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.