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1An application for asylum is also an application 

for statutory withholding of removal, 8 CFR 

1208.3(b), and this rule clarifies that it is also an 

application for protection under the CAT. 

Moreover, as discussed, infra, the final rule 

contains provisions related to aliens seeking 

withholding of removal or CAT protection—but not 

asylum—in proceedings under 8 CFR 1208.2(c)(2). 

Thus, unless the context indicates otherwise, 

references to an asylum application in this final 

rule encompass references to statutory withholding 

of removal and protection under the CAT. 

2The INA states both that a fee may be charged 

for an asylum application, INA 208(d)(3), 8 U.S.C. 

1158(d)(3), and that the initial hearing on an asylum 

application occur within 45 days of filing the 

application absent exceptional circumstances, INA 

208(d)(5)(A)(ii), 8 U.S.C. 1158(d)(5)(A)(ii). Thus— 

for an asylum application that requires a fee— 

because the application cannot be filed until the fee 

is paid and because a hearing cannot occur on the 

application until it is filed, the Department finds 

that the statutory scheme in INA 208, 8 U.S.C. 1158, 

contemplates that it is reasonable to expect an alien 

to have received a fee receipt within 45 days of 

filing the asylum application. 

3 In addition, this final rule adds corresponding 

cross-references to 8 CFR 1003.8, 1003.24, 1003.31, 

and 1103.7 to account for this exception to the 

general requirement that any form or application 

that requires a fee must be submitted together with 

the fee receipt. 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Parts 1003, 1103, 1208 and 1240 

[Docket No. EOIR 19–0010; Dir. Order No. 

04–2021] 

RIN 1125–AA93 

Procedures for Asylum and 

Withholding of Removal 

AGENCY: Executive Office for 

Immigration Review, Department of 

Justice. 

ACTION: Final rule. 

SUMMARY: On September 23, 2020, the 

Department of Justice (‘‘DOJ’’ or ‘‘the 

Department’’) published a notice of 

proposed rulemaking (‘‘NPRM’’ or 

‘‘proposed rule’’) that proposed to 

amend the regulations governing the 

adjudication of applications for asylum 

and withholding of removal before the 

Executive Office for Immigration 

Review (‘‘EOIR’’), including outlining 

requirements for filing a complete 

application for relief and the 

consequences of filing an incomplete 

application, and establishing a 15-day 

filing deadline for aliens applying for 

asylum in asylum-and-withholdingonly-proceedings, and clarifying 

evidentiary standards in adjudicating 

such applications. Further, the 

Department proposed changes related to 

the 180-day asylum adjudication clock. 

This final rule responds to comments 

received in response to the NPRM and 

adopts the NPRM with few changes. 

DATES: This rule is effective on January 

15, 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. Background 

A. Proposed Rule 

On September 23, 2020, the 

Department published an NPRM that 

would amend EOIR’s regulations 

regarding the procedures for the 

submission and consideration of 

applications for asylum, statutory 

withholding of removal, and protection 

under the regulations issued pursuant to 

the legislation implementing the 

Convention Against Torture and Other 

Cruel, Inhuman or Degrading Treatment 

or Punishment (‘‘CAT’’). Procedures for 

Asylum and Withholding of Removal, 

85 FR 59692 (Sept. 23, 2020). Through 

the NPRM, the Department proposed 

changes to 8 CFR parts 1003, 1208, and 

1240 regarding completeness 

requirements for such an application, 

and the consequences of filing an 

incomplete application. Further, it 

proposed to establish a 15-day filing 

deadline for aliens applying for asylum 1

in asylum-and-withholding only 

proceedings and proposed changes to 

improve adherence to the statutory 

requirement that asylum applications be 

adjudicated within 180 days absent 

exceptional circumstances. The rule 

also proposed to clarify evidentiary 

standards in adjudicating such 

applications. 

B. Authority 

The Attorney General is issuing this 

final rule pursuant to the authority at 

sections 103(g) and 208(d)(5)(B) of the 

Immigration and Nationality Act (‘‘INA’’ 

or ‘‘the Act’’), 8 U.S.C. 1103(g) and 

1158(d)(5)(B). 

C. Final Rule 

Following consideration of the public 

comments received, discussed below in 

section II, the Department has 

determined to publish the provisions of 

the proposed rule as final except for the 

changes noted in I.C.1 below and certain 

technical amendments. The rationale for 

those provisions that are unchanged 

from the proposed rule remains valid. 

85 FR at 59693–97. 

1. Filing Deadline for Aliens in Asylumand-Withholding-Only Proceedings 

The NPRM added a new paragraph (d) 

to 8 CFR 1208.4, but the final rule splits 

that paragraph into three parts, 

including adding a clarification 

regarding fee receipts in response to 

commenters’ concerns. Paragraph (d)(1) 

of the final rule mirrors paragraph (d) in 

the proposed rule; it establishes an 

initial 15-day filing deadline for the 

submission of Form I–589, Application 

for Asylum and for Withholding of 

Removal, including applications for 

protection under the CAT, by aliens in 

asylum-and-withholding-only 

proceedings under 8 CFR 1208.2(c)(1) 

and 1208.4(b)(3)(iii). The 15-day period 

is calculated from the date of the alien’s 

first hearing before an immigration 

judge and is subject to possible 

extension for good cause by the 

immigration judge. For aliens who do 

not file the application by the deadline 

set by the immigration judge, the 

immigration judge will deem the alien’s 

opportunity to submit the application 

waived in the proceedings pending 

before EOIR, and the case will be 

returned to the Department of 

Homeland Security (‘‘DHS’’). 

If the Form I–589 requires payment of 

a fee, this final rule at paragraph (d)(2) 

maintains the general requirement for 

applications and motions before EOIR: 

The alien must submit a fee receipt 

together with the application by the 

deadline set by the immigration judge. 

In response to commenters’ concerns, 

however, this final rule adds a provision 

at paragraph (d)(3) to allow flexibility 

for aliens to meet the filing deadline 

when the aliens cannot meet all 

requirements due to no fault of their 

own. Accordingly, if the alien has not 

yet received a copy of the fee receipt 

from DHS in time to meet the Form I– 

589 filing deadline, the alien may 

instead provide the immigration court 

with a copy of the payment submitted 

to DHS when the alien submits his or 

her application to EOIR. Aliens who 

provide this alternative proof of 

payment must still provide a copy of the 

fee receipt. In such an instance, the fee 

receipt will be due by the deadline the 

immigration judge sets. If the 

immigration judge does not set a 

separate deadline for the submission of 

the fee receipt, the alien must submit 

the fee receipt within 45 days 2 of the 

date of filing the associated 

application.3

In response to a recommendation by 

a commenter, the Department is also 

amending 8 CFR 1208.4(d)(1) in the 

final rule to apply the 15-day deadline 

to applications for statutory withholding 

of removal and protection under the 

CAT for aliens in proceedings under 8 


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4The final rule related to fees charged by USCIS 

for filing of an I–589 was preliminarily enjoined by 

two federal district courts prior to its effective date. 

Immigrant Legal Resource Ctr. v. Wolf, No. 20–cv– 

Continued 

CFR 1208.2(c)(2). The Department sees 

no reason to distinguish between aliens 

subject to proceedings under 8 CFR 

1208.2(c)(1) and those subject to 

proceedings under 8 CFR 1208.2(c)(2), 

as both groups are generally detained. 

Moreover, the reasons underpinning the 

application deadline for 8 CFR 

1208.2(c)(1) apply with equal force to 

proceedings under 8 CFR 1208.2(c)(2). 

Accordingly, in response to the 

recommendation of at least one 

commenter, the final rule adopts the 

commenter’s suggestion and edits the 

language in 8 CFR 1208.4(d)(1) to make 

the 15-day deadline, with the possibility 

of an extension for good cause, 

applicable to aliens in proceedings 

under 8 CFR 1208.2(c)(2) seeking 

statutory withholding of removal or 

protection under the CAT regulations. 

Finally, the final rule makes a syntax 

change to the language in 8 CFR 

1208.4(d)(1) to clarify that if an alien 

does not file an appropriate application 

by the deadline set by the immigration 

judge, the immigration judge shall deem 

the opportunity to file such an 

application waived, and the case shall 

be returned to DHS. The proposed rule 

included the phrase ‘‘for execution of an 

order of removal’’ after ‘‘DHS,’’ but that 

phrasing risks confusion because not 

every alien in proceedings under 8 CFR 

1208.2(c)(1) is subject to an order of 

removal. See, e.g., 8 CFR 

1208.2(c)(1)(iii) (VWP applicant for 

admission who is denied admission). 

Accordingly, the final rule deletes that 

phrase to make clear that in the 

circumstances of 8 CFR 1208.4(d)(1), the 

case will simply be returned to DHS, 

and DHS will take whatever subsequent 

action it deems appropriate. 

2. Requirements for the Filing of an 

Application 

The rule amends 8 CFR 1208.3(c)(3) 

regarding the requirements for filing a 

Form I–589, Application for Asylum 

and for Withholding of Removal, and 

the procedures for correcting errors in 

filed applications. These amendments 

apply to the submission of any Form I– 

589 before EOIR, including aliens in 

removal proceedings under section 240 

of the Act, 8 U.S.C. 1229a, aliens in 

asylum-and-withholding-only 

proceedings under 8 CFR 1208.2(c)(1) 

and 1208.4(b)(3)(iii), and aliens in 

withholding-only proceedings under 8 

CFR 1208.2(c)(2). 

First, the rule specifies that the 

application must be filed in accordance 

with the form instructions and the 

general requirements for filings before 

the immigration court at 8 CFR 1003.24, 

1003.31(b), and 1103.7(a)(3), including 

the payment of any required fee. The 

rule provides that an application is 

incomplete if, in addition to existing 

grounds, it is not completed and 

submitted in accordance with the form 

instructions or is unaccompanied by 

any required fee receipt (or alternate 

proof, as necessary). 

Second, the rule further revises 8 CFR 

1208.3(c)(3) by removing the current 

provision that deems an alien’s 

incomplete asylum application to be 

complete if the immigration court fails 

to return the application within 30 days 

of receipt. Instead, the rule provides that 

immigration courts will reject all 

incomplete applications. Moreover, the 

rule adds a maximum of 30 days from 

the date of rejection for the alien to 

correct any deficiencies in his or her 

application. Under the rule, an asylum 

applicant’s failure to re-file a corrected 

application within the 30-day time 

period, absent exceptional 

circumstances, shall result in a finding 

that the alien has abandoned that 

application and waived the opportunity 

to file such an application in the 

proceedings pending before EOIR. 

Lastly, the rule updates language in 8 

CFR 1208.3(c)(3) regarding incomplete 

asylum applications and potential work 

authorization, changing a reference to 

the ‘‘150-day period after which the 

applicant may file an application for 

employment authorization’’ to remove 

the specific time period to ensure that 

EOIR regulations do not contradict DHS 

regulations regarding employment 

authorization eligibility. 

3. Clarification Regarding Immigration 

Judge Evidentiary Considerations 

The rule clarifies what type of 

external materials an immigration judge 

may rely on under 8 CFR 1208.12 when 

deciding an asylum application, which 

includes an application for withholding 

of removal and protection under the 

CAT, or deciding whether an alien has 

a credible fear of persecution or torture 

pursuant to 8 CFR 1208.30, or a 

reasonable fear of persecution or torture 

pursuant to 8 CFR 1208.31. The rule 

allows immigration judges to rely on 

resources provided by the Department 

of State, other DOJ offices, DHS, or other 

U.S. government agencies. The rule also 

provides that immigration judges may 

rely on foreign government and nongovernmental sources when the judge 

determines those sources are credible 

and the material is probative. 

Additionally, the rule expands 8 CFR 

1208.12 to allow an immigration judge, 

on his or her own authority, to submit 

probative evidence from credible 

sources into the record. The 

immigration judge may consider such 

evidence in ruling on an asylum 

application, including an application for 

withholding of removal and protection 

under the CAT, so long as the judge has 

provided a copy to both parties and both 

parties have had an opportunity to 

comment on or object to the evidence 

prior to the issuance of the immigration 

judge’s decision. 

4. Asylum Adjudication 

The rule removes and reserves 8 CFR 

1208.7, relating to obtaining work 

authorization from DHS, and 1208.9, 

relating to procedures for interviews 

before DHS asylum officers. The rule 

also amends 8 CFR 1003.10(b) to make 

clear that, in the absence of exceptional 

circumstances, an immigration judge 

shall complete adjudication of an 

asylum application within 180 days 

after the application’s filing date. 

The rule amends 8 CFR 1003.10(b) to 

provide a definition of ‘‘exceptional 

circumstances’’ for purposes of 

1003.10(b), 1003.29, and 1240.6, and to 

clarify that the section’s use of the 

phrase ‘‘exceptional circumstances’’ 

refers to those scenarios that are beyond 

the control of the parties or the 

immigration court. 

Furthermore, the rule amends 8 CFR 

1003.29 to specify that nothing in that 

section authorizes a continuance that 

causes the adjudication of an asylum 

application to exceed 180 days. 

Similarly, the rule revises 8 CFR 

1003.31 to provide that the section shall 

not authorize setting or extending time 

limits for the filing of documents after 

an asylum application has been filed 

that would cause the adjudication of an 

asylum application to exceed 180 days. 

Consistent with INA 208(d)(5)(A)(iii), 8 

U.S.C. 1158(d)(5)(A)(iii), both of these 

changes provide for an exception if 

exceptional circumstances as defined in 

8 CFR 1003.10(b) apply. The rule also 

revises 8 CFR 1240.6 to include that the 

section does not authorize an 

adjournment that causes the 

adjudication of an asylum application to 

exceed 180 days in the absence of 

exceptional circumstances as defined in 

8 CFR 1003.10(b). 

5. Technical Amendments 

The file rule adopts the proposal that 

any required fee be submitted by the 

time of filing, but further provides for 

cross-references to both 8 CFR 103.7 and 

8 CFR part 106 to prevent confusion and 

ensure consistency regardless of how 

the litigation over the DHS rule 4 is 

resolved. 


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05883–JSW, 2020 WL 5798269 (N.D. Cal. Sept. 29, 

2020); Nw. Immigrant Rights Project v. U.S. 

Citizenship & Immigration Servs., No. 19–3283 

(RDM), 2020 WL 5995206 (Oct. 8, 2020). Although 

this final rule updates cross-references in EOIR’s 

regulations to DHS’s regulations to account for the 

USCIS rule’s amendments of DHS’s regulations, the 

USCIS fees remain governed by DHS’s previous 

regulations while the aforementioned injunctions 

remain in effect. Because the ultimate resolution of 

the litigation challenging the DHS fee rule is 

unknown, this final rule amends EOIR’s regulations 

to include cross-references to both the previous 

DHS regulations and the new regulations to ensure 

that the cross-references do not become inaccurate 

regardless of how the litigation is resolved. 

In addition, this rule provides for 

technical amendments not addressed in 

the proposed rule. It corrects outdated 

references to ‘‘Service’’ to properly 

reference ‘‘DHS’’ in 8 CFR 1001.31(b). 

Similarly, it clarifies references to 

‘‘withholding of removal’’ by 

referencing section 241(b)(3) of the INA 

in order to distinguish that form of 

protection from protection under the 

CAT. Additionally, for precision, it 

replaces references to the CAT with 

reference to 8 CFR 1208.16 through 

1208.18. No substantive changes are 

intended by these amendments. 

D. Effective Date 

As noted above, this rule is effective 

on January 15, 2021. 

Further, the Department clarifies 

herein the rule’s mostly prospective 

temporal application. The provisions of 

the rule regarding the 15-day filing 

deadline for the submission of asylum 

applications apply only to asylum-andwithholding-only proceedings initiated 

after the effective date of the final rule. 

The provisions of the rule related to the 

I–589 completeness and filing 

requirements apply only to asylum 

applications submitted after the rule’s 

effective date. Except as noted below, 

the provisions of the rule related to 

immigration judge evidentiary 

considerations apply to proceedings of 

any type initiated after the rule’s 

effective date. 

The rule incorporates the statutory 

requirement that ‘‘in the absence of 

exceptional circumstances, final 

administrative adjudication of the 

asylum application, not including 

administrative appeal, shall be 

completed within 180 days after the 

date an application is filed.’’ INA 

208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii). That provision was 

enacted nearly 25 years ago and is 

currently in force. Moreover, EOIR 

reiterated its policy to comply with that 

statutory provision, including the legal 

conclusion that ‘‘good cause’’ is not 

synonymous with ‘‘exceptional 

circumstances,’’ over two years ago. 

EOIR Policy Memorandum 19–05, 

Guidance Regarding the Adjudication of 

Asylum Applications Consistent with 

INA § 208(d)(5)(A)(iii) (Nov. 19, 2018), 

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

1112581/download. Thus, the 

provisions of the rule relating to INA 

208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii) and continuances 

based on exceptional circumstances, 

which are already in effect by both 

statute and policy, apply to pending 

cases. These provisions are simply 

adoptions of existing law or, at most, 

clarifications of existing law. 

Accordingly, they do not have an 

impermissible retroactive effect if 

applied to pending cases. 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)). 

Similarly, the rule incorporates 

principles established by binding 

precedent allowing—if not also 

requiring, in some instances—an 

immigration judge to submit evidence in 

an asylum adjudication. See 85 FR at 

59695 (collecting authorities, including 

Matter of S–M–J–, 21 I&N Dec. 722, 729 

(BIA 1997) (en banc)). Thus, the 

provisions of the rule relating to an 

immigration judge’s submission of 

evidence, which are already in effect 

through binding precedent, apply to 

pending cases. These provisions are 

simply adoptions of existing law or, at 

most, clarifications of existing law and, 

thus, do not have an impermissible 

retroactive effect if applied to pending 

cases. See Sterling Holding Co., LLC, 

544 F.3d at 506. 

Additionally, EOIR does not 

adjudicate—and has never 

adjudicated—applications for 

employment authorization documents 

(EADs) for aliens with pending asylum 

applications; rather, DHS does. 8 CFR 

274a.13(a) (2020). Further, the 

settlement agreement applicable to the 

processing of asylum applications and 

EAD applications in A.B.T. v. U.S. 

Citizenship and Immigration Servs., No. 

CV11–2108–RAJ (W.D. Wash.) (‘‘ABT 

Settlement Agreement’’) expired in 

2019, and EOIR has already announced 

that it will no longer provide aliens or 

their representatives with a copy of a 

180-Day Asylum EAD Clock Notice. See 

EOIR Policy Memorandum 21–02, 

Withdrawal of Operating Policies and 

Procedures Memoranda 13–03 and 16– 

01 (Nov. 6, 2020). Accordingly, the 

provisions of the rule deleting a 

regulation regarding EAD applications 

that is inapplicable to EOIR, 8 CFR 

1208.7, will be effective on the effective 

date. Finally, and for similar reasons, 

the provisions of the rule deleting a 

regulation regarding asylum officers, 8 

CFR 1208.9, that is inapplicable to 

EOIR—because asylum officers are 

employees of DHS, not EOIR—will be 

effective on the effective date. 

II. Public Comments on the Proposed 

Rule 

A. Summary of Public Comments 

The comment period for the proposed 

rule ended on October 23, 2020. Of the 

2,031 comments received, the majority 

were from individual and anonymous 

commenters. The minority of comments 

came from non-profit organizations, law 

firms, and members of Congress. While 

some commenters supported the NPRM, 

the majority of commenters expressed 

opposition to the rule, either in whole 

or in part. 

In general, comments opposing the 

rule misapprehended its impact; 

misstated its contents; failed to 

recognize that significant portions of it 

merely incorporate longstanding law— 

from either statute or binding 

precedent—into the regulations, 

provided no evidence—other than 

isolated and often distinguishable 

anecdotes—to support broad claims of 

particular impacts; made unverified, 

speculative, and hypothetical 

generalizations that do not account for 

the case-by-case and individualized 

decision-making associated with 

adjudicating asylum applications; were 

inconsistent with applicable law, 

contrary to the Department’s 

considerable experience in adjudicating 

asylum applications, or otherwise 

untethered to a reasoned basis; lacked 

an understanding of relevant law and 

procedures regarding asylum 

application adjudications or the overall 

immigration system; failed to engage 

with the specific reasons and language 

put forth by the Department in lieu of 

broad generalizations or hyperbolic, 

unsupported presumptions; or, reflected 

assertions rooted in the rule’s failure to 

agree with the commenters’ policy 

preferences rather than the 

identification of specific legal 

deficiencies or other factors the 

Department should consider. As the vast 

majority of comments in opposition fall 

within one of these categories, the 

Department offers the following general 

responses to them, supplemented by 


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5Many comments were also inconsistent, both 

internally and with other comments. For example, 

some comments posited that the rule focused too 

much on efficiency whereas others argued that the 

rule did not promote efficiency at all. Some 

comments asserted that immigration judges are 

‘‘biased,’’ while others suggested that the 

Department should allow immigration judges to 

continue to set deadlines rather than providing 

deadlines through rulemaking or should even 

promote immigration judges to become judges 

under Article I of the Constitution. The Department 

has addressed all of these comments individually 

herein and acknowledges that inconsistencies make 

many of the comments even less persuasive. 

6To the extent that commenters tacitly 

acknowledged that most asylum claims are not 

meritorious and, thus, that such claims should not 

be expedited in order to allow aliens additional 

time in the United States, the Department finds 

such an argument hardly compelling. The 

Department recognizes and agrees with the 

Supreme Court’s observation that ‘‘as a general 

matter, every delay works to the advantage of the 

deportable alien who wishes merely to remain in 

the United States.’’ INS v. Doherty, 502 U.S. 314, 

323 (1992). Any rationale for encouraging or 

supporting the dilatory adjudication of cases both 

is both inherently unpersuasive and wholly 

outweighed by the importance of timeliness and 

fairness—especially to detained aliens with 

meritorious claims—in adjudicating asylum 

applications. 

more detailed, comment-specific 

responses below.5

In particular, the Department notes 

that many, if not most, commenters 

failed to engage with or acknowledge 

the existing law that informed the 

NPRM, much of which has been in 

existence for years with no noted 

challenges or expressions of concerns. 

For example, the provisions 

incorporating the statutory requirement 

that ‘‘in the absence of exceptional 

circumstances, final administrative 

adjudication of the asylum application, 

not including administrative appeal, 

shall be completed within 180 days after 

the date an application is filed,’’ INA 

208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii), do not reflect any 

novel or recent legal development. That 

statutory provision was enacted nearly 

25 years ago and is currently in force 

with no noted challenges since it was 

enacted. Moreover, EOIR reiterated its 

policy to comply with that statutory 

provision over two years ago, including 

the legal conclusion that ‘‘good cause’’ 

is not synonymous with ‘‘exceptional 

circumstances,’’ over two years ago. 

EOIR Policy Memorandum 19–05, 

Guidance Regarding the Adjudication of 

Asylum Applications Consistent with 

INA § 208(d)(5)(A)(iii) (Nov. 19, 2018), 

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

1112581/download. 

Similarly, the rule incorporates 

principles established by binding 

precedent allowing—if not also 

requiring, in some instances—an 

immigration judge to submit evidence in 

an asylum adjudication. See 85 FR at 

59695. In particular, Matter of S–M–J– 

has been binding for over 20 years, 

again with no noted challenge to it. 

Further, the rule, in multiple ways, 

reflects influence from longstanding 

existing regulations that have also not 

been the subject of challenge or concern. 

See, e.g., 8 CFR 1208.5(a) (‘‘Where 

possible, expedited consideration shall 

be given to [adjudicating asylum] 

applications of detained aliens.’’); 8 CFR 

1208.5(b) (‘‘An alien crewmember shall 

be provided the appropriate application 

forms and information required by 

section 208(d)(4) of the Act and may 

then have 10 days within which to 

submit an asylum application to the 

district director having jurisdiction over 

the port-of-entry. The district director 

may extend the 10-day filing period for 

good cause.’’); 8 CFR 1208.3(c)(3) (‘‘An 

asylum application that does not 

include a response to each of the 

questions contained in the Form I–589, 

is unsigned, or is unaccompanied by the 

required materials specified in 

paragraph (a) of this section is 

incomplete.’’). Commenters did not 

persuasively explain—if they attempted 

to explain at all—why these wellestablished legal principles are 

inappropriate bases for the rule. 

Most commenters failed to 

acknowledge the benefits of the rule, 

such as expeditious consideration of 

meritorious asylum claims by detained 

aliens. Indeed, commenters did not 

explain why it would be preferable for 

the Department not to expedite 

consideration of asylum claims, 

particularly those made by detained 

aliens, given the risks of faded 

memories and evidence degradation that 

adjudicatory delays invite. Relatedly, 

few, if any, commenters acknowledged 

or addressed the issue of how a delay 

in adjudication also makes it more 

difficult for aliens to obtain pro bono 

representation. See, e.g., Human Rights 

First, The U.S. Immigration Court, 

https://www.humanrightsfirst.org/sites/ 

default/files/HRF-Court-BacklogBrief.pdf (last visited Dec. 4, 2020) 

(hereinafter ‘‘HRF Report’’) (‘‘In a 

February 2016 survey conducted by 

Human Rights First of 24 pro bono 

coordinators at many of the nation’s 

major law firms, nearly 75 percent of 

pro bono professionals indicated that 

delays at the immigration court are a 

significant or very significant negative 

factor in their ability to take on a pro 

bono case for legal representation before 

the court.’’). In short, commenters failed 

to put forth a persuasive argument for 

why the Department should not 

expeditiously consider asylum 

applications, especially for detained 

aliens with meritorious claims,6 and the 

Department is unaware of any such 

argument that would outweigh the 

benefits in that regard in the rule. 

Most, if not all, commenters opposed 

to the rule appeared to view its 

procedural changes wholly through a 

results-oriented lens such that a 

proposal that commenters speculatively 

believed would cause aliens to ‘‘win’’ 

fewer cases was deemed objectionable, 

even without evidence that such a result 

would follow. Such a view appeared to 

have been based on a tacit belief that 

aliens were entitled to specific 

outcomes in specific cases, 

notwithstanding the relevant evidence 

or law applicable to a case, and that the 

rule inappropriately required 

adjudicators to maintain impartiality in 

adjudicating cases rather than 

continuing to provide what commenters 

viewed as favorable treatment toward 

aliens. To the extent that commenters 

simply disagree as a policy matter that 

asylum cases should be adjudicated in 

a timely manner, Doherty, 502 U.S. at 

323 (‘‘As a general matter, every delay 

works to the advantage of the deportable 

alien who wishes merely to remain in 

the United States.’’), or that the 

Department should take measures, 

consistent with due process, to ensure 

the timely completion of such cases, the 

Department finds such policy 

disagreements utterly unpersuasive. 

Many, if not all, commenters failed to 

acknowledge the reality that no one 

rulemaking can cover every conceivable 

adjudicatory scenario. EOIR currently 

has over 570,000 asylum applications 

pending adjudication, and each one is 

subject to adjudication based on its own 

individual facts. Consequently, the 

Department cannot rule out the 

possibility that at least one claim will 

present an issue not contemplated by 

the rule, including a unique scenario 

posited by a commenter. Nevertheless, 

the rule is expected to cover most 

applications and contains appropriate 

safeguards—e.g., extension of a filing 

deadline for good cause—that should 

adequately address any unique or 

unexpected situations. 

Relatedly, many commenters 

criticized the Department for not 

providing more quantitative data in the 

NPRM, yet did not explain what type of 

data that is actually tracked would be 

appropriate, particularly to address 

unique or hypothetical scenarios put 

forth by commenters. The level of 

granularity presumed by commenters 

for hundreds of thousands of asylum 

applications does not exist, and even if 

it did, the Department could not be 


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7Commenters also posited that DHS’s expansion 

of expedited removal authority would further 

increase the number of affected aliens subject to 

this rule. See Designating Aliens for Expedited 

Removal, 84 FR 35409 (July 23, 2019); see also 

Make the Rd. New York v. Wolf, 962 F.3d 612, 618 

(D.C. Cir. 2020). As discussed, infra, the size of the 

population affected has little relationship to the 

import of the rule, and even if the size were 

material to some degree of operational impact, the 

benefits of the rule far outweigh any such impacts. 

8Landing permits are typically valid for 29 days. 

8 CFR 252.1(d). An alien crewman who applies for 

asylum during that 29-day period expresses an 

intent not to depart on the vessel or aircraft on 

which the crewman arrived and, thus, triggers the 

possibility of revocation of the crewman’s landing 

permit. INA 252(b), 8 U.S.C. 1282(b); cf. 8 CFR 

1208.5(b)(1) (‘‘If the alien [crewman] makes such 

fear known to an official while off such conveyance, 

the alien shall not be returned to the conveyance 

but shall be retained in or transferred to the custody 

of the [DHS].’’). 

9As a condition of participation in the VWP, an 

alien agrees to waive any right to contest any 

removal action against the alien, other than through 

an application for asylum, which would necessarily 

include detention. INA 217(b)(2), 8 U.S.C. 

1187(b)(2). 

10Aliens subject to the Guam-Commonwealth of 

the Northern Mariana Islands VWP are subject to 

expected to consider every speculative 

possibility presented by commenters. 

Moreover, the portions of the rule 

incorporating existing law—e.g., the 

180-day adjudication deadline, the 

authority of an immigration judge to 

submit evidence—are not dependent on 

data because the stem from alreadybinding authority. 

Many commenters raised questions 

about the possibility of the Department 

issuing multiple final rules related to 

asylum in 2020. The Department 

acknowledges that it has proposed and 

finalized multiple rules in 2019 and 

2020 but categorically rejects any 

assertions that it has done so for any 

sort of nefarious purpose. Each of the 

Department’s rules stands on its own, 

however, and each includes 

explanations of its basis and purpose, 

while allowing for public comment. 

Further, the interplay and impact of all 

of the rules is speculative at the present 

time, particularly due to ongoing and 

expected future litigation, which may 

allow all, some, or none of the rules to 

ultimately take effect. Nevertheless, to 

the extent commenters noted some 

potential overlap or joint impacts, the 

Department regularly considers the 

existing and potential legal framework 

when a specific rule is proposed or 

implemented. 

Regarding the interplay of this rule 

and other recent proposed and finalized 

rules, the Department notes that 

commenters generally focused on the 

Department’s proposed joint rule with 

DHS from June 2020, Procedures for 

Asylum and Withholding of Removal; 

Credible Fear and Reasonable Fear 

Review, 85 FR 36264 (June 15, 2020). 

According to commenters, that 

proposed rule, if implemented, would 

result in a significant number of aliens 

being subject to proceedings under 8 

CFR 1208.2(c) and, thus, subject to the 

new 15-day filing deadline under this 

rule.7 Although the Department does 

not dispute that by finalizing that 

proposed rule, there will be an 

additional category of aliens subject to 

proceedings under 8 CFR 1208.2(c) and, 

thus, subject to the new filing deadline 

under this rule, it does note that 

commenters’ suggestion of the size of 

that category is both grossly 

speculative—because the number would 

depend on variables that cannot be 

accurately predicted such as new 

inflows of illegal immigration, the 

validity of any claims made by aliens in 

those inflows subject to the credible fear 

screening process, and DHS’s exercise of 

prosecutorial discretion—and wholly 

outside the Department’s control. 

Moreover, commenters did not 

explain why the size of the population 

subject to proceedings under 8 CFR 

1208.2(c) matters for purposes of the 

rule. Regardless of the size of the 

population subject to a 15-day filing 

deadline, the Department, DHS, and the 

asylum applicant all have a strong 

interest in the expedited consideration 

of an asylum claim, particularly where 

that claim is a meritorious one put forth 

by a detained alien. Further, even if the 

size of the population of aliens subject 

to 8 CFR 1208.2(c) mattered to the 

degree alleged by commenters, the 

Department has determined, as a matter 

of policy, that the benefits of the rule as 

a whole—e.g., better effectuation of 

statutory directives, the expedited 

consideration of meritorious asylum 

claims, and the elimination of 

provisions that are immaterial to EOIR— 

far outweigh any negative impacts that 

it would, including in tandem with 

other rules. 

Additionally, commenters who raised 

the issue of the interplay between this 

rule and the June 2020 proposed rule 

failed to acknowledge that this rule 

would actually provide an additional 

safeguard to that rule to ensure that an 

alien’s asylum claims is not 

inadvertently pretermitted. See 85 FR at 

36277; see also note 47, infra. For all of 

these reasons—and as discussed in more 

detail below—the Department simply 

finds commenters’ concerns about this 

rule in connection with other proposed 

and finalized rules to be unavailing. 

Relatedly, regarding the 15-day filing 

deadline in particular, many, if not most 

commenters, failed to acknowledge that 

the 15-day deadline in the rule for filing 

an asylum application applies 

principally to detained aliens. That 

provision applies to aliens in 

proceedings under 8 CFR 1208.2(c), and 

those categories are usually subject to 

detention unless paroled from custody 

by DHS. The categories of aliens 

described in 8 CFR 1208.2(c) encompass 

aliens subject to inspection and 

detention as applicants for admission, 

INA 232(a), 235(a)(3) and (d)(2), 8 U.S.C. 

1222(a), 1225(a)(3) and (d)(2); 8 CFR 

235.3(a), including those who are later 

denied admission, and aliens who have 

entered the United States and 

subsequently become subject to removal 

through an administratively final 

removal order issued by DHS outside of 

immigration proceedings conducted by 

the Department, INA 241(a)(2), 8 U.S.C. 

1231(a)(2). In either case, however, the 

Department lacks authority to either 

parole the aliens into the United 

States—and, thus, order them as 

applicants for admission released from 

DHS custody—or to order the release of 

aliens subject to a final order of 

removal. Consequently, unless released 

by DHS, such aliens would be subject to 

custody during the adjudication of their 

asylum applications. 

More specifically, alien crewmembers 

described in 8 CFR 1208.2(c)(1)(i)(A) 

who are applicants for a landing permit 

are subject to detention during 

inspection. INA 232(a), 235(a)(3) and 

(d)(2), 254(a)(1), 8 U.S.C. 1222(a), 

1225(a)(3) and (d)(2), 1284(a)(1); 8 CFR 

235.3(a), 252.1(a). Alien crewmembers 

described in 8 CFR 1208.2(c)(1)(i)(B) 

who have been refused permission to 

land are also subject to detention. INA 

254(a)(2), 8 U.S.C. 1284(a)(2). Alien 

crewmembers described in 8 CFR 

1208.2(c)(1)(i)(C) who have been granted 

permission to land are subject to 

detention and removal if their landing 

permits are subsequently revoked.8 INA 

252(b), 8 U.S.C. 1282(b); 8 CFR 252.2. 

Alien stowaways described in 8 CFR 

1208.2(c)(1)(ii) found to have a credible 

fear of persecution or torture are subject 

to detention pursuant to INA 

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

1225(b)(1)(B)(ii). Alien applicants for 

admission under the Visa Waiver 

Program (‘‘VWP’’) described in 8 CFR 

1208.2(c)(1)(iii) are subject to detention 

during inspection, like all arriving 

aliens. INA 232(a), 235(a)(3) and (d)(2), 

8 U.S.C. 1222(a), 1225(a)(3) and (d)(2); 

8 CFR 235.3(a). An alien admitted under 

the VWP who is found to be deportable 

is ordered removed. 8 CFR 217.4(b).9

Accordingly, an alien admitted under 

the VWP described in 8 CFR 

1208.2(c)(1)(iv) is subject to detention as 

an alien with an order of removal. INA 

241(a)(2), 8 U.S.C. 1231(a)(2).10


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similar procedures regarding refusal of admission 

and removal as aliens subject to the regular VWP. 

8 CFR 212.1(q)(8). Consequently, aliens described 

in 8 CFR 1208.2(c)(1)(vii) and (viii) are subject to 

detention on the same bases as aliens described in 

8 CFR 1208.2(c)(1)(iii) and (iv). 

11As a condition of being granted S 

nonimmigrant status, an alien waives any right to 

contest, other than an application for withholding 

of removal, any removal action against the alien, 

including detention, before the alien obtains lawful 

permanent resident status. INA 214(k)(3)(C), 8 

U.S.C. 1184(k)(3)(C); 8 CFR 236.4(a). 

12The Department recognizes 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 it is aware 

that litigation will likely follow this rule, just as it 

has others of a similar nature. 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 Department is 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)). Nevertheless, the 

Department does not believe that the inevitability 

of litigation over contested issues is a sufficient 

basis to preclude the exercise of statutory and 

regulatory authority in furtherance of the law and 

the policies of the Executive Branch. 

13The Ninth Circuit has affirmed a preliminary 

injunction restoring the availability of bond 

hearings for aliens who have received positive 

credible fear determinations, though that decision 

was premised on a putative constitutional due 

process right to a bond hearing rather than the 

statutory interpretation of INA 235(b)(1), 8 U.S.C. 

1225(b)(1), advanced by the Supreme Court in 

Jennings and the Attorney General in Matter of M– 

S–. See Padilla v. Immig. And Cust. Enforc., 953 

F.3d 1134 (9th Cir. 2020), petition for cert. filed, 

Dkt. 20–234 (Aug. 27, 2020). As noted, supra, the 

Department also expects the rulemaking referenced 

by commenters, which places aliens who receive a 

positive credible fear determination in proceedings 

under 8 CFR 1208.2(c), to be challenged through 

litigation. The Department cannot predict the 

outcomes of either litigation, but the possible 

outcomes would not affect this final rule or the 

Department’s consideration of comments regarding 

it. If the provisions of the joint rulemaking 

referenced by commenters are finalized as proposed 

but then permanently enjoined, then that rule 

would, of course, have no effect on this final rule. 

If the provisions of the joint rulemaking referenced 

by commenters are finalized as proposed and go 

into effect and if the Government’s position in 

Padilla is ultimately determined to be correct, then 

this final rule addresses that situation as discussed 

herein. In that situation, all aliens subject to 

proceedings under 8 CFR 1208.2(c) would remain 

ineligible for bond hearings, and their cases would 

warrant expeditious treatment accordingly, 

consistent with longstanding regulatory language, 8 

CFR 1208.5(a) (‘‘Where possible, expedited 

consideration shall be given to [asylum] 

applications of detained aliens’’). Finally, if the 

provisions of the joint rulemaking referenced by 

commenters are finalized as proposed and go into 

effect but the Government’s position in Padilla is 

ultimately determined not to be correct, then aliens 

who receive a positive credible fear determination 

would still be subject to both detention and 

proceedings under 8 CFR 1208.2(c), but would be 

eligible for bond hearings before an immigration 

judge. In that situation, any impacts of this rule 

have also been accounted for, contrary to 

commenters’ suggestions. Aliens seeking bond in 

that situation would have a strong incentive— 

consistent with this final rule—to file an asylum 

application expeditiously to bolster their arguments 

in support of release from custody. See, e.g., Matter 

of Andrade, 19 I&N Dec. 488, 491 (BIA 1997) 

(alien’s potential eligibility for relief reflects on the 

likelihood of the alien’s appearance at future 

hearings which addresses whether an alien is a 

likely flight risk). To be sure, the filing of an asylum 

application does not automatically entitle an alien 

to bond. See Matter of R–A–V–P–, 27 I&N Dec. 803 

(BIA 2020) (alien with a pending asylum 

application but no family, employment, community 

ties, or probable path to obtain lawful status is a 

flight risk who does not warrant release on bond). 

But, consistent with 8 CFR 1208.5(a), an alien who 

is not granted bond still warrants expeditious 

consideration of his or her asylum application 

which is facilitated by this final rule. In short, 

regardless of the possible permutations of litigation 

outcomes related to relevant other rulemakings 

referenced by commenters, this final rule has fully 

considered the possible variations and commenters’ 

attendant concerns. 

Alien applicants for admission with 

an S visa described in 8 CFR 

1208.2(c)(1)(vi) are subject to detention 

during inspection, like all arriving 

aliens. INA 232(a), 235(a)(3) and (d)(2), 

8 U.S.C. 1222(a), 1225(a)(3) and (d)(2); 

8 CFR 235.3(a). An alien admitted as an 

S nonimmigrant described in 8 CFR 

1208.2(c)(1)(vi) who is subsequently 

ordered removed, 8 CFR 236.4(b), is also 

subject to detention. INA 241(a)(2), 8 

U.S.C. 1231(a)(2).11

Aliens described in 8 CFR 

1208.2(c)(1)(v) are those ordered 

removed under INA 235(c), 8 U.S.C. 

1225(c). Such aliens are subject to 

detention as aliens with final orders of 

removal. INA 241(a)(2), 8 U.S.C. 

1231(a)(2). Similarly, aliens described in 

8 CFR 1208.2(c)(2) are those subject to 

removal orders, either through 

reinstating a prior order, INA 241(a)(5), 

8 U.S.C. 1231(a)(5), or through the 

issuance of an administrative order of 

removal as an alien convicted of an 

aggravated felony, INA 238(b), 8 U.S.C. 

1228(b). Such aliens are subject to 

detention as aliens with orders of 

removal. INA 241(a), 8 U.S.C. 1231(a). 

The June 2020 proposed joint rule on 

asylum procedures was recently 

finalized without change to the 

provision cited by commenters. See 

Procedures for Asylum and Withholding 

of Removal; Credible Fear and 

Reasonable Fear Review, signed by the 

Attorney General and the Acting 

Secretary of Homeland Security on 

December 2, 2020. The Department 

expects that there will be a litigation 

challenge to that rule, just as there has 

been to most of its recent immigrationrelated rulemakings.12 Thus, the 

Department cannot predict definitively 

whether that rule will go into effect as 

finalized. 

Nevertheless, even if that joint rule 

goes into effect and aliens who receive 

a positive credible fear determination 

are placed in proceedings under 8 CFR 

1208.2(c), 85 FR at 36267, such aliens 

would still be subject to detention 

unless paroled by DHS. See Jennings v. 

Rodriguez, 138 S. Ct. 830, 842 (2018) 

(‘‘Read most naturally, [8 U.S.C.] 

§§ 1225(b)(1) and (b)(2) thus mandate 

detention of applicants for admission 

until certain proceedings have 

concluded. Section 1225(b)(1) aliens are 

detained for ‘‘further consideration of 

the application for asylum,’’ and 

§ 1225(b)(2) aliens are in turn detained 

for ‘‘[removal] proceeding[s].’’ Once 

those proceedings end, detention under 

§ 1225(b) must end as well. Until that 

point, however, nothing in the statutory 

text imposes any limit on the length of 

detention. And neither § 1225(b)(1) nor 

§ 1225(b)(2) says anything whatsoever 

about bond hearings.’’); see also Matter 

of M–S–, 27 I&N Dec. 476 (A.G. 2018) 

(‘‘The [INA] provides that, if an alien in 

expedited proceedings establishes a 

credible fear, he ‘shall be detained for 

further consideration of the application 

for asylum.’ . . . There is no way to 

apply those provisions except as they 

are written—unless paroled, an alien 

must be detained until his asylum claim 

is adjudicated. The Supreme Court 

recently held exactly that, concluding 

that section 235(b)(1) ‘mandate[s] 

detention throughout the completion of 

[removal] proceedings’ unless the alien 

is paroled.’’ (emphasis added) (citations 

omitted) (quoting Jennings, 138 S. Ct. at 

844–45)).13

In short, aliens described in 8 CFR 

1208.2(c) are generally subject to 

detention by DHS under various statutes 

and regulations with no authorization 

for the Department to reconsider DHS’s 

detention determination and, thus, 

unless paroled by DHS, will be detained 

while their asylum applications are 

adjudicated by immigration judges. A 

pre-existing regulation unaltered by this 

rule already directs the Department to 

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14The Department has fully considered the 

possible impacts of this rule on the relatively small 

pro se population of aliens with asylum 

applications. As discussed below, however, the rule 

neither singles such aliens out for particular 

treatment, nor does it restrict or alter any of the 

many procedural avenues such aliens already have 

available to them in advancing their cases. Further, 

nothing in the rule inhibits the availability of pro 

bono counsel to assist such aliens as appropriate. 

15For example, commenters noted, inter alia, the 

following recent rulemaking actions: Appellate 

Procedures and Decisional Finality in Immigration 

Proceedings; Administrative Closure, 85 FR 52491 

(Aug. 26, 2020); Procedures for Asylum and 

Withholding of Removal; Credible Fear and 

Reasonable Fear Review, 85 FR 36264 (June 15, 

2020). 

16See, e.g., Bureau of Consumer Financial 

Protection, Debt Collection Practices (Regulation F); 

Extension of Comment Period, 85 FR 30890 (May 

21, 2020). 

17See Order Suspending the Right to Introduce 

Certain Persons From Countries Where a 

Quarantinable Communicable Disease Exists, 85 FR 

65806 (Oct. 16, 2020). 

expeditiously. 8 CFR 1208.5(a) (‘‘Where 

possible, expedited consideration shall 

be given to [asylum] applications of 

detained aliens.’’). Commenters did not 

challenge this longstanding directive or 

provide persuasive reasons why 

detained aliens—e.g., those subject to 

proceedings under 8 CFR 1208.2(c), 

including those are subject to such 

proceedings if the recent joint rule goes 

into effect—should not be given 

expedited consideration, particularly if 

such aliens have meritorious claims and 

the approval of the claim will lead to 

release from detention. The Department 

believes strongly that asylum claims of 

detained aliens should receive 

expeditious considerations, and 

commenters’ suggestions to the contrary 

overall were not sufficiently compelling 

to warrant changing this rule. 

Finally, many comments appeared 

rooted in a belief that EOIR’s 

adjudicators are incompetent or 

unethical and are either incapable or 

unwilling to adhere to applicable law. 

Some commenters explicitly traduced 

immigration judges; for example, one 

commenter asserted that immigration 

judges have a ‘‘routine bias’’ against 

aliens and that immigration judges 

routinely ‘‘engage in a host of other 

unethical behavior toward 

respondents.’’ Such generalized, ad 

hominem allegations of bias or 

impropriety are insufficient to 

‘‘overcome a presumption of honesty 

and integrity in those serving as 

adjudicators.’’ Withrow v. Larkin, 421 

U.S. 35, 47 (1975); see also United 

States v. Chem. Found., Inc., 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.’’). 

Moreover, they provide no principled 

basis for the Department to consider 

changes to the NPRM. 

In sum, the Department issued the 

NPRM for the reasons given in order to 

ensure asylum claims are expeditiously 

considered, especially claims of 

detained aliens, to better effectuate 

statutory directives in the INA, to 

ensure authority is appropriately 

exercised, to ensure immigration judges 

consider only complete asylum 

applications and a developed record 

containing probative evidence from 

credible sources, and to promote 

impartial and timely adjudications 

consistent with the law. It did not do so 

for any nefarious purpose, nor did it 

intend for its procedural changes to 

have any substantive bearing on the 

outcomes of additional cases, which 

flow from the evidence and the law, not 

the Department’s process. As discussed 

herein, nothing in the NPRM singles out 

specific populations of aliens, including 

unrepresented aliens,14 nor do any of its 

changes fall disproportionately upon 

such groups in unacceptable manner. To 

the extent that commenters did not 

engage with the NPRM itself, provided 

unsupported assertions of fact or law, 

attacked, tacitly or explicitly, the 

motivations of the Department’s 

adjudicators, or otherwise put forward 

suggestions based on their preferred 

results rather than an impartial and 

timely process, the Department declines 

to adopt those comments. Further, to the 

extent that commenters provided 

substantive analysis and raised 

important issues, the Department has 

considered all of them; however, on 

balance, except for changes noted above, 

it has determined that the policy and 

operational benefits of the rule 

expressed above outweigh all of the 

issues raised by commenters. 

Accordingly, although the Department 

has reviewed all comments received, the 

vast majority of them fall into the 

groupings outlined above, and few of 

them are persuasive for reasons 

explained in more detail below. 

B. Comments Expressing Support 

Comment: Several commenters 

expressed general support for the rule 

and immigration reform. Commenters 

noted the need for regulatory reform 

given the delays in asylum 

adjudications. These commenters 

supported all aspects of the rule, which 

they stated would allow the Department 

to resolve cases in an expeditious 

manner. One commenter stated that the 

rule will increase efficiency and bring 

asylum and withholding regulations 

within the plain meaning and intent of 

the INA. 

Response: The Department agrees 

with the commenters that these 

regulatory changes will better support 

congressional intent and increase 

operational efficiencies. 

C. Comments Expressing Opposition 

1. Administrative Procedure Act: 

Concerns Regarding the Ability To 

Comment 

Comment: Many commenters objected 

to the Department’s allowance of a 30- 

day comment period instead of a 60-day 

or longer period and requested an 

extension of the 30-day comment 

period. Commenters cited Executive 

Order 12866 and stated that a 60-day 

comment period is the standard period 

of time that should be provided for a 

complex rule like the NPRM. 

Commenters stated that the 30-day 

comment period is an insufficient 

period of time for them to adequately 

consider and respond to the significance 

of the rule’s proposed changes. Many 

commenters emphasized that the 

comment period is particularly 

inadequate given the broader context 

that DOJ independent and DHS and DOJ 

jointly have recently published a 

number of complex proposed rules on a 

wide range of immigration-related 

topics.15 Commenters noted that the 

closeness of the comment periods for 

these rules and that, because the 

Departments have not yet issued final 

rules, commenters cannot accurately 

know the broader regulatory context for 

providing comment on the instant rule 

in a short period of time. 

Commenters also stated that the 30- 

day comment period is insufficient in 

the context of the COVID–19 pandemic, 

which, commenters explained, has 

strained commenters’ ability to prepare 

comments due to unique childcare, 

work-life, and academic difficulties. 

Commenters noted examples of other 

Federal agencies that have extended 

comment periods due to the impact of 

COVID–19.16

Other commenters further noted that 

there was a Federal holiday (Labor Day) 

during the comment period or that 

natural disasters and wildfires have 

caused other personal difficulties that 

make the 30-day comment period 

particularly short for meaningful 

comment. 

Some commenters stated that there is 

no need for urgency given the 

lengthiness of the immigration court 

process, delays due to COVID–19, and 

the effective closure of the border by the 

Centers for Disease Control and 

Prevention under Title 42 authority.17

Other commenters explained that the 


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30-day comment period was particularly 

short as they were also working extra 

hours during the comment period to 

take action for clients in advance of the 

October 2, 2020 effective date for U.S. 

Citizenship and Immigration Services’ 

(‘‘USCIS’’) new fees. U.S. Citizenship 

and Immigration Services Fee Schedule 

and Changes to Certain Other 

Immigration Benefit Request 

Requirements, 85 FR 46788 (Aug. 3, 

2020). 

Some commenters noted that DHS has 

provided 60-day comment periods for 

much less complex or significant items 

related to forms. See, e.g., Agency 

Information Collection Activities; 

Extension, Without Change, of a 

Currently Approved Collection: Petition 

for U Nonimmigrant Status, 85 FR 

58381 (Sept. 18, 2020). 

Response: The Department believes 

the 30-day comment period was 

sufficient to allow for meaningful public 

input, as evidenced by the 2,031 public 

comments received, including 

numerous detailed comments from 

interested organizations. The NPRM was 

comparatively short (seven full pages in 

the Federal Register plus parts of two 

other pages), it proposed to amend only 

nine paragraphs in all of chapter V of 8 

CFR, and the issues it addressed were 

either already set by statute (e.g., the 

180-day adjudication deadline in INA 

208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii)), well-known to aliens 

and practitioners (e.g., completing and 

filing an application), well-established 

as immigration court practices (e.g., the 

setting of filing deadlines and the 

development of the record by an 

immigration judge), or the deletion of 

provisions that were practically 

inapplicable to EOIR (e.g., former 8 CFR 

1208.7 and 1208.9). Moreover, 

commenters generally did not explain 

what additional issues they would raise 

during a longer comment period, and 

the volume of comments—as well as 

their breadth—reflects an ample 

consideration of issues during the 

comment period. In short, there is no 

indication that the comment period was 

insufficient. 

Additionally, to the extent that 

commenters referred to other proposed 

rulemakings as a basis for asserting the 

comment period should have been 

longer, their comparisons are 

inapposite. No other proposed 

rulemaking cited by commenters 

addressed small, discrete changes which 

relate to well-established provisions and 

with which aliens and practitioners 

have been quite familiar with for 

decades. In short, the Department 

acknowledges and has reviewed 

commenters’ concerns about the 30-day 

comment period, but those comments 

are unavailing for all of the reasons 

given herein. 

Similarly, contrary to commenters’ 

assertions, there is no evidence that 

either the COVID–19 pandemic or the 

Labor Day holiday had any effect on the 

sufficiency of the 30-day comment 

period. To the contrary, the number of 

comments received, as well as their 

breadth, are strong evidence that the 

comment period was sufficient, 

particularly for a short NPRM that made 

few substantive changes. Employers 

around the country have adopted 

telework flexibilities to the greatest 

extent possible, and the Department 

believes that interested parties can use 

the available technological tools to 

prepare their comments and submit 

them electronically. Indeed, nearly 

every comment was received in this 

manner. Further, crediting the 

assertions of commenters would 

effectively preclude rulemaking by the 

Department for the duration of the 

COVID–19 outbreak, regardless of the 

length of the comment period. The 

Department finds no basis to suspend 

all rulemaking while the COVID–19 

outbreak is ongoing. Similarly, 

commenters’ assertions regarding Labor 

Day reflect an intent to impose a blanket 

rule that any comment period 

encompassing a Federal holiday should 

always be extended, but that position is 

not supported by law, policy, or 

practice. The Department acknowledges 

that particular commenters may have 

faced individual personal circumstances 

which created challenges to 

commenting, but that assertion is true of 

every rulemaking. Further, there is no 

evidence of a systemic inability of 

commenters to provide comments based 

on personal circumstances, and 

commenters’ assertions appear to reflect 

a desire to slow the rulemaking due to 

policy disagreements rather than an 

actual inability to comment on the rule. 

Overall, the Department finds that 

neither the COVID–19 pandemic nor 

any other particular circumstances 

alleged by commenters limited the 

public’s ability to meaningfully engage 

in the notice and comment period. 

The Administrative Procedure Act 

(‘‘APA’’) does not require a specific 

comment period length, see generally 5 

U.S.C. 553(b)–(c). While it is true that 

Executive Order 12866 recommends a 

comment period of at least 60 days, no 

specific length is required. Rather, 

Federal courts have presumed 30 days 

to be a reasonable comment period 

length. For example, the D.C. Circuit has 

stated that ‘‘[w]hen substantial rule 

changes are proposed, a 30-day 

comment period is generally the 

shortest time period sufficient for 

interested persons to meaningfully 

review a proposed rule and provide 

informed comment.’’ 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., North Carolina Growers’ Ass’n. 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). Here, 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 Saints 

Peter and Paul Home v. Pennsylvania, 

140 S. Ct. 2367, 2385 (2020) (‘‘The 

object [of notice and comment], in short, 

is one of fair notice.’’ (citation omitted)). 

Finally, commenters’ comparisons to 

the time allowed for comment on 

changes related to forms are inapposite. 

By statute, the Paperwork Reduction Act 

(‘‘PRA’’) requires a 60-day comment 

period for proposed information 

collections like those referenced by the 

commenters. 44 U.S.C. 3506(c)(2)(A). In 

contrast, as explained above, there is no 

similar statutory requirement for the 

proposed rule itself. Overall, the 

Department disagrees that the comment 

period was too short or that commenters 

did not receive fair notice and an 

opportunity to respond. 

Comment: Some commenters accused 

the Department of engaging in 

‘‘staggered rulemaking,’’ which, 

according to commenters, has made it 

impossible for them to adequately 

comment on the potential effect of this 

rule. According to commenters, several 

pending rulemakings could ‘‘radically 

alter’’ procedures before the EOIR. As 

such, commenters asserted that, without 

knowing which proposed rules will 

ultimately be published and how they 

might be altered in their final form, they 

are being forced to comment without 

being able to consider the full aggregate 

effect of all of the Department’s 

proposed rules. 

Response: The Department did not 

purposefully separate its policy goals 

into separate regulations in order to 

prevent the public from being able to 

meaningfully review and provide 

comment and rejects any assertions to 


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the contrary. The Department 

acknowledges that it has proposed 

multiple rules in 2019 and 2020 but 

categorically rejects any assertions that 

it has done so for any sort of nefarious 

purpose. Each of the Department’s rules 

stands on its own, includes 

explanations of their basis and purpose, 

and allows for public comment, as 

required by the APA. See Little Sisters 

of the Poor Saints Peter & Paul Home, 

140 S. Ct. at 2386 (explaining that the 

APA provides the ‘‘maximum 

procedural requirements’’ that an 

agency must follow in order to 

promulgate a rule). Further, the 

interplay and impact of all of the rules 

is speculative at the present time, both 

because many of them are not yet 

finalized and because of ongoing and 

expected future litigation, which may 

allow all, some, or none of the rules to 

ultimately take effect. Nevertheless, to 

the extent commenters noted some 

potential overlap or joint impacts, the 

Department regularly considers the 

existing and potential legal framework 

when a specific rule is proposed or 

implemented. Further, nothing in any 

rule proposed by the Department, 

including the one underlying this final 

rule, precludes the public from 

meaningfully reviewing and 

commenting on that rule. Moreover, 

even if all rules were in effect, the 

Department has concluded that the 

benefits of the instant rule discussed in 

the NPRM, e.g., 85 FR at 59693–98 and 

herein—as well as the benefits 

discussed in the other rules ultimately 

outweigh any combined impact the 

rules may have. 

2. General Opposition 

The majority of commenters opposed 

the rule, and many commenters 

expressed generalized statements of 

opposition, sometimes in overwrought 

and tendentious terms, that were not 

specifically related to the rule’s 

substantive changes. 

Comment: Several commenters stated 

that the rule conflicts with American 

values and its deeply rooted policy of 

welcoming immigrants and refugees, 

which, commenters asserted, would 

damage the Nation’s standing in the 

world. Moreover, a number of 

commenters stated that the rule is 

immoral, cruel, or the product of racist 

or other ill-intent. Other commenters 

expressed statements of admiration for 

immigrants or asylum seekers, such as 

commenters’ belief that asylum seekers 

as a group contribute positively to the 

United States. 

Response: The rule is not immoral, 

cruel, motivated by racial animus, or 

promulgated with discriminatory intent. 

Instead, the rule is intended to help the 

Department better allocate limited 

resources in order to more expeditiously 

adjudicate meritorious asylum and 

statutory withholding of removal 

claims. For example, setting a 15-day 

deadline for asylum applications in 

asylum-and-withholding-only 

proceedings will help streamline the 

process by ensuring that immigration 

judges can adjudicate such claims 

expeditiously. Similarly, establishing a 

deadline by which an incomplete 

application must be returned will allow 

cases to be adjudicated in a timely and 

predictable manner. Likewise, the 

clarifications regarding what materials 

an immigration judge may consider will 

prevent time being wasted on from noncredible sources or material that is not 

probative. 

Further, this rule is not representative 

of a particular value judgment regarding 

the contributions or relative merits of 

immigrants or asylum seekers in the 

United States. Instead, the rule is 

intended to increase overall efficiencies 

for the processing and adjudication of 

asylum applications before EOIR, which 

in turn would benefit asylum seekers by 

enabling individuals with meritorious 

claims to more quickly receive relief 

and gain stability in the United States. 

Comment: Similarly, many 

commenters expressed a belief that the 

rule was designed to make the asylum 

process more difficult and an attempt to 

severely limit immigration through 

asylum. Commenters stated that the rule 

erects needless barriers for those fleeing 

violence and persecution. Numerous 

commenters also asserted that the rule 

would virtually negate the United 

States’ asylum system and turn 

immigration courts into deportationfocused entities, which would prioritize 

the deportation of asylum seekers rather 

than the fair adjudication of their 

claims. Several of the commenters 

suggested that the underlying motive 

behind the rule is a desire by the 

administration to end the ability of 

people to seek asylum in the United 

States. Likewise, many commenters 

stated that the rule would essentially 

lead to the denial of all asylum claims. 

In addition, commenters also asserted 

that the rule would result in more 

backlogs in the immigration court 

system because more appeals would be 

filed. 

Response: This rule does not in any 

way ‘‘negate’’ the United States’ asylum 

system, prevent aliens from applying for 

asylum, or prevent the granting of 

meritorious claims, contrary to 

commenters’ claims. To the contrary, 

the changes make the asylum system 

more efficient and uniform, and will 

ultimately benefit those with 

meritorious claims. The Department 

agrees with commenters that asylum 

remains an important form of possible 

relief for individuals seeking protection, 

and notes that these changes are needed 

to better address the backlog of pending 

asylum cases and address current 

inefficiencies in the asylum system. See, 

e.g., EOIR, Adjudication Statistics: Total 

Asylum Applications (July 14, 2020), 

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

1106366/download. In addition, this 

rule will help ensure that the system is 

more effective for those who truly have 

‘‘nowhere else to turn.’’ Matter of B–R–, 

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

(internal citations omitted). 

Additionally, the Department rejects 

the assertion that this rule will lead to 

further backlogs. The Department has 

made or proposed numerous regulatory 

changes recently to address 

inefficiencies where appropriate, and 

this rule is another tool to do so. See, 

e.g., Appellate Procedures and 

Decisional Finality in Immigration 

Proceedings; Administrative Closure, 85 

FR 52491 (Aug. 26, 2020) (proposed) 

(addressing inefficiencies in case 

adjudications at the Board of 

Immigration Appeals (BIA)); Expanding 

the Size of the Board of Immigration 

Appeals, 85 FR 18105 (Apr. 1, 2020) 

(interim rule) (adding two member 

positions to the BIA so that the BIA may 

more efficiently and timely adjudicate 

appeals); Organization of the Executive 

Office for Immigration Review, 84 FR 

44537 (Aug. 26, 2019) (interim rule) 

(providing, in part, for more efficient 

disposition of cases through a 

delegation of authority); EOIR Electronic 

Filing Pilot Program, 83 FR 29575 (June 

25, 2018) (public notice) (creating a 

pilot program to test an electronic filing 

system that would greatly improve 

immigration adjudication processing in 

the immigration courts and eventually 

the BIA). Overall, the Department 

believes that the rule will not exacerbate 

inefficiencies considering all changes in 

the aggregate. Moreover, commenters’ 

prediction that more appeals will be 

filed because of the rule is purely 

speculative and ignores the case-by-case 

way in which asylum applications are 

adjudicated. 

Comment: Some commenters 

expressed concerns with the 

Department’s exercise of authority and 

jurisdiction related to the rule. For 

example, commenters stated that 

Congress, not the Department, must be 

the entity to 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 province of 


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Congress, including commenters’ belief, 

as mentioned above, that the rule would 

effectively end or eliminate asylum 

availability and limit how many asylum 

seekers would get 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 only be undertaken by Congress. 

Other commenters asserted that the 

Department should not amend its 

regulations in such close proximity to a 

presidential election. 

Response: To the extent that 

commenters intimated that the 

Department should adhere to laws 

passed by Congress regarding asylum 

adjudications such as INA 

208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii), which is incorporated 

into the rule, the Department agrees that 

it should effectuate the laws passed by 

Congress. Commenters are incorrect, 

however, that Congress, not the 

Department, must make the sorts of 

changes to the asylum procedures set 

out in the proposed rule. Both the 

proposed rule and this final rule are 

issued pursuant to the Attorney 

General’s statutory authority provided 

by Congress. See INA 103(g) and 

208(d)(5)(B), 8 U.S.C. 1103(g) and 

1158(d)(5)(B). Despite commenters’ 

statements, the provisions of the rule are 

consistent with the Act. Should 

Congress enact legislation that amends 

the provisions of the Act that are 

interpreted and affected by this rule, the 

Department will engage in future 

rulemaking as needed. 

The Department also rejects 

commenters’ argument that the 

Department’s authority to engage in 

rulemaking is related to the relative 

timing of a presidential election. The 

APA already allows for democratic 

input in agency decision-making 

through the required notice and 

comment procedures. See 5 U.S.C. 

553(c). Moreover, the Supreme Court 

has stated that ‘‘an agency to which 

Congress has delegated policy-making 

responsibilities may, within the limits 

of that delegation, properly rely on the 

incumbent administration’s views of 

wise policy to inform its judgments.’’ 

Chevron, U.S.A., Inc. v. Natural Res. 

Def. Council, Inc., 467 U.S. 837, 865 

(1984). As such, it is irrelevant that the 

presidential election was set to occur in 

close proximity to the rule’s publication 

and comment period. Further, there is 

no law suspending rulemaking within a 

certain period before a presidential 

election, and the American system of 

government does not generally 

countenance the cessation of work on 

important policies for an extended 

period of time, such as a presidential 

election cycle. 

Comment: Many commenters also 

expressed broad concern that the rule 

would erode aliens’ due process rights 

in immigration court proceedings. 

Specifically, commenters asserted that 

the rule would diminish aliens’ due 

process rights by rushing the asylum 

process and by making it more difficult 

for them to have enough time to obtain 

representation, pay fees, or gather 

records. 

Response: Commenters are incorrect 

that the rule will impede aliens’ due 

process rights in the manner speculated 

by commenters. It should be noted that 

EOIR’s mission remains ‘‘to adjudicate 

immigration cases by fairly, 

expeditiously, and uniformly 

interpreting and administering the 

Nation’s immigration laws.’’ EOIR, 

About the Office (Aug. 14, 2018), 

https://www.justice.gov/eoir/aboutoffice. In other words, the Department 

must balance fairness concerns with the 

countervailing need for efficiency and 

expeditiousness in EOIR proceedings. 

Although the rule changes timing and 

other procedural requirements, the rule 

does not deny due process to any alien. 

Due process in an immigration 

proceeding requires notice and a 

meaningful opportunity to be heard, 

neither of which are affected by this 

rule. 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.’’). 

None of the changes in the rule limit 

aliens in immigration proceedings 

before EOIR from obtaining 

representation, presenting evidence, or 

applying for immigration relief such 

that it violates their due process rights. 

3. Violates International Law 

Comment: Several commenters were 

concerned that the rule violates the 

United States’ ostensible obligations 

under international law, citing the 1948 

Universal Declaration of Human Rights 

(‘‘UDHR’’), the 1951 Convention relating 

to the Status of Refugees (‘‘1951 Refugee 

Convention’’), the 1967 Protocol relating 

to the Status of Refugees (‘‘1967 

Protocol’’), and the CAT. Specifically, 

commenters asserted that the rule 

violates the international right to seek 

asylum, the principle of nonrefoulement, and the international 

obligation to provide fair and efficient 

asylum procedures. 

Commenters stated that the rule’s 

provisions implementing a 15-day filing 

deadline, requiring an asylum 

application fee, and mandatorily 

rejecting incomplete applications 

violates the applicant’s right to seek 

asylum and the United States’ nonrefoulement obligations. Commenters 

explained that the 15-day deadline was 

too short and would prevent asylum 

seekers from applying for asylum or 

accessing legal representation, thereby 

subjecting them to the possibility of 

return to a country where their life or 

freedom may be threatened. 

Commenters also stated that the 15-day 

filing deadline, when read in 

conjunction with the Department’s other 

recently proposed asylum rules, would 

create a categorical bar to asylum for 

many asylum seekers in violation of the 

applicant’s right to seek asylum. 

Similarly, commenters stated that 

requiring an asylum application fee 

would prevent asylum seekers from 

applying for asylum and that the 

Department should include an incomebased or other exception. Commenters 

noted that only three other countries 

impose an asylum fee but that even 

those countries allowed for exceptions. 

Commenters stated that requiring such a 

fee without an exception raises the risk 

of refoulement. 

Commenters likewise argued that 

mandatorily rejecting incomplete 

applications would subject applicants to 

potential refoulement for even minor 

omissions, such as failing to complete a 

field on the Form I–589 that is not 

applicable to the applicant. One 

commenter noted that the 1951 Refugee 

Convention obligates countries to give 

applicants the benefit of the doubt, 

which should apply to minor errors or 

omissions on the form. 

Lastly, commenters stated that the 

rule does not provide for fair and 

efficient procedures, which commenters 

explain are an essential element in 

applying the 1951 Refugee Convention 

and related international obligations. 

Commenters explained that 

implementing these standards includes 

providing a realistic opportunity for 

asylum seekers to have their claims 

developed, heard in full, and fairly 

decided. Commenters alleged that the 

15-day filing deadline, the mandatory 

rejection of incomplete applications, the 

charging of asylum application fees, and 

the 180-day adjudication deadline are 

not fair procedures because they do not 

take into account the difficulties and 

needs of asylum-seekers, such as lack of 

English language skills, lack of counsel, 

unfamiliarity with the U.S. legal system, 

and the lasting effects of trauma, among 

others. Rather, commenters alleged that 

the changes appear to be intended to 

prevent asylum seekers from applying 

for relief. 

Response: This rule is consistent with 

the United States’ obligations as a party 


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18Comments objecting to that fee are beyond the 

scope of the rule and the Department generally. 

Whether a fee is required for the Form I–589 is a 

matter determined by DHS, not by the Department. 

See 8 CFR 1103.7(b)(4)(ii). DHS issued a final rule 

imposing a $50 fee for asylum applications—other 

than for genuine unaccompanied alien children 

(UAC) who file for asylum while in immigration 

proceedings before EOIR—that was scheduled to go 

into effect on October 2, 2020. U.S. Citizenship and 

Immigration Services Fee Schedule and Changes to 

Certain Other Immigration Benefit Request 

Requirements, 85 FR at 46791. That rule was 

enjoined on September 29, 2020, Immigrant Legal 

Res. Ctr. v. Wolf, --- F. Supp. 3d ----, 2020 WL 

5798269 (N.D. Cal. 2020). See supra. While that 

injunction is in effect, EOIR cannot charge a fee for 

asylum applications in its proceedings. Further 

discussion of the rule’s provisions regarding the 

requirement of aliens to pay a fee is below in 

section II.c.4.d. 

19This rule only provides that ‘‘a fee must be 

submitted if DHS requires one.’’ As DHS noted in 

its final rule regarding a fee for an asylum 

application: ‘‘No fee would apply where an 

applicant submits a Form I–589 for the sole purpose 

of seeking withholding of removal under INA 

section 241(b)(3), 8 U.S.C. 1231(b)(3), or protection 

from removal under the regulations implementing 

U.S. obligations under Article 3 of the Convention 

Against Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment (CAT).’’ 85 FR 

at 46793 n.17. As noted, supra, the DHS final rule 

is currently enjoined and, thus, has not yet taken 

effect. 

to the 1967 Protocol, which incorporates 

Articles 2 through 34 of the 1951 

Refugee Convention. 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. These 

treaties are not directly enforceable in 

U.S. law, but some of their obligations 

have been implemented by domestic 

legislation and implementing 

regulations. See INS v. Stevic, 467 U.S. 

407, 428 & n.22 (1984); Al-Fara v. 

Gonzales, 404 F.3d 733, 743 (3d Cir. 

2005) (‘‘The 1967 Protocol is not selfexecuting, nor does it confer any rights 

beyond those granted by implementing 

domestic legislation.’’); Foreign Affairs 

Reform and Restructuring Act of 1998 

(‘‘FARRA’’), Public Law 105–277, sec. 

2242(b), 112 Stat. 2681, 2631–822 (8 

U.S.C. 1231 note); 8 CFR 208.16(b) and 

(c), 208.17 and 208.18; 1208.16(b) and 

(c), 1208.17, and 1208.18. Similarly, the 

UDHR does not create enforceable 

obligations on its own. Sosa v. AlvarezMachain, 542 U.S. 692, 734 (2004) (‘‘But 

the [UDHR] does not of its own force 

impose obligations as a matter of 

international law.’’). 

The Department disagrees that this 

rule contravenes the UDHR’s article 

stating that everyone has the right to 

seek asylum protections in other 

countries. The rule does not prohibit 

anyone from seeking asylum. Instead, 

the rule simply requires all applicants to 

comply with established filing 

requirements, including, for aliens in 

asylum-and-withholding-only 

proceedings, complying with delineated 

filing deadlines. Further, in the rare 

instances where an applicant has good 

cause to miss the filing deadline, the 

immigration judge may extend the filing 

deadline after considering the relevant 

facts. 

Immigration laws should enable the 

granting of immigration relief or 

protection to eligible individuals, and 

the prompt removal of those who are 

ineligible. This revision will expedite 

the consideration of meritorious claims 

and help such aliens obtain relief 

quickly while similarly reducing the 

likelihood that those with nonmeritorious claims will be able to 

remain in the United States for longer 

and substantial periods of time. It is in 

the national interest and is consistent 

with U.S. non-refoulement obligations 

that meritorious claims are granted as 

quickly as possible while unwarranted 

claims are similarly screened out 

expeditiously. 

The Department disagrees with 

comments that the rule’s requirement 

that the applicant must pay the required 

fee, if any, for submitting a Form I–589 

for the purposes of asylum violates nonrefoulement obligations.18 Because the 

rule does not impose a fee for statutory 

withholding of removal or protection 

under the CAT regulations,19 the rule 

would still be consistent with the 

provisions of the 1951 Refugee 

Convention, 1967 Protocol, and the 

CAT. 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); Ramirez-Mejia 

v. Lynch, 813 F.3d 240, 241 (5th Cir. 

2016); Maldonado v. Lynch, 786 F.3d 

1155, 1162 (9th Cir. 2015) (explaining 

that Article 3 of the CAT, which sets out 

the non-refoulement obligations of 

signatories, was implemented in the 

United States by the Foreign Affairs 

Reform and Restructuring Act of 1998 

(‘‘FARRA’’) (Pub. L. 105–277, sec. 

2242(b), 112 Stat. 2681, 2631–822 (8 

U.S.C. 1231 note)) and its implementing 

regulations); see also INS v. CardozaFonseca, 480 U.S. 421, 429, 441 (1987) 

(‘‘[Withholding of removal] corresponds 

to Article 33.1 of the Convention . . . . 

[Asylum] by contrast, is a discretionary 

mechanism which gives the Attorney 

General the authority to grant the 

broader relief of asylum to refugees. As 

such, it does not correspond to Article 

33 of the Convention, but instead 

corresponds to Article 34.’’) (emphasis 

in original). 

The Department also notes that 

rejecting incomplete or deficient asylum 

applications does not violate nonrefoulement principles. Again, this rule 

does not alter any applicant’s 

substantive rights regarding eligibility 

for asylum, statutory withholding of 

removal, and protection under the 

regulations issued pursuant to 

legislation implementing the CAT. 

When applicants comply with the filing 

requirements, including submission of a 

completed application, and are 

otherwise eligible for consideration, 

their applications receive full review 

and deliberation. Additionally, even 

where the applicant errs in submitting 

an incomplete application, the applicant 

has the opportunity to correct any 

deficiencies within 30 days. Rejection of 

an application for failure to comply 

with these reasonable filing deadlines 

and requirements does not conflict with 

the United States’ international 

obligations. See, e.g., Hui Zheng v. 

Holder, 562 F.3d 647, 655–56 (4th Cir. 

2009) (‘‘[T]he U.N. Protocol [and] the 

CAT [are] . . . effectuated through a 

statutory scheme that Congress has 

established, and which the Attorney 

General has implemented through 

regulations governing both the BIA and 

the procedures available to aliens 

seeking entry to the United States.’’); 

Yuen Jin v. Mukasey, 538 F.3d 143, 159 

(2d Cir. 2008); Chen v. Mukasey, 524 

F.3d 1028, 1033 (9th Cir. 2008); 

Foroglou v. Reno, 241 F.3d 111, 113 (1st 

Cir. 2001). 

Finally, as stated before, it is widely 

accepted that meritorious claims should 

be granted as rapidly as possible while 

acknowledging that frivolous or 

untenable claims be identified as soon 

as is feasible in the screening process. 

This rule benefits legitimate asylum 

claims by clarifying statutory 

requirements and streamlining the 

asylum process. 

4. Concerns With Changes Regarding I– 

589 Filing Requirements 

a. 15-Day Filing Deadline in Asylumand-Withholding-Only Proceedings 

i. General Opposition to the Deadline 

Comment: The majority of 

commenters expressed opposition to the 

15-day deadline. Commenters asserted 

that establishing a 15-day deadline 

would likely prevent legitimate claims 

from being submitted or would be too 

short for legitimate claims to adequately 

be raised; thus commenters alleged that 

the rule would effectively end the U.S. 

asylum system and ensure deportations. 


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Response: As an initial point, few, if 

any, commenters acknowledged that 

existing regulations have contained a 

10-day application filing deadline for 

many years for a particular category of 

asylum seekers, with no noted 

opposition or complaints. 8 CFR 

1208.5(b)(1)(ii). Similarly, most 

commenters ignored or downplayed the 

rule’s provision of an extension of the 

15-day filing deadline for good cause 

without addressing why the possibility 

of such an extension would not respond 

to concerns about timing. Similarly, 

most commenters asserted that the rule 

required the submission of both an 

application and all supporting 

documents with no further opportunity 

to update or supplement it, but the rule 

requires no such thing. The rule 

requires only the filing of an application 

by a deadline and does not alter existing 

provisions regarding the 

supplementation of an existing 

application. 8 CFR 1208.4(c); cf. Matter 

of Interiano-Rosa, 25 I&N Dec. 264 (BIA 

2010) (distinguishing between the 

submission of an application itself and 

the later submission of supporting 

documents). To the extent that 

commenters ignored or misstated the 

actual provisions of the rule, otherwise 

failed to engage with the safeguards 

provided by the rule, or conflated 

different types of filings, the Department 

acknowledges such comments but 

declines to adopt them based on such 

misapprehensions. 

Further, commenters’ hyperbolic 

statements that the imposition of a filing 

deadline that is nevertheless subject to 

extension somehow effectively 

precludes asylum eligibility or prevents 

the filing of an asylum application are 

without merit. Moreover, such 

statements ignore the reality that those 

with meritorious claims typically want 

their claims heard as quickly as possible 

to avoid evidence becoming stale and to 

receive the benefits associated with 

asylee status. The Department seeks to 

continue extending protection and relief 

to aliens with meritorious claims, but 

the realities of the size of EOIR’s 

pending caseload and the continued 

increase in notices to appear filed in 

immigration court cannot be 

understated. See EOIR, Adjudication 

Statistics: Pending Cases, New Cases, 

and Total Completions (Oct. 13, 2020), 

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

1242166/download. Accordingly, as 

noted in the NPRM, this rule is designed 

to ensure that protection and relief is 

not delayed for meritorious claims and 

that evidence is preserved to the fullest 

extent possible. See 85 FR at 59696 

(‘‘[D]elaying filing of the claim risks 

delaying protection or relief for 

meritorious claims and increases the 

likelihood that important evidence, 

including personal recollections, may 

degrade or be lost over time.’’). The 

Department believes that establishing 

this deadline, as well as availability of 

an extension for good cause and the 

retained ability to supplement or amend 

the application later in proceedings, 

will best facilitate those aims. See 8 CFR 

1208.4(c), (d). 

Further, this deadline appropriately 

eliminates unnecessary delays in what 

should be a streamlined proceeding, 

notwithstanding the possibility of an 

extension for good cause in unusual 

situations. Moreover, as discussed, 

supra, aliens subject to proceedings 

under 8 CFR 1208.2(c)(1) generally are 

detained, and the filing deadline is in 

keeping with the instruction that 

detained aliens should receive 

‘‘expedited consideration’’ of their 

asylum claims. Id. 

Moreover, commenters alleged that 

establishing a 15-day deadline violated 

the APA for various reasons, as has been 

addressed at length, supra. See section 

II.C.4.a.iii for further discussion 

regarding this issue. 

Comment: Commenters expressed 

general opposition to the 15-day 

deadline in light of other regulatory 

changes that commenters alleged would 

drastically increase the number of aliens 

subject to the 15-day filing deadline by 

increasing the number of aliens in 

asylum-and-withholding-only 

proceedings. Commenters explained 

that these changes are contrary to the 

small number of alien crewmembers 

subject to the current 10-day filing 

deadline, to which the Department 

compared the proposed rule. 

For example, commenters cited the 

Department’s proposed joint rule with 

DHS, 85 FR 36264, which commenters 

explained would expand the number of 

aliens subject to asylum-only 

proceedings, would allow immigration 

judges to pretermit asylum applications 

that failed to establish prima facie 

claims for relief, and would expand the 

definition of a ‘‘frivolous’’ claim. 

Commenters stated that the impact of 

this rule and that proposed rule, if 

implemented, would result in a massive 

amount of people subject to the new 

filing deadline. 

Similarly, commenters asserted 

concerns that the Department failed to 

consider the impact of DHS’s expansion 

of expedited removal authority, which 

commenters stated would further 

increase the number of affected aliens. 

See Designating Aliens for Expedited 

Removal, 84 FR 35409 (July 23, 2019); 

see also Make the Rd. New York, 962 

F.3d at 618. 

Response: As an initial point, the 

number of aliens who may be placed in 

asylum-and-withholding-only 

proceedings is both speculative and 

unpredictable because a precise chain of 

events has to occur—involving, inter 

alia, international migration flows, the 

possibility of the exercise of 

prosecutorial discretion, and legal 

determinations by adjudicators—in 

order to reach that result, and those 

events, both discretely and especially in 

combination, cannot be predicted with 

any degree of precision; moreover, 

several links in that chain are wholly 

outside the Department’s control. See 

Home Box Office, Inc. v. FCC, 567 F.2d 

9, 35 n.58 (D.C. Cir. 1977) (per curiam) 

(‘‘Moreover, comments which 

themselves are purely speculative and 

do not disclose the factual or policy 

basis on which they rest require no 

response. There must be some basis for 

thinking a position taken in opposition 

to the agency is true.’’). For example, 

under the recently-finalized joint rule, 

Procedures for Asylum and Withholding 

of Removal; Credible Fear and 

Reasonable Fear Review, signed by the 

Attorney General and the Acting 

Secretary of Homeland Security on 

December 2, 2020, the Department is 

unable to accurately predict the future 

number of aliens who would enter or 

seek to enter the United States illegally, 

be subjected to a credible fear screening 

by DHS, receive a positive credible fear 

determination by either DHS or an 

immigration judge, and, in turn, be 

placed into asylum-and-withholdingonly proceedings. Similarly, DHS has 

autonomy over its own enforcementrelated decisions and is tasked by 

Congress with ‘‘[e]stablishing national 

immigration enforcement policies and 

priorities.’’ Homeland Security Act of 

2002, Public Law 107–296, sec. 402(5), 

116 Stat. 2135, 2178 (codified at 6 

U.S.C. 202(5)). Consequently, the 

Department has neither control over nor 

the means to predict how many aliens 

DHS may subject to expedited removal 

procedures as opposed to other 

enforcement options or the exercise of 

prosecutorial discretion. Thus, while 

the Department is aware that these other 

rules may have some impact on 

immigration proceedings relevant to this 

rule, the size and nature of that impact 

is speculative and unknowable because 

of intervening factors, namely levels of 

illegal immigration and DHS’s exercise 

of its prosecutorial discretion authority. 

Moreover, even if that impact were 

predictable, the Department has 

determined, as a matter of policy, that 


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20The Department notes, however, that to the 

extent commenters argue more aliens will be in 

asylum-and-withholding-only proceedings and 

subject to the 15-day filing deadline in the future, 

such arguments further the Department’s reasoning 

rather than counter it. In other words, the 

Department’s concerns to ensure efficiency, 

accurate recall of claims, and avoiding 

gamesmanship are greater if more proceedings are 

benefited than fewer. 

21Non-supervisory immigration judges are 

subject to a biannual performance work plan based 

on three elements and a combined total of fourteen 

sub-elements. A non-supervisory immigration 

judge’s seven performance measures are one of six 

sub-elements of one of three job elements. Although 

one of the performance measures—i.e., one of seven 

sub-sub-elements of one of six sub-elements of one 

of three elements—is a case completion goal, the 

establishment of a filing deadline has little 

correlation with how many cases an immigration 

judge may ultimately complete. Moreover, the 

failure to meet any performance measure does not 

automatically result in the lowering of an 

immigration judge’s performance rating. For 

instance, for the rating cycle that concluded at the 

end of FY 2019, although not all non-supervisory 

immigration judges met the numeric performance 

measures, every non-supervisory immigration judge 

nevertheless received a performance rating of 

satisfactory for the job element encompassing those 

measures. 

the benefits of the rule—e.g., better 

effectuation of statutory directives, the 

expedited consideration of meritorious 

asylum claims, and the elimination of 

provisions that are immaterial to EOIR— 

far outweigh any negative impacts that 

the rule would have, either singularly or 

in tandem with other rules. 

Moreover, assuming, arguendo, that 

other rules increase the number of 

aliens subject to asylum-andwithholding proceedings under 8 CFR 

1208.2(c), the provisions of this rule 

would remain important to effectuate. 

As discussed, supra, aliens subject to 

proceedings under 8 CFR 1208.2(c) are 

generally subject to detention unless 

paroled by DHS. Both parties, especially 

in cases of aliens with meritorious 

claims, and the immigration courts have 

an interest in the expeditious 

consideration of asylum claims made by 

detained aliens. In fact, current 

regulations already provide for such 

expedited consideration, 8 CFR 

1208.5(a), and commenters did not 

explain why detained aliens should not 

receive expedited consideration of their 

asylum claims nor challenge the 

application of 8 CFR 1208.5(a). In short, 

regardless of whether the rule is 

considered alone or in conjunction with 

other rules, it simply reaffirms the 

importance of well-established 

principles, namely adhering to statutory 

deadlines and providing expedited 

consideration of asylum claims for 

detained aliens, particularly for 

meritorious claims. Commenters’ 

suggestions that the Department should 

depart from these principles are 

unpersuasive. 

Furthermore, the Department’s 

reasoning for the 15-day deadline does 

not rely on or involve the number of 

aliens who may be affected. In other 

words, the proposed rule at 85 FR 

36264—nor the finalized rule, 

Procedures for Asylum and Withholding 

of Removal; Credible Fear and 

Reasonable Fear Review, signed by the 

Attorney General and the Acting 

Secretary of Homeland Security on 

December 2, 2020—had no bearing on 

the reasoning underlying the deadline 

in the rule at hand. In the proposed rule, 

85 FR at 59693–94, the Department 

explained that aliens in asylum-andwithholding-only proceedings are 

‘‘generally already subject to removal 

orders, denials of applications for 

admission, or denials of permission to 

land in the case of crewmembers, and 

are often also detained . . . . [T]heir 

only avenues for relief or protection are 

applications for asylum, statutory 

withholding of removal, and protection 

under the regulations issued pursuant to 

legislation implementing U.S. 

obligations under the [CAT ] . . . and 

they would not be in asylum-andwithholding-only proceedings if they 

had not already claimed a fear of 

persecution or torture upon being 

returned to their home countries.’’ The 

Department subsequently concluded 

that because asylum and withholding of 

removal are the ‘‘sole issues to be 

resolved in the proceeding and are 

squarely presented at the outset of the 

proceeding . . . there is no reason not 

to expect the alien to be prepared to 

state his or her claim as quickly as 

possible.’’ 85 FR at 59694. In addition, 

the Department provided further 

reasoning for its decision to establish a 

deadline: Delayed filing risks delayed 

protection or relief for meritorious 

claims; delayed filing increases the 

likelihood that evidence may degrade or 

be lost; and applicants may simply 

delay proceedings, thus causing 

inefficiencies in what should be a 

streamlined proceeding. See id. The 

Department also noted that a deadline 

was consistent with current regulations 

establishing a 10-day deadline for 

detained crewmembers to file an asylum 

application, 8 CFR 1208.5(b)(1)(ii), and 

directing the agency to provide 

‘‘expedited consideration’’ to asylum 

applications filed by detained aliens, 8 

CFR 1208.5(a). Id. None of these factors 

relies upon or is altered based on the 

number of aliens subject to proceedings 

under 8 CFR 1208.2(c)(1).20

Comment: Commenters claimed the 

rule’s inclusion of the possibility of an 

extension of the filing period for good 

cause was disingenuous for several 

reasons. First, commenters claimed that 

case quotas and performance metrics 

would incentivize judges to deny 

requests for extensions. Second, 

commenters claimed that adjudicating 

an extension request, which takes time 

and effort from all parties involved, did 

not align with the Department’s 

purported aims of streamlining the 

process. 

Response: As an initial point, 

immigration judges are not subject to 

any performance metric related to the 

length of a case adjudication; thus, 

whether they would grant an extension 

or not would have no bearing on any 

applicable performance measure.21 Even 

if immigration judges were subject to a 

performance measure that was relevant 

to the rule, immigration judges are well 

aware that it is not appropriate to base 

continuance or extension decisions 

solely on case-completion goals. See, 

e.g., Matter of L–A–B–R–, 27 I&N Dec. 

405, 416–17 (A.G. 2018) (stating that it 

is inappropriate to base a decision on a 

continuance request solely on case 

completion goals). As discussed, supra, 

commenters’ suggestions that 

immigration judges are biased or 

incompetent and will either ignore 

applicable law or will make decisions 

on factors other than the record and the 

law are not well-taken. The Department 

is confident that EOIR’s immigration 

judge corps adheres to the highest levels 

of professionalism and will continue to 

apply their independent judgment and 

discretion, 8 CFR 1003.10(b), when 

evaluating good cause in relation to 

requests for extensions. Further, 

immigration judges regularly adjudicate 

requests for continuances as part of their 

duties, and there is no reason to expect 

that any new requests as a result of this 

rule would exacerbate the time required 

for adjudication of these motions. 

Comment: Multiple commenters 

alleged that the extension for good cause 

was limited to 10 days and disagreed 

with a 10-day limit. 

Response: Commenters misread the 

rule. The extension for good cause is not 

limited to 10 days; rather, the 

immigration judge in his or her 

discretion determines the length of the 

extension. 

ii. 15 Days Is Too Short 

(1) Evidence-Related Concerns 

Comment: Commenters asserted that a 

15-day deadline is an improper solution 

to the Department’s evidence concerns 

because 15 days is insufficient to collect 

relevant evidence. Commenters 

explained that gathering evidence— 

including declarations, corroborating 

documents such as medical and police 


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22As of October 23, 2020—and excluding aliens 

detained in the Institutional Hearing Program and 

the Migrant Protection Protocols program, detained 

aliens with competency issues, and detained UAC 

in the custody of the Department of Health and 

Human Services—the median time between the 

issuance of a notice to appear for a detained alien 

and the filing of a notice to appear with an 

immigration court is seven days, and the median 

time between the receipt of a notice to appear for 

a detained alien and that alien’s first hearing is 

sixteen days. Thus, detained aliens will, on average, 

have 23 days before the 15-day deadline even 

begins to run, and commenters did not persuasively 

explain why 38 days, which is more than five 

weeks and may be extended due to good cause, is 

an insufficient amount of time for an alien to file 

an asylum application, especially for an alien who 

has recently made a claim of a fear of return to his 

or her country of nationality. 

23For example, aliens who have overstayed an 

authorized period of admission under the Visa 

Waiver Program (VWP) and later seek asylum under 

8 CFR 1208.2(c)(1)(iv) may have already spent years 

in the United States prior to applying for asylum 

and, thus, will have already had ample time to 

prepare their case. See, e.g., Matter of D–M–C–P–, 

26 I&N Dec. 644, 644–45 (BIA 2015) (alien admitted 

under the VWP in 1999 but did not make an asylum 

claim in proceedings under 8 CFR 1208.2(c)(1) until 

2011). 

24Although DHS does not have a duty to provide 

an asylum application to a detained alien pending 

a credible fear determination, it may do so upon 

request. 8 CFR 208.5(a). Thus, aliens may be able 

to obtain an asylum application even before a 

credible fear determination. Even in cases in which 

DHS does not provide an asylum application while 

a credible fear determination is pending, once a 

detained alien receives a positive credible fear 

determination—and, thus, may become subject to 

proceedings under 8 CFR 1208.2(c)(1)—DHS would 

provide an application at that point consistent with 

8 CFR 208.5(a). Moreover, although it was not 

addressed by commenters, the Department notes 

that, in conjunction with DHS, it proposed a rule 

in June 2020 that was recently finalized, Procedures 

for Asylum and Withholding of Removal; Credible 

Fear and Reasonable Fear Review, signed by the 

Attorney General and the Acting Secretary of 

Homeland Security on December 2, 2020, and—if 

it goes into effect, see note 12, supra—would 

explicitly codify this requirement and ensure that 

it applies to aliens in detention following the 

receipt of a positive credible fear determination. 85 

FR at 36267 (‘‘Additionally, to ensure that these 

claims [i.e., asylum claims by aliens who have 

received a positive credible determination and are 

subject to proceedings under 8 CFR 1208.2(c)(1)] 

receive the most expeditious consideration 

reasonably possible, the Departments propose to 

amend 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.’’). In short, 

all detained aliens subject to proceedings under 8 

CFR 1208.2(c)(1) will have already received an 

asylum application before those proceedings 

commence and before the first hearing is even 

scheduled. Thus, aliens subject to the rule will 

actually receive more than 15 days to file an asylum 

application, even without an extension under 8 CFR 

1208.4(d). 

reports, letters from witnesses, country 

conditions documentation, and reports 

from expert witnesses—and then paying 

for certain documents to be translated 

takes much longer than 15 days, 

especially considering that evidence 

may be located abroad or possessed by 

a foreign government. 

Commenters stated that the 

government should have an interest in 

considering the complete facts of a 

claim. Commenters alleged, however, 

that immigration judges would not have 

all of the evidence before them for 

consideration because (1) aliens would 

be unable to submit evidence in such a 

short timeframe, or (2) the short 

deadline would rush aliens and 

inevitably cause contradictions or 

omissions in the evidence, thereby 

creating unnecessary false credibility 

issues. 

Commenters explained that aliens 

who need or request more than 15 days 

are not trying to circumvent the 

immigration process; rather, those aliens 

seek to engage in the legal immigration 

process by gathering all relevant 

information and evidence for their 

claim, which commenters emphasized 

takes longer than 15 days. Further, 

commenters explained that aliens who 

unnecessarily delay their proceedings 

accept the risk of degradation or loss of 

evidence. Commenters stated that such 

concern should incentivize aliens to act 

efficiently but does not warrant a 15-day 

deadline. 

Response: As discussed, supra, 

commenters either misread the rule or 

misstated its contents. Nothing in the 

rule requires that all supporting 

evidence be submitted within 15 days. 

Nothing in the rule precludes amending 

or supplementing an application after it 

has been filed in accordance with 

existing regulations. Further, nothing in 

the rule requires an immigration judge 

to render a decision within 15 days or 

to schedule a hearing at any particular 

time, subject to the general deadline 

contains in INA 208(d)(5)(A)(iii), 8 

U.S.C. 1158(d)(5)(A)(iii). 

Similarly, commenters did not 

address why aliens in proceedings 

under 8 CFR 1208.2(c)(1), who are the 

one of the subjects of the rule, should 

not receive expedited consideration of 

their asylum claims because they are 

detained. The rule ensures that such 

aliens receive expedited consideration 

of their applications consistent with 

existing regulations, 8 CFR 1208.5(a), 

but it does not alter an alien’s ability to 

submit evidence in support of an 

application. 

The rule does not limit evidencegathering to 15 days; rather, it requires 

the application and available supporting 

evidence to be submitted within 15 days 

of the alien’s first hearing before the 

immigration judge. See 8 CFR 1208.4(d) 

(‘‘[T]he immigration judge . . . shall set 

a deadline of fifteen days from the date 

of the alien’s first hearing before an 

immigration judge by which the alien 

must file an asylum application’’). The 

Department believes the 15-day 

deadline appropriately balances the 

concern regarding risk of degradation or 

loss of evidence with the need to 

provide adequate time for preparation 

and the need to provide expedited 

consideration of the claims of detained 

aliens, especially those with meritorious 

claims. 

The Department notes that the 15-day 

deadline begins from the date of the 

alien’s first hearing with the 

immigration judge, which may not 

occur until several weeks after the alien 

was first encountered by DHS 22 and, in 

some cases, until after the alien has 

already resided in the United States for 

an extended length of time.23 Thus, 

contrary to commenters’ suggestions, 

aliens are not limited to a 15-day period 

to prepare an application or to gather 

evidence, and many aliens will have 

had a considerably longer period of time 

to prepare their claims. In fact, some 

aliens subject to the rule will have 

already filed an asylum application 

even before the 15-day deadline begins. 

Compare 8 CFR 1208.2(c)(1)(i) (alien 

crewmembers subject to asylum-andwithholding-only proceedings before an 

immigration judge), with 8 CFR 

1208.5(b)(1)(ii) (requiring an alien 

crewmember seeking asylum to file the 

application with DHS first—and giving 

the alien ten days to do so, subject to an 

extension for good cause—before being 

placed in proceedings under 8 CFR 

1208.2(c)(1)). Moreover, aliens in DHS 

custody who express a desire to seek 

asylum or a fear of return are provided 

an asylum application at that time,24

and that expression necessarily occurs 

before an alien is placed in proceedings 

under 8 CFR 1208.2(c)(1) or (2) and 

before the alien’s first hearing is 

subsequently scheduled. 8 CFR 208.5(a), 

1208.5(a). Thus, aliens will always have 

had time beyond the 15-day deadline in 

order to complete the application, and 

few, if any, commenters acknowledged 

this additional time in their opposition 

to the rule. 

Additionally, the aliens affected by 

the 15-day filing deadline have 

necessarily already considered and 

made a claim for asylum or protection, 

either through the credible fear process 

or when faced with removal or the 

denial of an application for admission 

under other provisions. Accordingly, 

there is no reason to believe—and 

commenters did not provide one—that 

such aliens cannot memorialize the 

claim they recently made on an asylum 

application. To the contrary, the 

Department expects that aliens with 

meritorious claims will generally 

welcome the opportunity to have their 


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claims heard expeditiously by an 

immigration judge so that they may 

obtain protection and the benefits of 

asylum as quickly as possible. 

The Department again emphasizes 

that the alien may also seek an 

extension of the filing deadline for good 

cause. 8 CFR 1208.4(d). Thus, in 

appropriate circumstances, an alien may 

receive an extension of the deadline in 

which to file an application, obviating 

the concerns connected to many of the 

hypothetical scenarios raised by 

commenters. 

The Department also reiterates that 

aliens may amend or supplement the 

application later in proceedings, 

pursuant to an immigration judge’s 

discretion. Accordingly, aliens and 

counsel are welcome to begin gathering 

evidence, including translating or 

coordinating delivery of certain 

documents as referenced by 

commenters, at any time and, subject to 

any separate filing deadlines set by the 

immigration judge, may submit 

additional supporting evidence as it 

becomes available. 

The Department also notes that an 

alien’s testimony alone ‘‘may be 

sufficient to sustain the applicant’s 

burden without corroboration, but only 

if the applicant satisfies the trier of fact 

that the applicant’s testimony is 

credible, is persuasive, and refers to 

specific facts sufficient to demonstrate 

that the applicant is a refugee.’’ INA 

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

1158(b)(1)(B)(ii). Thus, particularly for 

meritorious claims, an alien may not 

need extensive documentation to 

support his or her claim because an 

alien can meet the relevant burden of 

proof through credible, persuasive, and 

specific testimony. Commenters did not 

explain why aliens who would testify 

credibly, persuasively, and specifically 

would need lengthy amounts of time to 

file an application or to obtain 

supporting documentation, and the 

Department is unaware of any such 

reasons. 

The deadline itself does not preclude 

an immigration judge’s full 

consideration of the facts of a claim. 

Because applicants for asylum and for 

withholding of removal bear the full 

burden of proof, see INA 240(c)(4)(A), 8 

U.S.C. 1229a(c)(4)(A) (asylum); INA 

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

(withholding of removal), the alien is 

responsible for ensuring that the 

immigration judge has all relevant facts 

to consider. If, for example, an alien 

needs additional time to file an 

application, the alien may request an 

extension for good cause. 8 CFR 

1208.4(d). Likewise, if the application 

needs to be amended or supplemented 

later in the proceedings due to 

evidence-issues, the alien may request 

to amend or supplement the 

application. 8 CFR 1208.4(c). Similarly, 

nothing in the rule prohibits an 

immigration judge from granting a 

continuance to obtain corroborating 

evidence in appropriate cases. Matter of 

L–A–C–, 26 I&N Dec. 516 (BIA 2015). 

Moreover, the rule itself provides that 

immigration judges themselves may 

submit relevant evidence consistent 

with their duty to develop the record in 

appropriate circumstances. Through 

these mechanisms, the Department 

provides aliens a full opportunity to 

present all relevant facts to an 

immigration judge within the deadline, 

and there is no reason why the 

establishment of a filing deadline for the 

application—as opposed to supporting 

documents—would necessarily create a 

credibility issue for the alien. 

Although the rule referenced the 

possibility that, without a deadline, 

aliens may attempt to delay 

proceedings, the Department does not 

believe that is the case for all aliens, nor 

did the rule exclusively consider or rely 

on that point in establishing the 

deadline. For the reasons discussed 

above and in section II.C.4.a.iii, the 

Department established the deadline 

and believes 15 days is an appropriate 

timeframe in which an alien must file 

an application. The Department 

disagrees with the commenters’ 

conclusion that evidence-related risks 

should simply incentivize aliens to 

reduce delays or else accept those risks. 

The impact of delayed proceedings 

reaches far beyond the alien’s case; 

delays result in inefficiencies that affect 

the entire immigration system. See 

generally 85 FR at 59694. In part for that 

reason, the rule established the 15-day 

deadline rather than rely on aliens 

responding to incentives or accepting 

the risks associated with delays. 

(2) Events Outside of the Alien’s Control 

Comment: Commenters argued that 

the 15-day filing deadline is too short in 

effect due to various circumstances 

outside of the alien’s control that may 

preclude submission of the application 

within the required time period. 

Commenters explained that the U.S. 

Postal Service (‘‘USPS’’) or other 

carriers may be delayed. Relatedly, 

commenters said that aliens’ documents 

may have been lost or stolen in transit 

to the United States. 

Some commenters also alleged that 

DHS would seize documents at the 

border, such that aliens would no longer 

have them in their possession to include 

with an application for protection or 

relief. 

Response: As an initial point, the 

Department notes that filing delays and 

missing filing deadlines due to thirdparty carriers such as the USPS are 

already a possibility in the current 

system for considering asylum 

applications, and the rule does not alter 

that risk. The Department is also 

unaware of any systemic issues with 

third-party carriers delaying filings, and 

any isolated anecdotal instances 

identified by commenters are 

redressable through existing procedures 

such as a motion to accept an untimely 

filing. Immigration Court Practice 

Manual, ch. 3.1(d)(ii), (iii) (July 2, 2020). 

Moreover, as discussed supra, most 

aliens subject to the filing deadline will 

be detained. Because detained hearings 

are generally expedited, there is a 

greater possibility that the alien will be 

able to file the application directly with 

the court and, thus, not need to rely on 

an outside carrier. Nevertheless, even in 

cases in which there is a legitimate 

carrier delay, nothing in the rule 

precludes an alien from filing either a 

motion to accept the untimely filing, id., 

or an extension of the filing deadline, 8 

CFR 1204.8(d). 

In addition, the Department 

emphasizes that an alien may begin the 

application at any time. The 15-day 

deadline is merely 15 days from the date 

of the first hearing with the immigration 

judge; thus, aliens are not prohibited 

from beginning an application prior to 

the first hearing, nor are they limited to 

only a single 15-day period to gather 

evidence. As noted above, detained 

aliens will have already a copy of an 

asylum application from DHS prior to 

their first hearing before an immigration 

judge and, thus, will have had already 

more than 15 days to complete the 

application even without an extension. 

The Department is unaware of any 

practice by DHS of routinely seizing 

documents from aliens at the border and 

failing to maintain or to return them, as 

appropriate. In the Department’s 

experience, any documents seized from 

aliens that are not returned are 

maintained in DHS’s administrative file 

on the alien and are available to the 

DHS attorney representing the agency 

before the immigration judge. 

Mechanisms for DHS to return 

documents to aliens in custody are 

substantially beyond the scope of the 

rule. Nevertheless, as officers of the 

court with an interest in justice in all 

immigration proceedings, the 

Department expects that DHS attorneys 

would submit any probative evidence in 

DHS’s possession in the course of a 

proceeding under 8 CFR 1208.2(c)(1) or 

(2) and would ensure that no 


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25 If the recent joint rulemaking, Procedures for 

Asylum and Withholding of Removal; Credible Fear 

and Reasonable Fear Review, signed by the 

Attorney General and the Acting Secretary of 

Homeland Security on December 2, 2020, goes into 

effect, the substantive portion of the Form I–589 

will increase to thirteen pages, though only nine of 

those pages call for information about an alien’s 

claim. 

26The Department also notes there is a plethora 

of information regarding asylum available to aliens 

in multiple languages from pro bono or nonprofit 

organizations or from international organizations. 

For example, the UNHCR maintains a Spanishlanguage translation of the instructions for the Form 

I–589, https://www.unhcr.org/585ae89c4.pdf (last 

visited Dec. 4, 2020), and multiple advocacy 

organizations within the United States, including 

ones affiliated with commenters opposing the rule, 

have created Spanish-language versions of the form 

itself, e.g., Immigration Justice Campaign, I–589 in 

Spanish, https://immigrationjustice.us/get-trained/ 

asylum/application-declaration-evidence/sample-i589-in-spanish/ (last visited Oct. 31, 2020). 

Although non-English versions of the I–589 are not 

official, they reflect a much greater availability of 

information to asylum seekers in languages other 

than English—and thus a greater capacity to 

complete the form in a timely manner—than most 

commenters acknowledged. 

misrepresentations are made to an 

immigration judge. 

Comment: Commenters explained that 

it usually takes USCIS three to five 

weeks to issue the receipt that the rule 

requires be attached to a ‘‘complete’’ 

application; thus, submitting a complete 

application within 15 days is impossible 

and outside of a practitioner’s or alien’s 

control. 

Response: The Department 

acknowledges the commenters’ 

concerns regarding timing with USCIS 

to receive a fee receipt, although in the 

Department’s experience, USCIS 

typically provides a one-day turnaround 

in issuing fee receipts and most receipts 

are issued within seven days. Moreover, 

USCIS allows electronic payment for 

some of its most common applications, 

USCIS, Forms Available to File Online 

(June 11, 2020), https://www.uscis.gov/ 

file-online/forms-available-to-fileonline, and the Department does not 

know whether USCIS intends to allow 

electronic payment for asylum 

applications if the injunction on 

charging a fee is lifted. Nevertheless, in 

response to commenters’ concerns, the 

Department has amended 8 CFR 

1208.4(d) and related cross-references to 

that regulation to allow for submission 

of alternative proof of payment in the 

event that an alien has not received a fee 

receipt from USCIS within the filing 

deadline. See section I.C.1 for further 

discussion regarding this change. 

(3) Concerns Related to the Complexity

of the Form I–589

Comment: Commenters argued that 

the 15-day filing deadline is too short 

due to the complexity of the Form I–589 

and most applicants’ lack of Englishlanguage proficiency. Commenters 

explained that aliens must usually find 

a translator, interpreter, and counsel to 

fill out the form and prepare certain 

documents. Commenters alleged that 

this process often takes weeks but that 

such assistance is crucial. 

Response: Again, the Department 

notes that regulations have contained a 

10-day application filing deadline for

many years for a particular category of

asylum seekers, with no noted

opposition or complaints, including

concerns about the complexity of the

form or its requirement to be completed

in English. 8 CFR 1208.5(b)(1)(ii).

Further, as discussed above, the rule

provides an alien an opportunity to

request an extension of the deadline if

the alien needs additional time to

complete the form. Additionally, most

aliens with pending asylum cases, 85

percent, have representation, and an

alien’s representative can assist with

completing the application or, as

appropriate, requesting an extension of 

the filing deadline. EOIR, Current 

Representation Rates (Oct. 13, 2020), 

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

1062991/download. 

As discussed, supra, in practice, 

aliens subject to the rule will have 

additional time beyond 15 days to 

complete an asylum application, even 

without an extension, and the 

Department disagrees with commenters 

that the Form I–589 is too complex for 

aliens to complete within weeks. The 

substantive portion of the Form I–589 is 

currently eight pages, half of which call 

for biographic information and half of 

which request information about the 

alien’s claim.25 Tens of thousands of 

aliens—and hundreds of thousands in 

recent years, EOIR, Total Asylum 

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

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

download—whose first language is not 

English file for asylum every year, and 

there is simply no indication that 

applicants cannot complete the 

application and file it within a few 

weeks.26 In short, although the 

Department acknowledges the 

commenters’ concerns and has fully 

considered, they are ultimately 

unpersuasive. 

The Department believes the 15-day 

deadline provides sufficient time for the 

alien, in coordination with counsel, an 

interpreter, or translator if the alien so 

chooses, to apply for relief, particularly 

because the actual deadline will be 

more than 15 days in practice and 

because an alien may request an 

extension as appropriate. Further, the 

Department reiterates that the 15-day 

timeframe begins from the date of the 

first hearing before the immigration 

judge. An alien is not precluded from 

beginning the application or seeking 

assistance from counsel, an interpreter, 

or a translator to prepare the application 

before the first hearing. 

(4) Concerns Related to Aliens’ Personal

Circumstances and Challenges

Comment: Commenters also 

explained that aliens often have limited 

financial resources, are usually 

uneducated or even illiterate, have 

experienced trauma, and are in need of 

mental health resources. Considering 

those facts, commenters explained that 

15 days was especially insufficient to 

secure representation or complete the 

form on their own, let alone pay the 

filing fee. 

Response: For many of the same 

reasons noted above, the Department 

finds these concerns to be both gross 

generalizations and unpersuasive. The 

Department does not have data—and 

commenters did not provide any—and, 

thus, declines to agree with a blanket 

characterization that most aliens 

applying for asylum are illiterate or in 

need of mental health treatment. 

Further, commenters raising these 

issues did not engage with, inter alia, 

the existence of a longstanding 10-day 

deadline for filing an asylum 

application for a particular category of 

applicants, 8 CFR 1208.5(b); the 

availability of an extension of the 15- 

day deadline for good cause; the fact 

that most aliens applying for asylum are 

represented; the fact that all aliens 

subject to the rule will, in reality, have 

more than 15 days to file the 

application; the demonstrated ability of 

approximately 200,000 aliens to file for 

asylum in FY 2019 and FY 2020; the 

desire of aliens with meritorious claims 

to have those claims adjudicated 

quickly; the longstanding regulatory 

directive to complete asylum cases of 

detained aliens expeditiously; and, the 

risks associated with needless delays in 

asylum adjudications, including the 

degradation of evidence. To the extent 

that commenters posited hypothetical 

scenarios about particular 

characteristics of aliens, the Department 

notes that if such scenarios are reflected 

by actual applicants, then the 

immigration judge can consider whether 

any of the factors referenced by the 

commenters warrant an extension of the 

filing deadline. 

(5) Concerns That the Deadline Is Too

Short for Preparation by Counsel

Comment: Commenters explained that 

even if an alien was able to timely hire 

counsel, counsel would need more than 

15 days to prepare and submit the 


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application. Commenters provided 

examples of common challenges faced 

by counsel when working with detained 

aliens, which they claimed have only 

been exacerbated by the pandemic. 

Examples include: Difficulty in 

arranging meetings with aliens at 

detention centers, especially with 

pandemic-related restrictions on 

visitors; difficulty in securing 

interpreters; and gathering evidence. 

Many commenters explained that 

representation made a significant 

difference to the likelihood of aliens’ 

success. 

Commenters also stated that the 15- 

day period is too short of a time period 

to prepare a sufficient application that 

is sufficiently thorough to meet the 

higher burden of proof required for 

success on the application as opposed to 

the lower standard for credible fear 

reviews. Commenters explained that the 

rule failed to acknowledge the 

difference between the burden of 

proving ‘‘significant possibility’’ of 

succeeding on an asylum claim required 

to establish credible fear and the burden 

of proving every element of an asylum 

claim under Matter of A–C–A–A–, 28 

I&N Dec. 84 (A.G. 2020). Relatedly, 

other commenters claimed the rule’s 

reasoning that ‘‘there is no reason not to 

expect the alien to be prepared to state 

his or her claim as quickly as possible,’’ 

85 FR at 59694, improperly conflated 

the significant possibility standard used 

in the credible fear interview with the 

preponderance of the evidence standard 

used at the hearing. Commenters 

explained that the distinction between 

these standards—one imposing a 

reduced burden while the other 

imposed a greater burden that requires 

a fully developed record to satisfy all 

elements of the claim—demonstrates 

that aliens who satisfy the lesser burden 

are not necessarily ready to satisfy the 

greater burden in such a short 

timeframe. In short, given the increased 

burden of proof, commenters stated that 

15 days would be far too short to 

prepare the application, despite the 

alien having met the lesser burden of 

proof in the credible fear interview. 

Response: Again, commenters either 

misread or affirmatively misstated the 

contents of the rule. Nothing in the rule 

limits the alien, or the alien’s 

representative, to a single 15-day period 

to prepare the application; rather, the 

application must be submitted within 

15 days of the alien’s first hearing before 

the immigration judge. Thus, the alien 

will have more than 15 days to prepare 

the application, an alien or the alien’s 

representative may begin to prepare the 

application or gather evidence at any 

time, the alien may seek an extension of 

the filing deadline as appropriate, and 

the alien may supplement the 

application consistent with existing 

regulations. To the extent that 

commenters raise concerns that COVID– 

19 has created or exacerbated logistical 

challenges for representatives, the 

Department notes that cases of detained 

aliens, such as those who are subject to 

the rule, have generally been heard 

during the pandemic to avoid raising 

significant questions about prolonged 

detention and that DHS has made 

arrangements to ensure unimpeded 

communications between aliens and 

representatives. See, e.g., Nat’l 

Immigration Project of Nat’l Lawyers 

Guild v. Exec. Office for Immigration 

Review, 456 F. Supp. 3d 16, 22–23 

(D.D.C. 2020) (summarizing DHS actions 

taken to ensure communication between 

detained aliens and representatives 

continue during the outbreak of COVID– 

19). In isolated instances in which 

communication between a 

representative and a detained alien has 

been interrupted due to COVID–19, the 

Department reiterates that the rule 

provides for an extension for good 

cause, 8 CFR 1208.4(d). 

The Department did not conflate the 

burdens of proof in credible fear 

interviews and the merits of asylum 

adjudications. The Department 

recognizes the distinction between the 

burdens of proof in the interview and 

the hearing but believes the rule’s 

timeframe is sufficient for aliens to file 

their application and meet the requisite 

burden of proof. See INA 240(c)(4)(a), 8 

U.S.C. 1229a(c)(4)(A) (burden of proof 

for asylum); INA 241(b)(3)(C), 8 U.S.C. 

1231(b)(3)(C) (burden of proof for 

withholding of removal). The 

Department referenced the interview in 

the proposed rule simply to demonstrate 

that aliens who pass the credible fear 

interview are on notice of their 

eligibility for various forms of relief or 

protection, that such aliens would 

logically be expected to want to perfect 

an application for asylum and soon as 

possible thereafter, and that it is not 

unreasonable to expect an alien who has 

passed a credible fear screening to be 

anticipating and preparing for 

consideration of their ultimate 

application for asylum, including the 

preparation of their application and 

gathering of evidence, especially if the 

alien’s claim is meritorious. 

(6) The 15-Day Filing Deadline Will 

Limit the Availability of Low Cost or 

Pro Bono Legal Services 

Comment: Commenters alleged that 

the 15-day deadline would put undue 

pressure on services funded by local 

governments, as well as nonprofit 

organizations and pro bono volunteers, 

including clinics and law students, to 

assist aliens with their applications in 

an effort to reduce the likelihood that 

applications would be rejected. 

Commenters specifically asserted that 

the deadline would interfere with local 

government investments into funding 

legal service providers, specifically such 

providers’ case management processes. 

Relatedly, commenters explained that 

the deadline would require nonprofit 

organizations and clinics to 

substantially change their operations 

and would limit the number of aliens 

they could assist. For example, because 

students working in law clinics take a 

full course load in addition to taking a 

pro bono case, commenters explained 

that they would be unable to devote the 

hours necessary to meet the 15-day 

deadline, thus preventing them from 

taking cases, which in turn would harm 

aliens who rely on such assistance. 

Response: For all of the reasons 

previously given—including, inter alia, 

the existence of a longstanding 10-day 

deadline for a particular category of 

asylum applicants with no noted effects 

on low cost or pro bono representation, 

the similar longstanding existence of 

immigration judge authority to set 

deadlines for filing applications for 

relief, the availability of an extension of 

the 15-day deadline for good cause, the 

desire of aliens with meritorious claims 

to have those claims adjudicated 

quickly, the longstanding regulatory 

directive to complete asylum cases of 

detained aliens expeditiously, and, the 

risks associated with needless delays in 

asylum adjudications, including the 

degradation of evidence—the 

Department believes that a general 15- 

day filing period, while providing for 

exceptions where the immigration judge 

finds good cause, strikes the appropriate 

balance between expediency and 

fairness and would not impact the 

availability of low cost or pro bono 

representation. To the contrary, 

ensuring that detained aliens file an 

asylum application expeditiously may 

help ensure that a law school clinic can 

assist the alien before a student 

completes the clinical course or 

graduates. Cf. Registry for Attorneys and 

Representatives, 78 FR 19400, 19404 

(Apr. 1, 2013) (declining to require law 

students to register with EOIR due to, 

among other things, ‘‘the transient 

nature of law students’ participation in 

clinical programs and the limited 

circumstances under which students 

can represent individuals before EOIR 

. . . . the absence of any mechanism to 

inform EOIR when a student leaves a 

program . . . [and the lack of a] 


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27Although OPPM 13–03 has been rescinded 

because the ABT Settlement Agreement expired in 

2019, EOIR maintains a policy of providing at least 

14 days between a master calendar hearing and an 

individual hearing on an asylum application for 

detained aliens. 

regulatory provision permitting a law 

student to appear before EOIR if not 

enrolled in a ‘legal aid program or 

clinic,’ [making] it . . . problematic for 

those students to remain registered after 

leaving a clinical program’’). Similarly, 

because lengthy delays in immigration 

proceedings often dissuade pro bono 

representation, ensuring expeditious 

consideration of asylum applications 

filed by detained aliens may encourage 

more pro bono representation. See, e.g., 

HRF Report supra. To the extent that 

commenters posited hypothetical 

scenarios about particular low cost or 

pro bono service providers or particular 

types of aliens, the Department notes 

that if such scenarios are reflected by 

actual applicants, then the immigration 

judge can consider whether any of the 

factors referenced by the commenters 

warrant an extension of the filing 

deadline. 

Further, nothing in this rule requires 

the diversion of resources or alteration 

of the mission of any low cost and pro 

bono legal service providers, including 

nonprofit organizations, pro bono 

volunteers, clinics and law students, 

and government-funded representatives, 

beyond what is already required by 

existing regulations and professional 

responsibility requirements. In other 

words, immigration judges already 

possess the authority to set application 

filing deadlines, 8 CFR 1003.31(c), and 

asylum cases of detained aliens are 

already subject to expeditious 

processing, 8 CFR 1208.5(a). Further, 

practitioners are already prohibited 

from taking on more work than they can 

handle competently. 8 CFR 

1003.102(q)(1). Thus, pro bono 

organizations already operate under the 

conditions outlined in this rule, and 

commenters did not identify any 

changes that the rule itself would 

require that are independent of 

longstanding and well-established 

regulatory requirements. 

Furthermore, the Department believes 

that low cost and pro bono legal service 

providers, including nonprofit 

organizations, pro bono volunteers, 

including clinics and law students, and 

government-funded representatives, can 

meet this deadline, absent situations in 

which the deadline may be extended for 

good cause. Given the alien’s alreadylimited available avenues for relief, the 

common goal of providing relief or 

protection to aliens with meritorious 

claims as quickly as possible, and the 

risk of loss or degradation of evidence 

with the passing of time—none of which 

were challenged by commenters, 

including low cost and pro bono 

organizations themselves—the 

Department believes it is prudent to 

establish the 15-day deadline. Although 

the Department acknowledges that 

nonprofit organizations, pro bono 

volunteers, and government-funded 

representatives, like all legal 

representatives, may face unforeseen 

challenges confronting deadlines set by 

a judge, the Department is confident 

that such representatives will be able to 

handle such deadlines, just as they do 

in other courts and just as they handle 

all regulatory changes inherent across 

government agencies, and will continue 

to be able to provide assistance and 

resources to aliens in proceedings before 

EOIR. 

Finally, the Department notes that 

nothing in the rule prohibits nonprofits, 

pro bono groups, local governmentfunded representatives, or any other 

class of representatives from taking on 

an alien’s case at a later point in the 

proceedings. An alien who obtains 

counsel may choose a representative at 

any point in the proceedings, including 

after the filing of an application, and the 

ability to provide representation does 

not require assistance from the very first 

hearing. Thus, low cost or pro bono 

organizations, local government-funded 

representatives, and law school clinics 

realistically have more opportunities to 

provide assistance that many 

commenters suggested. 

iii. 15-Day Deadline Is Arbitrary 

(1) In General 

Comment: Commenters generally 

characterized the 15-day deadline as 

being arbitrarily short. Commenters 

expressed concern that the Department 

failed to include specific data regarding 

the selection of 15 days as the specific 

deadline for filing an asylum 

application in asylum-and-withholdingonly proceedings rather than some other 

period of time. Commenters alleged that 

the Department’s reasoning for the 

deadline conflated efficiency with 

speed. 

Commenters also stated that the 

deadline was arbitrary because the 

Department’s reasoning was flawed: 

Commenters stated the application 

process and the adjudication process 

were distinct from one another with 

separate time periods. Thus, 

commenters alleged that changing the 

time limit for the application process 

would not affect the separate period of 

time required for adjudication. 

Response: The Department disagrees 

that the 15-day deadline is arbitrary, 

unrealistic, or unjust. First, the current 

regulation at 8 CFR 1208.5(a) directs 

that ‘‘[w]here possible, expedited 

consideration shall be given to 

applications of detained aliens’’ 

(emphasis added). The Department 

believes that establishing a deadline 

will better provide expedited 

consideration for aliens described in 8 

CFR 1208.2(c)(1) and 1208.4(b)(3)(ii). 

Second, and relatedly, EOIR has had a 

longstanding policy of allowing asylum 

merits hearings for detained aliens to be 

scheduled within 14 days of a master 

calendar hearing with no noted 

objections or problems with that policy. 

See, e.g., EOIR Operating Policies and 

Procedures Memorandum (‘‘OPPM’’) 

00–01, Asylum Request Processing at 8 

(Aug. 4, 2000) (‘‘Generally, when setting 

a case from the Master Calendar to the 

Individual Calendar, a minimum of 14 

days should be allowed before the case 

is set for the Individual Calendar.’’); 

EOIR OPPM 13–03, Guidelines for 

Implementation of the ABT Settlement 

Agreement at 6 (Dec. 2, 2013) 

(‘‘Generally, when setting a detained 

[asylum] case from a master calendar 

hearing to an individual calendar 

hearing, a minimum of 14 days should 

be allowed.’’).27 Because—for over two 

decades with no noted challenge—the 

Department has found two weeks a 

potentially sufficient amount of time to 

prepare a case for a merits hearing on 

a detained alien’s asylum application, it 

finds that 15 days is similarly a 

sufficient time to simply file the 

application, particularly because, as 

discussed, supra, the alien will actually 

receive more than 15 days to do so. 

Third, in determining an appropriate 

deadline, the Department considered 

the current regulation establishing a 10- 

day deadline for detained crewmembers 

to file an application for asylum. 8 CFR 

1208.5(b)(1)(ii). Because detained 

crewmembers are listed in the 

regulation at 8 CFR 1208.2(c)(1) as a 

class of aliens subject to asylum-andwithholding-only proceedings, the 

Department determined it was 

appropriate to set a comparable 

deadline for other classes of aliens 

subject to asylum-and-withholding-only 

proceedings included in 8 CFR 

1208.2(c)(1), as well as aliens subject to 

withholding-only proceedings under 8 

CFR 1208.2(c)(2). 

Regarding commenters’ concerns 

about the lack of supporting data, the 

Department notes first that because each 

asylum application is adjudicated on a 

case-by-case basis and each application 

will vary accordingly in its facts and 

support, there is no common metric for 

determining how long it will typically 


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28 If the recent joint rulemaking, Procedures for 

Asylum and Withholding of Removal; Credible Fear 

and Reasonable Fear Review, signed by the 

Attorney General and the Acting Secretary of 

Homeland Security on December 2, 2020, goes into 

effect, the response time for the Form I–589 will 

increase to 18.5 hours. That length of time to 

complete the application would still support the 

Department’s position that between 15 and 38 

days—if not longer based on extensions due to good 

cause—is sufficient time to complete the Form I– 

589. See also note 22, supra. 

29See Executive Office for Immigration Review, 

LOP Cohort Analysis: Phase II (Jan. 29, 2019), 

https://www.justice.gov/eoir/file/1125621/ 

download. 

30Even if an alien is not detained, he or she 

would not need to check the automated case system 

to determine when to file. The rule clearly states 

that the application deadline is 15 days after the 

first hearing, which the alien will have attended. 

Thus, an alien will always know when the 

application is due. 

take an alien to fill out and submit a 

Form I–589 because there is not a 

‘‘typical’’ asylum case. Thus, the data 

suggested by commenters is not 

available and is untraceable due to the 

inherently fact-specific nature of each 

case. Moreover, commenters did not 

suggest that such data was available or 

could be obtained. To the extent that the 

PRA, 44 U.S.C. 3501 et seq., offers data 

and a potential metric for completing 

and submitting an asylum application, 

the Department notes that—in contrast 

to commenters’ concerns—it supports 

an even quicker deadline than that 

proposed by the Department. See Form 

I–589 Instructions at 14 (Aug. 25, 2020), 

https://www.uscis.gov/sites/default/ 

files/document/forms/i-589instr.pdf 

(providing a response time of 12 hours, 

‘‘including the time for reviewing 

instructions, and completing and 

submitting the form’’).28 As discussed, 

the provision of the rule setting a 

deadline follows from well-established 

comparable regulations or policies and 

is not intended to turn on data. 

Nevertheless, even if it were, the best 

available data regarding the time it takes 

to complete the Form I–589—i.e., the 

PRA determination—supports the 

deadline chosen by the Department. 

Additionally, the Department 

emphasizes that the deadline is an 

exercise of the Attorney General’s 

statutory authority and judgement 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). 

Congress acknowledged that there may 

be instances in which the Attorney 

General may have to act in order to 

effectuate the statutory scheme. And, 

given the statute’s silence on a filing 

timeframe for aliens in asylum-andwithholding-only proceedings, the 

Department presumes Congress 

intended for the Attorney General to 

determine such timeframe as necessary. 

In drafting the rule, the Department 

considered that the particular aliens 

affected—those in asylum-andwithholding-only proceedings—are (1) 

already subject to removal orders, 

denied applications for admission, or, 

for crewmembers, denied permission to 

land; (2) generally detained; and (3) 

solely limited to claims for asylum and 

withholding of removal, which are 

presented at the outset of the 

proceeding. See 85 FR at 59694. Given 

the unique position of these aliens, the 

Department concluded there was ‘‘no 

reason not to expect the alien to be 

prepared to state his or her claim as 

quickly as possible,’’ thereby enabling 

timely provision of relief or protection 

for meritorious claims. Id. The rule also 

noted that delaying proceedings risked 

degradation or loss of evidence, which 

could affect adjudication of the claim. 

The Department recognizes that the 

deadline for filing the application is 

distinct from the general 180-day 

deadline for adjudicating the 

application established by INA 

208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii), and the rule as a 

whole addresses both the filing deadline 

and the adjudication deadline. Finally, 

the Department notes that the rule does 

not conflate an interest in efficiency 

with pure speed, as commenters 

claimed. As discussed throughout, the 

rule is rooted in concerns about the 

expeditious consideration of claims 

made by detained aliens, the need to 

ensure meritorious claims are 

adjudicated as swiftly as possible, the 

risk of evidence becoming stale, and the 

expectation that aliens who have 

recently claimed a fear of persecution or 

torture will be well-situated to perfect 

that claim quickly through the filing of 

an asylum application. In short, the 

Department—as well as asylum 

applicants and DHS—has a strong 

interest in adjudicating cases 

expeditiously, particularly cases of valid 

claims for asylum, and the rule does not 

simply make proceedings more efficient 

for the sake of speed alone. 

(2) Arbitrary Because the Deadline 

Demands Expediency Not Followed by 

the Government Itself 

Comment: Some commenters alleged 

that the rule creates an arbitrary 

deadline because it demands 

expediency that commenters alleged 

EOIR and DHS do not follow. 

Commenters alleged that DHS routinely 

fails to file notices to appear (‘‘NTA’’) 

with EOIR for more than a year. 

Likewise, commenters alleged that it 

takes EOIR six months to a year to 

schedule a hearing. Commenters 

explained that these delays by EOIR and 

DHS impose an unreasonable burden on 

aliens to constantly check the 

automated system to determine when 

they can file. 

In a similar vein, commenters 

surmised that the Department-facilitated 

general Legal Orientation Program 

(‘‘LOP’’) would be unable to meet alien’s 

needs from the 15-day deadline. Citing 

to the LOP Cohort Analysis Phase II 

study,29 commenters emphasized that 

24% of participants failed to receive any 

services until after their first hearing, 

while participants who received 

services prior to their first hearing 

received services on average only seven 

days prior to the hearing. 

Some commenters stated that the 15- 

day deadline was arbitrary because 

backlogs in the immigration courts 

would preclude review of such 

applications for months or years. 

Commenters stated that the rule failed 

to address the inefficiencies caused by 

the Department itself, such as hiring 

new immigration judges without hiring 

support staff, restricting immigration 

judges’ ability to manage their dockets, 

and shifting prioritization of particular 

dockets. 

Response: As an initial point, many 

commenters failed to apprehend that 

most aliens subject to the rule will be 

detained. Consequently, DHS is unlikely 

to wait over a year to file a charging 

document, cf. 8 CFR 287.3(d) (except in 

an emergency or exceptional 

circumstance DHS will determine 

within 48 hours of detention whether to 

file an NTA), and EOIR is unlikely to 

wait six months to a year to schedule a 

hearing, EOIR Policy Memorandum 20– 

07, Case Management and Docketing 

Practices at 2 (Jan. 31, 2020) (detained 

cases should be entered into EOIR’s case 

management system within three days 

of filing the charging document), 

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

1242501/download. Similarly, detained 

aliens are unlikely to need to check the 

automated case system to determine 

when to file an application.30

This rule does not purport to address 

every inefficiency in the U.S. 

immigration system. The 15-day filing 

deadline instead is designed to increase 

one efficiency in asylum-andwithholding-only proceedings—the 

timeframe for aliens in such 

proceedings to file an application for 


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31 In recent rulemakings, the Department has 

sought, in part, to reduce various inefficiencies 

throughout the immigration system. See, e.g., 

Appellate Procedures and Decisional Finality in 

Immigration Proceedings; Administrative Closure, 

85 FR 52491 (Aug. 26, 2020) (proposed) (addressing 

inefficiencies in case adjudications at the BIA); 

Expanding the Size of the Board of Immigration 

Appeals, 85 FR 18105 (Apr. 1, 2020) (interim rule) 

(adding two Board member positions to the BIA so 

that the BIA may more efficiently and timely 

adjudicate appeals); Organization of the Executive 

Office for Immigration Review, 84 FR 44537 (Aug. 

26, 2019) (interim rule) (providing, in part, for more 

efficient disposition of cases through a delegation 

of authority); EOIR Electronic Filing Pilot Program, 

83 FR 29575 (June 25, 2018) (public notice) 

(creating a pilot program to test an electronic filing 

system that would greatly improve immigration 

adjudication processing in the immigration courts 

and eventually the BIA). 

32The Department notes that the same study cited 

by commenters disclosed that the general LOP cost 

the government over $100 million annually, 

increased an alien’s length of detention, did not 

generally affect an alien’s case outcome, and did not 

increase representation for detained aliens. See 

EOIR, LOP Cohort Analysis at 4 (Sept. 5, 2018), 

https://www.justice.gov/eoir/file/1091801/ 

download; cf. 5 CFR 2635.101(b)(11) (requiring the 

disclosure of government waste). Consequently, 

even prior to the NPRM, the general LOP provided 

no benefit to detained aliens, and the rule’s impact 

on detained aliens served by the general LOP is 

accordingly minimal, if any. 

33See also section II.C.4.a.i above for further 

discussion of these proposed changes. 

protection or relief.31 As explained 

above, that timeframe is not arbitrary; 

rather, it was promulgated to address a 

number of the Department’s concerns. 

See generally 85 FR at 59693–94. Thus, 

the commenters’ concerns with other 

inefficiencies at DHS and EOIR, 

including the automated system and the 

LOP,32 are outside the scope of this 

particular rulemaking. 

The Department disagrees with 

commenters’ allegation that the rule is 

arbitrary because the backlog would 

nonetheless delay hearings for such 

applications. Again, commenters 

generally did not apprehend that the 

rule will apply principally to detained 

aliens, whose cases are generally 

adjudicated within 180 days already, 

EOIR, Median Completion Times for 

Detained Cases (Oct. 23, 2019), https:// 

www.justice.gov/eoir/page/file/1163621/ 

download, and do not constitute a 

backlog. Because detained cases are 

already subject to expeditious 

consideration, 8 CFR 1208.5(a), the rule 

should not create new delays, contrary 

to commenters’ assertions. 

(3) Arbitrary Because the Rule Failed To 

Analyze Certain Impacts of the Rule 

Comment: Commenters asserted that 

the rule was arbitrary because it failed 

to analyze the impact of other proposed 

or enacted regulatory changes that 

commenters explained would increase 

the number of aliens subject to the 15- 

day filing deadline.33 Commenters 

noted this increase is contrary to the 

small number of alien crewmembers 

subject to the current 10-day filing 

deadline, to which the Department 

compares the proposed rule. 

Response: As discussed, supra, the 

number of aliens who may be placed in 

asylum-and-withholding-only 

proceedings and, thus, subject to the 

deadline established by the rule is 

speculative, unpredictable, and 

ultimately wholly outside the 

Department’s control. See Home Box 

Office, 567 F.2d at 35 n.58 (‘‘Moreover, 

comments which themselves are purely 

speculative and do not disclose the 

factual or policy basis on which they 

rest require no response.’’). The 

Department is unable to accurately or 

precisely predict the future number of 

aliens who would both enter or seek to 

enter the United States illegally and, in 

turn, be placed into asylum-andwithholding-only proceedings following 

a positive credible fear or reasonable 

fear interview; further, commenters did 

not offer a prediction, apart from 

unsupported generalizations. Similarly, 

DHS has autonomy over its own 

enforcement-related decisions and is 

statutorily tasked by Congress with 

‘‘[e]stablishing national immigration 

enforcement policies and priorities.’’ 

Homeland Security Act of 2002, Public 

Law 107–296, section 402(5), 116 Stat. 

2135, 2178 (codified at 6 U.S.C. 202(5)). 

Consequently, the Department has 

neither control over nor the means to 

predict how many aliens DHS may 

subject to expedited removal procedures 

as opposed to other enforcement options 

or the exercise of prosecutorial 

discretion. Thus, while the Department 

is cognizant that other rules may have 

some impact on immigration 

proceedings relevant to this rule, the 

size and nature of that impact is 

speculative. Moreover, even if that 

impact were predictable, the 

Department has determined, as a matter 

of policy, that the benefits of the rule— 

e.g., better effectuation of statutory 

directives, the expedited consideration 

of meritorious asylum claims, and the 

elimination of provisions that are 

immaterial to EOIR—far outweigh any 

negative impacts that the rule would 

have, either singularly or in tandem 

with other rules. Such balancing of 

preferences is not arbitrary and 

capricious. 

Moreover, assuming, arguendo, that 

other rules increase the number of 

aliens subject to asylum-andwithholding proceedings under 8 CFR 

1208.2(c), the provisions of this rule 

would remain important to effectuate. 

As discussed, supra, aliens subject to 

proceedings under 8 CFR 1208.2(c) are 

generally subject to detention unless 

paroled by DHS. Both parties, especially 

in cases of aliens with meritorious 

claims, and the immigration courts have 

an interest in the expeditious 

consideration of asylum claims made by 

detained aliens. In fact, current 

regulations already provide for such 

expedited consideration, 8 CFR 

1208.5(a), and commenters did not 

explain why it would be arbitrary and 

capricious for detained aliens to receive 

expedited consideration of their asylum 

claims consistent with existing 

regulations. The rule simply reaffirms 

the importance of well-established 

principles, namely adhering to statutory 

deadlines and providing expedited 

consideration of asylum claims for 

detained aliens, especially meritorious 

claims. Such re-affirmation is not 

arbitrary and capricious. 

Furthermore, the Department’s 

reasoning for the 15-day deadline does 

not rely on or involve the number of 

aliens who may be affected. In other 

words, the proposed rule at 85 FR 

36264, and the recently-finalized rule, 

had no bearing on the reasoning 

underlying the deadline in the rule at 

hand. In the proposed rule, 85 FR at 

59693–94, the Department explained 

that aliens in asylum-and-withholdingonly proceedings are ‘‘generally already 

subject to removal orders, denials of 

applications for admission, or denials of 

permission to land in the case of 

crewmembers, and are often also 

detained . . . . [T]heir only avenues for 

relief or protection are applications for 

asylum, statutory withholding of 

removal, and protection under the 

regulations issued pursuant to 

legislation implementing U.S. 

obligations under the [CAT] . . . and 

they would not be in asylum-andwithholding-only proceedings if they 

had not already claimed a fear of 

persecution or torture upon being 

returned to their home countries.’’ The 

Department subsequently concluded 

that because asylum and withholding of 

removal are the ‘‘sole issues to be 

resolved in the proceeding and are 

squarely presented at the outset of the 

proceeding . . . there is no reason not 

to expect the alien to be prepared to 

state his or her claim as quickly as 

possible.’’ 85 FR at 59694. In addition, 

the Department provided further 

reasoning for its decision to establish a 

deadline: Delayed filing risks delayed 

protection or relief for meritorious 

claims; delayed filing increases the 

likelihood that evidence may degrade or 

be lost; and applicants may simply 

delay proceedings, thus causing 

inefficiencies in what should be a 


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34The Department notes, however, that to the 

extent commenters argue more aliens will be in 

asylum-and-withholding-only proceedings and 

subject to the 15-day filing deadline in the future, 

such arguments further the Department’s reasoning 

rather than counter it. In other words, the 

Department’s concerns to ensure efficiency, 

accurate recall of claims, and avoiding 

gamesmanship are greater if more proceedings are 

benefited than fewer. 

streamlined proceeding. See id. The 

Department also noted that a deadline 

was consistent with current regulations 

establishing a 10-day deadline for 

detained crewmembers to file an asylum 

application, 8 CFR 1208.5(b)(1)(ii), and 

directing the agency to provide 

‘‘expedited consideration’’ to asylum 

applications filed by detained aliens, 8 

CFR 1208.5(a). Id. None of these factors 

relies upon or is altered based on the 

number of aliens subject to proceedings 

under 8 CFR 1208.2(c)(1).34

Furthermore, pursuant to 5 U.S.C. 

706(2)(A), an agency must articulate a 

‘‘rational connection between the facts 

found and the choice made.’’ Burlington 

Truck Lines v. United States, 371 U.S. 

156, 168 (1962). Those facts must be 

‘‘relevant’’ and considered with no 

‘‘clear error in judgment,’’ see Citizens 

to Preserve Overton Park v. Volpe, 401 

U.S. 402, 416 (1971), but a court will 

‘‘uphold a decision of less than ideal 

clarity if the agency’s path may 

reasonably be discerned.’’ Motor 

Vehicles Mfrs. Ass’s of U.S., Inc. v. State 

Farm Mutual Auto. Ins., 463 U.S. 29, 43 

(1983) (quoting Bowman Transp. Inc. v. 

Arkansas-Best Freight System, 419 U.S. 

281, 286 (1974)). Under that standard, 

the rule is not arbitrary and capricious. 

The rule clearly discussed the relevant 

factors considered in establishing the 

15-day filing deadline, at least to an 

extent that the rule was ‘‘reasonably 

discerned.’’ See 85 FR at 59693–94; see 

also section II.C.4.a.iii.(1), supra. 

Factors over which the Department 

has no control were considered, but as 

discussed, they do not impact the nature 

of the rule. For example, DHS’s 

expansion of expedited removal stems 

from DHS’s ‘‘sole and unreviewable’’ 

authority to determine the scope of 

aliens to whom expedited removal 

provisions may be applied. INA 

235(b)(1)(A)(iii)(I), 8 U.S.C. 

1235(b)(1)(A)(iii)(I). The Department 

and DHS are separate agencies with 

distinct authorities and responsibilities, 

and EOIR played no part in developing 

or implementing that notice. Further, 

the notice bore no effect on the 

Department’s decision to establish a 

filing deadline for aliens in asylum-andwithholding-only proceedings in an 

effort to address inefficiencies in the 

system and reduce delayed protection or 

relief for meritorious claims. And, to the 

extent that DHS’s action may result in 

more aliens subject to proceedings 

under 8 CFR 1208.2(c)(1), that outcome, 

which is highly speculative, would not 

undermine or alter the rule for the 

reasons given. 

Comment: In addition, commenters 

explained that the rule should have 

analyzed the impact of the deadline on 

aliens, counsel, and court operations, 

including the reliance interests of those 

parties on the current timeframe to seek 

and engage representation. Commenters 

stated that the rule’s lack of a cost 

benefit analysis on the 15-day deadline 

evidenced the Department’s failure to 

assess the harms caused by the rule. 

More specifically, commenters stated 

that the Department failed to consider 

the ‘‘severe consequences’’ on aliens 

from imposing a 15-day deadline, which 

they alleged could lead to denials of 

thousands of asylum applications and 

subsequent orders of removal under the 

BIA’s decision in Matter of R–C–R–, 28 

I&N Dec. 74 (BIA 2020). Commenters 

stated this would deprive pro se aliens 

the opportunity to request extensions or 

build a record to explain why they did 

not meet the deadline. In regard to 

nonprofits, commenters stated that the 

Department failed to consider that with 

such a short deadline, pro bono 

attorneys would be less willing to take 

cases and nonprofits would be unable to 

place attorneys with detained aliens. In 

regard to court operations, commenters 

stated that the Department failed to 

consider that courts would be 

overwhelmed by the number of pro se 

cases. 

Response: As an initial point, 

commenters did not quantify the 

asserted ‘‘severe consequences’’ they 

alleged would flow from the rule, and 

because the Department believes such 

consequences are unsupported, 

hypothetical, unrealistic, or based on an 

incorrect understanding of the rule, it 

declines to seek to develop a metric for 

measuring them. Moreover, most of the 

alleged ‘‘harms’’ asserted by 

commenters are, in reality, founded in 

policy disagreements over a belief that 

not enough asylum applications are 

being granted or simply repeat 

tendentious or spurious claims about 

how the Department considers asylum 

cases under the applicable law. 

As with other rules issued by the 

Department, many, if not most, 

commenters asserted that this rule was 

‘‘arbitrary and capricious,’’ though 

nearly all of those assertions were 

ultimately rooted in the rule’s failure to 

adopt the commenters’ policy 

preferences rather than the 

identification of specific legal 

deficiencies. The Department has 

considered all comments and looked at 

alternatives. The Department 

understands that many, if not most, 

commenters opposing the rule believe 

that most asylum applications are 

meritorious and, thus, would prefer that 

nearly all applications for asylum be 

granted, that border restrictions be 

loosened accordingly if not eliminated, 

and that the Department, as a matter of 

forbearance or discretion, decline to 

follow the law in situations where doing 

so would be beneficial to aliens. For all 

of the reasons discussed in the NPRM, 

and reiterated herein, however, the 

Department declines to adopt those 

positions. In short, although the 

Department has considered the issues 

raised and policy perspectives advanced 

by commenters, it finds them 

unpersuasive and insufficient to warrant 

withdrawing the rule. 

Similarly, the Department further 

understands that, at the least, most 

commenters would prefer to maintain 

the status quo, believing that it is 

preferable to the changes in the rule. 

The Department has been forthright in 

acknowledging the changes created by 

the rule from the status quo, but has also 

explained the reasoning behind those 

changes, including the better 

effectuation of statutory directives, the 

expedited consideration of meritorious 

asylum claims, and the elimination of 

provisions that are immaterial to EOIR. 

The Department has acknowledged 

changes in positions, where applicable, 

it has provided good reasons for those 

changes, it believes the changes are 

better implementations of the law than 

the status quo, and it has 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). 

Many of commenters’ concerns are 

also addressed, supra, and the 

Department reiterates its prior responses 

accordingly. For example, commenters 

did not engage with the many reasons 

supporting the deadline in the rule— 

e.g., the existence of a longstanding 10- 

day deadline for a particular category of 

asylum applicants with no noted effects 

on pro bono representation, the similar 

longstanding existence of immigration 

judge authority to set deadlines for 

filing applications for relief, the 

availability of an extension of the 15- 

day deadline for good cause, the desire 

of aliens with meritorious claims to 

have those claims adjudicated quickly, 

the longstanding regulatory directive to 

complete asylum cases of detained 

aliens expeditiously, and, the risks 


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associated with needless delays in 

asylum adjudications, including the 

degradation of evidence. The 

Department considered those issues, as 

well as the ones raised by commenters, 

but determined for the reasons given 

that a general 15-day filing period, 

while providing for exceptions where 

the immigration judge finds good cause, 

strikes the appropriate balance between 

expediency and fairness. 

The Department further finds that the 

rule would not impact the availability of 

pro bono representation. To the 

contrary, as discussed, supra, ensuring 

expeditious consideration of asylum 

applications filed by detained aliens 

may promote increased pro bono 

representation which is often dissuaded 

by lengthy delays in immigration 

proceedings. See, e.g., HRF Report supra 

(‘‘In a February 2016 survey conducted 

by Human Rights First of 24 pro bono 

coordinators at many of the nation’s 

major law firms, nearly 75 percent of 

pro bono professionals indicated that 

delays at the immigration court are a 

significant or very significant negative 

factor in their ability to take on a pro 

bono case for legal representation before 

the court.’’). To the extent that 

commenters posited hypothetical 

scenarios about particular pro bono 

groups or particular types of aliens, the 

Department notes that if such scenarios 

are reflected by actual applicants, then 

the immigration judge can consider 

whether any of the factors referenced by 

the commenters warrant an extension of 

the filing deadline. 

Overall, the Department believes that 

nonprofit organizations and pro bono 

volunteers can meet this deadline, 

absent situations in which the deadline 

may be extended for good cause. Given 

the alien’s already-limited available 

avenues for relief, the common goal of 

providing relief or protection to aliens 

with meritorious claims as quickly as 

possible, and the risk of loss or 

degradation of evidence with the 

passing of time—none of which were 

challenged by commenters, including 

pro bono organizations themselves—the 

Department believes it is prudent to 

establish the 15-day deadline. Although 

the Department acknowledges that 

nonprofit organizations and pro bono 

volunteers, like all legal representatives, 

may face unforeseen challenges 

confronting deadlines set by a judge, the 

Department is confident that such 

representatives will be able to handle 

such deadlines, just as they do in other 

courts and just as they handle all 

regulatory changes inherent across 

government agencies, and will continue 

to be able to provide assistance and 

resources to aliens in proceedings before 

EOIR. 

The Department further notes that 

nothing in the rule prohibits nonprofits, 

pro bono groups, or any other class of 

representatives from taking on an alien’s 

case at a later point in the proceedings. 

An alien who obtains counsel may 

choose a representative at any point in 

the proceedings, including after the 

filing of an application, and the ability 

to provide representation does not 

require assistance from the very first 

hearing. Thus, pro bono organizations 

have more opportunities to provide 

assistance that many commenters 

suggested. 

In drafting this rule, the Department 

considered the potential impacts of the 

deadline on various referenced groups, 

but finds assertions of deleterious 

impacts unsupported, grossly 

speculative, and ultimately 

unpersuasive. The rule’s extension for 

good cause, 8 CFR 1208.4(d), and the 

retained provision allowing for future 

amendments or supplements to the 

application, 8 CFR 1208.4(c), stem from 

consideration of aliens, counsel 

(including pro bono counsel), and 

nonprofit organizations who may 

encounter unusual situations that 

prevent them from meeting the 

deadline. 85 FR at 59694. Commenters’ 

concerns regarding ‘‘thousands’’ of 

denied applications and subsequent 

orders of removal are speculative and 

overwrought almost to the point of 

histrionic. In fact, commenters’ 

concerns on this point appear to tacitly 

suggest that most asylum claims are 

non-meritorious, as commenters 

generally failed to address the need for 

detained aliens with meritorious claims 

to have those claims adjudicated as 

efficiently as possible. 

The deadline, in and of itself, does 

not prevent aliens from requesting an 

extension or explaining why they did 

not meet the deadline. Aliens may 

request an extension at any point during 

the 15-day timeframe following their 

initial hearing. See 8 CFR 1208.4(d). 

Further, the deadline is not subject to 

retroactive application and does not 

infringe on the reliance interests of 

aliens subject to the current regulations. 

In addition, a significant motivation 

for establishing the deadline stemmed 

from the Department’s consideration of 

inefficiencies in court operations due to 

the delayed filing of applications. See 

85 FR at 59693–94. Commenters’ 

concerns that courts will be 

‘‘overwhelmed’’ with pro se cases is 

both speculative and unsupported by 

evidence. To be sure, immigration 

courts have seen an increase in cases in 

recent years due to increased illegal 

immigration, but the rule will neither 

increase nor decrease the number of 

overall cases filed with the immigration 

courts. See EOIR, Workload and 

Adjudication Statistics, New Cases and 

Total Completions—Historical, https://

www.justice.gov/eoir/page/file/1139176/ 

download (reflecting that DHS filed a 

record number of new cases—over 

500,000—in FY 2019 and then filed the 

second highest number of new cases— 

over 361,000—in FY 2020). 

Furthermore, most asylum cases have 

legal representation notwithstanding 

this dramatic increase in new case 

filings. See EOIR, Workload and 

Adjudication Statistics, Current 

Representation Rates, https://

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

download. Nothing in the rule would 

logically cause representation rates to 

decline or suggests a reason why aliens 

would be unable to secure 

representation. Moreover, ample 

resources for pro se aliens are available 

in immigration court. See, e.g., EOIR, 

List of Pro Bono Service Providers, 

https://www.justice.gov/eoir/list-probono-legal-service-providers; EOIR, Pro 

Bono Portal, https://

probono.eoir.justice.gov/; EOIR, 

Immigration Court Online Resource, 

https://icor.eoir.justice.gov/en/;cf. EOIR 

Launches Resources to Increase 

Information and Representation (Oct. 1, 

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

eoir-launches-resources-increaseinformation-and-representation. In 

short, suggestions that immigration 

courts will be ‘‘overwhelmed’’ by pro se 

cases are not rooted in the current 

reality of asylum adjudications. 

Finally, the Department considered 

the potential impact of the deadline on 

nonprofit or pro bono organizations as 

discussed above. See section C.4.a.ii(6), 

supra. 

iv. Deadline Removes Immigration 

Judge Discretion 

Comment: Commenters opposed the 

deadline because they alleged that it 

removed all immigration judge 

discretion by requiring judges to deem 

an application abandoned if a deadline 

is not met. Commenters stated that if 

immigration judges did not exercise 

discretion in considering the unique 

circumstances in each case, due process 

would be violated. Commenters 

explained that such discretion was 

necessary for immigration judges to 

manage their dockets, given that 

immigration judges were best suited to 

set filing deadlines. Commenters also 

contended that the rule allegedly did 

not allow for an immigration judge to 

further extend a filing deadline beyond 

the initial extension for good cause. 


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35The Department recognizes and agrees with the 

Supreme Court’s observation that ‘‘as a general 

matter, every delay works to the advantage of the 

deportable alien who wishes merely to remain in 

the United States.’’ Doherty, 502 U.S. at 323. Thus, 

it is aware that aliens without valid claims may 

likely prefer substantial delays in the adjudications 

of their cases and, accordingly, oppose any efforts 

to increase the efficiency of such adjudications. 

Nevertheless, the Department finds any rationale for 

encouraging or supporting the dilatory adjudication 

of cases both inherently unpersuasive and wholly 

outweighed by the importance of timeliness and 

fairness—especially to detained aliens with 

meritorious claims—in adjudicating asylum 

applications. 

Response: Again, commenters 

misapprehend the rule, existing 

regulations, and the Department’s 

administrative interests. Current 

regulations, 8 CFR 1003.31(c), already 

provide that the ‘‘Immigration Judge 

may set and extend time limits for the 

filing of applications and related 

documents and responses thereto, if 

any,’’ and that ‘‘[i]f an application or 

document is not filed within the time 

set by the Immigration Judge, the 

opportunity to file that application or 

document shall be deemed waived.’’ 

The rule does not change this 

longstanding principle, and many 

commenters failed to acknowledge that 

immigration judges already have wellestablished authority to set filing 

deadlines and are already authorized to 

find applications abandoned for failing 

to comply with such deadlines. 

Instead, the rule acknowledges the 

inefficiency of the current case-by-case 

system in which immigration judges 

may set varying filing deadlines for 

similarly-situated cases. Such a 

situation is 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)); Marin-Rodriguez v. Holder, 

612 F.3d 591, 593 (7th Cir. 2010) (‘‘An 

agency may exercise discretion 

categorically, by regulation, and is not 

limited to making discretionary 

decisions one case at a time under openended standards.’’). The Department is 

appropriately using rulemaking to 

provide guidance in order to streamline 

determinations consistent with its 

statutory authority. Although the 

Department acknowledges that the rule 

may proscribe immigration judge 

discretion to a degree, the rule’s 

promotion of consistency, clear 

deadlines, and continued expeditious 

treatment of asylum claims, especially 

meritorious asylum claims, by detained 

aliens far outweigh its limitation on 

immigration judge discretion. 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.’’ (internal citations 

omitted)); see also Lopez, 531 U.S. at 

243–44 (‘‘[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.’’ (internal citations 

omitted)). 

In addition, immigration judges are 

appointed by the Attorney General and 

act as his delegates in cases that come 

before them. 8 CFR 1003.10(a). They 

exercise delegated authority in 

accordance with the Act and from the 

Attorney General by way of regulations. 

8 CFR 1003.10(b); see also INA 

103(g)(2), 8 U.S.C. 1103(g)(2). As 

generally explained by the Supreme 

Court, ‘‘[i]f 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.’’ Chevron, 

467 U.S. at 843–44 (1984). This section 

of the rule was promulgated in light of 

the Act’s silence on a timeframe for 

filing applications in asylum-andwithholding-only proceedings. 

Regardless of whether immigration 

judges previously had discretion under 

the regulations to set deadlines, this rule 

amends the regulations to establish in 

asylum-and-withholding-only 

proceedings a 15-day deadline from the 

date of the alien’s first hearing to file an 

application. EOIR acknowledges this is 

a change from the previous regulation; 

however, agencies are ‘‘free to change 

their existing policies’’ if they provide a 

reasoned explanation for the change. 

Encino Motor Cars, LLC v. Navarro, 136 

S. Ct. 2117, 2125 (2016) (citing Nat’l 

Cable & Telecomm. Ass’n. v. Brand X 

internet Services, 545 U.S. 967, 981–982 

(2005)). That explanation was provided 

in the proposed rule, 85 FR at 59693– 

94, and is reiterated throughout this 

final rule. Generally, the Department 

established a 15-day deadline, subject to 

an extension for good cause, in order to 

reduce the risk of degradation or loss of 

evidence, reduce the risk of delayed 

grants of protection or relief for 

meritorious claims, accomplish the 

regulatory directive that detained aliens 

receive ‘‘expedited consideration’’ of 

their applications, and reduce 

inefficiencies caused by delayed filings. 

See id. 

Accordingly, consistent with 

applicable law and existing regulations, 

the rule removes individual 

immigration judge discretion only as it 

applies to the initial deadline for filing 

an application for asylum and 

withholding of removal. See 85 FR at 

59694. It does not preclude immigration 

judges from managing their dockets. In 

fact, the rule expressly provides 

discretion to immigration judges to 

extend the filing deadline for good 

cause shown, 8 CFR 1208.4(d)(1), and 

the rule does not affect immigration 

judges’ discretion to allow an alien to 

amend or supplement the application 

later in the proceedings, 8 CFR 

1208.4(c). 

This does not violate due process. 

Due process in immigration proceedings 

requires notice and a meaningful 

opportunity to be heard, neither of 

which are affected by this rule. See 

LaChance, 522 U.S. at 266 (‘‘The core of 

due process is the right to notice and a 

meaningful opportunity to be heard.’’). 

Aliens in asylum-and-withholding-only 

proceedings will continue to be 

provided notice of removability, 8 CFR 

235.6, 1003.13 (defining ‘‘charging 

document’’ used by DHS to initiate 

immigration proceedings before an 

immigration judge); have an opportunity 

to present the case to an immigration 

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

1225(b)(1)(B)(ii), and 8 CFR 1208.2(c); 

and have an opportunity to appeal, 8 

CFR 1003.1(b)(9). 

Without an initial filing deadline, 

aliens have no established timeframe in 

which to expect consideration of their 

applications for relief or protection. The 

Department is unaware of any reason 

why an alien with a valid claim for 

asylum would oppose a clear, defined 

filing deadline, especially one that 

expeditiously allows the alien to obtain 

the benefit he or she seeks (including 

release from detention), in favor of 

uncircumscribed discretion that could 

delay consideration of the alien’s 

claims.35 In addition, without an initial 

filing deadline, proceedings may be 

delayed, resulting in degradation or loss 

of evidence that is oftentimes crucial to 

an alien’s claims. The Department is 

similarly unaware of why an alien 

would oppose a deadline that facilitates 

expeditious presentation of oftentimes 

time-sensitive evidence that may be 


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crucial to the outcome of the alien’s 

case. 

Finally, commenters misinterpret the 

rule in regard to the extension 

provision. There is no limitation to a 

single good-cause extension. The only 

requirement for the extension would be 

that the alien must demonstrate good 

cause for any extension. Cf. Matter of L– 

A–B–R–, 27 I&N Dec. at 405 (providing 

non-exhaustive factors for consideration 

when determining whether or not a 

party has demonstrated good cause for 

a continuance). 

v. Deadline Raises Efficiency Concerns 

(1) Agency Incorrectly Prioritizes 

Efficiency Above All Else 

Comment: Commenters alleged that 

the deadline improperly prioritizes 

efficiency over all other concerns and 

factors. 

Response: Commenters are correct 

that this section of the rule relates to 

efficiency. See 85 FR at 59694 (‘‘[T]he 

deadline would ensure only that the 

application is filed in a timely manner 

consistent with the streamlined and 

focused nature of asylum-andwithholding-only proceedings.’’). 

However, commenters are incorrect that 

the Department considered only 

efficiency to the exclusion of all other 

factors. As discussed throughout this 

rule, the Department considered, inter 

alia, that most aliens subject to the rule 

are detained, that aliens with 

meritorious claims have a strong 

incentive to obtain relief—and release 

from detention—as quickly as possible, 

that aliens who have recently claimed a 

fear of persecution or torture will be 

well-situated to perfect that claim 

quickly through the filing of an asylum 

application, that most asylum 

applicants have representation, that 

filing deadlines are a well-established 

part of immigration court practice and 

are utilized by courts at all levels, that 

an even shorter filing deadline has 

existed for many years for a particular 

class of asylum applicants with no 

noted challenges or complaints, that 

delays in adjudication may risk 

evidence degradation and may make it 

more difficult to obtain pro bono 

representation, that the deadline is not 

absolute because it may be extended in 

appropriate circumstances, and that the 

rule does not alter longstanding rules 

and practices allowing aliens to 

supplement an application and to seek 

to have an immigration consider latefiled evidence. The Department has also 

fully considered the issues raised by 

commenters and finds them largely 

unavailing for the reasons given. 

Moreover, even if the comments were 

more founded or persuasive, the 

Department nevertheless believes that 

the concerns asserted by most 

commenters are outweighed by the 

benefits provided by the rule, namely 

consistency in setting filing deadlines, 

better effectuation of the regulatory 

directive to provided expeditious 

consideration to adjudicating asylum 

applications of detained aliens, faster 

resolution of meritorious claims, and 

better protection against claims going 

stale due to delay. 

In drafting the rule, the Department 

considered that the particular aliens 

affected—those in asylum-andwithholding-only proceedings—are (1) 

already subject to removal orders, 

denied applications for admission, or, 

for crewmembers, denied permission to 

land; (2) generally detained; and (3) 

solely limited to claims for asylum and 

withholding of removal, which are 

presented at the outset of the 

proceeding. See 85 FR at 59694. Given 

the unique position of these aliens, the 

Department concluded there was ‘‘no 

reason not to expect the alien to be 

prepared to state his or her claim as 

quickly as possible,’’ thereby enabling 

timely provision of relief or protection 

for meritorious claims. Id. The rule also 

noted that delaying proceedings risked 

degradation or loss of evidence, which 

could affect adjudication of the claim(s). 

To be sure, the realities of the pending 

caseload and the continued increase in 

new cases filed by DHS in immigration 

court should not be underestimated. See 

EOIR, Adjudication Statistics: New 

Cases and Total Completions— 

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

www.justice.gov/eoir/page/file/1139176/ 

download; see also EOIR, Adjudication 

Statistics: Pending Cases, New Cases, 

and Total Completions (Oct. 13, 2020), 

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

1242166/download. Further, the 

regulation at 8 CFR 1208.5(a) provides 

that detained aliens should receive 

‘‘expedited consideration.’’ Consistent 

with those observations, this deadline 

appropriately eliminates unnecessary 

delays in what should be a streamlined 

proceeding. 

Nevertheless, although the rule 

referenced the possibility that, without 

a deadline, aliens may attempt to delay 

proceedings, the rule did not 

exclusively rely on that point in 

establishing the 15-day deadline. 

Further, most commenters failed to 

appreciate the rule’s acknowledgment of 

‘‘unusual situations’’ in which an alien 

may need additional time to file an 

application. Id. In such situations, 

despite efficiency concerns, the 

regulation authorizes the immigration 

judge to extend the deadline for good 

cause. 8 CFR 1208.4(d)(1). In short, 

contrary to commenters’ arguably 

tendentious views, efficiency does not 

trump due process, and nothing in the 

rule suggests otherwise. 

Comment: As an overarching concern, 

commenters claimed that the 

Department is attempting to speed up 

proceedings, by imposing the 15-day 

deadline, in the name of efficiency. 

Commenters alleged such action 

violates due process because aliens and 

counsel are deprived of meaningful 

presentation of their cases. 

Response: The Department reiterates 

its response to similar comments, supra, 

and adds the following further response. 

Due process in immigration proceedings 

requires notice and a meaningful 

opportunity to be heard, neither of 

which are affected by this rule. 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 Department will continue to 

provide aliens in asylum-andwithholding-only proceedings notice of 

the charges of removability, 8 CFR 

235.6, 1003.13 (defining ‘‘charging 

document’’ used by DHS to initiate 

immigration proceedings before an 

immigration judge); an opportunity to 

present the case to an immigration 

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

1225(b)(1)(B)(ii), and 8 CFR 1208.2(c); 

and an opportunity to appeal, 8 CFR 

1003.1(b)(9). In short, nothing in the 

rule compromises the provision of 

notice to an alien or an alien’s ability to 

be heard on any asylum application. To 

the contrary, the rule provides an alien 

clearer notice of the relevant filing 

deadline and seeks to ensure that an 

alien will have the opportunity to be 

heard before memories or other 

evidence fade. See generally 85 FR at 

59693–94. 

Further, nothing in the rule inhibits 

an alien’s ability to meaningfully 

present his or her case. The alien will, 

in reality, have more than 15 days to file 

an asylum application, and the 

immigration judge does not adjudicate 

the application at the same time that it 

is filed. An alien’s testimony alone 

‘‘may be sufficient to sustain the 

applicant’s burden without 

corroboration, but only if the applicant 

satisfies the trier of fact that the 

applicant’s testimony is credible, is 

persuasive, and refers to specific facts 

sufficient to demonstrate that the 

applicant is a refugee.’’ INA 

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

1158(b)(1)(B)(ii). Thus, particularly for 

meritorious claims, an alien may not 

need extensive documentation or 

preparation to support and present his 

or her claim because an alien can meet 


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36Conduct in violation of 8 CFR 1003.102(u) may 

implicate other disciplinary grounds as well. For 

example, 8 CFR 1003.102(j)(1) prohibits engaging in 

frivolous behavior, which includes a practitioner 

who ‘‘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 cause unnecessary delay.’’ Further, 8 CFR 

1003.102(o) states that a practitioner may be subject 

to disciplinary sanctions if he or she ‘‘[f]ails to 

provide competent representation to a client. 

Competent representation requires the legal 

knowledge, skill, thoroughness, and preparation 

reasonably necessary for the representation. 

Competent handling of a particular matter includes 

inquiry into and analysis of the factual and legal 

elements of the problem, and use of methods and 

procedures meeting the standards of competent 

practitioners.’’ 

37The phrase ‘‘good cause’’ currently appears in 

at least 26 places in the Department’s regulations 

in 8 CFR chapter V. See, e.g., 8 CFR 1003.20(b), 

1003.29, 1240.6. As noted, the Department 

acknowledges that ‘‘good cause’’ is not currently 

defined in the regulations and, thus, may be subject 

to inconsistent application. Nevertheless, the 

Department did not propose defining ‘‘good cause’’ 

in the NPRM for this final rule because continuance 

requests are not limited solely to cases involving 

asylum applications and, thus, a separate 

rulemaking on the subject applicable to all cases 

was more appropriate. See 85 FR at 75926–28 

(discussing the application of the ‘‘good cause’’ 

standard in multiple contexts, including those 

unrelated to an asylum application). Accordingly, 

the Department does not believe that interjecting a 

new definition in the final rule would be 

appropriate, particularly because commenters did 

not supply a workable suggestion for such a 

definition. Nevertheless, the Department will 

consider commenters’ concerns about the ambiguity 

of the ‘‘good cause’’ standard and the possibility of 

inconsistent application when it finalizes the 

separate rule on ‘‘good cause.’’ 

38This section focuses specifically on 

representation by attorneys because commenters’ 

concerns focused specifically on attorneys. 

However, the Department notes that aliens may also 

be represented by a wide range of representatives 

beyond traditional attorneys. See generally 8 CFR 

1292.1 (providing who may represent aliens in 

proceedings before EOIR). 

39 In removal proceedings before an immigration 

judge or the Board aliens ‘‘have the privilege of 

the relevant burden of proof through 

credible, persuasive, and specific 

testimony. In appropriate cases, aliens 

can also request an extension of the 

filing deadline and, if necessary, a 

continuance of any hearing. In short, 

commenters’ allegations that the rule 

prohibits aliens and representatives 

from presenting their cases are wholly 

unfounded. 

(2) Deadline Does Not Promote 

Efficiency 

Comment: Commenters stated that the 

15-day deadline would incentivize the 

use of ‘‘placeholder’’ applications and 

boilerplate language, increased filings of 

motions to amend and supplement, and 

subsequent piecemeal submission of 

supplemental evidence. Commenters 

stated that the Department failed to 

consider these administrative burdens 

on both DHS, adjudicators, and court 

staff. The commenters asserted that 

allowing at the outset adequate time to 

submit a well-prepared application, 

rather than rush an application that 

consequently needs further paperwork, 

would benefit the entire immigration 

system. 

Response: As an initial point, 

commenters did not explain why these 

allegations are unique to the rule. Many 

aliens currently file ‘‘placeholder’’ 

applications and boilerplate language, 

file motions to amend and supplement, 

and submit supplemental evidence for 

review piecemeal; thus, immigration 

judges are already well-accustomed to 

such scenarios. Commenters’ suggestion 

that the rule will cause more of these 

actions is speculative at best, but even 

if it were more well-founded, the 

Department expects any additional 

burdens to be minimal because it would 

represent little change from the 

adjudicatory status quo and immigration 

judges are already experienced at 

handling these actions. 

Additionally, commenters again 

misstate or misapprehend the rule. It 

does not require all paperwork to be 

filed by the 15-day deadline—only the 

application. Because the alien, by 

definition, will have recently made his 

or her claim to DHS, the claim should 

be fresh and ripe for memorialization. In 

fact, because memories fade over time, 

it will generally be to the benefit of the 

alien to memorialize the claim and file 

the application as soon as possible. 

Further, commenters simply discount 

the availability of an extension of the 

deadline to file the application, 8 CFR 

1208.4(d), even though it should obviate 

concerns about allegedly too-soon filing 

deadlines. Further, as stated in the 

proposed rule, the purpose of the initial 

15-day deadline was to ‘‘ensure only 

that the application is filed in a timely 

manner consistent with the streamlined 

and focused nature of asylum-andwithholding-only proceedings.’’ 85 FR 

at 59694. The Department promulgates 

this rule in part to effectuate the 

regulatory directive of 8 CFR 1208.5(a) 

to provide these aliens with expedited 

consideration. 

Finally, commenters’ suggestions on 

this point may also implicate ethics or 

professional responsibility issues. 

Although placeholder applications with 

boilerplate language are not uncommon 

currently, in certain circumstances the 

filing of such documents may warrant 

disciplinary sanction. See 8 CFR 

1003.102(u) (‘‘Repeatedly files notices, 

motions, briefs, or claims that reflect 

little or no attention to the specific 

factual or legal issues applicable to a 

client’s case, but rather rely on 

boilerplate language indicative of a 

substantial failure to competently and 

diligently represent the client’’).36 To 

the extent that commenters assert that 

the rule will cause representatives to 

violate their ethical and professional 

responsibility obligations, that assertion 

is not well-taken. The Department 

expects that all representatives will 

comport themselves in accordance with 

relevant ethics and professional 

responsibility rules, and nothing in the 

rule excuses engaging in conduct or 

behavior that may constitute grounds for 

disciplinary sanctions. See 8 CFR 

1003.101(a). 

Comment: Commenters explained that 

the vague ‘‘good cause’’ standard for 

extension requests was prone to 

inconsistent application that would lead 

to confusion and an increased number 

of appeals. Commenters stated this 

result conflicts with the rule’s purported 

efficiency justifications. 

Response: The Department 

appreciates commenters’ concerns about 

the ambiguity of a ‘‘good cause’’ 

standard and the possibility of 

inconsistent application. For those 

reasons, among others, the Department 

recently proposed regulatory 

clarifications of the definition of ‘‘good 

cause’’ in the context of continuance 

requests in immigration proceedings. 

See Good Cause for a Continuance in 

Immigration Proceedings, 85 FR 75925 

(Nov. 27, 2020). Although that 

rulemaking is not final, the Department 

expects that when it is finalized, it will 

provide helpful guidance to 

adjudicators considering questions of 

‘‘good cause’’ across different situations. 

Until guidance in that rule is finalized, 

however, immigration judges will 

continue to adjudicate requests alleging 

‘‘good cause’’—including extension 

requests, which are tantamount to 

requests for a continuance—as they 

currently do so.37

To the extent that commenters believe 

an increased number of appeals will 

result from the rule, such a concern is 

speculative, ignores the inherently factspecific and case-by-case nature of 

asylum adjudications, and tacitly 

suggests that most asylum claims are 

unmeritorious necessitating the need for 

an appeal. Commenters did not support 

this assertion regarding appeals, and the 

Department declines to endorse the 

speculative and unfounded bases for it. 

vi. Deadline Deprives Aliens of Right to 

Counsel 38

Comment: Commenters alleged that 

the 15-day deadline, including the 

extension for good cause, violates an 

alien’s right to counsel at no expense to 

the government.39 Commenters alleged 


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being represented (at no expense to the 

Government) by such counsel, authorized to 

practice in such proceedings, as he shall choose.’’ 

INA 292, 8 U.S.C. 1362; see also INA 240(b)(4)(A), 

8 U.S.C. 1229a(b)(4)(A). Although the proceedings 

subject to the rule under 8 CFR 1208.2(c)(1) are not 

removal proceedings, they are generally governed 

by the same procedural rules as removal 

proceedings set forth in 8 CFR part 1240, subpart 

A. 8 CFR 1208.2(c)(3)(i). Thus, they incorporate by 

reference an alien’s privilege of being represented 

at a hearing conducted under 8 CFR 1208.2(c). See 

8 CFR 1240.3 (‘‘The respondent may be represented 

at the hearing by an attorney or other representative 

qualified under 8 CFR part 1292.’’). 

40Most, if not all, commenters also failed to 

acknowledge that the INA provides only a 

minimum 10-day window for an alien to obtain 

representation before an alien’s first hearing in 

removal proceedings, INA 239(b)(1), (3), 8 U.S.C. 

1229(b)(1), (3), and by practice EOIR extends that 

Continued 

that the deadline restricts aliens’ access 

to meaningful representation because 15 

days is too short to hire counsel and for 

such counsel to prepare the application. 

Commenters referenced case law that 

held that denial of a continuance to seek 

counsel deprives aliens of their rights— 

Chlomos v. INS, 516 F.2d 310, 313–14 

(3d Cir. 1975) and Njoroge v. Holder, 

753 F.3d 809, 812 (8th Cir. 2014). 

Commenters stated that those cases are 

analogous to the 15-day deadline’s 

deprivation of an alien’s right to 

counsel. 

Relatedly, commenters alleged that 

the 15-day deadline would undermine 

the practice of informing aliens of pro 

bono services at their master calendar 

hearings, pursuant to 8 CFR 

1240.10(a)(2) and (3), thus defeating the 

purpose of pro bono organizations’ 

inclusion in the ‘‘List of Pro Bono Legal 

Service Providers.’’ 

Response: As discussed both above 

and below in more detail, the rule does 

not affect an alien’s authority or ability 

to obtain counsel at no expense to the 

government in proceedings subject to 

the rule. Accordingly, the Department 

reiterates its response to similar 

comments elsewhere in the rule and 

adds the following further response. 

The rule does not limit an alien to 15 

days to find counsel. The 15-day 

deadline applies to the time in which an 

alien must file an application, absent an 

extension for good cause, and begins 

from the date of the first hearing before 

the immigration judge. The deadline 

does not establish a time period in 

which an alien must secure 

representation, and an alien may secure 

representation at any time—before, 

during, or after the alien files an asylum 

application. 

In particular, nothing precludes an 

alien from hiring counsel before the first 

hearing, and as noted above, some 

aliens subject to the rule may have 

already been in the United States for a 

considerable amount of time and, thus, 

have had years to procure counsel. An 

alien may procure representation at 

multiple points between the time the 

alien expresses a fear of return and the 

commencement of the 15-day period, as 

the alien receives information that may 

assist in procuring counsel multiple 

times before the 15-day period runs, 

even without an extension of that 

period. 

As an initial point, every alien 

detained by DHS, including those 

subject to the rule, is ‘‘notified that he 

or she may communicate with the 

consular or diplomatic officers of the 

country of his or her nationality in the 

United States.’’ 8 CFR 236.1(e). Through 

that communication, an alien’s 

consulate may assist the alien with 

obtaining representation, including an 

‘‘accredited official’’ of the alien’s 

country of nationality. See 8 CFR 

1292.1(a)(5) (authorizing an accredited 

official, defined as ‘‘[a]n accredited 

official, in the United States, of the 

government to which an alien owes 

allegiance, if the official appears solely 

in his official capacity and with the 

alien’s consent,’’ to represent an alien in 

immigration court proceedings). 

Although aliens alleging persecution 

by the government of their country of 

nationality may not be expected to 

utilize that same government to obtain 

representation, other mechanisms also 

exist to assist aliens with understanding 

their situation and obtaining 

representation. For example, DHS 

detention standards authorize the 

presentation of information to detained 

aliens regarding U.S. immigration law 

and procedures and their rights and 

options within the U.S. immigration 

system. See, e.g., Standard 6.4(I), 

National Detention Standards (rev. 

2019), https://www.ice.gov/doclib/ 

detention-standards/2019/6_4.pdf 

(‘‘Facilities shall permit authorized 

persons to make presentations to groups 

of detainees for the purpose of 

informing them of U.S. immigration law 

and procedures, consistent with the 

security and orderly operation of each 

facility. ICE/ERO encourages such 

presentations, which instruct detainees 

about the immigration system and their 

rights and options within it.’’). 

Additionally, DHS detention centers 

typically provide detainees with EOIR’s 

list of pro bono representatives and also 

provide links to that list publicly. See, 

e.g., Laredo Detention Center, Legal & 

Case Information, Nationwide pro bono 

representatives listing, https://

www.ice.gov/detention-facility/laredodetention-center. Thus, aliens may be 

informed of options and the availability 

of representation while in DHS custody. 

Additionally, for aliens subject to 

credible fear procedures, following an 

alien’s indication to apply for asylum, 

expression of fear of persecution or 

torture, or expression of fear of return to 

his or her country, the referring officer 

provides a written disclosure on Form 

M–444 that describes the alien’s ‘‘right 

to consult with other persons prior to 

the interview and any review thereof at 

no expense to the United States 

Government.’’ 8 CFR 235.3(b)(4)(i)(B), 

1235.3(b)(4)(i)(B). Next, prior to the 

credible fear interview, the alien is 

‘‘given time to contact and consult with 

any person or persons of his or her 

choosing.’’ 8 CFR 235.3(b)(4)(ii), 

1235.3(b)(4)(ii). Once the asylum officer 

determines that an alien has a credible 

fear, the alien is provided Form I–863, 

Notice of Referral to Immigration Judge, 

see 8 CFR 235.6(a)(2), 1235.6(a)(2), 

which includes an advisal regarding the 

alien’s right to representation at no 

expense to the government and an 

attached copy of EOIR’s pro bono list. 

Cf. INA 239(a)(1)(E), 8 U.S.C. 

1229(a)(1)(E) (requiring the provision of 

a list of available pro bono 

representatives at the time a notice to 

appear is issued). Moreover, for all cases 

subject to the rule, DHS provides a copy 

of the pro bono list as part of the notice 

to the alien when it issues the Form I– 

863. 

Finally, at the first hearing, the 

immigration judge also (1) advises the 

alien that he or she may apply for 

asylum in the United States or 

withholding of removal to those 

countries; (2) makes available the 

appropriate application forms; (3) 

advises the alien of the privilege of 

being represented by counsel at no 

expense to the government and of the 

consequences, pursuant to section 

208(d)(6) of the Act, of knowingly filing 

a frivolous application for asylum; and 

(4) provides to the alien a list of persons 

who have indicated their availability to 

represent aliens in asylum proceedings 

on a pro bono basis. 8 CFR 

1240.11(c)(1)(i)–(iii). These procedures 

are enshrined in current regulations and 

are not altered by the rule. In other 

words, existing regulations already 

suggest that an immigration judge will 

provide an alien with an asylum 

application and the pro bono list at the 

same hearing and, presumably, will also 

set a deadline for the filing of the 

application provided. Commenters did 

not address this existing procedure, did 

not appear to recognize that the rule 

does not alter it, except to provide a 

clear filing deadline subject to an 

extension, and did not explain why this 

existing procedure is problematic.40


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period to asylum-and-withholding-only 

proceedings. Thus, an alien will have the 

statutorily-required minimum amount of time to 

obtain counsel, and the rule does not alter that 

procedure. 

41 Despite the availability of the option for 

representation at no expense to the government in 

proceedings subject to this rule, 8 CFR 1240.3, and 

the fact that the overwhelming majority of aliens 

seeking asylum obtain representation, the 

Department recognizes that a certain small 

percentage of aliens do not obtain representation. 

The Department understands that some aliens do 

not secure representation because they do not wish 

to pay the fee charged by a potential representative. 

The Department also understands that many 

representatives, due to ethical or professional 

responsibility obligations, will not take cases of 

aliens who are ineligible or present weak claims for 

relief or protection from removal because they do 

not wish to charge money for representation when 

representation is unlikely to affect the outcome of 

the proceeding. These situations illustrate only that 

some aliens may not ultimately secure 

representation for reasons common to issues of 

representation in all civil cases—i.e., the cost of the 

representation and the strength of the case—not that 

aliens are limited or prohibited from obtaining 

representation by this or any other Department 

regulation. See United States v. Torres-Sanchez, 68 

F.3d 227, 231 (8th Cir. 1995) (‘‘Although TorresSanchez expressed some frustration over his 

attempt to obtain counsel, that frustration, in our 

view of the record, stemmed from his realization 

that he faced the inevitable consequence of 

deportation, not from a lack of opportunity to retain 

counsel. In any event, the mere inability to obtain 

counsel does not constitute a violation of due 

process.’’). As the Department is not involved in 

discussions between respondents and potential 

representatives, it cannot definitively state every 

reason that an alien who seeks representation may 

not obtain it. Nevertheless, it can state that this rule 

does not limit or restrict any alien’s ability to obtain 

representation in immigration proceedings. 

42The Department recognizes that aliens should 

receive a fair opportunity to secure counsel. Matter 

of C–B–, 25 I&N Dec. 888 (BIA 2015). The Board has 

not specifically defined what a reasonable amount 

of time is for purposes of obtaining representation, 

and the respondent in Matter of C–B– was given 

only eight days between the issuance of an NTA 

and his first hearing, in apparent contravention of 

INA 239(b)(1), 8 U.S.C. 1229(b)(1). See id. at 889. 

Nevertheless, Matter of C–B– cannot be interpreted 

to contradict the INA, and the INA clearly indicates 

that 10 days between the service of a notice to 

appear and the first hearing is a sufficient amount 

of time to obtain representation. See INA 239(b)(3), 

8 U.S.C. 1229(b)(3). Accordingly, this rule is not in 

tension with Matter of C–B– and does not deviate 

from recognizing the statutory parameters for 

providing time for an alien to obtain representation. 

43To the extent commenters suggest that the rule 

disadvantages aliens without meritorious claims by 

making it more difficult for such aliens to delay 

their removal from the United States, the 

Department finds such a suggestion unavailing. 

Overall, the Department finds any rationale for 

encouraging or supporting the dilatory adjudication 

of cases, especially cases lacking merit, both 

inherently unpersuasive and wholly outweighed by 

the importance of timeliness and fairness— 

especially to detained aliens with meritorious 

claims—in adjudicating asylum applications. 

44See EOIR, Adjudication Statistics: New Cases 

and Total Completions—Historical (Oct. 13, 2020), 

https://www.justice.gov/eoir/page/file/1139176/ 

download; see also EOIR, Adjudication Statistics: 

Pending Cases, New Cases, and Total Completions 

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

file/1242166/download. 

Given the multiple points at which 

aliens are advised of the availability of 

consultation or representation prior to 

the completion of the 15-day deadline 

and the availability of an extension of 

that deadline for good cause, the 

Department rejects commenters’ 

assertions that the rule inhibits or 

eliminates an alien’s meaningful 

opportunity to obtain representation.41

Moreover, as noted elsewhere, in 

practice, aliens have far more time than 

15 days to obtain representation. 

Similarly, the rule does not deprive 

counsel of time to prepare an alien’s 

claim. Because the government is not 

required to provide aliens with 

representation, the alien is responsible 

for securing or consulting with counsel, 

and the time afforded counsel is often 

a function of how diligent an alien is in 

seeking representation. See INA 

240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); Cf. 

Hidalgo-Disla v. INS, 52 F.3d 444 (2d 

Cir. 1995) (finding an immigration 

judge’s decision to proceed with a 

hearing after providing an alien 26 days 

to seek counsel was not erroneous and 

dismissing as frivolous an appeal 

asserting that it was); Ghajar v. INS, 652 

F.2d 1347, 1348–49 (9th Cir. 1981) 

(‘‘Ghajar’s assertion that she was denied 

due process because she was not 

granted a second continuance to allow 

her attorney further time to prepare for 

the deportation hearing is without merit 

. . . . One full month elapsed between 

the date of the show cause order and the 

date on which the hearing ultimately 

took place . . . . The immigration judge 

did not abuse his discretion in refusing 

to grant a second continuance.’’). 

Further, a representative may seek an 

extension of the deadline to file an 

application and may seek a continuance 

of any scheduled hearing. Thus, the 

rule’s 15-day deadline itself does not 

deprive counsel of adequate time to 

prepare the application. 

To reiterate, the deadline does not 

affect an immigration judge’s ability to 

grant a continuance for good cause, see 

8 CFR 1003.39, including one to find 

counsel.42 The 15-day deadline applies 

to the time period in which an alien 

must file an application, absent an 

extension for good cause; it does not 

establish a time period in which an 

alien must secure counsel and thus does 

not interfere with an immigration 

judge’s discretion to grant a continuance 

in that regard. For these reasons, the 

deadline does not deprive an alien of 

the opportunity to obtain counsel of his 

her choosing at no expense to the 

government. 

Likewise, the deadline does not affect 

the requirement that an immigration 

judge advise the alien of (1) the right to 

representation at no expense to the 

government, and (2) the availability of 

pro bono legal services and whether the 

alien received a list of such pro bono 

legal service provider, see 8 CFR 

1240.10(a)(1) and (2), at the first 

hearing, nor does it affect the 

requirement of the immigration judge to 

provide certain advisals to aliens with 

an intent to apply for asylum, including 

the provision of an asylum application 

and a copy of the pro bono list, 8 CFR 

1240.11(c)(1). In fact, the rule makes it 

explicit that immigration judges must 

follow those procedures in proceedings 

conducted under 8 CFR 1208.2(c)(1) and 

(2). 8 CFR 1208.4(d). 

vii. Deadline Is Biased in Favor of the 

Government 

Comment: Commenters explained 

that, under recently enacted rules, the 

government could ‘‘file evidence 

without it being contested,’’ thereby 

increasing bias toward the government 

in these proceedings. 

Response: In response to commenters’ 

specific concerns with evidence filed by 

the government, that concern relates to 

a separate rulemaking and is thus 

outside the scope of this final rule. 

In regard to a general concern of bias 

towards the government, which the 

Department understands comments to 

have implicitly referenced, the 

Department disagrees that the deadline 

disfavors aliens or shows bias in favor 

of the government. The deadline is 

intended to effectuate efficient 

processing, consistent with the 

regulatory directive that applications of 

detained aliens be given ‘‘expedited 

consideration’’ where possible, 8 CFR 

1208.5(a), and is fully consistent with 

longstanding authority to set deadlines 

in immigration proceedings, 8 CFR 

1003.31(c). Efficient processing benefits 

both the government and aliens, 

especially aliens who have meritorious 

claims.43 Given the pending caseload 

and the recent uptick in proceedings 

initiated by DHS,44 the government has 

an interest in timely adjudications, 

consistent with applicable law and 

regulations, so that it may continue to 

accomplish its mission of fairly, 

expeditiously, and uniformly 

interpreting and administering the 

nation’s immigration laws. Likewise, 

detained aliens should want their 

claims considered in a timely fashion in 

order to receive relief or protection and 

subsequent release from detention as 

quickly as possible. 

Finally, as discussed supra, the 

Department rejects any insinuation that 

its adjudicators are biased or that it is 


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engaging in this rulemaking for biased 

reasons against either party in 

immigration proceedings. Generalized, 

ad hominem allegations of bias or 

impropriety are insufficient to 

‘‘overcome a presumption of honesty 

and integrity in those serving as 

adjudicators.’’ Withrow, 421 U.S. at 47. 

Accordingly, the Department declines to 

accept commenters’ unfounded 

suggestions of bias. Chem. Found., Inc., 

272 U.S. at 14–15 (‘‘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.’’). 

viii. Conflicts With the INA 

Comment: Commenters argued that 

the 15-day filing deadline conflicts with 

the INA for multiple reasons. For 

example, many commenters argued that 

the 15-day filing deadline conflicts with 

the statutory one-year bar for asylum 

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

1158(a)(2)(B). Commenters further 

argued that applying the 15-day filing 

deadline to aliens’ applications for 

withholding of removal and protection 

under the CAT conflicts with the Act 

because Congress did not include any 

similar filing deadline requirement for 

those applications. See generally INA 

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

Response: As an initial point, most, if 

not all, commenters on this issue failed 

to recognize or address (1) the existence 

of the 10-day filing deadline in 8 CFR 

1208.5(b) with no noted challenges to its 

alleged inconsistency with the INA; (2) 

the longstanding ability of Department 

adjudicators, under 8 CFR 1003.31(c) 

and Matter of R–R–, 20 I&N Dec. 547, 

549 (BIA 1992) (‘‘The Board has long 

held that applications for benefits under 

the Act are properly denied as 

abandoned when the alien fails to 

timely file them.’’), to set filing 

deadlines, including for asylum 

applications within one year of an 

alien’s arrival in the United States; (3) 

the affirmation of the enforcement of 

such deadlines by the Board and by 

Federal courts, including for deadlines 

set well within one year of arrival, see, 

e.g., Matter of R–C–R–, 28 I&N Dec. 74, 

75–77 (BIA 2020) (affirming a decision 

finding an alien’s opportunity to file for 

asylum abandoned for an alien who 

entered the United States on March 13, 

2019, and failed to file an asylum 

application by the deadline set by the 

immigration judge of December 6, 2019); 

Jie Zhu v. U.S. Att’y Gen., 648 F. App’x 

957, 960–62 (11th Cir. 2016) (affirming 

a decision finding an alien’s 

opportunity to file for asylum 

abandoned for an alien who entered the 

United States on June 8, 2014, and 

failed to file an asylum application by 

the deadline set by the immigration 

judge of September 3, 2014); Rageevan 

v. U.S. Att’y Gen., 151 F. App’x 751, 

753–56 (11th Cir. 2005) (affirming a 

decision finding an alien’s opportunity 

to file for asylum abandoned for an alien 

who arrived in the United States on 

January 18, 2004, and failed to file a 

complete asylum application by the 

deadline set by the immigration judge of 

May 7, 2004); cf. Alsamhouri v. 

Gonzales, 484 F.3d 117, 123 (1st Cir. 

2007) (‘‘The IJ was then well within his 

discretion to find that, as against [the 

alien’s] disregard of a known deadline, 

the government’s strong interest in the 

orderly and expeditious management of 

immigration cases justified the denial of 

a continuance.’’); (4) Federal case law 

holding that a filing deadline can be 

applied to an application for 

withholding of removal under the INA 

and for protection under the CAT, see, 

e.g., Taggar v. Holder, 736 F.3d 886, 

889–90 (9th Cir. 2013) (‘‘Taggar 

separately argues that no deadline can 

lawfully be imposed on applications for 

relief under the Convention Against 

Torture. This is incorrect.’’); Lakhavani 

v. Mukasey, 255 F. App’x 819, 822–23 

(5th Cir. 2007) (‘‘Other circuits have 

held that petitioners can waive CAT or 

asylum claims by failing to raise them 

at the time designated by the IJ under 8 

CFR 1003.31. The IJ gave Lakhavani the 

opportunity to file an application for 

withholding at his April 2002 hearing, 

and he failed to do so. The BIA correctly 

affirmed the IJ’s decision denying 

Lakhavani leave to file an untimely 

application for withholding of 

removal.’’ (internal citations omitted)); 

cf. Foroglou v. Reno, 241 F.3d 111, 113 

(1st Cir. 2001) (‘‘On review, Foroglou’s 

main argument is that the Board’s time 

limit on petitions to reopen is itself 

invalid because it would result in 

denying relief to deportees who might 

then suffer torture, contrary to the [CAT] 

and to the policies embodied in federal 

legislation and regulations that 

implement the [CAT] or otherwise 

protect the rights of aliens. The short 

answer to this argument is that Foroglou 

points to nothing in the [CAT] or 

legislation that precludes the United 

States from setting reasonable time 

limits on the assertion of claims under 

the [CAT] in connection with an 

ongoing proceeding or an already 

effective order of deportation. Even in 

criminal cases, constitutional and other 

rights must be asserted in a timely 

fashion.’’); and, (5) the logical and legal 

ramifications of the position that an 

immigration judge must wait in every 

case of an alien who has been in the 

United States less than one year—and 

regardless of whether the alien is 

detained—until one year has elapsed 

from the time of an alien’s arrival in the 

United States before proceeding with 

the case to ensure that an alien is 

provided one year in which to file for 

asylum. To the extent that commenters’ 

concerns on this point failed to address 

relevant law or to engage with the 

implications of their position, especially 

for detained aliens, the Department 

finds them unavailing. 

Under what is commonly referred to 

as the ‘‘one-year bar,’’ an alien seeking 

asylum must generally file his or her 

application within one year of arrival in 

the United States. INA 208(a)(2)(B), 8 

U.S.C. 1158(a)(2)(B) (providing that an 

alien may not apply for asylum ‘‘unless 

the alien demonstrates by clear and 

convincing evidence that the 

application has been filed within 1 year 

after the date of the alien’s arrival in the 

United States’’); see also 8 CFR 

1208.4(a)(2). An alien may be excepted 

from the one-year requirement due to 

‘‘changed circumstances [that] 

materially affect the applicant’s 

eligibility for asylum or extraordinary 

circumstances related to the delay in 

filing an application within’’ the oneyear period. INA 208(a)(2)(D), 8 U.S.C 

1158(a)(2)(D); see also 8 CFR 

1208.4(a)(4) and (5). 

The ability of immigration judges to 

set and enforce filing deadlines for 

applications does not conflict with the 

statutory one-year bar. Immigration 

judges have long maintained the 

authority to set and enforce time limits 

on the filing of applications for asylum 

and withholding of removal in the 

proceedings before them. See Matter of 

Jean, 17 I&N Dec. 100, 102 (BIA 1979) 

(explaining that ‘‘it is well within the 

authority of the immigration judge . . . 

to set reasonable time limits for the 

filing of written applications for 

asylum’’) Similarly, immigration judges 

have long maintain the authority to set 

and enforce time limits on the filing of 

applications for protection under the 

CAT. Taggar, 736 F.3d 890 (holding that 

immigration judges can set and enforce 

deadlines for the filing of CAT 

applications). This authority reflects 

‘‘the government’s strong interest in the 

orderly and expeditious management of 

immigration cases.’’ Gomez-Medina v. 

Holder, 687 F.3d 33, 37 (1st Cir. 2012). 

Although Congress enacted a maximum 

outer limit of one year from arrival for 

aliens to apply for asylum in INA 

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


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45Congress enacted the one-year bar in INA 

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

backdrop of longstanding Department regulations 

and practice finding asylum applications to be 

abandoned if they were not filed by a deadline 

specified by an immigration judge, e.g., Matter of 

R–R–, 20 I&N Dec. at 549 (‘‘The Board has long held 

that applications for benefits under the Act are 

properly denied as abandoned when the alien fails 

to timely file them.’’), and it could have easily 

phrased it in the affirmative to state that an alien 

shall be afforded one year from the date of arrival 

in order to apply for asylum, rather than by framing 

it in the negative as an outer deadline, INA 

208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) (‘‘paragraph (1) 

shall not apply to an alien unless the alien 

demonstrates by clear and convincing evidence that 

the application has been filed within 1 year after 

the date of the alien’s arrival in the United States’’). 

In other words, the statutory phrasing indicates that 

an alien has, at most, one year after arrival to apply 

for asylum—not at least one year, as urged by 

commenters. Moreover, Congress’s phrasing against 

the backdrop of longstanding agency practice is 

additional evidence that the language in in INA 

208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B) was not 

intended to displace the Department’s ability to set 

filing deadlines in immigration proceedings for 

asylum applications. Cf. NLRB v. Bell Aerospace 

Co. Div. of Textron, Inc., 416 U.S. 267, 275 (1974) 

(‘‘[C]ongressional failure to revise or repeal the 

agency’s interpretation is persuasive evidence that 

the interpretation is the one intended by 

Congress’’). Indeed, as discussed, infra, if 

commenters were correct, then the Department’s 

practice of setting filing deadlines prior to the 

enactment of INA 208(a)(2)(B), 8 U.S.C. 

1158(a)(2)(B) was arguably inappropriate because 

the INA provided no deadline for an alien to apply 

for asylum and, thus—according to the commenters’ 

logic—immigration judges could never have set a 

deadline consistent with the statute. However, there 

is no evidence, either before or after the enactment 

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

Congress intended to displace an immigration 

judge’s authority to set filing deadlines in order to 

manage dockets efficiently. 

nothing in that provision 45 or the INA 

precludes immigration judges from 

setting a specific deadline for the filing 

of an asylum application in immigration 

proceedings in order to promote the 

‘‘orderly and expeditious management 

of immigration cases.’’ Gomez-Medina, 

687 F.3d at 37. 

Moreover, if the Department accepted 

commenters’ logic, aliens in removal 

proceedings would, for example, be able 

to delay their proceedings for up to a 

year by simply stating that they intend 

to file an asylum application by some 

future date. See Matter of Jean, 17 I&N 

Dec. at 102 (‘‘To allow otherwise would 

permit a deportable alien to avoid the 

conclusion of his deportation case and 

thus his departure by merely requesting 

the relief but not choosing to file the 

claims.’’). This is an erroneous reading 

of the statute and regulations and would 

eviscerate immigration judges’ ability to 

manage proceedings. See, e.g., 8 CFR 

1240.1(c) (providing immigration judges 

the ability to ‘‘regulate the course of the 

hearing’’). 

Commenters’ reading of INA 

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

would also raise additional issues, 

including potential constitutional issues 

related to prolonged detention. For 

example, under the commenters’ view, 

a detained alien, such as one covered by 

the rule, could continue to delay his or 

her proceedings up to a year after arrival 

without filing for asylum while 

simultaneously raising arguments that 

he or she should be released from 

custody because the prolonged 

detention has implicated constitutional 

rights. See, e.g., Velasco Lopez v. 

Decker, 978 F.3d 842, 852 (2d Cir. 2020) 

(‘‘Detention under [INA 236(a),] 

§ 1226(a) is frequently prolonged 

because it continues until all 

proceedings and appeals are 

concluded. . . . The longer the 

duration of incarceration, the greater the 

deprivation.’’). Nothing in INA 

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

however, contemplates its use as a basis 

for either prolonging immigration 

proceedings or as a wedge to obtain an 

alien’s release from detention, 

especially in situations where Congress 

has otherwise indicated that 

proceedings should be expedited. Cf. 

Matter of L–N–Y, 27 I&N Dec. 755, 759 

(BIA 2020) (‘‘The Immigration Courts 

and the Board expedite the adjudication 

of cases involving detained aliens, 

recognizing the liberty interest of 

detained aliens and the interest of the 

Government to reasonably limit the 

expense of detention.’’). Additionally, if 

commenters were correct that INA 

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

provides an alien with an absolute right 

to file for asylum at any time within one 

year after arrival in the United States, 

then, by that same logic, the lack of a 

filing deadline prior to the enactment of 

that provision meant that previously 

aliens had an absolute right to apply for 

asylum at any time after arrival. 

However, the Department is unaware of 

any court adopting such a position, nor 

is it aware of any court adopting the 

view urged by commenters regarding 

the relationship between INA 

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

the 15-day deadline in the rule. In short, 

although the Department acknowledges 

and has fully considered commenters’ 

assertions on this point, it finds them 

unavailing and unpersuasive for all of 

the reasons given herein. 

ix. Recommendations 

Comment: Many commenters 

provided a wide range of 

recommendations to the Department. 

For example, commenters suggested 

that if EOIR imposed this short 

deadline, then government should 

provide aliens with attorneys and 

translators to ensure that they can meet 

the deadline. Some commenters 

acknowledged the Department’s concern 

regarding degradation or loss of 

evidence, but they suggested a deadline 

longer than 15 days to balance evidencerelated concerns with concerns that 

aliens need adequate time to gather 

evidence. 

Commenters suggested that the 

Department should include an 

exception to the filing deadline for 

pandemic-related delays, such as filing 

delays due to COVID–19. 

Commenters asserted that aliens 

should be granted a ‘‘per se extension’’ 

whenever due process rights are 

threatened, such as the right to counsel, 

to ensure those rights are not violated. 

For example, the commenters explained 

that an alien who seeks to retain counsel 

should get an automatic extension on 

the 15-day deadline to find 

representation who can assist with the 

application. The commenters predicted 

that the exceptions would render the 

rule unworkable. 

One commenter, who generally 

supported the Department’s inclusion of 

the 15-day submission deadline, 

recommended that the Department 

provide the same 15-day deadline for 

aliens in ‘‘withholding-only’’ 

proceedings under 8 CFR 1208.2(c)(2). 

Response: The Department 

acknowledges and appreciates the 

commenters’ recommendations. It has 

considered all of them and adopted one 

as discussed below. Some 

recommendations are beyond the scope 

of this rulemaking and potentially 

beyond the scope of rulemaking 

altogether. For example, the Department 

cannot simply provide aliens a right to 

counsel or to personal translators in all 

immigration cases by regulation due to 

the significant amount of Congressional 

appropriations—far in excess of EOIR’s 

current budget—that would be required 

to effectuate such a rule. Further, as 

such a proposal was not part of the 

NPRM—and implicates a potentially 

massive overhaul of immigration court 

procedures—it would not be 

appropriate to include it in a final rule 

without additional comment and study. 

Regarding recommendations related 

to exceptions to the deadline, the 

Department believes that the rule’s 

allowance of an extension of that 

deadline for good cause addresses and 

responds to those recommendations, as 

well as the continued availability of 

continuances in appropriate cases, 

which is not affected by the rule. The 

Department recognizes that no rule can 

cover every potential scenario, 

particularly in the context of hundreds 

of thousands of cases with asylum 

applications. Consequently, it declines 

to establish any per se rules about 


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46To the extent that immigration courts may have 

previously failed to follow the existing regulations, 

the Department reiterates that its employees are 

expected to follow all applicable regulations. 

47The Department further notes that the recentlyfinalized joint rule, Procedures for Asylum and 

Withholding of Removal; Credible Fear and 

Reasonable Fear Review, signed by the Attorney 

General and the Acting Secretary of Homeland 

Security on December 2, 2020, codifies an 

immigration judge’s authority to pretermit asylum 

applications that fail to present a prima facie claim 

for relief. See 85 FR at 36277. Even if that 

codification does not go into effect, immigration 

judges nevertheless possess authority to pretermit 

legally deficient asylum applications in certain 

instances. Id. Thus, this rule would ensure that 

aliens are afforded all opportunities to correct 

deficiencies in their applications in order to ensure 

that their claim for relief is fully presented before 

an immigration judge would consider any questions 

of pretermission. 

whether an extension or a continuance 

is warranted and expects that 

immigration judges will adjudicate such 

requests consistent with applicable law 

and mindful of an alien’s detention 

status and the direction in 8 CFR 

1208.5(a) to adjudicate such cases 

expeditiously. 

The Department agrees with the 

commenter who recommended applying 

the 15-day deadline to applications for 

statutory withholding of removal and 

protection under the CAT for aliens in 

proceedings under 8 CFR 1208.2(c)(2). 

The Department sees no reason to 

distinguish between aliens subject to 

proceedings under 8 CFR 1208.2(c)(1) 

and those subject to proceedings under 

8 CFR 1208.2(c)(2), as both groups are 

generally detained. Moreover, the 

reasons underpinning the application 

deadline for 8 CFR 1208.2(c)(1)—e.g., 

most aliens subject to the rule are 

detained, that aliens with meritorious 

claims have a strong incentive to obtain 

relief or protection—and potentially 

release from detention—as quickly as 

possible, that aliens who have recently 

claimed a fear of persecution or torture 

will be well-situated to perfect that 

claim quickly through the filing of an 

application, that filing deadlines are a 

well-established part of immigration 

court practice and are utilized by courts 

at all levels, that an even shorter filing 

deadline has existed for many years for 

a particular class of asylum applicants 

with no noted challenges or complaints, 

that delays in adjudication may risk 

evidence degradation and may make it 

more difficult to obtain pro bono 

representation, that the deadline is not 

absolute because it may be extended in 

appropriate circumstances, and that the 

rule does not alter longstanding rules 

and practices allowing aliens to 

supplement an application and to seek 

to have an immigration consider latefiled evidence—apply with equal force 

to proceedings under 8 CFR 

1208.2(c)(2). Accordingly, in response to 

the recommendation of at least one 

commenter, the final rule adopts the 

commenter’s suggestion and edits the 

language in 8 CFR 1208.4(d)(1) to make 

the 15-day deadline, with the possibility 

of an extension for good cause, 

applicable to aliens in proceedings 

under 8 CFR 1208.2(c)(2) seeking 

statutory withholding of removal or 

protection under the CAT. 

b. Concerns With Changes Regarding 

Refiling Incomplete Applications 

i. Completeness Requirement 

Comment: Commenters expressed 

concerns about requiring the 

immigration court to reject applications 

that are incomplete or that have other 

minor mistakes without providing any 

exceptions. Commenters explained that 

this provision would result in 

applications being rejected for 

technicalities or due to minor instances 

of confusion, citing, for example, 

hypotheticals of the immigration court 

denying the application of an asylum 

seeker without a middle name or 

children because the corresponding 

name and children boxes were 

purposefully left blank. 

Commenters asserted that the rule 

was unnecessary and complained that 

the Department did not address why the 

change was necessary—specifically, 

why applicants could no longer 

complete their applications before the 

court during a hearing. 

Commenters also stated that it will be 

difficult, if not impossible, for some 

applicants to submit a complete 

application due to a lack of command of 

the English language, a lack of access to 

supporting evidence, and the effects of 

trauma. Other commenters noted that 

the structure of the form itself increases 

this difficulty because of the number of 

questions and blank boxes; the 

formatting of multiple boxes or lines per 

questions; and a lack of clarity regarding 

how to address a question that does not 

apply based on answering ‘‘no’’ to the 

immediately preceding question. 

Commenters noted that their concerns 

may be even greater in the future if DHS 

moves forward with codifying proposed 

amendments to the Form I–589, 

Instructions, which would add to the 

form’s length and general complexity. 

Other commenters suggested that 

inaccuracies and mistakes will be 

inevitable for aliens subject to the filing 

deadline imposed by the rule. 

Numerous commenters compared the 

rule’s requirement to what commenters 

described as USCIS’s policy of rejecting 

applications that fail to follow form 

instructions, namely answering every 

question. Commenters explained that 

the USCIS policy has led to confusion 

and inconsistencies, and commenters 

predicted that the rule will create 

similar issues before the immigration 

courts. 

Lastly, commenters expressed 

concerns that the rule removes the 

completeness determination from 

immigration judges and places it on 

untrained agency staff; such a shift, 

commenters alleged, is inefficient and 

will further strain an already 

overburdened system. 

Response: As an initial mater, 

commenters misconstrue the changes 

implemented by this rule or fail to 

acknowledge what the rule does not 

actually change. For instance, it does 

not create a new completeness 

requirement for the submission of 

Forms I–589. Indeed, this requirement 

already exists in the relevant 

regulations. See 8 CFR 1208.3(c)(3) (‘‘An 

asylum application that does not 

include a response to each of the 

questions contained in the Form I–589, 

is unsigned, or is unaccompanied by the 

required materials specified in 

paragraph (a) of this section is 

incomplete.’’); see also Form I–589 

Instructions, Pt. 1, Sec. V. (‘‘You must 

provide the specific information 

requested about you and your family 

and answer all the questions asked. If 

any question does not apply to you or 

you do not know the information 

requested, answer ‘‘none,’’ ‘‘not 

applicable,’’ or ‘‘unknown.’’) (emphasis 

in original). This rule merely clarifies 

this existing standard by including the 

necessity to follow the Form I–589 

instructions and other filing-related 

regulations. 

In response to commenters who 

requested an explanation for why 

applicants would no longer be allowed 

to supply missing information during a 

hearing before an immigration judge, the 

Department notes that such a process 

does not comply with these existing 

regulations.46 By ensuring that 

applications are complete at filing, the 

parties and court can be confident that 

they are proceeding with an 

adjudication on the full application and, 

as noted in the proposed rule, that the 

application is completed as timely as 

possible. Further, requiring a complete 

application protects the alien by 

ensuring that there are no incorrect 

assumptions regarding the facts of an 

alien’s claim or personal status as set 

out in the application.47 Moreover, 

allowing applicants to complete 

applications in court is inefficient and 

uses valuable court time that is better 

spent adjudicating issues in dispute. See 

8 CFR 1240.11(c)(3) (requiring a hearing 


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on an asylum application only when 

necessary ‘‘to resolve factual issues in 

dispute’’). As noted in the proposed 

rule, however, aliens may continue to 

supplement or amend a previously filed 

asylum application after the application 

is filed, subject to an immigration 

judge’s discretion. See 8 CFR 1208.4(c). 

The Department also disagrees with 

concerns regarding agency staff making 

completeness determinations rather 

than adjudicators and categorically 

rejects the ugly, underlying insinuation 

that its legal support employees are too 

ignorant or incompetent to determine 

whether an application is complete. By 

requiring all questions to be answered, 

there is no room for discretion as to 

what responses are necessary; thus, all 

applicants are subject to the same 

requirements. Similarly, commenters 

did not explain why the acceptance of 

an incomplete application would be 

either desirable or efficient, and the 

Department is aware of no bases for 

doing so. The completeness requirement 

provides a clear, logical, and 

straightforward guidepost and one that 

most individuals understand. Moreover, 

a completeness requirement has existed 

in the regulations for many years with 

no noted difficulties; to the contrary, 

asylum applications have risen 

significantly in recent years, even with 

the requirement that the application be 

complete. See, e.g., EOIR, Adjudication 

Statistics: Total Asylum Applications 

(Oct. 13, 2020), https://www.justice.gov/ 

eoir/page/file/1106366/download. 

Immigration court staff receive training 

on reviewing filings for sufficiency and 

regularly reject deficient filings as part 

of their duties. 

Regarding commenters’ concerns 

about the grammatical structure of the 

Form I–589’s questions, the amount of 

questions, or the English language 

requirement, the Department notes that 

this rule does not make any changes to 

the Form I–589 itself. Further, to the 

extent that commenters’ suggest that the 

Department should amend the Form I– 

589 to address such concerns, the 

Department notes that although the 

Form I–589 is a shared form between 

EOIR and DHS, it is managed and 

updated by DHS. Accordingly, altering 

the form is beyond the scope of this 

rulemaking and the Department’s 

authority, and commenters’ concerns 

about the form itself are most 

appropriately directed to DHS. 

Similarly, commenters’ concerns 

about USCIS are beyond the scope of 

this rulemaking, as USCIS is a separate 

agency beyond the purview of the 

Department. Further, the Department 

reiterates that the completeness 

requirement is not novel; rather, it has 

been an existing requirement for many 

years, and the Department is unaware of 

any issues, challenges, or complaints 

regarding it previously. Thus, 

commenters’ suggestion that an existing 

regulation will lead to future confusion 

at EOIR is purely speculative and 

unpersuasive. 

Regarding concerns about applicants’ 

past trauma and limited access to 

evidence, and its effect on applicants’ 

ability to complete their applications, 

the Department reiterates that the 

completeness requirement has existed 

for many years and that allegations of 

trauma or access to evidence have not 

previously been alleged to be such a 

pervasive or systemic issue as to 

warrant an exception to the general rule 

that applications should be filled out 

completely. The Department certainly 

recognizes the potential existence of 

trauma for aliens with meritorious 

claims and associated difficulties, but 

this rule, overall, helps ensure that such 

aliens receive expeditious consideration 

of their claims and favorable 

adjudications so that they can obtain the 

relief they deserve without any undue 

delay. Moreover, at a minimum, every 

applicant must present his or her case 

for adjudication, which requires filing 

an application in accordance with the 

regulations and form instructions. This 

includes responding to every question 

on the Form I–589 and submitting any 

supporting evidence. 

The Department rejects the notion 

that the completeness requirement is 

unnecessarily complicated or confusing, 

and it is unaware of any situation—and 

commenters did not provide one—in 

which an incomplete application is 

deemed acceptable or even desirable. 

Rather, the Department believes that 

incomplete applications may cause 

confusion and that such confusion will 

be eliminated by requiring applications 

to be fully completed before they are 

filed and accepted for adjudication. The 

Department believes requiring 

completion of the Form I–589 will avoid 

potentially differing interpretations 

from immigration staff as to what is 

‘‘complete’’ and will prevent the 

possibility of uneven filing acceptance 

practices at the immigration courts. In 

addition, by following this requirement, 

applicants can ensure that they did not 

inadvertently fail to complete any fields 

and can be confident that the 

immigration judge is adjudicating a 

complete asylum application. 

Lastly, commenters’ assertions that 

incomplete applications will be rejected 

and result in a denial of relief are 

incorrect. The return of an incomplete 

application is not an adjudication on the 

merits and does not automatically result 

in an immediate ‘‘denial’’ of relief. 

Rather, incomplete applications will be 

returned to the applicants, who will 

have 30 days to complete and return the 

application. This is discussed in more 

detail in section II.C.4.b.iii. 

ii. Removal of Deadline for Immigration 

Court 

Comment: Many commenters objected 

to the proposed amendment at 8 CFR 

1208.3(c)(3) that an alien’s incomplete 

asylum application would not be 

deemed complete if the immigration 

court failed to return the incomplete 

application within 30 days. Instead, the 

immigration courts would continue to 

reject incomplete applications in a 

‘‘timely’’ manner but without a 

maximum allowable period of time. 

Commenters objected that the rule 

would give the immigration courts an 

indeterminate amount of time to reject 

asylum applications for incompleteness. 

Commenters raised concerns that the 

lack of a deadline would make 

proceedings less predictable and make it 

more difficult for asylum seekers to 

appropriately budget their savings 

before being able to possibly obtain 

work authorization. 

Other commenters argued that the 

removal of the deadline for the 

immigration courts is contrary to the 

Department’s justifications elsewhere in 

the rule to ensure that proceedings 

occur in a timely and predictable 

manner and noted that shortening the 

30-day time period for the rejection of 

applications, rather than removing the 

deadline altogether, would instead be 

more efficient. Other commenters 

argued that the Department did not 

sufficiently justify this provision in 

general. 

Further, commenters stated that the 

rule’s requirement that immigration 

courts return incomplete asylum 

applications to applicants in a ‘‘timely 

fashion’’ to be vague and arbitrary and 

argued that the Department should 

provide some sort of definition or 

specific standard. At least one 

commenter expressed concern that the 

standard is vague enough to allow 

gamesmanship, citing a hypothetical 

where the immigration judge waits to 

reject an application as incomplete until 

just after the alien’s one-year filing 

deadline expires. 

Moreover, commenters expressed 

general disbelief that the courts would 

return incomplete applications or alert 

aliens of deficient applications in a 

timely manner, noting, for example, 

general processing delays by USCIS or 

other agencies. 

Commenters also thought it was 

generally unfair that asylum seekers 


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48The Department notes, parenthetically, that the 

commenter’s hypothetical is also legally inaccurate. 

An alien whose asylum application is filed before 

the one-year deadline but is rejected as incomplete 

may be able to demonstrate extraordinary 

circumstances excusing the application of the 

deadline provided that the alien refiles the 

application within a ‘‘reasonable period thereafter,’’ 

which the 30 days allowed for by this rule would 

certainly be. 8 CFR 1208.4(a)(5)(v). Thus, the 

commenter’s hypothetical, even if it were realistic, 

would not result in the denial of the alien’s 

application as untimely. 

49Again, the Department reiterates that, as noted 

in footnote 47 above, this provision would further 

benefit aliens who may wish to prevent an 

immigration judge from considering whether to 

pretermit an incomplete application. 

50As a general matter, the Department 

emphasizes that questions of employment 

authorization eligibility are adjudicated by DHS and 

not by the Department. Indeed, that is why this rule 

removes regulatory provisions from chapter V of 8 

CFR pertaining to alien employment authorization. 

Nevertheless, the Department addresses 

commenters’ concerns to the extent they are 

directly related to the provisions of this rule. 

would be held to time restrictions, such 

as a 30-day correction deadline, while 

immigration courts are not held to a 

similar standard. 

Response: As an initial point, the 

Department categorically rejects the 

suggestion of at least one commenter 

that an immigration judge would engage 

in gamesmanship by purposefully 

delaying the rejection of an application 

solely to be able to deny it.48 As 

discussed, supra, commenters’ attacks 

on the integrity of immigration judges 

are unfounded and have no place in this 

rulemaking. 

Further, comments about USCIS are 

beyond the scope of this rulemaking, as 

USCIS is a separate agency beyond the 

purview of the Department. USCIS is 

part of DHS, while EOIR is part of the 

Department. See Department of 

Homeland Security, Operational and 

Support Components (Nov. 17, 2018), 

https://www.dhs.gov/operational-andsupport-components. To the extent that 

commenters have concerns about 

procedures utilized by USCIS, those 

concerns are most appropriately 

directed to DHS. 

As discussed above in section 

II.C.4.b.i, all asylum applications must 

be submitted ‘‘in accordance with the 

instructions on the form.’’ 8 CFR 

1208.3(a). The instructions, in turn, 

inform applicants that they ‘‘must 

provide the specific information 

requested about [their] family and 

answer all the questions asked.’’ See 

Form I–589, Application for Asylum 

and for Withholding of Removal, 

Instructions, 5 (Aug. 25, 2020), https:// 

www.uscis.gov/sites/default/files/ 

document/forms/i-589instr.pdf 

(emphasis in original). Further, ‘‘[a]n 

asylum application that does not 

include a response to each of the 

questions contained in the Form I–589, 

is unsigned, or is unaccompanied by the 

required materials specified in [8 CFR 

1208.3(a)] is incomplete.’’ 8 CFR 

1208.3(c)(3). Accordingly, the 

Department disagrees with commenters’ 

general concerns that the Department 

should not remove the 30-day deadline 

for the immigration court to return an 

incomplete application or else have the 

application deemed complete. Without 

this change, the provision at 8 CFR 

1208.3(c)(3) is inconsistent with the 

overarching requirement that aliens 

must submit the asylum application in 

accordance with the instructions on the 

form—in other words, completely filled 

out. 

Additionally, the Department finds 

that the removal of the 30-day return 

period will better ensure that all asylum 

claims before the immigration courts for 

adjudication are fully presented for 

adjudication and review. Incorrectly 

deeming an incomplete application 

complete does not ensure that the alien 

is able to fully pursue his or her claim 

as the missing information may in fact 

be integral to the alien’s claim for relief, 

and the Department does not want to 

risk having an immigration judge 

consider an incomplete application 

without the relevant information.49 For 

this reason, the Department further 

rejects commenters’ alternative 

suggestions that the Department should 

instead shorten the 30-day time period 

as an alternative way to increase 

efficiencies. 

In general, commenters failed to 

explain why the default in the existing 

regulation—i.e., an immigration court 

accepts an incomplete application— 

based on a legal fiction that an 

incomplete application is deemed 

complete if the immigration court fails 

to return the application as incomplete 

provides any benefit to the alien, DHS, 

or the immigration courts. To the 

contrary, an application that is 

incomplete in fact—regardless of 

whether it is ‘‘deemed’’ complete by 

regulation—benefits neither the parties 

nor the immigration judge. It risks 

creating credibility issues for the 

respondent based on the parts that are 

incomplete even if those parts do not go 

to the merits of the claim. INA 

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

1158(b)(1)(B)(iii) (inconsistencies may 

form the basis of an adverse credibility 

determination without regard as to 

whether they go to the heart of an 

alien’s claim). It inhibits the ability of 

the opposing party—and potentially the 

immigration judge—to prepare for a 

hearing on that application and risks 

springing surprises on the opposing 

party at the hearing that may require a 

postponement to investigate further. It 

further increases inefficiency in the 

overall proceeding, particularly at the 

merits hearing where the parties and the 

immigration judge may have to go over 

each incomplete part first to determine 

its bearing on the case before being able 

to proceed to the merits of the case. In 

short, commenters did not identify any 

reasonable benefit provided by filing 

and accepting an incomplete 

application and the Department is 

unaware of any; moreover, the costs 

associated with such an application in 

terms of the risk of an adverse 

credibility finding, unfair surprise to the 

opposing party, and overall inefficiency 

in adjudicating the case all strongly 

militate in favor of the Department’s 

decision to replace the current 

regulatory language with that contained 

in this rule. 

In addition, commenters are incorrect 

regarding the effect this provision 

would have on the calculation of aliens’ 

possible eligibility for employment 

authorization.50 To reiterate, existing 

regulations already provide that the 

filing of an incomplete application does 

not begin the timeframe by which DHS 

adjudicates an application for 

employment authorization based on an 

asylum application, and nothing in this 

rule alters that longstanding principle. 

Accordingly, the Department disagrees 

that an alien who submits a Form I–589 

that is incomplete would begin to 

accrue time towards his or her 

employment authorization eligibility. In 

short, aliens seeking employment 

authorization have an incentive to 

submit a complete asylum application 

as soon as possible, and nothing in this 

rule either affects that incentive or 

changes the Department’s position that 

the submission of an incomplete 

application does not begin the 

timeframe to adjudicate an employment 

authorization application. 

Commenters are incorrect that EOIR 

will be unable to return incomplete 

asylum applications in a timely manner 

following the removal of the 30-day 

period. To the contrary, as discussed 

throughout this rule, EOIR has a 

powerful incentive to ensure that 

proceedings are conducted in as 

expeditious manner as possible 

consistent with due process. The rule’s 

‘‘timely fashion’’ requirement obligates 

immigration courts to act promptly in 

returning incomplete asylum 

applications, and the insulting 

suggestion that EOIR’s employees lack 

the competence or diligence to 

effectuate that requirement is 


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unsupported. Immigration court staff 

receive training on how to process 

filings, and defective filings are already 

subject to review and return, as 

appropriate. 

Finally, the Department believes that 

commenters are incorrect in asserting 

that the rule is unfair because asylum 

seekers are being held to time 

restrictions, while immigration courts 

are not. As discussed, supra, the 

Department has powerful incentives to 

promptly return incomplete asylum 

applications to ensure efficiency, 

especially as the number of asylum 

applications file has risen 

astronomically in recent years. EOIR, 

Workload and Adjudication Statistics, 

Total Asylum Applications (Oct. 13, 

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

page/file/1106366/download. Moreover, 

the Department is held to a 180-day 

adjudication deadline for asylum 

applications absent exceptional 

circumstances, INA 208(d)(5)(A)(iii), 8 

U.S.C. 1158(d)(5)(A)(iii), and that 

deadline is only triggered once an alien 

files a complete asylum application. 

Thus, there is no asymmetry between 

asylum seekers and the immigration 

courts; rather, both are held to 

intertwined and mutually-reinforcing 

deadlines regarding asylum 

applications. 

iii. 30-Day Correction Deadline 

Comment: Commenters expressed 

concern about the rule’s requirement 

that aliens only be allowed a 30-day 

period to re-file an application that is 

rejected for being incomplete. 

According to commenters, the 

imposition of a 30-day time period is 

arbitrary and too limited for aliens to 

correct any errors with the application 

or gather missing evidence. Commenters 

asserted that by establishing such a 

timeframe, the Department is 

inappropriately prioritizing efficiency 

over all other concerns. 

Some commenters requested that the 

deadline, if any, be extended to 45 days 

rather than 30 days. 

Commenters also worried the 30-day 

correction deadline will lead to 

unnecessary and inadvertent waivers of 

aliens’ right to seek asylum. For 

example, some commenters stated that a 

failure by a mail carrier could result in 

the foreclosing of relief. Other 

commenters expressed general disbelief 

that the government will timely return 

or alert aliens of deficient applications. 

Some commenters asserted that the 

rule was both redundant and unduly 

restrictive because immigration judges 

already possess the authority to set and 

extend filing deadlines without 

requiring the alien to demonstrate the 

high exceptional circumstances 

standard. Commenters also claimed that 

applicants would not understand the 

rejection from the court nor how to 

remedy it. 

Commenters also argued that the 

Department’s assertion that a 30-day 

period is sufficient for remediation of 

application defects because of EAD 

incentives is incorrect. Commenters 

disagreed with the Department 

regarding this alleged incentive due to 

the combined effect of DHS’s recent 

regulatory changes extending the 

minimum timeline for obtaining EAD 

eligibility and the Department’s 

clarification in this rule regarding the 

180-day timeline for the adjudication of 

asylum applications. 

Response: As an initial point, 

commenters provided no evidence that 

asylum applications are routinely filed 

in such a grossly incomplete manner 

with errors so great that they cannot be 

corrected within one month, and the 

Department is unaware of any systemic 

trend of asylum applications being filed 

in such a manner. Accordingly, the 

Department declines to address further 

commenters’ hyperbolic and unfounded 

assertions regarding the scale of 

deficiencies in initial asylum 

applications. 

The Department rejects commenters’ 

assertions that that 30-day deadline to 

re-file an application is too short, 

arbitrary, or prioritizes efficiency above 

all other concerns. The Department 

believes that 30 days is a reasonable 

time period that balances both the time 

necessary for a respondent to amend 

and return a complete application and 

the needs of the immigration court to 

operate efficiently. The Department 

notes that affected applicants must 

necessarily have already attempted to 

file an application, so any additional 

changes should be few in number and 

limited only to those fields that were 

incomplete. Applicants in general must 

meet their obligation to file an 

application that is full and complete as 

part of the applicant’s burden of proof 

for relief as an initial matter and should 

not be relying on this additional 30-day 

time period to make significant changes 

to their applications. The Department 

also notes that this 30-day timeline only 

applies to the Form I–589 itself and 

does not prevent applicants from filing 

additional supporting documentation 

after the deadline, provided such filings 

comply with any deadlines set by the 

immigration court. 

Further, the 30-day timeline is fully 

consistent with existing regulatory 

provisions requiring the refiling of 

incomplete asylum applications ‘‘within 

a reasonable period’’ after return in 

order to demonstrate extraordinary 

circumstances and avoid the application 

of the one-year bar. 8 CFR 

1208.4(a)(5)(v). Moreover, 30-day filing 

deadlines are already well-established 

in immigration proceedings—e.g., a 

motion to reconsider, 8 CFR 

1003.23(a)(1); an appeal to the Board, 8 

CFR 1003.38(b)—and the resubmission 

of an asylum application is roughly 

analogous to these other procedures 

because it requires the correction of an 

initial determination. Accordingly, the 

Department finds that 30 days is an 

appropriate amount of time to correct an 

incomplete asylum application and 

disagrees that an additional 15 days 

would result in any meaningful benefit, 

especially when aliens already have a 

strong incentive to file quickly in order 

to begin the process of attaining 

eligibility for work authorization and 

ultimately obtain relief or protection. 

The Department rejects commenters’ 

assertions that the rule is both 

redundant and unduly restrictive 

because immigration judges already 

possess the authority to set filing 

deadlines and are able to extend these 

deadlines without establishing 

exceptional circumstances. See 8 CFR 

1003.31(c). When an immigration judge 

sets a filing deadline under 8 CFR 

1003.31, he or she is setting a deadline 

for the initial filing of applications and 

supporting evidence. If an applicant 

fails to comply with the deadline, the 

opportunity to file such applications or 

evidence is deemed waived. Id. In 

contrast, this 30-day deadline focuses 

on applicants who have already 

attempted to file their application and 

must merely fix an incomplete 

application. This re-filing deadline 

ensures that applications are ready for 

adjudication in a reasonable time period 

and serves to increase the uniformity, 

fairness, and efficiency of the 

adjudication process. In addition, the 

Department believes that the 

‘‘exceptional circumstances’’ exception 

is appropriate in this context because 

the 30-day deadline commences only 

after the initial filing period. 

Additionally, as discussed, supra, the 

Department notes that commenters’ 

concerns that general delays, including 

mail carrier mistakes, could prevent 

applicants from submitting the Form I– 

589 within the deadline are true for 

every deadline—including other 

important 30-day deadlines such as for 

filing appeals to the Board, 8 CFR 

1003.38(b)—and that risk is not altered 

by the rule. Again, the Department 

recognizes that no rule can cover every 

hypothetical scenario, and the existence 

of speculative assertions does not 

warrant the removal of deadline 


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51 DHS recently established a $50 fee for Form I– 

589 submitted for the purposes of applying for 

asylum in most circumstances. See 85 FR at 46791. 

This fee would have entered into effect on October 

2, 2020, but, as noted supra, it is currently enjoined 

as a result of litigation. Immigrant Legal Res. Ctr. 

v. Wolf, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020) 

(granting nationwide preliminary injunction barring 

DHS from implementing or enforcing any part of 

the rule). 

52For example, some commenters were 

specifically concerned with the impact that the 

Department’s pending fee rule would have on this 

provision. See Executive Office for Immigration 

Review Fee Review, 85 FR 11866 (Feb. 28, 2020). 

requirements, particularly when other 

similar deadlines have existed for years 

without the ‘‘parade of horribles’’ 

posited by commenters occurring. The 

Department believes—and commenters 

have not meaningfully or persuasively 

disputed—that 30 days is a reasonable 

time period for applicants to correct 

minor mistakes and re-file the 

application. 

As to commenters’ concerns regarding 

applicants’ understanding of a rejection, 

the Department notes that the rule does 

not change the rejection process. EOIR 

will continue to follow current practice 

in rejecting documents, which includes 

returning the filing with an explanation 

for the rejection. See Immigration Court 

Practice Manual, Ch. 3.1(d)(i), https://

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

download (last revised July 2, 2020) (‘‘If 

an application, motion, brief, exhibit, or 

other submission is not properly filed, 

it is rejected by the Immigration Court 

with an explanation for the rejection.’’). 

Commenters have not expressed 

confusion with the existing process, and 

it is well-established. As such, the 

Department finds changes to these 

existing processes unnecessary. 

Finally, the Department disagrees 

with commenters and reiterates the 

discussion in the proposed rule that 

aliens who seek to file asylum 

applications are motivated to do so 

promptly in part because of the 

possibility of obtaining employment 

authorization. See 85 FR at 59624. 

While employment authorization 

eligibility is adjudicated solely by DHS, 

the Department finds that the possibility 

of employment authorization is 

generally a desirable benefit for asylum 

seekers, and it is illogical that the 

possibility of obtaining such a benefit 

would not be a motivating factor to 

promptly file a complete asylum 

application. 

The Department disagrees that DHS’s 

extension of the waiting period to be 

eligible to apply for asylum-based 

employment authorization from 150 

days to 365 days would negatively affect 

this incentive, though it notes that 

DHS’s extension has been temporarily 

enjoined with respect to the individual 

members of the Plaintiff organizations, 

CASA de Maryland, Inc. (‘‘CASA’’) and 

Asylum Seeker Advocacy Project 

(‘‘ASAP’’). See Casa de Md. v. Wolf,— 

F.Supp.3d—, 2020 WL 5500165 (D. Md. 

Sept. 11, 2020) (preliminarily enjoining, 

inter alia, DHS’s increase to the waiting 

period for employment authorization 

eligibility for individual members of 

Plaintiffs CASA and ASAP). Rather, the 

Department finds that the longer period 

would only further increase the 

incentive for aliens to start their accrual 

period for employment authorization as 

quickly as possible. 

The Department acknowledges 

comments that the 180-day asylum 

adjudication period in INA 

208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii), which this rule 

incorporates as discussed, infra, 

counter-balances the 180-day statutory 

period before which an alien who has 

filed an asylum application can apply 

for employment authorization under 

INA 208(d)(2), 8 U.S.C. 1158(d)(2), but 

notes that counter-balanced system was 

established by Congress. Thus, to the 

extent that commenters disagree with 

the interplay of those statutory sections, 

their comments are beyond the 

Department’s authority in this 

rulemaking and are more appropriately 

addressed to Congress. The Department 

disagrees that this system reduces an 

alien’s incentive to file promptly for the 

purposes of earning time towards 

employment authorization. Many 

asylum applications are not currently 

adjudicated within 180 days due to 

operational constraints and the size of 

the pending caseload, and the presence 

of exceptional circumstances causes 

adjudicatory delays beyond the 180-day 

mark for other cases. Moreover, 

litigation has effectively forced DHS to 

adjudicate employment authorization 

applications within 30 days after an 

alien files such an application once the 

alien’s asylum application has been 

pending for the applicable period of 

time, Gonzalez Rosario v. USCIS, 365 

F.Supp.3d 1156, 1163 (W.D. Wash. 

2018), and DHS’s efforts to change its 

regulations to adjust the time periods for 

adjudicating such applications have also 

been enjoined, Casa de Md. v. Wolf,— 

F.Supp.3d—, 2020 WL 5500165 (D. Md. 

Sept. 11, 2020). Consequently, aliens 

retain very strong incentives to file 

complete asylum applications as soon as 

possible, and nothing about this rule or 

the relevant statutory framework 

reduces those incentives, particularly in 

light of the persistent litigation on this 

issue. 

c. Submission of Form I–589 Fee 

Comment: Many commenters broadly 

criticized the existence or requirement 

of a fee for asylum applications, 

regardless of the dollar amount of the 

fee. In addition, commenters objected to 

the rule’s requirement that aliens must 

submit a required filing fee in 

connection with an asylum application 

at the time of filing. Commenters stated 

that the Department failed to provide 

any reasoning to justify the imposition 

of a fee or to consider the negative 

impact of the fee. At least one 

commenter argued that the Department 

must separately justify the inclusion of 

a fee for the submission of a Form I–589 

and cannot just rely on DHS’s 

determinations without independent 

analysis or justification. 

The majority of commenters who 

discussed the fee for asylum 

applications raised concerns that 

asylum applicants would not be able to 

afford a $50 filing fee and that their 

applications would be rejected as a 

result.51 Accordingly, commenters 

stated that the rule violates the United 

States’ non-refoulement obligations. 

Commenters provided a wide range of 

reasons for why asylum seekers would 

not be able to afford the $50 fee, 

including asserting that asylum seekers 

do not have the funds to pay such a fee 

given that those seeking asylum are 

often fleeing conflict and arriving to the 

United States lacking any resources. 

Moreover, commenters stated that many 

asylum seekers are already severely 

impoverished, a condition which 

commenters claim has only been 

exacerbated by COVID–19. Several 

commenters were especially concerned 

that asylum seekers who are either 

detained or subject to the Migrant 

Protection Protocols (‘‘MPP’’) would be 

unable to pursue asylum applications 

due to an inability to afford the fee. 

Commenters explained that detained 

asylum seekers are only able to earn a 

trivial amount of income in detention 

facilities and noted that many are 

currently quarantined, and unable to 

work at all, during their first 14 days in 

detention due to the COVID–19 

pandemic. Similarly, commenters 

explained that individuals subject to the 

MPP have limited access to funds. 

Several commenters also urged the 

Department to allow fee waivers for 

asylum seekers, particularly for 

individuals who are detained or subject 

to MPP. 

Commenters were also concerned 

with the possible impact that other 

pending EOIR rules 52 would have on 

this provision. Commenters asserted 

that because these pending rules have 

not been published as final rules yet, it 

is impossible for them to be able to fully 


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53As noted supra, the $50 asylum application fee 

established by DHS is currently enjoined as the 

result of litigation. Immigrant Legal Res. Ctr. v. 

Wolf, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020) 

(granting a nationwide preliminary injunction 

barring DHS from implementing or enforcing any 

part of the rule). Nevertheless, the response to 

commenters’ concerns in this section discusses the 

enjoined $50 fee, as discussed by commenters, 

given the possibility of its future application as 

litigation proceeds. 

54The Department also observes that most, if not 

all, aliens seeking asylum have, almost by 

definition, already demonstrated access to financial 

resources in order to travel to the United States, 

further suggesting that $50 is not an unreasonable 

amount to charge for such an application: 

While there’s no fee to apply for asylum, it’s not 

the case that there are no resources involved in the 

process. Those migrating from Europe or Asia need 

to pay for transit to the United States, as well as 

for visas allowing them onto U.S. soil. (You can’t 

apply for asylum unless you’re in the United 

States.) Those fees start at about $160. 

If you’re migrating from Central America, you 

may need to pay to ensure you make it to the border 

safely. 

The New York Times reported last year that a 

family from El Salvador paid $6,000 to smugglers 

to transport them to the U.S.-Mexico border. Part of 

the goal of the migrant caravans that have come 

north in recent months is to provide a low-cost, safe 

way for migrants to get north. 

Philip Bump, Most migration to the U.S. costs 

money. There’s a reason asylum doesn’t. Wash. Post 

(Apr. 30, 2019) (referencing a New York Times 

report about an El Salvadorean family who paid 

$6,000 to smugglers to transport them to the U.S. 

southern land border). Similarly, the Department 

also notes that 85 percent of pending asylum 

applicants in immigration proceedings, more than 

507,000 cases, have representation. EOIR, Workload 

and Adjudication Statistics, Current Representation 

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

page/file/1062991/download). Although some of 

those approximately 507,000 cases with 

representation may have obtained representation 

pro bono, most did not. As of September 30, 2020, 

EOIR records identified approximately 14,400 

asylum cases with pro bono representation, out of 

comment on this rule’s provisions 

regarding the requirement to pay a fee. 

Commenters further voiced concern 

about the alleged difficulties that 

unrepresented detained asylum seekers 

would face in trying to ‘‘fee in’’ a Form 

I–589 with DHS due to the possible 

methods of payment. Similarly, 

commenters stated that asylum seekers 

in Mexico would not be able to visit a 

DHS office in the United States to ‘‘fee 

in’’ a Form I–589. Commenters further 

noted that children, who do not have 

bank accounts or their own funds, 

would have unique difficulties paying a 

fee to submit the I–589. 

Response: Overall, commenters’ 

concerns related to a fee for an asylum 

application were both beyond the scope 

of the rulemaking and misguided or 

inapposite in three principal respects. 

First, few, if any, commenters 

acknowledged that the INA authorizes 

charging a fee for an asylum application, 

provided that such a fee does not exceed 

the cost of adjudicating the application. 

INA 208(d)(3), 8 U.S.C. 1158(d)(3). 

Thus, to the extent that commenters 

oppose charging a fee for an asylum 

application under any circumstance and 

believe that such a fee is unauthorized 

or unlawful, their comments are both 

beyond the scope of this rulemaking and 

are more appropriately addressed to 

Congress. 

Second, few, if any, commenters 

acknowledged that the fee for an asylum 

application is set by DHS because the 

asylum application is a DHS form. 

Longstanding EOIR regulations make 

clear that ‘‘[t]he fees for applications 

published by the Department of 

Homeland Security and used in 

immigration proceedings are governed 

by [DHS regulations].’’ 8 CFR 

1103.7(b)(4)(ii). As stated in the 

proposed rule, given this longstanding 

cross-referenced fee provision, the 

inextricable nature of the two agencies’ 

asylum processes and the benefit of not 

treating applicants differently for 

substantially similar benefits based on 

whether they file with DOJ or with DHS, 

the Department did not propose to alter 

that provision. See 85 FR 59698. Thus, 

this rule maintains the same provision 

as proposed regarding a fee for an 

asylum application and does not impose 

a new fee for such an application. To 

the extent that commenters challenge 

the propriety of DHS assessing a fee 

under INA 208(d)(3), 8 U.S.C. 1158(d)(3) 

for an asylum application, their 

concerns are more appropriately 

addressed to DHS. Third, and relatedly, 

this rule does not alter the longstanding 

procedures regarding how DHS forms 

are treated in immigration court. 8 CFR 

1103.7(b)(4)(ii). Rather, this rule merely 

adds instructions regarding the 

submission of the Form I–589 fee, if 

any, to a provision of EOIR’s regulations 

that is topically specific to the 

conditions and requirements for filing 

an asylum application. Although 

language already exists elsewhere in 

EOIR’s regulations, see, e.g., 8 CFR 

1103.7(a)(3) (‘‘The Department of 

Homeland Security shall return to the 

payer, at the time of payment, a receipt 

for any fee paid, and shall also return to 

the payer any documents, submitted 

with the fee, relating to any immigration 

proceeding. The fee receipt and the 

application or motion shall then be 

submitted to the Executive Office for 

Immigration Review.’’), this amendment 

is meant as an aid to the public should 

a fee be enforced at a future date. Thus, 

to the extent that commenters challenge 

the appropriateness of the prior 

promulgation of 8 CFR 1103.7(b)(4)(ii), 

those concerns are also well beyond the 

scope of this rulemaking. 

To reiterate, as a general matter, 

commenters’ broad concerns regarding 

the appropriateness of requiring a fee for 

asylum applications, the specific 

amount of the fee, and whether to allow 

for a fee waiver for the Form I–589 are 

outside the scope of this rule.53 DHS 

determines the fee amounts for DHSmaintained forms such as the Form I– 

589, and the Department did not change 

this longstanding practice in this rule. 

See, e.g., 8 CFR 1103.7(b)(4)(ii) (‘‘The 

fees for applications published by the 

Department of Homeland Security and 

used in immigration proceedings are 

governed by 8 CFR 103.7.’’) and 

1103.7(c) (‘‘No waiver may be granted 

with respect to the fee prescribed for a 

Department of Homeland Security form 

or action that is identified as nonwaivable in regulations of the 

Department of Homeland Security.’’). 

Overall the imposition of a nonwaivable $50 fee for the Form I–589 for 

the purposes of asylum is a decision 

made by DHS following publication of 

a proposed rule and the consideration of 

the public comments received thereon. 

See 84 FR 62280 (proposed rule), 85 FR 

46788 (final rule). This rule does not 

amend the well-established regulatory 

provisions distinguishing between fees 

for DHS forms and fees for EOIR forms, 

and fees for DHS forms adjudicated by 

EOIR, including the Form I–589, 

continue to be set by DHS. Rather, this 

rule merely clarifies when the Form I– 

589 fee, as determined by DHS, must be 

paid in the course of EOIR 

adjudications. 

Nevertheless, even though these 

concerns are outside the scope of this 

rulemaking, the Department disagrees 

with commenters’ concerns that a $50 

filing fee is inappropriate or would be 

unaffordable, thus discouraging or 

preventing individuals from filing 

meritorious asylum claims. Cf. Ayuda, 

Inc. v. Att’y Gen., 661 F. Supp. 33, 35 

(D.D.C. 1987) (rejecting concern that 

increased fees would limit access to 

courts), aff’d sub nom. Ayuda, Inc. v. 

Att’y Gen., 848 F.2d 1297 (D.C. Cir. 

1988). The Department has no 

evidence—and commenters did not 

provide any—to dispute DHS’s 

assessment that a $50 fee ‘‘could be paid 

in one payment, would not require an 

alien an unreasonable amount of time to 

save, would generate some revenue to 

offset costs, discourage frivolous filings, 

and not be so high as to be unaffordable 

to even an indigent alien.’’ 84 FR at 

62320. Almost by definition, aliens 

seeking asylum have demonstrated 

access to financial resources by the very 

nature of their ability to travel to the 

United States, further suggesting that 

$50 is not an unreasonable amount to 

charge for an asylum application.54 For 


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over 507,000 asylum cases with representation 

overall. The ability of most aliens applying for 

asylum to retain representation at cost further 

suggests that a $50 fee is not unreasonable. 

55As mentioned in note 18, supra, DHS has 

determined to exempt UAC in removal proceedings 

from the $50 fee. 

56The Department further notes that USCIS 

accepts electronic payments in certain contexts, and 

the Department expects that the availability of 

electronic payment methods will continue to 

expand over time. USCIS, Forms Available to File 

Online (June 11, 2020), https://www.uscis.gov/fileonline/forms-available-to-file-online. 

57The Department notes that many of the 

concerns commenters raised with respect to the 

effect that this rule would have on discrete 

populations are similar to concerns that 

commenters also raised with respect to asylum 

applicants, generally. To the extent there is overlap, 

the Department reiterates the discussion above in 

section II.C.2. 

similar reasons, the Department sees no 

reason for DHS not to assess a $50 fee 

for asylum applications filed by 

categories of aliens cited by 

commenters: Aliens in detention, aliens 

in removal proceedings who were 

returned to Mexico pursuant to the 

MPP, and children.55 The Department 

also notes that unverified generalized 

statements and anecdotal reports about 

asylum seekers’ financial status do not 

provide information about actual 

hardship, particularly when they do not 

also address or account for how the 

alien obtained financial resources to 

make the journey to the United States in 

the first instance. 

The Department further notes that an 

application for statutory withholding of 

removal under section 241 of the Act, 8 

U.S.C. 1231, or protection under the 

regulations implementing the CAT does 

not require a fee. See 8 CFR 106.2(a)(20) 

(establishing a $50 fee when the Form 

I–589 is submitted ‘‘[f]or filing an 

application for asylum status’’). 

Accordingly, commenters are incorrect 

that the rule violates the United States’ 

non-refoulement obligations set forth in 

the 1951 Refugee Convention, the 1967 

Protocol, and the CAT. 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, 856 F.3d at 257 & n.16; RamirezMejia, 813 F.3d at 241; Maldonado, 786 

F.3d at 1162 (explaining that Article 3 

of the CAT, which sets out the nonrefoulement obligations of signatories, 

was implemented in the United States 

by FARRA (Pub. L. 105–277, sec. 

2242(b), 112 Stat. 2681, 2631–822) and 

its implementing regulations); see also 

Cardoza-Fonseca, 480 U.S. at 429, 441 

(‘‘[Withholding of removal] corresponds 

to Article 33.1 of the Convention. . . . 

[Asylum] by contrast, is a discretionary 

mechanism which gives the Attorney 

General the authority to grant the 

broader relief of asylum to refugees. As 

such, it does not correspond to Article 

33 of the Convention, but instead 

corresponds to Article 34.’’) (emphasis 

in original). 

Regarding commenters concerns that 

the Department must separately justify 

the establishment of an asylum 

application fee, the Department 

reiterates that it is not altering its 

longstanding treatment of fees related to 

DHS applications. 8 CFR 

1103.7(b)(4)(ii). DHS has assessed a fee 

for most asylum applications, and 

concerns about the justifications for that 

fee are beyond the scope of this 

rulemaking. 

Regarding commenters’ concerns 

about the interplay between this rule 

and other rules proposed by the 

Department, none of the Department’s 

pending rules would impact this 

provision. As noted in other rules, and 

as discussed above, DHS determines 

whether or not to impose filing fees for 

asylum applications. None of the 

Department’s pending rules, including 

its fee review, propose to change this 

regulatory scheme. As such, 

commenters’ concerns over not being 

able to fully comment on this provision 

without seeing certain pending rules 

published as final rules are 

unpersuasive. 

In addition, regarding commenters’ 

concerns about the ability of aliens to 

pay the $50 fee given USCIS’s available 

methods of payment and commenters’ 

concerns regarding the supposed 

difficulties that detained unrepresented 

asylum seekers and aliens subject to 

MPP will face in paying the fee, 

although such concerns are far beyond 

the scope of this rulemaking and more 

appropriately addressed to DHS, the 

Department does note that aliens who 

submit payments to DHS for forms, 

applications, or motions for EOIR 

adjudications may submit a wide range 

of payment methods to USCIS, 

including personal check, cashier’s 

check, certified bank check, bank 

international money order, or foreign 

draft drawn on a financial institution in 

the United States and payable to the 

‘‘Department of Homeland Security’’ in 

United States currency. In addition, 

aliens may have a third party provide 

the payment on their behalf. 

Nevertheless, as with the determination 

of whether to charge a fee for the Form 

I–589, the available methods of payment 

are determined by USCIS as the 

payment processing entity for the 

immigration courts. See 8 CFR 

103.7(a)(1), 1103.7(a)(3).56

d. Impact on Discrete Populations 57

Comment: Commenters raised a broad 

range of concerns with respect to the 

rule’s impact on various populations 

that commenters have identified as 

uniquely vulnerable groups, including, 

inter alia, alleged victims of genderbased persecution, detained individuals, 

familyasylum applicants, indigenous 

language speakers or non-English 

speakers, children, teenagers in custody, 

individuals with disabilities, LGBTQ 

individuals, and individuals with 

mental-competency issues. Commenters 

were primarily concerned with the 

ability of these categories of aliens to 

meet the 15-day filing deadline or 30- 

day re-filing correction deadlines. 

Commenters expressed concerns that 

members of such groups need more time 

than other applicants to prepare, 

submit, and present their cases in 

support of their applications for a 

variety of reasons. For example, 

commenters stated that due to severe 

trauma or post-traumatic stress, some of 

these populations might need additional 

time and the assistance of medical and 

mental health services to articulate their 

claims. Additionally, commenters 

stated, certain populations might face 

unique difficulties obtaining 

corroborative evidence to support their 

claims; for example, commenters stated 

that victims of gender-based violence 

may have been prevented by their 

traffickers or perpetrators from owning 

items that might serve as evidence. 

Commenters also asserted that some 

populations, such as children, might 

need additional time to familiarize 

themselves with processes and become 

comfortable with their advocates. 

Commenters asserted that some 

groups faced other unique challenges in 

preparing, submitting, and presenting 

their applications that may require 

additional time. For example, applicants 

submitting family-based claims might 

need child care during proceedings 

because they may not want to speak 

about the harm they have suffered in 

front of their children. Additionally, 

commenters stated, indigenous-language 

speakers may be unable to find an 

interpreter to translate the Form I–589 

or documents for submission within the 

regulatory deadlines. Commenters 

anecdotally asserted that some 

indigenous-language speakers did not 

receive credible fear interviews before 


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58For example, commenters’ concerns about 

mental illness, trauma, and developmental 

challenges may certainly fall within the rule’s goodcause exception for the filing deadline or within the 

exceptional circumstances exception to the 

statutory 180-day adjudication deadline in 

particular cases if those concerns are credible. 

However, the Department cannot make a blanket 

determination based solely on generalizations 

without context that such situations will always 

constitute exceptions because each case is 

considered on its own merits. Moreover, the 

credibility of such assertions will always be at issue 

because they provide an exception to the general 

rule, and it is difficult, if not impossible, for the 

Department to make generalized credibility 

determinations in a rulemaking. 

being placed into proceedings because 

the government was unable to find an 

interpreter within the requisite period of 

time. 

Commenters also asserted that some 

applicants, such as children or those 

with mental competency issues, need or 

require counsel to assist with 

preparation, submission, and 

presentation of their claims. For 

example, commenters explained that the 

deadline would present challenges for 

counsel working with children because 

their age, development, dependence on 

adults, particular vulnerabilities, and 

experienced traumas (if any) typically 

increase the time necessary to develop 

and corroborate their asylum claims. 

Further, commenters explained that 

children in government custody would 

have a particularly difficult time 

discussing the persecution they faced. 

Accordingly, commenters stated that 

immigration judges should have 

discretion to set and extend deadlines 

pursuant to children’s specific and 

unique needs. 

Additionally, commenters asserted 

that recent changes to the law, such as 

Matter of A–B–, 27 I&N Dec. 316 (A.G. 

2018), have rendered certain claims 

uniquely complex. Some commenters 

asserted that Congress had recognized a 

specific obligation to treat children 

humanely and fairly, and EOIR had 

recognized that cases involving children 

could be uniquely complex. 

Commenters asserted that some 

uniquely situated applicants, such as 

detained individuals and children, 

already face logistical barriers to access 

to counsel and legal information. 

Accordingly, commenters asserted, such 

applicants may be especially 

disadvantaged by the rule to the extent 

that it would limit or further exacerbate 

their already limited access to counsel. 

Furthermore, with respect to 

individuals with mental competency 

issues, some commenters expressed 

concerns that issues of incompetence 

might not be identified until an 

individual had made several court 

appearances. One organization 

anecdotally stated that it had accepted 

National Qualified Representative 

Program (NQRP) cases, see EOIR, 

National Qualified Representative 

Program (Feb. 18, 2020) (hereinafter 

‘‘EOIR, NQRP’’), available at https://

www.justice.gov/eoir/national-qualifiedrepresentative-program-nqrp, in which 

detained clients had appeared in court 

for months before anyone raised the 

issue of incompetence. Commenters also 

generally asserted that the 15-day 

deadline for submitting applications 

might would proceed in violation of 

their rights such rights would be 

violated. Lastly, commenters alleged 

that the rule would violate the 

Rehabilitation Act of 1973. See 29 

U.S.C. 794(a). 

Response: The Department reiterates 

its response to similar comments, supra, 

and adds the following further response. 

In general, commenters on this point 

misapprehended the rule; provided 

speculative hypothetical generalizations 

that do not account for the case-by-case, 

individualized decision-making 

associated with adjudicating asylum 

applications; and made assertions 

rooted in the rule’s failure to align with 

the commenters’ policy preferences, 

rather than the identification of specific 

legal deficiencies or other factors the 

Department should consider. See Home 

Box Office, 567 F.2d at 35 n.58 (‘‘In 

determining what points are significant, 

the ‘arbitrary and capricious’ standard 

of review must be kept in mind. Thus 

only comments which, if true, raise 

points relevant to the agency’s decision 

and which, if adopted, would require a 

change in an agency’s proposed rule 

cast doubt on the reasonableness of a 

position taken by the agency. Moreover, 

comments which themselves are purely 

speculative and do not disclose the 

factual or policy basis on which they 

rest require no response. There must be 

some basis for thinking a position taken 

in opposition to the agency is true.’’). 

Asylum seekers come from a wide 

range of backgrounds and personal 

circumstances, and the Department 

recognizes that no rule can account for 

the backgrounds and circumstances of 

the hundreds of thousands of aliens 

who seek asylum. Nevertheless, the 

Department disagrees that the sorts of 

speculative challenges raised by the 

commenters are sufficient to outweigh 

the benefits obtained from this rule’s 

implementation, including benefits that 

would inure to those with meritorious 

asylum claims. Further, in a vacuum, 

the Department has difficulty 

responding to commenters’ generalized 

statements about various populations, 

trauma experienced by those 

populations, and other asserted 

difficulties because asylum applications 

are adjudicated based on their specific 

facts, not on generalized speculative 

assertions.58 The Department believes 

that the timelines set are generally 

appropriate for the majority of cases for 

the reasons discussed above, and that 

determinations about extending such 

deadlines are more appropriately made 

on a case-by-case basis rather than 

providing a categorical exception for 

certain types of applicants, as 

commenters suggest. 

Neither the 15-day filing deadline nor 

the 30-day correction deadline imposes 

one-size-fits-all deadlines. In cases 

where applicants’ unique circumstances 

necessitate additional time to prepare, 

submit, or present their asylum 

applications, the Department reiterates 

that the immigration judge is authorized 

to consider extending these timelines on 

a case-by-case basis. See 8 CFR 

1208.3(c)(3) (stating that failure to 

correct deficiencies within 30 days will 

result in abandonment of an application 

and waiver of the opportunity to file 

such application ‘‘absent exceptional 

circumstances as defined in 

§ 1003.10(b)’’); 8 CFR 1208.4(d) (stating, 

with respect to the 15-day filing 

deadline, that ‘‘[t]he immigration judge 

may extend the deadline for good 

cause.’’). In general, determining 

whether ‘‘good cause’’ or ‘‘exceptional 

circumstances’’ exist would likely 

include consideration of the factors that 

commenters asserted arise with respect 

to the broad types of asylum applicants 

identified by the commenters. 

In addition, the Department notes that 

an immigration judge’s discretionary 

determination with respect to whether 

an alien merits either an extension of 

the 15-day deadline or demonstrated 

exceptional circumstances to extend the 

30-day refiling deadline may be 

appealed to the Board in cases where 

the issue has been properly preserved 

for appeal. Accordingly, further review 

and protection is available for these 

classes of applicants. 

In short, the Department 

acknowledges commenters’ concerns 

about discrete groups of individuals and 

has fully considered them; however, the 

rule does not single out any discretelylabeled groups, nor does it preclude the 

groups identified by commenters from 

pursuing their claims. To the extent that 

aliens within those groups have 

meritorious claims, the rule will, in fact, 

ensure that those claims are adjudicated 

expeditiously, especially for aliens in 

detention. The rule also provides 

sufficient safeguards in situations in 

which individuals may need additional 

time, and commenters’ unfounded 


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59Although the Department acknowledges that 

nonprofit organizations and pro bono volunteers, 

like all legal representatives, may face unforeseen 

challenges confronting new rules or procedures, the 

Department is confident that such representatives 

will be able to handle such changes, just as they do 

in any other court system, and will continue to be 

able to provide assistance and resources to aliens 

in proceedings before EOIR. Moreover, as discussed 

throughout this rule, most of this rule’s provisions 

are simply codifications of longstanding principles 

that have been applicable to practitioners for years, 

including the ability of an immigration judge to 

establish and extend filing deadlines, to introduce 

evidence, and to ensure asylum applications are 

adjudicated consistent with regulatory and statutory 

authorities. 

assertions to the contrary are not 

persuasive. The rule is consistent with 

due process, aids in the protection of 

the groups identified, and provides 

benefits that far outweigh any concrete 

concerns raised by commenters. 

With respect to commenter concerns 

regarding mental competency issues, the 

Department notes that there is existing 

agency protocol for ensuring that 

proceedings involving such individuals 

are fair, including forensic competency 

evaluations and implementing 

safeguards, where appropriate. See 

Matter of M–A–M–, 25 I&N Dec. 474, 

474, 477, 480–81 (BIA 2011); EOIR, 

NQRP. The Department acknowledges, 

as commenters stated, that mental 

competency issues might arise after 

numerous hearings. However, as case 

law has always considered, mental 

competency ‘‘is not a static condition.’’ 

Matter of M–A–M–, 25 I&N Dec. at 480. 

‘‘It varies in degree. It can vary over 

time. It interferes with an individual’s 

functioning at different times in 

different ways.’’ Id. (quotation omitted). 

Thus, immigration judges must 

‘‘consider indicia of incompetency 

throughout the course of proceedings to 

determine whether an alien’s condition 

has deteriorated or, on the other hand, 

whether competency has been 

restored.’’ Id. The Department notes that 

‘‘neither party bears a formal burden of 

proof to establish the respondent’s 

mental competency or incompetency.’’ 

Matter of J–S–S–, 26 I&N Dec. 679, 681 

(BIA 2015). Thus, if an immigration 

judge observes indicia of incompetency, 

regardless of whether a party argues that 

such indicia are present, an immigration 

judge must make a competency 

determination and implement the 

appropriate safeguards, where 

necessary. Id. at 680, 681 (citing Matter 

of M–A–M–, 25 I&N Dec. at 474, 477, 

480–81). 

Although an immigration judge must 

make a competency determination when 

indicia of competency are present, this 

does not mean that an immigration 

judge should delay proceedings 

indefinitely simply because indicia 

might arise later in any particular case. 

The Department believes that the 

existing protocols, in conjunction with 

the immigration judge’s authority to 

extend filing deadlines in appropriate 

situations and the various exceptions 

provided by the rule, are sufficient to 

ensure fairness towards applicants with 

mental competency issues. Moreover, 

the Department disagrees with 

commenter concerns that this rule 

would violate the Rehabilitation Act of 

1973. See 29 U.S.C. 794(a). This rule is 

broadly applicable to all applicants, 

does not impose any particular 

requirements on applicants with 

disabilities, does not prevent applicants 

with disabilities from participating in 

immigration proceedings, and provides 

that immigration judges may extend 

regulatory timelines in appropriate 

situations. 

e. Impact on Pro Se Aliens 

Comment: Commenters were 

concerned that the filing deadlines 

would disproportionately and 

detrimentally affect pro se aliens and 

interfere with the ability of those aliens 

to seek and obtain counsel. As a result, 

commenters alleged that the Department 

was engaging in a pattern or practice of 

discrimination against a discrete and 

insular minority comprised of current 

and future pro se asylum applicants. 

The commenters alleged that the 

deadline deprived pro se asylum seekers 

equal protection under the law and 

therefore violated the Fifth 

Amendment’s equal protection 

guarantee. See U.S. Const. amend. V. 

Further, for pro se aliens, commenters 

were concerned that the rule’s deadlines 

were too short for pro se aliens to 

complete the complex application on 

their own, particularly considering 

language barriers, trauma, education 

levels, and lack of familiarity or 

understanding of complex immigration 

laws. 

Response: The Department reiterates 

its response to similar comments, supra, 

and adds the following further response. 

In general, commenters on this point 

again misapprehended the rule; 

provided speculative, hypothetical 

generalizations that do not account for 

the case-by-case and individualized 

decision-making used to adjudicate 

asylum applications; and, made 

assertions rooted in the rule’s failure to 

align with the commenters’ policy 

preferences rather than the 

identification of specific legal 

deficiencies or other factors the 

Department should consider. 

The rule does not harm pro se aliens 

and does not impact the availability of 

pro bono representation. To the 

contrary, expeditious consideration of 

the asylum applications that detained 

aliens file may increase pro bono 

representation. See, e.g., HRF Report 

supra. To the extent that commenters 

posited hypothetical scenarios about 

particular characteristics of pro se 

aliens, the Department notes that if such 

scenarios are reflected by actual 

applicants, then the immigration judge 

can consider whether any factors 

referenced by the commenters warrant 

an extension of the filing deadline. 

Given the limited available avenues 

for relief or protection; the common goal 

of providing relief or protection to 

aliens with meritorious claims as 

quickly as possible, especially those 

who are detained; and the risk of loss or 

degradation of evidence with the 

passing of time, the Department believes 

the benefits of the rule, on balance, far 

outweigh the speculative concerns 

raised by commenters. 

The Department further notes that 

nothing in the rule prohibits nonprofit 

organizations, pro bono groups, or any 

other class of representatives from 

taking an alien’s case at a later point in 

the proceedings. An alien who obtains 

counsel may also choose a 

representative at any point in the 

proceedings, including after filing an 

application. Thus, pro se aliens have 

more opportunities to obtain assistance 

that many commenters suggested. 

The Department also notes that 85% 

of aliens with pending asylum cases 

have representation. EOIR, Adjudication 

Statistics: Current Representation Rates 

(Oct. 13, 2020), available at https://

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

download. For those who do not, there 

are multiple avenues they may pursue 

to obtain representation. See EOIR, Find 

Legal Representation (Oct. 1, 2020), 

available at https://www.justice.gov/ 

eoir/find-legal-representation.59

Nevertheless, the Department has fully 

considered the possible impacts of this 

rule on the relatively small pro se 

population of aliens who seek asylum 

before EOIR. However, the rule does not 

single such aliens out for particular 

treatment under EOIR’s procedures. 

Moreover, immigration court procedures 

are generally not excused for pro se 

respondents, just as they are not 

excused generally for pro se civil 

litigants. See, e.g., McNeil v. United 

States, 508 U.S. 106, 113 (1993) (‘‘[W]e 

have never suggested that procedural 

rules in ordinary civil litigation should 

be interpreted so as to excuse mistakes 

by those who proceed without 

counsel.’’); Edwards v. INS, 59 F.3d 5, 

8–9 (2d Cir. 1995) (rejecting a pro se 

alien litigant’s arguments for being 

excused from Federal court procedural 


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60There is no evidence that the shorter filing 

deadline in 8 CFR 1208.5(b) has discriminated 

against pro se aliens in any way, and commenters 

did not allege that it had. Further, even if that 

deadline had a discriminatory impact, as 

commenters alleged the rule will, it would not— 

and the rule does not—violate the Fifth 

Amendment’s equal protection guarantee, see U.S. 

Const. amend. V., because it does not burden 

fundamental rights. See Heller v. Doe, 509 U.S. 312, 

319 (1993) (affording a strong presumption of 

validity to a classification that does not involve 

fundamental rights or proceedings along suspect 

lines). 

requirements due to his pro se status). 

Although the Department acknowledges 

the challenges faced by pro se litigants 

and recommends that all aliens obtain 

representation, nothing in the rule 

singles out pro se aliens or has the effect 

of exacerbating their situation.60

Further, there is at least a rational 

basis for the rule’s deadline. 

Establishing a deadline, as explained in 

85 FR at 59694, reduces the risk of 

delayed filing, which, in turn, reduces 

the risk of delayed grants of protection 

or relief for meritorious claims and 

reduces the risk of degradation or loss 

of evidence over time. Cf. DeSousa v. 

Reno, 190 F.3d 175, 184 (3d Cir. 1999) 

(‘‘[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.’’) (citing Francis 

v. Immigration and Naturalization 

Serv., 532 F.2d 268, 272 (2d Cir. 1976) 

(internal citations omitted). It is also 

consistent with a similar existing 

deadline in 8 CFR 1208.5(b), a 

regulatory directive in 8 CFR 1208.5(a) 

to adjudicate cases of detained aliens 

expeditiously, and the longstanding 

authority in 8 CFR 1003.31(c) of 

immigration judges to set deadlines. In 

short, the rule does not violate due 

process for pro se aliens, just as it does 

not violate due process for any category 

of aliens. 

Additionally, the Department 

disagrees that pro se aliens cannot meet 

the 15-day filing deadline or cure any 

deficiencies in their applications within 

30 days. The Form I–589 spans eight 

pages—plus an additional page for 

signatures and supplemental pages, as 

needed—and DHS estimates the time 

necessary to review the instructions and 

complete and submit the form is 12 

hours. See U.S. Citizenship and 

Immigration Services, Form I–589, 

Application for Asylum and for 

Withholding of Removal, OMB No. 

1615–0067 (Aug. 25, 2020), available at 

https://www.uscis.gov/sites/default/ 

files/document/forms/i-589.pdf; U.S. 

Citizenship and Immigration Services, 

Form I–589, Application for Asylum and 

for Withholding of Removal, 

Instructions, OMB No. 1615–0067 (Aug. 

25, 2020), available at https://

www.uscis.gov/sites/default/files//

forms/i-589instr.pdf. Instructions to 

Form I–589 are available and written to 

assist applicants with or without 

representation. See id.; see also note 26, 

supra (discussing the wide availability 

of information on applying for asylum, 

including information in multiple 

languages). 

Further, apart from seeking 

representation, many pro se aliens may 

access various resources to assist them 

in completing this form. Within the 

Department’s Office of Legal Access 

Programs, a wide variety of self-help 

materials and legal centers, workshops, 

and orientations are available to assist 

aliens if they so choose. See Executive 

Office for Immigration Review, Office of 

Legal Access Programs (Feb. 19, 2020), 

available at https://www.justice.gov/ 

eoir/office-of-legal-access-programs. 

Considering that aliens in asylum-andwithholding-only proceedings are only 

eligible for relief available through Form 

I–589, see 8 CFR 1208.2(c)(3)(i), the 

Department believes that the 15-day 

deadline is sufficient to complete the 

Form I–589 and that 30 days is 

sufficient to correct any deficiencies, 

including for a pro se alien. The 

existence of the possibility of an 

extension of those deadlines further 

provides a safety net for pro se aliens to 

ensure that their applications are 

completed in a timely and accurate 

manner. 

5. Concerns With Form I–589 

Procedures 

a. Supplementing the Record 

i. Evidence From Non-Governmental 

Sources 

Comment: Commenters raised 

concerns with the rule’s clarification on 

the evidentiary standards for the 

admission of non-governmental source 

evidence. Commenters claimed that the 

rule would create a double standard by 

treating governmental sources as 

automatically reliable while requiring 

foreign government and nongovernmental sources to meet a 

‘‘credible and probative’’ standard. 

Commenters stated that this was 

particularly problematic because United 

States governmental sources are subject 

to political pressures and often do not 

present accurate or complete depictions 

of conditions in other countries. One 

commenter claimed that this would 

violate the Refugee Act, which aimed to 

remove political or foreign policy 

influence from asylum determinations. 

Commenters were also concerned that 

the ‘‘credible and probative’’ standard 

was a new, higher standard than the 

existing probative standard for 

evidentiary submissions and that the 

term ‘‘credible’’ only exists in asylum 

law as it relates to oral testimony. 

Commenters further claimed that 

requiring a ‘‘credible and probative’’ 

standard would limit or exclude the 

evidence that an alien could submit, 

which would in turn violate an alien’s 

due process right to present evidence. 

Moreover, commenters expressed 

concern that the ‘‘credible and probative 

standard’’ could be used in conjunction 

with a separate proposed rulemaking 

which would establish that evidence 

promoting cultural stereotypes was 

inadmissible, to inappropriately exclude 

evidence that would support an 

applicant’s claim. See 85 FR at 36264. 

Specifically, commenters expressed 

concern that immigration judges would 

mischaracterize the ‘‘quality’’ of 

submitted evidence in order to bar 

admission of evidence that might 

support an applicant’s claim and, under 

the other proposed rule, refuse to 

submit evidence based on the substance. 

Commenters suggested that it would be 

inappropriate for immigration judges to 

bar the admission of evidence that 

might in substance support an 

applicant’s claim based on the ‘‘quality 

of the messenger.’’ Additionally, 

commenters stated that the standard 

would minimize the value of nongovernmental sources such as nongovernmental organization reports, 

which commenters claimed were very 

reliable, and would thereby diminish 

the credibility of such sources. 

Lastly, commenters requested the 

Department provide a definition of 

‘‘credible and probative,’’ claiming that 

the standard was unclear and could fail 

a vagueness challenge. 

Response: As an initial point, 

commenters did not generally explain 

why it would be appropriate for an 

immigration judge to consider evidence 

from non-credible source or that is not 

probative, and the Department is aware 

of no such reason. Evidence from noncredible sources of that is not probative 

provides no assistance to an adjudicator 

almost by definition, and the 

Department is unaware of any 

justification for allowing the 

consideration of such evidence. 

Similarly, commenters’ assertions that 

immigration judges would 

mischaracterize evidence rest on the 

tacit suggestion that immigration judges 

are incompetent or unethical and are 

either incapable or unwilling to adhere 


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61The Department notes that, consistent with 

common understanding and typical linguistic 

usage, an alien testifying in support of his or her 

own application is not considered a ‘‘nongovernmental source.’’ Whether an alien’s 

testimony in support of his or her own application 

is credible will continue to be assessed based on 

applicable law. See, e.g., INA 208(b)(1)(B)(iii), 8 

U.S.C. 1158(b)(1)(B)(iii) (outlining the bases for the 

credibility determination of an asylum applicant). 

to applicable law. As discussed 

elsewhere in this final rule, that 

assertion is unsupported and appears to 

stem from the personal biases or policy 

preferences of commenters, rather than 

any objective evaluation of immigration 

judges. Chem. Found., Inc., 272 U.S. at 

14–15 (‘‘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.’’). 

Moreover, such unsupported and 

tendentious assertions provide no basis 

for the Department to alter the NPRM. 

Further, this rule does not change the 

longstanding standards for the 

admission of evidence in immigration 

proceedings—whether the evidence is 

probative and its admission is 

fundamentally fair. See Matter of Y–S– 

L–C–, 26 I&N Dec. 688, 690 (BIA 2015) 

(explaining that ‘‘the test for admitting 

evidence is whether it is probative and 

its admission is fundamentally fair’’); 

Nyama v. Ashcroft, 357 F.3d 812, 816 

(8th Cir. 2004) (stating that the 

‘‘traditional rules of evidence do not 

apply to immigration proceedings’’ and 

that the ‘‘sole test for admission of 

evidence is whether the evidence is 

probative and its admission is 

fundamentally fair’’) (quoting Espinoza 

v. INS, 45 F.3d 308, 310 (9th Cir. 1995)). 

Once admitted, the immigration judge 

must then weigh the evidence to 

determine whether the burden of proof 

has been met. See, e.g., Le Bin Zhu v. 

Holder, 622 F.3d 87, 92 (1st Cir. 2010) 

(affording less evidentiary weight to an 

unauthenticated foreign local 

government notice); Song Wang v. 

Keisler, 505 F.3d 615, 622 (7th Cir. 

2007) (giving ‘‘little weight’’ to an 

unauthenticated foreign certificate). In 

weighing the evidence, the immigration 

judge may look to the credibility of the 

source. The rule simply clarifies that 

foreign government and nongovernmental 61 sources are not 

automatically presumed credible, and 

evidence from these sources is not 

presumed probative, as the prior 

regulatory language may have 

unintentionally implied. 

Contrary to commenters’ claims, this 

clarification has no effect on the ability 

of aliens to present evidence. See, e.g., 

Colmenar v. INS, 210 F.3d 967, 971 (9th 

Cir. 2000) (finding a due process 

violation when the alien was not 

provided a reasonable opportunity to 

present evidence). Instead, immigration 

judges will continue to review all 

evidence presented and determine 

admissibility and weight accordingly. 

The rule is also not intended to make 

any implicit negative judgments on the 

general credibility of foreign 

government or non-governmental 

sources and does not change the 

immigration judges’ process of weighing 

evidence in applying burdens of proof. 

See, e.g., 8 CFR 1240.8 (burdens of proof 

in removal proceedings). 

Moreover, the rule does not mean that 

evidence from governmental sources is 

always admissible, as such evidence 

must still be relevant or probative. For 

example, in an asylum case involving an 

alien from Guatemala, the State 

Department report on conditions in 

Australia would not be probative of 

conditions in Guatemala. In general, 

however, State Department reports are 

considered ‘‘highly probative evidence 

and are usually the best source of 

information on conditions in foreign 

nations.’’ Matter of H–L–H– & Z–Y–Z–, 

25 I&N Dec. 209, 213 (BIA 2010) 

(abrogated on other grounds by Hui Lin 

Huang v. Holder, 677 F.3d 130 (2d Cir. 

2012)); see also Sowe v. Mukasey, 538 

F.3d 1281, 1285 (9th Cir. 2008) (‘‘U.S. 

Department of State country reports are 

the ‘most appropriate and perhaps the 

best resource for information on 

political situations in foreign nations.’ ’’) 

(quoting Kazlauskas v. INS, 46 F.3d 902, 

906 (9th Cir. 1995)); accord 8 CFR 

1208.11 (expressly allowing 

immigration judges to seek comments 

from the State Department regarding 

asylum applications). In particular, 

State Department reports offer both a 

country-wide perspective and localized 

comparisons that are particularly 

relevant for internal relocation 

determinations, 8 CFR 

1208.13(b)(1)(i)(B), (2)(ii), and are often 

missing from reports from other sources. 

See, e.g., Department of State, Bureau of 

Conflict and Stabilization Operations, 

Northern Triangle Country Conditions: 

Ranking the Highest and Lowest Areas 

of Reported Homicides, Disappearances, 

and Extortion (May 2019), https://

www.justice.gov/eoir/page/file/1180706/ 

download (discussing rates of 

homicides, disappearances, and 

extortion at a municipality level in 

countries with high rates of asylum 

applications). 

Despite commenters’ concerns, once 

admitted as evidence, State Department 

reports warrant particular consideration 

because of their credible source: The 

‘‘collective expertise and experience of 

the Department of State, which has 

diplomatic and consular representatives 

throughout the world.’’ Matter of H–L– 

H– & Z–Y–Z–, 25 I&N Dec. at 213. The 

same logic applies to documents from 

other United States governmental 

agencies within their areas of expertise. 

Based on this assessment, the 

Department believes that immigration 

judges should continue to rely on 

United States governmental sources, if 

relevant or probative, and should 

generally consider them as evidence 

when deciding an asylum case. The 

Department notes that the rule does not 

prevent asylum applicants from 

submitting additional probative 

evidence from credible sources if they 

believe that evidence from a United 

States governmental source has not 

provided a complete account of 

conditions in a foreign country or from 

arguing why, in a particular case, an 

immigration judge should afford less 

weight to any particular evidence, 

including evidence from government 

sources. Similarly, the rule does not 

prevent the immigration judge from 

weighing such information together in 

making the judge’s final determination 

on whether the parties have met their 

burden of proof. 

The Department disagrees with 

commenters that this rule could be used 

in conjunction with an earlier proposed 

rule which, if finalized, would bar 

admission of pernicious, unfounded 

evidence that is predicated upon 

harmful stereotypes from being entered 

into the record, to improperly reject 

evidence that may support an 

applicant’s claim. 85 FR at 6282; cf. 

Matter of A–B–, 27 I&N Dec. at 336 n. 

9 (‘‘On this point, I note that conclusory 

assertions of countrywide negative 

cultural stereotypes, such as A–R–C–G– 

’s broad charge that Guatemala has a 

‘culture of machismo and family 

violence’ based on an unsourced partial 

quotation from a news article eight years 

earlier, neither contribute to an analysis 

of the particularity requirement nor 

constitute appropriate evidence to 

support such asylum determinations.’’). 

Both rules are ultimately about barring 

admission of baseless, incredible, and 

non-probative evidence, whether 

because of the source or the content of 

the evidence. To the extent that 

commenters suggest that immigration 

judges would choose to bar evidence 

that does not support a particular 

narrative, i.e., suggesting that 

immigration judges are partial to a 

particular narrative or disposition, the 

Department strongly disagrees. As 

discussed at length, infra, section 

II.C.5.a.ii, EOIR’s immigration judges are 

impartial adjudicators, and are not 


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expected to predetermine the 

admissibility of evidence based upon 

whether it supports a particular 

narrative. 

Finally, the Department does not 

believe that the credible and probative 

standards require any additional 

definitional language, as these have 

been part of the evidentiary standards 

for decades without apparent confusion. 

See, e.g., Trias-Hernandez v. INS, 528 

F.2d 366, 369–70 (9th Cir. 1975) 

(applying the probative evidence test). 

ii. Authority of the Immigration Judge 

To Supplement the Record 

Comment: Commenters expressed 

concerns that the rule would undermine 

the immigration judge’s neutrality or 

exacerbate an existing lack of neutrality. 

Specifically, commenters stated that the 

rule would improperly expand an 

immigration judge’s power and that 

allowing immigration judges to 

introduce evidence into the record 

conflicts with their role as neutral 

arbiters of the law. Other commenters 

complained that immigration judges are 

already biased, citing some immigration 

judges’ previous employment history 

with DHS, decisions from the Federal 

courts that acknowledge biased 

decisions from immigration judges, and 

records alleging EOIR misconduct. 

Commenters stated that allowing 

immigration judges to submit their own 

evidence would put them in the posture 

of a prosecutor or defense attorney 

rather than a judge. Some commenters 

suggested that immigration judges 

would work in tandem with DHS 

attorneys to deny asylum claims. 

Commenters stated that a rule that 

undermined an adjudicator’s 

impartiality would undermine aliens’ 

due process rights. Commenters 

expressed concerns that immigration 

judges would have pre-prepared country 

conditions evidence packets to submit 

during removal proceedings, which they 

alleged would be improper. 

Commenters generally stated that this 

rule would be harmful to aliens, and 

several commenters alleged that the rule 

would be particularly harmful to certain 

discrete populations or pro se aliens. 

Commenters asserted that pro se aliens 

may be less able to present evidence on 

their own behalf in support of their 

claims. Additionally, commenters stated 

that the rule does not explicitly state 

whether pro se aliens will be told that 

they have a right to object to the 

evidence. 

Commenters expressed concern that 

the rule did not provide sufficient 

guidance or protections for aliens in 

proceedings in which the immigration 

judge introduces evidence into the 

record. For example, commenters 

expressed concern that the rule did not 

specify the period of time in which 

parties must respond to evidence 

submitted by the immigration judge or 

provide guidance that parties could 

respond to such evidence. Commenters 

suggested that the rule’s language 

stating that parties should have an 

opportunity to respond or object to 

evidence was at odds with the chapter 

3.1(b) of the Immigration Court Practice 

Manual, which requires parties to 

submit evidence at least 15 days before 

a hearing. 

Commenters suggested that 

immigration judges would not fairly 

hear challenges to the evidence the 

immigration judge may have submitted. 

Some commenters speculated that 

parties, particularly pro se immigrants 

and vulnerable populations, would be 

too intimidated to raise objections to 

evidence submitted by the immigration 

judge. Other commenters expressed 

concerns that the rule failed to provide 

guidance regarding what types of 

evidence immigration judges may 

include. Further, commenters opposed 

the rule because they claimed it failed 

to specify whether parties would have 

the opportunity to submit comments or 

objections in writing to evidence 

submitted by the immigration judge. 

Commenters were concerned that 

non-English speakers would not 

understand English-language documents 

submitted by an immigration judge. 

Commenters stated that there was no 

provision allowing for a continuance for 

the parties to review and respond to the 

newly introduced evidence. 

Commenters stated that the rule 

would violate section 240(b)(1) of the 

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

provides that ‘‘[t]he immigration judge 

shall administer oaths, receive evidence, 

and interrogate, examine, and crossexamine the alien and any witnesses.’’ 

Specifically, commenters asserted that 

Congress did not intend to confer 

authority on immigration judges to 

submit evidence because the statute 

specified only that the immigration 

judge may receive evidence but was 

silent with respect to whether the 

immigration judge could submit 

evidence. Commenters further stated 

that, prior to the IIRIRA amendments, 

the Act authorized immigration judges 

to ‘‘present and receive evidence,’’ 

which commenters believed further 

demonstrated that Congress did not 

intend for immigration judges to have 

the authority to submit evidence into 

the record. Commenters similarly stated 

that the rule conflicts with the 

regulations at 8 CFR 1003.10(b) (stating 

that immigration judges may ‘‘receive 

evidence’’) and 8 CFR 1240.1(c) (stating 

that immigration judges may ‘‘receive 

and consider material and relevant 

evidence’’). 

Some commenters suggested that the 

rule was at odds with other recent 

agency rulemakings, such as 85 FR 

36264 (addressing admissibility of 

stereotype evidence) (proposed), and 85 

FR 52491 (limiting immigration judges’ 

discretion by restricting their sua sponte 

authority to reopen cases) (proposed). 

Some commenters stated that the rule 

would be ineffective at addressing 

inconsistencies and defects in 

immigration courts, such as, the 

commenters claimed, disparate patterns 

in immigration-judge decisions. 

Commenters stated that the rule would 

similarly be ineffective at achieving its 

purpose of allowing decisions to be 

made after full consideration of the 

evidence. 

Some commenters stated that the rule 

would be inefficient at reducing 

overloaded dockets because 

immigration judges would be 

responsible for searching for evidence 

and consulting with parties about such 

evidence, which the commenter opined 

would require a great deal of time and 

resources and result in more appeals to 

the Federal circuit courts. 

Commenters recommended a number 

of changes to the rule, including 

allowing immigration judges to submit 

only favorable evidence to the alien. 

Commenters suggested that such a rule 

would be similar to procedures already 

in place at other government agencies, 

such as the Social Security 

Administration and Department of 

Veterans Affairs. 

Commenters were concerned that the 

rule did not provide sufficient guidance 

regarding how immigration judges 

should consider and respond to 

objections to their admission of 

evidence on the record. 

Response: The Department reiterates 

its response to similar comments, supra, 

and adds the following further response. 

As an initial point, few, if any, 

commenters acknowledged that 

immigration judges have been tasked 

with developing the record in asylum 

cases for many years, including by 

submitting evidence on their own 

authority, with no noted concerns, 

challenges, or complaints. See 85 FR at 

59695 (collecting authorities). Indeed, 

‘‘various guidelines for asylum 

adjudicators,’’ including ones such as 

the UNHCR whose views most 

commenters otherwise supported, 

‘‘recommend the introduction of 

evidence by the adjudicator.’’ Matter of 

S–M–J–, 21 I&N Dec. at 729 (citing 

UNHCR, Handbook on Procedures and 


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62The Department further notes that complaints 

of misconduct against immigration judges have 

declined for three consecutive fiscal years, even as 

the size of the corps has grown to its largest level 

in the Department’s history. See EOIR, Adjudication 

Statistics (Oct. 23, 2019), https://www.justice.gov/

eoir/page/file/1163621/download; Immigration 

Judge (IJ) Complaints (Oct. 2020), available at 

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

download. 

63Although the Department acknowledges prior 

high-profile criticisms of immigration judge bias by 

circuit courts, see, e.g., Islam v. Gonzales, 469 F.3d 

53, 56 (2d Cir. 2006) (‘‘Unfortunately, this is not the 

first time that the courtroom conduct of IJ [Jeffrey] 

Chase has been later questioned by this Court. By 

our count, this is the seventh time that we have 

criticized IJ Chase’s conduct during hearings. Our 

recent opinion . . . described IJ Chase’s ‘apparent 

bias against [the applicant] and perhaps other 

Chinese asylum applicants,’ . . . and five summary 

orders in our Circuit have expressed similar 

concerns about IJ Chase’s remarks and demeanor 

while conducting hearings.’’) (internal citations 

omitted), and notes that commenters also cited to 

Continued 

Criteria for Determining Refugee Status 

under the 1951 Convention and the 

1967 Protocol Relating to the Status of 

Refugees paras. 203, 204, at 48 (1992)). 

Thus, the rule merely codifies a longaccepted and well-recognized practice. 

As discussed, supra, the Department 

strongly disagrees with commenters’ 

suggestions that immigration judges are 

biased or incompetent and will ignore 

applicable law or make decisions on 

factors outside of the record and the 

law. The Department is confident that 

EOIR’s immigration judge corps adheres 

to the highest levels of professionalism 

and will continue to apply their 

independent judgment and discretion, 8 

CFR 1003.10(b), when evaluating 

asylum applications. Generalized, ad 

hominem allegations of bias or 

impropriety are insufficient to 

‘‘overcome a presumption of honesty 

and integrity in those serving as 

adjudicators.’’ Withrow v. Larkin, 421 

U.S. at 47. As such, the Department 

declines to accept commenters’ broad 

and unfounded asseverations that 

immigration judges are biased against 

aliens and will utilize this rule to 

effectuate those biases. Chem. Found., 

Inc., 272 U.S. at 14–15 (‘‘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.’’). 

Relatedly, most commenters failed to 

recognize or acknowledge the inherent 

neutrality and impartiality of 

immigration judges. See Executive 

Office for Immigration Review, Ethics 

and Professionalism Guide for 

Immigration Judges, sec. V (Jan. 26, 

2011), available at https://

www.justice.gov/eoir/sibpages/

IJConduct/EthicsandProfessionalism

GuideforIJs.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.’’); see also 5 CFR 2635.101(b)(8) 

(‘‘[Federal Government] [e]mployees 

shall act impartially and not give 

preferential treatment to any private 

organization or individual.’’). Further, 

commenters failed to understand that 

evidence is designed to assist the 

factfinder—i.e., the immigration judge— 

rather than to benefit one party over 

another. In short, commenters’ 

tendentious views that immigration 

judges are routinely biased against 

aliens and that the rule will promote 

their biases is wholly unfounded in law 

and practice 62 and completely 

inapposite to the purposes served by 

evidentiary submissions in an 

immigration hearing. 

The Department disagrees with 

commenters’ concerns that this rule 

would undermine the immigration 

judge’s role as a neutral arbiter. The rule 

amends the regulations so that 

immigration judges may, in their 

discretion, consider evidence that has 

not been presented by the parties in 

order to make their determinations. 

Nothing in the rule has any bearing on 

judicial interpretations of such 

evidence. The Department fully expects, 

as mandated by regulation, that in 

complying with this rule, immigration 

judges to continue to conduct 

themselves as neutral arbiters of the 

law. See 8 CFR 1003.10(b); see also 5 

CFR 2635.101(b)(8). 

Notably, immigration judges have 

long had the authority and duty to 

manage immigration court hearings, 

including creating and controlling the 

record of proceeding, and to fully 

develop the record, while impartially 

adjudicating cases before them. 8 CFR 

1003.10(b); see also 8 CFR 1003.36 

(‘‘The Immigration Court shall create 

and control the Record of Proceeding.’’). 

It is also consistent with an immigration 

judge’s duty to develop the record. See 

85 FR at 59695 (collecting authorities). 

Commenters’ suggestions that 

immigration judges might create 

standard country conditions packets of 

evidence that they might enter into the 

record did not explain why such 

evidence would be inappropriate or 

improper. As a matter of standard 

practice, both parties already submit 

standard (and voluminous) packets of 

country conditions evidence of varying 

degrees of probative value. In cases 

where country conditions evidence is 

lacking—e.g., the most recent relevant 

State Department Country Report on 

Human Rights Practices—many 

immigration judges already provide 

copies of such evidence to both parties. 

Commenters did not explain why 

allowing immigration judges to provide 

standard country conditions reports— 

longstanding and credible sources of 

directly relevant information that 

frequently require the submitting party 

to print out hundreds of pages—would 

be improper, and the Department is 

unaware of any reason to conclude that 

it would be. Further, such a procedure, 

which, again, is already commonly 

employed by immigration judges, 

particularly pursuant to Matter of S–M– 

J–, would not undermine the 

immigration judge’s neutrality or the 

fairness of proceedings. The 

immigration judge would weigh such 

evidence, like any evidence submitted 

into the record pursuant to this rule, 

against all other evidence of record in 

issuing a final determination. Moreover, 

to the extent that commenters’ concerns 

are actually rooted in a tacit belief that 

additional probative evidence exists that 

has not been submitted by an asylum 

applicant and would call into doubt the 

validity of the applicant’s claim, the 

Department finds the suggestions that 

immigration judges should decide cases 

without as much probative evidence as 

possible or that it is preferable for 

immigration judges to decide cases with 

less probative evidence utterly 

unpersuasive. 

The Department reiterates its rejection 

of any implication that EOIR’s corps of 

immigration judges is biased. 

Immigration judges, who have been 

selected based on merit, are required to 

adjudicate cases in an ‘‘impartial 

manner,’’ 8 CFR 1003.10(b), exercise 

‘‘independent judgment and 

discretion,’’ id., and ‘‘should not be 

swayed by partisan interests or public 

clamor,’’ Executive Office for 

Immigration Review, Ethics and 

Professionalism Guide for Immigration 

Judges, sec. VIII (Jan. 26, 2011), 

available at https://www.justice.gov/

sites/default/files/eoir/legacy/2013/05/ 

23/EthicsandProfessiona

lismGuideforIJs.pdf. Regardless of 

previous experience, immigration 

judges are sworn in and governed by the 

same regulations and ethical standards 

to be neutral and impartial. Nothing in 

this rule affects those obligations, and 

commenters’ unfounded accusations of 

bias leading to due process violations 

are insufficient to ‘‘overcome a 

presumption of honesty and integrity in 

those serving as adjudicators.’’ Withrow 

v. Larkin, 421 U.S. at 47.63


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federal court cases that discuss or touch upon 

immigration judge bias, Ali v. Mukasey, 529 F.3d 

478 (2d Cir. 2008); Wang v. Att’y Gen. of U.S., 423 

F.3d 260 (3d Cir. 2005); Zuh v. Mukasey, 547 F.3d 

504 (4th Cir. 2008); Floroiu v. Gonzales, 481 F.3d 

970 (7th Cir. 2007); Tun v. Gonzales, 485 F.3d 1014 

(8th Cir. 2007), the concerns reflected by these cases 

are more than a decade old. More recent 

information reflects that complaints of misconduct 

against immigration judges have fallen for three 

consecutive fiscal years despite a significant 

increase in the size of the corps. See Executive 

Office for Immigration Review, Adjudication 

Statistics: Immigration Judge (IJ) Complaints (Oct. 

2020), available at https://www.justice.gov/eoir/

page/file/1104851/download. Nevertheless, to the 

extent that commenters remain concerned about the 

bias or other conduct of immigration judges, the 

Department notes that EOIR has developed a 

mechanism for raising such complaints specifically 

for the purpose of addressing bias by EOIR 

adjudicators. See Executive Office for Immigration 

Review, EOIR Adjudicator Complaint Process 

Summary (rev. Oct. 15, 2018), available at https:// 

www.justice.gov/eoir/page/file//download (‘‘In 

instances where concerns regarding the conduct of 

an immigration judge, board member, or 

administrative law judge (collectively, adjudicator) 

arise, EOIR is committed to ensuring that any 

allegations of judicial misconduct are investigated 

and resolved in a fair and expeditious manner.’’). 

64The NPRM declined to propose a bright line 

rule for precisely how a party may have an 

opportunity to comment on the evidence because 

the reasonableness of a party’s opportunity to 

comment will vary based on the overall context of 

the case and the nature of the evidence the 

immigration judge proposes to submit. For example, 

if the record already contains thousands of pages of 

country conditions evidence submitted by attorneys 

for both parties and the immigration judge merely 

submits the most recent State Department Country 

Report on Human Rights Practices that the parties 

simply forgot to submit, the opportunity to 

comment should not be lengthy. In contrast, if an 

immigration judge submits hundreds of pages of 

country conditions evidence in a proceeding 

involving a pro se alien who does not speak 

English, then a continuance may be warranted to 

allow the alien an opportunity to comment on the 

evidence. The Department recognizes that the 

nature of the opportunity to comment will vary 

from case to case based on the particular facts of 

each case, and it expects immigration judges to 

address such situations consistent with applicable 

laws and policies. 

The Department rejects commenters’ 

insinuations that immigration judges 

would not be impartial in entering 

evidence to the record or would only 

introduce evidence that would be 

damaging to an alien’s claim. 

Immigration judges are bound by 

regulation to ‘‘resolve the questions 

before them in a timely and impartial 

manner.’’ 8 CFR 1003.10(b) (emphasis 

added); see also 5 CFR 2635.101(b)(8) 

(‘‘[Immigration judges] shall act 

impartially and not give preferential 

treatment to any private organization or 

individual.’’). The rule permits 

immigration judges to submit probative 

evidence from credible sources into the 

record. Such evidence may benefit 

either party, depending on the larger 

context and facts of the case, but the 

purpose of the rule is not to assist either 

party. The purpose is to allow the 

adjudicator, consistent with current 

practice and case law, to develop the 

record sufficiently to make an informed 

decision regarding the merits of the 

case. Allegations regarding whether 

such procedures, which are already 

well-established, will benefit one party 

over another are both grossly 

speculative and wholly inapposite. 

Additionally, this rulemaking does not 

bar parties from submitting their own 

evidence, so long as it is admissible. It 

merely permits the immigration judge to 

submit additional evidence where 

necessary and in an exercise of 

discretion, so that the immigration judge 

may render a decision based upon a 

fully developed and probative record. 

The Department disagrees with 

commenters’ concerns that authorizing 

the immigration judge to supplement 

the record would harm pro se aliens. To 

the contrary, immigration judges already 

have a well-established obligation to 

develop the record in cases of pro se 

aliens. See Mendoza-Garcia v. Barr, 918 

F.3d 498, 504 (6th Cir. 2019) (collecting 

cases); see also Al Khouri v. Ashcroft, 

362 F.3d 461, 464–65 (8th Cir. 2004) 

(‘‘[I]t is the IJ’s duty to fully develop the 

record. Because aliens appearing pro se 

often lack the legal knowledge to 

navigate their way successfully through 

the morass of immigration law, and 

because their failure to do so 

successfully might result in their 

expulsion from this country, it is critical 

that the IJ scrupulously and 

conscientiously probe into, inquire of, 

and explore for all the relevant facts.’’) 

(citations and internal quotation marks 

omitted). Further, this rule will ensure 

pro se aliens, who may not be as aware 

as an immigration judge of available 

probative evidence from credible 

sources of country conditions, receive 

due process and full consideration of 

their claims. This provision of the rule 

is consistent with an immigration 

judge’s regulatory directive to ‘‘take any 

action consistent with their authorities 

under the Act and regulations that is 

appropriate and necessary for the 

disposition of [individual cases before 

them],’’ 8 CFR 1003.10(b); see also 85 

FR at 59695, and the immigration 

judge’s unique role to ensure full 

consideration of all relevant evidence 

and full development of the record for 

cases involving a pro se respondent, see 

Matter of S–M–J–, 21 I&N Dec. at 729 

(noting that ‘‘various guidelines for 

asylum adjudicators recommend the 

introduction of evidence by the 

adjudicator’’). 

Commenters’ concerns that, under 

this rule, parties would not have the 

opportunity to respond to evidence that 

the immigration judge submits, are 

plainly refuted by the regulatory 

language, which requires that the parties 

‘‘have had an opportunity to comment 

on or object to the evidence prior to the 

issuance of the immigration judge’s 

decision.’’ 8 CFR 1208.12(a). 

Additionally, the Department has 

previously explained that requiring the 

immigration judge to provide a copy of 

submitted evidence to both parties was 

specifically intended to ‘‘give the parties 

an opportunity to respond to or address 

the information appropriately.’’ 85 FR at 

59695.64

The Department disagrees with 

commenters’ concerns that immigration 

judges would be unable to adequately 

address objections to evidence that they 

submit. Immigration judges have been 

hired based upon their merit and 

receive ‘‘comprehensive, continuing 

training and support’’ directed at 

‘‘promot[ing] the quality and 

consistency of adjudications.’’ 8 CFR 

1003.0(b)(1)(vii). The Department 

believes that immigration judges are 

well-equipped to address any arguments 

raised with respect to evidence that they 

submit, including how to weigh that 

evidence against all other evidence of 

record and, if appropriate, 

acknowledging successful challenges to 

its admission. 

Further, parties will have the 

opportunity to object to the evidence, 

and the Department expects that if 

parties have an objection, they will 

make it contemporaneously when the 

immigration judge submits the evidence 

in order to preserve the issue for appeal. 

The Department believes that existing 

appellate procedures would mitigate 

commenter concerns, though unfounded 

as an initial matter, that immigration 

judges may be unwilling to fairly 

consider objections to evidence that 

they submitted or that parties may not 

have sufficient time to respond to such 

evidence. 

With respect to commenter concerns 

that non-English speakers may not be 

able to understand English documents 

that the immigration judge may choose 

to submit into the record, the 

Department notes that there is no 

existing requirement for immigration 

judges to translate documents submitted 

into evidence into an alien’s native 

language when developing the record. 

See Matter of S–M–J–, 21 I&N Dec. at 

727 (observing that ‘‘if background 

information is central to an alien’s 

claim, and the Immigration Judge relies 

on the country conditions in 

adjudicating the alien’s case, the source 

of the Immigration Judge’s knowledge of 

the particular country must be made 


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65The Department notes that there is no existing 

requirement that evidence submitted by DHS be 

translated into an alien’s native language or even 

that an alien’s representative translate all evidence 

submitted on the alien’s behalf into the alien’s 

native language. 

66The Department notes that the State 

Department Country Reports on Human Rights 

Practices, which are the most common evidence 

submitted by immigration judges, are available in 

multiple languages, including Spanish. See, 

Department of State, 2019 Country Reports on 

Human Rights Practices Translations, available at 

https://www.state.gov/2019-country-reports-onhuman-rights-practices-translations/ (last visited 

Nov. 20, 2020). Nothing in this rule precludes an 

immigration judge from providing a translated copy 

of the Country Report to an alien in addition to the 

English-language version. 

67See also 8 CFR 1003.10(b) (‘‘In deciding the 

individual cases before them, . . . immigration 

judges shall exercise their independent judgment 

and discretion and may take any action consistent 

with their authorities under the Act and regulations 

that is appropriate and necessary for the disposition 

of such cases.’’); 8 CFR 1003.36 (‘‘The Immigration 

Court shall create and control the Record of 

Proceeding.’’); Yang v. McElroy, 277 F.3d 158, 162 

(2d Cir. 2002) (per curiam) (‘‘[T]he IJ whose 

decision the Board reviews, unlike an Article III 

judge, is not merely the fact finder and adjudicator 

but also has an obligation to establish the record.’’); 

Richardson v. Perales, 402 U.S. 389, 410 (1971) 

(finding that an administrative law judge ‘‘acts as 

an examiner charged with developing the facts’’); 

Charles H. Koch, Jr. & Richard Murphy, 

Administrative Law and Practice § 5.25 (3d ed. 

2020) (noting that ‘‘[t]he administrative judge is 

pivotal to the fact-finding function of an evidentiary 

hearing and hence, unlike the trial judge, an 

administrative judge has a well-established 

affirmative duty to develop the record’’); Matter of 

S–M–J–, 21 I&N Dec. at 729 (noting that ‘‘various 

guidelines for asylum adjudicators recommend the 

introduction of evidence by the adjudicator’’). 

part of the record’’ but nowhere 

requiring that such information be 

submitted in the alien’s native 

language). Further, most commenters 

failed to acknowledge that all evidence 

submitted in an immigration hearing, 

regardless of who submits it, is to be 

submitted in English or with an English 

translation. 8 CFR 1003.33.65

Additionally, nothing in the statute or 

regulations requires that evidence of 

record be written or explained in the 

respondent’s native language. Cf. Singh 

v. Holder, 749 F.3d 622, 626 (7th Cir. 

2014) (‘‘[i]n the immigration context, 

personal service in English to a nonEnglish-speaker typically satisfies due 

process because it puts the alien on 

notice that further inquiry is needed, 

leaving the alien to seek help from 

someone who can overcome the 

language barrier.’’’); Ojeda-Calderon v. 

Holder, 726 F.3d 669, 675 (5th Cir. 

2013) (‘‘Due process allows notice of a 

hearing to be given solely in English to 

a non-English speaker if the notice 

would put a reasonable recipient on 

notice that further inquiry is required.’’). 

Finally, as discussed supra, and 

notwithstanding the longstanding rule 

that evidence must be submitted in 

English or with a certified translation, 

the Department also expects 

immigration judges to account for an 

alien’s native language when 

considering what opportunity to 

provide to the alien to respond to 

evidence submitted by an immigration 

judge, particularly for the small 

minority of aliens who are pro se.66

The Department disagrees with 

comments alleging that the rule is 

inconsistent with section 240(b)(1) of 

the Act, 8 U.S.C. 1229a(b)(1), which 

provides that ‘‘[i]mmigration judges 

shall administer oaths, receive evidence, 

and interrogate, examine, and crossexamine the alien and any witnesses,’’ 

and commenters did not reconcile their 

interpretation of that provision with 

case law allowing, if not also requiring, 

immigration judges to submit evidence 

in order to develop the record, see 85 FR 

at 59695 (collecting cases). As 

commenters noted, the statute does not 

explicitly direct immigration judges to 

submit evidence into the record, but it 

does not purport to represent the 

complete and exclusive scope of 

immigration judge authority with regard 

to proceedings. Further, the Department 

disagrees with commenters that the 

amendments to the statutory language 

from ‘‘present and receive evidence’’ to 

simply ‘‘receive evidence’’ indicate a 

prohibition on the ability of 

immigration judges to introduce 

evidence, given the continued duty of 

immigration judges to develop the 

record. See Constanza-Martinez v. 

Holder, 739 F.3d at 1102 (‘‘The parties 

agree it is unclear why ‘present’ was 

removed from the INA. Even so, IJs 

maintain an affirmative duty to develop 

the record.’’).67

Commenters’ concerns that the 

regulations do not allow immigration 

judges to submit evidence into the 

record need not be addressed because 

this rule, enacted through the 

appropriate APA procedures, amends 

the Department’s regulations to 

specifically authorize immigration 

judges to do so. Moreover, as discussed, 

supra, ample case law already provides 

a basis, independent of regulatory one, 

for immigration judges to submit 

evidence. And, as also discussed 

elsewhere, the Department does not 

believe that this rule would undermine 

the neutrality of immigration judges and 

accordingly rejects commenters’ 

arguments that this rule conflicts with 

the regulations requiring immigration 

judges to act with impartiality. 

The Department disagrees with 

commenter’s concerns that this 

rulemaking will overburden 

immigration judges and exacerbate 

docket-management issues. To the 

contrary, this rule empowers 

immigration judges with additional 

tools to resolve the cases before them 

based on a full and complete record. It 

does not mandate immigration judges 

introduce evidence in any case or 

otherwise require additional work if an 

immigration judge determines it is not 

needed or would be inefficient in a 

particular case. 

Commenters made a number of 

recommendations regarding changes or 

alternatives to this provision of the rule, 

including incorporating a checklist for 

immigration judges to follow to prevent 

bias in assessing country conditions 

evidence; altering the rule so that 

immigration judges do not submit 

evidence themselves but instead suggest 

to the parties the inclusion of evidence, 

such as country conditions evidence 

from the EOIR database, they would like 

to consider; or only permitting 

immigration judges to submit evidence 

that is favorable to the alien. The 

Department appreciates the 

recommendations submitted by 

commenters, but each one is 

problematic, and none is preferable to 

the rule. 

For example, the suggestion for a 

checklist is premised on the assertion 

that immigration judges may be biased, 

but as discussed previously, that 

assertion is wholly unfounded. 

Moreover, immigration judges are wellversed in assessing the admissibility 

and weight of evidence, and there is no 

indication that a checklist would aid 

them in that regard. Suggesting that the 

parties introduce particular evidence, 

rather than allowing the immigration 

judge to introduce it, would not aid pro 

se aliens who may lack the resources or 

access to print tens or hundreds of pages 

of country conditions reports. Finally, 

the suggestion that immigration judges 

only submit evidence favorable to aliens 

would be anathema to an immigration 

judge’s role as a neutral adjudicator and 

would violate both an immigration 

judge’s ethical and professional 

responsibility obligations, see Ethics 

and Professionalism Guide for 

Immigration Judges, sec. V (Jan. 26, 

2011), available at https://

www.justice.gov/eoir/sibpages/ 

IJConduct/EthicsandProfessionalism

GuideforIJs.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.’’); see also 5 CFR 2635.101(b)(8) 

(‘‘[Immigration judges] shall act 

impartially and not give preferential 

treatment to any private organization or 

individual.’’), and an immigration 


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68This provision is currently subject to a 

preliminary injunction in Casa de Maryland v. 

Wolf, No. 8:20–cv–02118–PX (D. Md. Sept. 11, 

2020), appeal docketed, No. 20–2217 (4th Cir. Nov. 

12, 2020). 

69To the extent commenters assert that the 

Department failed to previously adhere to the law 

regarding this adjudication period, the Department 

acknowledges a lack of prior diligence in 

maintaining compliance. Nevertheless, there is no 

reason to continue to ignore a clear statutory 

directive, and the Department has maintained a 

policy that seeks to comply with that directive for 

more than two years. EOIR Policy Memorandum 

19–05, Guidance Regarding the Adjudication of 

Asylum Applications Consistent with INA 

§ 208(d)(5)(A)(iii) (Nov. 19, 2018), available at 

https://www.justice.gov/eoir/page/file/1112581/ 

download. This rule will bolster that policy and 

further emphasize the importance of adhering to 

statutory directives. 

judge’s regulatory duty of impartiality, 8 

CFR 1003.10(b) (‘‘In all cases, 

immigration judges shall seek to resolve 

the questions before them in a timely 

and impartial manner’’). 

The Department also disagrees with 

commenters’ concerns that this 

provision of the rule conflicts with 

recent rules proposed—and now 

finalized—by the Department, 

specifically those (1) limiting EOIR 

adjudicators’ sua sponte authority, 85 

FR 52491 (‘‘The Board shall not sua 

sponte remand a case unless the basis 

for such a remand is solely a question 

of jurisdiction over an application or the 

proceedings.’’) (proposed)), and (2) 

barring admissibility of stereotype 

evidence, 85 FR 36264. 

Regarding stereotype evidence, the 

Department proposed to exclude the 

admission of pernicious, unfounded 

evidence that is predicated upon 

harmful stereotypes from being entered 

into the record, 85 FR at 36282; cf. 

Matter of A–B–, 27 I&N Dec. at 336 n.9, 

and finalized that proposal with some 

minor, non-substantive edits for clarity 

in response to commenters’ concerns, 

Procedures for Asylum and Withholding 

of Removal; Credible Fear and 

Reasonable Fear Review, signed by the 

Attorney General and the Acting 

Secretary of Homeland Security on 

December 2, 2020. Nothing in this rule 

would encourage immigration judges to 

submit pernicious, unfounded evidence 

that is predicated upon harmful 

stereotypes. As plainly noted in the 

regulation, evidence submitted by an 

immigration judge must be ‘‘relevant 

. . . if the source is credible and the 

evidence is probative,’’ see 8 CFR 

1208.12(a), and evidence of pernicious 

stereotypes about a country would not 

meet those criteria. 

Commenters’ concerns with respect to 

EOIR adjudicators’ sua sponte authority 

is unrelated to this rulemaking. Indeed, 

the rule focuses on the adjudication of 

asylum applications in pending cases, 

whereas sua sponte authority is used to 

reopen a case in which a decision has 

already been rendered. Nothing in the 

present rule interacts with or is 

connected to the Department’s proposal 

to limit the Attorney General’s 

delegation of sua sponte authority to 

EOIR adjudicators. 

b. Asylum Adjudication Clock 

Comment: Commenters stated that, 

despite recognizing the statutory 180- 

day asylum adjudication deadline in the 

Act, INA 208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii), it was unreasonable 

for the Department to implement this 

regulation due to the significant number 

of pending cases at EOIR. Commenters 

explained that requiring asylum 

applications to be completed within 180 

days would not allow attorneys and 

aliens sufficient time to prepare cases 

for adjudication, would require 

immigration judges to unfairly delay 

non-asylum cases on their dockets, 

would strip immigration judges of the 

ability to manage their dockets, would 

prevent asylum seekers from fully 

presenting their cases due to a lack of 

individual hearing slots, would result in 

a significant number of suddenly 

advanced hearings, would lessen the 

ability of asylum seekers to obtain 

counsel, and would cause unsuccessful 

applicants to be removed before 

pending ancillary relief with USCIS 

could be adjudicated. 

Commenters claimed that Congress’s 

use of the word ‘‘shall’’ when discussing 

the 180-day asylum adjudication 

deadline was permissive rather than 

mandatory and, therefore, EOIR should 

not issue regulations indicating a 

mandatory deadline. 

Commenters also raised concerns 

about the 180-day asylum adjudication 

deadline’s effect on child asylum 

applicants. Commenters stated that 

child applicants face unique challenges 

in presenting their claims and are 

deserving of enhanced procedural 

protections, such as an exception to the 

adjudication deadline. In addition, 

commenters questioned whether the 

180-day adjudication deadline would 

apply to USCIS’s initial adjudication of 

asylum applications filed by UAC. 

Commenters were separately 

concerned about the 180-day asylum 

adjudication deadline and its effect on 

work authorization. Commenters stated 

that the rule would prevent asylum 

seekers from obtaining work 

authorization, particularly in light of 

recent DHS regulatory changes 

increasing the minimum wait time, 

which would result in the inability of 

asylum seekers to afford 

representation.68 Commenters 

recommended that the Department 

replace 8 CFR 1208.7 with language 

clarifying EOIR’s role in the work 

authorization process rather than 

remove and reserve the section entirely, 

which would remove guidance for the 

parties and the court from the 

regulations. 

Response: The Department reiterates 

its response to similar comments, supra, 

and adds the following further response. 

To the extent that commenters disagreed 

with the general existence of a 180-day 

adjudication deadline for asylum 

applications absent exceptional 

circumstances, the Department notes 

that deadline is established by statute, 

INA 208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii), and cannot be altered 

by rulemaking. Accordingly, such 

concerns are beyond the scope of this 

rulemaking and the Department’s 

rulemaking authority and therefore 

more appropriately addressed to 

Congress. 

Specifically, as commenters 

recognize, adjudicating asylum 

applications within 180 days of filing is 

a statutory requirement set by Congress. 

See INA 208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii). Therefore, issuing 

regulations to implement this 

requirement effectuates congressional 

intent that asylum applications be 

promptly adjudicated.69 Complaints 

that the Department should not issue 

regulations implementing this deadline 

because immigration courts are 

overburdened is not a valid reason to 

simply ignore congressional mandates. 

Rather, ensuring that asylum 

applications are adjudicated within a 

180-day timeframe will help to decrease 

immigration court backlogs and ensure 

that asylum applicants are not forced to 

wait in limbo in the United States for 

extended periods of time to receive a 

determination on their applications. 

With regard to commenters’ concerns 

about the effect of the 180-day asylum 

adjudication deadline on the ability of 

asylum seekers to obtain counsel and 

prepare their case, the Department again 

notes that Congress set the 180-day 

deadline. See INA 208(d)(5)(A)(iii), 8 

U.S.C. 1158(d)(5)(A)(iii). By 

implementing this provision, Congress 

necessarily expressed their belief that 

180 days is a reasonable time period for 

asylum seekers to prepare and present 

their case once they have filed their 

application. In addition, the Department 

emphasizes that this 180-day 

adjudication period does not begin until 

the asylum application is filed and not 

from when DHS serves the alien with a 

charging document or at some other 

earlier point in the proceeding. Once the 


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asylum application is filed, applicants 

and their attorneys would have 

additional time within the 180 days to 

obtain any additional necessary 

supporting evidence and to prepare for 

any hearings on the application, which 

the Department believes is a reasonable 

time period, as reflected by the 

congressional enactment. 

The Department disagrees with 

commenters that this rule will prevent 

immigration judges from managing their 

dockets or providing sufficient hearing 

time to asylum applicants or that it will 

result in the unfair delay of non-asylum 

cases. As an initial point, immigration 

judge authority is circumscribed by both 

the Act and applicable regulations. 8 

CFR 1003.10(b) (providing that 

‘‘immigration judges . . . may take any 

action consistent with their authorities 

under the Act and regulations that is 

appropriate and necessary for the 

disposition of such cases’’) (emphasis 

added)), 1240.1(a)(1)(iv) (providing that 

immigration judges have the authority 

in removal proceedings ‘‘[t]o take any 

other action consistent with applicable 

law and regulations as may be 

appropriate’’) (emphasis added)). Thus, 

the codification of a statutory 

requirement in the Act in applicable 

regulations does not alter the preexisting limits on an immigration 

judge’s authority. Further, this rule 

makes no changes to immigration 

judges’ authority to manage their 

dockets, and commenters have not 

adequately explained how 

implementing a statutorily-required 

adjudication deadline, which 

immigration judges are already expected 

to follow as a matter of both law and 

policy would alter this authority. See 8 

CFR 1003.10(b). The Department has no 

concerns that immigration judges will 

fail to provide sufficient hearing time to 

asylum applicants as necessary to the 

adjudication of the application. See, 

e.g., INA 240(b)(1), 8 U.S.C. 1229a(b)(1) 

(providing immigration judges with 

authority to ‘‘receive evidence, and 

interrogate, examine, and cross-examine 

the alien and any witnesses’’); 8 CFR 

1240.11(c)(3) (requiring a hearing on an 

asylum application only ‘‘to resolve 

factual issues in dispute’’). 

In regard to commenters’ concerns 

that adjudicating asylum applications 

within the statutorily-mandated 

timeframe will prevent immigration 

judges from adjudicating other cases, 

the Department notes that this rule does 

not prioritize any application or case 

over another. Rather, the rule merely 

implements a statutorily-mandated 

adjudication deadline for asylum 

applications. To the extent that 

implementing this deadline may affect 

the adjudication of other cases, the 

Department believes that the timely 

adjudication of asylum applications will 

help to reduce the immigration court 

backlog, thereby allowing immigration 

judges to more quickly adjudicate the 

cases before them. 

Regarding concerns about EOIR 

advancing hearings, the Department 

notes that such concerns are 

speculative, particularly in the current 

operational environment in which many 

hearings are postponed due to the 

outbreak of COVID–19. Nevertheless, 

there is no reason to expect this rule to 

result in an overwhelming number of 

advanced hearings once EOIR’s 

operating posture returns to normal, as 

most immigration judges already have a 

significant number of deadline-eligible 

asylum applications pending on their 

immediate dockets. And, in the event 

that an immigration judge does choose 

to advance a case, practitioners can 

request a continuance as appropriate, 8 

CFR 1003.29, although as the 

Department has discussed, supra, it is 

not clear why aliens with valid asylum 

claims would desire further delay in the 

adjudication of their case. 

The Department also disagrees with 

commenters that this provision raises 

due process concerns. In immigration 

proceedings, due process concerns are 

only implicated if proceedings are ‘‘so 

fundamentally unfair that the alien was 

prevented from reasonably presenting 

his case.’’ Gutierrez v. Holder, 662 F.3d 

1083, 1091 (9th Cir. 2011) (citations 

omitted). Requiring asylum applications 

to be adjudicated within 180 days of 

filing, as explicitly required by statute, 

does not itself make proceedings 

fundamentally unfair or prevent an 

alien from exercising the statutory right 

to present evidence. See INA 

240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B). For 

example, detained applicants routinely 

have their applications adjudicated 

within 180 days without apparent due 

process concerns stemming from this 

timeframe. 

In regard to concerns about the 

asylum adjudication deadline and its 

effect on pending non-asylum 

applications with USCIS, the 

Department notes that this rule does not 

make any changes for non-asylum 

applications, including those pending 

with USCIS. Moreover, a separate 

pending application with USCIS does 

not prevent the immigration court from 

proceeding on the asylum application to 

ensure its timely adjudication. In 

addition, once the immigration court 

has timely adjudicated the asylum 

application, this rule does not prohibit 

applicants from requesting a 

continuance under the ‘‘good cause’’ 

standard or working with DHS counsel 

to file a motion to dismiss based on a 

pending application with USCIS. See 8 

CFR 1003.29, 1239.2(c). 

The Department understands and has 

considered the comments related to 

UAC but finds them either largely 

inapplicable to the rule, insufficiently 

persuasive, or outweighed by the rule’s 

benefits to warrant changing the rule. 

First, the timeframes applied by USCIS 

to adjudicating asylum applications 

filed by genuine UAC are beyond the 

scope of this rulemaking because USCIS 

is a DHS component, and the 

Department offers no opinion regarding 

USCIS’s views on section 

208(d)(5)(A)(iii) of the Act, 8 U.S.C. 

1158(d)(5)(A)(iii). Second, for purposes 

of immigration judge adjudication, the 

provisions of section 208(d)(5)(A)(iii) of 

the Act, 8 U.S.C. 1158(d)(5)(A)(iii), 

apply to ‘‘final administrative 

adjudication of the asylum application, 

not including administrative appeal’’ 

and, thus, would only become 

applicable to the asylum application 

filed by a UAC in removal proceedings 

after that application has been returned 

by USCIS back to the immigration court 

following USCIS’s decision not to grant 

it. In other words, the 180-day 

adjudication deadline in immigration 

proceedings for an asylum application 

filed by a UAC in removal proceedings 

would not be triggered until after USCIS 

has made its initial determination on 

that application under section 

208(b)(3)(C) of the Act, 8 U.S.C. 

1158(b)(3)(C). Moreover, nothing in this 

rule affects USCIS’s initial adjudication 

of asylum applications filed by UAC. Id. 

Significantly, Congress did not 

exempt UAC asylum applications from 

the provisions of section 

208(d)(5)(A)(iii) of the Act, 8 U.S.C. 

1158(d)(5)(A)(iii), as it did for other 

provisions. Compare INA 208(a)(2)(E), 8 

U.S.C. 1158(a)(2)(E) (exempting UAC 

asylum applications from limitations 

imposed by asylum cooperative 

agreements and the one-year filing 

deadline). This evinces congressional 

judgment that all asylum applicants 

should have their applications 

adjudicated within 180 days of filing, 

regardless of the applicant’s individual 

characteristics or status. This also makes 

particular sense for UAC asylum 

applications, as USCIS will already have 

adjudicated their asylum application, 

and the child applicant will only be 

renewing that application with EOIR, as 

opposed to submitting an entirely new 

claim. 

In short, the Department has fully 

considered the issues raised by 

commenters pertaining to UAC. As 

noted, most of the concerns reflect a 


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70The Department notes that retaining 8 CFR 

1208.7 would have no effect on EOIR operations— 

other than risking confusion by the parties 

regarding which agency is responsible for 

adjudicating an EAD application—because its 

previous provisions simply do not apply to EOIR. 

To the contrary, EOIR already excludes applicantcaused delays that meet the exceptional 

circumstances standard from calculating the 

statutory 180-day asylum adjudication clock as 

noted in 8 CFR 1208.7(a)(2). See EOIR Policy 

Memorandum 19–05, Guidance Regarding the 

Adjudication of Asylum Applications Consistent 

with INA § 208(d)(5)(A)(iii) at 2–3 (Nov. 19, 2018) 

(‘‘But, absent delays that qualify as exceptional 

circumstances, 8 CFR 1208.7(a)(2) does not relieve 

Immigration Judges of their obligation to adjudicate 

asylum claims within 180 days.’’), https://

www.justice.gov/eoir/page/file/1112581/download. 

Further, although EOIR provides DHS with access 

to a separate ‘‘clock’’ for purposes of adjudicating 

EAD applications, EOIR does not adjudicate EAD 

applications themselves and, thus, does not 

interpret the time period related to EAD 

applications in INA 208(d)(2), 8 U.S.C. 1158(d)(2). 

Accordingly, although retention of 8 CFR 1208.7 

would not alter EOIR’s existing processes, its 

superfluousness and the risk of confusion related to 

maintaining it regarding which agency is 

responsible for adjudicating EAD applications 

militate strongly in favor of removing it. 

misapprehension of the rule’s contents, 

are directed at statutory provisions that 

cannot be changed by rulemaking, or 

confuse adjudications by the 

Department with those by USCIS. The 

Department is aware of the special 

circumstances and needs of genuine 

UAC and maintains clear policies to 

ensure that their cases are adjudicated 

efficiently and consistent with due 

process. See EOIR, Operating Policies 

and Procedures Memorandum 17–03: 

Guidelines for Immigration Court Cases 

Involving Juveniles, Including 

Unaccompanied Alien Children (Dec. 

20, 2017), available at.gov/eoir/file/ 

oppm17-03/download. Nothing in the 

rule alters those policies, and the 

Department finds that the rule will not 

have any greater effect on UAC than on 

any other group of aliens. If anything, 

the rule will have minimal to no effect 

on UAC because they are unlikely to fall 

within the classes of aliens in 8 CFR 

1208.2(c) and their asylum applications 

are subject to INA 208(d)(5)(A)(iii), 8 

U.S.C. 1158(d)(5)(A)(iii), regardless of 

this rule. Accordingly, on balance, 

commenters’ assertions regarding the 

rule’s impact on UAC are unfounded 

and ultimately unpersuasive. 

In response to commenters’ concerns 

about this rule’s effect on the ability of 

aliens to receive work authorization, 

particularly in light of recent DHS 

regulatory changes, the Department 

notes that Congress explicitly intended 

for asylum applications to be 

adjudicated before the asylum seeker is 

eligible for work authorization. 

Compare INA 208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii) (requiring 

adjudication of asylum applications 

within 180 days of filing), with INA 

208(d)(2), 8 U.S.C. 1158(d)(2) 

(permitting work authorization only 

after a minimum of 180 days has 

elapsed from the filing of an asylum 

application). In this manner, eligibility 

for worth authorization is meant to be 

the exception for aliens whose cases 

exceed the reasonable period of time for 

adjudication, as set by Congress, but not 

the standard or expectation for asylum 

seekers as a matter of course. 

Relatedly, and contrary to 

commenters’ assertions, this rule does 

not interfere with an asylum seeker’s 

statutory right to representation, INA 

240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A), 

due to an inability to receive work 

authorization and thus afford an 

attorney. Rather, aliens who are unable 

to afford fee-based counsel may seek pro 

bono representation or avail themselves 

of other programs to obtain information 

to prepare their cases. Moreover, as 

noted supra, this statutory provision has 

been in effect for more than 20 years, 

and the current representation rate of 

85% strongly suggests it has not 

impacted an alien’s ability to obtain 

representation. 

Lastly, the Department considered the 

commenters’ suggestion that, rather than 

remove and reserve existing 8 CFR 

1208.7, the Department should amend 8 

CFR 1208.7 with clarified regulatory 

language regarding EOIR’s role related 

to work authorization. After 

consideration, the Department 

continues to believe that regulatory 

language regarding work authorization 

is better located solely within DHS’s 

regulations because DHS has sole 

authority over work authorization. 

Further, as discussed in the NPRM, 

removing and reserving 8 CFR 1208.7 

would avoid any potential future 

conflict should DHS amend 8 CFR 

208.7. See 85 FR at 59695. In short, 

EOIR plays no part in adjudicating 

applications for alien EADs, and there is 

no reason to maintain vestigial 

regulations related to a process in which 

EOIR has no role.70

Comment: Commenters were opposed 

to the rule’s ‘‘exceptional 

circumstances’’ definition, stating that 

there are many situations that may not 

rise to the level of exceptional 

circumstances as defined in the rule but 

nevertheless should be sufficient to 

grant additional time beyond 180 days. 

As examples, commenters pointed to 

asylum seekers requiring mental health 

services before they can fully discuss 

their asylum claim or the need to obtain 

corroborating evidence from their home 

countries. Commenters stated that the 

definition as drafted would result in 

increased appeals and remands. 

Similarly, commenters stated that the 

Department should not mirror the 

statutory ‘‘exceptional circumstances’’ 

definition in section 240(e)(5) of the 

Act, 8 U.S.C. 1229a(e)(5), because failing 

to appear at a hearing has different 

equities than needing more time to 

support an asylum application. 

Commenters also stated that the 

exceptional circumstances requirement 

should apply to DHS attorneys and the 

immigration judge as well. One 

commenter likewise requested that the 

Department modify the final rule to 

explicitly include immigration judge 

requests for Department of State 

comments to qualify as an exceptional 

circumstance. 

Response: In regard to concerns with 

the ‘‘exceptional circumstances’’ 

standard, the Department first notes that 

Congress mandated this standard. See 

INA 208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii). The Department has 

reasonably chosen to interpret this 

language in accordance with its explicit 

definition elsewhere in the statute to 

ensure consistency within the statute 

and the long-held definition used by 

parties and the courts. See INA 

240(e)(1), 8 U.S.C. 1229a(e)(1). The 

Department acknowledges commenters’ 

concerns that there may be 

circumstances in which an alien may 

not meet the standard, but that is true 

of any standard. Congress provided an 

undefined standard in the Act, and the 

Department has determined that an 

existing statutory definition elsewhere 

in that statute is a reasonable 

interpretation of a phrase connoting 

circumstances that are generally 

considered ‘‘severe impediments.’’ See 

Chevron, 467 U.S at 844 (requiring 

deference to an agency’s reasonable 

interpretation of an ambiguous statute); 

see also Singh-Bhathal v. INS, 170 F.3d 

943, 947 (9th Cir. 1999) (interpreting 

exceptional circumstances to involve 

‘‘severe impediment[s]’’). Commenters 

have not provided support for the 

contention that implementing such a 

definition will result in increased 

appeals or remands or explained why 

the Department should not adopt a 

compelling existing statutory definition, 

particularly one that comports with 

common-sense notions of ‘‘exceptional 

circumstances.’’ 

The Department declines to create any 

specific exceptions to the definition, 

and it recognizes that no rule can cover 

every possible factual scenario, 

particularly when considering the 

existence of more than 500,000 pending 

asylum applications currently. See 

Executive Office for Immigration 

Review, Adjudication Statistics: Total 

Asylum Applications (Oct. 13, 2020), 


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71For instance, the Department notes that 

individuals may receive treatment for a variety of 

mental health conditions—e.g., obstructive sleep 

apnea hypopnea; caffeine intoxication; tobacco 

withdrawal; gambling disorders—that are not 

normally associated with grounds for asylum and 

would ordinarily not be considered exceptional 

circumstances. See American Psychiatric 

Association, Diagnostic and Statistical Manual of 

Mental Disorders (DSM–5) (5th ed. 2013). 

72For purposes of the 30-day correction period 

for an incomplete or deficient asylum application, 

this rule will apply to any asylum application that 

is attempted to be filed on or after the effective date. 

available at https://www.justice.gov/ 

eoir/page/file/1106366/download. Thus, 

although the Department has considered 

commenters’ suggestion to list 

Department of State comment requests 

as constituting an extraordinary 

circumstance, see 8 CFR 1208.11, the 

Department declines to provide that 

specific exception. Rather, the 

Department will allow immigration 

judges, who are better positioned to 

evaluate the specific facts in each case, 

to make a case-by-case determination on 

whether extraordinary circumstances 

exist. See, e.g., Arredondo v. Lynch, 824 

F.3d 801, 805 (9th Cir. 2016) (explaining 

that, in the failure to appear context, the 

court must look to the particularized 

facts in each case when determining 

whether exceptional circumstances 

exist). 

Similarly, in a vacuum, the 

Department cannot respond to 

commenters’ generalized statements 

about various proposed exceptions 

because asylum applications are 

adjudicated based on their specific facts, 

not on generalized speculative 

assertions or extrapolations. For 

example, a commenter’s suggestion that 

a need for mental health services is an 

exceptional circumstance may be true in 

some cases because it may be indicative 

of ‘‘serious illness of the alien;’’ 

however, unmoored from any larger 

context, the Department cannot say that 

it would be exceptional in all cases, 

particularly if it is unrelated to the 

claim at issue.71 Further, some aliens 

with valid claims who are receiving 

mental health treatment may not wish to 

use that treatment as a basis to delay 

adjudication of their case because they 

seek to obtain relief as quickly as 

possible. The Department cannot make 

a blanket determination based solely on 

generalizations without context that 

such situations will always constitute 

an exceptional circumstance because 

each case is different and considered on 

its own merits. Moreover, the credibility 

of such assertions will always be at 

issue because they provide an exception 

to the general rule, and it is difficult, if 

not impossible, for the Department to 

make generalized credibility 

determinations in a rulemaking. Rather, 

the Department believes that the 

definition established by the rule is 

appropriate and determinations 

regarding which facts may meet the 

standard are more appropriately made 

on a case-by-case basis by an 

immigration judge. 

Finally, in response to other 

commenters’ concerns, the Department 

notes that the definition of exceptional 

circumstances is not limited to 

circumstances faced by aliens. Although 

the rule provides examples of 

exceptional circumstances that may 

affect the alien, which the Department 

excepts will be the most common 

situation, the rule explicitly states that 

exceptional circumstances are those 

‘‘beyond the control of the parties or the 

immigration court.’’ 8 CFR 1003.10(b) 

(final rule) (emphasis added). 

Consequently, exceptional 

circumstances may involve those 

affecting DHS, an immigration judge, or 

the alien. 

6. Retroactivity 

Comment: Several commenters were 

concerned with the rule’s silence on the 

issue of retroactive applicability. 

Commenters asserted that the rule 

should not apply to anyone whose latest 

entry into the United States was prior to 

the rule’s effective date or to any case 

where an NTA has been filed. 

Commenters also urged the Department 

to explicitly specify that the rule does 

not have any retroactive effect or, in the 

alternative, specifically identify the 

individuals and claims to which the 

rule would apply. 

Commenters believed that applying 

the rule retroactively would create 

waste, uncertainty, and inefficiency in 

the immigration court system and 

overburden DHS. For example, 

commenters stated that DHS trial 

attorneys, immigration judges, court 

staff, and asylum officers would be 

immediately overwhelmed if they were 

forced to adjudicate all current pending 

cases within the rule’s 180-day 

timeframe. Moreover, commenters noted 

that work may need to be repeated to 

conform to the rule’s new evidentiary 

standards. Commenters raised concerns 

that court staff would have to spend an 

inordinate amount of unnecessary hours 

going through recently submitted I–589 

forms that have not yet been deemed 

complete to see whether every box is 

filled. 

Moreover, commenters claimed that 

thousands of asylum seekers have relied 

on and structured their lives around the 

current asylum system and would be 

seriously harmed if the rule was applied 

retroactively. For example, commenters 

pointed out that many asylum seekers 

have spent significant amounts of 

money on legal representation to 

prepare and file asylum applications 

that, according to commenters, would 

be unprovable if the rule is applied 

retroactively. Furthermore, commenters 

asserted that asylum seekers likely 

would have made different decisions 

when pursuing immigration relief had 

they known the rules would change 

before their claims were adjudicated. 

Commenters stated that the Department 

failed to adequately consider such 

reliance interests on the current legal 

structure. Several commenters were also 

specifically concerned with the impact 

that retroactivity would have on pro se 

asylum seekers. 

Furthermore, commenters stated that 

applying the rule retroactively would 

violate both the APA and aliens’ due 

process rights. In addition, commenters 

asserted that the rule’s retroactive 

application would conflict with 

congressional intent. 

Other commenters questioned 

whether the 180-day asylum 

adjudication deadline provisions apply 

retroactively to pending cases. 

Commenters stated that the rule would 

create difficulties if applied 

retroactively because large numbers of 

pending cases would need to be 

advanced at the same time. 

Alternatively, commenters stated that 

prospective application of the rule 

would result in existing cases being 

indefinitely delayed as new asylum 

applications are required to be 

adjudicated within 180 days of filing. 

Response: The Department recognizes 

that the potential retroactivity of the 

rule was not clear in the NPRM. To the 

extent that the rule changes any existing 

law, the Department intends to apply it 

prospectively to apply to all asylum 

applications—as well as applications for 

statutory withholding of removal and 

protection under the CAT regulations 

where applicable—that are filed 72 on or 

after the rule’s effective date and, for 

purposes of the 15-day filing deadline, 

to all proceedings initiated under 8 CFR 

1208.2(c) on or after the rule’s effective 

date. 

To the extent that the rule merely 

codifies existing law or authority, 

however, it will apply to pending cases. 

For example, the provisions of the rule 

incorporating section 208(d)(5)(A)(iii) of 

the Act, 8 U.S.C. 1158(d)(5)(A)(iii), into 

the regulations are simply adoptions of 

existing law. In fact, as statutory 

provisions in effect for decades, the 

Department has already been applying 

them to asylum cases, independently of 


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73The Department recognizes that the precise 

regulatory definition of ‘‘exceptional 

circumstances’’ in 8 CFR 1003.10(b) for purposes of 

section 208(d)(5)(A)(iii) of the Act, 8 U.S.C. 

1158(d)(5)(A)(iii), is new. Accordingly, that precise 

definition will apply only to asylum applications 

filed on or after the effective date of the rule, even 

though the provisions of section 208(d)(5)(A)(iii) of 

the Act, 8 U.S.C. 1158(d)(5)(A)(iii), continue to 

apply to all asylum applications currently pending 

that were filed on or after April 1, 1997. 

the rule.73 Accordingly, they do not 

have an impermissible retroactive effect 

applied to pending cases. See Sterling 

Holding Co., LLC, 544 F.3d at 506 

(‘‘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)). 

Similarly, the dictates of Matter of S– 

M–J– and applicable case law, e.g., 85 

FR at 59695, regarding an immigration 

judge’s authority to submit evidence 

and develop the record are pre-existing 

authorities that are merely incorporated 

into the regulations by this rule. 

Accordingly, the provisions 

incorporating that authority also apply 

to pending cases. In fact, as with section 

208(d)(5)(A)(iii) of the Act, 8 U.S.C. 

1158(d)(5)(A)(iii), the Department has 

already been applying these principles 

to asylum cases independently of this 

rule. 

Otherwise, the Department declines to 

adopt commenters’ assertions about 

potential implications of the rule’s 

application to pending cases because 

those comments are wholly speculative 

due to the case-by-case and factintensive nature of many asylum 

adjudications. See Home Box Office, 567 

F.2d at 35 n.58 (‘‘In determining what 

points are significant, the ‘arbitrary and 

capricious’ standard of review must be 

kept in mind . . . Moreover, comments 

which themselves are purely 

speculative and do not disclose the 

factual or policy basis on which they 

rest require no response. There must be 

some basis for thinking a position taken 

in opposition to the agency is true.’’). 

Moreover, as noted, the Department is 

applying much of the rule 

prospectively, and the provisions that 

are not prospective are already 

applicable to pending cases through 

either the Act itself or binding 

precedent. Thus, the alleged underlying 

factual premise of the commenters’ 

concerns is erroneous. 

7. Miscellaneous 

a. Independent Immigration Courts 

Comment: Commenters generally 

expressed concerns that the rule 

undermines the independence of the 

immigration courts from political or 

other inappropriate influence. At least 

one commenter stated that the rule 

highlighted the need for the 

immigration courts and immigration 

judges to be ‘‘independent’’ and outside 

the executive branch. 

Response: These commenters’ 

recommendations are both beyond the 

scope of this rulemaking and the 

Department’s authority. Congress has 

provided for a system of administrative 

hearings for immigration cases, and the 

Department believes that system should 

be maintained. See generally INA 240, 

8 U.S.C. 1229a (establishing 

administrative procedures for removal 

proceedings); 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. 1 

(2018) (written response to Questions 

for the Record of James McHenry, 

Director, Executive Office for 

Immigration Review) (‘‘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.’’). Only Congress has the 

authority to create a new Article I court 

or other framework for the adjudication 

of immigration cases. 

Moreover, the Department reiterates 

that immigration judges already exercise 

‘‘independent judgment and discretion’’ 

in deciding cases, 8 CFR 1003.10(b), and 

are prohibited from considering 

political influences in their decisionmaking, Ethics and Professionalism 

Guide for Immigration Judges, sec. VIII 

(‘‘An Immigration Judge should not be 

swayed by partisan interests or public 

clamor.’’) (Jan. 26, 2011). Thus, contrary 

to commenters’ assertions, immigration 

judges are already independent 

adjudicators who do not render 

decisions based on political influence or 

political interests. As commenters’ 

claims are unfounded in law or practice 

and well beyond the scope of this 

rulemaking, the Department declines to 

base revisions to the rule on them. 

b. Requests for Data 

Comment: Multiple commenters 

included specific requests for further 

information or data points together with 

their comments. For example, one 

commenter requested, inter alia, the 

‘‘[n]umber of successful asylum claims 

as a percentage of total asylum claims 

filed, broken down by immigration 

court, broken down by represented v. 

pro se applicants.’’ 

Response: The Department believes 

that it is has provided the relevant 

needed justifications and explanations 

for this rule in both the preamble to the 

proposed rule and the discussion above. 

To the extent commenters seek further 

specific information, the Department 

first notes that raw data from EOIR’s 

case management database is available 

online, EOIR, FOIA Library: EOIR Case 

Data (Nov. 12, 2020), available at 

https://www.justice.gov/eoir/foialibrary-0, and that EOIR maintains a 

number of publicly-available statistics 

and reports, including those related to 

asylum applications, see EOIR, EOIR 

Workload and Adjudication Statistics 

(Oct. 30, 2020), available at https://

www.justice.gov/eoir/workload-andadjudication-statistics. The Department 

also reminds commenters of the ability 

to submit requests to the Department 

pursuant to the Freedom of Information 

Act (FOIA). Such requests should be 

submitted to the EOIR Office of General 

Counsel: U.S. Department of Justice, 

Executive Office for Immigration 

Review, Office of General Counsel— 

FOIA Service Center, 5107 Leesburg 

Pike, Suite 2150, Falls Church, VA 

22041; Email address: 

EOIR.FOIARequests@usdoj.gov; FOIA 

Public Liaison: Crystal Souza; 

Telephone: 703–605–1297. 

Further information regarding EOIR’s 

FOIA request procedures is available on 

the EOIR website at: https://

www.justice.gov/eoir/freedominformation-act-foia. 

8. Concerns With Regulatory 

Requirements 

Comment: Commenters generally 

expressed concern that the Department 

did not comply with Executive Orders 

12866 and 13563 because the 

Department did not adequately consider 

the costs and possible alternatives to the 

provisions in the rule due to the 

significance of many of the rule’s 

provisions. For example, commenters 

asserted that the rule’s effects on filing 

deadlines, the availability of 

continuances, and evidentiary 

submissions would in fact impact aliens 

in proceedings, particularly pro se 

individuals, and immigration 

practitioners, contrary to the 

Department’s assertions in the proposed 

rule. 

Similarly, commenters disagreed with 

the Department’s assertion, pursuant to 

the Regulatory Flexibility Act 

requirements, that the rule would ‘‘not 

have a significant economic impact on 

a substantial number of small entities’’ 


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74See, e.g., 85 FR at 52491. 

75As discussed, supra, substantial parts of the 

rule merely incorporate existing law, including 

principles enshrined in statute or binding 

precedent. The new portions include: A new filing 

deadline for aliens in proceedings under 8 CFR 

1208.2(c), a new deadline for returning asylum 

applications rejected as incomplete or deficient, a 

new definition of ‘‘exceptional circumstances’’ for 

purposes of section 208(d)(5)(A)(iii) of the Act, 8 

U.S.C. 1158(d)(5)(A)(iii), and clarification of the 

evidentiary status of government and nongovernment reports. None of what is new should 

require an extensive amount of time to review or 

understand by practitioners who are already 

experienced at meeting deadlines, correcting 

incomplete applications, and arguing both whether 

a particular circumstance meets the definition of an 

exceptional circumstance and the weight that an 

adjudicator should accord to various evidentiary 

submissions. 

and that the rule only regulates 

individuals and not small entities. 85 

FR at 59697. For example, commenters 

stated 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 law 

firms or other organizations that appear 

before EOIR. Commenters compared the 

rule to other recent proposed rule where 

the Department acknowledged the effect 

on practitioners,74 which the 

commenters stated is further evidence of 

the rule’s effect. 

At least one commenter argued that 

the rule should be considered a ‘‘major 

rule’’ under the Congressional Review 

Act (‘‘CRA’’) because the rule’s effect 

will exceed the $100 million threshold. 

The commenter explained that the rule’s 

economic effect would result from 

increased DHS detention costs due to 

increased application rejections, effects 

on reduced employment authorization 

availability, and increased costs to 

government agencies or subsidized 

entities that administer social services 

programs. 

Response: The Department reiterates 

its response to similar comments 

regarding the rule’s alleged effects on 

particular groups, supra, and adds the 

following further response. Overall, the 

Department disagrees with commenters’ 

contention that it did not comply with 

Executive Orders 12866 and 13653. The 

Department considered all costs and 

possible alternatives to the provisions in 

the rule, and the fact that the 

Department did not adopt an alternative 

suggested by commenters—or did not 

retain the status quo—does not mean 

that such alternatives were not 

considered. 

As noted in the NPRM, the 

Department believes that the rule will 

provide a significant net benefit by 

allowing for the expeditious and 

efficient resolution of asylum cases. 85 

FR at 59698. These benefits will ensure 

that the Department’s case volume does 

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, 

requesting continuances, or presenting 

evidence in immigration court. 

Moreover, the rule is not imposing any 

new costs on asylum seekers. 

Respondents are already required to 

submit completed asylum applications 

in order to have them adjudicated, and 

immigration judges already have the 

authority to set deadlines. Additionally, 

any costs imposed on attorneys or 

entities will be minimal and limited to 

the time it will take to become familiar 

with the rule.75 Immigration 

practitioners are already subject to 

professional responsibility rules 

regarding workload management, 8 CFR 

1003.102(q)(1), and are already 

accustomed to preparing and filing 

documents related to asylum claims 

according to deadlines established by 

immigration judges. Further, the 

Department notes that attorneys have 

been aware of the 180-day adjudication 

deadline for asylum applications for 

over two decades. Finally, the generally 

prospective application of the rule— 

other than the parts that are already 

established by statute or precedent and 

under which practitioners have been 

practicing for over 20 years—further 

diminishes the already-minimal effect of 

the rule on practitioners, as no 

practitioners will be required to 

reevaluate any cases or arguments that 

they are currently pursuing. 

The Department also rejects 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 

Department is 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, no commenters on this point 

acknowledged or recognized that the 

Department reached a similar 

conclusion in 1997 involving a far more 

sweeping and comprehensive 

rulemaking regarding asylum 

adjudications. See Inspection and 

Expedited Removal of Aliens; Detention 

and Removal of Aliens; Conduct of 


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76The Department’s position for decades has been 

that for purposes of the RFA and rulemakings 

related to EOIR proceedings, rulemakings which 

directly regulate aliens—rather than directly 

regulating practitioners—do not regulate small 

entities. See, e.g., Powers and Duties of Service 

Officers; Availability of Service Records, 51 FR 

2895 (Jan. 22, 1986) (proposed rule for changes to 

EOIR’s fee schedule for appeals and motions and 

stating, ‘‘In accordance with 5 U.S.C. 605(b), the 

Attorney General certifies that the rule will not 

have a significant economic impact on a substantial 

number of small entities.’’) and 51 FR 39993, 39994 

(Nov. 4, 1986) (final rule adopting in pertinent part 

the proposed changes to the fee schedule and 

maintaining the position that changes to the fee 

schedule will not have a significant impact on a 

substantial number of small entities). Even when 

the Department has directly regulated practitioners, 

it has found no significant impact on a substantial 

number of small entities when the rule is simply 

similar to existing regulatory procedures. See, e.g., 

Professional Conduct for Practitioners—Rules and 

Procedures, and Representation and Appearances, 

73 FR 76914, 76922 (Dec. 18, 2008) (‘‘The Attorney 

General, in accordance with the Regulatory 

Flexibility Act (5 U.S.C. 605(b)), has reviewed this 

regulation and, by approving it, certifies that this 

rule will not have a significant economic impact on 

a substantial number of small entities. This rule 

affects only those practitioners who practice 

immigration law before EOIR. This rule will not 

affect small entities, as that term is defined in 5 

U.S.C. 601(6), because the rule is similar in 

substance to the existing regulatory process.’’). The 

Department is unaware of any reasonable dispute or 

challenge to this longstanding position and finds no 

reason to depart from its previous well-established 

and accepted view. 

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 far less significant in 

scope than the 1997 rulemaking, and 

part of the rule simply incorporates 

principles that are already in effect 

through statutory enactment or binding 

precedent. Moreover, this final rule is 

similar to previous rules, 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.76 The 

Department thus believe that the 

experience of implementing prior rules 

supports its 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. 

The rule does not limit in any way the 

ability of practitioners to accept cases, 

manage dockets, or assess fees. Nothing 

in the rule directly, or indirectly, 

regulates practitioners or entities; rather, 

the rule regulates individual asylum 

seekers. Practitioners remain free to 

accept cases, manage dockets, and 

charge fees as they see fit. Moreover, 

commenters’ concerns regarding how 

practitioners will be affected by the rule 

either are wholly speculative due to the 

case-by-case nature of asylum 

adjudication, fail to account for the 

provisions of the rule that have already 

been in effect for decades, or are beyond 

the scope of this rulemaking. As such, 

the Department finds that further 

analysis under the Regulatory 

Flexibility Act is not warranted. In 

short, there is no evidence that the rule 

will have a significant impact on small 

entities as contemplated by the 

Regulatory Flexibility Act or an 

applicable executive order. 

Furthermore, the Department does not 

believe that the rule should be 

considered a ‘‘major rule’’ under the 

CRA. Assertions that the rule will result 

in increased DHS detention costs, 

decreased employment authorization 

availability, and increased costs to 

government agencies and subsidized 

entities are purely speculative. In fact, 

the rule will likely reduce costs to the 

government by allowing for a more 

streamlined and efficient asylum 

process. Additionally, the commenter 

who raised this concern presented no 

evidence that the rule would result in 

an annual effect on the economy of $100 

million or more, and the Department is 

aware of no such evidence. 

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 Department has reviewed this 

rule in accordance with the Regulatory 

Flexibility Act and has determined that 

it will not have a significant economic 

impact on a substantial number of small 

entities. 5 U.S.C. 605(b). The rule will 

not regulate ‘‘small entities’’ as that term 

is defined in 5 U.S.C. 601(6). Only 

individuals, rather than entities, are 

eligible to apply for asylum, and only 

individuals are placed in immigration 

proceedings. The Department also 

incorporates by reference herein the 

discussion in Section II.C.8, supra. 

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 

This rule would not be a major rule 

as defined by section 804 of the 

Congressional Review Act. 5 U.S.C. 

804(2). This rule will not result in an 

annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

E. Executive Orders 12866, 13563 and 

13771 

The Office of Information and 

Regulatory Affairs of the Office of 

Management and Budget (‘‘OMB’’) has 

determined that this rule is a 

‘‘significant regulatory action’’ under 

section 3(f) of Executive Order 12866. 

Accordingly, the regulation has been 

submitted to OMB for review. The 

Department certifies that this regulation 

has been drafted in accordance with the 

principles of Executive Order 12866, 

section 1(b), Executive Order 13563, and 

Executive Order 13771. 

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 Department believes that this rule 

will effectuate congressional intent to 

resolve cases in an expeditious manner 

and will provide significant net benefits 

relating to EOIR proceedings by 

allowing the agency to resolve cases 

more quickly. Section 1(b)(6) of 

Executive Order 12866 states that 

‘‘[e]ach agency shall assess both the 

costs and the benefits of the intended 

regulation and, recognizing that some 

costs and benefits are difficult to 

quantify, propose or adopt a regulation 

only upon a reasoned determination 

that the benefits of the intended 

regulation justify its costs,’’ As of 

October 13, 2020, EOIR had over 


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580,000 pending cases with an 

application for asylum and withholding 

of removal, and the median processing 

time for a non-detained case with an 

asylum application is 1133 days. EOIR, 

Adjudication Statistics: Total Asylum 

Applications (Oct. 13, 2020), available 

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

file/1106366/download. This rule will 

assist EOIR in adjudicating new asylum 

cases more efficiently to ensure that this 

volume does not increase to an 

insurmountable degree. No costs to the 

Department or to respondents are 

expected. Respondents are already 

required to submit complete asylum 

applications to have them adjudicated, 

and immigration judges already have 

authority to set deadlines. 

The Department notes that this rule 

will not impose any new fees. 

Consistent with the treatment of other 

applications referred by USCIS that are 

renewed in immigration proceedings, an 

alien filing a USCIS Form I–589 with 

USCIS who is then referred to DOJ for 

immigration proceedings would pay the 

application fee only once. The 

Department’s fees for applications 

published by DHS are established in 

accordance with 8 CFR 1103.7(b)(4)(ii), 

which, in turn, cross-references the DHS 

fee schedule. Given the inextricable 

nature of the two agencies’ asylum 

processes and the benefit of not treating 

applicants for substantially similar 

benefits differently if they file with DOJ 

or with DHS, the Department’s 

regulations have included this crossreference for several years, and this rule 

does not alter it. The Department is also 

not authorized, per regulation, to waive 

the application fee for an application 

published by DHS if DHS identifies that 

fee as non-waivable. 8 CFR 1103.7(c). 

The proposed rule does not alter that 

regulatory structure. 

The Department believes that this rule 

will impose only minimal, if any, direct 

costs on the public. Any new minimal 

cost would be limited to the cost of the 

public familiarizing itself with this rule, 

though because parts of the rule merely 

codify longstanding statutory provisions 

and certain precedents or otherwise 

reflect longstanding pre-existing 

regulatory provisions, there is little new 

in the rule that requires familiarization. 

An immigration judge’s ability to set 

filing deadlines is already established 

by regulation, and filing deadlines for 

both applications and supporting 

documents are already a wellestablished aspect of immigration court 

proceedings guided by regulations and 

the Immigration Court Practice Manual. 

See generally EOIR, Immigration Court 

Practice Manual (Nov. 25, 2020), 

available at https://www.justice.gov/ 

eoir/office-chief-immigration-judge-0. 

The rule also does not require an 

immigration judge to schedule a merits 

hearing at any particular time after the 

application is filed, as long as the 

application is adjudicated within 180 

days absent exceptional circumstances, 

which is an existing and longstanding 

statutory requirement, see INA 

208(d)(5)(A)(iii), 8 U.S.C. 

1158(d)(5)(A)(iii). 

Moreover, this rule does not require 

that an alien wait until the immigration 

judge sets a filing deadline before filing 

an application, and an alien remains 

free to file his or her asylum application 

with the immigration court before the 

first hearing. Asylum applications are 

frequently filed prior to or at an initial 

immigration court hearing already, and 

existing regulations allow for 

supplementing an initial application as 

appropriate, subject to an immigration 

judge’s discretion. Most aliens filing 

asylum applications in pending 

immigration proceedings—85 percent— 

have representation, see EOIR, Current 

Representation Rates (Oct. 13, 2020), 

available at https://www.justice.gov/ 

eoir/page/file/1062991/download, and 

the proposed rule is not expected to 

increase any burdens on practitioners, 

who are already subject to professional 

responsibility rules regarding workload 

management, 8 CFR 1003.102(q)(1), and 

who are already accustomed to 

preparing and filing documents related 

to asylum claims according to deadlines 

established by an immigration judge. 

The Department acknowledges that 

establishing a fixed deadline to file an 

asylum application in some types of 

immigration proceedings may reduce 

the availability of prior dilatory tactics 

as a matter of strategy, though it also 

recognizes that attorneys have been 

aware of the 180-day adjudication 

deadline for asylum applications for 

over two decades and are familiar with 

the similar existing 10-day deadline for 

alien crewmember asylum applications 

in 8 CFR 1208.5(b)(1)(ii). 

No costs to the Department are 

associated with the rule. The changes do 

not create an incentive that would cause 

DHS to file more cases and, thus, are not 

expected to result in an increase in the 

number of cases to be adjudicated by 

EOIR. Further, the changes provide 

guidance for administrative decisionmaking but do not require immigration 

judges to make more decisions or to 

prolong immigration proceedings. This 

costs of this rule are considered de 

minimis for purposes of Executive Order 

13771. 

F. Executive Order 13132 (Federalism) 

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. Executive Order 12988 (Civil Justice 

Reform) 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

H. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Public Law 104–13, 44 U.S.C. 

chapter 35, and its implementing 

regulations, 5 CFR part 1320, all 

agencies are required to submit to OMB, 

for review and approval, any reporting 

requirements inherent in a rule. This 

rule may require edits to the USCIS 

Form I–589, Application for Asylum 

and for Withholding of Removal, 

because the filing of an asylum 

application now requires submission, 

for any required fee, of a fee receipt or 

alternate proof of payment. If necessary, 

a separate notice will be published in 

the Federal Register requesting 

comments on the information collection 

impacts of this rule and the revised 

USCIS Form I–589. 

List of Subjects 

8 CFR Part 1003 

Administrative practice and 

procedure, Aliens, Immigration, Legal 

services, Organization and functions 

(Government agencies). 

8 CFR Part 1103 

Administrative practice and 

procedure, Authority delegations 

(Government agencies), Reporting and 

recordkeeping requirements. 

8 CFR Part 1208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 1240 

Administrative practice and 

procedure, Aliens. 

Accordingly, for the reasons set forth 

in the preamble, and by the authority 

vested in the Director, Executive Office 

for Immigration Review, by the Attorney 


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General Order Number 4910–2020, the 

Department amends 8 CFR parts 1003, 

1103, 1208, and 1240 as follows: 

PART 1003—EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW 

■ 1. 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 Pub. L. 105–100, 111 Stat. 

2196–200; sections 1506 and 1510 of Pub. L. 

106–386, 114 Stat. 1527–29, 1531–32; section 

1505 of Pub. L. 106–554, 114 Stat. 2763A– 

326 to –328. 

■ 2. In § 1003.8, revise paragraph (a)(1) 

to read as follows: 

§ 1003.8 Fees before the Board. 

(a) * * * 

(1) When a fee is required. Except as 

provided in paragraph (a)(2) of this 

section and 8 CFR 1208.4(d)(3), a filing 

fee prescribed in 8 CFR 1103.7, or a fee 

waiver request pursuant to paragraph 

(a)(3) of this section, is required in 

connection with the filing of an appeal, 

a motion to reopen, or a motion to 

reconsider before the Board. 

* * * * * 

■ 3. In § 1003.10, add three sentences at 

the end of paragraph (b) to read as 

follows: 

§ 1003.10 Immigration judges. 

* * * * * 

(b) * * * In the absence of 

exceptional circumstances, an 

immigration judge shall complete 

administrative adjudication of an 

asylum application within 180 days 

after the date an application is filed. For 

purposes of this paragraph (b) and of 

§§ 1003.29 and 1240.6 of this chapter, 

the term exceptional circumstances 

refers to exceptional circumstances 

(such as battery or extreme cruelty to 

the alien or any child or parent of the 

alien, serious illness of the party or 

immigration judge, or serious illness or 

death of the spouse, child, or parent of 

the alien, but not including less 

compelling circumstances) beyond the 

control of the parties or the immigration 

court. A finding of good cause does not 

necessarily mean that an exceptional 

circumstance has also been established. 

* * * * * 

■ 4. In § 1003.24, revise paragraph (c)(1) 

to as follows: 

§ 1003.24 Fees pertaining to matters within 

the jurisdiction of an immigration judge. 

* * * * * 

(c) * * * 

(1) When filed during proceedings. 

When an application for relief is filed 

during the course of proceedings, the fee 

for that application must be paid in 

advance to the Department of Homeland 

Security in accordance with 8 CFR 

103.7 and 8 CFR part 106. The fee 

receipt must accompany the application 

when it is filed with the immigration 

court except as provided by 8 CFR 

1208.4(d)(3). 

* * * * * 

■ 5. Revise § 1003.29 to read as follows: 

§ 1003.29 Continuances. 

The immigration judge may grant a 

motion for continuance for good cause 

shown, provided that nothing in this 

section shall authorize a continuance 

that causes the adjudication of an 

asylum application to exceed 180 days 

in the absence of exceptional 

circumstances, consistent with section 

208(d)(5)(A)(iii) of the Act and 

§ 1003.10(b). 

■ 6. In § 1003.31, revise paragraphs (b) 

and (c) to read as follows: 

§ 1003.31 Filing documents and 

applications. 

* * * * * 

(b) Except as provided in 8 CFR 

1240.11(f) and 1208.4(d)(3), all 

documents or applications requiring the 

payment of a fee must be accompanied 

by a fee receipt from the Department of 

Homeland Security, an alternate proof 

of payment consistent with 

§ 1208.4(d)(3), or by an application for 

a waiver of fees pursuant to § 1003.24. 

Except as provided in § 1003.8(a) and 

(c), any fee relating to Immigration 

Judge proceedings shall be paid to, and 

accepted by, any Department of 

Homeland Security office authorized to 

accept fees for other purposes pursuant 

to § 1103.7(a) of this chapter. 

(c) Subject to § 1208.4(d) of this 

chapter, the immigration judge may set 

and extend time limits for the filing of 

applications and related documents and 

responses thereto, if any, provided that 

nothing in this section shall authorize 

setting or extending time limits for the 

filing of documents after an asylum 

application has been filed that would 

cause the adjudication of an asylum 

application to exceed 180 days in the 

absence of exceptional circumstances, 

consistent with section 208(d)(5)(A)(iii) 

of the Act and § 1003.10(b). If an 

application or document is not filed 

within the time set by the immigration 

judge, the opportunity to file that 

application or document shall be 

deemed waived. 

* * * * * 

PART 1103—APPEALS, RECORDS, 

AND FEES 

■ 7. The authority citation for part 1103 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1304, 

1356; 31 U.S.C. 9701; 28 U.S.C. 509, 510. 

■ 8. In § 1103.7, revise paragraph (a)(3) 

to read as follows: 

§ 1103.7 Fees. 

(a) * * * 

(3) All other fees payable in 

connection with immigration 

proceedings. Except as provided in 8 

CFR 1003.8, the Executive Office for 

Immigration Review does not accept the 

payment of any fee relating to Executive 

Office for Immigration Review 

proceedings. Instead, such fees, when 

required, shall be paid to, and accepted 

by, an office of the Department of 

Homeland Security authorized to accept 

fees, as provided in 8 CFR 103.7(a)(1) 

and 8 CFR part 106. The Department of 

Homeland Security shall return to the 

payer, at the time of payment, a receipt 

for any fee paid, and shall also return to 

the payer any documents, submitted 

with the fee, relating to any immigration 

proceeding. The fee receipt and the 

application or motion shall then be 

submitted to the Executive Office for 

Immigration Review except as provided 

by 8 CFR 1208.4(d)(3). Remittances to 

the Department of Homeland Security 

for applications, motions, or forms filed 

in connection with immigration 

proceedings shall be payable subject to 

the provisions of 8 CFR 103.7(a)(2) and 

8 CFR part 106. 

* * * * * 

PART 1208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL 

■ 9. 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 Pub. L. 110– 

229; Pub. L. 115–218. 

■ 10. In § 1208.3, revise paragraph (c)(3) 

to read as follows: 

§ 1208.3 Form of application. 

* * * * * 

(c) * * * 

(3) An asylum application must be 

properly filed in accordance with the 

form instructions and with §§ 1003.24, 

1003.31(b), and 1103.7(a)(3) of this 

chapter, including payment of a fee, if 

any, as explained in the instructions to 

the application. For purposes of filing 

with an immigration court, an asylum 

application is incomplete if it does not 

include a response to each of the 


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required questions contained in the 

form, is unsigned, is unaccompanied by 

the required materials specified in 

paragraph (a) of this section, is not 

completed and submitted in accordance 

with the form instructions, or is 

unaccompanied by any required fee 

receipt or other proof of payment as 

provided in § 1208.4(d)(3). The filing of 

an incomplete application shall not 

commence the period after which the 

applicant may file an application for 

employment authorization. An 

application that is incomplete shall be 

rejected by the immigration court. If an 

applicant wishes to have his or her 

application for asylum considered, he or 

she shall correct the deficiencies in the 

incomplete application and refile it 

within 30 days of rejection. Failure to 

correct the deficiencies in an 

incomplete application or failure to 

timely refile the application with the 

deficiencies corrected, absent 

exceptional circumstances as defined in 

§ 1003.10(b) of this chapter, shall result 

in a finding that the alien has 

abandoned that application and waived 

the opportunity to file such an 

application; 

* * * * * 

■ 11. In § 1208.4, add paragraph (d) to 

read as follows: 

§ 1208.4 Filing the application. 

* * * * * 

(d) Filing deadline. (1) For any alien 

in asylum-and-withholding-only 

proceedings pursuant to § 1208.2(c)(1) 

and paragraph (b)(3)(iii) of this section, 

the immigration judge shall comply 

with the requirements of 

§ 1240.11(c)(1)(i) through (iii) of this 

chapter and shall set a deadline of 

fifteen days from the date of the alien’s 

first hearing before an immigration 

judge by which the alien must file an 

asylum application, which includes an 

application for withholding of removal 

under section 241(b)(3) of the Act and 

protection under §§ 1208.16 through 

1208.18. The immigration judge may 

extend the deadline for good cause. If 

the alien does not file an asylum 

application by the deadline set by the 

immigration judge, the immigration 

judge shall deem the opportunity to file 

such an application waived, and the 

case shall be returned to the Department 

of Homeland Security. For any alien in 

proceedings pursuant to § 1208.2(c)(2), 

the immigration judge shall comply 

with the requirements of 

§ 1240.11(c)(1)(i) through (iii) and shall 

set a deadline of fifteen days from the 

date of the alien’s first hearing before an 

immigration judge by which the alien 

must file an application for withholding 

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

the Act, which includes an application 

for protection under §§ 1208.16 through 

1208.18. The immigration judge may 

extend the deadline for good cause. If 

the alien does not file an application by 

the deadline set by the immigration 

judge, the immigration judge shall deem 

the opportunity to file such an 

application waived, and the case shall 

be returned to the Department of 

Homeland Security. 

(2) If the alien must pay a fee for 

submission of the asylum application, 

the alien must submit the DHS-issued 

fee receipt together with the application 

by the deadline set by the immigration 

judge in paragraph (d)(1) of this section. 

(3) If the alien has paid any required 

fee but has not received the fee receipt 

from DHS by the deadline set by the 

immigration judge, the alien must 

instead provide to the immigration court 

a copy of proof of the payment to DHS 

with the asylum application. The alien 

must then submit a copy of the fee 

receipt by a new deadline set by the 

immigration judge. If the immigration 

judge does not set a deadline, the alien 

must submit the fee receipt no later than 

45 days after the date of filing of the 

application. 

§ 1208.7 [Removed and Reserved] 

■ 12. Remove and reserve § 1208.7. 

§ 1208.9 [Removed and Reserved] 

■ 13. Remove and reserve § 1208.9. 

■ 14. In § 1208.12, revise paragraph (a) 

to read as follows: 

§ 1208.12 Reliance on information 

compiled by other sources. 

(a) In deciding an asylum application, 

which includes an application for 

withholding of removal under 241(b)(3) 

of the Act and protection under 

§§ 1208.16 through 1208.18, or in 

deciding whether the alien has a 

credible fear of persecution or torture 

pursuant to § 1208.30, or a reasonable 

fear of persecution or torture pursuant 

to § 1208.31, an immigration judge may 

rely on material provided by the 

Department of State, other Department 

of Justice offices, the Department of 

Homeland Security, or other U.S. 

Government agencies, and may rely on 

foreign government and nongovernmental sources if those sources 

are determined by the judge to be 

credible and the material is probative. 

On his or her own authority, an 

immigration judge may submit relevant 

evidence into the record, if the source 

is credible and the evidence is 

probative, and may consider it in 

deciding an asylum application, which 

includes an application for withholding 

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

the Act and protection under §§ 1208.16 

through 1208.18, provided that a copy 

of the evidence has been provided to 

both parties and both parties have had 

an opportunity to comment on or object 

to the evidence prior to the issuance of 

the immigration judge’s decision. 

* * * * * 

PART 1240—PROCEEDINGS TO 

DETERMINE REMOVABILITY OF 

ALIENS IN THE UNITED STATES 

■ 15. The authority citation for part 

1240 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1158, 1182, 

1186a, 1186b, 1225, 1226, 1227, 1228, 1229a, 

1229b, 1229c, 1252 note, 1361, 1362; secs. 

202 and 203, Pub. L. 105–100 (111 Stat. 2160, 

2193); sec. 902, Pub. L. 105–277 (112 Stat. 

2681). 

■ 16. Revise § 1240.6 to read as follows: 

§ 1240.6 Postponement and adjournment 

of hearing. 

After the commencement of the 

hearing, the immigration judge may 

grant a reasonable adjournment either at 

his or her own instance or, for good 

cause shown, upon application by the 

respondent or the Department of 

Homeland Security, provided that 

nothing in this section shall authorize 

an adjournment that causes the 

adjudication of an asylum application to 

exceed 180 days in the absence of 

exceptional circumstances, consistent 

with section 208(d)(5)(A)(iii) of the Act 

and § 1003.10(b) of this chapter. 

James R. McHenry III, 

Director, Executive Office for Immigration 

Review, Department of Justice. 

[FR Doc. 2020–27210 Filed 12–15–20; 8:45 am] 

BILLING CODE 4410–30–P 


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