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DEPARTMENT OF HOMELAND DATES: This rule is effective on January bond, reports, entries, and other papers, SECURITY 11, 2021. issue such instructions, review such FOR FURTHER INFORMATION CONTACT: administrative determinations in 8 CFR Parts 208 and 235 Lauren Alder Reid, Assistant Director, immigration proceedings, delegate such RIN 1615–AC42 Office of Policy, Executive Office for authority, and perform such other acts Immigration Review, 5107 Leesburg as the Attorney General determines to DEPARTMENT OF JUSTICE Pike, Falls Church, VA 22041, telephone be necessary for carrying out this (703) 305–0289 (not a toll-free call). section.’’ INA 103(g)(2), 8 U.S.C. 1103(g)(2); HSA, sec. 1102, 116 Stat. Executive Office for Immigration SUPPLEMENTARY INFORMATION: Review 2135, 2274. I. Executive Summary of the Final Rule B. Changes in the Final Rule 8 CFR Parts 1003, 1208, and 1235 On June 15, 2020, the Departments Through the NPRM, the Departments [EOIR Docket No. 18–0102; A.G. Order No. published an NPRM that would amend sought to satisfy a basic tenet of asylum 4922–2020] the regulations governing credible fear law: To assert a ‘‘government’s right and determinations to establish streamlined RIN 1125–AA94 duty to protect its own resources and proceedings under a clarified standard citizens, while aiding those in true need Procedures for Asylum and of review. Procedures for Asylum and of protection from harm.’’ 85 FR at Withholding of Removal; Credible Fear Withholding of Removal; Credible Fear 36265 (citations omitted). To achieve and Reasonable Fear Review and Reasonable Fear Review, 85 FR this dual aim, the Departments 36264 (June 15, 2020). The proposed proposed numerous amendments to the AGENCY: Department of Homeland rule would also amend regulations DHS and DOJ regulations.1 After Security; Executive Office for regarding asylum, statutory withholding carefully reviewing all of the comments Immigration Review, Department of of removal, and withholding and received on the NPRM, the Departments Justice. deferral of removal under the are making the following changes to the ACTION: Final rule. regulations. Id. final rule. The following discussion describes This final rule makes thirteen non- SUMMARY: On June 15, 2020, the the provisions of the final rule, which substantive changes to the regulatory Department of Homeland Security is substantially the same as the NPRM, provisions in the proposed rule, some of (‘‘DHS’’) and the Department of Justice and summarizes the changes made in which were noted by commenters. First, (‘‘DOJ’’) (collectively ‘‘the the final rule. the final rule corrects a typographical Departments’’) published a notice of A. Authority and Legal Framework error—i.e. ‘‘part’’ rather than ‘‘party’’— proposed rulemaking (‘‘NPRM’’ or in 8 CFR 208.30(e)(2)(ii), which was ‘‘proposed rule’’) that would amend the The Departments are publishing this proposed to read, ‘‘Such other facts as regulations governing credible fear final rule pursuant to their respective are known to the officer, including determinations. The proposed rule authorities under the Immigration and whether the alien could avoid a future would make it so that individuals found Nationality Act (‘‘INA’’) as amended by threat to his or her life or freedom by to have a credible fear will have their the Homeland Security Act of 2002 relocating to another party of the claims for asylum, withholding of (‘‘HSA’’), Public Law 107–296, 116 Stat. proposed country of removal and, under removal under section 241(b)(3) of the 2135. all circumstances, it would be Immigration and Nationality Act (‘‘INA’’ The INA, as amended by the HSA, reasonable to expect the applicant to do or ‘‘the Act’’) (‘‘statutory withholding of charges the Secretary ‘‘with the so’’ (emphasis added). Second, the removal’’), or protection under the administration and enforcement of this Departments added the word ‘‘for’’ to regulations issued pursuant to the chapter [titled ‘‘Immigration and correct the form name ‘‘Application for legislation implementing the Nationality’’] and all other laws relating Asylum and for Withholding of Convention Against Torture and Other to the immigration and naturalization of Removal’’ at 8 CFR 208.31(g)(2), Cruel, Inhuman, or Degrading Treatment aliens’’ and granted the Secretary the 1208.30(g)(2)(iv)(B), and 1208.31(g)(2). or Punishment (‘‘CAT’’), adjudicated by power to take all actions ‘‘necessary for Third, the Departments are replacing the an immigration judge within the carrying out’’ the provisions of the word ‘‘essential’’ with the word Executive Office for Immigration immigration and nationality laws. INA ‘‘material’’ in 8 CFR 208.20(c)(1) and Review (‘‘EOIR’’) in streamlined 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) 1208.20(c)(1), consistent with the stated proceedings (rather than under section and (3); See HSA, sec. 1102, 116 Stat. intent of the NPRM. 240 of the Act), and to specify what at 2273–74; Consolidated Fourth, the Departments are making standard of review applies in such Appropriations Resolution of 2003, stylistic revisions to 8 CFR 208.15(a)(1) streamlined proceedings. The Public Law 108–7, sec. 105, 117 Stat. 11, and 1208.15(a)(1), including breaking Departments further proposed changes 531. them into three subparagraphs, to make to the regulations regarding asylum, The HSA charges the Attorney them easier to follow and to reduce the statutory withholding of removal, and General with ‘‘such authorities and risk of confusion. Fifth, the Departments withholding and deferral of removal functions under this chapter and all under the Convention Against Torture other laws relating to the immigration 1 In addition to the amendments outlined in more (‘‘CAT’’) regulations. The Departments and naturalization of aliens as were detail herein, the Departments also proposed also proposed amendments related to [previously] exercised by [EOIR], or by additional minor amendments for clarity, such as replacing references to the former Immigration and the standards for adjudication of the Attorney General with respect to Naturalization Service with references to DHS applications for asylum and statutory [EOIR] . . . .’’ INA 103(g)(1), 8 U.S.C. where appropriate (see, e.g., 8 CFR 208.13(b)(3)(ii)) withholding. This final rule (‘‘rule’’ or 1103(g)(1); see 6 U.S.C. 521; HSA, sec. or replacing forms listed by form number with the ‘‘final rule’’) responds to comments 1102, 116 Stat. at 2274. form’s name (see, e.g., 8 CFR 1003.42(e)). The Departments also further reiterate the full received in response to the NPRM and Furthermore, the Attorney General is explanation and justifications for the proposed generally adopts the NPRM with few authorized to ‘‘establish such changes set out in the preamble to the NPRM. 85 substantive changes. regulations, prescribe such forms of FR at 36265–88.

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are editing the temporal language in 8 207(c)(1), 8 U.S.C. 1157(c)(1), and 8 CFR Second, the final rule strikes the CFR 208.15(a)(3)(i) and (ii) and part 207 are subject to the same regulatory text changes proposed to 8 1208.15(a)(3)(i) for clarity and information disclosure provisions as CFR 103.5. Those changes were not consistency with similar language in 8 similar applications for asylum, discussed in the preamble to the NPRM CFR 208.15(a)(2) and 1208.15(a)(2). The withholding of removal under the INA, and were inadvertently included in the edited language clarifies the relevant and protection under the regulations NPRM’s proposed regulatory text. temporal scope to read ‘‘after departing implementing the CAT. The Third, the final rule reinserts the his country of nationality or last Departments already apply the consideration—of-novel-or-unique- habitual residence and prior to arrival in disclosure provisions to such issues language in 8 CFR 208.30(e)(4) or entry into the United States’’ in lieu applications as a matter of policy and that was inadvertently proposed to be of the language in the NPRM. Sixth, the see no basis to treat such applications removed in the NPRM, with Departments are striking the differently than those for protection modifications to account for changes in parenthetical phrase ‘‘(‘‘rogue official’’)’’ filed by aliens already in or arriving in terminology adopted via this final rule in 8 CFR 208.18(a)(1) and 1208.18(a)(1). the United States. Eleventh, the (specifically, ‘‘[i]n determining whether Relatedly, they are replacing the Departments are amending 8 CFR the alien has a credible fear of remaining uses of the phrase ‘‘rogue 208.13(d)(2)(ii) to reflect that, persecution, as defined in section official’’ in 8 CFR 208.16(b)(3)(iv), operationally, DHS may refer or deny an 235(b)(1)(B)(v) of the Act, or a 208.18(a)(1), and 1208.18(a)(1) with its asylum application, depending on the reasonable possibility of persecution or definition, ‘‘public official who is not circumstances of the applicant. See 8 torture, the asylum officer shall consider acting under color of law.’’ 2 Seventh, CFR 208.14. Twelfth, the Departments whether the alien’s case presents novel the Departments are adding the are correcting 8 CFR 1208.30(g)(1)(i), (ii) or unique issues that merit clarifying phrase ‘‘as defined in section to reflect that asylum officers issue consideration in a full hearing before an 212(a)(9)(B)(ii) and (iii) of the Act’’ to 8 determinations, not orders. See 8 CFR immigration judge.’’). CFR 208.13(d)(2)(i)(D) and 208.30(e). Fourth, this final rule removes the 1208.13(d)(2)(i)(D) consistent with the Thirteenth, EOIR is making a following sentence from the proposed 8 intent of the NPRM. Eighth, the conforming change to 8 CFR 1244.4(b) CFR 208.30(e)(4): ‘‘An asylum officer’s Departments are clarifying the language to align it with the both the appropriate determination will not become final in 8 CFR 208.1(g) and 1208.1(g) to statutory citation and the corresponding until reviewed by a supervisory asylum alleviate apparent confusion and language in 8 CFR 244.4(b). Aliens officer.’’ Nearly identical text already improve consistency with the intent of described in INA 208(b)(2)(A), 8 U.S.C. exists in 8 CFR 208.30(e)(8) and would the NPRM regarding the use of 1158(b)(2)(A), including those subject to be repetitive to include in 8 CFR stereotypes as evidence for an asylum the firm resettlement bar contained in 208.30(e)(4). claim. A bald statement that a country INA 208(b)(2)(A)(vi), 8 U.S.C. In response to issues raised by or its denizens have a particular cultural 1158(b)(2)(A)(vi), are ineligible for commenters or to eliminate potential trait that causes citizens, nationals, or Temporary Protected Status. That confusion caused by the drafting in the residents of that country to engage in statutory ineligibility ground is NPRM, the Departments are making five persecution is evidence lacking in incorporated into regulations in both additional changes to the NPRM in the probative value and has no place in an chapter I and chapter V of title 8; final rule. First, the Departments are adjudication. however, while the title I provision, 8 amending the waiver provision in 8 CFR Ninth, the Departments are making CFR 244.4(b), cites the correct statutory 208.1(c) and 1208.1(c) related to claims conforming edits to 8 CFR 208.6(a) and provision—INA 208(b)(2)(A)(vi), 8 of ineffective assistance of counsel to (b) and 8 CFR 1208.6(a) and (b) to make U.S.C. 1158(b)(2)(A)(vi)—the title V provide an exception for egregious clear that the disclosure provisions of 8 provision, 8 CFR 1244.4(b), maintains conduct on the part of counsel. As CFR 208.6 and 1208.6 apply to an outdated reference to an incorrect discussed, infra, the Departments applications for withholding of removal statutory provision. Compare 8 CFR believe that cognizable ineffective under the INA and for protection under 244.4(b) (referencing INA 208(b)(2)(A), 8 assistance of counsel claims in the the regulations implementing the CAT,3 U.S.C. 1158(b)(2)(A)), with 8 CFR context of failing to assert a particular and not solely to asylum applications. 1244.4(b) (referencing former INA social group should be extremely rare. If That point is already clear in 8 CFR 243(h)(2), 8 U.S.C. 1253(h)(2)). a particular social group is not asserted 208.6(d), (e) and 1208.6(d), (e), and the The Departments are also making four because the alien did not tell his or her Departments see no reason not to non-substantive changes in the final counsel about it, then there has been no conform the other paragraphs in that rule to correct regulatory provisions that ineffective assistance on the part of section for consistency. Tenth, and were inadvertently changed or deleted counsel. If the alien did provide his or relatedly, the Departments are making in the proposed rule or that introduced her counsel with a particular social edits to 8 CFR 208.6(a), (b), (d) and (e) an unnecessary redundancy. First, the group and counsel elected not to present and 8 CFR 1208.6(a) and (b), (d), and (e) final rule reinserts language relating to it as a strategic choice, then there is no to make clear that applications for DHS’s ability to reconsider a negative basis to reopen the proceedings. See refugee admission pursuant to INA credible fear finding that has been Matter of B–B-, 22 I&N Dec. at 310 concurred upon by an immigration (‘‘subsequent dissatisfaction with a 2 The NPRM did not use the term ‘‘rogue official’’ judge after providing notice of its strategic decision of counsel is not in 8 CFR 1208.16(b)(3)(iv); rather it referred to reconsideration to the immigration grounds to reopen’’). Nevertheless, the ‘‘officials acting outside their official capacity.’’ The judge, which was inadvertently Departments recognize there may be sui discrepancy regarding this phrasing between 8 CFR 208.16(b)(3)(iv) 8 CFR 1208.16(b)(3)(iv) in the removed from 8 CFR generis situations in which ‘‘egregious NPRM was inadvertent, and the Departments are 1208.30(g)(2)(iv)(A) in the NPRM. The circumstances’’ may warrant reopening correcting it accordingly in both regulations in the final rule reinserts that language in 8 due to ineffective assistance of counsel final rule. CFR 208.30(g)(2)(i); it pertains to a DHS in this context, provided that 3 See UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading procedure and, thus, appropriately appropriate procedural requirements for Treatment or Punishment, 10 December 1984, belongs in chapter I, rather than chapter such a claim are observed. Thus, the United Nations, Treaty Series, vol. 1465, p. 85. V, of title 8. Departments are adding such an

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exception to the final rule, consistent assume categorically that such an alien Departments are deleting the sentence with existing case law. See id. (‘‘The could not have filed an application for from 8 CFR 208.20(b) and 1208.20(b) respondents opted for a particular protection in another country. regarding an alien’s opportunity to strategy and form of relief, and although Consequently, the Departments find that address issues with his or her claim they might wish to fault their former no age exemption is warranted in 8 CFR after receiving the statutory warning attorney and recant that decision, they 208.13(d)(1)(ii) and 1208.13(d)(1)(ii). regarding the knowing filing of a are nonetheless bound by it, unless they Further, as discussed, infra, there is no frivolous asylum application to avoid can show egregious conduct on reason that an alien of any age would any residual confusion on the point. counsel’s part.’’); see also Matter of need to use fraudulent documents to Velasquez, 19 I&N Dec. 377, 377 (BIA enter the United States in order to seek The following discussion describes 1986) (concession of attorney is binding asylum. Accordingly, no age exemption the provisions of the final rule, which on an alien absent egregious is warranted in 8 CFR 208.13(d)(1)(iii) are substantially the same as the NPRM, circumstances). and 1208.13(d)(1)(iii). Even without age and also incorporates the changes made Second, the Departments are exemptions, the Departments note that in the final rule summarized above. amending the language in 8 CFR these discretionary factors do not C. Provisions of the Final Rule 208.1(e) and 1208.1(e) regarding when constitute bars to asylum and that threats may constitute persecution to adjudicators may appropriately consider 1. Expedited Removal and Screenings in clarify that particularized threats of an applicant’s age in assessing whether the Credible Fear Process severe harm of an immediate and a particular application warrants being menacing nature made by an identified granted as a matter of discretion. 1.1. Asylum-and-Withholding-Only entity or person may constitute Fourth, in response to commenters’ Proceedings for Aliens With Credible persecution, though the Departments concerns about the applicable effective Fear expect that such cases will be rare. This date of the frivolousness provisions in 8 DOJ is amending 8 CFR 1003.1, 8 CFR revision, as discussed infra, is CFR 208.20 and 1208.20, the consistent with existing case law. See Departments have clarified the language 1003.42(f), 8 CFR 1208.2, 8 CFR Duran-Rodriguez v. Barr, 918 F.3d 1025, in those provisions. The amendments to 1208.30, and 8 CFR 1235.6—and DHS is 1028 (9th Cir. 2019) (‘‘death threats those provisions provided in this rule amending 8 CFR 208.2(c), 8 CFR alone can constitute persecution’’ but apply only to asylum applications filed 208.30(e)(5) and (f), and 8 CFR ‘‘they constitute ‘persecution in only a on or after the effective date of the rule. 235.6(a)(1)—so that aliens who establish small category of cases, and only when The current definition of a credible fear of persecution, a the threats are so menacing as to cause ‘‘frivolousness’’ will continue to apply reasonable possibility of persecution, or significant actual suffering or harm’ ’’ to asylum applications filed between a reasonable possibility of torture and (citation omitted)). As noted, threats April 1, 1997, and the effective date of accordingly receive a positive fear ‘‘combined with confrontation or other the rule. determination would appear before an mistreatment’’ are likely to be Fifth, to avoid confusion and immigration judge for ‘‘asylum-and- persecution; however, ‘‘cases with potential conflict between the proposed withholding-only’’ proceedings under 8 threats alone, particularly anonymous language of 8 CFR 208.20(b) and CFR 208.2(c)(1) and 8 CFR 1208.2(c)(1). or vague ones, rarely constitute 1208.20(b) and 8 CFR 208.20(d) and Such proceedings would be adjudicated persecution.’’ Id. (citation omitted) 1208.20(d), the Departments are deleting in the same manner that currently (emphasis added); see also Juan Antonio language in the former regarding an applies to certain alien crewmembers, alien’s opportunity to account for issues v. Barr, 959 F.3d 778, 794 (6th Cir. 2020) stowaways, and applicants for (threats alone amount to persecution with a claim. The intent of the NPRM, admission under the Visa Waiver only when they are ‘‘of the most expressed unequivocally in the Program, among other categories of immediate and menacing nature’’ proposed addition of 8 CFR 208.20(d) (citation omitted)). and 1208.20(d), was clear that aliens who are not entitled by statute to Third, in recognition of commenters’ adjudicators would not be required to proceedings under section 240 of the concerns and the reality that aliens provide ‘‘multiple opportunities for an Act, 8 U.S.C. 1229a. See 8 CFR under the age of 18, especially very alien to disavow or explain a knowingly 208.2(c)(1)(i)–(viii), 1208.2(c)(1)(i)– young children, may not have frivolous application.’’ 85 FR at 36276. (viii).4 Additionally, to ensure that these decisional independence regarding an The Departments inadvertently retained claims receive the most expeditious illegal entry into the United States, the language from the current rule in the consideration possible, the Departments Departments are amending 8 CFR proposed additions of 8 CFR 208.20(b) are amending 8 CFR 208.5 and 8 CFR 208.13(d)(1)(i) and 1208.13(d)(1)(i) to and 1208.20(b), however, that was in 1208.5 to require DHS to make available reflect that an unlawful or attempted tension with that intent. Compare, e.g., appropriate applications and relevant unlawful entry into the United States by 8 CFR 208.20(b) (proposed) (‘‘Such warnings to aliens in its custody who an alien under the age of 18 will not be finding [of frivolousness] will only be have expressed a fear in the expedited considered as a significant adverse made if the asylum officer is satisfied removal process and received a positive discretionary factor in considering a that the applicant has had sufficient determination. The Departments believe subsequent asylum application filed by opportunity to account for any that this change would bring the such an alien. The Departments do not discrepancies or implausible aspects of proceedings in line with the statutory believe that a similar exception is the claim.’’), with 8 CFR 208.20(d) objective that the expedited removal warranted in 8 CFR 208.13(d)(1)(ii) and (proposed) (‘‘If the alien has been process be streamlined and efficient. (iii), and 1208.13(d)(1)(ii) and (iii), provided the warning required by however. For (d)(1)(ii) to apply to an section 208(d)(4)(A) of the Act, he or she 4 alien under the age of 18, that alien need not be given any additional or In addition, DOJ proposed a technical correction to 8 CFR 1003.1(b), which establishes the must have filed an asylum application further opportunity to account for any jurisdiction of the BIA, to correct the reference to in the United States, notwithstanding issues with his or her claim prior to the 8 CFR 1208.2 in paragraph (b)(9) and ensure that any language barriers or other entry of a frivolous finding.’’). the regulations accurately authorize BIA review in impediments; thus, there is no reason to Accordingly, in the final rule, the ‘‘asylum-and-withholding-only’’ proceedings.

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1.2. Consideration of Precedent in Departments are amending 8 CFR statutory withholding of removal and Credible Fear Determinations 208.30 and 8 CFR 1208.30 to raise the CAT protection claims is a mismatch DOJ is adding language to 8 CFR standard of proof in credible fear with EOIR’s current regulation, which 1003.42(f) to specify that an screenings from a significant possibility does not provide for a reasonable immigration judge will consider that the alien can establish eligibility for possibility review process in the statutory withholding of removal to a applicable legal precedent when expedited removal context. Therefore, reasonable possibility that the alien reviewing a negative fear determination. DOJ is modifying 8 CFR 1208.30(g) to would be persecuted because of his or This instruction would be in addition to clarify that credible fear of persecution her race, religion, nationality, those currently listed in 8 CFR 1003.42 determinations (i.e., screening for membership in a particular social group, to consider the credibility of the alien’s asylum eligibility) would continue to be or political opinion. See 8 CFR 208.16, statements and other facts of which the reviewed under a ‘‘credible fear’’ 208.30(e)(2), 1208.16. Similarly, for immigration judge is aware. These aliens expressing a fear of torture, the (significant possibility) standard, but changes would codify in the regulations Departments are amending 8 CFR screening determinations for eligibility the current practice and provide a clear 208.30 and 8 CFR 1208.30 to raise the for statutory withholding of removal requirement to immigration judges that standard of proof from a significant and protection under the CAT they must consider and apply all possibility that the alien is eligible for regulations would be reviewed under a applicable law, including administrative withholding or deferral of removal ‘‘reasonable possibility’’ standard. precedent from the Board of under the CAT regulations to a Additionally, to clarify terminology in Immigration Appeals (‘‘BIA’’), decisions reasonable possibility that the alien of the Attorney General, decisions of the 8 CFR 208.30(d)(2), mention of the Form would be tortured in the country of M–444, Information about Credible Fear Federal courts of appeals binding in the removal. See 8 CFR 208.18(a), jurisdiction where the immigration Interview in Expedited Removal Cases, 208.30(e)(3), 1208.18(a); 85 FR at 36268. is replaced with mention of relevant judge conducting the review sits, and Consistent with INA 235(b)(1)(B)(v), 8 decisions of the Supreme Court. information regarding the ‘‘fear U.S.C. 1225(b)(1)(B)(v), the asylum determination process.’’ This change eligibility screening standard (a 1.3. Remove and Reserve DHS-Specific clarifies that DHS may relay information Procedures From DOJ Regulations significant possibility that the alien could establish eligibility for asylum) regarding screening for a reasonable DOJ is removing and reserving the currently applied in credible fear possibility of persecution and a following provisions in chapter V of 8 screenings remains unchanged. See INA reasonable possibility of torture, in CFR: 8 CFR 1235.1, 8 CFR 1235.2, 8 CFR 235(b)(1)(B)(v), 8 U.S.C. addition to a credible fear of 1235.3, and 8 CFR 1235.5. When the 1225(b)(1)(B)(v). By clarifying and persecution. Department first incorporated part 235 applying the ‘‘reasonable possibility’’ DHS is also revising the language in into 1235, it stated that ‘‘nearly all of the standard to the statutory withholding of 8 CFR 208.30(e)(1) to interpret the provisions * * * affect bond hearings removal screening and the torture- ‘‘significant possibility’’ standard that before immigration judges.’’ Aliens and related screening under the CAT Congress established in section Nationality; Homeland Security; regulations, the alien’s screening Reorganization of Regulations, 68 FR 235(b)(1)(B)(v) of the Act, 8 U.S.C. burdens would become adequately 1225(b)(1)(B)(v). 9823, 9826 (Feb. 28, 2003). Upon further analogous to the merits burdens, where review, the Department determined that the alien’s burdens for statutory In comparison to the NPRM, this final these sections regard procedures that are withholding of removal and protections rule is correcting a typographical error— specific to DHS’s examinations of under the CAT regulations are higher i.e. ‘‘part’’ rather than ‘‘party’’—in 8 applicants for admission as set forth in than the burden for asylum. CFR 208.30(e)(2)(ii). The sentence now 8 CFR 235.1, 8 CFR 235.2, 8 CFR 235.3, The Departments are also amending 8 reads: ‘‘Such other facts as are known to and 8 CFR 235.5, and do not need to be CFR 208.30, 8 CFR 1208.30, and 8 CFR the officer, including whether the alien duplicated in the regulations for EOIR 1003.42 to refer to the screenings of could avoid a future threat to his or her in Chapter V, except for the provisions aliens in expedited removal proceedings life or freedom by relocating to another in 8 CFR 1235.4, relating to the and of stowaways for statutory part of the proposed country of removal withdrawal of an application for withholding of removal as ‘‘reasonable and, under all circumstances, it would admission, and 8 CFR 1235.6, relating to possibility of persecution’’ be reasonable to expect the applicant to the referral of cases to an immigration determinations and the screening for do so[.]’’ In addition, this final rule adds judge. withholding and deferral of removal the word ‘‘for’’ to correct the form name In comparison to the NPRM, this final under the CAT regulations as ‘‘Application for Asylum and for rule is making an additional technical ‘‘reasonable possibility of torture’’ Withholding of Removal’’ at 8 CFR amendment by updating the outdated determinations, in order to avoid 1208.30(g)(2)(iv)(B). This final rule also reference to ‘‘the Service’’ in 8 CFR confusion between the different reinserts language allowing DHS to 1235.6(a)(1)(ii) to read ‘‘DHS.’’ standards of proof. In conjunction with the edits to DHS’s reconsider a negative credible fear 1.4. Reasonable Possibility Standard for regulation in 8 CFR 208.30, DOJ is finding that has been concurred upon by Statutory Withholding of Removal and amending 8 CFR 1208.30. Currently, an immigration judge after providing Torture-Related Fear Determinations after an asylum officer determines that notice of its reconsideration to the The Departments are amending 8 CFR an alien lacks a credible fear of immigration judge, which was 208.30 and 8 CFR 1208.30 to clarify and persecution or torture, the regulation inadvertently removed from 8 CFR raise the statutory withholding of provides that an immigration judge in 1208.30(g)(2)(iv)(A) in the NPRM. The removal screening standard and the EOIR reviews that determination under final rule reinserts that language in 8 torture-related screening standard under the credible fear (‘‘significant CFR 208.30(g)(2)(i) because it pertains to the CAT regulations for aliens in possibility’’) standard. 8 CFR 208.30(g), a DHS procedure and, thus, expedited removal proceedings and 1208.30(g). DHS’s ‘‘reasonable appropriately belongs in chapter I, stowaways. Specifically, the possibility’’ screening standard for rather than chapter V, of title 8.

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1.5. Amendments to the Credible Fear statutory withholding of removal torture, in which case he or she would Screening Process adjudications is different from the be referred to the immigration court for The Departments further amend 8 standard that considers internal asylum-and-withholding-only CFR 208.30, 8 CFR 1208.30, and 8 CFR relocation in the context of protection proceedings. In those proceedings, the 1003.42 to make several additional under the CAT regulations. See alien would have the opportunity to technical and substantive amendments generally Maldonado v. Lynch, 786 F.3d raise whether he or she was correctly regarding fear interviews, 1155, 1163 (9th Cir. 2015) (noting the identified as being subject to the bar(s) determinations, and reviews of marked difference between the asylum to asylum and withholding of removal determinations. The Departments and CAT regulations concerning and also pursue protection under the amend 8 CFR 208.30(a) and 8 CFR internal relocation). CAT regulations. Additionally, under 8 CFR 1208.30(a) to clearly state that the In addition, the Departments are 208.30(e)(5), DHS has used a respective sections describe the adding asylum and statutory ‘‘reasonable fear’’ standard (identical to exclusive procedures applicable to withholding eligibility bar the ‘‘reasonable possibility’’ standard applicants for admission who are found considerations in 8 CFR 208.30(e)(1)(iii) and (e)(2)(iii), and 8 CFR 1003.42(d). enunciated in this rule) in procedures inadmissible pursuant to section related to aliens barred from asylum 212(a)(6)(C) or 212(a)(7) of the Act, 8 Currently, 8 CFR 208.30(e)(5)(i) provides that if an alien, other than a under two interim final rules issued by U.S.C. 1182(a)(6)(C) or 1182(a)(7), and the Departments,5 as described in 8 CFR receive ‘‘credible fear’’ interviews, stowaway, is able to establish a credible fear of persecution or torture but also determinations, and reviews under 5 On July 16, 2019, the Departments issued an section 235(b)(1)(B) of the Act, 8 U.S.C. appears to be subject to one or more of interim final rule providing that certain aliens 1225(b)(1)(B). the mandatory eligibility bars to asylum described in 8 CFR 208.13(c)(4) or 1208.13(c)(4) DHS is clarifying the existing or statutory withholding of removal, who enter, attempt to enter, or arrive in the United then the alien will be placed in section States across the southern land border on or after ‘‘credible fear’’ screening process in 8 such date, after transiting through at least one CFR 208.30(b), which states that if an 240 proceedings. The Departments are country outside the alien’s country of citizenship, alien subject to expedited removal amending 8 CFR 208.30 to apply nationality, or last lawful habitual residence en indicates an intention to apply for mandatory bars to applying for or being route to the United States, will be found ineligible granted asylum at the credible fear for asylum (and, because they are subject to this bar, asylum or expresses a fear of not be able to establish a credible fear of persecution or torture, or a fear of screening stage for aliens in expedited persecution) unless they qualify for certain return, an inspecting officer shall not removal proceedings and for stowaways, exceptions. See Asylum Eligibility and Procedural proceed further with removal until the such that if a mandatory bar to applying Modifications, 84 FR 33829 (July 16, 2019). On July 24, 2019, the U.S. District Court for the Northern alien has been referred for an interview for or being granted asylum applies, the District of California enjoined the Departments with an asylum officer, as provided in alien would be unable to show a ‘‘from taking any action continuing to implement section 235(b)(1)(A)(ii) of the Act, 8 significant possibility of establishing the Rule’’ and ordered the Departments ‘‘to return U.S.C. 1225(b)(1)(A)(ii). The rule also eligibility for asylum. In 8 CFR to the pre-Rule practices for processing asylum applications.’’ E. Bay Sanctuary Covenant v. Barr, states that the asylum officer would 208.30(e)(5), DHS requires asylum 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019). On screen the alien for a credible fear of officers to determine (1) whether an August 16, 2019, the U.S. Court of Appeals for the persecution and, as appropriate, a alien is subject to one or more of the Ninth Circuit issued a partial stay of the reasonable possibility of persecution mandatory bars to being able to apply preliminary injunction so that the injunction remained in force only in the Ninth Circuit. E. Bay and a reasonable possibility of torture, for asylum under section 208(a)(2)(B)– Sanctuary Covenant v. Barr, 934 F.3d 1026, 1028 and conduct an evaluation and (D) of the Act, 8 U.S.C. 1158(a)(2)(B)– (9th Cir. 2019). On September 9, 2019, the district determination in accordance with 8 CFR (D), or the bars to asylum eligibility court then reinstated the nationwide scope of the under section 208(b)(2) of the Act, 8 injunction. E. Bay Sanctuary Covenant v. Barr, 391 208.9(c), which is consistent with F. Supp. 3d 974 (N.D. Cal. 2019). Two days later, current policy and practice. These U.S.C. 1158(b)(2), including any the Supreme Court stayed the district court’s proposals aim to provide greater eligibility bars established by regulation injunction. Barr v. East Bay Sanctuary Covenant, transparency and clarity with regard to under section 208(b)(2)(C) of the Act, 8 140 S. Ct. 3 (2019). On July 6, 2020, the Ninth Circuit affirmed the district court’s injunction. E. fear screenings. U.S.C. 1158(b)(2)(C); and (2) if so, Bay Sanctuary Covenant v. Barr, 964 F.3d 832 (9th DHS is also including consideration whether the bar at issue is also a bar to Cir. 2020). Additionally, on June 30, 2020, the of internal relocation in the context of statutory withholding of removal and interim final rule was vacated by the D.C. District 8 CFR 208.30(e)(1)–(3), which outline withholding of removal under the CAT Court in Capital Area Immigrants’ Rights (‘‘CAIR’’) Coalition, et al. v. Trump, 19–cv–02117 (D.D.C. the procedures for determining whether regulations. If a mandatory bar to 2020) and I.A., et al. v. Barr, 19–cv–2530 (D.D.C. aliens have a credible fear of asylum applies, the alien will then be 2020). persecution, a reasonable possibility of screened only for statutory withholding On November 9, 2018, the Departments issued an persecution, and a reasonable of removal or withholding or deferral of interim final rule providing that certain aliens possibility of torture. Considering removal under the CAT regulations. If described in 8 CFR 208.13(c)(3) or 8 CFR 1208.13(c)(3) who entered the United States in internal relocation in the ‘‘credible fear’’ the alien is subject to a mandatory bar contravention of a covered Presidential screening context is consistent with to asylum that is also a mandatory bar proclamation or order are barred from eligibility for existing policy and practice, and the to statutory withholding of removal, asylum. See Aliens Subject to a Bar on Entry Under regulations addressing internal then the alien will be screened only for Certain Presidential Proclamations; Procedures for Protection Claims, 83 FR 55934 (Nov. 9, 2018). On relocation at 8 CFR 208.16(c)(3)(ii) and deferral of removal under the CAT December 19, 2018, the U.S. District Court for the 8 CFR 1208.16(c)(3)(ii) (protection regulations. An alien who could Northern District of California enjoined the under the CAT regulations); 8 CFR establish a credible fear of persecution Departments ‘‘from taking any action continuing to 208.13(b)(1)(i)(B) and 8 CFR or reasonable possibility of persecution implement the Rule’’ and ordered the Departments ‘‘to return to the pre-Rule practices for processing 1208.13(b)(1)(i)(B) (asylum); and 8 CFR but for the fact that he or she is subject asylum applications.’’ E. Bay Sanctuary Covenant v. 208.16(b)(1)(i)(B) and 8 CFR to one of the bars that applies to both Trump, 354 F. Supp. 3d 1094, 1121 (N.D. Cal. 1208.16(b)(1)(i)(B) (statutory asylum and statutory withholding of 2018). On February 28, 2020, the U.S. Court of withholding). The regulatory standard removal would receive a negative fear Appeals for the Ninth Circuit affirmed the injunction. E. Bay Sanctuary Covenant v. Trump, that governs consideration of internal determination, unless the alien could 950 F.3d 1242, 1284 (9th Cir. 2020). The relocation in the context of asylum and establish a reasonable possibility of Departments in this rule do not make any

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208.13(c)(3)–(4). The Departments consider whether the alien’s case frivolous asylum applications and to include technical edits in 8 CFR presents novel or unique issues that refer the cases on that basis to 208.30(e)(5), to change ‘‘reasonable fear’’ merit consideration in a full hearing immigration judges (for aliens not in to ‘‘reasonable possibility’’ to align the before an immigration judge.’’ Also, this lawful status) or to deny the terminology with the other proposed final rule removes one sentence from applications (for aliens in lawful status). changes in this rule. Similarly, DOJ the proposed 8 CFR 208.30(e)(4)—‘‘An 8 CFR 208.20(b), 1208.20(b). For an makes technical edits in 8 CFR asylum officer’s determination will not alien not in lawful status, a finding by 1208.30(g)(1) and 8 CFR 1003.42(d)— become final until reviewed by a an asylum officer that an asylum both of which refer to the ‘‘reasonable supervisory asylum officer’’—because application is frivolous would not fear’’ standard in the current version of similar text already exists in 8 CFR render an alien permanently ineligible 8 CFR 208.30(e)(5)—to change the 208.30(e)(8) and it would be repetitive for immigration benefits unless an ‘‘reasonable fear’’ language to to include it in 8 CFR 208.30(e)(4). immigration judge or the BIA ‘‘reasonable possibility.’’ These edits are subsequently makes a finding of purely technical and would not amend, 2. Amendments Related to the Filing frivolousness upon de novo review of alter, or impact the standard of proof Requirements and Elements for the application. Asylum officers would applicable to the fear screening process Consideration of Form I–589, apply the same definition used by and determinations, or review of such Application for Asylum and for immigration judges and the BIA under determinations, associated with the Withholding of Removal this rule. Id. This change would allow aforementioned bars. 2.1. Frivolous Applications U.S. Citizenship and Immigration Additionally, in 8 CFR 208.2(c)(1), 8 Services (‘‘USCIS’’) to more efficiently The Departments amend both 8 CFR CFR 1208.2(c)(1), 8 CFR 235.6(a)(2), and root out frivolous applications, deter 208.20 and 1208.20 regarding 8 CFR 1235.6(a)(2), the Departments frivolous filings, and reduce the number determinations that an asylum include technical edits to replace the of frivolous applications in the asylum application is frivolous. See INA term ‘‘credible fear of persecution or system. Additionally, an asylum officer 208(d)(6), 8 U.S.C. 1158(d)(6) (providing torture’’ with ‘‘a credible fear of who makes a finding of frivolousness that an alien found to have ‘‘knowingly persecution, reasonable possibility of would produce a record on that issue for made a frivolous application for persecution, or reasonable possibility of an immigration judge to review. Further, asylum’’ is ‘‘permanently ineligible for torture’’ to mirror the terminology used the proposed change is consistent with any benefits’’ under the Act). The in proposed 8 CFR 208.30 and 8 CFR congressional intent to ‘‘reduce the 1208.30. Moreover, in 8 CFR Departments propose the new standards likelihood that fraudulent or frivolous 1208.30(g)(2)(iv)(C), DOJ makes a in order to ensure that manifestly applications will enable deportable or technical edit to clarify that stowaways unfounded or otherwise abusive claims excludable aliens to remain in the U.S. barred from asylum and both statutory are rooted out and to ensure that for substantial periods.’’ S. Rep. No. and CAT withholding of removal may meritorious claims are adjudicated more 104–249, at 2 (1996). still be eligible for deferral of removal efficiently so that deserving applicants The Departments clarify that, as long under the CAT regulations. receive benefits in a timely fashion. as the alien has been given the notice of The Departments further amend 8 The Departments clarify the meaning the consequences of filing a frivolous CFR 208.30(g) and 8 CFR 1208.30(g)(2), of ‘‘knowingly’’ by providing that application, as required by section which address procedures for negative ‘‘knowingly’’ requires either actual 208(d)(4)(A) of the Act, 8 U.S.C. fear determinations for aliens in the knowledge of the frivolousness or 1158(d)(4)(A), the adjudicator need not expedited removal process. In 8 CFR willful blindness toward it. 8 CFR give the alien any additional or further 208.30(g)(1), the Departments treat an 208.20(a)(2), 1208.20(a)(2). The opportunity to account for any issues alien’s refusal to indicate whether he or Departments also amend the definition prior to the entry of a frivolousness she desires review by an immigration of ‘‘frivolous.’’ 8 CFR 208.20, finding. 8 CFR 208.20(d), 1208.20(d). judge as declining to request such 208.20(c)(1)–(4), 1208.20, 1208.20(c)(1)– The Departments have determined that review. Also, in 8 CFR 208.31, the (4). Under the new definition, if this provision is sufficient to comply Departments treat a refusal as declining knowingly made, an asylum application with the Act’s requirements, and that to request review within the context of would be properly considered frivolous there is no legal or operational reasonable fear determinations. if the adjudicator were to determine that justification for providing additional In comparison to the NPRM, this final it included a fabricated material opportunities to address aspects of a rule adds the word ‘‘for’’ to correct the element; that it was premised on false claim that may warrant a frivolousness form name to ‘‘Application for Asylum or fabricated evidence; that it was filed finding. The Departments believe the and for Withholding of Removal’’ at 8 without regard to the merits of the current regulatory framework, which CFR 208.31(g)(2) and 1208.31(g)(2). This claim; or that it was clearly foreclosed provides that an EOIR adjudicator may final rule also reinserts language by applicable law. The definition aligns only make a frivolous finding if he or concerning novel or unique issues in 8 with the Departments’ prior she ‘‘is satisfied that the applicant, CFR 208.30(e)(4) that was inadvertently understandings of frivolous during the course of the proceedings, proposed to be removed in the NPRM, applications, including applications that has had sufficient opportunity to with modifications to account for are clearly unfounded, abusive, or account for any discrepancies or changes in terminology adopted via this involve fraud, and the Departments implausible aspects of the claim,’’ has final rule. The language now reads: ‘‘In believe the definition would better not successfully achieved the determining whether the alien has a effectuate the intent of section 208(d)(6) Departments’ goal of preventing credible fear of persecution, as defined of the Act, 8 U.S.C. 1158(d)(6), to knowingly frivolous applications that in section 235(b)(1)(B)(v) of the Act, or discourage applications that make delay the adjudication of other asylum a reasonable possibility of persecution patently meritless or false claims. applications that may merit relief. or torture, the asylum officer shall In addition, the Departments allow As this rule would overrule Matter of asylum officers adjudicating affirmative Y–L–, 24 I&N Dec. 151 (BIA 2007), and amendments that would implement the rules at asylum applications to make findings revise the definition of ‘‘frivolous,’’ issue in the aforementioned cases. that aliens have knowingly filed adjudicators would not be required to

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provide opportunities for applicants to Matter of E–F–H–L–, 27 I&N Dec. 226 Departments adopt several procedural address discrepancies or implausible (A.G. 2018); see also Matter of A–B–, 27 requirements regarding the alien’s aspects of their claims if an applicant I&N Dec. 316, 340 (A.G. 2018) (‘‘Of responsibility to define the particular had been provided the warning required course, if an alien’s asylum application social group. Id. by INA 208(d)(4)(A) (8 U.S.C. is fatally flawed in one respect—for In comparison to the NPRM, this final 1158(d)(4)(A)). example, for failure to show rule amends the waiver provision in 8 In order to ameliorate the membership in a proposed social group CFR 208.1(c) and 1208.1(c) related to consequences of knowingly filing a * * *—an immigration judge or the claims of ineffective assistance of frivolous application in appropriate Board need not examine the remaining counsel based on a failure to define, or cases, however, the Departments elements of the asylum claim.’’). Other provide a basis for defining, a include a mechanism that would allow immigration applications are subject to formulation of a particular social group certain aliens in removal proceedings to pretermission when legally insufficient, before an immigration judge to provide withdraw, with prejudice, their and the INA and current regulations do an exception for egregious conduct on applications by disclaiming the not require asylum to be treated any the part of counsel. The Departments applications; accepting an order of differently. Such a decision would be believe that cognizable ineffective voluntary departure for a period of no based on the Form I–589 application assistance of counsel claims in the more than 30 days; withdrawing, also itself and any supporting evidence. context of failing to assert a particular with prejudice, all other applications for Under this rule, an immigration judge social group should be extremely rare. relief or protection; and waiving any may pretermit an asylum application in Nevertheless, the Departments recognize rights to file an appeal, motion to two circumstances: (1) Following an there may be unique situations in which reopen, and motion to reconsider. 8 CFR oral or written motion by DHS, and (2) ‘‘egregious conduct’’ on the part of 208.20(f), 1208.20(f). In such instances, sua sponte upon the immigration counsel may warrant reopening in this the aliens would not be subject to a judge’s own authority. Provided the context, provided that appropriate frivolousness finding and could avoid alien has had an opportunity to procedural requirements for such a the penalties associated with such a respond, and the immigration judge claim are observed. finding. In addition, the regulation does considers any such response, a hearing 2.4. Political Opinion not change current regulatory language would not be required for the that makes clear that a frivolousness immigration judge to make a decision to The Departments adopt amendments finding does not bar an alien from pretermit and deny the application. In to define ‘‘political opinion’’ and seeking statutory withholding of the case of the immigration judge’s provide other guidance for adjudicators removal or protection under the CAT exercise of his or her own authority, regarding applications for asylum or regulations. Finally, the Departments parties would have at least ten days’ statutory withholding of removal clarify that an application may be found notice before the immigration judge premised on the applicant’s political frivolous even if the application was would enter such an order. A similar opinion. These amendments would untimely. 8 CFR 208.20(e), 1208.20(e). timeframe would apply if DHS moves to provide additional clarity for In comparison to the NPRM, this final pretermit, under current practice. See adjudicators and better align the rule updates the frivolousness language EOIR, Immigration Court Practice regulations with statutory requirements in 8 CFR 208.20 and 8 CFR 1208.20 to Manual at D–1 (Aug. 2, 2018), https:// and general understanding that a further clarify that the new www.justice.gov/eoir/page/file/1084851/ political opinion is intended to advance frivolousness standards only apply download. or further a discrete cause related to prospectively to applications filed on or political control of the state. after the effective date of this final rule. 2.3. Particular Social Group Specifically, the Departments define This final rule also replaces the word The Departments adopt amendments ‘‘political opinion’’ for the purposes of ‘‘essential’’ with the word ‘‘material’’ in to codify long-standing standards from applications for asylum or for statutory 8 CFR 208.20(c)(1) and 1208.20(c)(1), case law regarding the cognizability of withholding of removal as an opinion consistent with the stated intent of the particular social groups and to provide expressed by or imputed to an applicant NPRM. Finally, to avoid confusion and clarity, allow for uniform application, in which the applicant possesses an potential conflict between the proposed and reduce the time necessary to ideal or conviction in support of the language of 8 CFR 208.20(b) and evaluate claims involving particular furtherance of a discrete cause related to 1208.20(b) and 8 CFR 208.20(d) and social groups. These requirements political control of a state or a unit 1208.20(d), this final rule deletes the would aid efficient litigation and avoid thereof. 8 CFR 208.1(d), 1208.1(d). following sentence from proposed 8 gamesmanship and piecemeal litigation. Additionally, the Departments adopt a CFR 208.20(b) and 1208.20(b): ‘‘Such Specifically, the Departments codify list of potential definitional bases for a finding will only be made if the asylum the requirements that (1) a particular political opinion that would not, in officer is satisfied that the applicant has social group must be (a) composed of general, support a favorable had sufficient opportunity to account members who share a common adjudication: A political opinion for any discrepancies or implausible immutable characteristic, (b) defined defined solely by generalized aspects of the claim.’’ with particularity, and (c) socially disapproval of, disagreement with, or distinct in the society in question; (2) opposition to criminal, terrorist, gang, 2.2. Pretermission of Applications the group must exist independently of guerilla, or other non-state organizations DOJ adds a new paragraph (e) to 8 the alleged persecutory acts; and (3) the absent expressive behavior in CFR 1208.13 to clarify that immigration group must not be defined exclusively furtherance of a cause against such judges may pretermit and deny an by the alleged harm. 8 CFR 208.1(c), organizations related to efforts by the application for asylum, statutory 1208.1(c). Additionally, the state to control such organizations or withholding of removal, or protection Departments list nine, non-exhaustive behavior that is antithetical to or under the CAT regulations if the alien circumstances that, if a particular social otherwise opposes the ruling legal entity has not established a prima facie claim group consisted of or was defined by, of the state or a legal sub-unit of the for relief or protection under the would not generally result in a favorable state. Id. Finally, consistent with section applicable laws and regulations. See adjudication. Id. Further, the 101(a)(42) of the Act, 8 U.S.C.

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1101(a)(42), the Departments provide Departments expect that such cases will regardless of the basis of the claim, the that a person who has been forced to be rare. See, e.g., Duran-Rodriguez v. Departments bar consideration of abort a pregnancy or to undergo Barr, 918 F.3d at 1028 (explaining that evidence promoting cultural stereotypes involuntary sterilization, or who has ‘‘death threats alone can constitute of countries or individuals, including been persecuted for failure or refusal to persecution’’ but ‘‘constitute stereotypes related to race, religion, undergo such a procedure or for other persecution in only a small category of nationality, and gender, to the extent resistance to a coercive population cases, and only when the threats are so those stereotypes are offered in support control program, would be deemed to menacing as to cause significant actual of an alien’s claim. 8 CFR 208.1(g), have been persecuted on account of suffering or harm’’ (quotation marks and 1208.1(g). political opinion, and a person who has citation omitted)). In comparison to the NPRM, the final a well-founded fear that he or she will rule clarifies the language in 8 CFR 2.6. Nexus be forced to undergo such a procedure 208.1(g) and 1208.1(g) to alleviate or be subject to persecution for such The Departments add paragraph (f) to apparent confusion and improve failure, refusal, or resistance would be both 8 CFR 208.1 and 1208.1 to provide consistency with the intent of the NPRM deemed to have a well-founded fear of clearer guidance on situations in which regarding the use of stereotypes as an persecution on account of political alleged acts of persecution would not be evidentiary basis for an asylum claim. In opinion. Id. on account of one of the five protected the final rule, bald statements that a grounds. This proposal would further country or its denizens have a particular 2.5. Persecution Definition the expeditious consideration of asylum cultural trait that causes citizens, Given the wide range of cases and statutory withholding claims by nationals, or residents of that country to interpreting ‘‘persecution’’ for the bringing clarity and uniformity to this engage in persecution is evidence purposes of the asylum laws, the issue. lacking in probative value and has no Departments are adding a new Specifically, the Departments are place in an adjudication. paragraph to 8 CFR 208.1 and 1208.1 to adopting the following eight non- define ‘‘persecution’’ and to better exhaustive circumstances, each of 2.8. Internal Relocation clarify what does and does not which is rooted in case law, that would The Departments are adopting constitute persecution given the extreme not generally support a favorable amendments to 8 CFR 208.13(b)(3), and severe nature of harm required. The adjudication of an application for 208.16(b)(3), 1208.13(b)(3), and Departments believe that these changes asylum or statutory withholding of 1208.16(b)(3) regarding the would better align the relevant removal due to the applicant’s inability reasonableness of internal relocation regulations with the high standard to demonstrate persecution on account because the Departments determined Congress intended for the term of a protected ground: (1) Interpersonal that the current regulations ‘‘persecution.’’ See Fatin v. INS, 12 F.3d animus or retribution; (2) interpersonal inadequately assess the relevant 1233, 1240 n.10, 1243 (3d Cir. 1993). animus in which the alleged persecutor considerations in determining whether Specifically, this rule provides that has not targeted, or manifested an internal relocation is possible, and if persecution requires ‘‘an intent to target animus against, other members of an possible, whether it is reasonable to a belief or characteristic, a severe level alleged particular social group in expect the asylum applicant to relocate. of harm, and the infliction of a severe addition to the member who has raised The Departments adopt a more level of harm by the government of a the claim at issue; (3) generalized streamlined presentation in the country or by persons or an organization disapproval of, disagreement with, or regulations of the most relevant factors that the government was unable or opposition to criminal, terrorist, gang, for adjudicators to consider in unwilling to control.’’ 8 CFR 208.1(e), guerilla, or other non-state organizations determining whether internal relocation 1208.1(e). The Departments further absent expressive behavior in is a reasonable option. This clarification clarify that persecution does not furtherance of a discrete cause against would assist adjudicators in making include, for example: (1) Every instance such organizations related to control of more efficient adjudications and would of harm that arises generally out of civil, a state or expressive behavior that is bring the regulatory burdens of proof in criminal, or military strife in a country; antithetical to the state or a legal unit of line with baseline assessments of (2) any and all treatment that the United the state; (4) resistance to recruitment or whether types of persecution generally States regards as unfair, offensive, coercion by guerilla, criminal, gang, occur nationwide. unjust, or even unlawful or terrorist, or other non-state Specifically, the Departments amend unconstitutional; (3) intermittent organizations; (5) the targeting of the the general guidelines regarding harassment, including brief detentions; applicant for criminal activity for determinations of the reasonableness of (4) threats with no actions taken to carry financial gain based on wealth or internal relocation to specify that out the threats; (5) non-severe economic affluence or perceptions of wealth or adjudicators should consider the totality harm or property damage; or (6) affluence; (6) criminal activity; (7) of the circumstances. 8 CFR government laws or policies that are perceived, past or present, gang 208.13(b)(3), 1208.13(b)(3). In addition, infrequently enforced, unless there is affiliation; and (8) gender. 8 CFR the Departments amend the list of credible evidence that those laws or 208.1(f)(1)–(8), 1208.1(f)(1)–(8). At the considerations for adjudicators policies have been or likely would be same time, the regulation would not including, inter alia, an instruction that applied to an applicant personally. See foreclose that, at least in rare cases, such adjudicators consider ‘‘the applicant’s id. circumstances could be the basis for demonstrated ability to relocate to the In comparison to the NPRM, this final finding nexus, given the fact-specific United States in order to apply for rule amends the language in 8 CFR nature of this determination. asylum.’’ Id. The Departments also 208.1(e) and 1208.1(e) regarding when adopt a presumption that for threats alone may constitute persecution 2.7. Stereotype Evidence applications in which the persecutor is to clarify that particularized threats of In order to make clear that pernicious not a government or government- severe harm of an immediate and cultural stereotypes have no place in the sponsored actor, internal relocation menacing nature made by an identified adjudication of applications for asylum would be reasonable unless the entity may constitute persecution. The and statutory withholding of removal, applicant demonstrates by a

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preponderance of the evidence that it 1208.13(d)(2)(i). Specifically, the and (9) whether the applicant was would not be. 8 CFR 208.13(b)(3)(iii), Departments list the following factors subject to a final order of removal, 1208.13(b)(3)(iii). This presumption for the adjudicator to consider: (1) deportation, or exclusion and did not would apply regardless of whether an Whether an alien has spent more than file a motion to reopen within one year applicant has established past 14 days in any one country that of the change in country conditions, 8 persecution. For ease of administering permitted application for refugee, CFR 208.13(d)(2)(i)(I), these provisions, the Departments also asylee, or similar protections prior to 1208.13(d)(2)(i)(I); see also INA provide examples of the types of entering or arriving in the United States, 240(c)(7)(C)(ii), 8 U.S.C. individuals or entities who are private 8 CFR 208.13(d)(2)(i)(A), 1229a(c)(7)(C)(ii); 8 CFR 1003.2(c)(3)(ii), actors. 8 CFR 208.13(b)(3)(iv), 1208.13(d)(2)(i)(A); 7 (2) whether the 1003.23(b)(4)(i). 1208.13(b)(3)(iv).6 alien transited through more than one This rule provides that if the country prior to arrival in the United adjudicator were to determine that any 2.9. Discretionary Factors States, 8 CFR 208.13(d)(2)(i)(B), of these nine circumstances applied Asylum is a discretionary form of 1208.13(d)(2)(i)(B); 8 (3) whether the during the course of the discretionary relief, and the Departments provide applicant would be subject to a review, the adjudicator may general guidelines on factors for mandatory asylum application denial nevertheless favorably exercise adjudicators to consider when under 8 CFR 208.13(c), 1208.13(c) but discretion in extraordinary determining whether or not an alien for the reversal, vacatur, expungement, circumstances, such as those involving merits the relief of asylum as a matter or modification of a conviction or national security or foreign policy of discretion. 8 CFR 208.13(d), sentence unless the alien was found not considerations, or if the alien 1208.13(d). Specifically, the guilty, 8 CFR 208.13(d)(2)(i)(C) demonstrates, by clear and convincing Departments provide three factors that 1208.13(d)(2)(i)(C); (4) whether the evidence, that the denial or referral of adjudicators must consider when applicant has accrued more than one asylum would result in an exceptional determining whether an applicant year of unlawful presence in the United and extremely unusual hardship to the merits the relief of asylum as a matter States prior to filing an application for alien. 8 CFR 208.13(d)(2)(ii), of discretion: (1) An alien’s unlawful asylum, 8 CFR 208.13(d)(2)(i)(D), 1208.13(d)(2)(ii). entry or unlawful attempted entry into 1208.13(d)(2)(i)(D); (5) whether the In comparison to the NPRM, this final the United States unless such entry or applicant, at the time he or she filed the rule adds the clarifying phrase ‘‘as attempted entry was made in immediate asylum application, had failed to timely defined in section 212(a)(9)(B)(ii) and flight from persecution or torture in a file or to timely file an extension request (iii) of the Act’’ to 8 CFR contiguous country; (2) subject to of any required Federal, state, or local 208.13(d)(2)(i)(D) and certain exceptions, the failure of an tax returns; failed to satisfy any 1208.13(d)(2)(i)(D) consistent with the alien to seek asylum or refugee outstanding Federal, state, or local tax intent of the NPRM. In addition, this protection in at least one country obligations; or has income that would final rule amends 8 CFR 208.13(d)(1)(i) through which the alien transited before generate tax liability but that has not and 1208.13(d)(1)(i) to reflect that an entering the United States; and (3) an been reported to the Internal Revenue unlawful or attempted unlawful entry alien’s use of fraudulent documents to Service, 8 CFR 208.13(d)(2)(i)(E), into the United States by an alien under enter the United States, unless the alien 1208.13(d)(2)(i)(E); (6) whether the the age of 18 will not be considered as arrived in the United States by air, sea, applicant has had two or more prior a significant adverse discretionary factor or land directly from the applicant’s asylum applications denied for any in considering a subsequent asylum home country without transiting reason, 8 CFR 208.13(d)(2)(i)(F), application filed by such an alien. through any other country. 8 CFR 1208.13(d)(2)(i)(F); (7) whether the Further, the final rule amends 8 CFR 208.13(d)(1), 1208.13(d)(1). The applicant has previously withdrawn an 208.13(d)(2)(ii) to reflect that, adjudicator must consider all three asylum application with prejudice or operationally, DHS may refer or deny an factors, if relevant, during every asylum been found to have abandoned an asylum application, depending on the adjudication. If one or more of these asylum application, 8 CFR circumstances of the applicant. See 8 factors were found to apply to the 208.13(d)(2)(i)(G), 1208.13(d)(2)(i)(G); CFR 208.14. applicant’s case, the adjudicator would (8) whether the applicant previously 2.10. Firm Resettlement consider such factors to be significantly failed to attend an interview with DHS adverse for purposes of the regarding his or her application, 8 CFR Due to the increased availability of discretionary determination, though the 208.13(d)(2)(i)(H), 1208.13(d)(2)(i)(H); 9 resettlement opportunities and the adjudicator should also consider any interest of those genuinely in fear of other relevant facts and circumstances 7 The Departments, however, provided exceptions persecution in attaining safety as soon to determine whether the applicant for aliens who demonstrate that (1) they applied for as possible, the Departments revise the and were denied protection in such country, (2) definition of firm resettlement that merits asylum as a matter of discretion. they are a trafficking victim as set out as 8 CFR In addition, the Departments provide 214.11, or (3) such country was at the time the alien applies to asylum adjudications at 8 10 nine additional adverse factors that, if transited not a party to the 1951 Convention CFR 208.15 and 1208.15. These applicable, would ordinarily result in relating to the Status of Refugees, the 1967 Protocol relating to the Status of Refugees, or the Convention and neither the alien nor the alien’s representative the denial of asylum as a matter of against Torture and Other Cruel, Inhuman or received notice of the interview. 8 CFR discretion. 8 CFR 208.13(d)(2)(i), Degrading Treatment or Punishment. 8 CFR 208.13(d)(2)(i)(H)(1)–(2), 1208.13(d)(2)(i)(H)(1)–(2). 208.13(d)(2)(i)(A)(1)–(3), 1208.13(d)(2)(i)(A)(1)–(3). 10 As the Departments noted in the proposed rule, 6 Because the issue of internal relocation arises in 8 The Departments, however, provided the same 85 FR at 36286 n.41, 43 countries have signed the the context of applications for both asylum and exceptions described above. See 8 CFR Refugee Convention since 1990. In particular, statutory withholding of removal, the Departments 208.13(d)(2)(i)(B)(1)–(3), 1208.13(d)(2)(i)(B)(1)–(3). resettlement opportunities in Mexico, one of the are amending the relevant regulations related to 9 The Departments included exceptions if the most common transit countries for aliens coming to applications for statutory withholding of removal alien shows by the preponderance of the evidence the United States, have increased significantly in for the same reasons discussed herein they are that either exceptional circumstances prevented the recent years. For example, the UNHCR has amending the regulations related to asylum alien from attending the interview or that the documented a notable increase in asylum and applications. See 8 CFR 208.16(b)(3) and interview notice was not mailed to the last address refugee claims filed in Mexico—even during the 1208.16(b)(3). provided by the alien or the alien’s representative ongoing COVID–19 pandemic—which strongly

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changes recognize the increased then relied on the asylum system to from the NPRM. This final rule also availability of resettlement reach that destination. changes the temporal language in 8 CFR opportunities and that an alien fleeing Specifically, the Departments identify 208.15(a)(3)(i) and (ii) and persecution would ordinarily be three circumstances under which an 1208.15(a)(3)(i) and (ii) for clarity and expected to seek refuge at the first alien would be considered firmly consistency with similar language in 8 available opportunity where there is no resettled: (1) The alien resided in a CFR 208.15(a)(2) and 1208.15(a)(2). The fear of persecution or torture. Further, country through which the alien changes clarify the relevant temporal the changes would ensure that the transited prior to arriving in or entering scope to read ‘‘after departing his asylum system is used by those in need the United States and (i) received or was country of nationality or last habitual of immediate protection rather than eligible for any permanent legal residence and prior to arrival in or entry those who chose the United States as immigration status in that country, (ii) into the United States’’ in lieu of the their destination for other reasons and resided in such a country with any non- language in the NPRM. Finally, as permanent but indefinitely renewable discussed above, the rule corrects a suggests that Mexico is an appropriate option for legal immigration status (including related outdated statutory cross- seeking refuge for those genuinely fleeing asylee, refugee, or similar status but reference in 8 CFR 1244.4(b). persecution. See, e.g., Shabia Mantoo, Despite excluding status such as of a tourist), or pandemic restrictions, people fleeing violence and 2.11. ‘‘Public Officials’’ persecution continue to seek asylum in Mexico, (iii) resided in such a country and could U.N. High Commissioner for Refugees (Apr. 28, have applied for and obtained any non- The Departments are revising 8 CFR 2020), https://www.unhcr.org/en-us/news/briefing/ permanent but indefinitely renewable 208.18(a)(1), (7) and 1208.18(a)(1), (7) to 2020/4/5ea7dc144/despite-pandemic-restrictions- legal immigration status in that country; provide further guidance for people-fleeing-violence-persecution-continue.html (‘‘While a number of countries throughout Latin (2) the alien physically resided determining what sorts of officials America and the rest of the world have closed their voluntarily, and without continuing to constitute ‘‘public officials,’’ including borders and restricted movement to contain the suffer persecution, in any one country whether an official such as a police spread of coronavirus, Mexico has continued to for one year or more after departing his officer is a public official for the register new asylum claims from people fleeing purposes of the CAT regulations if he or brutal violence and persecution, helping them find country of nationality or last habitual safety.’’). Asylum and refugee claims filed in residence and prior to arrival in or entry she acts in violation of official policy or Mexico increased 33 percent in the first three into the United States; or (3) (i) the alien his or her official status. Specifically, in months of 2020 compared to the same period in is a citizen of a country other than the comparison to the NPRM, this final rule 2019, averaging almost 6000 per month. Id. Asylum strikes the parenthetical phrase ‘‘(‘‘rogue claims filed in Mexico rose by more than 103 one where the alien alleges a fear of percent in 2018 compared to the previous year. persecution and the alien was present in official’’)’’ in 8 CFR 208.18(a)(1) and U.N. High Commissioner for Refugees, Fact Sheet that country prior to arriving in the 1208.18(a)(1). Relatedly, this final rule (Apr. 2019), https://reporting.unhcr.org/sites/ United States, or (ii) the alien was a replaces the remaining uses of the default/files/UNHCR%20Factsheet%20Mexico%20- phrase ‘‘rogue official’’ in 8 CFR %20April%202019.pdf. Overall, ‘‘[a]sylum requests citizen of a country other than the one have doubled in Mexico each year since 2015.’’ where the alien alleges a fear of 208.16(b)(3)(iv), 208.18(a)(1), and Congressional Research Serv., Mexico’s Immigration persecution, the alien was present in 1208.18(a)(1) with the definition, Control Efforts (Feb. 19, 2020), https://fas.org/sgp/ that country prior to arriving in the ‘‘public official who is not acting under crs/row/IF10215.pdf. Moreover, some private United States, and the alien renounced color of law.’’ As recently noted by the organizations acknowledge that asylum claims in Mexico have recently ‘‘skyrocket[ed],’’ that ‘‘Mexico that citizenship prior to or after arriving Attorney General in Matter of has adopted a broader refugee definition than the in the United States. 8 CFR O–F–A–S–, 28 I&N Dec. 35, 38 (A.G. U.S. and grants a higher percentage of asylum 208.15(a)(1)–(3), 1208.15(a)(1)–(3). 2020), ‘‘continued use of the ‘rogue applications,’’ and that ‘‘Mexico may offer better The Departments further provide that official’ language by the immigration options for certain refugees who cannot find international protection in the U.S.,’’ including for the issue of whether the firm courts going forward risks confusion, those ‘‘who are deciding where to seek asylum [i.e. resettlement bar applies arises ‘‘when not only because it suggests a different between Mexico and the United States].’’ Asylum the evidence of record indicates that the standard from the ‘under color of law’ Access, Mexican Asylum System for U.S. firm resettlement bar may apply,’’ and standard, but also because ‘rogue Immigration Lawyers FAQ (Nov. 2019), https:// official’ has been interpreted to have asylumaccess.org/wp-content/uploads/2019/11/ specifically allows both DHS and the Mexican-Asylum-FAQ-for-US-Immigration- immigration judge to first raise the issue multiple meanings.’’ Lawyers.pdf. Moreover, the Mexican Constitution based on the record evidence. 8 CFR In addition, the Departments clarify was amended in 2011 to include the specific right 208.15(b), 1208.15(b). Finally, the (1) that pain or suffering inflicted by, or to asylum and further amended in 2016 to expand Departments specify that the firm at the instigation of or with the consent that right. See Mex. Const. Art. 11 (‘‘Every person has the right to seek and receive asylum. resettlement of an alien’s parent(s) or acquiescence of, a public official is Recognition of refugee status and the granting of would be imputed to the alien if the not torture unless it is done while the political asylum will be carried out in accordance resettlement was prior to the alien official is acting in his or her official with international treaties. The law will regulate turning 18 and the alien resided with capacity (i.e., under ‘‘color of law’’) and their origins and exceptions.’’). In fact, the grounds for seeking and obtaining refugee status under the parents at the time of the firm (2) that pain or suffering inflicted by, or Mexican law are broader than the grounds under resettlement unless the alien could not at the instigation of or with the consent U.S. law. As in the United States, individuals in have derived any legal immigration or acquiescence of, a public official not Mexico may seek refugee status as a result of status or any nonpermanent legal acting under color of law does not persecution in their home countries on the basis of race, religion, nationality, gender, membership in a immigration status that was potentially constitute a ‘‘pain or suffering inflicted social group, or political opinion. Compare 2011 indefinitely renewable from the parent. by or at the instigation of or with the Law for Refugees, Complementary Protection, and Id. consent or acquiescence of a public Political Asylum (‘‘LRCPPA’’), Art. 13(I), with INA In comparison to the NPRM, this final official or other person acting in an 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i). However, individuals in Mexico may also seek refugee status rule analyzes the components of 8 CFR official capacity,’’ even if such actions based on ‘‘generalized violence’’ and ‘‘massive 208.15(a)(1) and 1208.15(a)(1), breaks it cause pain and suffering that could rise violation of human rights.’’ See 2011 LRCPPA, Art. into three subparagraphs, and changes to the severity of torture. See 8 CFR 13(II). In short, resettlement opportunities are the syntax, all for easier readability and 208.18(a)(1), 1208.18(a)(1). This unquestionably greater now than when the amendment clarifies that the regulatory definition of ‘‘firm resettlement’’ was to avoid confusion. The changes in the first implemented, and those changes warrant final rule are stylistic and do not reflect requirement that the individual be revisions to that definition accordingly. an intent to make a substantive change acting in an official capacity applies to

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both a ‘‘public official,’’ such as a police that nothing in 8 CFR 208.6 or 1208.6 Many if not most comments opposing officer, and an ‘‘other person,’’ such as should be construed to prohibit the the NPRM either misstate its contents, an individual deputized to act on the disclosure of information in or relating provide no evidence (other than isolated government’s behalf. Id. to an application for asylum, statutory or distinguishable anecdotes) to support The Departments also clarify the withholding of removal, and protection broad speculative effects, are contrary to definition of ‘‘acquiescence of a public under the CAT regulations among facts or law, or lack an understanding of official’’ so that, as several courts of specified government employees or relevant immigration law and appeals and the BIA have recognized, where a government employee or procedures. As the vast majority of ‘‘awareness’’—as used in the CAT contractor has a ‘‘good faith and comments in opposition fall within one ‘‘acquiescence’’ definition—requires a reasonable’’ belief that the disclosure is of these categories, the Departments finding of either actual knowledge or necessary to prevent the commission of offer the following general responses to willful blindness. 8 CFR 208.18(a)(7), a crime, the furtherance of an ongoing them, supplemented by more detailed, 1208.18(a)(7). The Departments further crime, or to ameliorate the effects of a comment-specific responses in Section clarify in this rule that, for purposes of crime. 8 CFR 208.6(e), 1208.6(e). II.C of this preamble. the CAT regulations, ‘‘willful The Departments are making Many comments oppose the NPRM blindness’’ means that ‘‘the public conforming edits to 8 CFR 208.6(a) and because they misstate, in hyperbolic official acting in an official capacity or (b) and 8 CFR 1208.6(b) to make clear terms, that it ends or destroys the other person acting in an official that the disclosure provisions of 8 CFR asylum system or eliminates the capacity was aware of a high probability 208.6 and 1208.6 apply to applications availability of humanitarian protection of activity constituting torture and for withholding of removal under the in the United States. The NPRM does deliberately avoided learning the truth; INA and for protection under the nothing of the kind. The availability of it is not enough that such public official regulations implementing the CAT, and asylum is established by statute, INA acting in an official capacity or other not solely to asylum applications. That 208, 8 U.S.C. 1158, and an NPRM person acting in an official capacity was point is already clear in 8 CFR 208.6(d) cannot alter a statute.11 Rather, the mistaken, recklessly disregarded the and 1208.6(d), and the Departments see NPRM, consistent with the statutory truth, or negligently failed to inquire.’’ no reason not to conform the other authority of the Secretary and the Id. paragraphs in that section for Attorney General, adds much-needed Additionally, the Departments clarify consistency. guidance on the many critical, yet that acquiescence is not established by undefined, statutory terms related to 2.13. Severability prior awareness of the activity alone, asylum applications. Such guidance not but requires an omission of an act that Given the numerous and varied only improves the efficiency of the the official had a duty to do and was changes proposed in the NPRM, the system as a whole, but allows able to do. 8 CFR 208.18(a)(7), Departments are adding severability adjudicators to focus resources more 1208.18(a)(7). provisions in 8 CFR parts 208, 235, effectively on potentially meritorious 2.12. Information Disclosure 1003, 1208, 1212, and 1235. See 8 CFR claims rather than on meritless ones. In The Departments are making changes 208.25, 235.6(c), 1003.42(i), 1208.25, short, the NPRM enhances rather than to 8 CFR 208.6 and 8 CFR 1208.6 to 1212.13, 1235.6(c). Because the degrades the asylum system. clarify that information may be Departments believe that the provisions Many comments misstate that the disclosed in certain circumstances that of each part would function sensibly NPRM creates a blanket rule denying directly relate to the integrity of independent of other provisions, the asylum based on its addition of certain immigration proceedings, including Departments make clear that the definitions—e.g., particular social situations in which there is suspected provisions are severable so that, if group, political opinion, nexus, and fraud or improper duplication of necessary, the regulations can continue persecution. Although the rule provides applications or claims. Specifically, the to function without a stricken provision. definitions for these terms and examples of situations that generally will not meet Departments provide that to the extent 3. Other not already specifically permitted, and those definitions, the rule also makes without the necessity of seeking the In comparison to the NPRM, this final clear that the examples are exercise of the Attorney General’s or rule strikes the regulatory text changes generalizations, and it does not Secretary’s discretion under sections proposed at 103.5 because those categorically rule out types of claims 1208.6(a) and 208.6(a), respectively, the changes were inadvertently included in based on those definitions. In short, the Government may disclose all relevant the NPRM’s proposed regulatory text. rule does not contain the blanket and applicable information in or II. Public Comments on the Proposed prohibitions that some commenters pertaining to the application for asylum, Rule ascribe to it. statutory withholding of removal, and Many comments assert that the NPRM protection under the CAT regulations as A. Summary of Public Comments targets certain nationalities, groups, or part of a Federal or state investigation, The comment period for the NPRM types of claims and is motivated by a proceeding, or prosecution; as a defense closed on July 15, 2020, with more than nefarious or conspiratorial animus, to any legal action relating to the alien’s 87,000 comments received. particularly an alleged racial animus. immigration or custody status; during Organizations, including non- The Departments categorically deny an an adjudication of the application itself government organizations, legal improper motive in promulgating the or an adjudication of any other advocacy groups, non-profit NPRM. Rather, the animating principles application or proceeding arising under organizations, religious organizations, of the NPRM were to provide clearer the immigration laws; pursuant to any unions, congressional committees, and guidance to adjudicators regarding a state or Federal mandatory reporting groups of members of Congress, number of thorny issues that have requirement; and to deter, prevent, or submitted 311 comments, and 11 For similar reasons, the NPRM cannot—and ameliorate the effects of child abuse. 8 individual commenters submitted the does not—alter the general availability of CFR 208.6(d)(1)(i)–(iv), 1208.6(d)(1)(i)– rest. Most individual comments withholding of removal under the Act or protection (vi). Finally, the Departments provide opposed the NPRM. under the CAT.

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created confusion and inconsistency; to if not most, commenters opposing the prior Board and circuit court decisions improve the efficiency and integrity of rule believe that most asylum do not restrict the Departments to the the overall system; to correct procedures applications are meritorious and, thus, extent asserted by most commenters. that were not working well, including would prefer that more applications for Further, as also discussed, infra, and the identification of meritless or asylum be granted; that border recognized by commenters, much of the fraudulent claims; and to reset the restrictions should be loosened; and that relevant circuit court case law points in overall asylum adjudicatory framework the Departments, as a matter of different directions and offers multiple in light of numerous—and often forbearance or discretion, should views on the issues in the NPRM. There contradictory or confusing—decisions decline to enforce the law when doing is nothing inappropriate about the from the Board and circuit courts. The so would be beneficial to aliens. For all Departments seeking to improve the Departments’ positions are rooted in of the reasons discussed in the NPRM, consistency, clarity, and efficiency of law, as explained in the NPRM. In short, and reiterated herein, the Departments asylum adjudications, and to bring some the Departments have not targeted any decline to adopt those positions. The Departments further understand reasonable order to the dissonant views particular groups or nationalities in the on several important-but-contested NPRM or in the provisions of this final that many if not most commenters have statutory issues. See, e.g., Fed. Express rule.12 Rather, the Departments are a policy preference for the status quo Corp. v. Holowecki, 552 U.S. 389, 403 appropriately using rulemaking to over the proposed rule changes. The (2008) (‘‘We find no reason in this case provide guidance in order to streamline Departments have been forthright in determinations consistent with their acknowledging the changes, but have to depart from our usual rule: Where statutory authorities. See Heckler v. also explained the reasoning behind ambiguities in statutory analysis and Campbell, 461 U.S. 458, 467 (1983) those changes, including the lack of application are presented, the agency (‘‘The Court has recognized that even clarity in key statutory language and the may choose among reasonable where an agency’s enabling statute resulting cacophony of case law that alternatives.’’). expressly requires it to hold a hearing, leads to confusion and inconsistency in Overall, and as discussed in more the agency may rely on its rulemaking adjudication. The Departments detail below, the Departments generally authority to determine issues that do not acknowledge changes in positions, decline to adopt the recommendations require case-by-case consideration.... where applicable have provided good of comments that misinterpret the A contrary holding would require the reasons for the changes; they believe the NPRM, offer dire and speculative agency continually to relitigate issues changes better implement the law; and predictions that lack support, are they have provided a ‘‘reasoned that may be established fairly and contrary to facts or law, or otherwise analysis’’ for the changes, which is efficiently in a single rulemaking lack an understanding of relevant law contained in the NPRM and reiterated proceeding.’’) (citation omitted); see and procedures. also Lopez v. Davis, 531 U.S. 230, 243– herein in response to the comments 44 (2001) (‘‘[E]ven if a statutory scheme received. In short, the rule is not B. Comments Expressing Support for the requires individualized determinations, ‘‘arbitrary and capricious’’ under Proposed Rule which this scheme does not, the existing law. See FCC v. Fox Television decisionmaker has the authority to rely Stations, Inc., 556 U.S. 502, 515 (2009). Comment: At least two organizations on rulemaking to resolve certain issues Finally, many commenters assert that and other individual commenters various provisions of the NPRM are of general applicability unless Congress expressed general support for the rule. inconsistent with either Board or clearly expresses an intent to withhold Some commenters noted the need for circuit-court precedents. The that authority.... The approach regulatory reform given the current Departments may engage in rulemaking pressed by Lopez—case-by-case delays in asylum adjudication and said that overrules prior Board precedent, decision-making in thousands of cases the rule is a move in the right direction. and as noted in the NPRM, 85 FR at each year—could invite favoritism, Other commenters indicated a range of 36265 n.1, to the extent that some disunity, and inconsistency.’’) (citations reasons for their support, including a circuits have disagreed with the and internal quotations omitted). desire to limit overall levels of Departments’ interpretations of Many, if not most, commenters immigration, a belief that many ambiguous statutory terms in the past, asserted that the rule was ‘‘arbitrary and individuals who claim asylum are the Departments’ new rule would capricious,’’ though nearly all of those instead simply seeking better economic warrant reevaluation in appropriate assertions were ultimately rooted in the opportunities, or a belief that asylum cases under well-established principles fact that the rule did not adopt the seekers or immigration representatives of administrative law. See Nat’l Cable & commenters’ policy preferences rather abuse the asylum system. Telecomms. Ass’n v. Brand X internet than specific legal deficiencies. The Servs., 545 U.S. 967, 982 (2005) Commenters stated that the rule will Departments have considered all (hereinafter ‘‘Brand X’’); Chevron, aid both adjudicators and applicants. comments and looked at alternatives. U.S.A., Inc. v. Natural Resources For example, one individual and The Departments understand that many, Defense Council, Inc., 467 U.S. 837, organization explained that: 842–844 (1984). Moreover, ‘‘ ‘judicial 12 Asylum claims are unevenly distributed among [T]hese proposals will give aliens applying the world’s countries. See EOIR, Asylum Decision deference to the Executive Branch is for protection ample notice and motivation to Rates by Nationality (July 14, 2020), https:// especially appropriate in the file complete and adequately reasoned www.justice.gov/eoir/page/file/1107366/download. immigration context,’ where decisions asylum applications in advance of the merits Thus, to the extent that the NPRM affects certain about a complex statutory scheme often groups of aliens more than others, those effects are hearing, which will protect the rights of the a by-product of the inherent distribution of claims, implicate foreign relations.’’ Scialabba alien, assist the IJ in completing the case in rather than any alleged targeting by the v. Cuellar de Osorio, 573 U.S. 41, 56– a timely manner, and aid the ICE attorney in Departments. See also DHS v. Regents of Univ. of 57 (2014) (plurality op.) (quoting INS v. representing the interests of the government. Cal., 140 S.Ct. 1891, 1915–16 (2020) (impact of a Aguirre-Aguirre, 526 U.S. 415, 425 policy on a population that is intrinsically skewed Response: The Departments note and demographically does not established a plausible (1999)). claim of racial animus, invidious discrimination, or Consequently, for the reasons appreciate these commenters’ support an equal protection violation). explained in the NPRM and herein, for the rule.

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C. Comments Expressing Opposition to limited judicial resources. The rule’s certain aliens’ credible fear claims); see the Proposed Rule additional guidance regarding certain also 8 CFR 208.30 and 1208.30 (setting definitions (such as particular social out the credible fear procedures, which 1. General Opposition groups, political opinion, persecution, involve actions before both DHS/USCIS 1.1. General Immigration Policy and acquiescence, among others), as and DOJ/EOIR). Because officials in Concerns well as enumerated negative both DHS and DOJ make determinations Comment: Many commenters discretionary factors, will provide involving the same provisions of the expressed a general opposition to the clarity to adjudicators and the parties INA, including those related to asylum, rule, and noted that, although they may and make the adjudicatory process more it is appropriate for the Departments to not be commenting on every aspect of efficient and consistent. coordinate on regulations like the the rule, a failure to comment on a These changes do not ‘‘destroy’’ the proposed rule that affect both agencies’ specific provision does not mean that U.S. asylum system, prevent aliens from equities in order to ensure consistent the commenter agrees with a provision. applying for asylum, or prevent the application of the immigration laws. granting of meritorious claims, contrary Commenters stated that the rule would to commenters’ claims. The asylum 1.3. Impact on Particular Populations ‘‘destroy’’ the U.S. asylum system and system remains enshrined in both Comment: Commenters asserted that would result in the denial of virtually statute and regulation. Rather, the the proposed regulation is in conflict all asylum applications. Instead, changes are intended to harmonize the with American values and that it would commenters recommended that the process between the relevant deny due process to specific current regulations remain in place. Departments, provide more clarity to populations—including women, LGBTQ Moreover, commenters stated that the adjudicators, and allow the immigration asylum seekers, and children. rule conflicts with America’s values and system to more efficiently focus its Commenters similarly expressed deeply rooted policy of welcoming resources on adjudicating claims that concerns that the proposed regulation immigrants and refugees. Commenters are more likely to be meritorious. In would lead to the denial of virtually all asserted that the rule would damage the doing so, the rule will help the applications from those populations, United States’ standing in the world. Departments ensure that the asylum which, commenters asserted, would Commenters explained that the United system is available to those who truly place them in harm’s way. States should be promoting values of have ‘‘nowhere else to turn.’’ Matter of Commenters asserted that the freedom and human rights, and that B–R–, 26 I&N Dec. 119, 122 (BIA 2013) elimination of gender-based claims immigration benefits the United States (internal citations omitted). would be particularly detrimental to both economically and culturally. women and LGBTQ asylum-seekers. Commenters asserted that the rule 1.2. Issuance of Joint Regulations Commenters asserted that the proposed provides inadequate legal reasoning and Comment: At least one commenter rule would ‘‘all but ban’’ domestic- is inappropriately motivated by the expressed a belief that it is violence-based and gang-based claims. administration’s animus against inappropriate for DHS (characterized by Commenters noted that courts have immigrants. the commenter as the immigration found that such claims can be Response: The rule is not immoral, prosecutors) and DOJ (characterized by meritorious. motivated by racial animus, or the commenter as the immigration Response: The Departments disagree promulgated with discriminatory intent. adjudicators) to issue rules jointly that the rule is contrary to American Instead, the rule is intended to help the because the agencies serve different values. The United States continues to Departments better allocate limited roles and missions within the fulfill its international commitments in resources in order to more expeditiously immigration system. The commenter accordance with the Refugee Act of adjudicate meritorious asylum, statutory stated that the issuance of joint 1980,13 evidenced by United Nations withholding of removal, and CAT regulations calls into question the High Commissioner for Refugees protection claims. For example, placing agencies’ independence from each (‘‘UNHCR’’) data on refugee resettlement aliens who receive a positive credible other. confirming that the United States was fear screening into asylum-and- Response: The HSA divided, between the top country for refugee resettlement withholding-only proceedings will DHS and DOJ, some immigration in 2019, as well as 2017 and 2018. See lessen the strain on the immigration adjudicatory and enforcement functions UNHCR, Resettlement at a Glance courts by limiting the focus of such that had previously been housed within (January–December 2019), https:// proceedings and thereby streamlining DOJ. See INA 103, 8 U.S.C. 1103 (setting www.unhcr.org/protection/resettlement/ the process. Similarly, applying certain out the powers of the Secretary and 5e31448a4/resettlement-fact-sheet- asylum bars and raising the standards Under Secretary of DHS and of the 2019.html. Further, since the Refugee for statutory withholding of removal Attorney General); see also HSA, sec. Act was passed, the United States has and CAT protection will help screen out 101, 116 Stat. at 2142 (‘‘There is admitted more than three million non-meritorious claims during the established a Department of Homeland refugees and granted asylum to more credible fear screening, which will Security, as an executive department of than 721,000 individuals. See UNHCR, allow the Departments to devote their the United States....’’). However, Refugee Admissions, https:// limited resources to adjudicating claims the Departments disagree that issuing www.state.gov/refugee-admissions/. In that are more likely to be meritorious. joint regulations violates the agencies’ Fiscal Year (‘‘FY’’) 2019 alone, the Likewise, allowing immigration judges independence in the manner suggested Departments approved nearly 39,000 to pretermit asylum applications that by commenters. Instead, the DHS and asylum applications. EOIR, Asylum are not prima facie eligible for relief will DOJ regulations are inextricably Decision Rates, (Oct. 13, 2020), https:// allow judges to use limited hearing time intertwined, and the Departments’ roles www.justice.gov/eoir/page/file/1248491/ to focus on cases with a higher chance are often complementary. See, e.g., INA download (listing 18,836 grants); USCIS, of being meritorious. The rule’s 235(b)(1)(B)(iii)(III), 8 U.S.C. Number of Service-wide Forms Fiscal expanded definition of frivolousness 1225(b)(1)(B)(iii)(III) (providing for will also help to deter specious claims immigration judge review of asylum 13 See infra Section II.C.6.8 for further discussion that would otherwise require the use of officers’ determinations regarding on this point.

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Year To- Date, https://www.uscis.gov/ the class or status of the person claiming legislative history. One organization sites/default/files/document/data/ asylum; instead, asylum cases turn on expressed its disagreement with the Quarterly_All_Forms_FY19Q4.pdf the nature of the individual’s claim. rule’s citation to Matter of M–S–, 27 I&N (listing 19,945 grants). This rule does Moreover, in accordance with its non- Dec. 509 (A.G. 2019), 85 FR at 36267 not affect the United States’ long- refoulement obligations, the United n.9, contending that if Congress standing commitment to assisting States continues to offer statutory intended to ‘‘strip asylum-seekers of refugees and asylees from around the withholding of removal and CAT their due process rights, it would have world. protection. Although this rule amends expressly said so.’’ Another organization The rule does not deny due process to those forms of relief, the amended relief stated that the rule is ‘‘[a]rbitrary and any alien. As an initial matter, courts continues to align with the provisions of capricious,’’ noting that the proposed have found that aliens have no the 1951 Convention relating to the policy is a ‘‘dramatic change’’ from cognizable due process interest in the Status of Refugees, the 1967 Protocol decades of practice but claiming the discretionary benefit of asylum. See relating to the Status of Refugees, and Departments offer ‘‘no discussion’’ as to Yuen Jin v. Mukasey, 538 F.3d 143, the CAT, such that eligible aliens will why it is necessary. 156–57 (2d Cir. 2008); Ticoalu v. not be returned to places where they One organization emphasized that Gonzales, 472 F.3d 8, 11 (1st Cir. 2006) may be subjected to persecution or ‘‘asylum-only proceedings,’’ are limited (citing DaCosta v. Gonzales, 449 F.3d torture. in scope and both parties are prohibited 45, 49–50 (1st Cir. 2006)). Still, the The portion of the rule that draws the from raising ‘‘any other issues.’’ The statute and regulations provide for objection above does not categorically organization alleged that the NPRM did certain basic procedural protections— ban or eliminate any types of claims, not include any data regarding the such as notice and an opportunity to be including those posited by the number of asylum seekers who are heard—and the rule does not alter those commenters. In relevant part, the rule placed in section 240 proceedings after basic protections. See LaChance v. codifies a long-standing test for passing a credible fear interview, or the Erickson, 522 U.S. 262, 266 (1998) determining the cognizability of number of respondents in these (‘‘The core of due process is the right to particular social groups and sets forth a proceedings who are granted some form notice and a meaningful opportunity to list of common fact patterns involving of relief besides asylum or withholding be heard.’’); see also Lapaix v. U.S. Att’y particular-social-group claims that of removal. Because of this, the Gen., 605 F.3d 1138, 1143 (11th Cir. generally will not meet those long- organization claimed that the rule ‘‘does 2010) (‘‘Due process requires that aliens standing requirements. See 85 FR at not provide adequate justification’’ for be given notice and an opportunity to be 36278–79; see also 8 CFR 208.1(f)(1), the proposed change. heard in their removal proceedings.’’). 1208.1(f)(1). At the same time, the Another organization claimed the rule Aliens in removal proceedings will Departments recognized in the NPRM ‘‘pre-supposes’’ that asylum seekers continue to be provided a notice of the that ‘‘in rare circumstances,’’ items from would not be eligible for other forms of charges of removability, INA 239(a)(1), 8 the list of common fact patterns ‘‘could immigration relief. The organization U.S.C. 1229(a)(1), have an opportunity be the basis for finding a particular noted that many individuals who are apprehended at the border as asylum to present the case to an immigration social group, given the fact- and society- applicants may also be victims of judge, INA 240(a)(1), 8 U.S.C. specific nature of this determination.’’ human trafficking or serious crimes 1229a(a)(1), and have an opportunity to 85 FR at 36279. Thus, the NPRM committed within the United States. appeal, 8 CFR 1003.38. Aliens in explicitly stated that the rule did not The organization stated that Congress asylum-and-withholding-only ‘‘foreclose’’ any claims; the inquiry has recognized the unique assistance proceedings will continue to be remains case-by-case. provided notice of referral for a hearing that victims of human trafficking and before an immigration judge, 8 CFR 2. Expedited Removal and Screenings in victims of crimes potentially eligible for 1003.13 (defining ‘‘charging document’’ the Credible Fear Process U visas are able to provide to Federal used by DHS to initiate non-removal, 2.1. Asylum-and-Withholding-Only law enforcement, claiming this is the reason the S visa, T visa, and U visa immigration proceedings before an Proceedings for Aliens With Credible programs were created. The immigration judge), to have an Fear opportunity to be heard by an organization asserted that if the immigration judge, 8 CFR 1208.2(c), and Comment: One organization stated Departments ‘‘cut off’’ access to a have an opportunity to appeal, 8 CFR that the rule would deprive individuals complete section 240 proceeding, they 1003.1(b)(9). Nothing in the proposed who have established a credible fear will essentially ‘‘tie the hands’’ of law regulations alters those well-established from being placed into full removal enforcement. Another organization procedural requirements. proceedings under section 240 of the expressed concern that the rule would The generalized concern that the rule Act, 8 U.S.C. 1229a. Another prevent survivors of gender-based and will categorically deny asylum to organization claimed that the rule, LGBTQ-related violence in expedited classes of persons, such as women or ‘‘effectively destroys due process rights removal proceedings from applying for LGBTQ asylum-seekers—and thus put of asylum seekers’’ as it would prevent protection under the Violence Against those persons in harm’s way—is these individuals from contesting Women Act (‘‘VAWA’’) or the William unsupported, speculative, and overlooks removability where there are ‘‘egregious Wilberforce Trafficking Victims the case-by-case nature of the asylum due process violations,’’ defects in the Protection Reauthorization Act of 2008 process. The rule provides more clarity Notice to Appear, or competency (‘‘TVPRA’’). to adjudicators regarding a number of concerns. One organization contended that there difficult issues—e.g. persecution, One organization stated that the rule is little efficiency in abandoning particular social group, and nexus—in is contrary to congressional intent removability determinations in removal order to improve the consistency and because there is no statutory prohibition proceedings, arguing that ‘‘[i]n the quality of adjudications, but it against placing arriving asylum seekers overwhelming majority of cases, the establishes no categorical bars to into complete section 240 proceedings, pleadings required to establish domestic-violence-based or gang-based and at least one organization claimed removability take 30 seconds.’’ The claims, and no categorical bars based on that this intent is supported by the organization argued that Congress

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would not have chosen to sacrifice that this is not the ultimate Congress did not intend to deter competency and accuracy to save such determination for applicants who individuals who have ‘‘cleared the a short amount of time. Another establish credible fear, as DHS cannot hurdle of establishing a credible fear of organization criticized the rule’s continue to seek expedited removal at persecution.’’ Another organization statement that ‘‘referring aliens who this point. argued that the credible fear screening pass a credible fear for section 240 One organization stated that, when ‘‘creates an exit’’ from expedited proceedings runs counter to [the] Congress enacted the Illegal removal proceedings, emphasizing that legislative aims’’ of a quick expedited Immigration Reform and Immigrant those who establish credible fear are removal process, 85 FR at 36267, Responsibility Act of 1996 (‘‘IIRIRA’’), effectively ‘‘screened out’’ of expedited arguing that this justification is ‘‘faulty Public Law 104–208, Div. C, 110 Stat. removal proceedings (INA at best and baseless at worst.’’ One 3009, 3009–546, it created two specific 235(b)(1)(B)(ii)–(iii), 8 U.S.C. organization claimed that administrative removal procedures: Expedited removal 1225(b)(1)(B)(ii)–(iii)). One organization efficiency is aided by the availability of proceedings in section 235 of the Act, 8 expressed particular concern that ‘‘the a broad range of reliefs because U.S.C. 1225, and regular removal president has announced an intention to respondents placed in full removal proceedings in section 240 of the Act, 8 expand expedited removal to the proceedings often qualify for a simpler U.S.C. 1229a. The organization asserted interior of the United States,’’ noting form of relief, allowing courts to omit that section 240 proceedings are the that noncitizens who have been in the many of these complexities. ‘‘exclusive’’ admission and removal United States for up to two years are One organization noted that, in the proceedings ‘‘unless otherwise more likely to have other forms of relief expedited removal context, decisions specified’’ in the Act, 8 U.S.C. to pursue. are made by Customs and Border 1229a(a)(3). The organization also noted Response: The Departments disagree Protection (‘‘CBP’’) officers. The Congress’s specification that certain with commenters that the INA requires organization expressed concern about classes of citizens should not be placed aliens who are found to have a credible the risk of error in permitting an in full removal proceedings, noting the fear to be placed in full removal enforcement officer to act as both exclusion of persons convicted of proceedings pursuant to section 240 of ‘‘prosecutor and judge,’’ particularly particular crimes (INA 240(a)(3), 8 the Act, 8 U.S.C. 1229(a). The expedited when the officer’s decisions are not U.S.C. 1229a(a)(3)); INA 238(a)(1), 8 removal statute states only that ‘‘the subject to appellate review. The U.S.C. 1228(a)(1)) as well as the alien shall be detained for further organization also noted the rule’s prohibition of visa waiver program consideration of the application for reference to the ‘‘prosecutorial participants from contesting asylum,’’ but is silent on the type of discretion’’ of DHS in removal inadmissibility or removal except on the proceeding. INA 235(b)(1)(B)(ii) 8 U.S.C. proceedings and argued that this basis of asylum (INA 217(b), 8 U.S.C. 1225(b)(1)(B)(ii). This silence is notable discretion does not include the 1187(b)). The organization also noted as Congress expressly required or authority to create new types of that, within the expedited removal prohibited the use of full removal proceedings. Instead, the organization statute itself, Congress specifically proceedings elsewhere in the same contended that this discretion is excluded stowaways from section 240 expedited removal provisions. Compare confined to decisions surrounding the proceedings (INA 235(a)(1), 8 U.S.C. INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A) determination of whether to pursue 1225(a)(2)); in contrast, Congress (explicitly requiring certain aliens not charges. Another organization considered asylum seekers to be eligible for expedited removal to be emphasized that, while DHS has the applicants for admission under section placed in section 240 removal discretion to place an individual 235(a)(1) of the Act, 8 U.S.C. 1225(a)(1), proceedings), with INA 235(a)(2), 8 without documentation directly into and did not similarly exclude them (see U.S.C. 1225(a)(2) (explicitly prohibiting section 240 proceedings instead of INA 235(b), 8 U.S.C. 1225(b)). The stowaways from being placed in section expedited removal, this discretion is organization concluded that the plain 240 removal proceedings).14 As ‘‘initial,’’ and does not continue once text of the INA ‘‘precludes the agencies’ explained in the NPRM, the former the individual has established fear (as claim that they are free to make up new Immigration and Naturalization Service the individual must then be referred for procedures to apply to arriving asylees’’ (‘‘INS’’) interpreted this ambiguous full consideration of his or her claims). (citing Henson v. Santander Consumer section to place aliens with positive The organization disagreed with the USA, Inc., 137 S. Ct. 1718, 1723 (2017)). credible fear determinations into section rule’s assertion, 85 FR at 36266, that the The organization claimed that IIRIRA’s 240 removal proceedings. See current practice of placing applicants legislative history ‘‘unanimously Inspection and Expedited Removal of with credible fear into section 240 confirms’’ this conclusion, citing the Aliens; Detention and Removal of proceedings ‘‘effectively negat[es]’’ conference report by the Joint Aliens; Conduct of Removal DHS’s prosecutorial discretion. Committee from the House and the Proceedings; Asylum Procedures, 62 FR The organization further disagreed Senate in support of its assertion. See 10312 (Mar. 6, 1997). However, it is the with the Departments’ claim that ‘‘[b]y H.R. Rep. No. 104–828 at 209 (1996). Departments’ view that the better deciding that the [individual] was The organization also emphasized that, interpretation is to place aliens with amenable to expedited removal, DHS after twenty-three years of placing positive credible fear determinations already determined removability,’’ 85 applicants with credible fear into into limited asylum-and-withholding- FR at 36266, contending this section 240 proceedings, ‘‘Congress has only proceedings. This is consistent ‘‘overreaches.’’ The organization noted never suggested that the agencies got with the statutory language that the that, pursuant to section 235(b)(1) of the that wrong.’’ Act, 8 U.S.C. 1225(b)(1), a DHS Another organization emphasized that 14 The Departments note that section 240(a)(3) of inspector does have initial discretion to Congress only authorized expedited the Act (8 U.S.C. 1229a(a)(3)), which makes removal place an applicant into expedited removal for a specific category of proceedings the ‘‘exclusive’’ procedure for removal proceedings if it is determined noncitizens and that, at the time this inadmissibility and removability determinations, is inapplicable here because DHS has already that the person ‘‘is inadmissible under determination was made, the class was determined inadmissibility as part of the expedited section 1182(a)(6)(C) or 1182(a)(7);’’ confined to individuals arriving at ports removal process. See INA 235(b)(1)(A)(i) (8 U.S.C. however, the organization emphasized of entry. The organization argued that 1225(b)(1)(A)(i)).

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alien is entitled to a further proceeding has conducted asylum-and-withholding- Further, immigration judges often related to the alien’s ‘‘application for only proceedings for multiple categories adjudicate multiple forms of relief in a asylum,’’ and not a full proceeding to of aliens for years already, 8 CFR single removal proceeding—in addition also determine whether the alien should 1208.2(c)(1) and (2), with no alleged to asylum, withholding of removal, or be admitted or is otherwise entitled to systemic concerns documented about CAT claims—and those additional various immigration benefits. INA the due process provided in those issues generally only serve to increase 235(b)(1)(B)(ii), 8 U.S.C. proceedings. the length of the proceedings. Although 1225(b)(1)(B)(ii). The Departments agree with the there may be rare scenarios in which This interpretation also best aligns commenter who noted that removability aliens subject to expedited removal are with the overall purpose of the determinations are typically brief for eligible for a form of relief other than expedited removal statute to provide a those aliens subject to expedited asylum, the Departments believe that streamlined and efficient removal removal who subsequently establish a interpreting the statute to place aliens process for certain aliens designated by credible fear and are placed in removal with positive credible-fear Congress.15 See generally INA 235, 8 proceedings. The Departments believe determinations into more limited U.S.C. 1225; cf. DHS v. Thuraissigiam, that comment further supports the asylum-and-withholding-only 140 S.Ct. 1959, 1966 (2020) (‘‘As a placement of such aliens in asylum-and- proceedings properly balances the need practical matter . . . the great majority withholding-only proceedings since ‘‘in to prevent aliens from being removed to of asylum seekers who fall within the the overwhelming majority of cases,’’ countries where they may face category subject to expedited removal there is no need for a new removability persecution or torture with ensuring the do not receive expedited removal and determination that would otherwise be efficiency of the overall adjudicatory are instead afforded the same called for in removal proceedings. process. procedural rights as other aliens.’’). The Departments disagree with The Departments also disagree with Further, contrary to commenters’ commenters that section 240 removal comments that the placement of aliens claims, placing aliens into asylum-and- proceedings are more efficient than who have passed a credible fear review withholding-only proceedings is not asylum-and-withholding-only in asylum-and-withholding-only inconsistent with the purposes of the proceedings or that more data is proceedings will somehow ‘‘tie the credible fear statute. See INA required to align asylum-and- hands’’ of law enforcement regarding an 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The withholding-only proceedings with the alien’s eligibility for certain visas. The credible fear process was designed to statutory language of INA rule has no bearing on an alien’s ability ensure that aliens subject to expedited 235(b)(1)(B)(ii), 8 U.S.C. to provide assistance to law removal are not summarily removed to 1225(b)(1)(B)(ii), especially when there enforcement, and the adjudication of a country where they may face was little analysis—and no data applications for S-, T-, and U-visas persecution on account of a protected offered—to support placing aliens with occurs outside of any immigration court ground or torture. This rule maintains positive credible fear determinations in proceedings.16 See generally 8 CFR those protections by ensuring that an removal proceedings in the first 214.2(t) (S-visa adjudication process), alien with a positive credible fear instance. See 85 FR at 36266 (stating 214.11 (T-visa adjudication process), finding receives a full adjudication of that the 1997 decision to place such 214.14 (U-visa adjudication process). their claim in asylum-and-withholding- aliens in removal proceedings was made Commenters also mischaracterize the only proceedings. with limited analysis, other than to note Departments’ policy reliance on DHS’s Regarding commenters’ concerns that the statute was silent on the type of prosecutorial discretion authority, about due process in asylum-and- proceeding that could be used). Most claiming that the Departments are withholding-only proceedings, the aliens subject to the expedited removal relying on this discretion as the legal Departments note that the rule provides process are, by definition, less likely to authority for placing aliens with the same general procedural protections be eligible for certain other forms of positive credible fear determinations as section 240 removal proceedings. See relief due to their relatively brief into asylum-and-withholding-only 85 FR at 36267 (‘‘These ‘asylum-and- presence in the United States. See, e.g., proceedings. However, it is the withholding-only’ proceedings generally INA 240A(b)(1), 8 U.S.C. 1229b(b)(1) expedited removal statute that provides follow the same rules of procedure that (cancellation of removal for certain non- the authority, see INA 235(b)(1)(B)(ii), 8 apply in section 240 permanent residents requires ten years U.S.C. 1225(b)(1)(B)(ii), not DHS’s proceedings....’’); accord 8 CFR of continuous physical presence); INA prosecutorial discretion. In the NPRM, 1208.2(c)(3)(i) (‘‘Except as provided in 240B(b)(1)(A), 8 U.S.C. 1229c(b)(1)(A) the Departments noted that it made this section, proceedings falling under (voluntary departure at the conclusion the jurisdiction of the immigration judge of proceedings requires an alien to have better policy sense to place aliens with pursuant to paragraph (c)(1) or (c)(2) of been physically present in the United positive credible fear determinations this section [i.e., asylum-and- States for at least one year prior to the into asylum-and-withholding-only withholding-only proceedings] shall be service of a notice to appear). In proceedings; placing aliens in section conducted in accordance with the same particular, they are less likely to be 240 proceedings after a credible fear rules of procedure as proceedings eligible for the simplest form of relief, determination ‘‘effectively negates conducted under 8 CFR part 1240, voluntary departure, because either they DHS’s original discretionary decision.’’ subpart A [i.e., removal proceedings].’’). are arriving aliens, INA 240B(a)(4), 8 85 FR at 36266. Moreover, just as in removal U.S.C. 1229c(a)(4), or they are seeking The Departments acknowledge proceedings, aliens will be able to asylum, 8 CFR 1240.26(b)(1)(i)(B) commenters’ concerns about CBP appeal their case to the BIA and Federal (requiring the withdrawal of claims for processing aliens for expedited removal circuit courts, as necessary. Finally, DOJ relief in order to obtain pre-hearing and the exercise of prosecutorial voluntary departure), or they have not discretion, but those issues are beyond 15 The Departments note that any comments been physically present in the United 16 regarding the potential expansion of expedited States for at least one year prior to being The Departments note that S-visa recipients are removal is outside the scope of this rule. Cf. already subject to withholding-only proceedings. Designating Aliens for Expedited Removal, 84 FR placed in proceedings, INA INA 214(k)(3)(C), 8 U.S.C. 1184(k)(3)(C); 8 CFR 35409 (July 23, 2019). 240B(b)(1)(A), 8 U.S.C. 1229c(b)(1)(A). 236.4(d), (e) and 1208.2(c)(2)(vi).

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the scope of the rule. Moreover, the rule a specific question of law to which an particularly on issues in which there is does not affect DHS’s use of agency decision is entitled to deference’’ conflicting circuit court precedent. prosecutorial discretion, nor does it (citing Grace I, 344 F. Supp. 3d at 136). Further, contrary to commenters’ alter any other statutory authority of Another organization alleged that the assertions, in most cases the CBP. Departments offer no explanation for the immigration judge conducting the credible fear review in person will be in 2.2. Consideration of Precedent When policy change, claiming there is ‘‘no discernable reason’’ for it other than to the same circuit in which the full Making Credible Fear Determinations in asylum application in asylum-and- the ‘‘Credible Fear’’ Process ‘‘limit the possibility of favorable case law in another jurisdiction.’’ withholding only proceedings would be Comment: One organization stated One organization noted that well- adjudicated if the judge finds the alien that the rule would ‘‘unnecessarily settled USCIS policy holds that, in the has a credible fear.17 Aliens in this narrow’’ the law that immigration case of a conflict or question of law, posture are subject to detention by DHS. judges must consider in the context of ‘‘generally the interpretation most Thuraissigiam, 140 S.Ct. at 1966 a credible fear review, restricting them favorable to the applicant is used when (‘‘Whether an applicant [subject to to the circuit court law in their own determining whether the applicant expedited removal] who raises an jurisdiction. The organization alleged meets the credible fear standard’’ asylum claim receives full or only that this ‘‘makes little sense’’ because regardless of where the credible fear expedited review, the applicant is not individuals seeking a credible fear interview is held. The organization entitled to immediate release.’’). As a review will often have their asylum claimed that this policy is in line with result, unless DHS moves the alien to a claim adjudicated in a jurisdiction with congressional intent, quoting a detention facility in a different circuit, different case law than the jurisdiction statement from Representative Smith the case would likely remain in the where their credible fear claim is that ‘‘[l]egal uncertainty must, in the same jurisdiction. Requiring the reviewed. As an example, one credible fear context, adhere to the immigration judge to review nationwide organization suggested that an asylum applicant’s benefit.’’ The organization circuit case law would only create seeker apprehended in Brownsville, alleged that the NPRM fails to note or inefficiencies in a credible fear review Texas, in the Fifth Circuit, could explain this departure from practice. process that Congress intended to be subsequently have his or her asylum streamlined. See INA Response: The Departments decline to claim heard in an immigration court 235(b)(1)(B)(iii)(III), 8 U.S.C. respond to comments centering on an located within another circuit’s 1225(b)(1)(B)(iii)(III) (requiring asylum officer’s consideration of jurisdiction. Because of this, the immigration judge review to be precedent as that issue was not organization urged asylum officers and completed ‘‘as expeditiously as addressed in this rule, and further immigration judges to consider all case possible, to the maximum extent disagree with commenters that law when determining the possibility of practicable within 24 hours, but in no immigration judges are currently succeeding on the claim, ‘‘[r]egardless of case later than 7 days’’ after the asylum required to consider legal precedent the location of the credible fear officer’s determination). determination.’’ from all Federal circuit courts in Moreover, the Departments have One organization claimed the rule credible fear proceedings. DOJ has not reviewed the statutory mandate in the could require asylum officers to order issued any regulations or guidance credible fear context and note that a rule the expedited removal of an applicant requiring immigration judges to use a requiring evaluation of a claim using who has shown an ability to establish ‘‘most favorable’’ choice of law standard law beyond that of a particular circuit asylum eligibility under section 208 of in credible fear review proceedings. See, could produce perverse outcomes the Act, 8 U.S.C. 1158, in another circuit e.g., 8 CFR 1003.42. contrary to the statute. For example, an or district, which the organization Moreover, the statute is silent as to alien could be found to have a alleged is contrary to section this choice of law question. See INA ‘‘significant possibility’’ of establishing 235(b)(1)(B)(v) of the Act, 8 U.S.C. 235(b)(1)(B)(iii)(III), 8 U.S.C. eligibility for asylum under section 208 1225(b)(1)(B)(v). The organization also 1225(b)(1)(B)(iii)(III). Due to this of the Act even though binding law of claimed this portion of the rule is ‘‘flatly ambiguity, the Departments are the circuit in which the application contrary’’ to the decision in Grace v. interpreting the statute to require would be adjudicated precludes the Whitaker, 344 F. Supp. 3d 96 (D.D.C. immigration judges to apply the law of alien from any possibility of 2018) (hereinafter ‘‘Grace I’’), overruled the circuit in which the credible fear establishing eligibility for asylum. Such in part, Grace v. Barr, 965 F.3d 883 review proceeding is located. This better an absurd result would be both contrary (D.C. Cir. 2020), holding that the same comports with long-standing precedent to the statutory definition of a credible provision in USCIS guidance was affirming the use of the ‘‘law of the fear, INA 235(b)(1)(B)(v), 8 U.S.C. contrary to the INA. The organization circuit’’ standard in immigration 1225(b)(1)(B)(v), and would further quoted Grace I, 344 F. Supp. 3d 96 in proceedings. See Jama v. ICE, 543 U.S. burden the system with claims that were which the court stated that ‘‘[t]he 335, 351 n.10 (2005) (‘‘With rare known to be unmeritorious at the outset. government’s reading would allow for exceptions, the BIA follows the law of The Departments decline to adopt a an [individual’s] deportation, following the circuit in which an individual case course of action that would lead to a negative credible fear determination, arises....’’ (citations omitted)); results inconsistent with the statute. even if the [individual] would have a Ballesteros v. Ashcroft, 452 F.3d 1153, Moreover, adopting the uniform rule significant possibility of establishing 1157 (10th Cir. 2006) (explaining that an proposed by the Departments would asylum under section 1158 during his or immigration judge ‘‘should analyze ameliorate otherwise significant her removal proceeding. Thus, the removability and relief issues using only operational burdens—burdens that government’s reading leads to the exact the decisions of the circuit in which he would be inconsistent with Congress’s opposite result intended by Congress.’’ or she sits . . . since it is to that circuit Id. at 140. The organization also claimed that any appeal from a final order of 17 Even in situations in which an immigration the rule violates Brand X because it removal must be taken’’). It will also judge conducts the review from a different location—e.g. by telephone or by video exceeds the Departments’ ‘‘limited provide clarity to immigration judges teleconferencing—in a different circuit, the rule ability to displace circuit precedent on conducting credible fear reviews, provides a clear choice of law principle to apply.

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goal of establishing an efficient and fair approach to credible-fear and refinements to the regulations in the expedited removal system. Without it, screening. future ‘‘to further refine the adjudicatory asylum officers and immigration judges In Grace v. Barr, the D.C. Circuit process.’’ 68 FR at 9825. around the country would potentially affirmed an injunction of USCIS’s Upon further review, however, DOJ have to consider and apply a shifting implementation of a ‘‘law of the circuit’’ has determined that 8 CFR 1235.1, patchwork of law from across the policy in credible fear proceedings. 965 1235.2, 1235.3, and 1235.5 are not country, and this obligation would F.3d 883 (D.C. Cir. 2020) (hereinafter needed in 8 CFR chapter V because they undermine the stated statutory aim of ‘‘Grace II’’). However, in that case, the concern procedures specific to DHS’s expedited removal: To remove aliens court affirmed an injunction based on examination of applicants for admission expeditiously. USCIS’s failure to explain the basis of and are outside the purview of DOJ’s The Departments’ choice-of-law rule its ‘‘law of the circuit’’ policy and immigration adjudicators. See 85 FR at in this context is reasonable. The most expressly declined to decide whether 36267. In order to prevent confusion natural choice-of-law principle is the the substance of such a policy—if and reduce the chance of future rule that the law of the circuit where the explained more fully—would be inconsistencies with 8 CFR 235.1, 235.2, interview is conducted governs. That is contrary to law. Id. at 903. Here, as 235.3, and 235.5, which are not the principle embraced by DOJ in detailed above, the Departments have amended, the rule removes and reserves adjudicating the merits of asylum explained the necessity of codifying a 8 CFR 1235.1, 1235.2, 1235.3, and claims, Matter of Anselmo, 20 I&N Dec. law of the circuit policy in credible fear 1235.5. Finally, in response to the 25, 31 (BIA 1989) (‘‘We are not required proceedings before immigration judges commenter’s particular concern, the to accept an adverse determination by and, to that end, are interpreting an Departments note that DOJ does not one circuit . . . as binding throughout ambiguous statutory provision, INA make parole determinations, and DHS’s the United States.’’), as well as by 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v) parole authority in 8 CFR 235.3(c) is circuit courts. For example, where the (defining ‘‘credible fear of persecution’’ both unaffected by this rule and outside law governing an agency’s adjudication by reference to eligibility for asylum), in the scope of the rulemaking generally. which the Departments are entitled is unsettled, an agency generally is 2.4. Reasonable Possibility as the deference. See Chevron, U.S.A., Inc., required to acquiesce only in the law of Standard of Proof for Statutory 467 U.S. at 844 (holding that, when the circuit where its actions will be Withholding of Removal and Torture- interpreting an ambiguous statute, ‘‘a reviewed; while ‘‘intracircuit Related Fear Determinations for Aliens court may not substitute its own acquiescence’’ is generally required, in Expedited Removal Proceedings and construction of a statutory provision for ‘‘intercircuit acquiescence’’ is not. See Stowaways a reasonable interpretation made by the Johnson v. U.S. R.R. Ret. Bd., 969 F.2d administrator of an agency’’). Comment: One organization noted 1082, 1093 (D.C. Cir. 1992). Because the that the rule would require that those circuits may disagree on the law, 2.3. Remove and Reserve DHS-Specific applying for withholding of removal to requiring acquiescence with every Procedures From DOJ Regulations prove a ‘‘reasonable fear’’ of circuit would charge the Departments Comment: In the context of discussing persecution, which is a higher standard with an impossible task of following the DOJ’s removal of DHS-specific than that required for asylum. The contradictory judicial precedents. See provisions from 8 CFR part 1235, at organization suggested that the drafters Nat’l Envtl. Dev. Ass’n Clean Air Project least one commenter expressed concern of the rule were targeting individuals v. EPA, 891 F.3d 1041, 1051 (D.C. Cir. that the rule would eliminate or make who are ineligible for asylum and are 2018); see also Grant Med. Ctr. v. more difficult the parole authority at 8 thus applying for withholding of Hargan, 875 F.3d 701, 709 (D.C. Cir. CFR 235.3(c). removal only. The organization noted 2017). Response: Following the enactment of that a large number of refugees may Intercircuit nonacquiescence the HSA, EOIR’s regulations were meet this criteria due to the principles are especially important transferred to or duplicated in a newly administration’s ‘‘unsuccessful where there is ‘‘venue uncertainty,’’ created chapter V of 8 CFR, with related attempts’’ to impose additional asylum meaning the agency cannot know at the redesignations. See Aliens and restrictions on individuals entering the time it issues its decision in which Nationality; Homeland Security; United States outside a port of entry, as circuit that decision will be reviewed. In Reorganization of Regulations, 68 FR well as those arriving at the southern those situations, an agency has 9824, 9830, 9834 (Feb. 28, 2003); see border after passing through third discretion in its choice of law, though also Aliens and Nationality; Homeland countries, if they did not apply for it must be candid about its Security; Reorganization of Regulations, asylum and have their application(s) nonacquiescence. See Grant Med. Ctr., 68 FR 10349 (Mar. 5, 2003). DOJ rejected in one of those countries. 875 F.3d at 707. The rule’s choice-of- transferred parts of the Code of Federal One commenter alleged that the rule law provision in this context is fully Regulations that pertained exclusively would ‘‘greatly increase the burden’’ of consistent with the Board’s long- to EOIR from chapter I to chapter V; individuals eligible only for standing approach and the duplicated parts of the Code of Federal withholding of removal or protection administrative-law principles embraced Regulations that related to both the INS under CAT to succeed in initial by circuit courts. At the time of the and EOIR, which were included in both interviews and present their cases credible-fear screenings by an asylum chapters I and V; and made technical before an immigration judge. The officer, the only circuit with a definite amendments to both chapters I and V. commenter noted that the rule would connection to the proceedings is the For example, DOJ duplicated all of part require asylum seekers who would be circuit where the screening of the alien 235 in the newly created 8 CFR part subject to a bar on asylum, including takes place. The location of the alien at 1235 because the Department those subject to the ‘‘transit ban’’ found the time of the credible fear determined that ‘‘nearly all of the at 8 CFR 208.13(c)(4)(ii), to meet the determination will be the determinative provisions of this part affect bond heightened standard in order to have factor as to which circuit’s law applies. hearings before immigration judges.’’ 68 their cases heard before an immigration Applying that circuit’s law is an FR at 9826. The Departments judge. The commenter alleged that the objective, reasonable, administrable, anticipated further future adjustments rule would ‘‘essentially eliminate’’ the

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‘‘significant possibility’’ standard set emphasized that these individuals will removal, stating that the Departments forth by Congress in the INA and not have time to gather their thoughts or offer no explanation for why this ‘‘broad replace it with a ‘‘reasonable collect evidence to support ‘‘highly fact- class’’ can now be treated as a possibility’’ standard which is much specific inquiries’’ at an interview ‘‘narrowly defined class whose members harder for asylum seekers to meet. One screening. Another organization stated can raise only one claim.’’ The organization claimed that, as a result, that asylum-seekers are screened in organization also accused the ‘‘[m]eritorious asylum seekers will be ‘‘exceedingly challenging Departments of failing to explain what screened out of the asylum system—a circumstances,’’ as well as in cursory authority they used to add to and raise reality Congress expressly prohibited.’’ interviews over the telephone. One the statutory burden of proof in One organization claimed that organization specifically alleged that the Congress’s ‘‘carefully described credible Congress intended to set a low screening Departments failed to consider how fear procedures.’’ INA 235(b), 8 U.S.C. standard for the credible fear process in trauma affects the fear screening 1225(b). order to aid eligible asylum seekers and process, emphasizing research showing One organization noted that a U.S. alleged that the NPRM fails to provide that trauma affects demeanor in ways district court vacated the ‘‘third country justification for raising this standard. that could ‘‘easily affect credibility’’ asylum ban regulations’’ on June 30, The organization expressed concern that (nervousness, inability to make eye 2020, see Capital Area Immigrants’ asylum officers lack the resources to contact, etc.). At least one organization Rights Coalition v. Trump,— ‘‘jump’’ from applying the ‘‘significant expressed particular concern for LGBTQ F.Supp.3d—, 2020 WL 3542481 (D.D.C. possibility’’ standard to the ‘‘reasonable asylum seekers, and another 2020) and also noted that the Ninth possibility’’ standard during a brief organization emphasized that arriving Circuit upheld a previous injunction interview and also emphasized that applicants are unrepresented, unlikely against the rule on July 6, 2020, see E. noncitizens are more likely to obtain to understand U.S. legal standards, and Bay Sanctuary Covenant v. Barr, 964 counsel in immigration court than in the may be fearful or reluctant to discuss F.3d 832 (9th Cir. 2020). The initial screening process. One their persecution with authorities. organization also referred to a separate commenter stated that the rule, One organization claimed the rule that it claimed attempted to ban ‘‘[u]nrealistically and unconscionably’’ Departments have offered no evidence asylum for individuals entering the heightens the standard individuals must that the current procedure of using one United States without inspection and meet upon arrival at the border and standard to screen for any claim for noted that this rule was ‘‘blocked’’ by limits the protections for individuals relief complicates or delays the two separate district courts. See E. Bay who ‘‘have or would be tortured.’’ expedited removal process, alleging that Sanctuary Covenant v. Trump, 354 One organization emphasized that the this argument is not supported by F.Supp.3d 1094 (N.D. Cal 2018); O.A. v. ‘‘reasonable possibility’’ standard is government data. The organization Trump, 404 F. Supp. 3d 109 (D.D.C. essentially the same burden of proof noted that the number of individuals 2019). The organization noted that, used when adjudicating an asylum removed through expedited removal has based on these cases, it is unclear who application in a full immigration increased fairly steadily over the years, would be eligible for withholding of hearing. The organization claimed, stating that 43 percent of removals removal or CAT only. The organization however, that individuals seeking a fear during 2018 were through the expedited concluded by emphasizing that determination will almost always have removal process and that this Congress created the credible fear less evidence and less time to present proportion has not changed over the standard as a safeguard due to ‘‘the life their case than individuals in court. As past decade. The organization also or death nature of asylum,’’ and a result, the organization alleged that asserted there is no evidence that described the proposed higher the standard of proof in fear ‘‘requiring asylum officers to evaluate evidentiary standard as ‘‘cruelly determinations should be lower than varying claims relating to the same irresponsible.’’ that used in immigration court hearings. group of facts with three different Response: In general, commenters Another organization criticized the screens would be simpler,’’ claiming appear to have confused multiple Departments’ assertion that raising the this would actually make the rulemakings, as well as the existing screening bar is necessary to ‘‘align’’ the determination more complicated. legal differences between and among screening with the burden of proof in The organization also disagreed with asylum, statutory withholding of the merits proceeding for each type of the Departments’ suggestion that DOJ’s removal, and protection under the CAT relief. The organization disagreed, language in a previous rule ‘‘imposing regulations. The Departments decline to noting that asylum officers must already the higher burden to a particular group adopt the commenters’ positions to the consider the merits burden of proof in a previous rule supports their extent they are based on inaccurate or when screening for fear under existing rationale’’ (citing 85 FR at 36270). The confused understandings of the law, as they must determine whether organization emphasized that, in the proposed rule and of the legal there is a ‘‘significant possibility’’ that previous rule, DOJ applied a higher distinctions between and among an applicant ‘‘could be eligible’’ for each screening standard strictly to asylum, statutory withholding of type of potential relief. The commenter individuals ‘‘subject to streamlined removal, and protection under the CAT asserted that this necessarily entailed a administrative removal processes for regulations. consideration of the burden of proof to aggravated felons under section 238(b) Contrary to commenters’ claims, the establish eligibility for those forms of of the Act and for [people] subject to change of the credible fear standards for relief. As a result, the higher screening reinstatement of a previous removal statutory withholding and protection burden ‘‘serves only to require more and order under section 241(a)(5) of the under the CAT regulations are unrelated stronger evidence before the merits Act.’’ Regulation Concerning the to the Departments’ other asylum- stage, and at a moment when applicants Convention Against Torture, 64 FR related regulatory efforts, which are are least likely to be able to amass it.’’ 8478, 8485 (Feb. 19, 1999). The outside the scope of this rule, and the One organization noted that many organization claimed DOJ specifically current change is not intended to credible fear applicants are ‘‘profoundly distinguished that group as different ‘‘target’’ aliens that are not subject to traumatized, exhausted, terrified,’’ and from the ‘‘broad class’’ of arriving those previous asylum regulations. See, unfamiliar with the legal process, and individuals subject to expedited e.g., Asylum Eligibility and Procedural

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Modifications, 84 FR 33829 (July 16, focus on cases more likely to be granted. weeded out, allowing the Departments 2019); Aliens Subject to a Bar on Entry And, contrary to commenters’ claims, to focus more of their resources on Under Certain Presidential the NPRM did not claim that the use of claims likely to have merit. Proclamations; Procedures for a single ‘‘significant possibility’’ 2.4.1. Specific Concerns With Protection Claims, 83 FR 55934 (Nov. 9, standard complicates or delays the ‘‘Significant Possibility’’ Standard 2018). Further, the change in standards expedited removal process. has no bearing on how any alleged The Departments recognize that a Comment: One commenter claimed trauma is assessed during the screening higher screening standard may make it the rule would make it much harder for process by either asylum officers or more difficult to receive a positive fear asylum seekers subject to expedited immigration judges. Adjudicators in determination. However, the removal to have their asylum requests both Departments have conducted these Departments disagree with commenters ‘‘fully considered’’ by an immigration assessments for many years and are that raising the screening standard for judge. The commenter noted that trained and well-versed in assessing the statutory withholding of removal and Congress intentionally set a low credibility of applicants, including CAT protection will require aliens to standard—‘‘significant possibility’’—for accounting for any alleged trauma that submit significantly stronger the credible fear interview in order to may be relevant. documentary evidence. At the credible prevent legitimate refugees from being As discussed in the NPRM, Congress fear interview stage, these claims rest deported; one organization noted that did not require the same eligibility largely on the applicant’s testimony, this standard was designed to ‘‘filter out standards for asylum, statutory which does not require any additional economic migrants from asylum withholding of removal, and protection evidence-gathering on the applicant’s seekers.’’ Commenters argued that the under the CAT in the ‘‘credible fear’’ part. See, e.g., 8 CFR 208.30(d), rule’s redefinition of the ‘‘significant screening process. See 85 FR at 36268– 208.30(e)(2) (describing the interview possibility’’ standard as ‘‘a substantial 71. In fact, the INA does not include any and explicitly requiring the asylum and realistic possibility of succeeding’’ references to statutory withholding of officer to make a credible fear contradicts the language Congress set removal or protection under the CAT determination after ‘‘taking into account forth in section 235(b)(1)(B)(v) of the regulations when explaining the the credibility of the statements made Act, 8 U.S.C. 1225(b)(1)(B)(v) and is ‘‘credible fear’’ screening process. See by the alien in support of the alien’s thus ‘‘ultra vires.’’ INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); claim’’). One organization argued that the see also The Foreign Affairs Reform and In addition, the Departments have legislative history confirms Congress’s Restructuring Act of 1998 (‘‘FARRA’’), long used the ‘‘reasonable possibility’’ intent to protect ‘‘bona fide’’ asylum Public Law 105–277, 112 Stat. 2681– standard for reasonable fear seekers. The organization cited the 822. determinations made under 8 CFR Judiciary Committee report to the House Instead, the Departments have the 208.31 and 8 CFR 1208.31, which cover version of the bill that stated that authority to establish procedures and certain classes of aliens who are ‘‘[u]nder this system, there should be no standards for statutory withholding of ineligible for asylum but who are danger that an alien with a genuine removal and protection under the CAT. eligible for statutory withholding of asylum claim will be returned to See INA 103(a)(1), 8 U.S.C. 1103(a)(1) removal and protection under the CAT persecution’’ and that ‘‘the asylum (‘‘The Secretary of Homeland Security regulations. See 8 CFR 208.31(a), officer should attempt to elicit all facts shall be charged with the administration 208.31(c), 1208.31(a), 1208.31(c).18 By relevant to the applicant’s claim.’’ The and enforcement of [the INA] and all changing the standard in credible fear organization included a statement from other laws relating to the immigration interviews for statutory withholding and Senator Orrin Hatch noting that ‘‘[t]he and naturalization of aliens * * *.’’); CAT protection, asylum officers will conference report struck a compromise’’ INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); process such claims under the same and the standard adopted was FARRA, Public Law 105–277, sec. standard, providing additional ‘‘intended to be a low screening 2242(b), 112 Stat. at 2681–822 consistency. Moreover, asylum officers standard for admission into the usual (providing that ‘‘the heads of the receive significant training and the full asylum process.’’ appropriate agencies shall prescribe Departments have no concerns that they Finally, one organization stated that regulations to implement the obligations will be able to properly apply the there is no ‘‘sliding scale for legal of the United States under Article 3’’ of standards set forth in this rule. See 8 standards based on the volume of CAT). CFR 208.1(b) (ensuring training of cases,’’ emphasizing that national Using this authority, the Departments asylum officers). security is irrelevant to the appropriate believe that, rather than being In short, it is both illogical and legal standard for credible fear. The ‘‘unrealistic[ ]’’ or ‘‘unconscionabl[e]’’ as inefficient to screen for three potential organization claimed that raising the commenters claim, raising the standards forms of protection under the same standard in order to ‘‘better secure the of proof to a ‘‘reasonable possibility’’ standard when two of those forms have homeland’’ contradicts the clear during screening for statutory an ultimately higher burden of proof. meaning of the statute and is ‘‘ultra withholding of removal and protection The Departments’ rule harmonizes the vires.’’ under the CAT regulations better aligns screening of the various applications Response: Again, commenters appear the initial screening standards of proof consistent with their respective ultimate to have confused the existing legal with the higher standards used to burdens and ensures that non- differences between and among asylum, determine whether aliens are in fact meritorious claims are more quickly statutory withholding of removal, and eligible for these forms of protection CAT protection, and the Department when applying before an immigration 18 Commenters raised concerns about analogizing declines to adopt the commenters’ judge. Further, as explained in the the use of the ‘‘reasonable possibility’’ screening positions to the extent they are based on NPRM, this higher standard will also standard in 8 CFR 208.31 and 1208.31, which inaccuracies or misstatements of law. serve to screen out more cases that are applies only to certain categories of aliens. The rule does not change the However, the Departments referenced those unlikely to be meritorious at a full regulations here and in the NPRM merely to show ‘‘significant possibility’’ standard in hearing, which will allow the that the ‘‘reasonable possibility’’ standard has long credible fear interviews for asylum overburdened immigration system to existed in other contexts. See, e.g., 85 FR at 36270. claims, which is set by statute. See INA

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235(b)(1)(B)(v), 8 U.S.C. merely requires the applicant establish Instead, the organization claimed the 1225(b)(1)(B)(v). As a result, asylum ‘‘a substantial and realistic possibility of language should read as follows: ‘‘[i]f claims will continue to be processed succeeding’’ on their asylum claim, the [asylum] officer conducting the under the ‘‘significant possibility’’ which in turn requires a showing of as interview determines that the alien is standard in credible fear interviews. little as a 10 percent chance of unable to participate effectively in the Instead, the rule only changes the persecution on account of a protected interview because of illness, fatigue, or standard to a ‘‘reasonable possibility’’ ground. See I.N.S. v. Cardoza-Fonseca, other impediments, the officer shall for statutory withholding of removal 480 U.S. 421, 431–32 (1987). This reschedule the interview.’’ and CAT protection claims. Congress additional language will help One organization also emphasized did not address the standards for these adjudicators and affected parties to that the rule would require asylum claims in credible fear interviews and ensure that the proper screening officers to consider bars to asylum, instead explicitly focused on asylum standard is used in the credible fear including the internal relocation bar,19 claims. See generally INA 235(b), 8 process. during initial fear screenings. The U.S.C. 1225(b)(1)(B) (describing asylum organization alleged that the rule seems 2.5. Proposed Amendments to the interviews). Therefore, the Departments to build off the ‘‘Asylum and Internal Credible Fear Screening Process are within their authority to change Relocation Guidance’’ issued by USCIS, these standards, as the use of a Comment: One organization claimed which the organization claimed was ‘‘reasonable possibility’’ standard does that the rule would essentially combine posted last summer ‘‘without going not contradict the ‘‘significant the credible fear interview with the through an NPRM.’’ Another possibility’’ language in the statute, merits hearing and require an asylum organization claimed that this portion of which only applies to asylum claims. officer to do both simultaneously. The the rule is ‘‘contrary to law and existing See generally INA 103(a)(1), 8 U.S.C. organization contended that this would practice,’’ noting that section 235(b) of 1103(a)(1) (‘‘The Secretary of Homeland leave applicants who turn themselves in the Act, 8 U.S.C. 1225(b), requires Security shall be charged with the to CBP with no time to prepare and asylum officers to determine whether administration and enforcement of this ‘‘essentially no chance of success.’’ The there is a ‘‘significant possibility’’ that chapter and all other laws relating to the organization emphasized that an applicant could establish eligibility immigration and naturalization of individuals arriving at the border are for asylum in some future proceeding. aliens....’’); INA 103(g)(2), 8 U.S.C. often ‘‘exhausted, stressed out, or ill,’’ One organization emphasized that most 1103(g)(2) (‘‘The Attorney General shall noting the high probability that an credible fear applicants are establish such regulations . . . as the individual will be physically, unrepresented and have difficulty Attorney General determines to be emotionally, or mentally unfit for an understanding the complex internal necessary for carrying out this interview that ‘‘may determine whether relocation analysis, noting that asylum section.’’). he and his family lives or dies.’’ The seekers would likely need to include Moreover, in response to commenters’ organization claimed this situation has detailed country conditions materials in concerns about the ‘‘significant been aggravated by the COVID–19 support of their claims. In addition, the possibility’’ asylum standard in credible pandemic. organization claimed that adding ‘‘an fear proceedings, the Departments note One organization stated that some additional research burden’’ on asylum that this change does not raise the individuals fleeing persecution and officers would be inefficient. standard; instead, it merely codifies torture ‘‘bypass CBP’’ because they lack One organization noted that the rule existing policy and practice in order to knowledge about asylum or believe they would require asylum officers to provide greater clarity and transparency will be treated unfairly. The determine whether an applicant is to adjudicators and affected parties. organization noted that some of these subject to one of the mandatory bars USCIS already uses the ‘‘significant individuals prepare asylum applications under section 208(a)(2)(B)–(D) of the possibility’’ definition in screening on their own (either prior or subsequent Act, 8 U.S.C. 1158(a)(2)(B)–(D), and, if whether an asylum-seeker has to apprehension by ICE) and so, whether the bar at issue is also a bar established a credible fear of emphasized that these cases, which fall to statutory withholding of removal and persecution. See Memorandum from ‘‘outside the established procedures,’’ withholding of removal under CAT. The John Lafferty, Chief, Asylum Div., U.S. are far more difficult to regulate. The organization emphasized that each of Citizenship and Immigration Servs., organization contended that, if the the mandatory bars involves intensive Release of Updated Asylum Division credible fear and merits interviews are legal analysis and claimed that requiring Officer Training Course (ADOTC) combined, poor asylum or CAT asylum officers to conduct this analysis Lesson Plan, Credible Fear of protection seekers will be incentivized during a screening interview would Persecution and Torture Determinations to evade CBP in order to try and obtain result in ‘‘the return of many asylum 2 (Feb. 28, 2014). help preparing an application. The seekers to harm’s way.’’ This definition is also consistent with organization emphasized that if the Another organization claimed this Congress’s intent to create ‘‘a low Departments replace the existing portion of the rule is ‘‘unworkable,’’ screening standard for admission into procedure with one that is ‘‘essentially noting that the mandatory bars are the usual full asylum process,’’ 142 impossible for many deserving people to heavily litigated and often apply Cong. Rec. S11491 (daily ed. Sept. 27, use,’’ their jobs will become more differently from circuit to circuit. The 1996) (statement of Senate Judiciary difficult and their efforts less efficient. organization alleged that the new Committee Chairman Orrin Hatch), and One organization expressed concern with the statutory text. See INA regarding the specific language in 19 The Departments note that the possibility of 235(b)(1)(B)(v), 8 U.S.C. proposed 8 CFR 208.30(d)(1), claiming internal relocation is not a mandatory bar to asylum. Rather, it is part of the underlying asylum 1225(b)(1)(B)(v). For example, the that it ‘‘does not pass either simple eligibility determination and could rebut a ‘‘significant possibility’’ standard does humanity or due process.’’ The presumption of a well-founded fear after a finding not require a showing that it is more organization conceded that the language of past persecution, or be a reason to find that the likely than not that the applicant can of existing 8 CFR 208.30(d)(1) is applicant does not have a well-founded fear of persecution. As it is still a consideration during the meet their asylum burden in identical, but claimed this ‘‘does not credible fear screening, the Departments address the immigration court. Instead, the standard excuse the proposed provision.’’ comment in the response below.

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credible-fear analysis would require One organization noted a statement asylum officers in conducting a credible asylum officers to exceed their statutory from Senator Patrick Leahy, which fear interview with respect to screening authority and would violate due process introduced a newspaper article that the alien for eligibility for asylum, and by mandating fact-finding in a expressed concern that an unenacted any alien who is found to have a procedure that does not provide early version of IIRIRA ‘‘gives virtually credible fear is referred to an applicants with notice or the final authority to immigration officers at immigration judge for asylum-and- opportunity to respond with evidence. 300 ports of entry to this country.’’ 142 withholding-only proceedings for One organization claimed that Cong. Rec. S4461 (daily ed. May 1, consideration of the relief application. ‘‘countless asylum-seekers could be 1996) (statement of Senator Patrick See 8 CFR 208.30(g). This rule does not erroneously knocked out of the process Leahy). The organization also alleged change the fundamental structure of the based on hasty decisions, that ‘‘[g]iving one agency unfettered credible fear process. Instead, during the misunderstandings, and limited power to decide whether an asylum credible fear interview, the rule information,’’ noting that the existing seeker ever has a day in court goes additionally requires the asylum officer rule ‘‘errs in favor of review.’’ against the intent of Congress.’’ to consider internal relocation and The organization also expressed Response: In general, most of the relevant asylum bars as part of his or her concern that the rule would require commenters’ concerns are speculative determination, and separately to treat asylum officers to treat an individual’s and fail to account for the fact-specific the alien’s failure to request a review of silence as a reason to deny an and case-by-case nature of the a negative fear determination as immigration judge’s review of a negative interviews and reviews in question. declining the request. credible fear interview. The Moreover, their concerns tacitly Regarding commenters’ concerns organization emphasized that many question the competence, integrity, and about unrepresented aliens having asylum seekers do not understand what professionalism of the adjudicators difficulty with the internal relocation is happening when they receive a conducting interviews and reviews— analysis in the credible fear process, the negative credible fear determination professionals who are well-trained and Departments note that aliens are able to from an asylum officer and do not know experienced in applying the relevant consult with a person of their choosing what it means to seek review by an law in the context of these screenings prior to their credible fear interview and immigration judge; as a result, many and reviews. have that person present during the asylum seekers ‘‘will simply not answer The suggestion that aliens genuinely interview. See 8 CFR 208.30(d)(4). the question.’’ The organization noted seeking refuge regularly evade officials Considering internal relocation in the that many of these individuals are still of the very government from whom they credible fear screening context is ‘‘tired and traumatized’’ from their seek refuge is unsupported by evidence. consistent with existing policy and journey, and some have been separated Nothing in the rule restricts or prohibits practice. See 85 FR 36272. Moreover, from their families. any organization from providing there is no reason to believe that an The organization noted that, assistance to any alien; instead, the alien, in the course of providing historically, asylum officers have been rule’s focus is on assisting adjudicators testimony regarding the facts of his or required to request immigration judge with clearer guidance and more efficient her claim, cannot also provide review on behalf of individuals who processes. testimony about his or her ability to remain silent; however, the organization Additionally, many of the internally relocate; in fact, in many alleged that the rule would ‘‘reverse commenters failed to acknowledge the cases, an alien’s relocation is already existing policy’’ and require officers to multiple layers of review inherent in the part of the narrative provided in support indicate that unresponsive individuals screening process, which reduces the of the alien’s overall claim. In addition, do not want review. The organization likelihood of any errors related to the Departments disagree that requiring noted that the NPRM does not include consideration of the facts of the claim or asylum officers to consider internal data on how many asylum seekers application of relevant law. See relocation is inefficient. To the contrary, succeed in their credible fear claims Thuraissigiam, 140 S.Ct. at 1965–66 as current practice requires such issues before an immigration judge without (‘‘An alien subject to expedited removal to be adjudicated in section 240 removal specifically making a request to an thus has an opportunity at three levels proceedings, screening out cases subject asylum officer; nor does the rule contain to obtain an asylum hearing, and the to internal relocation before requiring a data on how many immigration judge applicant will obtain one unless the lengthier proceeding before an reviews are ‘‘expeditiously’’ resolved asylum officer, a supervisor, and an immigration judge is inherently more after the judge explains the asylum immigration judge all find that the efficient. It also has a further salutary seeker’s rights and the individual applicant has not asserted a credible effect of increasing the ability of chooses not to pursue review. The fear.’’). To the extent that commenters adjudicators to address meritorious organization claimed that its concerns mischaracterized the rule, provided claims in a more timely manner. Lastly, are enhanced by the decision to allow comments that are speculative or contrary to commenters’ assertions, this CBP officers, rather than fully trained unfounded, suggested that the rule is unrelated to USCIS guidance on USCIS asylum officers, to conduct Departments should not follow the law, internal relocation, and any issues credible fear interviews. One or ignored relevant procedural relating to such guidance are outside the organization emphasized that it is protections that already address their scope of this rule. unreasonable to assume that asylum concerns, the Departments decline to Regarding commenters’ concerns seekers who decline to expressly request adopt such comments. about requiring asylum officers to further review are declining review by The Departments disagree that this determine whether certain asylum bars an independent agency. The rule combines the credible fear apply during the credible fear interview, organization stated that ‘‘[a]bsent a clear interview with a full hearing on an the Departments note that asylum waiver of the opportunity for review by asylum application, or that the credible officers are well trained in asylum law an independent agency, it is reasonable fear interview represents the ‘‘final’’ and are more than capable of to assume that asylum seekers arriving adjudication of an asylum application. determining whether long-standing at our borders wish to pursue all This rule maintains the same statutory bars apply, especially in the available avenues of relief.’’ ‘‘significant possibility’’ standard for credible fear screening context. INA

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235(b)(1)(E), 8 U.S.C. 1235(b)(1)(E) applicant has not asserted a credible 3. Form I–589, Application for Asylum (defining an asylum officer as one who fear.’’). and for Withholding of Removal, Filing ‘‘has had professional training in Regarding commenters’ concerns that Requirements aliens do not understand the credible country conditions, asylum law, and 3.1. Frivolous Applications interview techniques comparable to that fear process and, therefore, will refuse provided to full-time adjudicators of to indicate whether they want an 3.1.1. Allowing Asylum Officers To applications under [INA 208, 8 U.S.C. immigration judge to review their Make Frivolousness Findings 1158], and . . . is supervised by an negative fear finding, the Departments Comment: Commenters expressed a officer who [has had similar training] first note that if an alien requests range of concerns regarding the and has had substantial experience asylum or expresses a fear of return, the proposed changes to allow DHS asylum adjudicating asylum applications.’’); see alien is given an M–444 notice, officers to make frivolousness findings generally 8 CFR 208.1(b) (covering Information about Credible Fear and deny applications or refer training of asylum officers). Interview, which explains the credible applications to an immigration judge on fear process and the right to an attorney that basis. 85 FR at 36274–75. Moreover, the statute requires asylum at no cost to the U.S. Government. It officers to determine whether ‘‘the alien Commenters expressed concerns would be unusual for an alien who has about asylum officers’ training and could establish eligibility for asylum already undergone an interview, relayed under section 1158 of this title,’’ which qualifications to make frivolousness a claim of fear, answered questions from findings. For example, at least one would by extension include the an asylum officer about his or her claim, commenter noted that these DHS application of the bars listed in section and continued to maintain that he or officers are not required to earn law 1158 that are a part of this rule. See INA she has a genuine fear of being returned degrees. Another organization disagreed 235(b)(1)(B)(v), 8 U.S.C. to his or her country of nationality to with the NPRM’s assertion that asylum 1225(b)(1)(B)(v). Further, asylum then—at the next step—be unaware of officers are qualified to make the nature of the process when asked officers already assess whether certain frivolousness determinations because of whether he or she wishes to have bars may apply to applications in the their current experience making someone else review the claim. The credible fear context—they simply do credibility determinations, emphasizing Departments further note that not apply them under current that ‘‘credibility and frivolous regulations require the asylum officer to regulations. See Government determinations differ significantly.’’ At Accountability Office, Actions Needed ask aliens whether they wish to have an immigration judge review the negative least one organization noted that the to Strengthen USCIS’s Oversight and applicant has the burden of proof in a Data Quality of Credible and credible fear decision. See 8 CFR 208.30(g) (requiring the asylum officer credibility determination while the Reasonable Fear Screenings at 10 (Feb. government bears the burden of proof in 2020), https://www.gao.gov/assets/710/ to ‘‘provide the alien with a written notice of decision and inquire whether a frivolousness determination. 704732.pdf (‘‘In screening noncitizens At least one organization emphasized for credible or reasonable fear.... [a] the alien wishes to have an immigration judge review the negative decision, that this authority is currently only USCIS asylum officer is to determine if vested in immigration judges and the the individual has any bars to asylum or using Form I–869’’). And the relevant form states, ‘‘You may request that an BIA, and commenters expressed withholding of removal that will be concern that allowing asylum officers to pertinent if the individual is referred to Immigration Judge review this decision.’’ See Form I–869, Record of make frivolousness findings improperly immigration court for full removal changes the role of asylum officers in proceedings.’’); U.S. Citizenship and Negative Credible Fear Finding and Request for Review by Immigration the asylum system. For example, one Immigr. Serv., Lesson Plan on Credible organization claimed that allowing Fear of Persecution and Torture Judge. These procedures provide explicit asylum officers to make frivolousness Determinations at 31 (2019), https:// informational protections to individuals determinations ‘‘improperly changes fingfx.thomsonreuters.com/gfx/mkt/11/ in the credible fear process, and treating their role from considering 10239/10146/2019%20training%20 refusals as affirmative requests only humanitarian relief, to being an document%20for%20asylum%20 serves to create unnecessary and undue enforcement agent.’’ Commenters noted screenings.pdf (‘‘Even though the bars to burdens on the immigration courts. a law professor’s statement that asylum do not apply to the credible fear Although the Departments do not ‘‘allowing asylum officers to deny determination, the interviewing officer maintain data on how many individuals applications conflicts with a mandate must elicit and make note of all refuse to request immigration judge that those asylum screenings not be information relevant to whether a bar to review of a negative fear finding, the adversarial.’’ Suzanne Monyak, Planned asylum or withholding applies or not.’’). Departments believe it is reasonable to Asylum Overhaul Threatens Migrants’ Lastly, responding to commenters’ require an individual to answer Due Process, LAW 360 (June 12, 2020), concerns that such determinations affirmatively when being asked by an https://www.law360.com/access-to- would be ‘‘final,’’ this rule does not asylum officer if the individual wishes justice/articles/1282494/planned- change the existing process allowing for to have their negative fear finding asylum-overhaul-threatens-migrants- an immigration judge to review any reviewed. due-process (quoting Professor Lenni B. negative fear determination, which In response to a commenter’s concern Benson). would include any bar-related negative about 8 CFR 208.30(d)(1), which allows Commenters suggested that the rule fear determination. 8 CFR 208.30(g); see an asylum officer to reschedule a would not require USCIS to allow also Thuraissigiam, 140 S.Ct. at 1965– credible fear interview under certain asylum applicants to address 66 (‘‘An alien subject to expedited circumstances, the Departments note inconsistencies in their claims, alleging removal . . . has an opportunity at three that this rule does not change any that individuals appearing in non- levels to obtain an asylum hearing, and language in that subparagraph and, adversarial proceedings before a DHS the applicant will obtain one unless the therefore, any comments regarding that officer would not be granted important asylum officer, a supervisor, and an subparagraph are outside the scope of procedural protections. One immigration judge all find that the this rule. organization cited both the U.S. Court of

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Appeals for the Second Circuit and the subsidiary determinations such as allowing adjudicators of asylum BIA to support its claim that a frivolousness findings.20 applications to consider, inter alia, comprehensive opportunity to be heard Commenters are incorrect that the ‘‘candor’’ and ‘‘falsehoods’’ in assessing makes sense in the frivolousness Departments analogized credibility an applicant’s credibility. INA context, noting that immigration determinations to frivolousness 208(b)(1)(B)(iii), 8 U.S.C. enforcement is not limited to initiating findings. See 85 FR at 36275. Instead, 1158(b)(1)(B)(iii). and conducting prompt proceedings the Departments discussed asylum In short, the Departments find that that lead to removals at any cost. Liu v. officers’ credibility findings as allowing asylum officers to make U.S. Dep’t of Justice., 455 F.3d 106, 114 background regarding the mechanisms frivolousness findings does not conflict n.3 (2d Cir. 2006); Matter of S–M–J–, 21 currently used by asylum officers to with the requirement that asylum I&N Dec. 722, 727, 743 (BIA 1997). approach questions similar to those officers conduct asylum interviews ‘‘in involving frivolousness. Id. a nonadversarial manner.’’ 8 CFR One organization stated that, although Nevertheless, the Departments disagree 208.9(b). Instead, asylum officers will immigration judges would have de novo with commenters’ implication that consider questions of frivolousness in review of findings by asylum officers, an asylum officers should not be permitted the same manner that they consider adverse finding is ‘‘always part of the to make frivolousness findings because other questions of the applicant’s DHS toolbox’’ in immigration court and the government bears the burden of eligibility for asylum, such as whether is considered by immigration judges. proof. Not only does the statute not the applicant has suffered past Response: As stated in the proposed assign a burden of proof to the persecution or whether the applicant rule, the Departments find that allowing Departments regarding frivolousness fears harm on account of a protected asylum officers to make frivolousness findings, INA 208(d)(6), 8 U.S.C. ground. Just as interview questions findings in the manner set out in the 1158(d)(6), but for those not in lawful about these eligibility factors are proposed rule and adopted as final in status, asylum officers’ frivolousness appropriate topics for asylum officers in this rule will provide many benefits to findings are subject to de novo review the current interview process, questions the asylum process, including by an immigration judge, and must and consideration of frivolousness are ‘‘strengthen[ing] USCIS’s ability to root simply be sufficiently supported. similarly appropriate. Regarding commenters’ concerns out frivolous applications more Commenters are further incorrect that about procedural protections for aliens efficiently, deter[ing] frivolous filings, allowing asylum officers to make who appear before an asylum officer for and ultimately reduc[][ing] the number frivolousness findings improperly converts the USCIS affirmative an interview, the Departments of frivolous applications in the asylum emphasize that both the proposed rule system.’’ 85 FR at 36275. application process from non- adversarial to adversarial. The purpose and this final rule prohibit a The Departments disagree with of the non-adversarial interview is to frivolousness finding unless the alien commenters’ allegations that asylum ‘‘elicit all relevant and useful has been provided the notice required officers are not qualified or trained to information bearing on the applicant’s by section 208(d)(4)(A) of the Act, 8 make frivolousness findings. Instead, all eligibility for asylum.’’ 8 CFR 208.9(b) U.S.C. 1158(d)(4)(A) of the asylum officers receive significant (emphasis added). There is nothing consequences under section 208(d)(6) of specialized ‘‘training in international inherently contradictory—or the Act, 8 U.S.C. 1158(d)(6), of filing a human rights law, nonadversarial adversarial—in eliciting all relevant and frivolous asylum application. See 8 CFR interview techniques, and other relevant useful information regarding an 208.20(d), 1208.20(d). This requirement national and international refugee laws applicant’s eligibility for asylum and complies with the Act, which does not and principles’’ and also receive then determining, based on that require any further warning or colloquy ‘‘information concerning the information, that the applicant is in advance of a frivolousness finding. persecution of persons in other ineligible for asylum because the Accordingly, while commenters are countries on account of race, religion, applicant knowingly filed a frivolous correct that the rule does not require nationality, membership in a particular application. Moreover, a nonadversarial USCIS to allow asylum applicants to address inconsistencies prior to a social group, or political opinion, process does not mean that the asylum frivolousness finding or follow any torture of persons in other countries, officer simply has to accept all claims other delineated procedures, the and other information relevant to made by an alien as true; if that were the Departments reiterate that, as stated in asylum determinations.’’ 8 CFR case, an asylum officer could never refer the proposed rule, the procedural 208.1(b). Moreover, there is no doubt an application based on an adverse requirements provided by the rule for a that asylum officers are qualified to credibility determination. Further, frivolousness finding comply with the make significant determinations equating the nonadversarial asylum Act’s requirements. 85 FR at 36276–77. regarding asylum claims, including the interview process with a prohibition on Further, the Departments emphasize most important determination—an finding an application to be frivolous is that, for aliens who lack legal status and adjudication on the merits regarding in tension with statutory provisions who are referred to an immigration whether or not an alien has judge because the asylum officer did not 20 demonstrated eligibility for asylum. See, Although not strictly applicable to asylum grant asylum to the alien, see 8 CFR e.g., 8 CFR 208.14(c) (‘‘If the asylum officers who adjudicate asylum applications under section 208 of the Act, the Departments note that 208.14(c)(1), USCIS asylum officers’ officer does not grant asylum to an the definition of an asylum officer in other contexts frivolousness findings are not given applicant after an interview . . . the as one who ‘‘has had professional training in effect and are subject to an immigration asylum officer shall deny, refer, or country conditions, asylum law, and interview judge’s de novo review. 8 CFR dismiss the application....’’). Given techniques comparable to that provided to full-time adjudicators of applications’’ under section 208 and 208.20(b). Accordingly, for most, if not asylum officers’ authority and is supervised by someone who has had ‘‘substantial all, aliens who may be subject to a qualifications to make determinations experience’’ adjudication asylum applications frivolousness finding by an asylum on the underlying merits of asylum further supports the determination that asylum officer, this further review is effectively applications, the Departments find that officers are well-qualified to make frivolousness determinations. INA 235(b)(1)(E) (8 U.S.C. the procedural protection called for by they are clearly qualified to make 1225(b)(1)(E)). commenters, as the alien will be on

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notice regarding the possible 36274. The commenter concluded that emphasizing that representatives are frivolousness finding and should be lowering this standard is ‘‘ultra vires allowed to put forth ‘‘a good faith prepared to and expect to explain the and an abuse of discretion.’’ argument for the extension, issues surrounding it. Commenters noted that, to be modification, or reversal of existing law The Departments agree with considered frivolous, an application or the establishment of new law.’’ See commenters that DHS trial attorneys in must have been ‘‘knowingly made,’’ and 8 CFR 1003.102(j)(1). Similarly, immigration court may provide the individual must have been given commenters alleged that the imposition arguments regarding frivolousness in notice at the time of filing pursuant to of a permanent bar on applicants who any appropriate case. However, as also section 208(d)(4)(A) of the Act 8 U.S.C. raise claims challenging existing law stated in the proposed rule, the 1158(d)(4)(A). Commenters expressed ‘‘deters representatives from putting possibility of frivolousness findings in concern that the NPRM seeks to redefine forth nuanced arguments,’’ contending immigration court alone has been the term ‘‘knowingly’’ to include that a representative’s ethical duty to insufficient to deter frivolous filings ‘‘willful blindness’’ toward make every argument on a client’s consistent with the congressional intent frivolousness. At least one organization behalf could potentially subject the behind section 208(d)(6) of the Act, 8 expressed concern that the NPRM relies client to the permanent bar. In addition, U.S.C. 1158(d)(6). 85 FR at 36275. on Global-Tech Appliances, Inc. v. SEB commenters argued that the ability of Allowing asylum officers to also S.A., 563 U.S. 754, 769 (2011) to attorneys to make good faith arguments consider and make determinations support its definition for ‘‘knowingly,’’ has been ‘‘crucial to modifying and regarding whether an affirmative asylum emphasizing that this case ‘‘involved expanding the law,’’ emphasizing that applicant’s application is frivolous sophisticated litigants represented by good faith arguments by representatives provides efficiencies not available from attorneys familiar with the intricacies of allow asylum seekers to pursue ‘‘a claim consideration of questions of American patent law’’ and contending to the full extent of the law.’’ One frivolousness by an immigration judge that it would be inappropriate to hold organization stated that, by imposing alone, including providing immigration asylum seekers to this standard. penalties on individuals who make good judges with a more robust and Commenters stated that the NPRM does faith attempts to seek protection ‘‘in developed written record regarding not adequately explain how ‘‘willful light of contrary law based on different frivolousness. Id. blindness’’ differs from recklessness or jurisdictions,’’ the rule ‘‘undoes years of Finally, to the extent that commenters negligence. jurisprudence in this field.’’ suggested the proposed changes should At least one organization expressed Commenters also emphasized that the not be implemented because they would concern that the rule removes the rule would expand when the penalties make it easier to detect asylum fraud requirements that (1) a fabrication be for a frivolous filing may attach and and would harm aliens who submit deliberate; and (2) the deliberate fraudulent asylum applications, the fabrication be related to a material would require individuals who wish to Departments do not find such element of the case. The organization challenge a denial of asylum in Federal suggestions compelling enough to claimed the rule suggests that asylum court to risk a finding that would bar warrant deleting such changes. See seekers who are unaware that an any future immigration relief. One Angov v. Lynch, 788 F.3d 893, 901, 902 ‘‘essential element’’ is fabricated would commenter alleged that, should an (9th Cir. 2015) (noting ‘‘an unfortunate be permanently barred from immigration judge find an application to reality that makes immigration cases so immigration benefits. The organization be frivolous under the rule, the different from all other American noted that the NPRM does not define applicant would be ineligible for all adjudications: Fraud, forgery and ‘‘essential’’ but instead focuses on forms of immigration relief simply for fabrication are so common—and so ‘‘fabricated material evidence,’’ ‘‘making a weak asylum claim.’’ One difficult to prove—that they are emphasizing that, given the variance of organization expressed concern that, as routinely tolerated’’). Cases involving standards, courts have held that a result, asylum seekers would not seek asylum fraud are ‘‘distressingly ‘‘fabrication of material evidence does relief for fear of losing their case and common,’’ id. at 902, and the not necessarily constitute fabrication of being accused of submitting a frivolous Departments are committed to ensuring a material element,’’ quoting Khadka v. application. One organization claimed the integrity of immigration proceedings Holder, 618 F.3d 996, 1004 (9th Cir. that the rule’s frivolousness procedure by using all available statutory tools to 2010). is designed to ‘‘instill fear in applicants root out such fraud. Another organization stated that to keep them from applying.’’ Another while ‘‘[f]alse and fabricated evidence is organization emphasized that 3.1.2. Changes to the Definition of inappropriate,’’ poor language skills and expediency is ‘‘inappropriate’’ in the ‘‘Frivolous’’ faulty memory can ‘‘produce honest context of a determination that would Comment: Commenters expressed a mistakes that look like falsification,’’ ‘‘subject the applicant to one of the range of concerns with the rule’s emphasizing that the rule’s definition of harshest penalties in immigration law.’’ changes to the definition of ‘‘frivolous’’ ‘‘frivolous’’ provides the Departments Commenters otherwise emphasized the and the expanded scope of applications with ‘‘numerous opportunities to seriousness for applicants of that could qualify as such. One pressure applicants.’’ frivolousness findings. commenter claimed the rule would Commenters expressed particular At least one organization called the make it easier for immigration judges concerns with the rule’s changes so that rule ‘‘exceptionally unfair,’’ and asylum officers to ‘‘throw out’’ an application that lacks merit or is emphasizing that many asylum seekers asylum requests as frivolous. foreclosed by existing law could result are unrepresented and do not speak At least one commenter noted that, in a frivolousness finding, particularly English, making it difficult for them to prior to the enactment of section because case law involving asylum is understand the complexities of ‘‘the 208(d)(6) of the Act 8 U.S.C. 1158(d)(6), constantly changing. For example, at ever-evolving law.’’ The organization a frivolous asylum application was least one organization contended that noted that many asylum seekers fall defined in the employment context as the rule contradicts existing regulations prey to unscrupulous attorneys or ‘‘manifestly unfounded or abusive’’ and regarding a representative’s duty to notarios who file asylum applications ‘‘patently without substance.’’ 85 FR at advocate for his or her client, for improper purposes, arguing that it is

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entirely unfair to penalize applicants in different types of frivolousness, such as as it is generally interpreted, is a these types of situations. abusive filings, filings for an improper reasonable interpretation that better Finally, at least one organization purpose, or patently unfounded filings. aligns the regulations with claimed that the rule would increase the Regarding the inclusion of willful congressional intent to limit and deter workload of immigration judges, as they blindness in determining what frivolous applications. would be forced to determine whether applications will be considered Regarding the four grounds for finding the legal arguments presented sought to knowingly frivolous, the Departments an asylum application frivolous at 8 ‘‘extend, modify, or reverse the law’’ or reiterate that the inclusion of a willful CFR 208.20(c) and 1208.20(c), the were merely foreclosed by existing law. blindness standard as part of a Departments emphasize that an The organization argued that, because of ‘‘knowing’’ action is consistent with application will not be found to be the burdens already placed on long-standing legal doctrine: frivolous unless the alien knew, or was immigration judges, this expectation is The doctrine of willful blindness is well willfully blind to the fact, that the unrealistic and ‘‘adds another layer to established in criminal law. Many criminal application met one of the four grounds. the litigation of referred asylum cases’’ statutes require proof that a defendant acted Accordingly, commenters are incorrect in immigration court. knowingly or willfully, and courts applying that an alien who does not know that an Response: In general, commenters on the doctrine of willful blindness hold that essential element is fabricated will be at this point either mischaracterized or defendants cannot escape the reach of these statutes by deliberately shielding themselves risk of an immigration judge finding that misstated the proposed rule or relied his or her application is frivolous. solely on a hypothetical and speculative from clear evidence of critical facts that are strongly suggested by the circumstances. The Similarly, an alien who submits a claim ‘‘parade of horribles’’ that ignores the traditional rationale for this doctrine is that that is clearly foreclosed by the actual text and basis of the rule. defendants who behave in this manner are applicable law but who, as noted by Contrary to commenters’ concerns, the just as culpable as those who have actual commenters, does not know that the Departments do not believe that the knowledge.... It is also said that persons claim is so clearly foreclosed, would not proposed rule allows immigration who know enough to blind themselves to have his or her claim found frivolous on judges or asylum officers to treat direct proof of critical facts in effect have that basis.22 legitimate asylum requests as frivolous. actual knowledge of those facts.... Instead, the rule establishes four limited Global-Tech Appliances, Inc., 563 U.S. The Departments disagree that the grounds for a frivolousness finding: at 766 (internal citations omitted); 21 see rule will enable the Departments to Applications that (1) contain a also, e.g., United States v. Caraballo- ‘‘pressure’’ applicants who make fabricated essential element; (2) are Rodriguez, 726 F.3d 418 (3d Cir. 2013) mistakes of fact in the context of their premised on false or fabricated evidence (noting that ‘‘knowledge’’ can be application. Two of the bases related to unless the application would have been demonstrated by actual knowledge or fabricated elements or evidence, neither granted absent such evidence; (3) are willful blindness.); United States v. of which can be characterized filed without regard to the merits of the Perez-Melendez, 599 F.3d 31, 41 (1st appropriately as a mistake of fact. The claim; or (4) are clearly foreclosed by Cir. 2010) (‘‘Willful blindness serves as other two bases go to the merits of the applicable law. 8 CFR 208.20(c)(1)–(4), an alternate theory on which the case or to applicable law, and neither of 1208.20(c)(1)–(4). In addition, the rule government may prove knowledge.’’). those turn on a mistake of fact. provides that an alien ‘‘knowingly files The doctrine of willful blindness One commenter expressed concern a frivolous asylum application if . . . applies in many civil proceedings as about the NPRM’s proposed change, in [t]he alien filed the application with well. See Global-Tech Appliances, 563 the context of the definition of frivolous, either actual knowledge, or willful U.S. at 768 (‘‘Given the long history of from a fabricated ‘‘material’’ element to blindness, of the fact that the willful blindness and its wide a fabricated ‘‘essential’’ element. The application’’ was one of those four acceptance in the Federal Judiciary, we existing regulatory text provides that types. 8 CFR 208.20(a)(2), 1208.20(a)(2). can see no reason why the doctrine ‘‘an asylum application is frivolous if These changes are not ultra vires or an should not apply in civil lawsuits for any of its material elements is abuse of discretion. The Departments induced patent infringement under 35 deliberately fabricated’’; under the emphasize that the regulations interpret U.S.C. 271(b).’’). Given this background, NPRM, an application that contained a and apply the INA itself, the relevant if Congress did not wish to allow for fabricated ‘‘essential element’’ might provisions of which postdate the willfully blind actions to satisfy the have been found frivolous. The regulation defining frivolous as ‘‘knowing’’ requirement of section Departments acknowledge that the ‘‘manifestly unfounded or abusive.’’ In 208(d)(6) of the Act, 8 U.S.C. 1158(d)(6), NPRM indicated that it was maintaining addition, the INA does not define the Congress could have expressly provided the prior definition of ‘‘frivolous,’’ term ‘‘frivolous,’’ see INA 208(d)(6), 8 a definition of ‘‘knowingly’’ in the Act. which was premised on a fabricated U.S.C. 1158(d)(6), and the Departments Cf. Perrin v. United States, 444 U.S. 37, ‘‘material’’ element, 85 FR at 36275, but possess the authority to interpret such 42 (1979) (‘‘A fundamental canon of then used the word ‘‘essential’’ in lieu undefined terms. See INA 103(a)(3), statutory construction is that, unless of ‘‘material’’ in the proposed regulatory (g)(2), 8 U.S.C. 1103(a)(3), (g)(2); see also otherwise defined, words will be text itself. Although the Departments do Chevron, 467 U.S. at 866 (‘‘When a interpreted as taking their ordinary, not perceive a relevant difference challenge to an agency construction of contemporary, common meaning.’’) between the two phrasings, they are a statutory provision, fairly (citations omitted). Due to Congress’s reverting to the use of ‘‘material’’ in this conceptualized, really centers on the silence, however, the Departments find context in the final rule to avoid any wisdom of the agency’s policy, rather that the inclusion of willful blindness, confusion. than whether it is a reasonable choice within a gap left open by Congress, the 21 The Departments disagree with commenters’ 22 As 85 percent of asylum applicants in challenge must fail.’’). The Departments concerns that Global-Tech is an inappropriate case immigration proceedings have representation, the believe that the prior regulatory to cite given the complexity of the underlying likelihood of an alien alone knowingly making an dispute. Instead, this case provides a clear and argument that is foreclosed by law is relatively low definition artificially limited the concise summary of the willful blindness standard, as both a factual and legal matter. See EOIR, Current applicability of the frivolous asylum bar which is separate and apart from the underlying Representation Rates (Oct. 13, 2020), https:// because it did not fully address the facts or adjudication. www.justice.gov/eoir/page/file/1062991/download.

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Finally, commenters were particularly as accurate.24 To offer such immunity disincentivizing the filing of meritless concerned about the frivolousness would create moral hazard. It would asylum applications in the first grounds covering claims that lack merit encourage aliens not to read or instance—applications that already take or are foreclosed by existing law. familiarize themselves with the contents up significant immigration court However, commenters’ concerns are not of their applications, thereby subverting resources. based on the actual rule. As explained both the efficiency and accuracy of in the NPRM, an unsuccessful claim asylum adjudications. Moreover, the 3.1.3. Other Concerns With Regulations does not mean that the claim is requirement that a frivolous asylum Regarding Frivolous Applications frivolous. See 85 FR at 36273–77. For application be ‘‘knowingly’’ filed also Comment: Commenters expressed example, arguments to extend, modify, ensures that only genuinely culpable— concern with the rule’s changes to the or reverse existing precedent are not a or co-conspirator—aliens will face the procedural requirements that must be basis for a frivolousness finding under full consequences associated with these satisfied before an immigration judge the ‘‘clearly foreclosed by applicable unethical practices. Cf. United States v. may make a frivolousness finding. For law’’ ground. 85 FR at 36276. Similarly, Phillips, 731 F.3d 649, 656 (7th Cir. example, commenters noted that the as discussed supra, both the relatively 2013) (‘‘It is careless to sign a document rule would allow immigration judges to low numbers of pro se asylum without reading it, but it is a knowing make frivolousness findings without applicants in immigration court adoption of its contents only if the providing an applicant with additional proceedings and the requirement that a signer is playing the ostrich game opportunities to account for perceived frivolous asylum application be (‘willful blindness’), that is, not reading issues with his or her claim. Similarly, ‘‘knowingly’’ filed will likely make it because of what she knows or an organization alleged that immigration frivolousness findings uncommon for suspects is in it.’’). judges would not have to provide an pro se aliens under the ‘‘clearly The Departments disagree that the opportunity for applicants to foreclosed by applicable law’’ ground. changes, including consideration of meaningfully address the frivolousness Moreover, the proposed definition is legal arguments regarding whether an indicators found by an asylum officer. fully consistent with the long-standing asylum application was premised on a Commenters stated that the rule definition of ‘‘frivolous’’ behavior as claim that was foreclosed by existing conflicts with Matter of Y–L–, 24 I&N applied in the context of practitioner law, will increase the workload of Dec. at 155, emphasizing that the NPRM discipline. See 8 CFR 1003.102(j)(1) (‘‘A immigration judges. As an initial point, only requires that applicants be practitioner engages in frivolous immigration judges are already provided notice of the consequences of behavior when he or she knows or accustomed to both making filing a frivolous application. At least reasonably should have known that his frivolousness determinations and to one organization claimed the rule, by or her actions lack an arguable basis in assessing whether claims are foreclosed not requiring immigration judges to first law or in fact, or are taken for an by applicable law; indeed, immigration provide an opportunity to explain, improper purpose, such as to harass or judges are already required to apply assumes that ‘‘applicants know what a precedent in asylum cases, even when to cause unnecessary delay.’’). In other judge would consider ‘meritless’ or a frivolousness finding is not at issue. words, the bases for finding an asylum implausible.’’ The organization Thus, the intersection of those two application frivolous do not limit contested the NPRM’s assertion that an streams of decision making does not ethical attorneys’ conduct in the manner asylum applicant ‘‘already . . . knows represent any additional adjudicatory described by commenters. whether the application is . . . burden. Further, the rule does not As some commenters noted, however, meritless and is aware of the potential mandate that immigration judges make some aliens may hire unscrupulous ramifications,’’ claiming instead that a determination in all cases, and many representatives or notarios who file applicants often lack a sophisticated cases will not factually or legally lend applications for improper purposes. knowledge of immigration law. See 85 themselves to a need to wrestle with While the Departments are sympathetic FR at 36276. to aliens who are victims of these close calls and complex determinations of whether an application was ‘‘clearly Response: As stated in the proposed unethical practices, the Departments rule, the only procedural requirement note that, as described below in Section foreclosed by applicable law’’ due to the rest of the context of the application or Congress included in the Act for a II.C.3.2 of this preamble, aliens must frivolousness finding is the notice sign each asylum application attesting the case. Finally, commenters also failed to consider that the direct inclusion of requirement at section 208(d)(4)(A) of to the application’s accuracy and the Act, 8 U.S.C. 1158(d)(4)(A). 85 FR at acknowledging the consequences of applications that are clearly foreclosed by applicable law as a possible basis for 36276. In addition, the asylum filing a frivolous application; moreover, application itself provides notice that an ‘‘[t]he applicant’s signature establishes a frivolousness findings may cause secondary efficiencies by application may be found frivolous and presumption that the applicant is aware that a frivolousness finding results in of the contents of the application.’’ 8 24 The Departments further note that purposefully significant consequences. Id. The law is CFR 208.3(c)(2), 1208.3(c)(2). An alien filing meritless asylum applications, including for clear on this point. See, e.g., Niang v. may later file a motion to reopen the purposes of causing DHS to initiate removal Holder, 762 F.3d 251, 254–55 (2d Cir. premised on ineffective assistance of proceedings, violates the EOIR rules of professional 2014) (‘‘Because the written warning counsel 23 or pursue other subsequent conduct and constitutes behavior that may result in professional sanctions. See In re Bracamonte, No. provided on the asylum application avenues of redress against unscrupulous D2016–0070 (July 1, 2020), https://www.justice.gov/ alone is adequate to satisfy the notice individuals, but the Departments find eoir/page/file/1292646/download (entering into a requirement under 8 U.S.C. that an alien should not automatically settlement agreement with a practitioner who 1158(d)(4)(A) and because Niang signed be immune from the consequences of an ‘‘acknowledges that it was improper to file asylum applications without an indicated basis for asylum and filed his asylum application asylum application he or she held out or an indication as to any asylum claim, to cancel containing that warning, he received or otherwise advise clients to fail to appear for adequate notice warning him against 23 See Matter of Lozada, 19 I&N Dec. 637 (BIA asylum interviews, and to not demonstrate a clear 1988) (setting out requirements for motions to intention to pursue an asylum claim, in order to filing a frivolous application.’’). Thus, reopen due to ineffective assistance of counsel cause DHS to issue a Notice to Appear to his every alien who signs and files an allegations). clients’’). asylum application has received the

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notice required by section 208(d)(4)(A) suggests should instead be made by the Indeed, as the Departments noted in the of the INA, 8 U.S.C. 1158(d)(4)(A). DHS officials adjudicating EAD NPRM, the prior definition did not Accordingly, commenters are correct requests. adequately capture the full spectrum of that the rule’s changes allow Comment: At least one organization claims that would ordinarily be deemed immigration judges to make alleged that the rule, ‘‘perhaps frivolous, 85 FR at 36274, making frivolousness findings without the recognizing its own harshness,’’ claims statistics based on the prior definition procedural requirements required by the to ‘‘ameliorate the consequences’’ by either misleading or of minimal current regulation and attendant case allowing applicants to withdraw their probative value. law. But the regulation and case law are application(s) before the court with The Departments note the record not required by the Act, and have not prejudice, accept a voluntary departure numbers of asylum applications filed in been successful in preventing the filing order, and leave the country within 30 recent years, including 213,798 in Fiscal of frivolous applications. To the extent days. The organization contended that, Year 2019, up from the then-previous commenters are correct that the rule rather than ameliorating the record of 82,765 in Fiscal Year 2016. conflicts with Matter of Y–L–, that consequences of a frivolous filing, these EOIR, Total Asylum Applications (Oct. decision is premised on the existing measures essentially replicate them in 13, 2020), https://www.justice.gov/eoir/ regulatory language that the severity and permanence. page/file/1106366/download. Given this Departments are revising. Thus, as the Response: Despite commenters’ significant increase in applications— Departments noted in the proposed rule, concerns, the Departments emphasize which almost certainly means an this rule would overrule Matter of Y–L– that this option to avoid the increase in frivolous applications—and and any other cases that rely on the consequences of a frivolousness finding the corresponding increase in same reasoning or now-revised is a new addition to the regulations and adjudications, the Departments believe regulatory language. 85 FR at 36277. provides applicants with a safe harbor it is important to ensure the regulations Comment: At least one organization not previously available. The best reflect congressional intent and expressed its belief that DHS could Departments believe that the conditions deter the submission of frivolous institute frivolousness procedures more are strict but reasonable and fair when applications that delay the adjudication directly related to DHS’s adjudication of compared with the alternative: The of meritorious cases. employment authorization requests severe penalty for filing a frivolous Comment: Another organization (‘‘EADs’’). For example, the commenter application, as recognized by Congress expressed particular concern for noted that there is ‘‘no explanation’’ for at section 208(d)(6) of the Act, 8 U.S.C. children seeking asylum, noting that, why DHS cannot simply conduct a 1158(d)(6). Further, the Departments although the TVPRA requires prima facie review of an I–589 filing disagree that the consequences of unaccompanied children’s claims to be prior to granting an EAD application or withdrawing an application are of the heard by asylum officers, the rule’s scheduling the I–589 interview. The same severity as a frivolousness finding expansion of a ‘‘frivolous’’ claim would organization claimed that, if the concern because an alien who withdraws an result in the denial of meritorious is the time and expense dedicated to application will be able to leave the claims for children who are ‘‘clearly fraudulent’’ applications, DHS United States without a removal order unrepresented and ‘‘unable to decipher could devise a policy to screen for and seek immigration benefits from complex immigration law.’’ The indicators that the application itself abroad, while an alien who is found to organization contended that, because lacks merit or supporting have submitted a frivolous application the rule would permit asylum officers documentation. The organization is ‘‘permanently ineligible for any who determine that a child’s claim is contended that DHS does this with benefits’’ under the Act. INA 208(d)(6), ‘‘frivolous’’ to refer the case to other benefit applications and is not 8 U.S.C. 1158(d)(6). immigration court without examining prohibited from issuing Requests for Comment: One organization the merits of the claim, unaccompanied Evidence or Notices of Intent to Deny to emphasized that, although the NPRM children ‘‘would be forced into affirmative asylum applicants prior to claims that broadening the definition of adversarial proceedings before an an interview. frivolous would root out ‘‘unfounded or immigration judge in clear violation of Response: Although the Departments otherwise abusive claims,’’ the NPRM the TVPRA and in a manner that would appreciate this comment and DHS may does not include any evidence of large subject them to all of the harms evaluate it further as an additional numbers of pending frivolous attendant to adversarial hearings where avenue to protect the integrity of the applications. there is no guarantee of representation.’’ asylum adjudication process, the Response: Congress laid out Similarly, at least one organization Departments find that the changes set consequences for filing a frivolous emphasized that the ‘‘safety valve’’ of out in the proposed rule better align asylum application at section 208(d)(6) allowing children to accept withdrawal with congressional intent and are more of the Act, 8 U.S.C. 1158(d)(6), conditions to avoid the consequences of efficient than a secondary process tied demonstrating the importance of the a frivolousness finding is illusory, and to the adjudication of EADS. Divorcing issue. There is no precise data threshold may pressure children to waive valuable the question of frivolousness from the for a regulation that implements a clear rights. underlying adjudication of the statutory priority. Moreover, Federal Response: Again, the Departments application itself would potentially courts have recognized both the extent note that these concerns generally are undermine Congress’s clear direction of asylum fraud and the fact that the not rooted in any substantive evidence that aliens face consequences for filing Government does not catch all of it. and either mischaracterize or misstate frivolous asylum applications. INA Angov, 788 F.3d at 902 (‘‘Cases the proposed rule. The Departments 208(d)(6), 8 U.S.C. 1158(d)(6). Moreover, involving fraudulent asylum claims are find the safeguards in place for allowing asylum officers and immigration judges, distressingly common.... And for asylum officers to make a finding that the officials in the asylum system who every case where the fraud is discovered an asylum application is frivolous are are trained to review and adjudicate or admitted, there are doubtless scores sufficient to protect unaccompanied applications for asylum, are best of others where the petitioner gets away alien children (‘‘UAC’’) in the positioned to make the sorts of with it because our government didn’t application process. Even if an asylum determinations that the commenter have the resources to expose the lie.’’). officer finds an application is frivolous,

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the application is referred to an discussion of the rule’s retroactive IIRIRA. See 85 FR at 36277 n.26 (noting immigration judge who provides review applicability, see Section II.C.7 of this statements in H.R. Rep. No. 104–469, of the determination. The asylum preamble. part 1 (1996) regarding balancing the officer’s determination does not render need for the alien to provide sufficient 3.2. Pretermission of Legally Insufficient the applicant permanently ineligible for information on the application with the Applications immigration benefits unless the need for the alien’s application to be immigration judge or the BIA also make 3.2.1. Pretermission and the INA timely). Commenters stated that the rule a finding of frivolousness. Id. Further, Comment: Commenters stated that creates additional burdens for aliens asylum officers and immigration judges allowing immigration judges to with regard to submission and continue to use child-appropriate pretermit applications conflicts with preparation of the Form I–589. Response: Allowing pretermission of procedures taking into account age, multiple sections of the INA and is not asylum applications in the manner set stage of language development, a ‘‘reasonable’’ interpretation of the out in this rule does not violate the INA. background, and level of INA. 25 As an initial point, the regulations have sophistication. Finally, to be found Commenters cited section 208(a)(1) of long allowed immigration judges to frivolous, an application must be the Act, 8 U.S.C. 1158(a)(1), alleging pretermit asylum applications when knowingly filed as such, and the that the phrase ‘‘may apply for asylum’’ certain grounds for denial exist. See 8 Departments anticipate that very young should be broadly construed. CFR 1240.11(c)(3).27 Additionally, UACs will typically not have the Commenters also noted that the statute courts have affirmed the pretermission requisite mental state to warrant a requires the establishment of a of legally deficient asylum applications. frivolousness finding. procedure for considering asylum Comment: At least one commenter See, e.g., Zhu v. Gonzales, 218 F. App’x applications. INA 208(d)(1), 8 U.S.C. appeared to express concern that the 21, 23 (2d Cir. 2007) (‘‘Here, the IJ 1158(d)(1). Commenters claimed that rule includes all applications submitted alerted Zhu early in the proceedings after April 1, 1997, as those which could allowing for the pretermission of asylum that his asylum claim might be potentially be deemed frivolous. applications does not satisfy this pretermitted if he failed to illustrate a Response: To the extent the required procedure and is an nexus to a protected ground, and commenter is concerned about frivolous ‘‘unreasonable interpretation’’ of the granted him a 30-day continuance in applications in general dating back to statute. which to submit a brief addressing the April 1, 1997, the Departments note that Commenters stated that the rule nexus requirement. When Zhu had DOJ first implemented regulations violates section 240(b)(1) of the Act, 8 neither submitted a brief, nor requested regarding frivolous asylum applications U.S.C. 1229a(b)(1), which states that an extension of the deadline, after on March 6, 1997, effective April 1, ‘‘[t]he immigration judge shall nearly 60 days, the IJ acted within his 1997. Inspection and Expedited administer oaths, receive evidence, and discretion in pretermitting the asylum Removal of Aliens; Detention and interrogate, examine, and cross-examine claim.’’). As discussed further below, Removal of Aliens; Conduct of Removal the alien and any witnesses.’’ the pretermission of legally deficient Proceedings; Asylum Procedures, 62 FR Commenters stated that the rule violates asylum applications is consistent with 10312, 10344 (Mar. 6, 1997). The April this requirement by ‘‘requiring existing law, and immigration judges 1, 1997 effective date was enacted by immigration judges to abandon their already possess authority to take any Congress in 1996 through IIRIRA. See essential function of examining the action consistent with their authorities IIRIRA, Public Law 104–208, sec. 604(a), noncitizen about their application for under the law that is appropriate and 110 Stat. 3009, 3009–693. Thus, all relief.’’ necessary for the disposition of cases, 8 asylum applications filed on or after Similarly, commenters stated that the CFR 1003.10(b), to generally take any April 1, 1997, have been subject to a rule violates section 240(b)(4)(B) of the appropriate action consistent with potential penalty for frivolousness for Act, 8 U.S.C. 1229a(b)(4)(B), which applicable law and regulations, id. many years. states that ‘‘the alien shall have a 1240.1(a)(1)(iv), and to regulate the The NPRM made clear, however, that reasonable opportunity to examine the course of a hearing, id. 1240.1(c). the new regulatory definition of evidence against the alien, to present Accordingly, the authority of an frivolous applies only to applications evidence on the alien’s own behalf, and immigration judge to pretermit an filed 26 on or after the effective date of to cross-examine witnesses presented by asylum application is well-established the final rule. To provide further the Government.’’ Commenters believe even prior to the proposed rule.28 clarification on this point, the the rule violates this provision because Departments made several non- it denies aliens the ability to present 27 The text of 8 CFR 1240.11(c)(3) references, inter substantive edits to the regulatory text at and examine evidence on their own alia, the mandatory denial of an asylum application 8 CFR 208.20 and 8 CFR 1208.20 in the behalf, including their own credible pursuant to 8 CFR 1208.14. In turn, 8 CFR 1208.14(a) references 8 CFR 1208.13(c), which lists final rule to clarify the temporal testimony. the specific grounds for the mandatory denial of an applicability of the existing definition of Finally, commenters stated that the asylum application, including those listed in INA frivolousness and the prospective rule violates section 240(c)(4) of the Act, 208(a)(2) and (b)(2) (8 U.S.C. 1158(a)(2) and (b)(2)). 8 U.S.C. 1229a(c)(4), which states that, Some of those grounds may require a hearing to application of the definition contained address disputed factual issues, but some involve in the rule. Thus, the commenters inter alia, ‘‘the immigration judge shall purely legal questions—e.g. INA 208(b)(2)(A)(ii) and apparent retroactivity concerns about weigh the credible testimony along with (B)(i) (8 U.S.C. 1158(b)(2)(A)(ii) and (B)(i)) (an alien the definition of a frivolous application other evidence of record’’ when convicted of an aggravated felony is ineligible for determining whether an alien has met asylum)—and, thus, may be pretermitted without a have been addressed. For further hearing. his or her burden of proof on an 28 The National Association of Immigration 25 For further discussion of the intersection of the application for relief. INA 240(c)(4)(B), Judges (‘‘NAIJ’’), the union which formerly rule and the TVPRA, see section II.C.6.10. 8 U.S.C. 1229a(c)(4)(B). represented non-supervisory immigration judges, 26 This includes applications filed in connection Commenters also disagreed with the opposed the rule on general grounds but did not with a motion to reopen on or after the effective take a position on this specific provision. A. Ashley date of the rule or applications filed on or after the Departments that allowing Tabadorr, Comment by the National Association of effective date of the rule after proceedings have pretermission of applications would not Immigration Judges, (July 15, 2020), https:// been reopened or recalendared. conflict with the legislative history of www.naij-usa.org/images/uploads/newsroom/

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Further, regarding sections 208(a)(1) the Act, 8 U.S.C. 1229a(b)(4)(B) and 3.2.2. Pretermission and the Regulations and 208(d)(1) of the Act, 8 U.S.C. (c)(4). Comment: Commenters stated that 1158(a)(1) and (d)(1), nothing in the rule Regarding the legislative history of allowing pretermission of applications regarding the pretermission of IIRIRA, the Departments find that in the manner set out in the proposed applications affects the ability of aliens allowing pretermission in the manner rule violates the other regulatory to apply for asylum, and this rule adds set out in the proposed rule and this provisions, including 8 CFR 1240.1(c), 8 to the already robust procedures in final rule does not conflict with the CFR 1240.11(c)(3), and 8 CFR place for the consideration and legislative history of IIRIRA. First, 1240.11(c)(3)(iii). Regarding 8 CFR adjudication of applications for asylum. regarding the statement in the House 1240.1(c) (‘‘The immigration judge shall Instead, pretermission establishes an receive and consider material and efficiency for the adjudication of report cited in the proposed rule, the Departments note that at that point, the relevant evidence....’’), commenters applications for asylum that have been noted that pretermission would submitted for consideration and is House legislation would have imposed a 30-day filing deadline for asylum foreclose consideration of an asylum utilized in a similar fashion as summary seeker’s testimony, which is often one of decision is used in other DOJ applications. See H.R. Rep. No. 104– the most important pieces of evidence, immigration-related proceedings, see 28 469, pt. 1, at 259 (1996). Accordingly, as well as witness testimony. Regarding CFR 68.38, and as summary judgment is the Departments find that congressional 8 CFR 1240.11(c)(3) (‘‘Applications for used in Federal court proceedings, see statements suggesting lower asylum and withholding of removal so Fed. R. Civ. P. 56. requirements for specificity in an Similarly, pretermission of asylum asylum application were based on a filed will be decided by the immigration applications in the manner set out in concomitant suggestion that an judge . . . after an evidentiary hearing this rule does not violate any provision application should be filed within 30 to resolve factual issues in dispute.’’), of section 240 of the Act, 8 U.S.C. days and were correspondingly obviated commenters emphasized the 1229a. First, section 240(b)(1) of the Act, by the longer one-year filing deadline regulation’s requirement that an 8 U.S.C. 1229a(b)(1), authorizes ultimately enacted by IIRIRA. INA immigration judge’s decision be made ‘‘after an evidentiary hearing’’ and noted immigration judges to ‘‘interrogate, 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). that the factual and legal issues in an examine, and cross-examine the alien Second, there is no discussion in the asylum claim are often interconnected. and any witnesses’’ but does not IIRIRA conference report that similarly Regarding 8 CFR 1240.11(c)(3)(iii) establish a mandatory requirement for encourages a condensed application for (‘‘During the removal hearing, the alien them to do so in every case on every the sake of expediency. See generally shall be examined under oath on his or application or issue. Further, it is settled H.R. Rep. No. 104–828 (1996) her application and may present law that immigration judges may (conference report). Finally, the evidence and witnesses in his or her pretermit applications for relief in other Departments reiterate that, as stated in own behalf’’), commenters stated that contexts. See, e.g., Matter of J–G–P–, 27 the proposed rule, the alien would only I&N Dec. 642, 643 (BIA 2019) pretermission would deprive the alien be expected to provide ‘‘enough of the opportunity to meet his or her (explaining that the immigration judge information to determine the basis of granted DHS’s motion and pretermitted burden of proof through testimony, the alien’s claim for relief and if such a which may be sufficient for the alien to the respondent’s application for claim could be sufficient to demonstrate cancellation of removal due to the sustain the burden of proof without eligibility.’’ 85 FR at 36277 n.26. Indeed, corroboration. respondent’s disqualifying criminal the Departments expect that aliens who conviction); Matter of Moreno-Escobosa, Commenters stated that allowing complete the Form I–589, Application pretermission would make into 25 I&N Dec. 114 (BIA 2009) (reviewing for Asylum and for Withholding of questions of eligibility for a waiver of surplusage the provisions of the Removal, in accordance with the regulations regarding the authority of inadmissibility under former section instructions and provide all information 212(c) of the Act (8 U.S.C. 1182(c) the immigration judge to consider requested by the form would provide (1994)) following an immigration evidence (8 CFR 1240.11(c) and control sufficient information for the prima judge’s pretermission of the the scope of the hearing (c)(3)(ii)). facie determination, just as it does in the respondent’s application). Second, the Response: Allowing pretermission of context of a motion to reopen. See INS rule allows the applicant a ‘‘reasonable asylum applications that fail to v. Abudu, 485 U.S. 94, 104 (1988) opportunity’’ to present evidence on his demonstrate a prima facie claim for or her own behalf before pretermission (‘‘There are at least three independent relief or protection in the manner set out as an immigration judge would not grounds on which the BIA may deny a in the proposed rule and this final rule pretermit an application without either motion to reopen. First, it may hold that does not violate other provisions of the the time expiring for the alien to the movant has not established a prima Departments’ regulations. As stated in respond to DHS’s motion or the judge’s facie case for the underlying substantive the proposed rule, ‘‘[n]o existing notice. Similarly, the alien would be relief sought.’’) Further, an alien would regulation requires a hearing when an afforded the opportunity to present be able to provide additional asylum application is legally deficient.’’ evidence, including written testimony, information as desired in response to 85 FR at 36277. Commenters’ arguments on their own behalf prior to an the DHS motion or immigration judge to the contrary misconstrue the immigration judge’s decision to notice regarding possible pretermission. regulatory framework. The Departments pretermit an application, in accordance In short, a requisite prima facie showing agree that an alien’s testimony may be with section 240(b)(4)(B) and (c)(4) of for an asylum application is not an important evidence for a case. See, e.g., onerous burden, and the Departments Matter of Mogharrabi, 19 I&N Dec. 439, 2020.07.15.00.pdf (‘‘NAIJ’s comment to the disagree with the commenter that 445 (BIA 1987) (‘‘The alien’s own proposed rulemaking takes no position on what the allowing pretermission presents any testimony may in some cases be the law should be or how it is to be interpreted.’’). additional mandatory burden on the only evidence available, and it can Nevertheless, individual immigration judges have, alien beyond that which is already suffice where the testimony is on occasion, pretermitted legally-deficient asylum applications even prior to the issuance of the required by the asylum application believable, consistent, and sufficiently proposed rule. itself. detailed to provide a plausible and

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coherent account of the basis for his 3.2.3. Pretermission and BIA Case Law has determined that such a denial is fear.’’).29 But in cases where it is clear required.’’). from the fundamental bases of the Comment: Commenters stated that The procedures at 8 CFR part 208 at alien’s claim that the claim is legally allowing immigration judges to issue in Matter of Fefe were first deficient and the alien will not be able pretermit and deny asylum applications amended in 1990. Aliens and to meet his or her burden of proof, violates Matter of Fefe, 20 I&N Dec. 116 Nationality; Asylum and Withholding of regardless of the additional detail or (BIA 1989), and Matter of Ruiz, 20 I&N Deportation Procedures, 55 FR 30674 specificity that the alien’s testimony Dec. 91 (BIA 1989). Commenters (July 27, 1990) (final rule); Aliens and disagreed with the Departments’ may provide, such testimony is not Nationality; Asylum and Withholding of distinguishing Matter of Fefe in the material or relevant and is not needed Deportation Procedures, 53 FR 11300 proposed rule by noting that the (Apr. 6, 1988) (proposed rule). At that for the judge to be able to make a underlying regulations interpreted by time, the Department clearly indicated determination that the application is the BIA in Matter of Fefe are no longer that the purpose of the amendments 31 legally insufficient.30 in effect. See 85 FR at 36277. Instead, was to allow immigration judges and the Further, the rule does not conflict commenters stated that both the BIA BIA greater flexibility to ‘‘limit the with the specific regulatory sections and the Federal courts have noted that scope of evidentiary hearings . . . to cited by the commenters. To the the current regulations at 8 CFR 1240.11 matters that are dispositive of the contrary, as discussed, supra, the rule is are substantially similar to the application for relief.’’ 53 FR at 11301. fully consistent with an immigration regulations at issue in Matter of Fefe. The Department of Justice explained judge’s existing authority to take any See Matter of E–F–H–L–, 26 I&N Dec. that, ‘‘[i]f it is apparent upon the record action consistent with their authorities 319, 323 (BIA 2014) (noting that the developed during a proceeding that the under the law that is appropriate and current regulatory ‘‘language does not alien is clearly ineligible for asylum or necessary for the disposition of cases, 8 differ in any material respect from that withholding of deportation, the CFR 1003.10(b), to generally take any in the prior regulations’’), vacated by 27 Immigration Judge will be permitted to appropriate action consistent with I&N Dec. 226, 226 (A.G. 2018); Oshodi forego a further evidentiary hearing on applicable law and regulations, id. v. Holder, 729 F.3d 883, 898 (9th Cir. questions extraneous to the decision, 1240.1(a)(1)(iv), and to regulate the 2013) (‘‘We reaffirm our holding, and thus avoiding unnecessary and time course of a hearing, id. 1240.1(c). the BIA’s own rule, that an applicant’s consuming factual hearings on Further, the rule does not affect the oral testimony is ‘an essential aspect of nondispositive issues.’’ Id. instruction at 8 CFR 1240.1(c) for the asylum adjudication process’ and Despite the BIA’s statements opining immigration judges to consider material the refusal to hear that testimony is a on the similarity of 8 CFR 1240.11(c) and relevant evidence. If a case presents violation of due process.’’) (citing Matter and 8 CFR 236.3 and 242.17 (1988)— which, as stated elsewhere have been a prima facie claim, the case will of Fefe, 20 I&N Dec. at 118). vacated by the Attorney General—the proceed through the adjudicatory Response: As stated in the proposed Departments find that there are clear process consistent with current practice, rule, the Departments find that procedural differences between a including the submission and intervening changes to the regulations general requirement to conduct a consideration of whatever material and since its publication and the Attorney hearing and regulations that establish relevant evidence is included in the General’s vacatur of Matter of E–F–H–L– clear exceptions to a hearing record. Similarly, in that adjudication, have superseded the BIA’s holding in requirement. In short, the Board’s the alien would be examined and Matter of Fefe. 85 FR at 36277. The decisions in Matter of Fefe and Matter allowed to present evidence and BIA’s statement in Matter of E–F–H–L– of E–F–H–L–, in light of subsequent legal witnesses, consistent with 8 CFR that the current regulations ‘‘do not developments, simply do not stand for 1240.11(c)(3)(iii). Finally, those differ in any material respect’’ from the propositions advanced by some applications that present a prima facie those in effect in 1989 was simply not commenters. See Ramirez v. Sessions, claim will proceed to an evidentiary accurate, and the Departments find that 902 F.3d 764, 771 n.1 (8th Cir. 2018) hearing to resolve those factual and the regulations today create a (‘‘The current relevance of [Matter of legal issues presented by the alien’s substantively different framework for Fefe and Matter of E–F–H–L–] is claim. See 8 CFR 1240.11(c)(3). adjudications than the regulations in questionable. The regulations applied in Accordingly, pretermission works to 1989. Notably, the earlier regulations Matter of Fefe were later rescinded and supplement the existing regulations; it contained a general requirement that all replaced. Further, Matter of E–F–H–L–, does not conflict with them, nor does it applicants be examined in person by an which reaffirmed Matter of Fefe, was render them surplusage. immigration judge or asylum officer vacated [by the Attorney General] after prior to the application’s adjudication. 8 the petitioner withdrew his 29 Nevertheless, despite commenters’ statements, CFR 208.6 (1988). Today, however, the application.’’). the Departments emphasize that while an alien’s regulations provide direct examples of testimony may be sufficient to meet his or her times when no hearing on an asylum 31 The amended regulatory provisions at 8 CFR burden of proof on its own, such testimony must application is required: If no factual 236.3, which regarded exclusion proceedings, and be ‘‘credible,’’ ‘‘persuasive,’’ and refer to sufficient issues are in dispute and once the 8 CFR 242.17, which regarded deportation specific facts.’’ INA 240(c)(4)(B) (8 U.S.C. proceedings, are the precursors to current 1229(c)(4)(B)). Otherwise, the immigration judge immigration judge has determined that regulatory sections 8 CFR 1240.33 and 8 CFR may determine that the alien should provide the application must be denied pursuant 1240.49. Cf. Inspection and Expedited Removal of corroborative evidence unless the alien can to the mandatory criteria in 8 CFR Aliens; Detention and Removal of Aliens; Conduct demonstrate that he or she does not have and 1208.14 or 1208.16. See 8 CFR of Removal Proceedings; Asylum Procedures, 62 FR cannot reasonably obtain the evidence. Id.; see also 444, 450 (Jan. 3, 1997) (discussing the relocation of Matter of E–P–, 21 I&N Dec. 860, 862 (BIA 1997) (a 1240.11(c)(3) (‘‘An evidentiary hearing ‘‘old regulations which are still applicable to finding of credible testimony is not dispositive as extending beyond issues related to the proceedings commenced prior to April 1, 1997 . . . to whether asylum should be granted). basis for a mandatory denial of the to new parts of the regulations as separate 30 The Departments also note that an alien may application pursuant to § 1208.14 or subtopics’’). Current 8 CFR 1240.11(c)(3) in turn proffer written testimony as part of his or her follows this approach for the consideration of response to either the DHS motion or judge’s notice § 1208.16 of this chapter is not asylum applications during removal proceedings regarding pretermission. necessary once the immigration judge under section 240 of the Act (8 U.S.C. 1229a).

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Further, even if the regulation 242 (4th Cir. 2020) (holding that there ed. 2019); cf. Tilija v. Att’y Gen., 930 conflicted with a prior interpretation by was a due process violation where the F.3d 165, 171 (3d Cir. 2019) (‘‘To the BIA, the Attorney General, immigration judge deprived an asylum establish a prima facie claim, the consistent with his authority to interpret applicant of the opportunity to testify movant ‘must produce objective the INA, may still issue the rule. INA on remand). Commenters emphasized a evidence that, when considered together 103(g), 8 U.S.C. 1103(g). The quote from the chair of the American with the evidence of record, shows a Departments are not bound by prior Immigration Lawyers Association’s reasonable likelihood that he is entitled judicial interpretations of the asylum committee stating that ‘‘the to [asylum] relief.’’’ (citation omitted)). Departments’ own regulations, as such pretermission authority was the most Further, the rule ensures the alien has interpretations are not interpretations of striking attack on due process in the an opportunity to respond to either the the INA’s statutory requirements. proposal,’’ and noting that some DHS motion or the judge’s notice Matter of Ruiz, is also distinguishable. immigration judges already have denial regarding pretermission and provide the There, the BIA held that an immigration rates of 90 percent or higher. court with additional argument or judge could not require an alien who Response: The commenters appear to evidence, including proffered written sought to reopen proceedings conducted misconstrue both the nature of the rule testimony, in support of the alien’s in absentia to demonstrate a prima facie and the difference between issues of fact application. eligibility for asylum in conjunction and issues of law. None of the examples Comment: Commenters emphasized with the motion to reopen. Matter of provided by commenters involved that asylum seekers are vulnerable and Ruiz, 20 I&N Dec. at 93. Instead, the BIA situations in which an immigration often unrepresented and noted the low held that the alien must demonstrate a judge pretermitted an application as rates of representation for aliens in the ‘‘reasonable cause for his failure to legally deficient; rather, they involve Migrant Protection Protocols (‘‘MPP’’) in appear.’’ Id. But the change in the rule situations in which an immigration particular. Because many asylum here—which allows immigration judges judge initially allowed testimony but seekers do not speak English, it is often to pretermit and deny asylum then cut-off questioning—or, in one difficult for them to navigate the applications that fail to demonstrate a case, disallowed testimony altogether— complexities of the immigration system. prima facie claim for relief or following a remand. In other words, the Commenters specifically noted that it is protection—has no connection to what posture of the examples cited by hard for detained, unrepresented aliens must demonstrate in order to commenters is one in which an alien individuals to complete asylum reopen a hearing conducted in absentia. had already demonstrated a prima facie applications because they are often The in absentia requirements are case, making those examples inapposite required to use ‘‘unofficial translators’’ separately set out by the Act and to the rule. Commenters did not provide with whom they are not comfortable regulations. See INA 240(b)(5)(C)(i)–(ii), any examples where a properly sharing personal information. 8 U.S.C. 1229a(b)(5)(C)(i)–(ii) (providing supported legal pretermission—by Commenters stated that the immigration conditions for rescinding an in absentia itself—was found to be a due process judge’s consideration of an alien’s removal order based on a motion to violation, nor did commenters explain response to the judge’s notice or DHS reopen); 8 CFR 1003.23(b)(4)(ii). There how analogous summary-decision or motion regarding pretermission does not is no separate requirement to summary-judgment provisions in other alleviate the commenters’ concerns. demonstrate further eligibility for any contexts—e.g. 28 CFR 68.38 or Fed. R. Commenters argued that the same application for relief, consistent with Civ. P. 56—remain legally valid even language barriers and other Matter of Ruiz. Further, the equivalent though they, too, curtail an individual’s vulnerabilities would apply to both the statutory right to former section 236(a) ability to testify or introduce evidence response and the underlying Form I–589 of the Act, 8 U.S.C. 1226(a), which was in proceedings. In short, the application; thus, they contend, a at issue in Matter of Ruiz, is the alien’s commenters’ concerns appear response alone does not provide a rights in a proceeding under section unconnected to the actual text of the ‘‘meaningful opportunity’’ to address 240(b)(4) of the Act, 8 U.S.C. 1229(b)(4), rule and the applicable law. misunderstandings or fully engage with which, as discussed above, are not The Departments disagree that the judge or DHS. violated by allowing an immigration allowing immigration judges to Response: As an initial point, the judge to pretermit and deny pretermit and deny asylum applications commenters’ assertion of a low rate of applications that fail to demonstrate a that do not show a prima facie claim for representation is inaccurate. The prima facie claim for relief or relief would violate applicants’ due Departments note that a large majority protection. process rights. The essence of due (85 percent at the end of FY2020) of process is notice and an opportunity to those asylum seekers who are in 3.2.4. Additional Concerns Regarding be heard. See LaChance, 522 U.S. at proceedings before DOJ—and who, in Pretermission 266. Nothing in the rule eliminates turn, could have an immigration judge Comment: Multiple commenters notice of charges of removability against pretermit their asylum applications—are expressed concern that the rule would an alien, INA 239(a)(1), 8 U.S.C. represented in proceedings. EOIR, allow immigration judges to dismiss 1229(a)(1), or the opportunity for the Adjudication Statistics: Representation asylum claims without a hearing, alien to make his or her case to an Rates (Oct. 13, 2020), https:// denying applicants the opportunity to immigration judge, INA 240(a)(1), 8 www.justice.gov/eoir/page/file/1062991/ appear in court and offer testimony. U.S.C. 1229a(a)(1), or on appeal, 8 CFR download. Second, while the Commenters emphasized that the rule is 1003.38. Departments agree with commenters ‘‘extremely problematic’’ from a due In addition, the rule would not that many asylum seekers’ first or process perspective and violates aliens’ require or expect aliens to meet their preferred language is a language other Fifth Amendment due process rights. In ultimate burden of proof to avoid than English, the Departments find that support, commenters cited to case law pretermission; instead, the alien must it is reasonable to expect aliens to discussing the right to testify and only (per one common definition of utilize translators or other resources in finding due process violations when ‘‘prima facie’’) ‘‘establish a fact or raise order to complete the Form I–589 that right is curtailed or limited. See, a presumption, unless disproved or application in accordance with the e.g., Atemnkeng v. Barr, 948 F.3d 231, rebutted.’’ Black’s Law Dictionary (11th regulations and instructions, which

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require that the form be completed in response to the motion and may solicit aliens that may qualify for such English. See 8 CFR 208.3(a), 1208.3(a) additional information, if needed, for protection. Instead, it simply provides (noting that an applicant must file an I– review. an efficiency for the adjudication of 589 ‘‘in accordance with the Comment: Commenters stated that those claims that do not demonstrate a instructions on the form’’); Form I–589, pretermission conflicts with baseline prima facie eligibility for relief. Application for Asylum and for adjudication guidance in UNHCR’s Comment: Commenters emphasized Withholding of Removal, Instructions, 5 Handbook on Procedures and Criteria that the rule forces the entire eligibility (Sept. 10, 2019), https://www.uscis.gov/ for Determining Refugee Status, which decision to be based on the Form I–589 sites/default/files/document/forms/i- provides that, ‘‘while the burden of and supporting documents, noting that 589instr.pdf (‘‘Your answers must be proof in principle rests on the applicant, this could be problematic if the completed in English.’’). Moreover, the duty to ascertain and evaluate all the applicant does not initially possess all existing regulations already require that relevant facts is shared between the of the necessary documentation. foreign-language submissions be applicant and the examiner. Indeed, in Commenters also claimed that translated into English, see 8 CFR some cases, it may be for the examiner pretermitting an application while the 103.2(b)(3), 1003.33, so it is unclear how to use all the means at his disposal to individual is still working to gather a non-English-speaking alien could produce the necessary evidence in paperwork would be ‘‘grossly unfair’’ submit evidence without a translator in support of the application.’’ UNHCR, and contended that, if the rule is any case. Handbook On Procedures and Criteria adopted, it must provide a ‘‘working The Departments thus disagree that for Determining Refugee Status, ¶ 196 period’’ after submission during which aliens would be unable to answer the (1979) (reissued Feb. 2019), https:// an application cannot be pretermitted. questions on the Form I–589 with www.unhcr.org/en-us/publications/ Commenters also noted that enough specificity to make a prima facie legal/5ddfcdc47/handbook-procedures- unrepresented individuals may have claim for relief or protection. The criteria-determining-refugee-status- their applications terminated prior to Departments further note that aliens under-1951-convention.html. As a finding representation who could help whose applications are deficient will be result, commenters stated that allowing them supplement an application that able to provide additional argument or immigration judges to pretermit and was originally lacking or insufficient. evidence in response to either DHS’s deny applications that do not Other commenters noted that there motion to pretermit or the judge’s sua demonstrate a prima facie claim does are many cases that initially appear to sponte notice. See 8 CFR 1208.13(e) (as not meet the United States’ international lack eligibility but later qualify for amended). Despite commenters’ obligations and does not align with asylum after testimony is taken and concerns that this process is congressional intent to follow the additional facts are uncovered. insufficient, this is the same process Refugee Convention. Commenters referenced Matter of Fefe, that is regularly used in immigration Response: Commenters’ reliance on 20 I&N Dec. 116, and Matter of court, including other times when an guidance from UNHCR is misguided. Mogharrabi, 19 I&N Dec. 443, noting alien’s ability to seek a particular form UNHCR’s interpretations of (or that there are often discrepancies of relief may be foreclosed by DHS filing recommendations regarding) the between the written and oral statements a motion to pretermit. 85 FR at 36277. Refugee Convention and Protocol, in an asylum application that can only Comment: Commenters stated that including the UNHCR Handbook, are be resolved through direct examination. allowing immigration judges to ‘‘not binding on the Attorney General, Response: Commenters again appear pretermit applications would violate the the BIA, or United States courts.’’ INS to misstate the rule, to misunderstand duty of the immigration judge under the v. Aguirre-Aguirre, 526 U.S. 415, 427 the difference between issues of fact and Act and the regulations to develop the (1999). ‘‘Indeed, the Handbook itself issues of law, and to misunderstand the record, particularly for cases where the disclaims such force, explaining that difference between a prima facie legal alien appears pro se and for cases ‘the determination of refugee status showing and a full consideration of the involving UACs. See, e.g., Jacinto v. under the 1951 Convention and the merits of a case. The rule requires I.N.S., 208 F.3d 725, 734 (9th Cir. 2000) 1967 Protocol . . . is incumbent upon simply a prima facie case for relief; it (‘‘[U]nder the statute and regulations the Contracting State in whose territory does not require that every factual previously cited, and for the reasons we the refugee finds himself.’ ’’ Id. at 427– assertion be supported by additional have stated here, immigration judges are 28 (citation and internal quotations corroborative evidence. If the alien’s obligated to fully develop the record in omitted). Further, to the extent such application for relief states sufficient those circumstances where applicants guidance ‘‘may be a useful interpretative facts that could support his or her claim appear without counsel....’’). aid,’’ id. at 427, it would apply only to Response: Allowing immigration statutory withholding of removal, which for relief or protection, the immigration judges to pretermit and deny asylum is the protection that implements judge would not pretermit the applications that do not demonstrate a Article 33 of the Convention. Cf. R–S– application solely because some prima facie claim for relief or protection additional documentation is still being C v. Sessions, 869 F.3d 1176, 1188, n.11 32 does not violate the immigration judge’s (10th Cir. 2017) (explaining that ‘‘the gathered. Accordingly, the responsibility to develop the record. Refugee Convention’s non-refoulement 32 Many commenters raised this issue specifically Instead, the rule comports with this principle—which prohibits the for particular social group asylum claims, noting duty by requiring immigration judges to deportation of aliens to countries where the fact-intensive nature of the social distinction provide notice and an opportunity to the alien will experience persecution— element—i.e., that it be recognized by the society respond before pretermitting any is given full effect by the Attorney in question—required for such groups. See S.E.R.L., 894 F.3d at 556 (‘‘And that must naturally be so, application. Such notice should provide General’s withholding-only rule’’). And once it is given that social distinction involves the parties with information regarding although the rule would allow proof of societal views. What those views are and the judge’s concerns, and should elicit pretermission of Form I–589 how they may differ from one society to another are relevant information in response. applications submitted for withholding questions of fact’’). The Departments recognize that situations in which particular social group asylum Similarly, in the context of DHS of removal or CAT protection, such claims may be pretermitted due to a failure to make motions to pretermit, the immigration pretermission does not necessarily a prima facie showing of the social distinction judge would consider the alien’s constrict or limit the population of element are likely to be rare. Nevertheless, the

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Departments disagree that a minimum Management and Docketing Practices, 2 protection component of the Fifth ‘‘working period’’ before which an n.1 (Jan. 31, 2020), https:// Amendment’s Due Process Clause application may not be pretermitted is www.justice.gov/eoir/page/file/1242501/ because unrepresented aliens will be needed. download. Moreover, many non- more likely to have asylum applications Regarding applications that at first detained hearings continue to be pretermitted than similarly situated appear insufficient but are later postponed due to COVID–19 rendering represented aliens. First, commenters’ bolstered through additional deadlines largely malleable until concerns that the rule will have a information, the Departments again hearings resume. disparate impact are speculative. emphasize that the rule provides the Comment: Commenters alleged that Second, similar procedures in other alien with the opportunity to respond to the rule would result in a higher rate of civil proceedings—such as the summary either the DHS motion or the judge’s pretermission for unrepresented decision procedures of 28 CFR 68.38 or notice regarding pretermission. The individuals because these applicants summary judgment under the Federal Departments expect that such a would be unfamiliar with the ‘‘magic Rules of Civil Procedure—do not violate response would be used to provide language’’ needed to survive a motion to the Fifth Amendment. Third, even if the additional information, which the pretermit. As a result, commenters commenters were correct that the rule immigration judge would consider prior claimed that the rule violates the Fifth has a discriminatory impact, the to making any final determination and Sixth Amendments, and Departments find it would not violate regarding pretermission. Moreover, in concurrently violates section the Fifth Amendment’s equal protection both Matter of Fefe and Matter of 240(b)(4)(A) and (B) of the Act, 8 U.S.C. guarantee because the rule does not Mogharrabi, there was no question 1229a(b)(4)(A) and (B).33 involve a suspect classification or about whether the alien had stated a Response: Commenters are incorrect burden any fundamental right. See prima facie claim. In the former, the that the rule violates an alien’s right to Heller v. Doe, 509 U.S. 312, 319 (1993) immigration judge raised doubts over counsel under section 240(b)(4)(A) of (holding that ‘‘a classification neither the alien’s credibility—not over the the Act, 8 U.S.C. 1229a(b)(4)(A), and the involving fundamental rights nor legal basis of the claim—that were not Sixth Amendment. First, section proceeding along suspect lines is resolved because the alien did not 240(b)(4)(A) of the Act, 8 U.S.C. accorded a strong presumption of testify. In the latter, the Departments see 1229a(b)(4)(A), provides that aliens validity’’). no indication that the alien could not ‘‘shall have the privilege of being Allowing the pretermission of have stated a prima facie claim. represented, at no expense to the applications would enhance judicial Finally, an immigration judge may government, by counsel of the alien’s efficiency by no longer requiring a full only pretermit an application that is choosing who is authorized to practice hearing for applications that are legally legally deficient. Thus, the gathering of in such proceedings.’’ No provision of deficient on their face. There continue additional facts that do not bear on the this rule would limit an alien’s ability to be record numbers of both pending legal cognizability of the claim—for to obtain representation as provided by cases before EOIR 35 and asylum example, gathering the specific names of the INA. Second, the Sixth Amendment applications 36 filed annually. every speaker at a political rally—is not right to counsel does not apply in Accordingly, the Departments seek to required by the rule to avoid immigration proceedings, which are most efficiently allocate EOIR’s limited pretermission. civil, not criminal, proceedings. See, adjudicatory capacity in order to decide Comment: Commenters also criticized e.g., Tawadrus v. Ashcroft, 364 F.3d cases in a timely manner, including 34 the 10-day notice period, claiming it is 1099, 1103 (9th Cir. 2004). granting relief to aliens with meritorious ‘‘unreasonably short,’’ especially Commenters are similarly incorrect cases as soon as possible. Accordingly, considering the COVID–19 pandemic. that the rule violates the equal there is at least a rational basis for Response: The 10-day period is allowing pretermission of asylum consistent with current EOIR practice, 33 Commenters did not provide further explanation regarding how the rule allegedly applications in this manner. Cf. where it has worked well. See EOIR, violates section 240(b)(4)(B) of the Act (8 U.S.C. DeSousa v. Reno, 190 F.3d 175, 184 (3d Immigration Court Practice Manual at 1229a(b)(4)(B)), which provides that: The alien shall Cir. 1995) (‘‘[D]isparate treatment of D–1 (July 2, 2020), https:// have a reasonable opportunity to examine the different groups of aliens triggers only www.justice.gov/eoir/page/file/1258536/ evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine rational basis review under equal download. The Departments disagree witnesses presented by the Government but these protection doctrine.... Under this that the current COVID–19 situation rights shall not entitle the alien to examine such minimal standard of review, a affects the reasonableness of the 10-day national security information as the Government classification is accorded ‘a strong deadline as filings can be submitted by may proffer in opposition to the alien’s admission to the United States or to an application by the alien presumption of validity’ and the mail and, in some locations, online. See for discretionary relief under this chapter. This rule government has no obligation to EOIR, Welcome to the EOIR Courts & does not affect any procedures that relate to aliens’ produce evidence to sustain its Appeals System (ECAS) Information rights under this provision of the INA, and, rationality.’’ (internal citations Page, https://www.justice.gov/eoir/ accordingly, the Departments need not respond further to this point. omitted)). ECAS. Further, if an immigration court 34 Although the Sixth Amendment’s right to Comment: Commenters also alleged location is unexpectedly closed on the counsel does not apply in immigration proceedings, that the pretermission of asylum day of the deadline, the deadline is some courts have held that a constitutional right to applications is incompatible with extended until the immigration court counsel in immigration proceedings applies as part federally established pleading standards of the Fifth Amendment’s due process clause. See, reopens. See EOIR, PM 20–07: Case e.g., Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (‘‘Both Congress and our court have 35 EOIR, Adjudication Statistics: Pending Cases immutability and particularity requirements are not recognized the right to retained counsel as being (Apr. 15, 2020), https://www.justice.gov/eoir/page/ necessarily factbound—though they may be in among the rights that due process guarantees to file/1242166/download (1,122,697 pending cases as discrete cases—and the failure of an alien to make petitioners in immigration proceedings.’’). of the second quarter of FY2020) a prima facie showing that a proposed particular Nevertheless, neither the proposed rule nor this 36 EOIR, Adjudication Statistics: Total Asylum social group consists of a characteristic that is final rule violates such a right to counsel as the rule Applications (Apr. 15, 2020), https:// immutable (or fundamental) or is defined with does not amend any procedures related to an alien’s www.justice.gov/eoir/page/file/1106366/download particularity may warrant pretermission of the right to obtain counsel of his or her choosing at no (120,495 asylum applications filed as of the second claim in appropriate cases. government expense. quarter of FY2020).

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and ‘‘would be an abrupt change from presumption of regularity,’’ Int’l Long measure for an immigration judge’s decades of precedent and practice Term Care, Inc. v. Shalala, 947 F. Supp. remand rate. In other words, an before the immigration court.’’ 15, 21 (D.D.C. 1996), and commenters immigration judge who improperly Commenters provided a hypothetical provide no evidence for the bald pretermitted applications in violation of chain of events to illustrate this alleged assertion that immigration judges will the law solely in order to complete more violation of pleading standards and ignore applicable law and the evidence cases would have those cases remanded cited to Braden v. Wal-Mart Stores, Inc., in each case simply in order to pretermit by the Board on appeal which, in turn, 588 F.3d 585, 594 (8th Cir. 2009) (citing the case. See also United States v. would cause the immigration judge’s Ashcroft v. Iqbal, 556 U.S. 662, 678 Chemical Found., 272 U.S. 1, 14–15 remand rate to exceed the level set by (2009) and Bell Atl. Corp. v. Twombly, (1926) (‘‘The presumption of regularity the performance measures. In short, 550 U.S. 554, 556 (2007)). supports the official acts of public there is no legal, factual, or logical Response: The Federal Rules of Civil officers, and, in the absence of clear reason to believe that codifying an Procedure do not apply in immigration evidence to the contrary, courts immigration judge’s authority to court. See Fed. R. Civ. P. 81 (setting out presume that they have properly pretermit legally deficient applications the applicability of the rules); see also discharged their official duties.’’). To and the existence of immigration judge 8 CFR part 1003, subpart C (setting out the contrary, in FY 2019, the first full performance evaluations will the immigration court rules of FY after immigration judge performance incentivize immigration judges to procedure). Accordingly, commenters’ measures went into effect, not only did violate the law in their decision making. reliance on cases that interpret Rule 8(a) most non-supervisory immigration Comment: Commenters emphasized of the Federal Rules of Civil Procedure judges working the full year meet the that asylum applications are governed are not applicable to immigration court. case completion measure without any by the law at the time of adjudication Moreover, the commenters’ comparisons difficulty, see EOIR, Executive Office for rather than the time of filing and to a pleading standard are inaccurate as Immigration Review Announces Case expressed concern that the the decision to pretermit an application Completion Numbers for Fiscal Year pretermission of applications for lack of is akin to a summary judgment decision, 2019, https://www.justice.gov/opa/pr/ a prima facie showing of eligibility not a pleading determination. Cf. F.R. executive-office-immigration-review- forces immigration judges and asylum Civ. P. 56 (‘‘The court shall grant announces-case-completion-numbers- officers to become ‘‘soothsayers.’’ summary judgment if the movant shows fiscal-year-2019, but complaints of Response: Allowing immigration that there is no genuine dispute as to immigration judge misconduct actually judges to pretermit and deny any material fact and the movant is declined slightly from the prior FY, see applications that do not present a prima entitled to judgment as a matter of EOIR, Adjudication Statistics: facie claim for relief or protection does law.’’). In order to ensure the Immigration Judge Complaints, https:// not conflict with this point. If the judge immigration judge has as much www.justice.gov/eoir/page/file/1104851/ determines that pretermission is information as possible about the download, even though the total number appropriate, that decision would be underlying claim, the rule ensures the of immigration judges increased 12 based on the law and regulations in applicant has the opportunity to percent, see EOIR, Adjudication place at that point, and the decision to respond to the possible pretermission of Statistics: Immigration Judge Hiring, pretermit is the adjudication of the his or her application, either as a https://www.justice.gov/eoir/page/file/ application. response to a DHS motion to pretermit 1242156/download. Comment: Commenters questioned or a response to the immigration judge’s Allowing pretermission of Form I–589 the effect the rule will have on the notice of possible pretermission. applications that do not establish a asylum clock, especially if a decision Comment: Commenters contended prima facie claim for relief or protection affecting eligibility is abrogated by a that the rule, in combination with the under the law provides immigration higher court after an application was Immigration Court Performance Metrics, judges with a mechanism to improve filed and pretermitted; one commenter incentivizes immigration judges to court efficiency by clarifying that there expressed concern that the rule does not pretermit asylum applications in order need not be a full merits hearing on specify ‘‘when in the process DHS or the to fulfill case completion requirements. those cases that present no legal judge can move.’’ One commenter Response: The Departments strongly questions for review, allowing them to emphasized that ‘‘[a]ny final rule which disagree with the commenters’ devote more time to cases in which facts is eventually published should consider underlying premise, namely that are at issue. There is no basis for the how the asylum clock will operate, and immigration judges are unethical or assumption that the rule would should provide clear instructions which unprofessional and decide cases based inappropriately incentivize immigration attorneys and their clients can rely on.’’ on factors other than the law and the judges to pretermit applications solely Response: The Departments note that facts of the cases. Immigration judges to fulfill case-completion goals. As USCIS recently published a final rule, exercise ‘‘independent judgment and noted, supra, some immigration judges Asylum Application, Interview, and discretion’’ in deciding cases, 8 CFR already pretermit legally deficient Employment Authorization for 1003.10, and are expected to ‘‘observe applications, and the Departments are Applicants, that eliminates the asylum high standards of ethical conduct, act in unaware of any link between that action clock.37 However that rule is currently a manner that promotes public and performance metrics; in fact, the subject of ongoing litigation and confidence in their impartiality, and immigration judges have pretermitted avoid impropriety and the appearance portions of the rule are subject to a legally deficient asylum applications preliminary injunction, as applied to of impropriety in all activities,’’ EOIR, since at least 2012, Matter of 38 Ethics and Professionalism Guide for two plaintiff organizations. E–F–H–L–, 26 I&N Dec. 319 (BIA 2014), Regardless, as stated in the proposed Immigration Judges at 1 (2011), https:// which was several years before rule, an immigration judge who www.justice.gov/sites/default/files/eoir/ performance measures were legacy/2013/05/23/Ethicsand implemented. 37 85 FR 38532, 39547. ProfessionalismGuideforIJs.pdf. Further, Moreover, assuming, arguendo, there 38 Casa de Maryland v. Wolf, No. 8:20–cv–02118– it is well-established that ‘‘[t]he were such an incentive, it would be PX, 2020 WL 5500165, (D. Md. Sept. 11, 2020) administrative process is entitled to a counter-balanced by the performance (order granting preliminary injunction).

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determines that an asylum application signature in Part G of the Form I–589, with Executive Orders 12866 and 13653, that fails to demonstrate prima facie which is most often signed by the alien which together direct agencies to eligibility for relief or protection under at the beginning of the merits hearing on evaluate the costs and benefits of applicable law may ‘‘pretermit and the alien’s asylum application and in alternative methods and to select the deny’’ such application. See 8 CFR which the alien swears that the approach that maximizes net benefits. 1208.13(e). Accordingly, a decision to application’s contents are true and Commenters contended that the rule is pretermit and deny would have the acknowledges the consequences of ‘‘wholly unconcerned’’ with calculating same asylum clock effects as any other submitting a frivolous application. the costs and benefits of the denial of an asylum application by the Accordingly, the signature in Part G of pretermission of asylum applications or immigration judge. the Form I–589 is related to a possible reducing costs to Federal government Comment: Commenters alleged that frivolousness finding and the attendant agencies. the rule would greatly decrease consequences. In particular, commenters expressed efficiency in the asylum process, as the Moreover, for the purposes of concern about costs of the rule possibly number of cases in which a hearing is determining whether to pretermit an eliminating what the commenters denied would ‘‘skyrocket’’ and the application, whether or not the referred to as the current, more flexible majority of these respondents would immigration judge has had the applicant ‘‘redlining’’ procedure in favor of appeal to the BIA. Commenters noted sign in Part G, the applicant signs in pretermission. The commenters the BIA’s current backlog and the Part D at the time the application is explained that ‘‘redlining’’ allows the increased delay in issuing briefing completed. The signature in Part D is alien to update and edit the asylum schedules and decisions. the alien’s certification under penalty of application after it is filed ‘‘up until the Response: Allowing immigration perjury that the application and any point of decision.’’ judges to pretermit and deny asylum evidence submitted with it are ‘‘true and Commenters disagreed that the rule applications that do not demonstrate a correct,’’ in addition to another notice of will create efficiencies, arguing instead prima facie claim for relief or protection the consequences of filing a frivolous that the rule will ‘‘increase will increase, not decrease, efficiencies application and other activities. Given administrative burden, expense, and for DOJ. Commenters’ predictions of the alien’s signature in Part D that the processing time by effectively creating how many cases will be pretermitted application is ‘‘true and correct,’’ the two distinct opportunities for appeals to under these changes are speculation, as Departments believe that the application the BIA, including: (1) Appeal from the the Departments do not have data on the is sufficient for the purposes of possible IJ’s decision to pretermit; and (2) appeal underlying bases for denials currently, pretermission even without a signature on the merits after the IJ’s decision to which would be required to accurately in Part G. pretermit is overturned.’’ predict how many might be pretermitted Comment: Commenters stated that Response: The Office of Information in the future. Moreover, as fewer than allowing pretermission will inevitably and Regulatory Affairs, in conducting its 20 percent of asylum applications are violate the confidentiality obligations review of the proposed rule, concluded granted even with a full hearing, see for asylum applicants, speculating that that the Departments complied with EOIR, Asylum Decision Rates, https:// the immigration judge, alien, and DHS Executive Orders 12866 and 13653, as www.justice.gov/eoir/page/file/1248491/ counsel will engage in inappropriate set out in section V.D of the proposed download, and many of the ones not conversations regarding the specifics of rule. 85 FR at 36289–90. The granted are appealed already, there is an asylum application in front of other Departments’ consideration included all likely to be little operational impact on people during master calendar hearings. provisions of the proposed rule, the BIA.39 In contrast, pretermitting Response: With few exceptions, most including the changes to 8 CFR 1208.13 legally deficient claims will improve immigration hearings are open to the regarding pretermission of applications. efficiency for immigration courts by public. 8 CFR 1003.27. Regulations Further, as stated above, the allowing immigration judges to screen further note that ‘‘[e]videntiary hearings Departments emphasize that allowing out cases that do not demonstrate prima on applications for asylum or pretermission of applications will facie eligibility and, thus, allowing withholding of removal will be open to increase efficiencies by allowing potentially meritorious applications to the public unless the alien expressly immigration judges to complete the progress more expeditiously to requests that the hearing be closed.’’ 8 adjudication of certain legally individual hearings. CFR 1240.11(c)(3)(i). A master calendar insufficient asylum applications earlier Comment: One commenter noted that hearing is not an evidentiary hearing. in the process, which in turn leaves there are particular signatures on the See Immigration Court Practice Manual, additional in-court adjudication time asylum application which can only be ch. 4.15(a), https://www.justice.gov/eoir/ available for those applications that may signed by the applicant at the final page/file/1258536/download (‘‘Master be meritorious. This change would not hearing and claimed that pretermission calendar hearings are held for pleadings, prevent aliens from amending or is ‘‘non-sensical’’ because the scheduling, and other similar matters.’’). updating applications that are pending application will not yet be complete. Further, an evidentiary hearing is a decision by the immigration judge, Response: The Departments disagree designed to ‘‘resolve factual matters in including a decision on pretermission. with commenters’ concerns that asylum dispute,’’ 8 CFR 1204.11(c)(3), which In addition, the Departments dispute the applications may not be pretermitted would necessarily exclude such a commenters’ assumption that because a signature is required by the hearing from the ambit of pretermission. immigration judge decisions to applicant at the final hearing. The Accordingly, there is no reason that the pretermit an application will be Departments believe that the specifics of an asylum application overturned. Immigration judges apply commenters are referring to the would be discussed at a master calendar the immigration laws and would only hearing, and even if they were, an pretermit applications that fail to 39 The Departments note that DOJ has also immigration judge may close the demonstrate a prima facie case for recently taken steps to improve adjudicatory courtroom as appropriate to protect the eligibility for relief—in other words, efficiency at the BIA. See EOIR, Case Processing at the Board of Immigration Appeals (Oct. 1, 2019), parties. 8 CFR 1003.27(b). that the application could be sufficient https://www.justice.gov/eoir/page/file/1206316/ Comment: Commenters noted that the to establish eligibility for relief. download. Departments are required to comply Applications that are facially deficient

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in this manner would not comply with even cause the creation of a particular unfounded, noting that, according to the applicable law and regulations, and, social group in society.’’ As a result, the UNHCR, the size of the group is as such, the Departments would not organization contended that the irrelevant in determining whether a expect such decisions to be overturned Convention allows particular social particular social group exists. on appeal. groups that do not exist independently Similarly, one organization noted that of the persecution. 4. Standards for Consideration During the rule would require a particular The organization claimed the NPRM social group to be ‘‘defined with Review of an Application for Asylum or takes the opposite approach, defining for Statutory Withholding of Removal 40 particularity’’ and ‘‘recognized as ‘‘circular’’ not only as particular social socially distinct in the society at 4.1. Membership in a Particular Social groups exclusively defined by question,’’ claiming that the NPRM fails Group persecution but also as those that do not to provide any reason for codifying exist independently of the persecution Comment: One organization noted these standards. The organization claim. The organization noted that, in generally that the rule denies asylum to alleged that the particularity and social doing so, the NPRM seeks to adopt the individuals fleeing violence and distinction requirements ‘‘cut across’’ circularity analysis in Matter of A–B–, persecution. Commenters noted that the each other, noting the BIA’s 27 I&N Dec. 316, which treats any group inclusion of ‘‘particular social group’’ in interpretation that an asylum seeker partially defined by the persecution of the statute was designed to create ‘‘identify a group that is broad enough its members as circular. The flexibility in the refugee definition so as that the society as a whole recognizes it, organization alleged that this but not so broad that it fails to capture individuals who do not fall interpretation of circularity is a within the other characteristics particularity’’ and claiming that this has ‘‘dramatic departure’’ from longstanding caused the BIA to essentially end enumerated in section 101(a)(42) of the precedent, noting that the courts of INA, 8 U.S.C. 1101(a)(42), and to ensure asylum grants based on particular social appeals have held that a particular groups that have not been previously that the United States provides social group is not circular unless it is protection in accordance with its treaty approved. defined ‘‘entirely’’ by persecution. The Multiple commenters called the rule obligations. Commenters argued that the organization claimed that the ‘‘unwise and discriminatory.’’ rule’s narrowing of particular social Departments do not acknowledge or Commenters alleged that the rule is group has been rejected by the Federal justify this ‘‘departure,’’ which makes designed to prevent individuals from courts as contrary to congressional the rule arbitrary. The organization also Central America from receiving asylum intent to align U.S. refugee law with the claimed that the Federal appellate cases and claimed that the rule evidences the Convention relating to the Status of cited in the rule have the same effect. In Departments’ intent to prevent ‘‘whole Refugees and its 1967 Protocol. See addition, the organization emphasized classes of persons’’ from claiming Flynn v. Sec’y of Health, Ed. & Welfare, that the BIA has long accepted asylum based simply on ‘‘the macro- 344 F. Supp. 94, 96 (E.D. Wis. 1972). particular social groups with references level characteristics of their country of Another organization stated that, by to the persecution bringing asylum denying the most common grounds of seekers to the United States. origin.’’ One organization representing particular social group membership, the One organization claimed the rule’s DHS employees criticized the rule ‘‘abridges U.S. obligations under requirement that the cognizable group Departments for creating a rule based on the Refugee Convention . . . which must exist independently from the the belief that asylum seekers are affords asylum seekers the opportunity persecution abrogates the following engaging in ‘‘gamesmanship’’ within the to explain why they fit into a protected specific particular social groups already United States legal system, a premise, group.’’ The organization also claimed recognized by circuit courts: Former the organization claimed, that is that the rule breaches the United States’ gang members, Arrazabal v. Lynch, 822 ‘‘contrary to our experiences as commitment to nonrefoulement, noting F.3d 961 (7th Cir. 2016); former adjudicators.’’ The organization stated that the United States has committed members of the Kenyan Mungiki, Gatimi that several of the social groups ‘‘slated itself to this principle as a party to the v. Holder, 578 F.3d 611 (7th Cir. 2009); for dismissal’’ in the rule ‘‘encompass a Refugee Protocol, the CAT, and defected KGB agents, Koudriachova v. wide cross-section of potentially customary international law. Gonzales, 490 F.3d 255 (2d Cir. 2007); successful asylum claims.’’ The Commenters emphasized a quote from young Albanian women targeted for organization also alleged that the rule the UNHCR stating that ‘‘[t]he term prostitution, Cece v. Holder, 733 F.3d creates a ‘‘rebuttable presumption’’ that membership of a particular social group 662 (7th Cir. 2013) (en banc); former asylum claims based on any of the should be read in an evolutionary child guerilla soldiers in Uganda, ‘‘broadly enumerated particular social manner.’’ Lukwago v. Ashcroft, 329 F.3d 157 (3d groups’’ are insufficient unless ‘‘more’’ Another organization noted that while Cir. 2003); individuals targeted by is provided, but claimed the rule fails to the phrase ‘‘particular social group’’ in Pakistani terrorist groups, Rehman v. define what is actually needed for a the Refugee Convention does not apply Att’y Gen. of U.S., 178 F. App’x 126 (3d successful claim. to every person facing persecution, the Cir. 2006), and the Taliban, Khattak v. Another organization alleged that the Convention requires only that a social Holder, 704 F.3d 197 (1st Cir. 2013); and NPRM’s proposal would violate due group not be ‘‘defined exclusively by Ghanaians returning from the United process, claiming that the private the fact that it is targeted for States, Turkson v. Holder, 667 F.3d 523 interest at stake—preventing the persecution.’’ According to the (4th Cir. 2012). violence or torture that would occur due Convention, ‘‘the actions of the Another organization claimed that, to refoulement—is ‘‘the most weighty persecutors may serve to identify or under international guidelines, the interest conceivable.’’ The organization ‘‘common characteristic’’ and ‘‘socially contended that the government’s 40 As an initial matter, the Departments note that visible’’ elements of a particular social countervailing interest is ‘‘nonexistent’’ commenters’ discussion on these points often group are meant to be ‘‘disjunctive,’’ due to the NPRM’s silence, also alleging referred solely to asylum claims. Where relevant, that ‘‘working with pro se asylum however, the Departments have also considered the requiring proof of either one or the comments in regards to statutory withholding of other. The organization also alleged that seekers’’ imposes a minimal burden on removal. the ‘‘particularity’’ requirement is the government.

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One organization claimed that the instead of being subjected to general every element of a particular social adjudication of asylum applications has rules that would result in ‘‘blanket group with exactness before the become ‘‘increasingly politicized’’ over denials.’’ Another organization stated immigration judge. Commenters the past three years through the that the Attorney General’s own expressed particular concern with the Attorney General’s self-certification of decision in Matter of A–B–, 27 I&N Dec. portion of the rule stating that a failure cases. The commenter noted that the 316, is based on the necessity of a to define a formulation of a particular Attorney General has issued nine ‘‘detailed, case-specific analysis of social group before a judge constitutes a decisions in the past three years that asylum claims’’ and highlights the BIA’s waiver of any such claim under the Act, restrict eligibility of relief for previous errors in ‘‘assessing the including on appeal. One organization noncitizens (with four additional self- cognizability of a social group without noted that this portion of the rule would certified decisions pending), while only proper legal analysis.’’ One organization disproportionately impact four precedential decisions were issued asserted that the rule appears to codify unrepresented asylum seekers, during the eight years of the previous the wrongly-decided Matter of W–Y–C– particularly those subjected to MPP, and administration. The organization stated & H–O–B–, 27 I&N Dec. 189 (BIA 2018), would ‘‘forever punish asylum seekers that, rather than clarifying existing and ‘‘takes those restrictions even who were the victims of ineffective definitions, the rule ‘‘virtually further.’’ assistance of counsel.’’ eliminates particular social group as a Another organization emphasized that Another organization alleged that the basis for asylum.’’ the circuit courts have disagreed on ‘‘at combination of performance goals and One organization emphasized that if least a portion’’ of the definition of interminable dockets will result in ‘‘the the Departments choose to codify the particular social group. One demise of due process in Immigration prerequisites to particular social groups organization noted that elements of the Court for pro se litigants.’’ The as stated in the rule, they must rule’s proposed definition have met an organization noted the importance of ‘‘consider all reasonable alternatives ‘‘uneven fate’’ in the courts of appeals, the ‘‘motions practice’’ in a legal system presented to’’ them. Multiple with many courts finding at least one of that is committed to due process, organizations suggested the the provisions inconsistent with the emphasizing the long-standing practice Departments adopt the Matter of Acosta statutory text. Another organization of allowing motions to reopen in the standard for the analysis of particular contended that the circuit courts cannot context of ineffective assistance of social group claims, meaning that be ‘‘overruled’’ by either this rule or counsel. Another organization stated ‘‘particular social group’’ should be ‘‘the Attorney General’s attempt to that, over the past five years, between 15 interpreted consistently with the other devise a new definition of ‘particular percent and 24 percent of all asylum four protected characteristics laid out in social group’ that intends to cut off seekers have been unrepresented by the INA. 19 I&N Dec. 211, 233 (BIA certain claims’’ that have been counsel, emphasizing that these 1985), abrogated in part on other previously recognized by the circuit individuals do not have training in grounds by Matter of Mogharrabi, 19 courts and the BIA. One organization United States asylum law, often speak I&N Dec. 439 (BIA 1987). One noted that, while the NPRM states in its little to no English, and are unfamiliar organization emphasized that this first footnote that agencies have the with the intricate rules surrounding definition is simple, straightforward, authority to re-interpret ambiguous particular social groups. One and could be understood by pro se statutory phrases, it fails to explain how organization expressed specific concern asylum seekers. the definitions at issue arise from an for refugees. Another organization Another organization alleged that the ambiguous term. Another organization claimed that the rule provides no Departments failed to consider adopting claimed that until the Supreme Court reasoning for its ‘‘expansion of the the UNHCR definition of particular resolves the disagreements surrounding punitive effect of waiver to encompass social group, which includes both the particular social group definition, ineffective assistance claims,’’ claiming immutability and the basic requirement the Departments have no authority to this is against public policy and is also that the group ‘‘be perceived as a group ‘‘overrule’’ the circuit courts’ arbitrary and capricious; at least one by society.’’ The organization contended interpretation of this term. other organization emphasized this that this standard, like the Matter of Another organization alleged that the point as well. Acosta definition, is reasonable, rule would ‘‘carve out’’ a laundry list of One organization expressed particular emphasizing that it remains particular social groups toward which concern for members of the LGBTQ ‘‘significantly closer to the other the administration has shown community, emphasizing that, due to grounds for asylum in the INA’’ than the ‘‘pervasive, unlawful hostility’’ without the nature of the ‘‘coming out and Departments’ proposal. any effort to ground these exceptions in transitioning process,’’ the formulation One organization expressed concern the Departments’ statutory authority, of a particular social group may change that the rule would codify the claiming this is a violation of the over time, also noting that a refugee may ‘‘restrictive definition’’ of particular Administrative Procedure Act (‘‘APA’’). not know right away that he or she is social group announced in Matter of M– One organization contended that ‘‘[t]he HIV positive. The organization claimed E–V–G–, 26 I&N Dec. 227, 237 (BIA use of such brazen ipse dixit without that the rule, ‘‘disregards the reality of 2014), noting that the rule shortens the more renders each entry on the list LGBTQ lives’’ and will cause LGBTQ definition set forth in Matter of Acosta. arbitrary,’’ also claiming that this asylum seekers to be sent back to danger The organization also contended that impedes the Departments’ goal of merely because they were unable to the rule misconstrues the concept of consistency. The organization claimed ‘‘come up with the right verbiage to particular social group by inserting the Departments failed to consider describe the complicated process of unrelated legal issues into the whether their ‘‘laundry list’’ of coming out and transitioning.’’ The definition, which the organization generally-barred particular social groups organization claimed this issue is believes would lead to greater confusion would result in the erroneous denial of exacerbated by the fact that many of for all parties involved. The meritorious claims. these individuals are unrepresented and organization emphasized that each Commenters claimed that one of the do not speak English. Another particular social group claim should be ‘‘most unfair’’ aspects of the rule is that organization noted that the INA requires evaluated on a ‘‘case-by-case basis’’ it would require asylum seekers to state exceptions to the one-year filing

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deadline for ‘‘changed and incompetent, stating that holding these commenters’ contentions that the extraordinary circumstances,’’ INA respondents to this kind of legal Convention Relating to the Status of 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D), standard violates their rights under the Refugees (‘‘Refugee Convention’’), July emphasizing that this is particularly Rehabilitation Act. See 29 U.S.C. 794; 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. important for this category of asylum see also Franco-Gonzales v. Holder, 767 150, or the related Refugee Protocol seekers. F. Supp. 2d 1034 (C.D. Cal. 2010). offers guidance on the matter, the term One organization claimed the rule Response: The Departments disagree is not defined in either of those would make it especially difficult for with general comments that the rule instruments. 85 FR at 36278; see also African asylum seekers to qualify for would deny asylum to all individuals Matter of A–B–, 27 I&N Dec. at 326, n.5 asylum based on particular social group fleeing violence and persecution. The (‘‘The Protocol offers little insight into membership. The organization also Departments note that asylum the definition of ‘particular social expressed concern for women survivors protection is not available to every group,’ which was added to the Protocol of female genital cutting (‘‘FGC’’), applicant who is fleeing difficult or ‘as an afterthought.’ ’’) (quoting Matter of alleging that these individuals would dangerous conditions in his or her home Acosta, 19 I&N Dec. at 232)). not know to include this fact as part of country. To qualify for asylum, an The Board has noted that the term a gender-based particular social group applicant must demonstrate, among ‘‘particular social group’’ is both claim. The organization claimed it other things, that the feared persecution ambiguous and difficult to define. would be ‘‘a miscarriage of justice’’ to would be inflicted ‘‘on account of’’ a Matter of M–E–V–G–, 26 I&N Dec. at 230 preclude these women from presenting protected ground, such as membership (‘‘The phrase ‘membership in a claims. in a particular social group. See INA particular social group,’ which is not One organization alleged that the rule 101(a)(42), 8 U.S.C. 1101(a)(42) defined in the Act, the Convention, or would make it ‘‘almost impossible’’ for (defining ‘‘refugee’’ as a person who, the Protocol, is ambiguous and difficult children, particularly those from Central inter alia, has suffered ‘‘persecution or to define.’’). Moreover, the Board has America or Mexico, to obtain asylum a well-founded fear of persecution on also recognized that prior approaches to protection based on membership in a account of . . . membership in a defining the term have led to confusion particular social group. The particular social group’’). Even and inconsistency, warranting further organization alleged that the rule’s accepting that the term ‘‘particular evaluation. As the Board stated in M–E– barring of a particular social group social group’’ was intended to create V–G–: claim that was not initially raised in the flexibility in the refugee definition, the Now, close to three decades after Acosta, asylum application (or in the ‘‘record’’ contours of that flexible term are clearly claims based on social group membership are before an immigration judge) raises ambiguous and within the purview of numerous and varied. The generality ‘‘serious due process concerns’’ for the Departments to decide. See, e.g., permitted by the Acosta standard provided children, as many of the children Matter of A–B–, 27 I&N Dec. at 326 (‘‘As flexibility in the adjudication of asylum arriving in the United States have the Board and the Federal courts have claims. However, it also led to confusion and a lack of consistency as adjudicators suffered immense trauma and may not repeatedly recognized, the phrase be able to discuss their experiences for struggled with various possible social groups, ‘membership in a particular social some of which appeared to be created quite some time. The organization group’ is ambiguous.’’ (collecting exclusively for asylum purposes.... In expressed particular concern for cases)). Accordingly, the Departments Matter of R–A–, 22 I&N Dec. 906, 919 (BIA unaccompanied children, noting they are establishing clear guidelines for 1999; A.G. 2001), we cautioned that ‘‘the are often unable to discuss the harm adjudicators and parties regarding the social group concept would virtually they experienced in their home country parameters of particular-social-group swallow the entire refugee definition if common characteristics, coupled with a until they have spent time with a claims. The Departments believe that trusted adult. The organization noted meaningful level of harm, were all that need such guidelines will promote a more be shown.’’ that, for many children, the asylum uniform approach towards adjudicating process is the first time they ever such claims. This will not only aid Id. at 231 (footnote omitted). discuss their experiences, claiming the adjudicators in applying a more uniform Consequently, the inherently case-by- case nature of assessing the rule ‘‘is unrealistic and an untenable standard, but will also aid parties such cognizability of a particular social burden for most children.’’ that they may have a clearer Commenters also stated that an group, the lack of a clear definition of understanding of how they may prevail asylum seeker’s life should not depend the term and its consideration through on a particular social group claim as on his or her ‘‘ability to expertly craft an open-ended and largely subjective they develop their applications. arguments in the English language in a The Departments disagree that the way that satisfies highly technical legal propose a general rule that a particular group does proposed changes to particular-social- qualify for asylum.’’ Irrespective of the commenter’s requirements.’’ One organization stated group claims violate the Act, case law, that ‘‘[a]pplying for asylum is not a characterization of the Departments’ citation, the or the due process rights of immigrants. D.C. Circuit recently reversed the district court word game; asylum seekers’ lives are on As noted in the NPRM, Congress has not regarding its statements that the agency action the line with every application that an contested in that litigation improperly established defined the term ‘‘membership in a adjudicator decides.’’ Multiple a categorical bar against recognizing a specified particular social group.’’ See 85 FR at commenters claimed that asylum particular social group. Grace II, 965 F.3d at 906. 36278; see also Grace II, 965 F.3d at 888 Specifically, the court determined that the officers and immigration judges have a (‘‘The INA nowhere defines ‘particular Departments’ use of the term ‘‘generally’’ duty to help develop the record. One demonstrated that the Departments had not social group.’ ’’).41 Additionally, despite organization stated that the Departments imposed a categorical rule against finding the particular social group at issue in that litigation. Id. should rely on the decisions of EOIR 41 One commenter questioned the accuracy of the Similarly, the Departments here have set forth a list and Article III courts rather than on the Departments’ citation to and characterization of of particular social groups that ‘‘generally, without expertise of asylum seekers. Finally, one Grace II’s underlying case, Grace I, 344 F. Supp. 3d more’’ will not be cognizable, but have specifically organization expressed concern that this at 146, because, according to the commenter, the recognized that the regulation does not foreclose case stated that the Attorney General could ‘‘not that, in rare circumstances, such facts could be the portion of the rule contains no propose a general rule that a particular social group basis for finding a particular social group, given the exceptions for minors or individuals will not qualify for asylum’’ and did ‘‘not reach the fact- and society specific nature of this who are mentally ill or otherwise question of whether the Attorney General could determination.’’ 85 FR at 36279.

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lens by adjudicators, and the potential . . . intrude upon the domain which cognizable social group.’’); Sam v. for confusion and inconsistent Congress has exclusively entrusted to an Holder, 752 F.3d 97, 100 (1st Cir. 2014) application—particularly with administrative agency.... A court of (Guatemalans returning after a lengthy appeals is not generally empowered to residence in the United States is not a conflicting circuit court interpretations conduct a de novo inquiry into the matter of similar groups—all make the being reviewed and to reach its own cognizable particular social group). definition of a particular social group conclusions based on such an inquiry. The Departments agree with ripe for rulemaking. See Lopez v. Davis, commenters that circuit court Id. at 16 (cleaned up)); cf. Gonzales v. 531 U.S. 230, 244 (2001) (observing that interpretations of the phrase ‘‘particular Thomas, 547 U.S. 183, 185–87 (2006) ‘‘a single rulemaking proceeding’’ may social group’’ have been uneven, and (applying Ventura to require a remand allow an agency to more ‘‘fairly and the inconsistency with which that from the circuit court to the agency to efficiently’’ address an issue than would phrase has been evaluated strongly determine a question of the meaning of ‘‘case-by-case decisionmaking’’ militates in favor of the agencies ‘‘particular social group). ‘‘Indeed, adopting a clearer, more uniform (quotation marks omitted)). ‘judicial deference to the Executive Furthermore, courts have also definition. Further, the Departments Branch is especially appropriate in the expressly held that the term is have considered all relevant circuit immigration context,’ where decisions ambiguous. See, e.g., Cordoba v. Holder, court law on the issue and note that about a complex statutory scheme often 726 F.3d 1106, 1114 (9th Cir. 2013) significant conflicts exist among the implicate foreign relations.’’ Scialabba (‘‘We have recognized that the phrase various interpretations. See, e.g., Paloka v. Cuellar de Osorio, 573 U.S. 41, 56– ‘particular social group’ is v. Holder, 762 F.3d 191, 197 (2d Cir. 57 (2014) (plurality op.) (quoting INS v. ambiguous.’’); Fatin, 12 F.3d at 1238 2014) (highlighting conflicting circuit Aguirre-Aguirre, 526 U.S. 415, 425 (‘‘Both courts and commentators have court decisions regarding whether (1999)). Accordingly, the Departments young Albanian women are a particular struggled to define ‘particular social are acting within their well-established group.’ Read in its broadest literal sense, social group and collecting cases authority to define the term ‘‘particular showing differing circuit court decisions the phrase is almost completely open- social group.’’ ended. Virtually any set including more regarding cognizability of other Furthermore, the Departments’ particular social groups). Nevertheless, than one person could be described as regulations regarding the adjudication of a ‘particular social group.’ Thus, the the Departments believe that the rule claims pertaining to ‘‘membership in a reflects an appropriate and reasonable statutory language standing alone is not particular social group’’ are reasonable very instructive.’’).42 synthesis of legal principles consistent interpretations of the term, as evidenced with the Departments’ respective policy As noted in the NPRM, ambiguities in by a long history of agency and circuit the Act should ‘‘be resolved, first and positions. Additionally, as noted in the court decisions to have interpreted the NPRM, 85 FR at 36265 n.1, to the extent foremost, by the agency.’’ 85 FR at terms consistently with the 36265 (quoting Matter of R–A–, 24 I&N that some circuits have disagreed with Departments’ guidelines. See Matter of the Departments’ reasonable Dec. at 631 (quoting Brand X, 545 U.S. W–G–R–, 26 I&N Dec. 208, 222–23 (BIA at 982 (internal quotation and citations interpretation, the Departments’ 2014) (pertaining to past or present proposed rule would warrant re- omitted)). Further, the Supreme Court criminal activity or associations); has clearly indicated that administrative evaluation in appropriate cases under Cantarero v. Holder, 734 F.3d 82, 86 (1st well-established principles. See Brand agencies, rather than circuit courts, are Cir. 2013) (same); Gonzalez v. U.S. Att’y the most appropriate entities to make X, 545 U.S. at 982; cf. Ventura, 537 U.S. Gen., 820 F.3d 399, 405 (11th Cir. 2016) at 16–17 (within broad limits, the INA determinations about asylum eligibility (same); Matter of A–B–, 27 I&N Dec. at in the first instance. The Supreme entrusts agencies, not circuit courts, to 320 (pertaining to presence in a country make basic asylum eligibility Court, in INS v. Ventura, 537 U.S. 12 with generalized violence or a high (2002), noted: determinations). crime rate and private criminal acts of The Departments disagree with Within broad limits the law entrusts the which governmental authorities were commenters’ assertions that the rule agency to make the basic asylum eligibility unaware or uninvolved); Matter of S–E– would render it ‘‘virtually impossible’’ decision here in question.... In such G–, 24 I&N Dec. 579, 585–86 (BIA 2008) to prevail on asylums claim involving circumstances a judicial judgment cannot be (pertaining to attempted recruitment of membership in a particular social group made to do service for an administrative the applicant by criminal, terrorist, or judgment.... Nor can an appellate court or undermine the concept of ‘‘case-by- persecutory groups); Matter of E–A–G–, case’’ adjudication of particular-social- 42 One commenter also suggests that the 24 I&N Dec. 591, 594–95 (BIA 2008) group claims, as described in Matter of Departments cited Cordoba, 726 F.3d 1106, with a (same); Matter of A–M–E– & J–G–U–, 24 A–B–, 27 I&N Dec. 316. Assuming the ‘‘glaring omission.’’ The commenter suggests that I&N, Dec. 69, 75 (BIA 2007) (same); formulation of the proposed particular Cordoba acknowledges that the term ‘‘particular Matter of Pierre, 15 I&N Dec. 461, 462– social group would, if supported, meet social group’’ is ambiguous, but asserts that the Departments fail to recognize that the case goes on 63 (BIA 1975) (pertaining to the definition of such a group in the first to ‘‘clear up that ambiguity.’’ The Departments need interpersonal disputes of which instance—i.e., assuming the proposed not delve further into this analysis, which is governmental authorities were unaware particular social group sets forth a prima refutable for various reasons, other than to state that or uninvolved); Gonzalez-Posadas v. facie case that the group is based on an the case plainly supports the proposition that the term ‘‘particular social group’’ is ambiguous and Att’y Gen. of U.S., 781 F.3d 677, 685 (3d immutable or fundamental that such ambiguities are left to the Departments to Cir. 2015) (same); Gonzales-Veliz v. characteristic, is defined with clarify pursuant to agency authority. Chevron, 467 Barr, 938 F.3d 219, 230–31 (5th Cir. particularity, and is recognized as U.S. at 845 (‘‘Once [the court] determined, after its 2019) (pertaining to private criminal socially distinct—the rule does not alter own examination of the legislation, that Congress did not actually have an intent regarding the acts of which governmental authorities an adjudicator’s responsibility to applicability of the bubble concept to the permit were unaware or uninvolved); Delgado- determine whether the facts and program, the question before it was not whether in Ortiz v. Holder, 600 F.3d 1148, 1151–52 evidence of each individual case its view the concept is ‘inappropriate’ in the general (9th Cir. 2010) (‘‘We conclude that ultimately establish that the proposed context of a program designed to improve air quality, but whether the [agency’s] view that it is Petitioners’ proposed social group, particular social group is cognizable. appropriate in the context of this particular program ‘returning Mexicans from the United Thus, whether a proposed group has— is a reasonable one.’’). States,’ . . . is too broad to qualify as a see, e.g., Matter of Toboso-Alfonso, 20

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I&N Dec. 819, 822 (BIA 1990) providing clarity on this issue through evidentiary support. Further, because (designated as precedent by Attorney rulemaking, rather than through other each asylum application is adjudicated General Order No. 1895–94 (June 12, forms of sub-regulatory guidance or based on its own facts and evidentiary 1994)) (homosexuals in Cuba may be a through the development of case law in support and because the rule does not particular social group)—or has not— individual adjudications, in order to categorically rule out specific claims, see, e.g., Matter of Vigil, 19 I&N Dec. promote much needed uniformity and commenters’ concerns about the effects 572, 575 (BIA 1988) (young, male, clarity on the particular-social-group of the rule on broad, undifferentiated urban, unenlisted Salvadorans do not issue. See also Memorandum from categories without reference to specific constitute a particular social group)— Jefferson B. Sessions, III, Attorney claims are conclusory, conjectural, been recognized in other cases is not General, re: Prohibition on Improper unfounded, and wholly and inherently dispositive of whether the proposed Guidance Documents 1 (Nov. 16, 2017), speculative. particular social group in an individual https://www.justice.gov/opa/press- With respect to commenters’ claims case is cognizable. See S.E.R.L. v. Att’y release/file/1012271/download (in that the social groups that would be Gen., 894 F.3d 535, 556 (3d Cir. 2018) contrast with issuing informal dismissed under the rule would (‘‘Consequently, it does not follow that ‘‘guidance documents,’’ ‘‘notice-and- historically encompass a large number because the BIA has accepted that one comment rulemaking . . . has the of potentially successful asylum claims, society recognizes a particular group as benefit of availing agencies of more the Departments reiterate that they are distinct that all societies must be seen complete information about a proposed setting forth, by regulation, a reasonable as recognizing such a group.’’). rule’s effects than the agency could interpretation of the statutory term Adjudicators should not assume that a ascertain on its own, and therefore ‘‘particular social group’’ that will particular social group that has been results in better decision making’’). The ameliorate stressors upon the healthy found cognizable in one case is Department applies the same response functioning of our immigration system cognizable in every other case in which to address commenters’ concerns with and encourage uniformity of it is asserted or is cognizable in respect to the ‘‘broad wording’’ of the adjudications. Even assuming, without perpetuity, nor should they assume the groups that the rule describes as deciding, that there are other, broader opposite. Id. Rather, if the proposed generally not cognizable for asylum interpretations of the term ‘‘particular particular social group would be legally claims. social group’’ that might encompass a cognizable if sufficiently supported by larger number of asylum applicants, the The Departments also disagree with evidence, adjudicators should continue relevant inquiry is not whether the commenters that the rule is unwise or to adjudicate particular social group Departments’ interpretation is the discriminatory, or that the purpose of claims on a case-by-case basis. preferred interpretation or even the best Further, as the Departments have this rule is to exclude certain groups of interpretation. Rather the relevant specified, while the listed groups would applicants or target individuals from inquiry is whether the Departments’ be ‘‘generally insufficient to establish a Central America and Mexico. As stated interpretation is reasonable. See particular social group’’ because they do above, the rule is not ‘‘immoral,’’ Chevron, 467 U.S. at 845; see also not meet the definition of such a group, motivated by racial animus or Holder v. Martinez Gutierrez, 566 U.S. the Departments do not entirely promulgated with discriminatory intent. 583, 591 (2012) (observing that the foreclose the possibility of establishing Rather, it is rooted in case law from the agency’s ‘‘position prevails if it is a an asylum claim on those bases. Rather, BIA, multiple circuits, and the Supreme reasonable construction of the [INA], the rule simply lists social groups that, Court, none of which have evinced a whether or not it is the only possible ‘‘without more,’’ generally will not meet racial or discriminatory animus. interpretation or even the one a court the particularity and social distinction Further, the rule is intended to help the might think best’’). The regulations requirements for particular social group. Departments better allocate limited indeed set forth a reasonable 85 FR at 36279. resources in order to more expeditiously interpretation of the term ‘‘particular Such general guidelines are an adjudicate meritorious asylum, statutory social group,’’ for the reasons described appropriate use of agency authority that withholding of removal, and CAT above. The Departments also note again comports with the Attorney General’s protection claims. Relatedly, with that the rule will not categorically decision in Matter of A–B–. Cf. 8 CFR respect to commenters’ concerns about exclude the listed groups, rather it 208.4(a)(4),(5), 1208.4(a)(4), (5) this rule’s potential effect on certain, issues guidance that such groups will (providing general categories of discrete groups—e.g., LGBTQ ‘‘generally’’ not meet the requirements circumstances that may qualify as individuals, minors, and other specific of a cognizable particular social group changed circumstances or extraordinary nationalities—the Departments note that ‘‘without more.’’ circumstances for purposes of INA they have codified a long-standing test Relatedly, commenters’ statements 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D)); 8 for determining cognizability of that the rule would result in denial of CFR 212.7(d), 1212.7(d) (‘‘The Attorney particular social groups and have set meritorious claims are circular. A claim General, in general, will not favorably forth a list of common fact patterns is meritorious if it meets all of the exercise discretion under section involving particular-social-group claims statutory requirements for asylum, 212(h)(2) of the Act . . . with respect to that generally will not meet those well- including, where appropriate, the immigrant aliens who are inadmissible established requirements. The ambiguous statutory requirement of under section 212(a)(2) of the Act in Departments did not first determine demonstrating ‘‘membership in a cases involving violent or dangerous which groups should or should not be particular social group.’’ The crimes, except in extraordinary cognizable and craft a rule around that Departments note the commenters’ circumstances[.]’’); Matter of Y–L–, 23 determination, and the rule does not position that the term should be defined I&N Dec. at 274–76 (establishing a single out any discretely-labeled groups more broadly than what the general presumption that aggravated in the manner suggested by Departments proposed, and, to be sure, felony drug trafficking crimes are commenters. Moreover, as the rule a broader definition would result in ‘‘particularly serious crimes’’ for makes clear, it applies ‘‘in general’’ and more groups being recognized as purposes of INA 241(b)(3)(B), 8 U.S.C. does not categorically rule out specific cognizable. However, for the reasons 1231(b)(3)(B)). The Departments are claims depending on the claim’s explained in the NPRM, 85 FR at

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36277–79, and throughout this married female victims of domestic accordance with the evidence and rulemaking, the Departments have set violence.’’); Amezcua-Preciado v. U.S. applicable law and policy. In particular, forth a reasonable definition of the term Att’y Gen., 943 F.3d 1337, 1344 (11th EOIR’s mission remains the same—to as part of their well-established Cir. 2019) (discussing similar proposed adjudicate cases in a fair, expeditious, authority to do so. To the extent that particular social groups across multiple and uniform manner. See EOIR, About applicants are unable to meet the circuits that closely tracked the group the Office, https://www.justice.gov/eoir/ statutory requirements, including recognized by the BIA in Matter of A– about-office (last updated Aug. 14, ‘‘membership in a particular social R–C–G–); Del Carmen Amaya-De 2018); see also 8 CFR 1003.1(d)(1)(ii) group’’ as that term is reasonably Sicaran v. Barr,—F.3d—, 2020 WL (‘‘Board members shall exercise their defined by the Departments, their 6373124 (4th Cir. 2020) (noting independent judgment and discretion in claims are not meritorious. decisions from other circuits addressing considering and determining the cases The Departments believe that similar proposed particular social coming before the Board[.]’’); 8 CFR commenter assertions that parties will groups that closely tracked the group 1003.1(e)(8)(ii) (‘‘[T]he Director shall need to prove that they do not belong recognized by the BIA in Matter of A– exercise delegated authority from the in or are distinct from a listed particular R–C–G–). As the Departments discussed, social group misconstrue the particular supra, the rule does not depart from Attorney General identical to that of the social group analysis. People may, and longstanding principles regarding the Board[.]’’); 8 CFR 1003.10(b) are likely to, belong to multiple groups, case-by-case nature of asylum (‘‘immigration judges shall exercise which might or might not include adjudications. Thus, adjudicators do not their independent judgment and cognizable particular social groups. An apply a positive presumption that a discretion’’). applicant need not prove that he or she particular social group that has been The Departments decline to does not belong to a non-cognizable found cognizable in one case is incorporate the commenter group, only that he or she belongs to a cognizable in every other case in which recommendation to codify either the cognizable group and was persecuted on it is asserted or is cognizable in Matter of Acosta standard for particular account of that membership. perpetuity, nor do they apply a social group, which required only that Membership in a non-cognizable group categorical negative presumption that a a group be immutable, or the alleged does not negate one’s membership in a group listed in the rule is always and in UNHCR standard, which commenters cognizable group. Thus, an asylum every case not cognizable. Nothing in stated requires immutability and that applicant who has membership in one the rule creates categorical the group ‘‘be perceived as a group by of the listed groups, which will presumptions, either positive or society’’ in lieu of the Matter of M–E– generally not be cognizable without negative. V–G– standard, which requires more, does not preclude an applicant It is always the applicant’s burden to from prevailing on a separate cognizable demonstrate that he or she belongs to a immutability, particularity, and social claim. cognizable particular social group and distinction. To do so would be to shirk The Departments disagree with must set forth the facts and evidence to decades of development in particular commenter assertions that the rule establish that claim, regardless of social group claims in favor of a impermissibly creates a negative whether or not the proposed group is standard set forth shortly after presumption against cognizability of the described in this rule. INA 208(b)(1)(B), enactment of the Refugee Act of 1980, listed groups. As an initial point, the 8 U.S.C. 1158(b)(1)(B). This rulemaking when ‘‘relatively few particular social listed groups, as discussed in the highlights common proposed groups group claims had been presented’’ to NPRM, 85 FR at 36279, are generally that generally, without more, will not immigration adjudicators, and which rooted in case law, and commenters meet an applicant’s burden to ‘‘led to confusion and a lack of neither allege that the circuit court case demonstrate membership in a consistency’’ in subsequent years as law underlying the listing of these ‘‘particular social group,’’ and the adjudicators struggled with ‘‘numerous groups establishes a ‘‘negative burden remains on the applicant, as it and varied’’ proposed groups. See presumption’’ against groups that have always has, to demonstrate that he or Matter of M–E–V–G–, 26 I&N Dec. at not been recognized in that case law, she is a member of a cognizable 231. Moreover, ‘‘immutability, while nor urge the Departments to abandon particular social group. Id. This important, has never been the last or their longstanding policy to treat circuit rulemaking puts applicants on notice only word on the definition of a social court case law as binding—including that such groups, generally, without group,’’ because ‘‘[m]any social groups decisions regarding the cognizability of more, will not be cognizable. To the are labile in nature.’’ Ahmed v. alleged particular social groups—in the extent that an applicant believes that his Ashcroft, 348 F.3d 611, 617 (7th Cir. circuit in which it arises. Thus, to the or her membership in one of the listed 2003). Further, notwithstanding the extent that commenters disagree with groups should nevertheless be commenter’s statement that the M–E–V– the Departments’ codification of existing recognized, he or she may present his or G– standard is confusing, the case law, that disagreement lies with the her claim stating why the proposed Departments note that the nearly all of case law itself. Additionally, in the group is cognizable and, as appropriate, the circuits have applied the M–E–V–G– Departments’ experience, many appeal it to the BIA and a Federal test and the Third and Ninth Circuits advocates treat the recognition of a circuit court. have expressly accorded Chevron The commenters’ statements about the particular social group—either by the deference to that framework. See, e.g., Board or a circuit court—as establishing Attorney General’s authority to certify S.E.R.L., 894 F.3d at 554 n.20 (collecting a positive presumption, if not a cases and issue precedential decisions cases). As the commenter notes, the categorical rule, that the group is relate to powers delegated to the Seventh Circuit has neither rejected nor cognizable in every case, yet Attorney General by Congress that have commenters expressed no concern with existed for decades and are far outside endorsed the framework. that type of presumption. Cf. S.E.R.L., of the scope of this rulemaking. INA Relatedly, the Departments will not 894 F.3d at 556 (‘‘S.E.R.L. relies heavily 103(a)(1), (g), 8 U.S.C. 1103(a)(1), (g); 8 incorporate commenter suggestions to on [Matter of A–R–C–G–], in which the CFR 1003.1(h). All decisions in the expand the regulatory language with Board considered a group consisting of immigration system are made in respect to the requirement of

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immutability to include characteristics (‘‘We agree that under the statute a fairness or due process.43 Nothing in the that are ‘‘so fundamental to individual ‘particular social group’ must exist rule eliminates an alien’s right to notice identity or conscience that it ought not *COM007*independently of the and an opportunity to be heard, which be required to be changed[,]’’ as stated persecution suffered by the applicant for are the foundational principles of due in Matter of Acosta. 19 I&N Dec. at 233. asylum.’’); accord Amaya-De Sicaran, process. See Matthews v. Eldridge, 424 Contrary to the commenter’s assertion, 2020 WL 6373124 at *5 (‘‘The U.S. 319, 348–49 (1976) (‘‘The essence the Departments clearly noted in the proposition that a cognizable particular of due process is the requirement that a NPRM that this rulemaking codifies the social group cannot be defined by the person in jeopardy of serious loss (be ‘‘longstanding requirements’’ of underlying persecution is hardly given) notice of the case against him and immutability, particularity, and social controversial. The anti-circularity opportunity to meet it.’’ (cleaned up)). distinction, recognizing that principle—and the Chevron deference to Aliens remains subject to specified ‘‘[i]mmutability entails a common which it is entitled—has won wide procedures regarding claims of a fear of characteristic: A trait that the members acceptance among the circuit courts return to an alien’s country of of the group either cannot change, or .... Even prior to the Attorney nationality, including the ability to have should not be required to change General’s decision, we have applied the a claim reviewed or heard by an because it is fundamental to their anti-circularity principle .... And a immigration judge. Moreover, the fact individual identities or consciences.’’ 85 broader examination of caselaw pre- that applicable law may limit the types FR at 36278 (internal quotations Matter of A–B– confirms that this is no of claims an alien may bring—e.g., an omitted) (citing Matter of Acosta, 19 new proposition.’’). asylum claim based on a fear of I&N Dec. at 233). Accordingly, the persecution unrelated to one of the five Departments believe that this language In recent litigation, asylum seekers statutory grounds in INA 101(a)(42), 8 adequately addresses the commenter did ‘‘not challenge A–B–’s description of U.S.C. 1101(a)(42)—or the ability of an concerns without further expanding the the circularity rule’’ and, the court alien to bring an asylum or statutory definition in the regulatory language. determined, A–B–’s test sets forth withholding claim at all—e.g., an alien ‘‘exactly the analysis required to The Departments disagree with convicted of an aggravated felony for commenters’ concerns that the rule’s determine whether a particular claim is which the alien was sentenced to an requirement that the particular social or is not circular.’’ Grace II, 965 F.3d at aggregate term of imprisonment of at group must have existed independently 905. For courts that have rejected this least five years, INA 208(b)(2)(A)(ii), of the alleged persecutory acts and ‘‘independent existence’’ requirement, (B)(i) and 241(b)(3)(B)(ii), 8 U.S.C. cannot be defined exclusively by the see, e.g., Cece, 733 F.3d at 671–72, both 1158(b)(2)(A)(ii), (B)(i) and alleged harm is arbitrary. 85 FR at subsequent decisions recognizing the 1231(b)(3)(B)(ii)—does not mean that an 36278. This codifies the Attorney requirement, see, e.g., Matter of A–B–, alien has been deprived of due process. General’s analysis for determining 27 I&N Dec. 316, and Matter of M–E–V– As explained in the NPRM and whether a social group has been defined G–, 26 I&N Dec. 227, and the reiterated herein, this rule is rooted in ‘‘circularly,’’ as laid out in Matter of A– Departments’ proposed rule codifying it well-established law and does not B–, 27 I&N Dec. at 334 (‘‘To be would warrant re-evaluation under violate an alien’s due process right cognizable, a particular social group well-established principles, see Brand regarding an application for relief or must ‘exist independently’ of the harm X, 545 U.S. at 982; see also Amaya-De protection from removal. asserted in an application for asylum or Sicaran, 2020 WL 6373124 at *5 (‘‘The Some commenters objected to the statutory withholding of removal.’’); see Attorney General’s [anti-circularity procedural requirement that an alien generally Matter of M–E–V–G–, 26 I&N formulation] in Matter of A–B– is not must initially define the proposed Dec. at 243 (‘‘The act of persecution by arbitrary and capricious.’’). particular social group as either part of the government may be the catalyst that the record or with the application. The The Departments disagree with INA directs the Attorney General to causes the society to distinguish [a commenters’ concerns about due collection of individuals] in a establish procedures for the process violations with respect to the consideration of asylum applications, meaningful way and consider them a rule’s requirement that, while in distinct group, but the immutable INA 208(d)(1), 8 U.S.C. 1158(d)(1), and proceedings before an immigration regulations already require both an characteristic of their shared past judge, an applicant must ‘‘first define experience exists independent of the the proposed particular social group as 43 Asylum is a discretionary benefit demonstrated persecution.’’). In response to part of the asylum application or by the text of the statute that states the Departments commenters’ assertions that the otherwise in the record’’ or ‘‘waive any ‘‘may grant asylum,’’ INA 208(b)(1)(A), 8 U.S.C. Convention allows for particular social claim based on a particular social group 1158(b)(1)(A) (emphasis added); Dep’t of Homeland groups that do not exist independently Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1965 n.4 formulation that was not advanced.’’ To (2020) (‘‘A grant of asylum enables an alien to enter of the persecution, and that this rule the extent that this requirement the country, but even if an applicant qualifies, an reflects a ‘‘departure’’ from the current allegedly ‘‘goes further than’’ Matter of actual grant of asylum is discretionary.’’), and particular-social-group adjudication, the W–Y–C–& H–O–B–, 27 I&N Dec. 189, as provides authority to the Attorney General and Secretary of Homeland Security to limit and Departments reiterate that ‘‘[t]he the commenter alleges, this requirement ‘independent existence’ formulation’’ condition, by regulation, asylum eligibility under is merely a codification of the INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(2)(C), has existed for some time and ‘‘has been longstanding principle that arguments (d)(5)(B). Courts have found that aliens have no accepted by many courts.’’ 85 FR at cognizable due process interest in the discretionary not made in front of an immigration benefit of asylum. See Yuen Jin, 538 F.3d at 156– 36278; see, e.g., Perez-Rabanales v. judge are deemed waived for purposes Sessions, 881 F.3d 61, 67 (1st Cir. 2018) 57; Ticoalu, 472 F.3d at 11 (citing DaCosta, 449 of further review. See, e.g., In re F.3d at 49–50). In other words, ‘‘there is no (‘‘A sufficiently distinct social group J–Y–C–, 24 I&N Dec. 260, 261 n.1 (BIA constitutional right to asylum per se.’’ Mudric v. must exist independent of the 2007) (claim not raised below is not Att’y Gen. of U.S., 469 F.3d 94, 98 (3d Cir. 2006). persecution claimed to have been Thus, how the Departments choose to exercise their appropriate to consider on appeal). suffered by the alien and must have authority to limit or condition asylum eligibility Contrary to commenters’ concerns, and an adjudicator’s consideration of an applicant’s existed before the alleged persecution conduct in relation to asylum eligibility do not began.’’); Lukwago, 329 F.3d at 172 the rule does not violate notions of implicate due process claims.

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application for an alien to seek asylum, accepting the immigration judge’s duty but as discussed above, that is simply 8 CFR 208.3(a) and 1208.3(a), and that as described by the cited case law, this not the case. Adjudicators are the application be completed in full to is not in conflict with the rule, as the experienced with addressing the be filed, id. 208.3(c)(3) and 1208.3(c)(3). rule clearly explains by regulation what substance rather than the form of a To the extent that some commenters’ an applicant must do to demonstrate a claim, and articulation deficiencies will concerns regarded the exactness with cognizable particular social group, a have an opportunity for correction which an alien must define the concept which was previously before an immigration judge renders a particular social group, the Departments articulated in disparate BIA decisions decision. note that most asylum applicants, 87 that have been interpreted differently by The Departments also acknowledge percent, have representation, EOIR, the various circuits. Additionally, even commenters’ concerns about the ‘‘ever Current Representation Rates (Oct. 13, if, as stated in Jacinto, an immigration changing landscape’’ of particular- 2020), https://www.justice.gov/eoir/ judge has a duty to fully develop the social-group law and the due process page/file/1062991/download, and that record, this does not obviate the concerns associated with that. The aliens, if of limited English proficiency, applicant’s burden of demonstrating at ‘‘ever-changing landscape’’ is, in fact, a are able to avail themselves of the least prima facie eligibility for the relief principal animating factor behind this resources provided to them by the which he or she is seeking prior to rulemaking, as the Departments believe government that detail pro bono or low proceeding to a more intensive hearing. the rule will function as a ‘‘hard reset’’ cost alternatives. Regarding commenters’ concerns on the divergent—and sometimes One commenter worried that an alien focused on the ability for aliens to seek contradictory—case law regarding would have to ‘‘expertly craft arguments redress after an improper particular particular social groups over the past in the English language in a way that social group was presented based on several years in lieu of clearer satisfies highly technical legal ineffective assistance of counsel, the guidelines that are both reasonable and requirements.’’ The Department Departments note that the rule is easier for adjudicators and applicants disagrees that this is what the consistent with both practice and alike to follow. In particular, the current regulations require. As an initial point, applicable law. If a particular social state of case law may make it confusing nothing in the rule requires an alien to group is not presented because the alien for applicants to appreciate what is or craft arguments when applying for did not tell his or her counsel about it, is not a cognizable group, and the rule asylum. Aliens, with or without then there has been no ineffective directly addresses that concern by representation, have filled out asylum assistance on the part of counsel. If the providing clear definitions that should applications for decades, including by alien did provide his or her counsel allow for more effective consideration of stating particular social groups as a with a particular social group and meritorious claims. In short, providing basis for the asylum claim. Commenters counsel elected not to present it as a clearer guidance should reduce due have not submitted any evidence or strategic choice, then there is no basis process concerns, rather than increase alleged any change in an alien’s ability to reopen the proceedings. See In re B– them. to complete the application over the B–, 22 I&N Dec. 309, 310 (BIA 1998) Similarly, the Departments disagree preceding 40 years, and the (‘‘subsequent dissatisfaction with a that this rulemaking will be harmful to Departments are unaware of any reasons strategic decision of counsel is not pro se respondents. Although there are or allegations that aliens are now less grounds to reopen’’); cf. Matter of comparatively few pro se asylum capable of filling out an application— Velasquez, 19 I&N Dec. 377, 382 (BIA applicants as an initial matter, EOIR, including stating a particular social 1986) (concession of attorney is binding Current Representation Rates (Oct. 13, group, if appropriate—that has been on an alien absent egregious 2020), https://www.justice.gov/eoir/ used for years. An alien simply has to circumstances). Nevertheless, the page/file/1062991/download, the state in the application why the alien is Departments recognize there may be Departments believe that this regulation afraid. As noted in the NPRM, the unique ‘‘egregious circumstances’’ in will provide clarity to all respondents, specific form of the delineation will not which reopening based on ineffective including those who are pro se. That be considered over and above the assistance of counsel may be warranted, clarity will also allow immigration substance of the alleged particular social provided that the appropriate judges to better consider pro se claims group. Further, if there are deficiencies, procedural requirements for such a and ensure that the record is developed the alien will be provided an claim are observed. See Matter of appropriately consistent with the law. opportunity to correct them. Nothing in Lozada, 19 I&N Dec. 637, 639 (BIA The Departments believe that this the rule requires aliens to ‘‘craft 1988). Thus, the Departments are clarity will also assist immigration arguments’’ meeting ‘‘highly technical revising the final rule to account for judges in their adjudications, contrary to legal requirements,’’ and commenters’ such a scenario, though they expect commenters’ assertions. The suggestions to the contrary are simply such claims to be rare. Departments also disagree with not consistent with either the rule and The Departments disagree with the commenters’ statements that reducing the longstanding practice. commenters’ fairness concerns with the amount of time that adjudicators One commenter indicated that it was respect to the rule’s requirement that must spend evaluating claims is an the asylum officer’s or immigration applicants define the proposed improper purpose for the rule. The judge’s duty to assist in developing the particular social group as part of the Departments contest allegations that record, citing section 240(b)(1) of the asylum claim. As an initial point, they may not take regulatory action to Act, 8 U.S.C. 1229a(b)(1); Jacinto, 208 asylum applicants have provided help improve efficiencies with F.3d at 734 (an immigration judge has definitions of alleged particular social immigration adjudications. Regardless, the duty to fully develop the record groups in asylum applications for many as noted in the NPRM, reducing the where a respondent appears pro se); and years, and there is no evidence of any amount of time that adjudicators must Agyeman v. INS, 296 F.3d 871, 877 (9th recent change that would preclude them spend evaluating claims and more Cir. 2002) (an immigration judge must from doing so. The commenters’ uniform application of the law are two adequately explain the procedures to concerns may be based on an inaccurate additional benefits to ‘‘providing clarity the respondent, including what he must belief that the rule requires legal to [the particular social group] issue.’’ prove to prevail at the hearing). Even precision of a particular social group, 85 FR at 36279.

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The Departments note commenter characteristics, and nothing in the rule The organization noted that if a gang concerns that the rule does not create a changes that. The Departments are maintains that a child forcibly recruited regulatory requirement for immigration unaware of any law requiring all asylum is a member for life, the child would be judges to clarify the particular social claims from minors, mentally ill regarded as a traitor for trying to leave group for the record and instead allows persons, or incompetent aliens to be the gang at a later time and would have for immigration judges to pretermit granted or establishing a categorical rule a reasonable basis to fear for his or her without holding an evidentiary hearing. that each of those groups, regardless of life. The Departments note that the asylum any other characteristics, necessarily One organization alleged that the rule application itself, which the applicant states a cognizable particular social would change the law ‘‘without must sign attesting to the application’s group. The Departments are also explanation or justification’’ by accuracy, and in which the applicant unaware of any blanket exceptions to overturning the decisions of multiple has had the opportunity to list his or her statutory eligibility for asylum for these Federal courts of appeals. The particular social group, is already part of identified groups. The rule does not organization specifically referenced the record without any further need for change any established law regarding Urbina-Mejia v. Holder, 597 F.3d 360 the immigration judge to clarify. minors, e.g., INA 208(b)(3)(C), 8 U.S.C. (6th Cir. 2010) and Benitez Ramos v. Because the burden is always on the 1158(b)(3)(C), or those who lack mental Holder, 589 F.3d 426 (7th Cir. 2009). asylum applicant to establish eligibility, competency, e.g., Matter of M–A–M–, 25 The organization claimed this would be INA 208(b)(1)(B), 8 U.S.C. 1158(b)(1)(B), I&N Dec. at 480, 481–83 (holding that contrary to the stated goal of the and because the immigration judge must immigration judges should ‘‘consider ‘‘laundry list,’’ which is legal remain a neutral arbiter of the claim, indicia of incompetency throughout the consistency. See 85 FR at 36278. The EOIR, Ethics and Professionalism Guide course of proceedings’’ and implement organization also contended that the for Immigration Judges 2 (Jan. 26, 2011), appropriate safeguards, where rule would be contrary to the intent https://www.justice.gov/sites/default/ necessary). In short, the rule provides behind the asylum bars, which preclude files/eoir/legacy/2013/05/23/Ethicsand clarity for asylum claims relevant to all asylum based on a range of criminal ProfessionalismGuideforIJs.pdf (‘‘An aliens and does not alter any existing conduct but ‘‘pointedly’’ do not Immigration Judge shall act impartially accommodations generally made for the preclude relief on account of previous and shall not give preferential treatment identified groups. Further, because each gang membership. INA 208(b)(2)(A)–(B), to any organization or individual when asylum application is adjudicated based 8 U.S.C. 1158(b)(2)(A)–(B). The adjudicating the merits of a particular on its own facts and evidentiary support organization also claimed the rule is case.’’), it would not be appropriate for and because the rule does not contrary to congressional intent, the immigration judge to assist the alien categorically rule out specific claims, claiming it makes no attempt to explain in crafting his or her claim. commenters’ concerns about the effects ‘‘why the statutory bars’’ on particular Nevertheless, immigration judges are of the rule on broad, undifferentiated former persecutors ‘‘should be extended experienced and well-trained categories without reference to specific by administrative interpretation to adjudicators who are adept at claims are conclusory, conjectural, former members of gangs.’’ Benitez understanding the substance of a claim unfounded, and wholly and inherently Ramos, 589 F.3d at 430. even if it is not perfectly articulated. speculative. Response: The Departments note that Moreover, an alien will have 10 days to the case cited by the commenter, 4.1.1. Past or Present Criminal Activity respond to any attempt to pretermit an Lukwago, 329 F.3d 157, which the or Association (Including Gang application as legally insufficient, and commenter alleges recognized the Membership) there is no expectation that immigration likelihood of a cognizable particular judges will fail to follow the rule’s Comment: One organization noted social group involving former child requirements on that issue. In short, the that at least one court has recognized soldiers, was published in 2003, well Departments do not expect immigration asylum claims from former child before the now-codified test for judges to abdicate their duties to the law soldiers forced to commit bad acts, cognizability had been developed in in considering an applicant’s asylum citing Lukwago, 329 F.3d at 178–180. Matter of S–E–G–, 24 I&N Dec. at 585– claim. The organization also stated that the 86 and Matter of E–A–G–, 24 I&N Dec. The Departments disagree with United States has enacted the Child at 594–95. See Matter of M–E–V–G–, 26 commenters’ concerns that the rule, in Soldiers Accountability Act, Public Law I&N Dec. at 236–37 & n.11. Accordingly, their estimation, violates the 110–340, imposing criminal and this decision does not lend support to Rehabilitation Act of 1973, 29 U.S.C. immigration penalties for those who use the commenter’s claim. The 794, because it does not provide child soldiers. See 18 U.S.C. 2442. The Departments further note, however, that exceptions for minors, mentally ill organization emphasized that children the court in Lukwago acknowledged that persons, or individuals otherwise recruited into other types of criminal ‘‘given the ambiguity of the [term lacking competency.44 The Departments acts, like gang activity, ‘‘are not ‘‘particular social group’’], [the court’s] note that no alien is excluded from materially different from the children role is limited to reviewing the BIA’s applying for asylum—nor excluded who fight on the front lines of conflicts interpretation, using Chevron deference from participating in processes to in other parts of the world.’’ The to determine if it is a ‘‘permissible adjudicate such an application—on organization concluded by encouraging construction of the statute.’’ Lukwago, account of a disability. Further, all the government to extend its opposition 329 F.3d at 171. Additionally, the Child applicants for asylum are adjudicated to the use of child soldiers to ‘‘a Soldiers Accountability Act is unrelated under the same body of law, regardless willingness to protect children fleeing to this rulemaking. of any particular individual from all types of forced criminal Although past activity is an activity.’’ immutable characteristic, immutability 44 The Departments note that the Rehabilitation Another organization emphasized that alone is not sufficient to establish a Act applies to individuals with disabilities, and the past activity is an immutable cognizable particular social group; status of being a minor does not automatically characteristic that ‘‘cannot be undone,’’ particularity and social distinction are qualify someone as an ‘‘individual with a disability’’ under the statutory definition of that noting that an individual’s personal also required. See Matter of S–E–G–, 24 term. 29 U.S.C. 705(2). biographical history cannot be changed. I&N Dec. at 585–86; Matter of E–A–G–,

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24 I&N Dec. at 594–95; Matter of M–E– 4.1.2. Presence in a Country With particular claim. See Alvarez-Lagos v. V–G–, 26 I&N Dec. at 237. Generalized Violence or a High Crime Barr, 927 F.3d 236, 251 (4th Cir. 2019); The Departments disagree with Rate Zavaleta-Policiano v. Sessions, 873 F.3d commenters that the rule would Comment: One commenter objected 241, 248 (4th Cir. 2017); Crespin- undermine establishing legal generally to the fact that the rule Valladares v. Holder, 632 F.3d 117, 127 consistency and uniformity in the excludes asylum seekers coming from (4th Cir. 2011). Another organization alleged that the immigration laws, as it should ‘‘a country with generalized violence or ‘‘social distinction’’ requirement makes encourage such consistency across all a high crime rate,’’ as the commenter it nearly impossible to develop a circuits by providing much-needed believes this to be irrelevant. The cognizable particular social group that guidance on an ambiguous term in the commenter stated that the restriction does not reference the asylum seeker’s Act. In fact, the circuits are themselves appears designed to target individuals country of origin. As a result, the split on the issue of whether former from specific countries and runs organization claimed the rule would gang membership is cognizable as a contrary to the purpose of asylum. The ‘‘upend’’ section 208 of the Act, 8 U.S.C. particular social group. Compare commenter stated that ‘‘[i]t is natural’’ Martinez v. Holder, 740 F.3d 902, 910– 1158, by preventing individuals fleeing for people to flee countries with ‘‘the most violent countries in the 12 (4th Cir. 2014) (former member of a violence that the governments are criminal street gang may be a particular world’’ from receiving asylum or unable to control. One organization withholding of removal. The social group) and, Benitez-Ramos v. claimed the restriction will have a organization also contended that the Holder, 589 F.3d 426, 430–31 (7th Cir. prejudicial impact on asylum seekers ‘‘generalized violence’’ category is 2009) (same), with Gonzalez v. U.S. from Central America. Another arbitrary to the extent it attempts to Att’y Gen., 820 F.3d 399, 405 (11th Cir. organization specifically referenced the codify the statement in Matter of A–B– 2016) (agreeing with First Circuit that high crime rate in many African that particular claims are unlikely to former gang members do not constitute countries, claiming that violence is satisfy the statutory grounds for a cognizable ‘‘particular social group’’); ‘‘rampant’’ due to ‘‘national security demonstrating government inability or Cantarero v. Holder, 734 F.3d 82, 85–86 forces’’ and ‘‘copycat violators.’’ unwillingness to control the (1st Cir. 2013) (‘‘The BIA reasonably Another commenter stated generally persecutors. Matter of A–B–, 27 I&N Dec. concluded that, in light of the manifest that ‘‘[t]he choice for them was to be at 320. The organization claimed that humanitarian purpose of the INA, killed and/or raped or to risk the attempting to codify that statement Congress did not mean to grant asylum hardships of seeking asylum in the conflates two distinct elements of the to those whose association with a U.S.,’’ alleging that the frequency of asylum test, as the question of whether criminal syndicate has caused them to these types of abuses does not make it the government can control persecutors run into danger.... Such recognition reasonable to exclude them from is distinct from whether a particular would reward membership in an eligibility for asylum claims. One social group is cognizable. The organization that undoubtedly wreaks organization claimed the restriction organization also alleged that the social harm in the streets of our country. would unfairly impact LBGTQ+ Departments do not acknowledge or It would, moreover, offer an incentive individuals who are ‘‘disproportionately justify this conflation. for aliens to join gangs here as a path to victimized’’ by violent crime and Response: The Departments legal status.’’); and Arteaga v. Mukasey, gender-based violence. acknowledge commenters’ points that 511 F.3d 940, 945–46 (9th Cir. 2007) One organization noted that it would generalized violence may be a driving (‘‘We cannot conclude that Congress, in be ‘‘difficult if not impossible’’ to meet force behind many people fleeing their offering refugee protection for the three-prong test found in Matter of home countries. Although the suffering individuals facing potential persecution M–E–V–G–, 26 I&N Dec. at 237, using a caused by such conditions is regrettable, through social group status, intended to claim in which the particular social the Departments note that asylum was include violent street gangs who assault group is based on ‘‘presence in a county never intended to protect individuals people and who traffic in drugs and with generalized violence or a high from generalized violence; instead, it commit theft.’’). See also Cong. Research crime rate.’’ However, the organization was designed to protect those from Serv., Asylum and Gang Violence: Legal expressed concern that this restrictive violence perpetrated upon them on the Overview 20 (Sept. 5, 2014) (‘‘Granting language (which it claims is not directly basis of a protected ground, as well as asylum to aliens based on their related to the particular social group other qualifying requirements. See membership in groups made up of definition at issue) would likely cause Harmon v. Holder, 758 F.3d 728, 735 former gang members is more adjudicators to deny asylum (6th Cir. 2014) (‘‘General conditions of complicated in that several Federal applications solely because the rampant violence alone are insufficient courts of appeals have evidenced at applicant came from a country with a to establish eligibility.’’). least some willingness to view former high crime rate, even if the applicant Although circuit courts may not have gang members as a particular social were to articulate a particular social been clear whether asylum claims based group, while others have suggested that group unrelated to the crime rate. on fear of generalized violence or high granting asylum to those who belong to One organization claimed the rule is crime rates are not cognizable on organizations that have perpetrated acts contrary to established case law particular social group grounds or on of violence or other crimes in their recognizing that presence in a country nexus grounds (or on both home countries is contrary to the with generalized violence or a high grounds),45 see, e.g., Melgar de Torres v. humanitarian purposes of asylum.’’). To crime rate is ‘‘irrelevant’’ to evaluating Reno, 191 F.3d 307, 314 (2d Cir. 1999) the extent that commenters assert that an asylum seeker’s claim. The (‘‘The increase in general crime that has circuit case law conflicts with the organization noted that the Fourth been documented in the record does not Departments’ rule, such conflicts would Circuit has explained in at least three warrant re-evaluation in appropriate published opinions that criminal 45 Although the Departments have placed this cases by the circuits under well- activities of a gang affecting the category under the definition of ‘‘particular social group,’’ it may also be appropriately considered established principles. See Brand X, 545 population as a whole are ‘‘beside the under the definition of ‘‘nexus’’ as well, as the lists U.S. at 982. point’’ in evaluating an asylum seeker’s under both definitions are nonexhaustive.

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lend support to an asylum claim since by general violence or high crime rates sufficient evidence to establish a nexus a well-founded fear of persecution must generally do not meet this threshold. to a protected ground. However, these be on account of an enumerated ground The Departments do not disagree with cases do not endorse a position that set forth in the Act, and general crime commenters who suggested that it claims rooted in generally violent conditions are not a stated ground.’’); would be natural for individuals to flee conditions or high crime rates, without Umana-Ramos v. Holder, 724 F3d 667, countries where their governments more, would be sufficient to warrant a 670 (6th Cir. 2013) (‘‘General conditions could not control violence. Indeed there grant of asylum. See Alvarez-Lagos, 927 of rampant gang violence alone are are myriad reasons that would F.3d at 251; Zavaleta-Policiano, 873 insufficient to support a claim for encourage or compel an individual to F.3d at 248; Crespin-Valladares, 632 asylum.’’), they have been consistent leave his or her home country. However, F.3d at 127. that such fears are not a cognizable basis a government’s inability or 4.1.3. Being the Subject of a Recruitment for asylum, even, contrary to one unwillingness to control violence is but Effort by Criminal, Terrorist, or commenter, in the Fourth Circuit. See, one factor for asylum eligibility with Persecutory Groups e.g., D.M. v. Holder, 396 F. App’x 12, 14 respect to claims of persecution by non- (4th Cir. 2010) (‘‘As found by the Board, state actors. Applicants must meet all Comment: One organization noted the Petitioners have failed to show that eligibility factors and merit a positive that the rule narrows the definition of they are at a greater risk of being victims exercise of discretion to warrant relief. credible fear by ‘‘eliminating claims to of violent acts at the hands of criminal The Departments agree with protection from fear of gangs or gangs than any other member of the commenters who stated that it would be terrorists.’’ Another organization general population in El Salvador. We difficult for applicants whose particular claimed there is no support in the cases have clearly held that a fear of general social group is predicated upon general cited by the NPRM for making gang violence and unrest is inadequate to violence or high crime rates in the recruitment-related particular social establish persecution on a protected country of origin to demonstrate that groups generally non-cognizable, ground.’’). their proposed group meets all three emphasizing that the NPRM does not The Departments believe that this requirements of immutability, provide any evidence as to why the rule—which establishes that particular- particularity, and social distinction. courts should not continue to consider social-group claims grounded in an However, the Departments do not recruitment-based particular social applicant’s presence in a country with believe that a regulatory standard stating groups on a case-by-case basis. general violence or high crime rates, so would lead adjudicators to deny One organization noted that the U.S. without more, will generally not be applications where the applicant has government recognizes that children are cognizable—is consistent with the Act, articulated a particular social group often targets for gang recruitment and international law, and case law, unrelated to the crime rate. Rather, the gang violence in their home countries. particularly in connection to the Departments believe that this The organization expressed concern definition of particular social group rulemaking offers clear guidance to regarding the rule’s presumption that discussed, supra, which requires that adjudicators and parties that such ‘‘attempted recruitment’’ or ‘‘private the group exist independently of the proposed groups, without more, will not criminal acts’’ are not sufficient for alleged harm. Relatedly, commenters’ be cognizable. See 85 FR at 36278 (‘‘The asylum, contending this ignores the allegations that the rule was crafted in proposed rule would further build on reality that many child asylum seekers response to the frequency of types of the BIA’s standards and provide clearer flee their home countries ‘‘precisely harm suffered are misguided. With guidance to adjudicators regarding because the government is unable or respect to establishing a nexus to a whether an alleged group exists and, if unwilling to control non-state actors protected ground, such as particular so, whether it is cognizable as a like terrorist or gang organizations who social group, it is not the frequency or particular social group in order to would recruit or harm children and severity of abuses that would render ensure the consistent consideration of families.’’ such claims insufficient, but rather the asylum and statutory withholding One organization noted that UNHCR reasons for the abuse. Asylum is claims.’’). Furthermore, immigration has emphasized the importance of intended to protect individuals who judges and asylum officers undergo recognizing claims based on resistance have suffered abuses for a specific training in which they learn to to and desertion from non-state armed reason, on account of a protected adjudicate asylum claims, including the groups, explaining that gangs may try to ground. Cf. Delgado-Ortiz, 600 F.3d at cognizability of particular social groups. harm individuals who have resisted 1151 (‘‘Asylum is not available to The Departments are confident that gang activity, are opposed to gang victims of indiscriminate violence, adjudicators are aptly prepared, through practices, or attempt to desert a gang. unless they are singled out on account training and experience, to adjudicate Response: The Departments disagree of a protected ground.’’). asylum claims without confusing the with the commenter’s assertion that the The Departments further note that an particular-social-group analysis with rule eliminates any claims to protection. alien coming from a country with other facets of asylum eligibility As stated above, the rule will not generalized violence or high crime rates requiring a separate analysis. eliminate any particular-social-group is not precluded from asylum on that With respect to commenter statements claims. Rather, it sets forth a list of basis alone; the rule merely establishes that this rule is contrary to established social group claims that will generally that a particular-social-group claim case law which, the commenter stated, not be, without more, cognizable. This premised upon general violence or high established that a country’s generalized does not foreclose the possibility that an crime rates will not, without more, violence and high crime rates were applicant could pursue or prevail on a prevail. To succeed on a particular- ‘‘irrelevant’’ to the applicant’s claim, the claim in which they were the subject of social-group claim, an applicant must commenter appears to have conflated a recruitment effort by a criminal, demonstrate that he or she has been or relevance for sufficiency. The Fourth terrorist, or persecutory group. As noted will be targeted on the basis of Circuit, in the cited cases, determined by the NPRM, ‘‘such facts could be the immutable, particular, and socially that generalized violence or high crime basis for finding a particular social distinct characteristics, and the rate did not undermine claims where group, given the fact- and society- Departments believe that groups defined the court determined there was specific nature of this determination.’’

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85 FR at 36279; see also Grace II, 965 Another organization contended that concern that adjudicators would likely F.3d at 906 (‘‘[T]he record in this case there is no legal basis or support in the deny asylum based on this language, does not support the asylum seekers’ NPRM for precluding courts from even though the rule specifies that it argument that [the Departments] have analyzing particular social groups applies ‘‘in the context of analyzing a erected a rule against asylum claims involving wealth on a case-by-case particular social group.’’ involving allegations of domestic and/or basis. The organization referenced the Another organization expressed gang violence.’’). However, as a general BIA’s decision in Matter of A–M–E– & J– concern that governments could attempt rule, such groups will not be cognizable, G–U–, 24 I&N Dec. 69 (BIA 2007), aff’d to remove U.S. or international consistent with existing Attorney Ucelo-Gomez v. Mukasey, 509 F.3d 70 sanctions by demonstrating that General and BIA precedent. Matter of (2d Cir. 2007) (cited at 85 FR at 36279), ‘‘private actors’’ were carrying out A–B–, 27 I&N Dec. at 335 (‘‘Victims of stating the fact that the BIA held persecution against political dissidents gang violence often come from all thirteen years ago that ‘‘affluent and religious minorities. The segments of society, and they possess no Guatemalans’’ is not a cognizable organization noted that these distinguishing characteristic or concrete particular social group ‘‘does not even governments could use propaganda to trait that would readily identify them as begin to support the NPRM’s sweeping ‘‘inflame local residents against a members of such a group’’); Matter of S– proposal to bar all PSGs that mention particular group,’’ using the decimation E–G–, 24 I&N Dec. at 584 (‘‘[Y]outh who wealth.’’ of the Tutsis population in Rwanda as have been targeted for recruitment by, Response: As noted in the NPRM, a an example. According to the and resisted, criminal gangs may have a social group which is founded upon organization, governments could claim shared past experience, which, by being targeted for criminal activity for this was not a human rights violation definition, cannot be changed. However, financial gain or for perceptions of because ‘‘government soldiers this does not necessarily mean that the wealth or affluence are generally, themselves took no part in the attack.’’ shared past experience suffices to define without more, unable to meet the well- Another organization emphasized that a particular social group for asylum established requirements for violence is sometimes outside the state’s purposes.’’); Matter of E–A–G–, 24 I&N cognizability. 85 FR at 36279; see Matter reach, noting that violent activity can Dec. at 594–95 (determining that of A–M–E– & J–G–U–, 24 I&N Dec. at 75. occur where weak governments use ‘‘persons resistant to gang membership’’ With respect to commenters who allied armed groups to provide security. is not cognizable); see also Constanza v. presented specific examples that they Response: As discussed above with Holder, 647 F.3d 749, 754 (8th Cir. alleged illustrated persecution of classes respect to particular social groups 2011); see also Lizama v. Holder, 629 of people on the basis of perceived defined by general violence or high F.3d 440, 447 (4th Cir. 2011); Larios v. wealth or influence, as well as crime rates, the Departments agree with Holder, 608 F.3d 105, 109 (1st Cir. comments suggesting that the commenters that it would be difficult to 2010); Lushaj v. Holder, 380 F. App’x Departments are doing away with demonstrate that particular social 41, 43 (2d Cir. 2010); Barrios v. Holder, individualized analysis, the groups defined by interpersonal 581 F.3d 849, 855 (9th Cir. 2009). The Departments note again that there may disputes of which governmental Departments do not dispute that exist examples of social groups based on authorities were unaware or children may be targets for gangs, gang wealth that are cognizable, and that the uninvolved, without more, are recruitment, and gang violence in their listed social groups have been identified cognizable. However, immigration countries of origin. However, whether as generally not cognizable, without judges and asylum officers undergo such applicants for asylum have been more. However, ‘‘the regulation does not rigorous training on how to adjudicate harmed or fear harm from the gangs is foreclose that, in rare circumstances, asylum claims, including the only one part of the overall asylum such facts could be the basis for finding cognizability of particular social groups. inquiry. Even a further showing that the a particular social group, given the fact- The Departments are confident that government is unwilling or unable to and society specific nature of this adjudicators are aptly prepared to protect the applicant would not be determination.’’ 85 FR at 36279; see adjudicate asylum claims without enough to merit a grant of asylum Grace II, 965 F.3d at 906 (‘‘[T]he record confusing the particular social group without meeting the other eligibility in this case does not support the asylum analysis with other facets of asylum requirements. As discussed above, an seekers’ argument that [the eligibility requiring a separate analysis. applicant must also demonstrate that Departments] have erected a rule against The Departments fail to see how setting the harm he or she suffered or fears is asylum claims involving allegations of forth a social group that the commenter on account of protected ground, such as domestic and/or gang violence.’’). believes is unlikely to be presented is grounds for the commenter’s objection membership in a particular social group. 4.1.5. Interpersonal Disputes of Which to the rule. 4.1.4. The Targeting of the Applicant for Governmental Authorities Were The Departments do not address Criminal Activity for Financial Gain Unaware or Uninvolved comments raising concerns about Based on Perceptions of Wealth or Comment: One organization noted international sanctions or holding Affluence that the rule would limit particular international governments accountable Comment: Another organization social groups based on both for alleged human rights violations, as claimed that history is full of examples ‘‘interpersonal disputes of which the Departments’ implementing statutes of persecution of classes of people on governmental authorities were unaware and regulations are unrelated to such the basis of perceived wealth or or uninvolved’’ and ‘‘private criminal matters, which are more properly influence. The organization stated that, acts of which governmental authorities handled by the Department of State. under the proposed rule, the members were unaware or uninvolved.’’ The Comments raising concerns about of the kulak class who were killed after organization emphasized that it is non-governmental violence that occurs the Russian Revolution or the many unlikely that a particular social group ‘‘outside the state’s reach’’ or in cases wealthy and middle class Cubans who framed in this way would be cognizable; where ‘‘weak governments use allied fled the Cuban Revolution would not however, because the fact pattern is armed groups to provide security’’ do have been recognized as persecuted included in the rule as a ‘‘limiting not alter the Departments’ social groups. concept,’’ the organization expressed determination that particular social

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groups predicated upon interpersonal puts people at risk of death. The ‘‘interpersonal’’ and ‘‘private’’ categories disputes of which governmental organization concluded by alleging that to domestic and other gender-based authorities were unaware or the rule would send these individuals violence would violate constitutional uninvolved, without more, are generally back ‘‘into mortal danger.’’ equal protection principles because the not cognizable. The commenter’s Another organization claimed this presumption created by these categories statement about non-governmental portion of the rule would violate the would have a disproportionate effect on violence that occurs ‘‘outside the state’s APA in at least six different ways. First, women (as women are much more likely reach’’ is not sufficiently specific for the the organization alleged that the rule is to experience violence by an intimate Departments to draw any conclusion contrary to law, as the INA does not partner). about its relevancy to such social state or imply that interpersonal or Similarly, another organization noted groups. Although the Departments must ‘‘private’’ acts cannot give rise to that this portion of the rule is especially be explicit that they are not endorsing asylum. Instead, the statute makes clear damaging to gender and LGBTQ+ the cognizability of such groups, the that such acts can do so if they ‘‘rise to related claims because ‘‘many are rooted commenter’s proposed scenario the level of persecution, are taken on in intimate partner or family violence regarding weak governments using account of a protected ground, and are that government actors choose to ignore allied armed groups clearly would not inflicted by actors the government is as private or family matters.’’ The involve governmental unawareness and unable or unwilling to control.’’ Second, organization emphasized the BIA’s is unlikely to involve personal the organization claimed that it is decision in Matter of A–R–C–G–, 26 I&N disputes.46 ‘‘manifestly unreasonable’’ to use the Dec. 338 (BIA 2014), holding that a particular social group analysis to Guatemalan woman should be granted 4.1.6. Private Criminal Acts of Which ‘‘place entire groups of persecutors asylum on the basis of abuse by her Governmental Authorities Were outside the asylum laws,’’ noting that former spouse, noting that this Unaware or Uninvolved the particular social group analysis is precedent has allowed many female Comment: One organization noted dependent on the nature of the group to asylum seekers from Central America to generally that the rule would remove which the survivor belongs rather than win cases. One organization stated that protections for individuals fleeing the identity of the persecutor. Third, the ‘‘the very indifference’’ of governmental violence from non-state actors. Another organization alleged that a general authorities to the plight of survivors of organization claimed that the rule’s prohibition of asylum in all situations gender-based violence proves that exclusion of acts ‘‘of which where the government is ‘‘uninvolved’’ persecution exists, emphasizing there is governmental authorities are unaware or in the persecution is ‘‘arbitrary and ‘‘no good reason’’ for denying the claims uninvolved’’ disproportionately affects contrary to law,’’ claiming that the of survivors who can show their the ability of children to seek asylum. substitution of ‘‘uninvolved’’ for government’s failure to protect them. The organization noted that the ability ‘‘unable or unwilling’’ would render Another organization claimed the rule of many children to access state large categories of previously ‘‘condemns women to endure various protection in their home country is meritorious claims ineligible. The forms of domestic- and gender-based dependent upon the adults in their organization also emphasized that the violence, stripping them of the lives, emphasizing that not all children rule would require survivors of humanitarian protection of the United have an adult to help them obtain persecution by non-state actors to report States.’’ The organization contended protection. The organization also noted persecution to authorities ‘‘even where that this ‘‘upends’’ the longstanding that some children who go directly to laws against gender-based violence are recognition and protection of particular government officials for protection may limited or non-existent.’’ The social groups, across circuits, on the be dismissed. One organization noted organization noted that current asylum following grounds: Femicide, Perdomo generally that it has ‘‘long been law allows applicants to submit v. Holder, 611 F.3d 662, 662 (9th Cir. determined’’ that the government does evidence as to why reporting this type 2010); honor killings, Sarhan v. Holder, not actually need to be aware of the of violence was impossible or 658 F.3d 649, 649 (7th Cir. 2011); female threats and that there is no requirement dangerous, claiming there is no genital mutilation, Mohammed v. to report the persecution to the legitimate justification for the Gonzales, 400 F.3d 785, 785 (9th Cir. government if doing so ‘‘would be futile prohibition of such evidence. 2005); arranged or inescapable or place the applicant at greater risk of Fourth, the organization claimed that marriages, Acosta Cervantes v. Barr, 795 harm,’’ citing Bringas-Rodriguez v. the NPRM’s use of the word ‘‘private’’ F. App’x 995, 995 (9th Cir. 2020); and Sessions, 850 F.3d 1051, 1062–72 (9th implicitly raises the ‘‘unable or ‘‘other forms of domestic violence,’’ Cir. 2017) (en banc) and Lopez v. U.S. unwilling’’ standard on some claims. Mun˜ oz-Ventura v. Barr, 799 F. App’x Att’y Gen., 504 F.3d 1341, 1345 (11th Fifth, the organization contended that 977, 977 (9th Cir. 2020). One Cir. 2007). Another organization the ‘‘interpersonal’’ category is ‘‘even organization contended that, by claimed that the rule disregards the more sweeping’’ and therefore contrary dismissing violence against women or ‘‘well-documented fact’’ that oppressive to the INA, claiming that the plain LGBTQ+ individuals as an governments utilize irregular forces for meaning of the ‘‘interpersonal’’ violence ‘‘interpersonal dispute,’’ the rule fails to the purpose of denying their actions. category would bar all asylum claims. recognize that gender-based violence is The organization emphasized that Sixth, the organization claimed the a ‘‘social means to subordinate rather chronic violence arises when a ‘‘interpersonal’’ and ‘‘private’’ categories than an individual problem’’ and government is unwilling or unable to violate the INA to the extent that, in the requires comprehensive responses. protect the life and liberty of its citizens, Departments’ view, they apply to Response: The Departments disagree claiming that this government inaction domestic or other gender-based that the rule is contrary to law. At the violence. The organization claimed this outset, the Departments acknowledge 46 Regarding the commenters’ specific example, is ‘‘at odds’’ with the evidence, which that the INA does not specify whether the Departments note that claims from Tutsis in clearly shows that this type of violence interpersonal or ‘‘private’’ acts can give Rwanda may also be framed in terms of race or nationality which are not defined in the rule and is ‘‘not simply a private matter based on rise to an asylum claim. While the are separate from claims based on a particular social personal animosity.’’ The organization actions of private actors are also group. also claimed that the application of the discussed elsewhere in this

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rulemaking,47 the Departments will now group is defined by private criminal acts behavior as a means of avoiding address concerns as they were raised of which governmental authorities were removal. specifically in the context of unaware or uninvolved, will generally Response: The Departments disagree establishing a particular social group. not be cognizable, as they, like all social that the terms ‘‘terrorist activity’’ or As the commenters contend, acts can groups defined by such acts, likely lack ‘‘terrorist association’’ are overbroad. give rise to asylum claims only if they the requisite particularity due to the The Departments are using the ‘‘terrorist are taken on account of a protected ‘‘broad swaths of society [that] may be activity’’ language that Congress clearly ground, such as ‘‘particular social susceptible to victimization’’ or social defined in the INA. See INA group.’’ And, as discussed above, the distinction to be cognizable. Matter of 212(a)(3)(B)(iii), 8 U.S.C. term ‘‘particular social group’’ is A–B–, 27 I&N Dec. at 335–36. Similarly, 1182(a)(3)(B)(iii). To the extent the ambiguous. As the Departments have set the Departments disagree with commenter alleges that the statutory forth a reasonable determination that commenter’s assertions that the rule definition itself is overbroad, such the term would generally not include, would implicitly raise the ‘‘unwilling or arguments are outside the scope of this without more, social groups predicated unable’’ standard, as the Departments rule. Moreover, the Departments do not upon private criminal acts of which believe that social groups defined by believe the phrase ‘‘terrorist governmental authorities were unaware private criminal acts of which association’’ is overly broad. The or uninvolved, such private acts would governmental authorities were unaware Departments intend for this provision to generally not be sufficient grounds for or uninvolved are not cognizable under apply to those who voluntarily asylum. See Matter of A–B–, 27 I&N Dec. the particular social group analysis of associate, or have previously voluntarily at 335 (‘‘groups defined by their immutability, particularity, and social associated, with a terrorist organization. vulnerability to private criminal activity distinction, irrespective of the The Departments believe the ordinary likely lack the particularity’’ required government’s inability or unwillingness meaning of the term provides sufficient for cognizability). to help, which is an independent factor definition for adjudicators to apply. See, The commenter’s allegations that the in considering asylum eligibility. e.g., ‘‘Associate’’ Definition, Merriam- rule violates the APA are predicated on With respect to commenters’ concerns Webster, https://www.merriam- presumptions that the rule categorically about this rule’s potential effect on webster.com/dictionary/associate excludes certain types of social group LGBTQ and gender-based-violence (defined as ‘‘join[ing] as a partner, claims. As stated above, ‘‘the regulation related claims, the Departments note friend, or companion’’ with an example does not foreclose that, in rare again that they have codified a long- of ‘‘They were closely associated with circumstances, such facts could be the standing test for determining each other during the war’’). basis for finding a particular social cognizability of particular social groups Although the Departments do not group, given the fact- and society and have set forth a list of common fact maintain data on the number of prior specific nature of this determination.’’ patterns involving particular-social- asylum grants based on a terrorism- 85 FR at 36279; see Grace II, 965 F.3d group claims that generally will not related particular social group, the at 906 (‘‘[T]he record in this case does meet those well-established Departments believe it is reasonable not support the asylum seekers’ requirements. The Departments did not that, as a general matter, persons argument that [the Departments] have first determine a set of groups that applying for asylum in the United States erected a rule against asylum claims should or should not be cognizable and cannot claim asylum based on their involving allegations of domestic and/or craft a rule around that determination. participation in, or association with, gang violence.’’). The Departments To the extent that commenters assert terrorism. For example, Congress believe that the listed social groups that circuit case law conflicts with the included certain terrorism-related generally fail to meet the requirements Departments’ rule, such conflicts would activities as a categorical bar from for cognizability, not because, as the warrant re-evaluation in appropriate asylum eligibility. See INA commenter alleged, of the identity of the cases by the circuits under well- 208(b)(2)(A)(v), 8 U.S.C. persecutor, but rather because such established principles. See Brand X, 545 1158(b)(2)(A)(v).48 Similarly, although groups are generally defined by the U.S. at 982. this is not a categorical bar to terrorism- based particular social groups, generally group members’ vulnerability to private 4.1.7. Past or Present Terrorist Activity disfavoring such groups is consistent criminal activity. See Matter of A–B–, 27 or Association I&N Dec. at 335. with this Congressional intent. The Departments note that social Comment: At least one commenter Finally, the Departments note that groups predicated on domestic or other raised concerns with the ‘‘past or association with past or current terrorist gender-based violence, insofar as the present terrorist activity or association’’ activity is at least as ‘‘anti-social’’ as base for not favorably adjudicating a association with criminal gang activity, 47 The Departments note that longstanding law particular social group. The commenter if not more so, and the latter has been has precluded private acts of violence as a basis for asserted that the terms ‘‘terrorist rejected as a basis for a particular social asylum or similar protection for many years. See, activity’’ and ‘‘terrorist association’’ e.g., Matter of Pierre, 15 I&N Dec. 461, 462–63 (BIA group by multiple courts. Cf. Arteaga, 1975) (strictly personal dispute between a husband were overbroad and, as a result, would 511 F.3d at 945–46 (‘‘We cannot and wife does not state a claim on account of race, result in unnecessary denials of asylum conclude that Congress, in offering religion, political opinion or membership in a claims. Moreover, the commenter stated refugee protection for individuals facing particular social group). Further, circuit courts have also held that private acts of violence are not a that the Departments did not provide potential persecution through social cognizable basis for asylum, though their decisions ‘‘empirical research’’ to support the group status, intended to include are sometimes rooted in other bases. See, e.g., Prado provision’s inclusion, but rather relied violent street gangs who assault people v. U.S. Att’y Gen., 315 F. App’x 184, 188 (11th Cir. on the ‘‘unproven’’ statement that and who traffic in drugs and commit 2008) (‘‘Ordinary criminal activity and acts of private violence are generally not ‘persecution’ allowing particular social groups within the meaning of 8 U.S.C. 1101(a)(42)(A).’’). defined by terrorist activity or 48 The Departments note that certain activities or The Departments’ consideration of private violence association would reward membership associations that trigger terrorism-related under the definition of particular social group in no in organizations that cause harm to inadmissibility grounds may potentially be the way precludes its consideration in connection with subject of discretionary group-based, situational, or the other requirements necessary for asylum, society and create a perverse incentive individual exemptions. In such cases, they would including nexus and persecution. to engage in reprehensible or illicit not constitute bars to asylum eligibility.

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theft.’’); Cantarero, 734 F.3d at 85–86 4.1.9. Status as an Alien Returning From asylum claims involving allegations of (‘‘The BIA reasonably concluded that, in the United States domestic and/or gang violence.’’). If light of the manifest humanitarian Comment: One organization noted applicants believe that their proposed purpose of the INA, Congress did not that the rule would generally not find a group as an alien returning from the mean to grant asylum to those whose particular social group to be cognizable United States meets one of the association with a criminal syndicate if based on ‘‘status as an alien returning exceptions to the general rule based on, has caused them to run into from the United States.’’ The as commenter’s proposed, the group danger.... Such recognition would organization expressed concern about meeting the particularity requirement, reward membership in an organization this, noting that there have been the applicants may propose such a that undoubtedly wreaks social harm in circumstances where ‘‘Westernized Iraqi group. The Department disagrees with the streets of our country. It would, citizens have faced persecution and comments that individuals returning moreover, offer an incentive for aliens to potential torture based on their from the United States can, generally, join gangs here as a path to legal perceived ties to the United States.’’ The status.... Accordingly, the BIA’s demonstrate that their group is organization emphasized that each sufficiently particular or socially interpretation merits our deference proposed particular social group should under Chevron.’’); Elien, 364 F.3d at 397 distinct. See, e.g., Reyes v. Lynch, 842 be evaluated on a case-by-case basis F.3d 1125, 1139 (9th Cir. 2016) (‘‘Such recognition unquestionably instead of being subjected to general would create a perverse incentive for (upholding BIA’s determination that a rules that would result in ‘‘blanket proposed social group of deportees ‘‘was [aliens] coming to or residing in the denials.’’ United States to commit crimes, thereby too amorphous, overbroad and diffuse Another organization claimed that because it included men, women, and immunizing themselves from ‘‘status as an alien returning from the deportation.... Moreover, the BIA has children of all ages, regardless of the United States’’ is on its face an length of time they were in the United never extended the term ‘social group’ ‘‘immutable, socially distinct, and to encompass persons who voluntarily States, the reasons for their removal, or particular’’ characteristic. The the recency of their removal’’); Lizama, engaged in illicit activities.’’). organization emphasized that past Consequently, the Departments decline 629 F.3d at 446 (rejecting proposed association as a former resident of the group of ‘‘young, Americanized, well-off to follow a suggestion that terrorist United States is similar to one’s association should generally be Salvadoran male deportees with membership in a family or one’s specific criminal histories who oppose gangs’’ as considered a cognizable particular history because it is a particular social group. ‘‘clearly fail[ing] to meet the required characteristic that cannot be changed. criteria’’ (internal quotations omitted)). 4.1.8. Past or Present Persecutory The organization alleged that this However, to the extent that commenters Activity or Association portion of the rule could result in the believe there may be exceptions to this denial of asylum to individuals general rule, ‘‘the rule does not foreclose Comment: One organization claimed persecuted due to their real or imputed that, in rare circumstances, such facts that the NPRM’s proposed bar on ‘‘past association with the United States by ‘‘a could be the basis for finding a persecutory activity,’’ 85 FR at 36279, is regime that is hostile to this country, or particular social group, given the fact- contrary to the APA in the same manner its culture and values.’’ and society specific nature of this as the proposed bar on past criminal One organization disagreed with the determination.’’ 85 FR at 36279; see conduct. The organization alleged that claim that any group based on Grace II, 965 F.3d at 905. listing a scenario involving past individuals returning from the United persecutory activity as generally non- States will be ‘‘too broad’’ to qualify as 4.2. Political Opinion cognizable would create even greater a particular social group, 85 FR at Comment: Commenters argued that uncertainty, however, because ‘‘past 36279, claiming this is ‘‘factually and the proposed definition of political persecutory activity’’ is not defined in legally erroneous.’’ The organization opinion is inconsistent with legislative the NPRM. alleged that, as a factual matter, the intent and international law, which, Response: Although the commenter’s number of individuals returning to some commenters asserted, require the term broad and unspecified allegations make countries from the United States is to be construed broadly. Specifically, a response difficult, the Departments do small. As a legal matter, the commenters asserted that Congress, in not believe this rulemaking is in organization claimed that whether a passing the Refugee Act of 1980, aimed violation of the APA for reasons given group is potentially large would not, by to align the United States definition of in both the NPRM and this final rule, itself, mandate the conclusion that the ‘‘refugee’’ with the United States’ and they reiterate that this rulemaking group is not particular. obligations under the 1967 Protocol does not impose any categorical bar as Response: The Departments reiterate relating to the Status of Refugees. suggested by the commenter. The once again that this rule does not Commenters provided excerpts from the Departments have provided descriptions foreclose the possibility of pursuing and House Report for the Refugee Act of and reasons for all the provisions and prevailing upon a particular social 1980 and UNHCR guidance stating the have established a reasonable basis for group claim defined by the applicant’s term should be construed broadly. the rule. With respect to the status as an alien returning from the Commenters also argued that Congress commenter’s concerns about what United States. ‘‘[T]he regulation does is the branch that holds the plenary conduct falls under the term ‘‘past not foreclose that, in rare circumstances, power and that the proposed edits to 8 persecutory activity,’’ the Departments such facts could be the basis for finding CFR 208.1(d) are an attempt ‘‘to do an note that this rulemaking, including the a particular social group, given the fact- end run around the legislative intent’’ of NPRM, sets forth clear guidelines about and society specific nature of this section 101(a)(42) of the Act, 8 U.S.C. what conduct constitutes persecutory determination.’’ 85 FR at 36279; see 1101(a)(42). activity, 85 FR at 36280–81, and thus, Grace II, 965 F.3d at 906 (‘‘[T]he record Commenters expressed concern that that this should serve as a guide for in this case does not support the asylum the proposed definition of political conduct involving past persecutory seekers’ argument that [the opinion is inconsistent with Federal activity. Departments] have erected a rule against court and BIA precedent. Commenters

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cited Cardoza-Fonseca, 480 U.S. 421, to One commenter stated that the United A commenter expressed concern that argue that the proposed definition of States Department of State recognized the Departments failed to recognize that ‘‘political opinion’’ is too narrow. One this reality in its 2019 Country Reports many asylum seekers flee their commenter also cited cases from the on Human Rights Practices. Other homelands because their governments United States Courts of Appeals for the commenters cited provisions of the are unable or unwilling to control non- Second, Third, and Ninth Circuits, UNHCR Guidelines on International state actors, including international which the commenter argued evidence Protection noting that gang-based and criminal organizations. The that the term political opinion should be gender-based claims can be valid. Departments do not disagree that this construed broadly. Another commenter Commenters also expressed concern may be the motivation for some aliens noted that Federal courts have with the ‘‘absent expressive behavior’’ to flee their homelands. However, that recognized political opinions based on language in proposed 8 CFR 208.1(d) fact alone does not create a basis for feminist beliefs, labor organizing, and 8 CFR 1208.1(d), asserting that protection under the immigration laws. environmental beliefs, support of section 208(b) of the Act, 8 U.S.C. Asylum and statutory withholding of student organizations, and gangs. With 1158(b), does not require protected removal are narrowly tailored—allowing respect to BIA precedent, one grounds to be expressed in a particular for the discretionary grant of protection commenter asserted that the NPRM way and that ‘‘political opinion,’’ not from removal in the case of asylum and incorrectly interpreted Matter of S–P–, ‘‘political activity’’ is the protected granting protection from removal in the 21 I&N Dec. 486 (BIA 1996), and that the ground. Commenters asserted that the case of withholding—to aliens who case actually instructs that the term proposed definition contradicts UNHCR demonstrate that they meet specific political opinion should be construed Guidance on expressing opinions. eligibility criteria. The asylum laws broadly. The commenter similarly Commenters argued that ‘‘absent were not created to address any asserted that the BIA decisions in Matter expressive behavior’’ is ‘‘antithetical to misfortune that may befall an alien. of D–V–, 21 I&N Dec. 77 (BIA 1993), and the concept of an imputed political Rather, asylum generally is available to Matter of N–M–, 21 I&N Dec. 526 (BIA opinion against a non-state individuals who are able to establish, 2011), support a broad reading of organization’’ and that it is inconsistent among other things, that the harm they political opinion. One commenter cited with Federal case law that has experienced or fear was (or there is a the third edition of the Webster’s New recognized imputed political opinions well-founded basis to believe would be) World College Dictionary (1997) to against gangs that fall outside of the inflicted on account of a protected argue that the definition of the word proposed definition of expressive ground. The rule will improve the ‘‘political’’ is unambiguously behavior. system by creating a clearer definition of understood to include more than just One commenter expressed concern political opinion, which, in turn, will opposition to a particular regime. that the proposed definition of political assist in the expeditious processing of Accordingly, the commenter argued, the opinion ‘‘frustrates the reliance meritorious claims. proposed definition of political opinion interests’’ of ‘‘thousands’’ of individuals Several commenters listed various contradicts the plain meaning of the whose asylum claims are based on opinions which, commenters’ opined, INA. political opinions under the current would no longer fit within the political Commenters expressed concern that understanding of the concept. The opinion category. The Departments political opinions not directly related to commenter expressed concern that acknowledge that the rule codifies a regime change would be considered individuals with pending applications specific definition for articulating invalid under the proposed definition. political opinion claims, though it also As an example, one commenter asserted would ‘‘have a much lower likelihood of incorporates existing case law that Wang Quanzhang (who the obtaining relief under the proposed principles.49 As explained in the NPRM, commenter stated is a human rights rule.’’ the Departments seek to provide clear defender in China) and Ivan Safronov (a Response: In regards to commenters’ standards for adjudicators to determine Russian journalist who, the commenter concerns that the final rule contravenes political opinion claims. For example, if stated, was charged with treason for various Federal circuit court decisions, political opinion were expanded to contributing to a prominent business the Departments note that the disparity include opposition to international newspaper) would not have valid in interpretations of the term political criminal organizations, it would political opinions under the proposed opinion is a partial motive for the definition. Commenters asserted that amendment. As discussed in the NPRM, ‘‘interfere with the other branches’ individuals could hold valid political this rule will provide clarity in an area primacy in foreign relations,’’ and opinions unrelated to regime change of conflicting case law that has made ‘‘strain the language of’’ INA such as LGBTQ rights advocacy, voter uniform application challenging for 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A). registration advocacy, and opinions on adjudicators. See Saladarriaga v. Gonzales, 402 F.3d the publication of data about COVID–19 One commenter suggested that the 461, 467 (4th Cir. 2005) (holding that an in countries that seek to hide the Departments were ‘‘seek[ing] to erase all individual’s cooperation with the DEA, pandemic’s impact. One commenter precedent that is favorable to asylum even if it stemmed from disapproval of noted that in some nations the seekers.’’ The Departments deny this a drug cartel, did not constitute a geopolitical landscape renders a purported motive. As mentioned in the political opinion). Although the distinction between opposition to a NPRM, the purpose behind the Departments agree that international specific regime indistinguishable from amendments surrounding political political opinions about cultural issues. opinion is to provide clarity to 49 As discussed herein, the rule itself applies prospectively to applications filed on or after its Commenters similarly expressed adjudicators, avoid further strain on the effective date; accordingly, it will have no effect on concern that gang-based claims would INA’s definition of ‘‘refugee,’’ and to pending applications, contrary to commenters’ be rejected under the proposed acknowledge that the statutory concerns. However, the rule also codifies many definition. Commenters asserted that requirements and general understanding principles that are already applicable through binding case law. Thus, although the rule itself may gangs can have substantial political of political opinion is intended to not apply to pending applications, applicable case power and that some nations are unable advance or further a discrete cause law that is reflected in the rule may nevertheless to control gang violence and influence. related to political control of a state. still apply to pending applications.

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criminal organizations threaten both raises the overarching question of persecution, in the Refugee Act and their fellow countrymen and the whether political opinion should be argued that legislators intended for international community, the defined at all. It is evident that existing persecution to have a broad meaning in appropriate redress for such concerns is definitions have not provided sufficient order to align the INA with U.S. not to broadly grant asylum on the basis guidance, and that there is no definition international obligations. of political opinion. in the adjacent area of human rights law Commenters expressed concern that A commenter stated, without more, that can be logically imported .... [A] the proposed definition of persecution that the rule does not meet the broadly agreed-upon definition of would exclude claims based on threats materiality standard as outlined in the political opinion would advance the with no accompanying effort to carry UNHCR guidance. The Departments jurisprudence by providing a consistent out the threat or non-exigent threats. decline to respond to commenters’ standard.’’). The NPRM aims to clarify Commenters cited and discussed general assertions that the rule violates this definition for adjudicators. The numerous Federal cases, including, U.S. international treaty obligations. Departments’ use of ‘‘expressive Cardoza-Fonseca, 480 U.S. 421, and The Departments do not share a behavior’’ is directly related to the argued that Federal case precedent commenter’s concern that the NPRM NPRM’s definition of political opinion suggests that threats alone can be the defines ‘‘political opinion’’ narrowly to as ‘‘intended to advance or further a basis of asylum claims. One commenter the extent that it runs afoul of discrete cause related to political provided the example of death threats congressional intent to define ‘‘refugee’’ control of a state.’’ 85 FR at 36280. and noted that the United States Court broadly. The NPRM notes that since the Moreover, the Departments are unaware of Appeals for the Sixth Circuit enactment of the statute, the definition of any claim rooted in political opinion reasoned that an applicant need not of ‘‘refugee’’ has been strained in that did not contain some type of wait for an actual attempt on his or her various contexts. See Saladarriaga, 402 expressive behavior, and it is not clear life before having a valid claim for F.3d at 467. Thus, one aspect of the how an opinion never uttered or asylum. Juan Antonio, 959 F.3d at 794. motive behind the NPRM is to reduce conveyed could be recognized as a Another commenter similarly argued the strain on the statute and return the political opinion. that a teenage girl who rebuffed statute to its original meaning. Another commenter expressed inappropriate advances from a corrupt Additionally, the commenter claimed concern that a particular state’s official would not be able to prevail on that the expansive definition was meant geopolitical landscape that would leave a persecution claim unless the official to mirror the 1967 Protocol relating to political opinions indistinguishable assaulted her. Commenters asserted that the Status of Refugees, the 1951 from cultural issues. First, BIA case law through the focus on severe and exigent Convention relating to the Status of clearly holds that political opinion threats, the proposed definition and the Refugees, and UNHCR guidelines, involves a cause against a state or accompanying non-exhaustive list of which the commenter claims are now political entity rather than against a factors would unlawfully lead to denials violated by the new definition. The culture. Matter of S–P–, 21 I&N Dec. at of asylum claims where applicants Departments reject this conclusion. 494. However, the Departments also suffer significant harms that fall short of While UNHCR guidelines are acknowledge that there may be rare an immediate threat to life or property. informative, they are not prescriptive circumstances that will amount to At least one commenter asserted that and thus not binding. See Aguirre- exceptions to the general guiding this requirement of action would Aguirre, 526 U.S. at 427 (‘‘The U.N. principles laid out in the NPRM. For inappropriately eliminate claims based Handbook may be a useful interpretative this reason, the rule uses ‘‘in general’’ to on a well-founded fear of future aid, but it is not binding on the Attorney guide adjudicators in their persecution. General, the BIA, or United States determinations. Commenters expressed concern that courts.’’); Cardoza-Fonseca, 480 U.S. at the proposed definition of persecution 439, n.22 (‘‘Indeed, the Handbook itself 4.3. Persecution wrongfully fails to account for the disclaims such force[.]’’). Comment: Commenters expressed a possibility of cumulative harms rising to In regards to the meaning of wide range of concerns with the rule’s the level of persecution and argued that ‘‘political,’’ the Departments note that, definitional standard for ‘‘persecution.’’ Federal case law instructs that according to the Merriam-Webster See 85 FR at 36280–81; 8 CFR 208.1(e), adjudicators must consider cumulative Dictionary, ‘‘political’’ does have 1208.1(e). Overall, commenters asserted harm. See, e.g., Herrera-Reyes v. Att’y numerous definitions. See ‘‘Political’’ that the Departments’ justification was Gen. of U.S., 952 F.3d 101, 109 (3d Cir. Definition, Merriam-Webster, https:// generally flawed and inappropriately 2020); Tairou v. Whitaker, 909 F.3d 702, www.merriam-webster.com/dictionary/ relied on case law to support its 707 (4th Cir. 2018); Matter of O–Z– & I– political. However, all but one of those position. Z–, 22 I&N Dec. 23 (BIA 1998). definitions relates specifically, and Commenters asserted that the Commenters expressed concern that the often solely, to governments. Moreover, proposed definition of persecution is rule would prevent applicants who have the first definition refers only to the inconsistent with the statutory meaning suffered multiple distinct harms from government. Similarly, the Departments of the word. For example, commenters prevailing on an asylum claim if each reject commenters’ assertions that argued that the new definition instance is deemed to be not severe or ‘‘expressive behavior’’ is solely impermissibly alters the definition of to be minor. To illustrate these ‘‘political action’’ and therefore distinct refugee so that it does not conform with concerns, one commenter discussed from political opinion. First, the the United Nations Convention and persecution suffered by the Rohingya Departments note that the definition of Protocol Relating to the Status of and another detailed the case of one of political opinion has been highly Refugees. Commenters said this violates his clients whose application, the debated. See, e.g., Catherine Dauvergne, the ‘‘fixed-meaning canon’’ of commenter argued, would be granted Toward a New Framework for construction, which ‘‘holds that words under the current regulations and case Understanding Political Opinion, 37 must be given the meaning they had law but denied under the persecution Mich. J. Int’l L. 243, 246–47 (2016) when the text was adopted.’’ definition established by the rule. (‘‘The tension between [differing Commenters considered the meaning of One commenter argued that because interpretations of political opinion] ‘‘refugee,’’ which incorporates factors suggesting a lack of persecution

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are overrepresented, adjudicators would society regards as unfair, unjust, or even 910, 910–11 (9th Cir. 2005) (collecting not be engaging in case-by-case analysis unlawful or unconstitutional.’’ cases). and that the scales are inappropriately (quotation omitted)); see also Ahmed v. The Departments note that Federal tipped towards finding a lack of Ashcroft, 341 F.3d 214, 217 (3d Cir. courts have also held that threats persecution. 2003) (discrimination against stateless without attempts to carry out the threat Commenters expressed concern that Palestinians in Saudi Arabia did not may at times constitute persecution. the proposed definition inappropriately amount to persecution). See, e.g., Duran-Rodriguez v. Barr, 918 fails to consider how children and Commenters are correct that the F.3d 1025, 1028 (9th Cir. 2019) adults experience harm differently. definition of ‘‘refugee’’ in the Act, first (explaining that ‘‘death threats alone Specifically, commenters argued that codified by the Refugee Act, can constitute persecution’’ but ‘‘they children may experience harm because incorporates ‘‘persecution’’ and that constitute ‘persecution in only a small of affiliation with family members and Congress enacted the Refugee Act in category of cases, and only when the caregivers and that harm suffered by order to conform the Act with the threats are so menacing as to cause children may rise to the level of United States’ obligations under the significant actual suffering or harm’ ’’ persecution even though the same harm 1967 Protocol relating to the Status of (citation omitted)). Threats ‘‘combined would not rise to such a level for adults. Refugees. See Matter of Acosta, 19 I&N with confrontation or other Other commenters noted that it is not Dec. at 219. However, commenters are mistreatment’’ are likely to be reasonable to expect children to seek incorrect that Congress intended for the persecution; however, ‘‘cases with protection from official sources. Refugee Act to import any specific threats alone, particularly anonymous Commenters expressed concern that international or extrinsic definition of or vague ones, rarely constitute the proposed rule would require asylum ‘‘persecution.’’ Instead, as explained by persecution.’’ Id. (internal citation seekers to demonstrate that persecutory the BIA, Congress used the term omitted) (emphasis added); see also Lim laws would likely be enforced against persecution prior to the Refugee Act, v. INS, 224 F.3d 929, 936 (9th Cir. 2000) them. As an example, commenters and, accordingly, it is presumed that (‘‘In certain extreme cases, we have held noted that asylum seekers coming from Congress intended for that pre-Refugee that repeated and especially menacing countries where same sex relationships Act construction to continue to apply. death threats can constitute a primary carry the death penalty would not be Id. at 222.50 That prior construction of part of a past persecution claim, able to secure asylum unless they could the term included the notions that particularly where those threats are also establish that the law would likely ‘‘harm or suffering had to be inflicted combined with confrontation or other be applied to them. In many cases, one upon an individual in order to punish mistreatment.... Threats standing commenter argued, such a penalty is not him for possessing a belief or alone, however, constitute past enforced frequently because sexual characteristic a persecutor sought to persecution in only a small category of minorities are not likely to break the law overcome . . . and either by the cases, and only when the threats are so given the risk of death. The commenter menacing as to cause significant actual government of a country or by persons noted that the United States Court of ‘suffering or harm.’’). Even the case or an organization that the government Appeals for the Ninth Circuit has cited by commenters, Juan Antonio, 959 was unable or unwilling to control.’’ Id. suggested that applicants with these F.3d at 794, noted that threats alone The standards for persecution contained types of claims should prevail. See amount to persecution only when they in the proposed rule and this final rule Karouni v. Gonzales, 399 F.3d 1163, are ‘‘of a most immediate and menacing align with this understanding of 1173 (9th Cir. 2005). Commenters also nature’’; moreover, the respondent in ‘‘persecution,’’ and the rule is not noted that even if laws such as the that case experienced beatings and rape incompatible with the Act or the United above are not enforced, they are still in addition to threats, rendering that States’ international treaty obligations. persecutory in nature because of the fear case inapposite to the rule, id. at 793. and vulnerability that they create in Some of the standards implemented The Departments believe that the rule those that could be subjected to the by this rule involve matters that the reflects appropriate and reasonable lines laws. Federal courts have adjudicated drawn from the relevant case law Response: As stated in the proposed inconsistently. For example, the rule regarding persecution, particularly due rule, the Departments added new establishes that repeated threats would to the difficulty associated with paragraphs in 8 CFR 208.1 and 1208.1 not constitute persecution absent assessing the credibility of an alleged ‘‘to define persecution and better clarify ‘‘actual effort to carry out the threats.’’ threat, especially in situations in which what does and does not constitute 8 CFR 208.1(e), 1208.1(e). Courts have the threat was made anonymously and persecution.’’ 85 FR at 36280. These held that threats, even with without witnesses or the existence of changes clarify that persecution is an accompanying action, do not necessarily other corroborating evidence. See Lim, extreme concept that requires severe rise to the level of persecution. See, e.g., 224 F.3d at 936 (‘‘Furthermore, claims harm and specify different examples of Gjetani, 968 F.3d at 398 (collecting of threats are hard to disprove. A conduct that, consistent with case law, cases and explaining that ‘‘[E]ven those finding of past persecution raises a do not rise to the level of persecution. subject to brutal physical attack are not regulatory presumption of future See 85 FR at 36280–81. They are not necessarily victims of ‘persecution.’ persecution and flips the burden of unduly restrictive, and it is well- Courts have condemned all manner of proof . . . to show that conditions have established that not every harm that egregious and even violent behavior changed to such a degree that the befalls an alien, even if it is unfair, while concluding they do not amount to inference is invalid .... Flipping the offensive, unjust, or even unlawful, persecution.’’); see also Quijano- burden of proof every time an asylum constitutes persecution. See Gjetani v. Rodriguez v. Gonzales, 139 F. App’x applicant claimed that he had been Barr, 968 F.3d 393, 397 (5th Cir. 2020) threatened would unduly handcuff the (‘‘Persecution is often described in the 50 Moreover, as also noted by the BIA, the [government].’’). To the extent that the negative: It is not harassment, Protocol itself leaves the determination of who standards implemented by this rule should be considered a refugee, which inherently intimidation, threats, or even assault. includes a determination of who is at risk of conflict with case law interpreting what Persecution is a specific term that does persecution, to each state party itself. Matter of sorts of conduct rise to the level of not encompass all treatment that our Acosta, 19 I&N Dec. at 220. persecution, the Departments invoke

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their authority to interpret the whether she holds a well-founded fear there may be credible evidence of the ambiguities of what constitutes of future persecution.’’). Commenters enforcement of such laws. For example, persecution—an undefined term in the are incorrect, however, that the rule’s in the Ninth Circuit case cited by Act—outside the bounds of such prior persecution standard conflicts with this commenters, the government conceded judicial constructions. See Brand X, 545 instruction. Instead, the rule provides a at oral argument that the Lebanese U.S. at 982; see also Grace II, 965 F.3d general standard for persecution that is government arrested individuals for at 889 (noting that the term built around the severity of the harm. 8 homosexual acts and enforced the law at ‘‘persecution’’ is ‘‘undefined in the CFR 208.1(e), 1208.1(e). This focus on issue. Karouni, 399 F.3d at 1172. INA’’); cf. Fernandez v. Keisler, 502 F.3d severity does not foreclose arguments or Finally, the rule’s persecution 337, 347–48 (4th Cir. 2007) (applying an adjudicator’s finding that harms standard does not in any way foreclose Brand X to affirm the BIA’s rejection of suffered by an applicant are severe in claims based solely on a well-founded the Fourth Circuit’s prior interpretation their particular context given the fear of future persecution. Instead, the of section 101(a)(22) of the Act, 8 U.S.C. applicant’s age or particular adjudicator will consider whether the 1101(a)(22), where the court’s prior circumstances, even if such harms may future harm feared by the applicant interpretation did not rest on a not generally be considered severe for would constitute persecution under the determination that the statute was the average applicant. rule’s standards. In other words, the ‘‘unambiguous’’). Moreover, in response Regarding commenters’ concerns with adjudicator would consider whether the to the commenters’ concerns, the final the rule’s instruction that ‘‘[t]he feared harm would be carried out by an rule more clearly specifies the types of existence of laws or government policies individual with the intent to target the threats included within the definition that are unenforced or infrequently applicant’s belief or characteristic, such that menacing and immediate ones enforced do not, by themselves, would be severe, and would be inflicted may still come within the definition constitute persecution, unless there is by the government or by persons or consistent with the case law noted credible evidence that those laws or organizations that the government is above. policies have been or would be applied unable or unwilling to control.51 To the extent that aspects of to an applicant personally,’’ the persecution adjudications are not Departments note this standard is 4.4. Nexus covered by the rule, the Departments consistent with well-established law Comment: Numerous commenters expect adjudicators to conduct all that ‘‘an asylum applicant can establish expressed general disagreement determinations consistent with the law, a well-founded fear of persecution by regarding the rule’s nexus provisions, regulations, and precedent. proving either a pattern or practice of including referring to the list as an Accordingly, the rule does not conflict persecution of a social group, of which ‘‘anti-asylum wish list.’’ Commenters with case law explaining that harms the applicant has proven she is a claimed that it directed adjudicators to must be considered cumulatively and in member, or by proving the applicant deny most claims. the aggregate, see, e.g., Matter of Z–Z– will be singled out personally.’’ Ayele v. Some commenters alleged that the O–, 26 I&N Dec. 586, 589 (BIA 2015) Holder, 564 F.3d 862, 870 (7th Cir. Departments were attempting to (holding that applicant’s experiences 2009). Laws that are unenforced or accelerate asylum hearings at the did not amount to persecution ‘‘when enforced infrequently cannot expense of due process; the commenters considered either individually or demonstrate a pattern or practice of construed the rule as creating a cumulatively’’); Matter of O–Z– persecution, 8 CFR 208.13(b)(2)(iii), checklist that bypasses careful & I–Z–, 22 I&N Dec. at 25–26 1208.13(b)(2)(iii), and without credible consideration that due process requires. (considering incidents of harm ‘‘[i]n the evidence that such laws would be Others opined that the rule prioritized aggregate’’), because it does not in any applied to the applicant, the alien efficiency and expediency over fairness, way direct adjudicators to blindly only cannot demonstrate that he or she due process, and ‘‘basic humanity.’’ consider harm suffered individually. In would be singled out individually for Commenters stated the rule allowed other words, adjudicators will still persecution, id. The rule does not alter ‘‘blanket denials.’’ consider harms suffered by applicants these well-established precepts. Further, Another commenter opined that the in the aggregate. this requirement that the mere existence rule was arbitrary because the Similarly, the rule does not end case- of a law, without more, is insufficient to Departments failed to consider the real- by-case adjudications of whether rise to the level of persecution is in world implications of the proposal. conduct constitutes persecution. The keeping with prior interpretations of Commenters expressed concern that, Departments disagree with commenters persecution. For example, the BIA has after the enactment of the rule, many that the Departments’ choice to frame explained that evidence of the asylum seekers would not have persecution in the context of conduct enactment of a new law is not evidence favorable adjudication of their claims, that does not rise to the level of of changed country conditions for the persecution while leaving open further purposes of a motion to reopen 51 Specifically regarding commenters’ concerns adjudication of what conduct ‘‘without convincing evidence that the that the rule’s standard that threats without constitutes persecution in any way ‘‘tips prior version of the law was different, or accompanying action do not constitute persecution the scales.’’ ‘‘Persecution is often was differently enforced, in some would undermine claims based on fear of future persecution, the Departments believe that the described in the negative . . . .’’ relevant and material way.’’ Matter of S– commenters are conflating past harms and Gjetani, 968 F.3d at 397. Y–G–, 24 I&N Dec. 247, 257 (BIA 2007). determinations of past persecution with fear of As noted by commenters, Federal This definition does not foreclose an future harm and determinations of a well-founded courts have held that an applicant’s age applicant from citing to the existence of fear of future persecution. Indeed, it is difficult to understand how anyone could predict whether is relevant for determining whether the such laws as a part of his or her future threats will occur and difficult to conceive applicant suffered persecution. See, e.g., evidence to demonstrate past of a claim in which an alien alleges a fear of future Liu v. Ashcroft, 380 F.3d 307, 314 (7th persecution or risk of future threats but not a fear of future physical, mental, or Cir. 2004) (‘‘[A]ge can be a critical factor persecution. Nor does this requirement economic harm. The real issue is the likelihood of future harm based on past threats, and the rule does in the adjudication of asylum claims require an applicant to live in secret in not alter an alien’s ability to argue that past threats and may bear heavily on the question of order to avoid future harm. Further, the are evidence of either past persecution or a whether an applicant was persecuted or Departments expect that in many cases likelihood of future persecution.

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including those based on violence from applicant’s particular claim. See 8 CFR a list of circumstances that do not non-state actors. Others claimed the 208.1(f), 1208.1(f) (‘‘For purposes of constitute harm on account of a rule’s nexus components were adjudicating an application for asylum protected ground in most, but not all, ‘‘completely incapable of supporting a under section 208 of the Act or an cases. Accordingly, the rule is meritorious asylum claim.’’ application for withholding of removal consistent with the Attorney General’s Commenters expressed concern that under section 241(b)(3) of the Act, the admonishment, in Matter of A–B–, of the the rule precludes a mixed-motive Secretary, in general, will not favorably BIA for failing to engage in an analysis, reasoning that if an actor had adjudicate the claims of aliens who individualized analysis and instead any one, potential motive listed in the claim persecution based on the accepting the Government’s concessions rule, it would be fatal to the claim, and following list of nonexhaustive as true. 27 I&N Dec. at 339. Regarding that it violates the ‘‘one central reason’’ circumstances’’); see also Grace II, 965 commenters’ further concerns that the standard. INA 208(b)(1)(B)(i), 8 U.S.C. F.3d at 906 (holding that the inclusion rule should not codify Matter of A–B– 1158(b)(1)(B)(i). of qualifying terms like ‘‘in general’’ and given its varied treatment by the Federal Some of the commenters’ ‘‘generally’’ demonstrated that the courts, the Departments note that the disagreement surrounded Matter of government had not enacted a rule that United States Court of Appeals for the A–B–, 27 I&N Dec. 316. One commenter all gang-based asylum claims would fail District of Columbia Circuit recently opined that the rule is contrary to to demonstrate eligibility for asylum). In affirmed that Matter of A–B– holds that Matter of A–B–’s requirement of case-by- other words, the rule implicitly allows decision makers must make individual case rigorous analysis, and another for those rare circumstances in which determinations on a case-by-case basis. commenter worried that the NPRM the specified circumstances could in Grace II, 965 F.3d at 905. The codified Matter of A–B–, despite, as the fact be the basis for finding nexus given Departments also note that every circuit commenter characterized, its the fact-intensive nature of nexus court addressing Matter of A–B– on its unfavorable treatment in various determinations. See 85 FR at 36279. The merits so far, as opposed to the unusual Federal courts. amended regulations do not remove that procedural challenge at issue in Grace Other commenters argued that the fact-intensive nature from the nexus II, has found it to be a valid exercise of nexus provisions conflated ‘‘categories inquiry; rather, the amended regulations the Attorney General’s authority. See, of people’’ with requirements of the provide clarity in order to reduce the e.g., Gonzales-Veliz v. Barr, 938 F.3d at perpetrator’s mental state. amount of time that adjudicators must 234 (‘‘In sum, because A–B– did not Another commenter expressed spend evaluating claims. While the change any policy relating to asylum concern that the rule included Departments did consider expediency and withholding of removal claims, we ‘‘substantive changes to the law and fairness, the Departments disagree reject Gonzales-Veliz argument that A– disguised in procedural attire.’’ that expediency is prioritized over and B– constituted an arbitrary and Response: As an initial point, to the above due process. capricious change in policy.’’); Diaz- extent commenters’ points misstate the The Departments disagree with Reynoso v. Barr, 968 F.3d 1070, 1080 rule, address issues not raised by the commenters’ concerns that the nexus (9th Cir. 2020) (‘‘Accordingly, we rule, are rooted in erroneous reasoning, provisions eliminate the mixed motive decline to hold that the Attorney are contrary to facts or law, or reflect analysis or violate the ‘‘one central General’s decision in Matter of A–B– unsubstantiated and exaggerated reason’’ standard. As discussed above in was arbitrary or capricious.’’). melodramatic views of the rule, the Section II.C.4.3 of this preamble, to the The Departments disagree with the Departments decline to adopt those extent that aspects of persecution commenters’ allegation that the points. The Departments do not wish to adjudications are not covered by the Departments conflated nexus with other enact some ‘‘anti-asylum wish list’’ in rule, the Departments expect asylum requirements by not solely this rule. In codifying the circumstances adjudicators to conduct all focusing on the perpetrator’s state of that are generally insufficient to support determinations consistent with the law, mind. The NPRM provides a list of a nexus finding, the Departments are regulations, and precedent. Here, the situations that would not ordinarily be simply specifying common rule provides guidance on harms that on account of a protected ground. 85 FR circumstances, consistent with case law, would not be considered on account of at 36281. The listed situations are in order to provide clarity and efficiency one of the five protected grounds; the attenuated from protected grounds to for adjudicators. The Departments rule did not state, nor was it meant to the extent that they do not meet the proposed these amendments in order to be construed, that it precluded mixed necessary nexus requirement. While assist aliens with meritorious claims, as motive analysis if the situation involved some of the listed situations, well as the entire immigration system. one of the five protected grounds in particularly those related to the As with all regulations or policy addition to one of the listed rationale for the harm, are closely changes, the Departments considered circumstances that would generally not related to other elements of asylum, the effect this rule will have; be harm on account of a protected including particular social group, a accordingly, the Departments reject ground. Further, the preamble to the nexus analysis has often required an commenters’ allegations that such NPRM acknowledges mixed motive examination of the persecutor’s views. implications were not considered. claims by quoting the REAL ID Act of See Sharma v. Holder, 729 F.3d 407, The rule’s inclusion of these general 2005, which defined the nexus element 412–13 (5th Cir. 2013); Caal-Tiul v. guidelines for nexus determinations will as requiring that one of the five Holder, 582 F.3d 92, 95 (1st Cir. 2009). not result in due process violations from protected grounds to be ‘‘at least one Thus, the inclusion of the situations adjudicators failing to engage in an central reason for persecuting the related to rationale for the harm are individualized analysis. The rule applicant.’’ 85 FR at 36281. consistent with case law. provides a nonexhaustive list of eight As to the concerns surrounding Finally, the Departments reiterate that circumstances that generally will not Matter of A–B–, the Departments the NPRM does not re-write asylum law warrant favorable adjudication, but the reiterate the above discussion that as some commenters suggested. As rule does not prohibit a favorable adjudicators should continue to engage noted in the NPRM and herein, the adjudication depending on the specific in individualized, fact-based provisions of the rule related to the facts and circumstances of the adjudications as the rule provides only substance of asylum claims flows from

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well-established statutory authority and 205 F.3d 1177, 1181 n.3 (9th Cir. 2000), motivated by another potentially relevant case law; thus, it does not ‘‘re- and reiterating that ‘‘[p]urely personal protected ground, the adjudicator will write’’ substantive asylum law. The retribution is, of course, not’’ a consider those particular facts and NPRM falls squarely within the protected ground, specifically, imputed circumstances to determine the Departments’ authority, which is political opinion); Blanco de Belbruno applicant’s eligibility for asylum or discussed more fully in Section 6.5 of v. Ashcroft, 362 F.3d 272, 284 (4th Cir. statutory withholding of removal. this preamble. 2004) (finding that ‘‘[f]ears of 4.4.2. Interpersonal Animus in Which ‘retribution over purely personal matters 4.4.1. Interpersonal Animus or the Alleged Persecutor Has Not . . .’ do[es] not constitute [a] cognizable Retribution Targeted, or Manifested an Animus bas[is] for granting asylum’’) (quoting Against, Other Members of an Alleged Comment: Commenters expressed Huaman–Cornelio v. BIA, 979 F.2d 995, Particular Social Group in Addition to particular concerns regarding the 1000 (4th Cir. 1992)). The Departments the Member Who Has Raised the Claim specification that claims based on disagree that Zoarab is not an accurate at Issue ‘‘interpersonal animus or retribution’’ example of this basic proposition generally will not be favorably despite commenters’ characterizations Comment: Commenters also raised adjudicated. 8 CFR 208.1(f)(1), of the case’s particular facts. concerns regarding this change in the 1208.1(f)(1). One commenter opined Furthermore, after the NPRM was NPRM described in this heading. One that it was arbitrary and irrational for promulgated, the Attorney General commenter argued that it was a ‘‘clear the Departments to rely on Zoarab v. made the point more explicitly that attempt to bar women from obtaining Mukasey, 524 F.3d 777, 781 (6th Cir. interpersonal animus or retribution will asylum based on domestic violence,’’ a 2008), in support of this change because generally not support a nexus finding claim that the commenter noted was an that case’s facts were ‘‘unusual.’’ required under the INA. See Matter of ‘‘uncontroversial basis for asylum in Commenters expressed confusion as A–C–A–A–, 28 I&N Dec. 84, 92 (A.G. many of our courtrooms until the to whether interpersonal modified both 2020) (‘‘An alien’s membership in a Attorney General issued Matter of animus and retribution. If it did not particular social group cannot be A–B–.’’ One commenter asserted that modify retribution, commenters incidental, tangential, or subordinate to this amendment gives the persecutor a expressed concern that retribution, the persecutor’s motivation for why the ‘‘free pass’’ to persecute someone which they defined as punishment, persecutor sought to inflict harm.... because that person will be unable to encompasses all asylum claims. Accordingly, persecution that results establish that another person suffered Other commenters remarked that all from personal animus or retribution under this persecutor. Further, the harm between people is interpersonal. generally does not establish the commenter argued that asking an alien Commenters also expressed concern necessary nexus.’’ (cleaned up)). ‘‘The to investigate, while attempting to flee that the inclusion of this situation reasoning for this is straightforward: for safety, whether the persecutor had would result in the erasure of mixed When private actors inflict violence persecuted others was impossible, motive analysis as some ‘‘may engage in based on a personal relationship with a absurd, and arbitrary. Another persecution for pretextual reasons to victim, then the victim’s membership in commenter claimed that it violated the hide their bias.’’ a larger group may well not be ‘one INA to require an alien to demonstrate Response: The inclusion of claims central reason’ for the abuse.’’ Id. that the persecutor ‘‘manifested animus based on ‘‘interpersonal animus and (internal quotation marks omitted). against others.’’ One commenter retribution’’ as examples of claims that To the extent commenters argue that claimed that the amendment was will generally not result in a favorable any harm between two people is irrational because it held aliens seeking adjudication because the harm is not on ‘‘interpersonal,’’ commenters asylum through membership in a account of a protected ground is misinterpret both the cases supporting particular social group to a different and consistent with longstanding precedent. this provision and the rule itself. higher evidentiary standard than aliens The Departments cited to just one case, Instead, the point here is that a personal seeking asylum through the other four Zoarab, 524 F.3d at 781, to illustrate dispute between two people—for protected grounds. The commenter this point in the NPRM, but there are example a property dispute that causes asserted that this reading was supported numerous other examples. See, e.g., some sort of altercation or a personal by the BIA’s use of ejusdem generis in Martinez-Galarza v. Holder, 782 F.3d altercation because of one person’s Matter of Acosta, 19 I&N Dec. 211, and 990, 993 (8th Cir. 2015) (finding that involvement with a criminal the Attorney General’s favorable citation harm ‘‘motivated by purely personal investigation and prosecution—is not of the rule in Matter of L–E–A–, 27 I&N retribution’’ is not a valid basis for an generally a valid basis for an asylum Dec. 581. Another commenter insisted asylum claim); Madrigal v. Holder, 716 claim because it is not harm on account that ‘‘interpersonal’’ was a meaningless F.3d 499, 506 (9th Cir. 2013) (explaining of a protected ground. Further, as set out modifier. that ‘‘mistreatment motivated purely by in the rule, the qualifier ‘‘interpersonal’’ Response: The Departments, based on personal retribution will not give rise to applies to both animus and retribution. prior case law, decided that a valid asylum claim’’); Amilcar- Accordingly, commenters are incorrect demonstration of animus against other Orellana v. Mukasey, 551 F.3d 86, 91 that this provision states that any claim members of the particular social group (1st Cir. 2008) (holding that ‘‘[f]ear of based on ‘‘retribution’’ would generally is generally necessary to establish retribution over personal matters is not be insufficient and that all or most nexus. 85 FR at 36281; see also Matter a basis for asylum under the claims would fail as a result. of A–C–A–A–, 28 I&N Dec. 84, 92 (A.G. Immigration and Nationality Act’’); Jun Finally, the Departments reiterate the 2020) (‘‘Furthermore, if the persecutor Ying Wang v. Gonzales, 445 F.3d 993, discussion above in Section II.C.4.4 of has neither targeted nor manifested any 998 (7th Cir. 2006) (acknowledging that this preamble that the inclusion of these animus toward any member of the the Seventh Circuit has ‘‘repeatedly examples does not foreclose a mixed particular social group other than the held that a personal dispute cannot give motive analysis. Accordingly, to the applicant, then the applicant may not rise to a claim for asylum’’); Molina- extent an applicant’s fear is based on satisfy the nexus requirement.’’). The Morales v. INS, 237 F.3d 1048, 1052 harm partially motivated by an focus of the nexus requirement is (9th Cir. 2001) (quoting Grava v. INS, interpersonal dispute and partially membership in the group, INA

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101(a)(42), 8 U.S.C. 1101(a)(42), and by Accordingly, commenters’ suggestion the state’’ in the list of circumstances definition, a ‘‘group’’ encompasses more that each persecutor will have a ‘‘free that will generally not support a nexus than one individual. Thus, an alleged pass’’ is also incorrect.53 finding. Specifically, some commenters persecutor who has no interest in Additionally, the Departments argued that this provision undermines a harming other individuals ostensibly in disagree that this provision evidences rigorous fact-based analysis as it that group is generally not seeking to discriminatory intent against a ‘‘categorically state[s] that certain persecute one individual on account of particular class of asylum applicants. opinions can never be political.’’ The his or her membership in that alleged The rule is designed to provide commenters urged that this type of particular social group. Without such expedited adjudication of meritorious labeling is incorrect and improper. animus against other group members, claims as well as increased clarity and Additionally, commenters asserted that the motivation would appear to be uniformity—a problem that commenters the provision ‘‘evidences a clear personal, rather than on account of highlighted by noting that ‘‘many,’’ but discriminatory intention to utterly membership in the group, and a not all, courts held a particular standard annihilate the entire genres of asylum personal dispute, as discussed above, is regarding applications premised on cases where opposition to gangs generally insufficient on its own to domestic violence. constitutes a political opinion.’’ Another qualify the applicant for the relief of The Departments do not believe that commenter claimed that the rule was asylum. See Madrigal, 716 F.3d at 506. this requirement violates the INA, and ‘‘clearly designed’’ to eliminate asylum Asylum law is not meant to provide without a more specific comment, they for those fleeing the ‘‘Northern redress for every victim of crime no are unable to respond. Triangle’’ (El Salvador, Guatemala, and matter how sympathetic those victims This provision is not irrational and Honduras) of Central America. One may be. Accordingly, in order to does not hold aliens relying on commenter asserted that because the demonstrate that an alien was membership in a particular social group international criminal organizations persecuted ‘‘on account of’’ a particular to a higher evidentiary standard. function as quasi-governments, there is social group based on interpersonal Although particular social group is a often no reason for an alien to engage in animus, the alien will ordinarily need to more amorphous category than race, expressive behavior that is antithetical demonstrate that the persecutor has religion, nationality, or political to the state because ‘‘the state has no targeted or manifested an animus opinion—and, thus, more in need of real authority.’’ against someone else in that particular definitional clarity—each protected Response: First, commenters are social group. Because an alien will ground requires demonstration of the incorrect that this provision prohibits necessarily articulate a particular social same base elements: Persecution or a certain opinions from being considered group that is socially distinct in order well-founded fear of persecution on ‘‘political.’’ Instead, as discussed above, for the group to be cognizable in the first account of a protected ground. adjudicators should continue to engage instance, it is reasonable to expect the Further, ‘‘interpersonal’’ is not a in fact-based analysis of the particular alien to be able to articulate whether the meaningless modifier. The Departments facts and circumstances of an individual alleged persecutor has sought to harm use the term ‘‘interpersonal’’ to applicant’s claim, and the rule expressly other members of that group. The rule differentiate instances of animus and allows for rare circumstances in which does not require aliens to investigate or dispute between two private parties the facts of a listed situation could be ask their alleged persecutors anything; from instances of animus and dispute the basis for finding nexus. This rather, the aliens should already have between a private individual and a provision does not remove that fact- evidence about the persecutor’s motives government official. intensive nature from the nexus inquiry. in order to advance a valid asylum 4.4.3. Generalized Disapproval of, Additionally, the Departments claim in the first instance, especially in Disagreement With, or Opposition to disagree that this provision evidences a cases where the alleged persecutor is the Criminal, Terrorist, Gang, Guerilla, or discriminatory intent. Again, the rule is government. Other Non-State Organizations Absent designed to allow a more expeditious Despite the inclusion of this ground Expressive Behavior in Furtherance of a adjudication of meritorious asylum as a statement of one type of claim that Discrete Cause Against Such claims so that applicants do not have to is generally incapable of supporting an Organizations Related To Control of a wait a lengthy amount of time before application for relief, the Departments State or Expressive Behavior That is receiving relief. The Departments’ reject commenters’ interpretation of this Antithetical to the State or a Legal Unit inclusion in this section of the rule of provision as a bar. Rather, as the of the State a certain category of claims that is Departments have detailed above, the frequently raised but is generally rule itself allows for circumstances Comment: Commenters expressed insufficient to establish nexus is not the where a listed situation, based on the concerns regarding the required product of a desire to harm or inhibit a specific facts, will support a nexus analysis, the underlying intent, and the particular people, nationality, or group. finding. For example, as noted by necessary elements of the inclusion of As to a commenter’s suggestion that commenters, an applicant who is a ‘‘generalized disapproval of, aliens may be unlikely to engage in persecutor’s initial victim may argue disagreement with, or opposition to expressive behavior that is antithetical that despite the persecutor’s lack of criminal, terrorist, gang, guerilla, or to the state because the state has no real action against other group members, the other non-state organizations absent authority due to international criminal applicant’s dispute with the persecutor expressive behavior in furtherance of a organizations functioning as quasi- is in fact on account of the protected discrete cause against such governments, the Departments interpret ground and not on account of a non- organizations related to control of a state this comment to refer to organizations protected personal concern.52 or expressive behavior that is such as drug cartels whom the antithetical to the state or a legal unit of commenter believes function as de facto 52 The Departments also note that the governments in some countries. commenters’ example of an ‘‘initial victim’’ 53 Further, persecutors are not brought to justice Although the Departments question the necessarily presumes both that there are other under U.S. asylum law nor should it be viewed that victims and that the alien knows or will know of way. The Departments are not giving persecutors factual accuracy of the commenter’s them. Consequently, that example would fall ‘‘one free pass’’ because they are often not dealing point and otherwise believe the outside of the rule’s purview in any event. with the persecutors themselves. comment is either hypothetical or

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speculative, especially due to the fact- 4.4.5. The Targeting of the Applicant for providing boundaries on the term, the intensive, case-by-case nature of asylum Criminal Activity for Financial Gain Departments invited ‘‘mass denials of application adjudications, they Based on Wealth or Affluence or claims by those who have bona fide nevertheless note that the rule does not Perceptions of Wealth or Affluence asylum claims.’’ A commenter preclude claims based on opposition to Comment: Regarding ‘‘the targeting of expressed concern that the category non-state organizations related to efforts the applicant for criminal activity for would include aliens who were forced by the state to control such financial gain based on wealth or or coerced into committing crimes. organizations. 8 CFR 208.1(d), affluence or perceptions of wealth or Additionally, a commenter expressed 1208.1(d). And if an applicant affluence,’’ one commenter expressed reservations about the Departments’ reliance on Zetino v. Holder, 622 F.3d establishes that the organization is the concern about the Departments’ citation 1007, 1016 (9th Cir. 2010), explaining de facto government or otherwise to Aldana-Ramos v. Holder, 757 F.3d 9, that the ‘‘alien was detained and functions in concert with the 18 (1st Cir. 2014), as support. The unrepresented before the immigration commenter stated that the case’s government, then the rule does not court and the BIA’’ and ‘‘it was not until primary holding was ‘‘even if a preclude a claim based on the he had filed a pro se petition for review persecutor seeks to harm an asylum applicant’s opposition to that that he obtained counsel, and most of seeker for financial gain, the BIA must organization or the government. In other his appeal centered on procedural engage in a mixed motive analysis to words, whether the country has ‘‘real defects in the proceedings below.’’ authority’’ or not, nothing in the rule determine whether the protected Response: The inclusion of ‘‘criminal precludes a claim based on opposition characteristic was also a central reason activity’’ is not overly expansive. to non-state organizations in the for the persecution.’’ The commenter Rather, as demonstrated by the circumstances outlined in the rule, alleged that the Departments were explanatory case citation provided by relying on Aldana-Ramos to though the Departments note that, in the Departments, this provision is meant ‘‘implement a blanket rule against general, aliens who do not engage in to capture cases that are premised on asylum seekers who may be targeted, in expressive behavior regarding such generalized criminal activity. See part, based on wealth or perceived Zetino, 622 F.3d at 1016 (discussing the organizations or the government are wealth, with no regulatory requirement unlikely to establish a nexus based on ‘‘desire to be free from harassment by that adjudicators engage in mixed criminals motivated by theft or random political opinion for purposes of an motive analysis, as is required under the asylum application. violence by gang members’’). Real ID Act as codified in the INA.’’ The Departments find that these 4.4.4. Resistance to Recruitment or Response: As discussed above, the generalized claims are distinct from the Coercion by Guerilla, Criminal, Gang, nexus provisions do not eliminate the commenters’ concerns that persecutory Terrorist, or Other Non-State mixed-motive analysis. The NPRM acts in general may be ‘‘criminal.’’ To Organizations explicitly detailed that it was providing the extent commenters are nevertheless guidance on what generally would not concerned that this provision would Comment: Commenters asserted that be considered one of the five protected prohibit a broader swath of claims, the the inclusion of ‘‘resistance to grounds; the NPRM did not state, nor Departments again reiterate that these recruitment or coercion by guerilla, was it meant to be construed, that it categories of cases are not categorical criminal, gang, terrorist, or other non- precluded mixed-motive analysis if the bans. Instead, the rule explicitly noted state organizations’’ as a particular situation involved one of the five that there may be exceptions, and an circumstance that generally does not protected grounds in addition to a applicant may present argument to the support a nexus finding does not take in situation on the list that was not adjudicator as to why their individual to account the significant power yielded adjudicated to be a protected ground. case meets the nexus requirement. For Thus, the NPRM is consistent with by transnational criminal organizations, example, aliens who were forced and mixed-motive analysis precedent, and which often function as de facto coerced into crime may be an exception an applicant may provide argument, like governments. based upon the specific facts of the the respondent in Aldana-Ramos, that situation. Response: The Departments his or her alleged persecutor is Further, the citation to Zetino remains appreciate commenters’ concerns about motivated by a protected ground in an accurate example of the Departments’ the expansive power of transnational addition to the non-protected ground proposition despite commenters’ criminal organizations. The stated in the exception. concerns, which involved procedural Departments agree with commenters 4.4.6. Criminal Activity issues unrelated to the relevant points that such organizations may pose in the case. significant dangers. If an alien asserts Comment: Commenters expressed concern about the rule’s inclusion of 4.4.7. Perceived, Past or Present, Gang that the government is unable or Affiliation unwilling to control the transnational ‘‘criminal activity’’ as the basis of claims criminal organization, the alien may that will generally not support a Comment: Regarding the inclusion of present evidence to establish that. As favorable adjudication due to the ‘‘perceived, past or present, gang breadth of the provision and the affiliation’’ as the basis of claims that the Departments have previously underlying precedent. Numerous will generally not support a favorable mentioned, the NPRM explicitly commenters opined that ‘‘virtually all adjudication, commenters objected to a acknowledges the fact-intensive nature harm’’ that satisfies the persecution perceived double standard and the of the nexus inquiry and further requirement could be characterized as implications for aliens, especially acknowledges that rare circumstances ‘‘criminal activity’’ because ‘‘in virtually children. Several commenters argued defined by the listed situations may every country, beatings, rape, and that this provision was arbitrary and warrant a favorable nexus threatened murder’’ are criminalized. capricious because it would make determination. Another commenter realized that this individuals who were incorrectly broad definition may not be what the imputed to be gang members ineligible Departments intended, but without for asylum while allowing incorrect

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imputation of other characteristics, for sufficiently meets the nexus on whether the members of that group are example, homosexuality, to be grounds requirements based upon the specific sufficiently likely to be persecuted that one for asylum. Another commenter noted facts in their application. could say that they are persecuted ‘‘on that this change would twice victimize account of’’ their membership. 8 U.S.C. 4.4.8. Gender aliens because imputed gang 1101(a)(42)(A). It may well be that only certain women—say, those who protest membership occurs at no fault of their Comment: Some commenters expressed strong objections to the inequities—suffer harm severe enough to be own. One commenter also expressed considered persecution. The issue then concern that children who are forced NPRM’s inclusion of gender in the list becomes whether the protesting women into prostitution or drug smuggling of circumstances that would not constitute a social group. would lose their right to asylum. ordinarily result in a favorable Response: The Departments adjudication, including allegations that Niang, 422 F.3d at 1199. One acknowledge commenters’ concerns and the provision is arbitrary and capricious commenter expressed a belief that the have sympathy for aliens who as well as ‘‘cruel and contrary to the Departments’ choice of language to cite incorrectly have gang membership purposes underlying Congress’ desire to in Niang was designed to deceive the imputed onto them by no fault of their provide protection to refugees.’’ Some public and to reduce the notice and own. These concerns, however, do not commenters also argued that the comment burden. result in a viable asylum claim. ‘‘[T]he amendments took a new and capricious Commenters asserted that the asylum statute does not provide redress position and would result in substantial inclusion of gender conflicts with the for every misfortune.’’ Matter of A–B–, and irreparable harm to aliens. One international obligations and 27 I&N Dec. at 318. commenter opined that this provision international norms of the United Regarding commenters’ concerns that was really about a desire to reduce the States. For example, a commenter noted the rule provides an inconsistent amount of aliens who could seek that the UNHCR, which oversees the approach to immutability, commenters asylum. Refugee Convention, has confirmed that compare dissimilar claims. While gang Commenters asserted that gender has people fleeing persecution based on affiliation and homosexuality are traits been one of the bedrock bases for gender, gender-identity, and sexual that may both be imputed, accurately or asylum claims and that, as a result, the orientation do qualify for asylum under not, to an applicant, the underlying rule overturns decades of contrary legal the Convention’s definition of a refugee. ground of the latter may be a protected precedent. In support, commenters cited In regards to numerosity, the commenter ground while the former is not. Thus, to multiple cases ‘‘in which immigration pointed to UNHCR guidance which the Departments’ approach toward judges, the BIA, and the courts of explained, ‘‘[t]he size of the group has immutability is consistently based on appeals have held that gender-based sometimes been used as a basis for the protected nature of the underlying persecution provides a valid ground for refusing to recognize ‘women’ generally ground. asylum.’’ 55 One commenter claimed as a particular social group. This Commenters are incorrect that this that the proposed rule ‘‘runs counter to argument has no basis in fact or reason, provision would cause children, such as every case to have considered it.’’ as the other grounds are not bound by those forced into prostitution or drug According to commenters, this includes this question of size.’’ Commenters smuggling by criminal gangs, to lose the precedent cited in support of the stated that because the inclusion of 54 their eligibility for asylum. Indeed, as rule, Niang v. Gonzales, 422 F.3d 1187 gender would exclude meritorious noted in the preamble, claims premised (10th Cir. 2005), which they assert in claims for relief, the rule against gender- on these sorts of gang affiliations had fact holds that gender can provide an based asylum claims would violate the already been found in case law to not adequate basis for establishing government’s duty of non-refoulement support a finding of asylum eligibility membership in a particular social group. as codified in statutory withholding of prior to the proposed rule’s publication. Id. at 1199–1200. Some commenters removal at section 241(b)(3)(A), 8 U.S.C. See, e.g., Reyes, 842 F.3d at 1137–38 asserted that the Departments should 1231(b)(3)(A). Commenters stated that (holding that ‘‘former members of the have included a larger quotation in the the rule against gender-based asylum Mara 18 gang in El Salvador who have NPRM preamble, including: would aid and abet violations of the law renounced their membership’’ was not a of nations in contravention of the Alien cognizable particular social group); the focus with respect to such claims should be not on whether either gender constitutes Tort Claims Act (‘‘ATCA’’) because Matter of A–B–, 27 I&N Dec. at 320 a social group (which both certainly do) but there is a specific and universal (‘‘Generally, claims by aliens pertaining obligation to prevent domestic violence to . . . gang violence perpetrated by 55 For example, one commenter cited to the and other violence against women in non-governmental actors will not following cases: De Pena-Paniagua v. Barr, 957 F.3d international law. qualify for asylum.’’). Because these 88, 93–94 (1st Cir. 2020); Cece, 733 F.3d 671–72; gang-based claims are not related to a Sarhan v. Holder, 658 F.3d 649, 654–57 (7th Cir. One commenter argued that it is 2011); Perdomo, 611 F.3d at 662; Agbor v. Gonzales, improper to disfavor gender-based protected ground, it reasonably follows 487 F.3d 499, 503 (7th Cir. 2007); Hassan v. that they would further not succeed on Gonzales, 484 F.3d 513, 517–18 (8th Cir. 2007); claims in the nexus section. In support nexus because the harms would not be Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir. 2006); of that position, the commenter asserted on account of a protected ground. Gao v. Gonzales, 440 F.3d 62, 70 (2d Cir. 2004), that to support a general bar on gender- vac’d on other grounds sub nom. Keisler v. Gao, 552 based claims within the nexus analysis, Nevertheless, the Departments again U.S. 801 (2007); Niang, 422 F.3d at 1999–1200; reiterate that, as discussed above, the Mohammed v. Gonzales, 400 F.3d 785, 795–98 (9th the agencies would need to show that rule explicitly provides for rare Cir. 2005); Balogun v. Ashcroft, 374 F.3d 492, 499 gender is not generally a central reason exceptions; children who were forced (7th Cir. 2004); Abay v. Ashcroft, 368 F.3d 634, for persecution throughout the world, into prostitution or drug smuggling may 639–42 (6th Cir. 2004); Yadegar-Sargis v. INS, 297 and further, the proposed regulation F.3d 596, 603–04 (7th Cir. 2002); Fatin, 12 F.3d at present argument that their case 1241; In re Kasinga, 21 I&N Dec. 357, 375 (BIA changes do nothing to establish any 1996); cf., e.g., Kadri v. Mukasey, 543 F.3d 16, 21 empirical claims about causation. 54 The Departments note that aliens who are (1st Cir. 2008) (‘‘Sexual orientation can serve as the Commenters also expressed concern victims of criminal activities, including human foundation for a claim of persecution, as it is the that the amendment would prevent trafficking, may be eligible for other immigration basis for inclusion in a particular social group.’’); benefits beyond asylum based on that victimization. Karouni v. Gonzales, 399 F.3d at 1171–72 (reaching adjudicators from evaluating claims on INA 101(a)(15)(T),(U), 8 U.S.C. 1101(a)(15)(T),(U). the same conclusion). a case-by-case basis.

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Another commenter noted that levels situations generally resulting in 1967 Protocol . . . is incumbent upon of gender-based violence have risen unfavorable adjudication is cruel, novel, the Contracting State in whose territory during the coronavirus pandemic and capricious, or contrary to congressional the refugee finds himself.’ ’’ Id. at 427– stated that, as a result, it is not intent. 28. Further, to the extent such guidance appropriate for the Departments to take The Departments acknowledge ‘‘may be a useful interpretative aid,’’ id. action to restrict asylum claims based commenters’ discussion of a wide range at 427, it would apply only to statutory on gender. of case law involving issues withholding of removal, which is the A commenter requested that the surrounding gender and applications for protection that implements Article 33 of Departments not eliminate one of the asylum or for statutory withholding of the Convention, cf. R–S–C– v. Sessions, few protections for gender-based removal. To the extent that the 869 F.3d 1176, 1188, n.11 (10th Cir. violence. Departments’ inclusion of ‘‘gender’’ as 2017) (explaining that ‘‘the Refugee Another commenter noted the an example of a nexus basis that Convention’s non-refoulement Department of State’s work to reduce generally will not support a favorable principle—which prohibits the and eliminate gender-based violence, adjudication conflicts with the provided deportation of aliens to countries where including emphasizing in the refugee case law, the Departments reiterate the the alien will experience persecution— protection context that the discussion in Section II.C.4.3 of this is given full effect by the Attorney ‘‘empowerment and protection of preamble regarding Brand X. The General’s withholding-only rule’’). In women and girls has been a central part Departments invoke their authority to the withholding of removal context, the of U.S. foreign policy and national interpret the ambiguities in the Act, Departments disagree with commenters security’’ and that ‘‘gender-based including what constitutes harm on that the rule will violate the United violence[ ] is a critical issue’’ that is account of a protected ground, outside States’ non-refoulement obligations ‘‘intricately linked to’’ the Department’s the bounds of any prior judicial because such claims are not, without strategic goals. constructions. See Brand X, 545 U.S. at more, meritorious. Finally, a commenter made numerous 982 (explaining that agencies are not In addition, the Departments note that unsupported claims, including that the bound by prior judicial interpretations commenters asserted that violating a so- inclusion of gender violates the of ambiguous statutory interpretations called ‘‘specific and universal obligation constitutional guarantee of equal because there is a presumption that to prevent domestic violence and other protection; that the inclusion of gender Congress left statutory ambiguity for the violence against women’’ was a viable in the laundry list is contrary to the agencies to resolve). claim under the ATCA. The evidence; and that the NPRM’s failure to Regarding commenters’ specific Departments further note, however, that include a rationale for listing gender as objections to the Departments’ use of the ‘‘aiding and abetting’’ violations of failing the nexus requirement is, Niang, the Departments agree that the the law of nations is not currently without more, sufficient to render that section following the quote in the recognized as within the scope of the inclusion arbitrary. NPRM stated that the issue surrounding ATCA. Doe v. Nestle, S.A., 929 F.3d 623 Response: Regarding commenters’ gender is the nexus determination. This (9th Cir. 2019), cert. granted sub nom. concerns that gender and ‘‘private does not undermine, but enhances, the Nestle USA, Inc. v. Doe I, No. 19–416, criminal acts’’ would no longer be inclusion of gender in the listed 2020 WL 3578678 (July 2, 2020), and recognized as a viable claim, the circumstances that, without more, will cert. granted sub nom. Cargill, Inc. v. Departments again note that the rule, not generally result in favorable Doe I, No. 19–453, 2020 WL 3578679 after listing the eight situations that will adjudication based on nexus. Niang (July 2, 2020). Moreover, the generally not result in favorable goes on to place more limits on a commenters failed to demonstrate that adjudication, also notes that in rare specific gender-based particular social such a claim would ‘‘rest on a norm of circumstances, given the fact-specific group: ‘‘It may well be that only certain international character accepted by the nature of such determinations, such women—say, those who protest civilized world and defined with a facts could be the basis for finding inequities—suffer harm severe enough specificity comparable to the features of nexus. Although the nexus requirement to be considered persecution. The issue the 18th-century paradigms,’’ such as for an asylum claim requires scrutiny then becomes whether the protesting violation of safe conducts, infringement when an asserted particular social group women constitute a social group.’’ of the rights of ambassadors, or piracy, encompasses ‘‘millions’’ of individuals, Niang, 422 F.3d at 1200. This tracks that the Court has recognized. Sosa v. Matter of A–C–A–A–, 28 I&N Dec. 92, with the rule: Harm on account of Alvarez-Machain, 542 U.S. 692, 724–25 the rule does not categorically bar all gender alone will generally result in (2004). gender-based asylum claims contrary to unfavorable adjudication. Much of the commenters’ concern the assertions of commenters. In other Another commenter pointed to the regarding the inclusion of gender arises words, the rule does not completely UNHCR’s approach toward gender and from a misunderstanding of the prohibit applications with a nexus numerosity. While the Departments complexity of particular social groups related to issues of gender from being appreciate the comment, they note that and the role of mixed-motive analysis. granted, and the inclusion of gender in they are not bound by the UNHCR, and The Departments explain that the the list of circumstances that generally commenters’ reliance on guidance from inclusion of gender indicates that, does not constitute harm on account of UNHCR is misplaced. UNHCR’s generally, a claim based on gender, a protected ground does not conflict interpretations of or recommendations without additional evidence, will not be with the requirement that adjudicators regarding the Refugee Convention and favorably adjudicated in regards to the consider each application on a case-by- Protocol, such as set forth in the nexus claim. However, it does not read, case basis. Further, a purpose for the UNHCR Handbook, are ‘‘not binding on nor should it be interpreted to mean, amendments was to allow for increased the Attorney General, the BIA, or United that the inclusion of gender in the claim clarity and more uniform adjudication States courts.’’ INS v. Aguirre-Aguirre, is fatal. Rather, a claim based on gender than the prior scheme which was 526 U.S. at 427. ‘‘Indeed, the Handbook alone will generally be insufficient. As shaped through case law. Thus, the itself disclaims such force, explaining to the role of mixed motive analysis, the Departments do not believe that the that ‘the determination of refugee status text of the NPRM acknowledges mixed inclusion of gender in the listed under the 1951 Convention and the motive claims by quoting the REAL ID

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Act of 2005 that defined the nexus The Departments disagree with applicant’s fear of harm. 8 CFR 208.1(g), element as requiring that one of the five commenters that the rule must show 1208.1(g). protected grounds be ‘‘at least one that gender is not the cause of harm Some commenters alleged that the central reason for persecuting the around the world in order to include NPRM created a vague new evidentiary applicant.’’ 85 FR at 36281. Further, the gender in the list of circumstances that bar. Other commenters opined that the NPRM explicitly detailed that it was generally does not constitute harm on provision excludes necessary and providing guidance on what would not account of a protected ground. Indeed, critical evidence; some alleged that the be considered one of the five protected these comments miss the purpose of this NPRM was ‘‘part of [the Departments’] grounds; the NPRM did not state, nor discussion in the rule. The Departments efforts to make it harder for asylum was it meant to be construed, that it do not make any statement about the seekers to present their cases,’’ precluded mixed motive analysis if the question or prevalence of gender-based including claims based on particular situation involved one of the five harm in other countries, but instead the social groups. Commenters also worried protected grounds in addition to a point is that such harm is not on that the changes would unfairly situation on the list that was not account of a protected ground and advantage the government and violate adjudicated to be a protected ground.56 accordingly generally fails to support a due process. Other commenters valid claim to asylum or to statutory expressed concern that the amendments 56 The Departments note that gender was not withholding of removal. As noted would place a larger burden on included among other broad categories, such as race elsewhere, asylum is not designed to adjudicators as they would be presented or nationality, as a basis for refugee status in either with difficult and time-consuming the 1951 Refugee Convention or the 1980 Refugee provide relief from all manners of harm Act. Further, no precedential decision has that may befall a person. See, e.g., factual and legal issues. Regarding well- unequivocally recognized gender, standing alone, as Gjetani, 968 F.3d at 397–98. founded fear, a commenter alleged that a basis for asylum. See, e.g., Fisher v. INS, 79 F.3d The Departments further disagree the distinction between widespread, 955, 963 (9th Cir. 1996) (en banc) (‘‘Persecution on with commenters’ statements that the systemic laws or policies—evidence account of sex is not included as a category allowing relief under section 101(a)(42)(A) of the inclusion of gender violates the used to support a well-founded fear of Act.’’). The Departments further note that gender constitutional guarantee of equal persecution—and cultural stereotypes is has frequently been analyzed by circuit courts in protection. The rule does not provide so narrow that it will result in a the context of the definition of a particular social any benefits or discriminate on the basis ‘‘quagmire of confusion’’ and ‘‘countless group, rather than under the rubric of nexus, though the courts themselves are in disagreement over the of one gender over another. hours and resources of litigation.’’ issue. See Matter of A–C–A–A–, 28 I&N at 91 Other commenters noted the severe Other commenters claimed that (‘‘Although I do not decide the matter in this case, problem of gender-based violence, cultural stereotypes were necessary for I note that there has been disagreement among the especially in the global coronavirus well-founded fear of persecution claims courts of appeals about whether gender-based groups may constitute a particular social group pandemic, and the extensive work the and were utilized in country condition within the meaning of the INA.’’). At least three Department of State is undertaking to reports. For example, a commenter circuits have concluded that gender is too broad or reduce and eliminate gender-based argued that the Department of State’s sweeping to constitute a particular social group violence. The Departments agree with country reports contain cultural itself. See Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991) (‘‘Like the traits which distinguish the other commenters regarding the severity of stereotypes. As evidence of this claim, four enumerated categories-race, religion, the problem and the good work being the commenter included three quotes nationality and political opinion-the attributes of a done across the Federal government to from the Human Rights Report for particular social group must be recognizable and address the problem. As previously Guatemala: ‘‘[a] culture of indifference discrete. Possession of broadly-based characteristics such as youth and gender will not by itself endow mentioned, however, the narrow asylum to detainee rights put the welfare of individuals with membership in a particular statutes are not drafted to provide detainees at risk’’; ‘‘[t]raditional and group.’’), Safaie v. INS, 25 F.3d 636, 640 (8th Cir. redress for every problem. The cultural practices, in addition to 1994) (‘‘We believe this category is overbroad, Departments must act within the legal discrimination and institutional bias, because no factfinder could reasonably conclude that all Iranian women had a well-founded fear of framework set out by Congress. however, limited the political persecution based solely on their gender.’’); Da participation of women and members of 4.5. Evidence Based on Stereotypes Silva v. U.S. Att’y Gen., 459 F. App’x 838, 841 (11th indigenous groups’’; and ‘‘[i]ndigenous Cir. 2012) (‘‘The BIA determined that ‘women’ was Comment: Commenters expressed communities were underrepresented in too broad to constitute a particular social group. We numerous reservations and agree that such a group is too numerous and national politics and remained largely broadly defined to be considered a ‘social group’ disagreements with the Departments’ outside the political, economic, social, under the INA.’’). Another circuit has quoted the regulation regarding the admissibility of and cultural mainstream.’’ Further, the language in Gomez approvingly. Lukwago v. evidence based on or promoting commenter asserted that this was Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003). Still another has rejected ‘‘generalized sweeping stereotypes to support the basis of an evidence that ‘‘it would be impossible to classifications for asylum,’’ while noting that the discuss conditions in any country Board ‘‘has never held that an entire gender can 1779 & n.45 (2020) (‘‘while the Court does not without discussing its culture and constitute a social group under the INA.’’ Rreshpja define what it means by a transgender person, the without engaging in at least some v. Gonzales, 420 F.3d 551, 555 (6th Cir. 2005). One term may apply to individuals who are ‘gender circuit has intimated that gender alone could suffice fluid,’ that is, individuals whose gender identity is stereotyping.’’ The commenter to constitute a particular social group, though it mixed or changes over time.’’ (Alito, J. dissenting)). extrapolated this onto several other remanded the case to the Board to address that Further, because every alien has a gender of some elements of an asylum claim, including issue in the first instance. Perdomo, 611 F.3d at classification, gender may not carry sufficient a subjectively genuine and objectively 667; but see Rreshpja, 420 F.3d at 555 (‘‘We do not particularity to warrant classification as a particular necessarily agree with the Ninth Circuit’s social group. Cf. Matter of L–E–A-, 27 I&N Dec. at reasonable fear of harm and a socially determination that virtually all of the women in 593 (‘‘Further, as almost every alien is a member of distinct, particular social group. Somalia are entitled to asylum in the United a family of some kind, categorically recognizing A commenter opined that this States.’’). Further, although gender is generally families as particular social groups would render provision was evidence that the regarded as an immutable characteristic, see e.g., virtually every alien a member of a particular social Kauzonaite v. Holder, 351 F. App’x 529, 531 (2d group. There is no evidence that Congress intended Departments ‘‘fail[ed] to engage in Cir. 2009) (‘‘However, although gender is an the term ‘particular social group’ to cast so wide a reasoned decision making’’; the immutable characteristic. . . gender alone is net.’’). In short, although the rule considers gender commenter continued by claiming that insufficient to identify a particular social group.’’), under the category of nexus, it may also be the NPRM ‘‘raises doubts about whether modern notions of gender fluidity may raise appropriately considered under the definition of questions about that assumption in individual ‘‘particular social group’’ as well, as the lists under the agency appreciates the scope of its cases. Cf, e.g., Bostock v. Clayton, 140 S.Ct. 1731, both definitions are nonexhaustive. discretion or exercised that discretion in

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a reasonable manner.’’ Dep’t of appropriate evidence to support such Mitondo v. Mukasey, 523 F.3d 784, 788 Homeland Sec. v. Regents of the Univ. asylum determinations.’ ’’ (quoting (7th Cir. 2008) (‘‘Most claims of of Cal., 140 S. Ct. 1891, 1905 (2020) Matter of A–B–, 27 I&N Dec. at 336 n.9)). persecution can be neither confirmed (quoting Michigan v. EPA, 576 U.S. 743, Reliance on stereotypes about a nor refuted by documentary evidence. 750 (2015) (internal quotation marks country, race, religion, nationality, or Even when it is certain that a particular omitted)).57 Finally, commenters gender is inconsistent with the incident occurred, there may be doubt asserted that the provision’s purported individualized consideration asylum about whether a given alien was among application only to aliens and not to claims require. Further, by definition, the victims. Then the alien’s oral DHS represented an unfair asymmetry stereotypes are not subject to narration must stand or fall on its own because there was no prohibition of verification and have little intrinsic terms. Yet many aliens, who want to DHS filing evidence promoting probative value; to the contrary, they remain in the United States for stereotypes in opposition to asylum frequently undermine credibility economic or social reasons unrelated to applications. considerations that are important to an persecution, try to deceive immigration Response: The Departments reject the asylum claim. Cf. Thomas v. Eastman officials.’’). Thus, adjudicators are characterization of the rule regarding Kodak Co., 183 F.3d 38, 61 (1st Cir. certainly seasoned in assessing evidence admissibility of evidence based on 1999) (‘‘The concept of ‘stereotyping’ that is not subject to verification and has stereotypes as a new evidentiary bar. includes not only simple beliefs such as minimal probative value in the context Numerous courts, and the BIA, have ‘women are not aggressive’ but also a of asylum claims. made clear that the Federal rules of host of more subtle cognitive Nevertheless, the Departments believe evidence do not apply in immigration phenomena which can skew that the harms associated with the use proceedings, but the evidence must be perceptions and judgments.’’). Instead, of evidence rooted in stereotypes far probative and its admission may not be they reflect ‘‘a frame of mind resulting outweigh what little, if any, probative fundamentally unfair. See, e.g., from irrational or uncritical analysis.’’ value such evidence may have in an Rosendo-Ramirez v. INS, 32 F.3d 1085, Nguyen v. INS, 533 U.S. 53, 68 (2001). asylum claim. Accordingly, the rule 1088 (7th Cir. 1994); Baliza v. INS, 709 Thus, even ‘‘benevolent’’ stereotypes are does not represent a wholly new F.2d 1231, 1233 (9th Cir. 1983); generally disfavored in law. Cf. evidentiary bar per se, but rather a Tashnizi v. INS, 585 F.2d 781, 782–83 International Union, United Auto., codification of the point that such (5th Cir. 1978); Trias-Hernandez v. INS, Aerospace & Agric. Implement Workers stereotypes will not meet the existing 528 F.2d 366, 369 (9th Cir. 1975); of Am. v. Johnson Controls, 499 U.S. admissibility standards because they are Marlowe v. INS, 457 F.2d 1314, 1315 187, 199–200 (1991) (stating, in rejecting inherently not probative. Contrary to (9th Cir. 1972); Matter of Toro, 17 I&N employer policy related to female commenters’ suggestions, such evidence Dec. 340, 343 (BIA 1980); Matter of Lam, fertility due to potential exposure to should not be necessary to an asylum 14 I&N Dec. 168, 170 (BIA 1972). As the fetal hazards, that the ‘‘beneficence of application. Even if such stereotypes rule makes clear, ‘‘conclusory assertions an employer’s purpose does not were admitted into evidence, they of countrywide negative cultural undermine the conclusion that an would be given little to no weight for stereotypes’’ are not probative of any of explicit gender-based policy is sex the reasons stated above. Further, to the the eligibility grounds for asylum. discrimination’’). In short, stereotypes extent that an applicant’s claim is Matter of A–B–, 27 I&N Dec. at 336 n.9. about another individual or country supported only by the applicant’s For example, in Matter of A–B–, the have little place in American law as personal stereotypes about a country or Attorney General determined that the evidence supporting any type of claim. the alleged persecutor, that claim is evidence submitted in Matter of A–R–C– See United States v. Bahena-Cardenas, likely unmeritorious in the first G–, 26 I&N Dec. 388 (BIA 2014), ‘‘an 411 F.3d 1067, 1078 (9th Cir. 2005) instance. unsourced partial quotation from a news (‘‘Refusing to allow expert testimony Further, the Departments disagree article eight years earlier,’’ was not that would encourage or require jurors with commenter assertions that the term appropriate evidence to support the to rely on cultural stereotypes is not an ‘‘cultural stereotypes’’ is vague. As ‘‘broad charge’’ that Guatemala had a abuse of discretion.’’). alluded to above, the concept of ‘‘ ‘culture of machismo and family To be sure, asylum claims are stereotyping is well-established in violence.’ ’’ Matter of A–B–, 27 I&N Dec. generally rooted in hearsay, frequently American jurisprudence, and legal at 336 n.9 (quoting Matter of A–R–C–G– cannot be confronted or rebutted, and questions regarding stereotypes, , 26 I&N Dec. at 394). Similarly, the rule are typically uncorroborated except by especially stereotypes about foreign establishes that such unsupported other hearsay evidence. See, e.g., Angov, countries, arise in a variety of settings. stereotypes are not admissible as 788 F.3d at 901 (‘‘ ‘The specific facts See, e.g., United States v. Ramirez, 383 probative evidence. 85 FR at 36282 supporting a petitioner’s asylum F.Supp.2d 1179, 1180 (D. Neb. 2005) (‘‘pernicious cultural stereotypes have claim—when, where, why and by whom (collecting cases excluding testimony no place in the adjudication of he was allegedly persecuted—are based on cultural stereotypes of applications for asylum and statutory peculiarly within the petitioner’s grasp. different foreign countries); United withholding of removal, regardless of By definition, they will have happened States v. Velasquez, No. CR 08–0730 the basis of the claim’’); see also Matter at some time in the past—often many WHA, 2011 WL 5573243, at *3 (N.D. of A–C–A–A–, 28 I&N Dec. at 91 n.4 years ago—in a foreign country. In order Cal. 2011) (not permitting a ‘‘cultural (‘‘Furthermore, the Board should for the [DHS] to present evidence defense’’ expert witness to testify ‘‘as remember on remand that ‘conclusory ‘‘refuting or in any way contradicting’’ his opinions are based on cultural assertions of countrywide negative petitioner’s testimony, it would have to stereotypes and generalizations that cultural stereotypes . . . neither conduct a costly and often fruitless have no probative value in this case’’ contribute to an analysis of the investigation abroad, trying to prove a and permitting a ‘‘mental condition particularity requirement nor constitute negative—that the incidents petitioner expert’’ to testify on the condition that alleges did not happen.’ ’’ (quoting he ‘‘refrain from offering testimony 57 The Departments respond to allegations of Abovian v. INS, 257 F.3d 971, 976 (9th based on stereotypes and/or failure to engage in reasoned decision making Cir. 2001) (Kozinski, J., dissenting from generalizations of Guatemalan, Mayan, below in section II.C.6.2. denial of pet’n for reh’g en banc))); Mam or any other culture’’); see also

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Bahena-Cardenas, 411 F.3d at 1078 Fuentes Cabrera was held in stereotype such that it would fall under (‘‘Refusing to allow expert testimony confinement while awaiting trial for the rule. Further, it does not suggest that that would encourage or require jurors personal injury charges after a car indigenous individuals possess some to rely on cultural stereotypes is not an accident. Fuentes died from internal inherent trait—as opposed to larger abuse of discretion.’’). Moreover, thoracic injury hours before his structural factors in the country—that existing Department policies forbid the scheduled trial and without having causes them to be underrepresented in use of generalized stereotypes in law received a medical exam, while his wife national politics. Thus, it is also based enforcement activities. See U.S. Dep’t of and the passenger of the other vehicle on evidence rather than a stereotype. Justice, Guidance for Federal Law were taken for medical care.’’ U.S. Dep’t Other commenters expressed concern Enforcement Agencies Regarding the of State, 2019 Country Reports on that this portion of the rule would place Use of Race, Ethnicity, Gender, National Human Rights Practices: Guatemala 6 a larger burden on adjudicators. The Origin, Religion, Sexual Orientation, or (2019), https://www.state.gov/reports/ Departments appreciate both the Gender Identity 4 (2014) (‘‘Reliance 2019-country-reports-on-human-rights- comment and the underlying concern. upon generalized stereotypes involving practices/guatemala. Further, the report But, as noted above, adjudicators at both the listed characteristics is absolutely nowhere alleges that Guatemalans are Departments are experienced in forbidden.’’), https://www.justice.gov/ indifferent to detainee rights because of assessing evidence of little-to-no sites/default/files/ag/pages/ some cultural trait peculiar to probative value, and immigration judges attachments/2014/12/08/use-of-race- Guatemalans. Thus, not only do these at DOJ are already experienced at ruling policy.pdf. Thus, the Departments do statements not promote any particular on evidentiary objections as a matter of not believe that adjudicators will have cultural stereotype about Guatemalans course in immigration proceedings. difficulty understanding the rule’s based on race, religion, nationality, Thus, the Departments do not believe reference to ‘‘cultural stereotypes.’’ gender or similar characteristic, but they that this portion of the rule will increase The Departments also disagree with are supported by some facts. In short, any burden beyond what adjudicators commenter assertions that it will be this statement reflects verifiable facts, already face. The definition of ‘‘cultural difficult to distinguish between not a stereotype. stereotypes’’ is straightforward; the widespread, systemic laws or policies— The second alleged stereotype was Departments have confidence that a form of accepted evidence to establish that ‘‘[t]raditional and cultural practices, adjudicators will be able to apply such a well-founded fear—and cultural in addition to discrimination and a definition in a timely and fair manner. stereotypes. The Departments are institutional bias, . . . limited the Nevertheless, in response to some of the seeking to bar admissibility of non- political participation of women and apparent confusion by some probative evidence of the kind members of indigenous groups.’’ Once commenters, the Departments have described in Matter of A–B–, broad again, the report went on to detail the modified the language in the final rule cultural stereotypes that have no place low numbers of women and indigenous to make it clearer. The change does not in an impartial adjudication. Evidence people in the government to support its reflect a substantive modification from of systemic laws or policies is more conclusion. Id. at 12–13. Elsewhere in what was intended in the NPRM. probative and concrete than the report, the State Department The Departments reject the unsupported assertions of reductive included specific information about commenters’ assertions that this rule cultural stereotypes. For example, bald sexual harassment: ‘‘No single law, was passed with bad intent. One aim of statements that a country, as a whole, including laws against sexual violence, this rule is to allow a more expeditious has a particular cultural trait that causes deals directly with sexual harassment, adjudication of meritorious asylum certain members of that country to although several laws refer to it. Human claims so that applicants do not have to engage in persecution is evidence that rights organizations reported sexual wait a lengthy amount of time before has no place in an adjudication. In harassment was widespread.’’ Id. at 17. receiving relief. The Departments agree contrast, evidence that a country’s Similarly, the report contained specific with the commenter who stated that leader has instituted a program to carry information about discrimination: many asylum applications require at out systematic persecution against ‘‘Although the law establishes the least some discussion of the culture of certain groups would be highly principle of gender equality and the country to which the applicant fears probative evidence. General assertions criminalizes discrimination, women, return. However, the Departments of cultural stereotypes are inherently and particularly indigenous women, disagree with the commenter’s conclusory, reductive, and unhelpful to faced discrimination and were less assertions that some level of the adjudicator or trier of fact—in likely to hold management positions.’’ stereotyping would be helpful to the addition to being harmful in and of Id. The Departments do not see how this applicant’s claim. Stereotypes are themselves—and should not be broad statement suggests a stereotype inherently unsupported generalizations. admissible. about an alleged persecutor for purposes Such conclusory statements are not In support of the claim that cultural of supporting an asylum claim such that probative and can indeed be harmful, as stereotypes are necessary for many it would fall within the ambit of the discussed above. asylum claims, one commenter rule. Moreover, it is, again, based on Further, the Departments disagree presented three excerpts from a evidence rather than a stereotype. with the commenter who asserted that Department of State Human Rights The final alleged stereotype contained the rule would disadvantage the Report on Guatemala. The Departments in the report was that ‘‘[i]ndigenous applicant and violate due process. As appreciate the commenter’s examples, communities were underrepresented in discussed above, an applicant’s inability but they do not reflect assertions of national politics and remained largely to submit nonprobative evidence neither pernicious cultural stereotypes outside the political, economic, social, disadvantages the applicant nor violates described in this rulemaking. and cultural mainstream.’’ This quote due process. The first alleged stereotype was that was also followed by supporting Finally, in response to commenters’ ‘‘[a] culture of indifference to detainee statements, including details regarding concerns about the perceived rights put the welfare of detainees at indigenous leaders who were killed. Id. asymmetry of the rule, the Departments risk.’’ However, the report goes on to at 20–21. Again, the Departments do not note that DHS is already bound by state: ‘‘On August 22, Ronald Estuardo see how this broad statement suggests a policy to treat stakeholders, including

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aliens, in a non-discriminatory manner. relocation analysis in proposed 8 CFR preferable. Specifically, increasing the DHS therefore may not rely on 208.13(b)(3) and 1208.13(b)(3). First, burden would be inappropriate, stereotype evidence to oppose an commenters expressed concern that the commenters argued, because asylum asylum application. See U.S. list places too much weight on the seekers would have already established Immigration and Customs Enforcement, identity and reach of the persecutor, and past persecution and that the Office of Diversity and Civil Rights, that it lacks factors pertaining to the government is unable or unwilling to https://www.ice.gov/leadership/dcr (‘‘It asylum seeker and factors unrelated to protect them. is U.S. Immigration and Customs the asylum application (such as country One commenter noted that the Enforcement’s (ICE) policy to ensure conditions). proposed change to the burden of proof that employees, applicants for Second, commenters asserted that the is unnecessary because DHS could offer employment and all stake holders are proposed list inappropriately implies information evidencing that internal treated in a non-discriminatory manner that asylum seekers coming from large relocation is reasonable, and then the in compliance with established laws, countries or who are subjected to applicant could respond to such regulations and Executive Orders.’’); cf. persecution from a single source can information. Doe v. Att’y Gen., 956 F.3d 135, 155 reasonably relocate internally. Some One commenter argued that the n.10 (3d Cir. 2020) (‘‘The applicant’s commenters argued that persecution proposed change to the burden of proof specific sexual practices are not relevant does not end at the limits of political in the case of non-state actors unfairly to the claim for asylum or refugee status. jurisdictions and that persecutors could targets asylum seekers from Central Therefore, asking questions about ‘what have contacts throughout a country or American countries and Mexico because he or she does in bed’ is never region. One commenter noted that the types of individuals and groups that appropriate.’’ (quoting USCIS, RAIO UNHCR guidance does not require an would be considered non-state actors Directorate—Officer Training: Guidance asylum seeker to prove that his or her under the proposed rule are commonly for Adjudicating Lesbian, Gay, Bisexual, entire home country is unsafe before cited persecutors in asylum cases Transgender, and Intersex (LGBTI) seeking asylum. Similarly, one pertaining to these countries. Refugee and Asylum Claims 34 (Dec. 28, commenter expressed concern with the Response: To respond to commenters’ 2011))). Further, although Federal case proposed definition of the term concerns that ‘‘almost no applicant . . . law is clear that stereotypes have no ‘‘safety,’’ arguing that there has been no would be able to meet’’ the revised place as a basis to deny asylum judicial disagreement or confusion standard for reasonableness of internal applications, e.g., Doe, 956 F.3d at 155 pertaining to the current regulation and relocation, the Departments reject that n.10 (collecting cases), there is no that the proposed definition would limit concern as speculative. The similar Federal case law regarding the adjudicators’ ability to perform case-by- Departments also reject a commenter’s use of stereotypes as a basis for granting case analyses. allegation that the factors in this section asylum applications, and the issue of Third, commenters argued that the were ‘‘justifications to deny applications the reliance on stereotypes to support an proposed rule inappropriately focuses of bona fide asylum seekers.’’ These asylum application has arisen only on an asylum seeker’s ability to travel to factors are relevant and material to an recently, Matter of A–B–, 27 I&N Dec. at the United States. Commenters noted a alien’s asylum eligibility, as discussed 336 n. 9. Consequently, as both lack of jurisprudence discussing ability in further detail below. immigration judges and DHS are already to travel and alleged that since asylum The Departments emphasize that the bound by policy, if not also law, not to seekers had to first travel to the United rule requires adjudicators to consider rely on stereotypes as a basis to oppose States to make a claim, the factor would ‘‘the totality of the relevant or deny an asylum application, the rule lead to the denial of most applications. circumstances’’ (as stated in 8 CFR does not create any asymmetry Fourth, commenters similarly 208.13(b)(3), 1208.13(b)(3) (asylum); regarding evidence of stereotypes. To expressed concern that the proposed 208.16(b)(3), 1208.16(b)(3) (statutory the contrary, it corrects an existing rule would eliminate the reasonableness withholding of removal)) when asymmetry to ensure that asylum analysis, thus forcing adjudicators to determining the reasonableness of applications are not granted based on ignore the overall context of an asylum internal relocation. The Departments inappropriate evidence of stereotypes. applicant’s plight. One commenter note that the proposed list identifies the argued that many cases have been sent ‘‘most relevant’’ circumstances for 4.6. Internal Relocation to the BIA from Federal courts so that consideration and provides a Comment: Commenters generally adjudicators could apply the current streamlined presentation of those expressed concern that the NPRM reasonableness test to internal factors. See 85 FR at 36282. The list of would create a standard for the relocation determinations. factors in paragraph (b)(3) is not analyzing the reasonableness of internal Finally, commenters took issue with exhaustive, however, so the regulatory relocation that almost no applicant for the NPRM’s assertion that 8 CFR amendments do not foreclose asylum, withholding of removal, or 208.13(b) and 1208.13(b) include consideration of factors mentioned by protection under the CAT regulations ‘‘unhelpful’’ language that undermines commenters, such as factors related to would be able to meet.58 the need for the entire section. the particular asylum seeker or factors Commenters expressed several Commenters noted that Federal courts unrelated to the asylum application. concerns with the proposed list of and the BIA have almost unanimously This approach is not a one-size-fits-all factors pertaining to the internal endorsed the current language and have analysis, as one commenter alleged. not raised such concerns. Rather, the totality of the relevant 58 The Departments note that consideration of Commenters also expressed concern circumstances test allows adjudicators internal relocation in the context of an application with the proposed regulation’s change for withholding of removal under the CAT to consider each case individually. regulations is different than the consideration of to the burden of proof for asylum Relatedly, the Departments disagree internal relocation in the context of an application seekers who establish they were that the list of factors afford inordinate for asylum and statutory withholding of removal. subjected to past persecution by a non- weight to the identity and reach of the Compare, e.g., 8 CFR 1208.13(b)(3), 1208.16(b)(3) governmental entity. Commenters persecutor or that adjudicators must (assessing the reasonableness of internal relocation), with 1208.16(c)(3)(ii) (assessing internal relocation argued that, contrary to the NPRM’s make determinations in a vacuum. As a without reference to reasonableness). assertion, the current regulations are baseline matter, asylum is a form of

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discretionary relief for which an provisions.’’ Id. The Departments persecutor.’’ 8 CFR 208.13(b)(3), applicant must demonstrate to the believe that the rulemaking will better 1208.13(b)(3) (asylum); 208.16(b)(3), Secretary or Attorney General that he or serve the needs of adjudicators who will 1208.16(b)(3) (statutory withholding of she, inter alia, is a refugee as defined in benefit from the addition of factors that removal). Moreover, the Departments section 101(a)(42) of the Act, 8 U.S.C. more adequately assess relevant disagree with a commenter’s allegation 1101(a)(42), and warrants a favorable considerations for internal relocation that the rule redefines safety—neither exercise of discretion. INA 208(b)(1)(A), and the elimination of less relevant the proposed rule nor this final rule 8 U.S.C. 1158(b)(1)(A); Cardoza- factors. Despite commenters’ redefines ‘‘safety.’’ Fonseca, 480 U.S. at 428 n.5; 8 CFR disagreements with the new list of The Departments disagree that the 208.14(a), (b), 1208.14(a), (b). To factors, the Departments believe that the factor assessing the alien’s ability to determine whether the applicant is a regulations must clearly and accurately travel to the United States is refugee under section 101(a)(42) of the guide adjudicators in assessing the inappropriate. First, this factor is Act, 8 U.S.C. 1101(a)(42), the reasonableness of internal relocation. considered under the totality of the Departments assess the applicant’s ‘‘fear The Departments anticipate that the circumstances; thus, this factor’s of persecution,’’ which includes new regulations will facilitate more presence will not automatically result in whether the applicant could relocate to accurate and timely determinations, one determination or another. The avoid future persecution and whether it given that adjudicators will spend most Departments added this factor so that would be reasonable to do so. See of their time considering the most adjudicators would fully consider Melkonian v. Ashcroft, 320 F.3d 1061, relevant factors and less time whether an alien had already traveled a 1069 (9th Cir. 2003) (requiring a finding considering less relevant factors or great distance to relocate to the United that an alien could relocate to avoid trying to determine whether certain States, and whether the alien’s ability to persecution and that it ‘‘must be factors are relevant. This is especially do so reflected a similar ability to reasonable to expect them to do so’’ significant considering the relocate within the country from which (citing Cardenas v. INS, 294 F.3d 1062, unprecedented pending caseload and the alien is seeking protection. Second, 1066 (9th Cir. 2002)); see also Singh v. the need for efficient adjudication. See in contrast to commenters, the Ilchert, 63 F.3d 1501, 1511 (9th Cir. EOIR, Adjudication Statistics: Total Departments believe that a lack of Asylum Applications (Oct. 13, 2020), 1995) (permitting the Attorney General jurisprudence on this factor counsels in https://www.justice.gov/eoir/page/file/ to assess an alien’s ability to relocate to favor of including it in the regulation. 1106366/download. Given these a safer part of the country). The Act Nor do the Departments find the lack of revisions to the regulations, adjudicators does not require consideration of directly relevant jurisprudence are not left to make determinations ‘‘in internal relocation. See generally INA surprising. Because the current 208, 8 U.S.C. 1158. Rather, this analysis a vacuum,’’ as commenters suggested. Accordingly, the Departments regulations do not highlight an alien’s was implemented by regulation to ability to travel to the United States as address whether ‘‘an [asylum] applicant determined that the following factors were most relevant to an adjudicator’s one of the most relevant factors, courts may be able to avoid persecution in a would have had little reason to consider particular country by relocating to analysis: ‘‘the size of the country of nationality or last habitual residence, this factor unless a party raised it. See, another area of that country.’’ Asylum e.g., Garcia-Cruz v. Sessions, 858 F.3d 1, Procedures, 65 FR 76121 (Dec. 6, 2000). the geographic locus of the alleged persecution, the size, reach, or 8–9 (1st Cir. 2017) (remanding the case This rule would refine those numerosity of the alleged persecutor, to the BIA to consider the regulations, which agencies may do so and the applicant’s demonstrated ability reasonableness factors specifically long as they give a reasoned explanation to relocate to the United States in order provided in the regulations); Khattak, for the change. See, e.g., Encino to apply for asylum.’’ 8 CFR 704 F.3d at 203–04 (same). Motorcars, LLC v. Navarro, 136 S. Ct. 208.13(b)(3), 1208.13(b)(3) (asylum); Nevertheless, case law has considered 2117, 2125 (2016) (‘‘Agencies are free to 208.16(b)(3), 1208.16(b)(3) (statutory travel-related factors such as an alien’s change their existing policies as long as withholding of removal). The return trips or previous relocations. See, they provide a reasoned explanation for Departments do not imply that this list e.g., Ullah v. Barr, No. 18–28912020 WL the change.’’ (citing Brand X, 545 U.S. compels the conclusion that asylum 6265858, at *1–2 (2d Cir. Oct. 26, 2020) at 981–82)). seekers who come from large countries (holding that country’s lack of As the Departments explained in the or who were subjected to persecution restriction on internal movement or NPRM, the changes are necessary for from a single source can reasonably relocation and alien’s ability to work numerous reasons. First, the relocate internally, as commenters and move around the country without Departments believe the ‘‘current alleged. Instead, the Departments find incident supported the BIA’s finding regulations regarding internal relocation those factors ‘‘most relevant’’ for that the alien could safely relocate to inadequately assess the relevant adjudicators to consider in determining avoid future persecution); Gambashidze considerations.’’ 85 FR at 36282. whether internal relocation is v. Ashcroft, 381 F.3d 187, 193 (3d Cir. Second, the Departments changed the reasonable—not that those factors 2004) (considering, in part, that the regulatory burdens of proof because the absolutely indicate that internal alien and his family relocated to a city Departments determined that the relocation is reasonable. 85 FR at 36282. that ‘‘is not a great distance’’ from the burdens should generally align with Furthermore, as noted above, the listed city where they faced persecution before those ‘‘baseline assessments of whether relevant factors are not exhaustive and the alien relocated again to the United types of persecution generally occur adjudicators may consider other factors States); Belayneh v. I.N.S., 213 F.3d 488, nationwide, while recognizing that that may be relevant to a particular case. 491 (9th Cir. 2000) (holding that the exceptions, such as persecution by local As commenters pointed out, the alien had not established a reasonable governments or nationwide Departments recognize that persecutors fear of future persecution in part organizations, might overcome these may not be confined to political because she had ‘‘traveled to the United presumptions.’’ Id. Third, the jurisdictions, which is already reflected States and returned to Ethiopia three Departments made amendments to in the factor assessing the ‘‘size, reach, times without incident’’). These cases facilitate ‘‘ease of administering these or numerosity of the alleged provide examples in which courts

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recognized that the ability and totality of the circumstances and the In the final rule, DHS still bears the willingness to travel and the distance nonexhaustive list of factors provided, burden to demonstrate that the traveled are all relevant to the will continue to allow adjudicators to applicant could relocate to avoid future reasonableness inquiry because they assess internal relocation on a case-by- persecution and that it would be may indicate the extent to which an case basis. reasonable for the applicant to do so in alien is physically or financially able to Although commenters alleged that the case of a governmental persecutor (8 travel. In that same vein, the Federal courts and the BIA have ‘‘nearly CFR 208.13(b)(3)(ii), 1208.13(b)(3)(ii) Departments have determined that an unanimously endorsed’’ the previous (asylum); 208.16(b)(3)(ii), alien’s ability to travel to the United regulations, the cases referenced in 1208.16(b)(3)(ii) (statutory withholding States is clearly relevant and support of their allegations merely of removal)), and the alien bears the appropriate to the reasonableness apply the previous regulations. Judicial burden to demonstrate that it would be inquiry. application of regulations cannot be reasonable to relocate in the case of a The rule does not eliminate the construed as ‘‘endorsing’’ the non-governmental persecutor (8 CFR reasonableness analysis, as commenters regulations except to the extent that a 208.13(b)(3)(iii), 1208.13(b)(3)(iii)). alleged. First, the heading of each court finds the regulations to be a These burdens reflect the Departments’ regulatory section is ‘‘Reasonableness of reasonable interpretation of the statute. belief that aliens who claim past internal relocation.’’ 8 CFR 208.13(b)(3), See Chevron, 467 U.S. at 844 (‘‘[A] court persecution by non-state actors should 1208.13(b)(3) (asylum); 208.16(b)(3), may not substitute its own construction bear the burden to rebut the 1208.16(b)(3) (statutory withholding of of a statutory provision for a reasonable presumption that internal relocation is removal). The heading indicates the interpretation made by the reasonable. content of the section. What follows is administrator of an agency.’’). The different burdens of proof do not a list of factors and the requisite unfairly target or discriminate against Finally, the Departments disagree that burdens of proof to aid an adjudicator’s asylum seekers from Central American changing the burden of proof is assessment of the reasonableness of countries and Mexico, as commenters inappropriate. As explained in the internal relocation. For example, the alleged. The new burden of proof NPRM, the Departments believe the regulations state, in the case of a applies to all asylum seekers, regardless realigned burden of proof follows the governmental persecutor, ‘‘it shall be of the country of origin. The ‘‘baseline assessments of whether types presumed that internal relocation would Departments note that, contrary to the of persecution generally occur not be reasonable, unless the commenters’ allegations, the examples Department of Homeland Security nationwide, while recognizing that of private-actor persecutors provided by establishes by a preponderance of the exceptions, such as persecution by local the regulations exist in many countries, evidence that, under all the governments or nationwide not just Central American countries and circumstances, it would be reasonable organizations, might overcome these Mexico. See, e.g., Mashiri v. Ashcroft, for the applicant to relocate’’ and, in the presumptions.’’ 85 FR at 36282. 383 F.3d 1112, 1115–16 (9th Cir. 2004) case of a non-governmental persecutor, Contrary to the commenters’ assertion, (detailing facts in which a German ‘‘there shall be a presumption that when an adjudicator is determining citizen of Afghan descent was internal relocation would be reasonable reasonableness of internal relocation, an persecuted by non-state actors in unless the applicant establishes, by a applicant may not have already Germany, some of whom were part of a preponderance of the evidence, that it established past persecution or that the Neo-Nazi mob); Doe v. Att’y Gen. of the would be unreasonable to relocate.’’ 8 government was unable or unwilling to U.S., 956 F.3d 135, 139–40 (3d Cir. CFR 208.13(b)(3)(ii), (b)(3)(iii), protect the alien. For example, an 2020) (detailing facts in which a 1208.13(b)(3)(ii), (b)(3)(iii) (emphases applicant may be claiming a fear of Ghanaian citizen was persecuted by added). The reasonableness inquiry future persecution pursuant to 8 CFR family members and neighbors in continues to be an active prong of the 208.13(b)(2), 1208.13(b)(2). Although Ghana). internal relocation assessment. In showing past persecution raised a 4.7. Factors for Consideration in addition, under the new regulations, rebuttable presumption that internal Discretionary Determinations adjudicators must not disregard other relocation would be unreasonable under factors, as commenters alleged; rather, the prior regulation, the Departments Comment: Commenters generally the regulations instruct adjudicators to have concluded, upon fresh review, that expressed concern that the Departments consider ‘‘the totality of the relevant applying a blanket presumption did not provide a sufficient justification circumstances.’’ 8 CFR 208.13(b)(3), independent of the identity of the for the proposed changes and did not 1208.13(b)(3). Application of the persecutor is inconsistent with consider the practical consequence of previous regulations by courts and the assessments of how widespread the proposed rule. Commenters BIA are irrelevant and unpersuasive as persecution is likely to be based on the similarly expressed general concerns evidence that the rules cannot be identity of the alleged persecutor. that the proposed changes are in conflict changed. As previously explained, it is Whereas government or government- with section 208(a)(1) of the Act, 8 properly within the Departments’ sponsored actors would generally be U.S.C. 1158(a)(1), are contrary to case authority to revise their regulations. See, expected to have nationwide influence, precedent, are immoral, and would e.g., Encino Motorcars, LCC, 136 S. Ct. a private individual or organization negatively impact children seeking at 2125. would not ordinarily have such reach. asylum. The true purpose of the rule, The Departments maintain that the Placing the burden on the government some commenters asserted, is to lead to language in the previous regulations to show that the alien’s fear of future the denial of virtually all asylum was unhelpful. 85 FR at 36282. persecution is not well-founded where applications. Equivocal phrases in the prior he was previously persecuted by a non- Commenters expressed concern that regulation—that factors ‘‘may, or may governmental actor therefore inverts the the Departments seek to depart from the not, be relevant’’—are almost usual burden of proof—which lies with BIA’s approach in Matter of Pula, 19 paradigmatically unhelpful. The the applicant—without good reason. See I&N Dec. 467 (BIA 1987). One Departments believe the revised 85 FR at 36282 (explaining this commenter stated that it was regulations, including review under the rationale). inappropriate to use language from the

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case to justify the proposed new factors section 208(b)(1)(A) of the Act, 8 U.S.C. requirement for the granting of asylum while also superseding the case’s central 1158(b)(1)(A), Congress stated that the and should not be presumed or glossed holding. Commenters stated that Matter Attorney General ‘‘may’’ grant asylum. over solely because an applicant of Pula instructs that danger of The commenter asserted that if Congress otherwise meets the burden of proof for persecution should outweigh all but the intended the use of a heightened asylum eligibility under the INA’’ and most egregious factors. Commenters standard, it would have expressly done providing relevant discretionary factors similarly stated that Matter of Pula so, as it did in section 240A(b)(1)(D) of to consider in the exercise of such requires adjudicators to consider the the Act, 8 U.S.C. 1229b(b)(1)(D), for discretion), abrogated on other grounds, totality of the circumstances and to not non-LPR cancellation of removal. The Grace II, 965 F.3d at 897–900. give any particular factor such commenter cited the Supreme Court’s In its broadest sense, legal discretion significant weight that it would decision in Cardoza-Fonseca for is defined as the ‘‘exercise of judgment outweigh all the others. support. See 480 U.S. at 432 (‘‘[W]here by a judge or court based on what is fair Citing East Bay Sanctuary Covenant Congress includes particular language in under the circumstances and guided by v. Barr, 964 F.3d 832 (9th Cir. 2020), one one section of a statute but omits it in the rules and principles of law; a court’s commenter expressed concern that the another section of the same Act, it is power to act or not act when a litigant proposed rule conflicts with recent generally presumed that Congress acts is not entitled to demand the act as a Federal court precedent that the intentionally and purposely in the matter of right.’’ Discretion, Black’s Law creation of ‘‘eligibility bars’’ to asylum disparate inclusion or exclusion.’’). Dictionary (11th ed. 2019); see also is constrained by statute. The Accordingly, consistent with Matter of Discretion, Merriam-Webster (last commenter asserted that as some of the Marin, 16 I&N Dec. 581, 584–85 (BIA updated July 6, 2020), https:// discretionary factors would require 1978), the commenter asserted that the www.merriam-webster.com/dictionary/ denial of applications as a matter of totality of the circumstances approach discretion (defining ‘‘discretion’’ as the discretion, they are, in actuality, should be applied in the exercise of ‘‘power of free decision or latitude of unlawful eligibility bars. discretion for asylum applications. choice within certain legal bounds’’). Commenters stated that the proposed Commenters disagreed with the While the statute and case law are clear negative factors that adjudicators would Departments’ position that creating a list that a grant of asylum is subject to be required to consider are not related of proposed factors would save discretion, see INA 208(b)(1)(A), 8 to the merits of an asylum claim and are adjudicators time. Specifically, U.S.C. 1158(b)(1)(A); INS v. Stevic, 467 unavoidable in many cases. As a result, commenters noted that since a finding U.S. 407, 423 n.18 (1984), the statute commenters argued, adjudicators would of ‘‘extraordinary circumstances’’ or an and regulations are silent as to guidance be required to deny most asylum cases exceptional and extremely unusual that may direct such exercise of as a matter of discretion. One hardship would require a separate discretion. commenter asserted that the hearing, the proposed factors would not The BIA has explained that the Departments did not consider save time. exercise of discretion requires alternative policy options, and one Response: The Departments disagree consideration of the relevant factors in commenter stated that the rule should that they failed to provide sufficient the totality of the circumstances, based be amended to require adjudicators to justification for this proposed change in on the facts offered by the alien to consider positive factors in their the NPRM, evidenced by the three-page support the application in each case. discretionary determinations. discussion of this section alone. See 85 See Matter of Pula, 19 I&N Dec. at 473 Commenters argued that inappropriately FR at 36282–85. Nevertheless, the (noting that ‘‘a number of factors . . . cabining discretion in this way is in Departments provide further should be balanced in exercising conflict with making asylum explanation in this final rule. discretion’’). Further, the BIA has determinations on a case-by-case basis. Asylum is a discretionary benefit. INA provided factors that may be relevant to Commenters expressed concern that 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) the inquiry, including humanitarian the only way for applicants to overcome (providing that the Departments ‘‘may considerations, such as the alien’s age or the presence of nine of the proposed grant asylum to an alien who has health; any countries through which the adverse factors would be to show applied for asylum in accordance with alien passed en route to the United ‘‘extraordinary circumstances’’ or the requirements and procedures States and those countries’ available ‘‘exceptional and extremely unusual established by the Secretary of refugee procedures; personal ties to the hardship.’’ One commenter stated that a Homeland Security or the Attorney United States; and the alien’s use of demonstration of past persecution or a General under this section’’ (emphasis fraudulent documents. See id. at 473–74 well-founded fear of future persecution added)); see also Cardoza-Fonseca, 480 (‘‘Each of the factors . . . will not, of is ‘‘per se’’ exceptional and extremely U.S. at 443 (‘‘[A]n alien who satisfies course, be found in every case.... In unusual hardship. Therefore, the the applicable standard under § 208(a) the absence of any adverse factors, commenter argued that by meeting the does not have a right to remain in the however, asylum should be granted in legal standard for asylum, applicants United States; he or she is simply the exercise of discretion.’’). necessarily would meet the proposed eligible for asylum, if the Attorney In building upon the BIA’s guidance new standard of exceptional and General, in his discretion, chooses to and evaluating all policy options, the extremely unusual hardship. The grant it.’’ (emphases in original)). Departments have determined that it is commenter similarly stated that past Accordingly, ‘‘with respect to any form appropriate to codify discretionary persecution is ‘‘exceptional hardship.’’ of relief that is granted in the exercise factors for adjudicators to consider. 85 Another commenter stated that of discretion,’’ an alien must satisfy the FR at 36283. The statute and regulations application of the ‘‘exceptional and eligibility requirements for asylum and currently contain discretionary factors extremely unusual hardship’’ standard establish that the application ‘‘merits a for consideration in regard to other in exercising discretion for asylum favorable exercise of discretion.’’ INA forms of relief. See, e.g., 8 CFR 212.7(d), applications contravenes the INA 240(c)(4)(A),8 U.S.C. 1229a(c)(4)(A); see 1212.7(d) (authorizing the Attorney because Congress did not expressly also Matter of A–B–, 27 I&N Dec. at 345 General to consent to an application for provide for that heightened standard. n.12 (explaining that the ‘‘favorable visa, admission to the United States, or Instead, the commenter noted that in exercise of discretion is a discrete adjustment of status, for certain criminal

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aliens when declining to favorably ‘‘Agencies are free to change their determined that the approach described exercise discretion ‘‘would result in existing policies as long as they provide in the NPRM—providing criteria for an exceptional and extremely unusual a reasoned explanation for the change.’’ adjudicator’s consideration in the hardship’’); see also Matter of Y–L–, 23 Encino Motorcars, LLC, 136 S. Ct. at exercise of discretion, in addition to I&N Dec. 270, 276–77 (A.G. 2002) 2125 (citing Brand X, 545 U.S. at 981– consideration of whether extraordinary (providing various factors that may 82). The Court has further explained circumstances or exceptional and indicate extraordinary and compelling what a ‘‘reasoned explanation’’ should extremely unusual hardship exists—is circumstances that the Attorney General entail: Awareness in its decision making appropriate. Moreover, the Departments may consider to determine whether process that it is changing positions; disagree that consideration of certain aggravated felonies are demonstration that the new policy is extraordinary circumstances or ‘‘particularly serious crimes’’ under permissible under the implementing exceptional and extremely unusual section 241(b)(3)(B) of the INA for statute, and not just the APA; statement hardship conflicts with the Act. purposes of withholding of removal); and belief that the new policy is better; Congress authorized the Attorney Matter of Jean, 23 I&N Dec. 373, 383– and provision of ‘‘good reasons’’ for the General to make discretionary asylum 84 (A.G. 2002) (explaining that new policy. See Organized Village of determinations, INA 208(b)(1)(A), 8 discretionary relief requires a balancing Kake v. U.S. Dep’t of Agric., 795 F.3d U.S.C. 1158(b)(1)(A), and that authority of the equities, including, if any, 956, 966 (9th Cir. 2015) (en banc) permits him to deny asylum even if an extraordinary circumstances, the gravity (summarizing FCC v. Fox Television applicant can establish past or future of an alien’s underlying criminal Stations, Inc., 556 U.S. 502, 515–16 persecution. offense, or unusual hardships). The (2009)). In the NPRM, the Departments The Departments ‘‘believe that the Departments have similar authority to provided such information: awareness inclusion of the proposed factors in the promulgate discretionary factors for of changed position, 85 FR at 36285; rule will better ensure that immigration asylum relief. INA 208(b)(1)(A), 8 U.S.C. demonstration that the policy is judges and asylum officers properly 1158(b)(1)(A); see 85 FR at 36283. permissible under the INA and APA, see consider, in all cases, whether Contrary to commenters’ concerns generally 85 FR at 36282–85; statement applicants for asylum merit the relief as that the proposed rule effectively creates that the new policy is better, 85 FR at a matter of discretion, even if the bars (or ‘‘eligibility bars’’) to asylum and 36283; and good reasons for the new applicant has otherwise demonstrated inappropriately cabins adjudicators’ policy, 85 FR at 36283, 36285. eligibility for asylum.’’ 85 FR at 36283, discretion, the Departments reiterate Accordingly, the Departments properly 36285. In this way, the list of factors to that this rulemaking identifies various and permissibly changed their policy consider, including consideration of factors for consideration in making a from Matter of Pula. extraordinary circumstances or discretionary determination on an Significantly, the rule does not exceptional and extremely unusual asylum application. These factors are preclude consideration of positive hardship, would take place in one not bars; accordingly, concerns that the factors. Further, the NPRM instructed streamlined adjudication. Accordingly, rule would result in the denial of all adjudicators to ‘‘consider any other the Departments disagree with asylum claims are misguided. Rather, in relevant facts and circumstances to commenters that the list of factors regard to the three significantly adverse determine whether the applicant merits would not save time, is ‘‘unworkable’’ factors, the proposed rule clearly stated asylum as a matter of discretion.’’ 85 FR or ‘‘cumbersome,’’ or limits adjudicatory that ‘‘the adjudicator should also at 36283. Accordingly, the rule allows discretion. consider any other relevant facts and for consideration of positive equities as The Departments also disagree that circumstances to determine whether the part of an adjudicator’s discretionary this section of the rule is immoral or applicant merits asylum as a matter of analysis. The Departments have would negatively impact children discretion.’’ Id. (emphasis added). And determined that the factors provided in seeking asylum. Adjudicators consider in regard to the nine adverse factors, the the NPRM are appropriate and relevant these factors, as relevant, to all asylum proposed rule stated that ‘‘the to such analysis. cases. As it may relate specifically to adjudicator may nevertheless favorably Moreover, the rule does not children, if extraordinary circumstances exercise discretion in extraordinary ‘‘categorically limit’’ adjudicators’ exist or exceptional and extremely circumstances . . . or if the alien discretion or make certain outcomes unusual hardships would arise if the demonstrates, by clear and convincing ‘‘practically mandatory’’; rather, the rule application was denied, the adjudicator evidence, that the denial of asylum guides the exercise of discretion by should consider such circumstances. would result in exceptional and providing various factors for See Section II.C.1.3 of this preamble for extremely unusual hardship to the consideration. The NPRM clearly stated, further discussion on this point. alien.’’ Id. (emphasis added). Thus, a and the Departments reiterate, that the finding that any of the factors applies proposed factors were ‘‘nonexhaustive.’’ 4.7.1. Unlawful Entry or Unlawful does not foreclose consideration of other 85 FR at 36283. Further, the NPRM Attempted Entry Into the United States relevant facts and circumstances, which stated that ‘‘any other relevant facts and Comment: Commenters expressed a true asylum ‘‘bar’’ would require. circumstances’’ should be considered general concern that the proposed Commenters asserted that this rule is and provided exceptions to one of the regulation would improperly lead inconsistent with the BIA’s approach in significantly adverse factors. See id. adjudicators to deny ‘‘virtually all’’ Matter of Pula and subsequent related Accordingly, although the Departments applications for asylum seekers who case law in which past persecution or a proposed significantly adverse and enter the United States between ports of strong likelihood of future persecution adverse factors, an adjudicator must entry. One commenter stated that the ‘‘should generally outweigh all but the continue to consider positive factors in ‘‘immediate flight’’ exception is too most egregious of adverse factors.’’ 19 the discretionary analysis. narrow. I&N Dec. at 474. The Departments The Departments disagree with Commenters averred that the clearly stated in the NPRM that the rule commenters that past or future proposed regulation is contrary to ‘‘supersede[d]’’ the BIA’s approach in persecution should be considered ‘‘per section 208(a)(1) of the Act, 8 U.S.C. Matter of Pula, 85 FR at 36285, which se’’ exceptional and extremely unusual 1158(a)(1), which instructs that is squarely within their authority. hardship. Rather, the Departments have individuals are eligible to apply for

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asylum regardless of where they enter resources used to adjudicate the immense strain on resources needed to the United States. growing number of asylum cases. One process aliens who illegally enter the Commenters expressed concern that commenter asserted that ‘‘expediency’’ United States. 85 FR at 36283 (citing the proposed regulation is inconsistent is not an appropriate consideration in Aliens Subject to a Bar on Entry Under with case law. Commenters argued that determining the relief available to Certain Presidential Proclamations; contrary to the NPRM’s argument, asylum seekers. The commenter also Procedures for Protection Claims, 83 FR Matter of Pula, 19 I&N Dec. Dec. 467 noted that in Gulla v. Gonzales, 498 55934 (Nov. 9, 2018)). Aliens who (BIA 1987), does not support the F.3d 911, 919 n.2 (9th Cir. 2007), the unlawfully enter the United States Departments’ position that an unlawful Ninth Circuit Court of Appeals held that circumvent the requirement that all entry should be a significant adverse ‘‘hypothetical numbers’’ of potential applicants for admission be inspected, factor. Instead, one commenter asserted asylum seekers is not a basis to deny see INA 235(a)(3), 8 U.S.C. 1225(a)(3); that in Matter of Pula the BIA reversed relief to an applicant who has break U.S. law, see INA 212(a)(6)(A), 8 Matter of Salim, 18 I&N Dec. 311 (BIA demonstrated a valid claim. The U.S.C. 1182(a)(6)(A); INA 275(a)(1), 8 1982), to the extent that Matter of Salim commenter similarly argued that U.S.C. 1325(a)(1); and contribute to the suggested that ‘‘the most unusual limiting asylum to those who traveled ever-increasing strain on the showing of countervailing equities’’ was from contiguous countries and those government’s limited resources. Given needed to overcome a ‘‘circumvention who flew directly to the United States such limited resources, and subject to a of orderly procedures.’’ Citing, for is in conflict with case precedent and full discretionary analysis of all relevant example, Zuh v. Mukasey, 547 F.3d 504, obligations under the 1967 Refugee factors as described in the NPRM, the 511 n.4 (4th Cir. 2008), commenters Protocol. Departments have determined that similarly argued that Federal courts of Commenters expressed concern with failure to lawfully apply for admission, appeals have given the manner of an the impact of the proposed rule in light in other words, unlawful entry or asylum seeker’s entry into the United of the CBP’s practice of ‘‘metering.’’ attempted unlawful entry, should States very little weight (and sometimes Commenters asserted that, under the generally be considered a significant no weight) in discretionary practice, applicants are required to wait adverse factor in an asylum determinations and have noted that for months in ‘‘dangerous conditions’’ adjudication. place of entry reveals little about the in Mexico before they are able to apply The Departments disagree with merits of the case. And, citing Huang v. for asylum. Commenters stated that commenters’ allegations that DHS INS, 436 F.3d 89, 100 (2d Cir. 2006), one some applicants are motivated to enter procedures at the border have ‘‘virtually commenter noted that the Second the United States between ports of entry shut down the processing of asylum Circuit Court of Appeals reasoned that in order to avoid the dangerous applications’’ and prevented asylum if an illegal manner of entry were conditions. seekers from lawfully presenting afforded significant weight, then One commenter expressed concern themselves at the border. At various virtually no asylum applicant would that codifying unlawful entry as a times since 2016, CBP has engaged in prevail. significant adverse discretionary factor metering to regulate the flow of aliens Commenters expressed concern that would particularly burden children. The present at land ports of entry on the codification of unlawful entry as a commenter argued that children often southern border in order to ‘‘address significantly adverse factor in arrive with adults (such as parents, safety and health hazards that resulted discretionary determinations contradicts smugglers, or traffickers) who choose from overcrowding at ports of entry.’’ recent Federal court decisions from the the manner and place of entry. The See DHS, OIG 18–84, Special Review— Ninth Circuit Court of Appeals and the commenter argued further that children Initial Observations Regarding Family District Court for the District of who travel to the United States on their Separation Issues Under the Zero Columbia that struck down November own may not comprehend the Tolerance Policy 5–6 & n.11 (Sept. 27, 2018 regulations by the Departments. importance of arriving at a port of entry. 2018), https://www.oig.dhs.gov/sites/ Commenters argued that the NPRM is Response: The Departments disagree default/files/assets/2018-10/OIG-18-84- similar to a 2018 Interim Final Rule that this factor will result in the denial Sep18.pdf. Individuals who are subject (IFR) that, when coupled with a of ‘‘virtually all’’ asylum applications. to metering are not prevented from presidential proclamation issued the This factor is but one factor that an presenting at the port of entry.59 same day, made any individual who adjudicator must consider in light of all Claims that refugees who are unable arrived between designated ports of other relevant factors and to get a visa will have to overcome the entry ineligible for asylum. Commenters circumstances. 85 FR at 36283. significant negative discretionary factor noted that the Ninth Circuit Court of Likewise, the Departments disagree that are unfounded. The rule does not Appeals found that the 2018 IFR was the exception for aliens who enter or require any alien to obtain a visa in arbitrary and capricious and that it attempt entry ‘‘made in immediate order to apply for asylum. Under the infringed upon treaty commitments (E. flight,’’ 8 CFR 208.13(d)(1)(i), law, ‘‘[a]ny alien who is physically Bay Sanctuary Covenant v. Trump, 950 1208.13(d)(1)(i), is too narrow. The present in the United States or who F.3d 1242 (9th Cir. 2020)). Commenters Departments believe this exception arrives in the United States (whether or noted that the District Court for the properly balances the need for orderly not at a designated port of arrival and District of Columbia held that the bar processing of aliens with urgent including an alien who is brought to the was inconsistent with the INA and humanitarian considerations. United States after having been congressional intent (O.A. v. Trump, As described throughout this rule, interdicted in international or United 404 F. Supp. 3d 109, 147 (D.D.C. 2019)). asylum is a discretionary benefit. INA States waters) irrespective of such Commenters expressed concern that the 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). The alien’s status, may apply for asylum,’’ present rulemaking is intended to Departments have a legitimate interest circumvent the courts’ decisions on the in maintaining order and security on 59 The permissibility of this practice is the subject 2018 IFR. U.S. borders through the administration of ongoing litigation, and the Departments decline to further comment on the legality or propriety of Commenters disagreed with the of lawful admissions procedures and, as the practice in this rulemaking. See Al Otro Lado, NPRM’s reasoning that the proposed stated in the proposed rule, the Inc. v. McAleenan, No. 17–cv–02366–BAS–KSC, rule is necessary to address the strained Departments remain concerned by the 2020 WL 4015669 (S.D. Cal. July 16, 2020).

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INA 208(a)(1), 8 U.S.C. 1158(a)(1), and more of these factors applies to the ‘‘generally outweigh all but the most nothing in the rule changes that applicant’s case, the adjudicator would egregious adverse factors,’’ 19 I&N Dec. statutory framework. Moreover, nothing consider such factors to be significantly at 474, the Departments reiterate that in the rule changes the longstanding adverse for purposes of the the rule supersedes Matter of Pula in principle that the Secretary and the discretionary determination, though the that regard. See 85 FR at 36285. Given Attorney General may deny asylum as a adjudicator should also consider any that non-discretionary statutory matter of discretion, even to aliens who other relevant facts and circumstances withholding of removal and CAT otherwise meet the statutory definition to determine whether the applicant protection are available, the of a refugee. See INS v. Cardoza- merits asylum as a matter of Departments believe the rule’s revised Fonseca, 480 U.S. at 428 n.5, 444–45 discretion.’’); 8 CFR 208.13(d), (d)(2)(ii), approach that considers the enumerated (‘‘It is important to note that the 1208.13(d), (d)(2)(ii). Like Matter of discretionary factors under the totality Attorney General is not required to grant Pula, the rule would not treat this factor of the circumstances is appropriate in asylum to everyone who meets the as an absolute bar. See 8 CFR 1208.13(d) all cases, including those in which the definition of refugee. Instead, a finding (‘‘Factors that fall short of grounds of applicant has otherwise demonstrated that an alien is a refugee does no more mandatory denial of an asylum asylum eligibility. See id. than establish that ‘the alien may be application may constitute discretionary Commenters also contend that this granted asylum in the discretion of the considerations.’’). rule contradicts Federal precedents Attorney General.’. . . [Congress] chose Similarly, the Departments disagree striking down the Departments’ to authorize the Attorney General to with commenters’ assertions that this previous rule, Aliens Subject to a Bar on determine which, if any, eligible rule contravenes section 208(a)(1) of the Entry Under Certain Presidential refugees should be denied asylum.’’ Act, 8 U.S.C. 1158(a)(1). As explained, Proclamations; Procedures for (emphasis in original) (citation this rule does not bar individuals from Protection Claims, 83 FR 55934 (Nov. 9, omitted)). Rather, consistent with the applying for asylum. The rule merely 2018).62 Unlike the rule struck down in relevant authority, INA 208(b)(1)(A), 8 articulates that unlawful entry or those cases, however, consideration of U.S.C. 1158(b)(1)(A), the Secretary and attempted unlawful entry are significant unlawful entry or attempted unlawful Attorney General are simply providing adverse factors when considering entry as a significantly adverse factor in additional clarity and guidance to whether to grant asylum as a matter of a discretionary analysis is not an asylum adjudicators to aid their consideration discretion. bar. This factor is one of many factors of asylum claims as a matter of Commenters cited various Federal that an adjudicator must consider in the discretion. circuit court treatment that allegedly totality of the circumstances. See 8 CFR The Departments disagree with forecloses consideration of this factor as 208.13(d), 1208.13(d) (‘‘Factors that fall commenters’ assertion that Matter of significantly adverse. Cases cited by the short of grounds of mandatory denial of Pula, 19 I&N Dec. 467 (BIA 1987), is commenters, however, prohibit the use an asylum application may constitute ‘‘fundamentally incompatible’’ with this of this factor as a bar to asylum,60 and discretionary considerations.’’). rule. As a threshold matter, the the Departments reiterate that the Further, commenters alleged that the Departments reiterate that the rule articulated discretionary factors do not Departments ‘‘appear to seek a way incorporates as a discretionary factor equate to asylum bars. Commenters also around the courts’ decisions’’ by consideration of whether an alien selectively quoted from cases for ‘‘injecting’’ the previous rule barring unlawfully entered or attempted to support, thus mischaracterizing several asylum into the NPRM as a unlawfully enter the United States. 85 cases as foreclosing provisions of the discretionary analysis and that the FR at 36283. Matter of Pula similarly NPRM.61 Insofar as commenters cited to NPRM failed to ‘‘address how the allows for consideration of this factor as Matter of Pula’s approach that considers purpose of INA 208(a) is effectuated by part of the discretionary analysis: persecution or strong likelihood of inclusion of unlawful entry as a future persecution as factors that significant adverse discretionary factor.’’ Yet while we find that an alien’s manner The Departments reject the contention of entry or attempted entry is a proper and 60 relevant discretionary factor to consider in Commenters cited Gulla, 498 F.3d at 917, that the rule is merely ‘‘injecting’’ one which states that ‘‘it would be anomalous for an adjudicating asylum applications, we agree rule into another. The rule struck down asylum seeker’s means of entry to render him in East Bay Sanctuary Covenant and with the applicant that Matter of Salim, ineligible for a favorable exercise of discretion,’’ id. supra, places too much emphasis on the (emphasis added), and Huang, 436 F.3d at 100, O.A. established a bar to asylum circumvention of orderly refugee procedures. which contemplates whether ‘‘illegal manner of eligibility, and the courts in those cases This circumvention can be a serious adverse flight and entry were enough independently to held that the rule exceeded the Attorney factor, but it should not be considered in support a denial of asylum,’’ id. (emphasis added). General’s authority under INA The Departments understand those cases to state such a way that the practical effect is to deny 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), to relief in virtually all cases. This factor is only that manner of entry cannot, on its own, bar an applicant from asylum relief. Further, the establish additional limitations on one of a number of factors which should be Departments note that in regards to manner of balanced in exercising discretion, and the asylum eligibility. But both courts have entry, Gulla found that the petitioner did not acknowledged that the Attorney General weight accorded to this factor may vary unlawfully enter or attempt to enter the United depending on the facts of a particular case. States, 498 F.3d at 919; thus, that case is not has broader authority to deny asylum as particularly relevant for purposes of the factor at a matter of discretion to otherwise 19 I&N Dec. at 473 (emphases added). issue in 8 CFR 208.13(d)(1)(i), 1208.13(d)(1)(i). eligible applicants under INA The rule is consistent with Matter of 61 For example, commenters stated that Federal 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). See Pula inasmuch as that factor must not be circuit courts have given ‘‘manner of entry’’ ‘‘little to no weight’’ in discretionary determinations. E. Bay Sanctuary Covenant v. Barr, 964 considered in a way that practically F.3d 832, 849 (9th Cir. 2020) (explaining denies relief in all cases. The rule Commenters quoted from Zuh v. Mukasey, 547 F.3d 504 (4th Cir. 2008). In context, however, the court in the context of a different eligibility clearly states that the factor is one of first referenced Matter of Pula’s totality of the bar that ‘‘the Attorney General’s many discretionary factors for an circumstances analysis and then stated that the discretion to deny asylum under adjudicator to consider, consistent with ‘‘use of fraudulent documents to escape imminent capture or further persecution’’ should be afforded Matter of Pula’s holding that the totality ‘‘little to no weight.’’ Id. at 511 n.4 (emphasis 62 Commenters cited E. Bay Sanctuary Covenant of the circumstances should be added). Zuh does not stand for the proposition that v. Trump, 950 F.3d 1242 (9th Cir. 2020), and O.A. examined. 85 FR at 36283 (‘‘If one or this factor should never be afforded greater weight. v. Trump, 404 F. Supp. 3d 109, 147 (D.D.C. 2019).

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§ 1158(b)(1)(A)’’ is broader than ‘‘his factors in the rule will better ensure that circumstances, to determine whether an discretion to prescribe criteria for immigration judges and asylum officers applicant warrants a favorable exercise eligibility for asylum’’ under properly consider, in all cases, whether of discretion. § 1158(b)(2)(C)); O.A., 404 F. Supp. 3d at applicants for asylum merit the relief as The Departments disagree with 151 (‘‘[T]here is a vast difference a matter of discretion, even if the commenters’ assertions that the rule, in between considering how the alien applicant has otherwise demonstrated practice, will deny relief to ‘‘virtually all entered the United States as one, among eligibility for asylum.’’ 85 FR at 36283. asylum cases’’ or that the rule will limit many, factors in the exercise of a Adjudicators exercise independent asylum relief to applicants from discretionary authority, and a judgment in each case before them, 8 contiguous nations or applicants who categorical rule that disqualifies any CFR 1003.10(b), and this rule facilitates arrive by air. The Departments reiterate alien who enters across the southern efficient adjudication of asylum the independent judgment exercised by border outside a designated port of applications, consistent with such adjudicators in applying immigration entry.’’). Consistent with those exercise of independent judgment. law, and this rulemaking does not decisions, this rule simply clarifies that Contrary to the suggestions of dictate particular outcomes. unlawful entry or attempted unlawful commenters, the rule does not codify Adjudicators examine the unique factors entry is a significant adverse factor in a expediency as the sole—or even one— in each case before them, in accordance discretionary analysis. Further, the factor to consider in determining with applicable law and regulations. Departments point to their explanation asylum relief. Accordingly, the Departments find these at 85 FR at 36283: Commenters unpersuasively contend assertions to be purely speculative. that the rule directly conflicts with the Secretary and Attorney General have not Federal circuit case law. The The Departments also disagree that provided general guidance in agency the rule particularly burdens children. regulations for factors to be considered when commenters confuse the requirements for a grant of asylum by misconstruing As discussed elsewhere in this final determining whether an alien merits asylum rule, adjudicators may consider whether as a matter of discretion. Nevertheless, the a finding of eligibility as sufficient to Departments have issued regulations on grant asylum. Asylum eligibility is extraordinary circumstances exist or discretionary considerations for other forms separate from the necessary whether exceptional and extremely of relief, e.g., 8 CFR 212.7(d), 1212.7(d) discretionary analysis, as reflected in unusual hardships would arise if the (discretionary decisions to consent to visa the statute: ‘‘with respect to any form of application was denied. In the case of a applications, admission to the United States, relief that is granted in the exercise of child’s unlawful entry or attempted or adjustment of status, for certain criminal discretion,’’ an alien must establish unlawful entry, an adjudicator could aliens), and the Departments believe it is satisfaction of the eligibility consider an alien’s juvenile status and similarly appropriate to establish criteria for other related factors stemming from the considering discretionary asylum claims. requirements for asylum and that the alien ‘‘merits a favorable exercise of alien’s age, as relevant to and presented The Departments acknowledge that discretion.’’ INA 240(c)(4)(A), 8 U.S.C. in the case. See Section II.C.1.3 of this while that explanation does not 1229a(c)(4)(A); see also Cardoza- preamble for further discussion on this specifically reference section Fonseca, 480 U.S. at 428 n.5 (explaining point. Nevertheless, the Departments 208(b)(1)(A) of the Act, 8 U.S.C. that ‘‘a finding that an alien is a refugee recognize that aliens under the age of 18 1158(b)(1)(A), the explanation clearly does no more than establish that ‘the often have no say in determining their states that the purpose of this section of alien may be granted asylum in the manner of entry into the United States. the rule is to establish criteria to guide discretion of the Attorney General’ ’’ Accordingly, the Departments have the exercise of discretion required in (quoting INA 208(a)) (emphases in modified the language in the final rule considering asylum claims. As original)); Matter of A–B–, 27 I&N Dec. to reflect that the unlawful entry of an explained in the NPRM and this final at 345 n.12, (stating that the ‘‘favorable alien under age 18 would not rule, asylum is a discretionary form of exercise of discretion is a discrete necessarily be a significant adverse relief under section 208(b)(1)(A) of the requirement’’ in granting asylum and discretionary factor.63 Act, 8 U.S.C. 1158(b)(1)(A). should not be disregarded ‘‘solely 4.7.2. Failure of an Alien To Apply for Accordingly, this rule enables efficient because an applicant otherwise meets and proper exercise of the discretion Protection From Persecution or Torture the burden of proof for asylum in at Least One Country Outside the required by section 208(b)(1)(A) of the eligibility under the INA’’), abrogated Alien’s Country of Citizenship, Act, 8 U.S.C. 1158(b)(1)(A). on other grounds, Grace II, 965 F.3d at Nationality, or Last Lawful Habitual Although the Departments agree with 897–900. The rule does not predicate Residence Through Which the Alien commenters that expediency is not the asylum eligibility on unlawful entry or Transited Before Entering the United only relevant ‘‘consideration when attempted unlawful entry. Instead, the States making a determination that would rule makes such factor a consideration dictate the relief available to an asylum in the discretionary analysis. Comment: Commenters expressed seeker,’’ it is also true that ‘‘the public In response to commenters’ other general opposition to the proposed has an interest in relieving burdens on quoted excerpts from case law, the rule’s requirement that adjudicators the asylum system and the efficient Departments considered that responding consider failure to apply for asylum in conduct of foreign affairs.’’ See E. Bay to unlawful entry or attempted unlawful third countries through which Sanctuary Covenant, 964 F.3d at 855. entry require expenditure of valuable applicants traveled to reach the United By disfavoring (though, not barring) government resources. 85 FR at 36283. States to be a significant adverse factor. asylum applicants who unlawfully enter Not all aliens who unlawfully enter or Commenters argued that placing great the United States and by deterring attempt to unlawfully enter intend to negative weight on the applicant’s route meritless asylum claims, the apply for asylum, and apprehension and to the United States is inconsistent with Departments seek to ensure that those processing of these aliens continues to discretionary determinations, which, who need relief most urgently are better strain resources. Accordingly, the able to obtain it. As stated in the Departments codify this factor as part of 63 Such entry would remain a significant adverse proposed rule, the Departments ‘‘believe the discretionary analysis, to be discretionary factor for any adults traveling with the that the inclusion of the proposed considered in the totality of the minor, however.

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commenters argued, should be based on Constitution. Commenters asserted that trigger the rule . . . that racial a consideration of all the equities. the exceptions outlined in the proposed classifications are to be subjected to the Commenters asserted that, contrary to regulation are identical to language in strictest scrutiny and are justifiable only the NPRM’s reasoning, failure to apply the Departments’ July 16, 2019, IFR. In by the weightiest of considerations.’’ for asylum protection in a third country considering the legality of the IFR, (citation omitted)). This factor was not is often not evidence of misuse of the commenters stated that the Ninth motivated by discriminatory intent. The asylum system. Commenters asserted Circuit Court of Appeals found the rule rule and this factor in particular apply that there are numerous reasons that to be arbitrary and capricious and equally to all asylum applicants. To the applicants would not apply for asylum inconsistent with the INA. extent that any one group is in such countries, including lack of One commenter asserted that the disproportionately affected by the rule, knowledge on how to apply and proposed provision conflicts with two such outcome was not based on language barriers. Additionally, statutory provisions concerning when discriminatory intent, but rather on the commenters cited violence and a fear of asylum seekers must apply for asylum demographics of the affected population persecution as a reason that applicants in another country: Sections and the Departments’ aim to ensure that may not apply for asylum in third 208(a)(2)(A) and 208(b)(2)(A)(vi) of the asylum protection in the United States countries. One commenter noted that Act, 8 U.S.C. 1158(a)(2)(A), (b)(2)(A)(vi). is available and timely granted to the U.S. government has issued travel Specifically, the commenter asserted applicants who genuinely need it most. advisories urging Americans to that the proposed provision is not See generally 85 FR at 36283; see also reconsider travel plans to El Salvador, consistent with these statutory sections Regents of Univ. of Cal., 140 S. Ct. at Honduras, Guatemala, and eleven because it would exclude large classes 1915–16 (rejecting the claim that Mexican states because of violence. of individuals from asylum, it does not revoking an immigration policy that Furthermore, the commenter noted that require adjudicators to consider the primarily benefitted Latinos supported the U.S. government urges travelers to safety of the third countries, and it does an inference of invidious discrimination ‘‘exercise caution’’ when travelling to not require adjudicators to consider the against Latinos, because any disparate sixteen other Mexican states, and that fairness of third country asylum impact could be explained by the the United States has issued its highest procedures. demographic fact that ‘‘Latinos make up travel warning—‘‘Do Not Travel’’—for Response: This factor was a large share of the unauthorized alien the remaining five Mexican states. The promulgated as a way to ensure that population’’). The Departments have commenter asserted that these warnings aliens in need of protection apply at the determined that aliens who do not indicate that the conditions in some first available opportunity. As stated in apply for protection in a country Mexican states are as dangerous as those the proposed rule, the Departments through which they transit are less in Syria and Iraq, which also have the believe that there is a higher likelihood likely to merit relief as a matter of that aliens who fail to apply for highest travel warning. Given these discretion; thus, the Departments protection in a country through which various warnings, the commenter proposed such factor to be considered they transit en route to the United States asserted, it is not reasonable to expect while also providing the opportunity for are misusing the asylum system. 85 FR individuals to apply for asylum in aliens to present evidence to the at 36283; see also Asylum Eligibility Mexico. contrary. See id. Commenters asserted that the NPRM’s and Procedural Modifications, 84 FR reasoning failed to adequately consider 33829, 33831 (July 16, 2019). Because Moreover, this factor is not arbitrary. the realities of the asylum systems in the Departments recognize that this may The rule requires adjudicators to Mexico, Guatemala, Honduras, and El not always be the case, the rule provides consider, as part of their discretionary Salvador. In the case of Mexico, the exceptions for situations in which an analysis, whether an alien transited commenter argued that the asylum alien was denied protection in the through a country en route to the United system there is restrictive, underfunded, country at issue, the alien was a victim States but did not apply for asylum and underdeveloped. Commenters of a severe form of trafficking in there. If an alien did not apply for similarly asserted that the asylum persons, or the relevant country was not protection, regardless of whether transit systems in Guatemala, Honduras, and El a party to certain humanitarian was effectuated by foot, flight layover, Salvador are rudimentary. conventions, as provided in 8 CFR or sea, the alien forwent the immediate Commenters argued that the 208.13(d)(1)(ii), 1208.13(d)(1)(ii). In opportunity to apply for protection in requirement to apply for asylum in a addition, the adjudicator may consider the transited country for the future third country en route to the United whether exceptional circumstances exist opportunity to apply for protection in States inappropriately advantaged or whether denial of asylum would the United States. The Departments asylum seekers coming from contiguous result in exceptional and extremely believe this choice is relevant to an countries, as well as those who have the unusual hardship to the alien. 85 FR at adjudicator’s discretionary analysis means to fly non-stop to the United 36285. because it may indicate the urgency or States. With respect to asylum seekers Further, because this factor is race- legitimacy of an applicant’s claim. Thus, who reached the United States by air neutral on its face and applies equally adjudicators should consider, as travel, commenters asserted that the to all aliens, it does not violate the Fifth relevant, whether an alien failed to NPRM lacked a rationale as to why Amendment’s due process guarantee. apply for protection in a country asylum seekers who had even a brief See Washington v. Davis, 426 U.S. 229, through which the alien transited en layover in another country would be 242 (1976) (‘‘[W]e have not held that a route to the United States, in the totality required to apply for asylum in that law, neutral on its face and serving ends of the circumstances, to determine country. Commenters noted that such a otherwise within the power of whether the alien merits relief as a requirement is particularly harmful for government to pursue, is invalid under matter of discretion. Moreover, nothing those coming from countries where the Equal Protection Clause simply in the rule categorically prohibits an direct flights to the United States are not because it may affect a greater adjudicator from concluding that, under possible. Commenters asserted that this proportion of one race than of the circumstances, an applicant’s brief difference in treatment violated the another.... Standing alone, layover in transit is less probative of the Fifth Amendment of the United States [disproportionate impact] does not urgency of the applicant’s claim than a

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longer stay. Nor does anything in the countries, including lack of knowledge offer better options for certain refugees rule categorically prohibit an on how to apply and language barriers, who cannot find international adjudicator from concluding that, under as well as violence and a fear of protection in the U.S.,’’ including for the circumstances, an applicant’s persecution, as unpersuasive. As an those ‘‘who are deciding where to seek layover in transit in a country known for initial point, aliens who apply for asylum [i.e., between Mexico and the human rights abuses is less probative of asylum in the United States do so United States].’’ Asylum Access, the urgency of the applicant’s claim despite the possibility of language Mexican Asylum System for U.S. than a layover in a country with a well- barriers and lack of knowledge of Immigration Lawyers FAQ 1, 7 (Nov. recognized system for providing application procedures, and 2019), https://asylumaccess.org/wp- humanitarian protection. In any event, commenters did not explain—and the content/uploads/2019/11/Mexican- promulgating this factor in the rule Departments cannot ascertain—why Asylum-FAQ-for-US-Immigration- ensures that adjudicators at least these barriers would affect only other Lawyers.pdf. If aliens coming to the account for it in the exercise of countries, but not the United States. United States through Mexico feared discretion, even though its probative Additionally, the alleged failure to living in Mexico, it would be irrational value may vary from case to case. apply in other countries due to violence for them to seek refuge there in large The Departments also disagree with or a fear of persecution is based numbers; yet, that is precisely what the commenters who claim the Departments principally on anecdotes and available data suggests. ‘‘merely refer[ ] back to its earlier speculation and is neither borne out by Additionally, commenters do not rulemaking on the third country transit evidence nor distinguished from similar indicate why violence in part of one bar.’’ The NPRM’s citation to Asylum conditions in the United States. For country is different from violence Eligibility and Procedural example, the UNHCR has documented a existing in a part of the United States. Modifications, 84 FR 33829, 33831 (July notable increase in asylum and refugee Just as violence may occur in parts of 16, 2019), was meant to clearly reiterate, claims filed in Mexico—even during the the United States but individuals fleeing while avoiding redundancy, the ongoing COVID–19 pandemic—which persecution consider the country ‘‘safe’’ Departments’ continued belief that, strongly suggests that Mexico is an and want to live here, localized generally, aliens who do not apply for appropriate option for seeking refuge for episodes of violence in other countries protection in a country through which those genuinely fleeing persecution. do not mean the country, as a whole, is they transit en route to the United States See, e.g., Summary of Statement by unsafe for individuals fleeing are more likely to have a non- UNHCR Spokesperson Shabia Mantoo, meritorious asylum claim. As evidenced Despite Pandemic Restrictions, People persecution. In other words, the by the clause in the NPRM that states, Fleeing Violence and Persecution presence of local or regional violence, ‘‘as previously explained,’’ the Continue to Seek Asylum in Mexico, particularly criminal violence, exists in Departments explained this factor UNHCR (Apr. 28, 2020), https:// all countries, even those generally earlier in the proposed rule. 85 FR at www.unhcr.org/en-us/news/briefing/ considered ‘‘safe,’’ but such presence of 36282–83. The Departments provided 2020/4/5ea7dc144/despite-pandemic- local or regional violence does not extensive explanation of the BIA’s restrictions-people-fleeing-violence- render those countries too dangerous decision in Matter of Pula in which the persecution-continue.html (‘‘While a that individuals fleeing persecution BIA held that ‘‘whether the alien passed number of countries throughout Latin could not take refuge anywhere in the through any other countries or arrived America and the rest of the world have country. Cf. Cece, 733 F.3d at 679 in the United States directly from his closed their borders and restricted (Easterbrook, dissenting) (‘‘Crime may country’’ was a factor to consider in movement to contain the spread of be rampant in Albania, but it is common determining whether a favorable coronavirus, Mexico has continued to in the United States too. People are exercise of discretion is warranted. 19 register new asylum claims from people forced into prostitution in Chicago.... I&N Dec. at 473–74. The Departments fleeing brutal violence and persecution, Must Canada grant asylum to young chose to codify that factor in the helping them find safety.’’). Asylum and women who fear prostitution in the regulations. The Departments disagree refugee claims filed in Mexico increased United States, or who dread the risk of with commenters who alleged that this 33 percent in the first three months of violence in or near public-housing factor ‘‘ignores’’ the fact that countries 2020 compared to the same period in projects?’’). For instance, per the United through which an alien may transit may 2019, with nearly 17,800 claims in 2020. Nations Office on Drugs and Crime be as dangerous as the country of origin Id. Asylum claims filed in Mexico rose Chart on Victim of Intentional and is based on an incorrect premise by more than 103 percent in 2018 Homicide, the murder rate in Mexico of that there is a ‘‘real opportunity’’ to seek compared to the previous year. UNHCR, 29.1/100,000 in 2018, see United asylum in all countries party to the Mexico Fact Sheet (Apr. 2019), https:// Nations Office on Drugs and Crime, Convention. By becoming party to those reporting.unhcr.org/sites/default/files/ Mexico, Victims of Intentional treaties, the third countries through UNHCR%20Factsheet%20Mexico%20- Homicide, 1990–2018, https:// which an alien may have travelled are %20April%202019.pdf. Overall, dataunodc.un.org/content/data/ obligated, based on the treaties they ‘‘[a]sylum requests have doubled in homicide/homicide-rate, was lower than have joined, to provide protection from Mexico each year since 2015.’’ Clare that in American cities such as St. removal to individuals who are likely to Ribando Seelke, Cong. Rsch. Serv., Louis, Baltimore, Detroit, New Orleans face persecution on account of a IF10215, Mexico’s Immigration Control and Baton Rouge. See, e.g., Missouri, protected ground or torture. Efforts 2 (2020), https://fas.org/sgp/crs/ FBI: UCR (2018); Maryland, FBI: UCR Accordingly, the Departments row/IF10215.pdf. (2018); Michigan, FBI: UCR (2018); understand this factor to be consistent Moreover, some private organizations Louisiana, FBI: UCR (2018), https:// with the provisions of section 208 of the acknowledge that asylum claims in ucr.fbi.gov/crime-in-the-u.s/2018/crime- Act, 8 U.S.C. 1158. Mexico have recently ‘‘skyrocket[ed],’’ in-the-u.s.-2018/topic-pages/offenses- For similar reasons, the Departments that ‘‘Mexico has adopted a broader known-to-law-enforcement (Table 8). find commenters’ assertion that there refugee definition than the U.S. and The murder rate in Baltimore, America’s are numerous reasons that applicants grants a higher percentage of asylum deadliest big city, is twice that of would not apply for asylum in such applications,’’ and that ‘‘Mexico may Mexico. Sean Kennedy, ‘The Wire’ is

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Finished, but Baltimore Still Bleeds, considerations—the safety of a third would be excused. Finally, one Wall St. J. (Feb. 7, 2020), https:// country and availability of asylum commenter argued that the proposed www.wsj.com/articles/the-wire-is- procedures in that third country—into provisions are ultra vires because ‘‘the finished-but-baltimore-still-bleeds- this factor, the Departments reiterate law at INA 208 and 209 provide for 11581119104. In short, although the that an adjudicator may consider, as specific waivers of the use of Departments acknowledge commenters’ relevant, extraordinary circumstances [fraudulent documents].’’ concerns, they are supported by little and exceptional or extremely unusual Commenters argued that the NPRM’s evidence, do not explain why their hardship that may result if asylum is assertion that the use of fraudulent concerns do not also apply to the United denied. See 85 FR at 36285. documents makes enforcement of States, and are ultimately outweighed Regardless, the Attorney General’s immigration laws difficult and requires by the overall need to ensure discretion to deny asylum to otherwise significant resources is not supported by appropriate and consistent eligible applicants is not limited by the evidence and is false. One commenter consideration of probative discretionary safe third country or firm resettlement noted that under section 208(d)(5)(A)(i) factors that the rule provides. bars. East Bay Sanctuary and O.A. both of the Act (8 U.S.C. 1158(d)(5)(A)(i)) an Furthermore, this factor does not presented the question whether the individual cannot be granted asylum conflict with sections 208(a)(2)(A) and eligibility bar there conflicted with the until he or she has completed a 208(b)(2)(A)(vi) of the Act, 8 U.S.C. statute’s other eligibility bars, because background check and his or her 1158(a)(2)(A), (b)(2)(A)(vi), as one the Attorney General’s authority to ‘‘by identity ‘‘has been checked against all commenter alleged. Those provisions regulation establish additional appropriate records or databases.’’ The pose bars to asylum eligibility, but this limitations and conditions . . . under commenter noted that the statute’s factor merely guides adjudicators’ which an alien shall be ineligible for requirements are applicable to every discretion to grant or deny asylum to asylum’’ must be ‘‘consistent with this person seeking asylum regardless of otherwise eligible applicants. Generally, section.’’ INA 208(b)(2)(C), 8 U.S.C. whether fraudulent documents were the safe third country provision, INA 1108(b)(2)(C). Here, by contrast, the used. Thus, the commenter argued, 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A), bars Attorney General would be acting under making the use of fraudulent documents an alien from applying for asylum if the his authority under INA 208(b)(1)(A), a significant adverse factor would not Attorney General determines that the which includes no similar ‘‘consistent reduce the amount of resources needed alien could be removed to a country in with’’ requirement. Simply, the to adjudicate asylum cases. which the alien’s life or freedom would Secretary of Homeland Security or the One commenter argued that the not be threatened and where the alien Attorney General ‘‘may’’ deny asylum in proposed fraudulent document has access to a process for determining their discretion. Id.; see E. Bay provisions are contrary to congressional asylum claims or equivalent protection. Sanctuary Covenant, 964 F.3d at 849 intent. Specifically, the commenter The firm resettlement provision, INA (‘‘Unlike the broad discretion to deny noted that on May 1, 1996, the Senate 208(b)(2)(A)(vi), 8 U.S.C. asylum to aliens who are eligible for debated an immigration bill that would 1158(b)(2)(a)(vi), bars asylum eligibility asylum, the discretion to prescribe have summarily deported, among for an alien who firmly resettled in criteria for eligibility is constrained by others, asylum seekers who used false another country before arriving in the § 1158(b)(2)(C), which allows the documents to enter the United States. United States. Attorney General to ‘establish additional The commenter noted that Senator In contrast to those two provisions, limitations and conditions . . . under Patrick Leahy introduced an this factor—regarding whether an alien which an alien shall be ineligible for amendment to the bill that would failed to apply for protection from asylum’ only so long as those remove the use of ‘‘summary exclusion persecution or torture in at least one limitations and conditions are procedures for asylum applicants.’’ The country outside the alien’s country of ‘consistent with’ § 1158.’’). commenter quoted some of Senator citizenship, nationality, or last lawful Leahy’s remarks in support of the habitual residence through which the 4.7.3. Use of Fraudulent Documents To amendment, in which he noted that alien transited before entering the Enter the United States people fleeing persecution will probably United States—is considered by an Comment: Commenters expressed get fraudulent passports. The adjudicator in making a discretionary several general concerns regarding the commenter noted there was bipartisan determination on the alien’s asylum regulatory provisions on fraudulent support of the amendment. application. Whether an application documents. First, commenters argued Commenters asserted that Federal warrants a favorable exercise of that the provisions would result in the courts have recognized that false discretion is distinct from whether an denial of most asylum applications. documents may be needed to flee alien is barred altogether from applying Second, commenters argued that it is persecution. Citing Gulla v. Gonzales, for asylum, as is the case with the safe sometimes impossible for asylum 498 F.3d 911 (9th Cir. 2007), one third country provision, or from seekers to obtain valid documents and commenter noted that Mr. Gulla, an establishing eligibility for asylum, as is that in some instances pursuing such Iraqi asylum seeker, used forged the case with the firm resettlement documents could put them in greater passports to flee government provision. To the extent that the danger. Third, commenters asserted that persecution on account of his religion commenter’s concerns about the safety it is particularly difficult for women to and that the court concluded that of a third country and availability of obtain valid travel documents in some reasoned use of false documentation in asylum procedures in that third country countries because they need to first that case supported Mr. Gulla’s asylum specifically refer to the safe third obtain the approval of a male relative. claim rather than detracted from it. country provision in section Fourth, commenters asserted that the One commenter argued that the 208(a)(2)(A) of the Act, 8 U.S.C. NPRM lacked a valid rationale as to why NPRM’s rationale for the fraudulent 1158(a)(2)(A), those are irrelevant to this those travelling through multiple document provisions distorted the BIA’s distinct factor considered in countries would be punished under the reasoning in Matter of Pula. discretionary determinations. To the proposed rule and those who came Specifically, the commenter argued that extent that the commenter suggests directly to the United States from a even though the BIA delineated a specifically incorporating those contiguous country or a direct flight difference between the use of fraudulent

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documents to escape persecution and and the commenters did not exit control for the contiguous country falsifying a United States passport to persuasively explain why that should is located in close physical proximity to assume the identity of a United States not be the case. the port of entry into the United States citizen, the BIA noted that an Even if entry documents were a or the embarkation point for a trip by air adjudicator would still be required to prerequisite to the ability to apply for or sea to the United States; thus the consider the totality of the asylum, the Departments nevertheless Departments will not consider this a circumstances in both cases. would find that this factor would deter significant adverse factor for such Accordingly, the commenter argued that the use of false documents, which create aliens. As further explained in the the case does not provide justification burdensome administrative costs in NPRM, the rule aligns with Lin v. for making the use of a fraudulent filtering valid from invalid Gonzales, 445 F.3d 127, 133 (2d Cir. document a significantly adverse factor. documentation and dissipate human 2006), and Matter of Pula, 19 I&N Dec. Response: As an initial point, resources that could be used to ensure at 474, cases that draw a distinction commenters failed to explain why an that meritorious claims are addressed between presentation of a fraudulent alien genuinely seeking asylum would efficiently. Those benefits, in the document to an immigration court and need to use false documents to enter the Departments’ view, would also the use of a fraudulent document to United States in the first instance, as ultimately outweigh any costs escape immediate danger. 85 FR at distinguished from using false associated with the denial of asylum 36283 n.35. To the extent other BIA documents only to leave the alien’s applications due to the use of such cases reject such a distinction, the rule documents. country of nationality. An alien need supersedes conflicting case law. Further, the Departments disagree that not necessarily have entered the United Accordingly, aliens are not ‘‘punished,’’ this factor would result in denial of States to apply for asylum; rather, an as commenters alleged, if they travel most applications. Regardless of what through more than one country. Rather, alien ‘‘arriv[ing] in the United States’’ documents aliens may use to depart may apply for asylum. INA 208(a)(1), 8 the line drawn in Lin and Pula supports their countries of nationality, there is no differential treatment. If an alien arrives U.S.C. 1158(a)(1). Thus, an alien may evidence that most asylum applicants seek asylum at a port of entry without directly (such as by air), there is an use false documents to enter the United innocuous explanation for his carrying using or attempting to use any States; rather, most aliens seeking documents whatsoever. Moreover, large of fraudulent documents: He still has asylum either appear at a port of entry them because he used them to escape numbers of aliens enter the United and request asylum without seeking to States without presenting any immediate danger. But if an alien travels enter with any particular documents or through more than one such country, documents at all, including those who enter the United States without subsequently seek asylum after turning that justification for carrying fraudulent inspection, i.e., without presenting any documents—escaping persecution— themselves in or are otherwise documents at all. becomes far more attenuated. As apprehended by DHS. See INA Commenters’ concerns are also explained elsewhere in the NPRM and 212(a)(6)(A), 8 U.S.C. 1182(a)(6)(A) speculative, and the Departments (rendering inadmissible an alien who reiterate that this factor is one of many this final rule, the Departments believe enters the United States without being factors considered under the that if aliens who travel through more admitted or paroled); see also Perla adjudicator’s discretionary analysis— than one country, subject to some Trevizo, How Do You ‘Secure’ the not a bar to asylum. exceptions, are escaping persecution, Border When Most Migrants Are Just 85 FR at 36283 (‘‘[T]he adjudicator they have an opportunity to seek Turning Themselves In?, Tuscon.com should also consider any other relevant protection in any of the countries (Dec. 15, 2018), https://tucson.com/ facts and circumstances to determine through which they transit en route to news/state-and-regional/how-do-you- whether the applicant merits asylum as the United States. If aliens arriving from secure-the-border-when-most-migrants- a matter of discretion.’’). Further, an a contiguous country are escaping are-just-turning-themselves-in/article_ alien may introduce relevant evidence persecution, the first place to seek deed8d48-fa50-11e8-837c- of extraordinary circumstances, protection would be the United States, 0b4b3be5a42a.html (noting that ‘‘large including challenges described by the and so the Departments will not groups’’ of aliens simply ‘‘cross illegally commenters, for the adjudicator to consider such aliens’ use of fraudulent to turn themselves in,’’ with no mention consider. See 85 FR at 36283. The documents in pursuit of protection as a of any entry documents, false or Departments also emphasize that an significant adverse factor. otherwise). The use of fraudulent alien’s use of fraudulent documents to Contrary to commenters’ assertions, documents undermines the integrity of enter the United States is a ground that section 208 of the Act, 8 U.S.C. 1158, the immigration system and is renders the alien inadmissible. INA does not provide a waiver for the use of unnecessary for an alien to apply for 212(a)(6)(C), 8 U.S.C. 1182(a)(6)(C). This fraudulent documents to enter the asylum. In other words, because neither clear, negative consequence underscores United States, and section 209 of the fraudulent documents nor even entry congressional disapproval of the use of Act, 8 U.S.C. 1159, only waives a into the United States are requirements fraudulent documents to enter the ground of inadmissibility related to the to make an asylum application, the use United States. use of fraudulent documents, INA of such documents to enter or attempt In the NPRM, the Departments 212(a)(6)(C)(i), 8 U.S.C. 1182(a)(6)(C)(i), to enter the United States strongly explained why this factor considers use in conjunction with an application for suggests that the motive of an alien of fraudulent documents for aliens adjustment of status for an alien who using such documents is to enter the traveling through more than one country has already been granted asylum. United States for reasons other than a but not aliens arriving from a Consequently, neither provision applies genuine fear of persecution or a need for contiguous country. 85 FR at 36283 to the rule, which addresses solely protection. Consequently, the n.35. For aliens arriving from a discretionary determinations in Departments find it reasonable to contiguous country, an alien may connection with an asylum application. consider that factor as a significantly simply be carrying the documents he or Moreover, the potential availability of a adverse discretionary one for purposes she used to depart that country, waiver of a ground of inadmissibility, of adjudicating an asylum application, particularly in situations in which the which is itself discretionary, for an alien

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who has already been granted asylum relevant factors. See 85 FR at 36283, the United States has used COVID–19 as and is seeking lawful permanent 36285. In this regard, the rule aligns a ‘‘pretext’’ to close the Mexican border resident status does not suggest that the with the approach in Matter of Pula, to all asylum seekers. The commenter basis for the ground of inadmissibility is contrary to the commenters’ assertions. implied that these policies could not also a relevant discretionary The Departments note, however, that likewise cause an individual to be in a consideration in the first instance. the rule also supersedes Matter of Pula third country for longer than 14 days. Because this factor would discourage in some regards, as explicitly provided Commenters asserted that many use of fraudulent documents and in the NPRM. 85 FR at 36285. asylum seekers travel to the United streamline the discretionary analysis States by foot, bus, or train, which, regarding the use of fraudulent 4.7.4. Spent More Than 14 Days in Any commenters assert, often takes longer documents, the Departments believe the One Country than 14 days. Commenters asserted that factor would reduce the overall time Comment: Commenters expressed the length of an asylum seeker’s journey expended to address the issue of general concerns with the proposed is often extended due to the need to fraudulent documents on a systemwide regulation’s introduction of a bar that avoid detection from government basis because fewer aliens would use would make any person who spent more officials and non-government actors fraudulent documents and adjudicators than 14 days in any country en route to trying to return the asylum seeker back would consider their use more the United States ineligible for asylum. to the country from which the consistently. Although the use of Specifically, commenters asserted the individual is fleeing. Additionally, fraudulent documents to enter the new bar is cruel and arbitrary and commenters noted that there could be United States is difficult to track in capricious, and that it is designed to other reasons that an asylum seeker’s general and the Departments do not make most aliens who enter from the journey could be extended beyond 14 track the number of asylum applicants southern border ineligible for asylum. days, including robbery, kidnap, or who present such documents, the Commenters asserted that the NPRM’s rape. One commenter asserted that those Departments nevertheless expect less reasoning as to the necessity for a 14- who travel through southern Mexico time to be expended overall. To the day bar is inadequate and that the face additional hurdles, asserting that extent that this provision deters the use policy would be contrary to the concept the Mexican government refuses to issue of fraudulent documents, the provision of firm resettlement. One commenter travel documents and that the will conserve enforcement resources argued that the NPRM failed to explain government threatens to fine that may otherwise be spent ferreting how a 14-day stay in a country equates transportation companies that sell out fraud and will support the overall to an offer of firm resettlement, and tickets to those without travel integrity of the immigration systems and another asserted that the length of stay documents. ensure that benefits are not in a country is irrelevant to the merits One commenter expressed concern inappropriately granted. The of an LGBTQ asylum seeker’s claim. that the proposed regulation did not Departments find those benefits Additionally, one commenter stated that include an exception for children and outweigh the various concerns raised by being given an application to seek other discrete populations, who, the commenters. protection in another country does not commenter stated, might not have The Departments follow applicable equate to an offer of firm resettlement. control over the amount of time spent in law and regulations. If the proposed The same commenter argued the third countries en route to the United amendments cited by commenters were NPRM’s use of a single Federal case to States. not included in the version of the bill support the proposed provision—Yang Response: This factor is not a bar to that became law, then the Departments v. INS, 79 F.3d 932 (9th Cir. 1996)—is asylum, as commenters alleged. This do not follow or consider legislative not persuasive. The commenter stated factor is considered, along with all the history regarding such amendments. See that in Yang, refugees from Laos who other factors outlined in the rule, as part Park ‘N Fly, Inc. v. Dollar Park and Fly, spent 14 years in France with refugee of an adjudicator’s discretionary Inc., 469 U.S. 189, 194 (1985) status were denied asylum in the United analysis. Further, the NPRM clearly (‘‘Statutory construction must begin States. The commenter asserted that recognized that ‘‘individual with the language employed by using this case to support the position circumstances of an alien’s presence in Congress and the assumption that the that denying asylum applications for a third country or transit to the United ordinary meaning of that language anyone who spent 14 days in another States may not necessarily warrant accurately expresses the legislative country with no kind of lawful status is adverse discretionary consideration in purpose.’’). ‘‘irrational.’’ all instances,’’ and subsequently The Departments again note the Commenters argued that the proposed provided various exceptions. 85 FR at NPRM, which explains how the rule 14-day bar would punish those who 36284. interacts with case law regarding this seek to comply with U.S. policies. Consideration of this factor is not factor. 85 FR at 36283 n.35. Further, this Specifically, commenters noted that cruel or arbitrary and capricious. This rule supersedes previous regulations under the CBP ‘‘metering’’ policy, factor is considered adverse only when that case law may have interpreted in asylum seekers sometimes are required an alien spends more than 14 days in a reaching decisions prior to to wait more than 14 days (one country that permits applications for promulgation of the rule at hand. To the commenter stated that the wait could asylum, refugee status, or similar extent that other circuits have disagreed span months) in order to make their protections. The Departments believe with the Departments’ reasonable asylum claims. Commenters also that an alien should apply for protection interpretation, the Departments’ asserted that asylum seekers subject to at the first available opportunity, but the proposed rule would warrant re- MPP are often required to spend more Departments would not hold an alien evaluation in appropriate cases under than 14 days (up to weeks or months) responsible for failure to apply for well-established principles. See Brand in Mexico. Commenters expressed protection that does not, in fact, exist. X, 545 U.S. at 982. concern that asylum seekers subject to Asylum is a form of relief intended for The rule requires adjudicators to metering and MPP would be barred aliens who legitimately need urgent consider this factor, like all the factors from asylum under the proposed rule. protection. If any alien stays in one outlined in the NPRM, in light of all One commenter similarly argued that country for more than 14 days and that

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country permits applications for various whether an alien spent more than 14 Quarantine: Suspension of Introduction forms of protection but the alien fails to days in any one country that provides of Persons Into United States From apply for such protections, then the applications for refugee, asylee, or other Designated Foreign Countries or Places Departments consider that failure to be protections prior to entering or arriving for Public Health Purposes, 85 FR 16559 indicative of a lack of urgency on the in the United States is different from but (Mar. 24, 2020); Security Bars and alien’s part. This factor thus screens for related to the firm resettlement bar: If an Processing, 85 FR 41201 (July 9, 2020) urgency, an important consideration in alien successfully demonstrates that the (proposed rule). light of the growing number of asylum firm resettlement bar does not apply, For discrete populations, if applications the Departments receive: then an adjudicator would consider that circumstances exist that extend an The Departments have seen record factor as part of a discretionary analysis alien’s stay in one country to surpass 14 numbers of asylum applications, along regarding the asylum application. days, an adjudicator will consider such with record numbers of asylum denials, The Departments disagree that the circumstances to determine whether in the past decade. For comparison, in reference to Yang, 79 F.3d at 935–39, is they constitute extraordinary FY 2008, 42,836 asylum applications irrational. That case clearly circumstances. Further, an adjudicator were filed while, in FY 2019, 213,798 demonstrates why the Departments are will evaluate whether such alien falls asylum applications were filed. See promulgating this factor for into one of the three exceptions to this EOIR, Adjudication Statistics: Total consideration. As stated in the NPRM, factor. that case ‘‘uph[eld] a discretionary firm Asylum Applications (Oct. 13, 2020), 4.7.5. Transits Through More Than One resettlement bar, and reject[ed] the https://www.justice.gov/eoir/page/file/ Country Between His Country of premise that such evaluation is arbitrary 1106366/download. These record Citizenship, Nationality, or Last and capricious or that it prevents numbers have slowed the adjudication Habitual Residence and the United adjudicators from exercising process for all asylum seekers, including States those who urgently need protection. discretion.’’ 85 FR at 36284 (citing Thus, the Departments expect that Yang, 79 F.3d at 935–39). Such Comment: Commenters asserted that considering this factor will assist the reasoning is relevant to all cases in the proposed provision pertaining to efficient adjudication of asylum claims. which this factor is considered, whether transit through more than one country The NPRM does not equate either a the alien spent 14 days or 14 years in en route to the United States is arbitrary 14-day stay in one country or the offer another country. Further, contrary to the and capricious and contrary to to seek protection, on their own, as firm commenters’ assertion, even if the alien congressional intent. They stated that resettlement, contrary to commenters’ spent 14 days or more in another the rule would inappropriately assertions. For amendments to the firm country, this factor is not a bar to advantage asylum seekers coming from resettlement bar, commenters should asylum; rather, it is considered in light Mexico and Canada. Commenters refer to Section II.C.7 of the preamble to of all other relevant factors and various similarly asserted that the proposed rule the NPRM, 85 FR at 36285–86, and exceptions. See id. would advantage those coming from Section II.C.4.8 of the preamble to this For aliens subject to MPP, those aliens countries where direct flights to the final rule, revised at 8 CFR 208.15, who have entered the United States and United States are available and those 1208.15. were processed under MPP are no who could afford to purchase tickets on Contrary to commenters’ allegations, longer en route to the United States and such flights. They asserted that there the proposed treatment of an alien who have already applied for admission to was no rationale as to why asylum spends more than 14 days in a country the United States, whereas, this factor seekers travelling by air with one or en route to the United States as a considers whether an alien stayed for more layovers in another country significant adverse factor does not more than 14 days in one country should be treated differently from those conflict with firm resettlement. First, an ‘‘[i]mmediately prior to his arrival in the who took a direct flight. And they alien found to have firmly resettled is United States or en route to the United further expressed concern that the barred from asylum relief. INA States.’’ 8 CFR 208.13(d)(2)(i)(A), proposed factor would be particularly 208(b)(2)(A)(vi), 8 U.S.C. 1208.13(d)(2)(i)(A). If an alien claims onerous on women and LGBTQ asylum 1158(b)(2)(A)(vi). The provision at hand, that he was subject to metering and seekers. however, is not a mandatory bar but a waited more than 14 days in Mexico, he Commenters averred that the discretionary factor to be considered by or she may introduce such evidence as proposed factor of transit through more the adjudicator, subject to exceptions in an extraordinary circumstance. than one country conflicts with Federal cases where the alien’s application for Moreover, such aliens may apply for court precedent. Specifically, protection in the third country was protection in Mexico; if that application commenters noted that a Federal district denied, the alien is a victim of a severe is denied, then the factor would not court invalidated a prior regulation form of human trafficking defined in 8 apply. In addition, the Departments concerning a third country transit ban. CFR 214.11, or the alien was present in reject any contention that COVID–19 Commenters expressed concern that the or transited through only countries that has been used as a pretext to close the Departments are trying to implement the were not parties to the Refugee southern border. The government has ban a second time by making it a factor Convention, Refugee Protocol, or CAT at taken steps at the Canadian and in discretionary determinations and the relevant time. 8 CFR Mexican border to curb the introduction asserted that the proposed provision 208.13(d)(2)(i)(A)(1)–(3), (d)(2)(i)(B)(1)– and spread of the virus, which would likewise be struck down by the (3); see also 85 FR at 36824. Second, as continues to affect the United States and courts. proposed by the NPRM, the firm the entire world. See DHS, Fact Sheet: Commenters expressed concern with resettlement bar would apply ‘‘when the DHS Measures on the Border to Limit two of the NPRM’s proposed exceptions evidence of record indicates’’ that it the Further Spread of Coronavirus to the proposed third country transit would apply. 85 FR at 36286. Then, the (updated Oct. 22, 2020), https:// factor. First, one commenter contended alien bears the burden of proof to www.dhs.gov/news/2020/06/16/fact- that exempting travel through countries demonstrate that the bar does not apply, sheet-dhs-measures-border-limit- that are not party to the 1951 consistent with 8 CFR 1240.8(d). See id. further-spread-coronavirus; Control of Convention relating to the Status of Accordingly, the discretionary factor of Communicable Diseases; Foreign Refugees, the 1967 Protocol relating to

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the Status of Refugees, or the background, asylum and refugee countries may obtain asylum more Convention Against Torture and Other provisions were incorporated into U.S. easily in those countries. Including this Cruel, Inhuman, or Degrading Treatment law based on the United States’ factor will encourage aliens to seek or Punishment is overly narrow. international obligations, in part, from asylum in countries that are closest to Specifically, the commenter argued that the 1951 Convention relating to the them and encourage all treaty since 146 countries are party to the 1951 Status of Refugees and 1967 Protocol. signatories to do their fair share in convention and 147 countries are party Signatories to those agreements providing safe harbor for refugees. to the Protocol, the exception would be comprise an ‘‘international regime of For discussion of this rule’s effect on inapplicable to many asylum seekers’ refugee protection.’’ UNHCR, women and LGBTQ asylum seekers, see journeys. Second, commenters Implementation of the 1951 Convention Section II.C.1.3 of this preamble. The expressed concern that the proposed and the 1967 Protocol Relating to the Departments note here, however, that exception of applying for asylum in Status of Refugees: II. Background, ¶ 3, the rule applies to all asylum seekers countries visited en route to the United EC/SCP/54 (July 7, 1989), https:// regardless of gender or sexual States is not reasonable. Commenters www.unhcr.org/en-us/excom/scip/ orientation. asserted that the asylum systems of 3ae68cbe4/implementation-1951- Moreover, this factor is not an many nations through which asylum convention-1967-protocol-relating- eligibility bar for asylum; it is merely one factor to be considered as relevant, seekers commonly travel (such as status-refugees.html. To that end, the along with various other factors Guatemala, Honduras, and El Salvador) Departments believe this system outlined in the rule. The previous are not well developed and that the operates to ensure aliens may apply for rulemaking cited by commenters, countries are sometimes just as protection as soon as possible, not to dangerous as the ones from which they Asylum Eligibility and Procedural ensure that aliens receive protection Modifications, 84 FR 33829 (July 16, are fleeing. specifically from the United States. Response: The Departments disagree 2019), barred asylum relief to aliens Congress has authorized the that this factor is arbitrary and who failed to apply for protection in a Departments to bar an alien from capricious or contrary to congressional third country through which they applying for asylum in the United States intent. Although not a bar, this traveled en route to the United States. if the alien may be removed to a third discretionary factor is consistent with While that rule encompasses similar country that affords a full and fair case law regarding firm resettlement and considerations, it is fundamentally process for determining asylum claims safe third countries. See 85 FR at 36284. different because the 2019 rule Further, taken together with the or equivalent temporary protections, constituted a mandatory bar to asylum. exceptions, the factor is consistent with pursuant to a bilateral or multilateral This rule considers this factor as part of section 208(a)(2)(A) of the Act, 8 U.S.C. agreement. INA 208(a)(2)(A), 8 U.S.C. an adjudicator’s discretionary analysis. 1158(a)(2)(A). 1158(a)(2)(A). The United States shares Adverse judicial treatment of the 2019 Similar to the aforementioned factors the burden of processing asylum claims rule does not directly apply to this that consider whether an alien stayed in with other countries pursuant to various rulemaking, which the Departments one country for more than 14 days and agreements. See, e.g., Agreement propose to issue under a different whether an alien failed to seek Between the Government of Canada and statutory authority. See E. Bay protection in a country through which the Government of the United States of Sanctuary Covenant, 964 F.3d at 849 the alien transited en route to the America for Cooperation in the (distinguishing ‘‘the broad discretion to United States, this factor aims to ensure Examination of Refugee Status Claims deny asylum to aliens who are eligible that asylum is available for those who from Nationals of Third Countries, Dec. for asylum’’ from the narrower have an urgent need for protection. The 5, 2002, https://www.canada.ca/en/ ‘‘discretion to prescribe criteria for Departments generally believe that immigration-refugees-citizenship/ eligibility’’). aliens with legitimate asylum claims corporate/mandate/policies- The Departments disagree with would not forego the opportunity to operational-instructions-agreements/ commenters that the exception for seek protection in countries through agreements/safe-third-country- aliens who were present in or transited which they traveled if they had an agreement/final-text.html; DHS, Fact through countries that were, at the urgent need. However, the Departments Sheet: DHS Agreements with relevant time, not parties to the Refugee acknowledge that circumstances may Guatemala, Honduras, and El Salvador, Convention, Refugee Protocol, or CAT is exist in which an alien did, in fact, https://www.dhs.gov/sites/default/files/ too narrow. That exception is fashioned travel through more than one country publications/19_1028_opa_factsheet- to ensure that aliens have an and has an urgent need for asylum; northern-central-america-agreements_ opportunity to apply for protection— accordingly, the Departments outlined v2.pdf. Thus, asylum seekers from whether that be in the United States or three exceptions to this factor, see 85 FR countries in closer proximity to the in a country through which they transit. at 36284; 8 CFR 208.13(d)(2)(i)(A)(1)– United States or with direct flights to If a country does not offer such (3), (B)(1)–(3), 1208.13(d)(2)(i)(A)(1)–(3), the United States are not ‘‘advantaged,’’ protection, then an alien would not be (B)(1)–(3), in addition to the general and asylum seekers from countries that held to that standard and could avail consideration of extraordinary are farther away from the United States themselves of the third exception. circumstances or exceptional and or without direct flights to the United Regarding comments that the exceptions extremely unusual hardship that may States are not ‘‘punished.’’ If anything, to this factor are insufficient due to result if the application is denied. See aliens from countries farther away may danger in and underdevelopment of 85 FR at 36283–84. For these reasons, have more opportunities to seek most countries through which aliens the Departments did not promulgate this protection than those whose closest—or travel en route to the United States, the factor in an arbitrary and capricious potentially only—option is the United Departments note that, by becoming manner. States. In an ‘‘international regime of party to those treaties, the third Relatedly, this factor does not refugee protection,’’ it makes sense that countries through which an alien may improperly advantage asylum seekers aliens closer to the United States may have transited are obligated by treaty to from Canada, Mexico, or countries with obtain asylum more easily in the United provide protection from removal to direct flights to the United States. As States, just as aliens closer to other individuals who are likely to face

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persecution on account of a protected establish that juvenile charges and resulting from a denial of asylum. 85 FR ground or torture. See also Section convictions are not criminal convictions at 36283. III.C.4.7.2 of this preamble, supra and thus should not be considered The Departments disagree that this (discussing the availability of protection under the proposed regulation. factor creates a ‘‘categorical approach,’’ in countries outside the United States Similarly, the commenter cited research as commenters alleged. A categorical through which an alien may transit). suggesting that a child’s comprehension approach often applies when Accordingly, the Departments believe of the consequences for engaging in determining whether a particular the rule is consistent with section 208 criminal activity varies based on age. conviction qualifies as an offense that of the Act (8 U.S.C. 1158). The Accordingly, the commenter asserted, would render the alien ineligible for Departments note that regardless of individuals should not be subjected to discretionary relief. 8 CFR 208.13(c), whether an alien claims any of the excessive punishments for actions that 1208.13(c); see Kawashima v. Holder, exceptions, an alien may still assert that they took when they were young. 565 U.S. 478, 483 (2012). This factor denial of their asylum application Response: As an initial point, the merely counsels adjudicators that if a would result in extraordinary Departments note that this provision is conviction qualifies, it should be circumstances or produce exceptional fully consistent with long-standing case considered an adverse factor and extremely unusual hardship. law allowing adjudicators to notwithstanding any subsequent vacatur appropriately consider as an adverse or reversal of that sentence (unless the 4.7.6. Subject to § 1208.13(c) But for the discretionary factor ‘‘criminal conduct alien was found not guilty). But this rule Reversal, Vacatur, Expungement, or which has not culminated in a final takes no position on what approach Modification of a Conviction or conviction for purposes of the Act.’’ should apply—categorical or Sentence Matter of Thomas, 21 I&N Dec. 20, 23– circumstance-specific—in determining Comment: Commenters expressed 24 (BIA 1995) (collecting cases); cf. whether a conviction would so qualify. general concerns with the provision of Villanueva-Franco v. INS, 802 F.2d 327, Moreover, this factor does not affect the proposed regulation relating to 329–30 (9th Cir. 1986) (finding that the existing case law allowing the reversed or vacated criminal Board could consider alien’s extensive consideration of criminal activity as a convictions, asserting that it would lead criminal record, which included an discretionary factor, even when that to many asylum applications being expunged felony conviction for activity has not resulted in a conviction. inappropriately denied. assaulting a police officer, in weighing The rule, as proposed and in this final One commenter asserted that the whether voluntary departure was iteration, however, considers this factor proposed regulation would merited as a matter of discretion); as relevant to each case, along with inappropriately create a categorical Parcham v. INS, 769 F.2d 1001, 1005 consideration of extraordinary approach to considering vacated (4th Cir. 1985) (‘‘Evidence of an alien’s circumstances or exceptional and convictions in discretionary conduct, without a conviction, may be extremely unusual hardship that may determinations. The commenter considered in denying the discretionary befall an alien if asylum is denied. In asserted that adjudicators should relief of voluntary departure.’’); Matter this way, the rule is consistent with the consider vacated convictions on a case- of Seda, 17 I&N Dec. 550, 554 (BIA commenter’s suggestion that criminal by-case basis and argued that a vacated 1980) (noting that ‘‘a plea of guilty [that] activity must be considered on a case- conviction could provide positive results in something less than a by-case basis. equities that should be considered. conviction’’ is ‘‘a significant adverse The rule does not violate due process. Commenters asserted that the factor to be considered in whether a Consistent with long-standing case law, proposed regulation is inconsistent with favorable exercise of discretion is the rule requires adjudicators to due process. Specifically, one warranted’’ for voluntary departure), consider, as part of the discretionary commenter asserted that the proposed overruled on other grounds by Matter of analysis, convictions that remain valid regulation would bar from asylum relief Ozkok, 19 I&N Dec. 546, 552 (BIA 1988). for immigration purposes. See 85 FR at individuals who had criminal sentences Commenters did not persuasively 36284. Due process requires that an that were vacated, reversed, expunged, explain why the Departments should alien receive a full and fair hearing that or modified unless there was an express abandon this long-standing principle in provides a meaningful opportunity to be finding that the person is not guilty. The considering all conduct in making a heard. See Kerciku v. INS, 314 F.3d 913, commenter asserted that there could be discretionary determination, especially 917 (7th Cir. 2003). This rule does not instances where a prosecutor decides to conduct that initially led to a criminal violate due process because it does not decline to pursue a case further after conviction. deprive aliens of their right to a hearing learning of an underlying error in the Additionally, commenters’ concerns before an immigration judge, 8 CFR criminal proceedings without first that this factor will result in improper 1240.10, or their right to appeal to the making a determination as to the denials of asylum applications are BIA, 8 CFR 1003.1(b). defendant’s innocence or guilt. The speculative. This factor is not a bar to Moreover, because asylum is a commenter asserted that the proposed asylum. Compare Procedures for discretionary form of relief, aliens have regulation could cause some individuals Asylum and Bars to Asylum Eligibility, no constitutionally protected interest in in this position with otherwise 84 FR 69640, 69654–56 (Dec. 19, 2019) a grant of asylum. See Nativi-Gomez v. meritorious claims to be barred from (proposing additional bars to asylum Ashcroft, 344 F.3d 805, 807–09 (8th Cir. asylum. The commenter cited Nelson v. eligibility based on criminal convictions 2003) (explaining that an alien has no Colorado, 137 S. Ct. 1249, 1255–56 and clarifying when an order vacating or expectation that discretionary relief will (2017), and argued that such an outcome modifying a conviction or sentence will be granted and, consequently, no would violate due process principles. preclude the application of the protected liberty interest in such relief One commenter expressed concern proposed bars). Considered relative to (citing Ashki v. INS, 233 F.3d 913, 921 that the proposed regulation is all the other factors proposed in NPRM, (6th Cir. 2000)). Accordingly, this rule inconsistent with the INA and the BIA outcomes will vary on a case-by-case presents distinct issues from Nelson, decision, Matter of Devison, 22 I&N Dec. basis, given consideration of 137 S. Ct. at 1255–56, cited by a 1362 (BIA 2000). The commenter extraordinary circumstances or commenter. Nelson holds only that a asserted that the Act and precedent exceptional and unusual hardship state may not continue to deprive a

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person of his property—there, based on its own particular facts and the to the House version changed the thousands of dollars in costs, fees, and applicable law. wording of one of the exceptions from restitution—after his conviction has ‘‘changed country conditions’’ to 4.7.7. More Than One Year of Unlawful been reversed or vacated. The case ‘‘personal circumstances’’ in order to Presence in the United States Prior To broaden the exception for applications applied the balancing test in Mathews v. Filing an Application for Asylum Eldridge, 424 U.S. 319 (1976), which that would be accepted after the balances the private interest affected, Comment: Commenters generally statutory deadline. The commenter also the risk of erroneous deprivation of such expressed concern that consideration of highlighted a floor speech that the interest through procedures used, and unlawful presence in discretionary commenter argued evidenced the governmental interest at stake. determinations would lead to the denial congressional intent to create broad Because, unlike the monetary exactions of most asylum applications. One exceptions to the one-year deadline in at issue in Nelson, the rule affects no commenter expressed concern that the order to reduce the chance of arbitrary constitutionally protected liberty or proposed provision fails to account for denials. property interest, that case and the practical realities such as official ports One commenter argued that the Mathews balancing test do not apply. of entry being ‘‘effectively closed’’ to proposed regulation conflicts with The Departments will continue to asylum seekers for years and that it agency policy. Specifically, the apply Matter of Devison, 22 I&N Dec. could take more than a year to recover commenter argued that in Matter of Y– 1362 (BIA 2000), as relevant; however, from the trauma that led an individual C–, 23 I&N Dec. 286, 287 (BIA 2002), the to flee his or her country. the commenter misunderstands the BIA stated that a failure to file within Commenters asserted that inclusion of holding in that case. In that case, as the one-year deadline does not result in the proposed unlawful presence factor an absolute bar to filing an asylum referenced by a commenter, the BIA in discretionary determination is ultra held that an adjudication as a ‘‘youthful application. The commenter also vires. Specifically, commenters noted asserted that the proposed regulation is offender’’ constituted a determination of that section 208(a)(2)(d) of the Act (8 juvenile delinquency rather than a in conflict with 8 CFR 208.4(a)(4)–(5) U.S.C. 1158(a)(2)(d)) provides two and 8 CFR 1208(a)(4)–(5), which, the conviction under section 101(a)(48)(A) instances in which an asylum of the Act, 8 U.S.C. 1101(a)(48)(A). commenter asserted, provide broad application can be filed outside of the definitions for the changed and Matter of Devison, 22 I&N Dec. at 1366. one-year deadline: (1) Changed ‘‘In its reasoning, the Board drew a extraordinary circumstances exceptions. circumstances that affect eligibility for The commenter similarly asserted that critical distinction between a finding of asylum, and (2) extraordinary the proposed regulation is in conflict delinquency, which involves ‘status’ circumstances relating to the delay of with 8 CFR 208.4(a)(2)(B) and 8 CFR rather than guilt or innocence, and filing the application within one year. 1208.4(a)(2)(B), which require deferred adjudication or expungement. Commenters asserted that the proposed applicants to establish the exceptions Deferred adjudications constitute regulation would frustrate this statutory ‘‘to the satisfaction’’ of the adjudicator. convictions under the INA while framework because a person who filed The commenter noted that USCIS findings of delinquency do not.’’ Uritsky more than one year after his or her last guidance states the standard is one of v. Gonzales, 399 F.3d 728, 730 (6th Cir. entry into the United States but meets ‘‘reasonableness,’’ which, the 2005) (describing the BIA’s holding in one of the above-identified exceptions commenter asserted, is lower than that Matter of Devison) (internal citation could still see their application denied of ‘‘clear and convincing evidence.’’ The omitted). Accordingly, juvenile under the proposed rule as a matter of commenter asserted that USCIS’s adjudications of delinquency will discretion. Commenters also noted that articulation of the standard evidences continue to be evaluated in accordance there could be instances where the agency acknowledgement of with applicable statutes and regulations. exceptions would not be applicable congressional intent to have the But, because Matter of Devison does not until after the one-year deadline has exceptions be broadly available. hold that juvenile convictions cannot expired. Commenters stated that One commenter asserted that the qualify as criminal convictions under deadline exceptions are especially proposed regulation is inconsistent with the Act, the Departments decline to important for LGBTQ asylum seekers. the United States’ obligations under the apply it as suggested by the commenter. Commenters stated that the process to 1967 Protocol. Specifically, the The rule does not change or reinterpret understanding one’s identity as an commenter asserted that the UNHCR the definition or disturb case law LGBTQ individual can take more than Executive Committee opposed the one- regarding criminal convictions; in fact, one year and requires safety, security, year filing deadline when it was under the rule codifies long-standing case law and a support system that is often not consideration because it was concerned through promulgation of this factor. See available during flight from their home with the impact it would have on the 85 FR at 36284. To the extent countries. Similarly, commenters ability of the United States to offer commenters expressed disagreement asserted that it could take over a year to protection to those fleeing persecution. with the definition of ‘‘conviction’’ detect an HIV infection because of the The commenter similarly asserted that under the Act, that issue is outside the need for ‘‘culturally competent and President Clinton opposed the one-year scope of this rulemaking. clinically appropriate’’ medical care that filing deadline out of a concern for it Finally, to the extent commenters is often not available to asylum seekers being inconsistent with international queried whether particular types of outside of the United States. treaty obligations. cases with specific facts would Commenters argued that the proposed Response: This factor, like the other necessarily be denied, the Departments regulation conflicts with congressional factors, is not a bar to asylum. The find such queries speculative or intent. One commenter detailed the Departments proposed this factor as one hypothetical. Moreover, the legislative history surrounding the one- of many that an adjudicator must Departments do not generally provide year filing deadline. Specifically, the consider when determining whether an advisory opinions on asylum commenter noted that the Senate asylum application warrants a favorable applications, especially in a rulemaking. version of the bill in which the deadline exercise of discretion. 85 FR at 36283. Rather, the Departments expect that was debated raised the deadline from 30 Commenters’ concerns that their adjudicators will address each case days to one year and that an amendment consideration of this factor would result

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in the denial of most asylum accordance with the rule.64 unusual hardship warranting an applications are speculative, untethered Accordingly, the rule does not frustrate exercise of discretion by the Secretary or to the inherent case-by-case nature of the statutory framework. Attorney General. Compare 8 CFR asylum adjudications, and based on the The Departments disagree that the 208.4(a)(5), 1208.4(a)(5) (‘‘The burden of erroneous underlying premise that this rule conflicts with congressional intent proof is on the applicant to establish to factor functions as an eligibility bar. and agency policy. First, the the satisfaction of the asylum officer, the Moreover, this factor would, of its Departments note that legislative history immigration judge, or the Board of own force, result in the denial of only is secondary to the text of the statute Immigration Appeals . . . that the delay a small number, if any, of asylum itself. See Park ‘N Fly, Inc., 469 U.S. at was reasonable under the claims. For aliens who entered the 194 (‘‘Statutory construction must begin circumstances’’), with 8 CFR United States unlawfully and who with the language employed by 208.13(d)(2)(ii), 1208.13(d)(2)(ii) accrue at least one year of unlawful Congress and the assumption that the (Secretary or Attorney General may presence, the statutory one-year bar in ordinary meaning of that language favorably exercise discretion where one INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B), accurately expresses the legislative or more adverse discretionary factors are would likely apply independently, purpose.’’). The Supreme Court has present in ‘‘cases in which an alien, by regardless of this provision. And aliens explained the difficulty in examining clear and convincing evidence, who arrive in the United States lawfully legislative history because, oftentimes, demonstrates that the denial of the and maintain lawful status do not both support and opposition may be application for asylum would result in accrue unlawful presence and, thus, found, thereby ‘‘creat[ing] more exceptional and extremely unusual would not be subject to this provision. confusion than clarity.’’ Lamie v. U.S. hardship to the alien’’). The two INA 212(a)(9)(B)(ii), 8 U.S.C. Trustee, 540 U.S. 526, 539 (2004); see standards do not conflict because they 1182(a)(9)(B)(ii). Even if such aliens fell also Milner v. Dep’t of Navy, 562 U.S. apply in different contexts and serve out of status, their previous status may 562, 572 (2011) (‘‘We will not take the different purposes.65 The ‘‘to the demonstrate extraordinary opposite tack of allowing ambiguous satisfaction of the asylum officer’’ circumstances, 8 CFR 208.4(a)(5)(iv), legislative history to muddy clear standard reflects the statutory 1208.4(a)(5)(iv), which would excuse statutory language.’’). The Departments requirement that an alien must the statutory one-year filing deadline for read the plain language of the statute demonstrate extraordinary a ‘‘reasonable period,’’ and that conferring discretionary authority to the circumstances ‘‘to the satisfaction of the ‘‘reasonable period’’ is likely to be less Attorney General to adjudicate asylum Attorney General’’ to excuse a late-filed than the one year of unlawful presence applications in promulgating this asylum application. INA 208(a)(2)(D), 8 required to trigger this provision. See section of the rule, which guides the U.S.C. 1158(a)(2)(D). It reflects a Asylum Procedures, 65 FR 76121, exercise of such discretion through showing to be made by the alien in 76123–24 (Dec. 6, 2000) (‘‘Generally, the consideration of various factors. order to receive initial consideration of Department expects an asylum-seeker to Accordingly, in regard to this particular the asylum application, irrespective of apply as soon as possible after regulatory provision, the Departments its merits. The ‘‘clear and convincing expiration of his or her valid status, and rely on the text of the statute rather than evidence’’ standard reflects the showing failure to do so will result in rejection the legislative history. necessary to warrant the Secretary’s or Second, the rule does not conflict of the asylum application. Clearly, Attorney General’s favorable exercise of with agency policy. This factor, as waiting six months or longer after discretion when any significantly previously explained, does not function expiration or termination of status adverse factor—whether an unpaid tax as an absolute bar to asylum; therefore, would not be considered reasonable.’’). obligation, or the denial of two previous it does not conflict with case law Commenters’ concerns also do not applications—is present. This standard holding that extraordinary account for the exceptions to the accrual is consistent with prior standards set for circumstances may excuse untimely of unlawful presence, INA the application of that discretion to filing. Moreover, this factor does not 212(a)(9)(B)(iii), 8 U.S.C. immigration benefits. See 8 CFR conflict with current regulations, as 1182(a)(9)(B)(iii), or for situations in 212.7(d), 1212.7(d). It represents a alleged by a commenter. The rule does which the Attorney General or Secretary concluding consideration to determine not change the definitions for changed may grant an asylum application whether a grant of asylum is ultimately circumstances or extraordinary notwithstanding this factor. In short, appropriate and goes directly to the circumstances in 8 CFR 208.4(a)(4)–(5), commenters’ concerns that this merits of the asylum application. The 1208.4(a)(4)–(5), and the rule repeatedly provision will result in the denial of two standards therefore do not conflict. stated that the adjudicator will consider most asylum application is wholly this factor, along with all of the factors, The rule does not circumvent the unfounded. as part of the discretionary analysis. United States’ obligations under the This factor is consistent with the Act. Thus, it does not offend 8 CFR 1967 Protocol. In accordance with its The rule preserves consideration of the 208.4(a)(2)(B), 1208.4(a)(2)(B). non-refoulement obligations under the two statutory provisions, cited by In regard to one commenter’s concern 1967 Protocol, the United States commenters, in which aliens may file an that the rule’s ‘‘clear and convincing continues to offer statutory withholding asylum application outside of the one- evidence’’ standard would displace of removal and protection under the year deadline—changed circumstances USCIS’s current ‘‘reasonableness and extraordinary circumstances. See 85 65 standard’’ for excusing a late-filed For example, an alien may establish ineffective FR at 36285. Further, the rule provides assistance of counsel as an extraordinary application, the commenter conflates consideration of whether exceptional circumstance to excuse a failure to meet the one- the burden for showing extraordinary and extremely unusual hardship may year asylum application filing deadline. 8 CFR circumstances excusing the general one- 208.4(a)(5)(iii), 1208.4(a)(5)(iii). That showing, befall an alien if asylum was denied. For year filing deadline with the burden for however, simply allows the application to be filed the discrete populations referenced by and says little about whether the application should showing exceptional and extremely the commenters who file outside of the ultimately be granted as a matter of discretion, particularly if there are unrelated adverse factors to one-year deadline, adjudicators may 64 See supra Section II.C.1.3 for further discussion be considered, such as unpaid tax obligations. 8 consider those circumstances in on vulnerable populations. CFR 208.13(d)(2)(i)(E)(2), 1208.13(d)(2)(i)(E)(2).

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CAT regulations.66 The Departments make determinations as to whether an local income tax returns or that the also find commenters’ assertions individual is required to file taxes and Departments should ignore clear unpersuasive that the UNHCR Executive that by granting them such power the violations of law when aliens fail to do Committee and former-President proposed rule would infringe upon the so. Neither suggestion is well-taken by Clinton opposed the one-year deadline. province of the Department of the the Departments, as either As an initial matter, concerns regarding Treasury. Commenters asserted that the countenancing or ignoring violations of solely the one-year deadline are outside proposed rule would open the DOJ to the law is inconsistent with each’s the scope of this regulation because the numerous and costly lawsuits under the mission. Moreover, the comments fail to rule does not amend the deadline, nor APA where plaintiffs would allege that acknowledge clear case law that income could it. And, in any event, the an immigration judge’s misapplication tax violations are a significant adverse Departments are not aware that any of the tax code led to denials of asylum discretionary factor in the immigration court has endorsed the UNHCR applications. Moreover, commenters adjudication context. See, e.g., Matter of Executive Committee’s and President argued that such lawsuits would A–H–, 23 I&N Dec. 774, 782–83 (A.G. Clinton’s theory that the existing one- ‘‘effectively bankrupt’’ the United 2005) (noting that tax violations ‘‘weigh year time bar on asylum applications States. against asylum’’ because they exhibit violates international law. Commenters asserted that the ‘‘disrespect for the rule of law’’); cf. In proposed provisions relating to tax 4.7.8. Tax Violations re Jean Gilmert Leal, 2014 WL 4966499, violations would violate the U.S. *2 (BIA Sept. 9, 2014) (noting in the Comment: Commenters asserted that Constitution in two ways. First, context of an application for adjustment tax violations are not related to the commenters argued that the proposed of status that it is ‘‘well settled’’ that merits of an asylum application and that provisions conflict with the Eighth ‘‘failure [to file tax returns] is a negative the proposed regulation would punish Amendment’s proscription against cruel discretionary factor because it reflects asylum seekers for not understanding and unusual punishment. Specifically, poorly on the applicant’s respect for the tax law. Commenters asserted that commenters asserted that if an applicant rule of law and his sense of obligation another result of EAD regulations is that presents a meritorious claim, it would to his community’’). many asylum seekers work in the be cruel and unusual punishment to The Departments also note that informal economy and are paid ‘‘off the consider the ‘‘minor civil error’’ of not consideration of tax returns filed by books’’ to support themselves while filing taxes on time a ‘‘strict liability aliens are already enshrined in multiple their applications are pending. offense’’ that completely bars the Commenters argued that it is not applicant from asylum protection. places in immigration law. See, e.g., 8 reasonable to expect asylum seekers Second, commenters argued that the CFR 210.3(c)(3) (alien applicant for (some of whom, one commenter noted, proposed regulation would violate the legalization program may establish do not speak English) to navigate the Equal Protection Clause because the proof of employment through, inter alia, complexities of tax law to determine if proposed rule would create harsher Federal or state income tax returns); id. they are required to file taxes. Another penalties for asylum seekers who do not 214.2(a)(4) (alien dependents of certain commenter asserted that even if an file than for citizens and LPRs. visa holders who obtain employment asylum seeker determined that he or she Specifically, commenters asserted that authorization ‘‘are responsible for was not required to file, it would be by barring individuals from eligibility payment of all Federal, state and local difficult prove in court due to for asylum protection, the proposed rule income, employment and related taxes employment in the informal economy. would create harsher penalties for and Social Security contributions on The commenter also noted that in asylum seekers for tax non-compliance any remuneration received’’); id. seeking to comply with the proposed than for citizens and LPRs who would 214.2(5)(ii)(E) (restricting employment rule, asylum seekers may turn to, and be not face such severe consequences. eligibility for certain visa dependents defrauded by, notarios. Commenters also asserted that many when the proposed employment is One commenter asserted that, asylum seekers would not be able to contrary to the interest of the United contrary to the NPRM’s reasoning, comply with the proposed tax States, defined as, inter alia, consideration of this factor would provisions due to USCIS’s rules employment of visa holders or require more adjudicative time. pertaining to Employment dependents ‘‘who cannot establish that Specifically, the commenter asserted Authorization Documents (‘‘EAD’’). they have paid taxes and social security that longer asylum interviews and Commenters asserted that under the on income from current or previous hearings would be required to EAD rules, it is not possible for asylum United States employment’’); id. determine whether an asylum seeker seekers to receive a social security 214.2(g)(4), (5)(ii)(E) (same, but for a was required to file taxes. number (‘‘SSN’’) prior to obtaining an different visa category); id. Commenters further asserted that EAD. One commenter asserted that the 244.9(a)(2)(i), 1244.9(a)(2)(i) (income tax immigration judges are not qualified to IRS website is unclear on whether returns may serve as proof of residence asylum seekers without EADs would be for purposes of an application for 66 See R–S–C– v. Sessions, 869 F.3d 1176, 1188 eligible to receive Individual Taxpayer Temporary Protected Status (‘‘TPS’’)); n.11 (10th Cir. 2017) (explaining that ‘‘the Refugee Identification Numbers (‘‘ITIN’’). The id. 1244.20(f)(1) (adjudicator may Convention’s non-refoulement principle—which prohibits the deportation of aliens to countries commenter asserted that even if an require proof of filing an income tax where the alien will experience persecution—is asylum seeker is eligible for an SSN or return before granting a fee waiver for a given full effect by the Attorney General’s an ITIN, it could still be difficult for the TPS application); id. withholding-only rule’’); Cazun v. Att’y Gen. U.S., applicant to obtain the identity 1245.13(e)(3)(iii)(E) (alien applicant for 856 F.3d 249, 257 & n.16 (3d Cir. 2017) (similar); adjustment of status may establish proof Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir. documents needed to apply for an SSN 2016) (similar); Maldonado, 786 F.3d at 1162 or an ITIN from his or her home of physical presence in the United (explaining that Article 3 of the CAT, which sets country. States through, inter alia, income tax out the non-refoulement obligations of parties, was Response: In general, the comments records). To the extent that commenters implemented in the United States by the FARRA raised concerns about an alien’s ability and its implementing regulations). For further on this provision suggest either that discussion on international law principles as they aliens seeking asylum should be to navigate existing tax systems in the relate to this rulemaking, see section II.C.6.8 infra. excused from filing Federal, state, or United States—a question that is beyond

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the scope of this rule—they neither Federal tax obligations, not any Taxpayers (last updated Nov. 9, 2020), acknowledged the many existing provision proposed in the rule. To the https://www.irs.gov/individuals/free- provisions linking aliens, benefits, and extent that commenters oppose this tax-return-preparation-for-qualifying- income tax returns nor persuasively portion of the rule because they believe taxpayers (discussing the IRS’s explained why adherence to tax laws is it will lead aliens to engage in unlawful Volunteer Income Tax Assistance an inappropriate discretionary factor to behavior (i.e., working without an EAD), (‘‘VITA’’) program); see also Internal consider in the context of the rule. the Departments note that nothing in the Revenue Serv., IRS Publication 3676–B, The Departments disagree with rule requires any individual to engage in https://www.irs.gov/pub/irs-pdf/ commenters regarding the relation of tax unlawful behavior. Similarly, to the p3676bsp.pdf (explaining the types of violations to the statutory discretionary extent that commenters oppose the rule tax returns prepared under the VITA analysis. As the proposed rule because they believe it will cause aliens program). This rule requires explained, the Departments see no to fulfill an existing legal obligation (i.e., consideration of an asylum applicant’s concern with treating an asylum filing income tax returns) by utilizing compliance with tax laws as part of the applicant’s failure to file tax forms, individuals who themselves may engage adjudicator’s discretionary analysis and when required by law, as a negative in unlawful behavior (i.e., notarios), the merely provides direction to factor in an asylum adjudication when Departments also note that nothing in adjudicators regarding how to assess, as all other individuals required to file tax the rule requires aliens to hire a discretionary factor, an alien’s failure returns in the United States are subject individuals who engage in illegal to adhere to the law. It does not to negative consequences for failure to behavior. Further, even if aliens turn to substantively change tax law in any file required tax forms. See 85 FR at notarios to prepare and file tax returns, way. 36284. The Departments believe that they would do so not in response to the The Departments disagree with adherence to U.S. tax law is applicable rule, but in response to the myriad laws commenters’ concerns that evaluating to a favorable exercise of discretion, and documented above that already this factor will require more this factor evaluates such adherence as incentivize or require aliens to file adjudicative time. As discussed above, part of an adjudicator’s discretionary income tax returns. Moreover, under consideration of a failure to file income analysis. Matter of A–H–, 23 I&N at 782–83, tax returns is already an adverse factor The Departments find commenters’ immigration judges may already for purposes of asylum adjudications. concerns associated with working in the consider tax violations as a significantly See Matter of A–H–, 23 I&N at 783. ‘‘informal economy’’ to be unpersuasive. adverse factor, and commenters point to Thus, its further codification in Aside from the fact that working no evidence of their predicted dire applicable regulations will not without authorization is unlawful, the consequences from that decision. The appreciably require additional Departments emphasize the potential Departments therefore believe any such adjudicatory time. Further, even if it dangers of working without speculative harm is outweighed by the authorization, including exploitation, did, the benefit of clarity and guidance policy benefits of codifying this factor and, thus, strongly discourage aliens provided by this rule to the by rule and providing clear guidance to from doing so. Although not the discretionary analysis outweighs any adjudicators about how to weigh this purpose of this regulation, if the rule minimal, additional adjudicatory time. factor when exercising discretion to deters aliens from working without The Departments are confident that grant or deny asylum. In short, authorization, then the Departments asylum officers and immigration judges commenters’ concerns minimize find that to be a positive unintended possess the competence and personal responsibility and agency, are consequence. Further, to the extent that professionalism necessary to timely outside the scope of the rulemaking, and commenters assert this rule will have interpret and apply the relevant negative consequences on aliens who are outweighed by the policy benefits of regulations and statutes when are violating the law—either by working the rule. considering this factor. See 8 CFR without authorization or by failing to Commenters’ concerns about tax law 1003.10(b) (‘‘immigration judges shall file tax returns—the Departments find are similarly outside the scope of this exercise their independent judgment continuing illegal activity to be an rulemaking. Everyone, U.S. citizens and and discretion’’). Immigration judges insufficiently persuasive basis to alter non-citizens alike, are required to have undergone extensive training; the rule. comply with the tax laws. See 85 FR at further, immigration judges already To the extent that commenters are 36284 (citing 26 U.S.C. 6012, 7701(b); interpret and apply complex criminal opposed to the EAD regulations or 26 CFR 1.6012–1(a)(1)(ii), (b)). This rule law as it affects an alien’s immigration expressed concern in regard to notario does not change tax law, which, as status. In light of this, the Departments fraud, such concerns are outside the relevant to this rulemaking, requires disagree with commenters who claim scope of this rulemaking. Moreover, certain aliens to file tax forms without that immigration judges are not aliens who require an EAD but do not regard to their primary language or the qualified to make determinations based possess one should not be engaged in complexity of the tax code. on this factor. Relatedly, the Department employment, and aliens who have not Nevertheless, the IRS has assistance declines to address commenters’ engaged in employment will—unless available in multiple languages, see speculative assertions that they have another source of taxable Internal Revenue Serv., Help Available misapplication of the tax code by income—generally not be required to at IRS.gov in Different Languages and immigration judges will open up the file income tax returns that are the Formats (last updated Apr. 3, 2020), Departments to litigation, which will, in subject of the rule. Further, the https://www.irs.gov/newsroom/help- turn, bankrupt the Departments. As Departments recognize that notario available-at-irsgov-in-different- discussed, supra, the Departments have fraud exists, but it exists independently languages-and-formats, and there are already been considering the failure to of the rule and has existed for many numerous legitimate agencies, clinics, file income tax returns as a years. To the extent that notario fraud and nonprofits that can also be solicited discretionary factor for many years, and exists in tax preparation services, again, for assistance with tax law compliance, such considerations have not led to the that fraud exists outside of this rule and see, e.g., Internal Revenue Serv., Free dire consequences predicted by flows from long-standing state and Tax Return Preparation for Qualifying commenters.

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Likewise, the Departments disagree as asserted by the commenters, because Accordingly, an adjudicator may that this factor improperly infringes on it is only a factor to consider as part of consider the circumstances referenced the purview of the Treasury the discretionary component of asylum by the commenter—ineffective Department. This factor evaluates the eligibility under the Act. INA assistance of counsel, mental disability, tax status of aliens only as it applies to 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); see lack of counsel—and determine whether their immigration status, which is 85 FR at 36283. they constitute extraordinary clearly within the jurisdiction of the Commenters also misapply the Equal circumstances. Further, the Departments Departments. 8 CFR 208.2, 208.9(a), Protection Clause. This rule applies to reiterate that such aliens may still apply 1208.2, 1003.10(b). This factor does not all aliens and does not impose any for other forms of relief, such as non- determine tax-related responsibilities or classifications that would trigger discretionary withholding of removal consequences for such aliens. heightened scrutiny under the clause. and protection under the CAT. Commenters misapply the Eighth Thus, this factor does not offend Amendment’s protection against cruel principles of equal protection under the 4.7.10. Withdrawn a Prior Asylum and unusual punishment. The Eighth Constitution. Application With Prejudice or Been Amendment applies in the context of Finally, to the extent that commenters Found To Have Abandoned a Prior criminal punishments, protecting are concerned certain aliens may have Asylum Application against disproportional punishments as difficulties meetings their tax Comment: One commenter asserted they relate to the offense. See Roper v. obligations due to DHS’s EAD rules, the that the proposed provisions concerning Simmons, 543 U.S. 551, 560 (2005) Departments again note that these withdrawn and abandoned asylum (‘‘[T]he Eighth Amendment guarantees discretionary factors are not bars to applications are in conflict with a true individuals the right not to be subjected eligibility. The Departments note, discretionary determination. to excessive sanctions. The right flows however, that asylum seekers who lack Specifically, the commenter asserted from the basic precept of justice that an EAD should generally not have a tax that discretionary determinations punishment for crime should be liability as they are prohibited from require consideration of the factor in graduated and proportioned to the engaging in employment. Any other light of the totality of circumstances, as offense.’’ (cleaned up)). comments regarding specific IRS opposed to the proposed ‘‘strict Denial of an asylum application, requirements for the issuance of SSNs or liability’’ standard. however, is not a criminal punishment. ITINs are outside the scope of this rule. Commenters asserted that, contrary to As an initial matter, immigration the NPRM’s reasoning, there could be 4.7.9. Two or More Prior Asylum proceedings are civil in nature. See INS many valid reasons that an applicant v. Lopez-Mendoza, 468 U.S. 1032, 1038– Applications Denied for Any Reason would choose to withdraw or abandon 39 (1984) (‘‘A deportation proceeding is Comment: One commenter noted that an asylum application. One commenter a purely civil action[.]’’). Courts have there are many reasons that an asylum noted that pursuing a family-based visa held the Eighth Amendment applicant may have had two or more or Special Immigrant Juvenile (‘‘SIJ’’) inapplicable to deportation because, as prior asylum applications denied, status are two such examples. Another a civil proceeding, it is not a criminal including ineffective assistance of commenter noted that asylum seekers punishment. See Sunday v. Att’y Gen. counsel, mental disability that could be forced to abandon applications U.S., 832 F.3d 211, 219 n.8 (3d Cir. prevented the applicant from properly for reasons beyond their control, 2016) (collecting cases); Elia v. articulating the claim, and pursuing the including a failure by the government to Gonzales, 431 F.3d 268, 276 (6th Cir. claim pro se. The commenter asserted inform the asylum seeker of a court 2005); Bassett v. U.S. Immigration and that it would be inappropriate in such date, governmental notice that did not Naturalization Serv., 581 F.2d 1385, circumstances to deny future bona fide correctly state the time and place of a 1387–88 (10th Cir. 1978); cf. Lopez- asylum applications. hearing, or a proceeding occurring in a Mendoza, 468 U.S. at 1038–39. The One commenter asserted that it was language a respondent did not underlying principle of these cases is inappropriate to include the proposed understand. Another commenter that the power to exclude aliens through provision concerning denial of two or asserted that MPP has caused some deportation constitutes an ‘‘exercise of more asylum applications as a factor in asylum seekers at the southern border to the sovereign’s power to determine the discretionary determinations. Instead, abandon their applications. Specifically, conditions upon which an alien may the commenter argued, the presence of the commenter asserted that some reside in this country,’’ rather than an such a factor should be considered on asylum seekers who had been returned exercise of penal power. Trop v. Dulles, a case-by-case basis and together with to Mexico under MPP were 356 U.S. 86, 98, 101 (1958) (holding that all of the circumstances. subsequently kidnapped, which caused Congress cannot strip citizenship as a Response: This factor, like the other them to miss their hearings. The punishment under the Eighth factors, is considered under the totality commenter asserted that immigration Amendment, but distinguishing of the circumstances. Further, it is not judges have been instructed to enter an denaturalization of a citizen from a bar to asylum; it is one of various order of removal in such instances, even deportation of an alien); see also Fong factors that adjudicators should when the judge has serious concerns Yue Ting v. United States, 149 U.S. 698, consider in determining whether an that the asylum seeker did not appear as 705 (1893) (noting that the power to application merits a favorable exercise a result of kidnapping or violence. exclude aliens is an inherent function of of discretion. One commenter acknowledged the sovereignty). The Departments reiterate that existence of notarios and other bad Accordingly, denial of asylum, consideration of this factor, as well as actors who seek to abuse the asylum regardless of the reasoning underlying the other factors, does not affect the system by filing asylum applications such denial, cannot be construed as a adjudicator’s ability to consider whether without their clients’ knowledge or criminal punishment subject to the extraordinary circumstances exist or consent and by engaging in ‘‘ten year Eighth Amendment because it is whether denial of asylum would result visa’’ schemes. Rather than addressing adjudicated in a civil proceeding as a in exceptional and extremely unusual abuse, the commenter argued that the form of discretionary relief. Further, this hardship to the alien. 85 FR at 36285; proposed regulation would punish factor is not a ‘‘strict liability offense,’’ 8 CFR 208.13(d)(2)(ii), 1208.13(d)(2)(ii). asylum seekers who have been victims

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of such fraud because it could result in alien has concerns about the conduct of Commenters asserted that the future applications being rejected on his or her representative, the alien proposed ‘‘extraordinary discretionary grounds. should file an ineffective assistance of circumstances’’ exception is unfair One commenter asserted that asylum counsel claim or immigration fraud because it would not recognize valid offices have ‘‘piloted projects’’ claim. See, e.g., Sow v. U.S. Att’y Gen., explanations that, as one commenter encouraging representatives to waive 949 F.3d 1312, 1318–19 (11th Cir. 2020) noted, do meet the current ‘‘good cause’’ the asylum interview and have the (ineffective assistance of counsel); see standard. For example, one commenter matter referred directly to an also Viridiana v. Holder, 646 F.3d 1230, asserted that valid exceptions that may immigration court. The commenter 1238–39 (9th Cir. 2011) (distinguishing not rise to the level of extraordinary asserted that applicants may have relied between an ineffective assistance of circumstances include lack of child care on such action by asylum offices to counsel claim and immigration on the day of the interview, issues with assume the government did not have an consultant fraud and explaining that public transportation, medical issues, or objection to filing an asylum application fraud by an immigration consultant may an interpreter cancelling at the last for the purpose of being placed in constitute an extraordinary minute. One commenter asserted that removal proceedings. The commenter circumstance). Overall, however, the NPRM does not clarify what asserted that ICE should initiate removal concerns about the impact of explanations would rise to the level of proceedings in such situations if the unscrupulous attorneys are largely extraordinary circumstances. individual has ‘‘compelling reasons’’ to speculative and remain capable of One commenter asserted that the pursue cancellation of removal. appropriate redress. Thus, the proposed regulation would increase the Response: The Departments reiterate Departments decline to preemptively court backlog and that USCIS factors in that this factor, along with all the other attempt to resolve speculative or the possibility that applicants may not factors, is considered as part of the hypothetical concerns. appear for interviews to ensure that no discretionary analysis. The rule does not Further, should unusual interview slot is wasted. Specifically, propose a ‘‘strict liability standard,’’ as circumstances warrant, applicants may the commenter asserted that under alleged by commenters, and this factor’s present evidence so that adjudicators current USCIS policy, USCIS will presence does not bar asylum. The may consider whether it constitutes an typically wait 46 days before turning NPRM stated clearly that ‘‘[i]f the extraordinary circumstance or over a case to an immigration court, so adjudicator determines that any of these exceptional and extremely unusual as to give the applicant time to establish nine circumstances apply during the hardship, as previously described. good cause and reschedule a missed course of the discretionary review, the Viridiana, 646 F.3d at 1238–39. interview. By not giving USCIS such adjudicator may nevertheless favorably Accordingly, the Departments disagree flexibility, the commenter argued, more exercise discretion in extraordinary that consideration of this factor cases would be referred to the circumstances, such as those involving punishes asylum seekers who are immigration courts, thereby increasing national security or foreign policy victims of fraud. the backlog. considerations, or if the alien Finally, regarding commenters’ One commenter expressed concern demonstrates, by clear and convincing notation that asylum seekers may have with the proposed exception regarding evidence, that the denial of asylum relied on previous USCIS pilot programs the mailing of notices. The commenter would result in an exceptional and to assume the government did not have argued that it is unfair to require extremely unusual hardship to the an objection to filing an asylum applicants to prove that the government alien.’’ See 85 FR at 36283–84. application for the purpose of being sent the notice to the correct address. Accordingly, while the presence of this placed in removal proceedings, the The commenter also asserted that it is factor constitutes an adverse factor, Departments disagree that it would ever important for USCIS to send the notice adjudicators will consider extraordinary have been appropriate or authorized to to both the applicant and the applicant’s circumstances or exceptional and file an asylum application without an representative. By just sending the extremely unusual hardship—of which actual fear of persecution or torture and notice to a representative, the commenters referenced numerous an intent to seek such relief or commenter argued, a representative who examples—that may have led an protection. Indeed, the I–589 form itself had a falling out with his or her client applicant to withdraw or abandon a requires the alien’s attestation as to the (as a result of, the commenter prior application. truth of the information provided and highlighted, ineffective assistance of This rule does not ‘‘punish’’ asylum an acknowledgement of the counsel or dispute over payment) may seekers for the conduct of their consequences of filing a frivolous not inform the applicant of an upcoming attorneys. Although the actions of an application. interview, which could cause the attorney may bind an alien absent applicant to miss the interview. The 4.7.11. Failed To Attend an Interview egregious circumstances, Matter of commenter noted that in the current Regarding His or Her Asylum Velasquez, 19 I&N at 377, nothing in the COVID–19 environment, a Application rule prohibits an alien from either representative may not be able to go to alleging such circumstances to avoid the Comment: Commenters asserted that the office to receive mail in a timely withdrawal or raising a claim of the proposed provision concerning fashion, which means that some ineffective assistance of counsel.67 If an failure to attend an interview regarding applicants may not learn of the his or her asylum application is unfair, interview until it is too late. Conversely, 67 An alien may also file a claim with DOJ’s Fraud and that presence of the proposed factor the commenter argued, sending the and Abuse Prevention Program (Program), which should be one factor considered in notice only to applicants could lead to investigates complaints of fraud, scams, and context with the totality of the unauthorized practitioners and addresses these missed interviews because applicants issues within EOIR. See EOIR, Fraud and Abuse circumstances. who do not understand English may Prevention Program (last updated Mar. 4, 2020), disregard the notice due to a https://www.justice.gov/eoir/fraud-and-abuse- disciplinary authorities. Id. From the efforts of this misunderstanding of its importance. prevention-program. The Program also supports Program, and others, the Departments seek to investigations into fraud and unauthorized practice, ensure that aliens in proceedings before them are Response: This factor is not an prosecutions, and disciplinary proceedings initiated not victims to unscrupulous behavior by their absolute bar to asylum; instead, this by local, state, and Federal law enforcement and representatives. factor is considered as part of the

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adjudicator’s discretionary analysis. The bottom, the rule encourages aliens to an alien could claim that immigration proposed rule clearly stated that attend their interviews after filing an consultant fraud (or the like) is an presence of this factor constitutes an asylum application, which increases the extraordinary circumstances, see adverse factor, 85 FR at 36283, not an likelihood of being granted asylum and, Viridiana, 646 F.3d at 1238–39. asylum bar. Further, the alien may argue thus, reduces the likelihood of cases Commenters’ concerns about aliens that (1) exceptional circumstances being referred to an immigration judge. providing a correct address to the prevented the alien from attending the Accordingly, the Departments disagree Departments are also beyond the scope interview or (2) the interview notice was that this factor is arbitrary or unfair or of this rulemaking. Aliens are already not mailed to the last address provided would increase the backlog. Rather, the required to notify DHS of changes of by the alien or the alien’s representative current system allows aliens to prolong address, INA 265, 8 U.S.C. 1305, and and that neither received notice of the adjudication of their applications at the may face criminal, INA 266(b), 8 U.S.C. interview. See 8 CFR expense of slowing the entire system, 1306(b), or civil, INA 237(a)(3)(A), 8 208.13(d)(2)(i)(H)(1)–(2), such that other aliens fail to receive U.S.C. 1227(a)(3)(A), repercussions for 1208.13(d)(2)(i)(H)(1)–(2) (proposed). timely adjudication of their not doing so. The rule does not alter the Such exceptions are evidence that this applications. The Departments believe long-standing requirement that aliens factor does not constitute a bar to this current system is unfair and seek to notify the Government of their current asylum. resolve these inefficiencies through this address. The exceptions provided in proposed rulemaking. This exception employs a lower 8 CFR 208.13(d)(2)(i)(H)(1), As commenters aptly pointed out, standard of preponderance of the 1208.13(d)(2)(i)(H)(1) broadly allow for these cases may involve significant evidence. Meeting such burden varies ‘‘exceptional circumstances.’’ If the rule issues that must be determined and depending on the case; therefore, the identified exact circumstances sufficient further explored in an interview. The Departments decline to expand on the to negate this factor—departing the interview is a vital step in adjudication exact method of proof or documents United States or withdrawing the of an asylum application. See DHS, necessary to meet that burden. application for another reason, as Establishing Good Cause or Exceptional 4.7.12. Subject to a Final Order of suggested by the commenter—it would Circumstances (last updated Aug. 25, Removal, Deportation, or Exclusion and unnecessarily limit aliens to a narrow 2020), https://www.uscis.gov/ Did Not File a Motion To Reopen To set of permissible reasons for why an humanitarian/refugees-and-asylum/ Seek Asylum Based on Changed alien might have missed an interview. asylum/establishing-good-cause-or- Country Conditions Within One Year of The Departments recognize that a exceptional-circumstances (‘‘You must the Changes in Country Conditions number of reasons may cause an alien’s attend your scheduled asylum interview absence at an interview, including or the asylum office will treat your case Comment: Commenters expressed unanticipated circumstances by the as a missed interview (failure to concern that the proposed discretionary Departments, and the broad language appear).’’). Other regulatory provisions factor pertaining to failure to file a allows for such possibility. Contrary to already attest to the importance of this motion to reopen after a final order had the commenter’s allegations, the interview through imposition of blunt been entered and within one year since Departments included language consequences. See, e.g., 8 CFR changed country conditions emerged specifically referencing failure to 208.7(a)(iv)(D), 1208.7(a)(4) (providing would lead to the denial of most asylum receive the notice. See 8 CFR that an alien will be denied an EAD applications. As with other proposed 208.13(d)(2)(i)(H)(2), upon failure to appear for an interview, discretionary factors, commenters 1208.13(d)(2)(i)(H)(2) (proposed). absent extraordinary circumstances); see asserted that the proposed rule was not This factor is not arbitrary or unfair. also 8 CFR 208.10(b)(1), 1208.10 creating a true discretionary The current administrative process (providing that failure to attend an determination as a result of the weight required after an alien misses an interview may result in ‘‘dismissal of given to the presence of this proposed interview demonstrates the necessity of the application’’). In addition, aliens factor. One commenter asserted that by this factor’s inclusion in a discretionary who are inadmissible or deportable and giving this and other proposed factors analysis. While asylum officers may fail to attend their interview risk being significant negative weight, the currently follow a process for missed deemed to have waived their right to an Departments would be inappropriately interviews, as commenters described, interview, the dismissal of their deviating from Matter of Pula, which, missed interviews increase overall application, and being placed in the commenter argued, is well- inefficiencies because a case does not removal proceedings where they may established precedent. Commenters timely progress as the Departments ultimately be ordered removed by an asserted that the proposed discretionary intend. Commenters’ reasoning that the immigration judge. 8 CFR 208.14(c)(1). factor should be considered on a case- rule increases inefficiencies at the The NPRM’s consideration of this factor by-case basis and in context with all the hearing stage in place of rescheduling further reflects the urgency and circumstances. the interview in the first instance is importance of attending such interviews One commenter asserted that the nonsensical. If a missed interview is but for the most exceptional reasons. proposed factor is ultra vires and rescheduled, the case is prolonged at the For that reason, and not, as commenters conflicts with congressional intent outset, thereby increasing overall time alleged, to punish asylum seekers, the because it ‘‘directly contradicts’’ section to adjudicate the application. Moreover, Departments include it as a factor for 240(c)(7)(C)(ii) of the Act, 8 U.S.C. the application may still be adjudicated consideration. 1229a(c)(7)(C)(ii), which states in a hearing at a later date, adding even Commenters’ concerns about circumstances for which there are no more time overall for adjudication. If a problems that may arise between an time limits for filing a motion to reopen. missed interview triggers scheduling of alien and his or her representative are The commenter argued that the one case a hearing, as outlined in this rule, the speculative. Regardless of the cited by the NPRM in support of the case efficiently proceeds to the hearing rulemaking, such concerns are not proposed provision, Wang v. BIA, 508 stage where an adjudicator will balance without redress: an alien could file an F.3d 710, 715–16 (2d Cir. 2007), all factors, including the missed ineffective assistance of counsel claim, concerned a different provision of the interview, in a discretionary analysis. At see, e.g., Sow, 949 F.3d at 1318–19, or INA. Specifically, the commenter

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asserted that the asylum seeker in Wang lengthy delay in raising a claim as an precise date will be straightforward. was subject to a 90-day limit on filing adverse discretionary factor because Accordingly, the rule would not a motion to reopen and was arguing for such delays undermine the efficiency of produce ‘‘protracted disputes’’ about the equitable tolling in light of ineffective the overall system and may, as a date country conditions changed. assistance of counsel. The commenter secondary effect, delay consideration of Moreover, commenters did not thus argued it is ‘‘irrational’’ for the other meritorious claims. plausibly or persuasively explain why government to use the case to justify the Consideration of this factor does not an alien with a genuine well-founded regulation. impermissibly deviate from Matter of fear of persecution would delay in filing Another commenter expressed Pula. As explicitly stated in the NPRM, an asylum application for a significant opposition to the rule because it the rule’s approach supersedes Matter of length of time, and it strains credulity presumes that the exact date of a Pula. 85 FR at 36285. Because that such an alien would wait more than country condition change can be ‘‘[a]gencies are free to change their a year to seek asylum, absent some precisely determined, which in turn existing policies as long as they provide extraordinary circumstance. The rule presumes that country conditions ‘‘turn a reasoned explanation for the change,’’ requires that the alien exercise due on a dime.’’ Because, the commenter Encino Motorcars, LLC, 136 S. Ct. at diligence with regard to the case. 85 FR alleged, the NPRM did not provide 2125, the Departments permissibly at 36285. If, for some reason, the alien guidance on determining when a change superseded Matter of Pula’s approach. is unable to meet that one-year deadline exactly occurs, the commenter predicted See Section II.C.4.7 of this preamble for for reasons related to commenters’ ‘‘protracted disputes’’ over when a further discussion regarding the concerns that pinpointing the exact date change occurs, which would be permissibility of superseding that case. a country condition changed will be ‘‘antithetical to judicial economy.’’ One This factor also aligns with the problematic, an alien may present such commenter expressed disagreement statute. As commenters correctly stated, an event as an extraordinary with the NPRM’s reasoning that the section 240(c)(7)(C)(ii) of the Act, 8 circumstance in accordance with the proposed provision would increase U.S.C. 1229a(c)(7)(C)(ii), provides ‘‘there rule. See id. ‘‘efficiency in processing.’’ Specifically, is no time limit’’ to file a motion to The Departments have a significant the commenter asserted that the NPRM reopen to apply for relief under section interest in expedient, efficient failed to explain why adjudicating a 208 of the Act, 8 U.S.C. 1158, or section adjudication of asylum cases. See motion to reopen filed 13 months after 241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), Talamantes-Penalver v. INS, 51 F.3d the presence of changed country based on changed country conditions. 133, 137 (8th Cir. 1995) (‘‘Enforcement conditions would be less efficient than The rule does not institute a time limit of this nation’s immigration laws is adjudicating a similar motion filed 11 in contravention of the statute. enhanced by the speedy adjudication of months after the change. Nor was the Departments’ reference to cases and the prompt deportation of Response: This factor, like all other Wang, 508 F.3d at 715–16, irrational. offenders.’’). Establishing this factor factors discussed herein, is part of the That case demonstrated the importance strongly encourages and underscores the adjudicator’s discretionary analysis. 85 of aliens exercising due diligence in importance of expedient resolution of FR at 36285. This factor’s presence does their cases. The citation was not meant asylum cases; however, the Departments not bar asylum; an alien who files a to illustrate an identical fact pattern note that expediency and efficiency do motion to reopen based on changed justifying the entire regulation, as one not trump extraordinary circumstances country conditions more than one year commenter alleged. that may exist or exceptional or following such changed conditions may Although the Departments extremely unusual hardship that may still show that extraordinary acknowledge it may be difficult to result if asylum is denied. circumstances exist or that denial of ascertain the precise date on which The Departments have determined asylum would result in an exceptional country conditions changed, the that the appropriate timeframe within and extremely unusual hardship to the Departments also do not believe that which an alien should be able to file a alien. 8 CFR 208.13(d)(2)(ii), ascertaining one specific day is motion to reopen based on changed 1208.13(d)(2)(ii) (proposed). necessarily required in most cases or country conditions is one year from a Accordingly, applications are indeed that an inability to ascertain the precise changed country condition. Currently, considered on a case-by-case basis, and date undermines the rule’s efficacy. the regulation at 8 CFR 1208.4(a)(4)(ii) concerns that this factor would result in Even if country circumstances do not provides that an alien should file an denial of most asylum applications is ‘‘change on a dime’’ and adjudicators asylum application can project only a range of dates, many speculative. within a reasonable period, given those Further, commenters did not engage cases would fall clearly inside or ‘‘changed circumstances.’’ If the applicant the Departments’ animating thrust outside the one-year window. For can establish that he or she did not did not behind this provision—to discourage example, if evidence showed that become aware of the changed circumstances dilatory claims, encourage the timely country conditions changed over a until after they occurred, such delayed adjudication of new claims, and three-month period and the applicant awareness shall be taken into account in improve overall efficiency. Those filed two years outside the period, an determining what constitutes a ‘‘reasonable benefits far outweigh any alleged adjudicator would be able to find this period.’’ concerns raised by commenters, adverse factor notwithstanding Case law broadly applies this especially since the presence of difficulty in ascertaining a single day on ‘‘reasonable period’’ standard. See ‘‘changed country conditions’’ is a clear which country conditions changed. In Pradhan v. Holder, 352 F. App’x. 205, statutory basis for filing a motion to the Departments’ view, the one-year 207 (9th Cir. 2009) (explaining that, reopen. INA 240(c)(7)(C)(ii), 8 U.S.C. window provides ample time for aliens based on the record, the immigration 1229a(c)(7)(C)(ii). Both the Departments to file a claim. And, in any event, the judge properly denied an asylum and aliens have a clear interest in Departments doubt that it will be so application filed 11 months after the raising and adjudicating claims for difficult to ascertain a precise date in applicant learned of changed country asylum in a timely fashion. To that end, many cases. When a discrete event— conditions and his family kept him there is nothing unreasonable or e.g., a ceasefire in a civil war—changes apprised of the political climate in the inappropriate about considering a a country’s conditions, determining a country); cf. Ljucovic v. Barr, 796 F.

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App’x. 898, 899 (6th Cir. 2020) Persons Act. See An Act to Amend the proposed provision would (dismissing for lack of jurisdiction a Displaced Persons Act of 1948, Public inappropriately exclude most asylum petition challenging the BIA’s denial of Law 81–555, 64 Stat. 219 (1950). The seekers who were returned to Mexico a motion to reopen asylum proceedings commenter asserted that the under MPP because MPP often requires four years following awareness of a amendments were designed to ensure aliens to wait in Mexico for more than changed condition because the that those who temporarily resided in a year. Another commenter stated that petitioner did not exercise due diligence parts of Europe following their flight UNHCR estimates that approximately 16 and file within a reasonable period of from Nazi persecution would remain million refugees have spent five years in time). This factor would be no more eligible for protection in the United countries where they could not be difficult to apply than 8 CFR 1208.4’s States. Under the proposed rules, the considered firmly resettled and that ‘‘reasonable period’’ standard, and, for commenter argued, these same they would be inappropriately barred purposes of the discretionary analysis, individuals would be inappropriately from asylum under the proposed this rule determines that a reasonable barred from asylum. provision. Commenters expressed period of time is one year within the Commenters expressed concern that, concerns that the proposed provision date of the changed country condition. under proposed 8 CFR 208.15(a)(1), does not include exceptions for Further, just as 8 CFR 1208.4 allows individuals unaware of third country individuals who are victims of adjudicators to consider ‘‘delayed resettlement laws in countries through trafficking, lack the financial means to awareness’’ in evaluating ‘‘what which they fleetingly passed could be leave a third country, or fear constitutes a reasonable period’’ when punished and that those attempting to persecution in the third country. determining whether an alien may firmly resettle in a third country could Commenters asserted that examples in apply for asylum, this factor similarly face a number of challenges the United States demonstrate the allows adjudicators to consider whether incompatible with the congressional problems with proposed 8 CFR extraordinary circumstances or intent of the concept of firm 208.15(a)(2). Commenters asserted that exceptional or extremely unusual resettlement. Commenters argued, for recipients of Deferred Action for hardship would arise when determining example, that those attempting to firmly Childhood Arrivals—who commenters whether to exercise discretion to grant resettle could face restrictions on noted are granted permission to stay in or deny asylum. freedom of movement, unfair the United States in two-year Because Congress determined it immigration procedures, government increments—would be considered reasonable for aliens to file an initial corruption, violence, and the practical firmly resettled under the proposed rule application within one year of arrival, inability to obtain legally guaranteed even though their status could be INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B), documents permitting asylees the right rescinded at any time. Second, the Departments similarly find it to live and work in the country while an commenters similarly asserted that reasonable to use a one-year timeline, application is pending. Commenters many undocumented individuals in the rather than 11 months or 13 months as similarly asserted that, contrary to the United States have lived here for suggested by commenters, in evaluating NPRM’s reasoning, the number of decades, but that they cannot be this factor as part of a larger resettlement opportunities has not considered firmly resettled because they discretionary analysis, subject to the grown in recent years, and that are denied the opportunity to fully and exceptions previously described. The considering whether a third country is meaningfully participate in public life Departments recognize that any specific a signatory to the Refugee Convention is and they live and work under the fear deadline is inherently both over- and not sufficient to determine whether firm of removal. under-inclusive to some extent, but the resettlement is possible. A firm Commenters opposed proposed 8 CFR benefits of a clear deadline that is both resettlement inquiry, commenters 208.15(a)(3). One commenter stated that familiar to applicants and adjudicators argued, requires a case-by-case the proposed provision is unclear as to and straightforward to administer consideration of the facts and when presence in a country of outweigh any purported benefits circumstances. citizenship occurred. The commenter attributable to an unfamiliar and Commenters asserted that proposed 8 asked, ‘‘[d]oes it mean that the applicant uncommon deadline—e.g., 13 months— CFR 208.15(a)(1) would replace a clear must have been present there sometime or one that is more difficult to apply— standard that is well-established in before coming to the United States, e.g., a ‘‘reasonable period’’—particularly Federal case law and international law anytime in their whole lives?’’ The in the context of a discretionary with an ambiguous standard that would commenter asserted that it is unfair and analysis. require adjudicators to speculate in unreasonable to consider someone regard to what applicants could have firmly resettled in a country of 4.8. Firm Resettlement done in third countries through which citizenship without also considering Comment: Commenters asserted that they transited. Accordingly, factors such as whether such individual the proposed firm resettlement commenters argued, the proposed has the right to reside in the country provisions conflict with international provision would result in lengthy and could be reasonably expected to do law. Commenters stated that Congress litigation. One commenter asserted that so. Commenters asserted that proposed considered the language in section the proposed provision is not legally 8 CFR 208.15(b) conflicts with Matter of 208(b)(A)(vi) of the Act, 8 U.S.C. defensible, as evidenced by the recent A–G–G–, 25 I&N Dec. 486 (BIA 2011), 1158(b)(A)(vi), to be equivalent to transit bar litigation invalidating a which commenters asserted requires Article 1E of the Refugee Convention, similar provision. DHS to present evidence that a which only considered refugees to be Commenters also stated opposition to mandatory bar applies. Commenters resettled when they permanently took proposed 8 CFR 208.15(a)(2). stated that, under the proposed up residence in a third country or were Commenters expressed concern that the provision, if DHS or an immigration afforded rights comparable to third proposed one-year bar would apply judge raises the issue that the firm country nationals. One commenter even if there is no possibility of ever resettlement bar might apply, then the stated that the permanent residency obtaining a permanent or indefinitely burden of proof shifts to the respondent. requirement is further evidenced in the renewable status in the country. This burden shifting, commenters 1950 amendments of the Displaced Commenters also asserted that the argued, would increase the number of

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unjust asylum application denials R–A–, 24 I&N Dec. at 631 (explaining and relies principally on the concepts of because pro se asylum seekers— that agencies are not bound by prior an ‘‘offer’’ 70 and of ‘‘acceptance’’ of firm especially non-English speakers and judicial interpretations of ambiguous resettlement, even though the INA does detainees—lack access to the knowledge statutory interpretations because there is not require an offer or acceptance for the or resources necessary to satisfy their a presumption that Congress left provisions of INA 208(b)(2)(A)(vi), 8 burden of proof. Moreover, one statutory ambiguity for the agencies to U.S.C. 1158(b)(2)(A)(ii), to apply. See commenter stated that if the proposed resolve). A clearer interpretation will Matter of A–G–G–, 25 I&N Dec. at 501– provision grants authority to DHS help adjudicators in making firm 03 (discussing the various aspects of its counsel to determine that firm resettlement determinations. Circuit four-step framework). Ultimately, the resettlement applies, even if an courts have previously provided best reading of the Board’s cases is that immigration judge disagrees, then the diverging interpretations of the firm the availability of some type of subsection would inappropriately usurp resettlement requirements. See Matter of permanent legal immigration status or immigration judges’ authority. A–G–G–, 25 I&N Dec. at 495–500 any non-permanent but indefinitely One commenter asserted that the (explaining differing circuit court renewable legal immigration status— proposed rule would inappropriately approaches under the prior firm regardless of whether the alien applies permit the firm resettlement resettlement regulations). for such status or has such status circumstances of a parent to be imputed In addition, as discussed further offered—is sufficient to raise the to children and that a child’s case must herein, efforts by the Board to provide possibility of the firm resettlement bar, be considered separately from his or her clarity have not been fully successful, as and that reading is incorporated into the parents’ cases. Commenters similarly its four-step framework reflects an rule.71 See id. at 503 (‘‘The regulations asserted that it is unreasonable to expect unwieldy amalgamation of two only require that an offer of firm children to comport their movements competing approaches offered by resettlement was available, not that the and behavior in accordance with the Federal courts: The ‘‘direct offer alien accepted the offer.’’). Based on proposed regulation. approach’’ and the ‘‘totality of the these considerations and others, as Commenters noted that refugees—in circumstances approach.’’ Id. at 496–98, described more fully below, the addition to asylum applicants—are 501. Further, as described more fully Departments have concluded that the subject to a statutory bar based on firm below, its framework is not directed by current framework—with its case-by- resettlement. See INA 207(c)(1), 8 U.S.C. any applicable statute or regulation,69 case development and four-step 1157(c)(1). At least one commenter contains internal tension, is in tension framework that is divorced from any suggested that refugee admission with other regulations regarding the statute or regulation—invites confusion applicants and asylum applicants parties’ burdens, introduces ambiguous and inconsistent results because of should be subject to the same standards. concepts such as indirect evidence of an immigration judges’ potentially Commenters noted that, because offer of firm resettlement of ‘‘a sufficient subjective judgments about how the Congress enacted laws to protect level of clarity and force,’’ id. at 502, framework should apply to the refugees and intended the firm particular evidence in any given case. resettlement bar to exclude refugees 69 Although the Board in Matter of A–G–G–, 25 The Departments accordingly believe from protection only in narrow I&N Dec. at 501, asserted that its framework follows that the rule-based approach contained circumstances, the proposed standard the language of 8 CFR 1208.15, nothing in the text of that regulation actually outlines a particular in this final regulation is more for firm resettlement was an ‘‘affront to framework to follow when considering issues of appropriate. See Lopez v. Davis, 531 Congressional intent.’’ firm resettlement, and the regulation certainly does U.S. 230, 244 (2001) (observing that ‘‘a Response: Despite a lengthy history of not delineate the four steps put forth by the Board. single rulemaking proceeding’’ may international law, regulatory Further, the Board’s reading of 8 CFR 1240.8(d) to suggest that DHS bears the initial burden at step one allow an agency to more ‘‘fairly and enactments, and circuit court of its framework of establishing evidence that the efficiently’’ address an issue than would interpretations, firm resettlement bar applies, Matter of A–G–G–, 25 ‘‘case-by-case decisionmaking’’ see Matter of A–G–G–, 25 I&N Dec. at I&N Dec. at 502, is likewise atextual, and is further (quotation marks omitted)). 489–501 (explaining firm resettlement called into significant doubt by a recent decision of the Attorney General, see Matter of Negusie, 28 I&N In interpreting the statutory language, history), Congress ultimately codified Dec. 120, 154–55 (A.G. 2020) (‘‘Consistent with the the Departments considered the history the firm resettlement bar to asylum in clear statutory mandate that an alien has the burden IIRIRA without including any specific of proving eligibility for immigration relief or 70 The Board’s efforts to refine the concept of an firm resettlement requirements, just as it protection, the regulations make plain that if ‘‘offer’’ have not improved the clarity of the had previously codified a firm evidence in the record indicates that [a] bar may application of the firm resettlement bar, as apply, then the applicant bears the additional adjudicators may understandably be confused about resettlement bar to refugee admission burden of proving by a preponderance of the how to consider whether an alien accepted an offer without any specific requirements, INA evidence that it does not. Although the evidence in that was ‘‘available,’’ but not necessarily made. 207(c)(1), 8 U.S.C. 1157(c)(1). Rather, the record must raise the possibility that the bar Matter of A–G–G–, 25 I&N Dec. at 502–03. Similarly, the statutory language only states that ‘may apply,’ id. § 1240.8(d), neither the statutory the Board adopted a ‘‘totality of the evidence’’ nor the regulatory scheme requires an extensive or standard, id. at 503, but did not explain if that asylum shall not be granted to an alien particularized showing of the bar’s potential standard was intended to encompass the Federal who ‘‘was firmly resettled in another applicability, and evidence suggesting the bar’s courts’ ‘‘totality of the circumstances’’ approach or country prior to arriving in the United applicability may come from either party. While the to constitute something different. States.’’ INA 208(b)(2)(A)(vi), 8 U.S.C. immigration judge must determine whether the 71 As discussed herein, the Departments evidence indicates that the . . . bar may apply— recognize that other parts of Matter of A–G–G– are 1158(b)(2)(A)(vi). Accordingly, the and, thus, whether the alien bears the burden of superseded by this rule because, inter alia, they are Departments are using their regulatory proving its inapplicability—that determination is an unwieldy to apply, in tension with other authority to interpret this ambiguous evidentiary one that does not stem from any burden regulations or with other parts of the decision itself, statutory language.68 See Matter of on DHS. This conclusion is underscored by other do not represent the best implementation of the statutory and regulatory provisions that specify statute, do not appreciate the actual availability of when DHS is required to assume an evidentiary firm resettlement in many countries, and are 68 The Departments acknowledge that the concept burden. Placing an initial burden on DHS to outweighed by the benefits of the rule as a policy of firm resettlement is a statutory bar to both establish the applicability of the . . . bar would be matter. Thus, the Departments have provided refugee admission, INA 207(c)(1), 8 U.S.C. contrary to the relevant statutory and regulatory ‘‘reasoned explanation[s]’’ for their departures from 1157(c)(1), and the granting of asylum, INA scheme, and would unnecessarily tax its limited Matter of A–G–G– to the extent that there are actual 208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi). The two resources.’’ (footnote, citations, and internal departures. See Encino Motorcars, LLC, 136 S. Ct. separate bars were enacted 16 years apart. quotations omitted)). at 2125 (citing Brand X, 545 U.S. at 981–82).

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of the firm resettlement concept and to apply, the alien must be able to reside country.’’ Id.73 In including this ground, determined that prior interpretations do permanently or indefinitely in the third the Departments do not believe that not fully address the need for clarity country, and temporary or unstable legal presence should be a requirement and specific delineation of the meaning statuses would not meet that definition. of firm resettlement, as persons can live of firm resettlement. Moreover, prior Similarly, in order for this first ground indefinitely without status in a country. adjudicatory interpretations do not to apply to aliens who ‘‘could have’’ For example, according to a 2017 study, effectively appreciate the availability of resided in a permanent or indefinite the median duration of residence for the firm resettlement in many countries. status, the immigration judge must make United States’ undocumented Thus, the Departments believe that a a finding that the alien was eligible for, population is approximately 15 years. broader interpretation of firm and otherwise would be granted, See Pew Research Center, Mexicans resettlement is necessary to ensure that permanent or indefinite status under the decline to less than half the U.S. the United States’ overburdened asylum laws of the third country. Moreover, the unauthorized immigrant population for system is available to those with a Departments disagree with commenters the first time (June 12, 2019), https:// genuine need for protection, and not that the rule should retain the exception www.pewresearch.org/fact-tank/2019/ those who want to live in the United for aliens who reside in a third country 06/12/us-unauthorized-immigrant- States for other reasons and simply use but have the conditions of their stay population-2017/. It is reasonable to the asylum process as a way to achieve ‘‘substantially and consciously conclude that such persons should be those goals. See 85 FR at 36285–86. The restricted.’’ See 8 CFR 1208.15(b) considered ‘‘firmly resettled’’ in the Departments’ interpretation also (current). The Departments note that the United States and do not intend to live comports with the overall purpose of language of the current regulation is in the United States only temporarily, the asylum statute, which is ‘‘not to more apt to cause confusion because it and by the same reasoning, aliens who provide [applicants] with a broader is not clear why—or perhaps even have resided for long periods in other choice of safe homelands, but rather, to how—a country would offer citizenship countries—even without legal presence or status—can similarly be considered protect [refugees] with nowhere else to or permanent legal residence to ‘‘firmly resettled.’’ Further, spending turn.’’ Matter of B–R–, 26 I&N Dec. at someone yet ‘‘substantially and more than a year in a third country 122 (quotation marks omitted). consciously’’ restrict that person’s shows that the alien can support himself The Departments’ definition creates residence. Further, the Departments or herself or has the ability to receive three grounds for a finding of firm believe that interpreting the firm 72 necessary support. Separately, the resettlement. The first ground resettlement bar to apply to any type of captures aliens who have resided, or Departments note that, contrary to permanent or indefinite status advances commenters’ concerns, the second could have resided, permanently or the goal of limiting asylum forum indefinitely in a country but who have ground would not apply to physical shopping by persons who have the chosen not to pursue such residence in Mexico after an alien was ability to live in a third country. opportunities. The Departments have returned to Mexico under the MPP, determined that the firm resettlement The second ground captures aliens because such aliens would already be bar should apply regardless of whether who are living for an extended period of considered to have arrived in the United the alien received a direct offer of more than one year in a third country States. Thus, time spent in Mexico resettlement from the third country. The without suffering persecution. By living solely as a direct result of returns to Departments believe that aliens should safely in a third country for more than Mexico after being placed in MPP will reasonably be required to pursue a year without suffering persecution, the not be considered for purposes of that settlement opportunities when fleeing alien has evinced the ability to live long specific element of the firm resettlement persecution and entering a new country, term in that country and is thereby bar.74 rather than forum shopping for their ‘‘firmly’’ resettled as interpreted by the The Departments also recognize that destination. See Matter of A–G–G–, 25 Departments. The dictionary definition this second ground does not follow the I&N Dec. at 503 (explaining the purpose of ‘‘firm’’ is ‘‘securely or solidly fixed in language of the Refugee Convention or of the firm resettlement bar ‘‘is to limit place,’’ not ‘‘uncertain,’’ and ‘‘not the Refugee Protocol, which require the refugee protection to those with subject to change or revision.’’ Firm, alien to be recognized by the third nowhere else to turn’’). This Merriam Webster, https:// country as possessing the same rights requirement is also supported by the www.merriam-webster.com/dictionary/ and obligations as citizens of that fact that, as discussed in the NPRM, 43 firm. The Departments believe that this country. See 1951 Convention Relating additional countries have signed the ground reasonably meets this definition, to the Status of Refugees, Art. 1(E). In Refugee Convention since 1990, as an alien who is living in a third codifying the statutory firm resettlement evincing an increasing ability of an alien country for more than a year can be bar as part of IIRIRA, however, Congress to find safe haven outside his or her considered to be ‘‘fixed in place’’ and home country. See 85 FR at 36285–86 & not thought to be present in the third 73 By requiring that an alien live in any ‘‘one’’ country only temporarily. third country for more than a year before triggering n.41. Contrary to commenters’ claims, this ground, the Departments also recognize that it this first ground does not apply to aliens Consistent with the purpose of the would not necessarily exclude aliens who make if the third country grants only asylum statute, the Departments believe their flight in stages, Yee Chien Woo, 402 U.S. at temporary or unstable statuses. For the 57 n.6, as aliens who remain in multiple countries that asylum should not be made over multiple years before coming to the United first ground of the firm resettlement bar available to persons who ‘‘have long States are unlikely to have their travel to the United since abandoned’’ traveling to the States viewed as ‘‘reasonably proximate’’ to their 72 In comparison to the NPRM, this final rule United States in their flight from flight. 74 expands the language in 8 CFR 208.15(a)(1) and persecution. See Rosenberg v. Yee Chien An alien who physically resided voluntarily, 1208.15(a)(1) by breaking the first ground into three and without continuing to suffer persecution, in subparagraphs and changing the syntax to improve Woo, 402 U.S. 49, 57 n.6 (1971). Rather, Mexico for one year or more after departing the readability and clarity and to avoid confusion. The travel to the United States should be alien’s country of nationality or last habitual changes in the final rule are stylistic and do not ‘‘reasonably proximate’’ to the flight residence and prior to arrival in or entry into the reflect an intent to make a substantive change from from persecution and not be interrupted United States would potentially be subject to the the NPRM regarding 8 CFR 208.15(a)(1) and bar, regardless of whether the alien was placed in 1208.15(a)(1). by ‘‘intervening residence in a third MPP upon arrival in the United States.

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did not include such a requirement, benefit or privilege. That regulation then petitioner’s asylum claim . . . are and, as a result, the Departments have states that, if ‘‘the evidence indicates peculiarly within the petitioner’s chosen to interpret this ambiguous that one or more of the grounds for grasp.’’ Angov, 788 F.3d at 901. To the statutory language as not requiring the mandatory denial’’ of relief may apply, extent that commenters asserted that third country to provide the alien with the alien has the burden of proving that circuit case law conflicts with the rights comparable to that of citizens. See such grounds do not apply. 8 CFR Departments’ rule, such conflicts would Matter of R–A–, 24 I&N Dec. at 631 1240.8(d). The existing regulation is warrant re-evaluation in appropriate (explaining presumption that Congress thus clear that, if the evidence indicates cases by the circuits under well- left statutory ambiguity for the agencies that the firm resettlement bar may established principles. See Brand X, 545 to resolve (citing Brand X, 545 U.S. at apply, then an applicant has the burden U.S. at 982. Further, as noted in the 982)). of proving that it does not. Although the NPRM, 85 FR at 36286, the rule The third ground captures aliens who evidence in the record must itself overrules prior BIA decisions that are maintain, or maintained and then later support the applicability of a bar, the inconsistent, in accordance with well- renounced, citizenship in a third regulations do not specify who must established principles. See Encino country and were present in that introduce that evidence, and relevant Motorcars, LLC, 136 S. Ct. at 2125 country after fleeing their home country. evidence may come from either party. (‘‘Agencies are free to change their By possessing citizenship in a third Moreover, 8 CFR 1240.8(d) does not existing policies as long as they provide country and being physically present in specify who may raise an issue of a reasoned explanation for the change.’’ that country, the alien has established eligibility, only that the issue may be (citing Brand X, 545 U.S. at 981–82)). that he or she has the ability to live with raised when the evidence indicates that In response to one commenter’s full citizenship rights in a third country, a ground should apply. Because it is concerns, the burden of proof provision negating his or her need to apply for illogical to expect an alien applying for does not allow DHS to make the final asylum in the United States. In response asylum to raise the issue that he or she determination on whether the firm to a commenter’s concerns about the is barred from receiving asylum, the rule resettlement bar applies in EOIR timing of the alien’s presence in the appropriately acknowledges the reality proceedings; that authority continues to third country, the Departments clarify that either DHS or the immigration reside with DOJ for aliens whose asylum that the physical presence in the third judge may raise the issue based on the applications are referred for review by country must occur after the alien leaves evidence, regardless of who submitted an immigration judge. See 8 CFR the home country where the alleged the evidence. 208.14(c)(1), 1003.10(b), 1240.1(a)(1)(ii). persecution occurred or where the well- In response to concerns about founded fear of persecution would Similarly, although the immigration imputing parents’ firm resettlement to occur and before arriving in the United judge must determine whether the their minor children, the Departments States. evidence indicates that the firm note that the BIA has imputed parental Regarding commenters’ concerns resettlement bar may apply—and, thus, attributes to children under other INA about the burden of proof, the whether the alien bears the burden of provisions on multiple occasions. See, Departments note that the existing proving that it does not apply—that e.g., Holder, 566 U.S. at 595–96 (2012) burden framework outlined by the BIA determination is simply an evidentiary (describing various provisions of the Act is, at the least, not required by statute one and does not place any burden on in which parental attributes are imputed and appears to be in significant tension DHS. As noted, evidence that ‘‘indicates to children). Moreover, as noted in the with existing regulations.75 The burden that one or more of the grounds for NPRM, 85 FR at 36286, although the associated with the firm resettlement mandatory denial of the application for Departments have not previously bar as applied in removal proceedings is relief may apply [e.g., the firm established a settled policy regarding clarified in the existing language of 8 resettlement bar],’’ 8 CFR 1240.8(d), the imputation of the firm resettlement CFR 1240.8(d), which provides that the may be in the record based upon of parents to a child, the imputation in respondent has the burden of submissions made by either party; the this rule is consistent with both case establishing eligibility for any requested regulation requires only that evidence law and recognition of the practical be in the record, not that it be submitted reality that a child generally cannot 75 The Board’s framework also contains internal by DHS. Put more simply, the form a legal intent to remain in one tension that has resulted in confusion on this point. regulations do not place an independent place. See, e.g., Matter of Ng, 12 I&N In Matter of A–G–G–, the Board indicated that DHS burden on DHS to establish a prima Dec. 411, 412 (Reg’l Comm’r 1967) (firm bears the burden of making a prima facie showing that an offer for firm resettlement exists and will facie case. This conclusion is resettlement of father is imputed to a typically do so through the submission of underscored by other regulations that, child who resided with his resettled documentary evidence. Matter of A–G–G–, 25 I&N in contrast, specify when DHS is family); see also Vang v. INS, 146 F.3d Dec. at 501 (‘‘DHS should first secure and produce required to assume an evidentiary 1114, 1116–17 (9th Cir. 1998) (‘‘We direct evidence of governmental documents indicating an alien’s ability to stay in a country burden. See, e.g., 8 CFR 208.13(b)(1)(ii) follow the same principle in indefinitely.’’). It then went on to say, however, that (‘‘Burden of proof. In cases in which an determining whether a minor has firmly prima facie evidence may already be part of the applicant has demonstrated past resettled in another country, i.e., we record as evidence, including testimony, which is persecution under paragraph (b)(1) of look to whether the minor’s parents typically offered by a respondent, not DHS. Id. at 502 n.17. Consequently, immigration judges may this section, [DHS] shall bear the burden have firmly resettled in a foreign become confused about how to apply the firm of establishing by a preponderance of country before coming to the United resettlement bar in cases in which the evidence of the evidence the requirements of States, and then derivatively attribute record submitted by a respondent, including the paragraphs (b)(1)(i)(A) or (B) of this the parents’ status to the minor.’’). respondent’s testimony, indicates that the bar may Here, it is reasonable to assume that apply but in which DHS has not affirmatively section.’’). Placing a prima facie burden produced its own evidence of firm resettlement. on DHS would be contrary to the minor children who are traveling with This rule resolves that tension, reaffirms that relevant regulatory scheme and would their parents would remain with their immigration judges should follow the requirements unnecessarily tax the agency’s limited parents in any third country and, of 8 CFR 1240.8 as appropriate, and reiterates that therefore, should also be subject to the evidence in the record may raise the applicability resources without any statutory or of 8 CFR 1240.8 regardless of who submitted the regulatory justification, especially when firm resettlement bar. Moreover, the rule evidence. ‘‘[t]he specific facts supporting a provides an exception when the alien

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child can establish that he or she could processing-and-security-screening, time however, while the title I provision, 8 not have derived any permanent legal spent in a third country or otherwise CFR 244.4(b), cites the correct statutory immigration status or any non- awaiting overseas resettlement may not provision, INA 208(b)(2)(A)(vi), 8 U.S.C. permanent but indefinitely renewable necessarily indicate that an alien was 1158(b)(2)(A)(vi), the title V provision, 8 temporary legal immigration status firmly resettled in the country hosting CFR 1244.4(b), maintains an outdated (such as asylee, refugee, or similar such populations. reference to an incorrect statutory status) from his or her parent.76 See 85 Further, as a program explicitly provision. The final rule corrects that FR at 36294; 8 CFR 208.15(b), addressing persons in foreign outdated reference. 1208.15(b). countries—rather than a form of relief The Departments acknowledge available to aliens who arrive at or are 4.9. ‘‘Rogue Officials’’/‘‘Color of Law’’ comments noting that the NPRM altered inside the United States—the USRAP Comment: As an initial matter, the definition of ‘‘firm resettlement’’ implicates issues of foreign relations commenters asserted that the terms applicable to asylum applicants, but did and diplomacy in ways different than ‘‘color of law’’ and ‘‘official acting in his not alter the definition applicable to the asylum program. Additionally, or her official capacity’’ are not refugee admission applicants, which is although the current regulatory ambiguous and therefore are not open to a distinction the Departments noted in definitions of ‘‘firm resettlement’’ are agency interpretation. Commenters the NPRM. 85 FR at 36285 n.40. The similar, compare 8 CFR 207.1(b), with 8 asserted that the rule seeks to codify the Departments did not propose to change CFR 208.15 and 1208.15, they are not BIA’s decision in Matter of O–F–A–S–, 8 CFR 207.1(b) in the NPRM, see id., identical. Rather, the definition 27 I&N Dec. 709 (BIA 2019), vacated by and they do not believe such a change applicable to refugee admission 28 I&N Dec. 35, but that the standard set is warranted in this final rule, applicants requires that the alien out in Matter of O–F–A–S– is an notwithstanding commenters’ concerns entered the country of putative impossible burden. Specifically, regarding the two definitions. resettlement ‘‘as a consequence of his or commenters averred that ‘‘if an official Although the statutory provisions her flight from persecution,’’ 8 CFR claims to be acting in an official applying the firm resettlement bar in the 207.1(b), whereas the definition capacity, is wearing an official uniform, refugee and asylum contexts are applicable to asylum applicants or otherwise makes it known to the virtually identical, ‘‘[a] given term in the indicates that entry into a country that applicant that [he or she is] a same statute may take on distinct was a necessary consequence of flight government official, a CAT applicant characters from association with distinct from persecution is one element of a would have no reason to know whether statutory objects calling for different potential exception to the general the official is acting lawfully or as a implementation strategies.’’ Envtl. Def. definition of ‘‘firm resettlement.’’ In ‘rogue’ official.’’ Commenters argued v. Duke Energy Corp., 549 U.S. 561, 574 other words, existing regulations that to meet his or her burden, an (2007). The United States Refugee already recognize distinctions in the applicant would have to obtain detailed Admissions Program (‘‘USRAP’’) and definitions applicable to the two information from a government official the asylum system serve distinct programs. who has tortured or threatened him or missions and populations and, thus, In short, although the Departments her in order to establish that the actor warrant different approaches. The acknowledge commenters’ concerns was not acting in a rogue capacity. asylum statute is not designed ‘‘to about the two different definitions, they Commenters also argued that the provide [applicants] with a broader do not believe changes to 8 CFR 207.1(b) phrase ‘‘under color of law’’ calls for a choice of safe homelands, but rather, to are warranted at the present time. more nuanced determination than the protect [refugees] with nowhere else to Nevertheless, the Departments do analysis required by the proposed turn.’’ Matter of B–R–, 26 I&N Dec. at expect to study the issue closely and, if regulation or the BIA’s decision in 122 (quotation marks omitted). In appropriate, may propose changes at a Matter of O–F–A–S– would indicate. contrast, the USRAP has long focused future date. Quoting Screws v. United States, 325 on resolving protracted refugee Finally, the Departments are noting U.S. 91, 111 (1945), commenters stated situations and providing relief to two additional changes that the final that ‘‘[i]t is clear that under ‘color’ of refugees who have not been able to find rule makes regarding the issue of firm law means under ‘pretense’ of law a durable solution to their need for resettlement. First, consistent with the .... If, as suggested, the statute was protection in the country of first flight. Departments’ understanding that time designed to embrace only action which Moreover, due to the lengthy referral, spent in Mexico solely as a direct result the State in fact authorized, the words vetting, and application process in the of being returned to Mexico pursuant to ‘under color of any law’ were hardly apt refugee resettlement program, see section 235(b)(2)(C) of the Act or of words to express the idea.’’ Following generally USCIS, Refugee Processing being subject to metering would not be this analysis, commenters asserted that and Security Screening (June 3, 2020), counted for purposes of that specific any proposed rule must emphasize that https://www.uscis.gov/humanitarian/ element of the firm resettlement bar, acting ‘‘under color of law’’ does not refugees-and-asylum/refugees/refugee- that point is being clarified explicitly in require the government official to be on this final rule. Second, EOIR is making duty, following orders, or to be acting 76 The Department’s experience in administering a conforming change to 8 CFR 1244.4(b) on a matter of official government the firm resettlement bar indicates that cases in to align it with the both the appropriate business. which a parent’s firm resettlement would not be imputed to a minor child would be rare. Even in statutory citation and the corresponding Commenters similarly claimed that those rare cases, however, the Departments’ use of language in 8 CFR 244.4(b). Aliens the proposed definition of ‘‘rogue child-appropriate procedures, as discussed described in INA 208(b)(2)(A), 8 U.S.C. official’’ is contrary to Federal and state elsewhere in the rule, which take into account age, 1158(b)(2)(A), including those subject to jurisprudence because the proposed rule stage of language development, background, and level of sophistication, would assist the child in the firm resettlement bar contained in dismisses and invalidates the entire ensuring that the child’s claim is appropriately INA 208(b)(2)(A)(vi), 8 U.S.C. concept of ‘‘color of law’’ as being considered. See, e.g., USCIS, Interviewing 1158(b)(2)(A)(vi), are ineligible for TPS. synonymous with ‘‘acting in his or her Procedures for Minor Applicants (Aug. 6, 2020), That statutory ineligibility ground is official capacity.’’ Commenters asserted https://www.uscis.gov/humanitarian/refugees-and- asylum/asylum/minor-children-applying-for- incorporated into regulations in both that the Supreme Court views the terms asylum-by-themselves. chapter I and chapter V of title 8; as interchangeable because the

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‘‘traditional definition of acting under officials,’’ as such evidence universal standard.’’ Further, color of state law requires that the demonstrates that the foreign state commenters recommended codifying defendant . . . have exercised power cannot or will not protect the applicant court decisions that have found ‘possessed by virtue of state law and from torture. Moreover, the commenter government acquiescence even where made possible only because the asserted that it does not matter that parts of government have taken wrongdoer is clothed with the authority some countries cannot control large preventive measures. See, e.g., of state law.’ ’’ West v. Atkins, 487 U.S. numbers of rogue officials. See, e.g., Rodriguez-Molinero v. Lynch, 808 F.3d 42, 49 (1988) (quoting United States v. Mendoza-Sanchez v. Lynch, 808 F.3d 1134, 1139 (7th Cir. 2015) (noting it is Classic, 313 U.S. 299, 326 (1941)). 1182, 1185 (7th Cir. 2015) (‘‘It’s simply not required to find the entire Mexican Commenters explained that, in not enough to bar removal if the government complicit); De La Rosa v. alignment with the Supreme Court’s [Mexican] government may be trying, Holder, 598 F.3d 103, 110 (2d Cir. interpretation, some circuits have but without much success, to prevent 2010). defined ‘‘color of law’’ to mean the police from torturing citizens at the In addition, some commenters argued ‘‘misuse of power, possessed by virtue behest of drug gangs.’’). Commenters that the standard to demonstrate of state law and made possible only averred that the correct inquiry in CAT acquiescence is unreasonable because because the wrongdoer is clothed with claims is whether a government official applicants would be required to the authority of state law.’’ See committed torture, not whether the demonstrate the legal duties of a Iruegas-Valdez v. Yates, 846 F.3d 806, applicant can demonstrate that the government official who failed to act 812–13 (5th Cir. 2017) (finding that the official was not acting in a ‘‘rogue and also demonstrate whether the public official in question need not be capacity.’’ official was charged with preventing high-level or follow ‘‘an officially Commenters stated that the proposed those actions but failed to act. sanctioned state action’’); Garcia v. changes to the ‘‘rogue official’’ standard Commenters asserted this would be an Holder, 756 F.3d 885, 891–92 (5th Cir. also conflict with the standard impossible standard to meet. 2014); Ramirez-Peyro v. Holder, 574 established by the Attorney General in Commenters also contended that the F.3d 893, 900–01 (8th Cir. 2009). Citing Matter of O–F–A–S–, 28 I&N Dec. 35 proposed rule’s reliance on the Model the Eighth Circuit, commenters asserted (A.G. 2020), which was issued Penal Code is irrelevant to what might that this means that ‘‘the focus is subsequent to the proposed rule’s occur in a foreign country. whether the official uses their position publication. For example, at least one Commenters argued that the proposed of authority to further their actions, commenter stated that the Attorney rule’s amendments to 8 CFR even if for ‘personal’ motives.’’ General ‘‘rejected’’ the use of the term 208.18(a)(1), (7) and 1208.18(a)(1), (7) Ramirez-Peyro, 574 F.3d at 900–01. ‘‘rogue official,’’ while the proposed will prevent many individuals from Commenters further asserted that the rule would codify the use of the same meeting the burden to establish color-of-law analysis should be one of term. Commenters further stated that the eligibility for protection under the ‘‘nexus’’—i.e., ‘‘does the conduct relate Attorney General’s decision in Matter of regulations issued pursuant to the to the offender’s official duties?’’ O–F–A–S– created difficulty in legislation implementing the CAT. Commenters further quoted Ramirez- providing comment on the proposed Commenters were concerned that an Peyro, 574 F.3d at 901, stating that ‘‘it rule because it changed the state of the individual would be unable to is not contrary to the purposes of the law that the rule would affect.77 determine that an officer is a rogue [Convention] and the under-color-of-law Commenters argued that exempting officer when ‘‘every discernable fact standard to hold Mexico responsible for public officials from the concept of (including but not limited to uniforms, the acts of its officials, including low- acquiescence in instances in which the weapons, badges, police cars, etc.) level ones, even when those officials act public official ‘‘recklessly disregarded indicates the officer is legitimate.’’ in contravention of the nation’s will and the truth, or negligently failed to Therefore, commenters asserted, despite the fact that the actions may inquire’’ seems indistinguishable from requiring this kind of detailed take place in circumstances where the ‘‘willful blindness,’’ a term recognized information would be unreasonable or officials should be acting on behalf of by the Second, Third, Fourth, Fifth, impossible. Commenters similarly the state in another, legitimate, way.’’ Sixth, Seventh, Eighth, Ninth, and asserted that the requirement that an Quoting Khouzam v. Ashcroft, 361 F.3d Tenth Circuits in the CAT analysis applicant demonstrate that the 161, 171 (2d Cir. 2004), commenters context. See, e.g., Khouzam, 361 F.3d at government official who has inflicted asserted that, ‘‘when it is a public 170–71; Myrie v. Att’y Gen. of U.S., 855 torture did so under color of law and is official who inflicts severe pain or F.3d 509, 517 (3rd Cir. 2017), Romero- not a rogue official ignores the actual suffering, it is only in exceptional cases Donado v. Sessions, 720 Fed. App’x circumstances under which people flee. that we can expect to be able to 693, 698 (4th Cir. 2018); Iruegas-Valdez Commenters also expressed concern conclude that the acts do not constitute v. Yates, 846 F.3d 806, 812 (5th Cir. that individuals who were tortured torture by reason of the official acting 2017); Torres v. Sessions, 728 Fed. would have no recourse because they for purely private reasons.’’ Commenters App’x 584, 588 (6th Cir. 2018); Lozano- would be unable to report the rogue also cited a recent decision from the Zuniga v. Lynch, 832 F.3d 822, 831 (7th official to other potentially rogue Ninth Circuit Court of Appeals, in Cir. 2016); Fuentes-Erazo v. Sessions, officials. For example, commenters which the court held that even a rogue 848 F.3d 847, 852 (8th Cir. 2017); Zheng stated that, in many countries (such as official is still a public official for v. Ashcroft, 332 F.3d 1186, 1194–95 (9th the Democratic Republic of the Congo), purposes of the CAT. See Xochihua- Cir. 2003); Medina-Velasquez v. members of the police or military are Jaimes v. Barr, 962 F.3d 1175, 1184 (9th Sessions, 680 Fed. App’x 744, 750 (10th intentionally organized into Cir. 2020) (‘‘We rejected BIA’s ‘rogue Cir. 2017). Commenters asserted that the paramilitary groups so that the official’ exception as inconsistent with rule should instead codify this ‘‘near- government can deny responsibility for Madrigal [, 716 F.3d at 506.]’’). human rights violations. Commenters Ultimately, commenters argued that 77 To the extent commenters’ concerns with the asserted that, in such circumstances, the CAT requires protection for those ability to comment may relate to the period of time individuals who are subjected to harm provided for comment, the Departments responses that have suffered any act of torture at are set forth below in Section II.C.6.3 of this or in danger of such harm would face an the hands of state officials, even ‘‘rogue preamble. insurmountable burden of proof.

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Commenters asserted that it is extremely 574 F.3d at 900). However, at the same performed ‘‘under color of law.’’ Id. rare for a government to openly time, some Federal courts have viewed This rule amends the current regulatory acknowledge that it condones torture. immigration judges as applying an language to clarify that the conduct Rather, when evidence of torture occurs, amorphous, different concept of ‘‘rogue supporting a CAT claim must be carried the government will claim the official,’’ which has not been accepted out under color of law, which is fully perpetrator was a ‘‘bad apple’’ who by circuit courts. Id. (citing Federal consistent with the Attorney General’s acted on his or her own. Commenters court of appeals decisions reviewing decision. See 8 CFR 208.18(a)(1), asserted that this rule would accept the immigration court decisions applying an 1208.18(a)(1) (expressly using the ‘‘bad apple’’ excuse on its face, alleged ‘‘rogue official’’ analysis). phrase ‘‘under color of law’’).78 preventing torture victims from As the NPRM made clear, there is not Therefore, the regulatory text articulates receiving protection. Similarly, a ‘‘rogue official’’ exception per se for that the test for determining whether an commenters asserted that most CAT protection. 85 FR at 36286. Rather, individual acted in an official capacity governments would not publicly admit ‘‘rogue official’’ is simply a shorthand is whether the official acted under color that they torture their citizens and that, label for an official who is not acting of law. See 8 CFR 208.18(a)(1), without such admissions, it would be under color of law, and the actions of 1208.18(a)(1). difficult for victims of torture to prove such an official are not a basis for CAT This amendment aligns the regulatory that the injury was caused by a protection because the individual is not language with congressional intent and government official acting in an official acting in an official capacity. The circuit case law finding that ‘‘in an capacity as opposed to on the official’s Attorney General confirmed this view official capacity’’ means ‘‘under color of private initiative. Commenters also that a ‘‘rogue official’’ is one who is not law.’’ The Senate, in recommending that asserted that the proposed changes acting under color of law. Matter of O– the United States ratify the CAT, appear specifically to restrict typical F–A–S–, 28 I&N Dec. at 38 (‘‘To the explicitly stated that ‘‘the Convention claims from Central America, where extent the Board used ‘rogue official’ as applies only to torture that occurs in the individuals are ‘‘tortured at the hands of shorthand for someone not acting in an context of governmental authority, non-state actors such as gangs and official capacity, it accurately stated the excluding torture that occurs as a cartels and where government actors are law. By definition, the actions of such wholly private act or, in terms more frequently complicit in these actions.’’ officials would not form the basis for a familiar in U.S. law, it applies to torture Finally, one commenter asserted that, if cognizable claim under the CAT.’’). inflicted ‘under color of law.’ ’’ S. Exec. an agency is going to demand such a Thus, there is no longer any confusion Rep. No. 101–30, at 14 (1990). Further, high burden to establish torture, the regarding the definition of a ‘‘rogue as stated by the Attorney General in agency should be the one to take on the official,’’ and, consistent with the rule, Matter of O–F–A–S–, every Federal court burden of demonstrating the difference such an official is one who is not acting of appeals to consider the question has because the agency has more capacity to under color of law. held that action ‘‘in an official capacity’’ Nevertheless, as the Attorney General obtain the required information than the means action ‘‘under color of law.’’ 28 also noted, ‘‘continued use of the ‘rogue individual requesting the relief. I&N Dec. at 37 (citing Garcia, 756 F.3d official’ language by the immigration at 891; Belfast, 611 F.3d at 808–09; Response: The Departments disagree courts going forward risks confusion Ramirez-Peyro, 574 F.3d at 900); see with commenters’ assertions that the . . . because ‘rogue official’ has been also Ali v. Reno, 237 F.3d 591, 597 (6th term ‘‘acting in an official capacity’’ is interpreted to have multiple meanings.’’ Cir. 2001) (adopting the ‘‘under color of unambiguous and thus not subject to Id. Accordingly, the Departments are law’’ standard in an opinion preceding agency interpretation, as multiple removing that term from the final rule Matter of Y–L–, 24 I&N Dec. 151). decisions from the BIA, the Attorney to avoid any further confusion. Its The Senate’s understanding of General, and circuit courts attest. As removal, however, does not result in ‘‘acquiescence’’ for purposes of the CAT demonstrated most recently by the any substantive change to the rule. was that a finding of acquiescence Attorney General’s decision in Matter of Regardless of whether an official who is requires a showing that the public O–F–A–S–, 28 I&N Dec. at 36–37, the not acting in an official capacity is official was aware of the act and that the term ‘‘acting in an official capacity’’ is described as a ‘‘rogue official,’’ the public official had a legal duty to a term that has been subject to different actions of such an official are not intervene to prevent the act but failed to interpretations since it was performed under color of law and, thus, do so. See S. Exec. Rep. No. 101–30, at implemented in the regulations. See do not form the basis of a cognizable 14 (‘‘In addition, in our view, a public Regulations Concerning the Convention claim under the CAT. Against Torture, 64 FR 8490 (Feb. 19, Regarding commenters’ concerns 78 In clarifying this definition of a public official 1999). As explained by the Attorney about the Attorney General’s decision in as one acting under color of law, the rule also General subsequent to the NPRM, Matter of O–F–A–S–, the Attorney makes clear that, for purposes of the CAT regulations, pain or suffering inflicted by, or at the whether an individual acted in an General determined that it was instigation of or with the consent or acquiescence official capacity has been the subject of necessary to provide a clarification of of, a public official is not torture unless the act is multiple inaccurate or imprecise the ambiguous term ‘‘acting in an done while the official is ‘‘acting in his or her formulations. Matter of O–F–A–S–, 28 official capacity’’ without waiting for official capacity. 85 FR at 36287; 8 CFR 208.18(a)(1) and 1208.18(a)(1). The Departments recognize that I&N Dec. at 36–37. On the one hand, the Departments’ NPRM to be finalized. this change departs from the language considered then-Attorney General Ashcroft first That he issued his decision does not in Barajas-Romero v. Lynch, 846 F.3d 351, 362–63 articulated that the official capacity prevent the Departments from codifying (9th Cir. 2017), which allowed for the consideration requirement means torture ‘‘inflicted that definition subsequently. of a CAT claim even when the alleged torture was Moreover, the Departments disagree carried out by a public official not acting in an under color of law.’’ Id. at 36. official capacity. Nevertheless, the Departments Subsequently, every Federal court of that the Attorney General’s decision in have provided reasoned explanations for this appeals to consider the questions has Matter of O–F–A–S–, 28 I&N Dec. at 35, regulatory change and, thus, can implement that read the standard in the same manner. conflicts with the language of this rule. change in accordance with well-established In Matter of O–F–A–S–, the Attorney principles. See Encino Motorcars, LLC, 136 S. Ct. at Id. at 37 (citing Garcia, 756 F.3d at 891; 2125 (‘‘Agencies are free to change their existing United States v. Belfast, 611 F.3d 783, General explained that ‘‘acting in an policies as long as they provide a reasoned 808–09 (11th Cir. 2010); Ramirez-Peyro, official capacity’’ means actions explanation for the change.’’).

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official may be deemed to ‘acquiesce’ in further aligns with subsequent unavailable. See 8 CFR 1208.16(c)(2) a private act of torture only if the act is understandings that reduced the (‘‘The testimony of the applicant, if performed with his knowledge and the requirement from knowledge to mere credible, may be sufficient to sustain the public official has a legal duty to awareness. See Zheng, 332 F.3d at 1193 burden of proof [for a claim for intervene to prevent such activity.’’). As (‘‘The [Senate Committee on Foreign protection under the CAT] without noted in the NPRM, however, the term Relations] stated that the purpose of corroboration.’’). requiring awareness, and not ‘‘awareness’’ has led to some confusion. 5. Information Disclosure See 85 FR at 36287 (citing Scarlett v. knowledge, ‘is to make it clear that both Barr, 957 F.3d 316 (2d Cir. 2020)). actual knowledge and ‘willful Comment: Commenters raised Commenters asserted that the blindness’ fall within the definition of concerns that the rule’s confidentiality Departments, rather than creating a new the term ‘acquiescence.’ ’’). provisions violate asylum seekers’ right definition for awareness, should instead Regarding commenters’ assertions that to privacy in their asylum proceedings, codify the ‘‘willful blindness’’ standard the proposed rule would create a burden are ‘‘expansive and highly concerning,’’ as articulated by the circuit courts of that would be impossible for an and would put asylum seekers at ‘‘grave appeals. But the final rule does just that: applicant to meet, the Departments note risk of harm.’’ Commenters were As noted in the NPRM, the Departments that, currently, applicants must still particularly concerned about cases proposed to clarify that, in accordance demonstrate a legal duty and that this involving gender-based violence. with decisions from several courts of requirement does not change with this Commenters explained that broad appeals and the BIA, ‘‘ ‘awareness’—as final rule. Even when applying the disclosure language would deter asylum used in the CAT ‘acquiescence’ ‘‘willful blindness’’ standard articulated seekers from pursuing relief or revealing definition—requires a finding of either by various circuit courts of appeals, the details of their alleged persecution for actual knowledge or willful blindness.’’ applicant must demonstrate a legal duty fear that their persecutor would learn 85 FR at 36287; see also 8 CFR and that the government official about their asylum claim and subject 208.18(a)(1), 1208.18(a)(1). The breached that legal duty. See, e.g., them or their families to further harm. Departments, however, seeking to avoid Khouzam, 361 F.3d at 171 (‘‘From all of This fear, according to commenters, further ambiguity, further define the this we discern a clear expression of would be compounded by the fact that term ‘‘willful blindness’’ to mean that Congressional purpose. In terms of state persecutors could potentially learn such the public official or other person acting action, torture requires only that information online without needing to be physically present in the United in an official capacity was ‘‘aware of a government officials know of or remain States. For example, commenters were high probability of activity constituting willfully blind to an act and thereafter concerned that disclosures in Federal torture and deliberately avoided breach their legal responsibility to litigation could be accessed by anyone learning the truth.’’ 85 FR at 36287. The prevent it.’’). Regarding commenters’ concerns because the litigation is public record. Departments further clarify that it is not about the burden applicants would have One commenter noted that the enough that such a public official acting in establishing that an official was not exception for state or Federal mandatory in an official capacity or other person a rogue official, the Departments reporting requirements at 8 CFR acting in an official capacity was reiterate that this rule codifies the 208.6(d)(1)(iii) and 1208.6(d)(1)(iii) is ‘‘mistaken, recklessly disregarded the analysis that, for an individual to be ‘‘completely open ended and provides truth, or negligently failed to inquire.’’ acting in an official capacity, he or she no safeguards against publication’’ to Id. must be acting under color of law. As the public. Another commenter raised As explained in the NPRM, the stated above, this standard aligns with concerns about the exception allowing Departments’ definition of the standard required by the Attorney for an asylum application to be filed in ‘‘acquiescence’’ aligns with General in Matter of O–F–A–S–, as well an unrelated case as evidence of fraud. congressional intent to require both an as the various circuit courts of appeals The commenter explained that, in actus reus and a mens rea. Id. The to have considered the issue. Therefore, practice, this would mean that Senate, during ratification of the CAT, the burden continues to require that an information from one applicant’s case included in its list of understandings applicant demonstrate that an would be accessible to another the two elements required for a finding individual acted under color of law to applicant, potentially putting the of acquiescence: Actus reus and mens demonstrate eligibility. The final rule asylum applicant in danger. rea. See Convention Against Torture and does not raise or change the burden on Response: The Departments are fully Other Cruel, Inhuman, or Degrading the applicant, but merely provides cognizant of the need to protect asylum Treatment or Punishment, Treaty Doc. clarity on the analysis. Moreover, the seekers, as well as their relatives and 100–20: Hearing Before the S. Comm. on NPRM lists the main issues to consider associates in their home countries, by Foreign Relations, S. Hrg. No. 101–718, in determining whether an official was preventing the disclosure of information 101st Cong., 2d Sess. 14 (1990) (‘‘[T]o be acting under the color of law: Whether contained in or pertaining to their culpable under the [CAT] . . . the government connections provided the applications. There are specific public official must have had prior officer access to the victim, or to his situations, however, in which the awareness of [the activity constituting whereabouts or other identifying disclosure of relevant information is torture] and must have breached his information; whether the officer was on necessary to protect the integrity of the legal responsibility to intervene to duty and in uniform at the time of his system, to ensure that those engaged in prevent the activity.’’ (statement of Mark conduct; and whether the officer fraud do not obtain benefits to which Richard, Deputy Assist Att’y Gen., threatened to retaliate through official they are not entitled, and to ensure that Criminal Division, Department of channels if the victim reported his unlawful behavior is not inadvertently Justice)); U.S. Senate Resolution of conduct to authorities. 85 FR at 36287. and needlessly protected. The existing Advice and Consent to Ratification of The Departments believe these issues confidentiality provisions do not the Convention Against Torture and would be known by the alien, who provide for an absolute bar on Other Cruel, Inhuman or Degrading could at least provide evidence in the disclosure, but even their exceptions Treatment or Punishment, 136 Cong. form of his or her personal testimony if may encourage fraud or criminal Rec. 36198 (1990). The definition other witnesses or documents were behavior. See Angov, 788 F.3d at 901

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(‘‘This points to an unfortunate reality Regarding commenters’ concerns with 207(c)(1), 8 U.S.C. 1157(c)(1), and 8 CFR that makes immigration cases so the exception to allow disclosure as part 207 are subject to the same different from all other American required by any state or Federal information disclosure provisions as adjudications: Fraud, forgery and mandatory reporting requirements, the similar applications for asylum, fabrication are so common—and so Departments note that the exception withholding of removal under the INA, difficult to prove—that they are simply makes clear that government and protection under the regulations routinely tolerated.’’). Ultimately, there officials must abide by such laws. This implementing the CAT. The is no utility in protecting a false or provision is designed to prevent any Departments already apply the fraudulent asylum claim, in restricting inconsistencies and ensure that disclosure provisions to such access to evidence of child abuse, or in government officials comply with any applications as a matter of policy and restricting access to evidence that may mandatory reporting requirements. see no basis to treat such applications prevent a crime, and the rule properly Accordingly, despite commenters’ differently than those for protection calibrates those concerns as concerns with the breadth of this filed by aliens already in or arriving in outweighing the blunt shield of provision, the Departments disagree that the United States. confidentiality for an assortment of any limiting language would be 6. Violates Domestic or International unlawful behaviors that exists under the appropriate. Law current regulations. The Departments have considered Here, the Departments have commenters’ concerns that an 6.1. Violates Immigration and determined that additional, limited applicant’s application will be Nationality Act submitted in another proceeding and disclosure exceptions are necessary to Comment: Commenters expressed a thereby be made available to the other protect the integrity of proceedings, to general belief that the rule violates the ensure that other types of criminal applicant, though they note that existing exceptions already cover ‘‘[t]he INA, such as by rendering it activity are not shielded by the ‘‘impossible’’ or ‘‘near impossible’’ to confidentiality provisions, and to ensure adjudication of asylum applications’’ and ‘‘[a]ny United States Government obtain refugee status. that the government can properly Multiple commenters stated that it defend itself in relevant proceedings. By investigation concerning any . . . civil matter,’’ which, arguably, already appears the proposed rule is an their text, these additional disclosure ‘‘unreasonable interpretation’’ of exceptions are limited to specific encompass the use of applications across proceedings. 8 CFR 208.6(c)(1)(i), sections 208 and 240 of the INA, 8 circumstances in which the disclosure (v), 1208.6(c)(1)(i), (v). The Departments U.S.C. 1158 and 1229a, because two of such information is necessary and the are maintaining the exceptions in the members of Congress have issued a need for the disclosure outweighs NPRM to ensure clarity on this point statement in opposition to the rule. countervailing concerns. This rule and to ensure that existing regulations Response: This rule implements includes clarifying exceptions explicitly are not inappropriately used to shield numerous changes to the Departments’ allowing release of information as it unlawful behavior. Because cases regulations regarding asylum and relates to any immigration proceeding involving asylum fraud are related procedures, including under the INA or legal action relating to ‘‘distressingly common,’’ Angov, 788 at amendments to the expedited removal the alien’s immigration or custody 902, the need to root out fraudulent and credible fear screening process, status. This will ensure that the asylum claims greatly outweighs the changes to the standards for frivolous government can provide a full and concerns raised by commenters. asylum application findings, a provision accurate record in litigating such Moreover, legitimate asylum seekers to allow immigration judges to pretermit proceedings. generally should be unaffected by this applications in certain situations, The rule also includes provisions for exception. Finally, the Departments codification of standards for protecting the integrity of proceedings reiterate that only ‘‘relevant and consideration during the review of and public safety. These include applicable’’ information is subject to applications for asylum and for provisions aimed at detecting fraud by disclosure under that exception; thus, statutory withholding of removal, and allowing the Departments to submit rather than an open-ended exception, amendments to the provisions regarding similar asylum applications in unrelated this exception ensures that only a information disclosure. Each of these proceedings; pursuing state or Federal limited amount of information is subject changes, as discussed with more criminal investigations, proceedings, or to disclosure under that exception. specificity elsewhere in Section II.C of prosecutions; and protecting against Finally, as noted above, the this preamble, is designed to better align child abuse. For example, the fraud Departments are making conforming the Departments’ regulations with the exception will allow the Departments to edits to 8 CFR 208.6(a) and (b) and 8 Act and congressional intent. As also consider potentially fraudulent similar CFR 1208.6(b) to make clear that the discussed, supra, the rule does not end applications or evidence in an disclosure provisions of 8 CFR 208.6 asylum or refugee procedures, nor does immigration proceeding in order to root and 1208.6 apply to applications for it make it impossible for aliens to obtain out non-meritorious claims, which will withholding of removal under the INA such statuses. To the contrary, by in turn allow the Departments to focus and for protection under the regulations providing clearer guidance to limited resources on adjudicating cases implementing the CAT, and not solely adjudicators and allowing them to more with a higher chance of being to asylum applications. That point is effectively consider all applications, the meritorious. See, e.g., Angov, 788 at already clear in 8 CFR 208.6(d) and rule should allow adjudicators to more 901–02 (‘‘[Immigration f]raud, forgery 1208.6(d), and the Departments see no efficiently reach meritorious claims. and fabrication are so common—and so reason not to conform the other The Departments disagree that the difficult to prove—that they are paragraphs in those sections for statements of certain members of routinely tolerated.... [I]f an alien consistency. Relatedly, the Departments Congress about their personal opinion does get caught lying or committing are also making edits to 8 CFR 208.6(a), regarding the rule are sufficient to fraud, nothing very bad happens to (b), (d), and (e) and 8 CFR 1208.6(b), (d), demonstrate that the rule is an him.... Consequently, immigration and (e) to make clear that applications ‘‘unreasonable interpretation’’ of the fraud is rampant.’’). for refugee admission pursuant to INA Act. Indeed, the statements of certain

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members of Congress in 2020 is not Response: The Departments disagree cases pending; to correct procedures clear evidence of the legislative intent that the promulgation of this rule is that were not working well, including behind the 1996 enactment of IIRIRA, arbitrary and capricious under the APA. procedures for the identification of which established the key statutory The APA requires agencies to engage in meritless or fraudulent claims; and to provisions related to this rule. ‘‘reasoned decisionmaking,’’ Michigan, provide a consistent approach for the 576 U.S. at 750, and directs that agency overall asylum adjudicatory framework 6.2. Violates Administrative Procedure actions be set aside if they are arbitrary in light of numerous—and often Act or capricious, 5 U.S.C. 706(2)(A). This, contradictory or confusing—decisions Comment: Commenters raised however, is a ‘‘narrow standard of from the Board and circuit courts concerns that the rule does not comply review’’ and ‘‘a court is not to substitute regarding multiple important terms that with the APA. Commenters alleged that its judgment for that of the agency,’’ Fox are not defined in the statute. the rule is arbitrary and capricious Television, 556 U.S. at 513 (quotation For example, the Departments under the APA because it does not offer marks omitted), but is instead to assess explained that the changes to use ‘‘reasoned analysis’’ for the proposed only whether the decision was ‘‘based asylum-and-withholding-only changes. Commenters explained that on a consideration of the relevant proceedings for positive credible fear ‘‘reasoned analysis’’ requires the factors and whether there has been a findings, to increase the credible fear Departments to display awareness that clear error of judgment,’’ Citizens to standard for withholding of removal and they are changing positions on a policy, Preserve Overton Park, Inc. v. Volpe, CAT protection claims, to apply certain to provide a legitimate rationale for 401 U.S. 402, 416 (1971). Arbitrary and bars and the internal relocation analysis departing from prior policy, and to capricious review is ‘‘highly deferential, in credible fear interviews, to pretermit identify the reasons for the change and presuming the agency action to be legally insufficient asylum applications, why the change is a better solution to valid.’’ Sacora v. Thomas, 628 F.3d and to expand the grounds for a the issue. 1059, 1068 (9th Cir. 2010). It is frivolous asylum finding are all In alleging this failure, commenters ‘‘reasonable for the [agency] to rely on intended to create a more streamlined argued that the Departments did not its experience’’ to arrive at its and efficient process for adjudicating analyze or rely on data or other conclusions, even if those conclusions asylum, withholding of removal, and evidence in formulating these changes. are not supported with ‘‘empirical CAT protection applications. See 85 FR Moreover, commenters also claimed that research.’’ Id. at 1069. Moreover, the at 36266–67 (explaining that asylum- the Departments did not consider agency need only articulate ‘‘satisfactory and-withholding-only proceedings will possible alternatives to the changes and explanation’’ for its decision, including ensure a ‘‘streamlined, efficient, and failed to consider important aspects of ‘‘a rational connection between the facts truly ‘expedited’ ’’ removal process); id. at 36277 (explaining that the the various changes, including the found and the choice made.’’ Motor pretermission of legally insufficient impacts on the applicants and their Vehicle Mfrs. Ass’n of U.S., Inc. v. State asylum applications will eliminate the communities. Commenters claimed that Farm Mut. Auto Ins. Co., 463 U.S. 29, need for a hearing); id. at 36273–76 this rule is nothing more than a pretext 43 (1983); see also Dep’t of Commerce (explaining that frivolous applications for enshrining anti-asylum seeker v. New York, 139 S. Ct. 2551, 2569 are a ‘‘costly detriment, resulting in sentiments, as evidenced by the thin or (2019) (‘‘We may not substitute our wasted resources and increased complete lack of justification for the judgment for that of the Secretary, but processing times,’’ and that the new various changes. instead must confine ourselves to grounds for a finding of frivolousness ensuring that he remained within the In addition, commenters claimed that will ‘‘ensure that meritorious claims are bounds of reasoned decisionmaking.’’ this rule overlaps with other recent adjudicated more efficiently’’ and will (citation and quotation marks omitted)). rules promulgated by the Departments, prevent ‘‘needless expense and delay’’); including rules involving asylum and Under this deferential standard, and id. at 36268–71 (explaining that raising adjusting fee amounts. Commenters contrary to commenters’ claims, the the credible fear standard for claimed that it is arbitrary and Departments have provided reasoned withholding and CAT applications will capricious for the Departments to ‘‘carve explanations for the changes in this rule allow the Departments to more up [their] regulatory activity to evade sufficient to rebut any APA-related ‘‘efficiently and promptly’’ distinguish comprehensive evaluation and concerns. The NPRM describes each between aliens whose claims are more comment.’’ For example, one provision in detail and provides an or less likely to ultimately be commenting organization stated that the explanation for each change. See 85 FR meritorious); id. at 36272 (explaining rule treats domestic violence differently at 36265–88. The Departments that applying certain eligibility bars in from another recent rule, in that the explained that these various changes credible fear interviews will help to other rule bars relief for persons who will, among other things, maintain a eliminate unnecessary removal delays have committed gender-based violence, streamlined and efficient adjudication in section 240 proceedings and while this rule bars relief from persons process for asylum, withholding of eliminate the ‘‘waste of adjudicatory who have survived gender-based removal, and CAT protection; provide resources currently expended in vain’’). violence. clarity in the adjudication of such Similarly, the Departments also One commenting organization stated claims; and protect the integrity of such explained in the NPRM that many of the that the Departments are implementing proceedings. Id. As noted in Section II.A changes are intended to provide clarity this rule to enhance their litigating of this preamble, the animating to adjudicators and the parties, positions before EOIR and the Federal principles of the NPRM were to provide including the addition of definitions courts, which the commenter alleged is clearer guidance to adjudicators and standards for terms such as arbitrary and capricious where ‘‘there is regarding a number of thorny issues that ‘‘particular social group,’’ ‘‘political no legitimate basis for the regulation have caused confusion and opinion,’’ ‘‘persecution,’’ ‘‘nexus,’’ and other than to enhance the litigating inconsistency and even bedeviled ‘‘internal relocation;’’ the delineation of position’’ of the Departments, circuit courts; to improve the efficiency discretionary factors in adjudicating particularly when the Departments are and integrity of the overall system in asylum applications; the addition of parties to the litigation. light of the overwhelming number of guidance on the meaning of

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‘‘acquiescence’’ and the circumstances applications that were previously benefit offsetting any costs to those in which officials are not acting under abandoned or withdrawn with prejudice applicants filing non-meritorious color of law in the CAT protection a negative discretionary factor would applications. Overall, as shown in the context; and the clarification of the use ‘‘minimize abuse of the system’’). NPRM and the final rule, the of precedent in credible fear review The Departments also disagree with Departments engaged in ‘‘reasoned proceedings. See 85 FR at 36278 commenters that the rule does not decision making’’ sufficient to mitigate (explaining that the rule’s definition of provide support for the specific grounds any APA concerns. ‘‘particular social group’’ will provide that would be insufficient to qualify as The Departments also disagree with ‘‘clearer guidance’’ to adjudicators a particular social group or to establish commenters’ claim that the Departments regarding whether an alleged group a nexus.79 The Departments provided purposefully separated their asylum- exists and, if so, whether the group is numerous citations to BIA and Federal related policy goals into separate cognizable); id. at 36278–79 (explaining court precedent that the Departments regulations in order to prevent the that the rule’s definition of ‘‘political relied on in deciding to add these public from being able to meaningfully opinion’’ will provide ‘‘additional specific grounds. See 85 FR at 36279 review and provide comment. The clarity for adjudicators’’); id. at 36280 (list of cases supporting the grounds that Departments reject any assertions that (explaining that the rule’s definition of generally will not qualify as a particular they are proposing multiple rules for ‘‘persecution’’ will ‘‘better clarify what social group); id. at 36281 (list of cases any sort of nefarious purpose. Each of does and does not constitute supporting the grounds that generally the Departments’ rules stand on its own, persecution’’); id. at 36281 (explaining will not establish nexus). includes an explanation of its basis and that the rule’s definition of ‘‘nexus’’ will In addition to the explicit purposes purpose, and allows for public provide ‘‘clearer guidance’’ for detailed in the NPRM, the Departments comment, as required by the APA. See adjudicators to ‘‘uniformly apply’’); id. also considered, contrary to Little Sisters of the Poor Saints Peter & at 36282 (explaining that the rule’s commenters’ claims, the effects that Paul Home v. Pennsylvania, 140 S. Ct. definition of ‘‘internal relocation’’ will such changes may have on applicants. 2367, 2386 (2020) (explaining that the help create a more ‘‘streamlined The Departments noted that the APA provides the ‘‘maximum presentation’’ to overcome the current proposed changes ‘‘are likely to result in procedural requirements’’ that an lack of ‘‘practical guidance’’); id. at fewer asylum grants annually.’’ 85 FR at agency must follow in order to 36283 (explaining that, for asylum 36289. Moreover, the Departments promulgate a rule). To the extent discretionary determinations, the recognized that any direct impacts commenters noted some overlap or joint Departments have not previously would fall on these applicants. Id. at impacts, however, the Departments provided general guidance in agency 36290. The Departments acknowledge regularly consider the existing legal regulations for factors to be considered that these impacts are viewed as framework when a specific rule is ‘‘harsh’’ or ‘‘severe’’ by commenters, but when determining whether an alien proposed or implemented. For example, the Departments also note, as discussed, merits asylum as a matter of discretion); with respect to the potential impacts of supra, that many of the commenters’ id. at 36286–87 (explaining that DHS fee changes, DHS conducts a overall assertions about the effects of guidance for CAT acquiescence and for biennial review of USCIS fees and this rule are unfounded or speculative.80 the circumstances in which an official is publishes a Fee Rule that impacts all In addition, the Departments made the not acting under color of law standards populations before USCIS. See, e.g., U.S. decision to include the various changes is meant to provide clarity because Citizenship and Immigration Services in this rule because, after weighing the Fee Schedule and Changes to Certain current regulations ‘‘do not provide costs and benefits, the Departments Other Immigration Benefit Request further guidance’’); id. at 36267 determined that the need to provide Requirements, 84 FR 62280, 62282 (explaining that the inclusion of additional clarity to adjudicators; to (Nov. 14, 2019) (explaining that, in language regarding the consideration of enhance adjudicatory efficiencies; and accordance with 31 U.S.C. 901–03, precedent in credible fear review to ensure the integrity of proceedings USCIS conducts ‘‘biennial reviews of proceedings is intended to provide a outweighed the potential costs to the non-statutory fees deposited into the ‘‘clear requirement’’). applicants, especially since the changes, [Immigration Examinations Fee The Departments also explained that particularly those rooted in existing law, Account]’’). It is natural that there many of the changes are intended to would naturally fall more on applicants would be some impact on aliens who protect the integrity of proceedings. See with non-meritorious claims. In fact, the intend to seek asylum, but any such 85 FR at 36288 (explaining the enhanced adjudicatory efficiencies change to those fees must be considered expansion of information disclosure is would be expected to allow adjudicators with respect to USCIS’s overall fee necessary to protect against ‘‘suspected to focus more expediently on structure. Thus, any such changes were fraud or improper duplication of meritorious claims, which would be a properly outside the scope of this rule. applications or claims’’); id. at 36283 Moreover, nothing in any rule proposed (explaining that the inclusion of a 79 For further discussion regarding the changes by the Departments, including the discretionary factor for use of fraudulent related to particular social groups, see Section NPRM underlying this final rule, documents is necessary due to concerns II.C.4.1 of this preamble, and for further discussion regarding the changes related to nexus, see Section precludes the public from meaningfully that the use of fraudulent documents II.C.4.4. reviewing and commenting on that rule. makes the proper enforcement of the 80 The Departments also note that aliens with Finally, commenters are incorrect that immigration laws ‘‘difficult’’ and otherwise meritorious claims who are denied the rule is related to enhancing the ‘‘requires an immense amount of asylum under genuinely new principles in the government’s litigating positions. As rule—e.g., the new definition of ‘‘firm resources’’); id. (explaining that the resettlement’’—may remain eligible for other forms explained in the NPRM and this inclusion of a discretionary factor for of protection from removal, such as statutory response section, the Departments failure to seek asylum or protection in withholding of removal or protection under the detailed a number of reasons for a transit country ‘‘may reflect an CAT. Thus, contrary to the assertions of many promulgating this rule, including to commenters, the rule would not result in the increased likelihood that the alien is ‘‘harsh’’ or ‘‘severe’’ consequence of an alien being increase efficiency, to provide clarity to misusing the asylum system’’); id. at removed to a country where his or her life would adjudicators, and to protect the integrity 36284 (explaining that making be in danger. of proceedings. To the extent the rule

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corresponds with interpretations of the periods shorter than 30 days, often in question governs only until ‘‘the agency Act and case law that the Departments the face of exigent circumstances. See, has issued a dispositive interpretation have set forth in other contexts, the e.g., N. Carolina Growers’ Ass’n, Inc. v. concerning the meaning of a genuinely Departments disagree that such United Farm Workers, 702 F.3d 755, 770 ambiguous statute or regulation.’’ The correspondence violates the APA. (4th Cir. 2012) (analyzing the organization also noted that Chevron Instead, it shows the Departments’ sufficiency of a 10-day comment deference requires a Federal court to consistent interpretation and the period); Omnipoint Corp. v. FCC, 78 accept an agency’s ‘‘reasonable Departments’ intent to better align the F.3d 620, 629–30 (D.C. Cir. 1996) (15- construction of an ambiguous statute,’’ regulations with the Act through this day comment period); Northwest emphasizing that the distinction rulemaking. Airlines, Inc. v. Goldschmidt, 645 F.2d between ‘‘genuinely ambiguous 1309, 1321 (8th Cir. 1981) (7-day language’’ and ‘‘plain language’’ is 6.3. 30-Day Comment Period comment period). In addition, the crucial. See Chevron, 467 U.S. at 843– Comment: Commenters raised Departments are not aware of any case 44, n.11. concerns with the 30-day comment law holding that a 30-day comment The organization then alleged that the period, arguing that the Departments period was insufficient, and the Departments’ reliance on Brand X ‘‘to should extend the comment period to at significant number of detailed public entirely eviscerate Federal court least 60 days or should reissue the rule comments is evidence that the 30-day caselaw’’ is misplaced and contrary to with a new 60-day comment period. period was sufficient for the public to controlling law. According to the Due to the complex nature of the rule meaningfully review and provide organization, the Departments failed to and its length, commenters requested informed comment. See, e.g., Little demonstrate that each instance of the additional time to comment, asserting Sisters of the Poor, 140 S. Ct. at 2385 statutory language they seek to overrule that such time is needed to meet APA (‘‘The object [of notice and comment], in is ‘‘genuinely ambiguous,’’ and the requirements that agencies provide the short, is one of fair notice.’’ (citation and organization cited Kisor, 139 S. Ct. 2400, public with a ‘‘meaningful opportunity’’ quotation marks omitted)). to support its claim that deference to to comment. Commenters also claimed One commenter noted that the ‘‘agency regulations should not be that the 30-day comment period was comment period in the rule regarding afforded automatically.’’ The particularly problematic due to the the edits to the Form I–589, Application organization claimed that Kisor limits COVID–19 pandemic, which caused for Asylum and for Withholding of the ability to afford deference unless (1) disruption and limited staff capacity for Removal, was 60 days, while the a regulation is genuinely ambiguous; (2) some commenters. Moreover, comment period for the substantive the agency’s interpretation is reasonable commenters stated that there should be portions of the rule was only 30 days. regarding text, structure, and history; (3) no urgency to publish the rule due to In most cases, by statute, the Paperwork the interpretation is the agency’s official the southern border being ‘‘blocked’’ Reduction Act requires a 60-day position; (4) the regulation implicates due to COVID–19. Finally, commenters comment period for proposed the agency’s expertise; and (5) the referenced the companion data information collections, such as the regulation reflects the agency’s ‘‘fair and collection under the Paperwork Form I–589. 44 U.S.C. 3506(c)(2)(A). considered judgment.’’ The organization Reduction Act, which allowed for a 60- Although the statute allows an contended that the Departments failed day comment period. exception for proposed collections of to meet these criteria, alleging that the Response: The Departments believe information contained in a proposed proposed rule attempts to ‘‘re-write the 30-day comment period was rule that will be reviewed by the asylum law rather than interpret the sufficient to allow for meaningful public Director of the Office of Management statute.’’ input, as evidenced by the almost and Budget under 44 U.S.C. 3507, see 44 Multiple commenters claimed that the 89,000 public comments received, U.S.C. 3506(c)(2)(B), the Departments rule is in opposition to the asylum including numerous detailed comments sought a 60-day comment period to criteria established by Congress and from interested organizations. The APA provide the public with additional time expressed concern that the rule was does not require a specific comment to comment on the form changes. In drafted without congressional input. period length, see 5 U.S.C. 553(b), (c), contrast, as explained above, there is no Response: The Departments did not and although Executive Orders 12866, similar statutory requirement for the ignore Kisor, 139 S. Ct. 2400. Kisor 58 FR 51735 (Sept. 30, 1993), and proposed rule itself. examined the scope of Auer deference, 13563, 76 FR 3821 (Jan. 18, 2011), which affords deference to an agency’s recommend a comment period of at 6.4. Agency Is Acting Beyond Authority ‘‘reasonable readings of genuinely least 60 days, a 60-day period is not Comment: At least one organization ambiguous regulations.’’ Id. at 2408 required. Federal courts have presumed emphasized the Departments’ reliance (citing Auer v. Robbins, 519 U.S. 452 30 days to be a reasonable comment on Brand X, 545 U.S. at 982, as a (1997)). Here, ambiguous regulations are period length. For example, the D.C. justification for the portions of the rule not at issue; instead, the Departments Circuit has stated that, although a 30- overruling circuit court decisions amended the regulations based on their day period is often the ‘‘shortest’’ period relating to asylum. See 85 FR at 36265, reading of ambiguities in the statute, in that will satisfy the APA, such a period n.1. One organization claimed the accordance with Congress’s presumed is generally ‘‘sufficient for interested Departments ‘‘ignore[d]’’ the Supreme intent for the Departments to resolve persons to meaningfully review a Court’s decision in Kisor v. Wilkie, 139 these ambiguities. See 85 FR at 36265 proposed rule and provide informed S. Ct. 2400 (2019), which ‘‘follows the n.1 (citing Brand X, 545 U.S. at 982). comment,’’ even when ‘‘substantial rule recent trend towards limiting deference The Departments disagree that the changes’’ are proposed. Nat’l Lifeline to an agency’s interpretation of its own rulemaking ‘‘eviscerates’’ case law. As Ass’n v. Fed. Commc’ns Comm’n, 921 rules.’’ According to the organization, explained in the NPRM, ‘‘administrative F.3d 1102, 1117 (D.C. Cir. 2019) (citing Brand X can be interpreted to mean that, agencies are not bound by prior judicial Petry v. Block, 737 F.2d 1193, 1201 where statutory or regulatory terms are interpretations of ambiguous statutory (D.C. Cir. 1984)). generally ambiguous and the agency has interpretations, because there is ‘a Further, litigation has mainly focused not ruled on a particular issue, circuit presumption that Congress, when it left on the reasonableness of comment court law addressing the issue in ambiguity in a statute meant for

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implementation by an agency, Congress, in other words, has already The Departments also note that, understood that the ambiguity would be delegated to the Attorney General the although an agency ‘‘must give effect to resolved, first and foremost, by the power to promulgate rules such as this the unambiguously expressed intent of agency, and desired the agency (rather one, and no further congressional input Congress,’’ if Congress ‘‘has explicitly than the courts) to possess whatever is required. left a gap for the agency to fill, there is an express delegation of authority to the degree of discretion the ambiguity 6.5. Violates Separation of Powers allows.’ ’’ Matter of R–A–, 24 I&N Dec. agency to elucidate a specific provision at 631 (quoting Brand X, 545 U.S. at One organization emphasized that the of the statute by regulation. Such 982) (quotation marks and citations Departments only have authority to legislative regulations are given omitted); see also 85 FR at 36265 n.1; ‘‘faithfully interpret’’ a statute, not to controlling weight unless they are Ventura, 537 U.S. at 16 (‘‘Within broad rewrite it. The organization contended arbitrary, capricious, or manifestly limits the law entrusts the agency to that ‘‘[r]ulemaking is not an opportunity contrary to the statute.’’ Chevron, 467 make the basic asylum eligibility for an agency to engage in an U.S. at 843–44; see also Aguirre-Aguirre, decision here in question. In such unauthorized writing exercise that 526 U.S. at 424–25 (‘‘It is clear that circumstances a judicial judgment duplicates the legislative role assigned principles of Chevron deference are cannot be made to do service for an to Congress.’’ Another commenter applicable to [the INA]. The INA administrative judgment. Nor can an claimed there is an ‘‘urgent need’’ for provides that ‘[t]he Attorney General appellate court intrude upon the checks and balances on the ‘‘power’’ of shall be charged with the administration domain which Congress has exclusively immigration authorities in the asylum and enforcement’ of the statute and that entrusted to an administrative agency. A process, alleging that the U.S. the ‘determination and ruling by the court of appeals is not generally government is allowing ICE and CBP to Attorney General with respect to all empowered to conduct a de novo put lives in danger due to ‘‘lack of questions of law shall be controlling.’ inquiry into the matter being reviewed oversight.’’ One commenter contended . . . In addition, we have recognized and to reach its own conclusions based that revising asylum law ‘‘is not an that judicial deference to the Executive on such an inquiry.’’ (alteration, executive branch function.’’ Branch is especially appropriate in the Response: The Departments are not citations, and quotation marks immigration context where officials rewriting statutes. As explained omitted)). Moreover, ‘‘ ‘judicial ‘exercise especially sensitive political throughout this final rule in various deference to the Executive Branch is functions that implicate questions of sections, the Departments are statutorily especially appropriate in the foreign relations.’ ’’ (citations omitted)). authorized to promulgate this rule immigration context,’ where decisions Congress has clearly spoken in the Act, under section 208(b)(1)(A) of the Act, 8 about a complex statutory scheme often see INA 208(b)(1)(A), 8 U.S.C. U.S.C. 1158(b)(1)(A) (authority to make 1158(b)(1)(A); INA 208(b)(2)(C), 8 U.S.C. implicate foreign relations.’’ Cuellar de discretionary asylum determinations), Osorio, 573 U.S. at 56–57 (quoting INS 1158(b)(2)(C); INA 208(d)(5)(B), 8 U.S.C. section 208(b)(2)(C) of the Act, 8 U.S.C. 1158(d)(5)(B); and INA 103(g)(1), (2), 8 v. Aguirre-Aguirre, 526 U.S. 415, 425 1158(b)(2)(C) (authority to establish (1999)). U.S.C. 1103(g)(1), (2), and the additional limitations and conditions on Departments properly engaged in this Further, the Departments disagree that asylum eligibility), and section rulemaking, consistent with 5 U.S.C. the rulemaking rewrites asylum law or 208(d)(5)(B) of the Act, 8 U.S.C. 553, to effectuate that statutory scheme. that it conflicts with the asylum criteria 1158(d)(5)(B) (authority to establish To the extent that comments disagree established by Congress. Congress other conditions and limitations on with provisions of the INA, such statutorily authorized the Attorney consideration of asylum applications). comments are properly directed to General to, consistent with the statute, In section 103(a)(1) and (3) of the INA, Congress, not the Departments. make discretionary asylum 8 U.S.C. 1103(a)(1), (3), Congress has determinations, INA 208(b)(1)(A), 8 conferred upon the Secretary broad 6.6. Congress Should Act U.S.C. 1158(b)(1)(A), establish authority to administer and enforce the Comment: Some commenters stated additional limitations and conditions on immigration laws and to ‘‘establish such that Congress, not the Departments, asylum eligibility, INA 208(b)(2)(C), 8 regulations . . . as he deems necessary must make the sorts of changes to the U.S.C. 1158(b)(2)(C), and establish other for carrying out his authority’’ under the asylum procedures set out in the conditions and limitations on immigration laws. Under section proposed rule. Commenters cited a consideration of asylum applications, 103(g)(1), (2) of the Act, 8 U.S.C. variety of reasons why these changes are INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). 1103(g)(1), (2), Congress provided the most appropriately the providence of The changes made by this rulemaking Attorney General with the ‘‘authorities Congress, including commenters’ belief are consistent with those congressional and functions under this chapter and all that the rule would effectively end or directives. Regarding commenters’ other laws relating to the immigration eliminate asylum availability and limit concerns that the rule was drafted and naturalization of aliens,’’ and how many asylum seekers would without congressional input, the directed the Attorney General to receive relief annually, the breadth of Departments once again point to ‘‘establish such regulations . . . and the changes in the proposed rule, and Congress’s statutory delegation of perform such other acts as the Attorney alleged inconsistencies between the Act authority to the Attorney General. See General determines to be necessary for and the rule. Commenters expressed a INA 103(g)(1), (2), 8 U.S.C. 1103(g)(1), carrying out this section.’’ Thus, the belief that changes as significant as (2) (granting the Attorney General the Departments derive authority to those proposed should be undertaken ‘‘authorities and functions under this promulgate this rule from the statute only by Congress. Other commenters chapter and all other laws relating to the and issued this rule consistent with the suggested that Congress should immigration and naturalization of statute, not in contravention of it. separately enact other legislation to aliens,’’ and directing the Attorney Moreover, the Departments have protect asylum seekers. General to ‘‘establish such regulations promulgated this rule in accordance Response: As stated above, the . . . and perform such other acts as the with the APA’s rulemaking process. See Departments issued the proposed rule, Attorney General determines to be 5 U.S.C. 553; see also Sections II.C.6.2, and in turn are issuing this final rule, necessary for carrying out this section’’). 6.3 of this preamble. pursuant to the authorities provided by

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Congress through the HSA and the Act. accordance with the evidence and rule would even affect asylum claims INA. See, e.g., INA 103(a)(1) and (3), applicable law. Moreover, the changes based on persecution because of race. (g)(2), 208, 8 U.S.C. 1101(a)(1) and (3), alleged by commenters to have a In regard to allegations that the rule (g)(2), 1158.81 Despite commenters’ disparate impact on discrete groups are would discriminate against LGBTQ statements, the provisions of the rule are ones rooted in existing law as noted in individuals, children, and survivors of consistent with these authorities and the the NPRM, and commenters provided violence or torture, the Departments Act, as discussed above. See, e.g., no evidence that existing law has reiterate that the rule applies equally to Sections II.C.2, II.C.3, II.C.4, and II.C.6.1 caused an unconstitutional disparate all asylum seekers. Further, as noted of this preamble. impact. For allegations of disparate elsewhere, to the extent that the NPRM Should Congress enact legislation that impact based on gender, a ‘‘significantly may affect certain groups of aliens more amends the provisions of the Act that discriminatory pattern’’ must first be than others based on the innate are interpreted and affected by this rule, demonstrated. Dothard v. Rawlinson, characteristics of those who file asylum the Departments will engage in future 433 U.S. 321, 329 (1977). The applications, those effects are a by- rulemaking as needed. Commenters’ Departments are unaware of such a product of the intrinsic demographic discussion of specific possible pattern, and commenters did not distribution of claims, and a plausible legislative proposals or initiatives, provide persuasive evidence of one, equal protection claim will not lie in however, is outside of the scope of this relying principally on anecdotes and such circumstances. See Regents of rule. isolated statistics, news articles, and Univ. of Cal., 140 S. Ct. at 1915–16 (impact of a policy on a population that 6.7. Violates Constitutional Rights reports.82 Moreover, to the extent that the NPRM may affect certain groups of is intrinsically skewed demographically Comment: One organization aliens more than others, those effects are does not established a plausible claim of contended that the application of the a by-product of the intrinsic animus, invidious discrimination, or an ‘‘interpersonal’’ and ‘‘private’’ categories demographic distribution of claims, and equal protection violation). to domestic and gender-based violence Relatedly, this rule does not eliminate a plausible equal protection claim will would violate the Equal Protection statutory withholding of removal or not lie in such circumstances. See Clause. The organization claimed the protection under the CAT regulations, Regents of Univ. of Cal., 140 S. Ct. at presumption created by these categories through which the United States 1915–16 (impact of a policy on a would have a disproportionate effect on continues to fulfill its commitments population that is intrinsically skewed women, who are much more likely than under the 1967 Refugee Protocol, demographically does not established a men to experience violence by an consistent with the Refugee Act of 1980 plausible claim of animus, invidious intimate partner. and subsequent amendments to the INA, discrimination, or an equal protection Another organization alleged that the and the CAT, consistent with FARRA. violation). rule would essentially prevent women, See R–S–C, 869 F.3d at 1188, n.11 children, LGBTQ individuals, people of For allegations of disparate impact (explaining that ‘‘the Refugee color, survivors of violence, and torture based on race, case law has ‘‘not Convention’s non-refoulement escapees from obtaining asylum embraced the proposition that a law or principle—which prohibits the protection, claiming this violates the other official act, without regard to deportation of aliens to countries where ‘‘spirit and letter’’ of both the Fifth whether it reflects a racially the alien will experience persecution— Amendment and the Refugee Act of discriminatory purpose, is is given full effect by the Attorney 1980. According to the organization, the unconstitutional [s]olely because it has General’s withholding-only rule’’); rule is designed to ‘‘eliminate due a racially disproportionate impact.... Cazun v. Att’y Gen. U.S., 856 F.3d 249, process’’ and create ‘‘impossible new [W]e have not held that a law, neutral 257 n.16 (3d Cir. 2017); Ramirez-Mejia legal standards’’ to prevent refugees on its face and serving ends otherwise v. Lynch, 813 F.3d 240, 241 (5th Cir. from obtaining asylum. One within the power of government to 2016); Maldonado, 786 F.3d at 1162 organization emphasized generally that pursue, is invalid under the Equal (explaining that Article 3 of the CAT, asylum seekers should not be treated Protection Clause simply because it may which sets out the non-refoulement like criminals but should instead be affect a greater proportion of one race obligations of parties, was implemented shown dignity and respect; the than of another. Disproportionate in the United States by the FARRA and organization noted that these impact is not irrelevant, but it is not the its implementing regulations). individuals should also be given sole touchstone of an invidious racial The rule does not eliminate due judicial due process. discrimination forbidden by the process. As explained previously in this Response: The rule makes no Constitution.’’ Washington, 426 U.S. at rule, due process in an immigration classifications prohibited by the Equal 239, 242. No discriminatory motive or proceeding requires notice and an Protection Clause; thus, the purpose underlies this rulemaking; it opportunity to be heard. See LaChance, commenter’s allegation that the rule will does not address race in any way; 83 and 522 U.S. at 266 (‘‘The core of due disproportionately affect various commenters have not explained— process is the right to notice and a groups—women, children, LGBTQ logically, legally, or otherwise—how the meaningful opportunity to be heard.’’). individuals, people of color, and The rule does not eliminate the notice survivors of violence and torture—is 82 The Departments also note that accepting the of charges of removability against an unfounded. The Departments do not commenters’ assertion that the likelihood of women alien, INA 239(a)(1), 8 U.S.C. 1229(a)(1), track the factual bases for each asylum being subject to intimate-partner violence being or the opportunity for the alien to make application, and each application is greater than that of men necessarily demonstrates his or her case to an immigration judge, an equal protection violation would, in turn, mean adjudicated on a case-by-case basis in that other immigration regulations regarding INA 240(a)(1), 8 U.S.C. 1229a(a)(1), or victims of domestic violence, e.g., 8 CFR 204.2(c), on appeal, 8 CFR 1003.38. Moreover, 81 In addition, Congress has authorized the are also unconstitutional because of their putative asylum is a discretionary benefit. See Department to ‘‘provide by regulation for any other disparate impact. INA 208 (b)(1)(A), 8 U.S.C. 1158(b)(1)(A) conditions or limitations on the consideration of an 83 The NPRM did not mention race at all, except application for asylum’’ consistent with the other when quoting the five statutory bases for asylum— (stating that the Departments ‘‘may’’ provisions of the Act. INA 208(d)(5)(B), 8 U.S.C. race, religion, nationality, political opinion, and grant asylum’’); see also Thuraissigiam, 1158(d)(5)(B). membership in a particular social group. 140 S. Ct. at 1965 n.4 (‘‘A grant of

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asylum enables an alien to enter the facilitate ‘‘as far as possible’’ the of statutory withholding of removal country, but even if an applicant assimilation and naturalization of ensures continued compliance with qualifies, an actual grant of asylum is individuals who qualify as refugees. international obligations. Specifically, discretionary.’’). The Attorney General Commenters criticized the commenters noted that many of the and the Secretary are statutorily Departments’ statements that the provisions of the proposed rule also authorized to limit and condition continued viability of statutory affect eligibility for protection under asylum eligibility under section withholding of removal, as referenced in statutory withholding of removal. 208(b)(2)(C), (d)(5)(B) of the Act, 8 the preamble to the NPRM, meets the Commenters argued that the proposed U.S.C. 1158(b)(2)(C), (d)(5)(B), by United States’ non-refoulement changes that affect statutory regulation and consistent with the Act, obligations. Commenters asserted that withholding of removal would not and courts have found that aliens have this is a misreading of the scope of both adequately meet the United States’ no cognizable due process interest in domestic and international obligations. obligations under the non-refoulement the discretionary benefit of asylum. See As an initial matter, commenters provisions of Article 33. Yuen Jin, 538 F.3d at 156–57; Ticoalu, averred that the Refugee Act of 1980, as Response: This rule is consistent with 472 F.3d at 11 (citing DaCosta, 449 F.3d implemented, was designed to give full the United States’ obligations as a party at 50). The Departments properly force to the United States’ obligations to the 1967 Protocol, which incorporates exercised that authority in this under the Refugee Convention, to the Articles 2 through 34 of the 1951 rulemaking, and that exercise does not extent applicable by incorporation in Refugee Convention.84 This rule is also implicate due process claims. Finally, the 1967 Protocol. Commenters argued consistent with U.S. obligations under the rule does not treat aliens ‘‘like that these obligations are not limited to Article 3 of the CAT, as implemented in criminals,’’ as commenters alleged. one article of the Refugee Convention the immigration regulations pursuant to Aliens retain all due process rights to and are not limited to not returning an the implementing legislation. which they are entitled under law, and individual to a country where he or she Regarding the CRC, as an initial point, the rule does not change that situation. would face persecution or other severe although the United States has signed harm. Rather, commenters asserted, the the instrument, the United States has 6.8. Violates International Law obligations also require the United not ratified it; thus, it cannot establish Comment: Commenters asserted that States to ensure that refugees are treated any binding obligations. See Martinez- the proposed rule violates the fairly and with dignity, and are Lopez v. Gonzales, 454 F.3d 500, 502 Convention on the Rights of the Child guaranteed freedom of movement and (5th Cir. 2006) (‘‘The United States has (‘‘CRC’’) because the United States, as a rights to employment, education, and not ratified the CRC, and, accordingly, signatory, is obligated to ‘‘refrain from other basic needs. Commenters also the treaty cannot give rise to an acts that would defeat the object and cited the Refugee Convention’s individually enforceable right.’’). purpose of the Convention.’’ provision to provide a pathway to Moreover, contrary to commenters’ Commenters averred that the CRC permanent status for refugees, which the assertions, nothing in the rule is protects the rights of children to seek commenters asserted is reflected in the inconsistent with the CRC. Under the asylum; therefore, commenters argued, asylum scheme implemented by the CRC, states are obligated to ‘‘take the United States must protect the right Refugee Act, not the statutory appropriate measures to ensure that a of children to seek asylum. Commenters withholding of removal provisions. child who is seeking refugee status or also asserted that the proposed rule Commenters argued that narrowing the who is considered a refugee in violates the Refugee Convention and the opportunity to receive asylum through accordance with applicable CRC by requiring adjudicators to the implementation of numerous international or domestic law and presume that many child-specific forms regulatory obstacles makes asylum—and procedures shall, whether of persecution do not warrant a grant of therefore permanent status— unaccompanied or accompanied by his asylum. Commenters alleged that this unattainable, which is inconsistent with or her parents or by any other person, will result in children being returned to the United States’ obligations under receive appropriate protection and danger in violation of the language and U.S. and international law. Commenters humanitarian assistance in the spirit of the Refugee Convention and the also generally asserted that allowing enjoyment of applicable rights set forth CRC. immigration judges to pretermit in the present Convention and in other One commenter cited Article 14 of the applications for asylum violates the international human rights or Universal Declaration of Human Rights principle of non-refoulement. humanitarian instruments to which the (‘‘UDHR’’), G.A. Res. 217A (III), U.N. Commenters generally asserted that said States are Parties.’’ Convention on Doc. A/810 (1948), which states that the culmination of the proposed rule’s the Rights of the Child, art. 22, opened ‘‘[e]veryone has the right to seek and to procedural and substantive changes for signature Nov. 20, 1989, 28 I.L.M. enjoy in other countries asylum from subvert the purpose of the Refugee Act, 1448. Because this rule is consistent persecution.’’ That commenter asserted which was to implement the United with the Refugee Act and the United that the proposed revisions States’ commitments made through States’ obligations under the Refugee unnecessarily hinder access to asylum ratification of the 1967 Protocol. in contradiction of that right. Further, one organizational commenter 84 The Departments also note that neither of these Commenters also asserted that, under argued that the proposed rule ‘‘re- treaties is self-executing, and that, therefore, neither is directly enforceable in the U.S. legal context Article 34 of the Refugee Convention, orients the U.S. asylum process away except to the extent that they have been the United States has an obligation to from a principled, humanitarian implemented by domestic legislation. Al-Fara v. extend grants of asylum ‘‘as far as approach focused on identifying Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (‘‘The possible’’ to eligible refugees. These individuals with international 1967 Protocol is not self-executing, nor does it confer any rights beyond those granted by commenters asserted that this requires protection needs towards one that implementing domestic legislation.’’); Auguste v. adjudicators to, at the very least, establishes a set of obstacles which must Ridge, 395 F.3d 123, 132 (3d Cir. 2005) (‘‘CAT was exercise a general presumption in favor be overcome by individuals seeking not self-executing’’); see also Stevic, 467 U.S. at 428 of individuals who meet the definition international protection.’’ Commenters n.22 (‘‘Article 34 merely called on nations to facilitate the admission of refugees to the extent of refugee. To do otherwise would not also criticized the Departments’ possible; the language of Article 34 was precatory meet the United States’ obligation to statements that the continued viability and not self-executing.’’).

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Convention and Article 3 of the CAT, it Similarly, the Departments disagree Departments’ ‘‘multiple overlapping is consistent with the CRC. with commenters’ unsupported proposals to amend the same asylum Similarly, the Departments disagree assertions that the United States’ provisions’’ comply with Executive with commenters’ assertions that the obligation to ‘‘as far as possible facilitate Order 12866’s mandate that ‘‘[e]ach rule violates the CRC by creating a the assimilation and naturalization of agency shall avoid regulations that are presumption against ‘‘child-specific refugees’’ requires a general inconsistent, incompatible, or forms of persecution.’’ As an initial presumption in favor of granting asylum duplicative with its other regulations or point, nothing in the rule singles out to all individuals who apply. Rather, as those of other Federal agencies.’’ Citing children or ‘‘child-specific’’ claims; the Supreme Court has noted, Article 34 CSX Transportation, Inc. v. Surface rather, the rule applies to all types of ‘‘is precatory; it does not require the Transportation Board, 754 F.3d 1056, claims regardless of the demographic implementing authority actually to grant 1065–66 (D.C. Cir. 2014), the characteristics of the applicant. asylum to all those who are eligible.’’ organization claimed it would be Moreover, although certain types of Cardoza-Fonseca, 480 U.S. at 441. ‘‘arbitrary and capricious’’ for the children are afforded more protections Moreover, the United States Departments to account for costs and by statute than similarly-situated non- implemented the non-refoulement benefits in favor of this proposal that are child asylum applicants, see e.g., INA provision of Article 33(1) of the Refugee identical to the costs and benefits 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C), this Convention through the withholding of ‘‘already priced into the other revisions rule does not affect those protections. removal provision at section 241(b)(3) of of the same provision.’’ 85 The Further, generally applicable legal the Act, 8 U.S.C. 1231(b)(3), and the organization contended that there is no requirements, including credibility non-refoulement provision of Article 3 indication in the rule that the standards and burdens of proof, are not of the CAT through the CAT regulations, Departments have attempted to identify relaxed or obviated for juvenile rather than through the asylum such overlap. respondents. See EOIR, Operating provisions at section 208 of the Act, 8 Commenters disagreed with the Policies and Procedures Memorandum U.S.C. 1158. See Cardoza-Fonseca, 480 Department’s assertion, pursuant to the 17–03: Guidelines for Immigration Court U.S. at 429, 440–41 & n.25; Matter of O– Regulatory Flexibility Act (‘‘RFA’’) Cases Involving Juveniles, Including F–A–S–, 27 I&N Dec. at 712; FARRA; 8 requirements, that the rule would ‘‘not Unaccompanied Alien Children 7 (Dec. CFR 208.16(b), (c), 208.17 through have a significant economic impact on 20, 2017), https://www.justice.gov/eoir/ 208.18; 1208.16(b), (c); 1208.17 through a substantial number of small entities’’ file/oppm17-03/download. 1208.18. This rule’s limitations on and that the rule only regulates The UDHR is a non-binding human asylum, including the ability of individuals and not small entities. 85 rights instrument, not an international immigration judges to pretermit FR at 36288–89. For example, agreement; thus it does not impose legal applications, do not violate the United commenters argued that the combined obligations on the United States. States’ non-refoulement obligations. effect of the rule’s provisions would, Alvarez-Machain, 542 U.S. at 728, 734– At the same time, the changes to inter alia, affect how practitioners 35 (citing John P. Humphrey, The U.N. statutory withholding of removal and accept cases, manage dockets, or assess Charter and the Universal Declaration CAT protection do not misalign the rule fees. Commenters asserted that these of Human Rights, in The International with the non-refoulement provisions of effects would, in turn, impact the Protection of Human Rights 39, 50 (Evan the 1951 Refugee Convention, the 1967 overall ability of practitioners to provide Luard ed., 1967) (quoting Eleanor Protocol, and the CAT. As explained services and affect aliens’ access to Roosevelt as stating that the UDHR is above, the Departments have properly representation. In addition, commenters ‘‘ ‘a statement of principles . . . setting asserted additional standards and stated that these changes demonstrate up a common standard of achievement clarification for immigration judges to the rule would in fact regulate small for all peoples and all nations’ and ‘not follow when evaluating claims for entities, namely the law firms or other a treaty or international agreement . . . statutory withholding of removal and organizations who appear before the impos[ing] legal obligations.’ ’’)). protection under the CAT. Departments. Moreover, although article 14(1) of the Response: The Departments agree 6.9. Executive Order 12866 and Costs UDHR proclaims the right of ‘‘everyone’’ with commenters that the rule is a and Benefits of the Rule; Regulatory to ‘‘seek and to enjoy’’ asylum, it does ‘‘significant regulatory action.’’ As Flexibility Act not purport to state specific standards stated in the proposed rule at section for establishing asylum eligibility, and it Comment: At least one commenter V.D, the rule was considered a certainly cannot be read to impose an alleged that the rule creates ‘‘serious ‘‘significant regulatory action.’’ 85 FR at obligation on the United States to grant inconsistencies’’ with sections 208(a) 36289. As a result, the rule was asylum to ‘‘everyone,’’ see id., or to and 240(b) of the Act, 8 U.S.C. 1158(a), submitted to the Office of Management prevent the Attorney General and 1229a(b), and the Constitution; as a and Budget for review, and the Secretary from exercising the discretion result, commenters stated, the rule Departments included the required granted by the INA, consistent with U.S. constitutes a ‘‘significant regulatory analysis of the rule’s costs and benefits. obligations under international law, see action’’ under Executive Order 12866 Id. at 36289–90. UNHCR, Advisory Opinion on the and the Departments must comply with Regarding commenters’ concerns that Extraterritorial Application of Non- the order’s analysis requirements, the analysis failed to consider intangible Refoulement Obligations under the 1951 specifically sections 6(a)(3)(B) and (C). costs like alleged costs to the United Convention relating to the Status of Multiple organizations claimed that States’ reputation or the lost ‘‘talent, Refugees and its 1967 Protocol 3 (Jan. the costs and benefits section of the rule diversity, and innovation’’ from asylees, 26, 2007), https://www.unhcr.org/ fails to address the cost to the 4d9486929.pdf (‘‘The principle of non- ‘‘reputation’’ of the United States, as 85 The Departments note that reliance on CSX refoulement as provided for in Article well as the cost of losing the ‘‘talent, Transportation is misplaced because that case 33(1) of the 1951 Convention does not, diversity, and innovation’’ brought by involved the agency’s consideration of costs to determine a maximum relief penalty amount and as such, entail a right of the individual asylees. was not related to the consideration of costs in the to be granted asylum in a particular Another organization emphasized that context of an agency’s required cost-benefit State.’’). it is difficult to evaluate whether the analysis.

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the Departments note that such alleged with the rule. Immigration practitioners national economy. That is a very broad costs are, in fact, the nonquantifiable are already subject to professional and ambitious agenda, and we think opinions of the commenters. The responsibility rules regarding workload that Congress is unlikely to have Departments are not required to analyze management, 8 CFR 1003.102(q)(1), and embarked on such a course without opinions. Even if commenters’ opinions are already accustomed to changes in airing the matter.’’); Cement Kiln about intangible concepts without clear asylum law based on the issuance of Recycling Coalition v. EPA, 255 F.3d definitions could be translated into new precedential decisions from the 855, 869 (D.C. Cir. 2001) (‘‘Contrary to measurable or qualitatively discrete BIA or the courts of appeals. what [petitioner] supposes, application considerations the Departments are Also, although becoming familiar of the RFA does turn on whether unaware of any standard or metric to with such a decision or with this rule particular entities are the ‘targets’ of a evaluate the cost of concepts such a may require a certain, albeit small, given rule. The statute requires that the country’s reputation or ‘‘innovation.’’ amount of time, any time spent on this agency conduct the relevant analysis or Moreover, the fact-specific nature of process will likely be offset by the certify ‘no impact’ for those small asylum applications and the lack of future benefits of the rule. Indeed, one businesses that are ‘subject to’ the granular data on the facts of every purpose of the rule is to encourage regulation, that is, those to which the asylum application prevent the clearer and more efficient adjudications, regulation ‘will apply.’. . . The rule Departments from quantifying particular see e.g., 85 FR at 36290, thus reducing will doubtless have economic impacts costs. Further, although Executive Order the need for practitioners to become in many sectors of the economy. But to 12866 observes that nonquantifiable familiar with the inefficient, case-by- require an agency to assess the impact costs are important to consider, the case approach that is currently on all of the nation’s small businesses order requires their consideration only employed for adjudicating issues such possibly affected by a rule would be to to the extent that they can be usefully as firm resettlement. In addition, the convert every rulemaking process into a estimated, and the Departments Departments note that the prospective massive exercise in economic modeling, properly assessed the rules using application of the rule will further an approach we have already rejected.’’ appropriate qualitative considerations. diminish the effect of the rule on (citing Mid-Tex, 773 F.2d 327 at 343)); See 85 FR at 36289–90. practitioners, as no practitioners will be see also White Eagle Co-op Ass’n v. As stated above in Section II.C.6.9 of required to reevaluate any cases or Conner, 553 F.3d 467, 480 (7th Cir. this preamble, each of the Departments’ arguments that they are currently 2009) (‘‘The rule that emerges from this regulations stands on its own. This pursuing. line of cases is that small entities regulation is not ‘‘inconsistent, The Departments also reject the directly regulated by the proposed incompatible, or duplicative’’ with other assertion that the rule would have a [rulemaking]—whose conduct is proposed or final rules published by the significant impact on small entities. The circumscribed or mandated—may bring rule applies to asylum applicants, who Departments, and the Departments a challenge to the RFA analysis or are individuals, not entities. See 5 disagree with the implication that all certification of an agency.... U.S.C. 601(6). The rule does not limit in rules that would affect one underlying However, when the regulation reaches any way the ability of practitioners to area of the Act, such as asylum small entities only indirectly, they do accept cases, manage dockets, or assess eligibility, must be issued in one single not have standing to bring an RFA fees. Indeed, nothing in the rule in any rulemaking to comply with Executive challenge.’’). Order 12866. Cf. Ctr. for Biological fashion regulates the legal Diversity v. EPA, 722 F.3d 401, 410 representatives of such individuals or Further, DOJ reached a similar (D.C. Cir. 2013) (agencies have the organizations by which those conclusion in 1997 involving a broader discretion to address an issue through representatives are employed, and the rulemaking regarding asylum different rulemakings over time). Departments are unaware of cases in adjudications. See Inspection and As noted in the NPRM, the which the RFA’s requirements have Expedited Removal of Aliens; Detention Departments believe that the rule will been applied to legal representatives of and Removal of Aliens; Conduct of provide a significant net benefit by entities subject to its provisions, in Removal Proceedings; Asylum allowing for the expeditious and addition to or in lieu of the entities Procedures, 62 FR 444, 453 (Jan. 3, efficient resolution of asylum cases by themselves. See 5 U.S.C. 603(b)(3) 1997) (certifying that the rule would not reducing the number of meritless claims (requiring that an RFA analysis include have a significant impact on a before the immigration courts, thereby a description of and, if feasible, an substantial number of small entities providing the Departments with ‘‘the estimate of the number of ‘‘small because it ‘‘affects only Federal ability to more promptly grant relief or entities’’ to which the rule ‘‘will government operations’’ by revising the protection to qualifying aliens.’’ 85 FR apply’’). To the contrary, case law procedures for the ‘‘examination, at 36290. These benefits will ensure that indicates that indirect effects on entities detention, and removal of aliens’’). That the Departments’ case volumes do not not regulated by a proposed rule are not conclusion was reiterated in the interim increase to an insurmountable degree, subject to an RFA analysis. See, e.g., rule, 62 FR 10312, 10328 (Mar. 6, 1997), which in turn will leave additional Mid-Tex Elec. Co-op, Inc. v. FERC, 773 which was adopted with no noted resources available for a greater number F.2d 327, 342–43 (D.C. Cir. 1985) (‘‘[W]e challenge or dispute. This final rule is of asylum seekers. Contrary to conclude that an agency may properly similar, in that it, too, affects only the commenters’ claims, the rule will not certify that no regulatory flexibility operations of the Federal government by prevent aliens from submitting asylum analysis is necessary when it determines amending a subset of the procedures the applications or receiving relief or that the rule will not have a significant government uses to process certain protection in appropriate cases. economic impact on a substantial aliens. The Departments thus believe Moreover, the rule is not imposing any number of small entities that are subject that the experience of implementing the new costs on asylum seekers. to the requirements of the rule.... prior rule supports their conclusion that Additionally, any costs imposed on Congress did not intend to require that there is no evidence that the current attorneys or representatives for asylum every agency consider every indirect rule will have a significant impact on seekers will be minimal and limited to effect that any regulation might have on small entities as contemplated by the the time it will take to become familiar small businesses in any stratum of the RFA or an applicable executive order.

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6.10. Trafficking Victims Protection an outright bar, commenters asserted from UAC. See INA 208(b)(3)(C), 8 Reauthorization Act that even including this as a U.S.C. 1158(b)(3)(C). If UAC are placed Comment: Commenters argued that discretionary factor is contrary to in removal proceedings under section the proposed rule violates the William Congress’s intent. 240 of the Act, 8 U.S.C. 1229a, and raise Commenters stated that, based on the Wilberforce Trafficking Victims asylum claims, immigration judges will proposed regulatory language and Protection Reauthorization Act of 2008 continue to refer the claims to asylum accompanying preamble language, it is (‘‘TVPRA’’), Public Law 110–457, 122 officers pursuant to the TVPRA, unclear whether asylum officers would Stat. 5044, by failing to consider its consistent with the asylum statute and be permitted to render a determination impact on applications for relief procedures in place prior to the that an asylum application is frivolous submitted by UAC. Specifically, promulgation of this rule. See INA for UAC who file defensive applications 208(b)(3)(C), 8 U.S.C 1158(b)(3)(C). commenters cited the TVPRA’s before USCIS in the first instance. By Those asylum officers will determine instruction that ‘‘[a]pplications for permitting the asylum officer to focus whether the UAC are eligible for asylum asylum and other forms of relief from on matters that may be frivolous if the on the basis of this rule. This rule does removal in which an unaccompanied asylum officer identifies indicators of not affect any other procedure or alien child is the principal applicant frivolousness, commenters asserted, the protection implemented by the TVPRA. shall be governed by regulations which interview would become adversarial, in The Departments disagree that the take into account the specialized needs contradiction of Congress’s purpose of rule undermines the spirit of the TVPRA of unaccompanied alien children and granting UAC the non-adversarial, by adding accrual of unlawful presence which address both procedural and child-appropriate setting of an asylum for one year or more as a negative substantive aspects of handling interview for initial review of the discretionary factor. Although the unaccompanied alien children’s cases.’’ asylum application. NPRM may have been unclear on the 8 U.S.C. 1232(d)(8). Commenters Response: As recognized in the point, its citation to INA 212(a)(9)(B) averred that the rule fails to consider proposed rule, UAC 86 are not subjected and (C), 8 U.S.C. 1182(a)(9)(B) and (C), how UAC are subjected to and affected to expedited removal. See 8 U.S.C. 85 FR at 36284, indicated that its intent by persecution and other harm as well 1232(a)(5)(D)(i). Regarding the was for the phrase ‘‘unlawful presence’’ as the particular vulnerabilities of UAC. remainder of the rule, the rule does not to have the same meaning as in INA Moreover, commenters argued that violate the TVPRA. The TVPRA enacted 212(a)(9)(B)(ii) and (iii), 8 U.S.C. the proposed rule violates both the text multiple procedures and protections 1182(a)(9)(B)(ii) and (iii). Under INA and the spirit of the TVPRA by creating specific to UAC that do not apply to 212(a)(9)(B)(iii)(I), 8 U.S.C. additional hurdles that increase the risk other similarly-situated asylum 1182(a)(9)(B)(iii)(I), aliens under the age that UAC will be unable to meaningfully applicants. Although UAC are not of 18, such as UAC, do not accrue participate in the adjudication of their subject to either the safe third country unlawful presence. Thus, commenters’ claims for relief. Specifically, exception or the requirement to file an concerns are unfounded, and the commenters averred that it was unlikely application within one year following Departments are clarifying that point in that Congress would have provided the alien’s arrival in the United States, the final rule. protections to UAC from the bars to INA 208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E), Further, the Departments have asylum related to the one-year filing Congress did not exempt UAC from all concluded that the safeguards in place deadline and the safe third country, bars to asylum eligibility. As a result, for allowing asylum officers to make a only to then allow immigration judges UAC, like all asylum seekers, (1) may finding that an asylum application is to pretermit applications for asylum not apply for asylum if they previously frivolous are sufficient to protect UAC without a hearing. applied for asylum and their application in the application process.87 Even if an One organizational commenter was denied, INA 208(a)(2)(C), 8 U.S.C. asylum officer finds an application is criticized the proposed rule’s lack of 1158(a)(2)(C), and (2) are ineligible for frivolous, the application is referred to ‘‘meaningful discussion’’ regarding how asylum if they are subject to any of the an immigration judge, who provides the new procedures would interact with mandatory bars at section review of the determination. The USCIS’s initial jurisdiction over 208(b)(2)(A)(i)–(vi) of the Act, 8 U.S.C. asylum officer’s determination does not applications for asylum from UAC. 1158(b)(2)(A)(i)–(vi), or if they are render the applicant permanently Commenters also stated that the subject to any additional bars ineligible for immigration benefits proposed rule may result in confusion if implemented pursuant to the Attorney unless the immigration judge or the BIA an immigration judge exercises General’s and Secretary’s authority to also makes a finding of frivolousness. 8 jurisdiction over a UAC’s application establish additional limitations on CFR 208.20(b), 1208.20(b). Further, that is pending before USCIS. If this asylum eligibility by regulation, see INA asylum officers continue to conduct were to occur, commenters alleged, the 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). That child appropriate interviews by taking UAC may be required to submit two Congress did not exempt UAC from all into account age, stage of language applications for asylum and also be bars indicates congressional intent to development, background, and level of required to demonstrate an exception to hold UAC to the same standards to sophistication. See USCIS, Interviewing the one-year filing deadline that would establish eligibility for asylum as other Procedures for Minor Applicants (Aug. not have been applicable to the similarly situated applicants unless 6, 2020), https://www.uscis.gov/ application before USCIS. specifically exempted. humanitarian/refugees-and-asylum/ Commenters also asserted that the Contrary to commenters’ suggestion, asylum/minor-children-applying-for- new discretionary factor regarding this rule does not alter asylum officers’ asylum-by-themselves. accrual of one year or more of unlawful jurisdiction over asylum applications Finally, the Departments note that, for presence would act as a bar to asylum UAC who are not eligible for asylum in direct contradiction of Congress’s 86 UAC are children who (1) have no lawful recognition of the need to exempt UACs immigration status in the United States, (2) are 87 As a practical matter, the Departments note that from the one-year filing deadline. under the age of 18, and (3) do not have a parent the statutory mens rea requirement that a frivolous or legal guardian in the United States or, if in the asylum application be ‘‘knowingly’’ filed will likely Although commenters acknowledged United States, available to provide care and preclude a frivolousness finding against very young that this is a discretionary factor and not physical custody. 6 U.S.C. 279(g)(2). UAC.

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under this rule but who may still be changes in the NPRM would harm alleged that this reliance interest is eligible for withholding of removal asylum seekers. ‘‘further prejudiced’’ by the 30-day under section 241 of the Act, 8 U.S.C. At least one organization claimed that comment period allowed by the 1231, or protection under the CAT the NPRM’s substantive standards Departments, contending that ‘‘in one regulations, DOJ is cognizant of the would have an impermissible swoop, previously eligible applicants ‘‘special circumstances’’ often presented retroactive effect on pending may find themselves ineligible without by juvenile respondents in immigration applications. One organization alleged any warning.’’ proceedings. DOJ’s immigration judges that each standard, including the list of Another organization expressed may make certain modifications to bars to the favorable exercise of particular concern for LGBTQ ordinary courtroom proceedings to discretion, would overrule BIA applicants, claiming that applying the account for juvenile respondents that precedent, attempt to overrule Federal rule’s standards to over 800,000 pending would not be made for adult appellate court precedent, shift burdens applications violates Fifth Amendment respondents. See EOIR, Operating of proof, or otherwise change settled due process rights that apply ‘‘equally to Policies and Procedures Memorandum law. Another organization noted that all people in the United States.’’ One 17–03: Guidelines for Immigration Court there are currently more than 300,000 organization emphasized that the rule Cases Involving Juveniles, Including asylum cases pending before the asylum would apply to individuals, many of Unaccompanied Alien Children 4–6 office and almost 1.2 million cases whom have U.S.-born children, who (Dec. 20, 2017), https://www.justice.gov/ pending before the U.S. immigration have already applied for asylum and are eoir/file/oppm17-03/download; see also courts, many of which include asylum waiting on a hearing or interview. id. at 7 (directing immigration judges to applications. The organization argued Response: Although the Departments take ‘‘special care’’ in cases involving that, if the rule is finalized, the believe that substantial portions of the UAC by, for example, expediting the Departments ‘‘must clarify’’ that its rule are most appropriately classified as consideration of requests for voluntary provisions will not be applied a clarification of existing law rather than departure). retroactively. an alteration of prior substantive law, One commenter claimed that if the In short, the Departments have fully see Levy v. Sterling Holding Co., LLC, rule is enacted with the retroactive 544 F.3d 493, 506 (3d Cir. 2008) (‘‘Thus, considered whether the rule will have provisions intact, it will immediately be any particular impacts on UAC that are where a new rule constitutes a enjoined. clarification—rather than a substantive not already accounted for in existing At least one commenter expressed law or are not addressed in the rule change—of the law as it existed concern that, if the NPRM is applied beforehand, the application of that new itself. The Departments have also fully retroactively, there will be ‘‘mass considered commenters’ concerns. rule to pre-promulgation conduct denials which violate due process,’’ and necessarily does not have an Thus, for the reasons given above, the the Departments will be ‘‘tied up in Departments believe that the rule does impermissible retroactive effect, Federal court for the next decade.’’ At regardless of whether Congress has not have an unlawful impact on minors least one commenter contended that in general or on UAC in particular. delegated retroactive rulemaking power Congress will cease to fund the to the agency.’’ (emphasis in original)), 7. Retroactive Applicability Departments because it will recognize they nevertheless recognize that the that the money will be used to fund the potential retroactivity of the rule was Comment: One organization stated attorney fees of litigants pursuant to the generally that nearly all of the NPRM’s not clear in the NPRM. Accordingly, to Equal Access to Justice Act ‘‘after the extent that the rule changes any provisions are illegally retroactive in countless litigants prevail in their suits existing law, the Departments are effect. Multiple commenters noted that, against [the Departments].’’ electing to make the rule prospective to although the NPRM seeks to make its At least one commenter claimed that, frivolous definition prospective only in because the Supreme Court is currently apply to all asylum applications— application, see 85 FR at 36304, it is attempting to ‘‘reign in the including applications for statutory silent as to whether its other provisions administrative state’’ and Congress is withholding of removal and protection would apply retroactively. As a result, ‘‘fed up’’ with agency waste, the under the CAT regulations—filed on or one organization claimed, the inference Departments are ‘‘signing their own after its effective date and, for purposes is that the Departments intend each of death warrants’’ by seeking to enact the of the changes to the credible fear and the NPRM’s remaining provisions to proposed rule. At least one commenter related screening procedures, and apply to applications that are pending at suggested the Departments’ goal is to reasonable fear review procedures, to all the time the rule becomes effective. The ‘‘[s]hut down legal immigration by aliens apprehended or otherwise organization alleged that this would encountered by DHS on or after the convincing Congress to defund the only 88 violate the presumption against agencies capable of adjudicating effective date. Nevertheless, to the retroactivity, noting that a regulation immigration petitions,’’ suggesting this extent that the rule merely codifies cannot be applied retroactively unless is ‘‘treasonous’’ and claiming that those existing law or authority, nothing in the Congress has provided a clear statement who want to end legal immigration are rule precludes adjudicators from that the agencies may promulgate in the extreme minority. At least one 88 In addition to serving as a bar to refugee regulations with that effect. See INS v. commenter emphasized that legal admission and the granting of asylum, the concept St. Cyr, 533 U.S. 289, 316–17 (2001). immigration is beneficial to the national of firm resettlement also operates as a bar to the The organization also claimed there is economy but suggested this does not adjustment of status of an asylee. INA 209(b)(4), 8 no statute authorizing the Departments matter if those who care ‘‘are not in a U.S.C. 1159(b)(4); 8 CFR 209.2(a)(1)(iv) and 1209.2(a)(1)(iv). Consistent with the prospective to promulgate regulatory changes to position to stop the train before it drives nature of the rule, the Departments will apply the asylum that have retroactive effect, off a cliff.’’ new regulatory definitions of ‘‘firm resettlement’’ in contending the provisions of the NPRM At least one organization claimed that 8 CFR 208.15 and 1208.15 for purposes of INA would either impair rights concerning, the hundreds of thousands of pending 209(b)(4), 8 U.S.C. 1159(b)(4), only to aliens who asylum applications implicate a reliance apply for asylum, are granted asylum, and then or place new disabilities on, asylum subsequently apply for adjustment of status, where applications already filed. The interest in ‘‘the state of the law as it all of these events occur on or after the effective organization alleged that the proposed stands.’’ At least one organization date of this rule.

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applying that existing authority to Approximately 10 months and 266,000 sec. 151, 112 Stat. 2681, 2681–612 pending cases independently of the comments later, the agency issued a through 2618–13 (codified at 5 U.S.C. prospective application of the rule.89 final rule. Litigation swiftly followed, 3346). The Departments decline to respond with a number of States, organizations, Similarly, commenters stated that to commenters’ assertions about and individual plaintiffs variously Acting Secretary Chad Wolf and Chad potential implications that the rule’s alleging that the new definition violates Mizelle, the Senior Official Performing application to pending cases may have, the Constitution, the Administrative the Duties of the General Counsel, both such as ‘‘mass denials’’ of asylum Procedure Act, and the immigration are serving in violation of the FVRA applications and impact on future laws themselves. These plaintiffs have and, accordingly, both lack signature appropriations, as such comments are urged courts to enjoin the rule’s authority that has force or effect. See 5 both unmoored from a reasonable basis enforcement not only as it applies to U.S.C. 3348(d)(1). in fact and wholly speculative due to them, or even to some definable group Response: Neither the NPRM nor this the case-by-case and fact-intensive having something to do with their final rule was signed by Mr. Cuccinelli. nature of many asylum-application claimed injury, but as it applies to Thus, the status of Mr. Cuccinelli’s adjudications. Further, as noted, the anyone.’’). The Departments are also service within the Department is Departments are applying the rule aware of the pernicious effects of immaterial to the lawfulness of this rule. prospectively, so the underlying factual nationwide injunctions. See, e.g., The NPRM and this final rule were premise of the commenters’ concern is Trump v. Hawaii, 138 S. Ct. 2392, 2424– signed by Chad Mizelle, the Senior erroneous. 25 (2018) (Thomas, J. concurring) Official Performing the Duties of the (‘‘Injunctions that prohibit the Executive General Counsel for DHS, and not by 8. Miscellaneous/Other Points Branch from applying a law or policy Ken Cuccinelli. As indicated in the 8.1. Likelihood of Litigation against anyone—often called ‘universal’ proposed rule at Section V.H, Chad Wolf, the Acting Secretary of Homeland Comment: Commenters opposed the or ‘nationwide’ injunctions—have Security, reviewed and approved the rule because it would ‘‘create a flurry of become increasingly common. District proposed rule and delegated the litigation’’ causing ‘‘fundamental courts, including the one here, have signature authority to Mr. Mizelle. aspects of immigration law [to] remain begun imposing universal injunctions without considering their authority to Secretary Wolf is validly acting as uncertain for many years.’’ Secretary of Homeland Security. On Response: The Departments recognize grant such sweeping relief. These April 9, 2019, then-Secretary Nielsen, that litigation, including the potential injunctions are beginning to take a toll on the Federal court system—preventing who was Senate confirmed, used the for an initial nationwide injunction, has authority provided by 6 U.S.C. 113(g)(2) become almost inevitable regarding any legal questions from percolating through the Federal courts, encouraging forum to establish the order of succession for immigration policy or regulation that the Secretary of Homeland Security. does not provide a perceived benefit to shopping, and making every case a national emergency for the courts and This change to the order of succession aliens, and they are aware that litigation applied to any vacancy. This exercise of will likely follow this rule, just as it has for the Executive Branch.’’ (footnote omitted)). The Departments do not the authority to establish an order of others of similar scope. Cf. DHS v. New succession for DHS pursuant to 6 U.S.C. York, 140 S. Ct. 599, 599 (2020) believe, however, that the inevitability of litigation over contested issues is a 113(g)(2) superseded the FVRA and the (Gorsuch, J. concurring in the grant of a order of succession found in Executive stay) (‘‘On October 10, 2018, the sufficient basis to stop them from exercising statutory and regulatory Order 13753, 81 FR 90667 (Dec. 9, Department of Homeland Security began 2016). As a result of this change, and a rulemaking process to define the term prerogatives in furtherance of the law and the policies of the Executive pursuant to 6 U.S.C. 113(g)(2), Kevin K. ‘public charge,’ as it is used in the Branch. Accordingly, the Departments McAleenan, who was Senate-confirmed Nation’s immigration laws. decline the invitation to withdraw the as the Commissioner of CBP, was the rule due to the threat of litigation. next successor and served as Acting 89 For example, the rule states that the Secretary Secretary without time limitation. or Attorney General, subject to an exception, will 8.2. DHS Officials not favorably exercise discretion in adjudicating an Acting Secretary McAleenan asylum application for an alien who has failed to Comment: Commenters also argued subsequently amended the Secretary’s satisfy certain tax obligations. 8 CFR that the proposed rule is procedurally order of succession pursuant to 6 U.S.C. 208.13(d)(2)(i)(E) and 1208.13(d)(2)(i)(E). That invalid due to concerns with the 113(g)(2), placing the Under Secretary provision applies only to asylum applications filed on or after the effective date of the rule. However, authority of multiple DHS officials. for Strategy, Policy, and Plans position the rule does not preclude the consideration of Commenters stated that the rule is third in the order of succession, below unfulfilled tax obligations as a discretionary invalid because of the service of Ken the positions of the Deputy Secretary consideration in adjudicating a pending asylum Cuccinelli at USCIS. For example, and Under Secretary for Management. application based on established case law that may be applied to pending applications. See, e.g., Matter commenters cited L.M.–M. v. Cuccinelli, Because the Deputy Secretary and of A–H–, 23 I&N Dec. at 782–83 (‘‘Moreover, certain 442 F. Supp. 3d 1 (D.D.C. 2020), in Under Secretary for Management additional factors weigh against asylum for support of the argument that ‘‘Mr. positions were vacant when Mr. respondent: Specifically, respondent testified that Cuccinelli’s unlawful appointment McAleenan resigned, Mr. Wolf, as the he received money from overseas for his political work, yet he never filed income tax returns in the invalidates any regulations that might Senate-confirmed Under Secretary for United States and his children nevertheless be put into effect, implemented, or Strategy, Policy, and Plans, was the next received financial assistance from the adopted during his tenure at USCIS.’’ successor and began serving as the Commonwealth of Virginia. Respondent’s apparent Commenters further noted that Mr. Acting Secretary. tax violations and his abuse of a system designed to provide relief to the needy exhibit both a Cuccinelli began serving as the head of Further, because he has been serving disrespect for the rule of law and a willingness to USCIS over one year ago, on June 10, as the Acting Secretary pursuant to an gain advantage at the expense of those who are 2019, despite the 210-day limitation for order of succession established under 6 more deserving.’’ (footnote omitted)). In short, temporary appointments to senate- U.S.C. 113(g)(2), the FVRA’s prohibition existing law will continue to apply to asylum applications filed prior to the effective date of this confirmed positions implemented by on a nominee’s acting service while his rule, regardless of whether that law is altered or the Federal Vacancies Reform Act of or her nomination is pending does not incorporated into the rule. 1998 (‘‘FVRA’’), Public Law 105–277, apply, and Mr. Wolf remains the Acting

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Secretary notwithstanding President of Mr. Wolf’s nomination to the Senate On November 16, 2020, Acting Trump’s September 10 transmission to would have restarted the FVRA’s time Secretary Wolf ratified any and all the Senate of Mr. Wolf’s nomination to limits. See 5 U.S.C. 3346(a)(2). actions involving delegable duties that serve as DHS Secretary. Compare 6 Out of an abundance of caution, and he took between November 13, 2019, U.S.C. 113(a)(1)(A) (cross-referencing to minimize any disruption to DHS and through November 16 2020, including the FVRA without the to the Administration’s goal of the NPRM that is the subject of this ‘‘notwithstanding’’ caveat), with id. maintaining homeland security, on rulemaking. 113(g)(1)–(2) (noting the FVRA November 14, 2020, with Mr. Wolf’s Under section 103(a)(1) of the Act, 8 provisions and specifying, in contrast, nomination still pending in the Senate, U.S.C. 1103(a)(1), the Secretary is that section 113(g) provides for acting Mr. Gaynor exercised the authority of charged with the administration and secretary service ‘‘notwithstanding’’ Acting Secretary that he would have enforcement of the INA and all other those provisions); see also 5 U.S.C. had (in the absence of any governing immigration laws (except for the 3345(b)(1)(B) (restricting acting officer succession order under 6 U.S.C. powers, functions, and duties of the service under section 3345(a), in 113(g)(2)) to designate a new order of President, the Attorney General, and particular, by an official whose succession under 6 U.S.C. 113(g)(2) (the certain consular, diplomatic, and nomination has been submitted to the ‘‘Gaynor Order’’).90 In particular, Mr. Department of State officials). The Senate for permanent service in that Gaynor issued an order of succession Secretary is also authorized to delegate position). with the same ordering of positions his or her authority to any officer or That said, there have been recent listed in former Acting Secretary employee of the agency and to designate challenges to whether Mr. Wolf’s service McAleenan’s November 2019 order. The other officers of the Department to serve is invalid, resting on the erroneous Gaynor Order thus placed the Under as Acting Secretary. See INA 103, 8 contentions that the orders of Secretary for Strategy, Policy, and Plans U.S.C. 1103, and 6 U.S.C. 113(g)(2). The succession issued by former Secretary above the FEMA Administrator in the HSA further provides that every officer Nielsen and former Acting Secretary order of succession. Once the Gaynor of the Department ‘‘shall perform the McAleenan were invalid. The Order was executed, it superseded any functions specified by law for the Departments believe those challenges authority Mr. Gaynor may have had official’s office or prescribed by the are not based on an accurate view of the under the FVRA and confirmed Mr. Secretary.’’ 6 U.S.C. 113(f). Thus, the law. But even if those contentions are Wolf’s authority to continue to serve as designation of the signature authority legally correct—meaning that neither the Acting Secretary. Hence, regardless from Acting Secretary Wolf to Mr. former Secretary Nielsen nor former of whether Mr. Wolf already possessed Mizelle is validly within the Acting Acting Secretary McAleenan issued a authority pursuant to the November 8, Secretary’s authority. valid order of succession under 6 U.S.C. 2019, order of succession effectuated by 8.3. Article I Immigration Courts 113(g)(2)—then the FVRA would have former Acting Secretary McAleenan (as applied, and Executive Order 13753 the Departments have previously Comment: At least one commenter, would have governed the order of concluded), the Gaynor Order provides the former union representing succession for the Secretary of an alternative basis for concluding that immigration judges, expressed a belief Homeland Security from the date of Mr. Wolf currently serves as the Acting that the immigration courts and the BIA Nielsen’s resignation. Secretary.91 should be moved from within DOJ in The FVRA provides an alternative the Executive Branch into an basis for an official to exercise the 90 Mr. Gaynor signed an order that established an independent article I court system.92 functions and duties of the Secretary identical order of succession on September 10, The commenter indicated that such a temporarily in an acting capacity. In 2020, the day Mr. Wolf’s nomination was move would address ‘‘political submitted, but it appears he signed that order before that alternate scenario, under the the nomination was received by the Senate. To influence’’ and ensure ‘‘neutral decision authority of the FVRA, Mr. Wolf would resolve any concern that his September 10 order making.’’ have been ineligible to serve as the was ineffective, Mr. Gaynor signed a new order on Response: Immigration judges are Acting Secretary of DHS after his November 14, 2020. Prior to Mr. Gaynor’s new required to adjudicate cases in an order, the U.S. District Court for the District of New nomination was submitted to the York issued an opinion concluding that Mr. Gaynor ‘‘impartial manner,’’ 8 CFR 1003.10(b); Senate, see 5 U.S.C. 3345(b)(1)(B), and did not have authority to act as Secretary, relying they exercise ‘‘independent judgment Peter Gaynor, the Administrator of the in part on the fact that DHS did not notify Congress and discretion,’’ id.; and they ‘‘should Federal Emergency Management Agency of Administrator Gaynor’s service, as required not be swayed by partisan interests or under 5 U.S.C. 3349(a). See Batalla Vidal v. Wolf, (‘‘FEMA’’), would have—by operation of No. 16CV4756NGGVMS, 2020 WL 6695076, at *9 public clamor,’’ EOIR, Ethics and Executive Order 13753—become eligible (E.D.N.Y. Nov. 14, 2020). The Departments disagree Professionalism Guide for Immigration to exercise the functions and duties of that the FVRA’s notice requirement affects the the Secretary temporarily in an acting validity of an acting officer’s service; nowhere does Cir. 2019). The Acting Secretary of DHS is section 3349 indicate that agency reporting accordingly empowered to exercise the authority of capacity. This is because Executive obligations are tied to an acting officer’s ability to ‘‘the Secretary’’ of DHS to ‘‘designate [an] order of Order 13753 pre-established the serve. succession.’’ 6 U.S.C. 113(g)(2). In addition, this is President’s succession order for DHS 91 On October 9, 2020, the U.S. District Court for the only district court opinion to have reached such when the FVRA applies. Mr. Gaynor the District of Columbia issued an opinion a conclusion about the authority of the Acting indicating that it is likely that section 113(g)(2) Secretary, and the Departments are contesting that would have been the most senior official orders can be issued by only Senate-confirmed determination. eligible to exercise the functions and secretaries of DHS and, thus, that Mr. Gaynor likely 92 On November 2, 2020, the Federal Labor duties of the Secretary under that had no authority to issue a section 113(g)(2) Relations Authority ruled that immigration judges succession order, and thus would have succession order. See Nw. Immigrant Rights Project are management officials for purposes of 5 U.S.C. become the official eligible to act as v. United States Citizenship & Immigration Servs., 7103(a)(11), and, thus, excluded from a bargaining No. CV 19–3283 (RDM), 2020 WL 5995206, at *24 unit pursuant to 5 U.S.C. 7112(b)(1). U.S. Dept. of Secretary once Mr. Wolf’s nomination (D.D.C. Oct. 8, 2020). This decision is incorrect Justice, Exec. Office for Immigration Review and was submitted to the Senate. See 5 because the authority in section 113(g)(2) allows National Association of Immigration Judges, Int’l U.S.C. 3346(a)(2). Then, in this alternate ‘‘the Secretary’’ to designate an order of succession, Fed. of Prof. and Tech. Engineers Judicial Council scenario in which, as assumed above, see 6 U.S.C. 113(g)(2), and an ‘‘acting officer is 2, 71 FLRA No. 207 (2020). That decision vested with the same authority that could be effectively decertified the union that previously there was no valid succession order exercised by the officer for whom he acts.’’ In re represented a bargaining unit of non-supervisory under 6 U.S.C. 113(g)(2), the submission Grand Jury Investigation, 916 F.3d 1047, 1055 (D.C. immigration judges.

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Judges, sec. VIII (Jan. 26, 2011), https:// Departments included severability economy of $100 million or more; a www.justice.gov/sites/default/files/eoir/ language for each affected part of title 8 major increase in costs or prices; or legacy/2013/05/23/Ethicsand CFR. 8 CFR 208.25, 235.6(c), 1003.42(i), significant adverse effects on ProfessionalismGuideforIJs.pdf. To the 1208.25, 1212.13, 1235.6(c). In other competition, employment, investment, extent that a union which represented words, the Departments included these productivity, innovation, or on the immigration judges suggests that the severability provisions to clearly ability of United States-based members of its former bargaining unit illustrate the Departments’ belief that enterprises to compete with foreign- do not engage in ‘‘neutral decision the severance of any affected sections based enterprises in domestic and making’’ or are currently swayed by ‘‘will not impair the function of the export markets. See 5 U.S.C. 804(2). partisan influence in derogation of their statute as a whole’’ and that the ethical obligations, the Departments Departments would have enacted the E. Executive Orders 12866, 13563, and respectfully disagree, and note that the remaining regulatory provisions even 13771 issue is one to be resolved between the without any others. See K Mart Corp. v. This final rule is considered by the former union and the members of its Cartier, Inc., 486 U.S. 281, 294 (1988) Departments to be a ‘‘significant former bargaining unit, rather than (discussing whether an agency’s regulatory action’’ under section 3(f)(4) through a rulemaking. The Departments regulatory provision is severable). The of Executive Order 12866 because it are also unaware of any complaints filed Departments disagree that this raises novel legal or policy issues. by the former union regarding any severability analysis is impacted by the Accordingly, the regulation has been specific immigration judges who have interrelatedness of either the provisions submitted to the Office of Management failed to engage in neutral decision of this rule or the affected parts more and Budget (‘‘OMB’’) for review. making. In short, the commenter’s generally. Indeed, it is reasonable for Executive Orders 12866 and 13563 premise is unfounded in either fact or agencies, when practical, to make direct agencies to assess all costs and law. multiple related changes in a single benefits of available regulatory Otherwise, the recommendation is rulemaking in order to best inform the alternatives and, if regulation is both beyond the scope of this public and facilitate notice and necessary, to select regulatory rulemaking and the Departments’ comment. approaches that maximize net benefits authority. Congress has the sole III. Regulatory Requirements (including potential economic, authority to create an article I court. E.g. environmental, public health, and safety 26 U.S.C. 7441 (‘‘There is hereby A. Administrative Procedure Act effects, distributive impacts, and established, under article I of the This final rule is being published with equity). Executive Order 13563 Constitution of the United States, a a 30-day effective date as required by emphasizes the importance of using the court of record to be known as the the Administrative Procedure Act. 5 best available methods to quantify costs United States Tax Court.’’). Despite this U.S.C. 553(d). and benefits; reducing costs; authority, Congress has provided for a harmonizing rules; and promoting system of administrative hearings for B. Regulatory Flexibility Act flexibility. immigration cases, see, e.g., INA 240, 8 The Departments have reviewed this U.S.C. 1229a (laying out administrative The final rule would change or regulation in accordance with the provide additional clarity for procedures for removal proceedings), Regulatory Flexibility Act, see 5 U.S.C. which the Departments believe should adjudicators across many issues 601 et seq., and, as explained more fully commonly raised by asylum be maintained. Cf. Strengthening and above, have determined that this rule Reforming America’s Immigration Court applications and would potentially will not have a significant economic streamline the overall adjudicatory System: Hearing before the Subcomm. impact on a substantial number of small process for asylum applications. on Border Sec. & Immigration of the S. entities, see 5 U.S.C. 605(b). This Although the regulation will improve Comm. on the Judiciary, 115th Cong. regulation affects only individual aliens the clarity of asylum law and help (2018) (written response to Questions and the Federal government. streamline the credible fear review for the Record of James McHenry, Individuals do not constitute small process, the regulation does not change Director, EOIR) (‘‘The financial costs entities under the Regulatory Flexibility the nature of the role of an immigration and logistical hurdles to implementing Act. See 5 U.S.C. 601(6). an Article I immigration court system judge or an asylum officer during would be monumental and would likely C. Unfunded Mandates Reform Act of proceedings for consideration of delay pending cases even further.’’). 1995 credible fear claims or asylum This rule will not result in the applications. Notably, immigration 9. Severability expenditure by state, local, and tribal judges will retain their existing Comment: Some commenters governments, in the aggregate, or by the authority to review de novo the disagreed with the Departments’ private sector, of $100 million or more determinations made by asylum officers inclusion of severability provisions in in any one year, and it will not in a credible fear proceeding, and will the rule. See 8 CFR 208.25, 235.6(c), significantly or uniquely affect small continue to control immigration court 1003.42(i), 1208.25, 1212.13, 1235.6(c). governments. Therefore, no actions were proceedings. In credible fear For example, at least one commenter deemed necessary under the provisions proceedings, asylum officers will stated that the severability provisions of the Unfunded Mandates Reform Act continue to evaluate the merits of claims conflict with the premise that all the of 1995. for asylum, withholding of removal, and provisions in the rule are related. CAT protection for possible referral to Another commenter disagreed with the D. Congressional Review Act an immigration judge. Although this severability provisions, stating that the The Office of Information and rule expands the bases on which an rule should instead be struck in its Regulatory Affairs has determined that asylum officer may determine that a entirety. this final rule is not a major rule as claim does not merit referral (and, as a Response: The changes made by the defined by section 804 of the consequence, make a negative fear rule function sensibly independent of Congressional Review Act. This rule determination), the alien will still be the other provisions. As a result, the will not result in an annual effect on the able to seek review of that negative fear

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determination before the immigration 45,285 asylum applications. See 85 FR F. Executive Order 12988: Criminal judge. at 36289. An additional 27,112 asylum Justice Reform Immigration judges and asylum applications were abandoned, This rule will not have substantial officers are already trained to consider withdrawn, or otherwise not direct effects on the States, on the all relevant legal issues in assessing a adjudicated. Id. As of January 1, 2020, relationship between the National credible fear claim or asylum USCIS had 338,931 applications for Government and the States, or on the application, and the final rule does not asylum and for withholding of removal distribution of power and implement any changes that would pending. Id. at 36289 & n.44. In FY responsibilities among the various make adjudications more challenging 2019, USCIS received 96,861 asylum levels of government. Therefore, in than those that are already conducted. applications, and approved 19,945 such accordance with section 6 of Executive For example, immigration judges applications. Id. at 36289 & n.45. Order 13132, it is determined that this already consider issues of persecution, The Departments expect that the nexus, particular social group, rule does not have sufficient federalism aliens most likely to be impacted by this implications to warrant the preparation frivolousness, firm resettlement, and rule’s provisions are those who are discretion in assessing the merit of an of a federalism summary impact already unlikely to receive a grant of statement. asylum application, and the provision of asylum under existing law. Assuming clearer standards for considering those DHS places those aliens into expedited G. Paperwork Reduction Act issues in this rule does not add any removal proceedings, the Departments Under the Paperwork Reduction Act operational burden or increase the level have concluded that it will be more of 1995, 44 U.S.C 3501–3512, agencies of operational analysis required for likely that they would receive a more are required to submit to OMB, for adjudication. Accordingly, the prompt adjudication of their claims for review and approval, any reporting Departments do not expect the changes asylum or withholding of removal than requirements inherent in a rule. The to increase the adjudication time for they would under the existing changes made in this final rule required immigration court proceedings regulations. Depending on the DHS to revise USCIS Form I–589, involving asylum applications or for individual circumstances of each case, Application for Asylum and for reviews of negative fear determinations. this rule would mean that such aliens Depending on the manner in which Withholding of Removal, OMB Control would likely not remain in the United DHS exercises its prosecutorial Number 1615–0067. DOJ and DHS States—for years, potentially—pending discretion for aliens potentially subject invited public comments on the impact resolution of their claims. to expedited removal, the facts and to the proposed collection of circumstances of each individual alien’s An alien who is ineligible for asylum information for 60 days. See 85 FR at situation, DHS’s interpretation or the may still be eligible to apply for the 36290. protection of withholding of removal relevant regulations, and application of DOJ and DHS received multiple under section 241(b)(3) of the Act, 8 those regulations by individual comments on the information collection U.S.C. 1231(b)(3), or withholding of adjudicators, the changes may decrease impacts of the proposed rule. removal under regulations issued the number of cases of aliens subject to Commenters expressed concern that the pursuant to the legislation expedited removal that result in a full proposed revisions significantly implementing U.S. obligations under hearing on an application for asylum. In increase the time and cost burdens for Article 3 of the CAT. See INA 241(b)(3), all cases, however, an alien will retain aliens seeking protection from 8 U.S.C. 1231(b)(3); 8 CFR 208.16, the opportunity to request immigration persecution and torture, as well as 208.17 through 208.18, 1208.16, and judge review of DHS’s initial fear adding to the burden of immigration 1208.17 through 1208.18. For those determination. lawyers, asylum officers, advocacy aliens barred from asylum under this The Departments are implementing organizations, and immigration judges. rule who would otherwise be positively changes that may affect any alien DHS and DOJ have summarized all of adjudicated for asylum, it is possible subject to expedited removal who makes the comments related to information they would qualify for withholding a fear claim and any alien who applies collection and have provided responses (provided a bar to withholding did not for asylum, statutory withholding of in a document titled ‘‘Form I–589 Public apply separate and apart from this rule). removal, or protection under the CAT Comments and Response Matrix,’’ To the extent there are any direct regulations. The Departments note that which is posted in the rulemaking impacts of this rule, they would almost these changes are likely to result in docket EOIR–2020–0003 at https:// exclusively fall on that population. fewer asylum grants annually due to www.regulations.gov/. As a result of the Further, the full extent of the impacts on clarifications regarding the significance public comments, DHS has increased this population is unclear and would of discretionary considerations and the burden estimate for the Form I–589 depend on the specific circumstances changes to the definition of ‘‘firm and has updated the supporting and personal characteristics of each resettlement.’’ However, because asylum statement submitted to OMB alien, and neither DHS nor DOJ collects applications are inherently fact-specific, accordingly. The supporting statement such data at such a level of granularity. and because there may be multiple can be found at https:// Overall, the Departments assess that bases for denying an asylum www.reginfo.gov/. The updated abstract operational efficiencies will likely result application, neither DOJ nor DHS can is as follows: quantify precisely the expected from these changes, which could, inter decrease. As of September 30, 2020, alia, reduce the number of meritless USCIS Form I–589 EOIR had 589,276 cases pending with claims before the immigration courts, Overview of Information Collection an asylum application. EOIR, Workload provide the Departments with the and Adjudication Statistics: Total ability to more promptly grant relief or (1) Type of Information Collection: Asylum Applications (Oct. 13, 2020), protection to qualifying aliens, and Revision of a Currently Approved https://www.justice.gov/eoir/page/file/ ensure that those who do not qualify for Collection. 1106366/download. In FY 2019, at the relief or protection are removed more (2) Title of the Form/Collection: immigration court level, EOIR granted efficiently than they are under current Application for Asylum and for 18,816 asylum applications and denied rules. Withholding of Removal.

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(3) Agency form number, if any, and 8 CFR Part 1003 with generalized violence or a high the applicable component of the DHS Administrative practice and crime rate; being the subject of a sponsoring the collection: I–589; USCIS. procedure, Aliens, Immigration, Legal recruitment effort by criminal, terrorist, (4) Affected public who will be asked services, Organization and functions or persecutory groups; the targeting of or required to respond, as well as a brief (Government agencies). the applicant for criminal activity for abstract: Primary: Individuals or financial gain based on perceptions of households. Form I–589 is necessary to 8 CFR Part 1208 wealth or affluence; interpersonal determine whether an alien applying for Administrative practice and disputes of which governmental asylum or withholding of removal in the procedure, Aliens, Immigration, authorities were unaware or United States is classified as a refugee Reporting and recordkeeping uninvolved; private criminal acts of and is eligible to remain in the United requirements. which governmental authorities were States. unaware or uninvolved; past or present (5) An estimate of the total number of 8 CFR Part 1235 terrorist activity or association; past or respondents and the amount of time Administrative practice and present persecutory activity or estimated for an average respondent to procedure, Aliens, Immigration, association; or status as an alien respond: The estimated total number of Reporting and recordkeeping returning from the United States. This respondents for the information requirements. list is nonexhaustive, and the substance collection I–589 is approximately 8 CFR Part 1244 of the alleged particular social group, 114,000, and the estimated hourly rather than the precise form of its 93 burden per response is 18.5 hours. Administrative practice and delineation, shall be considered in The estimated number of respondents procedure, Aliens, Immigration, determining whether the group falls providing biometrics is 110,000, and the Reporting and recordkeeping within one of the categories on the list. estimated hourly burden per response is requirements. No alien shall be found to be a refugee 1.17 hours. DEPARTMENT OF HOMELAND or have it decided that the alien’s life or (6) An estimate of the total public freedom would be threatened based on burden (in hours) associated with the SECURITY membership in a particular social group collection: The total estimated annual Accordingly, for the reasons set forth in any case unless that person burden associated with this collection of in the preamble, 8 CFR parts 208 and articulates on the record, or provides a information in hours is 2,237,700. 235 are amended as follows: (7) An estimate of the total public basis on the record for determining, the burden (in cost) associated with the PART 208—PROCEDURES FOR definition and boundaries of the alleged collection: The estimated total annual ASYLUM AND WITHHOLDING OF particular social group. A failure to cost burden associated with this REMOVAL define, or provide a basis for defining, collection of information is a formulation of a particular social $70,406,400.94 ■ 1. The authority citation for part 208 group before an immigration judge shall continues to read as follows: waive any such claim for all purposes H. Signature Authority: 8 U.S.C. 1101, 1103, 1158, 1226, under the Act, including on appeal. Any The Acting Secretary of Homeland 1252, 1282; Title VII of Public Law 110–229; waived claim on this basis shall not Security, Chad F. Wolf, having reviewed 8 CFR part 2. serve as the basis for any motion to reopen or reconsider for any reason, and approved this document, has ■ 2. Amend § 208.1 by adding including a claim of ineffective delegated the authority to electronically paragraphs (c) through (g) to read as assistance of counsel unless the alien sign this document to Chad R. Mizelle, follows: who is the Senior Official Performing complies with the procedural the Duties of the General Counsel for § 208.1 General. requirements for such a motion and DHS, for purposes of publication in the * * * * * demonstrates that counsel’s failure to Federal Register. (c) Particular social group. For define, or provide a basis for defining, a formulation of a particular social List of Subjects purposes of adjudicating an application for asylum under section 208 of the Act group constituted egregious conduct. 8 CFR Part 208 or an application for withholding of (d) Political opinion. For purposes of Administrative practice and removal under section 241(b)(3) of the adjudicating an application for asylum procedure, Aliens, Immigration, Act, a particular social group is one that under section 208 of the Act or an Reporting and recordkeeping is based on an immutable or application for withholding of removal requirements. fundamental characteristic, is defined under section 241(b)(3) of the Act, a with particularity, and is recognized as political opinion is one expressed by or 8 CFR Part 235 socially distinct in the society at imputed to an applicant in which the Administrative practice and question. Such a particular social group applicant possesses an ideal or procedure, Aliens, Immigration, cannot be defined exclusively by the conviction in support of the furtherance Reporting and recordkeeping alleged persecutory acts or harms and of a discrete cause related to political requirements. must also have existed independently of control of a State or a unit thereof. The the alleged persecutory acts or harms Secretary, in general, will not favorably 93 This estimate is higher than the estimate that form the basis of the claim. The adjudicate claims of aliens who claim a provided in the NPRM because USCIS reevaluated Secretary, in general, will not favorably fear of persecution on account of a its projections and determined that the hourly burden per response was likely to be higher than adjudicate claims of aliens who claim a political opinion defined solely by USCIS had initially estimated, which also increased fear of persecution on account of generalized disapproval of, the total estimated public burden (in hours). membership in a particular social group disagreement with, or opposition to 94 This estimate is higher than the estimate consisting of or defined by the following criminal, terrorist, gang, guerilla, or provided in the NPRM because USCIS reevaluated its projections in response to public comments circumstances: Past or present criminal other non-state organizations absent suggesting that the monetary cost was likely to be activity or association (including gang expressive behavior in furtherance of a higher than USCIS had initially estimated. membership); presence in a country cause against such organizations related

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to efforts by the State to control such following list of nonexhaustive § 208.5 Special duties toward aliens in organizations or behavior that is circumstances: custody of DHS. antithetical to or otherwise opposes the (1) Interpersonal animus or (a) General. When an alien in the ruling legal entity of the State or a legal retribution; custody of DHS requests asylum or sub-unit of the State. A person who has (2) Interpersonal animus in which the withholding of removal, or expresses a been forced to abort a pregnancy or to alleged persecutor has not targeted, or fear of persecution or harm upon return undergo involuntary sterilization, or manifested an animus against, other to his or her country of origin or to who has been persecuted for failure or members of an alleged particular social agents thereof, DHS shall make available refusal to undergo such a procedure or group in addition to the member who the appropriate application forms and for other resistance to a coercive has raised the claim at issue; shall provide the applicant with the population control program, shall be information required by section deemed to have been persecuted on (3) Generalized disapproval of, 208(d)(4) of the Act, including in the account of political opinion, and a disagreement with, or opposition to case of an alien who is in custody with person who has a well-founded fear that criminal, terrorist, gang, guerilla, or a positive credible fear or reasonable he or she will be forced to undergo such other non-state organizations absent fear determination under 8 CFR 208.30 a procedure or subject to persecution for expressive behavior in furtherance of a or 208.31, and except in the case of an such failure, refusal, or resistance shall discrete cause against such alien who is in custody pending a be deemed to have a well-founded fear organizations related to control of a credible fear determination under 8 CFR of persecution on account of political State or expressive behavior that is 208.30 or a reasonable fear opinion. antithetical to the State or a legal unit determination pursuant to 8 CFR of the State; (e) Persecution. For purposes of 208.31. * * * screening or adjudicating an application (4) Resistance to recruitment or * * * * * coercion by guerilla, criminal, gang, for asylum under section 208 of the Act ■ 5. Amend § 208.6 by revising terrorist or other non-state or an application for withholding of paragraphs (a) and (b) and adding organizations; removal under section 241(b)(3) of the paragraphs (d) and (e) to read as follows: Act, persecution requires an intent to (5) The targeting of the applicant for target a belief or characteristic, a severe criminal activity for financial gain based § 208.6 Disclosure to third parties. level of harm, and the infliction of a on wealth or affluence or perceptions of (a) Information contained in or severe level of harm by the government wealth or affluence; pertaining to any application for refugee of a country or by persons or an (6) Criminal activity; admission, asylum, withholding of organization that the government was (7) Perceived, past or present, gang removal under section 241(b)(3) of the unable or unwilling to control. For affiliation; or, Act, or protection under regulations purposes of evaluating the severity of issued pursuant to the Convention (8) Gender. the level of harm, persecution is an Against Torture’s implementing extreme concept involving a severe level (g) Evidence based on stereotypes. For legislation, records pertaining to any of harm that includes actions so severe purposes of adjudicating an application credible fear determination conducted that they constitute an exigent threat. for asylum under section 208 of the Act pursuant to § 208.30, and records Persecution does not encompass the or an application for withholding of pertaining to any reasonable fear generalized harm that arises out of civil, removal under section 241(b)(3) of the determination conducted pursuant to criminal, or military strife in a country, Act, evidence offered in support of such § 208.31, shall not be disclosed without nor does it encompass all treatment that an application which promotes cultural the written consent of the applicant, the United States regards as unfair, stereotypes about a country, its except as permitted by this section or at offensive, unjust, or even unlawful or inhabitants, or an alleged persecutor, the discretion of the Secretary. unconstitutional. It does not include including stereotypes based on race, (b) The confidentiality of other intermittent harassment, including brief religion, nationality, or gender, shall not records kept by DHS and the Executive detentions; threats with no actual effort be admissible in adjudicating that Office for Immigration Review that to carry out the threats, except that application, provided that nothing in indicate that a specific alien has applied particularized threats of severe harm of this paragraph shall be construed as for refugee admission, asylum, an immediate and menacing nature prohibiting the submission of evidence withholding of removal under section made by an identified entity may that an alleged persecutor holds 241(b)(3) of the Act, or protection under constitute persecution; or, non-severe stereotypical views of the applicant. regulations issued pursuant to the economic harm or property damage, ■ 3. Amend § 208.2 by adding paragraph Convention Against Torture’s though this list is nonexhaustive. The (c)(1)(ix) to read as follows: implementing legislation, or has existence of laws or government policies received a credible fear or reasonable that are unenforced or infrequently § 208.2 Jurisdiction. fear interview, or received a credible enforced do not, by themselves, * * * * * fear or reasonable fear review shall also constitute persecution, unless there is (c) * * * be protected from disclosure, except as credible evidence that those laws or (1) * * * permitted in this section. DHS will policies have been or would be applied coordinate with the Department of State (ix) An alien found to have a credible to an applicant personally. to ensure that the confidentiality of fear of persecution, reasonable those records is maintained if they are (f) Nexus. For purposes of possibility of persecution, or reasonable adjudicating an application for asylum transmitted to Department of State possibility of torture in accordance with offices in other countries. under section 208 of the Act or an §§ 208.30, 1003.42, or 1208.30. application or withholding of removal * * * * * under section 241(b)(3) of the Act, the * * * * * (d)(1) Any information contained in Secretary, in general, will not favorably ■ 4. Amend § 208.5 by revising the first an application for refugee admission, adjudicate the claims of aliens who sentence of paragraph (a) to read as asylum, withholding of removal under claim persecution based on the follows: section 241(b)(3) of the Act, or

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protection under regulations issued (b)(3)(ii) and adding paragraphs United States unless such entry or pursuant to the Convention Against (b)(3)(iii) and (iv) and (d) to read as attempted entry was made in immediate Torture’s implementing legislation, any follows: flight from persecution in a contiguous relevant and applicable information country or unless such entry or § 208.13 Establishing asylum eligibility. supporting that application, any attempted entry was made by an alien information regarding an alien who has * * * * * under the age of 18 at the time the entry filed such an application, and any (b) * * * or attempted entry was made; relevant and applicable information (3) Reasonableness of internal (ii) The failure of an alien to apply for regarding an alien who has been the relocation. For purposes of protection from persecution or torture in subject of a reasonable fear or credible determinations under paragraphs at least one country outside the alien’s fear determination may be disclosed: (b)(1)(i) and (ii) and (b)(2) of this country of citizenship, nationality, or section, adjudicators should consider (i) As part of an investigation or last lawful habitual residence through the totality of the relevant adjudication of the merits of that which the alien transited before entering circumstances regarding an applicant’s application or of any other application the United States unless: prospects for relocation, including the under the immigration laws, (A) The alien received a final size of the country of nationality or last (ii) As part of any State or Federal judgment denying the alien protection habitual residence, the geographic locus criminal investigation, proceeding, or in such country; of the alleged persecution, the size, prosecution; (B) The alien demonstrates that he or reach, or numerosity of the alleged (iii) Pursuant to any State or Federal she satisfies the definition of ‘‘victim of persecutor, and the applicant’s mandatory reporting requirement; a severe form of trafficking in persons’’ demonstrated ability to relocate to the (iv) To deter, prevent, or ameliorate provided in 8 CFR 214.11; or United States in order to apply for (C) Such country or all such countries the effects of child abuse; asylum. (v) As part of any proceeding arising were, at the time of the transit, not under the immigration laws, including * * * * * parties to the 1951 Convention relating (ii) In cases in which the persecutor proceedings arising under the Act; and to the Status of Refugees, the 1967 is a government or is government- (vi) As part of the Government’s Protocol relating to the Status of sponsored, it shall be presumed that defense of any legal action relating to Refugees, or the Convention Against internal relocation would not be the alien’s immigration or custody Torture and Other Cruel, Inhuman or reasonable, unless DHS establishes by a status including petitions for review Degrading Treatment or Punishment; preponderance of the evidence that, filed in accordance with 8 U.S.C. 1252. and under all the circumstances, it would be (2) If information may be disclosed (iii) An alien’s use of fraudulent reasonable for the applicant to relocate. under paragraph (d)(1) of this section, documents to enter the United States, (iii) Regardless of whether an unless the alien arrived in the United the disclosure provisions in paragraphs applicant has established persecution in (a), (b), and (c) of this section shall not States by air, sea, or land directly from the past, in cases in which the the applicant’s home country without apply. persecutor is not the government or a (e) Nothing in this section shall be transiting through any other country. government-sponsored actor, or (2)(i) The Secretary, except as construed as prohibiting the disclosure otherwise is a private actor, there shall provided in paragraph (d)(2)(ii) of this of information contained in an be a presumption that internal section, will not favorably exercise application for refugee admission, relocation would be reasonable unless discretion under section 208 of the Act asylum, withholding of removal under the applicant establishes, by a for an alien who: section 241(b)(3)(B) of the Act, or preponderance of the evidence, that it (A) Immediately prior to his arrival in protection under regulations issued would be unreasonable to relocate. the United States or en route to the pursuant to the Convention Against (iv) For purposes of determinations United States from the alien’s country of Torture’s implementing legislation, under paragraphs (b)(3)(ii) and (iii) of citizenship, nationality, or last lawful information supporting that application, this section, persecutors who are private habitual residence, spent more than 14 information regarding an alien who has actors—including persecutors who are days in any one country unless: filed such an application, or information gang members, officials acting outside (1) The alien demonstrates that he or regarding an alien who has been the their official capacity, family members she applied for protection from subject of a reasonable fear or credible who are not themselves government persecution or torture in such country fear determination: officials, or neighbors who are not and the alien received a final judgment (1) Among employees and officers of themselves government officials—shall denying the alien protection in such the Department of Justice, the not be considered to be persecutors who country; Department of Homeland Security, the are the government or government- (2) The alien demonstrates that he or Department of State, the Department of sponsored absent evidence that the she satisfies the definition of ‘‘victim of Health and Human Services, the government sponsored the persecution. a severe form of trafficking in persons’’ Department of Labor, or a U.S. national * * * * * provided in 8 CFR 214.11; or security agency having a need to (d) Discretion. Factors that fall short (3) Such country was, at the time of examine the information for an official of grounds of mandatory denial of an the transit, not a party to the 1951 purpose; or asylum application may constitute Convention relating to the Status of (2) Where a United States Government discretionary considerations. Refugees, the 1967 Protocol relating to employee or contractor has a good faith (1) The following are significant the Status of Refugees, or the and reasonable belief that disclosure is adverse discretionary factors that a Convention against Torture and Other necessary to prevent the commission of decision-maker shall consider, if Cruel, Inhuman or Degrading Treatment a crime, the furtherance of an ongoing applicable, in determining whether an or Punishment; crime, or to ameliorate the effects of a alien merits a grant of asylum in the (B) Transits through more than one crime. exercise of discretion: country between his country of ■ 6. Amend § 208.13 by revising (i) An alien’s unlawful entry or citizenship, nationality, or last habitual paragraphs (b)(3) introductory text and unlawful attempted entry into the residence and the United States unless:

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(1) The alien demonstrates that he or paragraph (d)(2)(i) of this section are (ii) The alien was a citizen of a she applied for protection from present, the Secretary, in extraordinary country other than the one where the persecution or torture in at least one circumstances, such as those involving alien alleges a fear of persecution, the such country and received a final national security or foreign policy alien was present in that country after judgment denying the alien protection considerations, or cases in which an departing his country of nationality or in that country; alien, by clear and convincing evidence, last habitual residence and prior to (2) The alien demonstrates that he or demonstrates that the denial or referral arrival in or entry into the United States, she satisfies the definition of ‘‘victim of (which may result in the denial by an and the alien renounced that citizenship a severe form of trafficking in persons’’ immigration judge) of the application after arriving in the United States. provided in 8 CFR 214.11; or for asylum would result in exceptional (b) The provisions of 8 CFR 1240.8(d) (3) All such countries were, at the and extremely unusual hardship to the shall apply when the evidence of record time of the transit, not parties to the alien, may favorably exercise discretion indicates that the firm resettlement bar 1951 Convention relating to the Status under section 208 of the Act, may apply. In such cases, the alien shall of Refugees, the 1967 Protocol relating notwithstanding the applicability of bear the burden of proving the bar does to the Status of Refugees, or the paragraph (d)(2)(i). Depending on the not apply. Either DHS or the Convention against Torture and Other gravity of the circumstances underlying immigration judge may raise the issue of Cruel, Inhuman or Degrading Treatment the application of paragraph (d)(2)(i), a the application of the firm resettlement or Punishment; showing of extraordinary circumstances bar based on the evidence of record. The (C) Would otherwise be subject to might still be insufficient to warrant a firm resettlement of an alien’s parent(s) § 208.13(c) but for the reversal, vacatur, favorable exercise of discretion under shall be imputed to the alien if the expungement, or modification of a section 208 of the Act. resettlement occurred before the alien turned 18 and the alien resided with the conviction or sentence, unless the alien ■ 7. Revise § 208.15 to read as follows: was found not guilty; alien’s parents at the time of the firm (D) Accrued more than one year of § 208.15 Definition of ‘‘firm resettlement.’’ resettlement unless the alien establishes unlawful presence in the United States, (a) An alien is considered to be firmly that he or she could not have derived as defined in sections 212(a)(9)(B)(ii) resettled if, after the events giving rise any permanent legal immigration status and (iii) of the Act, prior to filing an to the alien’s asylum claim: or any non-permanent but indefinitely application for asylum; (1) The alien resided in a country renewable legal immigration status (E) At the time the asylum application through which the alien transited prior (including asylee, refugee, or similar is filed with DHS has: to arriving in or entering the United status but excluding status such as of a (1) Failed to timely file (or timely file States and— tourist) from the alien’s parent. a request for an extension of time to file) ■ (i) Received or was eligible for any 8. Amend § 208.16 by revising any required Federal, State, or local permanent legal immigration status in paragraphs (b)(3) introductory text and income tax returns; that country; (b)(3)(ii) and adding paragraphs (2) Failed to satisfy any outstanding (ii) Resided in such a country with (b)(3)(iii) and (iv) to read as follows: Federal, State, or local tax obligations; any non-permanent but indefinitely or § 208.16 Withholding of removal under (3) Has income that would result in renewable legal immigration status section 241(b)(3)(B) of the Act and tax liability under section 1 of the (including asylee, refugee, or similar withholding of removal under the Convention Against Torture. Internal Revenue Code of 1986 and that status but excluding status such as of a was not reported to the Internal tourist); or * * * * * Revenue Service; (iii) Resided in such a country and (b)(3) Reasonableness of internal (F) Has had two or more prior asylum could have applied for and obtained any relocation. For purposes of applications denied for any reason; non-permanent but indefinitely determinations under paragraphs (b)(1) (G) Has withdrawn a prior asylum renewable legal immigration status in and (2) of this section, adjudicators application with prejudice or been that country; should consider the totality of the found to have abandoned a prior asylum (2) The alien physically resided relevant circumstances regarding an application; voluntarily, and without continuing to applicant’s prospects for relocation, (H) Failed to attend an interview suffer persecution or torture, in any one including the size of the country of regarding his asylum application with country for one year or more after nationality or last habitual residence, DHS, unless the alien shows by a departing his country of nationality or the geographic locus of the alleged preponderance of the evidence that: last habitual residence and prior to persecution, the size, reach, or (1) Exceptional circumstances arrival in or entry into the United States, numerosity of the alleged persecutor, prevented the alien from attending the provided that time spent in Mexico by and the applicant’s demonstrated ability interview; or an alien who is not a native or citizen to relocate to the United States in order (2) The interview notice was not of Mexico solely as a direct result of to apply for withholding of removal. mailed to the last address provided by being returned to Mexico pursuant to * * * * * the alien or his or her representative and section 235(b)(2)(C) of the Act or of (ii) In cases in which the persecutor neither the alien nor the alien’s being subject to metering would not be is a government or is government- representative received notice of the counted for purposes of this paragraph; sponsored, it shall be presumed that interview; or or internal relocation would not be (I) Was subject to a final order of (3)(i) The alien is a citizen of a reasonable, unless DHS establishes by a removal, deportation, or exclusion and country other than the one where the preponderance of the evidence that, did not file a motion to reopen to seek alien alleges a fear of persecution and under the totality of the circumstances, asylum based on changed country the alien was present in that country it would be reasonable for the applicant conditions within one year of those after departing his country of nationality to relocate. changes in country conditions. or last habitual residence and prior to (iii) Regardless of whether an (ii) Where one or more of the adverse arrival in or entry into the United States; applicant has established persecution in discretionary factors set forth in or the past, in cases in which the

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persecutor is not the government or a such activity. Such awareness requires a frivolousness as described in paragraph government-sponsored actor, or finding of either actual knowledge or 1208.20(c). otherwise is a private actor, there shall willful blindness. Willful blindness (c) For applications filed on or after be a presumption that internal means that the public official acting in January 11, 2021, an asylum application relocation would be reasonable unless an official capacity or other person is frivolous if it: the applicant establishes, by a acting in an official capacity was aware (1) Contains a fabricated material preponderance of the evidence, that it of a high probability of activity element; would be unreasonable to relocate. constituting torture and deliberately (2) Is premised upon false or (iv) For purposes of determinations avoided learning the truth; it is not fabricated evidence unless the under paragraphs (b)(3)(ii) and (iii) of enough that such public official acting application would have been granted this section, persecutors who are private in an official capacity or other person without the false or fabricated evidence; actors, including but not limited to acting in an official capacity was (3) Is filed without regard to the persecutors who are gang members, mistaken, recklessly disregarded the merits of the claim; or public officials who are not acting under truth, or negligently failed to inquire. In (4) Is clearly foreclosed by applicable color of law, or family members who are order for a public official to breach his law. not themselves government officials or or her legal responsibility to intervene (d) If the alien has been provided the neighbors who are not themselves to prevent activity constituting torture, warning required by section government officials, shall not be the official must have been charged with 208(d)(4)(A) of the Act, he or she need considered to be persecutors who are preventing the activity as part of his or not be given any additional or further the government or government- her duties and have failed to intervene. opportunity to account for any issues sponsored absent evidence that the No person will be deemed to have with his or her claim prior to the entry government sponsored the persecution. breached a legal responsibility to of a frivolousness finding. * * * * * intervene if such person is unable to (e) An asylum application may be intervene, or if the person intervenes ■ 9. Amend § 208.18 by revising found frivolous even if it was untimely but is unable to prevent the activity that filed. paragraphs (a)(1) and (7) to read as constitutes torture. follows: (f) A withdrawn asylum application * * * * * may also be found frivolous unless: § 208.18 Implementation of the Convention ■ 10. Revise § 208.20 to read as follows: (1) The alien wholly disclaims the Against Torture. application and withdraws it with (a) * * * § 208.20 Determining if an asylum prejudice; application is frivolous. (1) Torture is defined as any act by (2) The alien is eligible for and agrees which severe pain or suffering, whether (a) For applications filed on or after to accept voluntary departure for a physical or mental, is intentionally April 1, 1997, and before January 11, period of no more than 30 days inflicted on a person for such purposes 2021, an applicant is subject to the pursuant to section 240B(a) of the Act; as obtaining from him or her or a third provisions of section 208(d)(6) of the (3) The alien withdraws any and all person information or a confession, Act only if the alien received the notice other applications for relief or punishing him or her for an act he or required by section 208(d)(4)(A) of the protection with prejudice; and she or a third person has committed or Act and a final order by an immigration (4) The alien waives his right to is suspected of having committed, or judge or the Board of Immigration appeal and any rights to file, for any Appeals specifically finds that the alien intimidating or coercing him or her or reason, a motion to reopen or knowingly filed a frivolous asylum a third person, or for any reason based reconsider. application. An application is frivolous on discrimination of any kind, when (g) For purposes of this section, a if: finding that an alien knowingly filed a such pain or suffering is inflicted by or (1) Any of the material elements in at the instigation of or with the consent the asylum application is deliberately frivolous asylum application shall not or acquiescence of a public official fabricated, and the immigration judge or preclude the alien from seeking acting in an official capacity or other the Board is satisfied that the applicant, withholding of removal under section person acting in an official capacity. during the course of the proceedings, 241(b)(3) of the Act or protection under Pain or suffering inflicted by a public has had sufficient opportunity to the regulations issued pursuant to the official who is not acting under color of account for any discrepancies or Convention Against Torture’s law shall not constitute pain or suffering implausible aspects of the claim. implementing legislation. inflicted by or at the instigation of or (2) Paragraphs (b) through (f) of this ■ 11. Add § 208.25 to read as follows: with the consent or acquiescence of a section shall only apply to applications § 208.25 Severability. public official acting in an official filed on or after January 11, 2021. capacity or other person acting in an (b) For applications filed on or after The provisions of part 208 are official capacity, although a different January 11, 2021, an asylum officer may separate and severable from one public official acting in an official determine that the applicant knowingly another. In the event that any provision capacity or other person acting in an filed a frivolous asylum application and in part 208 is stayed, enjoined, not official capacity could instigate, consent may refer the applicant to an implemented, or otherwise held invalid, to, or acquiesce in the pain or suffering immigration judge on that basis, so long the remaining provisions shall inflicted by the public official who is as the applicant has received the notice nevertheless be implemented as an not acting under color of law. required by section 208(d)(4)(A) of the independent rule and continue in effect. * * * * * Act. For any application referred to an ■ 12. Amend § 208.30 by: (7) Acquiescence of a public official immigration judge, an asylum officer’s ■ a. Revising the section heading; and requires that the public official, prior to determination that an application is ■ b. Revising paragraphs (a), (b), (c), (d) the activity constituting torture, have frivolous will not render an applicant introductory text, (d)(1) and (2), (d)(5) awareness of such activity and permanently ineligible for immigration and (6), (e) introductory text, (e)(1) thereafter breach his or her legal benefits unless an immigration judge or through (5), (e)(6) introductory text, responsibility to intervene to prevent the Board makes a finding of (e)(6)(ii), (e)(6)(iii) introductory text,

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(e)(6)(iv), the first sentence of paragraph and determination, if such spouse or of the Act. ‘‘Significant possibility’’ (e)(7) introductory text, and paragraphs child: means a substantial and realistic (e)(7)(ii), (f), and (g). (1) Arrived in the United States possibility of succeeding. When making The revisions read as follows: concurrently with the principal alien; such a determination, the asylum officer and shall take into account: § 208.30 Credible fear of persecution, (2) Desires to be included in the (i) The credibility of the statements reasonable possibility of persecution, and principal alien’s determination. made by the alien in support of the reasonable possibility of torture determinations involving stowaways and However, any alien may have his or her alien’s claim; applicants for admission who are found evaluation and determination made (ii) Such other facts as are known to inadmissible pursuant to section separately, if he or she expresses such the officer, including whether the alien 212(a)(6)(C) or 212(a)(7) of the Act, whose a desire. could avoid any future harm by entry is limited or suspended under section (d) Interview. The asylum officer will relocating to another part of his or her 212(f) or 215(a)(1) of the Act, or who failed conduct the interview in a country, if under all the circumstances to apply for protection from persecution in nonadversarial manner, separate and it would be reasonable to expect the a third country where potential relief is apart from the general public. The alien to do so; and available while en route to the United purpose of the interview shall be to (iii) The applicability of any bars to States. elicit all relevant and useful information being able to apply for asylum or to (a) Jurisdiction. The provisions of this bearing on whether the alien can eligibility for asylum set forth at section subpart B apply to aliens subject to establish a credible fear of persecution, 208(a)(2)(B)–(C) and (b)(2) of the Act, sections 235(a)(2) and 235(b)(1) of the reasonable possibility of persecution, or including any bars established by Act. Pursuant to section 235(b)(1)(B) of reasonable possibility of torture. The regulation under section 208(b)(2)(C) of the Act, DHS has exclusive jurisdiction asylum officer shall conduct the the Act. to make the determinations described in interview as follows: (2) An alien establishes a reasonable this subpart B. Except as otherwise (1) If the officer conducting the possibility of persecution if there is a provided in this subpart B, paragraphs interview determines that the alien is reasonable possibility that the alien (b) through (g) of this section are the unable to participate effectively in the would be persecuted on account of his exclusive procedures applicable to interview because of illness, fatigue, or or her race, religion, nationality, stowaways and applicants for admission other impediments, the officer may membership in a particular social group, who are found inadmissible pursuant to reschedule the interview. or political opinion in the country of section 212(a)(6)(C) or 212(a)(7) of the (2) At the time of the interview, the removal. When making such Act and who receive fear interviews, asylum officer shall verify that the alien determination, the officer will take into determinations, and reviews under has received in writing the relevant account: section 235(b)(1)(B) of the Act. Prior to information regarding the fear (i) The credibility of the statements January 1, 2030, an alien physically determination process. The officer shall made by the alien in support of the present in or arriving in the also determine that the alien has an alien’s claim; Commonwealth of the Northern Mariana understanding of the fear determination (ii) Such other facts as are known to Islands is ineligible to apply for asylum process. the officer, including whether the alien and may only establish eligibility for * * * * * could avoid a future threat to his or her withholding of removal pursuant to (5) If the alien is unable to proceed life or freedom by relocating to another section 241(b)(3) of the Act or effectively in English, and if the asylum part of the proposed country of removal withholding or deferral of removal officer is unable to proceed competently and, under all circumstances, it would under the regulations issued pursuant to in a language the alien speaks and be reasonable to expect the applicant to the Convention Against Torture’s understands, the asylum officer shall do so; and implementing legislation. arrange for the assistance of an (iii) The applicability of any bars at (b) Process and Authority. If an alien interpreter in conducting the interview. section 241(b)(3)(B) of the Act. subject to section 235(a)(2) or 235(b)(1) The interpreter must be at least 18 years (3) An alien establishes a reasonable of the Act indicates an intention to of age and may not be the alien’s possibility of torture if there is a apply for asylum, or expresses a fear of attorney or representative of record, a reasonable possibility that the alien persecution or torture, or a fear of return witness testifying on the alien’s behalf, would be tortured in the country of to his or her country, the inspecting a representative or employee of the removal, consistent with the criteria in officer shall not proceed further with alien’s country of nationality, or, if the 8 CFR 208.16(c), 8 CFR 208.17, and 8 removal of the alien until the alien has alien is stateless, the alien’s country of CFR 208.18. The alien must demonstrate been referred for an interview by an last habitual residence. a reasonable possibility that he or she asylum officer in accordance with this (6) The asylum officer shall create a will suffer severe pain or suffering in section. An asylum officer shall then summary of the material facts as stated the country of removal, and that the screen the alien for a credible fear of by the alien. At the conclusion of the feared harm would comport with the persecution, and as necessary, a interview, the officer shall review the other requirements of 8 CFR 208.18(a)(1) reasonable possibility of persecution summary with the alien and provide the through (8). When making such a and reasonable possibility of torture. An alien with an opportunity to correct any determination, the asylum officer shall asylum officer, as defined in section errors therein. take into account: 235(b)(1)(E) of the Act, has the (e) Procedures for determining (i) The credibility of the statements authorities described in 8 CFR 208.9(c) credible fear of persecution, reasonable made by alien in support of the alien’s and must conduct an evaluation and possibility of persecution, and claim, and make a determination consistent with reasonable possibility of torture. (ii) Such other facts as are known to this section. (1) An alien establishes a credible fear the officer, including whether the alien (c) Treatment of dependents. A of persecution if there is a significant could relocate to a part of the country spouse or child of an alien may be possibility the alien can establish of removal where he or she is not likely included in that alien’s fear evaluation eligibility for asylum under section 208 to be tortured.

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(4) In all cases, the asylum officer will immigration judge review consistent credible fear standard described in create a written record of his or her with paragraph (g) of this section, paragraph (g) of this section and in 8 determination, including a summary of except that the immigration judge will CFR 1208.30(g). the material facts as stated by the alien, review the fear findings under the (6) Prior to any determination any additional facts relied on by the reasonable possibility standard instead concerning whether an alien arriving in officer, and the officer’s determination of the credible fear of persecution the United States at a U.S.-Canada land of whether, in light of such facts, the standard described in paragraph (g) of border port-of-entry or in transit through alien has established a credible fear of this section and in 8 CFR 1208.30(g). the U.S. during removal by Canada has persecution, reasonable possibility of (ii) If the alien is found to be an alien a credible fear of persecution, persecution, or reasonable possibility of described in 8 CFR 208.13(c)(3), then reasonable possibility of persecution, or torture. In determining whether the the asylum officer shall enter a negative reasonable possibility of torture, the alien has a credible fear of persecution, credible fear determination with respect asylum officer shall conduct a threshold as defined in section 235(b)(1)(B)(v) of to the alien’s application for asylum. screening interview to determine the Act, or a reasonable possibility of The Department shall nonetheless place whether such an alien is ineligible to persecution or torture, the asylum the alien in asylum-and-withholding- apply for asylum pursuant to section officer shall consider whether the only proceedings under 8 CFR 208(a)(2)(A) of the Act and subject to alien’s case presents novel or unique 208.2(c)(1) for full consideration of the removal to Canada by operation of the issues that merit consideration in a full alien’s claim for withholding of removal Agreement Between the Government of hearing before an immigration judge. under section 241(b)(3) of the Act, or for the United States and the Government (5)(i)(A) Except as provided in withholding or deferral of removal of Canada For Cooperation in the paragraph (e)(5)(ii) or (iii) or paragraph under the regulations issued pursuant to Examination of Refugee Status Claims (e)(6) or (7) of this section, if an alien the implementing legislation for the from Nationals of Third Countries would be able to establish a credible Convention Against Torture, if the alien (‘‘Agreement’’). In conducting this fear of persecution but for the fact that establishes, respectively, a reasonable threshold screening interview, the the alien is subject to one or more of the possibility of persecution or torture. asylum officer shall apply all relevant mandatory bars to applying for asylum However, if an alien fails to establish, interview procedures outlined in or being eligible for asylum contained in during the interview with the asylum paragraph (d) of this section, provided, section 208(a)(2)(B)–(D) and (b)(2) of the officer, a reasonable possibility of either however, that paragraph (d)(2) of this Act, including any bars established by persecution or torture, the asylum section shall not apply to aliens regulation under section 208(b)(2)(C) of officer will provide the alien with a described in this paragraph (e)(6). The the Act, then the asylum officer will written notice of decision, which will be asylum officer shall advise the alien of enter a negative credible fear of subject to immigration judge review the Agreement’s exceptions and persecution determination with respect consistent with paragraph (g) of this question the alien as to applicability of to the alien’s eligibility for asylum. section, except that the immigration any of these exceptions to the alien’s (B) If an alien described in paragraph judge will review the fear of persecution case. (e)(5)(i)(A) of this section is able to or torture findings under the reasonable establish either a reasonable possibility possibility standard instead of the * * * * * of persecution (including by credible fear standard described in (ii) If the alien establishes by a establishing that he or she is not subject paragraph (g) of this section and in 8 preponderance of the evidence that he to one or more of the mandatory bars to CFR 1208.30(g). or she qualifies for an exception under eligibility for withholding of removal (iii) If the alien is found to be an alien the terms of the Agreement, the asylum contained in section 241(b)(3)(B) of the described in 8 CFR 208.13(c)(4), then officer shall make a written notation of Act) or a reasonable possibility of the asylum officer shall enter a negative the basis of the exception, and then torture, then the asylum officer will credible fear determination with respect proceed immediately to a determination enter a positive reasonable possibility of to the alien’s application for asylum. concerning whether the alien has a persecution or torture determination, as The Department shall nonetheless place credible fear of persecution, reasonable applicable. The Department of the alien in asylum-and-withholding- possibility of persecution, or reasonable Homeland Security shall place the alien only proceedings under 8 CFR possibility of torture under paragraph in asylum-and-withholding-only 208.2(c)(1) for full consideration of the (d) of this section. proceedings under 8 CFR 208.2(c)(1) for alien’s claim for withholding of removal (iii) An alien qualifies for an full consideration of the alien’s claim under section 241(b)(3) of the Act or exception to the Agreement if the alien for withholding of removal under withholding of deferral of removal is not being removed from Canada in section 241(b)(3) of the Act or under the regulations issued pursuant to transit through the United States and: withholding or deferral of removal the implementing legislation for the * * * * * under the regulations issued pursuant to Convention Against Torture if the alien (iv) As used in paragraphs the implementing legislation for the establishes, respectively, a reasonable (e)(6)(iii)(B), (C), and (D) of this section Convention Against Torture. possibility of persecution or torture. only, ‘‘legal guardian’’ means a person (C) If an alien described in paragraph However, if an alien fails to establish, currently vested with legal custody of (e)(5)(i)(A) of this section fails to during the interview with the asylum such an alien or vested with legal establish either a reasonable possibility officer, a reasonable possibility of either authority to act on the alien’s behalf, of persecution (including by failing to persecution or torture, the asylum provided that such an alien is both establish that he or she is not subject to officer will provide the alien with a unmarried and less than 18 years of age, one or more of the mandatory bars to written notice of decision, which will be and provided further that any dispute eligibility for withholding of removal subject to immigration judge review with respect to whether an individual is contained in section 241(b)(3)(B) of the consistent with paragraph (g) of this a legal guardian will be resolved on the Act) or a reasonable possibility of section, except that the immigration basis of U.S. law. torture, the asylum officer will provide judge will review the fear of persecution (7) When an immigration officer has the alien with a written notice of or torture findings under the reasonable made an initial determination that an decision, which will be subject to possibility standard instead of the alien, other than an alien described in

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paragraph (e)(6) of this section and (2) Parole of the alien may be § 208.31 Reasonable fear of persecution or regardless of whether the alien is considered only in accordance with torture determinations involving aliens arriving at a port of entry, appears to be section 212(d)(5) of the Act and 8 CFR ordered removed under section 238(b) of subject to the terms of an agreement 212.5 of this chapter. the Act and aliens whose removal is reinstated under section 241(a)(5) of the authorized by section 208(a)(2)(A) of the (g) Procedures for a negative fear Act. Act, and seeks the alien’s removal determination. (1) If, pursuant to consistent with that provision, prior to * * * * * paragraphs (e) and (f) of this section, an (f) Removal of aliens with no any determination concerning whether alien stowaway or an alien subject to reasonable fear of persecution or the alien has a credible fear of expedited removal does not establish a torture. If the asylum officer determines persecution, reasonable possibility of credible fear of persecution, reasonable that the alien has not established a persecution, or a reasonable possibility possibility of persecution, or reasonable reasonable fear of persecution or torture, of torture, the asylum officer shall possibility of torture, DHS shall provide the asylum officer shall inform the alien conduct a threshold screening interview the alien with a written notice of in writing of the decision and shall to determine whether the alien is decision and inquire whether the alien inquire whether the alien wishes to ineligible to apply for asylum in the wishes to have an immigration judge have an immigration judge review the United States and is subject to removal review the negative determination, in negative decision, using the Record of to a country (‘‘receiving country’’) that accordance with section Negative Reasonable Fear Finding and is a signatory to the applicable 235(b)(1)(B)(iii)(III) of the Act and this Request for Review by Immigration agreement authorized by section § 208.30. The alien must indicate Judge, on which the alien must indicate 208(a)(2)(A) of the Act, other than the whether he or she desires such review whether he or she desires such review. U.S.-Canada Agreement effectuated in on a Record of Negative Fear Finding If the alien refuses to make an 2004. * * * and Request for Review by Immigration indication, DHS shall consider such a * * * * * Judge. If the alien refuses to make an response as a decision to decline (ii) If the alien establishes by a indication, DHS shall consider such a review. preponderance of the evidence that he response as a decision to decline (g) Review by immigration judge. The or she qualifies for an exception under review. asylum officer’s negative decision the terms of the applicable agreement, (i) If the alien requests such review, regarding reasonable fear shall be or would more likely than not be DHS shall arrange for detention of the subject to review by an immigration persecuted on account of his or her race, alien and serve him or her with a Notice judge upon the alien’s request. If the religion, nationality, membership in a of Referral to Immigration Judge, for alien requests such review, the asylum particular social group, or tortured, in review of the negative fear officer shall serve him or her with a the receiving country, the asylum officer determination in accordance with Notice of Referral to Immigration Judge. shall make a written notation to that paragraph (g)(2) of this section. The record of determination, including effect, and may then proceed to (ii) If the alien is not a stowaway and copies of the Notice of Referral to determine whether any other agreement does not request a review by an Immigration Judge, the asylum officer’s is applicable to the alien under the immigration judge, DHS shall order the notes, the summary of the material facts, procedures set forth in this paragraph alien removed with a Notice and Order and other materials upon which the (e)(7). If the alien establishes by a of Expedited Removal, after review by a determination was based shall be preponderance of the evidence that he supervisory officer. provided to the immigration judge with or she qualifies for an exception under the negative determination. In the the terms of each of the applicable (iii) If the alien is a stowaway and the absence of exceptional circumstances, agreements, or would more likely than alien does not request a review by an such review shall be conducted by the not be persecuted on account of his or immigration judge, DHS shall complete immigration judge within 10 days of the her race, religion, nationality, removal proceedings in accordance with filing of the Notice of Referral to membership in a particular social group, section 235(a)(2) of the Act. (2) Review Immigration Judge with the immigration or tortured, in each of the prospective by immigration judge of a negative fear court. Upon review of the asylum receiving countries, the asylum officer determination. officer’s negative reasonable fear shall make a written notation to that (i) Immigration judges shall review determination: effect, and then proceed immediately to negative fear determinations as (1) If the immigration judge concurs a determination concerning whether the provided in 8 CFR 1208.30(g). DHS, with the asylum officer’s determination alien has a credible fear of persecution, however, may reconsider a negative that the alien does not have a reasonable reasonable possibility of persecution, or credible fear finding that has been fear of persecution or torture, the case a reasonable possibility of torture, under concurred upon by an immigration shall be returned to DHS for removal of paragraph (d) of this section. judge after providing notice of its the alien. No appeal shall lie from the * * * * * reconsideration to the immigration immigration judge’s decision. judge. (2) If the immigration judge finds that (f) Procedures for a positive fear the alien has a reasonable fear of determination. If, pursuant to paragraph (ii) DHS shall provide the record of any negative fear determinations being persecution or torture, the alien may (e) of this section, an alien stowaway or submit an Application for Asylum and an alien subject to expedited removal reviewed, including copies of the Notice of Referral to Immigration Judge, the for Withholding of Removal. establishes either a credible fear of (i) The immigration judge shall asylum officer’s notes, the summary of persecution, reasonable possibility of consider only the alien’s application for the material facts, and other materials persecution, or a reasonable possibility withholding of removal under 8 CFR upon which the determination was of torture: 1208.16 and shall determine whether based, to the immigration judge with the (1) DHS shall issue a Notice of the alien’s removal to the country of negative fear determination. Referral to Immigration Judge for removal must be withheld or deferred. asylum-and-withholding-only ■ 13. Amend § 208.31 by revising (ii) Appeal of the immigration judge’s proceedings under 8 CFR 208.2(c)(1). paragraphs (f) and (g) to read as follows: decision whether removal must be

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withheld or deferred lies with the Board DEPARTMENT OF JUSTICE alien’s claim, whether the alien is of Immigration Appeals. If the alien or Accordingly, for the reasons set forth subject to any mandatory bars to DHS appeals the immigration judge’s in the preamble, 8 CFR parts 1003, 1208, applying for asylum or being eligible for decision, the Board shall review only 1212, 1235, and 1244 are amended as asylum under section 208(a)(2)(B)–(D) the immigration judge’s decision follows: and (b)(2) of the Act, including any bars regarding the alien’s eligibility for established by regulation under section withholding or deferral of removal PART 1003—EXECUTIVE OFFICE FOR 208(b)(2)(C) of the Act, and such other under 8 CFR 1208.16. IMMIGRATION REVIEW facts as are known to the immigration judge, that the alien could establish his PART 235—INSPECTION OF PERSONS ■ 16. The authority citation for part or her ability to apply for or be granted APPLYING FOR ADMISSION 1003 continues to read as follows: asylum under section 208 of the Act. Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 The immigration judge shall make a de ■ 14. The authority citation for part 235 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, novo determination as to whether there continues to read as follows: 1226, 1229, 1229a, 1229b, 1229c, 1231, is a reasonable possibility, taking into Authority: 8 U.S.C. 1101 and note, 1103, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 account the credibility of the statements 1183, 1185 (pursuant to E.O. 13323, 69 FR U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. made by the alien in support of the 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002; alien’s claim, whether the alien is 1225, 1226, 1228, 1365a note, 1365b, 1379, section 203 of Public Law 105–100, 111 Stat. subject to any mandatory bars to 1731–32; Title VII of Public Law 110–229; 8 2196–200; sections 1506 and 1510 of Public eligibility for withholding of removal U.S.C. 1185 note (section 7209 of Public Law Law 106–386, 114 Stat. 1527–29, 1531–32; under section 241(b)(3)(B) of the Act, 108–458); Public Law 112–54. section 1505 of Public Law 106–554, 114 and such other facts as are known to the Stat. 2763A–326 to–328. ■ 15. Amend § 235.6 by revising immigration judge, that the alien would ■ 17. Amend § 1003.1 by revising be persecuted on account of his or her paragraphs (a)(1)(ii) and (a)(2)(i) and (iii) paragraph (b)(9) to read as follows: and adding paragraph (c) to read as race, religion, nationality, membership in a particular social group, or political follows: § 1003.1 Organization, jurisdiction, and powers of the Board of Immigration opinion in the country of removal, § 235.6 Referral to immigration judge. Appeals. consistent with the criteria in 8 CFR 1208.16(b). The immigration judge shall (a) * * * * * * * * also make a de novo determination as to (b) * * * (1) * * * whether there is a reasonable (9) Decisions of Immigration Judges in (ii) If an immigration officer verifies possibility, taking into account the asylum proceedings pursuant to that an alien subject to expedited credibility of the statements made by § 1208.2(b) and (c) of this chapter. removal under section 235(b)(1) of the the alien in support of the alien’s claim Act has been admitted as a lawful * * * * * and such other facts as are known to the permanent resident or refugee, or ■ 18. Amend § 1003.42 by revising the immigration judge, that the alien would granted asylum, or, upon review section heading and paragraphs (a), (b), be tortured in the country of removal, pursuant to § 235.3(b)(5)(iv) of chapter I, (d) through (g), (h)(1), and the last consistent with the criteria in 8 CFR an immigration judge determines that sentence in paragraph (h)(3) and adding 1208.16(c), 8 CFR 1208.17, and 8 CFR the alien was once so admitted or paragraph (i) to read as follows: 1208.18. granted asylum, provided that such (2) If the alien is determined to be an § 1003.42 Review of credible fear of alien described in 8 CFR208.13(c)(3) or status has not been terminated by final persecution, reasonable possibility of administrative action, and the DHS persecution, and reasonable possibility of 8 CFR 1208.13(c)(3) and is determined initiates removal proceedings against torture determinations. to lack a reasonable possibility of persecution or torture under 8 CFR the alien under section 240 of the Act. (a) Referral. Jurisdiction for an * * * * * 208.30(e)(5)(ii), the Immigration Judge immigration judge to review a negative shall first review de novo the (2) * * * fear determination by an asylum officer determination that the alien is described (i) If an asylum officer determines that pursuant to section 235(b)(1)(B) of the in 8 CFR 208.13(c)(3) or 8 CFR the alien does not have a credible fear Act shall commence with the filing by 1208.13(c)(3) prior to any further review of persecution, reasonable possibility of DHS of the Notice of Referral to of the asylum officer’s negative fear persecution, or reasonable possibility of Immigration Judge. DHS shall also file determination. torture, and the alien requests a review with the notice of referral a copy of the (3) If the alien is determined to be an of that determination by an immigration written record of determination as alien described in 8 CFR 208.13(c)(4) or judge; or defined in section 235(b)(1)(B)(iii)(II) of 8 CFR 1208.13(c)(4) and is determined the Act, including a copy of the alien’s * * * * * to lack a reasonable possibility of written request for review, if any. persecution or torture under 8 CFR (iii) If an immigration officer refers an (b) Record of proceeding. The 208.30(e)(5)(iii), the immigration judge applicant in accordance with the Immigration Court shall create a Record shall first review de novo the provisions of 8 CFR 208.30 or 8 CFR of Proceeding for a review of a negative determination that the alien is described 208.31. fear determination. This record shall not in 8 CFR 208.13(c)(4) or 8 CFR * * * * * be merged with any later proceeding 1208.13(c)(4) prior to any further review (c) The provisions of part 235 are involving the same alien. of the asylum officer’s negative fear separate and severable from one * * * * * determination. another. In the event that any provision (d) Standard of review. (1) The (e) Timing. The immigration judge in part 235 is stayed, enjoined, not immigration judge shall make a de novo shall conclude the review to the implemented, or otherwise held invalid, determination as to whether there is a maximum extent practicable within 24 the remaining provisions shall significant possibility, taking into hours, but in no case later than 7 days nevertheless be implemented as an account the credibility of the statements after the date the supervisory asylum independent rule and continue in effect. made by the alien in support of the officer has approved the asylum officer’s

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negative credible fear determination review the negative fear finding as of the alleged particular social group, issued on the Record of Negative provided in this section. rather than the precise form of its Credible Fear Finding and Request for * * * * * delineation, shall be considered in Review. (i) Severability. The provisions of part determining whether the group falls (f) Decision. (1) The decision of the 1003 are separate and severable from within one of the categories on the list. immigration judge shall be rendered in one another. In the event that any No alien shall be found to be a refugee accordance with the provisions of 8 CFR provision in part 1003 is stayed, or have it decided that the alien’s life or 1208.30(g)(2). In reviewing the negative enjoined, not implemented, or freedom would be threatened based on fear determination by DHS, the otherwise held invalid, the remaining membership in a particular social group immigration judge shall apply relevant provisions shall nevertheless be in any case unless that person first precedent issued by the Board of implemented as an independent rule articulates on the record, or provides a Immigration Appeals, the Attorney and continue in effect. basis on the record for determining, the General, the Federal circuit court of definition and boundaries of the alleged PART 1208—PROCEDURES FOR appeals having jurisdiction over the particular social group. A failure to ASYLUM AND WITHHOLDING OF define, or provide a basis for defining, immigration court where the Request for REMOVAL Review is filed, and the Supreme Court. a formulation of a particular social group before an immigration judge shall ■ 19. The authority citation for part (2) No appeal shall lie from a review waive any such claim for all purposes 1208 continues to read as follows: of a negative fear determination made under the Act, including on appeal. Any by an Immigration Judge, but the Authority: 8 U.S.C. 1101, 1103, 1158, waived claim on this basis shall not Attorney General, in the Attorney 1226, 1252, 1282; Title VII of Public Law serve as the basis for any motion to 110–229. General’s sole and unreviewable reopen or reconsider for any reason, discretion, may direct that the ■ 20. Amend § 1208.1 by adding including a claim of ineffective Immigration Judge refer a case for the paragraphs (c) through (g) to read as assistance of counsel unless the alien Attorney General’s review following the follows: complies with the procedural Immigration Judge’s review of a negative § 1208.1 General. requirements for such a motion and fear determination. demonstrates that counsel’s failure to (3) In any case the Attorney General * * * * * define, or provide a basis for defining, (c) Particular social group. For decides, the Attorney General’s decision a formulation of a particular social purposes of adjudicating an application shall be stated in writing and shall be group was both not a strategic choice for asylum under section 208 of the Act transmitted to the Board for transmittal and constituted egregious conduct. or an application for withholding of and service as provided in 8 CFR (d) Political opinion. For purposes of 1003.1(f). Such decision by the Attorney removal under section 241(b)(3) of the Act, a particular social group is one that adjudicating an application for asylum General may be designated as precedent under section 208 of the Act or an as provided in 8 CFR 1003.1(g). is based on an immutable or fundamental characteristic, is defined application for withholding of removal (g) Custody. An immigration judge with particularity, and is recognized as under section 241(b)(3) of the Act, a shall have no authority to review an socially distinct in the society at political opinion is one expressed by or alien’s custody status in the course of a question. Such a particular social group imputed to an applicant in which the review of a negative fear determination cannot be defined exclusively by the applicant possesses an ideal or made by DHS. alleged persecutory acts or harm and conviction in support of the furtherance (h) * * * must also have existed independently of of a discrete cause related to political control of a State or a unit thereof. The (1) Arriving alien. An immigration the alleged persecutory acts or harm that Attorney General, in general, will not judge has no jurisdiction to review a forms the basis of the claim. The favorably adjudicate claims of aliens determination by an asylum officer that Attorney General, in general, will not who claim a fear of persecution on an arriving alien is not eligible to apply favorably adjudicate claims of aliens account of a political opinion defined for asylum pursuant to the 2002 U.S.- who claim a fear of persecution on solely by generalized disapproval of, Canada Agreement formed under account of membership in a particular disagreement with, or opposition to section 208(a)(2)(A) of the Act and social group consisting of or defined by criminal, terrorist, gang, guerilla, or should be returned to Canada to pursue the following circumstances: past or other non-state organizations absent his or her claims for asylum or other present criminal activity or association expressive behavior in furtherance of a protection under the laws of Canada. (including gang membership); presence in a country with generalized violence cause against such organizations related See 8 CFR 208.30(e)(6). However, in any or a high crime rate; being the subject to efforts by the State to control such case where an asylum officer has found of a recruitment effort by criminal, organizations or behavior that is that an arriving alien qualifies for an terrorist, or persecutory groups; the antithetical to or otherwise opposes the exception to that Agreement, an targeting of the applicant for criminal ruling legal entity of the State or a legal immigration judge does have activity for financial gain based on sub-unit of the State. A person who has jurisdiction to review a negative fear perceptions of wealth or affluence; been forced to abort a pregnancy or to finding made thereafter by the asylum interpersonal disputes of which undergo involuntary sterilization, or officer as provided in this section. governmental authorities were unaware who has been persecuted for failure or * * * * * or uninvolved; private criminal acts of refusal to undergo such a procedure or (3) * * * However, if the asylum which governmental authorities were for other resistance to a coercive officer has determined that the alien unaware or uninvolved; past or present population control program, shall be may not or should not be removed to a terrorist activity or association; past or deemed to have been persecuted on third country under section 208(a)(2)(A) present persecutory activity or account of political opinion, and a of the Act and subsequently makes a association; or, status as an alien person who has a well-founded fear that negative fear determination, an returning from the United States. This he or she will be forced to undergo such immigration judge has jurisdiction to list is nonexhaustive, and the substance a procedure or subject to persecution for

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such failure, refusal, or resistance shall State or expressive behavior that is determination pursuant to 8 CFR be deemed to have a well-founded fear antithetical to the State or a legal unit 208.31. * * * of persecution on account of political of the State; * * * * * (4) Resistance to recruitment or opinion. ■ (e) Persecution. For purposes of coercion by guerilla, criminal, gang, 23. Amend § 1208.6 by revising adjudicating an application for asylum terrorist or other non-state paragraphs (a) and (b) and adding under section 208 of the Act or an organizations; paragraphs (d) and (e) to read as follows: application for withholding of removal (5) The targeting of the applicant for § 1208.6 Disclosure to third parties. under section 241(b)(3) of the Act, criminal activity for financial gain based persecution requires an intent to target on wealth or affluence or perceptions of (a) Information contained in or a belief or characteristic, a severe level wealth or affluence; pertaining to any application for refugee of harm, and the infliction of a severe (6) Criminal activity; admission, asylum, withholding of level of harm by the government of a (7) Perceived, past or present, gang removal under section 241(b)(3) of the country or by persons or an organization affiliation; or, Act, or protection under regulations that the government was unable or (8) Gender. issued pursuant to the Convention unwilling to control. For purposes of (g) Evidence based on stereotypes. For Against Torture’s implementing evaluating the severity of the level of purposes of adjudicating an application legislation, records pertaining to any harm, persecution is an extreme concept for asylum under section 208 of the Act credible fear determination conducted involving a severe level of harm that or an application for withholding of pursuant to § 208.30, and records includes actions so severe that they removal under section 241(b)(3) of the pertaining to any reasonable fear constitute an exigent threat. Persecution Act, evidence offered in support of such determination conducted pursuant to does not encompass the generalized an application which promotes cultural § 208.31, shall not be disclosed without harm that arises out of civil, criminal, or stereotypes about a country, its the written consent of the applicant, military strife in a country, nor does it inhabitants, or an alleged persecutor, except as permitted by this section or at encompass all treatment that the United including stereotypes based on race, the discretion of the Attorney General. States regards as unfair, offensive, religion, nationality, or gender, shall not (b) The confidentiality of other unjust, or even unlawful or be admissible in adjudicating that records kept by DHS and the Executive unconstitutional. It does not include application, provided that nothing in Office for Immigration Review that intermittent harassment, including brief this paragraph shall be construed as indicate that a specific alien has applied detentions; threats with no actual effort prohibiting the submission of evidence for refugee admission, asylum, to carry out the threats, except that that an alleged persecutor holds withholding of removal under section particularized threats of a severe harm stereotypical views of the applicant. 241(b)(3) of the Act, or protection under of immediate and menacing nature ■ 21. Amend § 1208.2 by adding regulations issued pursuant to the made by an identified entity may paragraph (c)(1)(ix) to read as follows: Convention Against Torture’s constitute persecution; or, non-severe implementing legislation, or has economic harm or property damage, § 1208.2 Jurisdiction. received a credible fear or reasonable though this list is nonexhaustive. The * * * * * fear interview, or received a credible existence of government laws or policies (c) * * * fear or reasonable fear review shall also that are unenforced or infrequently (1) * * * be protected from disclosure, except as enforced do not, by themselves, (ix) An alien found to have a credible permitted in this section. DHS will constitute persecution, unless there is fear of persecution, reasonable coordinate with the Department of State credible evidence that those laws or possibility of persecution, or reasonable to ensure that the confidentiality of policies have been or would be applied possibility of torture in accordance with those records is maintained if they are to an applicant personally. § 208.30, § 1003.42, or § 1208.30. transmitted to Department of State (f) Nexus. For purposes of * * * * * offices in other countries. adjudicating an application for asylum ■ 22. Amend § 1208.5 by revising the * * * * * under section 208 of the Act or an first sentence of paragraph (a) to read as (d)(1) Any information contained in application for withholding of removal follows: an application for refugee admission, under section 241(b)(3) of the Act, the asylum, withholding of removal under Attorney General, in general, will not § 1208.5 Special duties toward aliens in section 241(b)(3) the Act, or protection favorably adjudicate the claims of aliens custody of DHS. under regulations issued pursuant to the who claim persecution based on the (a) General. When an alien in the Convention Against Torture’s following list of nonexhaustive custody of DHS requests asylum or implementing legislation, any relevant circumstances: withholding of removal, or expresses a (1) Interpersonal animus or fear of persecution or harm upon return and applicable information supporting retribution; to his or her country of origin or to that application, any information (2) Interpersonal animus in which the agents thereof, DHS shall make available regarding an alien who has filed such an alleged persecutor has not targeted, or the appropriate application forms and application, and any relevant and manifested an animus against, other shall provide the applicant with the applicable information regarding an members of an alleged particular social information required by section alien who has been the subject of a group in addition to the member who 208(d)(4) of the Act, including in the reasonable fear or credible fear has raised the claim at issue; case of an alien who is in custody with determination may be disclosed: (3) Generalized disapproval of, a positive credible fear determination (i) As part of an investigation or disagreement with, or opposition to under 8 CFR 208.30 or a reasonable fear adjudication of the merits of that criminal, terrorist, gang, guerilla, or determination pursuant to 8 CFR application or of any other application other non-state organizations absent 208.31, and except in the case of an under the immigration laws; expressive behavior in furtherance of a alien who is in custody pending a (ii) As part of any State or Federal discrete cause against such credible fear determination under 8 CFR criminal investigation, proceeding, or organizations related to control of a 208.30 or a reasonable fear prosecution;

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(iii) Pursuant to any State or Federal persecutor, and the applicant’s (B) The alien demonstrates that he or mandatory reporting requirement; demonstrated ability to relocate to the she satisfies the definition of ‘‘victim of (iv) To deter, prevent, or ameliorate United States in order to apply for a severe form of trafficking in persons’’ the effects of child abuse; asylum. provided in 8 CFR 214.11; or (v) As part of any proceeding arising * * * * * (C) Such country or countries were, at under the immigration laws, including (ii) In cases in which the persecutor the time of the transit, not parties to the proceedings arising under the Act; and is a government or is government- 1951 Convention relating to the Status (vi) As part of the Government’s sponsored, it shall be presumed that of Refugees, the 1967 Protocol relating defense of any legal action relating to internal relocation would not be to the Status of Refugees, or the the alien’s immigration or custody reasonable, unless the Department of Convention Against Torture and Other status, including petitions for review Homeland Security establishes by a Cruel, Inhuman or Degrading Treatment filed in accordance with 8 U.S.C. 1252. preponderance of the evidence that, or Punishment; and (2) If information may be disclosed under all the circumstances, it would be (iii) An alien’s use of fraudulent under paragraph (d)(1) of this section, reasonable for the applicant to relocate. documents to enter the United States, the disclosure provisions in paragraphs (iii) Regardless of whether an unless the alien arrived in the United (a), (b), and (c) of this section shall not applicant has established persecution in States by air, sea, or land directly from apply. the past, in cases in which the the applicant’s home country without (e) Nothing in this section shall be persecutor is not the government or a transiting through any other country. construed as prohibiting the disclosure government-sponsored actor, or (2)(i) The Attorney General, except as of information contained in an otherwise is a private actor, there shall provided in paragraph (d)(2)(ii) of this application for refugee admission, be a presumption that internal section, will not favorably exercise asylum, withholding of removal under relocation would be reasonable unless discretion under section 208 of the Act section 241(b)(3)(B) of the Act, or the applicant establishes, by a for an alien who: protection under the regulations issued (A) Immediately prior to his arrival in preponderance of the evidence, that it pursuant to the Convention Against the United States or en route to the would be unreasonable to relocate. Torture’s implementing legislation, any (iv) For purposes of determinations United States from the alien’s country of relevant and applicable information under paragraphs (b)(3)(ii) and (iii) of citizenship, nationality, or last lawful supporting that application, information this section, persecutors who are private habitual residence, spent more than 14 regarding an alien who has filed such an actors—including persecutors who are days in any one country unless: application, or information regarding an (1) The alien demonstrates that he or gang members, officials acting outside alien who has been the subject of a she applied for protection from their official capacity, family members reasonable fear or credible fear persecution or torture in such country who are not themselves government determination: and the alien received a final judgment officials, or neighbors who are not (1) Among employees of the denying the alien protection in such themselves government officials—shall Department of Justice, the Department country; of Homeland Security, the Department not be considered to be persecutors who (2) The alien demonstrates that he or of State, the Department of Health and are the government or government- she satisfies the definition of ‘‘victim of Human Services, the Department of sponsored absent evidence that the a severe form of trafficking in persons’’ Labor, or a U.S. national security agency government sponsored the persecution. provided in 8 CFR 214.11; or having a need to examine the * * * * * (3) Such country was, at the time of information for an official purpose; or (d) Discretion. Factors that fall short the transit, not a party to the 1951 (2) Where a United States government of grounds of mandatory denial of an Convention relating to the Status of employee or contractor has a good faith asylum application may constitute Refugees the 1967 Protocol relating to and reasonable belief that disclosure is discretionary considerations. the Status of Refugees, or the necessary to prevent the commission of (1) The following are significant Convention against Torture and Other a crime, the furtherance of an ongoing adverse discretionary factors that a Cruel, Inhuman or Degrading Treatment crime, or to ameliorate the effects of a decision-maker shall consider, if or Punishment; crime. applicable, in determining whether an (B) Transits through more than one ■ 24. Section 1208.13 is amended by alien merits a grant of asylum in the country between his country of revising paragraphs (b)(3) introductory exercise of discretion: citizenship, nationality, or last habitual text and (b)(3)(ii) and adding paragraphs (i) An alien’s unlawful entry or residence and the United States unless: (b)(3)(iii) and (iv), (d), and (e) to read as unlawful attempted entry into the (1) The alien demonstrates that he or follows: United States unless such entry or she applied for protection from attempted entry was made in immediate persecution or torture in at least one § 1208.13 Establishing asylum eligibility. flight from persecution in a contiguous such country and the alien received a * * * * * country or unless such entry or final judgment denying the alien (b) * * * attempted entry was made by an alien protection in such country; (3) Reasonableness of internal under the age of 18 at the time the entry (2) The alien demonstrates that he or relocation. For purposes of or attempted entry was made; she satisfies the definition of ‘‘victim of determinations under paragraphs (ii) The failure of an alien to apply for a severe form of trafficking in persons’’ (b)(1)(i) and (ii) and (b)(2) of this protection from persecution or torture in provided in 8 CFR 214.11; or section, adjudicators should consider at least one country outside the alien’s (3) All such countries through which the totality of the relevant country of citizenship, nationality, or the alien transited en route to the circumstances regarding an applicant’s last lawful habitual residence through United States were, at the time of the prospects for relocation, including the which the alien transited before entering transit, not parties to the 1951 size of the country of nationality or last the United States unless: Convention relating to the Status of habitual residence, the geographic locus (A) The alien received a final Refugees, the 1967 Protocol relating to of the alleged persecution, the size, judgment denying the alien protection the Status of Refugees, or the numerosity, and reach of the alleged in such country; Convention against Torture and Other

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Cruel, Inhuman or Degrading Treatment application of paragraph (d)(2)(i), a to arriving in or entering the United or Punishment; showing of extraordinary circumstances States and— (C) Would otherwise be subject to might still be insufficient to warrant a (i) Received or was eligible for any § 1208.13(c) but for the reversal, vacatur, favorable exercise of discretion under permanent legal immigration status in expungement, or modification of a section 208 of the Act. that country; conviction or sentence unless the alien (e) Prima facie eligibility. (1) (ii) Resided in such a country with was found not guilty; Notwithstanding any other provision of any non-permanent but indefinitely (D) Accrued more than one year of this part, upon oral or written motion by renewable legal immigration status unlawful presence in the United States, the Department of Homeland Security, (including asylee, refugee, or similar as defined in sections 212(a)(9)(B)(ii) an immigration judge shall, if warranted status but excluding status such as of a and (iii) of the Act, prior to filing an by the record, pretermit and deny any tourist); or application for asylum; application for asylum, withholding of (iii) Resided in such a country and (E) At the time the asylum application removal under section 241(b)(3) of the could have applied for and obtained any is filed with the immigration court or is Act, or protection under the regulations non-permanent but indefinitely referred from DHS has: issued pursuant to the Convention renewable legal immigration status in (1) Failed to timely file (or timely file Against Torture’s implementing that country; a request for an extension of time to file) legislation if the alien has not (2) The alien physically resided any required Federal, State, or local established a prima facie claim for relief voluntarily, and without continuing to income tax returns; or protection under applicable law. An suffer persecution in any one country (2) Failed to satisfy any outstanding immigration judge need not conduct a for one year or more after departing his Federal, State, or local tax obligations; hearing prior to pretermitting and country of nationality or last habitual or denying an application under this residence and prior to arrival in or entry (3) Has income that would result in paragraph (e)(1) but must consider any into the United States, provided that tax liability under section 1 of the response to the motion before making a time spent in Mexico by an alien who Internal Revenue Code of 1986 and that decision. is not a native or citizen of Mexico was not reported to the Internal (2) Notwithstanding any other solely as a direct result of being Revenue Service; provision of this part, upon his or her (F) Has had two or more prior asylum returned to Mexico pursuant to section own authority, an immigration judge applications denied for any reason; 235(b)(2)(C) of the Act or of being (G) Has withdrawn a prior asylum shall, if warranted by the record, subject to metering would not be application with prejudice or been pretermit and deny any application for counted for purposes of this paragraph; found to have abandoned a prior asylum asylum, withholding of removal under or application; section 241(b)(3) of the Act, or (3)(i) The alien is a citizen of a (H) Failed to attend an interview protection under the regulations issued country other than the one where the regarding his or her asylum application pursuant to the Convention Against alien alleges a fear of persecution and with DHS, unless the alien shows by a Torture’s implementing legislation if the the alien was present in that country preponderance of the evidence that: alien has not established a prima facie after departing his country of nationality (1) Exceptional circumstances claim for relief or protection under or last habitual residence and prior to prevented the alien from attending the applicable law, provided that the arrival in or entry into the United States, interview; or immigration judge shall give the parties or (2) The interview notice was not at least 10 days’ notice prior to entering (ii) the alien was a citizen of a country mailed to the last address provided by such an order. An immigration judge other than the one where the alien the alien or the alien’s representative need not conduct a hearing prior to alleges a fear of persecution, the alien and neither the alien nor the alien’s pretermitting and denying an was present in that country after representative received notice of the application under this paragraph (e)(2) departing his country of nationality or interview; or but must consider any filings by the last habitual residence and prior to (I) Was subject to a final order of parties within the 10-day period before arrival in or entry into the United States, removal, deportation, or exclusion and making a decision. and the alien renounced that citizenship after arriving in the United States. did not file a motion to reopen to seek § 1208.14 [Amended] asylum based on changed country (b) The provisions of 8 CFR 1240.8(d) conditions within one year of the ■ 25. Amend § 1208.14 by shall apply when the evidence of record changes in country conditions. ■ a. Removing the words ‘‘§ 1235.3(b) of indicates that the firm resettlement bar (ii) Where one or more of the adverse this chapter’’ in paragraphs (c)(4)(ii) may apply. In such cases, the alien shall discretionary factors set forth in introductory text and (c)(4)(ii)(A) and bear the burden of proving the bar does paragraph (d)(2)(i) of this section are adding in their place the words not apply. Either DHS or the present, the Attorney General, in ‘‘§ 235.3(b) of chapter I’’; and immigration judge may raise the issue of extraordinary circumstances, such as ■ b. Removing the citations ‘‘§ 1208.30’’ the application of the firm resettlement those involving national security or and ‘‘§ 1208.30(b)’’ in paragraph bar based on the evidence of record. The foreign policy considerations, or cases (c)(4)(ii)(A) and adding in their place firm resettlement of an alien’s parent(s) in which an alien, by clear and the words ‘‘§ 208.30 of chapter I’’. shall be imputed to the alien if the convincing evidence, demonstrates that ■ 26. Revise § 1208.15 to read as resettlement occurred before the alien the denial of the application for asylum follows: turned 18 and the alien resided with the would result in exceptional and alien’s parents at the time of the firm extremely unusual hardship to the alien, § 1208.15 Definition of ‘‘firm resettlement.’’ resettlement unless he or she could not may favorably exercise discretion under (a) An alien is considered to be firmly have derived any permanent legal section 208 of the Act, notwithstanding resettled if, after the events giving rise immigration status or any non- the applicability of paragraph (d)(2)(i). to the alien’s asylum claim: permanent but indefinitely renewable Depending on the gravity of the (1) The alien resided in a country legal immigration status (including circumstances underlying the through which the alien transited prior asylee, refugee, or similar status but

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excluding status such as of a tourist) § 1208.18 Implementation of the ■ 29. Revise § 1208.20 to read as from the alien’s parent. Convention Against Torture. follows: ■ (a) * * * 27. Amend § 1208.16 by revising (1) Torture is defined as any act by § 1208.20 Determining if an asylum paragraphs (b)(3) introductory text and which severe pain or suffering, whether application is frivolous. (b)(3)(ii) and adding paragraphs physical or mental, is intentionally (a) For applications filed on or after (b)(3)(iii) and (iv) to read as follows: inflicted on a person for such purposes April 1, 1997, and before January 11, 2021, an applicant is subject to the § 1208.16 Withholding of removal under as obtaining from him or her or a third section 241(b)(3)(B) of the Act and person information or a confession, provisions of section 208(d)(6) of the withholding of removal under the punishing him or her for an act he or Act only if the alien received the notice Convention Against Torture. she or a third person has committed or required by section 208(d)(4)(A) of the Act and a final order by an immigration * * * * * is suspected of having committed, judge or the Board of Immigration (b) * * * intimidating or coercing him or her or a third person, or for any reason based Appeals specifically finds that the alien (3) Reasonableness of internal on discrimination of any kind, when knowingly filed a frivolous asylum relocation. For purposes of such pain or suffering is inflicted by, or application. An application is frivolous determinations under paragraphs (b)(1) at the instigation of, or with the consent if: (1) Any of the material elements in and (2) of this section, adjudicators or acquiescence of, a public official the asylum application is deliberately should consider the totality of the acting in an official capacity or other fabricated, and the immigration judge or relevant circumstances regarding an person acting in an official capacity. the Board is satisfied that the applicant, applicant’s prospects for relocation, Pain or suffering inflicted by a public during the course of the proceedings, including the size of the country of official who is not acting under color of has had sufficient opportunity to nationality or last habitual residence, law shall not constitute pain or suffering account for any discrepancies or the geographic locus of the alleged inflicted by, or at the instigation of, or persecution, the size, reach, or implausible aspects of the claim. with the consent or acquiescence of, a (2) Paragraphs (b) through (f) shall numerosity of the alleged persecutor, public official acting in an official and the applicant’s demonstrated ability only apply to applications filed on or capacity or other person acting in an after January 11, 2021. to relocate to the United States in order official capacity, although a different to apply for withholding of removal. (b) For applications filed on or after public official acting in an official January 11, 2021, an asylum officer may * * * * * capacity or other person acting in an determine that the applicant knowingly (ii) In cases in which the persecutor official capacity could instigate, consent filed a frivolous asylum application and is a government or is government- to, or acquiesce in the pain or suffering may refer the applicant to an sponsored, it shall be presumed that inflicted by the public official who is immigration judge on that basis, so long internal relocation would not be not acting under color of law. as the applicant has received the notice reasonable, unless the DHS establishes * * * * * required by section 208(d)(4)(A) of the by a preponderance of the evidence that, (7) Acquiescence of a public official Act. For applications referred to an under all the circumstances, it would be requires that the public official, prior to immigration judge, an asylum officer’s reasonable for the applicant to relocate. the activity constituting torture, have determination that an application is (iii) Regardless of whether an awareness of such activity and frivolous will not render an applicant applicant has established persecution in thereafter breach his or her legal permanently ineligible for immigration the past, in cases in which the responsibility to intervene to prevent benefits unless an immigration judge or persecutor is not the government or a such activity. Such awareness requires a the Board makes a finding of government-sponsored actor, or finding of either actual knowledge or frivolousness as described in paragraph otherwise is a private actor, there shall willful blindness. Willful blindness (c) of this section. be a presumption that internal means that the public official acting in (c) For applications filed on or after relocation would be reasonable unless an official capacity or other person January 11, 2021, an asylum application the applicant establishes, by a acting in an official capacity was aware is frivolous if it: (1) Contains a fabricated material preponderance of the evidence, that it of a high probability of activity element; would be unreasonable to relocate. constituting torture and deliberately avoided learning the truth; it is not (2) Is premised upon false or (iv) For purposes of determinations enough that such public official acting fabricated evidence unless the under paragraphs (b)(3)(ii) and (iii) of in an official capacity or other person application would have been granted this section, persecutors who are private acting in an official capacity was without the false or fabricated evidence; actors, including persecutors who are mistaken, recklessly disregarded the (3) Is filed without regard to the gang members, public official who are truth, or negligently failed to inquire. In merits of the claim; or not acting under color of law, or family (4) Is clearly foreclosed by applicable order for a public official to breach his members who are not themselves law. or her legal responsibility to intervene government officials or neighbors who (d) If the alien has been provided the to prevent activity constituting torture, are not themselves government officials, warning required by section the official must have been charged with shall not be considered to be 208(d)(4)(A) of the Act, he or she need preventing the activity as part of his or persecutors who are the government or not be given any additional or further her duties and have failed to intervene. government-sponsored absent evidence opportunity to account for any issues No person will be deemed to have that the government sponsored the with his or her claim prior to the entry breached a legal responsibility to persecution. of a frivolousness finding. intervene if such person is unable to * * * * * (e) An asylum application may be intervene, or if the person intervenes found frivolous even if it was untimely ■ 28. Amend § 1208.18 by revising but is unable to prevent the activity that filed. paragraphs (a)(1) and (7) to read as constitutes torture. (f) A withdrawn asylum application follows: * * * * * may be found frivolous unless:

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(1) The alien wholly disclaims the section 235(b)(1)(B) of the Act and 8 that the immigration judge will review application and withdraws it with CFR 208.30. Prior to January 1, 2030, an the fear of persecution or torture prejudice; alien physically present in or arriving in findings under the reasonable (2) The alien is eligible for and agrees the Commonwealth of the Northern possibility standard instead of the to accept voluntary departure for a Mariana Islands is ineligible to apply for credible fear (‘‘significant possibility’’) period of no more than 30 days asylum and may only establish standard described in paragraph (g)(2). pursuant to section 240B(a) of the Act; eligibility for withholding of removal (ii) If the alien is determined to be an (3) The alien withdraws any and all pursuant to section 241(b)(3) of the Act alien described as ineligible for asylum other applications for relief or or withholding or deferral of removal in 8 CFR 208.13(c)(4) or 8 CFR protection with prejudice; and under the regulations issued pursuant to 1208.13(c)(4) and is determined to lack (4) The alien waives his right to the Convention Against Torture’s a reasonable possibility of persecution appeal and any rights to file, for any implementing legislation. or torture under 8 CFR 208.30(e)(5)(v), reason, a motion to reopen or (b) Treatment of dependents. A the immigration judge shall first review reconsider. spouse or child of an alien may be de novo the determination that the alien (g) For purposes of this section, a included in that alien’s fear evaluation is described as ineligible for asylum in finding that an alien filed a knowingly and determination, if such spouse or 8 CFR 208.13(c)(4) or 8 CFR frivolous asylum application shall not child: 1208.13(c)(4). If the immigration judge preclude the alien from seeking * * * * * finds that the alien is not described as withholding of removal under section (2) Desires to be included in the ineligible for asylum in 8 CFR 241(b)(3) of the Act or protection under principal alien’s determination. 208.13(c)(4) or 8 CFR 1208.13(c)(4), then the regulations issued pursuant to the However, any alien may have his or her the immigration judge shall vacate the Convention Against Torture’s evaluation and determination made determination of the asylum officer, and implementing legislation. separately, if he or she expresses such DHS may commence asylum-and- ■ 30. Add § 1208.25 to read as follows: a desire. withholding-only proceedings under 8 § 1208.25 Severability. * * * * * CFR 1208.2(c)(1). If the immigration judge concurs with the determination The provisions of part 1208 are (e) Determination. For the standards that the alien is an alien described as separate and severable from one and procedures for asylum officers in ineligible for asylum in 8 CFR another. In the event that any provision conducting credible fear of persecution, 208.13(c)(4) or 8 CFR 1208.13(c)(4), the in part 1208 is stayed, enjoined, not reasonable possibility of persecution, immigration judge will then review the implemented, or otherwise held invalid, and reasonable possibility of torture asylum officer’s negative decision the remaining provisions shall interviews and in making positive and regarding reasonable possibility made nevertheless be implemented as an negative fear determinations, see 8 CFR under 8 CFR 208.30(e)(5)(v) consistent independent rule and continue in effect. 208.30. The immigration judges will with paragraph (g)(2) of this section, ■ review such determinations as provided 31. Amend § 1208.30 by revising the in paragraph (g) of this section and 8 except that the immigration judge will section heading and paragraphs (a), (b) CFR 1003.42. review the fear of persecution or torture introductory text, (b)(2), (e), and (g) to findings under the reasonable read as follows: * * * * * (g) Procedures for negative fear possibility standard instead of the § 1208.30 Credible fear of persecution, determinations—(1) Review by credible fear of persecution standard reasonable possibility of persecution, and immigration judge of a mandatory bar described in paragraph (g)(2). reasonable possibility of torture finding. (i) If the alien is determined to (2) Review by immigration judge of a determinations involving stowaways and be an alien described in 8 CFR negative fear finding. (i) The asylum applicants for admission who are found 208.13(c)(3) or 8 CFR 1208.13(c)(3) and officer’s negative decision regarding a inadmissible pursuant to section is determined to lack a credible fear of credible fear of persecution, reasonable 212(a)(6)(C) or 212(a)(7) of the Act or whose possibility of persecution, and entry is limited or suspended under section persecution or a reasonable possibility 212(f) or 215(a)(1) of the Act, or who failed of persecution or torture under 8 CFR reasonable possibility of torture shall be to apply for protection from persecution in 208.30(e)(5)(ii), the immigration judge subject to review by an immigration a third country where potential relief is shall first review de novo the judge upon the applicant’s request, in available while en route to the United determination that the alien is described accordance with section States. in 8 CFR 208.13(c)(3) or 8 CFR 235(b)(1)(B)(iii)(III) of the Act. If the (a) Jurisdiction. The provisions of this 1208.13(c)(3). If the immigration judge alien refuses to make an indication, subpart B apply to aliens subject to finds that the alien is not described in DHS will consider such a response as a sections 235(a)(2) and 235(b)(1) of the 8 CFR 208.13(c)(3) or 8 CFR decision to decline review. Act. Pursuant to section 235(b)(1)(B) 1208.13(c)(3), then the immigration (ii) The record of the negative fear and 8 CFR 208.30, DHS has exclusive judge shall vacate the determination of determination, including copies of the jurisdiction to make fear the asylum officer, and DHS may Notice of Referral to Immigration Judge, determinations, and the immigration commence asylum-and-withholding- the asylum officer’s notes, the summary judges have exclusive jurisdiction to only proceedings under 8 CFR of the material facts, and other materials review such determinations. Except as 1208.2(c)(1). If the immigration judge upon which the determination was otherwise provided in this subpart B, concurs with the determination that the based shall be provided to the paragraphs (b) through (g) of this section alien is an alien described in 8 CFR immigration judge with the negative fear and 8 CFR 208.30 are the exclusive 208.13(c)(3) or 8 CFR 1208.13(c)(3), the determination. procedures applicable to stowaways and immigration judge will then review the (iii) A fear hearing will be closed to applicants for admission who are found asylum officer’s negative determinations the public unless the alien states for the inadmissible pursuant to section regarding credible fear and regarding record or submits a written statement 212(a)(6)(C) or 212(a)(7) of the Act and reasonable possibility made under 8 that the alien is waiving that who receive fear interviews, CFR 208.30(e)(5)(iv) consistent with requirement; in that event the hearing determinations, and reviews under paragraph (g)(2) of this section, except shall be open to the public, subject to

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the immigration judge’s discretion as § 1208.31 Reasonable fear of persecution the alien’s removal to the country of provided in 8 CFR 1003.27. or torture determinations involving aliens removal must be withheld or deferred. ordered removed under section 238(b) of (iv) Upon review of the asylum (ii) Appeal of the immigration judge’s the Act and aliens whose removal is decision whether removal must be officer’s negative fear determinations: reinstated under section 241(a)(5) of the Act. withheld or deferred lies with the Board (A) If the immigration judge concurs of Immigration Appeals. If the alien or with the determination of the asylum * * * * * DHS appeals the immigration judge’s (f) Removal of aliens with no officer that the alien has not established decision, the Board shall review only reasonable fear of persecution or a credible fear of persecution, the immigration judge’s decision torture. If the asylum officer determines reasonable possibility of persecution, or regarding the alien’s eligibility for that the alien has not established a reasonable possibility of torture, the withholding or deferral of removal reasonable fear of persecution or torture, case shall be returned to DHS for under 8 CFR 1208.16. removal of the alien. The immigration the asylum officer shall inform the alien judge’s decision is final and may not be in writing of the decision and shall PART 1212—DOCUMENTARY appealed. inquire whether the alien wishes to REQUIREMENTS: NONIMMIGRANTS; have an immigration judge review the WAIVERS; ADMISSION OF CERTAIN (B) If the immigration judge finds that negative decision, using the Record of INADMISSIBLE ALIENS; PAROLE the alien, other than an alien stowaway, Negative Reasonable Fear Finding and establishes a credible fear of Request for Review by Immigration ■ 33. The authority citation for part persecution, reasonable possibility of Judge, on which the alien must indicate 1212 continues to read as follows: persecution, or reasonable possibility of whether he or she desires such review. Authority: 8 U.S.C. 1101 and note, 1102, torture, the immigration judge shall If the alien refuses to make an 1103, 1182 and note, 1184, 1187, 1223, 1225, vacate the Notice and Order of indication, DHS shall consider such a 1226, 1227, 1255; 8 U.S.C. 1185 note (section Expedited Removal, and DHS may response as a decision to decline 7209 of Public Law 108–458); Title VII of commence asylum-and-withholding- review. Public Law 110–229. (g) Review by Immigration Judge. The only proceedings under 8 CFR ■ 34. Add § 1212.13 to read as follows: 1208.2(c)(1), during which time the asylum officer’s negative decision alien may file an application for asylum regarding reasonable fear shall be § 1212.13 Severability. and for withholding of removal in subject to review by an immigration The provisions of part 1212 are accordance with 8 CFR 1208.4(b)(3)(i). judge upon the alien’s request. If the separate and severable from one Such application shall be considered de alien requests such review, the asylum another. In the event that any provision novo in all respects by an immigration officer shall serve him or her with a in part 1212 is stayed, enjoined, not judge regardless of any determination Notice of Referral to the Immigration implemented, or otherwise held invalid, made under this paragraph. Judge. The record of determination, the remaining provisions shall including copies of the Notice of (C) If the immigration judge finds that nevertheless be implemented as an Referral to the Immigration Judge, the independent rule and continue in effect. an alien stowaway establishes a credible asylum officer’s notes, the summary of fear of persecution, reasonable the material facts, and other materials § 1212.14 [Amended] possibility of torture, or reasonable upon which the determination was ■ 35. Amend § 1212.14 in paragraph possibility of torture, the alien shall be based shall be provided to the allowed to file an application for asylum (a)(1)(vii) by removing the words immigration judge with the negative ‘‘§ 1235.3 of this chapter’’ and adding in and for withholding of removal before determination. In the absence of the immigration judge in accordance their place the words ‘‘§ 235.3 of chapter exceptional circumstances, such review I’’. with 8 CFR 1208.4(b)(3)(iii). The shall be conducted by the immigration immigration judge shall decide the judge within 10 days of the filing of the PART 1235—INSPECTION OF application as provided in that section. Notice of Referral to the Immigration PERSONS APPLYING FOR ADMISSION Such application shall be considered de Judge with the immigration court. Upon novo in all respects by an immigration review of the asylum officer’s negative ■ 36. The authority citation for part judge regardless of any determination reasonable fear determination: 1235 continues to read as follows: made under this paragraph. Such (1) If the immigration judge concurs Authority: 8 U.S.C. 1101 and note, 1103, decision on that application may be with the asylum officer’s determination 1183, 1185 (pursuant to E.O. 13323, 69 FR appealed by either the stowaway or DHS that the alien does not have a reasonable 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, to the Board of Immigration Appeals. If fear of persecution or torture, the case 1225, 1226, 1228, 1365a note, 1379, 1731–32; a denial of the application for asylum shall be returned to DHS for removal of Title VII of Public Law 110–229; 8 U.S.C. and for withholding of removal becomes the alien. No appeal shall lie from the 1185 note (section 7209 of Public Law 108– final, and deferral of removal has not immigration judge’s decision. 458). otherwise been granted pursuant to 8 (2) If the immigration judge finds that §§ 1235.1, 1235.2, 1235.3, and 1235.5 CFR 1208.17(a), the alien shall be the alien has a reasonable fear of [Removed and Reserved] removed from the United States in persecution or torture, the alien may submit an Application for Asylum and ■ 37. Remove and reserve §§ 1235.1, accordance with section 235(a)(2) of the 1235.2, 1235.3, and 1235.5. Act. If an approval of the application for for Withholding of Removal. Such ■ asylum, withholding of removal, or, as application shall be considered de novo 38. Amend § 1235.6 by: ■ pertinent, deferral of removal becomes in all respects by an immigration judge a. Removing paragraphs (a)(1)(ii) and final, DHS shall terminate removal regardless of any determination made (iii); ■ proceedings under section 235(a)(2) of under this paragraph. b. Redesignating paragraph (a)(1)(iv) (i) The immigration judge shall as paragraph (a)(1)(ii) and revising it; the Act. consider only the alien’s application for ■ c. Revising paragraphs (a)(2)(ii) and ■ 32. Amend § 1208.31 by revising withholding of removal under 8 CFR (iii); and paragraphs (f) and (g) to read as follows: 1208.16 and shall determine whether ■ d. Adding paragraph (c).

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The revisions and addition read as persecution, or reasonable possibility of Authority: 8 U.S.C. 1103, 1254, 1254a follows: torture, and the alien requests a review note, 8 CFR part 2. of that determination by an immigration ■ § 1235.6 Referral to immigration judge. judge; or 40. Amend § 1244.4 by revising (a) * * * paragraph (b) to read as follows: (1) * * * * * * * * (ii) If an immigration officer verifies (iii) If an immigration officer refers an § 1244.4 Ineligible aliens. that an alien subject to expedited applicant in accordance with the * * * * * provisions of § 208.30 or § 208.31. removal under section 235(b)(1) of the (b) Is an alien described in section Act has been admitted as a lawful * * * * * 208(b)(2)(A) of the Act. permanent resident or refugee, or (c) The provisions of part 1235 are granted asylum, or, upon review separate and severable from one Chad R. Mizelle, pursuant to § 235.3(b)(5)(iv) of chapter I, another. In the event that any provision Senior Official Performing the Duties of the an immigration judge determines that in part 1235 is stayed, enjoined, not General Counsel, U.S. Department of the alien was once so admitted or implemented, or otherwise held invalid, Homeland Security. granted asylum, provided that such the remaining provisions shall Dated: December 2, 2020. status has not been terminated by final nevertheless be implemented as an William P. Barr, administrative action, and DHS initiates independent rule and continue in effect. removal proceedings against the alien Attorney General. under section 240 of the Act. PART 1244—TEMPORARY [FR Doc. 2020–26875 Filed 12–10–20; 8:45 am] * * * * * PROTECTED STATUS FOR BILLING CODE 4410–30–P; 9111–97–P (2) * * * NATIONALS OF DESIGNATED STATES (i) If an asylum officer determines that an alien does not have a credible fear of ■ 39. The authority citation for part persecution, reasonable possibility of 1244 continues to read as follows:

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