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69640

Proposed Rules Federal Register Vol. 84, No. 244

Thursday, December 19, 2019

This section of the FEDERAL REGISTER • Federal eRulemaking Portal: http:// information includes personally contains notices to the public of the proposed www.regulations.gov. Follow the identifiable information (such as a issuance of rules and regulations. The instructions for submitting comments. person’s name, address, or any other purpose of these notices is to give interested • Mail: Lauren Alder Reid, Assistant data that might personally identify that persons an opportunity to participate in the Director, Office of Policy, individual) that the commenter rule making prior to the adoption of the final rules. Office for Immigration Review, 5107 voluntarily submits. You may wish to Leesburg Pike, Suite 2616, Falls Church, consider limiting the amount of VA 22041. To ensure proper handling, personal information that you provide DEPARTMENT OF HOMELAND please reference EOIR Docket No. 18– in any voluntary public comment SECURITY 0002 on your correspondence. This submission you make to the mailing address may be used for paper, Departments. The Departments may U.S. and Immigration disk, or CD–ROM submissions. withhold information provided in Services • Hand Delivery/Courier: Lauren comments from public viewing that they Alder Reid, Assistant Director, Office of determine may impact the of an 8 CFR Part 208 Policy, Executive Office for Immigration individual or is offensive. For additional Review, 5107 Leesburg Pike, Suite 2616, RIN 1615–AC41 information, please read the Privacy Act Falls Church, VA 22041. Contact notice that is available via the link in DEPARTMENT OF JUSTICE Telephone Number (703) 305–0289 (not the footer of http://www.regulations.gov. a toll-free call). If you want to submit personally Executive Office for Immigration FOR FURTHER INFORMATION CONTACT: identifiable information as part of your Review Lauren Alder Reid, Assistant Director, comment, but do not want it to be Office of Policy, Executive Office for posted online, you must include the 8 CFR Part 1208 Immigration Review, 5107 Leesburg phrase ‘‘PERSONALLY IDENTIFIABLE Pike, Suite 2616, Falls Church, VA INFORMATION’’ in the first paragraph [EOIR Docket No. 18–0002; A.G. Order No. 22041, Contact Telephone Number (703) of your comment and precisely and 4592–2019] 305–0289 (not a toll-free call). prominently identify the information for RIN 1125–AA87 Maureen Dunn, Chief, Division of which you seek redaction. Humanitarian Affairs, Office of Policy If you want to submit confidential Procedures for Asylum and Bars to and Strategy, U.S. Citizenship and business information as part of your Asylum Eligibility Immigration Services, U.S. Citizenship comment, but do not want it to be and Immigration Services (USCIS), DHS, AGENCY: Executive Office for posted online, you must include the 20 Massachusetts NW, Washington, DC Immigration Review, Department of phrase ‘‘CONFIDENTIAL BUSINESS 20529–2140; Contact Telephone Justice; U.S. Citizenship and INFORMATION’’ in the first paragraph Number (202) 272–8377 (not a toll-free Immigration Services, Department of of your comment and precisely and call). Homeland Security. prominently identify the confidential SUPPLEMENTARY INFORMATION: business information for which you seek ACTION: Joint notice of proposed redaction. If a comment has so much rulemaking. I. Public Participation confidential business information that it SUMMARY: The Department of Justice and Interested persons are invited to cannot be effectively redacted, all or the Department of Homeland Security participate in this rulemaking by part of that comment may not be posted (collectively, ‘‘the Departments’’) submitting written data, views, or on www.regulations.gov. Personally propose to amend their respective arguments on all aspects of this rule. identifiable information and regulations governing the bars to asylum The Departments also invite comments confidential business information eligibility. The Departments also that relate to the economic, provided as set forth above will be propose to clarify the effect of criminal environmental, or federalism effects that placed in EOIR’s public docket file, but and to remove their might result from this rule. Comments not posted online. To inspect the public respective regulations governing the must be submitted in English, or an docket file in person, you must make an automatic reconsideration of English translation must be provided. appointment with EOIR. Please see the discretionary denials of asylum To provide the most assistance to the FOR FURTHER INFORMATION CONTACT applications. Departments, comments should paragraph above for the contact reference a specific portion of the rule; information specific to this rule. DATES: Written or electronic comments explain the reason for any II. Background must be submitted on or before January recommended change; and include data, 21, 2020. Written comments postmarked information, or authority that support Asylum is a discretionary on or before that date will be considered the recommended change. immigration benefit that generally can timely. The electronic Federal Docket All comments submitted for this be sought by eligible aliens who are Management System will accept rulemaking should include the agency physically present or arriving in the comments prior to midnight eastern name and EOIR Docket No. 18–0002. , irrespective of their time at the end of that day. Please note that all comments received status, as provided in section 208 of the ADDRESSES: You may submit comments, are considered part of the public record Immigration and Act identified by EOIR Docket No. 18–0002, and made available for public (‘‘INA’’), 8 U.S.C. 1158. Congress, by one of the following methods: inspection at www.regulations.gov. Such however, has provided that certain

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categories of aliens cannot receive Department of Justice continue to regulations, but exercised his discretion asylum and has further delegated to the adjudicate all defensive asylum to retain the mandatory bars to asylum Attorney General and the Secretary of applications made by aliens during the eligibility related to of Homeland Security (‘‘Secretary’’) the removal process and review affirmative others on account of a protected ground, authority to promulgate regulations asylum applications referred by USCIS of a particularly serious establishing additional bars on to the immigration courts. See 8 U.S.C. in the United States, firm eligibility to the extent consistent with 1101(b)(4); 8 CFR 1208.2. See generally resettlement in another country, and the the asylum statute, as well as the Dhakal v. Sessions, 895 F.3d 532, 536– existence of reasonable grounds to authority to establish ‘‘any other 37 (7th Cir. 2018) (describing affirmative regard the as a danger to the conditions or limitations on the and defensive asylum processes). The security of the United States. See Aliens consideration of an application for Board of Immigration Appeals within and Nationality; Asylum and asylum’’ that are consistent with the the Department of Justice, in turn, hears Withholding of Procedures, INA. See INA 208(b)(2)(C), (d)(5)(B), 8 appeals from immigration judges’ 55 FR 30674–01, 30678, 30683 (July 27, U.S.C. 1158(b)(2)(C), (d)(5)(B). This decisions. 8 CFR 1003.1. In addition, the 1990); see also Yang v. INS, 79 F.3d 932, proposed rule will limit aliens’ HSA amended the INA to mandate 936–39 (9th Cir. 1996) (upholding firm eligibility for this discretionary benefit ‘‘[t]hat determination and ruling by the resettlement bar); Komarenko v. INS, 35 if they fall within certain categories Attorney General with respect to all F.3d 432, 436 (9th Cir. 1994) (upholding related to criminal behavior. The questions of law shall be controlling.’’ 8 particularly serious crime bar), proposed rule will also eliminate a U.S.C. 1103(a)(1). This broad division of abrogated on other grounds by Abebe v. regulation concerning the automatic functions and authorities informs the Mukasey, 554 F.3d 1203 (9th Cir. 2009) reconsideration of discretionary denials background of this proposed rule. (). In 1990, Congress added of asylum applications. another mandatory bar for those with B. Domestic Legal Framework for aggravated convictions. A. Joint Notice of Proposed Rulemaking Asylum Immigration Act of 1990, Public Law The Attorney General and the Acting Asylum is a form of discretionary 101–649, sec. 515, 104 Stat. 4987. Secretary of Homeland Security publish relief under section 208 of the INA, 8 With the passage of the Illegal this joint notice of proposed rulemaking U.S.C. 1158, that precludes an alien Immigration Reform and Immigrant in the exercise of their respective from being subject to removal, creates a Responsibility Act (‘‘IIRIRA’’) in 1996, authorities concerning asylum path to lawful permanent resident status Congress added three more categorical determinations. and citizenship, and affords a variety of bars on the ability to apply for asylum, The Homeland Security Act of 2002, other ancillary benefits, such as for: (1) Aliens who can be removed to Public Law 107–296, as amended (‘‘the allowing certain alien members a safe third country pursuant to a Act’’ or ‘‘the HSA’’), transferred many to obtain lawful immigration status bilateral or multilateral agreement; (2) functions related to the execution of derivatively. See R–S–C v. Sessions, 869 aliens who failed to apply for asylum federal immigration law to the newly F.3d 1176, 1180 (10th Cir. 2017); see within one year of arriving in the United created Department of Homeland also, e.g., INA 208(c)(1)(A), (C), 8 U.S.C. States; and (3) aliens who have Security (‘‘DHS’’). The Act charges the 1158(c)(1)(A), (C) (asylees cannot be previously applied for asylum and had Secretary ‘‘with the administration and removed and can travel abroad without the application denied. Public Law 104– enforcement of this chapter and all prior consent); INA 208(b)(3), 8 U.S.C. 208, div. C, sec. 604. Congress also other laws relating to the immigration 1158(b)(3) (allowing derivative asylum adopted six mandatory bars to asylum and of aliens,’’ 8 U.S.C. for asylee’s spouse and unmarried eligibility that largely reflected the pre- 1103(a)(1), and grants the Secretary the children); INA 209(b), 8 U.S.C. 1159(b) existing, discretionary bars set forth in power to take all actions ‘‘necessary for (allowing the Attorney General or the Attorney General’s existing asylum carrying out’’ the provisions of the Secretary to adjust the status of an regulations. These bars cover (1) aliens immigration and nationality laws, id. asylee to that of a lawful permanent who ‘‘ordered, incited, or otherwise 1103(a)(3). The Act also transferred to resident); INA 316(a), 8 U.S.C. 1427(a) participated’’ in the persecution of U.S. Citizenship and Immigration (describing requirements for others; (2) aliens convicted of a Services (‘‘USCIS’’) responsibility for naturalization of lawful permanent ‘‘particularly serious crime’’ in the affirmative asylum applications, i.e., residents). Aliens who are granted United States; (3) aliens who committed applications for asylum made outside asylum are authorized to work in the a ‘‘serious nonpolitical crime outside the removal context. See 6 U.S.C. United States and to receive certain the United States’’ before arriving in the 271(b)(3). If an alien is not in removal financial assistance from the Federal United States; (4) aliens who are a proceedings or is an unaccompanied Government. See INA 208(c)(1)(B), ‘‘danger to the security of the United alien child, DHS asylum officers (d)(2), 8 U.S.C. 1158(c)(1)(B), (d)(2); 8 States;’’ (5) aliens who are inadmissible determine in the first instance whether U.S.C. 1612(a)(2)(A), (b)(2)(A); 8 U.S.C. or removable under a set of specified an alien’s asylum application should be 1613(b)(1); 8 CFR 274a.12(a)(5); see also grounds relating to terrorist activity; and granted. See 8 CFR 208.9. 8 CFR 274a.12(c)(8) (providing that (6) aliens who were ‘‘firmly resettled’’ in At the same time, the Act retained for asylum applicants may seek another country prior to arriving in the the Attorney General authority over employment authorization 150 days United States. Id. (codified at 8 U.S.C. certain individual immigration after filing a complete application for 1158(b)(2) (1997)). Congress further , including those related to asylum). added that aggravated , defined asylum. These proceedings are In 1980, the Attorney General, in his in 8 U.S.C. 1101(a)(43), would be conducted by the Department of Justice discretion, established several considered ‘‘particularly serious through the Executive Office for mandatory bars to asylum eligibility. crime[s].’’ Id. (codified at 8 U.S.C. Immigration Review (‘‘EOIR’’), subject See 8 CFR 208.8(f) (1980); Aliens and 1158(b)(2)(B)(i) (1997)). to the direction and regulation of the Nationality; and Asylum Although Congress has enacted Attorney General. See 6 U.S.C. 521; 8 Procedures, 45 FR 37392, 37392 (June 2, specific asylum eligibility bars, that U.S.C. 1103(g). Accordingly, 1980). In 1990, the Attorney General statutory list is not exhaustive. immigration judges within the substantially amended the asylum Congress, in IIRIRA, further provided

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the Attorney General with the authority Aliens must also establish that they application for asylum that is submitted to establish by regulation ‘‘any other are otherwise eligible for asylum, by an alien in is conditions or limitations on the meaning that they are not subject to one also automatically deemed an consideration of an application for of the statutory bars to asylum or any application for statutory withholding of asylum,’’ so long as those limitations are ‘‘additional limitations and conditions removal under section 241(b)(3) of the ‘‘not inconsistent with this chapter.’’ . . . under which an alien shall be INA, 8 U.S.C. 1231(b)(3). See 8 CFR INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B); ineligible for asylum’’ established by 1208.3(b). An immigration judge may see also INA 208(b)(2)(C), 8 U.S.C. regulation. See INA 208(b)(2)(C), 8 also consider an alien’s eligibility for 1158(b)(2)(C). Aliens who apply for U.S.C. 1158(b)(2)(C). The INA currently withholding and deferral of removal asylum must satisfy two criteria. They bars from asylum eligibility any alien under regulations implementing U.S. must establish that they (1) are who (1) ‘‘ordered, incited, assisted, or obligations under Article 3 of the statutorily eligible for asylum; and (2) otherwise participated in the Convention against and Other merit a favorable exercise of discretion. persecution of any person on account Cruel, Inhuman or Degrading Treatment INA 208(b)(1)(A), 240(c)(4)(A), 8 U.S.C. of’’ a protected ground; (2) ‘‘having been or (‘‘CAT’’), which were 1158(b)(1)(A), 1229a(c)(4)(A); Matter of convicted by a final judgment of a issued pursuant to section 2242 of the A–B–, 27 I&N Dec. 316, 345 n.12 (A.G. particularly serious crime, constitutes a Foreign Affairs Reform and 2018), abrogated on other grounds by danger to the community of the United Restructuring Act of 1998, Public Law Grace v. Whitaker, 344 F. Supp. 3d 96, States;’’ (3) ‘‘has committed a serious 105–277 (8 U.S.C. 1231 note). See 8 CFR 140 (D.D.C. 2018); see also, e.g., Fisenko nonpolitical crime outside the United 1208.13(c)(1); see also 8 CFR 1208.16(c) v. Lynch, 826 F.3d 287, 291 (6th Cir. States’’ prior to arrival in the United through 1208.18. 2016); Kouljinski v. Keisler, 505 F.3d States; (4) constitutes ‘‘a danger to the These forms of protection prohibit 534, 541–42 (6th Cir. 2007); Gulla v. security of the United States;’’ (5) is removal to any country where the alien Gonzales, 498 F.3d 911, 915 (9th Cir. described in the terrorism-related would more likely than not be 2007); Dankam v. Gonzales, 495 F.3d inadmissibility grounds, with limited persecuted on account of a protected 113, 120 (4th Cir. 2007); Krastev v. INS, exception; or (6) ‘‘was firmly resettled in ground or tortured. Applying the 292 F.3d 1268, 1270 (10th Cir. 2002). As another country prior to arriving in the relevant standard, if an alien proves that United States.’’ INA 208(b)(2)(A)(i)–(vi), the Attorney General recently observed, it is more likely than not that the alien’s 8 U.S.C. 1158(b)(2)(A)(i)–(vi). ‘‘[a]sylum is a discretionary form of life or freedom would be threatened on Aliens who fall within one of these relief from removal, and an applicant account of a protected ground, but is bears the burden of proving not only bars are subject to mandatory denial of asylum. Where there is evidence that denied asylum for some other reason— statutory eligibility for asylum but that for instance, because of an eligibility bar he also merits asylum as a matter of ‘‘one or more of the grounds for mandatory denial of the application for or a discretionary denial of asylum—the discretion.’’ Matter of A–B–, 27 I&N Dec. alien may be entitled to statutory at 345 n.12; see also Moncrieffe v. relief may apply,’’ the applicant in immigration court proceedings bears the withholding of removal if not otherwise Holder, 569 U.S. 184, 187 (2013) statutorily barred. INA 241(b)(3)(A), 8 (describing asylum as a form of burden of establishing that the bar at issue does not apply. 8 CFR 1240.8(d); U.S.C. 1231(b)(3)(A); 8 CFR 208.16, ‘‘discretionary relief from removal’’); 1208.16; see also Garcia v. Sessions, 856 Delgado v. Mukasey, 508 F.3d 702, 705 see also, e.g., Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008) (applying F.3d 27, 40 (1st Cir. 2017) (2d Cir. 2007) (‘‘Asylum is a 8 CFR 1240.8(d) in the context of the (‘‘[W]ithholding of removal has long discretionary form of relief .... Once aggravated felony bar to asylum); Su been understood to be a mandatory an applicant has established eligibility Qing Chen v. U.S. Att’y Gen., 513 F.3d protection that must be given to certain . . . , it remains within the Attorney 1255, 1257 (11th Cir. 2008) (applying 8 qualifying aliens, while asylum has General’s discretion to deny asylum.’’). CFR 1240.8 in the context of the never been so understood.’’). Likewise, With respect to eligibility for asylum, persecutor bar); Xu Sheng Gao v. U.S. an alien who establishes that it is more section 208 of the INA provides that an Att’y Gen., 500 F.3d 93, 98 (2d Cir. likely than not that he or she would be applicant must (1) be ‘‘physically 2007) (same). tortured if removed to the proposed present’’ or ‘‘arrive[ ]’’ in the United Because asylum is a discretionary country of removal will qualify for CAT States, INA 208(a)(1), 8 U.S.C. benefit, aliens who are eligible for protection. See 8 CFR 1208.16(c) 1158(a)(1); (2) meet the statutory asylum are not automatically entitled to through 1208.18. But, unlike asylum, definition of a ‘‘refugee,’’ INA it. Rather, after demonstrating statutory withholding and CAT 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); and eligibility, aliens must further meet their protection do not (1) prohibit the (3) otherwise be eligible for asylum, INA burden of showing that the Attorney Government from removing the alien to 208(b)(2), 8 U.S.C. 1158(b)(2); 8 CFR General or Secretary should exercise his a third country where the alien does not 1240.8(d). or her discretion to grant asylum. See face persecution or torture, regardless of In general, a refugee is someone who INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) whether the country is a party to a is outside of his country of nationality (the ‘‘Secretary of Homeland Security or bilateral or multilateral agreement and who is unable or unwilling to the Attorney General may grant asylum specifically authorizing such removal, return to that country ‘‘because of to an alien’’ who applies in accordance contra 8 U.S.C. 1158(a)(2)(A) (denying persecution or a well-founded fear of with the required procedures and meets eligibility to apply for asylum ‘‘if the persecution on account of race, religion, the definition of a refugee (emphasis Attorney General determines that the nationality, membership in a particular added)); Matter of A–B–, 27 I&N Dec. at alien may be removed, pursuant to a social group, or political opinion.’’ INA 345 n.12; Matter of Pula, 19 I&N Dec. bilateral or multilateral agreement, to a 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A). 467, 474 (BIA 1987). [third] country’’); (2) create a path to The alien bears the to Additionally, aliens whose asylum lawful permanent resident status and establish that he meets eligibility applications are denied may citizenship; or (3) afford the same criteria, including that he qualifies as a nonetheless be able to obtain protection ancillary benefits (such as derivative refugee. INA 208(b)(1)(B)(i), 8 U.S.C. from removal under other provisions of protection for family members). See R– 1158(b)(1)(B)(i). the immigration laws. A defensive S–C, 869 F.3d at 1180.

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C. Bars to Eligibility for Asylum regulations, but exercised his discretion eligibility—the bars for ‘‘particularly Eligibility for asylum has long been to retain the mandatory bars to asylum serious ’’ and ‘‘serious qualified both by statutory bars and by eligibility for persecution of others on nonpolitical offenses.’’ See id. Although the discretion of the Attorney General account of a protected ground, Congress prescribed that all aggravated and the Secretary to create additional conviction of a particularly serious felonies constitute particularly serious bars. Those bars have developed over crime in the United States, firm crimes, Congress further provided that time in a back-and-forth process resettlement in another country, and the Attorney General may ‘‘designate by between Congress and the Attorney reasonable grounds to regard the alien regulation offenses that will be General. The original asylum as a danger to the security of the United considered’’ a ‘‘particularly serious provisions, as set out in the States. See 55 FR at 30683; see also crime,’’ by reason of which the offender of 1980, Public Law 96–212, simply Yang, 79 F.3d at 936–39 (upholding ‘‘constitutes a danger to the community directed the Attorney General to firm resettlement bar); Komarenko, 35 of the United States.’’ INA F.3d at 436 (upholding particularly 208(b)(2)(A)(ii), (B)(ii), 8 U.S.C. ‘‘establish a procedure for an alien serious crime bar). In the Immigration 1158(b)(2)(A)(iii), (B)(ii). Courts and the physically present in the United States Act of 1990, Congress added an Board of Immigration Appeals (‘‘Board’’) or at a land border or port of entry, additional mandatory bar to eligibility have long held that this grant of irrespective of such alien’s status, to to apply for or be granted asylum for authority also authorizes the Board to apply for asylum,’’ and provided that ‘‘an[y] alien who has been convicted of identify additional particularly serious ‘‘the alien may be granted asylum in the an aggravated felony.’’ Public Law 101– crimes (beyond aggravated felonies) discretion of the Attorney General if the 649, sec. 515, 104 Stat. 4987. through case-by-case . See, Attorney General determines that such In 1996, with the passage of IIRIRA e.g., Delgado v. Holder, 648 F.3d 1095, alien is a refugee’’ within the meaning and the Antiterrorism and Effective 1106 (9th Cir. 2011) (en banc); Ali v. of the title. 8 U.S.C. 1158(a) (1994); see Death Penalty Act of 1996, Public Law Achim, 468 F.3d 462, 468–69 (7th Cir. also INS v. Cardoza-Fonseca, 480 U.S. 104–132, Congress amended the asylum 2006). Congress likewise authorized the 421, 427–29 (1987) (describing the 1980 provisions in section 208 of the INA, 8 Attorney General to designate by provisions). U.S.C. 1158. Among other amendments, regulation offenses that constitute ‘‘a In the 1980 implementing regulations, Congress created three categories of serious nonpolitical crime outside the the Attorney General, in his discretion, aliens who are barred from applying for United States prior to the arrival of the established several mandatory bars to asylum: (1) Aliens who can be removed alien in the United States.’’ INA asylum eligibility that were modeled on to a safe third country pursuant to 208(b)(2)(A)(iii), (B)(ii), 8 U.S.C. the mandatory bars to eligibility for bilateral or multilateral agreement; (2) 1158(b)(2)(A)(iii), (B)(ii).1 withholding of deportation under the aliens who failed to apply for asylum In addition to authorizing the existing section 243(h) of the INA. See within one year of arriving in the United discretionary expansion of crimes that 8 CFR 208.8(f) (1980); 45 FR at 37392 States; and (3) aliens who have would constitute particularly serious (‘‘The application will be denied if the previously applied for asylum and had crimes or serious nonpolitical offenses, alien does not come within the the application denied. Public Law 104– Congress further provided the Attorney definition of refugee under the Act, is 208, div. C, sec. 604. General with the authority to establish firmly resettled in a third country, or is Congress also adopted six mandatory by regulation ‘‘any other conditions or within one of the undesirable groups bars to asylum eligibility that largely limitations on the consideration of an described in section 243(h) of the Act, reflected the pre-existing, discretionary application for asylum,’’ so long as e.g., having been convicted of a serious bars set forth in the Attorney General’s those limitations are ‘‘not inconsistent crime, constitutes a danger to the United existing asylum regulations. These bars with this chapter.’’ INA 208(d)(5)(B), 8 States.’’). Those regulations required cover (1) aliens who ‘‘ordered, incited, U.S.C. 1158(d)(5)(B); see also INA denial of an asylum application if it was or otherwise participated’’ in the 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C) determined that (1) the alien was not a persecution of others; (2) aliens (allowing for the establishment by refugee within the meaning of section convicted of a ‘‘particularly serious regulation of ‘‘additional limitations and 101(a)(42) of the INA; (2) the alien was crime’’ in the United States; (3) aliens conditions, consistent with this section, firmly resettled in a foreign country who committed a ‘‘serious nonpolitical under which an alien shall be ineligible before arriving in the United States; (3) crime outside the United States’’ before for asylum’’). As the Tenth Circuit has the alien ordered, incited, assisted, or arriving in the United States; (4) aliens recognized, ‘‘[t]his delegation of otherwise participated in the who are a ‘‘danger to the security of the authority means that Congress was persecution of any person on account of United States;’’ (5) aliens who are prepared to accept administrative race, religion, nationality, membership inadmissible or removable under a set of dilution of the asylum guarantee in in a particular group, or political specified grounds relating to terrorist § 1158(a)(1),’’ given that ‘‘the statute opinion; (4) the alien had been activity; and (6) aliens who were ‘‘firmly clearly empowers’’ the Attorney General convicted by a final judgment of a resettled’’ in another country prior to and the Secretary to ‘‘adopt[ ] further particularly serious crime and therefore arriving in the United States. Id. limitations’’ on asylum eligibility. R–S– constituted a danger to the community (codified at 8 U.S.C. 1158(b)(2) (1997)). C, 869 F.3d at 1187 & n.9. In providing of the United States; (5) there were Congress further added that aggravated for ‘‘additional limitations and serious reasons for considering that the felonies, defined in 8 U.S.C. 1101(a)(43), conditions,’’ the statute gives the alien has committed a serious non- would be considered ‘‘particularly Attorney General and the Secretary political crime outside the United States serious crime[s].’’ Id. (codified at 8 broad authority in determining what the prior to the arrival of the alien in the U.S.C. 1158(b)(2)(B)(i) (1997)). ‘‘limitations and conditions’’ should Although Congress has enacted United States; or (6) there were be—e.g., based on non-criminal or specific asylum eligibility bars, that reasonable grounds for regarding the procedural grounds like the existing alien as a danger to the security of the statutory list is not exhaustive. United States. 45 FR at 37394–95. Congress, in IIRIRA, expressly 1 Although these provisions continue to refer only In 1990, the Attorney General authorized the Attorney General to to the Attorney General, those authorities also lie substantially amended the asylum expand upon two bars to asylum with the Secretary by operation of the HSA.

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exceptions for firm resettlement, INA D. United States Laws Implementing including a bar to refugee status for 208(b)(2)(A)(vi), 8 U.S.C. International Obligations those who committed serious 1158(b)(2)(A)(vi), or based on filing time The proposed rule is consistent with nonpolitical crimes outside the country limits, INA 208(a)(2)(B), 8 U.S.C. U.S. obligations under the 1967 Protocol of refuge prior to their entry into the 1158(a)(2)(B), or based on certain relating to the Status of country of refuge that sought ‘‘to protect criminal activity, INA 208(b)(2)(A)(ii), 8 (‘‘Refugee Protocol’’) (incorporating the community of a receiving country U.S.C. 1158(b)(2)(A)(ii). The additional Articles 2 through 34 of the 1951 from the danger of admitting a refugee limitations on eligibility must simply be Convention relating to the Status of who has committed a serious common established ‘‘by regulation,’’ and must Refugees (‘‘Refugee Convention’’)) and crime.’’ Id. ¶ 151. As noted above, be ‘‘consistent with’’ the rest of 8 U.S.C. the CAT. Neither the 1967 Refugee Congress has long recognized this 1158. Protocol nor the CAT is self-executing. principle in U.S. law by imposing See Khan v. Holder, 584 F.3d 773, 783 various statutory bars to eligibility for Thus, the Attorney General in the past asylum and by authorizing the creation has invoked section 208(b)(2)(C) of the (9th Cir. 2009) (‘[T]he [1967 Refugee] Protocol is not self-executing.’’); of new bars to eligibility through INA to limit eligibility for asylum based regulation.3 on a ‘‘fundamental change in Auguste v. Ridge, 395 F.3d 123, 132 (3d Cir. 2005) (the CAT ‘‘was not self- circumstances’’ and on the ability of an III. Regulatory Changes executing’’). Therefore, these are applicant to safely relocate internally The Departments now propose to (1) not directly enforceable in U.S. law, but within a country. See Asylum establish additional bars to eligibility for some of the obligations they contain asylum for aliens with certain criminal Procedures, 65 FR 76121, 76127 (Dec. 6, have been implemented by domestic 2000) (codified at 8 CFR convictions; (2) clarify the effect of legislation. For example, the United criminal convictions; and (3) remove the 208.13(b)(1)(i)(A) and (B)). The courts States has implemented the non- have also viewed this provision as a regulations regarding reconsideration of refoulement provisions of these discretionary denials of asylum. broad authority, and have suggested that treaties—i.e., provisions prohibiting the ineligibility based on fraud would be The Attorney General possesses return of an individual to a country general authority under section authorized under it. See Nijjar v. where he or she would face persecution Holder, 689 F.3d 1077, 1082 (9th Cir. 103(g)(2) of the INA, 8 U.S.C. 1103(g)(2), or torture—through the withholding of to ‘‘establish such regulations . . . as 2012) (noting that fraud can be ‘‘one of removal provisions at section 241(b)(3) the Attorney General determines to be the ‘additional limitations . . . under of the INA and the CAT regulations, not necessary for carrying out this section.’’ which an alien shall be ineligible for through the asylum provisions at See Tamenut v. Mukasey, 521 F.3d asylum’ that the Attorney General is section 208 of the INA. See Cardoza- 1000, 1004 (8th Cir. 2008) (en banc) (per authorized to establish by regulation’’). Fonseca, 480 U.S. at 440–41. The curiam) (describing section 1103(g)(2) as The current statutory framework proposed rule is consistent with those ‘‘a general grant of regulatory accordingly leaves the Attorney General obligations because it affects only authority’’). Similarly, Congress has (and, after the HSA, the Secretary) eligibility for asylum. It does not affect conferred upon the Secretary the significant discretion to adopt grants of the statutory withholding of authority to ‘‘establish such regulations additional bars to asylum eligibility. removal or protection under the CAT . . . as he deems necessary for carrying Congress has expressly identified one regulations. See R–S–C, 869 F.3d at 1188 out his authority under the provisions of class of particularly serious crimes— n. 11; Cazun v. Att’y Gen., 856 F.3d 249, [the INA].’’ INA 103(a)(1), (3), 8 U.S.C. aggravated felonies—so that aliens who 257 (3d Cir. 2017); Ramirez-Mejia v. 1103(a)(1), (3). commit such offenses are categorically Lynch, 813 F.3d 240, 241 (5th Cir. 2016). Additionally, the Attorney General ineligible for asylum and there is no Limitations on eligibility for asylum and the Secretary have authority to discretion to grant such aliens asylum are also consistent with Article 34 of the promulgate this proposed rule under under any circumstances. Congress has 1951 Refugee Convention, concerning sections 208(b)(2)(B)(ii) and (C) of the left the task of further defining assimilation of refugees, as INA, 8 U.S.C. 1158(b)(2)(B)(ii) and (C). implemented by 8 U.S.C. 1158. Section particularly serious crimes or serious Under section 208(b)(2)(B)(ii), ‘‘[t]he 1158 reflects that Article 34 is precatory nonpolitical offenses to the discretion of Attorney General may designate by and not mandatory, and accordingly the Attorney General and the Secretary.2 regulation offenses that will be does not provide that all refugees shall And Congress has provided the considered to be a ‘‘particularly serious receive asylum. See Cardoza-Fonseca, Attorney General and Secretary with crime’’ under INA 208(b)(2)(A)(ii), 8 480 U.S. at 441; R–S–C, 869 F.3d at U.S.C. 1158(b)(2)(A)(ii), or a ‘‘serious additional discretion to establish by 1188; Mejia v. Sessions, 866 F.3d 573, regulation additional limitations or nonpolitical crime’’ under INA 588 (4th Cir. 2017); Garcia, 856 F.3d at 208(b)(2)(A)(iii), 8 U.S.C. conditions on eligibility for asylum. 42; Cazun, 856 F.3d at 257 & n.16; Those limitations may involve other Ramirez-Mejia, 813 F.3d at 241. 3 Courts have likewise rejected arguments that types of crimes or non-criminal Moreover, the state parties to the other provisions of the Refugee Convention require conduct, so long as the limitations are Refugee Convention sought to ‘‘deny every refugee to receive asylum. Courts have held, consistent with other aspects of the admission to their territories of in the context of upholding the bar on eligibility for asylum statute. asylum in reinstatement proceedings under section criminals who would present a danger 241(a)(5) of the INA, 8 U.S.C. 1231(a)(5), that to security and public order.’’ United limiting the ability to apply for asylum does not 2 ‘‘[A]n alien who has been convicted of an Nations High Comm’r for Refugees, constitute a prohibited ‘‘penalty’’ under Article aggravated felony (or felonies) for which the alien 31(1) of the Refugee Convention. Mejia, 866 F.3d at has been sentenced to an aggregate term of Handbook on Procedures and Criteria 588; Cazun, 856 F.3d at 257 n.16. Courts have also of at least 5 years shall be considered for Determining Refugee Status under rejected the argument that Article 28 of the Refugee to have committed a particularly serious crime. The the 1951 Convention and the 1967 Convention, governing issuance of international previous shall not preclude the Attorney Protocol relating to the Status of travel documents for refugees ‘‘lawfully staying’’ in General from determining that, notwithstanding the a country’s territory, mandates that every person length of sentence imposed, an alien has been Refugees ¶ 148 (1979) (edited Jan. 1992). who might qualify for withholding must also be convicted of a particularly serious crime.’’ H.R. Rep Accordingly, the Refugee Convention granted asylum. R–S–C, 869 F.3d at 1188; Garcia, No. 104–863, at 616 (1996). incorporated exclusion clauses, 856 F.3d at 42.

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1158(b)(2)(A)(iii). Under INA 1. Aliens Convicted of a Felony Under serious crimes. The Board has engaged 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), the Federal, State, Tribal, or Local Law in case-by-case adjudication to identify Attorney General may ‘‘by regulation The Departments are proposing to some particularly serious crimes, but establish additional limitations and implement a new bar on eligibility for this approach imposes significant conditions, consistent with [8 U.S.C. asylum for felony convictions. See 8 interpretive difficulties and costs, while 1158], under which an alien shall be U.S.C. 1158(b)(2)(B)(ii) and (C). Felonies producing unpredictable results. The ineligible for asylum under’’ INA are defined in the proposed rule as Supreme Court has employed the so- 208(b)(1). crimes designated as felonies by the called ‘‘categorical’’ approach, relevant or crimes established in Taylor v. United States, A. Additional Limitations on Eligibility 495 U.S. 575 (1990), and its progeny for Asylum punishable by more than one year’s imprisonment. such as Mathis v. United States, 136 S. The Departments propose to revise 8 In the first instance, the Attorney Ct. 2243 (2016), and Descamps v. CFR 208.13 and 1208.13 by adding General and the Secretary could United States, 133 S. Ct. 2276 (2013), to paragraphs (c)(6) through (8) to add bars reasonably exercise their discretion to determine when an offense constitutes on eligibility for asylum for certain classify felony offenses as particularly an aggravated felony. Under that aliens. First, the regulations would add serious crimes for purposes of 8 U.S.C. approach, courts must compare the bars on eligibility for asylum for aliens 1158(b)(2)(B)(ii). Congress defined elements of the statutory crime for who commit certain offenses in the ‘‘particularly serious crimes’’ in the which an alien was convicted with the United States after entering the country. asylum statute to expressly encompass generic elements of the specified federal aggravated felony. As a general matter, Those bars would apply to aliens who all aggravated felonies. See INA any mismatch between the elements are convicted of (1) a felony under 208(b)(2)(B)(i), 8 U.S.C. 1158(b)(2)(B)(i). means that the crime of conviction is federal or state law; (2) an offense under At present, the INA defines an not an aggravated felony (unless the 8 U.S.C. 1324(a)(1)(A) or 1324(a)(1)(2) aggravated felony by reference to an statute of conviction is divisible and the (Alien Smuggling or Harboring); (3) an enumerated list of 21 types of alien was convicted of a particular offense under 8 U.S.C. 1326 (Illegal convictions. INA 101(a)(43), 8 U.S.C. offense within the statute that would Reentry); (4) a federal, state, tribal, or 1101(a)(43). But Congress did not limit satisfy the generic definition of the local crime involving criminal street the definition of particularly serious gang activity; (5) certain federal, state, relevant aggravated felony). crimes to aggravated felonies. Rather, Courts, however, have repeatedly tribal, or local offenses concerning the Congress expressly authorized the operation of a motor vehicle while expressed frustration with the Attorney General to designate additional complexity of applying this approach. under the influence of an intoxicant; (6) particularly serious crimes through a federal, state, tribal, or local domestic See, e.g., United States v. Aguila-Montes regulation or by case-by-case de Oca, 655 F.3d 915, 917 (9th Cir. violence offense, or who are found by an adjudication. INA 208(b)(2)(B)(ii), 8 adjudicator to have engaged in acts of 2011), overruled by Descamps, 570 U.S. U.S.C. 1158(b)(2)(B)(ii); Delgado, 648 254 (‘‘In the twenty years since Taylor, or extreme cruelty in a domestic F.3d at 1106 (‘‘[t]here is little question context, even if no conviction resulted; we have struggled to understand the that [the asylum] provision permits the contours of the Supreme Court’s and (7) certain under Attorney General, by regulation, to make federal or state law for offenses related framework. Indeed, over the past particular crimes categorically decade, perhaps no other area of the law to false identification; the unlawful particularly serious’’ (emphasis receipt of public benefits from a federal, has demanded more of our resources.’’); omitted)); Gao v. Holder, 595 F.3d 549, see also Quarles v. United States, 139 S. state, tribal, or local entity; or the 556 (4th Cir. 2010) (‘‘we think that possession or trafficking of a controlled Ct. 1872, 1880 (2019) (Thomas, J., [s]ection 1158(b)(2)(B)(ii) . . . concurring); Williams v. United States, substance or controlled-substance empowers the Attorney General to paraphernalia. The Departments intend 927 F.3d 427, 446 (6th Cir. 2019) designate offenses which, like (Merritt, J., concurring); Lowe v. United that the criminal ineligibility bars aggravated felonies, will be considered would be limited only to aliens with States, 920 F.3d 414, 420 (6th Cir. 2019) per se particularly serious’’). By (Thapar, J., concurring) (‘‘in the convictions and—with a narrow defining ‘‘particularly serious crimes’’ to exception in the categorical-approach world, we cannot include all ‘‘aggravated felonies,’’ but call rape what it is .... [I]t is time for context 4—not based only on criminal then giving the Attorney General the Congress to revisit the categorical conduct for which the alien has not discretion to ‘‘designate by regulation approach so we do not have to live in been convicted. In addition, although 8 offenses that will be considered’’ a a fictional world where we call a violent U.S.C. 1101(a)(43) provides for the ‘‘particularly serious crime,’’ Congress rape non-violent’’); United States v. application of the aggravated felony made clear that the bar on asylum Evans, 924 F.3d 21, 31 (2d Cir. 2019) definition to offenses in violation of the eligibility for particularly serious crimes (observing that, although the court may law of a foreign country for which the necessarily includes, but is not limited resolve only an actual case or term of imprisonment was completed to, aggravated felonies. See INA controversy, ‘‘the categorical approach within the previous 15 years, this 208(b)(2)(A)(ii), (B)(ii), 8 U.S.C. paradoxically instructs courts resolving proposal is not intended to cover such 1158(b)(2)(A)(ii), (B)(ii); Delgado, 648 such cases to embark on an intellectual foreign convictions. F.3d at 1105–06 (explaining that the enterprise grounded in the facts of other asylum statute specifies two categories cases not before them, or even imagined 4 A conviction would not be required in certain of crimes that are per se particularly scenarios’’ (emphases in original)); situations involving battery or extreme cruelty. That conduct-specific inquiry is essentially identical to serious—aggravated felonies, and those United States v. Chapman, 866 F.3d the inquiry already undertaken in situations in that the Attorney General designates by 129, 136–39 (3d Cir. 2017) (Jordan, J., which an alien seeks to obtain immigration benefits regulation). concurring); United States v. Faust, 853 based on domestic violence that does not To date, the Attorney General has not F.3d 39, 60–61 (1st Cir. 2017) (Lynch, J., necessarily result in a conviction. See, e.g., INA 240A(b)(2)(A), 8 U.S.C. 1229b(b)(2)(A); 8 CFR used the above-described authority to concurring). 204.2(c)(1)(i)(E), (c)(1)(vi), (c)(2)(iv), (e)(1)(i)(E), promulgate regulations identifying Application of the categorical (e)(1)(vi), and (e)(2)(iv). additional categories of particularly approach has resulted in anomalous

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decisions in which aliens convicted of Ramirez v. Sessions, 882 F.3d 289, 291, a felony or .’’ U.S. a serious criminal offense have been 296 (1st Cir. 2018) (the Board did not err Sentencing Guidelines Manual § 4A1.2 found not to have been convicted of an in determining that an alien’s identity cmt. background (U.S. Sentencing aggravated felony. See, e.g., Harbin v. conviction was particularly serious Comm’n 2018). This calculation thus Sessions, 860 F.3d 58 (2d Cir. 2017) even though it was not an aggravated reflects a recognition that crimes with (holding that a New York controlled felony); Hamama v. INS, 78 F.3d 233, the potential for longer sentences tend substance law was not written in a way 240 (6th Cir. 1996) (the Board had to indicate that the offenders who that allowed it to be used as the basis power to declare certain commit such crimes are greater dangers for establishing that a convicted alien possession crimes ‘‘facially’’ to the community. was removable under the INA for drug particularly serious without an In addition, defining a felony to trafficking); Larios-Reyes v. Lynch, 843 individualized evaluation of the alien’s include such offenses would also be F.3d 146, 149–50 (4th Cir. 2016) (alien’s case, even if such crimes are not always consistent with the definition of felonies conviction under Maryland law for aggravated felonies); In re N–A–M–, 24 in other federal statutes. For instance, sexual abuse of a victim under the age I&N Dec. at 338–39 (felony menacing is convictions for crimes that states of 14 did not amount to the aggravated a particularly serious crime based on its designated as felonies may serve as felony of ‘‘sexual abuse of a minor’’). elements, though not an aggravated predicate ‘‘prior felony conviction[s]’’ The Board has rectified some anomalies felony). under the federal career offender statute. by determining that certain crimes, Nonetheless, this mix of case-by-case See United States v. Beasley, 12 F.3d though not aggravated felonies, are of a adjudication and per se rules is an 280, 282–84 (1st Cir. 1993); United inefficient means of identifying States v. Rivera, 996 F.2d 993, 994–97 sufficiently pernicious nature that they categories of offenses that should (9th Cir. 1993). should facially constitute particularly constitute particularly serious crimes. Furthermore, defining felonies to serious crimes that would disqualify The Board has only rarely exercised its include crimes that involve a possible aliens from eligibility for asylum or authority to designate categories of sentence of more than one year in withholding of removal. See Sopo v. offenses as facially or per se particularly would be generally consistent U.S. Att’y Gen., 739 F. App’x 554, 558 serious, and instead typically looks to a with the way that federal law defines (11th Cir. 2018) (the Board and wide and variable range of evidence in felonies. See, e.g., 5 U.S.C. 7313(b) (‘‘For immigration judges ‘‘may focus solely making an individualized determination the purposes of this section, ‘felony’ on the elements of the offense’’ to of a crime’s seriousness. See In re N–A– means any offense for which determine whether an offense is a M–, 24 I&N Dec. at 343–44; Matter of L– imprisonment is authorized for a term ‘‘particularly serious crime’’); In re N– S–, 22 I&N Dec. 645, 651 (BIA 1999). exceeding one year’’); cf. U.S.S.G. 2L1.2 A–M–, 24 I&N Dec. 336, 343 (BIA 2007) This case-by-case adjudication means cmt. n.2 (‘‘ ‘Felony’ means any federal, (explaining that ‘‘the proper focus for that aliens convicted of the exact same state, or local offense punishable by determining whether a crime is offense can receive different asylum imprisonment for a term exceeding one particularly serious is on the nature of treatment. For certain crimes—i.e., those year.’’). The Model Penal Code and most the crime,’’ and that its elements alone described in this notice of proposed states likewise define a felony as a crime may be dispositive); see also, e.g., rulemaking—the Attorney General and with a possible sentence in ‘‘excess of Ahmetovic v. INS, 62 F.3d 48, 52 (2d the Secretary have determined that the one year.’’ Model Penal Code § 1.04(2); Cir. 1995) (upholding the Board’s possibility of such inconsistency is not see 1 Wharton’s Criminal Law § 19 & determination that first-degree desirable and that a rule-based approach n.23 (15th ed.) (surveying state laws). manslaughter, while not an aggravated is instead warranted in this specific Finally, relying on the possibility of a felony, is per se ‘‘particularly serious’’ context. sentence in excess of one year—rather for asylum purposes). Furthermore, the The proposed rule would eliminate than on the actual sentence imposed— Board has looked at the individual the inefficiencies described above by would be consistent with Board circumstances of a crime to conclude providing that all felonies would adjudicating whether a that an even wider range of offenses can constitute particularly serious crimes. crime qualifies as ‘‘particularly serious’’ be considered particularly serious The determination of whether a crime for purposes of asylum or withholding crimes on an as-applied basis. See, e.g., would be a felony for purposes of eligibility. In that context, ‘‘the sentence Vaskovska v. Lynch, 655 F. App’x 880, asylum eligibility would depend on imposed is not a dominant factor in 884 (2d Cir. 2016) (the Board did not err whether the relevant jurisdiction determining whether a conviction is for in its individualized determination that defines the crime as a felony or whether a particularly serious crime’’ because an alien’s conviction for drug the statute of conviction allows for a the sentence actually imposed often possession was a particularly serious sentence of more than one year. depends on factors such as offender crime); Arbid v. Holder, 700 F.3d 379, Convictions for which sentences are characteristics that ‘‘may operate to 381 (9th Cir. 2012) (the Board did not longer tend to be associated with crimes reduce a sentence but do not diminish err in determining that an alien’s mail of a more consequential nature. For the gravity of [the] crime.’’ In re N–A– fraud conviction was particularly example, an offender’s ‘‘criminal history M–, 24 I&N Dec. at 343. serious even if not an aggravated category’’ for the purposes of sentencing Relying on the possibility of a felony). Even in the withholding for federal crimes ‘‘serves as [a] proxy sentence of over one year to define a context—where an alien is deemed to for the need to protect the public from felony would capture crimes of a have committed a particularly serious further crimes of the defendant.’’ United particularly serious nature because the crime if he has been convicted of an States v. Hayes, 762 F.3d 1300, 1314 n.8 offenders who commit such crimes aggravated felony (or felonies) for which (11th Cir. 2014); see also id. (‘‘In other are—as a general matter—more likely to the sentence was an aggregate term of words, it is a proxy for recidivism.’’). be dangerous to the community than imprisonment of at least 5 years, see 8 And the criminal history category, in those offenders whose crimes are U.S.C. 1231(b)(3)(B)—courts have turn, is ‘‘based on the maximum term punishable by shorter sentences. See 8 routinely concluded that crimes that are imposed in previous sentences rather U.S.C. 1158(b)(2)(A)(ii) (tying the not aggravated felonies may be than on other measures, such as ‘‘particularly serious crime’’ particularly serious. See, e.g., Valerio- whether the conviction was designated determination to ‘‘danger[ousness] to

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the community’’). In addition, by would reflect the serious social cost of sections 274(a)(1)(A) or (2) of the INA, encompassing all crimes with a such crimes. the Government must establish that the sentence of more than one year, The Departments also seek public defendant concealed, harbored, shielded regardless of whether the crimes are comment on whether (and, if so, how) from detection, or transported an alien, defined felonies by the relevant to differentiate among crimes designated or attempted to do so. INA 274(a)(1)(A), jurisdiction, the definition would create as felonies and among crimes (2), 8 U.S.C. 1324(a)(1)(A), (2). Penalties greater uniformity by accounting for punishable by more than one year of differ depending on whether the act was possible variations in how different imprisonment. For example, are there for commercial advantage or financial may label the same offense. crimes that are currently designated as gain and on whether serious bodily Such a definition would also avoid felonies in one or more relevant injury or death occurred. INA anomalies in the asylum context that jurisdictions in the United States that 274(a)(1)(B), (2)(B), 8 U.S.C. arise from the definition of ‘‘aggravated should not be categorical bars to asylum 1324(a)(1)(B), (2)(B). Most of the felonies’’ under 8 U.S.C. 1101(a)(43), eligibility? Are there crimes that are prohibited acts carry a penalty of which defines some qualifying offenses currently punishable by more than one possible imprisonment of at least five with reference to the length of the actual year’s imprisonment in one or more years, INA 274(a)(1)(B)(i)–(iii), 8 U.S.C. sentence ordered. See United States v. relevant jurisdictions in the United 1324(a)(1)(B)(i)–(iii), and committing Pacheco, 225 F.3d 148, 153–54 (2d Cir. States that should not be categorical those acts in circumstances resulting in 2000) (agreeing that ordinarily the bars to asylum? Should the definition of the death of another person can be touchstone in the aggravated felony a felony depend instead on the term of punished by a sentence of death or life definition’s reference to sentences is the imprisonment that was ordered by the imprisonment, INA 274(a)(1)(B)(iv), 8 actual term of imprisonment imposed). court of jurisdiction? In addition to U.S.C. 1324(a)(1)(B)(iv). The only The proposed definition of a felony seeking public comment on whether the exception is for certain instances of the would also obviate the need for definition of felony in the proposed rule offense of bringing or attempting to immigration adjudicators and courts to might be over-inclusive, the bring in an alien who lacks official apply the categorical approach with Departments also seek comment on authorization to enter under section respect to aggravated felonies. This whether it might be under-inclusive— 274(a)(2) of the INA, 8 U.S.C. 1324(a)(2), proposal thus would offer a more i.e., are there crimes that would not fall which carries a possible penalty of streamlined and predictable approach to under the definition of felony in the imprisonment up to one year, INA be applied in the asylum context.5 proposed rule, and that do not 274(a)(2)(A), 8 U.S.C. 274(a)(2)(A). In addition to their authority under otherwise constitute categorical bars to Convictions under section 1324 are section 208(b)(2)(B)(ii) of the INA, 8 asylum eligibility, that should be made often aggravated felonies under section U.S.C. 1158(b)(2)(B)(ii), the Attorney categorical bars? In sum, the 101(a)(43)(N) of the INA, 8 U.S.C. General and the Secretary further Departments seek input on how the 1101(a)(43)(N), which defines an propose relying on their respective proposed definition of a felony might be aggravated felony as including ‘‘an authorities under section 208(b)(2)(C) of modified. Further, the Departments seek offense described in [INA 274(a)(1)(A) the INA, 8 U.S.C. 1158(b)(2)(C), to make comment on what measures, if any, are or (2)], except in the case of a first all felony convictions disqualifying for necessary to ensure that aliens who are offense for which the alien has purposes of asylum eligibility. Federal, victims of human trafficking, but also affirmatively shown that the alien state, tribal, or local felony convictions have convictions caused by or incident committed the offense for the purpose of already carry a number of serious to victimization, are not subject to this assisting, abetting, or aiding only the repercussions over and above the bar. For instance, victims of severe alien’s spouse, child, or parent.’’ See sentence imposed. Felons, including forms of human trafficking may Matter of Ruiz-Romero, 22 I&N Dec. 486, those who are U.S. citizens, may lose nevertheless receive a waiver of 488, 492–93 (BIA 1999) (holding that an certain privileges, including the ability criminal grounds for inadmissibility in alien convicted of transporting an illegal to apply for Government grants and live order to qualify for T nonimmigrant alien committed an aggravated felony in public housing. See Estep v. United status pursuant to 8 CFR 212.16. See under section 101(a)(43)(N) of the INA States, 327 U.S. 114, 122 & n.13 (1946) INA 101(a)(15)(T), 212(d)(13)(B), 8 and was thus deportable); see also Patel (explaining that ‘‘[a] felon customarily U.S.C. 1101(a)(15)(T), 1182(d)(13)(B). v. Ashcroft, 294 F.3d 465 (3d Cir. 2002) suffers the loss of substantial rights’’); Regardless of whether the rule (holding that harboring an alien see also, e.g., Dist. of Columbia v. encompasses all felony convictions or constitutes an aggravated felony); Heller, 554 U.S. 570, 626–27 (2008) (the some subset of such convictions, the Gavilan-Cuate v. Yetter, 276 F.3d 418, Second Amendment does not prohibit Departments have identified specific 419–20 (8th Cir. 2002) (dismissing an laws disallowing the possession of types of offenses below that are appeal for lack of jurisdiction because by felons). Treating a felony proposed in this rule as grounds for the court had already determined on the conviction as disqualifying for purposes ineligibility for asylum. petitioner’s direct appeal that he had of obtaining the discretionary benefit of been convicted of the aggravated felony 2. Federal Convictions for Harboring asylum would be consistent with the of transporting and harboring aliens); Aliens disabilities arising from felony United States v. Galindo-Gallegos, 244 convictions in these other contexts and The Attorney General and the F.3d 728, 733–34 (9th Cir. 2001) Secretary propose to designate all (holding that transporting aliens under 5 The Departments intend that this proposed offenses involving the federal crimes of 8 U.S.C. 1324(a)(1)(A)(ii) is an provision would be limited to aliens with bringing in or harboring certain aliens aggravated felony for purposes of convictions and would not apply to criminal pursuant to sections 274(a)(1)(A) and (2) conduct for which the alien has not been convicted. section 101(a)(43)(N) of the INA). Aliens Further, this provision would expand ineligibility of the INA, 8 U.S.C. 1324(a)(1)(A), (2), convicted of such aggravated felonies for asylum based on offenses committed in the as particularly serious crimes and, in all would already be ineligible for asylum United States, not offenses committed abroad. This events, as discrete bases for ineligibility. under section 208(b)(2)(B)(i) of the INA. provision would thus leave unchanged the See INA 208(b)(2)(B)(ii), (C), 8 U.S.C. The proposed rule would broaden this provision in 8 U.S.C. 1101(a)(43) that provides for application of the aggravated felony definition to 1158(b)(2)(B)(ii), (C). To convict a bar so that first-time offenders who offenses in violation of the law of a foreign country. person of harboring an alien under engage in illegal smuggling or harboring

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to aid certain family members, in conviction for an [aggravated felony].’’ to two-thirds of those who are violation of section 1324(a)(1)(A) or (2), Aliens who commit such offenses are incarcerated will reoffend within a few are deemed to have committed thus already ineligible for asylum under years.’’). particularly serious crimes. The mens section 208(b)(2)(B)(i) of the INA, 8 Moreover, Congress, as noted above, rea required for a section 1324 U.S.C. 1158(b)(2)(B)(i). has already designated certain crimes conviction under subsection (a)(1)(A) is The proposed rule would broaden this related to illegal reentry as aggravated ‘‘knowing,’’ and under (a)(2) is bar so that all aliens convicted of illegal felonies. See 8 U.S.C. 1101(a)(43)(O). ‘‘knowing or in reckless disregard,’’ reentry under section 1326 would be This designation reflects a congressional meaning such a conviction displays a considered to have committed an decision that aliens who commit these serious disregard for U.S. immigration offense that disqualifies them from crimes are dangers to the community, law. In all events, conviction of a asylum eligibility. It would also see 8 U.S.C. 1158(b)(2)(A)(ii) (tying the smuggling offense under section harmonize the treatment of most aliens ‘‘particularly serious crime’’ 1324(a)(1)(A) or (2) should also be who have illegally reentered the United determination to ‘‘danger[ousness] to disqualifying under section States after being removed, as such the community’’), so aliens who commit 1158(b)(2)(C), which gives the Attorney aliens who have a prior order of removal similar crimes related to reentry are also General and the Secretary additional reinstated are already precluded from likely be dangers to the community. discretion to identify grounds for asylum eligibility. Section 1326 makes Further, 63% of those convicted of ineligibility. Even first-time alien clear that all offenses relating to illegal illegal reentry had a prior criminal history, again suggesting that the smuggling offenses involving immediate reentry are quite serious; even the most offenders who commit these crimes family members display a serious basic illegal reentry offense is pose an ongoing danger to others. See disregard for U.S. immigration law and punishable by fine and by up to two U.S. Sentencing Comm’n, Quick Facts: pose a potential hazard to smuggled years’ imprisonment. 8 U.S.C. 1326(a). Illegal Reentry Offenses 1 (2019), family members, which often include a Illegal reentry also reflects a willingness https://www.ussc.gov/sites/default/files/ vulnerable child or spouse. See Arizona to repeatedly disregard the immigration pdf/research-and-publications/quick- v. United States, 567 U.S. 387, 396 laws despite alternative means of facts/Illegal_Reentry_FY18.pdf. (noting the ‘‘danger’’ posed by ‘‘alien presenting a claim of persecution. An smugglers or aliens who commit a As a separate basis for this aspect of alien seeking protection, even one who serious crime’’); United States v. Miguel, the proposed rule, the Attorney General has previously been removed from the 368 F.3d 1150, 1157 (9th Cir. 2004), and the Secretary propose making United States, may present himself or overruled on other grounds by United illegal reentry a ground for ineligibility herself at a port of entry without States v. Gasca-Ruiz, 852 F.3d 1167 (9th under section 208(b)(2)(C) of the INA, 8 illegally reentering the United States. Cir. 2017) (noting that ‘‘young children U.S.C. 1158(b)(2)(C). A regulation An alien who chooses instead to again [are] more susceptible to the criminal providing for the mandatory ineligibility enter illegally has repeatedly chosen to conduct because they [do] not fully for asylum based on convictions for flout immigration laws, and such appreciate the danger involved in illegal illegal reentry of removed aliens, see recidivism suggests that the offense smuggling’’). INA 276, 8 U.S.C. 1326, would bear a should be treated more severely. The close relationship to the statutory bar on 3. Federal Convictions for Illegal fact that the alien has repeatedly applying for asylum when a previous Reentry engaged in criminal conduct suggests a order of removal is reinstated, see INA The Attorney General and the tendency to engage in such conduct in 241(a)(5), 8 U.S.C. 1231(a)(5). An alien Secretary further propose to exercise the future, thus warranting a conclusion subject to reinstatement of a prior their authority under sections that the alien poses a danger to the removal order is not eligible to apply for 208(b)(2)(B)(ii) and 208(b)(2)(C) of the community that makes the alien’s crime any relief from removal, but may seek INA, 8 U.S.C. 1158(b)(2)(B)(ii) and (C), particularly serious. See Mariel Alper et protection such as statutory withholding to designate a conviction for the federal al., 2018 Update on Prisoner of removal and protection pursuant to crime of illegal reentry pursuant to Recidivism: A 9-Year Follow-up Period the CAT regulations. See, e.g., Cazun, section 276 of the INA, 8 U.S.C. 1326, (2005–2014) 17 (2018) (‘‘Overall, 856 F.3d at 254. The statutory bar on as precluding asylum eligibility. excluding and applying for asylum and other forms of Under section 1326(a), aliens who violations, 82.4% of prisoners released relief when an order of removal is were previously removed and reenter in 30 states in 2005 were arrested within reinstated has been upheld by every the United States are subject to fines 9 years.’’); U.S. Sentencing Comm’n, circuit to consider the question. See and to a term of imprisonment of two The Past Predicts the Future: Criminal Garcia v. Sessions, 873 F.3d 553, 557 years or less. 8 U.S.C. 1326(a). Section History and Recidivism of Federal (7th Cir. 2017), cert. denied, 138 S. Ct. 1326(b) prescribes significantly higher Offenders 14 (2017) (‘‘Overall, an 2648 (2018); R–S–C, 869 F.3d at 1189; penalties for certain removed aliens offender’s total criminal history score is Mejia, 866 F.3d at 587; Garcia, 856 F.3d who reenter, such as aliens who were a strong predictor of recidivism. at 30; Cazun, 856 F.3d at 260; Perez- removed after being convicted for Rearrest rates range from a low of 30.2 Guzman v. Lynch, 835 F.3d 1066, 1082 aggravated felonies and then reenter. 8 percent of offenders with zero criminal (9th Cir. 2016); Jimenez-Morales v. U.S. U.S.C. 1326(b) (authorizing sentences of history points to a high of 85.7 percent Att’y Gen., 821 F.3d 1307, 1310 (11th imprisonment up to 20 years as possible for offenders with 15 or more criminal Cir. 2016); Ramirez-Mejia v. Lynch, 794 penalties). history points. Each additional criminal F.3d 485, 489–90 (5th Cir. 2015); Some convictions under section 1326 history point is generally associated Herrera-Molina v. Holder, 597 F.3d 128, already qualify as aggravated felonies with a greater likelihood of 137–38 (2d Cir. 2010). That bar reflects under section 101(a)(43)(O) of the INA, recidivism.’’); Nick Tilley, Analyzing legislators’ apparent concerns that 8 U.S.C. 1101(a)(43)(O), which defines and Responding to Repeat Offending 11 aliens who re-cross the border illegally an aggravated felony as including ‘‘an (2013) (‘‘Once criminal careers are after having been removed once should offense described in section . . . 1326 established and offenders are processed not be rewarded with benefits that the . . . committed by an alien who was by the criminal justice system, United States is not obliged to offer previously deported on the basis of a recidivism rates become very high: Up them. See R–S–C, 869 F.3d at 1179 &

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n.2; H.R. Rep. No. 104–469, pt. 1, at 155 statutory withholding of removal, INA discretionary authority under sections (1996) (‘‘[T]he ability to cross into the 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A), or 208(b)(2)(B)(ii) and (C) of the INA, 8 United States over and over with no protection under the regulations U.S.C. 1158(b)(2)(B)(ii) and (C), to consequences undermines the implementing the CAT, 8 CFR exclude individuals convicted of credibility of our efforts to secure the 1208.16(c) through 1208.18, the rule federal, state, tribal, or local crimes border.’’); H.R. Rep. No. 104–469, pt. 1, does not affect U.S. compliance with its committed in support, promotion, or 113 (‘‘One seemingly intractable obligations under Article 33(1) of the furtherance of a criminal street gang as problem is repeat border-crossings.’’). Refugee Convention or Article 3 of the that term is defined in the convicting The existing statutory bar for CAT. See R–S–C, 869 F.3d at 1188 n.11; jurisdiction or under 18 U.S.C. 521(a). reinstated removal orders and the Cazun, 856 F.3d at 257; Ramirez-Mejia, Specifically, the proposed rule would proposed bar for aliens convicted of 813 F.3d at 241. cover individuals convicted of federal, illegal reentry after being previously Moreover, in rejecting any argument state, tribal, or local crimes in cases in removed are not coterminous because that the Refugee Convention and which the adjudicator knows or has not all persons with a conviction under Refugee Protocol require that the U.S. reason to believe the crime was section 276 of the INA, 8 U.S.C. 1326, must grant asylum to anyone who committed in furtherance of criminal have orders of removal reinstated. See qualifies as a ‘‘refugee,’’ the street gang activity.6 The ‘‘reason to Lara-Aguilar v. Sessions, 889 F.3d 134, Departments note that the Refugee believe’’ standard is used elsewhere in 144 (4th Cir. 2018) (reinstatement of a Convention and Refugee Protocol are the INA, see 8 U.S.C. 1182(a)(2)(C), and prior removal order is neither automatic not self-executing. Rather, Congress would allow for consideration of all nor obligatory). Furthermore, not all implemented relevant U.S. obligations reliable evidence, including any penalty persons with reinstated removal orders under the Refugee Protocol through the enhancements, to determine whether have been convicted under section 276 Refugee Act. Matter of D–J–, 23 I&N Dec. the crime was committed for or related of the INA, 8 U.S.C 1326. However, the 572, 584 n.8 (A.G. 2003). The Refugee to criminal gang activities, see Garces v. Departments believe that similar policy Act made asylum discretionary, U.S. Att’y Gen., 611 F.3d 1337, 1350 considerations support the barring of meaning that Congress did not consider (11th Cir. 2010); Matter of Rico, 16 I&N aliens convicted of illegal reentry under it obligatory to grant asylum to every Dec. 181, 185–86 (BIA 1977). In section 276 of the INA, 8 U.S.C. 1326, refugee who qualifies. Public Law 96– addition, the Departments have from eligibility for asylum. 212, sec. 208(a), 94 Stat. 102. Moreover, concluded that it is appropriate to allow Furthermore, although this proposed as noted earlier in footnote 3, courts the adjudicator to determine whether a bar would render ineligible for asylum have rejected arguments that other crime was in fact committed ‘‘in an alien whose threat of persecution provisions of the Refugee Convention furtherance’’ of gang-related activity. arose after the initial removal and illegal require every refugee to receive asylum. The states, as noted above, have enacted reentry, such an alien could still seek Courts have held, in the context of numerous laws that address gang- other forms of protection, such as upholding the bar on eligibility for related crimes, but they have not statutory withholding of removal and asylum in reinstatement proceedings enacted a uniform definition of what withholding or deferral of removal under section 241(a)(5) of the INA, 8 constitutes activity taken ‘‘in under the regulations implementing the U.S.C. 1231(a)(5), that limiting the furtherance’’ of a gang-related crime. It CAT. The proposed rule is consistent, ability to apply for asylum does not thus appropriately falls to immigration therefore, with U.S. treaty obligations constitute a prohibited ‘‘penalty’’ under judges in the first instance to determine under the Refugee Protocol (which Article 31(1) of the Refugee Convention. whether a person committed the type of incorporates Articles 2 through 34 of the Mejia, 866 F.3d at 588; Cazun, 856 F.3d crime that warrants withholding of the Refugee Convention) and the CAT. U.S. at 257 n.16. Courts have also rejected benefit of legal presence in our asylum law implements Article 34 of the argument that Article 28 of the communities. Moreover, to the extent the Refugee Convention, concerning Refugee Convention, governing issuance that allowing the adjudicator to assimilation of refugees, which is of international travel documents for undertake such an inquiry might raise precatory and not mandatory. See refugees ‘‘lawfully staying’’ in a concerns about inconsistent application Cardoza-Fonseca, 480 U.S. at 441. In country’s territory, mandates that every of the proposed bar, the Departments accordance with the non-mandatory person who might qualify for note that the Board is capable of nature of Article 34, the asylum statute, withholding must also be granted INA 208, 8 U.S.C. 1158, was drawn to asylum. Garcia, 856 F.3d at 42; R–S–C, 6 California enacted the first major anti-gang be discretionary; it does not require 869 F.3d at 1188. Thus, the Attorney legislation in the country in 1988. See Cal. Penal. asylum to be granted to all refugees. Id. Code 186.22(a) (establishing a substantive criminal General may render aliens ineligible for offense for ‘‘[a]ny person who actively participates For the reasons outlined above, asylum if they enter illegally and are in any criminal street gang with knowledge that its limitations like the ones proposed here then convicted of unlawfully entering members engage in, or have engaged in, a pattern do not violate Article 34. See Garcia, the country, and still remain faithful to of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious 856 F.3d at 42; R–S–C, 869 F.3d at 1188; U.S. obligations under the Refugee criminal conduct by members of that gang’’). In the Mejia, 866 F.3d at 588; Cazun , 856 F.3d Protocol. years since, 49 states, the District of Columbia, and at 257 & n.16; Ramirez-Mejia, 813 F.3d the Federal Government have enacted legislation at 241. In contrast, the United States’ 4. Federal, State, Tribal, or Local that provides for penalties (including sentence non-refoulement obligations under Convictions for Offenses Involving enhancements, fines, or damages) for gang-related Criminal Street Gangs criminal activity. National Gang Center, Highlights Article 33(1) of the Refugee Convention of Gang-Related Legislation (Dec. 31, 2018), https:// and Article 3 of the CAT are mandatory The Departments are proposing to bar www.nationalgangcenter.gov/Legislation/Highlights to the extent provided by domestic law. from asylum all those who are convicted (last visited June 3, 2019); see also, e.g., 18 U.S.C. 521 (providing a 10-year sentence enhancement for They are implemented by statutory of a crime involving criminal street certain convictions regarding criminal street gang withholding of removal, a mandatory gangs, regardless of whether that crime activity); Idaho Code Ann. 18–8503; Iowa Code provision, and withholding or deferral qualifies as a felony or as a Ann. 723A.2; Kan. Stat. Ann. 21–6314; La. Rev. of removal under the CAT regulations. misdemeanor. One approach the Stat. 1403; Minn. Stat. Ann. 609.229; Mo. Rev. Stat. 578.423; Mont. Code Ann. 45–8–405; N.C. Gen. Because the new limitations adopted Attorney General and the Secretary are Stat. 14–50.17; Ohio Rev. Code Ann. 2923.42; Tenn. here do not affect the availability of considering is to exercise their Code Ann. 40–35–121; Utah Code Ann. 76–9–903.

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ensuring a uniform approach to the aliens who enter the United States and Trafficking, 82 FR 10691 (Feb. 9, 2017), gang-related crimes inquiry. See, e.g., 8 proceed to be convicted of crimes the President emphasized the scourge of CFR 1003.1(e)(6)(i) (allowing for referral involving criminal street gang-related transnational criminal organizations and of cases to a three-member panel of the activity should be deemed to have directed federal agencies to ‘‘pursue and Board ‘‘to settle inconsistencies among committed particularly serious crimes support additional efforts to prevent the the rulings of different immigration that render them ineligible for asylum. operational success of transnational judges’’). Further, some of the crimes in which criminal organizations and subsidiary Some of the relevant criminal street gangs frequently engage—such as drug organizations within and beyond the gang-related offenses may already trafficking—are similar to the kinds of United States.’’ Aliens involved in gang- constitute aggravated felonies, such that crimes that Congress has already related criminal activity accordingly aliens convicted of such offenses would classified as aggravated felonies. See, represent a threat to the safety and already be ineligible for asylum. The e.g., 8 U.S.C. 1101(a)(43)(B) (defining security of the United States, and most common criminal street gang aggravated felonies to include ‘‘illicit barring aliens convicted of such activity crimes ‘‘are street-level drug trafficking, trafficking in a controlled substance’’). from receiving the discretionary benefit , threats and , This classification reflects a of asylum is ‘‘consistent with’’ the robbery, and large-scale drug congressional determination that such asylum statute’s current provisions trafficking.’’ National Gang Intelligence crimes pose a danger to the community, specifying that aliens posing such a Center, 2015 National Gang Report 12 see 8 U.S.C. 1158(b)(2)(A)(ii), threat are not eligible for asylum. See 8 (2015). Many convictions for such (b)(2)(B)(i), such that aliens involved in U.S.C. 1158(b)(2)(A)(ii), (iv). offenses could qualify as aggravated similar, gang-related crimes are also Finally, the Departments solicit felonies. See, e.g., 8 U.S.C. likely to pose a danger to the public comments on: 1101(a)(43)(B) (defining drug trafficking community. Indeed, the perpetrators of (1) What should be considered a crimes as aggravated felonies); id. crimes that further gang activity are, by sufficient link between an alien’s 1101(a)(43)(F) (defining crimes of the very nature of the acts they commit, underlying conviction and the gang- violence punishable by at least one year displaying a disregard for basic societal related activity in order to trigger the in prison as aggravated felonies). structures in preference of criminal application of the proposed bar; and Regardless, criminal street gang- activities that place other members of (2) any other regulatory approaches to related offenses—whether felonies or the community—even other gang defining the type of gang-related misdemeanors—could reasonably be members—in danger. Existing law in activities that should render aliens designated as ‘‘particularly serious some cases thus already treats gang- ineligible for asylum. crimes’’ pursuant to 8 U.S.C. related offenders more harshly than 5. Convictions for Offenses Involving 1158(b)(2)(B)(ii). All criminal street other offenders, see, e.g., U.S. Driving While Intoxicated or Impaired gang-related offenses appear to be Sentencing Guidelines Manual § 5K2.18 particularly serious because they are (U.S. Sentencing Comm’n 2018) The Attorney General and Secretary strong indicators of recidivism and (allowing for upward departures ‘‘to further propose that, pursuant to their ongoing, organized criminality within a enhance the sentences of defendants authorities under 8 U.S.C. community, thus implying that aliens who participate in groups, clubs, 1158(b)(2)(B)(ii) and (C), aliens who commit such crimes are likely to organizations, or associations that use convicted under federal, state, tribal, or pose an ongoing danger to that violence to further their ends’’), thereby local law of certain offenses involving community. For example, research confirming that these offenders are more driving while intoxicated or impaired suggests that criminal street gang likely to be dangerous to the (also known as driving under the members are responsible for 48 percent community. influence (‘‘DUI’’)) should be ineligible of in most U.S. Moreover, even if 8 U.S.C. for asylum. Specifically, aliens should jurisdictions. See National Gang 1158(b)(2)(B)(ii) did not authorize the be ineligible for asylum if they are Intelligence Center, National Gang proposed bar, the Attorney General and convicted under federal, state, tribal, or Threat Assessment 15 (2011). Criminal the Secretary would propose local law of a second or subsequent street gang members are also more likely designating criminal gang-related offense of driving while intoxicated or than nonmembers to be involved in offenses as disqualifying under 8 U.S.C. impaired, or for a single such offense selling drugs. See Dana Peterson, et al., 1158(b)(2)(C). Criminal gangs of all resulting in death or serious bodily Gang Membership and Violent types—including local, regional, or injury. Whether a conviction involves Victimization 21 Just. Q. 793, 798 national street gangs; outlaw motorcycle driving while intoxicated or impaired (2004). And the Federal Bureau of gangs; and prison gangs—are a would depend on the definition that the Investigation reports that more than 96 significant threat to the security and jurisdiction of conviction gives those criminal street gangs conduct cross- safety of the American public. See, e.g., terms. Such convictions would be border crimes such as cross-border drug National Gang Intelligence Center, 2015 disqualifying regardless of whether they trafficking. National Gang Intelligence National Gang Report 8 (2015) constituted felonies or misdemeanors in Center, 2015 National Gang Report 9–10 (explaining that ‘‘each gang type poses the jurisdiction of conviction. (2015); see also J.C. Barnes et al., a unique threat to the nation’’). An alien convicted of DUI may Estimating the Effect of Gang Transnational organized crime has also remain eligible for asylum under current Membership on Nonviolent and Violent expanded in size, scope, and impact law, even when it is an alien’s second or subsequent such conviction or when Delinquency: A Counterfactual over the past several years.7 In the DUI offense results in death or Analysis, 36 Aggressive Behav. 437, 438 Executive Order 13773, Enforcing serious injury. Not all DUI offenses (2010) (studying the link between gang Federal Law With Respect to constitute aggravated felonies within the membership and crime, and reporting Transnational Criminal Organizations meaning of section 101(a)(43) of the that gang members account for 86 and Preventing International percent of all ‘‘serious delinquent acts’’). INA, 8 U.S.C. 1101(a)(43), and thus In light of this well-documented link 7 Office of the Dir. Of Nat’l Intelligence, these offenses may not automatically between gang membership and a range Transnational Organized Crime, https:// constitute ‘‘particularly serious crimes’’ of crimes, the Departments believe that www.dni.gov/files/documents/NIC_toc_foldout.pdf. for purposes of 8 U.S.C. 1158(b)(2)(B)(i).

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Cf. Leocal v. Ashcroft, 543 U.S. 1, 13 of the United States). The Fifth Circuit basing his discretionary denial of (2004) (noting that DUI offenses in states has noted that ‘‘the very nature of the asylum on [the petitioner’s] three drunk- whose relevant statutes ‘‘do not require crime of [driving while intoxicated] driving convictions’’). These cases are any mental state’’ are not aggravated presents a ‘serious risk of physical consistent with the notion that the felony crimes of violence). However, the injury’ to others.’’ United States v. Attorney General and Secretary could, Board in the withholding of removal DeSantiago-Gonzalez, 207 F.3d 261, 264 in their discretion, identify a subset of context has concluded that a number of (5th Cir. 2000). These decisions in the DUI convictions reflecting particularly DUI-related offenses involving death or withholding context underscore that dangerous conduct as grounds to deny serious injury constitute particularly DUI offenses involving serious bodily eligibility for asylum. serious crimes, and courts have upheld harm or death are routinely deemed 6. Domestic Assault or Battery, Stalking, those determinations. See, e.g., ‘‘particularly serious crimes’’ in that or Child Abuse Avendano-Hernandez v. Lynch, 800 context, and section 101(h)(3) of the F.3d 1072, 1076, 1076–78 (9th Cir. 2015) INA, 8 U.S.C. 1101(h)(3), classifies Relying on the authority under (affirming the Board’s determination driving under the influence as a section 208(b)(2)(B)(ii) of the INA, the that a felony DUI conviction involving ‘‘serious criminal offense’’ for purposes proposed regulation would also render injury to another was a particularly of the ground of inadmissibility at aliens convicted of federal, state, tribal, serious crime for purposes of section 1182(a)(2)(E). Classifying DUI or local offenses involving conduct withholding of removal given the offenses that involve serious bodily amounting to domestic assault or inherently dangerous nature of the harm or death as particularly serious battery, stalking, or child abuse in the offense, even though the alien was crimes as a categorical matter would be domestic context ineligible for asylum, sentenced to less than one year’s reasonable given that all such offenses irrespective of whether those offenses imprisonment); Anaya-Ortiz v. Holder, by definition involve a serious danger to qualify as felonies or misdemeanors. 594 F.3d 673, 675, 679–80 (9th Cir. the community. Likewise, categorically Relying solely on the Attorney General 2010) (the Board applied the correct classifying repeat DUI offenses as and the Secretary’s authority under standard to conclude that an alien’s particularly serious crimes would be a section 208(b)(2)(C) of the INA, the actions in crashing ‘‘into a house while reasonable exercise of the Attorney regulation would also render ineligible driving drunk . . . [and] caus[ing] part General and the Secretary’s discretion to aliens who engaged in acts of battery and extreme cruelty in a domestic of the house’s sheetrock wall to collapse designate particularly serious crimes context in the United States, regardless on an elderly woman who lived inside’’ because repeat offenders have already of whether such conduct resulted in a constituted a particularly serious crime); exhibited disregard for the safety of criminal conviction. Notably, the Ursu v. INS, 20 F. App’x 702, 705 (9th others as well as a likelihood of asylum statute already contemplates Cir. 2001) (upholding the Board’s continuing to engage in extremely that individuals who engage in certain conclusion that a specific DUI offense dangerous conduct. harmful behavior will be ineligible, was a particularly serious crime for Even if some of the proposed DUI- regardless of whether that behavior withholding purposes because the alien related bars could not be characterized resulted in a conviction. 8 U.S.C. ‘‘caused the death of another human as ‘‘particularly serious crimes’’ for 1158(b)(2)(A)(i), (iii)–(v). Finally, the being’’ while severely impaired). These purposes of section 1158(b)(2)(B)(ii), proposed regulation would except from holdings indicate that DUI offenses such bars would be within the Attorney the ineligibility bar aliens who have often have grave consequences, thus General and the Secretary’s authority to been battered or subjected to extreme supporting a conclusion that they can establish under 8 U.S.C. 1158(b)(2)(C). cruelty and who were not the primary reasonably be considered ‘‘particularly As the Supreme Court has recognized, perpetrators of violence in their serious’’ for purposes of asylum ‘‘[d]runk driving is an extremely relationships. eligibility. DUI laws exist, in part, to dangerous crime’’ as a general matter. Some of the offenses described above protect unknowing persons who are Begay v. United States, 553 U.S. 137, may already render an alien ineligible transiting through their communities 141 (2008), abrogated on other grounds for asylum, to the extent that a from the dangerous persons who choose by Johnson v. United States, 135 S. Ct. particular conviction qualifies as an to willingly disregard common 2551 (2015). It takes ‘‘a grisly toll on the aggravated felony. For instance, knowledge that their criminal acts Nation’s roads, claiming thousands of aggravated felonies encompass ‘‘, endanger others. lives, injuring many more victims, and rape, or sexual abuse of a minor,’’ 8 As noted above, however, existing law inflicting billions of dollars in U.S.C. 1101(a)(43)(A), as well as any does not clearly or categorically limit damage every year.’’ Birchfield v. North ‘‘crime of violence . . . for which the asylum eligibility for aliens convicted of Dakota, 136 S. Ct. 2160, 2166 (2016); see term of imprisonment [is] at least one serious DUI offenses, including those also Marmolejo-Campos v. Holder, 558 year,’’ id. 1101(a)(43)(F). Convictions for resulting in death or serious bodily F.3d 903, 913 (9th Cir. 2009) (noting such offenses automatically constitute injury. Establishing such a bar would be that ‘‘the dangers of drunk driving are ‘‘particularly serious crimes’’ for consistent with the Attorney General well established’’). Furthermore, federal purposes of 8 U.S.C. 1158(b)(2)(A)(ii). and the Secretary’s statutory authority courts have upheld the Board’s See 8 U.S.C. 1158(b)(2)(B)(i). But, as to designate by regulation ‘‘particularly determination that even if a particular noted, due to the application of the serious crimes’’ that constitute a danger DUI-related offense does not qualify as categorical approach, many state to the community and, thus, render a ‘‘particularly serious crime,’’ such a convictions that involve sexual abuse or aliens ineligible for asylum. INA conviction warrants a discretionary domestic violence-related offenses may 208(b)(2)(A)(ii), (B)(ii), 8 U.S.C. denial of asylum. See, e.g., Kouljinski v. not qualify as aggravated felonies. E.g., 1158(b)(2)(A)(ii), (B)(ii); Delgado, 648 Keisler, 505 F.3d 534, 543 (6th Cir. Larios-Reyes, 843 F.3d at 149–50 (alien’s F.3d at 1105–06; Gao, 595 F.3d at 555– 2007) (holding that, regardless of conviction under Maryland law for 56; see also Matter of Carballe, 19 I&N whether driving under the influence of sexual abuse of a victim under the age Dec. 357, 360 (BIA 1986) (an alien alcohol is a ‘‘particularly serious of 14 did not amount to the aggravated convicted of a particularly serious crime crime,’’ the immigration judge ‘‘did not felony of ‘‘sexual abuse of a minor’’); constitutes a danger to the community abuse his discretion in this case by Ortega-Mendez v. Gonzales, 450 F.3d

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1010, 1021 (9th Cir. 2006) (holding that for such offenses—as well as engaging Boente, 847 F.3d 869, 872 (7th Cir. a conviction for battery under California in conduct involving domestic violence 2017) (‘‘The text of [8 U.S.C. Penal Code section 242 is not a ‘‘crime that does not result in a conviction— 1227(a)(2)](E)(ii) does not depend on a of violence’’ within the meaning of 18 should be a basis for ineligibility for criminal conviction but on what a court U.S.C. 16(a) and thus is not a ‘‘crime of asylum under section 208(b)(2)(C) of the ‘determines’ about the alien’s domestic violence’’ within the meaning INA. Domestic violence is particularly conduct.’’). That ground of removability of 8 U.S.C. 1227(a)(2)(E)(i)); Tokatly v. reprehensible because the perpetrator requires the immigration judge to Ashcroft, 371 F.3d 613, 624 (9th Cir. takes advantage of an ‘‘especially consider ‘‘the probative and reliable 2004) (‘‘Applying Taylor, a court may vulnerable’’ victim. Carrillo v. Holder, evidence regarding what a State court not look beyond the record of 781 F.3d 1155, 1159 (9th Cir. 2015). has determined about the alien’s conviction to determine whether an Congress enacted grounds for violation [of a protective order].’’ Matter alien’s crime was one of ‘violence,’ or removability for domestic violence of Medina-Jimenez, 27 I&N Dec. 399, whether the violence was ‘domestic’ offenses because ‘‘[w]hen someone is an 401 (BIA 2018). And, under 8 U.S.C. within the meaning of the provision.’’). alien and has already shown a 1227(a)(2)(E)(i), which requires a The Board has routinely deemed some predisposition toward violence against of the identified domestic violence conviction, the immigration judge may women and children, we should get rid still apply a circumstance-specific offenses as particularly serious crimes, of them the first time.’’ See 142 Cong. approach to determine whether the and many of those decisions have been Rec. S4058–02, S4059 (daily ed. Apr. ‘‘domestic relationship component’’ of upheld on appeal. See Pervez v. Holder, 24, 1996) (statement of Senator Dole on that removability ground is met. 546 F. App’x 157, 159 (4th Cir. 2013) his amendment adding grounds for (attempted indecent liberties with a removability under subsection (E) to 8 Hernandez-Zavala v. Lynch, 806 F.3d child constituted a particularly serious U.S.C. 1227(a)(2)). Congress included 259, 266–67 (4th Cir. 2015); Matter of crime even where ‘‘no child was stalking within the same statutory Estrada, 26 I&N Dec. 749, 752–53 (BIA actually harmed’’); Lara-Perez v. Holder, provision as domestic violence offenses 2016) (‘‘[T]he circumstance-specific 517 F. App’x 255 (5th Cir. 2013) (lewd that make an alien subject to removal approach is properly applied in and lascivious acts with a child because it is a ‘‘vicious act:’’ ‘‘Of all the analyzing the domestic nature of a constituted particularly serious crime); women killed in the United States by conviction to determine if it is for a Uzoka v. Att’y Gen., 489 F. App’x 595 husbands or boyfriends, 90 percent were crime of domestic violence.’’). Because (3d Cir. 2012) (endangering welfare of a stalked before being murdered.’’ Id. In some states may not have separate child constituted a particularly serious addition, ‘‘[s]talking behavior often offenses for the different types of crime); Sosa v. Holder, 457 F. App’x 691 leads to violence which may result in conduct recognized in federal law as (9th Cir. 2011) (willful infliction of the serious injury or death of stalking domestic violence offenses, relying on corporal injury on a spouse or victims.’’ Id. Congress also included such a factual inquiry would ‘‘clos[e] cohabitant constituted a particularly child abuse within the same statutory the . . . loopholes’’ where aliens might serious crime); Hernandez-Vasquez v. provision as domestic violence offenses, otherwise escape the immigration Holder, 430 F. App’x 448 (6th Cir. 2011) noting that child abuse includes a range consequences due to the vagaries of (child endangerment constituted a of serious maltreatment, such as states’ laws. 142 Cong. Rec. S4058–02, particularly serious crime); Matter of negligence, physical abuse, sexual Singh, 25 I&N Dec. 670, 670 (BIA 2012) S4059 (statement of Senator Dole). abuse, emotional abuse, and medical (stalking offense constituted a crime of For similar reasons, the portions of violence). But the Board’s case-by-case negligence. See id. (statement of Senator the proposed rule at 8 CFR assessment of each domestic violence Coverdale). ‘‘[American] society will not 208.13(c)(6)(vii) and 1208.13(c)(6)(vii), conviction does not cover all of the tolerate crimes against women and which would not require a conviction to offenses identified above, and it would children.’’ Id. (statement of Senator Dole trigger ineligibility, allow the not cover domestic violence that does on his amendment to add subsection (E) adjudicator to consider what conduct not result in a conviction, as the to 8 U.S.C. 1227(a)(2)). The same the alien engaged in to determine if the proposed rule would. rationale should render aliens who conduct amounts to a covered act of The Attorney General and the commit domestic violence in the United battery or extreme cruelty. There is States ineligible for the discretionary Secretary propose classifying domestic for such a conduct-specific benefit of asylum. Denying asylum violence convictions as particularly inquiry in the asylum statute, see INA eligibility to an alien who has engaged serious crimes under section 208(b)(2)(A)(i), 8 U.S.C. 1158(b)(2)(A)(i), in domestic violence accords with the 208(b)(2)(B)(ii) of the INA, 8 U.S.C. as well as in the removability context, aim of ‘‘send[ing] a message that we will 1158(b)(2)(B)(ii), because violent see INA 237(a)(1)(E), 8 U.S.C. protect our citizens against [domestic] conduct, or conduct creating a 1227(a)(1)(E); see also Meng v. Holder, substantial risk of violence against the ’’ committed by aliens. Id. The portions of the proposed 770 F.3d 1071, 1076 (2d Cir. 2014) person, generally constitutes a (reviewing the record evidence to particularly serious offense rendering an regulation that require a conviction determine whether it supported the alien ineligible for asylum or would permit the adjudicator to assess agency’s finding that the applicant’s withholding of removal. Matter of all reliable evidence in order to conduct triggered section E–A–, 26 I&N Dec. 1, 9 n.3 (BIA 2012) determine whether that conviction (a ‘‘serious’’ crime involves ‘‘a amounts to a domestic violence offense. 1158(b)(2)(A)(i)’s persecutor bar); substantial risk of violence and harm to In limited circumstances, a similar type Santiago-Rodriguez v. Holder, 657 F.3d persons’’); Matter of Frentescu, 18 I&N of analysis already occurs in the 820, 829 (9th Cir. 2011) (explaining that Dec. 244, 247 (BIA 1982) (‘‘Crimes removal context. Although the ground a factual admission may be sufficient to against persons are more likely to be of removability at 8 U.S.C. satisfy the Government’s burden of categorized as ‘particularly serious 1227(a)(2)(E)(ii)—which applies to demonstrating removability under crimes.’ ’’). individuals who violate certain portions section 1227(a)(1)(E)(i)). Moreover, this Even if all of the proposed domestic of a protective order—does not require conduct-specific inquiry is materially violence offenses would not qualify as a criminal conviction, it does require a similar to the inquiry already particularly serious crimes, convictions judicial order. See Garcia-Hernandez v. undertaken in situations in which an

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alien seeks to obtain immigration regulation would define a misdemeanor the verification of identity’’ for the benefits based on domestic violence in this context as a crime defined as a purpose of issuing Government actions that do not necessarily result in misdemeanor by the jurisdiction of identification documents). a conviction. See, e.g., 8 U.S.C. conviction, or that involves a potential The use of fraudulent documents, 1229b(b)(2)(A); 8 CFR 204.2(c)(1)(i)(E), penalty of one year or less in prison. especially involving the appropriation (c)(1)(vi), (c)(2)(iv), (e)(1)(i)(E), (e)(1)(vi), Convictions for such misdemeanor of someone else’s identity, so strongly and (e)(2)(iv). offenses should be disqualifying undermines government integrity that it Finally, the proposed regulation because these offenses inherently would be inappropriate to allow an would exempt from the ineligibility bar undermine public safety or Government individual convicted of such an offense aliens who have been battered or integrity. subjected to extreme cruelty and who The Departments also seek public to obtain the discretionary benefit of were not the primary perpetrators of comment on whether (and, if so, how) asylum. violence in their relationships. These to differentiate among misdemeanor Despite the concerns articulated aliens are generally described in section convictions that should warrant above, the proposed rule would provide 237(a)(7)(A) of the INA, 8 U.S.C. designation as grounds for ineligibility an exception for the bar to asylum based 1227(a)(7)(A), which provides a waiver for asylum. Are there any additional on convictions for use or misuse of of the domestic violence and stalking misdemeanor convictions that should be identification documents if the alien can removability ground when it is bars to asylum eligibility? Conversely, show that the document was presented determined that the alien (1) was acting should any of the below proposed before boarding a common carrier for in self-defense; (2) was found to have misdemeanor bars be eliminated? the purpose of coming to the United violated a protection order intended to a. Fraudulent Document Offenses States, that the document relates to the protect the alien; or (3) committed, was alien’s eligibility to enter the United arrested for, was convicted of, or pled The Departments propose to make States, that the alien used the document guilty to committing a crime that did aliens ineligible for asylum when they to depart a country in which the alien not result in serious bodily injury and are convicted of a federal, state, tribal, has claimed a fear of persecution, and where there was a connection between or local misdemeanor for the possession that the alien claimed a fear of the crime and the alien’s having been or use, without lawful authority, of an persecution without delay upon battered or subjected to extreme cruelty. identification document, authentication presenting himself or herself to an Although section 237(a)(7)(A) of the feature, or false identification document immigration officer upon arrival at a INA, 8 U.S.C. 1227(a)(7)(A), excepts as defined in 18 U.S.C. 1028(d). Aliens United States port of entry. This such aliens from removability only if convicted of falsifying passports or exception is consistent with distinctions they are granted a discretionary waiver, other identity documents where the regarding certain document-related term of imprisonment is at least a year the proposed rule would except all offenses made in Matter of Pula, 19 I&N are already ineligible for asylum (unless aliens who satisfy the above criteria Dec. at 474–75, existing statutes, see the conduct was a first-time offense for from the proposed asylum bar. Asylum INA 274C(a)(6) and (d)(7), 8 U.S.C. purposes of aiding a specified family officers or immigration judges could 1324c(a)(6) and (d)(7), and existing member) because such conduct thus make factual determinations regulations, see 8 CFR 270.2(j) and constitutes an aggravated felony under 8 regarding whether an alien fit into this 1270.2(j); see also Matter of Kasinga, 21 U.S.C. 1101(a)(43)(P). Other felonies category, making the exception more I&N Dec. 357, 368 (BIA 1996) (use of relating to fraudulent document offenses administrable and uniform in the fraudulent passport to come to the would be encompassed within the asylum context. The Departments United States was not a significant believe that this exception would proposed eligibility bar for felony convictions. adverse factor where, upon arrival, provide important protections for applicant told the immigration inspector domestic violence victims. The Attorney General and the Secretary believe that fraudulent the truth). Other than this exception, 7. Convictions for Certain Misdemeanor document offenses pose such a aliens seeking to enter, remain, obtain Offenses significant affront to government employment, or obtain benefits and The proposed regulation would also integrity that even misdemeanor services who are convicted of using make certain misdemeanor offenses bars fraudulent document offenses should false or fraudulent documents should to asylum based on the authority to disqualify aliens from eligibility for not be eligible for asylum. create new grounds for ineligibility in asylum. Proper identity documentation b. Public Benefits Offenses section 208(b)(2)(C) of the INA, 8 U.S.C. is critical in the immigration context. 1158(b)(2)(C). Other provisions of the See Noriega-Perez v. United States, 179 Many aliens are legally entitled to INA render aliens ineligible for other F.3d 1166, 1173–74 (9th Cir. 1999). receive certain categories of federal benefits based on convictions for certain Furthermore, as Congress acknowledged public benefits. 8 U.S.C. 1611, 1641. misdemeanors. See, e.g., INA when it passed the REAL ID Act of The unlawful receipt of public benefits, 244(c)(2)(B)(i), 8 U.S.C. 1254a(c)(2)(B)(i) 2005, Public Law 109–13, preserving the however, burdens taxpayers and drains (barring aliens from eligibility for integrity of identity documents is a system intended to assist lawful temporary protected status if they have critical for general national security and beneficiaries. The inherently pernicious been convicted of two or more public safety reasons. The United States nature of such conduct has previously misdemeanors in the United States). has taken concrete steps to protect all led the Government to prioritize The proposed rule would designate Government-issued identification enforcement of the immigration laws offenses involving the use of fraudulent documents by making the process to against such offenders, see Enhancing documents, the receipt of public obtain identification documents more Public Safety in the Interior of the benefits under false pretenses, or the rigorous. See, e.g., H.R. Rep. No. 109– United States, Exec. Order No. 13768, possession or trafficking of drugs as 72, at 179 (2005) (Conf. Rep.) 82 FR 8799 (Jan. 25, 2017), and this disqualifying for purposes of asylum, (explaining that the REAL ID Act was pernicious conduct warrants the use of even if such offenses are misdemeanors passed in part to ‘‘correct the chronic the Attorney General and the Secretary’s rather than felonies. The proposed weakness among many of the states in authority to bar convicted individuals

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from receiving the discretionary benefit particularly serious crime for purposes of 30 grams or less of marijuana. That of asylum.8 of both asylum and withholding of exception would be consistent with an removal). Additionally, drug existing exception in the removability c. Controlled Substances Offenses paraphernalia possession can include context: One who is convicted of a Relying on the authority in section certain equipment associated with the single offense of simple possession of 208(b)(2)(C) of the INA, 8 U.S.C. use, manufacture, packaging, or sale of marijuana is not automatically 1158(b)(2)(C), the Departments propose illegal drugs. See, e.g., 21 U.S.C. 863(d). removable under the INA. See INA to make aliens ineligible for asylum Under the proposed eligibility bar for 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i). when they are convicted of a federal, felonies, all felony convictions relating An alien with the same conviction state, tribal, or local misdemeanor to controlled substances would become would be inadmissible, but has a involving controlled-substances a basis for ineligibility for asylum. statutory right to request a waiver, offenses. Specifically, the Departments The Departments further propose to which the Attorney General or the propose that a conviction for possession implement a new bar for asylum to Secretary may grant in his or her or trafficking of a controlled substance include convictions for misdemeanors discretion. See INA 212(a)(2)(A)(i)(II), or controlled-substance paraphernalia, involving the trafficking or possession (h), 8 U.S.C. 1182(a)(2)(A)(i)(II), (h); 8 other than a single offense involving of controlled substances. Both CFR 212.7(d) and 1212.7(d); see also possession for one’s own use of 30 possessors and traffickers of controlled INA 103(a), 8 U.S.C. 1103(a). grams or less of marijuana, should substances pose a direct threat to the The Departments seek public disqualify an alien from eligibility for public health and safety interests of the comment on how to differentiate among asylum. United States, and they should not be controlled substance offenses. Are there Aliens who violate controlled entitled to the benefit of asylum. The offenses that are currently designated as substance laws may be removable, see harmful effects of controlled substance a controlled substance offense in one or INA 212(a)(2)(A)(i)(II), 237(a)(2)(B)(i), 8 offenses have been recognized more relevant jurisdictions in the U.S.C. 1182(a)(2)(A)(i)(II), consistently by policymakers and United States that should not be 1227(a)(2)(B)(i), and they would already courts. ‘‘[F]ar more people die from the categorical bars to asylum eligibility? In be barred from receiving asylum to the misuse of opioids in the United States addition to seeking public comment on extent a controlled-substance offense each year than from road traffic whether this proposed definition is constitutes an aggravated felony, see accidents or violence.’’ over-inclusive, the Departments seek INA 208(b)(2)(B)(i), 8 U.S.C. Office on Drugs and Crime, World Drug comment on whether it might be under- 1158(b)(2)(B)(i); see also INA Report: Executive Summary, inclusive: Are there crimes that would 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B); Conclusions, and Policy Implications 10 not fall under this definition that should United States v. Valdivia-Flores, 876 (2017). As Attorney General Ashcroft be made categorical bars? F.3d 1201, 1206–07 (9th Cir. 2017) previously recognized in an B. Clarifying the Effect of Criminal (controlled-substances offenses are immigration opinion, ‘‘[t]he harmful Convictions aggravated felonies under the INA if effect to society from drug offenses has they meet the definition of trafficking or consistently been recognized by The proposed regulations governing involve state analogues to federal Congress in the clear distinctions and ineligibility for asylum would also set trafficking offenses). Furthermore, in disparate statutory treatment it has forth criteria for determining whether a cases that the courts of appeals have drawn between drug offenses and other vacated, expunged, or modified often upheld, the Board has concluded crimes.’’ Matter of Y–L-, 23 I&N Dec. conviction or sentence should be that various controlled-substances 270, 275 (A.G. 2002). He concluded that recognized for purposes of determining offenses can constitute particularly the ‘‘unfortunate situation’’ of drug whether an alien is eligible for asylum. serious crimes even if they do not rise abuse and related crime ‘‘has reached The proposed rule would apply the to the level of aggravated felonies. See, epidemic proportions and . . . tears the same set of principles to federal, state, e.g., Herrera-Davila v. Sessions, 725 F. very fabric of American society.’’ Id. tribal, or local convictions that are App’x 589, 590 (9th Cir. 2018) (the The federal courts have agreed that drug relevant to the eligibility bars described Board and immigration judge did not err offenses are serious, and have noted that above. The rule would not apply to in determining that an immigrant’s ‘‘immigration laws clearly reflect strong convictions that exist prior to the conviction for drug possession congressional policy against lenient effective date of the proposed constituted a particularly serious crime treatment of drug offenders.’’ Ayala- regulation. For convictions or sentences for both asylum and withholding of Chavez v. U.S. INS, 944 F.2d 638 (9th imposed thereafter, the proposed rule removal); Vaskovska v. Lynch, 655 F. Cir. 1991) (quoting Blackwood v. INS, would provide that (1) vacated or App’x 880, 884 (2d Cir. 2016) (the Board 803 F.2d 1165, 1167 (11th Cir. 1988)); expunged convictions, or modified did not err in determining that an see also Hazzard v. INS, 951 F.2d 435, convictions or sentences, remain valid alien’s conviction for drug possession 438 (1st Cir. 1991); cf. Mason v. Brooks, for purposes of ascertaining eligibility was ‘‘a particularly serious crime 862 F.2d 190, 194 (9th Cir. 1988) for asylum if courts took such action for rendering her ineligible for asylum and (‘‘Congress has forcefully expressed our rehabilitative or immigration purposes; withholding of removal’’); Bertrand v. national policy against persons who (2) an immigration judge or other Holder, 448 F. App’x 744, 745 (9th Cir. possess controlled substances by adjudicator may look to evidence other 2011) (the Board did not err in enacting laws . . . to exclude them from than the order itself to determine determining that an alien’s conviction the United States if they are aliens.’’). whether the order was issued for for selling cannabis constituted a For these reasons, the proposed bar on rehabilitative or immigration purposes; asylum eligibility is consistent with the (3) the alien bears the burden of 8 In Fiscal Year (‘‘FY’’) 2017, approximately 20 INA’s current treatment of controlled- establishing that the vacatur, percent of Government benefits fraud offenders at substance offenses. Nevertheless, the expungement, or sentence modification the federal level were not U.S. citizens. See U.S. Departments also propose a limited was not for rehabilitative or immigration Sentencing Comm’n, Quick Facts, https:// www.ussc.gov/sites/default/files/pdf/research-and- exception to the proposed bar for purposes; (4) the alien must further publications/quick-facts/Government_Benefits_ convictions involving a single offense establish that the court had jurisdiction Fraud_FY17.pdf. involving possession for one’s own use and authority to alter the relevant order;

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and (5) there exists a rebuttable (distinguishing between convictions and to determine whether the other presumption against the effectiveness, vacated on the basis of a procedural or requirements of proposed 8 CFR for immigration purposes, of the order substantive defect in the underlying 208.13(c)(7)(v) and 1208.13(c)(7)(v) have vacating, expunging, or modifying a proceeding and those vacated because of been met, notwithstanding the putative conviction or sentence if either (i) the post-conviction events, such as basis of the order on its face. This rule order was entered after the initiation of rehabilitation or immigration is largely consistent with existing any removal proceeding; or (ii) the alien hardships); Matter of Pickering, 23 I&N precedent. See Rodriguez v. U.S. Att’y moved for the order more than one year Dec. 621 (BIA 2003) (finding that a Gen., 844 F.3d 392, 396–97 (3d Cir. after the date of the original order of conviction remains valid for 2016) (applying this approach and conviction or sentencing. The rule immigration purposes if the conviction looking to court records absent a clear would thus ensure that aliens do not is vacated for reasons unrelated to the explanation for the basis of the order in have their convictions vacated or merits of the underlying criminal the order itself); see also Cruz v. Att’y modified for purported rehabilitative proceedings), rev’d on other grounds by Gen., 452 F.3d 240, 244, 248 (3d Cir. purposes that are, in fact, for Pickering v. Gonzales, 465 F.3d 263, 2006) (holding that the Board could immigration purposes. 267–70 (6th Cir. 2006). reasonably determine that a conviction The authority of the Attorney General Courts of appeals have repeatedly was vacated to avoid immigration and the Secretary to promulgate this accepted this principle. The Second consequences where a state prosecutor’s proposed rule derives from sections Circuit deemed it ‘‘reasonable’’ for the letter stipulating the terms of a 208(b)(2)(B)(ii) and (C) of the INA, 8 Board to conclude in Pickering that settlement agreement explicitly stated U.S.C. 1158(b)(2)(B)(ii) and (C). convictions vacated for rehabilitative that the petitioner’s scheduled Prescribing the effect to be given to reasons are still effective for purposes of deportation was a reason for the state’s vacated, expunged, or modified immigration consequences. Saleh v. support for vacating the conviction). convictions or sentences is an ancillary Gonzales, 495 F.3d 17, 24 (2d Cir. 2007). Third, the proposed rule would aspect of prescribing which criminal That interpretation is ‘‘entirely clarify that the alien bears the burden of convictions should constitute consistent with Congress’s intent in establishing that the vacatur, ‘‘particularly serious crimes’’ for enacting the 1996 amendments to expungement, or sentence modification purposes of asylum ineligibility, as well broaden the definition of conviction and was not for rehabilitative or immigration as prescribing additional limitations or advances the two purposes earlier purposes. Therefore, if the record is conditions on asylum eligibility. identified by the Board: It focuses on the inconclusive based on a standard of Additionally, the Attorney General original attachment of guilt (which only preponderance of the evidence, the possesses general authority under a vacatur based on some procedural or order should not be given effect for section 103(g)(2) of the INA, 8 U.S.C. substantive defect would call into immigration purposes. The burden of 1103(g)(2), to ‘‘establish such question) and imposes uniformity on proof is on the alien because the INA regulations . . . as the Attorney General the enforcement of immigration laws.’’ places the overall burden to establish determines to be necessary for carrying Id.; see also Pinho v. Gonzales, 432 F.3d asylum eligibility on the alien. See INA out this section.’’ See Tamenut, 521 193, 215 (3d Cir. 2005) (applying 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i); F.3d at 1004 (describing section Pickering to conclude that a conviction Marikasi v. Lynch, 840 F.3d 281, 287 1103(g)(2) as ‘‘a general grant of was vacated ‘‘based on a defect in the (6th Cir. 2016). Where there is evidence regulatory authority’’).9 Similarly, underlying criminal proceedings,’’ not that ‘‘one or more of the grounds for Congress has conferred upon the for rehabilitative or immigration mandatory denial of the application for Secretary the authority to ‘‘establish purposes); cf. Dickerson v. New Banner relief may apply,’’ the applicant bears such regulations . . . as he deems Inst., Inc., 460 U.S. 103, 120 (1983) the burden of establishing that the bar necessary for carrying out his authority (accepting that Congress need not ‘‘be at issue does not apply. 8 CFR under the provisions of [the INA].’’ INA bound by post-conviction state actions 1240.8(d). Consistent with this 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3). . . . that vary widely from State to State principle, in an analogous context, the First, regarding the immigration effect and that provide less than positive Eighth Circuit has held that, because the of expungements, vacaturs, or sentence assurance that the person in question no INA places the burden of proof on the modifications, the rule would codify the longer poses an unacceptable risk of alien to establish eligibility for principle set forth in Matter of Thomas dangerousness’’). , a form of and Thompson, 27 I&N Dec. 674 (A.G. For similar reasons, the rule would discretionary relief, the alien bears the 2019), that, if the underlying reason for provide that court orders modifying burden to prove that he has no the vacatur, expungement, or criminal sentences for rehabilitative disqualifying convictions, including the modification was for ‘‘rehabilitation or purposes should also have no effect on burden to show that the vacatur of any immigration hardship,’’ the conviction the alien’s eligibility for asylum. See disqualifying conviction was not for remains effective for immigration Matter of Thomas and Thompson, 27 rehabilitative purposes. Andrade- purposes. Id. at 680; see also id. I&N Dec. at 680 (explaining that ‘‘the Zamora v. Lynch, 814 F.3d 945, 949 (8th Pickering test should apply to state- Cir. 2016).10 This allocation of the 9 The Attorney General has previously exercised court orders that modify, clarify, or his authorities to address related questions otherwise alter the term of regarding what immigration effect should be given 10 In contrast, when DHS uses a criminal to expunged convictions. For example, in 1959, imprisonment or sentence associated conviction to prove deportability of an admitted Attorney General Rogers concluded that certain with a state-court conviction’’). alien, some courts have held that the Government narcotics convictions would survive subsequent Second, to avoid gamesmanship and bears the burden of establishing that a subsequent expungement for purposes of the immigration laws. manipulation in the drafting of orders vacatur of that conviction should not be recognized Matter of A–F-, 8 I&N Dec. 429, 445–46 (A.G. 1959). because the vacatur was granted for immigration More recently, Attorney General Ashcroft held that, vacating a conviction or modifying a purposes. See Nath v. Gonzales, 467 F.3d 1185, in light of the INA’s definition of ‘‘conviction,’’ an criminal sentence, the proposed 1188–89 (9th Cir. 2006); Pickering, 465 F.3d at 268– alien whose firearms conviction was expunged regulations would allow an adjudicator 69 & n.4. Unlike applications for asylum and other pursuant to section 1203.4 of the California Penal to look beyond the face of the order to forms of relief, where the alien has the burden of Code remained ‘‘convicted’’ for immigration proving eligibility, the Government bears the purposes. Matter of Luviano-Rodriguez, 23 I&N Dec. determine whether it was issued for burden of establishing that an admitted alien is 718, 718 (A.G. 2005). rehabilitative or immigration purposes Continued

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burden of proof makes sense because, as interpretive clarification order,’’ noting effort to seek a subsequent vacatur or the Board and federal courts have noted, that it was obtained from a different expungement of a conviction, or the an alien is in the ‘‘best position’’ to judge, long after entry of the original modification of sentence, the present evidence on the issue. Id. at 950. sentence, for the purpose of preventing immigration adjudicator should weigh The alien ‘‘was a direct party to the enhancement of the defendant’s that fact against recognizing the vacatur criminal proceeding leading to the sentence for unlawful reentry in federal or modification. It is reasonable to vacation of his conviction and is court. Id. at 1289; cf. Herrera v. U.S. conclude that an alien who has a therefore in the best position to know Att’y Gen., 811 F.3d 1298, 1299–1301 meritorious challenge to a criminal why the conviction was vacated and to (11th Cir. 2016) (affirming a Board conviction based on a procedural or offer evidence related to the record of decision declining to give effect to substantive defect is more likely to seek conviction.’’ Matter of Chavez-Martinez, orders clarifying that defendants were post-conviction relief sooner than an 24 I&N Dec. 272, 274 (BIA 2007); see never sentenced to terms of confinement alien who is seeking relief on also Rumierz v. Gonzales, 456 F.3d 31, when the original sentencing orders rehabilitative grounds, and who might 39 (1st Cir. 2006) (outlining several clearly stated to the contrary). A delay such a challenge until DHS other reasons that placing the burden on jurisdictional defect could also arise commences immigration proceedings or the alien is rational, such as similar where state law limits the court’s attempts to remove the alien. See burden allocations in the context of authority to grant post-conviction relief Rumierz, 456 F.3d at 38 (affirming the criminal law and habeas petitions). in certain ways, such as by imposing a Board’s refusal to recognize a vacatur Fourth, the rule would provide that time limitation. See Matter of Estrada, and the Board’s reasoning that ‘‘Rumierz the alien must establish that the court 26 I&N Dec. at 756 (noting that section could easily have sought to vacate the issuing an order vacating or expunging 17–10–1(f) of the Georgia Code January 1994 Vermont conviction and a conviction or modifying a sentence Annotated imposes strict time limits have presented the vacated conviction had jurisdiction and authority to do so. with respect to a sentencing court’s to the [Board] in the six years before the This requirement would be consistent ability to change or ‘‘modify’’ a [Board’s] 2000 order’’). This rule with Board precedent, which provides sentence). promotes finality in immigration that facially valid orders can be Finally, the proposed rule creates a proceedings by encouraging an alien to disregarded based on a lack of rebuttable presumption that the order act diligently if there is a legitimate jurisdiction. See, e.g., Matter of F-, 8 vacating or expunging the conviction or basis to challenge a conviction or I&N Dec. 251 (BIA 1959) (‘‘[T]he modifying the sentence was issued for sentence. presumption of regularity and of immigration purposes if either (1) the jurisdiction [of a state court order] may order was entered after the initiation of C. Reconsiderations of Discretionary be overcome by extrinsic evidence or by any proceeding to remove the alien from Denials of Asylum the record itself.’’); cf. Adam v. Saenger, the United States; or (2) the alien moved The proposed rule would remove the 303 U.S. 59, 62 (1938) (‘‘If it appears on for the order more than one year after automatic review of a discretionary its face to be a record of a court of the date of the original order of denial of an alien’s asylum application general jurisdiction, such jurisdiction conviction or sentencing. by removing and reserving paragraph (e) over the cause and the parties is to be Precedents establish that the timing of in 8 CFR 208.16 and 1208.16. The presumed unless disproved by extrinsic such a process is relevant to whether the present regulation provides that the evidence, or by the record itself. . . . resulting order should be recognized for denial of asylum shall be reconsidered But in a suit upon the judgment of immigration purposes. The initiation of in the event that an applicant is denied another state the jurisdiction of the such a process after removal asylum solely in the exercise of court which rendered it is open to proceedings have commenced naturally discretion, and the applicant is judicial inquiry . . . and when the raises an inference that the resulting subsequently granted withholding of matter of fact or law on which order was issued for immigration or deportation or removal under this jurisdiction depends was not litigated in rehabilitative purposes. For instance, in section, thereby effectively precluding the original suit it is a matter to be Andrade-Zamora, the Eighth Circuit admission of the applicant’s spouse or adjudicated in the suit founded upon refused to credit a state court’s vacatur minor children following to join him or the judgment.’’ (citations omitted)). In of a conviction when the vacatur her. Factors to be considered include short, an order purporting to vacate, occurred two weeks after the the reasons for the denial and expunge, or otherwise modify a Government commenced removal reasonable alternatives available to the conviction or sentence is inoperative for proceedings based on the conviction, applicant such as reunification with his purposes of immigration law if the state and where the state court also modified or her spouse or minor children in a court lacked jurisdiction over the the alien’s sentence for a different third country. This provision, however, subject matter or the parties to the conviction in an apparent attempt to fit has proved confusing, inefficient, and action. the conviction within an exception to a unnecessary. Jurisdictional defects in court orders criminal ground of removability. 814 The courts of appeals have expressed might arise in a number of ways. For F.3d at 949. The court affirmed the ongoing confusion related to this example, in United States v. Garza- Board’s refusal to recognize the vacatur provision. For example, the regulation Mendez, 735 F.3d 1284 (11th Cir. 2013), and modification, reasoning: ‘‘The states that when an asylum application a criminal sentencing case, the Eleventh timing and effect of the order . . . raise is denied in the exercise of discretion, Circuit refused to recognize a an inference the state court did not but withholding of removal is granted, clarification order issued by a state vacate the conviction on a substantive ‘‘the denial of asylum shall be judge after the sentencing judge had or procedural ground, but rather to reconsidered,’’ but the regulation does ordered the defendant to serve 12 avoid the immigration consequences of not say who shall reconsider the denial, months of confinement. The Eleventh the conviction.’’ Id. at 949–50. when the reconsideration shall occur, or Circuit rejected the ‘‘subjective, Further, the rule would create a how the reconsideration is to be rebuttable presumption providing that if initiated. See Shantu v. Lynch, 654 F. deportable by clear and convincing evidence. INA more than a year has passed between App’x 608, 613–14 (4th Cir. 2016) 240(c)(3)(A), 8 U.S.C. 1229a(c)(3)(A). the original conviction and the alien’s (discussing these ambiguities); see also

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Huang v. INS, 436 F.3d 89, 93 (2d Cir. B. Unfunded Mandates Reform Act of The proposed regulation would 2006). These ambiguities have not been 1995 provide seven additional mandatory ‘‘definitively resolved,’’ Shantu, 654 F. This proposed rule will not result in bars to eligibility for asylum pursuant to App’x at 614, and continued litigation the expenditure by state, local, and the Attorney General and the Secretary’s on these questions would be an ongoing tribal governments, in the aggregate, or authorities under sections 208(b)(2)(B)(ii), 208(b)(2)(C), and burden for applicants, the immigration by the private sector, of $100 million or system, and courts. 208(d)(5) of the INA.12 The proposed more in any one year, and it will not Further, mandating that the decision rule would add bars on eligibility for significantly or uniquely affect small maker reevaluate the very issue just aliens who commit certain offenses in governments. Therefore, no actions were decided is an inefficient practice that, in the United States after entering the deemed necessary under the provisions the view of the Departments, grants country. Those bars would apply to of the Unfunded Mandates Reform Act insufficient deference to the original fact aliens who are convicted of (1) a felony of 1995. See 2 U.S.C. 1532(a). finding and exercise of discretion. The under federal or state law; (2) an offense regulation also appears unnecessary C. Congressional Review Act under 8 U.S.C. 1324(a)(1)(A) or given that other regulations provide The Office of Information and 1324(a)(1)(2) (Alien Smuggling or multiple avenues to challenge or Regulatory Affairs has determined that Harboring); (3) an offense under 8 U.S.C. otherwise seek to change a discretionary 1326 (Illegal Reentry); (4) a federal, this proposed rule is not a major rule as denial of asylum coupled with a grant state, tribal, or local crime involving defined by section 804 of the of withholding of removal.11 First, an criminal street gang activity; (5) certain Congressional Review Act. 5 U.S.C. immigration judge may reconsider that federal, state, tribal, or local offenses 804(2). This rule will not result in an decision upon his or her own motion. 8 concerning the operation of a motor annual effect on the economy of $100 CFR 1003.23(b)(1). Second, the alien vehicle while under the influence of an million or more; a major increase in may file a motion to reconsider. Id. intoxicant; (6) a federal, state, tribal, or costs or prices; or significant adverse Third, the alien may also appeal the local domestic violence offense, or who effects on competition, employment, decision to the Board. 8 CFR 1003.38. are found by an adjudicator to have investment, productivity, innovation, or The existence of at least three engaged in acts of battery or extreme alternative processes for altering a on the ability of United States-based cruelty in a domestic context, even if no discretionary denial of asylum obviates enterprises to compete with foreign- conviction resulted; and (7) certain the need for a mandatory fourth. based enterprises in domestic and misdemeanors under federal or state law Moreover, the objective of facilitating export markets. for offenses related to false family reunification, see Huang, 436 D. Executive Order 12866 (Regulatory identification; the unlawful receipt of F.3d at 93 (describing 8 CFR 1208.16(e) Planning and Review), Executive Order public benefits from a federal, state, as ‘‘manifestly a law designed to further 13563 (Improving Regulation and tribal, or local entity; or the possession family reunification’’), can be fulfilled Regulatory Review), and Executive or trafficking of a controlled substance even in the absence of the existing Order 13771 (Reducing Regulation and or controlled-substance paraphernalia. reconsideration provision because the Controlling Regulatory Costs) The seven proposed bars would be in immigration judge (or other decision addition to the existing mandatory bars maker) already considers these factors The Office of Information and relating to the persecution of others, when making a discretionary decision Regulatory Affairs, Office of convictions for particularly serious in the first instance, see Fisenko v. Management and Budget (OMB), has crimes, commission of serious Lynch, 826 F.3d 287, 292 (6th Cir. 2016) designated this rule a ‘‘significant nonpolitical crimes, security threats, (stating that ‘‘a ‘crucial factor in regulatory action’’ under section 3(f)(4) terrorist activity, and firm resettlement weighing asylum as a discretionary of Executive Order 12866, but not an in another country that are currently matter’ is family reunification’’ (internal economically significant regulatory contained in the INA and its quotation marks and citation omitted)). action. Accordingly, the rule has been implementing regulations. See INA submitted to OMB for review. The 208(b)(2); 8 CFR 208.13 and 1208.13. IV. Regulatory Requirements Departments certify that this rule has Under the current statutory and A. Regulatory Flexibility Act been drafted in accordance with the regulatory framework, asylum officers principles of Executive Order 12866, and immigration judges consider the The Departments have reviewed this section 1(b), Executive Order 13563, and proposed rule in accordance with the applicability of mandatory bars to the Executive Order 13771. relief of asylum in every proceeding Regulatory Flexibility Act (5 U.S.C. 601 Executive Orders 12866 and 13563 et seq.)) and have determined that this involving an alien who has submitted direct agencies to assess all costs and rule will not have a significant an I–589 application for asylum. benefits of available regulatory economic impact on a substantial Although the proposed regulation alternatives and, if regulation is number of small entities. The rule would expand the mandatory bars to necessary, to select regulatory would not regulate ‘‘small entities’’ as asylum, the proposed regulation does approaches that maximize net benefits that term is defined in 5 U.S.C. 601(6). not change the nature or scope of the (including potential economic, Only individuals, rather than entities, role of an immigration judge or an environmental, public health, and safety are eligible to apply for asylum, and asylum officer during proceedings for effects, distributive impacts, and only individuals are eligible to apply for consideration of asylum applications. equity). Executive Order 13563 asylum or are otherwise placed in Immigration judges and asylum officers immigration proceedings. emphasizes the importance of using the are already trained to consider both an best available methods to quantify costs alien’s previous conduct and criminal 11 With respect to the DHS regulation at 8 CFR and benefits, reducing costs, 208.16(e), if USCIS denies an individual’s asylum harmonizing rules, and promoting 12 As discussed further below, the proposed application on discretionary grounds, USCIS does flexibility. Similarly, Executive Order regulation would not otherwise impact the ability not have jurisdiction to consider withholding of 13771 requires agencies to manage both of an alien who is denied asylum to receive the removal eligibility because withholding of removal protection of withholding of removal under the INA determinations are made by immigration judges and the public and private costs of or withholding of removal or deferral of removal the Board. regulatory actions. under the CAT.

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record to determine whether any apart from this rule).15 To the extent not affect the eligibility of applicants for immigration consequences result, and there are any impacts of this rule, they the employment authorization the proposed rule does not propose any would almost exclusively fall on that documents available to recipients of adjudications that are more challenging population.16 those protections and during the than those that are already conducted. The full extent of the impacts on this pendency of the consideration of the For example, immigration judges population is unclear and would application in accordance with the already consider the documentation of depend on the specific circumstances current regulations and agency an alien’s criminal record that is filed by and personal characteristics of each procedures. See 8 CFR 274a.12(c)(8) and the alien, the alien’s representative, or alien, and neither DHS nor DOJ collects (18), 208.7, and 1208.7. the DHS representative in order to such data at such a level of granularity. Both asylum applicants and those who The proposed rule would also remove determine whether one of the the provision at 8 CFR 208.16(e) and mandatory bars applies and whether the receive withholding of removal may obtain work authorization in the United 1208.16(e) regarding reconsideration of alien warrants asylum as a matter of discretionary denials of asylum. This discretion. Because the proposed bars States. Although asylees may apply for lawful permanent resident status and change would have no impact on DHS all relate to an alien’s criminal adjudicative operations because DHS convictions or other criminal conduct, later citizenship, they are not required does not adjudicate withholding adjudicators will conduct the same to do so, and some do not. Further, requests. DOJ estimates that analysis to determine the applicability although asylees may bring certain immigration judges nationwide must of the bars proposed by the rule.13 The family members to the United States, apply 8 CFR 1208.16(e) in Departments do not expect the proposed not all asylees have family members or approximately 800 cases per year on additional mandatory bars to increase family members that wish to leave their average.17 The removal of the the adjudication time for immigration countries. Moreover, family requirement to reconsider a court proceedings involving asylum members of aliens granted withholding discretionary denial would increase applications. of removal may have valid asylum immigration court efficiencies and The Departments note that the claims in their own right, which would reduce any cost from the increased proposed expansion of the mandatory provide them with a potential path to bars for asylum would likely result in the United States as well. The only clear adjudication time by no longer requiring fewer asylum grants annually; 14 impact is that aliens granted a second review of the same application however, because asylum applications withholding of removal generally may by the same immigration judge. This are inherently fact-specific, and because not travel outside the United States impact, however, would likely be minor there may be multiple bases for denying without executing their underlying because of the small number of affected an asylum application, neither the order of removal and, thus, may not be cases. Accordingly, DOJ assesses that Department of Justice (‘‘DOJ’’) nor DHS allowed to return to the United States; removal of paragraphs 8 CFR 208.16(e) can quantify precisely the expected however, even in that situation— and 1208.16(e) would not increase any decrease. An alien who would be barred depending on the destination of their EOIR costs or operations, and would, if from asylum as a result of the proposed travel—they may have a prima facie anything, result in a small increase in rule may still be eligible to apply for the case for another grant of withholding of efficiency. The Departments note that protection of withholding of removal removal should they attempt to reenter. removal of 8 CFR 208.16(e) and under section 241(b)(3) of the INA or In short, there is no precise 1208.16(e) may have a marginal cost for quantification available for the impact, withholding of removal or deferral of aliens in immigration court proceedings if any, of this rule beyond the general removal under regulations by removing one avenue for an alien notion that it will likely result in fewer implementing U.S. obligations under who would otherwise be denied asylum grants of asylum on the whole. as a matter of discretion to be granted Article 3 of the CAT. See INA 241(b)(3), Applications for withholding of 8 U.S.C. 1231(b)(3); 8 CFR 208.16, that relief. DOJ notes, however, that of removal typically require a similar the average of 800 aliens situated as 208.17 through 18, 1208.16, and 1208.17 amount of in-court time to complete as through 18. For those aliens barred from such each year during the last ten years, an asylum application due to a similar an average of fewer than 150, or 0.4%, asylum under this rule who would nucleus of facts. 8 CFR 1208.3(b) (an otherwise be positively adjudicated for of the average 38,000 total asylum asylum application is deemed to be an 18 asylum, it is possible they would qualify completions each year filed an appeal application for withholding of removal). in their case, so the affected population for withholding (provided a bar to In addition, this proposed rule would withholding did not apply separate and is very small and the overall impact would be nominal at most.19 Moreover, 15 Because statutory withholding of removal has 13 The Departments note that one of the newly a higher burden of proof, an alien granted such such aliens would retain the ability to proposed bars, regarding whether or not the alien protection would necessarily also meet the statutory file a motion to reconsider in such a has ‘‘engaged’’ in certain acts of battery or extreme burden of proof for asylum, but would not be situation and, thus, would not actually cruelty, does not necessarily require a criminal otherwise eligible for asylum due to a statutory bar conviction. The Departments believe that a criminal or as a matter of discretion. Because asylum 17 arrest or conviction is the most likely evidence to applications may be denied for multiple reasons This approximation is based on the number of be filed with the immigration court related to this and because the proposed bars do not have initial case completions with an asylum application bar, but even in cases where no such evidence is analogues in existing immigration law, there is no on file that had a denial of asylum but a grant of available, the analysis by immigration judges precise data on how many otherwise grantable withholding during FYs 2009 through the third related to this proposed bar is not an expansion asylum applications would be denied using these quarter of 2018. from the current analysis immigration judges may bars and, thus, there is no way to calculate precisely 18 Thirty-eight thousand is the average of conduct during the course of removal proceedings. how many aliens would be granted withholding. completions of cases with an asylum application on See, e.g., INA 212(a)(2)(C) (providing that an alien Further, because the immigration judge would have file from years FY 2008 through FY 2018. is inadmissible if ‘‘the Attorney General knows or to adjudicate the application in either case, there is Completions consist of both initial case has reason to believe’’ that the alien is an illicit no cost to DOJ. completions and subsequent case completions. trafficker of a controlled substance, regardless of 16 In FY 2018, DOJ’s immigration courts 19 Because each case may have multiple bases for whether the alien has a controlled substance-related completed 45,923 cases with an application for appeal and appeal bases are not tracked to specific conviction). asylum on file. For the first three quarters of FY levels of granularity, it is not possible to quantify 14 In FY 2018, DOJ’s immigration courts granted 2018, 622 applicants were denied asylum but precisely how many appeals were successful on this 13,169 applications for asylum. granted withholding. particular issue.

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lose the opportunity for reconsideration § 208.13 Establishing asylum eligibility. child neglect, or child abandonment; or of a discretionary denial. * * * * * that involves conduct amounting to a For the reasons explained above, the (c) * * * domestic assault or battery offense, expected costs of this proposed rule are (6) Additional limitations on including a misdemeanor crime of likely to be de minimis. This proposed eligibility for asylum. For applications domestic violence, as described in rule is accordingly exempt from filed on or after [the effective date of the section 922(g)(9) of title 18, a Executive Order 13771. See Office of final rule], an alien shall be found misdemeanor crime of domestic Mgmt. & Budget, Guidance ineligible for asylum if: violence as described in section Implementing Executive Order 13771, (i) The alien has been convicted on or 921(a)(33) of title 18, a crime of Titled ‘‘Reducing Regulation and after such date of an offense arising domestic violence as described in Controlling Regulatory Costs’’ (2017). under sections 274(a)(1)(A), 274(a)(2), or section 12291(a)(8) of title 34, or any 276 of the Act; crime based on conduct in which the E. Executive Order 13132 (Federalism) (ii) The alien has been convicted on alien harassed, coerced, intimidated, This rule will not have substantial or after such date of a Federal, State, voluntarily or recklessly used (or direct effects on the states, on the tribal, or local crime that the Secretary threatened to use) force or violence relationship between the national knows or has reason to believe was against, or inflicted physical injury or government and the states, or on the committed in support, promotion, or physical pain, however slight, upon a distribution of power and furtherance of the activity of a criminal person, and committed by: responsibilities among the various street gang as that term is defined either (1) A current or former spouse of the levels of government. Therefore, in under the jurisdiction where the person; accordance with section 6 of Executive conviction occurred or in section 521(a) (2) An alien with whom the person Order 13132, this rule does not have of title 18; shares a child in common; sufficient federalism implications to (iii) The alien has been convicted on (3) An alien who is cohabiting with or warrant the preparation of a federalism or after such date of an offense for has cohabited with the person as a driving while intoxicated or impaired as summary impact statement. spouse; those terms are defined under the (4) An alien similarly situated to a F. Executive Order 12988 (Civil Justice jurisdiction where the conviction spouse of the person under the domestic Reform) occurred (including a conviction for or family violence laws of the This rule meets the applicable driving while under the influence of or jurisdiction where the offense occurs; or standards set forth in sections 3(a) and impaired by alcohol or drugs) without (5) Any other alien against a person 3(b)(2) of Executive Order 12988. regard to whether the conviction is who is protected from that alien’s acts classified as a misdemeanor or felony under the domestic or family violence G. Paperwork Reduction Act under Federal, State, tribal, or local law, laws of the United States or any State, This rule does not propose new or in which such impaired driving was a tribal government, or unit of local revisions to existing ‘‘collection[s] of cause of serious bodily injury or death government. information’’ as that term is defined of another person; (B) In making a determination under (iv)(A) The alien has been convicted under the Paperwork Reduction Act of paragraph (c)(6)(v)(A) of this section, on or after such date of a second or 1995, Public Law 104–13, 44 U.S.C. including in determining the existence subsequent offense for driving while 3501 et seq., and its implementing of a domestic relationship between the intoxicated or impaired as those terms regulations, 5 CFR part 1320. alien and the victim, the underlying are defined under the jurisdiction where conduct of the crime may be considered List of Subjects in 8 CFR Parts 208 and the conviction occurred (including a and the asylum officer is not limited to 1208 conviction for driving while under the facts found by the criminal court or Administrative practice and influence of or impaired by alcohol or provided in the underlying record of procedure, Aliens, Immigration, drugs) without regard to whether the conviction; Reporting and recordkeeping conviction is classified as a (C) An alien who was convicted of requirements. misdemeanor or felony under Federal, offenses described in paragraph State, tribal, or local law; (c)(6)(v)(A) of this section is not subject Proposed Regulatory Amendments (B) A finding under paragraph to ineligibility for asylum on that basis DEPARTMENT OF HOMELAND (c)(6)(iv)(A) of this section does not if the alien would be described in SECURITY require the asylum officer to find the section 237(a)(7)(A) of the Act were the first conviction for driving while crimes or conduct considered grounds Accordingly, for the reasons set forth intoxicated or impaired (including a for deportability under section in the preamble, the Acting Secretary of conviction for driving while under the 237(a)(2)(E)(i) through (ii) of the Act. Homeland Security is proposing to influence of or impaired by alcohol or (vi) The alien has been convicted on amend 8 CFR part 208 as follows: drugs) as a predicate offense. The or after such date of— asylum officer need only make a factual (A) Any felony under Federal, State, PART 208—PROCEDURES FOR determination that the alien was tribal, or local law; ASYLUM AND WITHHOLDING OF previously convicted for driving while (B) Any misdemeanor offense under REMOVAL intoxicated or impaired as those terms Federal, State, tribal, or local law ■ 1. The authority citation for part 208 are defined under the jurisdiction where involving: (1) The possession or use of an continues to read as follows: the convictions occurred (including a conviction for driving while under the identification document, authentication Authority: 8 U.S.C. 1101, 1103, 1158, influence of or impaired by alcohol or feature, or false identification document 1226, 1252, 1282; Title VII of Public Law drugs); without lawful authority, unless the 110–229, 8 CFR part 2. (v)(A) The alien has been convicted alien can establish that the conviction ■ 2. Section 208.13 is amended by on or after such date of a crime that resulted from circumstances showing adding paragraphs (c)(6) through (9) to involves conduct amounting to a crime that the document was presented before read as follows: of stalking; or a crime of child abuse, boarding a common carrier, that the

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document related to the alien’s crime not punishable by more than one § 1208.13 Establishing asylum eligibility. eligibility to enter the United States, year of imprisonment. * * * * * that the alien used the document to (iii) Whether any activity or (c) * * * depart a country in which the alien has conviction also may constitute a basis (6) Additional limitations on claimed a fear of persecution, and that for removability under the Act is eligibility for asylum. For applications the alien claimed a fear of persecution immaterial to a determination of asylum filed on or after [the effective date of the without delay upon presenting himself eligibility. final rule], an alien shall be found or herself to an immigration officer (iv) All references to a criminal ineligible for asylum if: upon arrival at a United States port of offense or criminal conviction shall be (i) The alien has been convicted on or entry; deemed to include any attempt, after such date of an offense arising (2) The receipt of Federal public conspiracy, or solicitation to commit the under sections 274(a)(1)(A), 274(a)(2), or benefits, as defined in 8 U.S.C. 1611(c), offense or any other inchoate form of the 276 of the Act; from a Federal entity, or the receipt of offense. (ii) The alien has been convicted on similar public benefits from a State, (v) No order vacating a conviction, or after such date of a Federal, State, tribal, or local entity, without lawful modifying a sentence, clarifying a tribal, or local crime that the Attorney authority; or sentence, or otherwise altering a General or Secretary knows or has (3) Possession or trafficking of a conviction or sentence, shall have any reason to believe was committed in controlled substance or controlled- effect unless the asylum officer support, promotion, or furtherance of substance paraphernalia, other than a determines that— the activity of a criminal street gang as (A) The court issuing the order had single offense involving possession for that term is defined under the jurisdiction and authority to do so; and jurisdiction where the conviction one’s own use of 30 grams or less of (B) The order was not entered for marijuana; occurred or in section 521(a) of title 18; rehabilitative purposes or for purposes (iii) The alien has been convicted on (vii) There are serious reasons for of ameliorating the immigration or after such date of an offense for believing the alien has engaged on or consequences of the conviction or driving while intoxicated or impaired as after such date in acts of battery or sentence. those terms are defined under the extreme cruelty as defined in 8 CFR (8) For purposes of paragraph jurisdiction where the conviction 204.2(c)(1)(vi), upon a person, and (c)(7)(v)(B) of this section, the order occurred (including a conviction for committed by: shall be presumed to be for the purpose driving while under the influence of or (A) A current or former spouse of the of ameliorating immigration impaired by alcohol or drugs) without person; consequences if: regard to whether the conviction is (B) An alien with whom the person (i) The order was entered after the classified as a misdemeanor or felony shares a child in common; initiation of any proceeding to remove under Federal, State, tribal, or local law, (C) An alien who is cohabiting with the alien from the United States; or in which such impaired driving was a or has cohabited with the person as a (ii) The alien moved for the order cause of serious bodily injury or death spouse; more than one year after the date of the of another person; (D) An alien similarly situated to a original order of conviction or (iv)(A) The alien has been convicted spouse of the person under the domestic sentencing. on or after such date of a second or or family violence laws of the (9) An asylum officer is authorized to subsequent offense for driving while jurisdiction where the offense occurs; or look beyond the face of any order intoxicated or impaired as those terms (E) Any other alien against a person purporting to vacate a conviction, are defined under the jurisdiction where who is protected from that alien’s acts modify a sentence, or clarify a sentence the conviction occurred (including a under the domestic or family violence to determine whether the requirements conviction for driving while under the laws of the United States or any State, of paragraph (c)(7)(v) of this section influence of or impaired by alcohol or tribal government, or unit of local have been met in order to determine drugs) without regard to whether the government, even if the acts did not whether such order should be given any conviction is classified as a result in a criminal conviction; effect under this section. misdemeanor or felony under Federal, (F) Except that an alien who was § 208.16 [Amended] State, tribal, or local law; convicted of offenses or engaged in (B) A finding under paragraph ■ 3. In § 208.16, remove and reserve conduct described in paragraph (c)(6)(iv)(A) of this section does not paragraph (e). (c)(6)(vii) of this section is not subject to require the immigration judge to find ineligibility for asylum on that basis if DEPARTMENT OF JUSTICE the first conviction for driving while the alien would be described in section Accordingly, for the reasons set forth intoxicated or impaired (including a 237(a)(7)(A) of the Act were the crimes in the preamble, the Attorney General conviction for driving while under the or conduct considered grounds for proposes to amend 8 CFR part 1208 as influence of or impaired by alcohol or deportability under section follows: drugs) as a predicate offense. The 237(a)(2)(E)(i)–(ii) of the Act. immigration judge need only make a (7) For purposes of paragraph (c)(6) of PART 1208—PROCEDURES FOR factual determination that the alien was this section: ASYLUM AND WITHHOLDING OF previously convicted for driving while (i) The term ‘‘felony’’ means any REMOVAL intoxicated or impaired as those terms crime defined as a felony by the relevant ■ are defined under the jurisdiction where jurisdiction (Federal, State, tribal, or 4. The authority citation for part 1208 the convictions occurred (including a local) of conviction, or any crime continues to read as fol1ows: conviction for driving while under the punishable by more than one year of Authority: 8 U.S.C. 1101, 1103, 1158, influence of or impaired by alcohol or imprisonment. 1226, 1252, 1282; Title VII of Public Law drugs). (ii) The term ‘‘misdemeanor’’ means 110–229. (v)(A) The alien has been convicted any crime defined as a misdemeanor by ■ 5. Section 1208.13 is amended by on or after such date of a crime that the relevant jurisdiction (Federal, State, adding paragraphs (c)(6) through (9) to involves conduct amounting to a crime tribal, or local) of conviction, or any read as follows: of stalking; or a crime of child abuse,

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child neglect, or child abandonment; or resulted from circumstances showing (ii) The term ‘‘misdemeanor’’ means that involves conduct amounting to a that the document was presented before any crime defined as a misdemeanor by domestic assault or battery offense, boarding a common carrier, that the the relevant jurisdiction (Federal, State, including a misdemeanor crime of document related to the alien’s tribal, or local) of conviction, or any domestic violence, as described in eligibility to enter the United States, crime not punishable by more than one section 922(g)(9) of title 18, a that the alien used the document to year of imprisonment. misdemeanor crime of domestic depart a country in which the alien has (iii) Whether any activity or violence as described in section claimed a fear of persecution, and that convictions also may constitute a basis 921(a)(33) of title 18, a crime of the alien claimed a fear of persecution for removability under the Act is domestic violence as described in without delay upon presenting himself immaterial to a determination of asylum section 12291(a)(8) of title 34, or any or herself to an immigration officer eligibility. crime based on conduct in which the upon arrival at a United States port of (iv) All references to a criminal alien harassed, coerced, intimidated, entry; offense or criminal conviction shall be voluntarily or recklessly used (or (2) The receipt of Federal public deemed to include any attempt, threatened to use) force or violence benefits, as defined in 8 U.S.C. 1611(c), conspiracy, or solicitation to commit the against, or inflicted physical injury or from a Federal entity, or the receipt of offense or any other inchoate form of the physical pain, however slight, upon a similar public benefits from a State, offense. person, and committed by: tribal, or local entity, without lawful (1) A current or former spouse of the authority; or (v) No order vacating a conviction, person; (3) Possession or trafficking of a modifying a sentence, clarifying a (2) An alien with whom the person controlled substance or controlled- sentence, or otherwise altering a shares a child in common; substance paraphernalia, other than a conviction or sentence, shall have any (3) An alien who is cohabiting with or single offense involving possession for effect unless the asylum officer has cohabited with the person as a one’s own use of 30 grams or less of determines that— spouse; marijuana. (A) The court issuing the order had (4) An alien similarly situated to a (vii) There are serious reasons for jurisdiction and authority to do so; and spouse of the person under the domestic believing the alien has engaged on or (B) The order was not entered for or family violence laws of the after such date in acts of battery or rehabilitative purposes or for purposes jurisdiction where the offense occurs; or extreme cruelty as defined in 8 CFR of ameliorating the immigration (5) Any other alien against a person 204.2(c)(1)(vi), upon a person, and consequences of the conviction or who is protected from that alien’s acts committed by: sentence. under the domestic or family violence (A) A current or former spouse of the (8) For purposes of paragraph laws of the United States or any State, person; (c)(7)(v)(B) of this section, the order tribal government, or unit of local (B) An alien with whom the person shall be presumed to be for the purpose government. shares a child in common; of ameliorating immigration (B) In making a determination under (C) An alien who is cohabiting with consequences if: paragraph (c)(6)(v) of this section, or has cohabited with the person as a including in determining the existence spouse; (i) The order was entered after the initiation of any proceeding to remove of a domestic relationship between the (D) An alien similarly situated to a the alien from the United States; or alien and the victim, the underlying spouse of the person under the domestic conduct of the crime may be considered or family violence laws of the (ii) The alien moved for the order and the adjudicator is not limited to jurisdiction where the offense occurs; or more than one year after the date of the facts found by the criminal court or (E) Any other alien against a person original order of conviction or provided in the underlying record of who is protected from that alien’s acts sentencing. conviction. under the domestic or family violence (9) An immigration judge or other (C) An alien who was convicted of laws of the United States or any State, adjudicator is authorized to look beyond offenses or engaged in conduct tribal government, or unit of local the face of any order purporting to described in paragraph (c)(6)(v)(A) of government, even if the acts did not vacate a conviction, modify a sentence, this section is not subject to ineligibility result in a criminal conviction; or clarify a sentence to determine for asylum on that basis if the alien (F) Except that an alien who was whether the requirements of paragraph would be described in section convicted of offenses or engaged in (c)(7)(v) of this section have been met in 237(a)(7)(A) of the Act were the crimes conduct described in paragraph order to determine whether such order or conduct considered grounds for (c)(6)(vii) of this section is not subject to should be given any effect under this deportability under section ineligibility for asylum on that basis if section. 237(a)(2)(E)(i) through (ii) of the Act. the alien would be described in section (vi) The alien has been convicted on 237(a)(7)(A) of the Act were the crimes § 1208.16 [Amended] or after such date of— or conduct considered grounds for ■ 6. In § 1208.16, remove and reserve (A) Any felony under Federal, State, deportability under section paragraph (e). tribal, or local law; 237(a)(2)(E)(i)–(ii) of the Act. Dated: December 9, 2019. (B) Any misdemeanor offense under (7) For purposes of paragraph (c)(6) of Chad F. Wolf, Federal, State, tribal, or local law this section: Acting Secretary of Homeland Security. involving (i) The term ‘‘felony’’ means any (1) The possession or use of an crime defined as a felony by the relevant Dated: December 10, 2019. identification document, authentication jurisdiction (Federal, State, tribal, or William P. Barr, feature, or false identification document local) of conviction, or any crime Attorney General. without lawful authority, unless the punishable by more than one year [FR Doc. 2019–27055 Filed 12–18–19; 8:45 am] alien can establish that the conviction imprisonment. BILLING CODE 9111–97–P 4410–30–P

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