I reported last week that DHS and DOJ had issued a final rule on regulations to amend asylum, statutory withholding of removal, and protection under the Convention Against Torture (CAT) procedures. Here is a quick overview of the changes — but keep in mind, with a new administration, how long these changes last remains to be seen.
Before I begin by analysis, however, I have two points. First, the final rule is not materially different from the proposed regulations in the June 15 notice of proposed rulemaking (NPRM), which were intended to impose more uniformity in the adjudication of those three forms of protection, and in response to which the Center and I commented in July. Our comments ran almost 40,000 words, and followed up on eight separate posts that I had also published on the NPRM.
The comments and posts provide a significantly more in-depth assessment of the NPRM (and hence the final rule) than my editor would allow here. But if you have questions about the effect of the regulations (at least from my perspective), more analysis can be found there. The eight posts are linked in the comments submitted.
Second, DOJ's Executive Office for Immigration Review (EOIR, which has jurisdiction over the immigration courts and Board of Immigration Appeals (BIA)) published guidance on December 11 on the regulatory changes in the final rule, so if you want to understand the practical effects of the final rule, you can refer to that 14-page summary of the 128-page final rule (single spaced, with three columns per page in the Federal Register) itself.
Effective Date and Applicability
The rule governs adjudications (in respective provisions) by both asylum officers (AOs) in DHS's U.S. Citizenship and Immigration Services (USCIS), and immigration judges (IJs) and the BIA. It is also "purely prospective" — that is, it applies only to credible fear determinations and asylum applications filed on or after its effective date, January 11, 2021. Pending asylum applications filed and credible fear claims made by aliens encountered before that date will proceed under the soon-to-be expired regulations.
Standard of Proof
The final rule raises the standard of proof that aliens claiming credible fear in expedited removal proceedings as well as alien stowaways must meet to proceed on statutory withholding and CAT claims from a "significant possibility" of persecution or torture to a "reasonable possibility" of such harm occurring.
The latter is (legally) the same as the current standard of proof that an alien must meet to receive asylum, and the change reflects the facts that these are screening standards and the burden of proof for statutory withholding and CAT ("more likely than not") is higher than the burden for asylum ("well-founded fear") — to which the statutory credible-fear definition in section 235(b)(1)(B)(v) of the Immigration and Nationality Act (INA) expressly applies.
Note that the credible-fear provision makes no mention of statutory withholding or CAT at all.
Internal Relocation Consideration in Expedited Removal Cases
In addition, the final rule requires AOs and IJs to consider the possibility of internal relocation in the alien's home country in assessing whether there is a significant or reasonable possibility of persecution in making credible fear determinations for aliens in expedited removal proceedings. In other words, if the alien could move back home and escape problems, he or she should.
Application of Bars to Protection
In that vein, the final rule also requires AOs and IJs to determine whether the alien is barred from asylum, statutory withholding, or withholding under CAT in the credible fear process under the bars that are applicable to each. Curiously, prior to the final rule, an alien could be found to have a credible fear even if the alien would eventually be barred from receiving asylum (as a persecutor or because of a conviction for a particularly serious crime, for example).
Circuit Law Applicable to Credible Fear Claims
The final rule also clarifies the law that applies when making a credible fear determination.
As I noted in Tuesday's post, asylum law can vary among the various federal judicial circuits. AOs in particular would apply the most favorable circuit law to the alien's claim in making credible fear decisions (as an IJ in Pennsylvania, however, I would apply controlling Third Circuit law). The final rule makes clear that the law of the circuit in which the decision is made governs, so a credible fear claim in Texas (in the Fifth Circuit) is decided under Fifth Circuit law.
Credible Fear Cases Moved to Asylum-and-Withholding-Only Proceedings
In a procedural change, the final rule moves cases in which credible fear is found from removal proceedings under section 240 of the INA (wherein the alien could ultimately seek any form of relief available under the INA) to "asylum-and-withholding-only proceedings", at which aliens can seek only asylum, statutory withholding, and CAT protection.
As I explained in June, under current regulations, identified alien crewmembers, stowaways, applicants for admission and those admitted under the Visa Waiver Program (VWP), and other limited categories of aliens can only seek to avoid removal in such asylum-and-withholding-only proceedings.
This amendment, logically, will limit aliens who have passed credible fear (because they are ostensibly coming to apply for protection) to those proceedings, as well.
Definition of "Frivolous" Asylum Application, and Its Applicability
The final rule also expands the current limited definition of what constitutes a "frivolous" asylum application.
Under section 208(d)(6) of the INA, if an alien is found to have filed a frivolous asylum application, the alien is barred from all except for an extremely limited number of immigration benefits. The current regulatory definition of "frivolous application for asylum", however, is extremely narrow.
The bar was added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). As I have previously explained, two purposes of IIRIRA were to address weaknesses in border enforcement and in asylum processing.
The filing of frivolous asylum applications is a significant weakness in our asylum-adjudication regime, because it allows otherwise removable aliens to remain in the United States indefinitely as their applications wend their way through the adjudication process (which can take years), usually with employment authorization.
The Clinton administration did not interpret the term as broadly as Congress in IIRIRA intended (a point that I explained in a July post), however. Rather, when it issued 8 C.F.R. § 208.20 (implementing the "frivolous asylum bar" in section 208(d)(6) of the INA) it provided that an asylum application could only be found to be frivolous "if any of its material elements is deliberately fabricated" — in other words, if it were fraudulent or premised on fraud.
Of course, if Congress wanted it to be a "fraudulent" asylum bar, it would have said so. It didn't.
The final rule corrects this "oversight", and makes clear that an asylum application is frivolous if it: contains a fabricated material element; is premised on false or fabricated evidence (unless the application would have been granted without such evidence); is filed without regard to the merits of the claim; or is clearly foreclosed by applicable law.
These changes will discourage the filing of facially deficient asylum claims by aliens simply to remain in the United States and/or obtain employment authorization, and allow meritorious claims to be adjudicated more quickly (USCIS and IJ resources are not limitless).
Currently, only IJs can made a finding of frivolousness. Under the final rule, AOs can make that determination, and if the alien is otherwise removable, that finding can be reviewed by the IJ anew when the case is referred (if the alien is not removable, the asylum application is simply denied).
Pretermission of Asylum Claims
In another amendment that will speed meritorious asylum grants, the final rule will allow IJs to pretermit (that is, deny without a hearing) applications for asylum, statutory withholding, and CAT in which the alien has failed to establish a prima facie claim for protection.
It allows IJs to pretermit applications on their own (after giving the parties 10 days notice, which would allow the alien to fix the claim), or on a motion by DHS (to which the alien must be given time to reply). Again, IJ resources are limited, and this change will allow IJs to quickly process facially invalid claims to focus on meritorious ones.
Guidance on Asylum and Statutory Withholding Factors
The final rule also provides bright-line rules (consistent with case law) to guide asylum and statutory withholding adjudications based on "membership in a particular social group" and "political opinion", two of the five statutory "factors" for those forms of protection.
Unlike the other three factors (race, religion, and nationality), what constitutes a "particular social group" and "political opinion" is vague — and in the former case particularly so.
To clarify the "particular social group" definition, the final rule codifies BIA precedent for assessing whether such a group exists for asylum purposes, and provides a non-exhaustive list of components of such groups that will generally not qualify, including past or present criminal acts or association, attempted recruitment into a criminal organization, targeting based on wealth for financial gain, personal disputes and criminal acts in which the government was not involved, and residence in a high-crime area.
The rule also requires the applicant to define the particular social group with particularity when applying for protection. It is not enough to throw a bunch of past or feared injuries at the IJ, and expect the court to sort it out.
Note that this rule will not necessarily preclude an asylum grant for a claim that contains any of those components. It recognizes, however, that asylum and statutory withholding are limited protections, not general relief available to any individual who has been harmed in any way in the past, or may be in the future.
Or, as the Fifth Circuit has held: "Persecution is a specific term that 'does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.'"
As it relates to political opinion, it is not enough, under the final rule, for the applicant to assert that the applicant disagrees with, disapproves of, or opposes a criminal, terrorist, gang, guerrilla, or other non-state organization. Rather, the applicant must show that he or she has expressed such disagreement, disapproval, or opposition, or that such expression has been imputed to the applicant.
In my comments, I questioned whether this definition was narrow enough, as gangs, and in many cases terrorists and guerrillas, have no stated political agenda at all, but are really just criminal enterprises focused on financial gain. DHS and DOJ did not agree with me, obviously.
Of course, what is commonly thought of as "political opinion" — expressed or imputed opposition to the state or its organs — remains a valid basis for asylum and statutory withholding.
Nexus for Asylum and Statutory Withholding Claims
Similarly, the final rule provides a list of circumstances that will be insufficient to establish a "nexus" for asylum and statutory withholding.
To be granted one of those forms of protection, the applicant must show past persecution or a fear of future persecution "on account of" one of the five factors above (race, religion, nationality, membership in a particular social group, or political opinion). That "on account of" is known as the "nexus" — the connection between the harm and the protected factor.
This is best (if simplistically) explained in the context of a robbery. Imagine that you are robbed, and are wearing a symbol of a religious denomination. Whether you were simply robbed because the actor sought financial gain or you were singled out for "persecution on account of" your religion is a "nexus" question that must be determined by the adjudicator.
Under the final rule, in general, personal animus or retribution; personal animus where the alleged persecutor has not targeted, or manifested an animus against, other members of an alleged particular social group in addition to the member who raised the claim; resistance to recruitment or coercion by criminal, guerrilla, or terrorist organizations; targeting for financial gain based on wealth; criminal activity; perceived, past or present, gang affiliation; and gender will not satisfy the nexus requirement.
Two of the listed classes of harm are of note. Domestic violence claims, without more, would not be sufficient under the second circumstance. This is an issue that the departments — and various courts — have struggled with for more than two decades, and the final rule represents a reasonable compromise of the various takes on what is, admittedly, a very sympathetic issue.
Gender — again without more — also would not qualify, but that is largely consistent with case law. So, simply being a female (for example) from Iran (for example) would not be enough. The rule is broad enough, however, to allow for cognizable claims based on gender plus a separate identifying element.
Discretionary Factors for Asylum
Finally, the final rule provides guidance on whether and when to grant asylum — which unlike statutory withholding and CAT is a discretionary form of protection — in the exercise of discretion.
It provides three significant adverse discretionary factors: unlawful entry into the United States unless the alien was in immediate flight from persecution in a contiguous country or unless the alien is a minor; failure to apply for protection in a third country through which the alien transited to the United States, unless such application was denied or the alien was trafficked; and use of fraudulent documents in an attempt to enter, unless the alien did not transit through a third country on the way to the United States.
There are nine other adverse discretionary factors, two of which are similar to the significant adverse discretion factors as relates to transit through a third country without applying for protection. Five have to do with prior asylum applications (or failures to apply for asylum) in the United States. One relates to tax obligations, and one deals with criminal convictions that would otherwise bar the alien from asylum but for post-conviction relief, unless the alien was subsequently found not guilty.
The last factor will limit the ability of state courts to provide their own "relief" to aliens by erasing or reducing the sentences for convictions that would have otherwise barred asylum grants. Immigration is an exclusively federal issue, in which the states (including state courts) have no jurisdiction, except in limited circumstances.
There are other issues that are covered in the regulations contained in the final rule, but these are the major ones.
If fully implemented, these regulations will provide better guidance to adjudicators in evaluating asylum, statutory withholding, and CAT claims than has been available in the past, will conform the process for adjudicating those claims to language of the INA better than do the current regulations, and will expedite valid claims.
The latter point is the most important, because granting a valid application allows the alien to settle into the United States with protection, and the granting of asylum allows the asylee to petition for relatives abroad to follow the asylee to this country. Many of those relatives are in danger, too — either on the same ground as the asylee, or because of that relationship to the asylee.
The administration of president-elect Joe Biden may attempt to amend or scrap these regulations (he has already stated that he intends to facilitate domestic violence claims), but that could be a complicated process. It is more likely that a Biden DOJ will not defend the changes in the final rule in the courts, but that to some degree requires compliance by those courts. Some will likely be more willing to go along than others. At this point, it is all speculative how Biden and the courts will proceed.