EOIR Clarifies Standard for Supporting Evidence in Asylum Cases

Also codifies in regulation IJ submissions to the record and cleans up a 'zombie regulation'

By Andrew R. Arthur on October 5, 2020

In three prior posts, I analyzed different parts of a Notice of Proposed Rulemaking (NPRM) issued by the Executive Office for Immigration Review (EOIR) at DOJ, which oversees the immigration courts. In this one I will examine how that NPRM cleans up and clarifies the regulation governing the documents than an immigration judge (IJ) may rely upon on in adjudicating an application for asylum, statutory withholding of removal, and/or protection under the Convention Against Torture (CAT). It would also codify in regulation a practice by which IJs themselves can supplement the record in those cases. As with other proposals in the NPRM, these will speed adjudications and (as explained below) are overdue.

All of this is a lot of inside baseball, but the proposals themselves are actually fairly important in allowing IJs to complete asylum claims within the 180-day deadline Congress has mandated in section 208(d)(5)(A)(iii) of the Immigration and Nationality Act (INA), which I discussed at length in last Wednesday's post.

The current regulation governing reliance on such outside materials in asylum cases (which the NPRM proposes to amend) is 8 C.F.R. § 1208.12, and the genesis of that provision provides an explanation for EOIR's proposals.

Its predecessor regulation (8 C.F.R. § 208.12) was originally included in a series of Clinton-era regulatory changes that were published by the then-Immigration and Naturalization Service (INS). Those changes were intended to implement provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) governing expedited removal and the handling of asylum claims.

At the time, EOIR and the INS were both components in DOJ, and therefore, the same regulations usually were binding on both (in cases where they were applicable to EOIR at all). That said, regulations that pertained to both usually only referenced (or explicitly applied to) the INS component, as 8 C.F.R. § 1208.12 does in describing reliance on outside materials by the "asylum officer".

Of course, in November 2002, the Homeland Security Act of 2002 (HSA) eliminated the INS, and moved its responsibilities to the new Department of Homeland Security (DHS) on a fairly tight timeframe: The effective date of the HSA was 60 days after enactment (January 24, 2003), and DHS itself was established (and INS dissolved) just more than three months after enactment, on March 1, 2003.

The immigration regulations in title 8 of the CFR were accordingly reorganized and split into two in a rather slapdash manner (and only published the day before INS was dissolved, February 28, 2003). Chapter I of title 8 regulates DHS's roles and operations, while chapter V therein (including 8 C.F.R. § 1208.12) now governs the duties and responsibilities of DOJ and EOIR.

In fact, what was 8 C.F.R. § 208.1 et seq. was simply (and admittedly) copied into 8 C.F.R. § 1208.1 et seq. with inaccurate references (like "asylum officer" instead of "immigration judge" in section 1208.12(a)) into a new chapter V of 8 Code of Federal Regulations.

The NPRM proposes to clean up that particular inaccurate reference, and others. Here is the present iteration of 8 C.F.R. § 1208.12(a):

In deciding an asylum application, or in deciding whether the alien has a credible fear of persecution or torture pursuant to § 1208.30 of this part, or a reasonable fear of persecution or torture pursuant to § 1208.31, the asylum officer may rely on material provided by the Department of State, the Office of International Affairs, other Service offices, or other credible sources, such as international organizations, private voluntary agencies, news organizations, or academic institutions.

In this context, the "Office of International Affairs" was a component in the former INS that (among other activities) provided guidance to asylum officers on the adjudication of asylum claims. That office was dissolved with the INS. "[O]ther Service offices" in this context applies to the investigatory and inspections branches of the INS, as well to the agency's offices abroad. In fact, with respect to references to federal government components in this portion of the regulation, only the Department of State (DOS) is still in existence. Not to be flippant, but this is a "zombie regulation" in that respect.

To bring this regulation up to date, the amended regulation would permit IJs to rely on materials not just from DOS, but also from DOJ, the Department of Homeland Security (DHS), other DOJ offices specifically, and U.S. government agencies generally.

DHS would be the modern counterpart to "other Service offices" in the existing regulation, and the omission of other DOJ offices — and in particular the FBI — was likely an oversight when the present regulation was promulgated. In any event, I presented (and received) evidence from any number of government agencies in connection with asylum and other protection claims (including the FBI and U.S. attorney's offices) without (many) objections, so these proposed amendments simply codify existing practice.

The proposed amendment would also make a minor, but impactful, change to IJ consideration of materials from non-U.S. government sources. First, it would allow IJs to rely on material from foreign government sources, but only to the degree that those sources are deemed "credible and probative". Needless to say, if an alien is claiming that he or she will be subject to harm by the government if returned home, materials from that home government should be examined through the lens of the claim itself, and DOS reports on conditions in that country.

Second, whereas the current regulation permits IJs to consider materials from credible non-government sources ("such as international organizations, private voluntary agencies, news organizations, or academic institutions"), the proposed amendment is actually broader than the current regulation. It would permit IJs to rely on material from any non-governmental sources, provided again that "those sources are determined by the" IJ "to be credible and probative".

One note with respect to the proposed requirement that materials from foreign government and non-governmental sources be "probative". Evidence has probative value when it is "is sufficiently useful to prove something important in a trial." Respectfully, from my experience, often evidence presented with many asylum applications is of limited probative value.

Some practitioners submit reams of newspaper articles in connection with various asylum claims, and often the same articles in connection with asylum claims from the same country. In more than a few instances, however, those articles have little or no probative value with respect to the alien's claim.

To address this issue, and ensure that I did not miss key points in any articles that were submitted, I would require lawyers (both private and government) to highlight the critical portions of those articles, and provide a synopsis of each.

No one ever objected to that practice, which is permitted under the broad authority in 8 C.F.R. §§ 1003.10(b) (IJs shall "take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases") and 1003.36 ("The Immigration Court shall create and control the Record of Proceeding [ROP]."). The proposed amendment would supplement those authorities and — directly — authorize the requirements I placed on the parties.

Lastly, the proposed amendment would add the following final sentence to the aforementioned 8 C.F.R. § 1208.12(a):

On his or her own authority, an immigration judge may submit relevant evidence into the record, if it is credible and probative, and may consider it in deciding an asylum application, which includes an application for withholding of removal and protection under the Convention Against Torture, provided that a copy of the evidence has been provided 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.

This provision would codify existing practice and case law. For example, the DOS Country Report on Human Rights Practices is likely the best source to rely upon in adjudicating asylum claims. But occasionally, neither party would submit it in an asylum case, so I would print the relevant one out and provide it to the parties before placing it in the ROP (and after asking for objections).

That action was not only permitted, but required under Matter of S-M-J-, where the Board of Immigration Appeals (BIA) held:

Although the burden of proof is not on the Immigration Judge, if background evidence is central to an alien's claim and the Immigration Judge relies on the country conditions in adjudicating the alien's case, the source of the Immigration Judge's knowledge of the particular country must be made part of the record.

In fact, as the BIA noted there, IJs "have a role in introducing evidence into the record."

Given these facts, EOIR should include the proposed amendments in the final rule. They will clean up a clearly outdated (and facially inapplicable) regulation, codify existing practice and case law, and enable IJs to adjudicate asylum, statutory withholding, and CAT claims more quickly, by excluding extraneous extrinsic materials of limited or no probative value.