Proposed Rules Would Speed Asylum, Withholding, and CAT Claims

Regulation: the slower, more complex alternative to certification

By Andrew R. Arthur on June 11, 2020
  • On Wednesday, DOJ and DHS announced that they would begin the process of amending the regulations governing credible fear, reasonable fear, asylum, statutory withholding, and CAT.
  • Those amendments will be published Monday, with a 30-day notice and comment period.
  • Pursuant to those proposed regulations, aliens who are found to have credible fear or reasonable fear will be placed into asylum- or withholding-only proceedings before an immigration judge, instead of removal proceedings. That change is consistent with the expedited removal provision, and will speed adjudication of those cases.
  • The proposed regulations would also direct IJs to consider applicable precedent when reviewing negative credible fear and reasonable fear determinations, codifying current practice.
  • The regulations would also raise the standard of proof for credible fear claims involving statutory withholding and CAT, consistent with the higher burden on applicants for those protections as compared to the burden on asylum applicants.
  • In addition, the regulations would require that aliens in expedited removal proceedings be screened through the credible fear process, instead of simply being released with an NTA to appear in removal proceedings. They would also require asylum officers to consider whether the alien could safely relocate within his or her country in assessing fear.
  • The proposed regulations would also amend the current standards for assessing whether an alien has filed a "frivolous" asylum application (a permanent statutory bar to all immigration benefits), which are limited to solely to the deliberate fabrication of material elements – that is, fraud. The proposed regulation would include applications that are filed despite the fact that the alien knows the claim is not meritorious, weeding out applications brought for improper purposes such as remaining in the United States, obtaining work authorization, or to seek another immigration benefit.
  • Those regulations would also allow IJs to pretermit (dismiss) applications that are not legally viable, eliminating the need for a full evidentiary hearing in a case where an alien ultimately cannot be granted protection. This would preserve judicial resources, allowing the immigration courts to focus on applicants who could be eligible for protection.
  • The proposed regulations would also provide IJs and the BIA with bright-line rules to follow in assessing various issues that have complicated determinations in asylum, statutory withholding, and CAT cases.
  • Finally, the regulations would allow DHS and DOJ to disclose information in applications for asylum, statutory withholding, and CAT protection for a variety of reasons, including as part of a criminal investigation, in response to claims filed by aliens with federal judges seeking release from custody, and to prevent child abuse.
  • Such regulatory rulemaking is an alternative to the Attorney General making these changes through precedent on certification, or the BIA doing so through its decisions.

On Wednesday, the Executive Office for Immigration Review (EOIR – the component of the Department of Justice (DOJ) with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA)) and U.S. Citizenship and Immigration Services (USCIS – the agency within the Department of Homeland Security with responsibility for adjudicating applications for credible fear and reasonable fear in expedited removal proceedings) issued a joint notice of proposed rulemaking (JNPR).

That JNPR proposes amending the regulations governing the adjudication of credible fear claims and applications for asylum, statutory withholding of removal, and protection under the Convention Against Torture (CAT) (and ancillary matters), which are due to be published in the Federal Register on Monday.

Although some observers have breathlessly expressed concerns that it "is an attempt to eliminate the asylum system as we know it", it (largely) really just codifies existing precedent and brings sensible changes to some of the least logical provisions in the current regulations. The proposals in the JNPR will allow good claims to be granted more quickly, deter asylum fraud and abuse, and remove incentives for aliens to enter the United States illegally to apply for relief for which they are not actually eligible.

The JNPR runs 161 pages, but I will highlight eight of the proposed changes today, with individual analysis of each later.

First, under the proposed regulations, aliens who are subject to expedited removal (because they were apprehended by the Border Patrol entering the United States illegally or because they sought entry at the ports of entry without proper documents), and who are found by USCIS to have a credible or reasonable fear of persecution will be placed into "Asylum Only" or "Withholding Only" proceedings before the immigration court.

Currently, those aliens are placed into removal proceedings under section 240 of the Immigration and Nationality Act (INA), despite the fact that the expedited removal provisions in the INA simply direct that those respondents "be detained for further consideration of the application for asylum." Removal proceedings are longer and more extensive (allowing the alien to apply for other forms of relief in apparent contravention of the INA), and require the immigration judge (IJ) to determine whether the alien is removable (a determination that has already been made, by statute, by DHS).

This will expedite consideration of valid asylum claims, and quicker dismissal of non-meritorious ones.

Second, the proposed regulations would direct IJs to consider applicable precedent when reviewing negative credible fear and reasonable fear determinations. This is an unexceptional proposal that simply codifies current practice.

Third, it raises the standard for USCIS asylum officers to follow in adjudicating credible fear cases involving statutory withholding of removal under section 241(b)(3) of the INA and CAT (protections I described in detail in a June 3 post) from a "significant possibility" that the alien can establish, in a hearing on the merits, eligibility for those protections to a "reasonable possibility" of establishing such eligibility.

Setting this as the standard (which is legally the same as the current "well-founded fear" determination that asylum officers and IJs apply in adjudication asylum cases) for those protections is appropriate because the burden of proof that the applicant ultimately bears in obtaining those protections (more likely than not) is higher than that borne by asylum seekers – again, a "well-founded fear". The credible fear standard is supposed to be a screen for separating legitimate claims from non-meritorious ones, and raising the standard advances congressional intent.

I will note that the JNPR does not propose eliminating screening for CAT claims in the expedited removal process and giving the authority to adjudicate CAT claims exclusively to DHS – a proposal that I have advanced recently, because DOJ jurisdiction over CAT is not expressly authorized by Congress. The JNPR is a reasonable compromise (I guess), but it appears that DHS is "bidding against itself" in the regulatory process in this regard.

Fourth, it clarifies the regulations to ensure that aliens who are subject to expedited removal and claim fear will receive credible fear screenings. It is logical (but not expressly stated) that this provision would require those aliens to receive a credible fear screening rather than being released with a Notice to Appear in section 240 removal proceedings. This is true to section 235 of the INA, and will remove many incentives that foreign nationals have to enter the United States illegally (and in particular with children) in waves, anticipating that they will be able to overwhelm DHS resources – as happened last year.

It will also ensure that asylum officers consider the possibility that aliens seeking credible fear can relocate – safely – within their own countries in lieu of entering the United States for protection, as well assess whether the bars to asylum (set forth in section 208(b)(2) of the INA, which apply to persecutors, criminals, aliens who pose a national security risk, and those firmly resettled in third countries) would prevent the credible fear applicant from ultimately obtaining protection. In addition, the proposed regulations direct asylum officers to consider whether those bars would similarly bar the applicant from statutory withholding and withholding under CAT (there are no bars to deferral under CAT, as I have previously explained).

This will have two benefits. The first is that it will expedite the removal of aliens who would not be eligible for asylum to begin with. There is no reason for an asylum officer to make a positive credible fear finding for an alien who would be barred from asylum relief, and asylum officers should have been given this authority when the regulations were initially drafted.

The second benefit is it allows the alien to seek review of a negative credible fear determination from an IJ, who would then have a more complete record for consideration. Those aliens must affirmatively request such review, however – a refusal to seek review would be treated as a waiver.

Aliens who are ineligible for asylum under the bars, but would be eligible to seek statutory withholding of CAT (because they satisfied the "reasonable possibility" standard described above) could have those claims considered in the proposed asylum- and withholding-only proceedings.

Fifth, and importantly, the proposed regulations would change the definition of "frivolous application for asylum." Congress barred aliens who knowingly make such applications, in section 208(d)(6) of the INA, from eligibility for any benefit under the INA. The current regulation (drafted under the Clinton administration) only permits the IJ or BIA to apply this bar if any of the material elements in the asylum application "is deliberately fabricated."

This pinched interpretation of section 208(d)(6) of the INA excludes "frivolous" asylum applications that are brought for some other improper purpose, such as to delay the alien's removal from the United States or to allow the alien to apply for other relief, like 42B cancellation (relief I recently explained in depth, which can only be granted by EOIR). Consequently, asylum applications filed for such improper purposes clog USCIS and the immigration courts.

Had Congress only wanted to bar "fraudulent" applications, it would have used the word. It didn't. The proposed regulation will rectify this error, and give the authority for finding that an asylum application was frivolous to asylum officers, as well as IJs. That said, IJs will still be able to reconsider the asylum officer's determination de novo in removal proceedings, only based on a better reasoned and more robust record. This will deter asylum applications filed for improper purposes, while ensuring that truly meritorious claims can be heard more quickly.

This provision will also protect aliens who are caught making such applications by allowing them to withdraw them and take voluntary departure in lieu of removal, if they waive other relief and their rights to appeal, reopen, and reconsider.

Sixth, the proposed regulations would allow IJs to pretermit (dismiss) legally insufficient asylum, statutory withholding, and CAT claims without a full evidentiary hearing. The regulation would allow either DHS to request the IJ pretermit the application (which would give the alien the opportunity to respond), or the IJ could pretermit the application (after notice and briefing by the applicant) sua sponte, that is on his or her own motion.

This is similar to the "summary judgment" standard that most other courts currently follow, where facts are considered in the best light to the non-moving party and the judge determines whether the movant is entitled to judgment as a matter of law.

And, it is almost identical to the process that IJs currently apply in ruling on motions to reopen, wherein the alien under an order of removal must establish eligibility for some relief or benefit at the reopened hearing – a process with which IJs have extensive experience.

There is no requirement under the INA that the applicant receive a full evidentiary hearing (which can run two hours or many, many more) where an application for protection is not legally sufficient. This will allow the immigration court to quickly dispose of non-meritorious claims, allowing the IJs to adjudicate valid claims for protection more quickly.

Seventh, the proposed regulations would provide IJs and the BIA with bright-line rules to follow in assessing various issues that have complicated determinations in asylum, statutory withholding, and CAT cases.

Specifically, it would: give guidance for those adjudicators in determining whether an alien has shown that he or she has "membership in a particular social group" for purposes of asylum and statutory withholding; clarify the meaning of "political opinion" for such relief; set standards for what constitutes "persecution" for those forms of protection; "provide clearer guidance on situations in which alleged acts of persecution would not be on account of one of the five protected grounds" (known as the "nexus" between the status claimed and the persecution feared); provide factors for adjudicators to consider in determining whether an applicant can avoid persecution by "internally relocating" within the applicant's own country and outline the burdens of proof imposed on the parties with respect to this and related situations; provide specific (but not exhaustive) factors for adjudicators to follow in determining whether an alien has demonstrated eligibility for asylum as a matter of discretion (asylum is discretionary relief, meaning that even if the alien shows eligibility for that protection as a matter of law, he or she must still show it should be granted in the exercise of discretion); revise the definition of "firm resettlement" in a third country; and clarify whether CAT protection should be granted when the government actor in question was a "rogue official", acting without government sanction.

Each of these topics could be the subject of its own post (if not a whole report), but most are either based on case law (or clarify existing case law), congressional intent, or past policies. Each of these provisions will also be the subject of significant commentary in response to the JNPR, as well as significant future litigation.

That said, however, the proposed regulations will provide real, concrete guidance to adjudicators (including circuit court judges and the Supreme Court) to follow in ruling on protection claims. This will, again, expedite the consideration of asylum, statutory withholding, and CAT claims, clearing the path for expedited grants of those protections to respondents who are eligible for them.

And, I would note that in section 103(a)(1) of the INA, Congress gave the Attorney General (AG) responsibility for "determination and ruling . . . with respect to all questions of law", and stated that such determinations and rulings "shall be controlling." The proposed regulations in question are an expression of that statutory authority, a fact that is beyond cavil.

Eighth, the JNPR provides critical amendments to the current regulations governing non-disclosure of information that is provided by aliens in applications for asylum, credible fear, and reasonable fear.

It is important to restrict (to a reasonable degree) the disclosure of such information, in order to prevent future harm to the alien, the alien's family members, and friends by the persecutor in question and/or the alien's home government. The current regulations, however, have led to some absurd results. For example, I once had to tell a federal judge in a separate civil matter that he could not have access to an alien's full file (known and as "A-File"), and that I could not tell him why (which would itself have violated the regulation). Imprisonment for contempt could have been one of the sanctions (my boss told me to take my toothbrush with me), but the regulation is that strict.

The current regulation also inhibits investigations into asylum fraud, where the same (or an extremely similar) application is filed by different aliens in different cases (I am aware of such an investigation where both aliens ended up having to be granted asylum). It similarly can constrain the government from responding to aliens' attempts to gain release via habeas.

To address these and other issues, as the JNPR states, the government proposes to amend the current regulations to allow the government to "disclose all relevant and applicable information in or pertaining to" applications for asylum, statutory withholding, and CAT: for federal or state "investigations, proceeding[s], or prosecution[s]"; "as a defense to any legal action relating to the alien's immigration or custody status"; in relation to "an adjudication of the application itself or an adjudication of any other application or proceeding arising under the immigration laws"; to satisfy "any state or federal mandatory reporting requirement[s]"; and "to deter, prevent, or ameliorate the effects of child abuse."

These amendments will protect vulnerable aliens while ensuring that the non-disclosure provisions are not abused by applicants for those forms of protection.

Comments may be submitted within 30 days of the publication of the JNPR in the Federal Register, and there are likely to be thousands, if not hundreds of thousands, submitted for EOIR and USCIS to sift through. I anticipate that most will present dire and overblown predictions of harms that would result, but (in my opinion, at least) the regulations are either a reasonable compromise or well overdue.

Those who have criticized the AGs under the Trump administration for the issuance of guidance through the certification process should cheer this JNPR—although I seriously doubt they will. Agencies can issue policy guidance and interpret statutes in two ways: by precedent (such as published BIA decisions or AG certification opinions), which is by far simpler and quicker, or by rulemaking (such as the proposed regulations in the JNPR), which is way more cumbersome and time-consuming.

EOIR and USCIS have taken the latter path. The process is long and winding, but in this instance, it is critical if asylum officers are ever to tackle the current backlog in pending affirmative asylum applications (340,810 as of the end of FY 2019, but likely now larger) and IJs are ever to make a dent in their asylum load (more than 476,000 asylum cases as of October 11, 2019, 48 percent of the immigration-court backlog of 987,198 – the former number likely larger, the latter more so).

As importantly, however, the regulations in the JNPR will restore integrity to the asylum system, which has been subjected to abuse over the years. That is a national disgrace. In our secular republic, few things are considered sacred, but our obligation to protect those fleeing persecution is as close as it gets. Instead, and all too often, the very prospect of applying for asylum is peddled as a quick ticket to enter or remain in the United States by smugglers and shysters. That has to stop, and the regulations in the JNPR are a good start.