DHS, DOJ Issue Final Regulations to Ensure Uniformity in Asylum

A sober response to more than 87,000 comments — but uniformity likely won't last

By Andrew R. Arthur on December 15, 2020

DHS and DOJ issued on Friday their final rule on proposed regulations to amend procedures in cases involving asylum, statutory withholding of removal, and protection under the Convention Against Torture. The rule applies to both asylum officers (AOs) in DHS's U.S. Citizenship and Immigration Services (USCIS) as well as to the immigration courts and Board of Immigration Appeals (BIA) within DOJ's Executive Office for Immigration Review (EOIR). The final rule is not materially different from the proposed regulations in the June 15 notice of proposed rulemaking (NPRM) — which were intended to impose uniformity in the application of the law, and to which the Center and I responded in July. Don't expect that uniformity to last.

We were hardly alone in filing responses to the NPRM.

Specifically, the departments received more than 87,000 comments in response to the NPRM, 311 of them from various organizations ("advocacy groups, non-profit organizations, religious organizations, unions, congressional committees, and groups of members of Congress"), and the rest from individuals. Most of the responses were opposed to the NPRM, and most supported the (flawed) status quo.

Here is a representative sample of what the departments were dealing with: "Many comments assert that the NPRM targets certain nationalities, groups, or types of claims and is motivated by a nefarious or conspiratorial animus, particularly an alleged racial animus."

But DHS and DOJ pulled no punches in their response:

Many if not most comments opposing the NPRM either misstate its contents, provide no evidence (other than isolated or distinguishable anecdotes) to support broad speculative effects, are contrary to facts or law, or lack an understanding of relevant immigration law and procedures.

This is not to say that the departments blithely waved away the objections. The final rule takes up 128 pages in the Federal Register (three columns per page, single spaced) and, of that, roughly 98 pages are responses to the comments that DHS and DOJ received regarding the NPRM.

By and large, the regulations in the final rule codify existing BIA, attorney general (AG), and/or circuit court precedent. That last category requires some explanation.

There are 12 regional circuit courts of appeals, and of them, 11 have direct jurisdiction over immigration claims on petitions for review under section 242 of the Immigration and Nationality Act (INA). The U.S. Court of Appeals for the District of Columbia does not generally hear appeals from adverse decisions of the BIA (as there is no immigration court in D.C.), but it does have exclusive jurisdiction over the implementation of the expedited removal procedures within section 235(b) of the INA.

Those 11 circuit courts that do review BIA decisions occasionally — but not always — have different interpretations of the asylum, statutory withholding, and CAT provisions. For example, a claim that would entitle an alien to asylum under Ninth Circuit law may not under that of the Fifth Circuit.

If you want a real-world example of how this works, look at Paloka v. Holder, a Second Circuit decision in which the court grappled with the varying interpretations of one discrete "particular social group" for purposes of asylum protection in several circuits.

In general, Congress writes with a broad brush when it comes to legislation, and it is largely left to the executive branch to fill in the finer details — through regulation by the relevant department(s) or administrative precedent decisions.

In the case of the INA, those regulations can be promulgated by DHS, DOJ, or the Department of State (DOS) — depending on whether the area involved relates to the authorities of one or the other — but under section 103(a)(1) of the INA, the AG's interpretation of law (through adjudication) is controlling.

In most cases, the AG delegates his precedential adjudicative authority to the BIA, but the AG retains the authority to set rules through adjudication on certification (which I explained in-depth in November 2019).

The circuit courts have authority to review — on a case-by-case basis — those determinations as they relate to individual aliens, and their removability and eligibility for relief. But by publishing precedent decisions, they can effectively overrule DOJ, DHS, and/or DOS in the geographic area within their jurisdiction.

As a result, immigration — which along with national defense should be the ultimate federal issues — is subject in many important aspects to regional interpretation. Given the fact that there are almost no impediments on an alien moving from one state to another, however, the alien who is granted asylum in California (in the Ninth Circuit) can move to Maryland (in the Fourth) the next day.

I did not pick those two examples at random. I was a trial attorney for the former INS in each state, and I might as well have been practicing in two different areas of the law — certainly as it related to asylum claims, but others as well.

The regulations in the final rule attempt to bring more uniformity to these three forms of protection — particularly as it relates to "membership in a particular social group" for asylum and statutory withholding purposes (the other grounds for asylum and statutory withholding are race, religion, nationality, and political opinion). Why that one?

First, and most importantly, it is vague. As then-Judge Samuel Alito stated in 1993: "Read in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a 'particular social group.'" Further, he explained, "neither the legislative history of the relevant United States statutes nor the negotiating history of the pertinent international agreements sheds much light on the meaning of the phrase 'particular social group.'"

Second, more generally but relatedly, that vagueness has led to some dire results.

For example, during a surge in illegal migrants at the Southwest border in FY 2019, a large number of adults travelling with children ("family units" or FMUs) and unaccompanied alien children (UACs) were apprehended by Border Patrol (64.5 percent of the 851,508 migrants apprehended at the Southwest border that year).

That surge of FMUs and UACs swamped the ability of U.S. Customs and Border Protection (CBP) to care for and process those aliens — and, as a result, rather than having those aliens interviewed by AOs at USCIS to determine whether they had a credible fear, a large number of them were simply released with a notice to appear (the charging document in removal proceedings), to make asylum claims in the United States, according to an April 2019 report by a bipartisan federal panel.

That panel found that this simply encouraged more FMUs to enter illegally and claim asylum (a trip that resulted in danger to them and trauma to their children, discussed below), and a process that could take up to five years — time that they can live and work in the United States. Of course, even at the end, few are actually removed.

The majority of those FMUs and UACs were from the three "Northern Triangle of Central America" (NTCA) countries of El Salvador, Guatemala, and Honduras — countries with a large gang presence and high degrees of criminality. Although there are no statistics on the basis of the claims of each of those aliens, the vast majority likely asserted a fear of harm resulting from that criminality.

Even before the final rule, such claims were unlikely to result in an asylum grant (but not necessarily a finding of "credible fear" at the border — of 105,439 aliens who claimed credible fear in FY 2019, AOs found fear was established 75,252 times — 71 percent of the time) . Regulatory changes in that rule make it clear that although such claims could — in rare circumstances — be found to be "persecution" for purposes of asylum and statutory withholding protection, generally they aren't.

It also directs adjudicators to determine whether the aliens could relocate safely in their home countries in lieu of coming to the United States, and adds as adverse discretionary factors (asylum is a discretionary form of protection, statutory withholding is not) the alien's presence for more than two weeks in a third country before arriving in this country, and passage through more than one country on the way to the United States without seeking protection (with exceptions).

Simply put, asylum is a form of humanitarian protection for those facing a direct threat that should be sought at the first opportunity — not a ticket to indefinite residence in the United States.

Keep in mind that the final rule does not target nationals from the NTCA (although such claims are likely in the offing), but the FY 2019 surge is indicative of the problems in the current asylum laws.

As the comments to the final rule show, it is impossible to divorce emotion as it relates to the very real consequences of widespread criminality in a foreign national's home country from the practical effects of immigration law.

Largely lost in that emotion is the effect that unrestricted illegal immigration has on the ability of CBP to do its main job of protecting the border. The April 2019 report stated that: "On any given day, CBP is at half strength or less 'on the line' in places at the border, endangering themselves and the country." Plus the consequent deleterious effects that those cases have on backlogs in our immigration courts.

Through October, there were 1,273,885 cases pending before our nation's 520 immigration judges (IJs). As of June 30, according to DOS, 549,724 of those cases (43 percent) were asylum claims (the number has likely increased in the interim — the NPRM stated there were "only" 527,927 asylum claims before IJs as of April 24). That is on top of (again, as per DOS) 598,692 asylum claims that were pending on August 31 before AOs — most of which will likely end up before IJs.

IJs and AOs need the bright-line rules that are contained in the final rule to wend their way through those almost 1.15 million asylum claims, or the entire immigration adjudications system will break down.

Also lost is the human cost to the migrants themselves on their way to the border, who are lured to enter this country illegally by smugglers looking for money. A May 2017 report by the international NGO Doctors Without Borders reported that "68.3 percent of the migrant and refugee populations entering Mexico reported being victims of violence during their transit toward the United States," and that almost one-third of the women it had surveyed had been the victims of sexual abuse during the journey.

I wrote about these issues in an October 2018 post captioned "An Incredibly Violent Journey to the United States: The perils of illegal immigration", but they were amplified by the aforementioned bipartisan federal panel in its April 2019 report. It explained:

Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money.

There is no need for any of these migrants to face these dangers to make their way to the Southwest border. As I explained in a December 4 post, Mexico provides protection to refugees — and on much broader grounds than the United States even before the final rule.

It is questionable whether a Joe Biden administration could simply withdraw these regulatory changes.

In a December 4 post, I quoted the Ninth Circuit (which cited the Supreme Court) on the proposition that: "An agency reversing a prior policy must show that there are good reasons for the new policy and provide a reasoned explanation for disregarding facts and circumstances that underlay or were engendered by the prior policy." (Internal punctuation omitted.) That could be a tall order in reversal of these regulations.

Of course, the final rule will be subject to court challenges based on many of the arguments contained in the responses to the NPRM (and likely several more). Whether the Biden DOJ defends the final rule in the face of those challenges is a completely different question. While the regulations in the final rule will likely not be washed away entirely, they could well be whittled away piecemeal. The uniformity those regulations are meant to ensure likely won't be "uniform" in the not-too-distant future.

Topics: Asylum