- DHS and DOJ propose to amend the current regulations governing the credible-fear process for aliens in expedited removal proceedings to align that process with the requirements for asylum, statutory withholding, and CAT protection.
- The current regulatory credible-fear review process is a mess, which not only ignores Congress's directives, but is also subject to significant exploitation by aliens with non-meritorious protection claims seeking to live and work in the United States indefinitely. In FY 2019, only 15.33 percent of all aliens whose cases originated with a credible-fear claim were granted asylum, and 41.53 percent failed to file an asylum application at all.
- The expedited removal provision in the INA only directs asylum officers (AOs) to consider whether there is a significant possibility that an alien claiming a credible fear of being returned to his home country could establish eligibility for asylum, not for statutory withholding and CAT protection. Despite this fact, the credible-fear regulation directs AOs to consider whether there is a "significant possibility" that the applicant is eligible for those protections, as well as for asylum.
- The amendments would not remove eligibility for those protections from the AOs' credible-fear assessment, but it would raise the standard that an alien must meet to establish eligibility to apply for statutory withholding and CAT from "significant possibility" of persecution or torture to a "reasonable possibility" such harm could occur if the alien were removed.
- The raising of those standards is consistent with the higher burdens that an alien must meet to be granted statutory withholding or CAT, compared to the burdens on asylum applicants.
- The amendments proposed by DHS and DOJ would also require AOs to consider whether a credible-fear applicant could safely and reasonably relocate within the alien's own country to avoid the harm that the applicant fears. Logically, the possibility of internal relocation to avoid harm would already factor into AOs' credible-fear determinations.
- Those amendments would also require AOs to determine whether any of the statutory bars to asylum or statutory withholding of removal apply in a credible-fear applicant's case, and to factor those bars into the AO's assessment of whether the alien has shown a significant possibility or a reasonable possibility of persecution.
- The current credible-fear regulation already permits AOs to consider whether any of those bars would apply, but prevents the AO from considering those bars in determining whether the alien has shown a significant possibility of being eligible for asylum or statutory withholding.
- If the applicant would be barred from applying for or receiving asylum by statute (with one discrete exception), the AO could not find that the alien has demonstrated a significant possibility of persecution to apply for asylum before an immigration judge (IJ).
- If the applicant would be barred from eligibility for statutory withholding, the AO could not find that the alien has demonstrated a reasonable possibility of persecution, and therefore could not apply for statutory withholding with an IJ.
- The applicant can request that the IJ review these determinations, but must affirmatively request such review.
- Under the proposed amendments, where the AO finds that the credible-fear applicant is statutorily barred from receiving asylum and statutory withholding, but has shown a reasonable possibility of torture to apply for CAT, the IJ in asylum-and-withholding-only proceedings can review the applicability of those bars in the alien's case.
- DHS and DOJ should remove DOJ's exclusive jurisdiction over CAT claims and give the authority to DHS, to require DHS to make a determination of whether an alien would face torture if returned at the time of removal.
- Notably, the former INS – not IJs – used to exercise CAT authority, and did so consistent with the international obligations of the United States.
- Removing the obligation to adjudicate CAT claims from IJs and the BIA would streamline removal and asylum-and-withholding-only proceedings, and eliminate the need for those tribunals to hear meritless cases filed by aliens barred from all other forms of relief and protection.
Two weeks ago, the Department of Justice (DOJ) and the Department of Homeland Security (DHS) issued a Joint Notice of Proposed Rulemaking (JNPR) to address weaknesses in and make clarifications to the asylum and credible-fear processes, a JNPR about which I have written extensively. Amendments therein will clean up the credible fear regulations, and empower asylum officers (AOs) within U.S. Citizenship and Immigration Services (USCIS) to apply the asylum law as written. As I have already noted with respect to other amendments in the JNPR, these changes are overdue.
Current Credible-Fear Screening Process
The current credible-fear screening process has its origins in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which was intended to address weaknesses in border enforcement and asylum processing. IIRIRA, I have explained, replaced a very convoluted and much litigated calculus for assessing the rights of aliens who had entered illegally known as the "entry doctrine" – as well as what were known as "deportation" and "exclusion" proceedings – with the current concepts of "removal" and "removal proceedings".
Most pertinently with respect to the amendments at issue, Congress provided that the Immigration and Naturalization Service (INS) – the unified agency with jurisdiction over immigration enforcement and adjudications-- could process aliens without proper entry documents via new "expedited removal" provisions in section 235(b)(1) of the INA. Expedited removal allowed INS to remove those aliens without giving them the opportunity to appear before an immigration judge (IJ).
Congress did not eliminate the ability for those aliens to seek asylum under section 208 of the INA. Rather, it added an exception to expedited removal, called "credible fear of persecution", by which asylum officers (AOs) could screen potential asylum claims by aliens subject to expedited removal.
Briefly, pursuant to statute, when an alien subject to expedited removal asserts an intention to apply for asylum, or a fear of persecution upon return, the alien is to be referred to an AO, who interviews the alien to assess whether "there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under" section 208 of the INA.
If the alien is found to have a credible fear (as 73.6 percent of credible-fear applicants were in FY 2019), the alien is currently placed into removal proceedings under section 240 of the INA to apply for asylum, statutory withholding, and CAT from an IJ (although the JNPR also proposes to place those aliens into "asylum-and-withholding-only proceedings", more limited hearings that focus solely on the aliens' applications for protection).
If the AO makes a negative credible fear finding, the alien can request that determination to be reviewed by an IJ. Congress, however, deprived aliens whose negative fear determinations were affirmed by IJs of most forms of judicial review, meaning that in almost all cases, the affirmance of an AO's negative-fear finding by an IJ is final and unreviewable, and the alien will be removed.
Two asides. First, that limitation on judicial review was affirmed by the Supreme Court on June 26, in an opinion that also effectively ended the entry doctrine-- all almost 24 years after IIRIRA was enacted. Second, Congress abolished the INS (which had been in DOJ) when DHS was established in the Homeland Security Act of 2002. The component with authority over immigration courts and the Board of Immigration Appeals (BIA) – the Executive Office for Immigration Review (EOIR) – remained within DOJ, while immigration enforcement and administrative adjudications were assigned to agencies within DHS (the latter to USCIS).
I have noted repeatedly that Congress did not require AOs in credible fear reviews to assess an alien's eligibility for statutory withholding of removal under section 241(b)(3) of the INA (which is similar to asylum, only with a higher burden of proof and fewer benefits) or protection under the Convention Against Torture (CAT) (again, protection with fewer benefits focusing exclusively on whether the alien would be tortured if returned). Nonetheless, the Clinton DOJ mandated such assessments when it issued the initial regulation governing AO credible fear determinations in December 2000.
Issues with the Current Credible-Fear Process
That regulation made a mess of credible fear, and expanded that process well beyond Congress's expressed intent.
As I have previously explained, aliens applying for asylum bear a lower burden of proof ("well-founded fear", less than a 50-percent chance of harm) than aliens seeking statutory withholding and CAT ("more likely than not", a greater than 50-percent chance of harm) to obtain that protection. And yet, the current credible-fear regulation applies the same screening standard to all three forms of relief: an alien can apply for asylum, statutory withholding, and/or CAT in a removal proceeding under section 240 of the INA if the alien establishes a "significant possibility" that he or she is eligible for any of those three forms of protection.
A June 25 post explained how, as a consequence, credible fear has been exploited by aliens seeking to enter the country illegally to live and work indefinitely. Those aliens have flooded immigration courts with non-meritorious applications for those protections in removal proceedings before IJs. In FY 2019, for example, only 15.33 percent of all aliens whose cases originated with a credible-fear claim were granted asylum, and 41.53 percent failed to file an asylum application at all.
Proposed Reforms to the Credible-Fear Screening Standards
The JNPR attempts to bring some order to this system. But, it does not go as far as it could have.
On the second point, keep in mind, as noted above, that there is no statutory requirement that aliens in expedited removal proceedings receive AO or IJ review of their statutory withholding or CAT claims, at all, so DHS and DOJ could have simply eliminated credible-fear review for any protection other than asylum. Determining whether an alien is eligible for statutory and CAT determinations in expedited-removal proceedings could have been left solely to DHS, to the degree assessment of eligibility for those protections is required at all (the alien would have to be ordered removed to be eligible for those protections, and the expedited removal order issued by DHS would suffice).
Instead, as I explained in the June 25 post, the JNPR proposes to replace the unified screening standard established by Congress in the credible-fear provision for asylum ("significant possibility" that the alien could be eligible for asylum) into three different assessments: whether the alien has established a "credible fear" (or "significant possibility") of persecution for asylum, a "reasonable possibility of persecution" for statutory withholding, and a "reasonable possibility of torture" for CAT.
The two latter standards were not created from whole cloth: instead, by regulation, AOs use "reasonable possibility" of persecution or torture as the screening standards for non-permanent resident aliens who are subject to administrative removal because they have been convicted of aggravated felonies under section 238 of the INA, or have reinstated removal orders under section 241(a)(5) of the INA. Those aliens are not eligible for asylum, but may be eligible for statutory withholding or CAT. Note that "reasonable possibility" is legally the same standard that an alien must meet ("well-founded fear") to be granted asylum.
And again, AO screening of aliens' claims in expedited-removal proceedings is just that: an assessment of whether the alien can, subsequently, apply for asylum, statutory withholding, or CAT before an IJ. More specifically, if the alien satisfies the AO screening standard, the alien can subsequently apply for those forms of protection from an IJ under the more rigorous requirements and burdens the alien must meet to be granted each.
This trifurcation of the current screening standard is a crucial element of another proposal in the JNPR: requiring those AOs to assess whether the bars to asylum in section 208 of the INA, and to statutory withholding under section 241(b)(3)(B) of the INA, would prevent an alien in expedited removal from applying for those protections, as well as requiring AOs to assess whether aliens can internally relocate and thereby avoid persecution and torture in their home countries.
Some persecution and torture claims are limited to a specific location—that is, the alien fears harm from authorities or actors in a specific location or area, but the alien could reasonably and safely relocate elsewhere in the alien's country of nationality or last habitual residence. The current regulations governing applications for asylum, statutory withholding, and CAT accordingly provide a mechanism for assessing whether the applicant could relocate internally in his or her own country to avoid harm.
For example, pursuant to regulation, where an asylum applicant has not established past persecution, and the alleged future persecutor is not affiliated with the government, the alien bears the burden of proving that he or she could not reasonably relocate to avoid future persecution. Where the alien has established past persecution, or that feared persecution is government-sponsored, DHS bears the burden of proving that the alien could safely internally relocate. A similar burden-shifting scheme is present in the regulations governing applications for statutory withholding.
With respect to applications for CAT (where government involvement is an element of the claim), the possibility of relocation is part of the IJ's consideration of whether it is more likely than not that the alien would be tortured in the country of removal as well, but the burden-shifting in the asylum and statutory withholding regulations does not apply to torture claims.
While the current regulations governing applications for asylum, statutory withholding, and CAT provide such intricate mechanisms for assessing whether an alien can safely internally relocate, the current credible fear regulation – which, again, contains the screening mechanism used by AOs in expedited-removal proceedings to determine whether aliens should ultimately be allowed apply for those protections to begin with – does not.
That said, the possibility of internal relocation to avoid harm should already be part of the AO's analysis of whether the alien has a credible fear of persecution or torture. The amendments in the JNPR would simply make clear that AOs should consider internal relocation in making assessments under the proposed credible fear of persecution, reasonable possibility of persecution, and reasonable possibility of torture screening standards.
Applying the Bars to Asylum and Statutory Withholding in the Screening Process
The amendments to the current credible-fear regulation would also direct AOs to consider whether the statutory bars to asylum and statutory withholding apply when considering credible fear of persecution and reasonable possibility of persecution claims.
Specifically, section 208(a)(2) of the INA bars aliens from applying for asylum where: the alien could be removed to a safe third country; the alien failed to apply for asylum within one year of the alien's last entry; the alien previously applied for and was denied asylum; or there are changed circumstances such that the alien would no longer be eligible for asylum. The amendments in the JNPR would apply the one-year, prior asylum denial, and changed circumstances bars to the AO's credible fear of persecution determination, but not the safe-third country exception (which is admittedly legally more complex).
Section 208(b)(2) of the INA bars aliens from receiving asylum if the applicant is: a persecutor; has been convicted of a particularly serious crime such that the alien is a danger to the community (including an aggravated felony); has committed a serious non-political crime outside of the United States; would be removable on certain terrorism-related grounds; or was firmly resettled in a third country prior to coming to the United States. That provision also allows the Attorney General to designate "additional limitations and conditions consistent" with section 208 that would bar an applicant from receiving asylum.
Exceptionally, and illogically, AOs are not currently barred by regulation from taking any of these bars into account in the credible-fear screening process, but they are directed to ignore them and to pass the alien's case to the IJ for a consideration of the alien's eligibility for protection in removal proceedings if the alien otherwise satisfies the credible-fear standard. The amendments in the JNPR would, instead, require AOs to consider the referenced bars to asylum (with the safe third-country exception above) in making a determination of whether an alien has established a credible fear of persecution, such that the alien can apply for asylum.
Similarly, section 241(b)(3)(B) of the INA contains bars to grants of statutory withholding. Those bars apply to persecutors, aliens who pose a danger to the community because they have been convicted of particularly serious crimes (including an aggravated felony or felonies for which the alien received an aggregate sentence of five years or more), aliens who committed serious non-political crimes outside of the United States, and aliens who pose a danger to the national security.
Again, the current credible-fear regulation does not prevent AOs from assessing whether those bars apply, but prevents them from doing anything about them. The amendments in the JNPR would require AOs to determine whether those bars apply as well in assessing whether the alien has shown a reasonable possibility of persecution. If they do, the AO cannot find the alien to have a reasonable possibility of persecution.
Further, as a comparison of these provisions shows, the bars to asylum and statutory withholding are similar, but not always the same. Pursuant to the amendments in the JNPR, if a bar to asylum would not also bar statutory withholding, and the alien establishes a reasonable possibility of persecution, the alien will be referred for asylum-and-withholding-only proceedings (which I described in a June 15 post) to apply for statutory withholding of removal.
Pursuant to the proposed amendments, if the alien is found to be barred from both asylum and statutory withholding of removal, but the alien has shown a reasonable possibility of torture, the alien will be referred to asylum-and-withholding-only proceedings to apply for CAT. At that proceeding, an IJ can determine whether those bars in fact prevent the alien from applying for or receiving asylum and/or statutory withholding of removal, in addition to assessing the alien's eligibility for CAT.
If the alien has failed to establish a significant possibility and a reasonable possibility of persecution, as well as a reasonable possibility of torture, the AO will issue a negative credible fear finding, which can be reviewed at the alien's request by an IJ. If the negative credible fear finding is based in whole or part on the AO's determination that the bars above apply, the IJ will review that determination, as well as the possibility that the alien will be persecuted or tortured.
These are sensible and necessary amendments, which will limit the ability of aliens who would be barred from receiving asylum and/or statutory withholding of removal from making their way to IJs to apply for those forms of relief anyway. This will preserve scarce judicial resources, allow aliens with meritorious claims for which they are statutorily eligible to have those claims heard more quickly, and reduce the likelihood that dangerous aliens will be released into the United States.
JNPR Could Have Gone Farther
That said, the JNPR could have gone farther, by removing jurisdiction over CAT generally from IJs in DOJ, and giving it to DHS, as I have argued in the past it should. Doing so would better protect the alien and streamline removal proceedings, as I explained in the linked post.
With respect to the second point, allowing an alien barred from asylum and statutory withholding to apply with an IJ for deferral of removal under CAT wastes what are limited EOIR resources. Adjudication of a CAT claim in immigration court is usually as resource-intensive as ruling on a claim for asylum or statutory withholding of removal.
And, there are no bars whatsoever to an alien applying for deferral of removal under CAT, so such claims are often simply just a last gambit for an alien barred from all other forms of relief to remain in the United States, which bog down the immigration courts in deciding worthless applications for protection.
Finally, as I have explained, INS (not EOIR) used to have jurisdiction over CAT claims, and when it did, "that protection worked the way it was supposed to, without burdening IJs and the BIA."
For these reasons, during their final review of the JNPR, the departments should consider removing DOJ's CAT jurisdiction and giving that jurisdiction to DHS, for an assessment just prior to removal of whether the alien would be tortured if removed.
That said, however, limiting aliens to CAT claims alone in an asylum-and-withholding-only proceeding where the alien is otherwise barred from asylum and statutory withholding is a reasonable compromise. DHS and DOJ should, however, clarify in the final rule that an alien in expedited removal proceedings who has demonstrated a reasonable possibility of persecution but not torture is only eligible to apply for statutory withholding in asylum-and-withholding-only proceedings, and that an alien who has demonstrated a reasonable possibility of torture but not persecution may only apply for CAT in such proceedings – again, to limit the issues before the IJ and preserve judicial resources.
The JNPR proposes to make two other, non-substantive, amendments to the credible-fear regulations.
First, it proposes to make clear that when an alien subject to expedited removal indicates a fear of persecution or torture or an intention to apply for asylum, the inspecting officer (generally a Border Patrol agent in U.S. Customs and Border Protection (CBP) or CBP officer at the port) will halt removal until the alien can be interviewed by an AO. This is an unexceptional provision, which simply affirms current practice, but with greater transparency.
Second, it clarifies that if an alien receives a negative credible fear determination from an AO, the alien must affirmatively request IJ review to obtain such a review. Oddly, under the current regulation, a refusal to request or decline such a review is treated as a request for IJ review. Given the fact that the alien had to affirmatively request the credible-fear interview to begin with, and that requesting review is as simple as checking a box, this amendment is much more reasonable than the current regulation, and will also preserve IJ resources.