NPRM Proposes Deadlines for Re-Filing of Incomplete Asylum Applications

Shifting the burden where it belongs: on the applicant

By Andrew R. Arthur on October 2, 2020

In a Wednesday post, I reported that the Executive Office for Immigration Review (EOIR) within DOJ has published a Notice of Proposed Rulemaking (NPRM). That NPRM, I noted, proposes to set a 180-day deadline for the adjudication of applications for asylum, statutory withholding, and protection under the Convention Against Torture (CAT), each of which is requested by filing a Form I-589. To aid immigration judges (IJs) in meeting that goal (as well as in tackling their crushing backlog), the NPRM also proposes a generous 30-day deadline for the re-filing of an incomplete I-589, as well as administrative changes to assist that process.

By way of background, a simple review of the I-589 reveals that (unlike other government forms) the 10-page document is not a difficult one for even a layman to complete, and can even be filled in by hand. Nonetheless, sometimes boxes therein are not checked, questions are not answered, and the necessary attestations are not completed.

Nor is it difficult for an applicant to provide the necessary evidence required to complete the form and to obtain asylum and related forms of protection.

Section 208(b)(1)(B) of the Immigration and Nationality Act (INA) makes clear that the burden of proof is on the applicant, and that the applicant's testimony alone may be sufficient to carry that burden. That said, the submission of corroborating evidence is not optional, specifically where the trier of fact (in immigration court, the IJ) finds that the applicant should provide corroborating evidence. Even that is not a hard-and-fast rule, however, particularly where the applicant shows that he or she "does not have the evidence and cannot reasonably obtain the evidence."

Under the current regulation governing the filing of the I-589, 8 C.F.R. § 1208.3, an alien must complete the form and submit any supporting evidence in accordance with the directions on the form (with a copy for any dependent listed therein) to apply for asylum, statutory withholding, and CAT.

Paragraph (c)(3) in that regulation makes clear: "An asylum application that does not include a response to each of the questions contained in the Form I-589, is unsigned, or is unaccompanied by the required materials specified in paragraph [1208.3(a)] is incomplete." The issue addressed in the NPRM is who, exactly, makes that determination, and once that determination is made, what happens next.

As a practical matter, a clerk at the immigration court will review the I-589 after it is submitted and before placing it in the court's record of proceedings (ROP) to make sure it is complete, but sometimes errors and omissions are not identified until the ROP is reviewed by the IJ.

At that point, under the current regulations, the "Service" (referring to the former Immigration and Naturalization Service as a result of sloppy cutting-and-pasting of regulations to implement the Homeland Security Act of 2002, but as a practical matter the immigration court) must mail the application back to the applicant for refiling within 30 days of submission.

What happens if the incomplete I-589 is not mailed back within 30 days of submission? For some unknown reason, pursuant to regulation, that incomplete application "shall be deemed complete."

That paragraph continues, however, providing that an applicant who has received an I-589 deemed incomplete may resubmit the I-589 "if he or she wishes to have the application considered." Notably, there is no current deadline for the alien to re-file the corrected form.

The alien could do so on the merits hearing date (if the case is not taken off of the merits calendar), a week, a month, or a year after the applicant gets the I-589 back. The problem is that — at present — there is no deadline, and therefore no incentive, for the applicant to resubmit that application quickly, except to speed along the process to obtain work authorization. Of course, an alien residing illegally in the United States who is filing an I-589 is likely already working (albeit illegally).

As I noted in my previous post on the NPRM, the Supreme Court has stated (logically) "in a deportation proceeding ... as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." The immigration court knows that the alien wants to apply for asylum (because the alien has already tried to do so once), but under the current regulations, it has to wait around for the alien to do so (again).

As of June 30, there were 1,206,369 cases pending before the nation's 509 IJs, up from 430,128 in FY 2014 (when there were fewer than half as many IJs). Asylum applications make up a significant portion of those pending cases in that overwhelming backlog — according to the NPRM, there are more than 560,000 defensive asylum applications pending at the courts (46 percent of the total). EOIR hasn't completed as many cases as it has received per annum since FY 2008.

If you are wondering how that backlog got so large, you need look no further than such open-ended regulations as 8 C.F.R. § 1208.3(c)(3). The alien who filed an incomplete I-589 is in removal proceedings (and therefore on the court's docket), and unless the IJ affirmatively sets a date for re-filing of that application, the court has to sit and wait until it is returned, properly completed.

Fortunately, EOIR sets forth a remedy in the NPRM. In particular, it wants to amend that regulation to take the time constraints off of the immigration court, and shift them to where they belong — on the applicant who has filed the incomplete I-589.

Under that regulation as EOIR proposes to amend it, the immigration court (not the "Service") must still reject an incomplete I-589 — only without having to meet a 30-day deadline and the consequent treatment of the application as complete even though it (usually clearly) isn't.

If the immigration court does so, an applicant who still wants to apply for asylum, statutory withholding, or CAT would then have to "correct the deficiencies in the incomplete application and re-file it within 30 days of rejection." Should the applicant fail to do so, the application will be deemed abandoned, and the applicant will be deemed to have waived the opportunity to apply for those protections.

Note, however, that the proposed amendment still provides an applicant who fails to re-file the I-589 with an out, so long as the applicant can show that "exceptional circumstances" prevented timely re-filing. Those "exceptional circumstances" are delineated in a separate proposed regulation (an amendment to 8 C.F.R. § 1003.10(b) that I discussed in Wednesday's post). They include "battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances" outside of the alien's control.

The 30-day deadline for refiling of the I-589 is not a difficult one for the alien to meet. Aliens already know what their claims are (or else they would not be applying for asylum, statutory withholding, and/or CAT), the form itself is not difficult to complete, and if the alien has a meritorious claim, he or she wants that application heard as soon as possible — which means filing a completed I-589. And, in any event (as noted), proper filing starts the 180-day clock that allows the applicant to apply for work authorization.

That deadline will also help to alleviate the crushing immigration-court backlog, to which I referred earlier. The NPRM explains: "Without such a deadline, there is a risk that applicants will delay proceedings based on an assertion that a corrected application will be forthcoming, resulting in wasted immigration judge time." I would substitute "certainty" for "risk" in that sentence (based on the Supreme Court's statement, above), but otherwise, the proposition is sound and correct.

Finally, the 30-day refiling rule will assist IJs in meeting the 180-day deadline Congress mandated for completion of asylum cases (again, absent "exceptional circumstances") in section 208(d)(5)(A)(iii) of the INA (which I discussed at length in Wednesday's post). How?

IJs will often set an asylum claim for a merits hearing based on a promise by the applicant or counsel that a corrected I-589 will be filed in advance of the hearing date. If the application is not, in fact, filed by the hearing date, the hearing slot will be "burned" in IJ parlance (that is, lost for hearing another case).

Under the proposed regulations, those incomplete applications must now be re-filed by a date certain (30 days after they are returned), and if they aren't, the IJ can simply deem the application waived, order the alien removed, and schedule another case that is ready to go in that slot.

EOIR should include the proposed regulation, without amendment, in the final rule. It is good for aliens with meritorious claims who want to have those claims heard quickly, for the government attorney who would otherwise have to prepare for a case that is not actually ready to go forward, and for the IJ in keeping his or her docket on track.

Plus, it will better enable the courts to address the backlog — which they have been otherwise unable to do, as noted, for the last dozen years. It is sound policy, all around.