DOJ Proposal: 15-Day Deadlines in Asylum-and-Withholding-Only Proceedings

If you have a claim, file it

By Andrew R. Arthur on October 1, 2020

As I noted in my last post, DOJ's Executive Office for Immigration Review (EOIR) — which supervises the immigration courts — has issued a Notice of Proposed Rulemaking (NPRM) which (if adopted) would amend the procedures for asylum and withholding of removal. In that NPRM, EOIR proposes a 15-day deadline for the filing of asylum applications for what it now terms "asylum-and-withholding-only proceedings" (previously known as "asylum-only proceedings"). Given that such applicants are only in those proceedings to apply for asylum and related forms of protection, it is a reasonable requirement, and should be included in a final rule (with one amendment).

Pursuant to current regulations, certain aliens seeking asylum, statutory withholding of removal under section 241(b)(3) of the INA, or protection under the Convention Against Torture (CAT) are not entitled to be placed into section 240 removal proceedings. Rather, they may only have their claims heard in asylum-and-withholding-only proceedings. The only issue at those hearings is whether the alien is eligible for one of those three forms of protection — not whether they are removable or qualify for other relief.

Specifically, identified alien crewmembers, stowaways, applicants for admission under the Visa Waiver Program (VWP), aliens admitted under the VWP who overstayed, certain arriving aliens ordered administratively removed on security and related grounds, applicants who are seeking admission or who have been admitted as witnesses or informants on S nonimmigrant visas, and applicants for admission and aliens who have been admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) pursuant to the Guam-CNMI Visa Waiver Program (G-CNMI VWP) and overstayed their visas can only have their protection claims heard in limited asylum-and-withholding-only proceedings.

As an aside and notable exception, aliens seeking admission or who overstayed their admission after being admitted in the CNMI (either on VWP or G-CNMI VWP) are not eligible for asylum until January 1, 2030, as a result of regulatory amendments implementing the Northern Mariana Islands U.S. Workforce Act of 2018.

In addition, in a Joint Notice of Proposed Rulemaking (JNPR) published on June 15, 2020, EOIR and the Department of Homeland Security (DHS) proposed placing aliens in expedited removal under section 235(b)(1) of the INA, and who have been found by U.S. Citizenship and Immigration Services (USCIS) to have a "credible fear" of removal, solely into asylum-and-withholding-only proceedings.

If that pending proposal were to be adopted in a final rule, those aliens would no longer be amenable to removal proceedings, either. My analysis of that still-pending proposal was published on June 15, 2020.

Pursuant to 8 C.F.R. § 1208.4(b)(3)(iii), asylum applications for those aliens are to be filed directly with the immigration court — meaning that those aliens may not seek asylum from USCIS.

The NPRM proposes to amend that regulation to add a new subsection (d). That amendment would set a 15-day deadline from the alien's first hearing before the immigration court for the alien to file an asylum application (Form I-589), which also serves as an application for statutory withholding and CAT.

This is a reasonable amendment. Each of the aliens in asylum-and-withholding-only proceedings is in those proceedings specifically because the alien affirmatively indicated a fear of harm if returned and an intention to apply for those forms of relief, and therefore should know the specifics of his or her claim. As the NPRM notes, "there is no reason not to expect the alien to be prepared to state his or her claim as quickly as possible." In other words, if they have a claim, they should file it, and quickly.

Nor is the I-589 a complicated form to complete, even for a layman. In fact, tens if not hundreds of pro se applicants filed them with me during my eight years on the bench. Most of the questions call for a narrative response, and the entire form can be completed by hand.

Further, this deadline is similar to (and actually more expansive than) the current deadline for alien crewmembers who are found to have credible-fear claims to file I-589s, which is 10 days (filed directly with DHS and then forwarded to the immigration court), pursuant to 8 C.F.R. § 1208.5(b)(ii).

And, like that regulation, the proposed 8 C.F.R. § 1208.4(d) would allow the IJ to extend that 15-day deadline "for good cause" (which as I have explained previously is not a high bar). Absent such an extension, if the alien fails to file the I-589 within that regulatory period, the application is deemed waived and the alien will be returned to DHS for removal.

This deadline, although strict, provides two benefits to aliens. First, it allows aliens with meritorious asylum claims to have those claims heard quickly. Second, as the NPRM explains, "delaying filing of the claim ... increases the likelihood that important evidence, including personal recollections, may degrade or be lost over time."

The credibility of the applicant is usually key to a successful asylum claim (particularly absent extrinsic evidence, such as documents or affidavits). But, as time passes, the applicant may "misremember" key elements of the claim, which could create a discrepancy between the written application and the alien's testimony. By statute, such discrepancies are sufficient to support an adverse credibility finding.

Lastly, even with the 15-day deadline, 8 C.F.R. § 1208.4(c) currently permits an applicant — at the discretion of the IJ — to amend or supplement a previously filed I-589. The NPRM does not disturb or amend in any way that current regulatory subsection, so even the proposed 15-day deadline would not unduly prevent or impede affected aliens from seeking protection.

All of that said, there are two other groups of aliens who are similarly not amenable to removal proceedings, but whose sole relief from removal (again, pursuant to regulation) is the filing of an application for statutory withholding or protection under CAT: aliens whose prior orders of removal have been reinstated under section 241(a)(5) of the INA, and aliens who have been convicted of aggravated felonies and are subject to administrative removal under section 238 of the INA.

The operative regulation for those "withholding-only" proceedings is 8 C.F.R. § 1208.2(c)(2), which is not referenced in the proposed 8 C.F.R. 1208.4(d) (again, the 15-day deadline for filing of the I-589 for aliens in asylum-and-withholding-only proceedings). That said, however, the same logic that would apply to a short filing deadline for aliens in asylum-and-withholding-only proceedings would apply with equal (if not greater) force to aliens in withholding-only proceedings.

For that reason, in the final rule, EOIR should consider amending the proposed regulation to include those aliens, as well. But, in any event, the component should implement the 15-day filing deadline for the I-589 for aliens in asylum-and-withholding-only proceedings, as proposed in the NPRM. It will expedite the adjudication of those applications, protecting the rights of aliens with meritorious relief claims while relieving the burdens those cases can impose on the immigration courts.