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Asylum. the Rule

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Asylum. the Rule This document is scheduled to be published in the Federal Register on 12/11/2020 and available online at federalregister.gov/d/2020-26875BILLING, and on govinfo.gov CODES 4410-30, 9111-97 DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 208 and 235 RIN 1615-AC42 DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1003, 1208, and 1235 EOIR Docket No. 18-0102; A.G. Order No. 4922-2020 RIN 1125-AA94 Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review AGENCY: Department of Homeland Security; Executive Office for Immigration Review, Department of Justice. ACTION: Final rule. SUMMARY: On June 15, 2020, the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) (collectively “the Departments”) published a notice of proposed rulemaking (“NPRM” or “proposed rule”) that would amend the regulations governing credible fear determinations. The proposed rule would make it so that individuals found to have a credible fear will have their claims for asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (“INA” or “the Act”) (“statutory withholding of removal”), or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), adjudicated by an immigration judge within the Executive Office for Immigration Review (“EOIR”) in streamlined proceedings (rather than under section 240 of the Act), and to specify what standard of review applies in such streamlined proceedings. The Departments further proposed changes to the regulations regarding asylum, statutory withholding of removal, and withholding and deferral of removal under the Convention Against Torture (“CAT”) regulations. The Departments also proposed amendments related to the standards for adjudication of applications for asylum and statutory withholding. This final rule (“rule” or “final rule”) responds to comments received in response to the NPRM and generally adopts the NPRM with few substantive changes. DATES: This rule is effective on [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Falls Church, VA 22041, telephone (703) 305–0289 (not a toll-free call). SUPPLEMENTARY INFORMATION: I. Executive Summary of the Final Rule On June 15, 2020, the Departments published an NPRM that would amend the regulations governing credible fear determinations to establish streamlined proceedings under a clarified standard of review. Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 36264 (June 15, 2020). The proposed rule would also amend regulations regarding asylum, statutory withholding of removal, and withholding and deferral of removal under the regulations. Id. The following discussion describes the provisions of the final rule, which is substantially the same as the NPRM, and summarizes the changes made in the final rule. A. Authority and Legal Framework The Departments are publishing this final rule pursuant to their respective authorities under the Immigration and Nationality Act (“INA”) as amended by the Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135. The INA, as amended by the HSA, charges the Secretary “with the administration and enforcement of this chapter [titled “Immigration and Nationality”] and all other laws relating to the immigration and naturalization of aliens” and granted the Secretary the power to take all actions “necessary for carrying out” the provisions of the immigration and nationality laws. INA 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3); See HSA, sec. 1102, 116 Stat. at 2273–74; Consolidated Appropriations Resolution of 2003, Public Law 108-7, sec. 105, 117 Stat. 11, 531. The HSA charges the Attorney General with “such authorities and functions under this chapter and all other laws relating to the immigration and naturalization of aliens as were [previously] exercised by [EOIR], or by the Attorney General with respect to [EOIR] . .” INA 103(g)(1), 8 U.S.C. 1103(g)(1); see 6 U.S.C. 521; HSA, sec. 1102, 116 Stat. at 2274. Furthermore, the Attorney General is authorized to “establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.” INA 103(g)(2), 8 U.S.C. 1103(g)(2); HSA, sec. 1102, 116 Stat. 2135, 2274. B. Changes in the Final Rule Through the NPRM, the Departments sought to satisfy a basic tenet of asylum law: to assert a “government’s right and duty to protect its own resources and citizens, while aiding those in true need of protection from harm.” 85 FR at 36265 (citations omitted). To achieve this dual aim, the Departments proposed numerous amendments to the DHS and DOJ regulations.1 After carefully reviewing all of the comments received on the NPRM, the Departments are making the following changes to the final rule. This final rule makes thirteen non-substantive changes to the regulatory provisions in the proposed rule, some of which were noted by commenters. First, the final rule corrects a typographical error—i.e. “part” rather than “party”—in 8 CFR 208.30(e)(2)(ii), which was 1 In addition to the amendments outlined in more detail herein, the Departments also proposed additional minor amendments for clarity, such as replacing references to the former Immigration and Naturalization Service with references to DHS where appropriate (see, e.g., 8 CFR 208.13(b)(3)(ii)) or replacing forms listed by form number with the form’s name (see, e.g., 8 CFR 1003.42(e)). The Departments also further reiterate the full explanation and justifications for the proposed changes set out in the preamble to the NPRM. 85 FR at 36265-88. proposed to read, “Such other facts as are known to the officer, including whether the alien could avoid a future threat to his or her life or freedom by relocating to another party of the proposed country of removal and, under all circumstances, it would be reasonable to expect the applicant to do so” (emphasis added). Second, the Departments added the word “for” to correct the form name “Application for Asylum and for Withholding of Removal” at 8 CFR 208.31(g)(2), 1208.30(g)(2)(iv)(B), and 1208.31(g)(2). Third, the Departments are replacing the word “essential” with the word “material” in 8 CFR 208.20(c)(1) and 1208.20(c)(1), consistent with the stated intent of the NPRM. Fourth, the Departments are making stylistic revisions to 8 CFR 208.15(a)(1) and 1208.15(a)(1), including breaking them into three subparagraphs, to make them easier to follow and to reduce the risk of confusion. Fifth, the Departments are editing the temporal language in 8 CFR 208.15(a)(3)(i) and (ii) and 1208.15(a)(3)(i) for clarity and consistency with similar language in 8 CFR 208.15(a)(2) and 1208.15(a)(2). The edited language clarifies the relevant temporal scope to read “after departing his country of nationality or last habitual residence and prior to arrival in or entry into the United States” in lieu of the language in the NPRM. Sixth, the Departments are striking the parenthetical phrase “(“rogue official”)” in 8 CFR 208.18(a)(1) and 1208.18(a)(1). Relatedly, they are replacing the remaining uses of the phrase “rogue official” in 8 CFR 208.16(b)(3)(iv), 208.18(a)(1), and 1208.18(a)(1) with its definition, “public official who is not acting under color of law.”2 Seventh, the Departments are adding the clarifying phrase “as defined in section 212(a)(9)(B)(ii) and (iii) of the Act” to 8 CFR 208.13(d)(2)(i)(D) and 1208.13(d)(2)(i)(D) consistent with the intent of the NPRM. Eighth, the Departments are clarifying the language in 8 CFR 208.1(g) and 1208.1(g) to alleviate apparent confusion and improve consistency with the intent of the NPRM regarding the use of stereotypes as evidence 2 The NPRM did not use the term “rogue official” in 8 CFR 1208.16(b)(3)(iv); rather it referred to “officials acting outside their official capacity.” The discrepancy regarding this phrasing between 8 CFR 208.16(b)(3)(iv) 8 CFR 1208.16(b)(3)(iv) in the NPRM was inadvertent, and the Departments are correcting it accordingly in both regulations in the final rule. for an asylum claim. A bald statement that a country or its denizens have a particular cultural trait that causes citizens, nationals, or residents of that country to engage in persecution is evidence lacking in probative value and has no place in an adjudication. Ninth, the Departments are making conforming edits to 8 CFR 208.6(a) and (b) and 8 CFR 1208.6(a) and (b) to make clear that the disclosure provisions of 8 CFR 208.6 and 1208.6 apply to applications for withholding of removal under the INA and for protection under the regulations implementing the CAT3, and not solely to asylum applications. That point is already clear in 8 CFR 208.6(d), (e) and 1208.6(d), (e), and the Departments see no reason not to conform the other paragraphs in that section for consistency. Tenth, and relatedly, the Departments are making edits to 8 CFR 208.6(a), (b), (d) and (e) and 8 CFR 1208.6(a) and (b), (d), and (e) to make clear that applications for refugee admission pursuant to INA 207(c)(1), 8 U.S.C.
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