delayed
protection or relief for meritorious
claims; delayed filing increases the
likelihood that evidence may degrade or
be lost; and applicants may simply
delay proceedings, thus causing
inefficiencies in what should be a
streamlined proceeding. See id. The
Department also noted that a deadline
was consistent with current regulations
establishing a 10-day deadline for
detained crewmembers to file an asylum
application, 8 CFR 1208.5(b)(1)(ii), and
directing the agency to provide
‘‘expedited consideration’’ to asylum
applications filed by detained aliens, 8
CFR 1208.5(a). Id. None of these factors
relies upon or is altered based on the
number of aliens subject to proceedings
under 8 CFR 1208.2(c)(1).20
Comment: Commenters claimed the
rule’s inclusion of the possibility of an
extension of the filing period for good
cause was disingenuous for several
reasons. First, commenters claimed that
case quotas and performance metrics
would incentivize judges to deny
requests for extensions. Second,
commenters claimed that adjudicating
an extension request, which takes time
and effort from all parties involved, did
not align with the Department’s
purported aims of streamlining the
process.
Response: As an initial point,
immigration judges are not subject to
any performance metric related to the
length of a case adjudication; thus,
whether they would grant an extension
or not would have no bearing on any
applicable performance measure.21 Even
20 The Department notes, however, that to the
extent commenters argue more aliens will be in
asylum-and-withholding-only proceedings and
subject to the 15-day filing deadline in the future,
such arguments further the Department’s reasoning
rather than counter it. In other words, the
Department’s concerns to ensure efficiency,
accurate recall of claims, and avoiding
gamesmanship are greater if more proceedings are
benefited than fewer.
21 Non-supervisory immigration judges are
subject to a biannual performance work plan based
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if immigration judges were subject to a
performance measure that was relevant
to the rule, immigration judges are well
aware that it is not appropriate to base
continuance or extension decisions
solely on case-completion goals. See,
e.g., Matter of L–A–B–R–, 27 I&N Dec.
405, 416–17 (A.G. 2018) (stating that it
is inappropriate to base a decision on a
continuance request solely on case
completion goals). As discussed, supra,
commenters’ suggestions that
immigration judges are biased or
incompetent and will either ignore
applicable law or will make decisions
on factors other than the record and the
law are not well-taken. The Department
is confident that EOIR’s immigration
judge corps adheres to the highest levels
of professionalism and will continue to
apply their independent judgment and
discretion, 8 CFR 1003.10(b), when
evaluating good cause in relation to
requests for extensions. Further,
immigration judges regularly adjudicate
requests for continuances as part of their
duties, and there is no reason to expect
that any new requests as a result of this
rule would exacerbate the time required
for adjudication of these motions.
Comment: Multiple commenters
alleged that the extension for good cause
was limited to 10 days and disagreed
with a 10-day limit.
Response: Commenters misread the
rule. The extension for good cause is not
limited to 10 days; rather, the
immigration judge in his or her
discretion determines the length of the
extension.
ii. 15 Days Is Too Short
(1) Evidence-Related Concerns
Comment: Commenters asserted that a
15-day deadline is an improper solution
to the Department’s evidence concerns
because 15 days is insufficient to collect
relevant evidence. Commenters
explained that gathering evidence—
including declarations, corroborating
documents such as medical and police
on three elements and a combined total of fourteen
sub-elements. A non-supervisory immigration
judge’s seven performance measures are one of six
sub-elements of one of three job elements. Although
one of the performance measures—i.e., one of seven
sub-sub-elements of one of six sub-elements of one
of three elements—is a case completion goal, the
establishment of a filing deadline has little
correlation with how many cases an immigration
judge may ultimately complete. Moreover, the
failure to meet any performance measure does not
automatically result in the lowering of an
immigration judge’s performance rating. For
instance, for the rating cycle that concluded at the
end of FY 2019, although not all non-supervisory
immigration judges met the numeric performance
measures, every non-supervisory immigration judge
nevertheless received a performance rating of
satisfactory for the job element encompassing those
measures.
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reports, letters from witnesses, country
conditions documentation, and reports
from expert witnesses—and then paying
for certain documents to be translated
takes much longer than 15 days,
especially considering that evidence
may be located abroad or possessed by
a foreign government.
Commenters stated that the
government should have an interest in
considering the complete facts of a
claim. Commenters alleged, however,
that immigration judges would not have
all of the evidence before them for
consideration because (1) aliens would
be unable to submit evidence in such a
short timeframe, or (2) the short
deadline would rush aliens and
inevitably cause contradictions or
omissions in the evidence, thereby
creating unnecessary false credibility
issues.
Commenters explained that aliens
who need or request more than 15 days
are not trying to circumvent the
immigration process; rather, those aliens
seek to engage in the legal immigration
process by gathering all relevant
information and evidence for their
claim, which commenters emphasized
takes longer than 15 days. Further,
commenters explained that aliens who
unnecessarily delay their proceedings
accept the risk of degradation or loss of
evidence. Commenters stated that such
concern should incentivize aliens to act
efficiently but does not warrant a 15-day
deadline.
Response: As discussed, supra,
commenters either misread the rule or
misstated its contents. Nothing in the
rule requires that all supporting
evidence be submitted within 15 days.
Nothing in the rule precludes amending
or supplementing an application after it
has been filed in accordance with
existing regulations. Further, nothing in
the rule requires an immigration judge
to render a decision within 15 days or
to schedule a hearing at any particular
time, subject to the general deadline
contains in INA 208(d)(5)(A)(iii), 8
U.S.C. 1158(d)(5)(A)(iii).
Similarly, commenters did not
address why aliens in proceedings
under 8 CFR 1208.2(c)(1), who are the
one of the subjects of the rule, should
not receive expedited consideration of
their asylum claims because they are
detained. The rule ensures that such
aliens receive expedited consideration
of their applications consistent with
existing regulations, 8 CFR 1208.5(a),
but it does not alter an alien’s ability to
submit evidence in support of an
application.
The rule does not limit evidencegathering to 15 days; rather, it requires
the application and available supporting
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evidence to be submitted within 15 days
of the alien’s first hearing before the
immigration judge. See 8 CFR 1208.4(d)
(‘‘[T]he immigration judge . . . shall set
a deadline of fifteen days from the date
of the alien’s first hearing before an
immigration judge by which the alien
must file an asylum application’’). The
Department believes the 15-day
deadline appropriately balances the
concern regarding risk of degradation or
loss of evidence with the need to
provide adequate time for preparation
and the need to provide expedited
consideration of the claims of detained
aliens, especially those with meritorious
claims.
The Department notes that the 15-day
deadline begins from the date of the
alien’s first hearing with the
immigration judge, which may not
occur until several weeks after the alien
was first encountered by DHS 22 and, in
some cases, until after the alien has
already resided in the United States for
an extended length of time.23 Thus,
contrary to commenters’ suggestions,
aliens are not limited to a 15-day period
to prepare an application or to gather
evidence, and many aliens will have
had a considerably longer period of time
to prepare their claims. In fact, some
aliens subject to the rule will have
already filed an asylum application
even before the 15-day deadline begins.
Compare 8 CFR 1208.2(c)(1)(i) (alien
crewmembers subject to asylum-andwithholding-only proceedings before an
immigration judge), with 8 CFR
1208.5(b)(1)(ii) (requiring an alien
crewmember seeking asylum to file the
application with DHS first—and giving
the alien ten days to do so, subject to an
22 As of October 23, 2020—and excluding aliens
detained in the Institutional Hearing Program and
the Migrant Protection Protocols program, detained
aliens with competency issues, and detained UAC
in the custody of the Department of Health and
Human Services—the median time between the
issuance of a notice to appear for a detained alien
and the filing of a notice to appear with an
immigration court is seven days, and the median
time between the receipt of a notice to appear for
a detained alien and that alien’s first hearing is
sixteen days. Thus, detained aliens will, on average,
have 23 days before the 15-day deadline even
begins to run, and commenters did not persuasively
explain why 38 days, which is more than five
weeks and may be extended due to good cause, is
an insufficient amount of time for an alien to file
an asylum application, especially for an alien who
has recently made a claim of a fear of return to his
or her country of nationality.
23 For example, aliens who have overstayed an
authorized period of admission under the Visa
Waiver Program (VWP) and later seek asylum under
8 CFR 1208.2(c)(1)(iv) may have already spent years
in the United States prior to applying for asylum
and, thus, will have already had ample time to
prepare their case. See, e.g., Matter of D–M–C–P–,
26 I&N Dec. 644, 644–45 (BIA 2015) (alien admitted
under the VWP in 1999 but did not make an asylum
claim in proceedings under 8 CFR 1208.2(c)(1) until
2011).
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extension for good cause—before being
placed in proceedings under 8 CFR
1208.2(c)(1)). Moreover, aliens in DHS
custody who express a desire to seek
asylum or a fear of return are provided
an asylum application at that time,24
and that expression necessarily occurs
before an alien is placed in proceedings
under 8 CFR 1208.2(c)(1) or (2) and
before the alien’s first hearing is
subsequently scheduled. 8 CFR 208.5(a),
1208.5(a). Thus, aliens will always have
had time beyond the 15-day deadline in
order to complete the application, and
few, if any, commenters acknowledged
this additional time in their opposition
to the rule.
Additionally, the aliens affected by
the 15-day filing deadline have
necessarily already considered and
made a claim for asylum or protection,
either through the credible fear process
or when faced with removal or the
denial of an application for admission
under other provisions. Accordingly,
there is no reason to believe—and
commenters did not provide one—that
such aliens cannot memorialize the
claim they recently made on an asylum
application. To the contrary, the
Department expects that aliens with
meritorious claims will generally
welcome the opportunity to have their
24 Although DHS does not have a duty to provide
an asylum application to a detained alien pending
a credible fear determination, it may do so upon
request. 8 CFR 208.5(a). Thus, aliens may be able
to obtain an asylum application even before a
credible fear determination. Even in cases in which
DHS does not provide an asylum application while
a credible fear determination is pending, once a
detained alien receives a positive credible fear
determination—and, thus, may become subject to
proceedings under 8 CFR 1208.2(c)(1)—DHS would
provide an application at that point consistent with
8 CFR 208.5(a). Moreover, although it was not
addressed by commenters, the Department notes
that, in conjunction with DHS, it proposed a rule
in June 2020 that was recently finalized, Procedures
for Asylum and Withholding of Removal; Credible
Fear and Reasonable Fear Review, signed by the
Attorney General and the Acting Secretary of
Homeland Security on December 2, 2020, and—if
it goes into effect, see note 12, supra—would
explicitly codify this requirement and ensure that
it applies to aliens in detention following the
receipt of a positive credible fear determination. 85
FR at 36267 (‘‘Additionally, to ensure that these
claims [i.e., asylum claims by aliens who have
received a positive credible determination and are
subject to proceedings under 8 CFR 1208.2(c)(1)]
receive the most expeditious consideration
reasonably possible, the Departments propose to
amend 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.’’). In short,
all detained aliens subject to proceedings under 8
CFR 1208.2(c)(1) will have already received an
asylum application before those proceedings
commence and before the first hearing is even
scheduled. Thus, aliens subject to the rule will
actually receive more than 15 days to file an asylum
application, even without an extension under 8 CFR
1208.4(d).
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claims heard expeditiously by an
immigration judge so that they may
obtain protection and the benefits of
asylum as quickly as possible.
The Department again emphasizes
that the alien may also seek an
extension of the filing deadline for good
cause. 8 CFR 1208.4(d). Thus, in
appropriate circumstances, an alien may
receive an extension of the deadline in
which to file an application, obviating
the concerns connected to many of the
hypothetical scenarios raised by
commenters.
The Department also reiterates that
aliens may amend or supplement the
application later in proceedings,
pursuant to an immigration judge’s
discretion. Accordingly, aliens and
counsel are welcome to begin gathering
evidence, including translating or
coordinating delivery of certain
documents as referenced by
commenters, at any time and, subject to
any separate filing deadlines set by the
immigration judge, may submit
additional supporting evidence as it
becomes available.
The Department also notes that an
alien’s testimony alone ‘‘may be
sufficient to sustain the applicant’s
burden without corroboration, but only
if the applicant satisfies the trier of fact
that the applicant’s testimony is
credible, is persuasive, and refers to
specific facts sufficient to demonstrate
that the applicant is a refugee.’’ INA
208(b)(1)(B)(ii), 8 U.S.C.
1158(b)(1)(B)(ii). Thus, particularly for
meritorious claims, an alien may not
need extensive documentation to
support his or her claim because an
alien can meet the relevant burden of
proof through credible, persuasive, and
specific testimony. Commenters did not
explain why aliens who would testify
credibly, persuasively, and specifically
would need lengthy amounts of time to
file an application or to obtain
supporting documentation, and the
Department is unaware of any such
reasons.
The deadline itself does not preclude
an immigration judge’s full
consideration of the facts of a claim.
Because applicants for asylum and for
withholding of removal bear the full
burden of proof, see INA 240(c)(4)(A), 8
U.S.C. 1229a(c)(4)(A) (asylum); INA
241(b)(3)(C), 8 U.S.C. 1231(b)(3)(C)
(withholding of removal), the alien is
responsible for ensuring that the
immigration judge has all relevant facts
to consider. If, for example, an alien
needs additional time to file an
application, the alien may request an
extension for good cause. 8 CFR
1208.4(d). Likewise, if the application
needs to be amended or supplemented
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later in the proceedings due to
evidence-issues, the alien may request
to amend or supplement the
application. 8 CFR 1208.4(c). Similarly,
nothing in the rule prohibits an
immigration judge from granting a
continuance to obtain corroborating
evidence in appropriate cases. Matter of
L–A–C–, 26 I&N Dec. 516 (BIA 2015).
Moreover, the rule itself provides that
immigration judges themselves may
submit relevant evidence consistent
with their duty to develop the record in
appropriate circumstances. Through
these mechanisms, the Department
provides aliens a full opportunity to
present all relevant facts to an
immigration judge within the deadline,
and there is no reason why the
establishment of a filing deadline for the
application—as opposed to supporting
documents—would necessarily create a
credibility issue for the alien.
Although the rule referenced the
possibility that, without a deadline,
aliens may attempt to delay
proceedings, the Department does not
believe that is the case for all aliens, nor
did the rule exclusively consider or rely
on that point in establishing the
deadline. For the reasons discussed
above and in section II.C.4.a.iii, the
Department established the deadline
and believes 15 days is an appropriate
timeframe in which an alien must file
an application. The Department
disagrees with the commenters’
conclusion that evidence-related risks
should simply incentivize aliens to
reduce delays or else accept those risks.
The impact of delayed proceedings
reaches far beyond the alien’s case;
delays result in inefficiencies that affect
the entire immigration system. See
generally 85 FR at 59694. In part for that
reason, the rule established the 15-day
deadline rather than rely on aliens
responding to incentives or accepting
the risks associated with delays.
(2) Events Outside of the Alien’s Control
Comment: Commenters argued that
the 15-day filing deadline is too short in
effect due to various circumstances
outside of the alien’s control that may
preclude submission of the application
within the required time period.
Commenters explained that the U.S.
Postal Service (‘‘USPS’’) or other
carriers may be delayed. Relatedly,
commenters said that aliens’ documents
may have been lost or stolen in transit
to the United States.
Some commenters also alleged that
DHS would seize documents at the
border, such that aliens would no longer
have them in their possession to include
with an application for protection or
relief.
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Response: As an initial point, the
Department notes that filing delays and
missing filing deadlines due to thirdparty carriers such as the USPS are
already a possibility in the current
system for considering asylum
applications, and the rule does not alter
that risk. The Department is also
unaware of any systemic issues with
third-party carriers delaying filings, and
any isolated anecdotal instances
identified by commenters are
redressable through existing procedures
such as a motion to accept an untimely
filing. Immigration Court Practice
Manual, ch. 3.1(d)(ii), (iii) (July 2, 2020).
Moreover, as discussed supra, most
aliens subject to the filing deadline will
be detained. Because detained hearings
are generally expedited, there is a
greater possibility that the alien will be
able to file the application directly with
the court and, thus, not need to rely on
an outside carrier. Nevertheless, even in
cases in which there is a legitimate
carrier delay, nothing in the rule
precludes an alien from filing either a
motion to accept the untimely filing, id.,
or an extension of the filing deadline, 8
CFR 1204.8(d).
In addition, the Department
emphasizes that an alien may begin the
application at any time. The 15-day
deadline is merely 15 days from the date
of the first hearing with the immigration
judge; thus, aliens are not prohibited
from beginning an application prior to
the first hearing, nor are they limited to
only a single 15-day period to gather
evidence. As noted above, detained
aliens will have already a copy of an
asylum application from DHS prior to
their first hearing before an immigration
judge and, thus, will have had already
more than 15 days to complete the
application even without an extension.
The Department is unaware of any
practice by DHS of routinely seizing
documents from aliens at the border and
failing to maintain or to return them, as
appropriate. In the Department’s
experience, any documents seized from
aliens that are not returned are
maintained in DHS’s administrative file
on the alien and are available to the
DHS attorney representing the agency
before the immigration judge.
Mechanisms for DHS to return
documents to aliens in custody are
substantially beyond the scope of the
rule. Nevertheless, as officers of the
court with an interest in justice in all
immigration proceedings, the
Department expects that DHS attorneys
would submit any probative evidence in
DHS’s possession in the course of a
proceeding under 8 CFR 1208.2(c)(1) or
(2) and would ensure that no
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misrepresentations are made to an
immigration judge.
Comment: Commenters explained that
it usually takes USCIS three to five
weeks to issue the receipt that the rule
requires be attached to a ‘‘complete’’
application; thus, submitting a complete
application within 15 days is impossible
and outside of a practitioner’s or alien’s
control.
Response: The Department
acknowledges the commenters’
concerns regarding timing with USCIS
to receive a fee receipt, although in the
Department’s experience, USCIS
typically provides a one-day turnaround
in issuing fee receipts and most receipts
are issued within seven days. Moreover,
USCIS allows electronic payment for
some of its most common applications,
USCIS, Forms Available to File Online
(June 11, 2020), https://www.uscis.gov/
file-online/forms-available-to-fileonline, and the Department does not
know whether USCIS intends to allow
electronic payment for asylum
applications if the injunction on
charging a fee is lifted. Nevertheless, in
response to commenters’ concerns, the
Department has amended 8 CFR
1208.4(d) and related cross-references to
that regulation to allow for submission
of alternative proof of payment in the
event that an alien has not received a fee
receipt from USCIS within the filing
deadline. See section I.C.1 for further
discussion regarding this change.
(3) Concerns Related to the Complexity
of the Form I–589
Comment: Commenters argued that
the 15-day filing deadline is too short
due to the complexity of the Form I–589
and most applicants’ lack of Englishlanguage proficiency. Commenters
explained that aliens must usually find
a translator, interpreter, and counsel to
fill out the form and prepare certain
documents. Commenters alleged that
this process often takes weeks but that
such assistance is crucial.
Response: Again, the Department
notes that regulations have contained a
10-day application filing deadline for
many years for a particular category of
asylum seekers, with no noted
opposition or complaints, including
concerns about the complexity of the
form or its requirement to be completed
in English. 8 CFR 1208.5(b)(1)(ii).
Further, as discussed above, the rule
provides an alien an opportunity to
request an extension of the deadline if
the alien needs additional time to
complete the form. Additionally, most
aliens with pending asylum cases, 85
percent, have representation, and an
alien’s representative can assist with
completing the application or, as
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appropriate, requesting an extension of
the filing deadline. EOIR, Current
Representation Rates (Oct. 13, 2020),
https://www.justice.gov/eoir/page/file/
1062991/download.
As discussed, supra, in practice,
aliens subject to the rule will have
additional time beyond 15 days to
complete an asylum application, even
without an extension, and the
Department disagrees with commenters
that the Form I–589 is too complex for
aliens to complete within weeks. The
substantive portion of the Form I–589 is
currently eight pages, half of which call
for biographic information and half of
which request information about the
alien’s claim.25 Tens of thousands of
aliens—and hundreds of thousands in
recent years, EOIR, Total Asylum
Applications (Oct. 13, 2020), https://
www.justice.gov/eoir/page/file/1106366/
download—whose first language is not
English file for asylum every year, and
there is simply no indication that
applicants cannot complete the
application and file it within a few
weeks.26 In short, although the
Department acknowledges the
commenters’ concerns and has fully
considered, they are ultimately
unpersuasive.
The Department believes the 15-day
deadline provides sufficient time for the
alien, in coordination with counsel, an
interpreter, or translator if the alien so
chooses, to apply for relief, particularly
because the actual deadline will be
more than 15 days in practice and
because an alien may request an
extension as appropriate. Further, the
Department reiterates that the 15-day
timeframe begins from the date of the
25 If the recent joint rulemaking, Procedures for
Asylum and Withholding of Removal; Credible Fear
and Reasonable Fear Review, signed by the
Attorney General and the Acting Secretary of
Homeland Security on December 2, 2020, goes into
effect, the substantive portion of the Form I–589
will increase to thirteen pages, though only nine of
those pages call for information about an alien’s
claim.
26 The Department also notes there is a plethora
of information regarding asylum available to aliens
in multiple languages from pro bono or nonprofit
organizations or from international organizations.
For example, the UNHCR maintains a Spanishlanguage translation of the instructions for the Form
I–589, https://www.unhcr.org/585ae89c4.pdf (last
visited Dec. 4, 2020), and multiple advocacy
organizations within the United States, including
ones affiliated with commenters opposing the rule,
have created Spanish-language versions of the form
itself, e.g., Immigration Justice Campaign, I–589 in
Spanish, https://immigrationjustice.us/get-trained/
asylum/application-declaration-evidence/sample-i589-in-spanish/ (last visited Oct. 31, 2020).
Although non-English versions of the I–589 are not
official, they reflect a much greater availability of
information to asylum seekers in languages other
than English—and thus a greater capacity to
complete the form in a timely manner—than most
commenters acknowledged.
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first hearing before the immigration
judge. An alien is not precluded from
beginning the application or seeking
assistance from counsel, an interpreter,
or a translator to prepare the application
before the first hearing.
(4) Concerns Related to Aliens’ Personal
Circumstances and Challenges
Comment: Commenters also
explained that aliens often have limited
financial resources, are usually
uneducated or even illiterate, have
experienced trauma, and are in need of
mental health resources. Considering
those facts, commenters explained that
15 days was especially insufficient to
secure representation or complete the
form on their own, let alone pay the
filing fee.
Response: For many of the same
reasons noted above, the Department
finds these concerns to be both gross
generalizations and unpersuasive. The
Department does not have data—and
commenters did not provide any—and,
thus, declines to agree with a blanket
characterization that most aliens
applying for asylum are illiterate or in
need of mental health treatment.
Further, commenters raising these
issues did not engage with, inter alia,
the existence of a longstanding 10-day
deadline for filing an asylum
application for a particular category of
applicants, 8 CFR 1208.5(b); the
availability of an extension of the 15day deadline for good cause; the fact
that most aliens applying for asylum are
represented; the fact that all aliens
subject to the rule will, in reality, have
more than 15 days to file the
application; the demonstrated ability of
approximately 200,000 aliens to file for
asylum in FY 2019 and FY 2020; the
desire of aliens with meritorious claims
to have those claims adjudicated
quickly; the longstanding regulatory
directive to complete asylum cases of
detained aliens expeditiously; and, the
risks associated with needless delays in
asylum adjudications, including the
degradation of evidence. To the extent
that commenters posited hypothetical
scenarios about particular
characteristics of aliens, the Department
notes that if such scenarios are reflected
by actual applicants, then the
immigration judge can consider whether
any of the factors referenced by the
commenters warrant an extension of the
filing deadline.
(5) Concerns That the Deadline Is Too
Short for Preparation by Counsel
Comment: Commenters explained that
even if an alien was able to timely hire
counsel, counsel would need more than
15 days to prepare and submit the
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application. Commenters provided
examples of common challenges faced
by counsel when working with detained
aliens, which they claimed have only
been exacerbated by the pandemic.
Examples include: Difficulty in
arranging meetings with aliens at
detention centers, especially with
pandemic-related restrictions on
visitors; difficulty in securing
interpreters; and gathering evidence.
Many commenters explained that
representation made a significant
difference to the likelihood of aliens’
success.
Commenters also stated that the 15day period is too short of a time period
to prepare a sufficient application that
is sufficiently thorough to meet the
higher burden of proof required for
success on the application as opposed to
the lower standard for credible fear
reviews. Commenters explained that the
rule failed to acknowledge the
difference between the burden of
proving ‘‘significant possibility’’ of
succeeding on an asylum claim required
to establish credible fear and the burden
of proving every element of an asylum
claim under Matter of A–C–A–A–, 28
I&N Dec. 84 (A.G. 2020). Relatedly,
other commenters claimed the rule’s
reasoning that ‘‘there is no reason not to
expect the alien to be prepared to state
his or her claim as quickly as possible,’’
85 FR at 59694, improperly conflated
the significant possibility standard used
in the credible fear interview with the
preponderance of the evidence standard
used at the hearing. Commenters
explained that the distinction between
these standards—one imposing a
reduced burden while the other
imposed a greater burden that requires
a fully developed record to satisfy all
elements of the claim—demonstrates
that aliens who satisfy the lesser burden
are not necessarily ready to satisfy the
greater burden in such a short
timeframe. In short, given the increased
burden of proof, commenters stated that
15 days would be far too short to
prepare the application, despite the
alien having met the lesser burden of
proof in the credible fear interview.
Response: Again, commenters either
misread or affirmatively misstated the
contents of the rule. Nothing in the rule
limits the alien, or the alien’s
representative, to a single 15-day period
to prepare the application; rather, the
application must be submitted within
15 days of the alien’s first hearing before
the immigration judge. Thus, the alien
will have more than 15 days to prepare
the application, an alien or the alien’s
representative may begin to prepare the
application or gather evidence at any
time, the alien may seek an extension of
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the filing deadline as appropriate, and
the alien may supplement the
application consistent with existing
regulations. To the extent that
commenters raise concerns that COVID–
19 has created or exacerbated logistical
challenges for representatives, the
Department notes that cases of detained
aliens, such as those who are subject to
the rule, have generally been heard
during the pandemic to avoid raising
significant questions about prolonged
detention and that DHS has made
arrangements to ensure unimpeded
communications between aliens and
representatives. See, e.g., Nat’l
Immigration Project of Nat’l Lawyers
Guild v. Exec. Office for Immigration
Review, 456 F. Supp. 3d 16, 22–23
(D.D.C. 2020) (summarizing DHS actions
taken to ensure communication between
detained aliens and representatives
continue during the outbreak of COVID–
19). In isolated instances in which
communication between a
representative and a detained alien has
been interrupted due to COVID–19, the
Department reiterates that the rule
provides for an extension for good
cause, 8 CFR 1208.4(d).
The Department did not conflate the
burdens of proof in credible fear
interviews and the merits of asylum
adjudications. The Department
recognizes the distinction between the
burdens of proof in the interview and
the hearing but believes the rule’s
timeframe is sufficient for aliens to file
their application and meet the requisite
burden of proof. See INA 240(c)(4)(a), 8
U.S.C. 1229a(c)(4)(A) (burden of proof
for asylum); INA 241(b)(3)(C), 8 U.S.C.
1231(b)(3)(C) (burden of proof for
withholding of removal). The
Department referenced the interview in
the proposed rule simply to demonstrate
that aliens who pass the credible fear
interview are on notice of their
eligibility for various forms of relief or
protection, that such aliens would
logically be expected to want to perfect
an application for asylum and soon as
possible thereafter, and that it is not
unreasonable to expect an alien who has
passed a credible fear screening to be
anticipating and preparing for
consideration of their ultimate
application for asylum, including the
preparation of their application and
gathering of evidence, especially if the
alien’s claim is meritorious.
(6) The 15-Day Filing Deadline Will
Limit the Availability of Low Cost or
Pro Bono Legal Services
Comment: Commenters alleged that
the 15-day deadline would put undue
pressure on services funded by local
governments, as well as nonprofit
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organizations and pro bono volunteers,
including clinics and law students, to
assist aliens with their applications in
an effort to reduce the likelihood that
applications would be rejected.
Commenters specifically asserted that
the deadline would interfere with local
government investments into funding
legal service providers, specifically such
providers’ case management processes.
Relatedly, commenters explained that
the deadline would require nonprofit
organizations and clinics to
substantially change their operations
and would limit the number of aliens
they could assist. For example, because
students working in law clinics take a
full course load in addition to taking a
pro bono case, commenters explained
that they would be unable to devote the
hours necessary to meet the 15-day
deadline, thus preventing them from
taking cases, which in turn would harm
aliens who rely on such assistance.
Response: For all of the reasons
previously given—including, inter alia,
the existence of a longstanding 10-day
deadline for a particular category of
asylum applicants with no noted effects
on low cost or pro bono representation,
the similar longstanding existence of
immigration judge authority to set
deadlines for filing applications for
relief, the availability of an extension of
the 15-day deadline for good cause, the
desire of aliens with meritorious claims
to have those claims adjudicated
quickly, the longstanding regulatory
directive to complete asylum cases of
detained aliens expeditiously, and, the
risks associated with needless delays in
asylum adjudications, including the
degradation of evidence—the
Department believes that a general 15day filing period, while providing for
exceptions where the immigration judge
finds good cause, strikes the appropriate
balance between expediency and
fairness and would not impact the
availability of low cost or pro bono
representation. To the contrary,
ensuring that detained aliens file an
asylum application expeditiously may
help ensure that a law school clinic can
assist the alien before a student
completes the clinical course or
graduates. Cf. Registry for Attorneys and
Representatives, 78 FR 19400, 19404
(Apr. 1, 2013) (declining to require law
students to register with EOIR due to,
among other things, ‘‘the transient
nature of law students’ participation in
clinical programs and the limited
circumstances under which students
can represent individuals before EOIR
. . . . the absence of any mechanism to
inform EOIR when a student leaves a
program . . . [and the lack of a]
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regulatory provision permitting a law
student to appear before EOIR if not
enrolled in a ‘legal aid program or
clinic,’ [making] it . . . problematic for
those students to remain registered after
leaving a clinical program’’). Similarly,
because lengthy delays in immigration
proceedings often dissuade pro bono
representation, ensuring expeditious
consideration of asylum applications
filed by detained aliens may encourage
more pro bono representation. See, e.g.,
HRF Report supra. To the extent that
commenters posited hypothetical
scenarios about particular low cost or
pro bono service providers or particular
types of aliens, the Department notes
that if such scenarios are reflected by
actual applicants, then the immigration
judge can consider whether any of the
factors referenced by the commenters
warrant an extension of the filing
deadline.
Further, nothing in this rule requires
the diversion of resources or alteration
of the mission of any low cost and pro
bono legal service providers, including
nonprofit organizations, pro bono
volunteers, clinics and law students,
and government-funded representatives,
beyond what is already required by
existing regulations and professional
responsibility requirements. In other
words, immigration judges already
possess the authority to set application
filing deadlines, 8 CFR 1003.31(c), and
asylum cases of detained aliens are
already subject to expeditious
processing, 8 CFR 1208.5(a). Further,
practitioners are already prohibited
from taking on more work than they can
handle competently. 8 CFR
1003.102(q)(1). Thus, pro bono
organizations already operate under the
conditions outlined in this rule, and
commenters did not identify any
changes that the rule itself would
require that are independent of
longstanding and well-established
regulatory requirements.
Furthermore, the Department believes
that low cost and pro bono legal service
providers, including nonprofit
organizations, pro bono volunteers,
including clinics and law students, and
government-funded representatives, can
meet this deadline, absent situations in
which the deadline may be extended for
good cause. Given the alien’s alreadylimited available avenues for relief, the
common goal of providing relief or
protection to aliens with meritorious
claims as quickly as possible, and the
risk of loss or degradation of evidence
with the passing of time—none of which
were challenged by commenters,
including low cost and pro bono
organizations themselves—the
Department believes it is prudent to
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establish the 15-day deadline. Although
the Department acknowledges that
nonprofit organizations, pro bono
volunteers, and government-funded
representatives, like all legal
representatives, may face unforeseen
challenges confronting deadlines set by
a judge, the Department is confident
that such representatives will be able to
handle such deadlines, just as they do
in other courts and just as they handle
all regulatory changes inherent across
government agencies, and will continue
to be able to provide assistance and
resources to aliens in proceedings before
EOIR.
Finally, the Department notes that
nothing in the rule prohibits nonprofits,
pro bono groups, local governmentfunded representatives, or any other
class of representatives from taking on
an alien’s case at a later point in the
proceedings. An alien who obtains
counsel may choose a representative at
any point in the proceedings, including
after the filing of an application, and the
ability to provide representation does
not require assistance from the very first
hearing. Thus, low cost or pro bono
organizations, local government-funded
representatives, and law school clinics
realistically have more opportunities to
provide assistance that many
commenters suggested.
iii. 15-Day Deadline Is Arbitrary
(1) In General
Comment: Commenters generally
characterized the 15-day deadline as
being arbitrarily short. Commenters
expressed concern that the Department
failed to include specific data regarding
the selection of 15 days as the specific
deadline for filing an asylum
application in asylum-and-withholdingonly proceedings rather than some other
period of time. Commenters alleged that
the Department’s reasoning for the
deadline conflated efficiency with
speed.
Commenters also stated that the
deadline was arbitrary because the
Department’s reasoning was flawed:
Commenters stated the application
process and the adjudication process
were distinct from one another with
separate time periods. Thus,
commenters alleged that changing the
time limit for the application process
would not affect the separate period of
time required for adjudication.
Response: The Department disagrees
that the 15-day deadline is arbitrary,
unrealistic, or unjust. First, the current
regulation at 8 CFR 1208.5(a) directs
that ‘‘[w]here possible, expedited
consideration shall be given to
applications of detained aliens’’
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(emphasis added). The Department
believes that establishing a deadline
will better provide expedited
consideration for aliens described in 8
CFR 1208.2(c)(1) and 1208.4(b)(3)(ii).
Second, and relatedly, EOIR has had a
longstanding policy of allowing asylum
merits hearings for detained aliens to be
scheduled within 14 days of a master
calendar hearing with no noted
objections or problems with that policy.
See, e.g., EOIR Operating Policies and
Procedures Memorandum (‘‘OPPM’’)
00–01, Asylum Request Processing at 8
(Aug. 4, 2000) (‘‘Generally, when setting
a case from the Master Calendar to the
Individual Calendar, a minimum of 14
days should be allowed before the case
is set for the Individual Calendar.’’);
EOIR OPPM 13–03, Guidelines for
Implementation of the ABT Settlement
Agreement at 6 (Dec. 2, 2013)
(‘‘Generally, when setting a detained
[asylum] case from a master calendar
hearing to an individual calendar
hearing, a minimum of 14 days should
be allowed.’’).27 Because—for over two
decades with no noted challenge—the
Department has found two weeks a
potentially sufficient amount of time to
prepare a case for a merits hearing on
a detained alien’s asylum application, it
finds that 15 days is similarly a
sufficient time to simply file the
application, particularly because, as
discussed, supra, the alien will actually
receive more than 15 days to do so.
Third, in determining an appropriate
deadline, the Department considered
the current regulation establishing a 10day deadline for detained crewmembers
to file an application for asylum. 8 CFR
1208.5(b)(1)(ii). Because detained
crewmembers are listed in the
regulation at 8 CFR 1208.2(c)(1) as a
class of aliens subject to asylum-andwithholding-only proceedings, the
Department determined it was
appropriate to set a comparable
deadline for other classes of aliens
subject to asylum-and-withholding-only
proceedings included in 8 CFR
1208.2(c)(1), as well as aliens subject to
withholding-only proceedings under 8
CFR 1208.2(c)(2).
Regarding commenters’ concerns
about the lack of supporting data, the
Department notes first that because each
asylum application is adjudicated on a
case-by-case basis and each application
will vary accordingly in its facts and
support, there is no common metric for
determining how long it will typically
27 Although OPPM 13–03 has been rescinded
because the ABT Settlement Agreement expired in
2019, EOIR maintains a policy of providing at least
14 days between a master calendar hearing and an
individual hearing on an asylum application for
detained aliens.
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take an alien to fill out and submit a
Form I–589 because there is not a
‘‘typical’’ asylum case. Thus, the data
suggested by commenters is not
available and is untraceable due to the
inherently fact-specific nature of each
case. Moreover, commenters did not
suggest that such data was available or
could be obtained. To the extent that the
PRA, 44 U.S.C. 3501 et seq., offers data
and a potential metric for completing
and submitting an asylum application,
the Department notes that—in contrast
to commenters’ concerns—it supports
an even quicker deadline than that
proposed by the Department. See Form
I–589 Instructions at 14 (Aug. 25, 2020),
https://www.uscis.gov/sites/default/
files/document/forms/i-589instr.pdf
(providing a response time of 12 hours,
‘‘including the time for reviewing
instructions, and completing and
submitting the form’’).28 As discussed,
the provision of the rule setting a
deadline follows from well-established
comparable regulations or policies and
is not intended to turn on data.
Nevertheless, even if it were, the best
available data regarding the time it takes
to complete the Form I–589—i.e., the
PRA determination—supports the
deadline chosen by the Department.
Additionally, the Department
emphasizes that the deadline is an
exercise of the Attorney General’s
statutory authority and judgement 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).
Congress acknowledged that there may
be instances in which the Attorney
General may have to act in order to
effectuate the statutory scheme. And,
given the statute’s silence on a filing
timeframe for aliens in asylum-andwithholding-only proceedings, the
Department presumes Congress
intended for the Attorney General to
determine such timeframe as necessary.
In drafting the rule, the Department
considered that the particular aliens
28 If the recent joint rulemaking, Procedures for
Asylum and Withholding of Removal; Credible Fear
and Reasonable Fear Review, signed by the
Attorney General and the Acting Secretary of
Homeland Security on December 2, 2020, goes into
effect, the response time for the Form I–589 will
increase to 18.5 hours. That length of time to
complete the application would still support the
Department’s position that between 15 and 38
days—if not longer based on extensions due to good
cause—is sufficient time to complete the Form I–
589. See also note 22, supra.
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affected—those in asylum-andwithholding-only proceedings—are (1)
already subject to removal orders,
denied applications for admission, or,
for crewmembers, denied permission to
land; (2) generally detained; and (3)
solely limited to claims for asylum and
withholding of removal, which are
presented at the outset of the
proceeding. See 85 FR at 59694. Given
the unique position of these aliens, the
Department concluded there was ‘‘no
reason not to expect the alien to be
prepared to state his or her claim as
quickly as possible,’’ thereby enabling
timely provision of relief or protection
for meritorious claims. Id. The rule also
noted that delaying proceedings risked
degradation or loss of evidence, which
could affect adjudication of the claim.
The Department recognizes that the
deadline for filing the application is
distinct from the general 180-day
deadline for adjudicating the
application established by INA
208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii), and the rule as a
whole addresses both the filing deadline
and the adjudication deadline. Finally,
the Department notes that the rule does
not conflate an interest in efficiency
with pure speed, as commenters
claimed. As discussed throughout, the
rule is rooted in concerns about the
expeditious consideration of claims
made by detained aliens, the need to
ensure meritorious claims are
adjudicated as swiftly as possible, the
risk of evidence becoming stale, and the
expectation that aliens who have
recently claimed a fear of persecution or
torture will be well-situated to perfect
that claim quickly through the filing of
an asylum application. In short, the
Department—as well as asylum
applicants and DHS—has a strong
interest in adjudicating cases
expeditiously, particularly cases of valid
claims for asylum, and the rule does not
simply make proceedings more efficient
for the sake of speed alone.
(2) Arbitrary Because the Deadline
Demands Expediency Not Followed by
the Government Itself
Comment: Some commenters alleged
that the rule creates an arbitrary
deadline because it demands
expediency that commenters alleged
EOIR and DHS do not follow.
Commenters alleged that DHS routinely
fails to file notices to appear (‘‘NTA’’)
with EOIR for more than a year.
Likewise, commenters alleged that it
takes EOIR six months to a year to
schedule a hearing. Commenters
explained that these delays by EOIR and
DHS impose an unreasonable burden on
aliens to constantly check the
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automated system to determine when
they can file.
In a similar vein, commenters
surmised that the Department-facilitated
general Legal Orientation Program
(‘‘LOP’’) would be unable to meet alien’s
needs from the 15-day deadline. Citing
to the LOP Cohort Analysis Phase II
study,29 commenters emphasized that
24% of participants failed to receive any
services until after their first hearing,
while participants who received
services prior to their first hearing
received services on average only seven
days prior to the hearing.
Some commenters stated that the 15day deadline was arbitrary because
backlogs in the immigration courts
would preclude review of such
applications for months or years.
Commenters stated that the rule failed
to address the inefficiencies caused by
the Department itself, such as hiring
new immigration judges without hiring
support staff, restricting immigration
judges’ ability to manage their dockets,
and shifting prioritization of particular
dockets.
Response: As an initial point, many
commenters failed to apprehend that
most aliens subject to the rule will be
detained. Consequently, DHS is unlikely
to wait over a year to file a charging
document, cf. 8 CFR 287.3(d) (except in
an emergency or exceptional
circumstance DHS will determine
within 48 hours of detention whether to
file an NTA), and EOIR is unlikely to
wait six months to a year to schedule a
hearing, EOIR Policy Memorandum 20–
07, Case Management and Docketing
Practices at 2 (Jan. 31, 2020) (detained
cases should be entered into EOIR’s case
management system within three days
of filing the charging document),
https://www.justice.gov/eoir/page/file/
1242501/download. Similarly, detained
aliens are unlikely to need to check the
automated case system to determine
when to file an application.30
This rule does not purport to address
every inefficiency in the U.S.
immigration system. The 15-day filing
deadline instead is designed to increase
one efficiency in asylum-andwithholding-only proceedings—the
timeframe for aliens in such
proceedings to file an application for
29 See Executive Office for Immigration Review,
LOP Cohort Analysis: Phase II (Jan. 29, 2019),
https://www.justice.gov/eoir/file/1125621/
download.
30 Even if an alien is not detained, he or she
would not need to check the automated case system
to determine when to file. The rule clearly states
that the application deadline is 15 days after the
first hearing, which the alien will have attended.
Thus, an alien will always know when the
application is due.
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protection or relief.31 As explained
above, that timeframe is not arbitrary;
rather, it was promulgated to address a
number of the Department’s concerns.
See generally 85 FR at 59693–94. Thus,
the commenters’ concerns with other
inefficiencies at DHS and EOIR,
including the automated system and the
LOP,32 are outside the scope of this
particular rulemaking.
The Department disagrees with
commenters’ allegation that the rule is
arbitrary because the backlog would
nonetheless delay hearings for such
applications. Again, commenters
generally did not apprehend that the
rule will apply principally to detained
aliens, whose cases are generally
adjudicated within 180 days already,
EOIR, Median Completion Times for
Detained Cases (Oct. 23, 2019), https://
www.justice.gov/eoir/page/file/1163621/
download, and do not constitute a
backlog. Because detained cases are
already subject to expeditious
consideration, 8 CFR 1208.5(a), the rule
should not create new delays, contrary
to commenters’ assertions.
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(3) Arbitrary Because the Rule Failed To
Analyze Certain Impacts of the Rule
Comment: Commenters asserted that
the rule was arbitrary because it failed
to analyze the impact of other proposed
or enacted regulatory changes that
commenters explained would increase
the number of aliens subject to the 15day filing deadline.33 Commenters
31 In recent rulemakings, the Department has
sought, in part, to reduce various inefficiencies
throughout the immigration system. See, e.g.,
Appellate Procedures and Decisional Finality in
Immigration Proceedings; Administrative Closure,
85 FR 52491 (Aug. 26, 2020) (proposed) (addressing
inefficiencies in case adjudications at the BIA);
Expanding the Size of the Board of Immigration
Appeals, 85 FR 18105 (Apr. 1, 2020) (interim rule)
(adding two Board member positions to the BIA so
that the BIA may more efficiently and timely
adjudicate appeals); Organization of the Executive
Office for Immigration Review, 84 FR 44537 (Aug.
26, 2019) (interim rule) (providing, in part, for more
efficient disposition of cases through a delegation
of authority); EOIR Electronic Filing Pilot Program,
83 FR 29575 (June 25, 2018) (public notice)
(creating a pilot program to test an electronic filing
system that would greatly improve immigration
adjudication processing in the immigration courts
and eventually the BIA).
32 The Department notes that the same study cited
by commenters disclosed that the general LOP cost
the government over $100 million annually,
increased an alien’s length of detention, did not
generally affect an alien’s case outcome, and did not
increase representation for detained aliens. See
EOIR, LOP Cohort Analysis at 4 (Sept. 5, 2018),
https://www.justice.gov/eoir/file/1091801/
download; cf. 5 CFR 2635.101(b)(11) (requiring the
disclosure of government waste). Consequently,
even prior to the NPRM, the general LOP provided
no benefit to detained aliens, and the rule’s impact
on detained aliens served by the general LOP is
accordingly minimal, if any.
33 See also section II.C.4.a.i above for further
discussion of these proposed changes.
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noted this increase is contrary to the
small number of alien crewmembers
subject to the current 10-day filing
deadline, to which the Department
compares the proposed rule.
Response: As discussed, supra, the
number of aliens who may be placed in
asylum-and-withholding-only
proceedings and, thus, subject to the
deadline established by the rule is
speculative, unpredictable, and
ultimately wholly outside the
Department’s control. See Home Box
Office, 567 F.2d at 35 n.58 (‘‘Moreover,
comments which themselves are purely
speculative and do not disclose the
factual or policy basis on which they
rest require no response.’’). The
Department is unable to accurately or
precisely predict the future number of
aliens who would both enter or seek to
enter the United States illegally and, in
turn, be placed into asylum-andwithholding-only proceedings following
a positive credible fear or reasonable
fear interview; further, commenters did
not offer a prediction, apart from
unsupported generalizations. Similarly,
DHS has autonomy over its own
enforcement-related decisions and is
statutorily tasked by Congress with
‘‘[e]stablishing national immigration
enforcement policies and priorities.’’
Homeland Security Act of 2002, Public
Law 107–296, section 402(5), 116 Stat.
2135, 2178 (codified at 6 U.S.C. 202(5)).
Consequently, the Department has
neither control over nor the means to
predict how many aliens DHS may
subject to expedited removal procedures
as opposed to other enforcement options
or the exercise of prosecutorial
discretion. Thus, while the Department
is cognizant that other rules may have
some impact on immigration
proceedings relevant to this rule, the
size and nature of that impact is
speculative. Moreover, even if that
impact were predictable, the
Department has determined, as a matter
of policy, that the benefits of the rule—
e.g., better effectuation of statutory
directives, the expedited consideration
of meritorious asylum claims, and the
elimination of provisions that are
immaterial to EOIR—far outweigh any
negative impacts that the rule would
have, either singularly or in tandem
with other rules. Such balancing of
preferences is not arbitrary and
capricious.
Moreover, assuming, arguendo, that
other rules increase the number of
aliens subject to asylum-andwithholding proceedings under 8 CFR
1208.2(c), the provisions of this rule
would remain important to effectuate.
As discussed, supra, aliens subject to
proceedings under 8 CFR 1208.2(c) are
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81717
generally subject to detention unless
paroled by DHS. Both parties, especially
in cases of aliens with meritorious
claims, and the immigration courts have
an interest in the expeditious
consideration of asylum claims made by
detained aliens. In fact, current
regulations already provide for such
expedited consideration, 8 CFR
1208.5(a), and commenters did not
explain why it would be arbitrary and
capricious for detained aliens to receive
expedited consideration of their asylum
claims consistent with existing
regulations. The rule simply reaffirms
the importance of well-established
principles, namely adhering to statutory
deadlines and providing expedited
consideration of asylum claims for
detained aliens, especially meritorious
claims. Such re-affirmation is not
arbitrary and capricious.
Furthermore, the Department’s
reasoning for the 15-day deadline does
not rely on or involve the number of
aliens who may be affected. In other
words, the proposed rule at 85 FR
36264, and the recently-finalized rule,
had no bearing on the reasoning
underlying the deadline in the rule at
hand. In the proposed rule, 85 FR at
59693–94, the Department explained
that aliens in asylum-and-withholdingonly proceedings are ‘‘generally already
subject to removal orders, denials of
applications for admission, or denials of
permission to land in the case of
crewmembers, and are often also
detained . . . . [T]heir only avenues for
relief or protection are applications for
asylum, statutory withholding of
removal, and protection under the
regulations issued pursuant to
legislation implementing U.S.
obligations under the [CAT] . . . and
they would not be in asylum-andwithholding-only proceedings if they
had not already claimed a fear of
persecution or torture upon being
returned to their home countries.’’ The
Department subsequently concluded
that because asylum and withholding of
removal are the ‘‘sole issues to be
resolved in the proceeding and are
squarely presented at the outset of the
proceeding . . . there is no reason not
to expect the alien to be prepared to
state his or her claim as quickly as
possible.’’ 85 FR at 59694. In addition,
the Department provided further
reasoning for its decision to establish a
deadline: Delayed filing risks delayed
protection or relief for meritorious
claims; delayed filing increases the
likelihood that evidence may degrade or
be lost; and applicants may simply
delay proceedings, thus causing
inefficiencies in what should be a
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streamlined proceeding. See id. The
Department also noted that a deadline
was consistent with current regulations
establishing a 10-day deadline for
detained crewmembers to file an asylum
application, 8 CFR 1208.5(b)(1)(ii), and
directing the agency to provide
‘‘expedited consideration’’ to asylum
applications filed by detained aliens, 8
CFR 1208.5(a). Id. None of these factors
relies upon or is altered based on the
number of aliens subject to proceedings
under 8 CFR 1208.2(c)(1).34
Furthermore, pursuant to 5 U.S.C.
706(2)(A), an agency must articulate a
‘‘rational connection between the facts
found and the choice made.’’ Burlington
Truck Lines v. United States, 371 U.S.
156, 168 (1962). Those facts must be
‘‘relevant’’ and considered with no
‘‘clear error in judgment,’’ see Citizens
to Preserve Overton Park v. Volpe, 401
U.S. 402, 416 (1971), but a court will
‘‘uphold a decision of less than ideal
clarity if the agency’s path may
reasonably be discerned.’’ Motor
Vehicles Mfrs. Ass’s of U.S., Inc. v. State
Farm Mutual Auto. Ins., 463 U.S. 29, 43
(1983) (quoting Bowman Transp. Inc. v.
Arkansas-Best Freight System, 419 U.S.
281, 286 (1974)). Under that standard,
the rule is not arbitrary and capricious.
The rule clearly discussed the relevant
factors considered in establishing the
15-day filing deadline, at least to an
extent that the rule was ‘‘reasonably
discerned.’’ See 85 FR at 59693–94; see
also section II.C.4.a.iii.(1), supra.
Factors over which the Department
has no control were considered, but as
discussed, they do not impact the nature
of the rule. For example, DHS’s
expansion of expedited removal stems
from DHS’s ‘‘sole and unreviewable’’
authority to determine the scope of
aliens to whom expedited removal
provisions may be applied. INA
235(b)(1)(A)(iii)(I), 8 U.S.C.
1235(b)(1)(A)(iii)(I). The Department
and DHS are separate agencies with
distinct authorities and responsibilities,
and EOIR played no part in developing
or implementing that notice. Further,
the notice bore no effect on the
Department’s decision to establish a
filing deadline for aliens in asylum-andwithholding-only proceedings in an
effort to address inefficiencies in the
system and reduce delayed protection or
relief for meritorious claims. And, to the
34 The Department notes, however, that to the
extent commenters argue more aliens will be in
asylum-and-withholding-only proceedings and
subject to the 15-day filing deadline in the future,
such arguments further the Department’s reasoning
rather than counter it. In other words, the
Department’s concerns to ensure efficiency,
accurate recall of claims, and avoiding
gamesmanship are greater if more proceedings are
benefited than fewer.
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extent that DHS’s action may result in
more aliens subject to proceedings
under 8 CFR 1208.2(c)(1), that outcome,
which is highly speculative, would not
undermine or alter the rule for the
reasons given.
Comment: In addition, commenters
explained that the rule should have
analyzed the impact of the deadline on
aliens, counsel, and court operations,
including the reliance interests of those
parties on the current timeframe to seek
and engage representation. Commenters
stated that the rule’s lack of a cost
benefit analysis on the 15-day deadline
evidenced the Department’s failure to
assess the harms caused by the rule.
More specifically, commenters stated
that the Department failed to consider
the ‘‘severe consequences’’ on aliens
from imposing a 15-day deadline, which
they alleged could lead to denials of
thousands of asylum applications and
subsequent orders of removal under the
BIA’s decision in Matter of R–C–R–, 28
I&N Dec. 74 (BIA 2020). Commenters
stated this would deprive pro se aliens
the opportunity to request extensions or
build a record to explain why they did
not meet the deadline. In regard to
nonprofits, commenters stated that the
Department failed to consider that with
such a short deadline, pro bono
attorneys would be less willing to take
cases and nonprofits would be unable to
place attorneys with detained aliens. In
regard to court operations, commenters
stated that the Department failed to
consider that courts would be
overwhelmed by the number of pro se
cases.
Response: As an initial point,
commenters did not quantify the
asserted ‘‘severe consequences’’ they
alleged would flow from the rule, and
because the Department believes such
consequences are unsupported,
hypothetical, unrealistic, or based on an
incorrect understanding of the rule, it
declines to seek to develop a metric for
measuring them. Moreover, most of the
alleged ‘‘harms’’ asserted by
commenters are, in reality, founded in
policy disagreements over a belief that
not enough asylum applications are
being granted or simply repeat
tendentious or spurious claims about
how the Department considers asylum
cases under the applicable law.
As with other rules issued by the
Department, many, if not most,
commenters asserted that this rule was
‘‘arbitrary and capricious,’’ though
nearly all of those assertions were
ultimately rooted in the rule’s failure to
adopt the commenters’ policy
preferences rather than the
identification of specific legal
deficiencies. The Department has
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Fmt 4701
Sfmt 4700
considered all comments and looked at
alternatives. The Department
understands that many, if not most,
commenters opposing the rule believe
that most asylum applications are
meritorious and, thus, would prefer that
nearly all applications for asylum be
granted, that border restrictions be
loosened accordingly if not eliminated,
and that the Department, as a matter of
forbearance or discretion, decline to
follow the law in situations where doing
so would be beneficial to aliens. For all
of the reasons discussed in the NPRM,
and reiterated herein, however, the
Department declines to adopt those
positions. In short, although the
Department has considered the issues
raised and policy perspectives advanced
by commenters, it finds them
unpersuasive and insufficient to warrant
withdrawing the rule.
Similarly, the Department further
understands that, at the least, most
commenters would prefer to maintain
the status quo, believing that it is
preferable to the changes in the rule.
The Department has been forthright in
acknowledging the changes created by
the rule from the status quo, but has also
explained the reasoning behind those
changes, including the better
effectuation of statutory directives, the
expedited consideration of meritorious
asylum claims, and the elimination of
provisions that are immaterial to EOIR.
The Department has acknowledged
changes in positions, where applicable,
it has provided good reasons for those
changes, it believes the changes are
better implementations of the law than
the status quo, and it has 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).
Many of commenters’ concerns are
also addressed, supra, and the
Department reiterates its prior responses
accordingly. For example, commenters
did not engage with the many reasons
supporting the deadline in the rule—
e.g., the existence of a longstanding 10day deadline for a particular category of
asylum applicants with no noted effects
on pro bono representation, the similar
longstanding existence of immigration
judge authority to set deadlines for
filing applications for relief, the
availability of an extension of the 15day deadline for good cause, the desire
of aliens with meritorious claims to
have those claims adjudicated quickly,
the longstanding regulatory directive to
complete asylum cases of detained
aliens expeditiously, and, the risks
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associated with needless delays in
asylum adjudications, including the
degradation of evidence. The
Department considered those issues, as
well as the ones raised by commenters,
but determined for the reasons given
that a general 15-day filing period,
while providing for exceptions where
the immigration judge finds good cause,
strikes the appropriate balance between
expediency and fairness.
The Department further finds that the
rule would not impact the availability of
pro bono representation. To the
contrary, as discussed, supra, ensuring
expeditious consideration of asylum
applications filed by detained aliens
may promote increased pro bono
representation which is often dissuaded
by lengthy delays in immigration
proceedings. See, e.g., HRF Report supra
(‘‘In a February 2016 survey conducted
by Human Rights First of 24 pro bono
coordinators at many of the nation’s
major law firms, nearly 75 percent of
pro bono professionals indicated that
delays at the immigration court are a
significant or very significant negative
factor in their ability to take on a pro
bono case for legal representation before
the court.’’). To the extent that
commenters posited hypothetical
scenarios about particular pro bono
groups or particular types of aliens, the
Department notes that if such scenarios
are reflected by actual applicants, then
the immigration judge can consider
whether any of the factors referenced by
the commenters warrant an extension of
the filing deadline.
Overall, the Department believes that
nonprofit organizations and pro bono
volunteers can meet this deadline,
absent situations in which the deadline
may be extended for good cause. Given
the alien’s already-limited available
avenues for relief, the common goal of
providing relief or protection to aliens
with meritorious claims as quickly as
possible, and the risk of loss or
degradation of evidence with the
passing of time—none of which were
challenged by commenters, including
pro bono organizations themselves—the
Department believes it is prudent to
establish the 15-day deadline. Although
the Department acknowledges that
nonprofit organizations and pro bono
volunteers, like all legal representatives,
may face unforeseen challenges
confronting deadlines set by a judge, the
Department is confident that such
representatives will be able to handle
such deadlines, just as they do in other
courts and just as they handle all
regulatory changes inherent across
government agencies, and will continue
to be able to provide assistance and
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17:55 Dec 15, 2020
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resources to aliens in proceedings before
EOIR.
The Department further notes that
nothing in the rule prohibits nonprofits,
pro bono groups, or any other class of
representatives from taking on an alien’s
case at a later point in the proceedings.
An alien who obtains counsel may
choose a representative at any point in
the proceedings, including after the
filing of an application, and the ability
to provide representation does not
require assistance from the very first
hearing. Thus, pro bono organizations
have more opportunities to provide
assistance that many commenters
suggested.
In drafting this rule, the Department
considered the potential impacts of the
deadline on various referenced groups,
but finds assertions of deleterious
impacts unsupported, grossly
speculative, and ultimately
unpersuasive. The rule’s extension for
good cause, 8 CFR 1208.4(d), and the
retained provision allowing for future
amendments or supplements to the
application, 8 CFR 1208.4(c), stem from
consideration of aliens, counsel
(including pro bono counsel), and
nonprofit organizations who may
encounter unusual situations that
prevent them from meeting the
deadline. 85 FR at 59694. Commenters’
concerns regarding ‘‘thousands’’ of
denied applications and subsequent
orders of removal are speculative and
overwrought almost to the point of
histrionic. In fact, commenters’
concerns on this point appear to tacitly
suggest that most asylum claims are
non-meritorious, as commenters
generally failed to address the need for
detained aliens with meritorious claims
to have those claims adjudicated as
efficiently as possible.
The deadline, in and of itself, does
not prevent aliens from requesting an
extension or explaining why they did
not meet the deadline. Aliens may
request an extension at any point during
the 15-day timeframe following their
initial hearing. See 8 CFR 1208.4(d).
Further, the deadline is not subject to
retroactive application and does not
infringe on the reliance interests of
aliens subject to the current regulations.
In addition, a significant motivation
for establishing the deadline stemmed
from the Department’s consideration of
inefficiencies in court operations due to
the delayed filing of applications. See
85 FR at 59693–94. Commenters’
concerns that courts will be
‘‘overwhelmed’’ with pro se cases is
both speculative and unsupported by
evidence. To be sure, immigration
courts have seen an increase in cases in
recent years due to increased illegal
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81719
immigration, but the rule will neither
increase nor decrease the number of
overall cases filed with the immigration
courts. See EOIR, Workload and
Adjudication Statistics, New Cases and
Total Completions—Historical, https://
www.justice.gov/eoir/page/file/1139176/
download (reflecting that DHS filed a
record number of new cases—over
500,000—in FY 2019 and then filed the
second highest number of new cases—
over 361,000—in FY 2020).
Furthermore, most asylum cases have
legal representation notwithstanding
this dramatic increase in new case
filings. See EOIR, Workload and
Adjudication Statistics, Current
Representation Rates, https://
www.justice.gov/eoir/page/file/1062991/
download. Nothing in the rule would
logically cause representation rates to
decline or suggests a reason why aliens
would be unable to secure
representation. Moreover, ample
resources for pro se aliens are available
in immigration court. See, e.g., EOIR,
List of Pro Bono Service Providers,
https://www.justice.gov/eoir/list-probono-legal-service-providers; EOIR, Pro
Bono Portal, https://
probono.eoir.justice.gov/; EOIR,
Immigration Court Online Resource,
https://icor.eoir.justice.gov/en/;cf. EOIR
Launches Resources to Increase
Information and Representation (Oct. 1,
2020), https://www.justice.gov/eoir/pr/
eoir-launches-resources-increaseinformation-and-representation. In
short, suggestions that immigration
courts will be ‘‘overwhelmed’’ by pro se
cases are not rooted in the current
reality of asylum adjudications.
Finally, the Department considered
the potential impact of the deadline on
nonprofit or pro bono organizations as
discussed above. See section C.4.a.ii(6),
supra.
iv. Deadline Removes Immigration
Judge Discretion
Comment: Commenters opposed the
deadline because they alleged that it
removed all immigration judge
discretion by requiring judges to deem
an application abandoned if a deadline
is not met. Commenters stated that if
immigration judges did not exercise
discretion in considering the unique
circumstances in each case, due process
would be violated. Commenters
explained that such discretion was
necessary for immigration judges to
manage their dockets, given that
immigration judges were best suited to
set filing deadlines. Commenters also
contended that the rule allegedly did
not allow for an immigration judge to
further extend a filing deadline beyond
the initial extension for good cause.
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Response: Again, commenters
misapprehend the rule, existing
regulations, and the Department’s
administrative interests. Current
regulations, 8 CFR 1003.31(c), already
provide that the ‘‘Immigration Judge
may set and extend time limits for the
filing of applications and related
documents and responses thereto, if
any,’’ and that ‘‘[i]f an application or
document is not filed within the time
set by the Immigration Judge, the
opportunity to file that application or
document shall be deemed waived.’’
The rule does not change this
longstanding principle, and many
commenters failed to acknowledge that
immigration judges already have wellestablished authority to set filing
deadlines and are already authorized to
find applications abandoned for failing
to comply with such deadlines.
Instead, the rule acknowledges the
inefficiency of the current case-by-case
system in which immigration judges
may set varying filing deadlines for
similarly-situated cases. Such a
situation is 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)); Marin-Rodriguez v. Holder,
612 F.3d 591, 593 (7th Cir. 2010) (‘‘An
agency may exercise discretion
categorically, by regulation, and is not
limited to making discretionary
decisions one case at a time under openended standards.’’). The Department is
appropriately using rulemaking to
provide guidance in order to streamline
determinations consistent with its
statutory authority. Although the
Department acknowledges that the rule
may proscribe immigration judge
discretion to a degree, the rule’s
promotion of consistency, clear
deadlines, and continued expeditious
treatment of asylum claims, especially
meritorious asylum claims, by detained
aliens far outweigh its limitation on
immigration judge discretion. 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.’’ (internal citations
omitted)); see also Lopez, 531 U.S. at
243–44 (‘‘[E]ven if a statutory scheme
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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.’’ (internal citations
omitted)).
In addition, immigration judges are
appointed by the Attorney General and
act as his delegates in cases that come
before them. 8 CFR 1003.10(a). They
exercise delegated authority in
accordance with the Act and from the
Attorney General by way of regulations.
8 CFR 1003.10(b); see also INA
103(g)(2), 8 U.S.C. 1103(g)(2). As
generally explained by the Supreme
Court, ‘‘[i]f 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.’’ Chevron,
467 U.S. at 843–44 (1984). This section
of the rule was promulgated in light of
the Act’s silence on a timeframe for
filing applications in asylum-andwithholding-only proceedings.
Regardless of whether immigration
judges previously had discretion under
the regulations to set deadlines, this rule
amends the regulations to establish in
asylum-and-withholding-only
proceedings a 15-day deadline from the
date of the alien’s first hearing to file an
application. EOIR acknowledges this is
a change from the previous regulation;
however, agencies are ‘‘free to change
their existing policies’’ if they provide a
reasoned explanation for the change.
Encino Motor Cars, LLC v. Navarro, 136
S. Ct. 2117, 2125 (2016) (citing Nat’l
Cable & Telecomm. Ass’n. v. Brand X
internet Services, 545 U.S. 967, 981–982
(2005)). That explanation was provided
in the proposed rule, 85 FR at 59693–
94, and is reiterated throughout this
final rule. Generally, the Department
established a 15-day deadline, subject to
an extension for good cause, in order to
reduce the risk of degradation or loss of
evidence, reduce the risk of delayed
grants of protection or relief for
meritorious claims, accomplish the
regulatory directive that detained aliens
receive ‘‘expedited consideration’’ of
their applications, and reduce
inefficiencies caused by delayed filings.
See id.
Accordingly, consistent with
applicable law and existing regulations,
the rule removes individual
immigration judge discretion only as it
applies to the initial deadline for filing
an application for asylum and
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withholding of removal. See 85 FR at
59694. It does not preclude immigration
judges from managing their dockets. In
fact, the rule expressly provides
discretion to immigration judges to
extend the filing deadline for good
cause shown, 8 CFR 1208.4(d)(1), and
the rule does not affect immigration
judges’ discretion to allow an alien to
amend or supplement the application
later in the proceedings, 8 CFR
1208.4(c).
This does not violate due process.
Due process in immigration proceedings
requires notice and a meaningful
opportunity to be heard, neither of
which are affected by this rule. See
LaChance, 522 U.S. at 266 (‘‘The core of
due process is the right to notice and a
meaningful opportunity to be heard.’’).
Aliens in asylum-and-withholding-only
proceedings will continue to be
provided notice of removability, 8 CFR
235.6, 1003.13 (defining ‘‘charging
document’’ used by DHS to initiate
immigration proceedings before an
immigration judge); have an opportunity
to present the case to an immigration
judge, INA 235(b)(1)(B)(ii), 8 U.S.C.
1225(b)(1)(B)(ii), and 8 CFR 1208.2(c);
and have an opportunity to appeal, 8
CFR 1003.1(b)(9).
Without an initial filing deadline,
aliens have no established timeframe in
which to expect consideration of their
applications for relief or protection. The
Department is unaware of any reason
why an alien with a valid claim for
asylum would oppose a clear, defined
filing deadline, especially one that
expeditiously allows the alien to obtain
the benefit he or she seeks (including
release from detention), in favor of
uncircumscribed discretion that could
delay consideration of the alien’s
claims.35 In addition, without an initial
filing deadline, proceedings may be
delayed, resulting in degradation or loss
of evidence that is oftentimes crucial to
an alien’s claims. The Department is
similarly unaware of why an alien
would oppose a deadline that facilitates
expeditious presentation of oftentimes
time-sensitive evidence that may be
35 The Department recognizes and agrees with the
Supreme Court’s observation that ‘‘as a general
matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in
the United States.’’ Doherty, 502 U.S. at 323. Thus,
it is aware that aliens without valid claims may
likely prefer substantial delays in the adjudications
of their cases and, accordingly, oppose any efforts
to increase the efficiency of such adjudications.
Nevertheless, the Department finds any rationale for
encouraging or supporting the dilatory adjudication
of cases both inherently unpersuasive and wholly
outweighed by the importance of timeliness and
fairness—especially to detained aliens with
meritorious claims—in adjudicating asylum
applications.
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crucial to the outcome of the alien’s
case.
Finally, commenters misinterpret the
rule in regard to the extension
provision. There is no limitation to a
single good-cause extension. The only
requirement for the extension would be
that the alien must demonstrate good
cause for any extension. Cf. Matter of L–
A–B–R–, 27 I&N Dec. at 405 (providing
non-exhaustive factors for consideration
when determining whether or not a
party has demonstrated good cause for
a continuance).
v. Deadline Raises Efficiency Concerns
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(1) Agency Incorrectly Prioritizes
Efficiency Above All Else
Comment: Commenters alleged that
the deadline improperly prioritizes
efficiency over all other concerns and
factors.
Response: Commenters are correct
that this section of the rule relates to
efficiency. See 85 FR at 59694 (‘‘[T]he
deadline would ensure only that the
application is filed in a timely manner
consistent with the streamlined and
focused nature of asylum-andwithholding-only proceedings.’’).
However, commenters are incorrect that
the Department considered only
efficiency to the exclusion of all other
factors. As discussed throughout this
rule, the Department considered, inter
alia, that most aliens subject to the rule
are detained, that aliens with
meritorious claims have a strong
incentive to obtain relief—and release
from detention—as quickly as possible,
that aliens who have recently claimed a
fear of persecution or torture will be
well-situated to perfect that claim
quickly through the filing of an asylum
application, that most asylum
applicants have representation, that
filing deadlines are a well-established
part of immigration court practice and
are utilized by courts at all levels, that
an even shorter filing deadline has
existed for many years for a particular
class of asylum applicants with no
noted challenges or complaints, that
delays in adjudication may risk
evidence degradation and may make it
more difficult to obtain pro bono
representation, that the deadline is not
absolute because it may be extended in
appropriate circumstances, and that the
rule does not alter longstanding rules
and practices allowing aliens to
supplement an application and to seek
to have an immigration consider latefiled evidence. The Department has also
fully considered the issues raised by
commenters and finds them largely
unavailing for the reasons given.
Moreover, even if the comments were
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more founded or persuasive, the
Department nevertheless believes that
the concerns asserted by most
commenters are outweighed by the
benefits provided by the rule, namely
consistency in setting filing deadlines,
better effectuation of the regulatory
directive to provided expeditious
consideration to adjudicating asylum
applications of detained aliens, faster
resolution of meritorious claims, and
better protection against claims going
stale due to delay.
In drafting the rule, the Department
considered that the particular aliens
affected—those in asylum-andwithholding-only proceedings—are (1)
already subject to removal orders,
denied applications for admission, or,
for crewmembers, denied permission to
land; (2) generally detained; and (3)
solely limited to claims for asylum and
withholding of removal, which are
presented at the outset of the
proceeding. See 85 FR at 59694. Given
the unique position of these aliens, the
Department concluded there was ‘‘no
reason not to expect the alien to be
prepared to state his or her claim as
quickly as possible,’’ thereby enabling
timely provision of relief or protection
for meritorious claims. Id. The rule also
noted that delaying proceedings risked
degradation or loss of evidence, which
could affect adjudication of the claim(s).
To be sure, the realities of the pending
caseload and the continued increase in
new cases filed by DHS in immigration
court should not be underestimated. See
EOIR, Adjudication Statistics: New
Cases and Total Completions—
Historical (Oct. 13, 2020), https://
www.justice.gov/eoir/page/file/1139176/
download; see also EOIR, Adjudication
Statistics: Pending Cases, New Cases,
and Total Completions (Oct. 13, 2020),
https://www.justice.gov/eoir/page/file/
1242166/download. Further, the
regulation at 8 CFR 1208.5(a) provides
that detained aliens should receive
‘‘expedited consideration.’’ Consistent
with those observations, this deadline
appropriately eliminates unnecessary
delays in what should be a streamlined
proceeding.
Nevertheless, although the rule
referenced the possibility that, without
a deadline, aliens may attempt to delay
proceedings, the rule did not
exclusively rely on that point in
establishing the 15-day deadline.
Further, most commenters failed to
appreciate the rule’s acknowledgment of
‘‘unusual situations’’ in which an alien
may need additional time to file an
application. Id. In such situations,
despite efficiency concerns, the
regulation authorizes the immigration
judge to extend the deadline for good
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81721
cause. 8 CFR 1208.4(d)(1). In short,
contrary to commenters’ arguably
tendentious views, efficiency does not
trump due process, and nothing in the
rule suggests otherwise.
Comment: As an overarching concern,
commenters claimed that the
Department is attempting to speed up
proceedings, by imposing the 15-day
deadline, in the name of efficiency.
Commenters alleged such action
violates due process because aliens and
counsel are deprived of meaningful
presentation of their cases.
Response: The Department reiterates
its response to similar comments, supra,
and adds the following further response.
Due process in immigration proceedings
requires notice and a meaningful
opportunity to be heard, neither of
which are affected by this rule. 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 Department will continue to
provide aliens in asylum-andwithholding-only proceedings notice of
the charges of removability, 8 CFR
235.6, 1003.13 (defining ‘‘charging
document’’ used by DHS to initiate
immigration proceedings before an
immigration judge); an opportunity to
present the case to an immigration
judge, INA 235(b)(1)(B)(ii), 8 U.S.C.
1225(b)(1)(B)(ii), and 8 CFR 1208.2(c);
and an opportunity to appeal, 8 CFR
1003.1(b)(9). In short, nothing in the
rule compromises the provision of
notice to an alien or an alien’s ability to
be heard on any asylum application. To
the contrary, the rule provides an alien
clearer notice of the relevant filing
deadline and seeks to ensure that an
alien will have the opportunity to be
heard before memories or other
evidence fade. See generally 85 FR at
59693–94.
Further, nothing in the rule inhibits
an alien’s ability to meaningfully
present his or her case. The alien will,
in reality, have more than 15 days to file
an asylum application, and the
immigration judge does not adjudicate
the application at the same time that it
is filed. An alien’s testimony alone
‘‘may be sufficient to sustain the
applicant’s burden without
corroboration, but only if the applicant
satisfies the trier of fact that the
applicant’s testimony is credible, is
persuasive, and refers to specific facts
sufficient to demonstrate that the
applicant is a refugee.’’ INA
208(b)(1)(B)(ii), 8 U.S.C.
1158(b)(1)(B)(ii). Thus, particularly for
meritorious claims, an alien may not
need extensive documentation or
preparation to support and present his
or her claim because an alien can meet
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the relevant burden of proof through
credible, persuasive, and specific
testimony. In appropriate cases, aliens
can also request an extension of the
filing deadline and, if necessary, a
continuance of any hearing. In short,
commenters’ allegations that the rule
prohibits aliens and representatives
from presenting their cases are wholly
unfounded.
(2) Deadline Does Not Promote
Efficiency
Comment: Commenters stated that the
15-day deadline would incentivize the
use of ‘‘placeholder’’ applications and
boilerplate language, increased filings of
motions to amend and supplement, and
subsequent piecemeal submission of
supplemental evidence. Commenters
stated that the Department failed to
consider these administrative burdens
on both DHS, adjudicators, and court
staff. The commenters asserted that
allowing at the outset adequate time to
submit a well-prepared application,
rather than rush an application that
consequently needs further paperwork,
would benefit the entire immigration
system.
Response: As an initial point,
commenters did not explain why these
allegations are unique to the rule. Many
aliens currently file ‘‘placeholder’’
applications and boilerplate language,
file motions to amend and supplement,
and submit supplemental evidence for
review piecemeal; thus, immigration
judges are already well-accustomed to
such scenarios. Commenters’ suggestion
that the rule will cause more of these
actions is speculative at best, but even
if it were more well-founded, the
Department expects any additional
burdens to be minimal because it would
represent little change from the
adjudicatory status quo and immigration
judges are already experienced at
handling these actions.
Additionally, commenters again
misstate or misapprehend the rule. It
does not require all paperwork to be
filed by the 15-day deadline—only the
application. Because the alien, by
definition, will have recently made his
or her claim to DHS, the claim should
be fresh and ripe for memorialization. In
fact, because memories fade over time,
it will generally be to the benefit of the
alien to memorialize the claim and file
the application as soon as possible.
Further, commenters simply discount
the availability of an extension of the
deadline to file the application, 8 CFR
1208.4(d), even though it should obviate
concerns about allegedly too-soon filing
deadlines. Further, as stated in the
proposed rule, the purpose of the initial
15-day deadline was to ‘‘ensure only
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that the application is filed in a timely
manner consistent with the streamlined
and focused nature of asylum-andwithholding-only proceedings.’’ 85 FR
at 59694. The Department promulgates
this rule in part to effectuate the
regulatory directive of 8 CFR 1208.5(a)
to provide these aliens with expedited
consideration.
Finally, commenters’ suggestions on
this point may also implicate ethics or
professional responsibility issues.
Although placeholder applications with
boilerplate language are not uncommon
currently, in certain circumstances the
filing of such documents may warrant
disciplinary sanction. See 8 CFR
1003.102(u) (‘‘Repeatedly files notices,
motions, briefs, or claims that reflect
little or no attention to the specific
factual or legal issues applicable to a
client’s case, but rather rely on
boilerplate language indicative of a
substantial failure to competently and
diligently represent the client’’).36 To
the extent that commenters assert that
the rule will cause representatives to
violate their ethical and professional
responsibility obligations, that assertion
is not well-taken. The Department
expects that all representatives will
comport themselves in accordance with
relevant ethics and professional
responsibility rules, and nothing in the
rule excuses engaging in conduct or
behavior that may constitute grounds for
disciplinary sanctions. See 8 CFR
1003.101(a).
Comment: Commenters explained that
the vague ‘‘good cause’’ standard for
extension requests was prone to
inconsistent application that would lead
to confusion and an increased number
of appeals. Commenters stated this
result conflicts with the rule’s purported
efficiency justifications.
Response: The Department
appreciates commenters’ concerns about
the ambiguity of a ‘‘good cause’’
standard and the possibility of
inconsistent application. For those
reasons, among others, the Department
36 Conduct in violation of 8 CFR 1003.102(u) may
implicate other disciplinary grounds as well. For
example, 8 CFR 1003.102(j)(1) prohibits engaging in
frivolous behavior, which includes a practitioner
who ‘‘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 cause unnecessary delay.’’ Further, 8 CFR
1003.102(o) states that a practitioner may be subject
to disciplinary sanctions if he or she ‘‘[f]ails to
provide competent representation to a client.
Competent representation requires the legal
knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation.
Competent handling of a particular matter includes
inquiry into and analysis of the factual and legal
elements of the problem, and use of methods and
procedures meeting the standards of competent
practitioners.’’
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recently proposed regulatory
clarifications of the definition of ‘‘good
cause’’ in the context of continuance
requests in immigration proceedings.
See Good Cause for a Continuance in
Immigration Proceedings, 85 FR 75925
(Nov. 27, 2020). Although that
rulemaking is not final, the Department
expects that when it is finalized, it will
provide helpful guidance to
adjudicators considering questions of
‘‘good cause’’ across different situations.
Until guidance in that rule is finalized,
however, immigration judges will
continue to adjudicate requests alleging
‘‘good cause’’—including extension
requests, which are tantamount to
requests for a continuance—as they
currently do so.37
To the extent that commenters believe
an increased number of appeals will
result from the rule, such a concern is
speculative, ignores the inherently factspecific and case-by-case nature of
asylum adjudications, and tacitly
suggests that most asylum claims are
unmeritorious necessitating the need for
an appeal. Commenters did not support
this assertion regarding appeals, and the
Department declines to endorse the
speculative and unfounded bases for it.
vi. Deadline Deprives Aliens of Right to
Counsel 38
Comment: Commenters alleged that
the 15-day deadline, including the
extension for good cause, violates an
alien’s right to counsel at no expense to
the government.39 Commenters alleged
37 The phrase ‘‘good cause’’ currently appears in
at least 26 places in the Department’s regulations
in 8 CFR chapter V. See, e.g., 8 CFR 1003.20(b),
1003.29, 1240.6. As noted, the Department
acknowledges that ‘‘good cause’’ is not currently
defined in the regulations and, thus, may be subject
to inconsistent application. Nevertheless, the
Department did not propose defining ‘‘good cause’’
in the NPRM for this final rule because continuance
requests are not limited solely to cases involving
asylum applications and, thus, a separate
rulemaking on the subject applicable to all cases
was more appropriate. See 85 FR at 75926–28
(discussing the application of the ‘‘good cause’’
standard in multiple contexts, including those
unrelated to an asylum application). Accordingly,
the Department does not believe that interjecting a
new definition in the final rule would be
appropriate, particularly because commenters did
not supply a workable suggestion for such a
definition. Nevertheless, the Department will
consider commenters’ concerns about the ambiguity
of the ‘‘good cause’’ standard and the possibility of
inconsistent application when it finalizes the
separate rule on ‘‘good cause.’’
38 This section focuses specifically on
representation by attorneys because commenters’
concerns focused specifically on attorneys.
However, the Department notes that aliens may also
be represented by a wide range of representatives
beyond traditional attorneys. See generally 8 CFR
1292.1 (providing who may represent aliens in
proceedings before EOIR).
39 In removal proceedings before an immigration
judge or the Board aliens ‘‘have the privilege of
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that the deadline restricts aliens’ access
to meaningful representation because 15
days is too short to hire counsel and for
such counsel to prepare the application.
Commenters referenced case law that
held that denial of a continuance to seek
counsel deprives aliens of their rights—
Chlomos v. INS, 516 F.2d 310, 313–14
(3d Cir. 1975) and Njoroge v. Holder,
753 F.3d 809, 812 (8th Cir. 2014).
Commenters stated that those cases are
analogous to the 15-day deadline’s
deprivation of an alien’s right to
counsel.
Relatedly, commenters alleged that
the 15-day deadline would undermine
the practice of informing aliens of pro
bono services at their master calendar
hearings, pursuant to 8 CFR
1240.10(a)(2) and (3), thus defeating the
purpose of pro bono organizations’
inclusion in the ‘‘List of Pro Bono Legal
Service Providers.’’
Response: As discussed both above
and below in more detail, the rule does
not affect an alien’s authority or ability
to obtain counsel at no expense to the
government in proceedings subject to
the rule. Accordingly, the Department
reiterates its response to similar
comments elsewhere in the rule and
adds the following further response.
The rule does not limit an alien to 15
days to find counsel. The 15-day
deadline applies to the time in which an
alien must file an application, absent an
extension for good cause, and begins
from the date of the first hearing before
the immigration judge. The deadline
does not establish a time period in
which an alien must secure
representation, and an alien may secure
representation at any time—before,
during, or after the alien files an asylum
application.
In particular, nothing precludes an
alien from hiring counsel before the first
hearing, and as noted above, some
aliens subject to the rule may have
already been in the United States for a
considerable amount of time and, thus,
have had years to procure counsel. An
alien may procure representation at
multiple points between the time the
alien expresses a fear of return and the
commencement of the 15-day period, as
being represented (at no expense to the
Government) by such counsel, authorized to
practice in such proceedings, as he shall choose.’’
INA 292, 8 U.S.C. 1362; see also INA 240(b)(4)(A),
8 U.S.C. 1229a(b)(4)(A). Although the proceedings
subject to the rule under 8 CFR 1208.2(c)(1) are not
removal proceedings, they are generally governed
by the same procedural rules as removal
proceedings set forth in 8 CFR part 1240, subpart
A. 8 CFR 1208.2(c)(3)(i). Thus, they incorporate by
reference an alien’s privilege of being represented
at a hearing conducted under 8 CFR 1208.2(c). See
8 CFR 1240.3 (‘‘The respondent may be represented
at the hearing by an attorney or other representative
qualified under 8 CFR part 1292.’’).
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the alien receives information that may
assist in procuring counsel multiple
times before the 15-day period runs,
even without an extension of that
period.
As an initial point, every alien
detained by DHS, including those
subject to the rule, is ‘‘notified that he
or she may communicate with the
consular or diplomatic officers of the
country of his or her nationality in the
United States.’’ 8 CFR 236.1(e). Through
that communication, an alien’s
consulate may assist the alien with
obtaining representation, including an
‘‘accredited official’’ of the alien’s
country of nationality. See 8 CFR
1292.1(a)(5) (authorizing an accredited
official, defined as ‘‘[a]n accredited
official, in the United States, of the
government to which an alien owes
allegiance, if the official appears solely
in his official capacity and with the
alien’s consent,’’ to represent an alien in
immigration court proceedings).
Although aliens alleging persecution
by the government of their country of
nationality may not be expected to
utilize that same government to obtain
representation, other mechanisms also
exist to assist aliens with understanding
their situation and obtaining
representation. For example, DHS
detention standards authorize the
presentation of information to detained
aliens regarding U.S. immigration law
and procedures and their rights and
options within the U.S. immigration
system. See, e.g., Standard 6.4(I),
National Detention Standards (rev.
2019), https://www.ice.gov/doclib/
detention-standards/2019/6_4.pdf
(‘‘Facilities shall permit authorized
persons to make presentations to groups
of detainees for the purpose of
informing them of U.S. immigration law
and procedures, consistent with the
security and orderly operation of each
facility. ICE/ERO encourages such
presentations, which instruct detainees
about the immigration system and their
rights and options within it.’’).
Additionally, DHS detention centers
typically provide detainees with EOIR’s
list of pro bono representatives and also
provide links to that list publicly. See,
e.g., Laredo Detention Center, Legal &
Case Information, Nationwide pro bono
representatives listing, https://
www.ice.gov/detention-facility/laredodetention-center. Thus, aliens may be
informed of options and the availability
of representation while in DHS custody.
Additionally, for aliens subject to
credible fear procedures, following an
alien’s indication to apply for asylum,
expression of fear of persecution or
torture, or expression of fear of return to
his or her country, the referring officer
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provides a written disclosure on Form
M–444 that describes the alien’s ‘‘right
to consult with other persons prior to
the interview and any review thereof at
no expense to the United States
Government.’’ 8 CFR 235.3(b)(4)(i)(B),
1235.3(b)(4)(i)(B). Next, prior to the
credible fear interview, the alien is
‘‘given time to contact and consult with
any person or persons of his or her
choosing.’’ 8 CFR 235.3(b)(4)(ii),
1235.3(b)(4)(ii). Once the asylum officer
determines that an alien has a credible
fear, the alien is provided Form I–863,
Notice of Referral to Immigration Judge,
see 8 CFR 235.6(a)(2), 1235.6(a)(2),
which includes an advisal regarding the
alien’s right to representation at no
expense to the government and an
attached copy of EOIR’s pro bono list.
Cf. INA 239(a)(1)(E), 8 U.S.C.
1229(a)(1)(E) (requiring the provision of
a list of available pro bono
representatives at the time a notice to
appear is issued). Moreover, for all cases
subject to the rule, DHS provides a copy
of the pro bono list as part of the notice
to the alien when it issues the Form I–
863.
Finally, at the first hearing, the
immigration judge also (1) advises the
alien that he or she may apply for
asylum in the United States or
withholding of removal to those
countries; (2) makes available the
appropriate application forms; (3)
advises the alien of the privilege of
being represented by counsel at no
expense to the government and of the
consequences, pursuant to section
208(d)(6) of the Act, of knowingly filing
a frivolous application for asylum; and
(4) provides to the alien a list of persons
who have indicated their availability to
represent aliens in asylum proceedings
on a pro bono basis. 8 CFR
1240.11(c)(1)(i)–(iii). These procedures
are enshrined in current regulations and
are not altered by the rule. In other
words, existing regulations already
suggest that an immigration judge will
provide an alien with an asylum
application and the pro bono list at the
same hearing and, presumably, will also
set a deadline for the filing of the
application provided. Commenters did
not address this existing procedure, did
not appear to recognize that the rule
does not alter it, except to provide a
clear filing deadline subject to an
extension, and did not explain why this
existing procedure is problematic.40
40 Most, if not all, commenters also failed to
acknowledge that the INA provides only a
minimum 10-day window for an alien to obtain
representation before an alien’s first hearing in
removal proceedings, INA 239(b)(1), (3), 8 U.S.C.
1229(b)(1), (3), and by practice EOIR extends that
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Given the multiple points at which
aliens are advised of the availability of
consultation or representation prior to
the completion of the 15-day deadline
and the availability of an extension of
that deadline for good cause, the
Department rejects commenters’
assertions that the rule inhibits or
eliminates an alien’s meaningful
opportunity to obtain representation.41
Moreover, as noted elsewhere, in
practice, aliens have far more time than
15 days to obtain representation.
Similarly, the rule does not deprive
counsel of time to prepare an alien’s
claim. Because the government is not
required to provide aliens with
representation, the alien is responsible
for securing or consulting with counsel,
and the time afforded counsel is often
a function of how diligent an alien is in
seeking representation. See INA
240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); Cf.
Hidalgo-Disla v. INS, 52 F.3d 444 (2d
Cir. 1995) (finding an immigration
judge’s decision to proceed with a
hearing after providing an alien 26 days
to seek counsel was not erroneous and
dismissing as frivolous an appeal
asserting that it was); Ghajar v. INS, 652
F.2d 1347, 1348–49 (9th Cir. 1981)
period to asylum-and-withholding-only
proceedings. Thus, an alien will have the
statutorily-required minimum amount of time to
obtain counsel, and the rule does not alter that
procedure.
41 Despite the availability of the option for
representation at no expense to the government in
proceedings subject to this rule, 8 CFR 1240.3, and
the fact that the overwhelming majority of aliens
seeking asylum obtain representation, the
Department recognizes that a certain small
percentage of aliens do not obtain representation.
The Department understands that some aliens do
not secure representation because they do not wish
to pay the fee charged by a potential representative.
The Department also understands that many
representatives, due to ethical or professional
responsibility obligations, will not take cases of
aliens who are ineligible or present weak claims for
relief or protection from removal because they do
not wish to charge money for representation when
representation is unlikely to affect the outcome of
the proceeding. These situations illustrate only that
some aliens may not ultimately secure
representation for reasons common to issues of
representation in all civil cases—i.e., the cost of the
representation and the strength of the case—not that
aliens are limited or prohibited from obtaining
representation by this or any other Department
regulation. See United States v. Torres-Sanchez, 68
F.3d 227, 231 (8th Cir. 1995) (‘‘Although TorresSanchez expressed some frustration over his
attempt to obtain counsel, that frustration, in our
view of the record, stemmed from his realization
that he faced the inevitable consequence of
deportation, not from a lack of opportunity to retain
counsel. In any event, the mere inability to obtain
counsel does not constitute a violation of due
process.’’). As the Department is not involved in
discussions between respondents and potential
representatives, it cannot definitively state every
reason that an alien who seeks representation may
not obtain it. Nevertheless, it can state that this rule
does not limit or restrict any alien’s ability to obtain
representation in immigration proceedings.
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(‘‘Ghajar’s assertion that she was denied
due process because she was not
granted a second continuance to allow
her attorney further time to prepare for
the deportation hearing is without merit
. . . . One full month elapsed between
the date of the show cause order and the
date on which the hearing ultimately
took place . . . . The immigration judge
did not abuse his discretion in refusing
to grant a second continuance.’’).
Further, a representative may seek an
extension of the deadline to file an
application and may seek a continuance
of any scheduled hearing. Thus, the
rule’s 15-day deadline itself does not
deprive counsel of adequate time to
prepare the application.
To reiterate, the deadline does not
affect an immigration judge’s ability to
grant a continuance for good cause, see
8 CFR 1003.39, including one to find
counsel.42 The 15-day deadline applies
to the time period in which an alien
must file an application, absent an
extension for good cause; it does not
establish a time period in which an
alien must secure counsel and thus does
not interfere with an immigration
judge’s discretion to grant a continuance
in that regard. For these reasons, the
deadline does not deprive an alien of
the opportunity to obtain counsel of his
her choosing at no expense to the
government.
Likewise, the deadline does not affect
the requirement that an immigration
judge advise the alien of (1) the right to
representation at no expense to the
government, and (2) the availability of
pro bono legal services and whether the
alien received a list of such pro bono
legal service provider, see 8 CFR
1240.10(a)(1) and (2), at the first
hearing, nor does it affect the
requirement of the immigration judge to
provide certain advisals to aliens with
an intent to apply for asylum, including
the provision of an asylum application
and a copy of the pro bono list, 8 CFR
1240.11(c)(1). In fact, the rule makes it
explicit that immigration judges must
follow those procedures in proceedings
42 The
Department recognizes that aliens should
receive a fair opportunity to secure counsel. Matter
of C–B–, 25 I&N Dec. 888 (BIA 2015). The Board has
not specifically defined what a reasonable amount
of time is for purposes of obtaining representation,
and the respondent in Matter of C–B– was given
only eight days between the issuance of an NTA
and his first hearing, in apparent contravention of
INA 239(b)(1), 8 U.S.C. 1229(b)(1). See id. at 889.
Nevertheless, Matter of C–B– cannot be interpreted
to contradict the INA, and the INA clearly indicates
that 10 days between the service of a notice to
appear and the first hearing is a sufficient amount
of time to obtain representation. See INA 239(b)(3),
8 U.S.C. 1229(b)(3). Accordingly, this rule is not in
tension with Matter of C–B– and does not deviate
from recognizing the statutory parameters for
providing time for an alien to obtain representation.
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conducted under 8 CFR 1208.2(c)(1) and
(2). 8 CFR 1208.4(d).
vii. Deadline Is Biased in Favor of the
Government
Comment: Commenters explained
that, under recently enacted rules, the
government could ‘‘file evidence
without it being contested,’’ thereby
increasing bias toward the government
in these proceedings.
Response: In response to commenters’
specific concerns with evidence filed by
the government, that concern relates to
a separate rulemaking and is thus
outside the scope of this final rule.
In regard to a general concern of bias
towards the government, which the
Department understands comments to
have implicitly referenced, the
Department disagrees that the deadline
disfavors aliens or shows bias in favor
of the government. The deadline is
intended to effectuate efficient
processing, consistent with the
regulatory directive that applications of
detained aliens be given ‘‘expedited
consideration’’ where possible, 8 CFR
1208.5(a), and is fully consistent with
longstanding authority to set deadlines
in immigration proceedings, 8 CFR
1003.31(c). Efficient processing benefits
both the government and aliens,
especially aliens who have meritorious
claims.43 Given the pending caseload
and the recent uptick in proceedings
initiated by DHS,44 the government has
an interest in timely adjudications,
consistent with applicable law and
regulations, so that it may continue to
accomplish its mission of fairly,
expeditiously, and uniformly
interpreting and administering the
nation’s immigration laws. Likewise,
detained aliens should want their
claims considered in a timely fashion in
order to receive relief or protection and
subsequent release from detention as
quickly as possible.
Finally, as discussed supra, the
Department rejects any insinuation that
its adjudicators are biased or that it is
43 To the extent commenters suggest that the rule
disadvantages aliens without meritorious claims by
making it more difficult for such aliens to delay
their removal from the United States, the
Department finds such a suggestion unavailing.
Overall, the Department finds any rationale for
encouraging or supporting the dilatory adjudication
of cases, especially cases lacking merit, both
inherently unpersuasive and wholly outweighed by
the importance of timeliness and fairness—
especially to detained aliens with meritorious
claims—in adjudicating asylum applications.
44 See EOIR, Adjudication Statistics: New Cases
and Total Completions—Historical (Oct. 13, 2020),
https://www.justice.gov/eoir/page/file/1139176/
download; see also EOIR, Adjudication Statistics:
Pending Cases, New Cases, and Total Completions
(Oct. 13, 2020), https://www.justice.gov/eoir/page/
file/1242166/download.
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engaging in this rulemaking for biased
reasons against either party in
immigration proceedings. Generalized,
ad hominem allegations of bias or
impropriety are insufficient to
‘‘overcome a presumption of honesty
and integrity in those serving as
adjudicators.’’ Withrow, 421 U.S. at 47.
Accordingly, the Department declines to
accept commenters’ unfounded
suggestions of bias. Chem. Found., Inc.,
272 U.S. at 14–15 (‘‘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.’’).
viii. Conflicts With the INA
Comment: Commenters argued that
the 15-day filing deadline conflicts with
the INA for multiple reasons. For
example, many commenters argued that
the 15-day filing deadline conflicts with
the statutory one-year bar for asylum
applications. INA 208(a)(2)(B), 8 U.S.C.
1158(a)(2)(B). Commenters further
argued that applying the 15-day filing
deadline to aliens’ applications for
withholding of removal and protection
under the CAT conflicts with the Act
because Congress did not include any
similar filing deadline requirement for
those applications. See generally INA
241(b)(3), 8 U.S.C. 1231(b)(3).
Response: As an initial point, most, if
not all, commenters on this issue failed
to recognize or address (1) the existence
of the 10-day filing deadline in 8 CFR
1208.5(b) with no noted challenges to its
alleged inconsistency with the INA; (2)
the longstanding ability of Department
adjudicators, under 8 CFR 1003.31(c)
and Matter of R–R–, 20 I&N Dec. 547,
549 (BIA 1992) (‘‘The Board has long
held that applications for benefits under
the Act are properly denied as
abandoned when the alien fails to
timely file them.’’), to set filing
deadlines, including for asylum
applications within one year of an
alien’s arrival in the United States; (3)
the affirmation of the enforcement of
such deadlines by the Board and by
Federal courts, including for deadlines
set well within one year of arrival, see,
e.g., Matter of R–C–R–, 28 I&N Dec. 74,
75–77 (BIA 2020) (affirming a decision
finding an alien’s opportunity to file for
asylum abandoned for an alien who
entered the United States on March 13,
2019, and failed to file an asylum
application by the deadline set by the
immigration judge of December 6, 2019);
Jie Zhu v. U.S. Att’y Gen., 648 F. App’x
957, 960–62 (11th Cir. 2016) (affirming
a decision finding an alien’s
opportunity to file for asylum
abandoned for an alien who entered the
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United States on June 8, 2014, and
failed to file an asylum application by
the deadline set by the immigration
judge of September 3, 2014); Rageevan
v. U.S. Att’y Gen., 151 F. App’x 751,
753–56 (11th Cir. 2005) (affirming a
decision finding an alien’s opportunity
to file for asylum abandoned for an alien
who arrived in the United States on
January 18, 2004, and failed to file a
complete asylum application by the
deadline set by the immigration judge of
May 7, 2004); cf. Alsamhouri v.
Gonzales, 484 F.3d 117, 123 (1st Cir.
2007) (‘‘The IJ was then well within his
discretion to find that, as against [the
alien’s] disregard of a known deadline,
the government’s strong interest in the
orderly and expeditious management of
immigration cases justified the denial of
a continuance.’’); (4) Federal case law
holding that a filing deadline can be
applied to an application for
withholding of removal under the INA
and for protection under the CAT, see,
e.g., Taggar v. Holder, 736 F.3d 886,
889–90 (9th Cir. 2013) (‘‘Taggar
separately argues that no deadline can
lawfully be imposed on applications for
relief under the Convention Against
Torture. This is incorrect.’’); Lakhavani
v. Mukasey, 255 F. App’x 819, 822–23
(5th Cir. 2007) (‘‘Other circuits have
held that petitioners can waive CAT or
asylum claims by failing to raise them
at the time designated by the IJ under 8
CFR 1003.31. The IJ gave Lakhavani the
opportunity to file an application for
withholding at his April 2002 hearing,
and he failed to do so. The BIA correctly
affirmed the IJ’s decision denying
Lakhavani leave to file an untimely
application for withholding of
removal.’’ (internal citations omitted));
cf. Foroglou v. Reno, 241 F.3d 111, 113
(1st Cir. 2001) (‘‘On review, Foroglou’s
main argument is that the Board’s time
limit on petitions to reopen is itself
invalid because it would result in
denying relief to deportees who might
then suffer torture, contrary to the [CAT]
and to the policies embodied in federal
legislation and regulations that
implement the [CAT] or otherwise
protect the rights of aliens. The short
answer to this argument is that Foroglou
points to nothing in the [CAT] or
legislation that precludes the United
States from setting reasonable time
limits on the assertion of claims under
the [CAT] in connection with an
ongoing proceeding or an already
effective order of deportation. Even in
criminal cases, constitutional and other
rights must be asserted in a timely
fashion.’’); and, (5) the logical and legal
ramifications of the position that an
immigration judge must wait in every
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81725
case of an alien who has been in the
United States less than one year—and
regardless of whether the alien is
detained—until one year has elapsed
from the time of an alien’s arrival in the
United States before proceeding with
the case to ensure that an alien is
provided one year in which to file for
asylum. To the extent that commenters’
concerns on this point failed to address
relevant law or to engage with the
implications of their position, especially
for detained aliens, the Department
finds them unavailing.
Under what is commonly referred to
as the ‘‘one-year bar,’’ an alien seeking
asylum must generally file his or her
application within one year of arrival in
the United States. INA 208(a)(2)(B), 8
U.S.C. 1158(a)(2)(B) (providing that an
alien may not apply for asylum ‘‘unless
the alien demonstrates by clear and
convincing evidence that the
application has been filed within 1 year
after the date of the alien’s arrival in the
United States’’); see also 8 CFR
1208.4(a)(2). An alien may be excepted
from the one-year requirement due to
‘‘changed circumstances [that]
materially affect the applicant’s
eligibility for asylum or extraordinary
circumstances related to the delay in
filing an application within’’ the oneyear period. INA 208(a)(2)(D), 8 U.S.C
1158(a)(2)(D); see also 8 CFR
1208.4(a)(4) and (5).
The ability of immigration judges to
set and enforce filing deadlines for
applications does not conflict with the
statutory one-year bar. Immigration
judges have long maintained the
authority to set and enforce time limits
on the filing of applications for asylum
and withholding of removal in the
proceedings before them. See Matter of
Jean, 17 I&N Dec. 100, 102 (BIA 1979)
(explaining that ‘‘it is well within the
authority of the immigration judge . . .
to set reasonable time limits for the
filing of written applications for
asylum’’) Similarly, immigration judges
have long maintain the authority to set
and enforce time limits on the filing of
applications for protection under the
CAT. Taggar, 736 F.3d 890 (holding that
immigration judges can set and enforce
deadlines for the filing of CAT
applications). This authority reflects
‘‘the government’s strong interest in the
orderly and expeditious management of
immigration cases.’’ Gomez-Medina v.
Holder, 687 F.3d 33, 37 (1st Cir. 2012).
Although Congress enacted a maximum
outer limit of one year from arrival for
aliens to apply for asylum in INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B),
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nothing in that provision 45 or the INA
precludes immigration judges from
setting a specific deadline for the filing
of an asylum application in immigration
proceedings in order to promote the
‘‘orderly and expeditious management
of immigration cases.’’ Gomez-Medina,
687 F.3d at 37.
Moreover, if the Department accepted
commenters’ logic, aliens in removal
proceedings would, for example, be able
to delay their proceedings for up to a
year by simply stating that they intend
to file an asylum application by some
future date. See Matter of Jean, 17 I&N
Dec. at 102 (‘‘To allow otherwise would
permit a deportable alien to avoid the
conclusion of his deportation case and
thus his departure by merely requesting
the relief but not choosing to file the
claims.’’). This is an erroneous reading
of the statute and regulations and would
eviscerate immigration judges’ ability to
manage proceedings. See, e.g., 8 CFR
1240.1(c) (providing immigration judges
the ability to ‘‘regulate the course of the
hearing’’).
Commenters’ reading of INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B)
would also raise additional issues,
45 Congress enacted the one-year bar in INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) against the
backdrop of longstanding Department regulations
and practice finding asylum applications to be
abandoned if they were not filed by a deadline
specified by an immigration judge, e.g., Matter of
R–R–, 20 I&N Dec. at 549 (‘‘The Board has long held
that applications for benefits under the Act are
properly denied as abandoned when the alien fails
to timely file them.’’), and it could have easily
phrased it in the affirmative to state that an alien
shall be afforded one year from the date of arrival
in order to apply for asylum, rather than by framing
it in the negative as an outer deadline, INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) (‘‘paragraph (1)
shall not apply to an alien unless the alien
demonstrates by clear and convincing evidence that
the application has been filed within 1 year after
the date of the alien’s arrival in the United States’’).
In other words, the statutory phrasing indicates that
an alien has, at most, one year after arrival to apply
for asylum—not at least one year, as urged by
commenters. Moreover, Congress’s phrasing against
the backdrop of longstanding agency practice is
additional evidence that the language in in INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) was not
intended to displace the Department’s ability to set
filing deadlines in immigration proceedings for
asylum applications. Cf. NLRB v. Bell Aerospace
Co. Div. of Textron, Inc., 416 U.S. 267, 275 (1974)
(‘‘[C]ongressional failure to revise or repeal the
agency’s interpretation is persuasive evidence that
the interpretation is the one intended by
Congress’’). Indeed, as discussed, infra, if
commenters were correct, then the Department’s
practice of setting filing deadlines prior to the
enactment of INA 208(a)(2)(B), 8 U.S.C.
1158(a)(2)(B) was arguably inappropriate because
the INA provided no deadline for an alien to apply
for asylum and, thus—according to the commenters’
logic—immigration judges could never have set a
deadline consistent with the statute. However, there
is no evidence, either before or after the enactment
of INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) that
Congress intended to displace an immigration
judge’s authority to set filing deadlines in order to
manage dockets efficiently.
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including potential constitutional issues
related to prolonged detention. For
example, under the commenters’ view,
a detained alien, such as one covered by
the rule, could continue to delay his or
her proceedings up to a year after arrival
without filing for asylum while
simultaneously raising arguments that
he or she should be released from
custody because the prolonged
detention has implicated constitutional
rights. See, e.g., Velasco Lopez v.
Decker, 978 F.3d 842, 852 (2d Cir. 2020)
(‘‘Detention under [INA 236(a),]
§ 1226(a) is frequently prolonged
because it continues until all
proceedings and appeals are
concluded. . . . The longer the
duration of incarceration, the greater the
deprivation.’’). Nothing in INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B),
however, contemplates its use as a basis
for either prolonging immigration
proceedings or as a wedge to obtain an
alien’s release from detention,
especially in situations where Congress
has otherwise indicated that
proceedings should be expedited. Cf.
Matter of L–N–Y, 27 I&N Dec. 755, 759
(BIA 2020) (‘‘The Immigration Courts
and the Board expedite the adjudication
of cases involving detained aliens,
recognizing the liberty interest of
detained aliens and the interest of the
Government to reasonably limit the
expense of detention.’’). Additionally, if
commenters were correct that INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B)
provides an alien with an absolute right
to file for asylum at any time within one
year after arrival in the United States,
then, by that same logic, the lack of a
filing deadline prior to the enactment of
that provision meant that previously
aliens had an absolute right to apply for
asylum at any time after arrival.
However, the Department is unaware of
any court adopting such a position, nor
is it aware of any court adopting the
view urged by commenters regarding
the relationship between INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) and
the 15-day deadline in the rule. In short,
although the Department acknowledges
and has fully considered commenters’
assertions on this point, it finds them
unavailing and unpersuasive for all of
the reasons given herein.
ix. Recommendations
Comment: Many commenters
provided a wide range of
recommendations to the Department.
For example, commenters suggested
that if EOIR imposed this short
deadline, then government should
provide aliens with attorneys and
translators to ensure that they can meet
the deadline. Some commenters
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acknowledged the Department’s concern
regarding degradation or loss of
evidence, but they suggested a deadline
longer than 15 days to balance evidencerelated concerns with concerns that
aliens need adequate time to gather
evidence.
Commenters suggested that the
Department should include an
exception to the filing deadline for
pandemic-related delays, such as filing
delays due to COVID–19.
Commenters asserted that aliens
should be granted a ‘‘per se extension’’
whenever due process rights are
threatened, such as the right to counsel,
to ensure those rights are not violated.
For example, the commenters explained
that an alien who seeks to retain counsel
should get an automatic extension on
the 15-day deadline to find
representation who can assist with the
application. The commenters predicted
that the exceptions would render the
rule unworkable.
One commenter, who generally
supported the Department’s inclusion of
the 15-day submission deadline,
recommended that the Department
provide the same 15-day deadline for
aliens in ‘‘withholding-only’’
proceedings under 8 CFR 1208.2(c)(2).
Response: The Department
acknowledges and appreciates the
commenters’ recommendations. It has
considered all of them and adopted one
as discussed below. Some
recommendations are beyond the scope
of this rulemaking and potentially
beyond the scope of rulemaking
altogether. For example, the Department
cannot simply provide aliens a right to
counsel or to personal translators in all
immigration cases by regulation due to
the significant amount of Congressional
appropriations—far in excess of EOIR’s
current budget—that would be required
to effectuate such a rule. Further, as
such a proposal was not part of the
NPRM—and implicates a potentially
massive overhaul of immigration court
procedures—it would not be
appropriate to include it in a final rule
without additional comment and study.
Regarding recommendations related
to exceptions to the deadline, the
Department believes that the rule’s
allowance of an extension of that
deadline for good cause addresses and
responds to those recommendations, as
well as the continued availability of
continuances in appropriate cases,
which is not affected by the rule. The
Department recognizes that no rule can
cover every potential scenario,
particularly in the context of hundreds
of thousands of cases with asylum
applications. Consequently, it declines
to establish any per se rules about
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whether an extension or a continuance
is warranted and expects that
immigration judges will adjudicate such
requests consistent with applicable law
and mindful of an alien’s detention
status and the direction in 8 CFR
1208.5(a) to adjudicate such cases
expeditiously.
The Department agrees with the
commenter who recommended applying
the 15-day deadline to applications for
statutory withholding of removal and
protection under the CAT for aliens in
proceedings under 8 CFR 1208.2(c)(2).
The Department sees no reason to
distinguish between aliens subject to
proceedings under 8 CFR 1208.2(c)(1)
and those subject to proceedings under
8 CFR 1208.2(c)(2), as both groups are
generally detained. Moreover, the
reasons underpinning the application
deadline for 8 CFR 1208.2(c)(1)—e.g.,
most aliens subject to the rule are
detained, that aliens with meritorious
claims have a strong incentive to obtain
relief or protection—and potentially
release from detention—as quickly as
possible, that aliens who have recently
claimed a fear of persecution or torture
will be well-situated to perfect that
claim quickly through the filing of an
application, that filing deadlines are a
well-established part of immigration
court practice and are utilized by courts
at all levels, that an even shorter filing
deadline has existed for many years for
a particular class of asylum applicants
with no noted challenges or complaints,
that delays in adjudication may risk
evidence degradation and may make it
more difficult to obtain pro bono
representation, that the deadline is not
absolute because it may be extended in
appropriate circumstances, and that the
rule does not alter longstanding rules
and practices allowing aliens to
supplement an application and to seek
to have an immigration consider latefiled evidence—apply with equal force
to proceedings under 8 CFR
1208.2(c)(2). Accordingly, in response to
the recommendation of at least one
commenter, the final rule adopts the
commenter’s suggestion and edits the
language in 8 CFR 1208.4(d)(1) to make
the 15-day deadline, with the possibility
of an extension for good cause,
applicable to aliens in proceedings
under 8 CFR 1208.2(c)(2) seeking
statutory withholding of removal or
protection under the CAT.
b. Concerns With Changes Regarding
Refiling Incomplete Applications
i. Completeness Requirement
Comment: Commenters expressed
concerns about requiring the
immigration court to reject applications
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that are incomplete or that have other
minor mistakes without providing any
exceptions. Commenters explained that
this provision would result in
applications being rejected for
technicalities or due to minor instances
of confusion, citing, for example,
hypotheticals of the immigration court
denying the application of an asylum
seeker without a middle name or
children because the corresponding
name and children boxes were
purposefully left blank.
Commenters asserted that the rule
was unnecessary and complained that
the Department did not address why the
change was necessary—specifically,
why applicants could no longer
complete their applications before the
court during a hearing.
Commenters also stated that it will be
difficult, if not impossible, for some
applicants to submit a complete
application due to a lack of command of
the English language, a lack of access to
supporting evidence, and the effects of
trauma. Other commenters noted that
the structure of the form itself increases
this difficulty because of the number of
questions and blank boxes; the
formatting of multiple boxes or lines per
questions; and a lack of clarity regarding
how to address a question that does not
apply based on answering ‘‘no’’ to the
immediately preceding question.
Commenters noted that their concerns
may be even greater in the future if DHS
moves forward with codifying proposed
amendments to the Form I–589,
Instructions, which would add to the
form’s length and general complexity.
Other commenters suggested that
inaccuracies and mistakes will be
inevitable for aliens subject to the filing
deadline imposed by the rule.
Numerous commenters compared the
rule’s requirement to what commenters
described as USCIS’s policy of rejecting
applications that fail to follow form
instructions, namely answering every
question. Commenters explained that
the USCIS policy has led to confusion
and inconsistencies, and commenters
predicted that the rule will create
similar issues before the immigration
courts.
Lastly, commenters expressed
concerns that the rule removes the
completeness determination from
immigration judges and places it on
untrained agency staff; such a shift,
commenters alleged, is inefficient and
will further strain an already
overburdened system.
Response: As an initial mater,
commenters misconstrue the changes
implemented by this rule or fail to
acknowledge what the rule does not
actually change. For instance, it does
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81727
not create a new completeness
requirement for the submission of
Forms I–589. Indeed, this requirement
already exists in the relevant
regulations. See 8 CFR 1208.3(c)(3) (‘‘An
asylum application that does not
include a response to each of the
questions contained in the Form I–589,
is unsigned, or is unaccompanied by the
required materials specified in
paragraph (a) of this section is
incomplete.’’); see also Form I–589
Instructions, Pt. 1, Sec. V. (‘‘You must
provide the specific information
requested about you and your family
and answer all the questions asked. If
any question does not apply to you or
you do not know the information
requested, answer ‘‘none,’’ ‘‘not
applicable,’’ or ‘‘unknown.’’) (emphasis
in original). This rule merely clarifies
this existing standard by including the
necessity to follow the Form I–589
instructions and other filing-related
regulations.
In response to commenters who
requested an explanation for why
applicants would no longer be allowed
to supply missing information during a
hearing before an immigration judge, the
Department notes that such a process
does not comply with these existing
regulations.46 By ensuring that
applications are complete at filing, the
parties and court can be confident that
they are proceeding with an
adjudication on the full application and,
as noted in the proposed rule, that the
application is completed as timely as
possible. Further, requiring a complete
application protects the alien by
ensuring that there are no incorrect
assumptions regarding the facts of an
alien’s claim or personal status as set
out in the application.47 Moreover,
allowing applicants to complete
applications in court is inefficient and
uses valuable court time that is better
spent adjudicating issues in dispute. See
8 CFR 1240.11(c)(3) (requiring a hearing
46 To the extent that immigration courts may have
previously failed to follow the existing regulations,
the Department reiterates that its employees are
expected to follow all applicable regulations.
47 The Department further notes that the recentlyfinalized joint rule, Procedures for Asylum and
Withholding of Removal; Credible Fear and
Reasonable Fear Review, signed by the Attorney
General and the Acting Secretary of Homeland
Security on December 2, 2020, codifies an
immigration judge’s authority to pretermit asylum
applications that fail to present a prima facie claim
for relief. See 85 FR at 36277. Even if that
codification does not go into effect, immigration
judges nevertheless possess authority to pretermit
legally deficient asylum applications in certain
instances. Id. Thus, this rule would ensure that
aliens are afforded all opportunities to correct
deficiencies in their applications in order to ensure
that their claim for relief is fully presented before
an immigration judge would consider any questions
of pretermission.
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on an asylum application only when
necessary ‘‘to resolve factual issues in
dispute’’). As noted in the proposed
rule, however, aliens may continue to
supplement or amend a previously filed
asylum application after the application
is filed, subject to an immigration
judge’s discretion. See 8 CFR 1208.4(c).
The Department also disagrees with
concerns regarding agency staff making
completeness determinations rather
than adjudicators and categorically
rejects the ugly, underlying insinuation
that its legal support employees are too
ignorant or incompetent to determine
whether an application is complete. By
requiring all questions to be answered,
there is no room for discretion as to
what responses are necessary; thus, all
applicants are subject to the same
requirements. Similarly, commenters
did not explain why the acceptance of
an incomplete application would be
either desirable or efficient, and the
Department is aware of no bases for
doing so. The completeness requirement
provides a clear, logical, and
straightforward guidepost and one that
most individuals understand. Moreover,
a completeness requirement has existed
in the regulations for many years with
no noted difficulties; to the contrary,
asylum applications have risen
significantly in recent years, even with
the requirement that the application be
complete. See, e.g., EOIR, Adjudication
Statistics: Total Asylum Applications
(Oct. 13, 2020), https://www.justice.gov/
eoir/page/file/1106366/download.
Immigration court staff receive training
on reviewing filings for sufficiency and
regularly reject deficient filings as part
of their duties.
Regarding commenters’ concerns
about the grammatical structure of the
Form I–589’s questions, the amount of
questions, or the English language
requirement, the Department notes that
this rule does not make any changes to
the Form I–589 itself. Further, to the
extent that commenters’ suggest that the
Department should amend the Form I–
589 to address such concerns, the
Department notes that although the
Form I–589 is a shared form between
EOIR and DHS, it is managed and
updated by DHS. Accordingly, altering
the form is beyond the scope of this
rulemaking and the Department’s
authority, and commenters’ concerns
about the form itself are most
appropriately directed to DHS.
Similarly, commenters’ concerns
about USCIS are beyond the scope of
this rulemaking, as USCIS is a separate
agency beyond the purview of the
Department. Further, the Department
reiterates that the completeness
requirement is not novel; rather, it has
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been an existing requirement for many
years, and the Department is unaware of
any issues, challenges, or complaints
regarding it previously. Thus,
commenters’ suggestion that an existing
regulation will lead to future confusion
at EOIR is purely speculative and
unpersuasive.
Regarding concerns about applicants’
past trauma and limited access to
evidence, and its effect on applicants’
ability to complete their applications,
the Department reiterates that the
completeness requirement has existed
for many years and that allegations of
trauma or access to evidence have not
previously been alleged to be such a
pervasive or systemic issue as to
warrant an exception to the general rule
that applications should be filled out
completely. The Department certainly
recognizes the potential existence of
trauma for aliens with meritorious
claims and associated difficulties, but
this rule, overall, helps ensure that such
aliens receive expeditious consideration
of their claims and favorable
adjudications so that they can obtain the
relief they deserve without any undue
delay. Moreover, at a minimum, every
applicant must present his or her case
for adjudication, which requires filing
an application in accordance with the
regulations and form instructions. This
includes responding to every question
on the Form I–589 and submitting any
supporting evidence.
The Department rejects the notion
that the completeness requirement is
unnecessarily complicated or confusing,
and it is unaware of any situation—and
commenters did not provide one—in
which an incomplete application is
deemed acceptable or even desirable.
Rather, the Department believes that
incomplete applications may cause
confusion and that such confusion will
be eliminated by requiring applications
to be fully completed before they are
filed and accepted for adjudication. The
Department believes requiring
completion of the Form I–589 will avoid
potentially differing interpretations
from immigration staff as to what is
‘‘complete’’ and will prevent the
possibility of uneven filing acceptance
practices at the immigration courts. In
addition, by following this requirement,
applicants can ensure that they did not
inadvertently fail to complete any fields
and can be confident that the
immigration judge is adjudicating a
complete asylum application.
Lastly, commenters’ assertions that
incomplete applications will be rejected
and result in a denial of relief are
incorrect. The return of an incomplete
application is not an adjudication on the
merits and does not automatically result
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in an immediate ‘‘denial’’ of relief.
Rather, incomplete applications will be
returned to the applicants, who will
have 30 days to complete and return the
application. This is discussed in more
detail in section II.C.4.b.iii.
ii. Removal of Deadline for Immigration
Court
Comment: Many commenters objected
to the proposed amendment at 8 CFR
1208.3(c)(3) that an alien’s incomplete
asylum application would not be
deemed complete if the immigration
court failed to return the incomplete
application within 30 days. Instead, the
immigration courts would continue to
reject incomplete applications in a
‘‘timely’’ manner but without a
maximum allowable period of time.
Commenters objected that the rule
would give the immigration courts an
indeterminate amount of time to reject
asylum applications for incompleteness.
Commenters raised concerns that the
lack of a deadline would make
proceedings less predictable and make it
more difficult for asylum seekers to
appropriately budget their savings
before being able to possibly obtain
work authorization.
Other commenters argued that the
removal of the deadline for the
immigration courts is contrary to the
Department’s justifications elsewhere in
the rule to ensure that proceedings
occur in a timely and predictable
manner and noted that shortening the
30-day time period for the rejection of
applications, rather than removing the
deadline altogether, would instead be
more efficient. Other commenters
argued that the Department did not
sufficiently justify this provision in
general.
Further, commenters stated that the
rule’s requirement that immigration
courts return incomplete asylum
applications to applicants in a ‘‘timely
fashion’’ to be vague and arbitrary and
argued that the Department should
provide some sort of definition or
specific standard. At least one
commenter expressed concern that the
standard is vague enough to allow
gamesmanship, citing a hypothetical
where the immigration judge waits to
reject an application as incomplete until
just after the alien’s one-year filing
deadline expires.
Moreover, commenters expressed
general disbelief that the courts would
return incomplete applications or alert
aliens of deficient applications in a
timely manner, noting, for example,
general processing delays by USCIS or
other agencies.
Commenters also thought it was
generally unfair that asylum seekers
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would be held to time restrictions, such
as a 30-day correction deadline, while
immigration courts are not held to a
similar standard.
Response: As an initial point, the
Department categorically rejects the
suggestion of at least one commenter
that an immigration judge would engage
in gamesmanship by purposefully
delaying the rejection of an application
solely to be able to deny it.48 As
discussed, supra, commenters’ attacks
on the integrity of immigration judges
are unfounded and have no place in this
rulemaking.
Further, comments about USCIS are
beyond the scope of this rulemaking, as
USCIS is a separate agency beyond the
purview of the Department. USCIS is
part of DHS, while EOIR is part of the
Department. See Department of
Homeland Security, Operational and
Support Components (Nov. 17, 2018),
https://www.dhs.gov/operational-andsupport-components. To the extent that
commenters have concerns about
procedures utilized by USCIS, those
concerns are most appropriately
directed to DHS.
As discussed above in section
II.C.4.b.i, all asylum applications must
be submitted ‘‘in accordance with the
instructions on the form.’’ 8 CFR
1208.3(a). The instructions, in turn,
inform applicants that they ‘‘must
provide the specific information
requested about [their] family and
answer all the questions asked.’’ See
Form I–589, Application for Asylum
and for Withholding of Removal,
Instructions, 5 (Aug. 25, 2020), https://
www.uscis.gov/sites/default/files/
document/forms/i-589instr.pdf
(emphasis in original). Further, ‘‘[a]n
asylum application that does not
include a response to each of the
questions contained in the Form I–589,
is unsigned, or is unaccompanied by the
required materials specified in [8 CFR
1208.3(a)] is incomplete.’’ 8 CFR
1208.3(c)(3). Accordingly, the
Department disagrees with commenters’
general concerns that the Department
should not remove the 30-day deadline
for the immigration court to return an
incomplete application or else have the
application deemed complete. Without
48 The Department notes, parenthetically, that the
commenter’s hypothetical is also legally inaccurate.
An alien whose asylum application is filed before
the one-year deadline but is rejected as incomplete
may be able to demonstrate extraordinary
circumstances excusing the application of the
deadline provided that the alien refiles the
application within a ‘‘reasonable period thereafter,’’
which the 30 days allowed for by this rule would
certainly be. 8 CFR 1208.4(a)(5)(v). Thus, the
commenter’s hypothetical, even if it were realistic,
would not result in the denial of the alien’s
application as untimely.
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this change, the provision at 8 CFR
1208.3(c)(3) is inconsistent with the
overarching requirement that aliens
must submit the asylum application in
accordance with the instructions on the
form—in other words, completely filled
out.
Additionally, the Department finds
that the removal of the 30-day return
period will better ensure that all asylum
claims before the immigration courts for
adjudication are fully presented for
adjudication and review. Incorrectly
deeming an incomplete application
complete does not ensure that the alien
is able to fully pursue his or her claim
as the missing information may in fact
be integral to the alien’s claim for relief,
and the Department does not want to
risk having an immigration judge
consider an incomplete application
without the relevant information.49 For
this reason, the Department further
rejects commenters’ alternative
suggestions that the Department should
instead shorten the 30-day time period
as an alternative way to increase
efficiencies.
In general, commenters failed to
explain why the default in the existing
regulation—i.e., an immigration court
accepts an incomplete application—
based on a legal fiction that an
incomplete application is deemed
complete if the immigration court fails
to return the application as incomplete
provides any benefit to the alien, DHS,
or the immigration courts. To the
contrary, an application that is
incomplete in fact—regardless of
whether it is ‘‘deemed’’ complete by
regulation—benefits neither the parties
nor the immigration judge. It risks
creating credibility issues for the
respondent based on the parts that are
incomplete even if those parts do not go
to the merits of the claim. INA
208(b)(1)(B)(iii), 8 U.S.C.
1158(b)(1)(B)(iii) (inconsistencies may
form the basis of an adverse credibility
determination without regard as to
whether they go to the heart of an
alien’s claim). It inhibits the ability of
the opposing party—and potentially the
immigration judge—to prepare for a
hearing on that application and risks
springing surprises on the opposing
party at the hearing that may require a
postponement to investigate further. It
further increases inefficiency in the
overall proceeding, particularly at the
merits hearing where the parties and the
immigration judge may have to go over
each incomplete part first to determine
49 Again, the Department reiterates that, as noted
in footnote 47 above, this provision would further
benefit aliens who may wish to prevent an
immigration judge from considering whether to
pretermit an incomplete application.
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81729
its bearing on the case before being able
to proceed to the merits of the case. In
short, commenters did not identify any
reasonable benefit provided by filing
and accepting an incomplete
application and the Department is
unaware of any; moreover, the costs
associated with such an application in
terms of the risk of an adverse
credibility finding, unfair surprise to the
opposing party, and overall inefficiency
in adjudicating the case all strongly
militate in favor of the Department’s
decision to replace the current
regulatory language with that contained
in this rule.
In addition, commenters are incorrect
regarding the effect this provision
would have on the calculation of aliens’
possible eligibility for employment
authorization.50 To reiterate, existing
regulations already provide that the
filing of an incomplete application does
not begin the timeframe by which DHS
adjudicates an application for
employment authorization based on an
asylum application, and nothing in this
rule alters that longstanding principle.
Accordingly, the Department disagrees
that an alien who submits a Form I–589
that is incomplete would begin to
accrue time towards his or her
employment authorization eligibility. In
short, aliens seeking employment
authorization have an incentive to
submit a complete asylum application
as soon as possible, and nothing in this
rule either affects that incentive or
changes the Department’s position that
the submission of an incomplete
application does not begin the
timeframe to adjudicate an employment
authorization application.
Commenters are incorrect that EOIR
will be unable to return incomplete
asylum applications in a timely manner
following the removal of the 30-day
period. To the contrary, as discussed
throughout this rule, EOIR has a
powerful incentive to ensure that
proceedings are conducted in as
expeditious manner as possible
consistent with due process. The rule’s
‘‘timely fashion’’ requirement obligates
immigration courts to act promptly in
returning incomplete asylum
applications, and the insulting
suggestion that EOIR’s employees lack
the competence or diligence to
effectuate that requirement is
50 As a general matter, the Department
emphasizes that questions of employment
authorization eligibility are adjudicated by DHS and
not by the Department. Indeed, that is why this rule
removes regulatory provisions from chapter V of 8
CFR pertaining to alien employment authorization.
Nevertheless, the Department addresses
commenters’ concerns to the extent they are
directly related to the provisions of this rule.
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unsupported. Immigration court staff
receive training on how to process
filings, and defective filings are already
subject to review and return, as
appropriate.
Finally, the Department believes that
commenters are incorrect in asserting
that the rule is unfair because asylum
seekers are being held to time
restrictions, while immigration courts
are not. As discussed, supra, the
Department has powerful incentives to
promptly return incomplete asylum
applications to ensure efficiency,
especially as the number of asylum
applications file has risen
astronomically in recent years. EOIR,
Workload and Adjudication Statistics,
Total Asylum Applications (Oct. 13,
2020), https://www.justice.gov/eoir/
page/file/1106366/download. Moreover,
the Department is held to a 180-day
adjudication deadline for asylum
applications absent exceptional
circumstances, INA 208(d)(5)(A)(iii), 8
U.S.C. 1158(d)(5)(A)(iii), and that
deadline is only triggered once an alien
files a complete asylum application.
Thus, there is no asymmetry between
asylum seekers and the immigration
courts; rather, both are held to
intertwined and mutually-reinforcing
deadlines regarding asylum
applications.
iii. 30-Day Correction Deadline
Comment: Commenters expressed
concern about the rule’s requirement
that aliens only be allowed a 30-day
period to re-file an application that is
rejected for being incomplete.
According to commenters, the
imposition of a 30-day time period is
arbitrary and too limited for aliens to
correct any errors with the application
or gather missing evidence. Commenters
asserted that by establishing such a
timeframe, the Department is
inappropriately prioritizing efficiency
over all other concerns.
Some commenters requested that the
deadline, if any, be extended to 45 days
rather than 30 days.
Commenters also worried the 30-day
correction deadline will lead to
unnecessary and inadvertent waivers of
aliens’ right to seek asylum. For
example, some commenters stated that a
failure by a mail carrier could result in
the foreclosing of relief. Other
commenters expressed general disbelief
that the government will timely return
or alert aliens of deficient applications.
Some commenters asserted that the
rule was both redundant and unduly
restrictive because immigration judges
already possess the authority to set and
extend filing deadlines without
requiring the alien to demonstrate the
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high exceptional circumstances
standard. Commenters also claimed that
applicants would not understand the
rejection from the court nor how to
remedy it.
Commenters also argued that the
Department’s assertion that a 30-day
period is sufficient for remediation of
application defects because of EAD
incentives is incorrect. Commenters
disagreed with the Department
regarding this alleged incentive due to
the combined effect of DHS’s recent
regulatory changes extending the
minimum timeline for obtaining EAD
eligibility and the Department’s
clarification in this rule regarding the
180-day timeline for the adjudication of
asylum applications.
Response: As an initial point,
commenters provided no evidence that
asylum applications are routinely filed
in such a grossly incomplete manner
with errors so great that they cannot be
corrected within one month, and the
Department is unaware of any systemic
trend of asylum applications being filed
in such a manner. Accordingly, the
Department declines to address further
commenters’ hyperbolic and unfounded
assertions regarding the scale of
deficiencies in initial asylum
applications.
The Department rejects commenters’
assertions that that 30-day deadline to
re-file an application is too short,
arbitrary, or prioritizes efficiency above
all other concerns. The Department
believes that 30 days is a reasonable
time period that balances both the time
necessary for a respondent to amend
and return a complete application and
the needs of the immigration court to
operate efficiently. The Department
notes that affected applicants must
necessarily have already attempted to
file an application, so any additional
changes should be few in number and
limited only to those fields that were
incomplete. Applicants in general must
meet their obligation to file an
application that is full and complete as
part of the applicant’s burden of proof
for relief as an initial matter and should
not be relying on this additional 30-day
time period to make significant changes
to their applications. The Department
also notes that this 30-day timeline only
applies to the Form I–589 itself and
does not prevent applicants from filing
additional supporting documentation
after the deadline, provided such filings
comply with any deadlines set by the
immigration court.
Further, the 30-day timeline is fully
consistent with existing regulatory
provisions requiring the refiling of
incomplete asylum applications ‘‘within
a reasonable period’’ after return in
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order to demonstrate extraordinary
circumstances and avoid the application
of the one-year bar. 8 CFR
1208.4(a)(5)(v). Moreover, 30-day filing
deadlines are already well-established
in immigration proceedings—e.g., a
motion to reconsider, 8 CFR
1003.23(a)(1); an appeal to the Board, 8
CFR 1003.38(b)—and the resubmission
of an asylum application is roughly
analogous to these other procedures
because it requires the correction of an
initial determination. Accordingly, the
Department finds that 30 days is an
appropriate amount of time to correct an
incomplete asylum application and
disagrees that an additional 15 days
would result in any meaningful benefit,
especially when aliens already have a
strong incentive to file quickly in order
to begin the process of attaining
eligibility for work authorization and
ultimately obtain relief or protection.
The Department rejects commenters’
assertions that the rule is both
redundant and unduly restrictive
because immigration judges already
possess the authority to set filing
deadlines and are able to extend these
deadlines without establishing
exceptional circumstances. See 8 CFR
1003.31(c). When an immigration judge
sets a filing deadline under 8 CFR
1003.31, he or she is setting a deadline
for the initial filing of applications and
supporting evidence. If an applicant
fails to comply with the deadline, the
opportunity to file such applications or
evidence is deemed waived. Id. In
contrast, this 30-day deadline focuses
on applicants who have already
attempted to file their application and
must merely fix an incomplete
application. This re-filing deadline
ensures that applications are ready for
adjudication in a reasonable time period
and serves to increase the uniformity,
fairness, and efficiency of the
adjudication process. In addition, the
Department believes that the
‘‘exceptional circumstances’’ exception
is appropriate in this context because
the 30-day deadline commences only
after the initial filing period.
Additionally, as discussed, supra, the
Department notes that commenters’
concerns that general delays, including
mail carrier mistakes, could prevent
applicants from submitting the Form I–
589 within the deadline are true for
every deadline—including other
important 30-day deadlines such as for
filing appeals to the Board, 8 CFR
1003.38(b)—and that risk is not altered
by the rule. Again, the Department
recognizes that no rule can cover every
hypothetical scenario, and the existence
of speculative assertions does not
warrant the removal of deadline
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requirements, particularly when other
similar deadlines have existed for years
without the ‘‘parade of horribles’’
posited by commenters occurring. The
Department believes—and commenters
have not meaningfully or persuasively
disputed—that 30 days is a reasonable
time period for applicants to correct
minor mistakes and re-file the
application.
As to commenters’ concerns regarding
applicants’ understanding of a rejection,
the Department notes that the rule does
not change the rejection process. EOIR
will continue to follow current practice
in rejecting documents, which includes
returning the filing with an explanation
for the rejection. See Immigration Court
Practice Manual, Ch. 3.1(d)(i), https://
www.justice.gov/eoir/page/file/1258536/
download (last revised July 2, 2020) (‘‘If
an application, motion, brief, exhibit, or
other submission is not properly filed,
it is rejected by the Immigration Court
with an explanation for the rejection.’’).
Commenters have not expressed
confusion with the existing process, and
it is well-established. As such, the
Department finds changes to these
existing processes unnecessary.
Finally, the Department disagrees
with commenters and reiterates the
discussion in the proposed rule that
aliens who seek to file asylum
applications are motivated to do so
promptly in part because of the
possibility of obtaining employment
authorization. See 85 FR at 59624.
While employment authorization
eligibility is adjudicated solely by DHS,
the Department finds that the possibility
of employment authorization is
generally a desirable benefit for asylum
seekers, and it is illogical that the
possibility of obtaining such a benefit
would not be a motivating factor to
promptly file a complete asylum
application.
The Department disagrees that DHS’s
extension of the waiting period to be
eligible to apply for asylum-based
employment authorization from 150
days to 365 days would negatively affect
this incentive, though it notes that
DHS’s extension has been temporarily
enjoined with respect to the individual
members of the Plaintiff organizations,
CASA de Maryland, Inc. (‘‘CASA’’) and
Asylum Seeker Advocacy Project
(‘‘ASAP’’). See Casa de Md. v. Wolf,—
F.Supp.3d—, 2020 WL 5500165 (D. Md.
Sept. 11, 2020) (preliminarily enjoining,
inter alia, DHS’s increase to the waiting
period for employment authorization
eligibility for individual members of
Plaintiffs CASA and ASAP). Rather, the
Department finds that the longer period
would only further increase the
incentive for aliens to start their accrual
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period for employment authorization as
quickly as possible.
The Department acknowledges
comments that the 180-day asylum
adjudication period in INA
208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii), which this rule
incorporates as discussed, infra,
counter-balances the 180-day statutory
period before which an alien who has
filed an asylum application can apply
for employment authorization under
INA 208(d)(2), 8 U.S.C. 1158(d)(2), but
notes that counter-balanced system was
established by Congress. Thus, to the
extent that commenters disagree with
the interplay of those statutory sections,
their comments are beyond the
Department’s authority in this
rulemaking and are more appropriately
addressed to Congress. The Department
disagrees that this system reduces an
alien’s incentive to file promptly for the
purposes of earning time towards
employment authorization. Many
asylum applications are not currently
adjudicated within 180 days due to
operational constraints and the size of
the pending caseload, and the presence
of exceptional circumstances causes
adjudicatory delays beyond the 180-day
mark for other cases. Moreover,
litigation has effectively forced DHS to
adjudicate employment authorization
applications within 30 days after an
alien files such an application once the
alien’s asylum application has been
pending for the applicable period of
time, Gonzalez Rosario v. USCIS, 365
F.Supp.3d 1156, 1163 (W.D. Wash.
2018), and DHS’s efforts to change its
regulations to adjust the time periods for
adjudicating such applications have also
been enjoined, Casa de Md. v. Wolf,—
F.Supp.3d—, 2020 WL 5500165 (D. Md.
Sept. 11, 2020). Consequently, aliens
retain very strong incentives to file
complete asylum applications as soon as
possible, and nothing about this rule or
the relevant statutory framework
reduces those incentives, particularly in
light of the persistent litigation on this
issue.
c. Submission of Form I–589 Fee
Comment: Many commenters broadly
criticized the existence or requirement
of a fee for asylum applications,
regardless of the dollar amount of the
fee. In addition, commenters objected to
the rule’s requirement that aliens must
submit a required filing fee in
connection with an asylum application
at the time of filing. Commenters stated
that the Department failed to provide
any reasoning to justify the imposition
of a fee or to consider the negative
impact of the fee. At least one
commenter argued that the Department
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must separately justify the inclusion of
a fee for the submission of a Form I–589
and cannot just rely on DHS’s
determinations without independent
analysis or justification.
The majority of commenters who
discussed the fee for asylum
applications raised concerns that
asylum applicants would not be able to
afford a $50 filing fee and that their
applications would be rejected as a
result.51 Accordingly, commenters
stated that the rule violates the United
States’ non-refoulement obligations.
Commenters provided a wide range of
reasons for why asylum seekers would
not be able to afford the $50 fee,
including asserting that asylum seekers
do not have the funds to pay such a fee
given that those seeking asylum are
often fleeing conflict and arriving to the
United States lacking any resources.
Moreover, commenters stated that many
asylum seekers are already severely
impoverished, a condition which
commenters claim has only been
exacerbated by COVID–19. Several
commenters were especially concerned
that asylum seekers who are either
detained or subject to the Migrant
Protection Protocols (‘‘MPP’’) would be
unable to pursue asylum applications
due to an inability to afford the fee.
Commenters explained that detained
asylum seekers are only able to earn a
trivial amount of income in detention
facilities and noted that many are
currently quarantined, and unable to
work at all, during their first 14 days in
detention due to the COVID–19
pandemic. Similarly, commenters
explained that individuals subject to the
MPP have limited access to funds.
Several commenters also urged the
Department to allow fee waivers for
asylum seekers, particularly for
individuals who are detained or subject
to MPP.
Commenters were also concerned
with the possible impact that other
pending EOIR rules 52 would have on
this provision. Commenters asserted
that because these pending rules have
not been published as final rules yet, it
is impossible for them to be able to fully
51 DHS recently established a $50 fee for Form I–
589 submitted for the purposes of applying for
asylum in most circumstances. See 85 FR at 46791.
This fee would have entered into effect on October
2, 2020, but, as noted supra, it is currently enjoined
as a result of litigation. Immigrant Legal Res. Ctr.
v. Wolf, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020)
(granting nationwide preliminary injunction barring
DHS from implementing or enforcing any part of
the rule).
52 For example, some commenters were
specifically concerned with the impact that the
Department’s pending fee rule would have on this
provision. See Executive Office for Immigration
Review Fee Review, 85 FR 11866 (Feb. 28, 2020).
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comment on this rule’s provisions
regarding the requirement to pay a fee.
Commenters further voiced concern
about the alleged difficulties that
unrepresented detained asylum seekers
would face in trying to ‘‘fee in’’ a Form
I–589 with DHS due to the possible
methods of payment. Similarly,
commenters stated that asylum seekers
in Mexico would not be able to visit a
DHS office in the United States to ‘‘fee
in’’ a Form I–589. Commenters further
noted that children, who do not have
bank accounts or their own funds,
would have unique difficulties paying a
fee to submit the I–589.
Response: Overall, commenters’
concerns related to a fee for an asylum
application were both beyond the scope
of the rulemaking and misguided or
inapposite in three principal respects.
First, few, if any, commenters
acknowledged that the INA authorizes
charging a fee for an asylum application,
provided that such a fee does not exceed
the cost of adjudicating the application.
INA 208(d)(3), 8 U.S.C. 1158(d)(3).
Thus, to the extent that commenters
oppose charging a fee for an asylum
application under any circumstance and
believe that such a fee is unauthorized
or unlawful, their comments are both
beyond the scope of this rulemaking and
are more appropriately addressed to
Congress.
Second, few, if any, commenters
acknowledged that the fee for an asylum
application is set by DHS because the
asylum application is a DHS form.
Longstanding EOIR regulations make
clear that ‘‘[t]he fees for applications
published by the Department of
Homeland Security and used in
immigration proceedings are governed
by [DHS regulations].’’ 8 CFR
1103.7(b)(4)(ii). As stated in the
proposed rule, given this longstanding
cross-referenced fee provision, the
inextricable nature of the two agencies’
asylum processes and the benefit of not
treating applicants differently for
substantially similar benefits based on
whether they file with DOJ or with DHS,
the Department did not propose to alter
that provision. See 85 FR 59698. Thus,
this rule maintains the same provision
as proposed regarding a fee for an
asylum application and does not impose
a new fee for such an application. To
the extent that commenters challenge
the propriety of DHS assessing a fee
under INA 208(d)(3), 8 U.S.C. 1158(d)(3)
for an asylum application, their
concerns are more appropriately
addressed to DHS. Third, and relatedly,
this rule does not alter the longstanding
procedures regarding how DHS forms
are treated in immigration court. 8 CFR
1103.7(b)(4)(ii). Rather, this rule merely
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adds instructions regarding the
submission of the Form I–589 fee, if
any, to a provision of EOIR’s regulations
that is topically specific to the
conditions and requirements for filing
an asylum application. Although
language already exists elsewhere in
EOIR’s regulations, see, e.g., 8 CFR
1103.7(a)(3) (‘‘The Department of
Homeland Security shall return to the
payer, at the time of payment, a receipt
for any fee paid, and shall also return to
the payer any documents, submitted
with the fee, relating to any immigration
proceeding. The fee receipt and the
application or motion shall then be
submitted to the Executive Office for
Immigration Review.’’), this amendment
is meant as an aid to the public should
a fee be enforced at a future date. Thus,
to the extent that commenters challenge
the appropriateness of the prior
promulgation of 8 CFR 1103.7(b)(4)(ii),
those concerns are also well beyond the
scope of this rulemaking.
To reiterate, as a general matter,
commenters’ broad concerns regarding
the appropriateness of requiring a fee for
asylum applications, the specific
amount of the fee, and whether to allow
for a fee waiver for the Form I–589 are
outside the scope of this rule.53 DHS
determines the fee amounts for DHSmaintained forms such as the Form I–
589, and the Department did not change
this longstanding practice in this rule.
See, e.g., 8 CFR 1103.7(b)(4)(ii) (‘‘The
fees for applications published by the
Department of Homeland Security and
used in immigration proceedings are
governed by 8 CFR 103.7.’’) and
1103.7(c) (‘‘No waiver may be granted
with respect to the fee prescribed for a
Department of Homeland Security form
or action that is identified as nonwaivable in regulations of the
Department of Homeland Security.’’).
Overall the imposition of a nonwaivable $50 fee for the Form I–589 for
the purposes of asylum is a decision
made by DHS following publication of
a proposed rule and the consideration of
the public comments received thereon.
See 84 FR 62280 (proposed rule), 85 FR
46788 (final rule). This rule does not
amend the well-established regulatory
provisions distinguishing between fees
for DHS forms and fees for EOIR forms,
and fees for DHS forms adjudicated by
53 As noted supra, the $50 asylum application fee
established by DHS is currently enjoined as the
result of litigation. Immigrant Legal Res. Ctr. v.
Wolf, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020)
(granting a nationwide preliminary injunction
barring DHS from implementing or enforcing any
part of the rule). Nevertheless, the response to
commenters’ concerns in this section discusses the
enjoined $50 fee, as discussed by commenters,
given the possibility of its future application as
litigation proceeds.
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EOIR, including the Form I–589,
continue to be set by DHS. Rather, this
rule merely clarifies when the Form I–
589 fee, as determined by DHS, must be
paid in the course of EOIR
adjudications.
Nevertheless, even though these
concerns are outside the scope of this
rulemaking, the Department disagrees
with commenters’ concerns that a $50
filing fee is inappropriate or would be
unaffordable, thus discouraging or
preventing individuals from filing
meritorious asylum claims. Cf. Ayuda,
Inc. v. Att’y Gen., 661 F. Supp. 33, 35
(D.D.C. 1987) (rejecting concern that
increased fees would limit access to
courts), aff’d sub nom. Ayuda, Inc. v.
Att’y Gen., 848 F.2d 1297 (D.C. Cir.
1988). The Department has no
evidence—and commenters did not
provide any—to dispute DHS’s
assessment that a $50 fee ‘‘could be paid
in one payment, would not require an
alien an unreasonable amount of time to
save, would generate some revenue to
offset costs, discourage frivolous filings,
and not be so high as to be unaffordable
to even an indigent alien.’’ 84 FR at
62320. Almost by definition, aliens
seeking asylum have demonstrated
access to financial resources by the very
nature of their ability to travel to the
United States, further suggesting that
$50 is not an unreasonable amount to
charge for an asylum application.54 For
54 The Department also observes that most, if not
all, aliens seeking asylum have, almost by
definition, already demonstrated access to financial
resources in order to travel to the United States,
further suggesting that $50 is not an unreasonable
amount to charge for such an application:
While there’s no fee to apply for asylum, it’s not
the case that there are no resources involved in the
process. Those migrating from Europe or Asia need
to pay for transit to the United States, as well as
for visas allowing them onto U.S. soil. (You can’t
apply for asylum unless you’re in the United
States.) Those fees start at about $160.
If you’re migrating from Central America, you
may need to pay to ensure you make it to the border
safely.
The New York Times reported last year that a
family from El Salvador paid $6,000 to smugglers
to transport them to the U.S.-Mexico border. Part of
the goal of the migrant caravans that have come
north in recent months is to provide a low-cost, safe
way for migrants to get north.
Philip Bump, Most migration to the U.S. costs
money. There’s a reason asylum doesn’t. Wash. Post
(Apr. 30, 2019) (referencing a New York Times
report about an El Salvadorean family who paid
$6,000 to smugglers to transport them to the U.S.
southern land border). Similarly, the Department
also notes that 85 percent of pending asylum
applicants in immigration proceedings, more than
507,000 cases, have representation. EOIR, Workload
and Adjudication Statistics, Current Representation
Rates, (Oct. 13, 2020), https://www.justice.gov/eoir/
page/file/1062991/download). Although some of
those approximately 507,000 cases with
representation may have obtained representation
pro bono, most did not. As of September 30, 2020,
EOIR records identified approximately 14,400
asylum cases with pro bono representation, out of
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similar reasons, the Department sees no
reason for DHS not to assess a $50 fee
for asylum applications filed by
categories of aliens cited by
commenters: Aliens in detention, aliens
in removal proceedings who were
returned to Mexico pursuant to the
MPP, and children.55 The Department
also notes that unverified generalized
statements and anecdotal reports about
asylum seekers’ financial status do not
provide information about actual
hardship, particularly when they do not
also address or account for how the
alien obtained financial resources to
make the journey to the United States in
the first instance.
The Department further notes that an
application for statutory withholding of
removal under section 241 of the Act, 8
U.S.C. 1231, or protection under the
regulations implementing the CAT does
not require a fee. See 8 CFR 106.2(a)(20)
(establishing a $50 fee when the Form
I–589 is submitted ‘‘[f]or filing an
application for asylum status’’).
Accordingly, commenters are incorrect
that the rule violates the United States’
non-refoulement obligations set forth in
the 1951 Refugee Convention, the 1967
Protocol, and the CAT. 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, 856 F.3d at 257 & n.16; RamirezMejia, 813 F.3d at 241; Maldonado, 786
F.3d at 1162 (explaining that Article 3
of the CAT, which sets out the nonrefoulement obligations of signatories,
was implemented in the United States
by FARRA (Pub. L. 105–277, sec.
2242(b), 112 Stat. 2681, 2631–822) and
its implementing regulations); see also
Cardoza-Fonseca, 480 U.S. at 429, 441
(‘‘[Withholding of removal] corresponds
to Article 33.1 of the Convention. . . .
[Asylum] by contrast, is a discretionary
mechanism which gives the Attorney
General the authority to grant the
broader relief of asylum to refugees. As
such, it does not correspond to Article
33 of the Convention, but instead
corresponds to Article 34.’’) (emphasis
in original).
Regarding commenters concerns that
the Department must separately justify
the establishment of an asylum
over 507,000 asylum cases with representation
overall. The ability of most aliens applying for
asylum to retain representation at cost further
suggests that a $50 fee is not unreasonable.
55 As mentioned in note 18, supra, DHS has
determined to exempt UAC in removal proceedings
from the $50 fee.
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application fee, the Department
reiterates that it is not altering its
longstanding treatment of fees related to
DHS applications. 8 CFR
1103.7(b)(4)(ii). DHS has assessed a fee
for most asylum applications, and
concerns about the justifications for that
fee are beyond the scope of this
rulemaking.
Regarding commenters’ concerns
about the interplay between this rule
and other rules proposed by the
Department, none of the Department’s
pending rules would impact this
provision. As noted in other rules, and
as discussed above, DHS determines
whether or not to impose filing fees for
asylum applications. None of the
Department’s pending rules, including
its fee review, propose to change this
regulatory scheme. As such,
commenters’ concerns over not being
able to fully comment on this provision
without seeing certain pending rules
published as final rules are
unpersuasive.
In addition, regarding commenters’
concerns about the ability of aliens to
pay the $50 fee given USCIS’s available
methods of payment and commenters’
concerns regarding the supposed
difficulties that detained unrepresented
asylum seekers and aliens subject to
MPP will face in paying the fee,
although such concerns are far beyond
the scope of this rulemaking and more
appropriately addressed to DHS, the
Department does note that aliens who
submit payments to DHS for forms,
applications, or motions for EOIR
adjudications may submit a wide range
of payment methods to USCIS,
including personal check, cashier’s
check, certified bank check, bank
international money order, or foreign
draft drawn on a financial institution in
the United States and payable to the
‘‘Department of Homeland Security’’ in
United States currency. In addition,
aliens may have a third party provide
the payment on their behalf.
Nevertheless, as with the determination
of whether to charge a fee for the Form
I–589, the available methods of payment
are determined by USCIS as the
payment processing entity for the
immigration courts. See 8 CFR
103.7(a)(1), 1103.7(a)(3).56
d. Impact on Discrete Populations 57
Comment: Commenters raised a broad
range of concerns with respect to the
rule’s impact on various populations
that commenters have identified as
uniquely vulnerable groups, including,
inter alia, alleged victims of genderbased persecution, detained individuals,
familyasylum applicants, indigenous
language speakers or non-English
speakers, children, teenagers in custody,
individuals with disabilities, LGBTQ
individuals, and individuals with
mental-competency issues. Commenters
were primarily concerned with the
ability of these categories of aliens to
meet the 15-day filing deadline or 30day re-filing correction deadlines.
Commenters expressed concerns that
members of such groups need more time
than other applicants to prepare,
submit, and present their cases in
support of their applications for a
variety of reasons. For example,
commenters stated that due to severe
trauma or post-traumatic stress, some of
these populations might need additional
time and the assistance of medical and
mental health services to articulate their
claims. Additionally, commenters
stated, certain populations might face
unique difficulties obtaining
corroborative evidence to support their
claims; for example, commenters stated
that victims of gender-based violence
may have been prevented by their
traffickers or perpetrators from owning
items that might serve as evidence.
Commenters also asserted that some
populations, such as children, might
need additional time to familiarize
themselves with processes and become
comfortable with their advocates.
Commenters asserted that some
groups faced other unique challenges in
preparing, submitting, and presenting
their applications that may require
additional time. For example, applicants
submitting family-based claims might
need child care during proceedings
because they may not want to speak
about the harm they have suffered in
front of their children. Additionally,
commenters stated, indigenous-language
speakers may be unable to find an
interpreter to translate the Form I–589
or documents for submission within the
regulatory deadlines. Commenters
anecdotally asserted that some
indigenous-language speakers did not
receive credible fear interviews before
56 The Department further notes that USCIS
accepts electronic payments in certain contexts, and
the Department expects that the availability of
electronic payment methods will continue to
expand over time. USCIS, Forms Available to File
Online (June 11, 2020), https://www.uscis.gov/fileonline/forms-available-to-file-online.
57 The Department notes that many of the
concerns commenters raised with respect to the
effect that this rule would have on discrete
populations are similar to concerns that
commenters also raised with respect to asylum
applicants, generally. To the extent there is overlap,
the Department reiterates the discussion above in
section II.C.2.
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being placed into proceedings because
the government was unable to find an
interpreter within the requisite period of
time.
Commenters also asserted that some
applicants, such as children or those
with mental competency issues, need or
require counsel to assist with
preparation, submission, and
presentation of their claims. For
example, commenters explained that the
deadline would present challenges for
counsel working with children because
their age, development, dependence on
adults, particular vulnerabilities, and
experienced traumas (if any) typically
increase the time necessary to develop
and corroborate their asylum claims.
Further, commenters explained that
children in government custody would
have a particularly difficult time
discussing the persecution they faced.
Accordingly, commenters stated that
immigration judges should have
discretion to set and extend deadlines
pursuant to children’s specific and
unique needs.
Additionally, commenters asserted
that recent changes to the law, such as
Matter of A–B–, 27 I&N Dec. 316 (A.G.
2018), have rendered certain claims
uniquely complex. Some commenters
asserted that Congress had recognized a
specific obligation to treat children
humanely and fairly, and EOIR had
recognized that cases involving children
could be uniquely complex.
Commenters asserted that some
uniquely situated applicants, such as
detained individuals and children,
already face logistical barriers to access
to counsel and legal information.
Accordingly, commenters asserted, such
applicants may be especially
disadvantaged by the rule to the extent
that it would limit or further exacerbate
their already limited access to counsel.
Furthermore, with respect to
individuals with mental competency
issues, some commenters expressed
concerns that issues of incompetence
might not be identified until an
individual had made several court
appearances. One organization
anecdotally stated that it had accepted
National Qualified Representative
Program (NQRP) cases, see EOIR,
National Qualified Representative
Program (Feb. 18, 2020) (hereinafter
‘‘EOIR, NQRP’’), available at https://
www.justice.gov/eoir/national-qualifiedrepresentative-program-nqrp, in which
detained clients had appeared in court
for months before anyone raised the
issue of incompetence. Commenters also
generally asserted that the 15-day
deadline for submitting applications
might would proceed in violation of
their rights such rights would be
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violated. Lastly, commenters alleged
that the rule would violate the
Rehabilitation Act of 1973. See 29
U.S.C. 794(a).
Response: The Department reiterates
its response to similar comments, supra,
and adds the following further response.
In general, commenters on this point
misapprehended the rule; provided
speculative hypothetical generalizations
that do not account for the case-by-case,
individualized decision-making
associated with adjudicating asylum
applications; and made assertions
rooted in the rule’s failure to align with
the commenters’ policy preferences,
rather than the identification of specific
legal deficiencies or other factors the
Department should consider. See Home
Box Office, 567 F.2d at 35 n.58 (‘‘In
determining what points are significant,
the ‘arbitrary and capricious’ standard
of review must be kept in mind. Thus
only comments which, if true, raise
points relevant to the agency’s decision
and which, if adopted, would require a
change in an agency’s proposed rule
cast doubt on the reasonableness of a
position taken by the agency. Moreover,
comments which themselves are purely
speculative and do not disclose the
factual or policy basis on which they
rest require no response. There must be
some basis for thinking a position taken
in opposition to the agency is true.’’).
Asylum seekers come from a wide
range of backgrounds and personal
circumstances, and the Department
recognizes that no rule can account for
the backgrounds and circumstances of
the hundreds of thousands of aliens
who seek asylum. Nevertheless, the
Department disagrees that the sorts of
speculative challenges raised by the
commenters are sufficient to outweigh
the benefits obtained from this rule’s
implementation, including benefits that
would inure to those with meritorious
asylum claims. Further, in a vacuum,
the Department has difficulty
responding to commenters’ generalized
statements about various populations,
trauma experienced by those
populations, and other asserted
difficulties because asylum applications
are adjudicated based on their specific
facts, not on generalized speculative
assertions.58 The Department believes
58 For example, commenters’ concerns about
mental illness, trauma, and developmental
challenges may certainly fall within the rule’s goodcause exception for the filing deadline or within the
exceptional circumstances exception to the
statutory 180-day adjudication deadline in
particular cases if those concerns are credible.
However, the Department cannot make a blanket
determination based solely on generalizations
without context that such situations will always
constitute exceptions because each case is
considered on its own merits. Moreover, the
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that the timelines set are generally
appropriate for the majority of cases for
the reasons discussed above, and that
determinations about extending such
deadlines are more appropriately made
on a case-by-case basis rather than
providing a categorical exception for
certain types of applicants, as
commenters suggest.
Neither the 15-day filing deadline nor
the 30-day correction deadline imposes
one-size-fits-all deadlines. In cases
where applicants’ unique circumstances
necessitate additional time to prepare,
submit, or present their asylum
applications, the Department reiterates
that the immigration judge is authorized
to consider extending these timelines on
a case-by-case basis. See 8 CFR
1208.3(c)(3) (stating that failure to
correct deficiencies within 30 days will
result in abandonment of an application
and waiver of the opportunity to file
such application ‘‘absent exceptional
circumstances as defined in
§ 1003.10(b)’’); 8 CFR 1208.4(d) (stating,
with respect to the 15-day filing
deadline, that ‘‘[t]he immigration judge
may extend the deadline for good
cause.’’). In general, determining
whether ‘‘good cause’’ or ‘‘exceptional
circumstances’’ exist would likely
include consideration of the factors that
commenters asserted arise with respect
to the broad types of asylum applicants
identified by the commenters.
In addition, the Department notes that
an immigration judge’s discretionary
determination with respect to whether
an alien merits either an extension of
the 15-day deadline or demonstrated
exceptional circumstances to extend the
30-day refiling deadline may be
appealed to the Board in cases where
the issue has been properly preserved
for appeal. Accordingly, further review
and protection is available for these
classes of applicants.
In short, the Department
acknowledges commenters’ concerns
about discrete groups of individuals and
has fully considered them; however, the
rule does not single out any discretelylabeled groups, nor does it preclude the
groups identified by commenters from
pursuing their claims. To the extent that
aliens within those groups have
meritorious claims, the rule will, in fact,
ensure that those claims are adjudicated
expeditiously, especially for aliens in
detention. The rule also provides
sufficient safeguards in situations in
which individuals may need additional
time, and commenters’ unfounded
credibility of such assertions will always be at issue
because they provide an exception to the general
rule, and it is difficult, if not impossible, for the
Department to make generalized credibility
determinations in a rulemaking.
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assertions to the contrary are not
persuasive. The rule is consistent with
due process, aids in the protection of
the groups identified, and provides
benefits that far outweigh any concrete
concerns raised by commenters.
With respect to commenter concerns
regarding mental competency issues, the
Department notes that there is existing
agency protocol for ensuring that
proceedings involving such individuals
are fair, including forensic competency
evaluations and implementing
safeguards, where appropriate. See
Matter of M–A–M–, 25 I&N Dec. 474,
474, 477, 480–81 (BIA 2011); EOIR,
NQRP. The Department acknowledges,
as commenters stated, that mental
competency issues might arise after
numerous hearings. However, as case
law has always considered, mental
competency ‘‘is not a static condition.’’
Matter of M–A–M–, 25 I&N Dec. at 480.
‘‘It varies in degree. It can vary over
time. It interferes with an individual’s
functioning at different times in
different ways.’’ Id. (quotation omitted).
Thus, immigration judges must
‘‘consider indicia of incompetency
throughout the course of proceedings to
determine whether an alien’s condition
has deteriorated or, on the other hand,
whether competency has been
restored.’’ Id. The Department notes that
‘‘neither party bears a formal burden of
proof to establish the respondent’s
mental competency or incompetency.’’
Matter of J–S–S–, 26 I&N Dec. 679, 681
(BIA 2015). Thus, if an immigration
judge observes indicia of incompetency,
regardless of whether a party argues that
such indicia are present, an immigration
judge must make a competency
determination and implement the
appropriate safeguards, where
necessary. Id. at 680, 681 (citing Matter
of M–A–M–, 25 I&N Dec. at 474, 477,
480–81).
Although an immigration judge must
make a competency determination when
indicia of competency are present, this
does not mean that an immigration
judge should delay proceedings
indefinitely simply because indicia
might arise later in any particular case.
The Department believes that the
existing protocols, in conjunction with
the immigration judge’s authority to
extend filing deadlines in appropriate
situations and the various exceptions
provided by the rule, are sufficient to
ensure fairness towards applicants with
mental competency issues. Moreover,
the Department disagrees with
commenter concerns that this rule
would violate the Rehabilitation Act of
1973. See 29 U.S.C. 794(a). This rule is
broadly applicable to all applicants,
does not impose any particular
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requirements on applicants with
disabilities, does not prevent applicants
with disabilities from participating in
immigration proceedings, and provides
that immigration judges may extend
regulatory timelines in appropriate
situations.
e. Impact on Pro Se Aliens
Comment: Commenters were
concerned that the filing deadlines
would disproportionately and
detrimentally affect pro se aliens and
interfere with the ability of those aliens
to seek and obtain counsel. As a result,
commenters alleged that the Department
was engaging in a pattern or practice of
discrimination against a discrete and
insular minority comprised of current
and future pro se asylum applicants.
The commenters alleged that the
deadline deprived pro se asylum seekers
equal protection under the law and
therefore violated the Fifth
Amendment’s equal protection
guarantee. See U.S. Const. amend. V.
Further, for pro se aliens, commenters
were concerned that the rule’s deadlines
were too short for pro se aliens to
complete the complex application on
their own, particularly considering
language barriers, trauma, education
levels, and lack of familiarity or
understanding of complex immigration
laws.
Response: The Department reiterates
its response to similar comments, supra,
and adds the following further response.
In general, commenters on this point
again misapprehended the rule;
provided speculative, hypothetical
generalizations that do not account for
the case-by-case and individualized
decision-making used to adjudicate
asylum applications; and, made
assertions rooted in the rule’s failure to
align with the commenters’ policy
preferences rather than the
identification of specific legal
deficiencies or other factors the
Department should consider.
The rule does not harm pro se aliens
and does not impact the availability of
pro bono representation. To the
contrary, expeditious consideration of
the asylum applications that detained
aliens file may increase pro bono
representation. See, e.g., HRF Report
supra. To the extent that commenters
posited hypothetical scenarios about
particular characteristics of pro se
aliens, the Department notes that if such
scenarios are reflected by actual
applicants, then the immigration judge
can consider whether any factors
referenced by the commenters warrant
an extension of the filing deadline.
Given the limited available avenues
for relief or protection; the common goal
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of providing relief or protection to
aliens with meritorious claims as
quickly as possible, especially those
who are detained; and the risk of loss or
degradation of evidence with the
passing of time, the Department believes
the benefits of the rule, on balance, far
outweigh the speculative concerns
raised by commenters.
The Department further notes that
nothing in the rule prohibits nonprofit
organizations, pro bono groups, or any
other class of representatives from
taking an alien’s case at a later point in
the proceedings. An alien who obtains
counsel may also choose a
representative at any point in the
proceedings, including after filing an
application. Thus, pro se aliens have
more opportunities to obtain assistance
that many commenters suggested.
The Department also notes that 85%
of aliens with pending asylum cases
have representation. EOIR, Adjudication
Statistics: Current Representation Rates
(Oct. 13, 2020), available at https://
www.justice.gov/eoir//file/1062991/
download. For those who do not, there
are multiple avenues they may pursue
to obtain representation. See EOIR, Find
Legal Representation (Oct. 1, 2020),
available at https://www.justice.gov/
eoir/find-legal-representation.59
Nevertheless, the Department has fully
considered the possible impacts of this
rule on the relatively small pro se
population of aliens who seek asylum
before EOIR. However, the rule does not
single such aliens out for particular
treatment under EOIR’s procedures.
Moreover, immigration court procedures
are generally not excused for pro se
respondents, just as they are not
excused generally for pro se civil
litigants. See, e.g., McNeil v. United
States, 508 U.S. 106, 113 (1993) (‘‘[W]e
have never suggested that procedural
rules in ordinary civil litigation should
be interpreted so as to excuse mistakes
by those who proceed without
counsel.’’); Edwards v. INS, 59 F.3d 5,
8–9 (2d Cir. 1995) (rejecting a pro se
alien litigant’s arguments for being
excused from Federal court procedural
59 Although the Department acknowledges that
nonprofit organizations and pro bono volunteers,
like all legal representatives, may face unforeseen
challenges confronting new rules or procedures, the
Department is confident that such representatives
will be able to handle such changes, just as they do
in any other court system, and will continue to be
able to provide assistance and resources to aliens
in proceedings before EOIR. Moreover, as discussed
throughout this rule, most of this rule’s provisions
are simply codifications of longstanding principles
that have been applicable to practitioners for years,
including the ability of an immigration judge to
establish and extend filing deadlines, to introduce
evidence, and to ensure asylum applications are
adjudicated consistent with regulatory and statutory
authorities.
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requirements due to his pro se status).
Although the Department acknowledges
the challenges faced by pro se litigants
and recommends that all aliens obtain
representation, nothing in the rule
singles out pro se aliens or has the effect
of exacerbating their situation.60
Further, there is at least a rational
basis for the rule’s deadline.
Establishing a deadline, as explained in
85 FR at 59694, reduces the risk of
delayed filing, which, in turn, reduces
the risk of delayed grants of protection
or relief for meritorious claims and
reduces the risk of degradation or loss
of evidence over time. Cf. DeSousa v.
Reno, 190 F.3d 175, 184 (3d Cir. 1999)
(‘‘[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.’’) (citing Francis
v. Immigration and Naturalization
Serv., 532 F.2d 268, 272 (2d Cir. 1976)
(internal citations omitted). It is also
consistent with a similar existing
deadline in 8 CFR 1208.5(b), a
regulatory directive in 8 CFR 1208.5(a)
to adjudicate cases of detained aliens
expeditiously, and the longstanding
authority in 8 CFR 1003.31(c) of
immigration judges to set deadlines. In
short, the rule does not violate due
process for pro se aliens, just as it does
not violate due process for any category
of aliens.
Additionally, the Department
disagrees that pro se aliens cannot meet
the 15-day filing deadline or cure any
deficiencies in their applications within
30 days. The Form I–589 spans eight
pages—plus an additional page for
signatures and supplemental pages, as
needed—and DHS estimates the time
necessary to review the instructions and
complete and submit the form is 12
hours. See U.S. Citizenship and
Immigration Services, Form I–589,
Application for Asylum and for
Withholding of Removal, OMB No.
1615–0067 (Aug. 25, 2020), available at
https://www.uscis.gov/sites/default/
60 There is no evidence that the shorter filing
deadline in 8 CFR 1208.5(b) has discriminated
against pro se aliens in any way, and commenters
did not allege that it had. Further, even if that
deadline had a discriminatory impact, as
commenters alleged the rule will, it would not—
and the rule does not—violate the Fifth
Amendment’s equal protection guarantee, see U.S.
Const. amend. V., because it does not burden
fundamental rights. See Heller v. Doe, 509 U.S. 312,
319 (1993) (affording a strong presumption of
validity to a classification that does not involve
fundamental rights or proceedings along suspect
lines).
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files/document/forms/i-589.pdf; U.S.
Citizenship and Immigration Services,
Form I–589, Application for Asylum and
for Withholding of Removal,
Instructions, OMB No. 1615–0067 (Aug.
25, 2020), available at https://
www.uscis.gov/sites/default/files//
forms/i-589instr.pdf. Instructions to
Form I–589 are available and written to
assist applicants with or without
representation. See id.; see also note 26,
supra (discussing the wide availability
of information on applying for asylum,
including information in multiple
languages).
Further, apart from seeking
representation, many pro se aliens may
access various resources to assist them
in completing this form. Within the
Department’s Office of Legal Access
Programs, a wide variety of self-help
materials and legal centers, workshops,
and orientations are available to assist
aliens if they so choose. See Executive
Office for Immigration Review, Office of
Legal Access Programs (Feb. 19, 2020),
available at https://www.justice.gov/
eoir/office-of-legal-access-programs.
Considering that aliens in asylum-andwithholding-only proceedings are only
eligible for relief available through Form
I–589, see 8 CFR 1208.2(c)(3)(i), the
Department believes that the 15-day
deadline is sufficient to complete the
Form I–589 and that 30 days is
sufficient to correct any deficiencies,
including for a pro se alien. The
existence of the possibility of an
extension of those deadlines further
provides a safety net for pro se aliens to
ensure that their applications are
completed in a timely and accurate
manner.
5. Concerns With Form I–589
Procedures
a. Supplementing the Record
i. Evidence From Non-Governmental
Sources
Comment: Commenters raised
concerns with the rule’s clarification on
the evidentiary standards for the
admission of non-governmental source
evidence. Commenters claimed that the
rule would create a double standard by
treating governmental sources as
automatically reliable while requiring
foreign government and nongovernmental sources to meet a
‘‘credible and probative’’ standard.
Commenters stated that this was
particularly problematic because United
States governmental sources are subject
to political pressures and often do not
present accurate or complete depictions
of conditions in other countries. One
commenter claimed that this would
violate the Refugee Act, which aimed to
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remove political or foreign policy
influence from asylum determinations.
Commenters were also concerned that
the ‘‘credible and probative’’ standard
was a new, higher standard than the
existing probative standard for
evidentiary submissions and that the
term ‘‘credible’’ only exists in asylum
law as it relates to oral testimony.
Commenters further claimed that
requiring a ‘‘credible and probative’’
standard would limit or exclude the
evidence that an alien could submit,
which would in turn violate an alien’s
due process right to present evidence.
Moreover, commenters expressed
concern that the ‘‘credible and probative
standard’’ could be used in conjunction
with a separate proposed rulemaking
which would establish that evidence
promoting cultural stereotypes was
inadmissible, to inappropriately exclude
evidence that would support an
applicant’s claim. See 85 FR at 36264.
Specifically, commenters expressed
concern that immigration judges would
mischaracterize the ‘‘quality’’ of
submitted evidence in order to bar
admission of evidence that might
support an applicant’s claim and, under
the other proposed rule, refuse to
submit evidence based on the substance.
Commenters suggested that it would be
inappropriate for immigration judges to
bar the admission of evidence that
might in substance support an
applicant’s claim based on the ‘‘quality
of the messenger.’’ Additionally,
commenters stated that the standard
would minimize the value of nongovernmental sources such as nongovernmental organization reports,
which commenters claimed were very
reliable, and would thereby diminish
the credibility of such sources.
Lastly, commenters requested the
Department provide a definition of
‘‘credible and probative,’’ claiming that
the standard was unclear and could fail
a vagueness challenge.
Response: As an initial point,
commenters did not generally explain
why it would be appropriate for an
immigration judge to consider evidence
from non-credible source or that is not
probative, and the Department is aware
of no such reason. Evidence from noncredible sources of that is not probative
provides no assistance to an adjudicator
almost by definition, and the
Department is unaware of any
justification for allowing the
consideration of such evidence.
Similarly, commenters’ assertions that
immigration judges would
mischaracterize evidence rest on the
tacit suggestion that immigration judges
are incompetent or unethical and are
either incapable or unwilling to adhere
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to applicable law. As discussed
elsewhere in this final rule, that
assertion is unsupported and appears to
stem from the personal biases or policy
preferences of commenters, rather than
any objective evaluation of immigration
judges. Chem. Found., Inc., 272 U.S. at
14–15 (‘‘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.’’).
Moreover, such unsupported and
tendentious assertions provide no basis
for the Department to alter the NPRM.
Further, this rule does not change the
longstanding standards for the
admission of evidence in immigration
proceedings—whether the evidence is
probative and its admission is
fundamentally fair. See Matter of Y–S–
L–C–, 26 I&N Dec. 688, 690 (BIA 2015)
(explaining that ‘‘the test for admitting
evidence is whether it is probative and
its admission is fundamentally fair’’);
Nyama v. Ashcroft, 357 F.3d 812, 816
(8th Cir. 2004) (stating that the
‘‘traditional rules of evidence do not
apply to immigration proceedings’’ and
that the ‘‘sole test for admission of
evidence is whether the evidence is
probative and its admission is
fundamentally fair’’) (quoting Espinoza
v. INS, 45 F.3d 308, 310 (9th Cir. 1995)).
Once admitted, the immigration judge
must then weigh the evidence to
determine whether the burden of proof
has been met. See, e.g., Le Bin Zhu v.
Holder, 622 F.3d 87, 92 (1st Cir. 2010)
(affording less evidentiary weight to an
unauthenticated foreign local
government notice); Song Wang v.
Keisler, 505 F.3d 615, 622 (7th Cir.
2007) (giving ‘‘little weight’’ to an
unauthenticated foreign certificate). In
weighing the evidence, the immigration
judge may look to the credibility of the
source. The rule simply clarifies that
foreign government and nongovernmental 61 sources are not
automatically presumed credible, and
evidence from these sources is not
presumed probative, as the prior
regulatory language may have
unintentionally implied.
Contrary to commenters’ claims, this
clarification has no effect on the ability
of aliens to present evidence. See, e.g.,
Colmenar v. INS, 210 F.3d 967, 971 (9th
61 The Department notes that, consistent with
common understanding and typical linguistic
usage, an alien testifying in support of his or her
own application is not considered a ‘‘nongovernmental source.’’ Whether an alien’s
testimony in support of his or her own application
is credible will continue to be assessed based on
applicable law. See, e.g., INA 208(b)(1)(B)(iii), 8
U.S.C. 1158(b)(1)(B)(iii) (outlining the bases for the
credibility determination of an asylum applicant).
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Cir. 2000) (finding a due process
violation when the alien was not
provided a reasonable opportunity to
present evidence). Instead, immigration
judges will continue to review all
evidence presented and determine
admissibility and weight accordingly.
The rule is also not intended to make
any implicit negative judgments on the
general credibility of foreign
government or non-governmental
sources and does not change the
immigration judges’ process of weighing
evidence in applying burdens of proof.
See, e.g., 8 CFR 1240.8 (burdens of proof
in removal proceedings).
Moreover, the rule does not mean that
evidence from governmental sources is
always admissible, as such evidence
must still be relevant or probative. For
example, in an asylum case involving an
alien from Guatemala, the State
Department report on conditions in
Australia would not be probative of
conditions in Guatemala. In general,
however, State Department reports are
considered ‘‘highly probative evidence
and are usually the best source of
information on conditions in foreign
nations.’’ Matter of H–L–H– & Z–Y–Z–,
25 I&N Dec. 209, 213 (BIA 2010)
(abrogated on other grounds by Hui Lin
Huang v. Holder, 677 F.3d 130 (2d Cir.
2012)); see also Sowe v. Mukasey, 538
F.3d 1281, 1285 (9th Cir. 2008) (‘‘U.S.
Department of State country reports are
the ‘most appropriate and perhaps the
best resource for information on
political situations in foreign nations.’ ’’)
(quoting Kazlauskas v. INS, 46 F.3d 902,
906 (9th Cir. 1995)); accord 8 CFR
1208.11 (expressly allowing
immigration judges to seek comments
from the State Department regarding
asylum applications). In particular,
State Department reports offer both a
country-wide perspective and localized
comparisons that are particularly
relevant for internal relocation
determinations, 8 CFR
1208.13(b)(1)(i)(B), (2)(ii), and are often
missing from reports from other sources.
See, e.g., Department of State, Bureau of
Conflict and Stabilization Operations,
Northern Triangle Country Conditions:
Ranking the Highest and Lowest Areas
of Reported Homicides, Disappearances,
and Extortion (May 2019), https://
www.justice.gov/eoir/page/file/1180706/
download (discussing rates of
homicides, disappearances, and
extortion at a municipality level in
countries with high rates of asylum
applications).
Despite commenters’ concerns, once
admitted as evidence, State Department
reports warrant particular consideration
because of their credible source: The
‘‘collective expertise and experience of
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81737
the Department of State, which has
diplomatic and consular representatives
throughout the world.’’ Matter of H–L–
H– & Z–Y–Z–, 25 I&N Dec. at 213. The
same logic applies to documents from
other United States governmental
agencies within their areas of expertise.
Based on this assessment, the
Department believes that immigration
judges should continue to rely on
United States governmental sources, if
relevant or probative, and should
generally consider them as evidence
when deciding an asylum case. The
Department notes that the rule does not
prevent asylum applicants from
submitting additional probative
evidence from credible sources if they
believe that evidence from a United
States governmental source has not
provided a complete account of
conditions in a foreign country or from
arguing why, in a particular case, an
immigration judge should afford less
weight to any particular evidence,
including evidence from government
sources. Similarly, the rule does not
prevent the immigration judge from
weighing such information together in
making the judge’s final determination
on whether the parties have met their
burden of proof.
The Department disagrees with
commenters that this rule could be used
in conjunction with an earlier proposed
rule which, if finalized, would bar
admission of pernicious, unfounded
evidence that is predicated upon
harmful stereotypes from being entered
into the record, to improperly reject
evidence that may support an
applicant’s claim. 85 FR at 6282; cf.
Matter of A–B–, 27 I&N Dec. at 336 n.
9 (‘‘On this point, I note that conclusory
assertions of countrywide negative
cultural stereotypes, such as A–R–C–G–
’s broad charge that Guatemala has a
‘culture of machismo and family
violence’ based on an unsourced partial
quotation from a news article eight years
earlier, neither contribute to an analysis
of the particularity requirement nor
constitute appropriate evidence to
support such asylum determinations.’’).
Both rules are ultimately about barring
admission of baseless, incredible, and
non-probative evidence, whether
because of the source or the content of
the evidence. To the extent that
commenters suggest that immigration
judges would choose to bar evidence
that does not support a particular
narrative, i.e., suggesting that
immigration judges are partial to a
particular narrative or disposition, the
Department strongly disagrees. As
discussed at length, infra, section
II.C.5.a.ii, EOIR’s immigration judges are
impartial adjudicators, and are not
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expected to predetermine the
admissibility of evidence based upon
whether it supports a particular
narrative.
Finally, the Department does not
believe that the credible and probative
standards require any additional
definitional language, as these have
been part of the evidentiary standards
for decades without apparent confusion.
See, e.g., Trias-Hernandez v. INS, 528
F.2d 366, 369–70 (9th Cir. 1975)
(applying the probative evidence test).
ii. Authority of the Immigration Judge
To Supplement the Record
Comment: Commenters expressed
concerns that the rule would undermine
the immigration judge’s neutrality or
exacerbate an existing lack of neutrality.
Specifically, commenters stated that the
rule would improperly expand an
immigration judge’s power and that
allowing immigration judges to
introduce evidence into the record
conflicts with their role as neutral
arbiters of the law. Other commenters
complained that immigration judges are
already biased, citing some immigration
judges’ previous employment history
with DHS, decisions from the Federal
courts that acknowledge biased
decisions from immigration judges, and
records alleging EOIR misconduct.
Commenters stated that allowing
immigration judges to submit their own
evidence would put them in the posture
of a prosecutor or defense attorney
rather than a judge. Some commenters
suggested that immigration judges
would work in tandem with DHS
attorneys to deny asylum claims.
Commenters stated that a rule that
undermined an adjudicator’s
impartiality would undermine aliens’
due process rights. Commenters
expressed concerns that immigration
judges would have pre-prepared country
conditions evidence packets to submit
during removal proceedings, which they
alleged would be improper.
Commenters generally stated that this
rule would be harmful to aliens, and
several commenters alleged that the rule
would be particularly harmful to certain
discrete populations or pro se aliens.
Commenters asserted that pro se aliens
may be less able to present evidence on
their own behalf in support of their
claims. Additionally, commenters stated
that the rule does not explicitly state
whether pro se aliens will be told that
they have a right to object to the
evidence.
Commenters expressed concern that
the rule did not provide sufficient
guidance or protections for aliens in
proceedings in which the immigration
judge introduces evidence into the
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record. For example, commenters
expressed concern that the rule did not
specify the period of time in which
parties must respond to evidence
submitted by the immigration judge or
provide guidance that parties could
respond to such evidence. Commenters
suggested that the rule’s language
stating that parties should have an
opportunity to respond or object to
evidence was at odds with the chapter
3.1(b) of the Immigration Court Practice
Manual, which requires parties to
submit evidence at least 15 days before
a hearing.
Commenters suggested that
immigration judges would not fairly
hear challenges to the evidence the
immigration judge may have submitted.
Some commenters speculated that
parties, particularly pro se immigrants
and vulnerable populations, would be
too intimidated to raise objections to
evidence submitted by the immigration
judge. Other commenters expressed
concerns that the rule failed to provide
guidance regarding what types of
evidence immigration judges may
include. Further, commenters opposed
the rule because they claimed it failed
to specify whether parties would have
the opportunity to submit comments or
objections in writing to evidence
submitted by the immigration judge.
Commenters were concerned that
non-English speakers would not
understand English-language documents
submitted by an immigration judge.
Commenters stated that there was no
provision allowing for a continuance for
the parties to review and respond to the
newly introduced evidence.
Commenters stated that the rule
would violate section 240(b)(1) of the
Act, 8 U.S.C. 1229a(b)(1), which
provides that ‘‘[t]he immigration judge
shall administer oaths, receive evidence,
and interrogate, examine, and crossexamine the alien and any witnesses.’’
Specifically, commenters asserted that
Congress did not intend to confer
authority on immigration judges to
submit evidence because the statute
specified only that the immigration
judge may receive evidence but was
silent with respect to whether the
immigration judge could submit
evidence. Commenters further stated
that, prior to the IIRIRA amendments,
the Act authorized immigration judges
to ‘‘present and receive evidence,’’
which commenters believed further
demonstrated that Congress did not
intend for immigration judges to have
the authority to submit evidence into
the record. Commenters similarly stated
that the rule conflicts with the
regulations at 8 CFR 1003.10(b) (stating
that immigration judges may ‘‘receive
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evidence’’) and 8 CFR 1240.1(c) (stating
that immigration judges may ‘‘receive
and consider material and relevant
evidence’’).
Some commenters suggested that the
rule was at odds with other recent
agency rulemakings, such as 85 FR
36264 (addressing admissibility of
stereotype evidence) (proposed), and 85
FR 52491 (limiting immigration judges’
discretion by restricting their sua sponte
authority to reopen cases) (proposed).
Some commenters stated that the rule
would be ineffective at addressing
inconsistencies and defects in
immigration courts, such as, the
commenters claimed, disparate patterns
in immigration-judge decisions.
Commenters stated that the rule would
similarly be ineffective at achieving its
purpose of allowing decisions to be
made after full consideration of the
evidence.
Some commenters stated that the rule
would be inefficient at reducing
overloaded dockets because
immigration judges would be
responsible for searching for evidence
and consulting with parties about such
evidence, which the commenter opined
would require a great deal of time and
resources and result in more appeals to
the Federal circuit courts.
Commenters recommended a number
of changes to the rule, including
allowing immigration judges to submit
only favorable evidence to the alien.
Commenters suggested that such a rule
would be similar to procedures already
in place at other government agencies,
such as the Social Security
Administration and Department of
Veterans Affairs.
Commenters were concerned that the
rule did not provide sufficient guidance
regarding how immigration judges
should consider and respond to
objections to their admission of
evidence on the record.
Response: The Department reiterates
its response to similar comments, supra,
and adds the following further response.
As an initial point, few, if any,
commenters acknowledged that
immigration judges have been tasked
with developing the record in asylum
cases for many years, including by
submitting evidence on their own
authority, with no noted concerns,
challenges, or complaints. See 85 FR at
59695 (collecting authorities). Indeed,
‘‘various guidelines for asylum
adjudicators,’’ including ones such as
the UNHCR whose views most
commenters otherwise supported,
‘‘recommend the introduction of
evidence by the adjudicator.’’ Matter of
S–M–J–, 21 I&N Dec. at 729 (citing
UNHCR, Handbook on Procedures and
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Criteria for Determining Refugee Status
under the 1951 Convention and the
1967 Protocol Relating to the Status of
Refugees paras. 203, 204, at 48 (1992)).
Thus, the rule merely codifies a longaccepted and well-recognized practice.
As discussed, supra, the Department
strongly disagrees with commenters’
suggestions that immigration judges are
biased or incompetent and will ignore
applicable law or make decisions on
factors outside of the record and the
law. The Department is confident that
EOIR’s immigration judge corps adheres
to the highest levels of professionalism
and will continue to apply their
independent judgment and discretion, 8
CFR 1003.10(b), when evaluating
asylum applications. Generalized, ad
hominem allegations of bias or
impropriety are insufficient to
‘‘overcome a presumption of honesty
and integrity in those serving as
adjudicators.’’ Withrow v. Larkin, 421
U.S. at 47. As such, the Department
declines to accept commenters’ broad
and unfounded asseverations that
immigration judges are biased against
aliens and will utilize this rule to
effectuate those biases. Chem. Found.,
Inc., 272 U.S. at 14–15 (‘‘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.’’).
Relatedly, most commenters failed to
recognize or acknowledge the inherent
neutrality and impartiality of
immigration judges. See Executive
Office for Immigration Review, Ethics
and Professionalism Guide for
Immigration Judges, sec. V (Jan. 26,
2011), available at https://
www.justice.gov/eoir/sibpages/
IJConduct/EthicsandProfessionalism
GuideforIJs.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.’’); see also 5 CFR 2635.101(b)(8)
(‘‘[Federal Government] [e]mployees
shall act impartially and not give
preferential treatment to any private
organization or individual.’’). Further,
commenters failed to understand that
evidence is designed to assist the
factfinder—i.e., the immigration judge—
rather than to benefit one party over
another. In short, commenters’
tendentious views that immigration
judges are routinely biased against
aliens and that the rule will promote
their biases is wholly unfounded in law
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and practice 62 and completely
inapposite to the purposes served by
evidentiary submissions in an
immigration hearing.
The Department disagrees with
commenters’ concerns that this rule
would undermine the immigration
judge’s role as a neutral arbiter. The rule
amends the regulations so that
immigration judges may, in their
discretion, consider evidence that has
not been presented by the parties in
order to make their determinations.
Nothing in the rule has any bearing on
judicial interpretations of such
evidence. The Department fully expects,
as mandated by regulation, that in
complying with this rule, immigration
judges to continue to conduct
themselves as neutral arbiters of the
law. See 8 CFR 1003.10(b); see also 5
CFR 2635.101(b)(8).
Notably, immigration judges have
long had the authority and duty to
manage immigration court hearings,
including creating and controlling the
record of proceeding, and to fully
develop the record, while impartially
adjudicating cases before them. 8 CFR
1003.10(b); see also 8 CFR 1003.36
(‘‘The Immigration Court shall create
and control the Record of Proceeding.’’).
It is also consistent with an immigration
judge’s duty to develop the record. See
85 FR at 59695 (collecting authorities).
Commenters’ suggestions that
immigration judges might create
standard country conditions packets of
evidence that they might enter into the
record did not explain why such
evidence would be inappropriate or
improper. As a matter of standard
practice, both parties already submit
standard (and voluminous) packets of
country conditions evidence of varying
degrees of probative value. In cases
where country conditions evidence is
lacking—e.g., the most recent relevant
State Department Country Report on
Human Rights Practices—many
immigration judges already provide
copies of such evidence to both parties.
Commenters did not explain why
allowing immigration judges to provide
standard country conditions reports—
longstanding and credible sources of
directly relevant information that
frequently require the submitting party
to print out hundreds of pages—would
be improper, and the Department is
62 The Department further notes that complaints
of misconduct against immigration judges have
declined for three consecutive fiscal years, even as
the size of the corps has grown to its largest level
in the Department’s history. See EOIR, Adjudication
Statistics (Oct. 23, 2019), https://www.justice.gov/
eoir/page/file/1163621/download; Immigration
Judge (IJ) Complaints (Oct. 2020), available at
https://www.justice.gov/eoir/page/file/1104851/
download.
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81739
unaware of any reason to conclude that
it would be. Further, such a procedure,
which, again, is already commonly
employed by immigration judges,
particularly pursuant to Matter of S–M–
J–, would not undermine the
immigration judge’s neutrality or the
fairness of proceedings. The
immigration judge would weigh such
evidence, like any evidence submitted
into the record pursuant to this rule,
against all other evidence of record in
issuing a final determination. Moreover,
to the extent that commenters’ concerns
are actually rooted in a tacit belief that
additional probative evidence exists that
has not been submitted by an asylum
applicant and would call into doubt the
validity of the applicant’s claim, the
Department finds the suggestions that
immigration judges should decide cases
without as much probative evidence as
possible or that it is preferable for
immigration judges to decide cases with
less probative evidence utterly
unpersuasive.
The Department reiterates its rejection
of any implication that EOIR’s corps of
immigration judges is biased.
Immigration judges, who have been
selected based on merit, are required to
adjudicate cases in an ‘‘impartial
manner,’’ 8 CFR 1003.10(b), exercise
‘‘independent judgment and
discretion,’’ id., and ‘‘should not be
swayed by partisan interests or public
clamor,’’ Executive Office for
Immigration Review, Ethics and
Professionalism Guide for Immigration
Judges, sec. VIII (Jan. 26, 2011),
available at https://www.justice.gov/
sites/default/files/eoir/legacy/2013/05/
23/EthicsandProfessiona
lismGuideforIJs.pdf. Regardless of
previous experience, immigration
judges are sworn in and governed by the
same regulations and ethical standards
to be neutral and impartial. Nothing in
this rule affects those obligations, and
commenters’ unfounded accusations of
bias leading to due process violations
are insufficient to ‘‘overcome a
presumption of honesty and integrity in
those serving as adjudicators.’’ Withrow
v. Larkin, 421 U.S. at 47.63
63 Although the Department acknowledges prior
high-profile criticisms of immigration judge bias by
circuit courts, see, e.g., Islam v. Gonzales, 469 F.3d
53, 56 (2d Cir. 2006) (‘‘Unfortunately, this is not the
first time that the courtroom conduct of IJ [Jeffrey]
Chase has been later questioned by this Court. By
our count, this is the seventh time that we have
criticized IJ Chase’s conduct during hearings. Our
recent opinion . . . described IJ Chase’s ‘apparent
bias against [the applicant] and perhaps other
Chinese asylum applicants,’ . . . and five summary
orders in our Circuit have expressed similar
concerns about IJ Chase’s remarks and demeanor
while conducting hearings.’’) (internal citations
omitted), and notes that commenters also cited to
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The Department rejects commenters’
insinuations that immigration judges
would not be impartial in entering
evidence to the record or would only
introduce evidence that would be
damaging to an alien’s claim.
Immigration judges are bound by
regulation to ‘‘resolve the questions
before them in a timely and impartial
manner.’’ 8 CFR 1003.10(b) (emphasis
added); see also 5 CFR 2635.101(b)(8)
(‘‘[Immigration judges] shall act
impartially and not give preferential
treatment to any private organization or
individual.’’). The rule permits
immigration judges to submit probative
evidence from credible sources into the
record. Such evidence may benefit
either party, depending on the larger
context and facts of the case, but the
purpose of the rule is not to assist either
party. The purpose is to allow the
adjudicator, consistent with current
practice and case law, to develop the
record sufficiently to make an informed
decision regarding the merits of the
case. Allegations regarding whether
such procedures, which are already
well-established, will benefit one party
over another are both grossly
speculative and wholly inapposite.
Additionally, this rulemaking does not
bar parties from submitting their own
evidence, so long as it is admissible. It
merely permits the immigration judge to
submit additional evidence where
necessary and in an exercise of
discretion, so that the immigration judge
may render a decision based upon a
fully developed and probative record.
The Department disagrees with
commenters’ concerns that authorizing
the immigration judge to supplement
federal court cases that discuss or touch upon
immigration judge bias, Ali v. Mukasey, 529 F.3d
478 (2d Cir. 2008); Wang v. Att’y Gen. of U.S., 423
F.3d 260 (3d Cir. 2005); Zuh v. Mukasey, 547 F.3d
504 (4th Cir. 2008); Floroiu v. Gonzales, 481 F.3d
970 (7th Cir. 2007); Tun v. Gonzales, 485 F.3d 1014
(8th Cir. 2007), the concerns reflected by these cases
are more than a decade old. More recent
information reflects that complaints of misconduct
against immigration judges have fallen for three
consecutive fiscal years despite a significant
increase in the size of the corps. See Executive
Office for Immigration Review, Adjudication
Statistics: Immigration Judge (IJ) Complaints (Oct.
2020), available at https://www.justice.gov/eoir/
page/file/1104851/download. Nevertheless, to the
extent that commenters remain concerned about the
bias or other conduct of immigration judges, the
Department notes that EOIR has developed a
mechanism for raising such complaints specifically
for the purpose of addressing bias by EOIR
adjudicators. See Executive Office for Immigration
Review, EOIR Adjudicator Complaint Process
Summary (rev. Oct. 15, 2018), available at https://
www.justice.gov/eoir/page/file//download (‘‘In
instances where concerns regarding the conduct of
an immigration judge, board member, or
administrative law judge (collectively, adjudicator)
arise, EOIR is committed to ensuring that any
allegations of judicial misconduct are investigated
and resolved in a fair and expeditious manner.’’).
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the record would harm pro se aliens. To
the contrary, immigration judges already
have a well-established obligation to
develop the record in cases of pro se
aliens. See Mendoza-Garcia v. Barr, 918
F.3d 498, 504 (6th Cir. 2019) (collecting
cases); see also Al Khouri v. Ashcroft,
362 F.3d 461, 464–65 (8th Cir. 2004)
(‘‘[I]t is the IJ’s duty to fully develop the
record. Because aliens appearing pro se
often lack the legal knowledge to
navigate their way successfully through
the morass of immigration law, and
because their failure to do so
successfully might result in their
expulsion from this country, it is critical
that the IJ scrupulously and
conscientiously probe into, inquire of,
and explore for all the relevant facts.’’)
(citations and internal quotation marks
omitted). Further, this rule will ensure
pro se aliens, who may not be as aware
as an immigration judge of available
probative evidence from credible
sources of country conditions, receive
due process and full consideration of
their claims. This provision of the rule
is consistent with an immigration
judge’s regulatory directive to ‘‘take any
action consistent with their authorities
under the Act and regulations that is
appropriate and necessary for the
disposition of [individual cases before
them],’’ 8 CFR 1003.10(b); see also 85
FR at 59695, and the immigration
judge’s unique role to ensure full
consideration of all relevant evidence
and full development of the record for
cases involving a pro se respondent, see
Matter of S–M–J–, 21 I&N Dec. at 729
(noting that ‘‘various guidelines for
asylum adjudicators recommend the
introduction of evidence by the
adjudicator’’).
Commenters’ concerns that, under
this rule, parties would not have the
opportunity to respond to evidence that
the immigration judge submits, are
plainly refuted by the regulatory
language, which requires that the parties
‘‘have had an opportunity to comment
on or object to the evidence prior to the
issuance of the immigration judge’s
decision.’’ 8 CFR 1208.12(a).
Additionally, the Department has
previously explained that requiring the
immigration judge to provide a copy of
submitted evidence to both parties was
specifically intended to ‘‘give the parties
an opportunity to respond to or address
the information appropriately.’’ 85 FR at
59695.64
64 The NPRM declined to propose a bright line
rule for precisely how a party may have an
opportunity to comment on the evidence because
the reasonableness of a party’s opportunity to
comment will vary based on the overall context of
the case and the nature of the evidence the
immigration judge proposes to submit. For example,
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The Department disagrees with
commenters’ concerns that immigration
judges would be unable to adequately
address objections to evidence that they
submit. Immigration judges have been
hired based upon their merit and
receive ‘‘comprehensive, continuing
training and support’’ directed at
‘‘promot[ing] the quality and
consistency of adjudications.’’ 8 CFR
1003.0(b)(1)(vii). The Department
believes that immigration judges are
well-equipped to address any arguments
raised with respect to evidence that they
submit, including how to weigh that
evidence against all other evidence of
record and, if appropriate,
acknowledging successful challenges to
its admission.
Further, parties will have the
opportunity to object to the evidence,
and the Department expects that if
parties have an objection, they will
make it contemporaneously when the
immigration judge submits the evidence
in order to preserve the issue for appeal.
The Department believes that existing
appellate procedures would mitigate
commenter concerns, though unfounded
as an initial matter, that immigration
judges may be unwilling to fairly
consider objections to evidence that
they submitted or that parties may not
have sufficient time to respond to such
evidence.
With respect to commenter concerns
that non-English speakers may not be
able to understand English documents
that the immigration judge may choose
to submit into the record, the
Department notes that there is no
existing requirement for immigration
judges to translate documents submitted
into evidence into an alien’s native
language when developing the record.
See Matter of S–M–J–, 21 I&N Dec. at
727 (observing that ‘‘if background
information is central to an alien’s
claim, and the Immigration Judge relies
on the country conditions in
adjudicating the alien’s case, the source
of the Immigration Judge’s knowledge of
the particular country must be made
if the record already contains thousands of pages of
country conditions evidence submitted by attorneys
for both parties and the immigration judge merely
submits the most recent State Department Country
Report on Human Rights Practices that the parties
simply forgot to submit, the opportunity to
comment should not be lengthy. In contrast, if an
immigration judge submits hundreds of pages of
country conditions evidence in a proceeding
involving a pro se alien who does not speak
English, then a continuance may be warranted to
allow the alien an opportunity to comment on the
evidence. The Department recognizes that the
nature of the opportunity to comment will vary
from case to case based on the particular facts of
each case, and it expects immigration judges to
address such situations consistent with applicable
laws and policies.
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part of the record’’ but nowhere
requiring that such information be
submitted in the alien’s native
language). Further, most commenters
failed to acknowledge that all evidence
submitted in an immigration hearing,
regardless of who submits it, is to be
submitted in English or with an English
translation. 8 CFR 1003.33.65
Additionally, nothing in the statute or
regulations requires that evidence of
record be written or explained in the
respondent’s native language. Cf. Singh
v. Holder, 749 F.3d 622, 626 (7th Cir.
2014) (‘‘[i]n the immigration context,
personal service in English to a nonEnglish-speaker typically satisfies due
process because it puts the alien on
notice that further inquiry is needed,
leaving the alien to seek help from
someone who can overcome the
language barrier.’’’); Ojeda-Calderon v.
Holder, 726 F.3d 669, 675 (5th Cir.
2013) (‘‘Due process allows notice of a
hearing to be given solely in English to
a non-English speaker if the notice
would put a reasonable recipient on
notice that further inquiry is required.’’).
Finally, as discussed supra, and
notwithstanding the longstanding rule
that evidence must be submitted in
English or with a certified translation,
the Department also expects
immigration judges to account for an
alien’s native language when
considering what opportunity to
provide to the alien to respond to
evidence submitted by an immigration
judge, particularly for the small
minority of aliens who are pro se.66
The Department disagrees with
comments alleging that the rule is
inconsistent with section 240(b)(1) of
the Act, 8 U.S.C. 1229a(b)(1), which
provides that ‘‘[i]mmigration judges
shall administer oaths, receive evidence,
and interrogate, examine, and crossexamine the alien and any witnesses,’’
and commenters did not reconcile their
interpretation of that provision with
case law allowing, if not also requiring,
immigration judges to submit evidence
65 The Department notes that there is no existing
requirement that evidence submitted by DHS be
translated into an alien’s native language or even
that an alien’s representative translate all evidence
submitted on the alien’s behalf into the alien’s
native language.
66 The Department notes that the State
Department Country Reports on Human Rights
Practices, which are the most common evidence
submitted by immigration judges, are available in
multiple languages, including Spanish. See,
Department of State, 2019 Country Reports on
Human Rights Practices Translations, available at
https://www.state.gov/2019-country-reports-onhuman-rights-practices-translations/ (last visited
Nov. 20, 2020). Nothing in this rule precludes an
immigration judge from providing a translated copy
of the Country Report to an alien in addition to the
English-language version.
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in order to develop the record, see 85 FR
at 59695 (collecting cases). As
commenters noted, the statute does not
explicitly direct immigration judges to
submit evidence into the record, but it
does not purport to represent the
complete and exclusive scope of
immigration judge authority with regard
to proceedings. Further, the Department
disagrees with commenters that the
amendments to the statutory language
from ‘‘present and receive evidence’’ to
simply ‘‘receive evidence’’ indicate a
prohibition on the ability of
immigration judges to introduce
evidence, given the continued duty of
immigration judges to develop the
record. See Constanza-Martinez v.
Holder, 739 F.3d at 1102 (‘‘The parties
agree it is unclear why ‘present’ was
removed from the INA. Even so, IJs
maintain an affirmative duty to develop
the record.’’).67
Commenters’ concerns that the
regulations do not allow immigration
judges to submit evidence into the
record need not be addressed because
this rule, enacted through the
appropriate APA procedures, amends
the Department’s regulations to
specifically authorize immigration
judges to do so. Moreover, as discussed,
supra, ample case law already provides
a basis, independent of regulatory one,
for immigration judges to submit
evidence. And, as also discussed
elsewhere, the Department does not
believe that this rule would undermine
the neutrality of immigration judges and
accordingly rejects commenters’
arguments that this rule conflicts with
the regulations requiring immigration
judges to act with impartiality.
The Department disagrees with
commenter’s concerns that this
rulemaking will overburden
immigration judges and exacerbate
67 See also 8 CFR 1003.10(b) (‘‘In deciding the
individual cases before them, . . . immigration
judges shall exercise their independent judgment
and discretion and may take any action consistent
with their authorities under the Act and regulations
that is appropriate and necessary for the disposition
of such cases.’’); 8 CFR 1003.36 (‘‘The Immigration
Court shall create and control the Record of
Proceeding.’’); Yang v. McElroy, 277 F.3d 158, 162
(2d Cir. 2002) (per curiam) (‘‘[T]he IJ whose
decision the Board reviews, unlike an Article III
judge, is not merely the fact finder and adjudicator
but also has an obligation to establish the record.’’);
Richardson v. Perales, 402 U.S. 389, 410 (1971)
(finding that an administrative law judge ‘‘acts as
an examiner charged with developing the facts’’);
Charles H. Koch, Jr. & Richard Murphy,
Administrative Law and Practice § 5.25 (3d ed.
2020) (noting that ‘‘[t]he administrative judge is
pivotal to the fact-finding function of an evidentiary
hearing and hence, unlike the trial judge, an
administrative judge has a well-established
affirmative duty to develop the record’’); Matter of
S–M–J–, 21 I&N Dec. at 729 (noting that ‘‘various
guidelines for asylum adjudicators recommend the
introduction of evidence by the adjudicator’’).
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81741
docket-management issues. To the
contrary, this rule empowers
immigration judges with additional
tools to resolve the cases before them
based on a full and complete record. It
does not mandate immigration judges
introduce evidence in any case or
otherwise require additional work if an
immigration judge determines it is not
needed or would be inefficient in a
particular case.
Commenters made a number of
recommendations regarding changes or
alternatives to this provision of the rule,
including incorporating a checklist for
immigration judges to follow to prevent
bias in assessing country conditions
evidence; altering the rule so that
immigration judges do not submit
evidence themselves but instead suggest
to the parties the inclusion of evidence,
such as country conditions evidence
from the EOIR database, they would like
to consider; or only permitting
immigration judges to submit evidence
that is favorable to the alien. The
Department appreciates the
recommendations submitted by
commenters, but each one is
problematic, and none is preferable to
the rule.
For example, the suggestion for a
checklist is premised on the assertion
that immigration judges may be biased,
but as discussed previously, that
assertion is wholly unfounded.
Moreover, immigration judges are wellversed in assessing the admissibility
and weight of evidence, and there is no
indication that a checklist would aid
them in that regard. Suggesting that the
parties introduce particular evidence,
rather than allowing the immigration
judge to introduce it, would not aid pro
se aliens who may lack the resources or
access to print tens or hundreds of pages
of country conditions reports. Finally,
the suggestion that immigration judges
only submit evidence favorable to aliens
would be anathema to an immigration
judge’s role as a neutral adjudicator and
would violate both an immigration
judge’s ethical and professional
responsibility obligations, see Ethics
and Professionalism Guide for
Immigration Judges, sec. V (Jan. 26,
2011), available at https://
www.justice.gov/eoir/sibpages/
IJConduct/EthicsandProfessionalism
GuideforIJs.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.’’); see also 5 CFR 2635.101(b)(8)
(‘‘[Immigration judges] shall act
impartially and not give preferential
treatment to any private organization or
individual.’’), and an immigration
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judge’s regulatory duty of impartiality, 8
CFR 1003.10(b) (‘‘In all cases,
immigration judges shall seek to resolve
the questions before them in a timely
and impartial manner’’).
The Department also disagrees with
commenters’ concerns that this
provision of the rule conflicts with
recent rules proposed—and now
finalized—by the Department,
specifically those (1) limiting EOIR
adjudicators’ sua sponte authority, 85
FR 52491 (‘‘The Board shall not sua
sponte remand a case unless the basis
for such a remand is solely a question
of jurisdiction over an application or the
proceedings.’’) (proposed)), and (2)
barring admissibility of stereotype
evidence, 85 FR 36264.
Regarding stereotype evidence, the
Department proposed to exclude the
admission of pernicious, unfounded
evidence that is predicated upon
harmful stereotypes from being entered
into the record, 85 FR at 36282; cf.
Matter of A–B–, 27 I&N Dec. at 336 n.9,
and finalized that proposal with some
minor, non-substantive edits for clarity
in response to commenters’ concerns,
Procedures for Asylum and Withholding
of Removal; Credible Fear and
Reasonable Fear Review, signed by the
Attorney General and the Acting
Secretary of Homeland Security on
December 2, 2020. Nothing in this rule
would encourage immigration judges to
submit pernicious, unfounded evidence
that is predicated upon harmful
stereotypes. As plainly noted in the
regulation, evidence submitted by an
immigration judge must be ‘‘relevant
. . . if the source is credible and the
evidence is probative,’’ see 8 CFR
1208.12(a), and evidence of pernicious
stereotypes about a country would not
meet those criteria.
Commenters’ concerns with respect to
EOIR adjudicators’ sua sponte authority
is unrelated to this rulemaking. Indeed,
the rule focuses on the adjudication of
asylum applications in pending cases,
whereas sua sponte authority is used to
reopen a case in which a decision has
already been rendered. Nothing in the
present rule interacts with or is
connected to the Department’s proposal
to limit the Attorney General’s
delegation of sua sponte authority to
EOIR adjudicators.
b. Asylum Adjudication Clock
Comment: Commenters stated that,
despite recognizing the statutory 180day asylum adjudication deadline in the
Act, INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii), it was unreasonable
for the Department to implement this
regulation due to the significant number
of pending cases at EOIR. Commenters
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explained that requiring asylum
applications to be completed within 180
days would not allow attorneys and
aliens sufficient time to prepare cases
for adjudication, would require
immigration judges to unfairly delay
non-asylum cases on their dockets,
would strip immigration judges of the
ability to manage their dockets, would
prevent asylum seekers from fully
presenting their cases due to a lack of
individual hearing slots, would result in
a significant number of suddenly
advanced hearings, would lessen the
ability of asylum seekers to obtain
counsel, and would cause unsuccessful
applicants to be removed before
pending ancillary relief with USCIS
could be adjudicated.
Commenters claimed that Congress’s
use of the word ‘‘shall’’ when discussing
the 180-day asylum adjudication
deadline was permissive rather than
mandatory and, therefore, EOIR should
not issue regulations indicating a
mandatory deadline.
Commenters also raised concerns
about the 180-day asylum adjudication
deadline’s effect on child asylum
applicants. Commenters stated that
child applicants face unique challenges
in presenting their claims and are
deserving of enhanced procedural
protections, such as an exception to the
adjudication deadline. In addition,
commenters questioned whether the
180-day adjudication deadline would
apply to USCIS’s initial adjudication of
asylum applications filed by UAC.
Commenters were separately
concerned about the 180-day asylum
adjudication deadline and its effect on
work authorization. Commenters stated
that the rule would prevent asylum
seekers from obtaining work
authorization, particularly in light of
recent DHS regulatory changes
increasing the minimum wait time,
which would result in the inability of
asylum seekers to afford
representation.68 Commenters
recommended that the Department
replace 8 CFR 1208.7 with language
clarifying EOIR’s role in the work
authorization process rather than
remove and reserve the section entirely,
which would remove guidance for the
parties and the court from the
regulations.
Response: The Department reiterates
its response to similar comments, supra,
and adds the following further response.
To the extent that commenters disagreed
with the general existence of a 180-day
68 This provision is currently subject to a
preliminary injunction in Casa de Maryland v.
Wolf, No. 8:20–cv–02118–PX (D. Md. Sept. 11,
2020), appeal docketed, No. 20–2217 (4th Cir. Nov.
12, 2020).
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adjudication deadline for asylum
applications absent exceptional
circumstances, the Department notes
that deadline is established by statute,
INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii), and cannot be altered
by rulemaking. Accordingly, such
concerns are beyond the scope of this
rulemaking and the Department’s
rulemaking authority and therefore
more appropriately addressed to
Congress.
Specifically, as commenters
recognize, adjudicating asylum
applications within 180 days of filing is
a statutory requirement set by Congress.
See INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii). Therefore, issuing
regulations to implement this
requirement effectuates congressional
intent that asylum applications be
promptly adjudicated.69 Complaints
that the Department should not issue
regulations implementing this deadline
because immigration courts are
overburdened is not a valid reason to
simply ignore congressional mandates.
Rather, ensuring that asylum
applications are adjudicated within a
180-day timeframe will help to decrease
immigration court backlogs and ensure
that asylum applicants are not forced to
wait in limbo in the United States for
extended periods of time to receive a
determination on their applications.
With regard to commenters’ concerns
about the effect of the 180-day asylum
adjudication deadline on the ability of
asylum seekers to obtain counsel and
prepare their case, the Department again
notes that Congress set the 180-day
deadline. See INA 208(d)(5)(A)(iii), 8
U.S.C. 1158(d)(5)(A)(iii). By
implementing this provision, Congress
necessarily expressed their belief that
180 days is a reasonable time period for
asylum seekers to prepare and present
their case once they have filed their
application. In addition, the Department
emphasizes that this 180-day
adjudication period does not begin until
the asylum application is filed and not
from when DHS serves the alien with a
charging document or at some other
earlier point in the proceeding. Once the
69 To the extent commenters assert that the
Department failed to previously adhere to the law
regarding this adjudication period, the Department
acknowledges a lack of prior diligence in
maintaining compliance. Nevertheless, there is no
reason to continue to ignore a clear statutory
directive, and the Department has maintained a
policy that seeks to comply with that directive for
more than two years. EOIR Policy Memorandum
19–05, Guidance Regarding the Adjudication of
Asylum Applications Consistent with INA
§ 208(d)(5)(A)(iii) (Nov. 19, 2018), available at
https://www.justice.gov/eoir/page/file/1112581/
download. This rule will bolster that policy and
further emphasize the importance of adhering to
statutory directives.
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asylum application is filed, applicants
and their attorneys would have
additional time within the 180 days to
obtain any additional necessary
supporting evidence and to prepare for
any hearings on the application, which
the Department believes is a reasonable
time period, as reflected by the
congressional enactment.
The Department disagrees with
commenters that this rule will prevent
immigration judges from managing their
dockets or providing sufficient hearing
time to asylum applicants or that it will
result in the unfair delay of non-asylum
cases. As an initial point, immigration
judge authority is circumscribed by both
the Act and applicable regulations. 8
CFR 1003.10(b) (providing that
‘‘immigration judges . . . may take any
action consistent with their authorities
under the Act and regulations that is
appropriate and necessary for the
disposition of such cases’’) (emphasis
added)), 1240.1(a)(1)(iv) (providing that
immigration judges have the authority
in removal proceedings ‘‘[t]o take any
other action consistent with applicable
law and regulations as may be
appropriate’’) (emphasis added)). Thus,
the codification of a statutory
requirement in the Act in applicable
regulations does not alter the preexisting limits on an immigration
judge’s authority. Further, this rule
makes no changes to immigration
judges’ authority to manage their
dockets, and commenters have not
adequately explained how
implementing a statutorily-required
adjudication deadline, which
immigration judges are already expected
to follow as a matter of both law and
policy would alter this authority. See 8
CFR 1003.10(b). The Department has no
concerns that immigration judges will
fail to provide sufficient hearing time to
asylum applicants as necessary to the
adjudication of the application. See,
e.g., INA 240(b)(1), 8 U.S.C. 1229a(b)(1)
(providing immigration judges with
authority to ‘‘receive evidence, and
interrogate, examine, and cross-examine
the alien and any witnesses’’); 8 CFR
1240.11(c)(3) (requiring a hearing on an
asylum application only ‘‘to resolve
factual issues in dispute’’).
In regard to commenters’ concerns
that adjudicating asylum applications
within the statutorily-mandated
timeframe will prevent immigration
judges from adjudicating other cases,
the Department notes that this rule does
not prioritize any application or case
over another. Rather, the rule merely
implements a statutorily-mandated
adjudication deadline for asylum
applications. To the extent that
implementing this deadline may affect
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the adjudication of other cases, the
Department believes that the timely
adjudication of asylum applications will
help to reduce the immigration court
backlog, thereby allowing immigration
judges to more quickly adjudicate the
cases before them.
Regarding concerns about EOIR
advancing hearings, the Department
notes that such concerns are
speculative, particularly in the current
operational environment in which many
hearings are postponed due to the
outbreak of COVID–19. Nevertheless,
there is no reason to expect this rule to
result in an overwhelming number of
advanced hearings once EOIR’s
operating posture returns to normal, as
most immigration judges already have a
significant number of deadline-eligible
asylum applications pending on their
immediate dockets. And, in the event
that an immigration judge does choose
to advance a case, practitioners can
request a continuance as appropriate, 8
CFR 1003.29, although as the
Department has discussed, supra, it is
not clear why aliens with valid asylum
claims would desire further delay in the
adjudication of their case.
The Department also disagrees with
commenters that this provision raises
due process concerns. In immigration
proceedings, due process concerns are
only implicated if proceedings are ‘‘so
fundamentally unfair that the alien was
prevented from reasonably presenting
his case.’’ Gutierrez v. Holder, 662 F.3d
1083, 1091 (9th Cir. 2011) (citations
omitted). Requiring asylum applications
to be adjudicated within 180 days of
filing, as explicitly required by statute,
does not itself make proceedings
fundamentally unfair or prevent an
alien from exercising the statutory right
to present evidence. See INA
240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B). For
example, detained applicants routinely
have their applications adjudicated
within 180 days without apparent due
process concerns stemming from this
timeframe.
In regard to concerns about the
asylum adjudication deadline and its
effect on pending non-asylum
applications with USCIS, the
Department notes that this rule does not
make any changes for non-asylum
applications, including those pending
with USCIS. Moreover, a separate
pending application with USCIS does
not prevent the immigration court from
proceeding on the asylum application to
ensure its timely adjudication. In
addition, once the immigration court
has timely adjudicated the asylum
application, this rule does not prohibit
applicants from requesting a
continuance under the ‘‘good cause’’
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81743
standard or working with DHS counsel
to file a motion to dismiss based on a
pending application with USCIS. See 8
CFR 1003.29, 1239.2(c).
The Department understands and has
considered the comments related to
UAC but finds them either largely
inapplicable to the rule, insufficiently
persuasive, or outweighed by the rule’s
benefits to warrant changing the rule.
First, the timeframes applied by USCIS
to adjudicating asylum applications
filed by genuine UAC are beyond the
scope of this rulemaking because USCIS
is a DHS component, and the
Department offers no opinion regarding
USCIS’s views on section
208(d)(5)(A)(iii) of the Act, 8 U.S.C.
1158(d)(5)(A)(iii). Second, for purposes
of immigration judge adjudication, the
provisions of section 208(d)(5)(A)(iii) of
the Act, 8 U.S.C. 1158(d)(5)(A)(iii),
apply to ‘‘final administrative
adjudication of the asylum application,
not including administrative appeal’’
and, thus, would only become
applicable to the asylum application
filed by a UAC in removal proceedings
after that application has been returned
by USCIS back to the immigration court
following USCIS’s decision not to grant
it. In other words, the 180-day
adjudication deadline in immigration
proceedings for an asylum application
filed by a UAC in removal proceedings
would not be triggered until after USCIS
has made its initial determination on
that application under section
208(b)(3)(C) of the Act, 8 U.S.C.
1158(b)(3)(C). Moreover, nothing in this
rule affects USCIS’s initial adjudication
of asylum applications filed by UAC. Id.
Significantly, Congress did not
exempt UAC asylum applications from
the provisions of section
208(d)(5)(A)(iii) of the Act, 8 U.S.C.
1158(d)(5)(A)(iii), as it did for other
provisions. Compare INA 208(a)(2)(E), 8
U.S.C. 1158(a)(2)(E) (exempting UAC
asylum applications from limitations
imposed by asylum cooperative
agreements and the one-year filing
deadline). This evinces congressional
judgment that all asylum applicants
should have their applications
adjudicated within 180 days of filing,
regardless of the applicant’s individual
characteristics or status. This also makes
particular sense for UAC asylum
applications, as USCIS will already have
adjudicated their asylum application,
and the child applicant will only be
renewing that application with EOIR, as
opposed to submitting an entirely new
claim.
In short, the Department has fully
considered the issues raised by
commenters pertaining to UAC. As
noted, most of the concerns reflect a
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misapprehension of the rule’s contents,
are directed at statutory provisions that
cannot be changed by rulemaking, or
confuse adjudications by the
Department with those by USCIS. The
Department is aware of the special
circumstances and needs of genuine
UAC and maintains clear policies to
ensure that their cases are adjudicated
efficiently and consistent with due
process. See EOIR, Operating Policies
and Procedures Memorandum 17–03:
Guidelines for Immigration Court Cases
Involving Juveniles, Including
Unaccompanied Alien Children (Dec.
20, 2017), available at.gov/eoir/file/
oppm17-03/download. Nothing in the
rule alters those policies, and the
Department finds that the rule will not
have any greater effect on UAC than on
any other group of aliens. If anything,
the rule will have minimal to no effect
on UAC because they are unlikely to fall
within the classes of aliens in 8 CFR
1208.2(c) and their asylum applications
are subject to INA 208(d)(5)(A)(iii), 8
U.S.C. 1158(d)(5)(A)(iii), regardless of
this rule. Accordingly, on balance,
commenters’ assertions regarding the
rule’s impact on UAC are unfounded
and ultimately unpersuasive.
In response to commenters’ concerns
about this rule’s effect on the ability of
aliens to receive work authorization,
particularly in light of recent DHS
regulatory changes, the Department
notes that Congress explicitly intended
for asylum applications to be
adjudicated before the asylum seeker is
eligible for work authorization.
Compare INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii) (requiring
adjudication of asylum applications
within 180 days of filing), with INA
208(d)(2), 8 U.S.C. 1158(d)(2)
(permitting work authorization only
after a minimum of 180 days has
elapsed from the filing of an asylum
application). In this manner, eligibility
for worth authorization is meant to be
the exception for aliens whose cases
exceed the reasonable period of time for
adjudication, as set by Congress, but not
the standard or expectation for asylum
seekers as a matter of course.
Relatedly, and contrary to
commenters’ assertions, this rule does
not interfere with an asylum seeker’s
statutory right to representation, INA
240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A),
due to an inability to receive work
authorization and thus afford an
attorney. Rather, aliens who are unable
to afford fee-based counsel may seek pro
bono representation or avail themselves
of other programs to obtain information
to prepare their cases. Moreover, as
noted supra, this statutory provision has
been in effect for more than 20 years,
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and the current representation rate of
85% strongly suggests it has not
impacted an alien’s ability to obtain
representation.
Lastly, the Department considered the
commenters’ suggestion that, rather than
remove and reserve existing 8 CFR
1208.7, the Department should amend 8
CFR 1208.7 with clarified regulatory
language regarding EOIR’s role related
to work authorization. After
consideration, the Department
continues to believe that regulatory
language regarding work authorization
is better located solely within DHS’s
regulations because DHS has sole
authority over work authorization.
Further, as discussed in the NPRM,
removing and reserving 8 CFR 1208.7
would avoid any potential future
conflict should DHS amend 8 CFR
208.7. See 85 FR at 59695. In short,
EOIR plays no part in adjudicating
applications for alien EADs, and there is
no reason to maintain vestigial
regulations related to a process in which
EOIR has no role.70
Comment: Commenters were opposed
to the rule’s ‘‘exceptional
circumstances’’ definition, stating that
there are many situations that may not
rise to the level of exceptional
circumstances as defined in the rule but
nevertheless should be sufficient to
grant additional time beyond 180 days.
As examples, commenters pointed to
asylum seekers requiring mental health
services before they can fully discuss
their asylum claim or the need to obtain
corroborating evidence from their home
countries. Commenters stated that the
definition as drafted would result in
increased appeals and remands.
70 The Department notes that retaining 8 CFR
1208.7 would have no effect on EOIR operations—
other than risking confusion by the parties
regarding which agency is responsible for
adjudicating an EAD application—because its
previous provisions simply do not apply to EOIR.
To the contrary, EOIR already excludes applicantcaused delays that meet the exceptional
circumstances standard from calculating the
statutory 180-day asylum adjudication clock as
noted in 8 CFR 1208.7(a)(2). See EOIR Policy
Memorandum 19–05, Guidance Regarding the
Adjudication of Asylum Applications Consistent
with INA § 208(d)(5)(A)(iii) at 2–3 (Nov. 19, 2018)
(‘‘But, absent delays that qualify as exceptional
circumstances, 8 CFR 1208.7(a)(2) does not relieve
Immigration Judges of their obligation to adjudicate
asylum claims within 180 days.’’), https://
www.justice.gov/eoir/page/file/1112581/download.
Further, although EOIR provides DHS with access
to a separate ‘‘clock’’ for purposes of adjudicating
EAD applications, EOIR does not adjudicate EAD
applications themselves and, thus, does not
interpret the time period related to EAD
applications in INA 208(d)(2), 8 U.S.C. 1158(d)(2).
Accordingly, although retention of 8 CFR 1208.7
would not alter EOIR’s existing processes, its
superfluousness and the risk of confusion related to
maintaining it regarding which agency is
responsible for adjudicating EAD applications
militate strongly in favor of removing it.
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Similarly, commenters stated that the
Department should not mirror the
statutory ‘‘exceptional circumstances’’
definition in section 240(e)(5) of the
Act, 8 U.S.C. 1229a(e)(5), because failing
to appear at a hearing has different
equities than needing more time to
support an asylum application.
Commenters also stated that the
exceptional circumstances requirement
should apply to DHS attorneys and the
immigration judge as well. One
commenter likewise requested that the
Department modify the final rule to
explicitly include immigration judge
requests for Department of State
comments to qualify as an exceptional
circumstance.
Response: In regard to concerns with
the ‘‘exceptional circumstances’’
standard, the Department first notes that
Congress mandated this standard. See
INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii). The Department has
reasonably chosen to interpret this
language in accordance with its explicit
definition elsewhere in the statute to
ensure consistency within the statute
and the long-held definition used by
parties and the courts. See INA
240(e)(1), 8 U.S.C. 1229a(e)(1). The
Department acknowledges commenters’
concerns that there may be
circumstances in which an alien may
not meet the standard, but that is true
of any standard. Congress provided an
undefined standard in the Act, and the
Department has determined that an
existing statutory definition elsewhere
in that statute is a reasonable
interpretation of a phrase connoting
circumstances that are generally
considered ‘‘severe impediments.’’ See
Chevron, 467 U.S at 844 (requiring
deference to an agency’s reasonable
interpretation of an ambiguous statute);
see also Singh-Bhathal v. INS, 170 F.3d
943, 947 (9th Cir. 1999) (interpreting
exceptional circumstances to involve
‘‘severe impediment[s]’’). Commenters
have not provided support for the
contention that implementing such a
definition will result in increased
appeals or remands or explained why
the Department should not adopt a
compelling existing statutory definition,
particularly one that comports with
common-sense notions of ‘‘exceptional
circumstances.’’
The Department declines to create any
specific exceptions to the definition,
and it recognizes that no rule can cover
every possible factual scenario,
particularly when considering the
existence of more than 500,000 pending
asylum applications currently. See
Executive Office for Immigration
Review, Adjudication Statistics: Total
Asylum Applications (Oct. 13, 2020),
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available at https://www.justice.gov/
eoir/page/file/1106366/download. Thus,
although the Department has considered
commenters’ suggestion to list
Department of State comment requests
as constituting an extraordinary
circumstance, see 8 CFR 1208.11, the
Department declines to provide that
specific exception. Rather, the
Department will allow immigration
judges, who are better positioned to
evaluate the specific facts in each case,
to make a case-by-case determination on
whether extraordinary circumstances
exist. See, e.g., Arredondo v. Lynch, 824
F.3d 801, 805 (9th Cir. 2016) (explaining
that, in the failure to appear context, the
court must look to the particularized
facts in each case when determining
whether exceptional circumstances
exist).
Similarly, in a vacuum, the
Department cannot respond to
commenters’ generalized statements
about various proposed exceptions
because asylum applications are
adjudicated based on their specific facts,
not on generalized speculative
assertions or extrapolations. For
example, a commenter’s suggestion that
a need for mental health services is an
exceptional circumstance may be true in
some cases because it may be indicative
of ‘‘serious illness of the alien;’’
however, unmoored from any larger
context, the Department cannot say that
it would be exceptional in all cases,
particularly if it is unrelated to the
claim at issue.71 Further, some aliens
with valid claims who are receiving
mental health treatment may not wish to
use that treatment as a basis to delay
adjudication of their case because they
seek to obtain relief as quickly as
possible. The Department cannot make
a blanket determination based solely on
generalizations without context that
such situations will always constitute
an exceptional circumstance because
each case is different and considered on
its own merits. Moreover, the credibility
of such assertions will always be at
issue because they provide an exception
to the general rule, and it is difficult, if
not impossible, for the Department to
make generalized credibility
determinations in a rulemaking. Rather,
the Department believes that the
definition established by the rule is
71 For instance, the Department notes that
individuals may receive treatment for a variety of
mental health conditions—e.g., obstructive sleep
apnea hypopnea; caffeine intoxication; tobacco
withdrawal; gambling disorders—that are not
normally associated with grounds for asylum and
would ordinarily not be considered exceptional
circumstances. See American Psychiatric
Association, Diagnostic and Statistical Manual of
Mental Disorders (DSM–5) (5th ed. 2013).
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appropriate and determinations
regarding which facts may meet the
standard are more appropriately made
on a case-by-case basis by an
immigration judge.
Finally, in response to other
commenters’ concerns, the Department
notes that the definition of exceptional
circumstances is not limited to
circumstances faced by aliens. Although
the rule provides examples of
exceptional circumstances that may
affect the alien, which the Department
excepts will be the most common
situation, the rule explicitly states that
exceptional circumstances are those
‘‘beyond the control of the parties or the
immigration court.’’ 8 CFR 1003.10(b)
(final rule) (emphasis added).
Consequently, exceptional
circumstances may involve those
affecting DHS, an immigration judge, or
the alien.
6. Retroactivity
Comment: Several commenters were
concerned with the rule’s silence on the
issue of retroactive applicability.
Commenters asserted that the rule
should not apply to anyone whose latest
entry into the United States was prior to
the rule’s effective date or to any case
where an NTA has been filed.
Commenters also urged the Department
to explicitly specify that the rule does
not have any retroactive effect or, in the
alternative, specifically identify the
individuals and claims to which the
rule would apply.
Commenters believed that applying
the rule retroactively would create
waste, uncertainty, and inefficiency in
the immigration court system and
overburden DHS. For example,
commenters stated that DHS trial
attorneys, immigration judges, court
staff, and asylum officers would be
immediately overwhelmed if they were
forced to adjudicate all current pending
cases within the rule’s 180-day
timeframe. Moreover, commenters noted
that work may need to be repeated to
conform to the rule’s new evidentiary
standards. Commenters raised concerns
that court staff would have to spend an
inordinate amount of unnecessary hours
going through recently submitted I–589
forms that have not yet been deemed
complete to see whether every box is
filled.
Moreover, commenters claimed that
thousands of asylum seekers have relied
on and structured their lives around the
current asylum system and would be
seriously harmed if the rule was applied
retroactively. For example, commenters
pointed out that many asylum seekers
have spent significant amounts of
money on legal representation to
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81745
prepare and file asylum applications
that, according to commenters, would
be unprovable if the rule is applied
retroactively. Furthermore, commenters
asserted that asylum seekers likely
would have made different decisions
when pursuing immigration relief had
they known the rules would change
before their claims were adjudicated.
Commenters stated that the Department
failed to adequately consider such
reliance interests on the current legal
structure. Several commenters were also
specifically concerned with the impact
that retroactivity would have on pro se
asylum seekers.
Furthermore, commenters stated that
applying the rule retroactively would
violate both the APA and aliens’ due
process rights. In addition, commenters
asserted that the rule’s retroactive
application would conflict with
congressional intent.
Other commenters questioned
whether the 180-day asylum
adjudication deadline provisions apply
retroactively to pending cases.
Commenters stated that the rule would
create difficulties if applied
retroactively because large numbers of
pending cases would need to be
advanced at the same time.
Alternatively, commenters stated that
prospective application of the rule
would result in existing cases being
indefinitely delayed as new asylum
applications are required to be
adjudicated within 180 days of filing.
Response: The Department recognizes
that the potential retroactivity of the
rule was not clear in the NPRM. To the
extent that the rule changes any existing
law, the Department intends to apply it
prospectively to apply to all asylum
applications—as well as applications for
statutory withholding of removal and
protection under the CAT regulations
where applicable—that are filed 72 on or
after the rule’s effective date and, for
purposes of the 15-day filing deadline,
to all proceedings initiated under 8 CFR
1208.2(c) on or after the rule’s effective
date.
To the extent that the rule merely
codifies existing law or authority,
however, it will apply to pending cases.
For example, the provisions of the rule
incorporating section 208(d)(5)(A)(iii) of
the Act, 8 U.S.C. 1158(d)(5)(A)(iii), into
the regulations are simply adoptions of
existing law. In fact, as statutory
provisions in effect for decades, the
Department has already been applying
them to asylum cases, independently of
72 For purposes of the 30-day correction period
for an incomplete or deficient asylum application,
this rule will apply to any asylum application that
is attempted to be filed on or after the effective date.
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the rule.73 Accordingly, they do not
have an impermissible retroactive effect
applied to pending cases. See Sterling
Holding Co., LLC, 544 F.3d at 506
(‘‘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)).
Similarly, the dictates of Matter of S–
M–J– and applicable case law, e.g., 85
FR at 59695, regarding an immigration
judge’s authority to submit evidence
and develop the record are pre-existing
authorities that are merely incorporated
into the regulations by this rule.
Accordingly, the provisions
incorporating that authority also apply
to pending cases. In fact, as with section
208(d)(5)(A)(iii) of the Act, 8 U.S.C.
1158(d)(5)(A)(iii), the Department has
already been applying these principles
to asylum cases independently of this
rule.
Otherwise, the Department declines to
adopt commenters’ assertions about
potential implications of the rule’s
application to pending cases because
those comments are wholly speculative
due to the case-by-case and factintensive nature of many asylum
adjudications. See Home Box Office, 567
F.2d at 35 n.58 (‘‘In determining what
points are significant, the ‘arbitrary and
capricious’ standard of review must be
kept in mind . . . Moreover, comments
which themselves are purely
speculative and do not disclose the
factual or policy basis on which they
rest require no response. There must be
some basis for thinking a position taken
in opposition to the agency is true.’’).
Moreover, as noted, the Department is
applying much of the rule
prospectively, and the provisions that
are not prospective are already
applicable to pending cases through
either the Act itself or binding
precedent. Thus, the alleged underlying
factual premise of the commenters’
concerns is erroneous.
73 The Department recognizes that the precise
regulatory definition of ‘‘exceptional
circumstances’’ in 8 CFR 1003.10(b) for purposes of
section 208(d)(5)(A)(iii) of the Act, 8 U.S.C.
1158(d)(5)(A)(iii), is new. Accordingly, that precise
definition will apply only to asylum applications
filed on or after the effective date of the rule, even
though the provisions of section 208(d)(5)(A)(iii) of
the Act, 8 U.S.C. 1158(d)(5)(A)(iii), continue to
apply to all asylum applications currently pending
that were filed on or after April 1, 1997.
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7. Miscellaneous
a. Independent Immigration Courts
Comment: Commenters generally
expressed concerns that the rule
undermines the independence of the
immigration courts from political or
other inappropriate influence. At least
one commenter stated that the rule
highlighted the need for the
immigration courts and immigration
judges to be ‘‘independent’’ and outside
the executive branch.
Response: These commenters’
recommendations are both beyond the
scope of this rulemaking and the
Department’s authority. Congress has
provided for a system of administrative
hearings for immigration cases, and the
Department believes that system should
be maintained. See generally INA 240,
8 U.S.C. 1229a (establishing
administrative procedures for removal
proceedings); 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. 1
(2018) (written response to Questions
for the Record of James McHenry,
Director, Executive Office for
Immigration Review) (‘‘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.’’). Only Congress has the
authority to create a new Article I court
or other framework for the adjudication
of immigration cases.
Moreover, the Department reiterates
that immigration judges already exercise
‘‘independent judgment and discretion’’
in deciding cases, 8 CFR 1003.10(b), and
are prohibited from considering
political influences in their decisionmaking, Ethics and Professionalism
Guide for Immigration Judges, sec. VIII
(‘‘An Immigration Judge should not be
swayed by partisan interests or public
clamor.’’) (Jan. 26, 2011). Thus, contrary
to commenters’ assertions, immigration
judges are already independent
adjudicators who do not render
decisions based on political influence or
political interests. As commenters’
claims are unfounded in law or practice
and well beyond the scope of this
rulemaking, the Department declines to
base revisions to the rule on them.
b. Requests for Data
Comment: Multiple commenters
included specific requests for further
information or data points together with
their comments. For example, one
commenter requested, inter alia, the
‘‘[n]umber of successful asylum claims
as a percentage of total asylum claims
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filed, broken down by immigration
court, broken down by represented v.
pro se applicants.’’
Response: The Department believes
that it is has provided the relevant
needed justifications and explanations
for this rule in both the preamble to the
proposed rule and the discussion above.
To the extent commenters seek further
specific information, the Department
first notes that raw data from EOIR’s
case management database is available
online, EOIR, FOIA Library: EOIR Case
Data (Nov. 12, 2020), available at
https://www.justice.gov/eoir/foialibrary-0, and that EOIR maintains a
number of publicly-available statistics
and reports, including those related to
asylum applications, see EOIR, EOIR
Workload and Adjudication Statistics
(Oct. 30, 2020), available at https://
www.justice.gov/eoir/workload-andadjudication-statistics. The Department
also reminds commenters of the ability
to submit requests to the Department
pursuant to the Freedom of Information
Act (FOIA). Such requests should be
submitted to the EOIR Office of General
Counsel: U.S. Department of Justice,
Executive Office for Immigration
Review, Office of General Counsel—
FOIA Service Center, 5107 Leesburg
Pike, Suite 2150, Falls Church, VA
22041; Email address:
EOIR.FOIARequests@usdoj.gov; FOIA
Public Liaison: Crystal Souza;
Telephone: 703–605–1297.
Further information regarding EOIR’s
FOIA request procedures is available on
the EOIR website at: https://
www.justice.gov/eoir/freedominformation-act-foia.
8. Concerns With Regulatory
Requirements
Comment: Commenters generally
expressed concern that the Department
did not comply with Executive Orders
12866 and 13563 because the
Department did not adequately consider
the costs and possible alternatives to the
provisions in the rule due to the
significance of many of the rule’s
provisions. For example, commenters
asserted that the rule’s effects on filing
deadlines, the availability of
continuances, and evidentiary
submissions would in fact impact aliens
in proceedings, particularly pro se
individuals, and immigration
practitioners, contrary to the
Department’s assertions in the proposed
rule.
Similarly, commenters disagreed with
the Department’s assertion, pursuant to
the Regulatory Flexibility Act
requirements, that the rule would ‘‘not
have a significant economic impact on
a substantial number of small entities’’
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and that the rule only regulates
individuals and not small entities. 85
FR at 59697. For example, commenters
stated 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 law
firms or other organizations that appear
before EOIR. Commenters compared the
rule to other recent proposed rule where
the Department acknowledged the effect
on practitioners,74 which the
commenters stated is further evidence of
the rule’s effect.
At least one commenter argued that
the rule should be considered a ‘‘major
rule’’ under the Congressional Review
Act (‘‘CRA’’) because the rule’s effect
will exceed the $100 million threshold.
The commenter explained that the rule’s
economic effect would result from
increased DHS detention costs due to
increased application rejections, effects
on reduced employment authorization
availability, and increased costs to
government agencies or subsidized
entities that administer social services
programs.
Response: The Department reiterates
its response to similar comments
regarding the rule’s alleged effects on
particular groups, supra, and adds the
following further response. Overall, the
Department disagrees with commenters’
contention that it did not comply with
Executive Orders 12866 and 13653. The
Department considered all costs and
possible alternatives to the provisions in
the rule, and the fact that the
Department did not adopt an alternative
suggested by commenters—or did not
retain the status quo—does not mean
that such alternatives were not
considered.
As noted in the NPRM, the
Department believes that the rule will
provide a significant net benefit by
allowing for the expeditious and
efficient resolution of asylum cases. 85
FR at 59698. These benefits will ensure
that the Department’s case volume does
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,
requesting continuances, or presenting
evidence in immigration court.
74 See,
e.g., 85 FR at 52491.
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Moreover, the rule is not imposing any
new costs on asylum seekers.
Respondents are already required to
submit completed asylum applications
in order to have them adjudicated, and
immigration judges already have the
authority to set deadlines. Additionally,
any costs imposed on attorneys or
entities will be minimal and limited to
the time it will take to become familiar
with the rule.75 Immigration
practitioners are already subject to
professional responsibility rules
regarding workload management, 8 CFR
1003.102(q)(1), and are already
accustomed to preparing and filing
documents related to asylum claims
according to deadlines established by
immigration judges. Further, the
Department notes that attorneys have
been aware of the 180-day adjudication
deadline for asylum applications for
over two decades. Finally, the generally
prospective application of the rule—
other than the parts that are already
established by statute or precedent and
under which practitioners have been
practicing for over 20 years—further
diminishes the already-minimal effect of
the rule on practitioners, as no
practitioners will be required to
reevaluate any cases or arguments that
they are currently pursuing.
The Department also rejects 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
Department is 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)
75 As discussed, supra, substantial parts of the
rule merely incorporate existing law, including
principles enshrined in statute or binding
precedent. The new portions include: A new filing
deadline for aliens in proceedings under 8 CFR
1208.2(c), a new deadline for returning asylum
applications rejected as incomplete or deficient, a
new definition of ‘‘exceptional circumstances’’ for
purposes of section 208(d)(5)(A)(iii) of the Act, 8
U.S.C. 1158(d)(5)(A)(iii), and clarification of the
evidentiary status of government and nongovernment reports. None of what is new should
require an extensive amount of time to review or
understand by practitioners who are already
experienced at meeting deadlines, correcting
incomplete applications, and arguing both whether
a particular circumstance meets the definition of an
exceptional circumstance and the weight that an
adjudicator should accord to various evidentiary
submissions.
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81747
(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, no commenters on this point
acknowledged or recognized that the
Department reached a similar
conclusion in 1997 involving a far more
sweeping and comprehensive
rulemaking regarding asylum
adjudications. See Inspection and
Expedited Removal of Aliens; Detention
and Removal of Aliens; Conduct of
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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 far less significant in
scope than the 1997 rulemaking, and
part of the rule simply incorporates
principles that are already in effect
through statutory enactment or binding
precedent. Moreover, this final rule is
similar to previous rules, 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.76 The
Department thus believe that the
experience of implementing prior rules
supports its 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.
The rule does not limit in any way the
ability of practitioners to accept cases,
manage dockets, or assess fees. Nothing
in the rule directly, or indirectly,
regulates practitioners or entities; rather,
76 The Department’s position for decades has been
that for purposes of the RFA and rulemakings
related to EOIR proceedings, rulemakings which
directly regulate aliens—rather than directly
regulating practitioners—do not regulate small
entities. See, e.g., Powers and Duties of Service
Officers; Availability of Service Records, 51 FR
2895 (Jan. 22, 1986) (proposed rule for changes to
EOIR’s fee schedule for appeals and motions and
stating, ‘‘In accordance with 5 U.S.C. 605(b), the
Attorney General certifies that the rule will not
have a significant economic impact on a substantial
number of small entities.’’) and 51 FR 39993, 39994
(Nov. 4, 1986) (final rule adopting in pertinent part
the proposed changes to the fee schedule and
maintaining the position that changes to the fee
schedule will not have a significant impact on a
substantial number of small entities). Even when
the Department has directly regulated practitioners,
it has found no significant impact on a substantial
number of small entities when the rule is simply
similar to existing regulatory procedures. See, e.g.,
Professional Conduct for Practitioners—Rules and
Procedures, and Representation and Appearances,
73 FR 76914, 76922 (Dec. 18, 2008) (‘‘The Attorney
General, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this
regulation and, by approving it, certifies that this
rule will not have a significant economic impact on
a substantial number of small entities. This rule
affects only those practitioners who practice
immigration law before EOIR. This rule will not
affect small entities, as that term is defined in 5
U.S.C. 601(6), because the rule is similar in
substance to the existing regulatory process.’’). The
Department is unaware of any reasonable dispute or
challenge to this longstanding position and finds no
reason to depart from its previous well-established
and accepted view.
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the rule regulates individual asylum
seekers. Practitioners remain free to
accept cases, manage dockets, and
charge fees as they see fit. Moreover,
commenters’ concerns regarding how
practitioners will be affected by the rule
either are wholly speculative due to the
case-by-case nature of asylum
adjudication, fail to account for the
provisions of the rule that have already
been in effect for decades, or are beyond
the scope of this rulemaking. As such,
the Department finds that further
analysis under the Regulatory
Flexibility Act is not warranted. In
short, there is no evidence that the rule
will have a significant impact on small
entities as contemplated by the
Regulatory Flexibility Act or an
applicable executive order.
Furthermore, the Department does not
believe that the rule should be
considered a ‘‘major rule’’ under the
CRA. Assertions that the rule will result
in increased DHS detention costs,
decreased employment authorization
availability, and increased costs to
government agencies and subsidized
entities are purely speculative. In fact,
the rule will likely reduce costs to the
government by allowing for a more
streamlined and efficient asylum
process. Additionally, the commenter
who raised this concern presented no
evidence that the rule would result in
an annual effect on the economy of $100
million or more, and the Department is
aware of no such evidence.
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 Department has reviewed this
rule in accordance with the Regulatory
Flexibility Act and has determined that
it will not have a significant economic
impact on a substantial number of small
entities. 5 U.S.C. 605(b). The rule will
not regulate ‘‘small entities’’ as that term
is defined in 5 U.S.C. 601(6). Only
individuals, rather than entities, are
eligible to apply for asylum, and only
individuals are placed in immigration
proceedings. The Department also
incorporates by reference herein the
discussion in Section II.C.8, supra.
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
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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
This rule would not be a major rule
as defined by section 804 of the
Congressional Review Act. 5 U.S.C.
804(2). This rule will not result in an
annual effect on the economy of $100
million or more; a major increase in
costs or prices; or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets.
E. Executive Orders 12866, 13563 and
13771
The Office of Information and
Regulatory Affairs of the Office of
Management and Budget (‘‘OMB’’) has
determined that this rule is a
‘‘significant regulatory action’’ under
section 3(f) of Executive Order 12866.
Accordingly, the regulation has been
submitted to OMB for review. The
Department certifies that this regulation
has been drafted in accordance with the
principles of Executive Order 12866,
section 1(b), Executive Order 13563, and
Executive Order 13771.
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health, and safety
effects; distributive impacts; and
equity). Executive Order 13563
emphasizes the importance of using the
best available methods to quantify costs
and benefits, reducing costs,
harmonizing rules, and promoting
flexibility.
The Department believes that this rule
will effectuate congressional intent to
resolve cases in an expeditious manner
and will provide significant net benefits
relating to EOIR proceedings by
allowing the agency to resolve cases
more quickly. Section 1(b)(6) of
Executive Order 12866 states that
‘‘[e]ach agency shall assess both the
costs and the benefits of the intended
regulation and, recognizing that some
costs and benefits are difficult to
quantify, propose or adopt a regulation
only upon a reasoned determination
that the benefits of the intended
regulation justify its costs,’’ As of
October 13, 2020, EOIR had over
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580,000 pending cases with an
application for asylum and withholding
of removal, and the median processing
time for a non-detained case with an
asylum application is 1133 days. EOIR,
Adjudication Statistics: Total Asylum
Applications (Oct. 13, 2020), available
at https://www.justice.gov/eoir/page/
file/1106366/download. This rule will
assist EOIR in adjudicating new asylum
cases more efficiently to ensure that this
volume does not increase to an
insurmountable degree. No costs to the
Department or to respondents are
expected. Respondents are already
required to submit complete asylum
applications to have them adjudicated,
and immigration judges already have
authority to set deadlines.
The Department notes that this rule
will not impose any new fees.
Consistent with the treatment of other
applications referred by USCIS that are
renewed in immigration proceedings, an
alien filing a USCIS Form I–589 with
USCIS who is then referred to DOJ for
immigration proceedings would pay the
application fee only once. The
Department’s fees for applications
published by DHS are established in
accordance with 8 CFR 1103.7(b)(4)(ii),
which, in turn, cross-references the DHS
fee schedule. Given the inextricable
nature of the two agencies’ asylum
processes and the benefit of not treating
applicants for substantially similar
benefits differently if they file with DOJ
or with DHS, the Department’s
regulations have included this crossreference for several years, and this rule
does not alter it. The Department is also
not authorized, per regulation, to waive
the application fee for an application
published by DHS if DHS identifies that
fee as non-waivable. 8 CFR 1103.7(c).
The proposed rule does not alter that
regulatory structure.
The Department believes that this rule
will impose only minimal, if any, direct
costs on the public. Any new minimal
cost would be limited to the cost of the
public familiarizing itself with this rule,
though because parts of the rule merely
codify longstanding statutory provisions
and certain precedents or otherwise
reflect longstanding pre-existing
regulatory provisions, there is little new
in the rule that requires familiarization.
An immigration judge’s ability to set
filing deadlines is already established
by regulation, and filing deadlines for
both applications and supporting
documents are already a wellestablished aspect of immigration court
proceedings guided by regulations and
the Immigration Court Practice Manual.
See generally EOIR, Immigration Court
Practice Manual (Nov. 25, 2020),
available at https://www.justice.gov/
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eoir/office-chief-immigration-judge-0.
The rule also does not require an
immigration judge to schedule a merits
hearing at any particular time after the
application is filed, as long as the
application is adjudicated within 180
days absent exceptional circumstances,
which is an existing and longstanding
statutory requirement, see INA
208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii).
Moreover, this rule does not require
that an alien wait until the immigration
judge sets a filing deadline before filing
an application, and an alien remains
free to file his or her asylum application
with the immigration court before the
first hearing. Asylum applications are
frequently filed prior to or at an initial
immigration court hearing already, and
existing regulations allow for
supplementing an initial application as
appropriate, subject to an immigration
judge’s discretion. Most aliens filing
asylum applications in pending
immigration proceedings—85 percent—
have representation, see EOIR, Current
Representation Rates (Oct. 13, 2020),
available at https://www.justice.gov/
eoir/page/file/1062991/download, and
the proposed rule is not expected to
increase any burdens on practitioners,
who are already subject to professional
responsibility rules regarding workload
management, 8 CFR 1003.102(q)(1), and
who are already accustomed to
preparing and filing documents related
to asylum claims according to deadlines
established by an immigration judge.
The Department acknowledges that
establishing a fixed deadline to file an
asylum application in some types of
immigration proceedings may reduce
the availability of prior dilatory tactics
as a matter of strategy, though it also
recognizes that attorneys have been
aware of the 180-day adjudication
deadline for asylum applications for
over two decades and are familiar with
the similar existing 10-day deadline for
alien crewmember asylum applications
in 8 CFR 1208.5(b)(1)(ii).
No costs to the Department are
associated with the rule. The changes do
not create an incentive that would cause
DHS to file more cases and, thus, are not
expected to result in an increase in the
number of cases to be adjudicated by
EOIR. Further, the changes provide
guidance for administrative decisionmaking but do not require immigration
judges to make more decisions or to
prolong immigration proceedings. This
costs of this rule are considered de
minimis for purposes of Executive Order
13771.
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81749
F. Executive Order 13132 (Federalism)
This rule will not have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
G. Executive Order 12988 (Civil Justice
Reform)
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, 44 U.S.C.
chapter 35, and its implementing
regulations, 5 CFR part 1320, all
agencies are required to submit to OMB,
for review and approval, any reporting
requirements inherent in a rule. This
rule may require edits to the USCIS
Form I–589, Application for Asylum
and for Withholding of Removal,
because the filing of an asylum
application now requires submission,
for any required fee, of a fee receipt or
alternate proof of payment. If necessary,
a separate notice will be published in
the Federal Register requesting
comments on the information collection
impacts of this rule and the revised
USCIS Form I–589.
List of Subjects
8 CFR Part 1003
Administrative practice and
procedure, Aliens, Immigration, Legal
services, Organization and functions
(Government agencies).
8 CFR Part 1103
Administrative practice and
procedure, Authority delegations
(Government agencies), Reporting and
recordkeeping requirements.
8 CFR Part 1208
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
8 CFR Part 1240
Administrative practice and
procedure, Aliens.
Accordingly, for the reasons set forth
in the preamble, and by the authority
vested in the Director, Executive Office
for Immigration Review, by the Attorney
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Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations
General Order Number 4910–2020, the
Department amends 8 CFR parts 1003,
1103, 1208, and 1240 as follows:
PART 1003—EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW
1. 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 Pub. L. 105–100, 111 Stat.
2196–200; sections 1506 and 1510 of Pub. L.
106–386, 114 Stat. 1527–29, 1531–32; section
1505 of Pub. L. 106–554, 114 Stat. 2763A–
326 to –328.
2. In § 1003.8, revise paragraph (a)(1)
to read as follows:
■
§ 1003.8
Fees before the Board.
(a) * * *
(1) When a fee is required. Except as
provided in paragraph (a)(2) of this
section and 8 CFR 1208.4(d)(3), a filing
fee prescribed in 8 CFR 1103.7, or a fee
waiver request pursuant to paragraph
(a)(3) of this section, is required in
connection with the filing of an appeal,
a motion to reopen, or a motion to
reconsider before the Board.
*
*
*
*
*
■ 3. In § 1003.10, add three sentences at
the end of paragraph (b) to read as
follows:
§ 1003.10
Immigration judges.
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*
*
*
*
*
(b) * * * In the absence of
exceptional circumstances, an
immigration judge shall complete
administrative adjudication of an
asylum application within 180 days
after the date an application is filed. For
purposes of this paragraph (b) and of
§§ 1003.29 and 1240.6 of this chapter,
the term exceptional circumstances
refers to exceptional circumstances
(such as battery or extreme cruelty to
the alien or any child or parent of the
alien, serious illness of the party or
immigration judge, or serious illness or
death of the spouse, child, or parent of
the alien, but not including less
compelling circumstances) beyond the
control of the parties or the immigration
court. A finding of good cause does not
necessarily mean that an exceptional
circumstance has also been established.
*
*
*
*
*
■ 4. In § 1003.24, revise paragraph (c)(1)
to as follows:
§ 1003.24 Fees pertaining to matters within
the jurisdiction of an immigration judge.
*
*
*
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*
*
17:55 Dec 15, 2020
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(c) * * *
(1) When filed during proceedings.
When an application for relief is filed
during the course of proceedings, the fee
for that application must be paid in
advance to the Department of Homeland
Security in accordance with 8 CFR
103.7 and 8 CFR part 106. The fee
receipt must accompany the application
when it is filed with the immigration
court except as provided by 8 CFR
1208.4(d)(3).
*
*
*
*
*
■ 5. Revise § 1003.29 to read as follows:
§ 1003.29
Continuances.
The immigration judge may grant a
motion for continuance for good cause
shown, provided that nothing in this
section shall authorize a continuance
that causes the adjudication of an
asylum application to exceed 180 days
in the absence of exceptional
circumstances, consistent with section
208(d)(5)(A)(iii) of the Act and
§ 1003.10(b).
■ 6. In § 1003.31, revise paragraphs (b)
and (c) to read as follows:
§ 1003.31 Filing documents and
applications.
*
*
*
*
*
(b) Except as provided in 8 CFR
1240.11(f) and 1208.4(d)(3), all
documents or applications requiring the
payment of a fee must be accompanied
by a fee receipt from the Department of
Homeland Security, an alternate proof
of payment consistent with
§ 1208.4(d)(3), or by an application for
a waiver of fees pursuant to § 1003.24.
Except as provided in § 1003.8(a) and
(c), any fee relating to Immigration
Judge proceedings shall be paid to, and
accepted by, any Department of
Homeland Security office authorized to
accept fees for other purposes pursuant
to § 1103.7(a) of this chapter.
(c) Subject to § 1208.4(d) of this
chapter, the immigration judge may set
and extend time limits for the filing of
applications and related documents and
responses thereto, if any, provided that
nothing in this section shall authorize
setting or extending time limits for the
filing of documents after an asylum
application has been filed that would
cause the adjudication of an asylum
application to exceed 180 days in the
absence of exceptional circumstances,
consistent with section 208(d)(5)(A)(iii)
of the Act and § 1003.10(b). If an
application or document is not filed
within the time set by the immigration
judge, the opportunity to file that
application or document shall be
deemed waived.
*
*
*
*
*
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Frm 00054
Fmt 4701
Sfmt 4700
PART 1103—APPEALS, RECORDS,
AND FEES
7. The authority citation for part 1103
continues to read as follows:
■
Authority: 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; 28 U.S.C. 509, 510.
8. In § 1103.7, revise paragraph (a)(3)
to read as follows:
■
§ 1103.7
Fees.
(a) * * *
(3) All other fees payable in
connection with immigration
proceedings. Except as provided in 8
CFR 1003.8, the Executive Office for
Immigration Review does not accept the
payment of any fee relating to Executive
Office for Immigration Review
proceedings. Instead, such fees, when
required, shall be paid to, and accepted
by, an office of the Department of
Homeland Security authorized to accept
fees, as provided in 8 CFR 103.7(a)(1)
and 8 CFR part 106. The Department of
Homeland Security shall return to the
payer, at the time of payment, a receipt
for any fee paid, and shall also return to
the payer any documents, submitted
with the fee, relating to any immigration
proceeding. The fee receipt and the
application or motion shall then be
submitted to the Executive Office for
Immigration Review except as provided
by 8 CFR 1208.4(d)(3). Remittances to
the Department of Homeland Security
for applications, motions, or forms filed
in connection with immigration
proceedings shall be payable subject to
the provisions of 8 CFR 103.7(a)(2) and
8 CFR part 106.
*
*
*
*
*
PART 1208—PROCEDURES FOR
ASYLUM AND WITHHOLDING OF
REMOVAL
9. 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 Pub. L. 110–
229; Pub. L. 115–218.
10. In § 1208.3, revise paragraph (c)(3)
to read as follows:
■
§ 1208.3
Form of application.
*
*
*
*
*
(c) * * *
(3) An asylum application must be
properly filed in accordance with the
form instructions and with §§ 1003.24,
1003.31(b), and 1103.7(a)(3) of this
chapter, including payment of a fee, if
any, as explained in the instructions to
the application. For purposes of filing
with an immigration court, an asylum
application is incomplete if it does not
include a response to each of the
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Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations
required questions contained in the
form, is unsigned, is unaccompanied by
the required materials specified in
paragraph (a) of this section, is not
completed and submitted in accordance
with the form instructions, or is
unaccompanied by any required fee
receipt or other proof of payment as
provided in § 1208.4(d)(3). The filing of
an incomplete application shall not
commence the period after which the
applicant may file an application for
employment authorization. An
application that is incomplete shall be
rejected by the immigration court. If an
applicant wishes to have his or her
application for asylum considered, he or
she shall correct the deficiencies in the
incomplete application and refile it
within 30 days of rejection. Failure to
correct the deficiencies in an
incomplete application or failure to
timely refile the application with the
deficiencies corrected, absent
exceptional circumstances as defined in
§ 1003.10(b) of this chapter, shall result
in a finding that the alien has
abandoned that application and waived
the opportunity to file such an
application;
*
*
*
*
*
■ 11. In § 1208.4, add paragraph (d) to
read as follows:
§ 1208.4
Filing the application.
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*
*
*
*
*
(d) Filing deadline. (1) For any alien
in asylum-and-withholding-only
proceedings pursuant to § 1208.2(c)(1)
and paragraph (b)(3)(iii) of this section,
the immigration judge shall comply
with the requirements of
§ 1240.11(c)(1)(i) through (iii) of this
chapter and shall set a deadline of
fifteen days from the date of the alien’s
first hearing before an immigration
judge by which the alien must file an
asylum application, which includes an
application for withholding of removal
under section 241(b)(3) of the Act and
protection under §§ 1208.16 through
1208.18. The immigration judge may
extend the deadline for good cause. If
the alien does not file an asylum
application by the deadline set by the
immigration judge, the immigration
judge shall deem the opportunity to file
such an application waived, and the
case shall be returned to the Department
of Homeland Security. For any alien in
proceedings pursuant to § 1208.2(c)(2),
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the immigration judge shall comply
with the requirements of
§ 1240.11(c)(1)(i) through (iii) and shall
set a deadline of fifteen days from the
date of the alien’s first hearing before an
immigration judge by which the alien
must file an application for withholding
of removal under section 241(b)(3) of
the Act, which includes an application
for protection under §§ 1208.16 through
1208.18. The immigration judge may
extend the deadline for good cause. If
the alien does not file an application by
the deadline set by the immigration
judge, the immigration judge shall deem
the opportunity to file such an
application waived, and the case shall
be returned to the Department of
Homeland Security.
(2) If the alien must pay a fee for
submission of the asylum application,
the alien must submit the DHS-issued
fee receipt together with the application
by the deadline set by the immigration
judge in paragraph (d)(1) of this section.
(3) If the alien has paid any required
fee but has not received the fee receipt
from DHS by the deadline set by the
immigration judge, the alien must
instead provide to the immigration court
a copy of proof of the payment to DHS
with the asylum application. The alien
must then submit a copy of the fee
receipt by a new deadline set by the
immigration judge. If the immigration
judge does not set a deadline, the alien
must submit the fee receipt no later than
45 days after the date of filing of the
application.
§ 1208.7
■
[Removed and Reserved]
12. Remove and reserve § 1208.7.
§ 1208.9
[Removed and Reserved]
13. Remove and reserve § 1208.9.
■ 14. In § 1208.12, revise paragraph (a)
to read as follows:
■
§ 1208.12 Reliance on information
compiled by other sources.
(a) In deciding an asylum application,
which includes an application for
withholding of removal under 241(b)(3)
of the Act and protection under
§§ 1208.16 through 1208.18, or in
deciding whether the alien has a
credible fear of persecution or torture
pursuant to § 1208.30, or a reasonable
fear of persecution or torture pursuant
to § 1208.31, an immigration judge may
rely on material provided by the
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Sfmt 9990
81751
Department of State, other Department
of Justice offices, the Department of
Homeland Security, or other U.S.
Government agencies, and may rely on
foreign government and nongovernmental sources if those sources
are determined by the judge to be
credible and the material is probative.
On his or her own authority, an
immigration judge may submit relevant
evidence into the record, if the source
is credible and the evidence is
probative, and may consider it in
deciding an asylum application, which
includes an application for withholding
of removal under section 241(b)(3) of
the Act and protection under §§ 1208.16
through 1208.18, provided that a copy
of the evidence has been provided to
both parties and both parties have had
an opportunity to comment on or object
to the evidence prior to the issuance of
the immigration judge’s decision.
*
*
*
*
*
PART 1240—PROCEEDINGS TO
DETERMINE REMOVABILITY OF
ALIENS IN THE UNITED STATES
15. The authority citation for part
1240 continues to read as follows:
■
Authority: 8 U.S.C. 1103, 1158, 1182,
1186a, 1186b, 1225, 1226, 1227, 1228, 1229a,
1229b, 1229c, 1252 note, 1361, 1362; secs.
202 and 203, Pub. L. 105–100 (111 Stat. 2160,
2193); sec. 902, Pub. L. 105–277 (112 Stat.
2681).
■
16. Revise § 1240.6 to read as follows:
§ 1240.6 Postponement and adjournment
of hearing.
After the commencement of the
hearing, the immigration judge may
grant a reasonable adjournment either at
his or her own instance or, for good
cause shown, upon application by the
respondent or the Department of
Homeland Security, provided that
nothing in this section shall authorize
an adjournment that causes the
adjudication of an asylum application to
exceed 180 days in the absence of
exceptional circumstances, consistent
with section 208(d)(5)(A)(iii) of the Act
and § 1003.10(b) of this chapter.
James R. McHenry III,
Director, Executive Office for Immigration
Review, Department of Justice.
[FR Doc. 2020–27210 Filed 12–15–20; 8:45 am]
BILLING CODE 4410–30–P
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]]>Agencies
[Federal Register Volume 85, Number 242 (Wednesday, December 16, 2020)]
[Rules and Regulations]
[Pages 81698-81751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27210]
[[Page 81697]]
Vol. 85
Wednesday,
No. 242
December 16, 2020
Part V
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 1003, 1103, 1208, et al.
Procedures for Asylum and Withholding of Removal; Final Rule
Federal Register / Vol. 85 , No. 242 / Wednesday, December 16, 2020 /
Rules and Regulations
[[Page 81698]]
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DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003, 1103, 1208 and 1240
[Docket No. EOIR 19-0010; Dir. Order No. 04-2021]
RIN 1125-AA93
Procedures for Asylum and Withholding of Removal
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On September 23, 2020, the Department of Justice (``DOJ'' or
``the Department'') published a notice of proposed rulemaking (``NPRM''
or ``proposed rule'') that proposed to amend the regulations governing
the adjudication of applications for asylum and withholding of removal
before the Executive Office for Immigration Review (``EOIR''),
including outlining requirements for filing a complete application for
relief and the consequences of filing an incomplete application, and
establishing a 15-day filing deadline for aliens applying for asylum in
asylum-and-withholding-only-proceedings, and clarifying evidentiary
standards in adjudicating such applications. Further, the Department
proposed changes related to the 180-day asylum adjudication clock. This
final rule responds to comments received in response to the NPRM and
adopts the NPRM with few changes.
DATES: This rule is effective on January 15, 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. Background
A. Proposed Rule
On September 23, 2020, the Department published an NPRM that would
amend EOIR's regulations regarding the procedures for the submission
and consideration of applications for asylum, statutory withholding of
removal, and protection under the regulations issued pursuant to the
legislation implementing the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (``CAT'').
Procedures for Asylum and Withholding of Removal, 85 FR 59692 (Sept.
23, 2020). Through the NPRM, the Department proposed changes to 8 CFR
parts 1003, 1208, and 1240 regarding completeness requirements for such
an application, and the consequences of filing an incomplete
application. Further, it proposed to establish a 15-day filing deadline
for aliens applying for asylum \1\ in asylum-and-withholding only
proceedings and proposed changes to improve adherence to the statutory
requirement that asylum applications be adjudicated within 180 days
absent exceptional circumstances. The rule also proposed to clarify
evidentiary standards in adjudicating such applications.
---------------------------------------------------------------------------
\1\ An application for asylum is also an application for
statutory withholding of removal, 8 CFR 1208.3(b), and this rule
clarifies that it is also an application for protection under the
CAT. Moreover, as discussed, infra, the final rule contains
provisions related to aliens seeking withholding of removal or CAT
protection--but not asylum--in proceedings under 8 CFR 1208.2(c)(2).
Thus, unless the context indicates otherwise, references to an
asylum application in this final rule encompass references to
statutory withholding of removal and protection under the CAT.
---------------------------------------------------------------------------
B. Authority
The Attorney General is issuing this final rule pursuant to the
authority at sections 103(g) and 208(d)(5)(B) of the Immigration and
Nationality Act (``INA'' or ``the Act''), 8 U.S.C. 1103(g) and
1158(d)(5)(B).
C. Final Rule
Following consideration of the public comments received, discussed
below in section II, the Department has determined to publish the
provisions of the proposed rule as final except for the changes noted
in I.C.1 below and certain technical amendments. The rationale for
those provisions that are unchanged from the proposed rule remains
valid. 85 FR at 59693-97.
1. Filing Deadline for Aliens in Asylum-and-Withholding-Only
Proceedings
The NPRM added a new paragraph (d) to 8 CFR 1208.4, but the final
rule splits that paragraph into three parts, including adding a
clarification regarding fee receipts in response to commenters'
concerns. Paragraph (d)(1) of the final rule mirrors paragraph (d) in
the proposed rule; it establishes an initial 15-day filing deadline for
the submission of Form I-589, Application for Asylum and for
Withholding of Removal, including applications for protection under the
CAT, by aliens in asylum-and-withholding-only proceedings under 8 CFR
1208.2(c)(1) and 1208.4(b)(3)(iii). The 15-day period is calculated
from the date of the alien's first hearing before an immigration judge
and is subject to possible extension for good cause by the immigration
judge. For aliens who do not file the application by the deadline set
by the immigration judge, the immigration judge will deem the alien's
opportunity to submit the application waived in the proceedings pending
before EOIR, and the case will be returned to the Department of
Homeland Security (``DHS'').
If the Form I-589 requires payment of a fee, this final rule at
paragraph (d)(2) maintains the general requirement for applications and
motions before EOIR: The alien must submit a fee receipt together with
the application by the deadline set by the immigration judge. In
response to commenters' concerns, however, this final rule adds a
provision at paragraph (d)(3) to allow flexibility for aliens to meet
the filing deadline when the aliens cannot meet all requirements due to
no fault of their own. Accordingly, if the alien has not yet received a
copy of the fee receipt from DHS in time to meet the Form I-589 filing
deadline, the alien may instead provide the immigration court with a
copy of the payment submitted to DHS when the alien submits his or her
application to EOIR. Aliens who provide this alternative proof of
payment must still provide a copy of the fee receipt. In such an
instance, the fee receipt will be due by the deadline the immigration
judge sets. If the immigration judge does not set a separate deadline
for the submission of the fee receipt, the alien must submit the fee
receipt within 45 days \2\ of the date of filing the associated
application.\3\
---------------------------------------------------------------------------
\2\ The INA states both that a fee may be charged for an asylum
application, INA 208(d)(3), 8 U.S.C. 1158(d)(3), and that the
initial hearing on an asylum application occur within 45 days of
filing the application absent exceptional circumstances, INA
208(d)(5)(A)(ii), 8 U.S.C. 1158(d)(5)(A)(ii). Thus--for an asylum
application that requires a fee--because the application cannot be
filed until the fee is paid and because a hearing cannot occur on
the application until it is filed, the Department finds that the
statutory scheme in INA 208, 8 U.S.C. 1158, contemplates that it is
reasonable to expect an alien to have received a fee receipt within
45 days of filing the asylum application.
\3\ In addition, this final rule adds corresponding cross-
references to 8 CFR 1003.8, 1003.24, 1003.31, and 1103.7 to account
for this exception to the general requirement that any form or
application that requires a fee must be submitted together with the
fee receipt.
---------------------------------------------------------------------------
In response to a recommendation by a commenter, the Department is
also amending 8 CFR 1208.4(d)(1) in the final rule to apply the 15-day
deadline to applications for statutory withholding of removal and
protection under the CAT for aliens in proceedings under 8
[[Page 81699]]
CFR 1208.2(c)(2). The Department sees no reason to distinguish between
aliens subject to proceedings under 8 CFR 1208.2(c)(1) and those
subject to proceedings under 8 CFR 1208.2(c)(2), as both groups are
generally detained. Moreover, the reasons underpinning the application
deadline for 8 CFR 1208.2(c)(1) apply with equal force to proceedings
under 8 CFR 1208.2(c)(2). Accordingly, in response to the
recommendation of at least one commenter, the final rule adopts the
commenter's suggestion and edits the language in 8 CFR 1208.4(d)(1) to
make the 15-day deadline, with the possibility of an extension for good
cause, applicable to aliens in proceedings under 8 CFR 1208.2(c)(2)
seeking statutory withholding of removal or protection under the CAT
regulations.
Finally, the final rule makes a syntax change to the language in 8
CFR 1208.4(d)(1) to clarify that if an alien does not file an
appropriate application by the deadline set by the immigration judge,
the immigration judge shall deem the opportunity to file such an
application waived, and the case shall be returned to DHS. The proposed
rule included the phrase ``for execution of an order of removal'' after
``DHS,'' but that phrasing risks confusion because not every alien in
proceedings under 8 CFR 1208.2(c)(1) is subject to an order of removal.
See, e.g., 8 CFR 1208.2(c)(1)(iii) (VWP applicant for admission who is
denied admission). Accordingly, the final rule deletes that phrase to
make clear that in the circumstances of 8 CFR 1208.4(d)(1), the case
will simply be returned to DHS, and DHS will take whatever subsequent
action it deems appropriate.
2. Requirements for the Filing of an Application
The rule amends 8 CFR 1208.3(c)(3) regarding the requirements for
filing a Form I-589, Application for Asylum and for Withholding of
Removal, and the procedures for correcting errors in filed
applications. These amendments apply to the submission of any Form I-
589 before EOIR, including aliens in removal proceedings under section
240 of the Act, 8 U.S.C. 1229a, aliens in asylum-and-withholding-only
proceedings under 8 CFR 1208.2(c)(1) and 1208.4(b)(3)(iii), and aliens
in withholding-only proceedings under 8 CFR 1208.2(c)(2).
First, the rule specifies that the application must be filed in
accordance with the form instructions and the general requirements for
filings before the immigration court at 8 CFR 1003.24, 1003.31(b), and
1103.7(a)(3), including the payment of any required fee. The rule
provides that an application is incomplete if, in addition to existing
grounds, it is not completed and submitted in accordance with the form
instructions or is unaccompanied by any required fee receipt (or
alternate proof, as necessary).
Second, the rule further revises 8 CFR 1208.3(c)(3) by removing the
current provision that deems an alien's incomplete asylum application
to be complete if the immigration court fails to return the application
within 30 days of receipt. Instead, the rule provides that immigration
courts will reject all incomplete applications. Moreover, the rule adds
a maximum of 30 days from the date of rejection for the alien to
correct any deficiencies in his or her application. Under the rule, an
asylum applicant's failure to re-file a corrected application within
the 30-day time period, absent exceptional circumstances, shall result
in a finding that the alien has abandoned that application and waived
the opportunity to file such an application in the proceedings pending
before EOIR.
Lastly, the rule updates language in 8 CFR 1208.3(c)(3) regarding
incomplete asylum applications and potential work authorization,
changing a reference to the ``150-day period after which the applicant
may file an application for employment authorization'' to remove the
specific time period to ensure that EOIR regulations do not contradict
DHS regulations regarding employment authorization eligibility.
3. Clarification Regarding Immigration Judge Evidentiary Considerations
The rule clarifies what type of external materials an immigration
judge may rely on under 8 CFR 1208.12 when deciding an asylum
application, which includes an application for withholding of removal
and protection under the CAT, or deciding whether an alien has a
credible fear of persecution or torture pursuant to 8 CFR 1208.30, or a
reasonable fear of persecution or torture pursuant to 8 CFR 1208.31.
The rule allows immigration judges to rely on resources provided by the
Department of State, other DOJ offices, DHS, or other U.S. government
agencies. The rule also provides that immigration judges may rely on
foreign government and non-governmental sources when the judge
determines those sources are credible and the material is probative.
Additionally, the rule expands 8 CFR 1208.12 to allow an
immigration judge, on his or her own authority, to submit probative
evidence from credible sources into the record. The immigration judge
may consider such evidence in ruling on an asylum application,
including an application for withholding of removal and protection
under the CAT, so long as the judge has provided a copy to both parties
and both parties have had an opportunity to comment on or object to the
evidence prior to the issuance of the immigration judge's decision.
4. Asylum Adjudication
The rule removes and reserves 8 CFR 1208.7, relating to obtaining
work authorization from DHS, and 1208.9, relating to procedures for
interviews before DHS asylum officers. The rule also amends 8 CFR
1003.10(b) to make clear that, in the absence of exceptional
circumstances, an immigration judge shall complete adjudication of an
asylum application within 180 days after the application's filing date.
The rule amends 8 CFR 1003.10(b) to provide a definition of
``exceptional circumstances'' for purposes of 1003.10(b), 1003.29, and
1240.6, and to clarify that the section's use of the phrase
``exceptional circumstances'' refers to those scenarios that are beyond
the control of the parties or the immigration court.
Furthermore, the rule amends 8 CFR 1003.29 to specify that nothing
in that section authorizes a continuance that causes the adjudication
of an asylum application to exceed 180 days. Similarly, the rule
revises 8 CFR 1003.31 to provide that the section shall not authorize
setting or extending time limits for the filing of documents after an
asylum application has been filed that would cause the adjudication of
an asylum application to exceed 180 days. Consistent with INA
208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii), both of these changes
provide for an exception if exceptional circumstances as defined in 8
CFR 1003.10(b) apply. The rule also revises 8 CFR 1240.6 to include
that the section does not authorize an adjournment that causes the
adjudication of an asylum application to exceed 180 days in the absence
of exceptional circumstances as defined in 8 CFR 1003.10(b).
5. Technical Amendments
The file rule adopts the proposal that any required fee be
submitted by the time of filing, but further provides for cross-
references to both 8 CFR 103.7 and 8 CFR part 106 to prevent confusion
and ensure consistency regardless of how the litigation over the DHS
rule \4\ is resolved.
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\4\ The final rule related to fees charged by USCIS for filing
of an I-589 was preliminarily enjoined by two federal district
courts prior to its effective date. Immigrant Legal Resource Ctr. v.
Wolf, No. 20-cv-05883-JSW, 2020 WL 5798269 (N.D. Cal. Sept. 29,
2020); Nw. Immigrant Rights Project v. U.S. Citizenship &
Immigration Servs., No. 19-3283 (RDM), 2020 WL 5995206 (Oct. 8,
2020). Although this final rule updates cross-references in EOIR's
regulations to DHS's regulations to account for the USCIS rule's
amendments of DHS's regulations, the USCIS fees remain governed by
DHS's previous regulations while the aforementioned injunctions
remain in effect. Because the ultimate resolution of the litigation
challenging the DHS fee rule is unknown, this final rule amends
EOIR's regulations to include cross-references to both the previous
DHS regulations and the new regulations to ensure that the cross-
references do not become inaccurate regardless of how the litigation
is resolved.
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[[Page 81700]]
In addition, this rule provides for technical amendments not
addressed in the proposed rule. It corrects outdated references to
``Service'' to properly reference ``DHS'' in 8 CFR 1001.31(b).
Similarly, it clarifies references to ``withholding of removal'' by
referencing section 241(b)(3) of the INA in order to distinguish that
form of protection from protection under the CAT. Additionally, for
precision, it replaces references to the CAT with reference to 8 CFR
1208.16 through 1208.18. No substantive changes are intended by these
amendments.
D. Effective Date
As noted above, this rule is effective on January 15, 2021.
Further, the Department clarifies herein the rule's mostly
prospective temporal application. The provisions of the rule regarding
the 15-day filing deadline for the submission of asylum applications
apply only to asylum-and-withholding-only proceedings initiated after
the effective date of the final rule. The provisions of the rule
related to the I-589 completeness and filing requirements apply only to
asylum applications submitted after the rule's effective date. Except
as noted below, the provisions of the rule related to immigration judge
evidentiary considerations apply to proceedings of any type initiated
after the rule's effective date.
The rule incorporates the statutory requirement that ``in the
absence of exceptional circumstances, final administrative adjudication
of the asylum application, not including administrative appeal, shall
be completed within 180 days after the date an application is filed.''
INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii). That provision was
enacted nearly 25 years ago and is currently in force. Moreover, EOIR
reiterated its policy to comply with that statutory provision,
including the legal conclusion that ``good cause'' is not synonymous
with ``exceptional circumstances,'' over two years ago. EOIR Policy
Memorandum 19-05, Guidance Regarding the Adjudication of Asylum
Applications Consistent with INA Sec. 208(d)(5)(A)(iii) (Nov. 19,
2018), https://www.justice.gov/eoir/page/file/1112581/download. Thus,
the provisions of the rule relating to INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii) and continuances based on exceptional circumstances,
which are already in effect by both statute and policy, apply to
pending cases. These provisions are simply adoptions of existing law
or, at most, clarifications of existing law. Accordingly, they do not
have an impermissible retroactive effect if applied to pending cases.
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)).
Similarly, the rule incorporates principles established by binding
precedent allowing--if not also requiring, in some instances--an
immigration judge to submit evidence in an asylum adjudication. See 85
FR at 59695 (collecting authorities, including Matter of S-M-J-, 21 I&N
Dec. 722, 729 (BIA 1997) (en banc)). Thus, the provisions of the rule
relating to an immigration judge's submission of evidence, which are
already in effect through binding precedent, apply to pending cases.
These provisions are simply adoptions of existing law or, at most,
clarifications of existing law and, thus, do not have an impermissible
retroactive effect if applied to pending cases. See Sterling Holding
Co., LLC, 544 F.3d at 506.
Additionally, EOIR does not adjudicate--and has never adjudicated--
applications for employment authorization documents (EADs) for aliens
with pending asylum applications; rather, DHS does. 8 CFR 274a.13(a)
(2020). Further, the settlement agreement applicable to the processing
of asylum applications and EAD applications in A.B.T. v. U.S.
Citizenship and Immigration Servs., No. CV11-2108-RAJ (W.D. Wash.)
(``ABT Settlement Agreement'') expired in 2019, and EOIR has already
announced that it will no longer provide aliens or their
representatives with a copy of a 180-Day Asylum EAD Clock Notice. See
EOIR Policy Memorandum 21-02, Withdrawal of Operating Policies and
Procedures Memoranda 13-03 and 16-01 (Nov. 6, 2020). Accordingly, the
provisions of the rule deleting a regulation regarding EAD applications
that is inapplicable to EOIR, 8 CFR 1208.7, will be effective on the
effective date. Finally, and for similar reasons, the provisions of the
rule deleting a regulation regarding asylum officers, 8 CFR 1208.9,
that is inapplicable to EOIR--because asylum officers are employees of
DHS, not EOIR--will be effective on the effective date.
II. Public Comments on the Proposed Rule
A. Summary of Public Comments
The comment period for the proposed rule ended on October 23, 2020.
Of the 2,031 comments received, the majority were from individual and
anonymous commenters. The minority of comments came from non-profit
organizations, law firms, and members of Congress. While some
commenters supported the NPRM, the majority of commenters expressed
opposition to the rule, either in whole or in part.
In general, comments opposing the rule misapprehended its impact;
misstated its contents; failed to recognize that significant portions
of it merely incorporate longstanding law--from either statute or
binding precedent--into the regulations, provided no evidence--other
than isolated and often distinguishable anecdotes--to support broad
claims of particular impacts; made unverified, speculative, and
hypothetical generalizations that do not account for the case-by-case
and individualized decision-making associated with adjudicating asylum
applications; were inconsistent with applicable law, contrary to the
Department's considerable experience in adjudicating asylum
applications, or otherwise untethered to a reasoned basis; lacked an
understanding of relevant law and procedures regarding asylum
application adjudications or the overall immigration system; failed to
engage with the specific reasons and language put forth by the
Department in lieu of broad generalizations or hyperbolic, unsupported
presumptions; or, reflected assertions rooted in the rule's failure to
agree with the commenters' policy preferences rather than the
identification of specific legal deficiencies or other factors the
Department should consider. As the vast majority of comments in
opposition fall within one of these categories, the Department offers
the following general responses to them, supplemented by
[[Page 81701]]
more detailed, comment-specific responses below.\5\
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\5\ Many comments were also inconsistent, both internally and
with other comments. For example, some comments posited that the
rule focused too much on efficiency whereas others argued that the
rule did not promote efficiency at all. Some comments asserted that
immigration judges are ``biased,'' while others suggested that the
Department should allow immigration judges to continue to set
deadlines rather than providing deadlines through rulemaking or
should even promote immigration judges to become judges under
Article I of the Constitution. The Department has addressed all of
these comments individually herein and acknowledges that
inconsistencies make many of the comments even less persuasive.
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In particular, the Department notes that many, if not most,
commenters failed to engage with or acknowledge the existing law that
informed the NPRM, much of which has been in existence for years with
no noted challenges or expressions of concerns. For example, the
provisions incorporating the statutory requirement that ``in the
absence of exceptional circumstances, final administrative adjudication
of the asylum application, not including administrative appeal, shall
be completed within 180 days after the date an application is filed,''
INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii), do not reflect any
novel or recent legal development. That statutory provision was enacted
nearly 25 years ago and is currently in force with no noted challenges
since it was enacted. Moreover, EOIR reiterated its policy to comply
with that statutory provision over two years ago, including the legal
conclusion that ``good cause'' is not synonymous with ``exceptional
circumstances,'' over two years ago. EOIR Policy Memorandum 19-05,
Guidance Regarding the Adjudication of Asylum Applications Consistent
with INA Sec. 208(d)(5)(A)(iii) (Nov. 19, 2018), https://www.justice.gov/eoir/page/file/1112581/download.
Similarly, the rule incorporates principles established by binding
precedent allowing--if not also requiring, in some instances--an
immigration judge to submit evidence in an asylum adjudication. See 85
FR at 59695. In particular, Matter of S-M-J- has been binding for over
20 years, again with no noted challenge to it. Further, the rule, in
multiple ways, reflects influence from longstanding existing
regulations that have also not been the subject of challenge or
concern. See, e.g., 8 CFR 1208.5(a) (``Where possible, expedited
consideration shall be given to [adjudicating asylum] applications of
detained aliens.''); 8 CFR 1208.5(b) (``An alien crewmember shall be
provided the appropriate application forms and information required by
section 208(d)(4) of the Act and may then have 10 days within which to
submit an asylum application to the district director having
jurisdiction over the port-of-entry. The district director may extend
the 10-day filing period for good cause.''); 8 CFR 1208.3(c)(3) (``An
asylum application that does not include a response to each of the
questions contained in the Form I-589, is unsigned, or is unaccompanied
by the required materials specified in paragraph (a) of this section is
incomplete.''). Commenters did not persuasively explain--if they
attempted to explain at all--why these well-established legal
principles are inappropriate bases for the rule.
Most commenters failed to acknowledge the benefits of the rule,
such as expeditious consideration of meritorious asylum claims by
detained aliens. Indeed, commenters did not explain why it would be
preferable for the Department not to expedite consideration of asylum
claims, particularly those made by detained aliens, given the risks of
faded memories and evidence degradation that adjudicatory delays
invite. Relatedly, few, if any, commenters acknowledged or addressed
the issue of how a delay in adjudication also makes it more difficult
for aliens to obtain pro bono representation. See, e.g., Human Rights
First, The U.S. Immigration Court, https://www.humanrightsfirst.org/sites/default/files/HRF-Court-Backlog-Brief.pdf (last visited Dec. 4,
2020) (hereinafter ``HRF Report'') (``In a February 2016 survey
conducted by Human Rights First of 24 pro bono coordinators at many of
the nation's major law firms, nearly 75 percent of pro bono
professionals indicated that delays at the immigration court are a
significant or very significant negative factor in their ability to
take on a pro bono case for legal representation before the court.'').
In short, commenters failed to put forth a persuasive argument for why
the Department should not expeditiously consider asylum applications,
especially for detained aliens with meritorious claims,\6\ and the
Department is unaware of any such argument that would outweigh the
benefits in that regard in the rule.
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\6\ To the extent that commenters tacitly acknowledged that most
asylum claims are not meritorious and, thus, that such claims should
not be expedited in order to allow aliens additional time in the
United States, the Department finds such an argument hardly
compelling. The Department recognizes and agrees with the Supreme
Court's observation that ``as a general matter, every delay works to
the advantage of the deportable alien who wishes merely to remain in
the United States.'' INS v. Doherty, 502 U.S. 314, 323 (1992). Any
rationale for encouraging or supporting the dilatory adjudication of
cases both is both inherently unpersuasive and wholly outweighed by
the importance of timeliness and fairness--especially to detained
aliens with meritorious claims--in adjudicating asylum applications.
---------------------------------------------------------------------------
Most, if not all, commenters opposed to the rule appeared to view
its procedural changes wholly through a results-oriented lens such that
a proposal that commenters speculatively believed would cause aliens to
``win'' fewer cases was deemed objectionable, even without evidence
that such a result would follow. Such a view appeared to have been
based on a tacit belief that aliens were entitled to specific outcomes
in specific cases, notwithstanding the relevant evidence or law
applicable to a case, and that the rule inappropriately required
adjudicators to maintain impartiality in adjudicating cases rather than
continuing to provide what commenters viewed as favorable treatment
toward aliens. To the extent that commenters simply disagree as a
policy matter that asylum cases should be adjudicated in a timely
manner, Doherty, 502 U.S. at 323 (``As a general matter, every delay
works to the advantage of the deportable alien who wishes merely to
remain in the United States.''), or that the Department should take
measures, consistent with due process, to ensure the timely completion
of such cases, the Department finds such policy disagreements utterly
unpersuasive.
Many, if not all, commenters failed to acknowledge the reality that
no one rulemaking can cover every conceivable adjudicatory scenario.
EOIR currently has over 570,000 asylum applications pending
adjudication, and each one is subject to adjudication based on its own
individual facts. Consequently, the Department cannot rule out the
possibility that at least one claim will present an issue not
contemplated by the rule, including a unique scenario posited by a
commenter. Nevertheless, the rule is expected to cover most
applications and contains appropriate safeguards--e.g., extension of a
filing deadline for good cause--that should adequately address any
unique or unexpected situations.
Relatedly, many commenters criticized the Department for not
providing more quantitative data in the NPRM, yet did not explain what
type of data that is actually tracked would be appropriate,
particularly to address unique or hypothetical scenarios put forth by
commenters. The level of granularity presumed by commenters for
hundreds of thousands of asylum applications does not exist, and even
if it did, the Department could not be
[[Page 81702]]
expected to consider every speculative possibility presented by
commenters. Moreover, the portions of the rule incorporating existing
law--e.g., the 180-day adjudication deadline, the authority of an
immigration judge to submit evidence--are not dependent on data because
the stem from already-binding authority.
Many commenters raised questions about the possibility of the
Department issuing multiple final rules related to asylum in 2020. The
Department acknowledges that it has proposed and finalized multiple
rules in 2019 and 2020 but categorically rejects any assertions that it
has done so for any sort of nefarious purpose. Each of the Department's
rules stands on its own, however, and each includes explanations of its
basis and purpose, while allowing for public comment. Further, the
interplay and impact of all of the rules is speculative at the present
time, particularly due to ongoing and expected future litigation, which
may allow all, some, or none of the rules to ultimately take effect.
Nevertheless, to the extent commenters noted some potential overlap or
joint impacts, the Department regularly considers the existing and
potential legal framework when a specific rule is proposed or
implemented.
Regarding the interplay of this rule and other recent proposed and
finalized rules, the Department notes that commenters generally focused
on the Department's proposed joint rule with DHS from June 2020,
Procedures for Asylum and Withholding of Removal; Credible Fear and
Reasonable Fear Review, 85 FR 36264 (June 15, 2020). According to
commenters, that proposed rule, if implemented, would result in a
significant number of aliens being subject to proceedings under 8 CFR
1208.2(c) and, thus, subject to the new 15-day filing deadline under
this rule.\7\ Although the Department does not dispute that by
finalizing that proposed rule, there will be an additional category of
aliens subject to proceedings under 8 CFR 1208.2(c) and, thus, subject
to the new filing deadline under this rule, it does note that
commenters' suggestion of the size of that category is both grossly
speculative--because the number would depend on variables that cannot
be accurately predicted such as new inflows of illegal immigration, the
validity of any claims made by aliens in those inflows subject to the
credible fear screening process, and DHS's exercise of prosecutorial
discretion--and wholly outside the Department's control.
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\7\ Commenters also posited that DHS's expansion of expedited
removal authority would further increase the number of affected
aliens subject to this rule. See Designating Aliens for Expedited
Removal, 84 FR 35409 (July 23, 2019); see also Make the Rd. New York
v. Wolf, 962 F.3d 612, 618 (D.C. Cir. 2020). As discussed, infra,
the size of the population affected has little relationship to the
import of the rule, and even if the size were material to some
degree of operational impact, the benefits of the rule far outweigh
any such impacts.
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Moreover, commenters did not explain why the size of the population
subject to proceedings under 8 CFR 1208.2(c) matters for purposes of
the rule. Regardless of the size of the population subject to a 15-day
filing deadline, the Department, DHS, and the asylum applicant all have
a strong interest in the expedited consideration of an asylum claim,
particularly where that claim is a meritorious one put forth by a
detained alien. Further, even if the size of the population of aliens
subject to 8 CFR 1208.2(c) mattered to the degree alleged by
commenters, the Department has determined, as a matter of policy, that
the benefits of the rule as a whole--e.g., better effectuation of
statutory directives, the expedited consideration of meritorious asylum
claims, and the elimination of provisions that are immaterial to EOIR--
far outweigh any negative impacts that it would, including in tandem
with other rules.
Additionally, commenters who raised the issue of the interplay
between this rule and the June 2020 proposed rule failed to acknowledge
that this rule would actually provide an additional safeguard to that
rule to ensure that an alien's asylum claims is not inadvertently
pretermitted. See 85 FR at 36277; see also note 47, infra. For all of
these reasons--and as discussed in more detail below--the Department
simply finds commenters' concerns about this rule in connection with
other proposed and finalized rules to be unavailing.
Relatedly, regarding the 15-day filing deadline in particular,
many, if not most commenters, failed to acknowledge that the 15-day
deadline in the rule for filing an asylum application applies
principally to detained aliens. That provision applies to aliens in
proceedings under 8 CFR 1208.2(c), and those categories are usually
subject to detention unless paroled from custody by DHS. The categories
of aliens described in 8 CFR 1208.2(c) encompass aliens subject to
inspection and detention as applicants for admission, INA 232(a),
235(a)(3) and (d)(2), 8 U.S.C. 1222(a), 1225(a)(3) and (d)(2); 8 CFR
235.3(a), including those who are later denied admission, and aliens
who have entered the United States and subsequently become subject to
removal through an administratively final removal order issued by DHS
outside of immigration proceedings conducted by the Department, INA
241(a)(2), 8 U.S.C. 1231(a)(2). In either case, however, the Department
lacks authority to either parole the aliens into the United States--
and, thus, order them as applicants for admission released from DHS
custody--or to order the release of aliens subject to a final order of
removal. Consequently, unless released by DHS, such aliens would be
subject to custody during the adjudication of their asylum
applications.
More specifically, alien crewmembers described in 8 CFR
1208.2(c)(1)(i)(A) who are applicants for a landing permit are subject
to detention during inspection. INA 232(a), 235(a)(3) and (d)(2),
254(a)(1), 8 U.S.C. 1222(a), 1225(a)(3) and (d)(2), 1284(a)(1); 8 CFR
235.3(a), 252.1(a). Alien crewmembers described in 8 CFR
1208.2(c)(1)(i)(B) who have been refused permission to land are also
subject to detention. INA 254(a)(2), 8 U.S.C. 1284(a)(2). Alien
crewmembers described in 8 CFR 1208.2(c)(1)(i)(C) who have been granted
permission to land are subject to detention and removal if their
landing permits are subsequently revoked.\8\ INA 252(b), 8 U.S.C.
1282(b); 8 CFR 252.2.
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\8\ Landing permits are typically valid for 29 days. 8 CFR
252.1(d). An alien crewman who applies for asylum during that 29-day
period expresses an intent not to depart on the vessel or aircraft
on which the crewman arrived and, thus, triggers the possibility of
revocation of the crewman's landing permit. INA 252(b), 8 U.S.C.
1282(b); cf. 8 CFR 1208.5(b)(1) (``If the alien [crewman] makes such
fear known to an official while off such conveyance, the alien shall
not be returned to the conveyance but shall be retained in or
transferred to the custody of the [DHS].'').
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Alien stowaways described in 8 CFR 1208.2(c)(1)(ii) found to have a
credible fear of persecution or torture are subject to detention
pursuant to INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). Alien
applicants for admission under the Visa Waiver Program (``VWP'')
described in 8 CFR 1208.2(c)(1)(iii) are subject to detention during
inspection, like all arriving aliens. INA 232(a), 235(a)(3) and (d)(2),
8 U.S.C. 1222(a), 1225(a)(3) and (d)(2); 8 CFR 235.3(a). An alien
admitted under the VWP who is found to be deportable is ordered
removed. 8 CFR 217.4(b).\9\ Accordingly, an alien admitted under the
VWP described in 8 CFR 1208.2(c)(1)(iv) is subject to detention as an
alien with an order of removal. INA 241(a)(2), 8 U.S.C. 1231(a)(2).\10\
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\9\ As a condition of participation in the VWP, an alien agrees
to waive any right to contest any removal action against the alien,
other than through an application for asylum, which would
necessarily include detention. INA 217(b)(2), 8 U.S.C. 1187(b)(2).
\10\ Aliens subject to the Guam-Commonwealth of the Northern
Mariana Islands VWP are subject to similar procedures regarding
refusal of admission and removal as aliens subject to the regular
VWP. 8 CFR 212.1(q)(8). Consequently, aliens described in 8 CFR
1208.2(c)(1)(vii) and (viii) are subject to detention on the same
bases as aliens described in 8 CFR 1208.2(c)(1)(iii) and (iv).
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[[Page 81703]]
Alien applicants for admission with an S visa described in 8 CFR
1208.2(c)(1)(vi) are subject to detention during inspection, like all
arriving aliens. INA 232(a), 235(a)(3) and (d)(2), 8 U.S.C. 1222(a),
1225(a)(3) and (d)(2); 8 CFR 235.3(a). An alien admitted as an S
nonimmigrant described in 8 CFR 1208.2(c)(1)(vi) who is subsequently
ordered removed, 8 CFR 236.4(b), is also subject to detention. INA
241(a)(2), 8 U.S.C. 1231(a)(2).\11\
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\11\ As a condition of being granted S nonimmigrant status, an
alien waives any right to contest, other than an application for
withholding of removal, any removal action against the alien,
including detention, before the alien obtains lawful permanent
resident status. INA 214(k)(3)(C), 8 U.S.C. 1184(k)(3)(C); 8 CFR
236.4(a).
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Aliens described in 8 CFR 1208.2(c)(1)(v) are those ordered removed
under INA 235(c), 8 U.S.C. 1225(c). Such aliens are subject to
detention as aliens with final orders of removal. INA 241(a)(2), 8
U.S.C. 1231(a)(2). Similarly, aliens described in 8 CFR 1208.2(c)(2)
are those subject to removal orders, either through reinstating a prior
order, INA 241(a)(5), 8 U.S.C. 1231(a)(5), or through the issuance of
an administrative order of removal as an alien convicted of an
aggravated felony, INA 238(b), 8 U.S.C. 1228(b). Such aliens are
subject to detention as aliens with orders of removal. INA 241(a), 8
U.S.C. 1231(a).
The June 2020 proposed joint rule on asylum procedures was recently
finalized without change to the provision cited by commenters. See
Procedures for Asylum and Withholding of Removal; Credible Fear and
Reasonable Fear Review, signed by the Attorney General and the Acting
Secretary of Homeland Security on December 2, 2020. The Department
expects that there will be a litigation challenge to that rule, just as
there has been to most of its recent immigration-related
rulemakings.\12\ Thus, the Department cannot predict definitively
whether that rule will go into effect as finalized.
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\12\ The Department recognizes 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 it is aware that
litigation will likely follow this rule, just as it has others of a
similar nature. 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 Department is 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)). Nevertheless, the
Department does not believe that the inevitability of litigation
over contested issues is a sufficient basis to preclude the exercise
of statutory and regulatory authority in furtherance of the law and
the policies of the Executive Branch.
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Nevertheless, even if that joint rule goes into effect and aliens
who receive a positive credible fear determination are placed in
proceedings under 8 CFR 1208.2(c), 85 FR at 36267, such aliens would
still be subject to detention unless paroled by DHS. See Jennings v.
Rodriguez, 138 S. Ct. 830, 842 (2018) (``Read most naturally, [8
U.S.C.] Sec. Sec. 1225(b)(1) and (b)(2) thus mandate detention of
applicants for admission until certain proceedings have concluded.
Section 1225(b)(1) aliens are detained for ``further consideration of
the application for asylum,'' and Sec. 1225(b)(2) aliens are in turn
detained for ``[removal] proceeding[s].'' Once those proceedings end,
detention under Sec. 1225(b) must end as well. Until that point,
however, nothing in the statutory text imposes any limit on the length
of detention. And neither Sec. 1225(b)(1) nor Sec. 1225(b)(2) says
anything whatsoever about bond hearings.''); see also Matter of M-S-,
27 I&N Dec. 476 (A.G. 2018) (``The [INA] provides that, if an alien in
expedited proceedings establishes a credible fear, he `shall be
detained for further consideration of the application for asylum.' . .
. There is no way to apply those provisions except as they are
written--unless paroled, an alien must be detained until his asylum
claim is adjudicated. The Supreme Court recently held exactly that,
concluding that section 235(b)(1) `mandate[s] detention throughout the
completion of [removal] proceedings' unless the alien is paroled.''
(emphasis added) (citations omitted) (quoting Jennings, 138 S. Ct. at
844-45)).\13\
---------------------------------------------------------------------------
\13\ The Ninth Circuit has affirmed a preliminary injunction
restoring the availability of bond hearings for aliens who have
received positive credible fear determinations, though that decision
was premised on a putative constitutional due process right to a
bond hearing rather than the statutory interpretation of INA
235(b)(1), 8 U.S.C. 1225(b)(1), advanced by the Supreme Court in
Jennings and the Attorney General in Matter of M-S-. See Padilla v.
Immig. And Cust. Enforc., 953 F.3d 1134 (9th Cir. 2020), petition
for cert. filed, Dkt. 20-234 (Aug. 27, 2020). As noted, supra, the
Department also expects the rulemaking referenced by commenters,
which places aliens who receive a positive credible fear
determination in proceedings under 8 CFR 1208.2(c), to be challenged
through litigation. The Department cannot predict the outcomes of
either litigation, but the possible outcomes would not affect this
final rule or the Department's consideration of comments regarding
it. If the provisions of the joint rulemaking referenced by
commenters are finalized as proposed but then permanently enjoined,
then that rule would, of course, have no effect on this final rule.
If the provisions of the joint rulemaking referenced by commenters
are finalized as proposed and go into effect and if the Government's
position in Padilla is ultimately determined to be correct, then
this final rule addresses that situation as discussed herein. In
that situation, all aliens subject to proceedings under 8 CFR
1208.2(c) would remain ineligible for bond hearings, and their cases
would warrant expeditious treatment accordingly, consistent with
longstanding regulatory language, 8 CFR 1208.5(a) (``Where possible,
expedited consideration shall be given to [asylum] applications of
detained aliens''). Finally, if the provisions of the joint
rulemaking referenced by commenters are finalized as proposed and go
into effect but the Government's position in Padilla is ultimately
determined not to be correct, then aliens who receive a positive
credible fear determination would still be subject to both detention
and proceedings under 8 CFR 1208.2(c), but would be eligible for
bond hearings before an immigration judge. In that situation, any
impacts of this rule have also been accounted for, contrary to
commenters' suggestions. Aliens seeking bond in that situation would
have a strong incentive--consistent with this final rule--to file an
asylum application expeditiously to bolster their arguments in
support of release from custody. See, e.g., Matter of Andrade, 19
I&N Dec. 488, 491 (BIA 1997) (alien's potential eligibility for
relief reflects on the likelihood of the alien's appearance at
future hearings which addresses whether an alien is a likely flight
risk). To be sure, the filing of an asylum application does not
automatically entitle an alien to bond. See Matter of R-A-V-P-, 27
I&N Dec. 803 (BIA 2020) (alien with a pending asylum application but
no family, employment, community ties, or probable path to obtain
lawful status is a flight risk who does not warrant release on
bond). But, consistent with 8 CFR 1208.5(a), an alien who is not
granted bond still warrants expeditious consideration of his or her
asylum application which is facilitated by this final rule. In
short, regardless of the possible permutations of litigation
outcomes related to relevant other rulemakings referenced by
commenters, this final rule has fully considered the possible
variations and commenters' attendant concerns.
---------------------------------------------------------------------------
In short, aliens described in 8 CFR 1208.2(c) are generally subject
to detention by DHS under various statutes and regulations with no
authorization for the Department to reconsider DHS's detention
determination and, thus, unless paroled by DHS, will be detained while
their asylum applications are adjudicated by immigration judges. A pre-
existing regulation unaltered by this rule already directs the
Department to adjudicate such applications
[[Page 81704]]
expeditiously. 8 CFR 1208.5(a) (``Where possible, expedited
consideration shall be given to [asylum] applications of detained
aliens.''). Commenters did not challenge this longstanding directive or
provide persuasive reasons why detained aliens--e.g., those subject to
proceedings under 8 CFR 1208.2(c), including those are subject to such
proceedings if the recent joint rule goes into effect--should not be
given expedited consideration, particularly if such aliens have
meritorious claims and the approval of the claim will lead to release
from detention. The Department believes strongly that asylum claims of
detained aliens should receive expeditious considerations, and
commenters' suggestions to the contrary overall were not sufficiently
compelling to warrant changing this rule.
Finally, many comments appeared rooted in a belief that EOIR's
adjudicators are incompetent or unethical and are either incapable or
unwilling to adhere to applicable law. Some commenters explicitly
traduced immigration judges; for example, one commenter asserted that
immigration judges have a ``routine bias'' against aliens and that
immigration judges routinely ``engage in a host of other unethical
behavior toward respondents.'' Such generalized, ad hominem allegations
of bias or impropriety are insufficient to ``overcome a presumption of
honesty and integrity in those serving as adjudicators.'' Withrow v.
Larkin, 421 U.S. 35, 47 (1975); see also United States v. Chem. Found.,
Inc., 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.''). Moreover, they provide no
principled basis for the Department to consider changes to the NPRM.
In sum, the Department issued the NPRM for the reasons given in
order to ensure asylum claims are expeditiously considered, especially
claims of detained aliens, to better effectuate statutory directives in
the INA, to ensure authority is appropriately exercised, to ensure
immigration judges consider only complete asylum applications and a
developed record containing probative evidence from credible sources,
and to promote impartial and timely adjudications consistent with the
law. It did not do so for any nefarious purpose, nor did it intend for
its procedural changes to have any substantive bearing on the outcomes
of additional cases, which flow from the evidence and the law, not the
Department's process. As discussed herein, nothing in the NPRM singles
out specific populations of aliens, including unrepresented aliens,\14\
nor do any of its changes fall disproportionately upon such groups in
unacceptable manner. To the extent that commenters did not engage with
the NPRM itself, provided unsupported assertions of fact or law,
attacked, tacitly or explicitly, the motivations of the Department's
adjudicators, or otherwise put forward suggestions based on their
preferred results rather than an impartial and timely process, the
Department declines to adopt those comments. Further, to the extent
that commenters provided substantive analysis and raised important
issues, the Department has considered all of them; however, on balance,
except for changes noted above, it has determined that the policy and
operational benefits of the rule expressed above outweigh all of the
issues raised by commenters. Accordingly, although the Department has
reviewed all comments received, the vast majority of them fall into the
groupings outlined above, and few of them are persuasive for reasons
explained in more detail below.
---------------------------------------------------------------------------
\14\ The Department has fully considered the possible impacts of
this rule on the relatively small pro se population of aliens with
asylum applications. As discussed below, however, the rule neither
singles such aliens out for particular treatment, nor does it
restrict or alter any of the many procedural avenues such aliens
already have available to them in advancing their cases. Further,
nothing in the rule inhibits the availability of pro bono counsel to
assist such aliens as appropriate.
---------------------------------------------------------------------------
B. Comments Expressing Support
Comment: Several commenters expressed general support for the rule
and immigration reform. Commenters noted the need for regulatory reform
given the delays in asylum adjudications. These commenters supported
all aspects of the rule, which they stated would allow the Department
to resolve cases in an expeditious manner. One commenter stated that
the rule will increase efficiency and bring asylum and withholding
regulations within the plain meaning and intent of the INA.
Response: The Department agrees with the commenters that these
regulatory changes will better support congressional intent and
increase operational efficiencies.
C. Comments Expressing Opposition
1. Administrative Procedure Act: Concerns Regarding the Ability To
Comment
Comment: Many commenters objected to the Department's allowance of
a 30-day comment period instead of a 60-day or longer period and
requested an extension of the 30-day comment period. Commenters cited
Executive Order 12866 and stated that a 60-day comment period is the
standard period of time that should be provided for a complex rule like
the NPRM.
Commenters stated that the 30-day comment period is an insufficient
period of time for them to adequately consider and respond to the
significance of the rule's proposed changes. Many commenters emphasized
that the comment period is particularly inadequate given the broader
context that DOJ independent and DHS and DOJ jointly have recently
published a number of complex proposed rules on a wide range of
immigration-related topics.\15\ Commenters noted that the closeness of
the comment periods for these rules and that, because the Departments
have not yet issued final rules, commenters cannot accurately know the
broader regulatory context for providing comment on the instant rule in
a short period of time.
---------------------------------------------------------------------------
\15\ For example, commenters noted, inter alia, the following
recent rulemaking actions: Appellate Procedures and Decisional
Finality in Immigration Proceedings; Administrative Closure, 85 FR
52491 (Aug. 26, 2020); Procedures for Asylum and Withholding of
Removal; Credible Fear and Reasonable Fear Review, 85 FR 36264 (June
15, 2020).
---------------------------------------------------------------------------
Commenters also stated that the 30-day comment period is
insufficient in the context of the COVID-19 pandemic, which, commenters
explained, has strained commenters' ability to prepare comments due to
unique childcare, work-life, and academic difficulties. Commenters
noted examples of other Federal agencies that have extended comment
periods due to the impact of COVID-19.\16\
---------------------------------------------------------------------------
\16\ See, e.g., Bureau of Consumer Financial Protection, Debt
Collection Practices (Regulation F); Extension of Comment Period, 85
FR 30890 (May 21, 2020).
---------------------------------------------------------------------------
Other commenters further noted that there was a Federal holiday
(Labor Day) during the comment period or that natural disasters and
wildfires have caused other personal difficulties that make the 30-day
comment period particularly short for meaningful comment.
Some commenters stated that there is no need for urgency given the
lengthiness of the immigration court process, delays due to COVID-19,
and the effective closure of the border by the Centers for Disease
Control and Prevention under Title 42 authority.\17\ Other commenters
explained that the
[[Page 81705]]
30-day comment period was particularly short as they were also working
extra hours during the comment period to take action for clients in
advance of the October 2, 2020 effective date for U.S. Citizenship and
Immigration Services' (``USCIS'') new fees. U.S. Citizenship and
Immigration Services Fee Schedule and Changes to Certain Other
Immigration Benefit Request Requirements, 85 FR 46788 (Aug. 3, 2020).
---------------------------------------------------------------------------
\17\ See Order Suspending the Right to Introduce Certain Persons
From Countries Where a Quarantinable Communicable Disease Exists, 85
FR 65806 (Oct. 16, 2020).
---------------------------------------------------------------------------
Some commenters noted that DHS has provided 60-day comment periods
for much less complex or significant items related to forms. See, e.g.,
Agency Information Collection Activities; Extension, Without Change, of
a Currently Approved Collection: Petition for U Nonimmigrant Status, 85
FR 58381 (Sept. 18, 2020).
Response: The Department believes the 30-day comment period was
sufficient to allow for meaningful public input, as evidenced by the
2,031 public comments received, including numerous detailed comments
from interested organizations. The NPRM was comparatively short (seven
full pages in the Federal Register plus parts of two other pages), it
proposed to amend only nine paragraphs in all of chapter V of 8 CFR,
and the issues it addressed were either already set by statute (e.g.,
the 180-day adjudication deadline in INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii)), well-known to aliens and practitioners (e.g.,
completing and filing an application), well-established as immigration
court practices (e.g., the setting of filing deadlines and the
development of the record by an immigration judge), or the deletion of
provisions that were practically inapplicable to EOIR (e.g., former 8
CFR 1208.7 and 1208.9). Moreover, commenters generally did not explain
what additional issues they would raise during a longer comment period,
and the volume of comments--as well as their breadth--reflects an ample
consideration of issues during the comment period. In short, there is
no indication that the comment period was insufficient.
Additionally, to the extent that commenters referred to other
proposed rulemakings as a basis for asserting the comment period should
have been longer, their comparisons are inapposite. No other proposed
rulemaking cited by commenters addressed small, discrete changes which
relate to well-established provisions and with which aliens and
practitioners have been quite familiar with for decades. In short, the
Department acknowledges and has reviewed commenters' concerns about the
30-day comment period, but those comments are unavailing for all of the
reasons given herein.
Similarly, contrary to commenters' assertions, there is no evidence
that either the COVID-19 pandemic or the Labor Day holiday had any
effect on the sufficiency of the 30-day comment period. To the
contrary, the number of comments received, as well as their breadth,
are strong evidence that the comment period was sufficient,
particularly for a short NPRM that made few substantive changes.
Employers around the country have adopted telework flexibilities to the
greatest extent possible, and the Department believes that interested
parties can use the available technological tools to prepare their
comments and submit them electronically. Indeed, nearly every comment
was received in this manner. Further, crediting the assertions of
commenters would effectively preclude rulemaking by the Department for
the duration of the COVID-19 outbreak, regardless of the length of the
comment period. The Department finds no basis to suspend all rulemaking
while the COVID-19 outbreak is ongoing. Similarly, commenters'
assertions regarding Labor Day reflect an intent to impose a blanket
rule that any comment period encompassing a Federal holiday should
always be extended, but that position is not supported by law, policy,
or practice. The Department acknowledges that particular commenters may
have faced individual personal circumstances which created challenges
to commenting, but that assertion is true of every rulemaking. Further,
there is no evidence of a systemic inability of commenters to provide
comments based on personal circumstances, and commenters' assertions
appear to reflect a desire to slow the rulemaking due to policy
disagreements rather than an actual inability to comment on the rule.
Overall, the Department finds that neither the COVID-19 pandemic nor
any other particular circumstances alleged by commenters limited the
public's ability to meaningfully engage in the notice and comment
period.
The Administrative Procedure Act (``APA'') does not require a
specific comment period length, see generally 5 U.S.C. 553(b)-(c).
While it is true that Executive Order 12866 recommends a comment period
of at least 60 days, no specific length is required. Rather, Federal
courts have presumed 30 days to be a reasonable comment period length.
For example, the D.C. Circuit has stated that ``[w]hen substantial rule
changes are proposed, a 30-day comment period is generally the shortest
time period sufficient for interested persons to meaningfully review a
proposed rule and provide informed comment.'' Nat'l Lifeline Ass'n v.
Fed. Commc'ns Comm'n, 921 F.3d 1102, 1117 (D.C. Cir. 2019) (citing
Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir. 1984)).
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., North Carolina Growers' Ass'n. 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). Here, 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 Saints Peter and Paul Home v. Pennsylvania, 140 S.
Ct. 2367, 2385 (2020) (``The object [of notice and comment], in short,
is one of fair notice.'' (citation omitted)).
Finally, commenters' comparisons to the time allowed for comment on
changes related to forms are inapposite. By statute, the Paperwork
Reduction Act (``PRA'') requires a 60-day comment period for proposed
information collections like those referenced by the commenters. 44
U.S.C. 3506(c)(2)(A). In contrast, as explained above, there is no
similar statutory requirement for the proposed rule itself. Overall,
the Department disagrees that the comment period was too short or that
commenters did not receive fair notice and an opportunity to respond.
Comment: Some commenters accused the Department of engaging in
``staggered rulemaking,'' which, according to commenters, has made it
impossible for them to adequately comment on the potential effect of
this rule. According to commenters, several pending rulemakings could
``radically alter'' procedures before the EOIR. As such, commenters
asserted that, without knowing which proposed rules will ultimately be
published and how they might be altered in their final form, they are
being forced to comment without being able to consider the full
aggregate effect of all of the Department's proposed rules.
Response: The Department did not purposefully separate its policy
goals into separate regulations in order to prevent the public from
being able to meaningfully review and provide comment and rejects any
assertions to
[[Page 81706]]
the contrary. The Department acknowledges that it has proposed multiple
rules in 2019 and 2020 but categorically rejects any assertions that it
has done so for any sort of nefarious purpose. Each of the Department's
rules stands on its own, includes explanations of their basis and
purpose, and allows for public comment, as required by the APA. See
Little Sisters of the Poor Saints Peter & Paul Home, 140 S. Ct. at 2386
(explaining that the APA provides the ``maximum procedural
requirements'' that an agency must follow in order to promulgate a
rule). Further, the interplay and impact of all of the rules is
speculative at the present time, both because many of them are not yet
finalized and because of ongoing and expected future litigation, which
may allow all, some, or none of the rules to ultimately take effect.
Nevertheless, to the extent commenters noted some potential overlap or
joint impacts, the Department regularly considers the existing and
potential legal framework when a specific rule is proposed or
implemented. Further, nothing in any rule proposed by the Department,
including the one underlying this final rule, precludes the public from
meaningfully reviewing and commenting on that rule. Moreover, even if
all rules were in effect, the Department has concluded that the
benefits of the instant rule discussed in the NPRM, e.g., 85 FR at
59693-98 and herein--as well as the benefits discussed in the other
rules ultimately outweigh any combined impact the rules may have.
2. General Opposition
The majority of commenters opposed the rule, and many commenters
expressed generalized statements of opposition, sometimes in
overwrought and tendentious terms, that were not specifically related
to the rule's substantive changes.
Comment: Several commenters stated that the rule conflicts with
American values and its deeply rooted policy of welcoming immigrants
and refugees, which, commenters asserted, would damage the Nation's
standing in the world. Moreover, a number of commenters stated that the
rule is immoral, cruel, or the product of racist or other ill-intent.
Other commenters expressed statements of admiration for immigrants or
asylum seekers, such as commenters' belief that asylum seekers as a
group contribute positively to the United States.
Response: The rule is not immoral, cruel, motivated by racial
animus, or promulgated with discriminatory intent. Instead, the rule is
intended to help the Department better allocate limited resources in
order to more expeditiously adjudicate meritorious asylum and statutory
withholding of removal claims. For example, setting a 15-day deadline
for asylum applications in asylum-and-withholding-only proceedings will
help streamline the process by ensuring that immigration judges can
adjudicate such claims expeditiously. Similarly, establishing a
deadline by which an incomplete application must be returned will allow
cases to be adjudicated in a timely and predictable manner. Likewise,
the clarifications regarding what materials an immigration judge may
consider will prevent time being wasted on from non-credible sources or
material that is not probative.
Further, this rule is not representative of a particular value
judgment regarding the contributions or relative merits of immigrants
or asylum seekers in the United States. Instead, the rule is intended
to increase overall efficiencies for the processing and adjudication of
asylum applications before EOIR, which in turn would benefit asylum
seekers by enabling individuals with meritorious claims to more quickly
receive relief and gain stability in the United States.
Comment: Similarly, many commenters expressed a belief that the
rule was designed to make the asylum process more difficult and an
attempt to severely limit immigration through asylum. Commenters stated
that the rule erects needless barriers for those fleeing violence and
persecution. Numerous commenters also asserted that the rule would
virtually negate the United States' asylum system and turn immigration
courts into deportation-focused entities, which would prioritize the
deportation of asylum seekers rather than the fair adjudication of
their claims. Several of the commenters suggested that the underlying
motive behind the rule is a desire by the administration to end the
ability of people to seek asylum in the United States. Likewise, many
commenters stated that the rule would essentially lead to the denial of
all asylum claims.
In addition, commenters also asserted that the rule would result in
more backlogs in the immigration court system because more appeals
would be filed.
Response: This rule does not in any way ``negate'' the United
States' asylum system, prevent aliens from applying for asylum, or
prevent the granting of meritorious claims, contrary to commenters'
claims. To the contrary, the changes make the asylum system more
efficient and uniform, and will ultimately benefit those with
meritorious claims. The Department agrees with commenters that asylum
remains an important form of possible relief for individuals seeking
protection, and notes that these changes are needed to better address
the backlog of pending asylum cases and address current inefficiencies
in the asylum system. See, e.g., EOIR, Adjudication Statistics: Total
Asylum Applications (July 14, 2020), https://www.justice.gov/eoir/page/file/1106366/download. In addition, this rule will help ensure that the
system is more effective for those who truly have ``nowhere else to
turn.'' Matter of B-R-, 26 I&N Dec. 119, 122 (BIA 2013) (internal
citations omitted).
Additionally, the Department rejects the assertion that this rule
will lead to further backlogs. The Department has made or proposed
numerous regulatory changes recently to address inefficiencies where
appropriate, and this rule is another tool to do so. See, e.g.,
Appellate Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure, 85 FR 52491 (Aug. 26, 2020)
(proposed) (addressing inefficiencies in case adjudications at the
Board of Immigration Appeals (BIA)); Expanding the Size of the Board of
Immigration Appeals, 85 FR 18105 (Apr. 1, 2020) (interim rule) (adding
two member positions to the BIA so that the BIA may more efficiently
and timely adjudicate appeals); Organization of the Executive Office
for Immigration Review, 84 FR 44537 (Aug. 26, 2019) (interim rule)
(providing, in part, for more efficient disposition of cases through a
delegation of authority); EOIR Electronic Filing Pilot Program, 83 FR
29575 (June 25, 2018) (public notice) (creating a pilot program to test
an electronic filing system that would greatly improve immigration
adjudication processing in the immigration courts and eventually the
BIA). Overall, the Department believes that the rule will not
exacerbate inefficiencies considering all changes in the aggregate.
Moreover, commenters' prediction that more appeals will be filed
because of the rule is purely speculative and ignores the case-by-case
way in which asylum applications are adjudicated.
Comment: Some commenters expressed concerns with the Department's
exercise of authority and jurisdiction related to the rule. For
example, commenters stated that Congress, not the Department, must be
the entity to 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 province of
[[Page 81707]]
Congress, including commenters' belief, as mentioned above, that the
rule would effectively end or eliminate asylum availability and limit
how many asylum seekers would get 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 only be undertaken by Congress.
Other commenters asserted that the Department should not amend its
regulations in such close proximity to a presidential election.
Response: To the extent that commenters intimated that the
Department should adhere to laws passed by Congress regarding asylum
adjudications such as INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii), which is incorporated into the rule, the Department
agrees that it should effectuate the laws passed by Congress.
Commenters are incorrect, however, that Congress, not the Department,
must make the sorts of changes to the asylum procedures set out in the
proposed rule. Both the proposed rule and this final rule are issued
pursuant to the Attorney General's statutory authority provided by
Congress. See INA 103(g) and 208(d)(5)(B), 8 U.S.C. 1103(g) and
1158(d)(5)(B). Despite commenters' statements, the provisions of the
rule are consistent with the Act. Should Congress enact legislation
that amends the provisions of the Act that are interpreted and affected
by this rule, the Department will engage in future rulemaking as
needed.
The Department also rejects commenters' argument that the
Department's authority to engage in rulemaking is related to the
relative timing of a presidential election. The APA already allows for
democratic input in agency decision-making through the required notice
and comment procedures. See 5 U.S.C. 553(c). Moreover, the Supreme
Court has stated that ``an agency to which Congress has delegated
policy-making responsibilities may, within the limits of that
delegation, properly rely on the incumbent administration's views of
wise policy to inform its judgments.'' Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 865 (1984). As such, it is
irrelevant that the presidential election was set to occur in close
proximity to the rule's publication and comment period. Further, there
is no law suspending rulemaking within a certain period before a
presidential election, and the American system of government does not
generally countenance the cessation of work on important policies for
an extended period of time, such as a presidential election cycle.
Comment: Many commenters also expressed broad concern that the rule
would erode aliens' due process rights in immigration court
proceedings. Specifically, commenters asserted that the rule would
diminish aliens' due process rights by rushing the asylum process and
by making it more difficult for them to have enough time to obtain
representation, pay fees, or gather records.
Response: Commenters are incorrect that the rule will impede
aliens' due process rights in the manner speculated by commenters. It
should be noted that EOIR's mission remains ``to adjudicate immigration
cases by fairly, expeditiously, and uniformly interpreting and
administering the Nation's immigration laws.'' EOIR, About the Office
(Aug. 14, 2018), https://www.justice.gov/eoir/about-office. In other
words, the Department must balance fairness concerns with the
countervailing need for efficiency and expeditiousness in EOIR
proceedings. Although the rule changes timing and other procedural
requirements, the rule does not deny due process to any alien. Due
process in an immigration proceeding requires notice and a meaningful
opportunity to be heard, neither of which are affected by this rule.
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.''). None of the changes in the rule limit aliens in immigration
proceedings before EOIR from obtaining representation, presenting
evidence, or applying for immigration relief such that it violates
their due process rights.
3. Violates International Law
Comment: Several commenters were concerned that the rule violates
the United States' ostensible obligations under international law,
citing the 1948 Universal Declaration of Human Rights (``UDHR''), the
1951 Convention relating to the Status of Refugees (``1951 Refugee
Convention''), the 1967 Protocol relating to the Status of Refugees
(``1967 Protocol''), and the CAT. Specifically, commenters asserted
that the rule violates the international right to seek asylum, the
principle of non-refoulement, and the international obligation to
provide fair and efficient asylum procedures.
Commenters stated that the rule's provisions implementing a 15-day
filing deadline, requiring an asylum application fee, and mandatorily
rejecting incomplete applications violates the applicant's right to
seek asylum and the United States' non-refoulement obligations.
Commenters explained that the 15-day deadline was too short and would
prevent asylum seekers from applying for asylum or accessing legal
representation, thereby subjecting them to the possibility of return to
a country where their life or freedom may be threatened. Commenters
also stated that the 15-day filing deadline, when read in conjunction
with the Department's other recently proposed asylum rules, would
create a categorical bar to asylum for many asylum seekers in violation
of the applicant's right to seek asylum.
Similarly, commenters stated that requiring an asylum application
fee would prevent asylum seekers from applying for asylum and that the
Department should include an income-based or other exception.
Commenters noted that only three other countries impose an asylum fee
but that even those countries allowed for exceptions. Commenters stated
that requiring such a fee without an exception raises the risk of
refoulement.
Commenters likewise argued that mandatorily rejecting incomplete
applications would subject applicants to potential refoulement for even
minor omissions, such as failing to complete a field on the Form I-589
that is not applicable to the applicant. One commenter noted that the
1951 Refugee Convention obligates countries to give applicants the
benefit of the doubt, which should apply to minor errors or omissions
on the form.
Lastly, commenters stated that the rule does not provide for fair
and efficient procedures, which commenters explain are an essential
element in applying the 1951 Refugee Convention and related
international obligations. Commenters explained that implementing these
standards includes providing a realistic opportunity for asylum seekers
to have their claims developed, heard in full, and fairly decided.
Commenters alleged that the 15-day filing deadline, the mandatory
rejection of incomplete applications, the charging of asylum
application fees, and the 180-day adjudication deadline are not fair
procedures because they do not take into account the difficulties and
needs of asylum-seekers, such as lack of English language skills, lack
of counsel, unfamiliarity with the U.S. legal system, and the lasting
effects of trauma, among others. Rather, commenters alleged that the
changes appear to be intended to prevent asylum seekers from applying
for relief.
Response: This rule is consistent with the United States'
obligations as a party
[[Page 81708]]
to the 1967 Protocol, which incorporates Articles 2 through 34 of the
1951 Refugee Convention. 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. These
treaties are not directly enforceable in U.S. law, but some of their
obligations have been implemented by domestic legislation and
implementing regulations. See INS v. Stevic, 467 U.S. 407, 428 & n.22
(1984); 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.''); Foreign
Affairs Reform and Restructuring Act of 1998 (``FARRA''), Public Law
105-277, sec. 2242(b), 112 Stat. 2681, 2631-822 (8 U.S.C. 1231 note); 8
CFR 208.16(b) and (c), 208.17 and 208.18; 1208.16(b) and (c), 1208.17,
and 1208.18. Similarly, the UDHR does not create enforceable
obligations on its own. Sosa v. Alvarez-Machain, 542 U.S. 692, 734
(2004) (``But the [UDHR] does not of its own force impose obligations
as a matter of international law.'').
The Department disagrees that this rule contravenes the UDHR's
article stating that everyone has the right to seek asylum protections
in other countries. The rule does not prohibit anyone from seeking
asylum. Instead, the rule simply requires all applicants to comply with
established filing requirements, including, for aliens in asylum-and-
withholding-only proceedings, complying with delineated filing
deadlines. Further, in the rare instances where an applicant has good
cause to miss the filing deadline, the immigration judge may extend the
filing deadline after considering the relevant facts.
Immigration laws should enable the granting of immigration relief
or protection to eligible individuals, and the prompt removal of those
who are ineligible. This revision will expedite the consideration of
meritorious claims and help such aliens obtain relief quickly while
similarly reducing the likelihood that those with non-meritorious
claims will be able to remain in the United States for longer and
substantial periods of time. It is in the national interest and is
consistent with U.S. non-refoulement obligations that meritorious
claims are granted as quickly as possible while unwarranted claims are
similarly screened out expeditiously.
The Department disagrees with comments that the rule's requirement
that the applicant must pay the required fee, if any, for submitting a
Form I-589 for the purposes of asylum violates non-refoulement
obligations.\18\ Because the rule does not impose a fee for statutory
withholding of removal or protection under the CAT regulations,\19\ the
rule would still be consistent with the provisions of the 1951 Refugee
Convention, 1967 Protocol, and the CAT. 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);
Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016); Maldonado v.
Lynch, 786 F.3d 1155, 1162 (9th Cir. 2015) (explaining that Article 3
of the CAT, which sets out the non-refoulement obligations of
signatories, was implemented in the United States by the Foreign
Affairs Reform and Restructuring Act of 1998 (``FARRA'') (Pub. L. 105-
277, sec. 2242(b), 112 Stat. 2681, 2631-822 (8 U.S.C. 1231 note)) and
its implementing regulations); see also INS v. Cardoza-Fonseca, 480
U.S. 421, 429, 441 (1987) (``[Withholding of removal] corresponds to
Article 33.1 of the Convention . . . . [Asylum] by contrast, is a
discretionary mechanism which gives the Attorney General the authority
to grant the broader relief of asylum to refugees. As such, it does not
correspond to Article 33 of the Convention, but instead corresponds to
Article 34.'') (emphasis in original).
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\18\ Comments objecting to that fee are beyond the scope of the
rule and the Department generally. Whether a fee is required for the
Form I-589 is a matter determined by DHS, not by the Department. See
8 CFR 1103.7(b)(4)(ii). DHS issued a final rule imposing a $50 fee
for asylum applications--other than for genuine unaccompanied alien
children (UAC) who file for asylum while in immigration proceedings
before EOIR--that was scheduled to go into effect on October 2,
2020. U.S. Citizenship and Immigration Services Fee Schedule and
Changes to Certain Other Immigration Benefit Request Requirements,
85 FR at 46791. That rule was enjoined on September 29, 2020,
Immigrant Legal Res. Ctr. v. Wolf, --- F. Supp. 3d ----, 2020 WL
5798269 (N.D. Cal. 2020). See supra. While that injunction is in
effect, EOIR cannot charge a fee for asylum applications in its
proceedings. Further discussion of the rule's provisions regarding
the requirement of aliens to pay a fee is below in section II.c.4.d.
\19\ This rule only provides that ``a fee must be submitted if
DHS requires one.'' As DHS noted in its final rule regarding a fee
for an asylum application: ``No fee would apply where an applicant
submits a Form I-589 for the sole purpose of seeking withholding of
removal under INA section 241(b)(3), 8 U.S.C. 1231(b)(3), or
protection from removal under the regulations implementing U.S.
obligations under Article 3 of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).''
85 FR at 46793 n.17. As noted, supra, the DHS final rule is
currently enjoined and, thus, has not yet taken effect.
---------------------------------------------------------------------------
The Department also notes that rejecting incomplete or deficient
asylum applications does not violate non-refoulement principles. Again,
this rule does not alter any applicant's substantive rights regarding
eligibility for asylum, statutory withholding of removal, and
protection under the regulations issued pursuant to legislation
implementing the CAT. When applicants comply with the filing
requirements, including submission of a completed application, and are
otherwise eligible for consideration, their applications receive full
review and deliberation. Additionally, even where the applicant errs in
submitting an incomplete application, the applicant has the opportunity
to correct any deficiencies within 30 days. Rejection of an application
for failure to comply with these reasonable filing deadlines and
requirements does not conflict with the United States' international
obligations. See, e.g., Hui Zheng v. Holder, 562 F.3d 647, 655-56 (4th
Cir. 2009) (``[T]he U.N. Protocol [and] the CAT [are] . . . effectuated
through a statutory scheme that Congress has established, and which the
Attorney General has implemented through regulations governing both the
BIA and the procedures available to aliens seeking entry to the United
States.''); Yuen Jin v. Mukasey, 538 F.3d 143, 159 (2d Cir. 2008); Chen
v. Mukasey, 524 F.3d 1028, 1033 (9th Cir. 2008); Foroglou v. Reno, 241
F.3d 111, 113 (1st Cir. 2001).
Finally, as stated before, it is widely accepted that meritorious
claims should be granted as rapidly as possible while acknowledging
that frivolous or untenable claims be identified as soon as is feasible
in the screening process. This rule benefits legitimate asylum claims
by clarifying statutory requirements and streamlining the asylum
process.
4. Concerns With Changes Regarding I-589 Filing Requirements
a. 15-Day Filing Deadline in Asylum-and-Withholding-Only Proceedings
i. General Opposition to the Deadline
Comment: The majority of commenters expressed opposition to the 15-
day deadline. Commenters asserted that establishing a 15-day deadline
would likely prevent legitimate claims from being submitted or would be
too short for legitimate claims to adequately be raised; thus
commenters alleged that the rule would effectively end the U.S. asylum
system and ensure deportations.
[[Page 81709]]
Response: As an initial point, few, if any, commenters acknowledged
that existing regulations have contained a 10-day application filing
deadline for many years for a particular category of asylum seekers,
with no noted opposition or complaints. 8 CFR 1208.5(b)(1)(ii).
Similarly, most commenters ignored or downplayed the rule's provision
of an extension of the 15-day filing deadline for good cause without
addressing why the possibility of such an extension would not respond
to concerns about timing. Similarly, most commenters asserted that the
rule required the submission of both an application and all supporting
documents with no further opportunity to update or supplement it, but
the rule requires no such thing. The rule requires only the filing of
an application by a deadline and does not alter existing provisions
regarding the supplementation of an existing application. 8 CFR
1208.4(c); cf. Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010)
(distinguishing between the submission of an application itself and the
later submission of supporting documents). To the extent that
commenters ignored or misstated the actual provisions of the rule,
otherwise failed to engage with the safeguards provided by the rule, or
conflated different types of filings, the Department acknowledges such
comments but declines to adopt them based on such misapprehensions.
Further, commenters' hyperbolic statements that the imposition of a
filing deadline that is nevertheless subject to extension somehow
effectively precludes asylum eligibility or prevents the filing of an
asylum application are without merit. Moreover, such statements ignore
the reality that those with meritorious claims typically want their
claims heard as quickly as possible to avoid evidence becoming stale
and to receive the benefits associated with asylee status. The
Department seeks to continue extending protection and relief to aliens
with meritorious claims, but the realities of the size of EOIR's
pending caseload and the continued increase in notices to appear filed
in immigration court cannot be understated. See EOIR, Adjudication
Statistics: Pending Cases, New Cases, and Total Completions (Oct. 13,
2020), https://www.justice.gov/eoir/page/file/1242166/download.
Accordingly, as noted in the NPRM, this rule is designed to ensure that
protection and relief is not delayed for meritorious claims and that
evidence is preserved to the fullest extent possible. See 85 FR at
59696 (``[D]elaying filing of the claim risks delaying protection or
relief for meritorious claims and increases the likelihood that
important evidence, including personal recollections, may degrade or be
lost over time.''). The Department believes that establishing this
deadline, as well as availability of an extension for good cause and
the retained ability to supplement or amend the application later in
proceedings, will best facilitate those aims. See 8 CFR 1208.4(c), (d).
Further, this deadline appropriately eliminates unnecessary delays
in what should be a streamlined proceeding, notwithstanding the
possibility of an extension for good cause in unusual situations.
Moreover, as discussed, supra, aliens subject to proceedings under 8
CFR 1208.2(c)(1) generally are detained, and the filing deadline is in
keeping with the instruction that detained aliens should receive
``expedited consideration'' of their asylum claims. Id.
Moreover, commenters alleged that establishing a 15-day deadline
violated the APA for various reasons, as has been addressed at length,
supra. See section II.C.4.a.iii for further discussion regarding this
issue.
Comment: Commenters expressed general opposition to the 15-day
deadline in light of other regulatory changes that commenters alleged
would drastically increase the number of aliens subject to the 15-day
filing deadline by increasing the number of aliens in asylum-and-
withholding-only proceedings. Commenters explained that these changes
are contrary to the small number of alien crewmembers subject to the
current 10-day filing deadline, to which the Department compared the
proposed rule.
For example, commenters cited the Department's proposed joint rule
with DHS, 85 FR 36264, which commenters explained would expand the
number of aliens subject to asylum-only proceedings, would allow
immigration judges to pretermit asylum applications that failed to
establish prima facie claims for relief, and would expand the
definition of a ``frivolous'' claim. Commenters stated that the impact
of this rule and that proposed rule, if implemented, would result in a
massive amount of people subject to the new filing deadline.
Similarly, commenters asserted concerns that the Department failed
to consider the impact of DHS's expansion of expedited removal
authority, which commenters stated would further increase the number of
affected aliens. See Designating Aliens for Expedited Removal, 84 FR
35409 (July 23, 2019); see also Make the Rd. New York, 962 F.3d at 618.
Response: As an initial point, the number of aliens who may be
placed in asylum-and-withholding-only proceedings is both speculative
and unpredictable because a precise chain of events has to occur--
involving, inter alia, international migration flows, the possibility
of the exercise of prosecutorial discretion, and legal determinations
by adjudicators--in order to reach that result, and those events, both
discretely and especially in combination, cannot be predicted with any
degree of precision; moreover, several links in that chain are wholly
outside the Department's control. See Home Box Office, Inc. v. FCC, 567
F.2d 9, 35 n.58 (D.C. Cir. 1977) (per curiam) (``Moreover, comments
which themselves are purely speculative and do not disclose the factual
or policy basis on which they rest require no response. There must be
some basis for thinking a position taken in opposition to the agency is
true.''). For example, under the recently-finalized joint rule,
Procedures for Asylum and Withholding of Removal; Credible Fear and
Reasonable Fear Review, signed by the Attorney General and the Acting
Secretary of Homeland Security on December 2, 2020, the Department is
unable to accurately predict the future number of aliens who would
enter or seek to enter the United States illegally, be subjected to a
credible fear screening by DHS, receive a positive credible fear
determination by either DHS or an immigration judge, and, in turn, be
placed into asylum-and-withholding-only proceedings. Similarly, DHS has
autonomy over its own enforcement-related decisions and is tasked by
Congress with ``[e]stablishing national immigration enforcement
policies and priorities.'' Homeland Security Act of 2002, Public Law
107-296, sec. 402(5), 116 Stat. 2135, 2178 (codified at 6 U.S.C.
202(5)). Consequently, the Department has neither control over nor the
means to predict how many aliens DHS may subject to expedited removal
procedures as opposed to other enforcement options or the exercise of
prosecutorial discretion. Thus, while the Department is aware that
these other rules may have some impact on immigration proceedings
relevant to this rule, the size and nature of that impact is
speculative and unknowable because of intervening factors, namely
levels of illegal immigration and DHS's exercise of its prosecutorial
discretion authority. Moreover, even if that impact were predictable,
the Department has determined, as a matter of policy, that
[[Page 81710]]
the benefits of the rule--e.g., better effectuation of statutory
directives, the expedited consideration of meritorious asylum claims,
and the elimination of provisions that are immaterial to EOIR--far
outweigh any negative impacts that the rule would have, either
singularly or in tandem with other rules.
Moreover, assuming, arguendo, that other rules increase the number
of aliens subject to asylum-and-withholding proceedings under 8 CFR
1208.2(c), the provisions of this rule would remain important to
effectuate. As discussed, supra, aliens subject to proceedings under 8
CFR 1208.2(c) are generally subject to detention unless paroled by DHS.
Both parties, especially in cases of aliens with meritorious claims,
and the immigration courts have an interest in the expeditious
consideration of asylum claims made by detained aliens. In fact,
current regulations already provide for such expedited consideration, 8
CFR 1208.5(a), and commenters did not explain why detained aliens
should not receive expedited consideration of their asylum claims nor
challenge the application of 8 CFR 1208.5(a). In short, regardless of
whether the rule is considered alone or in conjunction with other
rules, it simply reaffirms the importance of well-established
principles, namely adhering to statutory deadlines and providing
expedited consideration of asylum claims for detained aliens,
particularly for meritorious claims. Commenters' suggestions that the
Department should depart from these principles are unpersuasive.
Furthermore, the Department's reasoning for the 15-day deadline
does not rely on or involve the number of aliens who may be affected.
In other words, the proposed rule at 85 FR 36264--nor the finalized
rule, Procedures for Asylum and Withholding of Removal; Credible Fear
and Reasonable Fear Review, signed by the Attorney General and the
Acting Secretary of Homeland Security on December 2, 2020--had no
bearing on the reasoning underlying the deadline in the rule at hand.
In the proposed rule, 85 FR at 59693-94, the Department explained that
aliens in asylum-and-withholding-only proceedings are ``generally
already subject to removal orders, denials of applications for
admission, or denials of permission to land in the case of crewmembers,
and are often also detained . . . . [T]heir only avenues for relief or
protection are applications for asylum, statutory withholding of
removal, and protection under the regulations issued pursuant to
legislation implementing U.S. obligations under the [CAT ] . . . and
they would not be in asylum-and-withholding-only proceedings if they
had not already claimed a fear of persecution or torture upon being
returned to their home countries.'' The Department subsequently
concluded that because asylum and withholding of removal are the ``sole
issues to be resolved in the proceeding and are squarely presented at
the outset of the proceeding . . . there is no reason not to expect the
alien to be prepared to state his or her claim as quickly as
possible.'' 85 FR at 59694. In addition, the Department provided
further reasoning for its decision to establish a deadline: Delayed
filing risks delayed protection or relief for meritorious claims;
delayed filing increases the likelihood that evidence may degrade or be
lost; and applicants may simply delay proceedings, thus causing
inefficiencies in what should be a streamlined proceeding. See id. The
Department also noted that a deadline was consistent with current
regulations establishing a 10-day deadline for detained crewmembers to
file an asylum application, 8 CFR 1208.5(b)(1)(ii), and directing the
agency to provide ``expedited consideration'' to asylum applications
filed by detained aliens, 8 CFR 1208.5(a). Id. None of these factors
relies upon or is altered based on the number of aliens subject to
proceedings under 8 CFR 1208.2(c)(1).\20\
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\20\ The Department notes, however, that to the extent
commenters argue more aliens will be in asylum-and-withholding-only
proceedings and subject to the 15-day filing deadline in the future,
such arguments further the Department's reasoning rather than
counter it. In other words, the Department's concerns to ensure
efficiency, accurate recall of claims, and avoiding gamesmanship are
greater if more proceedings are benefited than fewer.
---------------------------------------------------------------------------
Comment: Commenters claimed the rule's inclusion of the possibility
of an extension of the filing period for good cause was disingenuous
for several reasons. First, commenters claimed that case quotas and
performance metrics would incentivize judges to deny requests for
extensions. Second, commenters claimed that adjudicating an extension
request, which takes time and effort from all parties involved, did not
align with the Department's purported aims of streamlining the process.
Response: As an initial point, immigration judges are not subject
to any performance metric related to the length of a case adjudication;
thus, whether they would grant an extension or not would have no
bearing on any applicable performance measure.\21\ Even if immigration
judges were subject to a performance measure that was relevant to the
rule, immigration judges are well aware that it is not appropriate to
base continuance or extension decisions solely on case-completion
goals. See, e.g., Matter of L-A-B-R-, 27 I&N Dec. 405, 416-17 (A.G.
2018) (stating that it is inappropriate to base a decision on a
continuance request solely on case completion goals). As discussed,
supra, commenters' suggestions that immigration judges are biased or
incompetent and will either ignore applicable law or will make
decisions on factors other than the record and the law are not well-
taken. The Department is confident that EOIR's immigration judge corps
adheres to the highest levels of professionalism and will continue to
apply their independent judgment and discretion, 8 CFR 1003.10(b), when
evaluating good cause in relation to requests for extensions. Further,
immigration judges regularly adjudicate requests for continuances as
part of their duties, and there is no reason to expect that any new
requests as a result of this rule would exacerbate the time required
for adjudication of these motions.
---------------------------------------------------------------------------
\21\ Non-supervisory immigration judges are subject to a
biannual performance work plan based on three elements and a
combined total of fourteen sub-elements. A non-supervisory
immigration judge's seven performance measures are one of six sub-
elements of one of three job elements. Although one of the
performance measures--i.e., one of seven sub-sub-elements of one of
six sub-elements of one of three elements--is a case completion
goal, the establishment of a filing deadline has little correlation
with how many cases an immigration judge may ultimately complete.
Moreover, the failure to meet any performance measure does not
automatically result in the lowering of an immigration judge's
performance rating. For instance, for the rating cycle that
concluded at the end of FY 2019, although not all non-supervisory
immigration judges met the numeric performance measures, every non-
supervisory immigration judge nevertheless received a performance
rating of satisfactory for the job element encompassing those
measures.
---------------------------------------------------------------------------
Comment: Multiple commenters alleged that the extension for good
cause was limited to 10 days and disagreed with a 10-day limit.
Response: Commenters misread the rule. The extension for good cause
is not limited to 10 days; rather, the immigration judge in his or her
discretion determines the length of the extension.
ii. 15 Days Is Too Short
(1) Evidence-Related Concerns
Comment: Commenters asserted that a 15-day deadline is an improper
solution to the Department's evidence concerns because 15 days is
insufficient to collect relevant evidence. Commenters explained that
gathering evidence--including declarations, corroborating documents
such as medical and police
[[Page 81711]]
reports, letters from witnesses, country conditions documentation, and
reports from expert witnesses--and then paying for certain documents to
be translated takes much longer than 15 days, especially considering
that evidence may be located abroad or possessed by a foreign
government.
Commenters stated that the government should have an interest in
considering the complete facts of a claim. Commenters alleged, however,
that immigration judges would not have all of the evidence before them
for consideration because (1) aliens would be unable to submit evidence
in such a short timeframe, or (2) the short deadline would rush aliens
and inevitably cause contradictions or omissions in the evidence,
thereby creating unnecessary false credibility issues.
Commenters explained that aliens who need or request more than 15
days are not trying to circumvent the immigration process; rather,
those aliens seek to engage in the legal immigration process by
gathering all relevant information and evidence for their claim, which
commenters emphasized takes longer than 15 days. Further, commenters
explained that aliens who unnecessarily delay their proceedings accept
the risk of degradation or loss of evidence. Commenters stated that
such concern should incentivize aliens to act efficiently but does not
warrant a 15-day deadline.
Response: As discussed, supra, commenters either misread the rule
or misstated its contents. Nothing in the rule requires that all
supporting evidence be submitted within 15 days. Nothing in the rule
precludes amending or supplementing an application after it has been
filed in accordance with existing regulations. Further, nothing in the
rule requires an immigration judge to render a decision within 15 days
or to schedule a hearing at any particular time, subject to the general
deadline contains in INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii).
Similarly, commenters did not address why aliens in proceedings
under 8 CFR 1208.2(c)(1), who are the one of the subjects of the rule,
should not receive expedited consideration of their asylum claims
because they are detained. The rule ensures that such aliens receive
expedited consideration of their applications consistent with existing
regulations, 8 CFR 1208.5(a), but it does not alter an alien's ability
to submit evidence in support of an application.
The rule does not limit evidence-gathering to 15 days; rather, it
requires the application and available supporting evidence to be
submitted within 15 days of the alien's first hearing before the
immigration judge. See 8 CFR 1208.4(d) (``[T]he immigration judge . . .
shall set a deadline of fifteen days from the date of the alien's first
hearing before an immigration judge by which the alien must file an
asylum application''). The Department believes the 15-day deadline
appropriately balances the concern regarding risk of degradation or
loss of evidence with the need to provide adequate time for preparation
and the need to provide expedited consideration of the claims of
detained aliens, especially those with meritorious claims.
The Department notes that the 15-day deadline begins from the date
of the alien's first hearing with the immigration judge, which may not
occur until several weeks after the alien was first encountered by DHS
\22\ and, in some cases, until after the alien has already resided in
the United States for an extended length of time.\23\ Thus, contrary to
commenters' suggestions, aliens are not limited to a 15-day period to
prepare an application or to gather evidence, and many aliens will have
had a considerably longer period of time to prepare their claims. In
fact, some aliens subject to the rule will have already filed an asylum
application even before the 15-day deadline begins. Compare 8 CFR
1208.2(c)(1)(i) (alien crewmembers subject to asylum-and-withholding-
only proceedings before an immigration judge), with 8 CFR
1208.5(b)(1)(ii) (requiring an alien crewmember seeking asylum to file
the application with DHS first--and giving the alien ten days to do so,
subject to an extension for good cause--before being placed in
proceedings under 8 CFR 1208.2(c)(1)). Moreover, aliens in DHS custody
who express a desire to seek asylum or a fear of return are provided an
asylum application at that time,\24\ and that expression necessarily
occurs before an alien is placed in proceedings under 8 CFR
1208.2(c)(1) or (2) and before the alien's first hearing is
subsequently scheduled. 8 CFR 208.5(a), 1208.5(a). Thus, aliens will
always have had time beyond the 15-day deadline in order to complete
the application, and few, if any, commenters acknowledged this
additional time in their opposition to the rule.
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\22\ As of October 23, 2020--and excluding aliens detained in
the Institutional Hearing Program and the Migrant Protection
Protocols program, detained aliens with competency issues, and
detained UAC in the custody of the Department of Health and Human
Services--the median time between the issuance of a notice to appear
for a detained alien and the filing of a notice to appear with an
immigration court is seven days, and the median time between the
receipt of a notice to appear for a detained alien and that alien's
first hearing is sixteen days. Thus, detained aliens will, on
average, have 23 days before the 15-day deadline even begins to run,
and commenters did not persuasively explain why 38 days, which is
more than five weeks and may be extended due to good cause, is an
insufficient amount of time for an alien to file an asylum
application, especially for an alien who has recently made a claim
of a fear of return to his or her country of nationality.
\23\ For example, aliens who have overstayed an authorized
period of admission under the Visa Waiver Program (VWP) and later
seek asylum under 8 CFR 1208.2(c)(1)(iv) may have already spent
years in the United States prior to applying for asylum and, thus,
will have already had ample time to prepare their case. See, e.g.,
Matter of D-M-C-P-, 26 I&N Dec. 644, 644-45 (BIA 2015) (alien
admitted under the VWP in 1999 but did not make an asylum claim in
proceedings under 8 CFR 1208.2(c)(1) until 2011).
\24\ Although DHS does not have a duty to provide an asylum
application to a detained alien pending a credible fear
determination, it may do so upon request. 8 CFR 208.5(a). Thus,
aliens may be able to obtain an asylum application even before a
credible fear determination. Even in cases in which DHS does not
provide an asylum application while a credible fear determination is
pending, once a detained alien receives a positive credible fear
determination--and, thus, may become subject to proceedings under 8
CFR 1208.2(c)(1)--DHS would provide an application at that point
consistent with 8 CFR 208.5(a). Moreover, although it was not
addressed by commenters, the Department notes that, in conjunction
with DHS, it proposed a rule in June 2020 that was recently
finalized, Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review, signed by the Attorney
General and the Acting Secretary of Homeland Security on December 2,
2020, and--if it goes into effect, see note 12, supra--would
explicitly codify this requirement and ensure that it applies to
aliens in detention following the receipt of a positive credible
fear determination. 85 FR at 36267 (``Additionally, to ensure that
these claims [i.e., asylum claims by aliens who have received a
positive credible determination and are subject to proceedings under
8 CFR 1208.2(c)(1)] receive the most expeditious consideration
reasonably possible, the Departments propose to amend 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.''). In short, all detained aliens subject to
proceedings under 8 CFR 1208.2(c)(1) will have already received an
asylum application before those proceedings commence and before the
first hearing is even scheduled. Thus, aliens subject to the rule
will actually receive more than 15 days to file an asylum
application, even without an extension under 8 CFR 1208.4(d).
---------------------------------------------------------------------------
Additionally, the aliens affected by the 15-day filing deadline
have necessarily already considered and made a claim for asylum or
protection, either through the credible fear process or when faced with
removal or the denial of an application for admission under other
provisions. Accordingly, there is no reason to believe--and commenters
did not provide one--that such aliens cannot memorialize the claim they
recently made on an asylum application. To the contrary, the Department
expects that aliens with meritorious claims will generally welcome the
opportunity to have their
[[Page 81712]]
claims heard expeditiously by an immigration judge so that they may
obtain protection and the benefits of asylum as quickly as possible.
The Department again emphasizes that the alien may also seek an
extension of the filing deadline for good cause. 8 CFR 1208.4(d). Thus,
in appropriate circumstances, an alien may receive an extension of the
deadline in which to file an application, obviating the concerns
connected to many of the hypothetical scenarios raised by commenters.
The Department also reiterates that aliens may amend or supplement
the application later in proceedings, pursuant to an immigration
judge's discretion. Accordingly, aliens and counsel are welcome to
begin gathering evidence, including translating or coordinating
delivery of certain documents as referenced by commenters, at any time
and, subject to any separate filing deadlines set by the immigration
judge, may submit additional supporting evidence as it becomes
available.
The Department also notes that an alien's testimony alone ``may be
sufficient to sustain the applicant's burden without corroboration, but
only if the applicant satisfies the trier of fact that the applicant's
testimony is credible, is persuasive, and refers to specific facts
sufficient to demonstrate that the applicant is a refugee.'' INA
208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii). Thus, particularly for
meritorious claims, an alien may not need extensive documentation to
support his or her claim because an alien can meet the relevant burden
of proof through credible, persuasive, and specific testimony.
Commenters did not explain why aliens who would testify credibly,
persuasively, and specifically would need lengthy amounts of time to
file an application or to obtain supporting documentation, and the
Department is unaware of any such reasons.
The deadline itself does not preclude an immigration judge's full
consideration of the facts of a claim. Because applicants for asylum
and for withholding of removal bear the full burden of proof, see INA
240(c)(4)(A), 8 U.S.C. 1229a(c)(4)(A) (asylum); INA 241(b)(3)(C), 8
U.S.C. 1231(b)(3)(C) (withholding of removal), the alien is responsible
for ensuring that the immigration judge has all relevant facts to
consider. If, for example, an alien needs additional time to file an
application, the alien may request an extension for good cause. 8 CFR
1208.4(d). Likewise, if the application needs to be amended or
supplemented later in the proceedings due to evidence-issues, the alien
may request to amend or supplement the application. 8 CFR 1208.4(c).
Similarly, nothing in the rule prohibits an immigration judge from
granting a continuance to obtain corroborating evidence in appropriate
cases. Matter of L-A-C-, 26 I&N Dec. 516 (BIA 2015). Moreover, the rule
itself provides that immigration judges themselves may submit relevant
evidence consistent with their duty to develop the record in
appropriate circumstances. Through these mechanisms, the Department
provides aliens a full opportunity to present all relevant facts to an
immigration judge within the deadline, and there is no reason why the
establishment of a filing deadline for the application--as opposed to
supporting documents--would necessarily create a credibility issue for
the alien.
Although the rule referenced the possibility that, without a
deadline, aliens may attempt to delay proceedings, the Department does
not believe that is the case for all aliens, nor did the rule
exclusively consider or rely on that point in establishing the
deadline. For the reasons discussed above and in section II.C.4.a.iii,
the Department established the deadline and believes 15 days is an
appropriate timeframe in which an alien must file an application. The
Department disagrees with the commenters' conclusion that evidence-
related risks should simply incentivize aliens to reduce delays or else
accept those risks. The impact of delayed proceedings reaches far
beyond the alien's case; delays result in inefficiencies that affect
the entire immigration system. See generally 85 FR at 59694. In part
for that reason, the rule established the 15-day deadline rather than
rely on aliens responding to incentives or accepting the risks
associated with delays.
(2) Events Outside of the Alien's Control
Comment: Commenters argued that the 15-day filing deadline is too
short in effect due to various circumstances outside of the alien's
control that may preclude submission of the application within the
required time period. Commenters explained that the U.S. Postal Service
(``USPS'') or other carriers may be delayed. Relatedly, commenters said
that aliens' documents may have been lost or stolen in transit to the
United States.
Some commenters also alleged that DHS would seize documents at the
border, such that aliens would no longer have them in their possession
to include with an application for protection or relief.
Response: As an initial point, the Department notes that filing
delays and missing filing deadlines due to third-party carriers such as
the USPS are already a possibility in the current system for
considering asylum applications, and the rule does not alter that risk.
The Department is also unaware of any systemic issues with third-party
carriers delaying filings, and any isolated anecdotal instances
identified by commenters are redressable through existing procedures
such as a motion to accept an untimely filing. Immigration Court
Practice Manual, ch. 3.1(d)(ii), (iii) (July 2, 2020).
Moreover, as discussed supra, most aliens subject to the filing
deadline will be detained. Because detained hearings are generally
expedited, there is a greater possibility that the alien will be able
to file the application directly with the court and, thus, not need to
rely on an outside carrier. Nevertheless, even in cases in which there
is a legitimate carrier delay, nothing in the rule precludes an alien
from filing either a motion to accept the untimely filing, id., or an
extension of the filing deadline, 8 CFR 1204.8(d).
In addition, the Department emphasizes that an alien may begin the
application at any time. The 15-day deadline is merely 15 days from the
date of the first hearing with the immigration judge; thus, aliens are
not prohibited from beginning an application prior to the first
hearing, nor are they limited to only a single 15-day period to gather
evidence. As noted above, detained aliens will have already a copy of
an asylum application from DHS prior to their first hearing before an
immigration judge and, thus, will have had already more than 15 days to
complete the application even without an extension.
The Department is unaware of any practice by DHS of routinely
seizing documents from aliens at the border and failing to maintain or
to return them, as appropriate. In the Department's experience, any
documents seized from aliens that are not returned are maintained in
DHS's administrative file on the alien and are available to the DHS
attorney representing the agency before the immigration judge.
Mechanisms for DHS to return documents to aliens in custody are
substantially beyond the scope of the rule. Nevertheless, as officers
of the court with an interest in justice in all immigration
proceedings, the Department expects that DHS attorneys would submit any
probative evidence in DHS's possession in the course of a proceeding
under 8 CFR 1208.2(c)(1) or (2) and would ensure that no
[[Page 81713]]
misrepresentations are made to an immigration judge.
Comment: Commenters explained that it usually takes USCIS three to
five weeks to issue the receipt that the rule requires be attached to a
``complete'' application; thus, submitting a complete application
within 15 days is impossible and outside of a practitioner's or alien's
control.
Response: The Department acknowledges the commenters' concerns
regarding timing with USCIS to receive a fee receipt, although in the
Department's experience, USCIS typically provides a one-day turnaround
in issuing fee receipts and most receipts are issued within seven days.
Moreover, USCIS allows electronic payment for some of its most common
applications, USCIS, Forms Available to File Online (June 11, 2020),
https://www.uscis.gov/file-online/forms-available-to-file-online, and
the Department does not know whether USCIS intends to allow electronic
payment for asylum applications if the injunction on charging a fee is
lifted. Nevertheless, in response to commenters' concerns, the
Department has amended 8 CFR 1208.4(d) and related cross-references to
that regulation to allow for submission of alternative proof of payment
in the event that an alien has not received a fee receipt from USCIS
within the filing deadline. See section I.C.1 for further discussion
regarding this change.
(3) Concerns Related to the Complexity of the Form I-589
Comment: Commenters argued that the 15-day filing deadline is too
short due to the complexity of the Form I-589 and most applicants' lack
of English-language proficiency. Commenters explained that aliens must
usually find a translator, interpreter, and counsel to fill out the
form and prepare certain documents. Commenters alleged that this
process often takes weeks but that such assistance is crucial.
Response: Again, the Department notes that regulations have
contained a 10-day application filing deadline for many years for a
particular category of asylum seekers, with no noted opposition or
complaints, including concerns about the complexity of the form or its
requirement to be completed in English. 8 CFR 1208.5(b)(1)(ii).
Further, as discussed above, the rule provides an alien an opportunity
to request an extension of the deadline if the alien needs additional
time to complete the form. Additionally, most aliens with pending
asylum cases, 85 percent, have representation, and an alien's
representative can assist with completing the application or, as
appropriate, requesting an extension of the filing deadline. EOIR,
Current Representation Rates (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1062991/download.
As discussed, supra, in practice, aliens subject to the rule will
have additional time beyond 15 days to complete an asylum application,
even without an extension, and the Department disagrees with commenters
that the Form I-589 is too complex for aliens to complete within weeks.
The substantive portion of the Form I-589 is currently eight pages,
half of which call for biographic information and half of which request
information about the alien's claim.\25\ Tens of thousands of aliens--
and hundreds of thousands in recent years, EOIR, Total Asylum
Applications (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1106366/download--whose first language is not English file for asylum
every year, and there is simply no indication that applicants cannot
complete the application and file it within a few weeks.\26\ In short,
although the Department acknowledges the commenters' concerns and has
fully considered, they are ultimately unpersuasive.
---------------------------------------------------------------------------
\25\ If the recent joint rulemaking, Procedures for Asylum and
Withholding of Removal; Credible Fear and Reasonable Fear Review,
signed by the Attorney General and the Acting Secretary of Homeland
Security on December 2, 2020, goes into effect, the substantive
portion of the Form I-589 will increase to thirteen pages, though
only nine of those pages call for information about an alien's
claim.
\26\ The Department also notes there is a plethora of
information regarding asylum available to aliens in multiple
languages from pro bono or nonprofit organizations or from
international organizations. For example, the UNHCR maintains a
Spanish-language translation of the instructions for the Form I-589,
https://www.unhcr.org/585ae89c4.pdf (last visited Dec. 4, 2020), and
multiple advocacy organizations within the United States, including
ones affiliated with commenters opposing the rule, have created
Spanish-language versions of the form itself, e.g., Immigration
Justice Campaign, I-589 in Spanish, https://immigrationjustice.us/get-trained/asylum/application-declaration-evidence/sample-i-589-in-spanish/ (last visited Oct. 31, 2020). Although non-English versions
of the I-589 are not official, they reflect a much greater
availability of information to asylum seekers in languages other
than English--and thus a greater capacity to complete the form in a
timely manner--than most commenters acknowledged.
---------------------------------------------------------------------------
The Department believes the 15-day deadline provides sufficient
time for the alien, in coordination with counsel, an interpreter, or
translator if the alien so chooses, to apply for relief, particularly
because the actual deadline will be more than 15 days in practice and
because an alien may request an extension as appropriate. Further, the
Department reiterates that the 15-day timeframe begins from the date of
the first hearing before the immigration judge. An alien is not
precluded from beginning the application or seeking assistance from
counsel, an interpreter, or a translator to prepare the application
before the first hearing.
(4) Concerns Related to Aliens' Personal Circumstances and Challenges
Comment: Commenters also explained that aliens often have limited
financial resources, are usually uneducated or even illiterate, have
experienced trauma, and are in need of mental health resources.
Considering those facts, commenters explained that 15 days was
especially insufficient to secure representation or complete the form
on their own, let alone pay the filing fee.
Response: For many of the same reasons noted above, the Department
finds these concerns to be both gross generalizations and unpersuasive.
The Department does not have data--and commenters did not provide any--
and, thus, declines to agree with a blanket characterization that most
aliens applying for asylum are illiterate or in need of mental health
treatment. Further, commenters raising these issues did not engage
with, inter alia, the existence of a longstanding 10-day deadline for
filing an asylum application for a particular category of applicants, 8
CFR 1208.5(b); the availability of an extension of the 15-day deadline
for good cause; the fact that most aliens applying for asylum are
represented; the fact that all aliens subject to the rule will, in
reality, have more than 15 days to file the application; the
demonstrated ability of approximately 200,000 aliens to file for asylum
in FY 2019 and FY 2020; the desire of aliens with meritorious claims to
have those claims adjudicated quickly; the longstanding regulatory
directive to complete asylum cases of detained aliens expeditiously;
and, the risks associated with needless delays in asylum adjudications,
including the degradation of evidence. To the extent that commenters
posited hypothetical scenarios about particular characteristics of
aliens, the Department notes that if such scenarios are reflected by
actual applicants, then the immigration judge can consider whether any
of the factors referenced by the commenters warrant an extension of the
filing deadline.
(5) Concerns That the Deadline Is Too Short for Preparation by Counsel
Comment: Commenters explained that even if an alien was able to
timely hire counsel, counsel would need more than 15 days to prepare
and submit the
[[Page 81714]]
application. Commenters provided examples of common challenges faced by
counsel when working with detained aliens, which they claimed have only
been exacerbated by the pandemic. Examples include: Difficulty in
arranging meetings with aliens at detention centers, especially with
pandemic-related restrictions on visitors; difficulty in securing
interpreters; and gathering evidence. Many commenters explained that
representation made a significant difference to the likelihood of
aliens' success.
Commenters also stated that the 15-day period is too short of a
time period to prepare a sufficient application that is sufficiently
thorough to meet the higher burden of proof required for success on the
application as opposed to the lower standard for credible fear reviews.
Commenters explained that the rule failed to acknowledge the difference
between the burden of proving ``significant possibility'' of succeeding
on an asylum claim required to establish credible fear and the burden
of proving every element of an asylum claim under Matter of A-C-A-A-,
28 I&N Dec. 84 (A.G. 2020). Relatedly, other commenters claimed the
rule's reasoning that ``there is no reason not to expect the alien to
be prepared to state his or her claim as quickly as possible,'' 85 FR
at 59694, improperly conflated the significant possibility standard
used in the credible fear interview with the preponderance of the
evidence standard used at the hearing. Commenters explained that the
distinction between these standards--one imposing a reduced burden
while the other imposed a greater burden that requires a fully
developed record to satisfy all elements of the claim--demonstrates
that aliens who satisfy the lesser burden are not necessarily ready to
satisfy the greater burden in such a short timeframe. In short, given
the increased burden of proof, commenters stated that 15 days would be
far too short to prepare the application, despite the alien having met
the lesser burden of proof in the credible fear interview.
Response: Again, commenters either misread or affirmatively
misstated the contents of the rule. Nothing in the rule limits the
alien, or the alien's representative, to a single 15-day period to
prepare the application; rather, the application must be submitted
within 15 days of the alien's first hearing before the immigration
judge. Thus, the alien will have more than 15 days to prepare the
application, an alien or the alien's representative may begin to
prepare the application or gather evidence at any time, the alien may
seek an extension of the filing deadline as appropriate, and the alien
may supplement the application consistent with existing regulations. To
the extent that commenters raise concerns that COVID-19 has created or
exacerbated logistical challenges for representatives, the Department
notes that cases of detained aliens, such as those who are subject to
the rule, have generally been heard during the pandemic to avoid
raising significant questions about prolonged detention and that DHS
has made arrangements to ensure unimpeded communications between aliens
and representatives. See, e.g., Nat'l Immigration Project of Nat'l
Lawyers Guild v. Exec. Office for Immigration Review, 456 F. Supp. 3d
16, 22-23 (D.D.C. 2020) (summarizing DHS actions taken to ensure
communication between detained aliens and representatives continue
during the outbreak of COVID-19). In isolated instances in which
communication between a representative and a detained alien has been
interrupted due to COVID-19, the Department reiterates that the rule
provides for an extension for good cause, 8 CFR 1208.4(d).
The Department did not conflate the burdens of proof in credible
fear interviews and the merits of asylum adjudications. The Department
recognizes the distinction between the burdens of proof in the
interview and the hearing but believes the rule's timeframe is
sufficient for aliens to file their application and meet the requisite
burden of proof. See INA 240(c)(4)(a), 8 U.S.C. 1229a(c)(4)(A) (burden
of proof for asylum); INA 241(b)(3)(C), 8 U.S.C. 1231(b)(3)(C) (burden
of proof for withholding of removal). The Department referenced the
interview in the proposed rule simply to demonstrate that aliens who
pass the credible fear interview are on notice of their eligibility for
various forms of relief or protection, that such aliens would logically
be expected to want to perfect an application for asylum and soon as
possible thereafter, and that it is not unreasonable to expect an alien
who has passed a credible fear screening to be anticipating and
preparing for consideration of their ultimate application for asylum,
including the preparation of their application and gathering of
evidence, especially if the alien's claim is meritorious.
(6) The 15-Day Filing Deadline Will Limit the Availability of Low Cost
or Pro Bono Legal Services
Comment: Commenters alleged that the 15-day deadline would put
undue pressure on services funded by local governments, as well as
nonprofit organizations and pro bono volunteers, including clinics and
law students, to assist aliens with their applications in an effort to
reduce the likelihood that applications would be rejected. Commenters
specifically asserted that the deadline would interfere with local
government investments into funding legal service providers,
specifically such providers' case management processes. Relatedly,
commenters explained that the deadline would require nonprofit
organizations and clinics to substantially change their operations and
would limit the number of aliens they could assist. For example,
because students working in law clinics take a full course load in
addition to taking a pro bono case, commenters explained that they
would be unable to devote the hours necessary to meet the 15-day
deadline, thus preventing them from taking cases, which in turn would
harm aliens who rely on such assistance.
Response: For all of the reasons previously given--including, inter
alia, the existence of a longstanding 10-day deadline for a particular
category of asylum applicants with no noted effects on low cost or pro
bono representation, the similar longstanding existence of immigration
judge authority to set deadlines for filing applications for relief,
the availability of an extension of the 15-day deadline for good cause,
the desire of aliens with meritorious claims to have those claims
adjudicated quickly, the longstanding regulatory directive to complete
asylum cases of detained aliens expeditiously, and, the risks
associated with needless delays in asylum adjudications, including the
degradation of evidence--the Department believes that a general 15-day
filing period, while providing for exceptions where the immigration
judge finds good cause, strikes the appropriate balance between
expediency and fairness and would not impact the availability of low
cost or pro bono representation. To the contrary, ensuring that
detained aliens file an asylum application expeditiously may help
ensure that a law school clinic can assist the alien before a student
completes the clinical course or graduates. Cf. Registry for Attorneys
and Representatives, 78 FR 19400, 19404 (Apr. 1, 2013) (declining to
require law students to register with EOIR due to, among other things,
``the transient nature of law students' participation in clinical
programs and the limited circumstances under which students can
represent individuals before EOIR . . . . the absence of any mechanism
to inform EOIR when a student leaves a program . . . [and the lack of
a]
[[Page 81715]]
regulatory provision permitting a law student to appear before EOIR if
not enrolled in a `legal aid program or clinic,' [making] it . . .
problematic for those students to remain registered after leaving a
clinical program''). Similarly, because lengthy delays in immigration
proceedings often dissuade pro bono representation, ensuring
expeditious consideration of asylum applications filed by detained
aliens may encourage more pro bono representation. See, e.g., HRF
Report supra. To the extent that commenters posited hypothetical
scenarios about particular low cost or pro bono service providers or
particular types of aliens, the Department notes that if such scenarios
are reflected by actual applicants, then the immigration judge can
consider whether any of the factors referenced by the commenters
warrant an extension of the filing deadline.
Further, nothing in this rule requires the diversion of resources
or alteration of the mission of any low cost and pro bono legal service
providers, including nonprofit organizations, pro bono volunteers,
clinics and law students, and government-funded representatives, beyond
what is already required by existing regulations and professional
responsibility requirements. In other words, immigration judges already
possess the authority to set application filing deadlines, 8 CFR
1003.31(c), and asylum cases of detained aliens are already subject to
expeditious processing, 8 CFR 1208.5(a). Further, practitioners are
already prohibited from taking on more work than they can handle
competently. 8 CFR 1003.102(q)(1). Thus, pro bono organizations already
operate under the conditions outlined in this rule, and commenters did
not identify any changes that the rule itself would require that are
independent of longstanding and well-established regulatory
requirements.
Furthermore, the Department believes that low cost and pro bono
legal service providers, including nonprofit organizations, pro bono
volunteers, including clinics and law students, and government-funded
representatives, can meet this deadline, absent situations in which the
deadline may be extended for good cause. Given the alien's already-
limited available avenues for relief, the common goal of providing
relief or protection to aliens with meritorious claims as quickly as
possible, and the risk of loss or degradation of evidence with the
passing of time--none of which were challenged by commenters, including
low cost and pro bono organizations themselves--the Department believes
it is prudent to establish the 15-day deadline. Although the Department
acknowledges that nonprofit organizations, pro bono volunteers, and
government-funded representatives, like all legal representatives, may
face unforeseen challenges confronting deadlines set by a judge, the
Department is confident that such representatives will be able to
handle such deadlines, just as they do in other courts and just as they
handle all regulatory changes inherent across government agencies, and
will continue to be able to provide assistance and resources to aliens
in proceedings before EOIR.
Finally, the Department notes that nothing in the rule prohibits
nonprofits, pro bono groups, local government-funded representatives,
or any other class of representatives from taking on an alien's case at
a later point in the proceedings. An alien who obtains counsel may
choose a representative at any point in the proceedings, including
after the filing of an application, and the ability to provide
representation does not require assistance from the very first hearing.
Thus, low cost or pro bono organizations, local government-funded
representatives, and law school clinics realistically have more
opportunities to provide assistance that many commenters suggested.
iii. 15-Day Deadline Is Arbitrary
(1) In General
Comment: Commenters generally characterized the 15-day deadline as
being arbitrarily short. Commenters expressed concern that the
Department failed to include specific data regarding the selection of
15 days as the specific deadline for filing an asylum application in
asylum-and-withholding-only proceedings rather than some other period
of time. Commenters alleged that the Department's reasoning for the
deadline conflated efficiency with speed.
Commenters also stated that the deadline was arbitrary because the
Department's reasoning was flawed: Commenters stated the application
process and the adjudication process were distinct from one another
with separate time periods. Thus, commenters alleged that changing the
time limit for the application process would not affect the separate
period of time required for adjudication.
Response: The Department disagrees that the 15-day deadline is
arbitrary, unrealistic, or unjust. First, the current regulation at 8
CFR 1208.5(a) directs that ``[w]here possible, expedited consideration
shall be given to applications of detained aliens'' (emphasis added).
The Department believes that establishing a deadline will better
provide expedited consideration for aliens described in 8 CFR
1208.2(c)(1) and 1208.4(b)(3)(ii). Second, and relatedly, EOIR has had
a longstanding policy of allowing asylum merits hearings for detained
aliens to be scheduled within 14 days of a master calendar hearing with
no noted objections or problems with that policy. See, e.g., EOIR
Operating Policies and Procedures Memorandum (``OPPM'') 00-01, Asylum
Request Processing at 8 (Aug. 4, 2000) (``Generally, when setting a
case from the Master Calendar to the Individual Calendar, a minimum of
14 days should be allowed before the case is set for the Individual
Calendar.''); EOIR OPPM 13-03, Guidelines for Implementation of the ABT
Settlement Agreement at 6 (Dec. 2, 2013) (``Generally, when setting a
detained [asylum] case from a master calendar hearing to an individual
calendar hearing, a minimum of 14 days should be allowed.'').\27\
Because--for over two decades with no noted challenge--the Department
has found two weeks a potentially sufficient amount of time to prepare
a case for a merits hearing on a detained alien's asylum application,
it finds that 15 days is similarly a sufficient time to simply file the
application, particularly because, as discussed, supra, the alien will
actually receive more than 15 days to do so. Third, in determining an
appropriate deadline, the Department considered the current regulation
establishing a 10-day deadline for detained crewmembers to file an
application for asylum. 8 CFR 1208.5(b)(1)(ii). Because detained
crewmembers are listed in the regulation at 8 CFR 1208.2(c)(1) as a
class of aliens subject to asylum-and-withholding-only proceedings, the
Department determined it was appropriate to set a comparable deadline
for other classes of aliens subject to asylum-and-withholding-only
proceedings included in 8 CFR 1208.2(c)(1), as well as aliens subject
to withholding-only proceedings under 8 CFR 1208.2(c)(2).
---------------------------------------------------------------------------
\27\ Although OPPM 13-03 has been rescinded because the ABT
Settlement Agreement expired in 2019, EOIR maintains a policy of
providing at least 14 days between a master calendar hearing and an
individual hearing on an asylum application for detained aliens.
---------------------------------------------------------------------------
Regarding commenters' concerns about the lack of supporting data,
the Department notes first that because each asylum application is
adjudicated on a case-by-case basis and each application will vary
accordingly in its facts and support, there is no common metric for
determining how long it will typically
[[Page 81716]]
take an alien to fill out and submit a Form I-589 because there is not
a ``typical'' asylum case. Thus, the data suggested by commenters is
not available and is untraceable due to the inherently fact-specific
nature of each case. Moreover, commenters did not suggest that such
data was available or could be obtained. To the extent that the PRA, 44
U.S.C. 3501 et seq., offers data and a potential metric for completing
and submitting an asylum application, the Department notes that--in
contrast to commenters' concerns--it supports an even quicker deadline
than that proposed by the Department. See Form I-589 Instructions at 14
(Aug. 25, 2020), https://www.uscis.gov/sites/default/files/document/forms/i-589instr.pdf (providing a response time of 12 hours,
``including the time for reviewing instructions, and completing and
submitting the form'').\28\ As discussed, the provision of the rule
setting a deadline follows from well-established comparable regulations
or policies and is not intended to turn on data. Nevertheless, even if
it were, the best available data regarding the time it takes to
complete the Form I-589--i.e., the PRA determination--supports the
deadline chosen by the Department.
---------------------------------------------------------------------------
\28\ If the recent joint rulemaking, Procedures for Asylum and
Withholding of Removal; Credible Fear and Reasonable Fear Review,
signed by the Attorney General and the Acting Secretary of Homeland
Security on December 2, 2020, goes into effect, the response time
for the Form I-589 will increase to 18.5 hours. That length of time
to complete the application would still support the Department's
position that between 15 and 38 days--if not longer based on
extensions due to good cause--is sufficient time to complete the
Form I-589. See also note 22, supra.
---------------------------------------------------------------------------
Additionally, the Department emphasizes that the deadline is an
exercise of the Attorney General's statutory authority and judgement 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). Congress acknowledged that there may be
instances in which the Attorney General may have to act in order to
effectuate the statutory scheme. And, given the statute's silence on a
filing timeframe for aliens in asylum-and-withholding-only proceedings,
the Department presumes Congress intended for the Attorney General to
determine such timeframe as necessary.
In drafting the rule, the Department considered that the particular
aliens affected--those in asylum-and-withholding-only proceedings--are
(1) already subject to removal orders, denied applications for
admission, or, for crewmembers, denied permission to land; (2)
generally detained; and (3) solely limited to claims for asylum and
withholding of removal, which are presented at the outset of the
proceeding. See 85 FR at 59694. Given the unique position of these
aliens, the Department concluded there was ``no reason not to expect
the alien to be prepared to state his or her claim as quickly as
possible,'' thereby enabling timely provision of relief or protection
for meritorious claims. Id. The rule also noted that delaying
proceedings risked degradation or loss of evidence, which could affect
adjudication of the claim.
The Department recognizes that the deadline for filing the
application is distinct from the general 180-day deadline for
adjudicating the application established by INA 208(d)(5)(A)(iii), 8
U.S.C. 1158(d)(5)(A)(iii), and the rule as a whole addresses both the
filing deadline and the adjudication deadline. Finally, the Department
notes that the rule does not conflate an interest in efficiency with
pure speed, as commenters claimed. As discussed throughout, the rule is
rooted in concerns about the expeditious consideration of claims made
by detained aliens, the need to ensure meritorious claims are
adjudicated as swiftly as possible, the risk of evidence becoming
stale, and the expectation that aliens who have recently claimed a fear
of persecution or torture will be well-situated to perfect that claim
quickly through the filing of an asylum application. In short, the
Department--as well as asylum applicants and DHS--has a strong interest
in adjudicating cases expeditiously, particularly cases of valid claims
for asylum, and the rule does not simply make proceedings more
efficient for the sake of speed alone.
(2) Arbitrary Because the Deadline Demands Expediency Not Followed by
the Government Itself
Comment: Some commenters alleged that the rule creates an arbitrary
deadline because it demands expediency that commenters alleged EOIR and
DHS do not follow. Commenters alleged that DHS routinely fails to file
notices to appear (``NTA'') with EOIR for more than a year. Likewise,
commenters alleged that it takes EOIR six months to a year to schedule
a hearing. Commenters explained that these delays by EOIR and DHS
impose an unreasonable burden on aliens to constantly check the
automated system to determine when they can file.
In a similar vein, commenters surmised that the Department-
facilitated general Legal Orientation Program (``LOP'') would be unable
to meet alien's needs from the 15-day deadline. Citing to the LOP
Cohort Analysis Phase II study,\29\ commenters emphasized that 24% of
participants failed to receive any services until after their first
hearing, while participants who received services prior to their first
hearing received services on average only seven days prior to the
hearing.
---------------------------------------------------------------------------
\29\ See Executive Office for Immigration Review, LOP Cohort
Analysis: Phase II (Jan. 29, 2019), https://www.justice.gov/eoir/file/1125621/download.
---------------------------------------------------------------------------
Some commenters stated that the 15-day deadline was arbitrary
because backlogs in the immigration courts would preclude review of
such applications for months or years. Commenters stated that the rule
failed to address the inefficiencies caused by the Department itself,
such as hiring new immigration judges without hiring support staff,
restricting immigration judges' ability to manage their dockets, and
shifting prioritization of particular dockets.
Response: As an initial point, many commenters failed to apprehend
that most aliens subject to the rule will be detained. Consequently,
DHS is unlikely to wait over a year to file a charging document, cf. 8
CFR 287.3(d) (except in an emergency or exceptional circumstance DHS
will determine within 48 hours of detention whether to file an NTA),
and EOIR is unlikely to wait six months to a year to schedule a
hearing, EOIR Policy Memorandum 20-07, Case Management and Docketing
Practices at 2 (Jan. 31, 2020) (detained cases should be entered into
EOIR's case management system within three days of filing the charging
document), https://www.justice.gov/eoir/page/file/1242501/download.
Similarly, detained aliens are unlikely to need to check the automated
case system to determine when to file an application.\30\
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\30\ Even if an alien is not detained, he or she would not need
to check the automated case system to determine when to file. The
rule clearly states that the application deadline is 15 days after
the first hearing, which the alien will have attended. Thus, an
alien will always know when the application is due.
---------------------------------------------------------------------------
This rule does not purport to address every inefficiency in the
U.S. immigration system. The 15-day filing deadline instead is designed
to increase one efficiency in asylum-and-withholding-only proceedings--
the timeframe for aliens in such proceedings to file an application for
[[Page 81717]]
protection or relief.\31\ As explained above, that timeframe is not
arbitrary; rather, it was promulgated to address a number of the
Department's concerns. See generally 85 FR at 59693-94. Thus, the
commenters' concerns with other inefficiencies at DHS and EOIR,
including the automated system and the LOP,\32\ are outside the scope
of this particular rulemaking.
---------------------------------------------------------------------------
\31\ In recent rulemakings, the Department has sought, in part,
to reduce various inefficiencies throughout the immigration system.
See, e.g., Appellate Procedures and Decisional Finality in
Immigration Proceedings; Administrative Closure, 85 FR 52491 (Aug.
26, 2020) (proposed) (addressing inefficiencies in case
adjudications at the BIA); Expanding the Size of the Board of
Immigration Appeals, 85 FR 18105 (Apr. 1, 2020) (interim rule)
(adding two Board member positions to the BIA so that the BIA may
more efficiently and timely adjudicate appeals); Organization of the
Executive Office for Immigration Review, 84 FR 44537 (Aug. 26, 2019)
(interim rule) (providing, in part, for more efficient disposition
of cases through a delegation of authority); EOIR Electronic Filing
Pilot Program, 83 FR 29575 (June 25, 2018) (public notice) (creating
a pilot program to test an electronic filing system that would
greatly improve immigration adjudication processing in the
immigration courts and eventually the BIA).
\32\ The Department notes that the same study cited by
commenters disclosed that the general LOP cost the government over
$100 million annually, increased an alien's length of detention, did
not generally affect an alien's case outcome, and did not increase
representation for detained aliens. See EOIR, LOP Cohort Analysis at
4 (Sept. 5, 2018), https://www.justice.gov/eoir/file/1091801/download; cf. 5 CFR 2635.101(b)(11) (requiring the disclosure of
government waste). Consequently, even prior to the NPRM, the general
LOP provided no benefit to detained aliens, and the rule's impact on
detained aliens served by the general LOP is accordingly minimal, if
any.
---------------------------------------------------------------------------
The Department disagrees with commenters' allegation that the rule
is arbitrary because the backlog would nonetheless delay hearings for
such applications. Again, commenters generally did not apprehend that
the rule will apply principally to detained aliens, whose cases are
generally adjudicated within 180 days already, EOIR, Median Completion
Times for Detained Cases (Oct. 23, 2019), https://www.justice.gov/eoir/page/file/1163621/download, and do not constitute a backlog. Because
detained cases are already subject to expeditious consideration, 8 CFR
1208.5(a), the rule should not create new delays, contrary to
commenters' assertions.
(3) Arbitrary Because the Rule Failed To Analyze Certain Impacts of the
Rule
Comment: Commenters asserted that the rule was arbitrary because it
failed to analyze the impact of other proposed or enacted regulatory
changes that commenters explained would increase the number of aliens
subject to the 15-day filing deadline.\33\ Commenters noted this
increase is contrary to the small number of alien crewmembers subject
to the current 10-day filing deadline, to which the Department compares
the proposed rule.
---------------------------------------------------------------------------
\33\ See also section II.C.4.a.i above for further discussion of
these proposed changes.
---------------------------------------------------------------------------
Response: As discussed, supra, the number of aliens who may be
placed in asylum-and-withholding-only proceedings and, thus, subject to
the deadline established by the rule is speculative, unpredictable, and
ultimately wholly outside the Department's control. See Home Box
Office, 567 F.2d at 35 n.58 (``Moreover, comments which themselves are
purely speculative and do not disclose the factual or policy basis on
which they rest require no response.''). The Department is unable to
accurately or precisely predict the future number of aliens who would
both enter or seek to enter the United States illegally and, in turn,
be placed into asylum-and-withholding-only proceedings following a
positive credible fear or reasonable fear interview; further,
commenters did not offer a prediction, apart from unsupported
generalizations. Similarly, DHS has autonomy over its own enforcement-
related decisions and is statutorily tasked by Congress with
``[e]stablishing national immigration enforcement policies and
priorities.'' Homeland Security Act of 2002, Public Law 107-296,
section 402(5), 116 Stat. 2135, 2178 (codified at 6 U.S.C. 202(5)).
Consequently, the Department has neither control over nor the means to
predict how many aliens DHS may subject to expedited removal procedures
as opposed to other enforcement options or the exercise of
prosecutorial discretion. Thus, while the Department is cognizant that
other rules may have some impact on immigration proceedings relevant to
this rule, the size and nature of that impact is speculative. Moreover,
even if that impact were predictable, the Department has determined, as
a matter of policy, that the benefits of the rule--e.g., better
effectuation of statutory directives, the expedited consideration of
meritorious asylum claims, and the elimination of provisions that are
immaterial to EOIR--far outweigh any negative impacts that the rule
would have, either singularly or in tandem with other rules. Such
balancing of preferences is not arbitrary and capricious.
Moreover, assuming, arguendo, that other rules increase the number
of aliens subject to asylum-and-withholding proceedings under 8 CFR
1208.2(c), the provisions of this rule would remain important to
effectuate. As discussed, supra, aliens subject to proceedings under 8
CFR 1208.2(c) are generally subject to detention unless paroled by DHS.
Both parties, especially in cases of aliens with meritorious claims,
and the immigration courts have an interest in the expeditious
consideration of asylum claims made by detained aliens. In fact,
current regulations already provide for such expedited consideration, 8
CFR 1208.5(a), and commenters did not explain why it would be arbitrary
and capricious for detained aliens to receive expedited consideration
of their asylum claims consistent with existing regulations. The rule
simply reaffirms the importance of well-established principles, namely
adhering to statutory deadlines and providing expedited consideration
of asylum claims for detained aliens, especially meritorious claims.
Such re-affirmation is not arbitrary and capricious.
Furthermore, the Department's reasoning for the 15-day deadline
does not rely on or involve the number of aliens who may be affected.
In other words, the proposed rule at 85 FR 36264, and the recently-
finalized rule, had no bearing on the reasoning underlying the deadline
in the rule at hand. In the proposed rule, 85 FR at 59693-94, the
Department explained that aliens in asylum-and-withholding-only
proceedings are ``generally already subject to removal orders, denials
of applications for admission, or denials of permission to land in the
case of crewmembers, and are often also detained . . . . [T]heir only
avenues for relief or protection are applications for asylum, statutory
withholding of removal, and protection under the regulations issued
pursuant to legislation implementing U.S. obligations under the [CAT] .
. . and they would not be in asylum-and-withholding-only proceedings if
they had not already claimed a fear of persecution or torture upon
being returned to their home countries.'' The Department subsequently
concluded that because asylum and withholding of removal are the ``sole
issues to be resolved in the proceeding and are squarely presented at
the outset of the proceeding . . . there is no reason not to expect the
alien to be prepared to state his or her claim as quickly as
possible.'' 85 FR at 59694. In addition, the Department provided
further reasoning for its decision to establish a deadline: Delayed
filing risks delayed protection or relief for meritorious claims;
delayed filing increases the likelihood that evidence may degrade or be
lost; and applicants may simply delay proceedings, thus causing
inefficiencies in what should be a
[[Page 81718]]
streamlined proceeding. See id. The Department also noted that a
deadline was consistent with current regulations establishing a 10-day
deadline for detained crewmembers to file an asylum application, 8 CFR
1208.5(b)(1)(ii), and directing the agency to provide ``expedited
consideration'' to asylum applications filed by detained aliens, 8 CFR
1208.5(a). Id. None of these factors relies upon or is altered based on
the number of aliens subject to proceedings under 8 CFR
1208.2(c)(1).\34\
---------------------------------------------------------------------------
\34\ The Department notes, however, that to the extent
commenters argue more aliens will be in asylum-and-withholding-only
proceedings and subject to the 15-day filing deadline in the future,
such arguments further the Department's reasoning rather than
counter it. In other words, the Department's concerns to ensure
efficiency, accurate recall of claims, and avoiding gamesmanship are
greater if more proceedings are benefited than fewer.
---------------------------------------------------------------------------
Furthermore, pursuant to 5 U.S.C. 706(2)(A), an agency must
articulate a ``rational connection between the facts found and the
choice made.'' Burlington Truck Lines v. United States, 371 U.S. 156,
168 (1962). Those facts must be ``relevant'' and considered with no
``clear error in judgment,'' see Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 416 (1971), but a court will ``uphold a decision
of less than ideal clarity if the agency's path may reasonably be
discerned.'' Motor Vehicles Mfrs. Ass's of U.S., Inc. v. State Farm
Mutual Auto. Ins., 463 U.S. 29, 43 (1983) (quoting Bowman Transp. Inc.
v. Arkansas-Best Freight System, 419 U.S. 281, 286 (1974)). Under that
standard, the rule is not arbitrary and capricious. The rule clearly
discussed the relevant factors considered in establishing the 15-day
filing deadline, at least to an extent that the rule was ``reasonably
discerned.'' See 85 FR at 59693-94; see also section II.C.4.a.iii.(1),
supra.
Factors over which the Department has no control were considered,
but as discussed, they do not impact the nature of the rule. For
example, DHS's expansion of expedited removal stems from DHS's ``sole
and unreviewable'' authority to determine the scope of aliens to whom
expedited removal provisions may be applied. INA 235(b)(1)(A)(iii)(I),
8 U.S.C. 1235(b)(1)(A)(iii)(I). The Department and DHS are separate
agencies with distinct authorities and responsibilities, and EOIR
played no part in developing or implementing that notice. Further, the
notice bore no effect on the Department's decision to establish a
filing deadline for aliens in asylum-and-withholding-only proceedings
in an effort to address inefficiencies in the system and reduce delayed
protection or relief for meritorious claims. And, to the extent that
DHS's action may result in more aliens subject to proceedings under 8
CFR 1208.2(c)(1), that outcome, which is highly speculative, would not
undermine or alter the rule for the reasons given.
Comment: In addition, commenters explained that the rule should
have analyzed the impact of the deadline on aliens, counsel, and court
operations, including the reliance interests of those parties on the
current timeframe to seek and engage representation. Commenters stated
that the rule's lack of a cost benefit analysis on the 15-day deadline
evidenced the Department's failure to assess the harms caused by the
rule.
More specifically, commenters stated that the Department failed to
consider the ``severe consequences'' on aliens from imposing a 15-day
deadline, which they alleged could lead to denials of thousands of
asylum applications and subsequent orders of removal under the BIA's
decision in Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020). Commenters
stated this would deprive pro se aliens the opportunity to request
extensions or build a record to explain why they did not meet the
deadline. In regard to nonprofits, commenters stated that the
Department failed to consider that with such a short deadline, pro bono
attorneys would be less willing to take cases and nonprofits would be
unable to place attorneys with detained aliens. In regard to court
operations, commenters stated that the Department failed to consider
that courts would be overwhelmed by the number of pro se cases.
Response: As an initial point, commenters did not quantify the
asserted ``severe consequences'' they alleged would flow from the rule,
and because the Department believes such consequences are unsupported,
hypothetical, unrealistic, or based on an incorrect understanding of
the rule, it declines to seek to develop a metric for measuring them.
Moreover, most of the alleged ``harms'' asserted by commenters are, in
reality, founded in policy disagreements over a belief that not enough
asylum applications are being granted or simply repeat tendentious or
spurious claims about how the Department considers asylum cases under
the applicable law.
As with other rules issued by the Department, many, if not most,
commenters asserted that this rule was ``arbitrary and capricious,''
though nearly all of those assertions were ultimately rooted in the
rule's failure to adopt the commenters' policy preferences rather than
the identification of specific legal deficiencies. The Department has
considered all comments and looked at alternatives. The Department
understands that many, if not most, commenters opposing the rule
believe that most asylum applications are meritorious and, thus, would
prefer that nearly all applications for asylum be granted, that border
restrictions be loosened accordingly if not eliminated, and that the
Department, as a matter of forbearance or discretion, decline to follow
the law in situations where doing so would be beneficial to aliens. For
all of the reasons discussed in the NPRM, and reiterated herein,
however, the Department declines to adopt those positions. In short,
although the Department has considered the issues raised and policy
perspectives advanced by commenters, it finds them unpersuasive and
insufficient to warrant withdrawing the rule.
Similarly, the Department further understands that, at the least,
most commenters would prefer to maintain the status quo, believing that
it is preferable to the changes in the rule. The Department has been
forthright in acknowledging the changes created by the rule from the
status quo, but has also explained the reasoning behind those changes,
including the better effectuation of statutory directives, the
expedited consideration of meritorious asylum claims, and the
elimination of provisions that are immaterial to EOIR. The Department
has acknowledged changes in positions, where applicable, it has
provided good reasons for those changes, it believes the changes are
better implementations of the law than the status quo, and it has
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).
Many of commenters' concerns are also addressed, supra, and the
Department reiterates its prior responses accordingly. For example,
commenters did not engage with the many reasons supporting the deadline
in the rule--e.g., the existence of a longstanding 10-day deadline for
a particular category of asylum applicants with no noted effects on pro
bono representation, the similar longstanding existence of immigration
judge authority to set deadlines for filing applications for relief,
the availability of an extension of the 15-day deadline for good cause,
the desire of aliens with meritorious claims to have those claims
adjudicated quickly, the longstanding regulatory directive to complete
asylum cases of detained aliens expeditiously, and, the risks
[[Page 81719]]
associated with needless delays in asylum adjudications, including the
degradation of evidence. The Department considered those issues, as
well as the ones raised by commenters, but determined for the reasons
given that a general 15-day filing period, while providing for
exceptions where the immigration judge finds good cause, strikes the
appropriate balance between expediency and fairness.
The Department further finds that the rule would not impact the
availability of pro bono representation. To the contrary, as discussed,
supra, ensuring expeditious consideration of asylum applications filed
by detained aliens may promote increased pro bono representation which
is often dissuaded by lengthy delays in immigration proceedings. See,
e.g., HRF Report supra (``In a February 2016 survey conducted by Human
Rights First of 24 pro bono coordinators at many of the nation's major
law firms, nearly 75 percent of pro bono professionals indicated that
delays at the immigration court are a significant or very significant
negative factor in their ability to take on a pro bono case for legal
representation before the court.''). To the extent that commenters
posited hypothetical scenarios about particular pro bono groups or
particular types of aliens, the Department notes that if such scenarios
are reflected by actual applicants, then the immigration judge can
consider whether any of the factors referenced by the commenters
warrant an extension of the filing deadline.
Overall, the Department believes that nonprofit organizations and
pro bono volunteers can meet this deadline, absent situations in which
the deadline may be extended for good cause. Given the alien's already-
limited available avenues for relief, the common goal of providing
relief or protection to aliens with meritorious claims as quickly as
possible, and the risk of loss or degradation of evidence with the
passing of time--none of which were challenged by commenters, including
pro bono organizations themselves--the Department believes it is
prudent to establish the 15-day deadline. Although the Department
acknowledges that nonprofit organizations and pro bono volunteers, like
all legal representatives, may face unforeseen challenges confronting
deadlines set by a judge, the Department is confident that such
representatives will be able to handle such deadlines, just as they do
in other courts and just as they handle all regulatory changes inherent
across government agencies, and will continue to be able to provide
assistance and resources to aliens in proceedings before EOIR.
The Department further notes that nothing in the rule prohibits
nonprofits, pro bono groups, or any other class of representatives from
taking on an alien's case at a later point in the proceedings. An alien
who obtains counsel may choose a representative at any point in the
proceedings, including after the filing of an application, and the
ability to provide representation does not require assistance from the
very first hearing. Thus, pro bono organizations have more
opportunities to provide assistance that many commenters suggested.
In drafting this rule, the Department considered the potential
impacts of the deadline on various referenced groups, but finds
assertions of deleterious impacts unsupported, grossly speculative, and
ultimately unpersuasive. The rule's extension for good cause, 8 CFR
1208.4(d), and the retained provision allowing for future amendments or
supplements to the application, 8 CFR 1208.4(c), stem from
consideration of aliens, counsel (including pro bono counsel), and
nonprofit organizations who may encounter unusual situations that
prevent them from meeting the deadline. 85 FR at 59694. Commenters'
concerns regarding ``thousands'' of denied applications and subsequent
orders of removal are speculative and overwrought almost to the point
of histrionic. In fact, commenters' concerns on this point appear to
tacitly suggest that most asylum claims are non-meritorious, as
commenters generally failed to address the need for detained aliens
with meritorious claims to have those claims adjudicated as efficiently
as possible.
The deadline, in and of itself, does not prevent aliens from
requesting an extension or explaining why they did not meet the
deadline. Aliens may request an extension at any point during the 15-
day timeframe following their initial hearing. See 8 CFR 1208.4(d).
Further, the deadline is not subject to retroactive application and
does not infringe on the reliance interests of aliens subject to the
current regulations.
In addition, a significant motivation for establishing the deadline
stemmed from the Department's consideration of inefficiencies in court
operations due to the delayed filing of applications. See 85 FR at
59693-94. Commenters' concerns that courts will be ``overwhelmed'' with
pro se cases is both speculative and unsupported by evidence. To be
sure, immigration courts have seen an increase in cases in recent years
due to increased illegal immigration, but the rule will neither
increase nor decrease the number of overall cases filed with the
immigration courts. See EOIR, Workload and Adjudication Statistics, New
Cases and Total Completions--Historical, https://www.justice.gov/eoir/page/file/1139176/download (reflecting that DHS filed a record number
of new cases--over 500,000--in FY 2019 and then filed the second
highest number of new cases--over 361,000--in FY 2020). Furthermore,
most asylum cases have legal representation notwithstanding this
dramatic increase in new case filings. See EOIR, Workload and
Adjudication Statistics, Current Representation Rates, https://www.justice.gov/eoir/page/file/1062991/download. Nothing in the rule
would logically cause representation rates to decline or suggests a
reason why aliens would be unable to secure representation. Moreover,
ample resources for pro se aliens are available in immigration court.
See, e.g., EOIR, List of Pro Bono Service Providers, https://www.justice.gov/eoir/list-pro-bono-legal-service-providers; EOIR, Pro
Bono Portal, https://probono.eoir.justice.gov/; EOIR, Immigration Court
Online Resource, https://icor.eoir.justice.gov/en/;cf. EOIR Launches
Resources to Increase Information and Representation (Oct. 1, 2020),
https://www.justice.gov/eoir/pr/eoir-launches-resources-increase-information-and-representation. In short, suggestions that immigration
courts will be ``overwhelmed'' by pro se cases are not rooted in the
current reality of asylum adjudications.
Finally, the Department considered the potential impact of the
deadline on nonprofit or pro bono organizations as discussed above. See
section C.4.a.ii(6), supra.
iv. Deadline Removes Immigration Judge Discretion
Comment: Commenters opposed the deadline because they alleged that
it removed all immigration judge discretion by requiring judges to deem
an application abandoned if a deadline is not met. Commenters stated
that if immigration judges did not exercise discretion in considering
the unique circumstances in each case, due process would be violated.
Commenters explained that such discretion was necessary for immigration
judges to manage their dockets, given that immigration judges were best
suited to set filing deadlines. Commenters also contended that the rule
allegedly did not allow for an immigration judge to further extend a
filing deadline beyond the initial extension for good cause.
[[Page 81720]]
Response: Again, commenters misapprehend the rule, existing
regulations, and the Department's administrative interests. Current
regulations, 8 CFR 1003.31(c), already provide that the ``Immigration
Judge may set and extend time limits for the filing of applications and
related documents and responses thereto, if any,'' and that ``[i]f an
application or document is not filed within the time set by the
Immigration Judge, the opportunity to file that application or document
shall be deemed waived.'' The rule does not change this longstanding
principle, and many commenters failed to acknowledge that immigration
judges already have well-established authority to set filing deadlines
and are already authorized to find applications abandoned for failing
to comply with such deadlines.
Instead, the rule acknowledges the inefficiency of the current
case-by-case system in which immigration judges may set varying filing
deadlines for similarly-situated cases. Such a situation is 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)); Marin-Rodriguez v. Holder,
612 F.3d 591, 593 (7th Cir. 2010) (``An agency may exercise discretion
categorically, by regulation, and is not limited to making
discretionary decisions one case at a time under open-ended
standards.''). The Department is appropriately using rulemaking to
provide guidance in order to streamline determinations consistent with
its statutory authority. Although the Department acknowledges that the
rule may proscribe immigration judge discretion to a degree, the rule's
promotion of consistency, clear deadlines, and continued expeditious
treatment of asylum claims, especially meritorious asylum claims, by
detained aliens far outweigh its limitation on immigration judge
discretion. 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.'' (internal citations
omitted)); see also Lopez, 531 U.S. at 243-44 (``[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.'' (internal
citations omitted)).
In addition, immigration judges are appointed by the Attorney
General and act as his delegates in cases that come before them. 8 CFR
1003.10(a). They exercise delegated authority in accordance with the
Act and from the Attorney General by way of regulations. 8 CFR
1003.10(b); see also INA 103(g)(2), 8 U.S.C. 1103(g)(2). As generally
explained by the Supreme Court, ``[i]f 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.'' Chevron, 467 U.S. at 843-44 (1984). This section of the
rule was promulgated in light of the Act's silence on a timeframe for
filing applications in asylum-and-withholding-only proceedings.
Regardless of whether immigration judges previously had discretion
under the regulations to set deadlines, this rule amends the
regulations to establish in asylum-and-withholding-only proceedings a
15-day deadline from the date of the alien's first hearing to file an
application. EOIR acknowledges this is a change from the previous
regulation; however, agencies are ``free to change their existing
policies'' if they provide a reasoned explanation for the change.
Encino Motor Cars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (citing
Nat'l Cable & Telecomm. Ass'n. v. Brand X internet Services, 545 U.S.
967, 981-982 (2005)). That explanation was provided in the proposed
rule, 85 FR at 59693-94, and is reiterated throughout this final rule.
Generally, the Department established a 15-day deadline, subject to an
extension for good cause, in order to reduce the risk of degradation or
loss of evidence, reduce the risk of delayed grants of protection or
relief for meritorious claims, accomplish the regulatory directive that
detained aliens receive ``expedited consideration'' of their
applications, and reduce inefficiencies caused by delayed filings. See
id.
Accordingly, consistent with applicable law and existing
regulations, the rule removes individual immigration judge discretion
only as it applies to the initial deadline for filing an application
for asylum and withholding of removal. See 85 FR at 59694. It does not
preclude immigration judges from managing their dockets. In fact, the
rule expressly provides discretion to immigration judges to extend the
filing deadline for good cause shown, 8 CFR 1208.4(d)(1), and the rule
does not affect immigration judges' discretion to allow an alien to
amend or supplement the application later in the proceedings, 8 CFR
1208.4(c).
This does not violate due process. Due process in immigration
proceedings requires notice and a meaningful opportunity to be heard,
neither of which are affected by this rule. See LaChance, 522 U.S. at
266 (``The core of due process is the right to notice and a meaningful
opportunity to be heard.''). Aliens in asylum-and-withholding-only
proceedings will continue to be provided notice of removability, 8 CFR
235.6, 1003.13 (defining ``charging document'' used by DHS to initiate
immigration proceedings before an immigration judge); have an
opportunity to present the case to an immigration judge, INA
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), and 8 CFR 1208.2(c); and
have an opportunity to appeal, 8 CFR 1003.1(b)(9).
Without an initial filing deadline, aliens have no established
timeframe in which to expect consideration of their applications for
relief or protection. The Department is unaware of any reason why an
alien with a valid claim for asylum would oppose a clear, defined
filing deadline, especially one that expeditiously allows the alien to
obtain the benefit he or she seeks (including release from detention),
in favor of uncircumscribed discretion that could delay consideration
of the alien's claims.\35\ In addition, without an initial filing
deadline, proceedings may be delayed, resulting in degradation or loss
of evidence that is oftentimes crucial to an alien's claims. The
Department is similarly unaware of why an alien would oppose a deadline
that facilitates expeditious presentation of oftentimes time-sensitive
evidence that may be
[[Page 81721]]
crucial to the outcome of the alien's case.
---------------------------------------------------------------------------
\35\ The Department recognizes and agrees with the Supreme
Court's observation that ``as a general matter, every delay works to
the advantage of the deportable alien who wishes merely to remain in
the United States.'' Doherty, 502 U.S. at 323. Thus, it is aware
that aliens without valid claims may likely prefer substantial
delays in the adjudications of their cases and, accordingly, oppose
any efforts to increase the efficiency of such adjudications.
Nevertheless, the Department finds any rationale for encouraging or
supporting the dilatory adjudication of cases both inherently
unpersuasive and wholly outweighed by the importance of timeliness
and fairness--especially to detained aliens with meritorious
claims--in adjudicating asylum applications.
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Finally, commenters misinterpret the rule in regard to the
extension provision. There is no limitation to a single good-cause
extension. The only requirement for the extension would be that the
alien must demonstrate good cause for any extension. Cf. Matter of L-A-
B-R-, 27 I&N Dec. at 405 (providing non-exhaustive factors for
consideration when determining whether or not a party has demonstrated
good cause for a continuance).
v. Deadline Raises Efficiency Concerns
(1) Agency Incorrectly Prioritizes Efficiency Above All Else
Comment: Commenters alleged that the deadline improperly
prioritizes efficiency over all other concerns and factors.
Response: Commenters are correct that this section of the rule
relates to efficiency. See 85 FR at 59694 (``[T]he deadline would
ensure only that the application is filed in a timely manner consistent
with the streamlined and focused nature of asylum-and-withholding-only
proceedings.''). However, commenters are incorrect that the Department
considered only efficiency to the exclusion of all other factors. As
discussed throughout this rule, the Department considered, inter alia,
that most aliens subject to the rule are detained, that aliens with
meritorious claims have a strong incentive to obtain relief--and
release from detention--as quickly as possible, that aliens who have
recently claimed a fear of persecution or torture will be well-situated
to perfect that claim quickly through the filing of an asylum
application, that most asylum applicants have representation, that
filing deadlines are a well-established part of immigration court
practice and are utilized by courts at all levels, that an even shorter
filing deadline has existed for many years for a particular class of
asylum applicants with no noted challenges or complaints, that delays
in adjudication may risk evidence degradation and may make it more
difficult to obtain pro bono representation, that the deadline is not
absolute because it may be extended in appropriate circumstances, and
that the rule does not alter longstanding rules and practices allowing
aliens to supplement an application and to seek to have an immigration
consider late-filed evidence. The Department has also fully considered
the issues raised by commenters and finds them largely unavailing for
the reasons given. Moreover, even if the comments were more founded or
persuasive, the Department nevertheless believes that the concerns
asserted by most commenters are outweighed by the benefits provided by
the rule, namely consistency in setting filing deadlines, better
effectuation of the regulatory directive to provided expeditious
consideration to adjudicating asylum applications of detained aliens,
faster resolution of meritorious claims, and better protection against
claims going stale due to delay.
In drafting the rule, the Department considered that the particular
aliens affected--those in asylum-and-withholding-only proceedings--are
(1) already subject to removal orders, denied applications for
admission, or, for crewmembers, denied permission to land; (2)
generally detained; and (3) solely limited to claims for asylum and
withholding of removal, which are presented at the outset of the
proceeding. See 85 FR at 59694. Given the unique position of these
aliens, the Department concluded there was ``no reason not to expect
the alien to be prepared to state his or her claim as quickly as
possible,'' thereby enabling timely provision of relief or protection
for meritorious claims. Id. The rule also noted that delaying
proceedings risked degradation or loss of evidence, which could affect
adjudication of the claim(s).
To be sure, the realities of the pending caseload and the continued
increase in new cases filed by DHS in immigration court should not be
underestimated. See EOIR, Adjudication Statistics: New Cases and Total
Completions--Historical (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1139176/download; see also EOIR, Adjudication Statistics:
Pending Cases, New Cases, and Total Completions (Oct. 13, 2020),
https://www.justice.gov/eoir/page/file/1242166/download. Further, the
regulation at 8 CFR 1208.5(a) provides that detained aliens should
receive ``expedited consideration.'' Consistent with those
observations, this deadline appropriately eliminates unnecessary delays
in what should be a streamlined proceeding.
Nevertheless, although the rule referenced the possibility that,
without a deadline, aliens may attempt to delay proceedings, the rule
did not exclusively rely on that point in establishing the 15-day
deadline. Further, most commenters failed to appreciate the rule's
acknowledgment of ``unusual situations'' in which an alien may need
additional time to file an application. Id. In such situations, despite
efficiency concerns, the regulation authorizes the immigration judge to
extend the deadline for good cause. 8 CFR 1208.4(d)(1). In short,
contrary to commenters' arguably tendentious views, efficiency does not
trump due process, and nothing in the rule suggests otherwise.
Comment: As an overarching concern, commenters claimed that the
Department is attempting to speed up proceedings, by imposing the 15-
day deadline, in the name of efficiency. Commenters alleged such action
violates due process because aliens and counsel are deprived of
meaningful presentation of their cases.
Response: The Department reiterates its response to similar
comments, supra, and adds the following further response. Due process
in immigration proceedings requires notice and a meaningful opportunity
to be heard, neither of which are affected by this rule. 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 Department will continue to
provide aliens in asylum-and-withholding-only proceedings notice of the
charges of removability, 8 CFR 235.6, 1003.13 (defining ``charging
document'' used by DHS to initiate immigration proceedings before an
immigration judge); an opportunity to present the case to an
immigration judge, INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii),
and 8 CFR 1208.2(c); and an opportunity to appeal, 8 CFR 1003.1(b)(9).
In short, nothing in the rule compromises the provision of notice to an
alien or an alien's ability to be heard on any asylum application. To
the contrary, the rule provides an alien clearer notice of the relevant
filing deadline and seeks to ensure that an alien will have the
opportunity to be heard before memories or other evidence fade. See
generally 85 FR at 59693-94.
Further, nothing in the rule inhibits an alien's ability to
meaningfully present his or her case. The alien will, in reality, have
more than 15 days to file an asylum application, and the immigration
judge does not adjudicate the application at the same time that it is
filed. An alien's testimony alone ``may be sufficient to sustain the
applicant's burden without corroboration, but only if the applicant
satisfies the trier of fact that the applicant's testimony is credible,
is persuasive, and refers to specific facts sufficient to demonstrate
that the applicant is a refugee.'' INA 208(b)(1)(B)(ii), 8 U.S.C.
1158(b)(1)(B)(ii). Thus, particularly for meritorious claims, an alien
may not need extensive documentation or preparation to support and
present his or her claim because an alien can meet
[[Page 81722]]
the relevant burden of proof through credible, persuasive, and specific
testimony. In appropriate cases, aliens can also request an extension
of the filing deadline and, if necessary, a continuance of any hearing.
In short, commenters' allegations that the rule prohibits aliens and
representatives from presenting their cases are wholly unfounded.
(2) Deadline Does Not Promote Efficiency
Comment: Commenters stated that the 15-day deadline would
incentivize the use of ``placeholder'' applications and boilerplate
language, increased filings of motions to amend and supplement, and
subsequent piecemeal submission of supplemental evidence. Commenters
stated that the Department failed to consider these administrative
burdens on both DHS, adjudicators, and court staff. The commenters
asserted that allowing at the outset adequate time to submit a well-
prepared application, rather than rush an application that consequently
needs further paperwork, would benefit the entire immigration system.
Response: As an initial point, commenters did not explain why these
allegations are unique to the rule. Many aliens currently file
``placeholder'' applications and boilerplate language, file motions to
amend and supplement, and submit supplemental evidence for review
piecemeal; thus, immigration judges are already well-accustomed to such
scenarios. Commenters' suggestion that the rule will cause more of
these actions is speculative at best, but even if it were more well-
founded, the Department expects any additional burdens to be minimal
because it would represent little change from the adjudicatory status
quo and immigration judges are already experienced at handling these
actions.
Additionally, commenters again misstate or misapprehend the rule.
It does not require all paperwork to be filed by the 15-day deadline--
only the application. Because the alien, by definition, will have
recently made his or her claim to DHS, the claim should be fresh and
ripe for memorialization. In fact, because memories fade over time, it
will generally be to the benefit of the alien to memorialize the claim
and file the application as soon as possible. Further, commenters
simply discount the availability of an extension of the deadline to
file the application, 8 CFR 1208.4(d), even though it should obviate
concerns about allegedly too-soon filing deadlines. Further, as stated
in the proposed rule, the purpose of the initial 15-day deadline was to
``ensure only that the application is filed in a timely manner
consistent with the streamlined and focused nature of asylum-and-
withholding-only proceedings.'' 85 FR at 59694. The Department
promulgates this rule in part to effectuate the regulatory directive of
8 CFR 1208.5(a) to provide these aliens with expedited consideration.
Finally, commenters' suggestions on this point may also implicate
ethics or professional responsibility issues. Although placeholder
applications with boilerplate language are not uncommon currently, in
certain circumstances the filing of such documents may warrant
disciplinary sanction. See 8 CFR 1003.102(u) (``Repeatedly files
notices, motions, briefs, or claims that reflect little or no attention
to the specific factual or legal issues applicable to a client's case,
but rather rely on boilerplate language indicative of a substantial
failure to competently and diligently represent the client'').\36\ To
the extent that commenters assert that the rule will cause
representatives to violate their ethical and professional
responsibility obligations, that assertion is not well-taken. The
Department expects that all representatives will comport themselves in
accordance with relevant ethics and professional responsibility rules,
and nothing in the rule excuses engaging in conduct or behavior that
may constitute grounds for disciplinary sanctions. See 8 CFR
1003.101(a).
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\36\ Conduct in violation of 8 CFR 1003.102(u) may implicate
other disciplinary grounds as well. For example, 8 CFR
1003.102(j)(1) prohibits engaging in frivolous behavior, which
includes a practitioner who ``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 cause
unnecessary delay.'' Further, 8 CFR 1003.102(o) states that a
practitioner may be subject to disciplinary sanctions if he or she
``[f]ails to provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness,
and preparation reasonably necessary for the representation.
Competent handling of a particular matter includes inquiry into and
analysis of the factual and legal elements of the problem, and use
of methods and procedures meeting the standards of competent
practitioners.''
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Comment: Commenters explained that the vague ``good cause''
standard for extension requests was prone to inconsistent application
that would lead to confusion and an increased number of appeals.
Commenters stated this result conflicts with the rule's purported
efficiency justifications.
Response: The Department appreciates commenters' concerns about the
ambiguity of a ``good cause'' standard and the possibility of
inconsistent application. For those reasons, among others, the
Department recently proposed regulatory clarifications of the
definition of ``good cause'' in the context of continuance requests in
immigration proceedings. See Good Cause for a Continuance in
Immigration Proceedings, 85 FR 75925 (Nov. 27, 2020). Although that
rulemaking is not final, the Department expects that when it is
finalized, it will provide helpful guidance to adjudicators considering
questions of ``good cause'' across different situations. Until guidance
in that rule is finalized, however, immigration judges will continue to
adjudicate requests alleging ``good cause''--including extension
requests, which are tantamount to requests for a continuance--as they
currently do so.\37\
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\37\ The phrase ``good cause'' currently appears in at least 26
places in the Department's regulations in 8 CFR chapter V. See,
e.g., 8 CFR 1003.20(b), 1003.29, 1240.6. As noted, the Department
acknowledges that ``good cause'' is not currently defined in the
regulations and, thus, may be subject to inconsistent application.
Nevertheless, the Department did not propose defining ``good cause''
in the NPRM for this final rule because continuance requests are not
limited solely to cases involving asylum applications and, thus, a
separate rulemaking on the subject applicable to all cases was more
appropriate. See 85 FR at 75926-28 (discussing the application of
the ``good cause'' standard in multiple contexts, including those
unrelated to an asylum application). Accordingly, the Department
does not believe that interjecting a new definition in the final
rule would be appropriate, particularly because commenters did not
supply a workable suggestion for such a definition. Nevertheless,
the Department will consider commenters' concerns about the
ambiguity of the ``good cause'' standard and the possibility of
inconsistent application when it finalizes the separate rule on
``good cause.''
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To the extent that commenters believe an increased number of
appeals will result from the rule, such a concern is speculative,
ignores the inherently fact-specific and case-by-case nature of asylum
adjudications, and tacitly suggests that most asylum claims are
unmeritorious necessitating the need for an appeal. Commenters did not
support this assertion regarding appeals, and the Department declines
to endorse the speculative and unfounded bases for it.
vi. Deadline Deprives Aliens of Right to Counsel \38\
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\38\ This section focuses specifically on representation by
attorneys because commenters' concerns focused specifically on
attorneys. However, the Department notes that aliens may also be
represented by a wide range of representatives beyond traditional
attorneys. See generally 8 CFR 1292.1 (providing who may represent
aliens in proceedings before EOIR).
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Comment: Commenters alleged that the 15-day deadline, including the
extension for good cause, violates an alien's right to counsel at no
expense to the government.\39\ Commenters alleged
[[Page 81723]]
that the deadline restricts aliens' access to meaningful representation
because 15 days is too short to hire counsel and for such counsel to
prepare the application.
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\39\ In removal proceedings before an immigration judge or the
Board aliens ``have the privilege of being represented (at no
expense to the Government) by such counsel, authorized to practice
in such proceedings, as he shall choose.'' INA 292, 8 U.S.C. 1362;
see also INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A). Although the
proceedings subject to the rule under 8 CFR 1208.2(c)(1) are not
removal proceedings, they are generally governed by the same
procedural rules as removal proceedings set forth in 8 CFR part
1240, subpart A. 8 CFR 1208.2(c)(3)(i). Thus, they incorporate by
reference an alien's privilege of being represented at a hearing
conducted under 8 CFR 1208.2(c). See 8 CFR 1240.3 (``The respondent
may be represented at the hearing by an attorney or other
representative qualified under 8 CFR part 1292.'').
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Commenters referenced case law that held that denial of a
continuance to seek counsel deprives aliens of their rights--Chlomos v.
INS, 516 F.2d 310, 313-14 (3d Cir. 1975) and Njoroge v. Holder, 753
F.3d 809, 812 (8th Cir. 2014). Commenters stated that those cases are
analogous to the 15-day deadline's deprivation of an alien's right to
counsel.
Relatedly, commenters alleged that the 15-day deadline would
undermine the practice of informing aliens of pro bono services at
their master calendar hearings, pursuant to 8 CFR 1240.10(a)(2) and
(3), thus defeating the purpose of pro bono organizations' inclusion in
the ``List of Pro Bono Legal Service Providers.''
Response: As discussed both above and below in more detail, the
rule does not affect an alien's authority or ability to obtain counsel
at no expense to the government in proceedings subject to the rule.
Accordingly, the Department reiterates its response to similar comments
elsewhere in the rule and adds the following further response.
The rule does not limit an alien to 15 days to find counsel. The
15-day deadline applies to the time in which an alien must file an
application, absent an extension for good cause, and begins from the
date of the first hearing before the immigration judge. The deadline
does not establish a time period in which an alien must secure
representation, and an alien may secure representation at any time--
before, during, or after the alien files an asylum application.
In particular, nothing precludes an alien from hiring counsel
before the first hearing, and as noted above, some aliens subject to
the rule may have already been in the United States for a considerable
amount of time and, thus, have had years to procure counsel. An alien
may procure representation at multiple points between the time the
alien expresses a fear of return and the commencement of the 15-day
period, as the alien receives information that may assist in procuring
counsel multiple times before the 15-day period runs, even without an
extension of that period.
As an initial point, every alien detained by DHS, including those
subject to the rule, is ``notified that he or she may communicate with
the consular or diplomatic officers of the country of his or her
nationality in the United States.'' 8 CFR 236.1(e). Through that
communication, an alien's consulate may assist the alien with obtaining
representation, including an ``accredited official'' of the alien's
country of nationality. See 8 CFR 1292.1(a)(5) (authorizing an
accredited official, defined as ``[a]n accredited official, in the
United States, of the government to which an alien owes allegiance, if
the official appears solely in his official capacity and with the
alien's consent,'' to represent an alien in immigration court
proceedings).
Although aliens alleging persecution by the government of their
country of nationality may not be expected to utilize that same
government to obtain representation, other mechanisms also exist to
assist aliens with understanding their situation and obtaining
representation. For example, DHS detention standards authorize the
presentation of information to detained aliens regarding U.S.
immigration law and procedures and their rights and options within the
U.S. immigration system. See, e.g., Standard 6.4(I), National Detention
Standards (rev. 2019), https://www.ice.gov/doclib/detention-standards/2019/6_4.pdf (``Facilities shall permit authorized persons to make
presentations to groups of detainees for the purpose of informing them
of U.S. immigration law and procedures, consistent with the security
and orderly operation of each facility. ICE/ERO encourages such
presentations, which instruct detainees about the immigration system
and their rights and options within it.''). Additionally, DHS detention
centers typically provide detainees with EOIR's list of pro bono
representatives and also provide links to that list publicly. See,
e.g., Laredo Detention Center, Legal & Case Information, Nationwide pro
bono representatives listing, https://www.ice.gov/detention-facility/laredo-detention-center. Thus, aliens may be informed of options and
the availability of representation while in DHS custody.
Additionally, for aliens subject to credible fear procedures,
following an alien's indication to apply for asylum, expression of fear
of persecution or torture, or expression of fear of return to his or
her country, the referring officer provides a written disclosure on
Form M-444 that describes the alien's ``right to consult with other
persons prior to the interview and any review thereof at no expense to
the United States Government.'' 8 CFR 235.3(b)(4)(i)(B),
1235.3(b)(4)(i)(B). Next, prior to the credible fear interview, the
alien is ``given time to contact and consult with any person or persons
of his or her choosing.'' 8 CFR 235.3(b)(4)(ii), 1235.3(b)(4)(ii). Once
the asylum officer determines that an alien has a credible fear, the
alien is provided Form I-863, Notice of Referral to Immigration Judge,
see 8 CFR 235.6(a)(2), 1235.6(a)(2), which includes an advisal
regarding the alien's right to representation at no expense to the
government and an attached copy of EOIR's pro bono list. Cf. INA
239(a)(1)(E), 8 U.S.C. 1229(a)(1)(E) (requiring the provision of a list
of available pro bono representatives at the time a notice to appear is
issued). Moreover, for all cases subject to the rule, DHS provides a
copy of the pro bono list as part of the notice to the alien when it
issues the Form I-863.
Finally, at the first hearing, the immigration judge also (1)
advises the alien that he or she may apply for asylum in the United
States or withholding of removal to those countries; (2) makes
available the appropriate application forms; (3) advises the alien of
the privilege of being represented by counsel at no expense to the
government and of the consequences, pursuant to section 208(d)(6) of
the Act, of knowingly filing a frivolous application for asylum; and
(4) provides to the alien a list of persons who have indicated their
availability to represent aliens in asylum proceedings on a pro bono
basis. 8 CFR 1240.11(c)(1)(i)-(iii). These procedures are enshrined in
current regulations and are not altered by the rule. In other words,
existing regulations already suggest that an immigration judge will
provide an alien with an asylum application and the pro bono list at
the same hearing and, presumably, will also set a deadline for the
filing of the application provided. Commenters did not address this
existing procedure, did not appear to recognize that the rule does not
alter it, except to provide a clear filing deadline subject to an
extension, and did not explain why this existing procedure is
problematic.\40\
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\40\ Most, if not all, commenters also failed to acknowledge
that the INA provides only a minimum 10-day window for an alien to
obtain representation before an alien's first hearing in removal
proceedings, INA 239(b)(1), (3), 8 U.S.C. 1229(b)(1), (3), and by
practice EOIR extends that period to asylum-and-withholding-only
proceedings. Thus, an alien will have the statutorily-required
minimum amount of time to obtain counsel, and the rule does not
alter that procedure.
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[[Page 81724]]
Given the multiple points at which aliens are advised of the
availability of consultation or representation prior to the completion
of the 15-day deadline and the availability of an extension of that
deadline for good cause, the Department rejects commenters' assertions
that the rule inhibits or eliminates an alien's meaningful opportunity
to obtain representation.\41\ Moreover, as noted elsewhere, in
practice, aliens have far more time than 15 days to obtain
representation. Similarly, the rule does not deprive counsel of time to
prepare an alien's claim. Because the government is not required to
provide aliens with representation, the alien is responsible for
securing or consulting with counsel, and the time afforded counsel is
often a function of how diligent an alien is in seeking representation.
See INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); Cf. Hidalgo-Disla v.
INS, 52 F.3d 444 (2d Cir. 1995) (finding an immigration judge's
decision to proceed with a hearing after providing an alien 26 days to
seek counsel was not erroneous and dismissing as frivolous an appeal
asserting that it was); Ghajar v. INS, 652 F.2d 1347, 1348-49 (9th Cir.
1981) (``Ghajar's assertion that she was denied due process because she
was not granted a second continuance to allow her attorney further time
to prepare for the deportation hearing is without merit . . . . One
full month elapsed between the date of the show cause order and the
date on which the hearing ultimately took place . . . . The immigration
judge did not abuse his discretion in refusing to grant a second
continuance.''). Further, a representative may seek an extension of the
deadline to file an application and may seek a continuance of any
scheduled hearing. Thus, the rule's 15-day deadline itself does not
deprive counsel of adequate time to prepare the application.
---------------------------------------------------------------------------
\41\ Despite the availability of the option for representation
at no expense to the government in proceedings subject to this rule,
8 CFR 1240.3, and the fact that the overwhelming majority of aliens
seeking asylum obtain representation, the Department recognizes that
a certain small percentage of aliens do not obtain representation.
The Department understands that some aliens do not secure
representation because they do not wish to pay the fee charged by a
potential representative. The Department also understands that many
representatives, due to ethical or professional responsibility
obligations, will not take cases of aliens who are ineligible or
present weak claims for relief or protection from removal because
they do not wish to charge money for representation when
representation is unlikely to affect the outcome of the proceeding.
These situations illustrate only that some aliens may not ultimately
secure representation for reasons common to issues of representation
in all civil cases--i.e., the cost of the representation and the
strength of the case--not that aliens are limited or prohibited from
obtaining representation by this or any other Department regulation.
See United States v. Torres-Sanchez, 68 F.3d 227, 231 (8th Cir.
1995) (``Although Torres-Sanchez expressed some frustration over his
attempt to obtain counsel, that frustration, in our view of the
record, stemmed from his realization that he faced the inevitable
consequence of deportation, not from a lack of opportunity to retain
counsel. In any event, the mere inability to obtain counsel does not
constitute a violation of due process.''). As the Department is not
involved in discussions between respondents and potential
representatives, it cannot definitively state every reason that an
alien who seeks representation may not obtain it. Nevertheless, it
can state that this rule does not limit or restrict any alien's
ability to obtain representation in immigration proceedings.
---------------------------------------------------------------------------
To reiterate, the deadline does not affect an immigration judge's
ability to grant a continuance for good cause, see 8 CFR 1003.39,
including one to find counsel.\42\ The 15-day deadline applies to the
time period in which an alien must file an application, absent an
extension for good cause; it does not establish a time period in which
an alien must secure counsel and thus does not interfere with an
immigration judge's discretion to grant a continuance in that regard.
For these reasons, the deadline does not deprive an alien of the
opportunity to obtain counsel of his her choosing at no expense to the
government.
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\42\ The Department recognizes that aliens should receive a fair
opportunity to secure counsel. Matter of C-B-, 25 I&N Dec. 888 (BIA
2015). The Board has not specifically defined what a reasonable
amount of time is for purposes of obtaining representation, and the
respondent in Matter of C-B- was given only eight days between the
issuance of an NTA and his first hearing, in apparent contravention
of INA 239(b)(1), 8 U.S.C. 1229(b)(1). See id. at 889. Nevertheless,
Matter of C-B- cannot be interpreted to contradict the INA, and the
INA clearly indicates that 10 days between the service of a notice
to appear and the first hearing is a sufficient amount of time to
obtain representation. See INA 239(b)(3), 8 U.S.C. 1229(b)(3).
Accordingly, this rule is not in tension with Matter of C-B- and
does not deviate from recognizing the statutory parameters for
providing time for an alien to obtain representation.
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Likewise, the deadline does not affect the requirement that an
immigration judge advise the alien of (1) the right to representation
at no expense to the government, and (2) the availability of pro bono
legal services and whether the alien received a list of such pro bono
legal service provider, see 8 CFR 1240.10(a)(1) and (2), at the first
hearing, nor does it affect the requirement of the immigration judge to
provide certain advisals to aliens with an intent to apply for asylum,
including the provision of an asylum application and a copy of the pro
bono list, 8 CFR 1240.11(c)(1). In fact, the rule makes it explicit
that immigration judges must follow those procedures in proceedings
conducted under 8 CFR 1208.2(c)(1) and (2). 8 CFR 1208.4(d).
vii. Deadline Is Biased in Favor of the Government
Comment: Commenters explained that, under recently enacted rules,
the government could ``file evidence without it being contested,''
thereby increasing bias toward the government in these proceedings.
Response: In response to commenters' specific concerns with
evidence filed by the government, that concern relates to a separate
rulemaking and is thus outside the scope of this final rule.
In regard to a general concern of bias towards the government,
which the Department understands comments to have implicitly
referenced, the Department disagrees that the deadline disfavors aliens
or shows bias in favor of the government. The deadline is intended to
effectuate efficient processing, consistent with the regulatory
directive that applications of detained aliens be given ``expedited
consideration'' where possible, 8 CFR 1208.5(a), and is fully
consistent with longstanding authority to set deadlines in immigration
proceedings, 8 CFR 1003.31(c). Efficient processing benefits both the
government and aliens, especially aliens who have meritorious
claims.\43\ Given the pending caseload and the recent uptick in
proceedings initiated by DHS,\44\ the government has an interest in
timely adjudications, consistent with applicable law and regulations,
so that it may continue to accomplish its mission of fairly,
expeditiously, and uniformly interpreting and administering the
nation's immigration laws. Likewise, detained aliens should want their
claims considered in a timely fashion in order to receive relief or
protection and subsequent release from detention as quickly as
possible.
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\43\ To the extent commenters suggest that the rule
disadvantages aliens without meritorious claims by making it more
difficult for such aliens to delay their removal from the United
States, the Department finds such a suggestion unavailing. Overall,
the Department finds any rationale for encouraging or supporting the
dilatory adjudication of cases, especially cases lacking merit, both
inherently unpersuasive and wholly outweighed by the importance of
timeliness and fairness--especially to detained aliens with
meritorious claims--in adjudicating asylum applications.
\44\ See EOIR, Adjudication Statistics: New Cases and Total
Completions--Historical (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1139176/download; see also EOIR, Adjudication
Statistics: Pending Cases, New Cases, and Total Completions (Oct.
13, 2020), https://www.justice.gov/eoir/page/file/1242166/download.
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Finally, as discussed supra, the Department rejects any insinuation
that its adjudicators are biased or that it is
[[Page 81725]]
engaging in this rulemaking for biased reasons against either party in
immigration proceedings. Generalized, ad hominem allegations of bias or
impropriety are insufficient to ``overcome a presumption of honesty and
integrity in those serving as adjudicators.'' Withrow, 421 U.S. at 47.
Accordingly, the Department declines to accept commenters' unfounded
suggestions of bias. Chem. Found., Inc., 272 U.S. at 14-15 (``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.'').
viii. Conflicts With the INA
Comment: Commenters argued that the 15-day filing deadline
conflicts with the INA for multiple reasons. For example, many
commenters argued that the 15-day filing deadline conflicts with the
statutory one-year bar for asylum applications. INA 208(a)(2)(B), 8
U.S.C. 1158(a)(2)(B). Commenters further argued that applying the 15-
day filing deadline to aliens' applications for withholding of removal
and protection under the CAT conflicts with the Act because Congress
did not include any similar filing deadline requirement for those
applications. See generally INA 241(b)(3), 8 U.S.C. 1231(b)(3).
Response: As an initial point, most, if not all, commenters on this
issue failed to recognize or address (1) the existence of the 10-day
filing deadline in 8 CFR 1208.5(b) with no noted challenges to its
alleged inconsistency with the INA; (2) the longstanding ability of
Department adjudicators, under 8 CFR 1003.31(c) and Matter of R-R-, 20
I&N Dec. 547, 549 (BIA 1992) (``The Board has long held that
applications for benefits under the Act are properly denied as
abandoned when the alien fails to timely file them.''), to set filing
deadlines, including for asylum applications within one year of an
alien's arrival in the United States; (3) the affirmation of the
enforcement of such deadlines by the Board and by Federal courts,
including for deadlines set well within one year of arrival, see, e.g.,
Matter of R-C-R-, 28 I&N Dec. 74, 75-77 (BIA 2020) (affirming a
decision finding an alien's opportunity to file for asylum abandoned
for an alien who entered the United States on March 13, 2019, and
failed to file an asylum application by the deadline set by the
immigration judge of December 6, 2019); Jie Zhu v. U.S. Att'y Gen., 648
F. App'x 957, 960-62 (11th Cir. 2016) (affirming a decision finding an
alien's opportunity to file for asylum abandoned for an alien who
entered the United States on June 8, 2014, and failed to file an asylum
application by the deadline set by the immigration judge of September
3, 2014); Rageevan v. U.S. Att'y Gen., 151 F. App'x 751, 753-56 (11th
Cir. 2005) (affirming a decision finding an alien's opportunity to file
for asylum abandoned for an alien who arrived in the United States on
January 18, 2004, and failed to file a complete asylum application by
the deadline set by the immigration judge of May 7, 2004); cf.
Alsamhouri v. Gonzales, 484 F.3d 117, 123 (1st Cir. 2007) (``The IJ was
then well within his discretion to find that, as against [the alien's]
disregard of a known deadline, the government's strong interest in the
orderly and expeditious management of immigration cases justified the
denial of a continuance.''); (4) Federal case law holding that a filing
deadline can be applied to an application for withholding of removal
under the INA and for protection under the CAT, see, e.g., Taggar v.
Holder, 736 F.3d 886, 889-90 (9th Cir. 2013) (``Taggar separately
argues that no deadline can lawfully be imposed on applications for
relief under the Convention Against Torture. This is incorrect.'');
Lakhavani v. Mukasey, 255 F. App'x 819, 822-23 (5th Cir. 2007) (``Other
circuits have held that petitioners can waive CAT or asylum claims by
failing to raise them at the time designated by the IJ under 8 CFR
1003.31. The IJ gave Lakhavani the opportunity to file an application
for withholding at his April 2002 hearing, and he failed to do so. The
BIA correctly affirmed the IJ's decision denying Lakhavani leave to
file an untimely application for withholding of removal.'' (internal
citations omitted)); cf. Foroglou v. Reno, 241 F.3d 111, 113 (1st Cir.
2001) (``On review, Foroglou's main argument is that the Board's time
limit on petitions to reopen is itself invalid because it would result
in denying relief to deportees who might then suffer torture, contrary
to the [CAT] and to the policies embodied in federal legislation and
regulations that implement the [CAT] or otherwise protect the rights of
aliens. The short answer to this argument is that Foroglou points to
nothing in the [CAT] or legislation that precludes the United States
from setting reasonable time limits on the assertion of claims under
the [CAT] in connection with an ongoing proceeding or an already
effective order of deportation. Even in criminal cases, constitutional
and other rights must be asserted in a timely fashion.''); and, (5) the
logical and legal ramifications of the position that an immigration
judge must wait in every case of an alien who has been in the United
States less than one year--and regardless of whether the alien is
detained--until one year has elapsed from the time of an alien's
arrival in the United States before proceeding with the case to ensure
that an alien is provided one year in which to file for asylum. To the
extent that commenters' concerns on this point failed to address
relevant law or to engage with the implications of their position,
especially for detained aliens, the Department finds them unavailing.
Under what is commonly referred to as the ``one-year bar,'' an
alien seeking asylum must generally file his or her application within
one year of arrival in the United States. INA 208(a)(2)(B), 8 U.S.C.
1158(a)(2)(B) (providing that an alien may not apply for asylum
``unless the alien demonstrates by clear and convincing evidence that
the application has been filed within 1 year after the date of the
alien's arrival in the United States''); see also 8 CFR 1208.4(a)(2).
An alien may be excepted from the one-year requirement due to ``changed
circumstances [that] materially affect the applicant's eligibility for
asylum or extraordinary circumstances related to the delay in filing an
application within'' the one-year period. INA 208(a)(2)(D), 8 U.S.C
1158(a)(2)(D); see also 8 CFR 1208.4(a)(4) and (5).
The ability of immigration judges to set and enforce filing
deadlines for applications does not conflict with the statutory one-
year bar. Immigration judges have long maintained the authority to set
and enforce time limits on the filing of applications for asylum and
withholding of removal in the proceedings before them. See Matter of
Jean, 17 I&N Dec. 100, 102 (BIA 1979) (explaining that ``it is well
within the authority of the immigration judge . . . to set reasonable
time limits for the filing of written applications for asylum'')
Similarly, immigration judges have long maintain the authority to set
and enforce time limits on the filing of applications for protection
under the CAT. Taggar, 736 F.3d 890 (holding that immigration judges
can set and enforce deadlines for the filing of CAT applications). This
authority reflects ``the government's strong interest in the orderly
and expeditious management of immigration cases.'' Gomez-Medina v.
Holder, 687 F.3d 33, 37 (1st Cir. 2012). Although Congress enacted a
maximum outer limit of one year from arrival for aliens to apply for
asylum in INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B),
[[Page 81726]]
nothing in that provision \45\ or the INA precludes immigration judges
from setting a specific deadline for the filing of an asylum
application in immigration proceedings in order to promote the
``orderly and expeditious management of immigration cases.'' Gomez-
Medina, 687 F.3d at 37.
---------------------------------------------------------------------------
\45\ Congress enacted the one-year bar in INA 208(a)(2)(B), 8
U.S.C. 1158(a)(2)(B) against the backdrop of longstanding Department
regulations and practice finding asylum applications to be abandoned
if they were not filed by a deadline specified by an immigration
judge, e.g., Matter of R-R-, 20 I&N Dec. at 549 (``The Board has
long held that applications for benefits under the Act are properly
denied as abandoned when the alien fails to timely file them.''),
and it could have easily phrased it in the affirmative to state that
an alien shall be afforded one year from the date of arrival in
order to apply for asylum, rather than by framing it in the negative
as an outer deadline, INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B)
(``paragraph (1) shall not apply to an alien unless the alien
demonstrates by clear and convincing evidence that the application
has been filed within 1 year after the date of the alien's arrival
in the United States''). In other words, the statutory phrasing
indicates that an alien has, at most, one year after arrival to
apply for asylum--not at least one year, as urged by commenters.
Moreover, Congress's phrasing against the backdrop of longstanding
agency practice is additional evidence that the language in in INA
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) was not intended to displace
the Department's ability to set filing deadlines in immigration
proceedings for asylum applications. Cf. NLRB v. Bell Aerospace Co.
Div. of Textron, Inc., 416 U.S. 267, 275 (1974) (``[C]ongressional
failure to revise or repeal the agency's interpretation is
persuasive evidence that the interpretation is the one intended by
Congress''). Indeed, as discussed, infra, if commenters were
correct, then the Department's practice of setting filing deadlines
prior to the enactment of INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B)
was arguably inappropriate because the INA provided no deadline for
an alien to apply for asylum and, thus--according to the commenters'
logic--immigration judges could never have set a deadline consistent
with the statute. However, there is no evidence, either before or
after the enactment of INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) that
Congress intended to displace an immigration judge's authority to
set filing deadlines in order to manage dockets efficiently.
---------------------------------------------------------------------------
Moreover, if the Department accepted commenters' logic, aliens in
removal proceedings would, for example, be able to delay their
proceedings for up to a year by simply stating that they intend to file
an asylum application by some future date. See Matter of Jean, 17 I&N
Dec. at 102 (``To allow otherwise would permit a deportable alien to
avoid the conclusion of his deportation case and thus his departure by
merely requesting the relief but not choosing to file the claims.'').
This is an erroneous reading of the statute and regulations and would
eviscerate immigration judges' ability to manage proceedings. See,
e.g., 8 CFR 1240.1(c) (providing immigration judges the ability to
``regulate the course of the hearing'').
Commenters' reading of INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B)
would also raise additional issues, including potential constitutional
issues related to prolonged detention. For example, under the
commenters' view, a detained alien, such as one covered by the rule,
could continue to delay his or her proceedings up to a year after
arrival without filing for asylum while simultaneously raising
arguments that he or she should be released from custody because the
prolonged detention has implicated constitutional rights. See, e.g.,
Velasco Lopez v. Decker, 978 F.3d 842, 852 (2d Cir. 2020) (``Detention
under [INA 236(a),] Sec. 1226(a) is frequently prolonged because it
continues until all proceedings and appeals are concluded. . . . The
longer the duration of incarceration, the greater the deprivation.'').
Nothing in INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B), however,
contemplates its use as a basis for either prolonging immigration
proceedings or as a wedge to obtain an alien's release from detention,
especially in situations where Congress has otherwise indicated that
proceedings should be expedited. Cf. Matter of L-N-Y, 27 I&N Dec. 755,
759 (BIA 2020) (``The Immigration Courts and the Board expedite the
adjudication of cases involving detained aliens, recognizing the
liberty interest of detained aliens and the interest of the Government
to reasonably limit the expense of detention.''). Additionally, if
commenters were correct that INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B)
provides an alien with an absolute right to file for asylum at any time
within one year after arrival in the United States, then, by that same
logic, the lack of a filing deadline prior to the enactment of that
provision meant that previously aliens had an absolute right to apply
for asylum at any time after arrival. However, the Department is
unaware of any court adopting such a position, nor is it aware of any
court adopting the view urged by commenters regarding the relationship
between INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) and the 15-day
deadline in the rule. In short, although the Department acknowledges
and has fully considered commenters' assertions on this point, it finds
them unavailing and unpersuasive for all of the reasons given herein.
ix. Recommendations
Comment: Many commenters provided a wide range of recommendations
to the Department.
For example, commenters suggested that if EOIR imposed this short
deadline, then government should provide aliens with attorneys and
translators to ensure that they can meet the deadline. Some commenters
acknowledged the Department's concern regarding degradation or loss of
evidence, but they suggested a deadline longer than 15 days to balance
evidence-related concerns with concerns that aliens need adequate time
to gather evidence.
Commenters suggested that the Department should include an
exception to the filing deadline for pandemic-related delays, such as
filing delays due to COVID-19.
Commenters asserted that aliens should be granted a ``per se
extension'' whenever due process rights are threatened, such as the
right to counsel, to ensure those rights are not violated. For example,
the commenters explained that an alien who seeks to retain counsel
should get an automatic extension on the 15-day deadline to find
representation who can assist with the application. The commenters
predicted that the exceptions would render the rule unworkable.
One commenter, who generally supported the Department's inclusion
of the 15-day submission deadline, recommended that the Department
provide the same 15-day deadline for aliens in ``withholding-only''
proceedings under 8 CFR 1208.2(c)(2).
Response: The Department acknowledges and appreciates the
commenters' recommendations. It has considered all of them and adopted
one as discussed below. Some recommendations are beyond the scope of
this rulemaking and potentially beyond the scope of rulemaking
altogether. For example, the Department cannot simply provide aliens a
right to counsel or to personal translators in all immigration cases by
regulation due to the significant amount of Congressional
appropriations--far in excess of EOIR's current budget--that would be
required to effectuate such a rule. Further, as such a proposal was not
part of the NPRM--and implicates a potentially massive overhaul of
immigration court procedures--it would not be appropriate to include it
in a final rule without additional comment and study.
Regarding recommendations related to exceptions to the deadline,
the Department believes that the rule's allowance of an extension of
that deadline for good cause addresses and responds to those
recommendations, as well as the continued availability of continuances
in appropriate cases, which is not affected by the rule. The Department
recognizes that no rule can cover every potential scenario,
particularly in the context of hundreds of thousands of cases with
asylum applications. Consequently, it declines to establish any per se
rules about
[[Page 81727]]
whether an extension or a continuance is warranted and expects that
immigration judges will adjudicate such requests consistent with
applicable law and mindful of an alien's detention status and the
direction in 8 CFR 1208.5(a) to adjudicate such cases expeditiously.
The Department agrees with the commenter who recommended applying
the 15-day deadline to applications for statutory withholding of
removal and protection under the CAT for aliens in proceedings under 8
CFR 1208.2(c)(2). The Department sees no reason to distinguish between
aliens subject to proceedings under 8 CFR 1208.2(c)(1) and those
subject to proceedings under 8 CFR 1208.2(c)(2), as both groups are
generally detained. Moreover, the reasons underpinning the application
deadline for 8 CFR 1208.2(c)(1)--e.g., most aliens subject to the rule
are detained, that aliens with meritorious claims have a strong
incentive to obtain relief or protection--and potentially release from
detention--as quickly as possible, that aliens who have recently
claimed a fear of persecution or torture will be well-situated to
perfect that claim quickly through the filing of an application, that
filing deadlines are a well-established part of immigration court
practice and are utilized by courts at all levels, that an even shorter
filing deadline has existed for many years for a particular class of
asylum applicants with no noted challenges or complaints, that delays
in adjudication may risk evidence degradation and may make it more
difficult to obtain pro bono representation, that the deadline is not
absolute because it may be extended in appropriate circumstances, and
that the rule does not alter longstanding rules and practices allowing
aliens to supplement an application and to seek to have an immigration
consider late-filed evidence--apply with equal force to proceedings
under 8 CFR 1208.2(c)(2). Accordingly, in response to the
recommendation of at least one commenter, the final rule adopts the
commenter's suggestion and edits the language in 8 CFR 1208.4(d)(1) to
make the 15-day deadline, with the possibility of an extension for good
cause, applicable to aliens in proceedings under 8 CFR 1208.2(c)(2)
seeking statutory withholding of removal or protection under the CAT.
b. Concerns With Changes Regarding Refiling Incomplete Applications
i. Completeness Requirement
Comment: Commenters expressed concerns about requiring the
immigration court to reject applications that are incomplete or that
have other minor mistakes without providing any exceptions. Commenters
explained that this provision would result in applications being
rejected for technicalities or due to minor instances of confusion,
citing, for example, hypotheticals of the immigration court denying the
application of an asylum seeker without a middle name or children
because the corresponding name and children boxes were purposefully
left blank.
Commenters asserted that the rule was unnecessary and complained
that the Department did not address why the change was necessary--
specifically, why applicants could no longer complete their
applications before the court during a hearing.
Commenters also stated that it will be difficult, if not
impossible, for some applicants to submit a complete application due to
a lack of command of the English language, a lack of access to
supporting evidence, and the effects of trauma. Other commenters noted
that the structure of the form itself increases this difficulty because
of the number of questions and blank boxes; the formatting of multiple
boxes or lines per questions; and a lack of clarity regarding how to
address a question that does not apply based on answering ``no'' to the
immediately preceding question. Commenters noted that their concerns
may be even greater in the future if DHS moves forward with codifying
proposed amendments to the Form I-589, Instructions, which would add to
the form's length and general complexity.
Other commenters suggested that inaccuracies and mistakes will be
inevitable for aliens subject to the filing deadline imposed by the
rule.
Numerous commenters compared the rule's requirement to what
commenters described as USCIS's policy of rejecting applications that
fail to follow form instructions, namely answering every question.
Commenters explained that the USCIS policy has led to confusion and
inconsistencies, and commenters predicted that the rule will create
similar issues before the immigration courts.
Lastly, commenters expressed concerns that the rule removes the
completeness determination from immigration judges and places it on
untrained agency staff; such a shift, commenters alleged, is
inefficient and will further strain an already overburdened system.
Response: As an initial mater, commenters misconstrue the changes
implemented by this rule or fail to acknowledge what the rule does not
actually change. For instance, it does not create a new completeness
requirement for the submission of Forms I-589. Indeed, this requirement
already exists in the relevant regulations. See 8 CFR 1208.3(c)(3)
(``An asylum application that does not include a response to each of
the questions contained in the Form I-589, is unsigned, or is
unaccompanied by the required materials specified in paragraph (a) of
this section is incomplete.''); see also Form I-589 Instructions, Pt.
1, Sec. V. (``You must provide the specific information requested about
you and your family and answer all the questions asked. If any question
does not apply to you or you do not know the information requested,
answer ``none,'' ``not applicable,'' or ``unknown.'') (emphasis in
original). This rule merely clarifies this existing standard by
including the necessity to follow the Form I-589 instructions and other
filing-related regulations.
In response to commenters who requested an explanation for why
applicants would no longer be allowed to supply missing information
during a hearing before an immigration judge, the Department notes that
such a process does not comply with these existing regulations.\46\ By
ensuring that applications are complete at filing, the parties and
court can be confident that they are proceeding with an adjudication on
the full application and, as noted in the proposed rule, that the
application is completed as timely as possible. Further, requiring a
complete application protects the alien by ensuring that there are no
incorrect assumptions regarding the facts of an alien's claim or
personal status as set out in the application.\47\ Moreover, allowing
applicants to complete applications in court is inefficient and uses
valuable court time that is better spent adjudicating issues in
dispute. See 8 CFR 1240.11(c)(3) (requiring a hearing
[[Page 81728]]
on an asylum application only when necessary ``to resolve factual
issues in dispute''). As noted in the proposed rule, however, aliens
may continue to supplement or amend a previously filed asylum
application after the application is filed, subject to an immigration
judge's discretion. See 8 CFR 1208.4(c).
---------------------------------------------------------------------------
\46\ To the extent that immigration courts may have previously
failed to follow the existing regulations, the Department reiterates
that its employees are expected to follow all applicable
regulations.
\47\ The Department further notes that the recently-finalized
joint rule, Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review, signed by the Attorney
General and the Acting Secretary of Homeland Security on December 2,
2020, codifies an immigration judge's authority to pretermit asylum
applications that fail to present a prima facie claim for relief.
See 85 FR at 36277. Even if that codification does not go into
effect, immigration judges nevertheless possess authority to
pretermit legally deficient asylum applications in certain
instances. Id. Thus, this rule would ensure that aliens are afforded
all opportunities to correct deficiencies in their applications in
order to ensure that their claim for relief is fully presented
before an immigration judge would consider any questions of
pretermission.
---------------------------------------------------------------------------
The Department also disagrees with concerns regarding agency staff
making completeness determinations rather than adjudicators and
categorically rejects the ugly, underlying insinuation that its legal
support employees are too ignorant or incompetent to determine whether
an application is complete. By requiring all questions to be answered,
there is no room for discretion as to what responses are necessary;
thus, all applicants are subject to the same requirements. Similarly,
commenters did not explain why the acceptance of an incomplete
application would be either desirable or efficient, and the Department
is aware of no bases for doing so. The completeness requirement
provides a clear, logical, and straightforward guidepost and one that
most individuals understand. Moreover, a completeness requirement has
existed in the regulations for many years with no noted difficulties;
to the contrary, asylum applications have risen significantly in recent
years, even with the requirement that the application be complete. See,
e.g., EOIR, Adjudication Statistics: Total Asylum Applications (Oct.
13, 2020), https://www.justice.gov/eoir/page/file/1106366/download.
Immigration court staff receive training on reviewing filings for
sufficiency and regularly reject deficient filings as part of their
duties.
Regarding commenters' concerns about the grammatical structure of
the Form I-589's questions, the amount of questions, or the English
language requirement, the Department notes that this rule does not make
any changes to the Form I-589 itself. Further, to the extent that
commenters' suggest that the Department should amend the Form I-589 to
address such concerns, the Department notes that although the Form I-
589 is a shared form between EOIR and DHS, it is managed and updated by
DHS. Accordingly, altering the form is beyond the scope of this
rulemaking and the Department's authority, and commenters' concerns
about the form itself are most appropriately directed to DHS.
Similarly, commenters' concerns about USCIS are beyond the scope of
this rulemaking, as USCIS is a separate agency beyond the purview of
the Department. Further, the Department reiterates that the
completeness requirement is not novel; rather, it has been an existing
requirement for many years, and the Department is unaware of any
issues, challenges, or complaints regarding it previously. Thus,
commenters' suggestion that an existing regulation will lead to future
confusion at EOIR is purely speculative and unpersuasive.
Regarding concerns about applicants' past trauma and limited access
to evidence, and its effect on applicants' ability to complete their
applications, the Department reiterates that the completeness
requirement has existed for many years and that allegations of trauma
or access to evidence have not previously been alleged to be such a
pervasive or systemic issue as to warrant an exception to the general
rule that applications should be filled out completely. The Department
certainly recognizes the potential existence of trauma for aliens with
meritorious claims and associated difficulties, but this rule, overall,
helps ensure that such aliens receive expeditious consideration of
their claims and favorable adjudications so that they can obtain the
relief they deserve without any undue delay. Moreover, at a minimum,
every applicant must present his or her case for adjudication, which
requires filing an application in accordance with the regulations and
form instructions. This includes responding to every question on the
Form I-589 and submitting any supporting evidence.
The Department rejects the notion that the completeness requirement
is unnecessarily complicated or confusing, and it is unaware of any
situation--and commenters did not provide one--in which an incomplete
application is deemed acceptable or even desirable. Rather, the
Department believes that incomplete applications may cause confusion
and that such confusion will be eliminated by requiring applications to
be fully completed before they are filed and accepted for adjudication.
The Department believes requiring completion of the Form I-589 will
avoid potentially differing interpretations from immigration staff as
to what is ``complete'' and will prevent the possibility of uneven
filing acceptance practices at the immigration courts. In addition, by
following this requirement, applicants can ensure that they did not
inadvertently fail to complete any fields and can be confident that the
immigration judge is adjudicating a complete asylum application.
Lastly, commenters' assertions that incomplete applications will be
rejected and result in a denial of relief are incorrect. The return of
an incomplete application is not an adjudication on the merits and does
not automatically result in an immediate ``denial'' of relief. Rather,
incomplete applications will be returned to the applicants, who will
have 30 days to complete and return the application. This is discussed
in more detail in section II.C.4.b.iii.
ii. Removal of Deadline for Immigration Court
Comment: Many commenters objected to the proposed amendment at 8
CFR 1208.3(c)(3) that an alien's incomplete asylum application would
not be deemed complete if the immigration court failed to return the
incomplete application within 30 days. Instead, the immigration courts
would continue to reject incomplete applications in a ``timely'' manner
but without a maximum allowable period of time.
Commenters objected that the rule would give the immigration courts
an indeterminate amount of time to reject asylum applications for
incompleteness. Commenters raised concerns that the lack of a deadline
would make proceedings less predictable and make it more difficult for
asylum seekers to appropriately budget their savings before being able
to possibly obtain work authorization.
Other commenters argued that the removal of the deadline for the
immigration courts is contrary to the Department's justifications
elsewhere in the rule to ensure that proceedings occur in a timely and
predictable manner and noted that shortening the 30-day time period for
the rejection of applications, rather than removing the deadline
altogether, would instead be more efficient. Other commenters argued
that the Department did not sufficiently justify this provision in
general.
Further, commenters stated that the rule's requirement that
immigration courts return incomplete asylum applications to applicants
in a ``timely fashion'' to be vague and arbitrary and argued that the
Department should provide some sort of definition or specific standard.
At least one commenter expressed concern that the standard is vague
enough to allow gamesmanship, citing a hypothetical where the
immigration judge waits to reject an application as incomplete until
just after the alien's one-year filing deadline expires.
Moreover, commenters expressed general disbelief that the courts
would return incomplete applications or alert aliens of deficient
applications in a timely manner, noting, for example, general
processing delays by USCIS or other agencies.
Commenters also thought it was generally unfair that asylum seekers
[[Page 81729]]
would be held to time restrictions, such as a 30-day correction
deadline, while immigration courts are not held to a similar standard.
Response: As an initial point, the Department categorically rejects
the suggestion of at least one commenter that an immigration judge
would engage in gamesmanship by purposefully delaying the rejection of
an application solely to be able to deny it.\48\ As discussed, supra,
commenters' attacks on the integrity of immigration judges are
unfounded and have no place in this rulemaking.
---------------------------------------------------------------------------
\48\ The Department notes, parenthetically, that the commenter's
hypothetical is also legally inaccurate. An alien whose asylum
application is filed before the one-year deadline but is rejected as
incomplete may be able to demonstrate extraordinary circumstances
excusing the application of the deadline provided that the alien
refiles the application within a ``reasonable period thereafter,''
which the 30 days allowed for by this rule would certainly be. 8 CFR
1208.4(a)(5)(v). Thus, the commenter's hypothetical, even if it were
realistic, would not result in the denial of the alien's application
as untimely.
---------------------------------------------------------------------------
Further, comments about USCIS are beyond the scope of this
rulemaking, as USCIS is a separate agency beyond the purview of the
Department. USCIS is part of DHS, while EOIR is part of the Department.
See Department of Homeland Security, Operational and Support Components
(Nov. 17, 2018), https://www.dhs.gov/operational-and-support-components. To the extent that commenters have concerns about
procedures utilized by USCIS, those concerns are most appropriately
directed to DHS.
As discussed above in section II.C.4.b.i, all asylum applications
must be submitted ``in accordance with the instructions on the form.''
8 CFR 1208.3(a). The instructions, in turn, inform applicants that they
``must provide the specific information requested about [their] family
and answer all the questions asked.'' See Form I-589, Application for
Asylum and for Withholding of Removal, Instructions, 5 (Aug. 25, 2020),
https://www.uscis.gov/sites/default/files/document/forms/i-589instr.pdf
(emphasis in original). Further, ``[a]n asylum application that does
not include a response to each of the questions contained in the Form
I-589, is unsigned, or is unaccompanied by the required materials
specified in [8 CFR 1208.3(a)] is incomplete.'' 8 CFR 1208.3(c)(3).
Accordingly, the Department disagrees with commenters' general concerns
that the Department should not remove the 30-day deadline for the
immigration court to return an incomplete application or else have the
application deemed complete. Without this change, the provision at 8
CFR 1208.3(c)(3) is inconsistent with the overarching requirement that
aliens must submit the asylum application in accordance with the
instructions on the form--in other words, completely filled out.
Additionally, the Department finds that the removal of the 30-day
return period will better ensure that all asylum claims before the
immigration courts for adjudication are fully presented for
adjudication and review. Incorrectly deeming an incomplete application
complete does not ensure that the alien is able to fully pursue his or
her claim as the missing information may in fact be integral to the
alien's claim for relief, and the Department does not want to risk
having an immigration judge consider an incomplete application without
the relevant information.\49\ For this reason, the Department further
rejects commenters' alternative suggestions that the Department should
instead shorten the 30-day time period as an alternative way to
increase efficiencies.
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\49\ Again, the Department reiterates that, as noted in footnote
47 above, this provision would further benefit aliens who may wish
to prevent an immigration judge from considering whether to
pretermit an incomplete application.
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In general, commenters failed to explain why the default in the
existing regulation--i.e., an immigration court accepts an incomplete
application--based on a legal fiction that an incomplete application is
deemed complete if the immigration court fails to return the
application as incomplete provides any benefit to the alien, DHS, or
the immigration courts. To the contrary, an application that is
incomplete in fact--regardless of whether it is ``deemed'' complete by
regulation--benefits neither the parties nor the immigration judge. It
risks creating credibility issues for the respondent based on the parts
that are incomplete even if those parts do not go to the merits of the
claim. INA 208(b)(1)(B)(iii), 8 U.S.C. 1158(b)(1)(B)(iii)
(inconsistencies may form the basis of an adverse credibility
determination without regard as to whether they go to the heart of an
alien's claim). It inhibits the ability of the opposing party--and
potentially the immigration judge--to prepare for a hearing on that
application and risks springing surprises on the opposing party at the
hearing that may require a postponement to investigate further. It
further increases inefficiency in the overall proceeding, particularly
at the merits hearing where the parties and the immigration judge may
have to go over each incomplete part first to determine its bearing on
the case before being able to proceed to the merits of the case. In
short, commenters did not identify any reasonable benefit provided by
filing and accepting an incomplete application and the Department is
unaware of any; moreover, the costs associated with such an application
in terms of the risk of an adverse credibility finding, unfair surprise
to the opposing party, and overall inefficiency in adjudicating the
case all strongly militate in favor of the Department's decision to
replace the current regulatory language with that contained in this
rule.
In addition, commenters are incorrect regarding the effect this
provision would have on the calculation of aliens' possible eligibility
for employment authorization.\50\ To reiterate, existing regulations
already provide that the filing of an incomplete application does not
begin the timeframe by which DHS adjudicates an application for
employment authorization based on an asylum application, and nothing in
this rule alters that longstanding principle. Accordingly, the
Department disagrees that an alien who submits a Form I-589 that is
incomplete would begin to accrue time towards his or her employment
authorization eligibility. In short, aliens seeking employment
authorization have an incentive to submit a complete asylum application
as soon as possible, and nothing in this rule either affects that
incentive or changes the Department's position that the submission of
an incomplete application does not begin the timeframe to adjudicate an
employment authorization application.
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\50\ As a general matter, the Department emphasizes that
questions of employment authorization eligibility are adjudicated by
DHS and not by the Department. Indeed, that is why this rule removes
regulatory provisions from chapter V of 8 CFR pertaining to alien
employment authorization. Nevertheless, the Department addresses
commenters' concerns to the extent they are directly related to the
provisions of this rule.
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Commenters are incorrect that EOIR will be unable to return
incomplete asylum applications in a timely manner following the removal
of the 30-day period. To the contrary, as discussed throughout this
rule, EOIR has a powerful incentive to ensure that proceedings are
conducted in as expeditious manner as possible consistent with due
process. The rule's ``timely fashion'' requirement obligates
immigration courts to act promptly in returning incomplete asylum
applications, and the insulting suggestion that EOIR's employees lack
the competence or diligence to effectuate that requirement is
[[Page 81730]]
unsupported. Immigration court staff receive training on how to process
filings, and defective filings are already subject to review and
return, as appropriate.
Finally, the Department believes that commenters are incorrect in
asserting that the rule is unfair because asylum seekers are being held
to time restrictions, while immigration courts are not. As discussed,
supra, the Department has powerful incentives to promptly return
incomplete asylum applications to ensure efficiency, especially as the
number of asylum applications file has risen astronomically in recent
years. EOIR, Workload and Adjudication Statistics, Total Asylum
Applications (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1106366/download. Moreover, the Department is held to a 180-day
adjudication deadline for asylum applications absent exceptional
circumstances, INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii), and
that deadline is only triggered once an alien files a complete asylum
application. Thus, there is no asymmetry between asylum seekers and the
immigration courts; rather, both are held to intertwined and mutually-
reinforcing deadlines regarding asylum applications.
iii. 30-Day Correction Deadline
Comment: Commenters expressed concern about the rule's requirement
that aliens only be allowed a 30-day period to re-file an application
that is rejected for being incomplete. According to commenters, the
imposition of a 30-day time period is arbitrary and too limited for
aliens to correct any errors with the application or gather missing
evidence. Commenters asserted that by establishing such a timeframe,
the Department is inappropriately prioritizing efficiency over all
other concerns.
Some commenters requested that the deadline, if any, be extended to
45 days rather than 30 days.
Commenters also worried the 30-day correction deadline will lead to
unnecessary and inadvertent waivers of aliens' right to seek asylum.
For example, some commenters stated that a failure by a mail carrier
could result in the foreclosing of relief. Other commenters expressed
general disbelief that the government will timely return or alert
aliens of deficient applications.
Some commenters asserted that the rule was both redundant and
unduly restrictive because immigration judges already possess the
authority to set and extend filing deadlines without requiring the
alien to demonstrate the high exceptional circumstances standard.
Commenters also claimed that applicants would not understand the
rejection from the court nor how to remedy it.
Commenters also argued that the Department's assertion that a 30-
day period is sufficient for remediation of application defects because
of EAD incentives is incorrect. Commenters disagreed with the
Department regarding this alleged incentive due to the combined effect
of DHS's recent regulatory changes extending the minimum timeline for
obtaining EAD eligibility and the Department's clarification in this
rule regarding the 180-day timeline for the adjudication of asylum
applications.
Response: As an initial point, commenters provided no evidence that
asylum applications are routinely filed in such a grossly incomplete
manner with errors so great that they cannot be corrected within one
month, and the Department is unaware of any systemic trend of asylum
applications being filed in such a manner. Accordingly, the Department
declines to address further commenters' hyperbolic and unfounded
assertions regarding the scale of deficiencies in initial asylum
applications.
The Department rejects commenters' assertions that that 30-day
deadline to re-file an application is too short, arbitrary, or
prioritizes efficiency above all other concerns. The Department
believes that 30 days is a reasonable time period that balances both
the time necessary for a respondent to amend and return a complete
application and the needs of the immigration court to operate
efficiently. The Department notes that affected applicants must
necessarily have already attempted to file an application, so any
additional changes should be few in number and limited only to those
fields that were incomplete. Applicants in general must meet their
obligation to file an application that is full and complete as part of
the applicant's burden of proof for relief as an initial matter and
should not be relying on this additional 30-day time period to make
significant changes to their applications. The Department also notes
that this 30-day timeline only applies to the Form I-589 itself and
does not prevent applicants from filing additional supporting
documentation after the deadline, provided such filings comply with any
deadlines set by the immigration court.
Further, the 30-day timeline is fully consistent with existing
regulatory provisions requiring the refiling of incomplete asylum
applications ``within a reasonable period'' after return in order to
demonstrate extraordinary circumstances and avoid the application of
the one-year bar. 8 CFR 1208.4(a)(5)(v). Moreover, 30-day filing
deadlines are already well-established in immigration proceedings--
e.g., a motion to reconsider, 8 CFR 1003.23(a)(1); an appeal to the
Board, 8 CFR 1003.38(b)--and the resubmission of an asylum application
is roughly analogous to these other procedures because it requires the
correction of an initial determination. Accordingly, the Department
finds that 30 days is an appropriate amount of time to correct an
incomplete asylum application and disagrees that an additional 15 days
would result in any meaningful benefit, especially when aliens already
have a strong incentive to file quickly in order to begin the process
of attaining eligibility for work authorization and ultimately obtain
relief or protection.
The Department rejects commenters' assertions that the rule is both
redundant and unduly restrictive because immigration judges already
possess the authority to set filing deadlines and are able to extend
these deadlines without establishing exceptional circumstances. See 8
CFR 1003.31(c). When an immigration judge sets a filing deadline under
8 CFR 1003.31, he or she is setting a deadline for the initial filing
of applications and supporting evidence. If an applicant fails to
comply with the deadline, the opportunity to file such applications or
evidence is deemed waived. Id. In contrast, this 30-day deadline
focuses on applicants who have already attempted to file their
application and must merely fix an incomplete application. This re-
filing deadline ensures that applications are ready for adjudication in
a reasonable time period and serves to increase the uniformity,
fairness, and efficiency of the adjudication process. In addition, the
Department believes that the ``exceptional circumstances'' exception is
appropriate in this context because the 30-day deadline commences only
after the initial filing period.
Additionally, as discussed, supra, the Department notes that
commenters' concerns that general delays, including mail carrier
mistakes, could prevent applicants from submitting the Form I-589
within the deadline are true for every deadline--including other
important 30-day deadlines such as for filing appeals to the Board, 8
CFR 1003.38(b)--and that risk is not altered by the rule. Again, the
Department recognizes that no rule can cover every hypothetical
scenario, and the existence of speculative assertions does not warrant
the removal of deadline
[[Page 81731]]
requirements, particularly when other similar deadlines have existed
for years without the ``parade of horribles'' posited by commenters
occurring. The Department believes--and commenters have not
meaningfully or persuasively disputed--that 30 days is a reasonable
time period for applicants to correct minor mistakes and re-file the
application.
As to commenters' concerns regarding applicants' understanding of a
rejection, the Department notes that the rule does not change the
rejection process. EOIR will continue to follow current practice in
rejecting documents, which includes returning the filing with an
explanation for the rejection. See Immigration Court Practice Manual,
Ch. 3.1(d)(i), https://www.justice.gov/eoir/page/file/1258536/download
(last revised July 2, 2020) (``If an application, motion, brief,
exhibit, or other submission is not properly filed, it is rejected by
the Immigration Court with an explanation for the rejection.'').
Commenters have not expressed confusion with the existing process, and
it is well-established. As such, the Department finds changes to these
existing processes unnecessary.
Finally, the Department disagrees with commenters and reiterates
the discussion in the proposed rule that aliens who seek to file asylum
applications are motivated to do so promptly in part because of the
possibility of obtaining employment authorization. See 85 FR at 59624.
While employment authorization eligibility is adjudicated solely by
DHS, the Department finds that the possibility of employment
authorization is generally a desirable benefit for asylum seekers, and
it is illogical that the possibility of obtaining such a benefit would
not be a motivating factor to promptly file a complete asylum
application.
The Department disagrees that DHS's extension of the waiting period
to be eligible to apply for asylum-based employment authorization from
150 days to 365 days would negatively affect this incentive, though it
notes that DHS's extension has been temporarily enjoined with respect
to the individual members of the Plaintiff organizations, CASA de
Maryland, Inc. (``CASA'') and Asylum Seeker Advocacy Project
(``ASAP''). See Casa de Md. v. Wolf,--F.Supp.3d--, 2020 WL 5500165 (D.
Md. Sept. 11, 2020) (preliminarily enjoining, inter alia, DHS's
increase to the waiting period for employment authorization eligibility
for individual members of Plaintiffs CASA and ASAP). Rather, the
Department finds that the longer period would only further increase the
incentive for aliens to start their accrual period for employment
authorization as quickly as possible.
The Department acknowledges comments that the 180-day asylum
adjudication period in INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii), which this rule incorporates as discussed, infra,
counter-balances the 180-day statutory period before which an alien who
has filed an asylum application can apply for employment authorization
under INA 208(d)(2), 8 U.S.C. 1158(d)(2), but notes that counter-
balanced system was established by Congress. Thus, to the extent that
commenters disagree with the interplay of those statutory sections,
their comments are beyond the Department's authority in this rulemaking
and are more appropriately addressed to Congress. The Department
disagrees that this system reduces an alien's incentive to file
promptly for the purposes of earning time towards employment
authorization. Many asylum applications are not currently adjudicated
within 180 days due to operational constraints and the size of the
pending caseload, and the presence of exceptional circumstances causes
adjudicatory delays beyond the 180-day mark for other cases. Moreover,
litigation has effectively forced DHS to adjudicate employment
authorization applications within 30 days after an alien files such an
application once the alien's asylum application has been pending for
the applicable period of time, Gonzalez Rosario v. USCIS, 365 F.Supp.3d
1156, 1163 (W.D. Wash. 2018), and DHS's efforts to change its
regulations to adjust the time periods for adjudicating such
applications have also been enjoined, Casa de Md. v. Wolf,--F.Supp.3d--
, 2020 WL 5500165 (D. Md. Sept. 11, 2020). Consequently, aliens retain
very strong incentives to file complete asylum applications as soon as
possible, and nothing about this rule or the relevant statutory
framework reduces those incentives, particularly in light of the
persistent litigation on this issue.
c. Submission of Form I-589 Fee
Comment: Many commenters broadly criticized the existence or
requirement of a fee for asylum applications, regardless of the dollar
amount of the fee. In addition, commenters objected to the rule's
requirement that aliens must submit a required filing fee in connection
with an asylum application at the time of filing. Commenters stated
that the Department failed to provide any reasoning to justify the
imposition of a fee or to consider the negative impact of the fee. At
least one commenter argued that the Department must separately justify
the inclusion of a fee for the submission of a Form I-589 and cannot
just rely on DHS's determinations without independent analysis or
justification.
The majority of commenters who discussed the fee for asylum
applications raised concerns that asylum applicants would not be able
to afford a $50 filing fee and that their applications would be
rejected as a result.\51\ Accordingly, commenters stated that the rule
violates the United States' non-refoulement obligations. Commenters
provided a wide range of reasons for why asylum seekers would not be
able to afford the $50 fee, including asserting that asylum seekers do
not have the funds to pay such a fee given that those seeking asylum
are often fleeing conflict and arriving to the United States lacking
any resources. Moreover, commenters stated that many asylum seekers are
already severely impoverished, a condition which commenters claim has
only been exacerbated by COVID-19. Several commenters were especially
concerned that asylum seekers who are either detained or subject to the
Migrant Protection Protocols (``MPP'') would be unable to pursue asylum
applications due to an inability to afford the fee. Commenters
explained that detained asylum seekers are only able to earn a trivial
amount of income in detention facilities and noted that many are
currently quarantined, and unable to work at all, during their first 14
days in detention due to the COVID-19 pandemic. Similarly, commenters
explained that individuals subject to the MPP have limited access to
funds. Several commenters also urged the Department to allow fee
waivers for asylum seekers, particularly for individuals who are
detained or subject to MPP.
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\51\ DHS recently established a $50 fee for Form I-589 submitted
for the purposes of applying for asylum in most circumstances. See
85 FR at 46791. This fee would have entered into effect on October
2, 2020, but, as noted supra, it is currently enjoined as a result
of litigation. Immigrant Legal Res. Ctr. v. Wolf, 2020 WL 5798269
(N.D. Cal. Sept. 29, 2020) (granting nationwide preliminary
injunction barring DHS from implementing or enforcing any part of
the rule).
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Commenters were also concerned with the possible impact that other
pending EOIR rules \52\ would have on this provision. Commenters
asserted that because these pending rules have not been published as
final rules yet, it is impossible for them to be able to fully
[[Page 81732]]
comment on this rule's provisions regarding the requirement to pay a
fee.
---------------------------------------------------------------------------
\52\ For example, some commenters were specifically concerned
with the impact that the Department's pending fee rule would have on
this provision. See Executive Office for Immigration Review Fee
Review, 85 FR 11866 (Feb. 28, 2020).
---------------------------------------------------------------------------
Commenters further voiced concern about the alleged difficulties
that unrepresented detained asylum seekers would face in trying to
``fee in'' a Form I-589 with DHS due to the possible methods of
payment. Similarly, commenters stated that asylum seekers in Mexico
would not be able to visit a DHS office in the United States to ``fee
in'' a Form I-589. Commenters further noted that children, who do not
have bank accounts or their own funds, would have unique difficulties
paying a fee to submit the I-589.
Response: Overall, commenters' concerns related to a fee for an
asylum application were both beyond the scope of the rulemaking and
misguided or inapposite in three principal respects. First, few, if
any, commenters acknowledged that the INA authorizes charging a fee for
an asylum application, provided that such a fee does not exceed the
cost of adjudicating the application. INA 208(d)(3), 8 U.S.C.
1158(d)(3). Thus, to the extent that commenters oppose charging a fee
for an asylum application under any circumstance and believe that such
a fee is unauthorized or unlawful, their comments are both beyond the
scope of this rulemaking and are more appropriately addressed to
Congress.
Second, few, if any, commenters acknowledged that the fee for an
asylum application is set by DHS because the asylum application is a
DHS form. Longstanding EOIR regulations make clear that ``[t]he fees
for applications published by the Department of Homeland Security and
used in immigration proceedings are governed by [DHS regulations].'' 8
CFR 1103.7(b)(4)(ii). As stated in the proposed rule, given this
longstanding cross-referenced fee provision, the inextricable nature of
the two agencies' asylum processes and the benefit of not treating
applicants differently for substantially similar benefits based on
whether they file with DOJ or with DHS, the Department did not propose
to alter that provision. See 85 FR 59698. Thus, this rule maintains the
same provision as proposed regarding a fee for an asylum application
and does not impose a new fee for such an application. To the extent
that commenters challenge the propriety of DHS assessing a fee under
INA 208(d)(3), 8 U.S.C. 1158(d)(3) for an asylum application, their
concerns are more appropriately addressed to DHS. Third, and relatedly,
this rule does not alter the longstanding procedures regarding how DHS
forms are treated in immigration court. 8 CFR 1103.7(b)(4)(ii). Rather,
this rule merely adds instructions regarding the submission of the Form
I-589 fee, if any, to a provision of EOIR's regulations that is
topically specific to the conditions and requirements for filing an
asylum application. Although language already exists elsewhere in
EOIR's regulations, see, e.g., 8 CFR 1103.7(a)(3) (``The Department of
Homeland Security shall return to the payer, at the time of payment, a
receipt for any fee paid, and shall also return to the payer any
documents, submitted with the fee, relating to any immigration
proceeding. The fee receipt and the application or motion shall then be
submitted to the Executive Office for Immigration Review.''), this
amendment is meant as an aid to the public should a fee be enforced at
a future date. Thus, to the extent that commenters challenge the
appropriateness of the prior promulgation of 8 CFR 1103.7(b)(4)(ii),
those concerns are also well beyond the scope of this rulemaking.
To reiterate, as a general matter, commenters' broad concerns
regarding the appropriateness of requiring a fee for asylum
applications, the specific amount of the fee, and whether to allow for
a fee waiver for the Form I-589 are outside the scope of this rule.\53\
DHS determines the fee amounts for DHS-maintained forms such as the
Form I-589, and the Department did not change this longstanding
practice in this rule. See, e.g., 8 CFR 1103.7(b)(4)(ii) (``The fees
for applications published by the Department of Homeland Security and
used in immigration proceedings are governed by 8 CFR 103.7.'') and
1103.7(c) (``No waiver may be granted with respect to the fee
prescribed for a Department of Homeland Security form or action that is
identified as non-waivable in regulations of the Department of Homeland
Security.'').
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\53\ As noted supra, the $50 asylum application fee established
by DHS is currently enjoined as the result of litigation. Immigrant
Legal Res. Ctr. v. Wolf, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020)
(granting a nationwide preliminary injunction barring DHS from
implementing or enforcing any part of the rule). Nevertheless, the
response to commenters' concerns in this section discusses the
enjoined $50 fee, as discussed by commenters, given the possibility
of its future application as litigation proceeds.
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Overall the imposition of a non-waivable $50 fee for the Form I-589
for the purposes of asylum is a decision made by DHS following
publication of a proposed rule and the consideration of the public
comments received thereon. See 84 FR 62280 (proposed rule), 85 FR 46788
(final rule). This rule does not amend the well-established regulatory
provisions distinguishing between fees for DHS forms and fees for EOIR
forms, and fees for DHS forms adjudicated by EOIR, including the Form
I-589, continue to be set by DHS. Rather, this rule merely clarifies
when the Form I-589 fee, as determined by DHS, must be paid in the
course of EOIR adjudications.
Nevertheless, even though these concerns are outside the scope of
this rulemaking, the Department disagrees with commenters' concerns
that a $50 filing fee is inappropriate or would be unaffordable, thus
discouraging or preventing individuals from filing meritorious asylum
claims. Cf. Ayuda, Inc. v. Att'y Gen., 661 F. Supp. 33, 35 (D.D.C.
1987) (rejecting concern that increased fees would limit access to
courts), aff'd sub nom. Ayuda, Inc. v. Att'y Gen., 848 F.2d 1297 (D.C.
Cir. 1988). The Department has no evidence--and commenters did not
provide any--to dispute DHS's assessment that a $50 fee ``could be paid
in one payment, would not require an alien an unreasonable amount of
time to save, would generate some revenue to offset costs, discourage
frivolous filings, and not be so high as to be unaffordable to even an
indigent alien.'' 84 FR at 62320. Almost by definition, aliens seeking
asylum have demonstrated access to financial resources by the very
nature of their ability to travel to the United States, further
suggesting that $50 is not an unreasonable amount to charge for an
asylum application.\54\ For
[[Page 81733]]
similar reasons, the Department sees no reason for DHS not to assess a
$50 fee for asylum applications filed by categories of aliens cited by
commenters: Aliens in detention, aliens in removal proceedings who were
returned to Mexico pursuant to the MPP, and children.\55\ The
Department also notes that unverified generalized statements and
anecdotal reports about asylum seekers' financial status do not provide
information about actual hardship, particularly when they do not also
address or account for how the alien obtained financial resources to
make the journey to the United States in the first instance.
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\54\ The Department also observes that most, if not all, aliens
seeking asylum have, almost by definition, already demonstrated
access to financial resources in order to travel to the United
States, further suggesting that $50 is not an unreasonable amount to
charge for such an application:
While there's no fee to apply for asylum, it's not the case that
there are no resources involved in the process. Those migrating from
Europe or Asia need to pay for transit to the United States, as well
as for visas allowing them onto U.S. soil. (You can't apply for
asylum unless you're in the United States.) Those fees start at
about $160.
If you're migrating from Central America, you may need to pay to
ensure you make it to the border safely.
The New York Times reported last year that a family from El
Salvador paid $6,000 to smugglers to transport them to the U.S.-
Mexico border. Part of the goal of the migrant caravans that have
come north in recent months is to provide a low-cost, safe way for
migrants to get north.
Philip Bump, Most migration to the U.S. costs money. There's a
reason asylum doesn't. Wash. Post (Apr. 30, 2019) (referencing a New
York Times report about an El Salvadorean family who paid $6,000 to
smugglers to transport them to the U.S. southern land border).
Similarly, the Department also notes that 85 percent of pending
asylum applicants in immigration proceedings, more than 507,000
cases, have representation. EOIR, Workload and Adjudication
Statistics, Current Representation Rates, (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1062991/download). Although some of
those approximately 507,000 cases with representation may have
obtained representation pro bono, most did not. As of September 30,
2020, EOIR records identified approximately 14,400 asylum cases with
pro bono representation, out of over 507,000 asylum cases with
representation overall. The ability of most aliens applying for
asylum to retain representation at cost further suggests that a $50
fee is not unreasonable.
\55\ As mentioned in note 18, supra, DHS has determined to
exempt UAC in removal proceedings from the $50 fee.
---------------------------------------------------------------------------
The Department further notes that an application for statutory
withholding of removal under section 241 of the Act, 8 U.S.C. 1231, or
protection under the regulations implementing the CAT does not require
a fee. See 8 CFR 106.2(a)(20) (establishing a $50 fee when the Form I-
589 is submitted ``[f]or filing an application for asylum status'').
Accordingly, commenters are incorrect that the rule violates the United
States' non-refoulement obligations set forth in the 1951 Refugee
Convention, the 1967 Protocol, and the CAT. 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, 856 F.3d at 257 & n.16; Ramirez-Mejia, 813 F.3d at 241;
Maldonado, 786 F.3d at 1162 (explaining that Article 3 of the CAT,
which sets out the non-refoulement obligations of signatories, was
implemented in the United States by FARRA (Pub. L. 105-277, sec.
2242(b), 112 Stat. 2681, 2631-822) and its implementing regulations);
see also Cardoza-Fonseca, 480 U.S. at 429, 441 (``[Withholding of
removal] corresponds to Article 33.1 of the Convention. . . . [Asylum]
by contrast, is a discretionary mechanism which gives the Attorney
General the authority to grant the broader relief of asylum to
refugees. As such, it does not correspond to Article 33 of the
Convention, but instead corresponds to Article 34.'') (emphasis in
original).
Regarding commenters concerns that the Department must separately
justify the establishment of an asylum application fee, the Department
reiterates that it is not altering its longstanding treatment of fees
related to DHS applications. 8 CFR 1103.7(b)(4)(ii). DHS has assessed a
fee for most asylum applications, and concerns about the justifications
for that fee are beyond the scope of this rulemaking.
Regarding commenters' concerns about the interplay between this
rule and other rules proposed by the Department, none of the
Department's pending rules would impact this provision. As noted in
other rules, and as discussed above, DHS determines whether or not to
impose filing fees for asylum applications. None of the Department's
pending rules, including its fee review, propose to change this
regulatory scheme. As such, commenters' concerns over not being able to
fully comment on this provision without seeing certain pending rules
published as final rules are unpersuasive.
In addition, regarding commenters' concerns about the ability of
aliens to pay the $50 fee given USCIS's available methods of payment
and commenters' concerns regarding the supposed difficulties that
detained unrepresented asylum seekers and aliens subject to MPP will
face in paying the fee, although such concerns are far beyond the scope
of this rulemaking and more appropriately addressed to DHS, the
Department does note that aliens who submit payments to DHS for forms,
applications, or motions for EOIR adjudications may submit a wide range
of payment methods to USCIS, including personal check, cashier's check,
certified bank check, bank international money order, or foreign draft
drawn on a financial institution in the United States and payable to
the ``Department of Homeland Security'' in United States currency. In
addition, aliens may have a third party provide the payment on their
behalf. Nevertheless, as with the determination of whether to charge a
fee for the Form I-589, the available methods of payment are determined
by USCIS as the payment processing entity for the immigration courts.
See 8 CFR 103.7(a)(1), 1103.7(a)(3).\56\
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\56\ The Department further notes that USCIS accepts electronic
payments in certain contexts, and the Department expects that the
availability of electronic payment methods will continue to expand
over time. USCIS, Forms Available to File Online (June 11, 2020),
https://www.uscis.gov/file-online/forms-available-to-file-online.
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d. Impact on Discrete Populations \57\
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\57\ The Department notes that many of the concerns commenters
raised with respect to the effect that this rule would have on
discrete populations are similar to concerns that commenters also
raised with respect to asylum applicants, generally. To the extent
there is overlap, the Department reiterates the discussion above in
section II.C.2.
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Comment: Commenters raised a broad range of concerns with respect
to the rule's impact on various populations that commenters have
identified as uniquely vulnerable groups, including, inter alia,
alleged victims of gender-based persecution, detained individuals,
familyasylum applicants, indigenous language speakers or non-English
speakers, children, teenagers in custody, individuals with
disabilities, LGBTQ individuals, and individuals with mental-competency
issues. Commenters were primarily concerned with the ability of these
categories of aliens to meet the 15-day filing deadline or 30-day re-
filing correction deadlines.
Commenters expressed concerns that members of such groups need more
time than other applicants to prepare, submit, and present their cases
in support of their applications for a variety of reasons. For example,
commenters stated that due to severe trauma or post-traumatic stress,
some of these populations might need additional time and the assistance
of medical and mental health services to articulate their claims.
Additionally, commenters stated, certain populations might face unique
difficulties obtaining corroborative evidence to support their claims;
for example, commenters stated that victims of gender-based violence
may have been prevented by their traffickers or perpetrators from
owning items that might serve as evidence. Commenters also asserted
that some populations, such as children, might need additional time to
familiarize themselves with processes and become comfortable with their
advocates.
Commenters asserted that some groups faced other unique challenges
in preparing, submitting, and presenting their applications that may
require additional time. For example, applicants submitting family-
based claims might need child care during proceedings because they may
not want to speak about the harm they have suffered in front of their
children. Additionally, commenters stated, indigenous-language speakers
may be unable to find an interpreter to translate the Form I-589 or
documents for submission within the regulatory deadlines. Commenters
anecdotally asserted that some indigenous-language speakers did not
receive credible fear interviews before
[[Page 81734]]
being placed into proceedings because the government was unable to find
an interpreter within the requisite period of time.
Commenters also asserted that some applicants, such as children or
those with mental competency issues, need or require counsel to assist
with preparation, submission, and presentation of their claims. For
example, commenters explained that the deadline would present
challenges for counsel working with children because their age,
development, dependence on adults, particular vulnerabilities, and
experienced traumas (if any) typically increase the time necessary to
develop and corroborate their asylum claims. Further, commenters
explained that children in government custody would have a particularly
difficult time discussing the persecution they faced. Accordingly,
commenters stated that immigration judges should have discretion to set
and extend deadlines pursuant to children's specific and unique needs.
Additionally, commenters asserted that recent changes to the law,
such as Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), have rendered
certain claims uniquely complex. Some commenters asserted that Congress
had recognized a specific obligation to treat children humanely and
fairly, and EOIR had recognized that cases involving children could be
uniquely complex. Commenters asserted that some uniquely situated
applicants, such as detained individuals and children, already face
logistical barriers to access to counsel and legal information.
Accordingly, commenters asserted, such applicants may be especially
disadvantaged by the rule to the extent that it would limit or further
exacerbate their already limited access to counsel.
Furthermore, with respect to individuals with mental competency
issues, some commenters expressed concerns that issues of incompetence
might not be identified until an individual had made several court
appearances. One organization anecdotally stated that it had accepted
National Qualified Representative Program (NQRP) cases, see EOIR,
National Qualified Representative Program (Feb. 18, 2020) (hereinafter
``EOIR, NQRP''), available at https://www.justice.gov/eoir/national-qualified-representative-program-nqrp, in which detained clients had
appeared in court for months before anyone raised the issue of
incompetence. Commenters also generally asserted that the 15-day
deadline for submitting applications might would proceed in violation
of their rights such rights would be violated. Lastly, commenters
alleged that the rule would violate the Rehabilitation Act of 1973. See
29 U.S.C. 794(a).
Response: The Department reiterates its response to similar
comments, supra, and adds the following further response. In general,
commenters on this point misapprehended the rule; provided speculative
hypothetical generalizations that do not account for the case-by-case,
individualized decision-making associated with adjudicating asylum
applications; and made assertions rooted in the rule's failure to align
with the commenters' policy preferences, rather than the identification
of specific legal deficiencies or other factors the Department should
consider. See Home Box Office, 567 F.2d at 35 n.58 (``In determining
what points are significant, the `arbitrary and capricious' standard of
review must be kept in mind. Thus only comments which, if true, raise
points relevant to the agency's decision and which, if adopted, would
require a change in an agency's proposed rule cast doubt on the
reasonableness of a position taken by the agency. Moreover, comments
which themselves are purely speculative and do not disclose the factual
or policy basis on which they rest require no response. There must be
some basis for thinking a position taken in opposition to the agency is
true.'').
Asylum seekers come from a wide range of backgrounds and personal
circumstances, and the Department recognizes that no rule can account
for the backgrounds and circumstances of the hundreds of thousands of
aliens who seek asylum. Nevertheless, the Department disagrees that the
sorts of speculative challenges raised by the commenters are sufficient
to outweigh the benefits obtained from this rule's implementation,
including benefits that would inure to those with meritorious asylum
claims. Further, in a vacuum, the Department has difficulty responding
to commenters' generalized statements about various populations, trauma
experienced by those populations, and other asserted difficulties
because asylum applications are adjudicated based on their specific
facts, not on generalized speculative assertions.\58\ The Department
believes that the timelines set are generally appropriate for the
majority of cases for the reasons discussed above, and that
determinations about extending such deadlines are more appropriately
made on a case-by-case basis rather than providing a categorical
exception for certain types of applicants, as commenters suggest.
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\58\ For example, commenters' concerns about mental illness,
trauma, and developmental challenges may certainly fall within the
rule's good-cause exception for the filing deadline or within the
exceptional circumstances exception to the statutory 180-day
adjudication deadline in particular cases if those concerns are
credible. However, the Department cannot make a blanket
determination based solely on generalizations without context that
such situations will always constitute exceptions because each case
is considered on its own merits. Moreover, the credibility of such
assertions will always be at issue because they provide an exception
to the general rule, and it is difficult, if not impossible, for the
Department to make generalized credibility determinations in a
rulemaking.
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Neither the 15-day filing deadline nor the 30-day correction
deadline imposes one-size-fits-all deadlines. In cases where
applicants' unique circumstances necessitate additional time to
prepare, submit, or present their asylum applications, the Department
reiterates that the immigration judge is authorized to consider
extending these timelines on a case-by-case basis. See 8 CFR
1208.3(c)(3) (stating that failure to correct deficiencies within 30
days will result in abandonment of an application and waiver of the
opportunity to file such application ``absent exceptional circumstances
as defined in Sec. 1003.10(b)''); 8 CFR 1208.4(d) (stating, with
respect to the 15-day filing deadline, that ``[t]he immigration judge
may extend the deadline for good cause.''). In general, determining
whether ``good cause'' or ``exceptional circumstances'' exist would
likely include consideration of the factors that commenters asserted
arise with respect to the broad types of asylum applicants identified
by the commenters.
In addition, the Department notes that an immigration judge's
discretionary determination with respect to whether an alien merits
either an extension of the 15-day deadline or demonstrated exceptional
circumstances to extend the 30-day refiling deadline may be appealed to
the Board in cases where the issue has been properly preserved for
appeal. Accordingly, further review and protection is available for
these classes of applicants.
In short, the Department acknowledges commenters' concerns about
discrete groups of individuals and has fully considered them; however,
the rule does not single out any discretely-labeled groups, nor does it
preclude the groups identified by commenters from pursuing their
claims. To the extent that aliens within those groups have meritorious
claims, the rule will, in fact, ensure that those claims are
adjudicated expeditiously, especially for aliens in detention. The rule
also provides sufficient safeguards in situations in which individuals
may need additional time, and commenters' unfounded
[[Page 81735]]
assertions to the contrary are not persuasive. The rule is consistent
with due process, aids in the protection of the groups identified, and
provides benefits that far outweigh any concrete concerns raised by
commenters.
With respect to commenter concerns regarding mental competency
issues, the Department notes that there is existing agency protocol for
ensuring that proceedings involving such individuals are fair,
including forensic competency evaluations and implementing safeguards,
where appropriate. See Matter of M-A-M-, 25 I&N Dec. 474, 474, 477,
480-81 (BIA 2011); EOIR, NQRP. The Department acknowledges, as
commenters stated, that mental competency issues might arise after
numerous hearings. However, as case law has always considered, mental
competency ``is not a static condition.'' Matter of M-A-M-, 25 I&N Dec.
at 480. ``It varies in degree. It can vary over time. It interferes
with an individual's functioning at different times in different
ways.'' Id. (quotation omitted). Thus, immigration judges must
``consider indicia of incompetency throughout the course of proceedings
to determine whether an alien's condition has deteriorated or, on the
other hand, whether competency has been restored.'' Id. The Department
notes that ``neither party bears a formal burden of proof to establish
the respondent's mental competency or incompetency.'' Matter of J-S-S-,
26 I&N Dec. 679, 681 (BIA 2015). Thus, if an immigration judge observes
indicia of incompetency, regardless of whether a party argues that such
indicia are present, an immigration judge must make a competency
determination and implement the appropriate safeguards, where
necessary. Id. at 680, 681 (citing Matter of M-A-M-, 25 I&N Dec. at
474, 477, 480-81).
Although an immigration judge must make a competency determination
when indicia of competency are present, this does not mean that an
immigration judge should delay proceedings indefinitely simply because
indicia might arise later in any particular case. The Department
believes that the existing protocols, in conjunction with the
immigration judge's authority to extend filing deadlines in appropriate
situations and the various exceptions provided by the rule, are
sufficient to ensure fairness towards applicants with mental competency
issues. Moreover, the Department disagrees with commenter concerns that
this rule would violate the Rehabilitation Act of 1973. See 29 U.S.C.
794(a). This rule is broadly applicable to all applicants, does not
impose any particular requirements on applicants with disabilities,
does not prevent applicants with disabilities from participating in
immigration proceedings, and provides that immigration judges may
extend regulatory timelines in appropriate situations.
e. Impact on Pro Se Aliens
Comment: Commenters were concerned that the filing deadlines would
disproportionately and detrimentally affect pro se aliens and interfere
with the ability of those aliens to seek and obtain counsel. As a
result, commenters alleged that the Department was engaging in a
pattern or practice of discrimination against a discrete and insular
minority comprised of current and future pro se asylum applicants. The
commenters alleged that the deadline deprived pro se asylum seekers
equal protection under the law and therefore violated the Fifth
Amendment's equal protection guarantee. See U.S. Const. amend. V.
Further, for pro se aliens, commenters were concerned that the
rule's deadlines were too short for pro se aliens to complete the
complex application on their own, particularly considering language
barriers, trauma, education levels, and lack of familiarity or
understanding of complex immigration laws.
Response: The Department reiterates its response to similar
comments, supra, and adds the following further response. In general,
commenters on this point again misapprehended the rule; provided
speculative, hypothetical generalizations that do not account for the
case-by-case and individualized decision-making used to adjudicate
asylum applications; and, made assertions rooted in the rule's failure
to align with the commenters' policy preferences rather than the
identification of specific legal deficiencies or other factors the
Department should consider.
The rule does not harm pro se aliens and does not impact the
availability of pro bono representation. To the contrary, expeditious
consideration of the asylum applications that detained aliens file may
increase pro bono representation. See, e.g., HRF Report supra. To the
extent that commenters posited hypothetical scenarios about particular
characteristics of pro se aliens, the Department notes that if such
scenarios are reflected by actual applicants, then the immigration
judge can consider whether any factors referenced by the commenters
warrant an extension of the filing deadline.
Given the limited available avenues for relief or protection; the
common goal of providing relief or protection to aliens with
meritorious claims as quickly as possible, especially those who are
detained; and the risk of loss or degradation of evidence with the
passing of time, the Department believes the benefits of the rule, on
balance, far outweigh the speculative concerns raised by commenters.
The Department further notes that nothing in the rule prohibits
nonprofit organizations, pro bono groups, or any other class of
representatives from taking an alien's case at a later point in the
proceedings. An alien who obtains counsel may also choose a
representative at any point in the proceedings, including after filing
an application. Thus, pro se aliens have more opportunities to obtain
assistance that many commenters suggested.
The Department also notes that 85% of aliens with pending asylum
cases have representation. EOIR, Adjudication Statistics: Current
Representation Rates (Oct. 13, 2020), available at https://www.justice.gov/eoir//file/1062991/download. For those who do not,
there are multiple avenues they may pursue to obtain representation.
See EOIR, Find Legal Representation (Oct. 1, 2020), available at
https://www.justice.gov/eoir/find-legal-representation.\59\
Nevertheless, the Department has fully considered the possible impacts
of this rule on the relatively small pro se population of aliens who
seek asylum before EOIR. However, the rule does not single such aliens
out for particular treatment under EOIR's procedures. Moreover,
immigration court procedures are generally not excused for pro se
respondents, just as they are not excused generally for pro se civil
litigants. See, e.g., McNeil v. United States, 508 U.S. 106, 113 (1993)
(``[W]e have never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by those who
proceed without counsel.''); Edwards v. INS, 59 F.3d 5, 8-9 (2d Cir.
1995) (rejecting a pro se alien litigant's arguments for being excused
from Federal court procedural
[[Page 81736]]
requirements due to his pro se status). Although the Department
acknowledges the challenges faced by pro se litigants and recommends
that all aliens obtain representation, nothing in the rule singles out
pro se aliens or has the effect of exacerbating their situation.\60\
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\59\ Although the Department acknowledges that nonprofit
organizations and pro bono volunteers, like all legal
representatives, may face unforeseen challenges confronting new
rules or procedures, the Department is confident that such
representatives will be able to handle such changes, just as they do
in any other court system, and will continue to be able to provide
assistance and resources to aliens in proceedings before EOIR.
Moreover, as discussed throughout this rule, most of this rule's
provisions are simply codifications of longstanding principles that
have been applicable to practitioners for years, including the
ability of an immigration judge to establish and extend filing
deadlines, to introduce evidence, and to ensure asylum applications
are adjudicated consistent with regulatory and statutory
authorities.
\60\ There is no evidence that the shorter filing deadline in 8
CFR 1208.5(b) has discriminated against pro se aliens in any way,
and commenters did not allege that it had. Further, even if that
deadline had a discriminatory impact, as commenters alleged the rule
will, it would not--and the rule does not--violate the Fifth
Amendment's equal protection guarantee, see U.S. Const. amend. V.,
because it does not burden fundamental rights. See Heller v. Doe,
509 U.S. 312, 319 (1993) (affording a strong presumption of validity
to a classification that does not involve fundamental rights or
proceedings along suspect lines).
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Further, there is at least a rational basis for the rule's
deadline. Establishing a deadline, as explained in 85 FR at 59694,
reduces the risk of delayed filing, which, in turn, reduces the risk of
delayed grants of protection or relief for meritorious claims and
reduces the risk of degradation or loss of evidence over time. Cf.
DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir. 1999) (``[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.'') (citing Francis v. Immigration and
Naturalization Serv., 532 F.2d 268, 272 (2d Cir. 1976) (internal
citations omitted). It is also consistent with a similar existing
deadline in 8 CFR 1208.5(b), a regulatory directive in 8 CFR 1208.5(a)
to adjudicate cases of detained aliens expeditiously, and the
longstanding authority in 8 CFR 1003.31(c) of immigration judges to set
deadlines. In short, the rule does not violate due process for pro se
aliens, just as it does not violate due process for any category of
aliens.
Additionally, the Department disagrees that pro se aliens cannot
meet the 15-day filing deadline or cure any deficiencies in their
applications within 30 days. The Form I-589 spans eight pages--plus an
additional page for signatures and supplemental pages, as needed--and
DHS estimates the time necessary to review the instructions and
complete and submit the form is 12 hours. See U.S. Citizenship and
Immigration Services, Form I-589, Application for Asylum and for
Withholding of Removal, OMB No. 1615-0067 (Aug. 25, 2020), available at
https://www.uscis.gov/sites/default/files/document/forms/i-589.pdf;
U.S. Citizenship and Immigration Services, Form I-589, Application for
Asylum and for Withholding of Removal, Instructions, OMB No. 1615-0067
(Aug. 25, 2020), available at https://www.uscis.gov/sites/default/files//forms/i-589instr.pdf. Instructions to Form I-589 are available
and written to assist applicants with or without representation. See
id.; see also note 26, supra (discussing the wide availability of
information on applying for asylum, including information in multiple
languages).
Further, apart from seeking representation, many pro se aliens may
access various resources to assist them in completing this form. Within
the Department's Office of Legal Access Programs, a wide variety of
self-help materials and legal centers, workshops, and orientations are
available to assist aliens if they so choose. See Executive Office for
Immigration Review, Office of Legal Access Programs (Feb. 19, 2020),
available at https://www.justice.gov/eoir/office-of-legal-access-programs. Considering that aliens in asylum-and-withholding-only
proceedings are only eligible for relief available through Form I-589,
see 8 CFR 1208.2(c)(3)(i), the Department believes that the 15-day
deadline is sufficient to complete the Form I-589 and that 30 days is
sufficient to correct any deficiencies, including for a pro se alien.
The existence of the possibility of an extension of those deadlines
further provides a safety net for pro se aliens to ensure that their
applications are completed in a timely and accurate manner.
5. Concerns With Form I-589 Procedures
a. Supplementing the Record
i. Evidence From Non-Governmental Sources
Comment: Commenters raised concerns with the rule's clarification
on the evidentiary standards for the admission of non-governmental
source evidence. Commenters claimed that the rule would create a double
standard by treating governmental sources as automatically reliable
while requiring foreign government and non-governmental sources to meet
a ``credible and probative'' standard. Commenters stated that this was
particularly problematic because United States governmental sources are
subject to political pressures and often do not present accurate or
complete depictions of conditions in other countries. One commenter
claimed that this would violate the Refugee Act, which aimed to remove
political or foreign policy influence from asylum determinations.
Commenters were also concerned that the ``credible and probative''
standard was a new, higher standard than the existing probative
standard for evidentiary submissions and that the term ``credible''
only exists in asylum law as it relates to oral testimony. Commenters
further claimed that requiring a ``credible and probative'' standard
would limit or exclude the evidence that an alien could submit, which
would in turn violate an alien's due process right to present evidence.
Moreover, commenters expressed concern that the ``credible and
probative standard'' could be used in conjunction with a separate
proposed rulemaking which would establish that evidence promoting
cultural stereotypes was inadmissible, to inappropriately exclude
evidence that would support an applicant's claim. See 85 FR at 36264.
Specifically, commenters expressed concern that immigration judges
would mischaracterize the ``quality'' of submitted evidence in order to
bar admission of evidence that might support an applicant's claim and,
under the other proposed rule, refuse to submit evidence based on the
substance. Commenters suggested that it would be inappropriate for
immigration judges to bar the admission of evidence that might in
substance support an applicant's claim based on the ``quality of the
messenger.'' Additionally, commenters stated that the standard would
minimize the value of non-governmental sources such as non-governmental
organization reports, which commenters claimed were very reliable, and
would thereby diminish the credibility of such sources.
Lastly, commenters requested the Department provide a definition of
``credible and probative,'' claiming that the standard was unclear and
could fail a vagueness challenge.
Response: As an initial point, commenters did not generally explain
why it would be appropriate for an immigration judge to consider
evidence from non-credible source or that is not probative, and the
Department is aware of no such reason. Evidence from non-credible
sources of that is not probative provides no assistance to an
adjudicator almost by definition, and the Department is unaware of any
justification for allowing the consideration of such evidence.
Similarly, commenters' assertions that immigration judges would
mischaracterize evidence rest on the tacit suggestion that immigration
judges are incompetent or unethical and are either incapable or
unwilling to adhere
[[Page 81737]]
to applicable law. As discussed elsewhere in this final rule, that
assertion is unsupported and appears to stem from the personal biases
or policy preferences of commenters, rather than any objective
evaluation of immigration judges. Chem. Found., Inc., 272 U.S. at 14-15
(``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.'').
Moreover, such unsupported and tendentious assertions provide no basis
for the Department to alter the NPRM.
Further, this rule does not change the longstanding standards for
the admission of evidence in immigration proceedings--whether the
evidence is probative and its admission is fundamentally fair. See
Matter of Y-S-L-C-, 26 I&N Dec. 688, 690 (BIA 2015) (explaining that
``the test for admitting evidence is whether it is probative and its
admission is fundamentally fair''); Nyama v. Ashcroft, 357 F.3d 812,
816 (8th Cir. 2004) (stating that the ``traditional rules of evidence
do not apply to immigration proceedings'' and that the ``sole test for
admission of evidence is whether the evidence is probative and its
admission is fundamentally fair'') (quoting Espinoza v. INS, 45 F.3d
308, 310 (9th Cir. 1995)). Once admitted, the immigration judge must
then weigh the evidence to determine whether the burden of proof has
been met. See, e.g., Le Bin Zhu v. Holder, 622 F.3d 87, 92 (1st Cir.
2010) (affording less evidentiary weight to an unauthenticated foreign
local government notice); Song Wang v. Keisler, 505 F.3d 615, 622 (7th
Cir. 2007) (giving ``little weight'' to an unauthenticated foreign
certificate). In weighing the evidence, the immigration judge may look
to the credibility of the source. The rule simply clarifies that
foreign government and non-governmental \61\ sources are not
automatically presumed credible, and evidence from these sources is not
presumed probative, as the prior regulatory language may have
unintentionally implied.
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\61\ The Department notes that, consistent with common
understanding and typical linguistic usage, an alien testifying in
support of his or her own application is not considered a ``non-
governmental source.'' Whether an alien's testimony in support of
his or her own application is credible will continue to be assessed
based on applicable law. See, e.g., INA 208(b)(1)(B)(iii), 8 U.S.C.
1158(b)(1)(B)(iii) (outlining the bases for the credibility
determination of an asylum applicant).
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Contrary to commenters' claims, this clarification has no effect on
the ability of aliens to present evidence. See, e.g., Colmenar v. INS,
210 F.3d 967, 971 (9th Cir. 2000) (finding a due process violation when
the alien was not provided a reasonable opportunity to present
evidence). Instead, immigration judges will continue to review all
evidence presented and determine admissibility and weight accordingly.
The rule is also not intended to make any implicit negative judgments
on the general credibility of foreign government or non-governmental
sources and does not change the immigration judges' process of weighing
evidence in applying burdens of proof. See, e.g., 8 CFR 1240.8 (burdens
of proof in removal proceedings).
Moreover, the rule does not mean that evidence from governmental
sources is always admissible, as such evidence must still be relevant
or probative. For example, in an asylum case involving an alien from
Guatemala, the State Department report on conditions in Australia would
not be probative of conditions in Guatemala. In general, however, State
Department reports are considered ``highly probative evidence and are
usually the best source of information on conditions in foreign
nations.'' Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 213 (BIA 2010)
(abrogated on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130
(2d Cir. 2012)); see also Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th
Cir. 2008) (``U.S. Department of State country reports are the `most
appropriate and perhaps the best resource for information on political
situations in foreign nations.' '') (quoting Kazlauskas v. INS, 46 F.3d
902, 906 (9th Cir. 1995)); accord 8 CFR 1208.11 (expressly allowing
immigration judges to seek comments from the State Department regarding
asylum applications). In particular, State Department reports offer
both a country-wide perspective and localized comparisons that are
particularly relevant for internal relocation determinations, 8 CFR
1208.13(b)(1)(i)(B), (2)(ii), and are often missing from reports from
other sources. See, e.g., Department of State, Bureau of Conflict and
Stabilization Operations, Northern Triangle Country Conditions: Ranking
the Highest and Lowest Areas of Reported Homicides, Disappearances, and
Extortion (May 2019), https://www.justice.gov/eoir/page/file/1180706/download (discussing rates of homicides, disappearances, and extortion
at a municipality level in countries with high rates of asylum
applications).
Despite commenters' concerns, once admitted as evidence, State
Department reports warrant particular consideration because of their
credible source: The ``collective expertise and experience of the
Department of State, which has diplomatic and consular representatives
throughout the world.'' Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. at 213.
The same logic applies to documents from other United States
governmental agencies within their areas of expertise.
Based on this assessment, the Department believes that immigration
judges should continue to rely on United States governmental sources,
if relevant or probative, and should generally consider them as
evidence when deciding an asylum case. The Department notes that the
rule does not prevent asylum applicants from submitting additional
probative evidence from credible sources if they believe that evidence
from a United States governmental source has not provided a complete
account of conditions in a foreign country or from arguing why, in a
particular case, an immigration judge should afford less weight to any
particular evidence, including evidence from government sources.
Similarly, the rule does not prevent the immigration judge from
weighing such information together in making the judge's final
determination on whether the parties have met their burden of proof.
The Department disagrees with commenters that this rule could be
used in conjunction with an earlier proposed rule which, if finalized,
would bar admission of pernicious, unfounded evidence that is
predicated upon harmful stereotypes from being entered into the record,
to improperly reject evidence that may support an applicant's claim. 85
FR at 6282; cf. Matter of A-B-, 27 I&N Dec. at 336 n. 9 (``On this
point, I note that conclusory assertions of countrywide negative
cultural stereotypes, such as A-R-C-G-'s broad charge that Guatemala
has a `culture of machismo and family violence' based on an unsourced
partial quotation from a news article eight years earlier, neither
contribute to an analysis of the particularity requirement nor
constitute appropriate evidence to support such asylum
determinations.''). Both rules are ultimately about barring admission
of baseless, incredible, and non-probative evidence, whether because of
the source or the content of the evidence. To the extent that
commenters suggest that immigration judges would choose to bar evidence
that does not support a particular narrative, i.e., suggesting that
immigration judges are partial to a particular narrative or
disposition, the Department strongly disagrees. As discussed at length,
infra, section II.C.5.a.ii, EOIR's immigration judges are impartial
adjudicators, and are not
[[Page 81738]]
expected to predetermine the admissibility of evidence based upon
whether it supports a particular narrative.
Finally, the Department does not believe that the credible and
probative standards require any additional definitional language, as
these have been part of the evidentiary standards for decades without
apparent confusion. See, e.g., Trias-Hernandez v. INS, 528 F.2d 366,
369-70 (9th Cir. 1975) (applying the probative evidence test).
ii. Authority of the Immigration Judge To Supplement the Record
Comment: Commenters expressed concerns that the rule would
undermine the immigration judge's neutrality or exacerbate an existing
lack of neutrality. Specifically, commenters stated that the rule would
improperly expand an immigration judge's power and that allowing
immigration judges to introduce evidence into the record conflicts with
their role as neutral arbiters of the law. Other commenters complained
that immigration judges are already biased, citing some immigration
judges' previous employment history with DHS, decisions from the
Federal courts that acknowledge biased decisions from immigration
judges, and records alleging EOIR misconduct. Commenters stated that
allowing immigration judges to submit their own evidence would put them
in the posture of a prosecutor or defense attorney rather than a judge.
Some commenters suggested that immigration judges would work in tandem
with DHS attorneys to deny asylum claims. Commenters stated that a rule
that undermined an adjudicator's impartiality would undermine aliens'
due process rights. Commenters expressed concerns that immigration
judges would have pre-prepared country conditions evidence packets to
submit during removal proceedings, which they alleged would be
improper.
Commenters generally stated that this rule would be harmful to
aliens, and several commenters alleged that the rule would be
particularly harmful to certain discrete populations or pro se aliens.
Commenters asserted that pro se aliens may be less able to present
evidence on their own behalf in support of their claims. Additionally,
commenters stated that the rule does not explicitly state whether pro
se aliens will be told that they have a right to object to the
evidence.
Commenters expressed concern that the rule did not provide
sufficient guidance or protections for aliens in proceedings in which
the immigration judge introduces evidence into the record. For example,
commenters expressed concern that the rule did not specify the period
of time in which parties must respond to evidence submitted by the
immigration judge or provide guidance that parties could respond to
such evidence. Commenters suggested that the rule's language stating
that parties should have an opportunity to respond or object to
evidence was at odds with the chapter 3.1(b) of the Immigration Court
Practice Manual, which requires parties to submit evidence at least 15
days before a hearing.
Commenters suggested that immigration judges would not fairly hear
challenges to the evidence the immigration judge may have submitted.
Some commenters speculated that parties, particularly pro se immigrants
and vulnerable populations, would be too intimidated to raise
objections to evidence submitted by the immigration judge. Other
commenters expressed concerns that the rule failed to provide guidance
regarding what types of evidence immigration judges may include.
Further, commenters opposed the rule because they claimed it failed to
specify whether parties would have the opportunity to submit comments
or objections in writing to evidence submitted by the immigration
judge.
Commenters were concerned that non-English speakers would not
understand English-language documents submitted by an immigration
judge. Commenters stated that there was no provision allowing for a
continuance for the parties to review and respond to the newly
introduced evidence.
Commenters stated that the rule would violate section 240(b)(1) of
the Act, 8 U.S.C. 1229a(b)(1), which provides that ``[t]he immigration
judge shall administer oaths, receive evidence, and interrogate,
examine, and cross-examine the alien and any witnesses.'' Specifically,
commenters asserted that Congress did not intend to confer authority on
immigration judges to submit evidence because the statute specified
only that the immigration judge may receive evidence but was silent
with respect to whether the immigration judge could submit evidence.
Commenters further stated that, prior to the IIRIRA amendments, the Act
authorized immigration judges to ``present and receive evidence,''
which commenters believed further demonstrated that Congress did not
intend for immigration judges to have the authority to submit evidence
into the record. Commenters similarly stated that the rule conflicts
with the regulations at 8 CFR 1003.10(b) (stating that immigration
judges may ``receive evidence'') and 8 CFR 1240.1(c) (stating that
immigration judges may ``receive and consider material and relevant
evidence'').
Some commenters suggested that the rule was at odds with other
recent agency rulemakings, such as 85 FR 36264 (addressing
admissibility of stereotype evidence) (proposed), and 85 FR 52491
(limiting immigration judges' discretion by restricting their sua
sponte authority to reopen cases) (proposed).
Some commenters stated that the rule would be ineffective at
addressing inconsistencies and defects in immigration courts, such as,
the commenters claimed, disparate patterns in immigration-judge
decisions. Commenters stated that the rule would similarly be
ineffective at achieving its purpose of allowing decisions to be made
after full consideration of the evidence.
Some commenters stated that the rule would be inefficient at
reducing overloaded dockets because immigration judges would be
responsible for searching for evidence and consulting with parties
about such evidence, which the commenter opined would require a great
deal of time and resources and result in more appeals to the Federal
circuit courts.
Commenters recommended a number of changes to the rule, including
allowing immigration judges to submit only favorable evidence to the
alien. Commenters suggested that such a rule would be similar to
procedures already in place at other government agencies, such as the
Social Security Administration and Department of Veterans Affairs.
Commenters were concerned that the rule did not provide sufficient
guidance regarding how immigration judges should consider and respond
to objections to their admission of evidence on the record.
Response: The Department reiterates its response to similar
comments, supra, and adds the following further response. As an initial
point, few, if any, commenters acknowledged that immigration judges
have been tasked with developing the record in asylum cases for many
years, including by submitting evidence on their own authority, with no
noted concerns, challenges, or complaints. See 85 FR at 59695
(collecting authorities). Indeed, ``various guidelines for asylum
adjudicators,'' including ones such as the UNHCR whose views most
commenters otherwise supported, ``recommend the introduction of
evidence by the adjudicator.'' Matter of S-M-J-, 21 I&N Dec. at 729
(citing UNHCR, Handbook on Procedures and
[[Page 81739]]
Criteria for Determining Refugee Status under the 1951 Convention and
the 1967 Protocol Relating to the Status of Refugees paras. 203, 204,
at 48 (1992)). Thus, the rule merely codifies a long-accepted and well-
recognized practice.
As discussed, supra, the Department strongly disagrees with
commenters' suggestions that immigration judges are biased or
incompetent and will ignore applicable law or make decisions on factors
outside of the record and the law. The Department is confident that
EOIR's immigration judge corps adheres to the highest levels of
professionalism and will continue to apply their independent judgment
and discretion, 8 CFR 1003.10(b), when evaluating asylum applications.
Generalized, ad hominem allegations of bias or impropriety are
insufficient to ``overcome a presumption of honesty and integrity in
those serving as adjudicators.'' Withrow v. Larkin, 421 U.S. at 47. As
such, the Department declines to accept commenters' broad and unfounded
asseverations that immigration judges are biased against aliens and
will utilize this rule to effectuate those biases. Chem. Found., Inc.,
272 U.S. at 14-15 (``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.'').
Relatedly, most commenters failed to recognize or acknowledge the
inherent neutrality and impartiality of immigration judges. See
Executive Office for Immigration Review, Ethics and Professionalism
Guide for Immigration Judges, sec. V (Jan. 26, 2011), available at
https://www.justice.gov/eoir/sibpages/IJConduct/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.''); see also 5 CFR 2635.101(b)(8) (``[Federal Government]
[e]mployees shall act impartially and not give preferential treatment
to any private organization or individual.''). Further, commenters
failed to understand that evidence is designed to assist the
factfinder--i.e., the immigration judge--rather than to benefit one
party over another. In short, commenters' tendentious views that
immigration judges are routinely biased against aliens and that the
rule will promote their biases is wholly unfounded in law and practice
\62\ and completely inapposite to the purposes served by evidentiary
submissions in an immigration hearing.
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\62\ The Department further notes that complaints of misconduct
against immigration judges have declined for three consecutive
fiscal years, even as the size of the corps has grown to its largest
level in the Department's history. See EOIR, Adjudication Statistics
(Oct. 23, 2019), https://www.justice.gov/eoir/page/file/1163621/download; Immigration Judge (IJ) Complaints (Oct. 2020), available
at https://www.justice.gov/eoir/page/file/1104851/download.
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The Department disagrees with commenters' concerns that this rule
would undermine the immigration judge's role as a neutral arbiter. The
rule amends the regulations so that immigration judges may, in their
discretion, consider evidence that has not been presented by the
parties in order to make their determinations. Nothing in the rule has
any bearing on judicial interpretations of such evidence. The
Department fully expects, as mandated by regulation, that in complying
with this rule, immigration judges to continue to conduct themselves as
neutral arbiters of the law. See 8 CFR 1003.10(b); see also 5 CFR
2635.101(b)(8).
Notably, immigration judges have long had the authority and duty to
manage immigration court hearings, including creating and controlling
the record of proceeding, and to fully develop the record, while
impartially adjudicating cases before them. 8 CFR 1003.10(b); see also
8 CFR 1003.36 (``The Immigration Court shall create and control the
Record of Proceeding.''). It is also consistent with an immigration
judge's duty to develop the record. See 85 FR at 59695 (collecting
authorities).
Commenters' suggestions that immigration judges might create
standard country conditions packets of evidence that they might enter
into the record did not explain why such evidence would be
inappropriate or improper. As a matter of standard practice, both
parties already submit standard (and voluminous) packets of country
conditions evidence of varying degrees of probative value. In cases
where country conditions evidence is lacking--e.g., the most recent
relevant State Department Country Report on Human Rights Practices--
many immigration judges already provide copies of such evidence to both
parties. Commenters did not explain why allowing immigration judges to
provide standard country conditions reports--longstanding and credible
sources of directly relevant information that frequently require the
submitting party to print out hundreds of pages--would be improper, and
the Department is unaware of any reason to conclude that it would be.
Further, such a procedure, which, again, is already commonly employed
by immigration judges, particularly pursuant to Matter of S-M-J-, would
not undermine the immigration judge's neutrality or the fairness of
proceedings. The immigration judge would weigh such evidence, like any
evidence submitted into the record pursuant to this rule, against all
other evidence of record in issuing a final determination. Moreover, to
the extent that commenters' concerns are actually rooted in a tacit
belief that additional probative evidence exists that has not been
submitted by an asylum applicant and would call into doubt the validity
of the applicant's claim, the Department finds the suggestions that
immigration judges should decide cases without as much probative
evidence as possible or that it is preferable for immigration judges to
decide cases with less probative evidence utterly unpersuasive.
The Department reiterates its rejection of any implication that
EOIR's corps of immigration judges is biased. Immigration judges, who
have been selected based on merit, are required to adjudicate cases in
an ``impartial manner,'' 8 CFR 1003.10(b), exercise ``independent
judgment and discretion,'' id., and ``should not be swayed by partisan
interests or public clamor,'' Executive Office for Immigration Review,
Ethics and Professionalism Guide for Immigration Judges, sec. VIII
(Jan. 26, 2011), available at https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf.
Regardless of previous experience, immigration judges are sworn in and
governed by the same regulations and ethical standards to be neutral
and impartial. Nothing in this rule affects those obligations, and
commenters' unfounded accusations of bias leading to due process
violations are insufficient to ``overcome a presumption of honesty and
integrity in those serving as adjudicators.'' Withrow v. Larkin, 421
U.S. at 47.\63\
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\63\ Although the Department acknowledges prior high-profile
criticisms of immigration judge bias by circuit courts, see, e.g.,
Islam v. Gonzales, 469 F.3d 53, 56 (2d Cir. 2006) (``Unfortunately,
this is not the first time that the courtroom conduct of IJ
[Jeffrey] Chase has been later questioned by this Court. By our
count, this is the seventh time that we have criticized IJ Chase's
conduct during hearings. Our recent opinion . . . described IJ
Chase's `apparent bias against [the applicant] and perhaps other
Chinese asylum applicants,' . . . and five summary orders in our
Circuit have expressed similar concerns about IJ Chase's remarks and
demeanor while conducting hearings.'') (internal citations omitted),
and notes that commenters also cited to federal court cases that
discuss or touch upon immigration judge bias, Ali v. Mukasey, 529
F.3d 478 (2d Cir. 2008); Wang v. Att'y Gen. of U.S., 423 F.3d 260
(3d Cir. 2005); Zuh v. Mukasey, 547 F.3d 504 (4th Cir. 2008);
Floroiu v. Gonzales, 481 F.3d 970 (7th Cir. 2007); Tun v. Gonzales,
485 F.3d 1014 (8th Cir. 2007), the concerns reflected by these cases
are more than a decade old. More recent information reflects that
complaints of misconduct against immigration judges have fallen for
three consecutive fiscal years despite a significant increase in the
size of the corps. See Executive Office for Immigration Review,
Adjudication Statistics: Immigration Judge (IJ) Complaints (Oct.
2020), available at https://www.justice.gov/eoir/page/file/1104851/download. Nevertheless, to the extent that commenters remain
concerned about the bias or other conduct of immigration judges, the
Department notes that EOIR has developed a mechanism for raising
such complaints specifically for the purpose of addressing bias by
EOIR adjudicators. See Executive Office for Immigration Review, EOIR
Adjudicator Complaint Process Summary (rev. Oct. 15, 2018),
available at https://www.justice.gov/eoir/page/file//download (``In
instances where concerns regarding the conduct of an immigration
judge, board member, or administrative law judge (collectively,
adjudicator) arise, EOIR is committed to ensuring that any
allegations of judicial misconduct are investigated and resolved in
a fair and expeditious manner.'').
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[[Page 81740]]
The Department rejects commenters' insinuations that immigration
judges would not be impartial in entering evidence to the record or
would only introduce evidence that would be damaging to an alien's
claim. Immigration judges are bound by regulation to ``resolve the
questions before them in a timely and impartial manner.'' 8 CFR
1003.10(b) (emphasis added); see also 5 CFR 2635.101(b)(8)
(``[Immigration judges] shall act impartially and not give preferential
treatment to any private organization or individual.''). The rule
permits immigration judges to submit probative evidence from credible
sources into the record. Such evidence may benefit either party,
depending on the larger context and facts of the case, but the purpose
of the rule is not to assist either party. The purpose is to allow the
adjudicator, consistent with current practice and case law, to develop
the record sufficiently to make an informed decision regarding the
merits of the case. Allegations regarding whether such procedures,
which are already well-established, will benefit one party over another
are both grossly speculative and wholly inapposite. Additionally, this
rulemaking does not bar parties from submitting their own evidence, so
long as it is admissible. It merely permits the immigration judge to
submit additional evidence where necessary and in an exercise of
discretion, so that the immigration judge may render a decision based
upon a fully developed and probative record.
The Department disagrees with commenters' concerns that authorizing
the immigration judge to supplement the record would harm pro se
aliens. To the contrary, immigration judges already have a well-
established obligation to develop the record in cases of pro se aliens.
See Mendoza-Garcia v. Barr, 918 F.3d 498, 504 (6th Cir. 2019)
(collecting cases); see also Al Khouri v. Ashcroft, 362 F.3d 461, 464-
65 (8th Cir. 2004) (``[I]t is the IJ's duty to fully develop the
record. Because aliens appearing pro se often lack the legal knowledge
to navigate their way successfully through the morass of immigration
law, and because their failure to do so successfully might result in
their expulsion from this country, it is critical that the IJ
scrupulously and conscientiously probe into, inquire of, and explore
for all the relevant facts.'') (citations and internal quotation marks
omitted). Further, this rule will ensure pro se aliens, who may not be
as aware as an immigration judge of available probative evidence from
credible sources of country conditions, receive due process and full
consideration of their claims. This provision of the rule is consistent
with an immigration judge's regulatory directive to ``take any action
consistent with their authorities under the Act and regulations that is
appropriate and necessary for the disposition of [individual cases
before them],'' 8 CFR 1003.10(b); see also 85 FR at 59695, and the
immigration judge's unique role to ensure full consideration of all
relevant evidence and full development of the record for cases
involving a pro se respondent, see Matter of S-M-J-, 21 I&N Dec. at 729
(noting that ``various guidelines for asylum adjudicators recommend the
introduction of evidence by the adjudicator'').
Commenters' concerns that, under this rule, parties would not have
the opportunity to respond to evidence that the immigration judge
submits, are plainly refuted by the regulatory language, which requires
that the parties ``have had an opportunity to comment on or object to
the evidence prior to the issuance of the immigration judge's
decision.'' 8 CFR 1208.12(a). Additionally, the Department has
previously explained that requiring the immigration judge to provide a
copy of submitted evidence to both parties was specifically intended to
``give the parties an opportunity to respond to or address the
information appropriately.'' 85 FR at 59695.\64\
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\64\ The NPRM declined to propose a bright line rule for
precisely how a party may have an opportunity to comment on the
evidence because the reasonableness of a party's opportunity to
comment will vary based on the overall context of the case and the
nature of the evidence the immigration judge proposes to submit. For
example, if the record already contains thousands of pages of
country conditions evidence submitted by attorneys for both parties
and the immigration judge merely submits the most recent State
Department Country Report on Human Rights Practices that the parties
simply forgot to submit, the opportunity to comment should not be
lengthy. In contrast, if an immigration judge submits hundreds of
pages of country conditions evidence in a proceeding involving a pro
se alien who does not speak English, then a continuance may be
warranted to allow the alien an opportunity to comment on the
evidence. The Department recognizes that the nature of the
opportunity to comment will vary from case to case based on the
particular facts of each case, and it expects immigration judges to
address such situations consistent with applicable laws and
policies.
---------------------------------------------------------------------------
The Department disagrees with commenters' concerns that immigration
judges would be unable to adequately address objections to evidence
that they submit. Immigration judges have been hired based upon their
merit and receive ``comprehensive, continuing training and support''
directed at ``promot[ing] the quality and consistency of
adjudications.'' 8 CFR 1003.0(b)(1)(vii). The Department believes that
immigration judges are well-equipped to address any arguments raised
with respect to evidence that they submit, including how to weigh that
evidence against all other evidence of record and, if appropriate,
acknowledging successful challenges to its admission.
Further, parties will have the opportunity to object to the
evidence, and the Department expects that if parties have an objection,
they will make it contemporaneously when the immigration judge submits
the evidence in order to preserve the issue for appeal. The Department
believes that existing appellate procedures would mitigate commenter
concerns, though unfounded as an initial matter, that immigration
judges may be unwilling to fairly consider objections to evidence that
they submitted or that parties may not have sufficient time to respond
to such evidence.
With respect to commenter concerns that non-English speakers may
not be able to understand English documents that the immigration judge
may choose to submit into the record, the Department notes that there
is no existing requirement for immigration judges to translate
documents submitted into evidence into an alien's native language when
developing the record. See Matter of S-M-J-, 21 I&N Dec. at 727
(observing that ``if background information is central to an alien's
claim, and the Immigration Judge relies on the country conditions in
adjudicating the alien's case, the source of the Immigration Judge's
knowledge of the particular country must be made
[[Page 81741]]
part of the record'' but nowhere requiring that such information be
submitted in the alien's native language). Further, most commenters
failed to acknowledge that all evidence submitted in an immigration
hearing, regardless of who submits it, is to be submitted in English or
with an English translation. 8 CFR 1003.33.\65\ Additionally, nothing
in the statute or regulations requires that evidence of record be
written or explained in the respondent's native language. Cf. Singh v.
Holder, 749 F.3d 622, 626 (7th Cir. 2014) (``[i]n the immigration
context, personal service in English to a non-English-speaker typically
satisfies due process because it puts the alien on notice that further
inquiry is needed, leaving the alien to seek help from someone who can
overcome the language barrier.'''); Ojeda-Calderon v. Holder, 726 F.3d
669, 675 (5th Cir. 2013) (``Due process allows notice of a hearing to
be given solely in English to a non-English speaker if the notice would
put a reasonable recipient on notice that further inquiry is
required.''). Finally, as discussed supra, and notwithstanding the
longstanding rule that evidence must be submitted in English or with a
certified translation, the Department also expects immigration judges
to account for an alien's native language when considering what
opportunity to provide to the alien to respond to evidence submitted by
an immigration judge, particularly for the small minority of aliens who
are pro se.\66\
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\65\ The Department notes that there is no existing requirement
that evidence submitted by DHS be translated into an alien's native
language or even that an alien's representative translate all
evidence submitted on the alien's behalf into the alien's native
language.
\66\ The Department notes that the State Department Country
Reports on Human Rights Practices, which are the most common
evidence submitted by immigration judges, are available in multiple
languages, including Spanish. See, Department of State, 2019 Country
Reports on Human Rights Practices Translations, available at https://www.state.gov/2019-country-reports-on-human-rights-practices-translations/ (last visited Nov. 20, 2020). Nothing in this rule
precludes an immigration judge from providing a translated copy of
the Country Report to an alien in addition to the English-language
version.
---------------------------------------------------------------------------
The Department disagrees with comments alleging that the rule is
inconsistent with section 240(b)(1) of the Act, 8 U.S.C. 1229a(b)(1),
which provides that ``[i]mmigration judges shall administer oaths,
receive evidence, and interrogate, examine, and cross-examine the alien
and any witnesses,'' and commenters did not reconcile their
interpretation of that provision with case law allowing, if not also
requiring, immigration judges to submit evidence in order to develop
the record, see 85 FR at 59695 (collecting cases). As commenters noted,
the statute does not explicitly direct immigration judges to submit
evidence into the record, but it does not purport to represent the
complete and exclusive scope of immigration judge authority with regard
to proceedings. Further, the Department disagrees with commenters that
the amendments to the statutory language from ``present and receive
evidence'' to simply ``receive evidence'' indicate a prohibition on the
ability of immigration judges to introduce evidence, given the
continued duty of immigration judges to develop the record. See
Constanza-Martinez v. Holder, 739 F.3d at 1102 (``The parties agree it
is unclear why `present' was removed from the INA. Even so, IJs
maintain an affirmative duty to develop the record.'').\67\
---------------------------------------------------------------------------
\67\ See also 8 CFR 1003.10(b) (``In deciding the individual
cases before them, . . . immigration judges shall exercise their
independent judgment and discretion and may take any action
consistent with their authorities under the Act and regulations that
is appropriate and necessary for the disposition of such cases.'');
8 CFR 1003.36 (``The Immigration Court shall create and control the
Record of Proceeding.''); Yang v. McElroy, 277 F.3d 158, 162 (2d
Cir. 2002) (per curiam) (``[T]he IJ whose decision the Board
reviews, unlike an Article III judge, is not merely the fact finder
and adjudicator but also has an obligation to establish the
record.''); Richardson v. Perales, 402 U.S. 389, 410 (1971) (finding
that an administrative law judge ``acts as an examiner charged with
developing the facts''); Charles H. Koch, Jr. & Richard Murphy,
Administrative Law and Practice Sec. 5.25 (3d ed. 2020) (noting
that ``[t]he administrative judge is pivotal to the fact-finding
function of an evidentiary hearing and hence, unlike the trial
judge, an administrative judge has a well-established affirmative
duty to develop the record''); Matter of S-M-J-, 21 I&N Dec. at 729
(noting that ``various guidelines for asylum adjudicators recommend
the introduction of evidence by the adjudicator'').
---------------------------------------------------------------------------
Commenters' concerns that the regulations do not allow immigration
judges to submit evidence into the record need not be addressed because
this rule, enacted through the appropriate APA procedures, amends the
Department's regulations to specifically authorize immigration judges
to do so. Moreover, as discussed, supra, ample case law already
provides a basis, independent of regulatory one, for immigration judges
to submit evidence. And, as also discussed elsewhere, the Department
does not believe that this rule would undermine the neutrality of
immigration judges and accordingly rejects commenters' arguments that
this rule conflicts with the regulations requiring immigration judges
to act with impartiality.
The Department disagrees with commenter's concerns that this
rulemaking will overburden immigration judges and exacerbate docket-
management issues. To the contrary, this rule empowers immigration
judges with additional tools to resolve the cases before them based on
a full and complete record. It does not mandate immigration judges
introduce evidence in any case or otherwise require additional work if
an immigration judge determines it is not needed or would be
inefficient in a particular case.
Commenters made a number of recommendations regarding changes or
alternatives to this provision of the rule, including incorporating a
checklist for immigration judges to follow to prevent bias in assessing
country conditions evidence; altering the rule so that immigration
judges do not submit evidence themselves but instead suggest to the
parties the inclusion of evidence, such as country conditions evidence
from the EOIR database, they would like to consider; or only permitting
immigration judges to submit evidence that is favorable to the alien.
The Department appreciates the recommendations submitted by commenters,
but each one is problematic, and none is preferable to the rule.
For example, the suggestion for a checklist is premised on the
assertion that immigration judges may be biased, but as discussed
previously, that assertion is wholly unfounded. Moreover, immigration
judges are well-versed in assessing the admissibility and weight of
evidence, and there is no indication that a checklist would aid them in
that regard. Suggesting that the parties introduce particular evidence,
rather than allowing the immigration judge to introduce it, would not
aid pro se aliens who may lack the resources or access to print tens or
hundreds of pages of country conditions reports. Finally, the
suggestion that immigration judges only submit evidence favorable to
aliens would be anathema to an immigration judge's role as a neutral
adjudicator and would violate both an immigration judge's ethical and
professional responsibility obligations, see Ethics and Professionalism
Guide for Immigration Judges, sec. V (Jan. 26, 2011), available at
https://www.justice.gov/eoir/sibpages/IJConduct/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.''); see also 5 CFR 2635.101(b)(8) (``[Immigration judges] shall
act impartially and not give preferential treatment to any private
organization or individual.''), and an immigration
[[Page 81742]]
judge's regulatory duty of impartiality, 8 CFR 1003.10(b) (``In all
cases, immigration judges shall seek to resolve the questions before
them in a timely and impartial manner'').
The Department also disagrees with commenters' concerns that this
provision of the rule conflicts with recent rules proposed--and now
finalized--by the Department, specifically those (1) limiting EOIR
adjudicators' sua sponte authority, 85 FR 52491 (``The Board shall not
sua sponte remand a case unless the basis for such a remand is solely a
question of jurisdiction over an application or the proceedings.'')
(proposed)), and (2) barring admissibility of stereotype evidence, 85
FR 36264.
Regarding stereotype evidence, the Department proposed to exclude
the admission of pernicious, unfounded evidence that is predicated upon
harmful stereotypes from being entered into the record, 85 FR at 36282;
cf. Matter of A-B-, 27 I&N Dec. at 336 n.9, and finalized that proposal
with some minor, non-substantive edits for clarity in response to
commenters' concerns, Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review, signed by the Attorney
General and the Acting Secretary of Homeland Security on December 2,
2020. Nothing in this rule would encourage immigration judges to submit
pernicious, unfounded evidence that is predicated upon harmful
stereotypes. As plainly noted in the regulation, evidence submitted by
an immigration judge must be ``relevant . . . if the source is credible
and the evidence is probative,'' see 8 CFR 1208.12(a), and evidence of
pernicious stereotypes about a country would not meet those criteria.
Commenters' concerns with respect to EOIR adjudicators' sua sponte
authority is unrelated to this rulemaking. Indeed, the rule focuses on
the adjudication of asylum applications in pending cases, whereas sua
sponte authority is used to reopen a case in which a decision has
already been rendered. Nothing in the present rule interacts with or is
connected to the Department's proposal to limit the Attorney General's
delegation of sua sponte authority to EOIR adjudicators.
b. Asylum Adjudication Clock
Comment: Commenters stated that, despite recognizing the statutory
180-day asylum adjudication deadline in the Act, INA 208(d)(5)(A)(iii),
8 U.S.C. 1158(d)(5)(A)(iii), it was unreasonable for the Department to
implement this regulation due to the significant number of pending
cases at EOIR. Commenters explained that requiring asylum applications
to be completed within 180 days would not allow attorneys and aliens
sufficient time to prepare cases for adjudication, would require
immigration judges to unfairly delay non-asylum cases on their dockets,
would strip immigration judges of the ability to manage their dockets,
would prevent asylum seekers from fully presenting their cases due to a
lack of individual hearing slots, would result in a significant number
of suddenly advanced hearings, would lessen the ability of asylum
seekers to obtain counsel, and would cause unsuccessful applicants to
be removed before pending ancillary relief with USCIS could be
adjudicated.
Commenters claimed that Congress's use of the word ``shall'' when
discussing the 180-day asylum adjudication deadline was permissive
rather than mandatory and, therefore, EOIR should not issue regulations
indicating a mandatory deadline.
Commenters also raised concerns about the 180-day asylum
adjudication deadline's effect on child asylum applicants. Commenters
stated that child applicants face unique challenges in presenting their
claims and are deserving of enhanced procedural protections, such as an
exception to the adjudication deadline. In addition, commenters
questioned whether the 180-day adjudication deadline would apply to
USCIS's initial adjudication of asylum applications filed by UAC.
Commenters were separately concerned about the 180-day asylum
adjudication deadline and its effect on work authorization. Commenters
stated that the rule would prevent asylum seekers from obtaining work
authorization, particularly in light of recent DHS regulatory changes
increasing the minimum wait time, which would result in the inability
of asylum seekers to afford representation.\68\ Commenters recommended
that the Department replace 8 CFR 1208.7 with language clarifying
EOIR's role in the work authorization process rather than remove and
reserve the section entirely, which would remove guidance for the
parties and the court from the regulations.
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\68\ This provision is currently subject to a preliminary
injunction in Casa de Maryland v. Wolf, No. 8:20-cv-02118-PX (D. Md.
Sept. 11, 2020), appeal docketed, No. 20-2217 (4th Cir. Nov. 12,
2020).
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Response: The Department reiterates its response to similar
comments, supra, and adds the following further response. To the extent
that commenters disagreed with the general existence of a 180-day
adjudication deadline for asylum applications absent exceptional
circumstances, the Department notes that deadline is established by
statute, INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii), and cannot
be altered by rulemaking. Accordingly, such concerns are beyond the
scope of this rulemaking and the Department's rulemaking authority and
therefore more appropriately addressed to Congress.
Specifically, as commenters recognize, adjudicating asylum
applications within 180 days of filing is a statutory requirement set
by Congress. See INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii).
Therefore, issuing regulations to implement this requirement
effectuates congressional intent that asylum applications be promptly
adjudicated.\69\ Complaints that the Department should not issue
regulations implementing this deadline because immigration courts are
overburdened is not a valid reason to simply ignore congressional
mandates. Rather, ensuring that asylum applications are adjudicated
within a 180-day timeframe will help to decrease immigration court
backlogs and ensure that asylum applicants are not forced to wait in
limbo in the United States for extended periods of time to receive a
determination on their applications.
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\69\ To the extent commenters assert that the Department failed
to previously adhere to the law regarding this adjudication period,
the Department acknowledges a lack of prior diligence in maintaining
compliance. Nevertheless, there is no reason to continue to ignore a
clear statutory directive, and the Department has maintained a
policy that seeks to comply with that directive for more than two
years. EOIR Policy Memorandum 19-05, Guidance Regarding the
Adjudication of Asylum Applications Consistent with INA Sec.
208(d)(5)(A)(iii) (Nov. 19, 2018), available at https://www.justice.gov/eoir/page/file/1112581/download. This rule will
bolster that policy and further emphasize the importance of adhering
to statutory directives.
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With regard to commenters' concerns about the effect of the 180-day
asylum adjudication deadline on the ability of asylum seekers to obtain
counsel and prepare their case, the Department again notes that
Congress set the 180-day deadline. See INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii). By implementing this provision, Congress
necessarily expressed their belief that 180 days is a reasonable time
period for asylum seekers to prepare and present their case once they
have filed their application. In addition, the Department emphasizes
that this 180-day adjudication period does not begin until the asylum
application is filed and not from when DHS serves the alien with a
charging document or at some other earlier point in the proceeding.
Once the
[[Page 81743]]
asylum application is filed, applicants and their attorneys would have
additional time within the 180 days to obtain any additional necessary
supporting evidence and to prepare for any hearings on the application,
which the Department believes is a reasonable time period, as reflected
by the congressional enactment.
The Department disagrees with commenters that this rule will
prevent immigration judges from managing their dockets or providing
sufficient hearing time to asylum applicants or that it will result in
the unfair delay of non-asylum cases. As an initial point, immigration
judge authority is circumscribed by both the Act and applicable
regulations. 8 CFR 1003.10(b) (providing that ``immigration judges . .
. may take any action consistent with their authorities under the Act
and regulations that is appropriate and necessary for the disposition
of such cases'') (emphasis added)), 1240.1(a)(1)(iv) (providing that
immigration judges have the authority in removal proceedings ``[t]o
take any other action consistent with applicable law and regulations as
may be appropriate'') (emphasis added)). Thus, the codification of a
statutory requirement in the Act in applicable regulations does not
alter the pre-existing limits on an immigration judge's authority.
Further, this rule makes no changes to immigration judges' authority to
manage their dockets, and commenters have not adequately explained how
implementing a statutorily-required adjudication deadline, which
immigration judges are already expected to follow as a matter of both
law and policy would alter this authority. See 8 CFR 1003.10(b). The
Department has no concerns that immigration judges will fail to provide
sufficient hearing time to asylum applicants as necessary to the
adjudication of the application. See, e.g., INA 240(b)(1), 8 U.S.C.
1229a(b)(1) (providing immigration judges with authority to ``receive
evidence, and interrogate, examine, and cross-examine the alien and any
witnesses''); 8 CFR 1240.11(c)(3) (requiring a hearing on an asylum
application only ``to resolve factual issues in dispute'').
In regard to commenters' concerns that adjudicating asylum
applications within the statutorily-mandated timeframe will prevent
immigration judges from adjudicating other cases, the Department notes
that this rule does not prioritize any application or case over
another. Rather, the rule merely implements a statutorily-mandated
adjudication deadline for asylum applications. To the extent that
implementing this deadline may affect the adjudication of other cases,
the Department believes that the timely adjudication of asylum
applications will help to reduce the immigration court backlog, thereby
allowing immigration judges to more quickly adjudicate the cases before
them.
Regarding concerns about EOIR advancing hearings, the Department
notes that such concerns are speculative, particularly in the current
operational environment in which many hearings are postponed due to the
outbreak of COVID-19. Nevertheless, there is no reason to expect this
rule to result in an overwhelming number of advanced hearings once
EOIR's operating posture returns to normal, as most immigration judges
already have a significant number of deadline-eligible asylum
applications pending on their immediate dockets. And, in the event that
an immigration judge does choose to advance a case, practitioners can
request a continuance as appropriate, 8 CFR 1003.29, although as the
Department has discussed, supra, it is not clear why aliens with valid
asylum claims would desire further delay in the adjudication of their
case.
The Department also disagrees with commenters that this provision
raises due process concerns. In immigration proceedings, due process
concerns are only implicated if proceedings are ``so fundamentally
unfair that the alien was prevented from reasonably presenting his
case.'' Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011)
(citations omitted). Requiring asylum applications to be adjudicated
within 180 days of filing, as explicitly required by statute, does not
itself make proceedings fundamentally unfair or prevent an alien from
exercising the statutory right to present evidence. See INA
240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B). For example, detained applicants
routinely have their applications adjudicated within 180 days without
apparent due process concerns stemming from this timeframe.
In regard to concerns about the asylum adjudication deadline and
its effect on pending non-asylum applications with USCIS, the
Department notes that this rule does not make any changes for non-
asylum applications, including those pending with USCIS. Moreover, a
separate pending application with USCIS does not prevent the
immigration court from proceeding on the asylum application to ensure
its timely adjudication. In addition, once the immigration court has
timely adjudicated the asylum application, this rule does not prohibit
applicants from requesting a continuance under the ``good cause''
standard or working with DHS counsel to file a motion to dismiss based
on a pending application with USCIS. See 8 CFR 1003.29, 1239.2(c).
The Department understands and has considered the comments related
to UAC but finds them either largely inapplicable to the rule,
insufficiently persuasive, or outweighed by the rule's benefits to
warrant changing the rule. First, the timeframes applied by USCIS to
adjudicating asylum applications filed by genuine UAC are beyond the
scope of this rulemaking because USCIS is a DHS component, and the
Department offers no opinion regarding USCIS's views on section
208(d)(5)(A)(iii) of the Act, 8 U.S.C. 1158(d)(5)(A)(iii). Second, for
purposes of immigration judge adjudication, the provisions of section
208(d)(5)(A)(iii) of the Act, 8 U.S.C. 1158(d)(5)(A)(iii), apply to
``final administrative adjudication of the asylum application, not
including administrative appeal'' and, thus, would only become
applicable to the asylum application filed by a UAC in removal
proceedings after that application has been returned by USCIS back to
the immigration court following USCIS's decision not to grant it. In
other words, the 180-day adjudication deadline in immigration
proceedings for an asylum application filed by a UAC in removal
proceedings would not be triggered until after USCIS has made its
initial determination on that application under section 208(b)(3)(C) of
the Act, 8 U.S.C. 1158(b)(3)(C). Moreover, nothing in this rule affects
USCIS's initial adjudication of asylum applications filed by UAC. Id.
Significantly, Congress did not exempt UAC asylum applications from
the provisions of section 208(d)(5)(A)(iii) of the Act, 8 U.S.C.
1158(d)(5)(A)(iii), as it did for other provisions. Compare INA
208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E) (exempting UAC asylum applications
from limitations imposed by asylum cooperative agreements and the one-
year filing deadline). This evinces congressional judgment that all
asylum applicants should have their applications adjudicated within 180
days of filing, regardless of the applicant's individual
characteristics or status. This also makes particular sense for UAC
asylum applications, as USCIS will already have adjudicated their
asylum application, and the child applicant will only be renewing that
application with EOIR, as opposed to submitting an entirely new claim.
In short, the Department has fully considered the issues raised by
commenters pertaining to UAC. As noted, most of the concerns reflect a
[[Page 81744]]
misapprehension of the rule's contents, are directed at statutory
provisions that cannot be changed by rulemaking, or confuse
adjudications by the Department with those by USCIS. The Department is
aware of the special circumstances and needs of genuine UAC and
maintains clear policies to ensure that their cases are adjudicated
efficiently and consistent with due process. See EOIR, Operating
Policies and Procedures Memorandum 17-03: Guidelines for Immigration
Court Cases Involving Juveniles, Including Unaccompanied Alien Children
(Dec. 20, 2017), available at.gov/eoir/file/oppm17-03/download. Nothing
in the rule alters those policies, and the Department finds that the
rule will not have any greater effect on UAC than on any other group of
aliens. If anything, the rule will have minimal to no effect on UAC
because they are unlikely to fall within the classes of aliens in 8 CFR
1208.2(c) and their asylum applications are subject to INA
208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii), regardless of this
rule. Accordingly, on balance, commenters' assertions regarding the
rule's impact on UAC are unfounded and ultimately unpersuasive.
In response to commenters' concerns about this rule's effect on the
ability of aliens to receive work authorization, particularly in light
of recent DHS regulatory changes, the Department notes that Congress
explicitly intended for asylum applications to be adjudicated before
the asylum seeker is eligible for work authorization. Compare INA
208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii) (requiring adjudication
of asylum applications within 180 days of filing), with INA 208(d)(2),
8 U.S.C. 1158(d)(2) (permitting work authorization only after a minimum
of 180 days has elapsed from the filing of an asylum application). In
this manner, eligibility for worth authorization is meant to be the
exception for aliens whose cases exceed the reasonable period of time
for adjudication, as set by Congress, but not the standard or
expectation for asylum seekers as a matter of course.
Relatedly, and contrary to commenters' assertions, this rule does
not interfere with an asylum seeker's statutory right to
representation, INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A), due to an
inability to receive work authorization and thus afford an attorney.
Rather, aliens who are unable to afford fee-based counsel may seek pro
bono representation or avail themselves of other programs to obtain
information to prepare their cases. Moreover, as noted supra, this
statutory provision has been in effect for more than 20 years, and the
current representation rate of 85% strongly suggests it has not
impacted an alien's ability to obtain representation.
Lastly, the Department considered the commenters' suggestion that,
rather than remove and reserve existing 8 CFR 1208.7, the Department
should amend 8 CFR 1208.7 with clarified regulatory language regarding
EOIR's role related to work authorization. After consideration, the
Department continues to believe that regulatory language regarding work
authorization is better located solely within DHS's regulations because
DHS has sole authority over work authorization. Further, as discussed
in the NPRM, removing and reserving 8 CFR 1208.7 would avoid any
potential future conflict should DHS amend 8 CFR 208.7. See 85 FR at
59695. In short, EOIR plays no part in adjudicating applications for
alien EADs, and there is no reason to maintain vestigial regulations
related to a process in which EOIR has no role.\70\
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\70\ The Department notes that retaining 8 CFR 1208.7 would have
no effect on EOIR operations--other than risking confusion by the
parties regarding which agency is responsible for adjudicating an
EAD application--because its previous provisions simply do not apply
to EOIR. To the contrary, EOIR already excludes applicant-caused
delays that meet the exceptional circumstances standard from
calculating the statutory 180-day asylum adjudication clock as noted
in 8 CFR 1208.7(a)(2). See EOIR Policy Memorandum 19-05, Guidance
Regarding the Adjudication of Asylum Applications Consistent with
INA Sec. 208(d)(5)(A)(iii) at 2-3 (Nov. 19, 2018) (``But, absent
delays that qualify as exceptional circumstances, 8 CFR 1208.7(a)(2)
does not relieve Immigration Judges of their obligation to
adjudicate asylum claims within 180 days.''), https://www.justice.gov/eoir/page/file/1112581/download. Further, although
EOIR provides DHS with access to a separate ``clock'' for purposes
of adjudicating EAD applications, EOIR does not adjudicate EAD
applications themselves and, thus, does not interpret the time
period related to EAD applications in INA 208(d)(2), 8 U.S.C.
1158(d)(2). Accordingly, although retention of 8 CFR 1208.7 would
not alter EOIR's existing processes, its superfluousness and the
risk of confusion related to maintaining it regarding which agency
is responsible for adjudicating EAD applications militate strongly
in favor of removing it.
---------------------------------------------------------------------------
Comment: Commenters were opposed to the rule's ``exceptional
circumstances'' definition, stating that there are many situations that
may not rise to the level of exceptional circumstances as defined in
the rule but nevertheless should be sufficient to grant additional time
beyond 180 days. As examples, commenters pointed to asylum seekers
requiring mental health services before they can fully discuss their
asylum claim or the need to obtain corroborating evidence from their
home countries. Commenters stated that the definition as drafted would
result in increased appeals and remands. Similarly, commenters stated
that the Department should not mirror the statutory ``exceptional
circumstances'' definition in section 240(e)(5) of the Act, 8 U.S.C.
1229a(e)(5), because failing to appear at a hearing has different
equities than needing more time to support an asylum application.
Commenters also stated that the exceptional circumstances requirement
should apply to DHS attorneys and the immigration judge as well. One
commenter likewise requested that the Department modify the final rule
to explicitly include immigration judge requests for Department of
State comments to qualify as an exceptional circumstance.
Response: In regard to concerns with the ``exceptional
circumstances'' standard, the Department first notes that Congress
mandated this standard. See INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii). The Department has reasonably chosen to interpret
this language in accordance with its explicit definition elsewhere in
the statute to ensure consistency within the statute and the long-held
definition used by parties and the courts. See INA 240(e)(1), 8 U.S.C.
1229a(e)(1). The Department acknowledges commenters' concerns that
there may be circumstances in which an alien may not meet the standard,
but that is true of any standard. Congress provided an undefined
standard in the Act, and the Department has determined that an existing
statutory definition elsewhere in that statute is a reasonable
interpretation of a phrase connoting circumstances that are generally
considered ``severe impediments.'' See Chevron, 467 U.S at 844
(requiring deference to an agency's reasonable interpretation of an
ambiguous statute); see also Singh-Bhathal v. INS, 170 F.3d 943, 947
(9th Cir. 1999) (interpreting exceptional circumstances to involve
``severe impediment[s]''). Commenters have not provided support for the
contention that implementing such a definition will result in increased
appeals or remands or explained why the Department should not adopt a
compelling existing statutory definition, particularly one that
comports with common-sense notions of ``exceptional circumstances.''
The Department declines to create any specific exceptions to the
definition, and it recognizes that no rule can cover every possible
factual scenario, particularly when considering the existence of more
than 500,000 pending asylum applications currently. See Executive
Office for Immigration Review, Adjudication Statistics: Total Asylum
Applications (Oct. 13, 2020),
[[Page 81745]]
available at https://www.justice.gov/eoir/page/file/1106366/download.
Thus, although the Department has considered commenters' suggestion to
list Department of State comment requests as constituting an
extraordinary circumstance, see 8 CFR 1208.11, the Department declines
to provide that specific exception. Rather, the Department will allow
immigration judges, who are better positioned to evaluate the specific
facts in each case, to make a case-by-case determination on whether
extraordinary circumstances exist. See, e.g., Arredondo v. Lynch, 824
F.3d 801, 805 (9th Cir. 2016) (explaining that, in the failure to
appear context, the court must look to the particularized facts in each
case when determining whether exceptional circumstances exist).
Similarly, in a vacuum, the Department cannot respond to
commenters' generalized statements about various proposed exceptions
because asylum applications are adjudicated based on their specific
facts, not on generalized speculative assertions or extrapolations. For
example, a commenter's suggestion that a need for mental health
services is an exceptional circumstance may be true in some cases
because it may be indicative of ``serious illness of the alien;''
however, unmoored from any larger context, the Department cannot say
that it would be exceptional in all cases, particularly if it is
unrelated to the claim at issue.\71\ Further, some aliens with valid
claims who are receiving mental health treatment may not wish to use
that treatment as a basis to delay adjudication of their case because
they seek to obtain relief as quickly as possible. The Department
cannot make a blanket determination based solely on generalizations
without context that such situations will always constitute an
exceptional circumstance because each case is different and considered
on its own merits. Moreover, the credibility of such assertions will
always be at issue because they provide an exception to the general
rule, and it is difficult, if not impossible, for the Department to
make generalized credibility determinations in a rulemaking. Rather,
the Department believes that the definition established by the rule is
appropriate and determinations regarding which facts may meet the
standard are more appropriately made on a case-by-case basis by an
immigration judge.
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\71\ For instance, the Department notes that individuals may
receive treatment for a variety of mental health conditions--e.g.,
obstructive sleep apnea hypopnea; caffeine intoxication; tobacco
withdrawal; gambling disorders--that are not normally associated
with grounds for asylum and would ordinarily not be considered
exceptional circumstances. See American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (5th
ed. 2013).
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Finally, in response to other commenters' concerns, the Department
notes that the definition of exceptional circumstances is not limited
to circumstances faced by aliens. Although the rule provides examples
of exceptional circumstances that may affect the alien, which the
Department excepts will be the most common situation, the rule
explicitly states that exceptional circumstances are those ``beyond the
control of the parties or the immigration court.'' 8 CFR 1003.10(b)
(final rule) (emphasis added). Consequently, exceptional circumstances
may involve those affecting DHS, an immigration judge, or the alien.
6. Retroactivity
Comment: Several commenters were concerned with the rule's silence
on the issue of retroactive applicability. Commenters asserted that the
rule should not apply to anyone whose latest entry into the United
States was prior to the rule's effective date or to any case where an
NTA has been filed. Commenters also urged the Department to explicitly
specify that the rule does not have any retroactive effect or, in the
alternative, specifically identify the individuals and claims to which
the rule would apply.
Commenters believed that applying the rule retroactively would
create waste, uncertainty, and inefficiency in the immigration court
system and overburden DHS. For example, commenters stated that DHS
trial attorneys, immigration judges, court staff, and asylum officers
would be immediately overwhelmed if they were forced to adjudicate all
current pending cases within the rule's 180-day timeframe. Moreover,
commenters noted that work may need to be repeated to conform to the
rule's new evidentiary standards. Commenters raised concerns that court
staff would have to spend an inordinate amount of unnecessary hours
going through recently submitted I-589 forms that have not yet been
deemed complete to see whether every box is filled.
Moreover, commenters claimed that thousands of asylum seekers have
relied on and structured their lives around the current asylum system
and would be seriously harmed if the rule was applied retroactively.
For example, commenters pointed out that many asylum seekers have spent
significant amounts of money on legal representation to prepare and
file asylum applications that, according to commenters, would be
unprovable if the rule is applied retroactively. Furthermore,
commenters asserted that asylum seekers likely would have made
different decisions when pursuing immigration relief had they known the
rules would change before their claims were adjudicated. Commenters
stated that the Department failed to adequately consider such reliance
interests on the current legal structure. Several commenters were also
specifically concerned with the impact that retroactivity would have on
pro se asylum seekers.
Furthermore, commenters stated that applying the rule retroactively
would violate both the APA and aliens' due process rights. In addition,
commenters asserted that the rule's retroactive application would
conflict with congressional intent.
Other commenters questioned whether the 180-day asylum adjudication
deadline provisions apply retroactively to pending cases. Commenters
stated that the rule would create difficulties if applied retroactively
because large numbers of pending cases would need to be advanced at the
same time. Alternatively, commenters stated that prospective
application of the rule would result in existing cases being
indefinitely delayed as new asylum applications are required to be
adjudicated within 180 days of filing.
Response: The Department recognizes that the potential
retroactivity of the rule was not clear in the NPRM. To the extent that
the rule changes any existing law, the Department intends to apply it
prospectively to apply to all asylum applications--as well as
applications for statutory withholding of removal and protection under
the CAT regulations where applicable--that are filed \72\ on or after
the rule's effective date and, for purposes of the 15-day filing
deadline, to all proceedings initiated under 8 CFR 1208.2(c) on or
after the rule's effective date.
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\72\ For purposes of the 30-day correction period for an
incomplete or deficient asylum application, this rule will apply to
any asylum application that is attempted to be filed on or after the
effective date.
---------------------------------------------------------------------------
To the extent that the rule merely codifies existing law or
authority, however, it will apply to pending cases. For example, the
provisions of the rule incorporating section 208(d)(5)(A)(iii) of the
Act, 8 U.S.C. 1158(d)(5)(A)(iii), into the regulations are simply
adoptions of existing law. In fact, as statutory provisions in effect
for decades, the Department has already been applying them to asylum
cases, independently of
[[Page 81746]]
the rule.\73\ Accordingly, they do not have an impermissible
retroactive effect applied to pending cases. See Sterling Holding Co.,
LLC, 544 F.3d at 506 (``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)).
---------------------------------------------------------------------------
\73\ The Department recognizes that the precise regulatory
definition of ``exceptional circumstances'' in 8 CFR 1003.10(b) for
purposes of section 208(d)(5)(A)(iii) of the Act, 8 U.S.C.
1158(d)(5)(A)(iii), is new. Accordingly, that precise definition
will apply only to asylum applications filed on or after the
effective date of the rule, even though the provisions of section
208(d)(5)(A)(iii) of the Act, 8 U.S.C. 1158(d)(5)(A)(iii), continue
to apply to all asylum applications currently pending that were
filed on or after April 1, 1997.
---------------------------------------------------------------------------
Similarly, the dictates of Matter of S-M-J- and applicable case
law, e.g., 85 FR at 59695, regarding an immigration judge's authority
to submit evidence and develop the record are pre-existing authorities
that are merely incorporated into the regulations by this rule.
Accordingly, the provisions incorporating that authority also apply to
pending cases. In fact, as with section 208(d)(5)(A)(iii) of the Act, 8
U.S.C. 1158(d)(5)(A)(iii), the Department has already been applying
these principles to asylum cases independently of this rule.
Otherwise, the Department declines to adopt commenters' assertions
about potential implications of the rule's application to pending cases
because those comments are wholly speculative due to the case-by-case
and fact-intensive nature of many asylum adjudications. See Home Box
Office, 567 F.2d at 35 n.58 (``In determining what points are
significant, the `arbitrary and capricious' standard of review must be
kept in mind . . . Moreover, comments which themselves are purely
speculative and do not disclose the factual or policy basis on which
they rest require no response. There must be some basis for thinking a
position taken in opposition to the agency is true.''). Moreover, as
noted, the Department is applying much of the rule prospectively, and
the provisions that are not prospective are already applicable to
pending cases through either the Act itself or binding precedent. Thus,
the alleged underlying factual premise of the commenters' concerns is
erroneous.
7. Miscellaneous
a. Independent Immigration Courts
Comment: Commenters generally expressed concerns that the rule
undermines the independence of the immigration courts from political or
other inappropriate influence. At least one commenter stated that the
rule highlighted the need for the immigration courts and immigration
judges to be ``independent'' and outside the executive branch.
Response: These commenters' recommendations are both beyond the
scope of this rulemaking and the Department's authority. Congress has
provided for a system of administrative hearings for immigration cases,
and the Department believes that system should be maintained. See
generally INA 240, 8 U.S.C. 1229a (establishing administrative
procedures for removal proceedings); 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.
1 (2018) (written response to Questions for the Record of James
McHenry, Director, Executive Office for Immigration Review) (``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.''). Only Congress has the authority to
create a new Article I court or other framework for the adjudication of
immigration cases.
Moreover, the Department reiterates that immigration judges already
exercise ``independent judgment and discretion'' in deciding cases, 8
CFR 1003.10(b), and are prohibited from considering political
influences in their decision-making, Ethics and Professionalism Guide
for Immigration Judges, sec. VIII (``An Immigration Judge should not be
swayed by partisan interests or public clamor.'') (Jan. 26, 2011).
Thus, contrary to commenters' assertions, immigration judges are
already independent adjudicators who do not render decisions based on
political influence or political interests. As commenters' claims are
unfounded in law or practice and well beyond the scope of this
rulemaking, the Department declines to base revisions to the rule on
them.
b. Requests for Data
Comment: Multiple commenters included specific requests for further
information or data points together with their comments. For example,
one commenter requested, inter alia, the ``[n]umber of successful
asylum claims as a percentage of total asylum claims filed, broken down
by immigration court, broken down by represented v. pro se
applicants.''
Response: The Department believes that it is has provided the
relevant needed justifications and explanations for this rule in both
the preamble to the proposed rule and the discussion above. To the
extent commenters seek further specific information, the Department
first notes that raw data from EOIR's case management database is
available online, EOIR, FOIA Library: EOIR Case Data (Nov. 12, 2020),
available at https://www.justice.gov/eoir/foia-library-0, and that EOIR
maintains a number of publicly-available statistics and reports,
including those related to asylum applications, see EOIR, EOIR Workload
and Adjudication Statistics (Oct. 30, 2020), available at https://www.justice.gov/eoir/workload-and-adjudication-statistics. The
Department also reminds commenters of the ability to submit requests to
the Department pursuant to the Freedom of Information Act (FOIA). Such
requests should be submitted to the EOIR Office of General Counsel:
U.S. Department of Justice, Executive Office for Immigration Review,
Office of General Counsel--FOIA Service Center, 5107 Leesburg Pike,
Suite 2150, Falls Church, VA 22041; Email address:
[email protected]; FOIA Public Liaison: Crystal Souza;
Telephone: 703-605-1297.
Further information regarding EOIR's FOIA request procedures is
available on the EOIR website at: https://www.justice.gov/eoir/freedom-information-act-foia.
8. Concerns With Regulatory Requirements
Comment: Commenters generally expressed concern that the Department
did not comply with Executive Orders 12866 and 13563 because the
Department did not adequately consider the costs and possible
alternatives to the provisions in the rule due to the significance of
many of the rule's provisions. For example, commenters asserted that
the rule's effects on filing deadlines, the availability of
continuances, and evidentiary submissions would in fact impact aliens
in proceedings, particularly pro se individuals, and immigration
practitioners, contrary to the Department's assertions in the proposed
rule.
Similarly, commenters disagreed with the Department's assertion,
pursuant to the Regulatory Flexibility Act requirements, that the rule
would ``not have a significant economic impact on a substantial number
of small entities''
[[Page 81747]]
and that the rule only regulates individuals and not small entities. 85
FR at 59697. For example, commenters stated 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 law
firms or other organizations that appear before EOIR. Commenters
compared the rule to other recent proposed rule where the Department
acknowledged the effect on practitioners,\74\ which the commenters
stated is further evidence of the rule's effect.
---------------------------------------------------------------------------
\74\ See, e.g., 85 FR at 52491.
---------------------------------------------------------------------------
At least one commenter argued that the rule should be considered a
``major rule'' under the Congressional Review Act (``CRA'') because the
rule's effect will exceed the $100 million threshold. The commenter
explained that the rule's economic effect would result from increased
DHS detention costs due to increased application rejections, effects on
reduced employment authorization availability, and increased costs to
government agencies or subsidized entities that administer social
services programs.
Response: The Department reiterates its response to similar
comments regarding the rule's alleged effects on particular groups,
supra, and adds the following further response. Overall, the Department
disagrees with commenters' contention that it did not comply with
Executive Orders 12866 and 13653. The Department considered all costs
and possible alternatives to the provisions in the rule, and the fact
that the Department did not adopt an alternative suggested by
commenters--or did not retain the status quo--does not mean that such
alternatives were not considered.
As noted in the NPRM, the Department believes that the rule will
provide a significant net benefit by allowing for the expeditious and
efficient resolution of asylum cases. 85 FR at 59698. These benefits
will ensure that the Department's case volume does 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, requesting continuances, or presenting evidence in
immigration court. Moreover, the rule is not imposing any new costs on
asylum seekers. Respondents are already required to submit completed
asylum applications in order to have them adjudicated, and immigration
judges already have the authority to set deadlines. Additionally, any
costs imposed on attorneys or entities will be minimal and limited to
the time it will take to become familiar with the rule.\75\ Immigration
practitioners are already subject to professional responsibility rules
regarding workload management, 8 CFR 1003.102(q)(1), and are already
accustomed to preparing and filing documents related to asylum claims
according to deadlines established by immigration judges. Further, the
Department notes that attorneys have been aware of the 180-day
adjudication deadline for asylum applications for over two decades.
Finally, the generally prospective application of the rule--other than
the parts that are already established by statute or precedent and
under which practitioners have been practicing for over 20 years--
further diminishes the already-minimal effect of the rule on
practitioners, as no practitioners will be required to reevaluate any
cases or arguments that they are currently pursuing.
---------------------------------------------------------------------------
\75\ As discussed, supra, substantial parts of the rule merely
incorporate existing law, including principles enshrined in statute
or binding precedent. The new portions include: A new filing
deadline for aliens in proceedings under 8 CFR 1208.2(c), a new
deadline for returning asylum applications rejected as incomplete or
deficient, a new definition of ``exceptional circumstances'' for
purposes of section 208(d)(5)(A)(iii) of the Act, 8 U.S.C.
1158(d)(5)(A)(iii), and clarification of the evidentiary status of
government and non-government reports. None of what is new should
require an extensive amount of time to review or understand by
practitioners who are already experienced at meeting deadlines,
correcting incomplete applications, and arguing both whether a
particular circumstance meets the definition of an exceptional
circumstance and the weight that an adjudicator should accord to
various evidentiary submissions.
---------------------------------------------------------------------------
The Department also rejects 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
Department is 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, no commenters on this point acknowledged or recognized
that the Department reached a similar conclusion in 1997 involving a
far more sweeping and comprehensive rulemaking regarding asylum
adjudications. See Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of
[[Page 81748]]
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 far less significant in scope than the 1997
rulemaking, and part of the rule simply incorporates principles that
are already in effect through statutory enactment or binding precedent.
Moreover, this final rule is similar to previous rules, 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.\76\ The Department thus believe that the experience of
implementing prior rules supports its 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.
---------------------------------------------------------------------------
\76\ The Department's position for decades has been that for
purposes of the RFA and rulemakings related to EOIR proceedings,
rulemakings which directly regulate aliens--rather than directly
regulating practitioners--do not regulate small entities. See, e.g.,
Powers and Duties of Service Officers; Availability of Service
Records, 51 FR 2895 (Jan. 22, 1986) (proposed rule for changes to
EOIR's fee schedule for appeals and motions and stating, ``In
accordance with 5 U.S.C. 605(b), the Attorney General certifies that
the rule will not have a significant economic impact on a
substantial number of small entities.'') and 51 FR 39993, 39994
(Nov. 4, 1986) (final rule adopting in pertinent part the proposed
changes to the fee schedule and maintaining the position that
changes to the fee schedule will not have a significant impact on a
substantial number of small entities). Even when the Department has
directly regulated practitioners, it has found no significant impact
on a substantial number of small entities when the rule is simply
similar to existing regulatory procedures. See, e.g., Professional
Conduct for Practitioners--Rules and Procedures, and Representation
and Appearances, 73 FR 76914, 76922 (Dec. 18, 2008) (``The Attorney
General, in accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), has reviewed this regulation and, by approving it,
certifies that this rule will not have a significant economic impact
on a substantial number of small entities. This rule affects only
those practitioners who practice immigration law before EOIR. This
rule will not affect small entities, as that term is defined in 5
U.S.C. 601(6), because the rule is similar in substance to the
existing regulatory process.''). The Department is unaware of any
reasonable dispute or challenge to this longstanding position and
finds no reason to depart from its previous well-established and
accepted view.
---------------------------------------------------------------------------
The rule does not limit in any way the ability of practitioners to
accept cases, manage dockets, or assess fees. Nothing in the rule
directly, or indirectly, regulates practitioners or entities; rather,
the rule regulates individual asylum seekers. Practitioners remain free
to accept cases, manage dockets, and charge fees as they see fit.
Moreover, commenters' concerns regarding how practitioners will be
affected by the rule either are wholly speculative due to the case-by-
case nature of asylum adjudication, fail to account for the provisions
of the rule that have already been in effect for decades, or are beyond
the scope of this rulemaking. As such, the Department finds that
further analysis under the Regulatory Flexibility Act is not warranted.
In short, there is no evidence that the rule will have a significant
impact on small entities as contemplated by the Regulatory Flexibility
Act or an applicable executive order.
Furthermore, the Department does not believe that the rule should
be considered a ``major rule'' under the CRA. Assertions that the rule
will result in increased DHS detention costs, decreased employment
authorization availability, and increased costs to government agencies
and subsidized entities are purely speculative. In fact, the rule will
likely reduce costs to the government by allowing for a more
streamlined and efficient asylum process. Additionally, the commenter
who raised this concern presented no evidence that the rule would
result in an annual effect on the economy of $100 million or more, and
the Department is aware of no such evidence.
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 Department has reviewed this rule in accordance with the
Regulatory Flexibility Act and has determined that it will not have a
significant economic impact on a substantial number of small entities.
5 U.S.C. 605(b). The rule will not regulate ``small entities'' as that
term is defined in 5 U.S.C. 601(6). Only individuals, rather than
entities, are eligible to apply for asylum, and only individuals are
placed in immigration proceedings. The Department also incorporates by
reference herein the discussion in Section II.C.8, supra.
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
This rule would not be a major rule as defined by section 804 of
the Congressional Review Act. 5 U.S.C. 804(2). This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
E. Executive Orders 12866, 13563 and 13771
The Office of Information and Regulatory Affairs of the Office of
Management and Budget (``OMB'') has determined that this rule is a
``significant regulatory action'' under section 3(f) of Executive Order
12866. Accordingly, the regulation has been submitted to OMB for
review. The Department certifies that this regulation has been drafted
in accordance with the principles of Executive Order 12866, section
1(b), Executive Order 13563, and Executive Order 13771.
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects; distributive impacts; and equity).
Executive Order 13563 emphasizes the importance of using the best
available methods to quantify costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility.
The Department believes that this rule will effectuate
congressional intent to resolve cases in an expeditious manner and will
provide significant net benefits relating to EOIR proceedings by
allowing the agency to resolve cases more quickly. Section 1(b)(6) of
Executive Order 12866 states that ``[e]ach agency shall assess both the
costs and the benefits of the intended regulation and, recognizing that
some costs and benefits are difficult to quantify, propose or adopt a
regulation only upon a reasoned determination that the benefits of the
intended regulation justify its costs,'' As of October 13, 2020, EOIR
had over
[[Page 81749]]
580,000 pending cases with an application for asylum and withholding of
removal, and the median processing time for a non-detained case with an
asylum application is 1133 days. EOIR, Adjudication Statistics: Total
Asylum Applications (Oct. 13, 2020), available at https://www.justice.gov/eoir/page/file/1106366/download. This rule will assist
EOIR in adjudicating new asylum cases more efficiently to ensure that
this volume does not increase to an insurmountable degree. No costs to
the Department or to respondents are expected. Respondents are already
required to submit complete asylum applications to have them
adjudicated, and immigration judges already have authority to set
deadlines.
The Department notes that this rule will not impose any new fees.
Consistent with the treatment of other applications referred by USCIS
that are renewed in immigration proceedings, an alien filing a USCIS
Form I-589 with USCIS who is then referred to DOJ for immigration
proceedings would pay the application fee only once. The Department's
fees for applications published by DHS are established in accordance
with 8 CFR 1103.7(b)(4)(ii), which, in turn, cross-references the DHS
fee schedule. Given the inextricable nature of the two agencies' asylum
processes and the benefit of not treating applicants for substantially
similar benefits differently if they file with DOJ or with DHS, the
Department's regulations have included this cross-reference for several
years, and this rule does not alter it. The Department is also not
authorized, per regulation, to waive the application fee for an
application published by DHS if DHS identifies that fee as non-
waivable. 8 CFR 1103.7(c). The proposed rule does not alter that
regulatory structure.
The Department believes that this rule will impose only minimal, if
any, direct costs on the public. Any new minimal cost would be limited
to the cost of the public familiarizing itself with this rule, though
because parts of the rule merely codify longstanding statutory
provisions and certain precedents or otherwise reflect longstanding
pre-existing regulatory provisions, there is little new in the rule
that requires familiarization. An immigration judge's ability to set
filing deadlines is already established by regulation, and filing
deadlines for both applications and supporting documents are already a
well-established aspect of immigration court proceedings guided by
regulations and the Immigration Court Practice Manual. See generally
EOIR, Immigration Court Practice Manual (Nov. 25, 2020), available at
https://www.justice.gov/eoir/office-chief-immigration-judge-0. The rule
also does not require an immigration judge to schedule a merits hearing
at any particular time after the application is filed, as long as the
application is adjudicated within 180 days absent exceptional
circumstances, which is an existing and longstanding statutory
requirement, see INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii).
Moreover, this rule does not require that an alien wait until the
immigration judge sets a filing deadline before filing an application,
and an alien remains free to file his or her asylum application with
the immigration court before the first hearing. Asylum applications are
frequently filed prior to or at an initial immigration court hearing
already, and existing regulations allow for supplementing an initial
application as appropriate, subject to an immigration judge's
discretion. Most aliens filing asylum applications in pending
immigration proceedings--85 percent--have representation, see EOIR,
Current Representation Rates (Oct. 13, 2020), available at https://www.justice.gov/eoir/page/file/1062991/download, and the proposed rule
is not expected to increase any burdens on practitioners, who are
already subject to professional responsibility rules regarding workload
management, 8 CFR 1003.102(q)(1), and who are already accustomed to
preparing and filing documents related to asylum claims according to
deadlines established by an immigration judge. The Department
acknowledges that establishing a fixed deadline to file an asylum
application in some types of immigration proceedings may reduce the
availability of prior dilatory tactics as a matter of strategy, though
it also recognizes that attorneys have been aware of the 180-day
adjudication deadline for asylum applications for over two decades and
are familiar with the similar existing 10-day deadline for alien
crewmember asylum applications in 8 CFR 1208.5(b)(1)(ii).
No costs to the Department are associated with the rule. The
changes do not create an incentive that would cause DHS to file more
cases and, thus, are not expected to result in an increase in the
number of cases to be adjudicated by EOIR. Further, the changes provide
guidance for administrative decision-making but do not require
immigration judges to make more decisions or to prolong immigration
proceedings. This costs of this rule are considered de minimis for
purposes of Executive Order 13771.
F. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 44
U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320,
all agencies are required to submit to OMB, for review and approval,
any reporting requirements inherent in a rule. This rule may require
edits to the USCIS Form I-589, Application for Asylum and for
Withholding of Removal, because the filing of an asylum application now
requires submission, for any required fee, of a fee receipt or
alternate proof of payment. If necessary, a separate notice will be
published in the Federal Register requesting comments on the
information collection impacts of this rule and the revised USCIS Form
I-589.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and functions (Government agencies).
8 CFR Part 1103
Administrative practice and procedure, Authority delegations
(Government agencies), Reporting and recordkeeping requirements.
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1240
Administrative practice and procedure, Aliens.
Accordingly, for the reasons set forth in the preamble, and by the
authority vested in the Director, Executive Office for Immigration
Review, by the Attorney
[[Page 81750]]
General Order Number 4910-2020, the Department amends 8 CFR parts 1003,
1103, 1208, and 1240 as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. 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 Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
2. In Sec. 1003.8, revise paragraph (a)(1) to read as follows:
Sec. 1003.8 Fees before the Board.
(a) * * *
(1) When a fee is required. Except as provided in paragraph (a)(2)
of this section and 8 CFR 1208.4(d)(3), a filing fee prescribed in 8
CFR 1103.7, or a fee waiver request pursuant to paragraph (a)(3) of
this section, is required in connection with the filing of an appeal, a
motion to reopen, or a motion to reconsider before the Board.
* * * * *
0
3. In Sec. 1003.10, add three sentences at the end of paragraph (b) to
read as follows:
Sec. 1003.10 Immigration judges.
* * * * *
(b) * * * In the absence of exceptional circumstances, an
immigration judge shall complete administrative adjudication of an
asylum application within 180 days after the date an application is
filed. For purposes of this paragraph (b) and of Sec. Sec. 1003.29 and
1240.6 of this chapter, the term exceptional circumstances refers to
exceptional circumstances (such as battery or extreme cruelty to the
alien or any child or parent of the alien, serious illness of the party
or immigration judge, or serious illness or death of the spouse, child,
or parent of the alien, but not including less compelling
circumstances) beyond the control of the parties or the immigration
court. A finding of good cause does not necessarily mean that an
exceptional circumstance has also been established.
* * * * *
0
4. In Sec. 1003.24, revise paragraph (c)(1) to as follows:
Sec. 1003.24 Fees pertaining to matters within the jurisdiction of an
immigration judge.
* * * * *
(c) * * *
(1) When filed during proceedings. When an application for relief
is filed during the course of proceedings, the fee for that application
must be paid in advance to the Department of Homeland Security in
accordance with 8 CFR 103.7 and 8 CFR part 106. The fee receipt must
accompany the application when it is filed with the immigration court
except as provided by 8 CFR 1208.4(d)(3).
* * * * *
0
5. Revise Sec. 1003.29 to read as follows:
Sec. 1003.29 Continuances.
The immigration judge may grant a motion for continuance for good
cause shown, provided that nothing in this section shall authorize a
continuance that causes the adjudication of an asylum application to
exceed 180 days in the absence of exceptional circumstances, consistent
with section 208(d)(5)(A)(iii) of the Act and Sec. 1003.10(b).
0
6. In Sec. 1003.31, revise paragraphs (b) and (c) to read as follows:
Sec. 1003.31 Filing documents and applications.
* * * * *
(b) Except as provided in 8 CFR 1240.11(f) and 1208.4(d)(3), all
documents or applications requiring the payment of a fee must be
accompanied by a fee receipt from the Department of Homeland Security,
an alternate proof of payment consistent with Sec. 1208.4(d)(3), or by
an application for a waiver of fees pursuant to Sec. 1003.24. Except
as provided in Sec. 1003.8(a) and (c), any fee relating to Immigration
Judge proceedings shall be paid to, and accepted by, any Department of
Homeland Security office authorized to accept fees for other purposes
pursuant to Sec. 1103.7(a) of this chapter.
(c) Subject to Sec. 1208.4(d) of this chapter, the immigration
judge may set and extend time limits for the filing of applications and
related documents and responses thereto, if any, provided that nothing
in this section shall authorize setting or extending time limits for
the filing of documents after an asylum application has been filed that
would cause the adjudication of an asylum application to exceed 180
days in the absence of exceptional circumstances, consistent with
section 208(d)(5)(A)(iii) of the Act and Sec. 1003.10(b). If an
application or document is not filed within the time set by the
immigration judge, the opportunity to file that application or document
shall be deemed waived.
* * * * *
PART 1103--APPEALS, RECORDS, AND FEES
0
7. The authority citation for part 1103 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28
U.S.C. 509, 510.
0
8. In Sec. 1103.7, revise paragraph (a)(3) to read as follows:
Sec. 1103.7 Fees.
(a) * * *
(3) All other fees payable in connection with immigration
proceedings. Except as provided in 8 CFR 1003.8, the Executive Office
for Immigration Review does not accept the payment of any fee relating
to Executive Office for Immigration Review proceedings. Instead, such
fees, when required, shall be paid to, and accepted by, an office of
the Department of Homeland Security authorized to accept fees, as
provided in 8 CFR 103.7(a)(1) and 8 CFR part 106. The Department of
Homeland Security shall return to the payer, at the time of payment, a
receipt for any fee paid, and shall also return to the payer any
documents, submitted with the fee, relating to any immigration
proceeding. The fee receipt and the application or motion shall then be
submitted to the Executive Office for Immigration Review except as
provided by 8 CFR 1208.4(d)(3). Remittances to the Department of
Homeland Security for applications, motions, or forms filed in
connection with immigration proceedings shall be payable subject to the
provisions of 8 CFR 103.7(a)(2) and 8 CFR part 106.
* * * * *
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
9. 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 Pub. L. 110-229; Pub. L. 115-218.
0
10. In Sec. 1208.3, revise paragraph (c)(3) to read as follows:
Sec. 1208.3 Form of application.
* * * * *
(c) * * *
(3) An asylum application must be properly filed in accordance with
the form instructions and with Sec. Sec. 1003.24, 1003.31(b), and
1103.7(a)(3) of this chapter, including payment of a fee, if any, as
explained in the instructions to the application. For purposes of
filing with an immigration court, an asylum application is incomplete
if it does not include a response to each of the
[[Page 81751]]
required questions contained in the form, is unsigned, is unaccompanied
by the required materials specified in paragraph (a) of this section,
is not completed and submitted in accordance with the form
instructions, or is unaccompanied by any required fee receipt or other
proof of payment as provided in Sec. 1208.4(d)(3). The filing of an
incomplete application shall not commence the period after which the
applicant may file an application for employment authorization. An
application that is incomplete shall be rejected by the immigration
court. If an applicant wishes to have his or her application for asylum
considered, he or she shall correct the deficiencies in the incomplete
application and refile it within 30 days of rejection. Failure to
correct the deficiencies in an incomplete application or failure to
timely refile the application with the deficiencies corrected, absent
exceptional circumstances as defined in Sec. 1003.10(b) of this
chapter, shall result in a finding that the alien has abandoned that
application and waived the opportunity to file such an application;
* * * * *
0
11. In Sec. 1208.4, add paragraph (d) to read as follows:
Sec. 1208.4 Filing the application.
* * * * *
(d) Filing deadline. (1) For any alien in asylum-and-withholding-
only proceedings pursuant to Sec. 1208.2(c)(1) and paragraph
(b)(3)(iii) of this section, the immigration judge shall comply with
the requirements of Sec. 1240.11(c)(1)(i) through (iii) of this
chapter and shall set a deadline of fifteen days from the date of the
alien's first hearing before an immigration judge by which the alien
must file an asylum application, which includes an application for
withholding of removal under section 241(b)(3) of the Act and
protection under Sec. Sec. 1208.16 through 1208.18. The immigration
judge may extend the deadline for good cause. If the alien does not
file an asylum application by the deadline set by the immigration
judge, the immigration judge shall deem the opportunity to file such an
application waived, and the case shall be returned to the Department of
Homeland Security. For any alien in proceedings pursuant to Sec.
1208.2(c)(2), the immigration judge shall comply with the requirements
of Sec. 1240.11(c)(1)(i) through (iii) and shall set a deadline of
fifteen days from the date of the alien's first hearing before an
immigration judge by which the alien must file an application for
withholding of removal under section 241(b)(3) of the Act, which
includes an application for protection under Sec. Sec. 1208.16 through
1208.18. The immigration judge may extend the deadline for good cause.
If the alien does not file an application by the deadline set by the
immigration judge, the immigration judge shall deem the opportunity to
file such an application waived, and the case shall be returned to the
Department of Homeland Security.
(2) If the alien must pay a fee for submission of the asylum
application, the alien must submit the DHS-issued fee receipt together
with the application by the deadline set by the immigration judge in
paragraph (d)(1) of this section.
(3) If the alien has paid any required fee but has not received the
fee receipt from DHS by the deadline set by the immigration judge, the
alien must instead provide to the immigration court a copy of proof of
the payment to DHS with the asylum application. The alien must then
submit a copy of the fee receipt by a new deadline set by the
immigration judge. If the immigration judge does not set a deadline,
the alien must submit the fee receipt no later than 45 days after the
date of filing of the application.
Sec. 1208.7 [Removed and Reserved]
0
12. Remove and reserve Sec. 1208.7.
Sec. 1208.9 [Removed and Reserved]
0
13. Remove and reserve Sec. 1208.9.
0
14. In Sec. 1208.12, revise paragraph (a) to read as follows:
Sec. 1208.12 Reliance on information compiled by other sources.
(a) In deciding an asylum application, which includes an
application for withholding of removal under 241(b)(3) of the Act and
protection under Sec. Sec. 1208.16 through 1208.18, or in deciding
whether the alien has a credible fear of persecution or torture
pursuant to Sec. 1208.30, or a reasonable fear of persecution or
torture pursuant to Sec. 1208.31, an immigration judge may rely on
material provided by the Department of State, other Department of
Justice offices, the Department of Homeland Security, or other U.S.
Government agencies, and may rely on foreign government and non-
governmental sources if those sources are determined by the judge to be
credible and the material is probative. On his or her own authority, an
immigration judge may submit relevant evidence into the record, if the
source is credible and the evidence is probative, and may consider it
in deciding an asylum application, which includes an application for
withholding of removal under section 241(b)(3) of the Act and
protection under Sec. Sec. 1208.16 through 1208.18, provided that a
copy of the evidence has been provided to both parties and both parties
have had an opportunity to comment on or object to the evidence prior
to the issuance of the immigration judge's decision.
* * * * *
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
0
15. The authority citation for part 1240 continues to read as follows:
Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
105-277 (112 Stat. 2681).
0
16. Revise Sec. 1240.6 to read as follows:
Sec. 1240.6 Postponement and adjournment of hearing.
After the commencement of the hearing, the immigration judge may
grant a reasonable adjournment either at his or her own instance or,
for good cause shown, upon application by the respondent or the
Department of Homeland Security, provided that nothing in this section
shall authorize an adjournment that causes the adjudication of an
asylum application to exceed 180 days in the absence of exceptional
circumstances, consistent with section 208(d)(5)(A)(iii) of the Act and
Sec. 1003.10(b) of this chapter.
James R. McHenry III,
Director, Executive Office for Immigration Review, Department of
Justice.
[FR Doc. 2020-27210 Filed 12-15-20; 8:45 am]
BILLING CODE 4410-30-P
