Procedures for Asylum and Withholding of Removal

Federal RegisterDec 16, 2020

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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003, 1103, 1208 and 1240

[Docket No. EOIR 19-0010; Dir. Order No. 04-2021]

RIN 1125-AA93

Procedures for Asylum and Withholding of Removal

AGENCY:

Executive Office for Immigration Review, Department of Justice.

ACTION:

Final rule.

SUMMARY:

On September 23, 2020, the Department of Justice (“DOJ” or “the Department”) published a notice of proposed rulemaking (“NPRM” or “proposed rule”) that proposed to amend the regulations governing the adjudication of applications for asylum and withholding of removal before the Executive Office for Immigration Review (“EOIR”), including outlining requirements for filing a complete application for relief and the consequences of filing an incomplete application, and establishing a 15-day filing deadline for aliens applying for asylum in asylum-and-withholding-only-proceedings, and clarifying evidentiary standards in adjudicating such applications. Further, the Department proposed changes related to the 180-day asylum adjudication clock. This final rule responds to comments received in response to the NPRM and adopts the NPRM with few changes.

DATES:

This rule is effective on January 15, 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. Background

A. Proposed Rule

On September 23, 2020, the Department published an NPRM that would amend EOIR's regulations regarding the procedures for the submission and consideration of applications for asylum, statutory withholding of removal, and protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). Procedures for Asylum and Withholding of Removal, 85 FR 59692 (Sept. 23, 2020). Through the NPRM, the Department proposed changes to 8 CFR parts 1003, 1208, and 1240 regarding completeness requirements for such an application, and the consequences of filing an incomplete application. Further, it proposed to establish a 15-day filing deadline for aliens applying for asylum

in asylum-and-withholding only proceedings and proposed changes to improve adherence to the statutory requirement that asylum applications be adjudicated within 180 days absent exceptional circumstances. The rule also proposed to clarify evidentiary standards in adjudicating such applications.

An application for asylum is also an application for statutory withholding of removal, 8 CFR 1208.3(b), and this rule clarifies that it is also an application for protection under the CAT. Moreover, as discussed, infra, the final rule contains provisions related to aliens seeking withholding of removal or CAT protection—but not asylum—in proceedings under 8 CFR 1208.2(c)(2). Thus, unless the context indicates otherwise, references to an asylum application in this final rule encompass references to statutory withholding of removal and protection under the CAT.

B. Authority

The Attorney General is issuing this final rule pursuant to the authority at sections 103(g) and 208(d)(5)(B) of the Immigration and Nationality Act (“INA” or “the Act”), 8 U.S.C. 1103(g) and 1158(d)(5)(B).

C. Final Rule

Following consideration of the public comments received, discussed below in section II, the Department has determined to publish the provisions of the proposed rule as final except for the changes noted in I.C.1 below and certain technical amendments. The rationale for those provisions that are unchanged from the proposed rule remains valid. 85 FR at 59693-97.

1. Filing Deadline for Aliens in Asylum-and-Withholding-Only Proceedings

The NPRM added a new paragraph (d) to 8 CFR 1208.4, but the final rule splits that paragraph into three parts, including adding a clarification regarding fee receipts in response to commenters' concerns. Paragraph (d)(1) of the final rule mirrors paragraph (d) in the proposed rule; it establishes an initial 15-day filing deadline for the submission of Form I-589, Application for Asylum and for Withholding of Removal, including applications for protection under the CAT, by aliens in asylum-and-withholding-only proceedings under 8 CFR 1208.2(c)(1) and 1208.4(b)(3)(iii). The 15-day period is calculated from the date of the alien's first hearing before an immigration judge and is subject to possible extension for good cause by the immigration judge. For aliens who do not file the application by the deadline set by the immigration judge, the immigration judge will deem the alien's opportunity to submit the application waived in the proceedings pending before EOIR, and the case will be returned to the Department of Homeland Security (“DHS”).

If the Form I-589 requires payment of a fee, this final rule at paragraph (d)(2) maintains the general requirement for applications and motions before EOIR: The alien must submit a fee receipt together with the application by the deadline set by the immigration judge. In response to commenters' concerns, however, this final rule adds a provision at paragraph (d)(3) to allow flexibility for aliens to meet the filing deadline when the aliens cannot meet all requirements due to no fault of their own. Accordingly, if the alien has not yet received a copy of the fee receipt from DHS in time to meet the Form I-589 filing deadline, the alien may instead provide the immigration court with a copy of the payment submitted to DHS when the alien submits his or her application to EOIR. Aliens who provide this alternative proof of payment must still provide a copy of the fee receipt. In such an instance, the fee receipt will be due by the deadline the immigration judge sets. If the immigration judge does not set a separate deadline for the submission of the fee receipt, the alien must submit the fee receipt within 45 days

of the date of filing the associated application.

The INA states both that a fee may be charged for an asylum application, INA 208(d)(3), 8 U.S.C. 1158(d)(3), and that the initial hearing on an asylum application occur within 45 days of filing the application absent exceptional circumstances, INA 208(d)(5)(A)(ii), 8 U.S.C. 1158(d)(5)(A)(ii). Thus—for an asylum application that requires a fee—because the application cannot be filed until the fee is paid and because a hearing cannot occur on the application until it is filed, the Department finds that the statutory scheme in INA 208, 8 U.S.C. 1158, contemplates that it is reasonable to expect an alien to have received a fee receipt within 45 days of filing the asylum application.

In addition, this final rule adds corresponding cross-references to 8 CFR 1003.8, 1003.24, 1003.31, and 1103.7 to account for this exception to the general requirement that any form or application that requires a fee must be submitted together with the fee receipt.

In response to a recommendation by a commenter, the Department is also amending 8 CFR 1208.4(d)(1) in the final rule to apply the 15-day deadline to applications for statutory withholding of removal and protection under the CAT for aliens in proceedings under 8

CFR 1208.2(c)(2). The Department sees no reason to distinguish between aliens subject to proceedings under 8 CFR 1208.2(c)(1) and those subject to proceedings under 8 CFR 1208.2(c)(2), as both groups are generally detained. Moreover, the reasons underpinning the application deadline for 8 CFR 1208.2(c)(1) apply with equal force to proceedings under 8 CFR 1208.2(c)(2). Accordingly, in response to the recommendation of at least one commenter, the final rule adopts the commenter's suggestion and edits the language in 8 CFR 1208.4(d)(1) to make the 15-day deadline, with the possibility of an extension for good cause, applicable to aliens in proceedings under 8 CFR 1208.2(c)(2) seeking statutory withholding of removal or protection under the CAT regulations.

Finally, the final rule makes a syntax change to the language in 8 CFR 1208.4(d)(1) to clarify that if an alien does not file an appropriate application by the deadline set by the immigration judge, the immigration judge shall deem the opportunity to file such an application waived, and the case shall be returned to DHS. The proposed rule included the phrase “for execution of an order of removal” after “DHS,” but that phrasing risks confusion because not every alien in proceedings under 8 CFR 1208.2(c)(1) is subject to an order of removal.

See, e.g.,

8 CFR 1208.2(c)(1)(iii) (VWP applicant for admission who is denied admission). Accordingly, the final rule deletes that phrase to make clear that in the circumstances of 8 CFR 1208.4(d)(1), the case will simply be returned to DHS, and DHS will take whatever subsequent action it deems appropriate.

2. Requirements for the Filing of an Application

The rule amends 8 CFR 1208.3(c)(3) regarding the requirements for filing a Form I-589, Application for Asylum and for Withholding of Removal, and the procedures for correcting errors in filed applications. These amendments apply to the submission of any Form I-589 before EOIR, including aliens in removal proceedings under section 240 of the Act, 8 U.S.C. 1229a, aliens in asylum-and-withholding-only proceedings under 8 CFR 1208.2(c)(1) and 1208.4(b)(3)(iii), and aliens in withholding-only proceedings under 8 CFR 1208.2(c)(2).

First, the rule specifies that the application must be filed in accordance with the form instructions and the general requirements for filings before the immigration court at 8 CFR 1003.24, 1003.31(b), and 1103.7(a)(3), including the payment of any required fee. The rule provides that an application is incomplete if, in addition to existing grounds, it is not completed and submitted in accordance with the form instructions or is unaccompanied by any required fee receipt (or alternate proof, as necessary).

Second, the rule further revises 8 CFR 1208.3(c)(3) by removing the current provision that deems an alien's incomplete asylum application to be complete if the immigration court fails to return the application within 30 days of receipt. Instead, the rule provides that immigration courts will reject all incomplete applications. Moreover, the rule adds a maximum of 30 days from the date of rejection for the alien to correct any deficiencies in his or her application. Under the rule, an asylum applicant's failure to re-file a corrected application within the 30-day time period, absent exceptional circumstances, shall result in a finding that the alien has abandoned that application and waived the opportunity to file such an application in the proceedings pending before EOIR.

Lastly, the rule updates language in 8 CFR 1208.3(c)(3) regarding incomplete asylum applications and potential work authorization, changing a reference to the “150-day period after which the applicant may file an application for employment authorization” to remove the specific time period to ensure that EOIR regulations do not contradict DHS regulations regarding employment authorization eligibility.

3. Clarification Regarding Immigration Judge Evidentiary Considerations

The rule clarifies what type of external materials an immigration judge may rely on under 8 CFR 1208.12 when deciding an asylum application, which includes an application for withholding of removal and protection under the CAT, or deciding whether an alien has a credible fear of persecution or torture pursuant to 8 CFR 1208.30, or a reasonable fear of persecution or torture pursuant to 8 CFR 1208.31. The rule allows immigration judges to rely on resources provided by the Department of State, other DOJ offices, DHS, or other U.S. government agencies. The rule also provides that immigration judges may rely on foreign government and non-governmental sources when the judge determines those sources are credible and the material is probative.

Additionally, the rule expands 8 CFR 1208.12 to allow an immigration judge, on his or her own authority, to submit probative evidence from credible sources into the record. The immigration judge may consider such evidence in ruling on an asylum application, including an application for withholding of removal and protection under the CAT, so long as the judge has provided a copy to both parties and both parties have had an opportunity to comment on or object to the evidence prior to the issuance of the immigration judge's decision.

4. Asylum Adjudication

The rule removes and reserves 8 CFR 1208.7, relating to obtaining work authorization from DHS, and 1208.9, relating to procedures for interviews before DHS asylum officers. The rule also amends 8 CFR 1003.10(b) to make clear that, in the absence of exceptional circumstances, an immigration judge shall complete adjudication of an asylum application within 180 days after the application's filing date.

The rule amends 8 CFR 1003.10(b) to provide a definition of “exceptional circumstances” for purposes of 1003.10(b), 1003.29, and 1240.6, and to clarify that the section's use of the phrase “exceptional circumstances” refers to those scenarios that are beyond the control of the parties or the immigration court.

Furthermore, the rule amends 8 CFR 1003.29 to specify that nothing in that section authorizes a continuance that causes the adjudication of an asylum application to exceed 180 days. Similarly, the rule revises 8 CFR 1003.31 to provide that the section shall not authorize setting or extending time limits for the filing of documents after an asylum application has been filed that would cause the adjudication of an asylum application to exceed 180 days. Consistent with INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii), both of these changes provide for an exception if exceptional circumstances as defined in 8 CFR 1003.10(b) apply. The rule also revises 8 CFR 1240.6 to include that the section does not authorize an adjournment that causes the adjudication of an asylum application to exceed 180 days in the absence of exceptional circumstances as defined in 8 CFR 1003.10(b).

5. Technical Amendments

The file rule adopts the proposal that any required fee be submitted by the time of filing, but further provides for cross-references to both 8 CFR 103.7 and 8 CFR part 106 to prevent confusion and ensure consistency regardless of how the litigation over the DHS rule

is resolved.

The final rule related to fees charged by USCIS for filing of an I-589 was preliminarily enjoined by two federal district courts prior to its effective date.

Immigrant Legal Resource Ctr.

Wolf,

No. 20-cv-

05883-JSW, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020);

Nw. Immigrant Rights Project

U.S. Citizenship & Immigration Servs.,

No. 19-3283 (RDM), 2020 WL 5995206 (Oct. 8, 2020). Although this final rule updates cross-references in EOIR's regulations to DHS's regulations to account for the USCIS rule's amendments of DHS's regulations, the USCIS fees remain governed by DHS's previous regulations while the aforementioned injunctions remain in effect. Because the ultimate resolution of the litigation challenging the DHS fee rule is unknown, this final rule amends EOIR's regulations to include cross-references to both the previous DHS regulations and the new regulations to ensure that the cross-references do not become inaccurate regardless of how the litigation is resolved.

In addition, this rule provides for technical amendments not addressed in the proposed rule. It corrects outdated references to “Service” to properly reference “DHS” in 8 CFR 1001.31(b). Similarly, it clarifies references to “withholding of removal” by referencing section 241(b)(3) of the INA in order to distinguish that form of protection from protection under the CAT. Additionally, for precision, it replaces references to the CAT with reference to 8 CFR 1208.16 through 1208.18. No substantive changes are intended by these amendments.

D. Effective Date

As noted above, this rule is effective on January 15, 2021.

Further, the Department clarifies herein the rule's mostly prospective temporal application. The provisions of the rule regarding the 15-day filing deadline for the submission of asylum applications apply only to asylum-and-withholding-only proceedings initiated after the effective date of the final rule. The provisions of the rule related to the I-589 completeness and filing requirements apply only to asylum applications submitted after the rule's effective date. Except as noted below, the provisions of the rule related to immigration judge evidentiary considerations apply to proceedings of any type initiated after the rule's effective date.

The rule incorporates the statutory requirement that “in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed.” INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii). That provision was enacted nearly 25 years ago and is currently in force. Moreover, EOIR reiterated its policy to comply with that statutory provision, including the legal conclusion that “good cause” is not synonymous with “exceptional circumstances,” over two years ago. EOIR Policy Memorandum 19-05,

Guidance Regarding the Adjudication of Asylum Applications Consistent with INA § 208(d)(5)(A)(iii)

(Nov. 19, 2018),

https://www.justice.gov/eoir/page/file/1112581/download.

Thus, the provisions of the rule relating to INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii) and continuances based on exceptional circumstances, which are already in effect by both statute and policy, apply to pending cases. These provisions are simply adoptions of existing law or, at most, clarifications of existing law. Accordingly, they do not have an impermissible retroactive effect if applied to pending cases.

See Levy

Sterling Holding Co., LLC,

544 F.3d 493, 506 (3d Cir. 2008) (“Thus, where a new rule constitutes a clarification—rather than a substantive change—of the law as it existed beforehand, the application of that new rule to pre-promulgation conduct necessarily does

not

have an impermissible retroactive effect, regardless of whether Congress has delegated retroactive rulemaking power to the agency.” (emphasis in original)).

Similarly, the rule incorporates principles established by binding precedent allowing—if not also requiring, in some instances—an immigration judge to submit evidence in an asylum adjudication.

See

85 FR at 59695 (collecting authorities, including

Matter of S-M-J-,

21 I&N Dec. 722, 729 (BIA 1997) (en banc)). Thus, the provisions of the rule relating to an immigration judge's submission of evidence, which are already in effect through binding precedent, apply to pending cases. These provisions are simply adoptions of existing law or, at most, clarifications of existing law and, thus, do not have an impermissible retroactive effect if applied to pending cases.

See Sterling Holding Co., LLC,

544 F.3d at 506.

Additionally, EOIR does not adjudicate—and has never adjudicated—applications for employment authorization documents (EADs) for aliens with pending asylum applications; rather, DHS does. 8 CFR 274a.13(a) (2020). Further, the settlement agreement applicable to the processing of asylum applications and EAD applications in

A.B.T.

U.S. Citizenship and Immigration Servs.,

No. CV11-2108-RAJ (W.D. Wash.) (“ABT Settlement Agreement”) expired in 2019, and EOIR has already announced that it will no longer provide aliens or their representatives with a copy of a 180-Day Asylum EAD Clock Notice.

See

EOIR Policy Memorandum 21-02,

Withdrawal of Operating Policies and Procedures Memoranda 13-03 and 16-01

(Nov. 6, 2020). Accordingly, the provisions of the rule deleting a regulation regarding EAD applications that is inapplicable to EOIR, 8 CFR 1208.7, will be effective on the effective date. Finally, and for similar reasons, the provisions of the rule deleting a regulation regarding asylum officers, 8 CFR 1208.9, that is inapplicable to EOIR—because asylum officers are employees of DHS, not EOIR—will be effective on the effective date.

II. Public Comments on the Proposed Rule

A. Summary of Public Comments

The comment period for the proposed rule ended on October 23, 2020. Of the 2,031 comments received, the majority were from individual and anonymous commenters. The minority of comments came from non-profit organizations, law firms, and members of Congress. While some commenters supported the NPRM, the majority of commenters expressed opposition to the rule, either in whole or in part.

In general, comments opposing the rule misapprehended its impact; misstated its contents; failed to recognize that significant portions of it merely incorporate longstanding law—from either statute or binding precedent—into the regulations, provided no evidence—other than isolated and often distinguishable anecdotes—to support broad claims of particular impacts; made unverified, speculative, and hypothetical generalizations that do not account for the case-by-case and individualized decision-making associated with adjudicating asylum applications; were inconsistent with applicable law, contrary to the Department's considerable experience in adjudicating asylum applications, or otherwise untethered to a reasoned basis; lacked an understanding of relevant law and procedures regarding asylum application adjudications or the overall immigration system; failed to engage with the specific reasons and language put forth by the Department in lieu of broad generalizations or hyperbolic, unsupported presumptions; or, reflected assertions rooted in the rule's failure to agree with the commenters' policy preferences rather than the identification of specific legal deficiencies or other factors the Department should consider. As the vast majority of comments in opposition fall within one of these categories, the Department offers the following general responses to them, supplemented by

more detailed, comment-specific responses below.

Many comments were also inconsistent, both internally and with other comments. For example, some comments posited that the rule focused too much on efficiency whereas others argued that the rule did not promote efficiency at all. Some comments asserted that immigration judges are “biased,” while others suggested that the Department should allow immigration judges to continue to set deadlines rather than providing deadlines through rulemaking or should even promote immigration judges to become judges under Article I of the Constitution. The Department has addressed all of these comments individually herein and acknowledges that inconsistencies make many of the comments even less persuasive.

In particular, the Department notes that many, if not most, commenters failed to engage with or acknowledge the existing law that informed the NPRM, much of which has been in existence for years with no noted challenges or expressions of concerns. For example, the provisions incorporating the statutory requirement that “in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed,” INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii), do not reflect any novel or recent legal development. That statutory provision was enacted nearly 25 years ago and is currently in force with no noted challenges since it was enacted. Moreover, EOIR reiterated its policy to comply with that statutory provision over two years ago, including the legal conclusion that “good cause” is not synonymous with “exceptional circumstances,” over two years ago. EOIR Policy Memorandum 19-05,

Guidance Regarding the Adjudication of Asylum Applications Consistent with INA § 208(d)(5)(A)(iii)

(Nov. 19, 2018),

https://www.justice.gov/eoir/page/file/1112581/download.

Similarly, the rule incorporates principles established by binding precedent allowing—if not also requiring, in some instances—an immigration judge to submit evidence in an asylum adjudication.

See

85 FR at 59695. In particular,

Matter of S-M-J-

has been binding for over 20 years, again with no noted challenge to it. Further, the rule, in multiple ways, reflects influence from longstanding existing regulations that have also not been the subject of challenge or concern.

See, e.g.,

8 CFR 1208.5(a) (“Where possible, expedited consideration shall be given to [adjudicating asylum] applications of detained aliens.”); 8 CFR 1208.5(b) (“An alien crewmember shall be provided the appropriate application forms and information required by section 208(d)(4) of the Act and may then have 10 days within which to submit an asylum application to the district director having jurisdiction over the port-of-entry. The district director may extend the 10-day filing period for good cause.”); 8 CFR 1208.3(c)(3) (“An asylum application that does not include a response to each of the questions contained in the Form I-589, is unsigned, or is unaccompanied by the required materials specified in paragraph (a) of this section is incomplete.”). Commenters did not persuasively explain—if they attempted to explain at all—why these well-established legal principles are inappropriate bases for the rule.

Most commenters failed to acknowledge the benefits of the rule, such as expeditious consideration of meritorious asylum claims by detained aliens. Indeed, commenters did not explain why it would be preferable for the Department not to expedite consideration of asylum claims, particularly those made by detained aliens, given the risks of faded memories and evidence degradation that adjudicatory delays invite. Relatedly, few, if any, commenters acknowledged or addressed the issue of how a delay in adjudication also makes it more difficult for aliens to obtain pro bono representation.

See, e.g.,

Human Rights First,

The U.S. Immigration Court, https://www.humanrightsfirst.org/sites/default/files/HRF-Court-Backlog-Brief.pdf

(last visited Dec. 4, 2020) (hereinafter “HRF Report”) (“In a February 2016 survey conducted by Human Rights First of 24 pro bono coordinators at many of the nation's major law firms, nearly 75 percent of pro bono professionals indicated that delays at the immigration court are a significant or very significant negative factor in their ability to take on a pro bono case for legal representation before the court.”). In short, commenters failed to put forth a persuasive argument for why the Department should not expeditiously consider asylum applications, especially for detained aliens with meritorious claims,

and the Department is unaware of any such argument that would outweigh the benefits in that regard in the rule.

To the extent that commenters tacitly acknowledged that most asylum claims are not meritorious and, thus, that such claims should not be expedited in order to allow aliens additional time in the United States, the Department finds such an argument hardly compelling. The Department recognizes and agrees with the Supreme Court's observation that “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”

INS

Doherty,

502 U.S. 314, 323 (1992). Any rationale for encouraging or supporting the dilatory adjudication of cases both is both inherently unpersuasive and wholly outweighed by the importance of timeliness and fairness—especially to detained aliens with meritorious claims—in adjudicating asylum applications.

Most, if not all, commenters opposed to the rule appeared to view its procedural changes wholly through a results-oriented lens such that a proposal that commenters speculatively believed would cause aliens to “win” fewer cases was deemed objectionable, even without evidence that such a result would follow. Such a view appeared to have been based on a tacit belief that aliens were entitled to specific outcomes in specific cases, notwithstanding the relevant evidence or law applicable to a case, and that the rule inappropriately required adjudicators to maintain impartiality in adjudicating cases rather than continuing to provide what commenters viewed as favorable treatment toward aliens. To the extent that commenters simply disagree as a policy matter that asylum cases should be adjudicated in a timely manner,

Doherty,

502 U.S. at 323 (“As a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”), or that the Department should take measures, consistent with due process, to ensure the timely completion of such cases, the Department finds such policy disagreements utterly unpersuasive.

Many, if not all, commenters failed to acknowledge the reality that no one rulemaking can cover every conceivable adjudicatory scenario. EOIR currently has over 570,000 asylum applications pending adjudication, and each one is subject to adjudication based on its own individual facts. Consequently, the Department cannot rule out the possibility that at least one claim will present an issue not contemplated by the rule, including a unique scenario posited by a commenter. Nevertheless, the rule is expected to cover most applications and contains appropriate safeguards—

e.g.,

extension of a filing deadline for good cause—that should adequately address any unique or unexpected situations.

Relatedly, many commenters criticized the Department for not providing more quantitative data in the NPRM, yet did not explain what type of data that is actually tracked would be appropriate, particularly to address unique or hypothetical scenarios put forth by commenters. The level of granularity presumed by commenters for hundreds of thousands of asylum applications does not exist, and even if it did, the Department could not be

expected to consider every speculative possibility presented by commenters. Moreover, the portions of the rule incorporating existing law—

e.g.,

the 180-day adjudication deadline, the authority of an immigration judge to submit evidence—are not dependent on data because the stem from already-binding authority.

Many commenters raised questions about the possibility of the Department issuing multiple final rules related to asylum in 2020. The Department acknowledges that it has proposed and finalized multiple rules in 2019 and 2020 but categorically rejects any assertions that it has done so for any sort of nefarious purpose. Each of the Department's rules stands on its own, however, and each includes explanations of its basis and purpose, while allowing for public comment. Further, the interplay and impact of all of the rules is speculative at the present time, particularly due to ongoing and expected future litigation, which may allow all, some, or none of the rules to ultimately take effect. Nevertheless, to the extent commenters noted some potential overlap or joint impacts, the Department regularly considers the existing and potential legal framework when a specific rule is proposed or implemented.

Regarding the interplay of this rule and other recent proposed and finalized rules, the Department notes that commenters generally focused on the Department's proposed joint rule with DHS from June 2020, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 36264 (June 15, 2020). According to commenters, that proposed rule, if implemented, would result in a significant number of aliens being subject to proceedings under 8 CFR 1208.2(c) and, thus, subject to the new 15-day filing deadline under this rule.

Although the Department does not dispute that by finalizing that proposed rule, there will be an additional category of aliens subject to proceedings under 8 CFR 1208.2(c) and, thus, subject to the new filing deadline under this rule, it does note that commenters' suggestion of the size of that category is both grossly speculative—because the number would depend on variables that cannot be accurately predicted such as new inflows of illegal immigration, the validity of any claims made by aliens in those inflows subject to the credible fear screening process, and DHS's exercise of prosecutorial discretion—and wholly outside the Department's control.

Commenters also posited that DHS's expansion of expedited removal authority would further increase the number of affected aliens subject to this rule.

See

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

see also United States

Chem. Found., Inc.,

272 U.S. 1, 14-15 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”). Moreover, they provide no principled basis for the Department to consider changes to the NPRM.

In sum, the Department issued the NPRM for the reasons given in order to ensure asylum claims are expeditiously considered, especially claims of detained aliens, to better effectuate statutory directives in the INA, to ensure authority is appropriately exercised, to ensure immigration judges consider only complete asylum applications and a developed record containing probative evidence from credible sources, and to promote impartial and timely adjudications consistent with the law. It did not do so for any nefarious purpose, nor did it intend for its procedural changes to have any substantive bearing on the outcomes of additional cases, which flow from the evidence and the law, not the Department's process. As discussed herein, nothing in the NPRM singles out specific populations of aliens, including unrepresented aliens,

nor do any of its changes fall disproportionately upon such groups in unacceptable manner. To the extent that commenters did not engage with the NPRM itself, provided unsupported assertions of fact or law, attacked, tacitly or explicitly, the motivations of the Department's adjudicators, or otherwise put forward suggestions based on their preferred results rather than an impartial and timely process, the Department declines to adopt those comments. Further, to the extent that commenters provided substantive analysis and raised important issues, the Department has considered all of them; however, on balance, except for changes noted above, it has determined that the policy and operational benefits of the rule expressed above outweigh all of the issues raised by commenters. Accordingly, although the Department has reviewed all comments received, the vast majority of them fall into the groupings outlined above, and few of them are persuasive for reasons explained in more detail below.

The Department has fully considered the possible impacts of this rule on the relatively small pro se population of aliens with asylum applications. As discussed below, however, the rule neither singles such aliens out for particular treatment, nor does it restrict or alter any of the many procedural avenues such aliens already have available to them in advancing their cases. Further, nothing in the rule inhibits the availability of pro bono counsel to assist such aliens as appropriate.

B. Comments Expressing Support

Comment:

Several commenters expressed general support for the rule and immigration reform. Commenters noted the need for regulatory reform given the delays in asylum adjudications. These commenters supported all aspects of the rule, which they stated would allow the Department to resolve cases in an expeditious manner. One commenter stated that the rule will increase efficiency and bring asylum and withholding regulations within the plain meaning and intent of the INA.

Response:

The Department agrees with the commenters that these regulatory changes will better support congressional intent and increase operational efficiencies.

C. Comments Expressing Opposition

1. Administrative Procedure Act: Concerns Regarding the Ability To Comment

Comment:

Many commenters objected to the Department's allowance of a 30-day comment period instead of a 60-day or longer period and requested an extension of the 30-day comment period. Commenters cited Executive Order 12866 and stated that a 60-day comment period is the standard period of time that should be provided for a complex rule like the NPRM.

Commenters stated that the 30-day comment period is an insufficient period of time for them to adequately consider and respond to the significance of the rule's proposed changes. Many commenters emphasized that the comment period is particularly inadequate given the broader context that DOJ independent and DHS and DOJ jointly have recently published a number of complex proposed rules on a wide range of immigration-related topics.

Commenters noted that the closeness of the comment periods for these rules and that, because the Departments have not yet issued final rules, commenters cannot accurately know the broader regulatory context for providing comment on the instant rule in a short period of time.

For example, commenters noted,

inter alia,

the following recent rulemaking actions: Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 FR 52491 (Aug. 26, 2020); Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 36264 (June 15, 2020).

Commenters also stated that the 30-day comment period is insufficient in the context of the COVID-19 pandemic, which, commenters explained, has strained commenters' ability to prepare comments due to unique childcare, work-life, and academic difficulties. Commenters noted examples of other Federal agencies that have extended comment periods due to the impact of COVID-19.

See, e.g.,

Bureau of Consumer Financial Protection, Debt Collection Practices (Regulation F); Extension of Comment Period, 85 FR 30890 (May 21, 2020).

Other commenters further noted that there was a Federal holiday (Labor Day) during the comment period or that natural disasters and wildfires have caused other personal difficulties that make the 30-day comment period particularly short for meaningful comment.

Some commenters stated that there is no need for urgency given the lengthiness of the immigration court process, delays due to COVID-19, and the effective closure of the border by the Centers for Disease Control and Prevention under Title 42 authority.

Other commenters explained that the

30-day comment period was particularly short as they were also working extra hours during the comment period to take action for clients in advance of the October 2, 2020 effective date for U.S. Citizenship and Immigration Services' (“USCIS”) new fees. U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 FR 46788 (Aug. 3, 2020).

See

Order Suspending the Right to Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists, 85 FR 65806 (Oct. 16, 2020).

Some commenters noted that DHS has provided 60-day comment periods for much less complex or significant items related to forms.

See, e.g.,

Agency Information Collection Activities; Extension, Without Change, of a Currently Approved Collection: Petition for U Nonimmigrant Status, 85 FR 58381 (Sept. 18, 2020).

Response:

The Department believes the 30-day comment period was sufficient to allow for meaningful public input, as evidenced by the 2,031 public comments received, including numerous detailed comments from interested organizations. The NPRM was comparatively short (seven full pages in the

Federal Register

plus parts of two other pages), it proposed to amend only nine paragraphs in all of chapter V of 8 CFR, and the issues it addressed were either already set by statute (

e.g.,

the 180-day adjudication deadline in INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii)), well-known to aliens and practitioners (

e.g.,

completing and filing an application), well-established as immigration court practices (

e.g.,

the setting of filing deadlines and the development of the record by an immigration judge), or the deletion of provisions that were practically inapplicable to EOIR (

e.g.,

former 8 CFR 1208.7 and 1208.9). Moreover, commenters generally did not explain what additional issues they would raise during a longer comment period, and the volume of comments—as well as their breadth—reflects an ample consideration of issues during the comment period. In short, there is no indication that the comment period was insufficient.

Additionally, to the extent that commenters referred to other proposed rulemakings as a basis for asserting the comment period should have been longer, their comparisons are inapposite. No other proposed rulemaking cited by commenters addressed small, discrete changes which relate to well-established provisions and with which aliens and practitioners have been quite familiar with for decades. In short, the Department acknowledges and has reviewed commenters' concerns about the 30-day comment period, but those comments are unavailing for all of the reasons given herein.

Similarly, contrary to commenters' assertions, there is no evidence that either the COVID-19 pandemic or the Labor Day holiday had any effect on the sufficiency of the 30-day comment period. To the contrary, the number of comments received, as well as their breadth, are strong evidence that the comment period was sufficient, particularly for a short NPRM that made few substantive changes. Employers around the country have adopted telework flexibilities to the greatest extent possible, and the Department believes that interested parties can use the available technological tools to prepare their comments and submit them electronically. Indeed, nearly every comment was received in this manner. Further, crediting the assertions of commenters would effectively preclude rulemaking by the Department for the duration of the COVID-19 outbreak, regardless of the length of the comment period. The Department finds no basis to suspend all rulemaking while the COVID-19 outbreak is ongoing. Similarly, commenters' assertions regarding Labor Day reflect an intent to impose a blanket rule that any comment period encompassing a Federal holiday should always be extended, but that position is not supported by law, policy, or practice. The Department acknowledges that particular commenters may have faced individual personal circumstances which created challenges to commenting, but that assertion is true of every rulemaking. Further, there is no evidence of a systemic inability of commenters to provide comments based on personal circumstances, and commenters' assertions appear to reflect a desire to slow the rulemaking due to policy disagreements rather than an actual inability to comment on the rule. Overall, the Department finds that neither the COVID-19 pandemic nor any other particular circumstances alleged by commenters limited the public's ability to meaningfully engage in the notice and comment period.

The Administrative Procedure Act (“APA”) does not require a specific comment period length,

see generally

5 U.S.C. 553(b)-(c). While it is true that Executive Order 12866 recommends a comment period of at least 60 days, no specific length is required. Rather, Federal courts have presumed 30 days to be a reasonable comment period length. For example, the D.C. Circuit has stated that “[w]hen substantial rule changes are proposed, a 30-day comment period is generally the shortest time period sufficient for interested persons to meaningfully review a proposed rule and provide informed comment.”

Nat'l Lifeline Ass'n

Fed. Commc'ns Comm'n,

921 F.3d 1102, 1117 (D.C. Cir. 2019) (citing

Petry

Block,

737 F.2d 1193, 1201 (D.C. Cir. 1984)).

Further, litigation has mainly focused on the reasonableness of comment periods shorter than 30 days, often in the face of exigent circumstances.

See, e.g., North Carolina Growers' Ass'n.

United Farm Workers,

702 F.3d 755, 770 (4th Cir. 2012) (analyzing the sufficiency of a 10-day comment period);

Omnipoint Corp.

FCC,

78 F.3d 620, 629-30 (D.C. Cir. 1996) (15-day comment period);

Northwest Airlines, Inc.

Goldschmidt,

645 F.2d 1309, 1321 (8th Cir. 1981) (7-day comment period). Here, the significant number of detailed public comments is evidence that the 30-day period was sufficient for the public to meaningfully review and provide informed comment.

See, e.g., Little Sisters of the Poor Saints Peter and Paul Home

Pennsylvania,

140 S. Ct. 2367, 2385 (2020) (“The object [of notice and comment], in short, is one of fair notice.” (citation omitted)).

Finally, commenters' comparisons to the time allowed for comment on changes related to forms are inapposite. By statute, the Paperwork Reduction Act (“PRA”) requires a 60-day comment period for proposed information collections like those referenced by the commenters. 44 U.S.C. 3506(c)(2)(A). In contrast, as explained above, there is no similar statutory requirement for the proposed rule itself. Overall, the Department disagrees that the comment period was too short or that commenters did not receive fair notice and an opportunity to respond.

Comment:

Some commenters accused the Department of engaging in “staggered rulemaking,” which, according to commenters, has made it impossible for them to adequately comment on the potential effect of this rule. According to commenters, several pending rulemakings could “radically alter” procedures before the EOIR. As such, commenters asserted that, without knowing which proposed rules will ultimately be published and how they might be altered in their final form, they are being forced to comment without being able to consider the full aggregate effect of all of the Department's proposed rules.

Response:

The Department did not purposefully separate its policy goals into separate regulations in order to prevent the public from being able to meaningfully review and provide comment and rejects any assertions to

the contrary. The Department acknowledges that it has proposed multiple rules in 2019 and 2020 but categorically rejects any assertions that it has done so for any sort of nefarious purpose. Each of the Department's rules stands on its own, includes explanations of their basis and purpose, and allows for public comment, as required by the APA.

See Little Sisters of the Poor Saints Peter & Paul Home,

140 S. Ct. at 2386 (explaining that the APA provides the “maximum procedural requirements” that an agency must follow in order to promulgate a rule). Further, the interplay and impact of all of the rules is speculative at the present time, both because many of them are not yet finalized and because of ongoing and expected future litigation, which may allow all, some, or none of the rules to ultimately take effect. Nevertheless, to the extent commenters noted some potential overlap or joint impacts, the Department regularly considers the existing and potential legal framework when a specific rule is proposed or implemented. Further, nothing in any rule proposed by the Department, including the one underlying this final rule, precludes the public from meaningfully reviewing and commenting on that rule. Moreover, even if all rules were in effect, the Department has concluded that the benefits of the instant rule discussed in the NPRM,

e.g.,

85 FR at 59693-98 and herein—as well as the benefits discussed in the other rules ultimately outweigh any combined impact the rules may have.

2. General Opposition

The majority of commenters opposed the rule, and many commenters expressed generalized statements of opposition, sometimes in overwrought and tendentious terms, that were not specifically related to the rule's substantive changes.

Comment:

Several commenters stated that the rule conflicts with American values and its deeply rooted policy of welcoming immigrants and refugees, which, commenters asserted, would damage the Nation's standing in the world. Moreover, a number of commenters stated that the rule is immoral, cruel, or the product of racist or other ill-intent. Other commenters expressed statements of admiration for immigrants or asylum seekers, such as commenters' belief that asylum seekers as a group contribute positively to the United States.

Response:

The rule is not immoral, cruel, motivated by racial animus, or promulgated with discriminatory intent. Instead, the rule is intended to help the Department better allocate limited resources in order to more expeditiously adjudicate meritorious asylum and statutory withholding of removal claims. For example, setting a 15-day deadline for asylum applications in asylum-and-withholding-only proceedings will help streamline the process by ensuring that immigration judges can adjudicate such claims expeditiously. Similarly, establishing a deadline by which an incomplete application must be returned will allow cases to be adjudicated in a timely and predictable manner. Likewise, the clarifications regarding what materials an immigration judge may consider will prevent time being wasted on from non-credible sources or material that is not probative.

Further, this rule is not representative of a particular value judgment regarding the contributions or relative merits of immigrants or asylum seekers in the United States. Instead, the rule is intended to increase overall efficiencies for the processing and adjudication of asylum applications before EOIR, which in turn would benefit asylum seekers by enabling individuals with meritorious claims to more quickly receive relief and gain stability in the United States.

Comment:

Similarly, many commenters expressed a belief that the rule was designed to make the asylum process more difficult and an attempt to severely limit immigration through asylum. Commenters stated that the rule erects needless barriers for those fleeing violence and persecution. Numerous commenters also asserted that the rule would virtually negate the United States' asylum system and turn immigration courts into deportation-focused entities, which would prioritize the deportation of asylum seekers rather than the fair adjudication of their claims. Several of the commenters suggested that the underlying motive behind the rule is a desire by the administration to end the ability of people to seek asylum in the United States. Likewise, many commenters stated that the rule would essentially lead to the denial of all asylum claims.

In addition, commenters also asserted that the rule would result in more backlogs in the immigration court system because more appeals would be filed.

Response:

This rule does not in any way “negate” the United States' asylum system, prevent aliens from applying for asylum, or prevent the granting of meritorious claims, contrary to commenters' claims. To the contrary, the changes make the asylum system more efficient and uniform, and will ultimately benefit those with meritorious claims. The Department agrees with commenters that asylum remains an important form of possible relief for individuals seeking protection, and notes that these changes are needed to better address the backlog of pending asylum cases and address current inefficiencies in the asylum system.

See, e.g.,

EOIR,

Adjudication Statistics: Total Asylum Applications

(July 14, 2020),

https://www.justice.gov/eoir/page/file/1106366/download.

In addition, this rule will help ensure that the system is more effective for those who truly have “nowhere else to turn.”

Matter of B-R-,

26 I&N Dec. 119, 122 (BIA 2013) (internal citations omitted).

Additionally, the Department rejects the assertion that this rule will lead to further backlogs. The Department has made or proposed numerous regulatory changes recently to address inefficiencies where appropriate, and this rule is another tool to do so.

See, e.g.,

Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 FR 52491 (Aug. 26, 2020) (proposed) (addressing inefficiencies in case adjudications at the Board of Immigration Appeals (BIA)); Expanding the Size of the Board of Immigration Appeals, 85 FR 18105 (Apr. 1, 2020) (interim rule) (adding two member positions to the BIA so that the BIA may more efficiently and timely adjudicate appeals); Organization of the Executive Office for Immigration Review, 84 FR 44537 (Aug. 26, 2019) (interim rule) (providing, in part, for more efficient disposition of cases through a delegation of authority); EOIR Electronic Filing Pilot Program, 83 FR 29575 (June 25, 2018) (public notice) (creating a pilot program to test an electronic filing system that would greatly improve immigration adjudication processing in the immigration courts and eventually the BIA). Overall, the Department believes that the rule will not exacerbate inefficiencies considering all changes in the aggregate. Moreover, commenters' prediction that more appeals will be filed because of the rule is purely speculative and ignores the case-by-case way in which asylum applications are adjudicated.

Comment:

Some commenters expressed concerns with the Department's exercise of authority and jurisdiction related to the rule. For example, commenters stated that Congress, not the Department, must be the entity to make the sorts of changes to the asylum procedures set out in the proposed rule. Commenters cited a variety of reasons why these changes are most appropriately the province of

Congress, including commenters' belief, as mentioned above, that the rule would effectively end or eliminate asylum availability and limit how many asylum seekers would get relief annually, the breadth of the changes in the proposed rule, and alleged inconsistencies between the Act and the rule. Commenters expressed a belief that changes as significant as those proposed should only be undertaken by Congress. Other commenters asserted that the Department should not amend its regulations in such close proximity to a presidential election.

Response:

To the extent that commenters intimated that the Department should adhere to laws passed by Congress regarding asylum adjudications such as INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii), which is incorporated into the rule, the Department agrees that it should effectuate the laws passed by Congress. Commenters are incorrect, however, that Congress, not the Department, must make the sorts of changes to the asylum procedures set out in the proposed rule. Both the proposed rule and this final rule are issued pursuant to the Attorney General's statutory authority provided by Congress.

See

INA 103(g) and 208(d)(5)(B), 8 U.S.C. 1103(g) and 1158(d)(5)(B). Despite commenters' statements, the provisions of the rule are consistent with the Act. Should Congress enact legislation that amends the provisions of the Act that are interpreted and affected by this rule, the Department will engage in future rulemaking as needed.

The Department also rejects commenters' argument that the Department's authority to engage in rulemaking is related to the relative timing of a presidential election. The APA already allows for democratic input in agency decision-making through the required notice and comment procedures.

See

5 U.S.C. 553(c). Moreover, the Supreme Court has stated that “an agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely on the incumbent administration's views of wise policy to inform its judgments.”

Chevron, U.S.A., Inc.

Natural Res. Def. Council, Inc.,

467 U.S. 837, 865 (1984). As such, it is irrelevant that the presidential election was set to occur in close proximity to the rule's publication and comment period. Further, there is no law suspending rulemaking within a certain period before a presidential election, and the American system of government does not generally countenance the cessation of work on important policies for an extended period of time, such as a presidential election cycle.

Comment:

Many commenters also expressed broad concern that the rule would erode aliens' due process rights in immigration court proceedings. Specifically, commenters asserted that the rule would diminish aliens' due process rights by rushing the asylum process and by making it more difficult for them to have enough time to obtain representation, pay fees, or gather records.

Response:

Commenters are incorrect that the rule will impede aliens' due process rights in the manner speculated by commenters. It should be noted that EOIR's mission remains “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws.” EOIR,

About the Office

(Aug. 14, 2018),

https://www.justice.gov/eoir/about-office.

In other words, the Department must balance fairness concerns with the countervailing need for efficiency and expeditiousness in EOIR proceedings. Although the rule changes timing and other procedural requirements, the rule does not deny due process to any alien. Due process in an immigration proceeding requires notice and a meaningful opportunity to be heard, neither of which are affected by this rule.

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.”). None of the changes in the rule limit aliens in immigration proceedings before EOIR from obtaining representation, presenting evidence, or applying for immigration relief such that it violates their due process rights.

3. Violates International Law

Comment:

Several commenters were concerned that the rule violates the United States' ostensible obligations under international law, citing the 1948 Universal Declaration of Human Rights (“UDHR”), the 1951 Convention relating to the Status of Refugees (“1951 Refugee Convention”), the 1967 Protocol relating to the Status of Refugees (“1967 Protocol”), and the CAT. Specifically, commenters asserted that the rule violates the international right to seek asylum, the principle of non-refoulement, and the international obligation to provide fair and efficient asylum procedures.

Commenters stated that the rule's provisions implementing a 15-day filing deadline, requiring an asylum application fee, and mandatorily rejecting incomplete applications violates the applicant's right to seek asylum and the United States' non-refoulement obligations. Commenters explained that the 15-day deadline was too short and would prevent asylum seekers from applying for asylum or accessing legal representation, thereby subjecting them to the possibility of return to a country where their life or freedom may be threatened. Commenters also stated that the 15-day filing deadline, when read in conjunction with the Department's other recently proposed asylum rules, would create a categorical bar to asylum for many asylum seekers in violation of the applicant's right to seek asylum.

Similarly, commenters stated that requiring an asylum application fee would prevent asylum seekers from applying for asylum and that the Department should include an income-based or other exception. Commenters noted that only three other countries impose an asylum fee but that even those countries allowed for exceptions. Commenters stated that requiring such a fee without an exception raises the risk of refoulement.

Commenters likewise argued that mandatorily rejecting incomplete applications would subject applicants to potential refoulement for even minor omissions, such as failing to complete a field on the Form I-589 that is not applicable to the applicant. One commenter noted that the 1951 Refugee Convention obligates countries to give applicants the benefit of the doubt, which should apply to minor errors or omissions on the form.

Lastly, commenters stated that the rule does not provide for fair and efficient procedures, which commenters explain are an essential element in applying the 1951 Refugee Convention and related international obligations. Commenters explained that implementing these standards includes providing a realistic opportunity for asylum seekers to have their claims developed, heard in full, and fairly decided. Commenters alleged that the 15-day filing deadline, the mandatory rejection of incomplete applications, the charging of asylum application fees, and the 180-day adjudication deadline are not fair procedures because they do not take into account the difficulties and needs of asylum-seekers, such as lack of English language skills, lack of counsel, unfamiliarity with the U.S. legal system, and the lasting effects of trauma, among others. Rather, commenters alleged that the changes appear to be intended to prevent asylum seekers from applying for relief.

Response:

This rule is consistent with the United States' obligations as a party

to the 1967 Protocol, which incorporates Articles 2 through 34 of the 1951 Refugee Convention. This rule is also consistent with U.S. obligations under Article 3 of the CAT, as implemented in the immigration regulations pursuant to the implementing legislation. These treaties are not directly enforceable in U.S. law, but some of their obligations have been implemented by domestic legislation and implementing regulations.

See INS

Stevic,

467 U.S. 407, 428 & n.22 (1984);

Al-Fara

Gonzales,

404 F.3d 733, 743 (3d Cir. 2005) (“The 1967 Protocol is not self-executing, nor does it confer any rights beyond those granted by implementing domestic legislation.”); Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Public Law 105-277, sec. 2242(b), 112 Stat. 2681, 2631-822 (8 U.S.C. 1231 note); 8 CFR 208.16(b) and (c), 208.17 and 208.18; 1208.16(b) and (c), 1208.17, and 1208.18. Similarly, the UDHR does not create enforceable obligations on its own.

Sosa

Alvarez-Machain,

542 U.S. 692, 734 (2004) (“But the [UDHR] does not of its own force impose obligations as a matter of international law.”).

The Department disagrees that this rule contravenes the UDHR's article stating that everyone has the right to seek asylum protections in other countries. The rule does not prohibit anyone from seeking asylum. Instead, the rule simply requires all applicants to comply with established filing requirements, including, for aliens in asylum-and-withholding-only proceedings, complying with delineated filing deadlines. Further, in the rare instances where an applicant has good cause to miss the filing deadline, the immigration judge may extend the filing deadline after considering the relevant facts.

Immigration laws should enable the granting of immigration relief or protection to eligible individuals, and the prompt removal of those who are ineligible. This revision will expedite the consideration of meritorious claims and help such aliens obtain relief quickly while similarly reducing the likelihood that those with non-meritorious claims will be able to remain in the United States for longer and substantial periods of time. It is in the national interest and is consistent with U.S. non-refoulement obligations that meritorious claims are granted as quickly as possible while unwarranted claims are similarly screened out expeditiously.

The Department disagrees with comments that the rule's requirement that the applicant must pay the required fee, if any, for submitting a Form I-589 for the purposes of asylum violates non-refoulement obligations.

Because the rule does not impose a fee for statutory withholding of removal or protection under the CAT regulations,

the rule would still be consistent with the provisions of the 1951 Refugee Convention, 1967 Protocol, and the CAT.

See R-S-C- v. Sessions,

869 F.3d 1176, 1188 n.11 (10th Cir. 2017) (explaining that “the Refugee Convention's non-refoulement principle—which prohibits the deportation of aliens to countries where the alien will experience persecution—is given full effect by the Attorney General's withholding-only rule”);

Cazun

Att'y Gen. U.S.,

856 F.3d 249, 257 & n.16 (3d Cir. 2017);

Ramirez-Mejia

Lynch,

813 F.3d 240, 241 (5th Cir. 2016);

Maldonado

Lynch,

786 F.3d 1155, 1162 (9th Cir. 2015) (explaining that Article 3 of the CAT, which sets out the non-refoulement obligations of signatories, was implemented in the United States by the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”) (Pub. L. 105-277, sec. 2242(b), 112 Stat. 2681, 2631-822 (8 U.S.C. 1231 note)) and its implementing regulations);

see also Make the Rd. New York,

962 F.3d at 618.

Response:

As an initial point, the number of aliens who may be placed in asylum-and-withholding-only proceedings is both speculative and unpredictable because a precise chain of events has to occur—involving, inter alia, international migration flows, the possibility of the exercise of prosecutorial discretion, and legal determinations by adjudicators—in order to reach that result, and those events, both discretely and especially in combination, cannot be predicted with any degree of precision; moreover, several links in that chain are wholly outside the Department's control.

See Home Box Office, Inc.

FCC,

567 F.2d 9, 35 n.58 (D.C. Cir. 1977) (per curiam) (“Moreover, comments which themselves are purely speculative and do not disclose the factual or policy basis on which they rest require no response. There must be some basis for thinking a position taken in opposition to the agency is true.”). For example, under the recently-finalized joint rule, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, signed by the Attorney General and the Acting Secretary of Homeland Security on December 2, 2020, the Department is unable to accurately predict the future number of aliens who would enter or seek to enter the United States illegally, be subjected to a credible fear screening by DHS, receive a positive credible fear determination by either DHS or an immigration judge, and, in turn, be placed into asylum-and-withholding-only proceedings. Similarly, DHS has autonomy over its own enforcement-related decisions and is tasked by Congress with “[e]stablishing national immigration enforcement policies and priorities.” Homeland Security Act of 2002, Public Law 107-296, sec. 402(5), 116 Stat. 2135, 2178 (codified at 6 U.S.C. 202(5)). Consequently, the Department has neither control over nor the means to predict how many aliens DHS may subject to expedited removal procedures as opposed to other enforcement options or the exercise of prosecutorial discretion. Thus, while the Department is aware that these other rules may have some impact on immigration proceedings relevant to this rule, the size and nature of that impact is speculative and unknowable because of intervening factors, namely levels of illegal immigration and DHS's exercise of its prosecutorial discretion authority. Moreover, even if that impact were predictable, the Department has determined, as a matter of policy, that

the benefits of the rule—

e.g.,

Moreover, assuming, arguendo, that other rules increase the number of aliens subject to asylum-and-withholding proceedings under 8 CFR 1208.2(c), the provisions of this rule would remain important to effectuate. As discussed,

supra,

aliens subject to proceedings under 8 CFR 1208.2(c) are generally subject to detention unless paroled by DHS. Both parties, especially in cases of aliens with meritorious claims, and the immigration courts have an interest in the expeditious consideration of asylum claims made by detained aliens. In fact, current regulations already provide for such expedited consideration, 8 CFR 1208.5(a), and commenters did not explain why detained aliens should not receive expedited consideration of their asylum claims nor challenge the application of 8 CFR 1208.5(a). In short, regardless of whether the rule is considered alone or in conjunction with other rules, it simply reaffirms the importance of well-established principles, namely adhering to statutory deadlines and providing expedited consideration of asylum claims for detained aliens, particularly for meritorious claims. Commenters' suggestions that the Department should depart from these principles are unpersuasive.

Furthermore, the Department's reasoning for the 15-day deadline does not rely on or involve the number of aliens who may be affected. In other words, the proposed rule at 85 FR 36264—nor the finalized rule, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, signed by the Attorney General and the Acting Secretary of Homeland Security on December 2, 2020—had no bearing on the reasoning underlying the deadline in the rule at hand. In the proposed rule, 85 FR at 59693-94, the Department explained that aliens in asylum-and-withholding-only proceedings are “generally already subject to removal orders, denials of applications for admission, or denials of permission to land in the case of crewmembers, and are often also detained . . . . [T]heir only avenues for relief or protection are applications for asylum, statutory withholding of removal, and protection under the regulations issued pursuant to legislation implementing U.S. obligations under the [CAT ] . . . and they would not be in asylum-and-withholding-only proceedings if they had not already claimed a fear of persecution or torture upon being returned to their home countries.” The Department subsequently concluded that because asylum and withholding of removal are the “sole issues to be resolved in the proceeding and are squarely presented at the outset of the proceeding . . . there is no reason not to expect the alien to be prepared to state his or her claim as quickly as possible.” 85 FR at 59694. In addition, the Department provided further reasoning for its decision to establish a deadline: Delayed filing risks delayed protection or relief for meritorious claims; delayed filing increases the likelihood that evidence may degrade or be lost; and applicants may simply delay proceedings, thus causing inefficiencies in what should be a streamlined proceeding.

See id.

The Department also noted that a deadline was consistent with current regulations establishing a 10-day deadline for detained crewmembers to file an asylum application, 8 CFR 1208.5(b)(1)(ii), and directing the agency to provide “expedited consideration” to asylum applications filed by detained aliens, 8 CFR 1208.5(a).

Id.

None of these factors relies upon or is altered based on the number of aliens subject to proceedings under 8 CFR 1208.2(c)(1).

The Department notes, however, that to the extent commenters argue more aliens will be in asylum-and-withholding-only proceedings and subject to the 15-day filing deadline in the future, such arguments further the Department's reasoning rather than counter it. In other words, the Department's concerns to ensure efficiency, accurate recall of claims, and avoiding gamesmanship are greater if more proceedings are benefited than fewer.

Comment:

Commenters claimed the rule's inclusion of the possibility of an extension of the filing period for good cause was disingenuous for several reasons. First, commenters claimed that case quotas and performance metrics would incentivize judges to deny requests for extensions. Second, commenters claimed that adjudicating an extension request, which takes time and effort from all parties involved, did not align with the Department's purported aims of streamlining the process.

Response:

As an initial point, immigration judges are not subject to any performance metric related to the length of a case adjudication; thus, whether they would grant an extension or not would have no bearing on any applicable performance measure.

Even if immigration judges were subject to a performance measure that was relevant to the rule, immigration judges are well aware that it is not appropriate to base continuance or extension decisions solely on case-completion goals.

See, e.g.,

Matter of L-A-B-R-,

27 I&N Dec. 405, 416-17 (A.G. 2018) (stating that it is inappropriate to base a decision on a continuance request solely on case completion goals). As discussed,

supra,

commenters' suggestions that immigration judges are biased or incompetent and will either ignore applicable law or will make decisions on factors other than the record and the law are not well-taken. The Department is confident that EOIR's immigration judge corps adheres to the highest levels of professionalism and will continue to apply their independent judgment and discretion, 8 CFR 1003.10(b), when evaluating good cause in relation to requests for extensions. Further, immigration judges regularly adjudicate requests for continuances as part of their duties, and there is no reason to expect that any new requests as a result of this rule would exacerbate the time required for adjudication of these motions.

Non-supervisory immigration judges are subject to a biannual performance work plan based on three elements and a combined total of fourteen sub-elements. A non-supervisory immigration judge's seven performance measures are one of six sub-elements of one of three job elements. Although one of the performance measures—

i.e.,

one of seven sub-sub-elements of one of six sub-elements of one of three elements—is a case completion goal, the establishment of a filing deadline has little correlation with how many cases an immigration judge may ultimately complete. Moreover, the failure to meet any performance measure does not automatically result in the lowering of an immigration judge's performance rating. For instance, for the rating cycle that concluded at the end of FY 2019, although not all non-supervisory immigration judges met the numeric performance measures, every non-supervisory immigration judge nevertheless received a performance rating of satisfactory for the job element encompassing those measures.

Comment:

Multiple commenters alleged that the extension for good cause was limited to 10 days and disagreed with a 10-day limit.

Response:

Commenters misread the rule. The extension for good cause is not limited to 10 days; rather, the immigration judge in his or her discretion determines the length of the extension.

ii. 15 Days Is Too Short

(1) Evidence-Related Concerns

Comment:

Commenters asserted that a 15-day deadline is an improper solution to the Department's evidence concerns because 15 days is insufficient to collect relevant evidence. Commenters explained that gathering evidence—including declarations, corroborating documents such as medical and police

reports, letters from witnesses, country conditions documentation, and reports from expert witnesses—and then paying for certain documents to be translated takes much longer than 15 days, especially considering that evidence may be located abroad or possessed by a foreign government.

Commenters stated that the government should have an interest in considering the complete facts of a claim. Commenters alleged, however, that immigration judges would not have all of the evidence before them for consideration because (1) aliens would be unable to submit evidence in such a short timeframe, or (2) the short deadline would rush aliens and inevitably cause contradictions or omissions in the evidence, thereby creating unnecessary false credibility issues.

Commenters explained that aliens who need or request more than 15 days are not trying to circumvent the immigration process; rather, those aliens seek to engage in the legal immigration process by gathering all relevant information and evidence for their claim, which commenters emphasized takes longer than 15 days. Further, commenters explained that aliens who unnecessarily delay their proceedings accept the risk of degradation or loss of evidence. Commenters stated that such concern should incentivize aliens to act efficiently but does not warrant a 15-day deadline.

Response:

As discussed,

supra,

commenters either misread the rule or misstated its contents. Nothing in the rule requires that all supporting evidence be submitted within 15 days. Nothing in the rule precludes amending or supplementing an application after it has been filed in accordance with existing regulations. Further, nothing in the rule requires an immigration judge to render a decision within 15 days or to schedule a hearing at any particular time, subject to the general deadline contains in INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii).

Similarly, commenters did not address why aliens in proceedings under 8 CFR 1208.2(c)(1), who are the one of the subjects of the rule, should not receive expedited consideration of their asylum claims because they are detained. The rule ensures that such aliens receive expedited consideration of their applications consistent with existing regulations, 8 CFR 1208.5(a), but it does not alter an alien's ability to submit evidence in support of an application.

The rule does not limit evidence-gathering to 15 days; rather, it requires the application and available supporting evidence to be submitted within 15 days of the alien's first hearing before the immigration judge.

See

8 CFR 1208.4(d) (“[T]he immigration judge . . . shall set a deadline of fifteen days from the date of the alien's first hearing before an immigration judge by which the alien must file an asylum application”). The Department believes the 15-day deadline appropriately balances the concern regarding risk of degradation or loss of evidence with the need to provide adequate time for preparation and the need to provide expedited consideration of the claims of detained aliens, especially those with meritorious claims.

The Department notes that the 15-day deadline begins from the date of the alien's first hearing with the immigration judge, which may not occur until several weeks after the alien was first encountered by DHS

and, in some cases, until after the alien has already resided in the United States for an extended length of time.

Thus, contrary to commenters' suggestions, aliens are not limited to a 15-day period to prepare an application or to gather evidence, and many aliens will have had a considerably longer period of time to prepare their claims. In fact, some aliens subject to the rule will have already filed an asylum application even before the 15-day deadline begins.

Compare

8 CFR 1208.2(c)(1)(i) (alien crewmembers subject to asylum-and-withholding-only proceedings before an immigration judge),

with

8 CFR 1208.5(b)(1)(ii) (requiring an alien crewmember seeking asylum to file the application with DHS first—and giving the alien ten days to do so, subject to an extension for good cause—before being placed in proceedings under 8 CFR 1208.2(c)(1)). Moreover, aliens in DHS custody who express a desire to seek asylum or a fear of return are provided an asylum application at that time,

and that expression necessarily occurs before an alien is placed in proceedings under 8 CFR 1208.2(c)(1) or (2) and before the alien's first hearing is subsequently scheduled. 8 CFR 208.5(a), 1208.5(a). Thus, aliens will always have had time beyond the 15-day deadline in order to complete the application, and few, if any, commenters acknowledged this additional time in their opposition to the rule.

As of October 23, 2020—and excluding aliens detained in the Institutional Hearing Program and the Migrant Protection Protocols program, detained aliens with competency issues, and detained UAC in the custody of the Department of Health and Human Services—the median time between the issuance of a notice to appear for a detained alien and the filing of a notice to appear with an immigration court is seven days, and the median time between the receipt of a notice to appear for a detained alien and that alien's first hearing is sixteen days. Thus, detained aliens will, on average, have 23 days before the 15-day deadline even begins to run, and commenters did not persuasively explain why 38 days, which is more than five weeks and may be extended due to good cause, is an insufficient amount of time for an alien to file an asylum application, especially for an alien who has recently made a claim of a fear of return to his or her country of nationality.

For example, aliens who have overstayed an authorized period of admission under the Visa Waiver Program (VWP) and later seek asylum under 8 CFR 1208.2(c)(1)(iv) may have already spent years in the United States prior to applying for asylum and, thus, will have already had ample time to prepare their case.

See, e.g.,

Matter of D-M-C-P-,

26 I&N Dec. 644, 644-45 (BIA 2015) (alien admitted under the VWP in 1999 but did not make an asylum claim in proceedings under 8 CFR 1208.2(c)(1) until 2011).

Although DHS does not have a duty to provide an asylum application to a detained alien pending a credible fear determination, it may do so upon request. 8 CFR 208.5(a). Thus, aliens may be able to obtain an asylum application even before a credible fear determination. Even in cases in which DHS does not provide an asylum application while a credible fear determination is pending, once a detained alien receives a positive credible fear determination—and, thus, may become subject to proceedings under 8 CFR 1208.2(c)(1)—DHS would provide an application at that point consistent with 8 CFR 208.5(a). Moreover, although it was not addressed by commenters, the Department notes that, in conjunction with DHS, it proposed a rule in June 2020 that was recently finalized, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, signed by the Attorney General and the Acting Secretary of Homeland Security on December 2, 2020, and—if it goes into effect,

see

note 12, supra—would explicitly codify this requirement and ensure that it applies to aliens in detention following the receipt of a positive credible fear determination. 85 FR at 36267 (“Additionally, to ensure that these claims [

i.e.,

asylum claims by aliens who have received a positive credible determination and are subject to proceedings under 8 CFR 1208.2(c)(1)] receive the most expeditious consideration reasonably possible, the Departments propose to amend 8 CFR 208.5 and 8 CFR 1208.5 to require DHS to make available appropriate applications and relevant warnings to aliens in its custody who have expressed a fear in the expedited removal process and received a positive determination.”). In short, all detained aliens subject to proceedings under 8 CFR 1208.2(c)(1) will have already received an asylum application before those proceedings commence and before the first hearing is even scheduled. Thus, aliens subject to the rule will actually receive more than 15 days to file an asylum application, even without an extension under 8 CFR 1208.4(d).

Additionally, the aliens affected by the 15-day filing deadline have necessarily already considered and made a claim for asylum or protection, either through the credible fear process or when faced with removal or the denial of an application for admission under other provisions. Accordingly, there is no reason to believe—and commenters did not provide one—that such aliens cannot memorialize the claim they recently made on an asylum application. To the contrary, the Department expects that aliens with meritorious claims will generally welcome the opportunity to have their

claims heard expeditiously by an immigration judge so that they may obtain protection and the benefits of asylum as quickly as possible.

The Department again emphasizes that the alien may also seek an extension of the filing deadline for good cause. 8 CFR 1208.4(d). Thus, in appropriate circumstances, an alien may receive an extension of the deadline in which to file an application, obviating the concerns connected to many of the hypothetical scenarios raised by commenters.

The Department also reiterates that aliens may amend or supplement the application later in proceedings, pursuant to an immigration judge's discretion. Accordingly, aliens and counsel are welcome to begin gathering evidence, including translating or coordinating delivery of certain documents as referenced by commenters, at any time and, subject to any separate filing deadlines set by the immigration judge, may submit additional supporting evidence as it becomes available.

The Department also notes that an alien's testimony alone “may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” INA 208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii). Thus, particularly for meritorious claims, an alien may not need extensive documentation to support his or her claim because an alien can meet the relevant burden of proof through credible, persuasive, and specific testimony. Commenters did not explain why aliens who would testify credibly, persuasively, and specifically would need lengthy amounts of time to file an application or to obtain supporting documentation, and the Department is unaware of any such reasons.

The deadline itself does not preclude an immigration judge's full consideration of the facts of a claim. Because applicants for asylum and for withholding of removal bear the full burden of proof,

see

INA 240(c)(4)(A), 8 U.S.C. 1229a(c)(4)(A) (asylum); INA 241(b)(3)(C), 8 U.S.C. 1231(b)(3)(C) (withholding of removal), the alien is responsible for ensuring that the immigration judge has all relevant facts to consider. If, for example, an alien needs additional time to file an application, the alien may request an extension for good cause. 8 CFR 1208.4(d). Likewise, if the application needs to be amended or supplemented later in the proceedings due to evidence-issues, the alien may request to amend or supplement the application. 8 CFR 1208.4(c). Similarly, nothing in the rule prohibits an immigration judge from granting a continuance to obtain corroborating evidence in appropriate cases.

Matter of L-A-C-,

26 I&N Dec. 516 (BIA 2015). Moreover, the rule itself provides that immigration judges themselves may submit relevant evidence consistent with their duty to develop the record in appropriate circumstances. Through these mechanisms, the Department provides aliens a full opportunity to present all relevant facts to an immigration judge within the deadline, and there is no reason why the establishment of a filing deadline for the application—as opposed to supporting documents—would necessarily create a credibility issue for the alien.

Although the rule referenced the possibility that, without a deadline, aliens may attempt to delay proceedings, the Department does not believe that is the case for all aliens, nor did the rule exclusively consider or rely on that point in establishing the deadline. For the reasons discussed above and in section II.C.4.a.iii, the Department established the deadline and believes 15 days is an appropriate timeframe in which an alien must file an application. The Department disagrees with the commenters' conclusion that evidence-related risks should simply incentivize aliens to reduce delays or else accept those risks. The impact of delayed proceedings reaches far beyond the alien's case; delays result in inefficiencies that affect the entire immigration system.

See generally

85 FR at 59694. In part for that reason, the rule established the 15-day deadline rather than rely on aliens responding to incentives or accepting the risks associated with delays.

(2) Events Outside of the Alien's Control

Comment:

Commenters argued that the 15-day filing deadline is too short in effect due to various circumstances outside of the alien's control that may preclude submission of the application within the required time period. Commenters explained that the U.S. Postal Service (“USPS”) or other carriers may be delayed. Relatedly, commenters said that aliens' documents may have been lost or stolen in transit to the United States.

Some commenters also alleged that DHS would seize documents at the border, such that aliens would no longer have them in their possession to include with an application for protection or relief.

Response:

As an initial point, the Department notes that filing delays and missing filing deadlines due to third-party carriers such as the USPS are already a possibility in the current system for considering asylum applications, and the rule does not alter that risk. The Department is also unaware of any systemic issues with third-party carriers delaying filings, and any isolated anecdotal instances identified by commenters are redressable through existing procedures such as a motion to accept an untimely filing. Immigration Court Practice Manual, ch. 3.1(d)(ii), (iii) (July 2, 2020).

Moreover, as discussed supra, most aliens subject to the filing deadline will be detained. Because detained hearings are generally expedited, there is a greater possibility that the alien will be able to file the application directly with the court and, thus, not need to rely on an outside carrier. Nevertheless, even in cases in which there is a legitimate carrier delay, nothing in the rule precludes an alien from filing either a motion to accept the untimely filing,

id.,

or an extension of the filing deadline, 8 CFR 1204.8(d).

In addition, the Department emphasizes that an alien may begin the application at any time. The 15-day deadline is merely 15 days from the date of the first hearing with the immigration judge; thus, aliens are not prohibited from beginning an application prior to the first hearing, nor are they limited to only a single 15-day period to gather evidence. As noted above, detained aliens will have already a copy of an asylum application from DHS prior to their first hearing before an immigration judge and, thus, will have had already more than 15 days to complete the application even without an extension.

The Department is unaware of any practice by DHS of routinely seizing documents from aliens at the border and failing to maintain or to return them, as appropriate. In the Department's experience, any documents seized from aliens that are not returned are maintained in DHS's administrative file on the alien and are available to the DHS attorney representing the agency before the immigration judge. Mechanisms for DHS to return documents to aliens in custody are substantially beyond the scope of the rule. Nevertheless, as officers of the court with an interest in justice in all immigration proceedings, the Department expects that DHS attorneys would submit any probative evidence in DHS's possession in the course of a proceeding under 8 CFR 1208.2(c)(1) or (2) and would ensure that no

misrepresentations are made to an immigration judge.

Comment:

Commenters explained that it usually takes USCIS three to five weeks to issue the receipt that the rule requires be attached to a “complete” application; thus, submitting a complete application within 15 days is impossible and outside of a practitioner's or alien's control.

Response:

The Department acknowledges the commenters' concerns regarding timing with USCIS to receive a fee receipt, although in the Department's experience, USCIS typically provides a one-day turnaround in issuing fee receipts and most receipts are issued within seven days. Moreover, USCIS allows electronic payment for some of its most common applications, USCIS,

Forms Available to File Online

(June 11, 2020),

https://www.uscis.gov/file-online/forms-available-to-file-online,

and the Department does not know whether USCIS intends to allow electronic payment for asylum applications if the injunction on charging a fee is lifted. Nevertheless, in response to commenters' concerns, the Department has amended 8 CFR 1208.4(d) and related cross-references to that regulation to allow for submission of alternative proof of payment in the event that an alien has not received a fee receipt from USCIS within the filing deadline.

See

section I.C.1 for further discussion regarding this change.

(3) Concerns Related to the Complexity of the Form I-589

Comment:

Commenters argued that the 15-day filing deadline is too short due to the complexity of the Form I-589 and most applicants' lack of English-language proficiency. Commenters explained that aliens must usually find a translator, interpreter, and counsel to fill out the form and prepare certain documents. Commenters alleged that this process often takes weeks but that such assistance is crucial.

Response:

Again, the Department notes that regulations have contained a 10-day application filing deadline for many years for a particular category of asylum seekers, with no noted opposition or complaints, including concerns about the complexity of the form or its requirement to be completed in English. 8 CFR 1208.5(b)(1)(ii). Further, as discussed above, the rule provides an alien an opportunity to request an extension of the deadline if the alien needs additional time to complete the form. Additionally, most aliens with pending asylum cases, 85 percent, have representation, and an alien's representative can assist with completing the application or, as appropriate, requesting an extension of the filing deadline. EOIR,

Current Representation Rates

(Oct. 13, 2020),

https://www.justice.gov/eoir/page/file/1062991/download.

As discussed,

supra,

in practice, aliens subject to the rule will have additional time beyond 15 days to complete an asylum application, even without an extension, and the Department disagrees with commenters that the Form I-589 is too complex for aliens to complete within weeks. The substantive portion of the Form I-589 is currently eight pages, half of which call for biographic information and half of which request information about the alien's claim.

Tens of thousands of aliens—and hundreds of thousands in recent years, EOIR,

Total Asylum Applications

(Oct. 13, 2020),

https://www.justice.gov/eoir/page/file/1106366/download

—whose first language is not English file for asylum every year, and there is simply no indication that applicants cannot complete the application and file it within a few weeks.

In short, although the Department acknowledges the commenters' concerns and has fully considered, they are ultimately unpersuasive.

If the recent joint rulemaking, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, signed by the Attorney General and the Acting Secretary of Homeland Security on December 2, 2020, goes into effect, the substantive portion of the Form I-589 will increase to thirteen pages, though only nine of those pages call for information about an alien's claim.

The Department also notes there is a plethora of information regarding asylum available to aliens in multiple languages from pro bono or nonprofit organizations or from international organizations. For example, the UNHCR maintains a Spanish-language translation of the instructions for the

Form I-589, https://www.unhcr.org/585ae89c4.pdf

(last visited Dec. 4, 2020), and multiple advocacy organizations within the United States, including ones affiliated with commenters opposing the rule, have created Spanish-language versions of the form itself,

e.g.,

Immigration Justice Campaign,

I-589

in Spanish,

https://immigrationjustice.us/get-trained/asylum/application-declaration-evidence/sample-i-589-in-spanish/

(last visited Oct. 31, 2020). Although non-English versions of the I-589 are not official, they reflect a much greater availability of information to asylum seekers in languages other than English—and thus a greater capacity to complete the form in a timely manner—than most commenters acknowledged.

The Department believes the 15-day deadline provides sufficient time for the alien, in coordination with counsel, an interpreter, or translator if the alien so chooses, to apply for relief, particularly because the actual deadline will be more than 15 days in practice and because an alien may request an extension as appropriate. Further, the Department reiterates that the 15-day timeframe begins from the date of the first hearing before the immigration judge. An alien is not precluded from beginning the application or seeking assistance from counsel, an interpreter, or a translator to prepare the application before the first hearing.

(4) Concerns Related to Aliens' Personal Circumstances and Challenges

Comment:

Commenters also explained that aliens often have limited financial resources, are usually uneducated or even illiterate, have experienced trauma, and are in need of mental health resources. Considering those facts, commenters explained that 15 days was especially insufficient to secure representation or complete the form on their own, let alone pay the filing fee.

Response:

For many of the same reasons noted above, the Department finds these concerns to be both gross generalizations and unpersuasive. The Department does not have data—and commenters did not provide any—and, thus, declines to agree with a blanket characterization that most aliens applying for asylum are illiterate or in need of mental health treatment. Further, commenters raising these issues did not engage with,

inter alia,

the existence of a longstanding 10-day deadline for filing an asylum application for a particular category of applicants, 8 CFR 1208.5(b); the availability of an extension of the 15-day deadline for good cause; the fact that most aliens applying for asylum are represented; the fact that all aliens subject to the rule will, in reality, have more than 15 days to file the application; the demonstrated ability of approximately 200,000 aliens to file for asylum in FY 2019 and FY 2020; the desire of aliens with meritorious claims to have those claims adjudicated quickly; the longstanding regulatory directive to complete asylum cases of detained aliens expeditiously; and, the risks associated with needless delays in asylum adjudications, including the degradation of evidence. To the extent that commenters posited hypothetical scenarios about particular characteristics of aliens, the Department notes that if such scenarios are reflected by actual applicants, then the immigration judge can consider whether any of the factors referenced by the commenters warrant an extension of the filing deadline.

(5) Concerns That the Deadline Is Too Short for Preparation by Counsel

Comment:

Commenters explained that even if an alien was able to timely hire counsel, counsel would need more than 15 days to prepare and submit the

application. Commenters provided examples of common challenges faced by counsel when working with detained aliens, which they claimed have only been exacerbated by the pandemic. Examples include: Difficulty in arranging meetings with aliens at detention centers, especially with pandemic-related restrictions on visitors; difficulty in securing interpreters; and gathering evidence. Many commenters explained that representation made a significant difference to the likelihood of aliens' success.

Commenters also stated that the 15-day period is too short of a time period to prepare a sufficient application that is sufficiently thorough to meet the higher burden of proof required for success on the application as opposed to the lower standard for credible fear reviews. Commenters explained that the rule failed to acknowledge the difference between the burden of proving “significant possibility” of succeeding on an asylum claim required to establish credible fear and the burden of proving every element of an asylum claim under

Matter of A-C-A-A-,

28 I&N Dec. 84 (A.G. 2020). Relatedly, other commenters claimed the rule's reasoning that “there is no reason not to expect the alien to be prepared to state his or her claim as quickly as possible,” 85 FR at 59694, improperly conflated the significant possibility standard used in the credible fear interview with the preponderance of the evidence standard used at the hearing. Commenters explained that the distinction between these standards—one imposing a reduced burden while the other imposed a greater burden that requires a fully developed record to satisfy all elements of the claim—demonstrates that aliens who satisfy the lesser burden are not necessarily ready to satisfy the greater burden in such a short timeframe. In short, given the increased burden of proof, commenters stated that 15 days would be far too short to prepare the application, despite the alien having met the lesser burden of proof in the credible fear interview.

Response:

Again, commenters either misread or affirmatively misstated the contents of the rule. Nothing in the rule limits the alien, or the alien's representative, to a single 15-day period to prepare the application; rather, the application must be submitted within 15 days of the alien's first hearing before the immigration judge. Thus, the alien will have more than 15 days to prepare the application, an alien or the alien's representative may begin to prepare the application or gather evidence at any time, the alien may seek an extension of the filing deadline as appropriate, and the alien may supplement the application consistent with existing regulations. To the extent that commenters raise concerns that COVID-19 has created or exacerbated logistical challenges for representatives, the Department notes that cases of detained aliens, such as those who are subject to the rule, have generally been heard during the pandemic to avoid raising significant questions about prolonged detention and that DHS has made arrangements to ensure unimpeded communications between aliens and representatives.

See, e.g.,

Nat'l Immigration Project of Nat'l Lawyers Guild

Exec. Office for Immigration Review,

456 F. Supp. 3d 16, 22-23 (D.D.C. 2020) (summarizing DHS actions taken to ensure communication between detained aliens and representatives continue during the outbreak of COVID-19). In isolated instances in which communication between a representative and a detained alien has been interrupted due to COVID-19, the Department reiterates that the rule provides for an extension for good cause, 8 CFR 1208.4(d).

The Department did not conflate the burdens of proof in credible fear interviews and the merits of asylum adjudications. The Department recognizes the distinction between the burdens of proof in the interview and the hearing but believes the rule's timeframe is sufficient for aliens to file their application and meet the requisite burden of proof.

See

INA 240(c)(4)(a), 8 U.S.C. 1229a(c)(4)(A) (burden of proof for asylum); INA 241(b)(3)(C), 8 U.S.C. 1231(b)(3)(C) (burden of proof for withholding of removal). The Department referenced the interview in the proposed rule simply to demonstrate that aliens who pass the credible fear interview are on notice of their eligibility for various forms of relief or protection, that such aliens would logically be expected to want to perfect an application for asylum and soon as possible thereafter, and that it is not unreasonable to expect an alien who has passed a credible fear screening to be anticipating and preparing for consideration of their ultimate application for asylum, including the preparation of their application and gathering of evidence, especially if the alien's claim is meritorious.

(6) The 15-Day Filing Deadline Will Limit the Availability of Low Cost or Pro Bono Legal Services

Comment:

Commenters alleged that the 15-day deadline would put undue pressure on services funded by local governments, as well as nonprofit organizations and pro bono volunteers, including clinics and law students, to assist aliens with their applications in an effort to reduce the likelihood that applications would be rejected. Commenters specifically asserted that the deadline would interfere with local government investments into funding legal service providers, specifically such providers' case management processes. Relatedly, commenters explained that the deadline would require nonprofit organizations and clinics to substantially change their operations and would limit the number of aliens they could assist. For example, because students working in law clinics take a full course load in addition to taking a pro bono case, commenters explained that they would be unable to devote the hours necessary to meet the 15-day deadline, thus preventing them from taking cases, which in turn would harm aliens who rely on such assistance.

Response:

For all of the reasons previously given—including,

inter alia,

the existence of a longstanding 10-day deadline for a particular category of asylum applicants with no noted effects on low cost or pro bono representation, the similar longstanding existence of immigration judge authority to set deadlines for filing applications for relief, the availability of an extension of the 15-day deadline for good cause, the desire of aliens with meritorious claims to have those claims adjudicated quickly, the longstanding regulatory directive to complete asylum cases of detained aliens expeditiously, and, the risks associated with needless delays in asylum adjudications, including the degradation of evidence—the Department believes that a general 15-day filing period, while providing for exceptions where the immigration judge finds good cause, strikes the appropriate balance between expediency and fairness and would not impact the availability of low cost or pro bono representation. To the contrary, ensuring that detained aliens file an asylum application expeditiously may help ensure that a law school clinic can assist the alien before a student completes the clinical course or graduates.

Cf.

Registry for Attorneys and Representatives, 78 FR 19400, 19404 (Apr. 1, 2013) (declining to require law students to register with EOIR due to, among other things, “the transient nature of law students' participation in clinical programs and the limited circumstances under which students can represent individuals before EOIR . . . . the absence of any mechanism to inform EOIR when a student leaves a program . . . [and the lack of a]

regulatory provision permitting a law student to appear before EOIR if not enrolled in a `legal aid program or clinic,' [making] it . . . problematic for those students to remain registered after leaving a clinical program”). Similarly, because lengthy delays in immigration proceedings often dissuade pro bono representation, ensuring expeditious consideration of asylum applications filed by detained aliens may encourage more pro bono representation.

See, e.g.,

HRF Report

supra.

To the extent that commenters posited hypothetical scenarios about particular low cost or pro bono service providers or particular types of aliens, the Department notes that if such scenarios are reflected by actual applicants, then the immigration judge can consider whether any of the factors referenced by the commenters warrant an extension of the filing deadline.

Further, nothing in this rule requires the diversion of resources or alteration of the mission of any low cost and pro bono legal service providers, including nonprofit organizations, pro bono volunteers, clinics and law students, and government-funded representatives, beyond what is already required by existing regulations and professional responsibility requirements. In other words, immigration judges already possess the authority to set application filing deadlines, 8 CFR 1003.31(c), and asylum cases of detained aliens are already subject to expeditious processing, 8 CFR 1208.5(a). Further, practitioners are already prohibited from taking on more work than they can handle competently. 8 CFR 1003.102(q)(1). Thus, pro bono organizations already operate under the conditions outlined in this rule, and commenters did not identify any changes that the rule itself would require that are independent of longstanding and well-established regulatory requirements.

Furthermore, the Department believes that low cost and pro bono legal service providers, including nonprofit organizations, pro bono volunteers, including clinics and law students, and government-funded representatives, can meet this deadline, absent situations in which the deadline may be extended for good cause. Given the alien's already-limited available avenues for relief, the common goal of providing relief or protection to aliens with meritorious claims as quickly as possible, and the risk of loss or degradation of evidence with the passing of time—none of which were challenged by commenters, including low cost and pro bono organizations themselves—the Department believes it is prudent to establish the 15-day deadline. Although the Department acknowledges that nonprofit organizations, pro bono volunteers, and government-funded representatives, like all legal representatives, may face unforeseen challenges confronting deadlines set by a judge, the Department is confident that such representatives will be able to handle such deadlines, just as they do in other courts and just as they handle all regulatory changes inherent across government agencies, and will continue to be able to provide assistance and resources to aliens in proceedings before EOIR.

Finally, the Department notes that nothing in the rule prohibits nonprofits, pro bono groups, local government-funded representatives, or any other class of representatives from taking on an alien's case at a later point in the proceedings. An alien who obtains counsel may choose a representative at any point in the proceedings, including after the filing of an application, and the ability to provide representation does not require assistance from the very first hearing. Thus, low cost or pro bono organizations, local government-funded representatives, and law school clinics realistically have more opportunities to provide assistance that many commenters suggested.

iii. 15-Day Deadline Is Arbitrary

(1) In General

Comment:

Commenters generally characterized the 15-day deadline as being arbitrarily short. Commenters expressed concern that the Department failed to include specific data regarding the selection of 15 days as the specific deadline for filing an asylum application in asylum-and-withholding-only proceedings rather than some other period of time. Commenters alleged that the Department's reasoning for the deadline conflated efficiency with speed.

Commenters also stated that the deadline was arbitrary because the Department's reasoning was flawed: Commenters stated the application process and the adjudication process were distinct from one another with separate time periods. Thus, commenters alleged that changing the time limit for the application process would not affect the separate period of time required for adjudication.

Response:

The Department disagrees that the 15-day deadline is arbitrary, unrealistic, or unjust. First, the current regulation at 8 CFR 1208.5(a) directs that “[w]here possible,

expedited

consideration shall be given to applications of detained aliens” (emphasis added). The Department believes that establishing a deadline will better provide expedited consideration for aliens described in 8 CFR 1208.2(c)(1) and 1208.4(b)(3)(ii). Second, and relatedly, EOIR has had a longstanding policy of allowing asylum merits hearings for detained aliens to be scheduled within 14 days of a master calendar hearing with no noted objections or problems with that policy.

See, e.g.,

EOIR Operating Policies and Procedures Memorandum (“OPPM”) 00-01,

Asylum Request Processing

at 8 (Aug. 4, 2000) (“Generally, when setting a case from the Master Calendar to the Individual Calendar, a minimum of 14 days should be allowed before the case is set for the Individual Calendar.”); EOIR OPPM 13-03,

Guidelines for Implementation of the ABT Settlement Agreement

at 6 (Dec. 2, 2013) (“Generally, when setting a detained [asylum] case from a master calendar hearing to an individual calendar hearing, a minimum of 14 days should be allowed.”).

Because—for over two decades with no noted challenge—the Department has found two weeks a potentially sufficient amount of time to prepare a case for a merits hearing on a detained alien's asylum application, it finds that 15 days is similarly a sufficient time to simply file the application, particularly because, as discussed, supra, the alien will actually receive more than 15 days to do so. Third, in determining an appropriate deadline, the Department considered the current regulation establishing a 10-day deadline for detained crewmembers to file an application for asylum. 8 CFR 1208.5(b)(1)(ii). Because detained crewmembers are listed in the regulation at 8 CFR 1208.2(c)(1) as a class of aliens subject to asylum-and-withholding-only proceedings, the Department determined it was appropriate to set a comparable deadline for other classes of aliens subject to asylum-and-withholding-only proceedings included in 8 CFR 1208.2(c)(1), as well as aliens subject to withholding-only proceedings under 8 CFR 1208.2(c)(2).

Although OPPM 13-03 has been rescinded because the ABT Settlement Agreement expired in 2019, EOIR maintains a policy of providing at least 14 days between a master calendar hearing and an individual hearing on an asylum application for detained aliens.

Regarding commenters' concerns about the lack of supporting data, the Department notes first that because each asylum application is adjudicated on a case-by-case basis and each application will vary accordingly in its facts and support, there is no common metric for determining how long it will typically

take an alien to fill out and submit a Form I-589 because there is not a “typical” asylum case. Thus, the data suggested by commenters is not available and is untraceable due to the inherently fact-specific nature of each case. Moreover, commenters did not suggest that such data was available or could be obtained. To the extent that the PRA, 44 U.S.C. 3501

et seq.,

offers data and a potential metric for completing and submitting an asylum application, the Department notes that—in contrast to commenters' concerns—it supports an even quicker deadline than that proposed by the Department.

See Form I-589 Instructions

at 14 (Aug. 25, 2020),

https://www.uscis.gov/sites/default/files/document/forms/i-589instr.pdf

(providing a response time of 12 hours, “including the time for reviewing instructions, and completing and submitting the form”).

As discussed, the provision of the rule setting a deadline follows from well-established comparable regulations or policies and is not intended to turn on data. Nevertheless, even if it were, the best available data regarding the time it takes to complete the Form I-589—

i.e.,

the PRA determination—supports the deadline chosen by the Department.

If the recent joint rulemaking, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, signed by the Attorney General and the Acting Secretary of Homeland Security on December 2, 2020, goes into effect, the response time for the Form I-589 will increase to 18.5 hours. That length of time to complete the application would still support the Department's position that between 15 and 38 days—if not longer based on extensions due to good cause—is sufficient time to complete the Form I-589.