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Federal Register/Vol. 85, No. 239/Friday, December 11, 2020 80274 Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Rules and Regulations 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. VerDate Sep<11>2014 00:59 Dec 11, 2020 Jkt 253001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\11DER2.SGM 11DER2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Rules and Regulations 80275 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.
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