80274 Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Rules and Regulations 

1 In addition to the amendments outlined in more 

detail herein, the Departments also proposed 

additional minor amendments for clarity, such as 

replacing references to the former Immigration and 

Naturalization Service with references to DHS 

where appropriate (see, e.g., 8 CFR 208.13(b)(3)(ii)) 

or replacing forms listed by form number with the 

form’s name (see, e.g., 8 CFR 1003.42(e)). The 

Departments also further reiterate the full 

explanation and justifications for the proposed 

changes set out in the preamble to the NPRM. 85 

FR at 36265–88. 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 208 and 235 

RIN 1615–AC42 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Parts 1003, 1208, and 1235 

[EOIR Docket No. 18–0102; A.G. Order No. 

4922–2020] 

RIN 1125–AA94 

Procedures for Asylum and 

Withholding of Removal; Credible Fear 

and Reasonable Fear Review 

AGENCY: Department of Homeland 

Security; Executive Office for 

Immigration Review, Department of 

Justice. 

ACTION: Final rule. 

SUMMARY: On June 15, 2020, the 

Department of Homeland Security 

(‘‘DHS’’) and the Department of Justice 

(‘‘DOJ’’) (collectively ‘‘the 

Departments’’) published a notice of 

proposed rulemaking (‘‘NPRM’’ or 

‘‘proposed rule’’) that would amend the 

regulations governing credible fear 

determinations. The proposed rule 

would make it so that individuals found 

to have a credible fear will have their 

claims for asylum, withholding of 

removal under section 241(b)(3) of the 

Immigration and Nationality Act (‘‘INA’’ 

or ‘‘the Act’’) (‘‘statutory withholding of 

removal’’), or protection under the 

regulations issued pursuant to the 

legislation implementing the 

Convention Against Torture and Other 

Cruel, Inhuman, or Degrading Treatment 

or Punishment (‘‘CAT’’), adjudicated by 

an immigration judge within the 

Executive Office for Immigration 

Review (‘‘EOIR’’) in streamlined 

proceedings (rather than under section 

240 of the Act), and to specify what 

standard of review applies in such 

streamlined proceedings. The 

Departments further proposed changes 

to the regulations regarding asylum, 

statutory withholding of removal, and 

withholding and deferral of removal 

under the Convention Against Torture 

(‘‘CAT’’) regulations. The Departments 

also proposed amendments related to 

the standards for adjudication of 

applications for asylum and statutory 

withholding. This final rule (‘‘rule’’ or 

‘‘final rule’’) responds to comments 

received in response to the NPRM and 

generally adopts the NPRM with few 

substantive changes. 

DATES: This rule is effective on January 

11, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Lauren Alder Reid, Assistant Director, 

Office of Policy, Executive Office for 

Immigration Review, 5107 Leesburg 

Pike, Falls Church, VA 22041, telephone 

(703) 305–0289 (not a toll-free call). 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary of the Final Rule 

On June 15, 2020, the Departments 

published an NPRM that would amend 

the regulations governing credible fear 

determinations to establish streamlined 

proceedings under a clarified standard 

of review. Procedures for Asylum and 

Withholding of Removal; Credible Fear 

and Reasonable Fear Review, 85 FR 

36264 (June 15, 2020). The proposed 

rule would also amend regulations 

regarding asylum, statutory withholding 

of removal, and withholding and 

deferral of removal under the 

regulations. Id. 

The following discussion describes 

the provisions of the final rule, which 

is substantially the same as the NPRM, 

and summarizes the changes made in 

the final rule. 

A. Authority and Legal Framework 

The Departments are publishing this 

final rule pursuant to their respective 

authorities under the Immigration and 

Nationality Act (‘‘INA’’) as amended by 

the Homeland Security Act of 2002 

(‘‘HSA’’), Public Law 107–296, 116 Stat. 

2135. 

The INA, as amended by the HSA, 

charges the Secretary ‘‘with the 

administration and enforcement of this 

chapter [titled ‘‘Immigration and 

Nationality’’] and all other laws relating 

to the immigration and naturalization of 

aliens’’ and granted the Secretary the 

power to take all actions ‘‘necessary for 

carrying out’’ the provisions of the 

immigration and nationality laws. INA 

103(a)(1) and (3), 8 U.S.C. 1103(a)(1) 

and (3); See HSA, sec. 1102, 116 Stat. 

at 2273–74; Consolidated 

Appropriations Resolution of 2003, 

Public Law 108–7, sec. 105, 117 Stat. 11, 

531. 

The HSA charges the Attorney 

General with ‘‘such authorities and 

functions under this chapter and all 

other laws relating to the immigration 

and naturalization of aliens as were 

[previously] exercised by [EOIR], or by 

the Attorney General with respect to 

[EOIR] . . . .’’ INA 103(g)(1), 8 U.S.C. 

1103(g)(1); see 6 U.S.C. 521; HSA, sec. 

1102, 116 Stat. at 2274. 

Furthermore, the Attorney General is 

authorized to ‘‘establish such 

regulations, prescribe such forms of 

bond, reports, entries, and other papers, 

issue such instructions, review such 

administrative determinations in 

immigration proceedings, delegate such 

authority, and perform such other acts 

as the Attorney General determines to 

be necessary for carrying out this 

section.’’ INA 103(g)(2), 8 U.S.C. 

1103(g)(2); HSA, sec. 1102, 116 Stat. 

2135, 2274. 

B. Changes in the Final Rule 

Through the NPRM, the Departments 

sought to satisfy a basic tenet of asylum 

law: To assert a ‘‘government’s right and 

duty to protect its own resources and 

citizens, while aiding those in true need 

of protection from harm.’’ 85 FR at 

36265 (citations omitted). To achieve 

this dual aim, the Departments 

proposed numerous amendments to the 

DHS and DOJ regulations.1 After 

carefully reviewing all of the comments 

received on the NPRM, the Departments 

are making the following changes to the 

final rule. 

This final rule makes thirteen nonsubstantive changes to the regulatory 

provisions in the proposed rule, some of 

which were noted by commenters. First, 

the final rule corrects a typographical 

error—i.e. ‘‘part’’ rather than ‘‘party’’— 

in 8 CFR 208.30(e)(2)(ii), which was 

proposed to read, ‘‘Such other facts as 

are known to the officer, including 

whether the alien could avoid a future 

threat to his or her life or freedom by 

relocating to another party of the 

proposed country of removal and, under 

all circumstances, it would be 

reasonable to expect the applicant to do 

so’’ (emphasis added). Second, the 

Departments added the word ‘‘for’’ to 

correct the form name ‘‘Application for 

Asylum and for Withholding of 

Removal’’ at 8 CFR 208.31(g)(2), 

1208.30(g)(2)(iv)(B), and 1208.31(g)(2). 

Third, the Departments are replacing the 

word ‘‘essential’’ with the word 

‘‘material’’ in 8 CFR 208.20(c)(1) and 

1208.20(c)(1), consistent with the stated 

intent of the NPRM. 

Fourth, the Departments are making 

stylistic revisions to 8 CFR 208.15(a)(1) 

and 1208.15(a)(1), including breaking 

them into three subparagraphs, to make 

them easier to follow and to reduce the 

risk of confusion. Fifth, the Departments 


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2The NPRM did not use the term ‘‘rogue official’’ 

in 8 CFR 1208.16(b)(3)(iv); rather it referred to 

‘‘officials acting outside their official capacity.’’ The 

discrepancy regarding this phrasing between 8 CFR 

208.16(b)(3)(iv) 8 CFR 1208.16(b)(3)(iv) in the 

NPRM was inadvertent, and the Departments are 

correcting it accordingly in both regulations in the 

final rule. 

3See UN General Assembly, Convention Against 

Torture and Other Cruel, Inhuman or Degrading 

Treatment or Punishment, 10 December 1984, 

United Nations, Treaty Series, vol. 1465, p. 85. 

are editing the temporal language in 8 

CFR 208.15(a)(3)(i) and (ii) and 

1208.15(a)(3)(i) for clarity and 

consistency with similar language in 8 

CFR 208.15(a)(2) and 1208.15(a)(2). The 

edited language clarifies the relevant 

temporal scope to read ‘‘after departing 

his country of nationality or last 

habitual residence and prior to arrival in 

or entry into the United States’’ in lieu 

of the language in the NPRM. Sixth, the 

Departments are striking the 

parenthetical phrase ‘‘(‘‘rogue official’’)’’ 

in 8 CFR 208.18(a)(1) and 1208.18(a)(1). 

Relatedly, they are replacing the 

remaining uses of the phrase ‘‘rogue 

official’’ in 8 CFR 208.16(b)(3)(iv), 

208.18(a)(1), and 1208.18(a)(1) with its 

definition, ‘‘public official who is not 

acting under color of law.’’ 2 Seventh, 

the Departments are adding the 

clarifying phrase ‘‘as defined in section 

212(a)(9)(B)(ii) and (iii) of the Act’’ to 8 

CFR 208.13(d)(2)(i)(D) and 

1208.13(d)(2)(i)(D) consistent with the 

intent of the NPRM. Eighth, the 

Departments are clarifying the language 

in 8 CFR 208.1(g) and 1208.1(g) to 

alleviate apparent confusion and 

improve consistency with the intent of 

the NPRM regarding the use of 

stereotypes as evidence for an asylum 

claim. A bald statement that a country 

or its denizens have a particular cultural 

trait that causes citizens, nationals, or 

residents of that country to engage in 

persecution is evidence lacking in 

probative value and has no place in an 

adjudication. 

Ninth, the Departments are making 

conforming edits to 8 CFR 208.6(a) and 

(b) and 8 CFR 1208.6(a) and (b) to make 

clear that the disclosure provisions of 8 

CFR 208.6 and 1208.6 apply to 

applications for withholding of removal 

under the INA and for protection under 

the regulations implementing the CAT,3

and not solely to asylum applications. 

That point is already clear in 8 CFR 

208.6(d), (e) and 1208.6(d), (e), and the 

Departments see no reason not to 

conform the other paragraphs in that 

section for consistency. Tenth, and 

relatedly, the Departments are making 

edits to 8 CFR 208.6(a), (b), (d) and (e) 

and 8 CFR 1208.6(a) and (b), (d), and (e) 

to make clear that applications for 

refugee admission pursuant to INA 

207(c)(1), 8 U.S.C. 1157(c)(1), and 8 CFR 

part 207 are subject to the same 

information disclosure provisions as 

similar applications for asylum, 

withholding of removal under the INA, 

and protection under the regulations 

implementing the CAT. The 

Departments already apply the 

disclosure provisions to such 

applications as a matter of policy and 

see no basis to treat such applications 

differently than those for protection 

filed by aliens already in or arriving in 

the United States. Eleventh, the 

Departments are amending 8 CFR 

208.13(d)(2)(ii) to reflect that, 

operationally, DHS may refer or deny an 

asylum application, depending on the 

circumstances of the applicant. See 8 

CFR 208.14. Twelfth, the Departments 

are correcting 8 CFR 1208.30(g)(1)(i), (ii) 

to reflect that asylum officers issue 

determinations, not orders. See 8 CFR 

208.30(e). 

Thirteenth, EOIR is making a 

conforming change to 8 CFR 1244.4(b) 

to align it with the both the appropriate 

statutory citation and the corresponding 

language in 8 CFR 244.4(b). Aliens 

described in INA 208(b)(2)(A), 8 U.S.C. 

1158(b)(2)(A), including those subject to 

the firm resettlement bar contained in 

INA 208(b)(2)(A)(vi), 8 U.S.C. 

1158(b)(2)(A)(vi), are ineligible for 

Temporary Protected Status. That 

statutory ineligibility ground is 

incorporated into regulations in both 

chapter I and chapter V of title 8; 

however, while the title I provision, 8 

CFR 244.4(b), cites the correct statutory 

provision—INA 208(b)(2)(A)(vi), 8 

U.S.C. 1158(b)(2)(A)(vi)—the title V 

provision, 8 CFR 1244.4(b), maintains 

an outdated reference to an incorrect 

statutory provision. Compare 8 CFR 

244.4(b) (referencing INA 208(b)(2)(A), 8 

U.S.C. 1158(b)(2)(A)), with 8 CFR 

1244.4(b) (referencing former INA 

243(h)(2), 8 U.S.C. 1253(h)(2)). 

The Departments are also making four 

non-substantive changes in the final 

rule to correct regulatory provisions that 

were inadvertently changed or deleted 

in the proposed rule or that introduced 

an unnecessary redundancy. First, the 

final rule reinserts language relating to 

DHS’s ability to reconsider a negative 

credible fear finding that has been 

concurred upon by an immigration 

judge after providing notice of its 

reconsideration to the immigration 

judge, which was inadvertently 

removed from 8 CFR 

1208.30(g)(2)(iv)(A) in the NPRM. The 

final rule reinserts that language in 8 

CFR 208.30(g)(2)(i); it pertains to a DHS 

procedure and, thus, appropriately 

belongs in chapter I, rather than chapter 

V, of title 8. 

Second, the final rule strikes the 

regulatory text changes proposed to 8 

CFR 103.5. Those changes were not 

discussed in the preamble to the NPRM 

and were inadvertently included in the 

NPRM’s proposed regulatory text. 

Third, the final rule reinserts the 

consideration—of-novel-or-uniqueissues language in 8 CFR 208.30(e)(4) 

that was inadvertently proposed to be 

removed in the NPRM, with 

modifications to account for changes in 

terminology adopted via this final rule 

(specifically, ‘‘[i]n determining whether 

the alien has a credible fear of 

persecution, as defined in section 

235(b)(1)(B)(v) of the Act, or a 

reasonable possibility of persecution or 

torture, the asylum officer shall consider 

whether the alien’s case presents novel 

or unique issues that merit 

consideration in a full hearing before an 

immigration judge.’’). 

Fourth, this final rule removes the 

following sentence from the proposed 8 

CFR 208.30(e)(4): ‘‘An asylum officer’s 

determination will not become final 

until reviewed by a supervisory asylum 

officer.’’ Nearly identical text already 

exists in 8 CFR 208.30(e)(8) and would 

be repetitive to include in 8 CFR 

208.30(e)(4). 

In response to issues raised by 

commenters or to eliminate potential 

confusion caused by the drafting in the 

NPRM, the Departments are making five 

additional changes to the NPRM in the 

final rule. First, the Departments are 

amending the waiver provision in 8 CFR 

208.1(c) and 1208.1(c) related to claims 

of ineffective assistance of counsel to 

provide an exception for egregious 

conduct on the part of counsel. As 

discussed, infra, the Departments 

believe that cognizable ineffective 

assistance of counsel claims in the 

context of failing to assert a particular 

social group should be extremely rare. If 

a particular social group is not asserted 

because the alien did not tell his or her 

counsel about it, then there has been no 

ineffective assistance on the part of 

counsel. If the alien did provide his or 

her counsel with a particular social 

group and counsel elected not to present 

it as a strategic choice, then there is no 

basis to reopen the proceedings. See 

Matter of B–B-, 22 I&N Dec. at 310 

(‘‘subsequent dissatisfaction with a 

strategic decision of counsel is not 

grounds to reopen’’). Nevertheless, the 

Departments recognize there may be sui 

generis situations in which ‘‘egregious 

circumstances’’ may warrant reopening 

due to ineffective assistance of counsel 

in this context, provided that 

appropriate procedural requirements for 

such a claim are observed. Thus, the 

Departments are adding such an 


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4 In addition, DOJ proposed a technical correction 

to 8 CFR 1003.1(b), which establishes the 

jurisdiction of the BIA, to correct the reference to 

8 CFR 1208.2 in paragraph (b)(9) and ensure that 

the regulations accurately authorize BIA review in 

‘‘asylum-and-withholding-only’’ proceedings. 

exception to the final rule, consistent 

with existing case law. See id. (‘‘The 

respondents opted for a particular 

strategy and form of relief, and although 

they might wish to fault their former 

attorney and recant that decision, they 

are nonetheless bound by it, unless they 

can show egregious conduct on 

counsel’s part.’’); see also Matter of 

Velasquez, 19 I&N Dec. 377, 377 (BIA 

1986) (concession of attorney is binding 

on an alien absent egregious 

circumstances). 

Second, the Departments are 

amending the language in 8 CFR 

208.1(e) and 1208.1(e) regarding when 

threats may constitute persecution to 

clarify that particularized threats of 

severe harm of an immediate and 

menacing nature made by an identified 

entity or person may constitute 

persecution, though the Departments 

expect that such cases will be rare. This 

revision, as discussed infra, is 

consistent with existing case law. See 

Duran-Rodriguez v. Barr, 918 F.3d 1025, 

1028 (9th Cir. 2019) (‘‘death threats 

alone can constitute persecution’’ but 

‘‘they constitute ‘persecution in only a 

small category of cases, and only when 

the threats are so menacing as to cause 

significant actual suffering or harm’ ’’ 

(citation omitted)). As noted, threats 

‘‘combined with confrontation or other 

mistreatment’’ are likely to be 

persecution; however, ‘‘cases with 

threats alone, particularly anonymous 

or vague ones, rarely constitute 

persecution.’’ Id. (citation omitted) 

(emphasis added); see also Juan Antonio 

v. Barr, 959 F.3d 778, 794 (6th Cir. 2020) 

(threats alone amount to persecution 

only when they are ‘‘of the most 

immediate and menacing nature’’ 

(citation omitted)). 

Third, in recognition of commenters’ 

concerns and the reality that aliens 

under the age of 18, especially very 

young children, may not have 

decisional independence regarding an 

illegal entry into the United States, the 

Departments are amending 8 CFR 

208.13(d)(1)(i) and 1208.13(d)(1)(i) to 

reflect that an unlawful or attempted 

unlawful entry into the United States by 

an alien under the age of 18 will not be 

considered as a significant adverse 

discretionary factor in considering a 

subsequent asylum application filed by 

such an alien. The Departments do not 

believe that a similar exception is 

warranted in 8 CFR 208.13(d)(1)(ii) and 

(iii), and 1208.13(d)(1)(ii) and (iii), 

however. For (d)(1)(ii) to apply to an 

alien under the age of 18, that alien 

must have filed an asylum application 

in the United States, notwithstanding 

any language barriers or other 

impediments; thus, there is no reason to 

assume categorically that such an alien 

could not have filed an application for 

protection in another country. 

Consequently, the Departments find that 

no age exemption is warranted in 8 CFR 

208.13(d)(1)(ii) and 1208.13(d)(1)(ii). 

Further, as discussed, infra, there is no 

reason that an alien of any age would 

need to use fraudulent documents to 

enter the United States in order to seek 

asylum. Accordingly, no age exemption 

is warranted in 8 CFR 208.13(d)(1)(iii) 

and 1208.13(d)(1)(iii). Even without age 

exemptions, the Departments note that 

these discretionary factors do not 

constitute bars to asylum and that 

adjudicators may appropriately consider 

an applicant’s age in assessing whether 

a particular application warrants being 

granted as a matter of discretion. 

Fourth, in response to commenters’ 

concerns about the applicable effective 

date of the frivolousness provisions in 8 

CFR 208.20 and 1208.20, the 

Departments have clarified the language 

in those provisions. The amendments to 

those provisions provided in this rule 

apply only to asylum applications filed 

on or after the effective date of the rule. 

The current definition of 

‘‘frivolousness’’ will continue to apply 

to asylum applications filed between 

April 1, 1997, and the effective date of 

the rule. 

Fifth, to avoid confusion and 

potential conflict between the proposed 

language of 8 CFR 208.20(b) and 

1208.20(b) and 8 CFR 208.20(d) and 

1208.20(d), the Departments are deleting 

language in the former regarding an 

alien’s opportunity to account for issues 

with a claim. The intent of the NPRM, 

expressed unequivocally in the 

proposed addition of 8 CFR 208.20(d) 

and 1208.20(d), was clear that 

adjudicators would not be required to 

provide ‘‘multiple opportunities for an 

alien to disavow or explain a knowingly 

frivolous application.’’ 85 FR at 36276. 

The Departments inadvertently retained 

language from the current rule in the 

proposed additions of 8 CFR 208.20(b) 

and 1208.20(b), however, that was in 

tension with that intent. Compare, e.g., 

8 CFR 208.20(b) (proposed) (‘‘Such 

finding [of frivolousness] will only be 

made if the asylum officer is satisfied 

that the applicant has had sufficient 

opportunity to account for any 

discrepancies or implausible aspects of 

the claim.’’), with 8 CFR 208.20(d) 

(proposed) (‘‘If the alien has been 

provided the warning required by 

section 208(d)(4)(A) of the Act, he or she 

need not be given any additional or 

further opportunity to account for any 

issues with his or her claim prior to the 

entry of a frivolous finding.’’). 

Accordingly, in the final rule, the 

Departments are deleting the sentence 

from 8 CFR 208.20(b) and 1208.20(b) 

regarding an alien’s opportunity to 

address issues with his or her claim 

after receiving the statutory warning 

regarding the knowing filing of a 

frivolous asylum application to avoid 

any residual confusion on the point. 

The following discussion describes 

the provisions of the final rule, which 

are substantially the same as the NPRM, 

and also incorporates the changes made 

in the final rule summarized above. 

C. Provisions of the Final Rule 

1. Expedited Removal and Screenings in 

the Credible Fear Process 

1.1. Asylum-and-Withholding-Only 

Proceedings for Aliens With Credible 

Fear 

DOJ is amending 8 CFR 1003.1, 8 CFR 

1003.42(f), 8 CFR 1208.2, 8 CFR 

1208.30, and 8 CFR 1235.6—and DHS is 

amending 8 CFR 208.2(c), 8 CFR 

208.30(e)(5) and (f), and 8 CFR 

235.6(a)(1)—so that aliens who establish 

a credible fear of persecution, a 

reasonable possibility of persecution, or 

a reasonable possibility of torture and 

accordingly receive a positive fear 

determination would appear before an 

immigration judge for ‘‘asylum-andwithholding-only’’ proceedings under 8 

CFR 208.2(c)(1) and 8 CFR 1208.2(c)(1). 

Such proceedings would be adjudicated 

in the same manner that currently 

applies to certain alien crewmembers, 

stowaways, and applicants for 

admission under the Visa Waiver 

Program, among other categories of 

aliens who are not entitled by statute to 

proceedings under section 240 of the 

Act, 8 U.S.C. 1229a. See 8 CFR 

208.2(c)(1)(i)–(viii), 1208.2(c)(1)(i)– 

(viii).4 Additionally, to ensure that these 

claims receive the most expeditious 

consideration possible, the Departments 

are amending 8 CFR 208.5 and 8 CFR 

1208.5 to require DHS to make available 

appropriate applications and relevant 

warnings to aliens in its custody who 

have expressed a fear in the expedited 

removal process and received a positive 

determination. The Departments believe 

that this change would bring the 

proceedings in line with the statutory 

objective that the expedited removal 

process be streamlined and efficient. 


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1.2. Consideration of Precedent in 

Credible Fear Determinations 

DOJ is adding language to 8 CFR 

1003.42(f) to specify that an 

immigration judge will consider 

applicable legal precedent when 

reviewing a negative fear determination. 

This instruction would be in addition to 

those currently listed in 8 CFR 1003.42 

to consider the credibility of the alien’s 

statements and other facts of which the 

immigration judge is aware. These 

changes would codify in the regulations 

the current practice and provide a clear 

requirement to immigration judges that 

they must consider and apply all 

applicable law, including administrative 

precedent from the Board of 

Immigration Appeals (‘‘BIA’’), decisions 

of the Attorney General, decisions of the 

Federal courts of appeals binding in the 

jurisdiction where the immigration 

judge conducting the review sits, and 

decisions of the Supreme Court. 

1.3. Remove and Reserve DHS-Specific 

Procedures From DOJ Regulations 

DOJ is removing and reserving the 

following provisions in chapter V of 8 

CFR: 8 CFR 1235.1, 8 CFR 1235.2, 8 CFR 

1235.3, and 8 CFR 1235.5. When the 

Department first incorporated part 235 

into 1235, it stated that ‘‘nearly all of the 

provisions * * * affect bond hearings 

before immigration judges.’’ Aliens and 

Nationality; Homeland Security; 

Reorganization of Regulations, 68 FR 

9823, 9826 (Feb. 28, 2003). Upon further 

review, the Department determined that 

these sections regard procedures that are 

specific to DHS’s examinations of 

applicants for admission as set forth in 

8 CFR 235.1, 8 CFR 235.2, 8 CFR 235.3, 

and 8 CFR 235.5, and do not need to be 

duplicated in the regulations for EOIR 

in Chapter V, except for the provisions 

in 8 CFR 1235.4, relating to the 

withdrawal of an application for 

admission, and 8 CFR 1235.6, relating to 

the referral of cases to an immigration 

judge. 

In comparison to the NPRM, this final 

rule is making an additional technical 

amendment by updating the outdated 

reference to ‘‘the Service’’ in 8 CFR 

1235.6(a)(1)(ii) to read ‘‘DHS.’’ 

1.4. Reasonable Possibility Standard for 

Statutory Withholding of Removal and 

Torture-Related Fear Determinations 

The Departments are amending 8 CFR 

208.30 and 8 CFR 1208.30 to clarify and 

raise the statutory withholding of 

removal screening standard and the 

torture-related screening standard under 

the CAT regulations for aliens in 

expedited removal proceedings and 

stowaways. Specifically, the 

Departments are amending 8 CFR 

208.30 and 8 CFR 1208.30 to raise the 

standard of proof in credible fear 

screenings from a significant possibility 

that the alien can establish eligibility for 

statutory withholding of removal to a 

reasonable possibility that the alien 

would be persecuted because of his or 

her race, religion, nationality, 

membership in a particular social group, 

or political opinion. See 8 CFR 208.16, 

208.30(e)(2), 1208.16. Similarly, for 

aliens expressing a fear of torture, the 

Departments are amending 8 CFR 

208.30 and 8 CFR 1208.30 to raise the 

standard of proof from a significant 

possibility that the alien is eligible for 

withholding or deferral of removal 

under the CAT regulations to a 

reasonable possibility that the alien 

would be tortured in the country of 

removal. See 8 CFR 208.18(a), 

208.30(e)(3), 1208.18(a); 85 FR at 36268. 

Consistent with INA 235(b)(1)(B)(v), 8 

U.S.C. 1225(b)(1)(B)(v), the asylum 

eligibility screening standard (a 

significant possibility that the alien 

could establish eligibility for asylum) 

currently applied in credible fear 

screenings remains unchanged. See INA 

235(b)(1)(B)(v), 8 U.S.C. 

1225(b)(1)(B)(v). By clarifying and 

applying the ‘‘reasonable possibility’’ 

standard to the statutory withholding of 

removal screening and the torturerelated screening under the CAT 

regulations, the alien’s screening 

burdens would become adequately 

analogous to the merits burdens, where 

the alien’s burdens for statutory 

withholding of removal and protections 

under the CAT regulations are higher 

than the burden for asylum. 

The Departments are also amending 8 

CFR 208.30, 8 CFR 1208.30, and 8 CFR 

1003.42 to refer to the screenings of 

aliens in expedited removal proceedings 

and of stowaways for statutory 

withholding of removal as ‘‘reasonable 

possibility of persecution’’ 

determinations and the screening for 

withholding and deferral of removal 

under the CAT regulations as 

‘‘reasonable possibility of torture’’ 

determinations, in order to avoid 

confusion between the different 

standards of proof. 

In conjunction with the edits to DHS’s 

regulation in 8 CFR 208.30, DOJ is 

amending 8 CFR 1208.30. Currently, 

after an asylum officer determines that 

an alien lacks a credible fear of 

persecution or torture, the regulation 

provides that an immigration judge in 

EOIR reviews that determination under 

the credible fear (‘‘significant 

possibility’’) standard. 8 CFR 208.30(g), 

1208.30(g). DHS’s ‘‘reasonable 

possibility’’ screening standard for 

statutory withholding of removal and 

CAT protection claims is a mismatch 

with EOIR’s current regulation, which 

does not provide for a reasonable 

possibility review process in the 

expedited removal context. Therefore, 

DOJ is modifying 8 CFR 1208.30(g) to 

clarify that credible fear of persecution 

determinations (i.e., screening for 

asylum eligibility) would continue to be 

reviewed under a ‘‘credible fear’’ 

(significant possibility) standard, but 

screening determinations for eligibility 

for statutory withholding of removal 

and protection under the CAT 

regulations would be reviewed under a 

‘‘reasonable possibility’’ standard. 

Additionally, to clarify terminology in 

8 CFR 208.30(d)(2), mention of the Form 

M–444, Information about Credible Fear 

Interview in Expedited Removal Cases, 

is replaced with mention of relevant 

information regarding the ‘‘fear 

determination process.’’ This change 

clarifies that DHS may relay information 

regarding screening for a reasonable 

possibility of persecution and a 

reasonable possibility of torture, in 

addition to a credible fear of 

persecution. 

DHS is also revising the language in 

8 CFR 208.30(e)(1) to interpret the 

‘‘significant possibility’’ standard that 

Congress established in section 

235(b)(1)(B)(v) of the Act, 8 U.S.C. 

1225(b)(1)(B)(v). 

In comparison to the NPRM, this final 

rule is correcting a typographical error— 

i.e. ‘‘part’’ rather than ‘‘party’’—in 8 

CFR 208.30(e)(2)(ii). The sentence now 

reads: ‘‘Such other facts as are known to 

the officer, including whether the alien 

could avoid a future threat to his or her 

life or freedom by relocating to another 

part of the proposed country of removal 

and, under all circumstances, it would 

be reasonable to expect the applicant to 

do so[.]’’ In addition, this final rule adds 

the word ‘‘for’’ to correct the form name 

‘‘Application for Asylum and for 

Withholding of Removal’’ at 8 CFR 

1208.30(g)(2)(iv)(B). This final rule also 

reinserts language allowing DHS to 

reconsider a negative credible fear 

finding that has been concurred upon by 

an immigration judge after providing 

notice of its reconsideration to the 

immigration judge, which was 

inadvertently removed from 8 CFR 

1208.30(g)(2)(iv)(A) in the NPRM. The 

final rule reinserts that language in 8 

CFR 208.30(g)(2)(i) because it pertains to 

a DHS procedure and, thus, 

appropriately belongs in chapter I, 

rather than chapter V, of title 8. 


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5On July 16, 2019, the Departments issued an 

interim final rule providing that certain aliens 

described in 8 CFR 208.13(c)(4) or 1208.13(c)(4) 

who enter, attempt to enter, or arrive in the United 

States across the southern land border on or after 

such date, after transiting through at least one 

country outside the alien’s country of citizenship, 

nationality, or last lawful habitual residence en 

route to the United States, will be found ineligible 

for asylum (and, because they are subject to this bar, 

not be able to establish a credible fear of 

persecution) unless they qualify for certain 

exceptions. See Asylum Eligibility and Procedural 

Modifications, 84 FR 33829 (July 16, 2019). On July 

24, 2019, the U.S. District Court for the Northern 

District of California enjoined the Departments 

‘‘from taking any action continuing to implement 

the Rule’’ and ordered the Departments ‘‘to return 

to the pre-Rule practices for processing asylum 

applications.’’ E. Bay Sanctuary Covenant v. Barr, 

385 F. Supp. 3d 922, 960 (N.D. Cal. 2019). On 

August 16, 2019, the U.S. Court of Appeals for the 

Ninth Circuit issued a partial stay of the 

preliminary injunction so that the injunction 

remained in force only in the Ninth Circuit. E. Bay 

Sanctuary Covenant v. Barr, 934 F.3d 1026, 1028 

(9th Cir. 2019). On September 9, 2019, the district 

court then reinstated the nationwide scope of the 

injunction. E. Bay Sanctuary Covenant v. Barr, 391 

F. Supp. 3d 974 (N.D. Cal. 2019). Two days later, 

the Supreme Court stayed the district court’s 

injunction. Barr v. East Bay Sanctuary Covenant, 

140 S. Ct. 3 (2019). On July 6, 2020, the Ninth 

Circuit affirmed the district court’s injunction. E. 

Bay Sanctuary Covenant v. Barr, 964 F.3d 832 (9th 

Cir. 2020). Additionally, on June 30, 2020, the 

interim final rule was vacated by the D.C. District 

Court in Capital Area Immigrants’ Rights (‘‘CAIR’’) 

Coalition, et al. v. Trump, 19–cv–02117 (D.D.C. 

2020) and I.A., et al. v. Barr, 19–cv–2530 (D.D.C. 

2020). 

On November 9, 2018, the Departments issued an 

interim final rule providing that certain aliens 

described in 8 CFR 208.13(c)(3) or 8 CFR 

1208.13(c)(3) who entered the United States in 

contravention of a covered Presidential 

proclamation or order are barred from eligibility for 

asylum. See Aliens Subject to a Bar on Entry Under 

Certain Presidential Proclamations; Procedures for 

Protection Claims, 83 FR 55934 (Nov. 9, 2018). On 

December 19, 2018, the U.S. District Court for the 

Northern District of California enjoined the 

Departments ‘‘from taking any action continuing to 

implement the Rule’’ and ordered the Departments 

‘‘to return to the pre-Rule practices for processing 

asylum applications.’’ E. Bay Sanctuary Covenant v. 

Trump, 354 F. Supp. 3d 1094, 1121 (N.D. Cal. 

2018). On February 28, 2020, the U.S. Court of 

Appeals for the Ninth Circuit affirmed the 

injunction. E. Bay Sanctuary Covenant v. Trump, 

950 F.3d 1242, 1284 (9th Cir. 2020). The 

Departments in this rule do not make any 

1.5. Amendments to the Credible Fear 

Screening Process 

The Departments further amend 8 

CFR 208.30, 8 CFR 1208.30, and 8 CFR 

1003.42 to make several additional 

technical and substantive amendments 

regarding fear interviews, 

determinations, and reviews of 

determinations. The Departments 

amend 8 CFR 208.30(a) and 8 CFR 

1208.30(a) to clearly state that the 

respective sections describe the 

exclusive procedures applicable to 

applicants for admission who are found 

inadmissible pursuant to section 

212(a)(6)(C) or 212(a)(7) of the Act, 8 

U.S.C. 1182(a)(6)(C) or 1182(a)(7), and 

receive ‘‘credible fear’’ interviews, 

determinations, and reviews under 

section 235(b)(1)(B) of the Act, 8 U.S.C. 

1225(b)(1)(B). 

DHS is clarifying the existing 

‘‘credible fear’’ screening process in 8 

CFR 208.30(b), which states that if an 

alien subject to expedited removal 

indicates an intention to apply for 

asylum or expresses a fear of 

persecution or torture, or a fear of 

return, an inspecting officer shall not 

proceed further with removal until the 

alien has been referred for an interview 

with an asylum officer, as provided in 

section 235(b)(1)(A)(ii) of the Act, 8 

U.S.C. 1225(b)(1)(A)(ii). The rule also 

states that the asylum officer would 

screen the alien for a credible fear of 

persecution and, as appropriate, a 

reasonable possibility of persecution 

and a reasonable possibility of torture, 

and conduct an evaluation and 

determination in accordance with 8 CFR 

208.9(c), which is consistent with 

current policy and practice. These 

proposals aim to provide greater 

transparency and clarity with regard to 

fear screenings. 

DHS is also including consideration 

of internal relocation in the context of 

8 CFR 208.30(e)(1)–(3), which outline 

the procedures for determining whether 

aliens have a credible fear of 

persecution, a reasonable possibility of 

persecution, and a reasonable 

possibility of torture. Considering 

internal relocation in the ‘‘credible fear’’ 

screening context is consistent with 

existing policy and practice, and the 

regulations addressing internal 

relocation at 8 CFR 208.16(c)(3)(ii) and 

8 CFR 1208.16(c)(3)(ii) (protection 

under the CAT regulations); 8 CFR 

208.13(b)(1)(i)(B) and 8 CFR 

1208.13(b)(1)(i)(B) (asylum); and 8 CFR 

208.16(b)(1)(i)(B) and 8 CFR 

1208.16(b)(1)(i)(B) (statutory 

withholding). The regulatory standard 

that governs consideration of internal 

relocation in the context of asylum and 

statutory withholding of removal 

adjudications is different from the 

standard that considers internal 

relocation in the context of protection 

under the CAT regulations. See 

generally Maldonado v. Lynch, 786 F.3d 

1155, 1163 (9th Cir. 2015) (noting the 

marked difference between the asylum 

and CAT regulations concerning 

internal relocation). 

In addition, the Departments are 

adding asylum and statutory 

withholding eligibility bar 

considerations in 8 CFR 208.30(e)(1)(iii) 

and (e)(2)(iii), and 8 CFR 1003.42(d). 

Currently, 8 CFR 208.30(e)(5)(i) 

provides that if an alien, other than a 

stowaway, is able to establish a credible 

fear of persecution or torture but also 

appears to be subject to one or more of 

the mandatory eligibility bars to asylum 

or statutory withholding of removal, 

then the alien will be placed in section 

240 proceedings. The Departments are 

amending 8 CFR 208.30 to apply 

mandatory bars to applying for or being 

granted asylum at the credible fear 

screening stage for aliens in expedited 

removal proceedings and for stowaways, 

such that if a mandatory bar to applying 

for or being granted asylum applies, the 

alien would be unable to show a 

significant possibility of establishing 

eligibility for asylum. In 8 CFR 

208.30(e)(5), DHS requires asylum 

officers to determine (1) whether an 

alien is subject to one or more of the 

mandatory bars to being able to apply 

for asylum under section 208(a)(2)(B)– 

(D) of the Act, 8 U.S.C. 1158(a)(2)(B)– 

(D), or the bars to asylum eligibility 

under section 208(b)(2) of the Act, 8 

U.S.C. 1158(b)(2), including any 

eligibility bars established by regulation 

under section 208(b)(2)(C) of the Act, 8 

U.S.C. 1158(b)(2)(C); and (2) if so, 

whether the bar at issue is also a bar to 

statutory withholding of removal and 

withholding of removal under the CAT 

regulations. If a mandatory bar to 

asylum applies, the alien will then be 

screened only for statutory withholding 

of removal or withholding or deferral of 

removal under the CAT regulations. If 

the alien is subject to a mandatory bar 

to asylum that is also a mandatory bar 

to statutory withholding of removal, 

then the alien will be screened only for 

deferral of removal under the CAT 

regulations. An alien who could 

establish a credible fear of persecution 

or reasonable possibility of persecution 

but for the fact that he or she is subject 

to one of the bars that applies to both 

asylum and statutory withholding of 

removal would receive a negative fear 

determination, unless the alien could 

establish a reasonable possibility of 

torture, in which case he or she would 

be referred to the immigration court for 

asylum-and-withholding-only 

proceedings. In those proceedings, the 

alien would have the opportunity to 

raise whether he or she was correctly 

identified as being subject to the bar(s) 

to asylum and withholding of removal 

and also pursue protection under the 

CAT regulations. 

Additionally, under 8 CFR 

208.30(e)(5), DHS has used a 

‘‘reasonable fear’’ standard (identical to 

the ‘‘reasonable possibility’’ standard 

enunciated in this rule) in procedures 

related to aliens barred from asylum 

under two interim final rules issued by 

the Departments,5 as described in 8 CFR 


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amendments that would implement the rules at 

issue in the aforementioned cases. 

208.13(c)(3)–(4). The Departments 

include technical edits in 8 CFR 

208.30(e)(5), to change ‘‘reasonable fear’’ 

to ‘‘reasonable possibility’’ to align the 

terminology with the other proposed 

changes in this rule. Similarly, DOJ 

makes technical edits in 8 CFR 

1208.30(g)(1) and 8 CFR 1003.42(d)— 

both of which refer to the ‘‘reasonable 

fear’’ standard in the current version of 

8 CFR 208.30(e)(5)—to change the 

‘‘reasonable fear’’ language to 

‘‘reasonable possibility.’’ These edits are 

purely technical and would not amend, 

alter, or impact the standard of proof 

applicable to the fear screening process 

and determinations, or review of such 

determinations, associated with the 

aforementioned bars. 

Additionally, in 8 CFR 208.2(c)(1), 8 

CFR 1208.2(c)(1), 8 CFR 235.6(a)(2), and 

8 CFR 1235.6(a)(2), the Departments 

include technical edits to replace the 

term ‘‘credible fear of persecution or 

torture’’ with ‘‘a credible fear of 

persecution, reasonable possibility of 

persecution, or reasonable possibility of 

torture’’ to mirror the terminology used 

in proposed 8 CFR 208.30 and 8 CFR 

1208.30. Moreover, in 8 CFR 

1208.30(g)(2)(iv)(C), DOJ makes a 

technical edit to clarify that stowaways 

barred from asylum and both statutory 

and CAT withholding of removal may 

still be eligible for deferral of removal 

under the CAT regulations. 

The Departments further amend 8 

CFR 208.30(g) and 8 CFR 1208.30(g)(2), 

which address procedures for negative 

fear determinations for aliens in the 

expedited removal process. In 8 CFR 

208.30(g)(1), the Departments treat an 

alien’s refusal to indicate whether he or 

she desires review by an immigration 

judge as declining to request such 

review. Also, in 8 CFR 208.31, the 

Departments treat a refusal as declining 

to request review within the context of 

reasonable fear determinations. 

In comparison to the NPRM, this final 

rule adds the word ‘‘for’’ to correct the 

form name to ‘‘Application for Asylum 

and for Withholding of Removal’’ at 8 

CFR 208.31(g)(2) and 1208.31(g)(2). This 

final rule also reinserts language 

concerning novel or unique issues in 8 

CFR 208.30(e)(4) that was inadvertently 

proposed to be removed in the NPRM, 

with modifications to account for 

changes in terminology adopted via this 

final rule. The language now reads: ‘‘In 

determining whether the alien has a 

credible fear of persecution, as defined 

in section 235(b)(1)(B)(v) of the Act, or 

a reasonable possibility of persecution 

or torture, the asylum officer shall 

consider whether the alien’s case 

presents novel or unique issues that 

merit consideration in a full hearing 

before an immigration judge.’’ Also, this 

final rule removes one sentence from 

the proposed 8 CFR 208.30(e)(4)—‘‘An 

asylum officer’s determination will not 

become final until reviewed by a 

supervisory asylum officer’’—because 

similar text already exists in 8 CFR 

208.30(e)(8) and it would be repetitive 

to include it in 8 CFR 208.30(e)(4). 

2. Amendments Related to the Filing 

Requirements and Elements for 

Consideration of Form I–589, 

Application for Asylum and for 

Withholding of Removal 

2.1. Frivolous Applications 

The Departments amend both 8 CFR 

208.20 and 1208.20 regarding 

determinations that an asylum 

application is frivolous. See INA 

208(d)(6), 8 U.S.C. 1158(d)(6) (providing 

that an alien found to have ‘‘knowingly 

made a frivolous application for 

asylum’’ is ‘‘permanently ineligible for 

any benefits’’ under the Act). The 

Departments propose the new standards 

in order to ensure that manifestly 

unfounded or otherwise abusive claims 

are rooted out and to ensure that 

meritorious claims are adjudicated more 

efficiently so that deserving applicants 

receive benefits in a timely fashion. 

The Departments clarify the meaning 

of ‘‘knowingly’’ by providing that 

‘‘knowingly’’ requires either actual 

knowledge of the frivolousness or 

willful blindness toward it. 8 CFR 

208.20(a)(2), 1208.20(a)(2). The 

Departments also amend the definition 

of ‘‘frivolous.’’ 8 CFR 208.20, 

208.20(c)(1)–(4), 1208.20, 1208.20(c)(1)– 

(4). Under the new definition, if 

knowingly made, an asylum application 

would be properly considered frivolous 

if the adjudicator were to determine that 

it included a fabricated material 

element; that it was premised on false 

or fabricated evidence; that it was filed 

without regard to the merits of the 

claim; or that it was clearly foreclosed 

by applicable law. The definition aligns 

with the Departments’ prior 

understandings of frivolous 

applications, including applications that 

are clearly unfounded, abusive, or 

involve fraud, and the Departments 

believe the definition would better 

effectuate the intent of section 208(d)(6) 

of the Act, 8 U.S.C. 1158(d)(6), to 

discourage applications that make 

patently meritless or false claims. 

In addition, the Departments allow 

asylum officers adjudicating affirmative 

asylum applications to make findings 

that aliens have knowingly filed 

frivolous asylum applications and to 

refer the cases on that basis to 

immigration judges (for aliens not in 

lawful status) or to deny the 

applications (for aliens in lawful status). 

8 CFR 208.20(b), 1208.20(b). For an 

alien not in lawful status, a finding by 

an asylum officer that an asylum 

application is frivolous would not 

render an alien permanently ineligible 

for immigration benefits unless an 

immigration judge or the BIA 

subsequently makes a finding of 

frivolousness upon de novo review of 

the application. Asylum officers would 

apply the same definition used by 

immigration judges and the BIA under 

this rule. Id. This change would allow 

U.S. Citizenship and Immigration 

Services (‘‘USCIS’’) to more efficiently 

root out frivolous applications, deter 

frivolous filings, and reduce the number 

of frivolous applications in the asylum 

system. Additionally, an asylum officer 

who makes a finding of frivolousness 

would produce a record on that issue for 

an immigration judge to review. Further, 

the proposed change is consistent with 

congressional intent to ‘‘reduce the 

likelihood that fraudulent or frivolous 

applications will enable deportable or 

excludable aliens to remain in the U.S. 

for substantial periods.’’ S. Rep. No. 

104–249, at 2 (1996). 

The Departments clarify that, as long 

as the alien has been given the notice of 

the consequences of filing a frivolous 

application, as required by section 

208(d)(4)(A) of the Act, 8 U.S.C. 

1158(d)(4)(A), the adjudicator need not 

give the alien any additional or further 

opportunity to account for any issues 

prior to the entry of a frivolousness 

finding. 8 CFR 208.20(d), 1208.20(d). 

The Departments have determined that 

this provision is sufficient to comply 

with the Act’s requirements, and that 

there is no legal or operational 

justification for providing additional 

opportunities to address aspects of a 

claim that may warrant a frivolousness 

finding. The Departments believe the 

current regulatory framework, which 

provides that an EOIR adjudicator may 

only make a frivolous finding if he or 

she ‘‘is satisfied that the applicant, 

during the course of the proceedings, 

has had sufficient opportunity to 

account for any discrepancies or 

implausible aspects of the claim,’’ has 

not successfully achieved the 

Departments’ goal of preventing 

knowingly frivolous applications that 

delay the adjudication of other asylum 

applications that may merit relief. 

As this rule would overrule Matter of 

Y–L–, 24 I&N Dec. 151 (BIA 2007), and 

revise the definition of ‘‘frivolous,’’ 

adjudicators would not be required to 


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provide opportunities for applicants to 

address discrepancies or implausible 

aspects of their claims if an applicant 

had been provided the warning required 

by INA 208(d)(4)(A) (8 U.S.C. 

1158(d)(4)(A)). 

In order to ameliorate the 

consequences of knowingly filing a 

frivolous application in appropriate 

cases, however, the Departments 

include a mechanism that would allow 

certain aliens in removal proceedings to 

withdraw, with prejudice, their 

applications by disclaiming the 

applications; accepting an order of 

voluntary departure for a period of no 

more than 30 days; withdrawing, also 

with prejudice, all other applications for 

relief or protection; and waiving any 

rights to file an appeal, motion to 

reopen, and motion to reconsider. 8 CFR 

208.20(f), 1208.20(f). In such instances, 

the aliens would not be subject to a 

frivolousness finding and could avoid 

the penalties associated with such a 

finding. In addition, the regulation does 

not change current regulatory language 

that makes clear that a frivolousness 

finding does not bar an alien from 

seeking statutory withholding of 

removal or protection under the CAT 

regulations. Finally, the Departments 

clarify that an application may be found 

frivolous even if the application was 

untimely. 8 CFR 208.20(e), 1208.20(e). 

In comparison to the NPRM, this final 

rule updates the frivolousness language 

in 8 CFR 208.20 and 8 CFR 1208.20 to 

further clarify that the new 

frivolousness standards only apply 

prospectively to applications filed on or 

after the effective date of this final rule. 

This final rule also replaces the word 

‘‘essential’’ with the word ‘‘material’’ in 

8 CFR 208.20(c)(1) and 1208.20(c)(1), 

consistent with the stated intent of the 

NPRM. Finally, to avoid confusion and 

potential conflict between the proposed 

language of 8 CFR 208.20(b) and 

1208.20(b) and 8 CFR 208.20(d) and 

1208.20(d), this final rule deletes the 

following sentence from proposed 8 

CFR 208.20(b) and 1208.20(b): ‘‘Such 

finding will only be made if the asylum 

officer is satisfied that the applicant has 

had sufficient opportunity to account 

for any discrepancies or implausible 

aspects of the claim.’’ 

2.2. Pretermission of Applications 

DOJ adds a new paragraph (e) to 8 

CFR 1208.13 to clarify that immigration 

judges may pretermit and deny an 

application for asylum, statutory 

withholding of removal, or protection 

under the CAT regulations if the alien 

has not established a prima facie claim 

for relief or protection under the 

applicable laws and regulations. See 

Matter of E–F–H–L–, 27 I&N Dec. 226 

(A.G. 2018); see also Matter of A–B–, 27 

I&N Dec. 316, 340 (A.G. 2018) (‘‘Of 

course, if an alien’s asylum application 

is fatally flawed in one respect—for 

example, for failure to show 

membership in a proposed social group 

* * *—an immigration judge or the 

Board need not examine the remaining 

elements of the asylum claim.’’). Other 

immigration applications are subject to 

pretermission when legally insufficient, 

and the INA and current regulations do 

not require asylum to be treated any 

differently. Such a decision would be 

based on the Form I–589 application 

itself and any supporting evidence. 

Under this rule, an immigration judge 

may pretermit an asylum application in 

two circumstances: (1) Following an 

oral or written motion by DHS, and (2) 

sua sponte upon the immigration 

judge’s own authority. Provided the 

alien has had an opportunity to 

respond, and the immigration judge 

considers any such response, a hearing 

would not be required for the 

immigration judge to make a decision to 

pretermit and deny the application. In 

the case of the immigration judge’s 

exercise of his or her own authority, 

parties would have at least ten days’ 

notice before the immigration judge 

would enter such an order. A similar 

timeframe would apply if DHS moves to 

pretermit, under current practice. See 

EOIR, Immigration Court Practice 

Manual at D–1 (Aug. 2, 2018), https:// 

www.justice.gov/eoir/page/file/1084851/ 

download. 

2.3. Particular Social Group 

The Departments adopt amendments 

to codify long-standing standards from 

case law regarding the cognizability of 

particular social groups and to provide 

clarity, allow for uniform application, 

and reduce the time necessary to 

evaluate claims involving particular 

social groups. These requirements 

would aid efficient litigation and avoid 

gamesmanship and piecemeal litigation. 

Specifically, the Departments codify 

the requirements that (1) a particular 

social group must be (a) composed of 

members who share a common 

immutable characteristic, (b) defined 

with particularity, and (c) socially 

distinct in the society in question; (2) 

the group must exist independently of 

the alleged persecutory acts; and (3) the 

group must not be defined exclusively 

by the alleged harm. 8 CFR 208.1(c), 

1208.1(c). Additionally, the 

Departments list nine, non-exhaustive 

circumstances that, if a particular social 

group consisted of or was defined by, 

would not generally result in a favorable 

adjudication. Id. Further, the 

Departments adopt several procedural 

requirements regarding the alien’s 

responsibility to define the particular 

social group. Id. 

In comparison to the NPRM, this final 

rule amends the waiver provision in 8 

CFR 208.1(c) and 1208.1(c) related to 

claims of ineffective assistance of 

counsel based on a failure to define, or 

provide a basis for defining, a 

formulation of a particular social group 

before an immigration judge to provide 

an exception for egregious conduct on 

the part of counsel. The Departments 

believe that cognizable ineffective 

assistance of counsel claims in the 

context of failing to assert a particular 

social group should be extremely rare. 

Nevertheless, the Departments recognize 

there may be unique situations in which 

‘‘egregious conduct’’ on the part of 

counsel may warrant reopening in this 

context, provided that appropriate 

procedural requirements for such a 

claim are observed. 

2.4. Political Opinion 

The Departments adopt amendments 

to define ‘‘political opinion’’ and 

provide other guidance for adjudicators 

regarding applications for asylum or 

statutory withholding of removal 

premised on the applicant’s political 

opinion. These amendments would 

provide additional clarity for 

adjudicators and better align the 

regulations with statutory requirements 

and general understanding that a 

political opinion is intended to advance 

or further a discrete cause related to 

political control of the state. 

Specifically, the Departments define 

‘‘political opinion’’ for the purposes of 

applications for asylum or for statutory 

withholding of removal as an opinion 

expressed by or imputed to an applicant 

in which the applicant possesses an 

ideal or conviction in support of the 

furtherance of a discrete cause related to 

political control of a state or a unit 

thereof. 8 CFR 208.1(d), 1208.1(d). 

Additionally, the Departments adopt a 

list of potential definitional bases for a 

political opinion that would not, in 

general, support a favorable 

adjudication: A political opinion 

defined solely by generalized 

disapproval of, disagreement with, or 

opposition to criminal, terrorist, gang, 

guerilla, or other non-state organizations 

absent expressive behavior in 

furtherance of a cause against such 

organizations related to efforts by the 

state to control such organizations or 

behavior that is antithetical to or 

otherwise opposes the ruling legal entity 

of the state or a legal sub-unit of the 

state. Id. Finally, consistent with section 

101(a)(42) of the Act, 8 U.S.C. 


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1101(a)(42), the Departments provide 

that a person who has been forced to 

abort a pregnancy or to undergo 

involuntary sterilization, or who has 

been persecuted for failure or refusal to 

undergo such a procedure or for other 

resistance to a coercive population 

control program, would be deemed to 

have been persecuted on account of 

political opinion, and a person who has 

a well-founded fear that he or she will 

be forced to undergo such a procedure 

or be subject to persecution for such 

failure, refusal, or resistance would be 

deemed to have a well-founded fear of 

persecution on account of political 

opinion. Id. 

2.5. Persecution Definition 

Given the wide range of cases 

interpreting ‘‘persecution’’ for the 

purposes of the asylum laws, the 

Departments are adding a new 

paragraph to 8 CFR 208.1 and 1208.1 to 

define ‘‘persecution’’ and to better 

clarify what does and does not 

constitute persecution given the extreme 

and severe nature of harm required. The 

Departments believe that these changes 

would better align the relevant 

regulations with the high standard 

Congress intended for the term 

‘‘persecution.’’ See Fatin v. INS, 12 F.3d 

1233, 1240 n.10, 1243 (3d Cir. 1993). 

Specifically, this rule provides that 

persecution requires ‘‘an intent to target 

a belief or characteristic, a severe level 

of harm, and the infliction of a severe 

level of harm by the government of a 

country or by persons or an organization 

that the government was unable or 

unwilling to control.’’ 8 CFR 208.1(e), 

1208.1(e). The Departments further 

clarify that persecution does not 

include, for example: (1) Every instance 

of harm that arises generally out of civil, 

criminal, or military strife in a country; 

(2) any and all treatment that the United 

States regards as unfair, offensive, 

unjust, or even unlawful or 

unconstitutional; (3) intermittent 

harassment, including brief detentions; 

(4) threats with no actions taken to carry 

out the threats; (5) non-severe economic 

harm or property damage; or (6) 

government laws or policies that are 

infrequently enforced, unless there is 

credible evidence that those laws or 

policies have been or likely would be 

applied to an applicant personally. See 

id. 

In comparison to the NPRM, this final 

rule amends the language in 8 CFR 

208.1(e) and 1208.1(e) regarding when 

threats alone may constitute persecution 

to clarify that particularized threats of 

severe harm of an immediate and 

menacing nature made by an identified 

entity may constitute persecution. The 

Departments expect that such cases will 

be rare. See, e.g., Duran-Rodriguez v. 

Barr, 918 F.3d at 1028 (explaining that 

‘‘death threats alone can constitute 

persecution’’ but ‘‘constitute 

persecution in only a small category of 

cases, and only when the threats are so 

menacing as to cause significant actual 

suffering or harm’’ (quotation marks and 

citation omitted)). 

2.6. Nexus 

The Departments add paragraph (f) to 

both 8 CFR 208.1 and 1208.1 to provide 

clearer guidance on situations in which 

alleged acts of persecution would not be 

on account of one of the five protected 

grounds. This proposal would further 

the expeditious consideration of asylum 

and statutory withholding claims by 

bringing clarity and uniformity to this 

issue. 

Specifically, the Departments are 

adopting the following eight nonexhaustive circumstances, each of 

which is rooted in case law, that would 

not generally support a favorable 

adjudication of an application for 

asylum or statutory withholding of 

removal due to the applicant’s inability 

to demonstrate persecution on account 

of a protected ground: (1) Interpersonal 

animus or retribution; (2) interpersonal 

animus in which 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 has raised 

the claim at issue; (3) generalized 

disapproval of, disagreement with, or 

opposition to criminal, terrorist, gang, 

guerilla, or other non-state organizations 

absent expressive behavior in 

furtherance of a discrete cause against 

such organizations related to control of 

a state or expressive behavior that is 

antithetical to the state or a legal unit of 

the state; (4) resistance to recruitment or 

coercion by guerilla, criminal, gang, 

terrorist, or other non-state 

organizations; (5) the targeting of the 

applicant for criminal activity for 

financial gain based on wealth or 

affluence or perceptions of wealth or 

affluence; (6) criminal activity; (7) 

perceived, past or present, gang 

affiliation; and (8) gender. 8 CFR 

208.1(f)(1)–(8), 1208.1(f)(1)–(8). At the 

same time, the regulation would not 

foreclose that, at least in rare cases, such 

circumstances could be the basis for 

finding nexus, given the fact-specific 

nature of this determination. 

2.7. Stereotype Evidence 

In order to make clear that pernicious 

cultural stereotypes have no place in the 

adjudication of applications for asylum 

and statutory withholding of removal, 

regardless of the basis of the claim, the 

Departments bar consideration of 

evidence promoting cultural stereotypes 

of countries or individuals, including 

stereotypes related to race, religion, 

nationality, and gender, to the extent 

those stereotypes are offered in support 

of an alien’s claim. 8 CFR 208.1(g), 

1208.1(g). 

In comparison to the NPRM, the final 

rule clarifies the language in 8 CFR 

208.1(g) and 1208.1(g) to alleviate 

apparent confusion and improve 

consistency with the intent of the NPRM 

regarding the use of stereotypes as an 

evidentiary basis for an asylum claim. In 

the final rule, bald statements that a 

country or its denizens have a particular 

cultural trait that causes citizens, 

nationals, or residents of that country to 

engage in persecution is evidence 

lacking in probative value and has no 

place in an adjudication. 

2.8. Internal Relocation 

The Departments are adopting 

amendments to 8 CFR 208.13(b)(3), 

208.16(b)(3), 1208.13(b)(3), and 

1208.16(b)(3) regarding the 

reasonableness of internal relocation 

because the Departments determined 

that the current regulations 

inadequately assess the relevant 

considerations in determining whether 

internal relocation is possible, and if 

possible, whether it is reasonable to 

expect the asylum applicant to relocate. 

The Departments adopt a more 

streamlined presentation in the 

regulations of the most relevant factors 

for adjudicators to consider in 

determining whether internal relocation 

is a reasonable option. This clarification 

would assist adjudicators in making 

more efficient adjudications and would 

bring the regulatory burdens of proof in 

line with baseline assessments of 

whether types of persecution generally 

occur nationwide. 

Specifically, the Departments amend 

the general guidelines regarding 

determinations of the reasonableness of 

internal relocation to specify that 

adjudicators should consider the totality 

of the circumstances. 8 CFR 

208.13(b)(3), 1208.13(b)(3). In addition, 

the Departments amend the list of 

considerations for adjudicators 

including, inter alia, an instruction that 

adjudicators consider ‘‘the applicant’s 

demonstrated ability to relocate to the 

United States in order to apply for 

asylum.’’ Id. The Departments also 

adopt a presumption that for 

applications in which the persecutor is 

not a government or governmentsponsored actor, internal relocation 

would be reasonable unless the 

applicant demonstrates by a 


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6Because the issue of internal relocation arises in 

the context of applications for both asylum and 

statutory withholding of removal, the Departments 

are amending the relevant regulations related to 

applications for statutory withholding of removal 

for the same reasons discussed herein they are 

amending the regulations related to asylum 

applications. See 8 CFR 208.16(b)(3) and 

1208.16(b)(3). 

7The Departments, however, provided exceptions 

for aliens who demonstrate that (1) they applied for 

and were denied protection in such country, (2) 

they are a trafficking victim as set out as 8 CFR 

214.11, or (3) such country was at the time the alien 

transited not a party to the 1951 Convention 

relating to the Status of Refugees, the 1967 Protocol 

relating to the Status of Refugees, or the Convention 

against Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment. 8 CFR 

208.13(d)(2)(i)(A)(1)–(3), 1208.13(d)(2)(i)(A)(1)–(3). 

8The Departments, however, provided the same 

exceptions described above. See 8 CFR 

208.13(d)(2)(i)(B)(1)–(3), 1208.13(d)(2)(i)(B)(1)–(3). 

9The Departments included exceptions if the 

alien shows by the preponderance of the evidence 

that either exceptional circumstances prevented the 

alien from attending the interview or that the 

interview notice was not mailed to the last address 

provided by the alien or the alien’s representative 

and neither the alien nor the alien’s representative 

received notice of the interview. 8 CFR 

208.13(d)(2)(i)(H)(1)–(2), 1208.13(d)(2)(i)(H)(1)–(2). 

10As the Departments noted in the proposed rule, 

85 FR at 36286 n.41, 43 countries have signed the 

Refugee Convention since 1990. In particular, 

resettlement opportunities in Mexico, one of the 

most common transit countries for aliens coming to 

the United States, have increased significantly in 

recent years. For example, the UNHCR has 

documented a notable increase in asylum and 

refugee claims filed in Mexico—even during the 

ongoing COVID–19 pandemic—which strongly 

preponderance of the evidence that it 

would not be. 8 CFR 208.13(b)(3)(iii), 

1208.13(b)(3)(iii). This presumption 

would apply regardless of whether an 

applicant has established past 

persecution. For ease of administering 

these provisions, the Departments also 

provide examples of the types of 

individuals or entities who are private 

actors. 8 CFR 208.13(b)(3)(iv), 

1208.13(b)(3)(iv).6

2.9. Discretionary Factors 

Asylum is a discretionary form of 

relief, and the Departments provide 

general guidelines on factors for 

adjudicators to consider when 

determining whether or not an alien 

merits the relief of asylum as a matter 

of discretion. 8 CFR 208.13(d), 

1208.13(d). Specifically, the 

Departments provide three factors that 

adjudicators must consider when 

determining whether an applicant 

merits the relief of asylum as a matter 

of discretion: (1) An alien’s unlawful 

entry or unlawful attempted entry into 

the United States unless such entry or 

attempted entry was made in immediate 

flight from persecution or torture in a 

contiguous country; (2) subject to 

certain exceptions, the failure of an 

alien to seek asylum or refugee 

protection in at least one country 

through which the alien transited before 

entering the United States; and (3) an 

alien’s use of fraudulent documents to 

enter the United States, unless the alien 

arrived in the United States by air, sea, 

or land directly from the applicant’s 

home country without transiting 

through any other country. 8 CFR 

208.13(d)(1), 1208.13(d)(1). The 

adjudicator must consider all three 

factors, if relevant, during every asylum 

adjudication. If one or more of these 

factors were found to apply to the 

applicant’s case, the adjudicator would 

consider such factors to be significantly 

adverse for purposes of the 

discretionary determination, though the 

adjudicator should also consider any 

other relevant facts and circumstances 

to determine whether the applicant 

merits asylum as a matter of discretion. 

In addition, the Departments provide 

nine additional adverse factors that, if 

applicable, would ordinarily result in 

the denial of asylum as a matter of 

discretion. 8 CFR 208.13(d)(2)(i), 

1208.13(d)(2)(i). Specifically, the 

Departments list the following factors 

for the adjudicator to consider: (1) 

Whether an alien has spent more than 

14 days in any one country that 

permitted application for refugee, 

asylee, or similar protections prior to 

entering or arriving in the United States, 

8 CFR 208.13(d)(2)(i)(A), 

1208.13(d)(2)(i)(A); 7 (2) whether the 

alien transited through more than one 

country prior to arrival in the United 

States, 8 CFR 208.13(d)(2)(i)(B), 

1208.13(d)(2)(i)(B); 8 (3) whether the 

applicant would be subject to a 

mandatory asylum application denial 

under 8 CFR 208.13(c), 1208.13(c) but 

for the reversal, vacatur, expungement, 

or modification of a conviction or 

sentence unless the alien was found not 

guilty, 8 CFR 208.13(d)(2)(i)(C) 

1208.13(d)(2)(i)(C); (4) whether the 

applicant has accrued more than one 

year of unlawful presence in the United 

States prior to filing an application for 

asylum, 8 CFR 208.13(d)(2)(i)(D), 

1208.13(d)(2)(i)(D); (5) whether the 

applicant, at the time he or she filed the 

asylum application, had failed to timely 

file or to timely file an extension request 

of any required Federal, state, or local 

tax returns; failed to satisfy any 

outstanding Federal, state, or local tax 

obligations; or has income that would 

generate tax liability but that has not 

been reported to the Internal Revenue 

Service, 8 CFR 208.13(d)(2)(i)(E), 

1208.13(d)(2)(i)(E); (6) whether the 

applicant has had two or more prior 

asylum applications denied for any 

reason, 8 CFR 208.13(d)(2)(i)(F), 

1208.13(d)(2)(i)(F); (7) whether the 

applicant has previously withdrawn an 

asylum application with prejudice or 

been found to have abandoned an 

asylum application, 8 CFR 

208.13(d)(2)(i)(G), 1208.13(d)(2)(i)(G); 

(8) whether the applicant previously 

failed to attend an interview with DHS 

regarding his or her application, 8 CFR 

208.13(d)(2)(i)(H), 1208.13(d)(2)(i)(H); 9

and (9) whether the applicant was 

subject to a final order of removal, 

deportation, or exclusion and did not 

file a motion to reopen within one year 

of the change in country conditions, 8 

CFR 208.13(d)(2)(i)(I), 

1208.13(d)(2)(i)(I); see also INA 

240(c)(7)(C)(ii), 8 U.S.C. 

1229a(c)(7)(C)(ii); 8 CFR 1003.2(c)(3)(ii), 

1003.23(b)(4)(i). 

This rule provides that if the 

adjudicator were to determine that any 

of these nine circumstances applied 

during the course of the discretionary 

review, the adjudicator may 

nevertheless favorably exercise 

discretion in extraordinary 

circumstances, such as those involving 

national security or foreign policy 

considerations, or if the alien 

demonstrates, by clear and convincing 

evidence, that the denial or referral of 

asylum would result in an exceptional 

and extremely unusual hardship to the 

alien. 8 CFR 208.13(d)(2)(ii), 

1208.13(d)(2)(ii). 

In comparison to the NPRM, this final 

rule adds the clarifying phrase ‘‘as 

defined in section 212(a)(9)(B)(ii) and 

(iii) of the Act’’ to 8 CFR 

208.13(d)(2)(i)(D) and 

1208.13(d)(2)(i)(D) consistent with the 

intent of the NPRM. In addition, this 

final rule amends 8 CFR 208.13(d)(1)(i) 

and 1208.13(d)(1)(i) to reflect that an 

unlawful or attempted unlawful entry 

into the United States by an alien under 

the age of 18 will not be considered as 

a significant adverse discretionary factor 

in considering a subsequent asylum 

application filed by such an alien. 

Further, the final rule amends 8 CFR 

208.13(d)(2)(ii) to reflect that, 

operationally, DHS may refer or deny an 

asylum application, depending on the 

circumstances of the applicant. See 8 

CFR 208.14. 

2.10. Firm Resettlement 

Due to the increased availability of 

resettlement opportunities and the 

interest of those genuinely in fear of 

persecution in attaining safety as soon 

as possible, the Departments revise the 

definition of firm resettlement that 

applies to asylum adjudications at 8 

CFR 208.15 and 1208.15.10 These 


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suggests that Mexico is an appropriate option for 

seeking refuge for those genuinely fleeing 

persecution. See, e.g., Shabia Mantoo, Despite 

pandemic restrictions, people fleeing violence and 

persecution continue to seek asylum in Mexico, 

U.N. High Commissioner for Refugees (Apr. 28, 

2020), https://www.unhcr.org/en-us/news/briefing/ 

2020/4/5ea7dc144/despite-pandemic-restrictionspeople-fleeing-violence-persecution-continue.html 

(‘‘While a number of countries throughout Latin 

America and the rest of the world have closed their 

borders and restricted movement to contain the 

spread of coronavirus, Mexico has continued to 

register new asylum claims from people fleeing 

brutal violence and persecution, helping them find 

safety.’’). Asylum and refugee claims filed in 

Mexico increased 33 percent in the first three 

months of 2020 compared to the same period in 

2019, averaging almost 6000 per month. Id. Asylum 

claims filed in Mexico rose by more than 103 

percent in 2018 compared to the previous year. 

U.N. High Commissioner for Refugees, Fact Sheet 

(Apr. 2019), https://reporting.unhcr.org/sites/ 

default/files/UNHCR%20Factsheet%20Mexico%20- 

%20April%202019.pdf. Overall, ‘‘[a]sylum requests 

have doubled in Mexico each year since 2015.’’ 

Congressional Research Serv., Mexico’s Immigration 

Control Efforts (Feb. 19, 2020), https://fas.org/sgp/ 

crs/row/IF10215.pdf. Moreover, some private 

organizations acknowledge that asylum claims in 

Mexico have recently ‘‘skyrocket[ed],’’ that ‘‘Mexico 

has adopted a broader refugee definition than the 

U.S. and grants a higher percentage of asylum 

applications,’’ and that ‘‘Mexico may offer better 

options for certain refugees who cannot find 

international protection in the U.S.,’’ including for 

those ‘‘who are deciding where to seek asylum [i.e. 

between Mexico and the United States].’’ Asylum 

Access, Mexican Asylum System for U.S. 

Immigration Lawyers FAQ (Nov. 2019), https:// 

asylumaccess.org/wp-content/uploads/2019/11/ 

Mexican-Asylum-FAQ-for-US-ImmigrationLawyers.pdf. Moreover, the Mexican Constitution 

was amended in 2011 to include the specific right 

to asylum and further amended in 2016 to expand 

that right. See Mex. Const. Art. 11 (‘‘Every person 

has the right to seek and receive asylum. 

Recognition of refugee status and the granting of 

political asylum will be carried out in accordance 

with international treaties. The law will regulate 

their origins and exceptions.’’). In fact, the grounds 

for seeking and obtaining refugee status under 

Mexican law are broader than the grounds under 

U.S. law. As in the United States, individuals in 

Mexico may seek refugee status as a result of 

persecution in their home countries on the basis of 

race, religion, nationality, gender, membership in a 

social group, or political opinion. Compare 2011 

Law for Refugees, Complementary Protection, and 

Political Asylum (‘‘LRCPPA’’), Art. 13(I), with INA 

208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i). However, 

individuals in Mexico may also seek refugee status 

based on ‘‘generalized violence’’ and ‘‘massive 

violation of human rights.’’ See 2011 LRCPPA, Art. 

13(II). In short, resettlement opportunities are 

unquestionably greater now than when the 

regulatory definition of ‘‘firm resettlement’’ was 

first implemented, and those changes warrant 

revisions to that definition accordingly. 

changes recognize the increased 

availability of resettlement 

opportunities and that an alien fleeing 

persecution would ordinarily be 

expected to seek refuge at the first 

available opportunity where there is no 

fear of persecution or torture. Further, 

the changes would ensure that the 

asylum system is used by those in need 

of immediate protection rather than 

those who chose the United States as 

their destination for other reasons and 

then relied on the asylum system to 

reach that destination. 

Specifically, the Departments identify 

three circumstances under which an 

alien would be considered firmly 

resettled: (1) The alien resided in a 

country through which the alien 

transited prior to arriving in or entering 

the United States and (i) received or was 

eligible for any permanent legal 

immigration status in that country, (ii) 

resided in such a country with any nonpermanent but indefinitely renewable 

legal immigration status (including 

asylee, refugee, or similar status but 

excluding status such as of a tourist), or 

(iii) resided in such a country and could 

have applied for and obtained any nonpermanent but indefinitely renewable 

legal immigration status in that country; 

(2) the alien physically resided 

voluntarily, and without continuing to 

suffer persecution, in any one country 

for one year or more after departing his 

country of nationality or last habitual 

residence and prior to arrival in or entry 

into the United States; or (3) (i) the alien 

is a citizen of a country other than the 

one where the alien alleges a fear of 

persecution and the alien was present in 

that country prior to arriving in the 

United States, or (ii) the alien was a 

citizen of a country other than the one 

where the alien alleges a fear of 

persecution, the alien was present in 

that country prior to arriving in the 

United States, and the alien renounced 

that citizenship prior to or after arriving 

in the United States. 8 CFR 

208.15(a)(1)–(3), 1208.15(a)(1)–(3). 

The Departments further provide that 

the issue of whether the firm 

resettlement bar applies arises ‘‘when 

the evidence of record indicates that the 

firm resettlement bar may apply,’’ and 

specifically allows both DHS and the 

immigration judge to first raise the issue 

based on the record evidence. 8 CFR 

208.15(b), 1208.15(b). Finally, the 

Departments specify that the firm 

resettlement of an alien’s parent(s) 

would be imputed to the alien if the 

resettlement was prior to the alien 

turning 18 and the alien resided with 

the parents at the time of the firm 

resettlement unless the alien could not 

have derived any legal immigration 

status or any nonpermanent legal 

immigration status that was potentially 

indefinitely renewable from the parent. 

Id. 

In comparison to the NPRM, this final 

rule analyzes the components of 8 CFR 

208.15(a)(1) and 1208.15(a)(1), breaks it 

into three subparagraphs, and changes 

the syntax, all for easier readability and 

to avoid confusion. The changes in the 

final rule are stylistic and do not reflect 

an intent to make a substantive change 

from the NPRM. This final rule also 

changes the temporal language in 8 CFR 

208.15(a)(3)(i) and (ii) and 

1208.15(a)(3)(i) and (ii) for clarity and 

consistency with similar language in 8 

CFR 208.15(a)(2) and 1208.15(a)(2). The 

changes clarify the relevant temporal 

scope to read ‘‘after departing his 

country of nationality or last habitual 

residence and prior to arrival in or entry 

into the United States’’ in lieu of the 

language in the NPRM. Finally, as 

discussed above, the rule corrects a 

related outdated statutory crossreference in 8 CFR 1244.4(b). 

2.11. ‘‘Public Officials’’ 

The Departments are revising 8 CFR 

208.18(a)(1), (7) and 1208.18(a)(1), (7) to 

provide further guidance for 

determining what sorts of officials 

constitute ‘‘public officials,’’ including 

whether an official such as a police 

officer is a public official for the 

purposes of the CAT regulations if he or 

she acts in violation of official policy or 

his or her official status. Specifically, in 

comparison to the NPRM, this final rule 

strikes the parenthetical phrase ‘‘(‘‘rogue 

official’’)’’ in 8 CFR 208.18(a)(1) and 

1208.18(a)(1). Relatedly, this final rule 

replaces the remaining uses of the 

phrase ‘‘rogue official’’ in 8 CFR 

208.16(b)(3)(iv), 208.18(a)(1), and 

1208.18(a)(1) with the definition, 

‘‘public official who is not acting under 

color of law.’’ As recently noted by the 

Attorney General in Matter of 

O–F–A–S–, 28 I&N Dec. 35, 38 (A.G. 

2020), ‘‘continued use of the ‘rogue 

official’ language by the immigration 

courts going forward risks confusion, 

not only because it suggests a different 

standard from the ‘under color of law’ 

standard, but also because ‘rogue 

official’ has been interpreted to have 

multiple meanings.’’ 

In addition, the Departments clarify 

(1) that pain or suffering inflicted by, or 

at the instigation of or with the consent 

or acquiescence of, a public official is 

not torture unless it is done while the 

official is acting in his or her official 

capacity (i.e., under ‘‘color of law’’) and 

(2) that pain or suffering inflicted by, or 

at the instigation of or with the consent 

or acquiescence of, a public official not 

acting under color of law does not 

constitute a ‘‘pain or suffering inflicted 

by or at the instigation of or with the 

consent or acquiescence of a public 

official or other person acting in an 

official capacity,’’ even if such actions 

cause pain and suffering that could rise 

to the severity of torture. See 8 CFR 

208.18(a)(1), 1208.18(a)(1). This 

amendment clarifies that the 

requirement that the individual be 

acting in an official capacity applies to 


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11For similar reasons, the NPRM cannot—and 

does not—alter the general availability of 

withholding of removal under the Act or protection 

under the CAT. 

both a ‘‘public official,’’ such as a police 

officer, and an ‘‘other person,’’ such as 

an individual deputized to act on the 

government’s behalf. Id. 

The Departments also clarify the 

definition of ‘‘acquiescence of a public 

official’’ so that, as several courts of 

appeals and the BIA have recognized, 

‘‘awareness’’—as used in the CAT 

‘‘acquiescence’’ definition—requires a 

finding of either actual knowledge or 

willful blindness. 8 CFR 208.18(a)(7), 

1208.18(a)(7). The Departments further 

clarify in this rule that, for purposes of 

the CAT regulations, ‘‘willful 

blindness’’ means that ‘‘the public 

official acting in an official capacity or 

other person acting in an official 

capacity was aware of a high probability 

of activity constituting torture and 

deliberately avoided learning the truth; 

it is not enough that such public official 

acting in an official capacity or other 

person acting in an official capacity was 

mistaken, recklessly disregarded the 

truth, or negligently failed to inquire.’’ 

Id. 

Additionally, the Departments clarify 

that acquiescence is not established by 

prior awareness of the activity alone, 

but requires an omission of an act that 

the official had a duty to do and was 

able to do. 8 CFR 208.18(a)(7), 

1208.18(a)(7). 

2.12. Information Disclosure 

The Departments are making changes 

to 8 CFR 208.6 and 8 CFR 1208.6 to 

clarify that information may be 

disclosed in certain circumstances that 

directly relate to the integrity of 

immigration proceedings, including 

situations in which there is suspected 

fraud or improper duplication of 

applications or claims. Specifically, the 

Departments provide that to the extent 

not already specifically permitted, and 

without the necessity of seeking the 

exercise of the Attorney General’s or 

Secretary’s discretion under sections 

1208.6(a) and 208.6(a), respectively, the 

Government may disclose all relevant 

and applicable information in or 

pertaining to the application for asylum, 

statutory withholding of removal, and 

protection under the CAT regulations as 

part of a Federal or state investigation, 

proceeding, or prosecution; as a defense 

to any legal action relating to the alien’s 

immigration or custody status; during 

an adjudication of the application itself 

or an adjudication of any other 

application or proceeding arising under 

the immigration laws; pursuant to any 

state or Federal mandatory reporting 

requirement; and to deter, prevent, or 

ameliorate the effects of child abuse. 8 

CFR 208.6(d)(1)(i)–(iv), 1208.6(d)(1)(i)– 

(vi). Finally, the Departments provide 

that nothing in 8 CFR 208.6 or 1208.6 

should be construed to prohibit the 

disclosure of information in or relating 

to an application for asylum, statutory 

withholding of removal, and protection 

under the CAT regulations among 

specified government employees or 

where a government employee or 

contractor has a ‘‘good faith and 

reasonable’’ belief that the disclosure is 

necessary to prevent the commission of 

a crime, the furtherance of an ongoing 

crime, or to ameliorate the effects of a 

crime. 8 CFR 208.6(e), 1208.6(e). 

The Departments are making 

conforming edits to 8 CFR 208.6(a) and 

(b) and 8 CFR 1208.6(b) to make clear 

that the disclosure provisions of 8 CFR 

208.6 and 1208.6 apply to applications 

for withholding of removal under the 

INA and for protection under the 

regulations implementing the CAT, and 

not solely to asylum applications. That 

point is already clear in 8 CFR 208.6(d) 

and 1208.6(d), and the Departments see 

no reason not to conform the other 

paragraphs in that section for 

consistency. 

2.13. Severability 

Given the numerous and varied 

changes proposed in the NPRM, the 

Departments are adding severability 

provisions in 8 CFR parts 208, 235, 

1003, 1208, 1212, and 1235. See 8 CFR 

208.25, 235.6(c), 1003.42(i), 1208.25, 

1212.13, 1235.6(c). Because the 

Departments believe that the provisions 

of each part would function sensibly 

independent of other provisions, the 

Departments make clear that the 

provisions are severable so that, if 

necessary, the regulations can continue 

to function without a stricken provision. 

3. Other 

In comparison to the NPRM, this final 

rule strikes the regulatory text changes 

proposed at 103.5 because those 

changes were inadvertently included in 

the NPRM’s proposed regulatory text. 

II. Public Comments on the Proposed 

Rule 

A. Summary of Public Comments 

The comment period for the NPRM 

closed on July 15, 2020, with more than 

87,000 comments received. 

Organizations, including nongovernment organizations, legal 

advocacy groups, non-profit 

organizations, religious organizations, 

unions, congressional committees, and 

groups of members of Congress, 

submitted 311 comments, and 

individual commenters submitted the 

rest. Most individual comments 

opposed the NPRM. 

Many if not most comments opposing 

the NPRM either misstate its contents, 

provide no evidence (other than isolated 

or distinguishable anecdotes) to support 

broad speculative effects, are contrary to 

facts or law, or lack an understanding of 

relevant immigration law and 

procedures. As the vast majority of 

comments in opposition fall within one 

of these categories, the Departments 

offer the following general responses to 

them, supplemented by more detailed, 

comment-specific responses in Section 

II.C of this preamble. 

Many comments oppose the NPRM 

because they misstate, in hyperbolic 

terms, that it ends or destroys the 

asylum system or eliminates the 

availability of humanitarian protection 

in the United States. The NPRM does 

nothing of the kind. The availability of 

asylum is established by statute, INA 

208, 8 U.S.C. 1158, and an NPRM 

cannot alter a statute.11 Rather, the 

NPRM, consistent with the statutory 

authority of the Secretary and the 

Attorney General, adds much-needed 

guidance on the many critical, yet 

undefined, statutory terms related to 

asylum applications. Such guidance not 

only improves the efficiency of the 

system as a whole, but allows 

adjudicators to focus resources more 

effectively on potentially meritorious 

claims rather than on meritless ones. In 

short, the NPRM enhances rather than 

degrades the asylum system. 

Many comments misstate that the 

NPRM creates a blanket rule denying 

asylum based on its addition of certain 

definitions—e.g., particular social 

group, political opinion, nexus, and 

persecution. Although the rule provides 

definitions for these terms and examples 

of situations that generally will not meet 

those definitions, the rule also makes 

clear that the examples are 

generalizations, and it does not 

categorically rule out types of claims 

based on those definitions. In short, the 

rule does not contain the blanket 

prohibitions that some commenters 

ascribe to it. 

Many comments assert that the NPRM 

targets certain nationalities, groups, or 

types of claims and is motivated by a 

nefarious or conspiratorial animus, 

particularly an alleged racial animus. 

The Departments categorically deny an 

improper motive in promulgating the 

NPRM. Rather, the animating principles 

of the NPRM were to provide clearer 

guidance to adjudicators regarding a 

number of thorny issues that have 


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12Asylum claims are unevenly distributed among 

the world’s countries. See EOIR, Asylum Decision 

Rates by Nationality (July 14, 2020), https:// 

www.justice.gov/eoir/page/file/1107366/download. 

Thus, to the extent that the NPRM affects certain 

groups of aliens more than others, those effects are 

a by-product of the inherent distribution of claims, 

rather than any alleged targeting by the 

Departments. See also DHS v. Regents of Univ. of 

Cal., 140 S.Ct. 1891, 1915–16 (2020) (impact of a 

policy on a population that is intrinsically skewed 

demographically does not established a plausible 

claim of racial animus, invidious discrimination, or 

an equal protection violation). 

created confusion and inconsistency; to 

improve the efficiency and integrity of 

the overall system; to correct procedures 

that were not working well, including 

the identification of meritless or 

fraudulent claims; and to reset the 

overall asylum adjudicatory framework 

in light of numerous—and often 

contradictory or confusing—decisions 

from the Board and circuit courts. The 

Departments’ positions are rooted in 

law, as explained in the NPRM. In short, 

the Departments have not targeted any 

particular groups or nationalities in the 

NPRM or in the provisions of this final 

rule.12 Rather, the Departments are 

appropriately using rulemaking to 

provide guidance in order to streamline 

determinations consistent with their 

statutory authorities. See Heckler v. 

Campbell, 461 U.S. 458, 467 (1983) 

(‘‘The Court has recognized that even 

where an agency’s enabling statute 

expressly requires it to hold a hearing, 

the agency may rely on its rulemaking 

authority to determine issues that do not 

require case-by-case consideration. . . . 

A contrary holding would require the 

agency continually to relitigate issues 

that may be established fairly and 

efficiently in a single rulemaking 

proceeding.’’) (citation omitted); see 

also Lopez v. Davis, 531 U.S. 230, 243– 

44 (2001) (‘‘[E]ven if a statutory scheme 

requires individualized determinations, 

which this scheme does not, the 

decisionmaker has the authority to rely 

on rulemaking to resolve certain issues 

of general applicability unless Congress 

clearly expresses an intent to withhold 

that authority. . . . The approach 

pressed by Lopez—case-by-case 

decision-making in thousands of cases 

each year—could invite favoritism, 

disunity, and inconsistency.’’) (citations 

and internal quotations omitted). 

Many, if not most, commenters 

asserted that the rule was ‘‘arbitrary and 

capricious,’’ though nearly all of those 

assertions were ultimately rooted in the 

fact that the rule did not adopt the 

commenters’ policy preferences rather 

than specific legal deficiencies. The 

Departments have considered all 

comments and looked at alternatives. 

The Departments understand that many, 

if not most, commenters opposing the 

rule believe that most asylum 

applications are meritorious and, thus, 

would prefer that more applications for 

asylum be granted; that border 

restrictions should be loosened; and that 

the Departments, as a matter of 

forbearance or discretion, should 

decline to enforce the law when doing 

so would be beneficial to aliens. For all 

of the reasons discussed in the NPRM, 

and reiterated herein, the Departments 

decline to adopt those positions. 

The Departments further understand 

that many if not most commenters have 

a policy preference for the status quo 

over the proposed rule changes. The 

Departments have been forthright in 

acknowledging the changes, but have 

also explained the reasoning behind 

those changes, including the lack of 

clarity in key statutory language and the 

resulting cacophony of case law that 

leads to confusion and inconsistency in 

adjudication. The Departments 

acknowledge changes in positions, 

where applicable have provided good 

reasons for the changes; they believe the 

changes better implement the law; and 

they have provided a ‘‘reasoned 

analysis’’ for the changes, which is 

contained in the NPRM and reiterated 

herein in response to the comments 

received. In short, the rule is not 

‘‘arbitrary and capricious’’ under 

existing law. See FCC v. Fox Television 

Stations, Inc., 556 U.S. 502, 515 (2009). 

Finally, many commenters assert that 

various provisions of the NPRM are 

inconsistent with either Board or 

circuit-court precedents. The 

Departments may engage in rulemaking 

that overrules prior Board precedent, 

and as noted in the NPRM, 85 FR at 

36265 n.1, to the extent that some 

circuits have disagreed with the 

Departments’ interpretations of 

ambiguous statutory terms in the past, 

the Departments’ new rule would 

warrant reevaluation in appropriate 

cases under well-established principles 

of administrative law. See Nat’l Cable & 

Telecomms. Ass’n v. Brand X internet 

Servs., 545 U.S. 967, 982 (2005) 

(hereinafter ‘‘Brand X’’); Chevron, 

U.S.A., Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837, 

842–844 (1984). Moreover, ‘‘ ‘judicial 

deference to the Executive Branch is 

especially appropriate in the 

immigration context,’ where decisions 

about a complex statutory scheme often 

implicate foreign relations.’’ Scialabba 

v. Cuellar de Osorio, 573 U.S. 41, 56– 

57 (2014) (plurality op.) (quoting INS v. 

Aguirre-Aguirre, 526 U.S. 415, 425 

(1999)). 

Consequently, for the reasons 

explained in the NPRM and herein, 

prior Board and circuit court decisions 

do not restrict the Departments to the 

extent asserted by most commenters. 

Further, as also discussed, infra, and 

recognized by commenters, much of the 

relevant circuit court case law points in 

different directions and offers multiple 

views on the issues in the NPRM. There 

is nothing inappropriate about the 

Departments seeking to improve the 

consistency, clarity, and efficiency of 

asylum adjudications, and to bring some 

reasonable order to the dissonant views 

on several important-but-contested 

statutory issues. See, e.g., Fed. Express 

Corp. v. Holowecki, 552 U.S. 389, 403 

(2008) (‘‘We find no reason in this case 

to depart from our usual rule: Where 

ambiguities in statutory analysis and 

application are presented, the agency 

may choose among reasonable 

alternatives.’’). 

Overall, and as discussed in more 

detail below, the Departments generally 

decline to adopt the recommendations 

of comments that misinterpret the 

NPRM, offer dire and speculative 

predictions that lack support, are 

contrary to facts or law, or otherwise 

lack an understanding of relevant law 

and procedures. 

B. Comments Expressing Support for the 

Proposed Rule 

Comment: At least two organizations 

and other individual commenters 

expressed general support for the rule. 

Some commenters noted the need for 

regulatory reform given the current 

delays in asylum adjudication and said 

the rule is a move in the right direction. 

Other commenters indicated a range of 

reasons for their support, including a 

desire to limit overall levels of 

immigration, a belief that many 

individuals who claim asylum are 

instead simply seeking better economic 

opportunities, or a belief that asylum 

seekers or immigration representatives 

abuse the asylum system. 

Commenters stated that the rule will 

aid both adjudicators and applicants. 

For example, one individual and 

organization explained that: 

[T]hese proposals will give aliens applying 

for protection ample notice and motivation to 

file complete and adequately reasoned 

asylum applications in advance of the merits 

hearing, which will protect the rights of the 

alien, assist the IJ in completing the case in 

a timely manner, and aid the ICE attorney in 

representing the interests of the government. 

Response: The Departments note and 

appreciate these commenters’ support 

for the rule. 


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13See infra Section II.C.6.8 for further discussion 

on this point. 

C. Comments Expressing Opposition to 

the Proposed Rule 

1. General Opposition 

1.1. General Immigration Policy 

Concerns 

Comment: Many commenters 

expressed a general opposition to the 

rule, and noted that, although they may 

not be commenting on every aspect of 

the rule, a failure to comment on a 

specific provision does not mean that 

the commenter agrees with a provision. 

Commenters stated that the rule would 

‘‘destroy’’ the U.S. asylum system and 

would result in the denial of virtually 

all asylum applications. Instead, 

commenters recommended that the 

current regulations remain in place. 

Moreover, commenters stated that the 

rule conflicts with America’s values and 

deeply rooted policy of welcoming 

immigrants and refugees. Commenters 

asserted that the rule would damage the 

United States’ standing in the world. 

Commenters explained that the United 

States should be promoting values of 

freedom and human rights, and that 

immigration benefits the United States 

both economically and culturally. 

Commenters asserted that the rule 

provides inadequate legal reasoning and 

is inappropriately motivated by the 

administration’s animus against 

immigrants. 

Response: The rule is not immoral, 

motivated by racial animus, or 

promulgated with discriminatory intent. 

Instead, the rule is intended to help the 

Departments better allocate limited 

resources in order to more expeditiously 

adjudicate meritorious asylum, statutory 

withholding of removal, and CAT 

protection claims. For example, placing 

aliens who receive a positive credible 

fear screening into asylum-andwithholding-only proceedings will 

lessen the strain on the immigration 

courts by limiting the focus of such 

proceedings and thereby streamlining 

the process. Similarly, applying certain 

asylum bars and raising the standards 

for statutory withholding of removal 

and CAT protection will help screen out 

non-meritorious claims during the 

credible fear screening, which will 

allow the Departments to devote their 

limited resources to adjudicating claims 

that are more likely to be meritorious. 

Likewise, allowing immigration judges 

to pretermit asylum applications that 

are not prima facie eligible for relief will 

allow judges to use limited hearing time 

to focus on cases with a higher chance 

of being meritorious. The rule’s 

expanded definition of frivolousness 

will also help to deter specious claims 

that would otherwise require the use of 

limited judicial resources. The rule’s 

additional guidance regarding certain 

definitions (such as particular social 

groups, political opinion, persecution, 

and acquiescence, among others), as 

well as enumerated negative 

discretionary factors, will provide 

clarity to adjudicators and the parties 

and make the adjudicatory process more 

efficient and consistent. 

These changes do not ‘‘destroy’’ the 

U.S. asylum system, prevent aliens from 

applying for asylum, or prevent the 

granting of meritorious claims, contrary 

to commenters’ claims. The asylum 

system remains enshrined in both 

statute and regulation. Rather, the 

changes are intended to harmonize the 

process between the relevant 

Departments, provide more clarity to 

adjudicators, and allow the immigration 

system to more efficiently focus its 

resources on adjudicating claims that 

are more likely to be meritorious. In 

doing so, the rule will help the 

Departments ensure that the asylum 

system is available to those who truly 

have ‘‘nowhere else to turn.’’ Matter of 

B–R–, 26 I&N Dec. 119, 122 (BIA 2013) 

(internal citations omitted). 

1.2. Issuance of Joint Regulations 

Comment: At least one commenter 

expressed a belief that it is 

inappropriate for DHS (characterized by 

the commenter as the immigration 

prosecutors) and DOJ (characterized by 

the commenter as the immigration 

adjudicators) to issue rules jointly 

because the agencies serve different 

roles and missions within the 

immigration system. The commenter 

stated that the issuance of joint 

regulations calls into question the 

agencies’ independence from each 

other. 

Response: The HSA divided, between 

DHS and DOJ, some immigration 

adjudicatory and enforcement functions 

that had previously been housed within 

DOJ. See INA 103, 8 U.S.C. 1103 (setting 

out the powers of the Secretary and 

Under Secretary of DHS and of the 

Attorney General); see also HSA, sec. 

101, 116 Stat. at 2142 (‘‘There is 

established a Department of Homeland 

Security, as an executive department of 

the United States... .’’). However, 

the Departments disagree that issuing 

joint regulations violates the agencies’ 

independence in the manner suggested 

by commenters. Instead, the DHS and 

DOJ regulations are inextricably 

intertwined, and the Departments’ roles 

are often complementary. See, e.g., INA 

235(b)(1)(B)(iii)(III), 8 U.S.C. 

1225(b)(1)(B)(iii)(III) (providing for 

immigration judge review of asylum 

officers’ determinations regarding 

certain aliens’ credible fear claims); see 

also 8 CFR 208.30 and 1208.30 (setting 

out the credible fear procedures, which 

involve actions before both DHS/USCIS 

and DOJ/EOIR). Because officials in 

both DHS and DOJ make determinations 

involving the same provisions of the 

INA, including those related to asylum, 

it is appropriate for the Departments to 

coordinate on regulations like the 

proposed rule that affect both agencies’ 

equities in order to ensure consistent 

application of the immigration laws. 

1.3. Impact on Particular Populations 

Comment: Commenters asserted that 

the proposed regulation is in conflict 

with American values and that it would 

deny due process to specific 

populations—including women, LGBTQ 

asylum seekers, and children. 

Commenters similarly expressed 

concerns that the proposed regulation 

would lead to the denial of virtually all 

applications from those populations, 

which, commenters asserted, would 

place them in harm’s way. 

Commenters asserted that the 

elimination of gender-based claims 

would be particularly detrimental to 

women and LGBTQ asylum-seekers. 

Commenters asserted that the proposed 

rule would ‘‘all but ban’’ domesticviolence-based and gang-based claims. 

Commenters noted that courts have 

found that such claims can be 

meritorious. 

Response: The Departments disagree 

that the rule is contrary to American 

values. The United States continues to 

fulfill its international commitments in 

accordance with the Refugee Act of 

1980,13 evidenced by United Nations 

High Commissioner for Refugees 

(‘‘UNHCR’’) data on refugee resettlement 

confirming that the United States was 

the top country for refugee resettlement 

in 2019, as well as 2017 and 2018. See 

UNHCR, Resettlement at a Glance 

(January–December 2019), https://

www.unhcr.org/protection/resettlement/ 

5e31448a4/resettlement-fact-sheet2019.html. Further, since the Refugee 

Act was passed, the United States has 

admitted more than three million 

refugees and granted asylum to more 

than 721,000 individuals. See UNHCR, 

Refugee Admissions, https://

www.state.gov/refugee-admissions/. In 

Fiscal Year (‘‘FY’’) 2019 alone, the 

Departments approved nearly 39,000 

asylum applications. EOIR, Asylum 

Decision Rates, (Oct. 13, 2020), https:// 

www.justice.gov/eoir/page/file/1248491/ 

download (listing 18,836 grants); USCIS, 

Number of Service-wide Forms Fiscal 


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Year To- Date, https://www.uscis.gov/ 

sites/default/files/document/data/ 

Quarterly_All_Forms_FY19Q4.pdf 

(listing 19,945 grants). This rule does 

not affect the United States’ longstanding commitment to assisting 

refugees and asylees from around the 

world. 

The rule does not deny due process to 

any alien. As an initial matter, courts 

have found that aliens have no 

cognizable due process interest in the 

discretionary benefit of asylum. See 

Yuen Jin v. Mukasey, 538 F.3d 143, 

156–57 (2d Cir. 2008); Ticoalu v. 

Gonzales, 472 F.3d 8, 11 (1st Cir. 2006) 

(citing DaCosta v. Gonzales, 449 F.3d 

45, 49–50 (1st Cir. 2006)). Still, the 

statute and regulations provide for 

certain basic procedural protections— 

such as notice and an opportunity to be 

heard—and the rule does not alter those 

basic protections. See LaChance v. 

Erickson, 522 U.S. 262, 266 (1998) 

(‘‘The core of due process is the right to 

notice and a meaningful opportunity to 

be heard.’’); see also Lapaix v. U.S. Att’y 

Gen., 605 F.3d 1138, 1143 (11th Cir. 

2010) (‘‘Due process requires that aliens 

be given notice and an opportunity to be 

heard in their removal proceedings.’’). 

Aliens in removal proceedings will 

continue to be provided a notice of the 

charges of removability, INA 239(a)(1), 8 

U.S.C. 1229(a)(1), have an opportunity 

to present the case to an immigration 

judge, INA 240(a)(1), 8 U.S.C. 

1229a(a)(1), and have an opportunity to 

appeal, 8 CFR 1003.38. Aliens in 

asylum-and-withholding-only 

proceedings will continue to be 

provided notice of referral for a hearing 

before an immigration judge, 8 CFR 

1003.13 (defining ‘‘charging document’’ 

used by DHS to initiate non-removal, 

immigration proceedings before an 

immigration judge), to have an 

opportunity to be heard by an 

immigration judge, 8 CFR 1208.2(c), and 

have an opportunity to appeal, 8 CFR 

1003.1(b)(9). Nothing in the proposed 

regulations alters those well-established 

procedural requirements. 

The generalized concern that the rule 

will categorically deny asylum to 

classes of persons, such as women or 

LGBTQ asylum-seekers—and thus put 

those persons in harm’s way—is 

unsupported, speculative, and overlooks 

the case-by-case nature of the asylum 

process. The rule provides more clarity 

to adjudicators regarding a number of 

difficult issues—e.g. persecution, 

particular social group, and nexus—in 

order to improve the consistency and 

quality of adjudications, but it 

establishes no categorical bars to 

domestic-violence-based or gang-based 

claims, and no categorical bars based on 

the class or status of the person claiming 

asylum; instead, asylum cases turn on 

the nature of the individual’s claim. 

Moreover, in accordance with its nonrefoulement obligations, the United 

States continues to offer statutory 

withholding of removal and CAT 

protection. Although this rule amends 

those forms of relief, the amended relief 

continues to align with the provisions of 

the 1951 Convention relating to the 

Status of Refugees, the 1967 Protocol 

relating to the Status of Refugees, and 

the CAT, such that eligible aliens will 

not be returned to places where they 

may be subjected to persecution or 

torture. 

The portion of the rule that draws the 

objection above does not categorically 

ban or eliminate any types of claims, 

including those posited by the 

commenters. In relevant part, the rule 

codifies a long-standing test for 

determining the cognizability of 

particular social groups and sets forth a 

list of common fact patterns involving 

particular-social-group claims that 

generally will not meet those longstanding requirements. See 85 FR at 

36278–79; see also 8 CFR 208.1(f)(1), 

1208.1(f)(1). At the same time, the 

Departments recognized in the NPRM 

that ‘‘in rare circumstances,’’ items from 

the list of common fact patterns ‘‘could 

be the basis for finding a particular 

social group, given the fact- and societyspecific nature of this determination.’’ 

85 FR at 36279. Thus, the NPRM 

explicitly stated that the rule did not 

‘‘foreclose’’ any claims; the inquiry 

remains case-by-case. 

2. Expedited Removal and Screenings in 

the Credible Fear Process 

2.1. Asylum-and-Withholding-Only 

Proceedings for Aliens With Credible 

Fear 

Comment: One organization stated 

that the rule would deprive individuals 

who have established a credible fear 

from being placed into full removal 

proceedings under section 240 of the 

Act, 8 U.S.C. 1229a. Another 

organization claimed that the rule, 

‘‘effectively destroys due process rights 

of asylum seekers’’ as it would prevent 

these individuals from contesting 

removability where there are ‘‘egregious 

due process violations,’’ defects in the 

Notice to Appear, or competency 

concerns. 

One organization stated that the rule 

is contrary to congressional intent 

because there is no statutory prohibition 

against placing arriving asylum seekers 

into complete section 240 proceedings, 

and at least one organization claimed 

that this intent is supported by the 

legislative history. One organization 

expressed its disagreement with the 

rule’s citation to Matter of M–S–, 27 I&N 

Dec. 509 (A.G. 2019), 85 FR at 36267 

n.9, contending that if Congress 

intended to ‘‘strip asylum-seekers of 

their due process rights, it would have 

expressly said so.’’ Another organization 

stated that the rule is ‘‘[a]rbitrary and 

capricious,’’ noting that the proposed 

policy is a ‘‘dramatic change’’ from 

decades of practice but claiming the 

Departments offer ‘‘no discussion’’ as to 

why it is necessary. 

One organization emphasized that 

‘‘asylum-only proceedings,’’ are limited 

in scope and both parties are prohibited 

from raising ‘‘any other issues.’’ The 

organization alleged that the NPRM did 

not include any data regarding the 

number of asylum seekers who are 

placed in section 240 proceedings after 

passing a credible fear interview, or the 

number of respondents in these 

proceedings who are granted some form 

of relief besides asylum or withholding 

of removal. Because of this, the 

organization claimed that the rule ‘‘does 

not provide adequate justification’’ for 

the proposed change. 

Another organization claimed the rule 

‘‘pre-supposes’’ that asylum seekers 

would not be eligible for other forms of 

immigration relief. The organization 

noted that many individuals who are 

apprehended at the border as asylum 

applicants may also be victims of 

human trafficking or serious crimes 

committed within the United States. 

The organization stated that Congress 

has recognized the unique assistance 

that victims of human trafficking and 

victims of crimes potentially eligible for 

U visas are able to provide to Federal 

law enforcement, claiming this is the 

reason the S visa, T visa, and U visa 

programs were created. The 

organization asserted that if the 

Departments ‘‘cut off’’ access to a 

complete section 240 proceeding, they 

will essentially ‘‘tie the hands’’ of law 

enforcement. Another organization 

expressed concern that the rule would 

prevent survivors of gender-based and 

LGBTQ-related violence in expedited 

removal proceedings from applying for 

protection under the Violence Against 

Women Act (‘‘VAWA’’) or the William 

Wilberforce Trafficking Victims 

Protection Reauthorization Act of 2008 

(‘‘TVPRA’’). 

One organization contended that there 

is little efficiency in abandoning 

removability determinations in removal 

proceedings, arguing that ‘‘[i]n the 

overwhelming majority of cases, the 

pleadings required to establish 

removability take 30 seconds.’’ The 

organization argued that Congress 


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14The Departments note that section 240(a)(3) of 

the Act (8 U.S.C. 1229a(a)(3)), which makes removal 

proceedings the ‘‘exclusive’’ procedure for 

inadmissibility and removability determinations, is 

inapplicable here because DHS has already 

determined inadmissibility as part of the expedited 

removal process. See INA 235(b)(1)(A)(i) (8 U.S.C. 

1225(b)(1)(A)(i)). 

would not have chosen to sacrifice 

competency and accuracy to save such 

a short amount of time. Another 

organization criticized the rule’s 

statement that ‘‘referring aliens who 

pass a credible fear for section 240 

proceedings runs counter to [the] 

legislative aims’’ of a quick expedited 

removal process, 85 FR at 36267, 

arguing that this justification is ‘‘faulty 

at best and baseless at worst.’’ One 

organization claimed that administrative 

efficiency is aided by the availability of 

a broad range of reliefs because 

respondents placed in full removal 

proceedings often qualify for a simpler 

form of relief, allowing courts to omit 

many of these complexities. 

One organization noted that, in the 

expedited removal context, decisions 

are made by Customs and Border 

Protection (‘‘CBP’’) officers. The 

organization expressed concern about 

the risk of error in permitting an 

enforcement officer to act as both 

‘‘prosecutor and judge,’’ particularly 

when the officer’s decisions are not 

subject to appellate review. The 

organization also noted the rule’s 

reference to the ‘‘prosecutorial 

discretion’’ of DHS in removal 

proceedings and argued that this 

discretion does not include the 

authority to create new types of 

proceedings. Instead, the organization 

contended that this discretion is 

confined to decisions surrounding the 

determination of whether to pursue 

charges. Another organization 

emphasized that, while DHS has the 

discretion to place an individual 

without documentation directly into 

section 240 proceedings instead of 

expedited removal, this discretion is 

‘‘initial,’’ and does not continue once 

the individual has established fear (as 

the individual must then be referred for 

full consideration of his or her claims). 

The organization disagreed with the 

rule’s assertion, 85 FR at 36266, that the 

current practice of placing applicants 

with credible fear into section 240 

proceedings ‘‘effectively negat[es]’’ 

DHS’s prosecutorial discretion. 

The organization further disagreed 

with the Departments’ claim that ‘‘[b]y 

deciding that the [individual] was 

amenable to expedited removal, DHS 

already determined removability,’’ 85 

FR at 36266, contending this 

‘‘overreaches.’’ The organization noted 

that, pursuant to section 235(b)(1) of the 

Act, 8 U.S.C. 1225(b)(1), a DHS 

inspector does have initial discretion to 

place an applicant into expedited 

removal proceedings if it is determined 

that the person ‘‘is inadmissible under 

section 1182(a)(6)(C) or 1182(a)(7);’’ 

however, the organization emphasized 

that this is not the ultimate 

determination for applicants who 

establish credible fear, as DHS cannot 

continue to seek expedited removal at 

this point. 

One organization stated that, when 

Congress enacted the Illegal 

Immigration Reform and Immigrant 

Responsibility Act of 1996 (‘‘IIRIRA’’), 

Public Law 104–208, Div. C, 110 Stat. 

3009, 3009–546, it created two specific 

removal procedures: Expedited removal 

proceedings in section 235 of the Act, 8 

U.S.C. 1225, and regular removal 

proceedings in section 240 of the Act, 8 

U.S.C. 1229a. The organization asserted 

that section 240 proceedings are the 

‘‘exclusive’’ admission and removal 

proceedings ‘‘unless otherwise 

specified’’ in the Act, 8 U.S.C. 

1229a(a)(3). The organization also noted 

Congress’s specification that certain 

classes of citizens should not be placed 

in full removal proceedings, noting the 

exclusion of persons convicted of 

particular crimes (INA 240(a)(3), 8 

U.S.C. 1229a(a)(3)); INA 238(a)(1), 8 

U.S.C. 1228(a)(1)) as well as the 

prohibition of visa waiver program 

participants from contesting 

inadmissibility or removal except on the 

basis of asylum (INA 217(b), 8 U.S.C. 

1187(b)). The organization also noted 

that, within the expedited removal 

statute itself, Congress specifically 

excluded stowaways from section 240 

proceedings (INA 235(a)(1), 8 U.S.C. 

1225(a)(2)); in contrast, Congress 

considered asylum seekers to be 

applicants for admission under section 

235(a)(1) of the Act, 8 U.S.C. 1225(a)(1), 

and did not similarly exclude them (see 

INA 235(b), 8 U.S.C. 1225(b)). The 

organization concluded that the plain 

text of the INA ‘‘precludes the agencies’ 

claim that they are free to make up new 

procedures to apply to arriving asylees’’ 

(citing Henson v. Santander Consumer 

USA, Inc., 137 S. Ct. 1718, 1723 (2017)). 

The organization claimed that IIRIRA’s 

legislative history ‘‘unanimously 

confirms’’ this conclusion, citing the 

conference report by the Joint 

Committee from the House and the 

Senate in support of its assertion. See 

H.R. Rep. No. 104–828 at 209 (1996). 

The organization also emphasized that, 

after twenty-three years of placing 

applicants with credible fear into 

section 240 proceedings, ‘‘Congress has 

never suggested that the agencies got 

that wrong.’’ 

Another organization emphasized that 

Congress only authorized expedited 

removal for a specific category of 

noncitizens and that, at the time this 

determination was made, the class was 

confined to individuals arriving at ports 

of entry. The organization argued that 

Congress did not intend to deter 

individuals who have ‘‘cleared the 

hurdle of establishing a credible fear of 

persecution.’’ Another organization 

argued that the credible fear screening 

‘‘creates an exit’’ from expedited 

removal proceedings, emphasizing that 

those who establish credible fear are 

effectively ‘‘screened out’’ of expedited 

removal proceedings (INA 

235(b)(1)(B)(ii)–(iii), 8 U.S.C. 

1225(b)(1)(B)(ii)–(iii)). One organization 

expressed particular concern that ‘‘the 

president has announced an intention to 

expand expedited removal to the 

interior of the United States,’’ noting 

that noncitizens who have been in the 

United States for up to two years are 

more likely to have other forms of relief 

to pursue. 

Response: The Departments disagree 

with commenters that the INA requires 

aliens who are found to have a credible 

fear to be placed in full removal 

proceedings pursuant to section 240 of 

the Act, 8 U.S.C. 1229(a). The expedited 

removal statute states only that ‘‘the 

alien shall be detained for further 

consideration of the application for 

asylum,’’ but is silent on the type of 

proceeding. INA 235(b)(1)(B)(ii) 8 U.S.C. 

1225(b)(1)(B)(ii). This silence is notable 

as Congress expressly required or 

prohibited the use of full removal 

proceedings elsewhere in the same 

expedited removal provisions. Compare 

INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A) 

(explicitly requiring certain aliens not 

eligible for expedited removal to be 

placed in section 240 removal 

proceedings), with INA 235(a)(2), 8 

U.S.C. 1225(a)(2) (explicitly prohibiting 

stowaways from being placed in section 

240 removal proceedings).14 As 

explained in the NPRM, the former 

Immigration and Naturalization Service 

(‘‘INS’’) interpreted this ambiguous 

section to place aliens with positive 

credible fear determinations into section 

240 removal proceedings. See 

Inspection and Expedited Removal of 

Aliens; Detention and Removal of 

Aliens; Conduct of Removal 

Proceedings; Asylum Procedures, 62 FR 

10312 (Mar. 6, 1997). However, it is the 

Departments’ view that the better 

interpretation is to place aliens with 

positive credible fear determinations 

into limited asylum-and-withholdingonly proceedings. This is consistent 

with the statutory language that the 


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15The Departments note that any comments 

regarding the potential expansion of expedited 

removal is outside the scope of this rule. Cf. 

Designating Aliens for Expedited Removal, 84 FR 

35409 (July 23, 2019). 

16The Departments note that S-visa recipients are 

already subject to withholding-only proceedings. 

INA 214(k)(3)(C), 8 U.S.C. 1184(k)(3)(C); 8 CFR 

236.4(d), (e) and 1208.2(c)(2)(vi). 

alien is entitled to a further proceeding 

related to the alien’s ‘‘application for 

asylum,’’ and not a full proceeding to 

also determine whether the alien should 

be admitted or is otherwise entitled to 

various immigration benefits. INA 

235(b)(1)(B)(ii), 8 U.S.C. 

1225(b)(1)(B)(ii). 

This interpretation also best aligns 

with the overall purpose of the 

expedited removal statute to provide a 

streamlined and efficient removal 

process for certain aliens designated by 

Congress.15 See generally INA 235, 8 

U.S.C. 1225; cf. DHS v. Thuraissigiam, 

140 S.Ct. 1959, 1966 (2020) (‘‘As a 

practical matter . . . the great majority 

of asylum seekers who fall within the 

category subject to expedited removal 

do not receive expedited removal and 

are instead afforded the same 

procedural rights as other aliens.’’). 

Further, contrary to commenters’ 

claims, placing aliens into asylum-andwithholding-only proceedings is not 

inconsistent with the purposes of the 

credible fear statute. See INA 

235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The 

credible fear process was designed to 

ensure that aliens subject to expedited 

removal are not summarily removed to 

a country where they may face 

persecution on account of a protected 

ground or torture. This rule maintains 

those protections by ensuring that an 

alien with a positive credible fear 

finding receives a full adjudication of 

their claim in asylum-and-withholdingonly proceedings. 

Regarding commenters’ concerns 

about due process in asylum-andwithholding-only proceedings, the 

Departments note that the rule provides 

the same general procedural protections 

as section 240 removal proceedings. See 

85 FR at 36267 (‘‘These ‘asylum-andwithholding-only’ proceedings generally 

follow the same rules of procedure that 

apply in section 240 

proceedings... .’’); accord 8 CFR 

1208.2(c)(3)(i) (‘‘Except as provided in 

this section, proceedings falling under 

the jurisdiction of the immigration judge 

pursuant to paragraph (c)(1) or (c)(2) of 

this section [i.e., asylum-andwithholding-only proceedings] shall be 

conducted in accordance with the same 

rules of procedure as proceedings 

conducted under 8 CFR part 1240, 

subpart A [i.e., removal proceedings].’’). 

Moreover, just as in removal 

proceedings, aliens will be able to 

appeal their case to the BIA and Federal 

circuit courts, as necessary. Finally, DOJ 

has conducted asylum-and-withholdingonly proceedings for multiple categories 

of aliens for years already, 8 CFR 

1208.2(c)(1) and (2), with no alleged 

systemic concerns documented about 

the due process provided in those 

proceedings. 

The Departments agree with the 

commenter who noted that removability 

determinations are typically brief for 

those aliens subject to expedited 

removal who subsequently establish a 

credible fear and are placed in removal 

proceedings. The Departments believe 

that comment further supports the 

placement of such aliens in asylum-andwithholding-only proceedings since ‘‘in 

the overwhelming majority of cases,’’ 

there is no need for a new removability 

determination that would otherwise be 

called for in removal proceedings. 

The Departments disagree with 

commenters that section 240 removal 

proceedings are more efficient than 

asylum-and-withholding-only 

proceedings or that more data is 

required to align asylum-andwithholding-only proceedings with the 

statutory language of INA 

235(b)(1)(B)(ii), 8 U.S.C. 

1225(b)(1)(B)(ii), especially when there 

was little analysis—and no data 

offered—to support placing aliens with 

positive credible fear determinations in 

removal proceedings in the first 

instance. See 85 FR at 36266 (stating 

that the 1997 decision to place such 

aliens in removal proceedings was made 

with limited analysis, other than to note 

that the statute was silent on the type of 

proceeding that could be used). Most 

aliens subject to the expedited removal 

process are, by definition, less likely to 

be eligible for certain other forms of 

relief due to their relatively brief 

presence in the United States. See, e.g., 

INA 240A(b)(1), 8 U.S.C. 1229b(b)(1) 

(cancellation of removal for certain nonpermanent residents requires ten years 

of continuous physical presence); INA 

240B(b)(1)(A), 8 U.S.C. 1229c(b)(1)(A) 

(voluntary departure at the conclusion 

of proceedings requires an alien to have 

been physically present in the United 

States for at least one year prior to the 

service of a notice to appear). In 

particular, they are less likely to be 

eligible for the simplest form of relief, 

voluntary departure, because either they 

are arriving aliens, INA 240B(a)(4), 8 

U.S.C. 1229c(a)(4), or they are seeking 

asylum, 8 CFR 1240.26(b)(1)(i)(B) 

(requiring the withdrawal of claims for 

relief in order to obtain pre-hearing 

voluntary departure), or they have not 

been physically present in the United 

States for at least one year prior to being 

placed in proceedings, INA 

240B(b)(1)(A), 8 U.S.C. 1229c(b)(1)(A). 

Further, immigration judges often 

adjudicate multiple forms of relief in a 

single removal proceeding—in addition 

to asylum, withholding of removal, or 

CAT claims—and those additional 

issues generally only serve to increase 

the length of the proceedings. Although 

there may be rare scenarios in which 

aliens subject to expedited removal are 

eligible for a form of relief other than 

asylum, the Departments believe that 

interpreting the statute to place aliens 

with positive credible-fear 

determinations into more limited 

asylum-and-withholding-only 

proceedings properly balances the need 

to prevent aliens from being removed to 

countries where they may face 

persecution or torture with ensuring the 

efficiency of the overall adjudicatory 

process. 

The Departments also disagree with 

comments that the placement of aliens 

who have passed a credible fear review 

in asylum-and-withholding-only 

proceedings will somehow ‘‘tie the 

hands’’ of law enforcement regarding an 

alien’s eligibility for certain visas. The 

rule has no bearing on an alien’s ability 

to provide assistance to law 

enforcement, and the adjudication of 

applications for S-, T-, and U-visas 

occurs outside of any immigration court 

proceedings.16 See generally 8 CFR 

214.2(t) (S-visa adjudication process), 

214.11 (T-visa adjudication process), 

214.14 (U-visa adjudication process). 

Commenters also mischaracterize the 

Departments’ policy reliance on DHS’s 

prosecutorial discretion authority, 

claiming that the Departments are 

relying on this discretion as the legal 

authority for placing aliens with 

positive credible fear determinations 

into asylum-and-withholding-only 

proceedings. However, it is the 

expedited removal statute that provides 

the authority, see INA 235(b)(1)(B)(ii), 8 

U.S.C. 1225(b)(1)(B)(ii), not DHS’s 

prosecutorial discretion. In the NPRM, 

the Departments noted that it made 

better policy sense to place aliens with 

positive credible fear determinations 

into asylum-and-withholding-only 

proceedings; placing aliens in section 

240 proceedings after a credible fear 

determination ‘‘effectively negates 

DHS’s original discretionary decision.’’ 

85 FR at 36266. 

The Departments acknowledge 

commenters’ concerns about CBP 

processing aliens for expedited removal 

and the exercise of prosecutorial 

discretion, but those issues are beyond 


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17Even in situations in which an immigration 

judge conducts the review from a different 

location—e.g. by telephone or by video 

teleconferencing—in a different circuit, the rule 

provides a clear choice of law principle to apply. 

the scope of the rule. Moreover, the rule 

does not affect DHS’s use of 

prosecutorial discretion, nor does it 

alter any other statutory authority of 

CBP. 

2.2. Consideration of Precedent When 

Making Credible Fear Determinations in 

the ‘‘Credible Fear’’ Process 

Comment: One organization stated 

that the rule would ‘‘unnecessarily 

narrow’’ the law that immigration 

judges must consider in the context of 

a credible fear review, restricting them 

to the circuit court law in their own 

jurisdiction. The organization alleged 

that this ‘‘makes little sense’’ because 

individuals seeking a credible fear 

review will often have their asylum 

claim adjudicated in a jurisdiction with 

different case law than the jurisdiction 

where their credible fear claim is 

reviewed. As an example, one 

organization suggested that an asylum 

seeker apprehended in Brownsville, 

Texas, in the Fifth Circuit, could 

subsequently have his or her asylum 

claim heard in an immigration court 

located within another circuit’s 

jurisdiction. Because of this, the 

organization urged asylum officers and 

immigration judges to consider all case 

law when determining the possibility of 

succeeding on the claim, ‘‘[r]egardless of 

the location of the credible fear 

determination.’’ 

One organization claimed the rule 

could require asylum officers to order 

the expedited removal of an applicant 

who has shown an ability to establish 

asylum eligibility under section 208 of 

the Act, 8 U.S.C. 1158, in another circuit 

or district, which the organization 

alleged is contrary to section 

235(b)(1)(B)(v) of the Act, 8 U.S.C. 

1225(b)(1)(B)(v). The organization also 

claimed this portion of the rule is ‘‘flatly 

contrary’’ to the decision in Grace v. 

Whitaker, 344 F. Supp. 3d 96 (D.D.C. 

2018) (hereinafter ‘‘Grace I’’), overruled 

in part, Grace v. Barr, 965 F.3d 883 

(D.C. Cir. 2020), holding that the same 

provision in USCIS guidance was 

contrary to the INA. The organization 

quoted Grace I, 344 F. Supp. 3d 96 in 

which the court stated that ‘‘[t]he 

government’s reading would allow for 

an [individual’s] deportation, following 

a negative credible fear determination, 

even if the [individual] would have a 

significant possibility of establishing 

asylum under section 1158 during his or 

her removal proceeding. Thus, the 

government’s reading leads to the exact 

opposite result intended by Congress.’’ 

Id. at 140. The organization also claimed 

the rule violates Brand X because it 

exceeds the Departments’ ‘‘limited 

ability to displace circuit precedent on 

a specific question of law to which an 

agency decision is entitled to deference’’ 

(citing Grace I, 344 F. Supp. 3d at 136). 

Another organization alleged that the 

Departments offer no explanation for the 

policy change, claiming there is ‘‘no 

discernable reason’’ for it other than to 

‘‘limit the possibility of favorable case 

law in another jurisdiction.’’ 

One organization noted that wellsettled USCIS policy holds that, in the 

case of a conflict or question of law, 

‘‘generally the interpretation most 

favorable to the applicant is used when 

determining whether the applicant 

meets the credible fear standard’’ 

regardless of where the credible fear 

interview is held. The organization 

claimed that this policy is in line with 

congressional intent, quoting a 

statement from Representative Smith 

that ‘‘[l]egal uncertainty must, in the 

credible fear context, adhere to the 

applicant’s benefit.’’ The organization 

alleged that the NPRM fails to note or 

explain this departure from practice. 

Response: The Departments decline to 

respond to comments centering on an 

asylum officer’s consideration of 

precedent as that issue was not 

addressed in this rule, and further 

disagree with commenters that 

immigration judges are currently 

required to consider legal precedent 

from all Federal circuit courts in 

credible fear proceedings. DOJ has not 

issued any regulations or guidance 

requiring immigration judges to use a 

‘‘most favorable’’ choice of law standard 

in credible fear review proceedings. See, 

e.g., 8 CFR 1003.42. 

Moreover, the statute is silent as to 

this choice of law question. See INA 

235(b)(1)(B)(iii)(III), 8 U.S.C. 

1225(b)(1)(B)(iii)(III). Due to this 

ambiguity, the Departments are 

interpreting the statute to require 

immigration judges to apply the law of 

the circuit in which the credible fear 

review proceeding is located. This better 

comports with long-standing precedent 

affirming the use of the ‘‘law of the 

circuit’’ standard in immigration 

proceedings. See Jama v. ICE, 543 U.S. 

335, 351 n.10 (2005) (‘‘With rare 

exceptions, the BIA follows the law of 

the circuit in which an individual case 

arises... .’’ (citations omitted)); 

Ballesteros v. Ashcroft, 452 F.3d 1153, 

1157 (10th Cir. 2006) (explaining that an 

immigration judge ‘‘should analyze 

removability and relief issues using only 

the decisions of the circuit in which he 

or she sits . . . since it is to that circuit 

that any appeal from a final order of 

removal must be taken’’). It will also 

provide clarity to immigration judges 

conducting credible fear reviews, 

particularly on issues in which there is 

conflicting circuit court precedent. 

Further, contrary to commenters’ 

assertions, in most cases the 

immigration judge conducting the 

credible fear review in person will be in 

the same circuit in which the full 

asylum application in asylum-andwithholding only proceedings would be 

adjudicated if the judge finds the alien 

has a credible fear.17 Aliens in this 

posture are subject to detention by DHS. 

Thuraissigiam, 140 S.Ct. at 1966 

(‘‘Whether an applicant [subject to 

expedited removal] who raises an 

asylum claim receives full or only 

expedited review, the applicant is not 

entitled to immediate release.’’). As a 

result, unless DHS moves the alien to a 

detention facility in a different circuit, 

the case would likely remain in the 

same jurisdiction. Requiring the 

immigration judge to review nationwide 

circuit case law would only create 

inefficiencies in a credible fear review 

process that Congress intended to be 

streamlined. See INA 

235(b)(1)(B)(iii)(III), 8 U.S.C. 

1225(b)(1)(B)(iii)(III) (requiring 

immigration judge review to be 

completed ‘‘as expeditiously as 

possible, to the maximum extent 

practicable within 24 hours, but in no 

case later than 7 days’’ after the asylum 

officer’s determination). 

Moreover, the Departments have 

reviewed the statutory mandate in the 

credible fear context and note that a rule 

requiring evaluation of a claim using 

law beyond that of a particular circuit 

could produce perverse outcomes 

contrary to the statute. For example, an 

alien could be found to have a 

‘‘significant possibility’’ of establishing 

eligibility for asylum under section 208 

of the Act even though binding law of 

the circuit in which the application 

would be adjudicated precludes the 

alien from any possibility of 

establishing eligibility for asylum. Such 

an absurd result would be both contrary 

to the statutory definition of a credible 

fear, INA 235(b)(1)(B)(v), 8 U.S.C. 

1225(b)(1)(B)(v), and would further 

burden the system with claims that were 

known to be unmeritorious at the outset. 

The Departments decline to adopt a 

course of action that would lead to 

results inconsistent with the statute. 

Moreover, adopting the uniform rule 

proposed by the Departments would 

ameliorate otherwise significant 

operational burdens—burdens that 

would be inconsistent with Congress’s 


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goal of establishing an efficient 

expedited removal system. Without it, 

asylum officers and immigration judges 

around the country would potentially 

have to consider and apply a shifting 

patchwork of law from across the 

country, and this obligation would 

undermine the stated statutory aim of 

expedited removal: To remove aliens 

expeditiously. 

The Departments’ choice-of-law rule 

in this context is reasonable. The most 

natural choice-of-law principle is the 

rule that the law of the circuit where the 

interview is conducted governs. That is 

the principle embraced by DOJ in 

adjudicating the merits of asylum 

claims, Matter of Anselmo, 20 I&N Dec. 

25, 31 (BIA 1989) (‘‘We are not required 

to accept an adverse determination by 

one circuit . . . as binding throughout 

the United States.’’), as well as by 

circuit courts. For example, where the 

law governing an agency’s adjudication 

is unsettled, an agency generally is 

required to acquiesce only in the law of 

the circuit where its actions will be 

reviewed; while ‘‘intracircuit 

acquiescence’’ is generally required, 

‘‘intercircuit acquiescence’’ is not. See 

Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 

1082, 1093 (D.C. Cir. 1992). Because the 

circuits may disagree on the law, 

requiring acquiescence with every 

circuit would charge the Departments 

with an impossible task of following 

contradictory judicial precedents. See 

Nat’l Envtl. Dev. Ass’n Clean Air Project 

v. EPA, 891 F.3d 1041, 1051 (D.C. Cir. 

2018); see also Grant Med. Ctr. v. 

Hargan, 875 F.3d 701, 709 (D.C. Cir. 

2017). 

Intercircuit nonacquiescence 

principles are especially important 

where there is ‘‘venue uncertainty,’’ 

meaning the agency cannot know at the 

time it issues its decision in which 

circuit that decision will be reviewed. In 

those situations, an agency has 

discretion in its choice of law, though 

it must be candid about its 

nonacquiescence. See Grant Med. Ctr., 

875 F.3d at 707. The rule’s choice-oflaw provision in this context is fully 

consistent with the Board’s longstanding approach and the 

administrative-law principles embraced 

by circuit courts. At the time of the 

credible-fear screenings by an asylum 

officer, the only circuit with a definite 

connection to the proceedings is the 

circuit where the screening of the alien 

takes place. The location of the alien at 

the time of the credible fear 

determination will be the determinative 

factor as to which circuit’s law applies. 

Applying that circuit’s law is an 

objective, reasonable, administrable, 

and fair approach to credible-fear 

screening. 

In Grace v. Barr, the D.C. Circuit 

affirmed an injunction of USCIS’s 

implementation of a ‘‘law of the circuit’’ 

policy in credible fear proceedings. 965 

F.3d 883 (D.C. Cir. 2020) (hereinafter 

‘‘Grace II’’). However, in that case, the 

court affirmed an injunction based on 

USCIS’s failure to explain the basis of 

its ‘‘law of the circuit’’ policy and 

expressly declined to decide whether 

the substance of such a policy—if 

explained more fully—would be 

contrary to law. Id. at 903. Here, as 

detailed above, the Departments have 

explained the necessity of codifying a 

law of the circuit policy in credible fear 

proceedings before immigration judges 

and, to that end, are interpreting an 

ambiguous statutory provision, INA 

235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v) 

(defining ‘‘credible fear of persecution’’ 

by reference to eligibility for asylum), in 

which the Departments are entitled 

deference. See Chevron, U.S.A., Inc., 

467 U.S. at 844 (holding that, when 

interpreting an ambiguous statute, ‘‘a 

court may not substitute its own 

construction of a statutory provision for 

a reasonable interpretation made by the 

administrator of an agency’’). 

2.3. Remove and Reserve DHS-Specific 

Procedures From DOJ Regulations 

Comment: In the context of discussing 

the DOJ’s removal of DHS-specific 

provisions from 8 CFR part 1235, at 

least one commenter expressed concern 

that the rule would eliminate or make 

more difficult the parole authority at 8 

CFR 235.3(c). 

Response: Following the enactment of 

the HSA, EOIR’s regulations were 

transferred to or duplicated in a newly 

created chapter V of 8 CFR, with related 

redesignations. See Aliens and 

Nationality; Homeland Security; 

Reorganization of Regulations, 68 FR 

9824, 9830, 9834 (Feb. 28, 2003); see 

also Aliens and Nationality; Homeland 

Security; Reorganization of Regulations, 

68 FR 10349 (Mar. 5, 2003). DOJ 

transferred parts of the Code of Federal 

Regulations that pertained exclusively 

to EOIR from chapter I to chapter V; 

duplicated parts of the Code of Federal 

Regulations that related to both the INS 

and EOIR, which were included in both 

chapters I and V; and made technical 

amendments to both chapters I and V. 

For example, DOJ duplicated all of part 

235 in the newly created 8 CFR part 

1235 because the Department 

determined that ‘‘nearly all of the 

provisions of this part affect bond 

hearings before immigration judges.’’ 68 

FR at 9826. The Departments 

anticipated further future adjustments 

and refinements to the regulations in the 

future ‘‘to further refine the adjudicatory 

process.’’ 68 FR at 9825. 

Upon further review, however, DOJ 

has determined that 8 CFR 1235.1, 

1235.2, 1235.3, and 1235.5 are not 

needed in 8 CFR chapter V because they 

concern procedures specific to DHS’s 

examination of applicants for admission 

and are outside the purview of DOJ’s 

immigration adjudicators. See 85 FR at 

36267. In order to prevent confusion 

and reduce the chance of future 

inconsistencies with 8 CFR 235.1, 235.2, 

235.3, and 235.5, which are not 

amended, the rule removes and reserves 

8 CFR 1235.1, 1235.2, 1235.3, and 

1235.5. Finally, in response to the 

commenter’s particular concern, the 

Departments note that DOJ does not 

make parole determinations, and DHS’s 

parole authority in 8 CFR 235.3(c) is 

both unaffected by this rule and outside 

the scope of the rulemaking generally. 

2.4. Reasonable Possibility as the 

Standard of Proof for Statutory 

Withholding of Removal and TortureRelated Fear Determinations for Aliens 

in Expedited Removal Proceedings and 

Stowaways 

Comment: One organization noted 

that the rule would require that those 

applying for withholding of removal to 

prove a ‘‘reasonable fear’’ of 

persecution, which is a higher standard 

than that required for asylum. The 

organization suggested that the drafters 

of the rule were targeting individuals 

who are ineligible for asylum and are 

thus applying for withholding of 

removal only. The organization noted 

that a large number of refugees may 

meet this criteria due to the 

administration’s ‘‘unsuccessful 

attempts’’ to impose additional asylum 

restrictions on individuals entering the 

United States outside a port of entry, as 

well as those arriving at the southern 

border after passing through third 

countries, if they did not apply for 

asylum and have their application(s) 

rejected in one of those countries. 

One commenter alleged that the rule 

would ‘‘greatly increase the burden’’ of 

individuals eligible only for 

withholding of removal or protection 

under CAT to succeed in initial 

interviews and present their cases 

before an immigration judge. The 

commenter noted that the rule would 

require asylum seekers who would be 

subject to a bar on asylum, including 

those subject to the ‘‘transit ban’’ found 

at 8 CFR 208.13(c)(4)(ii), to meet the 

heightened standard in order to have 

their cases heard before an immigration 

judge. The commenter alleged that the 

rule would ‘‘essentially eliminate’’ the 


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‘‘significant possibility’’ standard set 

forth by Congress in the INA and 

replace it with a ‘‘reasonable 

possibility’’ standard which is much 

harder for asylum seekers to meet. One 

organization claimed that, as a result, 

‘‘[m]eritorious asylum seekers will be 

screened out of the asylum system—a 

reality Congress expressly prohibited.’’ 

One organization claimed that 

Congress intended to set a low screening 

standard for the credible fear process in 

order to aid eligible asylum seekers and 

alleged that the NPRM fails to provide 

justification for raising this standard. 

The organization expressed concern that 

asylum officers lack the resources to 

‘‘jump’’ from applying the ‘‘significant 

possibility’’ standard to the ‘‘reasonable 

possibility’’ standard during a brief 

interview and also emphasized that 

noncitizens are more likely to obtain 

counsel in immigration court than in the 

initial screening process. One 

commenter stated that the rule, 

‘‘[u]nrealistically and unconscionably’’ 

heightens the standard individuals must 

meet upon arrival at the border and 

limits the protections for individuals 

who ‘‘have or would be tortured.’’ 

One organization emphasized that the 

‘‘reasonable possibility’’ standard is 

essentially the same burden of proof 

used when adjudicating an asylum 

application in a full immigration 

hearing. The organization claimed, 

however, that individuals seeking a fear 

determination will almost always have 

less evidence and less time to present 

their case than individuals in court. As 

a result, the organization alleged that 

the standard of proof in fear 

determinations should be lower than 

that used in immigration court hearings. 

Another organization criticized the 

Departments’ assertion that raising the 

screening bar is necessary to ‘‘align’’ the 

screening with the burden of proof in 

the merits proceeding for each type of 

relief. The organization disagreed, 

noting that asylum officers must already 

consider the merits burden of proof 

when screening for fear under existing 

law, as they must determine whether 

there is a ‘‘significant possibility’’ that 

an applicant ‘‘could be eligible’’ for each 

type of potential relief. The commenter 

asserted that this necessarily entailed a 

consideration of the burden of proof to 

establish eligibility for those forms of 

relief. As a result, the higher screening 

burden ‘‘serves only to require more and 

stronger evidence before the merits 

stage, and at a moment when applicants 

are least likely to be able to amass it.’’ 

One organization noted that many 

credible fear applicants are ‘‘profoundly 

traumatized, exhausted, terrified,’’ and 

unfamiliar with the legal process, and 

emphasized that these individuals will 

not have time to gather their thoughts or 

collect evidence to support ‘‘highly factspecific inquiries’’ at an interview 

screening. Another organization stated 

that asylum-seekers are screened in 

‘‘exceedingly challenging 

circumstances,’’ as well as in cursory 

interviews over the telephone. One 

organization specifically alleged that the 

Departments failed to consider how 

trauma affects the fear screening 

process, emphasizing research showing 

that trauma affects demeanor in ways 

that could ‘‘easily affect credibility’’ 

(nervousness, inability to make eye 

contact, etc.). At least one organization 

expressed particular concern for LGBTQ 

asylum seekers, and another 

organization emphasized that arriving 

applicants are unrepresented, unlikely 

to understand U.S. legal standards, and 

may be fearful or reluctant to discuss 

their persecution with authorities. 

One organization claimed the 

Departments have offered no evidence 

that the current procedure of using one 

standard to screen for any claim for 

relief complicates or delays the 

expedited removal process, alleging that 

this argument is not supported by 

government data. The organization 

noted that the number of individuals 

removed through expedited removal has 

increased fairly steadily over the years, 

stating that 43 percent of removals 

during 2018 were through the expedited 

removal process and that this 

proportion has not changed over the 

past decade. The organization also 

asserted there is no evidence that 

‘‘requiring asylum officers to evaluate 

varying claims relating to the same 

group of facts with three different 

screens would be simpler,’’ claiming 

this would actually make the 

determination more complicated. 

The organization also disagreed with 

the Departments’ suggestion that DOJ’s 

language in a previous rule ‘‘imposing 

the higher burden to a particular group 

in a previous rule supports their 

rationale’’ (citing 85 FR at 36270). The 

organization emphasized that, in the 

previous rule, DOJ applied a higher 

screening standard strictly to 

individuals ‘‘subject to streamlined 

administrative removal processes for 

aggravated felons under section 238(b) 

of the Act and for [people] subject to 

reinstatement of a previous removal 

order under section 241(a)(5) of the 

Act.’’ Regulation Concerning the 

Convention Against Torture, 64 FR 

8478, 8485 (Feb. 19, 1999). The 

organization claimed DOJ specifically 

distinguished that group as different 

from the ‘‘broad class’’ of arriving 

individuals subject to expedited 

removal, stating that the Departments 

offer no explanation for why this ‘‘broad 

class’’ can now be treated as a 

‘‘narrowly defined class whose members 

can raise only one claim.’’ The 

organization also accused the 

Departments of failing to explain what 

authority they used to add to and raise 

the statutory burden of proof in 

Congress’s ‘‘carefully described credible 

fear procedures.’’ INA 235(b), 8 U.S.C. 

1225(b). 

One organization noted that a U.S. 

district court vacated the ‘‘third country 

asylum ban regulations’’ on June 30, 

2020, see Capital Area Immigrants’ 

Rights Coalition v. Trump,— 

F.Supp.3d—, 2020 WL 3542481 (D.D.C. 

2020) and also noted that the Ninth 

Circuit upheld a previous injunction 

against the rule on July 6, 2020, see E. 

Bay Sanctuary Covenant v. Barr, 964 

F.3d 832 (9th Cir. 2020). The 

organization also referred to a separate 

rule that it claimed attempted to ban 

asylum for individuals entering the 

United States without inspection and 

noted that this rule was ‘‘blocked’’ by 

two separate district courts. See E. Bay 

Sanctuary Covenant v. Trump, 354 

F.Supp.3d 1094 (N.D. Cal 2018); O.A. v. 

Trump, 404 F. Supp. 3d 109 (D.D.C. 

2019). The organization noted that, 

based on these cases, it is unclear who 

would be eligible for withholding of 

removal or CAT only. The organization 

concluded by emphasizing that 

Congress created the credible fear 

standard as a safeguard due to ‘‘the life 

or death nature of asylum,’’ and 

described the proposed higher 

evidentiary standard as ‘‘cruelly 

irresponsible.’’ 

Response: In general, commenters 

appear to have confused multiple 

rulemakings, as well as the existing 

legal differences between and among 

asylum, statutory withholding of 

removal, and protection under the CAT 

regulations. The Departments decline to 

adopt the commenters’ positions to the 

extent they are based on inaccurate or 

confused understandings of the 

proposed rule and of the legal 

distinctions between and among 

asylum, statutory withholding of 

removal, and protection under the CAT 

regulations. 

Contrary to commenters’ claims, the 

change of the credible fear standards for 

statutory withholding and protection 

under the CAT regulations are unrelated 

to the Departments’ other asylumrelated regulatory efforts, which are 

outside the scope of this rule, and the 

current change is not intended to 

‘‘target’’ aliens that are not subject to 

those previous asylum regulations. See, 

e.g., Asylum Eligibility and Procedural 


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18Commenters raised concerns about analogizing 

the use of the ‘‘reasonable possibility’’ screening 

standard in 8 CFR 208.31 and 1208.31, which 

applies only to certain categories of aliens. 

However, the Departments referenced those 

regulations here and in the NPRM merely to show 

that the ‘‘reasonable possibility’’ standard has long 

existed in other contexts. See, e.g., 85 FR at 36270. 

Modifications, 84 FR 33829 (July 16, 

2019); Aliens Subject to a Bar on Entry 

Under Certain Presidential 

Proclamations; Procedures for 

Protection Claims, 83 FR 55934 (Nov. 9, 

2018). Further, the change in standards 

has no bearing on how any alleged 

trauma is assessed during the screening 

process by either asylum officers or 

immigration judges. Adjudicators in 

both Departments have conducted these 

assessments for many years and are 

trained and well-versed in assessing the 

credibility of applicants, including 

accounting for any alleged trauma that 

may be relevant. 

As discussed in the NPRM, Congress 

did not require the same eligibility 

standards for asylum, statutory 

withholding of removal, and protection 

under the CAT in the ‘‘credible fear’’ 

screening process. See 85 FR at 36268– 

71. In fact, the INA does not include any 

references to statutory withholding of 

removal or protection under the CAT 

regulations when explaining the 

‘‘credible fear’’ screening process. See 

INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); 

see also The Foreign Affairs Reform and 

Restructuring Act of 1998 (‘‘FARRA’’), 

Public Law 105–277, 112 Stat. 2681– 

822. 

Instead, the Departments have the 

authority to establish procedures and 

standards for statutory withholding of 

removal and protection under the CAT. 

See INA 103(a)(1), 8 U.S.C. 1103(a)(1) 

(‘‘The Secretary of Homeland Security 

shall be charged with the administration 

and enforcement of [the INA] and all 

other laws relating to the immigration 

and naturalization of aliens * * *.’’); 

INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 

FARRA, Public Law 105–277, sec. 

2242(b), 112 Stat. at 2681–822 

(providing that ‘‘the heads of the 

appropriate agencies shall prescribe 

regulations to implement the obligations 

of the United States under Article 3’’ of 

CAT). 

Using this authority, the Departments 

believe that, rather than being 

‘‘unrealistic[ ]’’ or ‘‘unconscionabl[e]’’ as 

commenters claim, raising the standards 

of proof to a ‘‘reasonable possibility’’ 

during screening for statutory 

withholding of removal and protection 

under the CAT regulations better aligns 

the initial screening standards of proof 

with the higher standards used to 

determine whether aliens are in fact 

eligible for these forms of protection 

when applying before an immigration 

judge. Further, as explained in the 

NPRM, this higher standard will also 

serve to screen out more cases that are 

unlikely to be meritorious at a full 

hearing, which will allow the 

overburdened immigration system to 

focus on cases more likely to be granted. 

And, contrary to commenters’ claims, 

the NPRM did not claim that the use of 

a single ‘‘significant possibility’’ 

standard complicates or delays the 

expedited removal process. 

The Departments recognize that a 

higher screening standard may make it 

more difficult to receive a positive fear 

determination. However, the 

Departments disagree with commenters 

that raising the screening standard for 

statutory withholding of removal and 

CAT protection will require aliens to 

submit significantly stronger 

documentary evidence. At the credible 

fear interview stage, these claims rest 

largely on the applicant’s testimony, 

which does not require any additional 

evidence-gathering on the applicant’s 

part. See, e.g., 8 CFR 208.30(d), 

208.30(e)(2) (describing the interview 

and explicitly requiring the asylum 

officer to make a credible fear 

determination after ‘‘taking into account 

the credibility of the statements made 

by the alien in support of the alien’s 

claim’’). 

In addition, the Departments have 

long used the ‘‘reasonable possibility’’ 

standard for reasonable fear 

determinations made under 8 CFR 

208.31 and 8 CFR 1208.31, which cover 

certain classes of aliens who are 

ineligible for asylum but who are 

eligible for statutory withholding of 

removal and protection under the CAT 

regulations. See 8 CFR 208.31(a), 

208.31(c), 1208.31(a), 1208.31(c).18 By 

changing the standard in credible fear 

interviews for statutory withholding and 

CAT protection, asylum officers will 

process such claims under the same 

standard, providing additional 

consistency. Moreover, asylum officers 

receive significant training and the 

Departments have no concerns that they 

will be able to properly apply the 

standards set forth in this rule. See 8 

CFR 208.1(b) (ensuring training of 

asylum officers). 

In short, it is both illogical and 

inefficient to screen for three potential 

forms of protection under the same 

standard when two of those forms have 

an ultimately higher burden of proof. 

The Departments’ rule harmonizes the 

screening of the various applications 

consistent with their respective ultimate 

burdens and ensures that nonmeritorious claims are more quickly 

weeded out, allowing the Departments 

to focus more of their resources on 

claims likely to have merit. 

2.4.1. Specific Concerns With 

‘‘Significant Possibility’’ Standard 

Comment: One commenter claimed 

the rule would make it much harder for 

asylum seekers subject to expedited 

removal to have their asylum requests 

‘‘fully considered’’ by an immigration 

judge. The commenter noted that 

Congress intentionally set a low 

standard—‘‘significant possibility’’—for 

the credible fear interview in order to 

prevent legitimate refugees from being 

deported; one organization noted that 

this standard was designed to ‘‘filter out 

economic migrants from asylum 

seekers.’’ Commenters argued that the 

rule’s redefinition of the ‘‘significant 

possibility’’ standard as ‘‘a substantial 

and realistic possibility of succeeding’’ 

contradicts the language Congress set 

forth in section 235(b)(1)(B)(v) of the 

Act, 8 U.S.C. 1225(b)(1)(B)(v) and is 

thus ‘‘ultra vires.’’ 

One organization argued that the 

legislative history confirms Congress’s 

intent to protect ‘‘bona fide’’ asylum 

seekers. The organization cited the 

Judiciary Committee report to the House 

version of the bill that stated that 

‘‘[u]nder this system, there should be no 

danger that an alien with a genuine 

asylum claim will be returned to 

persecution’’ and that ‘‘the asylum 

officer should attempt to elicit all facts 

relevant to the applicant’s claim.’’ The 

organization included a statement from 

Senator Orrin Hatch noting that ‘‘[t]he 

conference report struck a compromise’’ 

and the standard adopted was 

‘‘intended to be a low screening 

standard for admission into the usual 

full asylum process.’’ 

Finally, one organization stated that 

there is no ‘‘sliding scale for legal 

standards based on the volume of 

cases,’’ emphasizing that national 

security is irrelevant to the appropriate 

legal standard for credible fear. The 

organization claimed that raising the 

standard in order to ‘‘better secure the 

homeland’’ contradicts the clear 

meaning of the statute and is ‘‘ultra 

vires.’’ 

Response: Again, commenters appear 

to have confused the existing legal 

differences between and among asylum, 

statutory withholding of removal, and 

CAT protection, and the Department 

declines to adopt the commenters’ 

positions to the extent they are based on 

inaccuracies or misstatements of law. 

The rule does not change the 

‘‘significant possibility’’ standard in 

credible fear interviews for asylum 

claims, which is set by statute. See INA 


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19The Departments note that the possibility of 

internal relocation is not a mandatory bar to 

asylum. Rather, it is part of the underlying asylum 

eligibility determination and could rebut a 

presumption of a well-founded fear after a finding 

of past persecution, or be a reason to find that the 

applicant does not have a well-founded fear of 

persecution. As it is still a consideration during the 

credible fear screening, the Departments address the 

comment in the response below. 

235(b)(1)(B)(v), 8 U.S.C. 

1225(b)(1)(B)(v). As a result, asylum 

claims will continue to be processed 

under the ‘‘significant possibility’’ 

standard in credible fear interviews. 

Instead, the rule only changes the 

standard to a ‘‘reasonable possibility’’ 

for statutory withholding of removal 

and CAT protection claims. Congress 

did not address the standards for these 

claims in credible fear interviews and 

instead explicitly focused on asylum 

claims. See generally INA 235(b), 8 

U.S.C. 1225(b)(1)(B) (describing asylum 

interviews). Therefore, the Departments 

are within their authority to change 

these standards, as the use of a 

‘‘reasonable possibility’’ standard does 

not contradict the ‘‘significant 

possibility’’ language in the statute, 

which only applies to asylum claims. 

See generally INA 103(a)(1), 8 U.S.C. 

1103(a)(1) (‘‘The Secretary of Homeland 

Security shall be charged with the 

administration and enforcement of this 

chapter and all other laws relating to the 

immigration and naturalization of 

aliens... .’’); INA 103(g)(2), 8 U.S.C. 

1103(g)(2) (‘‘The Attorney General shall 

establish such regulations . . . as the 

Attorney General determines to be 

necessary for carrying out this 

section.’’). 

Moreover, in response to commenters’ 

concerns about the ‘‘significant 

possibility’’ asylum standard in credible 

fear proceedings, the Departments note 

that this change does not raise the 

standard; instead, it merely codifies 

existing policy and practice in order to 

provide greater clarity and transparency 

to adjudicators and affected parties. 

USCIS already uses the ‘‘significant 

possibility’’ definition in screening 

whether an asylum-seeker has 

established a credible fear of 

persecution. See Memorandum from 

John Lafferty, Chief, Asylum Div., U.S. 

Citizenship and Immigration Servs., 

Release of Updated Asylum Division 

Officer Training Course (ADOTC) 

Lesson Plan, Credible Fear of 

Persecution and Torture Determinations 

2 (Feb. 28, 2014). 

This definition is also consistent with 

Congress’s intent to create ‘‘a low 

screening standard for admission into 

the usual full asylum process,’’ 142 

Cong. Rec. S11491 (daily ed. Sept. 27, 

1996) (statement of Senate Judiciary 

Committee Chairman Orrin Hatch), and 

with the statutory text. See INA 

235(b)(1)(B)(v), 8 U.S.C. 

1225(b)(1)(B)(v). For example, the 

‘‘significant possibility’’ standard does 

not require a showing that it is more 

likely than not that the applicant can 

meet their asylum burden in 

immigration court. Instead, the standard 

merely requires the applicant establish 

‘‘a substantial and realistic possibility of 

succeeding’’ on their asylum claim, 

which in turn requires a showing of as 

little as a 10 percent chance of 

persecution on account of a protected 

ground. See I.N.S. v. Cardoza-Fonseca, 

480 U.S. 421, 431–32 (1987). This 

additional language will help 

adjudicators and affected parties to 

ensure that the proper screening 

standard is used in the credible fear 

process. 

2.5. Proposed Amendments to the 

Credible Fear Screening Process 

Comment: One organization claimed 

that the rule would essentially combine 

the credible fear interview with the 

merits hearing and require an asylum 

officer to do both simultaneously. The 

organization contended that this would 

leave applicants who turn themselves in 

to CBP with no time to prepare and 

‘‘essentially no chance of success.’’ The 

organization emphasized that 

individuals arriving at the border are 

often ‘‘exhausted, stressed out, or ill,’’ 

noting the high probability that an 

individual will be physically, 

emotionally, or mentally unfit for an 

interview that ‘‘may determine whether 

he and his family lives or dies.’’ The 

organization claimed this situation has 

been aggravated by the COVID–19 

pandemic. 

One organization stated that some 

individuals fleeing persecution and 

torture ‘‘bypass CBP’’ because they lack 

knowledge about asylum or believe they 

will be treated unfairly. The 

organization noted that some of these 

individuals prepare asylum applications 

on their own (either prior or subsequent 

to apprehension by ICE) and 

emphasized that these cases, which fall 

‘‘outside the established procedures,’’ 

are far more difficult to regulate. The 

organization contended that, if the 

credible fear and merits interviews are 

combined, poor asylum or CAT 

protection seekers will be incentivized 

to evade CBP in order to try and obtain 

help preparing an application. The 

organization emphasized that if the 

Departments replace the existing 

procedure with one that is ‘‘essentially 

impossible for many deserving people to 

use,’’ their jobs will become more 

difficult and their efforts less efficient. 

One organization expressed concern 

regarding the specific language in 

proposed 8 CFR 208.30(d)(1), claiming 

that it ‘‘does not pass either simple 

humanity or due process.’’ The 

organization conceded that the language 

of existing 8 CFR 208.30(d)(1) is 

identical, but claimed this ‘‘does not 

excuse the proposed provision.’’ 

Instead, the organization claimed the 

language should read as follows: ‘‘[i]f 

the [asylum] officer conducting the 

interview determines that the alien is 

unable to participate effectively in the 

interview because of illness, fatigue, or 

other impediments, the officer shall 

reschedule the interview.’’ 

One organization also emphasized 

that the rule would require asylum 

officers to consider bars to asylum, 

including the internal relocation bar,19

during initial fear screenings. The 

organization alleged that the rule seems 

to build off the ‘‘Asylum and Internal 

Relocation Guidance’’ issued by USCIS, 

which the organization claimed was 

posted last summer ‘‘without going 

through an NPRM.’’ Another 

organization claimed that this portion of 

the rule is ‘‘contrary to law and existing 

practice,’’ noting that section 235(b) of 

the Act, 8 U.S.C. 1225(b), requires 

asylum officers to determine whether 

there is a ‘‘significant possibility’’ that 

an applicant could establish eligibility 

for asylum in some future proceeding. 

One organization emphasized that most 

credible fear applicants are 

unrepresented and have difficulty 

understanding the complex internal 

relocation analysis, noting that asylum 

seekers would likely need to include 

detailed country conditions materials in 

support of their claims. In addition, the 

organization claimed that adding ‘‘an 

additional research burden’’ on asylum 

officers would be inefficient. 

One organization noted that the rule 

would require asylum officers to 

determine whether an applicant is 

subject to one of the mandatory bars 

under section 208(a)(2)(B)–(D) of the 

Act, 8 U.S.C. 1158(a)(2)(B)–(D), and, if 

so, whether the bar at issue is also a bar 

to statutory withholding of removal and 

withholding of removal under CAT. The 

organization emphasized that each of 

the mandatory bars involves intensive 

legal analysis and claimed that requiring 

asylum officers to conduct this analysis 

during a screening interview would 

result in ‘‘the return of many asylum 

seekers to harm’s way.’’ 

Another organization claimed this 

portion of the rule is ‘‘unworkable,’’ 

noting that the mandatory bars are 

heavily litigated and often apply 

differently from circuit to circuit. The 

organization alleged that the new 


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credible-fear analysis would require 

asylum officers to exceed their statutory 

authority and would violate due process 

by mandating fact-finding in a 

procedure that does not provide 

applicants with notice or the 

opportunity to respond with evidence. 

One organization claimed that 

‘‘countless asylum-seekers could be 

erroneously knocked out of the process 

based on hasty decisions, 

misunderstandings, and limited 

information,’’ noting that the existing 

rule ‘‘errs in favor of review.’’ 

The organization also expressed 

concern that the rule would require 

asylum officers to treat an individual’s 

silence as a reason to deny an 

immigration judge’s review of a negative 

credible fear interview. The 

organization emphasized that many 

asylum seekers do not understand what 

is happening when they receive a 

negative credible fear determination 

from an asylum officer and do not know 

what it means to seek review by an 

immigration judge; as a result, many 

asylum seekers ‘‘will simply not answer 

the question.’’ The organization noted 

that many of these individuals are still 

‘‘tired and traumatized’’ from their 

journey, and some have been separated 

from their families. 

The organization noted that, 

historically, asylum officers have been 

required to request immigration judge 

review on behalf of individuals who 

remain silent; however, the organization 

alleged that the rule would ‘‘reverse 

existing policy’’ and require officers to 

indicate that unresponsive individuals 

do not want review. The organization 

noted that the NPRM does not include 

data on how many asylum seekers 

succeed in their credible fear claims 

before an immigration judge without 

specifically making a request to an 

asylum officer; nor does the rule contain 

data on how many immigration judge 

reviews are ‘‘expeditiously’’ resolved 

after the judge explains the asylum 

seeker’s rights and the individual 

chooses not to pursue review. The 

organization claimed that its concerns 

are enhanced by the decision to allow 

CBP officers, rather than fully trained 

USCIS asylum officers, to conduct 

credible fear interviews. One 

organization emphasized that it is 

unreasonable to assume that asylum 

seekers who decline to expressly request 

further review are declining review by 

an independent agency. The 

organization stated that ‘‘[a]bsent a clear 

waiver of the opportunity for review by 

an independent agency, it is reasonable 

to assume that asylum seekers arriving 

at our borders wish to pursue all 

available avenues of relief.’’ 

One organization noted a statement 

from Senator Patrick Leahy, which 

introduced a newspaper article that 

expressed concern that an unenacted 

early version of IIRIRA ‘‘gives virtually 

final authority to immigration officers at 

300 ports of entry to this country.’’ 142 

Cong. Rec. S4461 (daily ed. May 1, 

1996) (statement of Senator Patrick 

Leahy). The organization also alleged 

that ‘‘[g]iving one agency unfettered 

power to decide whether an asylum 

seeker ever has a day in court goes 

against the intent of Congress.’’ 

Response: In general, most of the 

commenters’ concerns are speculative 

and fail to account for the fact-specific 

and case-by-case nature of the 

interviews and reviews in question. 

Moreover, their concerns tacitly 

question the competence, integrity, and 

professionalism of the adjudicators 

conducting interviews and reviews— 

professionals who are well-trained and 

experienced in applying the relevant 

law in the context of these screenings 

and reviews. 

The suggestion that aliens genuinely 

seeking refuge regularly evade officials 

of the very government from whom they 

seek refuge is unsupported by evidence. 

Nothing in the rule restricts or prohibits 

any organization from providing 

assistance to any alien; instead, the 

rule’s focus is on assisting adjudicators 

with clearer guidance and more efficient 

processes. 

Additionally, many of the 

commenters failed to acknowledge the 

multiple layers of review inherent in the 

screening process, which reduces the 

likelihood of any errors related to 

consideration of the facts of the claim or 

application of relevant law. See 

Thuraissigiam, 140 S.Ct. at 1965–66 

(‘‘An alien subject to expedited removal 

thus has an opportunity at three levels 

to obtain an asylum hearing, and the 

applicant will obtain one unless the 

asylum officer, a supervisor, and an 

immigration judge all find that the 

applicant has not asserted a credible 

fear.’’). To the extent that commenters 

mischaracterized the rule, provided 

comments that are speculative or 

unfounded, suggested that the 

Departments should not follow the law, 

or ignored relevant procedural 

protections that already address their 

concerns, the Departments decline to 

adopt such comments. 

The Departments disagree that this 

rule combines the credible fear 

interview with a full hearing on an 

asylum application, or that the credible 

fear interview represents the ‘‘final’’ 

adjudication of an asylum application. 

This rule maintains the same 

‘‘significant possibility’’ standard for 

asylum officers in conducting a credible 

fear interview with respect to screening 

the alien for eligibility for asylum, and 

any alien who is found to have a 

credible fear is referred to an 

immigration judge for asylum-andwithholding-only proceedings for 

consideration of the relief application. 

See 8 CFR 208.30(g). This rule does not 

change the fundamental structure of the 

credible fear process. Instead, during the 

credible fear interview, the rule 

additionally requires the asylum officer 

to consider internal relocation and 

relevant asylum bars as part of his or her 

determination, and separately to treat 

the alien’s failure to request a review of 

a negative fear determination as 

declining the request. 

Regarding commenters’ concerns 

about unrepresented aliens having 

difficulty with the internal relocation 

analysis in the credible fear process, the 

Departments note that aliens are able to 

consult with a person of their choosing 

prior to their credible fear interview and 

have that person present during the 

interview. See 8 CFR 208.30(d)(4). 

Considering internal relocation in the 

credible fear screening context is 

consistent with existing policy and 

practice. See 85 FR 36272. Moreover, 

there is no reason to believe that an 

alien, in the course of providing 

testimony regarding the facts of his or 

her claim, cannot also provide 

testimony about his or her ability to 

internally relocate; in fact, in many 

cases, an alien’s relocation is already 

part of the narrative provided in support 

of the alien’s overall claim. In addition, 

the Departments disagree that requiring 

asylum officers to consider internal 

relocation is inefficient. To the contrary, 

as current practice requires such issues 

to be adjudicated in section 240 removal 

proceedings, screening out cases subject 

to internal relocation before requiring a 

lengthier proceeding before an 

immigration judge is inherently more 

efficient. It also has a further salutary 

effect of increasing the ability of 

adjudicators to address meritorious 

claims in a more timely manner. Lastly, 

contrary to commenters’ assertions, this 

rule is unrelated to USCIS guidance on 

internal relocation, and any issues 

relating to such guidance are outside the 

scope of this rule. 

Regarding commenters’ concerns 

about requiring asylum officers to 

determine whether certain asylum bars 

apply during the credible fear interview, 

the Departments note that asylum 

officers are well trained in asylum law 

and are more than capable of 

determining whether long-standing 

statutory bars apply, especially in the 

credible fear screening context. INA 


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235(b)(1)(E), 8 U.S.C. 1235(b)(1)(E) 

(defining an asylum officer as one who 

‘‘has had professional training in 

country conditions, asylum law, and 

interview techniques comparable to that 

provided to full-time adjudicators of 

applications under [INA 208, 8 U.S.C. 

1158], and . . . is supervised by an 

officer who [has had similar training] 

and has had substantial experience 

adjudicating asylum applications.’’); see 

generally 8 CFR 208.1(b) (covering 

training of asylum officers). 

Moreover, the statute requires asylum 

officers to determine whether ‘‘the alien 

could establish eligibility for asylum 

under section 1158 of this title,’’ which 

would by extension include the 

application of the bars listed in section 

1158 that are a part of this rule. See INA 

235(b)(1)(B)(v), 8 U.S.C. 

1225(b)(1)(B)(v). Further, asylum 

officers already assess whether certain 

bars may apply to applications in the 

credible fear context—they simply do 

not apply them under current 

regulations. See Government 

Accountability Office, Actions Needed 

to Strengthen USCIS’s Oversight and 

Data Quality of Credible and 

Reasonable Fear Screenings at 10 (Feb. 

2020), https://www.gao.gov/assets/710/ 

704732.pdf (‘‘In screening noncitizens 

for credible or reasonable fear . . . . [a] 

USCIS asylum officer is to determine if 

the individual has any bars to asylum or 

withholding of removal that will be 

pertinent if the individual is referred to 

immigration court for full removal 

proceedings.’’); U.S. Citizenship and 

Immigr. Serv., Lesson Plan on Credible 

Fear of Persecution and Torture 

Determinations at 31 (2019), https://

fingfx.thomsonreuters.com/gfx/mkt/11/ 

10239/10146/2019%20training%20

document%20for%20asylum%20

screenings.pdf (‘‘Even though the bars to 

asylum do not apply to the credible fear 

determination, the interviewing officer 

must elicit and make note of all 

information relevant to whether a bar to 

asylum or withholding applies or not.’’). 

Lastly, responding to commenters’ 

concerns that such determinations 

would be ‘‘final,’’ this rule does not 

change the existing process allowing for 

an immigration judge to review any 

negative fear determination, which 

would include any bar-related negative 

fear determination. 8 CFR 208.30(g); see 

also Thuraissigiam, 140 S.Ct. at 1965– 

66 (‘‘An alien subject to expedited 

removal . . . has an opportunity at three 

levels to obtain an asylum hearing, and 

the applicant will obtain one unless the 

asylum officer, a supervisor, and an 

immigration judge all find that the 

applicant has not asserted a credible 

fear.’’). 

Regarding commenters’ concerns that 

aliens do not understand the credible 

fear process and, therefore, will refuse 

to indicate whether they want an 

immigration judge to review their 

negative fear finding, the Departments 

first note that if an alien requests 

asylum or expresses a fear of return, the 

alien is given an M–444 notice, 

Information about Credible Fear 

Interview, which explains the credible 

fear process and the right to an attorney 

at no cost to the U.S. Government. It 

would be unusual for an alien who has 

already undergone an interview, relayed 

a claim of fear, answered questions from 

an asylum officer about his or her claim, 

and continued to maintain that he or 

she has a genuine fear of being returned 

to his or her country of nationality to 

then—at the next step—be unaware of 

the nature of the process when asked 

whether he or she wishes to have 

someone else review the claim. The 

Departments further note that 

regulations require the asylum officer to 

ask aliens whether they wish to have an 

immigration judge review the negative 

credible fear decision. See 8 CFR 

208.30(g) (requiring the asylum officer 

to ‘‘provide the alien with a written 

notice of decision and inquire whether 

the alien wishes to have an immigration 

judge review the negative decision, 

using Form I–869’’). And the relevant 

form states, ‘‘You may request that an 

Immigration Judge review this 

decision.’’ See Form I–869, Record of 

Negative Credible Fear Finding and 

Request for Review by Immigration 

Judge. 

These procedures provide explicit 

informational protections to individuals 

in the credible fear process, and treating 

refusals as affirmative requests only 

serves to create unnecessary and undue 

burdens on the immigration courts. 

Although the Departments do not 

maintain data on how many individuals 

refuse to request immigration judge 

review of a negative fear finding, the 

Departments believe it is reasonable to 

require an individual to answer 

affirmatively when being asked by an 

asylum officer if the individual wishes 

to have their negative fear finding 

reviewed. 

In response to a commenter’s concern 

about 8 CFR 208.30(d)(1), which allows 

an asylum officer to reschedule a 

credible fear interview under certain 

circumstances, the Departments note 

that this rule does not change any 

language in that subparagraph and, 

therefore, any comments regarding that 

subparagraph are outside the scope of 

this rule. 

3. Form I–589, Application for Asylum 

and for Withholding of Removal, Filing 

Requirements 

3.1. Frivolous Applications 

3.1.1. Allowing Asylum Officers To 

Make Frivolousness Findings 

Comment: Commenters expressed a 

range of concerns regarding the 

proposed changes to allow DHS asylum 

officers to make frivolousness findings 

and deny applications or refer 

applications to an immigration judge on 

that basis. 85 FR at 36274–75. 

Commenters expressed concerns 

about asylum officers’ training and 

qualifications to make frivolousness 

findings. For example, at least one 

commenter noted that these DHS 

officers are not required to earn law 

degrees. Another organization disagreed 

with the NPRM’s assertion that asylum 

officers are qualified to make 

frivolousness determinations because of 

their current experience making 

credibility determinations, emphasizing 

that ‘‘credibility and frivolous 

determinations differ significantly.’’ At 

least one organization noted that the 

applicant has the burden of proof in a 

credibility determination while the 

government bears the burden of proof in 

a frivolousness determination. 

At least one organization emphasized 

that this authority is currently only 

vested in immigration judges and the 

BIA, and commenters expressed 

concern that allowing asylum officers to 

make frivolousness findings improperly 

changes the role of asylum officers in 

the asylum system. For example, one 

organization claimed that allowing 

asylum officers to make frivolousness 

determinations ‘‘improperly changes 

their role from considering 

humanitarian relief, to being an 

enforcement agent.’’ Commenters noted 

a law professor’s statement that 

‘‘allowing asylum officers to deny 

applications conflicts with a mandate 

that those asylum screenings not be 

adversarial.’’ Suzanne Monyak, Planned 

Asylum Overhaul Threatens Migrants’ 

Due Process, LAW 360 (June 12, 2020), 

https://www.law360.com/access-tojustice/articles/1282494/plannedasylum-overhaul-threatens-migrantsdue-process (quoting Professor Lenni B. 

Benson). 

Commenters suggested that the rule 

would not require USCIS to allow 

asylum applicants to address 

inconsistencies in their claims, alleging 

that individuals appearing in nonadversarial proceedings before a DHS 

officer would not be granted important 

procedural protections. One 

organization cited both the U.S. Court of 


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20Although not strictly applicable to asylum 

officers who adjudicate asylum applications under 

section 208 of the Act, the Departments note that 

the definition of an asylum officer in other contexts 

as one who ‘‘has had professional training in 

country conditions, asylum law, and interview 

techniques comparable to that provided to full-time 

adjudicators of applications’’ under section 208 and 

is supervised by someone who has had ‘‘substantial 

experience’’ adjudication asylum applications 

further supports the determination that asylum 

officers are well-qualified to make frivolousness 

determinations. INA 235(b)(1)(E) (8 U.S.C. 

1225(b)(1)(E)). 

Appeals for the Second Circuit and the 

BIA to support its claim that a 

comprehensive opportunity to be heard 

makes sense in the frivolousness 

context, noting that immigration 

enforcement is not limited to initiating 

and conducting prompt proceedings 

that lead to removals at any cost. Liu v. 

U.S. Dep’t of Justice., 455 F.3d 106, 114 

n.3 (2d Cir. 2006); Matter of S–M–J–, 21 

I&N Dec. 722, 727, 743 (BIA 1997). 

One organization stated that, although 

immigration judges would have de novo 

review of findings by asylum officers, an 

adverse finding is ‘‘always part of the 

DHS toolbox’’ in immigration court and 

is considered by immigration judges. 

Response: As stated in the proposed 

rule, the Departments find that allowing 

asylum officers to make frivolousness 

findings in the manner set out in the 

proposed rule and adopted as final in 

this rule will provide many benefits to 

the asylum process, including 

‘‘strengthen[ing] USCIS’s ability to root 

out frivolous applications more 

efficiently, deter[ing] frivolous filings, 

and ultimately reduc[][ing] the number 

of frivolous applications in the asylum 

system.’’ 85 FR at 36275. 

The Departments disagree with 

commenters’ allegations that asylum 

officers are not qualified or trained to 

make frivolousness findings. Instead, all 

asylum officers receive significant 

specialized ‘‘training in international 

human rights law, nonadversarial 

interview techniques, and other relevant 

national and international refugee laws 

and principles’’ and also receive 

‘‘information concerning the 

persecution of persons in other 

countries on account of race, religion, 

nationality, membership in a particular 

social group, or political opinion, 

torture of persons in other countries, 

and other information relevant to 

asylum determinations.’’ 8 CFR 

208.1(b). Moreover, there is no doubt 

that asylum officers are qualified to 

make significant determinations 

regarding asylum claims, including the 

most important determination—an 

adjudication on the merits regarding 

whether or not an alien has 

demonstrated eligibility for asylum. See, 

e.g., 8 CFR 208.14(c) (‘‘If the asylum 

officer does not grant asylum to an 

applicant after an interview . . . the 

asylum officer shall deny, refer, or 

dismiss the application... .’’). Given 

asylum officers’ authority and 

qualifications to make determinations 

on the underlying merits of asylum 

applications, the Departments find that 

they are clearly qualified to make 

subsidiary determinations such as 

frivolousness findings.20

Commenters are incorrect that the 

Departments analogized credibility 

determinations to frivolousness 

findings. See 85 FR at 36275. Instead, 

the Departments discussed asylum 

officers’ credibility findings as 

background regarding the mechanisms 

currently used by asylum officers to 

approach questions similar to those 

involving frivolousness. Id. 

Nevertheless, the Departments disagree 

with commenters’ implication that 

asylum officers should not be permitted 

to make frivolousness findings because 

the government bears the burden of 

proof. Not only does the statute not 

assign a burden of proof to the 

Departments regarding frivolousness 

findings, INA 208(d)(6), 8 U.S.C. 

1158(d)(6), but for those not in lawful 

status, asylum officers’ frivolousness 

findings are subject to de novo review 

by an immigration judge, and must 

simply be sufficiently supported. 

Commenters are further incorrect that 

allowing asylum officers to make 

frivolousness findings improperly 

converts the USCIS affirmative 

application process from nonadversarial to adversarial. The purpose 

of the non-adversarial interview is to 

‘‘elicit all relevant and useful 

information bearing on the applicant’s 

eligibility for asylum.’’ 8 CFR 208.9(b) 

(emphasis added). There is nothing 

inherently contradictory—or 

adversarial—in eliciting all relevant and 

useful information regarding an 

applicant’s eligibility for asylum and 

then determining, based on that 

information, that the applicant is 

ineligible for asylum because the 

applicant knowingly filed a frivolous 

application. Moreover, a nonadversarial 

process does not mean that the asylum 

officer simply has to accept all claims 

made by an alien as true; if that were the 

case, an asylum officer could never refer 

an application based on an adverse 

credibility determination. Further, 

equating the nonadversarial asylum 

interview process with a prohibition on 

finding an application to be frivolous is 

in tension with statutory provisions 

allowing adjudicators of asylum 

applications to consider, inter alia, 

‘‘candor’’ and ‘‘falsehoods’’ in assessing 

an applicant’s credibility. INA 

208(b)(1)(B)(iii), 8 U.S.C. 

1158(b)(1)(B)(iii). 

In short, the Departments find that 

allowing asylum officers to make 

frivolousness findings does not conflict 

with the requirement that asylum 

officers conduct asylum interviews ‘‘in 

a nonadversarial manner.’’ 8 CFR 

208.9(b). Instead, asylum officers will 

consider questions of frivolousness in 

the same manner that they consider 

other questions of the applicant’s 

eligibility for asylum, such as whether 

the applicant has suffered past 

persecution or whether the applicant 

fears harm on account of a protected 

ground. Just as interview questions 

about these eligibility factors are 

appropriate topics for asylum officers in 

the current interview process, questions 

and consideration of frivolousness are 

similarly appropriate. 

Regarding commenters’ concerns 

about procedural protections for aliens 

who appear before an asylum officer for 

an interview, the Departments 

emphasize that both the proposed rule 

and this final rule prohibit a 

frivolousness finding unless the alien 

has been provided the notice required 

by section 208(d)(4)(A) of the Act, 8 

U.S.C. 1158(d)(4)(A) of the 

consequences under section 208(d)(6) of 

the Act, 8 U.S.C. 1158(d)(6), of filing a 

frivolous asylum application. See 8 CFR 

208.20(d), 1208.20(d). This requirement 

complies with the Act, which does not 

require any further warning or colloquy 

in advance of a frivolousness finding. 

Accordingly, while commenters are 

correct that the rule does not require 

USCIS to allow asylum applicants to 

address inconsistencies prior to a 

frivolousness finding or follow any 

other delineated procedures, the 

Departments reiterate that, as stated in 

the proposed rule, the procedural 

requirements provided by the rule for a 

frivolousness finding comply with the 

Act’s requirements. 85 FR at 36276–77. 

Further, the Departments emphasize 

that, for aliens who lack legal status and 

who are referred to an immigration 

judge because the asylum officer did not 

grant asylum to the alien, see 8 CFR 

208.14(c)(1), USCIS asylum officers’ 

frivolousness findings are not given 

effect and are subject to an immigration 

judge’s de novo review. 8 CFR 

208.20(b). Accordingly, for most, if not 

all, aliens who may be subject to a 

frivolousness finding by an asylum 

officer, this further review is effectively 

the procedural protection called for by 

commenters, as the alien will be on 


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notice regarding the possible 

frivolousness finding and should be 

prepared to and expect to explain the 

issues surrounding it. 

The Departments agree with 

commenters that DHS trial attorneys in 

immigration court may provide 

arguments regarding frivolousness in 

any appropriate case. However, as also 

stated in the proposed rule, the 

possibility of frivolousness findings in 

immigration court alone has been 

insufficient to deter frivolous filings 

consistent with the congressional intent 

behind section 208(d)(6) of the Act, 8 

U.S.C. 1158(d)(6). 85 FR at 36275. 

Allowing asylum officers to also 

consider and make determinations 

regarding whether an affirmative asylum 

applicant’s application is frivolous 

provides efficiencies not available from 

consideration of questions of 

frivolousness by an immigration judge 

alone, including providing immigration 

judges with a more robust and 

developed written record regarding 

frivolousness. Id. 

Finally, to the extent that commenters 

suggested the proposed changes should 

not be implemented because they would 

make it easier to detect asylum fraud 

and would harm aliens who submit 

fraudulent asylum applications, the 

Departments do not find such 

suggestions compelling enough to 

warrant deleting such changes. See 

Angov v. Lynch, 788 F.3d 893, 901, 902 

(9th Cir. 2015) (noting ‘‘an unfortunate 

reality that makes immigration cases so 

different from all other American 

adjudications: Fraud, forgery and 

fabrication are so common—and so 

difficult to prove—that they are 

routinely tolerated’’). Cases involving 

asylum fraud are ‘‘distressingly 

common,’’ id. at 902, and the 

Departments are committed to ensuring 

the integrity of immigration proceedings 

by using all available statutory tools to 

root out such fraud. 

3.1.2. Changes to the Definition of 

‘‘Frivolous’’ 

Comment: Commenters expressed a 

range of concerns with the rule’s 

changes to the definition of ‘‘frivolous’’ 

and the expanded scope of applications 

that could qualify as such. One 

commenter claimed the rule would 

make it easier for immigration judges 

and asylum officers to ‘‘throw out’’ 

asylum requests as frivolous. 

At least one commenter noted that, 

prior to the enactment of section 

208(d)(6) of the Act 8 U.S.C. 1158(d)(6), 

a frivolous asylum application was 

defined in the employment context as 

‘‘manifestly unfounded or abusive’’ and 

‘‘patently without substance.’’ 85 FR at 

36274. The commenter concluded that 

lowering this standard is ‘‘ultra vires 

and an abuse of discretion.’’ 

Commenters noted that, to be 

considered frivolous, an application 

must have been ‘‘knowingly made,’’ and 

the individual must have been given 

notice at the time of filing pursuant to 

section 208(d)(4)(A) of the Act 8 U.S.C. 

1158(d)(4)(A). Commenters expressed 

concern that the NPRM seeks to redefine 

the term ‘‘knowingly’’ to include 

‘‘willful blindness’’ toward 

frivolousness. At least one organization 

expressed concern that the NPRM relies 

on Global-Tech Appliances, Inc. v. SEB 

S.A., 563 U.S. 754, 769 (2011) to 

support its definition for ‘‘knowingly,’’ 

emphasizing that this case ‘‘involved 

sophisticated litigants represented by 

attorneys familiar with the intricacies of 

American patent law’’ and contending 

that it would be inappropriate to hold 

asylum seekers to this standard. 

Commenters stated that the NPRM does 

not adequately explain how ‘‘willful 

blindness’’ differs from recklessness or 

negligence. 

At least one organization expressed 

concern that the rule removes the 

requirements that (1) a fabrication be 

deliberate; and (2) the deliberate 

fabrication be related to a material 

element of the case. The organization 

claimed the rule suggests that asylum 

seekers who are unaware that an 

‘‘essential element’’ is fabricated would 

be permanently barred from 

immigration benefits. The organization 

noted that the NPRM does not define 

‘‘essential’’ but instead focuses on 

‘‘fabricated material evidence,’’ 

emphasizing that, given the variance of 

standards, courts have held that 

‘‘fabrication of material evidence does 

not necessarily constitute fabrication of 

a material element,’’ quoting Khadka v. 

Holder, 618 F.3d 996, 1004 (9th Cir. 

2010). 

Another organization stated that 

while ‘‘[f]alse and fabricated evidence is 

inappropriate,’’ poor language skills and 

faulty memory can ‘‘produce honest 

mistakes that look like falsification,’’ 

emphasizing that the rule’s definition of 

‘‘frivolous’’ provides the Departments 

with ‘‘numerous opportunities to 

pressure applicants.’’ 

Commenters expressed particular 

concerns with the rule’s changes so that 

an application that lacks merit or is 

foreclosed by existing law could result 

in a frivolousness finding, particularly 

because case law involving asylum is 

constantly changing. For example, at 

least one organization contended that 

the rule contradicts existing regulations 

regarding a representative’s duty to 

advocate for his or her client, 

emphasizing that representatives are 

allowed to put forth ‘‘a good faith 

argument for the extension, 

modification, or reversal of existing law 

or the establishment of new law.’’ See 

8 CFR 1003.102(j)(1). Similarly, 

commenters alleged that the imposition 

of a permanent bar on applicants who 

raise claims challenging existing law 

‘‘deters representatives from putting 

forth nuanced arguments,’’ contending 

that a representative’s ethical duty to 

make every argument on a client’s 

behalf could potentially subject the 

client to the permanent bar. In addition, 

commenters argued that the ability of 

attorneys to make good faith arguments 

has been ‘‘crucial to modifying and 

expanding the law,’’ emphasizing that 

good faith arguments by representatives 

allow asylum seekers to pursue ‘‘a claim 

to the full extent of the law.’’ One 

organization stated that, by imposing 

penalties on individuals who make good 

faith attempts to seek protection ‘‘in 

light of contrary law based on different 

jurisdictions,’’ the rule ‘‘undoes years of 

jurisprudence in this field.’’ 

Commenters also emphasized that the 

rule would expand when the penalties 

for a frivolous filing may attach and 

would require individuals who wish to 

challenge a denial of asylum in Federal 

court to risk a finding that would bar 

any future immigration relief. One 

commenter alleged that, should an 

immigration judge find an application to 

be frivolous under the rule, the 

applicant would be ineligible for all 

forms of immigration relief simply for 

‘‘making a weak asylum claim.’’ One 

organization expressed concern that, as 

a result, asylum seekers would not seek 

relief for fear of losing their case and 

being accused of submitting a frivolous 

application. One organization claimed 

that the rule’s frivolousness procedure 

is designed to ‘‘instill fear in applicants 

to keep them from applying.’’ Another 

organization emphasized that 

expediency is ‘‘inappropriate’’ in the 

context of a determination that would 

‘‘subject the applicant to one of the 

harshest penalties in immigration law.’’ 

Commenters otherwise emphasized the 

seriousness for applicants of 

frivolousness findings. 

At least one organization called the 

rule ‘‘exceptionally unfair,’’ 

emphasizing that many asylum seekers 

are unrepresented and do not speak 

English, making it difficult for them to 

understand the complexities of ‘‘the 

ever-evolving law.’’ The organization 

noted that many asylum seekers fall 

prey to unscrupulous attorneys or 

notarios who file asylum applications 

for improper purposes, arguing that it is 


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21The Departments disagree with commenters’ 

concerns that Global-Tech is an inappropriate case 

to cite given the complexity of the underlying 

dispute. Instead, this case provides a clear and 

concise summary of the willful blindness standard, 

which is separate and apart from the underlying 

facts or adjudication. 

22As 85 percent of asylum applicants in 

immigration proceedings have representation, the 

likelihood of an alien alone knowingly making an 

argument that is foreclosed by law is relatively low 

as both a factual and legal matter. See EOIR, Current 

Representation Rates (Oct. 13, 2020), https://

www.justice.gov/eoir/page/file/1062991/download. 

entirely unfair to penalize applicants in 

these types of situations. 

Finally, at least one organization 

claimed that the rule would increase the 

workload of immigration judges, as they 

would be forced to determine whether 

the legal arguments presented sought to 

‘‘extend, modify, or reverse the law’’ or 

were merely foreclosed by existing law. 

The organization argued that, because of 

the burdens already placed on 

immigration judges, this expectation is 

unrealistic and ‘‘adds another layer to 

the litigation of referred asylum cases’’ 

in immigration court. 

Response: In general, commenters on 

this point either mischaracterized or 

misstated the proposed rule or relied 

solely on a hypothetical and speculative 

‘‘parade of horribles’’ that ignores the 

actual text and basis of the rule. 

Contrary to commenters’ concerns, the 

Departments do not believe that the 

proposed rule allows immigration 

judges or asylum officers to treat 

legitimate asylum requests as frivolous. 

Instead, the rule establishes four limited 

grounds for a frivolousness finding: 

Applications that (1) contain a 

fabricated essential element; (2) are 

premised on false or fabricated evidence 

unless the application would have been 

granted absent such evidence; (3) are 

filed without regard to the merits of the 

claim; or (4) are clearly foreclosed by 

applicable law. 8 CFR 208.20(c)(1)–(4), 

1208.20(c)(1)–(4). In addition, the rule 

provides that an alien ‘‘knowingly files 

a frivolous asylum application if . . . 

[t]he alien filed the application with 

either actual knowledge, or willful 

blindness, of the fact that the 

application’’ was one of those four 

types. 8 CFR 208.20(a)(2), 1208.20(a)(2). 

These changes are not ultra vires or an 

abuse of discretion. The Departments 

emphasize that the regulations interpret 

and apply the INA itself, the relevant 

provisions of which postdate the 

regulation defining frivolous as 

‘‘manifestly unfounded or abusive.’’ In 

addition, the INA does not define the 

term ‘‘frivolous,’’ see INA 208(d)(6), 8 

U.S.C. 1158(d)(6), and the Departments 

possess the authority to interpret such 

undefined terms. See INA 103(a)(3), 

(g)(2), 8 U.S.C. 1103(a)(3), (g)(2); see also 

Chevron, 467 U.S. at 866 (‘‘When a 

challenge to an agency construction of 

a statutory provision, fairly 

conceptualized, really centers on the 

wisdom of the agency’s policy, rather 

than whether it is a reasonable choice 

within a gap left open by Congress, the 

challenge must fail.’’). The Departments 

believe that the prior regulatory 

definition artificially limited the 

applicability of the frivolous asylum bar 

because it did not fully address the 

different types of frivolousness, such as 

abusive filings, filings for an improper 

purpose, or patently unfounded filings. 

Regarding the inclusion of willful 

blindness in determining what 

applications will be considered 

knowingly frivolous, the Departments 

reiterate that the inclusion of a willful 

blindness standard as part of a 

‘‘knowing’’ action is consistent with 

long-standing legal doctrine: 

The doctrine of willful blindness is well 

established in criminal law. Many criminal 

statutes require proof that a defendant acted 

knowingly or willfully, and courts applying 

the doctrine of willful blindness hold that 

defendants cannot escape the reach of these 

statutes by deliberately shielding themselves 

from clear evidence of critical facts that are 

strongly suggested by the circumstances. The 

traditional rationale for this doctrine is that 

defendants who behave in this manner are 

just as culpable as those who have actual 

knowledge. . . . It is also said that persons 

who know enough to blind themselves to 

direct proof of critical facts in effect have 

actual knowledge of those facts. . . . 

Global-Tech Appliances, Inc., 563 U.S. 

at 766 (internal citations omitted); 21 see 

also, e.g., United States v. CaraballoRodriguez, 726 F.3d 418 (3d Cir. 2013) 

(noting that ‘‘knowledge’’ can be 

demonstrated by actual knowledge or 

willful blindness.); United States v. 

Perez-Melendez, 599 F.3d 31, 41 (1st 

Cir. 2010) (‘‘Willful blindness serves as 

an alternate theory on which the 

government may prove knowledge.’’). 

The doctrine of willful blindness 

applies in many civil proceedings as 

well. See Global-Tech Appliances, 563 

U.S. at 768 (‘‘Given the long history of 

willful blindness and its wide 

acceptance in the Federal Judiciary, we 

can see no reason why the doctrine 

should not apply in civil lawsuits for 

induced patent infringement under 35 

U.S.C. 271(b).’’). Given this background, 

if Congress did not wish to allow for 

willfully blind actions to satisfy the 

‘‘knowing’’ requirement of section 

208(d)(6) of the Act, 8 U.S.C. 1158(d)(6), 

Congress could have expressly provided 

a definition of ‘‘knowingly’’ in the Act. 

Cf. Perrin v. United States, 444 U.S. 37, 

42 (1979) (‘‘A fundamental canon of 

statutory construction is that, unless 

otherwise defined, words will be 

interpreted as taking their ordinary, 

contemporary, common meaning.’’) 

(citations omitted). Due to Congress’s 

silence, however, the Departments find 

that the inclusion of willful blindness, 

as it is generally interpreted, is a 

reasonable interpretation that better 

aligns the regulations with 

congressional intent to limit and deter 

frivolous applications. 

Regarding the four grounds for finding 

an asylum application frivolous at 8 

CFR 208.20(c) and 1208.20(c), the 

Departments emphasize that an 

application will not be found to be 

frivolous unless the alien knew, or was 

willfully blind to the fact, that the 

application met one of the four grounds. 

Accordingly, commenters are incorrect 

that an alien who does not know that an 

essential element is fabricated will be at 

risk of an immigration judge finding that 

his or her application is frivolous. 

Similarly, an alien who submits a claim 

that is clearly foreclosed by the 

applicable law but who, as noted by 

commenters, does not know that the 

claim is so clearly foreclosed, would not 

have his or her claim found frivolous on 

that basis.22

The Departments disagree that the 

rule will enable the Departments to 

‘‘pressure’’ applicants who make 

mistakes of fact in the context of their 

application. Two of the bases related to 

fabricated elements or evidence, neither 

of which can be characterized 

appropriately as a mistake of fact. The 

other two bases go to the merits of the 

case or to applicable law, and neither of 

those turn on a mistake of fact. 

One commenter expressed concern 

about the NPRM’s proposed change, in 

the context of the definition of frivolous, 

from a fabricated ‘‘material’’ element to 

a fabricated ‘‘essential’’ element. The 

existing regulatory text provides that 

‘‘an asylum application is frivolous if 

any of its material elements is 

deliberately fabricated’’; under the 

NPRM, an application that contained a 

fabricated ‘‘essential element’’ might 

have been found frivolous. The 

Departments acknowledge that the 

NPRM indicated that it was maintaining 

the prior definition of ‘‘frivolous,’’ 

which was premised on a fabricated 

‘‘material’’ element, 85 FR at 36275, but 

then used the word ‘‘essential’’ in lieu 

of ‘‘material’’ in the proposed regulatory 

text itself. Although the Departments do 

not perceive a relevant difference 

between the two phrasings, they are 

reverting to the use of ‘‘material’’ in this 

context in the final rule to avoid any 

confusion. 


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23See Matter of Lozada, 19 I&N Dec. 637 (BIA 

1988) (setting out requirements for motions to 

reopen due to ineffective assistance of counsel 

allegations). 

24The Departments further note that purposefully 

filing meritless asylum applications, including for 

the purposes of causing DHS to initiate removal 

proceedings, violates the EOIR rules of professional 

conduct and constitutes behavior that may result in 

professional sanctions. See In re Bracamonte, No. 

D2016–0070 (July 1, 2020), https://www.justice.gov/ 

eoir/page/file/1292646/download (entering into a 

settlement agreement with a practitioner who 

‘‘acknowledges that it was improper to file asylum 

applications without an indicated basis for asylum 

or an indication as to any asylum claim, to cancel 

or otherwise advise clients to fail to appear for 

asylum interviews, and to not demonstrate a clear 

intention to pursue an asylum claim, in order to 

cause DHS to issue a Notice to Appear to his 

clients’’). 

Finally, commenters were particularly 

concerned about the frivolousness 

grounds covering claims that lack merit 

or are foreclosed by existing law. 

However, commenters’ concerns are not 

based on the actual rule. As explained 

in the NPRM, an unsuccessful claim 

does not mean that the claim is 

frivolous. See 85 FR at 36273–77. For 

example, arguments to extend, modify, 

or reverse existing precedent are not a 

basis for a frivolousness finding under 

the ‘‘clearly foreclosed by applicable 

law’’ ground. 85 FR at 36276. Similarly, 

as discussed supra, both the relatively 

low numbers of pro se asylum 

applicants in immigration court 

proceedings and the requirement that a 

frivolous asylum application be 

‘‘knowingly’’ filed will likely make 

frivolousness findings uncommon for 

pro se aliens under the ‘‘clearly 

foreclosed by applicable law’’ ground. 

Moreover, the proposed definition is 

fully consistent with the long-standing 

definition of ‘‘frivolous’’ behavior as 

applied in the context of practitioner 

discipline. See 8 CFR 1003.102(j)(1) (‘‘A 

practitioner engages in frivolous 

behavior when he or she knows or 

reasonably should have known that his 

or her actions lack an arguable basis in 

law or in fact, or are taken for an 

improper purpose, such as to harass or 

to cause unnecessary delay.’’). In other 

words, the bases for finding an asylum 

application frivolous do not limit 

ethical attorneys’ conduct in the manner 

described by commenters. 

As some commenters noted, however, 

some aliens may hire unscrupulous 

representatives or notarios who file 

applications for improper purposes. 

While the Departments are sympathetic 

to aliens who are victims of these 

unethical practices, the Departments 

note that, as described below in Section 

II.C.3.2 of this preamble, aliens must 

sign each asylum application attesting 

to the application’s accuracy and 

acknowledging the consequences of 

filing a frivolous application; moreover, 

‘‘[t]he applicant’s signature establishes a 

presumption that the applicant is aware 

of the contents of the application.’’ 8 

CFR 208.3(c)(2), 1208.3(c)(2). An alien 

may later file a motion to reopen 

premised on ineffective assistance of 

counsel 23 or pursue other subsequent 

avenues of redress against unscrupulous 

individuals, but the Departments find 

that an alien should not automatically 

be immune from the consequences of an 

asylum application he or she held out 

as accurate.24 To offer such immunity 

would create moral hazard. It would 

encourage aliens not to read or 

familiarize themselves with the contents 

of their applications, thereby subverting 

both the efficiency and accuracy of 

asylum adjudications. Moreover, the 

requirement that a frivolous asylum 

application be ‘‘knowingly’’ filed also 

ensures that only genuinely culpable— 

or co-conspirator—aliens will face the 

full consequences associated with these 

unethical practices. Cf. United States v. 

Phillips, 731 F.3d 649, 656 (7th Cir. 

2013) (‘‘It is careless to sign a document 

without reading it, but it is a knowing 

adoption of its contents only if the 

signer is playing the ostrich game 

(‘willful blindness’), that is, not reading 

it because of what she knows or 

suspects is in it.’’). 

The Departments disagree that the 

changes, including consideration of 

legal arguments regarding whether an 

asylum application was premised on a 

claim that was foreclosed by existing 

law, will increase the workload of 

immigration judges. As an initial point, 

immigration judges are already 

accustomed to both making 

frivolousness determinations and to 

assessing whether claims are foreclosed 

by applicable law; indeed, immigration 

judges are already required to apply 

precedent in asylum cases, even when 

a frivolousness finding is not at issue. 

Thus, the intersection of those two 

streams of decision making does not 

represent any additional adjudicatory 

burden. Further, the rule does not 

mandate that immigration judges make 

a determination in all cases, and many 

cases will not factually or legally lend 

themselves to a need to wrestle with 

close calls and complex determinations 

of whether an application was ‘‘clearly 

foreclosed by applicable law’’ due to the 

rest of the context of the application or 

the case. Finally, commenters also failed 

to consider that the direct inclusion of 

applications that are clearly foreclosed 

by applicable law as a possible basis for 

frivolousness findings may cause 

secondary efficiencies by 

disincentivizing the filing of meritless 

asylum applications in the first 

instance—applications that already take 

up significant immigration court 

resources. 

3.1.3. Other Concerns With Regulations 

Regarding Frivolous Applications 

Comment: Commenters expressed 

concern with the rule’s changes to the 

procedural requirements that must be 

satisfied before an immigration judge 

may make a frivolousness finding. For 

example, commenters noted that the 

rule would allow immigration judges to 

make frivolousness findings without 

providing an applicant with additional 

opportunities to account for perceived 

issues with his or her claim. Similarly, 

an organization alleged that immigration 

judges would not have to provide an 

opportunity for applicants to 

meaningfully address the frivolousness 

indicators found by an asylum officer. 

Commenters stated that the rule 

conflicts with Matter of Y–L–, 24 I&N 

Dec. at 155, emphasizing that the NPRM 

only requires that applicants be 

provided notice of the consequences of 

filing a frivolous application. At least 

one organization claimed the rule, by 

not requiring immigration judges to first 

provide an opportunity to explain, 

assumes that ‘‘applicants know what a 

judge would consider ‘meritless’ or 

implausible.’’ The organization 

contested the NPRM’s assertion that an 

asylum applicant ‘‘already . . . knows 

whether the application is . . . 

meritless and is aware of the potential 

ramifications,’’ claiming instead that 

applicants often lack a sophisticated 

knowledge of immigration law. See 85 

FR at 36276. 

Response: As stated in the proposed 

rule, the only procedural requirement 

Congress included in the Act for a 

frivolousness finding is the notice 

requirement at section 208(d)(4)(A) of 

the Act, 8 U.S.C. 1158(d)(4)(A). 85 FR at 

36276. In addition, the asylum 

application itself provides notice that an 

application may be found frivolous and 

that a frivolousness finding results in 

significant consequences. Id. The law is 

clear on this point. See, e.g., Niang v. 

Holder, 762 F.3d 251, 254–55 (2d Cir. 

2014) (‘‘Because the written warning 

provided on the asylum application 

alone is adequate to satisfy the notice 

requirement under 8 U.S.C. 

1158(d)(4)(A) and because Niang signed 

and filed his asylum application 

containing that warning, he received 

adequate notice warning him against 

filing a frivolous application.’’). Thus, 

every alien who signs and files an 

asylum application has received the 


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notice required by section 208(d)(4)(A) 

of the INA, 8 U.S.C. 1158(d)(4)(A). 

Accordingly, commenters are correct 

that the rule’s changes allow 

immigration judges to make 

frivolousness findings without the 

procedural requirements required by the 

current regulation and attendant case 

law. But the regulation and case law are 

not required by the Act, and have not 

been successful in preventing the filing 

of frivolous applications. To the extent 

commenters are correct that the rule 

conflicts with Matter of Y–L–, that 

decision is premised on the existing 

regulatory language that the 

Departments are revising. Thus, as the 

Departments noted in the proposed rule, 

this rule would overrule Matter of Y–L– 

and any other cases that rely on the 

same reasoning or now-revised 

regulatory language. 85 FR at 36277. 

Comment: At least one organization 

expressed its belief that DHS could 

institute frivolousness procedures more 

directly related to DHS’s adjudication of 

employment authorization requests 

(‘‘EADs’’). For example, the commenter 

noted that there is ‘‘no explanation’’ for 

why DHS cannot simply conduct a 

prima facie review of an I–589 filing 

prior to granting an EAD application or 

scheduling the I–589 interview. The 

organization claimed that, if the concern 

is the time and expense dedicated to 

‘‘clearly fraudulent’’ applications, DHS 

could devise a policy to screen for 

indicators that the application itself 

lacks merit or supporting 

documentation. The organization 

contended that DHS does this with 

other benefit applications and is not 

prohibited from issuing Requests for 

Evidence or Notices of Intent to Deny to 

affirmative asylum applicants prior to 

an interview. 

Response: Although the Departments 

appreciate this comment and DHS may 

evaluate it further as an additional 

avenue to protect the integrity of the 

asylum adjudication process, the 

Departments find that the changes set 

out in the proposed rule better align 

with congressional intent and are more 

efficient than a secondary process tied 

to the adjudication of EADS. Divorcing 

the question of frivolousness from the 

underlying adjudication of the 

application itself would potentially 

undermine Congress’s clear direction 

that aliens face consequences for filing 

frivolous asylum applications. INA 

208(d)(6), 8 U.S.C. 1158(d)(6). Moreover, 

asylum officers and immigration judges, 

the officials in the asylum system who 

are trained to review and adjudicate 

applications for asylum, are best 

positioned to make the sorts of 

determinations that the commenter 

suggests should instead be made by the 

DHS officials adjudicating EAD 

requests. 

Comment: At least one organization 

alleged that the rule, ‘‘perhaps 

recognizing its own harshness,’’ claims 

to ‘‘ameliorate the consequences’’ by 

allowing applicants to withdraw their 

application(s) before the court with 

prejudice, accept a voluntary departure 

order, and leave the country within 30 

days. The organization contended that, 

rather than ameliorating the 

consequences of a frivolous filing, these 

measures essentially replicate them in 

severity and permanence. 

Response: Despite commenters’ 

concerns, the Departments emphasize 

that this option to avoid the 

consequences of a frivolousness finding 

is a new addition to the regulations and 

provides applicants with a safe harbor 

not previously available. The 

Departments believe that the conditions 

are strict but reasonable and fair when 

compared with the alternative: The 

severe penalty for filing a frivolous 

application, as recognized by Congress 

at section 208(d)(6) of the Act, 8 U.S.C. 

1158(d)(6). Further, the Departments 

disagree that the consequences of 

withdrawing an application are of the 

same severity as a frivolousness finding 

because an alien who withdraws an 

application will be able to leave the 

United States without a removal order 

and seek immigration benefits from 

abroad, while an alien who is found to 

have submitted a frivolous application 

is ‘‘permanently ineligible for any 

benefits’’ under the Act. INA 208(d)(6), 

8 U.S.C. 1158(d)(6). 

Comment: One organization 

emphasized that, although the NPRM 

claims that broadening the definition of 

frivolous would root out ‘‘unfounded or 

otherwise abusive claims,’’ the NPRM 

does not include any evidence of large 

numbers of pending frivolous 

applications. 

Response: Congress laid out 

consequences for filing a frivolous 

asylum application at section 208(d)(6) 

of the Act, 8 U.S.C. 1158(d)(6), 

demonstrating the importance of the 

issue. There is no precise data threshold 

for a regulation that implements a clear 

statutory priority. Moreover, Federal 

courts have recognized both the extent 

of asylum fraud and the fact that the 

Government does not catch all of it. 

Angov, 788 F.3d at 902 (‘‘Cases 

involving fraudulent asylum claims are 

distressingly common. . . . And for 

every case where the fraud is discovered 

or admitted, there are doubtless scores 

of others where the petitioner gets away 

with it because our government didn’t 

have the resources to expose the lie.’’). 

Indeed, as the Departments noted in the 

NPRM, the prior definition did not 

adequately capture the full spectrum of 

claims that would ordinarily be deemed 

frivolous, 85 FR at 36274, making 

statistics based on the prior definition 

either misleading or of minimal 

probative value. 

The Departments note the record 

numbers of asylum applications filed in 

recent years, including 213,798 in Fiscal 

Year 2019, up from the then-previous 

record of 82,765 in Fiscal Year 2016. 

EOIR, Total Asylum Applications (Oct. 

13, 2020), https://www.justice.gov/eoir/ 

page/file/1106366/download. Given this 

significant increase in applications— 

which almost certainly means an 

increase in frivolous applications—and 

the corresponding increase in 

adjudications, the Departments believe 

it is important to ensure the regulations 

best reflect congressional intent and 

deter the submission of frivolous 

applications that delay the adjudication 

of meritorious cases. 

Comment: Another organization 

expressed particular concern for 

children seeking asylum, noting that, 

although the TVPRA requires 

unaccompanied children’s claims to be 

heard by asylum officers, the rule’s 

expansion of a ‘‘frivolous’’ claim would 

result in the denial of meritorious 

claims for children who are 

unrepresented and ‘‘unable to decipher 

complex immigration law.’’ The 

organization contended that, because 

the rule would permit asylum officers 

who determine that a child’s claim is 

‘‘frivolous’’ to refer the case to 

immigration court without examining 

the merits of the claim, unaccompanied 

children ‘‘would be forced into 

adversarial proceedings before an 

immigration judge in clear violation of 

the TVPRA and in a manner that would 

subject them to all of the harms 

attendant to adversarial hearings where 

there is no guarantee of representation.’’ 

Similarly, at least one organization 

emphasized that the ‘‘safety valve’’ of 

allowing children to accept withdrawal 

conditions to avoid the consequences of 

a frivolousness finding is illusory, and 

may pressure children to waive valuable 

rights. 

Response: Again, the Departments 

note that these concerns generally are 

not rooted in any substantive evidence 

and either mischaracterize or misstate 

the proposed rule. The Departments 

find the safeguards in place for allowing 

asylum officers to make a finding that 

an asylum application is frivolous are 

sufficient to protect unaccompanied 

alien children (‘‘UAC’’) in the 

application process. Even if an asylum 

officer finds an application is frivolous, 


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25For further discussion of the intersection of the 

rule and the TVPRA, see section II.C.6.10. 

26This includes applications filed in connection 

with a motion to reopen on or after the effective 

date of the rule or applications filed on or after the 

effective date of the rule after proceedings have 

been reopened or recalendared. 

27The text of 8 CFR 1240.11(c)(3) references, inter 

alia, the mandatory denial of an asylum application 

pursuant to 8 CFR 1208.14. In turn, 8 CFR 

1208.14(a) references 8 CFR 1208.13(c), which lists 

the specific grounds for the mandatory denial of an 

asylum application, including those listed in INA 

208(a)(2) and (b)(2) (8 U.S.C. 1158(a)(2) and (b)(2)). 

Some of those grounds may require a hearing to 

address disputed factual issues, but some involve 

purely legal questions—e.g. INA 208(b)(2)(A)(ii) and 

(B)(i) (8 U.S.C. 1158(b)(2)(A)(ii) and (B)(i)) (an alien 

convicted of an aggravated felony is ineligible for 

asylum)—and, thus, may be pretermitted without a 

hearing. 

28The National Association of Immigration 

Judges (‘‘NAIJ’’), the union which formerly 

represented non-supervisory immigration judges, 

opposed the rule on general grounds but did not 

take a position on this specific provision. A. Ashley 

Tabadorr, Comment by the National Association of 

Immigration Judges, (July 15, 2020), https://

www.naij-usa.org/images/uploads/newsroom/ 

the application is referred to an 

immigration judge who provides review 

of the determination. The asylum 

officer’s determination does not render 

the applicant permanently ineligible for 

immigration benefits unless the 

immigration judge or the BIA also make 

a finding of frivolousness. Id. Further, 

asylum officers and immigration judges 

continue to use child-appropriate 

procedures taking into account age, 

stage of language development, 

background, and level of 

sophistication.25 Finally, to be found 

frivolous, an application must be 

knowingly filed as such, and the 

Departments anticipate that very young 

UACs will typically not have the 

requisite mental state to warrant a 

frivolousness finding. 

Comment: At least one commenter 

appeared to express concern that the 

rule includes all applications submitted 

after April 1, 1997, as those which could 

potentially be deemed frivolous. 

Response: To the extent the 

commenter is concerned about frivolous 

applications in general dating back to 

April 1, 1997, the Departments note that 

DOJ first implemented regulations 

regarding frivolous asylum applications 

on March 6, 1997, effective April 1, 

1997. Inspection and Expedited 

Removal of Aliens; Detention and 

Removal of Aliens; Conduct of Removal 

Proceedings; Asylum Procedures, 62 FR 

10312, 10344 (Mar. 6, 1997). The April 

1, 1997 effective date was enacted by 

Congress in 1996 through IIRIRA. See 

IIRIRA, Public Law 104–208, sec. 604(a), 

110 Stat. 3009, 3009–693. Thus, all 

asylum applications filed on or after 

April 1, 1997, have been subject to a 

potential penalty for frivolousness for 

many years. 

The NPRM made clear, however, that 

the new regulatory definition of 

frivolous applies only to applications 

filed 26 on or after the effective date of 

the final rule. To provide further 

clarification on this point, the 

Departments made several nonsubstantive edits to the regulatory text at 

8 CFR 208.20 and 8 CFR 1208.20 in the 

final rule to clarify the temporal 

applicability of the existing definition of 

frivolousness and the prospective 

application of the definition contained 

in the rule. Thus, the commenters 

apparent retroactivity concerns about 

the definition of a frivolous application 

have been addressed. For further 

discussion of the rule’s retroactive 

applicability, see Section II.C.7 of this 

preamble. 

3.2. Pretermission of Legally Insufficient 

Applications 

3.2.1. Pretermission and the INA 

Comment: Commenters stated that 

allowing immigration judges to 

pretermit applications conflicts with 

multiple sections of the INA and is not 

a ‘‘reasonable’’ interpretation of the 

INA. 

Commenters cited section 208(a)(1) of 

the Act, 8 U.S.C. 1158(a)(1), alleging 

that the phrase ‘‘may apply for asylum’’ 

should be broadly construed. 

Commenters also noted that the statute 

requires the establishment of a 

procedure for considering asylum 

applications. INA 208(d)(1), 8 U.S.C. 

1158(d)(1). Commenters claimed that 

allowing for the pretermission of asylum 

applications does not satisfy this 

required procedure and is an 

‘‘unreasonable interpretation’’ of the 

statute. 

Commenters stated that the rule 

violates section 240(b)(1) of the Act, 8 

U.S.C. 1229a(b)(1), which states that 

‘‘[t]he immigration judge shall 

administer oaths, receive evidence, and 

interrogate, examine, and cross-examine 

the alien and any witnesses.’’ 

Commenters stated that the rule violates 

this requirement by ‘‘requiring 

immigration judges to abandon their 

essential function of examining the 

noncitizen about their application for 

relief.’’ 

Similarly, commenters stated that the 

rule violates section 240(b)(4)(B) of the 

Act, 8 U.S.C. 1229a(b)(4)(B), which 

states that ‘‘the alien shall have a 

reasonable opportunity to examine the 

evidence against the alien, to present 

evidence on the alien’s own behalf, and 

to cross-examine witnesses presented by 

the Government.’’ Commenters believe 

the rule violates this provision because 

it denies aliens the ability to present 

and examine evidence on their own 

behalf, including their own credible 

testimony. 

Finally, commenters stated that the 

rule violates section 240(c)(4) of the Act, 

8 U.S.C. 1229a(c)(4), which states that, 

inter alia, ‘‘the immigration judge shall 

weigh the credible testimony along with 

other evidence of record’’ when 

determining whether an alien has met 

his or her burden of proof on an 

application for relief. INA 240(c)(4)(B), 

8 U.S.C. 1229a(c)(4)(B). 

Commenters also disagreed with the 

Departments that allowing 

pretermission of applications would not 

conflict with the legislative history of 

IIRIRA. See 85 FR at 36277 n.26 (noting 

statements in H.R. Rep. No. 104–469, 

part 1 (1996) regarding balancing the 

need for the alien to provide sufficient 

information on the application with the 

need for the alien’s application to be 

timely). Commenters stated that the rule 

creates additional burdens for aliens 

with regard to submission and 

preparation of the Form I–589. 

Response: Allowing pretermission of 

asylum applications in the manner set 

out in this rule does not violate the INA. 

As an initial point, the regulations have 

long allowed immigration judges to 

pretermit asylum applications when 

certain grounds for denial exist. See 8 

CFR 1240.11(c)(3).27 Additionally, 

courts have affirmed the pretermission 

of legally deficient asylum applications. 

See, e.g., Zhu v. Gonzales, 218 F. App’x 

21, 23 (2d Cir. 2007) (‘‘Here, the IJ 

alerted Zhu early in the proceedings 

that his asylum claim might be 

pretermitted if he failed to illustrate a 

nexus to a protected ground, and 

granted him a 30-day continuance in 

which to submit a brief addressing the 

nexus requirement. When Zhu had 

neither submitted a brief, nor requested 

an extension of the deadline, after 

nearly 60 days, the IJ acted within his 

discretion in pretermitting the asylum 

claim.’’). As discussed further below, 

the pretermission of legally deficient 

asylum applications is consistent with 

existing law, and immigration judges 

already possess authority to take any 

action consistent with their authorities 

under the law that is appropriate and 

necessary for the disposition of cases, 8 

CFR 1003.10(b), to generally take any 

appropriate action consistent with 

applicable law and regulations, id. 

1240.1(a)(1)(iv), and to regulate the 

course of a hearing, id. 1240.1(c). 

Accordingly, the authority of an 

immigration judge to pretermit an 

asylum application is well-established 

even prior to the proposed rule.28


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2020.07.15.00.pdf (‘‘NAIJ’s comment to the 

proposed rulemaking takes no position on what the 

law should be or how it is to be interpreted.’’). 

Nevertheless, individual immigration judges have, 

on occasion, pretermitted legally-deficient asylum 

applications even prior to the issuance of the 

proposed rule. 

Further, regarding sections 208(a)(1) 

and 208(d)(1) of the Act, 8 U.S.C. 

1158(a)(1) and (d)(1), nothing in the rule 

regarding the pretermission of 

applications affects the ability of aliens 

to apply for asylum, and this rule adds 

to the already robust procedures in 

place for the consideration and 

adjudication of applications for asylum. 

Instead, pretermission establishes an 

efficiency for the adjudication of 

applications for asylum that have been 

submitted for consideration and is 

utilized in a similar fashion as summary 

decision is used in other DOJ 

immigration-related proceedings, see 28 

CFR 68.38, and as summary judgment is 

used in Federal court proceedings, see 

Fed. R. Civ. P. 56. 

Similarly, pretermission of asylum 

applications in the manner set out in 

this rule does not violate any provision 

of section 240 of the Act, 8 U.S.C. 

1229a. First, section 240(b)(1) of the Act, 

8 U.S.C. 1229a(b)(1), authorizes 

immigration judges to ‘‘interrogate, 

examine, and cross-examine the alien 

and any witnesses’’ but does not 

establish a mandatory requirement for 

them to do so in every case on every 

application or issue. Further, it is settled 

law that immigration judges may 

pretermit applications for relief in other 

contexts. See, e.g., Matter of J–G–P–, 27 

I&N Dec. 642, 643 (BIA 2019) 

(explaining that the immigration judge 

granted DHS’s motion and pretermitted 

the respondent’s application for 

cancellation of removal due to the 

respondent’s disqualifying criminal 

conviction); Matter of Moreno-Escobosa, 

25 I&N Dec. 114 (BIA 2009) (reviewing 

questions of eligibility for a waiver of 

inadmissibility under former section 

212(c) of the Act (8 U.S.C. 1182(c) 

(1994)) following an immigration 

judge’s pretermission of the 

respondent’s application). Second, the 

rule allows the applicant a ‘‘reasonable 

opportunity’’ to present evidence on his 

or her own behalf before pretermission 

as an immigration judge would not 

pretermit an application without either 

the time expiring for the alien to 

respond to DHS’s motion or the judge’s 

notice. Similarly, the alien would be 

afforded the opportunity to present 

evidence, including written testimony, 

on their own behalf prior to an 

immigration judge’s decision to 

pretermit an application, in accordance 

with section 240(b)(4)(B) and (c)(4) of 

the Act, 8 U.S.C. 1229a(b)(4)(B) and 

(c)(4). 

Regarding the legislative history of 

IIRIRA, the Departments find that 

allowing pretermission in the manner 

set out in the proposed rule and this 

final rule does not conflict with the 

legislative history of IIRIRA. First, 

regarding the statement in the House 

report cited in the proposed rule, the 

Departments note that at that point, the 

House legislation would have imposed 

a 30-day filing deadline for asylum 

applications. See H.R. Rep. No. 104– 

469, pt. 1, at 259 (1996). Accordingly, 

the Departments find that congressional 

statements suggesting lower 

requirements for specificity in an 

asylum application were based on a 

concomitant suggestion that an 

application should be filed within 30 

days and were correspondingly obviated 

by the longer one-year filing deadline 

ultimately enacted by IIRIRA. INA 

208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). 

Second, there is no discussion in the 

IIRIRA conference report that similarly 

encourages a condensed application for 

the sake of expediency. See generally 

H.R. Rep. No. 104–828 (1996) 

(conference report). Finally, the 

Departments reiterate that, as stated in 

the proposed rule, the alien would only 

be expected to provide ‘‘enough 

information to determine the basis of 

the alien’s claim for relief and if such a 

claim could be sufficient to demonstrate 

eligibility.’’ 85 FR at 36277 n.26. Indeed, 

the Departments expect that aliens who 

complete the Form I–589, Application 

for Asylum and for Withholding of 

Removal, in accordance with the 

instructions and provide all information 

requested by the form would provide 

sufficient information for the prima 

facie determination, just as it does in the 

context of a motion to reopen. See INS 

v. Abudu, 485 U.S. 94, 104 (1988) 

(‘‘There are at least three independent 

grounds on which the BIA may deny a 

motion to reopen. First, it may hold that 

the movant has not established a prima 

facie case for the underlying substantive 

relief sought.’’) Further, an alien would 

be able to provide additional 

information as desired in response to 

the DHS motion or immigration judge 

notice regarding possible pretermission. 

In short, a requisite prima facie showing 

for an asylum application is not an 

onerous burden, and the Departments 

disagree with the commenter that 

allowing pretermission presents any 

additional mandatory burden on the 

alien beyond that which is already 

required by the asylum application 

itself. 

3.2.2. Pretermission and the Regulations 

Comment: Commenters stated that 

allowing pretermission of applications 

in the manner set out in the proposed 

rule violates the other regulatory 

provisions, including 8 CFR 1240.1(c), 8 

CFR 1240.11(c)(3), and 8 CFR 

1240.11(c)(3)(iii). Regarding 8 CFR 

1240.1(c) (‘‘The immigration judge shall 

receive and consider material and 

relevant evidence... .’’), commenters 

noted that pretermission would 

foreclose consideration of an asylum 

seeker’s testimony, which is often one of 

the most important pieces of evidence, 

as well as witness testimony. Regarding 

8 CFR 1240.11(c)(3) (‘‘Applications for 

asylum and withholding of removal so 

filed will be decided by the immigration 

judge . . . after an evidentiary hearing 

to resolve factual issues in dispute.’’), 

commenters emphasized the 

regulation’s requirement that an 

immigration judge’s decision be made 

‘‘after an evidentiary hearing’’ and noted 

that the factual and legal issues in an 

asylum claim are often interconnected. 

Regarding 8 CFR 1240.11(c)(3)(iii) 

(‘‘During the removal hearing, the alien 

shall be examined under oath on his or 

her application and may present 

evidence and witnesses in his or her 

own behalf’’), commenters stated that 

pretermission would deprive the alien 

of the opportunity to meet his or her 

burden of proof through testimony, 

which may be sufficient for the alien to 

sustain the burden of proof without 

corroboration. 

Commenters stated that allowing 

pretermission would make into 

surplusage the provisions of the 

regulations regarding the authority of 

the immigration judge to consider 

evidence (8 CFR 1240.11(c) and control 

the scope of the hearing (c)(3)(ii)). 

Response: Allowing pretermission of 

asylum applications that fail to 

demonstrate a prima facie claim for 

relief or protection in the manner set out 

in the proposed rule and this final rule 

does not violate other provisions of the 

Departments’ regulations. As stated in 

the proposed rule, ‘‘[n]o existing 

regulation requires a hearing when an 

asylum application is legally deficient.’’ 

85 FR at 36277. Commenters’ arguments 

to the contrary misconstrue the 

regulatory framework. The Departments 

agree that an alien’s testimony may be 

important evidence for a case. See, e.g., 

Matter of Mogharrabi, 19 I&N Dec. 439, 

445 (BIA 1987) (‘‘The alien’s own 

testimony may in some cases be the 

only evidence available, and it can 

suffice where the testimony is 

believable, consistent, and sufficiently 

detailed to provide a plausible and 


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29Nevertheless, despite commenters’ statements, 

the Departments emphasize that while an alien’s 

testimony may be sufficient to meet his or her 

burden of proof on its own, such testimony must 

be ‘‘credible,’’ ‘‘persuasive,’’ and refer to sufficient 

specific facts.’’ INA 240(c)(4)(B) (8 U.S.C. 

1229(c)(4)(B)). Otherwise, the immigration judge 

may determine that the alien should provide 

corroborative evidence unless the alien can 

demonstrate that he or she does not have and 

cannot reasonably obtain the evidence. Id.; see also 

Matter of E–P–, 21 I&N Dec. 860, 862 (BIA 1997) (a 

finding of credible testimony is not dispositive as 

to whether asylum should be granted). 

30The Departments also note that an alien may 

proffer written testimony as part of his or her 

response to either the DHS motion or judge’s notice 

regarding pretermission. 

31The amended regulatory provisions at 8 CFR 

236.3, which regarded exclusion proceedings, and 

8 CFR 242.17, which regarded deportation 

proceedings, are the precursors to current 

regulatory sections 8 CFR 1240.33 and 8 CFR 

1240.49. Cf. Inspection and Expedited Removal of 

Aliens; Detention and Removal of Aliens; Conduct 

of Removal Proceedings; Asylum Procedures, 62 FR 

444, 450 (Jan. 3, 1997) (discussing the relocation of 

‘‘old regulations which are still applicable to 

proceedings commenced prior to April 1, 1997 . . . 

to new parts of the regulations as separate 

subtopics’’). Current 8 CFR 1240.11(c)(3) in turn 

follows this approach for the consideration of 

asylum applications during removal proceedings 

under section 240 of the Act (8 U.S.C. 1229a). 

coherent account of the basis for his 

fear.’’).29 But in cases where it is clear 

from the fundamental bases of the 

alien’s claim that the claim is legally 

deficient and the alien will not be able 

to meet his or her burden of proof, 

regardless of the additional detail or 

specificity that the alien’s testimony 

may provide, such testimony is not 

material or relevant and is not needed 

for the judge to be able to make a 

determination that the application is 

legally insufficient.30

Further, the rule does not conflict 

with the specific regulatory sections 

cited by the commenters. To the 

contrary, as discussed, supra, the rule is 

fully consistent with an immigration 

judge’s existing authority to take any 

action consistent with their authorities 

under the law that is appropriate and 

necessary for the disposition of cases, 8 

CFR 1003.10(b), to generally take any 

appropriate action consistent with 

applicable law and regulations, id. 

1240.1(a)(1)(iv), and to regulate the 

course of a hearing, id. 1240.1(c). 

Further, the rule does not affect the 

instruction at 8 CFR 1240.1(c) for 

immigration judges to consider material 

and relevant evidence. If a case presents 

a prima facie claim, the case will 

proceed through the adjudicatory 

process consistent with current practice, 

including the submission and 

consideration of whatever material and 

relevant evidence is included in the 

record. Similarly, in that adjudication, 

the alien would be examined and 

allowed to present evidence and 

witnesses, consistent with 8 CFR 

1240.11(c)(3)(iii). Finally, those 

applications that present a prima facie 

claim will proceed to an evidentiary 

hearing to resolve those factual and 

legal issues presented by the alien’s 

claim. See 8 CFR 1240.11(c)(3). 

Accordingly, pretermission works to 

supplement the existing regulations; it 

does not conflict with them, nor does it 

render them surplusage. 

3.2.3. Pretermission and BIA Case Law 

Comment: Commenters stated that 

allowing immigration judges to 

pretermit and deny asylum applications 

violates Matter of Fefe, 20 I&N Dec. 116 

(BIA 1989), and Matter of Ruiz, 20 I&N 

Dec. 91 (BIA 1989). Commenters 

disagreed with the Departments’ 

distinguishing Matter of Fefe in the 

proposed rule by noting that the 

underlying regulations interpreted by 

the BIA in Matter of Fefe are no longer 

in effect. See 85 FR at 36277. Instead, 

commenters stated that both the BIA 

and the Federal courts have noted that 

the current regulations at 8 CFR 1240.11 

are substantially similar to the 

regulations at issue in Matter of Fefe. 

See Matter of E–F–H–L–, 26 I&N Dec. 

319, 323 (BIA 2014) (noting that the 

current regulatory ‘‘language does not 

differ in any material respect from that 

in the prior regulations’’), vacated by 27 

I&N Dec. 226, 226 (A.G. 2018); Oshodi 

v. Holder, 729 F.3d 883, 898 (9th Cir. 

2013) (‘‘We reaffirm our holding, and 

the BIA’s own rule, that an applicant’s 

oral testimony is ‘an essential aspect of 

the asylum adjudication process’ and 

the refusal to hear that testimony is a 

violation of due process.’’) (citing Matter 

of Fefe, 20 I&N Dec. at 118). 

Response: As stated in the proposed 

rule, the Departments find that 

intervening changes to the regulations 

since its publication and the Attorney 

General’s vacatur of Matter of E–F–H–L– 

have superseded the BIA’s holding in 

Matter of Fefe. 85 FR at 36277. The 

BIA’s statement in Matter of E–F–H–L– 

that the current regulations ‘‘do not 

differ in any material respect’’ from 

those in effect in 1989 was simply not 

accurate, and the Departments find that 

the regulations today create a 

substantively different framework for 

adjudications than the regulations in 

1989. Notably, the earlier regulations 

contained a general requirement that all 

applicants be examined in person by an 

immigration judge or asylum officer 

prior to the application’s adjudication. 8 

CFR 208.6 (1988). Today, however, the 

regulations provide direct examples of 

times when no hearing on an asylum 

application is required: If no factual 

issues are in dispute and once the 

immigration judge has determined that 

the application must be denied pursuant 

to the mandatory criteria in 8 CFR 

1208.14 or 1208.16. See 8 CFR 

1240.11(c)(3) (‘‘An evidentiary hearing 

extending beyond issues related to the 

basis for a mandatory denial of the 

application pursuant to § 1208.14 or 

§ 1208.16 of this chapter is not 

necessary once the immigration judge 

has determined that such a denial is 

required.’’). 

The procedures at 8 CFR part 208 at 

issue in Matter of Fefe were first 

amended in 1990. Aliens and 

Nationality; Asylum and Withholding of 

Deportation Procedures, 55 FR 30674 

(July 27, 1990) (final rule); Aliens and 

Nationality; Asylum and Withholding of 

Deportation Procedures, 53 FR 11300 

(Apr. 6, 1988) (proposed rule). At that 

time, the Department clearly indicated 

that the purpose of the amendments 31

was to allow immigration judges and the 

BIA greater flexibility to ‘‘limit the 

scope of evidentiary hearings . . . to 

matters that are dispositive of the 

application for relief.’’ 53 FR at 11301. 

The Department of Justice explained 

that, ‘‘[i]f it is apparent upon the record 

developed during a proceeding that the 

alien is clearly ineligible for asylum or 

withholding of deportation, the 

Immigration Judge will be permitted to 

forego a further evidentiary hearing on 

questions extraneous to the decision, 

thus avoiding unnecessary and time 

consuming factual hearings on 

nondispositive issues.’’ Id. 

Despite the BIA’s statements opining 

on the similarity of 8 CFR 1240.11(c) 

and 8 CFR 236.3 and 242.17 (1988)— 

which, as stated elsewhere have been 

vacated by the Attorney General—the 

Departments find that there are clear 

procedural differences between a 

general requirement to conduct a 

hearing and regulations that establish 

clear exceptions to a hearing 

requirement. In short, the Board’s 

decisions in Matter of Fefe and Matter 

of E–F–H–L–, in light of subsequent legal 

developments, simply do not stand for 

the propositions advanced by some 

commenters. See Ramirez v. Sessions, 

902 F.3d 764, 771 n.1 (8th Cir. 2018) 

(‘‘The current relevance of [Matter of 

Fefe and Matter of E–F–H–L–] is 

questionable. The regulations applied in 

Matter of Fefe were later rescinded and 

replaced. Further, Matter of E–F–H–L–, 

which reaffirmed Matter of Fefe, was 

vacated [by the Attorney General] after 

the petitioner withdrew his 

application.’’). 


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Further, even if the regulation 

conflicted with a prior interpretation by 

the BIA, the Attorney General, 

consistent with his authority to interpret 

the INA, may still issue the rule. INA 

103(g), 8 U.S.C. 1103(g). The 

Departments are not bound by prior 

judicial interpretations of the 

Departments’ own regulations, as such 

interpretations are not interpretations of 

the INA’s statutory requirements. 

Matter of Ruiz, is also distinguishable. 

There, the BIA held that an immigration 

judge could not require an alien who 

sought to reopen proceedings conducted 

in absentia to demonstrate a prima facie 

eligibility for asylum in conjunction 

with the motion to reopen. Matter of 

Ruiz, 20 I&N Dec. at 93. Instead, the BIA 

held that the alien must demonstrate a 

‘‘reasonable cause for his failure to 

appear.’’ Id. But the change in the rule 

here—which allows immigration judges 

to pretermit and deny asylum 

applications that fail to demonstrate a 

prima facie claim for relief or 

protection—has no connection to what 

aliens must demonstrate in order to 

reopen a hearing conducted in absentia. 

The in absentia requirements are 

separately set out by the Act and 

regulations. See INA 240(b)(5)(C)(i)–(ii), 

8 U.S.C. 1229a(b)(5)(C)(i)–(ii) (providing 

conditions for rescinding an in absentia 

removal order based on a motion to 

reopen); 8 CFR 1003.23(b)(4)(ii). There 

is no separate requirement to 

demonstrate further eligibility for any 

application for relief, consistent with 

Matter of Ruiz. Further, the equivalent 

statutory right to former section 236(a) 

of the Act, 8 U.S.C. 1226(a), which was 

at issue in Matter of Ruiz, is the alien’s 

rights in a proceeding under section 

240(b)(4) of the Act, 8 U.S.C. 1229(b)(4), 

which, as discussed above, are not 

violated by allowing an immigration 

judge to pretermit and deny 

applications that fail to demonstrate a 

prima facie claim for relief or 

protection. 

3.2.4. Additional Concerns Regarding 

Pretermission 

Comment: Multiple commenters 

expressed concern that the rule would 

allow immigration judges to dismiss 

asylum claims without a hearing, 

denying applicants the opportunity to 

appear in court and offer testimony. 

Commenters emphasized that the rule is 

‘‘extremely problematic’’ from a due 

process perspective and violates aliens’ 

Fifth Amendment due process rights. In 

support, commenters cited to case law 

discussing the right to testify and 

finding due process violations when 

that right is curtailed or limited. See, 

e.g., Atemnkeng v. Barr, 948 F.3d 231, 

242 (4th Cir. 2020) (holding that there 

was a due process violation where the 

immigration judge deprived an asylum 

applicant of the opportunity to testify 

on remand). Commenters emphasized a 

quote from the chair of the American 

Immigration Lawyers Association’s 

asylum committee stating that ‘‘the 

pretermission authority was the most 

striking attack on due process in the 

proposal,’’ and noting that some 

immigration judges already have denial 

rates of 90 percent or higher. 

Response: The commenters appear to 

misconstrue both the nature of the rule 

and the difference between issues of fact 

and issues of law. None of the examples 

provided by commenters involved 

situations in which an immigration 

judge pretermitted an application as 

legally deficient; rather, they involve 

situations in which an immigration 

judge initially allowed testimony but 

then cut-off questioning—or, in one 

case, disallowed testimony altogether— 

following a remand. In other words, the 

posture of the examples cited by 

commenters is one in which an alien 

had already demonstrated a prima facie 

case, making those examples inapposite 

to the rule. Commenters did not provide 

any examples where a properly 

supported legal pretermission—by 

itself—was found to be a due process 

violation, nor did commenters explain 

how analogous summary-decision or 

summary-judgment provisions in other 

contexts—e.g. 28 CFR 68.38 or Fed. R. 

Civ. P. 56—remain legally valid even 

though they, too, curtail an individual’s 

ability to testify or introduce evidence 

in proceedings. In short, the 

commenters’ concerns appear 

unconnected to the actual text of the 

rule and the applicable law. 

The Departments disagree that 

allowing immigration judges to 

pretermit and deny asylum applications 

that do not show a prima facie claim for 

relief would violate applicants’ due 

process rights. The essence of due 

process is notice and an opportunity to 

be heard. See LaChance, 522 U.S. at 

266. Nothing in the rule eliminates 

notice of charges of removability against 

an alien, INA 239(a)(1), 8 U.S.C. 

1229(a)(1), or the opportunity for the 

alien to make his or her case to an 

immigration judge, INA 240(a)(1), 8 

U.S.C. 1229a(a)(1), or on appeal, 8 CFR 

1003.38. 

In addition, the rule would not 

require or expect aliens to meet their 

ultimate burden of proof to avoid 

pretermission; instead, the alien must 

only (per one common definition of 

‘‘prima facie’’) ‘‘establish a fact or raise 

a presumption, unless disproved or 

rebutted.’’ Black’s Law Dictionary (11th 

ed. 2019); cf. Tilija v. Att’y Gen., 930 

F.3d 165, 171 (3d Cir. 2019) (‘‘To 

establish a prima facie claim, the 

movant ‘must produce objective 

evidence that, when considered together 

with the evidence of record, shows a 

reasonable likelihood that he is entitled 

to [asylum] relief.’’’ (citation omitted)). 

Further, the rule ensures the alien has 

an opportunity to respond to either the 

DHS motion or the judge’s notice 

regarding pretermission and provide the 

court with additional argument or 

evidence, including proffered written 

testimony, in support of the alien’s 

application. 

Comment: Commenters emphasized 

that asylum seekers are vulnerable and 

often unrepresented and noted the low 

rates of representation for aliens in the 

Migrant Protection Protocols (‘‘MPP’’) in 

particular. Because many asylum 

seekers do not speak English, it is often 

difficult for them to navigate the 

complexities of the immigration system. 

Commenters specifically noted that it is 

hard for detained, unrepresented 

individuals to complete asylum 

applications because they are often 

required to use ‘‘unofficial translators’’ 

with whom they are not comfortable 

sharing personal information. 

Commenters stated that the immigration 

judge’s consideration of an alien’s 

response to the judge’s notice or DHS 

motion regarding pretermission does not 

alleviate the commenters’ concerns. 

Commenters argued that the same 

language barriers and other 

vulnerabilities would apply to both the 

response and the underlying Form I–589 

application; thus, they contend, a 

response alone does not provide a 

‘‘meaningful opportunity’’ to address 

misunderstandings or fully engage with 

the judge or DHS. 

Response: As an initial point, the 

commenters’ assertion of a low rate of 

representation is inaccurate. The 

Departments note that a large majority 

(85 percent at the end of FY2020) of 

those asylum seekers who are in 

proceedings before DOJ—and who, in 

turn, could have an immigration judge 

pretermit their asylum applications—are 

represented in proceedings. EOIR, 

Adjudication Statistics: Representation 

Rates (Oct. 13, 2020), https://

www.justice.gov/eoir/page/file/1062991/ 

download. Second, while the 

Departments agree with commenters 

that many asylum seekers’ first or 

preferred language is a language other 

than English, the Departments find that 

it is reasonable to expect aliens to 

utilize translators or other resources in 

order to complete the Form I–589 

application in accordance with the 

regulations and instructions, which 


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32Many commenters raised this issue specifically 

for particular social group asylum claims, noting 

the fact-intensive nature of the social distinction 

element—i.e., that it be recognized by the society 

in question—required for such groups. See S.E.R.L., 

894 F.3d at 556 (‘‘And that must naturally be so, 

once it is given that social distinction involves 

proof of societal views. What those views are and 

how they may differ from one society to another are 

questions of fact’’). The Departments recognize that 

situations in which particular social group asylum 

claims may be pretermitted due to a failure to make 

a prima facie showing of the social distinction 

element are likely to be rare. Nevertheless, the 

require that the form be completed in 

English. See 8 CFR 208.3(a), 1208.3(a) 

(noting that an applicant must file an I– 

589 ‘‘in accordance with the 

instructions on the form’’); Form I–589, 

Application for Asylum and for 

Withholding of Removal, Instructions, 5 

(Sept. 10, 2019), https://www.uscis.gov/ 

sites/default/files/document/forms/i589instr.pdf (‘‘Your answers must be 

completed in English.’’). Moreover, 

existing regulations already require that 

foreign-language submissions be 

translated into English, see 8 CFR 

103.2(b)(3), 1003.33, so it is unclear how 

a non-English-speaking alien could 

submit evidence without a translator in 

any case. 

The Departments thus disagree that 

aliens would be unable to answer the 

questions on the Form I–589 with 

enough specificity to make a prima facie 

claim for relief or protection. The 

Departments further note that aliens 

whose applications are deficient will be 

able to provide additional argument or 

evidence in response to either DHS’s 

motion to pretermit or the judge’s sua 

sponte notice. See 8 CFR 1208.13(e) (as 

amended). Despite commenters’ 

concerns that this process is 

insufficient, this is the same process 

that is regularly used in immigration 

court, including other times when an 

alien’s ability to seek a particular form 

of relief may be foreclosed by DHS filing 

a motion to pretermit. 85 FR at 36277. 

Comment: Commenters stated that 

allowing immigration judges to 

pretermit applications would violate the 

duty of the immigration judge under the 

Act and the regulations to develop the 

record, particularly for cases where the 

alien appears pro se and for cases 

involving UACs. See, e.g., Jacinto v. 

I.N.S., 208 F.3d 725, 734 (9th Cir. 2000) 

(‘‘[U]nder the statute and regulations 

previously cited, and for the reasons we 

have stated here, immigration judges are 

obligated to fully develop the record in 

those circumstances where applicants 

appear without counsel... .’’). 

Response: Allowing immigration 

judges to pretermit and deny asylum 

applications that do not demonstrate a 

prima facie claim for relief or protection 

does not violate the immigration judge’s 

responsibility to develop the record. 

Instead, the rule comports with this 

duty by requiring immigration judges to 

provide notice and an opportunity to 

respond before pretermitting any 

application. Such notice should provide 

the parties with information regarding 

the judge’s concerns, and should elicit 

relevant information in response. 

Similarly, in the context of DHS 

motions to pretermit, the immigration 

judge would consider the alien’s 

response to the motion and may solicit 

additional information, if needed, for 

review. 

Comment: Commenters stated that 

pretermission conflicts with 

adjudication guidance in UNHCR’s 

Handbook on Procedures and Criteria 

for Determining Refugee Status, which 

provides that, ‘‘while the burden of 

proof in principle rests on the applicant, 

the duty to ascertain and evaluate all the 

relevant facts is shared between the 

applicant and the examiner. Indeed, in 

some cases, it may be for the examiner 

to use all the means at his disposal to 

produce the necessary evidence in 

support of the application.’’ UNHCR, 

Handbook On Procedures and Criteria 

for Determining Refugee Status, ¶ 196 

(1979) (reissued Feb. 2019), https://

www.unhcr.org/en-us/publications/ 

legal/5ddfcdc47/handbook-procedurescriteria-determining-refugee-statusunder-1951-convention.html. As a 

result, commenters stated that allowing 

immigration judges to pretermit and 

deny applications that do not 

demonstrate a prima facie claim does 

not meet the United States’ international 

obligations and does not align with 

congressional intent to follow the 

Refugee Convention. 

Response: Commenters’ reliance on 

guidance from UNHCR is misguided. 

UNHCR’s interpretations of (or 

recommendations regarding) the 

Refugee Convention and Protocol, 

including the UNHCR Handbook, are 

‘‘not binding on the Attorney General, 

the BIA, or United States courts.’’ INS 

v. Aguirre-Aguirre, 526 U.S. 415, 427 

(1999). ‘‘Indeed, the Handbook itself 

disclaims such force, explaining that 

‘the determination of refugee status 

under the 1951 Convention and the 

1967 Protocol . . . is incumbent upon 

the Contracting State in whose territory 

the refugee finds himself.’ ’’ Id. at 427– 

28 (citation and internal quotations 

omitted). Further, to the extent such 

guidance ‘‘may be a useful interpretative 

aid,’’ id. at 427, it would apply only to 

statutory withholding of removal, which 

is the protection that implements 

Article 33 of the Convention. Cf. R–S– 

C v. Sessions, 869 F.3d 1176, 1188, n.11 

(10th Cir. 2017) (explaining that ‘‘the 

Refugee Convention’s non-refoulement 

principle—which prohibits the 

deportation of aliens to countries where 

the alien will experience persecution— 

is given full effect by the Attorney 

General’s withholding-only rule’’). And 

although the rule would allow 

pretermission of Form I–589 

applications submitted for withholding 

of removal or CAT protection, such 

pretermission does not necessarily 

constrict or limit the population of 

aliens that may qualify for such 

protection. Instead, it simply provides 

an efficiency for the adjudication of 

those claims that do not demonstrate a 

baseline prima facie eligibility for relief. 

Comment: Commenters emphasized 

that the rule forces the entire eligibility 

decision to be based on the Form I–589 

and supporting documents, noting that 

this could be problematic if the 

applicant does not initially possess all 

of the necessary documentation. 

Commenters also claimed that 

pretermitting an application while the 

individual is still working to gather 

paperwork would be ‘‘grossly unfair’’ 

and contended that, if the rule is 

adopted, it must provide a ‘‘working 

period’’ after submission during which 

an application cannot be pretermitted. 

Commenters also noted that 

unrepresented individuals may have 

their applications terminated prior to 

finding representation who could help 

them supplement an application that 

was originally lacking or insufficient. 

Other commenters noted that there 

are many cases that initially appear to 

lack eligibility but later qualify for 

asylum after testimony is taken and 

additional facts are uncovered. 

Commenters referenced Matter of Fefe, 

20 I&N Dec. 116, and Matter of 

Mogharrabi, 19 I&N Dec. 443, noting 

that there are often discrepancies 

between the written and oral statements 

in an asylum application that can only 

be resolved through direct examination. 

Response: Commenters again appear 

to misstate the rule, to misunderstand 

the difference between issues of fact and 

issues of law, and to misunderstand the 

difference between a prima facie legal 

showing and a full consideration of the 

merits of a case. The rule requires 

simply a prima facie case for relief; it 

does not require that every factual 

assertion be supported by additional 

corroborative evidence. If the alien’s 

application for relief states sufficient 

facts that could support his or her claim 

for relief or protection, the immigration 

judge would not pretermit the 

application solely because some 

additional documentation is still being 

gathered.32 Accordingly, the 


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immutability and particularity requirements are not 

necessarily factbound—though they may be in 

discrete cases—and the failure of an alien to make 

a prima facie showing that a proposed particular 

social group consists of a characteristic that is 

immutable (or fundamental) or is defined with 

particularity may warrant pretermission of the 

claim in appropriate cases. 

33Commenters did not provide further 

explanation regarding how the rule allegedly 

violates section 240(b)(4)(B) of the Act (8 U.S.C. 

1229a(b)(4)(B)), which provides that: The alien shall 

have a reasonable opportunity to examine the 

evidence against the alien, to present evidence on 

the alien’s own behalf, and to cross-examine 

witnesses presented by the Government but these 

rights shall not entitle the alien to examine such 

national security information as the Government 

may proffer in opposition to the alien’s admission 

to the United States or to an application by the alien 

for discretionary relief under this chapter. This rule 

does not affect any procedures that relate to aliens’ 

rights under this provision of the INA, and, 

accordingly, the Departments need not respond 

further to this point. 

34Although the Sixth Amendment’s right to 

counsel does not apply in immigration proceedings, 

some courts have held that a constitutional right to 

counsel in immigration proceedings applies as part 

of the Fifth Amendment’s due process clause. See, 

e.g., Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 

2019) (‘‘Both Congress and our court have 

recognized the right to retained counsel as being 

among the rights that due process guarantees to 

petitioners in immigration proceedings.’’). 

Nevertheless, neither the proposed rule nor this 

final rule violates such a right to counsel as the rule 

does not amend any procedures related to an alien’s 

right to obtain counsel of his or her choosing at no 

government expense. 

35EOIR, Adjudication Statistics: Pending Cases 

(Apr. 15, 2020), https://www.justice.gov/eoir/page/ 

file/1242166/download (1,122,697 pending cases as 

of the second quarter of FY2020) 

36EOIR, Adjudication Statistics: Total Asylum 

Applications (Apr. 15, 2020), https://

www.justice.gov/eoir/page/file/1106366/download 

(120,495 asylum applications filed as of the second 

quarter of FY2020). 

Departments disagree that a minimum 

‘‘working period’’ before which an 

application may not be pretermitted is 

needed. 

Regarding applications that at first 

appear insufficient but are later 

bolstered through additional 

information, the Departments again 

emphasize that the rule provides the 

alien with the opportunity to respond to 

either the DHS motion or the judge’s 

notice regarding pretermission. The 

Departments expect that such a 

response would be used to provide 

additional information, which the 

immigration judge would consider prior 

to making any final determination 

regarding pretermission. Moreover, in 

both Matter of Fefe and Matter of 

Mogharrabi, there was no question 

about whether the alien had stated a 

prima facie claim. In the former, the 

immigration judge raised doubts over 

the alien’s credibility—not over the 

legal basis of the claim—that were not 

resolved because the alien did not 

testify. In the latter, the Departments see 

no indication that the alien could not 

have stated a prima facie claim. 

Finally, an immigration judge may 

only pretermit an application that is 

legally deficient. Thus, the gathering of 

additional facts that do not bear on the 

legal cognizability of the claim—for 

example, gathering the specific names of 

every speaker at a political rally—is not 

required by the rule to avoid 

pretermission. 

Comment: Commenters also criticized 

the 10-day notice period, claiming it is 

‘‘unreasonably short,’’ especially 

considering the COVID–19 pandemic. 

Response: The 10-day period is 

consistent with current EOIR practice, 

where it has worked well. See EOIR, 

Immigration Court Practice Manual at 

D–1 (July 2, 2020), https://

www.justice.gov/eoir/page/file/1258536/ 

download. The Departments disagree 

that the current COVID–19 situation 

affects the reasonableness of the 10-day 

deadline as filings can be submitted by 

mail and, in some locations, online. See 

EOIR, Welcome to the EOIR Courts & 

Appeals System (ECAS) Information 

Page, https://www.justice.gov/eoir/ 

ECAS. Further, if an immigration court 

location is unexpectedly closed on the 

day of the deadline, the deadline is 

extended until the immigration court 

reopens. See EOIR, PM 20–07: Case 

Management and Docketing Practices, 2 

n.1 (Jan. 31, 2020), https://

www.justice.gov/eoir/page/file/1242501/ 

download. Moreover, many nondetained hearings continue to be 

postponed due to COVID–19 rendering 

deadlines largely malleable until 

hearings resume. 

Comment: Commenters alleged that 

the rule would result in a higher rate of 

pretermission for unrepresented 

individuals because these applicants 

would be unfamiliar with the ‘‘magic 

language’’ needed to survive a motion to 

pretermit. As a result, commenters 

claimed that the rule violates the Fifth 

and Sixth Amendments, and 

concurrently violates section 

240(b)(4)(A) and (B) of the Act, 8 U.S.C. 

1229a(b)(4)(A) and (B).33

Response: Commenters are incorrect 

that the rule violates an alien’s right to 

counsel under section 240(b)(4)(A) of 

the Act, 8 U.S.C. 1229a(b)(4)(A), and the 

Sixth Amendment. First, section 

240(b)(4)(A) of the Act, 8 U.S.C. 

1229a(b)(4)(A), provides that aliens 

‘‘shall have the privilege of being 

represented, at no expense to the 

government, by counsel of the alien’s 

choosing who is authorized to practice 

in such proceedings.’’ No provision of 

this rule would limit an alien’s ability 

to obtain representation as provided by 

the INA. Second, the Sixth Amendment 

right to counsel does not apply in 

immigration proceedings, which are 

civil, not criminal, proceedings. See, 

e.g., Tawadrus v. Ashcroft, 364 F.3d 

1099, 1103 (9th Cir. 2004).34

Commenters are similarly incorrect 

that the rule violates the equal 

protection component of the Fifth 

Amendment’s Due Process Clause 

because unrepresented aliens will be 

more likely to have asylum applications 

pretermitted than similarly situated 

represented aliens. First, commenters’ 

concerns that the rule will have a 

disparate impact are speculative. 

Second, similar procedures in other 

civil proceedings—such as the summary 

decision procedures of 28 CFR 68.38 or 

summary judgment under the Federal 

Rules of Civil Procedure—do not violate 

the Fifth Amendment. Third, even if the 

commenters were correct that the rule 

has a discriminatory impact, the 

Departments find it would not violate 

the Fifth Amendment’s equal protection 

guarantee because the rule does not 

involve a suspect classification or 

burden any fundamental right. See 

Heller v. Doe, 509 U.S. 312, 319 (1993) 

(holding that ‘‘a classification neither 

involving fundamental rights nor 

proceeding along suspect lines is 

accorded a strong presumption of 

validity’’). 

Allowing the pretermission of 

applications would enhance judicial 

efficiency by no longer requiring a full 

hearing for applications that are legally 

deficient on their face. There continue 

to be record numbers of both pending 

cases before EOIR35 and asylum 

applications 36 filed annually. 

Accordingly, the Departments seek to 

most efficiently allocate EOIR’s limited 

adjudicatory capacity in order to decide 

cases in a timely manner, including 

granting relief to aliens with meritorious 

cases as soon as possible. Accordingly, 

there is at least a rational basis for 

allowing pretermission of asylum 

applications in this manner. Cf. 

DeSousa v. Reno, 190 F.3d 175, 184 (3d 

Cir. 1995) (‘‘[D]isparate treatment of 

different groups of aliens triggers only 

rational basis review under equal 

protection doctrine. . . . Under this 

minimal standard of review, a 

classification is accorded ‘a strong 

presumption of validity’ and the 

government has no obligation to 

produce evidence to sustain its 

rationality.’’ (internal citations 

omitted)). 

Comment: Commenters also alleged 

that the pretermission of asylum 

applications is incompatible with 

federally established pleading standards 


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37 85 FR 38532, 39547. 

38Casa de Maryland v. Wolf, No. 8:20–cv–02118– 

PX, 2020 WL 5500165, (D. Md. Sept. 11, 2020) 

(order granting preliminary injunction). 

and ‘‘would be an abrupt change from 

decades of precedent and practice 

before the immigration court.’’ 

Commenters provided a hypothetical 

chain of events to illustrate this alleged 

violation of pleading standards and 

cited to Braden v. Wal-Mart Stores, Inc., 

588 F.3d 585, 594 (8th Cir. 2009) (citing 

Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) and Bell Atl. Corp. v. Twombly, 

550 U.S. 554, 556 (2007)). 

Response: The Federal Rules of Civil 

Procedure do not apply in immigration 

court. See Fed. R. Civ. P. 81 (setting out 

the applicability of the rules); see also 

8 CFR part 1003, subpart C (setting out 

the immigration court rules of 

procedure). Accordingly, commenters’ 

reliance on cases that interpret Rule 8(a) 

of the Federal Rules of Civil Procedure 

are not applicable to immigration court. 

Moreover, the commenters’ comparisons 

to a pleading standard are inaccurate as 

the decision to pretermit an application 

is akin to a summary judgment decision, 

not a pleading determination. Cf. F.R. 

Civ. P. 56 (‘‘The court shall grant 

summary judgment if the movant shows 

that there is no genuine dispute as to 

any material fact and the movant is 

entitled to judgment as a matter of 

law.’’). In order to ensure the 

immigration judge has as much 

information as possible about the 

underlying claim, the rule ensures the 

applicant has the opportunity to 

respond to the possible pretermission of 

his or her application, either as a 

response to a DHS motion to pretermit 

or a response to the immigration judge’s 

notice of possible pretermission. 

Comment: Commenters contended 

that the rule, in combination with the 

Immigration Court Performance Metrics, 

incentivizes immigration judges to 

pretermit asylum applications in order 

to fulfill case completion requirements. 

Response: The Departments strongly 

disagree with the commenters’ 

underlying premise, namely that 

immigration judges are unethical or 

unprofessional and decide cases based 

on factors other than the law and the 

facts of the cases. Immigration judges 

exercise ‘‘independent judgment and 

discretion’’ in deciding cases, 8 CFR 

1003.10, and are expected to ‘‘observe 

high standards of ethical conduct, act in 

a manner that promotes public 

confidence in their impartiality, and 

avoid impropriety and the appearance 

of impropriety in all activities,’’ EOIR, 

Ethics and Professionalism Guide for 

Immigration Judges at 1 (2011), https:// 

www.justice.gov/sites/default/files/eoir/ 

legacy/2013/05/23/Ethicsand

ProfessionalismGuideforIJs.pdf. Further, 

it is well-established that ‘‘[t]he 

administrative process is entitled to a 

presumption of regularity,’’ Int’l Long 

Term Care, Inc. v. Shalala, 947 F. Supp. 

15, 21 (D.D.C. 1996), and commenters 

provide no evidence for the bald 

assertion that immigration judges will 

ignore applicable law and the evidence 

in each case simply in order to pretermit 

the case. See also United States v. 

Chemical Found., 272 U.S. 1, 14–15 

(1926) (‘‘The presumption of regularity 

supports the official acts of public 

officers, and, in the absence of clear 

evidence to the contrary, courts 

presume that they have properly 

discharged their official duties.’’). To 

the contrary, in FY 2019, the first full 

FY after immigration judge performance 

measures went into effect, not only did 

most non-supervisory immigration 

judges working the full year meet the 

case completion measure without any 

difficulty, see EOIR, Executive Office for 

Immigration Review Announces Case 

Completion Numbers for Fiscal Year 

2019, https://www.justice.gov/opa/pr/ 

executive-office-immigration-reviewannounces-case-completion-numbersfiscal-year-2019, but complaints of 

immigration judge misconduct actually 

declined slightly from the prior FY, see 

EOIR, Adjudication Statistics: 

Immigration Judge Complaints, https:// 

www.justice.gov/eoir/page/file/1104851/ 

download, even though the total number 

of immigration judges increased 12 

percent, see EOIR, Adjudication 

Statistics: Immigration Judge Hiring, 

https://www.justice.gov/eoir/page/file/ 

1242156/download. 

Allowing pretermission of Form I–589 

applications that do not establish a 

prima facie claim for relief or protection 

under the law provides immigration 

judges with a mechanism to improve 

court efficiency by clarifying that there 

need not be a full merits hearing on 

those cases that present no legal 

questions for review, allowing them to 

devote more time to cases in which facts 

are at issue. There is no basis for the 

assumption that the rule would 

inappropriately incentivize immigration 

judges to pretermit applications solely 

to fulfill case-completion goals. As 

noted, supra, some immigration judges 

already pretermit legally deficient 

applications, and the Departments are 

unaware of any link between that action 

and performance metrics; in fact, 

immigration judges have pretermitted 

legally deficient asylum applications 

since at least 2012, Matter of 

E–F–H–L–, 26 I&N Dec. 319 (BIA 2014), 

which was several years before 

performance measures were 

implemented. 

Moreover, assuming, arguendo, there 

were such an incentive, it would be 

counter-balanced by the performance 

measure for an immigration judge’s 

remand rate. In other words, an 

immigration judge who improperly 

pretermitted applications in violation of 

the law solely in order to complete more 

cases would have those cases remanded 

by the Board on appeal which, in turn, 

would cause the immigration judge’s 

remand rate to exceed the level set by 

the performance measures. In short, 

there is no legal, factual, or logical 

reason to believe that codifying an 

immigration judge’s authority to 

pretermit legally deficient applications 

and the existence of immigration judge 

performance evaluations will 

incentivize immigration judges to 

violate the law in their decision making. 

Comment: Commenters emphasized 

that asylum applications are governed 

by the law at the time of adjudication 

rather than the time of filing and 

expressed concern that the 

pretermission of applications for lack of 

a prima facie showing of eligibility 

forces immigration judges and asylum 

officers to become ‘‘soothsayers.’’ 

Response: Allowing immigration 

judges to pretermit and deny 

applications that do not present a prima 

facie claim for relief or protection does 

not conflict with this point. If the judge 

determines that pretermission is 

appropriate, that decision would be 

based on the law and regulations in 

place at that point, and the decision to 

pretermit is the adjudication of the 

application. 

Comment: Commenters questioned 

the effect the rule will have on the 

asylum clock, especially if a decision 

affecting eligibility is abrogated by a 

higher court after an application was 

filed and pretermitted; one commenter 

expressed concern that the rule does not 

specify ‘‘when in the process DHS or the 

judge can move.’’ One commenter 

emphasized that ‘‘[a]ny final rule which 

is eventually published should consider 

how the asylum clock will operate, and 

should provide clear instructions which 

attorneys and their clients can rely on.’’ 

Response: The Departments note that 

USCIS recently published a final rule, 

Asylum Application, Interview, and 

Employment Authorization for 

Applicants, that eliminates the asylum 

clock.37 However that rule is currently 

the subject of ongoing litigation and 

portions of the rule are subject to a 

preliminary injunction, as applied to 

two plaintiff organizations.38

Regardless, as stated in the proposed 

rule, an immigration judge who 


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39The Departments note that DOJ has also 

recently taken steps to improve adjudicatory 

efficiency at the BIA. See EOIR, Case Processing at 

the Board of Immigration Appeals (Oct. 1, 2019), 

https://www.justice.gov/eoir/page/file/1206316/ 

download. 

determines that an asylum application 

that fails to demonstrate prima facie 

eligibility for relief or protection under 

applicable law may ‘‘pretermit and 

deny’’ such application. See 8 CFR 

1208.13(e). Accordingly, a decision to 

pretermit and deny would have the 

same asylum clock effects as any other 

denial of an asylum application by the 

immigration judge. 

Comment: Commenters alleged that 

the rule would greatly decrease 

efficiency in the asylum process, as the 

number of cases in which a hearing is 

denied would ‘‘skyrocket’’ and the 

majority of these respondents would 

appeal to the BIA. Commenters noted 

the BIA’s current backlog and the 

increased delay in issuing briefing 

schedules and decisions. 

Response: Allowing immigration 

judges to pretermit and deny asylum 

applications that do not demonstrate a 

prima facie claim for relief or protection 

will increase, not decrease, efficiencies 

for DOJ. Commenters’ predictions of 

how many cases will be pretermitted 

under these changes are speculation, as 

the Departments do not have data on the 

underlying bases for denials currently, 

which would be required to accurately 

predict how many might be pretermitted 

in the future. Moreover, as fewer than 

20 percent of asylum applications are 

granted even with a full hearing, see 

EOIR, Asylum Decision Rates, https://

www.justice.gov/eoir/page/file/1248491/ 

download, and many of the ones not 

granted are appealed already, there is 

likely to be little operational impact on 

the BIA.39 In contrast, pretermitting 

legally deficient claims will improve 

efficiency for immigration courts by 

allowing immigration judges to screen 

out cases that do not demonstrate prima 

facie eligibility and, thus, allowing 

potentially meritorious applications to 

progress more expeditiously to 

individual hearings. 

Comment: One commenter noted that 

there are particular signatures on the 

asylum application which can only be 

signed by the applicant at the final 

hearing and claimed that pretermission 

is ‘‘non-sensical’’ because the 

application will not yet be complete. 

Response: The Departments disagree 

with commenters’ concerns that asylum 

applications may not be pretermitted 

because a signature is required by the 

applicant at the final hearing. The 

Departments believe that the 

commenters are referring to the 

signature in Part G of the Form I–589, 

which is most often signed by the alien 

at the beginning of the merits hearing on 

the alien’s asylum application and in 

which the alien swears that the 

application’s contents are true and 

acknowledges the consequences of 

submitting a frivolous application. 

Accordingly, the signature in Part G of 

the Form I–589 is related to a possible 

frivolousness finding and the attendant 

consequences. 

Moreover, for the purposes of 

determining whether to pretermit an 

application, whether or not the 

immigration judge has had the applicant 

sign in Part G, the applicant signs in 

Part D at the time the application is 

completed. The signature in Part D is 

the alien’s certification under penalty of 

perjury that the application and any 

evidence submitted with it are ‘‘true and 

correct,’’ in addition to another notice of 

the consequences of filing a frivolous 

application and other activities. Given 

the alien’s signature in Part D that the 

application is ‘‘true and correct,’’ the 

Departments believe that the application 

is sufficient for the purposes of possible 

pretermission even without a signature 

in Part G. 

Comment: Commenters stated that 

allowing pretermission will inevitably 

violate the confidentiality obligations 

for asylum applicants, speculating that 

the immigration judge, alien, and DHS 

counsel will engage in inappropriate 

conversations regarding the specifics of 

an asylum application in front of other 

people during master calendar hearings. 

Response: With few exceptions, most 

immigration hearings are open to the 

public. 8 CFR 1003.27. Regulations 

further note that ‘‘[e]videntiary hearings 

on applications for asylum or 

withholding of removal will be open to 

the public unless the alien expressly 

requests that the hearing be closed.’’ 8 

CFR 1240.11(c)(3)(i). A master calendar 

hearing is not an evidentiary hearing. 

See Immigration Court Practice Manual, 

ch. 4.15(a), https://www.justice.gov/eoir/ 

page/file/1258536/download (‘‘Master 

calendar hearings are held for pleadings, 

scheduling, and other similar matters.’’). 

Further, an evidentiary hearing is 

designed to ‘‘resolve factual matters in 

dispute,’’ 8 CFR 1204.11(c)(3), which 

would necessarily exclude such a 

hearing from the ambit of pretermission. 

Accordingly, there is no reason that the 

specifics of an asylum application 

would be discussed at a master calendar 

hearing, and even if they were, an 

immigration judge may close the 

courtroom as appropriate to protect the 

parties. 8 CFR 1003.27(b). 

Comment: Commenters noted that the 

Departments are required to comply 

with Executive Orders 12866 and 13653, 

which together direct agencies to 

evaluate the costs and benefits of 

alternative methods and to select the 

approach that maximizes net benefits. 

Commenters contended that the rule is 

‘‘wholly unconcerned’’ with calculating 

the costs and benefits of the 

pretermission of asylum applications or 

reducing costs to Federal government 

agencies. 

In particular, commenters expressed 

concern about costs of the rule possibly 

eliminating what the commenters 

referred to as the current, more flexible 

‘‘redlining’’ procedure in favor of 

pretermission. The commenters 

explained that ‘‘redlining’’ allows the 

alien to update and edit the asylum 

application after it is filed ‘‘up until the 

point of decision.’’ 

Commenters disagreed that the rule 

will create efficiencies, arguing instead 

that the rule will ‘‘increase 

administrative burden, expense, and 

processing time by effectively creating 

two distinct opportunities for appeals to 

the BIA, including: (1) Appeal from the 

IJ’s decision to pretermit; and (2) appeal 

on the merits after the IJ’s decision to 

pretermit is overturned.’’ 

Response: The Office of Information 

and Regulatory Affairs, in conducting its 

review of the proposed rule, concluded 

that the Departments complied with 

Executive Orders 12866 and 13653, as 

set out in section V.D of the proposed 

rule. 85 FR at 36289–90. The 

Departments’ consideration included all 

provisions of the proposed rule, 

including the changes to 8 CFR 1208.13 

regarding pretermission of applications. 

Further, as stated above, the 

Departments emphasize that allowing 

pretermission of applications will 

increase efficiencies by allowing 

immigration judges to complete the 

adjudication of certain legally 

insufficient asylum applications earlier 

in the process, which in turn leaves 

additional in-court adjudication time 

available for those applications that may 

be meritorious. This change would not 

prevent aliens from amending or 

updating applications that are pending 

a decision by the immigration judge, 

including a decision on pretermission. 

In addition, the Departments dispute the 

commenters’ assumption that 

immigration judge decisions to 

pretermit an application will be 

overturned. Immigration judges apply 

the immigration laws and would only 

pretermit applications that fail to 

demonstrate a prima facie case for 

eligibility for relief—in other words, 

that the application could be sufficient 

to establish eligibility for relief. 

Applications that are facially deficient 


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40As an initial matter, the Departments note that 

commenters’ discussion on these points often 

referred solely to asylum claims. Where relevant, 

however, the Departments have also considered the 

comments in regards to statutory withholding of 

removal. 

in this manner would not comply with 

the applicable law and regulations, and, 

as such, the Departments would not 

expect such decisions to be overturned 

on appeal. 

4. Standards for Consideration During 

Review of an Application for Asylum or 

for Statutory Withholding of Removal 40

4.1. Membership in a Particular Social 

Group 

Comment: One organization noted 

generally that the rule denies asylum to 

individuals fleeing violence and 

persecution. Commenters noted that the 

inclusion of ‘‘particular social group’’ in 

the statute was designed to create 

flexibility in the refugee definition so as 

to capture individuals who do not fall 

within the other characteristics 

enumerated in section 101(a)(42) of the 

INA, 8 U.S.C. 1101(a)(42), and to ensure 

that the United States provides 

protection in accordance with its treaty 

obligations. Commenters argued that the 

rule’s narrowing of particular social 

group has been rejected by the Federal 

courts as contrary to congressional 

intent to align U.S. refugee law with the 

Convention relating to the Status of 

Refugees and its 1967 Protocol. See 

Flynn v. Sec’y of Health, Ed. & Welfare, 

344 F. Supp. 94, 96 (E.D. Wis. 1972). 

Another organization stated that, by 

denying the most common grounds of 

particular social group membership, the 

rule ‘‘abridges U.S. obligations under 

the Refugee Convention . . . which 

affords asylum seekers the opportunity 

to explain why they fit into a protected 

group.’’ The organization also claimed 

that the rule breaches the United States’ 

commitment to nonrefoulement, noting 

that the United States has committed 

itself to this principle as a party to the 

Refugee Protocol, the CAT, and 

customary international law. 

Commenters emphasized a quote from 

the UNHCR stating that ‘‘[t]he term 

membership of a particular social group 

should be read in an evolutionary 

manner.’’ 

Another organization noted that while 

the phrase ‘‘particular social group’’ in 

the Refugee Convention does not apply 

to every person facing persecution, the 

Convention requires only that a social 

group not be ‘‘defined exclusively by 

the fact that it is targeted for 

persecution.’’ According to the 

Convention, ‘‘the actions of the 

persecutors may serve to identify or 

even cause the creation of a particular 

social group in society.’’ As a result, the 

organization contended that the 

Convention allows particular social 

groups that do not exist independently 

of the persecution. 

The organization claimed the NPRM 

takes the opposite approach, defining 

‘‘circular’’ not only as particular social 

groups exclusively defined by 

persecution but also as those that do not 

exist independently of the persecution 

claim. The organization noted that, in 

doing so, the NPRM seeks to adopt the 

circularity analysis in Matter of A–B–, 

27 I&N Dec. 316, which treats any group 

partially defined by the persecution of 

its members as circular. The 

organization alleged that this 

interpretation of circularity is a 

‘‘dramatic departure’’ from longstanding 

precedent, noting that the courts of 

appeals have held that a particular 

social group is not circular unless it is 

defined ‘‘entirely’’ by persecution. The 

organization claimed that the 

Departments do not acknowledge or 

justify this ‘‘departure,’’ which makes 

the rule arbitrary. The organization also 

claimed that the Federal appellate cases 

cited in the rule have the same effect. In 

addition, the organization emphasized 

that the BIA has long accepted 

particular social groups with references 

to the persecution bringing asylum 

seekers to the United States. 

One organization claimed the rule’s 

requirement that the cognizable group 

must exist independently from the 

persecution abrogates the following 

specific particular social groups already 

recognized by circuit courts: Former 

gang members, Arrazabal v. Lynch, 822 

F.3d 961 (7th Cir. 2016); former 

members of the Kenyan Mungiki, Gatimi 

v. Holder, 578 F.3d 611 (7th Cir. 2009); 

defected KGB agents, Koudriachova v. 

Gonzales, 490 F.3d 255 (2d Cir. 2007); 

young Albanian women targeted for 

prostitution, Cece v. Holder, 733 F.3d 

662 (7th Cir. 2013) (en banc); former 

child guerilla soldiers in Uganda, 

Lukwago v. Ashcroft, 329 F.3d 157 (3d 

Cir. 2003); individuals targeted by 

Pakistani terrorist groups, Rehman v. 

Att’y Gen. of U.S., 178 F. App’x 126 (3d 

Cir. 2006), and the Taliban, Khattak v. 

Holder, 704 F.3d 197 (1st Cir. 2013); and 

Ghanaians returning from the United 

States, Turkson v. Holder, 667 F.3d 523 

(4th Cir. 2012). 

Another organization claimed that, 

under international guidelines, the 

‘‘common characteristic’’ and ‘‘socially 

visible’’ elements of a particular social 

group are meant to be ‘‘disjunctive,’’ 

requiring proof of either one or the 

other. The organization also alleged that 

the ‘‘particularity’’ requirement is 

unfounded, noting that, according to 

UNHCR, the size of the group is 

irrelevant in determining whether a 

particular social group exists. 

Similarly, one organization noted that 

the rule would require a particular 

social group to be ‘‘defined with 

particularity’’ and ‘‘recognized as 

socially distinct in the society at 

question,’’ claiming that the NPRM fails 

to provide any reason for codifying 

these standards. The organization 

alleged that the particularity and social 

distinction requirements ‘‘cut across’’ 

each other, noting the BIA’s 

interpretation that an asylum seeker 

‘‘identify a group that is broad enough 

that the society as a whole recognizes it, 

but not so broad that it fails 

particularity’’ and claiming that this has 

caused the BIA to essentially end 

asylum grants based on particular social 

groups that have not been previously 

approved. 

Multiple commenters called the rule 

‘‘unwise and discriminatory.’’ 

Commenters alleged that the rule is 

designed to prevent individuals from 

Central America from receiving asylum 

and claimed that the rule evidences the 

Departments’ intent to prevent ‘‘whole 

classes of persons’’ from claiming 

asylum based simply on ‘‘the macrolevel characteristics of their country of 

origin.’’ One organization representing 

DHS employees criticized the 

Departments for creating a rule based on 

the belief that asylum seekers are 

engaging in ‘‘gamesmanship’’ within the 

United States legal system, a premise, 

the organization claimed, that is 

‘‘contrary to our experiences as 

adjudicators.’’ The organization stated 

that several of the social groups ‘‘slated 

for dismissal’’ in the rule ‘‘encompass a 

wide cross-section of potentially 

successful asylum claims.’’ The 

organization also alleged that the rule 

creates a ‘‘rebuttable presumption’’ that 

asylum claims based on any of the 

‘‘broadly enumerated particular social 

groups’’ are insufficient unless ‘‘more’’ 

is provided, but claimed the rule fails to 

define what is actually needed for a 

successful claim. 

Another organization alleged that the 

NPRM’s proposal would violate due 

process, claiming that the private 

interest at stake—preventing the 

violence or torture that would occur due 

to refoulement—is ‘‘the most weighty 

interest conceivable.’’ The organization 

contended that the government’s 

countervailing interest is ‘‘nonexistent’’ 

due to the NPRM’s silence, also alleging 

that ‘‘working with pro se asylum 

seekers’’ imposes a minimal burden on 

the government. 


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One organization claimed that the 

adjudication of asylum applications has 

become ‘‘increasingly politicized’’ over 

the past three years through the 

Attorney General’s self-certification of 

cases. The commenter noted that the 

Attorney General has issued nine 

decisions in the past three years that 

restrict eligibility of relief for 

noncitizens (with four additional selfcertified decisions pending), while only 

four precedential decisions were issued 

during the eight years of the previous 

administration. The organization stated 

that, rather than clarifying existing 

definitions, the rule ‘‘virtually 

eliminates particular social group as a 

basis for asylum.’’ 

One organization emphasized that if 

the Departments choose to codify the 

prerequisites to particular social groups 

as stated in the rule, they must 

‘‘consider all reasonable alternatives 

presented to’’ them. Multiple 

organizations suggested the 

Departments adopt the Matter of Acosta 

standard for the analysis of particular 

social group claims, meaning that 

‘‘particular social group’’ should be 

interpreted consistently with the other 

four protected characteristics laid out in 

the INA. 19 I&N Dec. 211, 233 (BIA 

1985), abrogated in part on other 

grounds by Matter of Mogharrabi, 19 

I&N Dec. 439 (BIA 1987). One 

organization emphasized that this 

definition is simple, straightforward, 

and could be understood by pro se 

asylum seekers. 

Another organization alleged that the 

Departments failed to consider adopting 

the UNHCR definition of particular 

social group, which includes both 

immutability and the basic requirement 

that the group ‘‘be perceived as a group 

by society.’’ The organization contended 

that this standard, like the Matter of 

Acosta definition, is reasonable, 

emphasizing that it remains 

‘‘significantly closer to the other 

grounds for asylum in the INA’’ than the 

Departments’ proposal. 

One organization expressed concern 

that the rule would codify the 

‘‘restrictive definition’’ of particular 

social group announced in Matter of M– 

E–V–G–, 26 I&N Dec. 227, 237 (BIA 

2014), noting that the rule shortens the 

definition set forth in Matter of Acosta. 

The organization also contended that 

the rule misconstrues the concept of 

particular social group by inserting 

unrelated legal issues into the 

definition, which the organization 

believes would lead to greater confusion 

for all parties involved. The 

organization emphasized that each 

particular social group claim should be 

evaluated on a ‘‘case-by-case basis’’ 

instead of being subjected to general 

rules that would result in ‘‘blanket 

denials.’’ Another organization stated 

that the Attorney General’s own 

decision in Matter of A–B–, 27 I&N Dec. 

316, is based on the necessity of a 

‘‘detailed, case-specific analysis of 

asylum claims’’ and highlights the BIA’s 

previous errors in ‘‘assessing the 

cognizability of a social group without 

proper legal analysis.’’ One organization 

asserted that the rule appears to codify 

the wrongly-decided Matter of W–Y–C– 

& H–O–B–, 27 I&N Dec. 189 (BIA 2018), 

and ‘‘takes those restrictions even 

further.’’ 

Another organization emphasized that 

the circuit courts have disagreed on ‘‘at 

least a portion’’ of the definition of 

particular social group. One 

organization noted that elements of the 

rule’s proposed definition have met an 

‘‘uneven fate’’ in the courts of appeals, 

with many courts finding at least one of 

the provisions inconsistent with the 

statutory text. Another organization 

contended that the circuit courts cannot 

be ‘‘overruled’’ by either this rule or 

‘‘the Attorney General’s attempt to 

devise a new definition of ‘particular 

social group’ that intends to cut off 

certain claims’’ that have been 

previously recognized by the circuit 

courts and the BIA. One organization 

noted that, while the NPRM states in its 

first footnote that agencies have the 

authority to re-interpret ambiguous 

statutory phrases, it fails to explain how 

the definitions at issue arise from an 

ambiguous term. Another organization 

claimed that until the Supreme Court 

resolves the disagreements surrounding 

the particular social group definition, 

the Departments have no authority to 

‘‘overrule’’ the circuit courts’ 

interpretation of this term. 

Another organization alleged that the 

rule would ‘‘carve out’’ a laundry list of 

particular social groups toward which 

the administration has shown 

‘‘pervasive, unlawful hostility’’ without 

any effort to ground these exceptions in 

the Departments’ statutory authority, 

claiming this is a violation of the 

Administrative Procedure Act (‘‘APA’’). 

One organization contended that ‘‘[t]he 

use of such brazen ipse dixit without 

more renders each entry on the list 

arbitrary,’’ also claiming that this 

impedes the Departments’ goal of 

consistency. The organization claimed 

the Departments failed to consider 

whether their ‘‘laundry list’’ of 

generally-barred particular social groups 

would result in the erroneous denial of 

meritorious claims. 

Commenters claimed that one of the 

‘‘most unfair’’ aspects of the rule is that 

it would require asylum seekers to state 

every element of a particular social 

group with exactness before the 

immigration judge. Commenters 

expressed particular concern with the 

portion of the rule stating that a failure 

to define a formulation of a particular 

social group before a judge constitutes a 

waiver of any such claim under the Act, 

including on appeal. One organization 

noted that this portion of the rule would 

disproportionately impact 

unrepresented asylum seekers, 

particularly those subjected to MPP, and 

would ‘‘forever punish asylum seekers 

who were the victims of ineffective 

assistance of counsel.’’ 

Another organization alleged that the 

combination of performance goals and 

interminable dockets will result in ‘‘the 

demise of due process in Immigration 

Court for pro se litigants.’’ The 

organization noted the importance of 

the ‘‘motions practice’’ in a legal system 

that is committed to due process, 

emphasizing the long-standing practice 

of allowing motions to reopen in the 

context of ineffective assistance of 

counsel. Another organization stated 

that, over the past five years, between 15 

percent and 24 percent of all asylum 

seekers have been unrepresented by 

counsel, emphasizing that these 

individuals do not have training in 

United States asylum law, often speak 

little to no English, and are unfamiliar 

with the intricate rules surrounding 

particular social groups. One 

organization expressed specific concern 

for refugees. Another organization 

claimed that the rule provides no 

reasoning for its ‘‘expansion of the 

punitive effect of waiver to encompass 

ineffective assistance claims,’’ claiming 

this is against public policy and is also 

arbitrary and capricious; at least one 

other organization emphasized this 

point as well. 

One organization expressed particular 

concern for members of the LGBTQ 

community, emphasizing that, due to 

the nature of the ‘‘coming out and 

transitioning process,’’ the formulation 

of a particular social group may change 

over time, also noting that a refugee may 

not know right away that he or she is 

HIV positive. The organization claimed 

that the rule, ‘‘disregards the reality of 

LGBTQ lives’’ and will cause LGBTQ 

asylum seekers to be sent back to danger 

merely because they were unable to 

‘‘come up with the right verbiage to 

describe the complicated process of 

coming out and transitioning.’’ The 

organization claimed this issue is 

exacerbated by the fact that many of 

these individuals are unrepresented and 

do not speak English. Another 

organization noted that the INA requires 

exceptions to the one-year filing 


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41One commenter questioned the accuracy of the 

Departments’ citation to and characterization of 

Grace II’s underlying case, Grace I, 344 F. Supp. 3d 

at 146, because, according to the commenter, the 

case stated that the Attorney General could ‘‘not 

propose a general rule that a particular social group 

will not qualify for asylum’’ and did ‘‘not reach the 

question of whether the Attorney General could 

propose a general rule that a particular group does 

qualify for asylum.’’ Irrespective of the commenter’s 

characterization of the Departments’ citation, the 

D.C. Circuit recently reversed the district court 

regarding its statements that the agency action 

contested in that litigation improperly established 

a categorical bar against recognizing a specified 

particular social group. Grace II, 965 F.3d at 906. 

Specifically, the court determined that the 

Departments’ use of the term ‘‘generally’’ 

demonstrated that the Departments had not 

imposed a categorical rule against finding the 

particular social group at issue in that litigation. Id. 

Similarly, the Departments here have set forth a list 

of particular social groups that ‘‘generally, without 

more’’ will not be cognizable, but have specifically 

recognized that the regulation does not foreclose 

that, in rare circumstances, such facts could be the 

basis for finding a particular social group, given the 

fact- and society specific nature of this 

determination.’’ 85 FR at 36279. 

deadline for ‘‘changed and 

extraordinary circumstances,’’ INA 

208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D), 

emphasizing that this is particularly 

important for this category of asylum 

seekers. 

One organization claimed the rule 

would make it especially difficult for 

African asylum seekers to qualify for 

asylum based on particular social group 

membership. The organization also 

expressed concern for women survivors 

of female genital cutting (‘‘FGC’’), 

alleging that these individuals would 

not know to include this fact as part of 

a gender-based particular social group 

claim. The organization claimed it 

would be ‘‘a miscarriage of justice’’ to 

preclude these women from presenting 

claims. 

One organization alleged that the rule 

would make it ‘‘almost impossible’’ for 

children, particularly those from Central 

America or Mexico, to obtain asylum 

protection based on membership in a 

particular social group. The 

organization alleged that the rule’s 

barring of a particular social group 

claim that was not initially raised in the 

asylum application (or in the ‘‘record’’ 

before an immigration judge) raises 

‘‘serious due process concerns’’ for 

children, as many of the children 

arriving in the United States have 

suffered immense trauma and may not 

be able to discuss their experiences for 

quite some time. The organization 

expressed particular concern for 

unaccompanied children, noting they 

are often unable to discuss the harm 

they experienced in their home country 

until they have spent time with a 

trusted adult. The organization noted 

that, for many children, the asylum 

process is the first time they ever 

discuss their experiences, claiming the 

rule ‘‘is unrealistic and an untenable 

burden for most children.’’ 

Commenters also stated that an 

asylum seeker’s life should not depend 

on his or her ‘‘ability to expertly craft 

arguments in the English language in a 

way that satisfies highly technical legal 

requirements.’’ One organization stated 

that ‘‘[a]pplying for asylum is not a 

word game; asylum seekers’ lives are on 

the line with every application that an 

adjudicator decides.’’ Multiple 

commenters claimed that asylum 

officers and immigration judges have a 

duty to help develop the record. One 

organization stated that the Departments 

should rely on the decisions of EOIR 

and Article III courts rather than on the 

expertise of asylum seekers. Finally, one 

organization expressed concern that this 

portion of the rule contains no 

exceptions for minors or individuals 

who are mentally ill or otherwise 

incompetent, stating that holding these 

respondents to this kind of legal 

standard violates their rights under the 

Rehabilitation Act. See 29 U.S.C. 794; 

see also Franco-Gonzales v. Holder, 767 

F. Supp. 2d 1034 (C.D. Cal. 2010). 

Response: The Departments disagree 

with general comments that the rule 

would deny asylum to all individuals 

fleeing violence and persecution. The 

Departments note that asylum 

protection is not available to every 

applicant who is fleeing difficult or 

dangerous conditions in his or her home 

country. To qualify for asylum, an 

applicant must demonstrate, among 

other things, that the feared persecution 

would be inflicted ‘‘on account of’’ a 

protected ground, such as membership 

in a particular social group. See INA 

101(a)(42), 8 U.S.C. 1101(a)(42) 

(defining ‘‘refugee’’ as a person who, 

inter alia, has suffered ‘‘persecution or 

a well-founded fear of persecution on 

account of . . . membership in a 

particular social group’’). Even 

accepting that the term ‘‘particular 

social group’’ was intended to create 

flexibility in the refugee definition, the 

contours of that flexible term are clearly 

ambiguous and within the purview of 

the Departments to decide. See, e.g., 

Matter of A–B–, 27 I&N Dec. at 326 (‘‘As 

the Board and the Federal courts have 

repeatedly recognized, the phrase 

‘membership in a particular social 

group’ is ambiguous.’’ (collecting 

cases)). Accordingly, the Departments 

are establishing clear guidelines for 

adjudicators and parties regarding the 

parameters of particular-social-group 

claims. The Departments believe that 

such guidelines will promote a more 

uniform approach towards adjudicating 

such claims. This will not only aid 

adjudicators in applying a more uniform 

standard, but will also aid parties such 

that they may have a clearer 

understanding of how they may prevail 

on a particular social group claim as 

they develop their applications. 

The Departments disagree that the 

proposed changes to particular-socialgroup claims violate the Act, case law, 

or the due process rights of immigrants. 

As noted in the NPRM, Congress has not 

defined the term ‘‘membership in a 

particular social group.’’ See 85 FR at 

36278; see also Grace II, 965 F.3d at 888 

(‘‘The INA nowhere defines ‘particular 

social group.’ ’’).41 Additionally, despite 

commenters’ contentions that the 

Convention Relating to the Status of 

Refugees (‘‘Refugee Convention’’), July 

28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 

150, or the related Refugee Protocol 

offers guidance on the matter, the term 

is not defined in either of those 

instruments. 85 FR at 36278; see also 

Matter of A–B–, 27 I&N Dec. at 326, n.5 

(‘‘The Protocol offers little insight into 

the definition of ‘particular social 

group,’ which was added to the Protocol 

‘as an afterthought.’ ’’) (quoting Matter of 

Acosta, 19 I&N Dec. at 232)). 

The Board has noted that the term 

‘‘particular social group’’ is both 

ambiguous and difficult to define. 

Matter of M–E–V–G–, 26 I&N Dec. at 230 

(‘‘The phrase ‘membership in a 

particular social group,’ which is not 

defined in the Act, the Convention, or 

the Protocol, is ambiguous and difficult 

to define.’’). Moreover, the Board has 

also recognized that prior approaches to 

defining the term have led to confusion 

and inconsistency, warranting further 

evaluation. As the Board stated in M–E– 

V–G–: 

Now, close to three decades after Acosta, 

claims based on social group membership are 

numerous and varied. The generality 

permitted by the Acosta standard provided 

flexibility in the adjudication of asylum 

claims. However, it also led to confusion and 

a lack of consistency as adjudicators 

struggled with various possible social groups, 

some of which appeared to be created 

exclusively for asylum purposes. . . . In 

Matter of R–A–, 22 I&N Dec. 906, 919 (BIA 

1999; A.G. 2001), we cautioned that ‘‘the 

social group concept would virtually 

swallow the entire refugee definition if 

common characteristics, coupled with a 

meaningful level of harm, were all that need 

be shown.’’ 

Id. at 231 (footnote omitted). 

Consequently, the inherently case-bycase nature of assessing the 

cognizability of a particular social 

group, the lack of a clear definition of 

the term and its consideration through 

an open-ended and largely subjective 


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42One commenter also suggests that the 

Departments cited Cordoba, 726 F.3d 1106, with a 

‘‘glaring omission.’’ The commenter suggests that 

Cordoba acknowledges that the term ‘‘particular 

social group’’ is ambiguous, but asserts that the 

Departments fail to recognize that the case goes on 

to ‘‘clear up that ambiguity.’’ The Departments need 

not delve further into this analysis, which is 

refutable for various reasons, other than to state that 

the case plainly supports the proposition that the 

term ‘‘particular social group’’ is ambiguous and 

that such ambiguities are left to the Departments to 

clarify pursuant to agency authority. Chevron, 467 

U.S. at 845 (‘‘Once [the court] determined, after its 

own examination of the legislation, that Congress 

did not actually have an intent regarding the 

applicability of the bubble concept to the permit 

program, the question before it was not whether in 

its view the concept is ‘inappropriate’ in the general 

context of a program designed to improve air 

quality, but whether the [agency’s] view that it is 

appropriate in the context of this particular program 

is a reasonable one.’’). 

lens by adjudicators, and the potential 

for confusion and inconsistent 

application—particularly with 

conflicting circuit court interpretations 

of similar groups—all make the 

definition of a particular social group 

ripe for rulemaking. See Lopez v. Davis, 

531 U.S. 230, 244 (2001) (observing that 

‘‘a single rulemaking proceeding’’ may 

allow an agency to more ‘‘fairly and 

efficiently’’ address an issue than would 

‘‘case-by-case decisionmaking’’ 

(quotation marks omitted)). 

Furthermore, courts have also 

expressly held that the term is 

ambiguous. See, e.g., Cordoba v. Holder, 

726 F.3d 1106, 1114 (9th Cir. 2013) 

(‘‘We have recognized that the phrase 

‘particular social group’ is 

ambiguous.’’); Fatin, 12 F.3d at 1238 

(‘‘Both courts and commentators have 

struggled to define ‘particular social 

group.’ Read in its broadest literal sense, 

the phrase is almost completely openended. Virtually any set including more 

than one person could be described as 

a ‘particular social group.’ Thus, the 

statutory language standing alone is not 

very instructive.’’).42

As noted in the NPRM, ambiguities in 

the Act should ‘‘be resolved, first and 

foremost, by the agency.’’ 85 FR at 

36265 (quoting Matter of R–A–, 24 I&N 

Dec. at 631 (quoting Brand X, 545 U.S. 

at 982 (internal quotation and citations 

omitted)). Further, the Supreme Court 

has clearly indicated that administrative 

agencies, rather than circuit courts, are 

the most appropriate entities to make 

determinations about asylum eligibility 

in the first instance. The Supreme 

Court, in INS v. Ventura, 537 U.S. 12 

(2002), noted: 

Within broad limits the law entrusts the 

agency to make the basic asylum eligibility 

decision here in question. . . . In such 

circumstances a judicial judgment cannot be 

made to do service for an administrative 

judgment. . . . Nor can an appellate court 

. . . intrude upon the domain which 

Congress has exclusively entrusted to an 

administrative agency. . . . A court of 

appeals is not generally empowered to 

conduct a de novo inquiry into the matter 

being reviewed and to reach its own 

conclusions based on such an inquiry. 

Id. at 16 (cleaned up)); cf. Gonzales v. 

Thomas, 547 U.S. 183, 185–87 (2006) 

(applying Ventura to require a remand 

from the circuit court to the agency to 

determine a question of the meaning of 

‘‘particular social group). ‘‘Indeed, 

‘judicial deference to the Executive 

Branch is especially appropriate in the 

immigration context,’ where decisions 

about a complex statutory scheme often 

implicate foreign relations.’’ Scialabba 

v. Cuellar de Osorio, 573 U.S. 41, 56– 

57 (2014) (plurality op.) (quoting INS v. 

Aguirre-Aguirre, 526 U.S. 415, 425 

(1999)). Accordingly, the Departments 

are acting within their well-established 

authority to define the term ‘‘particular 

social group.’’ 

Furthermore, the Departments’ 

regulations regarding the adjudication of 

claims pertaining to ‘‘membership in a 

particular social group’’ are reasonable 

interpretations of the term, as evidenced 

by a long history of agency and circuit 

court decisions to have interpreted the 

terms consistently with the 

Departments’ guidelines. See Matter of 

W–G–R–, 26 I&N Dec. 208, 222–23 (BIA 

2014) (pertaining to past or present 

criminal activity or associations); 

Cantarero v. Holder, 734 F.3d 82, 86 (1st 

Cir. 2013) (same); Gonzalez v. U.S. Att’y 

Gen., 820 F.3d 399, 405 (11th Cir. 2016) 

(same); Matter of A–B–, 27 I&N Dec. at 

320 (pertaining to presence in a country 

with generalized violence or a high 

crime rate and private criminal acts of 

which governmental authorities were 

unaware or uninvolved); Matter of S–E– 

G–, 24 I&N Dec. 579, 585–86 (BIA 2008) 

(pertaining to attempted recruitment of 

the applicant by criminal, terrorist, or 

persecutory groups); Matter of E–A–G–, 

24 I&N Dec. 591, 594–95 (BIA 2008) 

(same); Matter of A–M–E– & J–G–U–, 24 

I&N, Dec. 69, 75 (BIA 2007) (same); 

Matter of Pierre, 15 I&N Dec. 461, 462– 

63 (BIA 1975) (pertaining to 

interpersonal disputes of which 

governmental authorities were unaware 

or uninvolved); Gonzalez-Posadas v. 

Att’y Gen. of U.S., 781 F.3d 677, 685 (3d 

Cir. 2015) (same); Gonzales-Veliz v. 

Barr, 938 F.3d 219, 230–31 (5th Cir. 

2019) (pertaining to private criminal 

acts of which governmental authorities 

were unaware or uninvolved); DelgadoOrtiz v. Holder, 600 F.3d 1148, 1151–52 

(9th Cir. 2010) (‘‘We conclude that 

Petitioners’ proposed social group, 

‘returning Mexicans from the United 

States,’ . . . is too broad to qualify as a 

cognizable social group.’’); Sam v. 

Holder, 752 F.3d 97, 100 (1st Cir. 2014) 

(Guatemalans returning after a lengthy 

residence in the United States is not a 

cognizable particular social group). 

The Departments agree with 

commenters that circuit court 

interpretations of the phrase ‘‘particular 

social group’’ have been uneven, and 

the inconsistency with which that 

phrase has been evaluated strongly 

militates in favor of the agencies 

adopting a clearer, more uniform 

definition. Further, the Departments 

have considered all relevant circuit 

court law on the issue and note that 

significant conflicts exist among the 

various interpretations. See, e.g., Paloka 

v. Holder, 762 F.3d 191, 197 (2d Cir. 

2014) (highlighting conflicting circuit 

court decisions regarding whether 

young Albanian women are a particular 

social group and collecting cases 

showing differing circuit court decisions 

regarding cognizability of other 

particular social groups). Nevertheless, 

the Departments believe that the rule 

reflects an appropriate and reasonable 

synthesis of legal principles consistent 

with the Departments’ respective policy 

positions. Additionally, as noted in the 

NPRM, 85 FR at 36265 n.1, to the extent 

that some circuits have disagreed with 

the Departments’ reasonable 

interpretation, the Departments’ 

proposed rule would warrant reevaluation in appropriate cases under 

well-established principles. See Brand 

X, 545 U.S. at 982; cf. Ventura, 537 U.S. 

at 16–17 (within broad limits, the INA 

entrusts agencies, not circuit courts, to 

make basic asylum eligibility 

determinations). 

The Departments disagree with 

commenters’ assertions that the rule 

would render it ‘‘virtually impossible’’ 

to prevail on asylums claim involving 

membership in a particular social group 

or undermine the concept of ‘‘case-bycase’’ adjudication of particular-socialgroup claims, as described in Matter of 

A–B–, 27 I&N Dec. 316. Assuming the 

formulation of the proposed particular 

social group would, if supported, meet 

the definition of such a group in the first 

instance—i.e., assuming the proposed 

particular social group sets forth a prima 

facie case that the group is based on an 

immutable or fundamental 

characteristic, is defined with 

particularity, and is recognized as 

socially distinct—the rule does not alter 

an adjudicator’s responsibility to 

determine whether the facts and 

evidence of each individual case 

ultimately establish that the proposed 

particular social group is cognizable. 

Thus, whether a proposed group has— 

see, e.g., Matter of Toboso-Alfonso, 20 


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I&N Dec. 819, 822 (BIA 1990) 

(designated as precedent by Attorney 

General Order No. 1895–94 (June 12, 

1994)) (homosexuals in Cuba may be a 

particular social group)—or has not— 

see, e.g., Matter of Vigil, 19 I&N Dec. 

572, 575 (BIA 1988) (young, male, 

urban, unenlisted Salvadorans do not 

constitute a particular social group)— 

been recognized in other cases is not 

dispositive of whether the proposed 

particular social group in an individual 

case is cognizable. See S.E.R.L. v. Att’y 

Gen., 894 F.3d 535, 556 (3d Cir. 2018) 

(‘‘Consequently, it does not follow that 

because the BIA has accepted that one 

society recognizes a particular group as 

distinct that all societies must be seen 

as recognizing such a group.’’). 

Adjudicators should not assume that a 

particular social group that has been 

found cognizable in one case is 

cognizable in every other case in which 

it is asserted or is cognizable in 

perpetuity, nor should they assume the 

opposite. Id. Rather, if the proposed 

particular social group would be legally 

cognizable if sufficiently supported by 

evidence, adjudicators should continue 

to adjudicate particular social group 

claims on a case-by-case basis. 

Further, as the Departments have 

specified, while the listed groups would 

be ‘‘generally insufficient to establish a 

particular social group’’ because they do 

not meet the definition of such a group, 

the Departments do not entirely 

foreclose the possibility of establishing 

an asylum claim on those bases. Rather, 

the rule simply lists social groups that, 

‘‘without more,’’ generally will not meet 

the particularity and social distinction 

requirements for particular social group. 

85 FR at 36279. 

Such general guidelines are an 

appropriate use of agency authority that 

comports with the Attorney General’s 

decision in Matter of A–B–. Cf. 8 CFR 

208.4(a)(4),(5), 1208.4(a)(4), (5) 

(providing general categories of 

circumstances that may qualify as 

changed circumstances or extraordinary 

circumstances for purposes of INA 

208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D)); 8 

CFR 212.7(d), 1212.7(d) (‘‘The Attorney 

General, in general, will not favorably 

exercise discretion under section 

212(h)(2) of the Act . . . with respect to 

immigrant aliens who are inadmissible 

under section 212(a)(2) of the Act in 

cases involving violent or dangerous 

crimes, except in extraordinary 

circumstances[.]’’); Matter of Y–L–, 23 

I&N Dec. at 274–76 (establishing a 

general presumption that aggravated 

felony drug trafficking crimes are 

‘‘particularly serious crimes’’ for 

purposes of INA 241(b)(3)(B), 8 U.S.C. 

1231(b)(3)(B)). The Departments are 

providing clarity on this issue through 

rulemaking, rather than through other 

forms of sub-regulatory guidance or 

through the development of case law in 

individual adjudications, in order to 

promote much needed uniformity and 

clarity on the particular-social-group 

issue. See also Memorandum from 

Jefferson B. Sessions, III, Attorney 

General, re: Prohibition on Improper 

Guidance Documents 1 (Nov. 16, 2017), 

https://www.justice.gov/opa/pressrelease/file/1012271/download (in 

contrast with issuing informal 

‘‘guidance documents,’’ ‘‘notice-andcomment rulemaking . . . has the 

benefit of availing agencies of more 

complete information about a proposed 

rule’s effects than the agency could 

ascertain on its own, and therefore 

results in better decision making’’). The 

Department applies the same response 

to address commenters’ concerns with 

respect to the ‘‘broad wording’’ of the 

groups that the rule describes as 

generally not cognizable for asylum 

claims. 

The Departments also disagree with 

commenters that the rule is unwise or 

discriminatory, or that the purpose of 

this rule is to exclude certain groups of 

applicants or target individuals from 

Central America and Mexico. As stated 

above, the rule is not ‘‘immoral,’’ 

motivated by racial animus or 

promulgated with discriminatory intent. 

Rather, it is rooted in case law from the 

BIA, multiple circuits, and the Supreme 

Court, none of which have evinced a 

racial or discriminatory animus. 

Further, the rule is intended to help the 

Departments better allocate limited 

resources in order to more expeditiously 

adjudicate meritorious asylum, statutory 

withholding of removal, and CAT 

protection claims. Relatedly, with 

respect to commenters’ concerns about 

this rule’s potential effect on certain, 

discrete groups—e.g., LGBTQ 

individuals, minors, and other specific 

nationalities—the Departments note that 

they have codified a long-standing test 

for determining cognizability of 

particular social groups and have set 

forth a list of common fact patterns 

involving particular-social-group claims 

that generally will not meet those wellestablished requirements. The 

Departments did not first determine 

which groups should or should not be 

cognizable and craft a rule around that 

determination, and the rule does not 

single out any discretely-labeled groups 

in the manner suggested by 

commenters. Moreover, as the rule 

makes clear, it applies ‘‘in general’’ and 

does not categorically rule out specific 

claims depending on the claim’s 

evidentiary support. Further, because 

each asylum application is adjudicated 

based on its own facts and evidentiary 

support and because the rule does not 

categorically rule out specific claims, 

commenters’ concerns about the effects 

of the rule on broad, undifferentiated 

categories without reference to specific 

claims are conclusory, conjectural, 

unfounded, and wholly and inherently 

speculative. 

With respect to commenters’ claims 

that the social groups that would be 

dismissed under the rule would 

historically encompass a large number 

of potentially successful asylum claims, 

the Departments reiterate that they are 

setting forth, by regulation, a reasonable 

interpretation of the statutory term 

‘‘particular social group’’ that will 

ameliorate stressors upon the healthy 

functioning of our immigration system 

and encourage uniformity of 

adjudications. Even assuming, without 

deciding, that there are other, broader 

interpretations of the term ‘‘particular 

social group’’ that might encompass a 

larger number of asylum applicants, the 

relevant inquiry is not whether the 

Departments’ interpretation is the 

preferred interpretation or even the best 

interpretation. Rather the relevant 

inquiry is whether the Departments’ 

interpretation is reasonable. See 

Chevron, 467 U.S. at 845; see also 

Holder v. Martinez Gutierrez, 566 U.S. 

583, 591 (2012) (observing that the 

agency’s ‘‘position prevails if it is a 

reasonable construction of the [INA], 

whether or not it is the only possible 

interpretation or even the one a court 

might think best’’). The regulations 

indeed set forth a reasonable 

interpretation of the term ‘‘particular 

social group,’’ for the reasons described 

above. The Departments also note again 

that the rule will not categorically 

exclude the listed groups, rather it 

issues guidance that such groups will 

‘‘generally’’ not meet the requirements 

of a cognizable particular social group 

‘‘without more.’’ 

Relatedly, commenters’ statements 

that the rule would result in denial of 

meritorious claims are circular. A claim 

is meritorious if it meets all of the 

statutory requirements for asylum, 

including, where appropriate, the 

ambiguous statutory requirement of 

demonstrating ‘‘membership in a 

particular social group.’’ The 

Departments note the commenters’ 

position that the term should be defined 

more broadly than what the 

Departments proposed, and, to be sure, 

a broader definition would result in 

more groups being recognized as 

cognizable. However, for the reasons 

explained in the NPRM, 85 FR at 


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36277–79, and throughout this 

rulemaking, the Departments have set 

forth a reasonable definition of the term 

as part of their well-established 

authority to do so. To the extent that 

applicants are unable to meet the 

statutory requirements, including 

‘‘membership in a particular social 

group’’ as that term is reasonably 

defined by the Departments, their 

claims are not meritorious. 

The Departments believe that 

commenter assertions that parties will 

need to prove that they do not belong 

in or are distinct from a listed particular 

social group misconstrue the particular 

social group analysis. People may, and 

are likely to, belong to multiple groups, 

which might or might not include 

cognizable particular social groups. An 

applicant need not prove that he or she 

does not belong to a non-cognizable 

group, only that he or she belongs to a 

cognizable group and was persecuted on 

account of that membership. 

Membership in a non-cognizable group 

does not negate one’s membership in a 

cognizable group. Thus, an asylum 

applicant who has membership in one 

of the listed groups, which will 

generally not be cognizable without 

more, does not preclude an applicant 

from prevailing on a separate cognizable 

claim. 

The Departments disagree with 

commenter assertions that the rule 

impermissibly creates a negative 

presumption against cognizability of the 

listed groups. As an initial point, the 

listed groups, as discussed in the 

NPRM, 85 FR at 36279, are generally 

rooted in case law, and commenters 

neither allege that the circuit court case 

law underlying the listing of these 

groups establishes a ‘‘negative 

presumption’’ against groups that have 

not been recognized in that case law, 

nor urge the Departments to abandon 

their longstanding policy to treat circuit 

court case law as binding—including 

decisions regarding the cognizability of 

alleged particular social groups—in the 

circuit in which it arises. Thus, to the 

extent that commenters disagree with 

the Departments’ codification of existing 

case law, that disagreement lies with the 

case law itself. Additionally, in the 

Departments’ experience, many 

advocates treat the recognition of a 

particular social group—either by the 

Board or a circuit court—as establishing 

a positive presumption, if not a 

categorical rule, that the group is 

cognizable in every case, yet 

commenters expressed no concern with 

that type of presumption. Cf. S.E.R.L., 

894 F.3d at 556 (‘‘S.E.R.L. relies heavily 

on [Matter of A–R–C–G–], in which the 

Board considered a group consisting of 

married female victims of domestic 

violence.’’); Amezcua-Preciado v. U.S. 

Att’y Gen., 943 F.3d 1337, 1344 (11th 

Cir. 2019) (discussing similar proposed 

particular social groups across multiple 

circuits that closely tracked the group 

recognized by the BIA in Matter of A– 

R–C–G–); Del Carmen Amaya-De 

Sicaran v. Barr,—F.3d—, 2020 WL 

6373124 (4th Cir. 2020) (noting 

decisions from other circuits addressing 

similar proposed particular social 

groups that closely tracked the group 

recognized by the BIA in Matter of A– 

R–C–G–). As the Departments discussed, 

supra, the rule does not depart from 

longstanding principles regarding the 

case-by-case nature of asylum 

adjudications. Thus, adjudicators do not 

apply a positive presumption that a 

particular social group that has been 

found cognizable in one case is 

cognizable in every other case in which 

it is asserted or is cognizable in 

perpetuity, nor do they apply a 

categorical negative presumption that a 

group listed in the rule is always and in 

every case not cognizable. Nothing in 

the rule creates categorical 

presumptions, either positive or 

negative. 

It is always the applicant’s burden to 

demonstrate that he or she belongs to a 

cognizable particular social group and 

must set forth the facts and evidence to 

establish that claim, regardless of 

whether or not the proposed group is 

described in this rule. INA 208(b)(1)(B), 

8 U.S.C. 1158(b)(1)(B). This rulemaking 

highlights common proposed groups 

that generally, without more, will not 

meet an applicant’s burden to 

demonstrate membership in a 

‘‘particular social group,’’ and the 

burden remains on the applicant, as it 

always has, to demonstrate that he or 

she is a member of a cognizable 

particular social group. Id. This 

rulemaking puts applicants on notice 

that such groups, generally, without 

more, will not be cognizable. To the 

extent that an applicant believes that his 

or her membership in one of the listed 

groups should nevertheless be 

recognized, he or she may present his or 

her claim stating why the proposed 

group is cognizable and, as appropriate, 

appeal it to the BIA and a Federal 

circuit court. 

The commenters’ statements about the 

Attorney General’s authority to certify 

cases and issue precedential decisions 

relate to powers delegated to the 

Attorney General by Congress that have 

existed for decades and are far outside 

of the scope of this rulemaking. INA 

103(a)(1), (g), 8 U.S.C. 1103(a)(1), (g); 8 

CFR 1003.1(h). All decisions in the 

immigration system are made in 

accordance with the evidence and 

applicable law and policy. In particular, 

EOIR’s mission remains the same—to 

adjudicate cases in a fair, expeditious, 

and uniform manner. See EOIR, About 

the Office, https://www.justice.gov/eoir/ 

about-office (last updated Aug. 14, 

2018); see also 8 CFR 1003.1(d)(1)(ii) 

(‘‘Board members shall exercise their 

independent judgment and discretion in 

considering and determining the cases 

coming before the Board[.]’’); 8 CFR 

1003.1(e)(8)(ii) (‘‘[T]he Director shall 

exercise delegated authority from the 

Attorney General identical to that of the 

Board[.]’’); 8 CFR 1003.10(b) 

(‘‘immigration judges shall exercise 

their independent judgment and 

discretion’’). 

The Departments decline to 

incorporate the commenter 

recommendation to codify either the 

Matter of Acosta standard for particular 

social group, which required only that 

a group be immutable, or the alleged 

UNHCR standard, which commenters 

stated requires immutability and that 

the group ‘‘be perceived as a group by 

society’’ in lieu of the Matter of M–E– 

V–G– standard, which requires 

immutability, particularity, and social 

distinction. To do so would be to shirk 

decades of development in particular 

social group claims in favor of a 

standard set forth shortly after 

enactment of the Refugee Act of 1980, 

when ‘‘relatively few particular social 

group claims had been presented’’ to 

immigration adjudicators, and which 

‘‘led to confusion and a lack of 

consistency’’ in subsequent years as 

adjudicators struggled with ‘‘numerous 

and varied’’ proposed groups. See 

Matter of M–E–V–G–, 26 I&N Dec. at 

231. Moreover, ‘‘immutability, while 

important, has never been the last or 

only word on the definition of a social 

group,’’ because ‘‘[m]any social groups 

are labile in nature.’’ Ahmed v. 

Ashcroft, 348 F.3d 611, 617 (7th Cir. 

2003). Further, notwithstanding the 

commenter’s statement that the M–E–V– 

G– standard is confusing, the 

Departments note that the nearly all of 

the circuits have applied the M–E–V–G– 

test and the Third and Ninth Circuits 

have expressly accorded Chevron 

deference to that framework. See, e.g., 

S.E.R.L., 894 F.3d at 554 n.20 (collecting 

cases). As the commenter notes, the 

Seventh Circuit has neither rejected nor 

endorsed the framework. 

Relatedly, the Departments will not 

incorporate commenter suggestions to 

expand the regulatory language with 

respect to the requirement of 


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43Asylum is a discretionary benefit demonstrated 

by the text of the statute that states the Departments 

‘‘may grant asylum,’’ INA 208(b)(1)(A), 8 U.S.C. 

1158(b)(1)(A) (emphasis added); Dep’t of Homeland 

Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1965 n.4 

(2020) (‘‘A grant of asylum enables an alien to enter 

the country, but even if an applicant qualifies, an 

actual grant of asylum is discretionary.’’), and 

provides authority to the Attorney General and 

Secretary of Homeland Security to limit and 

condition, by regulation, asylum eligibility under 

INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(2)(C), 

(d)(5)(B). Courts have found that aliens have no 

cognizable due process interest in the discretionary 

benefit of asylum. See Yuen Jin, 538 F.3d at 156– 

57; Ticoalu, 472 F.3d at 11 (citing DaCosta, 449 

F.3d at 49–50). In other words, ‘‘there is no 

constitutional right to asylum per se.’’ Mudric v. 

Att’y Gen. of U.S., 469 F.3d 94, 98 (3d Cir. 2006). 

Thus, how the Departments choose to exercise their 

authority to limit or condition asylum eligibility 

and an adjudicator’s consideration of an applicant’s 

conduct in relation to asylum eligibility do not 

implicate due process claims. 

immutability to include characteristics 

that are ‘‘so fundamental to individual 

identity or conscience that it ought not 

be required to be changed[,]’’ as stated 

in Matter of Acosta. 19 I&N Dec. at 233. 

Contrary to the commenter’s assertion, 

the Departments clearly noted in the 

NPRM that this rulemaking codifies the 

‘‘longstanding requirements’’ of 

immutability, particularity, and social 

distinction, recognizing that 

‘‘[i]mmutability entails a common 

characteristic: A trait that the members 

of the group either cannot change, or 

should not be required to change 

because it is fundamental to their 

individual identities or consciences.’’ 85 

FR at 36278 (internal quotations 

omitted) (citing Matter of Acosta, 19 

I&N Dec. at 233). Accordingly, the 

Departments believe that this language 

adequately addresses the commenter 

concerns without further expanding the 

definition in the regulatory language. 

The Departments disagree with 

commenters’ concerns that the rule’s 

requirement that the particular social 

group must have existed independently 

of the alleged persecutory acts and 

cannot be defined exclusively by the 

alleged harm is arbitrary. 85 FR at 

36278. This codifies the Attorney 

General’s analysis for determining 

whether a social group has been defined 

‘‘circularly,’’ as laid out in Matter of A– 

B–, 27 I&N Dec. at 334 (‘‘To be 

cognizable, a particular social group 

must ‘exist independently’ of the harm 

asserted in an application for asylum or 

statutory withholding of removal.’’); see 

generally Matter of M–E–V–G–, 26 I&N 

Dec. at 243 (‘‘The act of persecution by 

the government may be the catalyst that 

causes the society to distinguish [a 

collection of individuals] in a 

meaningful way and consider them a 

distinct group, but the immutable 

characteristic of their shared past 

experience exists independent of the 

persecution.’’). In response to 

commenters’ assertions that the 

Convention allows for particular social 

groups that do not exist independently 

of the persecution, and that this rule 

reflects a ‘‘departure’’ from the current 

particular-social-group adjudication, the 

Departments reiterate that ‘‘[t]he 

‘independent existence’ formulation’’ 

has existed for some time and ‘‘has been 

accepted by many courts.’’ 85 FR at 

36278; see, e.g., Perez-Rabanales v. 

Sessions, 881 F.3d 61, 67 (1st Cir. 2018) 

(‘‘A sufficiently distinct social group 

must exist independent of the 

persecution claimed to have been 

suffered by the alien and must have 

existed before the alleged persecution 

began.’’); Lukwago, 329 F.3d at 172 

(‘‘We agree that under the statute a 

‘particular social group’ must exist 

*COM007*independently of the 

persecution suffered by the applicant for 

asylum.’’); accord Amaya-De Sicaran, 

2020 WL 6373124 at *5 (‘‘The 

proposition that a cognizable particular 

social group cannot be defined by the 

underlying persecution is hardly 

controversial. The anti-circularity 

principle—and the Chevron deference to 

which it is entitled—has won wide 

acceptance among the circuit courts 

. . . . Even prior to the Attorney 

General’s decision, we have applied the 

anti-circularity principle . . . . And a 

broader examination of caselaw preMatter of A–B– confirms that this is no 

new proposition.’’). 

In recent litigation, asylum seekers 

did ‘‘not challenge A–B–’s description of 

the circularity rule’’ and, the court 

determined, A–B–’s test sets forth 

‘‘exactly the analysis required to 

determine whether a particular claim is 

or is not circular.’’ Grace II, 965 F.3d at 

905. For courts that have rejected this 

‘‘independent existence’’ requirement, 

see, e.g., Cece, 733 F.3d at 671–72, both 

subsequent decisions recognizing the 

requirement, see, e.g., Matter of A–B–, 

27 I&N Dec. 316, and Matter of M–E–V– 

G–, 26 I&N Dec. 227, and the 

Departments’ proposed rule codifying it 

would warrant re-evaluation under 

well-established principles, see Brand 

X, 545 U.S. at 982; see also Amaya-De 

Sicaran, 2020 WL 6373124 at *5 (‘‘The 

Attorney General’s [anti-circularity 

formulation] in Matter of A–B– is not 

arbitrary and capricious.’’). 

The Departments disagree with 

commenters’ concerns about due 

process violations with respect to the 

rule’s requirement that, while in 

proceedings before an immigration 

judge, an applicant must ‘‘first define 

the proposed particular social group as 

part of the asylum application or 

otherwise in the record’’ or ‘‘waive any 

claim based on a particular social group 

formulation that was not advanced.’’ To 

the extent that this requirement 

allegedly ‘‘goes further than’’ Matter of 

W–Y–C–& H–O–B–, 27 I&N Dec. 189, as 

the commenter alleges, this requirement 

is merely a codification of the 

longstanding principle that arguments 

not made in front of an immigration 

judge are deemed waived for purposes 

of further review. See, e.g., In re 

J–Y–C–, 24 I&N Dec. 260, 261 n.1 (BIA 

2007) (claim not raised below is not 

appropriate to consider on appeal). 

Contrary to commenters’ concerns, 

the rule does not violate notions of 

fairness or due process.43 Nothing in the 

rule eliminates an alien’s right to notice 

and an opportunity to be heard, which 

are the foundational principles of due 

process. See Matthews v. Eldridge, 424 

U.S. 319, 348–49 (1976) (‘‘The essence 

of due process is the requirement that a 

person in jeopardy of serious loss (be 

given) notice of the case against him and 

opportunity to meet it.’’ (cleaned up)). 

Aliens remains subject to specified 

procedures regarding claims of a fear of 

return to an alien’s country of 

nationality, including the ability to have 

a claim reviewed or heard by an 

immigration judge. Moreover, the fact 

that applicable law may limit the types 

of claims an alien may bring—e.g., an 

asylum claim based on a fear of 

persecution unrelated to one of the five 

statutory grounds in INA 101(a)(42), 8 

U.S.C. 1101(a)(42)—or the ability of an 

alien to bring an asylum or statutory 

withholding claim at all—e.g., an alien 

convicted of an aggravated felony for 

which the alien was sentenced to an 

aggregate term of imprisonment of at 

least five years, INA 208(b)(2)(A)(ii), 

(B)(i) and 241(b)(3)(B)(ii), 8 U.S.C. 

1158(b)(2)(A)(ii), (B)(i) and 

1231(b)(3)(B)(ii)—does not mean that an 

alien has been deprived of due process. 

As explained in the NPRM and 

reiterated herein, this rule is rooted in 

well-established law and does not 

violate an alien’s due process right 

regarding an application for relief or 

protection from removal. 

Some commenters objected to the 

procedural requirement that an alien 

must initially define the proposed 

particular social group as either part of 

the record or with the application. The 

INA directs the Attorney General to 

establish procedures for the 

consideration of asylum applications, 

INA 208(d)(1), 8 U.S.C. 1158(d)(1), and 

regulations already require both an 


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application for an alien to seek asylum, 

8 CFR 208.3(a) and 1208.3(a), and that 

the application be completed in full to 

be filed, id. 208.3(c)(3) and 1208.3(c)(3). 

To the extent that some commenters’ 

concerns regarded the exactness with 

which an alien must define the 

particular social group, the Departments 

note that most asylum applicants, 87 

percent, have representation, EOIR, 

Current Representation Rates (Oct. 13, 

2020), https://www.justice.gov/eoir/ 

page/file/1062991/download, and that 

aliens, if of limited English proficiency, 

are able to avail themselves of the 

resources provided to them by the 

government that detail pro bono or low 

cost alternatives. 

One commenter worried that an alien 

would have to ‘‘expertly craft arguments 

in the English language in a way that 

satisfies highly technical legal 

requirements.’’ The Department 

disagrees that this is what the 

regulations require. As an initial point, 

nothing in the rule requires an alien to 

craft arguments when applying for 

asylum. Aliens, with or without 

representation, have filled out asylum 

applications for decades, including by 

stating particular social groups as a 

basis for the asylum claim. Commenters 

have not submitted any evidence or 

alleged any change in an alien’s ability 

to complete the application over the 

preceding 40 years, and the 

Departments are unaware of any reasons 

or allegations that aliens are now less 

capable of filling out an application— 

including stating a particular social 

group, if appropriate—that has been 

used for years. An alien simply has to 

state in the application why the alien is 

afraid. As noted in the NPRM, the 

specific form of the delineation will not 

be considered over and above the 

substance of the alleged particular social 

group. Further, if there are deficiencies, 

the alien will be provided an 

opportunity to correct them. Nothing in 

the rule requires aliens to ‘‘craft 

arguments’’ meeting ‘‘highly technical 

legal requirements,’’ and commenters’ 

suggestions to the contrary are simply 

not consistent with either the rule and 

the longstanding practice. 

One commenter indicated that it was 

the asylum officer’s or immigration 

judge’s duty to assist in developing the 

record, citing section 240(b)(1) of the 

Act, 8 U.S.C. 1229a(b)(1); Jacinto, 208 

F.3d at 734 (an immigration judge has 

the duty to fully develop the record 

where a respondent appears pro se); and 

Agyeman v. INS, 296 F.3d 871, 877 (9th 

Cir. 2002) (an immigration judge must 

adequately explain the procedures to 

the respondent, including what he must 

prove to prevail at the hearing). Even 

accepting the immigration judge’s duty 

as described by the cited case law, this 

is not in conflict with the rule, as the 

rule clearly explains by regulation what 

an applicant must do to demonstrate a 

cognizable particular social group, a 

concept which was previously 

articulated in disparate BIA decisions 

that have been interpreted differently by 

the various circuits. Additionally, even 

if, as stated in Jacinto, an immigration 

judge has a duty to fully develop the 

record, this does not obviate the 

applicant’s burden of demonstrating at 

least prima facie eligibility for the relief 

which he or she is seeking prior to 

proceeding to a more intensive hearing. 

Regarding commenters’ concerns 

focused on the ability for aliens to seek 

redress after an improper particular 

social group was presented based on 

ineffective assistance of counsel, the 

Departments note that the rule is 

consistent with both practice and 

applicable law. If a particular social 

group is not presented because the alien 

did not tell his or her counsel about it, 

then there has been no ineffective 

assistance on the part of counsel. If the 

alien did provide his or her counsel 

with a particular social group and 

counsel elected not to present it as a 

strategic choice, then there is no basis 

to reopen the proceedings. See In re B– 

B–, 22 I&N Dec. 309, 310 (BIA 1998) 

(‘‘subsequent dissatisfaction with a 

strategic decision of counsel is not 

grounds to reopen’’); cf. Matter of 

Velasquez, 19 I&N Dec. 377, 382 (BIA 

1986) (concession of attorney is binding 

on an alien absent egregious 

circumstances). Nevertheless, the 

Departments recognize there may be 

unique ‘‘egregious circumstances’’ in 

which reopening based on ineffective 

assistance of counsel may be warranted, 

provided that the appropriate 

procedural requirements for such a 

claim are observed. See Matter of 

Lozada, 19 I&N Dec. 637, 639 (BIA 

1988). Thus, the Departments are 

revising the final rule to account for 

such a scenario, though they expect 

such claims to be rare. 

The Departments disagree with the 

commenters’ fairness concerns with 

respect to the rule’s requirement that 

applicants define the proposed 

particular social group as part of the 

asylum claim. As an initial point, 

asylum applicants have provided 

definitions of alleged particular social 

groups in asylum applications for many 

years, and there is no evidence of any 

recent change that would preclude them 

from doing so. The commenters’ 

concerns may be based on an inaccurate 

belief that the rule requires legal 

precision of a particular social group, 

but as discussed above, that is simply 

not the case. Adjudicators are 

experienced with addressing the 

substance rather than the form of a 

claim, and articulation deficiencies will 

have an opportunity for correction 

before an immigration judge renders a 

decision. 

The Departments also acknowledge 

commenters’ concerns about the ‘‘ever 

changing landscape’’ of particularsocial-group law and the due process 

concerns associated with that. The 

‘‘ever-changing landscape’’ is, in fact, a 

principal animating factor behind this 

rulemaking, as the Departments believe 

the rule will function as a ‘‘hard reset’’ 

on the divergent—and sometimes 

contradictory—case law regarding 

particular social groups over the past 

several years in lieu of clearer 

guidelines that are both reasonable and 

easier for adjudicators and applicants 

alike to follow. In particular, the current 

state of case law may make it confusing 

for applicants to appreciate what is or 

is not a cognizable group, and the rule 

directly addresses that concern by 

providing clear definitions that should 

allow for more effective consideration of 

meritorious claims. In short, providing 

clearer guidance should reduce due 

process concerns, rather than increase 

them. 

Similarly, the Departments disagree 

that this rulemaking will be harmful to 

pro se respondents. Although there are 

comparatively few pro se asylum 

applicants as an initial matter, EOIR, 

Current Representation Rates (Oct. 13, 

2020), https://www.justice.gov/eoir/ 

page/file/1062991/download, the 

Departments believe that this regulation 

will provide clarity to all respondents, 

including those who are pro se. That 

clarity will also allow immigration 

judges to better consider pro se claims 

and ensure that the record is developed 

appropriately consistent with the law. 

The Departments believe that this 

clarity will also assist immigration 

judges in their adjudications, contrary to 

commenters’ assertions. The 

Departments also disagree with 

commenters’ statements that reducing 

the amount of time that adjudicators 

must spend evaluating claims is an 

improper purpose for the rule. The 

Departments contest allegations that 

they may not take regulatory action to 

help improve efficiencies with 

immigration adjudications. Regardless, 

as noted in the NPRM, reducing the 

amount of time that adjudicators must 

spend evaluating claims and more 

uniform application of the law are two 

additional benefits to ‘‘providing clarity 

to [the particular social group] issue.’’ 

85 FR at 36279. 


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44The Departments note that the Rehabilitation 

Act applies to individuals with disabilities, and the 

status of being a minor does not automatically 

qualify someone as an ‘‘individual with a 

disability’’ under the statutory definition of that 

term. 29 U.S.C. 705(2). 

The Departments note commenter 

concerns that the rule does not create a 

regulatory requirement for immigration 

judges to clarify the particular social 

group for the record and instead allows 

for immigration judges to pretermit 

without holding an evidentiary hearing. 

The Departments note that the asylum 

application itself, which the applicant 

must sign attesting to the application’s 

accuracy, and in which the applicant 

has had the opportunity to list his or her 

particular social group, is already part of 

the record without any further need for 

the immigration judge to clarify. 

Because the burden is always on the 

asylum applicant to establish eligibility, 

INA 208(b)(1)(B), 8 U.S.C. 1158(b)(1)(B), 

and because the immigration judge must 

remain a neutral arbiter of the claim, 

EOIR, Ethics and Professionalism Guide 

for Immigration Judges 2 (Jan. 26, 2011), 

https://www.justice.gov/sites/default/ 

files/eoir/legacy/2013/05/23/Ethicsand

ProfessionalismGuideforIJs.pdf (‘‘An 

Immigration Judge shall act impartially 

and shall not give preferential treatment 

to any organization or individual when 

adjudicating the merits of a particular 

case.’’), it would not be appropriate for 

the immigration judge to assist the alien 

in crafting his or her claim. 

Nevertheless, immigration judges are 

experienced and well-trained 

adjudicators who are adept at 

understanding the substance of a claim 

even if it is not perfectly articulated. 

Moreover, an alien will have 10 days to 

respond to any attempt to pretermit an 

application as legally insufficient, and 

there is no expectation that immigration 

judges will fail to follow the rule’s 

requirements on that issue. In short, the 

Departments do not expect immigration 

judges to abdicate their duties to the law 

in considering an applicant’s asylum 

claim. 

The Departments disagree with 

commenters’ concerns that the rule, in 

their estimation, violates the 

Rehabilitation Act of 1973, 29 U.S.C. 

794, because it does not provide 

exceptions for minors, mentally ill 

persons, or individuals otherwise 

lacking competency.44 The Departments 

note that no alien is excluded from 

applying for asylum—nor excluded 

from participating in processes to 

adjudicate such an application—on 

account of a disability. Further, all 

applicants for asylum are adjudicated 

under the same body of law, regardless 

of any particular individual 

characteristics, and nothing in the rule 

changes that. The Departments are 

unaware of any law requiring all asylum 

claims from minors, mentally ill 

persons, or incompetent aliens to be 

granted or establishing a categorical rule 

that each of those groups, regardless of 

any other characteristics, necessarily 

states a cognizable particular social 

group. The Departments are also 

unaware of any blanket exceptions to 

statutory eligibility for asylum for these 

identified groups. The rule does not 

change any established law regarding 

minors, e.g., INA 208(b)(3)(C), 8 U.S.C. 

1158(b)(3)(C), or those who lack mental 

competency, e.g., Matter of M–A–M–, 25 

I&N Dec. at 480, 481–83 (holding that 

immigration judges should ‘‘consider 

indicia of incompetency throughout the 

course of proceedings’’ and implement 

appropriate safeguards, where 

necessary). In short, the rule provides 

clarity for asylum claims relevant to all 

aliens and does not alter any existing 

accommodations generally made for the 

identified groups. Further, because each 

asylum application is adjudicated based 

on its own facts and evidentiary support 

and because the rule does not 

categorically rule out specific claims, 

commenters’ concerns about the effects 

of the rule on broad, undifferentiated 

categories without reference to specific 

claims are conclusory, conjectural, 

unfounded, and wholly and inherently 

speculative. 

4.1.1. Past or Present Criminal Activity 

or Association (Including Gang 

Membership) 

Comment: One organization noted 

that at least one court has recognized 

asylum claims from former child 

soldiers forced to commit bad acts, 

citing Lukwago, 329 F.3d at 178–180. 

The organization also stated that the 

United States has enacted the Child 

Soldiers Accountability Act, Public Law 

110–340, imposing criminal and 

immigration penalties for those who use 

child soldiers. See 18 U.S.C. 2442. The 

organization emphasized that children 

recruited into other types of criminal 

acts, like gang activity, ‘‘are not 

materially different from the children 

who fight on the front lines of conflicts 

in other parts of the world.’’ The 

organization concluded by encouraging 

the government to extend its opposition 

to the use of child soldiers to ‘‘a 

willingness to protect children fleeing 

from all types of forced criminal 

activity.’’ 

Another organization emphasized that 

past activity is an immutable 

characteristic that ‘‘cannot be undone,’’ 

noting that an individual’s personal 

biographical history cannot be changed. 

The organization noted that if a gang 

maintains that a child forcibly recruited 

is a member for life, the child would be 

regarded as a traitor for trying to leave 

the gang at a later time and would have 

a reasonable basis to fear for his or her 

life. 

One organization alleged that the rule 

would change the law ‘‘without 

explanation or justification’’ by 

overturning the decisions of multiple 

Federal courts of appeals. The 

organization specifically referenced 

Urbina-Mejia v. Holder, 597 F.3d 360 

(6th Cir. 2010) and Benitez Ramos v. 

Holder, 589 F.3d 426 (7th Cir. 2009). 

The organization claimed this would be 

contrary to the stated goal of the 

‘‘laundry list,’’ which is legal 

consistency. See 85 FR at 36278. The 

organization also contended that the 

rule would be contrary to the intent 

behind the asylum bars, which preclude 

asylum based on a range of criminal 

conduct but ‘‘pointedly’’ do not 

preclude relief on account of previous 

gang membership. INA 208(b)(2)(A)–(B), 

8 U.S.C. 1158(b)(2)(A)–(B). The 

organization also claimed the rule is 

contrary to congressional intent, 

claiming it makes no attempt to explain 

‘‘why the statutory bars’’ on particular 

former persecutors ‘‘should be extended 

by administrative interpretation to 

former members of gangs.’’ Benitez 

Ramos, 589 F.3d at 430. 

Response: The Departments note that 

the case cited by the commenter, 

Lukwago, 329 F.3d 157, which the 

commenter alleges recognized the 

likelihood of a cognizable particular 

social group involving former child 

soldiers, was published in 2003, well 

before the now-codified test for 

cognizability had been developed in 

Matter of S–E–G–, 24 I&N Dec. at 585– 

86 and Matter of E–A–G–, 24 I&N Dec. 

at 594–95. See Matter of M–E–V–G–, 26 

I&N Dec. at 236–37 & n.11. Accordingly, 

this decision does not lend support to 

the commenter’s claim. The 

Departments further note, however, that 

the court in Lukwago acknowledged that 

‘‘given the ambiguity of the [term 

‘‘particular social group’’], [the court’s] 

role is limited to reviewing the BIA’s 

interpretation, using Chevron deference 

to determine if it is a ‘‘permissible 

construction of the statute.’’ Lukwago, 

329 F.3d at 171. Additionally, the Child 

Soldiers Accountability Act is unrelated 

to this rulemaking. 

Although past activity is an 

immutable characteristic, immutability 

alone is not sufficient to establish a 

cognizable particular social group; 

particularity and social distinction are 

also required. See Matter of S–E–G–, 24 

I&N Dec. at 585–86; Matter of E–A–G–, 


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45Although the Departments have placed this 

category under the definition of ‘‘particular social 

group,’’ it may also be appropriately considered 

under the definition of ‘‘nexus’’ as well, as the lists 

under both definitions are nonexhaustive. 

24 I&N Dec. at 594–95; Matter of M–E– 

V–G–, 26 I&N Dec. at 237. 

The Departments disagree with 

commenters that the rule would 

undermine establishing legal 

consistency and uniformity in the 

immigration laws, as it should 

encourage such consistency across all 

circuits by providing much-needed 

guidance on an ambiguous term in the 

Act. In fact, the circuits are themselves 

split on the issue of whether former 

gang membership is cognizable as a 

particular social group. Compare 

Martinez v. Holder, 740 F.3d 902, 910– 

12 (4th Cir. 2014) (former member of a 

criminal street gang may be a particular 

social group) and, Benitez-Ramos v. 

Holder, 589 F.3d 426, 430–31 (7th Cir. 

2009) (same), with Gonzalez v. U.S. 

Att’y Gen., 820 F.3d 399, 405 (11th Cir. 

2016) (agreeing with First Circuit that 

former gang members do not constitute 

a cognizable ‘‘particular social group’’); 

Cantarero v. Holder, 734 F.3d 82, 85–86 

(1st Cir. 2013) (‘‘The BIA reasonably 

concluded that, in light of the manifest 

humanitarian purpose of the INA, 

Congress did not mean to grant asylum 

to those whose association with a 

criminal syndicate has caused them to 

run into danger. . . . Such recognition 

would reward membership in an 

organization that undoubtedly wreaks 

social harm in the streets of our country. 

It would, moreover, offer an incentive 

for aliens to join gangs here as a path to 

legal status.’’); and Arteaga v. Mukasey, 

511 F.3d 940, 945–46 (9th Cir. 2007) 

(‘‘We cannot conclude that Congress, in 

offering refugee protection for 

individuals facing potential persecution 

through social group status, intended to 

include violent street gangs who assault 

people and who traffic in drugs and 

commit theft.’’). See also Cong. Research 

Serv., Asylum and Gang Violence: Legal 

Overview 20 (Sept. 5, 2014) (‘‘Granting 

asylum to aliens based on their 

membership in groups made up of 

former gang members is more 

complicated in that several Federal 

courts of appeals have evidenced at 

least some willingness to view former 

gang members as a particular social 

group, while others have suggested that 

granting asylum to those who belong to 

organizations that have perpetrated acts 

of violence or other crimes in their 

home countries is contrary to the 

humanitarian purposes of asylum.’’). To 

the extent that commenters assert that 

circuit case law conflicts with the 

Departments’ rule, such conflicts would 

warrant re-evaluation in appropriate 

cases by the circuits under wellestablished principles. See Brand X, 545 

U.S. at 982. 

4.1.2. Presence in a Country With 

Generalized Violence or a High Crime 

Rate 

Comment: One commenter objected 

generally to the fact that the rule 

excludes asylum seekers coming from 

‘‘a country with generalized violence or 

a high crime rate,’’ as the commenter 

believes this to be irrelevant. The 

commenter stated that the restriction 

appears designed to target individuals 

from specific countries and runs 

contrary to the purpose of asylum. The 

commenter stated that ‘‘[i]t is natural’’ 

for people to flee countries with 

violence that the governments are 

unable to control. One organization 

claimed the restriction will have a 

prejudicial impact on asylum seekers 

from Central America. Another 

organization specifically referenced the 

high crime rate in many African 

countries, claiming that violence is 

‘‘rampant’’ due to ‘‘national security 

forces’’ and ‘‘copycat violators.’’ 

Another commenter stated generally 

that ‘‘[t]he choice for them was to be 

killed and/or raped or to risk the 

hardships of seeking asylum in the 

U.S.,’’ alleging that the frequency of 

these types of abuses does not make it 

reasonable to exclude them from 

eligibility for asylum claims. One 

organization claimed the restriction 

would unfairly impact LBGTQ+ 

individuals who are ‘‘disproportionately 

victimized’’ by violent crime and 

gender-based violence. 

One organization noted that it would 

be ‘‘difficult if not impossible’’ to meet 

the three-prong test found in Matter of 

M–E–V–G–, 26 I&N Dec. at 237, using a 

claim in which the particular social 

group is based on ‘‘presence in a county 

with generalized violence or a high 

crime rate.’’ However, the organization 

expressed concern that this restrictive 

language (which it claims is not directly 

related to the particular social group 

definition at issue) would likely cause 

adjudicators to deny asylum 

applications solely because the 

applicant came from a country with a 

high crime rate, even if the applicant 

were to articulate a particular social 

group unrelated to the crime rate. 

One organization claimed the rule is 

contrary to established case law 

recognizing that presence in a country 

with generalized violence or a high 

crime rate is ‘‘irrelevant’’ to evaluating 

an asylum seeker’s claim. The 

organization noted that the Fourth 

Circuit has explained in at least three 

published opinions that criminal 

activities of a gang affecting the 

population as a whole are ‘‘beside the 

point’’ in evaluating an asylum seeker’s 

particular claim. See Alvarez-Lagos v. 

Barr, 927 F.3d 236, 251 (4th Cir. 2019); 

Zavaleta-Policiano v. Sessions, 873 F.3d 

241, 248 (4th Cir. 2017); CrespinValladares v. Holder, 632 F.3d 117, 127 

(4th Cir. 2011). 

Another organization alleged that the 

‘‘social distinction’’ requirement makes 

it nearly impossible to develop a 

cognizable particular social group that 

does not reference the asylum seeker’s 

country of origin. As a result, the 

organization claimed the rule would 

‘‘upend’’ section 208 of the Act, 8 U.S.C. 

1158, by preventing individuals fleeing 

‘‘the most violent countries in the 

world’’ from receiving asylum or 

withholding of removal. The 

organization also contended that the 

‘‘generalized violence’’ category is 

arbitrary to the extent it attempts to 

codify the statement in Matter of A–B– 

that particular claims are unlikely to 

satisfy the statutory grounds for 

demonstrating government inability or 

unwillingness to control the 

persecutors. Matter of A–B–, 27 I&N Dec. 

at 320. The organization claimed that 

attempting to codify that statement 

conflates two distinct elements of the 

asylum test, as the question of whether 

the government can control persecutors 

is distinct from whether a particular 

social group is cognizable. The 

organization also alleged that the 

Departments do not acknowledge or 

justify this conflation. 

Response: The Departments 

acknowledge commenters’ points that 

generalized violence may be a driving 

force behind many people fleeing their 

home countries. Although the suffering 

caused by such conditions is regrettable, 

the Departments note that asylum was 

never intended to protect individuals 

from generalized violence; instead, it 

was designed to protect those from 

violence perpetrated upon them on the 

basis of a protected ground, as well as 

other qualifying requirements. See 

Harmon v. Holder, 758 F.3d 728, 735 

(6th Cir. 2014) (‘‘General conditions of 

rampant violence alone are insufficient 

to establish eligibility.’’). 

Although circuit courts may not have 

been clear whether asylum claims based 

on fear of generalized violence or high 

crime rates are not cognizable on 

particular social group grounds or on 

nexus grounds (or on both 

grounds),45 see, e.g., Melgar de Torres v. 

Reno, 191 F.3d 307, 314 (2d Cir. 1999) 

(‘‘The increase in general crime that has 

been documented in the record does not 


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lend support to an asylum claim since 

a well-founded fear of persecution must 

be on account of an enumerated ground 

set forth in the Act, and general crime 

conditions are not a stated ground.’’); 

Umana-Ramos v. Holder, 724 F3d 667, 

670 (6th Cir. 2013) (‘‘General conditions 

of rampant gang violence alone are 

insufficient to support a claim for 

asylum.’’), they have been consistent 

that such fears are not a cognizable basis 

for asylum, even, contrary to one 

commenter, in the Fourth Circuit. See, 

e.g., D.M. v. Holder, 396 F. App’x 12, 14 

(4th Cir. 2010) (‘‘As found by the Board, 

the Petitioners have failed to show that 

they are at a greater risk of being victims 

of violent acts at the hands of criminal 

gangs than any other member of the 

general population in El Salvador. We 

have clearly held that a fear of general 

violence and unrest is inadequate to 

establish persecution on a protected 

ground.’’). 

The Departments believe that this 

rule—which establishes that particularsocial-group claims grounded in an 

applicant’s presence in a country with 

general violence or high crime rates, 

without more, will generally not be 

cognizable—is consistent with the Act, 

international law, and case law, 

particularly in connection to the 

definition of particular social group 

discussed, supra, which requires that 

the group exist independently of the 

alleged harm. Relatedly, commenters’ 

allegations that the rule was crafted in 

response to the frequency of types of 

harm suffered are misguided. With 

respect to establishing a nexus to a 

protected ground, such as particular 

social group, it is not the frequency or 

severity of abuses that would render 

such claims insufficient, but rather the 

reasons for the abuse. Asylum is 

intended to protect individuals who 

have suffered abuses for a specific 

reason, on account of a protected 

ground. Cf. Delgado-Ortiz, 600 F.3d at 

1151 (‘‘Asylum is not available to 

victims of indiscriminate violence, 

unless they are singled out on account 

of a protected ground.’’). 

The Departments further note that an 

alien coming from a country with 

generalized violence or high crime rates 

is not precluded from asylum on that 

basis alone; the rule merely establishes 

that a particular-social-group claim 

premised upon general violence or high 

crime rates will not, without more, 

prevail. To succeed on a particularsocial-group claim, an applicant must 

demonstrate that he or she has been or 

will be targeted on the basis of 

immutable, particular, and socially 

distinct characteristics, and the 

Departments believe that groups defined 

by general violence or high crime rates 

generally do not meet this threshold. 

The Departments do not disagree with 

commenters who suggested that it 

would be natural for individuals to flee 

countries where their governments 

could not control violence. Indeed there 

are myriad reasons that would 

encourage or compel an individual to 

leave his or her home country. However, 

a government’s inability or 

unwillingness to control violence is but 

one factor for asylum eligibility with 

respect to claims of persecution by nonstate actors. Applicants must meet all 

eligibility factors and merit a positive 

exercise of discretion to warrant relief. 

The Departments agree with 

commenters who stated that it would be 

difficult for applicants whose particular 

social group is predicated upon general 

violence or high crime rates in the 

country of origin to demonstrate that 

their proposed group meets all three 

requirements of immutability, 

particularity, and social distinction. 

However, the Departments do not 

believe that a regulatory standard stating 

so would lead adjudicators to deny 

applications where the applicant has 

articulated a particular social group 

unrelated to the crime rate. Rather, the 

Departments believe that this 

rulemaking offers clear guidance to 

adjudicators and parties that such 

proposed groups, without more, will not 

be cognizable. See 85 FR at 36278 (‘‘The 

proposed rule would further build on 

the BIA’s standards and provide clearer 

guidance to adjudicators regarding 

whether an alleged group exists and, if 

so, whether it is cognizable as a 

particular social group in order to 

ensure the consistent consideration of 

asylum and statutory withholding 

claims.’’). Furthermore, immigration 

judges and asylum officers undergo 

training in which they learn to 

adjudicate asylum claims, including the 

cognizability of particular social groups. 

The Departments are confident that 

adjudicators are aptly prepared, through 

training and experience, to adjudicate 

asylum claims without confusing the 

particular-social-group analysis with 

other facets of asylum eligibility 

requiring a separate analysis. 

With respect to commenter statements 

that this rule is contrary to established 

case law which, the commenter stated, 

established that a country’s generalized 

violence and high crime rates were 

‘‘irrelevant’’ to the applicant’s claim, the 

commenter appears to have conflated 

relevance for sufficiency. The Fourth 

Circuit, in the cited cases, determined 

that generalized violence or high crime 

rate did not undermine claims where 

the court determined there was 

sufficient evidence to establish a nexus 

to a protected ground. However, these 

cases do not endorse a position that 

claims rooted in generally violent 

conditions or high crime rates, without 

more, would be sufficient to warrant a 

grant of asylum. See Alvarez-Lagos, 927 

F.3d at 251; Zavaleta-Policiano, 873 

F.3d at 248; Crespin-Valladares, 632 

F.3d at 127. 

4.1.3. Being the Subject of a Recruitment 

Effort by Criminal, Terrorist, or 

Persecutory Groups 

Comment: One organization noted 

that the rule narrows the definition of 

credible fear by ‘‘eliminating claims to 

protection from fear of gangs or 

terrorists.’’ Another organization 

claimed there is no support in the cases 

cited by the NPRM for making gang 

recruitment-related particular social 

groups generally non-cognizable, 

emphasizing that the NPRM does not 

provide any evidence as to why the 

courts should not continue to consider 

recruitment-based particular social 

groups on a case-by-case basis. 

One organization noted that the U.S. 

government recognizes that children are 

often targets for gang recruitment and 

gang violence in their home countries. 

The organization expressed concern 

regarding the rule’s presumption that 

‘‘attempted recruitment’’ or ‘‘private 

criminal acts’’ are not sufficient for 

asylum, contending this ignores the 

reality that many child asylum seekers 

flee their home countries ‘‘precisely 

because the government is unable or 

unwilling to control non-state actors 

like terrorist or gang organizations who 

would recruit or harm children and 

families.’’ 

One organization noted that UNHCR 

has emphasized the importance of 

recognizing claims based on resistance 

to and desertion from non-state armed 

groups, explaining that gangs may try to 

harm individuals who have resisted 

gang activity, are opposed to gang 

practices, or attempt to desert a gang. 

Response: The Departments disagree 

with the commenter’s assertion that the 

rule eliminates any claims to protection. 

As stated above, the rule will not 

eliminate any particular-social-group 

claims. Rather, it sets forth a list of 

social group claims that will generally 

not be, without more, cognizable. This 

does not foreclose the possibility that an 

applicant could pursue or prevail on a 

claim in which they were the subject of 

a recruitment effort by a criminal, 

terrorist, or persecutory group. As noted 

by the NPRM, ‘‘such facts could be the 

basis for finding a particular social 

group, given the fact- and societyspecific nature of this determination.’’ 


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85 FR at 36279; see also Grace II, 965 

F.3d at 906 (‘‘[T]he record in this case 

does not support the asylum seekers’ 

argument that [the Departments] have 

erected a rule against asylum claims 

involving allegations of domestic and/or 

gang violence.’’). However, as a general 

rule, such groups will not be cognizable, 

consistent with existing Attorney 

General and BIA precedent. Matter of 

A–B–, 27 I&N Dec. at 335 (‘‘Victims of 

gang violence often come from all 

segments of society, and they possess no 

distinguishing characteristic or concrete 

trait that would readily identify them as 

members of such a group’’); Matter of S– 

E–G–, 24 I&N Dec. at 584 (‘‘[Y]outh who 

have been targeted for recruitment by, 

and resisted, criminal gangs may have a 

shared past experience, which, by 

definition, cannot be changed. However, 

this does not necessarily mean that the 

shared past experience suffices to define 

a particular social group for asylum 

purposes.’’); Matter of E–A–G–, 24 I&N 

Dec. at 594–95 (determining that 

‘‘persons resistant to gang membership’’ 

is not cognizable); see also Constanza v. 

Holder, 647 F.3d 749, 754 (8th Cir. 

2011); see also Lizama v. Holder, 629 

F.3d 440, 447 (4th Cir. 2011); Larios v. 

Holder, 608 F.3d 105, 109 (1st Cir. 

2010); Lushaj v. Holder, 380 F. App’x 

41, 43 (2d Cir. 2010); Barrios v. Holder, 

581 F.3d 849, 855 (9th Cir. 2009). The 

Departments do not dispute that 

children may be targets for gangs, gang 

recruitment, and gang violence in their 

countries of origin. However, whether 

such applicants for asylum have been 

harmed or fear harm from the gangs is 

only one part of the overall asylum 

inquiry. Even a further showing that the 

government is unwilling or unable to 

protect the applicant would not be 

enough to merit a grant of asylum 

without meeting the other eligibility 

requirements. As discussed above, an 

applicant must also demonstrate that 

the harm he or she suffered or fears is 

on account of protected ground, such as 

membership in a particular social group. 

4.1.4. The Targeting of the Applicant for 

Criminal Activity for Financial Gain 

Based on Perceptions of Wealth or 

Affluence 

Comment: Another organization 

claimed that history is full of examples 

of persecution of classes of people on 

the basis of perceived wealth or 

influence. The organization stated that, 

under the proposed rule, the members 

of the kulak class who were killed after 

the Russian Revolution or the many 

wealthy and middle class Cubans who 

fled the Cuban Revolution would not 

have been recognized as persecuted 

social groups. 

Another organization contended that 

there is no legal basis or support in the 

NPRM for precluding courts from 

analyzing particular social groups 

involving wealth on a case-by-case 

basis. The organization referenced the 

BIA’s decision in Matter of A–M–E– & J– 

G–U–, 24 I&N Dec. 69 (BIA 2007), aff’d 

Ucelo-Gomez v. Mukasey, 509 F.3d 70 

(2d Cir. 2007) (cited at 85 FR at 36279), 

stating the fact that the BIA held 

thirteen years ago that ‘‘affluent 

Guatemalans’’ is not a cognizable 

particular social group ‘‘does not even 

begin to support the NPRM’s sweeping 

proposal to bar all PSGs that mention 

wealth.’’ 

Response: As noted in the NPRM, a 

social group which is founded upon 

being targeted for criminal activity for 

financial gain or for perceptions of 

wealth or affluence are generally, 

without more, unable to meet the wellestablished requirements for 

cognizability. 85 FR at 36279; see Matter 

of A–M–E– & J–G–U–, 24 I&N Dec. at 75. 

With respect to commenters who 

presented specific examples that they 

alleged illustrated persecution of classes 

of people on the basis of perceived 

wealth or influence, as well as 

comments suggesting that the 

Departments are doing away with 

individualized analysis, the 

Departments note again that there may 

exist examples of social groups based on 

wealth that are cognizable, and that the 

listed social groups have been identified 

as generally not cognizable, without 

more. However, ‘‘the regulation does not 

foreclose that, in rare circumstances, 

such facts could be the basis for finding 

a particular social group, given the factand society specific nature of this 

determination.’’ 85 FR at 36279; see 

Grace II, 965 F.3d at 906 (‘‘[T]he record 

in this case does not support the asylum 

seekers’ argument that [the 

Departments] have erected a rule against 

asylum claims involving allegations of 

domestic and/or gang violence.’’). 

4.1.5. Interpersonal Disputes of Which 

Governmental Authorities Were 

Unaware or Uninvolved 

Comment: One organization noted 

that the rule would limit particular 

social groups based on both 

‘‘interpersonal disputes of which 

governmental authorities were unaware 

or uninvolved’’ and ‘‘private criminal 

acts of which governmental authorities 

were unaware or uninvolved.’’ The 

organization emphasized that it is 

unlikely that a particular social group 

framed in this way would be cognizable; 

however, because the fact pattern is 

included in the rule as a ‘‘limiting 

concept,’’ the organization expressed 

concern that adjudicators would likely 

deny asylum based on this language, 

even though the rule specifies that it 

applies ‘‘in the context of analyzing a 

particular social group.’’ 

Another organization expressed 

concern that governments could attempt 

to remove U.S. or international 

sanctions by demonstrating that 

‘‘private actors’’ were carrying out 

persecution against political dissidents 

and religious minorities. The 

organization noted that these 

governments could use propaganda to 

‘‘inflame local residents against a 

particular group,’’ using the decimation 

of the Tutsis population in Rwanda as 

an example. According to the 

organization, governments could claim 

this was not a human rights violation 

because ‘‘government soldiers 

themselves took no part in the attack.’’ 

Another organization emphasized that 

violence is sometimes outside the state’s 

reach, noting that violent activity can 

occur where weak governments use 

allied armed groups to provide security. 

Response: As discussed above with 

respect to particular social groups 

defined by general violence or high 

crime rates, the Departments agree with 

commenters that it would be difficult to 

demonstrate that particular social 

groups defined by interpersonal 

disputes of which governmental 

authorities were unaware or 

uninvolved, without more, are 

cognizable. However, immigration 

judges and asylum officers undergo 

rigorous training on how to adjudicate 

asylum claims, including the 

cognizability of particular social groups. 

The Departments are confident that 

adjudicators are aptly prepared to 

adjudicate asylum claims without 

confusing the particular social group 

analysis with other facets of asylum 

eligibility requiring a separate analysis. 

The Departments fail to see how setting 

forth a social group that the commenter 

believes is unlikely to be presented is 

grounds for the commenter’s objection 

to the rule. 

The Departments do not address 

comments raising concerns about 

international sanctions or holding 

international governments accountable 

for alleged human rights violations, as 

the Departments’ implementing statutes 

and regulations are unrelated to such 

matters, which are more properly 

handled by the Department of State. 

Comments raising concerns about 

non-governmental violence that occurs 

‘‘outside the state’s reach’’ or in cases 

where ‘‘weak governments use allied 

armed groups to provide security’’ do 

not alter the Departments’ 

determination that particular social 


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46Regarding the commenters’ specific example, 

the Departments note that claims from Tutsis in 

Rwanda may also be framed in terms of race or 

nationality which are not defined in the rule and 

are separate from claims based on a particular social 

group. 

groups predicated upon interpersonal 

disputes of which governmental 

authorities were unaware or 

uninvolved, without more, are generally 

not cognizable. The commenter’s 

statement about non-governmental 

violence that occurs ‘‘outside the state’s 

reach’’ is not sufficiently specific for the 

Departments to draw any conclusion 

about its relevancy to such social 

groups. Although the Departments must 

be explicit that they are not endorsing 

the cognizability of such groups, the 

commenter’s proposed scenario 

regarding weak governments using 

allied armed groups clearly would not 

involve governmental unawareness and 

is unlikely to involve personal 

disputes.46

4.1.6. Private Criminal Acts of Which 

Governmental Authorities Were 

Unaware or Uninvolved 

Comment: One organization noted 

generally that the rule would remove 

protections for individuals fleeing 

violence from non-state actors. Another 

organization claimed that the rule’s 

exclusion of acts ‘‘of which 

governmental authorities are unaware or 

uninvolved’’ disproportionately affects 

the ability of children to seek asylum. 

The organization noted that the ability 

of many children to access state 

protection in their home country is 

dependent upon the adults in their 

lives, emphasizing that not all children 

have an adult to help them obtain 

protection. The organization also noted 

that some children who go directly to 

government officials for protection may 

be dismissed. One organization noted 

generally that it has ‘‘long been 

determined’’ that the government does 

not actually need to be aware of the 

threats and that there is no requirement 

to report the persecution to the 

government if doing so ‘‘would be futile 

or place the applicant at greater risk of 

harm,’’ citing Bringas-Rodriguez v. 

Sessions, 850 F.3d 1051, 1062–72 (9th 

Cir. 2017) (en banc) and Lopez v. U.S. 

Att’y Gen., 504 F.3d 1341, 1345 (11th 

Cir. 2007). Another organization 

claimed that the rule disregards the 

‘‘well-documented fact’’ that oppressive 

governments utilize irregular forces for 

the purpose of denying their actions. 

The organization emphasized that 

chronic violence arises when a 

government is unwilling or unable to 

protect the life and liberty of its citizens, 

claiming that this government inaction 

puts people at risk of death. The 

organization concluded by alleging that 

the rule would send these individuals 

back ‘‘into mortal danger.’’ 

Another organization claimed this 

portion of the rule would violate the 

APA in at least six different ways. First, 

the organization alleged that the rule is 

contrary to law, as the INA does not 

state or imply that interpersonal or 

‘‘private’’ acts cannot give rise to 

asylum. Instead, the statute makes clear 

that such acts can do so if they ‘‘rise to 

the level of persecution, are taken on 

account of a protected ground, and are 

inflicted by actors the government is 

unable or unwilling to control.’’ Second, 

the organization claimed that it is 

‘‘manifestly unreasonable’’ to use the 

particular social group analysis to 

‘‘place entire groups of persecutors 

outside the asylum laws,’’ noting that 

the particular social group analysis is 

dependent on the nature of the group to 

which the survivor belongs rather than 

the identity of the persecutor. Third, the 

organization alleged that a general 

prohibition of asylum in all situations 

where the government is ‘‘uninvolved’’ 

in the persecution is ‘‘arbitrary and 

contrary to law,’’ claiming that the 

substitution of ‘‘uninvolved’’ for 

‘‘unable or unwilling’’ would render 

large categories of previously 

meritorious claims ineligible. The 

organization also emphasized that the 

rule would require survivors of 

persecution by non-state actors to report 

persecution to authorities ‘‘even where 

laws against gender-based violence are 

limited or non-existent.’’ The 

organization noted that current asylum 

law allows applicants to submit 

evidence as to why reporting this type 

of violence was impossible or 

dangerous, claiming there is no 

legitimate justification for the 

prohibition of such evidence. 

Fourth, the organization claimed that 

the NPRM’s use of the word ‘‘private’’ 

implicitly raises the ‘‘unable or 

unwilling’’ standard on some claims. 

Fifth, the organization contended that 

the ‘‘interpersonal’’ category is ‘‘even 

more sweeping’’ and therefore contrary 

to the INA, claiming that the plain 

meaning of the ‘‘interpersonal’’ violence 

category would bar all asylum claims. 

Sixth, the organization claimed the 

‘‘interpersonal’’ and ‘‘private’’ categories 

violate the INA to the extent that, in the 

Departments’ view, they apply to 

domestic or other gender-based 

violence. The organization claimed this 

is ‘‘at odds’’ with the evidence, which 

clearly shows that this type of violence 

is ‘‘not simply a private matter based on 

personal animosity.’’ The organization 

also claimed that the application of the 

‘‘interpersonal’’ and ‘‘private’’ categories 

to domestic and other gender-based 

violence would violate constitutional 

equal protection principles because the 

presumption created by these categories 

would have a disproportionate effect on 

women (as women are much more likely 

to experience violence by an intimate 

partner). 

Similarly, another organization noted 

that this portion of the rule is especially 

damaging to gender and LGBTQ+ 

related claims because ‘‘many are rooted 

in intimate partner or family violence 

that government actors choose to ignore 

as private or family matters.’’ The 

organization emphasized the BIA’s 

decision in Matter of A–R–C–G–, 26 I&N 

Dec. 338 (BIA 2014), holding that a 

Guatemalan woman should be granted 

asylum on the basis of abuse by her 

former spouse, noting that this 

precedent has allowed many female 

asylum seekers from Central America to 

win cases. One organization stated that 

‘‘the very indifference’’ of governmental 

authorities to the plight of survivors of 

gender-based violence proves that 

persecution exists, emphasizing there is 

‘‘no good reason’’ for denying the claims 

of survivors who can show their 

government’s failure to protect them. 

Another organization claimed the rule 

‘‘condemns women to endure various 

forms of domestic- and gender-based 

violence, stripping them of the 

humanitarian protection of the United 

States.’’ The organization contended 

that this ‘‘upends’’ the longstanding 

recognition and protection of particular 

social groups, across circuits, on the 

following grounds: Femicide, Perdomo 

v. Holder, 611 F.3d 662, 662 (9th Cir. 

2010); honor killings, Sarhan v. Holder, 

658 F.3d 649, 649 (7th Cir. 2011); female 

genital mutilation, Mohammed v. 

Gonzales, 400 F.3d 785, 785 (9th Cir. 

2005); arranged or inescapable 

marriages, Acosta Cervantes v. Barr, 795 

F. App’x 995, 995 (9th Cir. 2020); and 

‘‘other forms of domestic violence,’’ 

Mun ̃ oz-Ventura v. Barr, 799 F. App’x 

977, 977 (9th Cir. 2020). One 

organization contended that, by 

dismissing violence against women or 

LGBTQ+ individuals as an 

‘‘interpersonal dispute,’’ the rule fails to 

recognize that gender-based violence is 

a ‘‘social means to subordinate rather 

than an individual problem’’ and 

requires comprehensive responses. 

Response: The Departments disagree 

that the rule is contrary to law. At the 

outset, the Departments acknowledge 

that the INA does not specify whether 

interpersonal or ‘‘private’’ acts can give 

rise to an asylum claim. While the 

actions of private actors are also 

discussed elsewhere in this 


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47The Departments note that longstanding law 

has precluded private acts of violence as a basis for 

asylum or similar protection for many years. See, 

e.g., Matter of Pierre, 15 I&N Dec. 461, 462–63 (BIA 

1975) (strictly personal dispute between a husband 

and wife does not state a claim on account of race, 

religion, political opinion or membership in a 

particular social group). Further, circuit courts have 

also held that private acts of violence are not a 

cognizable basis for asylum, though their decisions 

are sometimes rooted in other bases. See, e.g., Prado 

v. U.S. Att’y Gen., 315 F. App’x 184, 188 (11th Cir. 

2008) (‘‘Ordinary criminal activity and acts of 

private violence are generally not ‘persecution’ 

within the meaning of 8 U.S.C. 1101(a)(42)(A).’’). 

The Departments’ consideration of private violence 

under the definition of particular social group in no 

way precludes its consideration in connection with 

the other requirements necessary for asylum, 

including nexus and persecution. 

48The Departments note that certain activities or 

associations that trigger terrorism-related 

inadmissibility grounds may potentially be the 

subject of discretionary group-based, situational, or 

individual exemptions. In such cases, they would 

not constitute bars to asylum eligibility. 

rulemaking,47 the Departments will now 

address concerns as they were raised 

specifically in the context of 

establishing a particular social group. 

As the commenters contend, acts can 

give rise to asylum claims only if they 

are taken on account of a protected 

ground, such as ‘‘particular social 

group.’’ And, as discussed above, the 

term ‘‘particular social group’’ is 

ambiguous. As the Departments have set 

forth a reasonable determination that 

the term would generally not include, 

without more, social groups predicated 

upon private criminal acts of which 

governmental authorities were unaware 

or uninvolved, such private acts would 

generally not be sufficient grounds for 

asylum. See Matter of A–B–, 27 I&N Dec. 

at 335 (‘‘groups defined by their 

vulnerability to private criminal activity 

likely lack the particularity’’ required 

for cognizability). 

The commenter’s allegations that the 

rule violates the APA are predicated on 

presumptions that the rule categorically 

excludes certain types of social group 

claims. As stated above, ‘‘the regulation 

does not foreclose that, in rare 

circumstances, such facts could be the 

basis for finding a particular social 

group, given the fact- and society 

specific nature of this determination.’’ 

85 FR at 36279; see Grace II, 965 F.3d 

at 906 (‘‘[T]he record in this case does 

not support the asylum seekers’ 

argument that [the Departments] have 

erected a rule against asylum claims 

involving allegations of domestic and/or 

gang violence.’’). The Departments 

believe that the listed social groups 

generally fail to meet the requirements 

for cognizability, not because, as the 

commenter alleged, of the identity of the 

persecutor, but rather because such 

groups are generally defined by the 

group members’ vulnerability to private 

criminal activity. See Matter of A–B–, 27 

I&N Dec. at 335. 

The Departments note that social 

groups predicated on domestic or other 

gender-based violence, insofar as the 

group is defined by private criminal acts 

of which governmental authorities were 

unaware or uninvolved, will generally 

not be cognizable, as they, like all social 

groups defined by such acts, likely lack 

the requisite particularity due to the 

‘‘broad swaths of society [that] may be 

susceptible to victimization’’ or social 

distinction to be cognizable. Matter of 

A–B–, 27 I&N Dec. at 335–36. Similarly, 

the Departments disagree with 

commenter’s assertions that the rule 

would implicitly raise the ‘‘unwilling or 

unable’’ standard, as the Departments 

believe that social groups defined by 

private criminal acts of which 

governmental authorities were unaware 

or uninvolved are not cognizable under 

the particular social group analysis of 

immutability, particularity, and social 

distinction, irrespective of the 

government’s inability or unwillingness 

to help, which is an independent factor 

in considering asylum eligibility. 

With respect to commenters’ concerns 

about this rule’s potential effect on 

LGBTQ and gender-based-violence 

related claims, the Departments note 

again that they have codified a longstanding test for determining 

cognizability of particular social groups 

and have set forth a list of common fact 

patterns involving particular-socialgroup claims that generally will not 

meet those well-established 

requirements. The Departments did not 

first determine a set of groups that 

should or should not be cognizable and 

craft a rule around that determination. 

To the extent that commenters assert 

that circuit case law conflicts with the 

Departments’ rule, such conflicts would 

warrant re-evaluation in appropriate 

cases by the circuits under wellestablished principles. See Brand X, 545 

U.S. at 982. 

4.1.7. Past or Present Terrorist Activity 

or Association 

Comment: At least one commenter 

raised concerns with the ‘‘past or 

present terrorist activity or association’’ 

base for not favorably adjudicating a 

particular social group. The commenter 

asserted that the terms ‘‘terrorist 

activity’’ and ‘‘terrorist association’’ 

were overbroad and, as a result, would 

result in unnecessary denials of asylum 

claims. Moreover, the commenter stated 

that the Departments did not provide 

‘‘empirical research’’ to support the 

provision’s inclusion, but rather relied 

on the ‘‘unproven’’ statement that 

allowing particular social groups 

defined by terrorist activity or 

association would reward membership 

in organizations that cause harm to 

society and create a perverse incentive 

to engage in reprehensible or illicit 

behavior as a means of avoiding 

removal. 

Response: The Departments disagree 

that the terms ‘‘terrorist activity’’ or 

‘‘terrorist association’’ are overbroad. 

The Departments are using the ‘‘terrorist 

activity’’ language that Congress clearly 

defined in the INA. See INA 

212(a)(3)(B)(iii), 8 U.S.C. 

1182(a)(3)(B)(iii). To the extent the 

commenter alleges that the statutory 

definition itself is overbroad, such 

arguments are outside the scope of this 

rule. Moreover, the Departments do not 

believe the phrase ‘‘terrorist 

association’’ is overly broad. The 

Departments intend for this provision to 

apply to those who voluntarily 

associate, or have previously voluntarily 

associated, with a terrorist organization. 

The Departments believe the ordinary 

meaning of the term provides sufficient 

definition for adjudicators to apply. See, 

e.g., ‘‘Associate’’ Definition, MerriamWebster, https://www.merriamwebster.com/dictionary/associate 

(defined as ‘‘join[ing] as a partner, 

friend, or companion’’ with an example 

of ‘‘They were closely associated with 

each other during the war’’). 

Although the Departments do not 

maintain data on the number of prior 

asylum grants based on a terrorismrelated particular social group, the 

Departments believe it is reasonable 

that, as a general matter, persons 

applying for asylum in the United States 

cannot claim asylum based on their 

participation in, or association with, 

terrorism. For example, Congress 

included certain terrorism-related 

activities as a categorical bar from 

asylum eligibility. See INA 

208(b)(2)(A)(v), 8 U.S.C. 

1158(b)(2)(A)(v).48 Similarly, although 

this is not a categorical bar to terrorismbased particular social groups, generally 

disfavoring such groups is consistent 

with this Congressional intent. 

Finally, the Departments note that 

association with past or current terrorist 

activity is at least as ‘‘anti-social’’ as 

association with criminal gang activity, 

if not more so, and the latter has been 

rejected as a basis for a particular social 

group by multiple courts. Cf. Arteaga, 

511 F.3d at 945–46 (‘‘We cannot 

conclude that Congress, in offering 

refugee protection for individuals facing 

potential persecution through social 

group status, intended to include 

violent street gangs who assault people 

and who traffic in drugs and commit 


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theft.’’); Cantarero, 734 F.3d at 85–86 

(‘‘The BIA reasonably concluded that, in 

light of the manifest humanitarian 

purpose of the INA, Congress did not 

mean to grant asylum to those whose 

association with a criminal syndicate 

has caused them to run into 

danger. . . . Such recognition would 

reward membership in an organization 

that undoubtedly wreaks social harm in 

the streets of our country. It would, 

moreover, offer an incentive for aliens to 

join gangs here as a path to legal 

status. . . . Accordingly, the BIA’s 

interpretation merits our deference 

under Chevron.’’); Elien, 364 F.3d at 397 

(‘‘Such recognition unquestionably 

would create a perverse incentive for 

[aliens] coming to or residing in the 

United States to commit crimes, thereby 

immunizing themselves from 

deportation. . . . Moreover, the BIA has 

never extended the term ‘social group’ 

to encompass persons who voluntarily 

engaged in illicit activities.’’). 

Consequently, the Departments decline 

to follow a suggestion that terrorist 

association should generally be 

considered a cognizable particular 

social group. 

4.1.8. Past or Present Persecutory 

Activity or Association 

Comment: One organization claimed 

that the NPRM’s proposed bar on ‘‘past 

persecutory activity,’’ 85 FR at 36279, is 

contrary to the APA in the same manner 

as the proposed bar on past criminal 

conduct. The organization alleged that 

listing a scenario involving past 

persecutory activity as generally noncognizable would create even greater 

uncertainty, however, because ‘‘past 

persecutory activity’’ is not defined in 

the NPRM. 

Response: Although the commenter’s 

broad and unspecified allegations make 

a response difficult, the Departments do 

not believe this rulemaking is in 

violation of the APA for reasons given 

in both the NPRM and this final rule, 

and they reiterate that this rulemaking 

does not impose any categorical bar as 

suggested by the commenter. The 

Departments have provided descriptions 

and reasons for all the provisions and 

have established a reasonable basis for 

the rule. With respect to the 

commenter’s concerns about what 

conduct falls under the term ‘‘past 

persecutory activity,’’ the Departments 

note that this rulemaking, including the 

NPRM, sets forth clear guidelines about 

what conduct constitutes persecutory 

activity, 85 FR at 36280–81, and thus, 

that this should serve as a guide for 

conduct involving past persecutory 

activity. 

4.1.9. Status as an Alien Returning From 

the United States 

Comment: One organization noted 

that the rule would generally not find a 

particular social group to be cognizable 

if based on ‘‘status as an alien returning 

from the United States.’’ The 

organization expressed concern about 

this, noting that there have been 

circumstances where ‘‘Westernized Iraqi 

citizens have faced persecution and 

potential torture based on their 

perceived ties to the United States.’’ The 

organization emphasized that each 

proposed particular social group should 

be evaluated on a case-by-case basis 

instead of being subjected to general 

rules that would result in ‘‘blanket 

denials.’’ 

Another organization claimed that 

‘‘status as an alien returning from the 

United States’’ is on its face an 

‘‘immutable, socially distinct, and 

particular’’ characteristic. The 

organization emphasized that past 

association as a former resident of the 

United States is similar to one’s 

membership in a family or one’s specific 

history because it is a particular 

characteristic that cannot be changed. 

The organization alleged that this 

portion of the rule could result in the 

denial of asylum to individuals 

persecuted due to their real or imputed 

association with the United States by ‘‘a 

regime that is hostile to this country, or 

its culture and values.’’ 

One organization disagreed with the 

claim that any group based on 

individuals returning from the United 

States will be ‘‘too broad’’ to qualify as 

a particular social group, 85 FR at 

36279, claiming this is ‘‘factually and 

legally erroneous.’’ The organization 

alleged that, as a factual matter, the 

number of individuals returning to some 

countries from the United States is 

small. As a legal matter, the 

organization claimed that whether a 

group is potentially large would not, by 

itself, mandate the conclusion that the 

group is not particular. 

Response: The Departments reiterate 

once again that this rule does not 

foreclose the possibility of pursuing and 

prevailing upon a particular social 

group claim defined by the applicant’s 

status as an alien returning from the 

United States. ‘‘[T]he regulation does 

not foreclose that, in rare circumstances, 

such facts could be the basis for finding 

a particular social group, given the factand society specific nature of this 

determination.’’ 85 FR at 36279; see 

Grace II, 965 F.3d at 906 (‘‘[T]he record 

in this case does not support the asylum 

seekers’ argument that [the 

Departments] have erected a rule against 

asylum claims involving allegations of 

domestic and/or gang violence.’’). If 

applicants believe that their proposed 

group as an alien returning from the 

United States meets one of the 

exceptions to the general rule based on, 

as commenter’s proposed, the group 

meeting the particularity requirement, 

the applicants may propose such a 

group. 

The Department disagrees with 

comments that individuals returning 

from the United States can, generally, 

demonstrate that their group is 

sufficiently particular or socially 

distinct. See, e.g., Reyes v. Lynch, 842 

F.3d 1125, 1139 (9th Cir. 2016) 

(upholding BIA’s determination that a 

proposed social group of deportees ‘‘was 

too amorphous, overbroad and diffuse 

because it included men, women, and 

children of all ages, regardless of the 

length of time they were in the United 

States, the reasons for their removal, or 

the recency of their removal’’); Lizama, 

629 F.3d at 446 (rejecting proposed 

group of ‘‘young, Americanized, well-off 

Salvadoran male deportees with 

criminal histories who oppose gangs’’ as 

‘‘clearly fail[ing] to meet the required 

criteria’’ (internal quotations omitted)). 

However, to the extent that commenters 

believe there may be exceptions to this 

general rule, ‘‘the rule does not foreclose 

that, in rare circumstances, such facts 

could be the basis for finding a 

particular social group, given the factand society specific nature of this 

determination.’’ 85 FR at 36279; see 

Grace II, 965 F.3d at 905. 

4.2. Political Opinion 

Comment: Commenters argued that 

the proposed definition of political 

opinion is inconsistent with legislative 

intent and international law, which, 

commenters asserted, require the term 

to be construed broadly. Specifically, 

commenters asserted that Congress, in 

passing the Refugee Act of 1980, aimed 

to align the United States definition of 

‘‘refugee’’ with the United States’ 

obligations under the 1967 Protocol 

relating to the Status of Refugees. 

Commenters provided excerpts from the 

House Report for the Refugee Act of 

1980 and UNHCR guidance stating the 

term should be construed broadly. 

Commenters also argued that Congress 

is the branch that holds the plenary 

power and that the proposed edits to 8 

CFR 208.1(d) are an attempt ‘‘to do an 

end run around the legislative intent’’ of 

section 101(a)(42) of the Act, 8 U.S.C. 

1101(a)(42). 

Commenters expressed concern that 

the proposed definition of political 

opinion is inconsistent with Federal 

court and BIA precedent. Commenters 


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49As discussed herein, the rule itself applies 

prospectively to applications filed on or after its 

effective date; accordingly, it will have no effect on 

pending applications, contrary to commenters’ 

concerns. However, the rule also codifies many 

principles that are already applicable through 

binding case law. Thus, although the rule itself may 

not apply to pending applications, applicable case 

law that is reflected in the rule may nevertheless 

still apply to pending applications. 

cited Cardoza-Fonseca, 480 U.S. 421, to 

argue that the proposed definition of 

‘‘political opinion’’ is too narrow. One 

commenter also cited cases from the 

United States Courts of Appeals for the 

Second, Third, and Ninth Circuits, 

which the commenter argued evidence 

that the term political opinion should be 

construed broadly. Another commenter 

noted that Federal courts have 

recognized political opinions based on 

feminist beliefs, labor organizing, 

environmental beliefs, support of 

student organizations, and gangs. With 

respect to BIA precedent, one 

commenter asserted that the NPRM 

incorrectly interpreted Matter of S–P–, 

21 I&N Dec. 486 (BIA 1996), and that the 

case actually instructs that the term 

political opinion should be construed 

broadly. The commenter similarly 

asserted that the BIA decisions in Matter 

of D–V–, 21 I&N Dec. 77 (BIA 1993), and 

Matter of N–M–, 21 I&N Dec. 526 (BIA 

2011), support a broad reading of 

political opinion. One commenter cited 

the third edition of the Webster’s New 

World College Dictionary (1997) to 

argue that the definition of the word 

‘‘political’’ is unambiguously 

understood to include more than just 

opposition to a particular regime. 

Accordingly, the commenter argued, the 

proposed definition of political opinion 

contradicts the plain meaning of the 

INA. 

Commenters expressed concern that 

political opinions not directly related to 

regime change would be considered 

invalid under the proposed definition. 

As an example, one commenter asserted 

that Wang Quanzhang (who the 

commenter stated is a human rights 

defender in China) and Ivan Safronov (a 

Russian journalist who, the commenter 

stated, was charged with treason for 

contributing to a prominent business 

newspaper) would not have valid 

political opinions under the proposed 

definition. Commenters asserted that 

individuals could hold valid political 

opinions unrelated to regime change 

such as LGBTQ rights advocacy, voter 

registration advocacy, and opinions on 

the publication of data about COVID–19 

in countries that seek to hide the 

pandemic’s impact. One commenter 

noted that in some nations the 

geopolitical landscape renders a 

distinction between opposition to a 

specific regime indistinguishable from 

political opinions about cultural issues. 

Commenters similarly expressed 

concern that gang-based claims would 

be rejected under the proposed 

definition. Commenters asserted that 

gangs can have substantial political 

power and that some nations are unable 

to control gang violence and influence. 

One commenter stated that the United 

States Department of State recognized 

this reality in its 2019 Country Reports 

on Human Rights Practices. Other 

commenters cited provisions of the 

UNHCR Guidelines on International 

Protection noting that gang-based and 

gender-based claims can be valid. 

Commenters also expressed concern 

with the ‘‘absent expressive behavior’’ 

language in proposed 8 CFR 208.1(d) 

and 8 CFR 1208.1(d), asserting that 

section 208(b) of the Act, 8 U.S.C. 

1158(b), does not require protected 

grounds to be expressed in a particular 

way and that ‘‘political opinion,’’ not 

‘‘political activity’’ is the protected 

ground. Commenters asserted that the 

proposed definition contradicts UNHCR 

Guidance on expressing opinions. 

Commenters argued that ‘‘absent 

expressive behavior’’ is ‘‘antithetical to 

the concept of an imputed political 

opinion against a non-state 

organization’’ and that it is inconsistent 

with Federal case law that has 

recognized imputed political opinions 

against gangs that fall outside of the 

proposed definition of expressive 

behavior. 

One commenter expressed concern 

that the proposed definition of political 

opinion ‘‘frustrates the reliance 

interests’’ of ‘‘thousands’’ of individuals 

whose asylum claims are based on 

political opinions under the current 

understanding of the concept. The 

commenter expressed concern that 

individuals with pending applications 

would ‘‘have a much lower likelihood of 

obtaining relief under the proposed 

rule.’’ 

Response: In regards to commenters’ 

concerns that the final rule contravenes 

various Federal circuit court decisions, 

the Departments note that the disparity 

in interpretations of the term political 

opinion is a partial motive for the 

amendment. As discussed in the NPRM, 

this rule will provide clarity in an area 

of conflicting case law that has made 

uniform application challenging for 

adjudicators. 

One commenter suggested that the 

Departments were ‘‘seek[ing] to erase all 

precedent that is favorable to asylum 

seekers.’’ The Departments deny this 

purported motive. As mentioned in the 

NPRM, the purpose behind the 

amendments surrounding political 

opinion is to provide clarity to 

adjudicators, avoid further strain on the 

INA’s definition of ‘‘refugee,’’ and to 

acknowledge that the statutory 

requirements and general understanding 

of political opinion is intended to 

advance or further a discrete cause 

related to political control of a state. 

A commenter expressed concern that 

the Departments failed to recognize that 

many asylum seekers flee their 

homelands because their governments 

are unable or unwilling to control nonstate actors, including international 

criminal organizations. The 

Departments do not disagree that this 

may be the motivation for some aliens 

to flee their homelands. However, that 

fact alone does not create a basis for 

protection under the immigration laws. 

Asylum and statutory withholding of 

removal are narrowly tailored—allowing 

for the discretionary grant of protection 

from removal in the case of asylum and 

granting protection from removal in the 

case of withholding—to aliens who 

demonstrate that they meet specific 

eligibility criteria. The asylum laws 

were not created to address any 

misfortune that may befall an alien. 

Rather, asylum generally is available to 

individuals who are able to establish, 

among other things, that the harm they 

experienced or fear was (or there is a 

well-founded basis to believe would be) 

inflicted on account of a protected 

ground. The rule will improve the 

system by creating a clearer definition of 

political opinion, which, in turn, will 

assist in the expeditious processing of 

meritorious claims. 

Several commenters listed various 

opinions which, commenters’ opined, 

would no longer fit within the political 

opinion category. The Departments 

acknowledge that the rule codifies a 

specific definition for articulating 

political opinion claims, though it also 

incorporates existing case law 

principles.49 As explained in the NPRM, 

the Departments seek to provide clear 

standards for adjudicators to determine 

political opinion claims. For example, if 

political opinion were expanded to 

include opposition to international 

criminal organizations, it would 

‘‘interfere with the other branches’ 

primacy in foreign relations,’’ and 

‘‘strain the language of’’ INA 

101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A). 

See Saladarriaga v. Gonzales, 402 F.3d 

461, 467 (4th Cir. 2005) (holding that an 

individual’s cooperation with the DEA, 

even if it stemmed from disapproval of 

a drug cartel, did not constitute a 

political opinion). Although the 

Departments agree that international 


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criminal organizations threaten both 

their fellow countrymen and the 

international community, the 

appropriate redress for such concerns is 

not to broadly grant asylum on the basis 

of political opinion. 

A commenter stated, without more, 

that the rule does not meet the 

materiality standard as outlined in the 

UNHCR guidance. The Departments 

decline to respond to commenters’ 

general assertions that the rule violates 

U.S. international treaty obligations. 

The Departments do not share a 

commenter’s concern that the NPRM 

defines ‘‘political opinion’’ narrowly to 

the extent that it runs afoul of 

congressional intent to define ‘‘refugee’’ 

broadly. The NPRM notes that since the 

enactment of the statute, the definition 

of ‘‘refugee’’ has been strained in 

various contexts. See Saladarriaga, 402 

F.3d at 467. Thus, one aspect of the 

motive behind the NPRM is to reduce 

the strain on the statute and return the 

statute to its original meaning. 

Additionally, the commenter claimed 

that the expansive definition was meant 

to mirror the 1967 Protocol relating to 

the Status of Refugees, the 1951 

Convention relating to the Status of 

Refugees, and UNHCR guidelines, 

which the commenter claims are now 

violated by the new definition. The 

Departments reject this conclusion. 

While UNHCR guidelines are 

informative, they are not prescriptive 

and thus not binding. See AguirreAguirre, 526 U.S. at 427 (‘‘The U.N. 

Handbook may be a useful interpretative 

aid, but it is not binding on the Attorney 

General, the BIA, or United States 

courts.’’); Cardoza-Fonseca, 480 U.S. at 

439, n.22 (‘‘Indeed, the Handbook itself 

disclaims such force[.]’’). 

In regards to the meaning of 

‘‘political,’’ the Departments note that, 

according to the Merriam-Webster 

Dictionary, ‘‘political’’ does have 

numerous definitions. See ‘‘Political’’ 

Definition, Merriam-Webster, https:// 

www.merriam-webster.com/dictionary/ 

political. However, all but one of those 

definitions relates specifically, and 

often solely, to governments. Moreover, 

the first definition refers only to the 

government. Similarly, the Departments 

reject commenters’ assertions that 

‘‘expressive behavior’’ is solely 

‘‘political action’’ and therefore distinct 

from political opinion. First, the 

Departments note that the definition of 

political opinion has been highly 

debated. See, e.g., Catherine Dauvergne, 

Toward a New Framework for 

Understanding Political Opinion, 37 

Mich. J. Int’l L. 243, 246–47 (2016) 

(‘‘The tension between [differing 

interpretations of political opinion] 

raises the overarching question of 

whether political opinion should be 

defined at all. It is evident that existing 

definitions have not provided sufficient 

guidance, and that there is no definition 

in the adjacent area of human rights law 

that can be logically imported . . . . [A] 

broadly agreed-upon definition of 

political opinion would advance the 

jurisprudence by providing a consistent 

standard.’’). The NPRM aims to clarify 

this definition for adjudicators. The 

Departments’ use of ‘‘expressive 

behavior’’ is directly related to the 

NPRM’s definition of political opinion 

as ‘‘intended to advance or further a 

discrete cause related to political 

control of a state.’’ 85 FR at 36280. 

Moreover, the Departments are unaware 

of any claim rooted in political opinion 

that did not contain some type of 

expressive behavior, and it is not clear 

how an opinion never uttered or 

conveyed could be recognized as a 

political opinion. 

Another commenter expressed 

concern that a particular state’s 

geopolitical landscape that would leave 

political opinions indistinguishable 

from cultural issues. First, BIA case law 

clearly holds that political opinion 

involves a cause against a state or 

political entity rather than against a 

culture. Matter of S–P–, 21 I&N Dec. at 

494. However, the Departments also 

acknowledge that there may be rare 

circumstances that will amount to 

exceptions to the general guiding 

principles laid out in the NPRM. For 

this reason, the rule uses ‘‘in general’’ to 

guide adjudicators in their 

determinations. 

4.3. Persecution 

Comment: Commenters expressed a 

wide range of concerns with the rule’s 

definitional standard for ‘‘persecution.’’ 

See 85 FR at 36280–81; 8 CFR 208.1(e), 

1208.1(e). Overall, commenters asserted 

that the Departments’ justification was 

generally flawed and inappropriately 

relied on case law to support its 

position. 

Commenters asserted that the 

proposed definition of persecution is 

inconsistent with the statutory meaning 

of the word. For example, commenters 

argued that the new definition 

impermissibly alters the definition of 

refugee so that it does not conform with 

the United Nations Convention and 

Protocol Relating to the Status of 

Refugees. Commenters said this violates 

the ‘‘fixed-meaning canon’’ of 

construction, which ‘‘holds that words 

must be given the meaning they had 

when the text was adopted.’’ 

Commenters considered the meaning of 

‘‘refugee,’’ which incorporates 

persecution, in the Refugee Act and 

argued that legislators intended for 

persecution to have a broad meaning in 

order to align the INA with U.S. 

international obligations. 

Commenters expressed concern that 

the proposed definition of persecution 

would exclude claims based on threats 

with no accompanying effort to carry 

out the threat or non-exigent threats. 

Commenters cited and discussed 

numerous Federal cases, including, 

Cardoza-Fonseca, 480 U.S. 421, and 

argued that Federal case precedent 

suggests that threats alone can be the 

basis of asylum claims. One commenter 

provided the example of death threats 

and noted that the United States Court 

of Appeals for the Sixth Circuit 

reasoned that an applicant need not 

wait for an actual attempt on his or her 

life before having a valid claim for 

asylum. Juan Antonio, 959 F.3d at 794. 

Another commenter similarly argued 

that a teenage girl who rebuffed 

inappropriate advances from a corrupt 

official would not be able to prevail on 

a persecution claim unless the official 

assaulted her. Commenters asserted that 

through the focus on severe and exigent 

threats, the proposed definition and the 

accompanying non-exhaustive list of 

factors would unlawfully lead to denials 

of asylum claims where applicants 

suffer significant harms that fall short of 

an immediate threat to life or property. 

At least one commenter asserted that 

this requirement of action would 

inappropriately eliminate claims based 

on a well-founded fear of future 

persecution. 

Commenters expressed concern that 

the proposed definition of persecution 

wrongfully fails to account for the 

possibility of cumulative harms rising to 

the level of persecution and argued that 

Federal case law instructs that 

adjudicators must consider cumulative 

harm. See, e.g., Herrera-Reyes v. Att’y 

Gen. of U.S., 952 F.3d 101, 109 (3d Cir. 

2020); Tairou v. Whitaker, 909 F.3d 702, 

707 (4th Cir. 2018); Matter of O–Z– & I– 

Z–, 22 I&N Dec. 23 (BIA 1998). 

Commenters expressed concern that the 

rule would prevent applicants who have 

suffered multiple distinct harms from 

prevailing on an asylum claim if each 

instance is deemed to be not severe or 

to be minor. To illustrate these 

concerns, one commenter discussed 

persecution suffered by the Rohingya 

and another detailed the case of one of 

his clients whose application, the 

commenter argued, would be granted 

under the current regulations and case 

law but denied under the persecution 

definition established by the rule. 

One commenter argued that because 

factors suggesting a lack of persecution 


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50Moreover, as also noted by the BIA, the 

Protocol itself leaves the determination of who 

should be considered a refugee, which inherently 

includes a determination of who is at risk of 

persecution, to each state party itself. Matter of 

Acosta, 19 I&N Dec. at 220. 

are overrepresented, adjudicators would 

not be engaging in case-by-case analysis 

and that the scales are inappropriately 

tipped towards finding a lack of 

persecution. 

Commenters expressed concern that 

the proposed definition inappropriately 

fails to consider how children and 

adults experience harm differently. 

Specifically, commenters argued that 

children may experience harm because 

of affiliation with family members and 

caregivers and that harm suffered by 

children may rise to the level of 

persecution even though the same harm 

would not rise to such a level for adults. 

Other commenters noted that it is not 

reasonable to expect children to seek 

protection from official sources. 

Commenters expressed concern that 

the proposed rule would require asylum 

seekers to demonstrate that persecutory 

laws would likely be enforced against 

them. As an example, commenters 

noted that asylum seekers coming from 

countries where same sex relationships 

carry the death penalty would not be 

able to secure asylum unless they could 

also establish that the law would likely 

be applied to them. In many cases, one 

commenter argued, such a penalty is not 

enforced frequently because sexual 

minorities are not likely to break the law 

given the risk of death. The commenter 

noted that the United States Court of 

Appeals for the Ninth Circuit has 

suggested that applicants with these 

types of claims should prevail. See 

Karouni v. Gonzales, 399 F.3d 1163, 

1173 (9th Cir. 2005). Commenters also 

noted that even if laws such as the 

above are not enforced, they are still 

persecutory in nature because of the fear 

and vulnerability that they create in 

those that could be subjected to the 

laws. 

Response: As stated in the proposed 

rule, the Departments added new 

paragraphs in 8 CFR 208.1 and 1208.1 

‘‘to define persecution and better clarify 

what does and does not constitute 

persecution.’’ 85 FR at 36280. These 

changes clarify that persecution is an 

extreme concept that requires severe 

harm and specify different examples of 

conduct that, consistent with case law, 

do not rise to the level of persecution. 

See 85 FR at 36280–81. They are not 

unduly restrictive, and it is wellestablished that not every harm that 

befalls an alien, even if it is unfair, 

offensive, unjust, or even unlawful, 

constitutes persecution. See Gjetani v. 

Barr, 968 F.3d 393, 397 (5th Cir. 2020) 

(‘‘Persecution is often described in the 

negative: It is not harassment, 

intimidation, threats, or even assault. 

Persecution is a specific term that does 

not encompass all treatment that our 

society regards as unfair, unjust, or even 

unlawful or unconstitutional.’’ 

(quotation omitted)); see also Ahmed v. 

Ashcroft, 341 F.3d 214, 217 (3d Cir. 

2003) (discrimination against stateless 

Palestinians in Saudi Arabia did not 

amount to persecution). 

Commenters are correct that the 

definition of ‘‘refugee’’ in the Act, first 

codified by the Refugee Act, 

incorporates ‘‘persecution’’ and that 

Congress enacted the Refugee Act in 

order to conform the Act with the 

United States’ obligations under the 

1967 Protocol relating to the Status of 

Refugees. See Matter of Acosta, 19 I&N 

Dec. at 219. However, commenters are 

incorrect that Congress intended for the 

Refugee Act to import any specific 

international or extrinsic definition of 

‘‘persecution.’’ Instead, as explained by 

the BIA, Congress used the term 

persecution prior to the Refugee Act, 

and, accordingly, it is presumed that 

Congress intended for that pre-Refugee 

Act construction to continue to apply. 

Id. at 222.50 That prior construction of 

the term included the notions that 

‘‘harm or suffering had to be inflicted 

upon an individual in order to punish 

him for possessing a belief or 

characteristic a persecutor sought to 

overcome . . . and either by the 

government of a country or by persons 

or an organization that the government 

was unable or unwilling to control.’’ Id. 

The standards for persecution contained 

in the proposed rule and this final rule 

align with this understanding of 

‘‘persecution,’’ and the rule is not 

incompatible with the Act or the United 

States’ international treaty obligations. 

Some of the standards implemented 

by this rule involve matters that the 

Federal courts have adjudicated 

inconsistently. For example, the rule 

establishes that repeated threats would 

not constitute persecution absent 

‘‘actual effort to carry out the threats.’’ 

8 CFR 208.1(e), 1208.1(e). Courts have 

held that threats, even with 

accompanying action, do not necessarily 

rise to the level of persecution. See, e.g., 

Gjetani, 968 F.3d at 398 (collecting 

cases and explaining that ‘‘[E]ven those 

subject to brutal physical attack are not 

necessarily victims of ‘persecution.’ 

Courts have condemned all manner of 

egregious and even violent behavior 

while concluding they do not amount to 

persecution.’’); see also QuijanoRodriguez v. Gonzales, 139 F. App’x 

910, 910–11 (9th Cir. 2005) (collecting 

cases). 

The Departments note that Federal 

courts have also held that threats 

without attempts to carry out the threat 

may at times constitute persecution. 

See, e.g., Duran-Rodriguez v. Barr, 918 

F.3d 1025, 1028 (9th Cir. 2019) 

(explaining that ‘‘death threats alone 

can constitute persecution’’ but ‘‘they 

constitute ‘persecution in only a small 

category of cases, and only when the 

threats are so menacing as to cause 

significant actual suffering or harm’ ’’ 

(citation omitted)). Threats ‘‘combined 

with confrontation or other 

mistreatment’’ are likely to be 

persecution; however, ‘‘cases with 

threats alone, particularly anonymous 

or vague ones, rarely constitute 

persecution.’’ Id. (internal citation 

omitted) (emphasis added); see also Lim 

v. INS, 224 F.3d 929, 936 (9th Cir. 2000) 

(‘‘In certain extreme cases, we have held 

that repeated and especially menacing 

death threats can constitute a primary 

part of a past persecution claim, 

particularly where those threats are 

combined with confrontation or other 

mistreatment. . . . Threats standing 

alone, however, constitute past 

persecution in only a small category of 

cases, and only when the threats are so 

menacing as to cause significant actual 

‘suffering or harm.’’). Even the case 

cited by commenters, Juan Antonio, 959 

F.3d at 794, noted that threats alone 

amount to persecution only when they 

are ‘‘of a most immediate and menacing 

nature’’; moreover, the respondent in 

that case experienced beatings and rape 

in addition to threats, rendering that 

case inapposite to the rule, id. at 793. 

The Departments believe that the rule 

reflects appropriate and reasonable lines 

drawn from the relevant case law 

regarding persecution, particularly due 

to the difficulty associated with 

assessing the credibility of an alleged 

threat, especially in situations in which 

the threat was made anonymously and 

without witnesses or the existence of 

other corroborating evidence. See Lim, 

224 F.3d at 936 (‘‘Furthermore, claims 

of threats are hard to disprove. A 

finding of past persecution raises a 

regulatory presumption of future 

persecution and flips the burden of 

proof . . . to show that conditions have 

changed to such a degree that the 

inference is invalid . . . . Flipping the 

burden of proof every time an asylum 

applicant claimed that he had been 

threatened would unduly handcuff the 

[government].’’). To the extent that the 

standards implemented by this rule 

conflict with case law interpreting what 

sorts of conduct rise to the level of 

persecution, the Departments invoke 


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51Specifically regarding commenters’ concerns 

that the rule’s standard that threats without 

accompanying action do not constitute persecution 

would undermine claims based on fear of future 

persecution, the Departments believe that the 

commenters are conflating past harms and 

determinations of past persecution with fear of 

future harm and determinations of a well-founded 

fear of future persecution. Indeed, it is difficult to 

understand how anyone could predict whether 

future threats will occur and difficult to conceive 

of a claim in which an alien alleges a fear of future 

threats but not a fear of future physical, mental, or 

economic harm. The real issue is the likelihood of 

future harm based on past threats, and the rule does 

not alter an alien’s ability to argue that past threats 

are evidence of either past persecution or a 

likelihood of future persecution. 

their authority to interpret the 

ambiguities of what constitutes 

persecution—an undefined term in the 

Act—outside the bounds of such prior 

judicial constructions. See Brand X, 545 

U.S. at 982; see also Grace II, 965 F.3d 

at 889 (noting that the term 

‘‘persecution’’ is ‘‘undefined in the 

INA’’); cf. Fernandez v. Keisler, 502 F.3d 

337, 347–48 (4th Cir. 2007) (applying 

Brand X to affirm the BIA’s rejection of 

the Fourth Circuit’s prior interpretation 

of section 101(a)(22) of the Act, 8 U.S.C. 

1101(a)(22), where the court’s prior 

interpretation did not rest on a 

determination that the statute was 

‘‘unambiguous’’). Moreover, in response 

to the commenters’ concerns, the final 

rule more clearly specifies the types of 

threats included within the definition 

such that menacing and immediate ones 

may still come within the definition 

consistent with the case law noted 

above. 

To the extent that aspects of 

persecution adjudications are not 

covered by the rule, the Departments 

expect adjudicators to conduct all 

determinations consistent with the law, 

regulations, and precedent. 

Accordingly, the rule does not conflict 

with case law explaining that harms 

must be considered cumulatively and in 

the aggregate, see, e.g., Matter of Z–Z– 

O–, 26 I&N Dec. 586, 589 (BIA 2015) 

(holding that applicant’s experiences 

did not amount to persecution ‘‘when 

considered either individually or 

cumulatively’’); Matter of O–Z– 

& I–Z–, 22 I&N Dec. at 25–26 

(considering incidents of harm ‘‘[i]n the 

aggregate’’), because it does not in any 

way direct adjudicators to blindly only 

consider harm suffered individually. In 

other words, adjudicators will still 

consider harms suffered by applicants 

in the aggregate. 

Similarly, the rule does not end caseby-case adjudications of whether 

conduct constitutes persecution. The 

Departments disagree with commenters 

that the Departments’ choice to frame 

persecution in the context of conduct 

that does not rise to the level of 

persecution while leaving open further 

adjudication of what conduct 

constitutes persecution in any way ‘‘tips 

the scales.’’ ‘‘Persecution is often 

described in the negative . . . .’’ 

Gjetani, 968 F.3d at 397. 

As noted by commenters, Federal 

courts have held that an applicant’s age 

is relevant for determining whether the 

applicant suffered persecution. See, e.g., 

Liu v. Ashcroft, 380 F.3d 307, 314 (7th 

Cir. 2004) (‘‘[A]ge can be a critical factor 

in the adjudication of asylum claims 

and may bear heavily on the question of 

whether an applicant was persecuted or 

whether she holds a well-founded fear 

of future persecution.’’). Commenters 

are incorrect, however, that the rule’s 

persecution standard conflicts with this 

instruction. Instead, the rule provides a 

general standard for persecution that is 

built around the severity of the harm. 8 

CFR 208.1(e), 1208.1(e). This focus on 

severity does not foreclose arguments or 

an adjudicator’s finding that harms 

suffered by an applicant are severe in 

their particular context given the 

applicant’s age or particular 

circumstances, even if such harms may 

not generally be considered severe for 

the average applicant. 

Regarding commenters’ concerns with 

the rule’s instruction that ‘‘[t]he 

existence of laws or government policies 

that are unenforced or infrequently 

enforced do not, by themselves, 

constitute persecution, unless there is 

credible evidence that those laws or 

policies have been or would be applied 

to an applicant personally,’’ the 

Departments note this standard is 

consistent with well-established law 

that ‘‘an asylum applicant can establish 

a well-founded fear of persecution by 

proving either a pattern or practice of 

persecution of a social group, of which 

the applicant has proven she is a 

member, or by proving the applicant 

will be singled out personally.’’ Ayele v. 

Holder, 564 F.3d 862, 870 (7th Cir. 

2009). Laws that are unenforced or 

enforced infrequently cannot 

demonstrate a pattern or practice of 

persecution, 8 CFR 208.13(b)(2)(iii), 

1208.13(b)(2)(iii), and without credible 

evidence that such laws would be 

applied to the applicant, the alien 

cannot demonstrate that he or she 

would be singled out individually for 

persecution, id. The rule does not alter 

these well-established precepts. Further, 

this requirement that the mere existence 

of a law, without more, is insufficient to 

rise to the level of persecution is in 

keeping with prior interpretations of 

persecution. For example, the BIA has 

explained that evidence of the 

enactment of a new law is not evidence 

of changed country conditions for the 

purposes of a motion to reopen 

‘‘without convincing evidence that the 

prior version of the law was different, or 

was differently enforced, in some 

relevant and material way.’’ Matter of S– 

Y–G–, 24 I&N Dec. 247, 257 (BIA 2007). 

This definition does not foreclose an 

applicant from citing to the existence of 

such laws as a part of his or her 

evidence to demonstrate past 

persecution or risk of future 

persecution. Nor does this requirement 

require an applicant to live in secret in 

order to avoid future harm. Further, the 

Departments expect that in many cases 

there may be credible evidence of the 

enforcement of such laws. For example, 

in the Ninth Circuit case cited by 

commenters, the government conceded 

at oral argument that the Lebanese 

government arrested individuals for 

homosexual acts and enforced the law at 

issue. Karouni, 399 F.3d at 1172. 

Finally, the rule’s persecution 

standard does not in any way foreclose 

claims based solely on a well-founded 

fear of future persecution. Instead, the 

adjudicator will consider whether the 

future harm feared by the applicant 

would constitute persecution under the 

rule’s standards. In other words, the 

adjudicator would consider whether the 

feared harm would be carried out by an 

individual with the intent to target the 

applicant’s belief or characteristic, 

would be severe, and would be inflicted 

by the government or by persons or 

organizations that the government is 

unable or unwilling to control.51

4.4. Nexus 

Comment: Numerous commenters 

expressed general disagreement 

regarding the rule’s nexus provisions, 

including referring to the list as an 

‘‘anti-asylum wish list.’’ Commenters 

claimed that it directed adjudicators to 

deny most claims. 

Some commenters alleged that the 

Departments were attempting to 

accelerate asylum hearings at the 

expense of due process; the commenters 

construed the rule as creating a 

checklist that bypasses careful 

consideration that due process requires. 

Others opined that the rule prioritized 

efficiency and expediency over fairness, 

due process, and ‘‘basic humanity.’’ 

Commenters stated the rule allowed 

‘‘blanket denials.’’ 

Another commenter opined that the 

rule was arbitrary because the 

Departments failed to consider the realworld implications of the proposal. 

Commenters expressed concern that, 

after the enactment of the rule, many 

asylum seekers would not have 

favorable adjudication of their claims, 


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including those based on violence from 

non-state actors. Others claimed the 

rule’s nexus components were 

‘‘completely incapable of supporting a 

meritorious asylum claim.’’ 

Commenters expressed concern that 

the rule precludes a mixed-motive 

analysis, reasoning that if an actor had 

any one, potential motive listed in the 

rule, it would be fatal to the claim, and 

that it violates the ‘‘one central reason’’ 

standard. INA 208(b)(1)(B)(i), 8 U.S.C. 

1158(b)(1)(B)(i). 

Some of the commenters’ 

disagreement surrounded Matter of 

A–B–, 27 I&N Dec. 316. One commenter 

opined that the rule is contrary to 

Matter of A–B–’s requirement of case-bycase rigorous analysis, and another 

commenter worried that the NPRM 

codified Matter of A–B–, despite, as the 

commenter characterized, its 

unfavorable treatment in various 

Federal courts. 

Other commenters argued that the 

nexus provisions conflated ‘‘categories 

of people’’ with requirements of the 

perpetrator’s mental state. 

Another commenter expressed 

concern that the rule included 

‘‘substantive changes to the law 

disguised in procedural attire.’’ 

Response: As an initial point, to the 

extent commenters’ points misstate the 

rule, address issues not raised by the 

rule, are rooted in erroneous reasoning, 

are contrary to facts or law, or reflect 

unsubstantiated and exaggerated 

melodramatic views of the rule, the 

Departments decline to adopt those 

points. The Departments do not wish to 

enact some ‘‘anti-asylum wish list’’ in 

this rule. In codifying the circumstances 

that are generally insufficient to support 

a nexus finding, the Departments are 

simply specifying common 

circumstances, consistent with case law, 

in order to provide clarity and efficiency 

for adjudicators. The Departments 

proposed these amendments in order to 

assist aliens with meritorious claims, as 

well as the entire immigration system. 

As with all regulations or policy 

changes, the Departments considered 

the effect this rule will have; 

accordingly, the Departments reject 

commenters’ allegations that such 

implications were not considered. 

The rule’s inclusion of these general 

guidelines for nexus determinations will 

not result in due process violations from 

adjudicators failing to engage in an 

individualized analysis. The rule 

provides a nonexhaustive list of eight 

circumstances that generally will not 

warrant favorable adjudication, but the 

rule does not prohibit a favorable 

adjudication depending on the specific 

facts and circumstances of the 

applicant’s particular claim. See 8 CFR 

208.1(f), 1208.1(f) (‘‘For purposes of 

adjudicating an application for asylum 

under section 208 of the Act or an 

application for withholding of removal 

under section 241(b)(3) of the Act, the 

Secretary, in general, will not favorably 

adjudicate the claims of aliens who 

claim persecution based on the 

following list of nonexhaustive 

circumstances’’); see also Grace II, 965 

F.3d at 906 (holding that the inclusion 

of qualifying terms like ‘‘in general’’ and 

‘‘generally’’ demonstrated that the 

government had not enacted a rule that 

all gang-based asylum claims would fail 

to demonstrate eligibility for asylum). In 

other words, the rule implicitly allows 

for those rare circumstances in which 

the specified circumstances could in 

fact be the basis for finding nexus given 

the fact-intensive nature of nexus 

determinations. See 85 FR at 36279. The 

amended regulations do not remove that 

fact-intensive nature from the nexus 

inquiry; rather, the amended regulations 

provide clarity in order to reduce the 

amount of time that adjudicators must 

spend evaluating claims. While the 

Departments did consider expediency 

and fairness, the Departments disagree 

that expediency is prioritized over and 

above due process. 

The Departments disagree with 

commenters’ concerns that the nexus 

provisions eliminate the mixed motive 

analysis or violate the ‘‘one central 

reason’’ standard. As discussed above in 

Section II.C.4.3 of this preamble, to the 

extent that aspects of persecution 

adjudications are not covered by the 

rule, the Departments expect 

adjudicators to conduct all 

determinations consistent with the law, 

regulations, and precedent. Here, the 

rule provides guidance on harms that 

would not be considered on account of 

one of the five protected grounds; the 

rule did not state, nor was it meant to 

be construed, that it precluded mixed 

motive analysis if the situation involved 

one of the five protected grounds in 

addition to one of the listed 

circumstances that would generally not 

be harm on account of a protected 

ground. Further, the preamble to the 

NPRM acknowledges mixed motive 

claims by quoting the REAL ID Act of 

2005, which defined the nexus element 

as requiring that one of the five 

protected grounds to be ‘‘at least one 

central reason for persecuting the 

applicant.’’ 85 FR at 36281. 

As to the concerns surrounding 

Matter of A–B–, the Departments 

reiterate the above discussion that 

adjudicators should continue to engage 

in individualized, fact-based 

adjudications as the rule provides only 

a list of circumstances that do not 

constitute harm on account of a 

protected ground in most, but not all, 

cases. Accordingly, the rule is 

consistent with the Attorney General’s 

admonishment, in Matter of A–B–, of the 

BIA for failing to engage in an 

individualized analysis and instead 

accepting the Government’s concessions 

as true. 27 I&N Dec. at 339. Regarding 

commenters’ further concerns that the 

rule should not codify Matter of A–B– 

given its varied treatment by the Federal 

courts, the Departments note that the 

United States Court of Appeals for the 

District of Columbia Circuit recently 

affirmed that Matter of A–B– holds that 

decision makers must make individual 

determinations on a case-by-case basis. 

Grace II, 965 F.3d at 905. The 

Departments also note that every circuit 

court addressing Matter of A–B– on its 

merits so far, as opposed to the unusual 

procedural challenge at issue in Grace 

II, has found it to be a valid exercise of 

the Attorney General’s authority. See, 

e.g., Gonzales-Veliz v. Barr, 938 F.3d at 

234 (‘‘In sum, because A–B– did not 

change any policy relating to asylum 

and withholding of removal claims, we 

reject Gonzales-Veliz argument that A– 

B– constituted an arbitrary and 

capricious change in policy.’’); DiazReynoso v. Barr, 968 F.3d 1070, 1080 

(9th Cir. 2020) (‘‘Accordingly, we 

decline to hold that the Attorney 

General’s decision in Matter of A–B– 

was arbitrary or capricious.’’). 

The Departments disagree with the 

commenters’ allegation that the 

Departments conflated nexus with other 

asylum requirements by not solely 

focusing on the perpetrator’s state of 

mind. The NPRM provides a list of 

situations that would not ordinarily be 

on account of a protected ground. 85 FR 

at 36281. The listed situations are 

attenuated from protected grounds to 

the extent that they do not meet the 

necessary nexus requirement. While 

some of the listed situations, 

particularly those related to the 

rationale for the harm, are closely 

related to other elements of asylum, 

including particular social group, a 

nexus analysis has often required an 

examination of the persecutor’s views. 

See Sharma v. Holder, 729 F.3d 407, 

412–13 (5th Cir. 2013); Caal-Tiul v. 

Holder, 582 F.3d 92, 95 (1st Cir. 2009). 

Thus, the inclusion of the situations 

related to rationale for the harm are 

consistent with case law. 

Finally, the Departments reiterate that 

the NPRM does not re-write asylum law 

as some commenters suggested. As 

noted in the NPRM and herein, the 

provisions of the rule related to the 

substance of asylum claims flows from 


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well-established statutory authority and 

relevant case law; thus, it does not ‘‘rewrite’’ substantive asylum law. The 

NPRM falls squarely within the 

Departments’ authority, which is 

discussed more fully in Section 6.5 of 

this preamble. 

4.4.1. Interpersonal Animus or 

Retribution 

Comment: Commenters expressed 

particular concerns regarding the 

specification that claims based on 

‘‘interpersonal animus or retribution’’ 

generally will not be favorably 

adjudicated. 8 CFR 208.1(f)(1), 

1208.1(f)(1). One commenter opined 

that it was arbitrary and irrational for 

the Departments to rely on Zoarab v. 

Mukasey, 524 F.3d 777, 781 (6th Cir. 

2008), in support of this change because 

that case’s facts were ‘‘unusual.’’ 

Commenters expressed confusion as 

to whether interpersonal modified both 

animus and retribution. If it did not 

modify retribution, commenters 

expressed concern that retribution, 

which they defined as punishment, 

encompasses all asylum claims. 

Other commenters remarked that all 

harm between people is interpersonal. 

Commenters also expressed concern 

that the inclusion of this situation 

would result in the erasure of mixed 

motive analysis as some ‘‘may engage in 

persecution for pretextual reasons to 

hide their bias.’’ 

Response: The inclusion of claims 

based on ‘‘interpersonal animus and 

retribution’’ as examples of claims that 

will generally not result in a favorable 

adjudication because the harm is not on 

account of a protected ground is 

consistent with longstanding precedent. 

The Departments cited to just one case, 

Zoarab, 524 F.3d at 781, to illustrate 

this point in the NPRM, but there are 

numerous other examples. See, e.g., 

Martinez-Galarza v. Holder, 782 F.3d 

990, 993 (8th Cir. 2015) (finding that 

harm ‘‘motivated by purely personal 

retribution’’ is not a valid basis for an 

asylum claim); Madrigal v. Holder, 716 

F.3d 499, 506 (9th Cir. 2013) (explaining 

that ‘‘mistreatment motivated purely by 

personal retribution will not give rise to 

a valid asylum claim’’); AmilcarOrellana v. Mukasey, 551 F.3d 86, 91 

(1st Cir. 2008) (holding that ‘‘[f]ear of 

retribution over personal matters is not 

a basis for asylum under the 

Immigration and Nationality Act’’); Jun 

Ying Wang v. Gonzales, 445 F.3d 993, 

998 (7th Cir. 2006) (acknowledging that 

the Seventh Circuit has ‘‘repeatedly 

held that a personal dispute cannot give 

rise to a claim for asylum’’); MolinaMorales v. INS, 237 F.3d 1048, 1052 

(9th Cir. 2001) (quoting Grava v. INS, 

205 F.3d 1177, 1181 n.3 (9th Cir. 2000), 

and reiterating that ‘‘[p]urely personal 

retribution is, of course, not’’ a 

protected ground, specifically, imputed 

political opinion); Blanco de Belbruno 

v. Ashcroft, 362 F.3d 272, 284 (4th Cir. 

2004) (finding that ‘‘[f]ears of 

‘retribution over purely personal matters 

. . .’ do[es] not constitute [a] cognizable 

bas[is] for granting asylum’’) (quoting 

Huaman–Cornelio v. BIA, 979 F.2d 995, 

1000 (4th Cir. 1992)). The Departments 

disagree that Zoarab is not an accurate 

example of this basic proposition 

despite commenters’ characterizations 

of the case’s particular facts. 

Furthermore, after the NPRM was 

promulgated, the Attorney General 

made the point more explicitly that 

interpersonal animus or retribution will 

generally not support a nexus finding 

required under the INA. See Matter of 

A–C–A–A–, 28 I&N Dec. 84, 92 (A.G. 

2020) (‘‘An alien’s membership in a 

particular social group cannot be 

incidental, tangential, or subordinate to 

the persecutor’s motivation for why the 

persecutor sought to inflict harm. . . . 

Accordingly, persecution that results 

from personal animus or retribution 

generally does not establish the 

necessary nexus.’’ (cleaned up)). ‘‘The 

reasoning for this is straightforward: 

When private actors inflict violence 

based on a personal relationship with a 

victim, then the victim’s membership in 

a larger group may well not be ‘one 

central reason’ for the abuse.’’ Id. 

(internal quotation marks omitted). 

To the extent commenters argue that 

any harm between two people is 

‘‘interpersonal,’’ commenters 

misinterpret both the cases supporting 

this provision and the rule itself. 

Instead, the point here is that a personal 

dispute between two people—for 

example a property dispute that causes 

some sort of altercation or a personal 

altercation because of one person’s 

involvement with a criminal 

investigation and prosecution—is not 

generally a valid basis for an asylum 

claim because it is not harm on account 

of a protected ground. Further, as set out 

in the rule, the qualifier ‘‘interpersonal’’ 

applies to both animus and retribution. 

Accordingly, commenters are incorrect 

that this provision states that any claim 

based on ‘‘retribution’’ would generally 

be insufficient and that all or most 

claims would fail as a result. 

Finally, the Departments reiterate the 

discussion above in Section II.C.4.4 of 

this preamble that the inclusion of these 

examples does not foreclose a mixed 

motive analysis. Accordingly, to the 

extent an applicant’s fear is based on 

harm partially motivated by an 

interpersonal dispute and partially 

motivated by another potentially 

protected ground, the adjudicator will 

consider those particular facts and 

circumstances to determine the 

applicant’s eligibility for asylum or 

statutory withholding of removal. 

4.4.2. Interpersonal Animus in Which 

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 Has Raised the Claim 

at Issue 

Comment: Commenters also raised 

concerns regarding this change in the 

NPRM described in this heading. One 

commenter argued that it was a ‘‘clear 

attempt to bar women from obtaining 

asylum based on domestic violence,’’ a 

claim that the commenter noted was an 

‘‘uncontroversial basis for asylum in 

many of our courtrooms until the 

Attorney General issued Matter of 

A–B–.’’ One commenter asserted that 

this amendment gives the persecutor a 

‘‘free pass’’ to persecute someone 

because that person will be unable to 

establish that another person suffered 

under this persecutor. Further, the 

commenter argued that asking an alien 

to investigate, while attempting to flee 

for safety, whether the persecutor had 

persecuted others was impossible, 

absurd, and arbitrary. Another 

commenter claimed that it violated the 

INA to require an alien to demonstrate 

that the persecutor ‘‘manifested animus 

against others.’’ One commenter 

claimed that the amendment was 

irrational because it held aliens seeking 

asylum through membership in a 

particular social group to a different and 

higher evidentiary standard than aliens 

seeking asylum through the other four 

protected grounds. The commenter 

asserted that this reading was supported 

by the BIA’s use of ejusdem generis in 

Matter of Acosta, 19 I&N Dec. 211, and 

the Attorney General’s favorable citation 

of the rule in Matter of L–E–A–, 27 I&N 

Dec. 581. Another commenter insisted 

that ‘‘interpersonal’’ was a meaningless 

modifier. 

Response: The Departments, based on 

prior case law, decided that 

demonstration of animus against other 

members of the particular social group 

is generally necessary to establish 

nexus. 85 FR at 36281; see also Matter 

of A–C–A–A–, 28 I&N Dec. 84, 92 (A.G. 

2020) (‘‘Furthermore, if the persecutor 

has neither targeted nor manifested any 

animus toward any member of the 

particular social group other than the 

applicant, then the applicant may not 

satisfy the nexus requirement.’’). The 

focus of the nexus requirement is 

membership in the group, INA 


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52The Departments also note that the 

commenters’ example of an ‘‘initial victim’’ 

necessarily presumes both that there are other 

victims and that the alien knows or will know of 

them. Consequently, that example would fall 

outside of the rule’s purview in any event. 

53Further, persecutors are not brought to justice 

under U.S. asylum law nor should it be viewed that 

way. The Departments are not giving persecutors 

‘‘one free pass’’ because they are often not dealing 

with the persecutors themselves. 

101(a)(42), 8 U.S.C. 1101(a)(42), and by 

definition, a ‘‘group’’ encompasses more 

than one individual. Thus, an alleged 

persecutor who has no interest in 

harming other individuals ostensibly in 

that group is generally not seeking to 

persecute one individual on account of 

his or her membership in that alleged 

particular social group. Without such 

animus against other group members, 

the motivation would appear to be 

personal, rather than on account of 

membership in the group, and a 

personal dispute, as discussed above, is 

generally insufficient on its own to 

qualify the applicant for the relief of 

asylum. See Madrigal, 716 F.3d at 506. 

Asylum law is not meant to provide 

redress for every victim of crime no 

matter how sympathetic those victims 

may be. Accordingly, in order to 

demonstrate that an alien was 

persecuted ‘‘on account of’’ a particular 

social group based on interpersonal 

animus, the alien will ordinarily need to 

demonstrate that the persecutor has 

targeted or manifested an animus 

against someone else in that particular 

social group. Because an alien will 

necessarily articulate a particular social 

group that is socially distinct in order 

for the group to be cognizable in the first 

instance, it is reasonable to expect the 

alien to be able to articulate whether the 

alleged persecutor has sought to harm 

other members of that group. The rule 

does not require aliens to investigate or 

ask their alleged persecutors anything; 

rather, the aliens should already have 

evidence about the persecutor’s motives 

in order to advance a valid asylum 

claim in the first instance, especially in 

cases where the alleged persecutor is the 

government. 

Despite the inclusion of this ground 

as a statement of one type of claim that 

is generally incapable of supporting an 

application for relief, the Departments 

reject commenters’ interpretation of this 

provision as a bar. Rather, as the 

Departments have detailed above, the 

rule itself allows for circumstances 

where a listed situation, based on the 

specific facts, will support a nexus 

finding. For example, as noted by 

commenters, an applicant who is a 

persecutor’s initial victim may argue 

that despite the persecutor’s lack of 

action against other group members, the 

applicant’s dispute with the persecutor 

is in fact on account of the protected 

ground and not on account of a nonprotected personal concern.52

Accordingly, commenters’ suggestion 

that each persecutor will have a ‘‘free 

pass’’ is also incorrect.53

Additionally, the Departments 

disagree that this provision evidences 

discriminatory intent against a 

particular class of asylum applicants. 

The rule is designed to provide 

expedited adjudication of meritorious 

claims as well as increased clarity and 

uniformity—a problem that commenters 

highlighted by noting that ‘‘many,’’ but 

not all, courts held a particular standard 

regarding applications premised on 

domestic violence. 

The Departments do not believe that 

this requirement violates the INA, and 

without a more specific comment, they 

are unable to respond. 

This provision is not irrational and 

does not hold aliens relying on 

membership in a particular social group 

to a higher evidentiary standard. 

Although particular social group is a 

more amorphous category than race, 

religion, nationality, or political 

opinion—and, thus, more in need of 

definitional clarity—each protected 

ground requires demonstration of the 

same base elements: Persecution or a 

well-founded fear of persecution on 

account of a protected ground. 

Further, ‘‘interpersonal’’ is not a 

meaningless modifier. The Departments 

use the term ‘‘interpersonal’’ to 

differentiate instances of animus and 

dispute between two private parties 

from instances of animus and dispute 

between a private individual and a 

government official. 

4.4.3. Generalized Disapproval of, 

Disagreement With, or Opposition to 

Criminal, Terrorist, Gang, Guerilla, or 

Other Non-State Organizations Absent 

Expressive Behavior in Furtherance of a 

Discrete Cause Against Such 

Organizations Related To Control of a 

State or Expressive Behavior That is 

Antithetical to the State or a Legal Unit 

of the State 

Comment: Commenters expressed 

concerns regarding the required 

analysis, the underlying intent, and the 

necessary elements of the inclusion of 

‘‘generalized disapproval of, 

disagreement with, or opposition to 

criminal, terrorist, gang, guerilla, or 

other non-state organizations absent 

expressive behavior in furtherance of a 

discrete cause against such 

organizations related to control of a state 

or expressive behavior that is 

antithetical to the state or a legal unit of 

the state’’ in the list of circumstances 

that will generally not support a nexus 

finding. Specifically, some commenters 

argued that this provision undermines a 

rigorous fact-based analysis as it 

‘‘categorically state[s] that certain 

opinions can never be political.’’ The 

commenters urged that this type of 

labeling is incorrect and improper. 

Additionally, commenters asserted that 

the provision ‘‘evidences a clear 

discriminatory intention to utterly 

annihilate the entire genres of asylum 

cases where opposition to gangs 

constitutes a political opinion.’’ Another 

commenter claimed that the rule was 

‘‘clearly designed’’ to eliminate asylum 

for those fleeing the ‘‘Northern 

Triangle’’ (El Salvador, Guatemala, and 

Honduras) of Central America. One 

commenter asserted that because the 

international criminal organizations 

function as quasi-governments, there is 

often no reason for an alien to engage in 

expressive behavior that is antithetical 

to the state because ‘‘the state has no 

real authority.’’ 

Response: First, commenters are 

incorrect that this provision prohibits 

certain opinions from being considered 

‘‘political.’’ Instead, as discussed above, 

adjudicators should continue to engage 

in fact-based analysis of the particular 

facts and circumstances of an individual 

applicant’s claim, and the rule expressly 

allows for rare circumstances in which 

the facts of a listed situation could be 

the basis for finding nexus. This 

provision does not remove that factintensive nature from the nexus inquiry. 

Additionally, the Departments 

disagree that this provision evidences a 

discriminatory intent. Again, the rule is 

designed to allow a more expeditious 

adjudication of meritorious asylum 

claims so that applicants do not have to 

wait a lengthy amount of time before 

receiving relief. The Departments’ 

inclusion in this section of the rule of 

a certain category of claims that is 

frequently raised but is generally 

insufficient to establish nexus is not the 

product of a desire to harm or inhibit a 

particular people, nationality, or group. 

As to a commenter’s suggestion that 

aliens may be unlikely to engage in 

expressive behavior that is antithetical 

to the state because the state has no real 

authority due to international criminal 

organizations functioning as quasigovernments, the Departments interpret 

this comment to refer to organizations 

such as drug cartels whom the 

commenter believes function as de facto 

governments in some countries. 

Although the Departments question the 

factual accuracy of the commenter’s 

point and otherwise believe the 

comment is either hypothetical or 


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speculative, especially due to the factintensive, case-by-case nature of asylum 

application adjudications, they 

nevertheless note that the rule does not 

preclude claims based on opposition to 

non-state organizations related to efforts 

by the state to control such 

organizations. 8 CFR 208.1(d), 

1208.1(d). And if an applicant 

establishes that the organization is the 

de facto government or otherwise 

functions in concert with the 

government, then the rule does not 

preclude a claim based on the 

applicant’s opposition to that 

organization or the government. In other 

words, whether the country has ‘‘real 

authority’’ or not, nothing in the rule 

precludes a claim based on opposition 

to non-state organizations in the 

circumstances outlined in the rule, 

though the Departments note that, in 

general, aliens who do not engage in 

expressive behavior regarding such 

organizations or the government are 

unlikely to establish a nexus based on 

political opinion for purposes of an 

asylum application. 

4.4.4. Resistance to Recruitment or 

Coercion by Guerilla, Criminal, Gang, 

Terrorist, or Other Non-State 

Organizations 

Comment: Commenters asserted that 

the inclusion of ‘‘resistance to 

recruitment or coercion by guerilla, 

criminal, gang, terrorist, or other nonstate organizations’’ as a particular 

circumstance that generally does not 

support a nexus finding does not take in 

to account the significant power yielded 

by transnational criminal organizations, 

which often function as de facto 

governments. 

Response: The Departments 

appreciate commenters’ concerns about 

the expansive power of transnational 

criminal organizations. The 

Departments agree with commenters 

that such organizations may pose 

significant dangers. If an alien asserts 

that the government is unable or 

unwilling to control the transnational 

criminal organization, the alien may 

present evidence to establish that. As 

the Departments have previously 

mentioned, the NPRM explicitly 

acknowledges the fact-intensive nature 

of the nexus inquiry and further 

acknowledges that rare circumstances 

defined by the listed situations may 

warrant a favorable nexus 

determination. 

4.4.5. The Targeting of the Applicant for 

Criminal Activity for Financial Gain 

Based on Wealth or Affluence or 

Perceptions of Wealth or Affluence 

Comment: Regarding ‘‘the targeting of 

the applicant for criminal activity for 

financial gain based on wealth or 

affluence or perceptions of wealth or 

affluence,’’ one commenter expressed 

concern about the Departments’ citation 

to Aldana-Ramos v. Holder, 757 F.3d 9, 

18 (1st Cir. 2014), as support. The 

commenter stated that the case’s 

primary holding was ‘‘even if a 

persecutor seeks to harm an asylum 

seeker for financial gain, the BIA must 

engage in a mixed motive analysis to 

determine whether the protected 

characteristic was also a central reason 

for the persecution.’’ The commenter 

alleged that the Departments were 

relying on Aldana-Ramos to 

‘‘implement a blanket rule against 

asylum seekers who may be targeted, in 

part, based on wealth or perceived 

wealth, with no regulatory requirement 

that adjudicators engage in mixed 

motive analysis, as is required under the 

Real ID Act as codified in the INA.’’ 

Response: As discussed above, the 

nexus provisions do not eliminate the 

mixed-motive analysis. The NPRM 

explicitly detailed that it was providing 

guidance on what generally would not 

be considered one of the five protected 

grounds; the NPRM did not state, nor 

was it meant to be construed, that it 

precluded mixed-motive analysis if the 

situation involved one of the five 

protected grounds in addition to a 

situation on the list that was not 

adjudicated to be a protected ground. 

Thus, the NPRM is consistent with 

mixed-motive analysis precedent, and 

an applicant may provide argument, like 

the respondent in Aldana-Ramos, that 

his or her alleged persecutor is 

motivated by a protected ground in 

addition to the non-protected ground 

stated in the exception. 

4.4.6. Criminal Activity 

Comment: Commenters expressed 

concern about the rule’s inclusion of 

‘‘criminal activity’’ as the basis of claims 

that will generally not support a 

favorable adjudication due to the 

breadth of the provision and the 

underlying precedent. Numerous 

commenters opined that ‘‘virtually all 

harm’’ that satisfies the persecution 

requirement could be characterized as 

‘‘criminal activity’’ because ‘‘in virtually 

every country, beatings, rape, and 

threatened murder’’ are criminalized. 

Another commenter realized that this 

broad definition may not be what the 

Departments intended, but without 

providing boundaries on the term, the 

Departments invited ‘‘mass denials of 

claims by those who have bona fide 

asylum claims.’’ A commenter 

expressed concern that the category 

would include aliens who were forced 

or coerced into committing crimes. 

Additionally, a commenter expressed 

reservations about the Departments’ 

reliance on Zetino v. Holder, 622 F.3d 

1007, 1016 (9th Cir. 2010), explaining 

that the ‘‘alien was detained and 

unrepresented before the immigration 

court and the BIA’’ and ‘‘it was not until 

he had filed a pro se petition for review 

that he obtained counsel, and most of 

his appeal centered on procedural 

defects in the proceedings below.’’ 

Response: The inclusion of ‘‘criminal 

activity’’ is not overly expansive. 

Rather, as demonstrated by the 

explanatory case citation provided by 

the Departments, this provision is meant 

to capture cases that are premised on 

generalized criminal activity. See 

Zetino, 622 F.3d at 1016 (discussing the 

‘‘desire to be free from harassment by 

criminals motivated by theft or random 

violence by gang members’’). 

The Departments find that these 

generalized claims are distinct from the 

commenters’ concerns that persecutory 

acts in general may be ‘‘criminal.’’ To 

the extent commenters are nevertheless 

concerned that this provision would 

prohibit a broader swath of claims, the 

Departments again reiterate that these 

categories of cases are not categorical 

bans. Instead, the rule explicitly noted 

that there may be exceptions, and an 

applicant may present argument to the 

adjudicator as to why their individual 

case meets the nexus requirement. For 

example, aliens who were forced and 

coerced into crime may be an exception 

based upon the specific facts of the 

situation. 

Further, the citation to Zetino remains 

an accurate example of the Departments’ 

proposition despite commenters’ 

concerns, which involved procedural 

issues unrelated to the relevant points 

in the case. 

4.4.7. Perceived, Past or Present, Gang 

Affiliation 

Comment: Regarding the inclusion of 

‘‘perceived, past or present, gang 

affiliation’’ as the basis of claims that 

will generally not support a favorable 

adjudication, commenters objected to a 

perceived double standard and the 

implications for aliens, especially 

children. Several commenters argued 

that this provision was arbitrary and 

capricious because it would make 

individuals who were incorrectly 

imputed to be gang members ineligible 

for asylum while allowing incorrect 


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54The Departments note that aliens who are 

victims of criminal activities, including human 

trafficking, may be eligible for other immigration 

benefits beyond asylum based on that victimization. 

INA 101(a)(15)(T),(U), 8 U.S.C. 1101(a)(15)(T),(U). 

55For example, one commenter cited to the 

following cases: De Pena-Paniagua v. Barr, 957 F.3d 

88, 93–94 (1st Cir. 2020); Cece, 733 F.3d 671–72; 

Sarhan v. Holder, 658 F.3d 649, 654–57 (7th Cir. 

2011); Perdomo, 611 F.3d at 662; Agbor v. Gonzales, 

487 F.3d 499, 503 (7th Cir. 2007); Hassan v. 

Gonzales, 484 F.3d 513, 517–18 (8th Cir. 2007); 

Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir. 2006); 

Gao v. Gonzales, 440 F.3d 62, 70 (2d Cir. 2004), 

vac’d on other grounds sub nom. Keisler v. Gao, 552 

U.S. 801 (2007); Niang, 422 F.3d at 1999–1200; 

Mohammed v. Gonzales, 400 F.3d 785, 795–98 (9th 

Cir. 2005); Balogun v. Ashcroft, 374 F.3d 492, 499 

(7th Cir. 2004); Abay v. Ashcroft, 368 F.3d 634, 

639–42 (6th Cir. 2004); Yadegar-Sargis v. INS, 297 

F.3d 596, 603–04 (7th Cir. 2002); Fatin, 12 F.3d at 

1241; In re Kasinga, 21 I&N Dec. 357, 375 (BIA 

1996); cf., e.g., Kadri v. Mukasey, 543 F.3d 16, 21 

(1st Cir. 2008) (‘‘Sexual orientation can serve as the 

foundation for a claim of persecution, as it is the 

basis for inclusion in a particular social group.’’); 

Karouni v. Gonzales, 399 F.3d at 1171–72 (reaching 

the same conclusion). 

imputation of other characteristics, for 

example, homosexuality, to be grounds 

for asylum. Another commenter noted 

that this change would twice victimize 

aliens because imputed gang 

membership occurs at no fault of their 

own. One commenter also expressed 

concern that children who are forced 

into prostitution or drug smuggling 

would lose their right to asylum. 

Response: The Departments 

acknowledge commenters’ concerns and 

have sympathy for aliens who 

incorrectly have gang membership 

imputed onto them by no fault of their 

own. These concerns, however, do not 

result in a viable asylum claim. ‘‘[T]he 

asylum statute does not provide redress 

for every misfortune.’’ Matter of A–B–, 

27 I&N Dec. at 318. 

Regarding commenters’ concerns that 

the rule provides an inconsistent 

approach to immutability, commenters 

compare dissimilar claims. While gang 

affiliation and homosexuality are traits 

that may both be imputed, accurately or 

not, to an applicant, the underlying 

ground of the latter may be a protected 

ground while the former is not. Thus, 

the Departments’ approach toward 

immutability is consistently based on 

the protected nature of the underlying 

ground. 

Commenters are incorrect that this 

provision would cause children, such as 

those forced into prostitution or drug 

smuggling by criminal gangs, to lose 

their eligibility for asylum.54 Indeed, as 

noted in the preamble, claims premised 

on these sorts of gang affiliations had 

already been found in case law to not 

support a finding of asylum eligibility 

prior to the proposed rule’s publication. 

See, e.g., Reyes, 842 F.3d at 1137–38 

(holding that ‘‘former members of the 

Mara 18 gang in El Salvador who have 

renounced their membership’’ was not a 

cognizable particular social group); 

Matter of A–B–, 27 I&N Dec. at 320 

(‘‘Generally, claims by aliens pertaining 

to . . . gang violence perpetrated by 

non-governmental actors will not 

qualify for asylum.’’). Because these 

gang-based claims are not related to a 

protected ground, it reasonably follows 

that they would further not succeed on 

nexus because the harms would not be 

on account of a protected ground. 

Nevertheless, the Departments again 

reiterate that, as discussed above, the 

rule explicitly provides for rare 

exceptions; children who were forced 

into prostitution or drug smuggling may 

present argument that their case 

sufficiently meets the nexus 

requirements based upon the specific 

facts in their application. 

4.4.8. Gender 

Comment: Some commenters 

expressed strong objections to the 

NPRM’s inclusion of gender in the list 

of circumstances that would not 

ordinarily result in a favorable 

adjudication, including allegations that 

the provision is arbitrary and capricious 

as well as ‘‘cruel and contrary to the 

purposes underlying Congress’ desire to 

provide protection to refugees.’’ Some 

commenters also argued that the 

amendments took a new and capricious 

position and would result in substantial 

and irreparable harm to aliens. One 

commenter opined that this provision 

was really about a desire to reduce the 

amount of aliens who could seek 

asylum. 

Commenters asserted that gender has 

been one of the bedrock bases for 

asylum claims and that, as a result, the 

rule overturns decades of contrary legal 

precedent. In support, commenters cited 

to multiple cases ‘‘in which immigration 

judges, the BIA, and the courts of 

appeals have held that gender-based 

persecution provides a valid ground for 

asylum.’’ 55 One commenter claimed 

that the proposed rule ‘‘runs counter to 

every case to have considered it.’’ 

According to commenters, this includes 

the precedent cited in support of the 

rule, Niang v. Gonzales, 422 F.3d 1187 

(10th Cir. 2005), which they assert in 

fact holds that gender can provide an 

adequate basis for establishing 

membership in a particular social group. 

Id. at 1199–1200. Some commenters 

asserted that the Departments should 

have included a larger quotation in the 

NPRM preamble, including: 

the focus with respect to such claims should 

be not on whether either gender constitutes 

a social group (which both certainly do) but 

on whether the members of that group are 

sufficiently likely to be persecuted that one 

could say that they are persecuted ‘‘on 

account of’’ their membership. 8 U.S.C. 

1101(a)(42)(A). It may well be that only 

certain women—say, those who protest 

inequities—suffer harm severe enough to be 

considered persecution. The issue then 

becomes whether the protesting women 

constitute a social group. 

Niang, 422 F.3d at 1199. One 

commenter expressed a belief that the 

Departments’ choice of language to cite 

in Niang was designed to deceive the 

public and to reduce the notice and 

comment burden. 

Commenters asserted that the 

inclusion of gender conflicts with the 

international obligations and 

international norms of the United 

States. For example, a commenter noted 

that the UNHCR, which oversees the 

Refugee Convention, has confirmed that 

people fleeing persecution based on 

gender, gender-identity, and sexual 

orientation do qualify for asylum under 

the Convention’s definition of a refugee. 

In regards to numerosity, the commenter 

pointed to UNHCR guidance which 

explained, ‘‘[t]he size of the group has 

sometimes been used as a basis for 

refusing to recognize ‘women’ generally 

as a particular social group. This 

argument has no basis in fact or reason, 

as the other grounds are not bound by 

this question of size.’’ Commenters 

stated that because the inclusion of 

gender would exclude meritorious 

claims for relief, the rule against genderbased asylum claims would violate the 

government’s duty of non-refoulement 

as codified in statutory withholding of 

removal at section 241(b)(3)(A), 8 U.S.C. 

1231(b)(3)(A). Commenters stated that 

the rule against gender-based asylum 

would aid and abet violations of the law 

of nations in contravention of the Alien 

Tort Claims Act (‘‘ATCA’’) because 

there is a specific and universal 

obligation to prevent domestic violence 

and other violence against women in 

international law. 

One commenter argued that it is 

improper to disfavor gender-based 

claims in the nexus section. In support 

of that position, the commenter asserted 

that to support a general bar on genderbased claims within the nexus analysis, 

the agencies would need to show that 

gender is not generally a central reason 

for persecution throughout the world, 

and further, the proposed regulation 

changes do nothing to establish any 

empirical claims about causation. 

Commenters also expressed concern 

that the amendment would prevent 

adjudicators from evaluating claims on 

a case-by-case basis. 


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Another commenter noted that levels 

of gender-based violence have risen 

during the coronavirus pandemic and 

stated that, as a result, it is not 

appropriate for the Departments to take 

action to restrict asylum claims based 

on gender. 

A commenter requested that the 

Departments not eliminate one of the 

few protections for gender-based 

violence. 

Another commenter noted the 

Department of State’s work to reduce 

and eliminate gender-based violence, 

including emphasizing in the refugee 

protection context that the 

‘‘empowerment and protection of 

women and girls has been a central part 

of U.S. foreign policy and national 

security’’ and that ‘‘gender-based 

violence[ ] is a critical issue’’ that is 

‘‘intricately linked to’’ the Department’s 

strategic goals. 

Finally, a commenter made numerous 

unsupported claims, including that the 

inclusion of gender violates the 

constitutional guarantee of equal 

protection; that the inclusion of gender 

in the laundry list is contrary to the 

evidence; and that the NPRM’s failure to 

include a rationale for listing gender as 

failing the nexus requirement is, 

without more, sufficient to render that 

inclusion arbitrary. 

Response: Regarding commenters’ 

concerns that gender and ‘‘private 

criminal acts’’ would no longer be 

recognized as a viable claim, the 

Departments again note that the rule, 

after listing the eight situations that will 

generally not result in favorable 

adjudication, also notes that in rare 

circumstances, given the fact-specific 

nature of such determinations, such 

facts could be the basis for finding 

nexus. Although the nexus requirement 

for an asylum claim requires scrutiny 

when an asserted particular social group 

encompasses ‘‘millions’’ of individuals, 

Matter of A–C–A–A–, 28 I&N Dec. 92, 

the rule does not categorically bar all 

gender-based asylum claims contrary to 

the assertions of commenters. In other 

words, the rule does not completely 

prohibit applications with a nexus 

related to issues of gender from being 

granted, and the inclusion of gender in 

the list of circumstances that generally 

does not constitute harm on account of 

a protected ground does not conflict 

with the requirement that adjudicators 

consider each application on a case-bycase basis. Further, a purpose for the 

amendments was to allow for increased 

clarity and more uniform adjudication 

than the prior scheme which was 

shaped through case law. Thus, the 

Departments do not believe that the 

inclusion of gender in the listed 

situations generally resulting in 

unfavorable adjudication is cruel, novel, 

capricious, or contrary to congressional 

intent. 

The Departments acknowledge 

commenters’ discussion of a wide range 

of case law involving issues 

surrounding gender and applications for 

asylum or for statutory withholding of 

removal. To the extent that the 

Departments’ inclusion of ‘‘gender’’ as 

an example of a nexus basis that 

generally will not support a favorable 

adjudication conflicts with the provided 

case law, the Departments reiterate the 

discussion in Section II.C.4.3 of this 

preamble regarding Brand X. The 

Departments invoke their authority to 

interpret the ambiguities in the Act, 

including what constitutes harm on 

account of a protected ground, outside 

the bounds of any prior judicial 

constructions. See Brand X, 545 U.S. at 

982 (explaining that agencies are not 

bound by prior judicial interpretations 

of ambiguous statutory interpretations 

because there is a presumption that 

Congress left statutory ambiguity for the 

agencies to resolve). 

Regarding commenters’ specific 

objections to the Departments’ use of 

Niang, the Departments agree that the 

section following the quote in the 

NPRM stated that the issue surrounding 

gender is the nexus determination. This 

does not undermine, but enhances, the 

inclusion of gender in the listed 

circumstances that, without more, will 

not generally result in favorable 

adjudication based on nexus. Niang 

goes on to place more limits on a 

specific gender-based particular social 

group: ‘‘It may well be that only certain 

women—say, those who protest 

inequities—suffer harm severe enough 

to be considered persecution. The issue 

then becomes whether the protesting 

women constitute a social group.’’ 

Niang, 422 F.3d at 1200. This tracks 

with the rule: Harm on account of 

gender alone will generally result in 

unfavorable adjudication. 

Another commenter pointed to the 

UNHCR’s approach toward gender and 

numerosity. While the Departments 

appreciate the comment, they note that 

they are not bound by the UNHCR, and 

commenters’ reliance on guidance from 

UNHCR is misplaced. UNHCR’s 

interpretations of or recommendations 

regarding the Refugee Convention and 

Protocol, such as set forth in the 

UNHCR Handbook, are ‘‘not binding on 

the Attorney General, the BIA, or United 

States courts.’’ INS v. Aguirre-Aguirre, 

526 U.S. at 427. ‘‘Indeed, the Handbook 

itself disclaims such force, explaining 

that ‘the determination of refugee status 

under the 1951 Convention and the 

1967 Protocol . . . is incumbent upon 

the Contracting State in whose territory 

the refugee finds himself.’ ’’ Id. at 427– 

28. Further, to the extent such guidance 

‘‘may be a useful interpretative aid,’’ id. 

at 427, it would apply only to statutory 

withholding of removal, which is the 

protection that implements Article 33 of 

the Convention, cf. R–S–C– v. Sessions, 

869 F.3d 1176, 1188, n.11 (10th Cir. 

2017) (explaining that ‘‘the Refugee 

Convention’s non-refoulement 

principle—which prohibits the 

deportation of aliens to countries where 

the alien will experience persecution— 

is given full effect by the Attorney 

General’s withholding-only rule’’). In 

the withholding of removal context, the 

Departments disagree with commenters 

that the rule will violate the United 

States’ non-refoulement obligations 

because such claims are not, without 

more, meritorious. 

In addition, the Departments note that 

commenters asserted that violating a socalled ‘‘specific and universal obligation 

to prevent domestic violence and other 

violence against women’’ was a viable 

claim under the ATCA. The 

Departments further note, however, that 

the ‘‘aiding and abetting’’ violations of 

the law of nations is not currently 

recognized as within the scope of the 

ATCA. Doe v. Nestle, S.A., 929 F.3d 623 

(9th Cir. 2019), cert. granted sub nom. 

Nestle USA, Inc. v. Doe I, No. 19–416, 

2020 WL 3578678 (July 2, 2020), and 

cert. granted sub nom. Cargill, Inc. v. 

Doe I, No. 19–453, 2020 WL 3578679 

(July 2, 2020). Moreover, the 

commenters failed to demonstrate that 

such a claim would ‘‘rest on a norm of 

international character accepted by the 

civilized world and defined with a 

specificity comparable to the features of 

the 18th-century paradigms,’’ such as 

violation of safe conducts, infringement 

of the rights of ambassadors, or piracy, 

that the Court has recognized. Sosa v. 

Alvarez-Machain, 542 U.S. 692, 724–25 

(2004). 

Much of the commenters’ concern 

regarding the inclusion of gender arises 

from a misunderstanding of the 

complexity of particular social groups 

and the role of mixed-motive analysis. 

The Departments explain that the 

inclusion of gender indicates that, 

generally, a claim based on gender, 

without additional evidence, will not be 

favorably adjudicated in regards to the 

nexus claim. However, it does not read, 

nor should it be interpreted to mean, 

that the inclusion of gender in the claim 

is fatal. Rather, a claim based on gender 

alone will generally be insufficient. As 

to the role of mixed motive analysis, the 

text of the NPRM acknowledges mixed 

motive claims by quoting the REAL ID 


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56The Departments note that gender was not 

included among other broad categories, such as race 

or nationality, as a basis for refugee status in either 

the 1951 Refugee Convention or the 1980 Refugee 

Act. Further, no precedential decision has 

unequivocally recognized gender, standing alone, as 

a basis for asylum. See, e.g., Fisher v. INS, 79 F.3d 

955, 963 (9th Cir. 1996) (en banc) (‘‘Persecution on 

account of sex is not included as a category 

allowing relief under section 101(a)(42)(A) of the 

Act.’’). The Departments further note that gender 

has frequently been analyzed by circuit courts in 

the context of the definition of a particular social 

group, rather than under the rubric of nexus, though 

the courts themselves are in disagreement over the 

issue. See Matter of A–C–A–A–, 28 I&N at 91 

(‘‘Although I do not decide the matter in this case, 

I note that there has been disagreement among the 

courts of appeals about whether gender-based 

groups may constitute a particular social group 

within the meaning of the INA.’’). At least three 

circuits have concluded that gender is too broad or 

sweeping to constitute a particular social group 

itself. See Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 

1991) (‘‘Like the traits which distinguish the other 

four enumerated categories-race, religion, 

nationality and political opinion-the attributes of a 

particular social group must be recognizable and 

discrete. Possession of broadly-based characteristics 

such as youth and gender will not by itself endow 

individuals with membership in a particular 

group.’’), Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 

1994) (‘‘We believe this category is overbroad, 

because no factfinder could reasonably conclude 

that all Iranian women had a well-founded fear of 

persecution based solely on their gender.’’); Da 

Silva v. U.S. Att’y Gen., 459 F. App’x 838, 841 (11th 

Cir. 2012) (‘‘The BIA determined that ‘women’ was 

too broad to constitute a particular social group. We 

agree that such a group is too numerous and 

broadly defined to be considered a ‘social group’ 

under the INA.’’). Another circuit has quoted the 

language in Gomez approvingly. Lukwago v. 

Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003). Still 

another has rejected ‘‘generalized sweeping 

classifications for asylum,’’ while noting that the 

Board ‘‘has never held that an entire gender can 

constitute a social group under the INA.’’ Rreshpja 

v. Gonzales, 420 F.3d 551, 555 (6th Cir. 2005). One 

circuit has intimated that gender alone could suffice 

to constitute a particular social group, though it 

remanded the case to the Board to address that 

issue in the first instance. Perdomo, 611 F.3d at 

667; but see Rreshpja, 420 F.3d at 555 (‘‘We do not 

necessarily agree with the Ninth Circuit’s 

determination that virtually all of the women in 

Somalia are entitled to asylum in the United 

States.’’). Further, although gender is generally 

regarded as an immutable characteristic, see e.g., 

Kauzonaite v. Holder, 351 F. App’x 529, 531 (2d 

Cir. 2009) (‘‘However, although gender is an 

immutable characteristic. . . gender alone is 

insufficient to identify a particular social group.’’), 

modern notions of gender fluidity may raise 

questions about that assumption in individual 

cases. Cf, e.g., Bostock v. Clayton, 140 S.Ct. 1731, 

1779 & n.45 (2020) (‘‘while the Court does not 

define what it means by a transgender person, the 

term may apply to individuals who are ‘gender 

fluid,’ that is, individuals whose gender identity is 

mixed or changes over time.’’ (Alito, J. dissenting)). 

Further, because every alien has a gender of some 

classification, gender may not carry sufficient 

particularity to warrant classification as a particular 

social group. Cf. Matter of L–E–A-, 27 I&N Dec. at 

593 (‘‘Further, as almost every alien is a member of 

a family of some kind, categorically recognizing 

families as particular social groups would render 

virtually every alien a member of a particular social 

group. There is no evidence that Congress intended 

the term ‘particular social group’ to cast so wide a 

net.’’). In short, although the rule considers gender 

under the category of nexus, it may also be 

appropriately considered under the definition of 

‘‘particular social group’’ as well, as the lists under 

both definitions are nonexhaustive. 

Act of 2005 that defined the nexus 

element as requiring that one of the five 

protected grounds be ‘‘at least one 

central reason for persecuting the 

applicant.’’ 85 FR at 36281. Further, the 

NPRM explicitly detailed that it was 

providing guidance on what would not 

be considered one of the five protected 

grounds; the NPRM did not state, nor 

was it meant to be construed, that it 

precluded mixed motive analysis if the 

situation involved one of the five 

protected grounds in addition to a 

situation on the list that was not 

adjudicated to be a protected ground.56

The Departments disagree with 

commenters that the rule must show 

that gender is not the cause of harm 

around the world in order to include 

gender in the list of circumstances that 

generally does not constitute harm on 

account of a protected ground. Indeed, 

these comments miss the purpose of this 

discussion in the rule. The Departments 

do not make any statement about the 

question or prevalence of gender-based 

harm in other countries, but instead the 

point is that such harm is not on 

account of a protected ground and 

accordingly generally fails to support a 

valid claim to asylum or to statutory 

withholding of removal. As noted 

elsewhere, asylum is not designed to 

provide relief from all manners of harm 

that may befall a person. See, e.g., 

Gjetani, 968 F.3d at 397–98. 

The Departments further disagree 

with commenters’ statements that the 

inclusion of gender violates the 

constitutional guarantee of equal 

protection. The rule does not provide 

any benefits or discriminate on the basis 

of one gender over another. 

Other commenters noted the severe 

problem of gender-based violence, 

especially in the global coronavirus 

pandemic, and the extensive work the 

Department of State is undertaking to 

reduce and eliminate gender-based 

violence. The Departments agree with 

commenters regarding the severity of 

the problem and the good work being 

done across the Federal government to 

address the problem. As previously 

mentioned, however, the narrow asylum 

statutes are not drafted to provide 

redress for every problem. The 

Departments must act within the legal 

framework set out by Congress. 

4.5. Evidence Based on Stereotypes 

Comment: Commenters expressed 

numerous reservations and 

disagreements with the Departments’ 

regulation regarding the admissibility of 

evidence based on or promoting 

stereotypes to support the basis of an 

applicant’s fear of harm. 8 CFR 208.1(g), 

1208.1(g). 

Some commenters alleged that the 

NPRM created a vague new evidentiary 

bar. Other commenters opined that the 

provision excludes necessary and 

critical evidence; some alleged that the 

NPRM was ‘‘part of [the Departments’] 

efforts to make it harder for asylum 

seekers to present their cases,’’ 

including claims based on particular 

social groups. Commenters also worried 

that the changes would unfairly 

advantage the government and violate 

due process. Other commenters 

expressed concern that the amendments 

would place a larger burden on 

adjudicators as they would be presented 

with difficult and time-consuming 

factual and legal issues. Regarding wellfounded fear, a commenter alleged that 

the distinction between widespread, 

systemic laws or policies—evidence 

used to support a well-founded fear of 

persecution—and cultural stereotypes is 

so narrow that it will result in a 

‘‘quagmire of confusion’’ and ‘‘countless 

hours and resources of litigation.’’ 

Other commenters claimed that 

cultural stereotypes were necessary for 

well-founded fear of persecution claims 

and were utilized in country condition 

reports. For example, a commenter 

argued that the Department of State’s 

country reports contain cultural 

stereotypes. As evidence of this claim, 

the commenter included three quotes 

from the Human Rights Report for 

Guatemala: ‘‘[a] culture of indifference 

to detainee rights put the welfare of 

detainees at risk’’; ‘‘[t]raditional and 

cultural practices, in addition to 

discrimination and institutional bias, 

however, limited the political 

participation of women and members of 

indigenous groups’’; and ‘‘[i]ndigenous 

communities were underrepresented in 

national politics and remained largely 

outside the political, economic, social, 

and cultural mainstream.’’ Further, the 

commenter asserted that this was 

evidence that ‘‘it would be impossible to 

discuss conditions in any country 

without discussing its culture and 

without engaging in at least some 

stereotyping.’’ The commenter 

extrapolated this onto several other 

elements of an asylum claim, including 

a subjectively genuine and objectively 

reasonable fear of harm and a socially 

distinct, particular social group. 

A commenter opined that this 

provision was evidence that the 

Departments ‘‘fail[ed] to engage in 

reasoned decision making’’; the 

commenter continued by claiming that 

the NPRM ‘‘raises doubts about whether 

the agency appreciates the scope of its 

discretion or exercised that discretion in 


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57The Departments respond to allegations of 

failure to engage in reasoned decision making 

below in section II.C.6.2. 

a reasonable manner.’’ Dep’t of 

Homeland Sec. v. Regents of the Univ. 

of Cal., 140 S. Ct. 1891, 1905 (2020) 

(quoting Michigan v. EPA, 576 U.S. 743, 

750 (2015) (internal quotation marks 

omitted)).57 Finally, commenters 

asserted that the provision’s purported 

application only to aliens and not to 

DHS represented an unfair asymmetry 

because there was no prohibition of 

DHS filing evidence promoting 

stereotypes in opposition to asylum 

applications. 

Response: The Departments reject the 

characterization of the rule regarding 

admissibility of evidence based on 

stereotypes as a new evidentiary bar. 

Numerous courts, and the BIA, have 

made clear that the Federal rules of 

evidence do not apply in immigration 

proceedings, but the evidence must be 

probative and its admission may not be 

fundamentally unfair. See, e.g., 

Rosendo-Ramirez v. INS, 32 F.3d 1085, 

1088 (7th Cir. 1994); Baliza v. INS, 709 

F.2d 1231, 1233 (9th Cir. 1983); 

Tashnizi v. INS, 585 F.2d 781, 782–83 

(5th Cir. 1978); Trias-Hernandez v. INS, 

528 F.2d 366, 369 (9th Cir. 1975); 

Marlowe v. INS, 457 F.2d 1314, 1315 

(9th Cir. 1972); Matter of Toro, 17 I&N 

Dec. 340, 343 (BIA 1980); Matter of Lam, 

14 I&N Dec. 168, 170 (BIA 1972). As the 

rule makes clear, ‘‘conclusory assertions 

of countrywide negative cultural 

stereotypes’’ are not probative of any of 

the eligibility grounds for asylum. 

Matter of A–B–, 27 I&N Dec. at 336 n.9. 

For example, in Matter of A–B–, the 

Attorney General determined that the 

evidence submitted in Matter of A–R–C– 

G–, 26 I&N Dec. 388 (BIA 2014), ‘‘an 

unsourced partial quotation from a news 

article eight years earlier,’’ was not 

appropriate evidence to support the 

‘‘broad charge’’ that Guatemala had a 

‘‘ ‘culture of machismo and family 

violence.’ ’’ Matter of A–B–, 27 I&N Dec. 

at 336 n.9 (quoting Matter of A–R–C–G– 

, 26 I&N Dec. at 394). Similarly, the rule 

establishes that such unsupported 

stereotypes are not admissible as 

probative evidence. 85 FR at 36282 

(‘‘pernicious cultural stereotypes have 

no place in the adjudication of 

applications for asylum and statutory 

withholding of removal, regardless of 

the basis of the claim’’); see also Matter 

of A–C–A–A–, 28 I&N Dec. at 91 n.4 

(‘‘Furthermore, the Board should 

remember on remand that ‘conclusory 

assertions of countrywide negative 

cultural stereotypes . . . neither 

contribute to an analysis of the 

particularity requirement nor constitute 

appropriate evidence to support such 

asylum determinations.’ ’’ (quoting 

Matter of A–B–, 27 I&N Dec. at 336 n.9)). 

Reliance on stereotypes about a 

country, race, religion, nationality, or 

gender is inconsistent with the 

individualized consideration asylum 

claims require. Further, by definition, 

stereotypes are not subject to 

verification and have little intrinsic 

probative value; to the contrary, they 

frequently undermine credibility 

considerations that are important to an 

asylum claim. Cf. Thomas v. Eastman 

Kodak Co., 183 F.3d 38, 61 (1st Cir. 

1999) (‘‘The concept of ‘stereotyping’ 

includes not only simple beliefs such as 

‘women are not aggressive’ but also a 

host of more subtle cognitive 

phenomena which can skew 

perceptions and judgments.’’). Instead, 

they reflect ‘‘a frame of mind resulting 

from irrational or uncritical analysis.’’ 

Nguyen v. INS, 533 U.S. 53, 68 (2001). 

Thus, even ‘‘benevolent’’ stereotypes are 

generally disfavored in law. Cf. 

International Union, United Auto., 

Aerospace & Agric. Implement Workers 

of Am. v. Johnson Controls, 499 U.S. 

187, 199–200 (1991) (stating, in rejecting 

employer policy related to female 

fertility due to potential exposure to 

fetal hazards, that the ‘‘beneficence of 

an employer’s purpose does not 

undermine the conclusion that an 

explicit gender-based policy is sex 

discrimination’’). In short, stereotypes 

about another individual or country 

have little place in American law as 

evidence supporting any type of claim. 

See United States v. Bahena-Cardenas, 

411 F.3d 1067, 1078 (9th Cir. 2005) 

(‘‘Refusing to allow expert testimony 

that would encourage or require jurors 

to rely on cultural stereotypes is not an 

abuse of discretion.’’). 

To be sure, asylum claims are 

generally rooted in hearsay, frequently 

cannot be confronted or rebutted, and 

are typically uncorroborated except by 

other hearsay evidence. See, e.g., Angov, 

788 F.3d at 901 (‘‘ ‘The specific facts 

supporting a petitioner’s asylum 

claim—when, where, why and by whom 

he was allegedly persecuted—are 

peculiarly within the petitioner’s grasp. 

By definition, they will have happened 

at some time in the past—often many 

years ago—in a foreign country. In order 

for the [DHS] to present evidence 

‘‘refuting or in any way contradicting’’ 

petitioner’s testimony, it would have to 

conduct a costly and often fruitless 

investigation abroad, trying to prove a 

negative—that the incidents petitioner 

alleges did not happen.’ ’’ (quoting 

Abovian v. INS, 257 F.3d 971, 976 (9th 

Cir. 2001) (Kozinski, J., dissenting from 

denial of pet’n for reh’g en banc))); 

Mitondo v. Mukasey, 523 F.3d 784, 788 

(7th Cir. 2008) (‘‘Most claims of 

persecution can be neither confirmed 

nor refuted by documentary evidence. 

Even when it is certain that a particular 

incident occurred, there may be doubt 

about whether a given alien was among 

the victims. Then the alien’s oral 

narration must stand or fall on its own 

terms. Yet many aliens, who want to 

remain in the United States for 

economic or social reasons unrelated to 

persecution, try to deceive immigration 

officials.’’). Thus, adjudicators are 

certainly seasoned in assessing evidence 

that is not subject to verification and has 

minimal probative value in the context 

of asylum claims. 

Nevertheless, the Departments believe 

that the harms associated with the use 

of evidence rooted in stereotypes far 

outweigh what little, if any, probative 

value such evidence may have in an 

asylum claim. Accordingly, the rule 

does not represent a wholly new 

evidentiary bar per se, but rather a 

codification of the point that such 

stereotypes will not meet the existing 

admissibility standards because they are 

inherently not probative. Contrary to 

commenters’ suggestions, such evidence 

should not be necessary to an asylum 

application. Even if such stereotypes 

were admitted into evidence, they 

would be given little to no weight for 

the reasons stated above. Further, to the 

extent that an applicant’s claim is 

supported only by the applicant’s 

personal stereotypes about a country or 

the alleged persecutor, that claim is 

likely unmeritorious in the first 

instance. 

Further, the Departments disagree 

with commenter assertions that the term 

‘‘cultural stereotypes’’ is vague. As 

alluded to above, the concept of 

stereotyping is well-established in 

American jurisprudence, and legal 

questions regarding stereotypes, 

especially stereotypes about foreign 

countries, arise in a variety of settings. 

See, e.g., United States v. Ramirez, 383 

F.Supp.2d 1179, 1180 (D. Neb. 2005) 

(collecting cases excluding testimony 

based on cultural stereotypes of 

different foreign countries); United 

States v. Velasquez, No. CR 08–0730 

WHA, 2011 WL 5573243, at *3 (N.D. 

Cal. 2011) (not permitting a ‘‘cultural 

defense’’ expert witness to testify ‘‘as 

his opinions are based on cultural 

stereotypes and generalizations that 

have no probative value in this case’’ 

and permitting a ‘‘mental condition 

expert’’ to testify on the condition that 

he ‘‘refrain from offering testimony 

based on stereotypes and/or 

generalizations of Guatemalan, Mayan, 

Mam or any other culture’’); see also 


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Bahena-Cardenas, 411 F.3d at 1078 

(‘‘Refusing to allow expert testimony 

that would encourage or require jurors 

to rely on cultural stereotypes is not an 

abuse of discretion.’’). Moreover, 

existing Department policies forbid the 

use of generalized stereotypes in law 

enforcement activities. See U.S. Dep’t of 

Justice, Guidance for Federal Law 

Enforcement Agencies Regarding the 

Use of Race, Ethnicity, Gender, National 

Origin, Religion, Sexual Orientation, or 

Gender Identity 4 (2014) (‘‘Reliance 

upon generalized stereotypes involving 

the listed characteristics is absolutely 

forbidden.’’), https://www.justice.gov/ 

sites/default/files/ag/pages/ 

attachments/2014/12/08/use-of-racepolicy.pdf. Thus, the Departments do 

not believe that adjudicators will have 

difficulty understanding the rule’s 

reference to ‘‘cultural stereotypes.’’ 

The Departments also disagree with 

commenter assertions that it will be 

difficult to distinguish between 

widespread, systemic laws or policies— 

a form of accepted evidence to establish 

a well-founded fear—and cultural 

stereotypes. The Departments are 

seeking to bar admissibility of nonprobative evidence of the kind 

described in Matter of A–B–, broad 

cultural stereotypes that have no place 

in an impartial adjudication. Evidence 

of systemic laws or policies is more 

probative and concrete than 

unsupported assertions of reductive 

cultural stereotypes. For example, bald 

statements that a country, as a whole, 

has a particular cultural trait that causes 

certain members of that country to 

engage in persecution is evidence that 

has no place in an adjudication. In 

contrast, evidence that a country’s 

leader has instituted a program to carry 

out systematic persecution against 

certain groups would be highly 

probative evidence. General assertions 

of cultural stereotypes are inherently 

conclusory, reductive, and unhelpful to 

the adjudicator or trier of fact—in 

addition to being harmful in and of 

themselves—and should not be 

admissible. 

In support of the claim that cultural 

stereotypes are necessary for many 

asylum claims, one commenter 

presented three excerpts from a 

Department of State Human Rights 

Report on Guatemala. The Departments 

appreciate the commenter’s examples, 

but they do not reflect assertions of 

pernicious cultural stereotypes 

described in this rulemaking. 

The first alleged stereotype was that 

‘‘[a] culture of indifference to detainee 

rights put the welfare of detainees at 

risk.’’ However, the report goes on to 

state: ‘‘On August 22, Ronald Estuardo 

Fuentes Cabrera was held in 

confinement while awaiting trial for 

personal injury charges after a car 

accident. Fuentes died from internal 

thoracic injury hours before his 

scheduled trial and without having 

received a medical exam, while his wife 

and the passenger of the other vehicle 

were taken for medical care.’’ U.S. Dep’t 

of State, 2019 Country Reports on 

Human Rights Practices: Guatemala 6 

(2019), https://www.state.gov/reports/ 

2019-country-reports-on-human-rightspractices/guatemala. Further, the report 

nowhere alleges that Guatemalans are 

indifferent to detainee rights because of 

some cultural trait peculiar to 

Guatemalans. Thus, not only do these 

statements not promote any particular 

cultural stereotype about Guatemalans 

based on race, religion, nationality, 

gender or similar characteristic, but they 

are supported by some facts. In short, 

this statement reflects verifiable facts, 

not a stereotype. 

The second alleged stereotype was 

that ‘‘[t]raditional and cultural practices, 

in addition to discrimination and 

institutional bias, . . . limited the 

political participation of women and 

members of indigenous groups.’’ Once 

again, the report went on to detail the 

low numbers of women and indigenous 

people in the government to support its 

conclusion. Id. at 12–13. Elsewhere in 

the report, the State Department 

included specific information about 

sexual harassment: ‘‘No single law, 

including laws against sexual violence, 

deals directly with sexual harassment, 

although several laws refer to it. Human 

rights organizations reported sexual 

harassment was widespread.’’ Id. at 17. 

Similarly, the report contained specific 

information about discrimination: 

‘‘Although the law establishes the 

principle of gender equality and 

criminalizes discrimination, women, 

and particularly indigenous women, 

faced discrimination and were less 

likely to hold management positions.’’ 

Id. The Departments do not see how this 

broad statement suggests a stereotype 

about an alleged persecutor for purposes 

of supporting an asylum claim such that 

it would fall within the ambit of the 

rule. Moreover, it is, again, based on 

evidence rather than a stereotype. 

The final alleged stereotype contained 

in the report was that ‘‘[i]ndigenous 

communities were underrepresented in 

national politics and remained largely 

outside the political, economic, social, 

and cultural mainstream.’’ This quote 

was also followed by supporting 

statements, including details regarding 

indigenous leaders who were killed. Id. 

at 20–21. Again, the Departments do not 

see how this broad statement suggests a 

stereotype such that it would fall under 

the rule. Further, it does not suggest that 

indigenous individuals possess some 

inherent trait—as opposed to larger 

structural factors in the country—that 

causes them to be underrepresented in 

national politics. Thus, it is also based 

on evidence rather than a stereotype. 

Other commenters expressed concern 

that this portion of the rule would place 

a larger burden on adjudicators. The 

Departments appreciate both the 

comment and the underlying concern. 

But, as noted above, adjudicators at both 

Departments are experienced in 

assessing evidence of little-to-no 

probative value, and immigration judges 

at DOJ are already experienced at ruling 

on evidentiary objections as a matter of 

course in immigration proceedings. 

Thus, the Departments do not believe 

that this portion of the rule will increase 

any burden beyond what adjudicators 

already face. The definition of ‘‘cultural 

stereotypes’’ is straightforward; the 

Departments have confidence that 

adjudicators will be able to apply such 

a definition in a timely and fair manner. 

Nevertheless, in response to some of the 

apparent confusion by some 

commenters, the Departments have 

modified the language in the final rule 

to make it clearer. The change does not 

reflect a substantive modification from 

what was intended in the NPRM. 

The Departments reject the 

commenters’ assertions that this rule 

was passed with bad intent. One aim of 

this rule is to allow a more expeditious 

adjudication of meritorious asylum 

claims so that applicants do not have to 

wait a lengthy amount of time before 

receiving relief. The Departments agree 

with the commenter who stated that 

many asylum applications require at 

least some discussion of the culture of 

the country to which the applicant fears 

return. However, the Departments 

disagree with the commenter’s 

assertions that some level of 

stereotyping would be helpful to the 

applicant’s claim. Stereotypes are 

inherently unsupported generalizations. 

Such conclusory statements are not 

probative and can indeed be harmful, as 

discussed above. 

Further, the Departments disagree 

with the commenter who asserted that 

the rule would disadvantage the 

applicant and violate due process. As 

discussed above, an applicant’s inability 

to submit nonprobative evidence neither 

disadvantages the applicant nor violates 

due process. 

Finally, in response to commenters’ 

concerns about the perceived 

asymmetry of the rule, the Departments 

note that DHS is already bound by 

policy to treat stakeholders, including 


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58The Departments note that consideration of 

internal relocation in the context of an application 

for withholding of removal under the CAT 

regulations is different than the consideration of 

internal relocation in the context of an application 

for asylum and statutory withholding of removal. 

Compare, e.g., 8 CFR 1208.13(b)(3), 1208.16(b)(3) 

(assessing the reasonableness of internal relocation), 

with 1208.16(c)(3)(ii) (assessing internal relocation 

without reference to reasonableness). 

aliens, in a non-discriminatory manner. 

DHS therefore may not rely on 

stereotype evidence to oppose an 

asylum application. See U.S. 

Immigration and Customs Enforcement, 

Office of Diversity and Civil Rights, 

https://www.ice.gov/leadership/dcr (‘‘It 

is U.S. Immigration and Customs 

Enforcement’s (ICE) policy to ensure 

that employees, applicants for 

employment and all stake holders are 

treated in a non-discriminatory manner 

in compliance with established laws, 

regulations and Executive Orders.’’); cf. 

Doe v. Att’y Gen., 956 F.3d 135, 155 

n.10 (3d Cir. 2020) (‘‘The applicant’s 

specific sexual practices are not relevant 

to the claim for asylum or refugee status. 

Therefore, asking questions about ‘what 

he or she does in bed’ is never 

appropriate.’’ (quoting USCIS, RAIO 

Directorate—Officer Training: Guidance 

for Adjudicating Lesbian, Gay, Bisexual, 

Transgender, and Intersex (LGBTI) 

Refugee and Asylum Claims 34 (Dec. 28, 

2011))). Further, although Federal case 

law is clear that stereotypes have no 

place as a basis to deny asylum 

applications, e.g., Doe, 956 F.3d at 155 

n.10 (collecting cases), there is no 

similar Federal case law regarding the 

use of stereotypes as a basis for granting 

asylum applications, and the issue of 

the reliance on stereotypes to support an 

asylum application has arisen only 

recently, Matter of A–B–, 27 I&N Dec. at 

336 n. 9. Consequently, as both 

immigration judges and DHS are already 

bound by policy, if not also law, not to 

rely on stereotypes as a basis to oppose 

or deny an asylum application, the rule 

does not create any asymmetry 

regarding evidence of stereotypes. To 

the contrary, it corrects an existing 

asymmetry to ensure that asylum 

applications are not granted based on 

inappropriate evidence of stereotypes. 

4.6. Internal Relocation 

Comment: Commenters generally 

expressed concern that the NPRM 

would create a standard for the 

analyzing the reasonableness of internal 

relocation that almost no applicant for 

asylum, withholding of removal, or 

protection under the CAT regulations 

would be able to meet.58

Commenters expressed several 

concerns with the proposed list of 

factors pertaining to the internal 

relocation analysis in proposed 8 CFR 

208.13(b)(3) and 1208.13(b)(3). First, 

commenters expressed concern that the 

list places too much weight on the 

identity and reach of the persecutor, and 

that it lacks factors pertaining to the 

asylum seeker and factors unrelated to 

the asylum application (such as country 

conditions). 

Second, commenters asserted that the 

proposed list inappropriately implies 

that asylum seekers coming from large 

countries or who are subjected to 

persecution from a single source can 

reasonably relocate internally. Some 

commenters argued that persecution 

does not end at the limits of political 

jurisdictions and that persecutors could 

have contacts throughout a country or 

region. One commenter noted that 

UNHCR guidance does not require an 

asylum seeker to prove that his or her 

entire home country is unsafe before 

seeking asylum. Similarly, one 

commenter expressed concern with the 

proposed definition of the term 

‘‘safety,’’ arguing that there has been no 

judicial disagreement or confusion 

pertaining to the current regulation and 

that the proposed definition would limit 

adjudicators’ ability to perform case-bycase analyses. 

Third, commenters argued that the 

proposed rule inappropriately focuses 

on an asylum seeker’s ability to travel to 

the United States. Commenters noted a 

lack of jurisprudence discussing ability 

to travel and alleged that since asylum 

seekers had to first travel to the United 

States to make a claim, the factor would 

lead to the denial of most applications. 

Fourth, commenters similarly 

expressed concern that the proposed 

rule would eliminate the reasonableness 

analysis, thus forcing adjudicators to 

ignore the overall context of an asylum 

applicant’s plight. One commenter 

argued that many cases have been sent 

to the BIA from Federal courts so that 

adjudicators could apply the current 

reasonableness test to internal 

relocation determinations. 

Finally, commenters took issue with 

the NPRM’s assertion that 8 CFR 

208.13(b) and 1208.13(b) include 

‘‘unhelpful’’ language that undermines 

the need for the entire section. 

Commenters noted that Federal courts 

and the BIA have almost unanimously 

endorsed the current language and have 

not raised such concerns. 

Commenters also expressed concern 

with the proposed regulation’s change 

to the burden of proof for asylum 

seekers who establish they were 

subjected to past persecution by a nongovernmental entity. Commenters 

argued that, contrary to the NPRM’s 

assertion, the current regulations are 

preferable. Specifically, increasing the 

burden would be inappropriate, 

commenters argued, because asylum 

seekers would have already established 

past persecution and that the 

government is unable or unwilling to 

protect them. 

One commenter noted that the 

proposed change to the burden of proof 

is unnecessary because DHS could offer 

information evidencing that internal 

relocation is reasonable, and then the 

applicant could respond to such 

information. 

One commenter argued that the 

proposed change to the burden of proof 

in the case of non-state actors unfairly 

targets asylum seekers from Central 

American countries and Mexico because 

the types of individuals and groups that 

would be considered non-state actors 

under the proposed rule are commonly 

cited persecutors in asylum cases 

pertaining to these countries. 

Response: To respond to commenters’ 

concerns that ‘‘almost no applicant . . . 

would be able to meet’’ the revised 

standard for reasonableness of internal 

relocation, the Departments reject that 

concern as speculative. The 

Departments also reject a commenter’s 

allegation that the factors in this section 

were ‘‘justifications to deny applications 

of bona fide asylum seekers.’’ These 

factors are relevant and material to an 

alien’s asylum eligibility, as discussed 

in further detail below. 

The Departments emphasize that the 

rule requires adjudicators to consider 

‘‘the totality of the relevant 

circumstances’’ (as stated in 8 CFR 

208.13(b)(3), 1208.13(b)(3) (asylum); 

208.16(b)(3), 1208.16(b)(3) (statutory 

withholding of removal)) when 

determining the reasonableness of 

internal relocation. The Departments 

note that the proposed list identifies the 

‘‘most relevant’’ circumstances for 

consideration and provides a 

streamlined presentation of those 

factors. See 85 FR at 36282. The list of 

factors in paragraph (b)(3) is not 

exhaustive, however, so the regulatory 

amendments do not foreclose 

consideration of factors mentioned by 

commenters, such as factors related to 

the particular asylum seeker or factors 

unrelated to the asylum application. 

This approach is not a one-size-fits-all 

analysis, as one commenter alleged. 

Rather, the totality of the relevant 

circumstances test allows adjudicators 

to consider each case individually. 

Relatedly, the Departments disagree 

that the list of factors afford inordinate 

weight to the identity and reach of the 

persecutor or that adjudicators must 

make determinations in a vacuum. As a 

baseline matter, asylum is a form of 


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discretionary relief for which an 

applicant must demonstrate to the 

Secretary or Attorney General that he or 

she, inter alia, is a refugee as defined in 

section 101(a)(42) of the Act, 8 U.S.C. 

1101(a)(42), and warrants a favorable 

exercise of discretion. INA 208(b)(1)(A), 

8 U.S.C. 1158(b)(1)(A); CardozaFonseca, 480 U.S. at 428 n.5; 8 CFR 

208.14(a), (b), 1208.14(a), (b). To 

determine whether the applicant is a 

refugee under section 101(a)(42) of the 

Act, 8 U.S.C. 1101(a)(42), the 

Departments assess the applicant’s ‘‘fear 

of persecution,’’ which includes 

whether the applicant could relocate to 

avoid future persecution and whether it 

would be reasonable to do so. See 

Melkonian v. Ashcroft, 320 F.3d 1061, 

1069 (9th Cir. 2003) (requiring a finding 

that an alien could relocate to avoid 

persecution and that it ‘‘must be 

reasonable to expect them to do so’’ 

(citing Cardenas v. INS, 294 F.3d 1062, 

1066 (9th Cir. 2002)); see also Singh v. 

Ilchert, 63 F.3d 1501, 1511 (9th Cir. 

1995) (permitting the Attorney General 

to assess an alien’s ability to relocate to 

a safer part of the country). The Act 

does not require consideration of 

internal relocation. See generally INA 

208, 8 U.S.C. 1158. Rather, this analysis 

was implemented by regulation to 

address whether ‘‘an [asylum] applicant 

may be able to avoid persecution in a 

particular country by relocating to 

another area of that country.’’ Asylum 

Procedures, 65 FR 76121 (Dec. 6, 2000). 

This rule would refine those 

regulations, which agencies may do so 

long as they give a reasoned explanation 

for the change. See, e.g., Encino 

Motorcars, LLC v. Navarro, 136 S. Ct. 

2117, 2125 (2016) (‘‘Agencies are free to 

change their existing policies as long as 

they provide a reasoned explanation for 

the change.’’ (citing Brand X, 545 U.S. 

at 981–82)). 

As the Departments explained in the 

NPRM, the changes are necessary for 

numerous reasons. First, the 

Departments believe the ‘‘current 

regulations regarding internal relocation 

inadequately assess the relevant 

considerations.’’ 85 FR at 36282. 

Second, the Departments changed the 

regulatory burdens of proof because the 

Departments determined that the 

burdens should generally align with 

those ‘‘baseline assessments of whether 

types of persecution generally occur 

nationwide, while recognizing that 

exceptions, such as persecution by local 

governments or nationwide 

organizations, might overcome these 

presumptions.’’ Id. Third, the 

Departments made amendments to 

facilitate ‘‘ease of administering these 

provisions.’’ Id. The Departments 

believe that the rulemaking will better 

serve the needs of adjudicators who will 

benefit from the addition of factors that 

more adequately assess relevant 

considerations for internal relocation 

and the elimination of less relevant 

factors. Despite commenters’ 

disagreements with the new list of 

factors, the Departments believe that the 

regulations must clearly and accurately 

guide adjudicators in assessing the 

reasonableness of internal relocation. 

The Departments anticipate that the 

new regulations will facilitate more 

accurate and timely determinations, 

given that adjudicators will spend most 

of their time considering the most 

relevant factors and less time 

considering less relevant factors or 

trying to determine whether certain 

factors are relevant. This is especially 

significant considering the 

unprecedented pending caseload and 

the need for efficient adjudication. See 

EOIR, Adjudication Statistics: Total 

Asylum Applications (Oct. 13, 2020), 

https://www.justice.gov/eoir/page/file/ 

1106366/download. Given these 

revisions to the regulations, adjudicators 

are not left to make determinations ‘‘in 

a vacuum,’’ as commenters suggested. 

Accordingly, the Departments 

determined that the following factors 

were most relevant to an adjudicator’s 

analysis: ‘‘the size of the country of 

nationality or last habitual residence, 

the geographic locus of the alleged 

persecution, the size, reach, or 

numerosity of the alleged persecutor, 

and the applicant’s demonstrated ability 

to relocate to the United States in order 

to apply for asylum.’’ 8 CFR 

208.13(b)(3), 1208.13(b)(3) (asylum); 

208.16(b)(3), 1208.16(b)(3) (statutory 

withholding of removal). The 

Departments do not imply that this list 

compels the conclusion that asylum 

seekers who come from large countries 

or who were subjected to persecution 

from a single source can reasonably 

relocate internally, as commenters 

alleged. Instead, the Departments find 

those factors ‘‘most relevant’’ for 

adjudicators to consider in determining 

whether internal relocation is 

reasonable—not that those factors 

absolutely indicate that internal 

relocation is reasonable. 85 FR at 36282. 

Furthermore, as noted above, the listed 

relevant factors are not exhaustive and 

adjudicators may consider other factors 

that may be relevant to a particular case. 

As commenters pointed out, the 

Departments recognize that persecutors 

may not be confined to political 

jurisdictions, which is already reflected 

in the factor assessing the ‘‘size, reach, 

or numerosity of the alleged 

persecutor.’’ 8 CFR 208.13(b)(3), 

1208.13(b)(3) (asylum); 208.16(b)(3), 

1208.16(b)(3) (statutory withholding of 

removal). Moreover, the Departments 

disagree with a commenter’s allegation 

that the rule redefines safety—neither 

the proposed rule nor this final rule 

redefines ‘‘safety.’’ 

The Departments disagree that the 

factor assessing the alien’s ability to 

travel to the United States is 

inappropriate. First, this factor is 

considered under the totality of the 

circumstances; thus, this factor’s 

presence will not automatically result in 

one determination or another. The 

Departments added this factor so that 

adjudicators would fully consider 

whether an alien had already traveled a 

great distance to relocate to the United 

States, and whether the alien’s ability to 

do so reflected a similar ability to 

relocate within the country from which 

the alien is seeking protection. Second, 

in contrast to commenters, the 

Departments believe that a lack of 

jurisprudence on this factor counsels in 

favor of including it in the regulation. 

Nor do the Departments find the lack of 

directly relevant jurisprudence 

surprising. Because the current 

regulations do not highlight an alien’s 

ability to travel to the United States as 

one of the most relevant factors, courts 

would have had little reason to consider 

this factor unless a party raised it. See, 

e.g., Garcia-Cruz v. Sessions, 858 F.3d 1, 

8–9 (1st Cir. 2017) (remanding the case 

to the BIA to consider the 

reasonableness factors specifically 

provided in the regulations); Khattak, 

704 F.3d at 203–04 (same). 

Nevertheless, case law has considered 

travel-related factors such as an alien’s 

return trips or previous relocations. See, 

e.g., Ullah v. Barr, No. 18–28912020 WL 

6265858, at *1–2 (2d Cir. Oct. 26, 2020) 

(holding that country’s lack of 

restriction on internal movement or 

relocation and alien’s ability to work 

and move around the country without 

incident supported the BIA’s finding 

that the alien could safely relocate to 

avoid future persecution); Gambashidze 

v. Ashcroft, 381 F.3d 187, 193 (3d Cir. 

2004) (considering, in part, that the 

alien and his family relocated to a city 

that ‘‘is not a great distance’’ from the 

city where they faced persecution before 

the alien relocated again to the United 

States); Belayneh v. I.N.S., 213 F.3d 488, 

491 (9th Cir. 2000) (holding that the 

alien had not established a reasonable 

fear of future persecution in part 

because she had ‘‘traveled to the United 

States and returned to Ethiopia three 

times without incident’’). These cases 

provide examples in which courts 


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recognized that the ability and 

willingness to travel and the distance 

traveled are all relevant to the 

reasonableness inquiry because they 

may indicate the extent to which an 

alien is physically or financially able to 

travel. In that same vein, the 

Departments have determined that an 

alien’s ability to travel to the United 

States is clearly relevant and 

appropriate to the reasonableness 

inquiry. 

The rule does not eliminate the 

reasonableness analysis, as commenters 

alleged. First, the heading of each 

regulatory section is ‘‘Reasonableness of 

internal relocation.’’ 8 CFR 208.13(b)(3), 

1208.13(b)(3) (asylum); 208.16(b)(3), 

1208.16(b)(3) (statutory withholding of 

removal). The heading indicates the 

content of the section. What follows is 

a list of factors and the requisite 

burdens of proof to aid an adjudicator’s 

assessment of the reasonableness of 

internal relocation. For example, the 

regulations state, in the case of a 

governmental persecutor, ‘‘it shall be 

presumed that internal relocation would 

not be reasonable, unless the 

Department of Homeland Security 

establishes by a preponderance of the 

evidence that, under all the 

circumstances, it would be reasonable 

for the applicant to relocate’’ and, in the 

case of a non-governmental persecutor, 

‘‘there shall be a presumption that 

internal relocation would be reasonable 

unless the applicant establishes, by a 

preponderance of the evidence, that it 

would be unreasonable to relocate.’’ 8 

CFR 208.13(b)(3)(ii), (b)(3)(iii), 

1208.13(b)(3)(ii), (b)(3)(iii) (emphases 

added). The reasonableness inquiry 

continues to be an active prong of the 

internal relocation assessment. In 

addition, under the new regulations, 

adjudicators must not disregard other 

factors, as commenters alleged; rather, 

the regulations instruct adjudicators to 

consider ‘‘the totality of the relevant 

circumstances.’’ 8 CFR 208.13(b)(3), 

1208.13(b)(3). Application of the 

previous regulations by courts and the 

BIA are irrelevant and unpersuasive as 

evidence that the rules cannot be 

changed. As previously explained, it is 

properly within the Departments’ 

authority to revise their regulations. See, 

e.g., Encino Motorcars, LCC, 136 S. Ct. 

at 2125. 

The Departments maintain that the 

language in the previous regulations 

was unhelpful. 85 FR at 36282. 

Equivocal phrases in the prior 

regulation—that factors ‘‘may, or may 

not, be relevant’’—are almost 

paradigmatically unhelpful. The 

Departments believe the revised 

regulations, including review under the 

totality of the circumstances and the 

nonexhaustive list of factors provided, 

will continue to allow adjudicators to 

assess internal relocation on a case-bycase basis. 

Although commenters alleged that 

Federal courts and the BIA have ‘‘nearly 

unanimously endorsed’’ the previous 

regulations, the cases referenced in 

support of their allegations merely 

apply the previous regulations. Judicial 

application of regulations cannot be 

construed as ‘‘endorsing’’ the 

regulations except to the extent that a 

court finds the regulations to be a 

reasonable interpretation of the statute. 

See Chevron, 467 U.S. at 844 (‘‘[A] court 

may not substitute its own construction 

of a statutory provision for a reasonable 

interpretation made by the 

administrator of an agency.’’). 

Finally, the Departments disagree that 

changing the burden of proof is 

inappropriate. As explained in the 

NPRM, the Departments believe the 

realigned burden of proof follows the 

‘‘baseline assessments of whether types 

of persecution generally occur 

nationwide, while recognizing that 

exceptions, such as persecution by local 

governments or nationwide 

organizations, might overcome these 

presumptions.’’ 85 FR at 36282. 

Contrary to the commenters’ assertion, 

when an adjudicator is determining 

reasonableness of internal relocation, an 

applicant may not have already 

established past persecution or that the 

government was unable or unwilling to 

protect the alien. For example, an 

applicant may be claiming a fear of 

future persecution pursuant to 8 CFR 

208.13(b)(2), 1208.13(b)(2). Although 

showing past persecution raised a 

rebuttable presumption that internal 

relocation would be unreasonable under 

the prior regulation, the Departments 

have concluded, upon fresh review, that 

applying a blanket presumption 

independent of the identity of the 

persecutor is inconsistent with 

assessments of how widespread 

persecution is likely to be based on the 

identity of the alleged persecutor. 

Whereas government or governmentsponsored actors would generally be 

expected to have nationwide influence, 

a private individual or organization 

would not ordinarily have such reach. 

Placing the burden on the government 

to show that the alien’s fear of future 

persecution is not well-founded where 

he was previously persecuted by a nongovernmental actor therefore inverts the 

usual burden of proof—which lies with 

the applicant—without good reason. See 

85 FR at 36282 (explaining this 

rationale). 

In the final rule, DHS still bears the 

burden to demonstrate that the 

applicant could relocate to avoid future 

persecution and that it would be 

reasonable for the applicant to do so in 

the case of a governmental persecutor (8 

CFR 208.13(b)(3)(ii), 1208.13(b)(3)(ii) 

(asylum); 208.16(b)(3)(ii), 

1208.16(b)(3)(ii) (statutory withholding 

of removal)), and the alien bears the 

burden to demonstrate that it would be 

reasonable to relocate in the case of a 

non-governmental persecutor (8 CFR 

208.13(b)(3)(iii), 1208.13(b)(3)(iii)). 

These burdens reflect the Departments’ 

belief that aliens who claim past 

persecution by non-state actors should 

bear the burden to rebut the 

presumption that internal relocation is 

reasonable. 

The different burdens of proof do not 

unfairly target or discriminate against 

asylum seekers from Central American 

countries and Mexico, as commenters 

alleged. The new burden of proof 

applies to all asylum seekers, regardless 

of the country of origin. The 

Departments note that, contrary to the 

commenters’ allegations, the examples 

of private-actor persecutors provided by 

the regulations exist in many countries, 

not just Central American countries and 

Mexico. See, e.g., Mashiri v. Ashcroft, 

383 F.3d 1112, 1115–16 (9th Cir. 2004) 

(detailing facts in which a German 

citizen of Afghan descent was 

persecuted by non-state actors in 

Germany, some of whom were part of a 

Neo-Nazi mob); Doe v. Att’y Gen. of the 

U.S., 956 F.3d 135, 139–40 (3d Cir. 

2020) (detailing facts in which a 

Ghanaian citizen was persecuted by 

family members and neighbors in 

Ghana). 

4.7. Factors for Consideration in 

Discretionary Determinations 

Comment: Commenters generally 

expressed concern that the Departments 

did not provide a sufficient justification 

for the proposed changes and did not 

consider the practical consequence of 

the proposed rule. Commenters 

similarly expressed general concerns 

that the proposed changes are in conflict 

with section 208(a)(1) of the Act, 8 

U.S.C. 1158(a)(1), are contrary to case 

precedent, are immoral, and would 

negatively impact children seeking 

asylum. The true purpose of the rule, 

some commenters asserted, is to lead to 

the denial of virtually all asylum 

applications. 

Commenters expressed concern that 

the Departments seek to depart from the 

BIA’s approach in Matter of Pula, 19 

I&N Dec. 467 (BIA 1987). One 

commenter stated that it was 

inappropriate to use language from the 


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case to justify the proposed new factors 

while also superseding the case’s central 

holding. Commenters stated that Matter 

of Pula instructs that danger of 

persecution should outweigh all but the 

most egregious factors. Commenters 

similarly stated that Matter of Pula 

requires adjudicators to consider the 

totality of the circumstances and to not 

give any particular factor such 

significant weight that it would 

outweigh all the others. 

Citing East Bay Sanctuary Covenant 

v. Barr, 964 F.3d 832 (9th Cir. 2020), one 

commenter expressed concern that the 

proposed rule conflicts with recent 

Federal court precedent that the 

creation of ‘‘eligibility bars’’ to asylum 

is constrained by statute. The 

commenter asserted that as some of the 

discretionary factors would require 

denial of applications as a matter of 

discretion, they are, in actuality, 

unlawful eligibility bars. 

Commenters stated that the proposed 

negative factors that adjudicators would 

be required to consider are not related 

to the merits of an asylum claim and are 

unavoidable in many cases. As a result, 

commenters argued, adjudicators would 

be required to deny most asylum cases 

as a matter of discretion. One 

commenter asserted that the 

Departments did not consider 

alternative policy options, and one 

commenter stated that the rule should 

be amended to require adjudicators to 

consider positive factors in their 

discretionary determinations. 

Commenters argued that inappropriately 

cabining discretion in this way is in 

conflict with making asylum 

determinations on a case-by-case basis. 

Commenters expressed concern that 

the only way for applicants to overcome 

the presence of nine of the proposed 

adverse factors would be to show 

‘‘extraordinary circumstances’’ or 

‘‘exceptional and extremely unusual 

hardship.’’ One commenter stated that a 

demonstration of past persecution or a 

well-founded fear of future persecution 

is ‘‘per se’’ exceptional and extremely 

unusual hardship. Therefore, the 

commenter argued that by meeting the 

legal standard for asylum, applicants 

necessarily would meet the proposed 

new standard of exceptional and 

extremely unusual hardship. The 

commenter similarly stated that past 

persecution is ‘‘exceptional hardship.’’ 

Another commenter stated that 

application of the ‘‘exceptional and 

extremely unusual hardship’’ standard 

in exercising discretion for asylum 

applications contravenes the INA 

because Congress did not expressly 

provide for that heightened standard. 

Instead, the commenter noted that in 

section 208(b)(1)(A) of the Act, 8 U.S.C. 

1158(b)(1)(A), Congress stated that the 

Attorney General ‘‘may’’ grant asylum. 

The commenter asserted that if Congress 

intended the use of a heightened 

standard, it would have expressly done 

so, as it did in section 240A(b)(1)(D) of 

the Act, 8 U.S.C. 1229b(b)(1)(D), for 

non-LPR cancellation of removal. The 

commenter cited the Supreme Court’s 

decision in Cardoza-Fonseca for 

support. See 480 U.S. at 432 (‘‘[W]here 

Congress includes particular language in 

one section of a statute but omits it in 

another section of the same Act, it is 

generally presumed that Congress acts 

intentionally and purposely in the 

disparate inclusion or exclusion.’’). 

Accordingly, consistent with Matter of 

Marin, 16 I&N Dec. 581, 584–85 (BIA 

1978), the commenter asserted that the 

totality of the circumstances approach 

should be applied in the exercise of 

discretion for asylum applications. 

Commenters disagreed with the 

Departments’ position that creating a list 

of proposed factors would save 

adjudicators time. Specifically, 

commenters noted that since a finding 

of ‘‘extraordinary circumstances’’ or an 

exceptional and extremely unusual 

hardship would require a separate 

hearing, the proposed factors would not 

save time. 

Response: The Departments disagree 

that they failed to provide sufficient 

justification for this proposed change in 

the NPRM, evidenced by the three-page 

discussion of this section alone. See 85 

FR at 36282–85. Nevertheless, the 

Departments provide further 

explanation in this final rule. 

Asylum is a discretionary benefit. INA 

208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) 

(providing that the Departments ‘‘may 

grant asylum to an alien who has 

applied for asylum in accordance with 

the requirements and procedures 

established by the Secretary of 

Homeland Security or the Attorney 

General under this section’’ (emphasis 

added)); see also Cardoza-Fonseca, 480 

U.S. at 443 (‘‘[A]n alien who satisfies 

the applicable standard under § 208(a) 

does not have a right to remain in the 

United States; he or she is simply 

eligible for asylum, if the Attorney 

General, in his discretion, chooses to 

grant it.’’ (emphases in original)). 

Accordingly, ‘‘with respect to any form 

of relief that is granted in the exercise 

of discretion,’’ an alien must satisfy the 

eligibility requirements for asylum and 

establish that the application ‘‘merits a 

favorable exercise of discretion.’’ INA 

240(c)(4)(A),8 U.S.C. 1229a(c)(4)(A); see 

also Matter of A–B–, 27 I&N Dec. at 345 

n.12 (explaining that the ‘‘favorable 

exercise of discretion is a discrete 

requirement for the granting of asylum 

and should not be presumed or glossed 

over solely because an applicant 

otherwise meets the burden of proof for 

asylum eligibility under the INA’’ and 

providing relevant discretionary factors 

to consider in the exercise of such 

discretion), abrogated on other grounds, 

Grace II, 965 F.3d at 897–900. 

In its broadest sense, legal discretion 

is defined as the ‘‘exercise of judgment 

by a judge or court based on what is fair 

under the circumstances and guided by 

the rules and principles of law; a court’s 

power to act or not act when a litigant 

is not entitled to demand the act as a 

matter of right.’’ Discretion, Black’s Law 

Dictionary (11th ed. 2019); see also 

Discretion, Merriam-Webster (last 

updated July 6, 2020), https:// 

www.merriam-webster.com/dictionary/ 

discretion (defining ‘‘discretion’’ as the 

‘‘power of free decision or latitude of 

choice within certain legal bounds’’). 

While the statute and case law are clear 

that a grant of asylum is subject to 

discretion, see INA 208(b)(1)(A), 8 

U.S.C. 1158(b)(1)(A); INS v. Stevic, 467 

U.S. 407, 423 n.18 (1984), the statute 

and regulations are silent as to guidance 

that may direct such exercise of 

discretion. 

The BIA has explained that the 

exercise of discretion requires 

consideration of the relevant factors in 

the totality of the circumstances, based 

on the facts offered by the alien to 

support the application in each case. 

See Matter of Pula, 19 I&N Dec. at 473 

(noting that ‘‘a number of factors . . . 

should be balanced in exercising 

discretion’’). Further, the BIA has 

provided factors that may be relevant to 

the inquiry, including humanitarian 

considerations, such as the alien’s age or 

health; any countries through which the 

alien passed en route to the United 

States and those countries’ available 

refugee procedures; personal ties to the 

United States; and the alien’s use of 

fraudulent documents. See id. at 473–74 

(‘‘Each of the factors . . . will not, of 

course, be found in every case. . . . In 

the absence of any adverse factors, 

however, asylum should be granted in 

the exercise of discretion.’’). 

In building upon the BIA’s guidance 

and evaluating all policy options, the 

Departments have determined that it is 

appropriate to codify discretionary 

factors for adjudicators to consider. 85 

FR at 36283. The statute and regulations 

currently contain discretionary factors 

for consideration in regard to other 

forms of relief. See, e.g., 8 CFR 212.7(d), 

1212.7(d) (authorizing the Attorney 

General to consent to an application for 

visa, admission to the United States, or 

adjustment of status, for certain criminal 


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aliens when declining to favorably 

exercise discretion ‘‘would result in 

exceptional and extremely unusual 

hardship’’); see also Matter of Y–L–, 23 

I&N Dec. 270, 276–77 (A.G. 2002) 

(providing various factors that may 

indicate extraordinary and compelling 

circumstances that the Attorney General 

may consider to determine whether 

certain aggravated felonies are 

‘‘particularly serious crimes’’ under 

section 241(b)(3)(B) of the INA for 

purposes of withholding of removal); 

Matter of Jean, 23 I&N Dec. 373, 383– 

84 (A.G. 2002) (explaining that 

discretionary relief requires a balancing 

of the equities, including, if any, 

extraordinary circumstances, the gravity 

of an alien’s underlying criminal 

offense, or unusual hardships). The 

Departments have similar authority to 

promulgate discretionary factors for 

asylum relief. INA 208(b)(1)(A), 8 U.S.C. 

1158(b)(1)(A); see 85 FR at 36283. 

Contrary to commenters’ concerns 

that the proposed rule effectively creates 

bars (or ‘‘eligibility bars’’) to asylum and 

inappropriately cabins adjudicators’ 

discretion, the Departments reiterate 

that this rulemaking identifies various 

factors for consideration in making a 

discretionary determination on an 

asylum application. These factors are 

not bars; accordingly, concerns that the 

rule would result in the denial of all 

asylum claims are misguided. Rather, in 

regard to the three significantly adverse 

factors, the proposed rule clearly stated 

that ‘‘the adjudicator should also 

consider any other relevant facts and 

circumstances to determine whether the 

applicant merits asylum as a matter of 

discretion.’’ Id. (emphasis added). And 

in regard to the nine adverse factors, the 

proposed rule stated that ‘‘the 

adjudicator may nevertheless favorably 

exercise discretion in extraordinary 

circumstances . . . or if the alien 

demonstrates, by clear and convincing 

evidence, that the denial of asylum 

would result in exceptional and 

extremely unusual hardship to the 

alien.’’ Id. (emphasis added). Thus, a 

finding that any of the factors applies 

does not foreclose consideration of other 

relevant facts and circumstances, which 

a true asylum ‘‘bar’’ would require. 

Commenters asserted that this rule is 

inconsistent with the BIA’s approach in 

Matter of Pula and subsequent related 

case law in which past persecution or a 

strong likelihood of future persecution 

‘‘should generally outweigh all but the 

most egregious of adverse factors.’’ 19 

I&N Dec. at 474. The Departments 

clearly stated in the NPRM that the rule 

‘‘supersede[d]’’ the BIA’s approach in 

Matter of Pula, 85 FR at 36285, which 

is squarely within their authority. 

‘‘Agencies are free to change their 

existing policies as long as they provide 

a reasoned explanation for the change.’’ 

Encino Motorcars, LLC, 136 S. Ct. at 

2125 (citing Brand X, 545 U.S. at 981– 

82). The Court has further explained 

what a ‘‘reasoned explanation’’ should 

entail: Awareness in its decision making 

process that it is changing positions; 

demonstration that the new policy is 

permissible under the implementing 

statute, and not just the APA; statement 

and belief that the new policy is better; 

and provision of ‘‘good reasons’’ for the 

new policy. See Organized Village of 

Kake v. U.S. Dep’t of Agric., 795 F.3d 

956, 966 (9th Cir. 2015) (en banc) 

(summarizing FCC v. Fox Television 

Stations, Inc., 556 U.S. 502, 515–16 

(2009)). In the NPRM, the Departments 

provided such information: awareness 

of changed position, 85 FR at 36285; 

demonstration that the policy is 

permissible under the INA and APA, see 

generally 85 FR at 36282–85; statement 

that the new policy is better, 85 FR at 

36283; and good reasons for the new 

policy, 85 FR at 36283, 36285. 

Accordingly, the Departments properly 

and permissibly changed their policy 

from Matter of Pula. 

Significantly, the rule does not 

preclude consideration of positive 

factors. Further, the NPRM instructed 

adjudicators to ‘‘consider any other 

relevant facts and circumstances to 

determine whether the applicant merits 

asylum as a matter of discretion.’’ 85 FR 

at 36283. Accordingly, the rule allows 

for consideration of positive equities as 

part of an adjudicator’s discretionary 

analysis. The Departments have 

determined that the factors provided in 

the NPRM are appropriate and relevant 

to such analysis. 

Moreover, the rule does not 

‘‘categorically limit’’ adjudicators’ 

discretion or make certain outcomes 

‘‘practically mandatory’’; rather, the rule 

guides the exercise of discretion by 

providing various factors for 

consideration. The NPRM clearly stated, 

and the Departments reiterate, that the 

proposed factors were ‘‘nonexhaustive.’’ 

85 FR at 36283. Further, the NPRM 

stated that ‘‘any other relevant facts and 

circumstances’’ should be considered 

and provided exceptions to one of the 

significantly adverse factors. See id. 

Accordingly, although the Departments 

proposed significantly adverse and 

adverse factors, an adjudicator must 

continue to consider positive factors in 

the discretionary analysis. 

The Departments disagree with 

commenters that past or future 

persecution should be considered ‘‘per 

se’’ exceptional and extremely unusual 

hardship. Rather, the Departments have 

determined that the approach described 

in the NPRM—providing criteria for an 

adjudicator’s consideration in the 

exercise of discretion, in addition to 

consideration of whether extraordinary 

circumstances or exceptional and 

extremely unusual hardship exists—is 

appropriate. Moreover, the Departments 

disagree that consideration of 

extraordinary circumstances or 

exceptional and extremely unusual 

hardship conflicts with the Act. 

Congress authorized the Attorney 

General to make discretionary asylum 

determinations, INA 208(b)(1)(A), 8 

U.S.C. 1158(b)(1)(A), and that authority 

permits him to deny asylum even if an 

applicant can establish past or future 

persecution. 

The Departments ‘‘believe that the 

inclusion of the proposed factors in the 

rule will better ensure that immigration 

judges and asylum officers properly 

consider, in all cases, whether 

applicants for asylum merit the relief as 

a matter of discretion, even if the 

applicant has otherwise demonstrated 

eligibility for asylum.’’ 85 FR at 36283, 

36285. In this way, the list of factors to 

consider, including consideration of 

extraordinary circumstances or 

exceptional and extremely unusual 

hardship, would take place in one 

streamlined adjudication. Accordingly, 

the Departments disagree with 

commenters that the list of factors 

would not save time, is ‘‘unworkable’’ 

or ‘‘cumbersome,’’ or limits adjudicatory 

discretion. 

The Departments also disagree that 

this section of the rule is immoral or 

would negatively impact children 

seeking asylum. Adjudicators consider 

these factors, as relevant, to all asylum 

cases. As it may relate specifically to 

children, if extraordinary circumstances 

exist or exceptional and extremely 

unusual hardships would arise if the 

application was denied, the adjudicator 

should consider such circumstances. 

See Section II.C.1.3 of this preamble for 

further discussion on this point. 

4.7.1. Unlawful Entry or Unlawful 

Attempted Entry Into the United States 

Comment: Commenters expressed 

general concern that the proposed 

regulation would improperly lead 

adjudicators to deny ‘‘virtually all’’ 

applications for asylum seekers who 

enter the United States between ports of 

entry. One commenter stated that the 

‘‘immediate flight’’ exception is too 

narrow. 

Commenters averred that the 

proposed regulation is contrary to 

section 208(a)(1) of the Act, 8 U.S.C. 

1158(a)(1), which instructs that 

individuals are eligible to apply for 


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59The permissibility of this practice is the subject 

of ongoing litigation, and the Departments decline 

to further comment on the legality or propriety of 

the practice in this rulemaking. See Al Otro Lado, 

Inc. v. McAleenan, No. 17–cv–02366–BAS–KSC, 

2020 WL 4015669 (S.D. Cal. July 16, 2020). 

asylum regardless of where they enter 

the United States. 

Commenters expressed concern that 

the proposed regulation is inconsistent 

with case law. Commenters argued that 

contrary to the NPRM’s argument, 

Matter of Pula, 19 I&N Dec. Dec. 467 

(BIA 1987), does not support the 

Departments’ position that an unlawful 

entry should be a significant adverse 

factor. Instead, one commenter asserted 

that in Matter of Pula the BIA reversed 

Matter of Salim, 18 I&N Dec. 311 (BIA 

1982), to the extent that Matter of Salim 

suggested that ‘‘the most unusual 

showing of countervailing equities’’ was 

needed to overcome a ‘‘circumvention 

of orderly procedures.’’ Citing, for 

example, Zuh v. Mukasey, 547 F.3d 504, 

511 n.4 (4th Cir. 2008), commenters 

similarly argued that Federal courts of 

appeals have given the manner of an 

asylum seeker’s entry into the United 

States very little weight (and sometimes 

no weight) in discretionary 

determinations and have noted that 

place of entry reveals little about the 

merits of the case. And, citing Huang v. 

INS, 436 F.3d 89, 100 (2d Cir. 2006), one 

commenter noted that the Second 

Circuit Court of Appeals reasoned that 

if an illegal manner of entry were 

afforded significant weight, then 

virtually no asylum applicant would 

prevail. 

Commenters expressed concern that 

codification of unlawful entry as a 

significantly adverse factor in 

discretionary determinations contradicts 

recent Federal court decisions from the 

Ninth Circuit Court of Appeals and the 

District Court for the District of 

Columbia that struck down November 

2018 regulations by the Departments. 

Commenters argued that the NPRM is 

similar to a 2018 Interim Final Rule 

(IFR) that, when coupled with a 

presidential proclamation issued the 

same day, made any individual who 

arrived between designated ports of 

entry ineligible for asylum. Commenters 

noted that the Ninth Circuit Court of 

Appeals found that the 2018 IFR was 

arbitrary and capricious and that it 

infringed upon treaty commitments (E. 

Bay Sanctuary Covenant v. Trump, 950 

F.3d 1242 (9th Cir. 2020)). Commenters 

noted that the District Court for the 

District of Columbia held that the bar 

was inconsistent with the INA and 

congressional intent (O.A. v. Trump, 

404 F. Supp. 3d 109, 147 (D.D.C. 2019)). 

Commenters expressed concern that the 

present rulemaking is intended to 

circumvent the courts’ decisions on the 

2018 IFR. 

Commenters disagreed with the 

NPRM’s reasoning that the proposed 

rule is necessary to address the strained 

resources used to adjudicate the 

growing number of asylum cases. One 

commenter asserted that ‘‘expediency’’ 

is not an appropriate consideration in 

determining the relief available to 

asylum seekers. The commenter also 

noted that in Gulla v. Gonzales, 498 

F.3d 911, 919 n.2 (9th Cir. 2007), the 

Ninth Circuit Court of Appeals held that 

‘‘hypothetical numbers’’ of potential 

asylum seekers is not a basis to deny 

relief to an applicant who has 

demonstrated a valid claim. The 

commenter similarly argued that 

limiting asylum to those who traveled 

from contiguous countries and those 

who flew directly to the United States 

is in conflict with case precedent and 

obligations under the 1967 Refugee 

Protocol. 

Commenters expressed concern with 

the impact of the proposed rule in light 

of the CBP’s practice of ‘‘metering.’’ 

Commenters asserted that, under the 

practice, applicants are required to wait 

for months in ‘‘dangerous conditions’’ 

in Mexico before they are able to apply 

for asylum. Commenters stated that 

some applicants are motivated to enter 

the United States between ports of entry 

in order to avoid the dangerous 

conditions. 

One commenter expressed concern 

that codifying unlawful entry as a 

significant adverse discretionary factor 

would particularly burden children. The 

commenter argued that children often 

arrive with adults (such as parents, 

smugglers, or traffickers) who choose 

the manner and place of entry. The 

commenter argued further that children 

who travel to the United States on their 

own may not comprehend the 

importance of arriving at a port of entry. 

Response: The Departments disagree 

that this factor will result in the denial 

of ‘‘virtually all’’ asylum applications. 

This factor is but one factor that an 

adjudicator must consider in light of all 

other relevant factors and 

circumstances. 85 FR at 36283. 

Likewise, the Departments disagree that 

the exception for aliens who enter or 

attempt entry ‘‘made in immediate 

flight,’’ 8 CFR 208.13(d)(1)(i), 

1208.13(d)(1)(i), is too narrow. The 

Departments believe this exception 

properly balances the need for orderly 

processing of aliens with urgent 

humanitarian considerations. 

As described throughout this rule, 

asylum is a discretionary benefit. INA 

208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). The 

Departments have a legitimate interest 

in maintaining order and security on 

U.S. borders through the administration 

of lawful admissions procedures and, as 

stated in the proposed rule, the 

Departments remain concerned by the 

immense strain on resources needed to 

process aliens who illegally enter the 

United States. 85 FR at 36283 (citing 

Aliens Subject to a Bar on Entry Under 

Certain Presidential Proclamations; 

Procedures for Protection Claims, 83 FR 

55934 (Nov. 9, 2018)). Aliens who 

unlawfully enter the United States 

circumvent the requirement that all 

applicants for admission be inspected, 

see INA 235(a)(3), 8 U.S.C. 1225(a)(3); 

break U.S. law, see INA 212(a)(6)(A), 8 

U.S.C. 1182(a)(6)(A); INA 275(a)(1), 8 

U.S.C. 1325(a)(1); and contribute to the 

ever-increasing strain on the 

government’s limited resources. Given 

such limited resources, and subject to a 

full discretionary analysis of all relevant 

factors as described in the NPRM, the 

Departments have determined that 

failure to lawfully apply for admission, 

in other words, unlawful entry or 

attempted unlawful entry, should 

generally be considered a significant 

adverse factor in an asylum 

adjudication. 

The Departments disagree with 

commenters’ allegations that DHS 

procedures at the border have ‘‘virtually 

shut down the processing of asylum 

applications’’ and prevented asylum 

seekers from lawfully presenting 

themselves at the border. At various 

times since 2016, CBP has engaged in 

metering to regulate the flow of aliens 

present at land ports of entry on the 

southern border in order to ‘‘address 

safety and health hazards that resulted 

from overcrowding at ports of entry.’’ 

See DHS, OIG 18–84, Special Review— 

Initial Observations Regarding Family 

Separation Issues Under the Zero 

Tolerance Policy 5–6 & n.11 (Sept. 27, 

2018), https://www.oig.dhs.gov/sites/ 

default/files/assets/2018-10/OIG-18-84- 

Sep18.pdf. Individuals who are subject 

to metering are not prevented from 

presenting at the port of entry.59

Claims that refugees who are unable 

to get a visa will have to overcome the 

significant negative discretionary factor 

are unfounded. The rule does not 

require any alien to obtain a visa in 

order to apply for asylum. Under the 

law, ‘‘[a]ny alien who is physically 

present in the United States or who 

arrives in the United States (whether or 

not at a designated port of arrival and 

including an alien who is brought to the 

United States after having been 

interdicted in international or United 

States waters) irrespective of such 

alien’s status, may apply for asylum,’’ 


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60Commenters cited Gulla, 498 F.3d at 917, 

which states that ‘‘it would be anomalous for an 

asylum seeker’s means of entry to render him 

ineligible for a favorable exercise of discretion,’’ id. 

(emphasis added), and Huang, 436 F.3d at 100, 

which contemplates whether ‘‘illegal manner of 

flight and entry were enough independently to 

support a denial of asylum,’’ id. (emphasis added). 

The Departments understand those cases to state 

that manner of entry cannot, on its own, bar an 

applicant from asylum relief. Further, the 

Departments note that in regards to manner of 

entry, Gulla found that the petitioner did not 

unlawfully enter or attempt to enter the United 

States, 498 F.3d at 919; thus, that case is not 

particularly relevant for purposes of the factor at 

issue in 8 CFR 208.13(d)(1)(i), 1208.13(d)(1)(i). 

61For example, commenters stated that Federal 

circuit courts have given ‘‘manner of entry’’ ‘‘little 

to no weight’’ in discretionary determinations. 

Commenters quoted from Zuh v. Mukasey, 547 F.3d 

504 (4th Cir. 2008). In context, however, the court 

first referenced Matter of Pula’s totality of the 

circumstances analysis and then stated that the 

‘‘use of fraudulent documents to escape imminent 

capture or further persecution’’ should be afforded 

‘‘little to no weight.’’ Id. at 511 n.4 (emphasis 

added). Zuh does not stand for the proposition that 

this factor should never be afforded greater weight. 

62Commenters cited E. Bay Sanctuary Covenant 

v. Trump, 950 F.3d 1242 (9th Cir. 2020), and O.A. 

v. Trump, 404 F. Supp. 3d 109, 147 (D.D.C. 2019). 

INA 208(a)(1), 8 U.S.C. 1158(a)(1), and 

nothing in the rule changes that 

statutory framework. Moreover, nothing 

in the rule changes the longstanding 

principle that the Secretary and the 

Attorney General may deny asylum as a 

matter of discretion, even to aliens who 

otherwise meet the statutory definition 

of a refugee. See INS v. CardozaFonseca, 480 U.S. at 428 n.5, 444–45 

(‘‘It is important to note that the 

Attorney General is not required to grant 

asylum to everyone who meets the 

definition of refugee. Instead, a finding 

that an alien is a refugee does no more 

than establish that ‘the alien may be 

granted asylum in the discretion of the 

Attorney General.’. . . [Congress] chose 

to authorize the Attorney General to 

determine which, if any, eligible 

refugees should be denied asylum.’’ 

(emphasis in original) (citation 

omitted)). Rather, consistent with the 

relevant authority, INA 208(b)(1)(A), 8 

U.S.C. 1158(b)(1)(A), the Secretary and 

Attorney General are simply providing 

additional clarity and guidance to 

adjudicators to aid their consideration 

of asylum claims as a matter of 

discretion. 

The Departments disagree with 

commenters’ assertion that Matter of 

Pula, 19 I&N Dec. 467 (BIA 1987), is 

‘‘fundamentally incompatible’’ with this 

rule. As a threshold matter, the 

Departments reiterate that the rule 

incorporates as a discretionary factor 

consideration of whether an alien 

unlawfully entered or attempted to 

unlawfully enter the United States. 85 

FR at 36283. Matter of Pula similarly 

allows for consideration of this factor as 

part of the discretionary analysis: 

Yet while we find that an alien’s manner 

of entry or attempted entry is a proper and 

relevant discretionary factor to consider in 

adjudicating asylum applications, we agree 

with the applicant that Matter of Salim, 

supra, places too much emphasis on the 

circumvention of orderly refugee procedures. 

This circumvention can be a serious adverse 

factor, but it should not be considered in 

such a way that the practical effect is to deny 

relief in virtually all cases. This factor is only 

one of a number of factors which should be 

balanced in exercising discretion, and the 

weight accorded to this factor may vary 

depending on the facts of a particular case. 

19 I&N Dec. at 473 (emphases added). 

The rule is consistent with Matter of 

Pula inasmuch as that factor must not be 

considered in a way that practically 

denies relief in all cases. The rule 

clearly states that the factor is one of 

many discretionary factors for an 

adjudicator to consider, consistent with 

Matter of Pula’s holding that the totality 

of the circumstances should be 

examined. 85 FR at 36283 (‘‘If one or 

more of these factors applies to the 

applicant’s case, the adjudicator would 

consider such factors to be significantly 

adverse for purposes of the 

discretionary determination, though the 

adjudicator should also consider any 

other relevant facts and circumstances 

to determine whether the applicant 

merits asylum as a matter of 

discretion.’’); 8 CFR 208.13(d), (d)(2)(ii), 

1208.13(d), (d)(2)(ii). Like Matter of 

Pula, the rule would not treat this factor 

as an absolute bar. See 8 CFR 1208.13(d) 

(‘‘Factors that fall short of grounds of 

mandatory denial of an asylum 

application may constitute discretionary 

considerations.’’). 

Similarly, the Departments disagree 

with commenters’ assertions that this 

rule contravenes section 208(a)(1) of the 

Act, 8 U.S.C. 1158(a)(1). As explained, 

this rule does not bar individuals from 

applying for asylum. The rule merely 

articulates that unlawful entry or 

attempted unlawful entry are significant 

adverse factors when considering 

whether to grant asylum as a matter of 

discretion. 

Commenters cited various Federal 

circuit court treatment that allegedly 

forecloses consideration of this factor as 

significantly adverse. Cases cited by the 

commenters, however, prohibit the use 

of this factor as a bar to asylum,60 and 

the Departments reiterate that the 

articulated discretionary factors do not 

equate to asylum bars. Commenters also 

selectively quoted from cases for 

support, thus mischaracterizing several 

cases as foreclosing provisions of the 

NPRM.61 Insofar as commenters cited to 

Matter of Pula’s approach that considers 

persecution or strong likelihood of 

future persecution as factors that 

‘‘generally outweigh all but the most 

egregious adverse factors,’’ 19 I&N Dec. 

at 474, the Departments reiterate that 

the rule supersedes Matter of Pula in 

that regard. See 85 FR at 36285. Given 

that non-discretionary statutory 

withholding of removal and CAT 

protection are available, the 

Departments believe the rule’s revised 

approach that considers the enumerated 

discretionary factors under the totality 

of the circumstances is appropriate in 

all cases, including those in which the 

applicant has otherwise demonstrated 

asylum eligibility. See id. 

Commenters also contend that this 

rule contradicts Federal precedents 

striking down the Departments’ 

previous rule, Aliens Subject to a Bar on 

Entry Under Certain Presidential 

Proclamations; Procedures for 

Protection Claims, 83 FR 55934 (Nov. 9, 

2018).62 Unlike the rule struck down in 

those cases, however, consideration of 

unlawful entry or attempted unlawful 

entry as a significantly adverse factor in 

a discretionary analysis is not an asylum 

bar. This factor is one of many factors 

that an adjudicator must consider in the 

totality of the circumstances. See 8 CFR 

208.13(d), 1208.13(d) (‘‘Factors that fall 

short of grounds of mandatory denial of 

an asylum application may constitute 

discretionary considerations.’’). 

Further, commenters alleged that the 

Departments ‘‘appear to seek a way 

around the courts’ decisions’’ by 

‘‘injecting’’ the previous rule barring 

asylum into the NPRM as a 

discretionary analysis and that the 

NPRM failed to ‘‘address how the 

purpose of INA 208(a) is effectuated by 

inclusion of unlawful entry as a 

significant adverse discretionary factor.’’ 

The Departments reject the contention 

that the rule is merely ‘‘injecting’’ one 

rule into another. The rule struck down 

in East Bay Sanctuary Covenant and 

O.A. established a bar to asylum 

eligibility, and the courts in those cases 

held that the rule exceeded the Attorney 

General’s authority under INA 

208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), to 

establish additional limitations on 

asylum eligibility. But both courts have 

acknowledged that the Attorney General 

has broader authority to deny asylum as 

a matter of discretion to otherwise 

eligible applicants under INA 

208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A). See 

E. Bay Sanctuary Covenant v. Barr, 964 

F.3d 832, 849 (9th Cir. 2020) (explaining 

in the context of a different eligibility 

bar that ‘‘the Attorney General’s 

discretion to deny asylum under 


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63Such entry would remain a significant adverse 

discretionary factor for any adults traveling with the 

minor, however. 

§ 1158(b)(1)(A)’’ is broader than ‘‘his 

discretion to prescribe criteria for 

eligibility for asylum’’ under 

§ 1158(b)(2)(C)); O.A., 404 F. Supp. 3d at 

151 (‘‘[T]here is a vast difference 

between considering how the alien 

entered the United States as one, among 

many, factors in the exercise of a 

discretionary authority, and a 

categorical rule that disqualifies any 

alien who enters across the southern 

border outside a designated port of 

entry.’’). Consistent with those 

decisions, this rule simply clarifies that 

unlawful entry or attempted unlawful 

entry is a significant adverse factor in a 

discretionary analysis. Further, the 

Departments point to their explanation 

at 85 FR at 36283: 

the Secretary and Attorney General have not 

provided general guidance in agency 

regulations for factors to be considered when 

determining whether an alien merits asylum 

as a matter of discretion. Nevertheless, the 

Departments have issued regulations on 

discretionary considerations for other forms 

of relief, e.g., 8 CFR 212.7(d), 1212.7(d) 

(discretionary decisions to consent to visa 

applications, admission to the United States, 

or adjustment of status, for certain criminal 

aliens), and the Departments believe it is 

similarly appropriate to establish criteria for 

considering discretionary asylum claims. 

The Departments acknowledge that 

while that explanation does not 

specifically reference section 

208(b)(1)(A) of the Act, 8 U.S.C. 

1158(b)(1)(A), the explanation clearly 

states that the purpose of this section of 

the rule is to establish criteria to guide 

the exercise of discretion required in 

considering asylum claims. As 

explained in the NPRM and this final 

rule, asylum is a discretionary form of 

relief under section 208(b)(1)(A) of the 

Act, 8 U.S.C. 1158(b)(1)(A). 

Accordingly, this rule enables efficient 

and proper exercise of the discretion 

required by section 208(b)(1)(A) of the 

Act, 8 U.S.C. 1158(b)(1)(A). 

Although the Departments agree with 

commenters that expediency is not the 

only relevant ‘‘consideration when 

making a determination that would 

dictate the relief available to an asylum 

seeker,’’ it is also true that ‘‘the public 

has an interest in relieving burdens on 

the asylum system and the efficient 

conduct of foreign affairs.’’ See E. Bay 

Sanctuary Covenant, 964 F.3d at 855. 

By disfavoring (though, not barring) 

asylum applicants who unlawfully enter 

the United States and by deterring 

meritless asylum claims, the 

Departments seek to ensure that those 

who need relief most urgently are better 

able to obtain it. As stated in the 

proposed rule, the Departments ‘‘believe 

that the inclusion of the proposed 

factors in the rule will better ensure that 

immigration judges and asylum officers 

properly consider, in all cases, whether 

applicants for asylum merit the relief as 

a matter of discretion, even if the 

applicant has otherwise demonstrated 

eligibility for asylum.’’ 85 FR at 36283. 

Adjudicators exercise independent 

judgment in each case before them, 8 

CFR 1003.10(b), and this rule facilitates 

efficient adjudication of asylum 

applications, consistent with such 

exercise of independent judgment. 

Contrary to the suggestions of 

commenters, the rule does not codify 

expediency as the sole—or even one— 

factor to consider in determining 

asylum relief. 

Commenters unpersuasively contend 

that the rule directly conflicts with 

Federal circuit case law. The 

commenters confuse the requirements 

for a grant of asylum by misconstruing 

a finding of eligibility as sufficient to 

grant asylum. Asylum eligibility is 

separate from the necessary 

discretionary analysis, as reflected in 

the statute: ‘‘with respect to any form of 

relief that is granted in the exercise of 

discretion,’’ an alien must establish 

satisfaction of the eligibility 

requirements for asylum and that the 

alien ‘‘merits a favorable exercise of 

discretion.’’ INA 240(c)(4)(A), 8 U.S.C. 

1229a(c)(4)(A); see also CardozaFonseca, 480 U.S. at 428 n.5 (explaining 

that ‘‘a finding that an alien is a refugee 

does no more than establish that ‘the 

alien may be granted asylum in the 

discretion of the Attorney General’ ’’ 

(quoting INA 208(a)) (emphases in 

original)); Matter of A–B–, 27 I&N Dec. 

at 345 n.12, (stating that the ‘‘favorable 

exercise of discretion is a discrete 

requirement’’ in granting asylum and 

should not be disregarded ‘‘solely 

because an applicant otherwise meets 

the burden of proof for asylum 

eligibility under the INA’’), abrogated 

on other grounds, Grace II, 965 F.3d at 

897–900. The rule does not predicate 

asylum eligibility on unlawful entry or 

attempted unlawful entry. Instead, the 

rule makes such factor a consideration 

in the discretionary analysis. 

In response to commenters’ other 

quoted excerpts from case law, the 

Departments considered that responding 

to unlawful entry or attempted unlawful 

entry require expenditure of valuable 

government resources. 85 FR at 36283. 

Not all aliens who unlawfully enter or 

attempt to unlawfully enter intend to 

apply for asylum, and apprehension and 

processing of these aliens continues to 

strain resources. Accordingly, the 

Departments codify this factor as part of 

the discretionary analysis, to be 

considered in the totality of the 

circumstances, to determine whether an 

applicant warrants a favorable exercise 

of discretion. 

The Departments disagree with 

commenters’ assertions that the rule, in 

practice, will deny relief to ‘‘virtually all 

asylum cases’’ or that the rule will limit 

asylum relief to applicants from 

contiguous nations or applicants who 

arrive by air. The Departments reiterate 

the independent judgment exercised by 

adjudicators in applying immigration 

law, and this rulemaking does not 

dictate particular outcomes. 

Adjudicators examine the unique factors 

in each case before them, in accordance 

with applicable law and regulations. 

Accordingly, the Departments find these 

assertions to be purely speculative. 

The Departments also disagree that 

the rule particularly burdens children. 

As discussed elsewhere in this final 

rule, adjudicators may consider whether 

extraordinary circumstances exist or 

whether exceptional and extremely 

unusual hardships would arise if the 

application was denied. In the case of a 

child’s unlawful entry or attempted 

unlawful entry, an adjudicator could 

consider an alien’s juvenile status and 

other related factors stemming from the 

alien’s age, as relevant to and presented 

in the case. See Section II.C.1.3 of this 

preamble for further discussion on this 

point. Nevertheless, the Departments 

recognize that aliens under the age of 18 

often have no say in determining their 

manner of entry into the United States. 

Accordingly, the Departments have 

modified the language in the final rule 

to reflect that the unlawful entry of an 

alien under age 18 would not 

necessarily be a significant adverse 

discretionary factor.63

4.7.2. Failure of an Alien To Apply for 

Protection From Persecution or Torture 

in at Least One Country Outside the 

Alien’s Country of Citizenship, 

Nationality, or Last Lawful Habitual 

Residence Through Which the Alien 

Transited Before Entering the United 

States 

Comment: Commenters expressed 

general opposition to the proposed 

rule’s requirement that adjudicators 

consider failure to apply for asylum in 

third countries through which 

applicants traveled to reach the United 

States to be a significant adverse factor. 

Commenters argued that placing great 

negative weight on the applicant’s route 

to the United States is inconsistent with 

discretionary determinations, which, 


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commenters argued, should be based on 

a consideration of all the equities. 

Commenters asserted that, contrary to 

the NPRM’s reasoning, failure to apply 

for asylum protection in a third country 

is often not evidence of misuse of the 

asylum system. Commenters asserted 

that there are numerous reasons that 

applicants would not apply for asylum 

in such countries, including lack of 

knowledge on how to apply and 

language barriers. Additionally, 

commenters cited violence and a fear of 

persecution as a reason that applicants 

may not apply for asylum in third 

countries. One commenter noted that 

the U.S. government has issued travel 

advisories urging Americans to 

reconsider travel plans to El Salvador, 

Honduras, Guatemala, and eleven 

Mexican states because of violence. 

Furthermore, the commenter noted that 

the U.S. government urges travelers to 

‘‘exercise caution’’ when travelling to 

sixteen other Mexican states, and that 

the United States has issued its highest 

travel warning—‘‘Do Not Travel’’—for 

the remaining five Mexican states. The 

commenter asserted that these warnings 

indicate that the conditions in some 

Mexican states are as dangerous as those 

in Syria and Iraq, which also have the 

highest travel warning. Given these 

various warnings, the commenter 

asserted, it is not reasonable to expect 

individuals to apply for asylum in 

Mexico. 

Commenters asserted that the NPRM’s 

reasoning failed to adequately consider 

the realities of the asylum systems in 

Mexico, Guatemala, Honduras, and El 

Salvador. In the case of Mexico, the 

commenter argued that the asylum 

system there is restrictive, underfunded, 

and underdeveloped. Commenters 

similarly asserted that the asylum 

systems in Guatemala, Honduras, and El 

Salvador are rudimentary. 

Commenters argued that the 

requirement to apply for asylum in a 

third country en route to the United 

States inappropriately advantaged 

asylum seekers coming from contiguous 

countries, as well as those who have the 

means to fly non-stop to the United 

States. With respect to asylum seekers 

who reached the United States by air 

travel, commenters asserted that the 

NPRM lacked a rationale as to why 

asylum seekers who had even a brief 

layover in another country would be 

required to apply for asylum in that 

country. Commenters noted that such a 

requirement is particularly harmful for 

those coming from countries where 

direct flights to the United States are not 

possible. Commenters asserted that this 

difference in treatment violated the 

Fifth Amendment of the United States 

Constitution. Commenters asserted that 

the exceptions outlined in the proposed 

regulation are identical to language in 

the Departments’ July 16, 2019, IFR. In 

considering the legality of the IFR, 

commenters stated that the Ninth 

Circuit Court of Appeals found the rule 

to be arbitrary and capricious and 

inconsistent with the INA. 

One commenter asserted that the 

proposed provision conflicts with two 

statutory provisions concerning when 

asylum seekers must apply for asylum 

in another country: Sections 

208(a)(2)(A) and 208(b)(2)(A)(vi) of the 

Act, 8 U.S.C. 1158(a)(2)(A), (b)(2)(A)(vi). 

Specifically, the commenter asserted 

that the proposed provision is not 

consistent with these statutory sections 

because it would exclude large classes 

of individuals from asylum, it does not 

require adjudicators to consider the 

safety of the third countries, and it does 

not require adjudicators to consider the 

fairness of third country asylum 

procedures. 

Response: This factor was 

promulgated as a way to ensure that 

aliens in need of protection apply at the 

first available opportunity. As stated in 

the proposed rule, the Departments 

believe that there is a higher likelihood 

that aliens who fail to apply for 

protection in a country through which 

they transit en route to the United States 

are misusing the asylum system. 85 FR 

at 36283; see also Asylum Eligibility 

and Procedural Modifications, 84 FR 

33829, 33831 (July 16, 2019). Because 

the Departments recognize that this may 

not always be the case, the rule provides 

exceptions for situations in which an 

alien was denied protection in the 

country at issue, the alien was a victim 

of a severe form of trafficking in 

persons, or the relevant country was not 

a party to certain humanitarian 

conventions, as provided in 8 CFR 

208.13(d)(1)(ii), 1208.13(d)(1)(ii). In 

addition, the adjudicator may consider 

whether exceptional circumstances exist 

or whether denial of asylum would 

result in exceptional and extremely 

unusual hardship to the alien. 85 FR at 

36285. 

Further, because this factor is raceneutral on its face and applies equally 

to all aliens, it does not violate the Fifth 

Amendment’s due process guarantee. 

See Washington v. Davis, 426 U.S. 229, 

242 (1976) (‘‘[W]e have not held that a 

law, neutral on its face and serving ends 

otherwise within the power of 

government to pursue, is invalid under 

the Equal Protection Clause simply 

because it may affect a greater 

proportion of one race than of 

another. . . . Standing alone, 

[disproportionate impact] does not 

trigger the rule . . . that racial 

classifications are to be subjected to the 

strictest scrutiny and are justifiable only 

by the weightiest of considerations.’’ 

(citation omitted)). This factor was not 

motivated by discriminatory intent. The 

rule and this factor in particular apply 

equally to all asylum applicants. To the 

extent that any one group is 

disproportionately affected by the rule, 

such outcome was not based on 

discriminatory intent, but rather on the 

demographics of the affected population 

and the Departments’ aim to ensure that 

asylum protection in the United States 

is available and timely granted to 

applicants who genuinely need it most. 

See generally 85 FR at 36283; see also 

Regents of Univ. of Cal., 140 S. Ct. at 

1915–16 (rejecting the claim that 

revoking an immigration policy that 

primarily benefitted Latinos supported 

an inference of invidious discrimination 

against Latinos, because any disparate 

impact could be explained by the 

demographic fact that ‘‘Latinos make up 

a large share of the unauthorized alien 

population’’). The Departments have 

determined that aliens who do not 

apply for protection in a country 

through which they transit are less 

likely to merit relief as a matter of 

discretion; thus, the Departments 

proposed such factor to be considered 

while also providing the opportunity for 

aliens to present evidence to the 

contrary. See id. 

Moreover, this factor is not arbitrary. 

The rule requires adjudicators to 

consider, as part of their discretionary 

analysis, whether an alien transited 

through a country en route to the United 

States but did not apply for asylum 

there. If an alien did not apply for 

protection, regardless of whether transit 

was effectuated by foot, flight layover, 

or sea, the alien forwent the immediate 

opportunity to apply for protection in 

the transited country for the future 

opportunity to apply for protection in 

the United States. The Departments 

believe this choice is relevant to an 

adjudicator’s discretionary analysis 

because it may indicate the urgency or 

legitimacy of an applicant’s claim. Thus, 

adjudicators should consider, as 

relevant, whether an alien failed to 

apply for protection in a country 

through which the alien transited en 

route to the United States, in the totality 

of the circumstances, to determine 

whether the alien merits relief as a 

matter of discretion. Moreover, nothing 

in the rule categorically prohibits an 

adjudicator from concluding that, under 

the circumstances, an applicant’s brief 

layover in transit is less probative of the 

urgency of the applicant’s claim than a 


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longer stay. Nor does anything in the 

rule categorically prohibit an 

adjudicator from concluding that, under 

the circumstances, an applicant’s 

layover in transit in a country known for 

human rights abuses is less probative of 

the urgency of the applicant’s claim 

than a layover in a country with a wellrecognized system for providing 

humanitarian protection. In any event, 

promulgating this factor in the rule 

ensures that adjudicators at least 

account for it in the exercise of 

discretion, even though its probative 

value may vary from case to case. 

The Departments also disagree with 

commenters who claim the Departments 

‘‘merely refer[ ] back to its earlier 

rulemaking on the third country transit 

bar.’’ The NPRM’s citation to Asylum 

Eligibility and Procedural 

Modifications, 84 FR 33829, 33831 (July 

16, 2019), was meant to clearly reiterate, 

while avoiding redundancy, the 

Departments’ continued belief that, 

generally, aliens who do not apply for 

protection in a country through which 

they transit en route to the United States 

are more likely to have a nonmeritorious asylum claim. As evidenced 

by the clause in the NPRM that states, 

‘‘as previously explained,’’ the 

Departments explained this factor 

earlier in the proposed rule. 85 FR at 

36282–83. The Departments provided 

extensive explanation of the BIA’s 

decision in Matter of Pula in which the 

BIA held that ‘‘whether the alien passed 

through any other countries or arrived 

in the United States directly from his 

country’’ was a factor to consider in 

determining whether a favorable 

exercise of discretion is warranted. 19 

I&N Dec. at 473–74. The Departments 

chose to codify that factor in the 

regulations. The Departments disagree 

with commenters who alleged that this 

factor ‘‘ignores’’ the fact that countries 

through which an alien may transit may 

be as dangerous as the country of origin 

and is based on an incorrect premise 

that there is a ‘‘real opportunity’’ to seek 

asylum in all countries party to the 

Convention. By becoming party to those 

treaties, the third countries through 

which an alien may have travelled are 

obligated, based on the treaties they 

have joined, to provide protection from 

removal to individuals who are likely to 

face persecution on account of a 

protected ground or torture. 

Accordingly, the Departments 

understand this factor to be consistent 

with the provisions of section 208 of the 

Act, 8 U.S.C. 1158. 

For similar reasons, the Departments 

find commenters’ assertion that there 

are numerous reasons that applicants 

would not apply for asylum in such 

countries, including lack of knowledge 

on how to apply and language barriers, 

as well as violence and a fear of 

persecution, as unpersuasive. As an 

initial point, aliens who apply for 

asylum in the United States do so 

despite the possibility of language 

barriers and lack of knowledge of 

application procedures, and 

commenters did not explain—and the 

Departments cannot ascertain—why 

these barriers would affect only other 

countries, but not the United States. 

Additionally, the alleged failure to 

apply in other countries due to violence 

or a fear of persecution is based 

principally on anecdotes and 

speculation and is neither borne out by 

evidence nor distinguished from similar 

conditions in the United States. For 

example, the UNHCR has documented a 

notable increase in asylum and refugee 

claims filed in Mexico—even during the 

ongoing COVID–19 pandemic—which 

strongly suggests that Mexico is an 

appropriate option for seeking refuge for 

those genuinely fleeing persecution. 

See, e.g., Summary of Statement by 

UNHCR Spokesperson Shabia Mantoo, 

Despite Pandemic Restrictions, People 

Fleeing Violence and Persecution 

Continue to Seek Asylum in Mexico, 

UNHCR (Apr. 28, 2020), https:// 

www.unhcr.org/en-us/news/briefing/ 

2020/4/5ea7dc144/despite-pandemicrestrictions-people-fleeing-violencepersecution-continue.html (‘‘While a 

number of countries throughout Latin 

America and the rest of the world have 

closed their borders and restricted 

movement to contain the spread of 

coronavirus, Mexico has continued to 

register new asylum claims from people 

fleeing brutal violence and persecution, 

helping them find safety.’’). Asylum and 

refugee claims filed in Mexico increased 

33 percent in the first three months of 

2020 compared to the same period in 

2019, with nearly 17,800 claims in 2020. 

Id. Asylum claims filed in Mexico rose 

by more than 103 percent in 2018 

compared to the previous year. UNHCR, 

Mexico Fact Sheet (Apr. 2019), https:// 

reporting.unhcr.org/sites/default/files/ 

UNHCR%20Factsheet%20Mexico%20- 

%20April%202019.pdf. Overall, 

‘‘[a]sylum requests have doubled in 

Mexico each year since 2015.’’ Clare 

Ribando Seelke, Cong. Rsch. Serv., 

IF10215, Mexico’s Immigration Control 

Efforts 2 (2020), https://fas.org/sgp/crs/ 

row/IF10215.pdf. 

Moreover, some private organizations 

acknowledge that asylum claims in 

Mexico have recently ‘‘skyrocket[ed],’’ 

that ‘‘Mexico has adopted a broader 

refugee definition than the U.S. and 

grants a higher percentage of asylum 

applications,’’ and that ‘‘Mexico may 

offer better options for certain refugees 

who cannot find international 

protection in the U.S.,’’ including for 

those ‘‘who are deciding where to seek 

asylum [i.e., between Mexico and the 

United States].’’ Asylum Access, 

Mexican Asylum System for U.S. 

Immigration Lawyers FAQ 1, 7 (Nov. 

2019), https://asylumaccess.org/wpcontent/uploads/2019/11/MexicanAsylum-FAQ-for-US-ImmigrationLawyers.pdf. If aliens coming to the 

United States through Mexico feared 

living in Mexico, it would be irrational 

for them to seek refuge there in large 

numbers; yet, that is precisely what the 

available data suggests. 

Additionally, commenters do not 

indicate why violence in part of one 

country is different from violence 

existing in a part of the United States. 

Just as violence may occur in parts of 

the United States but individuals fleeing 

persecution consider the country ‘‘safe’’ 

and want to live here, localized 

episodes of violence in other countries 

do not mean the country, as a whole, is 

unsafe for individuals fleeing 

persecution. In other words, the 

presence of local or regional violence, 

particularly criminal violence, exists in 

all countries, even those generally 

considered ‘‘safe,’’ but such presence of 

local or regional violence does not 

render those countries too dangerous 

that individuals fleeing persecution 

could not take refuge anywhere in the 

country. Cf. Cece, 733 F.3d at 679 

(Easterbrook, dissenting) (‘‘Crime may 

be rampant in Albania, but it is common 

in the United States too. People are 

forced into prostitution in Chicago. . . . 

Must Canada grant asylum to young 

women who fear prostitution in the 

United States, or who dread the risk of 

violence in or near public-housing 

projects?’’). For instance, per the United 

Nations Office on Drugs and Crime 

Chart on Victim of Intentional 

Homicide, the murder rate in Mexico of 

29.1/100,000 in 2018, see United 

Nations Office on Drugs and Crime, 

Mexico, Victims of Intentional 

Homicide, 1990–2018, https:// 

dataunodc.un.org/content/data/ 

homicide/homicide-rate, was lower than 

that in American cities such as St. 

Louis, Baltimore, Detroit, New Orleans 

and Baton Rouge. See, e.g., Missouri, 

FBI: UCR (2018); Maryland, FBI: UCR 

(2018); Michigan, FBI: UCR (2018); 

Louisiana, FBI: UCR (2018), https:// 

ucr.fbi.gov/crime-in-the-u.s/2018/crimein-the-u.s.-2018/topic-pages/offensesknown-to-law-enforcement (Table 8). 

The murder rate in Baltimore, America’s 

deadliest big city, is twice that of 

Mexico. Sean Kennedy, ‘The Wire’ is 


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Finished, but Baltimore Still Bleeds, 

Wall St. J. (Feb. 7, 2020), https:// 

www.wsj.com/articles/the-wire-isfinished-but-baltimore-still-bleeds11581119104. In short, although the 

Departments acknowledge commenters’ 

concerns, they are supported by little 

evidence, do not explain why their 

concerns do not also apply to the United 

States, and are ultimately outweighed 

by the overall need to ensure 

appropriate and consistent 

consideration of probative discretionary 

factors that the rule provides. 

Furthermore, this factor does not 

conflict with sections 208(a)(2)(A) and 

208(b)(2)(A)(vi) of the Act, 8 U.S.C. 

1158(a)(2)(A), (b)(2)(A)(vi), as one 

commenter alleged. Those provisions 

pose bars to asylum eligibility, but this 

factor merely guides adjudicators’ 

discretion to grant or deny asylum to 

otherwise eligible applicants. Generally, 

the safe third country provision, INA 

208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A), bars 

an alien from applying for asylum if the 

Attorney General determines that the 

alien could be removed to a country in 

which the alien’s life or freedom would 

not be threatened and where the alien 

has access to a process for determining 

asylum claims or equivalent protection. 

The firm resettlement provision, INA 

208(b)(2)(A)(vi), 8 U.S.C. 

1158(b)(2)(a)(vi), bars asylum eligibility 

for an alien who firmly resettled in 

another country before arriving in the 

United States. 

In contrast to those two provisions, 

this factor—regarding whether an alien 

failed to apply for protection from 

persecution or torture in at least one 

country outside the alien’s country of 

citizenship, nationality, or last lawful 

habitual residence through which the 

alien transited before entering the 

United States—is considered by an 

adjudicator in making a discretionary 

determination on the alien’s asylum 

application. Whether an application 

warrants a favorable exercise of 

discretion is distinct from whether an 

alien is barred altogether from applying 

for asylum, as is the case with the safe 

third country provision, or from 

establishing eligibility for asylum, as is 

the case with the firm resettlement 

provision. To the extent that the 

commenter’s concerns about the safety 

of a third country and availability of 

asylum procedures in that third country 

specifically refer to the safe third 

country provision in section 

208(a)(2)(A) of the Act, 8 U.S.C. 

1158(a)(2)(A), those are irrelevant to this 

distinct factor considered in 

discretionary determinations. To the 

extent that the commenter suggests 

specifically incorporating those 

considerations—the safety of a third 

country and availability of asylum 

procedures in that third country—into 

this factor, the Departments reiterate 

that an adjudicator may consider, as 

relevant, extraordinary circumstances 

and exceptional or extremely unusual 

hardship that may result if asylum is 

denied. See 85 FR at 36285. 

Regardless, the Attorney General’s 

discretion to deny asylum to otherwise 

eligible applicants is not limited by the 

safe third country or firm resettlement 

bars. East Bay Sanctuary and O.A. both 

presented the question whether the 

eligibility bar there conflicted with the 

statute’s other eligibility bars, because 

the Attorney General’s authority to ‘‘by 

regulation establish additional 

limitations and conditions . . . under 

which an alien shall be ineligible for 

asylum’’ must be ‘‘consistent with this 

section.’’ INA 208(b)(2)(C), 8 U.S.C. 

1108(b)(2)(C). Here, by contrast, the 

Attorney General would be acting under 

his authority under INA 208(b)(1)(A), 

which includes no similar ‘‘consistent 

with’’ requirement. Simply, the 

Secretary of Homeland Security or the 

Attorney General ‘‘may’’ deny asylum in 

their discretion. Id.; see E. Bay 

Sanctuary Covenant, 964 F.3d at 849 

(‘‘Unlike the broad discretion to deny 

asylum to aliens who are eligible for 

asylum, the discretion to prescribe 

criteria for eligibility is constrained by 

§ 1158(b)(2)(C), which allows the 

Attorney General to ‘establish additional 

limitations and conditions . . . under 

which an alien shall be ineligible for 

asylum’ only so long as those 

limitations and conditions are 

‘consistent with’ § 1158.’’). 

4.7.3. Use of Fraudulent Documents To 

Enter the United States 

Comment: Commenters expressed 

several general concerns regarding the 

regulatory provisions on fraudulent 

documents. First, commenters argued 

that the provisions would result in the 

denial of most asylum applications. 

Second, commenters argued that it is 

sometimes impossible for asylum 

seekers to obtain valid documents and 

that in some instances pursuing such 

documents could put them in greater 

danger. Third, commenters asserted that 

it is particularly difficult for women to 

obtain valid travel documents in some 

countries because they need to first 

obtain the approval of a male relative. 

Fourth, commenters asserted that the 

NPRM lacked a valid rationale as to why 

those travelling through multiple 

countries would be punished under the 

proposed rule and those who came 

directly to the United States from a 

contiguous country or a direct flight 

would be excused. Finally, one 

commenter argued that the proposed 

provisions are ultra vires because ‘‘the 

law at INA 208 and 209 provide for 

specific waivers of the use of 

[fraudulent documents].’’ 

Commenters argued that the NPRM’s 

assertion that the use of fraudulent 

documents makes enforcement of 

immigration laws difficult and requires 

significant resources is not supported by 

evidence and is false. One commenter 

noted that under section 208(d)(5)(A)(i) 

of the Act (8 U.S.C. 1158(d)(5)(A)(i)) an 

individual cannot be granted asylum 

until he or she has completed a 

background check and his or her 

identity ‘‘has been checked against all 

appropriate records or databases.’’ The 

commenter noted that the statute’s 

requirements are applicable to every 

person seeking asylum regardless of 

whether fraudulent documents were 

used. Thus, the commenter argued, 

making the use of fraudulent documents 

a significant adverse factor would not 

reduce the amount of resources needed 

to adjudicate asylum cases. 

One commenter argued that the 

proposed fraudulent document 

provisions are contrary to congressional 

intent. Specifically, the commenter 

noted that on May 1, 1996, the Senate 

debated an immigration bill that would 

have summarily deported, among 

others, asylum seekers who used false 

documents to enter the United States. 

The commenter noted that Senator 

Patrick Leahy introduced an 

amendment to the bill that would 

remove the use of ‘‘summary exclusion 

procedures for asylum applicants.’’ The 

commenter quoted some of Senator 

Leahy’s remarks in support of the 

amendment, in which he noted that 

people fleeing persecution will probably 

get fraudulent passports. The 

commenter noted there was bipartisan 

support of the amendment. 

Commenters asserted that Federal 

courts have recognized that false 

documents may be needed to flee 

persecution. Citing Gulla v. Gonzales, 

498 F.3d 911 (9th Cir. 2007), one 

commenter noted that Mr. Gulla, an 

Iraqi asylum seeker, used forged 

passports to flee government 

persecution on account of his religion 

and that the court concluded that 

reasoned use of false documentation in 

that case supported Mr. Gulla’s asylum 

claim rather than detracted from it. 

One commenter argued that the 

NPRM’s rationale for the fraudulent 

document provisions distorted the BIA’s 

reasoning in Matter of Pula. 

Specifically, the commenter argued that 

even though the BIA delineated a 

difference between the use of fraudulent 


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documents to escape persecution and 

falsifying a United States passport to 

assume the identity of a United States 

citizen, the BIA noted that an 

adjudicator would still be required to 

consider the totality of the 

circumstances in both cases. 

Accordingly, the commenter argued that 

the case does not provide justification 

for making the use of a fraudulent 

document a significantly adverse factor. 

Response: As an initial point, 

commenters failed to explain why an 

alien genuinely seeking asylum would 

need to use false documents to enter the 

United States in the first instance, as 

distinguished from using false 

documents only to leave the alien’s 

country of nationality. An alien need 

not necessarily have entered the United 

States to apply for asylum; rather, an 

alien ‘‘arriv[ing] in the United States’’ 

may apply for asylum. INA 208(a)(1), 8 

U.S.C. 1158(a)(1). Thus, an alien may 

seek asylum at a port of entry without 

using or attempting to use any 

documents whatsoever. Moreover, large 

numbers of aliens enter the United 

States without presenting any 

documents at all, including those who 

subsequently seek asylum after turning 

themselves in or are otherwise 

apprehended by DHS. See INA 

212(a)(6)(A), 8 U.S.C. 1182(a)(6)(A) 

(rendering inadmissible an alien who 

enters the United States without being 

admitted or paroled); see also Perla 

Trevizo, How Do You ‘Secure’ the 

Border When Most Migrants Are Just 

Turning Themselves In?, Tuscon.com 

(Dec. 15, 2018), https://tucson.com/ 

news/state-and-regional/how-do-yousecure-the-border-when-most-migrantsare-just-turning-themselves-in/article_

deed8d48-fa50-11e8-837c0b4b3be5a42a.html (noting that ‘‘large 

groups’’ of aliens simply ‘‘cross illegally 

to turn themselves in,’’ with no mention 

of any entry documents, false or 

otherwise). The use of fraudulent 

documents undermines the integrity of 

the immigration system and is 

unnecessary for an alien to apply for 

asylum. In other words, because neither 

fraudulent documents nor even entry 

into the United States are requirements 

to make an asylum application, the use 

of such documents to enter or attempt 

to enter the United States strongly 

suggests that the motive of an alien 

using such documents is to enter the 

United States for reasons other than a 

genuine fear of persecution or a need for 

protection. Consequently, the 

Departments find it reasonable to 

consider that factor as a significantly 

adverse discretionary one for purposes 

of adjudicating an asylum application, 

and the commenters did not 

persuasively explain why that should 

not be the case. 

Even if entry documents were a 

prerequisite to the ability to apply for 

asylum, the Departments nevertheless 

would find that this factor would deter 

the use of false documents, which create 

burdensome administrative costs in 

filtering valid from invalid 

documentation and dissipate human 

resources that could be used to ensure 

that meritorious claims are addressed 

efficiently. Those benefits, in the 

Departments’ view, would also 

ultimately outweigh any costs 

associated with the denial of asylum 

applications due to the use of such 

documents. 

Further, the Departments disagree that 

this factor would result in denial of 

most applications. Regardless of what 

documents aliens may use to depart 

their countries of nationality, there is no 

evidence that most asylum applicants 

use false documents to enter the United 

States; rather, most aliens seeking 

asylum either appear at a port of entry 

and request asylum without seeking to 

enter with any particular documents or 

enter the United States without 

inspection, i.e., without presenting any 

documents at all. 

Commenters’ concerns are also 

speculative, and the Departments 

reiterate that this factor is one of many 

factors considered under the 

adjudicator’s discretionary analysis— 

not a bar to asylum. 

85 FR at 36283 (‘‘[T]he adjudicator 

should also consider any other relevant 

facts and circumstances to determine 

whether the applicant merits asylum as 

a matter of discretion.’’). Further, an 

alien may introduce relevant evidence 

of extraordinary circumstances, 

including challenges described by the 

commenters, for the adjudicator to 

consider. See 85 FR at 36283. The 

Departments also emphasize that an 

alien’s use of fraudulent documents to 

enter the United States is a ground that 

renders the alien inadmissible. INA 

212(a)(6)(C), 8 U.S.C. 1182(a)(6)(C). This 

clear, negative consequence underscores 

congressional disapproval of the use of 

fraudulent documents to enter the 

United States. 

In the NPRM, the Departments 

explained why this factor considers use 

of fraudulent documents for aliens 

traveling through more than one country 

but not aliens arriving from a 

contiguous country. 85 FR at 36283 

n.35. For aliens arriving from a 

contiguous country, an alien may 

simply be carrying the documents he or 

she used to depart that country, 

particularly in situations in which the 

exit control for the contiguous country 

is located in close physical proximity to 

the port of entry into the United States 

or the embarkation point for a trip by air 

or sea to the United States; thus the 

Departments will not consider this a 

significant adverse factor for such 

aliens. As further explained in the 

NPRM, the rule aligns with Lin v. 

Gonzales, 445 F.3d 127, 133 (2d Cir. 

2006), and Matter of Pula, 19 I&N Dec. 

at 474, cases that draw a distinction 

between presentation of a fraudulent 

document to an immigration court and 

the use of a fraudulent document to 

escape immediate danger. 85 FR at 

36283 n.35. To the extent other BIA 

cases reject such a distinction, the rule 

supersedes conflicting case law. 

Accordingly, aliens are not ‘‘punished,’’ 

as commenters alleged, if they travel 

through more than one country. Rather, 

the line drawn in Lin and Pula supports 

differential treatment. If an alien arrives 

directly (such as by air), there is an 

innocuous explanation for his carrying 

of fraudulent documents: He still has 

them because he used them to escape 

immediate danger. But if an alien travels 

through more than one such country, 

that justification for carrying fraudulent 

documents—escaping persecution— 

becomes far more attenuated. As 

explained elsewhere in the NPRM and 

this final rule, the Departments believe 

that if aliens who travel through more 

than one country, subject to some 

exceptions, are escaping persecution, 

they have an opportunity to seek 

protection in any of the countries 

through which they transit en route to 

the United States. If aliens arriving from 

a contiguous country are escaping 

persecution, the first place to seek 

protection would be the United States, 

and so the Departments will not 

consider such aliens’ use of fraudulent 

documents in pursuit of protection as a 

significant adverse factor. 

Contrary to commenters’ assertions, 

section 208 of the Act, 8 U.S.C. 1158, 

does not provide a waiver for the use of 

fraudulent documents to enter the 

United States, and section 209 of the 

Act, 8 U.S.C. 1159, only waives a 

ground of inadmissibility related to the 

use of fraudulent documents, INA 

212(a)(6)(C)(i), 8 U.S.C. 1182(a)(6)(C)(i), 

in conjunction with an application for 

adjustment of status for an alien who 

has already been granted asylum. 

Consequently, neither provision applies 

to the rule, which addresses solely 

discretionary determinations in 

connection with an asylum application. 

Moreover, the potential availability of a 

waiver of a ground of inadmissibility, 

which is itself discretionary, for an alien 


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who has already been granted asylum 

and is seeking lawful permanent 

resident status does not suggest that the 

basis for the ground of inadmissibility is 

not also a relevant discretionary 

consideration in the first instance. 

Because this factor would discourage 

use of fraudulent documents and 

streamline the discretionary analysis 

regarding the use of fraudulent 

documents, the Departments believe the 

factor would reduce the overall time 

expended to address the issue of 

fraudulent documents on a systemwide 

basis because fewer aliens would use 

fraudulent documents and adjudicators 

would consider their use more 

consistently. Although the use of 

fraudulent documents to enter the 

United States is difficult to track in 

general and the Departments do not 

track the number of asylum applicants 

who present such documents, the 

Departments nevertheless expect less 

time to be expended overall. To the 

extent that this provision deters the use 

of fraudulent documents, the provision 

will conserve enforcement resources 

that may otherwise be spent ferreting 

out fraud and will support the overall 

integrity of the immigration systems and 

ensure that benefits are not 

inappropriately granted. The 

Departments find those benefits 

outweigh the various concerns raised by 

commenters. 

The Departments follow applicable 

law and regulations. If the proposed 

amendments cited by commenters were 

not included in the version of the bill 

that became law, then the Departments 

do not follow or consider legislative 

history regarding such amendments. See 

Park ‘N Fly, Inc. v. Dollar Park and Fly, 

Inc., 469 U.S. 189, 194 (1985) 

(‘‘Statutory construction must begin 

with the language employed by 

Congress and the assumption that the 

ordinary meaning of that language 

accurately expresses the legislative 

purpose.’’). 

The Departments again note the 

NPRM, which explains how the rule 

interacts with case law regarding this 

factor. 85 FR at 36283 n.35. Further, this 

rule supersedes previous regulations 

that case law may have interpreted in 

reaching decisions prior to 

promulgation of the rule at hand. To the 

extent that other circuits have disagreed 

with the Departments’ reasonable 

interpretation, the Departments’ 

proposed rule would warrant reevaluation in appropriate cases under 

well-established principles. See Brand 

X, 545 U.S. at 982. 

The rule requires adjudicators to 

consider this factor, like all the factors 

outlined in the NPRM, in light of all 

relevant factors. See 85 FR at 36283, 

36285. In this regard, the rule aligns 

with the approach in Matter of Pula, 

contrary to the commenters’ assertions. 

The Departments note, however, that 

the rule also supersedes Matter of Pula 

in some regards, as explicitly provided 

in the NPRM. 85 FR at 36285. 

4.7.4. Spent More Than 14 Days in Any 

One Country 

Comment: Commenters expressed 

general concerns with the proposed 

regulation’s introduction of a bar that 

would make any person who spent more 

than 14 days in any country en route to 

the United States ineligible for asylum. 

Specifically, commenters asserted the 

new bar is cruel and arbitrary and 

capricious, and that it is designed to 

make most aliens who enter from the 

southern border ineligible for asylum. 

Commenters asserted that the NPRM’s 

reasoning as to the necessity for a 14- 

day bar is inadequate and that the 

policy would be contrary to the concept 

of firm resettlement. One commenter 

argued that the NPRM failed to explain 

how a 14-day stay in a country equates 

to an offer of firm resettlement, and 

another asserted that the length of stay 

in a country is irrelevant to the merits 

of an LGBTQ asylum seeker’s claim. 

Additionally, one commenter stated that 

being given an application to seek 

protection in another country does not 

equate to an offer of firm resettlement. 

The same commenter argued the 

NPRM’s use of a single Federal case to 

support the proposed provision—Yang 

v. INS, 79 F.3d 932 (9th Cir. 1996)—is 

not persuasive. The commenter stated 

that in Yang, refugees from Laos who 

spent 14 years in France with refugee 

status were denied asylum in the United 

States. The commenter asserted that 

using this case to support the position 

that denying asylum applications for 

anyone who spent 14 days in another 

country with no kind of lawful status is 

‘‘irrational.’’ 

Commenters argued that the proposed 

14-day bar would punish those who 

seek to comply with U.S. policies. 

Specifically, commenters noted that 

under the CBP ‘‘metering’’ policy, 

asylum seekers sometimes are required 

to wait more than 14 days (one 

commenter stated that the wait could 

span months) in order to make their 

asylum claims. Commenters also 

asserted that asylum seekers subject to 

MPP are often required to spend more 

than 14 days (up to weeks or months) 

in Mexico. Commenters expressed 

concern that asylum seekers subject to 

metering and MPP would be barred 

from asylum under the proposed rule. 

One commenter similarly argued that 

the United States has used COVID–19 as 

a ‘‘pretext’’ to close the Mexican border 

to all asylum seekers. The commenter 

implied that these policies could 

likewise cause an individual to be in a 

third country for longer than 14 days. 

Commenters asserted that many 

asylum seekers travel to the United 

States by foot, bus, or train, which, 

commenters assert, often takes longer 

than 14 days. Commenters asserted that 

the length of an asylum seeker’s journey 

is often extended due to the need to 

avoid detection from government 

officials and non-government actors 

trying to return the asylum seeker back 

to the country from which the 

individual is fleeing. Additionally, 

commenters noted that there could be 

other reasons that an asylum seeker’s 

journey could be extended beyond 14 

days, including robbery, kidnap, or 

rape. One commenter asserted that those 

who travel through southern Mexico 

face additional hurdles, asserting that 

the Mexican government refuses to issue 

travel documents and that the 

government threatens to fine 

transportation companies that sell 

tickets to those without travel 

documents. 

One commenter expressed concern 

that the proposed regulation did not 

include an exception for children and 

other discrete populations, who, the 

commenter stated, might not have 

control over the amount of time spent in 

third countries en route to the United 

States. 

Response: This factor is not a bar to 

asylum, as commenters alleged. This 

factor is considered, along with all the 

other factors outlined in the rule, as part 

of an adjudicator’s discretionary 

analysis. Further, the NPRM clearly 

recognized that ‘‘individual 

circumstances of an alien’s presence in 

a third country or transit to the United 

States may not necessarily warrant 

adverse discretionary consideration in 

all instances,’’ and subsequently 

provided various exceptions. 85 FR at 

36284. 

Consideration of this factor is not 

cruel or arbitrary and capricious. This 

factor is considered adverse only when 

an alien spends more than 14 days in a 

country that permits applications for 

asylum, refugee status, or similar 

protections. The Departments believe 

that an alien should apply for protection 

at the first available opportunity, but the 

Departments would not hold an alien 

responsible for failure to apply for 

protection that does not, in fact, exist. 

Asylum is a form of relief intended for 

aliens who legitimately need urgent 

protection. If any alien stays in one 

country for more than 14 days and that 


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country permits applications for various 

forms of protection but the alien fails to 

apply for such protections, then the 

Departments consider that failure to be 

indicative of a lack of urgency on the 

alien’s part. This factor thus screens for 

urgency, an important consideration in 

light of the growing number of asylum 

applications the Departments receive: 

The Departments have seen record 

numbers of asylum applications, along 

with record numbers of asylum denials, 

in the past decade. For comparison, in 

FY 2008, 42,836 asylum applications 

were filed while, in FY 2019, 213,798 

asylum applications were filed. See 

EOIR, Adjudication Statistics: Total 

Asylum Applications (Oct. 13, 2020), 

https://www.justice.gov/eoir/page/file/ 

1106366/download. These record 

numbers have slowed the adjudication 

process for all asylum seekers, including 

those who urgently need protection. 

Thus, the Departments expect that 

considering this factor will assist the 

efficient adjudication of asylum claims. 

The NPRM does not equate either a 

14-day stay in one country or the offer 

to seek protection, on their own, as firm 

resettlement, contrary to commenters’ 

assertions. For amendments to the firm 

resettlement bar, commenters should 

refer to Section II.C.7 of the preamble to 

the NPRM, 85 FR at 36285–86, and 

Section II.C.4.8 of the preamble to this 

final rule, revised at 8 CFR 208.15, 

1208.15. 

Contrary to commenters’ allegations, 

the proposed treatment of an alien who 

spends more than 14 days in a country 

en route to the United States as a 

significant adverse factor does not 

conflict with firm resettlement. First, an 

alien found to have firmly resettled is 

barred from asylum relief. INA 

208(b)(2)(A)(vi), 8 U.S.C. 

1158(b)(2)(A)(vi). The provision at hand, 

however, is not a mandatory bar but a 

discretionary factor to be considered by 

the adjudicator, subject to exceptions in 

cases where the alien’s application for 

protection in the third country was 

denied, the alien is a victim of a severe 

form of human trafficking defined in 8 

CFR 214.11, or the alien was present in 

or transited through only countries that 

were not parties to the Refugee 

Convention, Refugee Protocol, or CAT at 

the relevant time. 8 CFR 

208.13(d)(2)(i)(A)(1)–(3), (d)(2)(i)(B)(1)– 

(3); see also 85 FR at 36824. Second, as 

proposed by the NPRM, the firm 

resettlement bar would apply ‘‘when the 

evidence of record indicates’’ that it 

would apply. 85 FR at 36286. Then, the 

alien bears the burden of proof to 

demonstrate that the bar does not apply, 

consistent with 8 CFR 1240.8(d). See id. 

Accordingly, the discretionary factor of 

whether an alien spent more than 14 

days in any one country that provides 

applications for refugee, asylee, or other 

protections prior to entering or arriving 

in the United States is different from but 

related to the firm resettlement bar: If an 

alien successfully demonstrates that the 

firm resettlement bar does not apply, 

then an adjudicator would consider that 

factor as part of a discretionary analysis 

regarding the asylum application. 

The Departments disagree that the 

reference to Yang, 79 F.3d at 935–39, is 

irrational. That case clearly 

demonstrates why the Departments are 

promulgating this factor for 

consideration. As stated in the NPRM, 

that case ‘‘uph[eld] a discretionary firm 

resettlement bar, and reject[ed] the 

premise that such evaluation is arbitrary 

and capricious or that it prevents 

adjudicators from exercising 

discretion.’’ 85 FR at 36284 (citing 

Yang, 79 F.3d at 935–39). Such 

reasoning is relevant to all cases in 

which this factor is considered, whether 

the alien spent 14 days or 14 years in 

another country. Further, contrary to the 

commenters’ assertion, even if the alien 

spent 14 days or more in another 

country, this factor is not a bar to 

asylum; rather, it is considered in light 

of all other relevant factors and various 

exceptions. See id. 

For aliens subject to MPP, those aliens 

who have entered the United States and 

were processed under MPP are no 

longer en route to the United States and 

have already applied for admission to 

the United States, whereas, this factor 

considers whether an alien stayed for 

more than 14 days in one country 

‘‘[i]mmediately prior to his arrival in the 

United States or en route to the United 

States.’’ 8 CFR 208.13(d)(2)(i)(A), 

1208.13(d)(2)(i)(A). If an alien claims 

that he was subject to metering and 

waited more than 14 days in Mexico, he 

or she may introduce such evidence as 

an extraordinary circumstance. 

Moreover, such aliens may apply for 

protection in Mexico; if that application 

is denied, then the factor would not 

apply. In addition, the Departments 

reject any contention that COVID–19 

has been used as a pretext to close the 

southern border. The government has 

taken steps at the Canadian and 

Mexican border to curb the introduction 

and spread of the virus, which 

continues to affect the United States and 

the entire world. See DHS, Fact Sheet: 

DHS Measures on the Border to Limit 

the Further Spread of Coronavirus 

(updated Oct. 22, 2020), https:// 

www.dhs.gov/news/2020/06/16/factsheet-dhs-measures-border-limitfurther-spread-coronavirus; Control of 

Communicable Diseases; Foreign 

Quarantine: Suspension of Introduction 

of Persons Into United States From 

Designated Foreign Countries or Places 

for Public Health Purposes, 85 FR 16559 

(Mar. 24, 2020); Security Bars and 

Processing, 85 FR 41201 (July 9, 2020) 

(proposed rule). 

For discrete populations, if 

circumstances exist that extend an 

alien’s stay in one country to surpass 14 

days, an adjudicator will consider such 

circumstances to determine whether 

they constitute extraordinary 

circumstances. Further, an adjudicator 

will evaluate whether such alien falls 

into one of the three exceptions to this 

factor. 

4.7.5. Transits Through More Than One 

Country Between His Country of 

Citizenship, Nationality, or Last 

Habitual Residence and the United 

States 

Comment: Commenters asserted that 

the proposed provision pertaining to 

transit through more than one country 

en route to the United States is arbitrary 

and capricious and contrary to 

congressional intent. They stated that 

the rule would inappropriately 

advantage asylum seekers coming from 

Mexico and Canada. Commenters 

similarly asserted that the proposed rule 

would advantage those coming from 

countries where direct flights to the 

United States are available and those 

who could afford to purchase tickets on 

such flights. They asserted that there 

was no rationale as to why asylum 

seekers travelling by air with one or 

more layovers in another country 

should be treated differently from those 

who took a direct flight. And they 

further expressed concern that the 

proposed factor would be particularly 

onerous on women and LGBTQ asylum 

seekers. 

Commenters averred that the 

proposed factor of transit through more 

than one country conflicts with Federal 

court precedent. Specifically, 

commenters noted that a Federal district 

court invalidated a prior regulation 

concerning a third country transit ban. 

Commenters expressed concern that the 

Departments are trying to implement the 

ban a second time by making it a factor 

in discretionary determinations and 

asserted that the proposed provision 

would likewise be struck down by the 

courts. 

Commenters expressed concern with 

two of the NPRM’s proposed exceptions 

to the proposed third country transit 

factor. First, one commenter contended 

that exempting travel through countries 

that are not party to the 1951 

Convention relating to the Status of 

Refugees, the 1967 Protocol relating to 


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the Status of Refugees, or the 

Convention Against Torture and Other 

Cruel, Inhuman, or Degrading Treatment 

or Punishment is overly narrow. 

Specifically, the commenter argued that 

since 146 countries are party to the 1951 

convention and 147 countries are party 

to the Protocol, the exception would be 

inapplicable to many asylum seekers’ 

journeys. Second, commenters 

expressed concern that the proposed 

exception of applying for asylum in 

countries visited en route to the United 

States is not reasonable. Commenters 

asserted that the asylum systems of 

many nations through which asylum 

seekers commonly travel (such as 

Guatemala, Honduras, and El Salvador) 

are not well developed and that the 

countries are sometimes just as 

dangerous as the ones from which they 

are fleeing. 

Response: The Departments disagree 

that this factor is arbitrary and 

capricious or contrary to congressional 

intent. Although not a bar, this 

discretionary factor is consistent with 

case law regarding firm resettlement and 

safe third countries. See 85 FR at 36284. 

Further, taken together with the 

exceptions, the factor is consistent with 

section 208(a)(2)(A) of the Act, 8 U.S.C. 

1158(a)(2)(A). 

Similar to the aforementioned factors 

that consider whether an alien stayed in 

one country for more than 14 days and 

whether an alien failed to seek 

protection in a country through which 

the alien transited en route to the 

United States, this factor aims to ensure 

that asylum is available for those who 

have an urgent need for protection. The 

Departments generally believe that 

aliens with legitimate asylum claims 

would not forego the opportunity to 

seek protection in countries through 

which they traveled if they had an 

urgent need. However, the Departments 

acknowledge that circumstances may 

exist in which an alien did, in fact, 

travel through more than one country 

and has an urgent need for asylum; 

accordingly, the Departments outlined 

three exceptions to this factor, see 85 FR 

at 36284; 8 CFR 208.13(d)(2)(i)(A)(1)– 

(3), (B)(1)–(3), 1208.13(d)(2)(i)(A)(1)–(3), 

(B)(1)–(3), in addition to the general 

consideration of extraordinary 

circumstances or exceptional and 

extremely unusual hardship that may 

result if the application is denied. See 

85 FR at 36283–84. For these reasons, 

the Departments did not promulgate this 

factor in an arbitrary and capricious 

manner. 

Relatedly, this factor does not 

improperly advantage asylum seekers 

from Canada, Mexico, or countries with 

direct flights to the United States. As 

background, asylum and refugee 

provisions were incorporated into U.S. 

law based on the United States’ 

international obligations, in part, from 

the 1951 Convention relating to the 

Status of Refugees and 1967 Protocol. 

Signatories to those agreements 

comprise an ‘‘international regime of 

refugee protection.’’ UNHCR, 

Implementation of the 1951 Convention 

and the 1967 Protocol Relating to the 

Status of Refugees: II. Background, ¶ 3, 

EC/SCP/54 (July 7, 1989), https:// 

www.unhcr.org/en-us/excom/scip/ 

3ae68cbe4/implementation-1951- 

convention-1967-protocol-relatingstatus-refugees.html. To that end, the 

Departments believe this system 

operates to ensure aliens may apply for 

protection as soon as possible, not to 

ensure that aliens receive protection 

specifically from the United States. 

Congress has authorized the 

Departments to bar an alien from 

applying for asylum in the United States 

if the alien may be removed to a third 

country that affords a full and fair 

process for determining asylum claims 

or equivalent temporary protections, 

pursuant to a bilateral or multilateral 

agreement. INA 208(a)(2)(A), 8 U.S.C. 

1158(a)(2)(A). The United States shares 

the burden of processing asylum claims 

with other countries pursuant to various 

agreements. See, e.g., Agreement 

Between the Government of Canada and 

the Government of the United States of 

America for Cooperation in the 

Examination of Refugee Status Claims 

from Nationals of Third Countries, Dec. 

5, 2002, https://www.canada.ca/en/ 

immigration-refugees-citizenship/ 

corporate/mandate/policiesoperational-instructions-agreements/ 

agreements/safe-third-countryagreement/final-text.html; DHS, Fact 

Sheet: DHS Agreements with 

Guatemala, Honduras, and El Salvador, 

https://www.dhs.gov/sites/default/files/ 

publications/19_1028_opa_factsheetnorthern-central-america-agreements_

v2.pdf. Thus, asylum seekers from 

countries in closer proximity to the 

United States or with direct flights to 

the United States are not ‘‘advantaged,’’ 

and asylum seekers from countries that 

are farther away from the United States 

or without direct flights to the United 

States are not ‘‘punished.’’ If anything, 

aliens from countries farther away may 

have more opportunities to seek 

protection than those whose closest—or 

potentially only—option is the United 

States. In an ‘‘international regime of 

refugee protection,’’ it makes sense that 

aliens closer to the United States may 

obtain asylum more easily in the United 

States, just as aliens closer to other 

countries may obtain asylum more 

easily in those countries. Including this 

factor will encourage aliens to seek 

asylum in countries that are closest to 

them and encourage all treaty 

signatories to do their fair share in 

providing safe harbor for refugees. 

For discussion of this rule’s effect on 

women and LGBTQ asylum seekers, see 

Section II.C.1.3 of this preamble. The 

Departments note here, however, that 

the rule applies to all asylum seekers 

regardless of gender or sexual 

orientation. 

Moreover, this factor is not an 

eligibility bar for asylum; it is merely 

one factor to be considered as relevant, 

along with various other factors 

outlined in the rule. The previous 

rulemaking cited by commenters, 

Asylum Eligibility and Procedural 

Modifications, 84 FR 33829 (July 16, 

2019), barred asylum relief to aliens 

who failed to apply for protection in a 

third country through which they 

traveled en route to the United States. 

While that rule encompasses similar 

considerations, it is fundamentally 

different because the 2019 rule 

constituted a mandatory bar to asylum. 

This rule considers this factor as part of 

an adjudicator’s discretionary analysis. 

Adverse judicial treatment of the 2019 

rule does not directly apply to this 

rulemaking, which the Departments 

propose to issue under a different 

statutory authority. See E. Bay 

Sanctuary Covenant, 964 F.3d at 849 

(distinguishing ‘‘the broad discretion to 

deny asylum to aliens who are eligible 

for asylum’’ from the narrower 

‘‘discretion to prescribe criteria for 

eligibility’’). 

The Departments disagree with 

commenters that the exception for 

aliens who were present in or transited 

through countries that were, at the 

relevant time, not parties to the Refugee 

Convention, Refugee Protocol, or CAT is 

too narrow. That exception is fashioned 

to ensure that aliens have an 

opportunity to apply for protection— 

whether that be in the United States or 

in a country through which they transit. 

If a country does not offer such 

protection, then an alien would not be 

held to that standard and could avail 

themselves of the third exception. 

Regarding comments that the exceptions 

to this factor are insufficient due to 

danger in and underdevelopment of 

most countries through which aliens 

travel en route to the United States, the 

Departments note that, by becoming 

party to those treaties, the third 

countries through which an alien may 

have transited are obligated by treaty to 

provide protection from removal to 

individuals who are likely to face 


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persecution on account of a protected 

ground or torture. See also Section 

III.C.4.7.2 of this preamble, supra 

(discussing the availability of protection 

in countries outside the United States 

through which an alien may transit). 

Accordingly, the Departments believe 

the rule is consistent with section 208 

of the Act (8 U.S.C. 1158). The 

Departments note that regardless of 

whether an alien claims any of the 

exceptions, an alien may still assert that 

denial of their asylum application 

would result in extraordinary 

circumstances or produce exceptional 

and extremely unusual hardship. 

4.7.6. Subject to § 1208.13(c) But for the 

Reversal, Vacatur, Expungement, or 

Modification of a Conviction or 

Sentence 

Comment: Commenters expressed 

general concerns with the provision of 

the proposed regulation relating to 

reversed or vacated criminal 

convictions, asserting that it would lead 

to many asylum applications being 

inappropriately denied. 

One commenter asserted that the 

proposed regulation would 

inappropriately create a categorical 

approach to considering vacated 

convictions in discretionary 

determinations. The commenter 

asserted that adjudicators should 

consider vacated convictions on a caseby-case basis and argued that a vacated 

conviction could provide positive 

equities that should be considered. 

Commenters asserted that the 

proposed regulation is inconsistent with 

due process. Specifically, one 

commenter asserted that the proposed 

regulation would bar from asylum relief 

individuals who had criminal sentences 

that were vacated, reversed, expunged, 

or modified unless there was an express 

finding that the person is not guilty. The 

commenter asserted that there could be 

instances where a prosecutor decides to 

decline to pursue a case further after 

learning of an underlying error in the 

criminal proceedings without first 

making a determination as to the 

defendant’s innocence or guilt. The 

commenter asserted that the proposed 

regulation could cause some individuals 

in this position with otherwise 

meritorious claims to be barred from 

asylum. The commenter cited Nelson v. 

Colorado, 137 S. Ct. 1249, 1255–56 

(2017), and argued that such an outcome 

would violate due process principles. 

One commenter expressed concern 

that the proposed regulation is 

inconsistent with the INA and the BIA 

decision, Matter of Devison, 22 I&N Dec. 

1362 (BIA 2000). The commenter 

asserted that the Act and precedent 

establish that juvenile charges and 

convictions are not criminal convictions 

and thus should not be considered 

under the proposed regulation. 

Similarly, the commenter cited research 

suggesting that a child’s comprehension 

of the consequences for engaging in 

criminal activity varies based on age. 

Accordingly, the commenter asserted, 

individuals should not be subjected to 

excessive punishments for actions that 

they took when they were young. 

Response: As an initial point, the 

Departments note that this provision is 

fully consistent with long-standing case 

law allowing adjudicators to 

appropriately consider as an adverse 

discretionary factor ‘‘criminal conduct 

which has not culminated in a final 

conviction for purposes of the Act.’’ 

Matter of Thomas, 21 I&N Dec. 20, 23– 

24 (BIA 1995) (collecting cases); cf. 

Villanueva-Franco v. INS, 802 F.2d 327, 

329–30 (9th Cir. 1986) (finding that the 

Board could consider alien’s extensive 

criminal record, which included an 

expunged felony conviction for 

assaulting a police officer, in weighing 

whether voluntary departure was 

merited as a matter of discretion); 

Parcham v. INS, 769 F.2d 1001, 1005 

(4th Cir. 1985) (‘‘Evidence of an alien’s 

conduct, without a conviction, may be 

considered in denying the discretionary 

relief of voluntary departure.’’); Matter 

of Seda, 17 I&N Dec. 550, 554 (BIA 

1980) (noting that ‘‘a plea of guilty [that] 

results in something less than a 

conviction’’ is ‘‘a significant adverse 

factor to be considered in whether a 

favorable exercise of discretion is 

warranted’’ for voluntary departure), 

overruled on other grounds by Matter of 

Ozkok, 19 I&N Dec. 546, 552 (BIA 1988). 

Commenters did not persuasively 

explain why the Departments should 

abandon this long-standing principle in 

considering all conduct in making a 

discretionary determination, especially 

conduct that initially led to a criminal 

conviction. 

Additionally, commenters’ concerns 

that this factor will result in improper 

denials of asylum applications are 

speculative. This factor is not a bar to 

asylum. Compare Procedures for 

Asylum and Bars to Asylum Eligibility, 

84 FR 69640, 69654–56 (Dec. 19, 2019) 

(proposing additional bars to asylum 

eligibility based on criminal convictions 

and clarifying when an order vacating or 

modifying a conviction or sentence will 

preclude the application of the 

proposed bars). Considered relative to 

all the other factors proposed in NPRM, 

outcomes will vary on a case-by-case 

basis, given consideration of 

extraordinary circumstances or 

exceptional and unusual hardship 

resulting from a denial of asylum. 85 FR 

at 36283. 

The Departments disagree that this 

factor creates a ‘‘categorical approach,’’ 

as commenters alleged. A categorical 

approach often applies when 

determining whether a particular 

conviction qualifies as an offense that 

would render the alien ineligible for 

discretionary relief. 8 CFR 208.13(c), 

1208.13(c); see Kawashima v. Holder, 

565 U.S. 478, 483 (2012). This factor 

merely counsels adjudicators that if a 

conviction qualifies, it should be 

considered an adverse factor 

notwithstanding any subsequent vacatur 

or reversal of that sentence (unless the 

alien was found not guilty). But this rule 

takes no position on what approach 

should apply—categorical or 

circumstance-specific—in determining 

whether a conviction would so qualify. 

Moreover, this factor does not affect 

existing case law allowing the 

consideration of criminal activity as a 

discretionary factor, even when that 

activity has not resulted in a conviction. 

The rule, as proposed and in this final 

iteration, however, considers this factor 

as relevant to each case, along with 

consideration of extraordinary 

circumstances or exceptional and 

extremely unusual hardship that may 

befall an alien if asylum is denied. In 

this way, the rule is consistent with the 

commenter’s suggestion that criminal 

activity must be considered on a caseby-case basis. 

The rule does not violate due process. 

Consistent with long-standing case law, 

the rule requires adjudicators to 

consider, as part of the discretionary 

analysis, convictions that remain valid 

for immigration purposes. See 85 FR at 

36284. Due process requires that an 

alien receive a full and fair hearing that 

provides a meaningful opportunity to be 

heard. See Kerciku v. INS, 314 F.3d 913, 

917 (7th Cir. 2003). This rule does not 

violate due process because it does not 

deprive aliens of their right to a hearing 

before an immigration judge, 8 CFR 

1240.10, or their right to appeal to the 

BIA, 8 CFR 1003.1(b). 

Moreover, because asylum is a 

discretionary form of relief, aliens have 

no constitutionally protected interest in 

a grant of asylum. See Nativi-Gomez v. 

Ashcroft, 344 F.3d 805, 807–09 (8th Cir. 

2003) (explaining that an alien has no 

expectation that discretionary relief will 

be granted and, consequently, no 

protected liberty interest in such relief 

(citing Ashki v. INS, 233 F.3d 913, 921 

(6th Cir. 2000)). Accordingly, this rule 

presents distinct issues from Nelson, 

137 S. Ct. at 1255–56, cited by a 

commenter. Nelson holds only that a 

state may not continue to deprive a 


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person of his property—there, 

thousands of dollars in costs, fees, and 

restitution—after his conviction has 

been reversed or vacated. The case 

applied the balancing test in Mathews v. 

Eldridge, 424 U.S. 319 (1976), which 

balances the private interest affected, 

the risk of erroneous deprivation of such 

interest through procedures used, and 

the governmental interest at stake. 

Because, unlike the monetary exactions 

at issue in Nelson, the rule affects no 

constitutionally protected liberty or 

property interest, that case and the 

Mathews balancing test do not apply. 

The Departments will continue to 

apply Matter of Devison, 22 I&N Dec. 

1362 (BIA 2000), as relevant; however, 

the commenter misunderstands the 

holding in that case. In that case, as 

referenced by a commenter, the BIA 

held that an adjudication as a ‘‘youthful 

offender’’ constituted a determination of 

juvenile delinquency rather than a 

conviction under section 101(a)(48)(A) 

of the Act, 8 U.S.C. 1101(a)(48)(A). 

Matter of Devison, 22 I&N Dec. at 1366. 

‘‘In its reasoning, the Board drew a 

critical distinction between a finding of 

delinquency, which involves ‘status’ 

rather than guilt or innocence, and 

deferred adjudication or expungement. 

Deferred adjudications constitute 

convictions under the INA while 

findings of delinquency do not.’’ Uritsky 

v. Gonzales, 399 F.3d 728, 730 (6th Cir. 

2005) (describing the BIA’s holding in 

Matter of Devison) (internal citation 

omitted). Accordingly, juvenile 

adjudications of delinquency will 

continue to be evaluated in accordance 

with applicable statutes and regulations. 

But, because Matter of Devison does not 

hold that juvenile convictions cannot 

qualify as criminal convictions under 

the Act, the Departments decline to 

apply it as suggested by the commenter. 

The rule does not change or reinterpret 

the definition or disturb case law 

regarding criminal convictions; in fact, 

the rule codifies long-standing case law 

through promulgation of this factor. See 

85 FR at 36284. To the extent 

commenters expressed disagreement 

with the definition of ‘‘conviction’’ 

under the Act, that issue is outside the 

scope of this rulemaking. 

Finally, to the extent commenters 

queried whether particular types of 

cases with specific facts would 

necessarily be denied, the Departments 

find such queries speculative or 

hypothetical. Moreover, the 

Departments do not generally provide 

advisory opinions on asylum 

applications, especially in a rulemaking. 

Rather, the Departments expect that 

their adjudicators will address each case 

based on its own particular facts and the 

applicable law. 

4.7.7. More Than One Year of Unlawful 

Presence in the United States Prior To 

Filing an Application for Asylum 

Comment: Commenters generally 

expressed concern that consideration of 

unlawful presence in discretionary 

determinations would lead to the denial 

of most asylum applications. One 

commenter expressed concern that the 

proposed provision fails to account for 

practical realities such as official ports 

of entry being ‘‘effectively closed’’ to 

asylum seekers for years and that it 

could take more than a year to recover 

from the trauma that led an individual 

to flee his or her country. 

Commenters asserted that inclusion of 

the proposed unlawful presence factor 

in discretionary determination is ultra 

vires. Specifically, commenters noted 

that section 208(a)(2)(d) of the Act (8 

U.S.C. 1158(a)(2)(d)) provides two 

instances in which an asylum 

application can be filed outside of the 

one-year deadline: (1) Changed 

circumstances that affect eligibility for 

asylum, and (2) extraordinary 

circumstances relating to the delay of 

filing the application within one year. 

Commenters asserted that the proposed 

regulation would frustrate this statutory 

framework because a person who filed 

more than one year after his or her last 

entry into the United States but meets 

one of the above-identified exceptions 

could still see their application denied 

under the proposed rule as a matter of 

discretion. Commenters also noted that 

there could be instances where the 

exceptions would not be applicable 

until after the one-year deadline has 

expired. Commenters stated that 

deadline exceptions are especially 

important for LGBTQ asylum seekers. 

Commenters stated that the process to 

understanding one’s identity as an 

LGBTQ individual can take more than 

one year and requires safety, security, 

and a support system that is often not 

available during flight from their home 

countries. Similarly, commenters 

asserted that it could take over a year to 

detect an HIV infection because of the 

need for ‘‘culturally competent and 

clinically appropriate’’ medical care that 

is often not available to asylum seekers 

outside of the United States. 

Commenters argued that the proposed 

regulation conflicts with congressional 

intent. One commenter detailed the 

legislative history surrounding the oneyear filing deadline. Specifically, the 

commenter noted that the Senate 

version of the bill in which the deadline 

was debated raised the deadline from 30 

days to one year and that an amendment 

to the House version changed the 

wording of one of the exceptions from 

‘‘changed country conditions’’ to 

‘‘personal circumstances’’ in order to 

broaden the exception for applications 

that would be accepted after the 

statutory deadline. The commenter also 

highlighted a floor speech that the 

commenter argued evidenced 

congressional intent to create broad 

exceptions to the one-year deadline in 

order to reduce the chance of arbitrary 

denials. 

One commenter argued that the 

proposed regulation conflicts with 

agency policy. Specifically, the 

commenter argued that in Matter of Y– 

C–, 23 I&N Dec. 286, 287 (BIA 2002), the 

BIA stated that a failure to file within 

the one-year deadline does not result in 

an absolute bar to filing an asylum 

application. The commenter also 

asserted that the proposed regulation is 

in conflict with 8 CFR 208.4(a)(4)–(5) 

and 8 CFR 1208(a)(4)–(5), which, the 

commenter asserted, provide broad 

definitions for the changed and 

extraordinary circumstances exceptions. 

The commenter similarly asserted that 

the proposed regulation is in conflict 

with 8 CFR 208.4(a)(2)(B) and 8 CFR 

1208.4(a)(2)(B), which require 

applicants to establish the exceptions 

‘‘to the satisfaction’’ of the adjudicator. 

The commenter noted that USCIS 

guidance states the standard is one of 

‘‘reasonableness,’’ which, the 

commenter asserted, is lower than that 

of ‘‘clear and convincing evidence.’’ The 

commenter asserted that USCIS’s 

articulation of the standard evidences 

agency acknowledgement of 

congressional intent to have the 

exceptions be broadly available. 

One commenter asserted that the 

proposed regulation is inconsistent with 

the United States’ obligations under the 

1967 Protocol. Specifically, the 

commenter asserted that the UNHCR 

Executive Committee opposed the oneyear filing deadline when it was under 

consideration because it was concerned 

with the impact it would have on the 

ability of the United States to offer 

protection to those fleeing persecution. 

The commenter similarly asserted that 

President Clinton opposed the one-year 

filing deadline out of a concern for it 

being inconsistent with international 

treaty obligations. 

Response: This factor, like the other 

factors, is not a bar to asylum. The 

Departments proposed this factor as one 

of many that an adjudicator must 

consider when determining whether an 

asylum application warrants a favorable 

exercise of discretion. 85 FR at 36283. 

Commenters’ concerns that 

consideration of this factor would result 


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64See supra Section II.C.1.3 for further discussion 

on vulnerable populations. 

65For example, an alien may establish ineffective 

assistance of counsel as an extraordinary 

circumstance to excuse a failure to meet the oneyear asylum application filing deadline. 8 CFR 

208.4(a)(5)(iii), 1208.4(a)(5)(iii). That showing, 

however, simply allows the application to be filed 

and says little about whether the application should 

ultimately be granted as a matter of discretion, 

particularly if there are unrelated adverse factors to 

be considered, such as unpaid tax obligations. 8 

CFR 208.13(d)(2)(i)(E)(2), 1208.13(d)(2)(i)(E)(2). 

in the denial of most asylum 

applications are speculative, untethered 

to the inherent case-by-case nature of 

asylum adjudications, and based on the 

erroneous underlying premise that this 

factor functions as an eligibility bar. 

Moreover, this factor would, of its 

own force, result in the denial of only 

a small number, if any, of asylum 

claims. For aliens who entered the 

United States unlawfully and who 

accrue at least one year of unlawful 

presence, the statutory one-year bar in 

INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B), 

would likely apply independently, 

regardless of this provision. And aliens 

who arrive in the United States lawfully 

and maintain lawful status do not 

accrue unlawful presence and, thus, 

would not be subject to this provision. 

INA 212(a)(9)(B)(ii), 8 U.S.C. 

1182(a)(9)(B)(ii). Even if such aliens fell 

out of status, their previous status may 

demonstrate extraordinary 

circumstances, 8 CFR 208.4(a)(5)(iv), 

1208.4(a)(5)(iv), which would excuse 

the statutory one-year filing deadline for 

a ‘‘reasonable period,’’ and that 

‘‘reasonable period’’ is likely to be less 

than the one year of unlawful presence 

required to trigger this provision. See 

Asylum Procedures, 65 FR 76121, 

76123–24 (Dec. 6, 2000) (‘‘Generally, the 

Department expects an asylum-seeker to 

apply as soon as possible after 

expiration of his or her valid status, and 

failure to do so will result in rejection 

of the asylum application. Clearly, 

waiting six months or longer after 

expiration or termination of status 

would not be considered reasonable.’’). 

Commenters’ concerns also do not 

account for the exceptions to the accrual 

of unlawful presence, INA 

212(a)(9)(B)(iii), 8 U.S.C. 

1182(a)(9)(B)(iii), or for situations in 

which the Attorney General or Secretary 

may grant an asylum application 

notwithstanding this factor. In short, 

commenters’ concerns that this 

provision will result in the denial of 

most asylum application is wholly 

unfounded. 

This factor is consistent with the Act. 

The rule preserves consideration of the 

two statutory provisions, cited by 

commenters, in which aliens may file an 

asylum application outside of the oneyear deadline—changed circumstances 

and extraordinary circumstances. See 85 

FR at 36285. Further, the rule provides 

consideration of whether exceptional 

and extremely unusual hardship may 

befall an alien if asylum was denied. For 

the discrete populations referenced by 

the commenters who file outside of the 

one-year deadline, adjudicators may 

consider those circumstances in 

accordance with the rule.64

Accordingly, the rule does not frustrate 

the statutory framework. 

The Departments disagree that the 

rule conflicts with congressional intent 

and agency policy. First, the 

Departments note that legislative history 

is secondary to the text of the statute 

itself. See Park ‘N Fly, Inc., 469 U.S. at 

194 (‘‘Statutory construction must begin 

with the language employed by 

Congress and the assumption that the 

ordinary meaning of that language 

accurately expresses the legislative 

purpose.’’). The Supreme Court has 

explained the difficulty in examining 

legislative history because, oftentimes, 

both support and opposition may be 

found, thereby ‘‘creat[ing] more 

confusion than clarity.’’ Lamie v. U.S. 

Trustee, 540 U.S. 526, 539 (2004); see 

also Milner v. Dep’t of Navy, 562 U.S. 

562, 572 (2011) (‘‘We will not take the 

opposite tack of allowing ambiguous 

legislative history to muddy clear 

statutory language.’’). The Departments 

read the plain language of the statute 

conferring discretionary authority to the 

Attorney General to adjudicate asylum 

applications in promulgating this 

section of the rule, which guides the 

exercise of such discretion through 

consideration of various factors. 

Accordingly, in regard to this particular 

regulatory provision, the Departments 

rely on the text of the statute rather than 

the legislative history. 

Second, the rule does not conflict 

with agency policy. This factor, as 

previously explained, does not function 

as an absolute bar to asylum; therefore, 

it does not conflict with case law 

holding that extraordinary 

circumstances may excuse untimely 

filing. Moreover, this factor does not 

conflict with current regulations, as 

alleged by a commenter. The rule does 

not change the definitions for changed 

circumstances or extraordinary 

circumstances in 8 CFR 208.4(a)(4)–(5), 

1208.4(a)(4)–(5), and the rule repeatedly 

stated that the adjudicator will consider 

this factor, along with all of the factors, 

as part of the discretionary analysis. 

Thus, it does not offend 8 CFR 

208.4(a)(2)(B), 1208.4(a)(2)(B). 

In regard to one commenter’s concern 

that the rule’s ‘‘clear and convincing 

evidence’’ standard would displace 

USCIS’s current ‘‘reasonableness 

standard’’ for excusing a late-filed 

application, the commenter conflates 

the burden for showing extraordinary 

circumstances excusing the general oneyear filing deadline with the burden for 

showing exceptional and extremely 

unusual hardship warranting an 

exercise of discretion by the Secretary or 

Attorney General. Compare 8 CFR 

208.4(a)(5), 1208.4(a)(5) (‘‘The burden of 

proof is on the applicant to establish to 

the satisfaction of the asylum officer, the 

immigration judge, or the Board of 

Immigration Appeals . . . that the delay 

was reasonable under the 

circumstances’’), with 8 CFR 

208.13(d)(2)(ii), 1208.13(d)(2)(ii) 

(Secretary or Attorney General may 

favorably exercise discretion where one 

or more adverse discretionary factors are 

present in ‘‘cases in which an alien, by 

clear and convincing evidence, 

demonstrates that the denial of the 

application for asylum would result in 

exceptional and extremely unusual 

hardship to the alien’’). The two 

standards do not conflict because they 

apply in different contexts and serve 

different purposes.65 The ‘‘to the 

satisfaction of the asylum officer’’ 

standard reflects the statutory 

requirement that an alien must 

demonstrate extraordinary 

circumstances ‘‘to the satisfaction of the 

Attorney General’’ to excuse a late-filed 

asylum application. INA 208(a)(2)(D), 8 

U.S.C. 1158(a)(2)(D). It reflects a 

showing to be made by the alien in 

order to receive initial consideration of 

the asylum application, irrespective of 

its merits. The ‘‘clear and convincing 

evidence’’ standard reflects the showing 

necessary to warrant the Secretary’s or 

Attorney General’s favorable exercise of 

discretion when any significantly 

adverse factor—whether an unpaid tax 

obligation, or the denial of two previous 

applications—is present. This standard 

is consistent with prior standards set for 

the application of that discretion to 

immigration benefits. See 8 CFR 

212.7(d), 1212.7(d). It represents a 

concluding consideration to determine 

whether a grant of asylum is ultimately 

appropriate and goes directly to the 

merits of the asylum application. The 

two standards therefore do not conflict. 

The rule does not circumvent the 

United States’ obligations under the 

1967 Protocol. In accordance with its 

non-refoulement obligations under the 

1967 Protocol, the United States 

continues to offer statutory withholding 

of removal and protection under the 


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66See R–S–C– v. Sessions, 869 F.3d 1176, 1188 

n.11 (10th Cir. 2017) (explaining that ‘‘the Refugee 

Convention’s non-refoulement principle—which 

prohibits the deportation of aliens to countries 

where the alien will experience persecution—is 

given full effect by the Attorney General’s 

withholding-only rule’’); Cazun v. Att’y Gen. U.S., 

856 F.3d 249, 257 & n.16 (3d Cir. 2017) (similar); 

Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir. 

2016) (similar); Maldonado, 786 F.3d at 1162 

(explaining that Article 3 of the CAT, which sets 

out the non-refoulement obligations of parties, was 

implemented in the United States by the FARRA 

and its implementing regulations). For further 

discussion on international law principles as they 

relate to this rulemaking, see section II.C.6.8 infra. 

CAT regulations.66 The Departments 

also find commenters’ assertions 

unpersuasive that the UNHCR Executive 

Committee and former-President 

Clinton opposed the one-year deadline. 

As an initial matter, concerns regarding 

solely the one-year deadline are outside 

the scope of this regulation because the 

rule does not amend the deadline, nor 

could it. And, in any event, the 

Departments are not aware that any 

court has endorsed the UNHCR 

Executive Committee’s and President 

Clinton’s theory that the existing oneyear time bar on asylum applications 

violates international law. 

4.7.8. Tax Violations 

Comment: Commenters asserted that 

tax violations are not related to the 

merits of an asylum application and that 

the proposed regulation would punish 

asylum seekers for not understanding 

tax law. Commenters asserted that 

another result of EAD regulations is that 

many asylum seekers work in the 

informal economy and are paid ‘‘off the 

books’’ to support themselves while 

their applications are pending. 

Commenters argued that it is not 

reasonable to expect asylum seekers 

(some of whom, one commenter noted, 

do not speak English) to navigate the 

complexities of tax law to determine if 

they are required to file taxes. Another 

commenter asserted that even if an 

asylum seeker determined that he or she 

was not required to file, it would be 

difficult prove in court due to 

employment in the informal economy. 

The commenter also noted that in 

seeking to comply with the proposed 

rule, asylum seekers may turn to, and be 

defrauded by, notarios. 

One commenter asserted that, 

contrary to the NPRM’s reasoning, 

consideration of this factor would 

require more adjudicative time. 

Specifically, the commenter asserted 

that longer asylum interviews and 

hearings would be required to 

determine whether an asylum seeker 

was required to file taxes. 

Commenters further asserted that 

immigration judges are not qualified to 

make determinations as to whether an 

individual is required to file taxes and 

that by granting them such power the 

proposed rule would infringe upon the 

province of the Department of the 

Treasury. Commenters asserted that the 

proposed rule would open the DOJ to 

numerous and costly lawsuits under the 

APA where plaintiffs would allege that 

an immigration judge’s misapplication 

of the tax code led to denials of asylum 

applications. Moreover, commenters 

argued that such lawsuits would 

‘‘effectively bankrupt’’ the United 

States. 

Commenters asserted that the 

proposed provisions relating to tax 

violations would violate the U.S. 

Constitution in two ways. First, 

commenters argued that the proposed 

provisions conflict with the Eighth 

Amendment’s proscription against cruel 

and unusual punishment. Specifically, 

commenters asserted that if an applicant 

presents a meritorious claim, it would 

be cruel and unusual punishment to 

consider the ‘‘minor civil error’’ of not 

filing taxes on time a ‘‘strict liability 

offense’’ that completely bars the 

applicant from asylum protection. 

Second, commenters argued that the 

proposed regulation would violate the 

Equal Protection Clause because the 

proposed rule would create harsher 

penalties for asylum seekers who do not 

file than for citizens and LPRs. 

Specifically, commenters asserted that 

by barring individuals from eligibility 

for asylum protection, the proposed rule 

would create harsher penalties for 

asylum seekers for tax non-compliance 

than for citizens and LPRs who would 

not face such severe consequences. 

Commenters also asserted that many 

asylum seekers would not be able to 

comply with the proposed tax 

provisions due to USCIS’s rules 

pertaining to Employment 

Authorization Documents (‘‘EAD’’). 

Commenters asserted that under the 

EAD rules, it is not possible for asylum 

seekers to receive a social security 

number (‘‘SSN’’) prior to obtaining an 

EAD. One commenter asserted that the 

IRS website is unclear on whether 

asylum seekers without EADs would be 

eligible to receive Individual Taxpayer 

Identification Numbers (‘‘ITIN’’). The 

commenter asserted that even if an 

asylum seeker is eligible for an SSN or 

an ITIN, it could still be difficult for the 

applicant to obtain the identity 

documents needed to apply for an SSN 

or an ITIN from his or her home 

country. 

Response: In general, the comments 

on this provision suggest either that 

aliens seeking asylum should be 

excused from filing Federal, state, or 

local income tax returns or that the 

Departments should ignore clear 

violations of law when aliens fail to do 

so. Neither suggestion is well-taken by 

the Departments, as either 

countenancing or ignoring violations of 

the law is inconsistent with each’s 

mission. Moreover, the comments fail to 

acknowledge clear case law that income 

tax violations are a significant adverse 

discretionary factor in the immigration 

adjudication context. See, e.g., Matter of 

A–H–, 23 I&N Dec. 774, 782–83 (A.G. 

2005) (noting that tax violations ‘‘weigh 

against asylum’’ because they exhibit 

‘‘disrespect for the rule of law’’); cf. In 

re Jean Gilmert Leal, 2014 WL 4966499, 

*2 (BIA Sept. 9, 2014) (noting in the 

context of an application for adjustment 

of status that it is ‘‘well settled’’ that 

‘‘failure [to file tax returns] is a negative 

discretionary factor because it reflects 

poorly on the applicant’s respect for the 

rule of law and his sense of obligation 

to his community’’). 

The Departments also note that 

consideration of tax returns filed by 

aliens are already enshrined in multiple 

places in immigration law. See, e.g., 8 

CFR 210.3(c)(3) (alien applicant for 

legalization program may establish 

proof of employment through, inter alia, 

Federal or state income tax returns); id. 

214.2(a)(4) (alien dependents of certain 

visa holders who obtain employment 

authorization ‘‘are responsible for 

payment of all Federal, state and local 

income, employment and related taxes 

and Social Security contributions on 

any remuneration received’’); id. 

214.2(5)(ii)(E) (restricting employment 

eligibility for certain visa dependents 

when the proposed employment is 

contrary to the interest of the United 

States, defined as, inter alia, 

employment of visa holders or 

dependents ‘‘who cannot establish that 

they have paid taxes and social security 

on income from current or previous 

United States employment’’); id. 

214.2(g)(4), (5)(ii)(E) (same, but for a 

different visa category); id. 

244.9(a)(2)(i), 1244.9(a)(2)(i) (income tax 

returns may serve as proof of residence 

for purposes of an application for 

Temporary Protected Status (‘‘TPS’’)); 

id. 1244.20(f)(1) (adjudicator may 

require proof of filing an income tax 

return before granting a fee waiver for a 

TPS application); id. 

1245.13(e)(3)(iii)(E) (alien applicant for 

adjustment of status may establish proof 

of physical presence in the United 

States through, inter alia, income tax 

records). To the extent that commenters 

raised concerns about an alien’s ability 

to navigate existing tax systems in the 

United States—a question that is beyond 


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the scope of this rule—they neither 

acknowledged the many existing 

provisions linking aliens, benefits, and 

income tax returns nor persuasively 

explained why adherence to tax laws is 

an inappropriate discretionary factor to 

consider in the context of the rule. 

The Departments disagree with 

commenters regarding the relation of tax 

violations to the statutory discretionary 

analysis. As the proposed rule 

explained, the Departments see no 

concern with treating an asylum 

applicant’s failure to file tax forms, 

when required by law, as a negative 

factor in an asylum adjudication when 

all other individuals required to file tax 

returns in the United States are subject 

to negative consequences for failure to 

file required tax forms. See 85 FR at 

36284. The Departments believe that 

adherence to U.S. tax law is applicable 

to a favorable exercise of discretion, and 

this factor evaluates such adherence as 

part of an adjudicator’s discretionary 

analysis. 

The Departments find commenters’ 

concerns associated with working in the 

‘‘informal economy’’ to be unpersuasive. 

Aside from the fact that working 

without authorization is unlawful, the 

Departments emphasize the potential 

dangers of working without 

authorization, including exploitation, 

and, thus, strongly discourage aliens 

from doing so. Although not the 

purpose of this regulation, if the rule 

deters aliens from working without 

authorization, then the Departments 

find that to be a positive unintended 

consequence. Further, to the extent that 

commenters assert this rule will have 

negative consequences on aliens who 

are violating the law—either by working 

without authorization or by failing to 

file tax returns—the Departments find 

continuing illegal activity to be an 

insufficiently persuasive basis to alter 

the rule. 

To the extent that commenters are 

opposed to the EAD regulations or 

expressed concern in regard to notario 

fraud, such concerns are outside the 

scope of this rulemaking. Moreover, 

aliens who require an EAD but do not 

possess one should not be engaged in 

employment, and aliens who have not 

engaged in employment will—unless 

they have another source of taxable 

income—generally not be required to 

file income tax returns that are the 

subject of the rule. Further, the 

Departments recognize that notario 

fraud exists, but it exists independently 

of the rule and has existed for many 

years. To the extent that notario fraud 

exists in tax preparation services, again, 

that fraud exists outside of this rule and 

flows from long-standing state and 

Federal tax obligations, not any 

provision proposed in the rule. To the 

extent that commenters oppose this 

portion of the rule because they believe 

it will lead aliens to engage in unlawful 

behavior (i.e., working without an EAD), 

the Departments note that nothing in the 

rule requires any individual to engage in 

unlawful behavior. Similarly, to the 

extent that commenters oppose the rule 

because they believe it will cause aliens 

to fulfill an existing legal obligation (i.e., 

filing income tax returns) by utilizing 

individuals who themselves may engage 

in unlawful behavior (i.e., notarios), the 

Departments also note that nothing in 

the rule requires aliens to hire 

individuals who engage in illegal 

behavior. Further, even if aliens turn to 

notarios to prepare and file tax returns, 

they would do so not in response to the 

rule, but in response to the myriad laws 

documented above that already 

incentivize or require aliens to file 

income tax returns. Moreover, under 

Matter of A–H–, 23 I&N at 782–83, 

immigration judges may already 

consider tax violations as a significantly 

adverse factor, and commenters point to 

no evidence of their predicted dire 

consequences from that decision. The 

Departments therefore believe any such 

speculative harm is outweighed by the 

policy benefits of codifying this factor 

by rule and providing clear guidance to 

adjudicators about how to weigh this 

factor when exercising discretion to 

grant or deny asylum. In short, 

commenters’ concerns minimize 

personal responsibility and agency, are 

outside the scope of the rulemaking, and 

are outweighed by the policy benefits of 

the rule. 

Commenters’ concerns about tax law 

are similarly outside the scope of this 

rulemaking. Everyone, U.S. citizens and 

non-citizens alike, are required to 

comply with the tax laws. See 85 FR at 

36284 (citing 26 U.S.C. 6012, 7701(b); 

26 CFR 1.6012–1(a)(1)(ii), (b)). This rule 

does not change tax law, which, as 

relevant to this rulemaking, requires 

certain aliens to file tax forms without 

regard to their primary language or the 

complexity of the tax code. 

Nevertheless, the IRS has assistance 

available in multiple languages, see 

Internal Revenue Serv., Help Available 

at IRS.gov in Different Languages and 

Formats (last updated Apr. 3, 2020), 

https://www.irs.gov/newsroom/helpavailable-at-irsgov-in-differentlanguages-and-formats, and there are 

numerous legitimate agencies, clinics, 

and nonprofits that can also be solicited 

for assistance with tax law compliance, 

see, e.g., Internal Revenue Serv., Free 

Tax Return Preparation for Qualifying 

Taxpayers (last updated Nov. 9, 2020), 

https://www.irs.gov/individuals/freetax-return-preparation-for-qualifyingtaxpayers (discussing the IRS’s 

Volunteer Income Tax Assistance 

(‘‘VITA’’) program); see also Internal 

Revenue Serv., IRS Publication 3676–B, 

https://www.irs.gov/pub/irs-pdf/ 

p3676bsp.pdf (explaining the types of 

tax returns prepared under the VITA 

program). This rule requires 

consideration of an asylum applicant’s 

compliance with tax laws as part of the 

adjudicator’s discretionary analysis and 

merely provides direction to 

adjudicators regarding how to assess, as 

a discretionary factor, an alien’s failure 

to adhere to the law. It does not 

substantively change tax law in any 

way. 

The Departments disagree with 

commenters’ concerns that evaluating 

this factor will require more 

adjudicative time. As discussed above, 

consideration of a failure to file income 

tax returns is already an adverse factor 

for purposes of asylum adjudications. 

See Matter of A–H–, 23 I&N at 783. 

Thus, its further codification in 

applicable regulations will not 

appreciably require additional 

adjudicatory time. Further, even if it 

did, the benefit of clarity and guidance 

provided by this rule to the 

discretionary analysis outweighs any 

minimal, additional adjudicatory time. 

The Departments are confident that 

asylum officers and immigration judges 

possess the competence and 

professionalism necessary to timely 

interpret and apply the relevant 

regulations and statutes when 

considering this factor. See 8 CFR 

1003.10(b) (‘‘immigration judges shall 

exercise their independent judgment 

and discretion’’). Immigration judges 

have undergone extensive training; 

further, immigration judges already 

interpret and apply complex criminal 

law as it affects an alien’s immigration 

status. In light of this, the Departments 

disagree with commenters who claim 

that immigration judges are not 

qualified to make determinations based 

on this factor. Relatedly, the Department 

declines to address commenters’ 

speculative assertions that 

misapplication of the tax code by 

immigration judges will open up the 

Departments to litigation, which will, in 

turn, bankrupt the Departments. As 

discussed, supra, the Departments have 

already been considering the failure to 

file income tax returns as a 

discretionary factor for many years, and 

such considerations have not led to the 

dire consequences predicted by 

commenters. 


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Likewise, the Departments disagree 

that this factor improperly infringes on 

the purview of the Treasury 

Department. This factor evaluates the 

tax status of aliens only as it applies to 

their immigration status, which is 

clearly within the jurisdiction of the 

Departments. 8 CFR 208.2, 208.9(a), 

1208.2, 1003.10(b). This factor does not 

determine tax-related responsibilities or 

consequences for such aliens. 

Commenters misapply the Eighth 

Amendment’s protection against cruel 

and unusual punishment. The Eighth 

Amendment applies in the context of 

criminal punishments, protecting 

against disproportional punishments as 

they relate to the offense. See Roper v. 

Simmons, 543 U.S. 551, 560 (2005) 

(‘‘[T]he Eighth Amendment guarantees 

individuals the right not to be subjected 

to excessive sanctions. The right flows 

from the basic precept of justice that 

punishment for crime should be 

graduated and proportioned to the 

offense.’’ (cleaned up)). 

Denial of an asylum application, 

however, is not a criminal punishment. 

As an initial matter, immigration 

proceedings are civil in nature. See INS 

v. Lopez-Mendoza, 468 U.S. 1032, 1038– 

39 (1984) (‘‘A deportation proceeding is 

a purely civil action[.]’’). Courts have 

held the Eighth Amendment 

inapplicable to deportation because, as 

a civil proceeding, it is not a criminal 

punishment. See Sunday v. Att’y Gen. 

U.S., 832 F.3d 211, 219 n.8 (3d Cir. 

2016) (collecting cases); Elia v. 

Gonzales, 431 F.3d 268, 276 (6th Cir. 

2005); Bassett v. U.S. Immigration and 

Naturalization Serv., 581 F.2d 1385, 

1387–88 (10th Cir. 1978); cf. LopezMendoza, 468 U.S. at 1038–39. The 

underlying principle of these cases is 

that the power to exclude aliens through 

deportation constitutes an ‘‘exercise of 

the sovereign’s power to determine the 

conditions upon which an alien may 

reside in this country,’’ rather than an 

exercise of penal power. Trop v. Dulles, 

356 U.S. 86, 98, 101 (1958) (holding that 

Congress cannot strip citizenship as a 

punishment under the Eighth 

Amendment, but distinguishing 

denaturalization of a citizen from 

deportation of an alien); see also Fong 

Yue Ting v. United States, 149 U.S. 698, 

705 (1893) (noting that the power to 

exclude aliens is an inherent function of 

sovereignty). 

Accordingly, denial of asylum, 

regardless of the reasoning underlying 

such denial, cannot be construed as a 

criminal punishment subject to the 

Eighth Amendment because it is 

adjudicated in a civil proceeding as a 

form of discretionary relief. Further, this 

factor is not a ‘‘strict liability offense,’’ 

as asserted by the commenters, because 

it is only a factor to consider as part of 

the discretionary component of asylum 

eligibility under the Act. INA 

208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); see 

85 FR at 36283. 

Commenters also misapply the Equal 

Protection Clause. This rule applies to 

all aliens and does not impose any 

classifications that would trigger 

heightened scrutiny under the clause. 

Thus, this factor does not offend 

principles of equal protection under the 

Constitution. 

Finally, to the extent that commenters 

are concerned certain aliens may have 

difficulties meetings their tax 

obligations due to DHS’s EAD rules, the 

Departments again note that these 

discretionary factors are not bars to 

eligibility. The Departments note, 

however, that asylum seekers who lack 

an EAD should generally not have a tax 

liability as they are prohibited from 

engaging in employment. Any other 

comments regarding specific IRS 

requirements for the issuance of SSNs or 

ITINs are outside the scope of this rule. 

4.7.9. Two or More Prior Asylum 

Applications Denied for Any Reason 

Comment: One commenter noted that 

there are many reasons that an asylum 

applicant may have had two or more 

prior asylum applications denied, 

including ineffective assistance of 

counsel, mental disability that 

prevented the applicant from properly 

articulating the claim, and pursuing the 

claim pro se. The commenter asserted 

that it would be inappropriate in such 

circumstances to deny future bona fide 

asylum applications. 

One commenter asserted that it was 

inappropriate to include the proposed 

provision concerning denial of two or 

more asylum applications as a factor in 

discretionary determinations. Instead, 

the commenter argued, the presence of 

such a factor should be considered on 

a case-by-case basis and together with 

all of the circumstances. 

Response: This factor, like the other 

factors, is considered under the totality 

of the circumstances. Further, it is not 

a bar to asylum; it is one of various 

factors that adjudicators should 

consider in determining whether an 

application merits a favorable exercise 

of discretion. 

The Departments reiterate that 

consideration of this factor, as well as 

the other factors, does not affect the 

adjudicator’s ability to consider whether 

extraordinary circumstances exist or 

whether denial of asylum would result 

in exceptional and extremely unusual 

hardship to the alien. 85 FR at 36285; 

8 CFR 208.13(d)(2)(ii), 1208.13(d)(2)(ii). 

Accordingly, an adjudicator may 

consider the circumstances referenced 

by the commenter—ineffective 

assistance of counsel, mental disability, 

lack of counsel—and determine whether 

they constitute extraordinary 

circumstances. Further, the Departments 

reiterate that such aliens may still apply 

for other forms of relief, such as nondiscretionary withholding of removal 

and protection under the CAT. 

4.7.10. Withdrawn a Prior Asylum 

Application With Prejudice or Been 

Found To Have Abandoned a Prior 

Asylum Application 

Comment: One commenter asserted 

that the proposed provisions concerning 

withdrawn and abandoned asylum 

applications are in conflict with a true 

discretionary determination. 

Specifically, the commenter asserted 

that discretionary determinations 

require consideration of the factor in 

light of the totality of circumstances, as 

opposed to the proposed ‘‘strict 

liability’’ standard. 

Commenters asserted that, contrary to 

the NPRM’s reasoning, there could be 

many valid reasons that an applicant 

would choose to withdraw or abandon 

an asylum application. One commenter 

noted that pursuing a family-based visa 

or Special Immigrant Juvenile (‘‘SIJ’’) 

status are two such examples. Another 

commenter noted that asylum seekers 

could be forced to abandon applications 

for reasons beyond their control, 

including a failure by the government to 

inform the asylum seeker of a court 

date, governmental notice that did not 

correctly state the time and place of a 

hearing, or a proceeding occurring in a 

language a respondent did not 

understand. Another commenter 

asserted that MPP has caused some 

asylum seekers at the southern border to 

abandon their applications. Specifically, 

the commenter asserted that some 

asylum seekers who had been returned 

to Mexico under MPP were 

subsequently kidnapped, which caused 

them to miss their hearings. The 

commenter asserted that immigration 

judges have been instructed to enter an 

order of removal in such instances, even 

when the judge has serious concerns 

that the asylum seeker did not appear as 

a result of kidnapping or violence. 

One commenter acknowledged the 

existence of notarios and other bad 

actors who seek to abuse the asylum 

system by filing asylum applications 

without their clients’ knowledge or 

consent and by engaging in ‘‘ten year 

visa’’ schemes. Rather than addressing 

abuse, the commenter argued that the 

proposed regulation would punish 

asylum seekers who have been victims 


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67An alien may also file a claim with DOJ’s Fraud 

and Abuse Prevention Program (Program), which 

investigates complaints of fraud, scams, and 

unauthorized practitioners and addresses these 

issues within EOIR. See EOIR, Fraud and Abuse 

Prevention Program (last updated Mar. 4, 2020), 

https://www.justice.gov/eoir/fraud-and-abuseprevention-program. The Program also supports 

investigations into fraud and unauthorized practice, 

prosecutions, and disciplinary proceedings initiated 

by local, state, and Federal law enforcement and 

disciplinary authorities. Id. From the efforts of this 

Program, and others, the Departments seek to 

ensure that aliens in proceedings before them are 

not victims to unscrupulous behavior by their 

representatives. 

of such fraud because it could result in 

future applications being rejected on 

discretionary grounds. 

One commenter asserted that asylum 

offices have ‘‘piloted projects’’ 

encouraging representatives to waive 

the asylum interview and have the 

matter referred directly to an 

immigration court. The commenter 

asserted that applicants may have relied 

on such action by asylum offices to 

assume the government did not have an 

objection to filing an asylum application 

for the purpose of being placed in 

removal proceedings. The commenter 

asserted that ICE should initiate removal 

proceedings in such situations if the 

individual has ‘‘compelling reasons’’ to 

pursue cancellation of removal. 

Response: The Departments reiterate 

that this factor, along with all the other 

factors, is considered as part of the 

discretionary analysis. The rule does not 

propose a ‘‘strict liability standard,’’ as 

alleged by commenters, and this factor’s 

presence does not bar asylum. The 

NPRM stated clearly that ‘‘[i]f the 

adjudicator determines that any of these 

nine circumstances apply during the 

course of the discretionary review, the 

adjudicator may nevertheless favorably 

exercise discretion in extraordinary 

circumstances, such as those involving 

national security or foreign policy 

considerations, or if the alien 

demonstrates, by clear and convincing 

evidence, that the denial of asylum 

would result in an exceptional and 

extremely unusual hardship to the 

alien.’’ See 85 FR at 36283–84. 

Accordingly, while the presence of this 

factor constitutes an adverse factor, 

adjudicators will consider extraordinary 

circumstances or exceptional and 

extremely unusual hardship—of which 

commenters referenced numerous 

examples—that may have led an 

applicant to withdraw or abandon a 

prior application. 

This rule does not ‘‘punish’’ asylum 

seekers for the conduct of their 

attorneys. Although the actions of an 

attorney may bind an alien absent 

egregious circumstances, Matter of 

Velasquez, 19 I&N at 377, nothing in the 

rule prohibits an alien from either 

alleging such circumstances to avoid the 

withdrawal or raising a claim of 

ineffective assistance of counsel.67 If an 

alien has concerns about the conduct of 

his or her representative, the alien 

should file an ineffective assistance of 

counsel claim or immigration fraud 

claim. See, e.g., Sow v. U.S. Att’y Gen., 

949 F.3d 1312, 1318–19 (11th Cir. 2020) 

(ineffective assistance of counsel); see 

also Viridiana v. Holder, 646 F.3d 1230, 

1238–39 (9th Cir. 2011) (distinguishing 

between an ineffective assistance of 

counsel claim and immigration 

consultant fraud and explaining that 

fraud by an immigration consultant may 

constitute an extraordinary 

circumstance). Overall, however, 

concerns about the impact of 

unscrupulous attorneys are largely 

speculative and remain capable of 

appropriate redress. Thus, the 

Departments decline to preemptively 

attempt to resolve speculative or 

hypothetical concerns. 

Further, should unusual 

circumstances warrant, applicants may 

present evidence so that adjudicators 

may consider whether it constitutes an 

extraordinary circumstance or 

exceptional and extremely unusual 

hardship, as previously described. 

Viridiana, 646 F.3d at 1238–39. 

Accordingly, the Departments disagree 

that consideration of this factor 

punishes asylum seekers who are 

victims of fraud. 

Finally, regarding commenters’ 

notation that asylum seekers may have 

relied on previous USCIS pilot programs 

to assume the government did not have 

an objection to filing an asylum 

application for the purpose of being 

placed in removal proceedings, the 

Departments disagree that it would ever 

have been appropriate or authorized to 

file an asylum application without an 

actual fear of persecution or torture and 

an intent to seek such relief or 

protection. Indeed, the I–589 form itself 

requires the alien’s attestation as to the 

truth of the information provided and 

an acknowledgement of the 

consequences of filing a frivolous 

application. 

4.7.11. Failed To Attend an Interview 

Regarding His or Her Asylum 

Application 

Comment: Commenters asserted that 

the proposed provision concerning 

failure to attend an interview regarding 

his or her asylum application is unfair, 

and that presence of the proposed factor 

should be one factor considered in 

context with the totality of the 

circumstances. 

Commenters asserted that the 

proposed ‘‘extraordinary 

circumstances’’ exception is unfair 

because it would not recognize valid 

explanations that, as one commenter 

noted, do meet the current ‘‘good cause’’ 

standard. For example, one commenter 

asserted that valid exceptions that may 

not rise to the level of extraordinary 

circumstances include lack of child care 

on the day of the interview, issues with 

public transportation, medical issues, or 

an interpreter cancelling at the last 

minute. One commenter asserted that 

the NPRM does not clarify what 

explanations would rise to the level of 

extraordinary circumstances. 

One commenter asserted that the 

proposed regulation would increase the 

court backlog and that USCIS factors in 

the possibility that applicants may not 

appear for interviews to ensure that no 

interview slot is wasted. Specifically, 

the commenter asserted that under 

current USCIS policy, USCIS will 

typically wait 46 days before turning 

over a case to an immigration court, so 

as to give the applicant time to establish 

good cause and reschedule a missed 

interview. By not giving USCIS such 

flexibility, the commenter argued, more 

cases would be referred to the 

immigration courts, thereby increasing 

the backlog. 

One commenter expressed concern 

with the proposed exception regarding 

the mailing of notices. The commenter 

argued that it is unfair to require 

applicants to prove that the government 

sent the notice to the correct address. 

The commenter also asserted that it is 

important for USCIS to send the notice 

to both the applicant and the applicant’s 

representative. By just sending the 

notice to a representative, the 

commenter argued, a representative who 

had a falling out with his or her client 

(as a result of, the commenter 

highlighted, ineffective assistance of 

counsel or dispute over payment) may 

not inform the applicant of an upcoming 

interview, which could cause the 

applicant to miss the interview. The 

commenter noted that in the current 

COVID–19 environment, a 

representative may not be able to go to 

the office to receive mail in a timely 

fashion, which means that some 

applicants may not learn of the 

interview until it is too late. Conversely, 

the commenter argued, sending the 

notice only to applicants could lead to 

missed interviews because applicants 

who do not understand English may 

disregard the notice due to a 

misunderstanding of its importance. 

Response: This factor is not an 

absolute bar to asylum; instead, this 

factor is considered as part of the 


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adjudicator’s discretionary analysis. The 

proposed rule clearly stated that 

presence of this factor constitutes an 

adverse factor, 85 FR at 36283, not an 

asylum bar. Further, the alien may argue 

that (1) exceptional circumstances 

prevented the alien from attending the 

interview or (2) the interview notice was 

not mailed to the last address provided 

by the alien or the alien’s representative 

and that neither received notice of the 

interview. See 8 CFR 

208.13(d)(2)(i)(H)(1)–(2), 

1208.13(d)(2)(i)(H)(1)–(2) (proposed). 

Such exceptions are evidence that this 

factor does not constitute a bar to 

asylum. 

The exceptions provided in proposed 

8 CFR 208.13(d)(2)(i)(H)(1), 

1208.13(d)(2)(i)(H)(1) broadly allow for 

‘‘exceptional circumstances.’’ If the rule 

identified exact circumstances sufficient 

to negate this factor—departing the 

United States or withdrawing the 

application for another reason, as 

suggested by the commenter—it would 

unnecessarily limit aliens to a narrow 

set of permissible reasons for why an 

alien might have missed an interview. 

The Departments recognize that a 

number of reasons may cause an alien’s 

absence at an interview, including 

unanticipated circumstances by the 

Departments, and the broad language 

allows for such possibility. Contrary to 

the commenter’s allegations, the 

Departments included language 

specifically referencing failure to 

receive the notice. See 8 CFR 

208.13(d)(2)(i)(H)(2), 

1208.13(d)(2)(i)(H)(2) (proposed). 

This factor is not arbitrary or unfair. 

The current administrative process 

required after an alien misses an 

interview demonstrates the necessity of 

this factor’s inclusion in a discretionary 

analysis. While asylum officers may 

currently follow a process for missed 

interviews, as commenters described, 

missed interviews increase overall 

inefficiencies because a case does not 

timely progress as the Departments 

intend. Commenters’ reasoning that the 

rule increases inefficiencies at the 

hearing stage in place of rescheduling 

the interview in the first instance is 

nonsensical. If a missed interview is 

rescheduled, the case is prolonged at the 

outset, thereby increasing overall time 

to adjudicate the application. Moreover, 

the application may still be adjudicated 

in a hearing at a later date, adding even 

more time overall for adjudication. If a 

missed interview triggers scheduling of 

a hearing, as outlined in this rule, the 

case efficiently proceeds to the hearing 

stage where an adjudicator will balance 

all factors, including the missed 

interview, in a discretionary analysis. At 

bottom, the rule encourages aliens to 

attend their interviews after filing an 

asylum application, which increases the 

likelihood of being granted asylum and, 

thus, reduces the likelihood of cases 

being referred to an immigration judge. 

Accordingly, the Departments disagree 

that this factor is arbitrary or unfair or 

would increase the backlog. Rather, the 

current system allows aliens to prolong 

adjudication of their applications at the 

expense of slowing the entire system, 

such that other aliens fail to receive 

timely adjudication of their 

applications. The Departments believe 

this current system is unfair and seek to 

resolve these inefficiencies through this 

rulemaking. 

As commenters aptly pointed out, 

these cases may involve significant 

issues that must be determined and 

further explored in an interview. The 

interview is a vital step in adjudication 

of an asylum application. See DHS, 

Establishing Good Cause or Exceptional 

Circumstances (last updated Aug. 25, 

2020), https://www.uscis.gov/ 

humanitarian/refugees-and-asylum/ 

asylum/establishing-good-cause-orexceptional-circumstances (‘‘You must 

attend your scheduled asylum interview 

or the asylum office will treat your case 

as a missed interview (failure to 

appear).’’). Other regulatory provisions 

already attest to the importance of this 

interview through imposition of blunt 

consequences. See, e.g., 8 CFR 

208.7(a)(iv)(D), 1208.7(a)(4) (providing 

that an alien will be denied an EAD 

upon failure to appear for an interview, 

absent extraordinary circumstances); see 

also 8 CFR 208.10(b)(1), 1208.10 

(providing that failure to attend an 

interview may result in ‘‘dismissal of 

the application’’). In addition, aliens 

who are inadmissible or deportable and 

fail to attend their interview risk being 

deemed to have waived their right to an 

interview, the dismissal of their 

application, and being placed in 

removal proceedings where they may 

ultimately be ordered removed by an 

immigration judge. 8 CFR 208.14(c)(1). 

The NPRM’s consideration of this factor 

further reflects the urgency and 

importance of attending such interviews 

but for the most exceptional reasons. 

For that reason, and not, as commenters 

alleged, to punish asylum seekers, the 

Departments include it as a factor for 

consideration. 

Commenters’ concerns about 

problems that may arise between an 

alien and his or her representative are 

speculative. Regardless of the 

rulemaking, such concerns are not 

without redress: an alien could file an 

ineffective assistance of counsel claim, 

see, e.g., Sow, 949 F.3d at 1318–19, or 

an alien could claim that immigration 

consultant fraud (or the like) is an 

extraordinary circumstances, see 

Viridiana, 646 F.3d at 1238–39. 

Commenters’ concerns about aliens 

providing a correct address to the 

Departments are also beyond the scope 

of this rulemaking. Aliens are already 

required to notify DHS of changes of 

address, INA 265, 8 U.S.C. 1305, and 

may face criminal, INA 266(b), 8 U.S.C. 

1306(b), or civil, INA 237(a)(3)(A), 8 

U.S.C. 1227(a)(3)(A), repercussions for 

not doing so. The rule does not alter the 

long-standing requirement that aliens 

notify the Government of their current 

address. 

This exception employs a lower 

standard of preponderance of the 

evidence. Meeting such burden varies 

depending on the case; therefore, the 

Departments decline to expand on the 

exact method of proof or documents 

necessary to meet that burden. 

4.7.12. Subject to a Final Order of 

Removal, Deportation, or Exclusion and 

Did Not File a Motion To Reopen To 

Seek Asylum Based on Changed 

Country Conditions Within One Year of 

the Changes in Country Conditions 

Comment: Commenters expressed 

concern that the proposed discretionary 

factor pertaining to failure to file a 

motion to reopen after a final order had 

been entered and within one year since 

changed country conditions emerged 

would lead to the denial of most asylum 

applications. As with other proposed 

discretionary factors, commenters 

asserted that the proposed rule was not 

creating a true discretionary 

determination as a result of the weight 

given to the presence of this proposed 

factor. One commenter asserted that by 

giving this and other proposed factors 

significant negative weight, the 

Departments would be inappropriately 

deviating from Matter of Pula, which, 

the commenter argued, is wellestablished precedent. Commenters 

asserted that the proposed discretionary 

factor should be considered on a caseby-case basis and in context with all the 

circumstances. 

One commenter asserted that the 

proposed factor is ultra vires and 

conflicts with congressional intent 

because it ‘‘directly contradicts’’ section 

240(c)(7)(C)(ii) of the Act, 8 U.S.C. 

1229a(c)(7)(C)(ii), which states 

circumstances for which there are no 

time limits for filing a motion to reopen. 

The commenter argued that the one case 

cited by the NPRM in support of the 

proposed provision, Wang v. BIA, 508 

F.3d 710, 715–16 (2d Cir. 2007), 

concerned a different provision of the 

INA. Specifically, the commenter 


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asserted that the asylum seeker in Wang 

was subject to a 90-day limit on filing 

a motion to reopen and was arguing for 

equitable tolling in light of ineffective 

assistance of counsel. The commenter 

thus argued it is ‘‘irrational’’ for the 

government to use the case to justify the 

regulation. 

Another commenter expressed 

opposition to the rule because it 

presumes that the exact date of a 

country condition change can be 

precisely determined, which in turn 

presumes that country conditions ‘‘turn 

on a dime.’’ Because, the commenter 

alleged, the NPRM did not provide 

guidance on determining when a change 

exactly occurs, the commenter predicted 

‘‘protracted disputes’’ over when a 

change occurs, which would be 

‘‘antithetical to judicial economy.’’ One 

commenter expressed disagreement 

with the NPRM’s reasoning that the 

proposed provision would increase 

‘‘efficiency in processing.’’ Specifically, 

the commenter asserted that the NPRM 

failed to explain why adjudicating a 

motion to reopen filed 13 months after 

the presence of changed country 

conditions would be less efficient than 

adjudicating a similar motion filed 11 

months after the change. 

Response: This factor, like all other 

factors discussed herein, is part of the 

adjudicator’s discretionary analysis. 85 

FR at 36285. This factor’s presence does 

not bar asylum; an alien who files a 

motion to reopen based on changed 

country conditions more than one year 

following such changed conditions may 

still show that extraordinary 

circumstances exist or that denial of 

asylum would result in an exceptional 

and extremely unusual hardship to the 

alien. 8 CFR 208.13(d)(2)(ii), 

1208.13(d)(2)(ii) (proposed). 

Accordingly, applications are indeed 

considered on a case-by-case basis, and 

concerns that this factor would result in 

denial of most asylum applications is 

speculative. 

Further, commenters did not engage 

the Departments’ animating thrust 

behind this provision—to discourage 

dilatory claims, encourage the timely 

adjudication of new claims, and 

improve overall efficiency. Those 

benefits far outweigh any alleged 

concerns raised by commenters, 

especially since the presence of 

‘‘changed country conditions’’ is a clear 

statutory basis for filing a motion to 

reopen. INA 240(c)(7)(C)(ii), 8 U.S.C. 

1229a(c)(7)(C)(ii). Both the Departments 

and aliens have a clear interest in 

raising and adjudicating claims for 

asylum in a timely fashion. To that end, 

there is nothing unreasonable or 

inappropriate about considering a 

lengthy delay in raising a claim as an 

adverse discretionary factor because 

such delays undermine the efficiency of 

the overall system and may, as a 

secondary effect, delay consideration of 

other meritorious claims. 

Consideration of this factor does not 

impermissibly deviate from Matter of 

Pula. As explicitly stated in the NPRM, 

the rule’s approach supersedes Matter of 

Pula. 85 FR at 36285. Because 

‘‘[a]gencies are free to change their 

existing policies as long as they provide 

a reasoned explanation for the change,’’ 

Encino Motorcars, LLC, 136 S. Ct. at 

2125, the Departments permissibly 

superseded Matter of Pula’s approach. 

See Section II.C.4.7 of this preamble for 

further discussion regarding the 

permissibility of superseding that case. 

This factor also aligns with the 

statute. As commenters correctly stated, 

section 240(c)(7)(C)(ii) of the Act, 8 

U.S.C. 1229a(c)(7)(C)(ii), provides ‘‘there 

is no time limit’’ to file a motion to 

reopen to apply for relief under section 

208 of the Act, 8 U.S.C. 1158, or section 

241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), 

based on changed country conditions. 

The rule does not institute a time limit 

in contravention of the statute. 

Nor was the Departments’ reference to 

Wang, 508 F.3d at 715–16, irrational. 

That case demonstrated the importance 

of aliens exercising due diligence in 

their cases. The citation was not meant 

to illustrate an identical fact pattern 

justifying the entire regulation, as one 

commenter alleged. 

Although the Departments 

acknowledge it may be difficult to 

ascertain the precise date on which 

country conditions changed, the 

Departments also do not believe that 

ascertaining one specific day is 

necessarily required in most cases or 

that an inability to ascertain the precise 

date undermines the rule’s efficacy. 

Even if country circumstances do not 

‘‘change on a dime’’ and adjudicators 

can project only a range of dates, many 

cases would fall clearly inside or 

outside the one-year window. For 

example, if evidence showed that 

country conditions changed over a 

three-month period and the applicant 

filed two years outside the period, an 

adjudicator would be able to find this 

adverse factor notwithstanding 

difficulty in ascertaining a single day on 

which country conditions changed. In 

the Departments’ view, the one-year 

window provides ample time for aliens 

to file a claim. And, in any event, the 

Departments doubt that it will be so 

difficult to ascertain a precise date in 

many cases. When a discrete event— 

e.g., a ceasefire in a civil war—changes 

a country’s conditions, determining a 

precise date will be straightforward. 

Accordingly, the rule would not 

produce ‘‘protracted disputes’’ about the 

date country conditions changed. 

Moreover, commenters did not 

plausibly or persuasively explain why 

an alien with a genuine well-founded 

fear of persecution would delay in filing 

an asylum application for a significant 

length of time, and it strains credulity 

that such an alien would wait more than 

a year to seek asylum, absent some 

extraordinary circumstance. The rule 

requires that the alien exercise due 

diligence with regard to the case. 85 FR 

at 36285. If, for some reason, the alien 

is unable to meet that one-year deadline 

for reasons related to commenters’ 

concerns that pinpointing the exact date 

a country condition changed will be 

problematic, an alien may present such 

an event as an extraordinary 

circumstance in accordance with the 

rule. See id. 

The Departments have a significant 

interest in expedient, efficient 

adjudication of asylum cases. See 

Talamantes-Penalver v. INS, 51 F.3d 

133, 137 (8th Cir. 1995) (‘‘Enforcement 

of this nation’s immigration laws is 

enhanced by the speedy adjudication of 

cases and the prompt deportation of 

offenders.’’). Establishing this factor 

strongly encourages and underscores the 

importance of expedient resolution of 

asylum cases; however, the Departments 

note that expediency and efficiency do 

not trump extraordinary circumstances 

that may exist or exceptional or 

extremely unusual hardship that may 

result if asylum is denied. 

The Departments have determined 

that the appropriate timeframe within 

which an alien should be able to file a 

motion to reopen based on changed 

country conditions is one year from a 

changed country condition. Currently, 

the regulation at 8 CFR 1208.4(a)(4)(ii) 

provides that an alien should file an 

asylum application 

within a reasonable period, given those 

‘‘changed circumstances.’’ If the applicant 

can establish that he or she did not did not 

become aware of the changed circumstances 

until after they occurred, such delayed 

awareness shall be taken into account in 

determining what constitutes a ‘‘reasonable 

period.’’ 

Case law broadly applies this 

‘‘reasonable period’’ standard. See 

Pradhan v. Holder, 352 F. App’x. 205, 

207 (9th Cir. 2009) (explaining that, 

based on the record, the immigration 

judge properly denied an asylum 

application filed 11 months after the 

applicant learned of changed country 

conditions and his family kept him 

apprised of the political climate in the 

country); cf. Ljucovic v. Barr, 796 F. 


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App’x. 898, 899 (6th Cir. 2020) 

(dismissing for lack of jurisdiction a 

petition challenging the BIA’s denial of 

a motion to reopen asylum proceedings 

four years following awareness of a 

changed condition because the 

petitioner did not exercise due diligence 

and file within a reasonable period of 

time). This factor would be no more 

difficult to apply than 8 CFR 1208.4’s 

‘‘reasonable period’’ standard, and, for 

purposes of the discretionary analysis, 

this rule determines that a reasonable 

period of time is one year within the 

date of the changed country condition. 

Further, just as 8 CFR 1208.4 allows 

adjudicators to consider ‘‘delayed 

awareness’’ in evaluating ‘‘what 

constitutes a reasonable period’’ when 

determining whether an alien may 

apply for asylum, this factor similarly 

allows adjudicators to consider whether 

extraordinary circumstances or 

exceptional or extremely unusual 

hardship would arise when determining 

whether to exercise discretion to grant 

or deny asylum. 

Because Congress determined it 

reasonable for aliens to file an initial 

application within one year of arrival, 

INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B), 

the Departments similarly find it 

reasonable to use a one-year timeline, 

rather than 11 months or 13 months as 

suggested by commenters, in evaluating 

this factor as part of a larger 

discretionary analysis, subject to the 

exceptions previously described. The 

Departments recognize that any specific 

deadline is inherently both over- and 

under-inclusive to some extent, but the 

benefits of a clear deadline that is both 

familiar to applicants and adjudicators 

and straightforward to administer 

outweigh any purported benefits 

attributable to an unfamiliar and 

uncommon deadline—e.g., 13 months— 

or one that is more difficult to apply— 

e.g., a ‘‘reasonable period’’—particularly 

in the context of a discretionary 

analysis. 

4.8. Firm Resettlement 

Comment: Commenters asserted that 

the proposed firm resettlement 

provisions conflict with international 

law. Commenters stated that Congress 

considered the language in section 

208(b)(A)(vi) of the Act, 8 U.S.C. 

1158(b)(A)(vi), to be equivalent to 

Article 1E of the Refugee Convention, 

which only considered refugees to be 

resettled when they permanently took 

up residence in a third country or were 

afforded rights comparable to third 

country nationals. One commenter 

stated that the permanent residency 

requirement is further evidenced in the 

1950 amendments of the Displaced 

Persons Act. See An Act to Amend the 

Displaced Persons Act of 1948, Public 

Law 81–555, 64 Stat. 219 (1950). The 

commenter asserted that the 

amendments were designed to ensure 

that those who temporarily resided in 

parts of Europe following their flight 

from Nazi persecution would remain 

eligible for protection in the United 

States. Under the proposed rules, the 

commenter argued, these same 

individuals would be inappropriately 

barred from asylum. 

Commenters expressed concern that, 

under proposed 8 CFR 208.15(a)(1), 

individuals unaware of third country 

resettlement laws in countries through 

which they fleetingly passed could be 

punished and that those attempting to 

firmly resettle in a third country could 

face a number of challenges 

incompatible with the congressional 

intent of the concept of firm 

resettlement. Commenters argued, for 

example, that those attempting to firmly 

resettle could face restrictions on 

freedom of movement, unfair 

immigration procedures, government 

corruption, violence, and the practical 

inability to obtain legally guaranteed 

documents permitting asylees the right 

to live and work in the country while an 

application is pending. Commenters 

similarly asserted that, contrary to the 

NPRM’s reasoning, the number of 

resettlement opportunities has not 

grown in recent years, and that 

considering whether a third country is 

a signatory to the Refugee Convention is 

not sufficient to determine whether firm 

resettlement is possible. A firm 

resettlement inquiry, commenters 

argued, requires a case-by-case 

consideration of the facts and 

circumstances. 

Commenters asserted that proposed 8 

CFR 208.15(a)(1) would replace a clear 

standard that is well-established in 

Federal case law and international law 

with an ambiguous standard that would 

require adjudicators to speculate in 

regard to what applicants could have 

done in third countries through which 

they transited. Accordingly, 

commenters argued, the proposed 

provision would result in lengthy 

litigation. One commenter asserted that 

the proposed provision is not legally 

defensible, as evidenced by the recent 

transit bar litigation invalidating a 

similar provision. 

Commenters also stated opposition to 

proposed 8 CFR 208.15(a)(2). 

Commenters expressed concern that the 

proposed one-year bar would apply 

even if there is no possibility of ever 

obtaining a permanent or indefinitely 

renewable status in the country. 

Commenters also asserted that the 

proposed provision would 

inappropriately exclude most asylum 

seekers who were returned to Mexico 

under MPP because MPP often requires 

aliens to wait in Mexico for more than 

a year. Another commenter stated that 

UNHCR estimates that approximately 16 

million refugees have spent five years in 

countries where they could not be 

considered firmly resettled and that 

they would be inappropriately barred 

from asylum under the proposed 

provision. Commenters expressed 

concerns that the proposed provision 

does not include exceptions for 

individuals who are victims of 

trafficking, lack the financial means to 

leave a third country, or fear 

persecution in the third country. 

Commenters asserted that examples in 

the United States demonstrate the 

problems with proposed 8 CFR 

208.15(a)(2). Commenters asserted that 

recipients of Deferred Action for 

Childhood Arrivals—who commenters 

noted are granted permission to stay in 

the United States in two-year 

increments—would be considered 

firmly resettled under the proposed rule 

even though their status could be 

rescinded at any time. Second, 

commenters similarly asserted that 

many undocumented individuals in the 

United States have lived here for 

decades, but that they cannot be 

considered firmly resettled because they 

are denied the opportunity to fully and 

meaningfully participate in public life 

and they live and work under the fear 

of removal. 

Commenters opposed proposed 8 CFR 

208.15(a)(3). One commenter stated that 

the proposed provision is unclear as to 

when presence in a country of 

citizenship occurred. The commenter 

asked, ‘‘[d]oes it mean that the applicant 

must have been present there sometime 

before coming to the United States, 

anytime in their whole lives?’’ The 

commenter asserted that it is unfair and 

unreasonable to consider someone 

firmly resettled in a country of 

citizenship without also considering 

factors such as whether such individual 

has the right to reside in the country 

and could be reasonably expected to do 

so. Commenters asserted that proposed 

8 CFR 208.15(b) conflicts with Matter of 

A–G–G–, 25 I&N Dec. 486 (BIA 2011), 

which commenters asserted requires 

DHS to present evidence that a 

mandatory bar applies. Commenters 

stated that, under the proposed 

provision, if DHS or an immigration 

judge raises the issue that the firm 

resettlement bar might apply, then the 

burden of proof shifts to the respondent. 

This burden shifting, commenters 

argued, would increase the number of 


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68The Departments acknowledge that the concept 

of firm resettlement is a statutory bar to both 

refugee admission, INA 207(c)(1), 8 U.S.C. 

1157(c)(1), and the granting of asylum, INA 

208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi). The two 

separate bars were enacted 16 years apart. 

69Although the Board in Matter of A–G–G–, 25 

I&N Dec. at 501, asserted that its framework follows 

the language of 8 CFR 1208.15, nothing in the text 

of that regulation actually outlines a particular 

framework to follow when considering issues of 

firm resettlement, and the regulation certainly does 

not delineate the four steps put forth by the Board. 

Further, the Board’s reading of 8 CFR 1240.8(d) to 

suggest that DHS bears the initial burden at step one 

of its framework of establishing evidence that the 

firm resettlement bar applies, Matter of A–G–G–, 25 

I&N Dec. at 502, is likewise atextual, and is further 

called into significant doubt by a recent decision of 

the Attorney General, see Matter of Negusie, 28 I&N 

Dec. 120, 154–55 (A.G. 2020) (‘‘Consistent with the 

clear statutory mandate that an alien has the burden 

of proving eligibility for immigration relief or 

protection, the regulations make plain that if 

evidence in the record indicates that [a] bar may 

apply, then the applicant bears the additional 

burden of proving by a preponderance of the 

evidence that it does not. Although the evidence in 

the record must raise the possibility that the bar 

‘may apply,’ id. § 1240.8(d), neither the statutory 

nor the regulatory scheme requires an extensive or 

particularized showing of the bar’s potential 

applicability, and evidence suggesting the bar’s 

applicability may come from either party. While the 

immigration judge must determine whether the 

evidence indicates that the . . . bar may apply— 

and, thus, whether the alien bears the burden of 

proving its inapplicability—that determination is an 

evidentiary one that does not stem from any burden 

on DHS. This conclusion is underscored by other 

statutory and regulatory provisions that specify 

when DHS is required to assume an evidentiary 

burden. Placing an initial burden on DHS to 

establish the applicability of the . . . bar would be 

contrary to the relevant statutory and regulatory 

scheme, and would unnecessarily tax its limited 

resources.’’ (footnote, citations, and internal 

quotations omitted)). 

70The Board’s efforts to refine the concept of an 

‘‘offer’’ have not improved the clarity of the 

application of the firm resettlement bar, as 

adjudicators may understandably be confused about 

how to consider whether an alien accepted an offer 

that was ‘‘available,’’ but not necessarily made. 

Matter of A–G–G–, 25 I&N Dec. at 502–03. Similarly, 

the Board adopted a ‘‘totality of the evidence’’ 

standard, id. at 503, but did not explain if that 

standard was intended to encompass the Federal 

courts’ ‘‘totality of the circumstances’’ approach or 

to constitute something different. 

71As discussed herein, the Departments 

recognize that other parts of Matter of A–G–G– are 

superseded by this rule because, inter alia, they are 

unwieldy to apply, in tension with other 

regulations or with other parts of the decision itself, 

do not represent the best implementation of the 

statute, do not appreciate the actual availability of 

firm resettlement in many countries, and are 

outweighed by the benefits of the rule as a policy 

matter. Thus, the Departments have provided 

‘‘reasoned explanation[s]’’ for their departures from 

Matter of A–G–G– to the extent that there are actual 

departures. See Encino Motorcars, LLC, 136 S. Ct. 

at 2125 (citing Brand X, 545 U.S. at 981–82). 

unjust asylum application denials 

because pro se asylum seekers— 

especially non-English speakers and 

detainees—lack access to the knowledge 

or resources necessary to satisfy their 

burden of proof. Moreover, one 

commenter stated that if the proposed 

provision grants authority to DHS 

counsel to determine that firm 

resettlement applies, even if an 

immigration judge disagrees, then the 

subsection would inappropriately usurp 

immigration judges’ authority. 

One commenter asserted that the 

proposed rule would inappropriately 

permit the firm resettlement 

circumstances of a parent to be imputed 

to children and that a child’s case must 

be considered separately from his or her 

parents’ cases. Commenters similarly 

asserted that it is unreasonable to expect 

children to comport their movements 

and behavior in accordance with the 

proposed regulation. 

Commenters noted that refugees—in 

addition to asylum applicants—are 

subject to a statutory bar based on firm 

resettlement. See INA 207(c)(1), 8 U.S.C. 

1157(c)(1). At least one commenter 

suggested that refugee admission 

applicants and asylum applicants 

should be subject to the same standards. 

Commenters noted that, because 

Congress enacted laws to protect 

refugees and intended the firm 

resettlement bar to exclude refugees 

from protection only in narrow 

circumstances, the proposed standard 

for firm resettlement was an ‘‘affront to 

Congressional intent.’’ 

Response: Despite a lengthy history of 

international law, regulatory 

enactments, and circuit court 

interpretations, 

see Matter of A–G–G–, 25 I&N Dec. at 

489–501 (explaining firm resettlement 

history), Congress ultimately codified 

the firm resettlement bar to asylum in 

IIRIRA without including any specific 

firm resettlement requirements, just as it 

had previously codified a firm 

resettlement bar to refugee admission 

without any specific requirements, INA 

207(c)(1), 8 U.S.C. 1157(c)(1). Rather, 

the statutory language only states that 

asylum shall not be granted to an alien 

who ‘‘was firmly resettled in another 

country prior to arriving in the United 

States.’’ INA 208(b)(2)(A)(vi), 8 U.S.C. 

1158(b)(2)(A)(vi). Accordingly, the 

Departments are using their regulatory 

authority to interpret this ambiguous 

statutory language.68 See Matter of 

R–A–, 24 I&N Dec. at 631 (explaining 

that agencies are not bound by prior 

judicial interpretations of ambiguous 

statutory interpretations because there is 

a presumption that Congress left 

statutory ambiguity for the agencies to 

resolve). A clearer interpretation will 

help adjudicators in making firm 

resettlement determinations. Circuit 

courts have previously provided 

diverging interpretations of the firm 

resettlement requirements. See Matter of 

A–G–G–, 25 I&N Dec. at 495–500 

(explaining differing circuit court 

approaches under the prior firm 

resettlement regulations). 

In addition, as discussed further 

herein, efforts by the Board to provide 

clarity have not been fully successful, as 

its four-step framework reflects an 

unwieldy amalgamation of two 

competing approaches offered by 

Federal courts: The ‘‘direct offer 

approach’’ and the ‘‘totality of the 

circumstances approach.’’ Id. at 496–98, 

501. Further, as described more fully 

below, its framework is not directed by 

any applicable statute or regulation,69

contains internal tension, is in tension 

with other regulations regarding the 

parties’ burdens, introduces ambiguous 

concepts such as indirect evidence of an 

offer of firm resettlement of ‘‘a sufficient 

level of clarity and force,’’ id. at 502, 

and relies principally on the concepts of 

an ‘‘offer’’ 70 and of ‘‘acceptance’’ of firm 

resettlement, even though the INA does 

not require an offer or acceptance for the 

provisions of INA 208(b)(2)(A)(vi), 8 

U.S.C. 1158(b)(2)(A)(ii), to apply. See 

Matter of A–G–G–, 25 I&N Dec. at 501– 

03 (discussing the various aspects of its 

four-step framework). Ultimately, the 

best reading of the Board’s cases is that 

the availability of some type of 

permanent legal immigration status or 

any non-permanent but indefinitely 

renewable legal immigration status— 

regardless of whether the alien applies 

for such status or has such status 

offered—is sufficient to raise the 

possibility of the firm resettlement bar, 

and that reading is incorporated into the 

rule.71 See id. at 503 (‘‘The regulations 

only require that an offer of firm 

resettlement was available, not that the 

alien accepted the offer.’’). Based on 

these considerations and others, as 

described more fully below, the 

Departments have concluded that the 

current framework—with its case-bycase development and four-step 

framework that is divorced from any 

statute or regulation—invites confusion 

and inconsistent results because of 

immigration judges’ potentially 

subjective judgments about how the 

framework should apply to the 

particular evidence in any given case. 

The Departments accordingly believe 

that the rule-based approach contained 

in this final regulation is more 

appropriate. See Lopez v. Davis, 531 

U.S. 230, 244 (2001) (observing that ‘‘a 

single rulemaking proceeding’’ may 

allow an agency to more ‘‘fairly and 

efficiently’’ address an issue than would 

‘‘case-by-case decisionmaking’’ 

(quotation marks omitted)). 

In interpreting the statutory language, 

the Departments considered the history 


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72 In comparison to the NPRM, this final rule 

expands the language in 8 CFR 208.15(a)(1) and 

1208.15(a)(1) by breaking the first ground into three 

subparagraphs and changing the syntax to improve 

readability and clarity and to avoid confusion. The 

changes in the final rule are stylistic and do not 

reflect an intent to make a substantive change from 

the NPRM regarding 8 CFR 208.15(a)(1) and 

1208.15(a)(1). 

73By requiring that an alien live in any ‘‘one’’ 

third country for more than a year before triggering 

this ground, the Departments also recognize that it 

would not necessarily exclude aliens who make 

their flight in stages, Yee Chien Woo, 402 U.S. at 

57 n.6, as aliens who remain in multiple countries 

over multiple years before coming to the United 

States are unlikely to have their travel to the United 

States viewed as ‘‘reasonably proximate’’ to their 

flight. 

74An alien who physically resided voluntarily, 

and without continuing to suffer persecution, in 

Mexico for one year or more after departing the 

alien’s country of nationality or last habitual 

residence and prior to arrival in or entry into the 

United States would potentially be subject to the 

bar, regardless of whether the alien was placed in 

MPP upon arrival in the United States. 

of the firm resettlement concept and 

determined that prior interpretations do 

not fully address the need for clarity 

and specific delineation of the meaning 

of firm resettlement. Moreover, prior 

adjudicatory interpretations do not 

effectively appreciate the availability of 

firm resettlement in many countries. 

Thus, the Departments believe that a 

broader interpretation of firm 

resettlement is necessary to ensure that 

the United States’ overburdened asylum 

system is available to those with a 

genuine need for protection, and not 

those who want to live in the United 

States for other reasons and simply use 

the asylum process as a way to achieve 

those goals. See 85 FR at 36285–86. The 

Departments’ interpretation also 

comports with the overall purpose of 

the asylum statute, which is ‘‘not to 

provide [applicants] with a broader 

choice of safe homelands, but rather, to 

protect [refugees] with nowhere else to 

turn.’’ Matter of B–R–, 26 I&N Dec. at 

122 (quotation marks omitted). 

The Departments’ definition creates 

three grounds for a finding of firm 

resettlement.72 The first ground 

captures aliens who have resided, or 

could have resided, permanently or 

indefinitely in a country but who have 

chosen not to pursue such 

opportunities. The Departments have 

determined that the firm resettlement 

bar should apply regardless of whether 

the alien received a direct offer of 

resettlement from the third country. The 

Departments believe that aliens should 

reasonably be required to pursue 

settlement opportunities when fleeing 

persecution and entering a new country, 

rather than forum shopping for their 

destination. See Matter of A–G–G–, 25 

I&N Dec. at 503 (explaining the purpose 

of the firm resettlement bar ‘‘is to limit 

refugee protection to those with 

nowhere else to turn’’). This 

requirement is also supported by the 

fact that, as discussed in the NPRM, 43 

additional countries have signed the 

Refugee Convention since 1990, 

evincing an increasing ability of an alien 

to find safe haven outside his or her 

home country. See 85 FR at 36285–86 & 

n.41. Contrary to commenters’ claims, 

this first ground does not apply to aliens 

if the third country grants only 

temporary or unstable statuses. For the 

first ground of the firm resettlement bar 

to apply, the alien must be able to reside 

permanently or indefinitely in the third 

country, and temporary or unstable 

statuses would not meet that definition. 

Similarly, in order for this first ground 

to apply to aliens who ‘‘could have’’ 

resided in a permanent or indefinite 

status, the immigration judge must make 

a finding that the alien was eligible for, 

and otherwise would be granted, 

permanent or indefinite status under the 

laws of the third country. Moreover, the 

Departments disagree with commenters 

that the rule should retain the exception 

for aliens who reside in a third country 

but have the conditions of their stay 

‘‘substantially and consciously 

restricted.’’ See 8 CFR 1208.15(b) 

(current). The Departments note that the 

language of the current regulation is 

more apt to cause confusion because it 

is not clear why—or perhaps even 

how—a country would offer citizenship 

or permanent legal residence to 

someone yet ‘‘substantially and 

consciously’’ restrict that person’s 

residence. Further, the Departments 

believe that interpreting the firm 

resettlement bar to apply to any type of 

permanent or indefinite status advances 

the goal of limiting asylum forum 

shopping by persons who have the 

ability to live in a third country. 

The second ground captures aliens 

who are living for an extended period of 

more than one year in a third country 

without suffering persecution. By living 

safely in a third country for more than 

a year without suffering persecution, the 

alien has evinced the ability to live long 

term in that country and is thereby 

‘‘firmly’’ resettled as interpreted by the 

Departments. The dictionary definition 

of ‘‘firm’’ is ‘‘securely or solidly fixed in 

place,’’ not ‘‘uncertain,’’ and ‘‘not 

subject to change or revision.’’ Firm, 

Merriam Webster, https:// 

www.merriam-webster.com/dictionary/ 

firm. The Departments believe that this 

ground reasonably meets this definition, 

as an alien who is living in a third 

country for more than a year can be 

considered to be ‘‘fixed in place’’ and 

not thought to be present in the third 

country only temporarily. 

Consistent with the purpose of the 

asylum statute, the Departments believe 

that asylum should not be made 

available to persons who ‘‘have long 

since abandoned’’ traveling to the 

United States in their flight from 

persecution. See Rosenberg v. Yee Chien 

Woo, 402 U.S. 49, 57 n.6 (1971). Rather, 

travel to the United States should be 

‘‘reasonably proximate’’ to the flight 

from persecution and not be interrupted 

by ‘‘intervening residence in a third 

country.’’ Id.73 In including this ground, 

the Departments do not believe that 

legal presence should be a requirement 

of firm resettlement, as persons can live 

indefinitely without status in a country. 

For example, according to a 2017 study, 

the median duration of residence for the 

United States’ undocumented 

population is approximately 15 years. 

See Pew Research Center, Mexicans 

decline to less than half the U.S. 

unauthorized immigrant population for 

the first time (June 12, 2019), https:// 

www.pewresearch.org/fact-tank/2019/ 

06/12/us-unauthorized-immigrantpopulation-2017/. It is reasonable to 

conclude that such persons should be 

considered ‘‘firmly resettled’’ in the 

United States and do not intend to live 

in the United States only temporarily, 

and by the same reasoning, aliens who 

have resided for long periods in other 

countries—even without legal presence 

or status—can similarly be considered 

‘‘firmly resettled.’’ Further, spending 

more than a year in a third country 

shows that the alien can support himself 

or herself or has the ability to receive 

necessary support. Separately, the 

Departments note that, contrary to 

commenters’ concerns, the second 

ground would not apply to physical 

residence in Mexico after an alien was 

returned to Mexico under the MPP, 

because such aliens would already be 

considered to have arrived in the United 

States. Thus, time spent in Mexico 

solely as a direct result of returns to 

Mexico after being placed in MPP will 

not be considered for purposes of that 

specific element of the firm resettlement 

bar.74

The Departments also recognize that 

this second ground does not follow the 

language of the Refugee Convention or 

the Refugee Protocol, which require the 

alien to be recognized by the third 

country as possessing the same rights 

and obligations as citizens of that 

country. See 1951 Convention Relating 

to the Status of Refugees, Art. 1(E). In 

codifying the statutory firm resettlement 

bar as part of IIRIRA, however, Congress 


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75The Board’s framework also contains internal 

tension that has resulted in confusion on this point. 

In Matter of A–G–G–, the Board indicated that DHS 

bears the burden of making a prima facie showing 

that an offer for firm resettlement exists and will 

typically do so through the submission of 

documentary evidence. Matter of A–G–G–, 25 I&N 

Dec. at 501 (‘‘DHS should first secure and produce 

direct evidence of governmental documents 

indicating an alien’s ability to stay in a country 

indefinitely.’’). It then went on to say, however, that 

prima facie evidence may already be part of the 

record as evidence, including testimony, which is 

typically offered by a respondent, not DHS. Id. at 

502 n.17. Consequently, immigration judges may 

become confused about how to apply the firm 

resettlement bar in cases in which the evidence of 

record submitted by a respondent, including the 

respondent’s testimony, indicates that the bar may 

apply but in which DHS has not affirmatively 

produced its own evidence of firm resettlement. 

This rule resolves that tension, reaffirms that 

immigration judges should follow the requirements 

of 8 CFR 1240.8 as appropriate, and reiterates that 

evidence in the record may raise the applicability 

of 8 CFR 1240.8 regardless of who submitted the 

evidence. 

did not include such a requirement, 

and, as a result, the Departments have 

chosen to interpret this ambiguous 

statutory language as not requiring the 

third country to provide the alien with 

rights comparable to that of citizens. See 

Matter of R–A–, 24 I&N Dec. at 631 

(explaining presumption that Congress 

left statutory ambiguity for the agencies 

to resolve (citing Brand X, 545 U.S. at 

982)). 

The third ground captures aliens who 

maintain, or maintained and then later 

renounced, citizenship in a third 

country and were present in that 

country after fleeing their home country. 

By possessing citizenship in a third 

country and being physically present in 

that country, the alien has established 

that he or she has the ability to live with 

full citizenship rights in a third country, 

negating his or her need to apply for 

asylum in the United States. In response 

to a commenter’s concerns about the 

timing of the alien’s presence in the 

third country, the Departments clarify 

that the physical presence in the third 

country must occur after the alien leaves 

the home country where the alleged 

persecution occurred or where the wellfounded fear of persecution would 

occur and before arriving in the United 

States. 

Regarding commenters’ concerns 

about the burden of proof, the 

Departments note that the existing 

burden framework outlined by the BIA 

is, at the least, not required by statute 

and appears to be in significant tension 

with existing regulations.75 The burden 

associated with the firm resettlement 

bar as applied in removal proceedings is 

clarified in the existing language of 8 

CFR 1240.8(d), which provides that the 

respondent has the burden of 

establishing eligibility for any requested 

benefit or privilege. That regulation then 

states that, if ‘‘the evidence indicates 

that one or more of the grounds for 

mandatory denial’’ of relief may apply, 

the alien has the burden of proving that 

such grounds do not apply. 8 CFR 

1240.8(d). The existing regulation is 

thus clear that, if the evidence indicates 

that the firm resettlement bar may 

apply, then an applicant has the burden 

of proving that it does not. Although the 

evidence in the record must itself 

support the applicability of a bar, the 

regulations do not specify who must 

introduce that evidence, and relevant 

evidence may come from either party. 

Moreover, 8 CFR 1240.8(d) does not 

specify who may raise an issue of 

eligibility, only that the issue may be 

raised when the evidence indicates that 

a ground should apply. Because it is 

illogical to expect an alien applying for 

asylum to raise the issue that he or she 

is barred from receiving asylum, the rule 

appropriately acknowledges the reality 

that either DHS or the immigration 

judge may raise the issue based on the 

evidence, regardless of who submitted 

the evidence. 

Similarly, although the immigration 

judge must determine whether the 

evidence indicates that the firm 

resettlement bar may apply—and, thus, 

whether the alien bears the burden of 

proving that it does not apply—that 

determination is simply an evidentiary 

one and does not place any burden on 

DHS. As noted, evidence that ‘‘indicates 

that one or more of the grounds for 

mandatory denial of the application for 

relief may apply [e.g., the firm 

resettlement bar],’’ 8 CFR 1240.8(d), 

may be in the record based upon 

submissions made by either party; the 

regulation requires only that evidence 

be in the record, not that it be submitted 

by DHS. Put more simply, the 

regulations do not place an independent 

burden on DHS to establish a prima 

facie case. This conclusion is 

underscored by other regulations that, 

in contrast, specify when DHS is 

required to assume an evidentiary 

burden. See, e.g., 8 CFR 208.13(b)(1)(ii) 

(‘‘Burden of proof. In cases in which an 

applicant has demonstrated past 

persecution under paragraph (b)(1) of 

this section, [DHS] shall bear the burden 

of establishing by a preponderance of 

the evidence the requirements of 

paragraphs (b)(1)(i)(A) or (B) of this 

section.’’). Placing a prima facie burden 

on DHS would be contrary to the 

relevant regulatory scheme and would 

unnecessarily tax the agency’s limited 

resources without any statutory or 

regulatory justification, especially when 

‘‘[t]he specific facts supporting a 

petitioner’s asylum claim . . . are 

peculiarly within the petitioner’s 

grasp.’’ Angov, 788 F.3d at 901. To the 

extent that commenters asserted that 

circuit case law conflicts with the 

Departments’ rule, such conflicts would 

warrant re-evaluation in appropriate 

cases by the circuits under wellestablished principles. See Brand X, 545 

U.S. at 982. Further, as noted in the 

NPRM, 85 FR at 36286, the rule 

overrules prior BIA decisions that are 

inconsistent, in accordance with wellestablished principles. See Encino 

Motorcars, LLC, 136 S. Ct. at 2125 

(‘‘Agencies are free to change their 

existing policies as long as they provide 

a reasoned explanation for the change.’’ 

(citing Brand X, 545 U.S. at 981–82)). 

In response to one commenter’s 

concerns, the burden of proof provision 

does not allow DHS to make the final 

determination on whether the firm 

resettlement bar applies in EOIR 

proceedings; that authority continues to 

reside with DOJ for aliens whose asylum 

applications are referred for review by 

an immigration judge. See 8 CFR 

208.14(c)(1), 1003.10(b), 1240.1(a)(1)(ii). 

In response to concerns about 

imputing parents’ firm resettlement to 

their minor children, the Departments 

note that the BIA has imputed parental 

attributes to children under other INA 

provisions on multiple occasions. See, 

e.g., Holder, 566 U.S. at 595–96 (2012) 

(describing various provisions of the Act 

in which parental attributes are imputed 

to children). Moreover, as noted in the 

NPRM, 85 FR at 36286, although the 

Departments have not previously 

established a settled policy regarding 

the imputation of the firm resettlement 

of parents to a child, the imputation in 

this rule is consistent with both case 

law and recognition of the practical 

reality that a child generally cannot 

form a legal intent to remain in one 

place. See, e.g., Matter of Ng, 12 I&N 

Dec. 411, 412 (Reg’l Comm’r 1967) (firm 

resettlement of father is imputed to a 

child who resided with his resettled 

family); see also Vang v. INS, 146 F.3d 

1114, 1116–17 (9th Cir. 1998) (‘‘We 

follow the same principle in 

determining whether a minor has firmly 

resettled in another country, i.e., we 

look to whether the minor’s parents 

have firmly resettled in a foreign 

country before coming to the United 

States, and then derivatively attribute 

the parents’ status to the minor.’’). 

Here, it is reasonable to assume that 

minor children who are traveling with 

their parents would remain with their 

parents in any third country and, 

therefore, should also be subject to the 

firm resettlement bar. Moreover, the rule 

provides an exception when the alien 


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76The Department’s experience in administering 

the firm resettlement bar indicates that cases in 

which a parent’s firm resettlement would not be 

imputed to a minor child would be rare. Even in 

those rare cases, however, the Departments’ use of 

child-appropriate procedures, as discussed 

elsewhere in the rule, which take into account age, 

stage of language development, background, and 

level of sophistication, would assist the child in 

ensuring that the child’s claim is appropriately 

considered. See, e.g., USCIS, Interviewing 

Procedures for Minor Applicants (Aug. 6, 2020), 

https://www.uscis.gov/humanitarian/refugees-andasylum/asylum/minor-children-applying-forasylum-by-themselves. 

child can establish that he or she could 

not have derived any permanent legal 

immigration status or any nonpermanent but indefinitely renewable 

temporary legal immigration status 

(such as asylee, refugee, or similar 

status) from his or her parent.76 See 85 

FR at 36294; 8 CFR 208.15(b), 

1208.15(b). 

The Departments acknowledge 

comments noting that the NPRM altered 

the definition of ‘‘firm resettlement’’ 

applicable to asylum applicants, but did 

not alter the definition applicable to 

refugee admission applicants, which is 

a distinction the Departments noted in 

the NPRM. 85 FR at 36285 n.40. The 

Departments did not propose to change 

8 CFR 207.1(b) in the NPRM, see id., 

and they do not believe such a change 

is warranted in this final rule, 

notwithstanding commenters’ concerns 

regarding the two definitions. 

Although the statutory provisions 

applying the firm resettlement bar in the 

refugee and asylum contexts are 

virtually identical, ‘‘[a] given term in the 

same statute may take on distinct 

characters from association with distinct 

statutory objects calling for different 

implementation strategies.’’ Envtl. Def. 

v. Duke Energy Corp., 549 U.S. 561, 574 

(2007). The United States Refugee 

Admissions Program (‘‘USRAP’’) and 

the asylum system serve distinct 

missions and populations and, thus, 

warrant different approaches. The 

asylum statute is not designed ‘‘to 

provide [applicants] with a broader 

choice of safe homelands, but rather, to 

protect [refugees] with nowhere else to 

turn.’’ Matter of B–R–, 26 I&N Dec. at 

122 (quotation marks omitted). In 

contrast, the USRAP has long focused 

on resolving protracted refugee 

situations and providing relief to 

refugees who have not been able to find 

a durable solution to their need for 

protection in the country of first flight. 

Moreover, due to the lengthy referral, 

vetting, and application process in the 

refugee resettlement program, see 

generally USCIS, Refugee Processing 

and Security Screening (June 3, 2020), 

https://www.uscis.gov/humanitarian/ 

refugees-and-asylum/refugees/refugeeprocessing-and-security-screening, time 

spent in a third country or otherwise 

awaiting overseas resettlement may not 

necessarily indicate that an alien was 

firmly resettled in the country hosting 

such populations. 

Further, as a program explicitly 

addressing persons in foreign 

countries—rather than a form of relief 

available to aliens who arrive at or are 

inside the United States—the USRAP 

implicates issues of foreign relations 

and diplomacy in ways different than 

the asylum program. Additionally, 

although the current regulatory 

definitions of ‘‘firm resettlement’’ are 

similar, compare 8 CFR 207.1(b), with 8 

CFR 208.15 and 1208.15, they are not 

identical. Rather, the definition 

applicable to refugee admission 

applicants requires that the alien 

entered the country of putative 

resettlement ‘‘as a consequence of his or 

her flight from persecution,’’ 8 CFR 

207.1(b), whereas the definition 

applicable to asylum applicants 

indicates that entry into a country that 

was a necessary consequence of flight 

from persecution is one element of a 

potential exception to the general 

definition of ‘‘firm resettlement.’’ In 

other words, existing regulations 

already recognize distinctions in the 

definitions applicable to the two 

programs. 

In short, although the Departments 

acknowledge commenters’ concerns 

about the two different definitions, they 

do not believe changes to 8 CFR 207.1(b) 

are warranted at the present time. 

Nevertheless, the Departments do 

expect to study the issue closely and, if 

appropriate, may propose changes at a 

future date. 

Finally, the Departments are noting 

two additional changes that the final 

rule makes regarding the issue of firm 

resettlement. First, consistent with the 

Departments’ understanding that time 

spent in Mexico solely as a direct result 

of being returned to Mexico pursuant to 

section 235(b)(2)(C) of the Act or of 

being subject to metering would not be 

counted for purposes of that specific 

element of the firm resettlement bar, 

that point is being clarified explicitly in 

this final rule. Second, EOIR is making 

a conforming change to 8 CFR 1244.4(b) 

to align it with the both the appropriate 

statutory citation and the corresponding 

language in 8 CFR 244.4(b). Aliens 

described in INA 208(b)(2)(A), 8 U.S.C. 

1158(b)(2)(A), including those subject to 

the firm resettlement bar contained in 

INA 208(b)(2)(A)(vi), 8 U.S.C. 

1158(b)(2)(A)(vi), are ineligible for TPS. 

That statutory ineligibility ground is 

incorporated into regulations in both 

chapter I and chapter V of title 8; 

however, while the title I provision, 8 

CFR 244.4(b), cites the correct statutory 

provision, INA 208(b)(2)(A)(vi), 8 U.S.C. 

1158(b)(2)(A)(vi), the title V provision, 8 

CFR 1244.4(b), maintains an outdated 

reference to an incorrect statutory 

provision. The final rule corrects that 

outdated reference. 

4.9. ‘‘Rogue Officials’’/‘‘Color of Law’’ 

Comment: As an initial matter, 

commenters asserted that the terms 

‘‘color of law’’ and ‘‘official acting in his 

or her official capacity’’ are not 

ambiguous and therefore are not open to 

agency interpretation. Commenters 

asserted that the rule seeks to codify the 

BIA’s decision in Matter of O–F–A–S–, 

27 I&N Dec. 709 (BIA 2019), vacated by 

28 I&N Dec. 35, but that the standard set 

out in Matter of O–F–A–S– is an 

impossible burden. Specifically, 

commenters averred that ‘‘if an official 

claims to be acting in an official 

capacity, is wearing an official uniform, 

or otherwise makes it known to the 

applicant that [he or she is] a 

government official, a CAT applicant 

would have no reason to know whether 

the official is acting lawfully or as a 

‘rogue’ official.’’ Commenters argued 

that to meet his or her burden, an 

applicant would have to obtain detailed 

information from a government official 

who has tortured or threatened him or 

her in order to establish that the actor 

was not acting in a rogue capacity. 

Commenters also argued that the 

phrase ‘‘under color of law’’ calls for a 

more nuanced determination than the 

analysis required by the proposed 

regulation or the BIA’s decision in 

Matter of O–F–A–S– would indicate. 

Quoting Screws v. United States, 325 

U.S. 91, 111 (1945), commenters stated 

that ‘‘[i]t is clear that under ‘color’ of 

law means under ‘pretense’ of law 

. . . . If, as suggested, the statute was 

designed to embrace only action which 

the State in fact authorized, the words 

‘under color of any law’ were hardly apt 

words to express the idea.’’ Following 

this analysis, commenters asserted that 

any proposed rule must emphasize that 

acting ‘‘under color of law’’ does not 

require the government official to be on 

duty, following orders, or to be acting 

on a matter of official government 

business. 

Commenters similarly claimed that 

the proposed definition of ‘‘rogue 

official’’ is contrary to Federal and state 

jurisprudence because the proposed rule 

dismisses and invalidates the entire 

concept of ‘‘color of law’’ as being 

synonymous with ‘‘acting in his or her 

official capacity.’’ Commenters asserted 

that the Supreme Court views the terms 

as interchangeable because the 


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77To the extent commenters’ concerns with the 

ability to comment may relate to the period of time 

provided for comment, the Departments responses 

are set forth below in Section II.C.6.3 of this 

preamble. 

‘‘traditional definition of acting under 

color of state law requires that the 

defendant . . . have exercised power 

‘possessed by virtue of state law and 

made possible only because the 

wrongdoer is clothed with the authority 

of state law.’ ’’ West v. Atkins, 487 U.S. 

42, 49 (1988) (quoting United States v. 

Classic, 313 U.S. 299, 326 (1941)). 

Commenters explained that, in 

alignment with the Supreme Court’s 

interpretation, some circuits have 

defined ‘‘color of law’’ to mean the 

‘‘misuse of power, possessed by virtue 

of state law and made possible only 

because the wrongdoer is clothed with 

the authority of state law.’’ See 

Iruegas-Valdez v. Yates, 846 F.3d 806, 

812–13 (5th Cir. 2017) (finding that the 

public official in question need not be 

high-level or follow ‘‘an officially 

sanctioned state action’’); Garcia v. 

Holder, 756 F.3d 885, 891–92 (5th Cir. 

2014); Ramirez-Peyro v. Holder, 574 

F.3d 893, 900–01 (8th Cir. 2009). Citing 

the Eighth Circuit, commenters asserted 

that this means that ‘‘the focus is 

whether the official uses their position 

of authority to further their actions, 

even if for ‘personal’ motives.’’ 

Ramirez-Peyro, 574 F.3d at 900–01. 

Commenters further asserted that the 

color-of-law analysis should be one of 

‘‘nexus’’—i.e., ‘‘does the conduct relate 

to the offender’s official duties?’’ 

Commenters further quoted RamirezPeyro, 574 F.3d at 901, stating that ‘‘it 

is not contrary to the purposes of the 

[Convention] and the under-color-of-law 

standard to hold Mexico responsible for 

the acts of its officials, including lowlevel ones, even when those officials act 

in contravention of the nation’s will and 

despite the fact that the actions may 

take place in circumstances where the 

officials should be acting on behalf of 

the state in another, legitimate, way.’’ 

Quoting Khouzam v. Ashcroft, 361 F.3d 

161, 171 (2d Cir. 2004), commenters 

asserted that, ‘‘when it is a public 

official who inflicts severe pain or 

suffering, it is only in exceptional cases 

that we can expect to be able to 

conclude that the acts do not constitute 

torture by reason of the official acting 

for purely private reasons.’’ Commenters 

also cited a recent decision from the 

Ninth Circuit Court of Appeals, in 

which the court held that even a rogue 

official is still a public official for 

purposes of the CAT. See XochihuaJaimes v. Barr, 962 F.3d 1175, 1184 (9th 

Cir. 2020) (‘‘We rejected BIA’s ‘rogue 

official’ exception as inconsistent with 

Madrigal [, 716 F.3d at 506.]’’). 

Ultimately, commenters argued that 

the CAT requires protection for those 

that have suffered any act of torture at 

the hands of state officials, even ‘‘rogue 

officials,’’ as such evidence 

demonstrates that the foreign state 

cannot or will not protect the applicant 

from torture. Moreover, the commenter 

asserted that it does not matter that 

some countries cannot control large 

numbers of rogue officials. See, e.g., 

Mendoza-Sanchez v. Lynch, 808 F.3d 

1182, 1185 (7th Cir. 2015) (‘‘It’s simply 

not enough to bar removal if the 

[Mexican] government may be trying, 

but without much success, to prevent 

police from torturing citizens at the 

behest of drug gangs.’’). Commenters 

averred that the correct inquiry in CAT 

claims is whether a government official 

committed torture, not whether the 

applicant can demonstrate that the 

official was not acting in a ‘‘rogue 

capacity.’’ 

Commenters stated that the proposed 

changes to the ‘‘rogue official’’ standard 

also conflict with the standard 

established by the Attorney General in 

Matter of O–F–A–S–, 28 I&N Dec. 35 

(A.G. 2020), which was issued 

subsequent to the proposed rule’s 

publication. For example, at least one 

commenter stated that the Attorney 

General ‘‘rejected’’ the use of the term 

‘‘rogue official,’’ while the proposed 

rule would codify the use of the same 

term. Commenters further stated that the 

Attorney General’s decision in Matter of 

O–F–A–S– created difficulty in 

providing comment on the proposed 

rule because it changed the state of the 

law that the rule would affect.77

Commenters argued that exempting 

public officials from the concept of 

acquiescence in instances in which the 

public official ‘‘recklessly disregarded 

the truth, or negligently failed to 

inquire’’ seems indistinguishable from 

‘‘willful blindness,’’ a term recognized 

by the Second, Third, Fourth, Fifth, 

Sixth, Seventh, Eighth, Ninth, and 

Tenth Circuits in the CAT analysis 

context. See, e.g., Khouzam, 361 F.3d at 

170–71; Myrie v. Att’y Gen. of U.S., 855 

F.3d 509, 517 (3rd Cir. 2017), RomeroDonado v. Sessions, 720 Fed. App’x 

693, 698 (4th Cir. 2018); Iruegas-Valdez 

v. Yates, 846 F.3d 806, 812 (5th Cir. 

2017); Torres v. Sessions, 728 Fed. 

App’x 584, 588 (6th Cir. 2018); LozanoZuniga v. Lynch, 832 F.3d 822, 831 (7th 

Cir. 2016); Fuentes-Erazo v. Sessions, 

848 F.3d 847, 852 (8th Cir. 2017); Zheng 

v. Ashcroft, 332 F.3d 1186, 1194–95 (9th 

Cir. 2003); Medina-Velasquez v. 

Sessions, 680 Fed. App’x 744, 750 (10th 

Cir. 2017). Commenters asserted that the 

rule should instead codify this ‘‘nearuniversal standard.’’ Further, 

commenters recommended codifying 

court decisions that have found 

government acquiescence even where 

parts of government have taken 

preventive measures. See, e.g., 

Rodriguez-Molinero v. Lynch, 808 F.3d 

1134, 1139 (7th Cir. 2015) (noting it is 

not required to find the entire Mexican 

government complicit); De La Rosa v. 

Holder, 598 F.3d 103, 110 (2d Cir. 

2010). 

In addition, some commenters argued 

that the standard to demonstrate 

acquiescence is unreasonable because 

applicants would be required to 

demonstrate the legal duties of a 

government official who failed to act 

and also demonstrate whether the 

official was charged with preventing 

those actions but failed to act. 

Commenters asserted this would be an 

impossible standard to meet. 

Commenters also contended that the 

proposed rule’s reliance on the Model 

Penal Code is irrelevant to what might 

occur in a foreign country. 

Commenters argued that the proposed 

rule’s amendments to 8 CFR 

208.18(a)(1), (7) and 1208.18(a)(1), (7) 

will prevent many individuals from 

meeting the burden to establish 

eligibility for protection under the 

regulations issued pursuant to the 

legislation implementing the CAT. 

Commenters were concerned that an 

individual would be unable to 

determine that an officer is a rogue 

officer when ‘‘every discernable fact 

(including but not limited to uniforms, 

weapons, badges, police cars, etc.) 

indicates the officer is legitimate.’’ 

Therefore, commenters asserted, 

requiring this kind of detailed 

information would be unreasonable or 

impossible. Commenters similarly 

asserted that the requirement that an 

applicant demonstrate that the 

government official who has inflicted 

torture did so under color of law and is 

not a rogue official ignores the actual 

circumstances under which people flee. 

Commenters also expressed concern 

that individuals who were tortured 

would have no recourse because they 

would be unable to report the rogue 

official to other potentially rogue 

officials. For example, commenters 

stated that, in many countries (such as 

the Democratic Republic of the Congo), 

members of the police or military are 

intentionally organized into 

paramilitary groups so that the 

government can deny responsibility for 

human rights violations. Commenters 

asserted that, in such circumstances, 

individuals who are subjected to harm 

or in danger of such harm would face an 

insurmountable burden of proof. 


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78 In clarifying this definition of a public official 

as one acting under color of law, the rule also 

makes clear that, for purposes of the CAT 

regulations, pain or suffering inflicted by, or at the 

instigation of or with the consent or acquiescence 

of, a public official is not torture unless the act is 

done while the official is ‘‘acting in his or her 

official capacity. 85 FR at 36287; 8 CFR 208.18(a)(1) 

and 1208.18(a)(1). The Departments recognize that 

this change departs from the language considered 

in Barajas-Romero v. Lynch, 846 F.3d 351, 362–63 

(9th Cir. 2017), which allowed for the consideration 

of a CAT claim even when the alleged torture was 

carried out by a public official not acting in an 

official capacity. Nevertheless, the Departments 

have provided reasoned explanations for this 

regulatory change and, thus, can implement that 

change in accordance with well-established 

principles. See Encino Motorcars, LLC, 136 S. Ct. at 

2125 (‘‘Agencies are free to change their existing 

policies as long as they provide a reasoned 

explanation for the change.’’). 

Commenters asserted that it is extremely 

rare for a government to openly 

acknowledge that it condones torture. 

Rather, when evidence of torture occurs, 

the government will claim the 

perpetrator was a ‘‘bad apple’’ who 

acted on his or her own. Commenters 

asserted that this rule would accept the 

‘‘bad apple’’ excuse on its face, 

preventing torture victims from 

receiving protection. Similarly, 

commenters asserted that most 

governments would not publicly admit 

that they torture their citizens and that, 

without such admissions, it would be 

difficult for victims of torture to prove 

that the injury was caused by a 

government official acting in an official 

capacity as opposed to on the official’s 

private initiative. Commenters also 

asserted that the proposed changes 

appear specifically to restrict typical 

claims from Central America, where 

individuals are ‘‘tortured at the hands of 

non-state actors such as gangs and 

cartels and where government actors are 

frequently complicit in these actions.’’ 

Finally, one commenter asserted that, if 

an agency is going to demand such a 

high burden to establish torture, the 

agency should be the one to take on the 

burden of demonstrating the difference 

because the agency has more capacity to 

obtain the required information than the 

individual requesting the relief. 

Response: The Departments disagree 

with commenters’ assertions that the 

term ‘‘acting in an official capacity’’ is 

unambiguous and thus not subject to 

agency interpretation, as multiple 

decisions from the BIA, the Attorney 

General, and circuit courts attest. As 

demonstrated most recently by the 

Attorney General’s decision in Matter of 

O–F–A–S–, 28 I&N Dec. at 36–37, the 

term ‘‘acting in an official capacity’’ is 

a term that has been subject to different 

interpretations since it was 

implemented in the regulations. See 

Regulations Concerning the Convention 

Against Torture, 64 FR 8490 (Feb. 19, 

1999). As explained by the Attorney 

General subsequent to the NPRM, 

whether an individual acted in an 

official capacity has been the subject of 

multiple inaccurate or imprecise 

formulations. Matter of O–F–A–S–, 28 

I&N Dec. at 36–37. On the one hand, 

then-Attorney General Ashcroft first 

articulated that the official capacity 

requirement means torture ‘‘inflicted 

under color of law.’’ Id. at 36. 

Subsequently, every Federal court of 

appeals to consider the questions has 

read the standard in the same manner. 

Id. at 37 (citing Garcia, 756 F.3d at 891; 

United States v. Belfast, 611 F.3d 783, 

808–09 (11th Cir. 2010); Ramirez-Peyro, 

574 F.3d at 900). However, at the same 

time, some Federal courts have viewed 

immigration judges as applying an 

amorphous, different concept of ‘‘rogue 

official,’’ which has not been accepted 

by circuit courts. Id. (citing Federal 

court of appeals decisions reviewing 

immigration court decisions applying an 

alleged ‘‘rogue official’’ analysis). 

As the NPRM made clear, there is not 

a ‘‘rogue official’’ exception per se for 

CAT protection. 85 FR at 36286. Rather, 

‘‘rogue official’’ is simply a shorthand 

label for an official who is not acting 

under color of law, and the actions of 

such an official are not a basis for CAT 

protection because the individual is not 

acting in an official capacity. The 

Attorney General confirmed this view 

that a ‘‘rogue official’’ is one who is not 

acting under color of law. Matter of O– 

F–A–S–, 28 I&N Dec. at 38 (‘‘To the 

extent the Board used ‘rogue official’ as 

shorthand for someone not acting in an 

official capacity, it accurately stated the 

law. By definition, the actions of such 

officials would not form the basis for a 

cognizable claim under the CAT.’’). 

Thus, there is no longer any confusion 

regarding the definition of a ‘‘rogue 

official,’’ and, consistent with the rule, 

such an official is one who is not acting 

under color of law. 

Nevertheless, as the Attorney General 

also noted, ‘‘continued use of the ‘rogue 

official’ language by the immigration 

courts going forward risks confusion 

. . . because ‘rogue official’ has been 

interpreted to have multiple meanings.’’ 

Id. Accordingly, the Departments are 

removing that term from the final rule 

to avoid any further confusion. Its 

removal, however, does not result in 

any substantive change to the rule. 

Regardless of whether an official who is 

not acting in an official capacity is 

described as a ‘‘rogue official,’’ the 

actions of such an official are not 

performed under color of law and, thus, 

do not form the basis of a cognizable 

claim under the CAT. 

Regarding commenters’ concerns 

about the Attorney General’s decision in 

Matter of O–F–A–S–, the Attorney 

General determined that it was 

necessary to provide a clarification of 

the ambiguous term ‘‘acting in an 

official capacity’’ without waiting for 

the Departments’ NPRM to be finalized. 

That he issued his decision does not 

prevent the Departments from codifying 

that definition subsequently. 

Moreover, the Departments disagree 

that the Attorney General’s decision in 

Matter of O–F–A–S–, 28 I&N Dec. at 35, 

conflicts with the language of this rule. 

In Matter of O–F–A–S–, the Attorney 

General explained that ‘‘acting in an 

official capacity’’ means actions 

performed ‘‘under color of law.’’ Id. 

This rule amends the current regulatory 

language to clarify that the conduct 

supporting a CAT claim must be carried 

out under color of law, which is fully 

consistent with the Attorney General’s 

decision. See 8 CFR 208.18(a)(1), 

1208.18(a)(1) (expressly using the 

phrase ‘‘under color of law’’).78

Therefore, the regulatory text articulates 

that the test for determining whether an 

individual acted in an official capacity 

is whether the official acted under color 

of law. See 8 CFR 208.18(a)(1), 

1208.18(a)(1). 

This amendment aligns the regulatory 

language with congressional intent and 

circuit case law finding that ‘‘in an 

official capacity’’ means ‘‘under color of 

law.’’ The Senate, in recommending that 

the United States ratify the CAT, 

explicitly stated that ‘‘the Convention 

applies only to torture that occurs in the 

context of governmental authority, 

excluding torture that occurs as a 

wholly private act or, in terms more 

familiar in U.S. law, it applies to torture 

inflicted ‘under color of law.’ ’’ S. Exec. 

Rep. No. 101–30, at 14 (1990). Further, 

as stated by the Attorney General in 

Matter of O–F–A–S–, every Federal court 

of appeals to consider the question has 

held that action ‘‘in an official capacity’’ 

means action ‘‘under color of law.’’ 28 

I&N Dec. at 37 (citing Garcia, 756 F.3d 

at 891; Belfast, 611 F.3d at 808–09; 

Ramirez-Peyro, 574 F.3d at 900); see 

also Ali v. Reno, 237 F.3d 591, 597 (6th 

Cir. 2001) (adopting the ‘‘under color of 

law’’ standard in an opinion preceding 

Matter of Y–L–, 24 I&N Dec. 151). 

The Senate’s understanding of 

‘‘acquiescence’’ for purposes of the CAT 

was that a finding of acquiescence 

requires a showing that the public 

official was aware of the act and that the 

public official had a legal duty to 

intervene to prevent the act but failed to 

do so. See S. Exec. Rep. No. 101–30, at 

14 (‘‘In addition, in our view, a public 


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official may be deemed to ‘acquiesce’ in 

a private act of torture only if the act is 

performed with his knowledge and the 

public official has a legal duty to 

intervene to prevent such activity.’’). As 

noted in the NPRM, however, the term 

‘‘awareness’’ has led to some confusion. 

See 85 FR at 36287 (citing Scarlett v. 

Barr, 957 F.3d 316 (2d Cir. 2020)). 

Commenters asserted that the 

Departments, rather than creating a new 

definition for awareness, should instead 

codify the ‘‘willful blindness’’ standard 

as articulated by the circuit courts of 

appeals. But the final rule does just that: 

As noted in the NPRM, the Departments 

proposed to clarify that, in accordance 

with decisions from several courts of 

appeals and the BIA, ‘‘ ‘awareness’—as 

used in the CAT ‘acquiescence’ 

definition—requires a finding of either 

actual knowledge or willful blindness.’’ 

85 FR at 36287; see also 8 CFR 

208.18(a)(1), 1208.18(a)(1). The 

Departments, however, seeking to avoid 

further ambiguity, further define the 

term ‘‘willful blindness’’ to mean that 

the public official or other person acting 

in an official capacity was ‘‘aware of a 

high probability of activity constituting 

torture and deliberately avoided 

learning the truth.’’ 85 FR at 36287. The 

Departments further clarify that it is not 

enough that such a public official acting 

in an official capacity or other person 

acting in an official capacity was 

‘‘mistaken, recklessly disregarded the 

truth, or negligently failed to inquire.’’ 

Id. 

As explained in the NPRM, the 

Departments’ definition of 

‘‘acquiescence’’ aligns with 

congressional intent to require both an 

actus reus and a mens rea. Id. The 

Senate, during ratification of the CAT, 

included in its list of understandings 

the two elements required for a finding 

of acquiescence: Actus reus and mens 

rea. See Convention Against Torture and 

Other Cruel, Inhuman, or Degrading 

Treatment or Punishment, Treaty Doc. 

100–20: Hearing Before the S. Comm. on 

Foreign Relations, S. Hrg. No. 101–718, 

101st Cong., 2d Sess. 14 (1990) (‘‘[T]o be 

culpable under the [CAT] . . . the 

public official must have had prior 

awareness of [the activity constituting 

torture] and must have breached his 

legal responsibility to intervene to 

prevent the activity.’’ (statement of Mark 

Richard, Deputy Assist Att’y Gen., 

Criminal Division, Department of 

Justice)); U.S. Senate Resolution of 

Advice and Consent to Ratification of 

the Convention Against Torture and 

Other Cruel, Inhuman or Degrading 

Treatment or Punishment, 136 Cong. 

Rec. 36198 (1990). The definition 

further aligns with subsequent 

understandings that reduced the 

requirement from knowledge to mere 

awareness. See Zheng, 332 F.3d at 1193 

(‘‘The [Senate Committee on Foreign 

Relations] stated that the purpose of 

requiring awareness, and not 

knowledge, ‘is to make it clear that both 

actual knowledge and ‘willful 

blindness’ fall within the definition of 

the term ‘acquiescence.’ ’’). 

Regarding commenters’ assertions that 

the proposed rule would create a burden 

that would be impossible for an 

applicant to meet, the Departments note 

that, currently, applicants must still 

demonstrate a legal duty and that this 

requirement does not change with this 

final rule. Even when applying the 

‘‘willful blindness’’ standard articulated 

by various circuit courts of appeals, the 

applicant must demonstrate a legal duty 

and that the government official 

breached that legal duty. See, e.g., 

Khouzam, 361 F.3d at 171 (‘‘From all of 

this we discern a clear expression of 

Congressional purpose. In terms of state 

action, torture requires only that 

government officials know of or remain 

willfully blind to an act and thereafter 

breach their legal responsibility to 

prevent it.’’). 

Regarding commenters’ concerns 

about the burden applicants would have 

in establishing that an official was not 

a rogue official, the Departments 

reiterate that this rule codifies the 

analysis that, for an individual to be 

acting in an official capacity, he or she 

must be acting under color of law. As 

stated above, this standard aligns with 

the standard required by the Attorney 

General in Matter of O–F–A–S–, as well 

as the various circuit courts of appeals 

to have considered the issue. Therefore, 

the burden continues to require that an 

applicant demonstrate that an 

individual acted under color of law to 

demonstrate eligibility. The final rule 

does not raise or change the burden on 

the applicant, but merely provides 

clarity on the analysis. Moreover, the 

NPRM lists the main issues to consider 

in determining whether an official was 

acting under the color of law: Whether 

government connections provided the 

officer access to the victim, or to his 

whereabouts or other identifying 

information; whether the officer was on 

duty and in uniform at the time of his 

conduct; and whether the officer 

threatened to retaliate through official 

channels if the victim reported his 

conduct to authorities. 85 FR at 36287. 

The Departments believe these issues 

would be known by the alien, who 

could at least provide evidence in the 

form of his or her personal testimony if 

other witnesses or documents were 

unavailable. See 8 CFR 1208.16(c)(2) 

(‘‘The testimony of the applicant, if 

credible, may be sufficient to sustain the 

burden of proof [for a claim for 

protection under the CAT] without 

corroboration.’’). 

5. Information Disclosure 

Comment: Commenters raised 

concerns that the rule’s confidentiality 

provisions violate asylum seekers’ right 

to privacy in their asylum proceedings, 

are ‘‘expansive and highly concerning,’’ 

and would put asylum seekers at ‘‘grave 

risk of harm.’’ Commenters were 

particularly concerned about cases 

involving gender-based violence. 

Commenters explained that broad 

disclosure language would deter asylum 

seekers from pursuing relief or revealing 

details of their alleged persecution for 

fear that their persecutor would learn 

about their asylum claim and subject 

them or their families to further harm. 

This fear, according to commenters, 

would be compounded by the fact that 

persecutors could potentially learn such 

information online without needing to 

be physically present in the United 

States. For example, commenters were 

concerned that disclosures in Federal 

litigation could be accessed by anyone 

because the litigation is public record. 

One commenter noted that the 

exception for state or Federal mandatory 

reporting requirements at 8 CFR 

208.6(d)(1)(iii) and 1208.6(d)(1)(iii) is 

‘‘completely open ended and provides 

no safeguards against publication’’ to 

the public. Another commenter raised 

concerns about the exception allowing 

for an asylum application to be filed in 

an unrelated case as evidence of fraud. 

The commenter explained that, in 

practice, this would mean that 

information from one applicant’s case 

would be accessible to another 

applicant, potentially putting the 

asylum applicant in danger. 

Response: The Departments are fully 

cognizant of the need to protect asylum 

seekers, as well as their relatives and 

associates in their home countries, by 

preventing the disclosure of information 

contained in or pertaining to their 

applications. There are specific 

situations, however, in which the 

disclosure of relevant information is 

necessary to protect the integrity of the 

system, to ensure that those engaged in 

fraud do not obtain benefits to which 

they are not entitled, and to ensure that 

unlawful behavior is not inadvertently 

and needlessly protected. The existing 

confidentiality provisions do not 

provide for an absolute bar on 

disclosure, but even their exceptions 

may encourage fraud or criminal 

behavior. See Angov, 788 F.3d at 901 


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(‘‘This points to an unfortunate reality 

that makes immigration cases so 

different from all other American 

adjudications: Fraud, forgery and 

fabrication are so common—and so 

difficult to prove—that they are 

routinely tolerated.’’). Ultimately, there 

is no utility in protecting a false or 

fraudulent asylum claim, in restricting 

access to evidence of child abuse, or in 

restricting access to evidence that may 

prevent a crime, and the rule properly 

calibrates those concerns as 

outweighing the blunt shield of 

confidentiality for an assortment of 

unlawful behaviors that exists under the 

current regulations. 

Here, the Departments have 

determined that additional, limited 

disclosure exceptions are necessary to 

protect the integrity of proceedings, to 

ensure that other types of criminal 

activity are not shielded by the 

confidentiality provisions, and to ensure 

that the government can properly 

defend itself in relevant proceedings. By 

their text, these additional disclosure 

exceptions are limited to specific 

circumstances in which the disclosure 

of such information is necessary and the 

need for the disclosure outweighs 

countervailing concerns. This rule 

includes clarifying exceptions explicitly 

allowing release of information as it 

relates to any immigration proceeding 

under the INA or legal action relating to 

the alien’s immigration or custody 

status. This will ensure that the 

government can provide a full and 

accurate record in litigating such 

proceedings. 

The rule also includes provisions for 

protecting the integrity of proceedings 

and public safety. These include 

provisions aimed at detecting fraud by 

allowing the Departments to submit 

similar asylum applications in unrelated 

proceedings; pursuing state or Federal 

criminal investigations, proceedings, or 

prosecutions; and protecting against 

child abuse. For example, the fraud 

exception will allow the Departments to 

consider potentially fraudulent similar 

applications or evidence in an 

immigration proceeding in order to root 

out non-meritorious claims, which will 

in turn allow the Departments to focus 

limited resources on adjudicating cases 

with a higher chance of being 

meritorious. See, e.g., Angov, 788 at 

901–02 (‘‘[Immigration f]raud, forgery 

and fabrication are so common—and so 

difficult to prove—that they are 

routinely tolerated. . . . [I]f an alien 

does get caught lying or committing 

fraud, nothing very bad happens to 

him. . . . Consequently, immigration 

fraud is rampant.’’). 

Regarding commenters’ concerns with 

the exception to allow disclosure as 

required by any state or Federal 

mandatory reporting requirements, the 

Departments note that the exception 

simply makes clear that government 

officials must abide by such laws. This 

provision is designed to prevent any 

inconsistencies and ensure that 

government officials comply with any 

mandatory reporting requirements. 

Accordingly, despite commenters’ 

concerns with the breadth of this 

provision, the Departments disagree that 

any limiting language would be 

appropriate. 

The Departments have considered 

commenters’ concerns that an 

applicant’s application will be 

submitted in another proceeding and 

thereby be made available to the other 

applicant, though they note that existing 

exceptions already cover ‘‘[t]he 

adjudication of asylum applications’’ 

and ‘‘[a]ny United States Government 

investigation concerning any . . . civil 

matter,’’ which, arguably, already 

encompass the use of applications 

across proceedings. 8 CFR 208.6(c)(1)(i), 

(v), 1208.6(c)(1)(i), (v). The Departments 

are maintaining the exceptions in the 

NPRM to ensure clarity on this point 

and to ensure that existing regulations 

are not inappropriately used to shield 

unlawful behavior. Because cases 

involving asylum fraud are 

‘‘distressingly common,’’ Angov, 788 at 

902, the need to root out fraudulent 

asylum claims greatly outweighs the 

concerns raised by commenters. 

Moreover, legitimate asylum seekers 

generally should be unaffected by this 

exception. Finally, the Departments 

reiterate that only ‘‘relevant and 

applicable’’ information is subject to 

disclosure under that exception; thus, 

rather than an open-ended exception, 

this exception ensures that only a 

limited amount of information is subject 

to disclosure under that exception. 

Finally, as noted above, the 

Departments are making conforming 

edits to 8 CFR 208.6(a) and (b) and 8 

CFR 1208.6(b) to make clear that the 

disclosure provisions of 8 CFR 208.6 

and 1208.6 apply to applications for 

withholding of removal under the INA 

and for protection under the regulations 

implementing the CAT, and not solely 

to asylum applications. That point is 

already clear in 8 CFR 208.6(d) and 

1208.6(d), and the Departments see no 

reason not to conform the other 

paragraphs in those sections for 

consistency. Relatedly, the Departments 

are also making edits to 8 CFR 208.6(a), 

(b), (d), and (e) and 8 CFR 1208.6(b), (d), 

and (e) to make clear that applications 

for refugee admission pursuant to INA 

207(c)(1), 8 U.S.C. 1157(c)(1), and 8 CFR 

part 207 are subject to the same 

information disclosure provisions as 

similar applications for asylum, 

withholding of removal under the INA, 

and protection under the regulations 

implementing the CAT. The 

Departments already apply the 

disclosure provisions to such 

applications as a matter of policy and 

see no basis to treat such applications 

differently than those for protection 

filed by aliens already in or arriving in 

the United States. 

6. Violates Domestic or International 

Law 

6.1. Violates Immigration and 

Nationality Act 

Comment: Commenters expressed a 

general belief that the rule violates the 

INA, such as by rendering it 

‘‘impossible’’ or ‘‘near impossible’’ to 

obtain refugee status. 

Multiple commenters stated that it 

appears the proposed rule is an 

‘‘unreasonable interpretation’’ of 

sections 208 and 240 of the INA, 8 

U.S.C. 1158 and 1229a, because two 

members of Congress have issued a 

statement in opposition to the rule. 

Response: This rule implements 

numerous changes to the Departments’ 

regulations regarding asylum and 

related procedures, including 

amendments to the expedited removal 

and credible fear screening process, 

changes to the standards for frivolous 

asylum application findings, a provision 

to allow immigration judges to pretermit 

applications in certain situations, 

codification of standards for 

consideration during the review of 

applications for asylum and for 

statutory withholding of removal, and 

amendments to the provisions regarding 

information disclosure. Each of these 

changes, as discussed with more 

specificity elsewhere in Section II.C of 

this preamble, is designed to better align 

the Departments’ regulations with the 

Act and congressional intent. As also 

discussed, supra, the rule does not end 

asylum or refugee procedures, nor does 

it make it impossible for aliens to obtain 

such statuses. To the contrary, by 

providing clearer guidance to 

adjudicators and allowing them to more 

effectively consider all applications, the 

rule should allow adjudicators to more 

efficiently reach meritorious claims. 

The Departments disagree that the 

statements of certain members of 

Congress about their personal opinion 

regarding the rule are sufficient to 

demonstrate that the rule is an 

‘‘unreasonable interpretation’’ of the 

Act. Indeed, the statements of certain 


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members of Congress in 2020 is not 

clear evidence of the legislative intent 

behind the 1996 enactment of IIRIRA, 

which established the key statutory 

provisions related to this rule. 

6.2. Violates Administrative Procedure 

Act 

Comment: Commenters raised 

concerns that the rule does not comply 

with the APA. Commenters alleged that 

the rule is arbitrary and capricious 

under the APA because it does not offer 

‘‘reasoned analysis’’ for the proposed 

changes. Commenters explained that 

‘‘reasoned analysis’’ requires the 

Departments to display awareness that 

they are changing positions on a policy, 

to provide a legitimate rationale for 

departing from prior policy, and to 

identify the reasons for the change and 

why the change is a better solution to 

the issue. 

In alleging this failure, commenters 

argued that the Departments did not 

analyze or rely on data or other 

evidence in formulating these changes. 

Moreover, commenters also claimed that 

the Departments did not consider 

possible alternatives to the changes and 

failed to consider important aspects of 

the various changes, including the 

impacts on the applicants and their 

communities. Commenters claimed that 

this rule is nothing more than a pretext 

for enshrining anti-asylum seeker 

sentiments, as evidenced by the thin or 

complete lack of justification for the 

various changes. 

In addition, commenters claimed that 

this rule overlaps with other recent 

rules promulgated by the Departments, 

including rules involving asylum and 

adjusting fee amounts. Commenters 

claimed that it is arbitrary and 

capricious for the Departments to ‘‘carve 

up [their] regulatory activity to evade 

comprehensive evaluation and 

comment.’’ For example, one 

commenting organization stated that the 

rule treats domestic violence differently 

from another recent rule, in that the 

other rule bars relief for persons who 

have committed gender-based violence, 

while this rule bars relief from persons 

who have survived gender-based 

violence. 

One commenting organization stated 

that the Departments are implementing 

this rule to enhance their litigating 

positions before EOIR and the Federal 

courts, which the commenter alleged is 

arbitrary and capricious where ‘‘there is 

no legitimate basis for the regulation 

other than to enhance the litigating 

position’’ of the Departments, 

particularly when the Departments are 

parties to the litigation. 

Response: The Departments disagree 

that the promulgation of this rule is 

arbitrary and capricious under the APA. 

The APA requires agencies to engage in 

‘‘reasoned decisionmaking,’’ Michigan, 

576 U.S. at 750, and directs that agency 

actions be set aside if they are arbitrary 

or capricious, 5 U.S.C. 706(2)(A). This, 

however, is a ‘‘narrow standard of 

review’’ and ‘‘a court is not to substitute 

its judgment for that of the agency,’’ Fox 

Television, 556 U.S. at 513 (quotation 

marks omitted), but is instead to assess 

only whether the decision was ‘‘based 

on a consideration of the relevant 

factors and whether there has been a 

clear error of judgment,’’ Citizens to 

Preserve Overton Park, Inc. v. Volpe, 

401 U.S. 402, 416 (1971). Arbitrary and 

capricious review is ‘‘highly deferential, 

presuming the agency action to be 

valid.’’ Sacora v. Thomas, 628 F.3d 

1059, 1068 (9th Cir. 2010). It is 

‘‘reasonable for the [agency] to rely on 

its experience’’ to arrive at its 

conclusions, even if those conclusions 

are not supported with ‘‘empirical 

research.’’ Id. at 1069. Moreover, the 

agency need only articulate ‘‘satisfactory 

explanation’’ for its decision, including 

‘‘a rational connection between the facts 

found and the choice made.’’ Motor 

Vehicle Mfrs. Ass’n of U.S., Inc. v. State 

Farm Mut. Auto Ins. Co., 463 U.S. 29, 

43 (1983); see also Dep’t of Commerce 

v. New York, 139 S. Ct. 2551, 2569 

(2019) (‘‘We may not substitute our 

judgment for that of the Secretary, but 

instead must confine ourselves to 

ensuring that he remained within the 

bounds of reasoned decisionmaking.’’ 

(citation and quotation marks omitted)). 

Under this deferential standard, and 

contrary to commenters’ claims, the 

Departments have provided reasoned 

explanations for the changes in this rule 

sufficient to rebut any APA-related 

concerns. The NPRM describes each 

provision in detail and provides an 

explanation for each change. See 85 FR 

at 36265–88. The Departments 

explained that these various changes 

will, among other things, maintain a 

streamlined and efficient adjudication 

process for asylum, withholding of 

removal, and CAT protection; provide 

clarity in the adjudication of such 

claims; and protect the integrity of such 

proceedings. Id. As noted in Section II.A 

of this preamble, the animating 

principles of the NPRM were to provide 

clearer guidance to adjudicators 

regarding a number of thorny issues that 

have caused confusion and 

inconsistency and even bedeviled 

circuit courts; to improve the efficiency 

and integrity of the overall system in 

light of the overwhelming number of 

cases pending; to correct procedures 

that were not working well, including 

procedures for the identification of 

meritless or fraudulent claims; and to 

provide a consistent approach for the 

overall asylum adjudicatory framework 

in light of numerous—and often 

contradictory or confusing—decisions 

from the Board and circuit courts 

regarding multiple important terms that 

are not defined in the statute. 

For example, the Departments 

explained that the changes to use 

asylum-and-withholding-only 

proceedings for positive credible fear 

findings, to increase the credible fear 

standard for withholding of removal and 

CAT protection claims, to apply certain 

bars and the internal relocation analysis 

in credible fear interviews, to pretermit 

legally insufficient asylum applications, 

and to expand the grounds for a 

frivolous asylum finding are all 

intended to create a more streamlined 

and efficient process for adjudicating 

asylum, withholding of removal, and 

CAT protection applications. See 85 FR 

at 36266–67 (explaining that asylumand-withholding-only proceedings will 

ensure a ‘‘streamlined, efficient, and 

truly ‘expedited’ ’’ removal process); id. 

at 36277 (explaining that the 

pretermission of legally insufficient 

asylum applications will eliminate the 

need for a hearing); id. at 36273–76 

(explaining that frivolous applications 

are a ‘‘costly detriment, resulting in 

wasted resources and increased 

processing times,’’ and that the new 

grounds for a finding of frivolousness 

will ‘‘ensure that meritorious claims are 

adjudicated more efficiently’’ and will 

prevent ‘‘needless expense and delay’’); 

id. at 36268–71 (explaining that raising 

the credible fear standard for 

withholding and CAT applications will 

allow the Departments to more 

‘‘efficiently and promptly’’ distinguish 

between aliens whose claims are more 

or less likely to ultimately be 

meritorious); id. at 36272 (explaining 

that applying certain eligibility bars in 

credible fear interviews will help to 

eliminate unnecessary removal delays 

in section 240 proceedings and 

eliminate the ‘‘waste of adjudicatory 

resources currently expended in vain’’). 

Similarly, the Departments also 

explained in the NPRM that many of the 

changes are intended to provide clarity 

to adjudicators and the parties, 

including the addition of definitions 

and standards for terms such as 

‘‘particular social group,’’ ‘‘political 

opinion,’’ ‘‘persecution,’’ ‘‘nexus,’’ and 

‘‘internal relocation;’’ the delineation of 

discretionary factors in adjudicating 

asylum applications; the addition of 

guidance on the meaning of 


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79For further discussion regarding the changes 

related to particular social groups, see Section 

II.C.4.1 of this preamble, and for further discussion 

regarding the changes related to nexus, see Section 

II.C.4.4. 

80The Departments also note that aliens with 

otherwise meritorious claims who are denied 

asylum under genuinely new principles in the 

rule—e.g., the new definition of ‘‘firm 

resettlement’’—may remain eligible for other forms 

of protection from removal, such as statutory 

withholding of removal or protection under the 

CAT. Thus, contrary to the assertions of many 

commenters, the rule would not result in the 

‘‘harsh’’ or ‘‘severe’’ consequence of an alien being 

removed to a country where his or her life would 

be in danger. 

‘‘acquiescence’’ and the circumstances 

in which officials are not acting under 

color of law in the CAT protection 

context; and the clarification of the use 

of precedent in credible fear review 

proceedings. See 85 FR at 36278 

(explaining that the rule’s definition of 

‘‘particular social group’’ will provide 

‘‘clearer guidance’’ to adjudicators 

regarding whether an alleged group 

exists and, if so, whether the group is 

cognizable); id. at 36278–79 (explaining 

that the rule’s definition of ‘‘political 

opinion’’ will provide ‘‘additional 

clarity for adjudicators’’); id. at 36280 

(explaining that the rule’s definition of 

‘‘persecution’’ will ‘‘better clarify what 

does and does not constitute 

persecution’’); id. at 36281 (explaining 

that the rule’s definition of ‘‘nexus’’ will 

provide ‘‘clearer guidance’’ for 

adjudicators to ‘‘uniformly apply’’); id. 

at 36282 (explaining that the rule’s 

definition of ‘‘internal relocation’’ will 

help create a more ‘‘streamlined 

presentation’’ to overcome the current 

lack of ‘‘practical guidance’’); id. at 

36283 (explaining that, for asylum 

discretionary determinations, the 

Departments have not previously 

provided general guidance in agency 

regulations for factors to be considered 

when determining whether an alien 

merits asylum as a matter of discretion); 

id. at 36286–87 (explaining that 

guidance for CAT acquiescence and for 

the circumstances in which an official is 

not acting under color of law standards 

is meant to provide clarity because 

current regulations ‘‘do not provide 

further guidance’’); id. at 36267 

(explaining that the inclusion of 

language regarding the consideration of 

precedent in credible fear review 

proceedings is intended to provide a 

‘‘clear requirement’’). 

The Departments also explained that 

many of the changes are intended to 

protect the integrity of proceedings. See 

85 FR at 36288 (explaining the 

expansion of information disclosure is 

necessary to protect against ‘‘suspected 

fraud or improper duplication of 

applications or claims’’); id. at 36283 

(explaining that the inclusion of a 

discretionary factor for use of fraudulent 

documents is necessary due to concerns 

that the use of fraudulent documents 

makes the proper enforcement of the 

immigration laws ‘‘difficult’’ and 

‘‘requires an immense amount of 

resources’’); id. (explaining that the 

inclusion of a discretionary factor for 

failure to seek asylum or protection in 

a transit country ‘‘may reflect an 

increased likelihood that the alien is 

misusing the asylum system’’); id. at 

36284 (explaining that making 

applications that were previously 

abandoned or withdrawn with prejudice 

a negative discretionary factor would 

‘‘minimize abuse of the system’’). 

The Departments also disagree with 

commenters that the rule does not 

provide support for the specific grounds 

that would be insufficient to qualify as 

a particular social group or to establish 

a nexus.79 The Departments provided 

numerous citations to BIA and Federal 

court precedent that the Departments 

relied on in deciding to add these 

specific grounds. See 85 FR at 36279 

(list of cases supporting the grounds that 

generally will not qualify as a particular 

social group); id. at 36281 (list of cases 

supporting the grounds that generally 

will not establish nexus). 

In addition to the explicit purposes 

detailed in the NPRM, the Departments 

also considered, contrary to 

commenters’ claims, the effects that 

such changes may have on applicants. 

The Departments noted that the 

proposed changes ‘‘are likely to result in 

fewer asylum grants annually.’’ 85 FR at 

36289. Moreover, the Departments 

recognized that any direct impacts 

would fall on these applicants. Id. at 

36290. The Departments acknowledge 

that these impacts are viewed as 

‘‘harsh’’ or ‘‘severe’’ by commenters, but 

the Departments also note, as discussed, 

supra, that many of the commenters’ 

overall assertions about the effects of 

this rule are unfounded or speculative.80

In addition, the Departments made the 

decision to include the various changes 

in this rule because, after weighing the 

costs and benefits, the Departments 

determined that the need to provide 

additional clarity to adjudicators; to 

enhance adjudicatory efficiencies; and 

to ensure the integrity of proceedings 

outweighed the potential costs to 

applicants, especially since the changes, 

particularly those rooted in existing law, 

would naturally fall more on applicants 

with non-meritorious claims. In fact, the 

enhanced adjudicatory efficiencies 

would be expected to allow adjudicators 

to focus more expediently on 

meritorious claims, which would be a 

benefit offsetting any costs to those 

applicants filing non-meritorious 

applications. Overall, as shown in the 

NPRM and the final rule, the 

Departments engaged in ‘‘reasoned 

decision making’’ sufficient to mitigate 

any APA concerns. 

The Departments also disagree with 

commenters’ claim that the Departments 

purposefully separated their asylumrelated policy goals into separate 

regulations in order to prevent the 

public from being able to meaningfully 

review and provide comment. The 

Departments reject any assertions that 

they are proposing multiple rules for 

any sort of nefarious purpose. Each of 

the Departments’ rules stand on its own, 

includes an explanation of its basis and 

purpose, and allows for public 

comment, as required by the APA. See 

Little Sisters of the Poor Saints Peter & 

Paul Home v. Pennsylvania, 140 S. Ct. 

2367, 2386 (2020) (explaining that the 

APA provides the ‘‘maximum 

procedural requirements’’ that an 

agency must follow in order to 

promulgate a rule). To the extent 

commenters noted some overlap or joint 

impacts, however, the Departments 

regularly consider the existing legal 

framework when a specific rule is 

proposed or implemented. For example, 

with respect to the potential impacts of 

DHS fee changes, DHS conducts a 

biennial review of USCIS fees and 

publishes a Fee Rule that impacts all 

populations before USCIS. See, e.g., U.S. 

Citizenship and Immigration Services 

Fee Schedule and Changes to Certain 

Other Immigration Benefit Request 

Requirements, 84 FR 62280, 62282 

(Nov. 14, 2019) (explaining that, in 

accordance with 31 U.S.C. 901–03, 

USCIS conducts ‘‘biennial reviews of 

the non-statutory fees deposited into the 

[Immigration Examinations Fee 

Account]’’). It is natural that there 

would be some impact on aliens who 

intend to seek asylum, but any such 

change to those fees must be considered 

with respect to USCIS’s overall fee 

structure. Thus, any such changes were 

properly outside the scope of this rule. 

Moreover, nothing in any rule proposed 

by the Departments, including the 

NPRM underlying this final rule, 

precludes the public from meaningfully 

reviewing and commenting on that rule. 

Finally, commenters are incorrect that 

the rule is related to enhancing the 

government’s litigating positions. As 

explained in the NPRM and this 

response section, the Departments 

detailed a number of reasons for 

promulgating this rule, including to 

increase efficiency, to provide clarity to 

adjudicators, and to protect the integrity 

of proceedings. To the extent the rule 


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corresponds with interpretations of the 

Act and case law that the Departments 

have set forth in other contexts, the 

Departments disagree that such 

correspondence violates the APA. 

Instead, it shows the Departments’ 

consistent interpretation and the 

Departments’ intent to better align the 

regulations with the Act through this 

rulemaking. 

6.3. 30-Day Comment Period 

Comment: Commenters raised 

concerns with the 30-day comment 

period, arguing that the Departments 

should extend the comment period to at 

least 60 days or should reissue the rule 

with a new 60-day comment period. 

Due to the complex nature of the rule 

and its length, commenters requested 

additional time to comment, asserting 

that such time is needed to meet APA 

requirements that agencies provide the 

public with a ‘‘meaningful opportunity’’ 

to comment. Commenters also claimed 

that the 30-day comment period was 

particularly problematic due to the 

COVID–19 pandemic, which caused 

disruption and limited staff capacity for 

some commenters. Moreover, 

commenters stated that there should be 

no urgency to publish the rule due to 

the southern border being ‘‘blocked’’ 

due to COVID–19. Finally, commenters 

referenced the companion data 

collection under the Paperwork 

Reduction Act, which allowed for a 60- 

day comment period. 

Response: The Departments believe 

the 30-day comment period was 

sufficient to allow for meaningful public 

input, as evidenced by the almost 

89,000 public comments received, 

including numerous detailed comments 

from interested organizations. The APA 

does not require a specific comment 

period length, see 5 U.S.C. 553(b), (c), 

and although Executive Orders 12866, 

58 FR 51735 (Sept. 30, 1993), and 

13563, 76 FR 3821 (Jan. 18, 2011), 

recommend a comment period of at 

least 60 days, a 60-day period is not 

required. Federal courts have presumed 

30 days to be a reasonable comment 

period length. For example, the D.C. 

Circuit has stated that, although a 30- 

day period is often the ‘‘shortest’’ period 

that will satisfy the APA, such a period 

is generally ‘‘sufficient for interested 

persons to meaningfully review a 

proposed rule and provide informed 

comment,’’ even when ‘‘substantial rule 

changes’’ are proposed. Nat’l Lifeline 

Ass’n v. Fed. Commc’ns Comm’n, 921 

F.3d 1102, 1117 (D.C. Cir. 2019) (citing 

Petry v. Block, 737 F.2d 1193, 1201 

(D.C. Cir. 1984)). 

Further, litigation has mainly focused 

on the reasonableness of comment 

periods shorter than 30 days, often in 

the face of exigent circumstances. See, 

e.g., N. Carolina Growers’ Ass’n, Inc. v. 

United Farm Workers, 702 F.3d 755, 770 

(4th Cir. 2012) (analyzing the 

sufficiency of a 10-day comment 

period); Omnipoint Corp. v. FCC, 78 

F.3d 620, 629–30 (D.C. Cir. 1996) (15- 

day comment period); Northwest 

Airlines, Inc. v. Goldschmidt, 645 F.2d 

1309, 1321 (8th Cir. 1981) (7-day 

comment period). In addition, the 

Departments are not aware of any case 

law holding that a 30-day comment 

period was insufficient, and the 

significant number of detailed public 

comments is evidence that the 30-day 

period was sufficient for the public to 

meaningfully review and provide 

informed comment. See, e.g., Little 

Sisters of the Poor, 140 S. Ct. at 2385 

(‘‘The object [of notice and comment], in 

short, is one of fair notice.’’ (citation and 

quotation marks omitted)). 

One commenter noted that the 

comment period in the rule regarding 

the edits to the Form I–589, Application 

for Asylum and for Withholding of 

Removal, was 60 days, while the 

comment period for the substantive 

portions of the rule was only 30 days. 

In most cases, by statute, the Paperwork 

Reduction Act requires a 60-day 

comment period for proposed 

information collections, such as the 

Form I–589. 44 U.S.C. 3506(c)(2)(A). 

Although the statute allows an 

exception for proposed collections of 

information contained in a proposed 

rule that will be reviewed by the 

Director of the Office of Management 

and Budget under 44 U.S.C. 3507, see 44 

U.S.C. 3506(c)(2)(B), the Departments 

sought a 60-day comment period to 

provide the public with additional time 

to comment on the form changes. In 

contrast, as explained above, there is no 

similar statutory requirement for the 

proposed rule itself. 

6.4. Agency Is Acting Beyond Authority 

Comment: At least one organization 

emphasized the Departments’ reliance 

on Brand X, 545 U.S. at 982, as a 

justification for the portions of the rule 

overruling circuit court decisions 

relating to asylum. See 85 FR at 36265, 

n.1. One organization claimed the 

Departments ‘‘ignore[d]’’ the Supreme 

Court’s decision in Kisor v. Wilkie, 139 

S. Ct. 2400 (2019), which ‘‘follows the 

recent trend towards limiting deference 

to an agency’s interpretation of its own 

rules.’’ According to the organization, 

Brand X can be interpreted to mean that, 

where statutory or regulatory terms are 

generally ambiguous and the agency has 

not ruled on a particular issue, circuit 

court law addressing the issue in 

question governs only until ‘‘the agency 

has issued a dispositive interpretation 

concerning the meaning of a genuinely 

ambiguous statute or regulation.’’ The 

organization also noted that Chevron 

deference requires a Federal court to 

accept an agency’s ‘‘reasonable 

construction of an ambiguous statute,’’ 

emphasizing that the distinction 

between ‘‘genuinely ambiguous 

language’’ and ‘‘plain language’’ is 

crucial. See Chevron, 467 U.S. at 843– 

44, n.11. 

The organization then alleged that the 

Departments’ reliance on Brand X ‘‘to 

entirely eviscerate Federal court 

caselaw’’ is misplaced and contrary to 

controlling law. According to the 

organization, the Departments failed to 

demonstrate that each instance of the 

statutory language they seek to overrule 

is ‘‘genuinely ambiguous,’’ and the 

organization cited Kisor, 139 S. Ct. 2400, 

to support its claim that deference to 

‘‘agency regulations should not be 

afforded automatically.’’ The 

organization claimed that Kisor limits 

the ability to afford deference unless (1) 

a regulation is genuinely ambiguous; (2) 

the agency’s interpretation is reasonable 

regarding text, structure, and history; (3) 

the interpretation is the agency’s official 

position; (4) the regulation implicates 

the agency’s expertise; and (5) the 

regulation reflects the agency’s ‘‘fair and 

considered judgment.’’ The organization 

contended that the Departments failed 

to meet these criteria, alleging that the 

proposed rule attempts to ‘‘re-write 

asylum law rather than interpret the 

statute.’’ 

Multiple commenters claimed that the 

rule is in opposition to the asylum 

criteria established by Congress and 

expressed concern that the rule was 

drafted without congressional input. 

Response: The Departments did not 

ignore Kisor, 139 S. Ct. 2400. Kisor 

examined the scope of Auer deference, 

which affords deference to an agency’s 

‘‘reasonable readings of genuinely 

ambiguous regulations.’’ Id. at 2408 

(citing Auer v. Robbins, 519 U.S. 452 

(1997)). Here, ambiguous regulations are 

not at issue; instead, the Departments 

amended the regulations based on their 

reading of ambiguities in the statute, in 

accordance with Congress’s presumed 

intent for the Departments to resolve 

these ambiguities. See 85 FR at 36265 

n.1 (citing Brand X, 545 U.S. at 982). 

The Departments disagree that the 

rulemaking ‘‘eviscerates’’ case law. As 

explained in the NPRM, ‘‘administrative 

agencies are not bound by prior judicial 

interpretations of ambiguous statutory 

interpretations, because there is ‘a 

presumption that Congress, when it left 

ambiguity in a statute meant for 


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implementation by an agency, 

understood that the ambiguity would be 

resolved, first and foremost, by the 

agency, and desired the agency (rather 

than the courts) to possess whatever 

degree of discretion the ambiguity 

allows.’ ’’ Matter of R–A–, 24 I&N Dec. 

at 631 (quoting Brand X, 545 U.S. at 

982) (quotation marks and citations 

omitted); see also 85 FR at 36265 n.1; 

Ventura, 537 U.S. at 16 (‘‘Within broad 

limits the law entrusts the agency to 

make the basic asylum eligibility 

decision here in question. In such 

circumstances a judicial judgment 

cannot be made to do service for an 

administrative judgment. Nor can an 

appellate court intrude upon the 

domain which Congress has exclusively 

entrusted to an administrative agency. A 

court of appeals is not generally 

empowered to conduct a de novo 

inquiry into the matter being reviewed 

and to reach its own conclusions based 

on such an inquiry.’’ (alteration, 

citations, and quotation marks 

omitted)). Moreover, ‘‘ ‘judicial 

deference to the Executive Branch is 

especially appropriate in the 

immigration context,’ where decisions 

about a complex statutory scheme often 

implicate foreign relations.’’ Cuellar de 

Osorio, 573 U.S. at 56–57 (quoting INS 

v. Aguirre-Aguirre, 526 U.S. 415, 425 

(1999)). 

Further, the Departments disagree that 

the rulemaking rewrites asylum law or 

that it conflicts with the asylum criteria 

established by Congress. Congress 

statutorily authorized the Attorney 

General to, consistent with the statute, 

make discretionary asylum 

determinations, INA 208(b)(1)(A), 8 

U.S.C. 1158(b)(1)(A), establish 

additional limitations and conditions on 

asylum eligibility, INA 208(b)(2)(C), 8 

U.S.C. 1158(b)(2)(C), and establish other 

conditions and limitations on 

consideration of asylum applications, 

INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). 

The changes made by this rulemaking 

are consistent with those congressional 

directives. Regarding commenters’ 

concerns that the rule was drafted 

without congressional input, the 

Departments once again point to 

Congress’s statutory delegation of 

authority to the Attorney General. See 

INA 103(g)(1), (2), 8 U.S.C. 1103(g)(1), 

(2) (granting the Attorney General the 

‘‘authorities and functions under this 

chapter and all other laws relating to the 

immigration and naturalization of 

aliens,’’ and directing the Attorney 

General to ‘‘establish such regulations 

. . . and perform such other acts as the 

Attorney General determines to be 

necessary for carrying out this section’’). 

Congress, in other words, has already 

delegated to the Attorney General the 

power to promulgate rules such as this 

one, and no further congressional input 

is required. 

6.5. Violates Separation of Powers 

One organization emphasized that the 

Departments only have authority to 

‘‘faithfully interpret’’ a statute, not to 

rewrite it. The organization contended 

that ‘‘[r]ulemaking is not an opportunity 

for an agency to engage in an 

unauthorized writing exercise that 

duplicates the legislative role assigned 

to Congress.’’ Another commenter 

claimed there is an ‘‘urgent need’’ for 

checks and balances on the ‘‘power’’ of 

immigration authorities in the asylum 

process, alleging that the U.S. 

government is allowing ICE and CBP to 

put lives in danger due to ‘‘lack of 

oversight.’’ One commenter contended 

that revising asylum law ‘‘is not an 

executive branch function.’’ 

Response: The Departments are not 

rewriting statutes. As explained 

throughout this final rule in various 

sections, the Departments are statutorily 

authorized to promulgate this rule 

under section 208(b)(1)(A) of the Act, 8 

U.S.C. 1158(b)(1)(A) (authority to make 

discretionary asylum determinations), 

section 208(b)(2)(C) of the Act, 8 U.S.C. 

1158(b)(2)(C) (authority to establish 

additional limitations and conditions on 

asylum eligibility), and section 

208(d)(5)(B) of the Act, 8 U.S.C. 

1158(d)(5)(B) (authority to establish 

other conditions and limitations on 

consideration of asylum applications). 

In section 103(a)(1) and (3) of the INA, 

8 U.S.C. 1103(a)(1), (3), Congress has 

conferred upon the Secretary broad 

authority to administer and enforce the 

immigration laws and to ‘‘establish such 

regulations . . . as he deems necessary 

for carrying out his authority’’ under the 

immigration laws. Under section 

103(g)(1), (2) of the Act, 8 U.S.C. 

1103(g)(1), (2), Congress provided the 

Attorney General with the ‘‘authorities 

and functions under this chapter and all 

other laws relating to the immigration 

and naturalization of aliens,’’ and 

directed the Attorney General to 

‘‘establish such regulations . . . and 

perform such other acts as the Attorney 

General determines to be necessary for 

carrying out this section.’’ Thus, the 

Departments derive authority to 

promulgate this rule from the statute 

and issued this rule consistent with the 

statute, not in contravention of it. 

Moreover, the Departments have 

promulgated this rule in accordance 

with the APA’s rulemaking process. See 

5 U.S.C. 553; see also Sections II.C.6.2, 

6.3 of this preamble. 

The Departments also note that, 

although an agency ‘‘must give effect to 

the unambiguously expressed intent of 

Congress,’’ if Congress ‘‘has explicitly 

left a gap for the agency to fill, there is 

an express delegation of authority to the 

agency to elucidate a specific provision 

of the statute by regulation. Such 

legislative regulations are given 

controlling weight unless they are 

arbitrary, capricious, or manifestly 

contrary to the statute.’’ Chevron, 467 

U.S. at 843–44; see also Aguirre-Aguirre, 

526 U.S. at 424–25 (‘‘It is clear that 

principles of Chevron deference are 

applicable to [the INA]. The INA 

provides that ‘[t]he Attorney General 

shall be charged with the administration 

and enforcement’ of the statute and that 

the ‘determination and ruling by the 

Attorney General with respect to all 

questions of law shall be controlling.’ 

. . . In addition, we have recognized 

that judicial deference to the Executive 

Branch is especially appropriate in the 

immigration context where officials 

‘exercise especially sensitive political 

functions that implicate questions of 

foreign relations.’ ’’ (citations omitted)). 

Congress has clearly spoken in the Act, 

see INA 208(b)(1)(A), 8 U.S.C. 

1158(b)(1)(A); INA 208(b)(2)(C), 8 U.S.C. 

1158(b)(2)(C); INA 208(d)(5)(B), 8 U.S.C. 

1158(d)(5)(B); and INA 103(g)(1), (2), 8 

U.S.C. 1103(g)(1), (2), and the 

Departments properly engaged in this 

rulemaking, consistent with 5 U.S.C. 

553, to effectuate that statutory scheme. 

To the extent that comments disagree 

with provisions of the INA, such 

comments are properly directed to 

Congress, not the Departments. 

6.6. Congress Should Act 

Comment: Some commenters stated 

that Congress, not the Departments, 

must make the sorts of changes to the 

asylum procedures set out in the 

proposed rule. Commenters cited a 

variety of reasons why these changes are 

most appropriately the providence of 

Congress, including commenters’ belief 

that the rule would effectively end or 

eliminate asylum availability and limit 

how many asylum seekers would 

receive relief annually, the breadth of 

the changes in the proposed rule, and 

alleged inconsistencies between the Act 

and the rule. Commenters expressed a 

belief that changes as significant as 

those proposed should be undertaken 

only by Congress. Other commenters 

suggested that Congress should 

separately enact other legislation to 

protect asylum seekers. 

Response: As stated above, the 

Departments issued the proposed rule, 

and in turn are issuing this final rule, 

pursuant to the authorities provided by 


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81 In addition, Congress has authorized the 

Department to ‘‘provide by regulation for any other 

conditions or limitations on the consideration of an 

application for asylum’’ consistent with the other 

provisions of the Act. INA 208(d)(5)(B), 8 U.S.C. 

1158(d)(5)(B). 

82The Departments also note that accepting the 

commenters’ assertion that the likelihood of women 

being subject to intimate-partner violence being 

greater than that of men necessarily demonstrates 

an equal protection violation would, in turn, mean 

that other immigration regulations regarding 

victims of domestic violence, e.g., 8 CFR 204.2(c), 

are also unconstitutional because of their putative 

disparate impact. 

83The NPRM did not mention race at all, except 

when quoting the five statutory bases for asylum— 

race, religion, nationality, political opinion, and 

membership in a particular social group. 

Congress through the HSA and the Act. 

INA. See, e.g., INA 103(a)(1) and (3), 

(g)(2), 208, 8 U.S.C. 1101(a)(1) and (3), 

(g)(2), 1158.81 Despite commenters’ 

statements, the provisions of the rule are 

consistent with these authorities and the 

Act, as discussed above. See, e.g., 

Sections II.C.2, II.C.3, II.C.4, and II.C.6.1 

of this preamble. 

Should Congress enact legislation that 

amends the provisions of the Act that 

are interpreted and affected by this rule, 

the Departments will engage in future 

rulemaking as needed. Commenters’ 

discussion of specific possible 

legislative proposals or initiatives, 

however, is outside of the scope of this 

rule. 

6.7. Violates Constitutional Rights 

Comment: One organization 

contended that the application of the 

‘‘interpersonal’’ and ‘‘private’’ categories 

to domestic and gender-based violence 

would violate the Equal Protection 

Clause. The organization claimed the 

presumption created by these categories 

would have a disproportionate effect on 

women, who are much more likely than 

men to experience violence by an 

intimate partner. 

Another organization alleged that the 

rule would essentially prevent women, 

children, LGBTQ individuals, people of 

color, survivors of violence, and torture 

escapees from obtaining asylum 

protection, claiming this violates the 

‘‘spirit and letter’’ of both the Fifth 

Amendment and the Refugee Act of 

1980. According to the organization, the 

rule is designed to ‘‘eliminate due 

process’’ and create ‘‘impossible new 

legal standards’’ to prevent refugees 

from obtaining asylum. One 

organization emphasized generally that 

asylum seekers should not be treated 

like criminals but should instead be 

shown dignity and respect; the 

organization noted that these 

individuals should also be given 

judicial due process. 

Response: The rule makes no 

classifications prohibited by the Equal 

Protection Clause; thus, the 

commenter’s allegation that the rule will 

disproportionately affect various 

groups—women, children, LGBTQ 

individuals, people of color, and 

survivors of violence and torture—is 

unfounded. The Departments do not 

track the factual bases for each asylum 

application, and each application is 

adjudicated on a case-by-case basis in 

accordance with the evidence and 

applicable law. Moreover, the changes 

alleged by commenters to have a 

disparate impact on discrete groups are 

ones rooted in existing law as noted in 

the NPRM, and commenters provided 

no evidence that existing law has 

caused an unconstitutional disparate 

impact. For allegations of disparate 

impact based on gender, a ‘‘significantly 

discriminatory pattern’’ must first be 

demonstrated. Dothard v. Rawlinson, 

433 U.S. 321, 329 (1977). The 

Departments are unaware of such a 

pattern, and commenters did not 

provide persuasive evidence of one, 

relying principally on anecdotes and 

isolated statistics, news articles, and 

reports.82 Moreover, to the extent that 

the NPRM may affect certain groups of 

aliens more than others, those effects are 

a by-product of the intrinsic 

demographic distribution of claims, and 

a plausible equal protection claim will 

not lie in such circumstances. See 

Regents of Univ. of Cal., 140 S. Ct. at 

1915–16 (impact of a policy on a 

population that is intrinsically skewed 

demographically does not established a 

plausible claim of animus, invidious 

discrimination, or an equal protection 

violation). 

For allegations of disparate impact 

based on race, case law has ‘‘not 

embraced the proposition that a law or 

other official act, without regard to 

whether it reflects a racially 

discriminatory purpose, is 

unconstitutional [s]olely because it has 

a racially disproportionate impact. . . . 

[W]e have not held that a law, neutral 

on its face and serving ends otherwise 

within the power of government to 

pursue, is invalid under the Equal 

Protection Clause simply because it may 

affect a greater proportion of one race 

than of another. Disproportionate 

impact is not irrelevant, but it is not the 

sole touchstone of an invidious racial 

discrimination forbidden by the 

Constitution.’’ Washington, 426 U.S. at 

239, 242. No discriminatory motive or 

purpose underlies this rulemaking; it 

does not address race in any way; 83 and 

commenters have not explained— 

logically, legally, or otherwise—how the 

rule would even affect asylum claims 

based on persecution because of race. 

In regard to allegations that the rule 

would discriminate against LGBTQ 

individuals, children, and survivors of 

violence or torture, the Departments 

reiterate that the rule applies equally to 

all asylum seekers. Further, as noted 

elsewhere, to the extent that the NPRM 

may affect certain groups of aliens more 

than others based on the innate 

characteristics of those who file asylum 

applications, those effects are a byproduct of the intrinsic demographic 

distribution of claims, and a plausible 

equal protection claim will not lie in 

such circumstances. See Regents of 

Univ. of Cal., 140 S. Ct. at 1915–16 

(impact of a policy on a population that 

is intrinsically skewed demographically 

does not established a plausible claim of 

animus, invidious discrimination, or an 

equal protection violation). 

Relatedly, this rule does not eliminate 

statutory withholding of removal or 

protection under the CAT regulations, 

through which the United States 

continues to fulfill its commitments 

under the 1967 Refugee Protocol, 

consistent with the Refugee Act of 1980 

and subsequent amendments to the INA, 

and the CAT, consistent with FARRA. 

See R–S–C, 869 F.3d at 1188, n.11 

(explaining that ‘‘the Refugee 

Convention’s non-refoulement 

principle—which prohibits the 

deportation of aliens to countries where 

the alien will experience persecution— 

is given full effect by the Attorney 

General’s withholding-only rule’’); 

Cazun v. Att’y Gen. U.S., 856 F.3d 249, 

257 n.16 (3d Cir. 2017); Ramirez-Mejia 

v. Lynch, 813 F.3d 240, 241 (5th Cir. 

2016); Maldonado, 786 F.3d at 1162 

(explaining that Article 3 of the CAT, 

which sets out the non-refoulement 

obligations of parties, was implemented 

in the United States by the FARRA and 

its implementing regulations). 

The rule does not eliminate due 

process. As explained previously in this 

rule, due process in an immigration 

proceeding requires notice and an 

opportunity to be heard. See LaChance, 

522 U.S. at 266 (‘‘The core of due 

process is the right to notice and a 

meaningful opportunity to be heard.’’). 

The rule does not eliminate the notice 

of charges of removability against an 

alien, INA 239(a)(1), 8 U.S.C. 1229(a)(1), 

or the opportunity for the alien to make 

his or her case to an immigration judge, 

INA 240(a)(1), 8 U.S.C. 1229a(a)(1), or 

on appeal, 8 CFR 1003.38. Moreover, 

asylum is a discretionary benefit. See 

INA 208 (b)(1)(A), 8 U.S.C. 1158(b)(1)(A) 

(stating that the Departments ‘‘may’’ 

grant asylum’’); see also Thuraissigiam, 

140 S. Ct. at 1965 n.4 (‘‘A grant of 


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84The Departments also note that neither of these 

treaties is self-executing, and that, therefore, neither 

is directly enforceable in the U.S. legal context 

except to the extent that they have been 

implemented by domestic legislation. Al-Fara v. 

Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (‘‘The 

1967 Protocol is not self-executing, nor does it 

confer any rights beyond those granted by 

implementing domestic legislation.’’); Auguste v. 

Ridge, 395 F.3d 123, 132 (3d Cir. 2005) (‘‘CAT was 

not self-executing’’); see also Stevic, 467 U.S. at 428 

n.22 (‘‘Article 34 merely called on nations to 

facilitate the admission of refugees to the extent 

possible; the language of Article 34 was precatory 

and not self-executing.’’). 

asylum enables an alien to enter the 

country, but even if an applicant 

qualifies, an actual grant of asylum is 

discretionary.’’). The Attorney General 

and the Secretary are statutorily 

authorized to limit and condition 

asylum eligibility under section 

208(b)(2)(C), (d)(5)(B) of the Act, 8 

U.S.C. 1158(b)(2)(C), (d)(5)(B), by 

regulation and consistent with the Act, 

and courts have found that aliens have 

no cognizable due process interest in 

the discretionary benefit of asylum. See 

Yuen Jin, 538 F.3d at 156–57; Ticoalu, 

472 F.3d at 11 (citing DaCosta, 449 F.3d 

at 50). The Departments properly 

exercised that authority in this 

rulemaking, and that exercise does not 

implicate due process claims. Finally, 

the rule does not treat aliens ‘‘like 

criminals,’’ as commenters alleged. 

Aliens retain all due process rights to 

which they are entitled under law, and 

the rule does not change that situation. 

6.8. Violates International Law 

Comment: Commenters asserted that 

the proposed rule violates the 

Convention on the Rights of the Child 

(‘‘CRC’’) because the United States, as a 

signatory, is obligated to ‘‘refrain from 

acts that would defeat the object and 

purpose of the Convention.’’ 

Commenters averred that the CRC 

protects the rights of children to seek 

asylum; therefore, commenters argued, 

the United States must protect the right 

of children to seek asylum. Commenters 

also asserted that the proposed rule 

violates the Refugee Convention and the 

CRC by requiring adjudicators to 

presume that many child-specific forms 

of persecution do not warrant a grant of 

asylum. Commenters alleged that this 

will result in children being returned to 

danger in violation of the language and 

spirit of the Refugee Convention and the 

CRC. 

One commenter cited Article 14 of the 

Universal Declaration of Human Rights 

(‘‘UDHR’’), G.A. Res. 217A (III), U.N. 

Doc. A/810 (1948), which states that 

‘‘[e]veryone has the right to seek and to 

enjoy in other countries asylum from 

persecution.’’ That commenter asserted 

that the proposed revisions 

unnecessarily hinder access to asylum 

in contradiction of that right. 

Commenters also asserted that, under 

Article 34 of the Refugee Convention, 

the United States has an obligation to 

extend grants of asylum ‘‘as far as 

possible’’ to eligible refugees. These 

commenters asserted that this requires 

adjudicators to, at the very least, 

exercise a general presumption in favor 

of individuals who meet the definition 

of refugee. To do otherwise would not 

meet the United States’ obligation to 

facilitate ‘‘as far as possible’’ the 

assimilation and naturalization of 

individuals who qualify as refugees. 

Commenters criticized the 

Departments’ statements that the 

continued viability of statutory 

withholding of removal, as referenced in 

the preamble to the NPRM, meets the 

United States’ non-refoulement 

obligations. Commenters asserted that 

this is a misreading of the scope of both 

domestic and international obligations. 

As an initial matter, commenters 

averred that the Refugee Act of 1980, as 

implemented, was designed to give full 

force to the United States’ obligations 

under the Refugee Convention, to the 

extent applicable by incorporation in 

the 1967 Protocol. Commenters argued 

that these obligations are not limited to 

one article of the Refugee Convention 

and are not limited to not returning an 

individual to a country where he or she 

would face persecution or other severe 

harm. Rather, commenters asserted, the 

obligations also require the United 

States to ensure that refugees are treated 

fairly and with dignity, and are 

guaranteed freedom of movement and 

rights to employment, education, and 

other basic needs. Commenters also 

cited the Refugee Convention’s 

provision to provide a pathway to 

permanent status for refugees, which the 

commenters asserted is reflected in the 

asylum scheme implemented by the 

Refugee Act, not the statutory 

withholding of removal provisions. 

Commenters argued that narrowing the 

opportunity to receive asylum through 

the implementation of numerous 

regulatory obstacles makes asylum—and 

therefore permanent status— 

unattainable, which is inconsistent with 

the United States’ obligations under 

U.S. and international law. Commenters 

also generally asserted that allowing 

immigration judges to pretermit 

applications for asylum violates the 

principle of non-refoulement. 

Commenters generally asserted that 

the culmination of the proposed rule’s 

procedural and substantive changes 

subvert the purpose of the Refugee Act, 

which was to implement the United 

States’ commitments made through 

ratification of the 1967 Protocol. 

Further, one organizational commenter 

argued that the proposed rule ‘‘reorients the U.S. asylum process away 

from a principled, humanitarian 

approach focused on identifying 

individuals with international 

protection needs towards one that 

establishes a set of obstacles which must 

be overcome by individuals seeking 

international protection.’’ Commenters 

also criticized the Departments’ 

statements that the continued viability 

of statutory withholding of removal 

ensures continued compliance with 

international obligations. Specifically, 

commenters noted that many of the 

provisions of the proposed rule also 

affect eligibility for protection under 

statutory withholding of removal. 

Commenters argued that the proposed 

changes that affect statutory 

withholding of removal would not 

adequately meet the United States’ 

obligations under the non-refoulement 

provisions of Article 33. 

Response: This rule is consistent with 

the United States’ obligations as a party 

to the 1967 Protocol, which incorporates 

Articles 2 through 34 of the 1951 

Refugee Convention.84 This rule is also 

consistent with U.S. obligations under 

Article 3 of the CAT, as implemented in 

the immigration regulations pursuant to 

the implementing legislation. 

Regarding the CRC, as an initial point, 

although the United States has signed 

the instrument, the United States has 

not ratified it; thus, it cannot establish 

any binding obligations. See MartinezLopez v. Gonzales, 454 F.3d 500, 502 

(5th Cir. 2006) (‘‘The United States has 

not ratified the CRC, and, accordingly, 

the treaty cannot give rise to an 

individually enforceable right.’’). 

Moreover, contrary to commenters’ 

assertions, nothing in the rule is 

inconsistent with the CRC. Under the 

CRC, states are obligated to ‘‘take 

appropriate measures to ensure that a 

child who is seeking refugee status or 

who is considered a refugee in 

accordance with applicable 

international or domestic law and 

procedures shall, whether 

unaccompanied or accompanied by his 

or her parents or by any other person, 

receive appropriate protection and 

humanitarian assistance in the 

enjoyment of applicable rights set forth 

in the present Convention and in other 

international human rights or 

humanitarian instruments to which the 

said States are Parties.’’ Convention on 

the Rights of the Child, art. 22, opened 

for signature Nov. 20, 1989, 28 I.L.M. 

1448. Because this rule is consistent 

with the Refugee Act and the United 

States’ obligations under the Refugee 


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85The Departments note that reliance on CSX 

Transportation is misplaced because that case 

involved the agency’s consideration of costs to 

determine a maximum relief penalty amount and 

was not related to the consideration of costs in the 

context of an agency’s required cost-benefit 

analysis. 

Convention and Article 3 of the CAT, it 

is consistent with the CRC. 

Similarly, the Departments disagree 

with commenters’ assertions that the 

rule violates the CRC by creating a 

presumption against ‘‘child-specific 

forms of persecution.’’ As an initial 

point, nothing in the rule singles out 

children or ‘‘child-specific’’ claims; 

rather, the rule applies to all types of 

claims regardless of the demographic 

characteristics of the applicant. 

Moreover, although certain types of 

children are afforded more protections 

by statute than similarly-situated nonchild asylum applicants, see e.g., INA 

208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C), this 

rule does not affect those protections. 

Further, generally applicable legal 

requirements, including credibility 

standards and burdens of proof, are not 

relaxed or obviated for juvenile 

respondents. See EOIR, Operating 

Policies and Procedures Memorandum 

17–03: Guidelines for Immigration Court 

Cases Involving Juveniles, Including 

Unaccompanied Alien Children 7 (Dec. 

20, 2017), https://www.justice.gov/eoir/ 

file/oppm17-03/download. 

The UDHR is a non-binding human 

rights instrument, not an international 

agreement; thus it does not impose legal 

obligations on the United States. 

Alvarez-Machain, 542 U.S. at 728, 734– 

35 (citing John P. Humphrey, The U.N. 

Charter and the Universal Declaration 

of Human Rights, in The International 

Protection of Human Rights 39, 50 (Evan 

Luard ed., 1967) (quoting Eleanor 

Roosevelt as stating that the UDHR is 

‘‘ ‘a statement of principles . . . setting 

up a common standard of achievement 

for all peoples and all nations’ and ‘not 

a treaty or international agreement . . . 

impos[ing] legal obligations.’ ’’)). 

Moreover, although article 14(1) of the 

UDHR proclaims the right of ‘‘everyone’’ 

to ‘‘seek and to enjoy’’ asylum, it does 

not purport to state specific standards 

for establishing asylum eligibility, and it 

certainly cannot be read to impose an 

obligation on the United States to grant 

asylum to ‘‘everyone,’’ see id., or to 

prevent the Attorney General and 

Secretary from exercising the discretion 

granted by the INA, consistent with U.S. 

obligations under international law, see 

UNHCR, Advisory Opinion on the 

Extraterritorial Application of NonRefoulement Obligations under the 1951 

Convention relating to the Status of 

Refugees and its 1967 Protocol 3 (Jan. 

26, 2007), https://www.unhcr.org/ 

4d9486929.pdf (‘‘The principle of nonrefoulement as provided for in Article 

33(1) of the 1951 Convention does not, 

as such, entail a right of the individual 

to be granted asylum in a particular 

State.’’). 

Similarly, the Departments disagree 

with commenters’ unsupported 

assertions that the United States’ 

obligation to ‘‘as far as possible facilitate 

the assimilation and naturalization of 

refugees’’ requires a general 

presumption in favor of granting asylum 

to all individuals who apply. Rather, as 

the Supreme Court has noted, Article 34 

‘‘is precatory; it does not require the 

implementing authority actually to grant 

asylum to all those who are eligible.’’ 

Cardoza-Fonseca, 480 U.S. at 441. 

Moreover, the United States 

implemented the non-refoulement 

provision of Article 33(1) of the Refugee 

Convention through the withholding of 

removal provision at section 241(b)(3) of 

the Act, 8 U.S.C. 1231(b)(3), and the 

non-refoulement provision of Article 3 

of the CAT through the CAT regulations, 

rather than through the asylum 

provisions at section 208 of the Act, 8 

U.S.C. 1158. See Cardoza-Fonseca, 480 

U.S. at 429, 440–41 & n.25; Matter of O– 

F–A–S–, 27 I&N Dec. at 712; FARRA; 8 

CFR 208.16(b), (c), 208.17 through 

208.18; 1208.16(b), (c); 1208.17 through 

1208.18. This rule’s limitations on 

asylum, including the ability of 

immigration judges to pretermit 

applications, do not violate the United 

States’ non-refoulement obligations. 

At the same time, the changes to 

statutory withholding of removal and 

CAT protection do not misalign the rule 

with the non-refoulement provisions of 

the 1951 Refugee Convention, the 1967 

Protocol, and the CAT. As explained 

above, the Departments have properly 

asserted additional standards and 

clarification for immigration judges to 

follow when evaluating claims for 

statutory withholding of removal and 

protection under the CAT. 

6.9. Executive Order 12866 and Costs 

and Benefits of the Rule; Regulatory 

Flexibility Act 

Comment: At least one commenter 

alleged that the rule creates ‘‘serious 

inconsistencies’’ with sections 208(a) 

and 240(b) of the Act, 8 U.S.C. 1158(a), 

1229a(b), and the Constitution; as a 

result, commenters stated, the rule 

constitutes a ‘‘significant regulatory 

action’’ under Executive Order 12866 

and the Departments must comply with 

the order’s analysis requirements, 

specifically sections 6(a)(3)(B) and (C). 

Multiple organizations claimed that 

the costs and benefits section of the rule 

fails to address the cost to the 

‘‘reputation’’ of the United States, as 

well as the cost of losing the ‘‘talent, 

diversity, and innovation’’ brought by 

asylees. 

Another organization emphasized that 

it is difficult to evaluate whether the 

Departments’ ‘‘multiple overlapping 

proposals to amend the same asylum 

provisions’’ comply with Executive 

Order 12866’s mandate that ‘‘[e]ach 

agency shall avoid regulations that are 

inconsistent, incompatible, or 

duplicative with its other regulations or 

those of other Federal agencies.’’ Citing 

CSX Transportation, Inc. v. Surface 

Transportation Board, 754 F.3d 1056, 

1065–66 (D.C. Cir. 2014), the 

organization claimed it would be 

‘‘arbitrary and capricious’’ for the 

Departments to account for costs and 

benefits in favor of this proposal that are 

identical to the costs and benefits 

‘‘already priced into the other revisions 

of the same provision.’’ 85 The 

organization contended that there is no 

indication in the rule that the 

Departments have attempted to identify 

such overlap. 

Commenters disagreed with the 

Department’s assertion, pursuant to the 

Regulatory Flexibility Act (‘‘RFA’’) 

requirements, that the rule would ‘‘not 

have a significant economic impact on 

a substantial number of small entities’’ 

and that the rule only regulates 

individuals and not small entities. 85 

FR at 36288–89. For example, 

commenters argued that the combined 

effect of the rule’s provisions would, 

inter alia, affect how practitioners 

accept cases, manage dockets, or assess 

fees. Commenters asserted that these 

effects would, in turn, impact the 

overall ability of practitioners to provide 

services and affect aliens’ access to 

representation. In addition, commenters 

stated that these changes demonstrate 

the rule would in fact regulate small 

entities, namely the law firms or other 

organizations who appear before the 

Departments. 

Response: The Departments agree 

with commenters that the rule is a 

‘‘significant regulatory action.’’ As 

stated in the proposed rule at section 

V.D, the rule was considered a 

‘‘significant regulatory action.’’ 85 FR at 

36289. As a result, the rule was 

submitted to the Office of Management 

and Budget for review, and the 

Departments included the required 

analysis of the rule’s costs and benefits. 

Id. at 36289–90. 

Regarding commenters’ concerns that 

the analysis failed to consider intangible 

costs like alleged costs to the United 

States’ reputation or the lost ‘‘talent, 

diversity, and innovation’’ from asylees, 


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the Departments note that such alleged 

costs are, in fact, the nonquantifiable 

opinions of the commenters. The 

Departments are not required to analyze 

opinions. Even if commenters’ opinions 

about intangible concepts without clear 

definitions could be translated into 

measurable or qualitatively discrete 

considerations the Departments are 

unaware of any standard or metric to 

evaluate the cost of concepts such a 

country’s reputation or ‘‘innovation.’’ 

Moreover, the fact-specific nature of 

asylum applications and the lack of 

granular data on the facts of every 

asylum application prevent the 

Departments from quantifying particular 

costs. Further, although Executive Order 

12866 observes that nonquantifiable 

costs are important to consider, the 

order requires their consideration only 

to the extent that they can be usefully 

estimated, and the Departments 

properly assessed the rules using 

appropriate qualitative considerations. 

See 85 FR at 36289–90. 

As stated above in Section II.C.6.9 of 

this preamble, each of the Departments’ 

regulations stands on its own. This 

regulation is not ‘‘inconsistent, 

incompatible, or duplicative’’ with other 

proposed or final rules published by the 

Departments, and the Departments 

disagree with the implication that all 

rules that would affect one underlying 

area of the Act, such as asylum 

eligibility, must be issued in one single 

rulemaking to comply with Executive 

Order 12866. Cf. Ctr. for Biological 

Diversity v. EPA, 722 F.3d 401, 410 

(D.C. Cir. 2013) (agencies have 

discretion to address an issue through 

different rulemakings over time). 

As noted in the NPRM, the 

Departments believe that the rule will 

provide a significant net benefit by 

allowing for the expeditious and 

efficient resolution of asylum cases by 

reducing the number of meritless claims 

before the immigration courts, thereby 

providing the Departments with ‘‘the 

ability to more promptly grant relief or 

protection to qualifying aliens.’’ 85 FR 

at 36290. These benefits will ensure that 

the Departments’ case volumes do not 

increase to an insurmountable degree, 

which in turn will leave additional 

resources available for a greater number 

of asylum seekers. Contrary to 

commenters’ claims, the rule will not 

prevent aliens from submitting asylum 

applications or receiving relief or 

protection in appropriate cases. 

Moreover, the rule is not imposing any 

new costs on asylum seekers. 

Additionally, any costs imposed on 

attorneys or representatives for asylum 

seekers will be minimal and limited to 

the time it will take to become familiar 

with the rule. Immigration practitioners 

are already subject to professional 

responsibility rules regarding workload 

management, 8 CFR 1003.102(q)(1), and 

are already accustomed to changes in 

asylum law based on the issuance of 

new precedential decisions from the 

BIA or the courts of appeals. 

Also, although becoming familiar 

with such a decision or with this rule 

may require a certain, albeit small, 

amount of time, any time spent on this 

process will likely be offset by the 

future benefits of the rule. Indeed, one 

purpose of the rule is to encourage 

clearer and more efficient adjudications, 

see e.g., 85 FR at 36290, thus reducing 

the need for practitioners to become 

familiar with the inefficient, case-bycase approach that is currently 

employed for adjudicating issues such 

as firm resettlement. In addition, the 

Departments note that the prospective 

application of the rule will further 

diminish the effect of the rule on 

practitioners, as no practitioners will be 

required to reevaluate any cases or 

arguments that they are currently 

pursuing. 

The Departments also reject the 

assertion that the rule would have a 

significant impact on small entities. The 

rule applies to asylum applicants, who 

are individuals, not entities. See 5 

U.S.C. 601(6). The rule does not limit in 

any way the ability of practitioners to 

accept cases, manage dockets, or assess 

fees. Indeed, nothing in the rule in any 

fashion regulates the legal 

representatives of such individuals or 

the organizations by which those 

representatives are employed, and the 

Departments are unaware of cases in 

which the RFA’s requirements have 

been applied to legal representatives of 

entities subject to its provisions, in 

addition to or in lieu of the entities 

themselves. See 5 U.S.C. 603(b)(3) 

(requiring that an RFA analysis include 

a description of and, if feasible, an 

estimate of the number of ‘‘small 

entities’’ to which the rule ‘‘will 

apply’’). To the contrary, case law 

indicates that indirect effects on entities 

not regulated by a proposed rule are not 

subject to an RFA analysis. See, e.g., 

Mid-Tex Elec. Co-op, Inc. v. FERC, 773 

F.2d 327, 342–43 (D.C. Cir. 1985) (‘‘[W]e 

conclude that an agency may properly 

certify that no regulatory flexibility 

analysis is necessary when it determines 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities that are subject 

to the requirements of the rule. . . . 

Congress did not intend to require that 

every agency consider every indirect 

effect that any regulation might have on 

small businesses in any stratum of the 

national economy. That is a very broad 

and ambitious agenda, and we think 

that Congress is unlikely to have 

embarked on such a course without 

airing the matter.’’); Cement Kiln 

Recycling Coalition v. EPA, 255 F.3d 

855, 869 (D.C. Cir. 2001) (‘‘Contrary to 

what [petitioner] supposes, application 

of the RFA does turn on whether 

particular entities are the ‘targets’ of a 

given rule. The statute requires that the 

agency conduct the relevant analysis or 

certify ‘no impact’ for those small 

businesses that are ‘subject to’ the 

regulation, that is, those to which the 

regulation ‘will apply.’. . . The rule 

will doubtless have economic impacts 

in many sectors of the economy. But to 

require an agency to assess the impact 

on all of the nation’s small businesses 

possibly affected by a rule would be to 

convert every rulemaking process into a 

massive exercise in economic modeling, 

an approach we have already rejected.’’ 

(citing Mid-Tex, 773 F.2d 327 at 343)); 

see also White Eagle Co-op Ass’n v. 

Conner, 553 F.3d 467, 480 (7th Cir. 

2009) (‘‘The rule that emerges from this 

line of cases is that small entities 

directly regulated by the proposed 

[rulemaking]—whose conduct is 

circumscribed or mandated—may bring 

a challenge to the RFA analysis or 

certification of an agency. . . . 

However, when the regulation reaches 

small entities only indirectly, they do 

not have standing to bring an RFA 

challenge.’’). 

Further, DOJ reached a similar 

conclusion in 1997 involving a broader 

rulemaking regarding asylum 

adjudications. See Inspection and 

Expedited Removal of Aliens; Detention 

and Removal of Aliens; Conduct of 

Removal Proceedings; Asylum 

Procedures, 62 FR 444, 453 (Jan. 3, 

1997) (certifying that the rule would not 

have a significant impact on a 

substantial number of small entities 

because it ‘‘affects only Federal 

government operations’’ by revising the 

procedures for the ‘‘examination, 

detention, and removal of aliens’’). That 

conclusion was reiterated in the interim 

rule, 62 FR 10312, 10328 (Mar. 6, 1997), 

which was adopted with no noted 

challenge or dispute. This final rule is 

similar, in that it, too, affects only the 

operations of the Federal government by 

amending a subset of the procedures the 

government uses to process certain 

aliens. The Departments thus believe 

that the experience of implementing the 

prior rule supports their conclusion that 

there is no evidence that the current 

rule will have a significant impact on 

small entities as contemplated by the 

RFA or an applicable executive order. 


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86UAC are children who (1) have no lawful 

immigration status in the United States, (2) are 

under the age of 18, and (3) do not have a parent 

or legal guardian in the United States or, if in the 

United States, available to provide care and 

physical custody. 6 U.S.C. 279(g)(2). 

87As a practical matter, the Departments note that 

the statutory mens rea requirement that a frivolous 

asylum application be ‘‘knowingly’’ filed will likely 

preclude a frivolousness finding against very young 

UAC. 

6.10. Trafficking Victims Protection 

Reauthorization Act 

Comment: Commenters argued that 

the proposed rule violates the William 

Wilberforce Trafficking Victims 

Protection Reauthorization Act of 2008 

(‘‘TVPRA’’), Public Law 110–457, 122 

Stat. 5044, by failing to consider its 

impact on applications for relief 

submitted by UAC. Specifically, 

commenters cited the TVPRA’s 

instruction that ‘‘[a]pplications for 

asylum and other forms of relief from 

removal in which an unaccompanied 

alien child is the principal applicant 

shall be governed by regulations which 

take into account the specialized needs 

of unaccompanied alien children and 

which address both procedural and 

substantive aspects of handling 

unaccompanied alien children’s cases.’’ 

8 U.S.C. 1232(d)(8). Commenters 

averred that the rule fails to consider 

how UAC are subjected to and affected 

by persecution and other harm as well 

as the particular vulnerabilities of UAC. 

Moreover, commenters argued that 

the proposed rule violates both the text 

and the spirit of the TVPRA by creating 

additional hurdles that increase the risk 

that UAC will be unable to meaningfully 

participate in the adjudication of their 

claims for relief. Specifically, 

commenters averred that it was unlikely 

that Congress would have provided 

protections to UAC from the bars to 

asylum related to the one-year filing 

deadline and the safe third country, 

only to then allow immigration judges 

to pretermit applications for asylum 

without a hearing. 

One organizational commenter 

criticized the proposed rule’s lack of 

‘‘meaningful discussion’’ regarding how 

the new procedures would interact with 

USCIS’s initial jurisdiction over 

applications for asylum from UAC. 

Commenters also stated that the 

proposed rule may result in confusion if 

an immigration judge exercises 

jurisdiction over a UAC’s application 

that is pending before USCIS. If this 

were to occur, commenters alleged, the 

UAC may be required to submit two 

applications for asylum and also be 

required to demonstrate an exception to 

the one-year filing deadline that would 

not have been applicable to the 

application before USCIS. 

Commenters also asserted that the 

new discretionary factor regarding 

accrual of one year or more of unlawful 

presence would act as a bar to asylum 

in direct contradiction of Congress’s 

recognition of the need to exempt UACs 

from the one-year filing deadline. 

Although commenters acknowledged 

that this is a discretionary factor and not 

an outright bar, commenters asserted 

that even including this as a 

discretionary factor is contrary to 

Congress’s intent. 

Commenters stated that, based on the 

proposed regulatory language and 

accompanying preamble language, it is 

unclear whether asylum officers would 

be permitted to render a determination 

that an asylum application is frivolous 

for UAC who file defensive applications 

before USCIS in the first instance. By 

permitting the asylum officer to focus 

on matters that may be frivolous if the 

asylum officer identifies indicators of 

frivolousness, commenters asserted, the 

interview would become adversarial, in 

contradiction of Congress’s purpose of 

granting UAC the non-adversarial, 

child-appropriate setting of an asylum 

interview for initial review of the 

asylum application. 

Response: As recognized in the 

proposed rule, UAC86 are not subjected 

to expedited removal. See 8 U.S.C. 

1232(a)(5)(D)(i). Regarding the 

remainder of the rule, the rule does not 

violate the TVPRA. The TVPRA enacted 

multiple procedures and protections 

specific to UAC that do not apply to 

other similarly-situated asylum 

applicants. Although UAC are not 

subject to either the safe third country 

exception or the requirement to file an 

application within one year following 

the alien’s arrival in the United States, 

INA 208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E), 

Congress did not exempt UAC from all 

bars to asylum eligibility. As a result, 

UAC, like all asylum seekers, (1) may 

not apply for asylum if they previously 

applied for asylum and their application 

was denied, INA 208(a)(2)(C), 8 U.S.C. 

1158(a)(2)(C), and (2) are ineligible for 

asylum if they are subject to any of the 

mandatory bars at section 

208(b)(2)(A)(i)–(vi) of the Act, 8 U.S.C. 

1158(b)(2)(A)(i)–(vi), or if they are 

subject to any additional bars 

implemented pursuant to the Attorney 

General’s and Secretary’s authority to 

establish additional limitations on 

asylum eligibility by regulation, see INA 

208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). That 

Congress did not exempt UAC from all 

bars indicates congressional intent to 

hold UAC to the same standards to 

establish eligibility for asylum as other 

similarly situated applicants unless 

specifically exempted. 

Contrary to commenters’ suggestion, 

this rule does not alter asylum officers’ 

jurisdiction over asylum applications 

from UAC. See INA 208(b)(3)(C), 8 

U.S.C. 1158(b)(3)(C). If UAC are placed 

in removal proceedings under section 

240 of the Act, 8 U.S.C. 1229a, and raise 

asylum claims, immigration judges will 

continue to refer the claims to asylum 

officers pursuant to the TVPRA, 

consistent with the asylum statute and 

procedures in place prior to the 

promulgation of this rule. See INA 

208(b)(3)(C), 8 U.S.C 1158(b)(3)(C). 

Those asylum officers will determine 

whether the UAC are eligible for asylum 

on the basis of this rule. This rule does 

not affect any other procedure or 

protection implemented by the TVPRA. 

The Departments disagree that the 

rule undermines the spirit of the TVPRA 

by adding accrual of unlawful presence 

for one year or more as a negative 

discretionary factor. Although the 

NPRM may have been unclear on the 

point, its citation to INA 212(a)(9)(B) 

and (C), 8 U.S.C. 1182(a)(9)(B) and (C), 

85 FR at 36284, indicated that its intent 

was for the phrase ‘‘unlawful presence’’ 

to have the same meaning as in INA 

212(a)(9)(B)(ii) and (iii), 8 U.S.C. 

1182(a)(9)(B)(ii) and (iii). Under INA 

212(a)(9)(B)(iii)(I), 8 U.S.C. 

1182(a)(9)(B)(iii)(I), aliens under the age 

of 18, such as UAC, do not accrue 

unlawful presence. Thus, commenters’ 

concerns are unfounded, and the 

Departments are clarifying that point in 

the final rule. 

Further, the Departments have 

concluded that the safeguards in place 

for allowing asylum officers to make a 

finding that an asylum application is 

frivolous are sufficient to protect UAC 

in the application process.87 Even if an 

asylum officer finds an application is 

frivolous, the application is referred to 

an immigration judge, who provides 

review of the determination. The 

asylum officer’s determination does not 

render the applicant permanently 

ineligible for immigration benefits 

unless the immigration judge or the BIA 

also makes a finding of frivolousness. 8 

CFR 208.20(b), 1208.20(b). Further, 

asylum officers continue to conduct 

child appropriate interviews by taking 

into account age, stage of language 

development, background, and level of 

sophistication. See USCIS, Interviewing 

Procedures for Minor Applicants (Aug. 

6, 2020), https://www.uscis.gov/ 

humanitarian/refugees-and-asylum/ 

asylum/minor-children-applying-forasylum-by-themselves. 

Finally, the Departments note that, for 

UAC who are not eligible for asylum 


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88 In addition to serving as a bar to refugee 

admission and the granting of asylum, the concept 

of firm resettlement also operates as a bar to the 

adjustment of status of an asylee. INA 209(b)(4), 8 

U.S.C. 1159(b)(4); 8 CFR 209.2(a)(1)(iv) and 

1209.2(a)(1)(iv). Consistent with the prospective 

nature of the rule, the Departments will apply the 

new regulatory definitions of ‘‘firm resettlement’’ in 

8 CFR 208.15 and 1208.15 for purposes of INA 

209(b)(4), 8 U.S.C. 1159(b)(4), only to aliens who 

apply for asylum, are granted asylum, and then 

subsequently apply for adjustment of status, where 

all of these events occur on or after the effective 

date of this rule. 

under this rule but who may still be 

eligible for withholding of removal 

under section 241 of the Act, 8 U.S.C. 

1231, or protection under the CAT 

regulations, DOJ is cognizant of the 

‘‘special circumstances’’ often presented 

by juvenile respondents in immigration 

proceedings. DOJ’s immigration judges 

may make certain modifications to 

ordinary courtroom proceedings to 

account for juvenile respondents that 

would not be made for adult 

respondents. See EOIR, Operating 

Policies and Procedures Memorandum 

17–03: Guidelines for Immigration Court 

Cases Involving Juveniles, Including 

Unaccompanied Alien Children 4–6 

(Dec. 20, 2017), https://www.justice.gov/ 

eoir/file/oppm17-03/download; see also 

id. at 7 (directing immigration judges to 

take ‘‘special care’’ in cases involving 

UAC by, for example, expediting the 

consideration of requests for voluntary 

departure). 

In short, the Departments have fully 

considered whether the rule will have 

any particular impacts on UAC that are 

not already accounted for in existing 

law or are not addressed in the rule 

itself. The Departments have also fully 

considered commenters’ concerns. 

Thus, for the reasons given above, the 

Departments believe that the rule does 

not have an unlawful impact on minors 

in general or on UAC in particular. 

7. Retroactive Applicability 

Comment: One organization stated 

generally that nearly all of the NPRM’s 

provisions are illegally retroactive in 

effect. Multiple commenters noted that, 

although the NPRM seeks to make its 

frivolous definition prospective only in 

application, see 85 FR at 36304, it is 

silent as to whether its other provisions 

would apply retroactively. As a result, 

one organization claimed, the inference 

is that the Departments intend each of 

the NPRM’s remaining provisions to 

apply to applications that are pending at 

the time the rule becomes effective. The 

organization alleged that this would 

violate the presumption against 

retroactivity, noting that a regulation 

cannot be applied retroactively unless 

Congress has provided a clear statement 

that the agencies may promulgate 

regulations with that effect. See INS v. 

St. Cyr, 533 U.S. 289, 316–17 (2001). 

The organization also claimed there is 

no statute authorizing the Departments 

to promulgate regulatory changes to 

asylum that have retroactive effect, 

contending the provisions of the NPRM 

would either impair rights concerning, 

or place new disabilities on, asylum 

applications already filed. The 

organization alleged that the proposed 

changes in the NPRM would harm 

asylum seekers. 

At least one organization claimed that 

the NPRM’s substantive standards 

would have an impermissible 

retroactive effect on pending 

applications. One organization alleged 

that each standard, including the list of 

bars to the favorable exercise of 

discretion, would overrule BIA 

precedent, attempt to overrule Federal 

appellate court precedent, shift burdens 

of proof, or otherwise change settled 

law. Another organization noted that 

there are currently more than 300,000 

asylum cases pending before the asylum 

office and almost 1.2 million cases 

pending before the U.S. immigration 

courts, many of which include asylum 

applications. The organization argued 

that, if the rule is finalized, the 

Departments ‘‘must clarify’’ that its 

provisions will not be applied 

retroactively. 

One commenter claimed that if the 

rule is enacted with the retroactive 

provisions intact, it will immediately be 

enjoined. 

At least one commenter expressed 

concern that, if the NPRM is applied 

retroactively, there will be ‘‘mass 

denials which violate due process,’’ and 

the Departments will be ‘‘tied up in 

Federal court for the next decade.’’ At 

least one commenter contended that 

Congress will cease to fund the 

Departments because it will recognize 

that the money will be used to fund the 

attorney fees of litigants pursuant to the 

Equal Access to Justice Act ‘‘after 

countless litigants prevail in their suits 

against [the Departments].’’ 

At least one commenter claimed that, 

because the Supreme Court is currently 

attempting to ‘‘reign in the 

administrative state’’ and Congress is 

‘‘fed up’’ with agency waste, the 

Departments are ‘‘signing their own 

death warrants’’ by seeking to enact the 

proposed rule. At least one commenter 

suggested the Departments’ goal is to 

‘‘[s]hut down legal immigration by 

convincing Congress to defund the only 

agencies capable of adjudicating 

immigration petitions,’’ suggesting this 

is ‘‘treasonous’’ and claiming that those 

who want to end legal immigration are 

in the extreme minority. At least one 

commenter emphasized that legal 

immigration is beneficial to the national 

economy but suggested this does not 

matter if those who care ‘‘are not in a 

position to stop the train before it drives 

off a cliff.’’ 

At least one organization claimed that 

the hundreds of thousands of pending 

asylum applications implicate a reliance 

interest in ‘‘the state of the law as it 

stands.’’ At least one organization 

alleged that this reliance interest is 

‘‘further prejudiced’’ by the 30-day 

comment period allowed by the 

Departments, contending that ‘‘in one 

swoop, previously eligible applicants 

may find themselves ineligible without 

any warning.’’ 

Another organization expressed 

particular concern for LGBTQ 

applicants, claiming that applying the 

rule’s standards to over 800,000 pending 

applications violates Fifth Amendment 

due process rights that apply ‘‘equally to 

all people in the United States.’’ One 

organization emphasized that the rule 

would apply to individuals, many of 

whom have U.S.-born children, who 

have already applied for asylum and are 

waiting on a hearing or interview. 

Response: Although the Departments 

believe that substantial portions of the 

rule are most appropriately classified as 

a clarification of existing law rather than 

an alteration of prior substantive law, 

see Levy v. Sterling Holding Co., LLC, 

544 F.3d 493, 506 (3d Cir. 2008) (‘‘Thus, 

where a new rule constitutes a 

clarification—rather than a substantive 

change—of the law as it existed 

beforehand, the application of that new 

rule to pre-promulgation conduct 

necessarily does not have an 

impermissible retroactive effect, 

regardless of whether Congress has 

delegated retroactive rulemaking power 

to the agency.’’ (emphasis in original)), 

they nevertheless recognize that the 

potential retroactivity of the rule was 

not clear in the NPRM. Accordingly, to 

the extent that the rule changes any 

existing law, the Departments are 

electing to make the rule prospective to 

apply to all asylum applications— 

including applications for statutory 

withholding of removal and protection 

under the CAT regulations—filed on or 

after its effective date and, for purposes 

of the changes to the credible fear and 

related screening procedures, and 

reasonable fear review procedures, to all 

aliens apprehended or otherwise 

encountered by DHS on or after the 

effective date.88 Nevertheless, to the 

extent that the rule merely codifies 

existing law or authority, nothing in the 

rule precludes adjudicators from 


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89For example, the rule states that the Secretary 

or Attorney General, subject to an exception, will 

not favorably exercise discretion in adjudicating an 

asylum application for an alien who has failed to 

satisfy certain tax obligations. 8 CFR 

208.13(d)(2)(i)(E) and 1208.13(d)(2)(i)(E). That 

provision applies only to asylum applications filed 

on or after the effective date of the rule. However, 

the rule does not preclude the consideration of 

unfulfilled tax obligations as a discretionary 

consideration in adjudicating a pending asylum 

application based on established case law that may 

be applied to pending applications. See, e.g., Matter 

of A–H–, 23 I&N Dec. at 782–83 (‘‘Moreover, certain 

additional factors weigh against asylum for 

respondent: Specifically, respondent testified that 

he received money from overseas for his political 

work, yet he never filed income tax returns in the 

United States and his children nevertheless 

received financial assistance from the 

Commonwealth of Virginia. Respondent’s apparent 

tax violations and his abuse of a system designed 

to provide relief to the needy exhibit both a 

disrespect for the rule of law and a willingness to 

gain advantage at the expense of those who are 

more deserving.’’ (footnote omitted)). In short, 

existing law will continue to apply to asylum 

applications filed prior to the effective date of this 

rule, regardless of whether that law is altered or 

incorporated into the rule. 

applying that existing authority to 

pending cases independently of the 

prospective application of the rule.89

The Departments decline to respond 

to commenters’ assertions about 

potential implications that the rule’s 

application to pending cases may have, 

such as ‘‘mass denials’’ of asylum 

applications and impact on future 

appropriations, as such comments are 

both unmoored from a reasonable basis 

in fact and wholly speculative due to 

the case-by-case and fact-intensive 

nature of many asylum-application 

adjudications. Further, as noted, the 

Departments are applying the rule 

prospectively, so the underlying factual 

premise of the commenters’ concern is 

erroneous. 

8. Miscellaneous/Other Points 

8.1. Likelihood of Litigation 

Comment: Commenters opposed the 

rule because it would ‘‘create a flurry of 

litigation’’ causing ‘‘fundamental 

aspects of immigration law [to] remain 

uncertain for many years.’’ 

Response: The Departments recognize 

that litigation, including the potential 

for an initial nationwide injunction, has 

become almost inevitable regarding any 

immigration policy or regulation that 

does not provide a perceived benefit to 

aliens, and they are aware that litigation 

will likely follow this rule, just as it has 

others of similar scope. Cf. DHS v. New 

York, 140 S. Ct. 599, 599 (2020) 

(Gorsuch, J. concurring in the grant of a 

stay) (‘‘On October 10, 2018, the 

Department of Homeland Security began 

a rulemaking process to define the term 

‘public charge,’ as it is used in the 

Nation’s immigration laws. 

Approximately 10 months and 266,000 

comments later, the agency issued a 

final rule. Litigation swiftly followed, 

with a number of States, organizations, 

and individual plaintiffs variously 

alleging that the new definition violates 

the Constitution, the Administrative 

Procedure Act, and the immigration 

laws themselves. These plaintiffs have 

urged courts to enjoin the rule’s 

enforcement not only as it applies to 

them, or even to some definable group 

having something to do with their 

claimed injury, but as it applies to 

anyone.’’). The Departments are also 

aware of the pernicious effects of 

nationwide injunctions. See, e.g., 

Trump v. Hawaii, 138 S. Ct. 2392, 2424– 

25 (2018) (Thomas, J. concurring) 

(‘‘Injunctions that prohibit the Executive 

Branch from applying a law or policy 

against anyone—often called ‘universal’ 

or ‘nationwide’ injunctions—have 

become increasingly common. District 

courts, including the one here, have 

begun imposing universal injunctions 

without considering their authority to 

grant such sweeping relief. These 

injunctions are beginning to take a toll 

on the Federal court system—preventing 

legal questions from percolating through 

the Federal courts, encouraging forum 

shopping, and making every case a 

national emergency for the courts and 

for the Executive Branch.’’ (footnote 

omitted)). The Departments do not 

believe, however, that the inevitability 

of litigation over contested issues is a 

sufficient basis to stop them from 

exercising statutory and regulatory 

prerogatives in furtherance of the law 

and the policies of the Executive 

Branch. Accordingly, the Departments 

decline the invitation to withdraw the 

rule due to the threat of litigation. 

8.2. DHS Officials 

Comment: Commenters also argued 

that the proposed rule is procedurally 

invalid due to concerns with the 

authority of multiple DHS officials. 

Commenters stated that the rule is 

invalid because of the service of Ken 

Cuccinelli at USCIS. For example, 

commenters cited L.M.–M. v. Cuccinelli, 

442 F. Supp. 3d 1 (D.D.C. 2020), in 

support of the argument that ‘‘Mr. 

Cuccinelli’s unlawful appointment 

invalidates any regulations that might 

be put into effect, implemented, or 

adopted during his tenure at USCIS.’’ 

Commenters further noted that Mr. 

Cuccinelli began serving as the head of 

USCIS over one year ago, on June 10, 

2019, despite the 210-day limitation for 

temporary appointments to senateconfirmed positions implemented by 

the Federal Vacancies Reform Act of 

1998 (‘‘FVRA’’), Public Law 105–277, 

sec. 151, 112 Stat. 2681, 2681–612 

through 2618–13 (codified at 5 U.S.C. 

3346). 

Similarly, commenters stated that 

Acting Secretary Chad Wolf and Chad 

Mizelle, the Senior Official Performing 

the Duties of the General Counsel, both 

are serving in violation of the FVRA 

and, accordingly, both lack signature 

authority that has force or effect. See 5 

U.S.C. 3348(d)(1). 

Response: Neither the NPRM nor this 

final rule was signed by Mr. Cuccinelli. 

Thus, the status of Mr. Cuccinelli’s 

service within the Department is 

immaterial to the lawfulness of this rule. 

The NPRM and this final rule were 

signed by Chad Mizelle, the Senior 

Official Performing the Duties of the 

General Counsel for DHS, and not by 

Ken Cuccinelli. As indicated in the 

proposed rule at Section V.H, Chad 

Wolf, the Acting Secretary of Homeland 

Security, reviewed and approved the 

proposed rule and delegated the 

signature authority to Mr. Mizelle. 

Secretary Wolf is validly acting as 

Secretary of Homeland Security. On 

April 9, 2019, then-Secretary Nielsen, 

who was Senate confirmed, used the 

authority provided by 6 U.S.C. 113(g)(2) 

to establish the order of succession for 

the Secretary of Homeland Security. 

This change to the order of succession 

applied to any vacancy. This exercise of 

the authority to establish an order of 

succession for DHS pursuant to 6 U.S.C. 

113(g)(2) superseded the FVRA and the 

order of succession found in Executive 

Order 13753, 81 FR 90667 (Dec. 9, 

2016). As a result of this change, and 

pursuant to 6 U.S.C. 113(g)(2), Kevin K. 

McAleenan, who was Senate-confirmed 

as the Commissioner of CBP, was the 

next successor and served as Acting 

Secretary without time limitation. 

Acting Secretary McAleenan 

subsequently amended the Secretary’s 

order of succession pursuant to 6 U.S.C. 

113(g)(2), placing the Under Secretary 

for Strategy, Policy, and Plans position 

third in the order of succession, below 

the positions of the Deputy Secretary 

and Under Secretary for Management. 

Because the Deputy Secretary and 

Under Secretary for Management 

positions were vacant when Mr. 

McAleenan resigned, Mr. Wolf, as the 

Senate-confirmed Under Secretary for 

Strategy, Policy, and Plans, was the next 

successor and began serving as the 

Acting Secretary. 

Further, because he has been serving 

as the Acting Secretary pursuant to an 

order of succession established under 6 

U.S.C. 113(g)(2), the FVRA’s prohibition 

on a nominee’s acting service while his 

or her nomination is pending does not 

apply, and Mr. Wolf remains the Acting 


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90Mr. Gaynor signed an order that established an 

identical order of succession on September 10, 

2020, the day Mr. Wolf’s nomination was 

submitted, but it appears he signed that order before 

the nomination was received by the Senate. To 

resolve any concern that his September 10 order 

was ineffective, Mr. Gaynor signed a new order on 

November 14, 2020. Prior to Mr. Gaynor’s new 

order, the U.S. District Court for the District of New 

York issued an opinion concluding that Mr. Gaynor 

did not have authority to act as Secretary, relying 

in part on the fact that DHS did not notify Congress 

of Administrator Gaynor’s service, as required 

under 5 U.S.C. 3349(a). See Batalla Vidal v. Wolf, 

No. 16CV4756NGGVMS, 2020 WL 6695076, at *9 

(E.D.N.Y. Nov. 14, 2020). The Departments disagree 

that the FVRA’s notice requirement affects the 

validity of an acting officer’s service; nowhere does 

section 3349 indicate that agency reporting 

obligations are tied to an acting officer’s ability to 

serve. 

91On October 9, 2020, the U.S. District Court for 

the District of Columbia issued an opinion 

indicating that it is likely that section 113(g)(2) 

orders can be issued by only Senate-confirmed 

secretaries of DHS and, thus, that Mr. Gaynor likely 

had no authority to issue a section 113(g)(2) 

succession order. See Nw. Immigrant Rights Project 

v. United States Citizenship & Immigration Servs., 

No. CV 19–3283 (RDM), 2020 WL 5995206, at *24 

(D.D.C. Oct. 8, 2020). This decision is incorrect 

because the authority in section 113(g)(2) allows 

‘‘the Secretary’’ to designate an order of succession, 

see 6 U.S.C. 113(g)(2), and an ‘‘acting officer is 

vested with the same authority that could be 

exercised by the officer for whom he acts.’’ In re 

Grand Jury Investigation, 916 F.3d 1047, 1055 (D.C. 

Cir. 2019). The Acting Secretary of DHS is 

accordingly empowered to exercise the authority of 

‘‘the Secretary’’ of DHS to ‘‘designate [an] order of 

succession.’’ 6 U.S.C. 113(g)(2). In addition, this is 

the only district court opinion to have reached such 

a conclusion about the authority of the Acting 

Secretary, and the Departments are contesting that 

determination. 

92On November 2, 2020, the Federal Labor 

Relations Authority ruled that immigration judges 

are management officials for purposes of 5 U.S.C. 

7103(a)(11), and, thus, excluded from a bargaining 

unit pursuant to 5 U.S.C. 7112(b)(1). U.S. Dept. of 

Justice, Exec. Office for Immigration Review and 

National Association of Immigration Judges, Int’l 

Fed. of Prof. and Tech. Engineers Judicial Council 

2, 71 FLRA No. 207 (2020). That decision 

effectively decertified the union that previously 

represented a bargaining unit of non-supervisory 

immigration judges. 

Secretary notwithstanding President 

Trump’s September 10 transmission to 

the Senate of Mr. Wolf’s nomination to 

serve as DHS Secretary. Compare 6 

U.S.C. 113(a)(1)(A) (cross-referencing 

the FVRA without the 

‘‘notwithstanding’’ caveat), with id. 

113(g)(1)–(2) (noting the FVRA 

provisions and specifying, in contrast, 

that section 113(g) provides for acting 

secretary service ‘‘notwithstanding’’ 

those provisions); see also 5 U.S.C. 

3345(b)(1)(B) (restricting acting officer 

service under section 3345(a), in 

particular, by an official whose 

nomination has been submitted to the 

Senate for permanent service in that 

position). 

That said, there have been recent 

challenges to whether Mr. Wolf’s service 

is invalid, resting on the erroneous 

contentions that the orders of 

succession issued by former Secretary 

Nielsen and former Acting Secretary 

McAleenan were invalid. The 

Departments believe those challenges 

are not based on an accurate view of the 

law. But even if those contentions are 

legally correct—meaning that neither 

former Secretary Nielsen nor former 

Acting Secretary McAleenan issued a 

valid order of succession under 6 U.S.C. 

113(g)(2)—then the FVRA would have 

applied, and Executive Order 13753 

would have governed the order of 

succession for the Secretary of 

Homeland Security from the date of 

Nielsen’s resignation. 

The FVRA provides an alternative 

basis for an official to exercise the 

functions and duties of the Secretary 

temporarily in an acting capacity. In 

that alternate scenario, under the 

authority of the FVRA, Mr. Wolf would 

have been ineligible to serve as the 

Acting Secretary of DHS after his 

nomination was submitted to the 

Senate, see 5 U.S.C. 3345(b)(1)(B), and 

Peter Gaynor, the Administrator of the 

Federal Emergency Management Agency 

(‘‘FEMA’’), would have—by operation of 

Executive Order 13753—become eligible 

to exercise the functions and duties of 

the Secretary temporarily in an acting 

capacity. This is because Executive 

Order 13753 pre-established the 

President’s succession order for DHS 

when the FVRA applies. Mr. Gaynor 

would have been the most senior official 

eligible to exercise the functions and 

duties of the Secretary under that 

succession order, and thus would have 

become the official eligible to act as 

Secretary once Mr. Wolf’s nomination 

was submitted to the Senate. See 5 

U.S.C. 3346(a)(2). Then, in this alternate 

scenario in which, as assumed above, 

there was no valid succession order 

under 6 U.S.C. 113(g)(2), the submission 

of Mr. Wolf’s nomination to the Senate 

would have restarted the FVRA’s time 

limits. See 5 U.S.C. 3346(a)(2). 

Out of an abundance of caution, and 

to minimize any disruption to DHS and 

to the Administration’s goal of 

maintaining homeland security, on 

November 14, 2020, with Mr. Wolf’s 

nomination still pending in the Senate, 

Mr. Gaynor exercised the authority of 

Acting Secretary that he would have 

had (in the absence of any governing 

succession order under 6 U.S.C. 

113(g)(2)) to designate a new order of 

succession under 6 U.S.C. 113(g)(2) (the 

‘‘Gaynor Order’’).90 In particular, Mr. 

Gaynor issued an order of succession 

with the same ordering of positions 

listed in former Acting Secretary 

McAleenan’s November 2019 order. The 

Gaynor Order thus placed the Under 

Secretary for Strategy, Policy, and Plans 

above the FEMA Administrator in the 

order of succession. Once the Gaynor 

Order was executed, it superseded any 

authority Mr. Gaynor may have had 

under the FVRA and confirmed Mr. 

Wolf’s authority to continue to serve as 

the Acting Secretary. Hence, regardless 

of whether Mr. Wolf already possessed 

authority pursuant to the November 8, 

2019, order of succession effectuated by 

former Acting Secretary McAleenan (as 

the Departments have previously 

concluded), the Gaynor Order provides 

an alternative basis for concluding that 

Mr. Wolf currently serves as the Acting 

Secretary.91

On November 16, 2020, Acting 

Secretary Wolf ratified any and all 

actions involving delegable duties that 

he took between November 13, 2019, 

through November 16 2020, including 

the NPRM that is the subject of this 

rulemaking. 

Under section 103(a)(1) of the Act, 8 

U.S.C. 1103(a)(1), the Secretary is 

charged with the administration and 

enforcement of the INA and all other 

immigration laws (except for the 

powers, functions, and duties of the 

President, the Attorney General, and 

certain consular, diplomatic, and 

Department of State officials). The 

Secretary is also authorized to delegate 

his or her authority to any officer or 

employee of the agency and to designate 

other officers of the Department to serve 

as Acting Secretary. See INA 103, 8 

U.S.C. 1103, and 6 U.S.C. 113(g)(2). The 

HSA further provides that every officer 

of the Department ‘‘shall perform the 

functions specified by law for the 

official’s office or prescribed by the 

Secretary.’’ 6 U.S.C. 113(f). Thus, the 

designation of the signature authority 

from Acting Secretary Wolf to Mr. 

Mizelle is validly within the Acting 

Secretary’s authority. 

8.3. Article I Immigration Courts 

Comment: At least one commenter, 

the former union representing 

immigration judges, expressed a belief 

that the immigration courts and the BIA 

should be moved from within DOJ in 

the Executive Branch into an 

independent article I court system.92

The commenter indicated that such a 

move would address ‘‘political 

influence’’ and ensure ‘‘neutral decision 

making.’’ 

Response: Immigration judges are 

required to adjudicate cases in an 

‘‘impartial manner,’’ 8 CFR 1003.10(b); 

they exercise ‘‘independent judgment 

and discretion,’’ id.; and they ‘‘should 

not be swayed by partisan interests or 

public clamor,’’ EOIR, Ethics and 

Professionalism Guide for Immigration 


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Judges, sec. VIII (Jan. 26, 2011), https:// 

www.justice.gov/sites/default/files/eoir/ 

legacy/2013/05/23/Ethicsand

ProfessionalismGuideforIJs.pdf. To the 

extent that a union which represented 

immigration judges suggests that the 

members of its former bargaining unit 

do not engage in ‘‘neutral decision 

making’’ or are currently swayed by 

partisan influence in derogation of their 

ethical obligations, the Departments 

respectfully disagree, and note that the 

issue is one to be resolved between the 

former union and the members of its 

former bargaining unit, rather than 

through a rulemaking. The Departments 

are also unaware of any complaints filed 

by the former union regarding any 

specific immigration judges who have 

failed to engage in neutral decision 

making. In short, the commenter’s 

premise is unfounded in either fact or 

law. 

Otherwise, the recommendation is 

both beyond the scope of this 

rulemaking and the Departments’ 

authority. Congress has the sole 

authority to create an article I court. E.g. 

26 U.S.C. 7441 (‘‘There is hereby 

established, under article I of the 

Constitution of the United States, a 

court of record to be known as the 

United States Tax Court.’’). Despite this 

authority, Congress has provided for a 

system of administrative hearings for 

immigration cases, see, e.g., INA 240, 8 

U.S.C. 1229a (laying out administrative 

procedures for removal proceedings), 

which the Departments believe should 

be maintained. Cf. Strengthening and 

Reforming America’s Immigration Court 

System: Hearing before the Subcomm. 

on Border Sec. & Immigration of the S. 

Comm. on the Judiciary, 115th Cong. 

(2018) (written response to Questions 

for the Record of James McHenry, 

Director, EOIR) (‘‘The financial costs 

and logistical hurdles to implementing 

an Article I immigration court system 

would be monumental and would likely 

delay pending cases even further.’’). 

9. Severability 

Comment: Some commenters 

disagreed with the Departments’ 

inclusion of severability provisions in 

the rule. See 8 CFR 208.25, 235.6(c), 

1003.42(i), 1208.25, 1212.13, 1235.6(c). 

For example, at least one commenter 

stated that the severability provisions 

conflict with the premise that all the 

provisions in the rule are related. 

Another commenter disagreed with the 

severability provisions, stating that the 

rule should instead be struck in its 

entirety. 

Response: The changes made by the 

rule function sensibly independent of 

the other provisions. As a result, the 

Departments included severability 

language for each affected part of title 8 

CFR. 8 CFR 208.25, 235.6(c), 1003.42(i), 

1208.25, 1212.13, 1235.6(c). In other 

words, the Departments included these 

severability provisions to clearly 

illustrate the Departments’ belief that 

the severance of any affected sections 

‘‘will not impair the function of the 

statute as a whole’’ and that the 

Departments would have enacted the 

remaining regulatory provisions even 

without any others. See K Mart Corp. v. 

Cartier, Inc., 486 U.S. 281, 294 (1988) 

(discussing whether an agency’s 

regulatory provision is severable). The 

Departments disagree that this 

severability analysis is impacted by the 

interrelatedness of either the provisions 

of this rule or the affected parts more 

generally. Indeed, it is reasonable for 

agencies, when practical, to make 

multiple related changes in a single 

rulemaking in order to best inform the 

public and facilitate notice and 

comment. 

III. Regulatory Requirements 

A. Administrative Procedure Act 

This final rule is being published with 

a 30-day effective date as required by 

the Administrative Procedure Act. 5 

U.S.C. 553(d). 

B. Regulatory Flexibility Act 

The Departments have reviewed this 

regulation in accordance with the 

Regulatory Flexibility Act, see 5 U.S.C. 

601 et seq., and, as explained more fully 

above, have determined that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities, see 5 U.S.C. 605(b). This 

regulation affects only individual aliens 

and the Federal government. 

Individuals do not constitute small 

entities under the Regulatory Flexibility 

Act. See 5 U.S.C. 601(6). 

C. Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

D. Congressional Review Act 

The Office of Information and 

Regulatory Affairs has determined that 

this final rule is not a major rule as 

defined by section 804 of the 

Congressional Review Act. This rule 

will not result in an annual effect on the 

economy of $100 million or more; a 

major increase in costs or prices; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. See 5 U.S.C. 804(2). 

E. Executive Orders 12866, 13563, and 

13771 

This final rule is considered by the 

Departments to be a ‘‘significant 

regulatory action’’ under section 3(f)(4) 

of Executive Order 12866 because it 

raises novel legal or policy issues. 

Accordingly, the regulation has been 

submitted to the Office of Management 

and Budget (‘‘OMB’’) for review. 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health, and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of using the 

best available methods to quantify costs 

and benefits; reducing costs; 

harmonizing rules; and promoting 

flexibility. 

The final rule would change or 

provide additional clarity for 

adjudicators across many issues 

commonly raised by asylum 

applications and would potentially 

streamline the overall adjudicatory 

process for asylum applications. 

Although the regulation will improve 

the clarity of asylum law and help 

streamline the credible fear review 

process, the regulation does not change 

the nature of the role of an immigration 

judge or an asylum officer during 

proceedings for consideration of 

credible fear claims or asylum 

applications. Notably, immigration 

judges will retain their existing 

authority to review de novo the 

determinations made by asylum officers 

in a credible fear proceeding, and will 

continue to control immigration court 

proceedings. In credible fear 

proceedings, asylum officers will 

continue to evaluate the merits of claims 

for asylum, withholding of removal, and 

CAT protection for possible referral to 

an immigration judge. Although this 

rule expands the bases on which an 

asylum officer may determine that a 

claim does not merit referral (and, as a 

consequence, make a negative fear 

determination), the alien will still be 

able to seek review of that negative fear 


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determination before the immigration 

judge. 

Immigration judges and asylum 

officers are already trained to consider 

all relevant legal issues in assessing a 

credible fear claim or asylum 

application, and the final rule does not 

implement any changes that would 

make adjudications more challenging 

than those that are already conducted. 

For example, immigration judges 

already consider issues of persecution, 

nexus, particular social group, 

frivolousness, firm resettlement, and 

discretion in assessing the merit of an 

asylum application, and the provision of 

clearer standards for considering those 

issues in this rule does not add any 

operational burden or increase the level 

of operational analysis required for 

adjudication. Accordingly, the 

Departments do not expect the changes 

to increase the adjudication time for 

immigration court proceedings 

involving asylum applications or for 

reviews of negative fear determinations. 

Depending on the manner in which 

DHS exercises its prosecutorial 

discretion for aliens potentially subject 

to expedited removal, the facts and 

circumstances of each individual alien’s 

situation, DHS’s interpretation or the 

relevant regulations, and application of 

those regulations by individual 

adjudicators, the changes may decrease 

the number of cases of aliens subject to 

expedited removal that result in a full 

hearing on an application for asylum. In 

all cases, however, an alien will retain 

the opportunity to request immigration 

judge review of DHS’s initial fear 

determination. 

The Departments are implementing 

changes that may affect any alien 

subject to expedited removal who makes 

a fear claim and any alien who applies 

for asylum, statutory withholding of 

removal, or protection under the CAT 

regulations. The Departments note that 

these changes are likely to result in 

fewer asylum grants annually due to 

clarifications regarding the significance 

of discretionary considerations and 

changes to the definition of ‘‘firm 

resettlement.’’ However, because asylum 

applications are inherently fact-specific, 

and because there may be multiple 

bases for denying an asylum 

application, neither DOJ nor DHS can 

quantify precisely the expected 

decrease. As of September 30, 2020, 

EOIR had 589,276 cases pending with 

an asylum application. EOIR, Workload 

and Adjudication Statistics: Total 

Asylum Applications (Oct. 13, 2020), 

https://www.justice.gov/eoir/page/file/ 

1106366/download. In FY 2019, at the 

immigration court level, EOIR granted 

18,816 asylum applications and denied 

45,285 asylum applications. See 85 FR 

at 36289. An additional 27,112 asylum 

applications were abandoned, 

withdrawn, or otherwise not 

adjudicated. Id. As of January 1, 2020, 

USCIS had 338,931 applications for 

asylum and for withholding of removal 

pending. Id. at 36289 & n.44. In FY 

2019, USCIS received 96,861 asylum 

applications, and approved 19,945 such 

applications. Id. at 36289 & n.45. 

The Departments expect that the 

aliens most likely to be impacted by this 

rule’s provisions are those who are 

already unlikely to receive a grant of 

asylum under existing law. Assuming 

DHS places those aliens into expedited 

removal proceedings, the Departments 

have concluded that it will be more 

likely that they would receive a more 

prompt adjudication of their claims for 

asylum or withholding of removal than 

they would under the existing 

regulations. Depending on the 

individual circumstances of each case, 

this rule would mean that such aliens 

would likely not remain in the United 

States—for years, potentially—pending 

resolution of their claims. 

An alien who is ineligible for asylum 

may still be eligible to apply for the 

protection of withholding of removal 

under section 241(b)(3) of the Act, 8 

U.S.C. 1231(b)(3), or withholding of 

removal under regulations issued 

pursuant to the legislation 

implementing U.S. obligations under 

Article 3 of the CAT. See INA 241(b)(3), 

8 U.S.C. 1231(b)(3); 8 CFR 208.16, 

208.17 through 208.18, 1208.16, and 

1208.17 through 1208.18. For those 

aliens barred from asylum under this 

rule who would otherwise be positively 

adjudicated for asylum, it is possible 

they would qualify for withholding 

(provided a bar to withholding did not 

apply separate and apart from this rule). 

To the extent there are any direct 

impacts of this rule, they would almost 

exclusively fall on that population. 

Further, the full extent of the impacts on 

this population is unclear and would 

depend on the specific circumstances 

and personal characteristics of each 

alien, and neither DHS nor DOJ collects 

such data at such a level of granularity. 

Overall, the Departments assess that 

operational efficiencies will likely result 

from these changes, which could, inter 

alia, reduce the number of meritless 

claims before the immigration courts, 

provide the Departments with the 

ability to more promptly grant relief or 

protection to qualifying aliens, and 

ensure that those who do not qualify for 

relief or protection are removed more 

efficiently than they are under current 

rules. 

F. Executive Order 12988: Criminal 

Justice Reform 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

G. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, 44 U.S.C 3501–3512, agencies 

are required to submit to OMB, for 

review and approval, any reporting 

requirements inherent in a rule. The 

changes made in this final rule required 

DHS to revise USCIS Form I–589, 

Application for Asylum and for 

Withholding of Removal, OMB Control 

Number 1615–0067. DOJ and DHS 

invited public comments on the impact 

to the proposed collection of 

information for 60 days. See 85 FR at 

36290. 

DOJ and DHS received multiple 

comments on the information collection 

impacts of the proposed rule. 

Commenters expressed concern that the 

proposed revisions significantly 

increase the time and cost burdens for 

aliens seeking protection from 

persecution and torture, as well as 

adding to the burden of immigration 

lawyers, asylum officers, advocacy 

organizations, and immigration judges. 

DHS and DOJ have summarized all of 

the comments related to information 

collection and have provided responses 

in a document titled ‘‘Form I–589 Public 

Comments and Response Matrix,’’ 

which is posted in the rulemaking 

docket EOIR–2020–0003 at https://

www.regulations.gov/. As a result of the 

public comments, DHS has increased 

the burden estimate for the Form I–589 

and has updated the supporting 

statement submitted to OMB 

accordingly. The supporting statement 

can be found at https:// 

www.reginfo.gov/. The updated abstract 

is as follows: 

USCIS Form I–589 

Overview of Information Collection 

(1) Type of Information Collection: 

Revision of a Currently Approved 

Collection. 

(2) Title of the Form/Collection: 

Application for Asylum and for 

Withholding of Removal. 


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93This estimate is higher than the estimate 

provided in the NPRM because USCIS reevaluated 

its projections and determined that the hourly 

burden per response was likely to be higher than 

USCIS had initially estimated, which also increased 

the total estimated public burden (in hours). 

94This estimate is higher than the estimate 

provided in the NPRM because USCIS reevaluated 

its projections in response to public comments 

suggesting that the monetary cost was likely to be 

higher than USCIS had initially estimated. 

(3) Agency form number, if any, and 

the applicable component of the DHS 

sponsoring the collection: I–589; USCIS. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Individuals or 

households. Form I–589 is necessary to 

determine whether an alien applying for 

asylum or withholding of removal in the 

United States is classified as a refugee 

and is eligible to remain in the United 

States. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: The estimated total number of 

respondents for the information 

collection I–589 is approximately 

114,000, and the estimated hourly 

burden per response is 18.5 93 hours. 

The estimated number of respondents 

providing biometrics is 110,000, and the 

estimated hourly burden per response is 

1.17 hours. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: The total estimated annual 

burden associated with this collection of 

information in hours is 2,237,700. 

(7) An estimate of the total public 

burden (in cost) associated with the 

collection: The estimated total annual 

cost burden associated with this 

collection of information is 

$70,406,400.94

H. Signature 

The Acting Secretary of Homeland 

Security, Chad F. Wolf, having reviewed 

and approved this document, has 

delegated the authority to electronically 

sign this document to Chad R. Mizelle, 

who is the Senior Official Performing 

the Duties of the General Counsel for 

DHS, for purposes of publication in the 

Federal Register. 

List of Subjects 

8 CFR Part 208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 235 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 1003 

Administrative practice and 

procedure, Aliens, Immigration, Legal 

services, Organization and functions 

(Government agencies). 

8 CFR Part 1208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 1235 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 1244 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

DEPARTMENT OF HOMELAND 

SECURITY 

Accordingly, for the reasons set forth 

in the preamble, 8 CFR parts 208 and 

235 are amended as follows: 

PART 208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL 

■ 1. The authority citation for part 208 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 

1252, 1282; Title VII of Public Law 110–229; 

8 CFR part 2. 

■ 2. Amend § 208.1 by adding 

paragraphs (c) through (g) to read as 

follows: 

§ 208.1 General. 

* * * * * 

(c) Particular social group. For 

purposes of adjudicating an application 

for asylum under section 208 of the Act 

or an application for withholding of 

removal under section 241(b)(3) of the 

Act, a particular social group is one that 

is based on an immutable or 

fundamental characteristic, is defined 

with particularity, and is recognized as 

socially distinct in the society at 

question. Such a particular social group 

cannot be defined exclusively by the 

alleged persecutory acts or harms and 

must also have existed independently of 

the alleged persecutory acts or harms 

that form the basis of the claim. The 

Secretary, in general, will not favorably 

adjudicate claims of aliens who claim a 

fear of persecution on account of 

membership in a particular social group 

consisting of or defined by the following 

circumstances: Past or present criminal 

activity or association (including gang 

membership); presence in a country 

with generalized violence or a high 

crime rate; being the subject of a 

recruitment effort by criminal, terrorist, 

or persecutory groups; the targeting of 

the applicant for criminal activity for 

financial gain based on perceptions of 

wealth or affluence; interpersonal 

disputes of which governmental 

authorities were unaware or 

uninvolved; private criminal acts of 

which governmental authorities were 

unaware or uninvolved; past or present 

terrorist activity or association; past or 

present persecutory activity or 

association; or status as an alien 

returning from the United States. This 

list is nonexhaustive, and the substance 

of the alleged particular social group, 

rather than the precise form of its 

delineation, shall be considered in 

determining whether the group falls 

within one of the categories on the list. 

No alien shall be found to be a refugee 

or have it decided that the alien’s life or 

freedom would be threatened based on 

membership in a particular social group 

in any case unless that person 

articulates on the record, or provides a 

basis on the record for determining, the 

definition and boundaries of the alleged 

particular social group. A failure to 

define, or provide a basis for defining, 

a formulation of a particular social 

group before an immigration judge shall 

waive any such claim for all purposes 

under the Act, including on appeal. Any 

waived claim on this basis shall not 

serve as the basis for any motion to 

reopen or reconsider for any reason, 

including a claim of ineffective 

assistance of counsel unless the alien 

complies with the procedural 

requirements for such a motion and 

demonstrates that counsel’s failure to 

define, or provide a basis for defining, 

a formulation of a particular social 

group constituted egregious conduct. 

(d) Political opinion. For purposes of 

adjudicating an application for asylum 

under section 208 of the Act or an 

application for withholding of removal 

under section 241(b)(3) of the Act, a 

political opinion is one expressed by or 

imputed to an applicant in which the 

applicant possesses an ideal or 

conviction in support of the furtherance 

of a discrete cause related to political 

control of a State or a unit thereof. The 

Secretary, in general, will not favorably 

adjudicate claims of aliens who claim a 

fear of persecution on account of a 

political opinion defined solely by 

generalized disapproval of, 

disagreement with, or opposition to 

criminal, terrorist, gang, guerilla, or 

other non-state organizations absent 

expressive behavior in furtherance of a 

cause against such organizations related 


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to efforts by the State to control such 

organizations or behavior that is 

antithetical to or otherwise opposes the 

ruling legal entity of the State or a legal 

sub-unit of the State. A person who has 

been forced to abort a pregnancy or to 

undergo involuntary sterilization, or 

who has been persecuted for failure or 

refusal to undergo such a procedure or 

for other resistance to a coercive 

population control program, shall be 

deemed to have been persecuted on 

account of political opinion, and a 

person who has a well-founded fear that 

he or she will be forced to undergo such 

a procedure or subject to persecution for 

such failure, refusal, or resistance shall 

be deemed to have a well-founded fear 

of persecution on account of political 

opinion. 

(e) Persecution. For purposes of 

screening or adjudicating an application 

for asylum under section 208 of the Act 

or an application for withholding of 

removal under section 241(b)(3) of the 

Act, persecution requires an intent to 

target a belief or characteristic, a severe 

level of harm, and the infliction of a 

severe level of harm by the government 

of a country or by persons or an 

organization that the government was 

unable or unwilling to control. For 

purposes of evaluating the severity of 

the level of harm, persecution is an 

extreme concept involving a severe level 

of harm that includes actions so severe 

that they constitute an exigent threat. 

Persecution does not encompass the 

generalized harm that arises out of civil, 

criminal, or military strife in a country, 

nor does it encompass all treatment that 

the United States regards as unfair, 

offensive, unjust, or even unlawful or 

unconstitutional. It does not include 

intermittent harassment, including brief 

detentions; threats with no actual effort 

to carry out the threats, except that 

particularized threats of severe harm of 

an immediate and menacing nature 

made by an identified entity may 

constitute persecution; or, non-severe 

economic harm or property damage, 

though this list is nonexhaustive. The 

existence of laws or government policies 

that are unenforced or infrequently 

enforced do not, by themselves, 

constitute persecution, unless there is 

credible evidence that those laws or 

policies have been or would be applied 

to an applicant personally. 

(f) Nexus. For purposes of 

adjudicating an application for asylum 

under section 208 of the Act or an 

application or withholding of removal 

under section 241(b)(3) of the Act, the 

Secretary, in general, will not favorably 

adjudicate the claims of aliens who 

claim persecution based on the 

following list of nonexhaustive 

circumstances: 

(1) Interpersonal animus or 

retribution; 

(2) Interpersonal animus in which 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 

has raised the claim at issue; 

(3) Generalized disapproval of, 

disagreement with, or opposition to 

criminal, terrorist, gang, guerilla, or 

other non-state organizations absent 

expressive behavior in furtherance of a 

discrete cause against such 

organizations related to control of a 

State or expressive behavior that is 

antithetical to the State or a legal unit 

of the State; 

(4) Resistance to recruitment or 

coercion by guerilla, criminal, gang, 

terrorist or other non-state 

organizations; 

(5) The targeting of the applicant for 

criminal activity for financial gain based 

on wealth or affluence or perceptions of 

wealth or affluence; 

(6) Criminal activity; 

(7) Perceived, past or present, gang 

affiliation; or, 

(8) Gender. 

(g) Evidence based on stereotypes. For 

purposes of adjudicating an application 

for asylum under section 208 of the Act 

or an application for withholding of 

removal under section 241(b)(3) of the 

Act, evidence offered in support of such 

an application which promotes cultural 

stereotypes about a country, its 

inhabitants, or an alleged persecutor, 

including stereotypes based on race, 

religion, nationality, or gender, shall not 

be admissible in adjudicating that 

application, provided that nothing in 

this paragraph shall be construed as 

prohibiting the submission of evidence 

that an alleged persecutor holds 

stereotypical views of the applicant. 

■ 3. Amend § 208.2 by adding paragraph 

(c)(1)(ix) to read as follows: 

§ 208.2 Jurisdiction. 

* * * * * 

(c) * * * 

(1) * * * 

(ix) An alien found to have a credible 

fear of persecution, reasonable 

possibility of persecution, or reasonable 

possibility of torture in accordance with 

§§ 208.30, 1003.42, or 1208.30. 

* * * * * 

■ 4. Amend § 208.5 by revising the first 

sentence of paragraph (a) to read as 

follows: 

§ 208.5 Special duties toward aliens in 

custody of DHS. 

(a) General. When an alien in the 

custody of DHS requests asylum or 

withholding of removal, or expresses a 

fear of persecution or harm upon return 

to his or her country of origin or to 

agents thereof, DHS shall make available 

the appropriate application forms and 

shall provide the applicant with the 

information required by section 

208(d)(4) of the Act, including in the 

case of an alien who is in custody with 

a positive credible fear or reasonable 

fear determination under 8 CFR 208.30 

or 208.31, and except in the case of an 

alien who is in custody pending a 

credible fear determination under 8 CFR 

208.30 or a reasonable fear 

determination pursuant to 8 CFR 

208.31. * * * 

* * * * * 

■ 5. Amend § 208.6 by revising 

paragraphs (a) and (b) and adding 

paragraphs (d) and (e) to read as follows: 

§ 208.6 Disclosure to third parties. 

(a) Information contained in or 

pertaining to any application for refugee 

admission, asylum, withholding of 

removal under section 241(b)(3) of the 

Act, or protection under regulations 

issued pursuant to the Convention 

Against Torture’s implementing 

legislation, records pertaining to any 

credible fear determination conducted 

pursuant to § 208.30, and records 

pertaining to any reasonable fear 

determination conducted pursuant to 

§ 208.31, shall not be disclosed without 

the written consent of the applicant, 

except as permitted by this section or at 

the discretion of the Secretary. 

(b) The confidentiality of other 

records kept by DHS and the Executive 

Office for Immigration Review that 

indicate that a specific alien has applied 

for refugee admission, asylum, 

withholding of removal under section 

241(b)(3) of the Act, or protection under 

regulations issued pursuant to the 

Convention Against Torture’s 

implementing legislation, or has 

received a credible fear or reasonable 

fear interview, or received a credible 

fear or reasonable fear review shall also 

be protected from disclosure, except as 

permitted in this section. DHS will 

coordinate with the Department of State 

to ensure that the confidentiality of 

those records is maintained if they are 

transmitted to Department of State 

offices in other countries. 

* * * * * 

(d)(1) Any information contained in 

an application for refugee admission, 

asylum, withholding of removal under 

section 241(b)(3) of the Act, or 


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protection under regulations issued 

pursuant to the Convention Against 

Torture’s implementing legislation, any 

relevant and applicable information 

supporting that application, any 

information regarding an alien who has 

filed such an application, and any 

relevant and applicable information 

regarding an alien who has been the 

subject of a reasonable fear or credible 

fear determination may be disclosed: 

(i) As part of an investigation or 

adjudication of the merits of that 

application or of any other application 

under the immigration laws, 

(ii) As part of any State or Federal 

criminal investigation, proceeding, or 

prosecution; 

(iii) Pursuant to any State or Federal 

mandatory reporting requirement; 

(iv) To deter, prevent, or ameliorate 

the effects of child abuse; 

(v) As part of any proceeding arising 

under the immigration laws, including 

proceedings arising under the Act; and 

(vi) As part of the Government’s 

defense of any legal action relating to 

the alien’s immigration or custody 

status including petitions for review 

filed in accordance with 8 U.S.C. 1252. 

(2) If information may be disclosed 

under paragraph (d)(1) of this section, 

the disclosure provisions in paragraphs 

(a), (b), and (c) of this section shall not 

apply. 

(e) Nothing in this section shall be 

construed as prohibiting the disclosure 

of information contained in an 

application for refugee admission, 

asylum, withholding of removal under 

section 241(b)(3)(B) of the Act, or 

protection under regulations issued 

pursuant to the Convention Against 

Torture’s implementing legislation, 

information supporting that application, 

information regarding an alien who has 

filed such an application, or information 

regarding an alien who has been the 

subject of a reasonable fear or credible 

fear determination: 

(1) Among employees and officers of 

the Department of Justice, the 

Department of Homeland Security, the 

Department of State, the Department of 

Health and Human Services, the 

Department of Labor, or a U.S. national 

security agency having a need to 

examine the information for an official 

purpose; or 

(2) Where a United States Government 

employee or contractor has a good faith 

and reasonable belief that disclosure is 

necessary to prevent the commission of 

a crime, the furtherance of an ongoing 

crime, or to ameliorate the effects of a 

crime. 

■ 6. Amend § 208.13 by revising 

paragraphs (b)(3) introductory text and 

(b)(3)(ii) and adding paragraphs 

(b)(3)(iii) and (iv) and (d) to read as 

follows: 

§ 208.13 Establishing asylum eligibility. 

* * * * * 

(b) * * * 

(3) Reasonableness of internal 

relocation. For purposes of 

determinations under paragraphs 

(b)(1)(i) and (ii) and (b)(2) of this 

section, adjudicators should consider 

the totality of the relevant 

circumstances regarding an applicant’s 

prospects for relocation, including the 

size of the country of nationality or last 

habitual residence, the geographic locus 

of the alleged persecution, the size, 

reach, or numerosity of the alleged 

persecutor, and the applicant’s 

demonstrated ability to relocate to the 

United States in order to apply for 

asylum. 

* * * * * 

(ii) In cases in which the persecutor 

is a government or is governmentsponsored, it shall be presumed that 

internal relocation would not be 

reasonable, unless DHS establishes by a 

preponderance of the evidence that, 

under all the circumstances, it would be 

reasonable for the applicant to relocate. 

(iii) Regardless of whether an 

applicant has established persecution in 

the past, in cases in which the 

persecutor is not the government or a 

government-sponsored actor, or 

otherwise is a private actor, there shall 

be a presumption that internal 

relocation would be reasonable unless 

the applicant establishes, by a 

preponderance of the evidence, that it 

would be unreasonable to relocate. 

(iv) For purposes of determinations 

under paragraphs (b)(3)(ii) and (iii) of 

this section, persecutors who are private 

actors—including persecutors who are 

gang members, officials acting outside 

their official capacity, family members 

who are not themselves government 

officials, or neighbors who are not 

themselves government officials—shall 

not be considered to be persecutors who 

are the government or governmentsponsored absent evidence that the 

government sponsored the persecution. 

* * * * * 

(d) Discretion. Factors that fall short 

of grounds of mandatory denial of an 

asylum application may constitute 

discretionary considerations. 

(1) The following are significant 

adverse discretionary factors that a 

decision-maker shall consider, if 

applicable, in determining whether an 

alien merits a grant of asylum in the 

exercise of discretion: 

(i) An alien’s unlawful entry or 

unlawful attempted entry into the 

United States unless such entry or 

attempted entry was made in immediate 

flight from persecution in a contiguous 

country or unless such entry or 

attempted entry was made by an alien 

under the age of 18 at the time the entry 

or attempted entry was made; 

(ii) The failure of an alien to apply for 

protection from persecution or torture in 

at least one country outside the alien’s 

country of citizenship, nationality, or 

last lawful habitual residence through 

which the alien transited before entering 

the United States unless: 

(A) The alien received a final 

judgment denying the alien protection 

in such country; 

(B) The alien demonstrates that he or 

she satisfies the definition of ‘‘victim of 

a severe form of trafficking in persons’’ 

provided in 8 CFR 214.11; or 

(C) Such country or all such countries 

were, at the time of the transit, not 

parties to the 1951 Convention relating 

to the Status of Refugees, the 1967 

Protocol relating to the Status of 

Refugees, or the Convention Against 

Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment; 

and 

(iii) An alien’s use of fraudulent 

documents to enter the United States, 

unless the alien arrived in the United 

States by air, sea, or land directly from 

the applicant’s home country without 

transiting through any other country. 

(2)(i) The Secretary, except as 

provided in paragraph (d)(2)(ii) of this 

section, will not favorably exercise 

discretion under section 208 of the Act 

for an alien who: 

(A) Immediately prior to his arrival in 

the United States or en route to the 

United States from the alien’s country of 

citizenship, nationality, or last lawful 

habitual residence, spent more than 14 

days in any one country unless: 

(1) The alien demonstrates that he or 

she applied for protection from 

persecution or torture in such country 

and the alien received a final judgment 

denying the alien protection in such 

country; 

(2) The alien demonstrates that he or 

she satisfies the definition of ‘‘victim of 

a severe form of trafficking in persons’’ 

provided in 8 CFR 214.11; or 

(3) Such country was, at the time of 

the transit, not a party to the 1951 

Convention relating to the Status of 

Refugees, the 1967 Protocol relating to 

the Status of Refugees, or the 

Convention against Torture and Other 

Cruel, Inhuman or Degrading Treatment 

or Punishment; 

(B) Transits through more than one 

country between his country of 

citizenship, nationality, or last habitual 

residence and the United States unless: 


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(1) The alien demonstrates that he or 

she applied for protection from 

persecution or torture in at least one 

such country and received a final 

judgment denying the alien protection 

in that country; 

(2) The alien demonstrates that he or 

she satisfies the definition of ‘‘victim of 

a severe form of trafficking in persons’’ 

provided in 8 CFR 214.11; or 

(3) All such countries were, at the 

time of the transit, not parties to the 

1951 Convention relating to the Status 

of Refugees, the 1967 Protocol relating 

to the Status of Refugees, or the 

Convention against Torture and Other 

Cruel, Inhuman or Degrading Treatment 

or Punishment; 

(C) Would otherwise be subject to 

§ 208.13(c) but for the reversal, vacatur, 

expungement, or modification of a 

conviction or sentence, unless the alien 

was found not guilty; 

(D) Accrued more than one year of 

unlawful presence in the United States, 

as defined in sections 212(a)(9)(B)(ii) 

and (iii) of the Act, prior to filing an 

application for asylum; 

(E) At the time the asylum application 

is filed with DHS has: 

(1) Failed to timely file (or timely file 

a request for an extension of time to file) 

any required Federal, State, or local 

income tax returns; 

(2) Failed to satisfy any outstanding 

Federal, State, or local tax obligations; 

or 

(3) Has income that would result in 

tax liability under section 1 of the 

Internal Revenue Code of 1986 and that 

was not reported to the Internal 

Revenue Service; 

(F) Has had two or more prior asylum 

applications denied for any reason; 

(G) Has withdrawn a prior asylum 

application with prejudice or been 

found to have abandoned a prior asylum 

application; 

(H) Failed to attend an interview 

regarding his asylum application with 

DHS, unless the alien shows by a 

preponderance of the evidence that: 

(1) Exceptional circumstances 

prevented the alien from attending the 

interview; or 

(2) The interview notice was not 

mailed to the last address provided by 

the alien or his or her representative and 

neither the alien nor the alien’s 

representative received notice of the 

interview; or 

(I) Was subject to a final order of 

removal, deportation, or exclusion and 

did not file a motion to reopen to seek 

asylum based on changed country 

conditions within one year of those 

changes in country conditions. 

(ii) Where one or more of the adverse 

discretionary factors set forth in 

paragraph (d)(2)(i) of this section are 

present, the Secretary, in extraordinary 

circumstances, such as those involving 

national security or foreign policy 

considerations, or cases in which an 

alien, by clear and convincing evidence, 

demonstrates that the denial or referral 

(which may result in the denial by an 

immigration judge) of the application 

for asylum would result in exceptional 

and extremely unusual hardship to the 

alien, may favorably exercise discretion 

under section 208 of the Act, 

notwithstanding the applicability of 

paragraph (d)(2)(i). Depending on the 

gravity of the circumstances underlying 

the application of paragraph (d)(2)(i), a 

showing of extraordinary circumstances 

might still be insufficient to warrant a 

favorable exercise of discretion under 

section 208 of the Act. 

■ 7. Revise § 208.15 to read as follows: 

§ 208.15 Definition of ‘‘firm resettlement.’’ 

(a) An alien is considered to be firmly 

resettled if, after the events giving rise 

to the alien’s asylum claim: 

(1) The alien resided in a country 

through which the alien transited prior 

to arriving in or entering the United 

States and— 

(i) Received or was eligible for any 

permanent legal immigration status in 

that country; 

(ii) Resided in such a country with 

any non-permanent but indefinitely 

renewable legal immigration status 

(including asylee, refugee, or similar 

status but excluding status such as of a 

tourist); or 

(iii) Resided in such a country and 

could have applied for and obtained any 

non-permanent but indefinitely 

renewable legal immigration status in 

that country; 

(2) The alien physically resided 

voluntarily, and without continuing to 

suffer persecution or torture, in any one 

country for one year or more after 

departing his country of nationality or 

last habitual residence and prior to 

arrival in or entry into the United States, 

provided that time spent in Mexico by 

an alien who is not a native or citizen 

of Mexico solely as a direct result of 

being returned to Mexico pursuant to 

section 235(b)(2)(C) of the Act or of 

being subject to metering would not be 

counted for purposes of this paragraph; 

or 

(3)(i) The alien is a citizen of a 

country other than the one where the 

alien alleges a fear of persecution and 

the alien was present in that country 

after departing his country of nationality 

or last habitual residence and prior to 

arrival in or entry into the United States; 

or 

(ii) The alien was a citizen of a 

country other than the one where the 

alien alleges a fear of persecution, the 

alien was present in that country after 

departing his country of nationality or 

last habitual residence and prior to 

arrival in or entry into the United States, 

and the alien renounced that citizenship 

after arriving in the United States. 

(b) The provisions of 8 CFR 1240.8(d) 

shall apply when the evidence of record 

indicates that the firm resettlement bar 

may apply. In such cases, the alien shall 

bear the burden of proving the bar does 

not apply. Either DHS or the 

immigration judge may raise the issue of 

the application of the firm resettlement 

bar based on the evidence of record. The 

firm resettlement of an alien’s parent(s) 

shall be imputed to the alien if the 

resettlement occurred before the alien 

turned 18 and the alien resided with the 

alien’s parents at the time of the firm 

resettlement unless the alien establishes 

that he or she could not have derived 

any permanent legal immigration status 

or any non-permanent but indefinitely 

renewable legal immigration status 

(including asylee, refugee, or similar 

status but excluding status such as of a 

tourist) from the alien’s parent. 

■ 8. Amend § 208.16 by revising 

paragraphs (b)(3) introductory text and 

(b)(3)(ii) and adding paragraphs 

(b)(3)(iii) and (iv) to read as follows: 

§ 208.16 Withholding of removal under 

section 241(b)(3)(B) of the Act and 

withholding of removal under the 

Convention Against Torture. 

* * * * * 

(b)(3) Reasonableness of internal 

relocation. For purposes of 

determinations under paragraphs (b)(1) 

and (2) of this section, adjudicators 

should consider the totality of the 

relevant circumstances regarding an 

applicant’s prospects for relocation, 

including the size of the country of 

nationality or last habitual residence, 

the geographic locus of the alleged 

persecution, the size, reach, or 

numerosity of the alleged persecutor, 

and the applicant’s demonstrated ability 

to relocate to the United States in order 

to apply for withholding of removal. 

* * * * * 

(ii) In cases in which the persecutor 

is a government or is governmentsponsored, it shall be presumed that 

internal relocation would not be 

reasonable, unless DHS establishes by a 

preponderance of the evidence that, 

under the totality of the circumstances, 

it would be reasonable for the applicant 

to relocate. 

(iii) Regardless of whether an 

applicant has established persecution in 

the past, in cases in which the 


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persecutor is not the government or a 

government-sponsored actor, or 

otherwise is a private actor, there shall 

be a presumption that internal 

relocation would be reasonable unless 

the applicant establishes, by a 

preponderance of the evidence, that it 

would be unreasonable to relocate. 

(iv) For purposes of determinations 

under paragraphs (b)(3)(ii) and (iii) of 

this section, persecutors who are private 

actors, including but not limited to 

persecutors who are gang members, 

public officials who are not acting under 

color of law, or family members who are 

not themselves government officials or 

neighbors who are not themselves 

government officials, shall not be 

considered to be persecutors who are 

the government or governmentsponsored absent evidence that the 

government sponsored the persecution. 

* * * * * 

■ 9. Amend § 208.18 by revising 

paragraphs (a)(1) and (7) to read as 

follows: 

§ 208.18 Implementation of the Convention 

Against Torture. 

(a) * * * 

(1) Torture is defined as any act by 

which severe pain or suffering, whether 

physical or mental, is intentionally 

inflicted on a person for such purposes 

as obtaining from him or her or a third 

person information or a confession, 

punishing him or her for an act he or 

she or a third person has committed or 

is suspected of having committed, or 

intimidating or coercing him or her or 

a third person, or for any reason based 

on discrimination of any kind, when 

such pain or suffering is inflicted by or 

at the instigation of or with the consent 

or acquiescence of a public official 

acting in an official capacity or other 

person acting in an official capacity. 

Pain or suffering inflicted by a public 

official who is not acting under color of 

law shall not constitute pain or suffering 

inflicted by or at the instigation of or 

with the consent or acquiescence of a 

public official acting in an official 

capacity or other person acting in an 

official capacity, although a different 

public official acting in an official 

capacity or other person acting in an 

official capacity could instigate, consent 

to, or acquiesce in the pain or suffering 

inflicted by the public official who is 

not acting under color of law. 

* * * * * 

(7) Acquiescence of a public official 

requires that the public official, prior to 

the activity constituting torture, have 

awareness of such activity and 

thereafter breach his or her legal 

responsibility to intervene to prevent 

such activity. Such awareness requires a 

finding of either actual knowledge or 

willful blindness. Willful blindness 

means that the public official acting in 

an official capacity or other person 

acting in an official capacity was aware 

of a high probability of activity 

constituting torture and deliberately 

avoided learning the truth; it is not 

enough that such public official acting 

in an official capacity or other person 

acting in an official capacity was 

mistaken, recklessly disregarded the 

truth, or negligently failed to inquire. In 

order for a public official to breach his 

or her legal responsibility to intervene 

to prevent activity constituting torture, 

the official must have been charged with 

preventing the activity as part of his or 

her duties and have failed to intervene. 

No person will be deemed to have 

breached a legal responsibility to 

intervene if such person is unable to 

intervene, or if the person intervenes 

but is unable to prevent the activity that 

constitutes torture. 

* * * * * 

■ 10. Revise § 208.20 to read as follows: 

§ 208.20 Determining if an asylum 

application is frivolous. 

(a) For applications filed on or after 

April 1, 1997, and before January 11, 

2021, an applicant is subject to the 

provisions of section 208(d)(6) of the 

Act only if the alien received the notice 

required by section 208(d)(4)(A) of the 

Act and a final order by an immigration 

judge or the Board of Immigration 

Appeals specifically finds that the alien 

knowingly filed a frivolous asylum 

application. An application is frivolous 

if: 

(1) Any of the material elements in 

the asylum application is deliberately 

fabricated, and the immigration judge or 

the Board is satisfied that the applicant, 

during the course of the proceedings, 

has had sufficient opportunity to 

account for any discrepancies or 

implausible aspects of the claim. 

(2) Paragraphs (b) through (f) of this 

section shall only apply to applications 

filed on or after January 11, 2021. 

(b) For applications filed on or after 

January 11, 2021, an asylum officer may 

determine that the applicant knowingly 

filed a frivolous asylum application and 

may refer the applicant to an 

immigration judge on that basis, so long 

as the applicant has received the notice 

required by section 208(d)(4)(A) of the 

Act. For any application referred to an 

immigration judge, an asylum officer’s 

determination that an application is 

frivolous will not render an applicant 

permanently ineligible for immigration 

benefits unless an immigration judge or 

the Board makes a finding of 

frivolousness as described in paragraph 

1208.20(c). 

(c) For applications filed on or after 

January 11, 2021, an asylum application 

is frivolous if it: 

(1) Contains a fabricated material 

element; 

(2) Is premised upon false or 

fabricated evidence unless the 

application would have been granted 

without the false or fabricated evidence; 

(3) Is filed without regard to the 

merits of the claim; or 

(4) Is clearly foreclosed by applicable 

law. 

(d) If the alien has been provided the 

warning required by section 

208(d)(4)(A) of the Act, he or she need 

not be given any additional or further 

opportunity to account for any issues 

with his or her claim prior to the entry 

of a frivolousness finding. 

(e) An asylum application may be 

found frivolous even if it was untimely 

filed. 

(f) A withdrawn asylum application 

may also be found frivolous unless: 

(1) The alien wholly disclaims the 

application and withdraws it with 

prejudice; 

(2) The alien is eligible for and agrees 

to accept voluntary departure for a 

period of no more than 30 days 

pursuant to section 240B(a) of the Act; 

(3) The alien withdraws any and all 

other applications for relief or 

protection with prejudice; and 

(4) The alien waives his right to 

appeal and any rights to file, for any 

reason, a motion to reopen or 

reconsider. 

(g) For purposes of this section, a 

finding that an alien knowingly filed a 

frivolous asylum application shall not 

preclude the alien from seeking 

withholding of removal under section 

241(b)(3) of the Act or protection under 

the regulations issued pursuant to the 

Convention Against Torture’s 

implementing legislation. 

■ 11. Add § 208.25 to read as follows: 

§ 208.25 Severability. 

The provisions of part 208 are 

separate and severable from one 

another. In the event that any provision 

in part 208 is stayed, enjoined, not 

implemented, or otherwise held invalid, 

the remaining provisions shall 

nevertheless be implemented as an 

independent rule and continue in effect. 

■ 12. Amend § 208.30 by: 

■ a. Revising the section heading; and 

■ b. Revising paragraphs (a), (b), (c), (d) 

introductory text, (d)(1) and (2), (d)(5) 

and (6), (e) introductory text, (e)(1) 

through (5), (e)(6) introductory text, 

(e)(6)(ii), (e)(6)(iii) introductory text, 


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(e)(6)(iv), the first sentence of paragraph 

(e)(7) introductory text, and paragraphs 

(e)(7)(ii), (f), and (g). 

The revisions read as follows: 

§ 208.30 Credible fear of persecution, 

reasonable possibility of persecution, and 

reasonable possibility of torture 

determinations involving stowaways and 

applicants for admission who are found 

inadmissible pursuant to section 

212(a)(6)(C) or 212(a)(7) of the Act, whose 

entry is limited or suspended under section 

212(f) or 215(a)(1) of the Act, or who failed 

to apply for protection from persecution in 

a third country where potential relief is 

available while en route to the United 

States. 

(a) Jurisdiction. The provisions of this 

subpart B apply to aliens subject to 

sections 235(a)(2) and 235(b)(1) of the 

Act. Pursuant to section 235(b)(1)(B) of 

the Act, DHS has exclusive jurisdiction 

to make the determinations described in 

this subpart B. Except as otherwise 

provided in this subpart B, paragraphs 

(b) through (g) of this section are the 

exclusive procedures applicable to 

stowaways and applicants for admission 

who are found inadmissible pursuant to 

section 212(a)(6)(C) or 212(a)(7) of the 

Act and who receive fear interviews, 

determinations, and reviews under 

section 235(b)(1)(B) of the Act. Prior to 

January 1, 2030, an alien physically 

present in or arriving in the 

Commonwealth of the Northern Mariana 

Islands is ineligible to apply for asylum 

and may only establish eligibility for 

withholding of removal pursuant to 

section 241(b)(3) of the Act or 

withholding or deferral of removal 

under the regulations issued pursuant to 

the Convention Against Torture’s 

implementing legislation. 

(b) Process and Authority. If an alien 

subject to section 235(a)(2) or 235(b)(1) 

of the Act indicates an intention to 

apply for asylum, or expresses a fear of 

persecution or torture, or a fear of return 

to his or her country, the inspecting 

officer shall not proceed further with 

removal of the alien until the alien has 

been referred for an interview by an 

asylum officer in accordance with this 

section. An asylum officer shall then 

screen the alien for a credible fear of 

persecution, and as necessary, a 

reasonable possibility of persecution 

and reasonable possibility of torture. An 

asylum officer, as defined in section 

235(b)(1)(E) of the Act, has the 

authorities described in 8 CFR 208.9(c) 

and must conduct an evaluation and 

make a determination consistent with 

this section. 

(c) Treatment of dependents. A 

spouse or child of an alien may be 

included in that alien’s fear evaluation 

and determination, if such spouse or 

child: 

(1) Arrived in the United States 

concurrently with the principal alien; 

and 

(2) Desires to be included in the 

principal alien’s determination. 

However, any alien may have his or her 

evaluation and determination made 

separately, if he or she expresses such 

a desire. 

(d) Interview. The asylum officer will 

conduct the interview in a 

nonadversarial manner, separate and 

apart from the general public. The 

purpose of the interview shall be to 

elicit all relevant and useful information 

bearing on whether the alien can 

establish a credible fear of persecution, 

reasonable possibility of persecution, or 

reasonable possibility of torture. The 

asylum officer shall conduct the 

interview as follows: 

(1) If the officer conducting the 

interview determines that the alien is 

unable to participate effectively in the 

interview because of illness, fatigue, or 

other impediments, the officer may 

reschedule the interview. 

(2) At the time of the interview, the 

asylum officer shall verify that the alien 

has received in writing the relevant 

information regarding the fear 

determination process. The officer shall 

also determine that the alien has an 

understanding of the fear determination 

process. 

* * * * * 

(5) If the alien is unable to proceed 

effectively in English, and if the asylum 

officer is unable to proceed competently 

in a language the alien speaks and 

understands, the asylum officer shall 

arrange for the assistance of an 

interpreter in conducting the interview. 

The interpreter must be at least 18 years 

of age and may not be the alien’s 

attorney or representative of record, a 

witness testifying on the alien’s behalf, 

a representative or employee of the 

alien’s country of nationality, or, if the 

alien is stateless, the alien’s country of 

last habitual residence. 

(6) The asylum officer shall create a 

summary of the material facts as stated 

by the alien. At the conclusion of the 

interview, the officer shall review the 

summary with the alien and provide the 

alien with an opportunity to correct any 

errors therein. 

(e) Procedures for determining 

credible fear of persecution, reasonable 

possibility of persecution, and 

reasonable possibility of torture. 

(1) An alien establishes a credible fear 

of persecution if there is a significant 

possibility the alien can establish 

eligibility for asylum under section 208 

of the Act. ‘‘Significant possibility’’ 

means a substantial and realistic 

possibility of succeeding. When making 

such a determination, the asylum officer 

shall take into account: 

(i) The credibility of the statements 

made by the alien in support of the 

alien’s claim; 

(ii) Such other facts as are known to 

the officer, including whether the alien 

could avoid any future harm by 

relocating to another part of his or her 

country, if under all the circumstances 

it would be reasonable to expect the 

alien to do so; and 

(iii) The applicability of any bars to 

being able to apply for asylum or to 

eligibility for asylum set forth at section 

208(a)(2)(B)–(C) and (b)(2) of the Act, 

including any bars established by 

regulation under section 208(b)(2)(C) of 

the Act. 

(2) An alien establishes a reasonable 

possibility of persecution if there is a 

reasonable possibility that the alien 

would be persecuted on account of his 

or her race, religion, nationality, 

membership in a particular social group, 

or political opinion in the country of 

removal. When making such 

determination, the officer will take into 

account: 

(i) The credibility of the statements 

made by the alien in support of the 

alien’s claim; 

(ii) Such other facts as are known to 

the officer, including whether the alien 

could avoid a future threat to his or her 

life or freedom by relocating to another 

part of the proposed country of removal 

and, under all circumstances, it would 

be reasonable to expect the applicant to 

do so; and 

(iii) The applicability of any bars at 

section 241(b)(3)(B) of the Act. 

(3) An alien establishes a reasonable 

possibility of torture if there is a 

reasonable possibility that the alien 

would be tortured in the country of 

removal, consistent with the criteria in 

8 CFR 208.16(c), 8 CFR 208.17, and 8 

CFR 208.18. The alien must demonstrate 

a reasonable possibility that he or she 

will suffer severe pain or suffering in 

the country of removal, and that the 

feared harm would comport with the 

other requirements of 8 CFR 208.18(a)(1) 

through (8). When making such a 

determination, the asylum officer shall 

take into account: 

(i) The credibility of the statements 

made by alien in support of the alien’s 

claim, and 

(ii) Such other facts as are known to 

the officer, including whether the alien 

could relocate to a part of the country 

of removal where he or she is not likely 

to be tortured. 


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(4) In all cases, the asylum officer will 

create a written record of his or her 

determination, including a summary of 

the material facts as stated by the alien, 

any additional facts relied on by the 

officer, and the officer’s determination 

of whether, in light of such facts, the 

alien has established a credible fear of 

persecution, reasonable possibility of 

persecution, or reasonable possibility of 

torture. In determining whether the 

alien has a credible fear of persecution, 

as defined in section 235(b)(1)(B)(v) of 

the Act, or a reasonable possibility of 

persecution or torture, the asylum 

officer shall consider whether the 

alien’s case presents novel or unique 

issues that merit consideration in a full 

hearing before an immigration judge. 

(5)(i)(A) Except as provided in 

paragraph (e)(5)(ii) or (iii) or paragraph 

(e)(6) or (7) of this section, if an alien 

would be able to establish a credible 

fear of persecution but for the fact that 

the alien is subject to one or more of the 

mandatory bars to applying for asylum 

or being eligible for asylum contained in 

section 208(a)(2)(B)–(D) and (b)(2) of the 

Act, including any bars established by 

regulation under section 208(b)(2)(C) of 

the Act, then the asylum officer will 

enter a negative credible fear of 

persecution determination with respect 

to the alien’s eligibility for asylum. 

(B) If an alien described in paragraph 

(e)(5)(i)(A) of this section is able to 

establish either a reasonable possibility 

of persecution (including by 

establishing that he or she is not subject 

to one or more of the mandatory bars to 

eligibility for withholding of removal 

contained in section 241(b)(3)(B) of the 

Act) or a reasonable possibility of 

torture, then the asylum officer will 

enter a positive reasonable possibility of 

persecution or torture determination, as 

applicable. The Department of 

Homeland Security shall place the alien 

in asylum-and-withholding-only 

proceedings under 8 CFR 208.2(c)(1) for 

full consideration of the alien’s claim 

for withholding of removal under 

section 241(b)(3) of the Act or 

withholding or deferral of removal 

under the regulations issued pursuant to 

the implementing legislation for the 

Convention Against Torture. 

(C) If an alien described in paragraph 

(e)(5)(i)(A) of this section fails to 

establish either a reasonable possibility 

of persecution (including by failing to 

establish that he or she is not subject to 

one or more of the mandatory bars to 

eligibility for withholding of removal 

contained in section 241(b)(3)(B) of the 

Act) or a reasonable possibility of 

torture, the asylum officer will provide 

the alien with a written notice of 

decision, which will be subject to 

immigration judge review consistent 

with paragraph (g) of this section, 

except that the immigration judge will 

review the fear findings under the 

reasonable possibility standard instead 

of the credible fear of persecution 

standard described in paragraph (g) of 

this section and in 8 CFR 1208.30(g). 

(ii) If the alien is found to be an alien 

described in 8 CFR 208.13(c)(3), then 

the asylum officer shall enter a negative 

credible fear determination with respect 

to the alien’s application for asylum. 

The Department shall nonetheless place 

the alien in asylum-and-withholdingonly proceedings under 8 CFR 

208.2(c)(1) for full consideration of the 

alien’s claim for withholding of removal 

under section 241(b)(3) of the Act, or for 

withholding or deferral of removal 

under the regulations issued pursuant to 

the implementing legislation for the 

Convention Against Torture, if the alien 

establishes, respectively, a reasonable 

possibility of persecution or torture. 

However, if an alien fails to establish, 

during the interview with the asylum 

officer, a reasonable possibility of either 

persecution or torture, the asylum 

officer will provide the alien with a 

written notice of decision, which will be 

subject to immigration judge review 

consistent with paragraph (g) of this 

section, except that the immigration 

judge will review the fear of persecution 

or torture findings under the reasonable 

possibility standard instead of the 

credible fear standard described in 

paragraph (g) of this section and in 8 

CFR 1208.30(g). 

(iii) If the alien is found to be an alien 

described in 8 CFR 208.13(c)(4), then 

the asylum officer shall enter a negative 

credible fear determination with respect 

to the alien’s application for asylum. 

The Department shall nonetheless place 

the alien in asylum-and-withholdingonly proceedings under 8 CFR 

208.2(c)(1) for full consideration of the 

alien’s claim for withholding of removal 

under section 241(b)(3) of the Act or 

withholding of deferral of removal 

under the regulations issued pursuant to 

the implementing legislation for the 

Convention Against Torture if the alien 

establishes, respectively, a reasonable 

possibility of persecution or torture. 

However, if an alien fails to establish, 

during the interview with the asylum 

officer, a reasonable possibility of either 

persecution or torture, the asylum 

officer will provide the alien with a 

written notice of decision, which will be 

subject to immigration judge review 

consistent with paragraph (g) of this 

section, except that the immigration 

judge will review the fear of persecution 

or torture findings under the reasonable 

possibility standard instead of the 

credible fear standard described in 

paragraph (g) of this section and in 8 

CFR 1208.30(g). 

(6) Prior to any determination 

concerning whether an alien arriving in 

the United States at a U.S.-Canada land 

border port-of-entry or in transit through 

the U.S. during removal by Canada has 

a credible fear of persecution, 

reasonable possibility of persecution, or 

reasonable possibility of torture, the 

asylum officer shall conduct a threshold 

screening interview to determine 

whether such an alien is ineligible to 

apply for asylum pursuant to section 

208(a)(2)(A) of the Act and subject to 

removal to Canada by operation of the 

Agreement Between the Government of 

the United States and the Government 

of Canada For Cooperation in the 

Examination of Refugee Status Claims 

from Nationals of Third Countries 

(‘‘Agreement’’). In conducting this 

threshold screening interview, the 

asylum officer shall apply all relevant 

interview procedures outlined in 

paragraph (d) of this section, provided, 

however, that paragraph (d)(2) of this 

section shall not apply to aliens 

described in this paragraph (e)(6). The 

asylum officer shall advise the alien of 

the Agreement’s exceptions and 

question the alien as to applicability of 

any of these exceptions to the alien’s 

case. 

* * * * * 

(ii) If the alien establishes by a 

preponderance of the evidence that he 

or she qualifies for an exception under 

the terms of the Agreement, the asylum 

officer shall make a written notation of 

the basis of the exception, and then 

proceed immediately to a determination 

concerning whether the alien has a 

credible fear of persecution, reasonable 

possibility of persecution, or reasonable 

possibility of torture under paragraph 

(d) of this section. 

(iii) An alien qualifies for an 

exception to the Agreement if the alien 

is not being removed from Canada in 

transit through the United States and: 

* * * * * 

(iv) As used in paragraphs 

(e)(6)(iii)(B), (C), and (D) of this section 

only, ‘‘legal guardian’’ means a person 

currently vested with legal custody of 

such an alien or vested with legal 

authority to act on the alien’s behalf, 

provided that such an alien is both 

unmarried and less than 18 years of age, 

and provided further that any dispute 

with respect to whether an individual is 

a legal guardian will be resolved on the 

basis of U.S. law. 

(7) When an immigration officer has 

made an initial determination that an 

alien, other than an alien described in 


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paragraph (e)(6) of this section and 

regardless of whether the alien is 

arriving at a port of entry, appears to be 

subject to the terms of an agreement 

authorized by section 208(a)(2)(A) of the 

Act, and seeks the alien’s removal 

consistent with that provision, prior to 

any determination concerning whether 

the alien has a credible fear of 

persecution, reasonable possibility of 

persecution, or a reasonable possibility 

of torture, the asylum officer shall 

conduct a threshold screening interview 

to determine whether the alien is 

ineligible to apply for asylum in the 

United States and is subject to removal 

to a country (‘‘receiving country’’) that 

is a signatory to the applicable 

agreement authorized by section 

208(a)(2)(A) of the Act, other than the 

U.S.-Canada Agreement effectuated in 

2004. * * * 

* * * * * 

(ii) If the alien establishes by a 

preponderance of the evidence that he 

or she qualifies for an exception under 

the terms of the applicable agreement, 

or would more likely than not be 

persecuted on account of his or her race, 

religion, nationality, membership in a 

particular social group, or tortured, in 

the receiving country, the asylum officer 

shall make a written notation to that 

effect, and may then proceed to 

determine whether any other agreement 

is applicable to the alien under the 

procedures set forth in this paragraph 

(e)(7). If the alien establishes by a 

preponderance of the evidence that he 

or she qualifies for an exception under 

the terms of each of the applicable 

agreements, or would more likely than 

not be persecuted on account of his or 

her race, religion, nationality, 

membership in a particular social group, 

or tortured, in each of the prospective 

receiving countries, the asylum officer 

shall make a written notation to that 

effect, and then proceed immediately to 

a determination concerning whether the 

alien has a credible fear of persecution, 

reasonable possibility of persecution, or 

a reasonable possibility of torture, under 

paragraph (d) of this section. 

* * * * * 

(f) Procedures for a positive fear 

determination. If, pursuant to paragraph 

(e) of this section, an alien stowaway or 

an alien subject to expedited removal 

establishes either a credible fear of 

persecution, reasonable possibility of 

persecution, or a reasonable possibility 

of torture: 

(1) DHS shall issue a Notice of 

Referral to Immigration Judge for 

asylum-and-withholding-only 

proceedings under 8 CFR 208.2(c)(1). 

(2) Parole of the alien may be 

considered only in accordance with 

section 212(d)(5) of the Act and 8 CFR 

212.5 of this chapter. 

(g) Procedures for a negative fear 

determination. (1) If, pursuant to 

paragraphs (e) and (f) of this section, an 

alien stowaway or an alien subject to 

expedited removal does not establish a 

credible fear of persecution, reasonable 

possibility of persecution, or reasonable 

possibility of torture, DHS shall provide 

the alien with a written notice of 

decision and inquire whether the alien 

wishes to have an immigration judge 

review the negative determination, in 

accordance with section 

235(b)(1)(B)(iii)(III) of the Act and this 

§ 208.30. The alien must indicate 

whether he or she desires such review 

on a Record of Negative Fear Finding 

and Request for Review by Immigration 

Judge. If the alien refuses to make an 

indication, DHS shall consider such a 

response as a decision to decline 

review. 

(i) If the alien requests such review, 

DHS shall arrange for detention of the 

alien and serve him or her with a Notice 

of Referral to Immigration Judge, for 

review of the negative fear 

determination in accordance with 

paragraph (g)(2) of this section. 

(ii) If the alien is not a stowaway and 

does not request a review by an 

immigration judge, DHS shall order the 

alien removed with a Notice and Order 

of Expedited Removal, after review by a 

supervisory officer. 

(iii) If the alien is a stowaway and the 

alien does not request a review by an 

immigration judge, DHS shall complete 

removal proceedings in accordance with 

section 235(a)(2) of the Act. (2) Review 

by immigration judge of a negative fear 

determination. 

(i) Immigration judges shall review 

negative fear determinations as 

provided in 8 CFR 1208.30(g). DHS, 

however, may reconsider a negative 

credible fear finding that has been 

concurred upon by an immigration 

judge after providing notice of its 

reconsideration to the immigration 

judge. 

(ii) DHS shall provide the record of 

any negative fear determinations being 

reviewed, including copies of the Notice 

of Referral to Immigration Judge, the 

asylum officer’s notes, the summary of 

the material facts, and other materials 

upon which the determination was 

based, to the immigration judge with the 

negative fear determination. 

■ 13. Amend § 208.31 by revising 

paragraphs (f) and (g) to read as follows: 

§ 208.31 Reasonable fear of persecution or 

torture determinations involving aliens 

ordered removed under section 238(b) of 

the Act and aliens whose removal is 

reinstated under section 241(a)(5) of the 

Act. 

* * * * * 

(f) Removal of aliens with no 

reasonable fear of persecution or 

torture. If the asylum officer determines 

that the alien has not established a 

reasonable fear of persecution or torture, 

the asylum officer shall inform the alien 

in writing of the decision and shall 

inquire whether the alien wishes to 

have an immigration judge review the 

negative decision, using the Record of 

Negative Reasonable Fear Finding and 

Request for Review by Immigration 

Judge, on which the alien must indicate 

whether he or she desires such review. 

If the alien refuses to make an 

indication, DHS shall consider such a 

response as a decision to decline 

review. 

(g) Review by immigration judge. The 

asylum officer’s negative decision 

regarding reasonable fear shall be 

subject to review by an immigration 

judge upon the alien’s request. If the 

alien requests such review, the asylum 

officer shall serve him or her with a 

Notice of Referral to Immigration Judge. 

The record of determination, including 

copies of the Notice of Referral to 

Immigration Judge, the asylum officer’s 

notes, the summary of the material facts, 

and other materials upon which the 

determination was based shall be 

provided to the immigration judge with 

the negative determination. In the 

absence of exceptional circumstances, 

such review shall be conducted by the 

immigration judge within 10 days of the 

filing of the Notice of Referral to 

Immigration Judge with the immigration 

court. Upon review of the asylum 

officer’s negative reasonable fear 

determination: 

(1) If the immigration judge concurs 

with the asylum officer’s determination 

that the alien does not have a reasonable 

fear of persecution or torture, the case 

shall be returned to DHS for removal of 

the alien. No appeal shall lie from the 

immigration judge’s decision. 

(2) If the immigration judge finds that 

the alien has a reasonable fear of 

persecution or torture, the alien may 

submit an Application for Asylum and 

for Withholding of Removal. 

(i) The immigration judge shall 

consider only the alien’s application for 

withholding of removal under 8 CFR 

1208.16 and shall determine whether 

the alien’s removal to the country of 

removal must be withheld or deferred. 

(ii) Appeal of the immigration judge’s 

decision whether removal must be 


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withheld or deferred lies with the Board 

of Immigration Appeals. If the alien or 

DHS appeals the immigration judge’s 

decision, the Board shall review only 

the immigration judge’s decision 

regarding the alien’s eligibility for 

withholding or deferral of removal 

under 8 CFR 1208.16. 

PART 235—INSPECTION OF PERSONS 

APPLYING FOR ADMISSION 

■ 14. The authority citation for part 235 

continues to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1103, 

1183, 1185 (pursuant to E.O. 13323, 69 FR 

241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 

1225, 1226, 1228, 1365a note, 1365b, 1379, 

1731–32; Title VII of Public Law 110–229; 8 

U.S.C. 1185 note (section 7209 of Public Law 

108–458); Public Law 112–54. 

■ 15. Amend § 235.6 by revising 

paragraphs (a)(1)(ii) and (a)(2)(i) and (iii) 

and adding paragraph (c) to read as 

follows: 

§ 235.6 Referral to immigration judge. 

(a) * * * 

(1) * * * 

(ii) If an immigration officer verifies 

that an alien subject to expedited 

removal under section 235(b)(1) of the 

Act has been admitted as a lawful 

permanent resident or refugee, or 

granted asylum, or, upon review 

pursuant to § 235.3(b)(5)(iv) of chapter I, 

an immigration judge determines that 

the alien was once so admitted or 

granted asylum, provided that such 

status has not been terminated by final 

administrative action, and the DHS 

initiates removal proceedings against 

the alien under section 240 of the Act. 

* * * * * 

(2) * * * 

(i) If an asylum officer determines that 

the alien does not have a credible fear 

of persecution, reasonable possibility of 

persecution, or reasonable possibility of 

torture, and the alien requests a review 

of that determination by an immigration 

judge; or 

* * * * * 

(iii) If an immigration officer refers an 

applicant in accordance with the 

provisions of 8 CFR 208.30 or 8 CFR 

208.31. 

* * * * * 

(c) The provisions of part 235 are 

separate and severable from one 

another. In the event that any provision 

in part 235 is stayed, enjoined, not 

implemented, or otherwise held invalid, 

the remaining provisions shall 

nevertheless be implemented as an 

independent rule and continue in effect. 

DEPARTMENT OF JUSTICE 

Accordingly, for the reasons set forth 

in the preamble, 8 CFR parts 1003, 1208, 

1212, 1235, and 1244 are amended as 

follows: 

PART 1003—EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW 

■ 16. The authority citation for part 

1003 continues to read as follows: 

Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 

U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 

1226, 1229, 1229a, 1229b, 1229c, 1231, 

1254a, 1255, 1324d, 1330, 1361, 1362; 28 

U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 

2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002; 

section 203 of Public Law 105–100, 111 Stat. 

2196–200; sections 1506 and 1510 of Public 

Law 106–386, 114 Stat. 1527–29, 1531–32; 

section 1505 of Public Law 106–554, 114 

Stat. 2763A–326 to–328. 

■ 17. Amend § 1003.1 by revising 

paragraph (b)(9) to read as follows: 

§ 1003.1 Organization, jurisdiction, and 

powers of the Board of Immigration 

Appeals. 

* * * * * 

(b) * * * 

(9) Decisions of Immigration Judges in 

asylum proceedings pursuant to 

§ 1208.2(b) and (c) of this chapter. 

* * * * * 

■ 18. Amend § 1003.42 by revising the 

section heading and paragraphs (a), (b), 

(d) through (g), (h)(1), and the last 

sentence in paragraph (h)(3) and adding 

paragraph (i) to read as follows: 

§ 1003.42 Review of credible fear of 

persecution, reasonable possibility of 

persecution, and reasonable possibility of 

torture determinations. 

(a) Referral. Jurisdiction for an 

immigration judge to review a negative 

fear determination by an asylum officer 

pursuant to section 235(b)(1)(B) of the 

Act shall commence with the filing by 

DHS of the Notice of Referral to 

Immigration Judge. DHS shall also file 

with the notice of referral a copy of the 

written record of determination as 

defined in section 235(b)(1)(B)(iii)(II) of 

the Act, including a copy of the alien’s 

written request for review, if any. 

(b) Record of proceeding. The 

Immigration Court shall create a Record 

of Proceeding for a review of a negative 

fear determination. This record shall not 

be merged with any later proceeding 

involving the same alien. 

* * * * * 

(d) Standard of review. (1) The 

immigration judge shall make a de novo 

determination as to whether there is a 

significant possibility, taking into 

account the credibility of the statements 

made by the alien in support of the 

alien’s claim, whether the alien is 

subject to any mandatory bars to 

applying for asylum or being eligible for 

asylum under section 208(a)(2)(B)–(D) 

and (b)(2) of the Act, including any bars 

established by regulation under section 

208(b)(2)(C) of the Act, and such other 

facts as are known to the immigration 

judge, that the alien could establish his 

or her ability to apply for or be granted 

asylum under section 208 of the Act. 

The immigration judge shall make a de 

novo determination as to whether there 

is a reasonable possibility, taking into 

account the credibility of the statements 

made by the alien in support of the 

alien’s claim, whether the alien is 

subject to any mandatory bars to 

eligibility for withholding of removal 

under section 241(b)(3)(B) of the Act, 

and such other facts as are known to the 

immigration judge, that the alien would 

be persecuted on account of his or her 

race, religion, nationality, membership 

in a particular social group, or political 

opinion in the country of removal, 

consistent with the criteria in 8 CFR 

1208.16(b). The immigration judge shall 

also make a de novo determination as to 

whether there is a reasonable 

possibility, taking into account the 

credibility of the statements made by 

the alien in support of the alien’s claim 

and such other facts as are known to the 

immigration judge, that the alien would 

be tortured in the country of removal, 

consistent with the criteria in 8 CFR 

1208.16(c), 8 CFR 1208.17, and 8 CFR 

1208.18. 

(2) If the alien is determined to be an 

alien described in 8 CFR208.13(c)(3) or 

8 CFR 1208.13(c)(3) and is determined 

to lack a reasonable possibility of 

persecution or torture under 8 CFR 

208.30(e)(5)(ii), the Immigration Judge 

shall first review de novo the 

determination that the alien is described 

in 8 CFR 208.13(c)(3) or 8 CFR 

1208.13(c)(3) prior to any further review 

of the asylum officer’s negative fear 

determination. 

(3) If the alien is determined to be an 

alien described in 8 CFR 208.13(c)(4) or 

8 CFR 1208.13(c)(4) and is determined 

to lack a reasonable possibility of 

persecution or torture under 8 CFR 

208.30(e)(5)(iii), the immigration judge 

shall first review de novo the 

determination that the alien is described 

in 8 CFR 208.13(c)(4) or 8 CFR 

1208.13(c)(4) prior to any further review 

of the asylum officer’s negative fear 

determination. 

(e) Timing. The immigration judge 

shall conclude the review to the 

maximum extent practicable within 24 

hours, but in no case later than 7 days 

after the date the supervisory asylum 

officer has approved the asylum officer’s 


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negative credible fear determination 

issued on the Record of Negative 

Credible Fear Finding and Request for 

Review. 

(f) Decision. (1) The decision of the 

immigration judge shall be rendered in 

accordance with the provisions of 8 CFR 

1208.30(g)(2). In reviewing the negative 

fear determination by DHS, the 

immigration judge shall apply relevant 

precedent issued by the Board of 

Immigration Appeals, the Attorney 

General, the Federal circuit court of 

appeals having jurisdiction over the 

immigration court where the Request for 

Review is filed, and the Supreme Court. 

(2) No appeal shall lie from a review 

of a negative fear determination made 

by an Immigration Judge, but the 

Attorney General, in the Attorney 

General’s sole and unreviewable 

discretion, may direct that the 

Immigration Judge refer a case for the 

Attorney General’s review following the 

Immigration Judge’s review of a negative 

fear determination. 

(3) In any case the Attorney General 

decides, the Attorney General’s decision 

shall be stated in writing and shall be 

transmitted to the Board for transmittal 

and service as provided in 8 CFR 

1003.1(f). Such decision by the Attorney 

General may be designated as precedent 

as provided in 8 CFR 1003.1(g). 

(g) Custody. An immigration judge 

shall have no authority to review an 

alien’s custody status in the course of a 

review of a negative fear determination 

made by DHS. 

(h) * * * 

(1) Arriving alien. An immigration 

judge has no jurisdiction to review a 

determination by an asylum officer that 

an arriving alien is not eligible to apply 

for asylum pursuant to the 2002 U.S.- 

Canada Agreement formed under 

section 208(a)(2)(A) of the Act and 

should be returned to Canada to pursue 

his or her claims for asylum or other 

protection under the laws of Canada. 

See 8 CFR 208.30(e)(6). However, in any 

case where an asylum officer has found 

that an arriving alien qualifies for an 

exception to that Agreement, an 

immigration judge does have 

jurisdiction to review a negative fear 

finding made thereafter by the asylum 

officer as provided in this section. 

* * * * * 

(3) * * * However, if the asylum 

officer has determined that the alien 

may not or should not be removed to a 

third country under section 208(a)(2)(A) 

of the Act and subsequently makes a 

negative fear determination, an 

immigration judge has jurisdiction to 

review the negative fear finding as 

provided in this section. 

* * * * * 

(i) Severability. The provisions of part 

1003 are separate and severable from 

one another. In the event that any 

provision in part 1003 is stayed, 

enjoined, not implemented, or 

otherwise held invalid, the remaining 

provisions shall nevertheless be 

implemented as an independent rule 

and continue in effect. 

PART 1208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL 

■ 19. The authority citation for part 

1208 continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1158, 

1226, 1252, 1282; Title VII of Public Law 

110–229. 

■ 20. Amend § 1208.1 by adding 

paragraphs (c) through (g) to read as 

follows: 

§ 1208.1 General. 

* * * * * 

(c) Particular social group. For 

purposes of adjudicating an application 

for asylum under section 208 of the Act 

or an application for withholding of 

removal under section 241(b)(3) of the 

Act, a particular social group is one that 

is based on an immutable or 

fundamental characteristic, is defined 

with particularity, and is recognized as 

socially distinct in the society at 

question. Such a particular social group 

cannot be defined exclusively by the 

alleged persecutory acts or harm and 

must also have existed independently of 

the alleged persecutory acts or harm that 

forms the basis of the claim. The 

Attorney General, in general, will not 

favorably adjudicate claims of aliens 

who claim a fear of persecution on 

account of membership in a particular 

social group consisting of or defined by 

the following circumstances: past or 

present criminal activity or association 

(including gang membership); presence 

in a country with generalized violence 

or a high crime rate; being the subject 

of a recruitment effort by criminal, 

terrorist, or persecutory groups; the 

targeting of the applicant for criminal 

activity for financial gain based on 

perceptions of wealth or affluence; 

interpersonal disputes of which 

governmental authorities were unaware 

or uninvolved; private criminal acts of 

which governmental authorities were 

unaware or uninvolved; past or present 

terrorist activity or association; past or 

present persecutory activity or 

association; or, status as an alien 

returning from the United States. This 

list is nonexhaustive, and the substance 

of the alleged particular social group, 

rather than the precise form of its 

delineation, shall be considered in 

determining whether the group falls 

within one of the categories on the list. 

No alien shall be found to be a refugee 

or have it decided that the alien’s life or 

freedom would be threatened based on 

membership in a particular social group 

in any case unless that person first 

articulates on the record, or provides a 

basis on the record for determining, the 

definition and boundaries of the alleged 

particular social group. A failure to 

define, or provide a basis for defining, 

a formulation of a particular social 

group before an immigration judge shall 

waive any such claim for all purposes 

under the Act, including on appeal. Any 

waived claim on this basis shall not 

serve as the basis for any motion to 

reopen or reconsider for any reason, 

including a claim of ineffective 

assistance of counsel unless the alien 

complies with the procedural 

requirements for such a motion and 

demonstrates that counsel’s failure to 

define, or provide a basis for defining, 

a formulation of a particular social 

group was both not a strategic choice 

and constituted egregious conduct. 

(d) Political opinion. For purposes of 

adjudicating an application for asylum 

under section 208 of the Act or an 

application for withholding of removal 

under section 241(b)(3) of the Act, a 

political opinion is one expressed by or 

imputed to an applicant in which the 

applicant possesses an ideal or 

conviction in support of the furtherance 

of a discrete cause related to political 

control of a State or a unit thereof. The 

Attorney General, in general, will not 

favorably adjudicate claims of aliens 

who claim a fear of persecution on 

account of a political opinion defined 

solely by generalized disapproval of, 

disagreement with, or opposition to 

criminal, terrorist, gang, guerilla, or 

other non-state organizations absent 

expressive behavior in furtherance of a 

cause against such organizations related 

to efforts by the State to control such 

organizations or behavior that is 

antithetical to or otherwise opposes the 

ruling legal entity of the State or a legal 

sub-unit of the State. A person who has 

been forced to abort a pregnancy or to 

undergo involuntary sterilization, or 

who has been persecuted for failure or 

refusal to undergo such a procedure or 

for other resistance to a coercive 

population control program, shall be 

deemed to have been persecuted on 

account of political opinion, and a 

person who has a well-founded fear that 

he or she will be forced to undergo such 

a procedure or subject to persecution for 


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such failure, refusal, or resistance shall 

be deemed to have a well-founded fear 

of persecution on account of political 

opinion. 

(e) Persecution. For purposes of 

adjudicating an application for asylum 

under section 208 of the Act or an 

application for withholding of removal 

under section 241(b)(3) of the Act, 

persecution requires an intent to target 

a belief or characteristic, a severe level 

of harm, and the infliction of a severe 

level of harm by the government of a 

country or by persons or an organization 

that the government was unable or 

unwilling to control. For purposes of 

evaluating the severity of the level of 

harm, persecution is an extreme concept 

involving a severe level of harm that 

includes actions so severe that they 

constitute an exigent threat. Persecution 

does not encompass the generalized 

harm that arises out of civil, criminal, or 

military strife in a country, nor does it 

encompass all treatment that the United 

States regards as unfair, offensive, 

unjust, or even unlawful or 

unconstitutional. It does not include 

intermittent harassment, including brief 

detentions; threats with no actual effort 

to carry out the threats, except that 

particularized threats of a severe harm 

of immediate and menacing nature 

made by an identified entity may 

constitute persecution; or, non-severe 

economic harm or property damage, 

though this list is nonexhaustive. The 

existence of government laws or policies 

that are unenforced or infrequently 

enforced do not, by themselves, 

constitute persecution, unless there is 

credible evidence that those laws or 

policies have been or would be applied 

to an applicant personally. 

(f) Nexus. For purposes of 

adjudicating an application for asylum 

under section 208 of the Act or an 

application for withholding of removal 

under section 241(b)(3) of the Act, the 

Attorney General, in general, will not 

favorably adjudicate the claims of aliens 

who claim persecution based on the 

following list of nonexhaustive 

circumstances: 

(1) Interpersonal animus or 

retribution; 

(2) Interpersonal animus in which 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 

has raised the claim at issue; 

(3) Generalized disapproval of, 

disagreement with, or opposition to 

criminal, terrorist, gang, guerilla, or 

other non-state organizations absent 

expressive behavior in furtherance of a 

discrete cause against such 

organizations related to control of a 

State or expressive behavior that is 

antithetical to the State or a legal unit 

of the State; 

(4) Resistance to recruitment or 

coercion by guerilla, criminal, gang, 

terrorist or other non-state 

organizations; 

(5) The targeting of the applicant for 

criminal activity for financial gain based 

on wealth or affluence or perceptions of 

wealth or affluence; 

(6) Criminal activity; 

(7) Perceived, past or present, gang 

affiliation; or, 

(8) Gender. 

(g) Evidence based on stereotypes. For 

purposes of adjudicating an application 

for asylum under section 208 of the Act 

or an application for withholding of 

removal under section 241(b)(3) of the 

Act, evidence offered in support of such 

an application which promotes cultural 

stereotypes about a country, its 

inhabitants, or an alleged persecutor, 

including stereotypes based on race, 

religion, nationality, or gender, shall not 

be admissible in adjudicating that 

application, provided that nothing in 

this paragraph shall be construed as 

prohibiting the submission of evidence 

that an alleged persecutor holds 

stereotypical views of the applicant. 

■ 21. Amend § 1208.2 by adding 

paragraph (c)(1)(ix) to read as follows: 

§ 1208.2 Jurisdiction. 

* * * * * 

(c) * * * 

(1) * * * 

(ix) An alien found to have a credible 

fear of persecution, reasonable 

possibility of persecution, or reasonable 

possibility of torture in accordance with 

§ 208.30, § 1003.42, or § 1208.30. 

* * * * * 

■ 22. Amend § 1208.5 by revising the 

first sentence of paragraph (a) to read as 

follows: 

§ 1208.5 Special duties toward aliens in 

custody of DHS. 

(a) General. When an alien in the 

custody of DHS requests asylum or 

withholding of removal, or expresses a 

fear of persecution or harm upon return 

to his or her country of origin or to 

agents thereof, DHS shall make available 

the appropriate application forms and 

shall provide the applicant with the 

information required by section 

208(d)(4) of the Act, including in the 

case of an alien who is in custody with 

a positive credible fear determination 

under 8 CFR 208.30 or a reasonable fear 

determination pursuant to 8 CFR 

208.31, and except in the case of an 

alien who is in custody pending a 

credible fear determination under 8 CFR 

208.30 or a reasonable fear 

determination pursuant to 8 CFR 

208.31. * * * 

* * * * * 

■ 23. Amend § 1208.6 by revising 

paragraphs (a) and (b) and adding 

paragraphs (d) and (e) to read as follows: 

§ 1208.6 Disclosure to third parties. 

(a) Information contained in or 

pertaining to any application for refugee 

admission, asylum, withholding of 

removal under section 241(b)(3) of the 

Act, or protection under regulations 

issued pursuant to the Convention 

Against Torture’s implementing 

legislation, records pertaining to any 

credible fear determination conducted 

pursuant to § 208.30, and records 

pertaining to any reasonable fear 

determination conducted pursuant to 

§ 208.31, shall not be disclosed without 

the written consent of the applicant, 

except as permitted by this section or at 

the discretion of the Attorney General. 

(b) The confidentiality of other 

records kept by DHS and the Executive 

Office for Immigration Review that 

indicate that a specific alien has applied 

for refugee admission, asylum, 

withholding of removal under section 

241(b)(3) of the Act, or protection under 

regulations issued pursuant to the 

Convention Against Torture’s 

implementing legislation, or has 

received a credible fear or reasonable 

fear interview, or received a credible 

fear or reasonable fear review shall also 

be protected from disclosure, except as 

permitted in this section. DHS will 

coordinate with the Department of State 

to ensure that the confidentiality of 

those records is maintained if they are 

transmitted to Department of State 

offices in other countries. 

* * * * * 

(d)(1) Any information contained in 

an application for refugee admission, 

asylum, withholding of removal under 

section 241(b)(3) the Act, or protection 

under regulations issued pursuant to the 

Convention Against Torture’s 

implementing legislation, any relevant 

and applicable information supporting 

that application, any information 

regarding an alien who has filed such an 

application, and any relevant and 

applicable information regarding an 

alien who has been the subject of a 

reasonable fear or credible fear 

determination may be disclosed: 

(i) As part of an investigation or 

adjudication of the merits of that 

application or of any other application 

under the immigration laws; 

(ii) As part of any State or Federal 

criminal investigation, proceeding, or 

prosecution; 


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(iii) Pursuant to any State or Federal 

mandatory reporting requirement; 

(iv) To deter, prevent, or ameliorate 

the effects of child abuse; 

(v) As part of any proceeding arising 

under the immigration laws, including 

proceedings arising under the Act; and 

(vi) As part of the Government’s 

defense of any legal action relating to 

the alien’s immigration or custody 

status, including petitions for review 

filed in accordance with 8 U.S.C. 1252. 

(2) If information may be disclosed 

under paragraph (d)(1) of this section, 

the disclosure provisions in paragraphs 

(a), (b), and (c) of this section shall not 

apply. 

(e) Nothing in this section shall be 

construed as prohibiting the disclosure 

of information contained in an 

application for refugee admission, 

asylum, withholding of removal under 

section 241(b)(3)(B) of the Act, or 

protection under the regulations issued 

pursuant to the Convention Against 

Torture’s implementing legislation, any 

relevant and applicable information 

supporting that application, information 

regarding an alien who has filed such an 

application, or information regarding an 

alien who has been the subject of a 

reasonable fear or credible fear 

determination: 

(1) Among employees of the 

Department of Justice, the Department 

of Homeland Security, the Department 

of State, the Department of Health and 

Human Services, the Department of 

Labor, or a U.S. national security agency 

having a need to examine the 

information for an official purpose; or 

(2) Where a United States government 

employee or contractor has a good faith 

and reasonable belief that disclosure is 

necessary to prevent the commission of 

a crime, the furtherance of an ongoing 

crime, or to ameliorate the effects of a 

crime. 

■ 24. Section 1208.13 is amended by 

revising paragraphs (b)(3) introductory 

text and (b)(3)(ii) and adding paragraphs 

(b)(3)(iii) and (iv), (d), and (e) to read as 

follows: 

§ 1208.13 Establishing asylum eligibility. 

* * * * * 

(b) * * * 

(3) Reasonableness of internal 

relocation. For purposes of 

determinations under paragraphs 

(b)(1)(i) and (ii) and (b)(2) of this 

section, adjudicators should consider 

the totality of the relevant 

circumstances regarding an applicant’s 

prospects for relocation, including the 

size of the country of nationality or last 

habitual residence, the geographic locus 

of the alleged persecution, the size, 

numerosity, and reach of the alleged 

persecutor, and the applicant’s 

demonstrated ability to relocate to the 

United States in order to apply for 

asylum. 

* * * * * 

(ii) In cases in which the persecutor 

is a government or is governmentsponsored, it shall be presumed that 

internal relocation would not be 

reasonable, unless the Department of 

Homeland Security establishes by a 

preponderance of the evidence that, 

under all the circumstances, it would be 

reasonable for the applicant to relocate. 

(iii) Regardless of whether an 

applicant has established persecution in 

the past, in cases in which the 

persecutor is not the government or a 

government-sponsored actor, or 

otherwise is a private actor, there shall 

be a presumption that internal 

relocation would be reasonable unless 

the applicant establishes, by a 

preponderance of the evidence, that it 

would be unreasonable to relocate. 

(iv) For purposes of determinations 

under paragraphs (b)(3)(ii) and (iii) of 

this section, persecutors who are private 

actors—including persecutors who are 

gang members, officials acting outside 

their official capacity, family members 

who are not themselves government 

officials, or neighbors who are not 

themselves government officials—shall 

not be considered to be persecutors who 

are the government or governmentsponsored absent evidence that the 

government sponsored the persecution. 

* * * * * 

(d) Discretion. Factors that fall short 

of grounds of mandatory denial of an 

asylum application may constitute 

discretionary considerations. 

(1) The following are significant 

adverse discretionary factors that a 

decision-maker shall consider, if 

applicable, in determining whether an 

alien merits a grant of asylum in the 

exercise of discretion: 

(i) An alien’s unlawful entry or 

unlawful attempted entry into the 

United States unless such entry or 

attempted entry was made in immediate 

flight from persecution in a contiguous 

country or unless such entry or 

attempted entry was made by an alien 

under the age of 18 at the time the entry 

or attempted entry was made; 

(ii) The failure of an alien to apply for 

protection from persecution or torture in 

at least one country outside the alien’s 

country of citizenship, nationality, or 

last lawful habitual residence through 

which the alien transited before entering 

the United States unless: 

(A) The alien received a final 

judgment denying the alien protection 

in such country; 

(B) The alien demonstrates that he or 

she satisfies the definition of ‘‘victim of 

a severe form of trafficking in persons’’ 

provided in 8 CFR 214.11; or 

(C) Such country or countries were, at 

the time of the transit, not parties to the 

1951 Convention relating to the Status 

of Refugees, the 1967 Protocol relating 

to the Status of Refugees, or the 

Convention Against Torture and Other 

Cruel, Inhuman or Degrading Treatment 

or Punishment; and 

(iii) An alien’s use of fraudulent 

documents to enter the United States, 

unless the alien arrived in the United 

States by air, sea, or land directly from 

the applicant’s home country without 

transiting through any other country. 

(2)(i) The Attorney General, except as 

provided in paragraph (d)(2)(ii) of this 

section, will not favorably exercise 

discretion under section 208 of the Act 

for an alien who: 

(A) Immediately prior to his arrival in 

the United States or en route to the 

United States from the alien’s country of 

citizenship, nationality, or last lawful 

habitual residence, spent more than 14 

days in any one country unless: 

(1) The alien demonstrates that he or 

she applied for protection from 

persecution or torture in such country 

and the alien received a final judgment 

denying the alien protection in such 

country; 

(2) The alien demonstrates that he or 

she satisfies the definition of ‘‘victim of 

a severe form of trafficking in persons’’ 

provided in 8 CFR 214.11; or 

(3) Such country was, at the time of 

the transit, not a party to the 1951 

Convention relating to the Status of 

Refugees the 1967 Protocol relating to 

the Status of Refugees, or the 

Convention against Torture and Other 

Cruel, Inhuman or Degrading Treatment 

or Punishment; 

(B) Transits through more than one 

country between his country of 

citizenship, nationality, or last habitual 

residence and the United States unless: 

(1) The alien demonstrates that he or 

she applied for protection from 

persecution or torture in at least one 

such country and the alien received a 

final judgment denying the alien 

protection in such country; 

(2) The alien demonstrates that he or 

she satisfies the definition of ‘‘victim of 

a severe form of trafficking in persons’’ 

provided in 8 CFR 214.11; or 

(3) All such countries through which 

the alien transited en route to the 

United States were, at the time of the 

transit, not parties to the 1951 

Convention relating to the Status of 

Refugees, the 1967 Protocol relating to 

the Status of Refugees, or the 

Convention against Torture and Other 


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Cruel, Inhuman or Degrading Treatment 

or Punishment; 

(C) Would otherwise be subject to 

§ 1208.13(c) but for the reversal, vacatur, 

expungement, or modification of a 

conviction or sentence unless the alien 

was found not guilty; 

(D) Accrued more than one year of 

unlawful presence in the United States, 

as defined in sections 212(a)(9)(B)(ii) 

and (iii) of the Act, prior to filing an 

application for asylum; 

(E) At the time the asylum application 

is filed with the immigration court or is 

referred from DHS has: 

(1) Failed to timely file (or timely file 

a request for an extension of time to file) 

any required Federal, State, or local 

income tax returns; 

(2) Failed to satisfy any outstanding 

Federal, State, or local tax obligations; 

or 

(3) Has income that would result in 

tax liability under section 1 of the 

Internal Revenue Code of 1986 and that 

was not reported to the Internal 

Revenue Service; 

(F) Has had two or more prior asylum 

applications denied for any reason; 

(G) Has withdrawn a prior asylum 

application with prejudice or been 

found to have abandoned a prior asylum 

application; 

(H) Failed to attend an interview 

regarding his or her asylum application 

with DHS, unless the alien shows by a 

preponderance of the evidence that: 

(1) Exceptional circumstances 

prevented the alien from attending the 

interview; or 

(2) The interview notice was not 

mailed to the last address provided by 

the alien or the alien’s representative 

and neither the alien nor the alien’s 

representative received notice of the 

interview; or 

(I) Was subject to a final order of 

removal, deportation, or exclusion and 

did not file a motion to reopen to seek 

asylum based on changed country 

conditions within one year of the 

changes in country conditions. 

(ii) Where one or more of the adverse 

discretionary factors set forth in 

paragraph (d)(2)(i) of this section are 

present, the Attorney General, in 

extraordinary circumstances, such as 

those involving national security or 

foreign policy considerations, or cases 

in which an alien, by clear and 

convincing evidence, demonstrates that 

the denial of the application for asylum 

would result in exceptional and 

extremely unusual hardship to the alien, 

may favorably exercise discretion under 

section 208 of the Act, notwithstanding 

the applicability of paragraph (d)(2)(i). 

Depending on the gravity of the 

circumstances underlying the 

application of paragraph (d)(2)(i), a 

showing of extraordinary circumstances 

might still be insufficient to warrant a 

favorable exercise of discretion under 

section 208 of the Act. 

(e) Prima facie eligibility. (1) 

Notwithstanding any other provision of 

this part, upon oral or written motion by 

the Department of Homeland Security, 

an immigration judge shall, if warranted 

by the record, pretermit and deny any 

application for asylum, withholding of 

removal under section 241(b)(3) of the 

Act, or protection under the regulations 

issued pursuant to the Convention 

Against Torture’s implementing 

legislation if the alien has not 

established a prima facie claim for relief 

or protection under applicable law. An 

immigration judge need not conduct a 

hearing prior to pretermitting and 

denying an application under this 

paragraph (e)(1) but must consider any 

response to the motion before making a 

decision. 

(2) Notwithstanding any other 

provision of this part, upon his or her 

own authority, an immigration judge 

shall, if warranted by the record, 

pretermit and deny any application for 

asylum, withholding of removal under 

section 241(b)(3) of the Act, or 

protection under the regulations issued 

pursuant to the Convention Against 

Torture’s implementing legislation if the 

alien has not established a prima facie 

claim for relief or protection under 

applicable law, provided that the 

immigration judge shall give the parties 

at least 10 days’ notice prior to entering 

such an order. An immigration judge 

need not conduct a hearing prior to 

pretermitting and denying an 

application under this paragraph (e)(2) 

but must consider any filings by the 

parties within the 10-day period before 

making a decision. 

§ 1208.14 [Amended] 

■ 25. Amend § 1208.14 by 

■ a. Removing the words ‘‘§ 1235.3(b) of 

this chapter’’ in paragraphs (c)(4)(ii) 

introductory text and (c)(4)(ii)(A) and 

adding in their place the words 

‘‘§ 235.3(b) of chapter I’’; and 

■ b. Removing the citations ‘‘§ 1208.30’’ 

and ‘‘§ 1208.30(b)’’ in paragraph 

(c)(4)(ii)(A) and adding in their place 

the words ‘‘§ 208.30 of chapter I’’. 

■ 26. Revise § 1208.15 to read as 

follows: 

§ 1208.15 Definition of ‘‘firm resettlement.’’ 

(a) An alien is considered to be firmly 

resettled if, after the events giving rise 

to the alien’s asylum claim: 

(1) The alien resided in a country 

through which the alien transited prior 

to arriving in or entering the United 

States and— 

(i) Received or was eligible for any 

permanent legal immigration status in 

that country; 

(ii) Resided in such a country with 

any non-permanent but indefinitely 

renewable legal immigration status 

(including asylee, refugee, or similar 

status but excluding status such as of a 

tourist); or 

(iii) Resided in such a country and 

could have applied for and obtained any 

non-permanent but indefinitely 

renewable legal immigration status in 

that country; 

(2) The alien physically resided 

voluntarily, and without continuing to 

suffer persecution in any one country 

for one year or more after departing his 

country of nationality or last habitual 

residence and prior to arrival in or entry 

into the United States, provided that 

time spent in Mexico by an alien who 

is not a native or citizen of Mexico 

solely as a direct result of being 

returned to Mexico pursuant to section 

235(b)(2)(C) of the Act or of being 

subject to metering would not be 

counted for purposes of this paragraph; 

or 

(3)(i) The alien is a citizen of a 

country other than the one where the 

alien alleges a fear of persecution and 

the alien was present in that country 

after departing his country of nationality 

or last habitual residence and prior to 

arrival in or entry into the United States, 

or 

(ii) the alien was a citizen of a country 

other than the one where the alien 

alleges a fear of persecution, the alien 

was present in that country after 

departing his country of nationality or 

last habitual residence and prior to 

arrival in or entry into the United States, 

and the alien renounced that citizenship 

after arriving in the United States. 

(b) The provisions of 8 CFR 1240.8(d) 

shall apply when the evidence of record 

indicates that the firm resettlement bar 

may apply. In such cases, the alien shall 

bear the burden of proving the bar does 

not apply. Either DHS or the 

immigration judge may raise the issue of 

the application of the firm resettlement 

bar based on the evidence of record. The 

firm resettlement of an alien’s parent(s) 

shall be imputed to the alien if the 

resettlement occurred before the alien 

turned 18 and the alien resided with the 

alien’s parents at the time of the firm 

resettlement unless he or she could not 

have derived any permanent legal 

immigration status or any nonpermanent but indefinitely renewable 

legal immigration status (including 

asylee, refugee, or similar status but 


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excluding status such as of a tourist) 

from the alien’s parent. 

■ 27. Amend § 1208.16 by revising 

paragraphs (b)(3) introductory text and 

(b)(3)(ii) and adding paragraphs 

(b)(3)(iii) and (iv) to read as follows: 

§ 1208.16 Withholding of removal under 

section 241(b)(3)(B) of the Act and 

withholding of removal under the 

Convention Against Torture. 

* * * * * 

(b) * * * 

(3) Reasonableness of internal 

relocation. For purposes of 

determinations under paragraphs (b)(1) 

and (2) of this section, adjudicators 

should consider the totality of the 

relevant circumstances regarding an 

applicant’s prospects for relocation, 

including the size of the country of 

nationality or last habitual residence, 

the geographic locus of the alleged 

persecution, the size, reach, or 

numerosity of the alleged persecutor, 

and the applicant’s demonstrated ability 

to relocate to the United States in order 

to apply for withholding of removal. 

* * * * * 

(ii) In cases in which the persecutor 

is a government or is governmentsponsored, it shall be presumed that 

internal relocation would not be 

reasonable, unless the DHS establishes 

by a preponderance of the evidence that, 

under all the circumstances, it would be 

reasonable for the applicant to relocate. 

(iii) Regardless of whether an 

applicant has established persecution in 

the past, in cases in which the 

persecutor is not the government or a 

government-sponsored actor, or 

otherwise is a private actor, there shall 

be a presumption that internal 

relocation would be reasonable unless 

the applicant establishes, by a 

preponderance of the evidence, that it 

would be unreasonable to relocate. 

(iv) For purposes of determinations 

under paragraphs (b)(3)(ii) and (iii) of 

this section, persecutors who are private 

actors, including persecutors who are 

gang members, public official who are 

not acting under color of law, or family 

members who are not themselves 

government officials or neighbors who 

are not themselves government officials, 

shall not be considered to be 

persecutors who are the government or 

government-sponsored absent evidence 

that the government sponsored the 

persecution. 

* * * * * 

■ 28. Amend § 1208.18 by revising 

paragraphs (a)(1) and (7) to read as 

follows: 

§ 1208.18 Implementation of the 

Convention Against Torture. 

(a) * * * 

(1) Torture is defined as any act by 

which severe pain or suffering, whether 

physical or mental, is intentionally 

inflicted on a person for such purposes 

as obtaining from him or her or a third 

person information or a confession, 

punishing him or her for an act he or 

she or a third person has committed or 

is suspected of having committed, 

intimidating or coercing him or her or 

a third person, or for any reason based 

on discrimination of any kind, when 

such pain or suffering is inflicted by, or 

at the instigation of, or with the consent 

or acquiescence of, a public official 

acting in an official capacity or other 

person acting in an official capacity. 

Pain or suffering inflicted by a public 

official who is not acting under color of 

law shall not constitute pain or suffering 

inflicted by, or at the instigation of, or 

with the consent or acquiescence of, a 

public official acting in an official 

capacity or other person acting in an 

official capacity, although a different 

public official acting in an official 

capacity or other person acting in an 

official capacity could instigate, consent 

to, or acquiesce in the pain or suffering 

inflicted by the public official who is 

not acting under color of law. 

* * * * * 

(7) Acquiescence of a public official 

requires that the public official, prior to 

the activity constituting torture, have 

awareness of such activity and 

thereafter breach his or her legal 

responsibility to intervene to prevent 

such activity. Such awareness requires a 

finding of either actual knowledge or 

willful blindness. Willful blindness 

means that the public official acting in 

an official capacity or other person 

acting in an official capacity was aware 

of a high probability of activity 

constituting torture and deliberately 

avoided learning the truth; it is not 

enough that such public official acting 

in an official capacity or other person 

acting in an official capacity was 

mistaken, recklessly disregarded the 

truth, or negligently failed to inquire. In 

order for a public official to breach his 

or her legal responsibility to intervene 

to prevent activity constituting torture, 

the official must have been charged with 

preventing the activity as part of his or 

her duties and have failed to intervene. 

No person will be deemed to have 

breached a legal responsibility to 

intervene if such person is unable to 

intervene, or if the person intervenes 

but is unable to prevent the activity that 

constitutes torture. 

* * * * * 

■ 29. Revise § 1208.20 to read as 

follows: 

§ 1208.20 Determining if an asylum 

application is frivolous. 

(a) For applications filed on or after 

April 1, 1997, and before January 11, 

2021, an applicant is subject to the 

provisions of section 208(d)(6) of the 

Act only if the alien received the notice 

required by section 208(d)(4)(A) of the 

Act and a final order by an immigration 

judge or the Board of Immigration 

Appeals specifically finds that the alien 

knowingly filed a frivolous asylum 

application. An application is frivolous 

if: 

(1) Any of the material elements in 

the asylum application is deliberately 

fabricated, and the immigration judge or 

the Board is satisfied that the applicant, 

during the course of the proceedings, 

has had sufficient opportunity to 

account for any discrepancies or 

implausible aspects of the claim. 

(2) Paragraphs (b) through (f) shall 

only apply to applications filed on or 

after January 11, 2021. 

(b) For applications filed on or after 

January 11, 2021, an asylum officer may 

determine that the applicant knowingly 

filed a frivolous asylum application and 

may refer the applicant to an 

immigration judge on that basis, so long 

as the applicant has received the notice 

required by section 208(d)(4)(A) of the 

Act. For applications referred to an 

immigration judge, an asylum officer’s 

determination that an application is 

frivolous will not render an applicant 

permanently ineligible for immigration 

benefits unless an immigration judge or 

the Board makes a finding of 

frivolousness as described in paragraph 

(c) of this section. 

(c) For applications filed on or after 

January 11, 2021, an asylum application 

is frivolous if it: 

(1) Contains a fabricated material 

element; 

(2) Is premised upon false or 

fabricated evidence unless the 

application would have been granted 

without the false or fabricated evidence; 

(3) Is filed without regard to the 

merits of the claim; or 

(4) Is clearly foreclosed by applicable 

law. 

(d) If the alien has been provided the 

warning required by section 

208(d)(4)(A) of the Act, he or she need 

not be given any additional or further 

opportunity to account for any issues 

with his or her claim prior to the entry 

of a frivolousness finding. 

(e) An asylum application may be 

found frivolous even if it was untimely 

filed. 

(f) A withdrawn asylum application 

may be found frivolous unless: 


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(1) The alien wholly disclaims the 

application and withdraws it with 

prejudice; 

(2) The alien is eligible for and agrees 

to accept voluntary departure for a 

period of no more than 30 days 

pursuant to section 240B(a) of the Act; 

(3) The alien withdraws any and all 

other applications for relief or 

protection with prejudice; and 

(4) The alien waives his right to 

appeal and any rights to file, for any 

reason, a motion to reopen or 

reconsider. 

(g) For purposes of this section, a 

finding that an alien filed a knowingly 

frivolous asylum application shall not 

preclude the alien from seeking 

withholding of removal under section 

241(b)(3) of the Act or protection under 

the regulations issued pursuant to the 

Convention Against Torture’s 

implementing legislation. 

■ 30. Add § 1208.25 to read as follows: 

§ 1208.25 Severability. 

The provisions of part 1208 are 

separate and severable from one 

another. In the event that any provision 

in part 1208 is stayed, enjoined, not 

implemented, or otherwise held invalid, 

the remaining provisions shall 

nevertheless be implemented as an 

independent rule and continue in effect. 

■ 31. Amend § 1208.30 by revising the 

section heading and paragraphs (a), (b) 

introductory text, (b)(2), (e), and (g) to 

read as follows: 

§ 1208.30 Credible fear of persecution, 

reasonable possibility of persecution, and 

reasonable possibility of torture 

determinations involving stowaways and 

applicants for admission who are found 

inadmissible pursuant to section 

212(a)(6)(C) or 212(a)(7) of the Act or whose 

entry is limited or suspended under section 

212(f) or 215(a)(1) of the Act, or who failed 

to apply for protection from persecution in 

a third country where potential relief is 

available while en route to the United 

States. 

(a) Jurisdiction. The provisions of this 

subpart B apply to aliens subject to 

sections 235(a)(2) and 235(b)(1) of the 

Act. Pursuant to section 235(b)(1)(B) 

and 8 CFR 208.30, DHS has exclusive 

jurisdiction to make fear 

determinations, and the immigration 

judges have exclusive jurisdiction to 

review such determinations. Except as 

otherwise provided in this subpart B, 

paragraphs (b) through (g) of this section 

and 8 CFR 208.30 are the exclusive 

procedures applicable to stowaways and 

applicants for admission who are found 

inadmissible pursuant to section 

212(a)(6)(C) or 212(a)(7) of the Act and 

who receive fear interviews, 

determinations, and reviews under 

section 235(b)(1)(B) of the Act and 8 

CFR 208.30. Prior to January 1, 2030, an 

alien physically present in or arriving in 

the Commonwealth of the Northern 

Mariana Islands is ineligible to apply for 

asylum and may only establish 

eligibility for withholding of removal 

pursuant to section 241(b)(3) of the Act 

or withholding or deferral of removal 

under the regulations issued pursuant to 

the Convention Against Torture’s 

implementing legislation. 

(b) Treatment of dependents. A 

spouse or child of an alien may be 

included in that alien’s fear evaluation 

and determination, if such spouse or 

child: 

* * * * * 

(2) Desires to be included in the 

principal alien’s determination. 

However, any alien may have his or her 

evaluation and determination made 

separately, if he or she expresses such 

a desire. 

* * * * * 

(e) Determination. For the standards 

and procedures for asylum officers in 

conducting credible fear of persecution, 

reasonable possibility of persecution, 

and reasonable possibility of torture 

interviews and in making positive and 

negative fear determinations, see 8 CFR 

208.30. The immigration judges will 

review such determinations as provided 

in paragraph (g) of this section and 8 

CFR 1003.42. 

* * * * * 

(g) Procedures for negative fear 

determinations—(1) Review by 

immigration judge of a mandatory bar 

finding. (i) If the alien is determined to 

be an alien described in 8 CFR 

208.13(c)(3) or 8 CFR 1208.13(c)(3) and 

is determined to lack a credible fear of 

persecution or a reasonable possibility 

of persecution or torture under 8 CFR 

208.30(e)(5)(ii), the immigration judge 

shall first review de novo the 

determination that the alien is described 

in 8 CFR 208.13(c)(3) or 8 CFR 

1208.13(c)(3). If the immigration judge 

finds that the alien is not described in 

8 CFR 208.13(c)(3) or 8 CFR 

1208.13(c)(3), then the immigration 

judge shall vacate the determination of 

the asylum officer, and DHS may 

commence asylum-and-withholdingonly proceedings under 8 CFR 

1208.2(c)(1). If the immigration judge 

concurs with the determination that the 

alien is an alien described in 8 CFR 

208.13(c)(3) or 8 CFR 1208.13(c)(3), the 

immigration judge will then review the 

asylum officer’s negative determinations 

regarding credible fear and regarding 

reasonable possibility made under 8 

CFR 208.30(e)(5)(iv) consistent with 

paragraph (g)(2) of this section, except 

that the immigration judge will review 

the fear of persecution or torture 

findings under the reasonable 

possibility standard instead of the 

credible fear (‘‘significant possibility’’) 

standard described in paragraph (g)(2). 

(ii) If the alien is determined to be an 

alien described as ineligible for asylum 

in 8 CFR 208.13(c)(4) or 8 CFR 

1208.13(c)(4) and is determined to lack 

a reasonable possibility of persecution 

or torture under 8 CFR 208.30(e)(5)(v), 

the immigration judge shall first review 

de novo the determination that the alien 

is described as ineligible for asylum in 

8 CFR 208.13(c)(4) or 8 CFR 

1208.13(c)(4). If the immigration judge 

finds that the alien is not described as 

ineligible for asylum in 8 CFR 

208.13(c)(4) or 8 CFR 1208.13(c)(4), then 

the immigration judge shall vacate the 

determination of the asylum officer, and 

DHS may commence asylum-andwithholding-only proceedings under 8 

CFR 1208.2(c)(1). If the immigration 

judge concurs with the determination 

that the alien is an alien described as 

ineligible for asylum in 8 CFR 

208.13(c)(4) or 8 CFR 1208.13(c)(4), the 

immigration judge will then review the 

asylum officer’s negative decision 

regarding reasonable possibility made 

under 8 CFR 208.30(e)(5)(v) consistent 

with paragraph (g)(2) of this section, 

except that the immigration judge will 

review the fear of persecution or torture 

findings under the reasonable 

possibility standard instead of the 

credible fear of persecution standard 

described in paragraph (g)(2). 

(2) Review by immigration judge of a 

negative fear finding. (i) The asylum 

officer’s negative decision regarding a 

credible fear of persecution, reasonable 

possibility of persecution, and 

reasonable possibility of torture shall be 

subject to review by an immigration 

judge upon the applicant’s request, in 

accordance with section 

235(b)(1)(B)(iii)(III) of the Act. If the 

alien refuses to make an indication, 

DHS will consider such a response as a 

decision to decline review. 

(ii) The record of the negative fear 

determination, including copies of the 

Notice of Referral to Immigration Judge, 

the asylum officer’s notes, the summary 

of the material facts, and other materials 

upon which the determination was 

based shall be provided to the 

immigration judge with the negative fear 

determination. 

(iii) A fear hearing will be closed to 

the public unless the alien states for the 

record or submits a written statement 

that the alien is waiving that 

requirement; in that event the hearing 

shall be open to the public, subject to 


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the immigration judge’s discretion as 

provided in 8 CFR 1003.27. 

(iv) Upon review of the asylum 

officer’s negative fear determinations: 

(A) If the immigration judge concurs 

with the determination of the asylum 

officer that the alien has not established 

a credible fear of persecution, 

reasonable possibility of persecution, or 

reasonable possibility of torture, the 

case shall be returned to DHS for 

removal of the alien. The immigration 

judge’s decision is final and may not be 

appealed. 

(B) If the immigration judge finds that 

the alien, other than an alien stowaway, 

establishes a credible fear of 

persecution, reasonable possibility of 

persecution, or reasonable possibility of 

torture, the immigration judge shall 

vacate the Notice and Order of 

Expedited Removal, and DHS may 

commence asylum-and-withholdingonly proceedings under 8 CFR 

1208.2(c)(1), during which time the 

alien may file an application for asylum 

and for withholding of removal in 

accordance with 8 CFR 1208.4(b)(3)(i). 

Such application shall be considered de 

novo in all respects by an immigration 

judge regardless of any determination 

made under this paragraph. 

(C) If the immigration judge finds that 

an alien stowaway establishes a credible 

fear of persecution, reasonable 

possibility of torture, or reasonable 

possibility of torture, the alien shall be 

allowed to file an application for asylum 

and for withholding of removal before 

the immigration judge in accordance 

with 8 CFR 1208.4(b)(3)(iii). The 

immigration judge shall decide the 

application as provided in that section. 

Such application shall be considered de 

novo in all respects by an immigration 

judge regardless of any determination 

made under this paragraph. Such 

decision on that application may be 

appealed by either the stowaway or DHS 

to the Board of Immigration Appeals. If 

a denial of the application for asylum 

and for withholding of removal becomes 

final, and deferral of removal has not 

otherwise been granted pursuant to 8 

CFR 1208.17(a), the alien shall be 

removed from the United States in 

accordance with section 235(a)(2) of the 

Act. If an approval of the application for 

asylum, withholding of removal, or, as 

pertinent, deferral of removal becomes 

final, DHS shall terminate removal 

proceedings under section 235(a)(2) of 

the Act. 

■ 32. Amend § 1208.31 by revising 

paragraphs (f) and (g) to read as follows: 

§ 1208.31 Reasonable fear of persecution 

or torture determinations involving aliens 

ordered removed under section 238(b) of 

the Act and aliens whose removal is 

reinstated under section 241(a)(5) of the 

Act. 

* * * * * 

(f) Removal of aliens with no 

reasonable fear of persecution or 

torture. If the asylum officer determines 

that the alien has not established a 

reasonable fear of persecution or torture, 

the asylum officer shall inform the alien 

in writing of the decision and shall 

inquire whether the alien wishes to 

have an immigration judge review the 

negative decision, using the Record of 

Negative Reasonable Fear Finding and 

Request for Review by Immigration 

Judge, on which the alien must indicate 

whether he or she desires such review. 

If the alien refuses to make an 

indication, DHS shall consider such a 

response as a decision to decline 

review. 

(g) Review by Immigration Judge. The 

asylum officer’s negative decision 

regarding reasonable fear shall be 

subject to review by an immigration 

judge upon the alien’s request. If the 

alien requests such review, the asylum 

officer shall serve him or her with a 

Notice of Referral to the Immigration 

Judge. The record of determination, 

including copies of the Notice of 

Referral to the Immigration Judge, the 

asylum officer’s notes, the summary of 

the material facts, and other materials 

upon which the determination was 

based shall be provided to the 

immigration judge with the negative 

determination. In the absence of 

exceptional circumstances, such review 

shall be conducted by the immigration 

judge within 10 days of the filing of the 

Notice of Referral to the Immigration 

Judge with the immigration court. Upon 

review of the asylum officer’s negative 

reasonable fear determination: 

(1) If the immigration judge concurs 

with the asylum officer’s determination 

that the alien does not have a reasonable 

fear of persecution or torture, the case 

shall be returned to DHS for removal of 

the alien. No appeal shall lie from the 

immigration judge’s decision. 

(2) If the immigration judge finds that 

the alien has a reasonable fear of 

persecution or torture, the alien may 

submit an Application for Asylum and 

for Withholding of Removal. Such 

application shall be considered de novo 

in all respects by an immigration judge 

regardless of any determination made 

under this paragraph. 

(i) The immigration judge shall 

consider only the alien’s application for 

withholding of removal under 8 CFR 

1208.16 and shall determine whether 

the alien’s removal to the country of 

removal must be withheld or deferred. 

(ii) Appeal of the immigration judge’s 

decision whether removal must be 

withheld or deferred lies with the Board 

of Immigration Appeals. If the alien or 

DHS appeals the immigration judge’s 

decision, the Board shall review only 

the immigration judge’s decision 

regarding the alien’s eligibility for 

withholding or deferral of removal 

under 8 CFR 1208.16. 

PART 1212—DOCUMENTARY 

REQUIREMENTS: NONIMMIGRANTS; 

WAIVERS; ADMISSION OF CERTAIN 

INADMISSIBLE ALIENS; PAROLE 

■ 33. The authority citation for part 

1212 continues to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1102, 

1103, 1182 and note, 1184, 1187, 1223, 1225, 

1226, 1227, 1255; 8 U.S.C. 1185 note (section 

7209 of Public Law 108–458); Title VII of 

Public Law 110–229. 

■ 34. Add § 1212.13 to read as follows: 

§ 1212.13 Severability. 

The provisions of part 1212 are 

separate and severable from one 

another. In the event that any provision 

in part 1212 is stayed, enjoined, not 

implemented, or otherwise held invalid, 

the remaining provisions shall 

nevertheless be implemented as an 

independent rule and continue in effect. 

§ 1212.14 [Amended] 

■ 35. Amend § 1212.14 in paragraph 

(a)(1)(vii) by removing the words 

‘‘§ 1235.3 of this chapter’’ and adding in 

their place the words ‘‘§ 235.3 of chapter 

I’’. 

PART 1235—INSPECTION OF 

PERSONS APPLYING FOR ADMISSION 

■ 36. The authority citation for part 

1235 continues to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1103, 

1183, 1185 (pursuant to E.O. 13323, 69 FR 

241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 

1225, 1226, 1228, 1365a note, 1379, 1731–32; 

Title VII of Public Law 110–229; 8 U.S.C. 

1185 note (section 7209 of Public Law 108– 

458). 

§§ 1235.1, 1235.2, 1235.3, and 1235.5 

[Removed and Reserved] 

■ 37. Remove and reserve §§ 1235.1, 

1235.2, 1235.3, and 1235.5. 

■ 38. Amend § 1235.6 by: 

■ a. Removing paragraphs (a)(1)(ii) and 

(iii); 

■ b. Redesignating paragraph (a)(1)(iv) 

as paragraph (a)(1)(ii) and revising it; 

■ c. Revising paragraphs (a)(2)(ii) and 

(iii); and 

■ d. Adding paragraph (c). 


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The revisions and addition read as 

follows: 

§ 1235.6 Referral to immigration judge. 

(a) * * * 

(1) * * * 

(ii) If an immigration officer verifies 

that an alien subject to expedited 

removal under section 235(b)(1) of the 

Act has been admitted as a lawful 

permanent resident or refugee, or 

granted asylum, or, upon review 

pursuant to § 235.3(b)(5)(iv) of chapter I, 

an immigration judge determines that 

the alien was once so admitted or 

granted asylum, provided that such 

status has not been terminated by final 

administrative action, and DHS initiates 

removal proceedings against the alien 

under section 240 of the Act. 

* * * * * 

(2) * * * 

(i) If an asylum officer determines that 

an alien does not have a credible fear of 

persecution, reasonable possibility of 

persecution, or reasonable possibility of 

torture, and the alien requests a review 

of that determination by an immigration 

judge; or 

* * * * * 

(iii) If an immigration officer refers an 

applicant in accordance with the 

provisions of § 208.30 or § 208.31. 

* * * * * 

(c) The provisions of part 1235 are 

separate and severable from one 

another. In the event that any provision 

in part 1235 is stayed, enjoined, not 

implemented, or otherwise held invalid, 

the remaining provisions shall 

nevertheless be implemented as an 

independent rule and continue in effect. 

PART 1244—TEMPORARY 

PROTECTED STATUS FOR 

NATIONALS OF DESIGNATED STATES 

■ 39. The authority citation for part 

1244 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1254, 1254a 

note, 8 CFR part 2. 

■ 40. Amend § 1244.4 by revising 

paragraph (b) to read as follows: 

§ 1244.4 Ineligible aliens. 

* * * * * 

(b) Is an alien described in section 

208(b)(2)(A) of the Act. 

Chad R. Mizelle, 

Senior Official Performing the Duties of the 

General Counsel, U.S. Department of 

Homeland Security. 

Dated: December 2, 2020. 

William P. Barr, 

Attorney General. 

[FR Doc. 2020–26875 Filed 12–10–20; 8:45 am] 

BILLING CODE 4410–30–P; 9111–97–P 


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