The Departments of Justice (DOJ) and Homeland Security (DHS) jointly propose to change regulations governing procedures for determining whether nationals of other countries who seek to enter the United States (“aliens”) will be granted asylum or withholding of removal, and review of such persons’ assertions that they have “credible fear” of persecution or torture should they return to their countries of origin.  Generally, the proposed new rules would have the twin effects of (1) “streamlining” procedures by substantially cutting back on the rights or opportunities of applicants for asylum and withholding of removal to have full immigration court hearings on their claims and to pursue appeals of denials; and (2) reducing the number of cases in which asylum is granted or removal from the United States is withheld, by making standards for grant of such relief more difficult to meet.  Unfortunately time is short — comments on the proposed new rules are currently due no later than today, July 15, 2020, at 11:59 PM Eastern Time; so we hope you will read this post promptly and be able to formulate your views in short order.

Background — Asylum and Withholding of Removal Proceedings Under Current Regulations:

Under current law and regulations, a foreign national (“alien”) who attempts to enter the United States without valid documentation establishing his or her eligibility for and right to legal entry (or who has attempted to procure US admission through fraud or misrepresentation) is subject to expedited removal from the country, without a hearing before an immigration judge.  However, if the alien expresses an intent to apply for asylum, or claims that he/she fears persecution, loss of life or freedom, or torture if returned to his/her country of origin, that individual is interviewed to determine whether that fear is “credible.”  If the alien can demonstrate to the interviewing Immigration Officer’s satisfaction that the alien has a “credible fear” of persecution in his/her home country due to race, religion, nationality, political opinion, or membership in a particular social group (i.e., persecution of the kind qualifying the potential victim for refugee status or grant of asylum), or has a credible fear of losing life or freedom in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion (potential grounds for withholding of removal independent from determination of an asylum claim), or torture at the hands of an official acting on behalf of the state in that home country, the individual is then put into removal proceedings. These proceedings consist of a trial-type evidentiary hearing before an Immigration Judge, at which the alien can attempt to show that he/she is eligible for and should be granted asylum or withholding of removal, or is entitled to withholding of removal based on protection under the international Convention Against Torture (“CAT”).  (Withholding of Removal means the alien might still be removed from the United States, but would not be removed or deported to the country in which he/she fears being subjected to torture). An adverse determination in removal proceedings before an Immigration Judge can be appealed to the Board of Immigration Appeals (BIA); and a decision of the BIA can be further appealed to a federal court.

Brief Summary of the Proposed New Rules:

Generally, the proposed new rules would have the twin effects of (1) “streamlining” procedures by substantially cutting back on the rights or opportunities of applicants for asylum and withholding of removal to have full immigration court hearings on their claims and to pursue appeals of denials; and (2) reducing the number of cases in which asylum is granted or removal from the United States is withheld, by making the standards for grant of such relief more difficult to meet.  DOJ and DHS propose to amend the regulations governing credible fear determinations so that the credible fear standard itself would be more difficult to meet, and individuals found to have such a fear will have their claims for asylum, withholding of removal, or protection under the CAT adjudicated by an immigration judge in streamlined proceedings, that need not necessarily be full evidentiary hearings and would be more narrowly focused than the generic removal proceedings presently conducted in such cases.  Moreover the standard of review to be applied in such streamlined proceedings would be clarified and made more stringent, along with various other standards and criteria impacting on the success of asylum, withholding of removal, and CAT protection claims.

The Agencies’ Justification for Their Proposed New Rules:

The essential rationale of the DOJ and DHS is that the proposed regulatory changes would accomplish the necessary goals of clearing out the huge, existing backlog of applications for asylum and withholding of removal; conserving badly stretched US immigration system resources; and preventing would-be immigrants who have no legal right to enter the United States from clogging up the system and delaying their deportation, removal, or exclusion from the country through assertion of baseless applications for asylum or withholding of removal.

Significant Aspects of the Proposal:

The Notice of Proposed Rulemaking is lengthy (166 pages), and sets out a long list of proposed regulatory revisions.  Among other seemingly less significant and/or controversial changes to existing regulations and procedures, the proposed new rules would :

  •    Streamline the asylum application process in a manner that would prevent most applicants from being entitled to a full court proceeding on their claims.
  •    Alter the current procedural structure in which an alien who establishes credible fear is entitled to a full hearing before an immigration judge in removal proceedings under Section 240 of the Immigration and Nationality Act (INA).  The proposed regulations would create distinct and more limited Immigration Court proceedings, solely focused on asylum and/or withholding of removal.
  •   Enable lower-level immigration officers to make a threshold determination that an application is “frivolous,” thereby denying the applicant a hearing before an Immigration Judge.
  •    Redefine “frivolous” to encompass a much broader range of claims. (Under current regulations, claims are regarded as frivolous only if material elements in the asylum application have been “deliberately fabricated.” The new regulations would define frivolous claim as one that the applicant knows is unmeritorious, e.g., a claim that is made for purposes of delaying removal or deportation or to buy time for pursuing other avenues of relief.)
  •    Require asylum officers assessing credible fear to consider whether the alien could safely relocate within his or her country.
  •    Expressly provide that applicant fears of harm from terrorists, gangs, or “rogue” government officials are insufficient to support valid claims for asylum or withholding of removal.
  •    Raise the bar for establishing a “credible fear” of persecution or torture sufficient to support withholding of removal, including under the CAT. ( * Note: Currently an alien seeking withholding of removal only has to show “a significant possibility” that he will be able to establish eligibility for that relief he is seeking, in order to proceed beyond the credible fear interview.  The proposed regulations would increase this standard to a “reasonable possibility” if the alien is seeking withholding of removal.)
  •    Authorize and require asylum officers to make additional legal determinations (subject to review by an immigration judge), such as deciding whether an alien is subject to statutory or regulatory bars to eligibility for the relief being sought. (* Note: Such bars include having ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; having been convicted of a “particularly serious crime” so as to be a danger to the United States; having committed a “serious nonpolitical crime” outside the United States; posing a danger to the security of the United States; having been firmly resettled in another country before arriving in the United States; having engaged in, incited, or being likely to engage in any terrorist activity; representing or being a member of a terrorist organization; having persuaded others to support terrorist activity or a terrorist organization; having received military-type training from or on behalf of any organization that, at the time the training was received, was a terrorist organization; or being the spouse or child of an individual who is inadmissible for any of the above within the last 5 years. )
  •    Amend existing regulations to redefine and more clearly limit  terms relating to asylum and withholding of removal eligibility, such as “particular social group,” “political opinion,” “persecution,” and “firm resettlement.”
  •    Permit immigration judges to deny an application for asylum or withholding of removal without an evidentiary hearing if the alien does not establish a prima facie claim for relief (disadvantaging aliens who are not represented by counsel familiar with the elements of an asylum or a withholding of removal application).
  •    Narrow the discretion of an Immigration Judge (IJ) to determine that asylum is warranted, by specifying factors that immigration judges should consider in making that determination.(* Note: In addition to establishing eligibility, an asylum applicant must also establish that it is warranted as a matter of discretion. )
  •    Clarify (that is, more clearly limit) the standard for determining the acquiescence of a public official or other person acting in an official capacity, as relevant to deciding whether an alien qualifies for protection under CAT regulations.
  •    Allow DHS and DOJ to disclose information in applications for asylum, statutory withholding, and CAT protection for a variety of reasons, including as part of a criminal investigation, in response to claims filed by aliens with federal judges seeking release from custody, and to prevent child abuse.
Additional Information and Resources:

The Notice of Proposed Rulemaking issued by DOJ and DHS explains the proposed regulatory amendments and the rationale behind them in detail. There are also numerous online articles and educational resources that may be helpful in deciding what you think about the proposal.  Opponents of the new rules — and of the Trump Administration’s Immigration policies in general — have denounced the proposed changes as “abhorrent, un-American, and illegal,” expressed apprehension that they will make it effectively impossible for people fleeing persecution to obtain protection in the United States, and made such pronouncements as:“[F]or three and a half years, the American asylum system has been dying a death of a thousand cuts, but this regulation is a guillotine.”  In determining whether you share these views, you may wish also to consider the fact that this proposal does not exist in a vacuum, but rather is one of a succession of regulatory reforms the Trump Administration has sought to implement in order to constrain and limit asylum claims. These include, for example, considerable expansion of bars to asylum, as discussed by Human Rights Watch in an article published earlier this year about another proposal.

In the meantime, other commentators have hailed the prospective new rules as badly needed reforms designed to address a broken and unworkably over-taxed immigration system.  Informative articles that you may wish to read in order to form your own opinions about the potential new rules can be found in publications such as Jurist and The Hill, and on the websites of Axios and The Center for Immigration Studies.  You may also be interested in reviewing the description of the proposed rules on the DOJ website; and may find it useful to look at online explanations of topics such as withholding of removal and  expedited removal.

If You are Ready to Comment on the Proposed New Rules:

If you wish to submit a comment on the proposed regulations, the best means is to go to the Comment Page for this topic on the Government’s eRulemaking website, type your comments into the box provided for that purpose, and follow the other instructions on that page for comment submission.  Your comments must be submitted by no later than 11:59 PM Eastern Time on July 15, 2020 in order to be considered. (*Note: It is possible this deadline will be extended, but it is impossible to be certain at this time.)

Comments can also be submitted in letter form to Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041. To ensure proper handling, please reference the agency name and RIN 1125-AA94 or EOIR Docket No. 18-0002 on your correspondence. Mailed items must be postmarked or otherwise indicate a shipping date on or before the submission deadline.