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

Federal RegisterDec 11, 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. 18-0102; A.G. Order No. 4922-2020]

RIN 1125-AA94

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

AGENCY:

Department of Homeland Security; Executive Office for Immigration Review, Department of Justice.

ACTION:

Final rule.

SUMMARY:

On June 15, 2020, the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) (collectively “the Departments”) published a notice of proposed rulemaking (“NPRM” or “proposed rule”) that would amend the regulations governing credible fear determinations. The proposed rule would make it so that individuals found to have a credible fear will have their claims for asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (“INA” or “the Act”) (“statutory withholding of removal”), or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), adjudicated by an immigration judge within the Executive Office for Immigration Review (“EOIR”) in streamlined proceedings (rather than under section 240 of the Act), and to specify what standard of review applies in such streamlined proceedings. The Departments further proposed changes to the regulations regarding asylum, statutory withholding of removal, and withholding and deferral of removal under the Convention Against Torture (“CAT”) regulations. The Departments also proposed amendments related to the standards for adjudication of applications for asylum and statutory withholding. This final rule (“rule” or “final rule”) responds to comments received in response to the NPRM and generally adopts the NPRM with few substantive changes.

DATES:

This rule is effective on January 11, 2021.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Executive Summary of the Final Rule

On June 15, 2020, the Departments published an NPRM that would amend the regulations governing credible fear determinations to establish streamlined proceedings under a clarified standard of review. Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 36264 (June 15, 2020). The proposed rule would also amend regulations regarding asylum, statutory withholding of removal, and withholding and deferral of removal under the regulations.

Id.

The following discussion describes the provisions of the final rule, which is substantially the same as the NPRM, and summarizes the changes made in the final rule.

A. Authority and Legal Framework

The Departments are publishing this final rule pursuant to their respective authorities under the Immigration and Nationality Act (“INA”) as amended by the Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135.

The INA, as amended by the HSA, charges the Secretary “with the administration and enforcement of this chapter [titled “Immigration and Nationality”] and all other laws relating to the immigration and naturalization of aliens” and granted the Secretary the power to take all actions “necessary for carrying out” the provisions of the immigration and nationality laws. INA 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3);

See

HSA, sec. 1102, 116 Stat. at 2273-74; Consolidated Appropriations Resolution of 2003, Public Law 108-7, sec. 105, 117 Stat. 11, 531.

The HSA charges the Attorney General with “such authorities and functions under this chapter and all other laws relating to the immigration and naturalization of aliens as were [previously] exercised by [EOIR], or by the Attorney General with respect to [EOIR] . . . .” INA 103(g)(1), 8 U.S.C. 1103(g)(1);

see

6 U.S.C. 521; HSA, sec. 1102, 116 Stat. at 2274.

Furthermore, the Attorney General is authorized to “establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.” INA 103(g)(2), 8 U.S.C. 1103(g)(2); HSA, sec. 1102, 116 Stat. 2135, 2274.

B. Changes in the Final Rule

Through the NPRM, the Departments sought to satisfy a basic tenet of asylum law: To assert a “government's right and duty to protect its own resources and citizens, while aiding those in true need of protection from harm.” 85 FR at 36265 (citations omitted). To achieve this dual aim, the Departments proposed numerous amendments to the DHS and DOJ regulations.

After carefully reviewing all of the comments received on the NPRM, the Departments are making the following changes to the final rule.

In addition to the amendments outlined in more detail herein, the Departments also proposed additional minor amendments for clarity, such as replacing references to the former Immigration and Naturalization Service with references to DHS where appropriate (

see, e.g.,

8 CFR 208.13(b)(3)(ii)) or replacing forms listed by form number with the form's name (

see, e.g.,

8 CFR 1003.42(e)). The Departments also further reiterate the full explanation and justifications for the proposed changes set out in the preamble to the NPRM. 85 FR at 36265-88.

This final rule makes thirteen non-substantive changes to the regulatory provisions in the proposed rule, some of which were noted by commenters. First, the final rule corrects a typographical error—

i.e.

“part” rather than “party”—in 8 CFR 208.30(e)(2)(ii), which was proposed to read, “Such other facts as are known to the officer, including whether the alien could avoid a future threat to his or her life or freedom by relocating to another

party

of the proposed country of removal and, under all circumstances, it would be reasonable to expect the applicant to do so” (emphasis added). Second, the Departments added the word “for” to correct the form name “Application for Asylum and for Withholding of Removal” at 8 CFR 208.31(g)(2), 1208.30(g)(2)(iv)(B), and 1208.31(g)(2). Third, the Departments are replacing the word “essential” with the word “material” in 8 CFR 208.20(c)(1) and 1208.20(c)(1), consistent with the stated intent of the NPRM.

Fourth, the Departments are making stylistic revisions to 8 CFR 208.15(a)(1) and 1208.15(a)(1), including breaking them into three subparagraphs, to make them easier to follow and to reduce the risk of confusion. Fifth, the Departments

are editing the temporal language in 8 CFR 208.15(a)(3)(i) and (ii) and 1208.15(a)(3)(i) for clarity and consistency with similar language in 8 CFR 208.15(a)(2) and 1208.15(a)(2). The edited language clarifies the relevant temporal scope to read “after departing his country of nationality or last habitual residence and prior to arrival in or entry into the United States” in lieu of the language in the NPRM. Sixth, the Departments are striking the parenthetical phrase “(“rogue official”)” in 8 CFR 208.18(a)(1) and 1208.18(a)(1). Relatedly, they are replacing the remaining uses of the phrase “rogue official” in 8 CFR 208.16(b)(3)(iv), 208.18(a)(1), and 1208.18(a)(1) with its definition, “public official who is not acting under color of law.”

Seventh, the Departments are adding the clarifying phrase “as defined in section 212(a)(9)(B)(ii) and (iii) of the Act” to 8 CFR 208.13(d)(2)(i)(D) and 1208.13(d)(2)(i)(D) consistent with the intent of the NPRM. Eighth, the Departments are clarifying the language in 8 CFR 208.1(g) and 1208.1(g) to alleviate apparent confusion and improve consistency with the intent of the NPRM regarding the use of stereotypes as evidence for an asylum claim. A bald statement that a country or its denizens have a particular cultural trait that causes citizens, nationals, or residents of that country to engage in persecution is evidence lacking in probative value and has no place in an adjudication.

The NPRM did not use the term “rogue official” in 8 CFR 1208.16(b)(3)(iv); rather it referred to “officials acting outside their official capacity.” The discrepancy regarding this phrasing between 8 CFR 208.16(b)(3)(iv) 8 CFR 1208.16(b)(3)(iv) in the NPRM was inadvertent, and the Departments are correcting it accordingly in both regulations in the final rule.

Ninth, the Departments are making conforming edits to 8 CFR 208.6(a) and (b) and 8 CFR 1208.6(a) and (b) to make clear that the disclosure provisions of 8 CFR 208.6 and 1208.6 apply to applications for withholding of removal under the INA and for protection under the regulations implementing the CAT,

and not solely to asylum applications. That point is already clear in 8 CFR 208.6(d), (e) and 1208.6(d), (e), and the Departments see no reason not to conform the other paragraphs in that section for consistency. Tenth, and relatedly, the Departments are making edits to 8 CFR 208.6(a), (b), (d) and (e) and 8 CFR 1208.6(a) and (b), (d), and (e) to make clear that applications for refugee admission pursuant to INA 207(c)(1), 8 U.S.C. 1157(c)(1), and 8 CFR part 207 are subject to the same information disclosure provisions as similar applications for asylum, withholding of removal under the INA, and protection under the regulations implementing the CAT. The Departments already apply the disclosure provisions to such applications as a matter of policy and see no basis to treat such applications differently than those for protection filed by aliens already in or arriving in the United States. Eleventh, the Departments are amending 8 CFR 208.13(d)(2)(ii) to reflect that, operationally, DHS may refer or deny an asylum application, depending on the circumstances of the applicant.

See

8 CFR 208.14. Twelfth, the Departments are correcting 8 CFR 1208.30(g)(1)(i), (ii) to reflect that asylum officers issue determinations, not orders.

See

8 CFR 208.30(e).

See

UN General Assembly,

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85.

Thirteenth, EOIR is making a conforming change to 8 CFR 1244.4(b) to align it with the both the appropriate statutory citation and the corresponding language in 8 CFR 244.4(b). Aliens described in INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A), including those subject to the firm resettlement bar contained in INA 208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi), are ineligible for Temporary Protected Status. That statutory ineligibility ground is incorporated into regulations in both chapter I and chapter V of title 8; however, while the title I provision, 8 CFR 244.4(b), cites the correct statutory provision—INA 208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi)—the title V provision, 8 CFR 1244.4(b), maintains an outdated reference to an incorrect statutory provision.

Compare

8 CFR 244.4(b) (referencing INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A)),

with

8 CFR 1244.4(b) (referencing former INA 243(h)(2), 8 U.S.C. 1253(h)(2)).

The Departments are also making four non-substantive changes in the final rule to correct regulatory provisions that were inadvertently changed or deleted in the proposed rule or that introduced an unnecessary redundancy. First, the final rule reinserts language relating to DHS's ability to reconsider a negative credible fear finding that has been concurred upon by an immigration judge after providing notice of its reconsideration to the immigration judge, which was inadvertently removed from 8 CFR 1208.30(g)(2)(iv)(A) in the NPRM. The final rule reinserts that language in 8 CFR 208.30(g)(2)(i); it pertains to a DHS procedure and, thus, appropriately belongs in chapter I, rather than chapter V, of title 8.

Second, the final rule strikes the regulatory text changes proposed to 8 CFR 103.5. Those changes were not discussed in the preamble to the NPRM and were inadvertently included in the NPRM's proposed regulatory text.

Third, the final rule reinserts the consideration—of-novel-or-unique-issues language in 8 CFR 208.30(e)(4) that was inadvertently proposed to be removed in the NPRM, with modifications to account for changes in terminology adopted via this final rule (specifically, “[i]n determining whether the alien has a credible fear of persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a reasonable possibility of persecution or torture, the asylum officer shall consider whether the alien's case presents novel or unique issues that merit consideration in a full hearing before an immigration judge.”).

Fourth, this final rule removes the following sentence from the proposed 8 CFR 208.30(e)(4): “An asylum officer's determination will not become final until reviewed by a supervisory asylum officer.” Nearly identical text already exists in 8 CFR 208.30(e)(8) and would be repetitive to include in 8 CFR 208.30(e)(4).

In response to issues raised by commenters or to eliminate potential confusion caused by the drafting in the NPRM, the Departments are making five additional changes to the NPRM in the final rule. First, the Departments are amending the waiver provision in 8 CFR 208.1(c) and 1208.1(c) related to claims of ineffective assistance of counsel to provide an exception for egregious conduct on the part of counsel. As discussed,

infra,

the Departments believe that cognizable ineffective assistance of counsel claims in the context of failing to assert a particular social group should be extremely rare. If a particular social group is not asserted because the alien did not tell his or her counsel about it, then there has been no ineffective assistance on the part of counsel. If the alien did provide his or her counsel with a particular social group and counsel elected not to present it as a strategic choice, then there is no basis to reopen the proceedings.

See Matter of B-B-,

22 I&N Dec. at 310 (“subsequent dissatisfaction with a strategic decision of counsel is not grounds to reopen”). Nevertheless, the Departments recognize there may be

sui generis

situations in which “egregious circumstances” may warrant reopening due to ineffective assistance of counsel in this context, provided that appropriate procedural requirements for such a claim are observed. Thus, the Departments are adding such an

exception to the final rule, consistent with existing case law.

See id.

(“The respondents opted for a particular strategy and form of relief, and although they might wish to fault their former attorney and recant that decision, they are nonetheless bound by it, unless they can show egregious conduct on counsel's part.”);

see also Juan Antonio

Barr,

959 F.3d 778, 794 (6th Cir. 2020) (threats alone amount to persecution only when they are “of the most immediate and menacing nature” (citation omitted)).

Third, in recognition of commenters' concerns and the reality that aliens under the age of 18, especially very young children, may not have decisional independence regarding an illegal entry into the United States, the Departments are amending 8 CFR 208.13(d)(1)(i) and 1208.13(d)(1)(i) to reflect that an unlawful or attempted unlawful entry into the United States by an alien under the age of 18 will not be considered as a significant adverse discretionary factor in considering a subsequent asylum application filed by such an alien. The Departments do not believe that a similar exception is warranted in 8 CFR 208.13(d)(1)(ii) and (iii), and 1208.13(d)(1)(ii) and (iii), however. For (d)(1)(ii) to apply to an alien under the age of 18, that alien must have filed an asylum application in the United States, notwithstanding any language barriers or other impediments; thus, there is no reason to assume categorically that such an alien could not have filed an application for protection in another country. Consequently, the Departments find that no age exemption is warranted in 8 CFR 208.13(d)(1)(ii) and 1208.13(d)(1)(ii). Further, as discussed,

infra,

there is no reason that an alien of any age would need to use fraudulent documents to enter the United States in order to seek asylum. Accordingly, no age exemption is warranted in 8 CFR 208.13(d)(1)(iii) and 1208.13(d)(1)(iii). Even without age exemptions, the Departments note that these discretionary factors do not constitute bars to asylum and that adjudicators may appropriately consider an applicant's age in assessing whether a particular application warrants being granted as a matter of discretion.

Fourth, in response to commenters' concerns about the applicable effective date of the frivolousness provisions in 8 CFR 208.20 and 1208.20, the Departments have clarified the language in those provisions. The amendments to those provisions provided in this rule apply only to asylum applications filed on or after the effective date of the rule. The current definition of “frivolousness” will continue to apply to asylum applications filed between April 1, 1997, and the effective date of the rule.

Fifth, to avoid confusion and potential conflict between the proposed language of 8 CFR 208.20(b) and 1208.20(b) and 8 CFR 208.20(d) and 1208.20(d), the Departments are deleting language in the former regarding an alien's opportunity to account for issues with a claim. The intent of the NPRM, expressed unequivocally in the proposed addition of 8 CFR 208.20(d) and 1208.20(d), was clear that adjudicators would not be required to provide “multiple opportunities for an alien to disavow or explain a knowingly frivolous application.” 85 FR at 36276. The Departments inadvertently retained language from the current rule in the proposed additions of 8 CFR 208.20(b) and 1208.20(b), however, that was in tension with that intent.

Compare, e.g.,

8 CFR 208.20(b) (proposed) (“Such finding [of frivolousness] will only be made if the asylum officer is satisfied that the applicant has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim.”),

with

8 CFR 208.20(d) (proposed) (“If the alien has been provided the warning required by section 208(d)(4)(A) of the Act, he or she need not be given any additional or further opportunity to account for any issues with his or her claim prior to the entry of a frivolous finding.”). Accordingly, in the final rule, the Departments are deleting the sentence from 8 CFR 208.20(b) and 1208.20(b) regarding an alien's opportunity to address issues with his or her claim after receiving the statutory warning regarding the knowing filing of a frivolous asylum application to avoid any residual confusion on the point.

The following discussion describes the provisions of the final rule, which are substantially the same as the NPRM, and also incorporates the changes made in the final rule summarized above.

C. Provisions of the Final Rule

1. Expedited Removal and Screenings in the Credible Fear Process

1.1. Asylum-and-Withholding-Only Proceedings for Aliens With Credible Fear

DOJ is amending 8 CFR 1003.1, 8 CFR 1003.42(f), 8 CFR 1208.2, 8 CFR 1208.30, and 8 CFR 1235.6—and DHS is amending 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 would 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 would 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 proceedings under section 240 of the Act, 8 U.S.C. 1229a.

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 possible, the Departments are amending 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. The Departments believe that this change would bring the proceedings in line with the statutory objective that the expedited removal process be streamlined and efficient.

In addition, DOJ proposed 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.

1.2. Consideration of Precedent in Credible Fear Determinations

DOJ is adding 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 would be in addition to those currently listed 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 would 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 Board of Immigration Appeals (“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.

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

DOJ is removing and reserving the following provisions in chapter V of 8 CFR: 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 9823, 9826 (Feb. 28, 2003). Upon further review, the Department 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.

In comparison to the NPRM, this final rule is making an additional technical amendment by updating the outdated reference to “the Service” in 8 CFR 1235.6(a)(1)(ii) to read “DHS.”

1.4. Reasonable Possibility Standard for Statutory Withholding of Removal and Torture-Related Fear Determinations

The Departments are amending 8 CFR 208.30 and 8 CFR 1208.30 to clarify and raise the statutory withholding of removal screening standard and the torture-related screening standard under the CAT regulations for aliens in expedited removal proceedings and stowaways. Specifically, the Departments are amending 8 CFR 208.30 and 8 CFR 1208.30 to raise the standard of proof in credible fear screenings from a significant possibility that the alien can establish eligibility for statutory withholding of removal to a reasonable possibility that the alien would be persecuted because of his or her race, religion, nationality, membership in a particular social group, or political opinion.

See

8 CFR 208.16, 208.30(e)(2), 1208.16. Similarly, for aliens expressing a fear of torture, the Departments are amending 8 CFR 208.30 and 8 CFR 1208.30 to raise the standard of proof from a significant possibility that the alien is eligible for withholding or deferral of removal under the CAT regulations to a reasonable possibility that the alien would be tortured in the country of removal.

See

8 CFR 208.18(a), 208.30(e)(3), 1208.18(a); 85 FR at 36268. Consistent with INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), the asylum eligibility screening standard (a significant possibility that the alien could establish eligibility for asylum) currently applied in credible fear screenings remains unchanged.

See

INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). By clarifying and applying the “reasonable possibility” standard to the statutory withholding of removal screening and the torture-related screening under the CAT regulations, the alien's screening burdens would become adequately analogous to the merits burdens, where the alien's burdens for statutory withholding of removal and protections under the CAT regulations are higher than the burden for asylum.

The Departments are also amending 8 CFR 208.30, 8 CFR 1208.30, and 8 CFR 1003.42 to refer to the screenings of aliens in expedited removal proceedings and of stowaways for statutory withholding of removal as “reasonable possibility of persecution” determinations and the screening for withholding and deferral of removal under the CAT regulations as “reasonable possibility of torture” determinations, in order to avoid confusion between the different standards of proof.

In conjunction with the edits to DHS's regulation in 8 CFR 208.30, DOJ is amending 8 CFR 1208.30. Currently, after an asylum officer determines that an alien lacks a credible fear of persecution or torture, the regulation provides that an immigration judge in EOIR reviews that determination under the credible fear (“significant possibility”) standard. 8 CFR 208.30(g), 1208.30(g). DHS's “reasonable possibility” screening standard for statutory withholding of removal and CAT protection claims is a mismatch with EOIR's current regulation, which does not provide for a reasonable possibility review process in the expedited removal context. Therefore, DOJ is modifying 8 CFR 1208.30(g) to clarify that credible fear of persecution determinations (

i.e.,

screening for asylum eligibility) would continue to be reviewed under a “credible fear” (significant possibility) standard, but screening determinations for eligibility for statutory withholding of removal and protection under the CAT regulations would be reviewed under a “reasonable possibility” standard.

Additionally, to clarify terminology in 8 CFR 208.30(d)(2), mention of the Form M-444, Information about Credible Fear Interview in Expedited Removal Cases, is replaced with mention of relevant information regarding the “fear determination process.” This change clarifies that DHS may relay information regarding screening for a reasonable possibility of persecution and a reasonable possibility of torture, in addition to a credible fear of persecution.

DHS is also revising the language in 8 CFR 208.30(e)(1) to interpret the “significant possibility” standard that Congress established in section 235(b)(1)(B)(v) of the Act, 8 U.S.C. 1225(b)(1)(B)(v).

In comparison to the NPRM, this final rule is correcting a typographical error—

i.e.

“part” rather than “party”—in 8 CFR 208.30(e)(2)(ii). The sentence now reads: “Such other facts as are known to the officer, including whether the alien could avoid a future threat to his or her life or freedom by relocating to another part of the proposed country of removal and, under all circumstances, it would be reasonable to expect the applicant to do so[.]” In addition, this final rule adds the word “for” to correct the form name “Application for Asylum and for Withholding of Removal” at 8 CFR 1208.30(g)(2)(iv)(B). This final rule also reinserts language allowing DHS to reconsider a negative credible fear finding that has been concurred upon by an immigration judge after providing notice of its reconsideration to the immigration judge, which was inadvertently removed from 8 CFR 1208.30(g)(2)(iv)(A) in the NPRM. The final rule reinserts that language in 8 CFR 208.30(g)(2)(i) because it pertains to a DHS procedure and, thus, appropriately belongs in chapter I, rather than chapter V, of title 8.

1.5. Amendments to the Credible Fear Screening Process

The Departments further amend 8 CFR 208.30, 8 CFR 1208.30, and 8 CFR 1003.42 to make several additional technical and substantive amendments regarding fear interviews, determinations, and reviews of determinations. The Departments amend 8 CFR 208.30(a) and 8 CFR 1208.30(a) to clearly state that the respective sections describe the exclusive procedures applicable to applicants for admission who are found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act, 8 U.S.C. 1182(a)(6)(C) or 1182(a)(7), and receive “credible fear” interviews, determinations, and reviews under section 235(b)(1)(B) of the Act, 8 U.S.C. 1225(b)(1)(B).

DHS is clarifying the existing “credible fear” screening process in 8 CFR 208.30(b), which states that if an alien subject to expedited removal indicates an intention to apply for asylum or expresses a fear of persecution or torture, or a fear of return, an inspecting officer shall not proceed further with removal until the alien has been referred for an interview with an asylum officer, as provided in section 235(b)(1)(A)(ii) of the Act, 8 U.S.C. 1225(b)(1)(A)(ii). The rule also states that the asylum officer would screen the alien for a credible fear of persecution and, as appropriate, a reasonable possibility of persecution and a reasonable possibility of torture, and conduct an evaluation and determination in accordance with 8 CFR 208.9(c), which is consistent with current policy and practice. These proposals aim to provide greater transparency and clarity with regard to fear screenings.

DHS is also including consideration of internal relocation in the context of 8 CFR 208.30(e)(1)-(3), which outline the procedures for determining whether aliens have a credible fear of persecution, a reasonable possibility of persecution, and a reasonable possibility of torture. Considering internal relocation in the “credible fear” screening context is consistent with existing policy and practice, and the regulations addressing internal relocation at 8 CFR 208.16(c)(3)(ii) and 8 CFR 1208.16(c)(3)(ii) (protection under the CAT regulations); 8 CFR 208.13(b)(1)(i)(B) and 8 CFR 1208.13(b)(1)(i)(B) (asylum); and 8 CFR 208.16(b)(1)(i)(B) and 8 CFR 1208.16(b)(1)(i)(B) (statutory withholding). The regulatory standard that governs consideration of internal relocation in the context of asylum and statutory withholding of removal adjudications is different from the standard that considers internal relocation in the context of protection under the CAT regulations.

See generally Maldonado

Lynch,

786 F.3d 1155, 1163 (9th Cir. 2015) (noting the marked difference between the asylum and CAT regulations concerning internal relocation).

In addition, the Departments are adding asylum and statutory withholding eligibility bar considerations in 8 CFR 208.30(e)(1)(iii) and (e)(2)(iii), and 8 CFR 1003.42(d). Currently, 8 CFR 208.30(e)(5)(i) provides that if an alien, other than a stowaway, is able to establish a credible fear of persecution or torture but also appears to be subject to one or more of the mandatory eligibility bars to asylum or statutory withholding of removal, then the alien will be placed in section 240 proceedings. The Departments are amending 8 CFR 208.30 to apply mandatory bars to applying for or being granted asylum at the credible fear screening stage for aliens in expedited removal proceedings and for stowaways, such that if a mandatory bar to applying for or being granted asylum applies, the alien would be unable to show a significant possibility of establishing eligibility for asylum. In 8 CFR 208.30(e)(5), DHS requires asylum officers to determine (1) whether an alien is subject to one or more of the mandatory bars to being able to apply for asylum under section 208(a)(2)(B)-(D) of the Act, 8 U.S.C. 1158(a)(2)(B)-(D), or the bars to asylum eligibility under section 208(b)(2) of the Act, 8 U.S.C. 1158(b)(2), including any eligibility bars established by regulation under section 208(b)(2)(C) of the Act, 8 U.S.C. 1158(b)(2)(C); and (2) if so, whether the bar at issue is also a bar to statutory withholding of removal and withholding of removal under the CAT regulations. If a mandatory bar to asylum applies, the alien will then be screened only for statutory withholding of removal or withholding or deferral of removal under the CAT regulations. If the alien is subject to a mandatory bar to asylum that is also a mandatory bar to statutory withholding of removal, then the alien will be screened only for deferral of removal under the CAT regulations. An alien who could establish a credible fear of persecution or reasonable possibility of persecution but for the fact that he or she is subject to one of the bars that applies to both asylum and statutory withholding of removal would receive a negative fear determination, unless the alien could establish a reasonable possibility of torture, in which case he or she would be referred to the immigration court for asylum-and-withholding-only proceedings. In those proceedings, the alien would have the opportunity to raise whether he or she was correctly identified as being subject to the bar(s) to asylum and withholding of removal and also pursue protection under the CAT regulations.

Additionally, under 8 CFR 208.30(e)(5), DHS has used a “reasonable fear” standard (identical to the “reasonable possibility” standard enunciated in this rule) in procedures related to aliens barred from asylum under two interim final rules issued by the Departments,

as described in 8 CFR

208.13(c)(3)-(4). The Departments include technical edits in 8 CFR 208.30(e)(5), to change “reasonable fear” to “reasonable possibility” to align the terminology with the other proposed changes in this rule. Similarly, DOJ makes 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.

On July 16, 2019, the Departments issued an interim final rule providing that certain aliens described in 8 CFR 208.13(c)(4) or 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 (and, because they are subject to this bar, not be able to establish a credible fear of persecution) unless they qualify for certain exceptions.

See

Asylum Eligibility and Procedural Modifications, 84 FR 33829 (July 16, 2019). 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.

E. Bay Sanctuary Covenant

Barr,

391 F. Supp. 3d 974 (N.D. Cal. 2019). Two days later, the Supreme Court stayed the district court's injunction.

Barr

East Bay Sanctuary Covenant,

140 S. Ct. 3 (2019). On July 6, 2020, the Ninth Circuit affirmed the district court's injunction.

E. Bay Sanctuary Covenant

Barr,

964 F.3d 832 (9th Cir. 2020). Additionally, on June 30, 2020, the interim final rule was vacated by the D.C. District Court in

Capital Area Immigrants' Rights (“CAIR”) Coalition, et al.

Trump,

19-cv-02117 (D.D.C. 2020) and

I.A., et al.

Barr,

19-cv-2530 (D.D.C. 2020).

On November 9, 2018, the Departments issued an interim final rule providing 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.

See

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

amendments that would implement the rules at issue in the aforementioned cases.

Additionally, in 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 include 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 8 CFR 1208.30(g)(2)(iv)(C), DOJ makes 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 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. In 8 CFR 208.30(g)(1), the Departments treat an alien's refusal to indicate whether he or she desires review by an immigration judge as declining to request such review. Also, in 8 CFR 208.31, the Departments treat a refusal as declining to request review within the context of reasonable fear determinations.

In comparison to the NPRM, this final rule adds the word “for” to correct the form name to “Application for Asylum and for Withholding of Removal” at 8 CFR 208.31(g)(2) and 1208.31(g)(2). This final rule also reinserts language concerning novel or unique issues in 8 CFR 208.30(e)(4) that was inadvertently proposed to be removed in the NPRM, with modifications to account for changes in terminology adopted via this final rule. The language now reads: “In determining whether the alien has a credible fear of persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a reasonable possibility of persecution or torture, the asylum officer shall consider whether the alien's case presents novel or unique issues that merit consideration in a full hearing before an immigration judge.” Also, this final rule removes one sentence from the proposed 8 CFR 208.30(e)(4)—“An asylum officer's determination will not become final until reviewed by a supervisory asylum officer”—because similar text already exists in 8 CFR 208.30(e)(8) and it would be repetitive to include it in 8 CFR 208.30(e)(4).

2. Amendments Related to the Filing Requirements and Elements for Consideration of Form I-589, Application for Asylum and for Withholding of Removal

2.1. Frivolous Applications

The Departments amend both 8 CFR 208.20 and 1208.20 regarding determinations that an asylum application is frivolous.

See

INA 208(d)(6), 8 U.S.C. 1158(d)(6) (providing that an alien found to have “knowingly made a frivolous application for asylum” is “permanently ineligible for any benefits” under the Act). The Departments propose the new standards in order to ensure that manifestly unfounded or otherwise abusive claims are rooted out and to ensure that meritorious claims are adjudicated more efficiently so that deserving applicants receive benefits in a timely fashion.

The Departments clarify the meaning of “knowingly” by providing that “knowingly” requires either actual knowledge of the frivolousness or willful blindness toward it. 8 CFR 208.20(a)(2), 1208.20(a)(2). The Departments also amend the definition of “frivolous.” 8 CFR 208.20, 208.20(c)(1)-(4), 1208.20, 1208.20(c)(1)-(4). Under the new definition, if knowingly made, an asylum application would be properly considered frivolous if the adjudicator were to determine that it included a fabricated material element; that it was premised on false or fabricated evidence; that it was filed without regard to the merits of the claim; or that it was clearly foreclosed by applicable law. The definition aligns with the Departments' prior understandings of frivolous applications, including applications that are clearly unfounded, abusive, or involve fraud, and the Departments believe the definition would better effectuate the intent of section 208(d)(6) of the Act, 8 U.S.C. 1158(d)(6), to discourage applications that make patently meritless or false claims.

In addition, the Departments allow asylum officers adjudicating affirmative asylum applications to make findings that aliens have knowingly filed frivolous asylum applications and to refer the cases on that basis to immigration judges (for aliens not in lawful status) or to deny the applications (for aliens in lawful status). 8 CFR 208.20(b), 1208.20(b). For an alien not in lawful status, a finding by an asylum officer that an asylum application is frivolous would not render an alien permanently ineligible for immigration benefits unless an immigration judge or the BIA subsequently makes a finding of frivolousness upon de novo review of the application. Asylum officers would apply the same definition used by immigration judges and the BIA under this rule.

Id.

This change would allow U.S. Citizenship and Immigration Services (“USCIS”) to more efficiently root out frivolous applications, deter frivolous filings, and reduce the number of frivolous applications in the asylum system. Additionally, an asylum officer who makes a finding of frivolousness would produce a record on that issue for an immigration judge to review. Further, the proposed change is consistent with congressional intent to “reduce the likelihood that fraudulent or frivolous applications will enable deportable or excludable aliens to remain in the U.S. for substantial periods.” S. Rep. No. 104-249, at 2 (1996).

The Departments clarify that, as long as the alien has been given the notice of the consequences of filing a frivolous application, as required by section 208(d)(4)(A) of the Act, 8 U.S.C. 1158(d)(4)(A), the adjudicator need not give the alien any additional or further opportunity to account for any issues prior to the entry of a frivolousness finding. 8 CFR 208.20(d), 1208.20(d). The Departments have determined that this provision is sufficient to comply with the Act's requirements, and that there is no legal or operational justification for providing additional opportunities to address aspects of a claim that may warrant a frivolousness finding. The Departments believe the current regulatory framework, which provides that an EOIR adjudicator may only make a frivolous finding if he or she “is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim,” has not successfully achieved the Departments' goal of preventing knowingly frivolous applications that delay the adjudication of other asylum applications that may merit relief.

As this rule would overrule

Matter of Y-L-,

24 I&N Dec. 151 (BIA 2007), and revise the definition of “frivolous,” adjudicators would not be required to

provide opportunities for applicants to address discrepancies or implausible aspects of their claims if an applicant had been provided the warning required by INA 208(d)(4)(A) (8 U.S.C. 1158(d)(4)(A)).

In order to ameliorate the consequences of knowingly filing a frivolous application in appropriate cases, however, the Departments include a mechanism that would allow certain aliens in removal proceedings to withdraw, with prejudice, their applications by disclaiming the applications; accepting an order of voluntary departure for a period of no more than 30 days; withdrawing, also with prejudice, all other applications for relief or protection; and waiving any rights to file an appeal, motion to reopen, and motion to reconsider. 8 CFR 208.20(f), 1208.20(f). In such instances, the aliens would not be subject to a frivolousness finding and could avoid the penalties associated with such a finding. In addition, the regulation does not change current regulatory language that makes clear that a frivolousness finding does not bar an alien from seeking statutory withholding of removal or protection under the CAT regulations. Finally, the Departments clarify that an application may be found frivolous even if the application was untimely. 8 CFR 208.20(e), 1208.20(e).

In comparison to the NPRM, this final rule updates the frivolousness language in 8 CFR 208.20 and 8 CFR 1208.20 to further clarify that the new frivolousness standards only apply prospectively to applications filed on or after the effective date of this final rule. This final rule also replaces the word “essential” with the word “material” in 8 CFR 208.20(c)(1) and 1208.20(c)(1), consistent with the stated intent of the NPRM. Finally, to avoid confusion and potential conflict between the proposed language of 8 CFR 208.20(b) and 1208.20(b) and 8 CFR 208.20(d) and 1208.20(d), this final rule deletes the following sentence from proposed 8 CFR 208.20(b) and 1208.20(b): “Such finding will only be made if the asylum officer is satisfied that the applicant has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim.”

2.2. Pretermission of Applications

DOJ adds a new paragraph (e) to 8 CFR 1208.13 to clarify that immigration judges may pretermit and deny an application for asylum, statutory withholding of removal, or protection under the CAT regulations if the alien has not established a prima facie claim for relief or protection under the applicable laws and regulations.

See Matter of E-F-H-L-,

27 I&N Dec. 226 (A.G. 2018);

see also

INA 240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii); 8 CFR 1003.2(c)(3)(ii), 1003.23(b)(4)(i).

The Departments, however, provided exceptions for aliens who demonstrate that (1) they applied for and were denied protection in such country, (2) they are a trafficking victim as set out as 8 CFR 214.11, or (3) such country was at the time the alien transited not a party to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol relating to the Status of Refugees, or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 8 CFR 208.13(d)(2)(i)(A)(

)-(

), 1208.13(d)(2)(i)(A)(

)-(

The Departments, however, provided the same exceptions described above.

See

8 CFR 208.13(d)(2)(i)(B)(

)-(

), 1208.13(d)(2)(i)(B)(

)-(

The Departments included exceptions if the alien shows by the preponderance of the evidence that either exceptional circumstances prevented the alien from attending the interview or that the interview notice was not mailed to the last address provided by the alien or the alien's representative and neither the alien nor the alien's representative received notice of the interview. 8 CFR 208.13(d)(2)(i)(H)(

)-(

), 1208.13(d)(2)(i)(H)(

)-(

This rule provides that if the adjudicator were to determine that any of these nine circumstances applied during the course of the discretionary review, the adjudicator may nevertheless favorably exercise discretion in extraordinary circumstances, such as those involving national security or foreign policy considerations, or if the alien demonstrates, by clear and convincing evidence, that the denial or referral of asylum would result in an exceptional and extremely unusual hardship to the alien. 8 CFR 208.13(d)(2)(ii), 1208.13(d)(2)(ii).

In comparison to the NPRM, this final rule adds the clarifying phrase “as defined in section 212(a)(9)(B)(ii) and (iii) of the Act” to 8 CFR 208.13(d)(2)(i)(D) and 1208.13(d)(2)(i)(D) consistent with the intent of the NPRM. In addition, this final rule amends 8 CFR 208.13(d)(1)(i) and 1208.13(d)(1)(i) to reflect that an unlawful or attempted unlawful entry into the United States by an alien under the age of 18 will not be considered as a significant adverse discretionary factor in considering a subsequent asylum application filed by such an alien. Further, the final rule amends 8 CFR 208.13(d)(2)(ii) to reflect that, operationally, DHS may refer or deny an asylum application, depending on the circumstances of the applicant.

See

8 CFR 208.14.

2.10. Firm Resettlement

Due to the increased availability of resettlement opportunities and the interest of those genuinely in fear of persecution in attaining safety as soon as possible, the Departments revise the definition of firm resettlement that applies to asylum adjudications at 8 CFR 208.15 and 1208.15.

These

changes recognize the increased availability of resettlement opportunities and that an alien fleeing persecution would ordinarily be expected to seek refuge at the first available opportunity where there is no fear of persecution or torture. Further, the changes would ensure that the asylum system is used by those in need of immediate protection rather than those who chose the United States as their destination for other reasons and then relied on the asylum system to reach that destination.

As the Departments noted in the proposed rule, 85 FR at 36286 n.41, 43 countries have signed the Refugee Convention since 1990. In particular, resettlement opportunities in Mexico, one of the most common transit countries for aliens coming to the United States, have increased significantly in recent years. For example, the UNHCR has documented a notable increase in asylum and refugee claims filed in Mexico—even during the ongoing COVID-19 pandemic—which strongly

suggests that Mexico is an appropriate option for seeking refuge for those genuinely fleeing persecution.

See, e.g.,

Shabia Mantoo,

Despite pandemic restrictions, people fleeing violence and persecution continue to seek asylum in Mexico,

U.N. High Commissioner for Refugees (Apr. 28, 2020),

https://www.unhcr.org/en-us/news/briefing/2020/4/5ea7dc144/despite-pandemic-restrictions-people-fleeing-violence-persecution-continue.html

(“While a number of countries throughout Latin America and the rest of the world have closed their borders and restricted movement to contain the spread of coronavirus, Mexico has continued to register new asylum claims from people fleeing brutal violence and persecution, helping them find safety.”). Asylum and refugee claims filed in Mexico increased 33 percent in the first three months of 2020 compared to the same period in 2019, averaging almost 6000 per month.

Id.

Asylum claims filed in Mexico rose by more than 103 percent in 2018 compared to the previous year. U.N. High Commissioner for Refugees,

Fact Sheet

(Apr. 2019),

https://reporting.unhcr.org/sites/default/files/UNHCR%20Factsheet%20Mexico%20-%20April%202019.pdf.

Overall, “[a]sylum requests have doubled in Mexico each year since 2015.” Congressional Research Serv.,

Mexico's Immigration Control Efforts

(Feb. 19, 2020),

https://fas.org/sgp/crs/row/IF10215.pdf.

Moreover, some private organizations acknowledge that asylum claims in Mexico have recently “skyrocket[ed],” that “Mexico has adopted a broader refugee definition than the U.S. and grants a higher percentage of asylum applications,” and that “Mexico may offer better options for certain refugees who cannot find international protection in the U.S.,” including for those “who are deciding where to seek asylum [

i.e.

between Mexico and the United States].” Asylum Access,

Mexican Asylum System for U.S. Immigration Lawyers FAQ

(Nov. 2019),

https://asylumaccess.org/wp-content/uploads/2019/11/Mexican-Asylum-FAQ-for-US-Immigration-Lawyers.pdf.

Moreover, the Mexican Constitution was amended in 2011 to include the specific right to asylum and further amended in 2016 to expand that right.

See

Mex. Const. Art. 11 (“Every person has the right to seek and receive asylum. Recognition of refugee status and the granting of political asylum will be carried out in accordance with international treaties. The law will regulate their origins and exceptions.”). In fact, the grounds for seeking and obtaining refugee status under Mexican law are broader than the grounds under U.S. law. As in the United States, individuals in Mexico may seek refugee status as a result of persecution in their home countries on the basis of race, religion, nationality, gender, membership in a social group, or political opinion.

Compare

2011 Law for Refugees, Complementary Protection, and Political Asylum (“LRCPPA”), Art. 13(I),

with

INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i). However, individuals in Mexico may also seek refugee status based on “generalized violence” and “massive violation of human rights.”

See

2011 LRCPPA, Art. 13(II). In short, resettlement opportunities are unquestionably greater now than when the regulatory definition of “firm resettlement” was first implemented, and those changes warrant revisions to that definition accordingly.

Specifically, the Departments identify three circumstances under which an alien would be considered firmly resettled: (1) The alien resided in a country through which the alien transited prior to arriving in or entering the United States and (i) received or was eligible for any permanent legal immigration status in that country, (ii) resided in such a country with any non-permanent but indefinitely renewable legal immigration status (including asylee, refugee, or similar status but excluding status such as of a tourist), or (iii) resided in such a country and could have applied for and obtained any non-permanent but indefinitely renewable legal immigration status in that country; (2) the alien physically resided voluntarily, and without continuing to suffer persecution, in any one country for one year or more after departing his country of nationality or last habitual residence and prior to arrival in or entry into the United States; or (3) (i) the alien is a citizen of a country other than the one where the alien alleges a fear of persecution and the alien was present in that country prior to arriving in the United States, or (ii) the alien was a citizen of a country other than the one where the alien alleges a fear of persecution, the alien was present in that country prior to arriving in the United States, and the alien renounced that citizenship prior to or after arriving in the United States. 8 CFR 208.15(a)(1)-(3), 1208.15(a)(1)-(3).

The Departments further provide that the issue of whether the firm resettlement bar applies arises “when the evidence of record indicates that the firm resettlement bar may apply,” and specifically allows both DHS and the immigration judge to first raise the issue based on the record evidence. 8 CFR 208.15(b), 1208.15(b). Finally, the Departments specify that the firm resettlement of an alien's parent(s) would be imputed to the alien if the resettlement was prior to the alien turning 18 and the alien resided with the parents at the time of the firm resettlement unless the alien could not have derived any legal immigration status or any nonpermanent legal immigration status that was potentially indefinitely renewable from the parent.

Id.

In comparison to the NPRM, this final rule analyzes the components of 8 CFR 208.15(a)(1) and 1208.15(a)(1), breaks it into three subparagraphs, and changes the syntax, all for easier readability and to avoid confusion. The changes in the final rule are stylistic and do not reflect an intent to make a substantive change from the NPRM. This final rule also changes the temporal language in 8 CFR 208.15(a)(3)(i) and (ii) and 1208.15(a)(3)(i) and (ii) for clarity and consistency with similar language in 8 CFR 208.15(a)(2) and 1208.15(a)(2). The changes clarify the relevant temporal scope to read “after departing his country of nationality or last habitual residence and prior to arrival in or entry into the United States” in lieu of the language in the NPRM. Finally, as discussed above, the rule corrects a related outdated statutory cross-reference in 8 CFR 1244.4(b).

2.11. “Public Officials”

The Departments are revising 8 CFR 208.18(a)(1), (7) and 1208.18(a)(1), (7) to provide further guidance for determining what sorts of officials constitute “public officials,” including whether an official such as a police officer is a public official for the purposes of the CAT regulations if he or she acts in violation of official policy or his or her official status. Specifically, in comparison to the NPRM, this final rule strikes the parenthetical phrase “(“rogue official”)” in 8 CFR 208.18(a)(1) and 1208.18(a)(1). Relatedly, this final rule replaces the remaining uses of the phrase “rogue official” in 8 CFR 208.16(b)(3)(iv), 208.18(a)(1), and 1208.18(a)(1) with the definition, “public official who is not acting under color of law.” As recently noted by the Attorney General in

Matter of O-F-A-S-,

28 I&N Dec. 35, 38 (A.G. 2020), “continued use of the ‘rogue official' language by the immigration courts going forward risks confusion, not only because it suggests a different standard from the ‘under color of law' standard, but also because ‘rogue official' has been interpreted to have multiple meanings.”

In addition, the Departments clarify (1) that pain or suffering inflicted by, or at the instigation of or with the consent or acquiescence of, a public official is not torture unless it is done while the official is acting in his or her official capacity (

i.e.,

under “color of law”) and (2) that pain or suffering inflicted by, or at the instigation of or with the consent or acquiescence of, a public official not acting under color of law does not constitute a “pain or suffering inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity,” even if such actions cause pain and suffering that could rise to the severity of torture.

See

8 CFR 208.18(a)(1), 1208.18(a)(1). This amendment clarifies that the requirement that the individual be acting in an official capacity applies to

both a “public official,” such as a police officer, and an “other person,” such as an individual deputized to act on the government's behalf.

Id.

The Departments also clarify the definition of “acquiescence of a public official” so that, as several courts of appeals and the BIA have recognized, “awareness”—as used in the CAT “acquiescence” definition—requires a finding of either actual knowledge or willful blindness. 8 CFR 208.18(a)(7), 1208.18(a)(7). The Departments further clarify in this rule that, for purposes of the CAT regulations, “willful blindness” means that “the public official acting in an official capacity or other person acting in an official capacity was aware of a high probability of activity constituting torture and deliberately avoided learning the truth; it is not enough that such public official acting in an official capacity or other person acting in an official capacity was mistaken, recklessly disregarded the truth, or negligently failed to inquire.”

Id.

Additionally, the Departments clarify that acquiescence is not established by prior awareness of the activity alone, but requires an omission of an act that the official had a duty to do and was able to do. 8 CFR 208.18(a)(7), 1208.18(a)(7).

2.12. Information Disclosure

The Departments are making changes to 8 CFR 208.6 and 8 CFR 1208.6 to clarify that information may be disclosed in certain circumstances that directly relate to the integrity of immigration proceedings, including situations in which there is suspected fraud or improper duplication of applications or claims. Specifically, the Departments provide that to the extent not already specifically permitted, and without the necessity of seeking the exercise of the Attorney General's or Secretary's discretion under sections 1208.6(a) and 208.6(a), respectively, the Government may disclose all relevant and applicable information in or pertaining to the application for asylum, statutory withholding of removal, and protection under the CAT regulations as part of a Federal or state investigation, proceeding, or prosecution; as a defense to any legal action relating to the alien's immigration or custody status; during an adjudication of the application itself or an adjudication of any other application or proceeding arising under the immigration laws; pursuant to any state or Federal mandatory reporting requirement; and to deter, prevent, or ameliorate the effects of child abuse. 8 CFR 208.6(d)(1)(i)-(iv), 1208.6(d)(1)(i)-(vi). Finally, the Departments provide that nothing in 8 CFR 208.6 or 1208.6 should be construed to prohibit the disclosure of information in or relating to an application for asylum, statutory withholding of removal, and protection under the CAT regulations among specified government employees or where a government employee or contractor has a “good faith and reasonable” belief that the disclosure is necessary to prevent the commission of a crime, the furtherance of an ongoing crime, or to ameliorate the effects of a crime. 8 CFR 208.6(e), 1208.6(e).

The Departments are making conforming edits to 8 CFR 208.6(a) and (b) and 8 CFR 1208.6(b) to make clear that the disclosure provisions of 8 CFR 208.6 and 1208.6 apply to applications for withholding of removal under the INA and for protection under the regulations implementing the CAT, and not solely to asylum applications. That point is already clear in 8 CFR 208.6(d) and 1208.6(d), and the Departments see no reason not to conform the other paragraphs in that section for consistency.

2.13. Severability

Given the numerous and varied changes proposed in the NPRM, the Departments are adding severability provisions in 8 CFR parts 208, 235, 1003, 1208, 1212, and 1235.

See

8 CFR 208.25, 235.6(c), 1003.42(i), 1208.25, 1212.13, 1235.6(c). Because the Departments believe that the provisions of each part would function sensibly independent of other provisions, the Departments make clear that the provisions are severable so that, if necessary, the regulations can continue to function without a stricken provision.

3. Other

In comparison to the NPRM, this final rule strikes the regulatory text changes proposed at 103.5 because those changes were inadvertently included in the NPRM's proposed regulatory text.

II. Public Comments on the Proposed Rule

A. Summary of Public Comments

The comment period for the NPRM closed on July 15, 2020, with more than 87,000 comments received. Organizations, including non-government organizations, legal advocacy groups, non-profit organizations, religious organizations, unions, congressional committees, and groups of members of Congress, submitted 311 comments, and individual commenters submitted the rest. Most individual comments opposed the NPRM.

Many if not most comments opposing the NPRM either misstate its contents, provide no evidence (other than isolated or distinguishable anecdotes) to support broad speculative effects, are contrary to facts or law, or lack an understanding of relevant immigration law and procedures. As the vast majority of comments in opposition fall within one of these categories, the Departments offer the following general responses to them, supplemented by more detailed, comment-specific responses in Section II.C of this preamble.

Many comments oppose the NPRM because they misstate, in hyperbolic terms, that it ends or destroys the asylum system or eliminates the availability of humanitarian protection in the United States. The NPRM does nothing of the kind. The availability of asylum is established by statute, INA 208, 8 U.S.C. 1158, and an NPRM cannot alter a statute.

Rather, the NPRM, consistent with the statutory authority of the Secretary and the Attorney General, adds much-needed guidance on the many critical, yet undefined, statutory terms related to asylum applications. Such guidance not only improves the efficiency of the system as a whole, but allows adjudicators to focus resources more effectively on potentially meritorious claims rather than on meritless ones. In short, the NPRM enhances rather than degrades the asylum system.

For similar reasons, the NPRM cannot—and does not—alter the general availability of withholding of removal under the Act or protection under the CAT.

Many comments misstate that the NPRM creates a blanket rule denying asylum based on its addition of certain definitions—

e.g.,

particular social group, political opinion, nexus, and persecution. Although the rule provides definitions for these terms and examples of situations that generally will not meet those definitions, the rule also makes clear that the examples are generalizations, and it does not categorically rule out types of claims based on those definitions. In short, the rule does not contain the blanket prohibitions that some commenters ascribe to it.

Many comments assert that the NPRM targets certain nationalities, groups, or types of claims and is motivated by a nefarious or conspiratorial animus, particularly an alleged racial animus. The Departments categorically deny an improper motive in promulgating the NPRM. Rather, the animating principles of the NPRM were to provide clearer guidance to adjudicators regarding a number of thorny issues that have

created confusion and inconsistency; to improve the efficiency and integrity of the overall system; to correct procedures that were not working well, including the identification of meritless or fraudulent claims; and to reset the overall asylum adjudicatory framework in light of numerous—and often contradictory or confusing—decisions from the Board and circuit courts. The Departments' positions are rooted in law, as explained in the NPRM. In short, the Departments have not targeted any particular groups or nationalities in the NPRM or in the provisions of this final rule.

Rather, the Departments are appropriately using rulemaking to provide guidance in order to streamline determinations consistent with their statutory authorities.

See Heckler

Campbell,

461 U.S. 458, 467 (1983) (“The Court has recognized that even where an agency's enabling statute expressly requires it to hold a hearing, the agency may rely on its rulemaking authority to determine issues that do not require case-by-case consideration. . . . A contrary holding would require the agency continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding.”) (citation omitted);

see also

HSA, sec. 101, 116 Stat. at 2142 (“There is established a Department of Homeland Security, as an executive department of the United States . . . .”). However, the Departments disagree that issuing joint regulations violates the agencies' independence in the manner suggested by commenters. Instead, the DHS and DOJ regulations are inextricably intertwined, and the Departments' roles are often complementary.

See, e.g.,

INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III) (providing for immigration judge review of asylum officers' determinations regarding certain aliens' credible fear claims);

see

also 8 CFR 208.30 and 1208.30 (setting out the credible fear procedures, which involve actions before both DHS/USCIS and DOJ/EOIR). Because officials in both DHS and DOJ make determinations involving the same provisions of the INA, including those related to asylum, it is appropriate for the Departments to coordinate on regulations like the proposed rule that affect both agencies' equities in order to ensure consistent application of the immigration laws.

1.3. Impact on Particular Populations

Comment:

Commenters asserted that the proposed regulation is in conflict with American values and that it would deny due process to specific populations—including women, LGBTQ asylum seekers, and children. Commenters similarly expressed concerns that the proposed regulation would lead to the denial of virtually all applications from those populations, which, commenters asserted, would place them in harm's way.

Commenters asserted that the elimination of gender-based claims would be particularly detrimental to women and LGBTQ asylum-seekers. Commenters asserted that the proposed rule would “all but ban” domestic-violence-based and gang-based claims. Commenters noted that courts have found that such claims can be meritorious.

Response:

The Departments disagree that the rule is contrary to American values. The United States continues to fulfill its international commitments in accordance with the Refugee Act of 1980,

evidenced by United Nations High Commissioner for Refugees (“UNHCR”) data on refugee resettlement confirming that the United States was the top country for refugee resettlement in 2019, as well as 2017 and 2018.

See

UNHCR,

Resettlement at a Glance (January-December 2019), https://www.unhcr.org/protection/resettlement/5e31448a4/resettlement-fact-sheet-2019.html.

Further, since the Refugee Act was passed, the United States has admitted more than three million refugees and granted asylum to more than 721,000 individuals.

See

UNHCR,

Refugee Admissions, https://www.state.gov/refugee-admissions/.

In Fiscal Year (“FY”) 2019 alone, the Departments approved nearly 39,000 asylum applications. EOIR,

Asylum Decision Rates,

(Oct. 13, 2020),

https://www.justice.gov/eoir/page/file/1248491/download

(listing 18,836 grants); USCIS,

Number of Service-wide Forms Fiscal

Year To-

Date,

https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY19Q4.pdf

(listing 19,945 grants). This rule does not affect the United States' long-standing commitment to assisting refugees and asylees from around the world.

See infra

Section II.C.6.8 for further discussion on this point.

The rule does not deny due process to any alien. As an initial matter, courts have found that aliens have no cognizable due process interest in the discretionary benefit of asylum.

See Yuen Jin

Mukasey,

538 F.3d 143, 156-57 (2d Cir. 2008);

Ticoalu

Gonzales,

472 F.3d 8, 11 (1st Cir. 2006) (citing

DaCosta

Gonzales,

449 F.3d 45, 49-50 (1st Cir. 2006)). Still, the statute and regulations provide for certain basic procedural protections—such as notice and an opportunity to be heard—and the rule does not alter those basic protections.

See LaChance

Erickson,

522 U.S. 262, 266 (1998) (“The core of due process is the right to notice and a meaningful opportunity to be heard.”);

see also

8 CFR 208.1(f)(1), 1208.1(f)(1). At the same time, the Departments recognized in the NPRM that “in rare circumstances,” items from the list of common fact patterns “could be the basis for finding a particular social group, given the fact- and society-specific nature of this determination.” 85 FR at 36279. Thus, the NPRM explicitly stated that the rule did not “foreclose” any claims; the inquiry remains case-by-case.

2. Expedited Removal and Screenings in the Credible Fear Process

2.1. Asylum-and-Withholding-Only Proceedings for Aliens With Credible Fear

Comment:

One organization stated that the rule would deprive individuals who have established a credible fear from being placed into full removal proceedings under section 240 of the Act, 8 U.S.C. 1229a. Another organization claimed that the rule, “effectively destroys due process rights of asylum seekers” as it would prevent these individuals from contesting removability where there are “egregious due process violations,” defects in the Notice to Appear, or competency concerns.

One organization stated that the rule is contrary to congressional intent because there is no statutory prohibition against placing arriving asylum seekers into complete section 240 proceedings, and at least one organization claimed that this intent is supported by the legislative history. One organization expressed its disagreement with the rule's citation to

Matter of M-S-,

27 I&N Dec. 509 (A.G. 2019), 85 FR at 36267 n.9, contending that if Congress intended to “strip asylum-seekers of their due process rights, it would have expressly said so.” Another organization stated that the rule is “[a]rbitrary and capricious,” noting that the proposed policy is a “dramatic change” from decades of practice but claiming the Departments offer “no discussion” as to why it is necessary.

One organization emphasized that “asylum-only proceedings,” are limited in scope and both parties are prohibited from raising “any other issues.” The organization alleged that the NPRM did not include any data regarding the number of asylum seekers who are placed in section 240 proceedings after passing a credible fear interview, or the number of respondents in these proceedings who are granted some form of relief besides asylum or withholding of removal. Because of this, the organization claimed that the rule “does not provide adequate justification” for the proposed change.

Another organization claimed the rule “pre-supposes” that asylum seekers would not be eligible for other forms of immigration relief. The organization noted that many individuals who are apprehended at the border as asylum applicants may also be victims of human trafficking or serious crimes committed within the United States. The organization stated that Congress has recognized the unique assistance that victims of human trafficking and victims of crimes potentially eligible for U visas are able to provide to Federal law enforcement, claiming this is the reason the S visa, T visa, and U visa programs were created. The organization asserted that if the Departments “cut off” access to a complete section 240 proceeding, they will essentially “tie the hands” of law enforcement. Another organization expressed concern that the rule would prevent survivors of gender-based and LGBTQ-related violence in expedited removal proceedings from applying for protection under the Violence Against Women Act (“VAWA”) or the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”).

One organization contended that there is little efficiency in abandoning removability determinations in removal proceedings, arguing that “[i]n the overwhelming majority of cases, the pleadings required to establish removability take 30 seconds.” The organization argued that Congress

would not have chosen to sacrifice competency and accuracy to save such a short amount of time. Another organization criticized the rule's statement that “referring aliens who pass a credible fear for section 240 proceedings runs counter to [the] legislative aims” of a quick expedited removal process, 85 FR at 36267, arguing that this justification is “faulty at best and baseless at worst.” One organization claimed that administrative efficiency is aided by the availability of a broad range of reliefs because respondents placed in full removal proceedings often qualify for a simpler form of relief, allowing courts to omit many of these complexities.

One organization noted that, in the expedited removal context, decisions are made by Customs and Border Protection (“CBP”) officers. The organization expressed concern about the risk of error in permitting an enforcement officer to act as both “prosecutor and judge,” particularly when the officer's decisions are not subject to appellate review. The organization also noted the rule's reference to the “prosecutorial discretion” of DHS in removal proceedings and argued that this discretion does not include the authority to create new types of proceedings. Instead, the organization contended that this discretion is confined to decisions surrounding the determination of whether to pursue charges. Another organization emphasized that, while DHS has the discretion to place an individual without documentation directly into section 240 proceedings instead of expedited removal, this discretion is “initial,” and does not continue once the individual has established fear (as the individual must then be referred for full consideration of his or her claims). The organization disagreed with the rule's assertion, 85 FR at 36266, that the current practice of placing applicants with credible fear into section 240 proceedings “effectively negat[es]” DHS's prosecutorial discretion.

The organization further disagreed with the Departments' claim that “[b]y deciding that the [individual] was amenable to expedited removal, DHS already determined removability,” 85 FR at 36266, contending this “overreaches.” The organization noted that, pursuant to section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1), a DHS inspector does have initial discretion to place an applicant into expedited removal proceedings if it is determined that the person “is inadmissible under section 1182(a)(6)(C) or 1182(a)(7);” however, the organization emphasized that this is not the ultimate determination for applicants who establish credible fear, as DHS cannot continue to seek expedited removal at this point.

One organization stated that, when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Public Law 104-208, Div. C, 110 Stat. 3009, 3009-546, it created two specific removal procedures: Expedited removal proceedings in section 235 of the Act, 8 U.S.C. 1225, and regular removal proceedings in section 240 of the Act, 8 U.S.C. 1229a. The organization asserted that section 240 proceedings are the “exclusive” admission and removal proceedings “unless otherwise specified” in the Act, 8 U.S.C. 1229a(a)(3). The organization also noted Congress's specification that certain classes of citizens should not be placed in full removal proceedings, noting the exclusion of persons convicted of particular crimes (INA 240(a)(3), 8 U.S.C. 1229a(a)(3)); INA 238(a)(1), 8 U.S.C. 1228(a)(1)) as well as the prohibition of visa waiver program participants from contesting inadmissibility or removal except on the basis of asylum (INA 217(b), 8 U.S.C. 1187(b)). The organization also noted that, within the expedited removal statute itself, Congress specifically excluded stowaways from section 240 proceedings (INA 235(a)(1), 8 U.S.C. 1225(a)(2)); in contrast, Congress considered asylum seekers to be applicants for admission under section 235(a)(1) of the Act, 8 U.S.C. 1225(a)(1), and did not similarly exclude them (

see

INA 235(b), 8 U.S.C. 1225(b)). The organization concluded that the plain text of the INA “precludes the agencies' claim that they are free to make up new procedures to apply to arriving asylees”

(citing Henson

Santander Consumer USA, Inc.,

137 S. Ct. 1718, 1723 (2017)). The organization claimed that IIRIRA's legislative history “unanimously confirms” this conclusion, citing the conference report by the Joint Committee from the House and the Senate in support of its assertion.

See

H.R. Rep. No. 104-828 at 209 (1996). The organization also emphasized that, after twenty-three years of placing applicants with credible fear into section 240 proceedings, “Congress has never suggested that the agencies got that wrong.”

Another organization emphasized that Congress only authorized expedited removal for a specific category of noncitizens and that, at the time this determination was made, the class was confined to individuals arriving at ports of entry. The organization argued that Congress did not intend to deter individuals who have “cleared the hurdle of establishing a credible fear of persecution.” Another organization argued that the credible fear screening “creates an exit” from expedited removal proceedings, emphasizing that those who establish credible fear are effectively “screened out” of expedited removal proceedings (INA 235(b)(1)(B)(ii)-(iii), 8 U.S.C. 1225(b)(1)(B)(ii)-(iii)). One organization expressed particular concern that “the president has announced an intention to expand expedited removal to the interior of the United States,” noting that noncitizens who have been in the United States for up to two years are more likely to have other forms of relief to pursue.

Response:

The Departments disagree with commenters that the INA requires aliens who are found to have a credible fear to be placed in full removal proceedings pursuant to section 240 of the Act, 8 U.S.C. 1229(a). The expedited removal statute states only that “the alien shall be detained for further consideration of the application for asylum,” but is silent on the type of proceeding. INA 235(b)(1)(B)(ii) 8 U.S.C. 1225(b)(1)(B)(ii). This silence is notable as Congress expressly required or prohibited the use of full removal proceedings elsewhere in the same expedited removal provisions.

Compare

INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A) (explicitly requiring certain aliens not eligible for expedited removal to be placed in section 240 removal proceedings),

with

INA 235(a)(2), 8 U.S.C. 1225(a)(2) (explicitly prohibiting stowaways from being placed in section 240 removal proceedings).

As explained in the NPRM, the former Immigration and Naturalization Service (“INS”) interpreted this ambiguous section to place aliens with positive credible fear determinations into section 240 removal proceedings.

See

Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10312 (Mar. 6, 1997). However, it is the Departments' view that the better interpretation is to place aliens with positive credible fear determinations into limited asylum-and-withholding-only proceedings. This is consistent with the statutory language that the

alien is entitled to a further proceeding related to the alien's “application for asylum,” and not a full proceeding to also determine whether the alien should be admitted or is otherwise entitled to various immigration benefits. INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii).

The Departments note that section 240(a)(3) of the Act (8 U.S.C. 1229a(a)(3)), which makes removal proceedings the “exclusive” procedure for inadmissibility and removability determinations, is inapplicable here because DHS has already determined inadmissibility as part of the expedited removal process.

See

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

This interpretation also best aligns with the overall purpose of the expedited removal statute to provide a streamlined and efficient removal process for certain aliens designated by Congress.

See generally

INA 235, 8 U.S.C. 1225;

cf. DHS

Thuraissigiam,

140 S.Ct. 1959, 1966 (2020) (“As a practical matter . . . the great majority of asylum seekers who fall within the category subject to expedited removal do not receive expedited removal and are instead afforded the same procedural rights as other aliens.”). Further, contrary to commenters' claims, placing aliens into asylum-and-withholding-only proceedings is not inconsistent with the purposes of the credible fear statute.

See

INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The credible fear process was designed to ensure that aliens subject to expedited removal are not summarily removed to a country where they may face persecution on account of a protected ground or torture. This rule maintains those protections by ensuring that an alien with a positive credible fear finding receives a full adjudication of their claim in asylum-and-withholding-only proceedings.

The Departments note that any comments regarding the potential expansion of expedited removal is outside the scope of this rule.

Cf.

Designating Aliens for Expedited Removal, 84 FR 35409 (July 23, 2019).

Regarding commenters' concerns about due process in asylum-and-withholding-only proceedings, the Departments note that the rule provides the same general procedural protections as section 240 removal proceedings.

See

85 FR at 36267 (“These `asylum-and-withholding-only' proceedings generally follow the same rules of procedure that apply in section 240 proceedings . . . .”);

accord

8 CFR 1208.2(c)(3)(i) (“Except as provided in this section, proceedings falling under the jurisdiction of the immigration judge pursuant to paragraph (c)(1) or (c)(2) of this section [

i.e.,

asylum-and-withholding-only proceedings] shall be conducted in accordance with the same rules of procedure as proceedings conducted under 8 CFR part 1240, subpart A [

i.e.,

removal proceedings].”). Moreover, just as in removal proceedings, aliens will be able to appeal their case to the BIA and Federal circuit courts, as necessary. Finally, DOJ has conducted asylum-and-withholding-only proceedings for multiple categories of aliens for years already, 8 CFR 1208.2(c)(1) and (2), with no alleged systemic concerns documented about the due process provided in those proceedings.

The Departments agree with the commenter who noted that removability determinations are typically brief for those aliens subject to expedited removal who subsequently establish a credible fear and are placed in removal proceedings. The Departments believe that comment further supports the placement of such aliens in asylum-and-withholding-only proceedings since “in the overwhelming majority of cases,” there is no need for a new removability determination that would otherwise be called for in removal proceedings.

The Departments disagree with commenters that section 240 removal proceedings are more efficient than asylum-and-withholding-only proceedings or that more data is required to align asylum-and-withholding-only proceedings with the statutory language of INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), especially when there was little analysis—and no data offered—to support placing aliens with positive credible fear determinations in removal proceedings in the first instance.

See

85 FR at 36266 (stating that the 1997 decision to place such aliens in removal proceedings was made with limited analysis, other than to note that the statute was silent on the type of proceeding that could be used). Most aliens subject to the expedited removal process are, by definition, less likely to be eligible for certain other forms of relief due to their relatively brief presence in the United States.

See, e.g.,

INA 240A(b)(1), 8 U.S.C. 1229b(b)(1) (cancellation of removal for certain non-permanent residents requires ten years of continuous physical presence); INA 240B(b)(1)(A), 8 U.S.C. 1229c(b)(1)(A) (voluntary departure at the conclusion of proceedings requires an alien to have been physically present in the United States for at least one year prior to the service of a notice to appear). In particular, they are less likely to be eligible for the simplest form of relief, voluntary departure, because either they are arriving aliens, INA 240B(a)(4), 8 U.S.C. 1229c(a)(4), or they are seeking asylum, 8 CFR 1240.26(b)(1)(i)(B) (requiring the withdrawal of claims for relief in order to obtain pre-hearing voluntary departure), or they have not been physically present in the United States for at least one year prior to being placed in proceedings, INA 240B(b)(1)(A), 8 U.S.C. 1229c(b)(1)(A). Further, immigration judges often adjudicate multiple forms of relief in a single removal proceeding—in addition to asylum, withholding of removal, or CAT claims—and those additional issues generally only serve to increase the length of the proceedings. Although there may be rare scenarios in which aliens subject to expedited removal are eligible for a form of relief other than asylum, the Departments believe that interpreting the statute to place aliens with positive credible-fear determinations into more limited asylum-and-withholding-only proceedings properly balances the need to prevent aliens from being removed to countries where they may face persecution or torture with ensuring the efficiency of the overall adjudicatory process.

The Departments also disagree with comments that the placement of aliens who have passed a credible fear review in asylum-and-withholding-only proceedings will somehow “tie the hands” of law enforcement regarding an alien's eligibility for certain visas. The rule has no bearing on an alien's ability to provide assistance to law enforcement, and the adjudication of applications for S-, T-, and U-visas occurs outside of any immigration court proceedings.

See generally

8 CFR 214.2(t) (S-visa adjudication process), 214.11 (T-visa adjudication process), 214.14 (U-visa adjudication process).

The Departments note that S-visa recipients are already subject to withholding-only proceedings. INA 214(k)(3)(C), 8 U.S.C. 1184(k)(3)(C); 8 CFR 236.4(d), (e) and 1208.2(c)(2)(vi).

Commenters also mischaracterize the Departments' policy reliance on DHS's prosecutorial discretion authority, claiming that the Departments are relying on this discretion as the legal authority for placing aliens with positive credible fear determinations into asylum-and-withholding-only proceedings. However, it is the expedited removal statute that provides the authority,

see

INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), not DHS's prosecutorial discretion. In the NPRM, the Departments noted that it made better policy sense to place aliens with positive credible fear determinations into asylum-and-withholding-only proceedings; placing aliens in section 240 proceedings after a credible fear determination “effectively negates DHS's original discretionary decision.” 85 FR at 36266.

The Departments acknowledge commenters' concerns about CBP processing aliens for expedited removal and the exercise of prosecutorial discretion, but those issues are beyond

the scope of the rule. Moreover, the rule does not affect DHS's use of prosecutorial discretion, nor does it alter any other statutory authority of CBP.

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

Comment:

One organization stated that the rule would “unnecessarily narrow” the law that immigration judges must consider in the context of a credible fear review, restricting them to the circuit court law in their own jurisdiction. The organization alleged that this “makes little sense” because individuals seeking a credible fear review will often have their asylum claim adjudicated in a jurisdiction with different case law than the jurisdiction where their credible fear claim is reviewed. As an example, one organization suggested that an asylum seeker apprehended in Brownsville, Texas, in the Fifth Circuit, could subsequently have his or her asylum claim heard in an immigration court located within another circuit's jurisdiction. Because of this, the organization urged asylum officers and immigration judges to consider all case law when determining the possibility of succeeding on the claim, “[r]egardless of the location of the credible fear determination.”

One organization claimed the rule could require asylum officers to order the expedited removal of an applicant who has shown an ability to establish asylum eligibility under section 208 of the Act, 8 U.S.C. 1158, in another circuit or district, which the organization alleged is contrary to section 235(b)(1)(B)(v) of the Act, 8 U.S.C. 1225(b)(1)(B)(v). The organization also claimed this portion of the rule is “flatly contrary” to the decision in

Grace

Whitaker,

344 F. Supp. 3d 96 (D.D.C. 2018) (hereinafter “

Grace I”

overruled in part, Grace

Barr,

965 F.3d 883 (D.C. Cir. 2020), holding that the same provision in USCIS guidance was contrary to the INA. The organization quoted

Grace I,

344 F. Supp. 3d 96 in which the court stated that “[t]he government's reading would allow for an [individual's] deportation, following a negative credible fear determination, even if the [individual] would have a significant possibility of establishing asylum under section 1158 during his or her removal proceeding. Thus, the government's reading leads to the exact opposite result intended by Congress.”

Id.

at 140. The organization also claimed the rule violates

Brand X

because it exceeds the Departments' “limited ability to displace circuit precedent on a specific question of law to which an agency decision is entitled to deference” (citing

Grace I,

344 F. Supp. 3d at 136). Another organization alleged that the Departments offer no explanation for the policy change, claiming there is “no discernable reason” for it other than to “limit the possibility of favorable case law in another jurisdiction.”

One organization noted that well-settled USCIS policy holds that, in the case of a conflict or question of law, “generally the interpretation most favorable to the applicant is used when determining whether the applicant meets the credible fear standard” regardless of where the credible fear interview is held. The organization claimed that this policy is in line with congressional intent, quoting a statement from Representative Smith that “[l]egal uncertainty must, in the credible fear context, adhere to the applicant's benefit.” The organization alleged that the NPRM fails to note or explain this departure from practice.

Response:

The Departments decline to respond to comments centering on an asylum officer's consideration of precedent as that issue was not addressed in this rule, and further disagree with commenters that immigration judges are currently required to consider legal precedent from all Federal circuit courts in credible fear proceedings. DOJ has not issued any regulations or guidance requiring immigration judges to use a “most favorable” choice of law standard in credible fear review proceedings.

See, e.g.,

8 CFR 1003.42.

Moreover, the statute is silent as to this choice of law question.

See

INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). Due to this ambiguity, the Departments are interpreting the statute to require immigration judges to apply the law of the circuit in which the credible fear review proceeding is located. This better comports with long-standing precedent affirming the use of the “law of the circuit” standard in immigration proceedings.

See Jama

ICE,

543 U.S. 335, 351 n.10 (2005) (“With rare exceptions, the BIA follows the law of the circuit in which an individual case arises . . . .” (citations omitted));

Ballesteros

Ashcroft,

452 F.3d 1153, 1157 (10th Cir. 2006) (explaining that an immigration judge “should analyze removability and relief issues using only the decisions of the circuit in which he or she sits . . . since it is to that circuit that any appeal from a final order of removal must be taken”). It will also provide clarity to immigration judges conducting credible fear reviews, particularly on issues in which there is conflicting circuit court precedent.

Further, contrary to commenters' assertions, in most cases the immigration judge conducting the credible fear review in person will be in the same circuit in which the full asylum application in asylum-and-withholding only proceedings would be adjudicated if the judge finds the alien has a credible fear.

Aliens in this posture are subject to detention by DHS.

Thuraissigiam,

140 S.Ct. at 1966 (“Whether an applicant [subject to expedited removal] who raises an asylum claim receives full or only expedited review, the applicant is not entitled to immediate release.”). As a result, unless DHS moves the alien to a detention facility in a different circuit, the case would likely remain in the same jurisdiction. Requiring the immigration judge to review nationwide circuit case law would only create inefficiencies in a credible fear review process that Congress intended to be streamlined.

See

INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III) (requiring immigration judge review to be completed “as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days” after the asylum officer's determination).

Even in situations in which an immigration judge conducts the review from a different location—

e.g.

by telephone or by video teleconferencing—in a different circuit, the rule provides a clear choice of law principle to apply.

Moreover, the Departments have reviewed the statutory mandate in the credible fear context and note that a rule requiring evaluation of a claim using law beyond that of a particular circuit could produce perverse outcomes contrary to the statute. For example, an alien could be found to have a “significant possibility” of establishing eligibility for asylum under section 208 of the Act even though binding law of the circuit in which the application would be adjudicated precludes the alien from any possibility of establishing eligibility for asylum. Such an absurd result would be both contrary to the statutory definition of a credible fear, INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), and would further burden the system with claims that were known to be unmeritorious at the outset. The Departments decline to adopt a course of action that would lead to results inconsistent with the statute.

Moreover, adopting the uniform rule proposed by the Departments would ameliorate otherwise significant operational burdens—burdens that would be inconsistent with Congress's

goal of establishing an efficient expedited removal system. Without it, asylum officers and immigration judges around the country would potentially have to consider and apply a shifting patchwork of law from across the country, and this obligation would undermine the stated statutory aim of expedited removal: To remove aliens expeditiously.

The Departments' choice-of-law rule in this context is reasonable. The most natural choice-of-law principle is the rule that the law of the circuit where the interview is conducted governs. That is the principle embraced by DOJ in adjudicating the merits of asylum claims,

Matter of Anselmo,

20 I&N Dec. 25, 31 (BIA 1989) (“We are not required to accept an adverse determination by one circuit . . . as binding throughout the United States.”), as well as by circuit courts. For example, where the law governing an agency's adjudication is unsettled, an agency generally is required to acquiesce only in the law of the circuit where its actions will be reviewed; while “intracircuit acquiescence” is generally required, “intercircuit acquiescence” is not.

See Johnson

U.S. R.R. Ret. Bd.,

969 F.2d 1082, 1093 (D.C. Cir. 1992). Because the circuits may disagree on the law, requiring acquiescence with every circuit would charge the Departments with an impossible task of following contradictory judicial precedents.

See Nat'l Envtl. Dev. Ass'n Clean Air Project

EPA,

891 F.3d 1041, 1051 (D.C. Cir. 2018);

see also

Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 FR 10349 (Mar. 5, 2003). DOJ transferred parts of the Code of Federal Regulations that pertained exclusively to EOIR from chapter I to chapter V; duplicated parts of the Code of Federal Regulations that related to both the INS and EOIR, which were included in both chapters I and V; and made technical amendments to both chapters I and V. For example, DOJ duplicated all of part 235 in the newly created 8 CFR part 1235 because the Department determined that “nearly all of the provisions of this part affect bond hearings before immigration judges.” 68 FR at 9826. The Departments anticipated further future adjustments and refinements to the regulations in the future “to further refine the adjudicatory process.” 68 FR at 9825.

Upon further review, however, DOJ has determined that 8 CFR 1235.1, 1235.2, 1235.3, and 1235.5 are not needed in 8 CFR chapter V because they concern procedures specific to DHS's examination of applicants for admission and are outside the purview of DOJ's immigration adjudicators.

See

85 FR at 36267. In order to prevent confusion and reduce the chance of future inconsistencies with 8 CFR 235.1, 235.2, 235.3, and 235.5, which are not amended, the rule removes and reserves 8 CFR 1235.1, 1235.2, 1235.3, and 1235.5. Finally, in response to the commenter's particular concern, the Departments note that DOJ does not make parole determinations, and DHS's parole authority in 8 CFR 235.3(c) is both unaffected by this rule and outside the scope of the rulemaking generally.

2.4. 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

Comment:

One organization noted that the rule would require that those applying for withholding of removal to prove a “reasonable fear” of persecution, which is a higher standard than that required for asylum. The organization suggested that the drafters of the rule were targeting individuals who are ineligible for asylum and are thus applying for withholding of removal only. The organization noted that a large number of refugees may meet this criteria due to the administration's “unsuccessful attempts” to impose additional asylum restrictions on individuals entering the United States outside a port of entry, as well as those arriving at the southern border after passing through third countries, if they did not apply for asylum and have their application(s) rejected in one of those countries.

One commenter alleged that the rule would “greatly increase the burden” of individuals eligible only for withholding of removal or protection under CAT to succeed in initial interviews and present their cases before an immigration judge. The commenter noted that the rule would require asylum seekers who would be subject to a bar on asylum, including those subject to the “transit ban” found at 8 CFR 208.13(c)(4)(ii), to meet the heightened standard in order to have their cases heard before an immigration judge. The commenter alleged that the rule would “essentially eliminate” the

“significant possibility” standard set forth by Congress in the INA and replace it with a “reasonable possibility” standard which is much harder for asylum seekers to meet. One organization claimed that, as a result, “[m]eritorious asylum seekers will be screened out of the asylum system—a reality Congress expressly prohibited.”

One organization claimed that Congress intended to set a low screening standard for the credible fear process in order to aid eligible asylum seekers and alleged that the NPRM fails to provide justification for raising this standard. The organization expressed concern that asylum officers lack the resources to “jump” from applying the “significant possibility” standard to the “reasonable possibility” standard during a brief interview and also emphasized that noncitizens are more likely to obtain counsel in immigration court than in the initial screening process. One commenter stated that the rule, “[u]nrealistically and unconscionably” heightens the standard individuals must meet upon arrival at the border and limits the protections for individuals who “have or would be tortured.”

One organization emphasized that the “reasonable possibility” standard is essentially the same burden of proof used when adjudicating an asylum application in a full immigration hearing. The organization claimed, however, that individuals seeking a fear determination will almost always have less evidence and less time to present their case than individuals in court. As a result, the organization alleged that the standard of proof in fear determinations should be lower than that used in immigration court hearings. Another organization criticized the Departments' assertion that raising the screening bar is necessary to “align” the screening with the burden of proof in the merits proceeding for each type of relief. The organization disagreed, noting that asylum officers must already consider the merits burden of proof when screening for fear under existing law, as they must determine whether there is a “significant possibility” that an applicant “could be eligible” for each type of potential relief. The commenter asserted that this necessarily entailed a consideration of the burden of proof to establish eligibility for those forms of relief. As a result, the higher screening burden “serves only to require more and stronger evidence before the merits stage, and at a moment when applicants are least likely to be able to amass it.”

One organization noted that many credible fear applicants are “profoundly traumatized, exhausted, terrified,” and unfamiliar with the legal process, and emphasized that these individuals will not have time to gather their thoughts or collect evidence to support “highly fact-specific inquiries” at an interview screening. Another organization stated that asylum-seekers are screened in “exceedingly challenging circumstances,” as well as in cursory interviews over the telephone. One organization specifically alleged that the Departments failed to consider how trauma affects the fear screening process, emphasizing research showing that trauma affects demeanor in ways that could “easily affect credibility” (nervousness, inability to make eye contact, etc.). At least one organization expressed particular concern for LGBTQ asylum seekers, and another organization emphasized that arriving applicants are unrepresented, unlikely to understand U.S. legal standards, and may be fearful or reluctant to discuss their persecution with authorities.

One organization claimed the Departments have offered no evidence that the current procedure of using one standard to screen for any claim for relief complicates or delays the expedited removal process, alleging that this argument is not supported by government data. The organization noted that the number of individuals removed through expedited removal has increased fairly steadily over the years, stating that 43 percent of removals during 2018 were through the expedited removal process and that this proportion has not changed over the past decade. The organization also asserted there is no evidence that “requiring asylum officers to evaluate varying claims relating to the same group of facts with three different screens would be simpler,” claiming this would actually make the determination more complicated.

The organization also disagreed with the Departments' suggestion that DOJ's language in a previous rule “imposing the higher burden to a particular group in a previous rule supports their rationale” (citing 85 FR at 36270). The organization emphasized that, in the previous rule, DOJ applied a higher screening standard strictly to individuals “subject to streamlined administrative removal processes for aggravated felons under section 238(b) of the Act and for [people] subject to reinstatement of a previous removal order under section 241(a)(5) of the Act.” Regulation Concerning the Convention Against Torture, 64 FR 8478, 8485 (Feb. 19, 1999). The organization claimed DOJ specifically distinguished that group as different from the “broad class” of arriving individuals subject to expedited removal, stating that the Departments offer no explanation for why this “broad class” can now be treated as a “narrowly defined class whose members can raise only one claim.” The organization also accused the Departments of failing to explain what authority they used to add to and raise the statutory burden of proof in Congress's “carefully described credible fear procedures.” INA 235(b), 8 U.S.C. 1225(b).

One organization noted that a U.S. district court vacated the “third country asylum ban regulations” on June 30, 2020,

see Capital Area Immigrants' Rights Coalition

Trump,

—F.Supp.3d—, 2020 WL 3542481 (D.D.C. 2020) and also noted that the Ninth Circuit upheld a previous injunction against the rule on July 6, 2020,

see E. Bay Sanctuary Covenant

Barr,

964 F.3d 832 (9th Cir. 2020). The organization also referred to a separate rule that it claimed attempted to ban asylum for individuals entering the United States without inspection and noted that this rule was “blocked” by two separate district courts.

See E. Bay Sanctuary Covenant

Trump,

354 F.Supp.3d 1094 (N.D. Cal 2018);

O.A.

Trump,

404 F. Supp. 3d 109 (D.D.C. 2019). The organization noted that, based on these cases, it is unclear who would be eligible for withholding of removal or CAT only. The organization concluded by emphasizing that Congress created the credible fear standard as a safeguard due to “the life or death nature of asylum,” and described the proposed higher evidentiary standard as “cruelly irresponsible.”

Response:

In general, commenters appear to have confused multiple rulemakings, as well as the existing legal differences between and among asylum, statutory withholding of removal, and protection under the CAT regulations. The Departments decline to adopt the commenters' positions to the extent they are based on inaccurate or confused understandings of the proposed rule and of the legal distinctions between and among asylum, statutory withholding of removal, and protection under the CAT regulations.

Contrary to commenters' claims, the change of the credible fear standards for statutory withholding and protection under the CAT regulations are unrelated to the Departments' other asylum-related regulatory efforts, which are outside the scope of this rule, and the current change is not intended to “target” aliens that are not subject to those previous asylum regulations.

See, e.g.,

Asylum Eligibility and Procedural

Modifications, 84 FR 33829 (July 16, 2019); Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 FR 55934 (Nov. 9, 2018). Further, the change in standards has no bearing on how any alleged trauma is assessed during the screening process by either asylum officers or immigration judges. Adjudicators in both Departments have conducted these assessments for many years and are trained and well-versed in assessing the credibility of applicants, including accounting for any alleged trauma that may be relevant.

As discussed in the NPRM, Congress did not require the same eligibility standards for asylum, statutory withholding of removal, and protection under the CAT in the “credible fear” screening process.

See

85 FR at 36268-71. In fact, the INA does not include any references to statutory withholding of removal or protection under the CAT regulations when explaining the “credible fear” screening process.

See

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

see also

The Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Public Law 105-277, 112 Stat. 2681-822.

Instead, the Departments have the authority to establish procedures and standards for statutory withholding of removal and protection under the CAT.

See

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 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); FARRA, Public Law 105-277, sec. 2242(b), 112 Stat. at 2681-822 (providing that “the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3” of CAT).

Using this authority, the Departments believe that, rather than being “unrealistic[ ]” or “unconscionabl[e]” as commenters claim, raising the standards of proof to a “reasonable possibility” during screening for statutory withholding of removal and protection under the CAT regulations better aligns the initial screening standards of proof with the higher standards used to determine whether aliens are in fact eligible for these forms of protection when applying before an immigration judge. Further, as explained in the NPRM, this higher standard will also serve to screen out more cases that are unlikely to be meritorious at a full hearing, which will allow the overburdened immigration system to focus on cases more likely to be granted. And, contrary to commenters' claims, the NPRM did not claim that the use of a single “significant possibility” standard complicates or delays the expedited removal process.

The Departments recognize that a higher screening standard may make it more difficult to receive a positive fear determination. However, the Departments disagree with commenters that raising the screening standard for statutory withholding of removal and CAT protection will require aliens to submit significantly stronger documentary evidence. At the credible fear interview stage, these claims rest largely on the applicant's testimony, which does not require any additional evidence-gathering on the applicant's part.

See, e.g.,

8 CFR 208.30(d), 208.30(e)(2) (describing the interview and explicitly requiring the asylum officer to make a credible fear determination after “taking into account the credibility of the statements made by the alien in support of the alien's claim”).

In addition, the Departments have long used the “reasonable possibility” standard for reasonable fear determinations made under 8 CFR 208.31 and 8 CFR 1208.31, which cover certain classes of aliens who are ineligible for asylum but who are eligible for statutory withholding of removal and protection under the CAT regulations.

See

8 CFR 208.31(a), 208.31(c), 1208.31(a), 1208.31(c).

By changing the standard in credible fear interviews for statutory withholding and CAT protection, asylum officers will process such claims under the same standard, providing additional consistency. Moreover, asylum officers receive significant training and the Departments have no concerns that they will be able to properly apply the standards set forth in this rule.

See

8 CFR 208.1(b) (ensuring training of asylum officers).

Commenters raised concerns about analogizing the use of the “reasonable possibility” screening standard in 8 CFR 208.31 and 1208.31, which applies only to certain categories of aliens. However, the Departments referenced those regulations here and in the NPRM merely to show that the “reasonable possibility” standard has long existed in other contexts.

See, e.g.,

85 FR at 36270.

In short, it is both illogical and inefficient to screen for three potential forms of protection under the same standard when two of those forms have an ultimately higher burden of proof. The Departments' rule harmonizes the screening of the various applications consistent with their respective ultimate burdens and ensures that non-meritorious claims are more quickly weeded out, allowing the Departments to focus more of their resources on claims likely to have merit.

2.4.1. Specific Concerns With “Significant Possibility” Standard

Comment:

One commenter claimed the rule would make it much harder for asylum seekers subject to expedited removal to have their asylum requests “fully considered” by an immigration judge. The commenter noted that Congress intentionally set a low standard—“significant possibility”—for the credible fear interview in order to prevent legitimate refugees from being deported; one organization noted that this standard was designed to “filter out economic migrants from asylum seekers.” Commenters argued that the rule's redefinition of the “significant possibility” standard as “a substantial and realistic possibility of succeeding” contradicts the language Congress set forth in section 235(b)(1)(B)(v) of the Act, 8 U.S.C. 1225(b)(1)(B)(v) and is thus “ultra vires.”

One organization argued that the legislative history confirms Congress's intent to protect “bona fide” asylum seekers. The organization cited the Judiciary Committee report to the House version of the bill that stated that “[u]nder this system, there should be no danger that an alien with a genuine asylum claim will be returned to persecution” and that “the asylum officer should attempt to elicit all facts relevant to the applicant's claim.” The organization included a statement from Senator Orrin Hatch noting that “[t]he conference report struck a compromise” and the standard adopted was “intended to be a low screening standard for admission into the usual full asylum process.”

Finally, one organization stated that there is no “sliding scale for legal standards based on the volume of cases,” emphasizing that national security is irrelevant to the appropriate legal standard for credible fear. The organization claimed that raising the standard in order to “better secure the homeland” contradicts the clear meaning of the statute and is “ultra vires.”

Response:

Again, commenters appear to have confused the existing legal differences between and among asylum, statutory withholding of removal, and CAT protection, and the Department declines to adopt the commenters' positions to the extent they are based on inaccuracies or misstatements of law.

The rule does not change the “significant possibility” standard in credible fear interviews for asylum claims, which is set by statute.

See

INA

235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). As a result, asylum claims will continue to be processed under the “significant possibility” standard in credible fear interviews. Instead, the rule only changes the standard to a “reasonable possibility” for statutory withholding of removal and CAT protection claims. Congress did not address the standards for these claims in credible fear interviews and instead explicitly focused on asylum claims.

See generally

INA 235(b), 8 U.S.C. 1225(b)(1)(B) (describing asylum interviews). Therefore, the Departments are within their authority to change these standards, as the use of a “reasonable possibility” standard does not contradict the “significant possibility” language in the statute, which only applies to asylum claims.

See generally

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 this chapter and all other laws relating to the immigration and naturalization of aliens . . . .”); INA 103(g)(2), 8 U.S.C. 1103(g)(2) (“The Attorney General shall establish such regulations . . . as the Attorney General determines to be necessary for carrying out this section.”).

Moreover, in response to commenters' concerns about the “significant possibility” asylum standard in credible fear proceedings, the Departments note that this change does not raise the standard; instead, it merely codifies existing policy and practice in order to provide greater clarity and transparency to adjudicators and affected parties. USCIS already uses the “significant possibility” definition in screening whether an asylum-seeker has established a credible fear of persecution.

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).

This definition is also consistent with Congress's intent to create “a low screening standard for admission into the usual full asylum process,” 142 Cong. Rec. S11491 (daily ed. Sept. 27, 1996) (statement of Senate Judiciary Committee Chairman Orrin Hatch), and with the statutory text.

See

INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). For example, the “significant possibility” standard does not require a showing that it is more likely than not that the applicant can meet their asylum burden in immigration court. Instead, the standard merely requires the applicant establish “a substantial and realistic possibility of succeeding” on their asylum claim, which in turn requires a showing of as little as a 10 percent chance of persecution on account of a protected ground.

See I.N.S.

Cardoza-Fonseca,

480 U.S. 421, 431-32 (1987). This additional language will help adjudicators and affected parties to ensure that the proper screening standard is used in the credible fear process.

2.5. Proposed Amendments to the Credible Fear Screening Process

Comment:

One organization claimed that the rule would essentially combine the credible fear interview with the merits hearing and require an asylum officer to do both simultaneously. The organization contended that this would leave applicants who turn themselves in to CBP with no time to prepare and “essentially no chance of success.” The organization emphasized that individuals arriving at the border are often “exhausted, stressed out, or ill,” noting the high probability that an individual will be physically, emotionally, or mentally unfit for an interview that “may determine whether he and his family lives or dies.” The organization claimed this situation has been aggravated by the COVID-19 pandemic.

One organization stated that some individuals fleeing persecution and torture “bypass CBP” because they lack knowledge about asylum or believe they will be treated unfairly. The organization noted that some of these individuals prepare asylum applications on their own (either prior or subsequent to apprehension by ICE) and emphasized that these cases, which fall “outside the established procedures,” are far more difficult to regulate. The organization contended that, if the credible fear and merits interviews are combined, poor asylum or CAT protection seekers will be incentivized to evade CBP in order to try and obtain help preparing an application. The organization emphasized that if the Departments replace the existing procedure with one that is “essentially impossible for many deserving people to use,” their jobs will become more difficult and their efforts less efficient.

One organization expressed concern regarding the specific language in proposed 8 CFR 208.30(d)(1), claiming that it “does not pass either simple humanity or due process.” The organization conceded that the language of existing 8 CFR 208.30(d)(1) is identical, but claimed this “does not excuse the proposed provision.” Instead, the organization claimed the language should read as follows: “[i]f the [asylum] officer conducting the interview determines that the alien is unable to participate effectively in the interview because of illness, fatigue, or other impediments, the officer

shall

reschedule the interview.”

One organization also emphasized that the rule would require asylum officers to consider bars to asylum, including the internal relocation bar,

during initial fear screenings. The organization alleged that the rule seems to build off the “Asylum and Internal Relocation Guidance” issued by USCIS, which the organization claimed was posted last summer “without going through an NPRM.” Another organization claimed that this portion of the rule is “contrary to law and existing practice,” noting that section 235(b) of the Act, 8 U.S.C. 1225(b), requires asylum officers to determine whether there is a “significant possibility” that an applicant could establish eligibility for asylum in some future proceeding. One organization emphasized that most credible fear applicants are unrepresented and have difficulty understanding the complex internal relocation analysis, noting that asylum seekers would likely need to include detailed country conditions materials in support of their claims. In addition, the organization claimed that adding “an additional research burden” on asylum officers would be inefficient.

The Departments note that the

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