Executive Office for Immigration Review 2021 – Federal Register Recent Federal Regulation Documents
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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.
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