Thursday, June 11, 2020

The Department of Justice and the Department of Homeland Security Propose Rule on Procedures for Asylum and Withholding of Removal


The Trump administration has engaged in a massive transformation of the asylum system in the United States.  And the effort to reform the system is not finished.    In what have been described as "sweeping asylum restrictions," the administration are proposing new changes to the asylum process.  

This announcement ("The Department of Justice and the Department of Homeland Security Propose Rule on Procedures for Asylum and Withholding of Removal") was released on June 9:

"The Department of Justice and the Department of Homeland Security (collectively, the Departments) submitted to the Federal Register for publication a notice of proposed rulemaking (NPRM) that would amend multiple provisions of the Departments’ regulations to create more efficient procedures for the adjudication of claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) regulations.  The NPRM is now available for public inspection and is expected to publish in the Federal Register in the near future.

The NPRM proposes to make the following changes to the Departments’ regulations:

  • Amend the regulations governing credible fear determinations so that individuals found to have such a fear will have their claims for asylum, withholding of removal, or protection under the CAT adjudicated by an immigration judge in streamlined proceedings, rather than in immigration court proceedings conducted under section 240 of the Immigration and Nationality Act (INA);
  • Permit immigration judges to pretermit asylum applications without a hearing if the application does not demonstrate prima facie eligibility for relief;
  • Clarify when an application is “frivolous”;
  • Clarify standards for the adjudication of asylum and withholding claims including amendments to the definitions of the terms “particular social group,” “political opinion,” “persecution,” and “firm resettlement”;
  • Outline factors for adjudicators to consider when making discretionary determinations;
  • Clarify the standard for determining the acquiescence of a public official or other person acting in an official capacity under the CAT regulations;
  • Raise the burden of proof for the threshold screening of withholding and CAT protection claims from “significant possibility” to a “reasonable possibility” standard;
  • Apply bars to asylum and withholding when making credible fear determinations; and
  • Clarify the requirement to protect certain information contained in asylum applications.

Overall, the NPRM, consistent with the INA, would allow the Departments to more effectively separate baseless claims from meritorious ones.  This would better ensure groundless claims do not delay or divert resources from deserving claims.  The Departments will consider written comments regarding the NPRM that are submitted per the instructions in the publication."


UPDATE (6/11, noon PST):  Here is a summary of the details of the proposed rule.     Download PROPOSED RULE ON ASYLUM_WH_CAT_SUMMARY

UPDATE (6/12, 2:45 p.m. PST):  America's Voice offers this critical assessment of the proposed asylum rule.

UPDATE (June 14, 8;35 a.m. PST):  Immigration Impact considers the proposed rule and offers this final assessment:  "In sweeping new proposed regulations announced on June 11, the Trump administration took the first step toward administering a final blow to the U.S. asylum system." (emphasis added). 

“The Trump administration’s proposed regulation would represent the end of the asylum system as we know it. It directly conflicts with the immigration statute, upends years of caselaw, and intentionally raises asylum standards to unreachable heights…

…Asylum has already been greatly weakened by years of sustained attacks from the Trump administration, and this regulation would be the final blow to our once proud legacy of the United States as a refuge for vulnerable and persecuted populations of the world.”

– Beth Werlin, executive director of the American Immigration Council


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