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DEPARTMENT OF JUSTICE 85 FR 59692 (Sept. 23, 2020). Through first hearing before an immigration the NPRM, the Department proposed judge and is subject to possible Executive Office for Immigration changes to 8 CFR parts 1003, 1208, and extension for good cause by the Review 1240 regarding completeness immigration judge. For aliens who do requirements for such an application, not file the application by the deadline 8 CFR Parts 1003, 1103, 1208 and 1240 and the consequences of filing an set by the immigration judge, the [Docket No. EOIR 19–0010; Dir. Order No. incomplete application. Further, it immigration judge will deem the alien’s 04–2021] proposed to establish a 15-day filing opportunity to submit the application deadline for aliens applying for asylum 1 waived in the proceedings pending RIN 1125–AA93 in asylum-and-withholding only before EOIR, and the case will be proceedings and proposed changes to returned to the Department of Procedures for Asylum and improve adherence to the statutory Homeland Security (‘‘DHS’’). Withholding of Removal requirement that asylum applications be If the Form I–589 requires payment of AGENCY: Executive Office for adjudicated within 180 days absent a fee, this final rule at paragraph (d)(2) Immigration Review, Department of exceptional circumstances. The rule maintains the general requirement for Justice. also proposed to clarify evidentiary applications and motions before EOIR: standards in adjudicating such The alien must submit a fee receipt ACTION: Final rule. applications. together with the application by the deadline set by the immigration judge. SUMMARY: On September 23, 2020, the B. Authority Department of Justice (‘‘DOJ’’ or ‘‘the In response to commenters’ concerns, Department’’) published a notice of The Attorney General is issuing this however, this final rule adds a provision proposed rulemaking (‘‘NPRM’’ or final rule pursuant to the authority at at paragraph (d)(3) to allow flexibility ‘‘proposed rule’’) that proposed to sections 103(g) and 208(d)(5)(B) of the for aliens to meet the filing deadline amend the regulations governing the Immigration and Nationality Act (‘‘INA’’ when the aliens cannot meet all adjudication of applications for asylum or ‘‘the Act’’), 8 U.S.C. 1103(g) and requirements due to no fault of their and withholding of removal before the 1158(d)(5)(B). own. Accordingly, if the alien has not Executive Office for Immigration C. Final Rule yet received a copy of the fee receipt Review (‘‘EOIR’’), including outlining from DHS in time to meet the Form I– Following consideration of the public 589 filing deadline, the alien may requirements for filing a complete comments received, discussed below in application for relief and the instead provide the immigration court section II, the Department has with a copy of the payment submitted consequences of filing an incomplete determined to publish the provisions of application, and establishing a 15-day to DHS when the alien submits his or the proposed rule as final except for the her application to EOIR. Aliens who filing deadline for aliens applying for changes noted in I.C.1 below and certain asylum in asylum-and-withholding- provide this alternative proof of technical amendments. The rationale for payment must still provide a copy of the only-proceedings, and clarifying those provisions that are unchanged evidentiary standards in adjudicating fee receipt. In such an instance, the fee from the proposed rule remains valid. receipt will be due by the deadline the such applications. Further, the 85 FR at 59693–97. Department proposed changes related to immigration judge sets. If the the 180-day asylum adjudication clock. 1. Filing Deadline for Aliens in Asylum- immigration judge does not set a This final rule responds to comments and-Withholding-Only Proceedings separate deadline for the submission of the fee receipt, the alien must submit received in response to the NPRM and The NPRM added a new paragraph (d) the fee receipt within 45 days 2 adopts the NPRM with few changes. to 8 CFR 1208.4, but the final rule splits of the DATES: date of filing the associated This rule is effective on January that paragraph into three parts, 3 15, 2021. including adding a clarification application. In response to a recommendation by FOR FURTHER INFORMATION CONTACT: regarding fee receipts in response to commenters’ concerns. Paragraph (d)(1) a commenter, the Department is also Lauren Alder Reid, Assistant Director, amending 8 CFR 1208.4(d)(1) in the Office of Policy, Executive Office for of the final rule mirrors paragraph (d) in the proposed rule; it establishes an final rule to apply the 15-day deadline Immigration Review, 5107 Leesburg to applications for statutory withholding Pike, Falls Church, VA 22041, telephone initial 15-day filing deadline for the submission of Form I–589, Application of removal and protection under the (703) 305–0289 (not a toll free call). CAT for aliens in proceedings under 8 SUPPLEMENTARY INFORMATION: for Asylum and for Withholding of Removal, including applications for 2 The INA states both that a fee may be charged I. Background protection under the CAT, by aliens in for an asylum application, INA 208(d)(3), 8 U.S.C. A. Proposed Rule asylum-and-withholding-only 1158(d)(3), and that the initial hearing on an asylum proceedings under 8 CFR 1208.2(c)(1) application occur within 45 days of filing the On September 23, 2020, the and 1208.4(b)(3)(iii). The 15-day period application absent exceptional circumstances, INA Department published an NPRM that 208(d)(5)(A)(ii), 8 U.S.C. 1158(d)(5)(A)(ii). Thus— is calculated from the date of the alien’s for an asylum application that requires a fee— would amend EOIR’s regulations because the application cannot be filed until the fee regarding the procedures for the 1 An application for asylum is also an application is paid and because a hearing cannot occur on the submission and consideration of for statutory withholding of removal, 8 CFR application until it is filed, the Department finds applications for asylum, statutory 1208.3(b), and this rule clarifies that it is also an that the statutory scheme in INA 208, 8 U.S.C. 1158, application for protection under the CAT. contemplates that it is reasonable to expect an alien withholding of removal, and protection Moreover, as discussed, infra, the final rule to have received a fee receipt within 45 days of under the regulations issued pursuant to contains provisions related to aliens seeking filing the asylum application. the legislation implementing the withholding of removal or CAT protection—but not 3 In addition, this final rule adds corresponding Convention Against Torture and Other asylum—in proceedings under 8 CFR 1208.2(c)(2). cross-references to 8 CFR 1003.8, 1003.24, 1003.31, Thus, unless the context indicates otherwise, and 1103.7 to account for this exception to the Cruel, Inhuman or Degrading Treatment references to an asylum application in this final general requirement that any form or application or Punishment (‘‘CAT’’). Procedures for rule encompass references to statutory withholding that requires a fee must be submitted together with Asylum and Withholding of Removal, of removal and protection under the CAT. the fee receipt.

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CFR 1208.2(c)(2). The Department sees rule provides that an application is application, including an application for no reason to distinguish between aliens incomplete if, in addition to existing withholding of removal and protection subject to proceedings under 8 CFR grounds, it is not completed and under the CAT, so long as the judge has 1208.2(c)(1) and those subject to submitted in accordance with the form provided a copy to both parties and both proceedings under 8 CFR 1208.2(c)(2), instructions or is unaccompanied by parties have had an opportunity to as both groups are generally detained. any required fee receipt (or alternate comment on or object to the evidence Moreover, the reasons underpinning the proof, as necessary). prior to the issuance of the immigration application deadline for 8 CFR Second, the rule further revises 8 CFR judge’s decision. 1208.2(c)(1) apply with equal force to 1208.3(c)(3) by removing the current 4. Asylum Adjudication proceedings under 8 CFR 1208.2(c)(2). provision that deems an alien’s Accordingly, in response to the incomplete asylum application to be The rule removes and reserves 8 CFR recommendation of at least one complete if the immigration court fails 1208.7, relating to obtaining work commenter, the final rule adopts the to return the application within 30 days authorization from DHS, and 1208.9, commenter’s suggestion and edits the of receipt. Instead, the rule provides that relating to procedures for interviews language in 8 CFR 1208.4(d)(1) to make immigration courts will reject all before DHS asylum officers. The rule the 15-day deadline, with the possibility incomplete applications. Moreover, the also amends 8 CFR 1003.10(b) to make of an extension for good cause, rule adds a maximum of 30 days from clear that, in the absence of exceptional applicable to aliens in proceedings the date of rejection for the alien to circumstances, an immigration judge under 8 CFR 1208.2(c)(2) seeking correct any deficiencies in his or her shall complete adjudication of an statutory withholding of removal or application. Under the rule, an asylum asylum application within 180 days protection under the CAT regulations. applicant’s failure to re-file a corrected after the application’s filing date. Finally, the final rule makes a syntax application within the 30-day time The rule amends 8 CFR 1003.10(b) to change to the language in 8 CFR period, absent exceptional provide a definition of ‘‘exceptional 1208.4(d)(1) to clarify that if an alien circumstances, shall result in a finding circumstances’’ for purposes of does not file an appropriate application that the alien has abandoned that 1003.10(b), 1003.29, and 1240.6, and to by the deadline set by the immigration application and waived the opportunity clarify that the section’s use of the judge, the immigration judge shall deem to file such an application in the phrase ‘‘exceptional circumstances’’ the opportunity to file such an proceedings pending before EOIR. refers to those scenarios that are beyond application waived, and the case shall Lastly, the rule updates language in 8 the control of the parties or the be returned to DHS. The proposed rule CFR 1208.3(c)(3) regarding incomplete immigration court. included the phrase ‘‘for execution of an asylum applications and potential work Furthermore, the rule amends 8 CFR order of removal’’ after ‘‘DHS,’’ but that authorization, changing a reference to 1003.29 to specify that nothing in that phrasing risks confusion because not the ‘‘150-day period after which the section authorizes a continuance that every alien in proceedings under 8 CFR applicant may file an application for causes the adjudication of an asylum 1208.2(c)(1) is subject to an order of employment authorization’’ to remove application to exceed 180 days. removal. See, e.g., 8 CFR the specific time period to ensure that Similarly, the rule revises 8 CFR 1208.2(c)(1)(iii) (VWP applicant for EOIR regulations do not contradict DHS 1003.31 to provide that the section shall admission who is denied admission). regulations regarding employment not authorize setting or extending time Accordingly, the final rule deletes that authorization eligibility. limits for the filing of documents after phrase to make clear that in the an asylum application has been filed 3. Clarification Regarding Immigration that would cause the adjudication of an circumstances of 8 CFR 1208.4(d)(1), the Judge Evidentiary Considerations case will simply be returned to DHS, asylum application to exceed 180 days. and DHS will take whatever subsequent The rule clarifies what type of Consistent with INA 208(d)(5)(A)(iii), 8 action it deems appropriate. external materials an immigration judge U.S.C. 1158(d)(5)(A)(iii), both of these may rely on under 8 CFR 1208.12 when changes provide for an exception if 2. Requirements for the Filing of an deciding an asylum application, which exceptional circumstances as defined in Application includes an application for withholding 8 CFR 1003.10(b) apply. The rule also The rule amends 8 CFR 1208.3(c)(3) of removal and protection under the revises 8 CFR 1240.6 to include that the regarding the requirements for filing a CAT, or deciding whether an alien has section does not authorize an Form I–589, Application for Asylum a credible fear of persecution or torture adjournment that causes the and for Withholding of Removal, and pursuant to 8 CFR 1208.30, or a adjudication of an asylum application to the procedures for correcting errors in reasonable fear of persecution or torture exceed 180 days in the absence of filed applications. These amendments pursuant to 8 CFR 1208.31. The rule exceptional circumstances as defined in apply to the submission of any Form I– allows immigration judges to rely on 8 CFR 1003.10(b). 589 before EOIR, including aliens in resources provided by the Department 5. Technical Amendments removal proceedings under section 240 of State, other DOJ offices, DHS, or other of the Act, 8 U.S.C. 1229a, aliens in U.S. government agencies. The rule also The file rule adopts the proposal that asylum-and-withholding-only provides that immigration judges may any required fee be submitted by the proceedings under 8 CFR 1208.2(c)(1) rely on foreign government and non- time of filing, but further provides for and 1208.4(b)(3)(iii), and aliens in governmental sources when the judge cross-references to both 8 CFR 103.7 and withholding-only proceedings under 8 determines those sources are credible 8 CFR part 106 to prevent confusion and CFR 1208.2(c)(2). and the material is probative. ensure consistency regardless of how First, the rule specifies that the Additionally, the rule expands 8 CFR the litigation over the DHS rule 4 is application must be filed in accordance 1208.12 to allow an immigration judge, resolved. with the form instructions and the on his or her own authority, to submit general requirements for filings before probative evidence from credible 4 The final rule related to fees charged by USCIS for filing of an I–589 was preliminarily enjoined by the immigration court at 8 CFR 1003.24, sources into the record. The two federal district courts prior to its effective date. 1003.31(b), and 1103.7(a)(3), including immigration judge may consider such Immigrant Legal Resource Ctr. v. Wolf, No. 20–cv– the payment of any required fee. The evidence in ruling on an asylum Continued

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In addition, this rule provides for Guidance Regarding the Adjudication of provisions of the rule deleting a technical amendments not addressed in Asylum Applications Consistent with regulation regarding EAD applications the proposed rule. It corrects outdated INA § 208(d)(5)(A)(iii) (Nov. 19, 2018), that is inapplicable to EOIR, 8 CFR references to ‘‘Service’’ to properly https://www.justice.gov/eoir/page/file/ 1208.7, will be effective on the effective reference ‘‘DHS’’ in 8 CFR 1001.31(b). 1112581/download. Thus, the date. Finally, and for similar reasons, Similarly, it clarifies references to provisions of the rule relating to INA the provisions of the rule deleting a ‘‘withholding of removal’’ by 208(d)(5)(A)(iii), 8 U.S.C. regulation regarding asylum officers, 8 referencing section 241(b)(3) of the INA 1158(d)(5)(A)(iii) and continuances CFR 1208.9, that is inapplicable to in order to distinguish that form of based on exceptional circumstances, EOIR—because asylum officers are protection from protection under the which are already in effect by both employees of DHS, not EOIR—will be CAT. Additionally, for precision, it statute and policy, apply to pending effective on the effective date. replaces references to the CAT with cases. These provisions are simply reference to 8 CFR 1208.16 through adoptions of existing law or, at most, II. Public Comments on the Proposed 1208.18. No substantive changes are clarifications of existing law. Rule intended by these amendments. Accordingly, they do not have an impermissible retroactive effect if A. Summary of Public Comments D. Effective Date applied to pending cases. See Levy v. The comment period for the proposed As noted above, this rule is effective Sterling Holding Co., LLC, 544 F.3d 493, rule ended on October 23, 2020. Of the on January 15, 2021. 506 (3d Cir. 2008) (‘‘Thus, where a new Further, the Department clarifies rule constitutes a clarification—rather 2,031 comments received, the majority herein the rule’s mostly prospective than a substantive change—of the law as were from individual and anonymous temporal application. The provisions of it existed beforehand, the application of commenters. The minority of comments the rule regarding the 15-day filing that new rule to pre-promulgation came from non-profit organizations, law deadline for the submission of asylum conduct necessarily does not have an firms, and members of Congress. While applications apply only to asylum-and- impermissible retroactive effect, some commenters supported the NPRM, withholding-only proceedings initiated regardless of whether Congress has the majority of commenters expressed after the effective date of the final rule. delegated retroactive rulemaking power opposition to the rule, either in whole The provisions of the rule related to the to the agency.’’ (emphasis in original)). or in part. I–589 completeness and filing Similarly, the rule incorporates requirements apply only to asylum In general, comments opposing the principles established by binding rule misapprehended its impact; applications submitted after the rule’s precedent allowing—if not also misstated its contents; failed to effective date. Except as noted below, requiring, in some instances—an recognize that significant portions of it the provisions of the rule related to immigration judge to submit evidence in immigration judge evidentiary an asylum adjudication. See 85 FR at merely incorporate longstanding law— considerations apply to proceedings of 59695 (collecting authorities, including from either statute or binding any type initiated after the rule’s Matter of S–M–J–, 21 I&N Dec. 722, 729 precedent—into the regulations, effective date. (BIA 1997) (en banc)). Thus, the provided no evidence—other than The rule incorporates the statutory provisions of the rule relating to an isolated and often distinguishable requirement that ‘‘in the absence of immigration judge’s submission of anecdotes—to support broad claims of exceptional circumstances, final evidence, which are already in effect particular impacts; made unverified, administrative adjudication of the through binding precedent, apply to speculative, and hypothetical asylum application, not including pending cases. These provisions are generalizations that do not account for administrative appeal, shall be simply adoptions of existing law or, at the case-by-case and individualized completed within 180 days after the most, clarifications of existing law and, decision-making associated with date an application is filed.’’ INA thus, do not have an impermissible adjudicating asylum applications; were 208(d)(5)(A)(iii), 8 U.S.C. retroactive effect if applied to pending inconsistent with applicable law, 1158(d)(5)(A)(iii). That provision was cases. See Sterling Holding Co., LLC, contrary to the Department’s enacted nearly 25 years ago and is 544 F.3d at 506. considerable experience in adjudicating currently in force. Moreover, EOIR Additionally, EOIR does not asylum applications, or otherwise reiterated its policy to comply with that adjudicate—and has never untethered to a reasoned basis; lacked statutory provision, including the legal adjudicated—applications for an understanding of relevant law and conclusion that ‘‘good cause’’ is not employment authorization documents procedures regarding asylum synonymous with ‘‘exceptional (EADs) for aliens with pending asylum application adjudications or the overall circumstances,’’ over two years ago. applications; rather, DHS does. 8 CFR immigration system; failed to engage EOIR Policy Memorandum 19–05, 274a.13(a) (2020). Further, the with the specific reasons and language settlement agreement applicable to the put forth by the Department in lieu of 05883–JSW, 2020 WL 5798269 (N.D. Cal. Sept. 29, processing of asylum applications and 2020); Nw. Immigrant Rights Project v. U.S. EAD applications in A.B.T. v. U.S. broad generalizations or hyperbolic, Citizenship & Immigration Servs., No. 19–3283 Citizenship and Immigration Servs., No. unsupported presumptions; or, reflected (RDM), 2020 WL 5995206 (Oct. 8, 2020). Although assertions rooted in the rule’s failure to this final rule updates cross-references in EOIR’s CV11–2108–RAJ (W.D. Wash.) (‘‘ABT regulations to DHS’s regulations to account for the Settlement Agreement’’) expired in agree with the commenters’ policy USCIS rule’s amendments of DHS’s regulations, the 2019, and EOIR has already announced preferences rather than the USCIS fees remain governed by DHS’s previous identification of specific legal regulations while the aforementioned injunctions that it will no longer provide aliens or remain in effect. Because the ultimate resolution of their representatives with a copy of a deficiencies or other factors the the litigation challenging the DHS fee rule is 180-Day Asylum EAD Clock Notice. See Department should consider. As the vast unknown, this final rule amends EOIR’s regulations EOIR Policy Memorandum 21–02, majority of comments in opposition fall to include cross-references to both the previous within one of these categories, the DHS regulations and the new regulations to ensure Withdrawal of Operating Policies and that the cross-references do not become inaccurate Procedures Memoranda 13–03 and 16– Department offers the following general regardless of how the litigation is resolved. 01 (Nov. 6, 2020). Accordingly, the responses to them, supplemented by

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more detailed, comment-specific then have 10 days within which to Department is unaware of any such responses below.5 submit an asylum application to the argument that would outweigh the In particular, the Department notes district director having jurisdiction over benefits in that regard in the rule. that many, if not most, commenters the port-of-entry. The district director Most, if not all, commenters opposed failed to engage with or acknowledge may extend the 10-day filing period for to the rule appeared to view its the existing law that informed the good cause.’’); 8 CFR 1208.3(c)(3) (‘‘An procedural changes wholly through a NPRM, much of which has been in asylum application that does not results-oriented lens such that a existence for years with no noted include a response to each of the proposal that commenters speculatively challenges or expressions of concerns. questions contained in the Form I–589, believed would cause aliens to ‘‘win’’ For example, the provisions is unsigned, or is unaccompanied by the fewer cases was deemed objectionable, incorporating the statutory requirement required materials specified in even without evidence that such a result that ‘‘in the absence of exceptional paragraph (a) of this section is would follow. Such a view appeared to circumstances, final administrative incomplete.’’). Commenters did not have been based on a tacit belief that adjudication of the asylum application, persuasively explain—if they attempted aliens were entitled to specific not including administrative appeal, to explain at all—why these well- outcomes in specific cases, shall be completed within 180 days after established legal principles are notwithstanding the relevant evidence the date an application is filed,’’ INA inappropriate bases for the rule. or law applicable to a case, and that the 208(d)(5)(A)(iii), 8 U.S.C. rule inappropriately required Most commenters failed to 1158(d)(5)(A)(iii), do not reflect any adjudicators to maintain impartiality in novel or recent legal development. That acknowledge the benefits of the rule, adjudicating cases rather than statutory provision was enacted nearly such as expeditious consideration of continuing to provide what commenters 25 years ago and is currently in force meritorious asylum claims by detained viewed as favorable treatment toward with no noted challenges since it was aliens. Indeed, commenters did not aliens. To the extent that commenters enacted. Moreover, EOIR reiterated its explain why it would be preferable for simply disagree as a policy matter that policy to comply with that statutory the Department not to expedite asylum cases should be adjudicated in provision over two years ago, including consideration of asylum claims, a timely manner, Doherty, 502 U.S. at the legal conclusion that ‘‘good cause’’ particularly those made by detained 323 (‘‘As a general matter, every delay is not synonymous with ‘‘exceptional aliens, given the risks of faded works to the advantage of the deportable circumstances,’’ over two years ago. memories and evidence degradation that alien who wishes merely to remain in EOIR Policy Memorandum 19–05, adjudicatory delays invite. Relatedly, the United States.’’), or that the Guidance Regarding the Adjudication of few, if any, commenters acknowledged Department should take measures, Asylum Applications Consistent with or addressed the issue of how a delay consistent with due process, to ensure INA § 208(d)(5)(A)(iii) (Nov. 19, 2018), in adjudication also makes it more the timely completion of such cases, the https://www.justice.gov/eoir/page/file/ difficult for aliens to obtain pro bono Department finds such policy 1112581/download. representation. See, e.g., Human Rights disagreements utterly unpersuasive. Similarly, the rule incorporates First, The U.S. Immigration Court, Many, if not all, commenters failed to principles established by binding https://www.humanrightsfirst.org/sites/ acknowledge the reality that no one precedent allowing—if not also default/files/HRF-Court-Backlog- rulemaking can cover every conceivable requiring, in some instances—an Brief.pdf (last visited Dec. 4, 2020) adjudicatory scenario. EOIR currently immigration judge to submit evidence in (hereinafter ‘‘HRF Report’’) (‘‘In a has over 570,000 asylum applications an asylum adjudication. See 85 FR at February 2016 survey conducted by pending adjudication, and each one is 59695. In particular, Matter of S–M–J– Human Rights First of 24 pro bono subject to adjudication based on its own has been binding for over 20 years, coordinators at many of the nation’s individual facts. Consequently, the again with no noted challenge to it. major law firms, nearly 75 percent of Department cannot rule out the Further, the rule, in multiple ways, pro bono professionals indicated that possibility that at least one claim will reflects influence from longstanding delays at the immigration court are a present an issue not contemplated by existing regulations that have also not significant or very significant negative the rule, including a unique scenario been the subject of challenge or concern. factor in their ability to take on a pro posited by a commenter. Nevertheless, See, e.g., 8 CFR 1208.5(a) (‘‘Where bono case for legal representation before the rule is expected to cover most possible, expedited consideration shall the court.’’). In short, commenters failed applications and contains appropriate be given to [adjudicating asylum] to put forth a persuasive argument for safeguards—e.g., extension of a filing applications of detained aliens.’’); 8 CFR why the Department should not deadline for good cause—that should 1208.5(b) (‘‘An alien crewmember shall expeditiously consider asylum adequately address any unique or be provided the appropriate application applications, especially for detained unexpected situations. forms and information required by aliens with meritorious claims,6 and the Relatedly, many commenters section 208(d)(4) of the Act and may criticized the Department for not 6 To the extent that commenters tacitly providing more quantitative data in the 5 Many comments were also inconsistent, both acknowledged that most asylum claims are not NPRM, yet did not explain what type of internally and with other comments. For example, meritorious and, thus, that such claims should not some comments posited that the rule focused too be expedited in order to allow aliens additional data that is actually tracked would be much on efficiency whereas others argued that the time in the United States, the Department finds appropriate, particularly to address rule did not promote efficiency at all. Some such an argument hardly compelling. The unique or hypothetical scenarios put comments asserted that immigration judges are Department recognizes and agrees with the forth by commenters. The level of ‘‘biased,’’ while others suggested that the Supreme Court’s observation that ‘‘as a general Department should allow immigration judges to matter, every delay works to the advantage of the granularity presumed by commenters continue to set deadlines rather than providing deportable alien who wishes merely to remain in for hundreds of thousands of asylum deadlines through rulemaking or should even the United States.’’ INS v. Doherty, 502 U.S. 314, applications does not exist, and even if promote immigration judges to become judges 323 (1992). Any rationale for encouraging or under Article I of the Constitution. The Department supporting the dilatory adjudication of cases both it did, the Department could not be has addressed all of these comments individually is both inherently unpersuasive and wholly herein and acknowledges that inconsistencies make outweighed by the importance of timeliness and meritorious claims—in adjudicating asylum many of the comments even less persuasive. fairness—especially to detained aliens with applications.

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expected to consider every speculative depend on variables that cannot be immigration proceedings conducted by possibility presented by commenters. accurately predicted such as new the Department, INA 241(a)(2), 8 U.S.C. Moreover, the portions of the rule inflows of illegal immigration, the 1231(a)(2). In either case, however, the incorporating existing law—e.g., the validity of any claims made by aliens in Department lacks authority to either 180-day adjudication deadline, the those inflows subject to the credible fear parole the aliens into the United authority of an immigration judge to screening process, and DHS’s exercise of States—and, thus, order them as submit evidence—are not dependent on prosecutorial discretion—and wholly applicants for admission released from data because the stem from already- outside the Department’s control. DHS custody—or to order the release of binding authority. Moreover, commenters did not aliens subject to a final order of Many commenters raised questions explain why the size of the population removal. Consequently, unless released about the possibility of the Department subject to proceedings under 8 CFR by DHS, such aliens would be subject to issuing multiple final rules related to 1208.2(c) matters for purposes of the custody during the adjudication of their asylum in 2020. The Department rule. Regardless of the size of the asylum applications. acknowledges that it has proposed and population subject to a 15-day filing More specifically, alien crewmembers finalized multiple rules in 2019 and deadline, the Department, DHS, and the described in 8 CFR 1208.2(c)(1)(i)(A) 2020 but categorically rejects any asylum applicant all have a strong who are applicants for a landing permit assertions that it has done so for any interest in the expedited consideration are subject to detention during sort of nefarious purpose. Each of the of an asylum claim, particularly where inspection. INA 232(a), 235(a)(3) and Department’s rules stands on its own, that claim is a meritorious one put forth (d)(2), 254(a)(1), 8 U.S.C. 1222(a), however, and each includes by a detained alien. Further, even if the 1225(a)(3) and (d)(2), 1284(a)(1); 8 CFR explanations of its basis and purpose, size of the population of aliens subject 235.3(a), 252.1(a). Alien crewmembers while allowing for public comment. to 8 CFR 1208.2(c) mattered to the described in 8 CFR 1208.2(c)(1)(i)(B) Further, the interplay and impact of all degree alleged by commenters, the who have been refused permission to of the rules is speculative at the present Department has determined, as a matter land are also subject to detention. INA time, particularly due to ongoing and of policy, that the benefits of the rule as 254(a)(2), 8 U.S.C. 1284(a)(2). Alien expected future litigation, which may a whole—e.g., better effectuation of crewmembers described in 8 CFR allow all, some, or none of the rules to statutory directives, the expedited 1208.2(c)(1)(i)(C) who have been granted ultimately take effect. Nevertheless, to consideration of meritorious asylum permission to land are subject to the extent commenters noted some claims, and the elimination of detention and removal if their landing potential overlap or joint impacts, the provisions that are immaterial to EOIR— permits are subsequently revoked.8 INA Department regularly considers the far outweigh any negative impacts that 252(b), 8 U.S.C. 1282(b); 8 CFR 252.2. existing and potential legal framework it would, including in tandem with Alien stowaways described in 8 CFR when a specific rule is proposed or other rules. 1208.2(c)(1)(ii) found to have a credible implemented. Additionally, commenters who raised fear of persecution or torture are subject Regarding the interplay of this rule the issue of the interplay between this to detention pursuant to INA and other recent proposed and finalized rule and the June 2020 proposed rule 235(b)(1)(B)(ii), 8 U.S.C. rules, the Department notes that failed to acknowledge that this rule 1225(b)(1)(B)(ii). Alien applicants for commenters generally focused on the would actually provide an additional admission under the Visa Waiver Department’s proposed joint rule with safeguard to that rule to ensure that an Program (‘‘VWP’’) described in 8 CFR DHS from June 2020, Procedures for alien’s asylum claims is not 1208.2(c)(1)(iii) are subject to detention Asylum and Withholding of Removal; inadvertently pretermitted. See 85 FR at during inspection, like all arriving Credible Fear and Reasonable Fear 36277; see also note 47, infra. For all of aliens. INA 232(a), 235(a)(3) and (d)(2), Review, 85 FR 36264 (June 15, 2020). these reasons—and as discussed in more 8 U.S.C. 1222(a), 1225(a)(3) and (d)(2); According to commenters, that detail below—the Department simply 8 CFR 235.3(a). An alien admitted under proposed rule, if implemented, would finds commenters’ concerns about this the VWP who is found to be deportable result in a significant number of aliens rule in connection with other proposed is ordered removed. 8 CFR 217.4(b).9 being subject to proceedings under 8 and finalized rules to be unavailing. Accordingly, an alien admitted under CFR 1208.2(c) and, thus, subject to the Relatedly, regarding the 15-day filing the VWP described in 8 CFR new 15-day filing deadline under this deadline in particular, many, if not most 1208.2(c)(1)(iv) is subject to detention as rule.7 Although the Department does commenters, failed to acknowledge that an alien with an order of removal. INA not dispute that by finalizing that the 15-day deadline in the rule for filing 241(a)(2), 8 U.S.C. 1231(a)(2).10 proposed rule, there will be an an asylum application applies additional category of aliens subject to principally to detained aliens. That 8 Landing permits are typically valid for 29 days. proceedings under 8 CFR 1208.2(c) and, provision applies to aliens in 8 CFR 252.1(d). An alien crewman who applies for thus, subject to the new filing deadline proceedings under 8 CFR 1208.2(c), and asylum during that 29-day period expresses an under this rule, it does note that those categories are usually subject to intent not to depart on the vessel or aircraft on commenters’ suggestion of the size of detention unless paroled from custody which the crewman arrived and, thus, triggers the possibility of revocation of the crewman’s landing that category is both grossly by DHS. The categories of aliens permit. INA 252(b), 8 U.S.C. 1282(b); cf. 8 CFR speculative—because the number would described in 8 CFR 1208.2(c) encompass 1208.5(b)(1) (‘‘If the alien [crewman] makes such aliens subject to inspection and fear known to an official while off such conveyance, 7 Commenters also posited that DHS’s expansion detention as applicants for admission, the alien shall not be returned to the conveyance of expedited removal authority would further INA 232(a), 235(a)(3) and (d)(2), 8 U.S.C. but shall be retained in or transferred to the custody increase the number of affected aliens subject to of the [DHS].’’). this rule. See Designating Aliens for Expedited 1222(a), 1225(a)(3) and (d)(2); 8 CFR 9 As a condition of participation in the VWP, an Removal, 84 FR 35409 (July 23, 2019); see also 235.3(a), including those who are later alien agrees to waive any right to contest any Make the Rd. New York v. Wolf, 962 F.3d 612, 618 denied admission, and aliens who have removal action against the alien, other than through (D.C. Cir. 2020). As discussed, infra, the size of the entered the United States and an application for asylum, which would necessarily population affected has little relationship to the include detention. INA 217(b)(2), 8 U.S.C. import of the rule, and even if the size were subsequently become subject to removal 1187(b)(2). material to some degree of operational impact, the through an administratively final 10 Aliens subject to the Guam-Commonwealth of benefits of the rule far outweigh any such impacts. removal order issued by DHS outside of the Northern Mariana Islands VWP are subject to

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Alien applicants for admission with Department cannot predict definitively In short, aliens described in 8 CFR an S visa described in 8 CFR whether that rule will go into effect as 1208.2(c) are generally subject to 1208.2(c)(1)(vi) are subject to detention finalized. detention by DHS under various statutes during inspection, like all arriving Nevertheless, even if that joint rule and regulations with no authorization aliens. INA 232(a), 235(a)(3) and (d)(2), goes into effect and aliens who receive for the Department to reconsider DHS’s 8 U.S.C. 1222(a), 1225(a)(3) and (d)(2); a positive credible fear determination detention determination and, thus, 8 CFR 235.3(a). An alien admitted as an are placed in proceedings under 8 CFR unless paroled by DHS, will be detained S nonimmigrant described in 8 CFR 1208.2(c), 85 FR at 36267, such aliens while their asylum applications are 1208.2(c)(1)(vi) who is subsequently would still be subject to detention adjudicated by immigration judges. A ordered removed, 8 CFR 236.4(b), is also unless paroled by DHS. See Jennings v. pre-existing regulation unaltered by this subject to detention. INA 241(a)(2), 8 Rodriguez, 138 S. Ct. 830, 842 (2018) rule already directs the Department to U.S.C. 1231(a)(2).11 (‘‘Read most naturally, [8 U.S.C.] adjudicate such applications Aliens described in 8 CFR §§ 1225(b)(1) and (b)(2) thus mandate 1208.2(c)(1)(v) are those ordered detention of applicants for admission hearings for aliens who have received positive removed under INA 235(c), 8 U.S.C. until certain proceedings have credible fear determinations, though that decision was premised on a putative constitutional due 1225(c). Such aliens are subject to concluded. Section 1225(b)(1) aliens are process right to a bond hearing rather than the detention as aliens with final orders of detained for ‘‘further consideration of statutory interpretation of INA 235(b)(1), 8 U.S.C. removal. INA 241(a)(2), 8 U.S.C. the application for asylum,’’ and 1225(b)(1), advanced by the Supreme Court in § 1225(b)(2) aliens are in turn detained Jennings and the Attorney General in Matter of M– 1231(a)(2). Similarly, aliens described in S–. See Padilla v. Immig. And Cust. Enforc., 953 8 CFR 1208.2(c)(2) are those subject to for ‘‘[removal] proceeding[s].’’ Once F.3d 1134 (9th Cir. 2020), petition for cert. filed, removal orders, either through those proceedings end, detention under Dkt. 20–234 (Aug. 27, 2020). As noted, supra, the reinstating a prior order, INA 241(a)(5), § 1225(b) must end as well. Until that Department also expects the rulemaking referenced point, however, nothing in the statutory by commenters, which places aliens who receive a 8 U.S.C. 1231(a)(5), or through the positive credible fear determination in proceedings issuance of an administrative order of text imposes any limit on the length of under 8 CFR 1208.2(c), to be challenged through removal as an alien convicted of an detention. And neither § 1225(b)(1) nor litigation. The Department cannot predict the aggravated felony, INA 238(b), 8 U.S.C. § 1225(b)(2) says anything whatsoever outcomes of either litigation, but the possible about bond hearings.’’); see also Matter outcomes would not affect this final rule or the 1228(b). Such aliens are subject to Department’s consideration of comments regarding detention as aliens with orders of of M–S–, 27 I&N Dec. 476 (A.G. 2018) it. If the provisions of the joint rulemaking removal. INA 241(a), 8 U.S.C. 1231(a). (‘‘The [INA] provides that, if an alien in referenced by commenters are finalized as proposed The June 2020 proposed joint rule on expedited proceedings establishes a but then permanently enjoined, then that rule credible fear, he ‘shall be detained for would, of course, have no effect on this final rule. asylum procedures was recently If the provisions of the joint rulemaking referenced finalized without change to the further consideration of the application by commenters are finalized as proposed and go provision cited by commenters. See for asylum.’ . . . There is no way to into effect and if the Government’s position in Procedures for Asylum and Withholding apply those provisions except as they Padilla is ultimately determined to be correct, then are written—unless paroled, an alien this final rule addresses that situation as discussed of Removal; Credible Fear and herein. In that situation, all aliens subject to Reasonable Fear Review, signed by the must be detained until his asylum claim proceedings under 8 CFR 1208.2(c) would remain Attorney General and the Acting is adjudicated. The Supreme Court ineligible for bond hearings, and their cases would warrant expeditious treatment accordingly, Secretary of Homeland Security on recently held exactly that, concluding that section 235(b)(1) ‘mandate[s] consistent with longstanding regulatory language, 8 December 2, 2020. The Department CFR 1208.5(a) (‘‘Where possible, expedited expects that there will be a litigation detention throughout the completion of consideration shall be given to [asylum] challenge to that rule, just as there has [removal] proceedings’ unless the alien applications of detained aliens’’). Finally, if the provisions of the joint rulemaking referenced by been to most of its recent immigration- is paroled.’’ (emphasis added) (citations omitted) (quoting Jennings, 138 S. Ct. at commenters are finalized as proposed and go into 12 effect but the Government’s position in Padilla is related rulemakings. Thus, the 13 844–45)). ultimately determined not to be correct, then aliens similar procedures regarding refusal of admission who receive a positive credible fear determination and removal as aliens subject to the regular VWP. Constitution, the Administrative Procedure Act, would still be subject to both detention and 8 CFR 212.1(q)(8). Consequently, aliens described and the immigration laws themselves. These proceedings under 8 CFR 1208.2(c), but would be in 8 CFR 1208.2(c)(1)(vii) and (viii) are subject to plaintiffs have urged courts to enjoin the rule’s eligible for bond hearings before an immigration detention on the same bases as aliens described in enforcement not only as it applies to them, or even judge. In that situation, any impacts of this rule 8 CFR 1208.2(c)(1)(iii) and (iv). to some definable group having something to do have also been accounted for, contrary to with their claimed injury, but as it applies to commenters’ suggestions. Aliens seeking bond in 11 As a condition of being granted S anyone.’’). The Department is also aware of the that situation would have a strong incentive— nonimmigrant status, an alien waives any right to pernicious effects of nationwide injunctions. See, consistent with this final rule—to file an asylum contest, other than an application for withholding e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424–25 application expeditiously to bolster their arguments of removal, any removal action against the alien, (2018) (Thomas, J. concurring) (‘‘Injunctions that in support of release from custody. See, e.g., Matter including detention, before the alien obtains lawful prohibit the Executive Branch from applying a law of Andrade, 19 I&N Dec. 488, 491 (BIA 1997) permanent resident status. INA 214(k)(3)(C), 8 or policy against anyone—often called ‘universal’ or (alien’s potential eligibility for relief reflects on the U.S.C. 1184(k)(3)(C); 8 CFR 236.4(a). ‘nationwide’ injunctions—have become likelihood of the alien’s appearance at future 12 The Department recognizes that litigation, increasingly common. District courts, including the hearings which addresses whether an alien is a including the potential for an initial nationwide one here, have begun imposing universal likely flight risk). To be sure, the filing of an asylum injunction, has become almost inevitable regarding injunctions without considering their authority to application does not automatically entitle an alien any immigration policy or regulation that does not grant such sweeping relief. These injunctions are to bond. See Matter of R–A–V–P–, 27 I&N Dec. 803 provide a perceived benefit to aliens, and it is aware beginning to take a toll on the federal court (BIA 2020) (alien with a pending asylum that litigation will likely follow this rule, just as it system—preventing legal questions from application but no family, employment, community has others of a similar nature. Cf. DHS v. New York, percolating through the federal courts, encouraging ties, or probable path to obtain lawful status is a 140 S. Ct. 599, 599 (2020) (Gorsuch, J. concurring forum shopping, and making every case a national flight risk who does not warrant release on bond). in the grant of a stay) (‘‘On October 10, 2018, the emergency for the courts and for the Executive But, consistent with 8 CFR 1208.5(a), an alien who Department of Homeland Security began a Branch.’’ (footnote omitted)). Nevertheless, the is not granted bond still warrants expeditious rulemaking process to define the term ‘public Department does not believe that the inevitability consideration of his or her asylum application charge,’ as it is used in the Nation’s immigration of litigation over contested issues is a sufficient which is facilitated by this final rule. In short, laws. Approximately 10 months and 266,000 basis to preclude the exercise of statutory and regardless of the possible permutations of litigation comments later, the agency issued a final rule. regulatory authority in furtherance of the law and outcomes related to relevant other rulemakings Litigation swiftly followed, with a number of States, the policies of the Executive Branch. referenced by commenters, this final rule has fully organizations, and individual plaintiffs variously 13 The Ninth Circuit has affirmed a preliminary considered the possible variations and commenters’ alleging that the new definition violates the injunction restoring the availability of bond attendant concerns.

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expeditiously. 8 CFR 1208.5(a) (‘‘Where the Department’s process. As discussed day comment period instead of a 60-day possible, expedited consideration shall herein, nothing in the NPRM singles out or longer period and requested an be given to [asylum] applications of specific populations of aliens, including extension of the 30-day comment detained aliens.’’). Commenters did not unrepresented aliens,14 nor do any of its period. Commenters cited Executive challenge this longstanding directive or changes fall disproportionately upon Order 12866 and stated that a 60-day provide persuasive reasons why such groups in unacceptable manner. To comment period is the standard period detained aliens—e.g., those subject to the extent that commenters did not of time that should be provided for a proceedings under 8 CFR 1208.2(c), engage with the NPRM itself, provided complex rule like the NPRM. including those are subject to such unsupported assertions of fact or law, Commenters stated that the 30-day proceedings if the recent joint rule goes attacked, tacitly or explicitly, the comment period is an insufficient into effect—should not be given motivations of the Department’s period of time for them to adequately expedited consideration, particularly if adjudicators, or otherwise put forward consider and respond to the significance such aliens have meritorious claims and suggestions based on their preferred of the rule’s proposed changes. Many the approval of the claim will lead to results rather than an impartial and commenters emphasized that the release from detention. The Department timely process, the Department declines comment period is particularly believes strongly that asylum claims of to adopt those comments. Further, to the inadequate given the broader context detained aliens should receive extent that commenters provided that DOJ independent and DHS and DOJ expeditious considerations, and substantive analysis and raised jointly have recently published a commenters’ suggestions to the contrary important issues, the Department has number of complex proposed rules on a overall were not sufficiently compelling considered all of them; however, on wide range of immigration-related to warrant changing this rule. balance, except for changes noted above, topics.15 Commenters noted that the Finally, many comments appeared it has determined that the policy and closeness of the comment periods for rooted in a belief that EOIR’s operational benefits of the rule these rules and that, because the adjudicators are incompetent or expressed above outweigh all of the Departments have not yet issued final unethical and are either incapable or issues raised by commenters. rules, commenters cannot accurately unwilling to adhere to applicable law. Accordingly, although the Department know the broader regulatory context for Some commenters explicitly traduced has reviewed all comments received, the providing comment on the instant rule immigration judges; for example, one vast majority of them fall into the in a short period of time. commenter asserted that immigration groupings outlined above, and few of Commenters also stated that the 30- judges have a ‘‘routine bias’’ against them are persuasive for reasons day comment period is insufficient in aliens and that immigration judges explained in more detail below. the context of the COVID–19 pandemic, routinely ‘‘engage in a host of other which, commenters explained, has unethical behavior toward B. Comments Expressing Support strained commenters’ ability to prepare respondents.’’ Such generalized, ad Comment: Several commenters comments due to unique childcare, hominem allegations of bias or expressed general support for the rule work-life, and academic difficulties. impropriety are insufficient to and immigration reform. Commenters Commenters noted examples of other ‘‘overcome a presumption of honesty noted the need for regulatory reform Federal agencies that have extended and integrity in those serving as given the delays in asylum comment periods due to the impact of 16 adjudicators.’’ Withrow v. Larkin, 421 adjudications. These commenters COVID–19. U.S. 35, 47 (1975); see also United supported all aspects of the rule, which Other commenters further noted that States v. Chem. Found., Inc., 272 U.S. 1, they stated would allow the Department there was a Federal holiday (Labor Day) 14–15 (1926) (‘‘The presumption of to resolve cases in an expeditious during the comment period or that regularity supports the official acts of manner. One commenter stated that the natural disasters and wildfires have public officers, and, in the absence of rule will increase efficiency and bring caused other personal difficulties that make the 30-day comment period clear evidence to the contrary, courts asylum and withholding regulations particularly short for meaningful presume that they have properly within the plain meaning and intent of discharged their official duties.’’). comment. the INA. Some commenters stated that there is Moreover, they provide no principled Response: The Department agrees no need for urgency given the basis for the Department to consider with the commenters that these lengthiness of the immigration court changes to the NPRM. regulatory changes will better support process, delays due to COVID–19, and In sum, the Department issued the congressional intent and increase the effective closure of the border by the NPRM for the reasons given in order to operational efficiencies. ensure asylum claims are expeditiously Centers for Disease Control and considered, especially claims of C. Comments Expressing Opposition Prevention under Title 42 authority.17 Other commenters explained that the detained aliens, to better effectuate 1. Administrative Procedure Act: statutory directives in the INA, to Concerns Regarding the Ability To 15 For example, commenters noted, inter alia, the ensure authority is appropriately Comment exercised, to ensure immigration judges following recent rulemaking actions: Appellate Comment: Many commenters objected Procedures and Decisional Finality in Immigration consider only complete asylum Proceedings; Administrative Closure, 85 FR 52491 applications and a developed record to the Department’s allowance of a 30- (Aug. 26, 2020); Procedures for Asylum and containing probative evidence from Withholding of Removal; Credible Fear and credible sources, and to promote 14 The Department has fully considered the Reasonable Fear Review, 85 FR 36264 (June 15, possible impacts of this rule on the relatively small 2020). impartial and timely adjudications pro se population of aliens with asylum 16 See, e.g., Bureau of Consumer Financial consistent with the law. It did not do so applications. As discussed below, however, the rule Protection, Debt Collection Practices (Regulation F); for any nefarious purpose, nor did it neither singles such aliens out for particular Extension of Comment Period, 85 FR 30890 (May intend for its procedural changes to treatment, nor does it restrict or alter any of the 21, 2020). many procedural avenues such aliens already have 17 See Order Suspending the Right to Introduce have any substantive bearing on the available to them in advancing their cases. Further, Certain Persons From Countries Where a outcomes of additional cases, which nothing in the rule inhibits the availability of pro Quarantinable Communicable Disease Exists, 85 FR flow from the evidence and the law, not bono counsel to assist such aliens as appropriate. 65806 (Oct. 16, 2020).

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30-day comment period was particularly comment period, but those comments shortest time period sufficient for short as they were also working extra are unavailing for all of the reasons interested persons to meaningfully hours during the comment period to given herein. review a proposed rule and provide take action for clients in advance of the Similarly, contrary to commenters’ informed comment.’’ Nat’l Lifeline Ass’n October 2, 2020 effective date for U.S. assertions, there is no evidence that v. Fed. Commc’ns Comm’n, 921 F.3d Citizenship and Immigration Services’ either the COVID–19 pandemic or the 1102, 1117 (D.C. Cir. 2019) (citing Petry (‘‘USCIS’’) new fees. U.S. Citizenship Labor Day holiday had any effect on the v. Block, 737 F.2d 1193, 1201 (D.C. Cir. and Immigration Services Fee Schedule sufficiency of the 30-day comment 1984)). and Changes to Certain Other period. To the contrary, the number of Further, litigation has mainly focused Immigration Benefit Request comments received, as well as their on the reasonableness of comment Requirements, 85 FR 46788 (Aug. 3, breadth, are strong evidence that the periods shorter than 30 days, often in 2020). comment period was sufficient, the face of exigent circumstances. See, Some commenters noted that DHS has particularly for a short NPRM that made e.g., North Carolina Growers’ Ass’n. v. provided 60-day comment periods for few substantive changes. Employers United Farm Workers, 702 F.3d 755, 770 much less complex or significant items around the country have adopted (4th Cir. 2012) (analyzing the related to forms. See, e.g., Agency telework flexibilities to the greatest sufficiency of a 10-day comment Information Collection Activities; extent possible, and the Department period); Omnipoint Corp. v. FCC, 78 Extension, Without Change, of a believes that interested parties can use F.3d 620, 629–30 (D.C. Cir. 1996) (15- Currently Approved Collection: Petition the available technological tools to day comment period); Northwest for U Nonimmigrant Status, 85 FR prepare their comments and submit Airlines, Inc. v. Goldschmidt, 645 F.2d 58381 (Sept. 18, 2020). them electronically. Indeed, nearly 1309, 1321 (8th Cir. 1981) (7-day Response: The Department believes every comment was received in this comment period). Here, the significant the 30-day comment period was manner. Further, crediting the number of detailed public comments is sufficient to allow for meaningful public assertions of commenters would evidence that the 30-day period was input, as evidenced by the 2,031 public effectively preclude rulemaking by the sufficient for the public to meaningfully comments received, including Department for the duration of the review and provide informed comment. numerous detailed comments from COVID–19 outbreak, regardless of the See, e.g., Little Sisters of the Poor Saints interested organizations. The NPRM was length of the comment period. The Peter and Paul Home v. Pennsylvania, comparatively short (seven full pages in Department finds no basis to suspend 140 S. Ct. 2367, 2385 (2020) (‘‘The the Federal Register plus parts of two all rulemaking while the COVID–19 object [of notice and comment], in short, other pages), it proposed to amend only outbreak is ongoing. Similarly, is one of fair notice.’’ (citation omitted)). nine paragraphs in all of chapter V of 8 commenters’ assertions regarding Labor Finally, commenters’ comparisons to CFR, and the issues it addressed were Day reflect an intent to impose a blanket the time allowed for comment on either already set by statute (e.g., the rule that any comment period changes related to forms are inapposite. 180-day adjudication deadline in INA encompassing a Federal holiday should By statute, the Paperwork Reduction Act 208(d)(5)(A)(iii), 8 U.S.C. always be extended, but that position is (‘‘PRA’’) requires a 60-day comment 1158(d)(5)(A)(iii)), well-known to aliens not supported by law, policy, or period for proposed information and practitioners (e.g., completing and practice. The Department acknowledges collections like those referenced by the filing an application), well-established that particular commenters may have commenters. 44 U.S.C. 3506(c)(2)(A). In as immigration court practices (e.g., the faced individual personal circumstances contrast, as explained above, there is no setting of filing deadlines and the which created challenges to similar statutory requirement for the development of the record by an commenting, but that assertion is true of proposed rule itself. Overall, the immigration judge), or the deletion of every rulemaking. Further, there is no Department disagrees that the comment provisions that were practically evidence of a systemic inability of period was too short or that commenters inapplicable to EOIR (e.g., former 8 CFR commenters to provide comments based did not receive fair notice and an 1208.7 and 1208.9). Moreover, on personal circumstances, and opportunity to respond. commenters generally did not explain commenters’ assertions appear to reflect Comment: Some commenters accused what additional issues they would raise a desire to slow the rulemaking due to the Department of engaging in during a longer comment period, and policy disagreements rather than an ‘‘staggered rulemaking,’’ which, the volume of comments—as well as actual inability to comment on the rule. according to commenters, has made it their breadth—reflects an ample Overall, the Department finds that impossible for them to adequately consideration of issues during the neither the COVID–19 pandemic nor comment on the potential effect of this comment period. In short, there is no any other particular circumstances rule. According to commenters, several indication that the comment period was alleged by commenters limited the pending rulemakings could ‘‘radically insufficient. public’s ability to meaningfully engage alter’’ procedures before the EOIR. As Additionally, to the extent that in the notice and comment period. such, commenters asserted that, without commenters referred to other proposed The Administrative Procedure Act knowing which proposed rules will rulemakings as a basis for asserting the (‘‘APA’’) does not require a specific ultimately be published and how they comment period should have been comment period length, see generally 5 might be altered in their final form, they longer, their comparisons are U.S.C. 553(b)–(c). While it is true that are being forced to comment without inapposite. No other proposed Executive Order 12866 recommends a being able to consider the full aggregate rulemaking cited by commenters comment period of at least 60 days, no effect of all of the Department’s addressed small, discrete changes which specific length is required. Rather, proposed rules. relate to well-established provisions and Federal courts have presumed 30 days Response: The Department did not with which aliens and practitioners to be a reasonable comment period purposefully separate its policy goals have been quite familiar with for length. For example, the D.C. Circuit has into separate regulations in order to decades. In short, the Department stated that ‘‘[w]hen substantial rule prevent the public from being able to acknowledges and has reviewed changes are proposed, a 30-day meaningfully review and provide commenters’ concerns about the 30-day comment period is generally the comment and rejects any assertions to

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the contrary. The Department Instead, the rule is intended to help the ultimately benefit those with acknowledges that it has proposed Department better allocate limited meritorious claims. The Department multiple rules in 2019 and 2020 but resources in order to more expeditiously agrees with commenters that asylum categorically rejects any assertions that adjudicate meritorious asylum and remains an important form of possible it has done so for any sort of nefarious statutory withholding of removal relief for individuals seeking protection, purpose. Each of the Department’s rules claims. For example, setting a 15-day and notes that these changes are needed stands on its own, includes deadline for asylum applications in to better address the backlog of pending explanations of their basis and purpose, asylum-and-withholding-only asylum cases and address current and allows for public comment, as proceedings will help streamline the inefficiencies in the asylum system. See, required by the APA. See Little Sisters process by ensuring that immigration e.g., EOIR, Adjudication Statistics: Total of the Poor Saints Peter & Paul Home, judges can adjudicate such claims Asylum Applications (July 14, 2020), 140 S. Ct. at 2386 (explaining that the expeditiously. Similarly, establishing a https://www.justice.gov/eoir/page/file/ APA provides the ‘‘maximum deadline by which an incomplete 1106366/download. In addition, this procedural requirements’’ that an application must be returned will allow rule will help ensure that the system is agency must follow in order to cases to be adjudicated in a timely and more effective for those who truly have promulgate a rule). Further, the predictable manner. Likewise, the ‘‘nowhere else to turn.’’ Matter of B–R–, interplay and impact of all of the rules clarifications regarding what materials 26 I&N Dec. 119, 122 (BIA 2013) is speculative at the present time, both an immigration judge may consider will (internal citations omitted). because many of them are not yet prevent time being wasted on from non- Additionally, the Department rejects finalized and because of ongoing and credible sources or material that is not the assertion that this rule will lead to expected future litigation, which may probative. further backlogs. The Department has allow all, some, or none of the rules to Further, this rule is not representative made or proposed numerous regulatory ultimately take effect. Nevertheless, to of a particular value judgment regarding changes recently to address the extent commenters noted some the contributions or relative merits of inefficiencies where appropriate, and potential overlap or joint impacts, the immigrants or asylum seekers in the this rule is another tool to do so. See, Department regularly considers the United States. Instead, the rule is e.g., Appellate Procedures and existing and potential legal framework intended to increase overall efficiencies Decisional Finality in Immigration when a specific rule is proposed or for the processing and adjudication of Proceedings; Administrative Closure, 85 implemented. Further, nothing in any asylum applications before EOIR, which FR 52491 (Aug. 26, 2020) (proposed) rule proposed by the Department, in turn would benefit asylum seekers by (addressing inefficiencies in case including the one underlying this final enabling individuals with meritorious adjudications at the Board of rule, precludes the public from claims to more quickly receive relief Immigration Appeals (BIA)); Expanding meaningfully reviewing and and gain stability in the United States. the Size of the Board of Immigration commenting on that rule. Moreover, Comment: Similarly, many Appeals, 85 FR 18105 (Apr. 1, 2020) even if all rules were in effect, the commenters expressed a belief that the (interim rule) (adding two member Department has concluded that the rule was designed to make the asylum positions to the BIA so that the BIA may benefits of the instant rule discussed in process more difficult and an attempt to more efficiently and timely adjudicate the NPRM, e.g., 85 FR at 59693–98 and severely limit immigration through appeals); Organization of the Executive herein—as well as the benefits asylum. Commenters stated that the rule Office for Immigration Review, 84 FR discussed in the other rules ultimately erects needless barriers for those fleeing 44537 (Aug. 26, 2019) (interim rule) outweigh any combined impact the violence and persecution. Numerous (providing, in part, for more efficient rules may have. commenters also asserted that the rule disposition of cases through a would virtually negate the United delegation of authority); EOIR Electronic 2. General Opposition States’ asylum system and turn Filing Pilot Program, 83 FR 29575 (June The majority of commenters opposed immigration courts into deportation- 25, 2018) (public notice) (creating a the rule, and many commenters focused entities, which would prioritize pilot program to test an electronic filing expressed generalized statements of the deportation of asylum seekers rather system that would greatly improve opposition, sometimes in overwrought than the fair adjudication of their immigration adjudication processing in and tendentious terms, that were not claims. Several of the commenters the immigration courts and eventually specifically related to the rule’s suggested that the underlying motive the BIA). Overall, the Department substantive changes. behind the rule is a desire by the believes that the rule will not exacerbate Comment: Several commenters stated administration to end the ability of inefficiencies considering all changes in that the rule conflicts with American people to seek asylum in the United the aggregate. Moreover, commenters’ values and its deeply rooted policy of States. Likewise, many commenters prediction that more appeals will be welcoming immigrants and refugees, stated that the rule would essentially filed because of the rule is purely which, commenters asserted, would lead to the denial of all asylum claims. speculative and ignores the case-by-case damage the Nation’s standing in the In addition, commenters also asserted way in which asylum applications are world. Moreover, a number of that the rule would result in more adjudicated. commenters stated that the rule is backlogs in the immigration court Comment: Some commenters immoral, cruel, or the product of racist system because more appeals would be expressed concerns with the or other ill-intent. Other commenters filed. Department’s exercise of authority and expressed statements of admiration for Response: This rule does not in any jurisdiction related to the rule. For immigrants or asylum seekers, such as way ‘‘negate’’ the United States’ asylum example, commenters stated that commenters’ belief that asylum seekers system, prevent aliens from applying for Congress, not the Department, must be as a group contribute positively to the asylum, or prevent the granting of the entity to make the sorts of changes United States. meritorious claims, contrary to to the asylum procedures set out in the Response: The rule is not immoral, commenters’ claims. To the contrary, proposed rule. Commenters cited a cruel, motivated by racial animus, or the changes make the asylum system variety of reasons why these changes are promulgated with discriminatory intent. more efficient and uniform, and will most appropriately the province of

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Congress, including commenters’ belief, important policies for an extended violates the applicant’s right to seek as mentioned above, that the rule would period of time, such as a presidential asylum and the United States’ non- effectively end or eliminate asylum election cycle. refoulement obligations. Commenters availability and limit how many asylum Comment: Many commenters also explained that the 15-day deadline was seekers would get relief annually, the expressed broad concern that the rule too short and would prevent asylum breadth of the changes in the proposed would erode aliens’ due process rights seekers from applying for asylum or rule, and alleged inconsistencies in immigration court proceedings. accessing legal representation, thereby between the Act and the rule. Specifically, commenters asserted that subjecting them to the possibility of Commenters expressed a belief that the rule would diminish aliens’ due return to a country where their life or changes as significant as those proposed process rights by rushing the asylum freedom may be threatened. should only be undertaken by Congress. process and by making it more difficult Commenters also stated that the 15-day Other commenters asserted that the for them to have enough time to obtain filing deadline, when read in Department should not amend its representation, pay fees, or gather conjunction with the Department’s other regulations in such close proximity to a records. recently proposed asylum rules, would presidential election. Response: Commenters are incorrect create a categorical bar to asylum for Response: To the extent that that the rule will impede aliens’ due many asylum seekers in violation of the commenters intimated that the process rights in the manner speculated applicant’s right to seek asylum. Department should adhere to laws by commenters. It should be noted that Similarly, commenters stated that passed by Congress regarding asylum EOIR’s mission remains ‘‘to adjudicate requiring an asylum application fee adjudications such as INA immigration cases by fairly, would prevent asylum seekers from 208(d)(5)(A)(iii), 8 U.S.C. expeditiously, and uniformly applying for asylum and that the 1158(d)(5)(A)(iii), which is incorporated interpreting and administering the Department should include an income- into the rule, the Department agrees that Nation’s immigration laws.’’ EOIR, based or other exception. Commenters it should effectuate the laws passed by About the Office (Aug. 14, 2018), noted that only three other countries Congress. Commenters are incorrect, https://www.justice.gov/eoir/about- impose an asylum fee but that even however, that Congress, not the office. In other words, the Department those countries allowed for exceptions. Department, must make the sorts of must balance fairness concerns with the Commenters stated that requiring such a changes to the asylum procedures set countervailing need for efficiency and fee without an exception raises the risk out in the proposed rule. Both the expeditiousness in EOIR proceedings. of refoulement. proposed rule and this final rule are Although the rule changes timing and Commenters likewise argued that issued pursuant to the Attorney other procedural requirements, the rule mandatorily rejecting incomplete General’s statutory authority provided does not deny due process to any alien. applications would subject applicants to by Congress. See INA 103(g) and Due process in an immigration potential refoulement for even minor 208(d)(5)(B), 8 U.S.C. 1103(g) and proceeding requires notice and a omissions, such as failing to complete a 1158(d)(5)(B). Despite commenters’ meaningful opportunity to be heard, field on the Form I–589 that is not statements, the provisions of the rule are neither of which are affected by this applicable to the applicant. One consistent with the Act. Should rule. See LaChance v. Erickson, 522 U.S. commenter noted that the 1951 Refugee Congress enact legislation that amends 262, 266 (1998) (‘‘The core of due Convention obligates countries to give the provisions of the Act that are process is the right to notice and a applicants the benefit of the doubt, interpreted and affected by this rule, the meaningful opportunity to be heard.’’). which should apply to minor errors or Department will engage in future None of the changes in the rule limit omissions on the form. rulemaking as needed. aliens in immigration proceedings Lastly, commenters stated that the The Department also rejects before EOIR from obtaining rule does not provide for fair and commenters’ argument that the representation, presenting evidence, or efficient procedures, which commenters Department’s authority to engage in applying for immigration relief such explain are an essential element in rulemaking is related to the relative that it violates their due process rights. applying the 1951 Refugee Convention timing of a presidential election. The and related international obligations. APA already allows for democratic 3. Violates International Law Commenters explained that input in agency decision-making Comment: Several commenters were implementing these standards includes through the required notice and concerned that the rule violates the providing a realistic opportunity for comment procedures. See 5 U.S.C. United States’ ostensible obligations asylum seekers to have their claims 553(c). Moreover, the Supreme Court under international law, citing the 1948 developed, heard in full, and fairly has stated that ‘‘an agency to which Universal Declaration of Human Rights decided. Commenters alleged that the Congress has delegated policy-making (‘‘UDHR’’), the 1951 Convention relating 15-day filing deadline, the mandatory responsibilities may, within the limits to the Status of Refugees (‘‘1951 Refugee rejection of incomplete applications, the of that delegation, properly rely on the Convention’’), the 1967 Protocol relating charging of asylum application fees, and incumbent administration’s views of to the Status of Refugees (‘‘1967 the 180-day adjudication deadline are wise policy to inform its judgments.’’ Protocol’’), and the CAT. Specifically, not fair procedures because they do not Chevron, U.S.A., Inc. v. Natural Res. commenters asserted that the rule take into account the difficulties and Def. Council, Inc., 467 U.S. 837, 865 violates the international right to seek needs of asylum-seekers, such as lack of (1984). As such, it is irrelevant that the asylum, the principle of non- English language skills, lack of counsel, presidential election was set to occur in refoulement, and the international unfamiliarity with the U.S. legal system, close proximity to the rule’s publication obligation to provide fair and efficient and the lasting effects of trauma, among and comment period. Further, there is asylum procedures. others. Rather, commenters alleged that no law suspending rulemaking within a Commenters stated that the rule’s the changes appear to be intended to certain period before a presidential provisions implementing a 15-day filing prevent asylum seekers from applying election, and the American system of deadline, requiring an asylum for relief. government does not generally application fee, and mandatorily Response: This rule is consistent with countenance the cessation of work on rejecting incomplete applications the United States’ obligations as a party

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to the 1967 Protocol, which incorporates for the purposes of asylum violates non- 33 of the Convention, but instead Articles 2 through 34 of the 1951 refoulement obligations.18 Because the corresponds to Article 34.’’) (emphasis Refugee Convention. This rule is also rule does not impose a fee for statutory in original). consistent with U.S. obligations under withholding of removal or protection The Department also notes that Article 3 of the CAT, as implemented in under the CAT regulations,19 the rule rejecting incomplete or deficient asylum the immigration regulations pursuant to would still be consistent with the applications does not violate non- the implementing legislation. These provisions of the 1951 Refugee refoulement principles. Again, this rule treaties are not directly enforceable in Convention, 1967 Protocol, and the does not alter any applicant’s U.S. law, but some of their obligations CAT. See R–S–C– v. Sessions, 869 F.3d substantive rights regarding eligibility have been implemented by domestic 1176, 1188 n.11 (10th Cir. 2017) for asylum, statutory withholding of legislation and implementing (explaining that ‘‘the Refugee removal, and protection under the regulations. See INS v. Stevic, 467 U.S. Convention’s non-refoulement regulations issued pursuant to 407, 428 & n.22 (1984); Al-Fara v. principle—which prohibits the legislation implementing the CAT. Gonzales, 404 F.3d 733, 743 (3d Cir. deportation of aliens to countries where When applicants comply with the filing 2005) (‘‘The 1967 Protocol is not self- the alien will experience persecution— requirements, including submission of a executing, nor does it confer any rights is given full effect by the Attorney completed application, and are beyond those granted by implementing General’s withholding-only rule’’); otherwise eligible for consideration, domestic legislation.’’); Foreign Affairs Cazun v. Att’y Gen. U.S., 856 F.3d 249, their applications receive full review Reform and Restructuring Act of 1998 257 & n.16 (3d Cir. 2017); Ramirez-Mejia and deliberation. Additionally, even (‘‘FARRA’’), Public Law 105–277, sec. v. Lynch, 813 F.3d 240, 241 (5th Cir. where the applicant errs in submitting 2242(b), 112 Stat. 2681, 2631–822 (8 2016); Maldonado v. Lynch, 786 F.3d an incomplete application, the applicant U.S.C. 1231 note); 8 CFR 208.16(b) and 1155, 1162 (9th Cir. 2015) (explaining has the opportunity to correct any (c), 208.17 and 208.18; 1208.16(b) and that Article 3 of the CAT, which sets out deficiencies within 30 days. Rejection of (c), 1208.17, and 1208.18. Similarly, the the non-refoulement obligations of an application for failure to comply UDHR does not create enforceable signatories, was implemented in the with these reasonable filing deadlines obligations on its own. Sosa v. Alvarez- United States by the Foreign Affairs and requirements does not conflict with Machain, 542 U.S. 692, 734 (2004) (‘‘But Reform and Restructuring Act of 1998 the United States’ international the [UDHR] does not of its own force (‘‘FARRA’’) (Pub. L. 105–277, sec. obligations. See, e.g., Hui Zheng v. impose obligations as a matter of 2242(b), 112 Stat. 2681, 2631–822 (8 Holder, 562 F.3d 647, 655–56 (4th Cir. international law.’’). U.S.C. 1231 note)) and its implementing 2009) (‘‘[T]he U.N. Protocol [and] the The Department disagrees that this regulations); see also INS v. Cardoza- CAT [are] . . . effectuated through a rule contravenes the UDHR’s article Fonseca, 480 U.S. 421, 429, 441 (1987) statutory scheme that Congress has stating that everyone has the right to (‘‘[Withholding of removal] corresponds established, and which the Attorney seek asylum protections in other to Article 33.1 of the Convention .... General has implemented through countries. The rule does not prohibit [Asylum] by contrast, is a discretionary regulations governing both the BIA and anyone from seeking asylum. Instead, mechanism which gives the Attorney the procedures available to aliens the rule simply requires all applicants to General the authority to grant the seeking entry to the United States.’’); comply with established filing broader relief of asylum to refugees. As Yuen Jin v. Mukasey, 538 F.3d 143, 159 requirements, including, for aliens in such, it does not correspond to Article (2d Cir. 2008); Chen v. Mukasey, 524 asylum-and-withholding-only F.3d 1028, 1033 (9th Cir. 2008); proceedings, complying with delineated 18 Comments objecting to that fee are beyond the Foroglou v. Reno, 241 F.3d 111, 113 (1st filing deadlines. Further, in the rare scope of the rule and the Department generally. Cir. 2001). instances where an applicant has good Whether a fee is required for the Form I–589 is a Finally, as stated before, it is widely cause to miss the filing deadline, the matter determined by DHS, not by the Department. accepted that meritorious claims should immigration judge may extend the filing See 8 CFR 1103.7(b)(4)(ii). DHS issued a final rule imposing a $50 fee for asylum applications—other be granted as rapidly as possible while deadline after considering the relevant than for genuine unaccompanied alien children acknowledging that frivolous or facts. (UAC) who file for asylum while in immigration untenable claims be identified as soon Immigration laws should enable the proceedings before EOIR—that was scheduled to go as is feasible in the screening process. granting of immigration relief or into effect on October 2, 2020. U.S. Citizenship and Immigration Services Fee Schedule and Changes to This rule benefits legitimate asylum protection to eligible individuals, and Certain Other Immigration Benefit Request claims by clarifying statutory the prompt removal of those who are Requirements, 85 FR at 46791. That rule was requirements and streamlining the ineligible. This revision will expedite enjoined on September 29, 2020, Immigrant Legal asylum process. the consideration of meritorious claims Res. Ctr. v. Wolf, --- F. Supp. 3d ----, 2020 WL 5798269 (N.D. Cal. 2020). See supra. While that 4. Concerns With Changes Regarding I– and help such aliens obtain relief injunction is in effect, EOIR cannot charge a fee for quickly while similarly reducing the asylum applications in its proceedings. Further 589 Filing Requirements likelihood that those with non- discussion of the rule’s provisions regarding the a. 15-Day Filing Deadline in Asylum- meritorious claims will be able to requirement of aliens to pay a fee is below in and-Withholding-Only Proceedings remain in the United States for longer section II.c.4.d. 19 This rule only provides that ‘‘a fee must be i. General Opposition to the Deadline and substantial periods of time. It is in submitted if DHS requires one.’’ As DHS noted in the national interest and is consistent its final rule regarding a fee for an asylum Comment: The majority of with U.S. non-refoulement obligations application: ‘‘No fee would apply where an commenters expressed opposition to the that meritorious claims are granted as applicant submits a Form I–589 for the sole purpose 15-day deadline. Commenters asserted of seeking withholding of removal under INA quickly as possible while unwarranted section 241(b)(3), 8 U.S.C. 1231(b)(3), or protection that establishing a 15-day deadline claims are similarly screened out from removal under the regulations implementing would likely prevent legitimate claims expeditiously. U.S. obligations under Article 3 of the Convention from being submitted or would be too The Department disagrees with Against Torture and Other Cruel, Inhuman or short for legitimate claims to adequately Degrading Treatment or Punishment (CAT).’’ 85 FR comments that the rule’s requirement at 46793 n.17. As noted, supra, the DHS final rule be raised; thus commenters alleged that that the applicant must pay the required is currently enjoined and, thus, has not yet taken the rule would effectively end the U.S. fee, if any, for submitting a Form I–589 effect. asylum system and ensure deportations.

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Response: As an initial point, few, if delaying protection or relief for see also Make the Rd. New York, 962 any, commenters acknowledged that meritorious claims and increases the F.3d at 618. existing regulations have contained a likelihood that important evidence, Response: As an initial point, the 10-day application filing deadline for including personal recollections, may number of aliens who may be placed in many years for a particular category of degrade or be lost over time.’’). The asylum-and-withholding-only asylum seekers, with no noted Department believes that establishing proceedings is both speculative and opposition or complaints. 8 CFR this deadline, as well as availability of unpredictable because a precise chain of 1208.5(b)(1)(ii). Similarly, most an extension for good cause and the events has to occur—involving, inter commenters ignored or downplayed the retained ability to supplement or amend alia, international migration flows, the rule’s provision of an extension of the the application later in proceedings, possibility of the exercise of 15-day filing deadline for good cause will best facilitate those aims. See 8 CFR prosecutorial discretion, and legal without addressing why the possibility 1208.4(c), (d). determinations by adjudicators—in of such an extension would not respond Further, this deadline appropriately order to reach that result, and those to concerns about timing. Similarly, eliminates unnecessary delays in what events, both discretely and especially in most commenters asserted that the rule should be a streamlined proceeding, combination, cannot be predicted with required the submission of both an notwithstanding the possibility of an any degree of precision; moreover, application and all supporting extension for good cause in unusual several links in that chain are wholly documents with no further opportunity situations. Moreover, as discussed, outside the Department’s control. See to update or supplement it, but the rule supra, aliens subject to proceedings Home Box Office, Inc. v. FCC, 567 F.2d requires no such thing. The rule under 8 CFR 1208.2(c)(1) generally are 9, 35 n.58 (D.C. Cir. 1977) (per curiam) requires only the filing of an application detained, and the filing deadline is in (‘‘Moreover, comments which by a deadline and does not alter existing keeping with the instruction that themselves are purely speculative and provisions regarding the detained aliens should receive do not disclose the factual or policy supplementation of an existing ‘‘expedited consideration’’ of their basis on which they rest require no application. 8 CFR 1208.4(c); cf. Matter asylum claims. Id. response. There must be some basis for of Interiano-Rosa, 25 I&N Dec. 264 (BIA Moreover, commenters alleged that thinking a position taken in opposition 2010) (distinguishing between the establishing a 15-day deadline violated to the agency is true.’’). For example, submission of an application itself and the APA for various reasons, as has been under the recently-finalized joint rule, the later submission of supporting addressed at length, supra. See section Procedures for Asylum and Withholding documents). To the extent that II.C.4.a.iii for further discussion of Removal; Credible Fear and commenters ignored or misstated the regarding this issue. Reasonable Fear Review, signed by the actual provisions of the rule, otherwise Comment: Commenters expressed Attorney General and the Acting failed to engage with the safeguards general opposition to the 15-day Secretary of Homeland Security on provided by the rule, or conflated deadline in light of other regulatory December 2, 2020, the Department is different types of filings, the Department changes that commenters alleged would unable to accurately predict the future acknowledges such comments but drastically increase the number of aliens number of aliens who would enter or declines to adopt them based on such subject to the 15-day filing deadline by seek to enter the United States illegally, misapprehensions. increasing the number of aliens in be subjected to a credible fear screening Further, commenters’ hyperbolic asylum-and-withholding-only by DHS, receive a positive credible fear statements that the imposition of a filing proceedings. Commenters explained determination by either DHS or an deadline that is nevertheless subject to that these changes are contrary to the immigration judge, and, in turn, be extension somehow effectively small number of alien crewmembers placed into asylum-and-withholding- precludes asylum eligibility or prevents subject to the current 10-day filing only proceedings. Similarly, DHS has the filing of an asylum application are deadline, to which the Department autonomy over its own enforcement- without merit. Moreover, such compared the proposed rule. related decisions and is tasked by statements ignore the reality that those For example, commenters cited the Congress with ‘‘[e]stablishing national with meritorious claims typically want Department’s proposed joint rule with immigration enforcement policies and their claims heard as quickly as possible DHS, 85 FR 36264, which commenters priorities.’’ Homeland Security Act of to avoid evidence becoming stale and to explained would expand the number of 2002, Public Law 107–296, sec. 402(5), receive the benefits associated with aliens subject to asylum-only 116 Stat. 2135, 2178 (codified at 6 asylee status. The Department seeks to proceedings, would allow immigration U.S.C. 202(5)). Consequently, the continue extending protection and relief judges to pretermit asylum applications Department has neither control over nor to aliens with meritorious claims, but that failed to establish prima facie the means to predict how many aliens the realities of the size of EOIR’s claims for relief, and would expand the DHS may subject to expedited removal pending caseload and the continued definition of a ‘‘frivolous’’ claim. procedures as opposed to other increase in notices to appear filed in Commenters stated that the impact of enforcement options or the exercise of immigration court cannot be this rule and that proposed rule, if prosecutorial discretion. Thus, while understated. See EOIR, Adjudication implemented, would result in a massive the Department is aware that these other Statistics: Pending Cases, New Cases, amount of people subject to the new rules may have some impact on and Total Completions (Oct. 13, 2020), filing deadline. immigration proceedings relevant to this https://www.justice.gov/eoir/page/file/ Similarly, commenters asserted rule, the size and nature of that impact 1242166/download. Accordingly, as concerns that the Department failed to is speculative and unknowable because noted in the NPRM, this rule is designed consider the impact of DHS’s expansion of intervening factors, namely levels of to ensure that protection and relief is of expedited removal authority, which illegal immigration and DHS’s exercise not delayed for meritorious claims and commenters stated would further of its prosecutorial discretion authority. that evidence is preserved to the fullest increase the number of affected aliens. Moreover, even if that impact were extent possible. See 85 FR at 59696 See Designating Aliens for Expedited predictable, the Department has (‘‘[D]elaying filing of the claim risks Removal, 84 FR 35409 (July 23, 2019); determined, as a matter of policy, that

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the benefits of the rule—e.g., better obligations under the [CAT ] . . . and if immigration judges were subject to a effectuation of statutory directives, the they would not be in asylum-and- performance measure that was relevant expedited consideration of meritorious withholding-only proceedings if they to the rule, immigration judges are well asylum claims, and the elimination of had not already claimed a fear of aware that it is not appropriate to base provisions that are immaterial to EOIR— persecution or torture upon being continuance or extension decisions far outweigh any negative impacts that returned to their home countries.’’ The solely on case-completion goals. See, the rule would have, either singularly or Department subsequently concluded e.g., Matter of L–A–B–R–, 27 I&N Dec. in tandem with other rules. that because asylum and withholding of 405, 416–17 (A.G. 2018) (stating that it Moreover, assuming, arguendo, that removal are the ‘‘sole issues to be is inappropriate to base a decision on a other rules increase the number of resolved in the proceeding and are continuance request solely on case aliens subject to asylum-and- squarely presented at the outset of the completion goals). As discussed, supra, withholding proceedings under 8 CFR proceeding . . . there is no reason not commenters’ suggestions that 1208.2(c), the provisions of this rule to expect the alien to be prepared to immigration judges are biased or would remain important to effectuate. state his or her claim as quickly as incompetent and will either ignore As discussed, supra, aliens subject to possible.’’ 85 FR at 59694. In addition, applicable law or will make decisions proceedings under 8 CFR 1208.2(c) are the Department provided further on factors other than the record and the generally subject to detention unless reasoning for its decision to establish a law are not well-taken. The Department paroled by DHS. Both parties, especially deadline: Delayed filing risks delayed is confident that EOIR’s immigration in cases of aliens with meritorious protection or relief for meritorious judge corps adheres to the highest levels claims, and the immigration courts have claims; delayed filing increases the of professionalism and will continue to an interest in the expeditious likelihood that evidence may degrade or apply their independent judgment and consideration of asylum claims made by be lost; and applicants may simply discretion, 8 CFR 1003.10(b), when detained aliens. In fact, current delay proceedings, thus causing evaluating good cause in relation to regulations already provide for such inefficiencies in what should be a requests for extensions. Further, expedited consideration, 8 CFR streamlined proceeding. See id. The immigration judges regularly adjudicate 1208.5(a), and commenters did not Department also noted that a deadline requests for continuances as part of their explain why detained aliens should not was consistent with current regulations duties, and there is no reason to expect receive expedited consideration of their establishing a 10-day deadline for that any new requests as a result of this asylum claims nor challenge the detained crewmembers to file an asylum rule would exacerbate the time required application of 8 CFR 1208.5(a). In short, application, 8 CFR 1208.5(b)(1)(ii), and for adjudication of these motions. regardless of whether the rule is directing the agency to provide Comment: Multiple commenters considered alone or in conjunction with ‘‘expedited consideration’’ to asylum alleged that the extension for good cause other rules, it simply reaffirms the applications filed by detained aliens, 8 was limited to 10 days and disagreed importance of well-established CFR 1208.5(a). Id. None of these factors with a 10-day limit. principles, namely adhering to statutory relies upon or is altered based on the Response: Commenters misread the deadlines and providing expedited number of aliens subject to proceedings rule. The extension for good cause is not consideration of asylum claims for under 8 CFR 1208.2(c)(1).20 limited to 10 days; rather, the detained aliens, particularly for Comment: Commenters claimed the immigration judge in his or her meritorious claims. Commenters’ rule’s inclusion of the possibility of an discretion determines the length of the suggestions that the Department should extension of the filing period for good extension. depart from these principles are cause was disingenuous for several unpersuasive. reasons. First, commenters claimed that ii. 15 Days Is Too Short Furthermore, the Department’s case quotas and performance metrics (1) Evidence-Related Concerns reasoning for the 15-day deadline does would incentivize judges to deny not rely on or involve the number of requests for extensions. Second, Comment: Commenters asserted that a aliens who may be affected. In other commenters claimed that adjudicating 15-day deadline is an improper solution words, the proposed rule at 85 FR an extension request, which takes time to the Department’s evidence concerns 36264—nor the finalized rule, and effort from all parties involved, did because 15 days is insufficient to collect Procedures for Asylum and Withholding not align with the Department’s relevant evidence. Commenters of Removal; Credible Fear and purported aims of streamlining the explained that gathering evidence— Reasonable Fear Review, signed by the process. including declarations, corroborating Attorney General and the Acting Response: As an initial point, documents such as medical and police Secretary of Homeland Security on immigration judges are not subject to December 2, 2020—had no bearing on on three elements and a combined total of fourteen any performance metric related to the sub-elements. A non-supervisory immigration the reasoning underlying the deadline length of a case adjudication; thus, judge’s seven performance measures are one of six in the rule at hand. In the proposed rule, whether they would grant an extension sub-elements of one of three job elements. Although 85 FR at 59693–94, the Department or not would have no bearing on any one of the performance measures—i.e., one of seven explained that aliens in asylum-and- 21 sub-sub-elements of one of six sub-elements of one applicable performance measure. Even of three elements—is a case completion goal, the withholding-only proceedings are establishment of a filing deadline has little ‘‘generally already subject to removal 20 The Department notes, however, that to the correlation with how many cases an immigration orders, denials of applications for extent commenters argue more aliens will be in judge may ultimately complete. Moreover, the admission, or denials of permission to asylum-and-withholding-only proceedings and failure to meet any performance measure does not subject to the 15-day filing deadline in the future, automatically result in the lowering of an land in the case of crewmembers, and such arguments further the Department’s reasoning immigration judge’s performance rating. For are often also detained .... [T]heir rather than counter it. In other words, the instance, for the rating cycle that concluded at the only avenues for relief or protection are Department’s concerns to ensure efficiency, end of FY 2019, although not all non-supervisory applications for asylum, statutory accurate recall of claims, and avoiding immigration judges met the numeric performance gamesmanship are greater if more proceedings are measures, every non-supervisory immigration judge withholding of removal, and protection benefited than fewer. nevertheless received a performance rating of under the regulations issued pursuant to 21 Non-supervisory immigration judges are satisfactory for the job element encompassing those legislation implementing U.S. subject to a biannual performance work plan based measures.

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reports, letters from witnesses, country evidence to be submitted within 15 days extension for good cause—before being conditions documentation, and reports of the alien’s first hearing before the placed in proceedings under 8 CFR from expert witnesses—and then paying immigration judge. See 8 CFR 1208.4(d) 1208.2(c)(1)). Moreover, aliens in DHS for certain documents to be translated (‘‘[T]he immigration judge . . . shall set custody who express a desire to seek takes much longer than 15 days, a deadline of fifteen days from the date asylum or a fear of return are provided especially considering that evidence of the alien’s first hearing before an an asylum application at that time,24 may be located abroad or possessed by immigration judge by which the alien and that expression necessarily occurs a foreign government. must file an asylum application’’). The before an alien is placed in proceedings Commenters stated that the Department believes the 15-day under 8 CFR 1208.2(c)(1) or (2) and government should have an interest in deadline appropriately balances the before the alien’s first hearing is considering the complete facts of a concern regarding risk of degradation or subsequently scheduled. 8 CFR 208.5(a), claim. Commenters alleged, however, loss of evidence with the need to 1208.5(a). Thus, aliens will always have that immigration judges would not have provide adequate time for preparation had time beyond the 15-day deadline in all of the evidence before them for and the need to provide expedited order to complete the application, and consideration because (1) aliens would consideration of the claims of detained few, if any, commenters acknowledged be unable to submit evidence in such a aliens, especially those with meritorious this additional time in their opposition short timeframe, or (2) the short claims. to the rule. deadline would rush aliens and The Department notes that the 15-day Additionally, the aliens affected by inevitably cause contradictions or deadline begins from the date of the the 15-day filing deadline have omissions in the evidence, thereby alien’s first hearing with the necessarily already considered and creating unnecessary false credibility immigration judge, which may not made a claim for asylum or protection, issues. occur until several weeks after the alien either through the credible fear process Commenters explained that aliens was first encountered by DHS 22 and, in or when faced with removal or the who need or request more than 15 days some cases, until after the alien has denial of an application for admission are not trying to circumvent the already resided in the United States for under other provisions. Accordingly, immigration process; rather, those aliens an extended length of time.23 Thus, there is no reason to believe—and seek to engage in the legal immigration contrary to commenters’ suggestions, commenters did not provide one—that process by gathering all relevant aliens are not limited to a 15-day period such aliens cannot memorialize the information and evidence for their to prepare an application or to gather claim they recently made on an asylum claim, which commenters emphasized evidence, and many aliens will have application. To the contrary, the takes longer than 15 days. Further, had a considerably longer period of time Department expects that aliens with commenters explained that aliens who to prepare their claims. In fact, some meritorious claims will generally unnecessarily delay their proceedings aliens subject to the rule will have welcome the opportunity to have their accept the risk of degradation or loss of already filed an asylum application evidence. Commenters stated that such even before the 15-day deadline begins. 24 Although DHS does not have a duty to provide concern should incentivize aliens to act Compare 8 CFR 1208.2(c)(1)(i) (alien an asylum application to a detained alien pending efficiently but does not warrant a 15-day crewmembers subject to asylum-and- a credible fear determination, it may do so upon request. 8 CFR 208.5(a). Thus, aliens may be able deadline. withholding-only proceedings before an to obtain an asylum application even before a Response: As discussed, supra, immigration judge), with 8 CFR credible fear determination. Even in cases in which commenters either misread the rule or 1208.5(b)(1)(ii) (requiring an alien DHS does not provide an asylum application while misstated its contents. Nothing in the crewmember seeking asylum to file the a credible fear determination is pending, once a rule requires that all supporting detained alien receives a positive credible fear application with DHS first—and giving determination—and, thus, may become subject to evidence be submitted within 15 days. the alien ten days to do so, subject to an proceedings under 8 CFR 1208.2(c)(1)—DHS would Nothing in the rule precludes amending provide an application at that point consistent with or supplementing an application after it 22 As of October 23, 2020—and excluding aliens 8 CFR 208.5(a). Moreover, although it was not has been filed in accordance with detained in the Institutional Hearing Program and addressed by commenters, the Department notes that, in conjunction with DHS, it proposed a rule existing regulations. Further, nothing in the Migrant Protection Protocols program, detained aliens with competency issues, and detained UAC in June 2020 that was recently finalized, Procedures the rule requires an immigration judge in the custody of the Department of Health and for Asylum and Withholding of Removal; Credible to render a decision within 15 days or Human Services—the median time between the Fear and Reasonable Fear Review, signed by the to schedule a hearing at any particular issuance of a notice to appear for a detained alien Attorney General and the Acting Secretary of and the filing of a notice to appear with an Homeland Security on December 2, 2020, and—if time, subject to the general deadline immigration court is seven days, and the median it goes into effect, see note 12, supra—would contains in INA 208(d)(5)(A)(iii), 8 time between the receipt of a notice to appear for explicitly codify this requirement and ensure that U.S.C. 1158(d)(5)(A)(iii). a detained alien and that alien’s first hearing is it applies to aliens in detention following the Similarly, commenters did not sixteen days. Thus, detained aliens will, on average, receipt of a positive credible fear determination. 85 have 23 days before the 15-day deadline even FR at 36267 (‘‘Additionally, to ensure that these address why aliens in proceedings begins to run, and commenters did not persuasively claims [i.e., asylum claims by aliens who have under 8 CFR 1208.2(c)(1), who are the explain why 38 days, which is more than five received a positive credible determination and are one of the subjects of the rule, should weeks and may be extended due to good cause, is subject to proceedings under 8 CFR 1208.2(c)(1)] not receive expedited consideration of an insufficient amount of time for an alien to file receive the most expeditious consideration an asylum application, especially for an alien who reasonably possible, the Departments propose to their asylum claims because they are has recently made a claim of a fear of return to his amend 8 CFR 208.5 and 8 CFR 1208.5 to require detained. The rule ensures that such or her country of nationality. DHS to make available appropriate applications and aliens receive expedited consideration 23 For example, aliens who have overstayed an relevant warnings to aliens in its custody who have of their applications consistent with authorized period of admission under the Visa expressed a fear in the expedited removal process Waiver Program (VWP) and later seek asylum under and received a positive determination.’’). In short, existing regulations, 8 CFR 1208.5(a), 8 CFR 1208.2(c)(1)(iv) may have already spent years all detained aliens subject to proceedings under 8 but it does not alter an alien’s ability to in the United States prior to applying for asylum CFR 1208.2(c)(1) will have already received an submit evidence in support of an and, thus, will have already had ample time to asylum application before those proceedings application. prepare their case. See, e.g., Matter of D–M–C–P–, commence and before the first hearing is even The rule does not limit evidence- 26 I&N Dec. 644, 644–45 (BIA 2015) (alien admitted scheduled. Thus, aliens subject to the rule will under the VWP in 1999 but did not make an asylum actually receive more than 15 days to file an asylum gathering to 15 days; rather, it requires claim in proceedings under 8 CFR 1208.2(c)(1) until application, even without an extension under 8 CFR the application and available supporting 2011). 1208.4(d).

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claims heard expeditiously by an later in the proceedings due to Response: As an initial point, the immigration judge so that they may evidence-issues, the alien may request Department notes that filing delays and obtain protection and the benefits of to amend or supplement the missing filing deadlines due to third- asylum as quickly as possible. application. 8 CFR 1208.4(c). Similarly, party carriers such as the USPS are The Department again emphasizes nothing in the rule prohibits an already a possibility in the current that the alien may also seek an immigration judge from granting a system for considering asylum extension of the filing deadline for good continuance to obtain corroborating applications, and the rule does not alter cause. 8 CFR 1208.4(d). Thus, in evidence in appropriate cases. Matter of that risk. The Department is also appropriate circumstances, an alien may L–A–C–, 26 I&N Dec. 516 (BIA 2015). unaware of any systemic issues with receive an extension of the deadline in Moreover, the rule itself provides that third-party carriers delaying filings, and which to file an application, obviating immigration judges themselves may any isolated anecdotal instances the concerns connected to many of the submit relevant evidence consistent identified by commenters are hypothetical scenarios raised by with their duty to develop the record in redressable through existing procedures commenters. appropriate circumstances. Through such as a motion to accept an untimely The Department also reiterates that these mechanisms, the Department filing. Immigration Court Practice aliens may amend or supplement the provides aliens a full opportunity to Manual, ch. 3.1(d)(ii), (iii) (July 2, 2020). application later in proceedings, present all relevant facts to an Moreover, as discussed supra, most pursuant to an immigration judge’s immigration judge within the deadline, aliens subject to the filing deadline will discretion. Accordingly, aliens and and there is no reason why the be detained. Because detained hearings counsel are welcome to begin gathering establishment of a filing deadline for the are generally expedited, there is a evidence, including translating or application—as opposed to supporting greater possibility that the alien will be coordinating delivery of certain documents—would necessarily create a able to file the application directly with documents as referenced by credibility issue for the alien. the court and, thus, not need to rely on commenters, at any time and, subject to Although the rule referenced the an outside carrier. Nevertheless, even in any separate filing deadlines set by the possibility that, without a deadline, cases in which there is a legitimate immigration judge, may submit aliens may attempt to delay carrier delay, nothing in the rule additional supporting evidence as it proceedings, the Department does not precludes an alien from filing either a becomes available. believe that is the case for all aliens, nor motion to accept the untimely filing, id., The Department also notes that an did the rule exclusively consider or rely alien’s testimony alone ‘‘may be or an extension of the filing deadline, 8 on that point in establishing the CFR 1204.8(d). sufficient to sustain the applicant’s deadline. For the reasons discussed In addition, the Department burden without corroboration, but only above and in section II.C.4.a.iii, the emphasizes that an alien may begin the if the applicant satisfies the trier of fact Department established the deadline application at any time. The 15-day that the applicant’s testimony is and believes 15 days is an appropriate deadline is merely 15 days from the date credible, is persuasive, and refers to timeframe in which an alien must file specific facts sufficient to demonstrate an application. The Department of the first hearing with the immigration that the applicant is a refugee.’’ INA disagrees with the commenters’ judge; thus, aliens are not prohibited 208(b)(1)(B)(ii), 8 U.S.C. conclusion that evidence-related risks from beginning an application prior to 1158(b)(1)(B)(ii). Thus, particularly for should simply incentivize aliens to the first hearing, nor are they limited to meritorious claims, an alien may not reduce delays or else accept those risks. only a single 15-day period to gather need extensive documentation to The impact of delayed proceedings evidence. As noted above, detained support his or her claim because an reaches far beyond the alien’s case; aliens will have already a copy of an alien can meet the relevant burden of delays result in inefficiencies that affect asylum application from DHS prior to proof through credible, persuasive, and the entire immigration system. See their first hearing before an immigration specific testimony. Commenters did not generally 85 FR at 59694. In part for that judge and, thus, will have had already explain why aliens who would testify reason, the rule established the 15-day more than 15 days to complete the credibly, persuasively, and specifically deadline rather than rely on aliens application even without an extension. would need lengthy amounts of time to responding to incentives or accepting The Department is unaware of any file an application or to obtain the risks associated with delays. practice by DHS of routinely seizing supporting documentation, and the documents from aliens at the border and Department is unaware of any such (2) Events Outside of the Alien’s Control failing to maintain or to return them, as reasons. Comment: Commenters argued that appropriate. In the Department’s The deadline itself does not preclude the 15-day filing deadline is too short in experience, any documents seized from an immigration judge’s full effect due to various circumstances aliens that are not returned are consideration of the facts of a claim. outside of the alien’s control that may maintained in DHS’s administrative file Because applicants for asylum and for preclude submission of the application on the alien and are available to the withholding of removal bear the full within the required time period. DHS attorney representing the agency burden of proof, see INA 240(c)(4)(A), 8 Commenters explained that the U.S. before the immigration judge. U.S.C. 1229a(c)(4)(A) (asylum); INA Postal Service (‘‘USPS’’) or other Mechanisms for DHS to return 241(b)(3)(C), 8 U.S.C. 1231(b)(3)(C) carriers may be delayed. Relatedly, documents to aliens in custody are (withholding of removal), the alien is commenters said that aliens’ documents substantially beyond the scope of the responsible for ensuring that the may have been lost or stolen in transit rule. Nevertheless, as officers of the immigration judge has all relevant facts to the United States. court with an interest in justice in all to consider. If, for example, an alien Some commenters also alleged that immigration proceedings, the needs additional time to file an DHS would seize documents at the Department expects that DHS attorneys application, the alien may request an border, such that aliens would no longer would submit any probative evidence in extension for good cause. 8 CFR have them in their possession to include DHS’s possession in the course of a 1208.4(d). Likewise, if the application with an application for protection or proceeding under 8 CFR 1208.2(c)(1) or needs to be amended or supplemented relief. (2) and would ensure that no

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misrepresentations are made to an appropriate, requesting an extension of first hearing before the immigration immigration judge. the filing deadline. EOIR, Current judge. An alien is not precluded from Comment: Commenters explained that Representation Rates (Oct. 13, 2020), beginning the application or seeking it usually takes USCIS three to five https://www.justice.gov/eoir/page/file/ assistance from counsel, an interpreter, weeks to issue the receipt that the rule 1062991/download. or a translator to prepare the application requires be attached to a ‘‘complete’’ As discussed, supra, in practice, before the first hearing. application; thus, submitting a complete aliens subject to the rule will have application within 15 days is impossible (4) Concerns Related to Aliens’ Personal additional time beyond 15 days to Circumstances and Challenges and outside of a practitioner’s or alien’s complete an asylum application, even control. without an extension, and the Comment: Commenters also Response: The Department Department disagrees with commenters explained that aliens often have limited acknowledges the commenters’ that the Form I–589 is too complex for financial resources, are usually concerns regarding timing with USCIS aliens to complete within weeks. The uneducated or even illiterate, have to receive a fee receipt, although in the substantive portion of the Form I–589 is experienced trauma, and are in need of Department’s experience, USCIS currently eight pages, half of which call mental health resources. Considering typically provides a one-day turnaround for biographic information and half of those facts, commenters explained that in issuing fee receipts and most receipts which request information about the 15 days was especially insufficient to are issued within seven days. Moreover, alien’s claim.25 Tens of thousands of secure representation or complete the USCIS allows electronic payment for aliens—and hundreds of thousands in form on their own, let alone pay the some of its most common applications, recent years, EOIR, Total Asylum filing fee. USCIS, Forms Available to File Online Applications (Oct. 13, 2020), https:// Response: For many of the same reasons noted above, the Department (June 11, 2020), https://www.uscis.gov/ www.justice.gov/eoir/page/file/1106366/ finds these concerns to be both gross file-online/forms-available-to-file- download—whose first language is not generalizations and unpersuasive. The online, and the Department does not English file for asylum every year, and Department does not have data—and know whether USCIS intends to allow there is simply no indication that commenters did not provide any—and, electronic payment for asylum applicants cannot complete the thus, declines to agree with a blanket applications if the injunction on application and file it within a few characterization that most aliens charging a fee is lifted. Nevertheless, in weeks.26 In short, although the applying for asylum are illiterate or in response to commenters’ concerns, the Department acknowledges the need of mental health treatment. Department has amended 8 CFR commenters’ concerns and has fully 1208.4(d) and related cross-references to Further, commenters raising these considered, they are ultimately issues did not engage with, inter alia, that regulation to allow for submission unpersuasive. of alternative proof of payment in the the existence of a longstanding 10-day The Department believes the 15-day event that an alien has not received a fee deadline for filing an asylum deadline provides sufficient time for the receipt from USCIS within the filing application for a particular category of alien, in coordination with counsel, an deadline. See section I.C.1 for further applicants, 8 CFR 1208.5(b); the interpreter, or translator if the alien so discussion regarding this change. availability of an extension of the 15- chooses, to apply for relief, particularly day deadline for good cause; the fact (3) Concerns Related to the Complexity because the actual deadline will be that most aliens applying for asylum are of the Form I–589 more than 15 days in practice and represented; the fact that all aliens Comment: Commenters argued that because an alien may request an subject to the rule will, in reality, have the 15-day filing deadline is too short extension as appropriate. Further, the more than 15 days to file the due to the complexity of the Form I–589 Department reiterates that the 15-day application; the demonstrated ability of and most applicants’ lack of English- timeframe begins from the date of the approximately 200,000 aliens to file for language proficiency. Commenters 25 asylum in FY 2019 and FY 2020; the explained that aliens must usually find If the recent joint rulemaking, Procedures for Asylum and Withholding of Removal; Credible Fear desire of aliens with meritorious claims a translator, interpreter, and counsel to and Reasonable Fear Review, signed by the to have those claims adjudicated fill out the form and prepare certain Attorney General and the Acting Secretary of quickly; the longstanding regulatory documents. Commenters alleged that Homeland Security on December 2, 2020, goes into directive to complete asylum cases of this process often takes weeks but that effect, the substantive portion of the Form I–589 will increase to thirteen pages, though only nine of detained aliens expeditiously; and, the such assistance is crucial. those pages call for information about an alien’s risks associated with needless delays in Response: Again, the Department claim. asylum adjudications, including the notes that regulations have contained a 26 The Department also notes there is a plethora degradation of evidence. To the extent 10-day application filing deadline for of information regarding asylum available to aliens in multiple languages from pro bono or nonprofit that commenters posited hypothetical many years for a particular category of organizations or from international organizations. scenarios about particular asylum seekers, with no noted For example, the UNHCR maintains a Spanish- characteristics of aliens, the Department opposition or complaints, including language translation of the instructions for the Form notes that if such scenarios are reflected concerns about the complexity of the I–589, https://www.unhcr.org/585ae89c4.pdf (last visited Dec. 4, 2020), and multiple advocacy by actual applicants, then the form or its requirement to be completed organizations within the United States, including immigration judge can consider whether in English. 8 CFR 1208.5(b)(1)(ii). ones affiliated with commenters opposing the rule, any of the factors referenced by the Further, as discussed above, the rule have created Spanish-language versions of the form commenters warrant an extension of the provides an alien an opportunity to itself, e.g., Immigration Justice Campaign, I–589 in filing deadline. request an extension of the deadline if Spanish, https://immigrationjustice.us/get-trained/ asylum/application-declaration-evidence/sample-i- (5) Concerns That the Deadline Is Too the alien needs additional time to 589-in-spanish/ (last visited Oct. 31, 2020). complete the form. Additionally, most Although non-English versions of the I–589 are not Short for Preparation by Counsel aliens with pending asylum cases, 85 official, they reflect a much greater availability of Comment: Commenters explained that information to asylum seekers in languages other percent, have representation, and an than English—and thus a greater capacity to even if an alien was able to timely hire alien’s representative can assist with complete the form in a timely manner—than most counsel, counsel would need more than completing the application or, as commenters acknowledged. 15 days to prepare and submit the

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application. Commenters provided the filing deadline as appropriate, and organizations and pro bono volunteers, examples of common challenges faced the alien may supplement the including clinics and law students, to by counsel when working with detained application consistent with existing assist aliens with their applications in aliens, which they claimed have only regulations. To the extent that an effort to reduce the likelihood that been exacerbated by the pandemic. commenters raise concerns that COVID– applications would be rejected. Examples include: Difficulty in 19 has created or exacerbated logistical Commenters specifically asserted that arranging meetings with aliens at challenges for representatives, the the deadline would interfere with local detention centers, especially with Department notes that cases of detained government investments into funding pandemic-related restrictions on aliens, such as those who are subject to legal service providers, specifically such visitors; difficulty in securing the rule, have generally been heard providers’ case management processes. interpreters; and gathering evidence. during the pandemic to avoid raising Relatedly, commenters explained that Many commenters explained that significant questions about prolonged the deadline would require nonprofit representation made a significant detention and that DHS has made organizations and clinics to difference to the likelihood of aliens’ arrangements to ensure unimpeded substantially change their operations success. communications between aliens and and would limit the number of aliens Commenters also stated that the 15- representatives. See, e.g., Nat’l they could assist. For example, because day period is too short of a time period Immigration Project of Nat’l Lawyers students working in law clinics take a to prepare a sufficient application that Guild v. Exec. Office for Immigration full course load in addition to taking a is sufficiently thorough to meet the Review, 456 F. Supp. 3d 16, 22–23 pro bono case, commenters explained higher burden of proof required for (D.D.C. 2020) (summarizing DHS actions that they would be unable to devote the success on the application as opposed to taken to ensure communication between hours necessary to meet the 15-day the lower standard for credible fear detained aliens and representatives deadline, thus preventing them from reviews. Commenters explained that the continue during the outbreak of COVID– taking cases, which in turn would harm rule failed to acknowledge the 19). In isolated instances in which aliens who rely on such assistance. difference between the burden of communication between a Response: For all of the reasons proving ‘‘significant possibility’’ of representative and a detained alien has previously given—including, inter alia, succeeding on an asylum claim required been interrupted due to COVID–19, the the existence of a longstanding 10-day to establish credible fear and the burden Department reiterates that the rule deadline for a particular category of of proving every element of an asylum provides for an extension for good asylum applicants with no noted effects claim under Matter of A–C–A–A–, 28 cause, 8 CFR 1208.4(d). I&N Dec. 84 (A.G. 2020). Relatedly, The Department did not conflate the on low cost or pro bono representation, other commenters claimed the rule’s burdens of proof in credible fear the similar longstanding existence of reasoning that ‘‘there is no reason not to interviews and the merits of asylum immigration judge authority to set expect the alien to be prepared to state adjudications. The Department deadlines for filing applications for his or her claim as quickly as possible,’’ recognizes the distinction between the relief, the availability of an extension of 85 FR at 59694, improperly conflated burdens of proof in the interview and the 15-day deadline for good cause, the the significant possibility standard used the hearing but believes the rule’s desire of aliens with meritorious claims in the credible fear interview with the timeframe is sufficient for aliens to file to have those claims adjudicated preponderance of the evidence standard their application and meet the requisite quickly, the longstanding regulatory used at the hearing. Commenters burden of proof. See INA 240(c)(4)(a), 8 directive to complete asylum cases of explained that the distinction between U.S.C. 1229a(c)(4)(A) (burden of proof detained aliens expeditiously, and, the these standards—one imposing a for asylum); INA 241(b)(3)(C), 8 U.S.C. risks associated with needless delays in reduced burden while the other 1231(b)(3)(C) (burden of proof for asylum adjudications, including the imposed a greater burden that requires withholding of removal). The degradation of evidence—the a fully developed record to satisfy all Department referenced the interview in Department believes that a general 15- elements of the claim—demonstrates the proposed rule simply to demonstrate day filing period, while providing for that aliens who satisfy the lesser burden that aliens who pass the credible fear exceptions where the immigration judge are not necessarily ready to satisfy the interview are on notice of their finds good cause, strikes the appropriate greater burden in such a short eligibility for various forms of relief or balance between expediency and timeframe. In short, given the increased protection, that such aliens would fairness and would not impact the burden of proof, commenters stated that logically be expected to want to perfect availability of low cost or pro bono 15 days would be far too short to an application for asylum and soon as representation. To the contrary, prepare the application, despite the possible thereafter, and that it is not ensuring that detained aliens file an alien having met the lesser burden of unreasonable to expect an alien who has asylum application expeditiously may proof in the credible fear interview. passed a credible fear screening to be help ensure that a law school clinic can Response: Again, commenters either anticipating and preparing for assist the alien before a student misread or affirmatively misstated the consideration of their ultimate completes the clinical course or contents of the rule. Nothing in the rule application for asylum, including the graduates. Cf. Registry for Attorneys and limits the alien, or the alien’s preparation of their application and Representatives, 78 FR 19400, 19404 representative, to a single 15-day period gathering of evidence, especially if the (Apr. 1, 2013) (declining to require law to prepare the application; rather, the alien’s claim is meritorious. students to register with EOIR due to, application must be submitted within among other things, ‘‘the transient 15 days of the alien’s first hearing before (6) The 15-Day Filing Deadline Will nature of law students’ participation in the immigration judge. Thus, the alien Limit the Availability of Low Cost or clinical programs and the limited will have more than 15 days to prepare Pro Bono Legal Services circumstances under which students the application, an alien or the alien’s Comment: Commenters alleged that can represent individuals before EOIR representative may begin to prepare the the 15-day deadline would put undue .... the absence of any mechanism to application or gather evidence at any pressure on services funded by local inform EOIR when a student leaves a time, the alien may seek an extension of governments, as well as nonprofit program . . . [and the lack of a]

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regulatory provision permitting a law establish the 15-day deadline. Although (emphasis added). The Department student to appear before EOIR if not the Department acknowledges that believes that establishing a deadline enrolled in a ‘legal aid program or nonprofit organizations, pro bono will better provide expedited clinic,’ [making] it . . . problematic for volunteers, and government-funded consideration for aliens described in 8 those students to remain registered after representatives, like all legal CFR 1208.2(c)(1) and 1208.4(b)(3)(ii). leaving a clinical program’’). Similarly, representatives, may face unforeseen Second, and relatedly, EOIR has had a because lengthy delays in immigration challenges confronting deadlines set by longstanding policy of allowing asylum proceedings often dissuade pro bono a judge, the Department is confident merits hearings for detained aliens to be representation, ensuring expeditious that such representatives will be able to scheduled within 14 days of a master consideration of asylum applications handle such deadlines, just as they do calendar hearing with no noted filed by detained aliens may encourage in other courts and just as they handle objections or problems with that policy. more pro bono representation. See, e.g., all regulatory changes inherent across See, e.g., EOIR Operating Policies and HRF Report supra. To the extent that government agencies, and will continue Procedures Memorandum (‘‘OPPM’’) commenters posited hypothetical to be able to provide assistance and 00–01, Asylum Request Processing at 8 scenarios about particular low cost or resources to aliens in proceedings before (Aug. 4, 2000) (‘‘Generally, when setting pro bono service providers or particular EOIR. a case from the Master Calendar to the types of aliens, the Department notes Finally, the Department notes that Individual Calendar, a minimum of 14 that if such scenarios are reflected by nothing in the rule prohibits nonprofits, days should be allowed before the case actual applicants, then the immigration pro bono groups, local government- is set for the Individual Calendar.’’); judge can consider whether any of the funded representatives, or any other EOIR OPPM 13–03, Guidelines for factors referenced by the commenters class of representatives from taking on Implementation of the ABT Settlement warrant an extension of the filing an alien’s case at a later point in the Agreement at 6 (Dec. 2, 2013) deadline. proceedings. An alien who obtains (‘‘Generally, when setting a detained Further, nothing in this rule requires counsel may choose a representative at [asylum] case from a master calendar the diversion of resources or alteration any point in the proceedings, including hearing to an individual calendar of the mission of any low cost and pro after the filing of an application, and the hearing, a minimum of 14 days should bono legal service providers, including ability to provide representation does be allowed.’’).27 Because—for over two nonprofit organizations, pro bono not require assistance from the very first decades with no noted challenge—the volunteers, clinics and law students, hearing. Thus, low cost or pro bono Department has found two weeks a and government-funded representatives, organizations, local government-funded potentially sufficient amount of time to beyond what is already required by representatives, and law school clinics prepare a case for a merits hearing on existing regulations and professional realistically have more opportunities to a detained alien’s asylum application, it responsibility requirements. In other provide assistance that many finds that 15 days is similarly a words, immigration judges already commenters suggested. sufficient time to simply file the possess the authority to set application application, particularly because, as filing deadlines, 8 CFR 1003.31(c), and iii. 15-Day Deadline Is Arbitrary discussed, supra, the alien will actually asylum cases of detained aliens are (1) In General receive more than 15 days to do so. already subject to expeditious Third, in determining an appropriate processing, 8 CFR 1208.5(a). Further, Comment: Commenters generally deadline, the Department considered practitioners are already prohibited characterized the 15-day deadline as the current regulation establishing a 10- from taking on more work than they can being arbitrarily short. Commenters day deadline for detained crewmembers handle competently. 8 CFR expressed concern that the Department to file an application for asylum. 8 CFR 1003.102(q)(1). Thus, pro bono failed to include specific data regarding 1208.5(b)(1)(ii). Because detained organizations already operate under the the selection of 15 days as the specific crewmembers are listed in the conditions outlined in this rule, and deadline for filing an asylum regulation at 8 CFR 1208.2(c)(1) as a commenters did not identify any application in asylum-and-withholding- class of aliens subject to asylum-and- changes that the rule itself would only proceedings rather than some other withholding-only proceedings, the require that are independent of period of time. Commenters alleged that Department determined it was longstanding and well-established the Department’s reasoning for the appropriate to set a comparable regulatory requirements. deadline conflated efficiency with deadline for other classes of aliens Furthermore, the Department believes speed. subject to asylum-and-withholding-only that low cost and pro bono legal service Commenters also stated that the proceedings included in 8 CFR providers, including nonprofit deadline was arbitrary because the 1208.2(c)(1), as well as aliens subject to organizations, pro bono volunteers, Department’s reasoning was flawed: withholding-only proceedings under 8 including clinics and law students, and Commenters stated the application CFR 1208.2(c)(2). government-funded representatives, can process and the adjudication process Regarding commenters’ concerns meet this deadline, absent situations in were distinct from one another with about the lack of supporting data, the which the deadline may be extended for separate time periods. Thus, Department notes first that because each good cause. Given the alien’s already- commenters alleged that changing the asylum application is adjudicated on a limited available avenues for relief, the time limit for the application process case-by-case basis and each application common goal of providing relief or would not affect the separate period of will vary accordingly in its facts and protection to aliens with meritorious time required for adjudication. support, there is no common metric for claims as quickly as possible, and the Response: The Department disagrees determining how long it will typically risk of loss or degradation of evidence that the 15-day deadline is arbitrary, with the passing of time—none of which unrealistic, or unjust. First, the current 27 Although OPPM 13–03 has been rescinded were challenged by commenters, regulation at 8 CFR 1208.5(a) directs because the ABT Settlement Agreement expired in including low cost and pro bono that ‘‘[w]here possible, expedited 2019, EOIR maintains a policy of providing at least 14 days between a master calendar hearing and an organizations themselves—the consideration shall be given to individual hearing on an asylum application for Department believes it is prudent to applications of detained aliens’’ detained aliens.

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take an alien to fill out and submit a affected—those in asylum-and- automated system to determine when Form I–589 because there is not a withholding-only proceedings—are (1) they can file. ‘‘typical’’ asylum case. Thus, the data already subject to removal orders, In a similar vein, commenters suggested by commenters is not denied applications for admission, or, surmised that the Department-facilitated available and is untraceable due to the for crewmembers, denied permission to general Legal Orientation Program inherently fact-specific nature of each land; (2) generally detained; and (3) (‘‘LOP’’) would be unable to meet alien’s case. Moreover, commenters did not solely limited to claims for asylum and needs from the 15-day deadline. Citing suggest that such data was available or withholding of removal, which are to the LOP Cohort Analysis Phase II could be obtained. To the extent that the presented at the outset of the study,29 commenters emphasized that PRA, 44 U.S.C. 3501 et seq., offers data proceeding. See 85 FR at 59694. Given 24% of participants failed to receive any and a potential metric for completing the unique position of these aliens, the services until after their first hearing, and submitting an asylum application, Department concluded there was ‘‘no while participants who received the Department notes that—in contrast reason not to expect the alien to be services prior to their first hearing to commenters’ concerns—it supports prepared to state his or her claim as received services on average only seven an even quicker deadline than that quickly as possible,’’ thereby enabling days prior to the hearing. proposed by the Department. See Form timely provision of relief or protection Some commenters stated that the 15- I–589 Instructions at 14 (Aug. 25, 2020), for meritorious claims. Id. The rule also day deadline was arbitrary because https://www.uscis.gov/sites/default/ noted that delaying proceedings risked backlogs in the immigration courts files/document/forms/i-589instr.pdf degradation or loss of evidence, which would preclude review of such (providing a response time of 12 hours, could affect adjudication of the claim. applications for months or years. ‘‘including the time for reviewing The Department recognizes that the Commenters stated that the rule failed instructions, and completing and deadline for filing the application is to address the inefficiencies caused by submitting the form’’).28 As discussed, distinct from the general 180-day the Department itself, such as hiring the provision of the rule setting a deadline for adjudicating the new immigration judges without hiring deadline follows from well-established application established by INA support staff, restricting immigration comparable regulations or policies and 208(d)(5)(A)(iii), 8 U.S.C. judges’ ability to manage their dockets, is not intended to turn on data. 1158(d)(5)(A)(iii), and the rule as a and shifting prioritization of particular Nevertheless, even if it were, the best whole addresses both the filing deadline dockets. available data regarding the time it takes and the adjudication deadline. Finally, Response: As an initial point, many to complete the Form I–589—i.e., the the Department notes that the rule does commenters failed to apprehend that PRA determination—supports the not conflate an interest in efficiency most aliens subject to the rule will be deadline chosen by the Department. with pure speed, as commenters detained. Consequently, DHS is unlikely Additionally, the Department claimed. As discussed throughout, the to wait over a year to file a charging emphasizes that the deadline is an rule is rooted in concerns about the document, cf. 8 CFR 287.3(d) (except in exercise of the Attorney General’s expeditious consideration of claims an emergency or exceptional statutory authority and judgement to made by detained aliens, the need to circumstance DHS will determine ‘‘establish such regulations, prescribe ensure meritorious claims are within 48 hours of detention whether to such forms of bond, reports, entries, and adjudicated as swiftly as possible, the file an NTA), and EOIR is unlikely to other papers, issue such instructions, risk of evidence becoming stale, and the wait six months to a year to schedule a review such administrative expectation that aliens who have hearing, EOIR Policy Memorandum 20– determinations in immigration recently claimed a fear of persecution or 07, Case Management and Docketing proceedings, delegate such authority, torture will be well-situated to perfect Practices at 2 (Jan. 31, 2020) (detained and perform such other acts as the that claim quickly through the filing of cases should be entered into EOIR’s case Attorney General determines to be an asylum application. In short, the management system within three days necessary for carrying out this section.’’ Department—as well as asylum of filing the charging document), INA 103(g)(2), 8 U.S.C. 1103(g)(2). applicants and DHS—has a strong https://www.justice.gov/eoir/page/file/ Congress acknowledged that there may interest in adjudicating cases 1242501/download. Similarly, detained be instances in which the Attorney expeditiously, particularly cases of valid aliens are unlikely to need to check the General may have to act in order to claims for asylum, and the rule does not automated case system to determine effectuate the statutory scheme. And, simply make proceedings more efficient when to file an application.30 given the statute’s silence on a filing for the sake of speed alone. This rule does not purport to address timeframe for aliens in asylum-and- (2) Arbitrary Because the Deadline every inefficiency in the U.S. withholding-only proceedings, the Demands Expediency Not Followed by immigration system. The 15-day filing Department presumes Congress the Government Itself deadline instead is designed to increase intended for the Attorney General to one efficiency in asylum-and- determine such timeframe as necessary. Comment: Some commenters alleged In drafting the rule, the Department that the rule creates an arbitrary withholding-only proceedings—the considered that the particular aliens deadline because it demands timeframe for aliens in such expediency that commenters alleged proceedings to file an application for 28 If the recent joint rulemaking, Procedures for EOIR and DHS do not follow. Asylum and Withholding of Removal; Credible Fear Commenters alleged that DHS routinely 29 See Executive Office for Immigration Review, and Reasonable Fear Review, signed by the fails to file notices to appear (‘‘NTA’’) LOP Cohort Analysis: Phase II (Jan. 29, 2019), Attorney General and the Acting Secretary of https://www.justice.gov/eoir/file/1125621/ Homeland Security on December 2, 2020, goes into with EOIR for more than a year. download. effect, the response time for the Form I–589 will Likewise, commenters alleged that it 30 Even if an alien is not detained, he or she increase to 18.5 hours. That length of time to takes EOIR six months to a year to would not need to check the automated case system complete the application would still support the schedule a hearing. Commenters to determine when to file. The rule clearly states Department’s position that between 15 and 38 that the application deadline is 15 days after the days—if not longer based on extensions due to good explained that these delays by EOIR and first hearing, which the alien will have attended. cause—is sufficient time to complete the Form I– DHS impose an unreasonable burden on Thus, an alien will always know when the 589. See also note 22, supra. aliens to constantly check the application is due.

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protection or relief.31 As explained noted this increase is contrary to the generally subject to detention unless above, that timeframe is not arbitrary; small number of alien crewmembers paroled by DHS. Both parties, especially rather, it was promulgated to address a subject to the current 10-day filing in cases of aliens with meritorious number of the Department’s concerns. deadline, to which the Department claims, and the immigration courts have See generally 85 FR at 59693–94. Thus, compares the proposed rule. an interest in the expeditious the commenters’ concerns with other Response: As discussed, supra, the consideration of asylum claims made by inefficiencies at DHS and EOIR, number of aliens who may be placed in detained aliens. In fact, current including the automated system and the asylum-and-withholding-only regulations already provide for such LOP,32 are outside the scope of this proceedings and, thus, subject to the expedited consideration, 8 CFR particular rulemaking. deadline established by the rule is 1208.5(a), and commenters did not The Department disagrees with speculative, unpredictable, and explain why it would be arbitrary and commenters’ allegation that the rule is ultimately wholly outside the capricious for detained aliens to receive arbitrary because the backlog would Department’s control. See Home Box expedited consideration of their asylum nonetheless delay hearings for such Office, 567 F.2d at 35 n.58 (‘‘Moreover, claims consistent with existing applications. Again, commenters comments which themselves are purely regulations. The rule simply reaffirms generally did not apprehend that the speculative and do not disclose the the importance of well-established rule will apply principally to detained factual or policy basis on which they principles, namely adhering to statutory aliens, whose cases are generally rest require no response.’’). The deadlines and providing expedited adjudicated within 180 days already, Department is unable to accurately or consideration of asylum claims for EOIR, Median Completion Times for precisely predict the future number of detained aliens, especially meritorious Detained Cases (Oct. 23, 2019), https:// aliens who would both enter or seek to claims. Such re-affirmation is not www.justice.gov/eoir/page/file/1163621/ enter the United States illegally and, in arbitrary and capricious. download, and do not constitute a turn, be placed into asylum-and- Furthermore, the Department’s backlog. Because detained cases are withholding-only proceedings following reasoning for the 15-day deadline does already subject to expeditious a positive credible fear or reasonable not rely on or involve the number of consideration, 8 CFR 1208.5(a), the rule fear interview; further, commenters did aliens who may be affected. In other should not create new delays, contrary not offer a prediction, apart from words, the proposed rule at 85 FR to commenters’ assertions. unsupported generalizations. Similarly, 36264, and the recently-finalized rule, DHS has autonomy over its own (3) Arbitrary Because the Rule Failed To enforcement-related decisions and is had no bearing on the reasoning Analyze Certain Impacts of the Rule statutorily tasked by Congress with underlying the deadline in the rule at Comment: Commenters asserted that ‘‘[e]stablishing national immigration hand. In the proposed rule, 85 FR at the rule was arbitrary because it failed enforcement policies and priorities.’’ 59693–94, the Department explained to analyze the impact of other proposed Homeland Security Act of 2002, Public that aliens in asylum-and-withholding- or enacted regulatory changes that Law 107–296, section 402(5), 116 Stat. only proceedings are ‘‘generally already commenters explained would increase 2135, 2178 (codified at 6 U.S.C. 202(5)). subject to removal orders, denials of the number of aliens subject to the 15- Consequently, the Department has applications for admission, or denials of day filing deadline.33 Commenters neither control over nor the means to permission to land in the case of predict how many aliens DHS may crewmembers, and are often also 31 In recent rulemakings, the Department has subject to expedited removal procedures detained .... [T]heir only avenues for sought, in part, to reduce various inefficiencies as opposed to other enforcement options relief or protection are applications for throughout the immigration system. See, e.g., asylum, statutory withholding of Appellate Procedures and Decisional Finality in or the exercise of prosecutorial Immigration Proceedings; Administrative Closure, discretion. Thus, while the Department removal, and protection under the 85 FR 52491 (Aug. 26, 2020) (proposed) (addressing is cognizant that other rules may have regulations issued pursuant to inefficiencies in case adjudications at the BIA); some impact on immigration legislation implementing U.S. Expanding the Size of the Board of Immigration obligations under the [CAT] . . . and Appeals, 85 FR 18105 (Apr. 1, 2020) (interim rule) proceedings relevant to this rule, the (adding two Board member positions to the BIA so size and nature of that impact is they would not be in asylum-and- that the BIA may more efficiently and timely speculative. Moreover, even if that withholding-only proceedings if they adjudicate appeals); Organization of the Executive impact were predictable, the had not already claimed a fear of Office for Immigration Review, 84 FR 44537 (Aug. persecution or torture upon being 26, 2019) (interim rule) (providing, in part, for more Department has determined, as a matter efficient disposition of cases through a delegation of policy, that the benefits of the rule— returned to their home countries.’’ The of authority); EOIR Electronic Filing Pilot Program, e.g., better effectuation of statutory Department subsequently concluded 83 FR 29575 (June 25, 2018) (public notice) directives, the expedited consideration that because asylum and withholding of (creating a pilot program to test an electronic filing removal are the ‘‘sole issues to be system that would greatly improve immigration of meritorious asylum claims, and the adjudication processing in the immigration courts elimination of provisions that are resolved in the proceeding and are and eventually the BIA). immaterial to EOIR—far outweigh any squarely presented at the outset of the 32 The Department notes that the same study cited negative impacts that the rule would proceeding . . . there is no reason not by commenters disclosed that the general LOP cost to expect the alien to be prepared to the government over $100 million annually, have, either singularly or in tandem increased an alien’s length of detention, did not with other rules. Such balancing of state his or her claim as quickly as generally affect an alien’s case outcome, and did not preferences is not arbitrary and possible.’’ 85 FR at 59694. In addition, increase representation for detained aliens. See capricious. the Department provided further EOIR, LOP Cohort Analysis at 4 (Sept. 5, 2018), Moreover, assuming, arguendo, that reasoning for its decision to establish a https://www.justice.gov/eoir/file/1091801/ download; cf. 5 CFR 2635.101(b)(11) (requiring the other rules increase the number of deadline: Delayed filing risks delayed disclosure of government waste). Consequently, aliens subject to asylum-and- protection or relief for meritorious even prior to the NPRM, the general LOP provided withholding proceedings under 8 CFR claims; delayed filing increases the no benefit to detained aliens, and the rule’s impact 1208.2(c), the provisions of this rule likelihood that evidence may degrade or on detained aliens served by the general LOP is accordingly minimal, if any. would remain important to effectuate. be lost; and applicants may simply 33 See also section II.C.4.a.i above for further As discussed, supra, aliens subject to delay proceedings, thus causing discussion of these proposed changes. proceedings under 8 CFR 1208.2(c) are inefficiencies in what should be a

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streamlined proceeding. See id. The extent that DHS’s action may result in considered all comments and looked at Department also noted that a deadline more aliens subject to proceedings alternatives. The Department was consistent with current regulations under 8 CFR 1208.2(c)(1), that outcome, understands that many, if not most, establishing a 10-day deadline for which is highly speculative, would not commenters opposing the rule believe detained crewmembers to file an asylum undermine or alter the rule for the that most asylum applications are application, 8 CFR 1208.5(b)(1)(ii), and reasons given. meritorious and, thus, would prefer that directing the agency to provide Comment: In addition, commenters nearly all applications for asylum be ‘‘expedited consideration’’ to asylum explained that the rule should have granted, that border restrictions be applications filed by detained aliens, 8 analyzed the impact of the deadline on loosened accordingly if not eliminated, CFR 1208.5(a). Id. None of these factors aliens, counsel, and court operations, and that the Department, as a matter of relies upon or is altered based on the including the reliance interests of those forbearance or discretion, decline to number of aliens subject to proceedings parties on the current timeframe to seek follow the law in situations where doing under 8 CFR 1208.2(c)(1).34 and engage representation. Commenters so would be beneficial to aliens. For all Furthermore, pursuant to 5 U.S.C. stated that the rule’s lack of a cost of the reasons discussed in the NPRM, 706(2)(A), an agency must articulate a benefit analysis on the 15-day deadline and reiterated herein, however, the ‘‘rational connection between the facts evidenced the Department’s failure to Department declines to adopt those found and the choice made.’’ Burlington assess the harms caused by the rule. positions. In short, although the Truck Lines v. United States, 371 U.S. More specifically, commenters stated Department has considered the issues 156, 168 (1962). Those facts must be that the Department failed to consider raised and policy perspectives advanced ‘‘relevant’’ and considered with no the ‘‘severe consequences’’ on aliens by commenters, it finds them ‘‘clear error in judgment,’’ see Citizens from imposing a 15-day deadline, which unpersuasive and insufficient to warrant to Preserve Overton Park v. Volpe, 401 they alleged could lead to denials of withdrawing the rule. U.S. 402, 416 (1971), but a court will thousands of asylum applications and Similarly, the Department further ‘‘uphold a decision of less than ideal subsequent orders of removal under the understands that, at the least, most clarity if the agency’s path may BIA’s decision in Matter of R–C–R–, 28 commenters would prefer to maintain reasonably be discerned.’’ Motor I&N Dec. 74 (BIA 2020). Commenters the status quo, believing that it is Vehicles Mfrs. Ass’s of U.S., Inc. v. State stated this would deprive pro se aliens preferable to the changes in the rule. Farm Mutual Auto. Ins., 463 U.S. 29, 43 the opportunity to request extensions or The Department has been forthright in (1983) (quoting Bowman Transp. Inc. v. build a record to explain why they did acknowledging the changes created by Arkansas-Best Freight System, 419 U.S. not meet the deadline. In regard to the rule from the status quo, but has also 281, 286 (1974)). Under that standard, nonprofits, commenters stated that the explained the reasoning behind those the rule is not arbitrary and capricious. Department failed to consider that with changes, including the better The rule clearly discussed the relevant such a short deadline, pro bono effectuation of statutory directives, the factors considered in establishing the attorneys would be less willing to take expedited consideration of meritorious 15-day filing deadline, at least to an cases and nonprofits would be unable to asylum claims, and the elimination of extent that the rule was ‘‘reasonably place attorneys with detained aliens. In provisions that are immaterial to EOIR. discerned.’’ See 85 FR at 59693–94; see regard to court operations, commenters The Department has acknowledged also section II.C.4.a.iii.(1), supra. stated that the Department failed to changes in positions, where applicable, Factors over which the Department consider that courts would be it has provided good reasons for those has no control were considered, but as overwhelmed by the number of pro se changes, it believes the changes are discussed, they do not impact the nature cases. better implementations of the law than of the rule. For example, DHS’s Response: As an initial point, the status quo, and it has provided a expansion of expedited removal stems commenters did not quantify the ‘‘reasoned analysis’’ for the changes, from DHS’s ‘‘sole and unreviewable’’ asserted ‘‘severe consequences’’ they which is contained in the NPRM and authority to determine the scope of alleged would flow from the rule, and reiterated herein in response to the aliens to whom expedited removal because the Department believes such comments received; in short, the rule is provisions may be applied. INA consequences are unsupported, not ‘‘arbitrary and capricious’’ under 235(b)(1)(A)(iii)(I), 8 U.S.C. hypothetical, unrealistic, or based on an existing law. See FCC v. Fox Television 1235(b)(1)(A)(iii)(I). The Department incorrect understanding of the rule, it Stations, Inc., 556 U.S. 502, 515 (2009). and DHS are separate agencies with declines to seek to develop a metric for Many of commenters’ concerns are distinct authorities and responsibilities, measuring them. Moreover, most of the also addressed, supra, and the and EOIR played no part in developing alleged ‘‘harms’’ asserted by Department reiterates its prior responses or implementing that notice. Further, commenters are, in reality, founded in accordingly. For example, commenters the notice bore no effect on the policy disagreements over a belief that did not engage with the many reasons Department’s decision to establish a not enough asylum applications are supporting the deadline in the rule— filing deadline for aliens in asylum-and- being granted or simply repeat e.g., the existence of a longstanding 10- withholding-only proceedings in an tendentious or spurious claims about day deadline for a particular category of effort to address inefficiencies in the how the Department considers asylum asylum applicants with no noted effects system and reduce delayed protection or cases under the applicable law. on pro bono representation, the similar relief for meritorious claims. And, to the As with other rules issued by the longstanding existence of immigration Department, many, if not most, judge authority to set deadlines for 34 The Department notes, however, that to the commenters asserted that this rule was filing applications for relief, the extent commenters argue more aliens will be in ‘‘arbitrary and capricious,’’ though availability of an extension of the 15- asylum-and-withholding-only proceedings and subject to the 15-day filing deadline in the future, nearly all of those assertions were day deadline for good cause, the desire such arguments further the Department’s reasoning ultimately rooted in the rule’s failure to of aliens with meritorious claims to rather than counter it. In other words, the adopt the commenters’ policy have those claims adjudicated quickly, Department’s concerns to ensure efficiency, preferences rather than the the longstanding regulatory directive to accurate recall of claims, and avoiding gamesmanship are greater if more proceedings are identification of specific legal complete asylum cases of detained benefited than fewer. deficiencies. The Department has aliens expeditiously, and, the risks

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associated with needless delays in resources to aliens in proceedings before immigration, but the rule will neither asylum adjudications, including the EOIR. increase nor decrease the number of degradation of evidence. The The Department further notes that overall cases filed with the immigration Department considered those issues, as nothing in the rule prohibits nonprofits, courts. See EOIR, Workload and well as the ones raised by commenters, pro bono groups, or any other class of Adjudication Statistics, New Cases and but determined for the reasons given representatives from taking on an alien’s Total Completions—Historical, https:// that a general 15-day filing period, case at a later point in the proceedings. www.justice.gov/eoir/page/file/1139176/ while providing for exceptions where An alien who obtains counsel may download (reflecting that DHS filed a the immigration judge finds good cause, choose a representative at any point in record number of new cases—over strikes the appropriate balance between the proceedings, including after the 500,000—in FY 2019 and then filed the expediency and fairness. filing of an application, and the ability second highest number of new cases— The Department further finds that the to provide representation does not over 361,000—in FY 2020). rule would not impact the availability of require assistance from the very first Furthermore, most asylum cases have pro bono representation. To the hearing. Thus, pro bono organizations legal representation notwithstanding contrary, as discussed, supra, ensuring have more opportunities to provide this dramatic increase in new case expeditious consideration of asylum assistance that many commenters filings. See EOIR, Workload and applications filed by detained aliens suggested. Adjudication Statistics, Current may promote increased pro bono In drafting this rule, the Department Representation Rates, https:// representation which is often dissuaded considered the potential impacts of the www.justice.gov/eoir/page/file/1062991/ by lengthy delays in immigration deadline on various referenced groups, download. Nothing in the rule would proceedings. See, e.g., HRF Report supra but finds assertions of deleterious logically cause representation rates to impacts unsupported, grossly (‘‘In a February 2016 survey conducted decline or suggests a reason why aliens speculative, and ultimately by Human Rights First of 24 pro bono would be unable to secure unpersuasive. The rule’s extension for coordinators at many of the nation’s representation. Moreover, ample good cause, 8 CFR 1208.4(d), and the major law firms, nearly 75 percent of resources for pro se aliens are available retained provision allowing for future pro bono professionals indicated that in immigration court. See, e.g., EOIR, amendments or supplements to the delays at the immigration court are a List of Pro Bono Service Providers, application, 8 CFR 1208.4(c), stem from significant or very significant negative https://www.justice.gov/eoir/list-pro- consideration of aliens, counsel factor in their ability to take on a pro bono-legal-service-providers; EOIR, Pro (including pro bono counsel), and bono case for legal representation before Bono Portal, https:// nonprofit organizations who may the court.’’). To the extent that probono.eoir.justice.gov/; EOIR, encounter unusual situations that Immigration Court Online Resource, commenters posited hypothetical prevent them from meeting the scenarios about particular pro bono https://icor.eoir.justice.gov/en/;cf. EOIR deadline. 85 FR at 59694. Commenters’ Launches Resources to Increase groups or particular types of aliens, the concerns regarding ‘‘thousands’’ of Department notes that if such scenarios Information and Representation (Oct. 1, denied applications and subsequent 2020), https://www.justice.gov/eoir/pr/ are reflected by actual applicants, then orders of removal are speculative and eoir-launches-resources-increase- the immigration judge can consider overwrought almost to the point of information-and-representation. In whether any of the factors referenced by histrionic. In fact, commenters’ short, suggestions that immigration the commenters warrant an extension of concerns on this point appear to tacitly courts will be ‘‘overwhelmed’’ by pro se the filing deadline. suggest that most asylum claims are cases are not rooted in the current Overall, the Department believes that non-meritorious, as commenters reality of asylum adjudications. nonprofit organizations and pro bono generally failed to address the need for Finally, the Department considered volunteers can meet this deadline, detained aliens with meritorious claims the potential impact of the deadline on absent situations in which the deadline to have those claims adjudicated as nonprofit or pro bono organizations as may be extended for good cause. Given efficiently as possible. discussed above. See section C.4.a.ii(6), the alien’s already-limited available The deadline, in and of itself, does supra. avenues for relief, the common goal of not prevent aliens from requesting an providing relief or protection to aliens extension or explaining why they did iv. Deadline Removes Immigration with meritorious claims as quickly as not meet the deadline. Aliens may Judge Discretion possible, and the risk of loss or request an extension at any point during Comment: Commenters opposed the degradation of evidence with the the 15-day timeframe following their deadline because they alleged that it passing of time—none of which were initial hearing. See 8 CFR 1208.4(d). removed all immigration judge challenged by commenters, including Further, the deadline is not subject to discretion by requiring judges to deem pro bono organizations themselves—the retroactive application and does not an application abandoned if a deadline Department believes it is prudent to infringe on the reliance interests of is not met. Commenters stated that if establish the 15-day deadline. Although aliens subject to the current regulations. immigration judges did not exercise the Department acknowledges that In addition, a significant motivation discretion in considering the unique nonprofit organizations and pro bono for establishing the deadline stemmed circumstances in each case, due process volunteers, like all legal representatives, from the Department’s consideration of would be violated. Commenters may face unforeseen challenges inefficiencies in court operations due to explained that such discretion was confronting deadlines set by a judge, the the delayed filing of applications. See necessary for immigration judges to Department is confident that such 85 FR at 59693–94. Commenters’ manage their dockets, given that representatives will be able to handle concerns that courts will be immigration judges were best suited to such deadlines, just as they do in other ‘‘overwhelmed’’ with pro se cases is set filing deadlines. Commenters also courts and just as they handle all both speculative and unsupported by contended that the rule allegedly did regulatory changes inherent across evidence. To be sure, immigration not allow for an immigration judge to government agencies, and will continue courts have seen an increase in cases in further extend a filing deadline beyond to be able to provide assistance and recent years due to increased illegal the initial extension for good cause.

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Response: Again, commenters requires individualized determinations, withholding of removal. See 85 FR at misapprehend the rule, existing which this scheme does not, the 59694. It does not preclude immigration regulations, and the Department’s decisionmaker has the authority to rely judges from managing their dockets. In administrative interests. Current on rulemaking to resolve certain issues fact, the rule expressly provides regulations, 8 CFR 1003.31(c), already of general applicability unless Congress discretion to immigration judges to provide that the ‘‘Immigration Judge clearly expresses an intent to withhold extend the filing deadline for good may set and extend time limits for the that authority. The approach pressed by cause shown, 8 CFR 1208.4(d)(1), and filing of applications and related Lopez—case-by-case decision-making in the rule does not affect immigration documents and responses thereto, if thousands of cases each year—could judges’ discretion to allow an alien to any,’’ and that ‘‘[i]f an application or invite favoritism, disunity, and amend or supplement the application document is not filed within the time inconsistency.’’ (internal citations later in the proceedings, 8 CFR set by the Immigration Judge, the omitted)). 1208.4(c). opportunity to file that application or In addition, immigration judges are This does not violate due process. document shall be deemed waived.’’ appointed by the Attorney General and Due process in immigration proceedings The rule does not change this act as his delegates in cases that come requires notice and a meaningful longstanding principle, and many before them. 8 CFR 1003.10(a). They opportunity to be heard, neither of commenters failed to acknowledge that exercise delegated authority in which are affected by this rule. See immigration judges already have well- accordance with the Act and from the LaChance, 522 U.S. at 266 (‘‘The core of established authority to set filing Attorney General by way of regulations. due process is the right to notice and a deadlines and are already authorized to 8 CFR 1003.10(b); see also INA meaningful opportunity to be heard.’’). find applications abandoned for failing 103(g)(2), 8 U.S.C. 1103(g)(2). As Aliens in asylum-and-withholding-only to comply with such deadlines. generally explained by the Supreme proceedings will continue to be Court, ‘‘[i]f Congress has explicitly left Instead, the rule acknowledges the provided notice of removability, 8 CFR a gap for the agency to fill, there is an inefficiency of the current case-by-case 235.6, 1003.13 (defining ‘‘charging express delegation of authority to the system in which immigration judges document’’ used by DHS to initiate agency to elucidate a specific provision may set varying filing deadlines for immigration proceedings before an of the statute by regulation.’’ Chevron, similarly-situated cases. Such a immigration judge); have an opportunity 467 U.S. at 843–44 (1984). This section to present the case to an immigration situation is ripe for rulemaking. See of the rule was promulgated in light of Lopez v. Davis, 531 U.S. 230, 244 (2001) judge, INA 235(b)(1)(B)(ii), 8 U.S.C. the Act’s silence on a timeframe for 1225(b)(1)(B)(ii), and 8 CFR 1208.2(c); (observing that ‘‘a single rulemaking filing applications in asylum-and- proceeding’’ may allow an agency to and have an opportunity to appeal, 8 withholding-only proceedings. CFR 1003.1(b)(9). more ‘‘fairly and efficiently’’ address an Regardless of whether immigration Without an initial filing deadline, issue than would ‘‘case-by-case judges previously had discretion under aliens have no established timeframe in decisionmaking’’ (quotation marks the regulations to set deadlines, this rule which to expect consideration of their omitted)); Marin-Rodriguez v. Holder, amends the regulations to establish in applications for relief or protection. The 612 F.3d 591, 593 (7th Cir. 2010) (‘‘An asylum-and-withholding-only Department is unaware of any reason agency may exercise discretion proceedings a 15-day deadline from the why an alien with a valid claim for categorically, by regulation, and is not date of the alien’s first hearing to file an limited to making discretionary application. EOIR acknowledges this is asylum would oppose a clear, defined decisions one case at a time under open- a change from the previous regulation; filing deadline, especially one that ended standards.’’). The Department is however, agencies are ‘‘free to change expeditiously allows the alien to obtain appropriately using rulemaking to their existing policies’’ if they provide a the benefit he or she seeks (including provide guidance in order to streamline reasoned explanation for the change. release from detention), in favor of determinations consistent with its Encino Motor Cars, LLC v. Navarro, 136 uncircumscribed discretion that could statutory authority. Although the S. Ct. 2117, 2125 (2016) (citing Nat’l delay consideration of the alien’s 35 Department acknowledges that the rule Cable & Telecomm. Ass’n. v. Brand X claims. In addition, without an initial may proscribe immigration judge internet Services, 545 U.S. 967, 981–982 filing deadline, proceedings may be discretion to a degree, the rule’s (2005)). That explanation was provided delayed, resulting in degradation or loss promotion of consistency, clear in the proposed rule, 85 FR at 59693– of evidence that is oftentimes crucial to deadlines, and continued expeditious 94, and is reiterated throughout this an alien’s claims. The Department is treatment of asylum claims, especially final rule. Generally, the Department similarly unaware of why an alien meritorious asylum claims, by detained established a 15-day deadline, subject to would oppose a deadline that facilitates aliens far outweigh its limitation on an extension for good cause, in order to expeditious presentation of oftentimes immigration judge discretion. See reduce the risk of degradation or loss of time-sensitive evidence that may be Heckler v. Campbell, 461 U.S. 458, 467 evidence, reduce the risk of delayed (1983) (‘‘The Court has recognized that grants of protection or relief for 35 The Department recognizes and agrees with the even where an agency’s enabling statute meritorious claims, accomplish the Supreme Court’s observation that ‘‘as a general matter, every delay works to the advantage of the expressly requires it to hold a hearing, regulatory directive that detained aliens deportable alien who wishes merely to remain in the agency may rely on its rulemaking receive ‘‘expedited consideration’’ of the United States.’’ Doherty, 502 U.S. at 323. Thus, authority to determine issues that do not their applications, and reduce it is aware that aliens without valid claims may require case-by-case consideration . . . inefficiencies caused by delayed filings. likely prefer substantial delays in the adjudications of their cases and, accordingly, oppose any efforts A contrary holding would require the See id. to increase the efficiency of such adjudications. agency continually to relitigate issues Accordingly, consistent with Nevertheless, the Department finds any rationale for that may be established fairly and applicable law and existing regulations, encouraging or supporting the dilatory adjudication efficiently in a single rulemaking the rule removes individual of cases both inherently unpersuasive and wholly outweighed by the importance of timeliness and proceeding.’’ (internal citations immigration judge discretion only as it fairness—especially to detained aliens with omitted)); see also Lopez, 531 U.S. at applies to the initial deadline for filing meritorious claims—in adjudicating asylum 243–44 (‘‘[E]ven if a statutory scheme an application for asylum and applications.

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crucial to the outcome of the alien’s more founded or persuasive, the cause. 8 CFR 1208.4(d)(1). In short, case. Department nevertheless believes that contrary to commenters’ arguably Finally, commenters misinterpret the the concerns asserted by most tendentious views, efficiency does not rule in regard to the extension commenters are outweighed by the trump due process, and nothing in the provision. There is no limitation to a benefits provided by the rule, namely rule suggests otherwise. single good-cause extension. The only consistency in setting filing deadlines, Comment: As an overarching concern, requirement for the extension would be better effectuation of the regulatory commenters claimed that the that the alien must demonstrate good directive to provided expeditious Department is attempting to speed up cause for any extension. Cf. Matter of L– consideration to adjudicating asylum proceedings, by imposing the 15-day A–B–R–, 27 I&N Dec. at 405 (providing applications of detained aliens, faster deadline, in the name of efficiency. non-exhaustive factors for consideration resolution of meritorious claims, and Commenters alleged such action when determining whether or not a better protection against claims going violates due process because aliens and party has demonstrated good cause for stale due to delay. counsel are deprived of meaningful a continuance). In drafting the rule, the Department presentation of their cases. considered that the particular aliens Response: The Department reiterates v. Deadline Raises Efficiency Concerns affected—those in asylum-and- its response to similar comments, supra, (1) Agency Incorrectly Prioritizes withholding-only proceedings—are (1) and adds the following further response. Efficiency Above All Else already subject to removal orders, Due process in immigration proceedings denied applications for admission, or, requires notice and a meaningful Comment: Commenters alleged that for crewmembers, denied permission to opportunity to be heard, neither of the deadline improperly prioritizes land; (2) generally detained; and (3) which are affected by this rule. See efficiency over all other concerns and solely limited to claims for asylum and LaChance, 522 U.S. at 266 (‘‘The core of factors. withholding of removal, which are due process is the right to notice and a Response: Commenters are correct presented at the outset of the meaningful opportunity to be heard.’’). that this section of the rule relates to proceeding. See 85 FR at 59694. Given The Department will continue to efficiency. See 85 FR at 59694 (‘‘[T]he the unique position of these aliens, the provide aliens in asylum-and- deadline would ensure only that the Department concluded there was ‘‘no withholding-only proceedings notice of application is filed in a timely manner reason not to expect the alien to be the charges of removability, 8 CFR consistent with the streamlined and prepared to state his or her claim as 235.6, 1003.13 (defining ‘‘charging focused nature of asylum-and- quickly as possible,’’ thereby enabling document’’ used by DHS to initiate withholding-only proceedings.’’). timely provision of relief or protection immigration proceedings before an However, commenters are incorrect that for meritorious claims. Id. The rule also immigration judge); an opportunity to the Department considered only noted that delaying proceedings risked present the case to an immigration efficiency to the exclusion of all other degradation or loss of evidence, which judge, INA 235(b)(1)(B)(ii), 8 U.S.C. factors. As discussed throughout this could affect adjudication of the claim(s). 1225(b)(1)(B)(ii), and 8 CFR 1208.2(c); rule, the Department considered, inter To be sure, the realities of the pending and an opportunity to appeal, 8 CFR alia, that most aliens subject to the rule caseload and the continued increase in 1003.1(b)(9). In short, nothing in the are detained, that aliens with new cases filed by DHS in immigration rule compromises the provision of meritorious claims have a strong court should not be underestimated. See notice to an alien or an alien’s ability to incentive to obtain relief—and release EOIR, Adjudication Statistics: New be heard on any asylum application. To from detention—as quickly as possible, Cases and Total Completions— the contrary, the rule provides an alien that aliens who have recently claimed a Historical (Oct. 13, 2020), https:// clearer notice of the relevant filing fear of persecution or torture will be www.justice.gov/eoir/page/file/1139176/ deadline and seeks to ensure that an well-situated to perfect that claim download; see also EOIR, Adjudication alien will have the opportunity to be quickly through the filing of an asylum Statistics: Pending Cases, New Cases, heard before memories or other application, that most asylum and Total Completions (Oct. 13, 2020), evidence fade. See generally 85 FR at applicants have representation, that https://www.justice.gov/eoir/page/file/ 59693–94. filing deadlines are a well-established 1242166/download. Further, the Further, nothing in the rule inhibits part of immigration court practice and regulation at 8 CFR 1208.5(a) provides an alien’s ability to meaningfully are utilized by courts at all levels, that that detained aliens should receive present his or her case. The alien will, an even shorter filing deadline has ‘‘expedited consideration.’’ Consistent in reality, have more than 15 days to file existed for many years for a particular with those observations, this deadline an asylum application, and the class of asylum applicants with no appropriately eliminates unnecessary immigration judge does not adjudicate noted challenges or complaints, that delays in what should be a streamlined the application at the same time that it delays in adjudication may risk proceeding. is filed. An alien’s testimony alone evidence degradation and may make it Nevertheless, although the rule ‘‘may be sufficient to sustain the more difficult to obtain pro bono referenced the possibility that, without applicant’s burden without representation, that the deadline is not a deadline, aliens may attempt to delay corroboration, but only if the applicant absolute because it may be extended in proceedings, the rule did not satisfies the trier of fact that the appropriate circumstances, and that the exclusively rely on that point in applicant’s testimony is credible, is rule does not alter longstanding rules establishing the 15-day deadline. persuasive, and refers to specific facts and practices allowing aliens to Further, most commenters failed to sufficient to demonstrate that the supplement an application and to seek appreciate the rule’s acknowledgment of applicant is a refugee.’’ INA to have an immigration consider late- ‘‘unusual situations’’ in which an alien 208(b)(1)(B)(ii), 8 U.S.C. filed evidence. The Department has also may need additional time to file an 1158(b)(1)(B)(ii). Thus, particularly for fully considered the issues raised by application. Id. In such situations, meritorious claims, an alien may not commenters and finds them largely despite efficiency concerns, the need extensive documentation or unavailing for the reasons given. regulation authorizes the immigration preparation to support and present his Moreover, even if the comments were judge to extend the deadline for good or her claim because an alien can meet

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the relevant burden of proof through that the application is filed in a timely recently proposed regulatory credible, persuasive, and specific manner consistent with the streamlined clarifications of the definition of ‘‘good testimony. In appropriate cases, aliens and focused nature of asylum-and- cause’’ in the context of continuance can also request an extension of the withholding-only proceedings.’’ 85 FR requests in immigration proceedings. filing deadline and, if necessary, a at 59694. The Department promulgates See Good Cause for a Continuance in continuance of any hearing. In short, this rule in part to effectuate the Immigration Proceedings, 85 FR 75925 commenters’ allegations that the rule regulatory directive of 8 CFR 1208.5(a) (Nov. 27, 2020). Although that prohibits aliens and representatives to provide these aliens with expedited rulemaking is not final, the Department from presenting their cases are wholly consideration. expects that when it is finalized, it will unfounded. Finally, commenters’ suggestions on provide helpful guidance to (2) Deadline Does Not Promote this point may also implicate ethics or adjudicators considering questions of Efficiency professional responsibility issues. ‘‘good cause’’ across different situations. Although placeholder applications with Until guidance in that rule is finalized, Comment: Commenters stated that the boilerplate language are not uncommon however, immigration judges will 15-day deadline would incentivize the currently, in certain circumstances the continue to adjudicate requests alleging use of ‘‘placeholder’’ applications and filing of such documents may warrant ‘‘good cause’’—including extension boilerplate language, increased filings of disciplinary sanction. See 8 CFR requests, which are tantamount to motions to amend and supplement, and 1003.102(u) (‘‘Repeatedly files notices, requests for a continuance—as they subsequent piecemeal submission of motions, briefs, or claims that reflect currently do so.37 supplemental evidence. Commenters little or no attention to the specific To the extent that commenters believe stated that the Department failed to factual or legal issues applicable to a an increased number of appeals will consider these administrative burdens client’s case, but rather rely on result from the rule, such a concern is on both DHS, adjudicators, and court boilerplate language indicative of a speculative, ignores the inherently fact- staff. The commenters asserted that substantial failure to competently and specific and case-by-case nature of allowing at the outset adequate time to diligently represent the client’’).36 To asylum adjudications, and tacitly submit a well-prepared application, the extent that commenters assert that suggests that most asylum claims are rather than rush an application that the rule will cause representatives to unmeritorious necessitating the need for consequently needs further paperwork, violate their ethical and professional an appeal. Commenters did not support would benefit the entire immigration responsibility obligations, that assertion this assertion regarding appeals, and the system. is not well-taken. The Department Department declines to endorse the Response: As an initial point, expects that all representatives will speculative and unfounded bases for it. commenters did not explain why these comport themselves in accordance with allegations are unique to the rule. Many vi. Deadline Deprives Aliens of Right to relevant ethics and professional aliens currently file ‘‘placeholder’’ Counsel 38 responsibility rules, and nothing in the applications and boilerplate language, rule excuses engaging in conduct or Comment: Commenters alleged that file motions to amend and supplement, behavior that may constitute grounds for the 15-day deadline, including the and submit supplemental evidence for extension for good cause, violates an review piecemeal; thus, immigration disciplinary sanctions. See 8 CFR alien’s right to counsel at no expense to judges are already well-accustomed to 1003.101(a). Comment: Commenters explained that the government.39 Commenters alleged such scenarios. Commenters’ suggestion the vague ‘‘good cause’’ standard for that the rule will cause more of these extension requests was prone to 37 The phrase ‘‘good cause’’ currently appears in actions is speculative at best, but even inconsistent application that would lead at least 26 places in the Department’s regulations if it were more well-founded, the in 8 CFR chapter V. See, e.g., 8 CFR 1003.20(b), Department expects any additional to confusion and an increased number 1003.29, 1240.6. As noted, the Department burdens to be minimal because it would of appeals. Commenters stated this acknowledges that ‘‘good cause’’ is not currently result conflicts with the rule’s purported defined in the regulations and, thus, may be subject represent little change from the to inconsistent application. Nevertheless, the adjudicatory status quo and immigration efficiency justifications. Response: The Department Department did not propose defining ‘‘good cause’’ judges are already experienced at in the NPRM for this final rule because continuance handling these actions. appreciates commenters’ concerns about requests are not limited solely to cases involving Additionally, commenters again the ambiguity of a ‘‘good cause’’ asylum applications and, thus, a separate standard and the possibility of rulemaking on the subject applicable to all cases misstate or misapprehend the rule. It was more appropriate. See 85 FR at 75926–28 does not require all paperwork to be inconsistent application. For those (discussing the application of the ‘‘good cause’’ filed by the 15-day deadline—only the reasons, among others, the Department standard in multiple contexts, including those application. Because the alien, by unrelated to an asylum application). Accordingly, 36 Conduct in violation of 8 CFR 1003.102(u) may the Department does not believe that interjecting a definition, will have recently made his implicate other disciplinary grounds as well. For new definition in the final rule would be or her claim to DHS, the claim should example, 8 CFR 1003.102(j)(1) prohibits engaging in appropriate, particularly because commenters did be fresh and ripe for memorialization. In frivolous behavior, which includes a practitioner not supply a workable suggestion for such a fact, because memories fade over time, who ‘‘knows or reasonably should have known that definition. Nevertheless, the Department will his or her actions lack an arguable basis in law or consider commenters’ concerns about the ambiguity it will generally be to the benefit of the in fact, or are taken for an improper purpose, such of the ‘‘good cause’’ standard and the possibility of alien to memorialize the claim and file as . . . to cause unnecessary delay.’’ Further, 8 CFR inconsistent application when it finalizes the the application as soon as possible. 1003.102(o) states that a practitioner may be subject separate rule on ‘‘good cause.’’ Further, commenters simply discount to disciplinary sanctions if he or she ‘‘[f]ails to 38 This section focuses specifically on provide competent representation to a client. representation by attorneys because commenters’ the availability of an extension of the Competent representation requires the legal concerns focused specifically on attorneys. deadline to file the application, 8 CFR knowledge, skill, thoroughness, and preparation However, the Department notes that aliens may also 1208.4(d), even though it should obviate reasonably necessary for the representation. be represented by a wide range of representatives concerns about allegedly too-soon filing Competent handling of a particular matter includes beyond traditional attorneys. See generally 8 CFR inquiry into and analysis of the factual and legal 1292.1 (providing who may represent aliens in deadlines. Further, as stated in the elements of the problem, and use of methods and proceedings before EOIR). proposed rule, the purpose of the initial procedures meeting the standards of competent 39 In removal proceedings before an immigration 15-day deadline was to ‘‘ensure only practitioners.’’ judge or the Board aliens ‘‘have the privilege of

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that the deadline restricts aliens’ access the alien receives information that may provides a written disclosure on Form to meaningful representation because 15 assist in procuring counsel multiple M–444 that describes the alien’s ‘‘right days is too short to hire counsel and for times before the 15-day period runs, to consult with other persons prior to such counsel to prepare the application. even without an extension of that the interview and any review thereof at Commenters referenced case law that period. no expense to the United States held that denial of a continuance to seek As an initial point, every alien Government.’’ 8 CFR 235.3(b)(4)(i)(B), counsel deprives aliens of their rights— detained by DHS, including those 1235.3(b)(4)(i)(B). Next, prior to the Chlomos v. INS, 516 F.2d 310, 313–14 subject to the rule, is ‘‘notified that he credible fear interview, the alien is (3d Cir. 1975) and Njoroge v. Holder, or she may communicate with the ‘‘given time to contact and consult with 753 F.3d 809, 812 (8th Cir. 2014). consular or diplomatic officers of the any person or persons of his or her Commenters stated that those cases are country of his or her nationality in the choosing.’’ 8 CFR 235.3(b)(4)(ii), analogous to the 15-day deadline’s United States.’’ 8 CFR 236.1(e). Through 1235.3(b)(4)(ii). Once the asylum officer deprivation of an alien’s right to that communication, an alien’s determines that an alien has a credible counsel. consulate may assist the alien with fear, the alien is provided Form I–863, Relatedly, commenters alleged that obtaining representation, including an Notice of Referral to Immigration Judge, the 15-day deadline would undermine ‘‘accredited official’’ of the alien’s see 8 CFR 235.6(a)(2), 1235.6(a)(2), the practice of informing aliens of pro country of nationality. See 8 CFR which includes an advisal regarding the bono services at their master calendar 1292.1(a)(5) (authorizing an accredited alien’s right to representation at no hearings, pursuant to 8 CFR official, defined as ‘‘[a]n accredited expense to the government and an 1240.10(a)(2) and (3), thus defeating the official, in the United States, of the attached copy of EOIR’s pro bono list. purpose of pro bono organizations’ government to which an alien owes Cf. INA 239(a)(1)(E), 8 U.S.C. inclusion in the ‘‘List of Pro Bono Legal allegiance, if the official appears solely 1229(a)(1)(E) (requiring the provision of Service Providers.’’ in his official capacity and with the a list of available pro bono Response: As discussed both above alien’s consent,’’ to represent an alien in representatives at the time a notice to and below in more detail, the rule does immigration court proceedings). appear is issued). Moreover, for all cases not affect an alien’s authority or ability Although aliens alleging persecution subject to the rule, DHS provides a copy to obtain counsel at no expense to the by the government of their country of of the pro bono list as part of the notice government in proceedings subject to nationality may not be expected to to the alien when it issues the Form I– the rule. Accordingly, the Department utilize that same government to obtain 863. reiterates its response to similar representation, other mechanisms also Finally, at the first hearing, the comments elsewhere in the rule and exist to assist aliens with understanding immigration judge also (1) advises the adds the following further response. their situation and obtaining alien that he or she may apply for The rule does not limit an alien to 15 representation. For example, DHS asylum in the United States or days to find counsel. The 15-day detention standards authorize the withholding of removal to those deadline applies to the time in which an presentation of information to detained countries; (2) makes available the alien must file an application, absent an aliens regarding U.S. immigration law appropriate application forms; (3) extension for good cause, and begins and procedures and their rights and advises the alien of the privilege of from the date of the first hearing before options within the U.S. immigration being represented by counsel at no the immigration judge. The deadline system. See, e.g., Standard 6.4(I), expense to the government and of the does not establish a time period in National Detention Standards (rev. consequences, pursuant to section which an alien must secure 2019), https://www.ice.gov/doclib/ 208(d)(6) of the Act, of knowingly filing representation, and an alien may secure detention-standards/2019/6_4.pdf a frivolous application for asylum; and representation at any time—before, (‘‘Facilities shall permit authorized (4) provides to the alien a list of persons during, or after the alien files an asylum persons to make presentations to groups who have indicated their availability to application. of detainees for the purpose of represent aliens in asylum proceedings In particular, nothing precludes an informing them of U.S. immigration law on a pro bono basis. 8 CFR alien from hiring counsel before the first and procedures, consistent with the 1240.11(c)(1)(i)–(iii). These procedures hearing, and as noted above, some security and orderly operation of each are enshrined in current regulations and aliens subject to the rule may have facility. ICE/ERO encourages such are not altered by the rule. In other already been in the United States for a presentations, which instruct detainees words, existing regulations already considerable amount of time and, thus, about the immigration system and their suggest that an immigration judge will have had years to procure counsel. An rights and options within it.’’). provide an alien with an asylum alien may procure representation at Additionally, DHS detention centers application and the pro bono list at the multiple points between the time the typically provide detainees with EOIR’s same hearing and, presumably, will also alien expresses a fear of return and the list of pro bono representatives and also set a deadline for the filing of the commencement of the 15-day period, as provide links to that list publicly. See, application provided. Commenters did e.g., Laredo Detention Center, Legal & not address this existing procedure, did being represented (at no expense to the Case Information, Nationwide pro bono Government) by such counsel, authorized to not appear to recognize that the rule practice in such proceedings, as he shall choose.’’ representatives listing, https:// does not alter it, except to provide a INA 292, 8 U.S.C. 1362; see also INA 240(b)(4)(A), www.ice.gov/detention-facility/laredo- clear filing deadline subject to an 8 U.S.C. 1229a(b)(4)(A). Although the proceedings detention-center. Thus, aliens may be extension, and did not explain why this subject to the rule under 8 CFR 1208.2(c)(1) are not informed of options and the availability 40 removal proceedings, they are generally governed existing procedure is problematic. by the same procedural rules as removal of representation while in DHS custody. proceedings set forth in 8 CFR part 1240, subpart Additionally, for aliens subject to 40 Most, if not all, commenters also failed to A. 8 CFR 1208.2(c)(3)(i). Thus, they incorporate by credible fear procedures, following an acknowledge that the INA provides only a reference an alien’s privilege of being represented alien’s indication to apply for asylum, minimum 10-day window for an alien to obtain at a hearing conducted under 8 CFR 1208.2(c). See representation before an alien’s first hearing in 8 CFR 1240.3 (‘‘The respondent may be represented expression of fear of persecution or removal proceedings, INA 239(b)(1), (3), 8 U.S.C. at the hearing by an attorney or other representative torture, or expression of fear of return to 1229(b)(1), (3), and by practice EOIR extends that qualified under 8 CFR part 1292.’’). his or her country, the referring officer Continued

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Given the multiple points at which (‘‘Ghajar’s assertion that she was denied conducted under 8 CFR 1208.2(c)(1) and aliens are advised of the availability of due process because she was not (2). 8 CFR 1208.4(d). consultation or representation prior to granted a second continuance to allow vii. Deadline Is Biased in Favor of the the completion of the 15-day deadline her attorney further time to prepare for Government and the availability of an extension of the deportation hearing is without merit that deadline for good cause, the .... One full month elapsed between Comment: Commenters explained Department rejects commenters’ the date of the show cause order and the that, under recently enacted rules, the assertions that the rule inhibits or date on which the hearing ultimately government could ‘‘file evidence eliminates an alien’s meaningful took place .... The immigration judge without it being contested,’’ thereby opportunity to obtain representation.41 did not abuse his discretion in refusing increasing bias toward the government Moreover, as noted elsewhere, in to grant a second continuance.’’). in these proceedings. practice, aliens have far more time than Further, a representative may seek an Response: In response to commenters’ 15 days to obtain representation. extension of the deadline to file an specific concerns with evidence filed by Similarly, the rule does not deprive application and may seek a continuance the government, that concern relates to counsel of time to prepare an alien’s of any scheduled hearing. Thus, the a separate rulemaking and is thus claim. Because the government is not rule’s 15-day deadline itself does not outside the scope of this final rule. required to provide aliens with deprive counsel of adequate time to In regard to a general concern of bias representation, the alien is responsible prepare the application. towards the government, which the for securing or consulting with counsel, To reiterate, the deadline does not Department understands comments to and the time afforded counsel is often affect an immigration judge’s ability to have implicitly referenced, the a function of how diligent an alien is in grant a continuance for good cause, see Department disagrees that the deadline seeking representation. See INA 8 CFR 1003.39, including one to find disfavors aliens or shows bias in favor 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); Cf. counsel.42 The 15-day deadline applies of the government. The deadline is Hidalgo-Disla v. INS, 52 F.3d 444 (2d to the time period in which an alien intended to effectuate efficient Cir. 1995) (finding an immigration must file an application, absent an processing, consistent with the judge’s decision to proceed with a extension for good cause; it does not regulatory directive that applications of hearing after providing an alien 26 days establish a time period in which an detained aliens be given ‘‘expedited to seek counsel was not erroneous and alien must secure counsel and thus does consideration’’ where possible, 8 CFR dismissing as frivolous an appeal not interfere with an immigration 1208.5(a), and is fully consistent with asserting that it was); Ghajar v. INS, 652 judge’s discretion to grant a continuance longstanding authority to set deadlines F.2d 1347, 1348–49 (9th Cir. 1981) in that regard. For these reasons, the in immigration proceedings, 8 CFR deadline does not deprive an alien of 1003.31(c). Efficient processing benefits period to asylum-and-withholding-only the opportunity to obtain counsel of his both the government and aliens, proceedings. Thus, an alien will have the her choosing at no expense to the especially aliens who have meritorious statutorily-required minimum amount of time to government. claims.43 Given the pending caseload obtain counsel, and the rule does not alter that Likewise, the deadline does not affect procedure. and the recent uptick in proceedings 44 41 Despite the availability of the option for the requirement that an immigration initiated by DHS, the government has representation at no expense to the government in judge advise the alien of (1) the right to an interest in timely adjudications, proceedings subject to this rule, 8 CFR 1240.3, and representation at no expense to the consistent with applicable law and the fact that the overwhelming majority of aliens government, and (2) the availability of regulations, so that it may continue to seeking asylum obtain representation, the Department recognizes that a certain small pro bono legal services and whether the accomplish its mission of fairly, percentage of aliens do not obtain representation. alien received a list of such pro bono expeditiously, and uniformly The Department understands that some aliens do legal service provider, see 8 CFR interpreting and administering the not secure representation because they do not wish 1240.10(a)(1) and (2), at the first nation’s immigration laws. Likewise, to pay the fee charged by a potential representative. The Department also understands that many hearing, nor does it affect the detained aliens should want their representatives, due to ethical or professional requirement of the immigration judge to claims considered in a timely fashion in responsibility obligations, will not take cases of provide certain advisals to aliens with order to receive relief or protection and aliens who are ineligible or present weak claims for an intent to apply for asylum, including subsequent release from detention as relief or protection from removal because they do not wish to charge money for representation when the provision of an asylum application quickly as possible. representation is unlikely to affect the outcome of and a copy of the pro bono list, 8 CFR Finally, as discussed supra, the the proceeding. These situations illustrate only that 1240.11(c)(1). In fact, the rule makes it Department rejects any insinuation that some aliens may not ultimately secure explicit that immigration judges must its adjudicators are biased or that it is representation for reasons common to issues of representation in all civil cases—i.e., the cost of the follow those procedures in proceedings representation and the strength of the case—not that 43 To the extent commenters suggest that the rule aliens are limited or prohibited from obtaining 42 The Department recognizes that aliens should disadvantages aliens without meritorious claims by representation by this or any other Department receive a fair opportunity to secure counsel. Matter making it more difficult for such aliens to delay regulation. See United States v. Torres-Sanchez, 68 of C–B–, 25 I&N Dec. 888 (BIA 2015). The Board has their removal from the United States, the F.3d 227, 231 (8th Cir. 1995) (‘‘Although Torres- not specifically defined what a reasonable amount Department finds such a suggestion unavailing. Sanchez expressed some frustration over his of time is for purposes of obtaining representation, Overall, the Department finds any rationale for attempt to obtain counsel, that frustration, in our and the respondent in Matter of C–B– was given encouraging or supporting the dilatory adjudication view of the record, stemmed from his realization only eight days between the issuance of an NTA of cases, especially cases lacking merit, both that he faced the inevitable consequence of and his first hearing, in apparent contravention of inherently unpersuasive and wholly outweighed by deportation, not from a lack of opportunity to retain INA 239(b)(1), 8 U.S.C. 1229(b)(1). See id. at 889. the importance of timeliness and fairness— counsel. In any event, the mere inability to obtain Nevertheless, Matter of C–B– cannot be interpreted especially to detained aliens with meritorious counsel does not constitute a violation of due to contradict the INA, and the INA clearly indicates claims—in adjudicating asylum applications. process.’’). As the Department is not involved in that 10 days between the service of a notice to 44 See EOIR, Adjudication Statistics: New Cases discussions between respondents and potential appear and the first hearing is a sufficient amount and Total Completions—Historical (Oct. 13, 2020), representatives, it cannot definitively state every of time to obtain representation. See INA 239(b)(3), https://www.justice.gov/eoir/page/file/1139176/ reason that an alien who seeks representation may 8 U.S.C. 1229(b)(3). Accordingly, this rule is not in download; see also EOIR, Adjudication Statistics: not obtain it. Nevertheless, it can state that this rule tension with Matter of C–B– and does not deviate Pending Cases, New Cases, and Total Completions does not limit or restrict any alien’s ability to obtain from recognizing the statutory parameters for (Oct. 13, 2020), https://www.justice.gov/eoir/page/ representation in immigration proceedings. providing time for an alien to obtain representation. file/1242166/download.

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engaging in this rulemaking for biased United States on June 8, 2014, and case of an alien who has been in the reasons against either party in failed to file an asylum application by United States less than one year—and immigration proceedings. Generalized, the deadline set by the immigration regardless of whether the alien is ad hominem allegations of bias or judge of September 3, 2014); Rageevan detained—until one year has elapsed impropriety are insufficient to v. U.S. Att’y Gen., 151 F. App’x 751, from the time of an alien’s arrival in the ‘‘overcome a presumption of honesty 753–56 (11th Cir. 2005) (affirming a United States before proceeding with and integrity in those serving as decision finding an alien’s opportunity the case to ensure that an alien is adjudicators.’’ Withrow, 421 U.S. at 47. to file for asylum abandoned for an alien provided one year in which to file for Accordingly, the Department declines to who arrived in the United States on asylum. To the extent that commenters’ accept commenters’ unfounded January 18, 2004, and failed to file a concerns on this point failed to address suggestions of bias. Chem. Found., Inc., complete asylum application by the relevant law or to engage with the 272 U.S. at 14–15 (‘‘The presumption of deadline set by the immigration judge of implications of their position, especially regularity supports the official acts of May 7, 2004); cf. Alsamhouri v. for detained aliens, the Department public officers, and, in the absence of Gonzales, 484 F.3d 117, 123 (1st Cir. finds them unavailing. clear evidence to the contrary, courts 2007) (‘‘The IJ was then well within his Under what is commonly referred to presume that they have properly discretion to find that, as against [the discharged their official duties.’’). alien’s] disregard of a known deadline, as the ‘‘one-year bar,’’ an alien seeking asylum must generally file his or her viii. Conflicts With the INA the government’s strong interest in the orderly and expeditious management of application within one year of arrival in Comment: Commenters argued that immigration cases justified the denial of the United States. INA 208(a)(2)(B), 8 the 15-day filing deadline conflicts with U.S.C. 1158(a)(2)(B) (providing that an the INA for multiple reasons. For a continuance.’’); (4) Federal case law holding that a filing deadline can be alien may not apply for asylum ‘‘unless example, many commenters argued that the alien demonstrates by clear and the 15-day filing deadline conflicts with applied to an application for withholding of removal under the INA convincing evidence that the the statutory one-year bar for asylum application has been filed within 1 year applications. INA 208(a)(2)(B), 8 U.S.C. and for protection under the CAT, see, e.g., Taggar v. Holder, 736 F.3d 886, after the date of the alien’s arrival in the 1158(a)(2)(B). Commenters further United States’’); see also 8 CFR argued that applying the 15-day filing 889–90 (9th Cir. 2013) (‘‘Taggar 1208.4(a)(2). An alien may be excepted deadline to aliens’ applications for separately argues that no deadline can from the one-year requirement due to withholding of removal and protection lawfully be imposed on applications for under the CAT conflicts with the Act relief under the Convention Against ‘‘changed circumstances [that] because Congress did not include any Torture. This is incorrect.’’); Lakhavani materially affect the applicant’s similar filing deadline requirement for v. Mukasey, 255 F. App’x 819, 822–23 eligibility for asylum or extraordinary those applications. See generally INA (5th Cir. 2007) (‘‘Other circuits have circumstances related to the delay in 241(b)(3), 8 U.S.C. 1231(b)(3). held that petitioners can waive CAT or filing an application within’’ the one- Response: As an initial point, most, if asylum claims by failing to raise them year period. INA 208(a)(2)(D), 8 U.S.C not all, commenters on this issue failed at the time designated by the IJ under 8 1158(a)(2)(D); see also 8 CFR to recognize or address (1) the existence CFR 1003.31. The IJ gave Lakhavani the 1208.4(a)(4) and (5). of the 10-day filing deadline in 8 CFR opportunity to file an application for The ability of immigration judges to 1208.5(b) with no noted challenges to its withholding at his April 2002 hearing, set and enforce filing deadlines for alleged inconsistency with the INA; (2) and he failed to do so. The BIA correctly applications does not conflict with the affirmed the IJ’s decision denying the longstanding ability of Department statutory one-year bar. Immigration Lakhavani leave to file an untimely adjudicators, under 8 CFR 1003.31(c) judges have long maintained the application for withholding of and Matter of R–R–, 20 I&N Dec. 547, authority to set and enforce time limits removal.’’ (internal citations omitted)); 549 (BIA 1992) (‘‘The Board has long on the filing of applications for asylum cf. Foroglou v. Reno, 241 F.3d 111, 113 held that applications for benefits under and withholding of removal in the the Act are properly denied as (1st Cir. 2001) (‘‘On review, Foroglou’s proceedings before them. See Matter of abandoned when the alien fails to main argument is that the Board’s time Jean, 17 I&N Dec. 100, 102 (BIA 1979) timely file them.’’), to set filing limit on petitions to reopen is itself (explaining that ‘‘it is well within the deadlines, including for asylum invalid because it would result in applications within one year of an denying relief to deportees who might authority of the immigration judge . . . alien’s arrival in the United States; (3) then suffer torture, contrary to the [CAT] to set reasonable time limits for the the affirmation of the enforcement of and to the policies embodied in federal filing of written applications for such deadlines by the Board and by legislation and regulations that asylum’’) Similarly, immigration judges Federal courts, including for deadlines implement the [CAT] or otherwise have long maintain the authority to set set well within one year of arrival, see, protect the rights of aliens. The short and enforce time limits on the filing of e.g., Matter of R–C–R–, 28 I&N Dec. 74, answer to this argument is that Foroglou applications for protection under the 75–77 (BIA 2020) (affirming a decision points to nothing in the [CAT] or CAT. Taggar, 736 F.3d 890 (holding that finding an alien’s opportunity to file for legislation that precludes the United immigration judges can set and enforce asylum abandoned for an alien who States from setting reasonable time deadlines for the filing of CAT entered the United States on March 13, limits on the assertion of claims under applications). This authority reflects 2019, and failed to file an asylum the [CAT] in connection with an ‘‘the government’s strong interest in the application by the deadline set by the ongoing proceeding or an already orderly and expeditious management of immigration judge of December 6, 2019); effective order of deportation. Even in immigration cases.’’ Gomez-Medina v. Jie Zhu v. U.S. Att’y Gen., 648 F. App’x criminal cases, constitutional and other Holder, 687 F.3d 33, 37 (1st Cir. 2012). 957, 960–62 (11th Cir. 2016) (affirming rights must be asserted in a timely Although Congress enacted a maximum a decision finding an alien’s fashion.’’); and, (5) the logical and legal outer limit of one year from arrival for opportunity to file for asylum ramifications of the position that an aliens to apply for asylum in INA abandoned for an alien who entered the immigration judge must wait in every 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B),

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nothing in that provision 45 or the INA including potential constitutional issues acknowledged the Department’s concern precludes immigration judges from related to prolonged detention. For regarding degradation or loss of setting a specific deadline for the filing example, under the commenters’ view, evidence, but they suggested a deadline of an asylum application in immigration a detained alien, such as one covered by longer than 15 days to balance evidence- proceedings in order to promote the the rule, could continue to delay his or related concerns with concerns that ‘‘orderly and expeditious management her proceedings up to a year after arrival aliens need adequate time to gather of immigration cases.’’ Gomez-Medina, without filing for asylum while evidence. 687 F.3d at 37. simultaneously raising arguments that Commenters suggested that the Moreover, if the Department accepted he or she should be released from Department should include an commenters’ logic, aliens in removal custody because the prolonged exception to the filing deadline for proceedings would, for example, be able detention has implicated constitutional pandemic-related delays, such as filing to delay their proceedings for up to a rights. See, e.g., Velasco Lopez v. delays due to COVID–19. year by simply stating that they intend Decker, 978 F.3d 842, 852 (2d Cir. 2020) Commenters asserted that aliens to file an asylum application by some (‘‘Detention under [INA 236(a),] should be granted a ‘‘per se extension’’ future date. See Matter of Jean, 17 I&N § 1226(a) is frequently prolonged whenever due process rights are Dec. at 102 (‘‘To allow otherwise would because it continues until all threatened, such as the right to counsel, permit a deportable alien to avoid the proceedings and appeals are to ensure those rights are not violated. conclusion of his deportation case and concluded.... The longer the For example, the commenters explained thus his departure by merely requesting duration of incarceration, the greater the that an alien who seeks to retain counsel the relief but not choosing to file the deprivation.’’). Nothing in INA should get an automatic extension on claims.’’). This is an erroneous reading 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B), the 15-day deadline to find of the statute and regulations and would however, contemplates its use as a basis representation who can assist with the eviscerate immigration judges’ ability to for either prolonging immigration application. The commenters predicted manage proceedings. See, e.g., 8 CFR proceedings or as a wedge to obtain an that the exceptions would render the 1240.1(c) (providing immigration judges alien’s release from detention, rule unworkable. the ability to ‘‘regulate the course of the especially in situations where Congress One commenter, who generally hearing’’). has otherwise indicated that supported the Department’s inclusion of Commenters’ reading of INA proceedings should be expedited. Cf. the 15-day submission deadline, 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) Matter of L–N–Y, 27 I&N Dec. 755, 759 recommended that the Department would also raise additional issues, (BIA 2020) (‘‘The Immigration Courts provide the same 15-day deadline for and the Board expedite the adjudication aliens in ‘‘withholding-only’’ 45 Congress enacted the one-year bar in INA of cases involving detained aliens, proceedings under 8 CFR 1208.2(c)(2). 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) against the recognizing the liberty interest of Response: The Department backdrop of longstanding Department regulations acknowledges and appreciates the and practice finding asylum applications to be detained aliens and the interest of the abandoned if they were not filed by a deadline Government to reasonably limit the commenters’ recommendations. It has specified by an immigration judge, e.g., Matter of expense of detention.’’). Additionally, if considered all of them and adopted one R–R–, 20 I&N Dec. at 549 (‘‘The Board has long held commenters were correct that INA as discussed below. Some that applications for benefits under the Act are recommendations are beyond the scope properly denied as abandoned when the alien fails 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) to timely file them.’’), and it could have easily provides an alien with an absolute right of this rulemaking and potentially phrased it in the affirmative to state that an alien to file for asylum at any time within one beyond the scope of rulemaking shall be afforded one year from the date of arrival year after arrival in the United States, altogether. For example, the Department in order to apply for asylum, rather than by framing cannot simply provide aliens a right to it in the negative as an outer deadline, INA then, by that same logic, the lack of a 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) (‘‘paragraph (1) filing deadline prior to the enactment of counsel or to personal translators in all shall not apply to an alien unless the alien that provision meant that previously immigration cases by regulation due to demonstrates by clear and convincing evidence that aliens had an absolute right to apply for the significant amount of Congressional the application has been filed within 1 year after appropriations—far in excess of EOIR’s the date of the alien’s arrival in the United States’’). asylum at any time after arrival. In other words, the statutory phrasing indicates that However, the Department is unaware of current budget—that would be required an alien has, at most, one year after arrival to apply any court adopting such a position, nor to effectuate such a rule. Further, as for asylum—not at least one year, as urged by is it aware of any court adopting the such a proposal was not part of the commenters. Moreover, Congress’s phrasing against NPRM—and implicates a potentially the backdrop of longstanding agency practice is view urged by commenters regarding additional evidence that the language in in INA the relationship between INA massive overhaul of immigration court 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) was not 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) and procedures—it would not be intended to displace the Department’s ability to set the 15-day deadline in the rule. In short, appropriate to include it in a final rule filing deadlines in immigration proceedings for without additional comment and study. asylum applications. Cf. NLRB v. Bell Aerospace although the Department acknowledges Co. Div. of Textron, Inc., 416 U.S. 267, 275 (1974) and has fully considered commenters’ Regarding recommendations related (‘‘[C]ongressional failure to revise or repeal the assertions on this point, it finds them to exceptions to the deadline, the agency’s interpretation is persuasive evidence that unavailing and unpersuasive for all of Department believes that the rule’s the interpretation is the one intended by the reasons given herein. allowance of an extension of that Congress’’). Indeed, as discussed, infra, if deadline for good cause addresses and commenters were correct, then the Department’s ix. Recommendations practice of setting filing deadlines prior to the responds to those recommendations, as enactment of INA 208(a)(2)(B), 8 U.S.C. Comment: Many commenters well as the continued availability of 1158(a)(2)(B) was arguably inappropriate because provided a wide range of continuances in appropriate cases, the INA provided no deadline for an alien to apply which is not affected by the rule. The for asylum and, thus—according to the commenters’ recommendations to the Department. logic—immigration judges could never have set a For example, commenters suggested Department recognizes that no rule can deadline consistent with the statute. However, there that if EOIR imposed this short cover every potential scenario, is no evidence, either before or after the enactment deadline, then government should particularly in the context of hundreds of INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) that of thousands of cases with asylum Congress intended to displace an immigration provide aliens with attorneys and judge’s authority to set filing deadlines in order to translators to ensure that they can meet applications. Consequently, it declines manage dockets efficiently. the deadline. Some commenters to establish any per se rules about

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whether an extension or a continuance that are incomplete or that have other not create a new completeness is warranted and expects that minor mistakes without providing any requirement for the submission of immigration judges will adjudicate such exceptions. Commenters explained that Forms I–589. Indeed, this requirement requests consistent with applicable law this provision would result in already exists in the relevant and mindful of an alien’s detention applications being rejected for regulations. See 8 CFR 1208.3(c)(3) (‘‘An status and the direction in 8 CFR technicalities or due to minor instances asylum application that does not 1208.5(a) to adjudicate such cases of confusion, citing, for example, include a response to each of the expeditiously. hypotheticals of the immigration court questions contained in the Form I–589, The Department agrees with the denying the application of an asylum is unsigned, or is unaccompanied by the commenter who recommended applying seeker without a middle name or required materials specified in the 15-day deadline to applications for children because the corresponding paragraph (a) of this section is statutory withholding of removal and name and children boxes were incomplete.’’); see also Form I–589 protection under the CAT for aliens in purposefully left blank. Instructions, Pt. 1, Sec. V. (‘‘You must proceedings under 8 CFR 1208.2(c)(2). Commenters asserted that the rule provide the specific information The Department sees no reason to was unnecessary and complained that requested about you and your family distinguish between aliens subject to the Department did not address why the and answer all the questions asked. If proceedings under 8 CFR 1208.2(c)(1) change was necessary—specifically, any question does not apply to you or and those subject to proceedings under why applicants could no longer you do not know the information 8 CFR 1208.2(c)(2), as both groups are complete their applications before the requested, answer ‘‘none,’’ ‘‘not generally detained. Moreover, the court during a hearing. applicable,’’ or ‘‘unknown.’’) (emphasis reasons underpinning the application Commenters also stated that it will be in original). This rule merely clarifies deadline for 8 CFR 1208.2(c)(1)—e.g., difficult, if not impossible, for some this existing standard by including the most aliens subject to the rule are applicants to submit a complete necessity to follow the Form I–589 detained, that aliens with meritorious application due to a lack of command of instructions and other filing-related claims have a strong incentive to obtain the English language, a lack of access to regulations. relief or protection—and potentially supporting evidence, and the effects of In response to commenters who release from detention—as quickly as trauma. Other commenters noted that requested an explanation for why possible, that aliens who have recently the structure of the form itself increases applicants would no longer be allowed claimed a fear of persecution or torture this difficulty because of the number of to supply missing information during a will be well-situated to perfect that questions and blank boxes; the hearing before an immigration judge, the claim quickly through the filing of an formatting of multiple boxes or lines per Department notes that such a process application, that filing deadlines are a questions; and a lack of clarity regarding does not comply with these existing 46 well-established part of immigration how to address a question that does not regulations. By ensuring that court practice and are utilized by courts apply based on answering ‘‘no’’ to the applications are complete at filing, the at all levels, that an even shorter filing immediately preceding question. parties and court can be confident that deadline has existed for many years for Commenters noted that their concerns they are proceeding with an a particular class of asylum applicants may be even greater in the future if DHS adjudication on the full application and, with no noted challenges or complaints, moves forward with codifying proposed as noted in the proposed rule, that the that delays in adjudication may risk amendments to the Form I–589, application is completed as timely as evidence degradation and may make it Instructions, which would add to the possible. Further, requiring a complete more difficult to obtain pro bono form’s length and general complexity. application protects the alien by Other commenters suggested that representation, that the deadline is not ensuring that there are no incorrect inaccuracies and mistakes will be absolute because it may be extended in assumptions regarding the facts of an inevitable for aliens subject to the filing appropriate circumstances, and that the alien’s claim or personal status as set deadline imposed by the rule. out in the application.47 Moreover, rule does not alter longstanding rules Numerous commenters compared the allowing applicants to complete and practices allowing aliens to rule’s requirement to what commenters applications in court is inefficient and supplement an application and to seek described as USCIS’s policy of rejecting uses valuable court time that is better to have an immigration consider late- applications that fail to follow form spent adjudicating issues in dispute. See filed evidence—apply with equal force instructions, namely answering every 8 CFR 1240.11(c)(3) (requiring a hearing to proceedings under 8 CFR question. Commenters explained that 1208.2(c)(2). Accordingly, in response to the USCIS policy has led to confusion 46 To the extent that immigration courts may have the recommendation of at least one and inconsistencies, and commenters previously failed to follow the existing regulations, commenter, the final rule adopts the predicted that the rule will create the Department reiterates that its employees are commenter’s suggestion and edits the expected to follow all applicable regulations. similar issues before the immigration 47 language in 8 CFR 1208.4(d)(1) to make The Department further notes that the recently- courts. finalized joint rule, Procedures for Asylum and the 15-day deadline, with the possibility Lastly, commenters expressed Withholding of Removal; Credible Fear and of an extension for good cause, concerns that the rule removes the Reasonable Fear Review, signed by the Attorney applicable to aliens in proceedings completeness determination from General and the Acting Secretary of Homeland under 8 CFR 1208.2(c)(2) seeking Security on December 2, 2020, codifies an immigration judges and places it on immigration judge’s authority to pretermit asylum statutory withholding of removal or untrained agency staff; such a shift, applications that fail to present a prima facie claim protection under the CAT. commenters alleged, is inefficient and for relief. See 85 FR at 36277. Even if that codification does not go into effect, immigration b. Concerns With Changes Regarding will further strain an already judges nevertheless possess authority to pretermit Refiling Incomplete Applications overburdened system. legally deficient asylum applications in certain Response: As an initial mater, instances. Id. Thus, this rule would ensure that i. Completeness Requirement commenters misconstrue the changes aliens are afforded all opportunities to correct implemented by this rule or fail to deficiencies in their applications in order to ensure Comment: Commenters expressed that their claim for relief is fully presented before concerns about requiring the acknowledge what the rule does not an immigration judge would consider any questions immigration court to reject applications actually change. For instance, it does of pretermission.

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on an asylum application only when been an existing requirement for many in an immediate ‘‘denial’’ of relief. necessary ‘‘to resolve factual issues in years, and the Department is unaware of Rather, incomplete applications will be dispute’’). As noted in the proposed any issues, challenges, or complaints returned to the applicants, who will rule, however, aliens may continue to regarding it previously. Thus, have 30 days to complete and return the supplement or amend a previously filed commenters’ suggestion that an existing application. This is discussed in more asylum application after the application regulation will lead to future confusion detail in section II.C.4.b.iii. is filed, subject to an immigration at EOIR is purely speculative and ii. Removal of Deadline for Immigration judge’s discretion. See 8 CFR 1208.4(c). unpersuasive. The Department also disagrees with Regarding concerns about applicants’ Court concerns regarding agency staff making past trauma and limited access to Comment: Many commenters objected completeness determinations rather evidence, and its effect on applicants’ to the proposed amendment at 8 CFR than adjudicators and categorically ability to complete their applications, 1208.3(c)(3) that an alien’s incomplete rejects the ugly, underlying insinuation the Department reiterates that the asylum application would not be that its legal support employees are too completeness requirement has existed deemed complete if the immigration ignorant or incompetent to determine for many years and that allegations of court failed to return the incomplete whether an application is complete. By trauma or access to evidence have not application within 30 days. Instead, the requiring all questions to be answered, previously been alleged to be such a immigration courts would continue to there is no room for discretion as to pervasive or systemic issue as to reject incomplete applications in a what responses are necessary; thus, all warrant an exception to the general rule ‘‘timely’’ manner but without a applicants are subject to the same that applications should be filled out maximum allowable period of time. requirements. Similarly, commenters completely. The Department certainly Commenters objected that the rule did not explain why the acceptance of recognizes the potential existence of would give the immigration courts an an incomplete application would be trauma for aliens with meritorious indeterminate amount of time to reject either desirable or efficient, and the claims and associated difficulties, but asylum applications for incompleteness. Department is aware of no bases for this rule, overall, helps ensure that such Commenters raised concerns that the doing so. The completeness requirement aliens receive expeditious consideration lack of a deadline would make provides a clear, logical, and of their claims and favorable proceedings less predictable and make it straightforward guidepost and one that adjudications so that they can obtain the more difficult for asylum seekers to most individuals understand. Moreover, relief they deserve without any undue appropriately budget their savings a completeness requirement has existed delay. Moreover, at a minimum, every before being able to possibly obtain in the regulations for many years with applicant must present his or her case work authorization. no noted difficulties; to the contrary, for adjudication, which requires filing Other commenters argued that the asylum applications have risen an application in accordance with the removal of the deadline for the significantly in recent years, even with regulations and form instructions. This immigration courts is contrary to the the requirement that the application be includes responding to every question Department’s justifications elsewhere in complete. See, e.g., EOIR, Adjudication on the Form I–589 and submitting any the rule to ensure that proceedings Statistics: Total Asylum Applications supporting evidence. occur in a timely and predictable (Oct. 13, 2020), https://www.justice.gov/ The Department rejects the notion manner and noted that shortening the eoir/page/file/1106366/download. that the completeness requirement is 30-day time period for the rejection of Immigration court staff receive training unnecessarily complicated or confusing, applications, rather than removing the on reviewing filings for sufficiency and and it is unaware of any situation—and deadline altogether, would instead be regularly reject deficient filings as part commenters did not provide one—in more efficient. Other commenters of their duties. which an incomplete application is argued that the Department did not Regarding commenters’ concerns deemed acceptable or even desirable. sufficiently justify this provision in about the grammatical structure of the Rather, the Department believes that general. Form I–589’s questions, the amount of incomplete applications may cause Further, commenters stated that the questions, or the English language confusion and that such confusion will rule’s requirement that immigration requirement, the Department notes that be eliminated by requiring applications courts return incomplete asylum this rule does not make any changes to to be fully completed before they are applications to applicants in a ‘‘timely the Form I–589 itself. Further, to the filed and accepted for adjudication. The fashion’’ to be vague and arbitrary and extent that commenters’ suggest that the Department believes requiring argued that the Department should Department should amend the Form I– completion of the Form I–589 will avoid provide some sort of definition or 589 to address such concerns, the potentially differing interpretations specific standard. At least one Department notes that although the from immigration staff as to what is commenter expressed concern that the Form I–589 is a shared form between ‘‘complete’’ and will prevent the standard is vague enough to allow EOIR and DHS, it is managed and possibility of uneven filing acceptance gamesmanship, citing a hypothetical updated by DHS. Accordingly, altering practices at the immigration courts. In where the immigration judge waits to the form is beyond the scope of this addition, by following this requirement, reject an application as incomplete until rulemaking and the Department’s applicants can ensure that they did not just after the alien’s one-year filing authority, and commenters’ concerns inadvertently fail to complete any fields deadline expires. about the form itself are most and can be confident that the Moreover, commenters expressed appropriately directed to DHS. immigration judge is adjudicating a general disbelief that the courts would Similarly, commenters’ concerns complete asylum application. return incomplete applications or alert about USCIS are beyond the scope of Lastly, commenters’ assertions that aliens of deficient applications in a this rulemaking, as USCIS is a separate incomplete applications will be rejected timely manner, noting, for example, agency beyond the purview of the and result in a denial of relief are general processing delays by USCIS or Department. Further, the Department incorrect. The return of an incomplete other agencies. reiterates that the completeness application is not an adjudication on the Commenters also thought it was requirement is not novel; rather, it has merits and does not automatically result generally unfair that asylum seekers

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would be held to time restrictions, such this change, the provision at 8 CFR its bearing on the case before being able as a 30-day correction deadline, while 1208.3(c)(3) is inconsistent with the to proceed to the merits of the case. In immigration courts are not held to a overarching requirement that aliens short, commenters did not identify any similar standard. must submit the asylum application in reasonable benefit provided by filing Response: As an initial point, the accordance with the instructions on the and accepting an incomplete Department categorically rejects the form—in other words, completely filled application and the Department is suggestion of at least one commenter out. unaware of any; moreover, the costs that an immigration judge would engage Additionally, the Department finds associated with such an application in in gamesmanship by purposefully that the removal of the 30-day return terms of the risk of an adverse delaying the rejection of an application period will better ensure that all asylum credibility finding, unfair surprise to the solely to be able to deny it.48 As claims before the immigration courts for opposing party, and overall inefficiency discussed, supra, commenters’ attacks adjudication are fully presented for in adjudicating the case all strongly on the integrity of immigration judges adjudication and review. Incorrectly militate in favor of the Department’s are unfounded and have no place in this deeming an incomplete application decision to replace the current rulemaking. complete does not ensure that the alien regulatory language with that contained Further, comments about USCIS are is able to fully pursue his or her claim in this rule. beyond the scope of this rulemaking, as as the missing information may in fact In addition, commenters are incorrect USCIS is a separate agency beyond the be integral to the alien’s claim for relief, regarding the effect this provision purview of the Department. USCIS is and the Department does not want to would have on the calculation of aliens’ part of DHS, while EOIR is part of the risk having an immigration judge possible eligibility for employment Department. See Department of consider an incomplete application authorization.50 To reiterate, existing Homeland Security, Operational and without the relevant information.49 For regulations already provide that the Support Components (Nov. 17, 2018), this reason, the Department further filing of an incomplete application does https://www.dhs.gov/operational-and- rejects commenters’ alternative not begin the timeframe by which DHS support-components. To the extent that suggestions that the Department should adjudicates an application for commenters have concerns about instead shorten the 30-day time period employment authorization based on an procedures utilized by USCIS, those as an alternative way to increase asylum application, and nothing in this concerns are most appropriately efficiencies. rule alters that longstanding principle. directed to DHS. In general, commenters failed to Accordingly, the Department disagrees As discussed above in section explain why the default in the existing that an alien who submits a Form I–589 II.C.4.b.i, all asylum applications must regulation—i.e., an immigration court that is incomplete would begin to be submitted ‘‘in accordance with the accepts an incomplete application— accrue time towards his or her instructions on the form.’’ 8 CFR based on a legal fiction that an employment authorization eligibility. In 1208.3(a). The instructions, in turn, incomplete application is deemed short, aliens seeking employment inform applicants that they ‘‘must complete if the immigration court fails authorization have an incentive to provide the specific information to return the application as incomplete submit a complete asylum application requested about [their] family and provides any benefit to the alien, DHS, as soon as possible, and nothing in this answer all the questions asked.’’ See or the immigration courts. To the rule either affects that incentive or Form I–589, Application for Asylum contrary, an application that is changes the Department’s position that and for Withholding of Removal, incomplete in fact—regardless of the submission of an incomplete whether it is ‘‘deemed’’ complete by Instructions, 5 (Aug. 25, 2020), https:// application does not begin the regulation—benefits neither the parties www.uscis.gov/sites/default/files/ timeframe to adjudicate an employment nor the immigration judge. It risks document/forms/i-589instr.pdf authorization application. (emphasis in original). Further, ‘‘[a]n creating credibility issues for the Commenters are incorrect that EOIR asylum application that does not respondent based on the parts that are will be unable to return incomplete include a response to each of the incomplete even if those parts do not go asylum applications in a timely manner questions contained in the Form I–589, to the merits of the claim. INA following the removal of the 30-day 208(b)(1)(B)(iii), 8 U.S.C. is unsigned, or is unaccompanied by the period. To the contrary, as discussed 1158(b)(1)(B)(iii) (inconsistencies may required materials specified in [8 CFR throughout this rule, EOIR has a form the basis of an adverse credibility 1208.3(a)] is incomplete.’’ 8 CFR powerful incentive to ensure that determination without regard as to 1208.3(c)(3). Accordingly, the proceedings are conducted in as whether they go to the heart of an Department disagrees with commenters’ expeditious manner as possible alien’s claim). It inhibits the ability of general concerns that the Department consistent with due process. The rule’s the opposing party—and potentially the should not remove the 30-day deadline ‘‘timely fashion’’ requirement obligates immigration judge—to prepare for a for the immigration court to return an immigration courts to act promptly in hearing on that application and risks incomplete application or else have the returning incomplete asylum application deemed complete. Without springing surprises on the opposing party at the hearing that may require a applications, and the insulting suggestion that EOIR’s employees lack 48 The Department notes, parenthetically, that the postponement to investigate further. It further increases inefficiency in the the competence or diligence to commenter’s hypothetical is also legally inaccurate. effectuate that requirement is An alien whose asylum application is filed before overall proceeding, particularly at the the one-year deadline but is rejected as incomplete merits hearing where the parties and the may be able to demonstrate extraordinary 50 As a general matter, the Department circumstances excusing the application of the immigration judge may have to go over emphasizes that questions of employment deadline provided that the alien refiles the each incomplete part first to determine authorization eligibility are adjudicated by DHS and application within a ‘‘reasonable period thereafter,’’ not by the Department. Indeed, that is why this rule which the 30 days allowed for by this rule would 49 Again, the Department reiterates that, as noted removes regulatory provisions from chapter V of 8 certainly be. 8 CFR 1208.4(a)(5)(v). Thus, the in footnote 47 above, this provision would further CFR pertaining to alien employment authorization. commenter’s hypothetical, even if it were realistic, benefit aliens who may wish to prevent an Nevertheless, the Department addresses would not result in the denial of the alien’s immigration judge from considering whether to commenters’ concerns to the extent they are application as untimely. pretermit an incomplete application. directly related to the provisions of this rule.

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unsupported. Immigration court staff high exceptional circumstances order to demonstrate extraordinary receive training on how to process standard. Commenters also claimed that circumstances and avoid the application filings, and defective filings are already applicants would not understand the of the one-year bar. 8 CFR subject to review and return, as rejection from the court nor how to 1208.4(a)(5)(v). Moreover, 30-day filing appropriate. remedy it. deadlines are already well-established Finally, the Department believes that Commenters also argued that the in immigration proceedings—e.g., a commenters are incorrect in asserting Department’s assertion that a 30-day motion to reconsider, 8 CFR that the rule is unfair because asylum period is sufficient for remediation of 1003.23(a)(1); an appeal to the Board, 8 seekers are being held to time application defects because of EAD CFR 1003.38(b)—and the resubmission restrictions, while immigration courts incentives is incorrect. Commenters of an asylum application is roughly are not. As discussed, supra, the disagreed with the Department analogous to these other procedures Department has powerful incentives to regarding this alleged incentive due to because it requires the correction of an promptly return incomplete asylum the combined effect of DHS’s recent initial determination. Accordingly, the applications to ensure efficiency, regulatory changes extending the Department finds that 30 days is an especially as the number of asylum minimum timeline for obtaining EAD appropriate amount of time to correct an applications file has risen eligibility and the Department’s incomplete asylum application and astronomically in recent years. EOIR, clarification in this rule regarding the disagrees that an additional 15 days Workload and Adjudication Statistics, 180-day timeline for the adjudication of would result in any meaningful benefit, Total Asylum Applications (Oct. 13, asylum applications. especially when aliens already have a 2020), https://www.justice.gov/eoir/ Response: As an initial point, strong incentive to file quickly in order page/file/1106366/download. Moreover, commenters provided no evidence that to begin the process of attaining the Department is held to a 180-day asylum applications are routinely filed eligibility for work authorization and adjudication deadline for asylum in such a grossly incomplete manner ultimately obtain relief or protection. applications absent exceptional with errors so great that they cannot be The Department rejects commenters’ circumstances, INA 208(d)(5)(A)(iii), 8 corrected within one month, and the assertions that the rule is both U.S.C. 1158(d)(5)(A)(iii), and that Department is unaware of any systemic redundant and unduly restrictive deadline is only triggered once an alien trend of asylum applications being filed because immigration judges already files a complete asylum application. in such a manner. Accordingly, the possess the authority to set filing Thus, there is no asymmetry between Department declines to address further deadlines and are able to extend these asylum seekers and the immigration commenters’ hyperbolic and unfounded deadlines without establishing courts; rather, both are held to assertions regarding the scale of exceptional circumstances. See 8 CFR intertwined and mutually-reinforcing deficiencies in initial asylum 1003.31(c). When an immigration judge deadlines regarding asylum applications. sets a filing deadline under 8 CFR applications. The Department rejects commenters’ 1003.31, he or she is setting a deadline assertions that that 30-day deadline to for the initial filing of applications and iii. 30-Day Correction Deadline re-file an application is too short, supporting evidence. If an applicant Comment: Commenters expressed arbitrary, or prioritizes efficiency above fails to comply with the deadline, the concern about the rule’s requirement all other concerns. The Department opportunity to file such applications or that aliens only be allowed a 30-day believes that 30 days is a reasonable evidence is deemed waived. Id. In period to re-file an application that is time period that balances both the time contrast, this 30-day deadline focuses rejected for being incomplete. necessary for a respondent to amend on applicants who have already According to commenters, the and return a complete application and attempted to file their application and imposition of a 30-day time period is the needs of the immigration court to must merely fix an incomplete arbitrary and too limited for aliens to operate efficiently. The Department application. This re-filing deadline correct any errors with the application notes that affected applicants must ensures that applications are ready for or gather missing evidence. Commenters necessarily have already attempted to adjudication in a reasonable time period asserted that by establishing such a file an application, so any additional and serves to increase the uniformity, timeframe, the Department is changes should be few in number and fairness, and efficiency of the inappropriately prioritizing efficiency limited only to those fields that were adjudication process. In addition, the over all other concerns. incomplete. Applicants in general must Department believes that the Some commenters requested that the meet their obligation to file an ‘‘exceptional circumstances’’ exception deadline, if any, be extended to 45 days application that is full and complete as is appropriate in this context because rather than 30 days. part of the applicant’s burden of proof the 30-day deadline commences only Commenters also worried the 30-day for relief as an initial matter and should after the initial filing period. correction deadline will lead to not be relying on this additional 30-day Additionally, as discussed, supra, the unnecessary and inadvertent waivers of time period to make significant changes Department notes that commenters’ aliens’ right to seek asylum. For to their applications. The Department concerns that general delays, including example, some commenters stated that a also notes that this 30-day timeline only mail carrier mistakes, could prevent failure by a mail carrier could result in applies to the Form I–589 itself and applicants from submitting the Form I– the foreclosing of relief. Other does not prevent applicants from filing 589 within the deadline are true for commenters expressed general disbelief additional supporting documentation every deadline—including other that the government will timely return after the deadline, provided such filings important 30-day deadlines such as for or alert aliens of deficient applications. comply with any deadlines set by the filing appeals to the Board, 8 CFR Some commenters asserted that the immigration court. 1003.38(b)—and that risk is not altered rule was both redundant and unduly Further, the 30-day timeline is fully by the rule. Again, the Department restrictive because immigration judges consistent with existing regulatory recognizes that no rule can cover every already possess the authority to set and provisions requiring the refiling of hypothetical scenario, and the existence extend filing deadlines without incomplete asylum applications ‘‘within of speculative assertions does not requiring the alien to demonstrate the a reasonable period’’ after return in warrant the removal of deadline

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requirements, particularly when other period for employment authorization as must separately justify the inclusion of similar deadlines have existed for years quickly as possible. a fee for the submission of a Form I–589 without the ‘‘parade of horribles’’ The Department acknowledges and cannot just rely on DHS’s posited by commenters occurring. The comments that the 180-day asylum determinations without independent Department believes—and commenters adjudication period in INA analysis or justification. have not meaningfully or persuasively 208(d)(5)(A)(iii), 8 U.S.C. The majority of commenters who disputed—that 30 days is a reasonable 1158(d)(5)(A)(iii), which this rule discussed the fee for asylum time period for applicants to correct incorporates as discussed, infra, applications raised concerns that minor mistakes and re-file the counter-balances the 180-day statutory asylum applicants would not be able to application. period before which an alien who has afford a $50 filing fee and that their As to commenters’ concerns regarding filed an asylum application can apply applications would be rejected as a applicants’ understanding of a rejection, for employment authorization under result.51 Accordingly, commenters the Department notes that the rule does INA 208(d)(2), 8 U.S.C. 1158(d)(2), but stated that the rule violates the United not change the rejection process. EOIR notes that counter-balanced system was States’ non-refoulement obligations. will continue to follow current practice established by Congress. Thus, to the Commenters provided a wide range of in rejecting documents, which includes extent that commenters disagree with reasons for why asylum seekers would returning the filing with an explanation the interplay of those statutory sections, not be able to afford the $50 fee, for the rejection. See Immigration Court their comments are beyond the including asserting that asylum seekers Practice Manual, Ch. 3.1(d)(i), https:// Department’s authority in this do not have the funds to pay such a fee www.justice.gov/eoir/page/file/1258536/ rulemaking and are more appropriately given that those seeking asylum are download (last revised July 2, 2020) (‘‘If addressed to Congress. The Department often fleeing conflict and arriving to the an application, motion, brief, exhibit, or disagrees that this system reduces an United States lacking any resources. other submission is not properly filed, alien’s incentive to file promptly for the Moreover, commenters stated that many it is rejected by the Immigration Court purposes of earning time towards asylum seekers are already severely with an explanation for the rejection.’’). employment authorization. Many impoverished, a condition which Commenters have not expressed asylum applications are not currently commenters claim has only been confusion with the existing process, and adjudicated within 180 days due to exacerbated by COVID–19. Several it is well-established. As such, the operational constraints and the size of commenters were especially concerned Department finds changes to these the pending caseload, and the presence that asylum seekers who are either existing processes unnecessary. of exceptional circumstances causes detained or subject to the Migrant Finally, the Department disagrees adjudicatory delays beyond the 180-day Protection Protocols (‘‘MPP’’) would be with commenters and reiterates the mark for other cases. Moreover, unable to pursue asylum applications discussion in the proposed rule that litigation has effectively forced DHS to due to an inability to afford the fee. aliens who seek to file asylum adjudicate employment authorization Commenters explained that detained applications are motivated to do so applications within 30 days after an asylum seekers are only able to earn a promptly in part because of the alien files such an application once the trivial amount of income in detention possibility of obtaining employment alien’s asylum application has been facilities and noted that many are authorization. See 85 FR at 59624. pending for the applicable period of currently quarantined, and unable to While employment authorization time, Gonzalez Rosario v. USCIS, 365 work at all, during their first 14 days in eligibility is adjudicated solely by DHS, F.Supp.3d 1156, 1163 (W.D. Wash. detention due to the COVID–19 the Department finds that the possibility 2018), and DHS’s efforts to change its pandemic. Similarly, commenters of employment authorization is regulations to adjust the time periods for explained that individuals subject to the generally a desirable benefit for asylum adjudicating such applications have also MPP have limited access to funds. seekers, and it is illogical that the been enjoined, Casa de Md. v. Wolf,— Several commenters also urged the possibility of obtaining such a benefit F.Supp.3d—, 2020 WL 5500165 (D. Md. Department to allow fee waivers for would not be a motivating factor to Sept. 11, 2020). Consequently, aliens asylum seekers, particularly for promptly file a complete asylum retain very strong incentives to file individuals who are detained or subject application. complete asylum applications as soon as to MPP. The Department disagrees that DHS’s possible, and nothing about this rule or extension of the waiting period to be the relevant statutory framework Commenters were also concerned eligible to apply for asylum-based with the possible impact that other reduces those incentives, particularly in 52 employment authorization from 150 light of the persistent litigation on this pending EOIR rules would have on days to 365 days would negatively affect issue. this provision. Commenters asserted this incentive, though it notes that that because these pending rules have DHS’s extension has been temporarily c. Submission of Form I–589 Fee not been published as final rules yet, it enjoined with respect to the individual Comment: Many commenters broadly is impossible for them to be able to fully members of the Plaintiff organizations, criticized the existence or requirement CASA de Maryland, Inc. (‘‘CASA’’) and of a fee for asylum applications, 51 DHS recently established a $50 fee for Form I– 589 submitted for the purposes of applying for Asylum Seeker Advocacy Project regardless of the dollar amount of the asylum in most circumstances. See 85 FR at 46791. (‘‘ASAP’’). See Casa de Md. v. Wolf,— fee. In addition, commenters objected to This fee would have entered into effect on October F.Supp.3d—, 2020 WL 5500165 (D. Md. the rule’s requirement that aliens must 2, 2020, but, as noted supra, it is currently enjoined Sept. 11, 2020) (preliminarily enjoining, submit a required filing fee in as a result of litigation. Immigrant Legal Res. Ctr. v. Wolf, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020) inter alia, DHS’s increase to the waiting connection with an asylum application (granting nationwide preliminary injunction barring period for employment authorization at the time of filing. Commenters stated DHS from implementing or enforcing any part of eligibility for individual members of that the Department failed to provide the rule). Plaintiffs CASA and ASAP). Rather, the any reasoning to justify the imposition 52 For example, some commenters were specifically concerned with the impact that the Department finds that the longer period of a fee or to consider the negative Department’s pending fee rule would have on this would only further increase the impact of the fee. At least one provision. See Executive Office for Immigration incentive for aliens to start their accrual commenter argued that the Department Review Fee Review, 85 FR 11866 (Feb. 28, 2020).

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comment on this rule’s provisions adds instructions regarding the EOIR, including the Form I–589, regarding the requirement to pay a fee. submission of the Form I–589 fee, if continue to be set by DHS. Rather, this Commenters further voiced concern any, to a provision of EOIR’s regulations rule merely clarifies when the Form I– about the alleged difficulties that that is topically specific to the 589 fee, as determined by DHS, must be unrepresented detained asylum seekers conditions and requirements for filing paid in the course of EOIR would face in trying to ‘‘fee in’’ a Form an asylum application. Although adjudications. I–589 with DHS due to the possible language already exists elsewhere in Nevertheless, even though these methods of payment. Similarly, EOIR’s regulations, see, e.g., 8 CFR concerns are outside the scope of this commenters stated that asylum seekers 1103.7(a)(3) (‘‘The Department of rulemaking, the Department disagrees in Mexico would not be able to visit a Homeland Security shall return to the with commenters’ concerns that a $50 DHS office in the United States to ‘‘fee payer, at the time of payment, a receipt filing fee is inappropriate or would be in’’ a Form I–589. Commenters further for any fee paid, and shall also return to unaffordable, thus discouraging or noted that children, who do not have the payer any documents, submitted preventing individuals from filing bank accounts or their own funds, with the fee, relating to any immigration meritorious asylum claims. Cf. Ayuda, would have unique difficulties paying a proceeding. The fee receipt and the Inc. v. Att’y Gen., 661 F. Supp. 33, 35 fee to submit the I–589. application or motion shall then be (D.D.C. 1987) (rejecting concern that Response: Overall, commenters’ submitted to the Executive Office for increased fees would limit access to concerns related to a fee for an asylum Immigration Review.’’), this amendment courts), aff’d sub nom. Ayuda, Inc. v. application were both beyond the scope is meant as an aid to the public should Att’y Gen., 848 F.2d 1297 (D.C. Cir. of the rulemaking and misguided or a fee be enforced at a future date. Thus, 1988). The Department has no inapposite in three principal respects. to the extent that commenters challenge evidence—and commenters did not First, few, if any, commenters the appropriateness of the prior provide any—to dispute DHS’s acknowledged that the INA authorizes promulgation of 8 CFR 1103.7(b)(4)(ii), assessment that a $50 fee ‘‘could be paid charging a fee for an asylum application, those concerns are also well beyond the in one payment, would not require an provided that such a fee does not exceed scope of this rulemaking. alien an unreasonable amount of time to the cost of adjudicating the application. To reiterate, as a general matter, save, would generate some revenue to INA 208(d)(3), 8 U.S.C. 1158(d)(3). commenters’ broad concerns regarding offset costs, discourage frivolous filings, Thus, to the extent that commenters the appropriateness of requiring a fee for and not be so high as to be unaffordable oppose charging a fee for an asylum asylum applications, the specific to even an indigent alien.’’ 84 FR at application under any circumstance and amount of the fee, and whether to allow 62320. Almost by definition, aliens believe that such a fee is unauthorized for a fee waiver for the Form I–589 are seeking asylum have demonstrated or unlawful, their comments are both outside the scope of this rule.53 DHS access to financial resources by the very beyond the scope of this rulemaking and determines the fee amounts for DHS- nature of their ability to travel to the are more appropriately addressed to maintained forms such as the Form I– United States, further suggesting that Congress. 589, and the Department did not change $50 is not an unreasonable amount to Second, few, if any, commenters this longstanding practice in this rule. charge for an asylum application.54 For acknowledged that the fee for an asylum See, e.g., 8 CFR 1103.7(b)(4)(ii) (‘‘The application is set by DHS because the fees for applications published by the 54 The Department also observes that most, if not asylum application is a DHS form. Department of Homeland Security and all, aliens seeking asylum have, almost by Longstanding EOIR regulations make definition, already demonstrated access to financial used in immigration proceedings are resources in order to travel to the United States, clear that ‘‘[t]he fees for applications governed by 8 CFR 103.7.’’) and further suggesting that $50 is not an unreasonable published by the Department of 1103.7(c) (‘‘No waiver may be granted amount to charge for such an application: Homeland Security and used in with respect to the fee prescribed for a While there’s no fee to apply for asylum, it’s not immigration proceedings are governed Department of Homeland Security form the case that there are no resources involved in the process. Those migrating from Europe or Asia need by [DHS regulations].’’ 8 CFR or action that is identified as non- to pay for transit to the United States, as well as 1103.7(b)(4)(ii). As stated in the waivable in regulations of the for visas allowing them onto U.S. soil. (You can’t proposed rule, given this longstanding Department of Homeland Security.’’). apply for asylum unless you’re in the United cross-referenced fee provision, the Overall the imposition of a non- States.) Those fees start at about $160. inextricable nature of the two agencies’ waivable $50 fee for the Form I–589 for If you’re migrating from Central America, you may need to pay to ensure you make it to the border asylum processes and the benefit of not the purposes of asylum is a decision safely. treating applicants differently for made by DHS following publication of The New York Times reported last year that a substantially similar benefits based on a proposed rule and the consideration of family from El Salvador paid $6,000 to smugglers whether they file with DOJ or with DHS, the public comments received thereon. to transport them to the U.S.-Mexico border. Part of the Department did not propose to alter the goal of the migrant caravans that have come See 84 FR 62280 (proposed rule), 85 FR north in recent months is to provide a low-cost, safe that provision. See 85 FR 59698. Thus, 46788 (final rule). This rule does not way for migrants to get north. this rule maintains the same provision amend the well-established regulatory Philip Bump, Most migration to the U.S. costs as proposed regarding a fee for an provisions distinguishing between fees money. There’s a reason asylum doesn’t. Wash. Post asylum application and does not impose for DHS forms and fees for EOIR forms, (Apr. 30, 2019) (referencing a New York Times report about an El Salvadorean family who paid a new fee for such an application. To and fees for DHS forms adjudicated by $6,000 to smugglers to transport them to the U.S. the extent that commenters challenge southern land border). Similarly, the Department the propriety of DHS assessing a fee 53 As noted supra, the $50 asylum application fee also notes that 85 percent of pending asylum under INA 208(d)(3), 8 U.S.C. 1158(d)(3) established by DHS is currently enjoined as the applicants in immigration proceedings, more than result of litigation. Immigrant Legal Res. Ctr. v. 507,000 cases, have representation. EOIR, Workload for an asylum application, their Wolf, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020) and Adjudication Statistics, Current Representation concerns are more appropriately (granting a nationwide preliminary injunction Rates, (Oct. 13, 2020), https://www.justice.gov/eoir/ addressed to DHS. Third, and relatedly, barring DHS from implementing or enforcing any page/file/1062991/download). Although some of this rule does not alter the longstanding part of the rule). Nevertheless, the response to those approximately 507,000 cases with commenters’ concerns in this section discusses the representation may have obtained representation procedures regarding how DHS forms enjoined $50 fee, as discussed by commenters, pro bono, most did not. As of September 30, 2020, are treated in immigration court. 8 CFR given the possibility of its future application as EOIR records identified approximately 14,400 1103.7(b)(4)(ii). Rather, this rule merely litigation proceeds. asylum cases with pro bono representation, out of

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similar reasons, the Department sees no application fee, the Department d. Impact on Discrete Populations 57 reason for DHS not to assess a $50 fee reiterates that it is not altering its Comment: Commenters raised a broad for asylum applications filed by longstanding treatment of fees related to range of concerns with respect to the categories of aliens cited by DHS applications. 8 CFR rule’s impact on various populations commenters: Aliens in detention, aliens 1103.7(b)(4)(ii). DHS has assessed a fee that commenters have identified as in removal proceedings who were for most asylum applications, and uniquely vulnerable groups, including, returned to Mexico pursuant to the concerns about the justifications for that inter alia, alleged victims of gender- 55 MPP, and children. The Department fee are beyond the scope of this based persecution, detained individuals, also notes that unverified generalized rulemaking. familyasylum applicants, indigenous statements and anecdotal reports about Regarding commenters’ concerns language speakers or non-English asylum seekers’ financial status do not speakers, children, teenagers in custody, about the interplay between this rule provide information about actual individuals with disabilities, LGBTQ and other rules proposed by the hardship, particularly when they do not individuals, and individuals with also address or account for how the Department, none of the Department’s mental-competency issues. Commenters alien obtained financial resources to pending rules would impact this were primarily concerned with the make the journey to the United States in provision. As noted in other rules, and ability of these categories of aliens to the first instance. as discussed above, DHS determines meet the 15-day filing deadline or 30- The Department further notes that an whether or not to impose filing fees for day re-filing correction deadlines. application for statutory withholding of asylum applications. None of the Commenters expressed concerns that removal under section 241 of the Act, 8 Department’s pending rules, including members of such groups need more time U.S.C. 1231, or protection under the its fee review, propose to change this than other applicants to prepare, regulations implementing the CAT does regulatory scheme. As such, submit, and present their cases in not require a fee. See 8 CFR 106.2(a)(20) commenters’ concerns over not being support of their applications for a (establishing a $50 fee when the Form able to fully comment on this provision variety of reasons. For example, I–589 is submitted ‘‘[f]or filing an without seeing certain pending rules commenters stated that due to severe application for asylum status’’). trauma or post-traumatic stress, some of Accordingly, commenters are incorrect published as final rules are unpersuasive. these populations might need additional that the rule violates the United States’ time and the assistance of medical and non-refoulement obligations set forth in In addition, regarding commenters’ mental health services to articulate their the 1951 Refugee Convention, the 1967 concerns about the ability of aliens to claims. Additionally, commenters Protocol, and the CAT. See R–S–C– v. pay the $50 fee given USCIS’s available stated, certain populations might face Sessions, 869 F.3d 1176, 1188 n.11 methods of payment and commenters’ unique difficulties obtaining (10th Cir. 2017) (explaining that ‘‘the concerns regarding the supposed corroborative evidence to support their Refugee Convention’s non-refoulement difficulties that detained unrepresented claims; for example, commenters stated principle—which prohibits the asylum seekers and aliens subject to that victims of gender-based violence deportation of aliens to countries where MPP will face in paying the fee, may have been prevented by their the alien will experience persecution— although such concerns are far beyond traffickers or perpetrators from owning is given full effect by the Attorney the scope of this rulemaking and more items that might serve as evidence. General’s withholding-only rule’’); appropriately addressed to DHS, the Commenters also asserted that some Cazun, 856 F.3d at 257 & n.16; Ramirez- Department does note that aliens who populations, such as children, might Mejia, 813 F.3d at 241; Maldonado, 786 need additional time to familiarize F.3d at 1162 (explaining that Article 3 submit payments to DHS for forms, applications, or motions for EOIR themselves with processes and become of the CAT, which sets out the non- comfortable with their advocates. refoulement obligations of signatories, adjudications may submit a wide range of payment methods to USCIS, Commenters asserted that some was implemented in the United States groups faced other unique challenges in including personal check, cashier’s by FARRA (Pub. L. 105–277, sec. preparing, submitting, and presenting 2242(b), 112 Stat. 2681, 2631–822) and check, certified bank check, bank their applications that may require its implementing regulations); see also international money order, or foreign additional time. For example, applicants Cardoza-Fonseca, 480 U.S. at 429, 441 draft drawn on a financial institution in submitting family-based claims might (‘‘[Withholding of removal] corresponds the United States and payable to the need child care during proceedings to Article 33.1 of the Convention.... ‘‘Department of Homeland Security’’ in because they may not want to speak [Asylum] by contrast, is a discretionary United States currency. In addition, about the harm they have suffered in mechanism which gives the Attorney aliens may have a third party provide front of their children. Additionally, General the authority to grant the the payment on their behalf. commenters stated, indigenous-language broader relief of asylum to refugees. As Nevertheless, as with the determination speakers may be unable to find an such, it does not correspond to Article of whether to charge a fee for the Form interpreter to translate the Form I–589 33 of the Convention, but instead I–589, the available methods of payment or documents for submission within the corresponds to Article 34.’’) (emphasis are determined by USCIS as the regulatory deadlines. Commenters in original). payment processing entity for the anecdotally asserted that some Regarding commenters concerns that immigration courts. See 8 CFR indigenous-language speakers did not the Department must separately justify 103.7(a)(1), 1103.7(a)(3).56 receive credible fear interviews before the establishment of an asylum

57 56 The Department further notes that USCIS The Department notes that many of the over 507,000 asylum cases with representation concerns commenters raised with respect to the accepts electronic payments in certain contexts, and overall. The ability of most aliens applying for effect that this rule would have on discrete asylum to retain representation at cost further the Department expects that the availability of populations are similar to concerns that suggests that a $50 fee is not unreasonable. electronic payment methods will continue to commenters also raised with respect to asylum 55 As mentioned in note 18, supra, DHS has expand over time. USCIS, Forms Available to File applicants, generally. To the extent there is overlap, determined to exempt UAC in removal proceedings Online (June 11, 2020), https://www.uscis.gov/file- the Department reiterates the discussion above in from the $50 fee. online/forms-available-to-file-online. section II.C.2.

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being placed into proceedings because violated. Lastly, commenters alleged that the timelines set are generally the government was unable to find an that the rule would violate the appropriate for the majority of cases for interpreter within the requisite period of Rehabilitation Act of 1973. See 29 the reasons discussed above, and that time. U.S.C. 794(a). determinations about extending such Commenters also asserted that some Response: The Department reiterates deadlines are more appropriately made applicants, such as children or those its response to similar comments, supra, on a case-by-case basis rather than with mental competency issues, need or and adds the following further response. providing a categorical exception for require counsel to assist with In general, commenters on this point certain types of applicants, as preparation, submission, and misapprehended the rule; provided commenters suggest. presentation of their claims. For speculative hypothetical generalizations Neither the 15-day filing deadline nor example, commenters explained that the that do not account for the case-by-case, the 30-day correction deadline imposes deadline would present challenges for individualized decision-making one-size-fits-all deadlines. In cases counsel working with children because associated with adjudicating asylum where applicants’ unique circumstances their age, development, dependence on applications; and made assertions necessitate additional time to prepare, adults, particular vulnerabilities, and rooted in the rule’s failure to align with submit, or present their asylum experienced traumas (if any) typically the commenters’ policy preferences, applications, the Department reiterates increase the time necessary to develop rather than the identification of specific that the immigration judge is authorized and corroborate their asylum claims. legal deficiencies or other factors the to consider extending these timelines on Further, commenters explained that Department should consider. See Home a case-by-case basis. See 8 CFR children in government custody would Box Office, 567 F.2d at 35 n.58 (‘‘In 1208.3(c)(3) (stating that failure to have a particularly difficult time determining what points are significant, correct deficiencies within 30 days will discussing the persecution they faced. the ‘arbitrary and capricious’ standard result in abandonment of an application Accordingly, commenters stated that of review must be kept in mind. Thus and waiver of the opportunity to file immigration judges should have only comments which, if true, raise such application ‘‘absent exceptional discretion to set and extend deadlines points relevant to the agency’s decision circumstances as defined in pursuant to children’s specific and and which, if adopted, would require a § 1003.10(b)’’); 8 CFR 1208.4(d) (stating, unique needs. change in an agency’s proposed rule with respect to the 15-day filing Additionally, commenters asserted cast doubt on the reasonableness of a deadline, that ‘‘[t]he immigration judge that recent changes to the law, such as position taken by the agency. Moreover, may extend the deadline for good Matter of A–B–, 27 I&N Dec. 316 (A.G. comments which themselves are purely cause.’’). In general, determining 2018), have rendered certain claims speculative and do not disclose the whether ‘‘good cause’’ or ‘‘exceptional uniquely complex. Some commenters factual or policy basis on which they circumstances’’ exist would likely asserted that Congress had recognized a rest require no response. There must be include consideration of the factors that specific obligation to treat children some basis for thinking a position taken commenters asserted arise with respect humanely and fairly, and EOIR had in opposition to the agency is true.’’). to the broad types of asylum applicants recognized that cases involving children Asylum seekers come from a wide identified by the commenters. could be uniquely complex. range of backgrounds and personal In addition, the Department notes that Commenters asserted that some circumstances, and the Department an immigration judge’s discretionary uniquely situated applicants, such as recognizes that no rule can account for determination with respect to whether detained individuals and children, the backgrounds and circumstances of an alien merits either an extension of already face logistical barriers to access the hundreds of thousands of aliens the 15-day deadline or demonstrated to counsel and legal information. who seek asylum. Nevertheless, the exceptional circumstances to extend the Accordingly, commenters asserted, such Department disagrees that the sorts of 30-day refiling deadline may be applicants may be especially speculative challenges raised by the appealed to the Board in cases where disadvantaged by the rule to the extent commenters are sufficient to outweigh the issue has been properly preserved that it would limit or further exacerbate the benefits obtained from this rule’s for appeal. Accordingly, further review their already limited access to counsel. implementation, including benefits that and protection is available for these Furthermore, with respect to would inure to those with meritorious classes of applicants. individuals with mental competency asylum claims. Further, in a vacuum, In short, the Department issues, some commenters expressed the Department has difficulty acknowledges commenters’ concerns concerns that issues of incompetence responding to commenters’ generalized about discrete groups of individuals and might not be identified until an statements about various populations, has fully considered them; however, the individual had made several court trauma experienced by those rule does not single out any discretely- appearances. One organization populations, and other asserted labeled groups, nor does it preclude the anecdotally stated that it had accepted difficulties because asylum applications groups identified by commenters from National Qualified Representative are adjudicated based on their specific pursuing their claims. To the extent that Program (NQRP) cases, see EOIR, facts, not on generalized speculative aliens within those groups have National Qualified Representative assertions.58 The Department believes meritorious claims, the rule will, in fact, Program (Feb. 18, 2020) (hereinafter ensure that those claims are adjudicated ‘‘EOIR, NQRP’’), available at https:// 58 For example, commenters’ concerns about expeditiously, especially for aliens in www.justice.gov/eoir/national-qualified- mental illness, trauma, and developmental detention. The rule also provides representative-program-nqrp, in which challenges may certainly fall within the rule’s good- sufficient safeguards in situations in cause exception for the filing deadline or within the which individuals may need additional detained clients had appeared in court exceptional circumstances exception to the for months before anyone raised the statutory 180-day adjudication deadline in time, and commenters’ unfounded issue of incompetence. Commenters also particular cases if those concerns are credible. generally asserted that the 15-day However, the Department cannot make a blanket credibility of such assertions will always be at issue deadline for submitting applications determination based solely on generalizations because they provide an exception to the general without context that such situations will always rule, and it is difficult, if not impossible, for the might would proceed in violation of constitute exceptions because each case is Department to make generalized credibility their rights such rights would be considered on its own merits. Moreover, the determinations in a rulemaking.

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assertions to the contrary are not requirements on applicants with of providing relief or protection to persuasive. The rule is consistent with disabilities, does not prevent applicants aliens with meritorious claims as due process, aids in the protection of with disabilities from participating in quickly as possible, especially those the groups identified, and provides immigration proceedings, and provides who are detained; and the risk of loss or benefits that far outweigh any concrete that immigration judges may extend degradation of evidence with the concerns raised by commenters. regulatory timelines in appropriate passing of time, the Department believes With respect to commenter concerns situations. the benefits of the rule, on balance, far regarding mental competency issues, the outweigh the speculative concerns e. Impact on Pro Se Aliens Department notes that there is existing raised by commenters. agency protocol for ensuring that Comment: Commenters were The Department further notes that proceedings involving such individuals concerned that the filing deadlines nothing in the rule prohibits nonprofit are fair, including forensic competency would disproportionately and organizations, pro bono groups, or any evaluations and implementing detrimentally affect pro se aliens and other class of representatives from safeguards, where appropriate. See interfere with the ability of those aliens taking an alien’s case at a later point in Matter of M–A–M–, 25 I&N Dec. 474, to seek and obtain counsel. As a result, the proceedings. An alien who obtains 474, 477, 480–81 (BIA 2011); EOIR, commenters alleged that the Department counsel may also choose a NQRP. The Department acknowledges, was engaging in a pattern or practice of representative at any point in the as commenters stated, that mental discrimination against a discrete and proceedings, including after filing an competency issues might arise after insular minority comprised of current application. Thus, pro se aliens have numerous hearings. However, as case and future pro se asylum applicants. more opportunities to obtain assistance law has always considered, mental The commenters alleged that the that many commenters suggested. competency ‘‘is not a static condition.’’ deadline deprived pro se asylum seekers The Department also notes that 85% Matter of M–A–M–, 25 I&N Dec. at 480. equal protection under the law and of aliens with pending asylum cases ‘‘It varies in degree. It can vary over therefore violated the Fifth have representation. EOIR, Adjudication time. It interferes with an individual’s Amendment’s equal protection Statistics: Current Representation Rates functioning at different times in guarantee. See U.S. Const. amend. V. (Oct. 13, 2020), available at https:// different ways.’’ Id. (quotation omitted). Further, for pro se aliens, commenters www.justice.gov/eoir//file/1062991/ Thus, immigration judges must were concerned that the rule’s deadlines download. For those who do not, there ‘‘consider indicia of incompetency were too short for pro se aliens to are multiple avenues they may pursue throughout the course of proceedings to complete the complex application on to obtain representation. See EOIR, Find determine whether an alien’s condition their own, particularly considering Legal Representation (Oct. 1, 2020), has deteriorated or, on the other hand, language barriers, trauma, education available at https://www.justice.gov/ whether competency has been levels, and lack of familiarity or eoir/find-legal-representation.59 restored.’’ Id. The Department notes that understanding of complex immigration Nevertheless, the Department has fully ‘‘neither party bears a formal burden of laws. considered the possible impacts of this proof to establish the respondent’s Response: The Department reiterates rule on the relatively small pro se mental competency or incompetency.’’ its response to similar comments, supra, population of aliens who seek asylum Matter of J–S–S–, 26 I&N Dec. 679, 681 and adds the following further response. before EOIR. However, the rule does not (BIA 2015). Thus, if an immigration In general, commenters on this point single such aliens out for particular judge observes indicia of incompetency, again misapprehended the rule; treatment under EOIR’s procedures. regardless of whether a party argues that provided speculative, hypothetical Moreover, immigration court procedures such indicia are present, an immigration generalizations that do not account for are generally not excused for pro se judge must make a competency the case-by-case and individualized respondents, just as they are not determination and implement the decision-making used to adjudicate excused generally for pro se civil appropriate safeguards, where asylum applications; and, made litigants. See, e.g., McNeil v. United necessary. Id. at 680, 681 (citing Matter assertions rooted in the rule’s failure to States, 508 U.S. 106, 113 (1993) (‘‘[W]e of M–A–M–, 25 I&N Dec. at 474, 477, align with the commenters’ policy have never suggested that procedural 480–81). preferences rather than the rules in ordinary civil litigation should Although an immigration judge must identification of specific legal be interpreted so as to excuse mistakes make a competency determination when deficiencies or other factors the by those who proceed without indicia of competency are present, this Department should consider. counsel.’’); Edwards v. INS, 59 F.3d 5, does not mean that an immigration The rule does not harm pro se aliens 8–9 (2d Cir. 1995) (rejecting a pro se judge should delay proceedings and does not impact the availability of alien litigant’s arguments for being indefinitely simply because indicia pro bono representation. To the excused from Federal court procedural might arise later in any particular case. contrary, expeditious consideration of The Department believes that the the asylum applications that detained 59 Although the Department acknowledges that existing protocols, in conjunction with aliens file may increase pro bono nonprofit organizations and pro bono volunteers, the immigration judge’s authority to representation. See, e.g., HRF Report like all legal representatives, may face unforeseen challenges confronting new rules or procedures, the extend filing deadlines in appropriate supra. To the extent that commenters Department is confident that such representatives situations and the various exceptions posited hypothetical scenarios about will be able to handle such changes, just as they do provided by the rule, are sufficient to particular characteristics of pro se in any other court system, and will continue to be ensure fairness towards applicants with aliens, the Department notes that if such able to provide assistance and resources to aliens in proceedings before EOIR. Moreover, as discussed mental competency issues. Moreover, scenarios are reflected by actual throughout this rule, most of this rule’s provisions the Department disagrees with applicants, then the immigration judge are simply codifications of longstanding principles commenter concerns that this rule can consider whether any factors that have been applicable to practitioners for years, would violate the Rehabilitation Act of referenced by the commenters warrant including the ability of an immigration judge to establish and extend filing deadlines, to introduce 1973. See 29 U.S.C. 794(a). This rule is an extension of the filing deadline. evidence, and to ensure asylum applications are broadly applicable to all applicants, Given the limited available avenues adjudicated consistent with regulatory and statutory does not impose any particular for relief or protection; the common goal authorities.

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requirements due to his pro se status). files/document/forms/i-589.pdf; U.S. remove political or foreign policy Although the Department acknowledges Citizenship and Immigration Services, influence from asylum determinations. the challenges faced by pro se litigants Form I–589, Application for Asylum and Commenters were also concerned that and recommends that all aliens obtain for Withholding of Removal, the ‘‘credible and probative’’ standard representation, nothing in the rule Instructions, OMB No. 1615–0067 (Aug. was a new, higher standard than the singles out pro se aliens or has the effect 25, 2020), available at https:// existing probative standard for of exacerbating their situation.60 www.uscis.gov/sites/default/files// evidentiary submissions and that the Further, there is at least a rational forms/i-589instr.pdf. Instructions to term ‘‘credible’’ only exists in asylum basis for the rule’s deadline. Form I–589 are available and written to law as it relates to oral testimony. Establishing a deadline, as explained in assist applicants with or without Commenters further claimed that 85 FR at 59694, reduces the risk of representation. See id.; see also note 26, requiring a ‘‘credible and probative’’ delayed filing, which, in turn, reduces supra (discussing the wide availability standard would limit or exclude the the risk of delayed grants of protection of information on applying for asylum, evidence that an alien could submit, or relief for meritorious claims and including information in multiple which would in turn violate an alien’s reduces the risk of degradation or loss languages). due process right to present evidence. of evidence over time. Cf. DeSousa v. Further, apart from seeking Moreover, commenters expressed Reno, 190 F.3d 175, 184 (3d Cir. 1999) representation, many pro se aliens may concern that the ‘‘credible and probative (‘‘[D]isparate treatment of different access various resources to assist them standard’’ could be used in conjunction groups of aliens triggers only rational in completing this form. Within the with a separate proposed rulemaking basis review under equal protection Department’s Office of Legal Access which would establish that evidence doctrine.... Under this minimal Programs, a wide variety of self-help promoting cultural stereotypes was standard of review, a classification is materials and legal centers, workshops, inadmissible, to inappropriately exclude accorded ‘a strong presumption of and orientations are available to assist evidence that would support an validity’ and the government has no aliens if they so choose. See Executive applicant’s claim. See 85 FR at 36264. obligation to produce evidence to Office for Immigration Review, Office of Specifically, commenters expressed sustain its rationality.’’) (citing Francis Legal Access Programs (Feb. 19, 2020), concern that immigration judges would v. Immigration and Naturalization available at https://www.justice.gov/ mischaracterize the ‘‘quality’’ of Serv., 532 F.2d 268, 272 (2d Cir. 1976) eoir/office-of-legal-access-programs. submitted evidence in order to bar (internal citations omitted). It is also Considering that aliens in asylum-and- admission of evidence that might consistent with a similar existing withholding-only proceedings are only support an applicant’s claim and, under deadline in 8 CFR 1208.5(b), a eligible for relief available through Form the other proposed rule, refuse to regulatory directive in 8 CFR 1208.5(a) I–589, see 8 CFR 1208.2(c)(3)(i), the submit evidence based on the substance. to adjudicate cases of detained aliens Department believes that the 15-day Commenters suggested that it would be expeditiously, and the longstanding deadline is sufficient to complete the inappropriate for immigration judges to authority in 8 CFR 1003.31(c) of Form I–589 and that 30 days is bar the admission of evidence that immigration judges to set deadlines. In sufficient to correct any deficiencies, might in substance support an short, the rule does not violate due including for a pro se alien. The applicant’s claim based on the ‘‘quality process for pro se aliens, just as it does existence of the possibility of an of the messenger.’’ Additionally, not violate due process for any category extension of those deadlines further commenters stated that the standard would minimize the value of non- of aliens. provides a safety net for pro se aliens to Additionally, the Department ensure that their applications are governmental sources such as non- disagrees that pro se aliens cannot meet completed in a timely and accurate governmental organization reports, the 15-day filing deadline or cure any manner. which commenters claimed were very reliable, and would thereby diminish deficiencies in their applications within 5. Concerns With Form I–589 30 days. The Form I–589 spans eight the credibility of such sources. Procedures Lastly, commenters requested the pages—plus an additional page for Department provide a definition of signatures and supplemental pages, as a. Supplementing the Record ‘‘credible and probative,’’ claiming that needed—and DHS estimates the time i. Evidence From Non-Governmental the standard was unclear and could fail necessary to review the instructions and Sources a vagueness challenge. complete and submit the form is 12 Comment: Commenters raised Response: As an initial point, hours. See U.S. Citizenship and concerns with the rule’s clarification on commenters did not generally explain Immigration Services, Form I–589, the evidentiary standards for the why it would be appropriate for an Application for Asylum and for admission of non-governmental source immigration judge to consider evidence Withholding of Removal, OMB No. evidence. Commenters claimed that the from non-credible source or that is not 1615–0067 (Aug. 25, 2020), available at rule would create a double standard by probative, and the Department is aware https://www.uscis.gov/sites/default/ treating governmental sources as of no such reason. Evidence from non- automatically reliable while requiring credible sources of that is not probative 60 There is no evidence that the shorter filing provides no assistance to an adjudicator deadline in 8 CFR 1208.5(b) has discriminated foreign government and non- against pro se aliens in any way, and commenters governmental sources to meet a almost by definition, and the did not allege that it had. Further, even if that ‘‘credible and probative’’ standard. Department is unaware of any deadline had a discriminatory impact, as Commenters stated that this was justification for allowing the commenters alleged the rule will, it would not— consideration of such evidence. and the rule does not—violate the Fifth particularly problematic because United Amendment’s equal protection guarantee, see U.S. States governmental sources are subject Similarly, commenters’ assertions that Const. amend. V., because it does not burden to political pressures and often do not immigration judges would fundamental rights. See Heller v. Doe, 509 U.S. 312, present accurate or complete depictions mischaracterize evidence rest on the 319 (1993) (affording a strong presumption of tacit suggestion that immigration judges validity to a classification that does not involve of conditions in other countries. One fundamental rights or proceedings along suspect commenter claimed that this would are incompetent or unethical and are lines). violate the Refugee Act, which aimed to either incapable or unwilling to adhere

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to applicable law. As discussed Cir. 2000) (finding a due process the Department of State, which has elsewhere in this final rule, that violation when the alien was not diplomatic and consular representatives assertion is unsupported and appears to provided a reasonable opportunity to throughout the world.’’ Matter of H–L– stem from the personal biases or policy present evidence). Instead, immigration H– & Z–Y–Z–, 25 I&N Dec. at 213. The preferences of commenters, rather than judges will continue to review all same logic applies to documents from any objective evaluation of immigration evidence presented and determine other United States governmental judges. Chem. Found., Inc., 272 U.S. at admissibility and weight accordingly. agencies within their areas of expertise. 14–15 (‘‘The presumption of regularity The rule is also not intended to make Based on this assessment, the supports the official acts of public any implicit negative judgments on the Department believes that immigration officers, and, in the absence of clear general credibility of foreign judges should continue to rely on evidence to the contrary, courts government or non-governmental United States governmental sources, if presume that they have properly sources and does not change the relevant or probative, and should discharged their official duties.’’). immigration judges’ process of weighing generally consider them as evidence Moreover, such unsupported and evidence in applying burdens of proof. when deciding an asylum case. The tendentious assertions provide no basis See, e.g., 8 CFR 1240.8 (burdens of proof Department notes that the rule does not for the Department to alter the NPRM. in removal proceedings). prevent asylum applicants from Further, this rule does not change the Moreover, the rule does not mean that submitting additional probative longstanding standards for the evidence from governmental sources is evidence from credible sources if they admission of evidence in immigration always admissible, as such evidence believe that evidence from a United proceedings—whether the evidence is must still be relevant or probative. For States governmental source has not probative and its admission is example, in an asylum case involving an provided a complete account of fundamentally fair. See Matter of Y–S– alien from Guatemala, the State conditions in a foreign country or from L–C–, 26 I&N Dec. 688, 690 (BIA 2015) Department report on conditions in arguing why, in a particular case, an (explaining that ‘‘the test for admitting Australia would not be probative of immigration judge should afford less evidence is whether it is probative and conditions in Guatemala. In general, weight to any particular evidence, its admission is fundamentally fair’’); however, State Department reports are including evidence from government Nyama v. Ashcroft, 357 F.3d 812, 816 considered ‘‘highly probative evidence sources. Similarly, the rule does not (8th Cir. 2004) (stating that the and are usually the best source of prevent the immigration judge from ‘‘traditional rules of evidence do not information on conditions in foreign weighing such information together in apply to immigration proceedings’’ and nations.’’ Matter of H–L–H– & Z–Y–Z–, making the judge’s final determination that the ‘‘sole test for admission of 25 I&N Dec. 209, 213 (BIA 2010) on whether the parties have met their evidence is whether the evidence is (abrogated on other grounds by Hui Lin burden of proof. probative and its admission is Huang v. Holder, 677 F.3d 130 (2d Cir. The Department disagrees with fundamentally fair’’) (quoting Espinoza 2012)); see also Sowe v. Mukasey, 538 commenters that this rule could be used v. INS, 45 F.3d 308, 310 (9th Cir. 1995)). F.3d 1281, 1285 (9th Cir. 2008) (‘‘U.S. in conjunction with an earlier proposed Once admitted, the immigration judge Department of State country reports are rule which, if finalized, would bar must then weigh the evidence to the ‘most appropriate and perhaps the admission of pernicious, unfounded determine whether the burden of proof best resource for information on evidence that is predicated upon has been met. See, e.g., Le Bin Zhu v. political situations in foreign nations.’ ’’) harmful stereotypes from being entered Holder, 622 F.3d 87, 92 (1st Cir. 2010) (quoting Kazlauskas v. INS, 46 F.3d 902, into the record, to improperly reject (affording less evidentiary weight to an 906 (9th Cir. 1995)); accord 8 CFR evidence that may support an unauthenticated foreign local 1208.11 (expressly allowing applicant’s claim. 85 FR at 6282; cf. government notice); Song Wang v. immigration judges to seek comments Matter of A–B–, 27 I&N Dec. at 336 n. Keisler, 505 F.3d 615, 622 (7th Cir. from the State Department regarding 9 (‘‘On this point, I note that conclusory 2007) (giving ‘‘little weight’’ to an asylum applications). In particular, assertions of countrywide negative unauthenticated foreign certificate). In State Department reports offer both a cultural stereotypes, such as A–R–C–G– weighing the evidence, the immigration country-wide perspective and localized ’s broad charge that Guatemala has a judge may look to the credibility of the comparisons that are particularly ‘culture of machismo and family source. The rule simply clarifies that relevant for internal relocation violence’ based on an unsourced partial foreign government and non- determinations, 8 CFR quotation from a news article eight years governmental 61 sources are not 1208.13(b)(1)(i)(B), (2)(ii), and are often earlier, neither contribute to an analysis automatically presumed credible, and missing from reports from other sources. of the particularity requirement nor evidence from these sources is not See, e.g., Department of State, Bureau of constitute appropriate evidence to presumed probative, as the prior Conflict and Stabilization Operations, support such asylum determinations.’’). regulatory language may have Northern Triangle Country Conditions: Both rules are ultimately about barring unintentionally implied. Ranking the Highest and Lowest Areas admission of baseless, incredible, and Contrary to commenters’ claims, this of Reported Homicides, Disappearances, non-probative evidence, whether clarification has no effect on the ability and Extortion (May 2019), https:// because of the source or the content of of aliens to present evidence. See, e.g., www.justice.gov/eoir/page/file/1180706/ the evidence. To the extent that Colmenar v. INS, 210 F.3d 967, 971 (9th download (discussing rates of commenters suggest that immigration homicides, disappearances, and judges would choose to bar evidence 61 The Department notes that, consistent with extortion at a municipality level in that does not support a particular common understanding and typical linguistic countries with high rates of asylum narrative, i.e., suggesting that usage, an alien testifying in support of his or her own application is not considered a ‘‘non- applications). immigration judges are partial to a governmental source.’’ Whether an alien’s Despite commenters’ concerns, once particular narrative or disposition, the testimony in support of his or her own application admitted as evidence, State Department Department strongly disagrees. As is credible will continue to be assessed based on reports warrant particular consideration discussed at length, infra, section applicable law. See, e.g., INA 208(b)(1)(B)(iii), 8 U.S.C. 1158(b)(1)(B)(iii) (outlining the bases for the because of their credible source: The II.C.5.a.ii, EOIR’s immigration judges are credibility determination of an asylum applicant). ‘‘collective expertise and experience of impartial adjudicators, and are not

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expected to predetermine the record. For example, commenters evidence’’) and 8 CFR 1240.1(c) (stating admissibility of evidence based upon expressed concern that the rule did not that immigration judges may ‘‘receive whether it supports a particular specify the period of time in which and consider material and relevant narrative. parties must respond to evidence evidence’’). Finally, the Department does not submitted by the immigration judge or Some commenters suggested that the believe that the credible and probative provide guidance that parties could rule was at odds with other recent standards require any additional respond to such evidence. Commenters agency rulemakings, such as 85 FR definitional language, as these have suggested that the rule’s language 36264 (addressing admissibility of been part of the evidentiary standards stating that parties should have an stereotype evidence) (proposed), and 85 for decades without apparent confusion. opportunity to respond or object to FR 52491 (limiting immigration judges’ See, e.g., Trias-Hernandez v. INS, 528 evidence was at odds with the chapter discretion by restricting their sua sponte F.2d 366, 369–70 (9th Cir. 1975) 3.1(b) of the Immigration Court Practice authority to reopen cases) (proposed). (applying the probative evidence test). Manual, which requires parties to Some commenters stated that the rule submit evidence at least 15 days before would be ineffective at addressing ii. Authority of the Immigration Judge inconsistencies and defects in To Supplement the Record a hearing. Commenters suggested that immigration courts, such as, the Comment: Commenters expressed immigration judges would not fairly commenters claimed, disparate patterns concerns that the rule would undermine hear challenges to the evidence the in immigration-judge decisions. the immigration judge’s neutrality or immigration judge may have submitted. Commenters stated that the rule would exacerbate an existing lack of neutrality. Some commenters speculated that similarly be ineffective at achieving its Specifically, commenters stated that the parties, particularly pro se immigrants purpose of allowing decisions to be rule would improperly expand an and vulnerable populations, would be made after full consideration of the immigration judge’s power and that too intimidated to raise objections to evidence. allowing immigration judges to evidence submitted by the immigration Some commenters stated that the rule introduce evidence into the record judge. Other commenters expressed would be inefficient at reducing conflicts with their role as neutral concerns that the rule failed to provide overloaded dockets because arbiters of the law. Other commenters guidance regarding what types of immigration judges would be complained that immigration judges are evidence immigration judges may responsible for searching for evidence already biased, citing some immigration include. Further, commenters opposed and consulting with parties about such judges’ previous employment history the rule because they claimed it failed evidence, which the commenter opined with DHS, decisions from the Federal to specify whether parties would have would require a great deal of time and courts that acknowledge biased the opportunity to submit comments or resources and result in more appeals to decisions from immigration judges, and objections in writing to evidence the Federal circuit courts. records alleging EOIR misconduct. submitted by the immigration judge. Commenters recommended a number Commenters stated that allowing Commenters were concerned that of changes to the rule, including immigration judges to submit their own non-English speakers would not allowing immigration judges to submit evidence would put them in the posture understand English-language documents only favorable evidence to the alien. of a prosecutor or defense attorney submitted by an immigration judge. Commenters suggested that such a rule rather than a judge. Some commenters Commenters stated that there was no would be similar to procedures already suggested that immigration judges provision allowing for a continuance for in place at other government agencies, would work in tandem with DHS the parties to review and respond to the such as the Social Security attorneys to deny asylum claims. newly introduced evidence. Administration and Department of Commenters stated that a rule that Commenters stated that the rule Veterans Affairs. undermined an adjudicator’s would violate section 240(b)(1) of the Commenters were concerned that the impartiality would undermine aliens’ Act, 8 U.S.C. 1229a(b)(1), which rule did not provide sufficient guidance due process rights. Commenters provides that ‘‘[t]he immigration judge regarding how immigration judges expressed concerns that immigration shall administer oaths, receive evidence, should consider and respond to judges would have pre-prepared country and interrogate, examine, and cross- objections to their admission of conditions evidence packets to submit examine the alien and any witnesses.’’ evidence on the record. during removal proceedings, which they Specifically, commenters asserted that Response: The Department reiterates alleged would be improper. Congress did not intend to confer its response to similar comments, supra, Commenters generally stated that this authority on immigration judges to and adds the following further response. rule would be harmful to aliens, and submit evidence because the statute As an initial point, few, if any, several commenters alleged that the rule specified only that the immigration commenters acknowledged that would be particularly harmful to certain judge may receive evidence but was immigration judges have been tasked discrete populations or pro se aliens. silent with respect to whether the with developing the record in asylum Commenters asserted that pro se aliens immigration judge could submit cases for many years, including by may be less able to present evidence on evidence. Commenters further stated submitting evidence on their own their own behalf in support of their that, prior to the IIRIRA amendments, authority, with no noted concerns, claims. Additionally, commenters stated the Act authorized immigration judges challenges, or complaints. See 85 FR at that the rule does not explicitly state to ‘‘present and receive evidence,’’ 59695 (collecting authorities). Indeed, whether pro se aliens will be told that which commenters believed further ‘‘various guidelines for asylum they have a right to object to the demonstrated that Congress did not adjudicators,’’ including ones such as evidence. intend for immigration judges to have the UNHCR whose views most Commenters expressed concern that the authority to submit evidence into commenters otherwise supported, the rule did not provide sufficient the record. Commenters similarly stated ‘‘recommend the introduction of guidance or protections for aliens in that the rule conflicts with the evidence by the adjudicator.’’ Matter of proceedings in which the immigration regulations at 8 CFR 1003.10(b) (stating S–M–J–, 21 I&N Dec. at 729 (citing judge introduces evidence into the that immigration judges may ‘‘receive UNHCR, Handbook on Procedures and

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Criteria for Determining Refugee Status and practice 62 and completely unaware of any reason to conclude that under the 1951 Convention and the inapposite to the purposes served by it would be. Further, such a procedure, 1967 Protocol Relating to the Status of evidentiary submissions in an which, again, is already commonly Refugees paras. 203, 204, at 48 (1992)). immigration hearing. employed by immigration judges, Thus, the rule merely codifies a long- The Department disagrees with particularly pursuant to Matter of S–M– accepted and well-recognized practice. commenters’ concerns that this rule J–, would not undermine the would undermine the immigration immigration judge’s neutrality or the As discussed, supra, the Department judge’s role as a neutral arbiter. The rule fairness of proceedings. The strongly disagrees with commenters’ amends the regulations so that immigration judge would weigh such suggestions that immigration judges are immigration judges may, in their evidence, like any evidence submitted biased or incompetent and will ignore discretion, consider evidence that has into the record pursuant to this rule, applicable law or make decisions on not been presented by the parties in against all other evidence of record in factors outside of the record and the order to make their determinations. issuing a final determination. Moreover, law. The Department is confident that Nothing in the rule has any bearing on to the extent that commenters’ concerns EOIR’s immigration judge corps adheres judicial interpretations of such are actually rooted in a tacit belief that to the highest levels of professionalism evidence. The Department fully expects, additional probative evidence exists that and will continue to apply their as mandated by regulation, that in has not been submitted by an asylum independent judgment and discretion, 8 complying with this rule, immigration applicant and would call into doubt the CFR 1003.10(b), when evaluating judges to continue to conduct validity of the applicant’s claim, the asylum applications. Generalized, ad themselves as neutral arbiters of the Department finds the suggestions that hominem allegations of bias or law. See 8 CFR 1003.10(b); see also 5 immigration judges should decide cases impropriety are insufficient to CFR 2635.101(b)(8). without as much probative evidence as ‘‘overcome a presumption of honesty Notably, immigration judges have possible or that it is preferable for and integrity in those serving as long had the authority and duty to immigration judges to decide cases with adjudicators.’’ Withrow v. Larkin, 421 manage immigration court hearings, less probative evidence utterly U.S. at 47. As such, the Department including creating and controlling the unpersuasive. declines to accept commenters’ broad record of proceeding, and to fully The Department reiterates its rejection and unfounded asseverations that develop the record, while impartially of any implication that EOIR’s corps of immigration judges are biased against adjudicating cases before them. 8 CFR immigration judges is biased. aliens and will utilize this rule to 1003.10(b); see also 8 CFR 1003.36 Immigration judges, who have been effectuate those biases. Chem. Found., (‘‘The Immigration Court shall create selected based on merit, are required to Inc., 272 U.S. at 14–15 (‘‘The and control the Record of Proceeding.’’). adjudicate cases in an ‘‘impartial It is also consistent with an immigration presumption of regularity supports the manner,’’ 8 CFR 1003.10(b), exercise judge’s duty to develop the record. See official acts of public officers, and, in ‘‘independent judgment and 85 FR at 59695 (collecting authorities). discretion,’’ id., and ‘‘should not be the absence of clear evidence to the Commenters’ suggestions that swayed by partisan interests or public contrary, courts presume that they have immigration judges might create clamor,’’ Executive Office for properly discharged their official standard country conditions packets of Immigration Review, Ethics and duties.’’). evidence that they might enter into the Professionalism Guide for Immigration Relatedly, most commenters failed to record did not explain why such Judges, sec. VIII (Jan. 26, 2011), recognize or acknowledge the inherent evidence would be inappropriate or available at https://www.justice.gov/ neutrality and impartiality of improper. As a matter of standard sites/default/files/eoir/legacy/2013/05/ immigration judges. See Executive practice, both parties already submit 23/EthicsandProfessiona Office for Immigration Review, Ethics standard (and voluminous) packets of lismGuideforIJs.pdf. Regardless of and Professionalism Guide for country conditions evidence of varying previous experience, immigration Immigration Judges, sec. V (Jan. 26, degrees of probative value. In cases judges are sworn in and governed by the 2011), available at https:// where country conditions evidence is same regulations and ethical standards www.justice.gov/eoir/sibpages/ lacking—e.g., the most recent relevant to be neutral and impartial. Nothing in IJConduct/EthicsandProfessionalism State Department Country Report on this rule affects those obligations, and GuideforIJs.pdf (‘‘An Immigration Judge Human Rights Practices—many commenters’ unfounded accusations of shall act impartially and shall not give immigration judges already provide bias leading to due process violations preferential treatment to any copies of such evidence to both parties. are insufficient to ‘‘overcome a organization or individual when Commenters did not explain why presumption of honesty and integrity in adjudicating the merits of a particular allowing immigration judges to provide those serving as adjudicators.’’ Withrow standard country conditions reports— 63 case.’’); see also 5 CFR 2635.101(b)(8) v. Larkin, 421 U.S. at 47. longstanding and credible sources of (‘‘[Federal Government] [e]mployees directly relevant information that 63 shall act impartially and not give Although the Department acknowledges prior frequently require the submitting party high-profile criticisms of immigration judge bias by preferential treatment to any private to print out hundreds of pages—would circuit courts, see, e.g., Islam v. Gonzales, 469 F.3d organization or individual.’’). Further, be improper, and the Department is 53, 56 (2d Cir. 2006) (‘‘Unfortunately, this is not the commenters failed to understand that first time that the courtroom conduct of IJ [Jeffrey] Chase has been later questioned by this Court. By evidence is designed to assist the 62 The Department further notes that complaints our count, this is the seventh time that we have factfinder—i.e., the immigration judge— of misconduct against immigration judges have criticized IJ Chase’s conduct during hearings. Our rather than to benefit one party over declined for three consecutive fiscal years, even as recent opinion . . . described IJ Chase’s ‘apparent the size of the corps has grown to its largest level bias against [the applicant] and perhaps other another. In short, commenters’ in the Department’s history. See EOIR, Adjudication Chinese asylum applicants,’ . . . and five summary tendentious views that immigration Statistics (Oct. 23, 2019), https://www.justice.gov/ orders in our Circuit have expressed similar judges are routinely biased against eoir/page/file/1163621/download; Immigration concerns about IJ Chase’s remarks and demeanor aliens and that the rule will promote Judge (IJ) Complaints (Oct. 2020), available at while conducting hearings.’’) (internal citations https://www.justice.gov/eoir/page/file/1104851/ omitted), and notes that commenters also cited to their biases is wholly unfounded in law download. Continued

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The Department rejects commenters’ the record would harm pro se aliens. To The Department disagrees with insinuations that immigration judges the contrary, immigration judges already commenters’ concerns that immigration would not be impartial in entering have a well-established obligation to judges would be unable to adequately evidence to the record or would only develop the record in cases of pro se address objections to evidence that they introduce evidence that would be aliens. See Mendoza-Garcia v. Barr, 918 submit. Immigration judges have been damaging to an alien’s claim. F.3d 498, 504 (6th Cir. 2019) (collecting hired based upon their merit and Immigration judges are bound by cases); see also Al Khouri v. Ashcroft, receive ‘‘comprehensive, continuing regulation to ‘‘resolve the questions 362 F.3d 461, 464–65 (8th Cir. 2004) training and support’’ directed at before them in a timely and impartial (‘‘[I]t is the IJ’s duty to fully develop the ‘‘promot[ing] the quality and manner.’’ 8 CFR 1003.10(b) (emphasis record. Because aliens appearing pro se consistency of adjudications.’’ 8 CFR added); see also 5 CFR 2635.101(b)(8) often lack the legal knowledge to 1003.0(b)(1)(vii). The Department (‘‘[Immigration judges] shall act navigate their way successfully through believes that immigration judges are impartially and not give preferential the morass of immigration law, and well-equipped to address any arguments treatment to any private organization or because their failure to do so raised with respect to evidence that they individual.’’). The rule permits successfully might result in their submit, including how to weigh that immigration judges to submit probative expulsion from this country, it is critical evidence against all other evidence of evidence from credible sources into the that the IJ scrupulously and record and, if appropriate, record. Such evidence may benefit conscientiously probe into, inquire of, acknowledging successful challenges to either party, depending on the larger and explore for all the relevant facts.’’) its admission. context and facts of the case, but the (citations and internal quotation marks Further, parties will have the purpose of the rule is not to assist either omitted). Further, this rule will ensure opportunity to object to the evidence, party. The purpose is to allow the pro se aliens, who may not be as aware and the Department expects that if adjudicator, consistent with current as an immigration judge of available parties have an objection, they will practice and case law, to develop the probative evidence from credible make it contemporaneously when the record sufficiently to make an informed sources of country conditions, receive immigration judge submits the evidence decision regarding the merits of the due process and full consideration of in order to preserve the issue for appeal. case. Allegations regarding whether their claims. This provision of the rule The Department believes that existing such procedures, which are already is consistent with an immigration appellate procedures would mitigate well-established, will benefit one party judge’s regulatory directive to ‘‘take any commenter concerns, though unfounded over another are both grossly action consistent with their authorities as an initial matter, that immigration speculative and wholly inapposite. under the Act and regulations that is judges may be unwilling to fairly Additionally, this rulemaking does not appropriate and necessary for the consider objections to evidence that bar parties from submitting their own disposition of [individual cases before they submitted or that parties may not evidence, so long as it is admissible. It them],’’ 8 CFR 1003.10(b); see also 85 have sufficient time to respond to such merely permits the immigration judge to FR at 59695, and the immigration evidence. submit additional evidence where judge’s unique role to ensure full With respect to commenter concerns necessary and in an exercise of consideration of all relevant evidence that non-English speakers may not be discretion, so that the immigration judge and full development of the record for able to understand English documents may render a decision based upon a cases involving a pro se respondent, see that the immigration judge may choose fully developed and probative record. Matter of S–M–J–, 21 I&N Dec. at 729 to submit into the record, the The Department disagrees with (noting that ‘‘various guidelines for Department notes that there is no commenters’ concerns that authorizing asylum adjudicators recommend the existing requirement for immigration the immigration judge to supplement introduction of evidence by the judges to translate documents submitted adjudicator’’). into evidence into an alien’s native federal court cases that discuss or touch upon Commenters’ concerns that, under language when developing the record. immigration judge bias, Ali v. Mukasey, 529 F.3d this rule, parties would not have the 478 (2d Cir. 2008); Wang v. Att’y Gen. of U.S., 423 See Matter of S–M–J–, 21 I&N Dec. at F.3d 260 (3d Cir. 2005); Zuh v. Mukasey, 547 F.3d opportunity to respond to evidence that 727 (observing that ‘‘if background 504 (4th Cir. 2008); Floroiu v. Gonzales, 481 F.3d the immigration judge submits, are information is central to an alien’s 970 (7th Cir. 2007); Tun v. Gonzales, 485 F.3d 1014 plainly refuted by the regulatory claim, and the Immigration Judge relies (8th Cir. 2007), the concerns reflected by these cases language, which requires that the parties are more than a decade old. More recent on the country conditions in information reflects that complaints of misconduct ‘‘have had an opportunity to comment adjudicating the alien’s case, the source against immigration judges have fallen for three on or object to the evidence prior to the of the Immigration Judge’s knowledge of consecutive fiscal years despite a significant issuance of the immigration judge’s the particular country must be made increase in the size of the corps. See Executive decision.’’ 8 CFR 1208.12(a). Office for Immigration Review, Adjudication Statistics: Immigration Judge (IJ) Complaints (Oct. Additionally, the Department has if the record already contains thousands of pages of 2020), available at https://www.justice.gov/eoir/ previously explained that requiring the country conditions evidence submitted by attorneys page/file/1104851/download. Nevertheless, to the immigration judge to provide a copy of for both parties and the immigration judge merely extent that commenters remain concerned about the submits the most recent State Department Country bias or other conduct of immigration judges, the submitted evidence to both parties was Report on Human Rights Practices that the parties Department notes that EOIR has developed a specifically intended to ‘‘give the parties simply forgot to submit, the opportunity to mechanism for raising such complaints specifically an opportunity to respond to or address comment should not be lengthy. In contrast, if an for the purpose of addressing bias by EOIR the information appropriately.’’ 85 FR at immigration judge submits hundreds of pages of adjudicators. See Executive Office for Immigration 64 country conditions evidence in a proceeding Review, EOIR Adjudicator Complaint Process 59695. involving a pro se alien who does not speak Summary (rev. Oct. 15, 2018), available at https:// English, then a continuance may be warranted to www.justice.gov/eoir/page/file//download (‘‘In 64 The NPRM declined to propose a bright line allow the alien an opportunity to comment on the instances where concerns regarding the conduct of rule for precisely how a party may have an evidence. The Department recognizes that the an immigration judge, board member, or opportunity to comment on the evidence because nature of the opportunity to comment will vary administrative law judge (collectively, adjudicator) the reasonableness of a party’s opportunity to from case to case based on the particular facts of arise, EOIR is committed to ensuring that any comment will vary based on the overall context of each case, and it expects immigration judges to allegations of judicial misconduct are investigated the case and the nature of the evidence the address such situations consistent with applicable and resolved in a fair and expeditious manner.’’). immigration judge proposes to submit. For example, laws and policies.

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part of the record’’ but nowhere in order to develop the record, see 85 FR docket-management issues. To the requiring that such information be at 59695 (collecting cases). As contrary, this rule empowers submitted in the alien’s native commenters noted, the statute does not immigration judges with additional language). Further, most commenters explicitly direct immigration judges to tools to resolve the cases before them failed to acknowledge that all evidence submit evidence into the record, but it based on a full and complete record. It submitted in an immigration hearing, does not purport to represent the does not mandate immigration judges regardless of who submits it, is to be complete and exclusive scope of introduce evidence in any case or submitted in English or with an English immigration judge authority with regard otherwise require additional work if an translation. 8 CFR 1003.33.65 to proceedings. Further, the Department immigration judge determines it is not Additionally, nothing in the statute or disagrees with commenters that the needed or would be inefficient in a regulations requires that evidence of amendments to the statutory language particular case. record be written or explained in the from ‘‘present and receive evidence’’ to Commenters made a number of respondent’s native language. Cf. Singh simply ‘‘receive evidence’’ indicate a recommendations regarding changes or v. Holder, 749 F.3d 622, 626 (7th Cir. prohibition on the ability of alternatives to this provision of the rule, 2014) (‘‘[i]n the immigration context, immigration judges to introduce including incorporating a checklist for personal service in English to a non- evidence, given the continued duty of immigration judges to follow to prevent English-speaker typically satisfies due immigration judges to develop the bias in assessing country conditions process because it puts the alien on record. See Constanza-Martinez v. evidence; altering the rule so that notice that further inquiry is needed, Holder, 739 F.3d at 1102 (‘‘The parties immigration judges do not submit leaving the alien to seek help from agree it is unclear why ‘present’ was evidence themselves but instead suggest someone who can overcome the removed from the INA. Even so, IJs to the parties the inclusion of evidence, language barrier.’’’); Ojeda-Calderon v. maintain an affirmative duty to develop such as country conditions evidence Holder, 726 F.3d 669, 675 (5th Cir. the record.’’).67 from the EOIR database, they would like 2013) (‘‘Due process allows notice of a Commenters’ concerns that the to consider; or only permitting hearing to be given solely in English to regulations do not allow immigration immigration judges to submit evidence a non-English speaker if the notice judges to submit evidence into the that is favorable to the alien. The would put a reasonable recipient on record need not be addressed because Department appreciates the notice that further inquiry is required.’’). this rule, enacted through the recommendations submitted by Finally, as discussed supra, and appropriate APA procedures, amends commenters, but each one is notwithstanding the longstanding rule the Department’s regulations to problematic, and none is preferable to that evidence must be submitted in specifically authorize immigration the rule. English or with a certified translation, judges to do so. Moreover, as discussed, For example, the suggestion for a the Department also expects supra, ample case law already provides checklist is premised on the assertion immigration judges to account for an a basis, independent of regulatory one, that immigration judges may be biased, alien’s native language when for immigration judges to submit but as discussed previously, that considering what opportunity to evidence. And, as also discussed assertion is wholly unfounded. provide to the alien to respond to elsewhere, the Department does not Moreover, immigration judges are well- evidence submitted by an immigration believe that this rule would undermine versed in assessing the admissibility judge, particularly for the small the neutrality of immigration judges and and weight of evidence, and there is no minority of aliens who are pro se.66 accordingly rejects commenters’ indication that a checklist would aid The Department disagrees with arguments that this rule conflicts with them in that regard. Suggesting that the comments alleging that the rule is the regulations requiring immigration parties introduce particular evidence, inconsistent with section 240(b)(1) of judges to act with impartiality. rather than allowing the immigration the Act, 8 U.S.C. 1229a(b)(1), which The Department disagrees with judge to introduce it, would not aid pro provides that ‘‘[i]mmigration judges commenter’s concerns that this se aliens who may lack the resources or shall administer oaths, receive evidence, rulemaking will overburden access to print tens or hundreds of pages and interrogate, examine, and cross- immigration judges and exacerbate of country conditions reports. Finally, examine the alien and any witnesses,’’ the suggestion that immigration judges 67 and commenters did not reconcile their See also 8 CFR 1003.10(b) (‘‘In deciding the only submit evidence favorable to aliens individual cases before them, . . . immigration would be anathema to an immigration interpretation of that provision with judges shall exercise their independent judgment case law allowing, if not also requiring, and discretion and may take any action consistent judge’s role as a neutral adjudicator and immigration judges to submit evidence with their authorities under the Act and regulations would violate both an immigration that is appropriate and necessary for the disposition judge’s ethical and professional of such cases.’’); 8 CFR 1003.36 (‘‘The Immigration responsibility obligations, see Ethics 65 The Department notes that there is no existing Court shall create and control the Record of requirement that evidence submitted by DHS be Proceeding.’’); Yang v. McElroy, 277 F.3d 158, 162 and Professionalism Guide for translated into an alien’s native language or even (2d Cir. 2002) (per curiam) (‘‘[T]he IJ whose Immigration Judges, sec. V (Jan. 26, that an alien’s representative translate all evidence decision the Board reviews, unlike an Article III 2011), available at https:// submitted on the alien’s behalf into the alien’s judge, is not merely the fact finder and adjudicator www.justice.gov/eoir/sibpages/ native language. but also has an obligation to establish the record.’’); 66 The Department notes that the State Richardson v. Perales, 402 U.S. 389, 410 (1971) IJConduct/EthicsandProfessionalism Department Country Reports on Human Rights (finding that an administrative law judge ‘‘acts as GuideforIJs.pdf (‘‘An Immigration Judge Practices, which are the most common evidence an examiner charged with developing the facts’’); shall act impartially and shall not give submitted by immigration judges, are available in Charles H. Koch, Jr. & Richard Murphy, preferential treatment to any multiple languages, including Spanish. See, Administrative Law and Practice § 5.25 (3d ed. Department of State, 2019 Country Reports on 2020) (noting that ‘‘[t]he administrative judge is organization or individual when Human Rights Practices Translations, available at pivotal to the fact-finding function of an evidentiary adjudicating the merits of a particular https://www.state.gov/2019-country-reports-on- hearing and hence, unlike the trial judge, an case.’’); see also 5 CFR 2635.101(b)(8) human-rights-practices-translations/ (last visited administrative judge has a well-established (‘‘[Immigration judges] shall act Nov. 20, 2020). Nothing in this rule precludes an affirmative duty to develop the record’’); Matter of immigration judge from providing a translated copy S–M–J–, 21 I&N Dec. at 729 (noting that ‘‘various impartially and not give preferential of the Country Report to an alien in addition to the guidelines for asylum adjudicators recommend the treatment to any private organization or English-language version. introduction of evidence by the adjudicator’’). individual.’’), and an immigration

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judge’s regulatory duty of impartiality, 8 explained that requiring asylum adjudication deadline for asylum CFR 1003.10(b) (‘‘In all cases, applications to be completed within 180 applications absent exceptional immigration judges shall seek to resolve days would not allow attorneys and circumstances, the Department notes the questions before them in a timely aliens sufficient time to prepare cases that deadline is established by statute, and impartial manner’’). for adjudication, would require INA 208(d)(5)(A)(iii), 8 U.S.C. The Department also disagrees with immigration judges to unfairly delay 1158(d)(5)(A)(iii), and cannot be altered commenters’ concerns that this non-asylum cases on their dockets, by rulemaking. Accordingly, such provision of the rule conflicts with would strip immigration judges of the concerns are beyond the scope of this recent rules proposed—and now ability to manage their dockets, would rulemaking and the Department’s finalized—by the Department, prevent asylum seekers from fully rulemaking authority and therefore specifically those (1) limiting EOIR presenting their cases due to a lack of more appropriately addressed to adjudicators’ sua sponte authority, 85 individual hearing slots, would result in Congress. FR 52491 (‘‘The Board shall not sua a significant number of suddenly Specifically, as commenters sponte remand a case unless the basis advanced hearings, would lessen the recognize, adjudicating asylum for such a remand is solely a question ability of asylum seekers to obtain applications within 180 days of filing is of jurisdiction over an application or the counsel, and would cause unsuccessful a statutory requirement set by Congress. proceedings.’’) (proposed)), and (2) applicants to be removed before See INA 208(d)(5)(A)(iii), 8 U.S.C. barring admissibility of stereotype pending ancillary relief with USCIS 1158(d)(5)(A)(iii). Therefore, issuing evidence, 85 FR 36264. could be adjudicated. regulations to implement this Regarding stereotype evidence, the Commenters claimed that Congress’s requirement effectuates congressional Department proposed to exclude the use of the word ‘‘shall’’ when discussing intent that asylum applications be admission of pernicious, unfounded the 180-day asylum adjudication promptly adjudicated.69 Complaints evidence that is predicated upon deadline was permissive rather than that the Department should not issue harmful stereotypes from being entered mandatory and, therefore, EOIR should regulations implementing this deadline into the record, 85 FR at 36282; cf. not issue regulations indicating a because immigration courts are Matter of A–B–, 27 I&N Dec. at 336 n.9, mandatory deadline. overburdened is not a valid reason to and finalized that proposal with some Commenters also raised concerns simply ignore congressional mandates. minor, non-substantive edits for clarity about the 180-day asylum adjudication Rather, ensuring that asylum in response to commenters’ concerns, deadline’s effect on child asylum applications are adjudicated within a Procedures for Asylum and Withholding applicants. Commenters stated that 180-day timeframe will help to decrease of Removal; Credible Fear and child applicants face unique challenges immigration court backlogs and ensure Reasonable Fear Review, signed by the in presenting their claims and are that asylum applicants are not forced to Attorney General and the Acting deserving of enhanced procedural wait in limbo in the United States for Secretary of Homeland Security on protections, such as an exception to the extended periods of time to receive a December 2, 2020. Nothing in this rule adjudication deadline. In addition, determination on their applications. would encourage immigration judges to commenters questioned whether the With regard to commenters’ concerns submit pernicious, unfounded evidence 180-day adjudication deadline would about the effect of the 180-day asylum that is predicated upon harmful apply to USCIS’s initial adjudication of adjudication deadline on the ability of stereotypes. As plainly noted in the asylum applications filed by UAC. asylum seekers to obtain counsel and regulation, evidence submitted by an Commenters were separately prepare their case, the Department again immigration judge must be ‘‘relevant concerned about the 180-day asylum notes that Congress set the 180-day . . . if the source is credible and the adjudication deadline and its effect on deadline. See INA 208(d)(5)(A)(iii), 8 evidence is probative,’’ see 8 CFR work authorization. Commenters stated U.S.C. 1158(d)(5)(A)(iii). By 1208.12(a), and evidence of pernicious that the rule would prevent asylum implementing this provision, Congress stereotypes about a country would not seekers from obtaining work necessarily expressed their belief that meet those criteria. authorization, particularly in light of 180 days is a reasonable time period for Commenters’ concerns with respect to recent DHS regulatory changes asylum seekers to prepare and present EOIR adjudicators’ sua sponte authority increasing the minimum wait time, their case once they have filed their is unrelated to this rulemaking. Indeed, which would result in the inability of application. In addition, the Department the rule focuses on the adjudication of asylum seekers to afford emphasizes that this 180-day asylum applications in pending cases, representation.68 Commenters adjudication period does not begin until whereas sua sponte authority is used to recommended that the Department the asylum application is filed and not reopen a case in which a decision has replace 8 CFR 1208.7 with language from when DHS serves the alien with a already been rendered. Nothing in the clarifying EOIR’s role in the work charging document or at some other present rule interacts with or is authorization process rather than earlier point in the proceeding. Once the connected to the Department’s proposal remove and reserve the section entirely, to limit the Attorney General’s which would remove guidance for the 69 To the extent commenters assert that the delegation of sua sponte authority to parties and the court from the Department failed to previously adhere to the law regulations. regarding this adjudication period, the Department EOIR adjudicators. acknowledges a lack of prior diligence in Response: The Department reiterates maintaining compliance. Nevertheless, there is no b. Asylum Adjudication Clock its response to similar comments, supra, reason to continue to ignore a clear statutory Comment: Commenters stated that, and adds the following further response. directive, and the Department has maintained a To the extent that commenters disagreed policy that seeks to comply with that directive for despite recognizing the statutory 180- more than two years. EOIR Policy Memorandum day asylum adjudication deadline in the with the general existence of a 180-day 19–05, Guidance Regarding the Adjudication of Act, INA 208(d)(5)(A)(iii), 8 U.S.C. Asylum Applications Consistent with INA 1158(d)(5)(A)(iii), it was unreasonable 68 This provision is currently subject to a § 208(d)(5)(A)(iii) (Nov. 19, 2018), available at for the Department to implement this preliminary injunction in Casa de Maryland v. https://www.justice.gov/eoir/page/file/1112581/ Wolf, No. 8:20–cv–02118–PX (D. Md. Sept. 11, download. This rule will bolster that policy and regulation due to the significant number 2020), appeal docketed, No. 20–2217 (4th Cir. Nov. further emphasize the importance of adhering to of pending cases at EOIR. Commenters 12, 2020). statutory directives.

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asylum application is filed, applicants the adjudication of other cases, the standard or working with DHS counsel and their attorneys would have Department believes that the timely to file a motion to dismiss based on a additional time within the 180 days to adjudication of asylum applications will pending application with USCIS. See 8 obtain any additional necessary help to reduce the immigration court CFR 1003.29, 1239.2(c). supporting evidence and to prepare for backlog, thereby allowing immigration The Department understands and has any hearings on the application, which judges to more quickly adjudicate the considered the comments related to the Department believes is a reasonable cases before them. UAC but finds them either largely time period, as reflected by the Regarding concerns about EOIR inapplicable to the rule, insufficiently congressional enactment. advancing hearings, the Department persuasive, or outweighed by the rule’s The Department disagrees with notes that such concerns are benefits to warrant changing the rule. commenters that this rule will prevent speculative, particularly in the current First, the timeframes applied by USCIS immigration judges from managing their operational environment in which many to adjudicating asylum applications dockets or providing sufficient hearing hearings are postponed due to the filed by genuine UAC are beyond the time to asylum applicants or that it will outbreak of COVID–19. Nevertheless, scope of this rulemaking because USCIS result in the unfair delay of non-asylum there is no reason to expect this rule to is a DHS component, and the cases. As an initial point, immigration result in an overwhelming number of Department offers no opinion regarding judge authority is circumscribed by both advanced hearings once EOIR’s USCIS’s views on section the Act and applicable regulations. 8 operating posture returns to normal, as 208(d)(5)(A)(iii) of the Act, 8 U.S.C. CFR 1003.10(b) (providing that most immigration judges already have a 1158(d)(5)(A)(iii). Second, for purposes ‘‘immigration judges . . . may take any significant number of deadline-eligible of immigration judge adjudication, the action consistent with their authorities asylum applications pending on their provisions of section 208(d)(5)(A)(iii) of under the Act and regulations that is immediate dockets. And, in the event the Act, 8 U.S.C. 1158(d)(5)(A)(iii), appropriate and necessary for the that an immigration judge does choose apply to ‘‘final administrative disposition of such cases’’) (emphasis to advance a case, practitioners can adjudication of the asylum application, added)), 1240.1(a)(1)(iv) (providing that request a continuance as appropriate, 8 not including administrative appeal’’ immigration judges have the authority CFR 1003.29, although as the and, thus, would only become in removal proceedings ‘‘[t]o take any Department has discussed, supra, it is applicable to the asylum application other action consistent with applicable not clear why aliens with valid asylum filed by a UAC in removal proceedings law and regulations as may be claims would desire further delay in the after that application has been returned appropriate’’) (emphasis added)). Thus, adjudication of their case. by USCIS back to the immigration court the codification of a statutory The Department also disagrees with following USCIS’s decision not to grant requirement in the Act in applicable commenters that this provision raises it. In other words, the 180-day regulations does not alter the pre- due process concerns. In immigration adjudication deadline in immigration existing limits on an immigration proceedings, due process concerns are proceedings for an asylum application judge’s authority. Further, this rule only implicated if proceedings are ‘‘so filed by a UAC in removal proceedings makes no changes to immigration fundamentally unfair that the alien was would not be triggered until after USCIS judges’ authority to manage their prevented from reasonably presenting has made its initial determination on dockets, and commenters have not his case.’’ Gutierrez v. Holder, 662 F.3d that application under section adequately explained how 1083, 1091 (9th Cir. 2011) (citations 208(b)(3)(C) of the Act, 8 U.S.C. implementing a statutorily-required omitted). Requiring asylum applications 1158(b)(3)(C). Moreover, nothing in this adjudication deadline, which to be adjudicated within 180 days of rule affects USCIS’s initial adjudication immigration judges are already expected filing, as explicitly required by statute, of asylum applications filed by UAC. Id. to follow as a matter of both law and does not itself make proceedings Significantly, Congress did not policy would alter this authority. See 8 fundamentally unfair or prevent an exempt UAC asylum applications from CFR 1003.10(b). The Department has no alien from exercising the statutory right the provisions of section concerns that immigration judges will to present evidence. See INA 208(d)(5)(A)(iii) of the Act, 8 U.S.C. fail to provide sufficient hearing time to 240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B). For 1158(d)(5)(A)(iii), as it did for other asylum applicants as necessary to the example, detained applicants routinely provisions. Compare INA 208(a)(2)(E), 8 adjudication of the application. See, have their applications adjudicated U.S.C. 1158(a)(2)(E) (exempting UAC e.g., INA 240(b)(1), 8 U.S.C. 1229a(b)(1) within 180 days without apparent due asylum applications from limitations (providing immigration judges with process concerns stemming from this imposed by asylum cooperative authority to ‘‘receive evidence, and timeframe. agreements and the one-year filing interrogate, examine, and cross-examine In regard to concerns about the deadline). This evinces congressional the alien and any witnesses’’); 8 CFR asylum adjudication deadline and its judgment that all asylum applicants 1240.11(c)(3) (requiring a hearing on an effect on pending non-asylum should have their applications asylum application only ‘‘to resolve applications with USCIS, the adjudicated within 180 days of filing, factual issues in dispute’’). Department notes that this rule does not regardless of the applicant’s individual In regard to commenters’ concerns make any changes for non-asylum characteristics or status. This also makes that adjudicating asylum applications applications, including those pending particular sense for UAC asylum within the statutorily-mandated with USCIS. Moreover, a separate applications, as USCIS will already have timeframe will prevent immigration pending application with USCIS does adjudicated their asylum application, judges from adjudicating other cases, not prevent the immigration court from and the child applicant will only be the Department notes that this rule does proceeding on the asylum application to renewing that application with EOIR, as not prioritize any application or case ensure its timely adjudication. In opposed to submitting an entirely new over another. Rather, the rule merely addition, once the immigration court claim. implements a statutorily-mandated has timely adjudicated the asylum In short, the Department has fully adjudication deadline for asylum application, this rule does not prohibit considered the issues raised by applications. To the extent that applicants from requesting a commenters pertaining to UAC. As implementing this deadline may affect continuance under the ‘‘good cause’’ noted, most of the concerns reflect a

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misapprehension of the rule’s contents, and the current representation rate of Similarly, commenters stated that the are directed at statutory provisions that 85% strongly suggests it has not Department should not mirror the cannot be changed by rulemaking, or impacted an alien’s ability to obtain statutory ‘‘exceptional circumstances’’ confuse adjudications by the representation. definition in section 240(e)(5) of the Department with those by USCIS. The Lastly, the Department considered the Act, 8 U.S.C. 1229a(e)(5), because failing Department is aware of the special commenters’ suggestion that, rather than to appear at a hearing has different circumstances and needs of genuine remove and reserve existing 8 CFR equities than needing more time to UAC and maintains clear policies to 1208.7, the Department should amend 8 support an asylum application. ensure that their cases are adjudicated CFR 1208.7 with clarified regulatory Commenters also stated that the efficiently and consistent with due language regarding EOIR’s role related exceptional circumstances requirement process. See EOIR, Operating Policies to work authorization. After should apply to DHS attorneys and the and Procedures Memorandum 17–03: consideration, the Department immigration judge as well. One Guidelines for Immigration Court Cases continues to believe that regulatory commenter likewise requested that the Involving Juveniles, Including language regarding work authorization Department modify the final rule to Unaccompanied Alien Children (Dec. is better located solely within DHS’s explicitly include immigration judge 20, 2017), available at.gov/eoir/file/ regulations because DHS has sole requests for Department of State oppm17-03/download. Nothing in the authority over work authorization. comments to qualify as an exceptional rule alters those policies, and the Further, as discussed in the NPRM, circumstance. Department finds that the rule will not removing and reserving 8 CFR 1208.7 Response: In regard to concerns with have any greater effect on UAC than on would avoid any potential future the ‘‘exceptional circumstances’’ any other group of aliens. If anything, conflict should DHS amend 8 CFR standard, the Department first notes that the rule will have minimal to no effect 208.7. See 85 FR at 59695. In short, Congress mandated this standard. See on UAC because they are unlikely to fall EOIR plays no part in adjudicating INA 208(d)(5)(A)(iii), 8 U.S.C. within the classes of aliens in 8 CFR applications for alien EADs, and there is 1158(d)(5)(A)(iii). The Department has 1208.2(c) and their asylum applications no reason to maintain vestigial reasonably chosen to interpret this are subject to INA 208(d)(5)(A)(iii), 8 regulations related to a process in which language in accordance with its explicit U.S.C. 1158(d)(5)(A)(iii), regardless of EOIR has no role.70 definition elsewhere in the statute to this rule. Accordingly, on balance, Comment: Commenters were opposed ensure consistency within the statute commenters’ assertions regarding the to the rule’s ‘‘exceptional and the long-held definition used by rule’s impact on UAC are unfounded circumstances’’ definition, stating that parties and the courts. See INA and ultimately unpersuasive. there are many situations that may not 240(e)(1), 8 U.S.C. 1229a(e)(1). The In response to commenters’ concerns rise to the level of exceptional Department acknowledges commenters’ about this rule’s effect on the ability of circumstances as defined in the rule but concerns that there may be aliens to receive work authorization, nevertheless should be sufficient to circumstances in which an alien may particularly in light of recent DHS grant additional time beyond 180 days. not meet the standard, but that is true regulatory changes, the Department As examples, commenters pointed to of any standard. Congress provided an notes that Congress explicitly intended asylum seekers requiring mental health undefined standard in the Act, and the for asylum applications to be services before they can fully discuss Department has determined that an adjudicated before the asylum seeker is their asylum claim or the need to obtain existing statutory definition elsewhere eligible for work authorization. corroborating evidence from their home in that statute is a reasonable Compare INA 208(d)(5)(A)(iii), 8 U.S.C. countries. Commenters stated that the interpretation of a phrase connoting 1158(d)(5)(A)(iii) (requiring definition as drafted would result in circumstances that are generally adjudication of asylum applications increased appeals and remands. considered ‘‘severe impediments.’’ See within 180 days of filing), with INA Chevron, 467 U.S at 844 (requiring 208(d)(2), 8 U.S.C. 1158(d)(2) 70 The Department notes that retaining 8 CFR deference to an agency’s reasonable (permitting work authorization only 1208.7 would have no effect on EOIR operations— interpretation of an ambiguous statute); other than risking confusion by the parties after a minimum of 180 days has regarding which agency is responsible for see also Singh-Bhathal v. INS, 170 F.3d elapsed from the filing of an asylum adjudicating an EAD application—because its 943, 947 (9th Cir. 1999) (interpreting application). In this manner, eligibility previous provisions simply do not apply to EOIR. exceptional circumstances to involve for worth authorization is meant to be To the contrary, EOIR already excludes applicant- ‘‘severe impediment[s]’’). Commenters caused delays that meet the exceptional the exception for aliens whose cases circumstances standard from calculating the have not provided support for the exceed the reasonable period of time for statutory 180-day asylum adjudication clock as contention that implementing such a adjudication, as set by Congress, but not noted in 8 CFR 1208.7(a)(2). See EOIR Policy definition will result in increased the standard or expectation for asylum Memorandum 19–05, Guidance Regarding the appeals or remands or explained why Adjudication of Asylum Applications Consistent seekers as a matter of course. with INA § 208(d)(5)(A)(iii) at 2–3 (Nov. 19, 2018) the Department should not adopt a Relatedly, and contrary to (‘‘But, absent delays that qualify as exceptional compelling existing statutory definition, commenters’ assertions, this rule does circumstances, 8 CFR 1208.7(a)(2) does not relieve particularly one that comports with not interfere with an asylum seeker’s Immigration Judges of their obligation to adjudicate common-sense notions of ‘‘exceptional asylum claims within 180 days.’’), https:// statutory right to representation, INA www.justice.gov/eoir/page/file/1112581/download. circumstances.’’ 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A), Further, although EOIR provides DHS with access The Department declines to create any due to an inability to receive work to a separate ‘‘clock’’ for purposes of adjudicating specific exceptions to the definition, authorization and thus afford an EAD applications, EOIR does not adjudicate EAD and it recognizes that no rule can cover applications themselves and, thus, does not attorney. Rather, aliens who are unable interpret the time period related to EAD every possible factual scenario, to afford fee-based counsel may seek pro applications in INA 208(d)(2), 8 U.S.C. 1158(d)(2). particularly when considering the bono representation or avail themselves Accordingly, although retention of 8 CFR 1208.7 existence of more than 500,000 pending of other programs to obtain information would not alter EOIR’s existing processes, its asylum applications currently. See superfluousness and the risk of confusion related to to prepare their cases. Moreover, as maintaining it regarding which agency is Executive Office for Immigration noted supra, this statutory provision has responsible for adjudicating EAD applications Review, Adjudication Statistics: Total been in effect for more than 20 years, militate strongly in favor of removing it. Asylum Applications (Oct. 13, 2020),

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available at https://www.justice.gov/ appropriate and determinations prepare and file asylum applications eoir/page/file/1106366/download. Thus, regarding which facts may meet the that, according to commenters, would although the Department has considered standard are more appropriately made be unprovable if the rule is applied commenters’ suggestion to list on a case-by-case basis by an retroactively. Furthermore, commenters Department of State comment requests immigration judge. asserted that asylum seekers likely as constituting an extraordinary Finally, in response to other would have made different decisions circumstance, see 8 CFR 1208.11, the commenters’ concerns, the Department when pursuing immigration relief had Department declines to provide that notes that the definition of exceptional they known the rules would change specific exception. Rather, the circumstances is not limited to before their claims were adjudicated. Department will allow immigration circumstances faced by aliens. Although Commenters stated that the Department judges, who are better positioned to the rule provides examples of failed to adequately consider such evaluate the specific facts in each case, exceptional circumstances that may reliance interests on the current legal to make a case-by-case determination on affect the alien, which the Department structure. Several commenters were also whether extraordinary circumstances excepts will be the most common specifically concerned with the impact exist. See, e.g., Arredondo v. Lynch, 824 situation, the rule explicitly states that that retroactivity would have on pro se F.3d 801, 805 (9th Cir. 2016) (explaining exceptional circumstances are those asylum seekers. that, in the failure to appear context, the ‘‘beyond the control of the parties or the Furthermore, commenters stated that court must look to the particularized immigration court.’’ 8 CFR 1003.10(b) applying the rule retroactively would facts in each case when determining (final rule) (emphasis added). violate both the APA and aliens’ due whether exceptional circumstances Consequently, exceptional process rights. In addition, commenters exist). circumstances may involve those asserted that the rule’s retroactive Similarly, in a vacuum, the affecting DHS, an immigration judge, or application would conflict with Department cannot respond to the alien. congressional intent. commenters’ generalized statements 6. Retroactivity Other commenters questioned about various proposed exceptions whether the 180-day asylum Comment: Several commenters were because asylum applications are adjudication deadline provisions apply concerned with the rule’s silence on the adjudicated based on their specific facts, retroactively to pending cases. issue of retroactive applicability. not on generalized speculative Commenters stated that the rule would Commenters asserted that the rule assertions or extrapolations. For create difficulties if applied should not apply to anyone whose latest example, a commenter’s suggestion that retroactively because large numbers of entry into the United States was prior to a need for mental health services is an pending cases would need to be the rule’s effective date or to any case advanced at the same time. exceptional circumstance may be true in where an NTA has been filed. Alternatively, commenters stated that some cases because it may be indicative Commenters also urged the Department prospective application of the rule of ‘‘serious illness of the alien;’’ to explicitly specify that the rule does would result in existing cases being however, unmoored from any larger not have any retroactive effect or, in the indefinitely delayed as new asylum context, the Department cannot say that alternative, specifically identify the applications are required to be it would be exceptional in all cases, individuals and claims to which the adjudicated within 180 days of filing. particularly if it is unrelated to the rule would apply. 71 claim at issue. Further, some aliens Commenters believed that applying Response: The Department recognizes with valid claims who are receiving the rule retroactively would create that the potential retroactivity of the mental health treatment may not wish to waste, uncertainty, and inefficiency in rule was not clear in the NPRM. To the use that treatment as a basis to delay the immigration court system and extent that the rule changes any existing adjudication of their case because they overburden DHS. For example, law, the Department intends to apply it seek to obtain relief as quickly as commenters stated that DHS trial prospectively to apply to all asylum possible. The Department cannot make attorneys, immigration judges, court applications—as well as applications for a blanket determination based solely on staff, and asylum officers would be statutory withholding of removal and generalizations without context that protection under the CAT regulations immediately overwhelmed if they were 72 such situations will always constitute forced to adjudicate all current pending where applicable—that are filed on or an exceptional circumstance because cases within the rule’s 180-day after the rule’s effective date and, for each case is different and considered on timeframe. Moreover, commenters noted purposes of the 15-day filing deadline, its own merits. Moreover, the credibility that work may need to be repeated to to all proceedings initiated under 8 CFR of such assertions will always be at conform to the rule’s new evidentiary 1208.2(c) on or after the rule’s effective issue because they provide an exception standards. Commenters raised concerns date. to the general rule, and it is difficult, if that court staff would have to spend an To the extent that the rule merely not impossible, for the Department to inordinate amount of unnecessary hours codifies existing law or authority, make generalized credibility going through recently submitted I–589 however, it will apply to pending cases. determinations in a rulemaking. Rather, forms that have not yet been deemed For example, the provisions of the rule the Department believes that the complete to see whether every box is incorporating section 208(d)(5)(A)(iii) of definition established by the rule is filled. the Act, 8 U.S.C. 1158(d)(5)(A)(iii), into Moreover, commenters claimed that the regulations are simply adoptions of 71 For instance, the Department notes that thousands of asylum seekers have relied existing law. In fact, as statutory individuals may receive treatment for a variety of on and structured their lives around the provisions in effect for decades, the mental health conditions—e.g., obstructive sleep Department has already been applying apnea hypopnea; caffeine intoxication; tobacco current asylum system and would be withdrawal; gambling disorders—that are not seriously harmed if the rule was applied them to asylum cases, independently of normally associated with grounds for asylum and retroactively. For example, commenters would ordinarily not be considered exceptional 72 For purposes of the 30-day correction period circumstances. See American Psychiatric pointed out that many asylum seekers for an incomplete or deficient asylum application, Association, Diagnostic and Statistical Manual of have spent significant amounts of this rule will apply to any asylum application that Mental Disorders (DSM–5) (5th ed. 2013). money on legal representation to is attempted to be filed on or after the effective date.

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the rule.73 Accordingly, they do not 7. Miscellaneous filed, broken down by immigration have an impermissible retroactive effect a. Independent Immigration Courts court, broken down by represented v. applied to pending cases. See Sterling pro se applicants.’’ Holding Co., LLC, 544 F.3d at 506 Comment: Commenters generally Response: The Department believes (‘‘Thus, where a new rule constitutes a expressed concerns that the rule that it is has provided the relevant undermines the independence of the clarification—rather than a substantive needed justifications and explanations immigration courts from political or change—of the law as it existed for this rule in both the preamble to the other inappropriate influence. At least proposed rule and the discussion above. beforehand, the application of that new one commenter stated that the rule rule to pre-promulgation conduct To the extent commenters seek further highlighted the need for the specific information, the Department necessarily does not have an immigration courts and immigration first notes that raw data from EOIR’s impermissible retroactive effect, judges to be ‘‘independent’’ and outside case management database is available regardless of whether Congress has the executive branch. online, EOIR, FOIA Library: EOIR Case delegated retroactive rulemaking power Response: These commenters’ Data (Nov. 12, 2020), available at to the agency.’’ (emphasis in original)). recommendations are both beyond the https://www.justice.gov/eoir/foia- Similarly, the dictates of Matter of S– scope of this rulemaking and the library-0, and that EOIR maintains a M–J– and applicable case law, e.g., 85 Department’s authority. Congress has number of publicly-available statistics FR at 59695, regarding an immigration provided for a system of administrative and reports, including those related to judge’s authority to submit evidence hearings for immigration cases, and the asylum applications, see EOIR, EOIR and develop the record are pre-existing Department believes that system should Workload and Adjudication Statistics authorities that are merely incorporated be maintained. See generally INA 240, (Oct. 30, 2020), available at https:// into the regulations by this rule. 8 U.S.C. 1229a (establishing www.justice.gov/eoir/workload-and- administrative procedures for removal Accordingly, the provisions adjudication-statistics. The Department proceedings); cf. Strengthening and incorporating that authority also apply also reminds commenters of the ability Reforming America’s Immigration Court to pending cases. In fact, as with section to submit requests to the Department System: Hearing before the Subcomm. 208(d)(5)(A)(iii) of the Act, 8 U.S.C. pursuant to the Freedom of Information on Border Sec. & Immigration of the S. Act (FOIA). Such requests should be 1158(d)(5)(A)(iii), the Department has Comm. on the Judiciary, 115th Cong. 1 already been applying these principles submitted to the EOIR Office of General (2018) (written response to Questions Counsel: U.S. Department of Justice, to asylum cases independently of this for the Record of James McHenry, Executive Office for Immigration rule. Director, Executive Office for Review, Office of General Counsel— Otherwise, the Department declines to Immigration Review) (‘‘The financial FOIA Service Center, 5107 Leesburg adopt commenters’ assertions about costs and logistical hurdles to Pike, Suite 2150, Falls Church, VA potential implications of the rule’s implementing an Article I immigration 22041; Email address: application to pending cases because court system would be monumental and [email protected]; FOIA those comments are wholly speculative would likely delay pending cases even Public Liaison: Crystal Souza; due to the case-by-case and fact- further.’’). Only Congress has the Telephone: 703–605–1297. intensive nature of many asylum authority to create a new Article I court Further information regarding EOIR’s adjudications. See Home Box Office, 567 or other framework for the adjudication FOIA request procedures is available on F.2d at 35 n.58 (‘‘In determining what of immigration cases. the EOIR website at: https:// points are significant, the ‘arbitrary and Moreover, the Department reiterates www.justice.gov/eoir/freedom- capricious’ standard of review must be that immigration judges already exercise information-act-foia. kept in mind . . . Moreover, comments ‘‘independent judgment and discretion’’ in deciding cases, 8 CFR 1003.10(b), and 8. Concerns With Regulatory which themselves are purely Requirements speculative and do not disclose the are prohibited from considering political influences in their decision- factual or policy basis on which they Comment: Commenters generally making, Ethics and Professionalism expressed concern that the Department rest require no response. There must be Guide for Immigration Judges, sec. VIII did not comply with Executive Orders some basis for thinking a position taken (‘‘An Immigration Judge should not be 12866 and 13563 because the in opposition to the agency is true.’’). swayed by partisan interests or public Department did not adequately consider Moreover, as noted, the Department is clamor.’’) (Jan. 26, 2011). Thus, contrary the costs and possible alternatives to the applying much of the rule to commenters’ assertions, immigration provisions in the rule due to the prospectively, and the provisions that judges are already independent significance of many of the rule’s are not prospective are already adjudicators who do not render provisions. For example, commenters applicable to pending cases through decisions based on political influence or asserted that the rule’s effects on filing either the Act itself or binding political interests. As commenters’ deadlines, the availability of precedent. Thus, the alleged underlying claims are unfounded in law or practice continuances, and evidentiary factual premise of the commenters’ and well beyond the scope of this submissions would in fact impact aliens concerns is erroneous. rulemaking, the Department declines to in proceedings, particularly pro se base revisions to the rule on them. individuals, and immigration 73 The Department recognizes that the precise practitioners, contrary to the regulatory definition of ‘‘exceptional b. Requests for Data Department’s assertions in the proposed circumstances’’ in 8 CFR 1003.10(b) for purposes of Comment: Multiple commenters section 208(d)(5)(A)(iii) of the Act, 8 U.S.C. rule. 1158(d)(5)(A)(iii), is new. Accordingly, that precise included specific requests for further Similarly, commenters disagreed with definition will apply only to asylum applications information or data points together with the Department’s assertion, pursuant to filed on or after the effective date of the rule, even their comments. For example, one the Regulatory Flexibility Act though the provisions of section 208(d)(5)(A)(iii) of commenter requested, inter alia, the requirements, that the rule would ‘‘not the Act, 8 U.S.C. 1158(d)(5)(A)(iii), continue to apply to all asylum applications currently pending ‘‘[n]umber of successful asylum claims have a significant economic impact on that were filed on or after April 1, 1997. as a percentage of total asylum claims a substantial number of small entities’’

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and that the rule only regulates Moreover, the rule is not imposing any (requiring that an RFA analysis include individuals and not small entities. 85 new costs on asylum seekers. a description of and, if feasible, an FR at 59697. For example, commenters Respondents are already required to estimate of the number of ‘‘small stated that the combined effect of the submit completed asylum applications entities’’ to which the rule ‘‘will rule’s provisions would, inter alia, affect in order to have them adjudicated, and apply’’). To the contrary, case law how practitioners accept cases, manage immigration judges already have the indicates that indirect effects on entities dockets, or assess fees. Commenters authority to set deadlines. Additionally, not regulated by a proposed rule are not asserted that these effects would, in any costs imposed on attorneys or subject to an RFA analysis. See, e.g., turn, impact the overall ability of entities will be minimal and limited to Mid-Tex Elec. Co-op, Inc. v. FERC, 773 practitioners to provide services and the time it will take to become familiar F.2d 327, 342–43 (D.C. Cir. 1985) (‘‘[W]e affect aliens’ access to representation. In with the rule.75 Immigration conclude that an agency may properly addition, commenters stated that these practitioners are already subject to certify that no regulatory flexibility changes demonstrate the rule would in professional responsibility rules analysis is necessary when it determines fact regulate small entities, namely law regarding workload management, 8 CFR that the rule will not have a significant firms or other organizations that appear 1003.102(q)(1), and are already economic impact on a substantial before EOIR. Commenters compared the accustomed to preparing and filing number of small entities that are subject rule to other recent proposed rule where documents related to asylum claims to the requirements of the rule.... the Department acknowledged the effect according to deadlines established by Congress did not intend to require that on practitioners,74 which the immigration judges. Further, the every agency consider every indirect commenters stated is further evidence of Department notes that attorneys have effect that any regulation might have on the rule’s effect. been aware of the 180-day adjudication small businesses in any stratum of the At least one commenter argued that deadline for asylum applications for national economy. That is a very broad the rule should be considered a ‘‘major over two decades. Finally, the generally and ambitious agenda, and we think rule’’ under the Congressional Review prospective application of the rule— that Congress is unlikely to have Act (‘‘CRA’’) because the rule’s effect other than the parts that are already embarked on such a course without will exceed the $100 million threshold. established by statute or precedent and airing the matter.’’); Cement Kiln The commenter explained that the rule’s under which practitioners have been Recycling Coalition v. EPA, 255 F.3d economic effect would result from practicing for over 20 years—further 855, 869 (D.C. Cir. 2001) (‘‘Contrary to increased DHS detention costs due to diminishes the already-minimal effect of what [petitioner] supposes, application increased application rejections, effects the rule on practitioners, as no of the RFA does turn on whether on reduced employment authorization practitioners will be required to particular entities are the ‘targets’ of a availability, and increased costs to reevaluate any cases or arguments that given rule. The statute requires that the government agencies or subsidized they are currently pursuing. agency conduct the relevant analysis or entities that administer social services The Department also rejects the certify ‘no impact’ for those small programs. assertion that the rule would have a businesses that are ‘subject to’ the Response: The Department reiterates significant impact on small entities. The regulation, that is, those to which the its response to similar comments rule applies to asylum applicants, who regulation ‘will apply.’ . . . The rule regarding the rule’s alleged effects on are individuals, not entities. See 5 will doubtless have economic impacts particular groups, supra, and adds the U.S.C. 601(6). The rule does not limit in in many sectors of the economy. But to following further response. Overall, the any way the ability of practitioners to require an agency to assess the impact Department disagrees with commenters’ accept cases, manage dockets, or assess on all of the nation’s small businesses contention that it did not comply with fees. Indeed, nothing in the rule in any possibly affected by a rule would be to Executive Orders 12866 and 13653. The fashion regulates the legal convert every rulemaking process into a Department considered all costs and representatives of such individuals or massive exercise in economic modeling, possible alternatives to the provisions in the organizations by which those an approach we have already rejected.’’ the rule, and the fact that the representatives are employed, and the (citing Mid-Tex, 773 F.2d 327 at 343)); Department did not adopt an alternative Department is unaware of cases in see also White Eagle Co-op Ass’n v. suggested by commenters—or did not which the RFA’s requirements have Conner, 553 F.3d 467, 480 (7th Cir. retain the status quo—does not mean been applied to legal representatives of that such alternatives were not entities subject to its provisions, in 2009) (‘‘The rule that emerges from this considered. addition to or in lieu of the entities line of cases is that small entities As noted in the NPRM, the themselves. See 5 U.S.C. 603(b)(3) directly regulated by the proposed Department believes that the rule will [rulemaking]—whose conduct is provide a significant net benefit by 75 As discussed, supra, substantial parts of the circumscribed or mandated—may bring allowing for the expeditious and rule merely incorporate existing law, including a challenge to the RFA analysis or efficient resolution of asylum cases. 85 principles enshrined in statute or binding certification of an agency.... precedent. The new portions include: A new filing However, when the regulation reaches FR at 59698. These benefits will ensure deadline for aliens in proceedings under 8 CFR that the Department’s case volume does 1208.2(c), a new deadline for returning asylum small entities only indirectly, they do not increase to an insurmountable applications rejected as incomplete or deficient, a not have standing to bring an RFA new definition of ‘‘exceptional circumstances’’ for challenge.’’). degree, which in turn will leave purposes of section 208(d)(5)(A)(iii) of the Act, 8 additional resources available for a U.S.C. 1158(d)(5)(A)(iii), and clarification of the Further, no commenters on this point greater number of asylum seekers. evidentiary status of government and non- acknowledged or recognized that the Contrary to commenters’ claims, the government reports. None of what is new should Department reached a similar require an extensive amount of time to review or rule will not prevent aliens from understand by practitioners who are already conclusion in 1997 involving a far more submitting asylum applications, experienced at meeting deadlines, correcting sweeping and comprehensive requesting continuances, or presenting incomplete applications, and arguing both whether rulemaking regarding asylum a particular circumstance meets the definition of an adjudications. See Inspection and evidence in immigration court. exceptional circumstance and the weight that an adjudicator should accord to various evidentiary Expedited Removal of Aliens; Detention 74 See, e.g., 85 FR at 52491. submissions. and Removal of Aliens; Conduct of

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Removal Proceedings; Asylum the rule regulates individual asylum in any one year, and it will not Procedures, 62 FR 444, 453 (Jan. 3, seekers. Practitioners remain free to significantly or uniquely affect small 1997) (certifying that the rule would not accept cases, manage dockets, and governments. Therefore, no actions were have a significant impact on a charge fees as they see fit. Moreover, deemed necessary under the provisions substantial number of small entities commenters’ concerns regarding how of the Unfunded Mandates Reform Act because it ‘‘affects only Federal practitioners will be affected by the rule of 1995. government operations’’ by revising the either are wholly speculative due to the D. Congressional Review Act procedures for the ‘‘examination, case-by-case nature of asylum detention, and removal of aliens’’). That adjudication, fail to account for the This rule would not be a major rule conclusion was reiterated in the interim provisions of the rule that have already as defined by section 804 of the rule, 62 FR 10312, 10328 (Mar. 6, 1997), been in effect for decades, or are beyond Congressional Review Act. 5 U.S.C. which was adopted with no noted the scope of this rulemaking. As such, 804(2). This rule will not result in an challenge or dispute. the Department finds that further annual effect on the economy of $100 This final rule is far less significant in analysis under the Regulatory million or more; a major increase in scope than the 1997 rulemaking, and Flexibility Act is not warranted. In costs or prices; or significant adverse part of the rule simply incorporates short, there is no evidence that the rule effects on competition, employment, principles that are already in effect will have a significant impact on small investment, productivity, innovation, or through statutory enactment or binding entities as contemplated by the on the ability of United States-based precedent. Moreover, this final rule is Regulatory Flexibility Act or an enterprises to compete with foreign- similar to previous rules, in that it, too, applicable executive order. based enterprises in domestic and affects only the operations of the Furthermore, the Department does not export markets. Federal government by amending a believe that the rule should be E. Executive Orders 12866, 13563 and subset of the procedures the government considered a ‘‘major rule’’ under the 13771 uses to process certain aliens.76 The CRA. Assertions that the rule will result The Office of Information and Department thus believe that the in increased DHS detention costs, Regulatory Affairs of the Office of experience of implementing prior rules decreased employment authorization Management and Budget (‘‘OMB’’) has supports its conclusion that there is no availability, and increased costs to determined that this rule is a evidence that the current rule will have government agencies and subsidized ‘‘significant regulatory action’’ under a significant impact on small entities as entities are purely speculative. In fact, section 3(f) of Executive Order 12866. contemplated by the RFA or an the rule will likely reduce costs to the Accordingly, the regulation has been applicable executive order. government by allowing for a more submitted to OMB for review. The The rule does not limit in any way the streamlined and efficient asylum Department certifies that this regulation ability of practitioners to accept cases, process. Additionally, the commenter has been drafted in accordance with the manage dockets, or assess fees. Nothing who raised this concern presented no principles of Executive Order 12866, in the rule directly, or indirectly, evidence that the rule would result in section 1(b), Executive Order 13563, and regulates practitioners or entities; rather, an annual effect on the economy of $100 Executive Order 13771. million or more, and the Department is Executive Orders 12866 and 13563 76 The Department’s position for decades has been aware of no such evidence. that for purposes of the RFA and rulemakings direct agencies to assess all costs and related to EOIR proceedings, rulemakings which III. Regulatory Requirements benefits of available regulatory directly regulate aliens—rather than directly alternatives and, if regulation is regulating practitioners—do not regulate small A. Administrative Procedure Act necessary, to select regulatory entities. See, e.g., Powers and Duties of Service Officers; Availability of Service Records, 51 FR This final rule is being published with approaches that maximize net benefits 2895 (Jan. 22, 1986) (proposed rule for changes to a 30-day effective date as required by (including potential economic, EOIR’s fee schedule for appeals and motions and the Administrative Procedure Act. 5 environmental, public health, and safety stating, ‘‘In accordance with 5 U.S.C. 605(b), the U.S.C. 553(d). effects; distributive impacts; and Attorney General certifies that the rule will not equity). Executive Order 13563 have a significant economic impact on a substantial B. Regulatory Flexibility Act number of small entities.’’) and 51 FR 39993, 39994 emphasizes the importance of using the (Nov. 4, 1986) (final rule adopting in pertinent part The Department has reviewed this best available methods to quantify costs the proposed changes to the fee schedule and rule in accordance with the Regulatory and benefits, reducing costs, maintaining the position that changes to the fee schedule will not have a significant impact on a Flexibility Act and has determined that harmonizing rules, and promoting substantial number of small entities). Even when it will not have a significant economic flexibility. the Department has directly regulated practitioners, impact on a substantial number of small The Department believes that this rule it has found no significant impact on a substantial entities. 5 U.S.C. 605(b). The rule will will effectuate congressional intent to number of small entities when the rule is simply similar to existing regulatory procedures. See, e.g., not regulate ‘‘small entities’’ as that term resolve cases in an expeditious manner Professional Conduct for Practitioners—Rules and is defined in 5 U.S.C. 601(6). Only and will provide significant net benefits Procedures, and Representation and Appearances, individuals, rather than entities, are relating to EOIR proceedings by 73 FR 76914, 76922 (Dec. 18, 2008) (‘‘The Attorney eligible to apply for asylum, and only allowing the agency to resolve cases General, in accordance with the Regulatory more quickly. Section 1(b)(6) of Flexibility Act (5 U.S.C. 605(b)), has reviewed this individuals are placed in immigration regulation and, by approving it, certifies that this proceedings. The Department also Executive Order 12866 states that rule will not have a significant economic impact on incorporates by reference herein the ‘‘[e]ach agency shall assess both the a substantial number of small entities. This rule discussion in Section II.C.8, supra. costs and the benefits of the intended affects only those practitioners who practice regulation and, recognizing that some immigration law before EOIR. This rule will not C. Unfunded Mandates Reform Act of costs and benefits are difficult to affect small entities, as that term is defined in 5 1995 U.S.C. 601(6), because the rule is similar in quantify, propose or adopt a regulation substance to the existing regulatory process.’’). The This rule will not result in the only upon a reasoned determination Department is unaware of any reasonable dispute or that the benefits of the intended challenge to this longstanding position and finds no expenditure by State, local, and Tribal reason to depart from its previous well-established governments, in the aggregate, or by the regulation justify its costs,’’ As of and accepted view. private sector, of $100 million or more October 13, 2020, EOIR had over

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580,000 pending cases with an eoir/office-chief-immigration-judge-0. F. Executive Order 13132 (Federalism) application for asylum and withholding The rule also does not require an This rule will not have substantial of removal, and the median processing immigration judge to schedule a merits direct effects on the States, on the time for a non-detained case with an hearing at any particular time after the relationship between the National asylum application is 1133 days. EOIR, application is filed, as long as the Government and the States, or on the Adjudication Statistics: Total Asylum application is adjudicated within 180 distribution of power and Applications (Oct. 13, 2020), available days absent exceptional circumstances, responsibilities among the various at https://www.justice.gov/eoir/page/ which is an existing and longstanding levels of government. Therefore, in file/1106366/download. This rule will statutory requirement, see INA accordance with section 6 of Executive assist EOIR in adjudicating new asylum 208(d)(5)(A)(iii), 8 U.S.C. Order 13132, it is determined that this cases more efficiently to ensure that this 1158(d)(5)(A)(iii). rule does not have sufficient federalism volume does not increase to an implications to warrant the preparation insurmountable degree. No costs to the Moreover, this rule does not require of a federalism summary impact Department or to respondents are that an alien wait until the immigration statement. expected. Respondents are already judge sets a filing deadline before filing required to submit complete asylum an application, and an alien remains G. Executive Order 12988 (Civil Justice applications to have them adjudicated, free to file his or her asylum application Reform) and immigration judges already have with the immigration court before the This rule meets the applicable authority to set deadlines. first hearing. Asylum applications are standards set forth in sections 3(a) and The Department notes that this rule frequently filed prior to or at an initial 3(b)(2) of Executive Order 12988. will not impose any new fees. immigration court hearing already, and Consistent with the treatment of other existing regulations allow for H. Paperwork Reduction Act applications referred by USCIS that are supplementing an initial application as Under the Paperwork Reduction Act renewed in immigration proceedings, an appropriate, subject to an immigration of 1995, Public Law 104–13, 44 U.S.C. alien filing a USCIS Form I–589 with judge’s discretion. Most aliens filing chapter 35, and its implementing USCIS who is then referred to DOJ for asylum applications in pending regulations, 5 CFR part 1320, all immigration proceedings would pay the immigration proceedings—85 percent— agencies are required to submit to OMB, application fee only once. The have representation, see EOIR, Current for review and approval, any reporting Department’s fees for applications Representation Rates (Oct. 13, 2020), requirements inherent in a rule. This published by DHS are established in available at https://www.justice.gov/ rule may require edits to the USCIS accordance with 8 CFR 1103.7(b)(4)(ii), eoir/page/file/1062991/download, and Form I–589, Application for Asylum which, in turn, cross-references the DHS and for Withholding of Removal, fee schedule. Given the inextricable the proposed rule is not expected to because the filing of an asylum nature of the two agencies’ asylum increase any burdens on practitioners, application now requires submission, processes and the benefit of not treating who are already subject to professional for any required fee, of a fee receipt or applicants for substantially similar responsibility rules regarding workload alternate proof of payment. If necessary, benefits differently if they file with DOJ management, 8 CFR 1003.102(q)(1), and a separate notice will be published in or with DHS, the Department’s who are already accustomed to the Federal Register requesting regulations have included this cross- preparing and filing documents related comments on the information collection reference for several years, and this rule to asylum claims according to deadlines impacts of this rule and the revised does not alter it. The Department is also established by an immigration judge. USCIS Form I–589. not authorized, per regulation, to waive The Department acknowledges that the application fee for an application establishing a fixed deadline to file an List of Subjects published by DHS if DHS identifies that asylum application in some types of fee as non-waivable. 8 CFR 1103.7(c). immigration proceedings may reduce 8 CFR Part 1003 The proposed rule does not alter that the availability of prior dilatory tactics Administrative practice and regulatory structure. as a matter of strategy, though it also procedure, Aliens, Immigration, Legal The Department believes that this rule recognizes that attorneys have been services, Organization and functions will impose only minimal, if any, direct aware of the 180-day adjudication (Government agencies). costs on the public. Any new minimal deadline for asylum applications for 8 CFR Part 1103 cost would be limited to the cost of the over two decades and are familiar with public familiarizing itself with this rule, the similar existing 10-day deadline for Administrative practice and though because parts of the rule merely alien crewmember asylum applications procedure, Authority delegations codify longstanding statutory provisions in 8 CFR 1208.5(b)(1)(ii). (Government agencies), Reporting and and certain precedents or otherwise recordkeeping requirements. reflect longstanding pre-existing No costs to the Department are 8 CFR Part 1208 regulatory provisions, there is little new associated with the rule. The changes do in the rule that requires familiarization. not create an incentive that would cause Administrative practice and An immigration judge’s ability to set DHS to file more cases and, thus, are not procedure, Aliens, Immigration, filing deadlines is already established expected to result in an increase in the Reporting and recordkeeping by regulation, and filing deadlines for number of cases to be adjudicated by requirements. EOIR. Further, the changes provide both applications and supporting 8 CFR Part 1240 documents are already a well- guidance for administrative decision- established aspect of immigration court making but do not require immigration Administrative practice and proceedings guided by regulations and judges to make more decisions or to procedure, Aliens. the Immigration Court Practice Manual. prolong immigration proceedings. This Accordingly, for the reasons set forth See generally EOIR, Immigration Court costs of this rule are considered de in the preamble, and by the authority Practice Manual (Nov. 25, 2020), minimis for purposes of Executive Order vested in the Director, Executive Office available at https://www.justice.gov/ 13771. for Immigration Review, by the Attorney

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General Order Number 4910–2020, the (c) * * * PART 1103—APPEALS, RECORDS, Department amends 8 CFR parts 1003, (1) When filed during proceedings. AND FEES 1103, 1208, and 1240 as follows: When an application for relief is filed during the course of proceedings, the fee ■ 7. The authority citation for part 1103 PART 1003—EXECUTIVE OFFICE FOR for that application must be paid in continues to read as follows: IMMIGRATION REVIEW advance to the Department of Homeland Authority: 8 U.S.C. 1101, 1103, 1304, Security in accordance with 8 CFR ■ 1356; 31 U.S.C. 9701; 28 U.S.C. 509, 510. 1. The authority citation for part 1003 103.7 and 8 CFR part 106. The fee ■ 8. In § 1103.7, revise paragraph (a)(3) continues to read as follows: receipt must accompany the application to read as follows: Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 when it is filed with the immigration U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, court except as provided by 8 CFR § 1103.7 Fees. 1226, 1229, 1229a, 1229b, 1229c, 1231, 1208.4(d)(3). 1254a, 1255, 1324d, 1330, 1361, 1362; 28 (a) * * * U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. * * * * * (3) All other fees payable in 2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002; ■ 5. Revise § 1003.29 to read as follows: connection with immigration section 203 of Pub. L. 105–100, 111 Stat. proceedings. Except as provided in 8 2196–200; sections 1506 and 1510 of Pub. L. § 1003.29 Continuances. CFR 1003.8, the Executive Office for 106–386, 114 Stat. 1527–29, 1531–32; section The immigration judge may grant a Immigration Review does not accept the 1505 of Pub. L. 106–554, 114 Stat. 2763A– motion for continuance for good cause payment of any fee relating to Executive 326 to –328. shown, provided that nothing in this Office for Immigration Review ■ 2. In § 1003.8, revise paragraph (a)(1) section shall authorize a continuance proceedings. Instead, such fees, when to read as follows: that causes the adjudication of an required, shall be paid to, and accepted asylum application to exceed 180 days by, an office of the Department of § 1003.8 Fees before the Board. in the absence of exceptional Homeland Security authorized to accept (a) * * * circumstances, consistent with section fees, as provided in 8 CFR 103.7(a)(1) (1) When a fee is required. Except as 208(d)(5)(A)(iii) of the Act and and 8 CFR part 106. The Department of provided in paragraph (a)(2) of this § 1003.10(b). Homeland Security shall return to the section and 8 CFR 1208.4(d)(3), a filing ■ 6. In § 1003.31, revise paragraphs (b) payer, at the time of payment, a receipt fee prescribed in 8 CFR 1103.7, or a fee and (c) to read as follows: for any fee paid, and shall also return to waiver request pursuant to paragraph the payer any documents, submitted (a)(3) of this section, is required in § 1003.31 Filing documents and with the fee, relating to any immigration connection with the filing of an appeal, applications. proceeding. The fee receipt and the a motion to reopen, or a motion to * * * * * application or motion shall then be reconsider before the Board. (b) Except as provided in 8 CFR submitted to the Executive Office for * * * * * 1240.11(f) and 1208.4(d)(3), all Immigration Review except as provided ■ 3. In § 1003.10, add three sentences at documents or applications requiring the by 8 CFR 1208.4(d)(3). Remittances to the end of paragraph (b) to read as payment of a fee must be accompanied the Department of Homeland Security follows: by a fee receipt from the Department of for applications, motions, or forms filed Homeland Security, an alternate proof in connection with immigration § 1003.10 Immigration judges. of payment consistent with proceedings shall be payable subject to * * * * * § 1208.4(d)(3), or by an application for the provisions of 8 CFR 103.7(a)(2) and (b) * * * In the absence of a waiver of fees pursuant to § 1003.24. 8 CFR part 106. exceptional circumstances, an Except as provided in § 1003.8(a) and * * * * * immigration judge shall complete (c), any fee relating to Immigration administrative adjudication of an Judge proceedings shall be paid to, and PART 1208—PROCEDURES FOR asylum application within 180 days accepted by, any Department of ASYLUM AND WITHHOLDING OF after the date an application is filed. For Homeland Security office authorized to REMOVAL purposes of this paragraph (b) and of accept fees for other purposes pursuant §§ 1003.29 and 1240.6 of this chapter, to § 1103.7(a) of this chapter. ■ 9. The authority citation for part 1208 the term exceptional circumstances (c) Subject to § 1208.4(d) of this continues to read as follows: refers to exceptional circumstances chapter, the immigration judge may set Authority: 8 U.S.C. 1101, 1103, 1158, (such as battery or extreme cruelty to and extend time limits for the filing of 1226, 1252, 1282; Title VII of Pub. L. 110– the alien or any child or parent of the applications and related documents and 229; Pub. L. 115–218. alien, serious illness of the party or responses thereto, if any, provided that ■ 10. In § 1208.3, revise paragraph (c)(3) immigration judge, or serious illness or nothing in this section shall authorize to read as follows: death of the spouse, child, or parent of setting or extending time limits for the the alien, but not including less filing of documents after an asylum § 1208.3 Form of application. compelling circumstances) beyond the application has been filed that would * * * * * control of the parties or the immigration cause the adjudication of an asylum (c) * * * court. A finding of good cause does not application to exceed 180 days in the (3) An asylum application must be necessarily mean that an exceptional absence of exceptional circumstances, properly filed in accordance with the circumstance has also been established. consistent with section 208(d)(5)(A)(iii) form instructions and with §§ 1003.24, * * * * * of the Act and § 1003.10(b). If an 1003.31(b), and 1103.7(a)(3) of this application or document is not filed ■ 4. In § 1003.24, revise paragraph (c)(1) chapter, including payment of a fee, if within the time set by the immigration to as follows: any, as explained in the instructions to judge, the opportunity to file that the application. For purposes of filing § 1003.24 Fees pertaining to matters within application or document shall be with an immigration court, an asylum the jurisdiction of an immigration judge. deemed waived. application is incomplete if it does not * * * * * * * * * * include a response to each of the

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required questions contained in the the immigration judge shall comply Department of State, other Department form, is unsigned, is unaccompanied by with the requirements of of Justice offices, the Department of the required materials specified in § 1240.11(c)(1)(i) through (iii) and shall Homeland Security, or other U.S. paragraph (a) of this section, is not set a deadline of fifteen days from the Government agencies, and may rely on completed and submitted in accordance date of the alien’s first hearing before an foreign government and non- with the form instructions, or is immigration judge by which the alien governmental sources if those sources unaccompanied by any required fee must file an application for withholding are determined by the judge to be receipt or other proof of payment as of removal under section 241(b)(3) of credible and the material is probative. provided in § 1208.4(d)(3). The filing of the Act, which includes an application On his or her own authority, an an incomplete application shall not for protection under §§ 1208.16 through immigration judge may submit relevant commence the period after which the 1208.18. The immigration judge may evidence into the record, if the source applicant may file an application for extend the deadline for good cause. If is credible and the evidence is employment authorization. An the alien does not file an application by probative, and may consider it in application that is incomplete shall be the deadline set by the immigration deciding an asylum application, which rejected by the immigration court. If an judge, the immigration judge shall deem includes an application for withholding applicant wishes to have his or her the opportunity to file such an of removal under section 241(b)(3) of application for asylum considered, he or application waived, and the case shall the Act and protection under §§ 1208.16 she shall correct the deficiencies in the be returned to the Department of through 1208.18, provided that a copy incomplete application and refile it Homeland Security. of the evidence has been provided to within 30 days of rejection. Failure to (2) If the alien must pay a fee for both parties and both parties have had correct the deficiencies in an submission of the asylum application, an opportunity to comment on or object incomplete application or failure to the alien must submit the DHS-issued to the evidence prior to the issuance of timely refile the application with the fee receipt together with the application the immigration judge’s decision. deficiencies corrected, absent by the deadline set by the immigration * * * * * exceptional circumstances as defined in judge in paragraph (d)(1) of this section. § 1003.10(b) of this chapter, shall result (3) If the alien has paid any required PART 1240—PROCEEDINGS TO in a finding that the alien has fee but has not received the fee receipt DETERMINE REMOVABILITY OF abandoned that application and waived from DHS by the deadline set by the ALIENS IN THE UNITED STATES the opportunity to file such an immigration judge, the alien must application; instead provide to the immigration court ■ 15. The authority citation for part * * * * * a copy of proof of the payment to DHS 1240 continues to read as follows: ■ 11. In § 1208.4, add paragraph (d) to with the asylum application. The alien Authority: 8 U.S.C. 1103, 1158, 1182, read as follows: must then submit a copy of the fee 1186a, 1186b, 1225, 1226, 1227, 1228, 1229a, receipt by a new deadline set by the 1229b, 1229c, 1252 note, 1361, 1362; secs. § 1208.4 Filing the application. immigration judge. If the immigration 202 and 203, Pub. L. 105–100 (111 Stat. 2160, * * * * * judge does not set a deadline, the alien 2193); sec. 902, Pub. L. 105–277 (112 Stat. (d) Filing deadline. (1) For any alien must submit the fee receipt no later than 2681). in asylum-and-withholding-only 45 days after the date of filing of the ■ 16. Revise § 1240.6 to read as follows: proceedings pursuant to § 1208.2(c)(1) application. and paragraph (b)(3)(iii) of this section, § 1240.6 Postponement and adjournment the immigration judge shall comply § 1208.7 [Removed and Reserved] of hearing. with the requirements of ■ 12. Remove and reserve § 1208.7. After the commencement of the § 1240.11(c)(1)(i) through (iii) of this § 1208.9 [Removed and Reserved] hearing, the immigration judge may chapter and shall set a deadline of grant a reasonable adjournment either at fifteen days from the date of the alien’s ■ 13. Remove and reserve § 1208.9. his or her own instance or, for good first hearing before an immigration ■ 14. In § 1208.12, revise paragraph (a) cause shown, upon application by the judge by which the alien must file an to read as follows: respondent or the Department of asylum application, which includes an Homeland Security, provided that application for withholding of removal § 1208.12 Reliance on information nothing in this section shall authorize compiled by other sources. under section 241(b)(3) of the Act and an adjournment that causes the protection under §§ 1208.16 through (a) In deciding an asylum application, adjudication of an asylum application to 1208.18. The immigration judge may which includes an application for exceed 180 days in the absence of extend the deadline for good cause. If withholding of removal under 241(b)(3) exceptional circumstances, consistent the alien does not file an asylum of the Act and protection under with section 208(d)(5)(A)(iii) of the Act application by the deadline set by the §§ 1208.16 through 1208.18, or in and § 1003.10(b) of this chapter. immigration judge, the immigration deciding whether the alien has a judge shall deem the opportunity to file credible fear of persecution or torture James R. McHenry III, such an application waived, and the pursuant to § 1208.30, or a reasonable Director, Executive Office for Immigration case shall be returned to the Department fear of persecution or torture pursuant Review, Department of Justice. of Homeland Security. For any alien in to § 1208.31, an immigration judge may [FR Doc. 2020–27210 Filed 12–15–20; 8:45 am] proceedings pursuant to § 1208.2(c)(2), rely on material provided by the BILLING CODE 4410–30–P

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