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DEPARTMENT OF HOMELAND comments prior to midnight eastern Immigration Review, 5107 Leesburg SECURITY time at the end of that day. Comments Pike, Suite 1800, Falls Church, VA specific to the proposed collection of 22041, telephone (703) 305–0289 (not a 8 CFR Parts 208 and 235 information will be accepted until toll-free call). RIN 1615–AC42 August 14, 2020. All such submissions Maureen Dunn, Chief, Division of received must include the OMB Control Humanitarian Affairs, Office of Policy DEPARTMENT OF JUSTICE Number 1615–0067 in the body of the and Strategy, U.S. Citizenship and submission. Note: Comments received Immigration Services, 20 Massachusetts Executive Office for Immigration on the information collection that are Ave. NW, Washington, DC 20529; Review intended as comments on the proposed telephone (202) 272–8377. rulemaking rather than those specific to SUPPLEMENTARY INFORMATION: 8 CFR Parts 1003, 1208, and 1235 the collection of information will be I. Public Participation rejected. [EOIR Docket No. 18–0002; A.G. Order No. Interested persons are invited to 4714–2020] ADDRESSES: If you wish to provide participate in this rulemaking by comments regarding this rulemaking, RIN 1125–AA94 submitting written data, views, or you must submit comments, identified arguments on all aspects of this rule via Procedures for Asylum and by the agency name and reference RIN one of the methods and by the deadline Withholding of Removal; Credible Fear 1125–AA94 or EOIR Docket No. 18– stated above. All comments must be and Reasonable Fear Review 0002, by one of the two methods below. • submitted in English, or accompanied Federal eRulemaking Portal: http:// by an English translation. The AGENCY: Executive Office for www.regulations.gov. Follow the Departments also invite comments that Immigration Review, Department of website instructions for submitting Justice; U.S. Citizenship and relate to the economic, environmental, comments. or federalism effects that might result Immigration Services, Department of • Mail: Paper comments that from this rule. Comments that will Homeland Security. duplicate an electronic submission are provide the most assistance to the ACTION: Joint notice of proposed unnecessary. If you wish to submit a Departments in developing these rulemaking. paper comment in lieu of electronic procedures will reference a specific submission, please direct the mail/ portion of the rule; explain the reason SUMMARY: The Department of Justice and shipment to: Lauren Alder Reid, the Department of Homeland Security for any recommended change; and Assistant Director, Office of Policy, include data, information, or authority (collectively, ‘‘the Departments’’) Executive Office for Immigration propose to amend the regulations that support such recommended change. Review, 5107 Leesburg Pike, Suite 1800, Please note that all comments governing credible fear determinations Falls Church, VA 22041. To ensure so that individuals found to have such received are considered part of the proper handling, please reference the public record and made available for a fear will have their claims for asylum, agency name and RIN 1125–AA94 or withholding of removal under section public inspection at http:// EOIR Docket No. 18–0002 on your www.regulations.gov. Such information 241(b)(3) of the Immigration and correspondence. Mailed items must be Nationality Act (‘‘INA’’ or ‘‘the Act’’) includes personally identifying postmarked or otherwise indicate a information (such as your name, (‘‘statutory withholding of removal’’), or shipping date on or before the protection under the regulations issued address, etc.) voluntarily submitted by submission deadline. the commenter. If you want to submit pursuant to the legislation Collection of information. You must personally identifying information (such implementing the Convention Against submit comments on the collection of as your name, address, etc.) as part of Torture and Other Cruel, Inhuman or information discussed in this notice of your comment, but do not want it to be Degrading Treatment or Punishment proposed rulemaking to both the posted online, you must include the (‘‘CAT’’), adjudicated by an immigration rulemaking docket and the Office of phrase ‘‘PERSONALLY IDENTIFIABLE judge within the Executive Office for Management and Budget’s (OMB) Office INFORMATION’’ in the first paragraph Immigration Review (‘‘EOIR’’) in of Information and Regulatory Affairs of your comment and identify what streamlined proceedings (rather than in (OIRA). All such submissions received information you want redacted. proceedings under section 240 of the must include the OMB Control Number If you want to submit confidential Act), and to specify what standard of 1615–0067 in the body of the business information as part of your review applies in such streamlined submission. OIRA submissions can be comment, but do not want it to be proceedings. The Departments further sent using any of the following methods. posted online, you must include the propose changes to the regulations • Email (preferred): DHSDeskOfficer@ phrase ‘‘CONFIDENTIAL BUSINESS regarding asylum, statutory withholding omb.eop.gov (include the docket INFORMATION’’ in the first paragraph of removal, and withholding and number and ‘‘Attention: Desk Officer for of your comment. You must deferral of removal under the CAT U.S. Citizenship and Immigration prominently identify the confidential regulations. The Departments also Services, DHS’’ in the subject line of the business information to be redacted propose amendments related to the email). within the comment. If a comment has standards for adjudication of • Fax: 202–395–6566. so much confidential business • applications for asylum and statutory Mail: Office of Information and information that it cannot be effectively withholding. Regulatory Affairs, Office of redacted, all or part of that comment DATES: Written or electronic comments Management and Budget, 725 17th may not be posted on http:// on the notice of proposed rulemaking Street NW, Washington, DC 20503; www.regulations.gov. must be submitted on or before July 15, Attention: Desk Officer, U.S. Citizenship Personally identifying information 2020. Written comments postmarked on and Immigration Services, DHS. located as set forth above will be placed or before that date will be considered FOR FURTHER INFORMATION CONTACT: in the agency’s public docket file, but timely. The electronic Federal Docket Lauren Alder Reid, Assistant Director, not posted online. Confidential business Management System will accept Office of Policy, Executive Office for information identified and located as set

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forth above will not be placed in the permanent procedure for the admission classes of aliens 4—who are found to be public docket file. The Departments and protection of refugees, generally inadmissible under either section may withhold from public viewing defined in domestic law as: 212(a)(6)(C) of the INA, 8 U.S.C. information provided in comments that any person who is outside of any country of 1182(a)(6)(C), regarding material they determine may affect the privacy of such person’s nationality * * * and who is misrepresentations, or section 212(a)(7) an individual or is offensive. For unable or unwilling to return to, and is of the INA, 8 U.S.C. 1182(a)(7), additional information, please read the unable or unwilling to avail himself or regarding documentation requirements Privacy Act notice that is available via herself of the protection of, that country for admission, may be ‘‘removed from the link in the footer of http:// because of persecution or a well-founded fear the United States without further www.regulations.gov. To inspect the of persecution on account of race, religion, hearing or review unless the alien nationality, membership in a particular social agency’s public docket file in person, group, or political opinion. indicates either an intention to apply for you must make an appointment with the asylum under section [208 of the INA, agency. Please see the FOR FURTHER Refugee Act, sec. 201(a), 94 Stat. at 102 8 U.S.C. 1158,] or a fear of persecution.’’ INFORMATION CONTACT paragraph above (codified at section 101(a)(42) of the INA 235(b)(1)(A)(i), 8 U.S.C. for agency contact information. INA, 8 U.S.C. 1101(a)(42)). Those five 1225(b)(1)(A)(i).5 Among other things, grounds are the sole grounds for asylum expedited removal is an administrative II. Discussion 1 and refugee status. process that allows for the fair and Since World War II, the United States A. Expedited Removal and Screenings efficient removal of aliens who have has sought a comprehensive solution to in the Credible Fear Process made no claims regarding asylum or a the issues surrounding the admission of fear of return or, if they have, have not refugees into the country and the 1. Asylum-and-Withholding-Only established a fear of persecution or protection of refugees from return to Proceedings 2 for Aliens With Credible torture, without requiring lengthy and persecution. As an expression of a Fear resource-intensive removal proceedings nation’s foreign policy, the laws and In the Illegal Immigration Reform and in immigration court. policies surrounding asylum are an Immigrant Responsibility Act of 1996, Pursuant to statute and regulations, assertion of a government’s right and Public Law 104–208, div. C, 110 Stat. DHS implements a screening process, duty to protect its own resources and 3009, 3009–546 (‘‘IIRIRA’’), Congress citizens, while aiding those in true need established the expedited removal 1102, 116 Stat. at 2274 (codified at INA 103(g)(1), of protection from harm. See, e.g., process, thus establishing two primary 8 U.S.C. 1103(g)(1)); see 6 U.S.C. 521. Furthermore, Kleindienst v. Mandel, 408 U.S. 753, the Attorney General is authorized to ‘‘establish types of proceedings for determining the such regulations, prescribe such forms of bonds, 765 (1972) (‘‘In accord with ancient removability of an alien from the United reports, entries, and other papers, issue such principles of the international law of States: (1) Expedited removal instructions, review such administrative determinations in immigration proceedings, nation-states, * * * the power to proceedings under section 235(b)(1) of exclude aliens is inherent in delegate such authority, and perform such other the INA, 8 U.S.C. 1225(b)(1), and (2) acts as the Attorney General determines to be sovereignty, [and] necessary for removal proceedings under section 240 necessary for carrying out this section.’’ HSA, sec. maintaining normal international of the INA, 8 U.S.C. 1229a (‘‘section 240 1102, 116 Stat. at 2274 (codified at INA 103(g)(2), 8 U.S.C. 1103(g)(2)). relations and defending the country proceedings’’). against foreign encroachments and 4 DHS has designated the following additional First, section 235 of the INA, 8 U.S.C. categories of aliens, if inadmissible under sections dangers * * * .’’ (internal citations and 1225, contains the procedures for 212(a)(6)(C) or 212(a)(7) of the Act, 8 U.S.C. quotation marks omitted)). expedited removal. Under expedited 1182(a)(6)(C) or 1182(a)(7), as subject to expedited In the Refugee Act of 1980 (‘‘Refugee removal: (1) Aliens who are apprehended in the removal, aliens arriving in the United United States within 100 air miles of the border, Act’’), Public Law 96–212, 94 Stat. 102, States—and, in the discretion of the Congress furthered implementation of who have not been admitted or paroled, and who Secretary of Homeland Security cannot affirmatively show that they have been the United Nations Protocol Relating to (‘‘Secretary’’),3 certain other designated continuously physically present in the United the Status of Refugees (‘‘Refugee States for the 14-day period prior to apprehension, Protocol’’), Jan. 31, 1967, 19 U.S.T. see Designating Aliens For Expedited Removal, 69 2 These proceedings have also been referred to as FR 48877 (Aug. 11, 2004); and (2) aliens who 6223, 606 U.N.T.S. 268, providing for a ‘‘asylum-only’’ proceedings in other contexts. See, arrived in the United States between ports of entry e.g., Matter of D–M–C–P–, 26 I&N Dec. 644, 645 (BIA by sea, who have not been admitted or paroled, and 1 As a prefatory matter, the Departments note that 2015) (‘‘The applicant expressed a fear of returning who cannot affirmatively show that they have been portions of this rule, in accordance with well- to Argentina, and on June 23, 2011, his case was continuously physically present in the United established administrative law principles, would referred to the Immigration Court for asylum-only States for the two-year period prior to the supersede certain interpretations of the immigration proceedings * * * .’’). This NPRM uses the phrase determination of inadmissibility, see Notice laws by federal courts of appeals: The Supreme ‘‘asylum-and-withholding-only proceedings’’ to Designating Aliens Subject to Expedited Removal Court has ‘‘also made clear that administrative ensure that the forms of relief and protection Under Section 235(b)(1)(A)(iii) of the Immigration agencies are not bound by prior judicial available are more accurately described. and Nationality Act, 67 FR 68924 (Nov. 13, 2002). interpretations of ambiguous statutory 3 The Homeland Security Act of 2002 (‘‘HSA’’), On July 23, 2019, DHS announced it would expand interpretations, because there is ‘a presumption that Public Law 107–296, 116 Stat. 2135, as amended, the application of expedited removal to aliens (not Congress, when it left ambiguity in a statute meant charged the Secretary ‘‘with the administration and included in the additional categories established in for implementation by an agency, understood that enforcement of this chapter [titled, ‘Immigration 2002 and 2004) who are inadmissible under the ambiguity would be resolved, first and foremost, and Nationality’] and all other laws relating to the sections 212(a)(6)(C) or 212(a)(7) of the Act, 8 U.S.C. by the agency, and desired the agency (rather than immigration and naturalization of aliens’’ and 1182(a)(6)(C) or 1182(a)(7), who are apprehended the courts) to possess whatever degree of discretion granted the Secretary the power to take all actions anywhere in the United States, who have not been the ambiguity allows.’ ’’ Matter of R–A–, 24 I&N Dec. ‘‘necessary for carrying out’’ the provisions of the admitted or paroled, and who cannot affirmatively 629, 631 (A.G. 2008) (quoting Nat’l Cable & immigration and nationality laws. See HSA, sec. show that they have been continuously physically Telecomms. Ass’n v. Brand X Internet Servs., 545 1102, 116 Stat. at 2273–74; Consolidated present for the two-year period prior to the U.S. 967, 982 (2005) (internal quotation and Appropriations Resolution of 2003, Public Law determination of inadmissibility. See Designating citations omitted)). ‘‘A court’s prior judicial 108–7, div. L, sec. 105, 117 Stat. 11, 531 (codified Aliens for Expedited Removal, 84 FR 35409 (July construction of a statute trumps an agency at INA 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and 23, 2019). The U.S. District Court for the District of construction otherwise entitled to Chevron (3)). The HSA states that the Attorney General Columbia issued an injunction against the July 2019 deference only if the prior court decision holds that ‘‘shall have such authorities and functions under designation. Make the Road New York v. its construction follows from the unambiguous this chapter and all other laws relating to the McAleenan, 405 F. Supp. 3d 1 (D.D.C. 2019). terms of the statute and thus leaves no room for immigration and naturalization of aliens as were 5 Unaccompanied alien children, as defined in 6 agency discretion.’’ Brand X, 545 U.S. at 982. [previously] exercised by [EOIR], or by the Attorney U.S.C. 279(g)(2), are exempt from expedited Matter of A–B–, 27 I&N Dec. 316, 327 (A.G. 2018). General with respect to [EOIR] * * * .’’ HSA, sec. removal. See 8 U.S.C. 1232(a)(5)(D)(i).

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known as ‘‘credible fear’’ screening, to possibility of persecution or torture), the to section 235(b)(2), 8 U.S.C. 1225(b)(2), identify potentially valid claims for immigration judge will vacate the which does so require. See Henson v. asylum, statutory withholding of expedited removal order, and DHS will Santander Consumer USA, Inc., 137 S. removal, and protection under the initiate section 240 proceedings for the Ct. 1718, 1723 (2017) (‘‘differences in regulations issued pursuant to the alien. 8 CFR 1208.30(g)(2)(iv)(B). language [generally] convey differences legislation implementing CAT, Dec. 10, The INA, however, instructs only that in meaning’’). That negative inference is 1984, S. Treaty Doc. No. 100–20, 1465 an alien who is found to have a credible reinforced by the fact that aliens in U.N.T.S. 113,6 to prevent aliens placed fear ‘‘shall be detained for further expedited removal are expressly in expedited removal from being consideration of the application for excluded from the class of aliens removed to a country in which they asylum,’’ and neither mandates that an entitled to section 240 proceedings would face persecution or torture.7 alien who demonstrates a credible fear under section 235(b)(2)(A), 8 U.S.C. Currently, any alien who expresses a be placed in removal proceedings in 1225(b)(2)(A). See INA 235(b)(2)(B)(ii), 8 fear of persecution or torture, a fear of general nor in section 240 proceedings U.S.C. 1225(b)(2)(B)(ii). return, or an intention to apply for specifically. INA 235(b)(1)(B)(ii), 8 Second, an alien with a positive asylum during the course of the U.S.C. 1225(b)(1)(B)(ii). credible fear determination is entitled expedited removal process is referred to The relevant regulations regarding the only to a further proceeding related to a DHS asylum officer for an interview to credible fear process, and the interplay his or her ‘‘application for asylum.’’ INA determine if the alien has a credible fear between expedited removal and section 235(b)(1)(B)(ii), 8 U.S.C. of persecution or torture in the country 240 proceedings, were first 1225(b)(1)(B)(ii). An asylum of return. INA 235(b)(1)(A)(ii), (B), 8 implemented in 1997. Inspection and application’s purpose is to determine U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 Expedited Removal of Aliens; Detention whether the alien is entitled to relief or CFR 235.3(b)(4), 1235.3(b)(4)(i). If the and Removal of Aliens; Conduct of protection from removal, not whether asylum officer determines that the alien Removal Proceedings; Asylum the alien should be admitted or is does not have a credible fear of Procedures, 62 FR 10312 (Mar. 6, otherwise entitled to immigration persecution or torture (or, in certain 1997).8 At the time, the former benefits. See Matter of V–X–, 26 I&N instances, a reasonable possibility of Immigration and Naturalization Service Dec. 147, 150 (BIA 2013) (holding that, persecution or torture), the alien may (‘‘INS’’) explained that it was choosing ‘‘although [an alien’s] grant of asylum request that an immigration judge to initiate section 240 proceedings in confer[s] a lawful status upon him, it review that determination. See INA this context because the remaining [does] not entail an ‘admission’’’). By 235(b)(1)(B)(iii)(III), 8 U.S.C. provisions of section 235(b) of the Act, contrast, in section 240 proceedings, 1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), beyond those governing credible fear aliens generally may raise their 1208.30(g). review, were specific to aliens who do admissibility and their entitlement to Under the current regulatory not have a credible fear and because the various forms of relief or protection. framework, if the asylum officer statute was silent as to procedures for Compare INA 235(b)(1)(B)(ii), 8 U.S.C. determines that an alien subject to those who demonstrated such a fear. Id. 1225(b)(1)(B)(ii), with INA 240(c)(2)–(4), expedited removal proceedings has a at 10320. The INS’s analysis at the time 8 U.S.C. 1229a(c)(2)–(4). credible fear of persecution or torture was very limited. Moreover, the Departments believe, (or, in certain instances, a reasonable For several reasons, the Departments for the reasons described in this rule, possibility of persecution or torture), believe that section 235(b)(1), 8 U.S.C. that it is better policy to place aliens DHS places the alien before an 1225(b)(1), when compared with section with a positive credible fear immigration court for adjudication of 235(b)(2), 8 U.S.C. 1225(b)(2), may also determination in asylum-and- the alien’s claims by initiating section be read as permitting a procedure for withholding-only proceedings rather 240 proceedings. See 8 CFR 208.30(f), ‘‘further consideration of [an] than section 240 proceedings. 235.6(a)(1)(ii), 1235.6(a)(1)(i). Section application for asylum’’ that is separate DHS has prosecutorial discretion at 240 proceedings are often more detailed from section 240 proceedings. First, the outset to place an alien amenable to and provide additional procedural while section 235(b)(1), 8 U.S.C. expedited removal instead in section protections, including greater 1225(b)(1), mandates that an alien with 240 proceedings. See Matter of J–A–B– administrative and judicial review, than a positive credible fear determination & I–J–V–A–, 27 I&N Dec. 168, 170 (BIA expedited removal proceedings under receive ‘‘further consideration of [his or 2017) (‘‘The DHS’s decision to section 235 of the Act. Compare INA her] application for asylum,’’ section commence removal proceedings 235(b)(1), 8 U.S.C. 1225(b)(1), with INA 235(b)(2), 8 U.S.C. 1225(b)(2), mandates involves the exercise of prosecutorial 240, 8 U.S.C. 1229a. Similarly, if an that other classes of aliens receive ‘‘a discretion, and neither the Immigration immigration judge, upon review of the proceeding under section 1229a of this Judges nor the Board may review a asylum officer’s negative determination, title’’—i.e., section 240 of the INA, 8 decision by the DHS to forgo expedited finds that the alien possesses a credible U.S.C. 1229a. Compare INA removal proceedings or initiate removal fear of persecution or torture (or, in 235(b)(1)(B)(ii), 8 U.S.C. proceedings in a particular case.’’); certain instances, a reasonable 1225(b)(1)(B)(ii), with INA 235(b)(2)(A), Matter of E–R–M– & L–R–M–, 25 I&N 8 U.S.C. 1225(b)(2)(A). The difference in Dec. 520, 523 (BIA 2011). If DHS has 6 Because CAT is a non-self-executing treaty, see, language suggests that section 235(b)(1), exercised its discretion by initially commencing expedited removal e.g., Hui Zheng v. Holder, 562 F.3d 647, 655–56 (4th 8 U.S.C. 1225(b)(1), does not require use Cir. 2009), adjudicators do not apply CAT itself, but proceedings against an alien, placing of section 240 proceedings, in contrast rather the regulations issued pursuant to the that alien in section 240 proceedings implementing legislation, principally 8 CFR 1208.16(c)–1208.18. See Foreign Affairs Reform and 8 The 1997 rule amended, inter alia, part 208 of following the establishment of a Restructuring Act of 1998 (‘‘FARRA’’), Public Law title 8 of the CFR. Following the creation of DHS credible fear effectively negates DHS’s 105–277, sec. 2242(b), 112 Stat. 2681, 2681–822 in 2003 after the passage of the HSA, EOIR’s original discretionary decision. By (codified at 8 U.S.C. 1231 note). regulations were moved from Chapter I of Title 8 deciding that the alien was amenable to 7 Screening for fear of torture in the designated to Chapter V. Aliens and Nationality; Homeland country of removal is conducted not under section Security; Reorganization of Regulations, 68 FR 9824 expedited removal, DHS already 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), but (Feb. 28, 2003). Part 208 was subsequently determined removability, leaving only a instead under the CAT regulations. duplicated for EOIR at part 1208. Id. determination as to whether the

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individual is eligible for relief or and applicants for admission under the 2. Consideration of Precedent When entitled to protection from removal in Visa Waiver Program, among other Making Credible Fear Determinations in the form of asylum, statutory categories of aliens who are not entitled the ‘‘Credible Fear’’ Process withholding of removal, or protection by statute to section 240 proceedings. DOJ proposes to add language to 8 under the CAT regulations. Further, it is See 8 CFR 208.2(c)(1)(i)–(viii), CFR 1003.42(f) to specify that an evident that Congress intended the 1208.2(c)(1)(i)–(viii). Additionally, to immigration judge will consider expedited removal process to be ensure that these claims receive the applicable legal precedent when streamlined, efficient, and truly most expeditious consideration reviewing a negative fear determination. ‘‘expedited’’ based on the statutory reasonably possible, the Departments This instruction is in addition to those limits it placed on administrative propose to amend 8 CFR 208.5 and 8 currently in 8 CFR 1003.42 to consider review of expedited removal orders, CFR 1208.5 to require DHS to make the credibility of the alien’s statements INA 235(b)(1)(C), 8 U.S.C. 1225(b)(1)(C); available appropriate applications and and other facts of which the the temporal limits it placed on review relevant warnings to aliens in its immigration judge is aware. These of negative credible fear determinations custody who have expressed a fear in changes codify in the regulations the by immigration judges, INA the expedited removal process and current practice and provide a clear 235(b)(1)(B)(iii)(III), 8 U.S.C. received a positive determination. requirement to immigration judges that 1225(b)(1)(B)(iii)(III); and the limitations These ‘‘asylum-and-withholding- they must consider and apply all placed on judicial review of only’’ proceedings generally follow the applicable law, including administrative determinations made during the same rules of procedure that apply in precedent from the BIA, decisions of the expedited removal process, INA 242(e), section 240 proceedings, but the Attorney General, decisions of the 8 U.S.C. 1252(e). The current policy of immigration judge’s consideration is federal courts of appeals binding in the referring aliens who have established a limited solely to a determination on the jurisdiction where the immigration credible fear for section 240 proceedings alien’s eligibility for asylum, statutory judge conducting the review sits, and 9 runs counter to those legislative aims. withholding of removal, and decisions of the Supreme Court. Accordingly, DOJ proposes to amend withholding or deferral of removal 8 CFR 1003.1, 8 CFR 1003.42(f), 8 CFR under the CAT regulations (and, if the 3. Remove and Reserve DHS-Specific 1208.2, 8 CFR 1208.30, and 8 CFR alien is eligible for asylum, whether he Procedures From DOJ Regulations 1235.6—and DHS proposes to amend 8 or she should receive it as a matter of The Department of Justice proposes to CFR 208.2(c), 8 CFR 208.30(e)(5) and (f), discretion). 8 CFR 208.2(c)(3)(i), remove and reserve 8 CFR 1235.1, 8 CFR and 8 CFR 235.6(a)(1)—so that aliens 1208.2(c)(3)(i). If the immigration judge 1235.2, 8 CFR 1235.3, and 8 CFR 1235.5. who establish a credible fear of does not grant the alien asylum, When the Department first incorporated persecution, a reasonable possibility of statutory withholding of removal, or part 235 into 1235, it stated that ‘‘nearly persecution, or a reasonable possibility protection under the CAT regulations, all of the provisions * * * affect bond of torture and accordingly receive a the alien will be removed, although the hearings before immigration judges.’’ positive fear determination will appear alien may submit an appeal of a denied Aliens and Nationality; Homeland before an immigration judge for application for asylum, statutory Security; Reorganization of Regulations, ‘‘asylum-and-withholding-only’’ withholding of removal, or protection 68 FR 9824, 9826 (Feb. 28, 2003). Upon proceedings under 8 CFR 208.2(c)(1) under the CAT regulations to the Board further review, the Department has 10 11 and 8 CFR 1208.2(c)(1). Such of Immigration Appeals (‘‘BIA’’). determined that these sections regard proceedings will be adjudicated in the procedures that are specific to DHS’s same manner that currently applies to 11 DOJ proposes a technical correction to 8 CFR examinations of applicants for certain alien crewmembers, stowaways, 1003.1(b), which establishes the jurisdiction of the BIA, to correct the reference to 8 CFR 1208.2 in admission as set forth in 8 CFR 235.1, paragraph (b)(9) and ensure that the regulations 8 CFR 235.2, 8 CFR 235.3, and 8 CFR 9 In Matter of X–K–, 23 I&N Dec. 731 (BIA 2005)— accurately authorize BIA review in ‘‘asylum-and- 235.5, and do not need to be duplicated which the Attorney General recently overruled in withholding-only’’ proceedings. EOIR and the INS Matter of M–S–, 27 I&N Dec. 509 (A.G. 2019)—the amended 8 CFR part 208 in 1997 following the Board of Immigration Appeals noted in dicta that enactment of IIRIRA. Inspection and Expedited that the Departments intended to remove appeals although the INA ‘‘does not require that such aliens Removal of Aliens; Detention and Removal of from ‘‘asylum-and-withholding-only’’ proceedings be placed in full section 240 removal proceedings Aliens; Conduct of Removal Proceedings; Asylum from the BIA’s jurisdiction. In 2003, following the * * *, there is legislative history suggesting that Procedures, 62 FR 444 (Jan. 3, 1997). Two of the creation of DHS, EOIR’s regulations were this comports with the intent of Congress.’’ 23 I&N many changes made at the time were (1) amending transferred from chapter I to chapter V of 8 CFR and Dec. at 734 (citing H.R. Rep. No. 104–828, at 209 8 CFR 208.2(b) to set out immigration judges’ redesignated. Aliens and Nationality; Homeland (1996) (Conf. Rep.) (‘‘If the officer finds that the jurisdiction over asylum applications filed by aliens Security; Reorganization of Regulations, 68 FR alien has a credible fear of persecution, the alien not entitled to proceedings under section 240 of the 9824, 9830, 9834 (Feb. 28, 2003). Since EOIR and shall be detained for further consideration of the INA, 8 U.S.C. 1229a, and aliens who have been the INS amended 8 CFR 208.2(b) in 2000, the BIA application for asylum under normal non-expedited served, among other charging documents, a Notice has continued to exercise jurisdiction over appeals removal proceedings.’’). Although the notation in to Appear; and (2) amending 8 CFR 3.1(b)(9) to from asylum-and-withholding-only proceedings. the House Conference Report may be read as specifically state that the BIA has jurisdiction over See, e.g., Kanacevic v. I.N.S., 448 F.3d 129, 133 (2d supporting an interpretation of section 235(b) that asylum applications described at 8 CFR 208.2(b). Cir. 2006) (noting that the BIA summarily affirmed allows for the current policy, the statute certainly Inspection and Expedited Removal of Aliens; an immigration judge’s decision in a proceeding does not compel the current policy. Indeed, we Detention and Removal of Aliens; Conduct of under 8 CFR 208.2(c)(iii)); Matter of D–M–C–P–, 26 presume that Congress speaks most directly through Removal Proceedings; Asylum Procedures, 62 FR at I&N Dec. at 647 (holding that neither an its adopted statutory language, and, as explained 455, 462. In 2000, EOIR and the INS redesignated immigration judge nor the BIA has jurisdiction to above, that language actually clearly permits the use then-existing 8 CFR 208.2(b) into separate consider whether asylum-and-withholding-only of asylum-and-withholding-only proceedings, paragraphs 8 CFR 208.2(b) (regarding immigration proceedings were improvidently instituted). rather than section 240 proceedings. judges’ jurisdiction over aliens served, among other Accordingly, the Departments are now correcting 10 Under existing regulations, in proceedings charging documents, a Notice to Appear) and 8 CFR the reference at 8 CFR 1003.1(b)(9) to prevent under 8 CFR 208.2(c)(1) and 8 CFR 1208.2(c)(1), 208.2(c) (regarding immigration judges’ jurisdiction ambiguity regarding the BIA’s jurisdiction over aliens may pursue not only claims for asylum, but over asylum applications filed by aliens not entitled appeals from immigration judges’ decisions in also claims for ‘‘withholding or deferral of to removal proceedings under section 240 of the proceedings under 8 CFR 1208.2(c), including removal’’—which encompasses both statutory INA). Asylum Procedures, 65 FR 76121, 76122 (Dec. decisions in ‘‘asylum-and-withholding-only’’ withholding of removal, and withholding and 6, 2000). EOIR and the INS, however, failed to make proceedings involving aliens found to have a deferral of removal under the CAT regulations. 8 a corresponding update to 8 CFR 3.1(b)(9) to credible fear of persecution or reasonable CFR 208.2(c)(3)(i), 1208.2(c)(3)(i). This rule makes account for the change to the cross-referenced possibility of persecution or torture under the no change to that aspect of the existing regulations. paragraph 8 CFR 208.2(b). There is no indication proposed rule.

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in the regulations for EOIR in Chapter proposed country of removal. See 8 CFR or the Attorney General may grant V, except for the provisions in 8 CFR 208.16(c), 208.30(e)(3), 1208.16(c). The asylum to an alien who has applied for 1235.4 relating to the withdrawal of an ‘‘significant possibility’’ standard has asylum in accordance with the application for admission and 8 CFR been interpreted by DHS as requiring requirements and procedures 1235.6 relating to the referral of cases to that the alien ‘‘demonstrate a substantial established by the Secretary of an immigration judge. and realistic possibility of succeeding’’ Homeland Security or the Attorney General under this section * * * .’’); 4. Reasonable Possibility as the in immigration court. See Memorandum Standard of Proof for Statutory from John Lafferty, Chief, Asylum Div., INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); Withholding of Removal and Torture- U.S. Citizenship and Immigration Regulations Concerning the Convention Related Fear Determinations for Aliens Servs., Release of Updated Asylum Against Torture, 64 FR 8478, 8478 (Feb. in Expedited Removal Proceedings and Division Officer Training Course 19, 1999), as corrected by Regulations Stowaways (ADOTC) Lesson Plan, Credible Fear of Concerning the Convention Against Persecution and Torture Determinations Torture, 64 FR 13881 (Mar. 23, 1999) This rule also proposes clarifying and 2 (Feb. 28, 2014); see also Holmes v. (‘‘Under Article 3 [of CAT], the United raising the statutory withholding of Amerex Rent-A-Car, 180 F.3d 294, 297 States had agreed not to ‘expel, return removal screening standard and the (D.C. Cir. 1999) (stating in a non- (‘refouler’) or extradite’ a person to torture-related screening standard under immigration context that establishing a another state where he or she would be the CAT regulations for stowaways and significant possibility involves tortured * * * . The United States 12 aliens in expedited removal. demonstrating ‘‘a substantial and currently implements Article 33 of the Currently, fear screenings for aliens in realistic possibility of succeeding’’ Refugee Convention through the expedited removal proceedings and (quoting Holmes v. Amerex Rent-a-Car, withholding of removal provision in stowaways generally involve 710 A.2d 846, 852 (D.C. 1998))). The section 241(b)(3) * * * of the [INA] considering whether there is a Departments propose amending 8 CFR * * * .’’). FARRA provides that ‘‘the significant possibility that the alien can 208.30 and 8 CFR 1208.30 to raise the heads of the appropriate agencies shall establish, in a hearing on the merits, standard of proof in ‘‘credible fear’’ prescribe regulations to implement the eligibility for asylum, statutory screenings for aliens in expedited obligations of the United States under withholding of removal, or withholding removal proceedings and for stowaways Article 3’’ of CAT, ‘‘subject to any or deferral of removal under the CAT from a significant possibility that the reservations, understandings, regulations. See 8 CFR 208.30(e)(2)–(3). alien can establish eligibility for declarations, and provisos contained in Screening for protection under statutory statutory withholding of removal to a the United States Senate resolution of withholding of removal generally reasonable possibility that the alien ratification of [CAT].’’ FARRA, sec. involves considering whether there is a would be persecuted because of his or 2242(b), 112 Stat. at 2681–822. significant possibility that the alien her race, religion, nationality, Recently, DHS began to apply the could establish in a hearing that it is membership in a particular social group, ‘‘reasonable possibility’’ standard of more likely than not that he or she or political opinion. See 8 CFR 208.16, proof to determinations regarding would be persecuted on account of race, 208.30(e)(2), 1208.16. Similarly, for potential eligibility for statutory religion, nationality, membership in a aliens expressing a fear of torture, the withholding of removal and protection particular social group, or political Departments propose amending 8 CFR under the CAT regulations in ‘‘credible opinion, if removed to the proposed 208.30 and 8 CFR 1208.30 to raise the fear’’ screenings for aliens in expedited country of removal. See 8 CFR removal proceedings where an alien is 208.16(b), 208.30(e)(2), 1208.16(b). standard of proof from a significant found barred from asylum pursuant to 8 Currently, screening for protection possibility that the alien is eligible for CFR 208.13(c)(3)–(4). On November 9, under the CAT regulations generally withholding or deferral of removal 2018, the Departments issued an Interim involves considering whether the alien under the CAT regulations to a Final Rule (‘‘IFR’’) to provide that can establish that there is a significant reasonable possibility that the alien certain aliens described in 8 CFR possibility that he or she could establish would be tortured in the country of 208.13(c)(3) or 8 CFR 1208.13(c)(3) who that it is more likely than not that he or removal. See 8 CFR 208.18(a), entered the United States in she would be tortured if removed to the 208.30(e)(3), 1208.18(a). Congress has not required that contravention of a covered Presidential proclamation or order are barred from 12 A stowaway is defined in section 101(a)(49) of consideration of eligibility for asylum, the INA, 8 U.S.C. 1101(a)(49), as ‘‘any alien who statutory withholding of removal, and eligibility for asylum (hereinafter obtains transportation without the consent of the protection under the CAT regulations in referred to as the ‘‘Presidential owner, charterer, master or person in command of Proclamation Asylum Bar IFR’’). Under any vessel or aircraft through concealment aboard the ‘‘credible fear’’ screening process be such vessel or aircraft.’’ Further, ‘‘[a] passenger who considered in the same manner. In fact, that rule, claims for statutory boards with a valid ticket is not to be considered the ‘‘credible fear’’ screening process as withholding and protection under the a stowaway.’’ Id. The rules that apply to stowaways set forth in the INA makes no mention CAT regulations are analyzed under this relating to referrals for credible fear determinations ‘‘reasonable possibility’’ standard. See and review by an immigration judge are found in whatsoever of statutory withholding of section 235(a)(2) of the INA, 8 U.S.C. 1225(a)(2), removal or protection under the CAT Aliens Subject to a Bar on Entry Under which provides that: regulations. See INA 235(b)(1)(B), 8 Certain Presidential Proclamations; An arriving alien who is a stowaway is not U.S.C. 1225(b)(1)(B); see also FARRA, Procedures for Protection Claims, 83 FR eligible to apply for admission or to be admitted 55934 (Nov. 9, 2018).13 In addition, on and shall be ordered removed upon inspection by 112 Stat. at 2681–822; INA 103(a)(1), 8 an immigration officer. Upon such inspection if the U.S.C. 1103(a)(1) (‘‘The Secretary of 13 alien indicates an intention to apply for asylum Homeland Security shall be charged On December 19, 2018, the U.S. District Court under section 1158 of this title or a fear of for the Northern District of California enjoined the persecution, the officer shall refer the alien for an with the administration and Departments ‘‘from taking any action continuing to interview under subsection (b)(1)(B). A stowaway enforcement of [the INA] and all other implement the Rule’’ and ordered the Departments may apply for asylum only if the stowaway is found laws relating to the immigration and ‘‘to return to the pre-Rule practices for processing to have a credible fear of persecution under naturalization of aliens * * * .’’); INA asylum applications.’’ E. Bay Sanctuary Covenant v. subsection (b)(1)(B). In no case may a stowaway be Trump, 354 F. Supp. 3d 1094, 1121 (N.D. Cal. considered an applicant for admission or eligible 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) 2018). On February 28, 2020, the U.S. Court of for a hearing under section 1229a of this title. (‘‘The Secretary of Homeland Security Appeals for the Ninth Circuit affirmed the

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July 16, 2019, the Departments issued for asylum. See INA 235(b)(1)(B)(v), 8 (2d Cir. 2013); see also 8 CFR an IFR providing that certain aliens U.S.C. 1225(b)(1)(B)(v). 208.13(b)(2)(i)(B), 1208.13(b)(2)(i)(B). described in 8 CFR 208.13(c)(4) or 8 Under this rule, during ‘‘credible On the other hand, to be eligible for CFR 1208.13(c)(4) who enter, attempt to fear’’ screening interviews,15 asylum either statutory withholding of removal enter, or arrive in the United States officers would consider whether aliens or protection under the CAT across the southern land border on or could establish a credible fear of regulations, an alien must ultimately after such date, after transiting through persecution, a reasonable possibility of prove a ‘‘clear probability’’ of the at least one country outside the alien’s persecution, or a reasonable possibility relevant type of harm—i.e., that the country of citizenship, nationality, or of torture. Assessing a ‘‘credible fear of harm is more likely than not to occur— last lawful habitual residence en route persecution’’ for purposes of asylum upon return to his or her country. See to the United States, will be found claims would continue to involve Y.C., 741 F.3d at 333; 8 CFR 208.16(b)(2) ineligible for asylum unless they qualify considering whether there is a and (c)(2), 1208.16(b)(2) and (c)(2); see for certain exceptions (hereinafter significant possibility that the alien also E. Bay Sanctuary, 950 F.3d at 1277 referred to as the ‘‘Third Country could establish eligibility for asylum (‘‘A ‘clear probability’ of persecution or Transit Asylum Bar IFR’’). See Asylum under section 208 of the INA, 8 U.S.C. torture means that it is ‘more likely than Eligibility and Procedural 1158, as is currently provided in the not’ that applicants will be persecuted Modifications, 84 FR 33829 (July 16, regulations. See 8 CFR 208.30(e)(2). upon their removal.’’). Because an 2019). That IFR provides that if an alien However, under the proposed alien’s merits burden with respect to is found ineligible for asylum pursuant regulations, assessing a ‘‘reasonable claims for CAT protection and statutory to the bar, asylum officers will similarly possibility of persecution’’ would withholding of removal is higher than apply the ‘‘reasonable possibility’’ involve considering whether there is a that for a claim to asylum, it is standard to any statutory withholding of reasonable possibility that the alien reasonable for an alien’s associated removal or CAT regulation claims in the would be persecuted such that the alien screening burden to be correspondingly ‘‘credible fear’’ screening context. See should be referred to a hearing in higher than for an asylum claim. id. at 33837.14 immigration court to adjudicate However, under the current regulations, This proposed rule would expand the eligibility for statutory withholding of an asylum officer conducting an Departments’ application of the removal. See 8 CFR 208.16(b), interview under 8 CFR 208.30 ‘‘reasonable possibility’’ standard of 1208.16(b). determines whether there is a proof. Specifically, the standard of proof Meanwhile, under this proposed rule, ‘‘significant possibility’’ that the alien in the ‘‘credible fear’’ screening process assessing a reasonable possibility of would be eligible for statutory for statutory withholding of removal torture would involve considering withholding of removal or protection and protection under the CAT whether there is a reasonable possibility under the CAT regulations. 8 CFR regulations would be raised from a that the alien would be tortured such 208.30(e)(2)–(3). In other words, the significant possibility that the alien can that the alien should be referred for a asylum officer applies the same establish eligibility for such relief or hearing in immigration court to screening standard for fear of protection to a reasonable possibility adjudicate potential eligibility for persecution under asylum and statutory that the alien would be persecuted or protection under the CAT regulations. withholding of removal and fear of tortured. See 8 CFR 208.16, 208.30(e)(2), See 8 CFR 208.16(c), 1208.16(c). torture under the CAT regulations, 1208.16; see also 8 CFR 208.30(e)(3) Consistent with existing regulations, if despite the fact that ultimate success on (currently employing a ‘‘significant the alien is referred to immigration the merits requires differing standards possibility’’ standard), 8 CFR 208.18(a) court after receiving a positive fear of proof. and 1208.18(a) (defining torture). For determination, the immigration judge The decision to adopt such a aliens expressing a fear of persecution, applies a ‘‘more likely than not’’ regulatory scheme was made on the the standard of proof in the screening standard to the claims for statutory assumption that it would not ‘‘disrupt[] remains unchanged regarding asylum withholding of removal and protection the streamlined process established by eligibility, i.e., a significant possibility under the CAT regulations. See 8 CFR Congress to circumvent meritless that the alien could establish eligibility 1208.16–1208.17. claims.’’ Regulations Concerning the To be eligible for asylum under Convention Against Torture, 64 FR at injunction. E. Bay Sanctuary Covenant v. Trump, section 208 of the INA, 8 U.S.C. 1158, 8485. 950 F.3d 1242, 1284 (9th Cir. 2020). The But while the INA and the CAT Departments in this rule do not propose to make an alien must ultimately prove a any amendments that would implement the rule at ‘‘reasonable possibility’’ of persecution regulations authorize the Attorney issue in East Bay Sanctuary. upon return to his or her country. See, General and Secretary to provide for 14 On July 24, 2019, the U.S. District Court for the e.g., Y.C. v. Holder, 741 F.3d 324, 332 consideration of statutory withholding Northern District of California enjoined the of removal claims and claims for CAT Departments ‘‘from taking any action continuing to 15 protection together with asylum claims implement the Rule’’ and ordered the Departments The Departments recognize that, as a linguistic ‘‘to return to the pre-Rule practices for processing matter, it may seem strange to refer to a proceeding or other matters that may be considered asylum applications.’’ E. Bay Sanctuary Covenant v. in which a reasonable possibility standard is in removal proceedings, the INA does Barr, 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019). On applied as a ‘‘credible fear’’ screening. But the not mandate that approach, see, e.g., 8 August 16, 2019, the U.S. Court of Appeals for the Departments have elected to retain the ‘‘credible U.S.C. 1103(a)(1) and 1225(b)(1); cf. Foti Ninth Circuit issued a partial stay of the fear’’ nomenclature because the relevant statutory preliminary injunction so that the injunction provision is titled ‘‘removal without further review v. INS, 375 U.S. 217, 229–30 & n.16 remained in force only in the Ninth Circuit. E. Bay if no credible fear of persecution,’’ INA (1963) (emphasizing that administrative Sanctuary Covenant v. Barr, 934 F.3d 1026, 1028 235(b)(1)(B)(iii), 8 U.S.C. 1225(b)(1)(B)(iii), and for regulations and procedure may broaden (9th Cir. 2019). On September 9, 2019, the district continuity and for ease of distinguishing or narrow the subject matter within a court then reinstated the nationwide scope of the proceedings conducted under 8 CFR 208.30 from injunction. 391 F.Supp.3d 974. Two days later, the those conducted under 8 CFR 208.31. Moreover, court’s scope of review, including Supreme Court stayed the district court’s this change is consistent with the Departments’ IFR review of orders denying voluntary injunction. Barr v. East Bay Sanctuary Covenant, in 2018 that employed a reasonable possibility departure or withholding or removal), or 140 S. Ct. 3 (2019). The Departments do not propose standard in the context of a credible fear screening that they be considered in the same to make any amendments in this rule that would for aliens subject to certain Presidential modify the substance of the rule at issue in that proclamations. See Presidential Proclamation manner. This rule would end the litigation. Asylum Bar IFR, 83 FR at 55943. current approach and require asylum

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officers conducting interviews under 8 providing ‘‘fair and efficient screenings apply to different CFR 208.30 to assess whether the procedures’’ in reasonable fear populations of aliens. Currently, DHS interviewed aliens can establish a screening that would comport with U.S. asylum officers conduct screenings credible fear of persecution in asylum international obligations). under a ‘‘credible fear’’ standard for, claims, a reasonable possibility of Significantly, when establishing the inter alia, stowaways and aliens in persecution in statutory withholding of ‘‘reasonable fear’’ screening process, expedited removal proceedings who removal claims, and a reasonable DOJ explained that the two affected express a fear of persecution or torture, possibility of torture in claims under the categories of aliens should be screened a fear of return, or an intention to apply CAT regulations. based on the higher reasonable fear for asylum. See 8 CFR 208.30(a), The Departments’ proposal to raise standard because, ‘‘[u]nlike the broad 1208.30(a). DHS asylum officers the standards of proof for assessing class of arriving aliens who are subject conduct screenings under a ‘‘reasonable potential eligibility for statutory to expedited removal, these two classes fear’’ standard for aliens who express a withholding of removal and of aliens are ineligible for asylum,’’ and fear of persecution or torture and who withholding or deferral of removal may be entitled only to statutory have been issued an administrative under the CAT regulations in the withholding of removal or protection removal order under section 238 of the ‘‘credible fear’’ screening context falls under the CAT regulations. Regulations INA, 8 U.S.C. 1228, due to an aggravated within the scope of the authority that Concerning the Convention Against felony conviction or who are subject to Congress has granted to the Secretary Torture, 64 FR at 8485. ‘‘Because the a reinstated removal order under section and the Attorney General to carry out standard for establishing the likelihood 241(a)(5) of the INA, 8 U.S.C. 1231(a)(5). immigration and nationality laws. See of harm related to these forms of See 8 CFR 208.31(a), 1208.31(a). HSA; FARRA; INA 241(b)(3)(A), 8 protection (a clear probability of Accordingly, the Departments seek to U.S.C. 1231(b)(3)(A) (allowing the persecution or torture) is significantly make technical edits by using the term Attorney General to ‘‘decide[ ]’’ whether higher than the standard for asylum (a ‘‘reasonable possibility’’ as the legal an ‘‘alien’s life or freedom would be well-founded fear of persecution), the standard and using ‘‘reasonable fear’’ threatened’’ before directing removal of screening standard adopted for initial only to refer to proceedings under 8 CFR the alien); Regulations Concerning the consideration of withholding and 208.31 and 8 CFR 1208.31. Use of the Convention Against Torture, 64 FR at deferral requests in these contexts is term ‘‘reasonable possibility’’ rather 8478, as corrected by Regulations also higher.’’ Id. than the term ‘‘reasonable fear’’ when Concerning the Convention Against The standard’s long use evidences discussing statutory withholding of Torture, 64 FR 13881 (Mar. 23, 1999). that it is consistent with the United removal and CAT protection screening Moreover, raising the standards of proof States’ non-refoulement obligations and determinations under 8 CFR 208.30, 8 to a ‘‘reasonable possibility’’ during would not prevent aliens entitled to CFR 1208.30, and 8 CFR 1003.42 will screening for statutory withholding of protection under the CAT regulations prevent confusion over which type of removal and withholding and deferral of from receiving it. Drawing on the analysis is at issue. removal under the CAT regulations established framework for considering In conjunction with the edits better aligns the initial screening whether to grant statutory withholding proposed to DHS’s regulation in 8 CFR standards of proof with the higher of removal or CAT protection in the 208.30, DOJ proposes edits to 8 CFR standards used to determine whether reasonable fear context, this rule would 1208.30 related to the legal standard of aliens are in fact eligible for these forms establish a bifurcated screening process review. Currently, after an asylum of protection before immigration judges. in which aliens subject to expedited officer determines that an alien lacks a Unlike in the context of asylum removal will be screened for asylum credible fear of persecution or torture, determinations, in which the ‘‘well- under the ‘‘significant possibility’’ the regulation provides that an founded fear’’ standard is used, both in standard, and screened for statutory immigration judge in EOIR then reviews the statutory withholding and CAT withholding of removal or CAT that determination under the credible withholding or deferral of removal protection under the ‘‘reasonable fear standard. 8 CFR 208.30(g), contexts, immigration judges apply the possibility’’ standard. 1208.30(g). DHS’s proposed ‘‘reasonable higher ‘‘more likely than not’’ standard. The Departments also propose to possibility’’ screening standard for See 8 CFR 1208.16–1208.17. amend 8 CFR 208.30, 8 CFR 1208.30, statutory withholding of removal and The ‘‘reasonable possibility’’ standard and 8 CFR 1003.42 to refer to the CAT protection claims is a mismatch for has long been used for fear screenings of aliens in expedited EOIR’s current regulation, which does determinations made under 8 CFR removal proceedings and of stowaways not provide for a reasonable possibility 208.31 and 8 CFR 1208.31, which cover for statutory withholding of removal as review process in the expedited removal certain classes of aliens who are ‘‘reasonable possibility of persecution’’ context. Therefore, DOJ proposes to ineligible for asylum but who are determinations and the screening for modify 8 CFR 1208.30(g) to clarify that eligible for statutory withholding of withholding and deferral of removal credible fear of persecution removal and protection under the CAT under the CAT regulations as determinations will continue to be regulations. See 8 CFR 208.31(a) and (c), ‘‘reasonable possibility of torture’’ reviewed under a ‘‘credible fear’’ 1208.31(a) and (c); see also INA determinations, in order to avoid standard, but screening determinations 238(b)(5), 8 U.S.C. 1228(b)(5); INA confusion between the different for eligibility for statutory withholding 241(a)(5), 8 U.S.C. 1231(a)(5). ‘‘This standards of proof. By proposing these of removal and protection under the * * * screening process is modeled on amendments, the Departments seek to CAT regulations will be reviewed under the credible-fear screening process, but maintain operational efficiency by a ‘‘reasonable possibility’’ standard. requires the alien to meet a higher differentiating between screenings for Additionally, to clarify terminology in screening standard.’’ Regulations forms of relief, including asylum under 8 CFR 208.30(d)(2), mention of the Form Concerning the Convention Against 8 CFR 208.30, and screenings for only M–444, Information about Credible Fear Torture, 64 FR at 8485; see also Garcia statutory withholding of removal and Interview in Expedited Removal Cases, v. Johnson, No. 14–CV–01775, 2014 WL withholding and deferral of removal would be replaced with mention of 6657591, at *2 (N.D. Cal. Nov. 21, 2014) under the CAT regulations under 8 CFR relevant information regarding the (describing the aim of the regulations as 208.31, because, as noted above, the two ‘‘credible fear’’ screening process. This

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change would clarify that DHS may For a number of reasons, the and practice, and allows relevant relay information regarding screening Departments do not believe that this parties, including aliens, consultants, for a reasonable possibility of change would implicate reliance and legal representatives, to better persecution and a reasonable possibility interests. First, the ultimate eligibility understand the standard of proof that of torture, in addition to a credible fear standards remain the same. Second, it is applies to credible fear of persecution of persecution. exceedingly unlikely that aliens seek claims. This definition is also consistent Under the proposed rule, the burden statutory withholding of removal or with congressional intent. The 104th is on the alien to show that there is a protection under the CAT regulations Congress chose a screening standard reasonable possibility that he or she based on the applicable standard of ‘‘intended to be a low screening would be persecuted because of his or proof. Third, the proposed change standard for admission into the usual her race, religion, nationality, would provide numerous benefits. full asylum process.’’ 142 Cong. Rec. membership in a particular social group, Raising the standards of proof to a S11491 (daily ed. Sept. 27, 1996) or political opinion if removed to the ‘‘reasonable possibility’’ for the (statement of Senate Judiciary country of removal. Similarly, the screening of aliens seeking statutory Committee Chairman Orrin Hatch). burden is on the alien to show there is withholding of removal and CAT Originally, the Senate bill had proposed a reasonable possibility that he or she protection would allow the Departments a ‘‘determination of whether the asylum would be tortured in the country of to better screen out non-meritorious claim was ‘manifestly unfounded,’ removal. As a result, the alien must claims and focus limited resources on while the House bill applied a demonstrate a reasonable possibility claims much more likely to be ‘significant possibility’ standard that he or she will suffer severe pain or determined to be meritorious by an coupled with an inquiry into whether suffering, whether physical or mental, immigration judge. Adopting a higher there was a substantial likelihood that in the country of removal and a standard for statutory withholding and the alien’s statements were true.’’ Id. In reasonable possibility that the feared CAT screenings would not hinder the IIRIRA, Congress then ‘‘struck a harm would fall within the definition of streamlined process envisioned for compromise by rejecting the higher torture set forth in 8 CFR 208.18(a)(1)– expedited removal. Asylum officers standard of credibility included in the (8) and 8 CFR 1208.18(a)(1)–(8). already receive extensive training and House bill.’’ Id. The House’s ‘‘significant A ‘‘reasonable possibility’’ standard is guidance on applying the ‘‘reasonable possibility’’ standard is lower than the equivalent to the ‘‘well-founded fear’’ possibility’’ standard in other contexts ‘‘more probable than not’’ language in standard in section 101(a)(42) of the because they are determining whether a the original House version. 142 Cong. Act, 8 U.S.C. 1101(a)(42), which is used reasonable possibility of persecution or Rec. H11081 (daily ed. Sept. 25, 1996) to determine ultimate eligibility for torture exists in reasonable fear (statement of House Judiciary determinations pursuant to 8 CFR Committee Chairman Henry Hyde). The asylum. See I.N.S. v. Stevic, 467 U.S. 208.31. In some cases, asylum officers proposed regulation is thus consistent 407, 424–25 (1984); 8 CFR would need to spend additional time with congressional intent because it 208.13(b)(2)(i)(B), 1208.13(b)(2)(i)(B). eliciting more detailed testimony from defines ‘‘significant possibility’’ in a The ‘‘well-founded fear’’ standard is aliens to account for the higher standard way that ensures that the standard does lower than the ‘‘more likely than not’’ of proof; however, the overall impact on not reach the level of more likely than standard ultimately required to establish the time asylum officers spend making not. Overall, DHS’s effort will contribute the likelihood of future harm for screening determinations would be to ensuring consistency in making statutory withholding of removal and minimal. The procedural aspects of credible fear of persecution protection under the CAT regulations. making screening determinations determinations. Indeed: ‘‘[o]ne can certainly have a well- regarding fear of persecution and of 5. Proposed Amendments to the founded fear of an event happening torture would remain largely the same. Credible Fear Screening Process when there is less than a 50% chance Moreover, using a higher standard of of the occurrence taking place.’’ INS v. proof in the screening context for those The Departments further propose to Cardoza-Fonseca, 480 U.S. 421, 431 seeking statutory withholding of amend 8 CFR 208.30, 8 CFR 1208.30, (1987). removal or protection under the CAT and 8 CFR 1003.42 to make several While lower than the ‘‘clear regulations in the immigration courts additional technical and substantive probability’’ standard governing the allows the Departments to more amendments regarding fear interviews, merits determination for statutory efficiently and promptly distinguish determinations, and reviews of withholding of removal and between aliens whose claims are more determinations. The Departments withholding and deferral of removal likely or less likely to ultimately be propose to amend 8 CFR 208.30(a) and under the CAT regulations, the meritorious. 8 CFR 1208.30(a) to clearly state that the ‘‘reasonable possibility’’ standard is a DHS also proposes in 8 CFR respective sections describe the well-established standard of proof that 208.30(e)(1) to interpret the ‘‘significant exclusive procedures applicable to is an appropriate screening standard to possibility’’ standard that Congress applicants for admission who are found identify those who have meaningful established in section 235(b)(1)(B)(v) of inadmissible pursuant to section claims to such protection. See Matter of the INA, 8 U.S.C. 1225(b)(1)(B)(v). 212(a)(6)(C) or 212(a)(7) of the Act, 8 Mogharrabi, 19 I&N Dec. 439, 440–46 DHS’s proposal would serve to promote U.S.C. 1182(a)(6)(C) or 1182(a)(7), and (BIA 1987) (distinguishing the greater clarity and transparency in receive ‘‘credible fear’’ interviews, ‘‘reasonable possibility’’ and ‘‘more credible fear of persecution determinations, and reviews under likely than not’’ standards). Determining determinations. section 235(b)(1)(B) of the Act, 8 U.S.C. a reasonable possibility of persecution As stated in proposed in 8 CFR 1225(b)(1)(B). does not rest on the statistical 208.30(e)(1), ‘‘significant possibility’’ DHS proposes to clarify the existing possibility of persecution, but rather on means a substantial and realistic ‘‘credible fear’’ screening process in whether the applicant’s fear is based on possibility of succeeding. As discussed proposed 8 CFR 208.30(b), which states facts that would lead a reasonable above, this proposed definition of that if an alien subject to expedited person in similar circumstances to fear ‘‘significant possibility’’ is consistent removal indicates an intention to apply persecution. See id. at 445. with both case law and existing policy for asylum or expresses a fear of

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persecution or torture, or a fear of alien is subject to one or more of the eliminate removal delays inherent in return, an inspecting officer shall not mandatory bars to being able to apply section 240 proceedings that serve no proceed further with removal until the for asylum under section 208(a)(2)(B)– purpose and eliminate the waste of alien has been referred for an interview (D) of the Act, 8 U.S.C. 1158(a)(2)(B)– adjudicatory resources currently with an asylum officer, as provided in (D), or the bars to asylum eligibility expended in vain. section 235(b)(1)(A)(ii) of the Act, 8 under section 208(b)(2) of the Act, 8 If an asylum officer determines, at the U.S.C. 1225(b)(1)(A)(ii). The proposed U.S.C. 1158(b)(2), including any ‘‘credible fear’’ screening stage, that an rule also states that the asylum officer eligibility bars established by regulation alien is subject to one or more would screen the alien for a credible under section 208(b)(2)(C) of the Act, 8 mandatory bars, the alien would, under fear of persecution and, as appropriate, U.S.C. 1158(b)(2)(C); 16 and (2) if so, this rule, be permitted to request review a reasonable possibility of persecution whether the bar at issue is also a bar to of that determination by an immigration or a reasonable possibility of torture, statutory withholding of removal and judge. See 8 CFR 208.30(g) (current), 8 and conduct an evaluation and withholding of removal under the CAT CFR 208.30(g) (proposed); see also INA determination in accordance with 8 CFR regulations.17 An alien who could 235(b)(1)(B)(iii)(III), 8 U.S.C. 208.9(c), which is consistent with establish a credible fear of persecution 1225(b)(1)(B)(iii)(III) (‘‘The Attorney current policy and practice. These or reasonable possibility of persecution General shall provide by regulation and proposals aim to provide greater but for the fact that he or she is subject upon the alien’s request for prompt transparency and clarity with regard to to one of the bars that applies to both review by an immigration judge of a fear screenings. asylum and statutory withholding of determination * * * that the alien does DHS also proposes to include removal would receive a negative fear not have a credible fear of consideration of internal relocation in determination, unless the alien could persecution.’’). the context of proposed 8 CFR establish a reasonable possibility of The bars to asylum eligibility are not 208.30(e)(1)–(3), which outline the torture, in which case he or she would identical to the bars to statutory procedures for determining whether be referred to the immigration court for withholding eligibility. Compare 8 aliens have a credible fear of asylum-and-withholding-only U.S.C. 1158(b)(2)(A)(i)–(vi) (bars to persecution, a reasonable possibility of proceedings. In those proceedings, the asylum eligibility), with 8 U.S.C. persecution, and a reasonable alien would have the opportunity to 1231(b)(3)(B)(i)–(iv) (bars to possibility of torture. Considering raise whether he or she was correctly withholding of removal eligibility). internal relocation in the ‘‘credible fear’’ identified as being subject to the bar(s) Under the proposed regulations, an screening context is consistent with to asylum and withholding of removal alien who is barred from asylum existing policy and practice, and the and also pursue protection under the eligibility could be found to have a regulations addressing internal CAT regulations. relocation at 8 CFR 208.16(c)(3)(ii) and Under the current regulations at 8 reasonable possibility of persecution in 8 CFR 1208.16(c)(3)(ii) (protection CFR 208.30(e)(5), aliens who establish a instances in which the alien is barred under the CAT regulations); 8 CFR credible fear of persecution or torture from asylum, but not likewise barred 208.13(b)(1)(i)(B) and 8 CFR but appear to be subject to one or more from statutory withholding. For 1208.13(b)(1)(i)(B) (asylum); and 8 CFR of the mandatory bars are referred for instance, if an alien is subject to the firm 208.16(b)(1)(i)(B) and 8 CFR section 240 proceedings. From an resettlement bar, the alien is barred from 1208.16(b)(1)(i)(B) (statutory administrative standpoint, it is pointless asylum eligibility, but not barred from withholding). The regulatory standard and inefficient to adjudicate claims for statutory withholding eligibility. In such that governs consideration of internal relief in section 240 proceedings when a case, if the alien demonstrated a relocation in the context of asylum and it is determined that an alien is subject reasonable possibility of persecution, statutory withholding of removal to one or more of the mandatory bars to the alien would be referred to the adjudications is different from the asylum or statutory withholding at the immigration judge for asylum-and- standard that considers internal screening stage. Accordingly, applying withholding-only proceedings. The relocation in the context of protection those mandatory bars to aliens at the proposed rule would ensure that if an under the CAT regulations. See ‘‘credible fear’’ screening stage would alien has established a significant generally Maldonado v. Lynch, 786 F.3d possibility of eligibility for asylum or a 1155, 1163 (9th Cir. 2015) (noting the 16 The following classes of aliens are ineligible for reasonable possibility of persecution marked difference between the asylum asylum: Aliens who (1) participated in certain types and is not barred from statutory of persecution; (2) have been convicted of a withholding eligibility, the alien can and CAT regulations concerning particularly serious crime; (3) have committed (or internal relocation). are reasonably believed to have committed) a appear before an immigration judge for In addition, the Departments propose serious nonpolitical crime outside the United consideration of the asylum, statutory to add asylum and statutory States; (4) are a danger to the security of the United withholding, and CAT claims. States; (5) are removable on terrorism-related Moreover, this process would retain a withholding eligibility bar grounds; or (6) were firmly resettled in another considerations in proposed 8 CFR country prior to arrival in the United States. INA mechanism for immigration judge 208.30(e)(1)(iii) and (e)(2)(iii), and 8 208(b)(2)(A)(i)–(vi), 8 U.S.C. 1158(b)(2)(A)(i)–(vi). review of the determination that the CFR 1003.42(d). Currently, 8 CFR The Secretary and the Attorney General may also alien is not eligible for asylum, as by regulation establish additional ineligibilities. required in section 235(b)(1)(B)(iii) of 208.30(e)(5)(i) provides that if an alien, INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). Together, other than a stowaway, is able to the bars in these two subparagraphs are commonly the Act, 8 U.S.C. 1225(b)(1)(B)(iii). establish a credible fear of persecution referred to as the mandatory bars to a grant of Thus, the proposed rule would or torture but also appears to be subject asylum. reasonably balance the various interests to one or more of the mandatory 17 The following classes of aliens are ineligible for at stake. It would promote efficiency by statutory withholding of removal: Aliens who (1) eligibility bars to asylum or statutory participated in certain types of persecution; (2) have avoiding duplicative administrative withholding of removal, then the alien been convicted of a particularly serious crime; (3) efforts while ensuring that those who will be placed in section 240 have committed (or are reasonably believed to have are subject to a mandatory bar receive proceedings. In proposed 8 CFR committed) a serious nonpolitical crime outside the an opportunity to have the asylum United States; or (4) are a danger to the security of 208.30(e)(5), DHS would require asylum the United States. INA 241(b)(3)(B)(i)–(iv), 8 U.S.C. officer’s finding reviewed by an officers to determine (1) whether an 1231(b)(3)(B)(i)–(iv). immigration judge.

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Additionally, under 8 CFR within the context of reasonable fear nature—and the alien must have 208.30(e)(5), DHS currently uses (or determinations. This proposal aligns received the notice required by section potentially would use, pending the with the Departments’ interest in the 208(d)(4)(A), 8 U.S.C. 1158(d)(4)(A), at resolution of litigation), a ‘‘reasonable expeditious resolution of fear claims, the time of filing.18 No penalty under fear’’ standard (identical to the with a focus on those claims that are this section will be imposed unless all ‘‘reasonable possibility’’ standard most likely to be meritorious. Given that three requirements are met. The term enunciated in this rule) in procedures the alien has been informed of his or her ‘‘knowingly’’ is not defined in either the related to aliens barred from asylum right to seek further review and given an statute or the current regulations. under the two previously mentioned opportunity to exercise that right, Consequently, the Departments propose IFRs, as described in 8 CFR referring an alien to an immigration to clarify that ‘‘knowingly’’ requires 208.13(c)(3)–(4). The Departments seek judge based on a refusal to indicate his either actual knowledge of the to make technical edits in proposed 8 or her desire places unnecessary and frivolousness or willful blindness CFR 208.30(e)(5), to change ‘‘reasonable undue burdens on the immigration toward it. Willful blindness means the fear’’ to ‘‘reasonable possibility’’ to align courts. alien was aware of a high probability the terminology with the proposed The Departments welcome comments that his or her application was frivolous changes in this rule. Similarly, DOJ on all aspects of these proposals, and deliberately avoided learning proposes to make technical edits in 8 including the use of asylum-and- otherwise. This standard is higher than CFR 1208.30(g)(1) and 8 CFR withholding-only proceedings, the mere recklessness or negligence and is 1003.42(d)—both of which refer to the definition of ‘‘significant possibility,’’ consistent with well-established legal ‘‘reasonable fear’’ standard in the and the raising of the standard for principles. See, e.g., Global-Tech current version of 8 CFR 208.30(e)(5)— statutory withholding of removal and Appliances, Inc. v. SEB S.A., 563 U.S. to change the ‘‘reasonable fear’’ torture-related determinations to 754, 769–70 (2011). The term language to ‘‘reasonable possibility.’’ ‘‘reasonable possibility.’’ ‘‘frivolous’’ is not defined in the INA.19 These edits are purely technical and Prior to the enactment of section would not amend, alter, or impact the B. Form I–589, Application for Asylum 208(d)(6) of the INA, 8 U.S.C. standard of proof applicable to the fear and for Withholding of Removal, Filing 1158(d)(6), a frivolous asylum screening process and determinations, Requirements application was defined for purposes of or review of such determinations, 1. Frivolous Applications granting employment authorization as associated with the aforementioned Frivolous asylum applications are a bars. 18 The asylum application, Form I–589, contains Additionally, in proposed 8 CFR costly detriment, resulting in wasted a written notice of the consequences of making a 208.2(c)(1), 8 CFR 1208.2(c)(1), 8 CFR resources and increased processing frivolous asylum application pursuant to section 208(d)(4)(A) of the INA, 8 U.S.C. 1158(d)(4)(A), and 235.6(a)(2), and 8 CFR 1235.6(a)(2), the times for an already overloaded immigration system. See Angov v. that notice is sufficient to satisfy the third Departments are making technical edits requirement of section 208(d)(6), 8 U.S.C. to replace the term ‘‘credible fear of Lynch, 788 F.3d 893, 901–02 (9th Cir. 1158(d)(6). See, e.g., Niang v. Holder, 762 F.3d 251, persecution or torture’’ with ‘‘a credible 2015) (‘‘[Immigration f]raud, forgery and 254–55 (2d Cir. 2014) (‘‘Because the written fear of persecution, reasonable fabrication are so common—and so warning provided on the asylum application alone difficult to prove—that they are is adequate to satisfy the notice requirement under possibility of persecution, or reasonable 8 U.S.C. 1158(d)(4)(A) and because Niang signed possibility of torture’’ to mirror the routinely tolerated. * * * [I]f an alien and filed his asylum application containing that terminology used in proposed 8 CFR does get caught lying or committing warning, he received adequate notice warning him 208.30 and 8 CFR 1208.30. Moreover, in fraud, nothing very bad happens to him. against filing a frivolous application.’’). Thus, every * * * Consequently, immigration fraud alien who signs and files an asylum application has proposed 8 CFR 1208.30(g)(2)(iv)(C), received the notice required by section 208(d)(4)(A) DOJ is making a technical edit to clarify is rampant.’’). Under section 208(d)(6) of of the INA, 8 U.S.C. 1158(d)(4)(A). that stowaways barred from asylum and the INA, 8 U.S.C. 1158(d)(6), ‘‘[i]f the 19 Depending on context, frivolous may mean, both statutory and CAT withholding of Attorney General determines that an inter alia, ‘‘[l]acking in high purpose; trifling, alien has knowingly made a frivolous trivial, and silly’’ or ‘‘[l]acking a legal basis or legal removal may still be eligible for deferral merit; manifestly insufficient as a matter of law.’’ of removal under the CAT regulations. application for asylum and the alien has Black’s Law Dictionary (11th ed. 2019). Frivolous The Departments further propose to received [the notice of privilege of filings abuse the judicial process. See Des Vignes v. amend 8 CFR 208.30(g) and 8 CFR counsel and the consequences of Dep’t of Transp., FAA, 791 F.2d 142, 146 (Fed. Cir. 1208.30(g)(2), which address procedures knowingly filing a frivolous 1986) (holding that frivolous filings abuse the judicial process by wasting the time and limited for negative fear determinations for application], the alien shall be resources of adjudicators, unnecessarily expend aliens in the expedited removal process. permanently ineligible for any benefits taxpayer resources, and deny the availability of Currently, 8 CFR 208.30(g) provides that under this chapter, effective as of the adjudicatory resources to deserving litigants). The when an alien receives notice of a date of a final determination on such Departments accordingly believe that ‘‘frivolous’’ is a term that is broad enough to encompass not only negative determination, the asylum application.’’ By current regulation, applications that are fraudulent, but also those that officer inquires whether the alien such frivolousness determinations may are plainly without legal merits. Both kinds of wishes to have an immigration judge only be made by an immigration judge applications seriously undermine the adjudicatory review the decision. If that alien refuses or the BIA. 8 CFR 208.20, 1208.20. process, yet although none of these conceptions of frivolousness is precluded by INA 208(d)(6), 8 to indicate whether he or she desires For the penalty in section 208(d)(6) of U.S.C. 1158(d)(6), not all of them are captured by such review, DHS treats this as a request the INA, 8 U.S.C. 1158(d)(6), to apply, the current regulatory definition of frivolousness. for review by an immigration judge. See there must be a finding that an alien There is no indication that Congress intended a also 8 CFR 1208.30(g)(2). In proposed 8 ‘‘knowingly made a frivolous narrow construction of 8 U.S.C. 1158(d)(6), and a narrow view of a frivolous asylum application is at CFR 208.30(g)(1), the Departments seek application for asylum’’ after receiving odds with its intent to discourage improper to treat an alien’s refusal to indicate the notice required by section applications. As discussed, infra, the proposed rule whether he or she desires review by an 208(d)(4)(A), 8 U.S.C 1158(d)(4)(A). In broadens the regulatory definition of a frivolous immigration judge as declining to other words, the alien’s asylum asylum application, provided the application was knowingly filed and the applicant received the request such review. Also, in proposed application must be frivolous, the appropriate notice, to more fully and accurately 8 CFR 208.31, the Departments will treat application must have been knowingly capture a broader spectrum of behavior that abuses a refusal as declining to request review made—i.e., knowing of its frivolous the judicial process.

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one that was ‘‘manifestly unfounded or compel a narrow definition limited in discouraging false claims. Not only abusive.’’ 8 CFR 208.7 (1995). solely to the deliberate fabrication of does it run contrary to numerous other Additional guidance interpreted material elements, though the penalty in federal court decisions upholding ‘‘frivolous’’ in this context to mean section 208(d)(6) of the INA, 8 U.S.C. frivolousness findings based on ‘‘patently without substance.’’ See 1158(d)(6), only applies if a frivolous fabricated evidence—see, e.g., Selami v. Grijalva v. Illchert, 815 F. Supp. 328, application is knowingly made—i.e., Gonzales, 423 F.3d 621, 626–27 (6th Cir. 331 (N.D. Cal. 1993) (summarizing prior with knowledge or willful blindness of 2005) (affirming a frivolousness finding regulatory and policy definitions of its frivolousness—after an alien has based on the submission of a fraudulent frivolousness before the current received notice of the consequences of newspaper article); Ursini v. Gonzales, definition was promulgated in 1997). filing a frivolous application. The 205 F. App’x 496, 497–98 (9th Cir. 2006) Subsequent to the enactment of section current regulatory definition of (affirming a frivolousness finding based 208(d)(6) of the INA, 8 U.S.C. ‘‘frivolous’’ related to asylum on the submission of false documents); 1158(d)(6), DOJ proposed defining a applications, which limits the concept Diallo v. Mukasey, 263 F. App’x 146, frivolous asylum application for of frivolousness to deliberate fabrication 150 (2d Cir. 2008) (affirming a purposes of that provision as one that of material elements, was promulgated frivolousness finding based on the ‘‘is fabricated or is brought for an in 1997 with the intent ‘‘to discourage submission of a fraudulent vaccination improper purpose’’ before settling on applicants from making patently false card); Shllaku v. Gonzales, 139 F. App’x the current definition of an application claims,’’ but it did not address other 700, 702–03 (6th Cir. 2005) (affirming a in which ‘‘any of its material elements types of frivolousness, such as abusive frivolousness finding based on the is deliberately fabricated.’’ Compare filings, filings for an improper purpose, submission of counterfeit documents)— Inspection and Expedited Removal of or patently unfounded filings, or but its potential to lead to absurd results Aliens; Detention and Removal of explain why these considerations of by allowing claims supported by Aliens; Conduct of Removal frivolousness were either no longer knowingly fabricated material evidence Proceedings; Asylum Procedures, 62 FR necessary or undesirable. Inspection to escape the penalty called for in INA 444, 468 (Jan. 3, 1997) (proposed rule), and Expedited Removal of Aliens; 208(d)(6), 8 U.S.C. 1158(d)(6), with Inspection and Expedited Removal Detention and Removal of Aliens; undermines the intent of that provision of Aliens; Detention and Removal of Conduct of Removal Proceedings; to discourage false claims. The proposed Aliens; Conduct of Removal Asylum Procedures, 62 FR at 468 rule would revise the current definition Proceedings; Asylum Procedures, 62 FR (proposing to define a frivolous of ‘‘frivolous’’ to broaden it and bring it 10312, 10344 (Mar. 6, 1997) (final rule). application as one that ‘‘is fabricated or more in line with prior understandings Although the final rule did not explain is brought for an improper purpose’’); of frivolous applications, including why DOJ altered its proposed definition Inspection and Expedited Removal of applications that are clearly unfounded, of ‘‘frivolous,’’ the proposed rulemaking Aliens; Detention and Removal of abusive, or involve fraud, and better noted that the purpose of a definition of Aliens; Conduct of Removal effectuate the intent of section 208(d)(6) ‘‘frivolous’’ was ‘‘to discourage Proceedings; Asylum Procedures, 62 FR of the INA, 8 U.S.C. 1158(d)(6), to applicants from making patently false at 10344 (ultimately defining an asylum discourage applications that make claims.’’ Inspection and Expedited application as frivolous if ‘‘any of its patently meritless or false claims. Removal of Aliens; Detention and material elements is deliberately Accordingly, the Departments propose to amend the definition of Removal of Aliens; Conduct of Removal fabricated,’’ but not explaining the basis ‘‘frivolous’’ to ensure that manifestly Proceedings; Asylum Procedures, 62 FR for the change). Consequently, the current, narrowly- unfounded or otherwise abusive claims at 447. In light of this regulatory drawn definition does not appear are rooted out and to ensure that definition, subsequent case law has sufficient to capture the full spectrum of meritorious claims are adjudicated more noted that ‘‘the term ‘fraudulent’ may be claims that would ordinarily be deemed efficiently so that deserving applicants more appropriate than the term ‘‘frivolous,’’ nor has it been fully receive benefits in a timely fashion. The ‘frivolous’ when applied to a successful in its stated intent of revised regulation also reflects questionable asylum application.’’ discouraging knowingly and patently Congress’s concern with applications Matter of Y–L–, 24 I&N Dec. 151, 155 n.1 false claims. This result can be seen in that are knowingly frivolous at the time (BIA 2007) (citing Barreto-Claro v. U.S. several cases where applications that of filing, regardless of whether an alien Att’y Gen., 275 F.3d 1334, 1339 n.11 one may ordinarily understand as subsequently retracts or withdraws the (11th Cir. 2001), which observed that ‘‘frivolous’’ are nonetheless not application. See INA 208(d)(4) and (6), ‘‘Fraudulent’’ would be a more captured by the current narrow 8 U.S.C. 1158(d)(4) and (6); Matter of X– appropriate modifier than ‘‘Frivolous’’ regulatory definition. See, e.g., Scheerer M–C–, 25 I&N Dec. 322, 325–27 (BIA in the statutory heading of section v. U.S. Att’y Gen., 445 F.3d 1311, 1317– 2010) (withdrawal of asylum 208(d)(6) of the INA, 8 U.S.C. 18 & n.10 (11th Cir. 2006) (reversing a application does not preclude finding 1158(d)(6)). In short, the concept of a frivolousness finding regarding a claim that the application is knowingly frivolous asylum application as based on alleged fear of persecution due frivolous); see also Kulakchyan v. understood by the Departments has to the applicant’s belief that the Holder, 730 F.3d 993, 996 (9th Cir. encompassed a number of different, Holocaust did not occur); L–T–M– v. 2013) (approving of Matter of X–M–C–); related concerns over the years—i.e., Whitaker, 760 F. App’x 498, 501 (9th Mei Juan Zheng v. Holder, 672 F.3d 178, applications that are unfounded, Cir. 2019) (fabricated material evidence, 184 (2d Cir. 2012) (same). abusive, improperly brought, fabricated, including fraudulent documentation, Existing regulations provide that or fraudulent—but not all of those are does not make an asylum application immigration judges and the BIA may necessarily represented in the current frivolous because the regulatory make findings that an alien has regulatory definition premised solely on definition of frivolousness requires the knowingly filed a frivolous asylum fabricated material elements. fabrication of an element and evidence application. See 8 CFR 208.20, 8 CFR The statutory text does not provide a is not an element). 1208.20. The Departments propose to definition of ‘‘frivolous,’’ expressly L–T–M–, in particular, demonstrates amend these regulations to allow restrict how it may be defined, or the limitations of the current definition asylum officers adjudicating affirmative

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asylum applications to make findings I&N Dec. 236, 242 (BIA 2010) (‘‘In address credibility and frivolousness that aliens have knowingly filed making an adverse credibility concerns during interviews with asylum frivolous asylum applications and to determination, the opportunity for applicants. Thus, asylum officers are refer the cases on that basis to explanation requires that an well equipped to adjudicate immigration judges (for aliens not in Immigration Judge not rely on frivolousness in the affirmative asylum lawful status) or to deny the inconsistencies that take a respondent context. applications (for aliens in lawful status). by surprise. See Ming Shi Xue v. BIA, Furthermore, the Departments’ For an alien not in lawful status, a 439 F.3d 111 (2d Cir. 2006) * * *. If an finding by an asylum officer that an inconsistency is obvious or glaring or proposed regulatory changes are asylum application is frivolous would has been brought to the attention of the consistent with congressional intent. not render an alien permanently respondent during the course of the When the 104th Congress amended the ineligible for immigration benefits hearing, however, there is no procedures used to consider asylum unless an immigration judge or the BIA requirement that a separate opportunity applications through IIRIRA, it sought subsequently makes a finding of for explanation be provided prior to ‘‘to reduce the likelihood that frivolousness upon de novo review of making the adverse credibility fraudulent or frivolous applications will the application as stated in the current determination. See Ye v. Dep’t of enable deportable or excludable aliens and proposed 8 CFR 208.20 and 8 CFR Homeland Sec., 446 F.3d 289 (2d Cir. to remain in the U.S. for substantial 1208.20. Asylum officers would apply 2006).’’). periods.’’ S. Rept. No. 104–249, at 2 the same definition used by immigration The proposed amendments to the (1996). Allowing asylum officers, in judges and the BIA as proposed by this regulations would give asylum officers a addition to immigration judges and the rule. Id. As this proposed rule would valuable and more targeted mechanism BIA, to find filings frivolous would help overrule Matter of Y–L–, and revise the for handling frivolous asylum deter aliens from filing frivolous asylum definition of ‘‘frivolous,’’ USCIS would applications. As noted above, when applications and reduce the likelihood not be required to provide opportunities referring cases to the immigration courts that aliens with frivolous applications for applicants to address discrepancies based on negative credibility will be released into the United States or implausible aspects of their claims in determinations, asylum officers may flag for substantial periods of time, usually all cases when the asylum officer issues related to frivolousness for with work authorization. determines that sufficient opportunity immigration judges to consider, but they The Departments also propose was afforded to the alien. As with any cannot refer frivolous cases or deny changes to 8 CFR 208.20 and 8 CFR other affirmative asylum case referred to applications solely on that basis. 1208.20 to expand and clarify what the immigration judge by an asylum Allowing asylum officers to refer or officer, the immigration judge would deny frivolous cases solely on that basis circumstances would require an review the asylum application de novo. would strengthen USCIS’s ability to root immigration judge or the BIA (and now By allowing asylum officers to find out frivolous applications more asylum officers) to find an asylum asylum applications to be frivolous, the efficiently, deter frivolous filings, and application to be knowingly frivolous.20 Departments seek to enhance the ultimately reduce the number of The proposed rule maintains the current officers’ ability to identify and frivolous applications in the asylum definition of ‘‘frivolous’’ such that if efficiently root out frivolous system. These amendments would help knowingly made, an asylum application applications, and to deter the filing of the Departments better allocate limited would be properly considered frivolous such applications in the first place. The resources and time and more if the adjudicator determines that it current practice for handling frivolous expeditiously adjudicate meritorious includes a fabricated material element. asylum applications at the affirmative asylum claims. The proposed rule also would provide, asylum application stage generally Moreover, under this proposed rule, if consistent with case law, that if involves asylum officers making an asylum officer identifies indicators of knowingly made, an asylum application negative credibility determinations. frivolousness in an asylum application, premised on false or fabricated Asylum officers may refer asylum the asylum officer would focus more evidence, unless it would be granted applications to the immigration courts during the interview on matters that without the fabricated evidence, may based on negative credibility findings, may be frivolous. And an immigration also be found frivolous.21 See, e.g., but not solely based on frivolousness. judge who receives an asylum Selami, 423 F.3d at 626–27; Ursini, 205 Making a credibility determination, application with a frivolousness finding positive or negative, involves by an asylum officer would have a more 20 For purposes of 8 CFR 208.20 and 8 CFR conducting an asylum interview. If the robust and developed written record 1208.20, an alien knowingly files a frivolous asylum asylum officer identifies credibility focused on frivolous material elements application if the alien filed the application concerns, such as inconsistencies or to help inform his or her ultimate knowing that it was frivolous intentionally and lack of detail, the asylum officer decision. Thus, an asylum officer’s voluntarily, and not because of ignorance, mistake, confronts the applicant with these finding that an application is frivolous accident, or carelessness, or the alien filed the application deliberately ignoring the fact that the concerns during the interview and gives would help improve the efficiency and application was frivolous. It is the alien’s duty to the applicant an opportunity to explain. integrity of the overall adjudicatory read the asylum application before signing it. If an If the asylum officer decides to make a process. alien acts through an agent, the alien will be negative credibility determination, the Asylum officers are well prepared to deemed responsible for actions of the agent if the officer prepares a written assessment put the proposed regulatory changes agent acts with apparent authority. If the alien has that explains the credibility concerns, into operation. They receive extensive signed the asylum application, he or she shall be such as inconsistencies, lack of detail, training on spotting indicators of presumed to have knowledge of its contents frivolousness, fraud, and credibility regardless of his or her failure to read and or both, and discusses the understand its contents. 8 CFR 208.3(c)(2), reasonableness of the applicant’s concerns, including on reviewing and 1208.3(c)(2). explanations and the relevancy of the assessing written materials that may 21 The submission of fabricated evidence may still credibility concerns to the claim. See raise such concerns. In addition, asylum be sufficient to deny the application, Matter of O– INA 208(b)(1)(B)(iii), 8 U.S.C. officers receive training on how to D–, 21 I&N Dec. 1079, 1083 (BIA 1998), but it will 1158(b)(1)(B)(iii); Matter of B–Y–, 25 appropriately identify, raise, and not warrant a frivolousness finding if the application without the evidence is also approvable.

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F. App’x at 497–98; Diallo, 263 F. App’x Removal of Aliens; Conduct of Removal will naturally have an opportunity to at 150; Shllaku, 139 F. App’x at 702–03. Proceedings; Asylum Procedures, 62 FR account for any issues during the alien’s Consistent with the concept of at 447 (proposing to define an removal proceeding if the alien so frivolousness as encompassing claims application as ‘‘frivolous’’ if, inter alia, chooses. Consequently, there is no legal that are patently without substance or it is ‘‘brought for an improper purpose’’ or operational reason to require a merit, an application, if knowingly in order to discourage applicants from second warning and a third or fourth made, would also be considered making false asylum claims).23 opportunity to address problematic frivolous if applicable law clearly Further, section 208(d)(4)(A) of the aspects of the claim that may warrant a prohibits the grant of asylum. Of course, INA, 8 U.S.C. 1158(d)(4)(A), requires sanction for frivolousness. simply because an argument or claim is that aliens receive notice of the The Departments note that the BIA unsuccessful does not mean that it can consequences of knowingly filing a has previously explained that ‘‘it would be considered frivolous. Matter of frivolous application. Under the be a good practice for an Immigration Cheung, 16 I&N Dec. 244, 245 (BIA proposed regulation, an immigration Judge who believes that an applicant 1977). Neither could reasonable judge would not need to provide an may have submitted a frivolous asylum arguments to extend, modify, or reverse additional opportunity to an alien to application to bring this concern to the the law as it stands. Cf. Fed. R. Civ. P. account for issues of frivolousness with attention of the applicant prior to the 11(b)(2) (‘‘By presenting to the court a the claim before determining that the conclusion of proceedings.’’ Matter of pleading, written motion, or other application is frivolous, as long as the Y–L–, 24 I&N Dec. at 159–60. In Matter paper—whether by signing, filing, required notice was provided. The of Y–L–, however, the BIA interpreted statute is clear on its face that the only submitting, or later advocating it—an the regulatory provision at 8 CFR procedural requirement for finding a attorney or unrepresented party certifies 1208.20, which provides that an EOIR frivolous asylum application to be that to the best of the person’s adjudicator may only make this finding knowingly made is the provision of knowledge, information, and belief, if he ‘‘is satisfied that the applicant, notice under section 208(d)(4)(A) of the formed after an inquiry reasonable during the course of the proceedings, INA, 8 U.S.C. 1158(d)(4)(A). See INA under the circumstances * * * the has had sufficient opportunity to 208(d)(6), 8 U.S.C. 1158(d)(6) (‘‘If the claims, defenses, and other legal account for any discrepancies or Attorney General determines that an contentions are warranted by existing implausible aspects of the claim.’’ Id. at alien has knowingly made a frivolous law or by a nonfrivolous argument for 159. There is no indication that the application for asylum and the alien has extending, modifying, or reversing BIA’s decision was meant to elaborate received the notice under paragraph existing law or for establishing new on any statutory procedural (4)(A), the alien shall be permanently law’’). Finally, if knowingly made, an requirements. Cf. Matter of B–Y–, 25 ineligible for any benefits under this application filed without regard to the I&N Dec. at 242 (‘‘When the required chapter * * *.’’); see also Ndibu v. merits of the claim would be considered frivolousness warnings have been given Lynch, 823 F.3d 229, 235 (4th Cir. 2016) frivolous. See Cooter & Gell v. Hartmax, to the respondent prior to the start of a (describing the statute as ‘‘clear and Corp., 496 U.S. 384, 398 (1990) (‘‘The merits hearing, the Immigration Judge is unambiguous’’). Furthermore, an alien filing of complaints, papers, or other not required to afford additional is on notice at the time of filing the motions without taking the necessary warnings or seek further explanation in application that it may be deemed care in their preparation is a separate regard to inconsistencies that have frivolous. Niang, 762 F.3d at 254–55 abuse of the judicial system, subject to become obvious to the respondent (‘‘Because the written warning provided separate sanction. * * * Baseless filing during the course of the hearing.’’). The on the asylum application alone is puts the machinery of justice in motion, proposed regulation does not contain adequate to satisfy the notice burdening courts and individuals alike the 8 CFR 208.20 or 8 CFR 1208.20 requirement under 8 U.S.C. with needless expense and delay.’’). provision because the Departments 1158(d)(4)(A) and because Niang signed Such a sanction is fully consistent with believe the current regulatory and filed his asylum application the abusive nature of such applications, framework has not successfully containing that warning, he received which are often filed for an ulterior achieved the Departments’ goal of adequate notice warning him against purpose, such as being placed in preventing knowingly frivolous filing a frivolous application.’’). Thus, removal proceedings, without regard to applications that delay the adjudication an alien is already aware of the potential the merits of the application itself. Cf. of other asylum applications that may ramifications of filing a frivolous Matter of Jaso and Ayala, 27 I&N Dec. merit relief. Moreover, an alien who application. Moreover, an alien—who 557, 558 (BIA 2019) (affirming the files an asylum application already both presumably knows whether his or her dismissal of immigration proceedings knows whether the application is application is fraudulent or meritless— where a respondent filed an asylum fraudulent or meritless and is aware of application solely for the purpose of 23 A leading immigration advocacy group has also the potential ramifications of knowingly being placed in immigration noted the risk of a frivolousness finding in filing a frivolous application. The alien proceedings to seek some other form of situations in which an alien makes a false claim to is therefore already on notice and has an relief, recognizing that ‘‘it is an abuse of asylum solely to obtain a Notice to Appear and be opportunity to account for any issues the asylum process to file a meritless placed in removal proceedings in order to seek another form of relief. See American Immigration with the claim without the immigration asylum application with the USCIS for Lawyers Association, Ethical Considerations judge having to bring the issues to the the sole purpose of seeking cancellation Related to Affirmatively Filing an Application for alien’s attention. Thus, there is no of removal in the Immigration Asylum for the Purpose of Applying for reason to require multiple opportunities Court’’); 22 Inspection and Expedited Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident at 4 (2016), https:// for an alien to disavow or explain a Removal of Aliens; Detention and www.aila.org/practice/ethics/ethics-resources/2016- knowingly frivolous application, and 2019/submitting-an-affirmative-asylum-app-ethical- the current requirement, in essence, 22 Although the Board’s decision affirmed an qs (describing as a ‘‘classic instance’’ of asylum creates a moral hazard that encourages immigration judge’s authority to dismiss such a frivolousness a situation in which an alien willfully aliens to pursue false asylum case upon motion by DHS, such abusive filings for creates false facts for an asylum application in order an improper purpose also warrant sanctioning as to be placed in removal proceedings to apply for applications because no penalty can frivolous if the proceedings go forward. another type of relief). attach until the alien is caught and

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given an opportunity to retract the claim.’’). Such a decision would be Further, allowing the pretermission of claim. See Angov, 788 F.3d at 901–02 based on the Form I–589 application legally deficient asylum applications is (‘‘[Immigration f]raud, forgery and itself and any supporting evidence. consistent with current practice, fabrication are so common—and so The BIA previously addressed the applicable law, and due process. As difficult to prove—that they are issue of adjudicating applications for explained below, an immigration judge routinely tolerated. * * * [I]f an alien asylum without testimony in Matter of would only be able to pretermit an does get caught lying or committing Fefe. 20 I&N Dec. 116 (BIA 1989). In asylum application after first allowing fraud, nothing very bad happens to him. Matter of Fefe, the BIA stated ‘‘[a]t a the alien an opportunity to respond. The * * * Consequently, immigration fraud minimum, we find that the regulations alien would be able to address any is rampant.’’). Accordingly, the require that an applicant for asylum and inconsistencies or legal weaknesses in proposed rule would overrule Matter of withholding take the stand, be placed the asylum application in the response Y–L– to the extent that the two may under oath, and be questioned as to to the judge’s notice of possible conflict.24 whether the information in the written pretermission. Finally, in order to ameliorate the application is complete and correct.’’ Id. Under the proposed regulation, an consequences of knowingly filing a at 118. But the regulations at issue in immigration judge may pretermit an frivolous application in appropriate Matter of Fefe are no longer in effect. asylum application in two cases, the Departments propose a The only other prior BIA decision to circumstances: (1) Following an oral or mechanism that would allow certain address the matter was subsequently written motion by DHS, and (2) sua aliens to withdraw, with prejudice, their vacated by the Attorney General, and no sponte upon the immigration judge’s applications by disclaiming the longer has any precedential effect. See own authority. Provided the alien has applications; accepting an order of Matter of E–F–H–L–, 26 I&N Dec. 319, had an opportunity to respond, and the voluntary departure for a period of no 322 (BIA 2014), vacated on other immigration judge considers any such more than 30 days; withdrawing, also grounds by 27 I&N Dec. 226 (A.G. 2018). response, a hearing would not be with prejudice, all other applications for Current regulations require a hearing required for the immigration judge to relief or protection; and waiving any on an asylum application only ‘‘to make a decision to pretermit and deny rights to file an appeal, motion to resolve factual issues in dispute.’’ 8 CFR the application. In the case of the reopen, and motion to reconsider. In 1240.11(c)(3) (emphasis added). No immigration judge’s exercise of his or such instances the aliens would not be existing regulation requires a hearing her own authority, parties would have subject to a frivolousness finding and when an asylum application is legally at least ten days’ notice before the could avoid the penalties associated deficient. To the contrary, current immigration judge would enter such an 25 with such a finding. Finally, the regulations expressly note that no order. A similar timeframe would apply proposed regulation does not change further hearing is necessary once an if DHS moves to pretermit, under current regulatory language that makes immigration judge determines that an current practice. See EOIR, Immigration clear that a frivolousness finding does asylum application is subject to certain Court Practice Manual at D–1 (Aug. 2, not bar an alien from seeking statutory grounds for mandatory denial. Id. 2018), https://www.justice.gov/eoir/ withholding of removal or protection Moreover, other immigration page/file/1084851/download (last under the CAT regulations. applications are subject to pretermission visited May 20, 2020). 2. Pretermission of Legally Insufficient without a hearing when they are not C. Standards for Consideration During Applications legally sufficient, and there is no reason Review of an Application for Asylum or Additionally, DOJ proposes to add a to treat asylum applications differently. for Statutory Withholding of Removal new paragraph (e) to 8 CFR 1208.13 to See Zhu v. Gonzales, 218 F. App’x 21, 23 (2d Cir. 2007) (finding that 1. Membership in a Particular Social clarify that immigration judges may Group pretermit and deny an application for pretermission of an asylum application To establish eligibility for asylum asylum, statutory withholding of due to a lack of a legal nexus to a under the INA, as amended by the removal, or protection under the CAT protected ground was not a due process Refugee Act of 1980, or statutory regulations if the alien has not violation when the alien was given an withholding of removal, the applicant established a prima facie claim for relief opportunity to address the issue). must demonstrate, among other things, or protection under the applicable laws Further, pretermission due to a failure that she or he was persecuted, or has a and regulations. See Matter of E–F–H–L– to establish prima facie legal eligibility well-founded fear of future persecution, , 27 I&N Dec. 226, 226 (A.G. 2018); see for asylum is akin to a decision by an on account of a protected ground: ‘‘race, also Matter of A–B–, 27 I&N Dec. 316, immigration judge or the BIA denying a religion, nationality, membership in a 340 (A.G. 2018) (‘‘Of course, if an alien’s motion to reopen to apply for asylum on particular social group, or political asylum application is fatally flawed in the same basis, and both immigration opinion.’’ See INA 101(a)(42), 8 U.S.C. one respect—for example, for failure to judges and the BIA have routinely made 1101(a)(42); see also INA 208(b)(1)(A) show membership in a proposed social such determinations for many years. See and 241(b)(3)(A), 8 U.S.C. 1158(b)(1)(A) group * * *—an immigration judge or INS v. Abudu, 485 U.S. 94, 104 (1988) and 1231(b)(3)(A). Congress, however, the Board need not examine the (holding that the BIA may deny a has not defined the phrase remaining elements of the asylum motion to reopen to file an asylum application if the alien has not made a demonstrate prima facie eligibility for relief. For 24 prima facie case for that relief). The proposed rule would also overrule any example, the Departments do not believe that other cases that rely on the same reasoning as In short, neither the INA nor current requiring a sufficient level of detail to determine Matter of Y–L–, to the extent that there is a conflict regulations require holding a full merits whether or not an alien has a prima facie case for between the proposed rule and case law regarding asylum, statutory withholding of removal, or frivolousness findings. See, e.g., Matter of B–Y–, 25 hearing on purely legal issues, such as 26 protection under the CAT regulations would I&N Dec. at 241 (requiring explicit deliberateness/ prima facie legal eligibility for relief. necessarily require a voluminous application. See materiality findings). H.R. Rep. No. 104–469, part 1, at 175–76 (1996). 25 This safety-valve provision would modify 26 The Departments are not aware of anything in The point instead is enough information to Matter of X–M–C– by providing a limited exception IIRIRA or related legislative history that would determine the basis of the alien’s claim for relief to the general rule that an asylum application may conflict with an immigration judge’s ability to and if such a claim could be sufficient to still be deemed frivolous even if it is withdrawn. pretermit an asylum application that does not demonstrate eligibility.

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‘‘membership in a particular social Starting in the late 2000s, the BIA began all,’’ and that ‘‘judicial interpretations of group.’’ Nor is the term defined in the to build on the Acosta definition in a th[e] statute may outstrip anything United Nations Convention Relating to series of cases, and subsequently settled Congress intended’’). Accordingly, this the Status of Refugees (‘‘Refugee on a three-part test for a particular social regulation would provide clear Convention’’), July 28, 1951, 19 U.S.T. group, holding that the group must be parameters for evaluating cognizable 6259, 189 U.N.T.S. 150, or the related ‘‘(1) composed of members who share a ‘‘particular social groups.’’ Refugee Protocol. Further, the term common immutable characteristic, (2) The proposed rule would codify the lacks the benefit of clear legislative defined with particularity, and (3) longstanding requirements, as discussed intent. See Fatin v. INS, 12 F.3d 1233, socially distinct within the society in above, that a particular social group 1239 (3d Cir. 1993) (Alito, J.) (‘‘Thus, question.’’ Matter of M–E–V–G–, 26 I&N must be (1) composed of members who neither the legislative history of the Dec. at 237; see also Matter of share a common immutable relevant United States statutes nor the W–G–R–, 26 I&N Dec. at 212–18. characteristic, (2) defined with negotiating history of the pertinent Immutability entails a common particularity, and (3) socially distinct in international agreements sheds much characteristic: A trait ‘‘that the members the society in question. In addition, the light on the meaning of the phrase of the group either cannot change, or particular social group must have ‘particular social group.’ ’’); cf. Matter of should not be required to change existed independently of the alleged Acosta, 19 I&N Dec. 211, 232 (BIA 1985) because it is fundamental to their persecutory acts and cannot be defined (‘‘Congress did not indicate what it individual identities or consciences.’’ exclusively by the alleged harm.28 See understood this ground of persecution Matter of Acosta 19 I&N Dec. at 233. Matter of A–B–, 27 I&N Dec. at 334 (‘‘To to mean, nor is its meaning clear in the Particularity requires that the group be cognizable, a particular social group Protocol’’), overruled on other grounds ‘‘must be defined by characteristics that must ‘exist independently’ of the harm by Matter of Mogharrabi, 19 I&N Dec. provide a clear benchmark for asserted in an application for asylum or 439 (BIA 1987). determining who falls within the group’’ statutory withholding of removal.’’); see When Congress passed the Refugee and that ‘‘the terms used to describe the generally Matter of M–E–V–G–, 26 I&N Act of 1980, further implementing U.S. group have commonly accepted Dec. at 243 (‘‘The act of persecution by obligations under the Refugee Protocol, definitions in the society of which the the government may be the catalyst that it included ‘‘membership in a particular group is a part.’’ Matter of M–E–V–G–, causes the society to distinguish [a social group’’ in its definition of 26 I&N Dec. at 239. Further, the group collection of individuals] in a ‘‘refugee’’ at section 101(a)(42) of the must not be ‘‘amorphous, overbroad, meaningful way and consider them a INA, 8 U.S.C. 1101(a)(42). Just a few diffuse, or subjective.’’ Id. To be distinct group, but the immutable years later, the BIA established that a considered ‘‘socially distinct,’’ the characteristic of their shared past particular social group is ‘‘a group of group must be a meaningfully discrete experience exists independent of the persons all of whom share a common, group as the relevant society perceives persecution.’’). immutable characteristic,’’ and that the it. The term is not dependent on literal The proposed rule would further characteristic ‘‘either is beyond the or ‘‘ocular’’ visibility. Id. at 238, 240–41. build on the BIA’s standards and power of an individual to change or that The definition of ‘‘particular social provide clearer guidance to adjudicators it is so fundamental to his identity or group’’ has been the subject of regarding whether an alleged group conscience that it ought not be required considerable litigation and is a product exists and, if so, whether it is cognizable to be changed.’’ Matter of Acosta, 19 of evolving case law, making it difficult as a particular social group in order to I&N Dec. at 233–34. for EOIR’s immigration judges and ensure the consistent consideration of Although the Board did not Board members, as well as DHS asylum asylum and statutory withholding significantly refine the formulation officers, to uniformly apply the claims. For example, the proposed rule further until years later, see, e.g., Matter framework. See Matter of A–B–, 27 I&N of C–A–, 23 I&N Dec. 951, 956, 959–60 Dec. at 331 (‘‘Although the Board has 28 The Departments recognize the existence of (BIA 2006), it routinely issued decisions articulated a consistent understanding confusion over this standard because the independent existence of a particular social group delineating which groups did and did of the term ‘particular social group,’ not is not precisely the same concept as noting the not qualify as particular social groups in all of its opinions have properly applied group cannot be defined exclusively by the alleged the context of the relevant societies for that framework.’’); see also, e.g., harm. Thus, the proposed rule clarifies that a valid purposes of asylum protection, see, e.g., Cordoba v. Holder, 726 F.3d 1106, 1114 particular social group must have existed independently of the alleged persecutory acts and Matter of H–, 21 I&N Dec. 337, 342–43 (9th Cir. 2013) (‘‘We have recognized cannot be defined exclusively by the alleged harm. (BIA 1996) (membership in a Somali that the phrase ‘particular social group’ Otherwise, ‘‘[i]f a group is defined by the subclan may constitute membership in is ambiguous.’’ (citing Henriquez-Rivas persecution of its members, the definition of the a particular social group); Matter of v. Holder, 707 F.3d 1081, 1083 (9th Cir. group moots the need to establish actual persecution’’ Matter of A–B–, 27 I&N Dec. at 335. Toboso-Alfonso, 20 I&N Dec. 819, 822– 2013) (en banc))); Fatin, 12 F.3d at 1238 The ‘‘independent existence’’ formulation has been 23 (BIA 1990) (designated for (‘‘Both courts and commentators have accepted by many courts. See, e.g., Perez-Rabanales publication by the Attorney General in struggled to define ‘particular social v. Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (‘‘A 1994) (homosexuals in Cuba may group.’ Read in its broadest literal sense, sufficiently distinct social group must exist 27 independent of the persecution claimed to have constitute a particular social group). the phrase is almost completely open- been suffered by the alien and must have existed ended.’’); see also Velasquez v. before the alleged persecution began.’’); Lukwago v. 27 Federal courts have raised questions about Sessions, 866 F.3d 188, 198 (4th Cir. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003) (‘‘We whether the Board or the Attorney General can 2017) (Wilkinson, J. concurring) (noting agree that under the statute a ‘particular social recognize or reject particular social groups in this group’ must exist independently of the persecution manner, Pirir-Boc v. Holder, 750 F.3d 1077, 1084 that the legal ‘‘analysis of ‘particular suffered by the applicant for asylum.’’). For courts (9th Cir. 2014), and a recent federal district court social group’ in the asylum statute is at that have rejected this ‘‘independent existence’’ decision has more clearly called into question the risk of lacking rigor,’’ that Congress did requirement, see, e.g., Cece v. Holder, 733 F.3d 662, validity of this approach of announcing general not intend ‘‘‘membership in a particular 671–72 (7th Cir. 2013) (en banc), both subsequent rules of particular social group definitions. Grace v. decisions recognizing the requirement, see, e.g., Whitaker, 344 F. Supp. 3d 96, 126 (D.D.C. 2018) social group’ to be some omnibus catch- Matter of A–B– and Matter of M–E–V–G–, supra, and (finding that general rules of particular social group the Departments’ proposed rule codifying it would definitions, at least as applied to credible fear required by the INA’’), appeal docketed, No. 19– warrant re-evaluation under well-established claims, run ‘‘contrary to the individualized analysis 5013 (D.C. Cir. filed Jan. 30, 2019). principles. See Brand X, 545 U.S. at 982.

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would outline several nonexhaustive group, rather than the specific form of was afforded at the hearing, unless the bases that would generally be its delineation, will be considered by relief is sought on the basis of insufficient to establish a particular adjudicators in determining whether the circumstances that have arisen social group. Without more, the group falls within one of the categories subsequent to the hearing.’’). These Secretary of Homeland Security and the on the list. Without additional evidence, regulations will enable the immigration Attorney General, in general, would not these circumstances are generally judge to adjudicate the alien’s particular favorably adjudicate claims of aliens insufficient to demonstrate a particular claim for relief or protection timely and who claim membership in a purported social group that is cognizable because efficiently, including deciding whether particular social group consisting of or it is immutable, socially distinct, and or not pretermission of the alien’s defined, in substance, by the following particular, that is cognizable because the application may be appropriate. circumstances: group does not exist independently of 2. Political Opinion (1) Past or present criminal activity or the harm asserted, or that is cognizable associations, Matter of W–G–R–, 26 I&N because the group is defined exclusively The definition of ‘‘political opinion’’ Dec. at 222–23; Cantarero v. Holder, 734 by the alleged harm. At the same time, has also been the subject of considerable F.3d 82, 86 (1st Cir. 2013); Gonzalez v. the regulation does not foreclose that, in litigation and is a product of evolving U.S. Att’y Gen., 820 F.3d 399, 405 (11th rare circumstances, such facts could be case law, making it difficult for EOIR’s Cir. 2016); the basis for finding a particular social immigration judges and Board members, (2) past or present terrorist activity or group, given the fact- and society- as well as DHS asylum officers, to 29 association; specific nature of this determination. In uniformly apply the framework. (3) past or present persecutory activity addition to resulting in more uniform Compare, e.g., Hernandez-Chacon v. or association; application, providing clarity to this Barr, 948 F.3d 94, 102–03 (2d Cir. 2020) (4) presence in a country with issue will reduce the amount of time the (refusal to submit to the violent generalized violence or a high crime adjudicators must spend evaluating advances of gang members may be akin rate, Matter of A–B–, 27 I&N Dec. at 320; (5) the attempted recruitment of the such claims. to a political opinion taking a stance applicant by criminal, terrorist, or The proposed regulation also specifies against a culture of male-domination), persecutory groups, Matter of S–E–G–, procedural requirements specific to with Saldarriaga v. Gonzales, 402 F.3d 24 I&N Dec. 579, 585–86 (BIA 2008); asylum and statutory withholding 461, 467 (4th Cir. 2005) (disapproval of Matter of E–A–G–, 24 I&N Dec. 591, claims premised on a particular social a drug cartel is not a political opinion— 594–95 (BIA 2008); group. While in proceedings before an ‘‘Indeed, to credit such disapproval as (6) the targeting of the applicant for immigration judge, the alien must first grounds for asylum would enlarge the criminal activity for financial gain based define the proposed particular social category of political opinions to include on perceptions of wealth or affluence, group as part of the asylum application almost any quarrel with the activities of Matter of A–M–E– & J–G–U–, 24 I&N or otherwise in the record. If the alien almost any organization. Not only Dec. 69, 75 (BIA 2007); fails to do so while before an would the proliferation of asylum grants (7) interpersonal disputes of which immigration judge, the alien will waive under this expansive reading interfere governmental authorities were unaware any claim based on a particular social with the other branches’ primacy in or uninvolved, Matter of Pierre, 15 I&N group formulation that was not foreign relations, it would also strain the Dec. 461, 462–63 (BIA 1975); see also advanced. See Matter of W–Y–C– & H– language of § 1101(a)(42)(A). The statute Gonzalez-Posadas v. Att’y Gen. of U.S., O–B–, 27 I&N Dec. 189, 190–91 (BIA requires persecution to be on a discrete 781 F.3d 677, 685 (3d Cir. 2015); 2018). Further, to encourage the basis and to fall within one of the (8) private criminal acts of which efficient litigation of all claims in front enumerated categories.’’ (citations governmental authorities were unaware of the immigration court at the same omitted)). or uninvolved, Matter of A–B–, 27 I&N time—and to avoid gamesmanship and BIA case law makes clear that a Dec. at 343–44; see also Gonzales-Veliz piecemeal analyses of claims in separate political opinion involves a cause v. Barr, 938 F.3d 219, 230–31 (5th Cir. proceedings when all claims could have against a state or a political entity, 2019); been brought at once—the alien will rather than against a culture. Matter of (9) status as an alien returning from also waive the ability to file any motion S–P–, 21 I&N Dec. 486, 494 (BIA 1996) the United States, Delgado-Ortiz v. to reopen or reconsider an asylum (‘‘Here we must examine the record for Holder, 600 F.3d 1148, 1151–52 (9th application related to the alien’s direct or circumstantial evidence from Cir. 2010) (‘‘We conclude that membership in a particular social group which it is reasonable to believe that Petitioners’ proposed social group, that could have been brought at the those who harmed the applicant were in ‘returning Mexicans from the United prior hearing, including based on part motivated by an assumption that States,’ * * * * is too broad to qualify allegations related to the strategic his political views were antithetical to as a cognizable social group.’’); Sam v. choices made by an alien’s counsel in those of the government.’’ (emphasis Holder, 752 F.3d 97, 100 (1st Cir. 2014) defining the alleged particular social added)). For purposes of interpreting the (Guatemalans returning after a lengthy group. This limitation is consistent with Refugee Convention and subsequent residence in the United States is not a current requirements for motions to Protocol, the United Nations High cognizable particular social group). reopen that preclude the raising of Commissioner for Refugees (‘‘UNHCR’’) This list is nonexhaustive, and the claims that could have been brought in also analyzes ‘‘political opinion’’ in substance of the alleged particular social a prior proceeding. See 8 CFR terms of holding an opinion different 1003.23(b)(3) (‘‘A motion to reopen for from the Government or not tolerated by 29 Just as past criminal associations cannot the relevant governmental authorities. establish a particular social group, neither past the purpose of providing the alien an association with terrorists or past association with opportunity to apply for any form of UNHCR Handbook on Procedures and persecutors warrants recognition as a particular discretionary relief will not be granted Criteria for Determining Refugee Status social group. To do so would reward membership if it appears that the alien’s right to and Guidelines on International in organizations that cause harm to society and apply for such relief was fully explained Protection, ch. II(B)(3)(f), ¶¶ 80–82 (Feb. create a perverse incentive to engage in reprehensible or illicit behavior as a means of to him or her by the Immigration Judge 2019) (discussing political opinion avoiding removal. Cf. Cantarero, 734 F.3d at 86. and an opportunity to apply therefore refugee claims in terms of opinions not

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tolerated by governmental the 3. Persecution damage, do not typically constitute authorities or ruling powers). For purposes of eligibility for asylum persecution. See, e.g., de Zea v. Holder, Nevertheless, to avoid further strain and withholding of removal, 761 F.3d 75, 80 (1st Cir. 2014) on the INA’s definition of refugee, INA persecution is defined as ‘‘a threat to the (persecution requires more than 1101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A), life or freedom of, or the infliction of ‘‘unpleasantness, harassment, and even see Saldarriaga, 402 F.3d at 467, to suffering or harm upon, those who differ basic suffering’’); Ruano v. Ashcroft, 301 F.3d 1155, 1160 (9th Cir. 2002) (noting provide additional clarity for in a way regarded as offensive.’’ Matter that ‘‘unfulfilled threats alone generally adjudicators, and in recognition of both of Acosta, 19 I&N Dec. at 222; see also do not constitute past persecution’’); statutory requirements and the general Fatin, 12 F.3d at 1240 (‘‘Thus, we interpret Acosta as recognizing that the Djonda v. U.S. Att’y Gen., 514 F.3d understanding that a political opinion is 1168, 1174 (11th Cir. 2008) (threats and intended to advance or further a discrete concept of persecution does not encompass all treatment that our society a minor beating do not constitute past cause related to political control of a persecution); Kazemzadeh v. U.S. Att’y state, id. at 466–67, the Departments regards as unfair, unjust, or even unlawful or unconstitutional.’’). It Gen., 577 F.3d 1341, 1353 (11th Cir. propose to define political opinion as 2009) (‘‘Minor physical abuse and brief encompasses two aspects: ‘‘harm or one expressed by or imputed to an detentions do not amount to suffering had to be inflicted upon an applicant in which the applicant persecution.’’); Matter of T–Z–, 24 I&N individual in order to punish him for possesses an ideal or conviction in Dec. 163, 170 (BIA 2007) (explaining possessing a belief or characteristic a support of the furtherance of a discrete that economic harm must be ‘‘severe’’ to persecutor sought to overcome * * * cause related to political control of a qualify as persecution). state or a unit thereof. Moreover, in [and] harm or suffering had to be Absent credible evidence that recognition of that definition, the inflicted either by the government of a Government laws or policies have been Secretary or Attorney General, in country or by persons or an organization or would be applied to an applicant general, will not favorably adjudicate that the government was unable or personally, infrequent application of claims of persecution on account of a unwilling to control.’’ Matter of Acosta, those laws and policies cannot 19 I&N Dec. at 222. Put differently, political opinion defined solely by constitute a well-founded fear of persecution requires an intent to target generalized disapproval of, persecution. In other words, the mere a belief, characteristic or group, a severe disagreement with, or opposition to existence of potentially persecutory level of harm, and the infliction of a criminal, terrorist, gang, guerilla, or laws or policies is not enough to severe level of harm by the government other non-state organizations absent establish a well-founded fear of of a country or by persons or an expressive behavior 30 in furtherance of persecution. Rather, there must be organization that the government is evidence these laws or policies were a cause against such organizations unable or unwilling to control. Matter of related to efforts by the state to control widespread and systemic, or evidence A–B–, 27 I&N Dec. at 337. For purposes that persecutory laws or policies were, such organizations or behavior that is of evaluating the severity of the level of antithetical to or otherwise opposes the or would be, applied to an applicant harm, persecution connotes an extreme personally. Cf. Wakkary v. Holder, 558 ruling legal entity of the state or a legal level of harm and does not encompass sub-unit of the state. Finally, consistent F.3d 1049, 1061 (9th Cir. 2009) (an all possible forms of mistreatment. See applicant is not required to establish with INA 101(a)(42), 8 U.S.C. Shi v. U.S. Att’y Gen., 707 F.3d 1231, 1101(a)(42), a person who has been that his or her government would 1235 (11th Cir. 2013) (explaining that personally persecute the alien upon forced to abort a pregnancy or to persecution is ‘‘an extreme concept that undergo involuntary sterilization, or return if he or she can establish a does not include every sort of treatment pattern or practice of persecution who has been persecuted for failure or [that] our society regards as offensive’’ against a protected group to which they refusal to undergo such a procedure or (quotation marks and citations belong. However, the governmental for other resistance to a coercive omitted)); Gormley v. Ashcroft, 364 F.3d conduct must be ‘‘systematic’’ and population control program, shall be 1172, 1176 (9th Cir. 2004) (same). ‘‘sufficiently widespread’’ and not deemed to have been persecuted on It is thus well-established that not all merely infrequent). account of political opinion, and a treatment that the United States regards Given the wide range of cases person who has a well-founded fear that as unfair, offensive, unjust, or even interpreting ‘‘persecution’’ for the he or she will be forced to undergo such unlawful or unconstitutional constitutes purposes of the asylum laws, the a procedure or subject to persecution for persecution under the INA.31 Further, Departments propose adding a new such failure, refusal, or resistance shall intermittent harassment, including brief paragraph to 8 CFR 208.1 and 1208.1 to be deemed to have a well-founded fear detentions, repeated threats with no define persecution and to better clarify of persecution on account of political effort to carry out the threats, or non- what does and does not constitute opinion. severe economic harm or property persecution. It would provide that persecution is an extreme concept of a 30 Expressive behavior includes public behavior 31 ‘‘Persecution * * * does not include severe level of harm. Under the commonly associated with political activism, such discrimination.’’ Fisher v. INS, 79 F.3d 955, 961 proposed amendment, persecution as attending rallies, organizing collective actions (9th Cir. 1996) (en banc) (internal quotation marks such as strikes or demonstrations, speaking at and authority omitted); see also Ahmed v. Ashcroft, would not include, for example: (1) public meetings, printing or distributing political 341 F.3d 214, 217 (3d Cir. 2003) (discrimination Every instance of harm that arises materials, putting up political signs, or similar against stateless Palestinians in Saudi Arabia did generally out of civil, criminal, or activities in which an individual’s political views not amount to persecution). Nor does harassment military strife in a country, see, e.g., are a salient feature of the behavior and constitute persecution. See, e.g., Halim v. Holder, communicated to others at the time the behavior 590 F.3d 971, 976 (9th Cir. 2009) (alleged incidents Matter of Sanchez and Escobar, 19 I&N occurs. Expressive behavior is not generally thought constituted harassment, not persecution); Ambati v. Dec. 276, 284–85 (BIA 1985); (2) any to encompass acts of personal civic responsibility Reno, 233 F.3d 1054, 1060 (7th Cir. 2000) and all treatment that the United States such as voting, reporting a crime, or assisting law (distinguishing persecution from harassment or regards as unfair, offensive, unjust, or enforcement in an investigation, and those annoyance); Matter of V–F–D–, 23 I&N Dec. 859, activities, by themselves, would not support a claim 863863 (BIA 2006) (determining harassment and even unlawful or unconstitutional, see based on an alleged fear of harm due to a political discrimination based on religion did not constitute Fatin, 12 F.3d at 1240; Matter of V–T– opinion. persecution). S–, 21 I&N Dec. 792, 798 (BIA 1997); (3)

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intermittent harassment, including brief will be at least one central reason for opinion he claims implies that any detentions; (4) repeated threats with no persecuting the applicant.’’ ‘‘Reasons persecution he faces is due to the fact actions taken to carry out the threats; 32 incidental, tangential, or subordinate to of his cooperation with the government, (5) non-severe economic harm or the persecutor’s motivation will not rather than the content of any opinion property damage; or (6) government suffice.’’ Matter of A–B–, 27 I&N Dec. at motivating that cooperation * * *. But laws or policies that are infrequently 338. As with the definitions of when, as here, the applicant has not enforced, unless there is credible particular social group and persecution, taken sides in such manner—much less evidence that those laws or policies the contours of the nexus requirement under duress—and the conflict, though have been or would be applied to an have further been shaped through case ubiquitous, is not aimed at controlling applicant personally. The Departments law rather than rulemaking, making it the organs of state, an applicant cannot believe that these changes better align difficult for EOIR’s immigration judges merely describe his involvement with the relevant regulations with the high and Board members, as well as DHS one side or the other to establish a standard Congress intended for the term asylum officers, to uniformly apply it. political opinion * * *.’’); ‘‘persecution.’’ See Fatin, 12 F.3d at Accordingly, the proposed rule would (4) resistance to recruitment or 1240 n.10. provide clearer guidance on situations coercion by guerilla, criminal, gang, in which alleged acts of persecution terrorist, or other non-state 4. Nexus would not be on account of one of the organizations, INS v. Elias-Zacarias, 502 To establish eligibility for asylum five protected grounds. This proposal U.S. 478, 482 (1992) (‘‘[T]he mere under the INA, as amended by the would further the expeditious existence of a generalized ‘political’ Refugee Act of 1980 and the REAL ID consideration of asylum and statutory motive underlying the guerrillas’ forced Act of 2005, Public Law 109–13, sec. withholding claims. For example, the recruitment is inadequate to establish 101 (found at INA 208(b)(1)(B)(i), 8 proposed rule would outline the (and, indeed, goes far to refute) the U.S.C. 1158(b)(1)(B)(i)), the applicant following eight nonexhaustive proposition that [the respondent] fears must demonstrate, among other things, situations, each of which is rooted in persecution on account of political that at least one central reason for his or case law, in which the Secretary of opinion, as § 101(a)(42) requires.’’ her persecution or well-founded fear of Homeland Security and the Attorney (emphasis in original)); persecution was on account of a General, in general, will not favorably (5) the targeting of the applicant for protected ground: Race, religion, adjudicate asylum or statutory criminal activity for financial gain based nationality, membership in a particular withholding of removal claims based on on wealth or affluence or perceptions of social group, or political opinion. See persecution: wealth or affluence, Aldana-Ramos v. INA 101(a)(42), 8 U.S.C. 1101(a)(42); (1) Personal animus or retribution, Holder, 757 F.3d 9, 18 (1st Cir. 2014) INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). Zoarab v. Mukasey, 524 F.3d 777, 781 (‘‘criminal targeting based on wealth The requirement that the fear be on (6th Cir. 2008) (‘‘Asylum is not available does not qualify as persecution ‘on account of one of the five grounds is to an alien who fears retribution solely account of’ membership in a particular commonly called the ‘‘nexus over personal matters.’’); group’’); or requirement.’’ (2) interpersonal animus in which the (6) criminal activity, Zetino v. Holder, The REAL ID Act of 2005 refined the alleged persecutor has not targeted, or 622 F.3d 1007, 1016 (9th Cir. 2010) nexus requirement by requiring that one manifested an animus against, other (‘‘An alien’s desire to be free from of the five protected grounds ‘‘was or members of an alleged particular social harassment by criminals motivated by group in addition to the member who theft or random violence by gang 32 The Departments note that courts have been has raised the claim at issue, Matter of members bears no nexus to a protected inconsistent in their treatment of threats as A–B–, 27 I&N Dec. at 339 (‘‘ ‘the record ground * * *.’’); persecution. See Lim v. INS, 224 F.3d at 929, 936– 37 (9th Cir. 2000) (explaining that threats are does not reflect that [the applicant’s] (7) perceived, past or present, gang generally not past ‘‘persecution,’’ but are ‘‘within husband bore any particular animosity affiliation, Matter of E–A–G–, 24 I. & N. that category of conduct indicative of a danger of toward women who were intimate with Dec. 591, 596 (BIA 2008) (‘‘[In Arteaga future persecution.’’); Li v. Attorney Gen. of U.S., abusive partners, women who had v. Mukasey, 511 F.3d 940, 945–46 (9th 400 F.3d 157, 164–65 (3d Cir. 2005) (same). See also Guan Shan Liao v. United States Dep’t of Justice, previously suffered abuse, or women Cir. 2007)] the Ninth Circuit held that 293 F.3d 61, 70 (2d Cir. 2002); Boykov v. INS, 109 who happened to have been born in, or membership in a gang would not F.3d 413, 416–17 (7th Cir. 1997); Ang v. Gonzales, were actually living in, Guatemala’ ’’ constitute membership in a particular 430 F.3d 50, 56 (1st Cir. 2005) (‘‘[H]ollow threats, and ‘‘ ‘[w]hen the alleged persecutor is social group. We agree.’’ Furthermore, * * * without more, certainly do not compel a finding of past persecution.’’); but see Li v. not even aware of the group’s existence, ‘‘because we agree that membership in Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) it becomes harder to understand how a criminal gang cannot constitute a (‘‘Persecution involves the infliction or threat of the persecutor may have been motivated particular social group, the respondent death, torture, or injury to one’s person or freedom by the victim’s ‘membership’ in the cannot establish particular social group on account of one of the enumerated grounds in the refugee definition.’’); Tairou v. Whitaker, 909 F.3d group to inflict the harm on the status based on the incorrect perception 702, 707–08 (4th Cir. 2018) (‘‘Contrary to the BIA’s victim.’ ’’ (quoting Matter of R–A–, 22 by others that he is such a gang reasoning, the threat of death alone constitutes I&N Dec. 906, 919–21 (BIA 1999) (en member.’’); or persecution, and [an applicant] [is] not required to banc))); (8) gender, Niang v. Gonzales, 422 [show] * * * physical or mental harm to establish past persecution.’’); id. (holding Board erred in (3) generalized disapproval of, F.3d 1187, 1199–1200 (10th Cir. 2005) reasoning that several death threats did not disagreement with, or opposition to (‘‘There may be understandable concern constitute past persecution where applicant criminal, terrorist, gang, guerilla, or in using gender as a group-defining ‘‘suffered no major physical injuries and * * * did other non-state organizations absent characteristic. One may be reluctant to not claim to have suffered any long-term mental harm or problems’’); Hernandez-Avalos v. Lynch, expressive behavior in furtherance of a permit, for example, half a nation’s 784 F.3d 944, 949 (4th Cir. 2015) (‘‘[W]e have discrete cause against such residents to obtain asylum on the expressly held that the threat of death qualifies as organizations related to control of a state ground that women are persecuted there persecution.’’ (internal quotation marks and citation or expressive behavior that is * * *.’’) omitted)). The Departments’ proposed rule would Without additional evidence, these warrant re-evaluation in appropriate cases under antithetical to the state or a legal unit of well-established principles. See Brand X, 545 U.S. the state, Saldarriaga, 402 F.3d at 468 circumstances will generally be at 982. (‘‘For the inscrutability of the political insufficient to demonstrate persecution

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on account of a protected ground. At the (asylum); 8 CFR 208.16(b)(1)(i)(B), (2), of persecution would occur nationwide. same time, the regulation does not 1208.16(b)(1)(i)(B), (2) (statutory Consequently, the Departments have foreclose that, at least in rare withholding). The regulations further determined that the regulatory burdens circumstances, such facts could be the prescribe a nonexhaustive list of factors of proof regarding internal relocation basis for finding nexus, given the fact- for adjudicators to consider in making should be assigned more in line with specific nature of this determination. In internal relocation determinations and these baseline assessments of whether addition to resulting in more uniform delineate burdens of proof in various types of persecution generally occur application of the law, providing clarity related situations. 8 CFR 208.13(b)(1)(ii), nationwide, while recognizing that to this issue will reduce the amount of (3), 1208.13(b)(1)(ii), (3); 8 CFR exceptions, such as persecution by local time the adjudicators must spend 208.16(b)(1)(ii), (3), 1208.16(b)(i)(ii), (3). governments or nationwide evaluating such claims. The Departments have determined organizations, might overcome these Finally, the Departments propose to that the current regulations regarding presumptions. Thus, the Departments make clear that pernicious cultural internal relocation inadequately assess propose to amend the regulations to stereotypes have no place in the the relevant considerations in presume that for applications in which adjudication of applications for asylum determining whether internal relocation the persecutor is not a government or and statutory withholding of removal, is possible, and if possible, whether it government-sponsored actor, internal regardless of the basis of the claim. See is reasonable to expect the asylum relocation would be reasonable unless Matter of A–B–, 27 I&N Dec. at 336 n. applicant to relocate. For instance, the the applicant demonstrates by a 9 (‘‘On this point, I note that conclusory utility of the catch-all list of factors in preponderance of the evidence that it assertions of countrywide negative 8 CFR 208.13(b)(3) and 1208.13(b)(3) is would not be. This presumption would cultural stereotypes, such as undermined by its unhelpful apply regardless of whether an A–R–C–G–’s broad charge that concluding caveats that the factors applicant has established past Guatemala has a ‘culture of machismo ‘‘may, or may not’’ be relevant to an persecution. For ease of administering and family violence’ based on an internal relocation determination and these provisions, the Departments unsourced partial quotation from a news that the factors ‘‘are not necessarily would also provide examples of the article eight years earlier, neither determinative of whether it would be types of individuals or entities who are contribute to an analysis of the reasonable for the applicant to relocate.’’ private actors. particularity requirement nor constitute Such caveats provide little practical appropriate evidence to support such guidance for adjudicators considering 6. Factors for Consideration in asylum determinations.’’). Accordingly, issues of internal relocation raised by Discretionary Determinations the proposed rule would bar asylum claims. Moreover, some Asylum is a discretionary relief, and consideration of evidence promoting factors—e.g., administrative, economic, an alien who demonstrates that he or cultural stereotypes of countries or or judicial infrastructure—do not have a she qualifies as a refugee must also individuals, including stereotypes clear relevance in assessing the demonstrate that he or she deserves related to race, religion, nationality, and reasonableness of internal relocation in asylum as a matter of discretion. See gender, to the extent those stereotypes many cases, while others insufficiently INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) were offered in support of an alien’s appreciate as a general matter that (‘‘The Secretary of Homeland Security claim to show that a persecutor asylum applicants have often already or the Attorney General may grant conformed to a cultural stereotype. relocated hundreds or thousands of asylum to an alien who has applied for miles to the United States regardless of asylum in accordance with the 5. Internal Relocation such factors. Accordingly, the requirements and procedures [they Under current regulations, an Departments propose a more establish] * * * if the Secretary of applicant for asylum or statutory streamlined presentation in the Homeland Security or the Attorney withholding of removal who could regulations of the most relevant factors General determines that such alien is a avoid persecution by internally for adjudicators to consider in refugee * * *.’’ (emphasis added)); relocating to another part of his or her determining whether internal relocation Stevic, 467 U.S. at 423 n.18 (‘‘Meeting country of nationality or, if stateless, is a reasonable option. the definition of ‘refugee,’ however, another part of the applicant’s country The current regulations also outline does not entitle the alien to asylum—the of last habitual residence, and who can different scenarios for assessing who decision to grant a particular reasonably be expected to do so, may bears the burden of proof in establishing application rests in the discretion of the not be granted these forms of or refuting the reasonableness of Attorney General under § 208(a).’’). protection.33 8 CFR 208.13(b)(1)(i)(B), internal relocation. In situations in Eligibility for asylum is not an (2)(ii), 1208.13(b)(1)(i)(B), (2)(ii) which the persecutor is the government automatic entitlement. Rather, after or a government-sponsored actor, it is demonstrating statutory and regulatory 33 In limited instances, asylum can be granted presumed that relocation would not be eligibility, aliens must further meet their without the need to establish a well-founded fear burden of showing that the Attorney of persecution. An alien who has suffered past reasonable (as the persecution is persecution but does not warrant being granted presumed to be nationwide). In General or the Secretary of Homeland asylum due either to a fundamental change in situations in which a private actor is the Security should exercise his discretion circumstances such that the alien no longer has a persecutor, however, there is no to grant asylum. See Matter of A–B–, 27 well-founded fear of persecution or the alien’s reasonable ability to internally relocate to avoid apparent reason why the same I&N Dec. at 345 n.12; Matter of Pula, 19 future persecution may nevertheless be granted presumption should apply, as a private I&N Dec. 467, 474 (BIA 1987). asylum in the discretion of the decisionmaker if the individual or organization would not The BIA in Matter of Pula examined alien is not barred from asylum pursuant to 8 CFR ordinarily be expected to have influence the sorts of factors immigration judges 208.13(c) and 1208.13(c) and if the applicant has demonstrated compelling reasons for being everywhere in a country. Moreover, as should consider when determining unwilling or unable to return arising out of the an asylum applicant generally bears the whether asylum applicants merit the severity of the past persecution or the applicant has burden of proving eligibility for asylum, relief of asylum as a matter of established a reasonable possibility of other serious it is even more anomalous to shift that discretion. The BIA ultimately directed harm upon removal. 8 CFR 208.13(b)(1)(iii), 1208.13(b)(1)(iii). This regulatory exception is burden in situations in which there is that that discretionary determination frequently labeled ‘‘humanitarian asylum.’’ no rational presumption that the threat should be based on the totality of the

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circumstances and provided a lengthy proposed factors in the rule will better than legitimately seeking urgent list of possibly relevant factors for ensure that immigration judges and protection. See Asylum Eligibility and consideration, such as, whether the asylum officers properly consider, in all Procedural Modifications, 84 FR at alien passed through any other cases, whether applicants for asylum 33831. As a result, the Departments countries en route to the United States, merit the relief as a matter of discretion, would consider the failure to seek the living conditions and level of safety even if the applicant has otherwise protection in such a third country to be in the countries through which the alien demonstrated eligibility for asylum. a significant adverse factor. The passed, and general humanitarian First, an alien’s unlawful entry, or applicant may, however, present considerations. Matter of Pula, 19 I&N attempted unlawful entry, has been a evidence regarding the basis for the Dec. at 473–75. longstanding factor that adjudicators failure to seek such relief for the To date, the Secretary and Attorney may consider as a matter of discretion. adjudicator’s consideration as outlined General have not provided general Matter of Pula, 19 I&N Dec. at 473 in 8 CFR 208.13(c)(4), 1208.13(c)(4). guidance in agency regulations for (‘‘[A]n alien’s manner of entry or Third, an alien who uses fraudulent factors to be considered when attempted entry is a proper and relevant documents to effect entry to the United determining whether an alien merits discretionary factor to consider’’ as ‘‘one States is inadmissible, INA 212(a)(6)(C), asylum as a matter of discretion. of a number of factors * * * balanced 8 U.S.C. 1182(a)(6)(C), and the Nevertheless, the Departments have in exercising discretion’’). In addition to Departments are concerned that the use issued regulations on discretionary rendering an alien inadmissible in of fraudulent documents makes the considerations for other forms of relief, general, it is a federal criminal offense proper enforcement of the immigration e.g., 8 CFR 212.7(d), 1212.7(d) to enter or attempt to enter the United laws difficult and requires an immense (discretionary decisions to consent to States other than at a time and place amount of resources. The Departments visa applications, admission to the designated by immigration officers. See accordingly propose to consider such United States, or adjustment of status, INA 212(a)(6)(A), 8 U.S.C. 1182(a)(6)(A); use of fraudulent documents a for certain criminal aliens), and the INA 275(a)(1), 8 U.S.C. 1325(a)(1). The significant adverse discretionary factor Departments believe it is similarly Departments remain concerned by the for the purposes of asylum unless an appropriate to establish criteria for significant strain on their resources applicant arrived in the U.S. directly considering discretionary asylum required to apprehend, process, and from the applicant’s home country.35 claims. This proposed regulation would adjudicate the cases of the growing Furthermore, the Departments build on the BIA’s guidance regarding number of aliens who illegally enter the propose nine adverse factors, the discretionary asylum determinations United States putatively in order to seek applicability of any of which would and codify specific factors in the asylum. See, e.g., Aliens Subject to a Bar ordinarily result in the denial of asylum regulations for the first time. on Entry Under Certain Presidential as a matter of discretion, similar to how Accordingly, the Departments Proclamations; Procedures for discretion is considered for other propose three specific but Protection Claims, 83 FR 55934; see also applications. See, e.g., 8 CFR 212.7(d), nonexhaustive factors that adjudicators United States ex rel. Hintopoulos v. 1212.7(d) (waiver of certain grounds of must consider when determining Shaughnessy, 353 U.S. 72, 78 (1957) inadmissibility). If the adjudicator whether an applicant merits the relief of (observing that where the statute ‘‘does determines that any of these nine asylum as a matter of discretion: not state what standards are to guide the circumstances apply during the course (1) An alien’s unlawful entry or Attorney General in the exercise of his of the discretionary review, the unlawful attempted entry into the discretion’’ in adjudicating a adjudicator may nevertheless favorably United States unless such entry or discretionary benefit request, ‘‘[s]urely it exercise discretion in extraordinary attempted entry was made in immediate is not unreasonable for him to take circumstances, such as those involving flight from persecution or torture in a cognizance of present-day conditions’’ national security or foreign policy contiguous country; and relevant congressional considerations, or if the alien (2) subject to certain exceptions, the enactments).34 demonstrates, by clear and convincing failure of an alien to seek asylum or Second, as previously explained, the evidence, that the denial of asylum refugee protection in at least one Departments believe that the failure to country through which the alien seek asylum or refugee protection in at 35 For aliens from countries contiguous to the transited before entering the United least one country through which an United States or who arrive directly (such as by air) States; and from their home country—i.e., countries in which alien transited while en route to the the use of fraudulent documents to escape (3) an alien’s use of fraudulent United States may reflect an increased persecution may be coterminous with the use of documents to enter the United States, likelihood that the alien is misusing the such documents to enter the United States— this unless the alien arrived in the United asylum system as a mechanism to enter factor does not impact case law that the use of States by air, sea, or land directly from fraudulent documents to escape the country of and remain in the United States rather persecution should not itself be a significant the applicant’s home country without adverse factor. See Lin v. Gonzales, 445 F.3d 127, transiting through any other country. 34 The Departments note that this adverse factor 133 (2d Cir. 2006) (noting a distinction ‘‘between The adjudicator must consider all does not conflict with section 208(a)(1) of the INA, the presentation of a fraudulent document in three factors, if relevant, during every 8 U.S.C. 1158(a)(1), which provides that ‘‘[a]ny immigration court in support of an asylum alien who is physically present in the United States application and the use of a fraudulent document asylum adjudication. If one or more of or who arrives in the United States (whether or not to escape immediate danger or imminent these factors applies to the applicant’s at a designated port of arrival * * *), irrespective persecution’’); Matter of Pula, 19 I&N Dec. at 474 case, the adjudicator would consider of such alien’s status, may apply for asylum.’’ The (noting a difference between ‘‘[t]he use of such factors to be significantly adverse consideration of the alien’s unlawful manner of fraudulent documents to escape the country of entry as a discretionary negative factor does not persecution’’ and ‘‘entry under the assumed for purposes of the discretionary limit the alien’s right or ability to apply for asylum. identity of a United States citizen, with a United determination, though the adjudicator Instead, an alien who has unlawfully entered the States passport, which was fraudulently obtained’’). should also consider any other relevant United States is at risk of the same discretionary For all other aliens, however, the use of fraudulent facts and circumstances to determine denial of asylum as any other applicant. The related documents would be a significant adverse factor. To issue of whether a regulatory bar to asylum the extent that this provision may conflict with any whether the applicant merits asylum as eligibility based on manner of entry is ‘‘consistent’’ prior holdings by the Board of Immigration a matter of discretion. The Departments with section 208(a)(1)’s ‘‘irrespective’’ clause is Appeals, this rule would supersede such decisions believe that the inclusion of the currently being litigated. See supra note 14. if it is finalized as drafted.

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would result in an exceptional and procedural or substantive defect in the Matter of Diaz & Lopez, 25 I&N Dec. extremely unusual hardship to the alien. underlying criminal proceedings. See 188, 189 (BIA 2010). Cf. id. These factors build on prior Matter of Thomas & Thompson, 27 I&N Fifth, failure to file taxes or fulfill precedent from the Attorney General. Dec. 674, 674–75 (A.G. 2019) (holding related obligations would be another See Matter of Jean, 23 I&N Dec. 373, 385 that state court orders unrelated to the adverse factor. Subject to some (A.G. 2002) (providing that aliens who merits of an underlying criminal exceptions, aliens are generally required have committed violent or dangerous proceeding have no effect on the to file federal income tax returns, as offenses will not be granted asylum as validity of the conviction for either a resident or nonresident alien. 26 a matter of discretion absent immigration purposes); see also Matter U.S.C. 6012, 7701(b); 26 CFR 1.6012– extraordinary circumstances or a of Pickering, 23 I&N Dec. 621, 624–25 1(a)(1)(ii), (b).37 This rule would hold all showing of exceptional and extremely (BIA 2003) (holding that a conviction asylum applicants to the same standards unusual hardship); see also Matter of that is vacated for reasons solely related as most individuals in the United States Castillo-Perez, 27 I&N Dec. 664, 670–71 to rehabilitation or immigration who are required to file federal, state, (A.G. 2019) (noting that aliens with hardships is not eliminated for and local taxes, as individuals who are multiple driving-under-the-influence immigration purposes), rev’d on other required to file taxes are subject to convictions would likely be denied grounds, Pickering v. Gonzales, 465 negative consequences should said 36 cancellation of removal as a matter of F.3d 263, 267–70 (6th Cir. 2006). filings and associated obligations not be discretion due to the seriousness and Circuit courts of appeals have met. See, e.g., Md. Code, Tax-Gen. 10– repeated nature of the offenses). consistently accepted this principle, 804, 10–805(a) (2013) (subject to Each of the nine factors addresses deeming Pickering reasonable and exclusion of certain types of income, a issues that the adjudicators might consistent with congressional intent. Maryland resident required to file a otherwise spend significant time See, e.g., Saleh v. Gonzales, 495 F.3d 17, federal income tax return is also evaluating and adjudicating. First, this 23–25 (2d Cir. 2007) (collecting cases). required to file a state income tax rule would require a decision-maker to As the Attorney General has explained, return); Ind. Code, 6–3–4–1 (2019) consider whether an alien has spent giving effect to judicial decisions that (persons whose income meets federal more than 14 days in any one country modified sentences in some manner for filing threshold are required to file a that permitted application for refugee, the sole purpose of mitigating state return). asylee, or similar protections prior to immigration consequences would entering or arriving in the United States. frustrate Congress’s intent in setting Sixth, this rule would consider as an Second, this rule would make transit forth those consequences for aliens adverse factor having had two or more through more than one country prior to convicted of certain crimes. See Matter prior asylum applications denied for arrival in the United States a significant of Thomas & Thompson, 27 I&N Dec. at any reason. adverse factor. Both of these factors are 682 (explaining that by enacting the Seventh, the rule would also consider supported by existing law surrounding definition of ‘‘conviction’’ at section as an adverse factor having withdrawn firm resettlement and aliens who can be 101(a)(48) of the INA, 8 U.S.C. with prejudice or abandoned an asylum removed to a safe third country. See 1101(a)(48), ‘‘Congress made clear that application. This rule would thereby INA 208(a)(2)(A), (b)(2)(A)(vi), 8 U.S.C. immigration consequences should flow disfavor abusive prior or multiple 1158(a)(2)(A), (b)(2)(A)(vi); see also from the original determination of guilt. applications. Asylum applications take Yang v. INS, 79 F.3d 932, 935–39 (9th In addition, Congress ensured a significant portion of processing time Cir. 1996) (upholding a discretionary uniformity in the immigration laws by and already constitute half of the docket firm resettlement bar, and rejecting the avoiding the need for immigration in immigration court. This rule would premise that such evaluation is arbitrary judges to examine the post-conviction minimize abuse of the system—and and capricious or that it prevents procedures of each State’’); see also allow for meritorious claims to be heard adjudicators from exercising discretion). Saleh, 495 F.3d at 25 (‘‘When a more efficiently—by disfavoring Recognizing that individual conviction is amended nunc pro tunc repeated applications when prior circumstances of an alien’s presence in solely to enable a defendant to avoid a third country or transit to the United immigration consequences, in contrast 37 The Internal Revenue Service (‘‘IRS’’) uses two States may not necessarily warrant to an amendment or vacatur on the tests to determine whether an alien is considered adverse discretionary consideration in a resident alien of the United States for tax merits, there is no reason to conclude purposes: The ‘‘green card’’ test and the all instances, the proposed rule does that the alien is any less suitable for ‘‘substantial presence’’ test. An alien meets the acknowledge exceptions to these two removal.’’). ‘‘green card’’ test if USCIS has issued the alien a considerations where an alien’s Fourth, unlawful presence of more registration card, Form I–551, designating the alien application for protection in the as a lawful permanent resident. IRS, Alien than one year’s cumulative duration Residency—Green Card Test, https://www.irs.gov/ relevant third country has been denied, prior to filing an application for asylum individuals/international-taxpayers/alien- where the alien is a victim of a severe would be considered a significant residency-green-card-test (last updated Feb. 20, form of human trafficking as defined in adverse factor, consistent with the 2020). An alien meets the ‘‘substantial presence’’ 8 CFR 214.11, or where the alien was unlawful presence bar, INA test if he or she has been physically present in the present in or transited through only United States for 31 days of the current year and 212(a)(9)(B)(i)(II), 8 U.S.C. 183 days during the three-year period that includes countries that were, at the relevant time, 1182(a)(9)(B)(i)(II), and the permanent the current year and the two years immediately not parties to the Refugee Convention, bar under section 212(a)(9)(C) of the prior, including all of the following: (1) All days an Refugee Protocol, or CAT. INA, 8 U.S.C. 1182(a)(9)(C). See also alien was present in the current year, (2) one-third Third, adjudicators should consider of the days the alien was present in the first year before the current year, and (3) one-sixth of the days criminal convictions that remain valid 36 The Departments published a joint rule on the alien was present in the second year before the for immigration purposes as significant December 19, 2019, that, inter alia, would provide current year. IRS, Substantial Presence Test, https:// adverse factors. A conviction remains regulatory guidance regarding the immigration www.irs.gov/individuals/international-taxpayers/ valid for immigration purposes despite consequences of criminal convictions that have substantial-presence-test (last updated Jan. 15, been vacated, expunged, or modified. See 2020). There are certain exceptions to this rule. Id. a reversal, vacatur, expungement, or Procedures for Asylum and Bars to Asylum Non-resident aliens who pass the ‘‘substantial modification of conviction or sentence if Eligibility, 84 FR 69640 (Dec. 19, 2019) (proposed presence’’ test are treated as resident aliens for tax the alteration is not related to a amendments to 8 CFR 208.13 and 1208.13). purposes.

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applications have been abandoned or their cases, as is otherwise required for IIRIRA’s enactment, the Attorney withdrawn. motions to reopen, and aid in the General also included firm resettlement Eighth, DHS already may dismiss the efficient processing of asylum as a bar to asylum under section 208 of case of an alien who fails to attend his applications before EOIR. Cf. INA the INA, 8 U.S.C. 1158, by regulation. or her asylum interview, without prior 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B); See Aliens and Nationality; Refugee and authorization or in the absence of Wang v. BIA, 508 F.3d 710, 715–16 (2d Asylum Procedures, 45 FR 37392, 37394 exceptional circumstances. INA Cir. 2007) (discussing the requirement (June 2, 1980) (adding part 208 to 208(d)(5)(A)(v), 8 U.S.C. of acting with due diligence in order to chapter I of 8 CFR, including the 1158(d)(5)(A)(v). Such an applicant may establish equitable tolling of the filing instruction at 8 CFR 208.8(f)(1)(ii) that also ‘‘be otherwise sanctioned for such deadline for motions to reopen asylum a request for asylum would be denied if failure.’’ Id. The Departments’ proceedings premised upon an the alien ‘‘has been firmly resettled in consideration of an alien’s failure to allegation of ineffective assistance of a foreign country’’); 40 see also Yang, 79 attend the asylum interview,38 unless counsel). F.3d at 935–39 (according Chevron the alien demonstrates by a The factors set forth in this rule do deference to the inclusion of firm preponderance of the evidence the not affect the adjudicator’s ability to resettlement as a bar to asylum in the existence of exceptional circumstances consider whether there exist regulations). or that the interview notice was not extraordinary circumstances, such as DOJ first defined ‘‘firm resettlement’’ mailed to the last address provided by those involving national security or in the context of asylum applications in the alien or the alien’s representative foreign policy considerations, or 1990. Aliens and Nationality; Asylum (and neither the alien nor the alien’s whether the denial of asylum would and Withholding of Deportation representative received notice of the result in an exceptional and extremely Procedures, 55 FR 30674, 30683–84 interview), as an adverse discretionary unusual hardship to the alien. Cf. Matter (July 27, 1990) (adding 8 CFR 208.15 to factor is a reasonable additional of Jean, 23 I&N Dec. at 385 (‘‘I am highly part 208 of chapter 1 of 8 CFR). At the sanction under section 208(d)(5)(A)(v) disinclined to exercise my discretion— time, DOJ did not provide an of the INA, 8 U.S.C. 1158(d)(5)(A)(v). As except, again, in extraordinary explanation for the chosen definition, with the failure to appear in circumstances, such as those involving although it was similar to the existing immigration court, failure to appear for national security or foreign policy definition of firm resettlement for an asylum interview before DHS wastes considerations, or cases in which an refugees. Id. at 30678. Aside from government resources that could have alien clearly demonstrates that the technical edits, and minor updates to been used to adjudicate other denial of relief would result in ensure gender neutrality and change applications. See DHS, Affirmative exceptional and extremely unusual references from ‘‘nation’’ to ‘‘country,’’ Asylum Application Statistics and hardship—on behalf of dangerous or the definition of firm resettlement has Decisions Annual Report 3 (June 20, violent felons seeking asylum.’’). This remained the same for nearly 30 years. 2016) (reporting 2,439 cases that USCIS approach supersedes the Board’s See 8 CFR 208.15, 1208.15. referred to immigration judges because previous approach in Matter of Pula that Due to the increased availability of asylum applicants failed to appear for past persecution or a strong likelihood resettlement opportunities 41 and the interviews or withdrew their of future persecution ‘‘should generally interest of those genuinely in fear of applications and were not in lawful outweigh all but the most egregious persecution in attaining safety as soon immigration status during Fiscal Year adverse factors.’’ 19 I&N Dec. at 474. as possible, the Departments now 2015). Especially given that an applicant may Ninth, aliens who are subject to a still seek non-discretionary statutory Rosenberg v. Woo, 402 U.S. 49, 54–55 (1971) (discussing the inclusion of firm resettlement final order of removal may file a motion withholding of removal and protection considerations in the Displaced Persons Act of 1948 to reopen their proceedings before an under the CAT regulations, the and Refugee Relief Act of 1953, and the subsequent immigration judge to seek asylum if Departments believe that the inclusion history). there is a change in country conditions of the proposed adverse discretionary 40 DOJ also included a definition of ‘‘firm resettlement’’ in the context of refugee status and the underlying evidence of changed factors in the rule will ensure that determinations under section 207 of the INA, 8 conditions is material and was not immigration judges and asylum officers U.S.C. 1157, in 1980, providing generally that a available or could not have been properly consider, in all cases, whether refugee is considered to be ‘‘firmly resettled’’ if he discovered at the time of the prior every applicant merits a grant of asylum had been offered resident status, citizenship, or some other type of permanent resettlement by hearing. INA 240(c)(7), 8 U.S.C. as a matter of discretion, even if the another nation and has travelled to and entered that 1229a(c)(7). In such situations, applicant has otherwise demonstrated nation as a consequence of his flight from adjudicators should consider as a asylum eligibility. persecution. A refugee will not be considered significant adverse factor the failure to ‘‘firmly resettled,’’ however, if he establishes, to the 7. Firm Resettlement satisfaction of the federal official reviewing the file such a motion within one year of the case, that the conditions of his residence in that change in country conditions. See INA By statute, an alien who ‘‘was firmly nation have been so substantially and consciously 240(c)(7)(C)(ii), 8 U.S.C. resettled in another country prior to restricted by the authorities of that nation that he arriving in the United States’’ is has not in fact been resettled. See Aliens and 1229a(c)(7)(C)(ii); 8 CFR 1003.2(c)(3)(ii), Nationality; Refugee and Asylum Procedures, 45 FR 1003.23(b)(4)(i). The Departments ineligible for asylum. INA at 37394. This definition continues to apply in believe that such a factor would 208(b)(2)(A)(vi), 8 U.S.C. substantially similar form to DHS determinations appropriately incentivize aliens to 1158(b)(2)(A)(vi). This bar to asylum regarding the admission of refugees. 8 CFR 207.1(b). was first included in the asylum laws by The Departments do not propose any changes to the exercise due diligence with regard to definition or application of the firm resettlement IIRIRA in 1996, but Congress added it as bar for refugees in this rule. 38 On November 14, 2019, DHS proposed a prohibition to entry as a refugee from 41 Forty-three countries have signed the Refugee modifications to the asylum process, including abroad in 1980. Refugee Act of 1980, Convention since 1990. See United Nations High changes to the provisions related to failing to sec. 201(b), 94 Stat. 103 (adding INA Commissioner for Refugees, States Parties to the appear for an asylum interview. See Asylum 39 1951 Convention relating to the Status of Refugees Application, Interview, and Employment 207(c)(1), 8 U.S.C. 1157(c)(1)). Before and the 1967 Protocol, https://www.unhcr.org/en- Authorization for Applicants, 86 FR 62374 (Nov. us/protection/basic/3b73b0d63/states-parties-1951- 14, 2019). The Departments do not believe the 39 The firm resettlement concept has an even convention-its-1967-protocol.html (last visited May proposals conflict, but welcome public comment. longer history in the immigration laws. See 20, 2020).

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propose to revise the definition of firm Dec. at 502 (quoting Elzour v. Ashcroft, To the extent any BIA decisions relied resettlement that applies to asylum 378 F.3d 1143, 1152 (10th Cir. 2004). It on prior regulatory language and remain adjudications at 8 CFR 208.15 and follows a fortiori, then, that an alien to inconsistent with the proposed new 1208.15. Specifically, the Departments whom an offer of permanent legal status regulatory language, the proposed propose to specify three circumstances was actually made may be considered to changes would expressly overrule those under which an alien would be have firmly resettled, Matter of K–S–E–, BIA decisions. considered firmly resettled: 27 I&N Dec. at 819–20, and that such an 8. Rogue Officials (1) The alien either resided or could offer may not be ‘‘negated by the alien’s have resided in any permanent legal unwillingness or reluctance to satisfy In order to demonstrate eligibility for immigration status or any non- the [reasonable] terms for acceptance,’’ withholding of removal or deferral of permanent but potentially indefinitely id. at 821. Not only do these changes removal under the CAT regulations, an renewable legal immigration status recognize that an alien fleeing alien must demonstrate that it is more (including asylee, refugee, or similar persecution would ordinarily be likely than not that he or she will be status, but excluding a status such as a expected to seek refuge at the first tortured in the country of removal. See tourist) in a country through which the available opportunity in another 8 CFR 1208.16(c)(2). Torture is defined alien transited prior to arriving in or country where they would not have a as causing ‘‘severe pain or suffering, entering the United States, regardless of reasonable fear of persecution or torture, whether physical or mental,’’ and it whether the alien applied for or was but they will also ensure that the must be intentionally inflicted ‘‘by or at offered such status, cf. Matter of asylum system is used by those in the instigation of or with the consent or K–S–E–, 27 I&N Dec. 818, 819 (BIA genuine need of immediate protection, acquiescence of a public official or other 2020) (‘‘Permanent resettlement exists not by those who have chosen the person acting in an official capacity,’’ where there is an available offer that United States as a destination for other among other requirements. 8 CFR realistically permits an individual’s reasons and then rely on the asylum 1208.18(a)(1). The regulations do not indefinite presence in the country.’’); system to reach that destination. See provide further guidance for Matter of A–G–G–, 25 I&N Dec. 486, 502 Matter of A–G–G–, 25 I&N Dec. at 503 determining what sorts of officials (BIA 2011) (‘‘The existence of a legal (clarifying that the purpose of the firm constitute ‘‘public officials,’’ including mechanism in the country by which an settlement bar is to ‘‘limit refugee whether an official such as a police alien can obtain permanent residence protection to those with nowhere else to officer is a public official for the may be sufficient to make a prima facie turn’’). purposes of the CAT regulations if he or showing of an offer of firm resettlement The Departments further propose to she acts in violation of official policy or * * *. Moreover, a determination of his or her official status—in other firm resettlement is not contingent on specify that the firm resettlement bar applies ‘‘when the evidence of record words, a ‘‘rogue’’ police official. whether the alien applies for that When faced with questions of such indicates that the firm resettlement bar status.’’ (citations and footnote ‘‘rogue’’ officials, the federal courts have may apply,’’ and to specifically allow omitted)); generally implied from the lack of both DHS and the immigration judge to (2) the alien physically resided further explanation regarding the first raise the issue based on the record voluntarily, and without continuing to definition of ‘‘public official’’ that no evidence. This proposal would make suffer persecution, in any one country exception excluding ‘‘rogue’’ officials clear that the alien would continue to for one year or more after departing his from the definition exists. The Ninth bear the burden to demonstrate that the country of nationality or last habitual Circuit Court of Appeals recently firm resettlement bar does not apply, residence and prior to arrival in or entry provided a particularly detailed consistent with 8 CFR 1240.8(d). into the United States; or explanation of this point: (3) (i) the alien is a citizen of a Finally, the Departments propose that country other than the one where the the firm resettlement of a parent or The statute and regulations do not alien alleges a fear of persecution and parents with whom a child was residing establish a ‘‘rogue official’’ exception to CAT at the time shall be imputed to the relief. The regulations say that torture, for the alien was present in that country purposes of relief, has to be ‘‘at the prior to arriving in the United States, or child. Although the Departments have instigation of or with the consent or (ii) the alien was a citizen of a country had no prior settled policy necessarily acquiescence of a public official or other other than the one where the alien imputing the firm resettlement of person acting in an official capacity.’’ The alleges a fear of persecution, the alien parents to a child, Holder v. Martinez four policemen were ‘‘public officials,’’ even was present in that country prior to Gutierrez, 566 U.S. 583, 596 n.4 (2012), though they were local police and state or arriving in the United States, and the the imputation proposed in this rule is federal authorities might not similarly alien renounced that citizenship prior to consistent with both case law and acquiesce. Since the officers were apparently or after arriving in the United States. recognition of the practical reality that off-duty when they tortured Barajas-Romero, These proposed changes would a child generally cannot form a legal they were evidently not acting ‘‘in an official capacity,’’ but the regulation does not require expand the firm resettlement bar to intent to remain in one place. See, e.g., that the public official be carrying out his include forms of relief that were Matter of Ng, 12 I&N Dec. 411 (Reg. official duties, so long as he is the actor or available to an alien in a country in Comm’r 1967) (firm resettlement of knowingly acquiesces in the acts. The which he or she resided before traveling father is imputed to a child who resided regulation uses the word ‘‘or’’ between the to the United States, even if the alien with his resettled family); Vang v. INS, phrases ‘‘inflicted by * * * a public official’’ did not affirmatively apply for or accept 146 F.3d 1114, 1116–17 (9th Cir. 1998) and ‘‘acting in an official capacity.’’ The such relief. If an alien was legally (‘‘We follow the same principle in word ‘‘or’’ can only mean that either one ‘‘entitled to permanent refuge in another determining whether a minor has firmly suffices, so the torture need not be both by country’’ in which the alien resided, resettled in another country, i.e., we a public official and also that the official is acting in his official capacity. An ‘‘and’’ that entitlement may result in the alien look to whether the minor’s parents construction would require that the being firmly resettled there, even if the have firmly resettled in a foreign conjunction be ‘‘and.’’ The record leaves no alien ‘‘fail[ed] to take advantage of [that country before coming to the United room for doubt that the four policemen were country’s] procedures for obtaining States, and then derivatively attribute public officials who themselves inflicted the [such] relief.’’ Matter of A–G–G–, 25 I&N the parents’ status to the minor.’’). torture.

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Barajas-Romero v. Lynch, 846 F.3d torture that occurs as a wholly private F–, 27 I&N Dec. 82, 90 (BIA 2017); see 351, 362–63 (9th Cir. 2017); see also act or, in terms more familiar in U.S. also S. Exec. Rep. No. 101–30, at 9. The Rodriguez-Molinero v. Lynch, 808 F.3d law, it applies to torture inflicted ‘under Departments further propose to clarify 1134, 1139 (7th Cir. 2015) (‘‘Nor is the color of law.’’’). Further, the Federal in this rule that, for purposes of the CAT issue, as the immigration judge opined, statute partially implementing CAT in regulations, ‘‘willful blindness’’ means whether the police officers who tortured the criminal law context uses a color of that ‘‘the public official or other person the petitioner ‘were rogue officers law descriptor as well. See 18 U.S.C. acting in an official capacity was aware individually compensated by Jose to 2340(1) (‘‘‘[T]orture’ means an act of a high probability of activity engage in isolated incidents of committed by a person acting under the constituting torture and deliberately retaliatory brutality, rather than color of law specifically intended to avoided learning the truth; it is not evidence of a broader pattern of inflict severe physical or mental pain or enough that such public official acting governmental acquiescence in torture.’ suffering (other than pain or suffering in an official capacity or other person It is irrelevant whether the police were incidental to lawful sanctions) upon acting in an official capacity was rogue (in the sense of not serving the another person within his custody or mistaken, recklessly disregarded the interests of the Mexican government) or physical control.’’). As the BIA has truth, or negligently failed to inquire.’’ not.’’). But see Suarez-Valenzuela v. explained, ‘‘the key consideration in Proposed 8 CFR 208.18(a)(7), Holder, 714 F.3d 241, 248 (4th Cir. determining if a public official was 1208.18(a)(7). This proposed definition 2013) (upholding the BIA’s finding that acting under color of law is whether he is drawn from well-established legal a rogue police officer who harmed the was able to engage in torturous conduct principles. See, e.g., Global-Tech respondent ‘‘acted out of fear that the because of his government position or if Appliances, Inc. v. SEB S.A., 563 U.S. government would punish him and not he could have done so without any 754, 769–70 (2011); United States v. with any form of government connection to the government. Issues to Hansen, 791 F.3d 863, 868 (8th Cir. approval’’); Wang v. Ashcroft, 320 F.3d consider in making this determination 2015); United States v. Heredia, 483 130, 144 (2d Cir. 2003) (‘‘Moreover, include whether government F.3d 913, 918 n.4, 924 (9th Cir. 2007) although the BIA was bound to consider connections provided the officer access (en banc); Roye v. Att’y Gen. of U.S., 693 any past torture inflicted upon Wang by to the victim, or to his whereabouts or F.3d 333, 343 n.13 (3d Cir. 2012). Chinese officials, 8 CFR 208.16(c)(3), other identifying information; whether Additionally, the rule clarifies the Wang failed to establish that his alleged the officer was on duty and in uniform second part of the two-part test for previous beating was anything more at the time of his conduct; and whether acquiescence set out in the Senate’s than a deviant practice carried out by the officer threatened to retaliate understanding in the CAT ratification one rogue military official.’’). through official channels if the victim documents. See 136 Cong. Rec. S17486– The Departments propose revising 8 reported his conduct to authorities.’’ 01, 1990 WL 168442 (Oct. 27, 1990). In CFR 208.18(a)(1), (7) and 1208.18(a)(1), Matter of O–F–A–S, 27 I&N Dec. 709, the ratification process, the United (7) to clarify (1) that pain or suffering 718 (BIA 2019). This proposed States government was concerned that inflicted by, or at the instigation of or amendment to 8 CFR 208.18 and the definition of torture needed to be with the consent or acquiescence of, a 1208.18 clarifies that the requirement clear enough to give officials due public official is not torture unless it is that the individual be acting in an process notice of what conduct was done while the official is acting in his official capacity applies to both a criminal. See Convention Against or her official capacity (i.e. under ‘‘color ‘‘public official,’’ such as a police Torture: Hearing Before the S. Foreign of law’’) and (2) that pain or suffering officer, and an ‘‘other person,’’ such as Relations Comm., S. Hrg. No. 101–718, inflicted by, or at the instigation of or an individual deputized to act on the 101st Cong., 2d Sess. 14 (1990) with the consent or acquiescence of, a government’s behalf. (testimony of Mark Richard, Deputy public official not acting under color of The Departments also propose to Assistant Att’y Gen., Criminal Division, law (i.e., a ‘‘rogue official’’) does not clarify the definition of ‘‘acquiescence U.S. Department of Justice). The two constitute a ‘‘pain or suffering inflicted of a public official’’ at 8 CFR steps of the acquiescence requirement, by or at the instigation of or with the 208.18(a)(7) and 1208.18(a)(7). See corresponding to a mens rea and an consent or acquiescence of a public Scarlett v. Barr, llF.3d ll, 2020 WL actus reus requirement, were included official or other person acting in an 2046544, *13–14 (2d Cir. April 28, in the list of understandings to clarify official capacity,’’ even if such actions 2020) (discussing the need for further that ‘‘to be culpable under the [CAT] cause pain and suffering that could rise agency guidance concerning certain * * * the public official must have had to the severity of torture. Nothing in aspects of the ‘‘acquiescence’’ standard). prior awareness of [the activity CAT or the CAT regulations issued The current definition provides that the constituting torture] and must have pursuant to the implementing ‘‘official acquiescence’’ standard breached his legal responsibility to legislation indicates that any violent ‘‘requires that the public official, prior intervene to prevent the activity.’’ Id. action of someone who happens to be to the activity constituting torture, have The rule clarifies that acquiescence is employed by a government entity awareness of such activity and not established by prior awareness of always constitutes inflicting, instigating, thereafter breach his or her legal the activity alone, but requires an consenting to, or acquiescing in severe responsibility to intervene to prevent omission of an act that the official had harm or suffering by a public official such activity.’’ 8 CFR 208.18(a)(7), a duty to do and was able to do. Cf. even when that employee is off-duty or 1208.18(a)(7). The Departments propose Model Penal Code sec. 2.01(1) (‘‘A not acting in any official governmental to clarify that, as several courts of person is not guilty of an offense unless capacity. Indeed, the U.S. ratification appeals and the BIA have recognized, his liability is based on conduct that history of the CAT specifically approves ‘‘awareness’’—as used in the CAT includes a voluntary act or the omission of a ‘‘color of law’’ analysis. See, e.g., S. ‘‘acquiescence’’ definition—requires a to perform an act of which he is Exec. Rep. No. 101–30, at 14 (1990) finding of either actual knowledge or physically capable.’’). First, the official (‘‘Thus, the Convention applies only to willful blindness. See, e.g., Silva- or other person in question must have torture that occurs in the context of Rengifo v. Att’y Gen. of U.S., 473 F.3d been charged with preventing the governmental authority, excluding 58, 70 (3d Cir. 2007); Matter of J–G–D– activity as part of his or her duties. So,

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for instance, an official who is not unauthorized ‘‘third parties’’ but are and courts of appeals raising an charged with preventing crime or who silent, save by exception, as to who assortment of challenges to their is outside his or her jurisdiction would constitutes an unauthorized third party. immigration and custody status. not have a legal responsibility to Under the exceptions for nondisclosure Although the current regulation allows prevent activity constituting torture, contained in 8 CFR 208.6(c) and disclosure where the suit arises from the even if that person was aware of the 1208.6(c), certain limited categories of adjudication of an asylum application or activity. See, e.g., Ramirez-Peyro v. persons and entities may receive of which the asylum application ‘‘is a Holder, 574 F.3d 893, 905 (8th Cir. otherwise-confidential asylum-related part,’’ there is no clear exception 2009) (remanding for further analysis by or other pertinent information for covering disclosures in other civil the Board on whether police officers certain purposes. This includes a immigration litigation in which it is breached their legal duty to intervene disclosure to any U.S. government necessary for the Government to when they declined to arrest official or contractor having a need to disclose this information in order to themselves, their co-workers, and other examine information in connection with fully defend the Government’s position. individuals who assaulted the the adjudication of an asylum As such, the Department proposes to applicant). Second, such a person does application or consideration of a amend 8 CFR 208.6 and 8 CFR 1208.6 not breach a legal duty to intervene if credible fear or reasonable fear claim. 8 to specify that to the extent not already the person is unable to intervene, or if CFR 208.6(c)(1)(i)–(ii) and specifically permitted, and without the the person intervenes, but is 1208.6(c)(1)(i)–(ii). Accordingly, DHS necessity of seeking the exercise of the nevertheless unable to prevent the and EOIR employees, and aliens’ Attorney General’s or Secretary’s activity. See, e.g., Martinez Manzanares representatives of record, are not discretion under paragraphs 208.6(a) v. Barr, 925 F.3d 222, 229 (5th Cir. considered unauthorized third parties and 1208.6(a), respectively, the 2019); Zaldana Menijar v. Lynch, 812 for purposes of the existing regulation.42 Government may disclose 43 all relevant F.3d 491, 502 (6th Cir. 2015); Garcia v. Further, the Attorney General and and applicable information in or Holder, 746 F.3d 869, 873–74 (8th Cir. Secretary of Homeland Security have pertaining to the application for asylum, 2014); Garcia-Milian v. Holder, 755 F.3d the discretion to disclose any such statutory withholding of removal, and 1026, 1034 (9th Cir. 2014); Ferry v. information to any party. 8 CFR protection under the CAT regulations as Gonzales, 457 F.3d 1117, 1131 (10th Cir. 208.6(a), 1208.6(a). part of a federal or state investigation, 2006); Reyes-Sanchez v. U.S. Att’y Gen., The Departments propose changes to proceeding, or prosecution; as a defense 369 F.3d 1239, 1243 (11th Cir. 2004). 8 CFR 208.6 and 8 CFR 1208.6 to clarify to any legal action relating to the alien’s This aspect of the rule is meant to that information may be disclosed in immigration or custody status; an supersede any judicial decisions that certain circumstances that directly adjudication of the application itself or could be read to hold that an official relate to the integrity of immigration an adjudication of any other application actor could acquiesce in torturous proceedings, including situations in or proceeding arising under the activities that he or she is unable to which there is suspected fraud or immigration laws; pursuant to any state prevent. See, e.g., Pieschacon-Villegas v. improper duplication of applications or or federal mandatory reporting Att’y Gen., 671 F.3d 303, 311–12 (3d claims. An alien’s decision to apply for requirement; and to deter, prevent, or Cir. 2011); Sarhan v. Holder, 658 F.3d asylum necessarily entails the alien’s ameliorate the effects of child abuse. 649, 657–60 (7th Cir. 2011) (holding that decision to provide the Government the government’s ineffectiveness at with information necessary to determine E. Severability protecting women from honor killings whether the person deserves refuge in The Departments are proposing showed governmental acquiescence); the United States. Within the severability provisions in each of the see generally Nat’l Cable & Telecomms. immigration system in the United new 8 CFR parts. The Departments Ass’n v. Brand X internet Servs., 545 States, such information does not exist believe that the provisions of each new U.S. 967, 982 (2005). in a vacuum, and there is a clear need part function sensibly independent of D. Information Disclosure to ensure that the confidentiality other provisions. However, to protect provisions are not being used to shield the goals for which this rule is being The regulations at 8 CFR 208.6 and fraud and abuse that can only be proposed, the Departments are codifying 1208.6 govern the disclosure of uncovered by comparing applications their intent that the provisions be information contained in or pertaining and information across proceedings. severable so that, if necessary, the to an asylum application, credible fear Further, there is need to ensure that regulations can continue to function records, and reasonable fear records. other types of criminal activity are not without a stricken provision. The nondisclosure provisions in 8 CFR shielded from investigation and 208.6(a)–(b) and 1208.6(a)–(b) cover V. Regulatory Requirements prosecution due to the confidentiality ‘‘[i]nformation contained in or A. Regulatory Flexibility Act pertaining to any asylum application,’’ provisions. Furthermore, the proposed records pertaining to any credible fear changes allow the information to be The Departments have reviewed this or reasonable fear determination, and disclosed where it is necessary to the regulation in accordance with the other records kept by the Departments Government’s defense of any legal Regulatory Flexibility Act (5 U.S.C. that indicate that a specific alien has action relating to the alien’s 605(b)) and have determined that this applied for asylum or received a immigration or custody status. Aliens rule will not have a significant credible fear or reasonable fear routinely file suit in both district courts economic impact on a substantial interview or review thereof. The number of small entities. This 42 Further, the sharing of information between the regulation affects only individual aliens ‘‘asylum application’’ includes Departments regarding an alien in immigration information pertaining to statutory proceedings does not constitute a disclosure under and the Federal Government. withholding of removal, 8 U.S.C. these regulations and is otherwise excepted 1231(b)(3), and protection under the pursuant to 8 CFR 208.6(c) and 1208.6(c). As DHS 43 Nothing in the proposed rule would prohibit is a party to all proceedings before EOIR, any agencies from placing additional restrictions on the CAT regulations. See 8 CFR 208.3(b), records related to an aliens in such proceedings disclosure of information consistent with internal 1208.3(b). The regulations prohibit possessed by EOIR are also necessarily already policies as long as those policies do not conflict disclosing protected information to possessed by DHS. with the proposed regulatory language.

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Individuals do not constitute small proposed regulation does not change the claim and any alien who applies for entities under the Regulatory Flexibility nature of the role of an immigration asylum, statutory withholding of Act. judge or an asylum officer during removal, or protection under the CAT proceedings for consideration of regulations. The Departments note that B. Unfunded Mandates Reform Act of credible fear claims or asylum the proposed changes are likely to result 1995 applications. Notably, immigration in fewer asylum grants annually due to This rule will not result in the judges will retain their existing clarifications regarding the significance expenditure by state, local, and tribal authority to review de novo the of discretionary considerations and governments, in the aggregate, or by the determinations made by asylum officers changes to the definition of firm private sector, of $100 million or more in a credible fear proceedings, and will resettlement. However; because asylum in any one year, and it will not continue to control immigration court applications are inherently fact-specific, significantly or uniquely affect small proceedings. In credible fear and because there may be multiple governments. Therefore, no actions were proceedings, asylum officers will bases for denying an asylum deemed necessary under the provisions continue to evaluate the merits of claims application, neither DOJ nor DHS can of the Unfunded Mandates Reform Act for asylum, withholding of removal, and quantify precisely the expected of 1995. CAT protection for possible referral to decrease. As of April 24, 2020, EOIR C. Congressional Review Act the immigration judge. While this rule had 527,927 cases pending with an expands the bases on which an asylum asylum application. In FY 2019, at the This proposed rule is anticipated not officer may determine that a claim does immigration court level, EOIR granted to be a major rule as defined by section not merit referral (and, as a 18,816 asylum applications and denied 804 of the Congressional Review Act. consequence, make a negative fear 45,285 asylum applications. An This rule will not result in an annual determination), the alien will still be additional 27,112 asylum applications effect on the economy of $100 million able to seek review of that negative fear were abandoned, withdrawn, or or more; a major increase in costs or determination before the immigration otherwise not adjudicated. As of January prices; or significant adverse effects on judge. 1, 2020, USCIS had 338,931 competition, employment, investment, Immigration judges and asylum applications for asylum and for productivity, innovation, or on the officers are already trained to consider withholding of removal pending.44 In ability of United States-based all relevant legal issues in assessing a FY 2019, USCIS received 96,861 asylum enterprises to compete with foreign- credible fear claim or asylum applications, and approved 19,945 such based enterprises in domestic and application, and the proposed rule does applications.45 export markets. 5 U.S.C. 804(2). not propose any changes that would The Departments expect that the D. Executive Order 12866 and Executive make adjudications more challenging aliens most likely to be impacted by this Order 13563 (Regulatory Planning and than those that are already conducted. rule’s provisions are those who are Review) For example, immigration judges already unlikely to receive a grant of already consider issues of persecution, The proposed rule is considered by asylum under existing law. Assuming nexus, particular social group, DHS places those aliens into expedited the Departments to be a ‘‘significant frivolousness, firm resettlement, and regulatory action’’ under section 3(f)(4) removal proceedings, the Departments discretion in assessing the merit of an assess that it will be more likely that of Executive Order 12866 because it asylum application, and the provision of raises novel legal or policy issues. they would receive a more prompt clearer standards for considering those adjudication of their claims for asylum Accordingly, the regulation has been issues in the proposed regulation does submitted to the Office of Management or withholding of removal than they not add any operational burden or would under the existing regulations. and Budget (‘‘OMB’’) for review. increase the level of operational analysis Executive Orders 12866 and 13563 Depending on the individual required for adjudication. Accordingly, circumstances of each case, this rule direct agencies to assess all costs and the Departments do not expect the benefits of available regulatory would mean that such aliens would proposed changes to increase the likely not remain in the United States— alternatives and, if regulation is adjudication time for immigration court for years, potentially—pending necessary, to select regulatory proceedings involving asylum resolution of their claims. approaches that maximize net benefits applications or for reviews of negative (including potential economic, An alien who is ineligible for asylum fear determinations. may still be eligible to apply for the environmental, public health, and safety Depending on the manner in which protection of withholding of removal effects, distributive impacts, and DHS exercises its prosecutorial equity). Executive Order 13563 discretion for aliens potentially subject 44 See USCIS, Number of Service-wide Forms emphasizes the importance of using the to expedited removal, the facts and Fiscal Year to Date, by Quarter and Form Status, best available methods to quantify costs circumstances of each individual alien’s Fiscal Year 2020, https://www.uscis.gov/sites/ and benefits, reducing costs, situation, and the Departments’ default/files/USCIS/Resources/Reports%20 harmonizing rules, and promoting interpretation and implementation of and%20Studies/Immigration%20Forms%20Data/ All%20Form%20Types/Quarterly_All_Forms_ flexibility. the relevant regulations by individual FY2020Q1.pdf (last visited May 28, 2020). The proposed rule would change or adjudicators, the proposed changes may 45 See USCIS, Number of Service-wide Forms provide additional clarity for decrease the number of cases of aliens Fiscal Year to Date, by Quarter, and Form Status, adjudicators across many issues subject to expedited removal that result Fiscal Year 2019, https://www.uscis.gov/sites/ commonly raised by asylum in a full hearing on an application for default/files/USCIS/Resources/ Reports%20and%20Studies/Immigration%20Forms applications and would potentially asylum. In all cases, however, an alien %20Data/All%20Form%20Types/Quarterly_All_ streamline the overall adjudicatory will retain the opportunity to request Forms_FY19Q4.pdf (last visited May 28, 2020). process for asylum applications. immigration judge review of DHS’s The data in this report only include approvals or Although the proposed regulation initial fear determination. denials (i.e., asylum applicants otherwise in lawful status who were not found eligible for asylum by would provide clarity to asylum law The Departments propose changes USCIS). Denials do not include out-of-status cases and operational streamlining to the that may affect any alien subject to that were not found eligible for asylum and then credible fear review process, the expedited removal who makes a fear were referred by USCIS to immigration court.

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under section 241(b)(3) of the INA or F. Executive Order 12988 (Civil Justice estimated for an average respondent to withholding of removal under Reform) respond: The estimated total number of regulations issued pursuant to the This rule meets the applicable respondents for the information legislation implementing U.S. standards set forth in sections 3(a) and collection I–589 is approximately obligations under Article 3 of CAT. See 3(b)(2) of Executive Order 12988. 114,000, and the estimated hour burden INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 per response is 18 hours per response. CFR 208.16, 208.17 through 18, 1208.16, G. Paperwork Reduction Act The estimated number of respondents and 1208.17 through 18. For those DOJ and DHS invite comment on the providing biometrics is 110,000, and the aliens barred from asylum under this impact to the proposed collection of estimated hour burden per response is rule who would otherwise be positively information. In accordance with the 1.17 hours. (6) An estimate of the total public adjudicated for asylum, it is possible Paperwork Reduction Act, the burden (in hours) associated with the they would qualify for withholding information collection notice is collection: The total estimated annual (provided a bar to withholding did not published in the Federal Register to hour burden associated with this apply separate and apart from this rule). obtain comments regarding the proposed edits to the information collection of information in hours is To the extent there are any direct 2,180,700. impacts of this rule, they would almost collection instrument. Comments are encouraged and will be (7) An estimate of the total public exclusively fall on that population.46 burden (in cost) associated with the Further, the full extent of the impacts on accepted until August 14, 2020. All submissions received must include the collection: The estimated total annual this population is unclear and would cost burden associated with this depend on the specific circumstances OMB Control Number 1615–0067 in the body of the submission. Comments on collection of information is $46,968,000. and personal characteristics of each this information collection should H. Signature alien, and neither DHS nor DOJ collects address one or more of the following such data at such a level of granularity. The Acting Secretary of Homeland four points: Security, Chad F. Wolf, having reviewed Overall, the Departments assess that (1) Evaluate whether the collection of and approved this document, is operational efficiencies will likely result information is necessary for the proper delegating the authority to electronically from these proposed changes, which performance of the functions of the sign this document to Chad R. Mizelle, could, inter alia, reduce the number of agency, including whether the who is the Senior Official Performing meritless claims before the immigration information will have practical utility; the Duties of the General Counsel for courts, provide the Departments with (2) Evaluate the accuracy of the DHS, for purposes of publication in the the ability to more promptly grant relief agency’s estimate of the burden of the Federal Register. or protection to qualifying aliens, and collection of information, including the ensure that those who do not qualify for validity of the methodology and List of Subjects relief or protection are removed more assumptions used; 8 CFR Part 103 (3) Enhance the quality, utility, and efficiently than they are under current Administrative practice and rules. clarity of the information to be collected; and procedure, Authority delegations E. Executive Order 13132 (Federalism) (4) Minimize the burden of the (Government agencies), Fees, Freedom collection of information on those who of Information, Immigration, Privacy, This rule will not have substantial are to respond, including through the Reporting and recordkeeping direct effects on the States, on the use of appropriate automated, requirements, Surety bonds. relationship between the National electronic, mechanical, or other 8 CFR Part 208 Government and the States, or on the technological collection techniques or Administrative practice and distribution of power and other forms of information technology, procedure, Aliens, Immigration, responsibilities among the various e.g., permitting electronic submission of Reporting and recordkeeping levels of government. Therefore, in responses. accordance with section 6 of Executive requirements. Overview of Information Collection Order 13132, it is determined that this 8 CFR Part 235 (1) Type of Information Collection: rule does not have sufficient federalism Administrative practice and Revision of a Currently Approved implications to warrant the preparation procedure, Aliens, Immigration, Collection. of a federalism summary impact Reporting and recordkeeping (2) Title of the Form/Collection: statement. requirements. Application for Asylum and for 46 Because statutory withholding of removal has Withholding of Removal. 8 CFR Part 1003 a higher burden of proof, an alien granted such (3) Agency form number, if any, and Administrative practice and protection would necessarily also meet the statutory the applicable component of the DHS procedure, Aliens, Immigration, Legal burden of proof for asylum, but would not be sponsoring the collection: I–589; USCIS. services, Organization and functions otherwise eligible for asylum due to a statutory bar (4) Affected public who will be asked (Government agencies). or as a matter of discretion. Because asylum or required to respond, as well as a brief applications may be denied for multiple reasons 8 CFR Part 1208 and because the factual bases relevant for abstract: Primary: Individuals or application of the proposed changes are not tracked households. Form I–589 is necessary to Administrative practice and at a granular level, there is no precise data on how determine whether an alien applying for procedure, Aliens, Immigration, many otherwise grantable asylum applications may asylum or withholding of removal in the Reporting and recordkeeping be denied under this rule and, thus, there is no way United States is classified as refugee, requirements. to calculate precisely how many aliens will and is eligible to remain in the United nevertheless be granted withholding. Further, 8 CFR Part 1235 because the immigration judge would have to States. adjudicate the application in either case, there is no (5) An estimate of the total number of Administrative practice and cost to DOJ. respondents and the amount of time procedure, Aliens, Immigration,

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Reporting and recordkeeping § 208.1 General. (d) Political opinion. For purposes of requirements. * * * * * adjudicating an application for asylum under section 208 of the Act or an Department of Homeland Security (c) Particular social group. For application for withholding of removal purposes of adjudicating an application Accordingly, for the reasons set forth under section 241(b)(3) of the Act, a in the preamble, the Department of for asylum under section 208 of the Act political opinion is one expressed by or Homeland Security proposes to amend or an application for withholding of imputed to an applicant in which the 8 CFR parts 103, 208, and 235 as removal under section 241(b)(3) of the applicant possesses an ideal or follows: Act, a particular social group is one that conviction in support of the furtherance is based on an immutable or of a discrete cause related to political PART 103—IMMIGRATION BENEFITS; fundamental characteristic, is defined control of a state or a unit thereof. The BIOMETRIC REQUIRMENTS; with particularity, and is recognized as Secretary, in general, will not favorably AVAILABILITY OF RECORDS socially distinct in the society at adjudicate claims of aliens who claim a ■ question. Such a particular social group fear of persecution on account of a 1. The authority citation for part 103 cannot be defined exclusively by the continues to read as follows: political opinion defined solely by alleged persecutory acts or harms and generalized disapproval of, Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. must also have existed independently of 1101, 1103, 1304, 1356, 1356b, 1372; 31 disagreement with, or opposition to the alleged persecutory acts or harms criminal, terrorist, gang, guerilla, or U.S.C. 9701; Public Law 107–296, 116 Stat. that form the basis of the claim. The 2135 (6 U.S.C. 1 et seq.); E.O. 12356, 47 FR other non-state organizations absent 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 Secretary, in general, will not favorably expressive behavior in furtherance of a CFR part 2; Public Law 112–54, 125 Stat 550. adjudicate claims of aliens who claim a cause against such organizations related fear of persecution on account of ■ 2. Amend § 103.5 by to efforts by the state to control such ■ a. Revising paragraph (a) introductory membership in a particular social group organizations or behavior that is text; consisting of or defined by the following antithetical to or otherwise opposes the ■ b. Revising the first full sentence of circumstances: Past or present criminal ruling legal entity of the state or a legal paragraph (a)(1)(i); and activity or association (including gang sub-unit of the state. A person who has ■ c. Adding paragraph (d). membership); presence in a country been forced to abort a pregnancy or to The revisions and addition read as with generalized violence or a high undergo involuntary sterilization, or follows: crime rate; being the subject of a who has been persecuted for failure or recruitment effort by criminal, terrorist, refusal to undergo such a procedure or § 103.5 Reopening or reconsideration. or persecutory groups; the targeting of for other resistance to a coercive (a) Motions to reopen or reconsider the applicant for criminal activity for population control program, shall be proceedings or decisions on benefit financial gain based on perceptions of deemed to have been persecuted on requests in other than special wealth or affluence; interpersonal account of political opinion, and a agricultural worker and legalization disputes of which governmental person who has a well-founded fear that cases— authorities were unaware or he or she will be forced to undergo such (1) * * * uninvolved; private criminal acts of (i) General. Except where the Board a procedure or subject to persecution for which governmental authorities were has jurisdiction and as otherwise such failure, refusal, or resistance shall provided in 8 CFR parts 3, 210, 242, and unaware or uninvolved; past or present be deemed to have a well-founded fear 245a, when the affected party files a terrorist activity or association; past or of persecution on account of political motion, the official having jurisdiction present persecutory activity or opinion. may, for proper cause shown, reopen association; or status as an alien (e) Persecution. For purposes of the proceeding or reconsider the prior returning from the United States. This screening or adjudicating an application decision regarding the benefit request. list is nonexhaustive, and the substance for asylum under section 208 of the Act *** of the alleged particular social group, or an application for withholding of rather than the precise form of its * * * * * removal under section 241(b)(3) of the (d) The provisions of this part are delineation, shall be considered in Act, persecution requires an intent to separate and severable from one determining whether the group falls target a belief or characteristic, a severe another. In the event that any provision within one of the categories on the list. level of harm, and the infliction of a in this part is stayed, enjoined, not No alien shall be found to be a refugee severe level of harm by the government implemented, or otherwise held invalid, or have it decided that the alien’s life or of a country or by persons or an the remaining provisions shall freedom would be threatened based on organization that the government was nevertheless be implemented as an membership in a particular social group unable or unwilling to control. For independent rule and continue in effect. in any case unless that person first purposes of evaluating the severity of articulates on the record, or provides a * * * * * the level of harm, persecution is an basis on the record for determining, the extreme concept involving a severe level PART 208—PROCEDURES FOR definition and boundaries of the alleged of harm that includes actions so severe ASYLUM AND WITHHOLDING OF particular social group. A failure to that they constitute an exigent threat. REMOVAL define, or provide a basis for defining, Persecution does not encompass the a formulation of a particular social generalized harm that arises out of civil, ■ 3. The authority citation for part 208 group before an immigration judge shall criminal, or military strife in a country, continues to read as follows: waive any such claim for all purposes nor does it encompass all treatment that Authority: 8 U.S.C. 1101, 1103, 1158, 1226, under the Act, including on appeal, and the United States regards as unfair, 1252, 1282; Title VII of Public Law 110–229; any waived claim on this basis shall not offensive, unjust, or even unlawful or 8 CFR part 2. serve as the basis for any motion to unconstitutional. It does not include ■ 4. Amend § 208.1 by adding reopen or reconsider for any reason, intermittent harassment, including brief paragraphs (c), (d), (e), (f), and (g) to including a claim of ineffective detentions; threats with no actual effort read as follows: assistance of counsel. to carry out the threats; or, non-severe

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economic harm or property damage, (1) * * * of removal under section 241(b)(3) of though this list is nonexhaustive. The (ix) An alien found to have a credible the Act, or protection under regulations existence of laws or government policies fear of persecution, reasonable issued pursuant to the Convention that are unenforced or infrequently possibility of persecution, or reasonable Against Torture’s implementing enforced do not, by themselves, possibility of torture in accordance with legislation, any relevant and applicable constitute persecution, unless there is § 208.30, and §§ 1003.42 or 1208.30 of information supporting that application, credible evidence that those laws or this title. any information regarding an alien who policies have been or would be applied * * * * * has filed such an application, and any to an applicant personally. ■ 6. Amend § 208.5 by revising the first relevant and applicable information (f) Nexus—(1) General. For purposes sentence of paragraph (a) to read as regarding an alien who has been the of adjudicating an application for follows: subject of a reasonable fear or credible asylum under section 208 of the Act or fear determination may be disclosed: an application or withholding of § 208.5 Special duties toward aliens in (i) As part of an investigation or custody of DHS. removal under section 241(b)(3) of the adjudication of the merits of that Act, the Secretary, in general, will not (a) General. When an alien in the application or of any other application favorably adjudicate the claims of aliens custody of DHS requests asylum or under the immigration laws, who claim persecution based on the withholding of removal, or expresses a (ii) As part of any state or federal following list of nonexhaustive fear of persecution or harm upon return criminal investigation, proceeding, or circumstances: to his or her country of origin or to prosecution; (i) Interpersonal animus or agents thereof, DHS shall make available (iii) Pursuant to any state or federal retribution; the appropriate application forms and mandatory reporting requirement; (ii) Interpersonal animus in which the shall provide the applicant with the (iv) To deter, prevent, or ameliorate alleged persecutor has not targeted, or information required by section the effects of child abuse; manifested an animus against, other 208(d)(4) of the Act, including in the (v) As part of any proceeding arising members of an alleged particular social case of an alien who is in custody with under the immigration laws, including group in addition to the member who a positive credible fear or reasonable proceedings arising under the Act; and has raised the claim at issue; fear determination under §§ 208.30 or (vi) As part of the Government’s (iii) Generalized disapproval of, 208.31, and except in the case of an defense of any legal action relating to disagreement with, or opposition to alien who is in custody pending a the alien’s immigration or custody criminal, terrorist, gang, guerilla, or credible fear determination under status including petitions for review other non-state organizations absent § 208.30 or a reasonable fear filed in accordance with 8 U.S.C. 1252. expressive behavior in furtherance of a determination pursuant to § 208.31. (2) If information may be disclosed discrete cause against such *** under paragraph (d)(1) of this section, organizations related to control of a state * * * * * the disclosure provisions in paragraphs or expressive behavior that is ■ 7. Amend § 208.6 by— (a), (b), and (c) of this section shall not antithetical to the state or a legal unit of ■ a. Revising paragraphs (a) and (b); and apply. the state; ■ b. Adding paragraphs (d), (e), and (f). (e) Nothing in this section shall be (iv) Resistance to recruitment or The revisions and additions read as construed as prohibiting the disclosure coercion by guerilla, criminal, gang, follows: of information contained in an terrorist or other non-state application for asylum, withholding of § 208.6 Disclosure to third parties. removal under section 241(b)(3)(B) of organizations; (a) Information contained in or (v) The targeting of the applicant for the Act, or protection under regulations pertaining to any asylum application, criminal activity for financial gain based issued pursuant to the Convention records pertaining to any credible fear on wealth or affluence or perceptions of Against Torture’s implementing determination conducted pursuant to wealth or affluence; legislation, information supporting that § 208.30, and records pertaining to any (vi) Criminal activity; application, information regarding an (vii) Perceived, past or present, gang reasonable fear determination alien who has filed such an application, affiliation; or, conducted pursuant to § 208.31, shall or information regarding an alien who (viii) Gender. not be disclosed without the written has been the subject of a reasonable fear (2) [Reserved] consent of the applicant, except as or credible fear determination: (g) Evidence based on stereotypes. For permitted by this section or at the (1) Among employees and officers of purposes of adjudicating an application discretion of the Secretary. the Department of Justice, the for asylum under section 208 of the Act (b) The confidentiality of other Department of Homeland Security, the or an application for withholding of records kept by DHS and the Executive Department of State, the Department of removal under section 241(b)(3) of the Office for Immigration Review that Health and Human Services, the Act, evidence promoting cultural indicate that a specific alien has applied Department of Labor, or a U.S. national stereotypes about an individual or a for asylum, received a credible fear or security agency having a need to country, including stereotypes based on reasonable fear interview, or received a examine the information for an official race, religion, nationality, or gender, credible fear or reasonable fear review purpose; or and offered to support the basis of an shall also be protected from disclosure, (2) Where a United States Government alleged fear of harm from the individual except as permitted in this section. DHS employee or contractor has a good faith or country shall not be admissible in will coordinate with the Department of and reasonable belief that disclosure is adjudicating that application. State to ensure that the confidentiality necessary to prevent the commission of ■ 5. Amend § 208.2 by adding paragraph of those records is maintained if they a crime, the furtherance of an ongoing (c)(1)(ix) to read as follows: are transmitted to Department of State crime, or to ameliorate the effects of a offices in other countries. crime. § 208.2 Jurisdiction. * * * * * ■ 8. Amend § 208.13 by: * * * * * (d)(1) Any information contained in ■ a. Revising paragraph (b)(3) (c) * * * an application for asylum, withholding introductory text;

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■ b. Revising paragraph (b)(3)(ii); (i) An alien’s unlawful entry or (1) The alien demonstrates that he or ■ c. Adding paragraphs (b)(3)(iii) and unlawful attempted entry into the she applied for protection from (iv), and (d). United States unless such entry or persecution or torture in at least one The revisions and additions read as attempted entry was made in immediate such country and received a final follows: flight from persecution in a contiguous judgment denying the alien protection § 208.13 Establishing asylum eligibility. country; in that country; (ii) The failure of an alien to apply for (2) The alien demonstrates that he or * * * * * protection from persecution or torture in she satisfies the definition of ‘‘victim of (b) * * * a severe form of trafficking in persons’’ (3) Reasonableness of internal at least one country outside the alien’s provided in 8 CFR 214.11; or relocation. For purposes of country of citizenship, nationality, or (3) All such countries were, at the determinations under paragraphs last lawful habitual residence through time of the transit, not parties to the (b)(1)(i), (ii), and (2) of this section, which the alien transited before entering 1951 United Nations Convention adjudicators should consider the totality the United States unless: relating to the Status of Refugees, the of the relevant circumstances regarding (A) The alien received a final 1967 Protocol, or the United Nations an applicant’s prospects for relocation, judgment denying the alien protection Convention against Torture and Other including the size of the country of in such country; Cruel, Inhuman or Degrading Treatment nationality or last habitual residence, (B) The alien demonstrates that he or or Punishment ; the geographic locus of the alleged she satisfies the definition of ‘‘victim of (C) Would otherwise be subject to persecution, the size, reach, or a severe form of trafficking in persons’’ § 208.13(c) but for the reversal, vacatur, numerosity of the alleged persecutor, provided in 8 CFR 214.11; or expungement, or modification of a and the applicant’s demonstrated ability (C) Such country or all such countries conviction or sentence unless the alien to relocate to the United States in order were, at the time of the transit, not was found not guilty; to apply for asylum. parties to the 1951 United Nations (D) Accrued more than one year of * * * * * Convention relating to the Status of Refugees, the 1967 Protocol, or the unlawful presence in the United States (ii) In cases in which the persecutor prior to filing an application for asylum; is a government or is government- United Nations Convention Against Torture and Other Cruel, Inhuman or (E) At the time the asylum application sponsored, it shall be presumed that is filed with DHS has: internal relocation would not be Degrading Treatment or Punishment; and (1) Failed to timely file (or timely file reasonable, unless DHS establishes by a a request for an extension of time to file) (iii) An alien’s use of fraudulent preponderance of the evidence that, any required federal, state, or local documents to enter the United States, under all the circumstances, it would be income tax returns; unless the alien arrived in the United reasonable for the applicant to relocate. (2) Failed to satisfy any outstanding States by air, sea, or land directly from (iii) Regardless of whether an federal, state, or local tax obligations; or applicant has established persecution in the applicant’s home country without (3) Has income that would result in the past, in cases in which the transiting through any other country. tax liability under section 1 of the persecutor is not the government or a (2)(i) The Secretary, except as Internal Revenue Code of 1986 and that government-sponsored actor, or provided in paragraph (d)(2)(ii) of this was not reported to the Internal otherwise is a private actor, there shall section, will not favorably exercise Revenue Service; be a presumption that internal discretion under section 208 of the Act (F) Has had two or more prior asylum relocation would be reasonable unless for an alien who: applications denied for any reason; the applicant establishes, by a (A) Immediately prior to his arrival in (G) Has withdrawn a prior asylum preponderance of the evidence, that it the United States or en route to the application with prejudice or been would be unreasonable to relocate. United States from the alien’s country of found to have abandoned a prior asylum (iv) For purposes of determinations citizenship, nationality, or last lawful application; under paragraphs (b)(3)(ii) and (b)(3)(iii) habitual residence, spent more than 14 (H) Failed to attend an interview of this section, persecutors who are days in any one country unless: regarding his asylum application with private actors—including persecutors (1) The alien demonstrates that he or DHS, unless the alien shows by a who are gang members, rogue officials, she applied for protection from preponderance of the evidence that: family members who are not themselves persecution or torture in such country (1) Exceptional circumstances government officials, or neighbors who and the alien received a final judgment prevented the alien from attending the are not themselves government denying the alien protection in such interview; or officials—shall not be considered to be country; (2) The interview notice was not persecutors who are the government or (2) The alien demonstrates that he or mailed to the last address provided by government-sponsored absent evidence she satisfies the definition of ‘‘victim of the alien or his or her representative and that the government sponsored the a severe form of trafficking in persons’’ neither the alien nor the alien’s persecution. provided in 8 CFR 214.11; or representative received notice of the * * * * * (3) Such country was, at the time of interview; or (d) Discretion. Factors that fall short the transit, not a party to the 1951 (I) Was subject to a final order of of grounds of mandatory denial of an United Nations Convention relating to removal, deportation, or exclusion and asylum application may constitute the Status of Refugees, the 1967 did not file a motion to reopen to seek discretionary considerations. Protocol, or the United Nations asylum based on changed country (1) Significant adverse discretionary Convention against Torture and Other conditions within one year of those factors. The following are significant Cruel, Inhuman or Degrading Treatment changes in country conditions. adverse discretionary factors that a or Punishment; (ii) Where one or more of the adverse decision-maker shall consider, if (B) Transits through more than one discretionary factors set forth in applicable, in determining whether an country between his country of paragraph (d)(2)(i) of this section are alien merits a grant of asylum in the citizenship, nationality, or last habitual present, the Secretary, in extraordinary exercise of discretion: residence and the United States unless: circumstances, such as those involving

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national security or foreign policy that he or she could not have derived sponsored absent evidence that the considerations, or cases in which an any permanent legal immigration status government sponsored the persecution. alien, by clear and convincing evidence, or any potentially indefinitely * * * * * demonstrates that the denial of the renewable temporary legal immigration ■ 11. Amend § 208.18 by revising application for asylum would result in status (including asylee, refugee, or paragraphs (a)(1) and (7) to read as exceptional and extremely unusual similar status but excluding status such follows: hardship to the alien, may favorably as of a tourist) from the alien’s parent. exercise discretion under section 208 of ■ 10. Amend § 208.16 by: § 208.18 Implementation of the Convention Against Torture. the Act, notwithstanding the ■ a. Revising paragraph (b)(3) (a) * * * applicability of paragraph (d)(2)(i) of introductory text; (1) Torture is defined as any act by this section. Depending on the gravity of ■ b. Revising paragraph (b)(3)(ii); the circumstances underlying the which severe pain or suffering, whether ■ c. Adding paragraphs (b)(3)(iii) and physical or mental, is intentionally application of paragraph (d)(2)(i) of this (iv). section, a showing of extraordinary inflicted on a person for such purposes The revisions and additions read as as obtaining from him or her or a third circumstances might still be insufficient follows: to warrant a favorable exercise of person information or a confession, punishing him or her for an act he or discretion under section 208 of the Act. § 208.16 Withholding of removal under ■ 9. Revise § 208.15 to read as follows: section 241(b)(3)(B) of the Act and she or a third person has committed or withholding of removal under the is suspected of having committed, or § 208.15 Definition of ‘‘firm resettlement.’’ Convention Against Torture. intimidating or coercing him or her or (a) An alien is considered to be firmly * * * * * a third person, or for any reason based resettled if: (b)(3) Reasonableness of internal on discrimination of any kind, when (1) The alien either resided or could relocation. For purposes of such pain or suffering is inflicted by or have resided in any permanent legal determinations under paragraphs (b)(1) at the instigation of or with the consent immigration status or any non- and (2) of this section, adjudicators or acquiescence of a public official permanent, potentially indefinitely should consider the totality of the acting in an official capacity or other renewable legal immigration status relevant circumstances regarding an person acting in an official capacity. (including asylee, refugee, or similar applicant’s prospects for relocation, Pain or suffering inflicted by a public status but excluding status such as of a including the size of the country of official who is not acting under color of law (‘‘rogue official’’) shall not tourist) in a country through which the nationality or last habitual residence, constitute pain or suffering inflicted by alien transited prior to arriving in or the geographic locus of the alleged or at the instigation of or with the entering the United States, regardless of persecution, the size, reach, or consent or acquiescence of a public whether the alien applied for or was numerosity of the alleged persecutor, official acting in an official capacity or offered such status; and the applicant’s demonstrated ability other person acting in an official (2) The alien physically resided to relocate to the United States in order capacity, although a different public voluntarily, and without continuing to to apply for withholding of removal. suffer persecution or torture, in any one official acting in an official capacity or country for one year or more after * * * * * other person acting in an official departing his country of nationality or (ii) In cases in which the persecutor capacity could instigate, consent to, or last habitual residence and prior to is a government or is government- acquiesce in the pain or suffering arrival in or entry into the United States; sponsored, it shall be presumed that inflicted by the rogue official. or internal relocation would not be * * * * * (3)(i) The alien is a citizen of a reasonable, unless DHS establishes by a (7) Acquiescence of a public official country other than the one where the preponderance of the evidence that, requires that the public official, prior to alien alleges a fear of persecution and under the totality of the circumstances, the activity constituting torture, have the alien was present in that country it would be reasonable for the applicant awareness of such activity and prior to arriving in the United States, or to relocate. thereafter breach his or her legal (ii) The alien was a citizen of a (iii) Regardless of whether an responsibility to intervene to prevent country other than the one where the applicant has established persecution in such activity. Such awareness requires a alien alleges a fear of persecution, the the past, in cases in which the finding of either actual knowledge or alien was present in that country prior persecutor is not the government or a willful blindness. Willful blindness to arriving in the United States, and the government-sponsored actor, or means that the public official acting in alien renounced that citizenship after otherwise is a private actor, there shall an official capacity or other person arriving in the United States. be a presumption that internal acting in an official capacity was aware (b) The provisions of 8 CFR 1240.8(d) relocation would be reasonable unless of a high probability of activity shall apply when the evidence of record the applicant establishes, by a constituting torture and deliberately indicates that the firm resettlement bar preponderance of the evidence, that it avoided learning the truth; it is not may apply. In such cases, the alien shall would be unreasonable to relocate. enough that such public official acting bear the burden of proving the bar does (iv) For purposes of determinations in an official capacity or other person not apply. Either DHS or the under paragraphs (b)(3)(ii) and (iii) of acting in an official capacity was immigration judge may raise the issue of this section, persecutors who are private mistaken, recklessly disregarded the the application of the firm resettlement actors, including but not limited to truth, or negligently failed to inquire. In bar based on the evidence of record. The persecutors who are gang members, order for a public official to breach his firm resettlement of an alien’s parent(s) rogue officials, or family members who or her legal responsibility to intervene shall be imputed to the alien if the are not themselves government officials to prevent activity constituting torture, resettlement occurred before the alien or neighbors who are not themselves the official must have been charged with turned 18 and the alien resided with the government officials, shall not be preventing the activity as part of his or alien’s parents at the time of the firm considered to be persecutors who are her duties and have failed to intervene. resettlement unless the alien establishes the government or government- No person will be deemed to have

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breached a legal responsibility to opportunity to account for any issues sections 235(a)(2) and 235(b)(1) of the intervene if such person is unable to with his or her claim prior to the entry Act. Pursuant to section 235(b)(1)(B) of intervene, or if the person intervenes of a frivolousness finding. the Act, DHS has exclusive jurisdiction but is unable to prevent the activity that (e) An asylum application may be to make the determinations described in constitutes torture. found frivolous even if it was untimely this subpart B. Except as otherwise * * * * * filed. provided in this subpart B, paragraphs ■ 12. Revise § 208.20 to read as follows: (f) A withdrawn asylum application (b) through (g) of this section are the may also be found frivolous unless: exclusive procedures applicable to § 208.20 Determining if an asylum (1) The alien wholly disclaims the stowaways and applicants for admission application is frivolous. application and withdraws it with who are found inadmissible pursuant to (a) For applications filed on or after prejudice; section 212(a)(6)(C) or 212(a)(7) of the April 1, 1997, an applicant is subject to (2) The alien is eligible for and agrees Act and who receive fear interviews, the provisions of section 208(d)(6) of the to accept voluntary departure for a determinations, and reviews under Act only if the alien received the notice period of no more than 30 days section 235(b)(1)(B) of the Act. Prior to required by section 208(d)(4)(A) of the pursuant to section 240B(a) of the Act; January 1, 2030, an alien physically Act and a final order by an immigration (3) The alien withdraws any and all present in or arriving in the judge or the Board of Immigration other applications for relief or Commonwealth of the Northern Mariana Appeals specifically finds that the alien protection with prejudice; and Islands is ineligible to apply for asylum knowingly filed a frivolous asylum (4) The alien waives his right to and may only establish eligibility for application. An alien knowingly files a appeal and any rights to file, for any withholding of removal pursuant to frivolous asylum application if: reason, a motion to reopen or section 241(b)(3) of the Act or (1) The application is described in reconsider. withholding or deferral of removal paragraph (c) of this section; and (g) For purposes of this section, a under the regulations issued pursuant to (2) The alien filed the application finding that an alien knowingly filed a the Convention Against Torture’s with either actual knowledge, or willful frivolous asylum application shall not implementing legislation. blindness, of the fact that the preclude the alien from seeking (b) Process and authority. If an alien application was described in paragraph withholding of removal under section subject to section 235(a)(2) or 235(b)(1) (c) in this section. 241(b)(3) of the Act or protection under of the Act indicates an intention to (b) For applications filed on or after the regulations issued pursuant to the apply for asylum, or expresses a fear of [EFFECTIVE DATE OF FINAL RULE], Convention Against Torture’s persecution or torture, or a fear of return an asylum officer may determine that implementing legislation. to his or her country, the inspecting the applicant knowingly filed a ■ 13. Add § 208.25 to read as follows: officer shall not proceed further with frivolous asylum application and may removal of the alien until the alien has refer the applicant to an immigration § 208.25 Severability. been referred for an interview by an judge on that basis, so long as the The provisions of this part are asylum officer in accordance with this applicant has received the notice separate and severable from one section. An asylum officer shall then required by section 208(d)(4)(A) of the another. In the event that any provision screen the alien for a credible fear of Act. Such finding will be made only if in this part is stayed, enjoined, not persecution, and as necessary, a the asylum officer is satisfied that the implemented, or otherwise held invalid, reasonable possibility of persecution applicant has had sufficient opportunity the remaining provisions shall and reasonable possibility of torture. An to account for any discrepancies or nevertheless be implemented as an asylum officer, as defined in section implausible aspects of the claim. For independent rule and continue in effect. 235(b)(1)(E) of the Act, has the any application referred to an ■ 14. Amend § 208.30 by: authorities described in § 208.9(c) and immigration judge, an asylum officer’s ■ a. Revising the section heading; must conduct an evaluation and make a determination that an application is ■ b. Revising paragraphs (a), (b), (c), and determination consistent with this frivolous will not render an applicant (d); section. permanently ineligible for immigration ■ c. Revising (e) introductory text, (e)(1) (c) Treatment of dependents. A benefits unless an immigration judge or through (5), (e)(6) introductory text, spouse or child of an alien may be the Board makes a finding of (e)(6)(ii), (e)(6)(iii) introductory text, included in that alien’s fear evaluation frivolousness as described in paragraph (e)(6)(iv), the first sentence of the and determination, if such spouse or 1208.20(c). introductory text of paragraph (e)(7), child: (c) For purposes of this section, (e)(7)(ii); and (1) Arrived in the United States beginning on [effective date of final ■ d. Revising paragraphs (f) and (g). concurrently with the principal alien; rule], an asylum application is frivolous The revisions read as follows: and if it: (2) Desires to be included in the (1) Contains a fabricated essential § 208.30 Credible fear of persecution, principal alien’s determination. element; reasonable possibility of persecution, and However, any alien may have his or her (2) Is premised upon false or reasonable possibility of torture evaluation and determination made determinations involving stowaways and separately, if he or she expresses such fabricated evidence unless the applicants for admission who are found application would have been granted inadmissible pursuant to section a desire. without the false or fabricated evidence; 212(a)(6)(C) or 212(a)(7) of the Act, whose (d) Interview. The asylum officer will (3) Is filed without regard to the entry is limited or suspended under section conduct the interview in a merits of the claim; or 212(f) or 215(a)(1) of the Act, or who failed nonadversarial manner, separate and (4) Is clearly foreclosed by applicable to apply for protection from persecution in apart from the general public. The law. a third country where potential relief is purpose of the interview shall be to (d) If the alien has been provided the available while en route to the United elicit all relevant and useful information warning required by section States. bearing on whether the alien can 208(d)(4)(A) of the Act, he or she need (a) Jurisdiction. The provisions of this establish a credible fear of persecution, not be given any additional or further subpart B apply to aliens subject to reasonable possibility of persecution, or

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reasonable possibility of torture. The possibility of succeeding. When making the material facts as stated by the alien, asylum officer shall conduct the such a determination, the asylum officer any additional facts relied on by the interview as follows: shall take into account: officer, and the officer’s determination (1) If the officer conducting the (i) The credibility of the statements of whether, in light of such facts, the interview determines that the alien is made by the alien in support of the alien has established a credible fear of unable to participate effectively in the alien’s claim; persecution, reasonable possibility of interview because of illness, fatigue, or (ii) Such other facts as are known to persecution, or reasonable possibility of other impediments, the officer may the officer, including whether the alien torture. An asylum officer’s reschedule the interview. could avoid any future harm by determination will not become final (2) At the time of the interview, the relocating to another part of his or her until reviewed by a supervisory asylum asylum officer shall verify that the alien country, if under all the circumstances officer. has received in writing the relevant it would be reasonable to expect the (5)(i)(A) Except as provided in information regarding the fear alien to do so; and paragraphs (e)(5)(ii) through(iii), (e)(6), determination process. The officer shall (iii) The applicability of any bars to or (e)(7) of this section, if an alien also determine that the alien has an being able to apply for asylum or to would be able to establish a credible understanding of the fear determination eligibility for asylum set forth at section fear of persecution but for the fact that process. 208(a)(2)(B)–(C) and (b)(2) of the Act, the alien is subject to one or more of the (3) The alien may be required to including any bars established by mandatory bars to applying for asylum register his or her identity. regulation under section 208(b)(2)(C) of or being eligible for asylum contained in (4) The alien may consult with a the Act. section 208(a)(2)(B)–(D) and (b)(2) of the person or persons of the alien’s (2) An alien establishes a reasonable Act, including any bars established by choosing prior to the interview or any possibility of persecution if there is a regulation under section 208(b)(2)(C) of review thereof, and may present other reasonable possibility that the alien the Act, then the asylum officer will evidence, if available. Such consultation would be persecuted on account of his enter a negative credible fear of shall be at no expense to the or her race, religion, nationality, persecution determination with respect Government and shall not unreasonably membership in a particular social group, to the alien’s eligibility for asylum. delay the process. Any person or or political opinion in the country of (B) If an alien described in paragraph persons with whom the alien chooses to removal. When making such (e)(5)(i)(A) of this section is able to consult may be present at the interview determination, the officer will take into establish either a reasonable possibility and may be permitted, in the discretion account: of persecution (including by of the asylum officer, to present a (i) The credibility of the statements establishing that he or she is not subject statement at the end of the interview. made by the alien in support of the to one or more of the mandatory bars to The asylum officer, in his or her alien’s claim; eligibility for withholding of removal discretion, may place reasonable limits (ii) Such other facts as are known to contained in section 241(b)(3)(B) of the on the number of persons who may be the officer, including whether the alien Act) or a reasonable possibility of present at the interview and on the could avoid a future threat to his or her torture, then the asylum officer will length of the statement. life or freedom by relocating to another enter a positive reasonable possibility of (5) If the alien is unable to proceed party of the proposed country of persecution or torture determination, as effectively in English, and if the asylum removal and, under all circumstances, it applicable. The Department of officer is unable to proceed competently would be reasonable to expect the Homeland Security shall place the alien in a language the alien speaks and applicant to do so; and in asylum-and-withholding-only understands, the asylum officer shall (iii) The applicability of any bars at proceedings under § 208.2(c)(1) for full arrange for the assistance of an section 241(b)(3)(B) of the Act. consideration of the alien’s claim for interpreter in conducting the interview. (3) An alien establishes a reasonable withholding of removal under section The interpreter must be at least 18 years possibility of torture if there is a 241(b)(3) of the Act or withholding or of age and may not be the alien’s reasonable possibility that the alien deferral of removal under the attorney or representative of record, a would be tortured in the country of regulations issued pursuant to the witness testifying on the alien’s behalf, removal, consistent with the criteria in implementing legislation for the a representative or employee of the §§ 208.16(c), 208.17, and 208.18. The Convention Against Torture. alien’s country of nationality, or, if the alien must demonstrate a reasonable (C) If an alien described in paragraph alien is stateless, the alien’s country of possibility that he or she will suffer (e)(5)(i)(A) of this section fails to last habitual residence. severe pain or suffering in the country establish either a reasonable possibility (6) The asylum officer shall create a of removal, and that the feared harm of persecution (including by failing to summary of the material facts as stated would comport with the other establish that he or she is not subject to by the alien. At the conclusion of the requirements of § 208.18(a)(1) through one or more of the mandatory bars to interview, the officer shall review the (8). When making such a determination, eligibility for withholding of removal summary with the alien and provide the the asylum officer shall take into contained in section 241(b)(3)(B) of the alien with an opportunity to correct any account: Act) or a reasonable possibility of errors therein. (i) The credibility of the statements torture, the asylum officer will provide (e) Procedures for determining made by alien in support of the alien’s the alien with a written notice of credible fear of persecution, reasonable claim, and decision, which will be subject to possibility of persecution, and (ii) Such other facts as are known to immigration judge review consistent reasonable possibility of torture. the officer, including whether the alien with paragraph (g) of this section, (1) An alien establishes a credible fear could relocate to a part of the country except that the immigration judge will of persecution if there is a significant of removal where he or she is not likely review the fear findings under the possibility the alien can establish to be tortured. reasonable possibility standard instead eligibility for asylum under section 208 (4) In all cases, the asylum officer will of the credible fear of persecution of the Act. ‘‘Significant possibility’’ create a written record of his or her standard described in paragraph (g) of means a substantial and realistic determination, including a summary of this section and in 8 CFR 1208.30(g).

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(ii) If the alien is found to be an alien reasonable possibility of torture, the persecution, or a reasonable possibility described in 8 CFR 208.13(c)(3), then asylum officer shall conduct a threshold of torture, the asylum officer shall the asylum officer shall enter a negative screening interview to determine conduct a threshold screening interview credible fear determination with respect whether such an alien is ineligible to to determine whether the alien is to the alien’s application for asylum. apply for asylum pursuant to section ineligible to apply for asylum in the The Department shall nonetheless place 208(a)(2)(A) of the Act and subject to United States and is subject to removal the alien in asylum-and-withholding- removal to Canada by operation of the to a country (‘‘receiving country’’) that only proceedings under § 208.2(c)(1) for Agreement Between the Government of is a signatory to the applicable full consideration of the alien’s claim the United States and the Government agreement authorized by section for withholding of removal under of Canada For Cooperation in the 208(a)(2)(A) of the Act, other than the section 241(b)(3) of the Act, or for Examination of Refugee Status Claims U.S.-Canada Agreement effectuated in withholding or deferral of removal from Nationals of Third Countries 2004. * * * under the regulations issued pursuant to (‘‘Agreement’’). In conducting this * * * * * the implementing legislation for the threshold screening interview, the (ii) If the alien establishes by a Convention Against Torture, if the alien asylum officer shall apply all relevant preponderance of the evidence that he establishes, respectively, a reasonable interview procedures outlined in or she qualifies for an exception under possibility of persecution or torture. paragraph (d) of this section, provided, the terms of the applicable agreement, However, if an alien fails to establish, however, that paragraph (d)(2) of this or would more likely than not be during the interview with the asylum section shall not apply to aliens persecuted on account of his or her race, officer, a reasonable possibility of either described in this paragraph (e)(6). The religion, nationality, membership in a persecution or torture, the asylum asylum officer shall advise the alien of particular social group, or tortured, in officer will provide the alien with a the Agreement’s exceptions and the receiving country, the asylum officer written notice of decision, which will be question the alien as to applicability of shall make a written notation to that subject to immigration judge review any of these exceptions to the alien’s effect, and may then proceed to consistent with paragraph (g) of this case. determine whether any other agreement section, except that the immigration * * * * * is applicable to the alien under the judge will review the fear of persecution (ii) If the alien establishes by a procedures set forth in this paragraph findings under the reasonable preponderance of the evidence that he (e)(7). If the alien establishes by a possibility standard instead of the or she qualifies for an exception under preponderance of the evidence that he credible fear standard described in the terms of the Agreement, the asylum or she qualifies for an exception under paragraph (g) and in 8 CFR 1208.30(g). officer shall make a written notation of the terms of each of the applicable (iii) If the alien is found to be an alien the basis of the exception, and then agreements, or would more likely than described in § 208.13(c)(4), then the proceed immediately to a determination asylum officer shall enter a negative not be persecuted on account of his or credible fear determination with respect concerning whether the alien has a her race, religion, nationality, to the alien’s application for asylum. credible fear of persecution, reasonable membership in a particular social group, The Department shall nonetheless place possibility of persecution, or reasonable or tortured, in each of the prospective the alien in asylum-and-withholding- possibility of torture under paragraph receiving countries, the asylum officer only proceedings under § 208.2(c)(1) for (d) of this section. shall make a written notation to that full consideration of the alien’s claim (iii) An alien qualifies for an effect, and then proceed immediately to for withholding of removal under exception to the Agreement if the alien a determination concerning whether the section 241(b)(3) of the Act or is not being removed from Canada in alien has a credible fear of persecution, withholding of deferral of removal transit through the United States and: reasonable possibility of persecution, or under the regulations issued pursuant to * * * * * a reasonable possibility of torture, under the implementing legislation for the (iv) As used in paragraphs paragraph (d) of this section. Convention Against Torture if the alien (e)(6)(iii)(B), (C) and (D) of this section * * * * * establishes, respectively, a reasonable only, ‘‘legal guardian’’ means a person (f) Procedures for a positive fear possibility of persecution or torture. currently vested with legal custody of determination. If, pursuant to paragraph However, if an alien fails to establish, such an alien or vested with legal (e) of this section, an alien stowaway or during the interview with the asylum authority to act on the alien’s behalf, an alien subject to expedited removal officer, a reasonable possibility of either provided that such an alien is both establishes either a credible fear of persecution or torture, the asylum unmarried and less than 18 years of age, persecution, reasonable possibility of officer will provide the alien with a and provided further that any dispute persecution, or a reasonable possibility written notice of decision, which will be with respect to whether an individual is of torture: subject to immigration judge review a legal guardian will be resolved on the (1) DHS shall issue a Notice of consistent with paragraph (g) of this basis of U.S. law. Referral to Immigration Judge for section, except that the immigration (7) When an immigration officer has asylum-and-withholding-only judge will review the fear of persecution made an initial determination that an proceedings under § 208.2(c)(1). findings under the reasonable alien, other than an alien described in (2) Parole of the alien may be possibility standard instead of the paragraph (e)(6) of this section and considered only in accordance with credible fear standard described in regardless of whether the alien is section 212(d)(5) of the Act and 8 CFR paragraph (g) and in 8 CFR 1208.30(g). arriving at a port of entry, appears to be 212.5 of this chapter. (6) Prior to any determination subject to the terms of an agreement (g) Procedures for a negative fear concerning whether an alien arriving in authorized by section 208(a)(2)(A) of the determination. (1) If, pursuant to the United States at a U.S.-Canada land Act, and seeks the alien’s removal paragraphs (e) and (f) of this section, an border port-of-entry or in transit through consistent with that provision, prior to alien stowaway or an alien subject to the U.S. during removal by Canada has any determination concerning whether expedited removal does not establish a a credible fear of persecution, the alien has a credible fear of credible fear of persecution, reasonable reasonable possibility of persecution, or persecution, reasonable possibility of possibility of persecution, or reasonable

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possibility of torture, DHS shall provide Negative Reasonable Fear Finding and 1225, 1226, 1228, 1365a note, 1365b, 1379, the alien with a written notice of Request for Review by Immigration 1731–32; Title VII of Public Law 110–229; 8 decision and inquire whether the alien Judge, on which the alien must indicate U.S.C. 1185 note (section 7209 of Public Law wishes to have an immigration judge whether he or she desires such review. 108–458); Public Law 112–54. review the negative determination, in If the alien refuses to make an ■ 17. Amend § 235.6 by accordance with section indication, DHS shall consider such a ■ a. Revising paragraphs (a)(1)(ii), 235(b)(1)(B)(iii)(III) of the Act and this response as a decision to decline (a)(2)(i), and (iii); and § 208.30. The alien must indicate review. ■ b. Adding paragraph (c). whether he or she desires such review (g) Review by immigration judge. The The revisions and addition read as on a Record of Negative Fear Finding asylum officer’s negative decision follows: and Request for Review by Immigration regarding reasonable fear shall be § 235.6 Referral to immigration judge. Judge. If the alien refuses to make an subject to review by an immigration indication, DHS shall consider such a judge upon the alien’s request. If the (a) * * * (1) * * * response as a decision to decline alien requests such review, the asylum (ii) If an immigration officer verifies review. officer shall serve him or her with a that an alien subject to expedited (i) If the alien requests such review, Notice of Referral to Immigration Judge. removal under section 235(b)(1) of the DHS shall arrange for detention of the The record of determination, including Act has been admitted as a lawful alien and serve him or her with a Notice copies of the Notice of Referral to permanent resident or refugee, or of Referral to Immigration Judge, for Immigration Judge, the asylum officer’s granted asylum, or, upon review review of the negative fear notes, the summary of the material facts, pursuant to § 235.3(b)(5)(iv), an determination in accordance with and other materials upon which the immigration judge determines that the paragraph (g)(2) of this section. determination was based shall be alien was once so admitted or granted (ii) If the alien is not a stowaway and provided to the immigration judge with asylum, provided that such status has does not request a review by an the negative determination. In the not been terminated by final immigration judge, DHS shall order the absence of exceptional circumstances, administrative action, and the Service alien removed with a Notice and Order such review shall be conducted by the initiates removal proceedings against of Expedited Removal, after review by a immigration judge within 10 days of the the alien under section 240 of the Act. supervisory officer. filing of the Notice of Referral to (iii) If the alien is a stowaway and the Immigration Judge with the immigration * * * * * alien does not request a review by an court. Upon review of the asylum (2) * * * immigration judge, DHS shall complete officer’s negative reasonable fear (i) If an asylum officer determines that removal proceedings in accordance with determination: the alien does not have a credible fear section 235(a)(2) of the Act. (1) If the immigration judge concurs of persecution, reasonable possibility of (2) Review by immigration judge of a with the asylum officer’s determination persecution, or reasonable possibility of negative fear determination. that the alien does not have a reasonable torture, and the alien requests a review (i) Immigration judges shall review fear of persecution or torture, the case of that determination by an immigration negative fear determinations as shall be returned to DHS for removal of judge; or provided in 8 CFR 1208.30(g). the alien. No appeal shall lie from the * * * * * (ii) DHS shall provide the record of immigration judge’s decision. (iii) If an immigration officer refers an any negative fear determinations being (2) If the immigration judge finds that applicant in accordance with the reviewed, including copies of the Notice the alien has a reasonable fear of provisions of 8 CFR 208.30 or 8 CFR of Referral to Immigration Judge, the persecution or torture, the alien may 208.31. asylum officer’s notes, the summary of submit an Application for Asylum and * * * * * the material facts, and other materials Withholding of Removal. (c) The provisions of this part are upon which the determination was (i) The immigration judge shall separate and severable from one based, to the immigration judge with the consider only the alien’s application for another. In the event that any provision negative fear determination. withholding of removal under 8 CFR in this part is stayed, enjoined, not ■ 15. Amend § 208.31 by revising 1208.16 and shall determine whether implemented, or otherwise held invalid, paragraph (f), the introductory text of the alien’s removal to the country of the remaining provisions shall paragraph (g), and paragraphs (g)(1) and removal must be withheld or deferred. nevertheless be implemented as an (2) to read as follows: (ii) Appeal of the immigration judge’s independent rule and continue in effect. decision whether removal must be * * * * * § 208.31 Reasonable fear of persecution or withheld or deferred lies with the Board torture determinations involving aliens of Immigration Appeals. If the alien or Department of Justice ordered removed under section 238(b) of DHS appeals the immigration judge’s the Act and aliens whose removal is Accordingly, for the reasons set forth reinstated under section 241(a)(5) of the decision, the Board shall review only in the preamble, the Attorney General Act. the immigration judge’s decision proposed to amend 8 CFR parts 1003, regarding the alien’s eligibility for * * * * * 1208 and 1235 as follows: withholding or deferral of removal (f) Removal of aliens with no under 8 CFR 1208.16. PART 1003—EXECUTIVE OFFICE FOR reasonable fear of persecution or IMMIGRATION REVIEW torture. If the asylum officer determines PART 235—INSPECTION OF PERSONS that the alien has not established a APPLYING FOR ADMISSION ■ 18. The authority citation for part reasonable fear of persecution or torture, 1003 continues to read as follows: ■ 16. The authority citation for part 235 the asylum officer shall inform the alien Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 in writing of the decision and shall continues to read as follows: U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, inquire whether the alien wishes to Authority: 8 U.S.C. 1101 and note, 1103, 1226, 1229, 1229a, 1229b, 1229c, 1231, have an immigration judge review the 1183, 1185 (pursuant to E.O. 13323, 69 FR 1254a, 1255, 1324d, 1330, 1361, 1362; 28 negative decision, using the Record of 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No.

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2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002; is a reasonable possibility, taking into appeals having jurisdiction over the section 203 of Public Law 105–100, 111 Stat. account the credibility of the statements immigration court where the Request for 2196–200; sections 1506 and 1510 of Public made by the alien in support of the Review is filed, and the Supreme Court. Law 106–386, 114 Stat. 1527–29, 1531–32; alien’s claim, whether the alien is (2) No appeal shall lie from a review section 1505 of Public Law 106–554, 114 subject to any mandatory bars to Stat. 2763A–326 to –328. of a negative fear determination made eligibility for withholding of removal by an Immigration Judge, but the ■ 19. Amend § 1003.1 by revising under section 241(b)(3)(B) of the Act, paragraph (b)(9) to read as follows: Attorney General, in the Attorney and such other facts as are known to the General’s sole and unreviewable immigration judge, that the alien would § 1003.1 Organization, jurisdiction, and discretion, may direct that the be persecuted on account of his or her powers of the Board of Immigration Immigration Judge refer a case for the race, religion, nationality, membership Appeals. Attorney General’s review following the in a particular social group, or political * * * * * Immigration Judge’s review of a negative opinion in the country of removal, (b) * * * consistent with the criteria in 8 CFR fear determination. (9) Decisions of Immigration Judges in 1208.16(b). The immigration judge shall (3) In any case the Attorney General asylum proceedings pursuant to also make a de novo determination as to decides, the Attorney General’s decision § 1208.2(b) and (c) of this chapter. whether there is a reasonable shall be stated in writing and shall be * * * * * possibility, taking into account the transmitted to the Board for transmittal ■ 20. Amend § 1003.42 by: credibility of the statements made by and service as provided in § 1003.1(f). ■ a. Revising the section heading; the alien in support of the alien’s claim Such decision by the Attorney General ■ b. Revising paragraphs (a), (b), (d) and such other facts as are known to the may be designated as precedent as through (g), and (h)(1), and the third immigration judge, that the alien would provided in § 1003.1(g). sentence of pargraph (h)(3); and be tortured in the country of removal, (g) Custody. An immigration judge ■ c. Adding paragraph (i). consistent with the criteria in 8 CFR shall have no authority to review an The revisions and addition read as 1208.16(c), 8 CFR 1208.17, and 8 CFR follows: alien’s custody status in the course of a 1208.18. review of a negative fear determination § 1003.42 Review of credible fear of (2) If the alien is determined to be an made by DHS. alien described in 8 CFR 208.13(c)(3) or persecution, reasonable possibility of (h) * * * persecution, and reasonable possibility of 8 CFR 1208.13(c)(3) and is determined torture determinations. to lack a reasonable possibility of (1) Arriving alien. An immigration (a) Referral. Jurisdiction for an persecution or torture under 8 CFR judge has no jurisdiction to review a immigration judge to review a negative 208.30(e)(5)(ii), the Immigration Judge determination by an asylum officer that fear determination by an asylum officer shall first review de novo the an arriving alien is not eligible to apply pursuant to section 235(b)(1)(B) of the determination that the alien is described for asylum pursuant to the 2002 U.S.- Act shall commence with the filing by in 8 CFR 208.13(c)(3) or 8 CFR Canada Agreement formed under DHS of the Notice of Referral to 1208.13(c)(3) prior to any further review section 208(a)(2)(A) of the Act and Immigration Judge. DHS shall also file of the asylum officer’s negative fear should be returned to Canada to pursue determination. with the notice of referral a copy of the his or her claims for asylum or other (3) If the alien is determined to be an written record of determination as protection under the laws of Canada. alien described in 8 CFR 208.13(c)(4) or defined in section 235(b)(1)(B)(iii)(II) of See 8 CFR 208.30(e)(6). However, in any 8 CFR 1208.13(c)(4) and is determined case where an asylum officer has found the Act, including a copy of the alien’s to lack a reasonable possibility of written request for review, if any. that an arriving alien qualifies for an persecution or torture under 8 CFR exception to that Agreement, an (b) Record of proceeding. The 208.30(e)(5)(iii), the immigration judge Immigration Court shall create a Record immigration judge does have shall first review de novo the jurisdiction to review a negative fear of Proceeding for a review of a negative determination that the alien is described fear determination. This record shall not finding made thereafter by the asylum in 8 CFR 208.13(c)(4) or 8 CFR officer as provided in this section. be merged with any later proceeding 1208.13(c)(4) prior to any further review involving the same alien. of the asylum officer’s negative fear * * * * * * * * * * determination. (3) * * * However, if the asylum (d) Standard of review. (1) The (e) Timing. The immigration judge officer has determined that the alien immigration judge shall make a de novo shall conclude the review to the may not or should not be removed to a determination as to whether there is a maximum extent practicable within 24 third country under section 208(a)(2)(A) significant possibility, taking into hours, but in no case later than 7 days of the Act and subsequently makes a account the credibility of the statements after the date the supervisory asylum negative fear determination, an made by the alien in support of the officer has approved the asylum officer’s immigration judge has jurisdiction to alien’s claim, whether the alien is negative credible fear determination review the negative fear finding as subject to any mandatory bars to issued on the Record of Negative provided in this section. applying for asylum or being eligible for Credible Fear Finding and Request for * * * * * asylum under section 208(a)(2)(B)–(D) Review. and (b)(2) of the Act, including any bars (f) Decision. (1) The decision of the (i) The provisions of this part are established by regulation under section immigration judge shall be rendered in separate and severable from one 208(b)(2)(C) of the Act, and such other accordance with the provisions of 8 CFR another. In the event that any provision facts as are known to the immigration 1208.30(g)(2). In reviewing the negative in this part is stayed, enjoined, not judge, that the alien could establish his fear determination by DHS, the implemented, or otherwise held invalid, or her ability to apply for or be granted immigration judge shall apply relevant the remaining provisions shall asylum under section 208 of the Act. precedent issued by the Board of nevertheless be implemented as an The immigration judge shall make a de Immigration Appeals, the Attorney independent rule and continue in effect. novo determination as to whether there General, the federal circuit court of * * * * *

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PART 1208—PROCEDURES FOR define, or provide a basis for defining, harm that arises out of civil, criminal, or ASYLUM AND WITHHOLDING OF a formulation of a particular social military strife in a country, nor does it REMOVAL group before an immigration judge shall encompass all treatment that the United waive any such claim for all purposes States regards as unfair, offensive, ■ 21. The authority citation for part under the Act, including on appeal, and unjust, or even unlawful or 1208 continues to read as follows: any waived claim on this basis shall not unconstitutional. It does not include Authority: 8 U.S.C. 1101, 1103, 1158, 1226, serve as the basis for any motion to intermittent harassment, including brief 1252, 1282; Title VII of Public Law 110–229. reopen or reconsider for any reason, detentions; threats with no actual effort ■ 22. Amend § 1208.1 by adding including a claim of ineffective to carry out the threats; or, non-severe paragraphs (c), (d), (e), and (f) to read as assistance of counsel. economic harm or property damage, follows: (d) Political opinion. For purposes of though this list is nonexhaustive. The adjudicating an application for asylum existence of government laws or policies § 1208.1 General. under section 208 of the Act or an that are unenforced or infrequently * * * * * application for withholding of removal enforced do not, by themselves, (c) Particular social group. For under section 241(b)(3) of the Act, a constitute persecution, unless there is purposes of adjudicating an application political opinion is one expressed by or credible evidence that those laws or for asylum under section 208 of the Act imputed to an applicant in which the policies have been or would be applied or an application for withholding of applicant possesses an ideal or to an applicant personally. removal under section 241(b)(3) of the conviction in support of the furtherance (f) Nexus—(1) General. For purposes Act, a particular social group is one that of a discrete cause related to political of adjudicating an application for is based on an immutable or control of a state or a unit thereof. The asylum under section 208 of the Act or fundamental characteristic, is defined Attorney General, in general, will not an application for withholding of with particularity, and is recognized as favorably adjudicate claims of aliens removal under section 241(b)(3) of the socially distinct in the society at who claim a fear of persecution on Act, the Attorney General, in general, question. Such a particular social group account of a political opinion defined will not favorably adjudicate the claims cannot be defined exclusively by the solely by generalized disapproval of, of aliens who claim persecution based alleged persecutory acts or harm and disagreement with, or opposition to on the following list of nonexhaustive must also have existed independently of criminal, terrorist, gang, guerilla, or circumstances: the alleged persecutory acts or harm that other non-state organizations absent (i) Interpersonal animus or forms the basis of the claim. The expressive behavior in furtherance of a retribution; Attorney General, in general, will not cause against such organizations related (ii) Interpersonal animus in which the favorably adjudicate claims of aliens to efforts by the state to control such alleged persecutor has not targeted, or who claim a fear of persecution on organizations or behavior that is manifested an animus against, other account of membership in a particular antithetical to or otherwise opposes the members of an alleged particular social social group consisting of or defined by ruling legal entity of the state or a legal group in addition to the member who the following circumstances: Past or sub-unit of the state. A person who has has raised the claim at issue; present criminal activity or association been forced to abort a pregnancy or to (iii) Generalized disapproval of, (including gang membership); presence undergo involuntary sterilization, or disagreement with, or opposition to in a country with generalized violence who has been persecuted for failure or criminal, terrorist, gang, guerilla, or or a high crime rate; being the subject refusal to undergo such a procedure or other non-state organizations absent of a recruitment effort by criminal, for other resistance to a coercive expressive behavior in furtherance of a terrorist, or persecutory groups; the population control program, shall be discrete cause against such targeting of the applicant for criminal deemed to have been persecuted on organizations related to control of a state activity for financial gain based on account of political opinion, and a or expressive behavior that is perceptions of wealth or affluence; person who has a well-founded fear that antithetical to the state or a legal unit of interpersonal disputes of which he or she will be forced to undergo such the state; governmental authorities were unaware a procedure or subject to persecution for (iv) Resistance to recruitment or or uninvolved; private criminal acts of such failure, refusal, or resistance shall coercion by guerilla, criminal, gang, which governmental authorities were be deemed to have a well-founded fear terrorist or other non-state unaware or uninvolved; past or present of persecution on account of political organizations; terrorist activity or association; past or opinion. (v) The targeting of the applicant for present persecutory activity or (e) Persecution. For purposes of criminal activity for financial gain based association; or, status as an alien adjudicating an application for asylum on wealth or affluence or perceptions of returning from the United States. This under section 208 of the Act or an wealth or affluence; list is nonexhaustive, and the substance application for withholding of removal (vi) Criminal activity; of the alleged particular social group, under section 241(b)(3) of the Act, (vii) Perceived, past or present, gang rather than the precise form of its persecution requires an intent to target affiliation; or, delineation, shall be considered in a belief or characteristic, a severe level (viii) Gender. determining whether the group falls of harm, and the infliction of a severe (2) [Reserved] within one of the categories on the list. level of harm by the government of a (g) Evidence based on stereotypes. For No alien shall be found to be a refugee country or by persons or an organization purposes of adjudicating an application or have it decided that the alien’s life or that the government was unable or for asylum under section 208 of the Act freedom would be threatened based on unwilling to control. For purposes of or an application for withholding of membership in a particular social group evaluating the severity of the level of removal under section 241(b)(3) of the in any case unless that person first harm, persecution is an extreme concept Act, evidence promoting cultural articulates on the record, or provides a involving a severe level of harm that stereotypes about an individual or a basis on the record for determining, the includes actions so severe that they country, including stereotypes based on definition and boundaries of the alleged constitute an exigent threat. Persecution race, religion, nationality, or gender, particular social group. A failure to does not encompass the generalized and offered to support the basis of an

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alleged fear of harm from the individual issued pursuant to the Convention ■ c. Adding paragraphs (b)(3)(iii) and or country shall not be admissible in Against Torture’s implementing (b)(3)(iv); and adjudicating that application. legislation, any relevant and applicable ■ d. Adding paragraphs (d) and (e). ■ 23. Amend § 1208.2 by adding information supporting that application, The revisions and additions read as paragraph (c)(1)(ix) to read as follows: any information regarding an alien who follows: has filed such an application, and any § 1208.2 Jurisdiction. relevant and applicable information § 1208.13 Establishing asylum eligibility. * * * * * regarding an alien who has been the * * * * * (c) * * * subject of a reasonable fear or credible (b) * * * (1) * * * fear determination may be disclosed: (3) Reasonableness of internal (ix) An alien found to have a credible (i) As part of an investigation or relocation. For purposes of fear of persecution, reasonable adjudication of the merits of that determinations under paragraphs possibility of persecution, or reasonable application or of any other application (b)(1)(i), (ii), and (b)(2) of this section, possibility of torture in accordance with under the immigration laws, adjudicators should consider the totality § 208.30 of this title, § 1003.42 of this (ii) As part of any state or federal of the relevant circumstances regarding chapter or § 1208.30. criminal investigation, proceeding, or an applicant’s prospects for relocation, * * * * * prosecution; including the size of the country of ■ 24. Amend § 1208.5 by revising the (iii) Pursuant to any state or federal nationality or last habitual residence, first sentence of paragraph (a) to read as mandatory reporting requirement; the geographic locus of the alleged follows: (iv) To deter, prevent, or ameliorate persecution, the size, numerosity, and the effects of child abuse; § 1208.5 Special duties toward aliens in reach of the alleged persecutor, and the custody of DHS. (v) As part of any proceeding arising applicant’s demonstrated ability to under the immigration laws, including (a) General. When an alien in the relocate to the United States in order to proceedings arising under the Act; and apply for asylum. custody of DHS requests asylum or (vi) As part of the Government’s withholding of removal, or expresses a * * * * * defense of any legal action relating to (ii) In cases in which the persecutor fear of persecution or harm upon return the alien’s immigration or custody to his or her country of origin or to is a government or is government- status, including petitions for review sponsored, it shall be presumed that agents thereof, DHS shall make available filed in accordance with 8 U.S.C. 1252. the appropriate application forms and internal relocation would not be (2) If information may be disclosed reasonable, unless the Department of shall provide the applicant with the under paragraph (d)(1) of this section, information required by section Homeland Security establishes by a the disclosure provisions in paragraphs preponderance of the evidence that, 208(d)(4) of the Act, including in the (a), (b), and (c) of this section shall not case of an alien who is in custody with under all the circumstances, it would be apply. reasonable for the applicant to relocate. a positive credible fear determination (e) Nothing in this section shall be (iii) Regardless of whether an under 8 CFR 208.30 or a reasonable fear construed as prohibiting the disclosure applicant has established persecution in determination pursuant to 8 CFR of information contained in an the past, in cases in which the 208.31, and except in the case of an application for asylum, withholding of persecutor is not the government or a alien who is in custody pending a removal under section 241(b)(3)(B) of government-sponsored actor, or credible fear determination under 8 CFR the Act, or protection under the otherwise is a private actor, there shall 208.30 or a reasonable fear regulations issued pursuant to the be a presumption that internal determination pursuant to 8 CFR Convention Against Torture’s relocation would be reasonable unless 208.31. * * * implementing legislation, any relevant the applicant establishes, by a * * * * * and applicable information supporting preponderance of the evidence, that it ■ 25. Amend § 1208.6 by revising that application, information regarding would be unreasonable to relocate. paragraph (b) and adding paragraphs (d) an alien who has filed such an (iv) For purposes of determinations and (e) to read as follows: application, or information regarding an under paragraphs (b)(3)(ii) and (iii) of alien who has been the subject of a § 1208.6 Disclosure to third parties. this section, persecutors who are private reasonable fear or credible fear actors—including persecutors who are * * * * * determination: (b) The confidentiality of other (1) Among employees of the gang members, officials acting outside records kept by DHS and the Executive Department of Justice, the Department their official capacity, family members Office for Immigration Review that of Homeland Security, the Department who are not themselves government indicate that a specific alien has applied of State, the Department of Health and officials, or neighbors who are not for asylum, received a credible fear or Human Services, the Department of themselves government officials—shall reasonable fear interview, or received a Labor, or a U.S. national security agency not be considered to be persecutors who credible fear or reasonable fear review having a need to examine the are the government or government- shall also be protected from disclosure, information for an official purpose; or sponsored absent evidence that the except as permitted in this section. DHS (2) Where a United States government government sponsored the persecution. will coordinate with the Department of employee or contractor has a good faith * * * * * State to ensure that the confidentiality and reasonable belief that disclosure is (d) Discretion. Factors that fall short of those records is maintained if they necessary to prevent the commission of of grounds of mandatory denial of an are transmitted to Department of State a crime, the furtherance of an ongoing asylum application may constitute offices in other countries. crime, or to ameliorate the effects of a discretionary considerations. * * * * * crime. (1) Significant adverse discretionary (d)(1) Any information contained in ■ 26. Section 1208.13 is amended by: factors. The following are significant an application for asylum, withholding ■ a. Revising paragraph (b)(3) adverse discretionary factors that a of removal under section 241(b)(3) the introductory text; decision-maker shall consider, if Act, or protection under regulations ■ b. Revising paragraph (b)(3)(ii); applicable, in determining whether an

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alien merits a grant of asylum in the (1) The alien demonstrates that he or present, the Attorney General, in exercise of discretion: she applied for protection from extraordinary circumstances, such as (i) An alien’s unlawful entry or persecution or torture in at least one those involving national security or unlawful attempted entry into the such country and the alien received a foreign policy considerations, or cases United States unless such entry or final judgment denying the alien in which an alien, by clear and attempted entry was made in immediate protection in such country; convincing evidence, demonstrates that flight from persecution in a contiguous (2) The alien demonstrates that he or the denial of the application for asylum country; she satisfies the definition of ‘‘victim of would result in exceptional and (ii) The failure of an alien to apply for a severe form of trafficking in persons’’ extremely unusual hardship to the alien, protection from persecution or torture in provided in 8 CFR 214.11; or may favorably exercise discretion under at least one country outside the alien’s (3) All such countries through which section 208 of the Act, notwithstanding country of citizenship, nationality, or the alien transited en route to the the applicability of paragraph (d)(2)(i) of last lawful habitual residence through United States were, at the time of the this section. Depending on the gravity of which the alien transited before entering transit, not parties to the 1951 United the circumstances underlying the the United States unless: Nations Convention relating to the application of paragraph (d)(2)(i) of this (A) The alien received a final Status of Refugees, the 1967 Protocol, or section, a showing of extraordinary judgment denying the alien protection the United Nations Convention against circumstances might still be insufficient in such country; Torture and Other Cruel, Inhuman or to warrant a favorable exercise of (B) The alien demonstrates that he or Degrading Treatment or Punishment; discretion under section 208 of the Act. she satisfies the definition of ‘‘victim of (C) Would otherwise be subject to (e) Prima facie eligibility. (1) a severe form of trafficking in persons’’ paragraph (c) of this section but for the Notwithstanding any other provision of provided in 8 CFR 214.11; or reversal, vacatur, expungement, or this part, upon oral or written motion by (C) Such country or countries were, at modification of a conviction or sentence the Department of Homeland Security, the time of the transit, not parties to the unless the alien was found not guilty; an immigration judge shall, if warranted 1951 United Nations Convention (D) Accrued more than one year of by the record, pretermit and deny any relating to the Status of Refugees, the unlawful presence in the United States application for asylum, withholding of 1967 Protocol, or the United Nations prior to filing an application for asylum; removal under section 241(b)(3) of the Convention Against Torture and Other (E) At the time the asylum application Act, or protection under the regulations Cruel, Inhuman or Degrading Treatment is filed with the immigration court or is issued pursuant to the Convention or Punishment; and referred from DHS has: Against Torture’s implementing (iii) An alien’s use of fraudulent (1) Failed to timely file (or timely file legislation if the alien has not documents to enter the United States, a request for an extension of time to file) established a prima facie claim for relief unless the alien arrived in the United any required federal, state, or local or protection under applicable law. An States by air, sea, or land directly from income tax returns; immigration judge need not conduct a the applicant’s home country without (2) Failed to satisfy any outstanding hearing prior to pretermitting and transiting through any other country. federal, state, or local tax obligations; or denying an application under this (2)(i) The Attorney General, except as (3) Has income that would result in paragraph (e)(1) but must consider any provided in paragraph (d)(2)(ii) of this tax liability under section 1 of the response to the motion before making a section, will not favorably exercise Internal Revenue Code of 1986 and that decision. discretion under section 208 of the Act was not reported to the Internal (2) Notwithstanding any other for an alien who: Revenue Service; provision of this part, upon his or her (A) Immediately prior to his arrival in (F) Has had two or more prior asylum own authority, an immigration judge the United States or en route to the applications denied for any reason; shall, if warranted by the record, United States from the alien’s country of (G) Has withdrawn a prior asylum pretermit and deny any application for citizenship, nationality, or last lawful application with prejudice or been asylum, withholding of removal under habitual residence, spent more than 14 found to have abandoned a prior asylum section 241(b)(3) of the Act, or days in any one country unless: application; protection under the regulations issued (1) The alien demonstrates that he or (H) Failed to attend an interview pursuant to the Convention Against she applied for protection from regarding his or her asylum application Torture’s implementing legislation if the persecution or torture in such country with DHS, unless the alien shows by a alien has not established a prima facie and the alien received a final judgment preponderance of the evidence that: claim for relief or protection under denying the alien protection in such (1) Exceptional circumstances applicable law, provided that the country; prevented the alien from attending the immigration judge shall give the parties (2) The alien demonstrates that he or interview; or at least 10 days’ notice prior to entering she satisfies the definition of ‘‘victim of (2) The interview notice was not such an order. An immigration judge a severe form of trafficking in persons’’ mailed to the last address provided by need not conduct a hearing prior to provided in 8 CFR 214.11; or the alien or the alien’s representative pretermitting and denying an (3) Such country was, at the time of and neither the alien nor the alien’s application under this paragraph (e)(2) the transit, not a party to the 1951 representative received notice of the but must consider any filings by the United Nations Convention relating to interview; or parties within the 10-day period before the Status of Refugees, the 1967 (I) Was subject to a final order of making a decision. Protocol, or the United Nations removal, deportation, or exclusion and ■ 27. Amend § 1208.14 by Convention against Torture and Other did not file a motion to reopen to seek ■ a. In paragraphs (c)(4)(ii) introductory Cruel, Inhuman or Degrading Treatment asylum based on changed country text and (c)(4)(ii)(A), removing the or Punishment; conditions within one year of the words ‘‘§ 1235.3(b) of this chapter’’ and (B) Transits through more than one changes in country conditions. adding, in their place, the words country between his country of (ii) Where one or more of the adverse ‘‘§ 235.3(b) of this title’’; and citizenship, nationality, or last habitual discretionary factors set forth in ■ b. In paragraph (c)(4)(ii)(A), removing residence and the United States unless: paragraph (d)(2)(i) of this section are the citations ‘‘§ 1208.30’’ and

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‘‘§ 1208.30(b)’’ and adding, in their The revisions and addition read as inflicted on a person for such purposes place, the words ‘‘§ 208.30 of this title’’. follows: as obtaining from him or her or a third ■ 28. Section 1208.15 is revised to read person information or a confession, § 1208.16 Withholding of removal under punishing him or her for an act he or as follows: section 241(b)(3)(B) of the Act and she or a third person has committed or § 1208.15 Definition of ‘‘firm resettlement.’’ withholding of removal under the Convention Against Torture. is suspected of having committed, (a) An alien is considered to be firmly intimidating or coercing him or her or resettled if: * * * * * a third person, or for any reason based (b) * * * (1) The alien either resided or could on discrimination of any kind, when (3) Reasonableness of internal have resided in any permanent legal such pain or suffering is inflicted by, or relocation. For purposes of immigration status or any non- at the instigation of, or with the consent determinations under paragraphs (b)(1) permanent but potentially indefinitely or acquiescence of, a public official and (b)(2) of this section, adjudicators renewable legal immigration status acting in an official capacity or other should consider the totality of the (including asylee, refugee, or similar person acting in an official capacity. relevant circumstances regarding an status but excluding a status such as a Pain or suffering inflicted by a public applicant’s prospects for relocation, tourist) in a country through which the official who is not acting under color of including the size of the country of alien transited prior to arriving in or law (‘‘rogue official’’) shall not nationality or last habitual residence, entering the United States, regardless of constitute pain or suffering inflicted by, the geographic locus of the alleged whether the alien applied for or was or at the instigation of, or with the persecution, the size, reach, or offered such status; consent or acquiescence of, a public numerosity of the alleged persecutor, official acting in an official capacity or (2) The alien physically resided and the applicant’s demonstrated ability voluntarily, and without continuing to other person acting in an official to relocate to the United States in order capacity, although a different public suffer persecution, in any one country to apply for withholding of removal. for one year or more after departing his official acting in an official capacity or country of nationality or last habitual * * * * * other person acting in an official residence and prior to arrival in or entry (ii) In cases in which the persecutor capacity could instigate, consent to, or into the United States; or is a government or is government- acquiesce in the pain or suffering sponsored, it shall be presumed that (3)(i) The alien is a citizen of a inflicted by the rogue official. internal relocation would not be country other than the one where the * * * * * reasonable, unless the DHS establishes alien alleges a fear of persecution and (7) Acquiescence of a public official by a preponderance of the evidence that, the alien was present in that country requires that the public official, prior to under all the circumstances, it would be prior to arriving in the United States; or the activity constituting torture, have reasonable for the applicant to relocate. (ii) The alien was a citizen of a awareness of such activity and (iii) Regardless of whether an country other than the one where the thereafter breach his or her legal applicant has established persecution in alien alleges a fear of persecution, the responsibility to intervene to prevent the past, in cases in which the alien was present in that country prior such activity. Such awareness requires a persecutor is not the government or a to arriving in the United States, and the finding of either actual knowledge or government-sponsored actor, or alien renounced that citizenship prior to willful blindness. Willful blindness otherwise is a private actor, there shall or after arriving in the United States. means that the public official acting in be a presumption that internal (b) The provisions of 8 CFR 1240.8(d) an official capacity or other person relocation would be reasonable unless acting in an official capacity was aware shall apply when the evidence of record the applicant establishes, by a indicates that the firm resettlement bar of a high probability of activity preponderance of the evidence, that it constituting torture and deliberately may apply. In such cases, the alien shall would be unreasonable to relocate. bear the burden of proving the bar does avoided learning the truth; it is not (iv) For purposes of determinations enough that such public official acting not apply. Either the Department of under paragraphs (b)(3)(ii) and (b)(3)(iii) Homeland Security or the immigration in an official capacity or other person of this section, persecutors who are acting in an official capacity was judge may raise the issue of the private actors, including persecutors application of the firm resettlement bar mistaken, recklessly disregarded the who are gang members, officials acting truth, or negligently failed to inquire. In based on the evidence of record. The outside their official capacity, or family firm resettlement of an alien’s parent(s) order for a public official to breach his members who are not themselves or her legal responsibility to intervene shall be imputed to the alien if the government officials or neighbors who to prevent activity constituting torture, resettlement occurred before the alien are not themselves government officials, the official must have been charged with turned 18 and the alien resided with the shall not be considered to be preventing the activity as part of his or alien’s parents at the time of the firm persecutors who are the government or her duties and have failed to intervene. resettlement unless he or she could not government-sponsored absent evidence No person will be deemed to have have derived any permanent legal that the government sponsored the breached a legal responsibility to immigration status or any non- persecution. intervene if such person is unable to permanent legal immigration status intervene, or if the person intervenes potentially indefinitely renewable * * * * * ■ 30. Amend § 1208.18 by revising but is unable to prevent the activity that (including asylee, refugee, or similar paragraphs (a)(1) and (7) to read as constitutes torture. status but excluding status such as of a follows: tourist) from the alien’s parent. * * * * * ■ 31. Revise § 1208.20 to read as ■ 29. Amend § 1208.16 by; § 1208.18 Implementation of the follows: ■ a. Revising paragraph (b)(3) Convention Against Torture. introductory text; (a) * * * § 1208.20 Determining if an asylum ■ b. Revising paragraph (b)(3)(ii); and (1) Torture is defined as any act by application is frivolous. ■ c. Adding paragraphs (b)(3)(iii) and which severe pain or suffering, whether (a) For applications filed on or after (b)(3)(iv). physical or mental, is intentionally April 1, 1997, an applicant is subject to

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the provisions of section 208(d)(6) of the (2) The alien is eligible for and agrees alien physically present in or arriving in Act only if the alien received the notice to accept voluntary departure for a the Commonwealth of the Northern required by section 208(d)(4)(A) of the period of no more than 30 days Mariana Islands is ineligible to apply for Act and a final order by an immigration pursuant to section 240B(a) of the Act; asylum and may only establish judge or the Board of Immigration (3) The alien withdraws any and all eligibility for withholding of removal Appeals specifically finds that the alien other applications for relief or pursuant to section 241(b)(3) of the Act knowingly filed a frivolous asylum protection with prejudice; and or withholding or deferral of removal application. An alien knowingly files a (4) The alien waives his right to under the regulations issued pursuant to frivolous asylum application if: appeal and any rights to file, for any the Convention Against Torture’s (1) The application is described in reason, a motion to reopen or implementing legislation. paragraph (b) of this section; and reconsider. (b) Treatment of dependents. A (2) The alien filed the application (g) For purposes of this section, a spouse or child of an alien may be with either actual knowledge, or willful finding that an alien filed a knowingly included in that alien’s fear evaluation blindness, of the fact that the frivolous asylum application shall not and determination, if such spouse or application was described in paragraph preclude the alien from seeking child: (b). withholding of removal under section * * * * * (b) For applications filed on or after 241(b)(3) of the Act or protection under (2) Desires to be included in the [INSERT EFFECTIVE DATE OF FINAL the regulations issued pursuant to the principal alien’s determination. RULE], an asylum officer may determine Convention Against Torture’s However, any alien may have his or her that the applicant knowingly filed a implementing legislation. evaluation and determination made frivolous asylum application and may ■ 32. Add § 1208.25 to read as follows: separately, if he or she expresses such refer the applicant to an immigration a desire. § 1208.25 Severability. judge on that basis, so long as the * * * * * applicant has received the notice The provisions of part 1208 are (e) Determination. For the standards required by section 208(d)(4)(A) of the separate and severable from one and procedures for asylum officers in Act. Such finding will only be made if another. In the event that any provision conducting credible fear of persecution, the asylum officer is satisfied that the in part 1208 is stayed, enjoined, not reasonable possibility of persecution, applicant has had sufficient opportunity implemented, or otherwise held invalid, and reasonable possibility of torture to account for any discrepancies or the remaining provisions shall interviews and in making positive and implausible aspects of the claim. For nevertheless be implemented as an negative fear determinations, see 8 CFR applications referred to an immigration independent rule and continue in effect. 208.30. The immigration judges will ■ judge, an asylum officer’s determination 33. Amend § 1208.30 by: ■ review such determinations as provided that an application is frivolous will not a. Revising the section heading; and in paragraph (g) of this section and 8 ■ b. Revising paragraphs (a), (b) render an applicant permanently CFR 1003.42. ineligible for immigration benefits introductory text, (b)(2), (e), and (g). The revisions read as follows: * * * * * unless an immigration judge or the (g) Procedures for negative fear Board makes a finding of frivolousness § 1208.30 Credible fear of persecution, determinations—(1) Review by as described in paragraph (a) of this reasonable possibility of persecution, and immigration judge of a mandatory bar section. reasonable possibility of torture finding. (i) If the alien is determined to (c) For purposes of this section, determinations involving stowaways and be an alien described in 8 CFR beginning on [INSERT EFFECTIVE applicants for admission who are found 208.13(c)(3) or § 1208.13(c)(3) and is DATE OF FINAL RULE], an asylum inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act or whose determined to lack a credible fear of application is frivolous if it: entry is limited or suspended under section persecution or a reasonable possibility (1) Contains a fabricated essential 212(f) or 215(a)(1) of the Act, or who failed of persecution or torture under 8 CFR element; to apply for protection from persecution in 208.30(e)(5)(ii), the immigration judge (2) Is premised upon false or a third country where potential relief is shall first review de novo the fabricated evidence unless the available while en route to the United determination that the alien is described application would have been granted States. in 8 CFR 208.13(c)(3) or § 1208.13(c)(3). without the false or fabricated evidence; (a) Jurisdiction. The provisions of this If the immigration judge finds that the (3) Is filed without regard to the subpart B apply to aliens subject to alien is not described in 8 CFR merits of the claim; or sections 235(a)(2) and 235(b)(1) of the 208.13(c)(3) or § 1208.13(c)(3), then the (4) Is clearly foreclosed by applicable Act. Pursuant to section 235(b)(1)(B) immigration judge shall vacate the order law. and 8 CFR 208.30, DHS has exclusive of the asylum officer, and DHS may (d) If the alien has been provided the jurisdiction to make fear commence asylum-and-withholding- warning required by section determinations, and the immigration only proceedings under § 1208.2(c)(1). If 208(d)(4)(A) of the Act, he or she need judges have exclusive jurisdiction to the immigration judge concurs with the not be given any additional or further review such determinations. Except as determination that the alien is an alien opportunity to account for any issues otherwise provided in this subpart B, described in 8 CFR 208.13(c)(3) or with his or her claim prior to the entry paragraphs (b) through (g) of this section § 1208.13(c)(3), the immigration judge of a frivolous finding. and 8 CFR 208.30 are the exclusive will then review the asylum officer’s (e) An asylum application may be procedures applicable to stowaways and negative determinations regarding found frivolous even if it was untimely applicants for admission who are found credible fear and regarding reasonable filed. inadmissible pursuant to section possibility made under 8 CFR (f) A withdrawn asylum application 212(a)(6)(C) or 212(a)(7) of the Act and 208.30(e)(5)(iv) consistent with may be found frivolous unless: who receive fear interviews, paragraph (g)(2) of this section, except (1) The alien wholly disclaims the determinations, and reviews under that the immigration judge will review application and withdraws it with section 235(b)(1)(B) of the Act and 8 the fear of persecution findings under prejudice; CFR 208.30. Prior to January 1, 2030, an the reasonable possibility standard

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instead of the credible fear standard (A) If the immigration judge concurs (f) Removal of aliens with no described in paragraph (g)(2) of this with the determination of the asylum reasonable fear of persecution or section. officer that the alien has not established torture. If the asylum officer determines (ii) If the alien is determined to be an a credible fear of persecution, that the alien has not established a alien described as ineligible for asylum reasonable possibility of persecution, or reasonable fear of persecution or torture, in 8 CFR 208.13(c)(4) or § 1208.13(c)(4) reasonable possibility of torture, the the asylum officer shall inform the alien and is determined to lack a reasonable case shall be returned to DHS for in writing of the decision and shall possibility of persecution or torture removal of the alien. The immigration inquire whether the alien wishes to under 8 CFR 208.30(e)(5)(v), the judge’s decision is final and may not be have an immigration judge review the immigration judge shall first review de appealed. negative decision, using the Record of novo the determination that the alien is (B) If the immigration judge finds that Negative Reasonable Fear Finding and described as ineligible for asylum in 8 the alien, other than an alien stowaway, Request for Review by Immigration CFR 208.13(c)(4) or § 1208.13(c)(4). If establishes a credible fear of Judge, on which the alien must indicate the immigration judge finds that the persecution, reasonable possibility of whether he or she desires such review. alien is not described as ineligible for persecution, or reasonable possibility of If the alien refuses to make an asylum in 8 CFR 208.13(c)(4) or torture, the immigration judge shall indication, DHS shall consider such a § 1208.13(c)(4), then the immigration vacate the Notice and Order of response as a decision to decline judge shall vacate the order of the Expedited Removal, and DHS may review. asylum officer, and DHS may commence commence asylum-and-withholding- (g) Review by Immigration Judge. The asylum-and-withholding-only only proceedings under § 1208.2(c)(1), asylum officer’s negative decision proceedings under § 1208.2(c)(1). If the during which time the alien may file an regarding reasonable fear shall be immigration judge concurs with the application for asylum and withholding subject to review by an immigration determination that the alien is an alien of removal in accordance with judge upon the alien’s request. If the described as ineligible for asylum in 8 § 1208.4(b)(3)(i). Such application shall alien requests such review, the asylum CFR 208.13(c)(4) or § 1208.13(c)(4), the be considered de novo in all respects by officer shall serve him or her with a immigration judge will then review the an immigration judge regardless of any Notice of Referral to the Immigration asylum officer’s negative decision determination made under this Judge. The record of determination, regarding reasonable possibility made paragraph. including copies of the Notice of under 8 CFR 208.30(e)(5)(v) consistent (C) If the immigration judge finds that Referral to the Immigration Judge, the with paragraph (g)(2) of this section, an alien stowaway establishes a credible asylum officer’s notes, the summary of except that the immigration judge will fear of persecution, reasonable the material facts, and other materials review the fear of persecution findings possibility of torture, or reasonable upon which the determination was under the reasonable possibility possibility of torture, the alien shall be based shall be provided to the standard instead of the credible fear of allowed to file an application for asylum immigration judge with the negative persecution standard described in and for withholding of removal before determination. In the absence of exceptional circumstances, such review paragraph (g)(2) of this section. the immigration judge in accordance shall be conducted by the immigration (2) Review by immigration judge of a with § 1208.4(b)(3)(iii). The immigration judge within 10 days of the filing of the negative fear finding. (i) The asylum judge shall decide the application as Notice of Referral to the Immigration officer’s negative decision regarding a provided in that section. Such Judge with the immigration court. Upon credible fear of persecution, reasonable application shall be considered de novo review of the asylum officer’s negative possibility of persecution, and in all respects by an immigration judge regardless of any determination made reasonable fear determination: reasonable possibility of torture shall be (1) If the immigration judge concurs under this paragraph. Such decision on subject to review by an immigration with the asylum officer’s determination that application may be appealed by judge upon the applicant’s request, in that the alien does not have a reasonable either the stowaway or DHS to the accordance with section fear of persecution or torture, the case Board of Immigration Appeals. If a 235(b)(1)(B)(iii)(III) of the Act. If the shall be returned to DHS for removal of denial of the application for asylum and alien refuses to make an indication, the alien. No appeal shall lie from the for withholding of removal becomes DHS will consider such a response as a immigration judge’s decision. decision to decline review. final, and deferral of removal has not (2) If the immigration judge finds that (ii) The record of the negative fear otherwise been granted pursuant to the alien has a reasonable fear of determination, including copies of the § 1208.17(a), the alien shall be removed persecution or torture, the alien may Notice of Referral to Immigration Judge, from the United States in accordance submit an Application for Asylum and the asylum officer’s notes, the summary with section 235(a)(2) of the Act. If an Withholding of Removal. Such of the material facts, and other materials approval of the application for asylum, application shall be considered de novo upon which the determination was withholding of removal, or, as pertinent, in all respects by an immigration judge based shall be provided to the deferral of removal becomes final, DHS regardless of any determination made immigration judge with the negative fear shall terminate removal proceedings under this paragraph. determination. under section 235(a)(2) of the Act. (i) The immigration judge shall ■ (iii) A fear hearing will be closed to 34. Amend § 1208.31 by revising consider only the alien’s application for the public unless the alien states for the paragraph (f), (g) introductory text, (g)(1) withholding of removal under § 1208.16 record or submits a written statement and (2) to read as follows: and shall determine whether the alien’s that the alien is waiving that § 1208.31 Reasonable fear of persecution removal to the country of removal must requirement; in that event the hearing or torture determinations involving aliens be withheld or deferred. shall be open to the public, subject to ordered removed under section 238(b) of (ii) Appeal of the immigration judge’s the immigration judge’s discretion as the Act and aliens whose removal is decision whether removal must be provided in 8 CFR 1003.27. reinstated under section 241(a)(5) of the withheld or deferred lies with the Board (iv) Upon review of the asylum Act. of Immigration Appeals. If the alien or officer’s negative fear determinations: * * * * * DHS appeals the immigration judge’s

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decision, the Board shall review only Authority: 8 U.S.C. 1101 and note, 1103, initiates removal proceedings against the immigration judge’s decision 1183, 1185 (pursuant to E.O. 13323, 69 FR the alien under section 240 of the Act. 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, regarding the alien’s eligibility for * * * * * withholding or deferral of removal 1225, 1226, 1228, 1365a note, 1379, 1731–32; Title VII of Public Law 110–229; 8 U.S.C. (2) * * * under § 1208.16. 1185 note (section 7209 of Public Law 108– (i) If an asylum officer determines that 458). PART 1212—DOCUMENTARY an alien does not have a credible fear of REQUIREMENTS: NONIMMIGRANTS; § § 1235.1, 1235.2, 1235.3 and 1235.5 persecution, reasonable possibility of WAIVERS; ADMISSION OF CERTAIN [Removed] persecution, or reasonable possibility of INADMISSIBLE ALIENS; PAROLE ■ 39. Remove and reserve §§ 1235.1, torture, and the alien requests a review ■ 35. The authority citation for part 1235.2, 1235.3, and 1235.5. of that determination by an immigration ■ 1212 continues to read as follows: 40. Amend § 1235.6 by: judge; or ■ a. Removing paragraphs (a)(1)(ii) and * * * * * Authority: 8 U.S.C. 1101 and note, 1102, (iii); 1103, 1182 and note, 1184, 1187, 1223, 1225, ■ b. Redesignating paragraph (a)(1)(iv) (iii) If an immigration officer refers an 1226, 1227, 1255; 8 U.S.C. 1185 note (section as paragraph (a)(1)(ii); applicant in accordance with the 7209 of Public Law 108–458); Title VII of ■ provisions of § 208.30 or § 208.31. Public Law 110–229. c. Revising newly redesignated paragraph (a)(1)(ii), and paragraphs * * * * * ■ 36. Add § 1212.13 to read as follows: (a)(2)(i), and (iii); and (c) The provisions of this part are ■ § 1212.13 Severability. d. Adding paragraph (c). separate and severable from one The provisions of this part are The revisions and addition read as another. In the event that any provision separate and severable from one follows: in this part is stayed, enjoined, not another. In the event that any provision § 1235.6 Referral to immigration judge. implemented, or otherwise held invalid, the remaining provisions shall in this part is stayed, enjoined, not (a) * * * nevertheless be implemented as an implemented, or otherwise held invalid, (1) * * * the remaining provisions shall (ii) If an immigration officer verifies independent rule and continue in effect. nevertheless be implemented as an that an alien subject to expedited * * * * * independent rule and continue in effect. removal under section 235(b)(1) of the Chad R. Mizelle, ■ 37. Amend § 1212.14(a)(1)(vii), by Act has been admitted as a lawful Senior Official Performing the Duties of the removing the words ‘‘§ 1235.3 of this permanent resident or refugee, or chapter’’ and adding, in their place, the General Counsel, U.S. Department of granted asylum, or, upon review Homeland Security. words ‘‘§ 235.3 of this title’’. pursuant to § 235.3(b)(5)(iv) of this title, an immigration judge determines that Dated: June 4, 2020. PART 1235—INSPECTION OF William P. Barr, PERSONS APPLYING FOR ADMISSION the alien was once so admitted or granted asylum, provided that such Attorney General. ■ 38. The authority citation for part status has not been terminated by final [FR Doc. 2020–12575 Filed 6–10–20; 4:15 pm] 1235 continues to read as follows: administrative action, and the Service BILLING CODE 4410–30–P; 9111–97–P

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