Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review

Federal RegisterJun 15, 2020

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 235

RIN 1615-AC42

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003, 1208, and 1235

[EOIR Docket No. 18-0002; A.G. Order No. 4714-2020]

RIN 1125-AA94

Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review

AGENCY:

Executive Office for Immigration Review, Department of Justice; U.S. Citizenship and Immigration Services, Department of Homeland Security.

ACTION:

Joint notice of proposed rulemaking.

SUMMARY:

The Department of Justice and the Department of Homeland Security (collectively, “the Departments”) propose to amend the regulations governing credible fear determinations so that individuals found to have such a fear will have their claims for asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (“INA” or “the Act”) (“statutory withholding of removal”), or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), adjudicated by an immigration judge within the Executive Office for Immigration Review (“EOIR”) in streamlined proceedings (rather than in proceedings under section 240 of the Act), and to specify what standard of review applies in such streamlined proceedings. The Departments further propose changes to the regulations regarding asylum, statutory withholding of removal, and withholding and deferral of removal under the CAT regulations. The Departments also propose amendments related to the standards for adjudication of applications for asylum and statutory withholding.

DATES:

Written or electronic comments on the notice of proposed rulemaking must be submitted on or before July 15, 2020. Written comments postmarked on or before that date will be considered timely. The electronic Federal Docket Management System will accept comments prior to midnight eastern time at the end of that day. Comments specific to the proposed collection of information will be accepted until August 14, 2020. All such submissions received must include the OMB Control Number 1615-0067 in the body of the submission.

Note:

Comments received on the information collection that are intended as comments on the proposed rulemaking rather than those specific to the collection of information will be rejected.

ADDRESSES:

If you wish to provide comments regarding this rulemaking, you must submit comments, identified by the agency name and reference RIN 1125-AA94 or EOIR Docket No. 18-0002, by one of the two methods below.

•

Federal eRulemaking Portal: http://www.regulations.gov

. Follow the website instructions for submitting comments.

•

Mail:

Paper comments that duplicate an electronic submission are unnecessary. If you wish to submit a paper comment in lieu of electronic submission, please direct the mail/shipment to: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041. To ensure proper handling, please reference the agency name and RIN 1125-AA94 or EOIR Docket No. 18-0002 on your correspondence. Mailed items must be postmarked or otherwise indicate a shipping date on or before the submission deadline.

Collection of information.

You must submit comments on the collection of information discussed in this notice of proposed rulemaking to both the rulemaking docket and the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA). All such submissions received must include the OMB Control Number 1615-0067 in the body of the submission. OIRA submissions can be sent using any of the following methods.

•

Email (preferred): DHSDeskOfficer@omb.eop.gov

(include the docket number and “Attention: Desk Officer for U.S. Citizenship and Immigration Services, DHS” in the subject line of the email).

•

Fax:

202-395-6566.

•

Mail:

Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503; Attention: Desk Officer, U.S. Citizenship and Immigration Services, DHS.

FOR FURTHER INFORMATION CONTACT:

Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041, telephone (703) 305-0289 (not a toll-free call).

Maureen Dunn, Chief, Division of Humanitarian Affairs, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, 20 Massachusetts Ave. NW, Washington, DC 20529; telephone (202) 272-8377.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule via one of the methods and by the deadline stated above. All comments must be submitted in English, or accompanied by an English translation. The Departments also invite comments that relate to the economic, environmental, or federalism effects that might result from this rule. Comments that will provide the most assistance to the Departments in developing these procedures will reference a specific portion of the rule; explain the reason for any recommended change; and include data, information, or authority that support such recommended change.

Please note that all comments received are considered part of the public record and made available for public inspection at

http://www.regulations.gov

. Such information includes personally identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. If you want to submit personally identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFIABLE INFORMATION” in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must prominently identify the confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on

http://www.regulations.gov

Personally identifying information located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set

forth above will not be placed in the public docket file. The Departments may withhold from public viewing information provided in comments that they determine may affect the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of

http://www.regulations.gov

. To inspect the agency's public docket file in person, you must make an appointment with the agency. Please see the

For Further Information Contact

paragraph above for agency contact information.

II. Discussion

As a prefatory matter, the Departments note that portions of this rule, in accordance with well-established administrative law principles, would supersede certain interpretations of the immigration laws by federal courts of appeals: The Supreme Court has “also made clear that administrative agencies are not bound by prior judicial interpretations of ambiguous statutory interpretations, because there is `a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.' ”

Matter of R-A-,

24 I&N Dec. 629, 631 (A.G. 2008) (quoting

Nat'l Cable & Telecomms. Ass'n

Brand X Internet Servs.,

545 U.S. 967, 982 (2005) (internal quotation and citations omitted)). “A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to

Chevron

deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”

Brand X,

545 U.S. at 982.

Matter of A-B-,

27 I&N Dec. 316, 327 (A.G. 2018).

Since World War II, the United States has sought a comprehensive solution to the issues surrounding the admission of refugees into the country and the protection of refugees from return to persecution. As an expression of a nation's foreign policy, the laws and policies surrounding asylum are an assertion of a government's right and duty to protect its own resources and citizens, while aiding those in true need of protection from harm.

See, e.g., Kleindienst

Mandel,

408 U.S. 753, 765 (1972) (“In accord with ancient principles of the international law of nation-states, * * * the power to exclude aliens is inherent in sovereignty, [and] necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers * * * .” (internal citations and quotation marks omitted)).

In the Refugee Act of 1980 (“Refugee Act”), Public Law 96-212, 94 Stat. 102, Congress furthered implementation of the United Nations Protocol Relating to the Status of Refugees (“Refugee Protocol”), Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268, providing for a permanent procedure for the admission and protection of refugees, generally defined in domestic law as:

any person who is outside of any country of such person's nationality * * * and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Refugee Act, sec. 201(a), 94 Stat. at 102 (codified at section 101(a)(42) of the INA, 8 U.S.C. 1101(a)(42)). Those five grounds are the sole grounds for asylum and refugee status.

A. Expedited Removal and Screenings in the Credible Fear Process

1. Asylum-and-Withholding-Only Proceedings

for Aliens With Credible Fear

These proceedings have also been referred to as “asylum-only” proceedings in other contexts.

See, e.g., Matter of D-M-C-P-,

26 I&N Dec. 644, 645 (BIA 2015) (“The applicant expressed a fear of returning to Argentina, and on June 23, 2011, his case was referred to the Immigration Court for asylum-only proceedings * * * .”). This NPRM uses the phrase “asylum-and-withholding-only proceedings” to ensure that the forms of relief and protection available are more accurately described.

In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, div. C, 110 Stat. 3009, 3009-546 (“IIRIRA”), Congress established the expedited removal process, thus establishing two primary types of proceedings for determining the removability of an alien from the United States: (1) Expedited removal proceedings under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), and (2) removal proceedings under section 240 of the INA, 8 U.S.C. 1229a (“section 240 proceedings”).

First, section 235 of the INA, 8 U.S.C. 1225, contains the procedures for expedited removal. Under expedited removal, aliens arriving in the United States—and, in the discretion of the Secretary of Homeland Security (“Secretary”),

certain other designated classes of aliens

—who are found to be inadmissible under either section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C), regarding material misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7), regarding documentation requirements for admission, may be “removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section [208 of the INA, 8 U.S.C. 1158,] or a fear of persecution.” INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i).

Among other things, expedited removal is an administrative process that allows for the fair and efficient removal of aliens who have made no claims regarding asylum or a fear of return or, if they have, have not established a fear of persecution or torture, without requiring lengthy and resource-intensive removal proceedings in immigration court.

The Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135, as amended, charged the Secretary “with the administration and enforcement of this chapter [titled, `Immigration and Nationality'] and all other laws relating to the immigration and naturalization of aliens” and granted the Secretary the power to take all actions “necessary for carrying out” the provisions of the immigration and nationality laws.

See

HSA, sec. 1102, 116 Stat. at 2273-74; Consolidated Appropriations Resolution of 2003, Public Law 108-7, div. L, sec. 105, 117 Stat. 11, 531 (codified at INA 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3)). The HSA states that the Attorney General “shall have such authorities and functions under this chapter and all other laws relating to the immigration and naturalization of aliens as were [previously] exercised by [EOIR], or by the Attorney General with respect to [EOIR] * * * .” HSA, sec. 1102, 116 Stat. at 2274 (codified at INA 103(g)(1), 8 U.S.C. 1103(g)(1));

see

6 U.S.C. 521. Furthermore, the Attorney General is authorized to “establish such regulations, prescribe such forms of bonds, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.” HSA, sec. 1102, 116 Stat. at 2274 (codified at INA 103(g)(2), 8 U.S.C. 1103(g)(2)).

DHS has designated the following additional categories of aliens, if inadmissible under sections 212(a)(6)(C) or 212(a)(7) of the Act, 8 U.S.C. 1182(a)(6)(C) or 1182(a)(7), as subject to expedited removal: (1) Aliens who are apprehended in the United States within 100 air miles of the border, who have not been admitted or paroled, and who cannot affirmatively show that they have been continuously physically present in the United States for the 14-day period prior to apprehension,

see

Designating Aliens For Expedited Removal, 69 FR 48877 (Aug. 11, 2004); and (2) aliens who arrived in the United States between ports of entry by sea, who have not been admitted or paroled, and who cannot affirmatively show that they have been continuously physically present in the United States for the two-year period prior to the determination of inadmissibility,

see

Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 FR 68924 (Nov. 13, 2002). On July 23, 2019, DHS announced it would expand the application of expedited removal to aliens (not included in the additional categories established in 2002 and 2004) who are inadmissible under sections 212(a)(6)(C) or 212(a)(7) of the Act, 8 U.S.C. 1182(a)(6)(C) or 1182(a)(7), who are apprehended anywhere in the United States, who have not been admitted or paroled, and who cannot affirmatively show that they have been continuously physically present for the two-year period prior to the determination of inadmissibility.

See

Designating Aliens for Expedited Removal, 84 FR 35409 (July 23, 2019). The U.S. District Court for the District of Columbia issued an injunction against the July 2019 designation.

Make the Road New York

McAleenan,

405 F. Supp. 3d 1 (D.D.C. 2019).

Unaccompanied alien children, as defined in 6 U.S.C. 279(g)(2), are exempt from expedited removal.

See

8 U.S.C. 1232(a)(5)(D)(i).

Pursuant to statute and regulations, DHS implements a screening process,

known as “credible fear” screening, to identify potentially valid claims for asylum, statutory withholding of removal, and protection under the regulations issued pursuant to the legislation implementing CAT, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 113,

to prevent aliens placed in expedited removal from being removed to a country in which they would face persecution or torture.

Currently, any alien who expresses a fear of persecution or torture, a fear of return, or an intention to apply for asylum during the course of the expedited removal process is referred to a DHS asylum officer for an interview to determine if the alien has a credible fear of persecution or torture in the country of return. INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B);

see also

8 CFR 235.3(b)(4), 1235.3(b)(4)(i). If the asylum officer determines that the alien does not have a credible fear of persecution or torture (or, in certain instances, a reasonable possibility of persecution or torture), the alien may request that an immigration judge review that determination.

See

INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 1208.30(g).

Because CAT is a non-self-executing treaty,

see, e.g., Hui Zheng

Holder,

562 F.3d 647, 655-56 (4th Cir. 2009), adjudicators do not apply CAT itself, but rather the regulations issued pursuant to the implementing legislation, principally 8 CFR 1208.16(c)-1208.18.

See

Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Public Law 105-277, sec. 2242(b), 112 Stat. 2681, 2681-822 (codified at 8 U.S.C. 1231 note).

Screening for fear of torture in the designated country of removal is conducted not under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), but instead under the CAT regulations.

Under the current regulatory framework, if the asylum officer determines that an alien subject to expedited removal proceedings has a credible fear of persecution or torture (or, in certain instances, a reasonable possibility of persecution or torture), DHS places the alien before an immigration court for adjudication of the alien's claims by initiating section 240 proceedings.

See

8 CFR 208.30(f), 235.6(a)(1)(ii), 1235.6(a)(1)(i). Section 240 proceedings are often more detailed and provide additional procedural protections, including greater administrative and judicial review, than expedited removal proceedings under section 235 of the Act.

Compare

INA 235(b)(1), 8 U.S.C. 1225(b)(1),

with

INA 240, 8 U.S.C. 1229a. Similarly, if an immigration judge, upon review of the asylum officer's negative determination, finds that the alien possesses a credible fear of persecution or torture (or, in certain instances, a reasonable possibility of persecution or torture), the immigration judge will vacate the expedited removal order, and DHS will initiate section 240 proceedings for the alien. 8 CFR 1208.30(g)(2)(iv)(B).

The INA, however, instructs only that an alien who is found to have a credible fear “shall be detained for further consideration of the application for asylum,” and neither mandates that an alien who demonstrates a credible fear be placed in removal proceedings in general nor in section 240 proceedings specifically. INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii).

The relevant regulations regarding the credible fear process, and the interplay between expedited removal and section 240 proceedings, were first implemented in 1997. Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10312 (Mar. 6, 1997).

At the time, the former Immigration and Naturalization Service (“INS”) explained that it was choosing to initiate section 240 proceedings in this context because the remaining provisions of section 235(b) of the Act, beyond those governing credible fear review, were specific to aliens who do not have a credible fear and because the statute was silent as to procedures for those who demonstrated such a fear.

Id.

at 10320. The INS's analysis at the time was very limited.

The 1997 rule amended, inter alia, part 208 of title 8 of the CFR. Following the creation of DHS in 2003 after the passage of the HSA, EOIR's regulations were moved from Chapter I of Title 8 to Chapter V. Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 FR 9824 (Feb. 28, 2003). Part 208 was subsequently duplicated for EOIR at part 1208.

Id.

For several reasons, the Departments believe that section 235(b)(1), 8 U.S.C. 1225(b)(1), when compared with section 235(b)(2), 8 U.S.C. 1225(b)(2), may also be read as permitting a procedure for “further consideration of [an] application for asylum” that is separate from section 240 proceedings. First, while section 235(b)(1), 8 U.S.C. 1225(b)(1), mandates that an alien with a positive credible fear determination receive “further consideration of [his or her] application for asylum,” section 235(b)(2), 8 U.S.C. 1225(b)(2), mandates that other classes of aliens receive “a proceeding under section 1229a of this title”—

i.e.,

section 240 of the INA, 8 U.S.C. 1229a.

Compare

INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii),

with

INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A). The difference in language suggests that section 235(b)(1), 8 U.S.C. 1225(b)(1), does not require use of section 240 proceedings, in contrast to section 235(b)(2), 8 U.S.C. 1225(b)(2), which does so require.

See Henson

Santander Consumer USA, Inc.,

137 S. Ct. 1718, 1723 (2017) (“differences in language [generally] convey differences in meaning”). That negative inference is reinforced by the fact that aliens in expedited removal are expressly excluded from the class of aliens entitled to section 240 proceedings under section 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A).

See

INA 235(b)(2)(B)(ii), 8 U.S.C. 1225(b)(2)(B)(ii).

Second, an alien with a positive credible fear determination is entitled only to a further proceeding related to his or her “application for asylum.” INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). An asylum application's purpose is to determine whether the alien is entitled to relief or protection from removal, not whether the alien should be admitted or is otherwise entitled to immigration benefits.

See Matter of V-X-,

26 I&N Dec. 147, 150 (BIA 2013) (holding that, “although [an alien's] grant of asylum confer[s] a lawful status upon him, it [does] not entail an `admission'”). By contrast, in section 240 proceedings, aliens generally may raise their admissibility and their entitlement to various forms of relief or protection.

Compare

INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii),

with

INA 240(c)(2)-(4), 8 U.S.C. 1229a(c)(2)-(4).

Moreover, the Departments believe, for the reasons described in this rule, that it is better policy to place aliens with a positive credible fear determination in asylum-and-withholding-only proceedings rather than section 240 proceedings.

DHS has prosecutorial discretion at the outset to place an alien amenable to expedited removal instead in section 240 proceedings.

See Matter of J-A-B- & I-J-V-A-,

27 I&N Dec. 168, 170 (BIA 2017) (“The DHS's decision to commence removal proceedings involves the exercise of prosecutorial discretion, and neither the Immigration Judges nor the Board may review a decision by the DHS to forgo expedited removal proceedings or initiate removal proceedings in a particular case.”);

Matter of E-R-M- & L-R-M-,

25 I&N Dec. 520, 523 (BIA 2011). If DHS has exercised its discretion by initially commencing expedited removal proceedings against an alien, placing that alien in section 240 proceedings following the establishment of a credible fear effectively negates DHS's original discretionary decision. By deciding that the alien was amenable to expedited removal, DHS already determined removability, leaving only a determination as to whether the

individual is eligible for relief or entitled to protection from removal in the form of asylum, statutory withholding of removal, or protection under the CAT regulations. Further, it is evident that Congress intended the expedited removal process to be streamlined, efficient, and truly “expedited” based on the statutory limits it placed on administrative review of expedited removal orders, INA 235(b)(1)(C), 8 U.S.C. 1225(b)(1)(C); the temporal limits it placed on review of negative credible fear determinations by immigration judges, INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); and the limitations placed on judicial review of determinations made during the expedited removal process, INA 242(e), 8 U.S.C. 1252(e). The current policy of referring aliens who have established a credible fear for section 240 proceedings runs counter to those legislative aims.

Matter of X-K-,

23 I&N Dec. 731 (BIA 2005)—which the Attorney General recently overruled in

Matter of M-S-,

27 I&N Dec. 509 (A.G. 2019)—the Board of Immigration Appeals noted in dicta that although the INA “does not require that such aliens be placed in full section 240 removal proceedings * * *, there is legislative history suggesting that this comports with the intent of Congress.” 23 I&N Dec. at 734 (citing H.R. Rep. No. 104-828, at 209 (1996) (Conf. Rep.) (“If the officer finds that the alien has a credible fear of persecution, the alien shall be detained for further consideration of the application for asylum under normal non-expedited removal proceedings.”). Although the notation in the House Conference Report may be read as supporting an interpretation of section 235(b) that allows for the current policy, the statute certainly does not compel the current policy. Indeed, we presume that Congress speaks most directly through its adopted statutory language, and, as explained above, that language actually clearly permits the use of asylum-and-withholding-only proceedings, rather than section 240 proceedings.

Accordingly, DOJ proposes to amend 8 CFR 1003.1, 8 CFR 1003.42(f), 8 CFR 1208.2, 8 CFR 1208.30, and 8 CFR 1235.6—and DHS proposes to amend 8 CFR 208.2(c), 8 CFR 208.30(e)(5) and (f), and 8 CFR 235.6(a)(1)—so that aliens who establish a credible fear of persecution, a reasonable possibility of persecution, or a reasonable possibility of torture and accordingly receive a positive fear determination will appear before an immigration judge for “asylum-and-withholding-only” proceedings under 8 CFR 208.2(c)(1) and 8 CFR 1208.2(c)(1).

Such proceedings will be adjudicated in the same manner that currently applies to certain alien crewmembers, stowaways, and applicants for admission under the Visa Waiver Program, among other categories of aliens who are not entitled by statute to section 240 proceedings.

See

8 CFR 208.2(c)(1)(i)-(viii), 1208.2(c)(1)(i)-(viii). Additionally, to ensure that these claims receive the most expeditious consideration reasonably possible, the Departments propose to amend 8 CFR 208.5 and 8 CFR 1208.5 to require DHS to make available appropriate applications and relevant warnings to aliens in its custody who have expressed a fear in the expedited removal process and received a positive determination.

Under existing regulations, in proceedings under 8 CFR 208.2(c)(1) and 8 CFR 1208.2(c)(1), aliens may pursue not only claims for asylum, but also claims for “withholding or deferral of removal”—which encompasses both statutory withholding of removal, and withholding and deferral of removal under the CAT regulations. 8 CFR 208.2(c)(3)(i), 1208.2(c)(3)(i). This rule makes no change to that aspect of the existing regulations.

These “asylum-and-withholding-only” proceedings generally follow the same rules of procedure that apply in section 240 proceedings, but the immigration judge's consideration is limited solely to a determination on the alien's eligibility for asylum, statutory withholding of removal, and withholding or deferral of removal under the CAT regulations (and, if the alien is eligible for asylum, whether he or she should receive it as a matter of discretion). 8 CFR 208.2(c)(3)(i), 1208.2(c)(3)(i). If the immigration judge does not grant the alien asylum, statutory withholding of removal, or protection under the CAT regulations, the alien will be removed, although the alien may submit an appeal of a denied application for asylum, statutory withholding of removal, or protection under the CAT regulations to the Board of Immigration Appeals (“BIA”).

DOJ proposes a technical correction to 8 CFR 1003.1(b), which establishes the jurisdiction of the BIA, to correct the reference to 8 CFR 1208.2 in paragraph (b)(9) and ensure that the regulations accurately authorize BIA review in “asylum-and-withholding-only” proceedings. EOIR and the INS amended 8 CFR part 208 in 1997 following the enactment of IIRIRA. Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 444 (Jan. 3, 1997). Two of the many changes made at the time were (1) amending 8 CFR 208.2(b) to set out immigration judges' jurisdiction over asylum applications filed by aliens not entitled to proceedings under section 240 of the INA, 8 U.S.C. 1229a, and aliens who have been served, among other charging documents, a Notice to Appear; and (2) amending 8 CFR 3.1(b)(9) to specifically state that the BIA has jurisdiction over asylum applications described at 8 CFR 208.2(b). Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR at 455, 462. In 2000, EOIR and the INS redesignated then-existing 8 CFR 208.2(b) into separate paragraphs 8 CFR 208.2(b) (regarding immigration judges' jurisdiction over aliens served, among other charging documents, a Notice to Appear) and 8 CFR 208.2(c) (regarding immigration judges' jurisdiction over asylum applications filed by aliens not entitled to removal proceedings under section 240 of the INA). Asylum Procedures, 65 FR 76121, 76122 (Dec. 6, 2000). EOIR and the INS, however, failed to make a corresponding update to 8 CFR 3.1(b)(9) to account for the change to the cross-referenced paragraph 8 CFR 208.2(b). There is no indication that the Departments intended to remove appeals from “asylum-and-withholding-only” proceedings from the BIA's jurisdiction. In 2003, following the creation of DHS, EOIR's regulations were transferred from chapter I to chapter V of 8 CFR and redesignated. Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 FR 9824, 9830, 9834 (Feb. 28, 2003). Since EOIR and the INS amended 8 CFR 208.2(b) in 2000, the BIA has continued to exercise jurisdiction over appeals from asylum-and-withholding-only proceedings.

See, e.g., Kanacevic

I.N.S.,

448 F.3d 129, 133 (2d Cir. 2006) (noting that the BIA summarily affirmed an immigration judge's decision in a proceeding under 8 CFR 208.2(c)(iii));

Matter of D-M-C-P-,

26 I&N Dec. at 647 (holding that neither an immigration judge nor the BIA has jurisdiction to consider whether asylum-and-withholding-only proceedings were improvidently instituted). Accordingly, the Departments are now correcting the reference at 8 CFR 1003.1(b)(9) to prevent ambiguity regarding the BIA's jurisdiction over appeals from immigration judges' decisions in proceedings under 8 CFR 1208.2(c), including decisions in “asylum-and-withholding-only” proceedings involving aliens found to have a credible fear of persecution or reasonable possibility of persecution or torture under the proposed rule.

2. Consideration of Precedent When Making Credible Fear Determinations in the “Credible Fear” Process

DOJ proposes to add language to 8 CFR 1003.42(f) to specify that an immigration judge will consider applicable legal precedent when reviewing a negative fear determination. This instruction is in addition to those currently in 8 CFR 1003.42 to consider the credibility of the alien's statements and other facts of which the immigration judge is aware. These changes codify in the regulations the current practice and provide a clear requirement to immigration judges that they must consider and apply all applicable law, including administrative precedent from the BIA, decisions of the Attorney General, decisions of the federal courts of appeals binding in the jurisdiction where the immigration judge conducting the review sits, and decisions of the Supreme Court.

3. Remove and Reserve DHS-Specific Procedures From DOJ Regulations

The Department of Justice proposes to remove and reserve 8 CFR 1235.1, 8 CFR 1235.2, 8 CFR 1235.3, and 8 CFR 1235.5. When the Department first incorporated part 235 into 1235, it stated that “nearly all of the provisions * * * affect bond hearings before immigration judges.” Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 FR 9824, 9826 (Feb. 28, 2003). Upon further review, the Department has determined that these sections regard procedures that are specific to DHS's examinations of applicants for admission as set forth in 8 CFR 235.1, 8 CFR 235.2, 8 CFR 235.3, and 8 CFR 235.5, and do not need to be duplicated

in the regulations for EOIR in Chapter V, except for the provisions in 8 CFR 1235.4 relating to the withdrawal of an application for admission and 8 CFR 1235.6 relating to the referral of cases to an immigration judge.

4. Reasonable Possibility as the Standard of Proof for Statutory Withholding of Removal and Torture-Related Fear Determinations for Aliens in Expedited Removal Proceedings and Stowaways

This rule also proposes clarifying and raising the statutory withholding of removal screening standard and the torture-related screening standard under the CAT regulations for stowaways and aliens in expedited removal.

Currently, fear screenings for aliens in expedited removal proceedings and stowaways generally involve considering whether there is a significant possibility that the alien can establish, in a hearing on the merits, eligibility for asylum, statutory withholding of removal, or withholding or deferral of removal under the CAT regulations.

See

8 CFR 208.30(e)(2)-(3). Screening for protection under statutory withholding of removal generally involves considering whether there is a significant possibility that the alien could establish in a hearing that it is more likely than not that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion, if removed to the proposed country of removal.

See

8 CFR 208.16(b), 208.30(e)(2), 1208.16(b). Currently, screening for protection under the CAT regulations generally involves considering whether the alien can establish that there is a significant possibility that he or she could establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.

See

8 CFR 208.16(c), 208.30(e)(3), 1208.16(c). The “significant possibility” standard has been interpreted by DHS as requiring that the alien “demonstrate a substantial and realistic possibility of succeeding” in immigration court.

See

Memorandum from John Lafferty, Chief, Asylum Div., U.S. Citizenship and Immigration Servs.,

Release of Updated Asylum Division Officer Training Course (ADOTC) Lesson Plan, Credible Fear of Persecution and Torture Determinations

2 (Feb. 28, 2014);

see also

FARRA, 112 Stat. at 2681-822; INA 103(a)(1), 8 U.S.C. 1103(a)(1) (“The Secretary of Homeland Security shall be charged with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens * * * .”); INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) (“The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section * * * .”); INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); Regulations Concerning the Convention Against Torture, 64 FR 8478, 8478 (Feb. 19, 1999), as corrected by Regulations Concerning the Convention Against Torture, 64 FR 13881 (Mar. 23, 1999) (“Under Article 3 [of CAT], the United States had agreed not to `expel, return (`refouler') or extradite' a person to another state where he or she would be tortured * * * . The United States currently implements Article 33 of the Refugee Convention through the withholding of removal provision in section 241(b)(3) * * * of the [INA] * * * .”). FARRA provides that “the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3” of CAT, “subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of [CAT].” FARRA, sec. 2242(b), 112 Stat. at 2681-822.

Recently, DHS began to apply the “reasonable possibility” standard of proof to determinations regarding potential eligibility for statutory withholding of removal and protection under the CAT regulations in “credible fear” screenings for aliens in expedited removal proceedings where an alien is found barred from asylum pursuant to 8 CFR 208.13(c)(3)-(4). On November 9, 2018, the Departments issued an Interim Final Rule (“IFR”) to provide that certain aliens described in 8 CFR 208.13(c)(3) or 8 CFR 1208.13(c)(3) who entered the United States in contravention of a covered Presidential proclamation or order are barred from eligibility for asylum (hereinafter referred to as the “Presidential Proclamation Asylum Bar IFR”). Under that rule, claims for statutory withholding and protection under the CAT regulations are analyzed under this “reasonable possibility” standard.

See

Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 FR 55934 (Nov. 9, 2018).

In addition, on

July 16, 2019, the Departments issued an IFR providing that certain aliens described in 8 CFR 208.13(c)(4) or 8 CFR 1208.13(c)(4) who enter, attempt to enter, or arrive in the United States across the southern land border on or after such date, after transiting through at least one country outside the alien's country of citizenship, nationality, or last lawful habitual residence en route to the United States, will be found ineligible for asylum unless they qualify for certain exceptions (hereinafter referred to as the “Third Country Transit Asylum Bar IFR”).

See

Asylum Eligibility and Procedural Modifications, 84 FR 33829 (July 16, 2019). That IFR provides that if an alien is found ineligible for asylum pursuant to the bar, asylum officers will similarly apply the “reasonable possibility” standard to any statutory withholding of removal or CAT regulation claims in the “credible fear” screening context.

See id.

at 33837.

On December 19, 2018, the U.S. District Court for the Northern District of California enjoined the Departments “from taking any action continuing to implement the Rule” and ordered the Departments “to return to the pre-Rule practices for processing asylum applications.”

E. Bay Sanctuary Covenant

Trump,

354 F. Supp. 3d 1094, 1121 (N.D. Cal. 2018). On February 28, 2020, the U.S. Court of Appeals for the Ninth Circuit affirmed the

injunction.

E. Bay Sanctuary Covenant

Trump,

950 F.3d 1242, 1284 (9th Cir. 2020). The Departments in this rule do not propose to make any amendments that would implement the rule at issue in

East Bay Sanctuary.

On July 24, 2019, the U.S. District Court for the Northern District of California enjoined the Departments “from taking any action continuing to implement the Rule” and ordered the Departments “to return to the pre-Rule practices for processing asylum applications.”

E. Bay Sanctuary Covenant

Barr,

385 F. Supp. 3d 922, 960 (N.D. Cal. 2019). On August 16, 2019, the U.S. Court of Appeals for the Ninth Circuit issued a partial stay of the preliminary injunction so that the injunction remained in force only in the Ninth Circuit.

E. Bay Sanctuary Covenant

Barr,

934 F.3d 1026, 1028 (9th Cir. 2019). On September 9, 2019, the district court then reinstated the nationwide scope of the injunction. 391 F.Supp.3d 974. Two days later, the Supreme Court stayed the district court's injunction.

Barr

East Bay Sanctuary Covenant,

140 S. Ct. 3 (2019). The Departments do not propose to make any amendments in this rule that would modify the substance of the rule at issue in that litigation.

This proposed rule would expand the Departments' application of the “reasonable possibility” standard of proof. Specifically, the standard of proof in the “credible fear” screening process for statutory withholding of removal and protection under the CAT regulations would be raised from a significant possibility that the alien can establish eligibility for such relief or protection to a reasonable possibility that the alien would be persecuted or tortured.

See

8 CFR 208.16, 208.30(e)(2), 1208.16;

see also

8 CFR 208.30(e)(3) (currently employing a “significant possibility” standard), 8 CFR 208.18(a) and 1208.18(a) (defining torture). For aliens expressing a fear of persecution, the standard of proof in the screening remains unchanged regarding asylum eligibility,

i.e.,

a significant possibility that the alien could establish eligibility for asylum.

See

INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v).

Under this rule, during “credible fear” screening interviews,

asylum officers would consider whether aliens could establish a credible fear of persecution, a reasonable possibility of persecution, or a reasonable possibility of torture. Assessing a “credible fear of persecution” for purposes of asylum claims would continue to involve considering whether there is a significant possibility that the alien could establish eligibility for asylum under section 208 of the INA, 8 U.S.C. 1158, as is currently provided in the regulations.

See

8 CFR 208.30(e)(2). However, under the proposed regulations, assessing a “reasonable possibility of persecution” would involve considering whether there is a reasonable possibility that the alien would be persecuted such that the alien should be referred to a hearing in immigration court to adjudicate eligibility for statutory withholding of removal.

See

8 CFR 208.16(b), 1208.16(b).

The Departments recognize that, as a linguistic matter, it may seem strange to refer to a proceeding in which a reasonable possibility standard is applied as a “credible fear” screening. But the Departments have elected to retain the “credible fear” nomenclature because the relevant statutory provision is titled “removal without further review if no credible fear of persecution,” INA 235(b)(1)(B)(iii), 8 U.S.C. 1225(b)(1)(B)(iii), and for continuity and for ease of distinguishing proceedings conducted under 8 CFR 208.30 from those conducted under 8 CFR 208.31. Moreover, this change is consistent with the Departments' IFR in 2018 that employed a reasonable possibility standard in the context of a credible fear screening for aliens subject to certain Presidential proclamations.

See

Presidential Proclamation Asylum Bar IFR, 83 FR at 55943.

Meanwhile, under this proposed rule, assessing a reasonable possibility of torture would involve considering whether there is a reasonable possibility that the alien would be tortured such that the alien should be referred for a hearing in immigration court to adjudicate potential eligibility for protection under the CAT regulations.

See

8 CFR 208.16(c), 1208.16(c). Consistent with existing regulations, if the alien is referred to immigration court after receiving a positive fear determination, the immigration judge applies a “more likely than not” standard to the claims for statutory withholding of removal and protection under the CAT regulations.

See

8 CFR 1208.16-1208.17.

To be eligible for asylum under section 208 of the INA, 8 U.S.C. 1158, an alien must ultimately prove a “reasonable possibility” of persecution upon return to his or her country.

See, e.g., Y.C.

Holder,

741 F.3d 324, 332 (2d Cir. 2013);

see also

8 CFR 208.13(b)(2)(i)(B), 1208.13(b)(2)(i)(B). On the other hand, to be eligible for either statutory withholding of removal or protection under the CAT regulations, an alien must ultimately prove a “clear probability” of the relevant type of harm—

i.e.,

that the harm is more likely than not to occur—upon return to his or her country.

See Y.C.,

741 F.3d at 333; 8 CFR 208.16(b)(2) and (c)(2), 1208.16(b)(2) and (c)(2);

see also

INA 238(b)(5), 8 U.S.C. 1228(b)(5); INA 241(a)(5), 8 U.S.C. 1231(a)(5). “This * * * screening process is modeled on the credible-fear screening process, but requires the alien to meet a higher screening standard.” Regulations Concerning the Convention Against Torture, 64 FR at 8485;

see also

INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III) (“The Attorney General shall provide by regulation and upon the alien's request for prompt review by an immigration judge of a determination * * * that the alien does not have a credible fear of persecution.”).

The bars to asylum eligibility are not identical to the bars to statutory withholding eligibility.

Compare

8 U.S.C. 1158(b)(2)(A)(i)-(vi) (bars to asylum eligibility),

with

8 U.S.C. 1231(b)(3)(B)(i)-(iv) (bars to withholding of removal eligibility). Under the proposed regulations, an alien who is barred from asylum eligibility could be found to have a reasonable possibility of persecution in instances in which the alien is barred from asylum, but not likewise barred from statutory withholding. For instance, if an alien is subject to the firm resettlement bar, the alien is barred from asylum eligibility, but not barred from statutory withholding eligibility. In such a case, if the alien demonstrated a reasonable possibility of persecution, the alien would be referred to the immigration judge for asylum-and-withholding-only proceedings. The proposed rule would ensure that if an alien has established a significant possibility of eligibility for asylum or a reasonable possibility of persecution and is not barred from statutory withholding eligibility, the alien can appear before an immigration judge for consideration of the asylum, statutory withholding, and CAT claims. Moreover, this process would retain a mechanism for immigration judge review of the determination that the alien is not eligible for asylum, as required in section 235(b)(1)(B)(iii) of the Act, 8 U.S.C. 1225(b)(1)(B)(iii). Thus, the proposed rule would reasonably balance the various interests at stake. It would promote efficiency by avoiding duplicative administrative efforts while ensuring that those who are subject to a mandatory bar receive an opportunity to have the asylum officer's finding reviewed by an immigration judge.

Additionally, under 8 CFR 208.30(e)(5), DHS currently uses (or potentially would use, pending the resolution of litigation), a “reasonable fear” standard (identical to the “reasonable possibility” standard enunciated in this rule) in procedures related to aliens barred from asylum under the two previously mentioned IFRs, as described in 8 CFR 208.13(c)(3)-(4). The Departments seek to make technical edits in proposed 8 CFR 208.30(e)(5), to change “reasonable fear” to “reasonable possibility” to align the terminology with the proposed changes in this rule. Similarly, DOJ proposes to make technical edits in 8 CFR 1208.30(g)(1) and 8 CFR 1003.42(d)—both of which refer to the “reasonable fear” standard in the current version of 8 CFR 208.30(e)(5)—to change the “reasonable fear” language to “reasonable possibility.” These edits are purely technical and would not amend, alter, or impact the standard of proof applicable to the fear screening process and determinations, or review of such determinations, associated with the aforementioned bars.

Additionally, in proposed 8 CFR 208.2(c)(1), 8 CFR 1208.2(c)(1), 8 CFR 235.6(a)(2), and 8 CFR 1235.6(a)(2), the Departments are making technical edits to replace the term “credible fear of persecution or torture” with “a credible fear of persecution, reasonable possibility of persecution, or reasonable possibility of torture” to mirror the terminology used in proposed 8 CFR 208.30 and 8 CFR 1208.30. Moreover, in proposed 8 CFR 1208.30(g)(2)(iv)(C), DOJ is making a technical edit to clarify that stowaways barred from asylum and both statutory and CAT withholding of removal may still be eligible for deferral of removal under the CAT regulations.

The Departments further propose to amend 8 CFR 208.30(g) and 8 CFR 1208.30(g)(2), which address procedures for negative fear determinations for aliens in the expedited removal process. Currently, 8 CFR 208.30(g) provides that when an alien receives notice of a negative determination, the asylum officer inquires whether the alien wishes to have an immigration judge review the decision. If that alien refuses to indicate whether he or she desires such review, DHS treats this as a request for review by an immigration judge.

see also

INA 208(b)(1)(A) and 241(b)(3)(A), 8 U.S.C. 1158(b)(1)(A) and 1231(b)(3)(A). Congress, however, has not defined the phrase

“membership in a particular social group.” Nor is the term defined in the United Nations Convention Relating to the Status of Refugees (“Refugee Convention”), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150, or the related Refugee Protocol. Further, the term lacks the benefit of clear legislative intent.

See Fatin

INS,

12 F.3d 1233, 1239 (3d Cir. 1993) (Alito, J.) (“Thus, neither the legislative history of the relevant United States statutes nor the negotiating history of the pertinent international agreements sheds much light on the meaning of the phrase `particular social group.' ”);

cf. Matter of Acosta,

19 I&N Dec. 211, 232 (BIA 1985) (“Congress did not indicate what it understood this ground of persecution to mean, nor is its meaning clear in the Protocol”),

overruled on other grounds by Matter of Mogharrabi,

19 I&N Dec. 439 (BIA 1987).

When Congress passed the Refugee Act of 1980, further implementing U.S. obligations under the Refugee Protocol, it included “membership in a particular social group” in its definition of “refugee” at section 101(a)(42) of the INA, 8 U.S.C. 1101(a)(42). Just a few years later, the BIA established that a particular social group is “a group of persons all of whom share a common, immutable characteristic,” and that the characteristic “either is beyond the power of an individual to change or that it is so fundamental to his identity or conscience that it ought not be required to be changed.”

Matter of Acosta,

19 I&N Dec. at 233-34.

Although the Board did not significantly refine the formulation further until years later,

see, e.g., Matter of C-A-,

23 I&N Dec. 951, 956, 959-60 (BIA 2006), it routinely issued decisions delineating which groups did and did not qualify as particular social groups in the context of the relevant societies for purposes of asylum protection,

see, e.g., Matter of H-,

21 I&N Dec. 337, 342-43 (BIA 1996) (membership in a Somali subclan may constitute membership in a particular social group);

Matter of Toboso-Alfonso,

20 I&N Dec. 819, 822-23 (BIA 1990) (designated for publication by the Attorney General in 1994) (homosexuals in Cuba may constitute a particular social group).

Starting in the late 2000s, the BIA began to build on the

Acosta

definition in a series of cases, and subsequently settled on a three-part test for a particular social group, holding that the group must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”

Matter of M-E-V-G-,

26 I&N Dec. at 237;