[Federal Register Volume 85, Number 239 (Friday, December 11, 2020)]
[Rules and Regulations]
[Pages 80274-80401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26875]



[[Page 80273]]

Vol. 85

Friday,

No. 239

December 11, 2020

Part III





Department of Homeland Security





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8 CFR Parts 208 and 235





Department of Justice





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Executive Office for Immigration Review





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8 CFR Parts 1003, 1208, and 1235





Procedures for Asylum and Withholding of Removal; Credible Fear and 
Reasonable Fear Review; Final Rule

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

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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.

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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.
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    \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.
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    This final rule makes thirteen non-substantive 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

[[Page 80275]]

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.
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    \2\ The 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.
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    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).
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    \3\ See 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.
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    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-
unique-issues 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

[[Page 80276]]

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-and-withholding-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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    \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.

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[[Page 80277]]

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 torture-related 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.

[[Page 80278]]

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

[[Page 80279]]

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.
---------------------------------------------------------------------------

    \5\ On 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 amendments that would implement the rules at issue in 
the aforementioned cases.
---------------------------------------------------------------------------

    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

[[Page 80280]]

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.

[[Page 80281]]

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 non-
exhaustive 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 government-sponsored actor, internal relocation would be 
reasonable unless the applicant demonstrates by a

[[Page 80282]]

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\
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    \6\ Because 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).
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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).
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    \7\ The 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).
    \8\ The 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).
    \9\ The 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).
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    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

[[Page 80283]]

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.
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    \10\ As 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 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-restrictions-people-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-Immigration-Lawyers.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.
---------------------------------------------------------------------------

    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 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; 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 cross-reference 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

[[Page 80284]]

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 non-government 
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.
---------------------------------------------------------------------------

    \11\ For similar reasons, the NPRM cannot--and does not--alter 
the general availability of withholding of removal under the Act or 
protection under the CAT.
---------------------------------------------------------------------------

    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

[[Page 80285]]

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).
---------------------------------------------------------------------------

    \12\ Asylum 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).
---------------------------------------------------------------------------

    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.

[[Page 80286]]

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-and-withholding-
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'' 
domestic-violence-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-sheet-2019.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

[[Page 80287]]

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' long-standing commitment to assisting 
refugees and asylees from around the world.
---------------------------------------------------------------------------

    \13\ See infra Section II.C.6.8 for further discussion on this 
point.
---------------------------------------------------------------------------

    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 non-
refoulement 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 long-
standing 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 society-specific 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

[[Page 80288]]

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-withholding-only proceedings. This is consistent with the 
statutory language that the

[[Page 80289]]

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).
---------------------------------------------------------------------------

    \14\ The 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)).
---------------------------------------------------------------------------

    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-and-withholding-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-withholding-only proceedings.
---------------------------------------------------------------------------

    \15\ The 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).
---------------------------------------------------------------------------

    Regarding commenters' concerns about due process in asylum-and-
withholding-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-and-withholding-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-and-withholding-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-withholding-only 
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-and-
withholding-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-and-
withholding-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 non-permanent 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).
---------------------------------------------------------------------------

    \16\ The 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).
---------------------------------------------------------------------------

    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

[[Page 80290]]

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 well-settled 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-and-
withholding 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).
---------------------------------------------------------------------------

    \17\ Even 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.
---------------------------------------------------------------------------

    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

[[Page 80291]]

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-of-law provision in this 
context is fully consistent with the Board's long-standing 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 Torture-Related 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

[[Page 80292]]

``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 
fact-specific 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 asylum-related 
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

[[Page 80293]]

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).
---------------------------------------------------------------------------

    \18\ Commenters 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.
---------------------------------------------------------------------------

    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 non-meritorious 
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

[[Page 80294]]

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.
---------------------------------------------------------------------------

    \19\ The 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.
---------------------------------------------------------------------------

    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

[[Page 80295]]

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-and-withholding-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

[[Page 80296]]

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%20document%20for%20asylum%20screenings.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-to-justice/articles/1282494/planned-asylum-overhaul-threatens-migrants-due-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 non-adversarial proceedings before a DHS 
officer would not be granted important procedural protections. One 
organization cited both the U.S. Court of

[[Page 80297]]

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\
---------------------------------------------------------------------------

    \20\ Although 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)).
---------------------------------------------------------------------------

    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 non-adversarial 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

[[Page 80298]]

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

[[Page 80299]]

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. Caraballo-Rodriguez, 
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.'').
---------------------------------------------------------------------------

    \21\ The 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \22\ As 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.
---------------------------------------------------------------------------

    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.

[[Page 80300]]

    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.'').
---------------------------------------------------------------------------

    \23\ See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) (setting 
out requirements for motions to reopen due to ineffective assistance 
of counsel allegations).
    \24\ The 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'').
---------------------------------------------------------------------------

    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

[[Page 80301]]

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,

[[Page 80302]]

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.
---------------------------------------------------------------------------

    \25\ For further discussion of the intersection of the rule and 
the TVPRA, see section II.C.6.10.
---------------------------------------------------------------------------

    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 non-substantive 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.
---------------------------------------------------------------------------

    \26\ This 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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \27\ The 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.
    \28\ The 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/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.

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[[Page 80303]]

    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

[[Page 80304]]

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\
---------------------------------------------------------------------------

    \29\ Nevertheless, 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).
    \30\ The 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.
---------------------------------------------------------------------------

    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 Sec.  1208.14 or Sec.  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.
---------------------------------------------------------------------------

    \31\ The 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).
---------------------------------------------------------------------------

    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.'').

[[Page 80305]]

    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

[[Page 80306]]

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/i-589instr.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-procedures-criteria-determining-refugee-status-under-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

[[Page 80307]]

Departments disagree that a minimum ``working period'' before which an 
application may not be pretermitted is needed.
---------------------------------------------------------------------------

    \32\ Many 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 
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.
---------------------------------------------------------------------------

    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 
non-detained 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\
---------------------------------------------------------------------------

    \33\ Commenters 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \34\ Although 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.
---------------------------------------------------------------------------

    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 EOIR \35\ 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)).
---------------------------------------------------------------------------

    \35\ EOIR, 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)
    \36\ EOIR, 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).
---------------------------------------------------------------------------

    Comment: Commenters also alleged that the pretermission of asylum 
applications is incompatible with federally established pleading 
standards

[[Page 80308]]

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/EthicsandProfessionalismGuideforIJs.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-review-announces-case-completion-numbers-fiscal-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

[[Page 80309]]

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.
---------------------------------------------------------------------------

    \37\ 85 FR 38532, 39547.
    \38\ Casa de Maryland v. Wolf, No. 8:20-cv-02118-PX, 2020 WL 
5500165, (D. Md. Sept. 11, 2020) (order granting preliminary 
injunction).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \39\ The 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.
---------------------------------------------------------------------------

    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

[[Page 80310]]

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\
---------------------------------------------------------------------------

    \40\ As 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.
---------------------------------------------------------------------------

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 macro-level 
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.

[[Page 80311]]

    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 self-certified 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

[[Page 80312]]

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-
social-group 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)).
---------------------------------------------------------------------------

    \41\ One 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.
---------------------------------------------------------------------------

    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-by-
case 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

[[Page 80313]]

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 open-
ended. 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\
---------------------------------------------------------------------------

    \42\ One 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.'').
---------------------------------------------------------------------------

    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); Delgado-Ortiz 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 re-evaluation 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-by-case'' adjudication of particular-social-group 
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

[[Page 80314]]

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/press-release/file/1012271/download (in contrast 
with issuing informal ``guidance documents,'' ``notice-and-comment 
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 well-established 
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

[[Page 80315]]

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

[[Page 80316]]

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 pre-
Matter 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.
---------------------------------------------------------------------------

    \43\ Asylum 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.
---------------------------------------------------------------------------

    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

[[Page 80317]]

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 particular-social-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.

[[Page 80318]]

    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/EthicsandProfessionalismGuideforIJs.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.
---------------------------------------------------------------------------

    \44\ The 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).
---------------------------------------------------------------------------

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-,

[[Page 80319]]

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 well-established 
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); Crespin-Valladares 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

[[Page 80320]]

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.'').
---------------------------------------------------------------------------

    \45\ Although 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.
---------------------------------------------------------------------------

    The Departments believe that this rule--which establishes that 
particular-social-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 
particular-social-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 non-state 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 
society- specific nature of this determination.''

[[Page 80321]]

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 well-established 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 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.'').
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

[[Page 80322]]

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\
---------------------------------------------------------------------------

    \46\ Regarding 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.
---------------------------------------------------------------------------

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,'' Mu[ntilde]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

[[Page 80323]]

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).
---------------------------------------------------------------------------

    \47\ The 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.
---------------------------------------------------------------------------

    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 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 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 well-established 
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, Merriam-Webster, https://www.merriam-webster.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 terrorism-related 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 terrorism-based particular social groups, generally 
disfavoring such groups is consistent with this Congressional intent.
---------------------------------------------------------------------------

    \48\ The 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.
---------------------------------------------------------------------------

    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

[[Page 80324]]

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 non-cognizable 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 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.''). 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 fact- and 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

[[Page 80325]]

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 non-state 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

[[Page 80326]]

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.
---------------------------------------------------------------------------

    \49\ As 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.
---------------------------------------------------------------------------

    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 Aguirre-Aguirre, 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

[[Page 80327]]

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 well-established 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.
---------------------------------------------------------------------------

    \50\ Moreover, 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.
---------------------------------------------------------------------------

    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 Quijano-Rodriguez 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

[[Page 80328]]

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 case-by-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\
---------------------------------------------------------------------------

    \51\ Specifically 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.
---------------------------------------------------------------------------

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 real-world 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,

[[Page 80329]]

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-by-case 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.''); 
Diaz-Reynoso 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

[[Page 80330]]

well-established statutory authority and relevant case law; thus, it 
does not ``re-write'' 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''); Amilcar-Orellana 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''); 
Molina-Morales 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

[[Page 80331]]

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 non-protected 
personal concern.\52\ Accordingly, commenters' suggestion that each 
persecutor will have a ``free pass'' is also incorrect.\53\
---------------------------------------------------------------------------

    \52\ The 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.
    \53\ Further, 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.
---------------------------------------------------------------------------

    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 fact-
intensive 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 quasi-governments, 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

[[Page 80332]]

speculative, especially due to the fact-intensive, 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 non-state 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

[[Page 80333]]

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.
---------------------------------------------------------------------------

    \54\ The 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).
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------

    \55\ For 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).

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 gender-based 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 gender-based 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.

[[Page 80334]]

    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-by-case 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 so-called ``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

[[Page 80335]]

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\
---------------------------------------------------------------------------

    \56\ The 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.
---------------------------------------------------------------------------

    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 well-founded 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

[[Page 80336]]

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.
---------------------------------------------------------------------------

    \57\ The Departments respond to allegations of failure to engage 
in reasoned decision making below in section II.C.6.2.
---------------------------------------------------------------------------

    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

[[Page 80337]]

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-race-policy.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 non-probative 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-rights-practices/
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

[[Page 80338]]

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\
---------------------------------------------------------------------------

    \58\ The 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).
---------------------------------------------------------------------------

    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-by-case 
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 non-governmental 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

[[Page 80339]]

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); Cardoza-Fonseca, 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

[[Page 80340]]

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-by-case 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 government-sponsored 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 non-governmental 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

[[Page 80341]]

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 Sec.  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

[[Page 80342]]

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

[[Page 80343]]

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\
---------------------------------------------------------------------------

    \59\ The 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).
---------------------------------------------------------------------------

    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,''

[[Page 80344]]

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. Cardoza-Fonseca, 
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.
---------------------------------------------------------------------------

    \60\ Commenters 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).
    \61\ For 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.
---------------------------------------------------------------------------

    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.'').
---------------------------------------------------------------------------

    \62\ Commenters 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).
---------------------------------------------------------------------------

    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

[[Page 80345]]

Sec.  1158(b)(1)(A)'' is broader than ``his discretion to prescribe 
criteria for eligibility for asylum'' under Sec.  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 Cardoza-Fonseca, 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\
---------------------------------------------------------------------------

    \63\ Such entry would remain a significant adverse discretionary 
factor for any adults traveling with the minor, however.
---------------------------------------------------------------------------

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,

[[Page 80346]]

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 race-neutral 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

[[Page 80347]]

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 well-recognized 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 non-meritorious 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-pandemic-restrictions-people-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, 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/wp-content/uploads/2019/11/Mexican-Asylum-FAQ-for-US-Immigration-Lawyers.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/crime-in-the-u.s.-2018/topic-pages/offenses-known-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

[[Page 80348]]

Finished, but Baltimore Still Bleeds, Wall St. J. (Feb. 7, 2020), 
https://www.wsj.com/articles/the-wire-is-finished-but-baltimore-still-bleeds-11581119104. 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 Sec.  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' Sec.  
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

[[Page 80349]]

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-you-secure-the-border-when-most-migrants-are-just-turning-themselves-in/article_deed8d48-fa50-11e8-837c-0b4b3be5a42a.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

[[Page 80350]]

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 re-evaluation 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

[[Page 80351]]

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/fact-sheet-dhs-measures-border-limit-further-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

[[Page 80352]]

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-relating-status-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/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/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_factsheet-northern-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

[[Page 80353]]

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 Sec.  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 case-by-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 
case-by-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

[[Page 80354]]

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 one-year 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 one-year 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

[[Page 80355]]

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 one-year 
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.
---------------------------------------------------------------------------

    \64\ See supra Section II.C.1.3 for further discussion on 
vulnerable populations.
---------------------------------------------------------------------------

    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 one-year 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.
---------------------------------------------------------------------------

    \65\ For example, an alien may establish ineffective assistance 
of counsel as an extraordinary circumstance to excuse a failure to 
meet the one-year 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).
---------------------------------------------------------------------------

    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

[[Page 80356]]

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 one-year time bar on asylum applications violates 
international law.
---------------------------------------------------------------------------

    \66\ See 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.
---------------------------------------------------------------------------

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

[[Page 80357]]

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/help-available-at-irsgov-in-different-languages-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/free-tax-return-preparation-for-qualifying-taxpayers (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.

[[Page 80358]]

    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. Lopez-Mendoza, 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 non-discretionary 
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

[[Page 80359]]

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.
---------------------------------------------------------------------------

    \67\ An 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-
abuse-prevention-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.
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    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

[[Page 80360]]

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-or-
exceptional-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 well-established precedent. Commenters asserted that the 
proposed discretionary factor should be considered on a case-by-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

[[Page 80361]]

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.

[[Page 80362]]

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

[[Page 80363]]

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).
---------------------------------------------------------------------------

    \68\ The 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.
---------------------------------------------------------------------------

    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-by-case 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)).
---------------------------------------------------------------------------

    \69\ Although 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. Sec.  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)).
    \70\ The 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.
    \71\ As 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).
---------------------------------------------------------------------------

    In interpreting the statutory language, the Departments considered 
the history

[[Page 80364]]

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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-immigrant-population-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\
---------------------------------------------------------------------------

    \73\ By 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.
    \74\ An 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.
---------------------------------------------------------------------------

    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

[[Page 80365]]

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 well-founded 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.
---------------------------------------------------------------------------

    \75\ The 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.
---------------------------------------------------------------------------

    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 well-established 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 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.'' (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

[[Page 80366]]

child can establish that he or she could not have derived any permanent 
legal immigration status or any non-permanent 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).
---------------------------------------------------------------------------

    \76\ The 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-and-asylum/asylum/minor-children-applying-for-asylum-by-themselves.
---------------------------------------------------------------------------

    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/refugee-processing-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

[[Page 80367]]

``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[hyphen]Valdez v. Yates, 846 F.3d 806, 812-13 (5th 
Cir. 2017) (finding that the public official in question need not be 
high[hyphen]level or follow ``an officially sanctioned state action''); 
Garcia v. Holder, 756 F.3d 885, 891-92 (5th Cir. 2014); 
Ramirez[hyphen]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[hyphen]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 Ramirez-Peyro, 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 low-level 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 Xochihua-Jaimes 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\
---------------------------------------------------------------------------

    \77\ To 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.
---------------------------------------------------------------------------

    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), 
Romero-Donado 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); Lozano-Zuniga 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 ``near-universal 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.

[[Page 80368]]

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).
---------------------------------------------------------------------------

    \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.'').
---------------------------------------------------------------------------

    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

[[Page 80369]]

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

[[Page 80370]]

(``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

[[Page 80371]]

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 asylum-and-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

[[Page 80372]]

``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).
---------------------------------------------------------------------------

    \79\ For 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \80\ The 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.
---------------------------------------------------------------------------

    The Departments also disagree with commenters' claim that the 
Departments purposefully separated their asylum-related 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

[[Page 80373]]

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

[[Page 80374]]

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

[[Page 80375]]

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \82\ The 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \83\ The 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.
---------------------------------------------------------------------------

    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 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).
    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

[[Page 80376]]

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 ``re-orients 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.
---------------------------------------------------------------------------

    \84\ The 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.'').
---------------------------------------------------------------------------

    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 Martinez-Lopez 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

[[Page 80377]]

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 non-child 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 Non-
Refoulement 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 non-refoulement 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.
---------------------------------------------------------------------------

    \85\ The 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.
---------------------------------------------------------------------------

    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,

[[Page 80378]]

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-by-case 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.

[[Page 80379]]

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, UAC \86\ 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.
---------------------------------------------------------------------------

    \86\ UAC 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).
---------------------------------------------------------------------------

    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-for-asylum-by-themselves.
---------------------------------------------------------------------------

    \87\ As 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.
---------------------------------------------------------------------------

    Finally, the Departments note that, for UAC who are not eligible 
for asylum

[[Page 80380]]

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

[[Page 80381]]

applying that existing authority to pending cases independently of the 
prospective application of the rule.\89\
---------------------------------------------------------------------------

    \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.
    \89\ For 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.
---------------------------------------------------------------------------

    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 senate-confirmed 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

[[Page 80382]]

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\
---------------------------------------------------------------------------

    \90\ Mr. 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.
    \91\ On 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.
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \92\ On 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.
---------------------------------------------------------------------------

    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

[[Page 80383]]

Judges, sec. VIII (Jan. 26, 2011), https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.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 foreign-based 
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

[[Page 80384]]

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.

[[Page 80385]]

    (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.
---------------------------------------------------------------------------

    \93\ This 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).
---------------------------------------------------------------------------

    (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\
---------------------------------------------------------------------------

    \94\ This 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.
---------------------------------------------------------------------------

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

0
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.


0
2. Amend Sec.  208.1 by adding paragraphs (c) through (g) to read as 
follows:


Sec.  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

[[Page 80386]]

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.

0
3. Amend Sec.  208.2 by adding paragraph (c)(1)(ix) to read as follows:


Sec.  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 Sec. Sec.  208.30, 1003.42, or 1208.30.
* * * * *

0
4. Amend Sec.  208.5 by revising the first sentence of paragraph (a) to 
read as follows:


Sec.  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. * * *
* * * * *

0
5. Amend Sec.  208.6 by revising paragraphs (a) and (b) and adding 
paragraphs (d) and (e) to read as follows:


Sec.  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 
Sec.  208.30, and records pertaining to any reasonable fear 
determination conducted pursuant to Sec.  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

[[Page 80387]]

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.

0
6. Amend Sec.  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:


Sec.  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 
government-sponsored, 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 
government-sponsored 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:

[[Page 80388]]

    (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 Sec.  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.

0
7. Revise Sec.  208.15 to read as follows:


Sec.  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.

0
8. Amend Sec.  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:


Sec.  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 
government-sponsored, 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

[[Page 80389]]

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 government-sponsored absent evidence that the 
government sponsored the persecution.
* * * * *

0
9. Amend Sec.  208.18 by revising paragraphs (a)(1) and (7) to read as 
follows:


Sec.  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.
* * * * *

0
10. Revise Sec.  208.20 to read as follows:


Sec.  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.

0
11. Add Sec.  208.25 to read as follows:


Sec.  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.

0
12. Amend Sec.  208.30 by:
0
a. Revising the section heading; and
0
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,

[[Page 80390]]

(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:


Sec.  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.

[[Page 80391]]

    (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-
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 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-
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 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

[[Page 80392]]

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 Sec.  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.

0
13. Amend Sec.  208.31 by revising paragraphs (f) and (g) to read as 
follows:


Sec.  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

[[Page 80393]]

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

0
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.


0
15. Amend Sec.  235.6 by revising paragraphs (a)(1)(ii) and (a)(2)(i) 
and (iii) and adding paragraph (c) to read as follows:


Sec.  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 Sec.  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

0
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.


0
17. Amend Sec.  1003.1 by revising paragraph (b)(9) to read as follows:


Sec.  1003.1  Organization, jurisdiction, and powers of the Board of 
Immigration Appeals.

* * * * *
    (b) * * *
    (9) Decisions of Immigration Judges in asylum proceedings pursuant 
to Sec.  1208.2(b) and (c) of this chapter.
* * * * *

0
18. Amend Sec.  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:


Sec.  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

[[Page 80394]]

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

0
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.


0
20. Amend Sec.  1208.1 by adding paragraphs (c) through (g) to read as 
follows:


Sec.  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

[[Page 80395]]

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.

0
21. Amend Sec.  1208.2 by adding paragraph (c)(1)(ix) to read as 
follows:


Sec.  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 Sec.  208.30, Sec.  1003.42, or Sec.  
1208.30.
* * * * *

0
22. Amend Sec.  1208.5 by revising the first sentence of paragraph (a) 
to read as follows:


Sec.  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. * * *
* * * * *

0
23. Amend Sec.  1208.6 by revising paragraphs (a) and (b) and adding 
paragraphs (d) and (e) to read as follows:


Sec.  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 
Sec.  208.30, and records pertaining to any reasonable fear 
determination conducted pursuant to Sec.  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;

[[Page 80396]]

    (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.

0
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:


Sec.  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 
government-sponsored, 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 
government-sponsored 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

[[Page 80397]]

Cruel, Inhuman or Degrading Treatment or Punishment;
    (C) Would otherwise be subject to Sec.  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.


Sec.  1208.14  [Amended]

0
25. Amend Sec.  1208.14 by
0
a. Removing the words ``Sec.  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 ``Sec.  235.3(b) of chapter I''; and
0
b. Removing the citations ``Sec.  1208.30'' and ``Sec.  1208.30(b)'' in 
paragraph (c)(4)(ii)(A) and adding in their place the words ``Sec.  
208.30 of chapter I''.

0
26. Revise Sec.  1208.15 to read as follows:


Sec.  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 non-permanent but indefinitely 
renewable legal immigration status (including asylee, refugee, or 
similar status but

[[Page 80398]]

excluding status such as of a tourist) from the alien's parent.

0
27. Amend Sec.  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:


Sec.  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 
government-sponsored, 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.
* * * * *

0
28. Amend Sec.  1208.18 by revising paragraphs (a)(1) and (7) to read 
as follows:


Sec.  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.
* * * * *

0
29. Revise Sec.  1208.20 to read as follows:


Sec.  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:

[[Page 80399]]

    (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.

0
30. Add Sec.  1208.25 to read as follows:


Sec.  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.

0
31. Amend Sec.  1208.30 by revising the section heading and paragraphs 
(a), (b) introductory text, (b)(2), (e), and (g) to read as follows:


Sec.  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-withholding-only 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-and-withholding-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

[[Page 80400]]

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-withholding-only 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.

0
32. Amend Sec.  1208.31 by revising paragraphs (f) and (g) to read as 
follows:


Sec.  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

0
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.


0
34. Add Sec.  1212.13 to read as follows:


Sec.  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.


Sec.  1212.14  [Amended]

0
35. Amend Sec.  1212.14 in paragraph (a)(1)(vii) by removing the words 
``Sec.  1235.3 of this chapter'' and adding in their place the words 
``Sec.  235.3 of chapter I''.

PART 1235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
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).


Sec. Sec.  1235.1, 1235.2, 1235.3, and 1235.5  [Removed and Reserved]

0
37. Remove and reserve Sec. Sec.  1235.1, 1235.2, 1235.3, and 1235.5.

0
38. Amend Sec.  1235.6 by:
0
a. Removing paragraphs (a)(1)(ii) and (iii);
0
b. Redesignating paragraph (a)(1)(iv) as paragraph (a)(1)(ii) and 
revising it;
0
c. Revising paragraphs (a)(2)(ii) and (iii); and
0
d. Adding paragraph (c).

[[Page 80401]]

    The revisions and addition read as follows:


Sec.  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 Sec.  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 Sec.  208.30 or Sec.  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

0
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.


0
40. Amend Sec.  1244.4 by revising paragraph (b) to read as follows:


Sec.  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