Executive Office for Immigration Review – Federal Register Recent Federal Regulation Documents
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Securing the Border
On June 3, 2024, the President signed a Proclamation under sections 212(f) and 215(a) of the Immigration and Nationality Act ("INA") suspending and limiting the entry of certain noncitizens into the United States during emergency border circumstances. DHS and DOJ ("the Departments") issued a complementary interim final rule ("IFR") shortly thereafter. This final rule responds to public comments received on the IFR, makes certain revisions to the regulatory text, and seeks comment on potential changes to the Circumvention of Lawful Pathways rule as well as changes that parallel modifications made by the subsequent Proclamation.
Securing the Border
On June 3, 2024, the President signed a Proclamation under sections 212(f) and 215(a) of the Immigration and Nationality Act ("INA"), finding that the entry into the United States of certain noncitizens during emergency border circumstances would be detrimental to the interests of the United States, and suspending and limiting the entry of those noncitizens. The Proclamation directed DHS and DOJ to promptly consider issuing regulations addressing the circumstances at the southern border, including any warranted limitations and conditions on asylum eligibility. The Departments are now issuing this IFR.
Efficient Case and Docket Management in Immigration Proceedings
On September 8, 2023, the Department of Justice ("Department") published a notice of proposed rulemaking ("NPRM") proposing to rescind an enjoined December 2020 rule (the "AA96 Final Rule") that imposed novel limits on the authority of immigration judges and the Board of Immigration Appeals ("BIA" or "Board") to efficiently dispose of cases. Because the AA96 Final Rule has been enjoined since shortly after its issuance, the proposed rule was designed to largely codify the currently operative status quo. After reviewing and considering the public comments received during the comment period, the Department is finalizing the proposed rule with the limited changes described in the preamble. The Department believes that this rule will promote the efficient and expeditious adjudication of cases, afford immigration judges and the Board flexibility to efficiently allocate their limited resources, and protect due process for parties before immigration judges and the Board.
Expanding the Size of the Board of Immigration Appeals
On April 1, 2020, the Department of Justice ("the Department" or "DOJ") published an interim final rule ("IFR") with request for comments that amended its regulations relating to the organization of the Board of Immigration Appeals ("Board") by adding two Board member positions, thereby expanding the Board to 23 members. This final rule responds to comments received and adds five additional Board member positions, thereby expanding the Board to 28 members. The final rule also clarifies that temporary Board members serve renewable terms of up to six months and that temporary Board members are appointed by the Attorney General.
Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure
In December 2020, the Department of Justice issued a final rule (the ``AA96 Final Rule'') establishing novel limits on the authority of immigration judges and the Board of Immigration Appeals (``BIA'' or ``Board'') to manage their dockets and efficiently dispose of cases. Among other changes, the AA96 Final Rule would have required the BIA to set simultaneous briefing schedules for every appeal, limited the authority of immigration judges and the BIA to temporarily pause cases while the United States Citizenship and Immigration Services (``USCIS'') adjudicates a noncitizen's pending visa application, and restricted the BIA's discretion to remand matters to immigration judges in light of legal and factual errors. The AA96 Final Rule was enjoined shortly after its issuance in March 2021, and it has not been in effect since that date. After careful reconsideration, the Department proposes to restore longstanding procedures in place prior to the AA96 Final Rule, including administrative closure, and to clarify and codify other established practices. Given the aforementioned injunction, the proposed regulatory language largely reflects the currently operative status quo. The Department believes that this rule will promote the efficient and expeditious adjudication of cases, afford immigration judges and the BIA flexibility to efficiently allocate their limited resources, and protect due process for parties before immigration judges and the BIA.
Circumvention of Lawful Pathways
The Department of Homeland Security (``DHS'') and the Department of Justice (``DOJ'') are issuing a final rule in anticipation of a potential surge of migration at the southwest border (``SWB'') of the United States following the termination of the Centers for Disease Control and Prevention's (``CDC'') public health Order. The rule encourages migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in another country through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain. The rule does so by introducing a rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel. In the absence of such a measure, which would apply only to those who enter at the southwest land border or adjacent coastal borders during a limited, specified date range, the number of migrants expected to travel without authorization to the United States would be expected to increase significantly, to a level that risks undermining the Departments' continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system, in the face of exceptionally challenging circumstances. Coupled with an expansion of lawful, safe, and orderly pathways into the United States, the Departments expect the rule to lead to a reduction in the number of migrants who seek to cross the SWB without authorization to enter, thereby reducing the reliance by migrants on dangerous human smuggling networks, protecting against extreme overcrowding in border facilities, and helping to ensure that the processing of migrants seeking protection in the United States is done in an effective, humane, and efficient manner. In addition, the Departments are requesting comment on whether applicability of the rebuttable presumption should be extended to noncitizens who enter the United States without documents sufficient for lawful admission during the same temporary time period at a maritime border.
Implementation of the 2022 Additional Protocol to the 2002 U.S.-Canada Agreement for Cooperation in the Examination of Refugee Status Claims From Nationals of Third Countries; Correction
The Department of Justice (``DOJ'') and the Department of Homeland Security (``DHS'') (``collectively, ``the Departments'') are correcting inadvertent errors and omissions in the preamble and the amendatory language of the final rule titled ``Implementation of the 2022 Additional Protocol to the 2002 U.S.-Canada Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries'' published in the Federal Register on March 28, 2023.
Implementation of the 2022 Additional Protocol to the 2002 U.S.-Canada Agreement for Cooperation in the Examination of Refugee Status Claims From Nationals of Third Countries
This rule amends existing Department of Homeland Security (``DHS'') and Department of Justice (``DOJ'') (collectively, ``the Departments'') regulations to implement the Additional Protocol to the Agreement between The Government of the United States of America and The Government of Canada For Cooperation in the Examination of Refugee Status Claims From Nationals of Third Countries (``Additional Protocol of 2022'') negotiated by the Governments of the United States and Canada and signed in Ottawa, Ontario, Canada, on March 29, 2022, and in Washington, DC, United States, on April 15, 2022, respectively. The Additional Protocol of 2022 supplements certain terms of the December 5, 2002, Agreement between The Government of the United States and The Government of Canada For Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (``Safe Third Country Agreement,'' ``STCA,'' or ``Agreement''). Pursuant to the STCA, the respective governments manage which government decides certain individuals' requests for asylum or other protection relating to fear of persecution or torture (referred to as a ``refugee status claim'' in the STCA and the Additional Protocol of 2022) pursuant to its laws, regulations, and policies implementing its international treaty obligations relating to non-refoulement. Under the STCA, only those individuals who cross the U.S.-Canada land border at a port of entry (``POE''), or in transit while being removed or deported to a third country from the ``country of last presence,'' are subject to the terms of the STCA. Once the Additional Protocol of 2022 is implemented, the STCA also will apply to individuals who cross the U.S.-Canada land border between POEs, including certain bodies of water, and who make an asylum or other protection claim relating to a fear of persecution or torture within 14 days after such crossing. The Additional Protocol of 2022 will enter into force once the United States and Canada have officially notified each other that they have completed the necessary domestic procedures for bringing the Additional Protocol of 2022 into force. The Departments intend this official notification to coincide with the effective date of this final rule at 12:01 a.m. on Saturday, March 25, 2023.
Circumvention of Lawful Pathways
The Department of Homeland Security (``DHS'') and the Department of Justice (``DOJ'') are issuing a notice of proposed rulemaking (``NPRM'' or ``proposed rule'') in anticipation of a potential surge of migration at the southwest border (``SWB'') of the United States following the eventual termination of the Centers for Disease Control and Prevention's (``CDC'') public health Order. The proposed rule would encourage migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in countries through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain. It would do so by introducing a rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel. In the absence of such a measure, which would be implemented on a temporary basis, the number of migrants expected to travel without authorization to the United States is expected to increase significantly, to a level that risks undermining the Departments' continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system, in the face of exceptionally challenging circumstances. Coupled with an expansion of lawful, safe, and orderly pathways into the United States, the Departments expect the proposed rule to lead to a reduction in the numbers of migrants who seek to cross the SWB without authorization to enter, thereby reducing the reliance by migrants on dangerous human smuggling networks, protecting against extreme overcrowding in border facilities, and helping to ensure that the processing of migrants seeking protection in the United States is done in an effective, humane, and efficient manner.
Security Bars and Processing; Delay of Effective Date
On December 23, 2020, the Department of Homeland Security (``DHS'') and the Department of Justice (``DOJ'') (collectively, ``the Departments'') published a final rule (``Security Bars rule''), to clarify that the ``danger to the security of the United States'' standard in the statutory bar to eligibility for asylum and withholding of removal encompasses certain emergency public health concerns and to make certain other changes. This rule would have made a noncitizen ineligible for asylum if, among other things, the noncitizen was physically present in a country in which a communicable disease was prevalent or epidemic, and the Secretary of Homeland Security and the Attorney General determined that the physical presence in the United States of noncitizens coming from that country would cause a danger to the public health. That rule was scheduled to take effect on January 22, 2021, but, as of January 21, 2021, the Departments delayed the rule's effective date for 60 days to March 22, 2021. The Departments subsequently further delayed the rule's effective date to December 31, 2021, and most recently to December 31, 2022. In this rule, the Departments are further extending the delay of the effective date of the Security Bars rule until December 31, 2024. The Departments are soliciting comments both on the delay until December 31, 2024, and whether the effective date of the Security Bars rule should be delayed beyond that date.
Professional Conduct for Practitioners-Rules and Procedures, and Representation and Appearances
On March 27, 2019, the Department of Justice (the Department) published in the Federal Register an Advanced Notice of Proposed Rulemaking (ANPRM) to solicit public comments regarding whether the Department should allow practitioners who appear before the Executive Office for Immigration Review (EOIR) to engage in limited representation or representation of a noncitizen during only a portion of the case, beyond what the regulations permitted. On September 30, 2020, after reviewing the comments to the ANPRM, the Department published in the Federal Register a Notice of Proposed Rulemaking (NPRM). The NPRM proposed to amend the regulations to allow practitioners the option of entering a limited appearance to assist pro se individuals with drafting, writing, or filing applications, petitions, briefs, and other documents in proceedings before EOIR, as opposed to requiring the practitioner to enter an appearance to become the ``practitioner of record'' and thereby to accept certain obligations and responsibilities. This final rule responds to comments received in response to the NPRM and adopts the proposed rule with changes as described below. Specifically, this final rule permits practitioners to provide document assistance to pro se individuals by entering a limited appearance through new Forms EOIR-60 or EOIR-61, without requiring the practitioner to become the practitioner of record or to submit a motion to withdraw or substitute after completing the document assistance.
Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers
On August 20, 2021, the Department of Homeland Security (``DHS'') and the Department of Justice (``DOJ'') (collectively ``the Departments'') published a notice of proposed rulemaking (``NPRM'' or ``proposed rule'') that proposed amending regulations governing the procedures for determining certain protection claims and available parole procedures for individuals subject to expedited removal and found to have a credible fear of persecution or torture. After a careful review of the comments received, the Departments are now issuing an interim final rule (``rule'' or ``IFR'') that responds to comments received in response to the NPRM and adopts the proposed rule with changes. Most significantly, the IFR provides that DHS's United States Citizenship and Immigration Services (``USCIS'') will refer noncitizens whose applications are not granted to DOJ's Executive Office for Immigration Review (``EOIR'') for streamlined removal proceedings. The IFR also establishes timelines for the consideration of applications for asylum and related protection by USCIS and, as needed, EOIR. This IFR responds to comments received in response to the NPRM and adopts the NPRM with changes as described in this rule. The Departments solicit further public comment on the IFR's revisions, which will be considered and addressed in a future rule.
Notice of Meeting-EOIR Case & Appeals System; Immigration Court Online Resource
The Executive Office for Immigration Review (``EOIR'') invites interested parties to attend the first of a series of public forums about its Access EOIR initiative. During the session, agency senior leadership will be available to listen to comments, compliments, and concerns from stakeholders regarding two of EOIR's web-based initiatives: EOIR Courts & Appeals System (``ECAS''), and Immigration Court Online Resource (``ICOR'').
Security Bars and Processing; Delay of Effective Date
On December 23, 2020, the Department of Homeland Security (``DHS'') and the Department of Justice (``DOJ'') (collectively, ``the Departments'') published a final rule (``Security Bars rule''), to clarify that the ``danger to the security of the United States'' standard in the statutory bar to eligibility for asylum and withholding of removal encompasses certain emergency public health concerns and to make certain other changes. That rule was scheduled to take effect on January 22, 2021, but, as of January 21, 2021, the Departments delayed the rule's effective date for 60 days to March 22, 2021. The Departments subsequently further extended and delayed the rule's effective date to December 31, 2021. In this rule, the Departments are further extending and delaying the effective date of the Security Bars rule until December 31, 2022. The Departments are soliciting comments both on the extension until December 31, 2022, and whether the effective date of the Security Bars rule should be extended beyond that date.
Executive Office for Immigration Review Electronic Case Access and Filing
On December 4, 2020, the Executive Office for Immigration Review (``EOIR'') published a notice of proposed rulemaking (``NPRM'' or ``proposed rule''), proposing to amend EOIR's regulations in order to implement electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals (``BIA''). The NPRM also proposed amendments to the regulations regarding law student filing and accompaniment procedures. This final rule responds to comments received in response to the NPRM and adopts the NPRM with changes as described below.
Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers
The Department of Justice (``DOJ'') and the Department of Homeland Security (``DHS'') (collectively, ``the Departments'') are proposing to amend the regulations governing the determination of certain protection claims raised by individuals subject to expedited removal and found to have a credible fear of persecution or torture. Under the proposed rule, such individuals could have their claims for asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (``INA'' or ``the Act'') (``statutory withholding of removal''), or protection under the regulations issued pursuant to the legislation implementing U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (``CAT'') initially adjudicated by an asylum officer within U.S. Citizenship and Immigration Services (``USCIS''). Such individuals who are granted relief by the asylum officer would be entitled to asylum, withholding of removal, or protection under CAT, as appropriate. Such individuals who are denied protection would be able to seek prompt, de novo review with an immigration judge (``IJ'') in the DOJ Executive Office for Immigration Review (``EOIR''), with appeal available to the Board of Immigration Appeals (``BIA''). These changes are intended to improve the Departments' ability to consider the asylum claims of individuals encountered at or near the border more promptly while ensuring fundamental fairness. In addition, among other changes to the asylum process, the Departments are proposing to return to the regulatory framework governing the credible fear screening process in place before various regulatory changes made from the end of 2018 through the end of 2020, so as to apply once more the longstanding ``significant possibility'' screening standard to all protection claims, but not to apply the mandatory bars to asylum and withholding of removal (with limited exception) at this initial screening stage.
Agency Information Collection Activities; Proposed Collection; Comments Requested; Notice of Appeal to the Board of Immigration Appeals From a Decision of a DHS Officer
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the Federal Register on March 3, 2021, allowing for a 60-day comment period.
Fee Waiver Request; Correction
The Executive Office for Immigration Review, Department of Justice, submitted a 60-day notice for publishing in the Federal Register on March 4, 2021 soliciting comments to an information collection request Fee Waiver Request, to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. Please disregard the duplicate 60-day notice, which was inadvertently published on April 28, 2020.
Security Bars and Processing; Delay of Effective Date
On December 23, 2020, the Department of Homeland Security (``DHS'') and the Department of Justice (``DOJ'') (collectively, ``the Departments'') published a final rule (``Security Bars rule'') to clarify that the ``danger to the security of the United States'' standard in the statutory bar to eligibility for asylum and withholding of removal encompasses certain emergency public health concerns and to make certain other changes; that rule was scheduled to take effect on January 22, 2021. As of January 21, 2021, the Departments delayed the rule's effective date for 60 days to March 22, 2021. In this rule, the Departments are further extending and delaying the rule's effective date to December 31, 2021. In addition, in light of evolving information regarding the best approaches to mitigating the spread of communicable disease, the Departments are also considering action to rescind or revise the Security Bars rule. The Departments are seeking public comment on whether that rule represents an effective way to protect public health while reducing barriers for noncitizens seeking forms of protection in the United States, or whether the Security Bars rule should be revised or revoked.
Security Bars and Processing; Delay of Effective Date
On December 23, 2020, DHS and DOJ (collectively, ``the Departments'') published a final rule to clarify that the danger to the security of the United States statutory bar to eligibility for asylum and withholding of removal encompass certain emergency public health concerns and make certain other changes. The Departments are delaying the rule's effective date for 60 days.
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
The Department of Justice is correcting a final rule that appeared in the Federal Register on December 11, 2020. That document amended Department of Homeland Security and Department of Justice (``the Departments'') regulations governing credible fear determinations. Individuals found to have a credible fear will have their claims for asylum, withholding of removal under Immigration and Nationality or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, adjudicated by an immigration judge within the Executive Office for Immigration Review in streamlined proceedings (rather than under section 240 of the Act). The final rule also specifid what standard of review applies in such streamlined proceedings.
Security Bars and Processing
On July 9, 2020, DHS and DOJ (collectively, ``the Departments'') published a notice of proposed rulemaking (``NPRM'') clarifying that the danger to the security of the United States statutory bar to eligibility for asylum and withholding of removal may encompass emergency public health concerns. This final rule responds to comments received in response to the NPRM and reflects (and in some instances, modifies) intervening changes made to the regulatory framework by Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, published December 11, 2020 (``Global Asylum Final Rule''). Namely, it amends existing regulations to clarify that in certain circumstances there are ``reasonable grounds for regarding [an] alien as a danger to the security of the United States'' or ``reasonable grounds to believe that [an] alien is a danger to the security of the United States'' based on emergency public health concerns generated by a communicable disease, making the alien ineligible to be granted asylum in the United States under section 208 of the Immigration and Nationality Act (``INA'') or the protection of withholding of removal under the INA (``statutory withholding of removal'') or subsequent regulations (because of the threat of torture). The final rule further allows DHS to exercise its prosecutorial discretion regarding how to process individuals subject to expedited removal who are determined to be ineligible for asylum and withholding of removal in the United States because they are subject to the danger to the security of the United States. Finally, the rule modifies the process in expedited removal proceedings for screening aliens for potential eligibility for deferral of removal (who are ineligible for withholding of removal as subject to the danger to the security of the United States bar).
Executive Office for Immigration Review; Fee Review
On February 28, 2020, the Department of Justice (``the Department'' or ``DOJ'') published a notice of proposed rulemaking (``NPRM'' or ``proposed rule'') that would increase the fees for those Executive Office for Immigration Review (``EOIR'') applications, appeals, and motions that are subject to an EOIR-determined fee, based on a fee review conducted by EOIR. The proposed rule would not affect fees established by the Department of Homeland Security (``DHS'') with respect to DHS forms for applications that are filed or submitted in EOIR proceedings. The proposal would not affect the ability of aliens to submit fee waiver requests, nor would it add new fees. The proposed rule would also update cross-references to DHS regulations regarding fees and make a technical change regarding requests under the Freedom of Information Act (``FOIA''). This final rule responds to comments received in response to the NPRM and adopts the fee amounts proposed in the NPRM without change.
Asylum Eligibility and Procedural Modifications
On July 16, 2019, the Department of Justice and the Department of Homeland Security (``DOJ,'' ``DHS,'' or, collectively, ``the Departments'') published an interim final rule (``IFR'') governing asylum claims in the context of aliens who enter or attempt to enter the United States across the southern land border between the United States and Mexico (``southern land border'') after failing to apply for protection from persecution or torture while in a third country through which they transited en route to the United States. This final rule responds to comments received on the IFR and makes minor changes to regulations implemented or affected by the IFR for clarity and correction of typographical errors.
Procedures for Asylum and Withholding of Removal
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.
Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure
On August 26, 2020, the Department of Justice (``Department'') published a notice of proposed rulemaking (``NPRM'' or ``proposed rule'') that would amend the regulations of the Executive Office for Immigration Review (``EOIR'') regarding the handling of appeals to the Board of Immigration Appeals (``BIA'' or ``Board''). The Department proposed multiple changes to the processing of appeals to ensure the consistency, efficiency, and quality of its adjudications. The Department also proposed to amend the regulations to make clear that there is no freestanding authority of line immigration judges or BIA members to administratively close cases. Finally, the Department proposed to delete inapplicable or unnecessary provisions regarding the forwarding of the record of proceedings on appeal. This final rule responds to comments received in response to the NPRM and adopts the NPRM with minor changes as described below.
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
On June 15, 2020, the Department of Homeland Security (``DHS'') and the Department of Justice (``DOJ'') (collectively ``the Departments'') published a notice of proposed rulemaking (``NPRM'' or ``proposed rule'') that would amend the regulations governing credible fear determinations. The proposed rule would make it so that individuals found to have a credible fear will have their claims for asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (``INA'' or ``the Act'') (``statutory withholding of removal''), or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (``CAT''), adjudicated by an immigration judge within the Executive Office for Immigration Review (``EOIR'') in streamlined proceedings (rather than under section 240 of the Act), and to specify what standard of review applies in such streamlined proceedings. The Departments further proposed changes to the regulations regarding asylum, statutory withholding of removal, and withholding and deferral of removal under the Convention Against Torture (``CAT'') regulations. The Departments also proposed amendments related to the standards for adjudication of applications for asylum and statutory withholding. This final rule (``rule'' or ``final rule'') responds to comments received in response to the NPRM and generally adopts the NPRM with few substantive changes.
Executive Office for Immigration Review Electronic Case Access and Filing
The Executive Office for Immigration Review (``EOIR'') is proposing to implement electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals (``BIA''). The proposed rule would update the relevant regulations necessary to implement these electronic filing and records applications, including requiring certain users to file documents electronically and changes to service of process. EOIR further proposes clarifications to the regulations regarding law student filing and accompaniment procedures.
Good Cause for a Continuance in Immigration Proceedings
The Department of Justice (``Department'' or ``DOJ'') is proposing to define ``good cause,'' in the context of continuances, adjournments, and postponements, in its immigration regulations.
Motions To Reopen and Reconsider; Effect of Departure; Stay of Removal
The Department of Justice (``Department'') proposes to amend Executive Office for Immigration Review (``EOIR'') regulations governing the filing and adjudication of motions to reopen and reconsider and to add regulations governing requests for discretionary stays of removal.
Organization of the Executive Office for Immigration Review
On August 26, 2019, the Department of Justice (``Department'') published an interim final rule (``IFR'') amending the regulations related to the internal organization of the Executive Office for Immigration Review (``EOIR''). The amendments reflected changes related to the establishment of EOIR's Office of Policy (``OP'') in 2017, made related clarifications or changes to the organizational role of EOIR's Office of the General Counsel (``OGC'') and Office of Legal Access Programs (``OLAP''), updated the Department's organizational regulations to align them with EOIR's regulations, made nomenclature changes to the titles of the members of the Board of Immigration Appeals (``BIA'' or ``Board''), provided for a delegation of authority from the Attorney General to the EOIR Director (``Director'') related to the efficient disposition of appeals, and clarified the Director's authority to adjudicate cases following changes to EOIR's Recognition and Accreditation Program (``R&A Program'') in 2017. This final rule responds to comments received and adopts the provisions of the IFR with some additional amendments: Restricting the authority of the Director regarding the further delegation of certain regulatory authorities, clarifying that the Director interprets relevant regulatory provisions when adjudicating recognition and accreditation (``R&A'') cases, and reiterating the independent judgment and discretion by which the Director will consider cases subject to his adjudication.
Procedures for Asylum and Bars to Asylum Eligibility
On December 19, 2019, the Department of Justice (``DOJ'') and the Department of Homeland Security (``DHS'') (collectively, ``the Departments'') published a notice of proposed rulemaking (``NPRM'') that would amend their respective regulations governing the bars to asylum eligibility. The Departments also proposed to clarify the effect of criminal convictions and to remove their respective regulations governing the automatic reconsideration of discretionary denials of asylum applications. This final rule (``final rule'' or ``rule'') responds to comments received and adopts the provisions of the NPRM with technical corrections to ensure clarity and internal consistency.
Professional Conduct for Practitioners-Rules and Procedures, and Representation and Appearances
This proposed rule would amend Department of Justice (``Department'' or ``DOJ'') regulations to allow practitioners to assist individuals with drafting, writing, or filing applications, petitions, briefs, and other documents in proceedings before the Executive Office for Immigration Review (``EOIR'') by filing an amended version of EOIR's current forms (Form EOIR-27 and Form EOIR-28) noticing the entry of appearance of a practitioner. Those amended forms would also function as a notice of disclosure of legal assistance for practitioners who provide legal assistance but choose not to represent aliens in immigration proceedings, and also a notice of disclosure of preparation by practitioners. The proposed rule would further clarify that the only persons who may file a document with the agency are those recognized as eligible to do business with the agency and those aliens who are filing a document over which the agency has jurisdiction. Also, the proposed rule would make non-substantive changes regarding capitalization and amend outdated references to the former Immigration and Naturalization Service (``INS'').
Procedures for Asylum and Withholding of Removal
The Department of Justice (``Department'' or ``DOJ'') proposes to amend the Executive Office for Immigration Review (``EOIR'') regulations governing asylum and withholding of removal, including changes to what must be included with an application for such relief for it to be considered complete and the consequences of filing an incomplete application, changes establishing a 15-day filing deadline for aliens applying for asylum in asylum-and-withholding-only proceedings, and changes related to the 180-day asylum adjudication clock.
Agency Information Collection Activities; Proposed Collection; Comments Requested; Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Security Bars and Processing
This proposed rule would amend existing DHS and DOJ (collectively, ``the Departments'') regulations to clarify that the Departments may consider emergency public health concerns based on communicable disease due to potential international threats from the spread of pandemics when making a determination as to whether ``there are reasonable grounds for regarding [an] alien as a danger to the security of the United States'' and, thus, ineligible to be granted asylum or the protection of withholding of removal in the United States under Immigration and Nationality Act (``INA'') sections 208 and 241 and DHS and DOJ regulations. The proposed rule also would provide that this application of the statutory bars to eligibility for asylum and withholding of removal will be effectuated at the credible fear screening stage for aliens in expedited removal proceedings in order to streamline the protection review process and minimize the spread and possible introduction into the United States of communicable and widespread disease. The proposed rule further would allow DHS to exercise its prosecutorial discretion regarding how to process individuals subject to expedited removal who are determined to be ineligible for asylum in the United States on certain grounds, including being reasonably regarded as a danger to the security of the United States. Finally, the proposed rule would modify the process for evaluating the eligibility of aliens for deferral of removal who are ineligible for withholding of removal as presenting a danger to the security of the United States.
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
The Department of Justice and the Department of Homeland Security (collectively, ``the Departments'') propose to amend the regulations governing credible fear determinations so that individuals found to have such a fear will have their claims for asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (``INA'' or ``the Act'') (``statutory withholding of removal''), or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (``CAT''), adjudicated by an immigration judge within the Executive Office for Immigration Review (``EOIR'') in streamlined proceedings (rather than in proceedings under section 240 of the Act), and to specify what standard of review applies in such streamlined proceedings. The Departments further propose changes to the regulations regarding asylum, statutory withholding of removal, and withholding and deferral of removal under the CAT regulations. The Departments also propose amendments related to the standards for adjudication of applications for asylum and statutory withholding.
Implementation of the Northern Mariana Islands U.S. Workforce Act of 2018
The Department of Justice (``DOJ'' or ``the Department'') is making technical amendments to its regulations to conform to changes made by the Northern Mariana Islands U.S. Workforce Act of 2018 (Workforce Act). The Workforce Act, in part, extended the bar for asylum in the Commonwealth of the Northern Mariana Islands (CNMI) by fifteen years, providing that the current bar will continue to apply for asylum applications submitted prior to January 1, 2030. This final rule makes the necessary conforming date changes in the Department's regulations.
Expanding the Size of the Board of Immigration Appeals
This rule amends the Department of Justice regulations relating to the organization of the Board of Immigration Appeals (``Board'') by adding two Board member positions, thereby expanding the Board to 23 members.
Executive Office for Immigration Review; Fee Review
The Department of Justice's Executive Office for Immigration Review (``EOIR'') imposes fees, also known as user charges, for the filing of certain EOIR forms for applications for relief, appeals filed with the Board of Immigration Appeals (``BIA''), and motions to reopen or reconsider. When applicable, the current fee for EOIR applications for relief is $100, and the fee for motions or appeals is $110. EOIR last reviewed and updated these fees 33 years ago, in 1986. This proposed rule (``proposed rule'' or ``rule'') would increase the fees for those EOIR applications, appeals, and motions that are subject to an EOIR-determined fee, based on a fee review conducted by EOIR. This proposed rule would not affect the fees that have been established by the Department of Homeland Security (``DHS'') with respect to DHS forms for applications that are filed or submitted in EOIR proceedings. This proposal does not affect the ability of aliens to submit fee waiver requests, nor does it add new fees. The proposed rule also updates cross-references to DHS regulations regarding fees and makes a technical change regarding requests under the Freedom of Information Act.
Procedures for Asylum and Bars to Asylum Eligibility
The Department of Justice and the Department of Homeland Security (collectively, ``the Departments'') propose to amend their respective regulations governing the bars to asylum eligibility. The Departments also propose to clarify the effect of criminal convictions and to remove their respective regulations governing the automatic reconsideration of discretionary denials of asylum applications.
Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act
The Department of Justice (``DOJ'') and the Department of Homeland Security (``DHS'') (collectively, ``the Departments'') are adopting an interim final rule (``IFR'' or ``rule'') to modify existing regulations to provide for the implementation of Asylum Cooperative Agreements (``ACAs'') that the United States enters into pursuant to section 208(a)(2)(A) of the Immigration and Nationality Act (``INA'' or ``Act''). Because the underlying purpose of section 208(a)(2)(A) is to provide asylum seekers with access to only one of the ACA signatory countries' protection systems, this rule adopts a modified approach to the expedited removal (``ER'') and section 240 processes in the form of a threshold screening as to which country will consider the alien's claim. This rule will apply to all ACAs in force between the United States and countries other than Canada, including bilateral ACAs recently entered into with El Salvador, Guatemala, and Honduras in an effort to share the distribution of hundreds of thousands of asylum claims. The rule will apply only prospectively to aliens who arrive at a U.S. port of entry, or enter or attempt to enter the United States between ports of entry, on or after the effective date of the rule.
Organization of the Executive Office for Immigration Review
This interim rule amends the regulations related to the internal organization of the Executive Office for Immigration Review (``EOIR''). This interim rule reflects changes related to the establishment of an Office of Policy within EOIR in 2017, and makes related clarifications or changes to the organizational role of EOIR's Office of the General Counsel (``OGC'') and Office of Legal Access Programs (``OLAP''). This interim rule further updates the Department of Justice (``Department'') organizational regulations to synchronize them with EOIR's regulations, makes nomenclature changes to the titles of the members of the Board of Immigration Appeals (``BIA'' or ``Board''), and provides for a further delegation of authority from the Attorney General to the EOIR Director (``Director'') regarding the efficient disposition of appeals. This interim rule also clarifies the Director's authority to adjudicate cases following changes to EOIR's Recognition and Accreditation Program (``R&A Program'') in 2017.
Asylum Eligibility and Procedural Modifications
The Department of Justice and the Department of Homeland Security (``DOJ,'' ``DHS,'' or collectively, ``the Departments'') are adopting an interim final rule (``interim rule'' or ``rule'') governing asylum claims in the context of aliens who enter or attempt to enter the United States across the southern land border after failing to apply for protection from persecution or torture while in a third country through which they transited en route to the United States. Pursuant to statutory authority, the Departments are amending their respective regulations to provide that, with limited exceptions, an alien who enters or attempts to enter the United States across the southern border after failing to apply for protection in a third country outside the alien's country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States is ineligible for asylum. This basis for asylum ineligibility applies only prospectively to aliens who enter or arrive in the United States on or after the effective date of this rule. In addition to establishing a new mandatory bar for asylum eligibility for aliens who enter or attempt to enter the United States across the southern border after failing to apply for protection from persecution or torture in at least one third country through which they transited en route to the United States, this rule would also require asylum officers and immigration judges to apply this new bar on asylum eligibility when administering the credible-fear screening process applicable to stowaways and aliens who are subject to expedited removal under section 235(b)(1) of the Immigration and Nationality Act. The new bar established by this regulation does not modify withholding or deferral of removal proceedings. Aliens who fail to apply for protection in a third country of transit may continue to apply for withholding of removal under the Immigration and Nationality Act (``INA'') and deferral of removal under regulations issued pursuant to the legislation implementing U.S. obligations under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents
The Department of Justice (Department) is publishing this final rule (``final rule'' or ``rule'') to amend the regulations regarding the administrative review procedures of the Board of Immigration Appeals (BIA or Board). This final rule sets forth the Department's longstanding position that the regulations providing for an affirmance without opinion (AWO), a single-member opinion, or a three-member panel opinion are not intended to create any substantive right to a particular manner of review or decision. The final rule also clarifies that the BIA is presumed to have considered all of the parties' relevant issues and claims of error on appeal regardless of the type of the BIA's decision, and that the parties are obligated to raise issues and exhaust claims of error before the BIA. In addition, the final rule codifies standards for the BIA's consideration in evaluating whether to designate particular decisions as precedents. Finally, the final rule provides clarity surrounding precedent decisions in the context of decisions from the Executive Office for Immigration Review (EOIR) regarding the recognition of organizations and the designation of accredited representatives.
Professional Conduct for Practitioners, Scope of Representation and Appearances
The Department of Justice (Department) is evaluating the possibility of revising the rules and procedures governing representation and appearance during proceedings before the Executive Office for Immigration Review's (EOIR) immigration courts and Board of Immigration Appeals (BIA). The Department is considering whether to amend those rules to allow for, and identify the nature and scope of, authorized practitioners' limited representation of aliens before EOIR. The Department is issuing this advance notice of proposed rulemaking (ANPRM) to solicit public suggestions for any such potential amendments to the relevant portions of EOIR's regulations.
Agency Information Collection Activities; Proposed Collection; Comments Requested; Reinstatement, With Change, of a Currently Approved Collection
The Department of Justice, Executive Office for Immigration Review, is submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Agency Information Collection Activities; Proposed Collection; Comments Requested; Reinstatement, With Change, of a Currently Approved Collection
The Department of Justice, Executive Office for Immigration Review, is submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
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